Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C.
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FORM S-8
REGISTRATION STATEMENT
under
THE SECURITIES ACT OF 1933
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NATHAN'S FAMOUS, INC.
(Exact name of registrant as specified in its charter)
Delaware 11-3166443
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
1400 Old Country Road, Westbury, New York 11590
(Address of principal executive offices) (Zip Code)
COMMON STOCK PURCHASE WARRANTS
(Full Title of the Plan)
Wayne Norbitz, President
Nathan's Famous, Inc.
1400 Old Country Road
Westbury, New York 11590
(Name and address of agent for service)
(516) 338-8500
(Telephone number, including area code, of agent for service)
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copy to:
Nancy D. Lieberman, Esq.
Blau, Kramer, Wactlar & Lieberman, P.C.
100 Jericho Quadrangle
Jericho, New York 11753
(516) 822-4820
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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Title of Each Proposed Maximum Proposed Maximum
Class of Securities Amount to be Offering Price Per Aggregate Offering Amount of
To be Registered Registered Security (1) Price (1) Registration Fee
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<S> <C> <C> <C> <C>
Common Stock,
par value $.01 per 150,000 shs.(2) $3.50 $525,000 $146
share together with
the associated
common stock
purchase rights
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<FN>
(1) Estimated solely for the purpose of calculating the registration fee, based
upon the average of the bid and asked prices of the Company's Common Stock on
the NASDAQ National Market System on August 24, 1999.
(2) This Registration Statement also covers an indeterminate number of
additional shares of Common Stock which may become issuable pursuant to
anti-dilution and adjustment provisions of the Warrants.
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</FN>
</TABLE>
<PAGE>
In July 1997, Nathan's Famous, Inc. issued to Howard M. Lorber, Nathans'
Chairman of the Board, a common stock purchase warrant to purchase 150,000
shares of Nathans' common stock at a price of $3.25 per share. The warrant was
issued by Nathan's in order to induce Mr. Lorber to extend the term of his
employment agreement until July 2001. Prior to the extension, his employment
contract was scheduled to expire in October 1997.
The warrant, which has a term of ten years, initially vested 37,500 shares
on July 17, 1998, 37,500 shares on July 17, 1999, 37,500 shares on July 17, 2000
and 37,500 shares on July 17, 2001. By action of the Board of Directors, the
vesting was accelerated and 75,000 shares vested on July 23, 1999.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
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The Registrant hereby incorporates by reference into this Registration
Statement the documents listed in (a) and (b) below:
(a) The Registrant's Annual Report on Form 10-K for the fiscal year
ended March 28, 1999;
(b) The Registrant's Quarterly Report on Form 10-Q for the fiscal
quarter ended June 27, 1999; and
(c) The description of the class of securities to be offered which is
contained in a registration statement filed under Section 12 of
the Securities Exchange Act of 1934 (File No. 0- 3189) including
any amendment or report filed for the purpose of updating such
description.
All documents subsequently filed by the Registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934,
prior to the filing of a post-effective amendment which indicates that all
securities offered have been sold or which indicates that all securities offered
have been sold or which deregisters all such securities then remaining unsold,
shall be deemed to be incorporated by reference in this Registration Statement
and to be a part hereof from the date of filing of such documents.
Item 4. Description of Securities.
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Not applicable.
Item 5. Interests of Named Experts and Counsel.
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Not applicable.
Item 6. Indemnification of Directors and Officers.
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Under the provisions of the Certificate of Incorporation and By-Laws
of Registrant, each person who is or was a director or officer of Registrant
shall be indemnified by Registrant as of right to the full extent permitted or
authorized by the General Corporation Law of Delaware.
Under such law, to the extent that such person is successful on the
merits of defense of a suit or proceeding brought against him by reason of the
fact that he is a director or officer of Registrant, he shall be indemnified
against expenses (including attorneys' fees) reasonably incurred in connection
with such action.
If unsuccessful in defense of a third-party civil suit or a criminal
suit is settled, such a person shall be indemnified under such law against both
(1) expenses (including attorneys' fees) and (2) judgments, fines and amounts
paid in settlement if he acted in good faith and in a manner he reasonably
believed to be in, or not opposed to, the best interests of Registrant, and with
respect to any criminal action, had no reasonable cause to believe his conduct
was unlawful.
If unsuccessful in defense of a suit brought by or in the right of
Registrant, or if such suit is settled, such a person shall be indemnified under
such law only against expenses (including attorneys' fees) incurred in the
defense or settlement of such suit if he acted in good faith and in a manner he
reasonably believed to be in, or not opposed to, the best interests of
Registrant except that if such a person is adjudicated to be liable in such suit
for negligence or misconduct in the performance of his duty to Registrant, he
cannot be made whole even for expenses unless the court determines that he is
fairly and reasonably entitled to be indemnified for such expenses.
The officers and directors of the Company are covered by officers' and
directors' liability insurance. The policy coverage is $10,000,000 which
includes reimbursement for costs and fees. There is a maximum aggregate
deductible for each loss under the policy of $150,000. The Company has entered
into Indemnification Agreements with certain of its officers and directors. The
Agreements provide for reimbursement for all direct and indirect costs of any
type or nature whatsoever (including attorneys' fees and related disbursements)
actually and reasonably incurred in connection with either the investigation,
defense or appeal of a Proceeding, as defined, including amounts paid in
settlement by or on behalf of an indemnitee.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in Westbury, New York on the 24 th day of August, 1999.
NATHAN'S FAMOUS, INC.
By: /s/ Wayne Norbitz
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Wayne Norbitz
President and Chief Operating Officer
POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed on August 24, 1999 by the following
persons in the capacities indicated. Each person whose signature appears below
constitutes and appoints Wayne Norbitz and Ronald G. DeVos, and each of them
acting individually, with full power of substitution, our true and lawful
attorneys-in-fact and agents to do any and all acts and things in our name and
on our behalf in our capacities indicated below which they or either of them may
deem necessary or advisable to enable Nathan's Famous, Inc. to comply with the
Securities Act of 1933, as amended, and any rules, regulations and requirements
of the Securities and Exchange Commission, in connection with this Registration
Statement including specifically, but not limited to, power and authority to
sign for us or any of us in our names in the capacities stated below, any and
all amendments (including post-effective amendments) thereto, granting unto said
attorneys-in-fact and agents full power and authority to do and perform each and
every act and thing requisite and necessary to be done in such connection, as
fully to all intents and purposes as we might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents, or his
substitute or substitutes, may lawfully do or cause to be done by virtue
thereof.
Signature Title
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/s/ Howard M. Lorber Chairman of the Board and
Howard M. Lorber Chief Executive Officer
/s/ Wayne Norbitz President, Chief Operating Officer and
Wayne Norbitz Director (Principal Executive Officer)
/s/ Ronald G. DeVos Vice President - Finance
Ronald G. DeVos Chief Financial Officer and Secretary
(Principal Financial and Accounting Officer)
/s/ Robert J. Eide Director
Robert J. Eide
/s/ Barry Leistner Director
Barry Leistner
/s/ Jeffrey A. Lichtenberg Director
Jeffrey A. Lichtenberg
/s/ Attilio F. Petrocelli Director
Attilio F. Petrocelli
<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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NATHAN'S FAMOUS, INC.
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Form S-8 Registration Statement
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E X H I B I T I N D E X
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Page No. in Sequential
Exhibit Numbering of all Pages,
Number Exhibit Description including Exhibit Pages
- ------- ------------------- -----------------------
4 Common Stock Purchase Warrant . . . . . 4
5 Opinion and Consent of Counsel . . . . . 13
23.1 Consent of Counsel . . . . . . . . . . . See Exhibit 5
23.2 Consent of Arthur Andersen LLP . . . . . 15
24 Powers of Attorney . . . . . . . . . . . See signature pages
Exhibit 4
These securities may not be publicly offered or sold unless at the time of such
offer or sale, the person making such offer of sale delivers a prospectus
meeting the requirements of the Securities Act of 1933 forming a part of a
registration statement, or post-effective amendment thereto, which is effective
under said act, or unless in the opinion of counsel to the Corporation, such
offer and sale is exempt from the provisions of Section 5 of said Act.
W A R R A N T
- - - - - - -
For the Purchase of Common Stock, Par Value $.01 per Share of
NATHAN'S FAMOUS, INC.
(Incorporated under the Laws of the State of Delaware)
VOID AFTER 5 P.M. July 17, 2007
No. 1 Warrant to Purchase
150,000 Shares
THIS IS TO CERTIFY that, for value received, HOWARD M. LORBER is
entitled, subject to the terms and conditions set forth, at or before 5 P.M.,
New York City Time, on July 17, 2007, but not thereafter, to purchase the number
of shares set forth above of Common Stock, par value $.01 per share (the "Common
Stock"), of NATHAN'S FAMOUS, INC., a Delaware corporation (the "Corporation"),
from the Corporation at a purchase price per share of $3.25 if and to the extent
this Warrant is exercised, in whole or in part, during the period this Warrant
remains in force, subject in all cases to adjustment as provided in Section 3
hereof, and to receive a certificate or certificates representing the shares of
Common Stock so purchased, upon presentation and surrender to the Corporation of
this Warrant, with the form of subscription attached hereto duly executed, and
accompanied by payment of the purchase price of each share purchased either in
cash or by certified or bank cashier's check payable to the order of the
Corporation.
1. (a) The rights represented by this Warrant are exercisable at the
option of the holder hereof in whole at any time, or in part from time to time,
within the period above specified at the price specified on page 1 hereof,
provided that the Warrant shall be vested as follows: 37,500 on July 17, 1998,
37,500 on July 17, 1999, 37,500 on July 17, 2000 and 37,500 on July 17, 2001.
(b) Notwithstanding the foregoing, in the event there shall be a
change in the present control of the Company as hereinafter defined, or in any
person directly or indirectly presently controlling the Company, as hereinafter
defined, the Warrant shall become fully vested.
For purposes of this Agreement, a change in control of the Company, or
in any person directly or indirectly controlling the Company, shall mean:
<PAGE>
(i) a change in control as such term is presently defined in
Regulation 240.12b-2 under the Securities Exchange Act of 1934
("Exchange Act"); or
(ii) if any "person" (as such term is used in Section 13(d) and
14(d) of the Exchange Act) other than the Company or any "person" who
on the date of this Agreement is a director or officer of the Company,
becomes the "beneficial owner" (as defined in Rule 13(d)-3 under the
Exchange Act), directly or indirectly, of securities of the Company
representing twenty (20%) percent of the voting power of the Company's
then outstanding securities; or
(iii) if during any period of two (2) consecutive years during
the term of this Agreement, individuals who at the beginning of such
period constitute the Board of Directors cease for any reason to
constitute at least a majority thereof.
2. The Corporation covenants and agrees that all shares may be
delivered upon the exercise of this Warrant and will, upon delivery, be fully
paid and non-assessable, and, without limiting the generality of the foregoing,
the Corporation covenants and agrees that it will from time to time take all
such action as may be requisite to assure that the par value per share of the
Common Stock is at all times equal to or less than the then current Warrant
purchase price per share of the Common Stock issuable upon exercise of this
Warrant.
3. The rights represented by this Warrant are exercisable at the
option of the holder hereof in whole at any time, or in part from time to time,
within the period above specified at the prices specified in Section 1 hereof.
In case of the purchase of less than all the shares as to which this Warrant is
exercisable, the Corporation shall cancel this Warrant upon the surrender hereof
and shall execute and deliver a new Warrant of like tenor for the balance of the
shares purchasable hereunder.
4. The price per share at which shares of Common Stock may be
purchased hereunder, and the number of such shares to be purchased upon exercise
hereof, are subject to change or adjustment as follows:
(A) In case the Corporation shall, while this Warrant
remains unexercised, in whole or in part, and in force, effect a
recapitalization of such character that the shares of Common Stock
purchasable hereunder shall be changed into or become exchangeable
for a larger or smaller number of shares, then, after the date of
record for effecting such recapitalization, the number of shares of
Common Stock which the holder hereof shall be entitled to purchase
hereunder shall be increased or decreased, as the case may be, in
direct proportion to the increase or decrease in the number of shares
of Common Stock by reason of such recapitalization, and the purchase
price hereunder per share of such recapitalized Common Stock shall,
in the case of an increase in the number of such shares, be
proportionately reduced, and in the case of a decrease in the number
of such shares, shall be proportionately increased. For the purpose
of this subsection (A), a stock dividend, stock split-up or reverse
split shall be considered as a recapitalization and as an exchange
for a larger or smaller number of shares, as the case may be.
<PAGE>
(B) In the case of any consolidation of the
Corporation with, or merger of the Corporation into, any other
corporation, or in case of any sale or conveyance of all or
substantially all of the assets of the Corporation in connection with
a plan of complete liquidation of the Corporation, then, as a
condition of such consolidation, merger or sale or conveyance,
adequate provision shall be made whereby the holder hereof shall
thereafter have the right to purchase and receive, upon the basis and
upon the terms and conditions specified in this Warrant and in lieu
of shares of Common Stock immediately theretofore purchasable and
receivable upon the exercise of the rights represented hereby, such
shares of stock or securities as may be issued in connection with
such consolidation, merger or sale or conveyance with respect to or
in exchange for the number of outstanding shares of Common Stock
immediately therefore purchasable and receivable upon the exercise of
the rights represented hereby had such consolidation, merger or sale
or conveyance not taken place, and in any such case appropriate
provision shall be made with respect to the rights and interests of
the holder of this Warrant to the end that the provisions hereof
shall be applicable as nearly as may be in relation to any shares of
stock or securities thereafter deliverable upon the exercise hereof.
(C) In case the Corporation shall, while this Warrant
remains unexercised, in whole or in part, and in force, issue
(otherwise than by stock dividend or stock split-up or reverse split)
or sell shares of its Common Stock (hereinafter referred to as
"Additional Shares") for a consideration per share (before deduction
of expenses or commissions or underwriting discounts or allowances in
connection therewith) less than the purchase price hereunder per
share, then, after the date of such issuance or sale, the purchase
price hereunder per share shall be reduced to a price determined by
dividing (1) an amount equal to (a) the total number of shares of
Common Stock outstanding immediately prior to the time of such
issuance or sale multiplied by such purchase price hereunder per
share, plus (b) the consideration (before deduction of expenses or
commissions or underwriting discounts or allowances in connection
therewith), if any, received by the Corporation upon such issuance or
sale, by (2) the total number of shares of Common Stock outstanding
after the date of the issuance or sale of such Additional Shares, and
the number of shares of Common Stock which the holder hereof shall be
entitled to purchase hereunder at each such adjusted purchase price
per share, at the time such adjusted purchase price per shall be in
effect, shall be the number of whole shares of Common Stock obtained
by multiplying such purchase price hereunder per share before such
adjustment, by the number of shares of Common Stock purchasable upon
the exercise of this Warrant immediately before such adjustment, and
dividing the product so obtained by such adjusted purchase price per
share; provided, however, that no such adjustment of the purchase
price hereunder per share or the number of shares for which this
Warrant may be exercised shall be made upon the issuance or sale by
the Corporation of Additional Shares reserved for issuance upon
exercise of outstanding Stock Options.
(D) In case the Corporation shall, while this Warrant
remains unexercised in whole or in part, and in force, issue or grant
any rights to subscribe for or to purchase, or any option (other than
the employee stock options referred to in subsection (C) above) for
the purchase of (i) Common Stock or (ii) any indebtedness or shares
of stock convertible into or exchangeable for Common Stock
(indebtedness or shares of stock convertible into or exchangeable for
Common Stock being hereinafter referred to as "Convertible
Securities"), or issue or sell Convertible Securities and the price
per share for which Common Stock is issuable upon the exercise of
<PAGE>
such rights or options or upon conversion or exchange of such
Convertible Securities at the time such Convertible Securities first
become convertible or exchangeable (determined by dividing (1) in the
case of an issuance or grant of any such rights or options, the total
amount, if any, received or receivable by the Corporation as
consideration for the issuance or grant of such rights or options,
plus the minimum aggregate amount of additional consideration payable
to the Corporation upon exercise of such rights or options, plus, in
the case of such Convertible Securities, the minimum aggregate amount
of additional consideration, if any, payable to the Corporation upon
the conversion or exchange of such Convertible Securities at the time
such Convertible Securities first become convertible or exchangeable,
or (2) in the case of an issuance or sale of Convertible Securities
other than where the same or issuable upon the exercise of any such
rights or options, the total amount, if any, received or receivable
by the Corporation as consideration for the issuance or sale of such
Convertible Securities, plus the minimum aggregate amount of
additional consideration, if any, payable to the Corporation upon the
conversion or exchange of such Convertible Securities at the time
such Convertible Securities first become convertible or exchangeable,
by, in either such case, (3) the total maximum number of shares of
Common Stock issuable upon the exercise of such rights or options or
upon the conversion or exchange of such Convertible Securities at the
time such Convertible Securities first become convertible or
exchangeable) shall be less than the two purchase prices hereunder
per share, then the total maximum number of shares of Common Stock
issuable upon the exercise of such rights or options or upon
conversion or exchange of the total maximum amount of such
Convertible Securities at the time such Convertible Securities first
become convertible or exchangeable, shall (as of the date of the
issuance or grant of such rights or options or, in the case of the
issuance or sale of Convertible Securities other than where the same
are issuable upon the exercise of rights or options, as of the date
of such issuance or sale) be deemed to be outstanding and to have
been issued for said price per share; provided that (i) no further
adjustment of the purchase price shall be made upon the actual
issuance of such Common Stock upon the exercise of such rights or
options or upon the conversion or exchange of such Convertible
Securities or upon the actual issuance of Convertible Securities
where the same are issuable upon the exercise of such rights or
options, and (ii) rights or options issued or granted pro rata to
shareholders without consideration and Convertible Securities
issuable by way of dividend or other distribution to shareholders
shall be deemed to have been issued or granted at the close of
business on the date fixed for the determination of shareholders
entitled to such rights, options or Convertible Securities and shall
be deemed to have been issued without consideration; and (iii) if, in
any case, the total maximum number of shares of Common Stock issued
upon exercise of such rights or options or upon conversion or
exchange of such Convertible Securities is not, in fact, issued and
the right to exercise such right or option or to convert or exchange
such Convertible Securities shall have expired or terminated, then,
and in any such event, the purchase price, as adjusted, shall be
appropriately readjusted at the time of such expiration or
termination. In such case, each purchase price hereunder per share
which is greater than the price per share for which Common Stock is
issuable upon conversion or exchange of such rights or options or
upon conversion or exchange of such Convertible Securities at the
time such Convertible Securities first become convertible or
exchangeable, as determined above in this subsection (D), shall
thereupon be reduced to a price determined by dividing (1) an amount
equal to (a) the total number of shares of Common Stock outstanding
immediately prior to the time of the issuance or grant of such rights
or options or the issuance or sale of such Convertible Securities
multiplied by such purchase price hereunder per share, plus (b) the
total amount, if any, received or receivable by the Corporation as
consideration for such issuance or grant or such issuance or sale,
plus the additional amounts referred to and more fully set forth in
clauses (1) and (2) of the parenthetical material above in this
subsection (D), whichever clause and whichever additional amounts may
be applicable, by (2) the total number of shares of Common Stock
<PAGE>
outstanding after the date of such issuance or grant or such issuance
or sale, and the number of shares of Common Stock which the holder
hereof shall be entitled to purchase hereunder at such adjusted
purchase price per share, at the time such adjusted purchase price
per shall be in effect, shall be the number of whole shares of Common
Stock obtained by multiplying such purchase price hereunder, per
share, before such adjustment, by the number of shares of Common
Stock purchasable upon the exercise of this Warrant immediately
before such adjustment and dividing the product so obtained by such
adjusted purchase price per share.
(E) For the purpose of subsections (C) and (D) above,
in case the Corporation shall issue or sell Additional Shares, issue
or grant any rights to subscribe for or to purchase, or any options
for the purchase of (i) Common Stock or (ii) Convertible Securities,
or issue or sell Convertible Securities for a consideration part of
which shall be other than cash, the amount of the consideration
received by the Corporation therefor shall be deemed to be the cash
proceeds, if any, received by the Corporation plus the fair value of
the consideration other than cash as determined by the Board of
Directors of the Corporation in good faith, before deduction of
commissions, underwriting discounts or allowances or other expenses
paid or incurred by the Corporation for any underwriting of, or
otherwise in connection with, such issuance, grant or sale.
(F) Subject to the provisions of subsection (G)
below, in case the Corporation shall, while this Warrant remains
unexercised, in whole or in part, and in force, make any distribution
of its assets to holders of Common Stock as a partial liquidating
dividend, by way of return of capital or otherwise, then, after the
date of record for determining shareholders entitled to such
distribution, the holder hereof shall be entitled, upon exercise of
this Warrant and purchase of any or all of the shares of Common Stock
subject hereto, to receive the amount of such assets (or at the
option of the Corporation, a sum equal to the value thereof at the
time of such distribution to holders of Common Stock as such value is
determined by the Board of Directors of the Corporation in good
faith) which would have been payable to such holder had he been the
holder of record of such shares of Common Stock on the record date
for the determination of shareholders entitled to such distribution.
(G) Except as otherwise provided in subsection (B)
above, in the case of any sales or conveyance of all or substantially
all of the assets of the Corporation in connection with a plan of
complete liquidation of the Corporation, in the case of the
dissolution, liquidation or winding up of the Corporation, all rights
under this Warrant shall terminate on a date fixed by the
Corporation, such date so fixed to be not earlier than the date of
the commencement of the proceedings for such dissolution, liquidation
or winding-up and not later than thirty (30) days after such
commencement date. Notice of such termination of purchase rights
shall be given to the registered holder hereof, as the same shall
appear on the books of the Corporation, at least thirty (30) days
prior to such termination date.
<PAGE>
(H) In case the Corporation shall, while this Warrant
remains unexercised in whole or in part, and in force, offer to the
holders of Common Stock any rights to subscribe for additional shares
of stock of the Corporation, then the Corporation shall given written
notice thereof to the registered holder hereof not less than thirty
(30) days prior to the date on which the books of the Corporation are
closed or a record date fixed for the determination of shareholders
entitled to such subscription rights. Such notice shall specify the
date as to which the books shall be closed or the record date fixed
with respect to such offer or subscription, and the right of the
holder hereof to participate in such offer or subscription shall
terminate if this Warrant shall not be exercised on or before the
date of such closing of the books or such record date.
(I) Any adjustment pursuant to the foregoing
provisions shall be made on the basis of the number of shares of
Common Stock which the holder hereof would have been entitled to
acquire by exercise of this Warrant immediately prior to the event
giving rise to such adjustment and, as to the purchase price
hereunder per share, whether or not in effect immediately prior to
the time of such adjustment, on the basis of such purchase price
immediately prior to the event giving rise to such adjustment.
Whenever any such adjustment is required to be made, the Corporation
shall forthwith determine the new number of shares of Common Stock
which the holder shall be entitled to purchase hereunder and/or such
new purchase price per share, and shall prepare, retain on file and
transmit to the holder hereof within ten (10) days after such
preparation a statement describing in reasonable detail the method
used in calculating such adjustment(s).
(J) For the purposes of this Section 3, the term
"Common Stock" shall include all shares of capital stock authorized
by the Corporation's Certificate of Incorporation, as from time to
time amended, which are not limited to a fixed sum or percentage of
par value in respect of the right of the holders thereof to
participate in dividends or in the distribution of assets upon the
voluntary or involuntary liquidation, dissolution or winding-up of
the Corporation.
(K) Whenever the price per share hereunder, initial
or adjusted, and the number of shares of Common Stock to be purchased
upon exercise hereof, initial or adjusted, shall be changed or
adjusted pursuant to the provisions of this Section 3, the
Corporation shall forthwith cause written notice setting forth the
changed or adjusted price per share hereunder and number of shares to
be purchased upon exercise hereof to be given to the holder of this
Warrant.
<PAGE>
5. (A) The Corporation agrees that at any time the Corporation
contemplates filing under and in accordance with the Securities Act of
1933, as amended, (the "Act"), a new Registration Statement, it shall
notify the holder hereof in writing at least thirty (30) days prior to
the filing of such new Registration Statement of its intention to do
so, and in such case, the holder hereof shall have the right, upon
written notice delivered to the Corporation within twenty (20) days
after receipt of notice from the Corporation, to require that such
Warrants and the shares of Common Stock into which the Warrants are
exercisable be included in such new Registration Statement. In the
event that the holder hereof elects to so include such Warrants or
such shares of Common Stock, the Corporation shall pay all of the
expenses of preparation and filing of such new Registration Statement,
including legal, accounting, printing, blue sky and other fees and
expenses.
(B) The Corporation agrees to use its best efforts to cause any
new registration statement to become effective as promptly as
possible. the Corporation agrees to file such post-effective amendment
or amendments to any new registration statement or supplements to any
prospectus contained therein as may be required so that there will
continuously be available (for so long a period of time as such
prospectus may be used under the Act or otherwise as may be determined
by the Securities and Exchange Commission) a prospectus meeting the
requirements of the Act. The Corporation agrees to provide a
reasonable number of copies of any preliminary or final prospectus
forming a part of such new registration statement, and the Corporation
shall comply with the blue sky laws of such states as may be requested
by the holder of the warrants or shares of Common Stock issued upon
exercise hereof; provided, however, that the Corporation shall not be
obligated to file any general consent to service of process or to
qualify as a foreign corporation under the laws of any such state.
Such provision and such compliance shall be at the expense of the
Corporation. the Corporation agrees to indemnify the holder of the
Warrants and shares of Common Stock issued upon exercise hereof to the
usual extent in connection with liabilities and expenses arising out
of material misrepresentations or omissions in such post-effective
amendment or new registration statement against the indemnification of
the Corporation by the holder of the Warrants and shares of Common
Stock issued upon exercise hereof to the usual extent.
(C) If the holder elects to include the Warrants or shares of
Common Stock in the Registration Statement, the Corporation's
obligation to do so shall be subject to the following further
conditions:
(i) If the managing underwriter advises that either the
Warrants or shares of Common Stock otherwise to be included
in the offering by the timely election of the holder cannot
be included in whole or in part in such offering for
whatever reason, then, as the case may be, the Warrants or
shares of Common Stock shall not be included in the offering
or the amount thereof included in the offering shall be
reduced in accordance with the advice of the underwriters.
(ii) The Corporation may in its discretion withdraw any
Registration Statement filed without liability to the holder
hereof.
<PAGE>
(D) The holder hereof agrees that the Warrants and shares of
Common Stock will not be offered or sold (1) unless at the time of
such offer or sale, there is delivered a prospectus meeting the
requirements of the Act, as amended, forming a part of a new
Registration Statement with respect to such offer and sale, or (2)
unless in the opinion of counsel to the Corporation satisfactory to
the holder hereof, such offer and sale is exempt from the provisions
of Section 5 of the Act. In connection with the preparation of any new
Registration Statement, the holder hereof agrees to furnish the
Corporation with information, in writing, concerning the terms of the
proposed offer.
6. The Corporation agrees at all times to reserve or hold available a
sufficient number of shares of Common Stock to cover the number of shares
issuable upon the exercise of this and all other Warrants of the same class.
7. This Warrant shall not entitle the holder hereof to any voting
rights or other rights as a shareholder of the Corporation, or to any other
rights whatsoever except the rights herein expressed, and no dividends shall be
payable or accrue in respect of this Warrant or the interest represented hereby
or the shares purchasable hereunder until or unless, and except to the extent
that, this Warrant shall be exercised.
8. This Warrant is exchangeable upon the surrender hereof by the
holder hereof to the Corporation for new Warrants of like tenor representing in
the aggregate the right to purchase the number of shares purchasable hereunder,
each of such new Warrants to represent the right to purchase such number of
shares as shall be designated by the holder hereof at the time of such
surrender.
9. The Corporation will transmit to the holder of this Warrant such
information, documents and reports as are generally distributed to shareholders
of the Corporation concurrently with the distribution thereof to such
shareholders.
10. Notices to be given to the holder of this Warrant shall be deemed
to have been sufficiently given if delivered or mailed, addressed in the name
and at the address of such holder appearing in the records of the Corporation,
and if mailed, sent first class registered or certified mail, postage prepaid.
The address of the Corporation is 1400 Old Country Road, Westbury, New York
11590, and the Corporation shall give written notice of any change of address to
the holder hereof.
IN WITNESS WHEREOF, the Corporation has caused this Warrant to be
executed by the signature of its President and its seal affixed and attested by
its Secretary.
Dated: July 17, 1997
NATHAN'S FAMOUS, INC.
By: s/ Wayne Norbitz
--------------------------------------
WAYNE NORBITZ, President
[Corporate Seal]
ATTEST:
s/ Ronald DeVos
- --------------------------------------
Ronald DeVos, Secretary
<PAGE>
ASSIGNMENT
To Be Executed by the Holder
If He Desires To Assign The
Warrant In Its Entirety
FOR VALUE RECEIVED, ___________ hereby sells, assigns and transfers unto_______
____________________ __________________________________________________
(Please insert Social Security or other identifying
number of Assignee)
the right to purchase ________ shares of Common Stock of the within named
Company evidenced by the within Warrant, together will all right, title and
interest therein, and does hereby irrevocably constitute and appoint
________________________________________________________________________________
attorney to transfer the said Warrant on the books of said Company, with full
power of substitution in the premises.
Dated: _____________, 19__
----------------------------
(Signature)
NOTE: The signature to this Assignment must
correspond with the name as written upon the
face of this Warrant in every particular,
without alteration or enlargement or any
change whatever.
SIGNATURE GUARANTEED:
------------------------------
<PAGE>
SUBSCRIPTION FORM
-----------------
To Be Executed By The Holder
If He Desires To Exercise The
Warrant In Whole Or In Part
TO: NATHAN'S FAMOUS, INC.
The undersigned hereby irrevocably elects to exercise the right of purchase
represented by the within Warrant for, and to purchaser thereunder, ____________
shares of the stock provided for therein and tenders payment herewith to the
order of NATHAN'S FAMOUS, INC. in the amount of $ _____________ (such payment
being in cash or by certified or official bank or bank cashier's check) in
accordance with the terms of the within Warrant. The undersigned requests that
certificates for such shares be issued in the name of
- ------------------------------ ----------------------------------------------
(Name) (Social Security or other identifying number of
Subscriber)
- ------------------------------
(Address)
and to be delivered to _________________________________________________________
(Name)
________________________________________________________________________________
(Address)
and, if said number of shares shall not be all the shares purchasable hereunder,
that a new Warrant for the balance remaining of the shares purchasable under the
within Warrant be registered in the name of, and delivered to, the undersigned
at the address stated below.
________________________________________________________________________________
(Address)
Dated: _________ 19__
-----------------------------------------------
(Signature)
NOTE: The signature to this Subscription must correspond with the
name as written upon the face of this Warrant in every
particular, without alteration or enlargement or any change
whatever.
Exhibit 5
August 25, 1999
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: Nathan's Famous, Inc.
Registration Statement on Form S-8
----------------------------------
Gentlemen:
Reference is made to the filing by Nathan's Famous, Inc. (the
"Corporation") of a Registration Statement on Form S-8 with the Securities and
Exchange Commission pursuant to the provisions of the Securities Act of 1933, as
amended, covering the registration of 150,000 shares of the Corporation's Common
Stock, $.01 par value per share, in connection with a common stock purchase
warrant issued to the chief executive officer of the Corporation.
As counsel for the Corporation, we have examined its corporate
records, including its Certificate of Incorporation, as amended, By-Laws, its
corporate minutes, the form of its Common Stock certificate, the warrant and
such other documents as we have deemed necessary or relevant under the
circumstances.
Based upon our examination, we are of the opinion that:
1. The Corporation is duly organized and validly existing under the laws
of the State of Delaware.
2. There have been reserved for issuance by the Board of Directors of the
Corporation 150,000 shares of its Common Stock, $.01 par value per share. The
shares of the Corporation's Common Stock, when issued upon exercise of the
warrant pursuant to its terms, will be validly authorized, legally issued, fully
paid and non-assessable.
We hereby consent to be named in the Registration Statement and in
the Prospectus which constitutes a part thereof as counsel of the Corporation,
and we hereby consent to the filing of this opinion as Exhibit 5 to the
Registration Statement.
Very truly yours,
/s/ Blau, Kramer, Wactlar & Lieberman, P.C.
BLAU, KRAMER, WACTLAR &
LIEBERMAN, P.C.
ARTHUR ANDERSEN LLP
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
-----------------------------------------
As independent public accountants, we hereby consent to the incorporation by
reference in this Form S-8 registration statement of our report dated June 15,
1999 included in the Nathan's Famous, Inc. and Subsidiaries Form 10-K for the
year ended March 28, 1999 and to all references to our Firm included in this
Form S-8 registration statement.
/s/ Arthur Andersen LLP
Roseland, New Jersey
August 27, 1999
