AMENDMENT. No. 1 TO EMPLOYMENT AGREEMENT
This amendment to employment agreement is made this 28th day of March, 2005
by and between MIAMI SUBS CORPORATION, a Florida corporation, with its principal
place of business at 0000 Xxxxxxxxx 00xx Xxxxxx, Xxxx Xxxxxxxxxx, Xxxxxxx 00000
(the "Company"), and Xxxxxx X. Xxxxxx, residing at 0000 X.X. 00xx Xxxxxxx, Xxxx
Xxxxx, Xx. 00000 (the "Executive").
W I T N E S S E T H
WHEREAS, the Company and the Employee are parties to an Employment
Agreement dated as of January 15, 1999 (the "Employment Agreement");
WHEREAS, Nathan's Famous, Inc., a Delaware corporation ("Parent"), the
owner of the Company, is a signatory to the Employment Agreement; and
WHEREAS, the Company, Parent and the Employee desire to amend the
Employment Agreement in accordance with the terms hereof.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto do hereby agree
as follows:
1. Section 9(b)(i) of the Employment Agreement is hereby amended and
restated to read as follows:
"(i) participating, directly or indirectly, as an individual
proprietor, partner, stockholder, officer, employee, director,
joint venturer, investor, lender, consultant or in any capacity
whatsoever (A) in the State of Florida or New York, in a business
in competition with the quick-service restaurant business or (B)
in the United States, in a business in competition with the
business of selling food products to the foodservice industry, in
each case as conducted by the Company, its affiliated entities or
its licensees during the Employment Term; provided, however, that
such prohibited participation shall not include: (x) the mere
ownership of not more than one percent (1%) of the total
outstanding stock of a publicly held company; (y) the performance
of services for any enterprise to the extent such services are
not performed, directly or indirectly, for a business in the
aforesaid Competition; or (z) any activity engaged in with the
prior written approval of the Board."
2. Section 13 of the Employment Agreement is hereby amended and restated to
read as follows:
"1. Change of Control.
Upon a "Change of Control" (as defined below) of the Parent, the
Company shall pay Executive, within thirty (30) days of such
event, a lump sum equal to three (3) times the amount of his Base
Salary in effect at the time of such event, together with a pro
rata portion of the bonus accrued through the date of such Change
of Control. As used herein "Change of Control" means (a) 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 (b) if any "person" (as such term is used in Section
13(d) and 14(d) of the Exchange Act) (other than any "person" who
on the date of this Agreement is a director or officer of the
Parent), becomes the "beneficial owner" (as defined in Rule
13(d)-3 under the Exchange Act), directly or indirectly, of
securities of the Parent representing twenty (20%) percent of the
voting power of the Parent's then outstanding securities; or (c)
if during any period of two (2) consecutive years during the term
of Executive's employment, individuals who at the beginning of
such period constitute the Board of Directors of the Parent cease
for any reason to constitute at least a majority thereof."
3. Except as specifically amended by this Amendment, the Employment
Agreement shall remain in full force and effect in all respects as originally
executed.
4. This Amendment may be executed in several counterparts, each of which
shall be deemed an original and all of which shall constitute one and the same
instrument. This Amendment shall be governed in all respects, including
validity, interpretation and effect, by the laws of the State of New York,
applicable to contracts made and to be performed entirely in New York.
IN WITNESS WHEREOF, the Company and Parent have each caused this Amendment
to be duly executed by an authorized officer and Executive has hereunto set his
hand as of the date first set forth above.
MIAMI SUBS CORPORATION
By: /s/Xxxxx Xxxx
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Name: Xxxxx Xxxx
Title: Vice President
/s/Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
NATHAN'S FAMOUS, INC.
By: /s/Xxxxx Xxxxxxx
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Name: Xxxxx Xxxxxxx
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Title: Presidnet
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