Exhibit 1
PURCHASE AGREEMENT
PURCHASE AGREEMENT dated as of April 8, 2002 by and between XXXXXXX
XXXXXX, an individual (the "Stockholder") and NATHAN'S FAMOUS, INC., a Delaware
corporation (the "Company").
W I T N E S S E T H:
WHEREAS, the Stockholder has agreed to sell all of the shares of common
stock in the Company owned by him and the Company has agreed to purchase such
shares upon the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the covenants, warranties and
mutual agreements herein set forth, and in reliance upon the representations and
warranties contained herein, the parties do hereby agree as follows:
1. TRANSFER OF STOCK.
The Stockholder hereby agrees to sell, assign, transfer and
deliver to the Company and the Company shall purchase from the Stockholder
751,000 shares of issued and outstanding common stock of the Company, par value
$.01 per share held by such Stockholder (the "Shares").
2. PURCHASE PRICE AND PAYMENT.
In consideration of the sale of the stock to the Company and
subject to the terms and conditions hereinafter set forth, the Company shall pay
to the Stockholder the sum of $3.65 per share, or an aggregate $2,741,150 (the
"Purchase Price").
3. REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDER.
The Stockholder represents and warrants to, and agrees with,
the Company that:
3.1 STATUS. The Stockholder has legal capacity to execute,
deliver and perform his obligations under this Agreement.
3.2 AUTHORITY. The Stockholder has, upon delivery of the
payment for each of the Shares, full right, power and authority, and has
obtained any approval required by law, to sell, transfer, assign and deliver the
Shares being sold by him hereunder.
3.3 VALID AND MARKETABLE TITLE. The Stockholder has valid and
marketable title to the Shares, free and clear of any lien, claim, security
interest or other encumbrance, including, without limitation, any restriction on
transfer, and has full right, power and authority to enter into this Agreement,
and the Company will acquire valid and marketable title to the Shares from the
Stockholder free and clear of any liens, encumbrances, equities, claims,
restrictions on transfer or other defects whatsoever.
3.4 BINDING OBLIGATIONS. This Agreement has been duly executed
by the Stockholder and constitutes the legal, valid and binding obligation of
the Stockholder, enforceable against the Stockholder in accordance with its
terms, except as the same may be limited by bankruptcy, insolvency,
reorganization or other laws affecting the enforcement of creditors' rights
generally now or hereafter in effect and subject to the application of equitable
principles and the availability of equitable remedies.
3.5 COMPLIANCE WITH OTHER INSTRUMENTS. The performance of this
Agreement, and the consummation of the transactions contemplated hereby, will
not result in a breach or violation of any material respect by the Stockholder
of any of the terms or provisions of, or constitute a default by the Stockholder
under, (i) any indenture, mortgage, deed of trust, trust (constructive or
other), loan agreement, lease, franchise, license or other material agreement or
instrument to which the Stockholder is a party or by which the Stockholder is or
the Shares are bound, or (ii) any judgment of any court or governmental agency
or body applicable to the Stockholder or the Shares or any statute, decree,
order, rule or regulation of any court or governmental agency or body applicable
to the Stockholder or the Shares.
3.6 INVESTOR STATUS. The Stockholder acknowledges that the
Company's fiscal year ended on March 31, 2002 and that its annual report on Form
10-K is not required to be filed until June 29, 2002. Accordingly, the
Stockholder acknowledges that he has not had access to any information
concerning the financial results of the Company for the quarter and fiscal year
ended March 31, 2002. The Stockholder further acknowledges that the report of
such results could affect the market price of the Company's common stock. The
Stockholder is a sophisticated investor who has evaluated the merits of selling
the Shares, and has such knowledge and experience in financial and business
matters that the Stockholder is capable of evaluating the merits and risks of
such sale.
4. RELEASE AND COVENANTS OF STOCKHOLDER.
4.1 RELEASE. The Stockholder hereby fully, finally, and
unconditionally releases and discharges the Company and its owners, directors,
officers, agents, attorneys, employees, fiduciaries, parents, subsidiaries,
divisions, partners, joint ventures, affiliated business entities, predecessors,
successors, heirs, and assigns, jointly and severally (collectively referred to
as the "Released Parties"), from any and all claims, actions, suits, accounts,
reckonings, covenants, contracts, agreements, promises, variances, trespasses,
judgments, extents, executions, demands, debts, rights, controversies,
liabilities, damages or causes of action
2
whatsoever, known or unknown, in law, admiralty or equity, whether asserted or
not asserted, which Stockholder now has, has ever had, or may at any time
hereafter have against the Released Parties by reason of any matter, cause or
event whatsoever occurring prior to the date hereof, including but not limited
to the Stockholder's sale of the Shares to the Company pursuant to this
Agreement and any claim under Section 10 of the Securities Exchange Act of 1934,
as amended, and the rules and regulations thereunder.
4.2 COVENANT NOT TO XXX. The Stockholder agrees that neither
he nor any other person, organization or entity acting on his behalf, will xxx
or file or institute any charges, complaints, grievances, or arbitrations
against the Released Parties, in any capacity, before any court, agency or other
governmental entity, with respect to any matters released hereby and
acknowledges that this provision shall bar any such action.
4.3 TAXES. The Stockholder shall pay any federal, state or
local sales, transfer or stamp taxes payable in connection with the sale and
transfer of the Shares pursuant to this Agreement.
5. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company hereby
represents and warrants to, and agrees with, the Stockholder as follows:
5.1 CORPORATE ORGANIZATION: REQUISITE AUTHORITY TO CONDUCT
BUSINESS. The Company is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware.
5.2 DUE AUTHORIZATION. The Company has the power and authority
to execute and deliver this Agreement and to carry out its obligations
hereunder. The execution, delivery and performance by the Company of this
Agreement and the consummation of the transactions contemplated hereby have been
duly authorized by all necessary corporate action on the part of the Company.
5.2 BINDING OBLIGATION. This Agreement has been duly executed
and delivered by the Company and constitutes its legal, valid and binding
obligations enforceable against it in accordance with its terms, subject to
applicable bankruptcy, insolvency, reorganization and moratorium laws and other
laws of general application affecting the enforcement of creditors' rights
generally, and the fact that equitable remedies or relief (including, but not
limited to, the remedy of specific performance) are subject to the discretion of
the court from which such relief may be sought.
6. CLOSING.
6.1 CLOSING. The consummation of the purchase and sale of the
Shares contemplated hereby shall occur at a "Closing" to be held simultaneously
with the execution of this Agreement in the offices of Blau, Kramer, Wactlar &
Xxxxxxxxx, P.C. in Jericho, New York,
3
or at such other time or place as the Company and the Stockholder may agree
(such date referred to herein as the "Closing Date").
6.2 DELIVERIES AT CLOSING.
(a) The Company shall have received certificates for the
Shares, together with executed stock powers with respect thereto, signature
guaranteed or by book-entry transfer.
(b) The Stockholder shall receive the Purchase Price by
certified check or by wire transfer of such funds to the account of the
Stockholder at Xxxxxxxxx & Company, Inc.
7. MISCELLANEOUS.
7.1 CONSENT TO JURISDICTION AND WAIVERS. The Company and the
Stockholder each irrevocably consent that any legal action or proceeding against
any of them under, arising out of or in any manner relating to, this Agreement
or any other document delivered in connection herewith, must be brought only in
a federal or state court situated in the State of New York, Nassau County or New
York County. The Company and the Stockholder, by the execution and delivery of
this Agreement, expressly and irrevocably consent and submit to the personal
jurisdiction of any of such courts in any such action or proceeding. The Company
and the Stockholder further irrevocably consent to the service of any complaint,
summons, notice or other process relating to any such action or proceeding by
delivery thereof to it by hand or by any other manner provided for in Section
7.3. The Company and the Stockholder hereby expressly and irrevocably waive any
claim or defense in any such action or proceeding based on any alleged lack of
personal jurisdiction, improper venue or forum non conveniens or any similar
basis. Nothing in this Section shall affect or impair in any manner or to any
extent the right of the Company to commence legal proceedings or otherwise
proceed against the Stockholder in any jurisdiction or to serve process in any
manner permitted by law.
7.2. SEVERABILITY. If any provision of this Agreement shall be
held or deemed to be or shall, in fact, be inoperative or unenforceable as
applied in any particular case because it conflicts with any other provision or
provisions hereof or any constitution or statute or rule of public policy, or
for any other reason, such circumstances shall not have the effect of rendering
the provision in question inoperative or unenforceable in any other case or
circumstance, or of rendering any other provision or provisions herein contained
invalid, inoperative, or unenforceable to any extent whatever. The invalidity of
any one or more phrases, sentences, clauses, sections, or subsections of this
Agreement shall not affect the remaining portions of this Agreement.
7.3. NOTICES. All notices, consents, requests, instructions,
approvals and other communications provided for herein and all legal process in
regard hereto shall be validly given, made or served, if in writing and
delivered personally or sent by registered or certified mail
4
(return receipt requested), postage prepaid, recognized national or
international air courier or by facsimile transmission electronically confirmed:
If to the Company:
Nathan's Famous, Inc.
0000 Xxx Xxxxxxx Xxxx
Xxxxxxxx, XX 00000
with a copy to:
Xxxxx X. Xxxxxxxxx, Esq.
Blau, Kramer, Wactlar & Xxxxxxxxx, P.C.
000 Xxxxxxx Xxxxxxxxxx
Xxxxxxx, Xxx Xxxx ll753
Fax: (000) 000-0000
If to the Stockholder:
Xxxxxxx Xxxxxx
P. O. Xxx 000
Xxxxxx, Xxx Xxxxxx 00000
with a copy to:
Xxxx Xxxxxx, Esq.
Brown, Raysman, Xxxxxxxxx, Xxxxxx & Xxxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
or, in each case, at such other address as may be specified in writing to the
other parties.
7.4. WAIVER. Any party may waive compliance by another with
any of the provisions of this agreement. No waiver of any provisions shall be
construed as a waiver of any other provision or a future waiver of any other
provision hereof. Any waiver must be in writing.
7.5. GENERAL CONSTRUCTION PRINCIPLES. The headings contained
in this Agreement are for reference purposes only and shall not affect in any
way the meaning or interpretation of this Agreement. The use of the masculine
form of any word includes the feminine version and vice versa and the singular
form of any word includes the plural and vice versa. This Agreement constitutes
the entire agreement and supersedes all prior agreements and understandings,
both written and oral, among the parties with respect to the subject matter
5
hereof. This Agreement may not be amended except by an instrument in writing
duly executed and delivered on behalf of each of the parties hereto. This
Agreement 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
Agreement shall be governed in all respects, including validity, interpretation
and effect, by the laws of the State of New York. This Agreement shall be
binding upon and inure to the benefit of the successors and assigns of the
parties hereto. The rights and obligations contained in this Agreement are
solely for the benefit of the parties hereto and are not intended to benefit or
be enforceable by any other party, under the third party beneficiary doctrine or
otherwise.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the date first above written.
NATHAN'S FAMOUS, INC.
By: /s/ XXXXX XXXXXXX
-----------------------------
Xxxxx Xxxxxxx
Its: President
/s/ XXXXXXX XXXXXX
---------------------------------
XXXXXXX XXXXXX
6
