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Exhibit 4
NATHAN'S FAMOUS, INC.
NON-QUALIFIED
STOCK OPTION AGREEMENT -
MIAMI SUBS CORPORATION OPTIONS
THIS AGREEMENT made as of the 1st day of October, 1999, by and
between NATHAN'S FAMOUS, INC., a Delaware corporation ("Corporation"),
_________________ ("Optionee").
R E C I T A L S
WHEREAS, the Corporation and Miami Subs Corporation entered
into a Merger Agreement dated as of January 15, 1999, as amended, pursuant to
which the Miami Subs has become a wholly-owned subsidiary of the Corporation;
and
WHEREAS, the Optionee was a holder of outstanding options to
purchase shares of Miami Subs common stock; and
WHEREAS, pursuant to the terms of the merger agreement the
Corporation has assumed the outstanding Miami Subs options and such options were
converted into options to purchase shares of the Corporation's common stock,
$.01 par value;
WHEREAS, this Agreement evidences the grant by the Corporation
of such assumed option upon the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and the
mutual covenants hereinafter set forth, the parties hereto agree as follows:
1. Number of Shares and Price. The Corporation hereby grants
to the Optionee an option ("Option") to purchase ________ shares of Common
Stock. The option exercise price ("Option Price") is $_____ per share.
2. Term and Exercise. The Option shall be exercisable in whole
or in part until ________ for all of the shares covered hereby. The Option shall
not be exercised in part for less than 100 shares of Common Stock (unless there
are fewer than 100 shares remaining to be exercised).
[Notwithstanding the forgoing, if Optionee ceases to have a
relationship with the Corporation as an employee, director, officer or
consultant, and such relationships terminate for any reason other than death,
disability, or retirement, the term of this Option shall end and the
exercisability of the Option shall cease thirty (30) days following the
termination of the last remaining of such relationships.]
Upon the disability, retirement or death of the Optionee, he
or his executors, administrators or the person or persons to whom the Option has
been transferred by will or by the laws of descent and distribution, as the case
may be, shall have twelve (12) months from the date of disability, retirement or
death to exercise that Option.
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3. Payment. In exercising all or part of the Option, the
Optionee shall notify the Corporation in writing, of (a) the number of shares
being purchased, (b) the total Option Price for the shares being purchased, (c)
the exact name as it should appear on the stock certificate to be issued for the
shares being purchased, and (d) the address to which the stock certificate
should be sent. The shares being purchased may be paid for in whole or in part
in (a) cash or (b) whole shares of Common Stock evidenced by negotiable
certificates, at the Fair Market Value thereof on the date of exercise.
Certificates for the purchased shares will be issued and delivered to the
Optionee as soon as practicable after the receipt of such payment; provided that
delivery of any such shares shall be deemed effected for all purposes when the
stock transfer agent of the Corporation shall have deposited such certificates
in the United States mail, addressed to Optionee, at the address specified
pursuant to this Section 3.
4. Executors and Administrators. Whenever the word "Optionee"
is used in any provisions of this Agreement under circumstances where the
provision should logically be construed to apply to the executors,
administrators, or the person or persons to whom the Option may be transferred
by will or by the laws of descent and distribution, the word "Optionee" shall be
deemed to include such person or persons.
5. Transferability. The Option granted hereunder is not
transferable by Optionee, in whole or in part, otherwise than by will or by the
laws of descent and distribution and is exercisable during Optionee's lifetime
only by him. No assignment or transfer of the Option granted hereunder, or of
the rights represented thereby, whether voluntary or involuntary, by operation
of law or otherwise (except by will or the laws of descent and distribution),
shall vest in the assignee or transferee any interest or right therein
whatsoever, but immediately upon any such assignment or transfer the Option
shall terminate and become of no further effect
6. Shareholder Status. Optionee shall not be deemed for any
purpose to be a shareholder of the Corporation in respect of any shares as to
which the Option granted hereunder has not yet been exercised. With respect to
any shares which have been exercised under the Option, Optionee shall be deemed
to be a shareholder when such shares have been issued to Optionee by the
Corporation.
7. Reorganizations. The existence of the Option granted
hereunder shall not affect in any way the right or the power of the Corporation
or its stockholders to make or authorize any or all adjustments,
recapitalizations, reorganizations or other changes in the Corporation's capital
structure or its business, or any merger or consolidation of the Corporation, or
any issue of bonds, debentures, preferred or prior preference stocks ahead of or
affecting the Common Stock or the rights thereof, or the dissolution or
liquidation of the Corporation, or any sale or transfer of all or any part of
its assets or business, or any other corporate act or proceeding, whether of a
similar character or otherwise.
8. No Exercise in Violation of Law. Notwithstanding any of the
provisions hereof. Optionee hereby agrees that he will not exercise the Option
granted hereby, and that the Corporation will not be obligated to issue any
shares to the Optionee hereunder, if the exercise thereof or the issuance of
such shares shall constitute a violation by the Optionee or the Corporation of
any provision of any law or regulation of any governmental authority. Any
determination in this connection by the Board of Directors of the Corporation
shall be final, binding and conclusive.
9. Adjustment Upon Change in Common Stock Should the
Corporation effect one or more Common Stock dividends, stock splits,
subdivisions, or consolidations of shares or other similar changes in
capitalization then the terms of the Option may be adjusted as the Corporation's
Board of Directors in its discretion shall determine to be equitably required.
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The issuance by the Corporation of shares of Common Stock of
any class or securities convertible into shares of Common Stock of any class,
for cash or property or for labor or services, either upon direct sale or upon
the exercise of rights or warrants to subscribe therefor, or upon conversion of
shares or obligations of the Corporation convertible into such shares or other
securities, shall not affect, and no adjustment by reason thereof shall be made
with respect to the Option.
10. Effect on Employment. This Agreement shall not confer upon
any employee any right to continue in the employ of the Corporation, or in any
way affect any right and power of the Corporation to terminate the employment of
any employee at any time with or without assigning a reason therefor.
11. Tax Withholding.
(a) Generally. The Optionee may be required to
pay to the Corporation the amount of any such taxes which the Corporation is
required to withhold with respect to Common Stock received upon exercise of the
Option. At the request of Optionee, or as required by law, such sums as may be
required for the payment of any estimated or accrued income tax liability may be
withheld and paid over to the governmental entity entitled to receive the same.
(b) Cashless Withholding. Optionee may elect
(an "Election") to have the Corporation withhold from the shares of Common Stock
to be issued pursuant to the exercise of an Option or to surrender to the
Corporation shares already owned by the Optionee (which may be shares of Common
Stock previously received upon an exercise of an Option) which shall be
sufficient in value to satisfy applicable tax withholding obligations, or such
other withholding arrangements requested by Optionee or as otherwise required as
specified above. For purposes of such withholding or surrender, the shares
withheld or surrendered shall be valued at their Fair Market Value on the date
as of which the Participant first becomes subject to taxation for federal income
tax purposes in respect of shares of Common Stock received upon exercise of the
Option (the "Tax Date"). If the Fair Market Value on the Tax Date of the number
of whole shares of Common Stock withheld or surrendered pursuant to an Election
exceeds the withholding or other applicable tax obligations, a fractional share
shall be paid to the Participant by the Corporation in cash as soon as
reasonably practicable after the amount of such excess is determined by the
Corporation. An Election may be made by Optionee with respect to all or part of
a particular Option, to all or a specified class of previously granted Options,
and/or to all or a specified class of Options which may be granted in the
future.
An Election by Optionee shall be made prior to the applicable
Tax Date and also shall meet each of the following additional requirements:
(iv) The Election, once made, shall be irrevocable;
(ii) The Election must be made either (1) during one
of the ten business day periods beginning on the third business day following
the date of release of the Corporation's quarterly or annual summary statements
of sales and earnings and ending on the 12th business day following such date;
or (2) at least six months prior to the Tax Date for the Award to which the
Election applies;
(iii) No Election may be made with respect to any
Award during the first six months after the grant of the Award, or with respect
to any Option which has been exercised during the first six months after its
date of grant and, if any Option with respect to which an Election is already in
effect shall be exercised during the first six months after the date of grant,
such Election shall, to the extent of such exercise or issuance of Shares of
Common Stock, be deemed void, except that such
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limitations shall not apply if Optionee dies or is disabled prior to the
expiration of such six-month period; and
(iv) The Board shall have sole discretion to consent
to or disapprove any Election made by Optionee, and if the Board disapproves
such an Election, shares shall not be issued to the Optionee upon the exercise
of an Option to which the disapproved Election applies until the Optionee shall
have complied with the first sentence of this Section for satisfying tax
withholding obligations.
Optionee may not make an Election with respect to shares of
Common Stock issued pursuant to this Agreement if Optionee has previously filed
an election under Section 83(b) of the Code in connection with this Option or in
connection with the receipt of shares underlying this Option. The Election shall
specify whether Optionee elects to have the withholding obligations met by
withholding from the shares to be issued upon the exercise of Options or by
surrender to the Corporation by Optionee of already owned shares of Common
Stock. If the withholding obligations will be satisfied by the surrender to the
Corporation or already owned shares of Common Stock, the Election shall be
accompanied by certificates, with accompanying stock powers signed in blank, for
a sufficient number of shares of Common Stock.
12. Corporation Successors. In the event the Corporation
becomes a party to a merger, consolidation, sale of substantially all of its
assets, or any other corporate reorganization in which the Corporation will not
be the surviving corporation or in which the holders of the Common Stock will
receive securities or another corporation (in any such case, the "New
Corporation"), then the New Corporation shall assume the rights and obligations
of the Corporation under the Agreement.
13. Governing Law. All matters relating to this Agreement
shall be governed by the laws of the state of Delaware, without regard to the
principles of conflict of laws.
14. Employee Benefit Plans. No amounts of income received by
an Optionee pursuant to this Agreement shall be considered compensation for the
purposes of any pension or retirement plan, insurance plan or any other employee
benefit plan of the Corporation or its subsidiaries.
15. Notices. All notices or communications by the Corporation
to Optionee shall be delivered to the Optionee personally or be mailed to him at
his address as appears in the records of the Corporation. All notices by the
Optionee to the Corporation shall be delivered to the Secretary of the
Corporation personally, or mailed to him at 0000 Xxx Xxxxxxx Xxxx, Xxxxxxxx, Xxx
Xxxx 00000. Either party may change the address for the delivery of notices by
notifying the other party as provided herein.
16. Definitions.
"Board" means the Board of Directors of the Corporation.
"Code" means the Internal Revenue Code of 1986 and any
amendments thereto.
"Common Stock" means the $.01 par value per share Common Stock
of the Corporation.
"Corporation" means Nathan's Famous, Inc., a Delaware
corporation.
"Disability" means a physical or mental condition which
prevents the Participant from engaging in any substantially gainful activity.
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"Fair Market Value" means, on any given date the closing
price, on the Nasdaq Stock Market or other exchange on which the Common Stock is
trade.
"Retirement" means achieving the normal age of retirement as
set by the Corporation policy.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the day and year first above written.
NATHAN'S FAMOUS, INC.
By:__________________________
Xxxxxx XxXxx, Vice President
OPTIONEE:
By:______________________________
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