Securities Registration: Employee Benefit Plan (s-8)
30 Julho 2020 - 7:37PM
Edgar (US Regulatory)
As filed with the Securities and Exchange
Commission on July 30, 2020
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
_______________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
_____________
NATHAN'S FAMOUS, INC.
(Exact name of registrant as specified in
its charter)
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Delaware
(State or Other Jurisdiction
of Incorporation or Organization)
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11-3166443
(I.R.S. Employer Identification
Number)
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One Jericho Plaza
Jericho, NY 11753
(Address of Principal Executive Offices,
Zip Code)
_______________
Nathan's
Famous, Inc. 2019 Stock Incentive Plan
(Full Title of the Plan)
_______________
Eric Gatoff
Nathan's Famous, Inc.
Chief Executive Officer
One Jericho Plaza
Jericho, NY 11753
(Name and Address of Agent for Service)
(516) 338-8500
(Telephone Number, Including Area Code,
of Agent for Service)
Copy to:
Wayne A. Wald, Esq.
Palash I. Pandya, Esq.
Akerman LLP
520 Madison Avenue, 20th Floor
New York, New York 10022
(212) 880-3800
Indicate by check mark whether the registrant
is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company or an emerging growth
company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting
company” and "emerging growth company" in Rule 12b-2 of the Exchange Act.
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Large accelerated filer ¨
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Accelerated filer x
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Non-accelerated filer ¨
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Smaller reporting company x
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Emerging growth company ¨
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If an emerging growth company, indicate
by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial
accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ¨
CALCULATION OF REGISTRATION FEE
Title of Each Class of
Securities to be Registered
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Amount
to be Registered (1)
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Proposed Maximum
Offering Price Per Share
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Proposed Maximum
Aggregate Offering Price
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Amount of
Registration Fee
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Common Stock (par value $0.01 per share) to be issued under the Nathan's Famous, Inc. 2019 Stock Incentive Plan
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369,584
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$
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53.05
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(2)
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$
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19,606,432
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(2)
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$
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2,545
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(1)
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Pursuant to Rule 416(a) of the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement
shall also cover any additional shares of the Registrant’s Common Stock, par value $0.01 per share (the "Common Stock"),
that become issuable under the Nathan's Famous, Inc 2019 Stock Incentive Plan by reason
of any stock dividend, stock split, recapitalization or other similar transaction effected without receipt of consideration that
increases the number of the Registrant’s outstanding shares of Common Stock.
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(2)
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Estimated in accordance with Rule 457(c) and (h) under the Securities Act solely for the purpose of calculating the registration
fee on the basis of $53.05, the average of the high and low prices of the Registrant’s Common Stock as reported on the NASDAQ
Global Market on July 28, 2020.
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NATHAN'S FAMOUS, INC.
REGISTRATION STATEMENT ON FORM S-8
PART I
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Item 1.
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Plan Information.*
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Item 2.
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Registration Information and Employee Plan Annual Information.*
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*The documents containing
the information required by Part I of Form S-8 will be sent or delivered to the participants as specified by Rule 428(b)(1) under
the Securities Act of 1933, as amended (the “Securities Act”). In accordance with the rules and regulations of the
Securities and Exchange Commission (the "SEC") and the instructions to Form S-8, such documents are not being filed as
part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424 under the Securities Act.
These documents and the documents incorporated by reference in this Registration Statement pursuant to Item 3 of Part II of this
Registration Statement, constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act.
Upon written or oral
request, any of the documents incorporated by reference in Item 3 of Part II of this Registration Statement (which documents are
incorporated by reference in this Section 10(a) Prospectus), other documents required to be delivered to eligible employees pursuant
to Rule 428(b) or additional information about the Nathan's Famous, Inc. 2019 Stock Incentive
Plan are available without charge by contacting:
Nathan's
Famous, Inc.
One Jericho Plaza
Jericho, NY 11753
Attn: Investor Relations
Tel: (516) 338-8500
PART II
INFORMATION REQUIRED IN THE REGISTRATION
STATEMENT
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Item 3.
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Incorporation by Reference.
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Nathan's Famous, Inc. (the “Company” or the "Registrant")
is subject to the informational requirements of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)
and, in accordance therewith, files reports and other information with the SEC. The following documents are incorporated herein
by reference:
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(a)
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The Company’s Annual Report on Form 10-K for the fiscal year ended March 29, 2020, filed with the SEC on June 12, 2020.
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(c)
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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 amendments or reports filed for the purpose of
updating that description..
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In addition, all documents
filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act (other than portions of such documents
deemed not to be filed) on or after the date of this Registration Statement and prior to the filing of a post-effective amendment
to this Registration Statement which indicates that all securities offered have been sold or which deregisters all securities then
remaining unsold shall be deemed to be incorporated by reference in this Registration Statement and to be part hereof from the
respective dates of filings of such documents.
Any statement contained
in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes
of this Registration Statement to the extent that a statement contained herein or in any other subsequently filed document which
also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any statement so modified or
superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement. Nothing
in this Registration Statement shall be deemed to incorporate information furnished but not filed with the SEC pursuant to Item
2.02 or Item 7.01 of Form 8-K.
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Item 4.
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Description of Securities.
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Not applicable.
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Item 5.
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Interests of Named Experts and Counsel.
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None.
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Item 6.
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Indemnification of Directors and Officers.
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As permitted by the
Delaware General Corporation Law (“DGCL”), the Company’s Certificate of Incorporation, as amended, limits the
personal liability of a director or officer to the Company for monetary damages for breach of fiduciary duty of care as a director
or officer. Liability is not eliminated for (i) any breach of the director’s or officer’s duty of loyalty
to the Company or its stockholders, (ii) acts or omissions not in good faith or which involve intentional misconduct or a knowing
violation of law, (iii) unlawful payment of dividends or stock purchase or redemptions pursuant to Section 174 of the DGCL, or
(iv) any transaction from which the director derived an improper personal benefit. payments are made by the Company to such officers
and directors.
Delaware Law
The Company is subject
to Section 203 of the DGCL, which prevents an “interested stockholder” (defined in Section 203, generally, as a person
owning 15% or more of a corporation’s outstanding voting stock) from engaging in a “business combination” with
a publicly-held Delaware corporation for three years following the date such person became an interested stockholder, unless: (i)
before such person became an interested stockholder, the board of directors of the corporation approved the transaction in which
the interested stockholder became an interested stockholder or approved the business combination; (ii) upon consummation of the
transaction that resulted in the interested stockholder’s becoming an interested stockholder, the interested stockholder
owns at least 85% of the voting stock of the corporation outstanding at the time the transaction commenced (subject to certain
exceptions), or (iii) following the transaction in which such person became an interested stockholder, the business combination
is approved by the board of directors of the corporation and authorized at a meeting of stockholders by the affirmative vote of
the holders of 66% of the outstanding voting stock of the corporation not owned by the interested stockholder. A “business
combination” includes mergers, stock or asset sales and other transactions resulting in a financial benefit to the interested
stockholder.
The provisions of Section
203 of the DGCL could have the effect of delaying, deferring or preventing a change in the control of the Company.
The Company maintains
a directors and officers insurance and company reimbursement policy. The policy insures directors and officers against
unindemnified loss arising from certain wrongful acts in their capacities and reimburses the Company for such loss for which the
Company has lawfully indemnified the directors and officers. The policy contains various exclusions, none of which relate
to the offering hereunder. The Company also has agreements with its directors and officers providing for the indemnification
thereof under certain circumstances.
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Item 7.
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Exemption from Registration Claimed.
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Not applicable.
* filed herewith
+ compensatory plan or arrangement
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1)
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The undersigned Registrant hereby undertakes:
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a)
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To file, during any period in which offers or sales are being made, a post-effective amendment
to this Registration Statement:
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i)
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To include any prospectus required by Section 10(a)(3) of the Securities Act;
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ii)
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To reflect in the prospectus any facts or events arising after the effective date of the Registration
Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental
change in the information set forth in this Registration Statement. Notwithstanding the foregoing, any increase or decrease in
volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with
the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20 percent
change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective
Registration Statement; and,
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iii)
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To include any material information with respect to the plan of distribution not previously disclosed
in the Registration Statement or any material change to such information in the Registration Statement;
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provided ,
however , that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in reports filed or furnished to the Commission by the Registrant pursuant to Section
13 or 15(d) of the Exchange Act that are incorporated by reference in this Registration Statement.
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b)
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That, for the purpose of determining any liability under the Securities Act, each such post-effective
amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering thereof.
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c)
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To remove from registration by means of a post-effective amendment any of the securities being
registered which remain unsold at the termination of the offering.
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2)
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The undersigned Registrant hereby undertakes that, for purposes of determining any liability under
the Securities Act, each filing of the Registrant’s annual report pursuant to Section 13(a) or 15(d) of the Exchange Act
(and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange
Act) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating
to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide
offering thereof.
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3)
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Insofar as indemnification for liabilities arising under the Securities Act may be permitted to
directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities
Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other
than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection
with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against
public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements
of the Securities Act, the Registrant certifies that it has reasonable grounds to believe that it meets all of the 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 the Town of Jericho, State of New York, on this 30th day of July 2020.
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NATHAN'S FAMOUS, INC.
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By:
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/s/ Eric Gatoff
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Name:
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Eric Gatoff
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Title:
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Chief Executive Officer
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POWER OF ATTORNEY AND SIGNATURES
KNOW ALL PERSONS BY THESE PRESENTS, that each
person whose signature appears below does hereby constitute and appoint Eric Gatoff and Robert Steinberg, with full power of substitution
and full power to act, his true and lawful attorney-in-fact and agent to act for him in his name, place and stead, in any and all
capacities, to sign any and all amendments (including post-effective amendments) to this registration statement, any and all registration
statements filed pursuant to Rule 462(b) of the Securities Act of 1933 (including post-effective amendments) to register additional
securities and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform
each and every act and thing requisite or necessary to be done in order to effectuate the same as fully, to all intents and purposes,
as they or he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of
them or their or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities
Act of 1933, this registration statement has been signed below by the following persons in the capacities and on the dates indicated.
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Signature
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Title
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Date
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/s/ Howard Lorber
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Executive Chairman and Director
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July 30, 2020
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Howard Lorber
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/s/ Eric Gatoff
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Chief Executive Officer and Director
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July 30, 2020
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Eric Gatoff
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/s/ Robert Steinberg
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Vice President – Finance, Chief Financial Officer,
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July 30, 2020
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Robert Steinberg
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Treasurer and Secretary
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/s/ Wayne Norbitz
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Director
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July 30, 2020
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Wayne Norbitz
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/s/ Robert J. Eide
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Director
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July 30, 2020
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Robert J. Eide
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/s/ Barry Leistner
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Director
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July 30, 2020
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Barry Leistner
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/s/ Brian Genson
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Director
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July 30, 2020
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Brian Genson
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/s/ Attilio F. Petrocelli
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Director
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July 30, 2020
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Attilio F. Petrocelli
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/s/ Charles Raich
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Director
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July 30, 2020
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Charles Raich
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/s/ Andrew Levine
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Director
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July 30, 2020
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Andrew Levine
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