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Exhibit 10.1
EMPLOYMENT AGREEMENT
This
Employment Agreement is entered into on November 6, 2007 with
an effective date of May 31
st ,
2007 ("Agreement"), by and between NATHAN’S FAMOUS, INC., a
corporation incorporated under the laws of the State of Delaware,
with its principal place of business at 1400 Old Country Road,
Westbury, New York 11590 (the "Company"), and Donald L. Perlyn,
residing at 7403 Floranada Way, Delray Beach, Florida 33446 (the
"Executive").
WITNESSETH :
WHEREAS,
the Company desires to employ the Executive and to receive
certain services from him, and the Executive is willing to be
employed and to render such services to the Company, all upon
the terms and subject to the conditions contained
herein.
NOW,
THEREFORE, in consideration of the mutual covenants and
agreements contained herein, and other good and valuable
consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties agree as follows:
1
1.
Recitals :
The foregoing recitals are true and correct and are incorporated
herein by reference thereto.
2
.
Employment .
The
Company hereby agrees to employ Executive, and Executive
agrees to be employed by the Company, on the terms and
conditions herein contained, to serve as the Executive Vice
President of the Company and a member of the Board of
Directors of the Company. Executive shall report to
Company’s President and Chief Operating Officer (or such
other person as shall be determined by the Board of Directors
of Company). Executive’s responsibilities shall include
the continued development of Company’s Branded Products
Program and its international franchising program, as well as
to render such services in connection with Company’s (or
any of its affiliate’s) business as the Company’s
Board of Directors shall reasonably require from time to time.
The Executive shall devote substantially all of his business
time, energy, skill and efforts to the performance of his
duties hereunder and shall faithfully and diligently serve the
Company. The foregoing shall not prevent Executive from
participating in not-for-profit activities or from managing
his passive personal investments provided that these
activities do not materially interfere with Executive's
obligations hereunder.
3
3.
Term of Employment .
Executive's
employment under this Agreement shall be for a term commencing
on May 31, 2007 (the "Effective Date") and, subject to earlier
termination as provided in Section 8 below, terminating on
September 30, 2008 (the "Initial Term"). The Initial Term
shall be automatically extended for successive one-year
periods (the "Additional Terms") unless terminated at the end
of the Initial Term or any Additional Term by either party
upon one hundred eighty (180) days’ prior written notice
given to the other party (the Initial Term and any Additional
Terms shall be referred to as the "Employment Term").
Notwithstanding anything else herein, the provisions of
Section 9 hereof shall survive and remain in effect
notwithstanding the termination of the Employment
Term.
4
4.
Compensation .
(
a
)
As
compensation for his services under this Agreement, the
Company shall pay Executive a salary at the rate of Two
Hundred Ten Thousand Dollars ($210,000) per year (the "Base
Salary"), payable in equal installments (not less frequently
than monthly) and subject to withholding in accordance with
the Company's normal payroll practices. The Executive's Base
Salary shall be reviewed annually by the Company and may be
increased, but not decreased, in the Company's sole
discretion.
(
b
)
In
addition to the Base Salary, Executive shall participate in
any executive bonus program established by the Company from
time to time.
5
5.
Benefits and Fringes .
During
the Employment Term, Executive shall be entitled to such
benefits and fringes, if any, as are generally provided from
time to time by the Company to its executive employees of a
comparable level, including any life, medical or dental
insurance plans for the benefit of Executive and members of
his immediate family, and pension, profit-sharing, 401(k) and
other similar plans and on the same terms as so provided.
Notwithstanding the foregoing, the Executive shall be provided
with long-term disability insurance providing for payment of a
minimum monthly benefit of $6,896 and with life insurance,
payable to his designated beneficiary, at least equal to
$1,000,000; and provided, further that Executive shall be
provided with an automobile allowance of $1,000 per month
during the Employment Term.
6
6.
Expenses .
The
Company shall reimburse Executive in accordance with its
expense reimbursement policy as in effect from time to time
for all reasonable expenses (including, without limitation,
Executive’s professional dues, license fees, continuing
educational courses, professional association membership fees,
airplane travel and other travel expenses and reasonable
expenses related to the repair and maintenance of the
automobile used by him for business purposes) incurred by
Executive in connection with the performance of his duties
under this Agreement upon the presentation by Executive of an
itemized account of such expenses and appropriate
receipts.
7
7.
Vacation.
During
the Employment Term, Executive shall be entitled to vacation
in accordance with the Company's practices, provided that
Executive shall be entitled to not less than four (4) weeks
paid vacation in each full contract year. Any vacation not
taken in any year shall be deemed to be forfeited by the
Executive as of October 1 of the succeeding year.
8
8.
Termination.
(
a
)
Executive's
employment under this Agreement and the Employment Term shall
terminate as follows:
(
i
)
automatically
on the date of Executive's death.
(
ii
)
Upon
written notice given by the Company to the Executive if
Executive is unable to perform his material duties hereunder
for 180 days (whether or not continuous) during any period of
360 consecutive days by reason of physical or mental
disability.
(
iii
)
Upon
written notice by the Company to the Executive for Cause.
Cause shall mean (A) the Executive's conviction of a felony
involving moral turpitude (after exhaustion or lapse of all
rights of appeal); (B) willful refusal to perform his duties
as Executive Vice President or director of the Company and as
otherwise set forth in Section 2 hereof, which is not remedied
promptly after receipt by the Executive of written notice from
the Company specifying the details thereof; and (C)
Executive's dishonesty in the performance of his duties. Upon
a termination for Cause, Executive (and his representative)
shall be given the opportunity to appear before the Board of
Directors of the Company (the “Board”) to explain
why the Executive believes that Cause did not occur. Such
appearance shall be scheduled on no less than twenty (20) and
no more than forty (40) days written notice to Executive. In
the event the Board agrees with the Executive, which shall be
a determination made in its sole discretion, the Executive
shall be retroactively reinstated in his position. The removal
pending such Board meeting shall not be deemed Good Reason
under (vi) below.
(
iv
)
Upon
written notice by the Company without Cause.
(
v
)
Upon
the voluntary resignation of the Executive without Good Reason
upon sixty (60) days prior written notice to the Company
(which the Company may in its sole discretion make effective
earlier).
(
vi
)
Upon
the written resignation of the Executive for Good Reason
stating with specificity the details of the Good Reason, if
the stated Good Reason is not cured within thirty (30) days of
the giving of such notice. "Good Reason" shall mean (A)
relocation of the Executive's office, or materially change the
location at which Executive is required to perform his duties,
from within the Territory, (B) any material reduction in his
authority, duties or responsibilities or (C) any other
material breach of any provision of this Agreement by the
Company. For purposes hereof, "Territory" shall mean Broward,
Miami-Dade and Palm Beach Counties, Florida.
(
vii
)
Upon
written notice of non-renewal by the Company or Executive
pursuant to Section 3 hereof.
(
b
)
Upon
any termination of the Employment Term Executive shall be
entitled to receive any unpaid salary and accrued vacation
through his date of termination and any benefits under any
benefit plan in accordance with the terms of said plan. In
addition, (i) if the termination is pursuant to (a)(iv) or
(a)(vi) above, Executive shall receive (without a duty to
mitigate) severance pay in a lump sum equal to three (3) times
the amount of Executive’s Base Salary in effect at the
time of termination, and (ii) if termination is by the Company
pursuant to (a)(vii) above, Executive shall receive (without a
duty to mitigate) se
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