EXHIBIT 10.1
AGREEMENT
AGREEMENT dated
as of this 30th day of June, 2009, by and among Prime Logic Capital
LLC, a Delaware limited liability company (“PLC”),
Cantor Fitzgerald & Co., a New York partnership
(“Cantor”), and Nathan’s Famous, Inc., a Delaware
corporation (the “Company”).
RECITALS:
WHEREAS , PLC is, on the date hereof, the record and
beneficial owner of 238,129 shares of Common Stock, par value $.01
per share, of the Company (the “Shares”);
and
WHEREAS , pursuant to the terms and conditions contained
herein, (i) PLC wishes to sell the Shares to Cantor, (ii) Cantor
wishes to purchase the Shares from PLC and resell the Shares to the
Company, and (iii) the Company wishes to purchase the Shares from
Cantor.
NOW, THEREFORE , in consideration of the agreements and
provisions contained herein, the parties hereto hereby agree as
follows:
1.
Sale of Shares.
A. PLC
hereby agrees to sell the Shares to Cantor, and Cantor hereby
agrees to purchase the Shares from PLC. Cantor shall pay
to PLC $12.60 per share and PLC shall deliver the
Shares to Cantor by means of book entry transfer. Cantor
shall deliver funds upon receipt of shares and the transaction
shall settle in the ordinary manner on T+3 from trade
date.
B. Subject
to and conditioned upon the consummation of the sale of the Shares
from PLC to Cantor referred to in Section 1(A) hereof, Cantor
hereby agrees to sell the Shares to the Company, and the Company
hereby agrees to purchase the Shares from Cantor. The
Company shall pay to Cantor $12.63 per share and Cantor shall
deliver the Shares to the Company by means of book entry
transfer. The Company shall deliver funds upon receipt
of shares and the transaction shall settle in the ordinary manner
on T+3 from trade date.
2.
PLC Acknowledgements. PLC
hereby acknowledges the following to Cantor and the
Company:
A. Cantor
or the Company has, or may have, material, non-public information
relating to the Company, including relating to the Company’s
results of operations for the fiscal quarter ending June 28,
2009.
B. any
non-public information may impact the value of the Shares being
sold.
C. PLC
has not requested and does not wish to receive any non-public
information from the Company.
3.
Cantor Acknowledgements.
Cantor hereby acknowledges the following to the
Company:
A. the
Company has, or may have, material, non-public information relating
to the Company, including relating to the Company’s results
of operations for the fiscal quarter ending June 28,
2009.
B. any
non-public information may impact the value of the Shares being
sold.
C. Cantor
has not requested and does not wish to receive any non-public
information from the Company.
4.
PLC Representations, Warranties and Covenants.
PLC hereby represents, warrants and covenants to Cantor
and the Company as follows:
A. PLC
has full corporate power and authority to execute and deliver this
agreement and to perform its obligations hereunder. This
agreement and each other document, instrument or agreement executed
and delivered by PLC in connection with the transactions
contemplated hereby has been duly executed and delivered by PLC and
constitutes the valid and legally binding obligation of PLC,
enforceable against it in accordance with its terms and conditions,
except as the enforceability thereof may be limited by bankruptcy,
insolvency or other laws relating to or affecting creditors’
rights.
B. PLC
is the legal and beneficial owner of the Shares and has the right
to transfer the whole of the legal and beneficial interest in and
title to the Shares, which will be transferred to the Company on
the closing date free from any pledge, charge, security interest,
hypothecation, restriction, encumbrance, right to acquire, right of
pre-emption, option, conversion right, third party right or
interest right of set off or counterclaim, equities, trust
arrangement or any other type of preferential agreement
(collectively, “Liens”).
C. Notwithstanding
the provisions of Section 2, PLC has sufficient information on
which to base its decision to sell the Shares.
D. Neither
Cantor nor the Company has made any representations (oral or
otherwise) upon which PLC is relying in connection with the sale of
the Shares.
E. PLC
has conducted its own analysis and its own due diligence with
respect to the transaction, and it has conducted such analysis to
whatever extent it considers appropriate to form a basis for its
decision to sell the Shares.
F. PLC
is experienced and sophisticated in financial and business matters
and it is, on its own, capable of evaluating the merits and the
risks of the sale of the Shares. In making its decision to sell the
Shares, PLC has relied solely on its own advisors, and not on the
advice of Cantor, the Company or the Company’s advisors or
legal counsel.
G. in
consideration for Cantor’s purchase of the Shares, PLC, for
and on behalf of itself, its affiliates, attorneys, successors, and
assigns, hereby waives, remits,
