Unassociated Document


    EXHIBIT
10.3

     

    10b5-1 Issuer Repurchase
Instructions

    


    Issuer
Securities Repurchase Instructions, dated February 5, 2009 (the “Instructions”),
between Nathan’s Famous, Inc. (the “Issuer”) and Mutual Securities, Inc. (the
“Broker”).

    


    WHEREAS, Issuer has previously publicly announced a Securities Repurchase Program (the “Program”)
for the repurchase of up to 500,000 shares of its common stock, par value $0.01 per share (the
“Common Stock”);

    


    WHEREAS, as part of the Program for the repurchase of its Common Stock, Issuer desires to implement the
instructions set forth herein (the
“Instructions”); and

    


    WHEREAS, Issuer desires to
appoint Broker as its single broker to repurchase shares of Common Stock on its
behalf in accordance with these Instructions and the Program;

    


    NOW, THEREFORE, the Issuer and
Broker hereby agree as follows:

    


    1.           Trading
Requirements

    


    (a)           Broker
shall effect a repurchase (each a “Purchase”) of shares of Common Stock on each
day on which the Nasdaq Global Market (“Nasdaq”) is open for trading at a price
not in excess of the price per share limitations set forth in Exhibit A to this
Agreement.

    


    (b)           Broker
shall purchase shares of Common Stock on the open Nasdaq market or in block
purchases, subject to the (i) price per share and volume limitations set forth
in Exhibit A to this Agreement, (ii) the termination provisions for these
Instructions as set forth in Section 2 below, and (iii) any other limitation as
set forth in these Instructions.

    


    


    2.           Effective
Date/Termination.  The Instructions shall become effective as
of March 16, 2009, and shall terminate upon
the earlier of:

    


    (a)           March 15, 2010;

    


    (b)           such
time as the aggregate purchase price for all shares of Common Stock purchased
under these Instructions equals Three Million Six Hundred Thousand Dollars
($3,600,000.00), including without limitation all applicable fees, costs and
expenses;

    


    (c)           the
receipt of written notice from the Issuer requesting the termination of the
Instructions; provided that Issuer may request termination under this
subsection 2(c) whenever a failure to do so would cause or contribute to,
or allow or contribute to the continuation of, a breach of a covenant or
obligation of Issuer in connection with any obligation other than those arising
solely under these Instructions; or

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    (d)           any
time any trade contemplated hereunder shall result in a violation of, or adverse
consequences under, applicable securities laws.

    


    3.           Representations
and Warranties.

    


    (a)           Issuer
represents and warrants that the Purchase of Common Stock pursuant to these
Instructions has been duly authorized by the Issuer and is consistent with the
Issuer’s Program.

    


    (b)           Issuer
understands that Broker may not be able to effect a Purchase due to a market
disruption or a legal, regulatory or contractual restriction applicable to the
Broker, in contrast with an exercise of discretion by Broker.  If any
Purchase cannot be executed due to a market disruption, a legal, regulatory or
contractual restriction applicable to the Broker or any other event, Broker
shall effect such Purchase as promptly as practical after the cessation or
termination of such market disruption, applicable restriction or other event,
but in every such instance, only in accordance with Rule 10b-18.

    


    (c)           Issuer
represents and warrants that it is not aware of material, nonpublic information
and is entering into these Instructions in good faith and not as part of a plan
or scheme to evade the prohibitions of Rule 10b5-1 under the Exchange
Act.

    


    (d)           Issuer
agrees that it shall not, directly or indirectly, communicate any information
relating to the Common Stock or the Issuer to any employee of Broker or its
affiliates who is involved, directly or indirectly, in executing these
Instructions at any time while these Instructions are in
effect.  Issuer acknowledges and agrees that it does not have, and
shall not attempt to exercise, any influence over how, when or whether to effect
sales of Common Stock pursuant to these Instructions.

    


    (e)           Broker
agrees to notify Issuer by telephone and email, at the following number and
e-mail address, of a Purchase pursuant to these Instructions within
24 hours of any such purchase:

    


    Nathan’s
Famous, Inc.

    Ronald G.
DeVos

    516-338-8500

    Email
Address:  rdevos@nathansfamous.com

    


    (f)           Broker
agrees to make appropriate arrangements with the Issuer and its transfer agent
to arrange for the delivery of the shares of Common Stock purchased pursuant to
these Instructions.

    


    4.           Compliance
with the Securities Laws.

    


    It is the
intent of the parties that these Instructions comply with the requirements of
Rule 10b5-1(c)(1)(i)(B) and (c)(2) under the Exchange Act, and these
Instructions shall be interpreted to comply with the requirements of
Rule 10b5-1(c).

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    5.           Confidentiality.  “Confidential
Information” means these Instructions and all information disclosed by the
Issuer to the Broker, in writing, orally or by inspection of tangible
media.  Confidential Information shall not include any information
which (a) was publicly known prior to the time of disclosure;
(b) becomes publicly known after disclosure by the Issuer through no
wrongful action or omission of the Broker; (c) is obtained by the Broker
from a third party without breach of such third party’s obligations of
confidentiality; or (d) is independently developed by the Broker without
access to the Issuer’s Confidential Information.  Broker agrees
(i) not to use or disclose to any third party Confidential Information for
any purpose other than as contemplated by these Instructions, and (ii) to
use reasonable efforts to protect the secrecy of and avoid unauthorized use and
disclosure of the Confidential Information, including without limitation, using
at least the same degree of care it uses to protect its own confidential
information.  Notwithstanding the foregoing, Broker may use or
disclose Confidential Information to the extent necessary to exercise its rights
or fulfill its obligations hereunder, and/or to comply with applicable
governmental regulations; provided that if Broker is required by law to make any
public disclosure of Confidential Information to the extent it may legally do
so, it will give reasonable advance notice to the Issuer of such disclosure and
will use its reasonable efforts to secure confidential treatment of Confidential
Information prior to its disclosure.

    


    6.           Modification.  These
Instructions may be modified by Issuer provided such modification (i) is in
writing; (ii) is made in good faith and not as a part of a plan or scheme
to evade prohibitions of Rule 10b-5; and (iii)  is in accordance with
the terms of the Program.

    


    7.           Governing
Law.  These Instructions shall be governed by and constructed
in accordance with the laws of the State of New York.

    


    


    [SIGNATURE
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    IN WITNESS
WHEREOF,  the undersigned have signed these Instructions as of
the date first written above.

     

     

    
      	 	Nathan’s Famous,
      Inc.	 
	 	 	 	 
	
               

            	
              By:
      

            	/s/ Eric
      Gatoff	 
	 	 	Name:    
      Eric Gatoff	 
	 	 	Title:      
      Chief Executive Officer	 
	 	 	 	 


    

     

    
      
        	 	Mutual Securities,
      Inc.	 
	 	 	 	 
	
                 

              	
                By:
      

              	/s/ Ryan Sabol	 
	 	 	Name:    
      Ryan Sabol	 
	 	 	Title:      
      Executive Vice President