Exhibit 97.1
NATHAN'S FAMOUS, INC.
CLAWBACK POLICY
1. | INTRODUCTION |
Nathan's Famous, Inc. (the “Company”) is adopting this Clawback Policy (this “Policy”), effective as of October 2, 2023 (the “Effective Date”), to provide for the Company’s criteria and process of recovering certain Erroneously Awarded Compensation to Affected Officers under certain circumstances.
This Policy is administered by the Compensation Committee (the “Committee”) of the Company’s board of directors (the “Board”). The Committee will have full and final authority to make any and all determinations required under this Policy. Any determination by the Committee with respect to this Policy will be final, conclusive and binding on all parties. The Board may amend or terminate this Policy at any time upon the recommendation of the Committee.
This Policy is intended to comply with Section 10D of the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), Rule 10D‐1 thereunder, and the applicable rules of the Nasdaq Stock Market (including Rule 5608) (the “Exchange”) and will be interpreted and administered consistent with that intent.
2. | EFFECTIVE DATE |
This Policy will apply to all Incentive‐Based Compensation received by an Affected Officer on or after the Effective Date to the extent permitted or required by applicable law or the rules of the Exchange.
3. | DEFINITIONS |
For purposes of this Policy, the following definitions apply:
“Affected Officer” means any current or former “officer” as defined in Exchange Act Rule 16a‐1 and includes the Company’s president, principal financial officer, principal accounting officer (or if there is no such accounting officer, the controller), any vice-president of the Company in charge of a principal business unit, division, or function (such as sales, administration, or finance), any other officer who performs a policy-making function, or any other person who performs similar policy-making functions for the Company.
“Erroneously Awarded Compensation” means the amount of Incentive‐Based Compensation received that exceeds the amount of Incentive‐Based Compensation that otherwise would have been received had it been determined based on the Restatement, computed without regard to any taxes paid. In the case of Incentive‐Based Compensation based on stock price or total shareholder return, where the amount of Erroneously Awarded Compensation is not subject to mathematical recalculation directly from the information in the Restatement, the amount will reflect a reasonable estimate of the effect of the Restatement on the stock price or total shareholder return upon which the Incentive‐Based Compensation was received, as determined by the Committee in its sole discretion. The Company will maintain documentation of the determination of that reasonable estimate and provide the documentation to the Exchange as required by the Exchange.
“Financial Reporting Measure” means any measure that is determined and presented in accordance with the accounting principles used in preparing the Company’s financial statements, and any measures that are derived wholly or in part from those measures, whether or not the measure is presented within the financial statements or included in a filing with the Securities and Exchange Commission. Stock price and total shareholder return are Financial Reporting Measures.
“Incentive‐Based Compensation” means any compensation that is granted, earned or vested based in whole or in part upon the attainment of a Financial Reporting Measure.
“Restatement” means an accounting restatement due to the material noncompliance of the Company with any financial reporting requirement under the securities laws, including any required accounting restatement that corrects errors in previously issued financial statements (1) that are material to previously issued financial statements, or (2) or that would result in a material misstatement if the error were corrected in the current period or left uncorrected in the current period.
4. | RECOVERY |
If the Company is required to prepare a Restatement, the Company will seek to recover and claw back reasonably promptly all Erroneously Awarded Compensation received on or after the Effective Date by an Affected Officer:
(a) After beginning service as an Affected Officer;
(b) Who served as an Affected Officer at any time during the performance period for that Incentive‐Based Compensation;
(c) While the Company has a class of securities listed on the Exchange; and
(d) During the three completed fiscal years immediately preceding the date on which the Company was required to prepare the Restatement (including any transition period within or immediately following those three completed fiscal years that results from a change in the Company’s fiscal year, determined in accordance with the rules of the Exchange).
For purposes of this Policy:
(1) Erroneously Awarded Compensation is deemed to be received in the Company’s fiscal year during which the Financial Reporting Measure specified in the Incentive‐Based Compensation is attained, even if the payment or grant of the Incentive‐Based Compensation occurs after the end of that period; and
(2) the date the Company is required to prepare a Restatement is the earlier of (1) the date the Board, the Committee or any officer of the Company authorized to take such action if Board action is not required concludes, or reasonably should have concluded, that the Company is required to prepare the Restatement, and (2) the date a court, regulator, or other legally authorized body directs the Company to prepare the Restatement.
(3) The recovery of Erroneously Awarded Compensation is not dependent on if or when the Restatement is filed.
(4) This Policy shall be binding and enforceable against all Affected Officers and their beneficiaries, heirs, executors, administrators or other legal representatives.
5. | SOURCES OF RECOUPMENT |
To the extent permitted by applicable law, the Committee may, in its discretion, seek recoupment of Erroneously Awarded Compensation from an Affected Officer from any of the following sources: (1) prior Incentive‐Based Compensation payments; (2) future payments of Incentive‐Based Compensation; (3) cancellation of outstanding Incentive‐Based Compensation; and (4) direct repayment. To the extent permitted by applicable law, the Company may offset such amount against any compensation or other amounts owed by the Company to the Affected Officer.
6. | LIMITED EXCEPTIONS TO RECOVERY |
Notwithstanding the foregoing, the Committee, in its discretion, may choose to forgo recovery of Erroneously Awarded Compensation under the following circumstances, on condition that the Committee (or a majority of the independent members of the Board) has made a determination that recovery would be impracticable because:
(a) the direct expense paid to a third party to assist in enforcing this Policy would exceed the recoverable amounts, and in which case the Company has made a reasonable attempt to recover the Erroneously Awarded Compensation, has documented that attempt and has (to the extent required) provided that documentation to the Exchange;
(b) recovery would violate home country law where the law was adopted prior to November 28, 2022, and in which case the Company provides an opinion of home country counsel to that effect to the Exchange that is acceptable to the Exchange; or
(c) recovery would likely cause an otherwise tax‐qualified retirement plan, under which benefits are broadly available to employees of the Company, to fail to meet the requirements of 26 U.S.C. 401(a)(13) or 26 U.S.C. 411(a) and regulations thereunder.
7. | INDEMNIFICATION AND INSURANCE |
Neither the Company nor any of its subsidiaries is permitted to indemnify or reimburse any Affected Officer against the recovery of Erroneously Awarded Compensation. In addition, the Company and its subsidiaries are prohibited from paying the premiums on an insurance policy that would cover an Affected Officer’s potential clawback obligations, or entering into any agreement that exempts any Incentive‐Based Compensation from this Policy or that waives the Company’s or any of its subsidiary’s rights to recover Erroneously Awarded Compensation in accordance with this Policy, and this Policy will supersede any such agreement.
8. | SEVERABILITY |
If any provision of this Policy or the application of any such provision to any Affected Officer is adjudicated to be invalid, illegal or unenforceable in any respect, that invalidity, illegality or unenforceability will not affect any other provisions of this Policy, and the invalid, illegal or unenforceable provisions is to be deemed amended to the minimum extent necessary to render that provision or application enforceable.
9. | NO IMPAIRMENT OF OTHER REMEDIES |
This Policy does not preclude the Company from taking any other action to enforce an Affected Officer’s obligations to the Company or limit any other remedies that the Company may have available to it and any other actions that the Company may take, including termination of employment, institution of civil proceedings, or reporting of any misconduct to appropriate government authorities. The Company will comply with the disclosure, documentation and records requirements related to this Policy under Section 10D of the Exchange Act, applicable listing rules of the Exchange and applicable Securities and Exchange Commission filings. This Policy is in addition to the requirements of Section 304 of the Sarbanes‐Oxley Act of 2002 that are applicable to the Company’s chief executive officer and chief financial officer. Any right of recovery under this Policy is in addition to, and not in lieu of, any other remedies or rights of recovery that may be available to the Company and any of its subsidiaries under applicable law, regulation or rule or under the terms of any similar policy in any employment agreement, offer letter, compensation plan, equity award agreement, or similar agreement and any other legal remedies available to the Company or any of its subsidiaries. The Committee may require that any employment agreement, offer letter, compensation plan, equity award agreement, or any other agreement entered into on or after the Effective Date will, as a condition to the grant of any benefit thereunder, require an Affected Officer to agree to abide by the terms of this Policy. In the event of any inconsistency between the terms of this Policy and the terms of any employment agreement, equity award agreement, or similar agreement under which Incentive-Based Compensation has been granted, awarded, earned or paid to an Affected Officer, whether or not deferred, the terms of this Policy shall govern.
* * * *
ATTESTATION AND ACKNOWLEDGEMENT
OF
CLAWBACK POLICY
By my signature below, I acknowledge and agree that:
● | I have received and read the attached Clawback Policy (this "Policy") of Nathan's Famous, Inc. (this "Company"). |
● | I hereby agree to abide by all of the terms of this Policy both during and after my employment with the Company, including, without limitation, by promptly repaying or returning any Erroneously Awarded Compensation to the Company as determined in accordance with this Policy. |
| Signature: | ||
| Name: | ||
| Date: |