As filed with the Securities and Exchange Commission on June 14, 2018
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Potbelly Corporation
(Exact name of registrant as specified in its charter)
| Delaware | 36-4466837 | |
| (State or other jurisdiction of incorporation or organization) | (I.R.S. Employer Identification No.) |
Amended and Restated Potbelly Corporation 2013 Long-Term Incentive Plan
(Full title of the plan)
Matthew J. Revord
Senior Vice President, Chief Legal Officer, Chief People Officer, General Counsel and Secretary
Potbelly Corporation
111 N. Canal, Suite 850, Chicago, Illinois 60606
(Name and address of agent for service)
312-951-0600
(Telephone number, including area code, of agent for service)
copy to:
Edward S. Best
Mayer Brown LLP
71 South Wacker Drive
Chicago, Illinois 60606
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. (Check one):
| Large accelerated filer | ☐ | Accelerated filer | ☐ | |||
| Non-accelerated filer | ☐ (Do not check if a smaller reporting company) | Smaller reporting company | ☐ | |||
| Emerging growth company | ☒ |
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
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| Title of securities to be registered |
Amount to be registered (1) |
Proposed maximum offering price per share (3) |
Proposed maximum aggregate price |
Amount of registration fee | ||||
| Common Stock $0.01 par value |
1,000,000 (2) | $13.03 | $13,030,000 | $1,622.23 | ||||
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| (1) | In accordance with Rule 416 under the Securities Act of 1933, as amended, this registration statement shall be deemed to cover any additional securities that may from time to time be offered or issued to prevent dilution resulting from stock splits, stock dividends or similar transactions. |
| (2) | The Registrant is registering 1,000,000 additional shares issuable under the Amended and Restated Potbelly Corporation 2013 Long-Term Incentive Plan pursuant to this Registration Statement. |
| (3) | Estimated solely for the purpose of calculating the registration fee pursuant to Rules 457(c) and 457(h) of the Securities Act of 1933, as amended, and based upon the average of the high and low prices of the Registrant’s Common Stock as reported on the Nasdaq Global Select Market on June 13, 2008. |
EXPLANATORY NOTE
Potbelly Corporation (the “Registrant”) is filing this Registration Statement to register 1,000,000 additional shares of its common stock, par value $0.01 per share, reserved for issuance under the Amended and Restated Potbelly Corporation 2013 Long-Term Incentive Plan. This Registration Statement is being filed pursuant to General Instruction E of Form S-8 under the Securities Act. Upon the filing and effectiveness of this Registration Statement, the total number of shares of Common Stock registered pursuant to the Amended and Restated Potbelly Corporation 2013 Long-Term Incentive Plan is 3,500,000.
The contents of the Registrant’s previously filed registration statements on Form S-8 relating to the Potbelly Corporation 2013 Long-Term Incentive Plan (No. 333-191917 filed with the Securities and Exchange Commission (the “Commission”) on October 25, 2013 and No. 333-212908 filed with the Commission on August 4, 2016) are incorporated by reference into this Registration Statement, except that the provisions contained in Part II of such earlier registration statements are modified as set forth in this Registration Statement.
Part II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
| Item 3. | Incorporation of Documents by Reference. |
The following documents filed with the Commission by us are incorporated by reference in this Registration Statement:
| (a) | The Registrant’s Annual Report on Form 10-K for the fiscal year ended December 31, 2017, filed with the Commission on February 28, 2018 (Commission File No. 001-36104 (the “Annual Report”); |
| (b) | The Registrant’s Quarterly Reports on Form 10-Q for the fiscal quarter ended April 1, 2018 filed with the Commission on May 9, 2018; |
| (c) | The Registrant’s Current Reports on Form 8-K filed with the Commission on April 13, 2018, April 30, 2018, May 14, 2018 and May 24, 2018; and |
| (d) | The description of the Common Stock set forth under the heading “Description of Registrant’s Securities to be Registered” contained in the Registrant’s Registration Statement on Form 8-A (File No. 001-36104 filed with the Commission pursuant to Section 12 of the Exchange Act on September 30, 2013. |
In addition, all documents subsequently filed with the Commission by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-effective amendment which indicates that all securities offered herein have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference into this Registration Statement and to be a part hereof from the date of filing of such documents. In no event, however, will any information that the Registrant discloses under Item 2.02 or 7.01 of any Current Report on Form 8-K that the Registrant may from time to time furnish to the Commission be incorporated by reference into, or otherwise become a part of, this Registration Statement.
Any statement contained in this Registration Statement or any 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 is inconsistent with or modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed to constitute a part of this Registration Statement, except as so modified or superseded.
1
| Item 8. | Exhibits. |
See Exhibit Index which is incorporated herein by reference.
EXHIBIT INDEX
2
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, 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 City of Chicago, State of Illinois, on June 14, 2018.
| POTBELLY CORPORATION | ||||||
| By: | /s/ Alan Johnson | |||||
| Alan Johnson | ||||||
| Chief Executive Officer and President | ||||||
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Alan Johnson, Michael Coyne and Matthew Revord, and each of them, as such person’s true and lawful attorney in fact and agent with full power of substitution, for such person in any and all capacities, to sign any and all amendments to this Registration Statement on Form S-8 (including post-effective amendments), and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney in fact, proxy and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully for all intents and purposes as such person might or could do in person, hereby ratifying and confirming all that said attorney in fact, proxy and agent, or such person’s substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement on Form S-8 has been signed below by the following persons in the capacities and on the dates indicated.
| Name |
Position |
Date | ||
| /s/ Alan Johnson Alan Johnson |
Director, Chief Executive Officer and President (Principal Executive Officer) |
June 14, 2018 | ||
| /s/ Michael Coyne Michael Coyne |
Senior Vice President and Chief Financial Officer (Principal Financial and Accounting Officer) |
June 14, 2018 | ||
| /s/ Peter Bassi Peter Bassi |
Director | June 14, 2018 | ||
| /s/ Joseph Boehm Joseph Boehm |
Director | June 14, 2018 | ||
| /s/ Ann-Marie Campbell Ann-Marie Campbell |
Director | June 14, 2018 | ||
| /s/ Susan Chapman-Hughes Susan Chapman-Hughes |
Director | June 14, 2018 | ||
3
| Name |
Position |
Date | ||
| /s/ Sue Collyns Sue Collyns |
Director | June 14, 2018 | ||
| /s/ Dan Ginsberg Dan Ginsberg |
Director | June 14, 2018 | ||
| /s/ Marla Gottschalk Marla Gottschalk |
Director | June 14, 2018 | ||
| /s/ Harvey Kanter Harvey Kanter |
Director | June 14, 2018 | ||
| /s/ Benjamin Rosenzweig Benjamin Rosenzweig |
Director | June 14, 2018 | ||
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Exhibit 5.1
| Mayer Brown LLP | ||||
| 71 South Wacker Drive | ||||
| Chicago, Illinois 60606-4637 | ||||
| Main Tel +1 312 782 0600 | ||||
| Main Fax +1 312 701 7711 | ||||
| June 14, 2018 | www.mayerbrown.com |
Potbelly Corporation
111 N. Canal Street, Suite 850
Chicago, Illinois 60606
| Re: | Registration Statement on Form S-8 |
Ladies and Gentlemen:
We have acted as counsel to Potbelly Corporation, a Delaware corporation (the “Company”), in connection with the registration statement on Form S-8 (the “Registration Statement”) relating to the registration under the Securities Act of 1933, as amended (the “Securities Act”), of 1,000,000 additional shares of the Company’s common stock, par value $0.01 per share (the “Shares”), issuable pursuant to the Company’s Amended and Restated 2013 Long-Term Incentive Plan (the “Plan”).
As counsel to the Company, we have examined the Company’s certificate of incorporation and the Company’s bylaws and resolutions of the board of directors of the Company. We have also examined such other documents and instruments and have made such further investigations as we have deemed necessary or appropriate in connection with this opinion. In expressing the opinion set forth below, we have assumed the genuineness of all signatures, the conformity to the originals of all documents reviewed by us as copies, the authenticity and completeness of all original documents reviewed by us in original or copy form and the legal competence of each individual executing any document. As to matters of fact (but not as to legal conclusions), to the extent we deemed proper, we have relied on certificates of responsible officers of the Company and of public officials.
Based upon and subject to the foregoing, and having regard for legal considerations which we deem relevant, we are of the opinion that the Shares have been duly authorized and, when issued and sold in accordance with the Plan, will be validly issued, fully paid and non-assessable.
The opinion expressed above is limited to the Delaware General Corporation Law and we express no opinion with respect to any other laws.
We consent to your filing this opinion as an exhibit to the Registration Statement. In giving such consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Securities and Exchange Commission thereunder.
| Very truly yours, | ||||||
| ||||||
| Mayer Brown LLP | ||||||
ESB:
Mayer Brown LLP operates in combination with other Mayer Brown entities, which have offices in North America,
Europe and Asia and are associated with Tauil & Chequer Advogados, a Brazilian law partnership.
Exhibit 23.1
|
Deloitte & Touche LLP | |||||
| 111 S. Wacker Drive | ||||||
| Chicago, IL 60606 | ||||||
| USA | ||||||
| Tel: +1 312 486 1000 | ||||||
| Fax: +1 312 486 | ||||||
| www.deloitte.com | ||||||
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated February 28, 2018, relating to the consolidated financial statements of Potbelly Corporation and subsidiaries appearing in the Annual Report on Form 10-K of Potbelly Corporation and subsidiaries for the year ended December 31, 2017.
Chicago, IL
June 14, 2018