•failure of our marketing efforts to attract and retain customers;
•risks of food safety and food-borne illnesses and other health concerns about our food;
•damage to our reputation caused by, for example, any perceived reduction in the quality of our food, service or staff, or an adverse change in our culture;culture or the operations of our franchisees;
local, regional, national and international economic and political conditions;
•the seasonality of our business;
•demographic trends;
trends, traffic patterns and our ability to effectively respond in a timely manner to changes in traffic patterns;
•the cost of advertising and media;
•inflation or deflation, unemployment rates, interest rates, and increases in various costs, such as real estate and insurance costs;
•risks associated with labor disputes, labor unions, or our ability to offset higher labor costs;
•adverse weather conditions, local strikes, natural disasters and other disasters, especially in local or regional areas in which our shops are concentrated;
•our ability to grow our digital business;
•litigation or legal complaints alleging, among other things, illness, injury or violations of federal and state workplace and employment laws and our ability to obtain and maintain required licenses and permits;
•government actions and policies; tax and other legislation; regulation of the restaurant industry; and accounting standards or pronouncements;
•security breaches of confidential customer information in connection with our electronic processing of credit and debit card transactions or the failure of our information technology system;
•the volatility of our common stock and actions taken by activist stockholders;
•our ability to adequately protect our intellectual property;
•the costs associated with complying or meeting environmental, social and governance regulations and stakeholder expectations;
•the impact of climate-related risks on our financial results, leased premises and operations; and
•other factors discussed under “Business” in Item 1, “Risk Factors” in Item 1A and “Management’s Discussion and Analysis of Financial Condition and Results of Operations” in Item 7 of our most recent annual report on Form 10-K.
These factors should not be construed as exhaustive and should be read in conjunction with the other cautionary statements included in this document. These risks and uncertainties, as well as other risks of which we are not aware or which we currently do not believe to be material, may cause our actual future results to be materially different than those expressed in our forward-looking statements. We do not undertake to update our
forward-looking statements, whether as a result of new information, future events or otherwise, except as may be required by law.
You should read this prospectus completely and with the understanding that our actual future results, levels of activity, performance and achievements may be different from what we expect and that these differences may be material. We qualify all of our forward-looking statements by these cautionary statements.
Potbelly Corporation is a sandwich concept that has been feeding customers’ smiles with warm, toasty sandwiches, signature salads, hand-dipped shakes, freshly-baked cookies and other fresh menu items, customized just the way customers want them, for more than 40 years. Potbelly promises Fresh, Fast & Friendly service in ana welcoming environment that reflects the local neighborhood. Our employees are trained to engage with our customers in a genuine way to provide a personalized experience. We believe the combination of our great food, people and atmosphere allows Potbelly to help people love lunch and creates a devoted base of Potbelly fans.customers.
We believe that a key to our past and future success is our culture. It is embodied in The Potbelly Advantage,Way, which is an expression of our Vision, Mission and Values, and the foundation of everything we do. Our Vision is to be your moment of escape, thanks to our relaxing shop, friendly faces, and toasty sandwiches.the most loved sandwich brand in every neighborhood. Our Mission is to help people love lunch.delight customers with great food and good vibes. Our Values embody both how we lead and how we behave and form the cornerstone of our culture. We use simpleclear language that resonates from the frontline associate to the most senior levels of the organization, creating shared expectations and accountabilities in how we approach our day-to-day activities. We strive to be a fun, friendly and hardworking group of people who enjoy taking care of our customers, while at the same time taking care of each other.
As of December
27, 2020,31, 2023, we had
446424 shops in
3231 states and the District of Columbia. Of these, the
companyCompany operated
400345 shops and franchisees operated
4679 shops.
We were incorporated in Delaware in June 2001 as Potbelly Sandwich Works, Inc. and changed our name to Potbelly Corporation in 2002. Our principal offices are located at 111 North Canal Street, Suite
850,325, Chicago, Illinois 60606 and our telephone number is (312)
951-0600. We maintain a website with the address www.potbelly.com. The contents of our website are not incorporated by reference into this prospectus.
An investment in our securities involves risks. You should consider carefully the risks and uncertainties described under the heading “Risk Factors” in any applicable prospectus supplement and under the caption “Risk Factors” in any of our filings with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act, which are incorporated herein by reference, before you decide whether to purchase any of our securities. These risks could materially adversely affect our business, financial condition, results of operations and cash flows, and you may lose part or all of your investment. For more information, see the section of this prospectus titled “Where You Can Find More Information.”
USE OF PROCEEDSWe will not receive any
Unless stated otherwise in a prospectus supplement, the net proceeds from the sale or other dispositionof securities described in this prospectus will be used for general corporate purposes.
DESCRIPTION OF CAPITAL STOCK
The following is a description of certain general terms and provisions of our common stock and preferred stock. This description does not purport to be complete and is subject in all respects to applicable Delaware law and qualified by reference to the Selling Stockholdersprovisions of our certificate of incorporation and our bylaws. Copies of our certificate of incorporation and bylaws are incorporated by reference herein and will be provided to stockholders upon request. See “Where Can You Find More Information.”
General
The Company’s authorized capital stock consists of 200,000,000 shares of common stock, par value $0.01 per share, and 10,000,000 shares of undesignated preferred stock. As of April 28, 2024, we had 29,358,757 shares of common stock and no shares of preferred stock issued and outstanding.
Common Stock
Voting Rights
Each outstanding share of common stock is entitled to one vote on all matters submitted to a vote of stockholders. Our certificate of incorporation does not provide for cumulative voting in connection with the election of directors, and accordingly, holders of more than 50% of the shares voting are able to elect all of the directors. The holders of a majority of the shares of common stock issued and outstanding constitute a quorum at all meetings of the stockholders for the transaction of business.
Dividend Rights
Subject to preferences that may apply to shares of preferred stock outstanding at the time, holders of outstanding shares of common stock are entitled to receive dividends out of assets legally available at the times and in the amounts as the board of directors may from time to time determine.
Liquidation Rights
Subject to applicable law and the rights, if any, of the holders of any series of preferred stock of the Company then outstanding, in the event of the liquidation, dissolution or winding-up of the Company, the holders of our Commoncommon stock will be entitled to receive pro rata our assets that are legally available for distribution, after payment of all debts and other liabilities and subject to the prior rights of any holders of preferred stock then outstanding.
Redemption, Conversion or Preemptive Rights
Holders of common stock have no redemption rights, conversion rights or preemptive rights to subscribe to any or all additional issues of shares of capital stock the Company or securities convertible into capital stock of the Company.
Listing
Currently, our common stock is listed on the Nasdaq under the ticker symbol “PBPB.”
Preferred Stock
We are authorized to issue up to 10,000,000 shares of preferred stock, par value $0.01 per share, from time to time, in one or more series. Our board of directors may, without further action by our stockholders, from time to time, direct the issuance of shares of preferred stock in series and may, at the time of issuance, determine the designations, powers, preferences, privileges, and relative participating, optional or special rights as well as the qualifications, limitations or restrictions thereof, including dividend rights, conversion rights, voting rights, terms of redemption and liquidation preferences, any or all of which may be greater than the rights of the common stock. Satisfaction of any dividend preferences of outstanding shares of preferred stock would reduce the amount of funds available for the payment of dividends on shares of our common stock. Holders of shares of preferred stock may be entitled to receive a preference payment in the event of our liquidation before any payment is made to the holders of shares of our common stock. Under specified circumstances, the issuance of shares of preferred stock may render more difficult or tend to discourage a merger, tender offer or proxy contest, the assumption of control by a holder of a large block of our securities or the removal of incumbent management. Upon the affirmative vote of a majority of the total number of directors then in office, our board of directors, without stockholder approval, may issue shares of preferred stock with voting and conversion rights that could adversely affect the holders of shares of our common stock and the market value of our common stock.
Prior to the issuance of shares of each series, the board of directors is required by the General Corporation Law of the State of Delaware (the “DGCL”), and our amended and restated certificate of incorporation to adopt resolutions and file a certificate of designation with the Secretary of State of the State of Delaware. The certificate of designation fixes for each class or series the designations, powers, preferences, rights, qualifications, limitations and restrictions, including dividend rights, conversion rights, redemption privileges and liquidation preferences.
All shares of preferred stock offered hereby.by this prospectus will, when issued, be fully paid and non-assessable and will not have any preemptive or similar rights. Our board of directors may authorize the issuance of preferred stock with voting or conversion rights that could adversely affect the voting power or other rights of the holders of the common stock. The Selling Stockholdersissuance of preferred stock, while providing flexibility in connection with possible acquisitions and other corporate purposes, could, among other things, have the effect of delaying, deferring or preventing a change in our control and may adversely affect the market price of the common stock and the voting and other rights of the holders of common stock.
We will paydescribe in a prospectus supplement relating to the class or series of preferred stock being offered the following terms:
•the title and stated value of the preferred stock;
•the number of shares of the preferred stock offered, the liquidation preference per share and the offering price of the preferred stock;
•the dividend rate(s), period(s) or payment date(s) or method(s) of calculation applicable to the preferred stock;
•whether dividends are cumulative or non-cumulative and, if cumulative, the date from which dividends on the preferred stock will accumulate;
•the procedures for any auction and remarketing, if any, for the preferred stock;
•the provisions for a sinking fund, if any, for the preferred stock;
•the provision for redemption, if applicable, of the preferred stock;
•any listing of the preferred stock on any securities exchange;
•the terms and conditions, if applicable, upon which the preferred stock will be convertible into common stock, including the conversion price or manner of calculation and conversion period;
•voting rights, if any, of the preferred stock;
•a discussion of any material or special U.S. federal income tax considerations applicable to the preferred stock;
•the relative ranking and preferences of the preferred stock as to dividend rights and rights upon the liquidation, dissolution or winding up of our affairs;
•any limitations on issuance of any class or series of preferred stock ranking senior to or on a parity with the class or series of preferred stock as to dividend rights and rights upon liquidation, dissolution or winding up of our affairs; and
•any other specific terms, preferences, rights, limitations or restrictions of the preferred stock.
Unless we specify otherwise in the applicable prospectus supplement, the preferred stock will rank, relating to dividends and upon our liquidation, dissolution or winding up:
•senior to all classes or series of our common stock and to all of our equity securities ranking junior to the preferred stock;
•on a parity with all of our equity securities the terms of which specifically provide that the equity securities rank on a parity with the preferred stock; and
•junior to all of our equity securities the terms of which specifically provide that the equity securities rank senior to the preferred stock.
The term equity securities does not include convertible debt securities.
Exclusive Forum
The Company’s certificate of incorporation requires, to the fullest extent permitted by law, that derivative actions brought in the name of the Company, actions against directors, officers and employees for breach of fiduciary duty and other similar actions may be brought only in the Court of Chancery in the State of Delaware. Although the Company believes this provision benefits the Company by providing increased consistency in the application of Delaware law in the types of lawsuits to which it applies, the provision may have the effect of discouraging lawsuits against the Company’s directors and officers.
Indemnification of Directors and Officers
Under the DGCL, a Delaware corporation may include in its certificate of incorporation a provision that, subject to the limitations described below, eliminates or limits the personal liability of a director to the corporation or its stockholders for monetary damages for breaches of fiduciary duty as a director. Such a provision may not eliminate or limit the liability of a director for (i) any breach of the duty of loyalty to the corporation or its stockholders, (ii) acts or omissions not in good faith or that involve intentional misconduct or a knowing violation of law, (iii) the willful or negligent payment of unlawful dividends or purchases or redemptions of shares of stock, or (iv) transactions from which such director derived an improper personal benefit.
The DGCL also provides that a Delaware corporation has the power to indemnify any person who is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding (whether civil, criminal, administrative or investigative) by reason of the fact that such person is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee of another entity, against reasonable expenses (including attorneys’ fees) and, in actions not brought by or in the right of the corporation, judgments, fines and amounts paid in settlement, in each case, actually and reasonably incurred in connection with such action, suit or proceeding, but only if such person acted in a manner reasonably believed to be in or not opposed to the best interests of the corporation and, with respect to any criminal action, had no reasonable cause to believe his or her conduct was unlawful, except that in any action brought by or
in the right of the corporation, such indemnification may not be made if such person is adjudged liable to the corporation (unless otherwise determined by the court in which such action, suit or proceeding was brought or the Delaware Court of Chancery). In addition, under Delaware law, to the extent that a present or former director or officer of a Delaware corporation has been successful on the merits or otherwise in defense of any action, suit or proceeding referred to above or any claim, issue or matter therein, he or she must be indemnified by the corporation against expenses (including attorneys’ fees) actually and reasonably incurred by it for certain out-of-pocket expenses incurredhim or her. Furthermore, under Delaware law, a Delaware corporation is permitted to maintain directors’ and officers’ insurance.
Our certificate of incorporation limits the liability of our directors to the fullest extent permitted by the DGCL, and our bylaws provide that we will indemnify them in disposingto the fullest extent permitted by such law. We have entered into indemnification agreements with our directors and executive officers.
Anti-Takeover Effects of Delaware Law and the Certificate of Incorporation and Bylaws
Delaware law and the Company’s certificate of incorporation and bylaws contain provisions that may prevent or discourage a third party from acquiring the Company, even if the acquisition would be beneficial to our stockholders.
Pursuant to the certificate of incorporation, our board of directors have the authority to create one or more series of preferred stock of the Company and to fix the designations and the powers, preferences and rights, if any, and the qualifications, limitations and restrictions, if any, of shares pursuantof such new series of preferred stock of the Company and to issue shares of such series without a stockholder vote, which could be used to dilute the ownership of a hostile acquirer.
Pursuant to the certificate of incorporation, our board of directors have the power to amend the bylaws of the Company, which may allow our board of directors to take certain actions to prevent an unsolicited takeover.
The Company is also subject to Delaware law prohibiting the Company from engaging in any “business combination” with an “interested stockholder” for a period of three years subsequent to the time that the stockholder became an interested stockholder unless:
•prior to such time, our board of directors approved either the business combination or the transaction in which the stockholder became an interested stockholder;
•upon completion of the transaction that resulted in the stockholder becoming an interested stockholder, the interested stockholder owns at least 85% of the outstanding voting stock (with certain exclusions); or
•at or after the person becomes an interested stockholder, the business combination is approved by our board of directors and authorized by a vote of at least 66 2/3% of the outstanding voting stock of the Company not owned by the interested stockholder.
For purposes of Delaware law, an “interested stockholder” generally is defined as an entity or person (other than the corporation and any direct or indirect majority-owned subsidiary of the corporation) directly or indirectly beneficially owning 15% or more of the outstanding voting stock of the corporation and any entity or person affiliated or associated with such entity or person.
For purposes of Delaware law, a “business combination” includes mergers, asset sales and other transactions resulting in financial benefit to a stockholder. This Delaware law could prohibit or delay mergers or other takeover or change of control attempts with respect to the Company and, accordingly, may discourage attempts that might result in a premium over the market price for the shares held by stockholders of the Company.
Transfer Agent and Registrar
The transfer agent and registrar for the Company’s common stock is American Stock Transfer & Trust Company, LLC.
DESCRIPTION OF DEBT SECURITIES
The following description, together with the additional information we include in any applicable prospectus supplement, summarizes certain general terms and provisions of the debt securities that we may offer under this prospectus. When we offer to sell a particular series of debt securities, we will describe the specific terms of the series in a supplement to this prospectus. We will bear allalso indicate in the prospectus supplement the extent to which the general terms and provisions described in this prospectus apply to a particular series of debt securities.
We may issue debt securities either separately, or together with, or upon the conversion or exercise of or in exchange for, other
costs, fees and expenses incurredsecurities described in
effecting the registration of the shares of our Common Stock offered hereby, including, without limitation, all registration fees, listing fees of the Nasdaq and fees and expenses of our counsel and our independent registered public accounting firm.SELLING STOCKHOLDERS
We are registering for resale an aggregate of 4,549,529 shares of our common stock thatthis prospectus. Debt securities may be sold by the Selling Stockholders, including 3,249,668 shares of our Common Stock that were soldsenior, senior subordinated or subordinated obligations and, issued by us to the Selling Stockholders pursuant to the Securities Purchase Agreement and 1,299,861 Warrant Shares issuable upon exercise of a Warrant issued to the Selling Stockholders pursuant to the Securities Purchase Agreement. The Warrant is exercisable at the option of the Selling Stockholders until February 12, 2026.
We are registering the offer and sale of the shares of Common Stock covered by this prospectus for sale by the Selling Stockholders pursuant to our obligations under the Registration Rights Agreement entered into in connection with the Securities Purchase Agreement.
No offer or sale under this prospectus may be made by a stockholder other than the Selling Stockholders named herein,unless otherwise specified in a supplement to this prospectus, the debt securities will be our direct, unsecured obligations and may be issued in one or more series.
The debt securities will be issued under an indenture between us and a trustee to be identified in the applicable prospectus supplement. We have summarized select portions of the indenture below. The summary is not complete. The form of the indenture has been filed as an exhibit to the registration statement of which this prospectus forms a part and you should read the indenture for provisions that may be important to you. In the summary below, we have included references to the section numbers of the indenture so that you can easily locate these provisions. Capitalized terms used in the summary and not defined herein have the meanings specified in the indenture.
As used in this section only, “Potbelly,” “we,” “our” or “us” refer to Potbelly Corporation, excluding its subsidiaries, unless expressly stated or the context otherwise requires.
General
The terms of each series of debt securities will be established by or pursuant to a resolution of our board of directors and set forth or determined in the manner provided in a resolution of our board of directors, in an officer’s certificate or by a supplemental indenture. The particular terms of each series of debt securities will be described in a prospectus supplement relating to such series (including any pricing supplement or term sheet).
We can issue an unlimited amount of debt securities under the indenture that may be in one or more series with the same or various maturities, at par, at a premium, or at a discount. We will set forth in a prospectus supplement (including any pricing supplement or term sheet) relating to any series of debt securities being offered, the aggregate principal amount and the following terms of the debt securities, if applicable:
•the title and ranking of the debt securities (including the terms of any subordination provisions);
•any limit on the aggregate principal amount of the debt securities;
•the date or dates on which the principal of and premium, if any, on the debt securities is payable and/or the method of determination thereof;
•the rate or rates (which may be fixed or variable) per annum or the method used to determine the rate or rates (including any commodity, commodity index, stock exchange index or financial index) at which the debt securities will bear interest, the date or dates from which interest will accrue, the date or dates on which interest will commence and be payable and any regular record date for the interest payable on any interest payment date;
•place or places where principal of, and interest, if any, on the debt securities will be payable (and the method of such payment), where the securities of such series may be surrendered for registration of transfer or exchange, and where notices and demands to us in respect of the debt securities may be delivered;
•the right, if any, to extend the interest payment periods and the duration of such extension;
•the period or periods within which, the price or prices at which and the terms and conditions upon which we may redeem the debt securities;
•the obligation, if any, of Potbelly to redeem or purchase debt securities of the series pursuant to any sinking fund or analogous provisions (including payments made in cash in participation of future sinking fund
obligations) or at the option of a holder thereof and the period or periods within which (or manner of determining the same), the price or prices at which (or manner of determining the same), and the terms and
•conditions upon which, debt securities of the series shall be redeemed or purchased, in whole or in part, pursuant to such obligation;
•the dates on which and the price or prices at which we will repurchase debt securities at the option of the holders of debt securities and other detailed terms and provisions of these repurchase obligations;
•the form of the debt securities of the series;
•the denominations in which the debt securities will be issued, if other than denominations of $1,000 and any integral multiple thereof;
•whether the debt securities will be issued in the form of certificated debt securities or global debt securities;
•the portion of principal amount of the debt securities payable upon declaration of acceleration of the maturity date, if other than the principal amount;
•if other than U.S. dollars, the currency in which the debt securities will be paid or denominated;
•if payments of principal of, premium or interest on the debt securities will be made in one or more currencies or currency units other than that or those in which the debt securities are denominated, the manner in which the exchange rate with respect to these payments will be determined;
•the manner in which the amounts of payment of principal of, premium, if any, or interest on the debt securities will be determined, if these amounts may be determined by reference to an amendmentindex based on a currency or currencies other than that in which the debt securities are denominated or designated to be payable or by reference to a commodity, commodity index, stock exchange index or financial index;
•any provisions relating to any security provided for the related registration statement that has become effective underdebt securities;
•any addition to, deletion of or change in the Securities Act. We may supplement or amendEvents of Default described in this prospectus to include additional Selling Stockholders upon request and upon provision of all required information to us.
The following table sets forth the name of the Selling Stockholders, the maximum number of shares of our Common Stock to be sold by the Selling Stockholders and the number of shares of our Common Stock beneficially owned by the Selling Stockholders.
We do not know when or in what amounts the Selling Stockholders may offer its shares of our Common Stock for sale, if at all. Because the Selling Stockholders may offer all, some or none of its shares pursuant to this prospectus, and because we are unaware of any agreements, arrangements or understandingindenture with respect to the saledebt securities and any change in the acceleration provisions described in this prospectus or in the indenture with respect to the debt securities;
•any addition to, deletion of or change in the covenants described in this prospectus or in the indenture with respect to the debt securities;
•the provisions, if any, relating to conversion or exchange of any securities of such shares, no definitive estimate can be providedseries, including if applicable, the conversion or exchange price and period, provisions as to the number of shares thatwhether conversion or exchange will be held,mandatory, the events requiring an adjustment of the conversion or percentageexchange price and provisions affecting conversion or exchange;
•if other than the trustee, the identity of shares beneficially owned, by the Selling Stockholders after completiontrustee, the registrar, paying agent and custodian for the depositary; and
•any other terms of the debt securities, which may supplement, modify or delete any provision of the indenture as it applies to that series, including any terms that may be required under applicable law or regulations or advisable in connection with the marketing of the securities.
We may issue debt securities that provide for an amount less than their stated principal amount to be due and payable upon declaration of acceleration of their maturity pursuant to the terms of the indenture. We will provide you with information on the federal income tax considerations and other special considerations applicable to any of these debt securities in the applicable prospectus supplement.
If we denominate the purchase price of any
offerings pursuant to this prospectus. For purposes of the
table below,debt securities in a foreign currency or currencies or a foreign currency unit or units, or if the
principal of and any premium and interest on any series of debt securities is payable in a foreign currency or currencies or a foreign currency unit or units, we will provide you with information
regarding shareson the restrictions, elections, general tax considerations, specific terms and other information with respect to that issue of
Common Stock owned after the offering assumes the sale of all shares offered by the Selling Stockholdersdebt securities and
that the Selling Stockholders does not dispose ofsuch foreign currency or
acquire any additional shares.The informationcurrencies or foreign currency unit or units in the applicable prospectus supplement.
Transfer and Exchange
Each debt security will be represented by either one or more global securities registered in the name of The Depository Trust Company, or the Depositary, or a nominee of the Depositary (we will refer to any debt security represented by a global debt security as a “book-entry debt security”), or a certificate issued in definitive registered form (we will refer to any debt security represented by a certificated security as a “certificated debt security”) as set
forth in the applicable prospectus supplement. Except as set forth under the heading “Global Debt Securities and Book-Entry System” below, table is basedbook-entry debt securities will not be issuable in certificated form.
Certificated Debt Securities. You may transfer or exchange certificated debt securities at any office we maintain for this purpose in accordance with the terms of the indenture. No service charge will be made for any transfer or exchange of certificated debt securities, but we may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection with a transfer or exchange.
You may effect the transfer of certificated debt securities and the right to receive the principal of, premium and interest on information providedcertificated debt securities only by surrendering the certificate representing those certificated debt securities and either reissuance by us or the trustee of the certificate to the new holder or the issuance by us or the trustee of a new certificate to the new holder.
Global Debt Securities and Book-Entry System. Each global debt security representing book-entry debt securities will be deposited with, or on behalf of, the Selling StockholdersDepositary, and registered in the name of the Depositary or a nominee of the Depositary.
Covenants
We will set forth in the applicable prospectus supplement any restrictive covenants applicable to any issue of debt securities.
No Protection In the Event of a Change of Control
Unless we state otherwise in the applicable prospectus supplement, the debt securities will not contain any provisions which may afford holders of the debt securities protection in the event we have a change in control or in the event of a highly leveraged transaction (whether or not such transaction results in a change in control) which could adversely affect holders of debt securities.
Consolidation, Merger and Sale of Assets
We may not consolidate with or merge with or into, or convey, transfer or lease all or substantially all of our properties and assets to any person (a “successor person”) unless:
•we are the surviving corporation or the successor person (if other than us) is a corporation organized and validly existing under the laws of any U.S. domestic jurisdiction and expressly assumes our obligations on the debt securities and under the indenture; and
•immediately after giving effect to the transaction, no Default or Event of Default, shall have occurred and be continuing.
Notwithstanding the above, any of our subsidiaries may consolidate with, merge into or transfer all or part of its properties to us.
Events of Default
“Event of Default” means with respect to any series of debt securities, any of the following:
•default in the payment of any interest upon any debt security of that series when it becomes due and payable, and continuance of that default for a period of 30 days (unless the entire amount of the payment is deposited by us with the trustee or with a paying agent prior to the expiration of the 30-day period);
•default in the payment of principal of any debt security of that series at its maturity;
•default in the performance or breach of any other covenant or warranty by us in the indenture (other than a covenant or warranty that has been included in the indenture solely for the benefit of a series of debt securities other than that series), which default continues uncured for a period of 60 days after we receive
written notice from the trustee or Potbelly and the trustee receive written notice from the holders of not less than 25% in principal amount of the outstanding debt securities of that series as provided in the indenture;
•certain voluntary or involuntary events of bankruptcy, insolvency or reorganization of Potbelly; or
•any other Event of Default provided with respect to debt securities of that series that is described in the applicable prospectus supplement.
No Event of Default with respect to a particular series of debt securities (except as to certain events of bankruptcy, insolvency or reorganization) necessarily constitutes an Event of Default with respect to any other series of debt securities. The occurrence of certain Events of Default or an acceleration under the indenture may constitute an event of default under certain of our indebtedness or that of our subsidiaries outstanding from time to time.
If an Event of Default with respect to debt securities of any series at the time outstanding occurs and is continuing, then the trustee or the holders of not less than 25% in principal amount of the outstanding debt securities of that series may, by a notice in writing to us (and to the trustee if given by the holders), declare to be due and payable immediately the principal of (or, if the debt securities of that series are discount securities, that portion of the principal amount as may be specified in the terms of that series) and accrued and unpaid interest, if any, on all debt securities of that series. Such acceleration will not be effective until the earlier of (1) the acceleration of indebtedness under our senior secured credit facilities or (2) five business Days after receipt by us of written notice of such acceleration, at which time the principal, premium, if any, interest and any other monetary obligations on all the then outstanding series of debt securities will become due and payable immediately. In the case of an Event of Default resulting from certain events of bankruptcy, insolvency or reorganization, the principal (or such specified amount) of and accrued and unpaid interest, if any, on all outstanding debt securities will become and be immediately due and payable without any declaration or other act on the part of the trustee or any holder of outstanding debt securities. At any time after a declaration of acceleration with respect to debt securities of any series has been made, but before a judgment or decree for payment of the money due has been obtained by the trustee, the holders of a majority in principal amount of the outstanding debt securities of that series may rescind and annul the acceleration if all Events of Default, other than the non-payment of accelerated principal and interest, if any, with respect to debt securities of that series, have been cured or waived as provided in the indenture. We refer you to the prospectus supplement relating to any series of debt securities that are discount securities for the particular provisions relating to acceleration of a portion of the principal amount of such discount securities upon the occurrence of an Event of Default.
The indenture provides that the trustee will be under no obligation to exercise any of its rights or powers under the indenture unless the trustee receives indemnity satisfactory to it against any cost, liability or expense which might be incurred by it in exercising such right of power. Subject to certain rights of the trustee, the holders of a majority in principal amount of the outstanding debt securities of any series will have the right to direct the time, method and place of conducting any proceeding for any remedy available to the trustee or exercising any trust or power conferred on the trustee with respect to the debt securities of that series.
No holder of any debt security of any series will have any right to institute any proceeding, judicial or otherwise, with respect to the indenture or for the appointment of a receiver or trustee, or for any remedy under the indenture, unless:
•that holder has previously given to the trustee written notice of a continuing Event of Default with respect to debt securities of that series; and
•the holders of not less than 25% in principal amount of the outstanding debt securities of that series have made written request, and offered reasonable indemnity or security, to the trustee to institute the proceeding as trustee, and the trustee has not received from the holders of not less than a majority in principal amount of the outstanding debt securities of that series a direction inconsistent with that request and has failed to institute the proceeding within 60 days.
Notwithstanding any other provision in the indenture, the holder of any debt security will have an absolute and unconditional right to receive payment of the principal of, premium and any interest on that debt security on or after the due dates expressed in that debt security and to institute suit for the enforcement of payment.
The indenture requires us, within 120 days after the end of our fiscal year, to furnish to the trustee a statement as to compliance with the indenture. If a Default or Event of Default occurs and is continuing with respect to the debt securities of any series and if it is known to a responsible officer of the trustee, the trustee shall mail to each holder of the debt securities of that series notice of a Default or Event of Default within 90 days after it occurs. The indenture provides that the trustee may withhold notice to the holders of debt securities of any series of any Default or Event of Default (except in payment on any debt securities of that series) with respect to debt securities of that series if the trustee determines in good faith that withholding notice is in the interest of the holders of those debt securities.
Modification and Waiver
We and the trustee may modify and amend the indenture or the debt securities of any series without the consent of any holder of any debt security:
•to cure any ambiguity, defect or inconsistency;
•to comply with covenants in the indenture described above under the heading “Consolidation, Merger and Sale of Assets;”
•to provide for uncertificated securities in addition to or in place of certificated securities;
•to make any change that does not adversely affect the rights of any holder of debt securities;
•to provide for the issuance of and establish the form and terms and conditions of debt securities of any series as permitted by the indenture;
•to add covenants for the benefit of the holders or to surrender any right or power conferred upon Potbelly;
•to effect the appointment of a successor trustee with respect to the debt securities of any series and to add to or change any of the provisions of the indenture to provide for or facilitate administration by more than one trustee; or
•to comply with requirements of the SEC in order to effect or maintain the qualification of the indenture under the Trust Indenture Act of 1939, as amended.
We may also modify and amend the indenture with the consent of the holders of at least a majority in principal amount of the outstanding debt securities of each series affected by the modifications or amendments.
We may not make any modification or amendment without the consent of the holders of each affected debt security then outstanding if that amendment will:
•reduce the amount of debt securities whose holders must consent to an amendment, supplement or waiver;
•reduce the rate of or extend the time for payment of interest (including default interest) on any debt security;
•reduce the principal of or premium on or change the fixed maturity of any debt security or reduce the amount of, or postpone the date fixed for, the payment of any sinking fund or analogous obligation with respect to any series of debt securities;
•reduce the principal amount of discount securities payable upon acceleration of maturity;
•waive a default in the payment of the principal of, premium or interest on any debt security (except a rescission of acceleration of the debt securities of any series by the holders of at least a majority in aggregate principal amount of the then outstanding debt securities of that series and a waiver of the payment default that resulted from such acceleration);
•make the principal of or premium or interest on any debt security payable in currency other than that stated in the debt security;
•make any change to certain provisions of the indenture relating to, among other things, the right of holders of debt securities to receive payment of the principal of, premium and interest on those debt securities and to institute suit for the enforcement of any such payment and to waivers or amendments; and
•waive a redemption payment with respect to any debt security.
Except for certain specified provisions, the holders of at least a majority in principal amount of the outstanding debt securities of any series may on behalf of the holders of all debt securities of that series waive our
compliance with provisions of the indenture. The holders of a majority in principal amount of the outstanding debt securities of any series may on behalf of the holders of all the debt securities of such series waive any past default under the indenture with respect to that series and its consequences, except a default in the payment of the principal of, premium or any interest on any debt security of that series; provided, however, that the holders of a majority in principal amount of the outstanding debt securities of any series may rescind an acceleration and its consequences, including any related payment default that resulted from the acceleration.
Defeasance of Debt Securities and Certain Covenants in Certain Circumstances
Legal Defeasance. The indenture provides that, unless otherwise provided by the terms of the applicable series of debt securities, we may be discharged from any and all obligations in respect of the debt securities of any series (subject to certain exceptions). We will be so discharged upon the deposit with the trustee, in trust, of money and/or U.S. government obligations or, in the case of debt securities denominated in a Selling Stockholders questionnaire and is assingle currency other than U.S. Dollars, government obligations of the date specifiedgovernment that issued or caused to be issued such currency, that, through the payment of interest and principal in accordance with their terms, will provide money in an amount sufficient in the opinion of a nationally recognized firm of independent public accountants or investment bank to pay and discharge each installment of principal, premium and interest on and any mandatory sinking fund payments in respect of the debt securities of that series on the stated maturity of those payments in accordance with the terms of the indenture and those debt securities.
This discharge may occur only if, among other things, we have delivered to the trustee an opinion of counsel stating that we have received from, or there has been published by, the Selling StockholdersUnited States Internal Revenue Service a ruling or, since the date of execution of the indenture, there has been a change in the applicable United States federal income tax law, in either case to the effect that, and based thereon such questionnaire. opinion shall confirm that, the holders of the debt securities of that series will not recognize income, gain or loss for United States federal income tax purposes as a result of the deposit, defeasance and discharge and will be subject to United States federal income tax on the same amounts and in the same manner and at the same times as would have been the case if the deposit, defeasance and discharge had not occurred.
Defeasance of Certain Covenants. The indenture provides that, unless otherwise provided by the terms of the applicable series of debt securities, upon compliance with certain conditions:
•we may omit to comply with the covenant described under the heading “Consolidation, Merger and Sale of Assets” and certain other covenants set forth in the indenture, as well as any additional covenants which may be set forth in the applicable prospectus supplement; and
•any omission to comply with those covenants will not constitute a Default or an Event of Default with respect to the debt securities of that series (“covenant defeasance”).
The conditions include:
•depositing with the trustee money and/or U.S. government obligations or, in the case of debt securities denominated in a single currency other than U.S. Dollars, government obligations of the government that issued or caused to be issued such currency, that, through the payment of interest and principal in accordance with their terms, will provide money in an amount sufficient in the opinion of a nationally recognized firm of independent public accountants or investment bank to pay and discharge each installment of principal of, premium and interest on and any mandatory sinking fund payments in respect of the debt securities of that series on the stated maturity of those payments in accordance with the terms of the indenture and those debt securities; and
•delivering to the trustee an opinion of counsel to the effect that the holders of the debt securities of that series will not recognize income, gain or loss for United States federal income tax purposes as a result of the deposit and related covenant defeasance and will be subject to United States federal income tax on the same amounts and in the same manner and at the same times as would have been the case if the deposit and related covenant defeasance had not occurred.
Covenant Defeasance and Events of Default. In the event we exercise our option to effect covenant defeasance with respect to any series of debt securities and the debt securities of that series are declared due and payable because of the occurrence of any Event of Default, the amount of money and/or U.S. government obligations or foreign government obligations on deposit with the trustee will be sufficient to pay amounts due on the debt securities of that series at the time of their stated maturity but may not be sufficient to pay amounts due on the debt securities of that series at the time of the acceleration resulting from the Event of Default. However, we shall remain liable for those payments.
Governing Law
The indenture and the debt securities will be governed by, and construed in accordance with, the laws of the State of New York without regard to conflict of law principles that would result in the application of any law other than the law of the State of New York.
DESCRIPTION OF WARRANTS
We havemay issue warrants, including warrants to purchase common stock, preferred stock or debt securities or any combination of the foregoing. Warrants may be issued independently or as part of a unit with any other securities and may be attached to or separate from the underlying securities. We may issue warrants directly or under a warrant agreement to be entered into between us and a warrant agent, as detailed in the prospectus supplement relating to warrants being offered. Any warrant agent will act solely as our agent in connection with the warrants of a particular series and will not soughtassume any obligation or relationship of agency or trust for or with any holders or beneficial owners of warrants.
A prospectus supplement relating to verifyany warrants being offered will include specific terms relating to the offering, including a description of any other securities sold together with the warrants. These items will include:
•the title of the warrants;
•the aggregate number of the warrants;
•the price or prices at which the warrants will be issued;
•the designation, amount and terms of the common stock, preferred stock or debt securities purchasable upon exercise of the warrants and procedures by which those numbers may be adjusted;
•the designation and terms of the other offered securities, if any, with which the warrants are issued and the number of the warrants issued with each security;
•if applicable, the date on and after which the warrants and the offered securities purchasable upon exercise of the warrants will be separately transferable;
•the price or prices at which the offered securities purchasable upon exercise of the warrants may be purchased;
•the date on which the right to exercise the warrants shall commence and the date on which the right shall expire;
•the minimum or maximum amount of the warrants that may be exercised at any one time;
•the effect of any merger, consolidation, sale or other disposition of our business on the warrant agreement and the warrants;
•any terms relating to the modification of the warrants;
•the terms of any rights to redeem or call the warrants;
•information with respect to book-entry procedures, if any;
•discussion of any material federal income tax considerations; and
•any other material terms of the warrants, including terms, procedures and limitations relating to the transferability, exchange, exercise or redemption of the warrants.
The descriptions of the warrants in this prospectus and in any prospectus supplement are summaries of the applicable provisions of the applicable agreements. These descriptions do not restate those agreements in their entirety and do not contain all of the information that you may find useful. We urge you to read the applicable agreements because they, and not the summaries, define your rights as holders of the warrants or any warrant units.
For more information, please review the form of the relevant agreements, which will be filed with the SEC promptly after the offering of the warrants or warrant units and will be available as described under the heading “Where You Can Find More Information.”
DESCRIPTION OF UNITS
We may issue units consisting of one or more debt securities, shares of preferred stock, or shares of common stock, or any combination of such information. Additionally, the Selling Stockholdersof our securities, as specified in a related prospectus supplement.
PLAN OF DISTRIBUTION
We may
have sold from time to time offer and/or
transferredsell some or all of
its shares in exempt or non-exempt transactions since the
date ofsecurities covered by this prospectus.
Other information about the Selling Stockholders may also change over time. Any changed informationRegistration of securities covered by this prospectus does not mean, however, that those securities necessarily will be
set forthoffered or sold. We may sell the securities in
supplements to this prospectus, if required. | | | | | | | | | | | | | | | | | | | | |
| | | Prior to the Offering | | | | | | After the Offering | |
Name of Selling Stockholders | | Aggregate
Number of
Shares of
Common
Stock
Beneficially
Owned(1) | | | Percent of
Shares of
Common
Stock
Outstanding
(2) | | | Number of
Shares of
Common
Stock
Being
Registered
for Resale | | | Number of
Shares of
Common
Stock
Beneficially
Owned | | | Percent of
Shares of
Common
Stock
Outstanding
(2) | |
180 Degree Capital Corp.(3) | | | 2,283,777 | | | | 8.2 | % | | | 512,944 | | | | 1,917,388 | | | | 6.6 | % |
Agman Investments LLC (4) | | | 2,587,696 | | | | 9.3 | | | | 313,465 | | | | 2,363,792 | | | | 8.1 | |
Ancora Catalyst Institutional LP(5)` | | | 1,624,762 | | | | 5.8 | | | | 157,808 | | | | 1,258,373 | | | | 4.3 | |
Ancora Catalyst LP (5) | | | 1,624,762 | | | | 5.8 | | | | 13,155 | | | | 1,258,373 | | | | 4.3 | |
Ancora Merlin Institutional LP (5) | | | 1,624,762 | | | | 5.8 | | | | 315,308 | | | | 1,258,373 | | | | 4.3 | |
Ancora Merlin LP (5) | | | 1,624,762 | | | | 5.8 | | | | 26,673 | | | | 1,258,373 | | | | 4.3 | |
Armistice Capital Master Fund Ltd.(6) | | | 407,099 | | | | 1.5 | | | | 569,938 | | | | — | | | | — | |
Blue Opportunity Fund, LP (7) | | | 43,763 | | | | * | | | | 35,429 | | | | — | | | | — | |
Chain of Lakes Investment Fund, LLC (8) | | | 1,467,057 | | | | 5.2 | | | | 270,720 | | | | 1,273,685 | | | | 4.4 | |
Hudson Bay Master Fund Ltd.(9) | | | 1,017,749 | | | | 3.6 | | | | 1,424,848 | | | | — | | | | — | |
Intrinsic Investment Holdings, LLC (10) | | | 920,362 | | | | 3.3 | | | | 569,938 | | | | 513,263 | | | | 1.8 | |
Maze Focus Fund, LP (7) | | | 43,763 | | | | * | | | | 25,839 | | | | — | | | | — | |
Punch Nano Cap Partners I, LLC (11) | | | 193,372 | | | | * | | | | 270,720 | | | | — | | | | — | |
Steven J. Schuster (12) | | | 228,971 | | | | * | | | | 42,744 | | | | 198,439 | | | | | * |
(1) | Does not include Warrant Shares issuable upon exercise of Warrants as the Warrants are not exercisable until August 13, 2021.
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(2) | Based on 27,951,077 shares of Common Stock outstanding as of February 24, 2021. As the Warrants are not exercisable until August 13, 2021, the Warrant Shares are not assumed to be issued in calculating the percentage ownership prior to the offering but are assumed to be outstanding after offering.
|
(3) | Number of shares of Common Stock being registered for resale includes 201,514 Shares of Common Stock purchased by 180 Degree Capital Corp. pursuant to the Securities Purchase Agreement and 80,605 Warrant Shares issuable to 180 Degree Capital Corp. upon exercise of Warrants and 164,875 shares of Common Stock purchased by a separate account managed by 180 Degree Capital Corp. pursuant to the Securities Purchase Agreement and 65,950 Warrant Shares issuable to the separate account upon exercise of Warrants. Because 180 Degree Capital Corp. manages the separate account, the amounts set forth in the table represent the aggregate amount beneficially owned by both 180 Degree Capital Corp. and the separate account. 180 Degree Capital Corp. may be deemed to be an affiliate of a broker-dealer, but is not itself a broker-dealer. The securities identified in the table above for 180 Degree Capital Corp. were acquired in the ordinary course of business and at the time of acquisition, 180 Degree Capital Corp. had no agreement or understanding, directly or indirectly, with any person to distribute the securities. The address of 180 Degree Capital Corp. is 7 N. Willow Street, Suite 4B, Montclair, NJ 07042.
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(4) | Number of shares of Common Stock being registered for resale includes 223,904 shares of Common Stock purchased by Agman Investments LLC pursuant to the Securities Purchase Agreement and 89,561 Warrant Shares issuable to Agman Investments LLC upon exercise of Warrants. The securities are directly held by Agman Investments LLC and may be deemed to be indirectly beneficially owned by Howard Scott Silverman, as the Managing Member of Agman Investments LLC. The address of Agman Investments LLC is 10 E. Ohio St., Second Floor, Chicago, IL 60611.
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(5) | Number of shares of Common Stock being registered for resale includes (i) 112,720 shares of Common Stock purchased by Ancora Catalyst Institutional LP pursuant to the Securities Purchase Agreement and 45,088 Warrant Shares issuable to Ancora Catalyst Institutional LP upon exercise of Warrants, (ii) 9,397 shares of Common Stock purchased by Ancora Catalyst LP pursuant to the Securities Purchase Agreement and 3,758 Warrant Shares issuable to Ancora Catalyst LP upon exercise of Warrants, (iii) 225,220 shares of Common Stock purchased by Ancora Merlin Institutional LP pursuant to the Securities Purchase Agreement and 90,088 Warrant Shares issuable to Ancora Merlin Institutional LP upon exercise of Warrants and (iv) 19,052 shares of Common Stock purchased by Ancora Merlin LP pursuant to the Securities Purchase Agreement and 7,621 Warrant Shares issuable to Ancora Catalyst LP upon exercise of Warrants. Ancora Catalyst Institutional, LP, Ancora Catalyst, LP, Ancora Merlin Institutional, LP and Ancora Merlin, LP (collectively, the “Ancora Funds”) are controlled by Ancora Holdings Inc., the parent company of investment advisors to the Ancora Funds. As a result, any shares beneficially owned by any of the Ancora Funds may be deemed beneficially owned by the other Ancora Funds and the amounts set forth in the table for each Ancora Fund represent the aggregate amount beneficially owned by all Ancora Funds. The Ancora Funds may be deemed to be affiliates of a broker-dealer, but are not themselves broker-dealers. The securities identified in the table above for the Ancora Funds were acquired in the ordinary course of business and at the time of acquisition, and the Ancora Funds had no agreement or understanding, directly or indirectly, with any person to distribute the securities. The address of Ancora Holdings, Inc. is c/o Ancora Advisors, LLC, 6060 Parkland Boulevard, Suite 200, Cleveland, Ohio 44124.
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(6) | Number of shares of Common Stock being registered for resale includes 407,099 shares of Common Stock purchased by Armistice Capital Master Fund Ltd. pursuant to the Securities Purchase Agreement and 162,839 Warrant Shares issuable to Armistice Capital Master Fund Ltd. upon exercise of Warrants. The securities are directly held by Armistice Capital Master Fund Ltd., a Cayman Islands exempted company (the “Master Fund”), and may be deemed to be indirectly beneficially owned by: (i) Armistice Capital, LLC (“Armistice Capital”), as the investment manager of the Master Fund; and (ii) Steven Boyd, as the Managing Member of Armistice Capital. The address of Armistice Capital Master Fund Ltd. is c/o Armistice Capital, LLC is 510 Madison Avenue, 7th Floor, New York, NY 10022.
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(7) | Number of shares of Common Stock being registered for resale includes 25,306 Shares of Common Stock purchased by Blue Opportunity Fund, LP pursuant to the Securities Purchase Agreement and 10,123 Warrant Shares issuable to Blue Opportunity Fund, LP upon exercise of Warrants and 18,457 shares of Common Stock purchased by Maze Focus Fund pursuant to the Securities Purchase Agreement and 7,382 Warrant Shares issuable to Maze Focus Fund upon exercise of Warrants. Maze Investments is the investment advisor to both Blue Opportunity Fund LP and Maze Focus Fund LP. As a result, any shares beneficially owned by either of such Selling Stockholders may be deemed beneficially owned by the other and the amounts set forth in the table for each Selling Stockholder represent the aggregate amount beneficially owned by both Selling Stockholders. In addition, Adam Z. Epstein, the managing member of Maze Investments, may be deemed to indirectly beneficially own the securities owned by Blue Opportunity Fund, LP and Maze Focus Fund, LP. The address of Blue Opportunity Fund, LP and Maze Focus Fund, LP is c/o Maze Investments, 12100 Wilshire Boulevard, Suite 620, Los Angeles, California 90025.
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(8) | Number of shares of Common Stock being registered for resale includes 193,372 Shares of Common Stock purchased by Chain of Lakes Investment Fund, LLC pursuant to the Securities Purchase Agreement and 77,348 Warrant Shares issuable to Chain of Lakes Investment Fund, LLC upon exercise of Warrants. The securities are directly held by Chain of Lakes Investment Fund, LLC and may be deemed to be indirectly beneficially owned by Christopher B. Woodruff, as the president of Chain of Lakes Investment Fund, LLC. The address of Chain of Lakes Investment Fund, LLC is Chain of Lakes Investment Fund, LLC, 8101 34th Avenue South, Suite 400, Bloomington, MN 55425
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(9) | Number of shares of Common Stock being registered for resale includes 1,017,729 shares of Common Stock purchased by Hudson Bay Master Fund Ltd. pursuant to the Securities Purchase Agreement and 407,099 Warrant Shares issuable to Hudson Bay Master Fund Ltd. upon exercise of Warrants. Hudson Bay Capital Management LP, the investment manager of Hudson Bay Master Fund Ltd., has voting and investment power over these securities. Sander Gerber is the managing member of Hudson Bay Capital GP LLC, which is the general partner of Hudson Bay Capital Management LP. Each of Hudson Bay Master Fund Ltd. and Sander Gerber disclaims beneficial ownership over these securities The address of Hudson Bay Master Fund Ltd. is c/o Hudson Bay Capital Management LP, 777 Third Ave, 30th Floor, New York, NY 10017.
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(10) | Number of shares of Common Stock being registered for resale includes 407,099 shares of Common Stock purchased by Intrinsic Investment Holdings, LLC pursuant to the Securities Purchase Agreement and 162,839 Warrant Shares issuable to Intrinsic Investment Holdings, LLC upon exercise of Warrants. The address of Intrinsic Investment Holdings, LLC is 220 Green Street, Chicago, Illinois 60607.
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(11) | Number of shares of Common Stock being registered for resale includes 193,372 shares of Common Stock purchased by Punch Nano Cap Partners I, LLC pursuant to the Securities Purchase Agreement and 77,348 Warrant Shares issuable to Punch Nano Cap Partners I, LLC upon exercise of Warrants. The securities are directly held by Punch Nano Cap Partners I, LLC and may be deemed to be indirectly beneficially owned by Howard D. Punch, Jr., as the managing member of Punch Nano Cap Partners I, LLC. The address of Punch Nano Cap Partners I, LLC is 7701 France Ave. So. #300, Edina, MN 55435.
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(12) | Number of shares of Common Stock being registered for resale includes 30,532 shares of Common Stock purchased by Mr. Schuster pursuant to the Securities Purchase Agreement and 12,212 Warrant Shares issuable to Mr. Schuster upon exercise of Warrants. The address of Mr. Schuster is 400 East 57th Street, New York, New York 10022.
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PLAN OF DISTRIBUTION
We are registering the shares of Common Stock (i) issued to the Selling Stockholders and (ii) issuable upon conversion of the Warrants issued to the Selling Stockholders to permit the resale of these shares of Common Stock by the holders of the shares of Common Stock and the Warrantsthree ways (or in any combination) from time to time after the date of this prospectus. We will not receive any of the proceeds from the sale by the Selling Stockholders of the shares of Common Stock. We will bear all fees and expenses incident time:
•to our obligation to register the shares of Common Stock.
The Selling Stockholders may sell all or a portion of the shares of Common Stock beneficially owned by them and offered hereby from time to time directly or through one or more underwriters, broker-dealers or agents. If the shares of Common Stock are sold through underwriters or broker- dealers for resale;
•directly to a limited number of purchasers or to a single purchaser; or
•through agents.
The applicable prospectus supplement will set forth the Selling Stockholders will be responsible for underwritingterms of the offering of such securities, including:
•the name or names of any underwriters, dealers or agents and the amounts of shares underwritten or purchased by each of them;
•the public offering price of the securities;
•the net proceeds to us;
•any discounts, or commissions or agent’s commissions. The shares of Common Stock may be sold on concessions or other compensation allowed or reallowed or paid to underwriters, dealers or agents; and
•any national securities exchange or quotation servicemarket on which the securities may beare listed or quoted atto which application will be made to list the timesecurities.
We may designate agents to solicit purchases for the period of sale, intheir appointment and to sell securities on a continuing basis, including pursuant to “at the over-the-countermarket offerings.”
We may offer these securities to the public through underwriting syndicates represented by managing underwriters or
in transactions otherwise than on these exchanges or systems or inthrough underwriters without a syndicate. If underwriters are used, the
over-the-counter market andsecurities will be acquired by the underwriters for their own account. The underwriters may resell the securities in one or more transactions,
including negotiated transactions at
a fixed
prices, at prevailing market prices at the time of the sale,public offering price or at varying prices determined at the time of
sale, or at negotiated prices. These sales may be effectedsale. Unless otherwise indicated in
transactions, which may involve crosses or block transactions. The Selling Stockholders may use any one or morethe related prospectus supplement, the obligations of the
following methods when selling shares:ordinary brokerage transactionsunderwriters to purchase the securities will be subject to customary conditions precedent and transactions in which the broker-dealer solicits purchasers;
block trades in whichunderwriters will be obligated to purchase all the broker-dealer will attempt to sell the shares as agent but may position and resell a portionsecurities offered if any of the block as principal to facilitate the transaction;
purchases by a broker-dealer as principal and resale by the broker-dealer for its account;
an exchange distribution in accordance with the rules of the applicable exchange;
privately negotiated transactions;
settlement of short sales entered into after the effective date of the registration statement of which this prospectus is a part;
broker-dealerssecurities are purchased. Underwriters may agree with the Selling Stockholders to sell a specified number of such shares at a stipulated price per share;
through the writing or settlement of options or other hedging transactions, whether such options are listed on an options exchange or otherwise;
a combination of any such methods of sale; and
any other method permitted pursuant to applicable law.
The Selling Stockholders also may resell all or a portion of the shares in open market transactions in reliance upon Rule 144 under the Securities Act of 1933, as amended, or the Securities Act, as permitted by that rule, or Section 4(a)(1) under the Securities Act, if available, rather than under this prospectus, provided that they meet the criteria and conform to the requirements of those provisions.
Broker-dealers engaged by the Selling Stockholders may arrange for other broker-dealers to participate in sales. If the Selling Stockholders effect such transactions by selling shares of Common Stocksecurities to or through underwriters, broker-dealers or agents, such underwriters, broker- dealers, or agentsand the dealers may receive commissionscompensation in the form of discounts, concessions or commissions from the Selling Stockholders underwriters and/or commissions from purchasers of the shares of Common Stockpurchasers for whom they may act as agentagent. Any public offering price and any discounts or concessions allowed or re-allowed or paid to whom theydealers may sell as principal. Such commissions will be in amountschanged from time to be negotiated, but, except as set forth in a supplement to this Prospectus, in the case of an agency transaction will not be in excess of a customary brokerage commission in compliance with FINRA Rule 2121;time.
Underwriters and
in the case of a principal transaction a markup or markdown in compliance with FINRA Rule 2121.01.In connection with sales of the shares of Common Stock or otherwise, the Selling Stockholders may enter into hedging transactions with broker-dealers or other financial institutions, which may in turn engage in short sales of the shares of Common Stock in the course of hedging in positions they assume. The Selling Stockholders may also sell shares of Common Stock short and if such short sale shall take place after the date that this registration statement is declared effective by the Commission, the Selling Stockholders may deliver shares of Common Stock covered by this prospectus to close out short positions and to return borrowed shares in connection with such short sales. The Selling Stockholders may also loan or pledge shares of Common Stock to broker-dealers that in turn may sell such shares, to the extent permitted by applicable law. The Selling Stockholders may also enter into option or other transactions with broker-dealers or other financial institutions or the creation of one or more derivative securities which require the delivery to such broker-dealer or other financial institution of shares offered by this prospectus, which shares such broker-dealer or other financial institution may resell pursuant to this prospectus (as supplemented or amended to reflect such transaction). Notwithstanding the foregoing, the Selling Stockholders have been advised that they may not use shares registered on this registration statement to cover short sales of our common stock made prior to the date the registration statement, of which this prospectus forms a part, has been declared effective by the Securities and Exchange Commission.
The Selling Stockholdersagents may from time to time pledge or grant a security interest in some or all of the shares of Common Stock or the Warrants owned by them and, if they default in the performance of their secured obligations, the pledgees or secured parties may offerpurchase and sell the shares of Common Stock fromsecurities described in this prospectus and the relevant prospectus supplement in the secondary market, but are not obligated to do so. No assurance can be given that there will be a secondary market for the securities or liquidity in the secondary market if one develops. From time to time, pursuantunderwriters and agents may make a market in the securities.
In order to
this prospectusfacilitate the offering of the securities, the underwriters may engage in transactions that stabilize, maintain or otherwise affect the price of these securities or any
amendmentother securities the prices of which may be used to
this prospectus under Rule 424(b)(3)determine payments on these securities. Specifically, the underwriters may over-allot in connection with the offering, creating a short position in the securities for their own accounts. In addition, to cover over-allotments or
other applicable provisionto stabilize the price of the
Securities Act, amending, if necessary,securities or of any other securities, the
list of Selling Stockholders to includeunderwriters may bid for, and purchase, the
pledgees, transfereessecurities or
any other
successors in interest as Selling Stockholders under this prospectus. The Selling Stockholders also may transfer and donate the shares of Common Stock in other circumstances in which case the transferees, donees, pledgees or other successors in interest will be the selling beneficial owners for purposes of this prospectus.The Selling Stockholders and any broker-dealer or agent participatingsecurities in the distributionopen market. Finally, in any offering of the sharessecurities through a syndicate of Common Stock
underwriters, the underwriting syndicate may reclaim selling concessions allowed to an underwriter or a dealer for distributing the securities in the offering, if the syndicate repurchases previously distributed securities in transactions to cover syndicate short positions, in stabilization transactions or otherwise. Any of these activities may stabilize or maintain the market price of the securities above independent market levels. The underwriters are not required to engage in these activities, and may end any of these activities at any time.
Underwriters named in a prospectus supplement are, and dealers and agents named in a prospectus supplement may be, deemed to be “underwriters” within the meaning of
Section 2(a)(11) of the Securities Act in connection with
such sales. In such event, any commissions paid, orthe securities offered thereby, and any discounts or
concessions allowed to, any such broker-dealer or agentcommissions they receive from us and any profit on
thetheir resale of the
shares purchased by themsecurities may be deemed to be underwriting
discounts and commissions
or discounts under the Securities Act.
Selling stockholders who are “underwriters” within the meaning of Section 2(a)(11) of the Securities Act will be subject to the applicable prospectus delivery requirements of the Securities Act including Rule 172 thereunder andWe may
be subject to certain statutory liabilities of, including but not limited to, Sections 11, 12 and 17 of the Securities Act and Rule 10b-5 under the Securities Exchange Act of 1934, as amended, or the Exchange Act.Each Selling Stockholder has informed us that it is not a registered broker-dealer and does not have any written or oral agreement or understanding, directly or indirectly, with any person to distribute the Common Stock. Upon our being notified in writing by a Selling Stockholder that any material arrangement has been entered into with a broker-dealer for the sale of common stock through a block trade, special offering, exchange distribution or secondary distribution or a purchase by a broker or dealer, a supplement to this prospectus will be filed, if required, pursuant to Rule 424(b) under the Securities Act, disclosing (i) the name of each such Selling Stockholder and of the
participating broker-dealer(s), (ii) the number of shares involved, (iii) the price at which such the shares of Common Stock were sold, (iv) the commissions paid or discounts or concessions allowed to such broker-dealer(s), where applicable, (v) that such broker-dealer(s) did not conduct any investigation to verify the information set out or incorporated by reference in this prospectus, and (vi) other facts material to the transaction.
Under the securities laws of some states, the shares of Common Stock may be sold in such states only through registered or licensed brokers or dealers. In addition, in some states the shares of Common Stock may not be sold unless such shares have been registered or qualified for sale in such state or an exemption from registration or qualification is available and is complied with.
There can be no assurance that any Selling Stockholder will sell any or all of the shares of Common Stock registered pursuant to the registration statement of which this prospectus forms a part.
Each Selling Stockholder and any other person participating in such distribution will be subject to applicable provisions of the Exchange Act and the rules and regulations thereunder, including, without limitation, to the extent applicable, Regulation M of the Exchange Act, which may limit the timing of purchases and sales of any of the shares of Common Stock by the Selling Stockholder and any other participating person. To the extent applicable, Regulation M may also restrict the ability of any person engaged in the distribution of the shares of Common Stock to engage in market-making activities with respect to the shares of Common Stock. All of the foregoing may affect the marketability of the shares of Common Stock and the ability of any person or entity to engage in market-making activities with respect to the shares of Common Stock.
We will pay all expenses of the registration of the shares of Common Stock pursuant to the registration rights agreement, including, without limitation, Securities and Exchange Commission filing fees and expenses of compliance with state securities or “blue sky” laws; provided, however, that each Selling Stockholder will pay all underwriting discounts and selling commissions, if any and any related legal expenses incurred by it. We will indemnify the Selling Stockholders against certain liabilities, including some liabilities under the Securities Act, in accordanceagreements with the registration rights agreement, or the Selling Stockholders will be entitledunderwriters, agents and dealers to contribution. We
may be indemnified by the Selling Stockholdersindemnify them against certain civil liabilities, including liabilities under the Securities Act, thator to contribute to payments they may arise from any written information furnishedbe required to us bymake in respect of these liabilities. Underwriters, agents and dealers may engage in transactions with or perform services for Potbelly or our subsidiaries and affiliates in the Selling Stockholders specificallyordinary course of business.
One or more firms, referred to as “remarketing firms,” may also offer or sell the securities, if the prospectus supplement so indicates, in connection with a remarketing arrangement upon their purchase. Remarketing firms will act as principals for
use in this prospectus,their own accounts or as agents for us. These remarketing firms will offer or sell the securities in accordance with
a redemption or repayment pursuant to the
registration rightsterms of the securities. The prospectus supplement will identify any remarketing firm and the terms of its agreement,
or weif any, with us and will describe the remarketing firm’s compensation. Remarketing firms may be deemed to be underwriters in connection with the securities they remarket. Remarketing firms may be entitled
under agreements that may be entered into with us to
contribution.indemnification by us against certain civil liabilities, including liabilities under the Securities Act and may be customers of, engage in transactions with or perform services for us in the ordinary course of business.
Unless indicated in the applicable prospectus supplement, we do not expect to apply to list the securities on a securities exchange.
The validity of the
shares of Common Stocksecurities offered by this prospectus will be passed upon for us by
Mayer Brown LLP, Chicago, Illinois. Additional legal matters may be passed uponGreenberg Traurig, P.A., Fort Lauderdale, Florida, and counsel for any underwriters
dealers or agents,
by counsel thatif any, will be named in the applicable prospectus supplement.
The financial statements incorporated in this prospectus by reference
fromto the Company’s Annual Report on Form
10-K for the year ended December
27, 202031, 2023, and the effectiveness of the Company’s internal control over financial reporting have been audited by Deloitte & Touche LLP, an independent registered public accounting firm, as stated in their
report,reports, which
isare incorporated herein by reference. Such financial statements
have been soare incorporated
by reference in reliance upon the
reportreports of such firm given
upon their authority as experts in accounting and auditing.
WHERE YOU CAN FIND MORE INFORMATION We file annual, quarterly and
specialcurrent reports, proxy statements and other information with the SEC. Our SEC filings are available to the public over the Internet at the SEC’s web site at
http://www.sec.gov. Our SEC filings are also available at the office of the Nasdaq Stock Market, Inc., Reports Section, 1735 K Street N.W., Washington, D.C. 20006. For further information on obtaining copies of our public filings at the Nasdaq, you should call (212) 401-8700.The SEC also maintains an Internet web site that contains reports, proxy statements and other information about issuers, like us, that file electronically with the SEC. The address of that site is http://www.sec.gov. The SEC file number for documents filed by us under the Exchange Act is 001-36104.
www.sec.gov.
The SEC allows us to incorporate by reference into this prospectus the information we file with the SEC. This means that we are disclosing important information to you by referring to other documents. The information incorporated by reference is considered to be part of this prospectus, except for any information superseded by information contained directly in this prospectus. Information that we file later with the SEC under the Exchange Act will automatically update information in this prospectus. In all cases, you should rely on the later information over different information included in this prospectus. We incorporate by reference the documents listed below (other than any portions thereof, that, under the Exchange Act and applicable SEC rules, are not deemed “filed”
under the Exchange Act) and any future filings made with the SEC under Section 13(a), 13(c), 14 or 15(d) of the Exchange Act prior to the termination of the offering of securities covered by this prospectus:
| • | | Our Annual Report on Form 10-K for the year ended December 27, 2020;
|
| • | | The description of our common stock contained in the Registration Statement on Form 8-A filed on September 30, 2013, including any amendments or reports filed for the purposes of updating such description.
|
•Our Annual Report on Form 10-K for the year ended December 31, 2023;
•Our Quarterly Report on Form 10-Q for the quarterly period ended March 31, 2024;
•Our Current Report on Form 8-K filed on February 12, 2024;
•Our Definitive Proxy Statement on Schedule 14A filed with the SEC on April 5, 2024 (solely with respect to those portions incorporated by reference into our Annual Report on Form 10-K for the year ended December 31, 2023); and
•The description of our common stock contained in the Registration Statement on Form 8-A filed on September 30, 2013, including any amendments or reports filed for the purposes of updating such description, including Exhibit 4.1 to our Annual Report on Form 10-K for the year ended December 31, 2023, filed on March 8, 2024.
All other documents that we file with the SEC pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act after the initial filing of the registration statement and prior to the termination of the offering of securities covered by this prospectus shall also be deemed to be incorporated by reference in this prospectus and to be a part hereof from the respective dates of the filing of such documents (other than any such documents, or portions thereof that, under the Exchange Act and applicable SEC rules, are not deemed “filed” under the Exchange Act). If we have incorporated by reference any statement or information in this prospectus and we subsequently modify that statement or information with information contained in this prospectus or a subsequent incorporated document, the statement or information previously incorporated in this prospectus is also modified or superseded in the same manner.
You may also request a copy of these filings, at no cost, by visiting our website at www.potbelly.com or by writing or telephoning us at:
Potbelly Corporation
111 N. Canal Street, Suite 850
325
Chicago, Illinois 60606
Phone: (312) 951-0600
Exhibits to any documents incorporated by reference in this prospectus will not be sent, however, unless those exhibits have been specifically referenced in this prospectus. Information contained on our website is not incorporated by reference into this prospectus, and you should not consider information contained on our website as part of this prospectus.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and
DistributionDistribution.
The following table sets forth the fees and expenses, expectedother than underwriting discounts and commissions, payable by us in connection with the sale of the securities being registered hereby:
| | | | | |
| Amount to be paid |
| SEC Registration Fee | $ 8,183(1) |
| Accounting Fees and Expenses | * |
| Legal Fees and Expenses | * |
| Transfer Agent and Registrar Fees and Expenses | * |
| Miscellaneous | * |
| Total | * |
| |
(1) In accordance with Rule 415(a)(6) under the Securities Act, the filing fee previously paid in connection with the securities registered in the registration statement on Form S-3 (File No. 333-255845), all of which remain unsold, will continue to be incurredapplied to the securities registered under this Registration Statement. Please see the registration fee table contained in Exhibit 107 to this registration statement for more information.
* The foregoing sets forth the general categories of fees and expenses (other than underwriting discounts and commissions) that we anticipate we will incur in connection with the offering of securities under this registration statement. Because an indeterminate amount of securities is covered by this registration statement, certain expenses in connection with the issuance and distribution of
securities are not currently determinable. An estimate of the
aggregate fees and expenses in connection with each sale of securities
registered hereby, other than underwriting discounts and commissions. | | | | |
Commission registration fee | | $ | 2,721 | |
Accounting fees and expenses | | | 25,000 | |
Legal fees and expenses | | | 10,000 | |
Miscellaneous | | | 2,279 | |
| | | | |
Total | | $ | 40,000 | |
| | | | |
Item 15. Indemnification of Directors and Officers.
The
RegistrantCompany is governed by the
Delaware General Corporation Law, or DGCL. Section 145 of the DGCL provides that a corporation may indemnify any person, including an officer or director, who was or is, or is threatened to be made, a party to any threatened, pending or completed legal action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of such corporation), by reason of the fact that such person was or is an officer, director, employee or agent of such corporation or is or was serving at the request of such corporation as a director, officer, employee or agent of another corporation or enterprise. The indemnity may include expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding, provided such officer, director, employee or agent acted in good faith and in a manner such person reasonably believed to be in, or not opposed to, the corporation’s best interest and, for criminal proceedings, had no reasonable cause to believe that such person’s conduct was unlawful. A Delaware corporation may indemnify any person, including an officer or director, who was or is, or is threatened to be made, a party to any threatened, pending or contemplated action or suit by or in the right of such corporation, under the same conditions, except that such indemnification is limited to expenses (including attorneys’ fees) actually and reasonably incurred by such person, and except that no indemnification is permitted without judicial approval if such person is adjudged to be liable to such corporation. Where an officer or director of a corporation is successful, on the merits or otherwise, in the defense of any action, suit or proceeding referred to above, or any claim, issue or matter therein, the corporation must indemnify that person against the expenses (including attorneys’ fees) which such officer or director actually and reasonably incurred in connection therewith.
The Registrant’sCompany’s amended and restated by-laws authorize the indemnification of its officers and directors, consistent with Section 145 of the Delaware General Corporation Law, as amended. The RegistrantCompany has entered into
indemnification agreements with each of its directors and executive officers. These agreements, among other things, require the
RegistrantCompany to indemnify each director and executive officer to the fullest extent permitted by Delaware law, including advancement of expenses such as attorneys’ fees, judgments, fines and settlement amounts incurred by the director or executive officer in any action or proceeding, including any action or proceeding by or in right of the
Registrant,Company, arising out of the person’s services as a director or executive officer.
Under the
Registrant’sCompany’s certificate of incorporation, a director of the
RegistrantCompany will not be liable to the
RegistrantCompany or its stockholders for monetary damages for any breach of fiduciary duty as a director, except to the extent such exemption from liability or limitation thereof is not permitted under the DGCL. Reference is made to Section 102(b)(7) of the DGCL, which enables a corporation in its original certificate of incorporation or an amendment thereto to eliminate or limit the personal liability of a director for violations of the director’s fiduciary duty, except (i) for any breach of the director’s duty of loyalty to the corporation or its stockholders, (ii) for acts or omissions not in good faith or that involve intentional misconduct or a knowing violation of law, (iii) pursuant to Section 174 of the DGCL, which provides for liability of directors for unlawful payments of dividends or unlawful
stock purchases or redemptions or (iv) for any transaction from which a director derived an improper personal benefit.
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The RegistrantCompany maintains standard policies of insurance that provide coverage (i) to its directors and officers against loss arising from claims made by reason of breach of duty or other wrongful act and (ii) to the RegistrantCompany with respect to indemnification payments that it may make to such directors and officers.
See the Exhibit Index immediately preceding the signature pages of this registration statement, which is incorporated herein by reference.
(a) The
undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i)
Toto include any prospectus required by Section 10(a)(3) of the Securities
Act of 1933;Act;
(ii)
Toto reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in
thethis registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the SEC pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than
a 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement;
and
(iii) Toto include any material information with respect to the plan of distribution not previously disclosed in thethis registration statement or any material change to such information in thethis registration statement;
provided, however, that paragraphs (a)(1)(i), (a)(1)(ii) and (a)(1)(iii) above do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or
furnished to the SEC by the registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act
of 1934 that are incorporated by reference in
thethis registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of
thethis registration statement.
(2) That, for the purpose of determining any liability under the Securities Act,
of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
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(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
(4) That, for
purposesthe purpose of determining liability under the Securities Act
of 1933 to any purchaser:
(i) Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of
thethis registration statement as of the date the filed prospectus was deemed part of and included in
thethis registration statement; and
(ii) Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5)
, or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii)
, or (x) for the purpose of providing the information required by Section 10(a) of the Securities Act
of 1933 shall be deemed to be part of and included in
thethis registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which
thatthe prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof; provided, however, that no statement made in a registration statement or prospectus that is part of
thethis registration statement or made in a document incorporated or deemed incorporated by reference into
thethis registration statement or prospectus that is part of
thethis registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in
thethis registration statement or prospectus that was part of
thethis registration statement or made in any such document immediately prior to such effective date.
(5) That, for the purpose of determining liability of the registrant under the Securities Act to any purchaser in the initial distribution of the securities, the undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
(i) Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424;
(ii) Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant;
(iii) The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and
(iv) Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser.
(b) The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act,
of 1933, each filing of
suchthe registrant’s annual report pursuant to Section 13(a) or
Section 15(d) of the
Securities Exchange Act
of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to
sectionSection 15(d) of the
Securities Exchange
Act of 1934)Act) that is incorporated by reference in
thethis registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the
Securities and Exchange Commission,SEC such indemnification is against public policy as expressed in the Securities Act
of 1933 and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of
suchthe registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act
of 1933 and will be governed by the final adjudication of such issue.
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The undersigned registrant hereby undertakes to file an application for the purpose of determining the eligibility of the trustee to act under subsection (a) of Section 310 of the Trust Indenture Act of 1939, as amended, in accordance with the rules and regulations prescribed by the SEC under Section 305(b)(2) of the Trust Indenture Act of 1939, as amended.
EXHIBIT INDEX
| | | | | |
| Exhibit No. | Description |
| 1.1* | Form of Underwriting Agreement. |
| 4.1 | |
| 4.2 | |
| 4.3 | |
| 4.4* | Form of Debt Security. |
| 4.5* | Form of Warrant Agreement. |
| 4.6* | Form of Warrant Certificate. |
| 4.7* | Form of Unit Agreement. |
| 5.1 | |
| 23.1 | |
| 23.2 | |
| 24.1 | Powers of Attorney (included on the signature page to this registration statement). |
| 25.1** | Form T-1 Statement of Eligibility of the Trustee under the Trust Indenture Act of 1939, as amended. |
| 107.1 |
|
| | | | | |
| * | To be filed, if applicable, by amendment or by a current report on Form 8-K and incorporated by reference herein prior to the issuance of the applicable securities. |
| | | | | |
| ** | To be filed pursuant to Section 305(b)(2) of the Trust Indenture Act of 1939, as amended. |
Pursuant to the requirements of the Securities Act of 1933,
Potbelly Corporationthe registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form
S-3 and has duly caused this
Registration Statementregistration statement to be signed on its behalf by the undersigned, thereunto duly authorized in
the City of Chicago,
State of Illinois, on
the 15th day of March, 2021.May 8, 2024. | | | | | | | | |
| | |
| POTBELLY CORPORATION |
| |
| By: | | ROBERT/s/ Robert D. WRIGHT
Wright |
| Name: | | Robert D. Wright |
| Title: | | President and Chief Executive Officer |
Each of the undersigned
members of the Board of Directorsofficers and
officersdirectors of Potbelly Corporation hereby
severally constitutes and appoints Robert
D. Wright, Steven Cirulis and Adiya Dixon,
and each of them,as the
true and lawful attorneys-in-fact and agents of such undersigned, with full power of substitution and re-substitution, for
and in the
name, place and stead of such undersigned, in any and all capacities,
with full power of substitution, to sign
(i)any and all pre- or post-effective amendments to this
Registration Statement on Form S-3 (the “Registration Statement”)registration statement, any subsequent registration statement for the same offering which may be filed pursuant to
effect the registrationRule 462(b) under the Securities Act of 1933, as amended,
(the “Act”), of shares of common stock of Potbelly Corporation and
(ii)any and all
pre-and post-effective amendments
(including post-effective amendments) to such Registration Statement,thereto, and to file the same with
all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission,
and hereby grants to such attorneys-in-fact and agents, and each of them,granting unto said attorney-in-fact full power and authority to do and perform each and every act and thing requisite and necessary to be done
in and about the premises, as fully to all intents and purposes as
such undersignedhe might or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or any of them, or their or his substitute, or substitutes,attorney-in-fact may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statementregistration statement has been signed by the following persons in the capacities
and on the dates indicated
on March 15, 2021.below. | | | | | | | | |
Name
Signature | Title | Position
Date |
ROBERT
/s/ Robert D. WRIGHTWright Robert D. Wright | | President and Chief Executive Officer (Principal Executive Officer);Officer; Director (principal executive officer) | May 8, 2024 |
Robert D. Wright/s/ Steven W. Cirulis Steven W. Cirulis | | |
| |
STEVEN CIRULIS
| | Senior Vice President, Chief Financial Officer and Chief Strategy Officer (Principal Financial (principal financial and Accounting Officer)accounting officer) | May 8, 2024 |
Steven Cirulis/s/ Joseph Boehm Joseph Boehm | Chairman of the Board | May 8, 2024 |
/s/ Vann Avedisian Vann Avedisian | Director | May 8, 2024 |
JOSEPH BOEHM
| /s/ Adrian Butler Adrian Butler | Director |
Joseph Boehm | | May 8, 2024 |
/s/ Jill Sutton Jill Sutton | Director | May 8, 2024 |
ADRIAN BUTLER
| /s/ David Head David Head | Director |
Adrian Butler | | May 8, 2024 |
| |
MARLA GOTTSCHALK
| | Director |
Marla Gottschalk | | |
| |
DAVID HEAD
| | Director |
David Head | | |
| |
DAVID J. NEAR
| | Director |
/s/ David J. Near David J. Near | Director | |
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| | May 8, 2024 |
BEN ROSENZWEIG
| /s/ David Pearson David Pearson | Director |
Ben Rosenzweig | | May 8, 2024 |
| |
TODD W. SMITH
| | Director |
/s/ Todd W. Smith Todd W. Smith | Director | May 8, 2024 |
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