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Section 1: S-8

As filed with the Securities and Exchange Commission on June 1, 2018
Registration No. 333-

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
                                           
FORM S-8
REGISTRATION STATEMENT
 
UNDER
THE SECURITIES ACT OF 1933
                                           

Good Times Restaurants Inc.
(Exact name of registrant as specified in its charter)
                                           
 
Nevada
(State or other jurisdiction of
incorporation or organization)
84-1133368
(I.R.S. Employer
Identification Number)
141 Union Boulevard, #400
Lakewood, CO 80228
(Address of principal executive offices, including zip code)
                                           
 
2018 Omnibus Equity Incentive Plan
 (Full title of the plan)
                                           
 
Boyd E. Hoback
President and Chief Executive Officer
141 Union Boulevard, #400
Lakewood, CO 80228
(303) 384-1400
(Name, address and telephone number, including area code, of agent for service)
                                           
 
With copies to:
Roger C. Cohen, Esq.
Snell & Wilmer L.L.P.
1200 17th Street, Suite 1900
Denver, Colorado 80202
Telephone: (303) 634-2000
                                           
 
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act:
 
Large accelerated filer  ☐
 
Accelerated filer  ☐
Non-accelerated filer  ☐
(Do not check if a smaller reporting company)
Smaller reporting company  ☒
   
Emerging growth company  ☐
 
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ☐
                                           
 

 
CALCULATION OF REGISTRATION FEE

Title of
securities to be
registered
Amount to be
registered
Proposed maximum
offering price
per share
Proposed maximum
aggregate
offering price
Amount of
registration fee
Common Stock, $0.001 par
value per share
750,000 shares(1)(2)
$3.19(3)
$2,392,500
$297.87
(1)
Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the “Securities Act”), this registration statement shall also cover any additional shares of common stock that may become issuable under the Good Times Restaurants Inc. 2018 Omnibus Equity Incentive Plan (the “Plan”) by reason of any stock dividend, stock split, recapitalization or similar adjustments.
(2)
Represents 750,000 shares of common stock of the registrant issuable under the Plan.
(3)
Estimated solely for purposes of calculating the registration fee pursuant to Rules 457(c) and 457(h) under the Securities Act based upon the average of the high and low prices of the registrant’s common stock, as reported on The NASDAQ Capital Market on May 29, 2018.
 

 

 
EXPLANATORY NOTE
 
This registration statement is being filed solely for the registration of 750,000 shares of common stock, $0.001 par value per share, of Good Times Restaurants Inc., a Nevada corporation (the “Registrant”), for issuance pursuant to the Good Times Restaurants Inc. 2018 Omnibus Equity Incentive Plan (the “Plan”).
    
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
 
Item 1.
Plan Information.*
 
Item 2.
Registrant Information and Employee Plan Annual Information.*
 
*
The documents containing the information specified in Part I of this Form S-8 will be delivered to eligible participants in the Plan in accordance with Form S-8 and Rule 428(b)(1) under the Securities Act of 1933, as amended (the “Securities Act”).  These documents are not being filed with the Securities and Exchange Commission (the “Commission”) either as part of this registration statement or as prospectuses or prospectus supplements pursuant to Rule 424 under the Securities Act.  These documents and the documents incorporated by reference into this registration statement pursuant to Item 3 of Part II of this Form S-8, taken together, constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act.

 
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
 
Item 3.
Incorporation of Documents by Reference.
 
The following documents have been filed by the Registrant with the Commission and are hereby incorporated by reference in this registration statement:

1.
The Registrant’s Annual Report on Form 10-K for the year ended September 26, 2017, filed with the Commission on December 22, 2017.
 
2.
The Registrant’s Quarterly Reports on Form 10-Q for the quarterly periods ended December 26, 2017 and March 27, 2018, filed with the Commission on February 9, 2018 and May 11, 2018, respectively.
 
3.
The Registrant’s Current Reports on Form 8-K, filed with the Commission on November 20, 2017, November 22, 2017, January 16, 2018 (as amended on January 23, 2018), March 13, 2018, April 17, 2018 (both reports filed on such date) and May 30, 2018.
 
4.
The description of the Registrant’s common stock contained in its Registration Statement on Form 8-A, filed with the Commission on May 14, 1990, and any amendment or report filed for the purpose of updating such description.
 
All documents filed by the Registrant pursuant to Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), subsequent to the filing of this registration statement and prior to the filing of a post-effective amendment, which indicates that all securities offered hereby have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference into this registration statement and to be a part hereof from the date of filing such documents, except as to specific sections of such documents as set forth therein.  Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this registration statement to the extent that a statement contained in any subsequently filed document which also is deemed to be incorporated by reference herein modifies or supersedes such statement.

Item 4.
Description of Securities.
 
Not applicable.

Item 5.
Interests of Named Experts and Counsel.
 
Not applicable.
 

 
Item 6.
Indemnification of Directors and Officers.
 
Nevada law authorizes corporations to limit or eliminate (with a few exceptions) the personal liability of directors to corporations and their stockholders for monetary damages for breaches of directors’ fiduciary duties as directors.  Our articles of incorporation and bylaws include provisions that eliminate, to the extent allowable under Nevada law, the personal liability of directors or officers for monetary damages for actions taken as a director or officer, as the case may be.  Our articles of incorporation and bylaws also provide that we must indemnify and advance reasonable expenses to our directors and officers to the fullest extent permitted by Nevada law.  We are also expressly authorized to carry directors’ and officers’ insurance for our directors, officers, employees and agents for some liabilities.  We currently maintain directors’ and officers’ insurance covering certain liabilities that may be incurred by directors and officers in the performance of their duties.

The limitation of liability and indemnification provisions in our articles of incorporation and bylaws may discourage stockholders from bringing a lawsuit against directors for breach of their fiduciary duty.  These provisions may also have the effect of reducing the likelihood of derivative litigation against directors and officers, even though such an action, if successful, might otherwise benefit us and our stockholders.  In addition, your investment may be adversely affected to the extent that, in a class action or direct suit, we pay the costs of settlement and damage awards against directors and officers pursuant to the indemnification provisions in our articles of incorporation and bylaws.

Item 7.
Exemption From Registration Claimed.
 
Not applicable.

Item 8.
Exhibits.
 
A list of exhibits filed with this registration statement is set forth in the Exhibit Index following the signature page to this registration statement and is incorporated herein by reference.

Item 9.
Undertakings.
 
(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)
To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933, as amended (the “Securities Act”);
 
ii)
To 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 the 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 Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a twenty percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement.
 
iii)
To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement;
 
provided, however, that paragraphs (a)(1)(i) and (ii) of this section 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 Commission by the Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in the registration statement.
 
2.
That, for the purpose of determining any liability under the Securities Act, 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.
 
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.
 

 
(b)
The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in the 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 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 Commission such indemnification is against public policy as expressed in the Securities Act 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 the 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 and will be governed by the final adjudication of such issue.
 

 
SIGNATURES
 
Pursuant to the requirements of the Securities Act of 1933, as amended, the Registrant certifies that it has reasonable grounds to believe that it meets all the requirements for filing on Form S-8 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Lakewood, State of Colorado, on June 1, 2018.
 
Good Times Restaurants Inc.
 
       
By:
/s/ Boyd E. Hoback
 
 
Name:   
Boyd E. Hoback
 
  Title:
President and Chief Executive Officer
 
       
 
POWER OF ATTORNEY
 
Each person whose signature appears below hereby constitutes and appoints Boyd E. Hoback and Ryan M. Zink, and each of them, his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this registration statement, and to file the same, with any and 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, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as he or she 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, may lawfully do or cause to be done by virtue hereof.

Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed by the following persons in the capacities and on the dates indicated.

Signature
Title
Date
     
/s/ Boyd E. Hoback
President, Chief Executive Officer and Director
June 1, 2018
Boyd E. Hoback
(Principal Executive Officer)
 
     
     
/s/ Ryan M. Zink
Chief Financial Officer
June 1, 2018
Ryan M. Zink
(Principal Financial Officer and
 
 
Principal Accounting Officer)
 
     
     
/s/ Geoffrey R. Bailey
Chairman of the Board of Directors
June 1, 2018
Geoffrey R. Bailey
   
     
     
/s/ Charles Jobson
Director
June 1, 2018
Charles Jobson
   
     
     
/s/ Jason S. Maceda
Director
June 1, 2018
Jason S. Maceda
   
     
     
/s/ Robert J. Stetson
Director
June 1, 2018
Robert J. Stetson
   
 

 
EXHIBIT INDEX

Exhibit
Description
4.1(P)
Articles of Incorporation of Good Times Restaurants Inc. (previously filed on November 30, 1988 as to the registrant’s Registration Statement on Form S-18 (File No. 33-25810-LA) and incorporated herein by reference)
 
 
4.2(P)
Amendment to Articles of Incorporation of Good Times Restaurants Inc. dated January 23, 1990 (previously filed on January 18, 1990 as Exhibit 3.1 to the registrant’s Current Report on Form 8-K (File No. 000-18590) and incorporated herein by reference)
 
 
4.3
 
 
4.4
 
 
4.5
 
 
4.6
 
 
4.7
 
 
4.8
 
 
4.9
 
 
4.10
 
 
4.11
 
 
4.12
 
 
4.13
 
 
4.14
 

 
5.1*
 
 
23.1*
 
 
23.2*
 
 
23.3*
 
 
24.1*
 
 
99.1
____________________
(P)
Paper exhibit
*
Filed herewith
 
 
 

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Section 2: EX-5.1 (EXHIBIT 5.1)

EXHIBIT 5.1

[Snell & Wilmer L.L.P. Letterhead]



June 1, 2018

Good Times Restaurants Inc.
141 Union Boulevard, #400
Lakewood, CO 80228

Ladies and Gentlemen:

We have acted as special counsel to Good Times Restaurants Inc., a Nevada corporation (the “Company”), and are delivering this opinion in connection with the Registration Statement on Form S-8 of the Company (together with all exhibits thereto, the “Registration Statement”) being filed with the Securities and Exchange Commission (the “Commission”) on the date hereof, relating to the registration by the Company of an aggregate of 750,000 shares (the “Plan Shares”) of the Company’s common stock, $0.001 par value per share (the “Common Stock”), authorized for issuance pursuant to the Good Times Restaurants Inc. 2018 Omnibus Equity Incentive Plan (the “Plan”).
 
This opinion is being furnished in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act of 1933, as amended (the “Securities Act”).
 
In rendering this opinion, we have examined such matters of fact as we have deemed necessary in order to render the opinion set forth herein, which included examination of the following:
 
(A)
the Registration Statement in the form to be filed with the Commission under the Securities Act on the date hereof;

(B)
the Plan;

(C)
an executed copy of a certificate of the Chief Financial Officer of the Company, dated as of the date hereof (the “Officer’s Certificate”);

(D)
the Company’s Articles of Incorporation, as amended, as certified by the Secretary of State of the State of Nevada as of a recent date;

(E)
the Company’s Restated Bylaws, as amended, as certified pursuant to the Officer’s Certificate as being complete and in full force and effect as of the date hereof; and

(F)
resolutions of the Board of Directors of the Company relating to the Plan and the Plan Shares.
 

 
Good Times Restaurants Inc.
June 1, 2018
Page 2


In our examination, we have assumed the legal capacity of all natural persons, the genuineness of all signatures, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as facsimile, electronic, certified or photostatic copies, and the authenticity of the originals of such copies. In making our examination of documents executed or to be executed, we have assumed that the parties thereto, other than the Company, had or will have the power, corporate or other, to enter into and perform all obligations thereunder and have also assumed the due authorization by all requisite action, corporate or other, and the execution and delivery by such parties of such documents and the validity and binding effect thereof on such parties. As to any facts material to the opinions expressed herein that we did not independently establish or verify, we have relied upon statements and representations of officers and other representatives of the Company and others and of public officials.
 
On the basis of, and in reliance on, the foregoing examination and subject to the limitations contained herein, it is our opinion that the Plan Shares have been duly authorized for issuance and, when issued, delivered and paid for in accordance with the terms of the Plan, the Plan Shares will be validly issued, fully paid and nonassessable.
 
We express no opinion as to the laws of any other jurisdiction, other than the Federal laws of the United States of America and the general corporate laws of the State of Nevada.
 
We hereby consent to the filing of this opinion with the Commission as an exhibit to the Registration Statement. We also consent to all references to us, if any, in the Registration Statement, the prospectus constituting a part thereof and any amendments thereto. In giving this consent, we do not thereby admit that we are included in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission.
 

 
Very truly yours,
   
   
   
 
/s/ Snell & Wilmer L.L.P.

 

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Section 3: EX-23.1 (EXHIBIT 23.1)

EXHIBIT 23.1

 
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

We consent to the incorporation by reference in this Registration Statement (Form S-8) of Good Times Restaurants Inc. of our report dated December 22, 2017, relating to the consolidated financial statements of Good Times Restaurants Inc., which report appears in the Form 10-K of Good Times Restaurants Inc. for the year ended September 26, 2017.


/s/ Moss Adams LLP

Denver, Colorado
June 1, 2018
 
 


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Section 4: EX-23.2 (EXHIBIT 23.2)

EXHIBIT 23.2

 
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

We consent to the incorporation by reference in this Registration Statement on Form S-8 of Good Times Restaurants Inc. of our report dated December 27, 2016, relating to the consolidated financial statements of Good Times Restaurants Inc., appearing in the Annual Report on Form 10-K of Good Times Restaurants Inc. for the year ended September 26, 2017.


/s/ Hein & Associates LLP

Denver, Colorado
June 1, 2018
 
 
 

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