Item 3.01
Notice of Delisting or Failure to Satisfy a Continued Listing Rule or Standard; Transfer of Listing.
As disclosed under Item 5.02 below, Neil M. Calvert ceased to be a director of Good Times Restaurants Inc. (the “ Company ” ) effective August 30, 2013.
On September 3, 2013, the Company notified The NASDAQ Stock Market ( “ NASDAQ ” ) that it no longer satisfies NASDAQ Listing Rule 5605(b)(1), which requires that a majority of the board of directors be comprised of independent directors, and NASDAQ Listing Rule 5605(c)(2)(A), which requires that the Audit Committee be comprised of at least three members, each of whom is an independent director under the applicable NASDAQ listing standards and Securities and Exchange Commission ( “ SEC ” ) rules. Currently, as a result of Mr. Calvert ’ s ceasing to be a director, the Company ’ s Board of Directors consists of six directors, three of whom are independent, and the Company ’ s Audit Committee is comprised of only two members, both of whom are independent.
The Company ’ s next annual meeting of stockholders is scheduled for September 27, 2013. The Company has nominated, in addition to the six current directors, two additional individuals for election to its Board of Directors who satisfy the requirements for director independence under the applicable NASDAQ listing standards. If the Company ’ s proposed slate of directors is elected by the stockholders at the annual meeting, the Company ’ s board will be comprised of eight directors, five of whom are independent, and the Company will therefore regain compliance with NASDAQ Listing Rule 5605(b)(1). In addition, following the annual meeting, the Company intends to appoint one of the newly elected independent directors to the Audit Committee to regain compliance with NASDAQ Listing Rule 5605(c)(2)(A).
Item 5.02
Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
On August 30, 2013, the Company acknowledged the resignation of Neil M. Calvert from the Company ’ s Board of Directors and his related responsibilities on the Audit Committee, effective August 30, 2013.
Mr. Calvert has been unable to participate to any extent as a member of the Company ’ s Board of Directors apparently due to personal medical issues and, to the Company ’ s knowledge, not due to any disagreement with the Company on any matter relating to the Company ’ s operations, policies, or practices.
Mr. Calvert was initially appointed as a director of the Company on July 3, 2012 as a designee of Small Island Investments Limited ( “ SII ” ), pursuant to the Securities Purchase Agreement dated October 29, 2010 between the Company and SII. Mr. Alan Teran, an independent director under the applicable NASDAQ listing standards and an audit committee financial expert, as that term is defined by SEC rules, will fill the vacancy as the Audit Committee Chairman and as a financial expert.
Item 5.03
Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.
On August 30, 2013, the Board of Directors of the Company approved and adopted an amendment to the Company ’ s bylaws to increase the maximum number of directors of the Company from seven to eight. A copy of the bylaw amendment is attached hereto as Exhibit 3.1 and is incorporated herein by reference.
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Item 8.01
Other Events.
On August 30, 2013, the Board of Directors of the Company approved and adopted a written charter for the Company ’ s Compensation Committee. A copy of the Compensation Committee charter is attached hereto as Exhibit 99.1 and is incorporated herein by reference.
On September 6, 2013, the Company issued a press release announcing the changes to its board composition and the nomination of director candidates for election at the annual meeting of stockholders scheduled for September 27, 2013. A copy of the press release is attached hereto as Exhibit 99.2 and is incorporated herein by reference.
Item 9.01
Financial Statements and Exhibits.
(d)
Exhibits. The following exhibits are filed as part of this report:
|
Exhibit Number |
Description |
|
|
|
|
3.1 |
Bylaw Amendment, effective August 30, 2013 |
|
99.1 |
Compensation Committee Charter, effective August 30, 2013 |
|
99.2 |
Press Release dated September 6, 2013 |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
GOOD TIMES RESTAURANTS INC.
Date: September 6, 2013
By: /s/ Boyd E. Hoback
Boyd E. Hoback
President and Chief Executive Officer
EXHIBIT INDEX
The following exhibits are furnished as part of this report:
|
Exhibit Number |
Description |
|
3.1 |
Bylaw Amendment, effective August 30, 2013 |
|
99.1 |
Compensation Committee Charter, effective August 30, 2013 |
|
99.2 |
Press Release dated September 6, 2013 |
3
SECOND AMENDMENT
TO THE
RESTATED BYLAWS
OF
GOOD TIMES RESTAURANTS INC.
This Second Amendment (this “ Amendment ”) to the Restated Bylaws of Good Times Restaurants Inc., a Nevada corporation (the “ Company ”), dated as of November 7, 1997, as amended August 14, 2007 (the “ Bylaws ”), is entered into effective as of August 30, 2013 (the “ Effective Date ”).
1.
Article III, Section 3 of the Bylaws is hereby amended and restated in its entirety to read as follows:
“ Section 3. Number, Tenure and Qualifications . The number of Directors of the corporation shall be as determined by the Board of Directors in accordance with the Articles of Incorporation, but shall not be greater than eight. Each Director shall hold office until the next annual meeting of shareholders and until his successor shall have been duly elected and qualified. Directors need not be residents of the State of Nevada or shareholders of the corporation.”
2.
This Amendment shall amend only the provision of the Bylaws as set forth herein. Those provisions of the Bylaws not expressly amended shall remain in full force and effect.
IN WITNESS WHEREOF, the Company has caused this Amendment to be duly executed and delivered by its authorized officer as of the Effective Date.
GOOD TIMES RESTAURANTS INC.
By: /s/ Boyd E. Hoback ______________
Boyd E. Hoback
President & Chief Executive Officer
Good Times Restaurants Inc.
Compensation Committee Charter
I.
Purpose
The purpose of the Compensation Committee of the Board of Directors (the “Board”) of Good Times Restaurants, Inc., a Nevada corporation (the “Company”) shall be to review and approve all forms of compensation to be provided to the executive officers and directors of the Company.
II.
Statement of Philosophy
The Company’s philosophy in setting its compensation policies for executive officers is to attract and retain key executive talent that maximizes shareholder value over time. The Compensation Committee believes that executive officers should have sufficient equity or equity-linked compensation as to align the interests of executive officers with those of the Company’s shareholders.
III.
Membership
The Compensation Committee shall consist of a minimum of two non-employee directors of the Company as such members are appointed from time to time by the Board and such members shall serve at the discretion of the Board. The non-employee director members shall be “non-employee directors” within the meaning of Rule 16b-3 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), shall also be “outside directors” within the meaning of Section 162(m) of the Internal Revenue Code of 1986, as amended; and shall be independent pursuant to Rule 10c-1(b)(1) under the Exchange Act and Nasdaq Rule 5605(d)(2).
IV.
Scope of Responsibilities
The responsibilities of the Compensation Committee include:
1.
Reviewing and approving the compensation and compensation policy for executive officers of the Company, and such other employees of the Company as directed by the Board.
2.
Reviewing and approving all forms of compensation (including all “plan” compensation, as such term is defined in Item 402(a)(7) of Regulation S-K promulgated by the Securities and Exchange Commission, and all non-plan compensation) to be provided to the executive officers of the Company. The chief executive officer shall not be present during voting or deliberations on his or her compensation.
3.
Acting as Administrator (as defined therein) of the Company’s Omnibus Equity Stock Option Plan and such other plans as may be enacted by the Company (collectively, the “Plans”). The Compensation Committee may (i) grant stock options and stock purchase rights and other awards to individuals eligible for such grants, including grants to individuals subject to Section 16 of the Exchange Act in compliance with Rule 16b-3 promulgated thereunder, and (ii) amend such stock options and stock purchase rights and other awards. The Compensation Committee shall also make recommendations to the Board with respect to amendments to the Plans and changes in the number of shares reserved for issuance under the each Plan;
4.
Reviewing and making recommendations to the Board regarding other plans that are proposed for adoption or adopted by the Company for the provision of compensation to employees of, directors of and consultants to the Company;
5.
Preparing a report (to be included, when required under the applicable rules, in the Company’s proxy statement) which describes: (i) that the Compensation Committee has reviewed and discussed the Compensation Discussion and Analysis with management and (ii) that based on the review and discussions, the Compensation Committee recommend to the Board that the Compensation Discussion and Analysis be included in the Proxy Statement and incorporated into the Company’s upcoming Annual Report;
1
6.
Authorizing the repurchase of shares from terminated employees pursuant to applicable law.
7.
Reviewing and reassessing the adequacy of this Charter periodically, as appropriate and no less than annually, and making recommendations to the Board for any proposed changes; and
8.
The Compensation Committee shall have the authority, in its sole discretion, to retain or obtain the advice of a compensation consultant, independent legal counsel or other adviser. The Compensation Committee shall be directly responsible for the appointment, compensation and oversight of the work of any compensation consultant, independent legal counsel or other adviser. The Compensation Committee may select a compensation consultant, legal counsel (other than in-house counsel) or other adviser only after taking into consideration the following factors, as well as any other factors identified by Nasdaq (excluding in-house counsel): (1) the provision of other services to the Company by the person that employs the compensation consultant, legal counsel or other adviser; (2) the amount of fees received from the Company by the person that employs the compensation consultant, legal counsel or other adviser, as a percentage of the total revenue of the person of that employs the compensation consultant, legal counsel or other adviser; (3) the policies and procedures as to the compensation consultant, legal counsel or other adviser that are designed to prevent conflicts of interest; (4) any business or personal relationship of the compensation consultant, legal counsel or other adviser with a member of the Compensation Committee; (5) any stock of the Company owned by the compensation consultant, legal counsel or other adviser; and (6) any business of personal relationship of the compensation consultant, legal counsel, other adviser or the person employing the adviser with an executive officer of the Company. Nothing herein shall require an compensation consultant, legal counsel or other adviser to be independent, only that the Compensation Committee consider the six independence factors enumerated above before selecting, or receiving advice from, such a compensation adviser. However, the Compensation Committee is not required to consider the foregoing factors if the compensation consultant, legal counsel or other adviser’s services are limited to consulting on any broad-based plan that does not discriminate in scope, terms or operation in favor of executive officers or directors and that is generally available to all salaried employees or providing information that is either not customized for the Company or that is customized based on parameters that are not developed by the adviser, and about which the adviser does not provide advice.
V.
Meetings
The Compensation Committee shall meet at least one time each year. The Compensation Committee may establish its own meeting schedule. The Board shall designate a chairperson of the Compensation Committee. Meetings may be held in person or by telephone.
VI.
Minutes
The Compensation Committee shall maintain written minutes of its meetings, which minutes will be filed with the minutes of the meetings of the Board.
VII.
Reports
The Compensation Committee will provide reports to the Board from time to time as appropriate, regarding recommendations of the Compensation Committee submitted to the Board for action, and copies of the written minutes of its meetings.
VII.
Funding of the Compensation Committee’s Functions
The Company shall provide appropriate funding (as determined by the Compensation Committee) for the Compensation Committee in its capacity as a committee of the Board in such amounts as determined by the Compensation Committee for the payment of reasonable compensation to a compensation consultant, independent legal counsel or any other adviser retained by the Compensation Committee.
2
FOR IMMEDIATE RELEASE
News
September 6, 2013
Nasdaq Capital Market - GTIM
Good Times Restaurants Announces the Nomination of Steven Johnson and Reuven Har-Even to Board of Directors
Denver, CO -- Good Times Restaurants Inc. (NASDAQ - GTIM), a regional restaurant company focused on operating and developing Good Times Burgers & Frozen Custard and Bad Daddy ’ s Burger Bar restaurants, today announced that Steven Johnson and Reuven Har-Even have been nominated by the Board of Directors of the Company to be elected as new members of the Board at the Annual Meeting of Stockholders scheduled to be held on September 27, 2013. They are intended to fill the Board vacancies created by Neil Calvert ’ s ceasing to be a Director and by the enlargement of the Board from seven members to eight.
Mr. Johnson, 54, was the Chief Executive Officer of F&H Acquisition Corp. from 2006 through 2012, which owns and operates the Champps, Fox & Hound, and Bailey ’ s restaurant concepts generating over $300 million in sales in 2012. Mr. Johnson currently serves on the board of directors of Pizza Inn, Inc. From 1999 to 2006, Mr. Johnson served as Chief Executive Officer of Fox & Hound Restaurant Group. From 1991 until 1998, Mr. Johnson was Chief Operating Officer for Coulter Enterprises, Inc., a Pizza Hut franchisee operating 100 Pizza Hut restaurants. From 1985 through 1990, he was Controller for Fugate Enterprises, Inc., a Pizza Hut, Taco Bell and Blockbuster Video franchisee. Previously, he was employed by the accounting firm of Ernst & Young. Mr. Johnson is a certified public accountant and is currently a Jimmy John ’ s franchisee in Oklahoma City.
Mr. Har-Even, 65, is currently an Executive Vice President and Chief Financial Officer of P&E Capital, Inc., a family office holding company. In addition to supervising, managing and guiding the portfolio companies, Mr. Har-Even evaluated and is currently evaluating numerous investment opportunities in the restaurant industry. From 2002 to 2005 Mr. Har-Even served as Executive Vice President and Chief Financial Officer of Tiffen Acquisition LLC, a photographic equipment manufacturer and distributor. From 2001 to 2002 Mr. Har-Even served as Chief Financial and Administrative Officer of The Goldman Group, a global holding company of six machine tool subsidiaries. From 1997 to 2001 Mr. Har-Even served as acting Chief Operating Officer and Chief Financial Officer of Hayward Industrial Products, Inc., a manufacturer of industrial filtration products. From 1987 to 1997 Mr. Har-Even served as the Chief Financial Officer of Hayward Industries, Inc., holding company of the largest swimming pool equipment manufacturer in North America. Prior to 1987 Mr. Har-Even was a partner at Grant Thornton, an international accounting and consulting firm.
"The election of Steve Johnson and Reuven Har-Even to our Board of Directors will be another key step forward for the Company. Steve has deep experience in the restaurant industry on the operating and financial sides of the business in both public and private company environments and he brings a wealth of knowledge and contacts that should be beneficial to our growth and development, ” said David Dobbin, Chairman of the Board. Dobbin added, “ Reuven is an experienced financial executive, having grown and monetized multiple companies with longstanding relationships in the investment community. We have a very highly qualified Board of Directors for a company of our size that can provide high quality governance and guidance as we accelerate our growth as a public company. ”
The Company also reported that due to illness Neil Calvert has ceased to be a member of the Board of Directors and to act as independent member and chairman of the Board ’ s Audit Committee. Alan Teran will act as interim head of the audit committee now consisting of himself and Gary Heller. A third independent Director will be added to the Audit Committee promptly after the September 27 Annual Meeting of Shareholders. Both Mr. Johnson and Mr. Har-Even will constitute independent Directors and their election will also cause the Company to again have a majority of independent directors. Prior to such Board additions the Company is not in compliance with Nasdaq requirements.
About Good Times Restaurants Inc.
Good Times Restaurants Inc. (GTIM) is a regional chain of quick service restaurants located primarily in Colorado providing a menu of high quality all natural hamburgers, 100% all natural chicken tenderloins, fresh frozen custard, fresh cut fries, fresh lemonades and other unique offerings. Good Times currently operates and franchises 38 restaurants.
Bad Daddy's Burger Bar is a full service, upscale, “ small box ” restaurant concept featuring a chef driven menu of gourmet signature burgers, chopped salads, appetizers and sandwiches with a full bar and a focus on a selection of craft microbrew beers in a high energy, family friendly atmosphere. Bad Daddy ’ s has received both local and national accolades for the quality and originality of its food and was most recently named a top 25 burger in the U.S. by USA Today.
Good Times Forward Looking Statements
This press release contains forward looking statements within the meaning of federal securities laws. The words “ intend, ” “ may, ” “ believe, ” “ will, ” “ should, ” “ anticipate, ” “ expect, ” “ seek ” and similar expressions are intended to identify forward looking statements. These statements involve known and unknown risks, which may cause Good Times ’ actual results to differ materially from results expressed or implied by the forward looking statements. These risks include such factors as the uncertain nature of current restaurant development plans and the ability to implement those plans, delays in developing and opening new restaurants because of weather, local permitting or other reasons, increased competition, cost increases or shortages in raw food products, and other matters discussed under the “ Risk Factors ” section of Good Times ’ Annual Report on Form 10-K for the fiscal year ended September 30, 2012 filed with the SEC. Although Good Times may from time to time voluntarily update its forward looking statements, it disclaims any commitment to do so except as required by securities laws.
INVESTOR RELATIONS CONTACTS:
Good Times Restaurants Inc.
Boyd E. Hoback, President and CEO, (303) 384-1411
Christi Pennington (303) 384-1440
Booke & Co. (admin@bookeandco.com)