As filed with the Securities and Exchange Commission
on June 7, 2024
Registration No. 333-[_____]
UNITED STATES
SECURITIES AND EXCHANGE
COMMISSION
WASHINGTON, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
The ONE Group Hospitality, Inc.
(Exact name of registrant
as specified in its charter)
| Delaware |
|
14-1961545 |
(State or other jurisdiction of
incorporation or organization) |
|
(I.R.S. Employer
Identification Number) |
1624 Market Street,
Suite 311
Denver, Colorado 80202
(646) 624-2400
(Address, including zip
code, and telephone number,
including area code, of registrant’s principal executive offices)
Emanuel Hilario
President and Chief
Executive Officer
1624 Market Street,
Suite 311
Denver, Colorado 80202
(646) 624-2400
(Name, address, including
zip code, and telephone number, including area code, of agent for service)
Copies to:
Steven H. Hull
William J. Goodling
Stoel Rives LLP
760 SW Ninth Avenue, Suite 3000
Portland, Oregon 97205
(503) 294-9122
Approximate date of commencement
of proposed sale to the public: From time to time after the effective date of this registration statement as determined by the registrant.
If the only securities
being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following
box: ¨
If any of the securities
being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities
Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box: x
If this Form is
filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the
following box and list the Securities Act registration statement number of the earlier effective registration statement for the same
offering. ¨
If this Form is
a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration statement for the same offering. ¨
If this Form is
a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon
filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. ¨
If this Form is
a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional securities
or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. ¨
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 |
x |
| Non-accelerated filer |
¨ |
Smaller reporting company |
x |
| |
|
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 Securities Act. ¨
The registrant hereby amends this registration
statement on such date or dates as may be necessary to delay its effective date until the registrant shall file a further amendment which
specifically states that the registration statement shall thereafter become effective in accordance with Section 8(a) of the
Securities Act of 1933 or until the registration statement shall become effective on such date as the Securities and Exchange Commission,
acting pursuant to said Section 8(a), may determine.
THE
INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. WE MAY NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED
WITH THE SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER TO SELL THESE SECURITIES AND IS NOT SOLICITING
AN OFFER TO BUY THESE SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
SUBJECT
TO COMPLETION, DATED June 7, 2024
PRELIMINARY PROSPECTUS
The ONE Group Hospitality, Inc.
$100,000,000
COMMON
STOCK
PREFERRED
STOCK
DEBT
SECURITIES
WARRANTS
RIGHTS
UNITS
This
prospectus will allow us to issue, from time to time at prices and on terms to be determined at or prior to the time of the offering,
up to $100,000,000 of any combination of the securities described in this prospectus, either individually or in units. We may also offer
common stock or preferred stock upon conversion of or exchange for the debt securities; common stock upon conversion of or exchange for
the preferred stock; or common stock, preferred stock or debt securities upon the exercise of warrants or rights.
This
prospectus describes the general terms of these securities and the general manner in which these securities will be offered. We will provide
you with the specific terms of any offering in one or more supplements to this prospectus. The prospectus supplements will also describe
the specific manner in which these securities will be offered and may also supplement, update or amend information contained in this document.
You should read this prospectus and any prospectus supplement, as well as any documents incorporated by reference into this prospectus
or any prospectus supplement, carefully before you invest.
Our
securities may be sold directly by us to you, through agents designated from time to time or through underwriters, broker-dealers, agents
or through other means. For additional information on the methods of sale, you should refer to the section entitled “Plan of Distribution”
in this prospectus and in the applicable prospectus supplement. If any underwriters or agents are involved in the sale of our securities
with respect to which this prospectus is being delivered, the names of such underwriters or agents and any applicable fees, commissions
or discounts and over-allotment options will be set forth in a prospectus supplement. The price to the public of such securities and the
net proceeds that we expect to receive from such sale will also be set forth in a prospectus supplement.
Our
common stock is listed on The Nasdaq Capital Market under the symbol “STKS.”
Investing in our securities
involves a high degree of risk. Before deciding whether to invest in our securities, you should consider carefully the risks that we have
described on page 3 of this prospectus under the caption “Risk Factors.” We may include specific risk factors in supplements
to this prospectus under the caption “Risk Factors.” This prospectus may not be used to sell our securities unless accompanied
by a prospectus supplement.
Neither
the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or determined
if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
The date of this prospectus
is June 7, 2024.
TABLE
OF CONTENTS
ABOUT
THIS PROSPECTUS
This
prospectus is part of a registration statement that we filed with the Securities and Exchange Commission, or SEC, using a “shelf”
registration process. Under this process, we may offer shares of our common stock and preferred stock, various series of debt securities
and/or warrants or rights to purchase any of such securities, either individually or in units, in one or more offerings, with a total
value of up to $100,000,000. This prospectus provides you with a general description of the securities we may offer. Each time we
offer a type or series of securities under this prospectus, we will provide a prospectus supplement that will contain specific information
about the terms of that offering.
This prospectus
does not contain all of the information included in the registration statement. For a more complete understanding of the offering of the
securities, you should refer to the registration statement, including its exhibits. The applicable prospectus supplement may also add,
update or change information contained or incorporated by reference in this prospectus. This prospectus, together with the applicable
prospectus supplements and the documents incorporated by reference into this prospectus, includes all material information relating to
the offering of securities under this prospectus. You should carefully read this prospectus, the applicable prospectus supplement, the
information and documents incorporated herein by reference and the additional information under the heading “Where You Can Find
More Information” before making an investment decision.
You
should rely only on the information we have provided or incorporated by reference in this prospectus or any prospectus supplement. We
have not authorized anyone to provide you with information different from that contained or incorporated by reference in this prospectus.
No dealer, salesperson or other person is authorized to give any information or to represent anything not contained or incorporated by
reference in this prospectus. You must not rely on any unauthorized information or representation. This prospectus is an offer to sell
only the securities offered hereby, but only under circumstances and in jurisdictions where it is lawful to do so. You should assume that
the information in this prospectus or any prospectus supplement is accurate only as of the date on the front of the document and that
any information we have incorporated herein by reference is accurate only as of the date of the document incorporated by reference, regardless
of the time of delivery of this prospectus or any sale of a security.
We
further note that the representations, warranties and covenants made by us in any agreement that is filed as an exhibit to any document
that is incorporated by reference in the accompanying prospectus were made solely for the benefit of the parties to such agreement, including,
in some cases, for the purpose of allocating risk among the parties to such agreements, and should not be deemed to be a representation,
warranty or covenant to you. Moreover, such representations, warranties or covenants were accurate only as of the date when made. Accordingly,
such representations, warranties and covenants should not be relied on as accurately representing the current state of our affairs.
Unless the context otherwise
required, “The ONE Group Hospitality,” “The ONE Group,” “the Company,” “we,” “us,”
“our” and similar terms refer to The ONE Group Hospitality, Inc. and its consolidated subsidiaries.
PROSPECTUS
SUMMARY
The
following is a summary of what we believe to be the most important aspects of our business and the offering of our securities under this
prospectus. We urge you to read this entire prospectus, including the more detailed consolidated financial statements, notes to the consolidated
financial statements and other information incorporated by reference from our other filings with the SEC or included in any applicable
prospectus supplement. Investing in our securities involves risks. Therefore, carefully consider the risk factors set forth beginning
on page 3 of this prospectus and in any prospectus supplements and in our most recent annual and quarterly filings with the SEC,
as well as other information in this prospectus and any prospectus supplements and the documents incorporated by reference herein or therein,
before purchasing our securities. Each of the risk factors could adversely affect our business, operating results and financial condition,
as well as adversely affect the value of an investment in our securities.
Overview
The ONE Group Hospitality, Inc.
is a global hospitality company that develops, owns and operates, manages and licenses upscale and polished casual, high-energy restaurants
and lounges and provides turn-key food and beverage (“F&B”) services for hospitality venues including hotels, casinos
and other high-end locations. Turn-key F&B services are food and beverage services that can be scaled, customized and implemented
by us for the client at a particular hospitality venue. Our vision is to be a global market leader in the hospitality industry by melding
high-quality service, ambiance, high-energy and cuisine into one great experience that we refer to as “Vibe Dining”. We design
all our restaurants, lounges and F&B services to create a social dining and high-energy entertainment experience within a destination
location. We believe that this design and operating philosophy separates us from more traditional restaurant and foodservice competitors.
Our primary restaurant brands
are:
| · | STK, a modern twist on the American steakhouse concept with restaurants in major metropolitan cities in
the U.S., Europe, and the Middle East, featuring premium steaks, seafood, and specialty cocktails in an energetic upscale atmosphere; |
| · | Benihana, a leading operator of highly differentiated experiential brands that owns the only national
teppanyaki brand in the US. The Company also franchises Benihanas in the U.S., Caribbean, Central America, and South America; |
| · | Kona Grill, a polished casual, bar-centric grill concept with restaurants in the U.S., featuring American
favorites, award-winning sushi, and specialty cocktails in an upscale casual atmosphere; and |
| · | RA Sushi, a Japanese cuisine concept that offers a fun-filled, bar-forward, upbeat, and vibrant dining
atmosphere with restaurants in the U.S. anchored by creative sushi, inventive drinks, and outstanding service. |
ONE Hospitality, our F&B
hospitality services business, develops, manages, and operates premier restaurants and turn-key food and beverage services within high-end
hotels and casinos currently operating venues in the U.S. and Europe. Our F&B hospitality clients operate global hospitality brands
such as the W Hotel, ME Hotel and Hippodrome Casino.
Additional Information
For
additional information related to our business and operations, please refer to the reports incorporated herein by reference, including
our Quarterly Report on Form 10-Q for the first quarter ended March 31, 2024 and Annual Report on Form 10-K for the year ended December 31, 2023, as described under the caption “Incorporation of Documents by Reference” beginning on page 20
of this prospectus.
Our Corporate Information
Our
principal office is located at 1624 Market Street, Suite 311, Denver, Colorado 80202, and our telephone number is (646) 624-2400.
Our website address is www.togrp.com. The information contained on, or that can be accessed through, our website is not a part of this
prospectus. We have included our website address in this prospectus solely as an inactive textual reference.
Our
Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q, Current Reports on Form 8-K and all amendments to those reports
filed or furnished pursuant to Section 13(a) or 15(d) of the Exchange Act are available free of charge through the investor
relations page of our internet website as soon as reasonably practicable after we electronically file such material with, or furnish
it to, the SEC.
All
brand names or trademarks appearing in this prospectus are the property of their respective holders. Use or display by us of other parties’
trademarks, trade dress, or products in this prospectus is not intended to, and does not, imply a relationship with, or endorsements or
sponsorship of, us by the trademark or trade dress owners.
We
are a “smaller reporting company” as defined in Rule 12b-2 of the Exchange Act and have elected to take advantage of
certain of the scaled disclosures available to smaller reporting companies.
Offerings Under This Prospectus
Under
this prospectus, we may offer shares of our common stock and preferred stock, various series of debt securities and/or warrants or rights
to purchase any of such securities, either individually or in units, with a total value of up to $100,000,000, from time to time at prices
and on terms to be determined by market conditions at the time of the offering. This prospectus provides you with a general description
of the securities we may offer. Each time we offer a type or series of securities under this prospectus, we will provide a prospectus
supplement that will describe the specific amounts, prices and other important terms of the securities, including, to the extent applicable:
| · | designation or classification; |
| · | aggregate principal amount or aggregate offering price; |
| · | maturity, if applicable; |
| · | rates and times of payment of interest or dividends, if any; |
| · | redemption, conversion or sinking fund terms, if any; |
| · | voting or other rights, if any; and |
| · | conversion or exercise prices, if any. |
The
prospectus supplement also may add, update or change information contained in this prospectus or in documents we have incorporated by
reference into this prospectus. However, no prospectus supplement will fundamentally change the terms that are set forth in this prospectus
or offer a security that is not registered and described in this prospectus at the time of its effectiveness.
We
may sell the securities directly to investors or through agents, underwriters or dealers. We, and our agents or underwriters, reserve
the right to accept or reject all or part of any proposed purchase of securities. If we offer securities through agents or underwriters,
we will include in the applicable prospectus supplement:
| · | the names of those agents or underwriters; |
| · | applicable fees, discounts and commissions to be paid to them; |
| · | details regarding over-allotment options, if any; and |
This
prospectus may not be used to consummate a sale of any securities unless it is accompanied by a prospectus supplement.
RISK FACTORS
Investing
in our securities involves significant risk. The prospectus supplement applicable to each offering of our securities will contain a discussion
of the risks applicable to an investment in The ONE Group Hospitality, Inc. Prior to making a decision about investing in our securities,
you should carefully consider the specific factors discussed under the heading “Risk Factors” in the applicable prospectus
supplement, together with all of the other information contained or incorporated by reference in the prospectus supplement or appearing
or incorporated by reference in this prospectus. You should also consider the risks, uncertainties and assumptions discussed under the
heading “Risk Factors” included in our most recent annual report on Form 10-K, as revised or supplemented by our subsequent
quarterly reports on Form 10-Q or our current reports on Form 8-K that we have filed with the SEC, all of which are incorporated
herein by reference, and which may be amended, supplemented or superseded from time to time by other reports we file with the SEC in the
future. The risks and uncertainties we have described are not the only ones we face. Additional risks and uncertainties not presently
known to us or that we currently deem immaterial may also affect our operations. The occurrence of any of these risks might cause you
to lose all or part of your investment in the offered securities.
RATIO
OF EARNINGS TO FIXED CHARGES
Any
time debt securities are offered pursuant to this prospectus, we will provide a table setting forth our ratio of earnings to fixed charges
on a historical basis in the applicable prospectus supplement, if required.
SPECIAL
NOTE REGARDING FORWARD-LOOKING STATEMENTS
This
prospectus and the documents incorporated by reference in this prospectus include forward-looking statements within the meaning of Section 27A
of the Securities Act of 1933, as amended (the “Securities Act”) and Section 21E of the Exchange Act that relate to future
events or our future financial performance and involve known and unknown risks, uncertainties and other factors that may cause our actual
results, levels of activity, performance or achievements to differ materially from any future results, levels of activity, performance
or achievements expressed or implied by these forward-looking statements. Words such as, but not limited to, “believe,” “expect,”
“anticipate,” “estimate,” “intend,” “may,” “plan,” “potential,”
“predict,” “project,” “targets,” “likely,” “will,” “would,” “could,”
“should,” “continue,” and similar expressions or phrases, or the negative of those expressions or phrases, are
intended to identify forward-looking statements, although not all forward-looking statements contain these identifying words. Although
we believe that we have a reasonable basis for each forward-looking statement contained in this prospectus and incorporated by reference
in this prospectus, we caution you that these statements are based on our projections of the future that are subject to known and unknown
risks and uncertainties and other factors that may cause our actual results, level of activity, performance or achievements expressed
or implied by these forward-looking statements, to differ. The sections in our periodic reports, including our Annual Report on Form 10-K
for the fiscal year ended December 31, 2023, entitled “Business,” “Risk Factors,” and “Management’s
Discussion and Analysis of Financial Condition and Results of Operations,” as well as other sections in this prospectus and the
documents or reports incorporated by reference in this prospectus, discuss some of the factors that could contribute to these differences.
These forward-looking statements include, among other things, statements about future economic performance, general economic conditions,
consumer preferences and spending, costs, competition, new product execution, restaurant openings or closings, operating margins, the
availability of acceptable real estate locations, the sufficiency of our cash balances and cash generated from operations and financing
activities for our future liquidity and capital resource needs, the impact on our business of Federal and State legislation and local
regulation, future litigation, the execution of our growth strategy and other matters.
We
may not actually achieve the plans, intentions or expectations disclosed in our forward-looking statements, and you should not place undue
reliance on our forward-looking statements. Actual results or events could differ materially from the plans, intentions and expectations
disclosed in the forward-looking statements we make. We have included important cautionary statements in this prospectus or in the documents
incorporated by reference in this prospectus, particularly in the “Risk Factors” section, that we believe could cause actual
results or events to differ materially from the forward-looking statements that we make. For a summary of such factors, please refer to
the section entitled “Risk Factors” in this prospectus, as updated and supplemented by the discussion of risks and uncertainties
under “Risk Factors” contained in any supplements to this prospectus and in our most recent annual report on Form 10-K,
as revised or supplemented by our subsequent quarterly reports on Form 10-Q or our current reports on Form 8-K, as well as any
amendments thereto, as filed with the SEC and which are incorporated herein by reference. The information contained in this document is
believed to be current as of the date of this document. We do not intend to update any of the forward-looking statements after the date
of this document to conform these statements to actual results or to changes in our expectations, except as required by law.
In
light of these assumptions, risks and uncertainties, the results and events discussed in the forward-looking statements contained in this
prospectus or in any document incorporated herein by reference might not occur. Investors are cautioned not to place undue reliance on
the forward-looking statements, which speak only as of the date of this prospectus or the date of the document incorporated by reference
in this prospectus. We are not under any obligation, and we expressly disclaim any obligation, to update or alter any forward-looking
statements, whether as a result of new information, future events or otherwise. All subsequent forward-looking statements attributable
to us or to any person acting on our behalf are expressly qualified in their entirety by the cautionary statements contained or referred
to in this section.
USE OF
PROCEEDS
Unless
otherwise indicated in the applicable prospectus supplement, we intend to use any net proceeds from the sale of securities under this
prospectus for general corporate purposes, including, but not limited to, working capital, capital expenditures, repayment of any existing
indebtedness, investments and acquisitions. We have not determined the amounts we plan to spend on any of the areas listed above or the
timing of these expenditures. As a result, our management will have broad discretion to allocate the net proceeds, if any, we receive
in connection with securities offered pursuant to this prospectus for any purpose. Pending application of the net proceeds as described
above, we may initially invest the net proceeds in short-term, investment-grade, interest-bearing securities or apply them to the reduction
of short-term indebtedness.
PLAN OF
DISTRIBUTION
We
may offer securities under this prospectus from time to time pursuant to underwritten public offerings, negotiated transactions, block
trades or a combination of these methods. We may sell the securities (1) through underwriters or dealers, (2) through agents
or (3) directly to one or more purchasers, or through a combination of such methods. We may distribute the securities from time to
time in one or more transactions at:
| · | a fixed price or prices, which may be changed from time to time; |
| · | market prices prevailing at the time of sale; |
| · | prices related to the prevailing market prices; or |
We
may directly solicit offers to purchase the securities being offered by this prospectus. We may also designate agents to solicit offers
to purchase the securities from time to time and may enter into arrangements for “at-the-market,” equity line or similar transactions.
We will name in a prospectus supplement any underwriter or agent involved in the offer or sale of the securities.
If
we utilize a dealer in the sale of the securities being offered by this prospectus, we will sell the securities to the dealer, as principal.
The dealer may then resell the securities to the public at varying prices to be determined by the dealer at the time of resale.
If
we utilize an underwriter in the sale of the securities being offered by this prospectus, we will execute an underwriting agreement with
the underwriter at the time of sale, and we will provide the name of any underwriter in the prospectus supplement which the underwriter
will use to make resales of the securities to the public. In connection with the sale of the securities, we, or the purchasers of the
securities for whom the underwriter may act as agent, may compensate the underwriter in the form of underwriting discounts or commissions.
The underwriter may sell the securities to or through dealers, and the underwriter may compensate those dealers in the form of discounts,
concessions or commissions.
With
respect to underwritten public offerings, negotiated transactions and block trades, we will provide in the applicable prospectus supplement
information regarding any compensation we pay to underwriters, dealers or agents in connection with the offering of the securities, and
any discounts, concessions or commissions allowed by underwriters to participating dealers. Underwriters, dealers and agents participating
in the distribution of the securities may be deemed to be underwriters within the meaning of the Securities Act, and any discounts and
commissions received by them and any profit realized by them on resale of the securities may be deemed to be underwriting discounts and
commissions. We may enter into agreements to indemnify underwriters, dealers and agents against civil liabilities, including liabilities
under the Securities Act, or to contribute to payments they may be required to make in respect thereof.
If
so indicated in the applicable prospectus supplement, we will authorize underwriters, dealers or other persons acting as our agents to
solicit offers by certain institutions to purchase securities from us pursuant to delayed delivery contracts providing for payment and
delivery on the date stated in each applicable prospectus supplement. Each contract will be for an amount not less than, and the aggregate
amount of securities sold pursuant to such contracts shall not be less nor more than, the respective amounts stated in each applicable
prospectus supplement. Institutions with whom the contracts, when authorized, may be made include commercial and savings banks, insurance
companies, pension funds, investment companies, educational and charitable institutions and other institutions, but shall in all cases
be subject to our approval. Delayed delivery contracts will not be subject to any conditions except that:
| · | the purchase by an institution of the securities covered under that contract shall not at the time of
delivery be prohibited under the laws of the jurisdiction to which that institution is subject; and |
| · | if the securities are also being sold to underwriters acting as principals for their own account, the
underwriters shall have purchased such securities not sold for delayed delivery. The underwriters and other persons acting as our agents
will not have any responsibility in respect of the validity or performance of delayed delivery contracts. |
One
or more firms, referred to as “remarketing firms,” may also offer or sell the securities, if a prospectus supplement so indicates,
in connection with a remarketing arrangement upon their purchase. Remarketing firms will act as principals for their own accounts or as
our agents. These remarketing firms will offer or sell the securities in accordance with the terms of the securities. Each prospectus
supplement will identify and describe any remarketing firm and the terms of its agreement, if 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 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.
Certain
underwriters may use this prospectus and any accompanying prospectus supplement for offers and sales related to market-making transactions
in the securities. These underwriters may act as principal or agent in these transactions, and the sales will be made at prices related
to prevailing market prices at the time of sale. Any underwriters involved in the sale of the securities may qualify as “underwriters”
within the meaning of Section 2(a)(11) of the Securities Act. In addition, the underwriters’ commissions, discounts or concessions
may qualify as underwriters’ compensation under the Securities Act and the rules of the Financial Industry Regulatory Authority, Inc.,
or FINRA.
Shares
of our common stock sold pursuant to the registration statement of which this prospectus is a part will be authorized for quotation and
trading on the Nasdaq Capital Market. The applicable prospectus supplement will contain information, where applicable, as to any other
listing, if any, on any securities market or other securities exchange of the securities covered by the prospectus supplement. Underwriters
may make a market in our common stock, but will not be obligated to do so and may discontinue any market making at any time without notice.
We can make no assurance as to the liquidity of or the existence, development or maintenance of trading markets for any of the securities.
In
order to facilitate the offering of the securities, certain persons participating in the offering may engage in transactions that stabilize,
maintain or otherwise affect the price of the securities. This may include over-allotments or short sales of the securities, which involve
the sale by persons participating in the offering of more securities than we sold to them. In these circumstances, these persons would
cover such over-allotments or short positions by making purchases in the open market or by exercising their over-allotment option. In
addition, these persons may stabilize or maintain the price of the securities by bidding for or purchasing the applicable security in
the open market or by imposing penalty bids, whereby selling concessions allowed to dealers participating in the offering may be reclaimed
if the securities sold by them are repurchased in connection with stabilization transactions. The effect of these transactions may be
to stabilize or maintain the market price of the securities at a level above that which might otherwise prevail in the open market. These
transactions may be discontinued at any time.
The
underwriters, dealers and agents may engage in other transactions with us, or perform other services for us, in the ordinary course of
their business.
DESCRIPTION
OF COMMON STOCK
We
are authorized to issue 75,000,000 shares of common stock, par value $0.0001 per share. On May 31, 2024,
we had 31,488,835 shares of common stock outstanding and approximately 70 stockholders of
record.
The
following summary of certain provisions of our common stock does not purport to be complete. You should refer to our amended and restated
certificate of incorporation, our certificate of designations of Series A preferred stock and our bylaws, all of which are included
as exhibits to the registration statement of which this prospectus is a part. The summary below is also qualified by provisions of applicable
law.
General
Common
stockholders of record are entitled to one vote for each share held on all matters to be voted on by stockholders. Our amended and restated
certificate of incorporation does not provide for cumulative voting. The holders of our common stock are entitled to receive ratably such
dividends, if any, as may be declared by the board of directors out of legally available funds, subject to any preferential dividend rights
of any series of preferred stock that are currently outstanding and as we may designate and issue in the future. All shares of common
stock outstanding as of the date of this prospectus and, upon issuance and sale, all shares of common stock that we may offer pursuant
to this prospectus, will be fully paid and nonassessable.
Our
board of directors is divided into three classes, each of which will generally serve for a term of three years with only one class of
directors being elected in each year. There is noncumulative voting with respect to the election of directors, with the result that the
holders of more than 50% of the shares of common stock eligible to vote for the election of directors can elect all of the directors.
In
the event of a liquidation, dissolution or winding up of the company, our stockholders are entitled to share ratably in all assets remaining
available for distribution to them after payment of liabilities and after provision is made for each class of stock having preference
over the common stock. Our common stockholders have no preemptive or other subscription rights. There are no sinking fund provisions applicable
to the common stock. The rights, preferences and privileges of holders of common stock are subject to and may be adversely affected by
the rights of the holders of shares of any series of preferred stock that is currently outstanding and which we may designate and issue
in the future.
Transfer Agent and Registrar
The
transfer agent and registrar for our common stock is Continental Stock Transfer & Trust Company, 1 State Street, 30th
Floor, New York, New York 10004-1561.
Stock Exchange Listing
Our common
stock is listed for trading on The Nasdaq Capital Market under the symbol “STKS.”
DESCRIPTION
OF PREFERRED STOCK
We
are authorized to issue 10,000,000 shares of preferred stock, par value $0.0001 per share. As of the date of this prospectus, 160,000
shares of our Series A preferred stock are issued and outstanding.
The
following summary of certain provisions of our preferred stock does not purport to be complete. You should refer to our amended and restated
certificate of incorporation, our certificate of designations of Series A preferred stock and our bylaws and an investment agreement
to which we are a party, all of which are included as exhibits to the registration statement of which this prospectus is a part. The summary
below is also qualified by provisions of applicable law.
General
Our
Series A preferred stock is non-voting and non-convertible. Our Series A preferred stock has compounding dividends that begin
at a rate of 13.0% per annum and increase over time at specified intervals under its certificate of designations. Our Series A preferred
stock is subject to optional redemption by us and mandatory redemption following specified events and in certain circumstances upon the
exercise by the holders of a majority of the outstanding shares of Series A preferred stock of an option to deliver written notice
to us to require redemption, in each case, for specified prices set forth in its certificate of designation. Our Series A preferred
stock grants consent rights to the holders of a majority of the outstanding shares of Series A preferred stock for specified matters
as set forth in its certificate of designations.
The
holders of our currently issued and outstanding Series A preferred stock have further rights relating to their Series A preferred
stock under such investment agreement. This includes that specified investors currently holding a majority of our issued and outstanding
Series A preferred stock currently have the right to designate two directors for nomination to our board of directors, among other
matters.
Subject
to the terms of our certificate of designations of Series A preferred stock, in the future 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 rights, preferences and limitations of each series, including voting rights, dividend rights and redemption and liquidation
preferences. 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 any liquidation, dissolution or winding-up of our company before any payment is made to the holders of shares
of our common stock. In some 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. Subject to the terms of our certificate of designations of Series A preferred stock, upon the affirmative vote of our
board of directors, without stockholder approval, we may issue shares of preferred stock with voting and conversion rights which could
adversely affect the holders of shares of our common stock.
If
we offer a specific series of preferred stock under this prospectus, we will describe the terms of the preferred stock in the prospectus
supplement for such offering and will file a copy of the certificate establishing the terms of the preferred stock with the SEC. To the
extent required, this description will include:
| · | the title and stated value; |
| · | the number of shares offered, the liquidation preference, if any, per share and the purchase price; |
| · | the dividend rate(s), period(s) and/or payment date(s), or method(s) of calculation for such
dividends; |
| · | whether dividends will be cumulative or non-cumulative and, if cumulative, the date from which dividends
will accumulate; |
| · | the procedures for any auction and remarketing, if any; |
| · | the provisions for a sinking fund, if any; |
| · | the provisions for redemption, if applicable; |
| · | any listing of the preferred stock on any securities exchange or market; |
| · | whether the preferred stock will be convertible into our common stock, and, if applicable, the conversion
price (or how it will be calculated) and conversion period; |
| · | whether the preferred stock will be exchangeable into debt securities, and, if applicable, the exchange
price (or how it will be calculated) and exchange period; |
| · | voting rights, if any, of the preferred stock; |
| · | a discussion of any material and/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 liquidation,
dissolution or winding up of the affairs of the Company; and |
| · | any material limitations on issuance of any class or series of preferred stock ranking pari passu with
or senior to the series of preferred stock as to dividend rights and rights upon liquidation, dissolution or winding up of the Company. |
Transfer Agent and Registrar
The
transfer agent and registrar for our Series A preferred stock is Continental Stock Transfer & Trust Company, 1 State Street,
30th Floor, New York, New York 10004-1561. The transfer agent and registrar for any further series of preferred stock will
be set forth in the applicable prospectus supplement.
No Stock Exchange Listing
Our Series A
preferred stock is not listed on any securities exchange or traded on any public market.
DESCRIPTION
OF DEBT SECURITIES
The
following description, together with the additional information we include in any applicable prospectus supplements, summarizes the material
terms and provisions of the debt securities that we may offer under this prospectus. While the terms we have summarized below will apply
generally to any future debt securities we may offer pursuant to this prospectus, we will describe the particular terms of any debt securities
that we may offer in more detail in the applicable prospectus supplement. If we so indicate in a prospectus supplement, the terms of any
debt securities offered under such prospectus supplement may differ from the terms we describe below, and to the extent the terms set
forth in a prospectus supplement differ from the terms described below, the terms set forth in the prospectus supplement shall control.
We
may sell from time to time, in one or more offerings under this prospectus, debt securities, which may be senior or subordinated. We will
issue any such senior debt securities under a senior indenture that we will enter into with a trustee to be named in the senior indenture.
We will issue any such subordinated debt securities under a subordinated indenture, which we will enter into with a trustee to be named
in the subordinated indenture. We have filed forms of these documents as exhibits to the registration statement, of which this prospectus
is a part. We use the term “indentures” to refer to either the senior indenture or the subordinated indenture, as applicable.
The indentures will be qualified under the Trust Indenture Act of 1939, as in effect on the date of the indenture. We use the term “debenture
trustee” to refer to either the trustee under the senior indenture or the trustee under the subordinated indenture, as applicable.
The
following summaries of material provisions of the senior debt securities, the subordinated debt securities and the indentures are subject
to, and qualified in their entirety by reference to, all the provisions of the indenture applicable to a particular series of debt securities.
General
Each
indenture provides that debt securities may be issued from time to time in one or more series and may be denominated and payable in foreign
currencies or units based on or relating to foreign currencies. Neither indenture limits the amount of debt securities that may be issued
thereunder, and each indenture provides that the specific terms of any series of debt securities shall be set forth in, or determined
pursuant to, an authorizing resolution and/or a supplemental indenture, if any, relating to such series.
We
will describe in each prospectus supplement the following terms relating to a series of debt securities:
| · | the title or designation; |
| · | the aggregate principal amount and any limit on the amount that may be issued; |
| · | the currency or units based on or relating to currencies in which debt securities of such series are denominated
and the currency or units in which principal or interest or both will or may be payable; |
| · | whether we will issue the series of debt securities in global form, the terms of any global securities
and who the depositary will be; |
| · | the maturity date and the date or dates on which principal will be payable; |
| · | the interest rate, which may be fixed or variable, or the method for determining the rate and the date
interest will begin to accrue, the date or dates interest will be payable and the record dates for interest payment dates or the method
for determining such dates; |
| · | whether or not the debt securities will be secured or unsecured, and the terms of any secured debt; |
| · | the terms of the subordination of any series of subordinated debt; |
| · | the place or places where payments will be payable; |
| · | our right, if any, to defer payment of interest and the maximum length of any such deferral period; |
| · | the date, if any, after which, and the price at which, we may, at our option, redeem the series of debt
securities pursuant to any optional redemption provisions; |
| · | the date, if any, on which, and the price at which we are obligated, pursuant to any mandatory sinking
fund provisions or otherwise, to redeem, or at the holder’s option to purchase, the series of debt securities; |
| · | whether the indenture will restrict our ability to pay dividends, or will require us to maintain any asset
ratios or reserves; |
| · | whether we will be restricted from incurring any additional indebtedness; |
| · | a discussion of any material or special U.S. federal income tax considerations applicable to a series
of debt securities; |
| · | the denominations in which we will issue the series of debt securities, if other than denominations of
$1,000 and any integral multiple thereof; and |
| · | any other specific terms, preferences, rights or limitations of, or restrictions on, the debt 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.
Conversion or Exchange Rights
We
will set forth in the prospectus supplement the terms, if any, on which a series of debt securities may be convertible into or exchangeable
for our common stock or our other securities. We will include provisions as to whether conversion or exchange is mandatory, at the option
of the holder or at our option. We may include provisions pursuant to which the number of shares of our common stock or our other securities
that the holders of the series of debt securities receive would be subject to adjustment.
Consolidation, Merger or Sale; No Protection in Event of a Change
of Control or Highly Leveraged Transaction
The
indentures do not contain any covenant that restricts our ability to merge or consolidate, or sell, convey, transfer or otherwise dispose
of all or substantially all of our assets. However, any successor to or acquirer of such assets must assume all of our obligations under
the indentures or the debt securities, as appropriate.
Unless
we state otherwise in the applicable prospectus supplement, the debt securities will not contain any provisions that may afford holders
of the debt securities protection in the event we have a change of control or in the event of a highly leveraged transaction (whether
or not such transaction results in a change of control), which could adversely affect holders of debt securities.
Events of Default Under the Indenture
The
following are events of default under the indentures with respect to any series of debt securities that we may issue:
| · | if we fail to pay interest when due and our failure continues for 90 days and the time for payment has
not been extended or deferred; |
| · | if we fail to pay the principal, or premium, if any, when due and the time for payment has not been extended
or delayed; |
| · | if we fail to observe or perform any other covenant set forth in the debt securities of such series or
the applicable indentures, other than a covenant specifically relating to and for the benefit of holders of another series of debt securities,
and our failure continues for 90 days after we receive written notice from the debenture trustee or holders of not less than a majority
in aggregate principal amount of the outstanding debt securities of the applicable series; and |
| · | if specified events of bankruptcy, insolvency or reorganization occur as to us. |
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 an event of default
may constitute an event of default under any bank credit agreements we may have in existence from time to time. In addition, the occurrence
of certain events of default or an acceleration under the indenture may constitute an event of default under certain of our other indebtedness
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 a majority in principal amount of the outstanding debt securities of that series may, by a notice in writing
to us (and to the debenture trustee if given by the holders), declare to be due and payable immediately the principal (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)
of and premium and accrued and unpaid interest, if any, on all debt securities of that series. Before a judgment or decree for payment
of the money due has been obtained with respect to debt securities of any series, the holders of a majority in principal amount of the
outstanding debt securities of that series (or, at a meeting of holders of such series at which a quorum is present, the holders of a
majority in principal amount of the debt securities of such series represented at such meeting) may rescind and annul the acceleration
if all events of default, other than the non-payment of accelerated principal, premium, if any, and interest, if any, with respect to
debt securities of that series, have been cured or waived as provided in the applicable indenture (including payments or deposits in respect
of principal, premium or interest that had become due other than as a result of such acceleration). 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.
Subject
to the terms of the indentures, if an event of default under an indenture shall occur and be continuing, the debenture trustee will be
under no obligation to exercise any of its rights or powers under such indenture at the request or direction of any of the holders of
the applicable series of debt securities, unless such holders have offered the debenture trustee reasonable indemnity. 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 debenture trustee, or exercising any trust or power conferred on the debenture
trustee, with respect to the debt securities of that series, provided that:
| · | the direction so given by the holders is not in conflict with any law or the applicable indenture; and |
| · | subject to its duties under the Trust Indenture Act, the debenture trustee need not take any action that
might involve it in personal liability or might be unduly prejudicial to the holders not involved in the proceeding. |
A
holder of the debt securities of any series will only have the right to institute a proceeding under the indentures or to appoint a receiver
or trustee, or to seek other remedies if:
| · | the holder previously has given written notice to the debenture trustee of a continuing event of default
with respect to that series; |
| · | the holders of at least a majority in aggregate principal amount of the outstanding debt securities of
that series have made written request, and such holders have offered reasonable indemnity to the debenture trustee to institute the proceeding
as trustee; and |
| · | the debenture trustee does not institute the proceeding, and does not receive from the holders of a majority
in aggregate principal amount of the outstanding debt securities of that series (or at a meeting of holders of such series at which a
quorum is present, the holders of a majority in principal amount of the debt securities of such series represented at such meeting) other
conflicting directions within 60 days after the notice, request and offer. |
These
limitations do not apply to a suit instituted by a holder of debt securities if we default in the payment of the principal, premium, if
any, or interest on, the debt securities.
We
will periodically file statements with the applicable debenture trustee regarding our compliance with specified covenants in the applicable
indenture.
Modification of Indenture; Waiver
The
debenture trustee and we may change the applicable indenture without the consent of any holders with respect to specific matters, including:
| · | to fix any ambiguity, defect or inconsistency in the indenture; and |
| · | to change anything that does not materially adversely affect the interests of any holder of debt securities
of any series issued pursuant to such indenture. |
In
addition, under the indentures, the rights of holders of a series of debt securities may be changed by us and the debenture trustee with
the written consent of the holders of at least a majority in aggregate principal amount of the outstanding debt securities of each series
(or, at a meeting of holders of such series at which a quorum is present, the holders of a majority in principal amount of the debt securities
of such series represented at such meeting) that is affected. However, the debenture trustee and we may make the following changes only
with the consent of each holder of any outstanding debt securities affected:
| · | extending the fixed maturity of the series of debt securities; |
| · | reducing the principal amount, reducing the rate of or extending the time of payment of interest, or any
premium payable upon the redemption of any debt securities; |
| · | reducing the principal amount of discount securities payable upon acceleration of maturity; |
| · | making the principal of or premium or interest on any debt security payable in currency other than that
stated in the debt security; or |
| · | reducing the percentage of debt securities, the holders of which are required to consent to any amendment
or waiver. |
Except
for certain specified provisions, the holders of at least a majority in principal amount of the outstanding debt securities of any series
(or, at a meeting of holders of such series at which a quorum is present, the holders of a majority in principal amount of the debt securities
of such series represented at such meeting) 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 or in respect
of a covenant or provision, which cannot be modified or amended without the consent of the holder of each outstanding debt security of
the series affected; 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.
Discharge
Each
indenture provides that we can elect to be discharged from our obligations with respect to one or more series of debt securities, except
for obligations to:
| · | the transfer or exchange of debt securities of the series; |
| · | replace stolen, lost or mutilated debt securities of the series; |
| · | maintain paying agencies; |
| · | hold monies for payment in trust; |
| · | compensate and indemnify the trustee; and |
| · | appoint any successor trustee. |
In
order to exercise our rights to be discharged with respect to a series, we must deposit with the trustee money or government obligations
sufficient to pay all the principal of, the premium, if any, and interest on, the debt securities of the series on the dates payments
are due.
Form, Exchange, and Transfer
We
will issue the debt securities of each series only in fully registered form without coupons and, unless we otherwise specify in the applicable
prospectus supplement, in denominations of $1,000 and any integral multiple thereof. The indentures provide that we may issue debt securities
of a series in temporary or permanent global form and as book-entry securities that will be deposited with, or on behalf of, The Depository
Trust Company or another depositary named by us and identified in a prospectus supplement with respect to that series.
At
the option of the holder, subject to the terms of the indentures and the limitations applicable to global securities described in the
applicable prospectus supplement, the holder of the debt securities of any series can exchange the debt securities for other debt securities
of the same series, in any authorized denomination and of like tenor and aggregate principal amount.
Subject
to the terms of the indentures and the limitations applicable to global securities set forth in the applicable prospectus supplement,
holders of the debt securities may present the debt securities for exchange or for registration of transfer, duly endorsed or with the
form of transfer endorsed thereon duly executed if so required by us or the security registrar, at the office of the security registrar
or at the office of any transfer agent designated by us for this purpose. Unless otherwise provided in the debt securities that the holder
presents for transfer or exchange or in the applicable indenture, we will make no service charge for any registration of transfer or exchange,
but we may require payment of any taxes or other governmental charges.
We
will name in the applicable prospectus supplement the security registrar, and any transfer agent in addition to the security registrar,
that we initially designate for any debt securities. We may at any time designate additional transfer agents or rescind the designation
of any transfer agent or approve a change in the office through which any transfer agent acts, except that we will be required to maintain
a transfer agent in each place of payment for the debt securities of each series.
If
we elect to redeem the debt securities of any series, we will not be required to:
| · | issue, register the transfer of, or exchange any debt securities of that series during a period beginning
at the opening of business 15 days before the day of mailing of a notice of redemption of any debt securities that may be selected for
redemption and ending at the close of business on the day of the mailing; or |
| · | register the transfer of or exchange any debt securities so selected for redemption, in whole or in part,
except the unredeemed portion of any debt securities we are redeeming in part. |
Information Concerning the Debenture Trustee
The
debenture trustee, other than during the occurrence and continuance of an event of default under the applicable indenture, undertakes
to perform only those duties as are specifically set forth in the applicable indenture. Upon an event of default under an indenture, the
debenture trustee under such indenture must use the same degree of care as a prudent person would exercise or use in the conduct of his
or her own affairs. Subject to this provision, the debenture trustee is under no obligation to exercise any of the powers given it by
the indentures at the request of any holder of debt securities unless it is offered reasonable security and indemnity against the costs,
expenses and liabilities that it might incur.
Payment and Paying Agents
Unless
we otherwise indicate in the applicable prospectus supplement, we will make payment of the interest on any debt securities on any interest
payment date to the person in whose name the debt securities, or one or more predecessor securities, are registered at the close of business
on the regular record date for the interest.
We
will pay principal of and any premium and interest on the debt securities of a particular series at the office of the paying agents designated
by us, except that unless we otherwise indicate in the applicable prospectus supplement, will we make interest payments by check which
we will mail to the holder. Unless we otherwise indicate in a prospectus supplement, we will designate the corporate trust office of the
debenture trustee in the City of New York as our sole paying agent for payments with respect to debt securities of each series. We will
name in the applicable prospectus supplement any other paying agents that we initially designate for the debt securities of a particular
series. We will maintain a paying agent in each place of payment for the debt securities of a particular series.
All
money we pay to a paying agent or the debenture trustee for the payment of the principal of or any premium or interest on any debt securities
which remains unclaimed at the end of two years after such principal, premium or interest has become due and payable will be repaid to
us, and the holder of the security thereafter may look only to us for payment thereof.
Governing Law
The
indentures and the debt securities will be governed by and construed in accordance with the laws of the State of New York, except to the
extent that the Trust Indenture Act is applicable.
Subordination of Subordinated Debt Securities
Our
obligations pursuant to any subordinated debt securities will be unsecured and will be subordinate and junior in priority of payment to
certain of our other indebtedness to the extent described in a prospectus supplement. The subordinated indenture does not limit the amount
of senior indebtedness we may incur. It also does not limit us from issuing any other secured or unsecured debt.
DESCRIPTION
OF WARRANTS
General
We
may issue warrants to purchase shares of our common stock, preferred stock and/or debt securities in one or more series together with
other securities or separately, as described in the applicable prospectus supplement. Below is a description of certain general terms
and provisions of the warrants that we may offer. Particular terms of the warrants will be described in the warrant agreements and the
prospectus supplement relating to the warrants.
The
applicable prospectus supplement will contain, where applicable, the following terms of and other information relating to the warrants:
| · | the specific designation and aggregate number of, and the price at which we will issue, the warrants; |
| · | the currency or currency units in which the offering price, if any, and the exercise price are payable; |
| · | the designation, amount and terms of the securities purchasable upon exercise of the warrants; |
| · | if applicable, the exercise price for shares of our common stock and the number of shares of common stock
to be received upon exercise of the warrants; |
| · | if applicable, the exercise price for shares of our preferred stock, the number of shares of preferred
stock to be received upon exercise, and a description of that series of our preferred stock; |
| · | if applicable, the exercise price for our debt securities, the amount of debt securities to be received
upon exercise, and a description of that series of debt securities; |
| · | the date on which the right to exercise the warrants will begin and the date on which that right will
expire or, if you may not continuously exercise the warrants throughout that period, the specific date or dates on which you may exercise
the warrants; |
| · | whether the warrants will be issued in fully registered form or bearer form, in definitive or global form
or in any combination of these forms, although, in any case, the form of a warrant included in a unit will correspond to the form of the
unit and of any security included in that unit; |
| · | any applicable material U.S. federal income tax consequences; |
| · | the identity of the warrant agent for the warrants and of any other depositaries, execution or paying
agents, transfer agents, registrars or other agents; |
| · | the proposed listing, if any, of the warrants or any securities purchasable upon exercise of the warrants
on any securities exchange; |
| · | if applicable, the date from and after which the warrants and the common stock, preferred stock and/or
debt securities will be separately transferable; |
| · | if applicable, the minimum or maximum amount of the warrants that may be exercised at any one time; |
| · | information with respect to book-entry procedures, if any; |
| · | the anti-dilution provisions of the warrants, if any; |
| · | any redemption or call provisions; |
| · | whether the warrants may be sold separately or with other securities as parts of units; and |
| · | any additional terms of the warrants, including terms, procedures and limitations relating to the exchange
and exercise of the warrants. |
Exercise of Warrants
Each warrant will entitle
the holder to purchase for cash or other consideration such shares of our capital stock at such exercise price as shall be in each case
be set forth in, or be determinable as set forth in, the prospectus supplement relating to the warrants offered thereby. Warrants may
be exercised at any time up to the close of business on the expiration date set forth in the prospectus supplement relating to the warrants
offered thereby. After the close of business on the expiration date, unexercised warrants will become void.
The warrants may be exercised
as set forth in the prospectus supplement relating to the warrants offered. Upon receipt of payment and the warrant certificate properly
completed and duly executed at the corporate trust office of the warrant agent or any other office indicated in the prospectus supplement,
we will, as soon as practicable, forward the shares of our common stock and/or our preferred stock purchasable upon such exercise. If
less than all of the warrants represented by such warrant certificate are exercised, a new warrant certificate will be issued for the
remaining warrants.
Warrant Agent
The name and address of the
warrant agent for any warrants we offer will be set forth in the applicable prospectus supplement.
Enforceability of Rights by Holders of Warrants
If
we appoint a warrant agent, any warrant agent will act solely as our agent under the applicable warrant agreement and will not assume
any obligation or relationship of agency or trust with any holder of any warrant. A single bank or trust company may act as warrant agent
for more than one issue of warrants. A warrant agent will have no duty or responsibility in case of any default by us under the applicable
warrant agreement or warrant, including any duty or responsibility to initiate any proceedings at law or otherwise, or to make any demand
upon us. Any holder of a warrant may, without the consent of the related warrant agent or the holder of any other warrant, enforce by
appropriate legal action its right to exercise, and receive the securities purchasable upon exercise of, its warrants.
Outstanding Warrants
As
of June 7, 2024, we had outstanding Class A warrants to acquire 1,905,687 shares of our common stock for $0.01 per share (in
each case, subject to adjustment from time to time in accordance with the applicable warrant certificates). Such Class A warrants
will expire at the close of business on May 1, 2034.
As
of June 7, 2024, we had outstanding Class B warrants to acquire 1,066,667 shares of our common stock for $10.00 per share (in
each case, subject to adjustment from time to time in accordance with the applicable warrant certificates). Such Class B warrants
will expire at the close of business on May 1, 2029.
The
foregoing summary of certain provisions of our outstanding warrants does not purport to be complete. A copy of each such warrant certificate
is included as exhibits to the registration statement of which this prospectus is a part and is incorporated by reference.
DESCRIPTION
OF RIGHTS
General
We
may issue rights to our stockholders to purchase shares of our common stock, preferred stock or the other securities described in this
prospectus. We may offer rights separately or together with one or more additional rights, debt securities, preferred stock, common stock
or warrants, or any combination of those securities in the form of units, as described in the applicable prospectus supplement. Each series
of rights will be issued under a separate rights agreement to be entered into between us and a bank or trust company, as rights agent.
The rights agent will act solely as our agent in connection with the certificates relating to the rights of the series of certificates
and will not assume any obligation or relationship of agency or trust for or with any holders of rights certificates or beneficial owners
of rights. The following description sets forth certain general terms and provisions of the rights to which any prospectus supplement
may relate. The particular terms of the rights to which any prospectus supplement may relate and the extent, if any, to which the general
provisions may apply to the rights so offered will be described in the applicable prospectus supplement. To the extent that any particular
terms of the rights, rights agreement or rights certificates described in a prospectus supplement differ from any of the terms described
below, then the terms described below will be deemed to have been superseded by that prospectus supplement. We encourage you to read the
applicable rights agreement and rights certificate for additional information before you decide whether to purchase any of our rights.
We
will provide in a prospectus supplement the following terms of the rights being issued:
| · | the date of determining the stockholders entitled to the rights distribution; |
| · | the aggregate number of shares of common stock, preferred stock or other securities purchasable upon exercise
of the rights; |
| · | the aggregate number of rights issued; |
| · | whether the rights are transferrable and the date, if any, on and after which the rights may be separately
transferred; |
| · | the date on which the right to exercise the rights will commence, and the date on which the right to exercise
the rights will expire; |
| · | the method by which holders of rights will be entitled to exercise; |
| · | the conditions to the completion of the offering, if any; |
| · | the withdrawal, termination and cancellation rights, if any; |
| · | whether there are any backstop or standby purchaser or purchasers and the terms of their commitment, if
any; |
| · | whether stockholders are entitled to oversubscription rights, if any; |
| · | any applicable material U.S. federal income tax considerations; and |
| · | any other terms of the rights, including terms, procedures and limitations relating to the distribution,
exchange and exercise of the rights, as applicable. |
Each
right will entitle the holder of rights to purchase for cash the principal amount of shares of common stock, preferred stock or other
securities at the exercise price provided in the applicable prospectus supplement. Rights may be exercised at any time up to the close
of business on the expiration date for the rights provided in the applicable prospectus supplement.
Holders
may exercise rights as described in the applicable prospectus supplement. Upon receipt of payment and the rights certificate properly
completed and duly executed at the corporate trust office of the rights agent or any other office indicated in the prospectus supplement,
we will, as soon as practicable, forward the shares of common stock, preferred stock or other securities, as applicable, purchasable upon
exercise of the rights. If less than all of the rights issued in any rights offering are exercised, we may offer any unsubscribed securities
directly to persons other than stockholders, to or through agents, underwriters or dealers or through a combination of such methods, including
pursuant to standby arrangements, as described in the applicable prospectus supplement.
Rights Agent
The
name and address of the rights agent for any rights we offer will be set forth in the applicable prospectus supplement.
DESCRIPTION
OF UNITS
The
following description, together with the additional information that we include in any applicable prospectus supplements summarizes the
material terms and provisions of the units that we may offer under this prospectus. While the terms we have summarized below will apply
generally to any units that we may offer under this prospectus, we will describe the particular terms of any series of units in more detail
in the applicable prospectus supplement. The terms of any units offered under a prospectus supplement may differ from the terms described
below.
We
will incorporate by reference from reports that we file with the SEC, the form of unit agreement that describes the terms of the series
of units we are offering, and any supplemental agreements, before the issuance of the related series of units. The following summaries
of material terms and provisions of the units are subject to, and qualified in their entirety by reference to, all the provisions of the
unit agreement and any supplemental agreements applicable to a particular series of units. We urge you to read the applicable prospectus
supplements related to the particular series of units that we may offer under this prospectus, as well as any related free writing prospectuses
and the complete unit agreement and any supplemental agreements that contain the terms of the units.
General
We
may issue units consisting of common stock, preferred stock, one or more debt securities, warrants or rights for the purchase of common
stock, preferred stock and/or debt securities in one or more series, in any combination. Each unit will be issued so that the holder of
the unit is also the holder of each security included in the unit. Thus, the holder of a unit will have the rights and obligations of
a holder of each security included in the unit. The unit agreement under which a unit is issued may provide that the securities included
in the unit may not be held or transferred separately, at any time or at any time before a specified date.
We
will describe in the applicable prospectus supplement the terms of the series of units being offered, including:
| · | the designation and terms of the units and of the securities comprising the units, including whether and
under what circumstances those securities may be held or transferred separately; |
| · | any provisions of the governing unit agreement that differ from those described below; and |
| · | any provisions for the issuance, payment, settlement, transfer or exchange of the units or of the securities
comprising the units. |
The
provisions described in this section, as well as those set forth in any prospectus supplement or as described under “Description
of Common Stock,” “Description of Preferred Stock,” “Description of Debt Securities,” “Description
of Warrants,” and “Description of Rights” will apply to each unit, as applicable, and to any common stock, preferred
stock, debt security, warrant, or right included in each unit, as applicable.
Unit Agent
The name
and address of the unit agent for any units we offer will be set forth in the applicable prospectus supplement.
Issuance in Series
We may issue
units in such amounts and in such numerous distinct series as we determine.
Enforceability of Rights by Holders of Units
Each
unit agent will act solely as our agent under the applicable unit agreement and will not assume any obligation or relationship of agency
or trust with any holder of any unit. A single bank or trust company may act as unit agent for more than one series of units. A unit agent
will have no duty or responsibility in case of any default by us under the applicable unit agreement or unit, including any duty or responsibility
to initiate any proceedings at law or otherwise, or to make any demand upon us. Any holder of a unit may, without the consent of the related
unit agent or the holder of any other unit, enforce by appropriate legal action its rights as holder under any security included in the
unit.
CERTAIN
PROVISIONS OF DELAWARE LAW AND OF THE COMPANY’S AMENDED AND RESTATED CERTIFICATE OF INCORPORATION AND BYLAWS
Anti-Takeover Provisions
The
provisions of Delaware law and our amended and restated certificate of incorporation, our certificate of designations of Series A
preferred stock and bylaws could discourage or make it more difficult to accomplish a proxy contest or other change in our management
or the acquisition of control by a holder of a substantial amount of our voting stock. It is possible that these provisions could make
it more difficult to accomplish, or could deter, transactions that stockholders may otherwise consider to be in their best interests or
in our best interests. These provisions are intended to enhance the likelihood of continuity and stability in the composition of our board
of directors and in the policies formulated by the board of directors and to discourage certain types of transactions that may involve
an actual or threatened change of our control. These provisions are designed to reduce our vulnerability to an unsolicited acquisition
proposal and to discourage certain tactics that may be used in proxy fights. Such provisions also may have the effect of preventing changes
in our management.
Delaware Statutory Business Combinations Provision
We
are subject to Section 203 of the Delaware General Corporation Law. This statute regulating corporate takeovers prohibits a Delaware
corporation from engaging in any business combination with any interested stockholder for three years following the date that the stockholder
became an interested stockholder, unless:
| · | prior to the date of the transaction, the board of directors of the corporation approved either the business
combination or the transaction which resulted in the stockholder becoming an interested stockholder; |
| · | upon completion of the transaction that resulted in the interested stockholder becoming an interested
stockholder, the interested stockholder owned at least 85% of the voting stock of the corporation outstanding at the time the transaction
commenced, excluding for purposes of determining the number of shares outstanding (a) shares owned by persons who are directors and
also officers, and (b) shares owned by employee stock plans in which employee participants do not have the right to determine confidentially
whether shares held subject to the plan will be tendered in a tender or exchange offer; or |
| · | on or subsequent to the date of the transaction, the business combination is approved by the board of
directors and authorized at an annual or special meeting of stockholders, and not by written consent, by the affirmative vote of at least
66 2/3% of the outstanding voting stock which is not owned by the interested stockholder. |
Generally,
a business combination includes a merger, asset or stock sale, or other transaction resulting in a financial benefit to the interested
stockholder. An interested stockholder is any person who, together with such person’s affiliates and associates (i) owns 15%
or more of a corporation’s voting securities or (ii) is an affiliate or associate of a corporation and was the owner of 15%
or more of the corporation’s voting securities at any time within the three year period immediately preceding a business combination
of the corporation governed by Section 203. We expect the existence of this provision to have an anti-takeover effect with respect
to transactions our board of directors does not approve in advance. We also anticipate that Section 203 may discourage takeover attempts
that might result in a premium over the market price for the shares of Common Stock held by our stockholders.
Classified Board of Directors; Removal of Directors for
Cause
Pursuant
to our amended and restated certificate of incorporation and bylaws, our board of directors is divided into three classes, with the term
of office of the first class to expire at the first annual meeting of stockholders following the initial classification of directors,
the term of office of the second class to expire at the second annual meeting of stockholders following the initial classification of
directors, and the term of office of the third class to expire at the third annual meeting of stockholders following the initial classification
of directors. At each annual meeting of stockholders, directors elected to succeed those directors whose terms expire will be elected
for a three-year term of office. All directors elected to our classified board of directors will serve until the election and qualification
of their respective successors or their earlier death, resignation, retirement, disqualification or removal. Members of the board of directors
may only be removed for cause and only by the affirmative vote of holders of a majority of the voting power of all then outstanding shares
of capital stock entitled to vote generally in the election of directors, voting as a single class. These provisions are likely to increase
the time required for stockholders to change the composition of the board of directors. For example, at least two annual meetings will
be necessary for stockholders to effect a change in a majority of the members of the board of directors.
Advance Notice Provisions for Stockholder Proposals and
Stockholder Nominations of Directors
Our
bylaws provide that, for nominations to the board of directors or for other business to be properly brought by a stockholder before a
meeting of stockholders, the stockholder must first have given timely notice of the proposal in writing to our Secretary. For an annual
meeting, a stockholder’s notice generally must be delivered not less than 90 days nor more than 120 days prior to the first anniversary
of the previous year’s annual meeting date. For a special meeting, the notice must generally be delivered not earlier than the 10th
day following the day on which public announcement of the meeting is first made. Detailed requirements as to the form of the notice and
information required in the notice are specified in the bylaws. If it is determined that business was not properly brought before a meeting
in accordance with our bylaw provisions, such business will not be conducted at the meeting.
Special Meetings of Stockholders
Special
meetings of the stockholders may be called only by the Chairman of the board of directors, the Chief Executive Officer or President, or
our board of directors pursuant to a resolution adopted by a majority of the total number of directors.
No Stockholder Action by Written Consent
Any
action to be effected by our stockholders must be effected at a duly called annual or special meeting of the stockholders.
Limitation of Liability
and Indemnification
Our
amended and restated certificate of incorporation and our bylaws provide that each person who was or is made a party or is threatened
to be made a party to or is otherwise involved in any threatened, pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative by reason of the fact that he or she is or was one of our directors or officers or, while one of our directors
or officers, is or was serving at our request as a director, officer, or employee or agent of another corporation, or of a partnership,
joint venture, trust or other enterprise or nonprofit entity, including service with respect to an employee benefit plan, whether the
basis of such proceeding is alleged action in an official capacity as a director, officer, employee or agent or in any other capacity
while serving as a director, officer, employee or agent, shall be indemnified and held harmless by us to the fullest extent authorized
by the Delaware General Corporation Law against all liability and loss suffered and expenses (including, without limitation, attorneys’
fees, judgments, fines, ERISA excise taxes or penalties and amounts paid in settlement) reasonably incurred or suffered by such.
Section 145
of the Delaware General Corporation Law permits a corporation to indemnify any director or officer of the corporation against expenses
(including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred in connection with
any action, suit or proceeding brought by reason of the fact that such person is or was a director or officer of the corporation, if such
person acted in good faith and in a manner that he or she reasonably believed to be in, or not opposed to, the best interests of the corporation,
and, with respect to any criminal action or proceeding, if he or she had no reasonable cause to believe his or her conduct was unlawful.
In a derivative action (i.e., one brought by or on behalf of the corporation), indemnification may be provided only for expenses actually
and reasonably incurred by any director or officer in connection with the defense or settlement of such an action or suit if such person
acted in good faith and in a manner that he or she reasonably believed to be in, or not opposed to, the best interests of the corporation,
except that no indemnification shall be provided if such person shall have been adjudged to be liable to the corporation, unless and only
to the extent that the Delaware Chancery Court or the court in which the action or suit was brought shall determine that such person is
fairly and reasonably entitled to indemnity for such expenses despite such adjudication of liability.
Pursuant
to Section 102(b)(7) of the Delaware General Corporation Law, Article Eighth of our amended and restated certificate of
incorporation eliminates the liability of a director to us or our stockholders for monetary damages for such a breach of fiduciary duty
as a director, except for liabilities arising:
| · | from any breach of the director’s duty of loyalty to us or our stockholders; |
| · | from acts or omissions not in good faith or which involve intentional misconduct or a knowing violation
of law; |
| · | under Section 174 of the Delaware General Corporation Law; and |
| · | from any transaction from which the director derived an improper personal benefit. |
In
addition to the indemnification provided in our amended and restated certificate of incorporation and our bylaws, we may enter into indemnification
agreements with any directors and executive officers in the future. We have purchased and intend to maintain insurance on behalf of any
person who is or was a director or officer against any loss arising from any claim asserted against him or her and incurred by him or
her in any such capacity, subject to certain exclusions.
The
foregoing discussion of our amended and restated certificate of incorporation, bylaws, indemnification agreements, indemnity agreement,
and Delaware law is not intended to be exhaustive and is qualified in its entirety by such amended and restated certificate of incorporation,
bylaws, indemnification agreements, indemnity agreement, or law.
Insofar
as indemnification for liabilities arising under the Securities Act may be permitted to our directors, officers and controlling persons
pursuant to the foregoing provisions, or otherwise, we have been advised that in the opinion of the SEC such indemnification is against
public policy as expressed in the Securities Act and is, therefore, unenforceable.
LEGAL
MATTERS
Certain
legal matters in connection with this offering will be passed upon for us by Stoel Rives LLP, Portland, Oregon.
EXPERTS
The financial statements
of The ONE Group Hospitality, Inc. incorporated by reference in this Prospectus, and the effectiveness of The ONE Group Hospitality,
Inc.’s internal control over financial reporting have been audited by Deloitte & Touche LLP, an independent registered public
accounting firm, as stated in their report. Such financial statements are incorporated by reference in reliance upon the report of such
firm, given their authority as experts in accounting and auditing.
WHERE
YOU CAN FIND MORE INFORMATION
We
are subject to the reporting requirements of the Securities Exchange Act of 1934, as amended, and file annual, quarterly and current reports,
proxy statements and other information with the SEC. You may read and copy these reports, proxy statements and other information at the
SEC’s public reference facilities at 100 F Street, N.E., Washington, D.C. 20549. You can request copies of these documents by writing
to the SEC and paying a fee for the copying cost. Please call the SEC at 1-800-SEC-0330 for more information about the operation of the
public reference facilities. SEC filings are also available at the SEC’s web site at http://www.sec.gov.
This
prospectus is only part of a registration statement on Form S-3 that we have filed with the SEC under the Securities Act of 1933,
as amended, and therefore omits certain information contained in the registration statement. We have also filed exhibits and schedules
with the registration statement that are excluded from this prospectus, and you should refer to the applicable exhibit or schedule for
a complete description of any statement referring to any contract or other document. You may inspect a copy of the registration statement,
including the exhibits and schedules, without charge, at the public reference room or obtain a copy from the SEC upon payment of the fees
prescribed by the SEC.
We
also maintain a website at www.togrp.com, through which you can access our SEC filings. The information set forth on our website is not
part of this prospectus.
INCORPORATION
OF DOCUMENTS BY REFERENCE
The
SEC allows us to “incorporate by reference” information that we file with them. Incorporation by reference allows us to disclose
important information to you by referring you to those other documents. The information incorporated by reference is an important part
of this prospectus, and information that we file later with the SEC will automatically update and supersede this information. We filed
a registration statement on Form S-3 under the Securities Act of 1933, as amended, with the SEC with respect to the securities we
may offer pursuant to this prospectus. This prospectus omits certain information contained in the registration statement, as permitted
by the SEC. You should refer to the registration statement, including the exhibits, for further information about us and the securities
we may offer pursuant to this prospectus. Statements in this prospectus regarding the provisions of certain documents filed with, or incorporated
by reference in, the registration statement are not necessarily complete and each statement is qualified in all respects by that reference.
Copies of all or any part of the registration statement, including the documents incorporated by reference or the exhibits, may be obtained
upon payment of the prescribed rates at the offices of the SEC listed above in “Where You Can Find More Information.” The
documents we are incorporating by reference are:
| · | all reports and other documents subsequently filed by us pursuant to Sections 13(a), 13(c), 14 and 15(d) of
the Exchange Act after the date of this prospectus and prior to the termination or completion of the offering of securities under this
prospectus shall be deemed to be incorporated by reference in this prospectus and to be a part hereof from the date of filing such reports
and other documents. |
The
SEC file number for each of the documents listed above is 001-37379.
In
addition, all reports and other documents filed by us pursuant to the Exchange Act after the date of the initial registration statement
and prior to effectiveness of the registration statement shall be deemed to be incorporated by reference into this prospectus.
Any
statement contained in this prospectus or in a document incorporated or deemed to be incorporated by reference into this prospectus will
be deemed to be modified or superseded for purposes of this prospectus to the extent that a statement contained in this prospectus or
any other subsequently filed document that is deemed to be incorporated by reference into this prospectus modifies or supersedes the statement.
Any statement so modified or superseded will not be deemed, except as so modified or superseded, to constitute a part of this prospectus.
You
may request, orally or in writing, a copy of any or all of the documents incorporated herein by reference. These documents will be provided
to you at no cost, by contacting:
The ONE Group Hospitality, Inc.
1624 Market Street, Suite 311
Denver, Colorado 80202
Attention: Corporate Secretary
Telephone: (646) 624-2400
You may also access these
documents on our website, http://www.togrp.com.
You
should rely only on information contained in, or incorporated by reference into, this prospectus and any prospectus supplement. We have
not authorized anyone to provide you with information different from that contained in this prospectus or incorporated by reference in
this prospectus. We are not making offers to sell the securities in any jurisdiction in which such an offer or solicitation is not authorized
or in which the person making such offer or solicitation is not qualified to do so or to anyone to whom it is unlawful to make such offer
or solicitation.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The
following table sets forth an itemization of the various expenses, all of which we will pay, in connection with the issuance and distribution
of the securities being registered. All of the amounts shown are estimated except the SEC Registration Fee.
| SEC Registration Fee+ | |
$ | 12,450 | |
| Printing and Engraving Expenses | |
| * | |
| Legal Fees and Expenses | |
| * | |
| Accounting Fees and Expenses | |
| * | |
| Transfer Agent and Registrar Fees | |
| * | |
| Miscellaneous | |
| * | |
| Total | |
| * | |
+ The
SEC Registration Fee was carried forward from a prior registration statement and no filing fee was paid in connection with this registration
statement. See Exhibit 107 to this registration statement for further details.
* Fees
depend on number of issuances and amount of securities sold and accordingly cannot be estimated at this time.
| |
Item 15. |
Indemnification of Directors and Officers |
Delaware
General Corporation Law. Subsection (a) of Section 145 of the Delaware General Corporation Law (the “DGCL”)
provides that a corporation may indemnify any person who was or 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 (other than an action by or in the right
of the corporation) by reason of the fact that the 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 or agent of another corporation, partnership, joint venture,
trust or other enterprise, against 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 if such person acted in good faith and in a
manner such person reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal
action or proceeding, had no reasonable cause to believe his or her conduct was unlawful. Section 145 of the DGCL further provides
that a corporation similarly may indemnify any such person serving in any such capacity who was or is a party or is threatened to be made
a party to any threatened, pending or completed action or suit by or in the right of the corporation to procure a judgment in its favor,
against expenses (including attorneys’ fees) actually and reasonably incurred in connection with the defense or settlement of such
action or suit if such person acted in good faith and in a manner that such person reasonably believed to be in or not opposed to the
best interests of the corporation; provided that no indemnification shall be made in respect of any claim, issue or matter as to which
such person shall have been adjudged to be liable to the corporation unless and only to the extent that the Delaware Court of Chancery
or such other court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability
but in view of all of the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which
the Court of Chancery or such other court shall deem proper.
Amended
and Restated Certificate of Incorporation and Bylaws. Our amended and restated certificate of incorporation provides that our corporation,
to the full extent permitted by Section 145 of the DGCL, as amended from time to time, shall indemnify each person who is or was
made a party or is threatened to be made a party to or is otherwise involved in any threatened, pending or completed action, suit or proceeding,
by reason of the fact that the person is or was a director or officer of the Corporation or, while a director or officer of the Corporation,
is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation or of a partnership,
joint venture, trust, other enterprise or nonprofit entity, including service with respect to an employee benefit plan. Expenses (including
attorneys’ fees) incurred by an officer or director in defending any civil, criminal, administrative, or investigative action, suit
or proceeding for which such officer or director may be entitled to indemnification hereunder shall be paid by the corporation in advance
of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such director or officer
to repay such amount if it shall ultimately be determined that such person is not entitled to be indemnified by the corporation as authorized
hereby.
Our
bylaws provide for the indemnification of our directors, officers or other persons in accordance with our amended and restated certificate
of incorporation.
Indemnification
Agreements. In addition to the indemnification provided in our amended and restated certificate of incorporation and our bylaws, we
may enter into indemnification agreements with any directors and executive officers in the future. These indemnification agreements may
require us, among other things, to indemnify our directors and officers for some expenses, including attorneys’ fees, judgments,
fines and settlement amounts incurred by a director or officer in any action or proceeding arising out of his or her service as one of
our directors or officers, or any of our subsidiaries or any other company or enterprise to which the person provides services at our
request.
Insurance
Policies. The Registrant has directors’ and officers’ liability insurance in an amount of $40,000,000. We intend to maintain
insurance on behalf of any person who is or was a director or officer against any loss arising from any claim asserted against him or
her and incurred by him or her in any such capacity, subject to certain exclusions.
The
foregoing discussion of our amended and restated certificate of incorporation, bylaws, indemnification agreements, indemnity agreement,
and Delaware law is not intended to be exhaustive and is qualified in its entirety by such amended and restated certificate of incorporation,
bylaws, indemnification agreements, indemnity agreement, or law.
The
exhibits to this registration statement are listed in the Exhibit Index to this registration statement, which Exhibit Index
is hereby incorporated 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) To
include any prospectus required by section 10(a)(3) of the Securities Act of 1933;
(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 20% change in the maximum aggregate offering price set forth in the “Calculation of
Registration Fee” table in the effective registration statement; and
(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), (a)(1)(ii) and (a)(1)(iii) 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 Securities Exchange Act of 1934 that are incorporated by reference in the registration statement,
or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the 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.
(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 the 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 the registration statement as of
the date the filed prospectus was deemed part of and included in the 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 the 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 that 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 the registration statement or made in a document incorporated or deemed incorporated by reference into the
registration statement or prospectus that is part of the 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 the registration statement or prospectus that was part
of the 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 of 1933 to any purchaser in the initial distribution
of the securities, 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 the 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 section 15(d) of the Securities Exchange
Act of 1934) 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 of 1933 may be permitted to directors, officers and controlling persons
of the registrant, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification
is against public policy as expressed in the 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 Act and will be governed by the final adjudication of such issue.
(d) 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 (“Act”) in accordance with the rules and regulations
prescribed by the Commission under section 305(b)(2) of the Act.
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Denver, State of Colorado, on June 7, 2024.
| |
THE ONE GROUP HOSPITALITY, INC. |
| |
|
|
| |
By: |
/s/ Emanuel Hilario |
| |
|
Emanuel Hilario |
| |
|
President and Chief Executive Officer |
POWER OF ATTORNEY
We,
the undersigned officers and directors of The ONE Group Hospitality, Inc., hereby severally constitute and appoint Emanuel
Hilario, Tyler Loy and Christi Hing, and each of them singly (with full power to each of them to
act alone), our true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution in each of them for her
or him and in her or his name, place and stead, and in any and all capacities, to sign any and all amendments (including post-effective
amendments) to this registration statement (or any other registration statement for the same offering that is to be effective upon filing
pursuant to Rule 462(b) under the Securities Act of 1933), and to file the same, with all exhibits thereto and other documents
in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them,
full power and authority to do and perform each and every act and thing requisite or necessary to be done in and about the premises, as
full to all intents and purposes as she or he 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 her 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, this registration statement has been signed below by the following persons in the capacities
and on the dates indicated.
| Signature |
|
Title |
|
Date |
| |
|
|
|
|
| /s/ Emanuel Hilario |
|
Director, President and Chief Executive Officer |
|
June 7, 2024 |
| Emanuel Hilario |
|
(Principal Executive Officer) |
|
|
| |
|
|
|
|
| /s/ Tyler Loy |
|
Chief Financial Officer (Principal |
|
June 7, 2024 |
| Tyler Loy |
|
Financial Officer) |
|
|
| |
|
|
|
|
| /s/ Christi Hing |
|
Chief Accounting Officer (Principal |
|
June 7, 2024 |
| Christi Hing |
|
Accounting Officer) |
|
|
| |
|
|
|
|
| /s/ Jonathan Segal |
|
Director (Chairman) |
|
June 7, 2024 |
| Jonathan Segal |
|
|
|
|
| |
|
|
|
|
| /s/ Michael Serruya |
|
Director |
|
June 7, 2024 |
| Michael Serruya |
|
|
|
|
| |
|
|
|
|
| /s/ Eugene Bullis |
|
Director |
|
June 7, 2024 |
| Eugene Bullis |
|
|
|
|
| |
|
|
|
|
| /s/ Dimitrios Angelis |
|
Director |
|
June 7, 2024 |
| Dimitrios Angelis |
|
|
|
|
| |
|
|
|
|
| /s/ Susan Lintonsmith |
|
Director |
|
June 7, 2024 |
| Susan Lintonsmith |
|
|
|
|
| |
|
|
|
|
| /s/ Haydee Olinger |
|
Director |
|
June 7, 2024 |
| Haydee Olinger |
|
|
|
|
| |
|
|
|
|
| /s/ James Chambers |
|
Director |
|
June 7, 2024 |
| James Chambers |
|
|
|
|
| |
|
|
|
|
| /s/ Scott Ross |
|
Director |
|
June 7, 2024 |
| Scott Ross |
|
|
|
|
EXHIBIT INDEX
Exhibit
Number |
|
Description |
| 1.1* |
|
Form of Underwriting Agreement |
| 3.1 |
|
Amended and Restated Certificate of Incorporation (Incorporated by reference to Form 8-K filed on June 5, 2014). |
| 3.2 |
|
Certificate of Designations of Series A Preferred Stock (Incorporated by reference to Form 8-K filed on May 1, 2024). |
| 3.3 |
|
Amended and Restated Bylaws (Incorporated by reference to Form 8-K filed on October 25, 2011). |
| 4.1 |
|
Investment Agreement dated March 26, 2024 between The ONE Group Hospitality, Inc., HPS Investment Partners, LLC and HPC III Kaizen LP (Incorporated by reference to Form 8-K filed on March 26, 2024). |
| 4.2 |
|
Warrant Certificate No. A-1, dated May 1, 2024, issued by the Company to HPC III Kaizen LP (Incorporated by reference to the Form 8-K filed on May 1, 2024). |
| 4.3 |
|
Warrant Certificate No. A-2, dated May 1, 2024, issued by the Company to HPS Special Situations Opportunity Fund II, L.P. (Incorporated by reference to the Form 8-K filed on May 1, 2024). |
| 4.4 |
|
Warrant Certificate No. A-3, dated May 1, 2024, issued by the Company to SSOF II BH US Subsidiary, L.P. (Incorporated by reference to the Form 8-K filed on May 1, 2024). |
| 4.5 |
|
Warrant Certificate No. A-4, dated May 1, 2024, issued by the Company to HPS Corporate Lending Fund (Incorporated by reference to the Form 8-K filed on May 1, 2024). |
| 4.6 |
|
Warrant Certificate No. A-5, dated May 1, 2024, issued by the Company to HPS Corporate Capital Solutions Fund (Incorporated by reference to the Form 8-K filed on May 1, 2024). |
| 4.7 |
|
Warrant Certificate No. B-1, dated May 1, 2024, issued by the Company to HPC III Kaizen L.P. (Incorporated by reference to the Form 8-K filed on May 1, 2024). |
| 4.8 |
|
Warrant Certificate No. B-2, dated May 1, 2024, issued by the Company to HPS Special Situations Opportunity Fund II, L.P. (Incorporated by reference to the Form 8-K filed on May 1, 2024). |
| 4.9 |
|
Warrant Certificate No. B-3, dated May 1, 2024, issued by the Company to SSOF II BH US Subsidiary, L.P. (Incorporated by reference to the Form 8-K filed on May 1, 2024). |
| 4.10 |
|
Warrant Certificate No. B-4, dated May 1, 2024, issued by the Company to HPS Corporate Lending Fund (Incorporated by reference to the Form 8-K filed on May 1, 2024). |
| 4.11 |
|
Warrant Certificate No. B-5, dated May 1, 2024, issued by the Company to HPS Corporate Capital Solutions Fund (Incorporated by reference to the Form 8-K filed on May 1, 2024). |
| 4.12 |
|
Registration Rights Agreement dated May 1, 2024 by and among the Company, HPC III Kaizen L.P., HPS Special Situations Opportunity Fund II, L.P., SSOF II BH US Subsidiary, L.P., HPS Corporate Lending Fund and HPS Corporate Capital Solutions Fund (Incorporated by reference to the Form 8-K filed on May 1, 2024). |
| 4.13 |
|
Form of Senior Indenture (Incorporated by reference to Form S-3 filed on April 15, 2015). |
| 4.14 |
|
Form of Subordinated Indenture (Incorporated by reference to Form S-3 filed on April 15, 2015). |
| 4.15* |
|
Form of Certificate of Amendment or Designation with respect to Preferred Stock. |
* To
be subsequently filed, if applicable, by an amendment to this registration statement or by a Current Report on Form 8-K.
Exhibit 5.1
June 7, 2024
The ONE Group Hospitality, Inc.
1624 Market Street, Suite 311
Denver, Colorado 80202
Ladies and Gentlemen:
We have acted as legal counsel
to The ONE Group Hospitality, Inc., a Delaware corporation (the “Company”), in connection with the preparation
and filing with the Securities and Exchange Commission (the “Commission”) of a Registration Statement on Form S-3
(the “Registration Statement”), pursuant to which the Company is registering securities under the Securities Act of
1933, as amended (the “Securities Act”).
The Registration
Statement relates to the proposed issuance and sale by the Company, from time to time, pursuant to Rule 415 under the
Securities Act, as set forth in the Registration Statement, the prospectus contained therein (the “Prospectus”)
and the supplements to the prospectus referred to therein (each a “Prospectus Supplement”), of up to an aggregate
offering price of $100,000,000 of securities of the Company (collectively, the “Securities”) comprising common
stock, $0.0001 par value per share (the “Common Stock”); preferred stock, $0.0001 par value per share (the
“Preferred Stock”); senior debt securities, in one or more series (the “Senior Debt
Securities”), which may be issued pursuant to an indenture to be dated on or about the date of the first issuance of
Senior Debt Securities thereunder, by and between the Company and a trustee to be selected by the Company, in the form attached as
Exhibit 4.13 to the Registration Statement, as such indenture may be amended or supplemented from time to time (the
“Senior Indenture”); subordinated debt securities, in one or more series (the “Subordinated Debt
Securities” and, together with the Senior Debt Securities, the “Debt Securities”), which may be issued
pursuant to an indenture to be dated on or about the date of the first issuance of Subordinated Debt Securities thereunder, by and
between the Company and a trustee to be selected by the Company, in the form attached as Exhibit 4.14 to the Registration
Statement, as such indenture may be amended or supplemented from time to time (the “Subordinated Indenture”);
warrants to purchase Common Stock, Preferred Stock, and/or Debt Securities (the “Warrants”), which may be issued
under warrant agreements, to be dated on or about the date of the first issuance of the applicable Warrants thereunder, by and
between the Company and a warrant agent to be selected by the Company (each, a “Warrant Agreement”); rights to
purchase Common Stock, Preferred Stock or Debt Securities (the “Rights”), which may be issued pursuant to a
rights agreement and certificates issued thereunder, to be dated on or about the date of the first issuance of the applicable Rights
thereunder, by and between the Company and a rights agent to be selected by the Company (each, a “Rights
Agreement”); and units comprised of one or more Debt Securities, shares of Common Stock, shares of Preferred Stock,
Rights, and Warrants, in any combination (the “Units”), which may be issued under unit agreements, to be dated on
or about the date of the first issuance of the applicable Units thereunder, by and between the Company and a unit agent to be
selected by the Company (each, a “Unit Agreement”).
This opinion is being rendered
in connection with the filing of the Registration Statement with the Commission. All capitalized terms used herein and not otherwise
defined shall have the respective meanings given to them in the Registration Statement.
In connection with this opinion,
we have examined the Company’s Amended and Restated Certificate of Incorporation, the Company’s Certificate of Designations
of Series A Preferred Stock and Amended and Restated Bylaws, each as currently in effect; such other records of the corporate proceedings
of the Company and certificates of the Company’s officers as we have deemed relevant; and the Registration Statement and the exhibits
thereto.
The ONE Group Hospitality, Inc.
June 7, 2024
Page 2
In our examination, we have
assumed the genuineness of all signatures, the legal capacity of natural persons, the authenticity of all documents submitted to us as
originals, the conformity to original documents of all documents submitted to us as certified or photostatic copies and the authenticity
of the originals of such copies.
In our capacity as counsel
to the Company in connection with such registration, we are familiar with the proceedings taken and proposed to be taken by the Company
in connection with the authorization and issuance of the Securities. For purposes of this opinion, we have assumed that such proceedings
will be timely and properly completed, in accordance with all requirements of applicable laws, in the manner presently
proposed.
The opinions set forth below
are subject to the following exceptions, limitations and qualifications: (i) the effect of bankruptcy, insolvency, reorganization,
fraudulent conveyance, moratorium or other similar laws now or hereafter in effect relating to or affecting the rights and remedies of
creditors; (ii) the effect of general principles of equity, whether enforcement is considered in a proceeding in equity or at law,
and the discretion of the court before which any proceeding therefor may be brought; (iii) the unenforceability under certain circumstances
under law or court decisions of provisions providing for the indemnification of, or contribution to, a party with respect to a liability
where such indemnification or contribution is contrary to public policy; (iv) we express no opinion concerning the enforceability
of any waiver of rights or defenses with respect to stay, extension or usury laws; and (v) we express no opinion with respect to
whether acceleration of any Debt Securities may affect the ability to collect any portion of the stated principal amount thereof which
might be determined to constitute unearned interest thereon.
We have relied as to
certain matters on information obtained from public officials, officers of the Company, and other sources believed by us to be
reliable, and we have assumed that all representations and warranties and other statements contained in the Registration Statement,
the Senior Indenture and the Subordinated Indenture and all other documents, instruments and certificates that we have examined in
connection with this matter are accurate and complete, except to the extent the information constitutes a statement, directly or in
practical effect, of any legal conclusion at issue. We have assumed that the Senior Indenture and the Subordinated Indenture will be
duly authorized, executed, and delivered by the respective trustees thereunder and each Warrant Agreement, Rights Agreement and Unit
Agreement will be duly authorized, executed, and delivered by the warrant agent, rights agent and unit agent, respectively,
thereunder. With respect to our opinion as to the Common Stock and Securities convertible into or exercisable for shares of Common
Stock, we have assumed that, at the time of issuance and sale, a sufficient number of shares of Common Stock are authorized and
available for issuance under the Company’s Certificate of Incorporation as then in effect and that the consideration for the
issuance and sale of the Common Stock (or Preferred Stock, Debt Securities convertible into Common Stock or Warrants or Rights
exercisable for Common Stock or any Units of such Securities) is in an amount that is not less than the par value of the Common
Stock. With respect to our opinion as to the Preferred Stock and Securities convertible into or exercisable for shares of Preferred
Stock, we have assumed that, at the time of issuance and sale, a sufficient number of shares of Preferred Stock are authorized,
designated and available for issuance and that the consideration for the issuance and sale of the Preferred Stock (or Debt
Securities convertible into Preferred Stock or Warrants or Rights exercisable for Preferred Stock or any Units of such Securities)
is in an amount that is not less than the par value of the Preferred Stock. We have also assumed that any Warrants, Rights, and
Units offered under the Registration Statement, and the related Warrant Agreement, Rights Agreement, and Unit Agreement, as
applicable, will be executed in the forms to be filed as exhibits to the Registration Statement (as amended from time to time) or
incorporated by reference therein. We have assumed that the Company will be a validly existing corporation in good standing under
the laws of the state of Delaware at the time it executes and delivers the Securities and the Senior Indenture, the Subordinated
Indenture, any Warrant Agreement, any Rights Agreement, any Unit Agreement and any purchase, underwriting or similar agreement
(each, an “Underwriting Agreement”). We have not independently verified any of the foregoing assumptions.
The ONE Group Hospitality, Inc.
June 7, 2024
Page 3
It is understood that this
opinion is to be used only in connection with the offer and sale of Securities while the Registration Statement is effective under the
Securities Act.
Our opinion is limited to
the General Corporation Law of the State of Delaware and the laws of the State of Oregon. Without limiting the generality of the foregoing,
we express no opinion with respect to (i) the qualification of the Securities under the securities or blue sky laws of any state or
any foreign jurisdiction or (ii) the compliance with the Securities Act or any other federal or state law, rule or regulation relating to securities, or
to the sale or issuance thereof.
Please note that we are opining
only as to the matters expressly set forth herein, and no opinion should be inferred as to any other matters. The Securities may be issued
from time to time on a delayed or continuous basis, but this opinion is based upon currently existing statutes, rules, regulations and
judicial decisions, and we disclaim any obligation to advise you of any change in any of these sources of law or subsequent legal or
factual developments which might affect any matters or opinions set forth herein.
Based upon and subject
to the foregoing, we are of the opinion that:
1. With respect to the Common Stock, when (i) specifically authorized
for issuance by the Company’s Board of Directors or an authorized committee thereof (the “Authorizing Resolutions”),
(ii) the Registration Statement, as finally amended (including all post-effective amendments), has become effective under the Securities
Act, (iii) an appropriate Prospectus Supplement with respect to the applicable shares of Common Stock has been prepared, delivered and
filed in compliance with the Securities Act and the applicable rules and regulations thereunder, (iv) if the applicable shares of Common
Stock are to be sold pursuant to an Underwriting Agreement, such Underwriting Agreement with respect to the applicable shares of Common
Stock in the form filed as an exhibit to the Registration Statement, any post-effective amendment thereto or to a Current Report on Form
8-K, has been duly authorized, executed and delivered by the Company and the other parties thereto, (v) the terms of the sale of the Common
Stock have been duly established in conformity with the Company’s then-operative certificate of incorporation and bylaws and do
not violate any applicable law or result in a default under or breach of any agreement or instrument binding on the Company and comply
with any requirement or restriction imposed by any court or governmental body having jurisdiction over the Company, (vi) the Common Stock
has been issued and sold as contemplated by the Registration Statement and the Prospectus, and (vii) the Company has received the consideration
provided for in the Authorizing Resolutions and, if applicable, the Underwriting Agreement, the Common Stock will be validly issued, fully
paid and nonassessable.
2. With respect to the Preferred Stock, when (i) specifically authorized
for issuance by the Authorizing Resolutions, (ii) the Registration Statement, as finally amended (including all post-effective amendments),
has become effective under the Securities Act, (iii) an appropriate Prospectus Supplement with respect to the applicable shares of Preferred
Stock has been prepared, delivered and filed in compliance with the Securities Act and the applicable rules and regulations thereunder,
(iv) if the applicable shares of Preferred Stock are to be sold pursuant to an Underwriting Agreement, such Underwriting Agreement with
respect to the applicable shares of Preferred Stock in the form filed as an exhibit to the Registration Statement, any post-effective
amendment thereto or to a Current Report on Form 8-K, has been duly authorized, executed and delivered by the Company and the other parties
thereto, (v) an appropriate certificate or certificates of amendment or designation relating to a class or series of the Preferred Stock
to be sold under the Registration Statement has been duly authorized and adopted and filed with the Secretary of State of the State of
Delaware prior to the issuance of the Preferred Stock, (vi) the terms of issuance and sale of shares of such class or series of Preferred
Stock have been duly established in conformity with the Company’s then-operative certificate of incorporation and bylaws and do
not violate any applicable law or result in a default under or breach of any agreement or instrument binding upon the Company and comply
with any requirement or restriction imposed by any court or governmental body having jurisdiction over the Company, (vii) shares of such
class or series of Preferred Stock have been duly issued and sold as contemplated by the Registration Statement and the Prospectus, and
(viii) the Company has received the consideration provided for in the Authorizing Resolutions and, if applicable, the Underwriting Agreement,
the Preferred Stock will be validly issued, fully paid and nonassessable.
The ONE Group Hospitality, Inc.
June 7, 2024
Page 4
3. With respect to the Debt Securities, when (i) specifically authorized
for issuance by the Authorizing Resolutions, (ii) the Registration Statement, as finally amended (including all post-effective amendments),
has become effective under the Securities Act, (iii) the Senior Indenture or the Subordinated Indenture, whichever the case may be, has
been duly authorized, executed and delivered by the Company and the other parties thereto, (iv) an appropriate Prospectus Supplement with
respect to the applicable Debt Securities has been prepared, delivered and filed in compliance with the Securities Act and the applicable
rules and regulations thereunder, (v) if the applicable Debt Securities are to be sold pursuant to an Underwriting Agreement, such Underwriting
Agreement with respect to the applicable Debt Securities in the form filed as an exhibit to the Registration Statement, any post-effective
amendment thereto or to a Current Report on Form 8-K, has been duly authorized, executed and delivered by the Company and the other parties
thereto; (vi) the terms of the Debt Securities and of their issuance and sale have been duly established in conformity with the Senior
Indenture or the Subordinated Indenture, whichever the case may be, and do not violate any applicable law or result in a default under
or breach of any agreement or instrument binding upon the Company and comply with any requirement or restriction imposed by any court
or governmental body having jurisdiction over the Company, (vii) such Debt Securities have been duly executed, delivered and authenticated
in accordance with the Senior Indenture or the Subordinated Indenture, whichever the case may be, and issued and sold as contemplated
in the Registration Statement and the Prospectus, (viii) the Senior Indenture or the Subordinated Indenture, whichever the case may be,
relating to the Debt Securities has been qualified under the Trust Indenture Act of 1939, as amended, and (ix) the Company has received
the consideration provided for in the Authorizing Resolutions and, if applicable, the Underwriting Agreement, the Debt Securities will
constitute binding obligations of the Company.
4. With respect to the Warrants, when (i) specifically authorized for
issuance by the Authorizing Resolutions, (ii) the Registration Statement, as finally amended (including all post-effective amendments),
has become effective under the Securities Act, (iii) the Warrant Agreement relating to the Warrants has been duly authorized, executed,
and delivered by the Company and the other parties thereto, (iv) an appropriate Prospectus Supplement with respect to the applicable Warrants
has been prepared, delivered and filed in compliance with the Securities Act and the applicable rules and regulations thereunder, (v)
if the applicable Warrants are to be sold pursuant to an Underwriting Agreement, such Underwriting Agreement with respect to the applicable
Warrants in the form filed as an exhibit to the Registration Statement, any post-effective amendment thereto or to a Current Report on
Form 8-K, has been duly authorized, executed and delivered by the Company and the other parties thereto, (vi) the terms of the Warrants
and of their issuance and sale have been duly established in conformity with the Warrant Agreement and do not violate any applicable law
or result in a default under or breach of any agreement or instrument binding upon the Company and comply with any requirement or restriction
imposed by any court or governmental body having jurisdiction over the Company, (vii) the Warrants have been duly executed, delivered
and countersigned in accordance with the applicable Warrant Agreement and issued and sold as contemplated by the Registration Statement
and the Prospectus, and (viii) the Company has received the consideration provided for in the Authorizing Resolutions and, if applicable,
the Underwriting Agreement, the Warrants will constitute binding obligations of the Company.
The ONE Group Hospitality, Inc.
June 7, 2024
Page 5
5. With respect to the Rights, when (i) specifically authorized for issuance
by the Authorizing Resolutions, (ii) the Registration Statement, as finally amended (including all post-effective amendments), has become
effective under the Securities Act, (iii) the Rights Agreement and any certificates relating to the Rights have been duly authorized,
executed, and delivered by the Company and the other parties thereto, (iv) an appropriate Prospectus Supplement with respect to the applicable
Rights has been prepared, delivered and filed in compliance with the Securities Act and the applicable rules and regulations thereunder,
(v) if the applicable Rights are to be sold pursuant to an Underwriting Agreement, such Underwriting Agreement with respect to the applicable
Rights in the form filed as an exhibit to the Registration Statement, any post-effective amendment thereto or to a Current Report on Form
8-K, has been duly authorized, executed and delivered by the Company and the other parties thereto, (vi) the terms of the Rights and of
their issuance and sale have been duly established in conformity with the applicable Rights Agreement and any rights certificates and
do not violate any applicable law or result in a default under or breach of any agreement or instrument binding upon the Company and comply
with any requirement or restriction imposed by any court or governmental body having jurisdiction over the Company, (vii) the Rights have
been duly executed, delivered and countersigned in accordance with the Rights Agreement and issued and sold as contemplated by the Registration
Statement and the Prospectus, and (viii) the Company has received the consideration provided for in the Authorizing Resolutions and, if
applicable, the Underwriting Agreement, the Rights will constitute binding obligations of the Company.
6. With respect to the Units, when (i) specifically authorized for issuance
by the Authorizing Resolutions, (ii) the Registration Statement, as finally amended (including all post-effective amendments), has become
effective under the Securities Act, (iii) the Unit Agreement relating to the Units has been duly authorized, executed, and delivered by
the Company and the other parties thereto, (iv) an appropriate Prospectus Supplement with respect to the applicable Units has been prepared,
delivered and filed in compliance with the Securities Act and the applicable rules and regulations thereunder, (v) if the applicable Units
are to be sold pursuant to an Underwriting Agreement, such Underwriting Agreement with respect to the applicable Units in the form filed
as an exhibit to the Registration Statement, any post-effective amendment thereto or to a Current Report on Form 8-K, has been duly authorized,
executed and delivered by the Company and the other parties thereto, (vi) the terms of the Units and of their issuance and sale have been
duly established in conformity with the applicable Unit Agreement and do not violate any applicable law or result in a default under or
breach of any agreement or instrument binding upon the Company and comply with any requirement or restriction imposed by any court or
governmental body having jurisdiction over the Company, (vii) the Units have been duly executed, delivered and countersigned in accordance
with the Unit Agreement and issued and sold as contemplated by the Registration Statement and the Prospectus, and (viii) the Company has
received the consideration provided for in the Authorizing Resolutions and, if applicable, the Underwriting Agreement, the Units will
constitute binding obligations of the Company.
We consent to your filing this opinion with the Commission as an exhibit
to the Registration Statement in accordance with the requirements of Item 601(b)(5) of Regulation S-K promulgated under the
Securities Act and to reference the firm’s name under the caption “Legal Matters” in the Prospectus. In giving this
consent, we do not admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act or
the rules and regulations of the Commission promulgated thereunder.
Very Truly Yours,
/s/ Stoel Rives LLP
Stoel Rives LLP
Exhibit 23.1
Consent of Independent Registered Public Accounting Firm
We consent to the incorporation
by reference in this Registration Statement on Form S-3 of our report dated March 14, 2024, relating to the consolidated financial statements
of The One Group Hospitality, Inc. and subsidiaries (the “Company”) and the effectiveness of the Company's internal control
over financial reporting, appearing in the Annual Report on Form 10-K of the Company for the year ended December 31, 2023. We also consent
to the reference to us under the heading "Experts" in such Registration Statement.
/s/ Deloitte & Touche LLP
Denver, Colorado
June 7, 2024
Exhibit 107
Calculation of Filing Fee Tables
FORM S-3
(Form Type)
The ONE Group Hospitality, Inc.
(Exact Name of Registrant as Specified in its Charter)
Table
1: Newly Registered and Carry Forward Securities
| |
Security
Type |
Security
Class
Title(1) |
Fee
Calculation
or Carry
Forward
Rule |
Amount
Registered |
Proposed
Maximum
Offering
Price Per
Unit |
Maximum
Aggregate
Offering
Price(2) |
Fee
Rate |
Amount
of
Registration
Fee |
Carry
Forward
Form
Type |
Carry
Forward
File
Number |
Carry
Forward
Initial
effective
date |
Filing
Fee
Previously
Paid In
Connection
with Unsold
Securities
to be
Carried
Forward |
| Newly
Registered Securities |
| Fees
to Be Paid |
N/A |
N/A |
N/A |
N/A |
N/A |
N/A |
N/A |
N/A |
|
|
|
|
| Fees
Previously Paid |
N/A |
N/A |
N/A |
N/A |
N/A |
N/A |
N/A |
N/A |
|
|
|
|
| Carry
Forward Securities |
| Carry
Forward Securities |
Equity |
Common
Stock, par value $0.0001 per share(1) |
415(a)(6) |
(1) |
|
(2)(3) |
|
|
Form S-3 |
333-256527 |
June 7,
2021 |
(4) |
| Carry
Forward Securities |
Equity |
Preferred
Stock, par value $0.0001 per share(1) |
415(a)(6) |
(1) |
|
(2)(3) |
|
|
Form S-3 |
333-256527 |
June 7, 2021 |
(4) |
| Carry
Forward Securities |
Debt |
Debt
Securities(1) |
415(a)(6) |
(1) |
|
(2)(3) |
|
|
Form S-3 |
333-256527 |
June 7,
2021 |
(4) |
| Carry
Forward Securities |
Other |
Warrants(1) |
415(a)(6) |
(1) |
|
(2)(3) |
|
|
Form S-3 |
333-256527 |
June 7, 2021 |
(4) |
| Carry
Forward Securities |
Other |
Rights(1) |
415(a)(6) |
(1) |
|
(2)(3) |
|
|
Form S-3 |
333-256527 |
June 7, 2021 |
(4) |
| Carry
Forward Securities |
Other |
Units(1) |
415(a)(6) |
(1) |
|
(2)(3) |
|
|
Form S-3 |
333-256527 |
June 7, 2021 |
(4) |
| Carry
Forward Securities |
Unallocated
(Universal) Shelf |
Unallocated
(Universal) Shelf(1) |
415(a)(6) |
(1) |
|
$100,000,000
(2)(3) |
|
|
Form S-3 |
333-256527 |
June 7, 2021 |
$12,450(4) |
| |
Total Offering
Amounts |
|
$100,000,000 |
|
N/A |
|
|
|
|
| |
Total Fees
Previously Paid |
|
|
|
N/A |
|
|
|
|
| |
Total Fee Offsets |
|
|
|
N/A |
|
|
|
|
| |
Net Fee Due |
|
|
|
$0.00 |
|
|
|
|
| (1) This registration statement registers such indeterminate number
of shares of common stock and preferred stock, such indeterminate principal amount of debt securities, such indeterminate number
of warrants, rights to purchase common stock, preferred stock or debt securities, and such indeterminate number of units, as shall
have an aggregate initial offering price not to exceed $100,000,000. If any debt securities are issued at an original issue discount,
the offering price of such debt securities shall be in such greater principal amount as shall result in an aggregate initial offering
price not to exceed $100,000,000, less the aggregate dollar amount of all securities previously issued hereunder. Any securities
registered hereunder may be sold separately or as units with other securities registered hereunder. The proposed maximum initial
offering price per unit will be determined, from time to time, by the registrant in connection with the issuance by the registrant
of the securities registered hereunder. The securities registered also include such indeterminate number of shares of common stock
and preferred stock and amount of debt securities as may be issued upon conversion of or exchange for preferred stock or debt securities
that provide for conversion or exchange, upon exercise of warrants or rights or pursuant to the anti-dilution provisions of any such
securities. In addition, pursuant to Rule 416 under the Securities Act of 1933, as amended, the shares being registered hereunder
include such indeterminate number of shares of common stock and preferred stock as may be issuable with respect to the shares being
registered hereunder as a result of stock splits, stock dividends or similar transactions. |
| |
| (2) The proposed maximum aggregate offering price per class of
security will be determined from time to time by the registrant in connection with the issuance by the registrant of the securities
registered hereunder. |
| |
| (3) The proposed maximum aggregate offering price has been estimated
for the sole purpose of computing the registration fee pursuant to Rule 457(o) under the Securities Act of 1933 (the “Securities
Act”) and is exclusive of accrued interest, distributions and dividends, if any. |
| |
| (4) Pursuant to Rule 415(a)(6) under the Securities Act,
securities with a maximum aggregate price of $100,000,000 registered hereunder are unsold securities (the “Unsold Securities”)
previously covered by the Registrant’s registration statement on Form S-3 (File No. 333-256527) which was initially
filed with the Securities and Exchange Commission on May 27, 2021 and became effective on June 7, 2021 (the “Prior
Registration Statement”), and are included in this registration statement. The Prior Registration Statement, in turn, included
the Unsold Securities from the Registrant’s registration statement on Form S-3 (File No. 333-225073) which was initially
filed with the Securities and Exchange Commission on May 21, 2018 and became effective on May 30, 2018 (the “Original
Registration Statement”). The Registrant paid $1,599.82 and utilized fee offsets from prior filings with a combined value of
$10,850.18 to satisfy a combined filing fee of $12,450 for the Original Registration Statement (calculated at the filing fee rate
in effect at the time of the filing of the Original Registration Statement) relating to the Unsold Securities under the Original
Registration Statement. No additional filing fee is due with respect to the Unsold Securities in connection with the filing of this
registration statement. During the period afforded by Rule 415(a)(5) under the Securities Act, the Registrant may continue
to offer and sell under the Prior Registration Statement the Unsold Securities being registered hereunder. To the extent that, after
the filing date hereof and prior to the effectiveness of this registration statement, the Registrant sells any Unsold Securities
under the Prior Registration Statement, the Registrant will identify in a pre-effective amendment to this registration statement
the updated number of Unsold Securities from the Prior Registration Statement to be included in this registration statement pursuant
to Rule 415(a)(6) and the updated amount of new securities to be registered on this registration statement. Pursuant to
Rule 415(a)(6) under the Securities Act, the offering of Unsold Securities under the Prior Registration Statement will
be deemed terminated as of the date of effectiveness of this registration statement. |
|
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