As
filed with the U.S. Securities and Exchange Commission on April __, 2021
Registration
No. 333-
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
S-3
REGISTRATION
STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
MUSCLE
MAKER, INC.
(Exact
name of Registrant as specified in its charter)
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Nevada
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47-2555533
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(State
or other jurisdiction of
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(I.R.S.
Employer
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incorporation
or organization)
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Identification
Number)
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2600
South Shore Blvd., Suite 300
League
City, Texas 77573
682-708-8250
(Address,
including zip code, and telephone number, including area code, of registrant’s principal executive offices)
Michael
Roper
Chief
Executive Officer
Muscle
Maker, Inc.
2600
South Shore Blvd., Suite 300
League
City, Texas 77573
682-708-8250
(Name,
address, including zip code, and telephone number, including area code, of agent for service)
Approximate
date of commencement of proposed sale to the public: From time to time, after the effective date of this registration statement.
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.
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Large
accelerated filer [ ]
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Accelerated
filer [ ]
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Non-accelerated
filer [X]
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Smaller
reporting company [X]
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Emerging
growth company [X]
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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. [ ]
CALCULATION
OF REGISTRATION FEE
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Title of
Each Class of Securities to be Registered
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Amount
to be Registered(1)
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Proposed
Maximum
Offering Price per Share (2)
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Proposed
Maximum
Aggregate Offering
Price
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Amount
of Registration
Fee (3)
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Common Stock, $0.0001 par value per share (4)
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8,395,063
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$
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1.70
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$
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14,271,607.10
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$
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1,557.03
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(1)
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Pursuant
to Rule 416 under the Securities Act of 1933, as amended (the “Securities Act”), the shares of common stock offered hereby
also include an indeterminate number of additional shares of common stock as may from time to time become issuable by reason of stock
splits, stock dividends, recapitalizations or other similar transactions.
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(2)
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Estimated
solely for the purpose of computing the amount of the registration fee pursuant to Rule 457(c) under the Securities Act based upon
the average of the high and low prices for a share of the registrant’s common stock as reported on The Nasdaq Capital Market
on April 26, 2021.
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(3)
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Calculated
in accordance with Rule 457(c) under the Securities Act.
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(4)
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Represents
the resale of (i) 1,250,000 shares of common stock, (ii) 2,865,227 shares of common stock issuable upon the exercise of the pre-funded
warrants issued in a private placement described herein, (iii) 4,115,227 shares of common stock issuable upon the exercise of the
warrants issued in a private placement described herein and (iv) 164,609 shares of common stock issuable upon the exercise of the
placement agent warrants issued in a private placement described herein.
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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 that specifically states that this Registration Statement shall thereafter become effective
in accordance with Section 8(a) of the Securities Act or until this Registration Statement shall become effective on such date as the
Commission, acting pursuant to said Section 8(a), may determine.
The
information in this prospectus is not complete and may be changed. The selling shareholders listed herein may not sell these securities
until the registration statement filed with the U.S. Securities and Exchange Commission becomes effective. This prospectus is not an
offer to sell the securities and it is not soliciting an offer to buy the securities in any state where offers or sales are not permitted.
PRELIMINARY
PROSPECTUS
Subject
to completion, dated April __, 2021
8,395,063
Shares of Common Stock
The
selling shareholders named in this prospectus may use this prospectus to offer and resell from time to time up to 8,395,063 shares of
our common stock, par value $0.0001 per share, which are comprised of (i) 1,250,000 shares (the “Shares”) of our common stock
issued in a private placement on April 9, 2021 (the “Private Placement”), pursuant to that certain Securities Purchase Agreement
by and among us and certain investors, dated as of April 7, 2021 (the “Securities Purchase Agreement”), (ii) 2,865,227 shares
(the “Pre-funded Warrant Shares”) of our common stock issuable upon the exercise of the pre-funded warrants (the “Pre-funded
Warrants”) issued in the Private Placement pursuant to the Securities Purchase Agreement, (iii) 4,115,227 shares (the “Common
Stock Warrant Shares” and together with the Pre-funded Warrant Shares, the “Warrant Shares”) of our common stock issuable
upon the exercise of the warrants (the “Common Stock Warrants” and together with the Pre-funded Warrants, the “Warrants”)
issued in the Private Placement pursuant to the Securities Purchase Agreement we issued to such investor and (iv) 164,609 shares (the
“Placement Agent Warrant Shares”) of our common stock issuable upon the exercise of the placement agent warrants (the “Placement
Agent Warrants”) issued in connection with the Private Placement.
We
are registering the offer and resale of the Shares and Warrant Shares to satisfy the provisions of that certain Securities Purchase Agreement,
dated April 7, 2021 (the “Securitas Purchase Agreement”), pursuant to which we agreed to register the resale of the Shares
and the Warrant Shares.
We
are not selling any common stock under this prospectus and will not receive any of the proceeds from the sale of shares by the selling
shareholders. We will, however, receive the net proceeds of any Warrants exercised for cash.
The
selling shareholders identified in this prospectus may offer the shares from time to time through public or private transactions at fixed
prices, at prevailing market prices at the time of sale, at prices related to the prevailing market price, at varying prices determined
at the time of sale, or at negotiated prices. The registration of the shares of common stock on behalf of the selling shareholders, however,
does not necessarily mean that any of the selling shareholders will offer or sell their shares under this registration statement or at
any time in the near future. We provide more information about how the selling shareholders may sell their shares of common stock in
the section entitled “Plan of Distribution” on page 20.
The
selling shareholders will bear all commissions and discounts, if any, attributable to the sale or disposition of the shares, or interests
therein and all costs, expenses and fees in connection with the registration of the shares. We will not be paying any underwriting discounts
or commissions in this offering or costs, expenses, and fees in connection with the registration of the shares of common stock described
in this prospectus. We will pay the expenses of registering the shares.
Our
common stock is traded on The Nasdaq Capital Market under the symbol “GRIL.” On April 26, 2021, the last reported sale price
of our common stock was $1.70 per share.
We
are an “emerging growth company” under the federal securities laws and, as such, are subject to reduced public company reporting
requirements.
We
may amend or supplement this prospectus from time to time by filing amendments or supplements as required. You should read the entire
prospectus and any amendments or supplements carefully before you make your investment decision.
An
investment in our common stock involves a high degree of risk. See “Risk Factors” on page 15 of this prospectus
for more information on these risks.
Neither
the U.S. Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities, or passed
upon the adequacy or accuracy of this prospectus. Any representation to the contrary is a criminal offense.
The
date of this prospectus is , 2021.
TABLE
OF CONTENTS
You
should rely only on the information provided in this prospectus, as well as the information incorporated by reference into this prospectus
and any applicable prospectus supplement. Neither we nor the selling shareholders have authorized anyone to provide you with different
information. Neither we nor the selling shareholders are making an offer of these securities in any jurisdiction where the offer is not
permitted. You should not assume that the information in this prospectus, any applicable prospectus supplement or any documents incorporated
by reference is accurate as of any date other than the date of the applicable document. Since the respective dates of this prospectus
and the documents incorporated by reference into this prospectus, our business, financial condition, results of operations and prospects
may have changed.
ABOUT
THIS PROSPECTUS
This
prospectus is part of a registration statement on Form S-3 that we filed with the Securities and Exchange Commission (the “SEC”),
using a “shelf” registration process for the delayed offering and sale of securities pursuant to Rule 415 under the Securities
Act of 1933, as amended (the “Securities Act”). Under this shelf registration process, the Selling Stockholders named in
this prospectus or any supplement to this prospectus may sell the securities described in this prospectus in one or more offerings. This
prospectus provides you with a general description of our Common Stock. Each Selling Stockholder is required to provide you with this
prospectus and, in certain cases, a prospectus supplement containing specific information about the Selling Stockholder and the terms
upon which the securities are being offered. A prospectus supplement may also add, update or change information contained in this prospectus.
You should read both this prospectus and any prospectus supplement together with the additional information described under the headings
“Incorporation by Reference” and “Where You Can Find More Information” below.
We
may also add, update or change information contained in this prospectus by means of a prospectus supplement or by incorporating by reference
information that we file or furnish to the SEC. The registration statement that we filed with the SEC includes exhibits that provide
more detail on the matters discussed in this prospectus. If the information in this prospectus is inconsistent with a prospectus supplement,
you should rely on the information in that prospectus supplement. Please carefully read this prospectus and any prospectus supplement,
together with the additional information described under the headings “Incorporation by Reference” and “Where You Can
Find More Information” before purchasing any securities.
You
should rely only on the information contained or incorporated by reference in this prospectus, any prospectus supplement and any issuer
free writing prospectus. “Incorporated by reference” means that we can disclose important information to you by referring
you to another document filed separately with the SEC. We have not authorized any other person to provide you with different information.
If anyone provides you with different information, you should not rely on it. The Selling Stockholders are not making an offer of these
securities in any state or jurisdiction where the offer is not permitted. You should only assume that the information in this prospectus
or in any prospectus supplement or issuer free writing prospectus is accurate only as of their respective dates. Our business, financial
condition, results of operations and prospects may have changed since those dates.
Unless
the context otherwise requires or as otherwise noted, we use the terms “Muscle Maker,” “company,” “we,”
“us” and “our” in this prospectus to refer to Muscle Maker, Inc. and its directly and indirectly owned subsidiaries
taken as a whole.
DISCLOSURE
REGARDING FORWARD-LOOKING STATEMENTS
This
prospectus and the documents incorporated by reference into this prospectus and any applicable prospectus supplement may contain forward-looking
statements within the meaning of Section 27A of the Securities Act and Section 21E of the Securities Exchange Act of 1934, as amended
(“Exchange Act”), about us and our subsidiaries. These forward-looking statements are intended to be covered by the safe
harbor for forward-looking statements provided by the Private Securities Litigation Reform Act of 1995. Forward-looking statements are
not statements of historical fact, and can be identified by the use of forward-looking terminology such as “believes,” “expects,”
“may,” “will,” “could,” “should,” “projects,” “plans,” “goal,”
“targets,” “potential,” “estimates,” “pro forma,” “seeks,” “intends,”
or “anticipates” or the negative thereof or comparable terminology. Forward-looking statements include, among other things,
statements about:
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The
novel coronavirus (COVID-19) outbreak has disrupted and is expected to continue to disrupt our business, which has and could continue
to materially affect our operations, financial condition and results of operations for an extended period of time.
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We
have a history of operating losses and our auditors have indicated that there is a substantial doubt about our ability to continue
as a going concern.
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We
will need additional capital to fund our operations, which, if obtained, could result in substantial dilution or significant debt
service obligations. We may not be able to obtain additional capital on commercially reasonable terms, which could adversely affect
our liquidity and financial position.
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We
face intense competition in our markets, which could negatively impact our business.
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Our
ability to continue to expand our digital business and delivery orders is uncertain, and these new business lines are subject to
risks.
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We
are vulnerable to changes in consumer preferences and economic conditions that could harm our business, financial condition, results
of operations and cash flow.
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Our
growth strategy depends in part on opening new restaurants in existing and new markets, including non-traditional locations such
as universities, office buildings, ghost kitchens, military bases, airports or casinos and expanding our franchise system. We may
be unsuccessful in opening new company-operated or franchised restaurants or establishing new markets, which could adversely affect
our growth.
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New
restaurants, once opened, may not be profitable or may close.
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Opening
new restaurants in existing markets may negatively impact sales at our and our franchisees’ existing restaurants.
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Our
sales growth and ability to achieve profitability could be adversely affected if comparable restaurant sales are less than we expect.
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Our
marketing programs may not be successful, and our new menu items, advertising campaigns and restaurant designs or remodels may not
generate increased sales or profits.
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We
rely on only one company to distribute substantially all of our food and supplies to company-operated and franchised restaurants,
and on a limited number of companies, and, in some cases, a sole company, to supply certain products, supplies and ingredients to
our distributor. Failure to receive timely deliveries of food or other supplies could result in a loss of revenues and materially
and adversely impact our operations.
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Changes
in food and supply costs or failure to receive frequent deliveries of food ingredients and other supplies could have an adverse effect
on our business, financial condition and results of operations.
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Our
revenue forecasts rely on an aggressive franchise unit sales strategy. In the event the forecasted numbers are not achieved, we will
have a material negative impact on future revenues.
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The
financial performance of our franchisees can negatively impact our business.
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We
have limited control with respect to the operations of our franchisees, which could have a negative impact on our business.
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Food
safety and quality concerns may negatively impact our business and profitability, our internal operational controls and standards
may not always be met and our employees may not always act professionally, responsibly and in our and our customers’ best interests.
Any possible instances of food-borne illness could reduce our restaurant sales.
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Restaurant
companies have been the target of class action lawsuits and other proceedings alleging, among other things, violations of federal
and state workplace and employment laws. Proceedings of this nature are costly, divert management attention and, if successful, could
result in our payment of substantial damages or settlement costs.
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We
are locked into long-term and non-cancelable leases and may be unable to renew leases at the end of their terms.
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Pandemics
or disease outbreaks, such as the current novel coronavirus (COVID-19 virus) pandemic may disrupt our business, which could materially
affect our operations and results of operations.
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If
we are unable to implement and maintain effective internal control over financial reporting in the future, investors may lose confidence
in the accuracy and completeness of our financial reports and the market price of our Common Stock may decline.
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As
an emerging growth company, our auditor is not required to attest to the effectiveness of our internal controls.
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As
a smaller reporting company and will be exempt from certain disclosure requirements, which could make our Common Stock less attractive
to the potential investors.
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Any
one or more of these uncertainties, risks and other influences could materially affect our results of operations and whether forward-looking
statements made by us ultimately prove to be accurate. Our actual results, performance and achievements could differ materially from
those expressed or implied in these forward-looking statements. We undertake no obligation to publicly update or revise any forward-looking
statements, whether from new information, future events or otherwise.
This
prospectus also contains estimates and other statistical data made by independent parties and by us relating to market size and growth
and other data about our industry. This data involves a number of assumptions and limitations, and you are cautioned not to give undue
weight to such estimates. In addition, projections, assumptions and estimates of our future performance and the future performance of
the markets in which we operate are necessarily subject to a high degree of uncertainty and risk.
We
caution our shareholders and other readers not to place undue reliance on such statements.
You
should read this prospectus and the documents incorporated by reference completely and with the understanding that our actual future
results may be materially different from what we currently expect. Our business and operations are and will be subject to a variety of
risks, uncertainties and other factors. Consequently, actual results and experience may materially differ from those contained in any
forward-looking statements. Such risks, uncertainties and other factors that could cause actual results and experience to differ from
those projected include, but are not limited to, the risk factors set forth herein under the title “Risk Factors,”
in our Annual Report on Form 10-K for the year ended December 31, 2020, and any updates described in our Quarterly Reports on Form 10-Q
and Current Reports on Form 8-K and elsewhere in the documents incorporated by reference into this prospectus and any applicable prospectus
supplement.
You
should assume that the information appearing in this prospectus and any document incorporated herein by reference is accurate as of its
date only. Because the risk factors referred to above could cause actual results or outcomes to differ materially from those expressed
in any forward-looking statements made by us or on our behalf, you should not place undue reliance on any forward-looking statements.
Further, any forward-looking statement speaks only as of the date on which the statement is made. New factors emerge from time to time,
and it is not possible for us to predict which factors will arise. In addition, we cannot assess the impact of each factor on our business
or the extent to which any factor, or combination of factors, may cause actual results to differ materially from those contained in any
forward-looking statements. All written or oral forward-looking statements attributable to us or any person acting on our behalf made
after the date of this prospectus and any applicable prospectus supplement are expressly qualified in their entirety by the risk factors
and cautionary statements contained in and incorporated by reference into this prospectus and any applicable prospectus supplement. Unless
legally required, we do not undertake any obligation to release publicly any revisions to such forward-looking statements to reflect
events or circumstances after the date of this prospectus and any applicable prospectus supplement or to reflect the occurrence of unanticipated
events.
SUMMARY
INFORMATION
The
following summary highlights some information from this prospectus. It is not complete and does not contain all of the information that
you should consider before making an investment decision. You should read this entire prospectus, including the “Risk Factors”
section on page 15, the financial statements and related notes and the other more detailed information appearing elsewhere or incorporated
by reference into this prospectus and any applicable prospectus supplement.
Overview
Muscle
Maker is a fast casual restaurant concept that specializes in preparing healthy-inspired, high-quality, fresh, made-to-order lean, protein-based
meals featuring chicken, seafood, pasta, hamburgers, wraps and flat breads. In addition, we feature freshly prepared entrée salads
and an appealing selection of sides, protein shakes and fruit smoothies. We operate in the fast casual restaurant segment.
We
believe our healthy-inspired restaurant concept delivers a highly differentiated customer experience. We combine the quality and hospitality
that customers commonly associate with our full service and fast casual restaurant competitors with the convenience and value customers
generally expect from traditional fast food restaurants, but in a healthy-inspired way. The following core values form the foundation
of our brand:
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Quality.
Commitment to provide high quality, healthy-inspired food for a perceived wonderful experience for our guests.
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Empowerment
and Respect. We seek to empower our employees to take initiative and give their best while respecting themselves and others to
maintain an environment for team work and growth.
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Service.
Provide world class service to achieve excellence each passing day.
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Value.
Our combination of high-quality, healthy-inspired food, empowerment of our employees, world class service, all delivered at an affordable
price, strengthens the value proposition for our customers.
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In
striving for these goals, we aspire to connect with our target market and create a great brand with a strong and loyal customer base.
As
of December 31, 2020, Muscle Maker and our subsidiaries and franchisees operated thirty-two Muscle Maker Grill restaurants located in
15 states and Kuwait, sixteen of which are owned and operated by Muscle Maker, and sixteen are franchise restaurants. Our company owned
and operated restaurants generated company restaurant revenue of $3,672,944 and $3,466,553 for the years ended December 31, 2020 and
2019, respectively. For the years ended December 31, 2020 and 2019, our total revenues which includes company restaurant sales, royalty,
franchise fee, rebate revenue derived from franchisees and other revenues were $4,473,447 and $4,959,005, respectively. As of December
31, 2020, we had an aggregate accumulated deficit of $63,193,707. We anticipate that we will continue to report losses and negative cash
flow. As a result of the net loss and cash flow deficit for the year ended December 31, 2020 and other factors, our independent registered
public accountants issued an audit opinion with respect to our financial statements for the year ended December 31, 2020 that indicated
that there is a substantial doubt about our ability to continue as a going concern.
We
are the owner of the trade name and service mark Muscle Maker Grill®, Healthy Joe’s, MMG Burger Bar, Meal Plan AF and other
trademarks and intellectual property we use in connection with the operation of Muscle Maker Grill® restaurants. We license the right
to use the Muscle Maker Grill® and Healthy Joe’s trademarks and intellectual property to our wholly-owned subsidiaries, Muscle
Maker Development and Muscle Maker Corp., and to further sublicense them to our franchisees for use in connection with Muscle Maker Grill®
and Healthy Joe’s restaurants.
On
March 25, 2021, we acquired the assets of Superfit Foods, a subscription based fresh-prepared meal prep business located in Jacksonville,
Florida. With this acquisition, we are also the owner of the trade name Superfit Foods that we use in connection with the operations
of Superfit Foods. In 2020 Superfit foods produced overs 220,000 fresh-prepared meals. Superfit Foods is differentiated from other meal
prep services by allowing customers in the Jacksonville Florida market to order online via the company’s website or mobile app
and pick up their fully prepared meals from 28 company owned coolers located in gyms and wellness centers.
Seasonal
factors and the timing of holidays cause our revenue to fluctuate from quarter to quarter. Our revenue per restaurant is typically lower
in the fourth quarter due to reduced November and December traffic and higher traffic in the first, second, and third quarters.
In
March 2020, the World Health Organization declared the outbreak of a novel coronavirus (COVID-19) as a pandemic which continues to spread
throughout the United States. In response to the COVID-19 outbreak, “shelter in place” orders and other public health measures
were implemented across much of the United States and continue in limited fashion across the country.
The
COVID-19 global pandemic continues to rapidly evolve. The Company is continually monitoring the outbreak of COVID-19 and the related
business and travel restrictions and changes to behavior intended to reduce its spread, and its impact on operations, financial position,
cash flows, inventory, supply chains, purchasing trends, customer payments, and the industry in general, in addition to the impact on
its employees. The pandemic has resulted in a negative impact on the Company’s operations during the year ended December 31, 2020
and continues through out 2021.
As
a result of the pandemic the Company has limited its operations through limiting hours of operations, reduced its capacity and utilized
a delivery only concept as mandated by each state and has temporarily closed five of our Company owned locations during the second quarter
of 2020. In addition, the Company opened two new locations at the end of the third quarter of 2020 on university campuses that
were subsequently temporarily closed due to the impact of COVID-19 on students returning to campus. As of the date of the filing of this
report the Company re-opened five of the seven temporarily closed locations and permanently closed two underperforming locations. Commencing
in the second quarter of 2020 the Company provided royalty relief to its franchisees by deferring half of their royalties earned by the
Company through July 2020. The Company has not attempted to collect the deferred royalties as of the date of the filing of this report
as we provide time for the franchise locations to fully recover to pre-pandemic conditions. The executive team deferred a portion of
their salaries in 2020 and some members continue to defer salary as of the date of the filing of this report. In addition, various franchisee
locations had to take similar actions by temporarily closing their locations and limiting their operations as mandated by each state.
As of the date of the filing of this report seven of the franchise locations have permanently closed.
Due
to the rapid development and fluidity of this situation, the magnitude and duration of the pandemic and its impact on the Company’s
operations and liquidity is uncertain as of the date of this report. While there could ultimately be an additional material impact on
operations and liquidity of the Company, the full impact could not be determined, as of the date of this prospectus.
Our
Industry
We
operate within the Limited-Service Restaurant, or LSR, segment, of the United States restaurant industry, which includes quick service
restaurants, or QSR, and fast-casual restaurants. We offer fast-casual quality food combined with quick-service speed, convenience and
value across multiple dayparts. We believe our differentiated, high-quality healthy-inspired menu delivers great value all day, every
day and positions us to compete against both QSR and fast-casual concepts.
We
expect that the upward trend towards healthier eating will attract and increase consumer demand for fresh and hand-prepared dishes, which
may lead to a positive impact on our sales.
Our
Strategy
While
our 2020 business plan and the restaurant industry in general was interrupted and modified due to Covid-19, we re-positioned the Company
to better support an anticipated change in the restaurant industry. Our revised strategy continues to focus on serving “healthier
for you” meals in non-traditional locations and methods while emphasizing a shift into delivery, ghost kitchens, direct to consumer
meal prep and strategic acquisitions. We believe the restaurant industry has experienced a change in the way consumers interact with
brands. We believe consumers have become more dependent on new technologies, unique locations and new methodologies to access restaurants.
We believe we have positioned the company in a unique way for future growth in a post-covid environment where consumers rely on new methods
to order and access restaurant meals such as third-party delivery services, ghost kitchens and direct to consumer shipments of meal plans.
In implementing our revised business plan, we plan to pursue the following strategies.
Expand
Our System-Wide Restaurant Base. Our strategy focuses on non-traditional locations. We believe these locations offer somewhat of
a buffer against macro-economic forces. These locations tend to be destination locations, captured audiences or inside other larger venues.
Our current focus is on military bases, college campuses and ghost kitchens while also increasing our consumer reach through direct to
consumer meal plan delivery via UPS or customer pickup.
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Military
Bases: As of December 31, 2020, we had 6 open military locations. These locations are mostly in food court settings on military bases.
These tend to be captured audiences but also support visitors, base personnel and military member families.
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College
Campuses: As of December 31, 2020, we have built 4 college campus locations with the Northern Virginia Community College System.
These locations were built in anticipation of students attending classes post-covid and the intent is to re-open these locations
in the summer or fall semester of 2021. In addition to these four locations, we also have one university location under agreement
at the Texas Tech Medical Center in El Paso Texas. This location is currently in the construction phase.
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Ghost
Kitchens: As of December 31, 2020, we had five free standing ghost kitchen locations open in Chicago and Philadelphia. We currently
have five additional locations under agreement for New York City, Miami and Providence. The ghost kitchens run multiple brands out
of one location which include Muscle Maker Grill, Healthy Joes, Meal Plan AF, Muscle Maker Burger Bar, Bowls Deep, Wrap It Up, Salad
Vibes and other concepts. Each location can support 6-8 different concepts all running out of one ghost kitchen. This creates the
appearance of 6-8 different restaurants to consumers for ordering various entrees but leverages ingredients and infrastructure across
all concepts to reduce the number of ingredients needed for each concept.
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In
addition, in 2020, the Company purchased 2 existing franchise locations and is in the process of launching additional ghost kitchens
out of these locations in addition to Muscle Maker Grill offerings.
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For
year ended 2020, we opened six new company-operated restaurants of which five locations are delivery only ghost kitchen locations.
In addition, we purchased two franchise locations that are now company-operated.
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Improve
Comparable Restaurant Sales. We plan to improve comparable restaurant sales growth through the following strategies:
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Menu
Strategy and Evolution. We will continue to adapt our menu to create entrees that complement
our healthy-inspired offerings and that reinforce our differentiated fast casual positioning.
We believe we have opportunities for menu innovation as we look to provide customers more
choices through customization and limited time only alternative proteins, recipes and other
healthy-inspired ingredients. Our marketing and operations teams collaborate to ensure that
the items developed in our test stores can be executed to our high standards in our restaurants
with the speed and value that our customers have come to expect. To provide added variety,
from time to time we introduce limited time offerings such as our grass-fed hamburger bar
menu, smoothie of the month program, keto your way menu, healthy tacos and other seasonal
items. Some of these items have been permanently added to the menu.
In
November 2019, we opened our first Healthy Joe’s concept. This was formerly a Muscle Maker Grill location located in Tribeca
New York that was converted into the Healthy Joe’s concept. Healthy Joe’s focuses on healthier for your recipes and products
featuring a different menu than a typical Muscle Maker Grill. The concept is designed to attract a wider audience and features menu
items such as wild caught salmon, fresh brewed iced teas, fresh lemonades, locally baked breads, house made avocado smash, fruits,
nuts and other new trending menu items. The menu features hot topped bowls, salads and oven toasted sandwiches. All protein, cheese
and sauces are run though a 500-degree oven to add a unique approach to serving our products. Due to the temporary Covid related
closure of this new concept in 2020, we plan on relaunching the grand opening in 2021 as the Covid related restrictions are relaxed
in New York City.
The
Company is in the process of expanding the menu offerings in most of our non-military company owned and operated locations through
ghost kitchen concepts within the existing Muscle Maker Grill locations. This allows company locations to leverage existing facilities
and labor to launch unique brands without the added infrastructure costs normally associated with opening a new concept. For example,
in our Chelsea Muscle Maker Grill location, we also run several ghost kitchen concepts out of the same facility. These ghost kitchen
concepts include Healthy Joe’s and Muscle Maker Burger Bar.
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Attract
New Customers Through Expanded Brand Awareness: Our goal is to attract new customers
as the Muscle Maker Grill brand becomes more widely known due to new restaurant openings
and marketing efforts focused on broadening the reach and appeal of our brand. The goal of
our marketing efforts is to have consumers become more familiar with Muscle Maker Grill as
we continue to penetrate our markets, which we believe will benefit our existing restaurant
base. Our marketing strategy centers on our “Great Food with Your Health in Mind”
campaign, which highlights the desirability of healthy-inspired food and in-house made or
proprietary recipe quality of our food. We utilize various marketing techniques including
email, text, social media, print, influencers, press releases and local store marketing.
We believe the restaurant industry has changed over the past year and consumer preferences
have shifted towards an emphasis on convenience, speed and mobility in a safe environment.
This has led to an increase in home delivery and direct to consumer meal prep/plan offerings.
We believe Muscle Maker Grill has the ability to adjust our business strategy to accommodate
these consumer trends as we are not locked in to extensive four wall location leases and
are able to transform the business to meet consumer needs.
In
2020, the company expanded its delivery services through third-party delivery companies such as Uber Eats, GrubHub, DoorDash, Seamless
and others.
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Continue
to Grow Dayparts: We currently have multiple dayparts and segments where revenue is generated
in our restaurants. These dayparts and segments include: lunch, dinner, catering, smoothies/protein
shakes and meal prep/plans in all of our locations, and breakfast in select locations. We
expect to drive growth across our dayparts through enhanced menu offerings, innovative merchandising
and marketing campaigns. We plan to continue introducing and marketing limited time offers
to increase occasions across our dayparts as well as to educate customers on our lunch and
dinner offerings. Muscle Maker Grill has the unique opportunity to grow in the pre-packaged,
portion-controlled meal prep/plan category. Currently, we offer pre-portioned and packaged
meal prep/plans for consumers who want to specifically plan their weekly meals for dietary
or nutritional needs. These meal plans can be delivered to a consumer’s home or picked
up at each restaurant location. Third party delivery services such as Uber Eats, Grub Hub,
DoorDash, Seamless and others offer an expansion beyond the four walls of our restaurants
and represents a growing segment of our overall revenue.
On
November 11, 2020, the Company announced an agreement with Happy Meal Prep to launch an online meal plan/prep direct to consumer
mail delivery service. This agreement allows Muscle Maker Grill to mail pre-made, ready to eat meals direct to consumers within a
250-mile radius around specific locations. Consumers can currently select from over 40 meal prep options. The company has continued
to expand the network of locations offering direct to consumer meal plan shipping throughout 2021. The company operates this program
under the musclemakerprep.com website.
On
March 30, 2021, the Company completed a strategic acquisition by acquiring the assets of Superfit Foods, LLC, a fresh-prepared meal
prep business located in Jacksonville, Florida. Superfit Foods is a perfect example of the accretive businesses we are looking to
acquire – as it has sustained revenue growth, supports our non-traditional strategy and is a driver to help get the Company
to grow through acquisitions rather than just through organic growth. Superfit Foods has experienced significant growth since its
inception with revenue increasing by double digits year over year – even during the height of the pandemic. This same pattern
of revenue growth continued in the first quarter of 2021.
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Our
Strengths
Iconic
and Unique Concept: We provide guests healthy-inspired versions of mainstream-favorite dishes that are intended to taste great, in
our effort to make it convenient, affordable and enjoyable to eat healthier. Our diverse menu was created for everyone – fitness
enthusiasts, those starting their journey to a healthier lifestyle, and people trying to eat better while on-the-go.
We
are focused on expanding our presence within new and existing markets by continuing to add franchise partners to our system and increasing
the number of corporate-owned locations. Our corporate-owned restaurants will focus on an expansion in non-traditional locations such
as military bases, universities and ghost kitchens while also offering direct to consumer pre-made meal prep/plan offerings to consumers
within a 250 mile radius around certain locations. We believe our concept is a unique fit with the military’s “Operation
Live Well” campaign and a focus on healthier eating habits.
We
believe ghost kitchens offer a unique way to expand the brand into new and existing markets with lower capital costs yet provide the
ability to make rapid changes to fit consumer needs. We believe consumers are looking for alternate ways to interact with restaurants
and receive meals. Using non-traditional locations, third party delivery, ghost kitchens and direct to consumer meal plans offers consumers
multiple choices on how to access Muscle Maker Grill concepts.
Innovative,
Healthier Menu: Providing “Great Food with Your Health in Mind,” Muscle Maker Grill’s menu features items with
grass-fed steak, all-natural chicken, lean turkey and plant-based products as well as options that satisfy all dietary preferences –
from the carb-free consumer to guests following gluten-free or vegetarian diets. Muscle Maker Grill does not sacrifice taste to serve
healthy-inspired options. We boast superfoods such as avocado, kale, quinoa, broccoli, romaine and spinach, and use only healthy-inspired
carbohydrate options such as cauliflower or brown rice and whole wheat pasta. We develop and source proprietary sauces and fat free or
zero-carb dressings to enhance our unique flavor profiles. Our open style kitchen allows guests to experience our preparation and cooking
methods such as an open flame grill and sauté. In addition to our healthy-inspired and diverse food platform, Muscle Maker Grill
offers 100% real fruit smoothies, boosters and proprietary protein shakes as well as retail supplements.
Muscle
Maker Grill prides itself on making healthy-inspired versions of the guest’s favorite food, giving them easy access to the food
they seek at our restaurants. This means catering to an array of healthier eating lifestyles. For over 20 years Muscle Maker Grill has
been providing food to gluten-free diners, low-carbohydrate consumers and vegetarians. We offer over 30 versions of salads, wraps, bowls,
sandwiches and flatbreads.
Cook
to Order Preparation: We work to provide our guests their meals prepared in less time than a typical fast casual restaurant. While
our service time may be slightly higher than the QSR fast casual segment, it fits well within the range of the fast-casual segment.
Daypart
Mix and Revenue Streams: Standard operating hours for a Muscle Maker Grill are from 10:30 AM to 8:30 PM, Monday through Friday, 11:00
AM to 6:00 PM, Saturday and Sunday. However, many of our locations are closed on Sunday. Our daypart mix is typical to the QSR fast casual
segment which is 5% pre-lunch, 45% lunch, 35% dinner and 15% late evening. We have multiple revenue streams including: dine-in, take-out,
delivery, catering, meal plans and retail.
Attractive
Price Point and Perceived Value: Muscle Maker Grill offers meals with free ‘power sides’ beginning at $8.99 per meal,
using only high quality ingredients such as grass-fed beef, all-natural chicken, whole wheat pastas, brown rice and a power blend of
kale, romaine and spinach. Our cook to order method, speed of service, hospitality and the experience of our exhibition style kitchen
creates a great value perception for our customers. Meal Plan meals begin at $6.99 per meal, which we believe make them not only convenient
but affordable too.
Delivery:
A significant differentiator is that Muscle Maker Grill offers delivery at many locations nation-wide. Delivery is an option through
our online ordering platform making it easy and convenient for our guests. Delivery percentages range from 10% up to 75% of sales in
our corporate locations. We strongly believe the delivery segment will continue to grow as our core demographic has demonstrated the
need for online ordering and delivery versus dine-in and take-out. We and our franchise owners leverage employees for local delivery
but also uses third party services such as Uber Eats, GrubHub, DoorDash, Seamless and others to fulfill delivery orders. Stand alone
ghost kitchen locations are 100% delivery.
Catering:
Our diverse menu items are also offered through our catering program making it easy and affordable to feed a large group. Our boxed
lunch program, which includes a wrap, salad, or entrée, a side and a drink for a set price is available within schools and other
organizations.
Meal
Prep/Plans: To make healthy-inspired eating even easier, Muscle Maker Grill’s healthy-inspired nutritionally focused menu items
are available through our Meal Prep/Plan program, allowing pre-orders of meals via phone, online or in-store, available for pick up or
delivered right to their door. Available as five, 10, 15 or 20 meals, guests can choose from over 40 Muscle Maker Grill menu items for
each meal. With the partnership with Happy Meal Prep, Muscle Maker Grill is now able to ship meals direct to consumers within a 250-mile
radius of participating locations.
Retail:
All Muscle Maker Grill locations participate in our retail merchandising and supplement program. This is a unique revenue stream
specific to the Muscle Maker Grill brand and is atypical in the QSR fast casual segment. Guests can purchase our propriety protein in
bulk, supplements, boosters, protein and meal replacement bars and cookies. This program gives our guests the opportunity to manage their
healthy lifestyle beyond meals they consume at our locations.
Implications
of Being an Emerging Growth Company
As
a company with less than $1.07 billion in revenue during our last fiscal year, we qualify as an “emerging growth company”
as defined in Rule 12b-2 of the Securities Exchange Act or 1934, as amended, which we refer to as the Exchange Act. An “emerging
growth company” may take advantage of reduced reporting requirements that are otherwise applicable to public companies. These provisions
include, but are not limited to:
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being
permitted to present only two years of audited financial statements and only two years of related Management’s Discussion and
Analysis of Financial Condition and Results of Operations in this prospectus;
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not
being required to comply with the auditor attestation requirements of Section 404(b) of the Sarbanes-Oxley Act of 2002, or the Sarbanes-Oxley
Act;
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reduced
disclosure obligations regarding executive compensation in our periodic reports, proxy statements and registration statements; and
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exemptions
from the requirements of holding a nonbinding advisory vote on executive compensation and stockholder approval of any golden parachute
payments not previously approved.
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We
may take advantage of these provisions until the last day of our fiscal year following the fifth anniversary of the date of the first
sale of our common equity securities pursuant to an effective registration statement under the Securities Act of 1933, as amended, which
we refer to as the Securities Act. However, if certain events occur before the end of such five-year period, including if we become a
“large accelerated filer,” our annual gross revenues exceed $1.07 billion or we issue more than $1.07 billion of non-convertible
debt in any three-year period, we will cease to be an “emerging growth company” before the end of such five-year period.
We
have elected to take advantage of certain of the reduced disclosure obligations and may elect to take advantage of other reduced reporting
requirements in future filings. As a result, the information that we provide to our stockholders may be different than the information
you might receive from other public reporting companies in which you hold equity interests.
To
the extent that we continue to qualify as a “smaller reporting company,” as such term is defined in Rule 12b-2 under the
Exchange Act, after we cease to qualify as an “emerging growth company,” certain of the exemptions available to us as an
“emerging growth company” may continue to be available to us as a smaller reporting company, including: (1) not being required
to comply with the auditor attestation requirements of Section 404(b) of the Sarbanes-Oxley Act; (2) scaled executive compensation disclosures;
and (3) the ability to provide only two years of audited financial statements, instead of three years.
Company
Information
Our
principal executive office is located at 2600 South Shore Blvd., Suite 300, League City, Texas 77573. Our telephone number is (682) 708-8250.
Our website address is www.musclemakergrill.com. Information contained in, or accessible through, our website does not constitute
a part of this prospectus or any prospectus supplement.
PRIVATE
PLACEMENT
On
April 7, 2021, the Company entered into a Securities Purchase Agreement with an accredited investor (the “Securities Purchase Agreement”)
for a private placement (the “Private Placement”) pursuant to which the investor signatory thereto (the “Purchaser”)
agreed to purchase from the Company for an aggregate purchase price of approximately $10,000,000 (i) 1,250,000 shares (the “Shares”)
of common stock, par value $0.0001 per share, of the Company (the “Common Stock”) (ii) a common stock purchase warrant to
purchase up to 4,115,227 shares of Common Stock (the “Common Warrant”) and (iii) a pre-funded common stock purchase warrant
to purchase up to 2,865,227 shares of Common Stock (the “Pre-Funded Warrant”). Each Share and accompanying Common Warrant
is being sold together at a combined offering price of $2.43 per Share and Common Warrant, and each Pre-Funded Warrant and accompanying
Common Warrant is being sold together at a combined offering price of $2.42 per Pre-Funded Warrant and accompanying Common Warrant. The
Pre-Funded Warrant is immediately exercisable, at a nominal exercise price of $0.01 per share, and may be exercised at any time until
the Pre-Funded Warrant is fully exercised. The Common Warrant will have an exercise price of $2.43 per share, are immediately exercisable
and will expire five and one-half (5.5) years from the date of issuance. The Private Placement closed on April 9, 2021.
Pursuant
to a placement agency agreement, dated April 6, 2021, between the Company and A.G.P./Alliance Global Partners (the “Placement Agent”)
entered into in connection with the Private Offering, the Placement Agent acted as the sole placement agent for the Private Placement
and the Company has paid customary placement fees to the Placement Agent, including a cash fee equal to 8% of the gross proceeds raised
in the Private Placement and a common stock purchase warrant to purchase 164,609 shares of Common Stock, which warrant has an exercise
price of $2.916 per share and is exercisable commencing six months from the date of the pricing of the Private Placement for a period
of five years after such date. Pursuant to the Placement Agency Agreement, the Company has also agreed to reimburse certain expenses
of the placement agent incurred in connection with the Private Placement
The
Private Placement closed on April 9, 2021. In connection with the Private Placement, the Company agreed to prepare and file a registration
statement with respect to the resale of the Shares and the Warrant Shares.
The
securities issued pursuant to the Securities Purchase Agreement and the Placement Agency Agreement were issued pursuant to an exemption
from registration under Section 4(a)(2) and/or Rule 506 of Regulation D, which is promulgated under the Securities Act of 1933, as amended
(the “Securities Act”). The Company relied on this exemption from registration based in part on representations made by the
parties to such agreements.
THE
OFFERING
Pursuant
to this prospectus, the Selling Stockholders are offering on a resale basis an aggregate of 8,395,063 shares of our common stock, par
value $0.0001 per share, which are comprised of (i) 1,250,000 shares (the “Shares”) of our common stock issued in a private
placement on April 9, 2021 (the “Private Placement”), pursuant to that certain Securities Purchase Agreement by and among
us and certain investors, dated as of April 7, 2021 (the “Securities Purchase Agreement”), (ii) 2,865,227 shares (the “Pre-funded
Warrant Shares”) of our common stock issuable upon the exercise of the pre-funded warrants (the “Pre-funded Warrants”)
issued in the Private Placement pursuant to the Securities Purchase Agreement, (iii) 4,115,227 shares (the “Common Stock Warrant
Shares” and together with the Pre-funded Warrant Shares, the “Warrant Shares”) of our common stock issuable upon the
exercise of the warrants (the “Common Stock Warrants” and together with the Pre-funded Warrants, the “Warrants”)
issued in the Private Placement pursuant to the Securities Purchase Agreement we issued to such investors and (iv) 164,609 shares (the
“Placement Agent Warrant Shares”) of our common stock issuable upon the exercise of the placement agent warrants (the “Placement
Agent Warrants”) issued in connection with the Private Placement.
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Common
Stock to be offered by the Selling Stockholders
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8,395,063
shares of our Common Stock, including 2,865,227 shares of our common stock issuable upon the exercise of the Pre-funded Warrants,
4,115,227 shares of our common stock issuable upon the exercise of the Common Stock Warrant Shares and 164,609 shares of common stock
issuable upon the exercise of the Placement Agent Warrant issued to the Selling Stockholders
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Common
Stock outstanding prior to this offering
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13,826,734
shares.
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Common
Stock to be outstanding after this offering
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20,971,797
shares (assuming the exercise of Warrants Shares and the Placement Agent Warrants. The 1,250,000 Shares has been
issued in the private placement on April 9, 2021 and is already included in the Common Stock outstanding prior to this
offering).
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Use
of Proceeds
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We
will not receive any of the proceeds from the sale by the Selling Stockholders of the Common Stock. Upon any exercise of the Warrants
Shares and the Placement Agent Warrants by payment of cash, however, we will receive the exercise price of the Warrants. See
“Use of Proceeds” on page 15 of this prospectus.
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Risk
Factors
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You
should read the “Risk Factors” section beginning on page 15 of this prospectus for a discussion of factors to consider
carefully before deciding to invest in shares of our securities.
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Nasdaq
Capital Market symbol
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Our
Common Stock is listed on The Nasdaq Capital Market under the symbol “GRIL.” We do not intend to apply for listing of
the Warrants on any securities exchange or nationally recognized trading system
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RISK
FACTORS
Investing
in our securities involves a high degree of risk. Before investing in our securities, you should carefully consider the risks, uncertainties
and assumptions contained in this prospectus and discussed under the heading “Risk Factors” included in our Annual Report
on Form 10-K for the year ended December 31, 2020 and subsequent Quarterly Reports on Form 10-Q, which are on file with the SEC and 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, including any accompanying prospectus supplement and the documents incorporated by reference therein. Our business,
financial condition, results of operations and future growth prospects could be materially and adversely affected by any of these risks.
In these circumstances, the market price of our Common Stock could decline, and you may lose all or part of your investment.
USE
OF PROCEEDS
The
net proceeds from any disposition of the shares of common stock covered hereby will be received by the selling shareholders. We will
not receive any of the proceeds from any such shares of common stock offered by this prospectus. We will, however, receive the net proceeds
of any Warrants or Placement Agent Warrants exercised for cash. We expect to use the proceeds received from the exercise of the Warrants
or Placement Agent Warrants, if any, for the development of our product candidates and general working capital purposes.
SELLING
SHAREHOLDERS
The
Common Stock being offered by the Selling Stockholders are those previously issued to the Selling Stockholders, and those issuable to
the Selling Stockholders, upon exercise of the Warrants and the Placement Agent Warrants. For additional information regarding the issuances
of those shares of Common Stock, Warrants and the Placement Agent Warrants, see “Private Placement” above. We are registering
the shares of Common Stock in order to permit the Selling Stockholders to offer the shares for resale from time to time. Except for the
ownership of the shares of Common Stock and the Warrants, the Selling Stockholders have not had any material relationship with us within
the past three years.
The
table below lists the Selling Stockholders and other information regarding the beneficial ownership of the shares of Common Stock by
each of the Selling Stockholders. The first column lists the number of shares of Common Stock beneficially owned by each Selling Stockholder,
based on its ownership of the shares of Common Stock and Warrants, as of April 26, 2021, assuming exercise of the Warrants held by the
Selling Stockholders on that date, without regard to any limitations on exercises.
The
second column lists the shares of Common Stock being offered by this prospectus by the Selling Stockholders.
In
accordance with the terms of a Securitas Purchase Agreement with the Selling Stockholders, this prospectus generally covers the resale
of the sum of (i) the number of shares of Common Stock issued to the Selling Stockholders pursuant to the Securities Purchase Agreement
and (ii) the maximum number of shares of Common Stock issuable upon exercise of the Warrants, determined as if the outstanding Warrants
were exercised in full as of the trading day immediately preceding the date this registration statement was initially filed with the
SEC, each as of the trading day immediately preceding the applicable date of determination and all subject to adjustment as provided
in the Securitas Purchase Agreement, without regard to any limitations on the exercise of the Warrants. The third and fourth columns
assume the sale of all of the shares of Common Stock offered by the Selling Stockholders pursuant to this prospectus. Except as noted
below, beneficial ownership is determined in accordance with Section 13(d) of the Exchange Act and Rule 13d-3 thereunder. The percentage
of shares beneficially owned prior to the offering was based on 13,826,734 shares of our Common Stock outstanding as of April 26, 2021.
Under
the terms of the Warrants and the Placement Agent Warrants, a Selling Stockholder may not exercise the Warrants to the extent such exercise
would cause such Selling Stockholder, together with its affiliates and attribution parties, to beneficially own a number of shares of
Common Stock which would exceed 9.99% of our then outstanding Common Stock following such exercise, excluding for purposes of such determination
shares of Common Stock issuable upon exercise of the Warrants which have not been exercised. The number of shares in the second column
does not reflect this limitation. The Selling Stockholders may sell all, some or none of their shares in this offering. See “Plan
of Distribution.”
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Shares
of Common Stock
Beneficially Owned Prior
to the Offering
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Shares
of Common
Stock Being Offered
Hereby
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Shares
of Common Stock
Beneficially Owned After
Completion of the Offering
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Name
of Selling Stockholder
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Number
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Number
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Number
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Percent
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Armistice Capital
Master Fund Ltd. (1)
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1,395,588
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8,230,454
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0
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*
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A.G.P./Alliance Global Partners
(2)
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164,609
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164,609
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0
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*
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* denotes less than 1%
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(1)
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Armistice
Capital Master Fund Ltd beneficially owns (i) 1,250,000 shares of the common stock of the
Company (ii) 4,115,227 shares of common stock of the Company which are subject to presently
exercisable purchase warrants and (iii) 2,865,227 shares of common stock of the Company which
are subject to presently exercisable pre-funded purchase warrants. Beneficial ownership as
reflected in the Selling Stockholder table reflects the total number of shares potentially
issuable underlying warrants and does not give effect to these beneficial ownership limitations.
Accordingly, actual beneficial ownership, as calculated in accordance with Section 13(d)
and Rule 13d-3 thereunder may be lower than as reflected in the table. Beneficial ownership
is determined in accordance with Rule 13d-3 under the Exchange Act. In computing the number
of shares beneficially owned by a person and the percentage ownership of the Selling Stockholders,
securities that are currently exercisable into shares of our common stock, or exercisable
into shares of our common stock within 60 days of the date hereof are deemed outstanding.
There is a beneficial ownership limitation on the warrants and prefunded warrants owned by
the holder that limits beneficial ownership of the holder to 9.99% of the number of shares
of common stock outstanding immediately after giving effect to the issuance of shares of
common stock issuable upon exercise of the warrant at any time. The beneficial ownership
limitation can be increase by the holder by giving written notice to the Company, but this
will not take effect until 61 days after the delivery of the notice to the Company. Armistice
Capital Master Fund LTD is managed by Armistice Capital, LLC, its investment manager. Steven
Boyd, the managing member of Armistice Capital, LLC has the sole voting and investment power
over the securities held by Armistice Capital Master Fund LTD.
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(2)
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Represents
a Placement Agent Warrant to purchase up to 164,609 shares of common stock issued in the Private Placement. The
Placement Agent Warrants contain an ownership limitation such that the holder may not exercise any such warrants to the extent that
such exercise would result in the holder’s beneficial ownership being in excess of 9.99% of the Company’s issued and
outstanding common stock together with all shares owned by the holder and its affiliates.
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DESCRIPTION
OF CAPITAL STOCK
The
following is a summary description of the material terms of our common stock as provided in our Articles of Incorporation, as amended
(“Articles of Incorporation”) and Bylaws (“Bylaws”), copies of which are incorporated by reference as exhibits
to the registration statement of which this prospectus forms a part. The following discussion is only a summary and may not contain all
the information that is important to you or that you should consider before investing in our stock, and is qualified in its entirety
by reference to the complete text of the Articles of Incorporation and Bylaws. For a more detailed description of these securities, you
should read the applicable provisions of Nevada law, our Articles of Incorporation, our Bylaws and the reports that we file with the
SEC, which are incorporated herein by reference.
General
As
of the date of this prospectus, our authorized capital stock consisted of 25,000,000 shares of common stock, $0.0001 par value per share.
As of the date of this prospectus, there were 13,826,734 shares of our common stock issued and outstanding and no shares of preferred
stock issued and outstanding.
Common
Stock
Voting
Rights
Except
as required by law or matters relating solely to the terms of preferred stock, each outstanding share of common stock is entitled to
one vote on all matters submitted to a vote of stockholders. Holders of shares of our common stock shall have no cumulative voting rights.
Except in respect of matters relating to the election and removal of directors on our board of directors and as otherwise provided in
our articles of incorporation or required by law, all matters to be voted on by our stockholders must be approved by a majority of the
shares present in person or by proxy at the meeting and entitled to vote on the subject matter. In the case of election of directors,
all matters to be voted on by our stockholders must be approved by a plurality of the voting power of the shares present in person or
by proxy at the meeting and entitled to vote thereon.
Liquidation
In
the event of the liquidation, dissolution or winding up of our company, holders of our common stock are entitled to share ratably in
the net assets legally available for distribution to stockholders after the payment of all of our debts and other liabilities and the
satisfaction of any liquidation preference granted to the holders of any then outstanding shares of preferred stock.
Rights
and Preferences
Holders
of our common stock have no preemptive, conversion, subscription or other rights, and there are no redemption or sinking fund provisions
applicable to our common stock. The rights, preferences and privileges of the holders of our common stock are subject to, and may be
adversely affected by, the rights of the holders of shares of any series of our preferred stock that we may designate in the future.
Options
As
of date of this prospectus, we had options to purchase 100,000 shares of our common stock outstanding pursuant to the 2020 Plan with
an exercise price of $5.00.
Warrants
As
of the date of this prospectus, we had outstanding warrants to purchase 9,703,281 shares of common stock issued in connection with certain
financings, with a weighted average exercise price of $2.14 per share.
Anti-Takeover
Effects of Our Articles of Incorporation and Bylaws
Our
articles of incorporation and bylaws contain certain provisions that could have the effect of delaying, deferring or discouraging another
party from acquiring control of us. These provisions, which are summarized below, could discourage takeovers, coercive or otherwise.
These provisions are also designed, in part, to encourage persons seeking to acquire control of us to negotiate first with our board
of directors. We believe that the benefits of increased protection of our potential ability to negotiate with an unfriendly or unsolicited
acquirer outweigh the disadvantages of discouraging a proposal to acquire us.
Authorized
but Unissued Capital Stock
We
have authorized but unissued shares of preferred stock and common stock, and our board of directors may authorize the issuance of one
or more series of preferred stock without stockholder approval. These shares could be used by our board of directors to make it more
difficult or to discourage an attempt to obtain control of us through a merger, tender offer, proxy contest or otherwise.
Limits
on Stockholder Action to Call a Special Meeting
Our
bylaws will provide that special meetings of the stockholders may be called only by the affirmative vote of a majority of the whole board,
chairperson of the board, the chief executive officer or our board of directors. A stockholder may not call a special meeting, which
may delay the ability of our stockholders to force consideration of a proposal or for holders controlling a majority of our capital stock
to take any action, including the removal of directors.
Requirements
for Advance Notification of Stockholder Nominations and Proposals
Our
amended and restated bylaws will establish advance notice procedures with respect to stockholder proposals and the nomination of candidates
for election as directors, other than nominations made by or at the direction of our board of directors or a committee of the board of
directors. These may have the effect of precluding the conduct of certain business at a meeting if the proper procedures are not followed
and may also discourage or deter a potential acquirer from conducting a solicitation of proxies to elect our own slate of directors or
otherwise attempt to obtain control of our company.
Limitation
on Liability and Indemnification Matters
Our
articles of incorporation, which will be in effect upon the completion of this offering, contains provisions that limit the liability
of our directors for monetary damages to the fullest extent permitted by Nevada law. Consequently, our directors will not be personally
liable to us or our stockholders for monetary damages for any breach of fiduciary duties as directors, except liability for:
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any
breach of the director’s duty of loyalty to us or our stockholders;
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any
act or omission not in good faith or that involves intentional misconduct or a knowing violation of law; and
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any
transaction from which the director derived an improper personal benefit.
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Our
articles of incorporation and bylaws to be in effect upon the completion of this offering provide that we are required to indemnify our
directors and officers, in each case to the fullest extent permitted by Nevada law. Our amended and restated bylaws also will provide
that we are obligated to advance expenses incurred by a director or officer in advance of the final disposition of any action or proceeding,
and permit us to secure insurance on behalf of any officer, director, employee or other agent for any liability arising out of his or
her actions in that capacity regardless of whether we would otherwise be permitted to indemnify him or her under the provisions of Nevada
law. We have entered and expect to continue to enter into agreements to indemnify our directors, executive officers and other employees
as determined by our board of directors. With specified exceptions, these agreements provide for indemnification for related expenses
including, among other things, attorneys’ fees, judgments, fines and settlement amounts incurred by any of these individuals in
any action or proceeding. We believe that these bylaw provisions and indemnification agreements are necessary to attract and retain qualified
persons as directors and officers. We also maintain directors’ and officers’ liability insurance.
The
limitation of liability and indemnification provisions in our articles of incorporation and bylaws may discourage stockholders from bringing
a lawsuit against our directors and officers for breach of their fiduciary duty. They may also reduce the likelihood of derivative litigation
against our directors and officers, even though an action, if successful, might benefit us and other stockholders. Further, a stockholder’s
investment may be adversely affected to the extent that we pay the costs of settlement and damage awards against directors and officers
as required by these indemnification provisions. 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 Securities and Exchange Commission, such indemnification is against public policy as expressed in the Securities
Act, and is, therefore, unenforceable. At present, there is no pending litigation or proceeding involving any of our directors, officers
or employees for which indemnification is sought, and we are not aware of any threatened litigation that may result in claims for indemnification.
Transfer
Agent and Registrar
Computershare,
Inc. is our transfer agent and registrar. Its address is 462 South 4th Street, Suite 1600, Louisville, KY 40202, and its telephone
number is 1-877-373-6374.
Nasdaq
Capital Market Listing
Our
common stock is listed on The Nasdaq Capital Market under the symbol “GRIL.”
Warrants
Registered Pursuant to this Registration Statement
Pre-Funded
Warrants
Each
Pre-Funded Warrant is exercisable until exercised in full at an exercise price of $0.001 per share and may be exercised by means of a
cashless exercise. The Company is prohibited from effecting an exercise of the Pre-Funded Warrants to the extent that, as a result of
such exercise, the holder together with the holder’s affiliates, would beneficially own more than 9.99% of the number of shares
of common stock outstanding immediately after giving effect to the issuance of the Pre-Funded Warrant Shares upon exercise of the Pre-Funded
Warrants, which beneficial ownership limitation may be increased by the holder up to, but not exceeding, 9.99%.
Common
Stock Warrants
Each
Common Stock Warrant is exercisable for a period of five and a half years from the issuance date at an exercise price of $2.43 per share,
subject to adjustment. If, at any time after the issuance date of the Common Stock Warrant, a registration statement covering the resale
of the Common Stock Warrant Shares is not effective, the holders may exercise the Common Stock Warrants by means of a cashless exercise.
The Company is prohibited from effecting an exercise of the Common Stock Warrants to the extent that, as a result of such exercise, the
holder together with the holder’s affiliates, would beneficially own more than 9.99% of the number of shares of common stock outstanding
immediately after giving effect to the issuance of the Common Stock Warrant Shares upon exercise of the Common Stock Warrant, which beneficial
ownership limitation may be increased by the holder up to, but not exceeding, 9.99%.
Placement
Agent Warrants
The
Placement Agent Warrants are exercisable for a period of five years from the issuance date at an exercise price of $2.916 per share,
subject to adjustment. If, at any time after the issuance date of the Placement Agent Warrants, a registration statement covering the
resale of the Placement Agent Warrant Shares is not effective, the holders may exercise the Placement Agent Warrants by means of a cashless
exercise. The Company is prohibited from effecting an exercise of the Placement Agent Warrants to the extent that, as a result of such
exercise, the holder together with the holder’s affiliates, would beneficially own more than 9.99% of the number of shares of common
stock outstanding immediately after giving effect to the issuance of the Placement Agent Warrant Share upon exercise of the Placement
Agent Warrants.
PLAN
OF DISTRIBUTION
Each
Selling Stockholder of the securities and any of their pledgees, assignees and successors-in-interest may, from time to time, sell any
or all of their securities covered hereby on the principal Trading Market or any other stock exchange, market or trading facility on
which the securities are traded or in private transactions. These sales may be at fixed or negotiated prices. A Selling Stockholder may
use any one or more of the following methods when selling securities:
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ordinary
brokerage transactions and transactions in which the broker-dealer solicits purchasers;
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block
trades in which the broker-dealer will attempt to sell the securities as agent but may position and resell a portion of the block
as principal to facilitate the transaction;
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purchases
by a broker-dealer as principal and resale by the broker-dealer for its account;
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an
exchange distribution in accordance with the rules of the applicable exchange;
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privately
negotiated transactions;
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settlement
of short sales;
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in
transactions through broker-dealers that agree with the Selling Stockholders to sell a specified number of such securities at a stipulated
price per security;
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through
the writing or settlement of options or other hedging transactions, whether through an options exchange or otherwise;
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a
combination of any such methods of sale; or
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any
other method permitted pursuant to applicable law.
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The
Selling Stockholders may also sell securities under Rule 144 or any other exemption from registration under the Securities Act of 1933,
if available, rather than under this prospectus.
Broker-dealers
engaged by the Selling Stockholders may arrange for other brokers-dealers to participate in sales. Broker-dealers may receive commissions
or discounts from the Selling Stockholders (or, if any broker-dealer acts as agent for the purchaser of securities, from the purchaser)
in amounts to be negotiated, but, except as set forth in a supplement to this Prospectus, in the case of an agency transaction not in
excess of a customary brokerage commission in compliance with FINRA Rule 2121; and in the case of a principal transaction a markup or
markdown in compliance with FINRA Rule 2121.
In
connection with the sale of the securities or interests therein, the Selling Stockholders may enter into hedging transactions with broker-dealers
or other financial institutions, which may in turn engage in short sales of the securities in the course of hedging the positions they
assume. The Selling Stockholders may also sell securities short and deliver these securities to close out their short positions, or loan
or pledge the securities to broker-dealers that in turn may sell these securities. The Selling Stockholders may also enter into option
or other transactions with broker-dealers or other financial institutions or create one or more derivative securities which require the
delivery to such broker-dealer or other financial institution of securities offered by this prospectus, which securities such broker-dealer
or other financial institution may resell pursuant to this prospectus (as supplemented or amended to reflect such transaction).
The
Selling Stockholders and any broker-dealers or agents that are involved in selling the securities may be deemed to be “underwriters”
within the meaning of the Securities Act in connection with such sales. In such event, any commissions received by such broker-dealers
or agents and any profit on the resale of the securities purchased by them may be deemed to be underwriting commissions or discounts
under the Securities Act. Each Selling Stockholder has informed the Company that it does not have any written or oral agreement or understanding,
directly or indirectly, with any person to distribute the securities.
The
Company is required to pay certain fees and expenses incurred by the Company incident to the registration of the securities. The Company
has agreed to indemnify the Selling Stockholders against certain losses, claims, damages and liabilities, including liabilities under
the Securities Act.
We
agreed to keep this prospectus effective until the earlier of (i) the date on which the securities may be resold by the Selling Stockholders
without registration and without regard to any volume or manner-of-sale limitations by reason of Rule 144, without the requirement for
the Company to be in compliance with the current public information under Rule 144 under the Securities Act or any other rule of similar
effect or (ii) all of the securities have been sold pursuant to this prospectus or Rule 144 under the Securities Act or any other rule
of similar effect. The resale securities will be sold only through registered or licensed brokers or dealers if required under applicable
state securities laws. In addition, in certain states, the resale securities covered hereby may not be sold unless they have been registered
or qualified for sale in the applicable state or an exemption from the registration or qualification requirement is available and is
complied with.
Under
applicable rules and regulations under the Exchange Act, any person engaged in the distribution of the resale securities may not simultaneously
engage in market making activities with respect to the common stock for the applicable restricted period, as defined in Regulation M,
prior to the commencement of the distribution. In addition, the Selling Stockholders will be subject to applicable provisions of the
Exchange Act and the rules and regulations thereunder, including Regulation M, which may limit the timing of purchases and sales of the
common stock by the Selling Stockholders or any other person. We will make copies of this prospectus available to the Selling Stockholders
and have informed them of the need to deliver a copy of this prospectus to each purchaser at or prior to the time of the sale (including
by compliance with Rule 172 under the Securities Act).
LEGAL
MATTERS
The
validity of the issuance of the securities offered hereby will be passed upon for us by Fleming PLLC, New York, New York. Additional
legal matters may be passed upon for us or any underwriters, dealers, or agents by counsel that we will name in the applicable prospectus
supplement.
EXPERTS
Marcum
LLP, our independent registered public accounting firm, has audited our consolidated financial statements at December 31, 2020 and
2019 as set forth in their report. The consolidated financial statements have been incorporated by reference in the prospectus and in the registration statement in reliance on Marcum LLP’s report which includes an explanatory paragraph about the
existence of substantial doubt concerning our ability to continue as a going concern, given on their authority as experts in
accounting and auditing.
WHERE
YOU CAN FIND MORE INFORMATION
This
prospectus is part of a registration statement we filed with the SEC. This prospectus does not contain all of the information set forth
in the registration statement and the exhibits to the registration statement. For further information with respect to us and the securities
the Selling Stockholders are offering under this prospectus, we refer you to the registration statement and the exhibits and schedules
filed as a part of the registration statement. You should rely only on the information contained in this prospectus or incorporated by
reference in this prospectus. We have not authorized anyone else to provide you with different information. We are not making an offer
of these securities in any state where the offer is not permitted. You should not assume that the information in this prospectus is accurate
as of any date other than the date on the front page of this prospectus, regardless of the time of delivery of this prospectus or any
sale of the securities offered by this prospectus.
We
file annual, quarterly and current reports, proxy statements and other information with the SEC. Our SEC filings are available to the
public from commercial document retrieval services and over the Internet at the SEC’s website at http://www.sec.gov.
You
can also obtain copies of materials we file with the SEC from our website found at www.musclemakergrill.com. Information on our
website does not constitute a part of, nor is it incorporated in any way, into this prospectus and should not be relied upon in connection
with making an investment decision.
INCORPORATION
OF DOCUMENTS BY REFERENCE
The
SEC allows us to incorporate by reference information into this document. This means that we can disclose important information to you
by referring you to another document filed separately with the SEC. 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 incorporate
by reference the documents listed below and any future filings made with the SEC under Sections 13(a), 13(c), 14, or 15(d) of the Exchange
Act made subsequent to the date of this prospectus until the termination of the offering of the securities described in this prospectus
(other than information in such filings that was “furnished,” under applicable SEC rules, rather than “filed”).
We
incorporate by reference the following documents or information that we have filed with the SEC:
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our
Annual Report on Form 10-K for the fiscal year ended December 31, 2020, filed with the SEC on April 15, 2021;
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our
Current Reports on Form 8-K (other than Current Reports furnished under Item 2.02 or Item 7.01 of Form 8-K and exhibits filed on
such form that are related to such items) filed with the SEC on March 30, 2021 and April 12, 2021;
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the
description of our common stock contained in our registration statement on Form 8-A filed with the SEC on February 2, 2020, including
any amendments or reports filed with the SEC for the purposes of updating such description.
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Any
statement contained in this prospectus or contained in a document incorporated or deemed to be incorporated by reference into this prospectus
will be deemed to be modified or superseded to the extent that a statement contained in this prospectus or any subsequently filed supplement
to this prospectus, or document deemed to be incorporated by reference into this prospectus, modifies or supersedes such statement.
You
may request a copy of these filings at no cost, by writing or telephoning us at the following address:
Muscle
Maker, Inc.
2600
South Shore Blvd., Suite 300
League
City, Texas 77573
682-708-8250
You
should rely only on the information incorporated by reference or provided in this prospectus or in any prospectus supplement. We have
not authorized anyone else to provide you with different or additional information. An offer of these securities is not being made in
any jurisdiction where the offer or sale is not permitted. You should not assume that the information in this prospectus or any prospectus
supplement is accurate as of any date other than the date on the front of those documents.
8,395,063
Shares of Common Stock
PROSPECTUS
We
have not authorized any dealer, salesperson, or other person to give you written information other than this prospectus or to make representations
as to matters not stated in this prospectus. You must not rely on unauthorized information. This prospectus is not an offer to sell these
securities or our solicitation of your offer to buy these securities in any jurisdiction where that would not be permitted or legal.
Neither the delivery of this prospectus nor any sales made hereunder after the date of this prospectus shall create an implication that
the information contained herein or the affairs of the Company have not changed since the date of this prospectus.
PART
II
INFORMATION
NOT REQUIRED IN PROSPECTUS
Item
14. Other Expenses of Issuance and Distribution.
The
following table sets forth an estimate of the fees and expenses relating to the issuance and distribution of the securities being registered
hereby, other than underwriting discounts and commissions, all of which shall be borne by the selling stockholders. All of such fees
and expenses, except for the SEC Registration Fee, are estimated:
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SEC registration fee
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$
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1,557.03
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Legal fees and expenses
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$
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20,000.00
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Printing fees and expenses
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$
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2,500.00
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Accounting fees and expenses
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$
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15,000.00
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Miscellaneous fees and expenses
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$
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2,000.00
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Total
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$
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41,057.03
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Item
15. Indemnification of Officers and Directors.
Our
Articles 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 (including, without limitation, as a witness) in any 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 is or was serving at our request
as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, whether the
basis of such action, suit or proceeding is alleged action in an official capacity as a director, officer or trustee or in any other
capacity while serving as a director, officer or trustee, shall be indemnified and held harmless by us to the fullest extent authorized
by the Nevada Revised Statutes, or NRS, against all expense, liability and loss (including attorneys’ fees and amounts paid in
settlement) reasonably incurred or suffered by such.
NRS
78.7502 permits a corporation to indemnify any director or officer of the corporation against expenses (including attorneys’ fees)
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 (i) is not liable pursuant to NRS 78.138
and (ii) acted in good faith and in a manner which 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, had no reasonable cause to believe the 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 the suit if such
person (i) is not liable pursuant to NRS 78.138 and (ii) acted in good faith and in a manner which 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 court in which the action or suit was brought or
some other court of competent jurisdiction determines that such person is fairly and reasonably entitled to indemnity for such expenses
as the court deems proper.
Our
Articles of Incorporation provide that the liability of our directors and officers shall be eliminated or limited to the fullest extent
permitted by the NRS. NRS 78.138(7) provides that, subject to limited statutory exceptions and unless the articles of incorporation or
an amendment thereto provide for greater individual liability, a director or officer is not individually liable to a corporation or its
stockholders or creditors for any damages as a result of any act or failure to act in his or her capacity as a director or officer unless
it is proven that: (i) the act or failure to act constituted a breach of his or her fiduciary duties as a director or officer and (ii)
the breach of those duties involved intentional misconduct, fraud or a knowing violation of law.
We
have entered into indemnification agreements with our directors and certain officers, in addition to the indemnification permitted under
the NRS and provided under our Articles of Incorporation and our Bylaws, and intend to enter into indemnification agreements with any
new directors and 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 Articles of Incorporation, Bylaws, indemnification agreements, indemnity agreement, and Nevada law is not
intended to be exhaustive and is qualified in its entirety by such Articles of Incorporation, Bylaws, indemnification agreements, indemnity
agreement, or law.
Item
16. Exhibits.
a)
Exhibits.
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Exhibit
Numbers
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Exhibit
Description
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3.1
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Articles of Incorporation of Muscle Maker, Inc., a Nevada corporation (incorporated by reference to Exhibit 3.1 to the Registrant’s Current Report on Form 8-K filed on November 14, 2019)
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3.2
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Bylaws of Muscle Maker, Inc. (incorporated by reference to Exhibit 3.1 to the Registrant’s Current Report on Form 8-K filed on November 14, 2019)
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3.3
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Certificate of Change Pursuant to NRS 78.209 (incorporated by reference to Exhibit 3.1 to the Registrant’s Current Report on Form 8-K filed on December 11, 2019)
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3.4
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Certificate of Amendment to Articles of Incorporation of Muscle Maker, Inc., a Nevada corporation (incorporated by reference to Exhibit 3.1 to the Registrant’s Quarterly Report on Form 10-Q filed on November 16, 2020)
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4.1
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Form of Warrant to Purchase Common Stock dated April 9, 2021 (incorporated by reference to Exhibit 4.1 to the Registrant’s Current Report on Form 8-K filed on April 12, 2021)
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4.2
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Form of Pre-Funded Warrant to Purchase Common Stock dated April 9, 2021 (incorporated by reference to Exhibit 4.2 to the Registrant’s Current Report on Form 8-K filed on April 12, 2021)
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4.3
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Form of Warrant to Purchase Common Stock issued to A.G.P./Alliance Global Partners dated April 9, 2021 (incorporated by reference to Exhibit 4.3 to the Registrant’s Current Report on Form 8-K filed on April 12, 2021)
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5.1*
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Opinion of Fleming PLLC as to the legality of the securities being registered
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10.1
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Form of Securities Purchase Agreement, dated April 7, 2021, between Muscle Maker, Inc. and the Purchaser (incorporated by reference to Exhibit 10.1 to the Registrant’s Current Report on Form 8-K filed on April 12, 2021)
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10.2
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Placement Agency Agreement between Muscle Maker, Inc. and A.G.P./Alliance Global Partners dated April 6, 2021 (incorporated by reference to Exhibit 10.2 to the Registrant’s Current Report on Form 8-K filed on April 12, 2021)
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23.1*
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Consent of Marcum LLP
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23.2*
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Consent of Fleming PLLC (included in Exhibit 5.1)
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24.1
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Power of Attorney (included on signature pages to the registration statement).
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*
Filed herewith.
Item
17. Undertakings.
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(1)
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The
undersigned registrant hereby undertakes:
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a.
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To
file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
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i.
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To
include any prospectus required by Section 10(a)(3) of the Securities Act of 1933, as amended (the “Securities Act”);
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ii.
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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 SEC pursuant to Rule 424(b) if,
in the aggregate, the changes in volume and price represent no more than 20% change in the maximum aggregate offering price set forth
in the “Calculation of Registration Fee” table in the effective registration statement; and
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iii.
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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;
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provided,
however, that the undertaking set forth in paragraphs (1)(a)(i), (1)(a)(ii) and (1)(a)(iii) above do not apply if the information required
to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the SEC by the registrant
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), 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;
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b.
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That,
for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof; and
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c.
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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.
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d.
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That,
for the purpose of determining liability under the Securities Act to any purchaser:
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i.
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Each
prospectus filed by a 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
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ii.
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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 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 the prospectus relates, and the offering of such securities at that time shall be deemed to
be the initial bona fide offering thereof.
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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.
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(2)
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The
undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of
the registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each
filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference
in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
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(3)
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Insofar
as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons
of the undersigned registrant, pursuant to the foregoing provisions, or otherwise, the registrant has 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. 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 undersigned registrant in the successful defense of any action, suit
or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities
Act and will be governed by the final adjudication of such issue.
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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 League City, State of Texas, on April 30, 2021.
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MUSCLE
MAKER, INC.
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By:
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/s/
Michael Roper
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Michael
Roper
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Chief
Executive Officer
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POWER
OF ATTORNEY
KNOW
ALL PERSONS BY THESE PRESENTS, that each individual whose signature appears below constitutes and appoints Michael Roper, his/her true
and lawful attorney-in-fact and agent with full power of substitution and re-substitution, for him/her and in his/her name, place and
stead, in any and all capacities to sign any or all amendments (including, without limitation, post-effective amendments) to this Registration
Statement, any related Registration Statement filed pursuant to Rule 462(b) under the Securities Act of 1933, as amended, and any or
all pre- or post-effective amendments thereto, and to file the same, with all exhibits thereto, and all other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent, full power and authority to do
and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully for all intents and purposes
as he or she might or could do in person, hereby ratifying and confirming that said attorney-in-fact and agent, or any substitute or
substitutes for him, may lawfully do or cause to be done by virtue hereof.
Pursuant
to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed by the following persons in
the capacities and on the dates indicated.
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Signature
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Title
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Date
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/s/ Michael
J. Roper
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Chief
Executive Officer and Secretary
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April
30, 2021
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Michael
J. Roper
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(Principle
Executive Officer)
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/s/ Ferdinand
Groenewald
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Chief
Financial Officer
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April
30, 2021
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Ferdinand
Groenewald
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(Principal
Financial and Accounting Officer)
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/s/ Kevin
Mohan
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Chief
Investment Officer and Chairman of the Board
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April
30, 2021
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Kevin
Mohan
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/s/ Stephen
A. Spanos
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Director
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April
30, 2021
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Stephen
A. Spanos
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/s/ A.B.
Southall III
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Director
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April
30, 2021
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A.B.
Southall III
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/s/ Paul
L. Menchik
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Director
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April
30, 2021
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Paul
L. Menchik
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/s/ Jeff
Carl
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Director
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April
30, 2021
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Jeff
Carl
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/s/
Peter S. Petrosian
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Director
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April
30, 2021
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Peter
S. Petrosian
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/s/
Malcolm Frost
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Director
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April
30, 2021
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Major
General (Ret) Malcolm B. Frost
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/s/
Philip Balatsos
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Director
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April
30, 2021
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Philip
Balatsos
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