TACO Del Taco Restaurants Inc

As filed with the Securities and Exchange Commission on July 14, 2015

Registration No. 333-205467

 

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

AMENDMENT NO. 1

to

FORM S-3/A

REGISTRATION STATEMENT

UNDER

THE SECURITIES ACT OF 1933

 

 

Del Taco Restaurants, Inc.

(Exact name of registrant as specified in its charter)

 

 

 

Delaware		46-3340980
(State or other jurisdiction of incorporation or organization)		(I.R.S. Employer Identification No.)

25521 Commercentre Drive

Lake Forest, CA 92630

(949) 462-9300

(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)

 

 

Paul J.B. Murphy, III

President and Chief Executive Officer

Del Taco Restaurants, Inc.

25521 Commercentre Drive

Lake Forest, CA 92630

Tel.: (949) 462-9300

(Name, address, including zip code, and telephone number, including area code, of agent for service)

 

 

Copies to:

Stanley H. Meadows, P.C., Esq.

Heidi Steele, Esq.

McDermott Will & Emery LLP

227 W. Monroe, Suite 4700

Chicago, IL 60606

 

 

Approximate date of commencement of proposed sale to the public: From time to time after this Registration Statement becomes effective.

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 or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act. (Check one):

 

Large accelerated filer		¨		Accelerated filer		x
Non-accelerated filer		¨  (Do not check if a smaller reporting company)		Smaller reporting company		¨

 

 

 

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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 which specifically states that this registration statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933 or until this registration statement shall become effective on such date as the Commission, acting pursuant to said Section 8(a), may determine.

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Item 16.

Exhibits.

See Exhibit Index.

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SIGNATURES

Pursuant to the requirements of the Securities Act of 1933, the undersigned registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Lake Forest, State of California, on July 14, 2015.

 

Pursuant to the requirements of the Securities Act, this registration statement has been signed by the following persons in the capacities and on July 14, 2015:

 

Signature				Capacity
*				Chairman of the Board of Directors
Lawrence F. Levy
/s/ Paul J.B. Murphy, III				President and Chief Executive Officer and Director
Paul J.B. Murphy, III				(principal executive officer)
*				Executive Vice President and Chief Financial Officer
Steven L. Brake				(principal financial and principal accounting officer)
*				Director
Ari B. Levy
*				Director
Patrick Walsh
*				Director
Eileen Aptman
*				Director
R.J. Melman
*				Director
Joseph Stein

* Pursuant to Power of Attorney

 

/s/ Paul J.B. Murphy III

Paul J.B. Murphy III, Attorney-in-fact

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EXHIBIT INDEX

 

Exhibit No.		Description
2.1†		Agreement and Plan of Merger, dated as of March 12, 2015, by and among Levy Acquisition Corp., Levy Merger Sub, LLC and Del Taco Holdings, Inc. (incorporated by reference to Exhibit 2.1 to Levy Acquisition Corp.’s Current Report on Form 8-K (File No. 001-36197) filed with the SEC on March 12, 2015).
3.1		Second Amended and Restated Certificate of Incorporation (incorporated by reference to Exhibit 3.1 to the registrant’s Current Report on Form 8-K filed on July 2, 2015).
3.2		Bylaws (incorporated by reference to Exhibit 3.3 to Levy Acquisition Corp.’s Registration Statement on Form S-1 (File No. 333-191587), filed with the Securities and Exchange Commission on October 7, 2013).
4.1		Specimen Common Stock Certificate (incorporated by reference to Exhibit 4.1 to the registrant’s Current Report on Form 8-K filed on July 2, 2015).
4.2		Warrant Agreement, dated as of November 13, 2013, between Levy Acquisition Corp. and Continental Stock Transfer & Trust Company (incorporated by reference to Exhibit 4.2 to Levy Acquisition Corp.’s Current Report on Form 8-K (File No. 001-36197), filed with the Securities and Exchange Commission on November 19, 2013).
4.3		Specimen Warrant Certificate (incorporated by reference to Exhibit 4.3 to the registrant’s Current Report on Form 8-K filed on July 2, 2015).
5.1		Opinion of McDermott Will & Emery LLP.
*23.1		Consent of KPMG, LLP.
*23.2		Consent of Rothstein Kass.
*23.3		Consent of Ernst & Young LLP.
23.4		Consent of McDermott Will & Emery (included in Exhibit 5.1).
*24.1		Power of Attorney.

 

†	The exhibits and schedules to this Exhibit have been omitted in accordance with Regulation S-K Item 601(b)(2). The Registrant agrees to furnish supplementally a copy of all omitted exhibits and schedules to the Securities and Exchange Commission upon its request.

*	Previously filed.

 

			Exhibit 5.1
Boston Brussels Chicago Dallas Dusseldorf Frankfurt Houston London Los Angeles Miami Milan Munich New York Orange County Paris Rome Seoul Silicon Valley Washington, D.C. Strategic alliance with MWE China Law Offices (Shanghai)

July 14, 2015

Del Taco Restaurants, Inc.

25521 Commercentre Drive

Lake Forest, CA 92630

Re: Del Taco Restaurants, Inc. Registration Statement on Form S-3

Ladies and Gentlemen:

We are providing this opinion in connection with the Registration Statement on Form S-3 (the “Registration Statement”) originally filed on July 2, 2015 by Del Taco Restaurants, Inc., a Delaware corporation (the “Corporation”), with the Securities and Exchange Commission under the Securities Act of 1933, as amended, with respect to the proposed sale of up to an aggregate of 36,443,163 shares of its common stock (the “Shares”). The Shares are being sold by the selling stockholders named in the Registration Statement. The Shares include (i) common stock issued by the Corporation in connection with its initial public offering and in connection with its business combination with Del Taco Holdings, Inc. (the “Issued Shares”), and (ii) shares of common stock of the Corporation issuable upon the exercise of outstanding warrants to purchase common stock of the Corporation (the “Warrants”).

We have examined: (i) the Registration Statement; (ii) the Corporation’s Amended and Restated Certificate of Incorporation and Amended and Restated Bylaws, each as amended to date; (iii) the minutes and corporate proceedings with respect to the Shares and the Warrants; and (iv) the warrant agreements with respect to the Warrants.

In addition to the examination outlined above, we have conferred with various officers of the Corporation and have ascertained or verified, to our satisfaction, such additional facts as we deemed necessary or appropriate for the purposes of this opinion. In our examination, we have assumed the authenticity of all documents submitted to us as originals, the conformity to the original documents of all documents submitted to us as copies, the genuineness of all signatures on documents reviewed by us and the legal capacity of natural persons.

Based on the foregoing, we are of the opinion that (i) the Shares issuable upon exercise of the Warrants have been duly authorized and reserved for issuance by the Corporation and, upon issuance and deliverance pursuant to the terms of the Warrants, will be validly issued, fully paid and nonassessable and (ii) the Issued Shares have been duly authorized, validly issued and fully paid and are nonassessable.

 

U.S. practice conducted through McDermott Will & Emery LLP.

227 West Monroe Street Chicago Illinois 60606-5096 Telephone: +1 312 372 2000 Facsimile: +1 312 984 7700 www.mwe.com

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This opinion is furnished to you solely for your benefit in connection with the filing of the Registration Statement and is not to be used, circulated, quoted or otherwise referred to for any other purpose without our prior written consent. Notwithstanding the foregoing, we hereby consent to the references to our firm in the Registration Statement and to the filing of this opinion by the Corporation as an Exhibit to the Registration Statement. In giving this consent, we do not hereby admit that we come within the category of persons whose consent is required under Section 7 of the Securities Act of 1933, as amended, or the rules and regulations of the Securities and Exchange Commission thereunder.

Very truly yours,

/s/ McDermott Will & Emery LLP