As
filed with the Securities and Exchange Commission on May 21,
2007.
Registration
No. 333-_________
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
__________________________
FORM
S-8
REGISTRATION
STATEMENT
Under
the
Securities Act of 1933
__________________________
ORGANIC
TO GO FOOD CORPORATION
(Exact
name of registrant as specified in its charter)
|
Delaware
(State
or other jurisdiction of incorporation or organization)
|
|
58-2044900
(IRS
Employee Identification No.)
|
3317
Third Avenue South
Seattle,
Washington 98134
(Address
of principal executive offices) (Zip code)
______________________________________________________
2007
EQUITY PARTICIPATION PLAN OF ORGANIC TO GO FOOD
CORPORATION
(Full
title of the plan)
Jason
Brown, Chief Executive Officer
3317
Third Avenue South
Seattle,
Washington 98134
(206)
838-4670
(Name,
address and telephone number of agent for service)
Copies
to:
Gerald
Chizever, Esq.
Lawrence
Venick, Esq.
Loeb
& Loeb LLP
10100
Santa Monica Blvd., Suite 2200
Los
Angeles, CA 90067
(310)
282-2000
|
Calculation
of Registration Fee
|
|
Title
of securities to be registered
|
Amount
to be registered (1)
|
Proposed
maximum offering price per share (2)
|
Proposed
maximum aggregate offering price(2)
|
Amount
of registration fee
|
|
Common
stock, $.001 par value per share
|
3,600,000
|
$2.23
|
$8,028,000
|
$246.46
|
|
(1)
|
In
the event of a stock split, stock dividend, or similar transaction
involving the registrant’s Common Stock, the number of shares registered
hereby shall automatically be increased to cover the additional shares
in
accordance with Rule 416(a) under the Securities Act of 1933, as
amended
(the “Securities Act”).
|
|
(2)
|
Estimated
solely for the purpose of calculating the amount of the registration
fee
pursuant to Rule 457(h) under the Securities Act, and represents the
average closing bid and ask prices of the Common Stock of the registrant
as reported on the OTC Bulletin Board on May 16, 2007 as to the 3,600,000
shares available for future grant under the
plan.
|
PART
I
The
information called for in Part I of Form S-8 is not being filed with or included
in this Form S-8 (by incorporation by reference or otherwise) in accordance
with
the rules and regulations of the Securities and Exchange Commission (the
“SEC”).
PART
II
Item
3. Incorporation of Documents by Reference.
The
following documents filed with the SEC by Organic To Go Food Corporation (the
“Company”), are incorporated as of their respective dates in this Registration
Statement by reference:
| |
1.
|
The
Company’s Annual Report on Form 10-KSB for the fiscal year ended December
31, 2006, filed with the SEC on April 2,
2007;
|
| |
2.
|
The
Company’s Quarterly Report on Form 10-QSB for the period ended March 31,
2007, filed with the SEC on May 16,
2007;
|
| |
3.
|
The
Company’s Current Reports on Form 8-K, filed with the SEC on January 4,
2007, January 17, 2007, February 13, 2007, February 28, 2007, March
9,
2007, May 11, 2007 and May 21, 2007;
and
|
| |
4.
|
The
description of the Company’s securities contained in the Company’s
Registration Statement on Form 8-A under Section 12 of the Securities
Exchange Act of 1934 (the “Exchange Act”), filed with the SEC on July 19,
1996, including any amendment or report filed for the purpose of
updating
such description.
|
All
documents filed by the Company pursuant to Section 13(a), 13(c) 14 and 15(d)
of
the Exchange Act, after the date of this Registration Statement and prior to
the
filing of a post-effective amendment which indicates that all securities offered
hereby have been sold or which deregisters all securities then remaining unsold
are incorporated by reference in this Registration Statement and are part hereof
from the date of filing such documents. A report on From 8-K furnished to the
SEC shall not be incorporated by reference into this Registration Statement.
Any
statement contained in a document incorporated or deemed to be incorporated
by
reference herein shall be deemed to be modified or superseded for purposes
of
this Registration Statement to the extent that a statement contained herein
or
in any other subsequently filed document which also is or is deemed to be
incorporated by reference herein modifies or supersedes such statement. Any
such
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this Registration Statement.
Item
4. Description of Securities.
Not
applicable.
Item
5. Interests of Named Experts and Counsel.
Not
applicable.
Item
6. Indemnification of Directors and Officers.
The
Company’s Restated Certificate of Incorporation and Amended and Restated Bylaws
provide that the Company may indemnify an officer or director who is made a
party to any proceeding, because of his position as such, to the fullest extent
authorized by Delaware General Corporation Law, as the same exists or may
hereafter be amended. The Company is subject to Section 145 of the Delaware
General Corporation Law, set forth below.
“Section
145. Indemnification of officers, directors, employees and agents;
insurance.
“(a)
A
corporation shall have power to indemnify any person who was or is a party
or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of the corporation) by reason of the
fact that the person is or was a director, officer, employee or agent of the
corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorneys’
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by the person in connection with such action, suit or proceeding if
the
person acted in good faith and in a manner the person reasonably believed to
be
in or not opposed to the best interests of the corporation, and, with respect
to
any criminal action or proceeding, had no reasonable cause to believe the
person’s conduct was unlawful. The termination of any action, suit or proceeding
by judgment, order, settlement, conviction, or upon a plea of nolo contendere
or
its equivalent, shall not, of itself, create a presumption that the person
did
not act in good faith and in a manner which the person reasonably believed
to be
in or not opposed to the best interests of the corporation, and, with respect
to
any criminal action or proceeding, had reasonable cause to believe that the
person’s conduct was unlawful.
“(b)
A
corporation shall have power to indemnify any person who was or is a party
or is
threatened to be made a party to any threatened, pending or completed action
or
suit by or in the right of the corporation to procure a judgment in its favor
by
reason of the fact that the person is or was a director, officer, employee
or
agent of the corporation, or is or was serving at the request of the corporation
as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise against expenses (including attorneys’
fees) actually and reasonably incurred by the person in connection with the
defense or settlement of such action or suit if the person acted in good faith
and in a manner the person reasonably believed to be in or not opposed to the
best interests of the corporation and except that no indemnification shall
be
made in respect of any claim, issue or matter as to which such person shall
have
been adjudged to be liable to the corporation unless and only to the extent
that
the Court of Chancery or the court in which such action or suit was brought
shall determine upon application that, despite the adjudication of liability
but
in view of all the circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expenses which the Court of Chancery
or such other court shall deem proper.
“(c)
To
the extent that a present or former director or officer of a corporation has
been successful on the merits or otherwise in defense of any action, suit or
proceeding referred to in subsections (a) and (b) of this section, or in defense
of any claim, issue or matter therein, such person shall be indemnified against
expenses (including attorneys’ fees) actually and reasonably incurred by such
person in connection therewith.
“(d)
Any
indemnification under subsections (a) and (b) of this section (unless ordered
by
a court) shall be made by the corporation only as authorized in the specific
case upon a determination that indemnification of the present or former
director, officer, employee or agent is proper in the circumstances because
the
person has met the applicable standard of conduct set forth in subsections
(a)
and (b) of this section. Such determination shall be made, with respect to
a
person who is a director or officer at the time of such determination, (1)
by a
majority vote of the directors who are not parties to such action, suit or
proceeding, even though less than a quorum, or (2) by a committee of such
directors designated by majority vote of such directors, even though less than
a
quorum, or (3) if there are no such directors, or if such directors so direct,
by independent legal counsel in a written opinion, or (4) by the
stockholders.
“(e)
Expenses (including attorneys’ fees) incurred by an officer or director in
defending any civil, criminal, administrative or investigative action, suit
or
proceeding may be paid by the corporation in advance of the final disposition
of
such action, suit or proceeding upon receipt of an undertaking by or on behalf
of such director or officer to repay such amount if it shall ultimately be
determined that such person is not entitled to be indemnified by the corporation
as authorized in this section. Such expenses (including attorneys’ fees)
incurred by former directors and officers or other employees and agents may
be
so paid upon such terms and conditions, if any, as the corporation deems
appropriate.
“(f)
The
indemnification and advancement of expenses provided by, or granted pursuant
to,
the other subsections of this section shall not be deemed exclusive of any
other
rights to which those seeking indemnification or advancement of expenses may
be
entitled under any bylaw, agreement, vote of stockholders or disinterested
directors or otherwise, both as to action in such person’s official capacity and
as to action in another capacity while holding such office.
“(g)
A
corporation shall have power to purchase and maintain insurance on behalf of
any
person who is or was director, officer, employee or agent of the corporation,
or
is or was serving at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust
or
other enterprise against any liability asserted against such person and incurred
by such person in any such capacity, or arising out of such person’s status as
such, whether or not the corporation would have the power to indemnify such
person against such liability under this section.
“(h)
For
purposes of this section, references to (the corporation) shall include, in
addition to the resulting corporation, any constituent corporation (including
any constituent of a constituent) absorbed in a consolidation or merger which,
if its separate existence had continued, would have had power and authority
to
indemnify its directors, officers, and employees or agents, so that any person
who is or was a director, officer, employee or agent of such constituent
corporation, or is or was serving at the request of such constituent corporation
as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, shall stand in the same position
under
this section with respect to the resulting or surviving corporation as such
person would have with respect to such constituent corporation if its separate
existence had continued.
“(i)
For
purposes of this section, references to (other enterprises) shall include
employee benefit plans; references to “fines” shall include any excise taxes
assessed on a person with respect to any employee benefit plan; and references
to “serving at the request of the corporation” shall include any service as a
director, officer, employee or agent of the corporation which imposes duties
on,
or involves services by, such director, officer, employee or agent with respect
to an employee benefit plan, its participants or beneficiaries; and a person
who
acted in good faith and in a manner such person reasonably believed to be in
the
interest of the participants and beneficiaries of an employee benefit plan
shall
be deemed to have acted in a manner “not opposed to the best interests of the
corporation” as referred to in this section.
“(j)
The
indemnification and advancement of expenses provided by, or granted pursuant
to,
this section shall, unless otherwise provided when authorized or ratified,
continue as to a person who has ceased to be a director, officer, employee
or
agent and shall inure to the benefit of the heirs, executors and administrators
of such a person.
“(k)
The
Court of Chancery is hereby vested with exclusive jurisdiction to hear and
determine all actions for advancement of expenses or indemnification brought
under this section or under any bylaw, agreement, vote of stockholders or
disinterested directors, or otherwise. The Court of Chancery may summarily
determine a corporation’s obligation to advance expenses (including attorneys’
fees).”
To
the
extent that indemnification for liabilities arising under the Securities Act
may
be permitted to directors, officers or persons controlling the Company pursuant
to the foregoing provisions, the Company has been informed that, in the opinion
of the SEC, such indemnification is against public policy as expressed in the
Securities Act and is therefore unenforceable.
Item
7. Exemption from Registration Claimed.
Not
applicable.
Item
8. Exhibits.
|
Exhibit
Number
|
|
Description
|
|
5.1
|
|
Opinion
of Loeb & Loeb LLP*
|
|
10.1
|
|
2007
Equity Participation Plan of Organic To Go Food Corporation
(1)
|
|
23.1
|
|
Consent
of Loeb & Loeb LLP (included in Exhibit 5.1)*
|
|
23.2
|
|
Consent
of Rose, Snyder & Jacobs*
|
|
24.1
|
|
Power
of Attorney (included on the signature page to this Registration
Statement).
|
|
*
|
|
Filed
herewith.
|
|
(1)
|
|
Filed
as an exhibit to the Company’s Current Report on Form 8-K on May 21, 2007
and incorporated herein by
reference.
|
Item
9. Undertakings.
(a)
The
undersigned registrant hereby undertakes:
(1)
To
file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement to include any material
information with respect to the plan of distribution not previously disclosed
in
this Registration Statement or any material change to such information in this
Registration Statement.
(2)
That,
for the purpose of determining any liability under the Securities Act, each
such
post-effective amendment shall be deemed to be a new registration statement
relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3)
To
remove from registration by means of a post-effective amendment any of the
securities being registered which remain unsold at the termination of the
offering.
(b)
The
undersigned registrant hereby undertakes that, for purposes of determining
any
liability under the Securities Act, each filing of the registrant's annual
report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and,
where applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference
in this Registration Statement shall be deemed to be a new registration
statement relating to the securities offered herein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(c)
Insofar as indemnification for liabilities arising under the Securities Act
may
be permitted to directors, officers and controlling persons of the registrant
pursuant to the foregoing provisions, or otherwise, the registrant has been
advised that in the opinion of the 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 registrant in the successful defense of
any
action, suit or proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the registrant will,
unless in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification
by it is against public policy as expressed in the Securities Act and will
be
governed by the final adjudication of such issue.
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, the registrant certifies
that
it has reasonable grounds to believe that it meets all of the requirements
for
filing on Form S-8 and has duly caused this Registration Statement to be signed
on its behalf by the undersigned, thereunto duly authorized, in the City of
Los
Angeles, State of California, on May 21, 2007.
| |
|
|
| |
ORGANIC
TO GO FOOD CORPORATION
|
|
|
|
| |
By: |
/s/ Jason
Brown |
| |
Jason
Brown
|
| |
Chief
Executive Officer
|
POWER
OF ATTORNEY
Know
by
all persons by these presents,
that
each
person whose signature appears
below constitutes and appoints Jason Brown his true and lawful attorney-in-fact
and agent, with full power of substitution and resubstitution, for him or her
and in his or her name, place and stead, in any and all capacities, to sign
any
and all amendments (including post-effective amendments) to this Registration
Statement, and to file the same, with all exhibits thereto, and other documents
in connection therewith, with the SEC, 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 connection therewith, as fully to 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 his substitute, may
lawfully do or cause to be done by virtue hereof.
In
accordance with the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities and on
the
dates indicated.
|
Signature
|
|
Title
|
|
Date
|
| |
|
|
|
|
|
/s/
Jason Brown
|
|
Chief
Executive Officer and Chairman
|
|
May 21,
2007
|
|
Jason
Brown
|
|
(Principal
Executive Officer)
|
|
|
| |
|
|
|
|
|
/s/
Paul Campbell
|
|
Chief
Financial Officer
|
|
May 21,
2007
|
|
Paul
Campbell
|
|
(Principal
Accounting and Financial Officer)
|
|
|
| |
|
|
|
|
|
/s/
Dave Smith
|
|
Director
|
|
May 21,
2007
|
|
Dave
Smith
|
|
|
|
|
| |
|
|
|
|
|
/s/
Peter Meehan
|
|
Director
|
|
May 21,
2007
|
|
Peter
Meehan
|
|
|
|
|
| |
|
|
|
|
|
/s/
Roy Bingham
|
|
Director
|
|
May 21,
2007
|
|
Roy
Bingham
|
|
|
|
|
| |
|
|
|
|
|
/s/
Douglas Lioon
|
|
Director
|
|
May 21,
2007
|
|
Douglas
Lioon
|
|
|
|
|
| |
|
|
|
|
|
/s/
S.M. “Hass” Hassan
|
|
Director
|
|
May 21,
2007
|
|
S.M.
“Hass” Hassan
|
|
|
|
|
| |
|
|
|
|
INDEX
TO EXHIBITS
|
Exhibit
Number
|
|
Description
|
|
5.1
|
|
Opinion
of Loeb & Loeb LLP*
|
|
10.1
|
|
2007
Equity Participation Plan of Organic To Go Food Corporation
(1)
|
|
23.1
|
|
Consent
of Loeb & Loeb LLP (included in Exhibit 5.1)*
|
|
23.2
|
|
Consent
of Rose, Snyder & Jacobs*
|
|
24.1
|
|
Power
of Attorney (included on the signature page to this Registration
Statement).
|
|
*
|
|
Filed
herewith.
|
|
(1)
|
|
Filed
as an exhibit to the Company’s Current Report on Form 8-K on May 21,
2007 and incorporated herein by
reference.
|