8-K
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
FORM
8-K
CURRENT
REPORT
Pursuant
to Section 13 or 15(d) of the
Securities
Exchange Act of 1934
Date
of
report (Date of earliest event reported):
February 19, 2008
ORGANIC
TO GO FOOD CORPORATION
(Exact
name of registrant as specified in charter)
|
Delaware
|
|
0-21061
|
|
58-2044990
|
|
(State
or other jurisdiction of
incorporation)
|
|
(Commission
File Number)
|
|
(IRS
Employee Identification
No.)
|
3317
Third Avenue South
Seattle,
Washington 98134
(Address
of Principal Executive Offices) (Zip Code)
(206)
838-4670
(Registrant’s
Telephone Number)
Check
the
appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligation of the registrant under any of the following
provisions (see General Instruction A.2. below):
o Written
communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
o Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
o Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
o Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
Item
1.01 Entry into a Material Definitive Agreement
Securities
Purchase Agreement
On
February 19, 2008, Organic To Go Food Corporation (the “Company”) entered into a
Securities Purchase Agreement (the “Securities Purchase Agreement”) with
W.Health L.P. (the “Investor”), relating to the sale (the “Private Placement”)
of (i) common stock, par value $.001, (the “Common Stock”) of the Company (the
“Shares”), (ii) an unconditional warrant to purchase Common Stock (the
“Unconditional Warrant”) and (iii) a conditional warrant to purchase Common
Stock (the “Conditional Warrant” and, together with the Unconditional Warrant,
collectively, the “Warrants”). Pursuant to the terms of the Securities Purchase
Agreement, the Company will sell and issue to the Investor 7,142,857 shares
of
Common Stock at a price of $1.40 per share, for a total purchase price of $10.0
million.
Unconditional
Warrant
The
Unconditional Warrant provides the Investor the right to purchase 4,285,715
shares of Common Stock at an exercise price of $2.50 per share, subject to
adjustment under certain circumstances. The Unconditional Warrant will be
exercisable at any time on or after the closing for a period of five years
and
may be exercised on a cashless basis.
Conditional
Warrant
The
Conditional Warrant will be exercisable only upon the occurrence of certain
corporate objectives, including (i) the Company’s failure to become listed on
The NASDAQ Stock Market or the American Stock Market within three years after
the original issue date of the Conditional Warrant, (ii) the Company’s failure
to maintain listing on The NASDAQ Stock Market or the American Stock Market
for
certain specified time periods or (iii) if the Company is acquired by or merged
with another unaffiliated entity for consideration to the Company of an amount
equal to or less than $2.50 per share before the fifth anniversary of the
closing (each, an “Exercise Event”). Upon the occurrence of an Exercise Event,
the Investor will have the right to purchase such number of shares of Common
Stock, calculated as of the initial date of exercise, equal to twenty percent
(20%) of the total number of shares of capital stock of Company on a fully
diluted basis, taking into account such issuance, using the treasury method,
at
an exercise price of $0.001 per share, subject to adjustment under certain
circumstances. The Conditional Warrant will expire upon the occurrence of
certain specific events, but in any event, no later than five years after the
original issue date. The Conditional Warrant may be exercised on a cashless
basis.
Registration
Rights Agreements
The
Company expects to file the Registration Statement by the Filing Date however
in
connection with the Private Placement, upon closing the Company will enter
into
a Registration Rights Agreement with the Investor (the “Registration Rights
Agreement”), requiring the Company to file with the Securities and Exchange
Commission (the “SEC”) an initial registration statement (the “Registration
Statement”) covering the resale of the Shares and the Common Stock issuable upon
exercise of the Unconditional Warrant (the “Unconditional Warrant Shares”)
within ninety (90) days following the closing of the Private Placement (the
“Filing Date”). In addition, the Company is required to use its best efforts to
cause the Registration Statement to be declared effective by the SEC as soon
as
possible after the Filing Date.
In
addition, upon closing the Company will enter into a Deferred Registration
Rights Agreement with the Investor (the “Deferred Registration Rights
Agreement”), requiring the Company to file with the SEC an initial registration
statement (the “ Deferred Registration Statement”) covering the resale of the
Common Stock issuable upon exercise of the Conditional Warrant (the “Conditional
Warrant Shares”) within forty-five (45) days following the date of exercise of
the Conditional Warrant (the “Deferred Filing Date”). In addition, the Company
is required to use its best efforts to cause the Deferred Registration Statement
to be declared effective by the SEC as soon as possible after the Deferred
Filing Date.
If
the
Company fails to file the Registration Statement with the SEC by the Filing
Date
or the Deferred Registration Statement with the SEC by the Deferred Filing
Date
(each such date of failure being referred to as an “Event Date”), then the
Company will be required to pay liquidated damages to the Investor with 6%
of the investment amount being payable on the Event Date and an
additional 1% of the investment amount being payable on each monthly
anniversary of the Event Date until such failure is cured of up to 15% of the
investment amount paid by the Investor. The Company will not be liable for
damages under the Registration Rights Agreement with respect to any
Unconditional Warrant Shares or Conditional Warrant Shares.
The
descriptions of the Securities Purchase Agreement, the Warrants, the
Registration Rights Agreement and the Deferred Registration Rights Agreement
above do not purport to be complete and are qualified in their entirety by
reference to the complete text of the Securities Purchase Agreement, the form
of
Unconditional Warrant, the form of Conditional Warrant, the Registration Rights
Agreement and the Deferred Registration Rights Agreement, copies of which are
filed as Exhibits to this Current Report on Form 8-K and are incorporated herein
by reference.
On
February 19, 2008, the Company issued a press release announcing the Private
Placement, a copy of which is attached hereto as Exhibit
99.1 and incorporated herein by reference.
Item
9.01 Financial Statements and Exhibits
(d)
Exhibits
|
|
|
Securities
Purchase Agreement
|
| |
|
|
|
|
|
Registration
Rights Agreement
|
| |
|
|
|
|
|
Deferred
Registration Rights Agreement
|
| |
|
|
|
|
|
Form
of Unconditional Warrant
|
| |
|
|
|
|
|
Form
of Conditional Warrant
|
| |
|
|
|
|
|
Press
Release, dated February 19, 2008
|
SIGNATURES
Pursuant
to the requirements of the Securities Exchange Act of 1934, the registrant
has
duly caused this report to be signed on its behalf by the undersigned hereunto
duly authorized.
| |
|
|
| |
ORGANIC
TO GO FOOD CORPORATION
|
|
|
|
|
Date:
February 25, 2008
|
By: |
/s/
Jason Brown
|
| |
Jason
Brown
|
| |
Chief
Executive Officer
|
EXHIBIT
INDEX
|
|
|
Securities
Purchase Agreement
|
| |
|
|
|
|
|
Registration
Rights Agreement
|
| |
|
|
|
|
|
Deferred
Registration Rights Agreement
|
| |
|
|
|
|
|
Form
of Unconditional Warrant
|
| |
|
|
|
|
|
Form
of Conditional Warrant
|
| |
|
|
|
|
|
Press
Release, dated February 19, 2008
|