Unassociated Document
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,
2009
ORGANIC
TO GO FOOD CORPORATION
(Exact
name of registrant as specified in charter)
Delaware
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0-21061
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58-2044990
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(State
or other jurisdiction of
incorporation)
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(Commission
File Number)
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(IRS
Employee Identification
No.)
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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
On
February 19, 2009, Organic To Go Food Corporation (the “Company”) closed the
transactions contemplated by that certain Note Purchase Agreement, dated
February 11, 2009 (“Note Purchase Agreement”), by and between the Company and
W.Health L.P., a limited partnership organized under the laws of the
Bahamas (the “Investor”), pursuant to which, among other things, the
Company sold a $5.0 million secured convertible promissory note (the “Note”) to
the Investor (the “Debt Financing”). A summary of the material terms of the Debt
Financing was previously disclosed in a Current Report on Form 8-K filed by the
Company on February 11, 2009, which is incorporated herein by
reference.
Immediately
prior to the closing of the Debt Financing, the Company had 36,928,543 shares of
common stock, par value $0.001 (“Common Stock”), outstanding, of which,
7,142,857 shares, or 19.3%, were owned by the Investor. Immediately following
the closing of the Debt Financing, the Company had 169,581,604 shares of Common
Stock outstanding, of which 139,795,918 shares, or approximately 82.4%, were
owned by the Investor.
On
February 19, 2009, the Company issued a press release announcing the closing of
the Debt Financing, a copy of which is attached hereto as Exhibit 99.1 and
incorporated herein by reference.
Item
2.03
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Creation
of a direct financial obligation or an obligation under an off-balance
sheet arrangement
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The
information contained in Item 1.01 is incorporated herein by
reference.
Item
2.04
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Triggering
Events That Accelerate or Increase a Direct Financial Obligation or an
Obligation under an Off-Balance Sheet
Arrangement
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The
information contained in Item 1.01 is incorporated herein by
reference.
Item
3.02
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Unregistered
Sales of Equity Securities.
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The
information contained in Item 1.01 is incorporated herein by
reference.
Item
5.01
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Change
in Control of Registrant
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The
information contained in Item 1.01 is incorporated herein by
reference.
Item
5.02
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Departure
of Directors or Certain Officers; Election of Directors; Appointment of
Certain Officers; Compensatory Arrangements of Certain
Officers
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Change in Board of
Directors
Pursuant
to the terms of the Note Purchase Agreement, effective as of February 19, 2009,
Dave Smith, Roy Bingham, Peter Meehan and Douglas Lioon resigned from the Board
of Directors of the Company and Dr. Wolfgang Reichenberger was appointed as a
member of the Board of Directors. In addition, Dr. Bogdan von Rueckmann was
appointed as a member of the Board of Directors to be effective not less than
ten (10) days after the mailing of a Schedule 14F-1 to the stockholders of the
Company. Dr. Reichenberger is a Director of Inventages Whealth Management, Inc.,
the general partner of the Investor. Dr. Bogdan von Rueckmann is a
partner of Inventages Whealth Management, Inc. There were no disagreements
between Messrs. Smith, Bingham, Meehan or Lioon and the Company on any matter
relating to the Company’s operations, policies or practices. A copy
of the resignation letters of Messrs. Smith, Bingham, Meehan and Lioon are
attached to this Current Report as Exhibits 99.2, 99.3, 99.4 and 99.5,
respectively, and are incorporated herein by reference.
Immediately
prior to the closing of the Debt Financing, Douglas Lioon was a member of the
Company’s Audit Committee and Compensation Committee and Roy Bingham was a
member of the Company’s Audit Committee. Pursuant to the Note Purchase
Agreement, promptly following the closing of the Debt Financing, the Audit
Committee will be reconstituted to include a majority of the directors nominated
by the Investor and will not include the Chief Executive Officer of the Company.
The Company anticipates that Dr. Reichenberger will be appointed as one of the
members of the Audit Committee. The Company also anticipates that the
Compensation Committee will be reconstituted promptly following the closing of
the Debt Financing.
Employment Agreement with
Chief Executive Officer
In
connection with the closing of the Debt Financing, the Company entered into a
new employment agreement with Jason Brown, the Company’s Chairman, President and
Chief Executive Officer. The term of the employment agreement extends through
February 19, 2012 and is subject to automatic annual renewals unless earlier
terminated by either party.
Pursuant
to the employment agreement, Mr. Brown is entitled to receive a base salary of
$250,000 per year and a cash incentive bonus of 35% of base compensation per
year if certain goals are met.
Promptly
following the closing of the Debt Financing, the Company will issue Mr. Brown
options to purchase 7,990,756 shares of Common Stock at $0.14 per share. The
Company will issue Mr. Brown additional options to purchase 1,682,872 shares of
Common Stock if certain conditions are met.
In the
event that Mr. Brown’s employment is terminated by the Company due to Mr.
Brown’s permanent disability or for any other reason other than for cause, or if
Mr. Brown terminates his employment with the Company for good reason, the
Company will provide Mr. Brown with certain severance benefits,
including a lump sum payment equal to Mr. Brown’s annual base
compensation.
The above
description of Mr. Brown’s employment agreement does not purport to be complete
and is qualified in its entirety by reference to the full text of the agreement,
which is attached to this Current Report as Exhibit 10.1 and is incorporated
herein by reference.
Item
5.03
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Amendments
to Articles of Incorporation or Bylaws; Change in Fiscal
Year.
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Effective
upon the closing of the Debt Financing, the Board of Directors amended the
Company’s amended and restated bylaws to modify the quorum requirement for
meetings of the Board of Directors (the “Amendment”). Prior to the Amendment, a
majority of the authorized directors constituted a quorum for all meetings of
the Board of Directors. The Amendment provides that at least 2 directors
nominated by the Investor must attend a meeting at which a majority of the
authorized directors are present in order to constitute a quorum.
The above
description of the Amendment does not purport to be complete and is qualified in
its entirety by reference to the full text of the Amendment, which is attached
to this Current Report as Exhibit 3.2 and is incorporated herein by
reference.
Item
9.01
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Financial
Statements and Exhibits
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Exhibit
No.
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Description
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3.2
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Amendment
to Bylaws
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10.1
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Employment
Agreement
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99.1
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Press
Release
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99.2
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Resignation
Letter of Dave Smith
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99.3
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Resignation
Letter of Roy Bingham
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99.4
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Resignation
Letter of Peter Meehan
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99.5
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Resignation
Letter of Douglas Lioon
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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.
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ORGANIC
TO GO FOOD CORPORATION
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Date:
February 20, 2009
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By:
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/s/
Michael Gats
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Michael
Gats
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Chief
Financial Officer
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EXHIBIT
INDEX
Exhibit
No.
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Description
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3.2
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Amendment
to Bylaws
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10.1
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Employment
Agreement
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99.1
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Press
Release
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99.2
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Resignation
Letter of Dave Smith
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99.3
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Resignation
Letter of Roy Bingham
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99.4
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Resignation
Letter of Peter Meehan
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99.5
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Resignation
Letter of Douglas Lioon
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