Delaware
(State
or other jurisdiction of
incorporation
or organization)
|
|
5812
(Primary
Standard Industrial
Classification
Code Number)
|
|
58-2044900
(IRS
Employee
Identification
No.)
|
Large
accelerated filer o
|
Accelerated
filer
o
|
Non-accelerated
filer o
|
Smaller
reporting company x
|
|
·
|
3,250,000
shares of common stock; and
|
|
·
|
1,321,000
shares of common stock issuable upon exercise of outstanding
warrants.
|
CAUTIONARY
NOTICE REGARDING FORWARD-LOOKING STATEMENTS
|
1
|
|
PROSPECTUS
SUMMARY
|
2
|
|
SUMMARY
FINANCIAL INFORMATION
|
4
|
|
RISK
FACTORS
|
5
|
|
USE
OF PROCEEDS
|
12
|
|
DETERMINATION
OF OFFERING PRICE
|
12
|
|
DESCRIPTION
OF BUSINESS
|
13
|
|
LEGAL
PROCEEDINGS
|
17
|
|
DESCRIPTION
OF PROPERTY
|
17
|
|
MANAGEMENT'S
DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF
OPERATIONS
|
18
|
|
DIRECTORS
AND EXECUTIVE OFFICERS
|
23
|
|
SECURITY
OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND
MANAGEMENT
|
26
|
|
CERTAIN
RELATIONSHIPS AND RELATED TRANSACTIONS
|
27
|
|
EXECUTIVE
COMPENSATION
|
28
|
|
SELLING
STOCKHOLDERS
|
33
|
|
PLAN
OF DISTRIBUTION
|
37
|
|
DESCRIPTION
OF SECURITIES
|
40
|
|
MARKET
FOR COMMON EQUITY AND RELATED STOCKHOLDER MATTERS
|
41
|
|
CHANGES
IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND FINANCIAL
DISCLOSURE
|
43
|
|
LEGAL
MATTERS
|
43
|
|
EXPERTS
|
43
|
|
WHERE
YOU CAN FIND MORE INFORMATION
|
43
|
|
FINANCIAL
STATEMENTS
|
F-1
|
|
·
|
3,250,000
shares of common stock issued to a select group of accredited investors;
and
|
|
·
|
1,321,000
shares of common stock underlying warrants issued to investors and
a
placement agent in connection with the private
placement.
|
Capital
stock currently outstanding:
|
|
As
of March 31, 2008, we had outstanding 36,329,755 shares of common
stock
and options and warrants to purchase a total of 17,301,546 shares of
common stock.
|
Common
stock offered by Organic To Go Food Corporation:
|
|
None
|
|
|
|
Common
stock offered by selling stockholders:
|
|
Up
to 4,571,000 shares of our common stock, which consists
of:
|
|
|
·
|
3,250,000
shares of common stock; and
|
|
|
·
|
1,321,000
shares of common stock issuable upon exercise of outstanding
warrants.
|
Use
of proceeds:
|
|
We
will not receive any of the proceeds from the sale of shares of common
stock by the selling stockholders. We may, however, receive proceeds
in
the event some or all of the warrants held by the selling stockholders
are
exercised.
|
|
|
|
OTC
Bulletin Board Symbol:
|
|
OTGO.OB
|
|
|
|
Risk
Factors:
|
|
As
investment in our common stock involves significant risks. See “Risk
Factors” beginning on page 5.
|
Statement
of Operations Data:
(in
thousands except for per share
|
Year Ended December 31,
|
||||||
amounts)
|
2006
|
2007
|
|||||
|
|||||||
Sales
|
$
|
9,663
|
$
|
15,902
|
|||
Cost
of sales
|
$
|
4,876
|
$
|
7,361
|
|||
Operating
Expenses
|
$
|
10,483
|
$
|
16,075
|
|||
Net
Loss
|
$
|
(7,966
|
)
|
$
|
(12,145
|
)
|
|
Net
Loss Per Share - Basic and Diluted
|
$
|
(2.78
|
)
|
$
|
(0.57
|
)
|
|
Weighted
Average Shares Outstanding
|
2,868
|
21,136
|
Balance
Sheet Data:
|
At December 31,
|
||||||
(in
thousands)
|
2006
|
2007
|
|||||
|
|||||||
Cash
and Cash Equivalents
|
$
|
865
|
$
|
668
|
|||
Total
Current Assets
|
$
|
1,655
|
$
|
3,101
|
|||
Total
Assets
|
$
|
5,277
|
$
|
12,940
|
|||
Total
Current Liabilities
|
$
|
8,549
|
$
|
4,757
|
|||
Total
Liabilities
|
$
|
9,278
|
$
|
6,293
|
|||
Stockholders’
Equity (Deficit)
|
$
|
(4,001
|
)
|
$
|
6,647
|
|
·
|
hiring,
training and retention of qualified operating
personnel;
|
·
|
identification
and successful negotiation for the purchase of suitable acquisition
targets;
|
|
·
|
identification
and availability of suitable
properties;
|
|
·
|
negotiation
of favorable lease terms;
|
|
·
|
timely
development of new Retail Café, Delivery/Casual Catering Services and
Wholesale operations;
|
·
|
the
successful integration of the operations of acquired
companies;
|
|
|
·
|
management
of construction and development costs of Retail Café, Delivery/Casual
Catering Services and Wholesale
operations;
|
|
·
|
competition
in our markets; and
|
|
·
|
general
economic conditions.
|
|
·
|
the
announcement of new products or services by us or our
competitors;
|
|
·
|
quarterly
variations in our and our competitors’ results of
operations;
|
|
·
|
changes
in earnings estimates or recommendations by securities
analysts;
|
|
·
|
developments
in our industry; and
|
|
·
|
general
market conditions and other factors, including factors unrelated
to our
own operating performance or the condition or prospects of our
industry.
|
Name
|
|
Age
|
|
Position
|
Jason
Brown
|
|
50
|
|
Chief
Executive Officer and Chairman
|
Michael
Gats
|
49
|
Chief
Financial Officer
|
||
Andrew
Jacobs
|
|
50
|
|
Senior
Vice President of Operations
|
Dave
Smith
|
|
64
|
|
Director
|
Peter
Meehan
|
|
50
|
|
Director
|
Roy
Bingham
|
|
44
|
|
Director
|
Douglas
Lioon
|
|
50
|
|
Director
|
S.M.
“Hass” Hassan
|
|
58
|
|
Director
|
Gunnar
Weikert
|
44
|
Director
|
Name
of Beneficial Owner (1)
|
Amount and
Nature of
Beneficial
Ownership of
common
stock (2)
|
Percent of Class
of Common
Stock
|
|||||
Officers and
Directors:
|
|
|
|||||
Jason
Brown (3)
|
2,669,122
|
7.2
|
%
|
||||
Michael
Gats (4)
|
39,375
|
*
|
|||||
Andrew
Jacobs (5)
|
143,245
|
*
|
|||||
Dave
Smith (6)
|
124,687
|
*
|
|||||
Peter
Meehan (7)
|
100,403
|
*
|
|||||
Roy
Bingham (8)
|
226,153
|
*
|
|||||
Douglas
Lioon (9)
|
570,990
|
1.5
|
%
|
||||
S.M.
“Hass” Hassan (10)
|
142,967
|
*
|
|||||
Gunnar
Weikert (11)
|
10,416
|
*
|
|||||
All
directors and executive officers as a group (9 persons)
(12)
|
4,127,413
|
11.0
|
%
|
||||
More
than 5% Beneficial Owners:
|
|||||||
W.Health
L.P. (13)
|
11,428,572
|
28.13
|
%
|
||||
Adam
Usdan (14)
|
3,039,473
|
8.2
|
%
|
||||
Trellus
Management Company, LLC (14)
|
3,039,473
|
8.2
|
%
|
*
|
Less
than 1%
|
(1)
|
Unless
otherwise indicated, the address of the beneficial owner is c/o Organic
To
Go Food Corporation, 3317 Third Avenue South, Seattle, Washington
98134.
|
(2)
|
Beneficial
ownership is determined in accordance with the rules of the SEC and
generally includes voting or investment power with respect to securities.
Shares of common stock which are purchasable under options or warrants
which are currently exercisable, or which will become purchasable
or
exercisable no later than 60 days after March 31, 2008, are deemed
outstanding for computing the percentage of the person holding such
options or warrants, but not deemed outstanding for computing the
percentage of any other person. Except as indicated by footnote and
subject to community property laws where applicable, the persons
named in
the table have sole voting and investment power with respect to all
shares
of common stock shown as beneficially owned by them.
|
(3)
|
Mr.
Brown’s holdings consist of 2,183,161 shares of common stock, options to
purchase 474,093 shares of common stock and warrants to purchase
11,868
shares of common stock.
|
Mr.
Gats’ holdings consist of 39,375 shares of restricted
stock.
|
|
(5)
|
Mr.
Jacobs’ holdings consist of options to purchase 143,245 shares of common
stock.
|
(6)
|
Mr.
Smith’s holdings consist of 58,255 shares of common stock, options to
purchase 66,283 shares of common stock and warrants to purchase 149
shares
of common stock.
|
(7)
|
Mr.
Meehan’s holdings consist of 41,868 shares of common stock and options to
purchase 58,535 shares of common stock.
|
(8)
|
Mr.
Bingham’s holdings consist of 167,380 shares of common stock, options to
purchase 58,535 shares of common stock and warrants to purchase 238
shares
of common stock.
|
(9)
|
Mr.
Lioon’s holdings consist of 500,587 shares of common stock, options to
purchase 58,535 shares of common stock and warrants to purchase 11,868
shares of common stock.
|
(10)
|
Mr.
Hassan’s holdings consist of 66,000 shares of common stock, options to
purchase 48,067 shares of common stock and warrants to purchase 28,900
shares of common stock.
|
(11)
|
Dr.
Weikert’s holdings consist of options to purchase 10,416 shares of common
stock.
|
(12)
|
Consists of
3,056,626 shares of common stock, 39,375 shares of restricted stock,
options to purchase 1,017,764 shares of common stock and warrants
to
purchase 53,023 shares of common stock.
|
(13)
|
Consists
of 7,142,857 shares of common stock and warrants to purchase 4,285,715
shares of common stock. The address of the beneficial owner is c/o
Inventages Whealth Management Inc., Winterbotham Place, Marlborough
&
Queen Streets, P. O. Box N-3026, Nassau, The Bahamas.
|
(14)
|
Consists
of 2,239,473 shares of common stock and warrants to purchase 800,000
shares of common stock. Adam Usdan and Trellus Management Company
LLC
share voting and investment control over the shares. The address
of each
beneficial owner is 350 Madison Avenue, 9 Floor, New York, New York
10017.
The Company is reporting this stock ownership based upon a Schedule
13G
filed with the SEC.
|
Name
and principal
position
(a)
|
Year
(b)
|
Salary
($)
(c)
|
Bonus
($)
(d)
|
Stock
Awards
($)
(e)
|
Option
Awards
($)
(f) (4)
|
All Other
Compensation ($)
(i)
|
Total ($)
(j)
|
|||||||||||||||
Jason
Brown, Chief Executive
|
2007
|
224,998
|
—
|
—
|
658,732
|
(5)
|
5,000
|
(6)
|
888,730
|
|||||||||||||
Officer
and Chairman (2)
|
2006
|
156,924
|
—
|
—
|
3,600
|
(7)
|
5,000
|
(8)
|
165,524
|
|||||||||||||
Mark
Schaftlein, Former Chief Executive
|
2007
|
—
|
—
|
—
|
—
|
—
|
—
|
|||||||||||||||
Officer
(3)
|
2006
|
—
|
—
|
—
|
—
|
—
|
—
|
|||||||||||||||
Andrew
Jacobs, Senior Vice President of Operations (9)
|
2007
|
131,538
|
—
|
—
|
514,500
|
(10)
|
—
|
646,038
|
OUTSTANDING
EQUITY AWARDS AT FISCAL YEAR-END (1)
|
||||||||||||||||
OPTION
AWARDS
|
Name
(a)
|
Number of
Securities
Underlying
Unexercised
Options
(#)
Exercisable
(b)
|
Number of
Securities
Underlying
Unexercised
Options
(#)
Unexercisable
(c)
|
Equity
Incentive
Plan
Awards:
Number of
Securities
Underlying
Unexercised
Unearned
Options
(#)
(d)
|
Option
Exercise
Price
($)
(e)
|
Option
Expiration
Date
(f)
|
|||||||||||
Jason
Brown
|
38,380
|
(2)
|
3,489
|
(2)
|
-0-
|
$
|
0.17
|
2-29-16
|
||||||||
|
-
|
1,246,674
|
(3)
|
-0-
|
$
|
1.38
|
2-11-16
|
|||||||||
Mark
Schaftlein
|
-
|
-
|
-
|
-
|
-
|
|||||||||||
Andrew
Jacobs
|
-
|
461,601
|
(4)
|
-0-
|
$
|
2.23
|
5-15-17
|
Name
(a) (2)
|
Fees Earned or
Paid in Cash
($)
(b)
|
Option Awards
($)
(d) (3)
|
All
Other
Compensation
($)
(g)
|
Total ($)
(j)
|
|||||||||
Dave Smith
|
$
|
5,000
|
$
|
-
|
36,000
|
(4) |
$
|
41,000
|
|||||
Peter
Meehan
|
$
|
5,000
|
$
|
-
|
-
|
$
|
5,000
|
||||||
Roy
Bingham
|
$
|
5,000
|
$
|
-
|
-
|
$
|
5,000
|
||||||
Douglas
Lioon
|
$
|
5,000
|
$
|
-
|
-
|
$
|
5,000
|
||||||
S.M.
“Hass” Hassan
|
$
|
5,000
|
$
|
22,000 | (5) |
|
-
|
$
|
27,000
|
|
·
|
25%
is based on Mr. Brown achieving certain performance goals mutually
agreed
upon by him and the Board of Directors each
year;
|
|
·
|
25%
is determined at the discretion of the Board of Directors;
and
|
|
·
|
50%
is based on achievement of performance goals by the Company, which
will be
mutually agreed upon by Mr. Brown and the Board of Directors each
year.
|
|
·
|
competing
with us during his employment and for a period of 3 years after
termination of his employment;
|
|
·
|
soliciting
any person employed by us, any of our sales representatives or consultants
or any of our customers or suppliers during his employment and for
a
period of 3 years after termination of his employment; and
|
|
·
|
using
our confidential business information at any time, except in connection
with the performance of his duties for the Company.
|
|
·
|
25%
is based on Mr. Jacobs achieving certain performance goals mutually
agreed
upon by him and our Chief Executive Officer each
year;
|
|
·
|
25%
is determined at the discretion of our Chief Executive Officer;
and
|
|
·
|
50%
is based on achievement of performance goals by the Company, which
will be
mutually agreed upon by Mr. Jacobs and our Chief Executive Officer,
at the
beginning of each year.
|
·
|
competing
with us during his employment and for a period 12 months after termination
of his employment, subject to certain
exceptions;
|
·
|
soliciting
any person employed by us, any of our sales representatives or
consultants, or any of our clients, customers or suppliers during
his
employment and for a period of 9 to 12 months after termination of
his
employment; and
|
·
|
using
our confidential business information at any time, except in connection
with the performance of his duties.
|
Name
of Selling
Stockholder |
Number of
Shares of Common Stock Beneficially Owned Prior to Offering (1) |
Maximum
Number of Shares of Common Stock to be Offered |
Number of
Shares of Common Stock Beneficially Owned After Offering (1) |
Percentage
Ownership After Offering (%) (2) |
|||||||||
Clyde
Berg (3)
|
865,059
|
175,000
|
690,059
|
1.9
|
|||||||||
Heller
Capital Investments (4)
|
582,671
|
350,000
|
232,671
|
*
|
|||||||||
Irvine
Capital Partners III, L.P. (5)
|
175,000
|
175,000
|
0
|
0
|
|||||||||
Meadowbrook
Opportunity Fund LLC (6)
|
240,000
|
140,000
|
100,000
|
*
|
|||||||||
Roth
Capital Partners, LLC (7)
|
21,133
|
21,000
|
133
|
*
|
|||||||||
Sandor
Capital Master Fund, L.P. (8)
|
245,000
|
245,000
|
0
|
0
|
|||||||||
Spinner
Investments, LLC (9)
|
140,000
|
140,000
|
0
|
0
|
|||||||||
Stiassni
Capital Partners, L.P. (10)
|
675,000
|
525,000
|
150,000
|
*
|
|||||||||
Trellus
Offshore Fund Ltd (11)
|
1,217,300
|
(12)
|
1,217,300
|
0
|
0
|
||||||||
Trellus
Partners LP (13)
|
847,840
|
(14)
|
847,840
|
0
|
0
|
||||||||
Trellus
Partners II LP (15)
|
34,860
|
(16)
|
34,860
|
0
|
0
|
||||||||
Trellus
Small Cap Opportunity Fund LP (17)
|
436,240
|
(18)
|
436,240
|
0
|
0
|
||||||||
263,760
|
(20)
|
263,760
|
0
|
0
|
Less
than 1%
|
(1)
|
Beneficial
ownership is determined in accordance with the rules of the SEC and
generally includes voting or investment power with respect to securities.
Shares of common stock which are purchasable under options or warrants
which are currently exercisable, or which will become exercisable
no later
than 60 days after March 31, 2008, are deemed outstanding for the
purposes
of computing the percentage of the person holding such options or
warrants, but not deemed outstanding for the purposes of computing
the
percentage of any other person. Except as indicated by footnote and
subject to community property laws where applicable, the persons
named in
the table have sole voting and investment power with respect to all
shares
of common stock shown as beneficially owned by them.
|
|
(2)
|
Based
on 36,329,755 shares of common stock outstanding as of March 31, 2008
and assumes that (i) all of the shares offered hereby are sold; (ii)
all
of the shares owned before the offering, but not offered hereby,
are not
sold; and (iii) none of our outstanding convertible securities, other
than
the warrants relating to the common stock covered by this prospectus,
are
converted into shares of common stock.
|
|
(3)
|
The
selling stockholder is offering 125,000 shares of common stock and
50,000
shares of common stock underlying warrants received as an investor
in the private placement. The selling stockholder purchased the
securities in the ordinary course of business and at the time of
the
purchase of the securities being registered for sale pursuant to the
registration statement, of which this prospectus is a part, the selling
stockholder had no arrangements or understandings, directly or indirectly,
with any person to distribute the
securities.
|
(4)
|
The
selling stockholder is offering 250,000 shares of common stock and
100,000
shares of common stock underlying warrants received as an investor
in the private placement. Ronald I. Heller, the chief investment
officer of Heller Capital Investments, has voting and investment
control
over the shares. The selling stockholder purchased the securities
in the
ordinary course of business and at the time of the purchase of the
securities being registered for sale pursuant to the registration
statement, of which this prospectus is a part, the selling stockholder
had
no arrangements or understandings, directly or indirectly, with any
person
to distribute the securities.
|
|
|
(5)
|
The
selling stockholder is offering 125,000 shares of common stock and
50,000
shares of common stock underlying warrants received as an investor
in the private placement. David M. Bunzel, the general partner of
Irvine Capital Partners III, L.P., has voting and investment control
over
the shares. The selling stockholder purchased the securities in the
ordinary course of business and at the time of the purchase of the
securities being registered for sale pursuant to the registration
statement, of which this prospectus is a part, the selling stockholder
had
no arrangements or understandings, directly or indirectly, with any
person
to distribute the securities.
|
|
|
(6)
|
The
selling stockholder is offering 100,000 shares of common stock and
40,000
shares of common stock underlying warrants received as an investor
in the private placement. Michael Ragins, the manager of Meadowbrook
Opportunity Fund LLC, has voting and investment control over the
shares.
The selling stockholder purchased the securities in the ordinary
course of
business and at the time of the purchase of the securities being
registered for sale pursuant to the registration statement, of which
this
prospectus is a part, the selling stockholder had no arrangements
or
understandings, directly or indirectly, with any person to distribute
the
securities.
|
|
|
(7)
|
The
selling stockholder is offering 21,000 shares of common stock underlying
warrants received as compensation for services as the placement agent
in
the private placement. Byron Roth, the Chief Executive Officer of
Roth
Capital Partners, LLC and Gordon Roth, the Chief Financial Officer
of Roth
Capital Partners, LLC, share voting and investment control over the
shares. The selling stockholder is a member firm of the NASD. The
selling
stockholder has no arrangement under which the selling stockholder
may
purchase additional securities in connection with the offering. At
the
time of the acquisition of the securities, the selling stockholder
had no
understanding, directly or indirectly, with any person to distribute
securities being offered hereunder.
|
(8)
|
The
selling stockholder is offering 175,000 shares of common stock and
70,000
shares of common stock underlying warrants received as an investor
in the private placement. John S. Lemak, the manager of Sandor
Capital Master Fund, L.P., has voting and investment control over
the
shares. The selling stockholder purchased the securities in the ordinary
course of business and at the time of the purchase of the securities
being
registered for sale pursuant to the registration statement, of which
this
prospectus is a part, the selling stockholder had no arrangements
or
understandings, directly or indirectly, with any person to distribute
the
securities.
|
|
|
(9)
|
The
selling stockholder is offering 100,000 shares of common stock and
40,000
shares of common stock underlying warrants received as an investor
in the private placement. Peter Spinner and Allan Spinner share
voting and investment control over the shares. The selling stockholder
purchased the securities in the ordinary course of business and at
the
time of the purchase of the securities being registered for sale
pursuant
to the registration statement, of which this prospectus is a part,
the
selling stockholder had no arrangements or understandings, directly
or
indirectly, with any person to distribute the
securities.
|
|
|
(10)
|
The
selling stockholder is offering 375,000 shares of common stock and
150,000
shares of common stock underlying warrants received as an investor
in the private placement. Nicholas C. Stiassni, the president and
manager of Stiassni Capital, LLC, which is the general partner of
Stiassni
Capital Partners, L.P., has voting and investment control over the
shares.
The selling stockholder purchased the securities in the ordinary
course of
business and at the time of the purchase of the securities being
registered for sale pursuant to the registration statement, of which
this
prospectus is a part, the selling stockholder had no arrangements
or
understandings, directly or indirectly, with any person to distribute
the
securities.
|
|
|
(11)
|
The
selling stockholder is offering 869,500 shares of common stock and
347,800
shares of common stock underlying warrants received as an investor
in the private placement. Adam Usdan, the president of Trellus
Offshore Fund Ltd, has voting and investment control over the shares.
The
selling stockholder purchased the securities in the ordinary course
of
business and at the time of the purchase of the securities being
registered for sale pursuant to the registration statement, of which
this
prospectus is a part, the selling stockholder had no arrangements
or
understandings, directly or indirectly, with any person to distribute
the
securities.
|
(12)
|
Excludes
shares of common stock and shares of common stock underlying warrants
held
by Trellus Partners LP, Trellus Partners II LP, Trellus Small Cap
Opportunity Fund LP and Trellus Small Cap Opportunity Offshore Fund
Ltd.
|
|
|
(13)
|
The
selling stockholder is offering 605,600 shares of common stock and
242,240
shares of common stock underlying warrants received as an investor
in the private placement. Adam Usdan, the president of Trellus
Partners LP, has voting and investment control over the shares. The
selling stockholder purchased the securities in the ordinary course
of
business and at the time of the purchase of the securities being
registered for sale pursuant to the registration statement, of which
this
prospectus is a part, the selling stockholder had no arrangements
or
understandings, directly or indirectly, with any person to distribute
the
securities.
|
|
|
(14)
|
Excludes
shares of common stock and shares of common stock underlying warrants
held
by Trellus Offshore Fund Ltd, Trellus Partners II LP, Trellus Small
Cap
Opportunity Fund LP and Trellus Small Cap Opportunity Offshore Fund
Ltd.
|
|
|
(15)
|
The
selling stockholder is offering 24,900 shares of common stock and
9,960
shares of common stock underlying warrants received as an investor
in the private placement. Adam Usdan, the president of Trellus
Partners II LP, has voting and investment control over the shares.
The
selling stockholder purchased the securities in the ordinary course
of
business and at the time of the purchase of the securities being
registered for sale pursuant to the registration statement, of which
this
prospectus is a part, the selling stockholder had no arrangements
or
understandings, directly or indirectly, with any person to distribute
the
securities.
|
(16)
|
Excludes
shares of common stock and shares of common stock underlying warrants
held
by Trellus Offshore Fund Ltd, Trellus Partners LP, Trellus Small
Cap
Opportunity Fund LP and Trellus Small Cap Opportunity Offshore Fund
Ltd.
|
|
|
(17)
|
The
selling stockholder is offering 311,600 shares of common stock and
124,640
shares of common stock underlying warrants received as an investor
in the private placement. Adam Usdan, the president of Trellus Small
Cap Opportunity Fund LP, has voting and investment control over the
shares. The selling stockholder purchased the securities in the ordinary
course of business and at the time of the purchase of the securities
being
registered for sale pursuant to the registration statement, of which
this
prospectus is a part, the selling stockholder had no arrangements
or
understandings, directly or indirectly, with any person to distribute
the
securities.
|
|
|
(18)
|
Excludes
shares of common stock and shares of common stock underlying warrants
held
by Trellus Offshore Fund Ltd, Trellus Partners LP, Trellus Partners
II LP
and Trellus Small Cap Opportunity Offshore Fund Ltd.
|
|
|
(19)
|
The
selling stockholder is offering 188,400 shares of common stock and
75,360
shares of common stock underlying warrants received as an investor
in the private placement. Adam Usdan, the president of Trellus Small
Cap Opportunity Offshore Fund Ltd, has voting and investment control
over
the shares. The selling stockholder purchased the securities in the
ordinary course of business and at the time of the purchase of the
securities being registered for sale pursuant to the registration
statement, of which this prospectus is a part, the selling stockholder
had
no arrangements or understandings, directly or indirectly, with any
person
to distribute the securities.
|
|
|
(20)
|
Excludes
shares of common stock and shares of common stock underlying warrants
held
by Trellus Offshore Fund Ltd, Trellus Partners LP, Trellus Partners
II LP
and Trellus Small Cap Opportunity Fund
LP.
|
·
|
ordinary
brokerage transactions and transactions in which the broker-dealer
solicits investors;
|
·
|
block
trades in which the broker-dealer will attempt to sell the shares
as agent
but may position and resell a portion of the block as principal to
facilitate the transaction;
|
·
|
purchases
by a broker-dealer as principal and resale by the broker-dealer for
its
account;
|
·
|
an
exchange distribution in accordance with the rules of the applicable
exchange;
|
·
|
privately
negotiated transactions;
|
·
|
to
cover short sales made after the date that this registration statement
is
declared effective by the SEC;
|
·
|
broker-dealers
may agree with the selling stockholders to sell a specified number
of such
shares at a stipulated price per
share;
|
·
|
a
combination of any such methods of sale;
and
|
·
|
any
other method permitted pursuant to applicable
law.
|
·
|
it
intends to take possession of the registered securities or to facilitate
the transfer of such certificates;
|
·
|
the
complete details of how the selling stockholders' shares are and
will be
held, including location of the particular
accounts;
|
·
|
whether
the member firm or any direct or indirect affiliates thereof have
entered
into, will facilitate or otherwise participate in any type of payment
transaction with the selling stockholders, including details regarding
any
such transactions; and
|
·
|
in
the event any of the securities offered by the selling stockholders
are
sold, transferred, assigned or hypothecated by any selling stockholder
in
a transaction that directly or indirectly involves a member firm
of FINRA
or any affiliates thereof, that prior to or at the time of said
transaction the member firm will timely file all relevant documents
with
respect to such transaction(s) with the Corporate Finance Department
of
FINRA for review.
|
Quarter
Ended
|
High Bid
($) |
Low Bid ($)
|
|||||
March
31, 2006
|
6.00
|
3.50
|
|||||
June
30, 2006
|
5.03
|
3.00
|
|||||
September
30, 2006
|
3.25
|
3.25
|
|||||
December
31, 2006
|
3.25
|
3.25
|
|||||
March
31, 2007
|
11.00
|
2.75
|
|||||
June
30, 2007
|
6.00
|
1.80
|
|||||
September
30, 2007
|
2.25
|
1.65
|
|||||
December
31, 2007
|
2.10
|
1.19
|
|||||
March
31, 2008
|
1.55
|
1.11
|
|
(a)
|
(b)
|
(c)
|
|||||||
Plan
category
|
Number of securities to
be issued upon exercise
of outstanding options,
warrants and rights
|
Weighted-average
exercise price of
outstanding options,
warrants and rights
|
Number of securities
remaining available for future issuance under
equity compensation plans
(excluding securities reflected in column (a))
|
|||||||
Equity
compensation plans approved by security holders (1)
|
1,
266,601
|
$
|
2.09
|
2,333,399
|
||||||
Equity
compensation plans not approved by security holders (2)
|
1,784,337
|
$
|
1.08
|
N/A
|
||||||
Total
|
3,050,938
|
$
|
1.50
|
2,333,399
|
Post Merger
|
||||||||||
Number of Shares of
Organic Holding Company, Inc.
Common Stock Underlying
Options |
Weighted Average
Exercise Price
of Options
|
Number of Shares
of our Common Stock
Underlying Options
|
Weighted Average
Exercise Price
of Options (1)
|
|||||||
939,432
|
$
|
0.38
|
655,545
|
$
|
0.54
|
Report
of Independent Registered Accounting Firm
|
|
F-2
|
|
|
|
Balance
Sheets
|
|
F-3
|
|
|
|
Statements
of Operations
|
|
F-4
|
|
|
|
Statement
of Stockholders’ Deficit
|
|
F-5
|
|
|
|
Statements
of Cash Flows
|
|
F-6
|
|
|
|
Notes
to Financial Statements
|
|
F-7
|
Organic
To Go Food Corporation and its wholly-owned subsidiary, Organic To
Go,
Inc.
|
Consolidated
Balance Sheets
|
(in
thousands, except share
amounts)
|
|
December
31, |
December
31, |
|||||
|
2006
|
2007
|
|||||
Current
assets
|
|
|
|||||
Cash
and cash equivalents
|
$
|
865
|
$
|
668
|
|||
Accounts
receivable, net of allowance of $54 and $47
|
365
|
1,099
|
|||||
Inventory
|
236
|
845
|
|||||
Prepaid
expenses and other current assets
|
189
|
489
|
|||||
Total
current assets
|
1,655
|
3,101
|
|||||
Property
and equipment, net
|
2,148
|
5,465
|
|||||
Identifiable
intangible assets, net
|
851
|
3,853
|
|||||
Deposits
and other assets
|
623
|
521
|
|||||
|
|||||||
Total
assets
|
$
|
5,277
|
$
|
12,940
|
|||
|
|||||||
Current
liabilities
|
|||||||
Accounts
payable
|
$
|
1,337
|
$
|
2,040
|
|||
Accrued
liabilities
|
881
|
780
|
|||||
Current
portion of notes payable, net of discount
|
6,281
|
1,474
|
|||||
Current
portion of capital lease obligations
|
50
|
463
|
|||||
Total
current liabilities
|
8,549
|
4,757
|
|||||
Deferred
rent
|
-
|
52
|
|||||
Notes
payable, net of current portion
|
592
|
1,044
|
|||||
Capital
lease obligations, net of current portion
|
137
|
440
|
|||||
Total
liabilities
|
9,278
|
6,293
|
|||||
Stockholders'
equity (deficit)
|
|||||||
Preferred
Stock; $0.001 par value; 9,670,000 and 10,000,000 shares authorized,
9,670,000 and no shares issued and outstanding
|
8
|
-
|
|||||
Common
stock and additional paid-in capital; $0.001 par value;
|
|||||||
15,100,000
and 500,000,000 shares authorized; 3,454,910 and 27,758,326 shares
issued
and outstanding
|
10,414
|
33,215
|
|||||
Accumulated
deficit
|
(14,423
|
)
|
(26,568
|
)
|
|||
Total
stockholders' equity (deficit)
|
(4,001
|
)
|
6,647
|
||||
|
|||||||
Total
liabilities and stockholders' equity (deficit)
|
$
|
5,277
|
$
|
12,940
|
Organic
To Go Food Corporation and its wholly-owned subsidiary, Organic To
Go,
Inc.
|
Consolidated
Statements of Operations
|
(in
thousands, except per share
amounts)
|
|
Year ended December 31,
|
||||||
|
2006
|
2007
|
|||||
|
|
|
|||||
Sales
|
$
|
9,663
|
$
|
15,902
|
|||
|
|||||||
Cost
of sales
|
4,876
|
7,361
|
|||||
|
|||||||
Gross
Profit
|
4,787
|
8,541
|
|||||
|
|||||||
Operating
expenses
|
10,483
|
16,075
|
|||||
Depreciation
and amortization
|
1,206
|
4,008
|
|||||
Loss
from operations
|
(6,902
|
)
|
(11,542
|
)
|
|||
|
|||||||
Interest
income (expense), net
|
(1,064
|
)
|
(603
|
)
|
|||
|
|||||||
Loss
before income taxes
|
(7,966
|
)
|
(12,145
|
)
|
|||
|
|||||||
Income
taxes
|
-
|
-
|
|||||
|
|||||||
Net
loss
|
$
|
(7,966
|
)
|
$
|
(12,145
|
)
|
|
|
|||||||
Net
loss per share - basic and diluted
|
$
|
(2.78
|
)
|
$
|
(0.57
|
)
|
|
|
|||||||
Weighted
average shares outstanding
|
2,868
|
21,136
|
Organic
To Go Food Corporation and its wholly-owned subsidiary, Organic To
Go,
Inc.
|
|||||||||||||||||||
Consolidated
Statement of Stockholders' Equity (Deficit)
|
|||||||||||||||||||
(in
thousands, except share
amounts)
|
|
Series A, B & C
Preferred Stock
|
Common Stock and
Additional Paid-in
Capital |
Accumulated
|
Total
Stockholders'
Equity
|
|||||||||||||||
|
Shares
|
Amount
|
Shares
|
Amount
|
Deficit
|
(Deficit)
|
|||||||||||||
Balance
at December 31, 2005
|
2,988,683
|
$
|
4
|
2,942,402
|
$
|
4,367
|
$
|
(6,457
|
)
|
$
|
(2,086
|
)
|
|||||||
Issuance
of Series C Preferred Stock and warrants for cash and conversion
of notes
payable
|
2,664,153
|
4
|
4,477
|
4,481
|
|||||||||||||||
Issuance
of warrants with borrowings
|
1,476
|
1,476
|
|||||||||||||||||
Stock
issue costs
|
(32
|
)
|
(32
|
)
|
|||||||||||||||
Redemption
of common stock for cash
|
(132,961
|
)
|
(2
|
)
|
(2
|
)
|
|||||||||||||
Issuance
of common stock
|
89,463
|
128
|
128
|
||||||||||||||||
Net
loss
|
(7,966
|
)
|
(7,966
|
)
|
|||||||||||||||
Balance
at December 31, 2006
|
5,652,836
|
$
|
8
|
2,898,904
|
$
|
10,414
|
$
|
(14,423
|
)
|
$
|
(4,001
|
)
|
|||||||
|
|||||||||||||||||||
Conversion
of preferred stock into common stock
|
(5,652,836
|
)
|
(8
|
)
|
5,734,769
|
8
|
-
|
||||||||||||
Conversion
of bridge notes into common stock
|
4,629,340
|
4,225
|
4,225
|
||||||||||||||||
SP
Holding Corporation shares outstanding at merger
|
1,126,659
|
(15
|
)
|
(15
|
)
|
||||||||||||||
Issuance
of common shares and warrants for cash
|
12,137,418
|
19,059
|
19,059
|
||||||||||||||||
Stock
issue costs
|
(1,875
|
)
|
(1,875
|
)
|
|||||||||||||||
Issuance
of common shares in connection with acquisition of assets
|
685,224
|
1,084
|
1,084
|
||||||||||||||||
Issuance
of common shares upon exercise of warrants
|
546,012
|
-
|
-
|
||||||||||||||||
Stock
based compensation
|
315
|
315
|
|||||||||||||||||
Net
loss for the year ended December 31, 2007
|
(12,145
|
)
|
(12,145
|
)
|
|||||||||||||||
Balance
at December 31, 2007
|
-
|
$
|
-
|
27,758,326
|
$
|
33,215
|
$
|
(26,568
|
)
|
$
|
6,647
|
Organic
To Go Food Corporation and its wholly-owned subsidiary, Organic To
Go,
Inc.
|
|||||||
Consolidated
Statements of Cash Flows
|
|||||||
(in
thousands)
|
|
Year
ended December 31,
|
||||||
|
2006
|
2007
|
|||||
Cash
flows from operating activities:
|
|
|
|||||
Net
loss
|
$
|
(7,966
|
)
|
$
|
(12,145
|
)
|
|
Adjustments
to reconcile net loss to net
|
|
|
|||||
cash
used by operating activities:
|
|
|
|||||
Depreciation
and amortization expense
|
1,206
|
4,008
|
|||||
Non-cash
interest expense
|
776
|
223
|
|||||
Stock-based
compensation expense
|
10
|
315
|
|||||
Changes
in operating assets and liabilities:
|
|
|
|||||
Accounts
receivable
|
(281
|
)
|
(734
|
)
|
|||
Inventory
|
42
|
(521
|
)
|
||||
Prepaid
expenses and other current assets
|
(123
|
)
|
(288
|
)
|
|||
Accounts
payable
|
(245
|
)
|
576
|
||||
Accrued
liabilities and deferred rent
|
431
|
(872
|
)
|
||||
Other
|
133
|
(279
|
)
|
||||
Net
cash used by operating activities
|
(6,017
|
)
|
(9,717
|
)
|
|||
Cash
flows from investing activities:
|
|
|
|||||
Purchases
of property, equipment and other assets
|
(172
|
)
|
(2,934
|
)
|
|||
Purchase
of intangible assets
|
(1,010
|
)
|
(4,276
|
)
|
|||
Net
cash used by investing activities
|
(1,182
|
)
|
(7,210
|
)
|
|||
Cash
flows from financing activities:
|
|
|
|||||
Principal
payments of notes payable
|
(264
|
)
|
(1,055
|
)
|
|||
Payments
of capital lease obligations
|
(47
|
)
|
(266
|
)
|
|||
Proceeds
from issuance of notes payable
|
5,918
|
868
|
|||||
Proceeds
from sale of preferred stock, net of issue costs
|
2,209
|
-
|
|||||
Redemption
of common stock
|
(2
|
)
|
-
|
||||
Proceeds
from sale of common stock, net of issue costs
|
-
|
17,183
|
|||||
Net
cash provided by financing activities
|
7,814
|
16,730
|
|||||
Net
increase in cash and cash equivalents
|
615
|
(197
|
)
|
||||
Cash
and cash equivalents, beginning of period
|
250
|
865
|
|||||
Cash
and cash equivalents, end of period
|
$
|
865
|
$
|
668
|
|||
|
|
|
|||||
Supplemental
disclosures of cash flow information:
|
|
|
|||||
Cash
paid for interest
|
$
|
237
|
$
|
505
|
|||
Cash
paid for income taxes
|
$
|
-
|
$
|
-
|
|||
Non-cash
investing and financing activities:
|
|
|
|||||
Notes
payable converted into preferred stock
|
$
|
1,843
|
$
|
-
|
|||
Preferred
stock converted into common stock
|
$
|
-
|
$
|
5,700
|
|||
Notes
payable converted into common stock
|
$
|
-
|
$
|
4,225
|
|||
Assets
purchased through issuance of common stock
|
$
|
-
|
$
|
1,084
|
|||
Capital
lease obligations incurred
|
$
|
-
|
$
|
1,017
|
|||
Notes
payable for assets purchased
|
$
|
-
|
$
|
225
|
|||
Fixed
assets acquired under financing agreements
|
$
|
326
|
$
|
-
|
Inventories
at December 31, consist of the following (in thousands):
|
2006
|
2007
|
|||||
Food
and beverages
|
$
|
191
|
$
|
820
|
|||
Paper
products
|
45
|
25
|
|||||
|
$
|
236
|
$
|
845
|
Property
and equipment at December 31, consist of the following
(in
thousands):
|
2006
|
2007
|
|||||
Leasehold
improvements
|
$
|
1,512
|
$
|
2,389
|
|||
Furniture,
fixtures and equipment
|
1,452
|
3,878
|
|||||
Vehicles
|
391
|
1,156
|
|||||
Leased
equipment
|
259
|
686
|
|||||
|
3,614
|
8,109
|
|||||
Less
accumulated depreciation and amortization
|
1,466
|
2,644
|
|||||
|
$
|
2,148
|
$
|
5,465
|
|
December
31,
|
December
31,
|
|||||
|
2006
|
2007
|
|||||
Notes
payable, 6% to 25% interest collateralized by vehicles and
equipment
|
$
|
323
|
$
|
141
|
|||
Convertible
note payable, 8.25% interest, collateralized by substantially all
assets
|
759
|
759
|
|||||
Notes
payable, 7.75% interest, collateralized by certain assets, due April
2010
|
418
|
418
|
|||||
Convertible
notes payable, 8% interest, due June 2008
|
525
|
-
|
|||||
Note
payable, 9.25% interest, due March 2009
|
-
|
97
|
|||||
Note
payable, 8.0% interest, due October 2009
|
-
|
54
|
|||||
Notes
payable, 18% interest, due May 2008
|
500
|
||||||
Convertible
notes payable, 8% interest, due June 2007
|
5,275
|
-
|
|||||
Note
payable, 9% interest, due December 2006
|
275
|
-
|
|||||
Notes
payable, 10.5% interest, due December 2009
|
-
|
549
|
|||||
Total
notes payable
|
7,575
|
2,518
|
|||||
Less:
unamortized original discount
|
(702
|
)
|
-
|
||||
Less:
current portion of notes payable
|
(6,281
|
)
|
(1,474
|
)
|
|||
Notes
payable, net of current portion
|
$
|
592
|
$
|
1,044
|
2008
|
$
|
1,474
|
||
2009
|
856
|
|||
2010
|
188
|
|||
|
$
|
2,518
|
|
Outstanding
|
Weighted
average exercise price
|
Weighted
average remaining life in
years |
Aggretate
intrinsic value
|
|||||||||
Balance
at January 1, 2005
|
-
|
||||||||||||
Granted
|
655,545
|
$
|
0.54
|
10.0
|
|||||||||
Exercised
|
-
|
||||||||||||
Forfeitures
|
-
|
||||||||||||
Balance
at December 31, 2006
|
655,545
|
0.54
|
9.4
|
$
|
585
|
||||||||
Granted
|
2,827,965
|
1.55
|
|||||||||||
Exercised
|
-
|
||||||||||||
Forfeitures
|
(432,572
|
)
|
1.98
|
||||||||||
Balance
at December 31, 2007
|
3,050,938
|
$
|
1.50
|
8.2
|
$
|
762
|
|||||||
Exercisable
at December 31, 2007
|
467,026
|
$
|
0.70
|
8.7
|
$
|
435
|
|
Options
outstanding
|
Options
exercisable
|
||||||||||||||
Range
of exercise
prices |
number
|
Weighted
average exercise
price |
Weighted
average remaining
life in years |
number
|
Weighted
average exercise
price |
|||||||||||
$0.17
|
349,254
|
$
|
0.17
|
8.2
|
282,773
|
$
|
0.17
|
|||||||||
$0.34
|
118,628
|
0.34
|
8.5
|
44,485
|
0.34
|
|||||||||||
$1.38
|
1,246,674
|
1.38
|
9.1
|
-
|
||||||||||||
$1.43
- $1.48
|
369,781
|
1.47
|
9.7
|
110,080
|
1.43
|
|||||||||||
$1.60
- 1.92
|
355,000
|
1.80
|
9.7
|
-
|
||||||||||||
$2.23
|
461,601
|
2.23
|
9.6
|
-
|
||||||||||||
$3.60
|
150,000
|
3.60
|
9.5
|
29,688
|
3.60
|
|||||||||||
|
3,050,938
|
$
|
1.50
|
467,026
|
$
|
0.70
|
Inventory
|
$
|
12
|
||
Furniture,
fixtures and equipment
|
29
|
|||
Customer
based intangible assets
|
860
|
|||
Covenant
not compete intangible asset
|
150
|
|||
Note
payable assumed
|
(9
|
)
|
||
Total
|
$
|
1,042
|
Inventory
|
$
|
32
|
||
Furniture,
fixtures, equipment and vehicles
|
160
|
|||
Customer
based intangible assets
|
1,084
|
|||
Liabilities
assumed
|
(42
|
)
|
||
Total
|
$
|
1,234
|
Inventory
and other assets
|
$
|
90
|
||
Furniture,
fixtures, equipment and vehicles
|
210
|
|||
Customer
based intangible assets
|
3,100
|
|||
Total
|
$
|
3,400
|
|
2006
|
2007
|
|||||
Sales
|
$
|
16,414
|
$
|
20,189
|
|||
Net
loss
|
$
|
(9,774
|
)
|
$
|
(11,040
|
)
|
|
Net
loss per share
|
$
|
(2.94
|
)
|
$
|
(0.39
|
)
|
Inventory
and other assets
|
$
|
12
|
||
Furniture,
fixtures, equipment and vehicles
|
30
|
|||
Customer
based intangible assets
|
558
|
|||
Total
|
$
|
600
|
Inventory
(and other assets)
|
$
|
11
|
||
Furniture,
fixtures, equipment and vehicles
|
25
|
|||
Customer
based intangible assets
|
379
|
|||
Total
|
$
|
415
|
Inventory
and other assets
|
$
|
6
|
||
Furniture,
fixtures, equipment and vehicles
|
30
|
|||
Customer
based intangible assets
|
394
|
|||
Total
|
$
|
430
|
|
Operating
|
Capital
|
|||||
2008
|
$
|
1,529
|
$
|
552
|
|||
2009
|
1,168
|
261
|
|||||
2010
|
1,067
|
145
|
|||||
2011
|
981
|
88
|
|||||
2012
and thereafter
|
1,740
|
32
|
|||||
|
6,485
|
1,078
|
|||||
Less
amounts representing interest
|
|
(175
|
)
|
||||
|
$
|
6,485
|
$
|
903
|
Deferred
tax assets
|
2006
|
2007
|
|||||
Net
operating loss carryforwards
|
$
|
4,689
|
$
|
7,919
|
|||
Property
and equipment
|
351
|
122
|
|||||
Intangible
assets
|
58
|
1,111
|
|||||
Other
|
112
|
262
|
|||||
Total
deferred tax assets
|
5,210
|
9,414
|
|||||
Valuation
allowance
|
(
5,210
|
)
|
(9,414
|
)
|
|||
Deferred
tax assets, net of valuation allowance.
|
$
|
-
|
$
|
-
|
Amount
|
||||
Registration
Fee
|
$
|
333.29
|
||
Accounting
Fees and Expenses
|
10,000.00
|
|||
Printing
Fees
|
5,000.00
|
|||
Legal
Fees and Expenses
|
75,000.00
|
|||
Miscellaneous
Fees and Expenses
|
5,000.00
|
|||
Total
|
$
|
95,333.29
|
|
·
|
8,633,765
shares of our common stock in exchange for all 12,372,712 outstanding
shares of Organic Holding Company, Inc. common and preferred
stock;
|
|
·
|
options
to purchase an aggregate of 718,337 shares of our common stock in
exchange
for all of the outstanding options to purchase an aggregate of 1,029,432
shares of Organic Holding Company, Inc. common
stock;
|
|
·
|
options
to purchase an aggregate of 1,246,674 shares of our common stock
to our
Chief Executive Officer and Chairman, Jason Brown, pursuant to his
employment agreement;
|
|
·
|
warrants
to purchase an aggregate of 2,350,968 shares of our common stock
in
exchange for all of the outstanding warrants to purchase an aggregate
of
3,369,137 shares of Organic Holding Company, Inc. capital
stock;
|
|
·
|
115.731
units, comprised of an aggregate of 4,629,240 shares of our common
stock
and warrants to purchase 925,848 shares of our common stock in exchange
for certain Organic Holding Company, Inc. bridge
notes;
|
|
·
|
687,271
shares of our common stock upon conversion of 60 shares of our Series
A
Convertible Preferred Stock;
|
|
·
|
138
units, comprised of an aggregate of 5,523,000 shares of our common
stock
and warrants to purchase an aggregate of 1,104,600 shares of our
common
stock, at $50,000 per unit for a total offering price of $6,903,740,
to
investors in the private placement;
and
|
|
·
|
warrants
to purchase 888,899 shares of our common stock to the placement agents
in
the private placement as consideration for services
rendered.
|
Exhibit
Number
|
|
Description
|
|
|
|
2.1
|
|
Agreement
and Plan of Merger and Reorganization, dated as of January 11, 2007
(1)
|
|
|
|
2.2
|
|
First
Amendment to Agreement and Plan of Merger and Reorganization and
Company
Disclosure Schedule, dated as of February 12, 2007 (2)
|
|
|
|
3.1
|
|
Amended
and Restated Certificate of Incorporation (3)
|
|
|
|
3.2
|
|
Certificate
of Amendment to Amended and Restated Certificate of Incorporation
(4)
|
|
|
|
3.3
|
|
Amended
and Restated Bylaws (5)
|
|
|
|
4.1
|
|
Specimen
Common Stock Certificate (2)
|
|
|
|
4.2
|
|
Form
of Warrant (2)
|
|
|
|
4.3
|
|
Form
of Warrant issued in connection with June 28, 2007 Private Placement
(6)
|
4.4
|
|
Form
of Warrant issued in connection with October 2007 Private Placement
(7)
|
4.5
|
Form
of Warrant issued in connection with January 2008 Private Placement
(14)
|
|
4.6
|
Form
of Unconditional Warrant issued in connection with February 2008
Private
Placement (16)
|
|
4.7
|
Form
of Conditional Warrant issued in connection with February 2008 Private
Placement (16)
|
|
|
|
|
5.1
|
|
Opinion
of Loeb & Loeb LLP**
|
|
|
|
10.1
|
|
Asset
Purchase Agreement by and between Organic Holding Company, Inc. and
Briazz
Inc. (2)
|
|
|
|
10.2
|
|
Asset
Purchase Agreement by and among Vinaigrettes LLC, Dan Karzen and
Organic
Holding Company, Inc. (2)
|
|
|
|
10.3
|
|
Placement
Agent Agreement, dated December 18, 2006, by and between Organic
Holding
Company, Inc. and Burnham Hill Partners, a division of Pali Capital,
Inc.
(2)
|
|
|
|
10.4
|
|
Form
of Subscription Agreement by and between SP Holding Corporation and
the
Investors (2)
|
|
|
|
10.5
|
|
2007
Equity Participation Plan of Organic To Go Food Corporation
(4)
|
|
|
|
10.6
|
|
Escrow
Agreement, dated June 20, 2007 (6)
|
|
|
|
10.7
|
|
Securities
Purchase Agreement, dated June 26, 2007 (6)
|
|
|
|
10.8
|
|
Registration
Rights Agreement, dated June 26, 2007 (6)
|
|
|
|
10.9
|
|
Joinder
to each of the Securities Purchase Agreement and the Registration
Rights
Agreement, dated June 28, 2007 (10)
|
|
|
|
10.10
|
|
Employment
Agreement between Organic To Go, Inc. and Andrew Jacobs
(11)
|
|
|
|
10.11
|
|
Escrow
Agreement, dated October 10, 2007 (7)
|
|
|
|
10.12
|
|
Securities
Purchase Agreement, dated October 12, 2007 (7)
|
|
|
|
10.13
|
|
Registration
Rights Agreement, dated October 12, 2007 (7)
|
|
|
|
10.14
|
|
Joinder
to each of the Securities Purchase Agreement and the Registration
Rights
Agreement, dated October 12, 2007 (9)
|
|
|
|
10.15
|
|
Agreement
of Purchase and Sale of Assets (8)
|
|
|
|
10.16
|
|
First
Amendment to Agreement of Purchase and Sale of Assets
(8)
|
10.17
|
Employment
Agreement by and between Michael Gats and Organic To Go Food Corporation
(13)
|
|
10.18
|
Securities
Purchase Agreement, dated January 25, 2008 (14)
|
|
10.19
|
Employment
Agreement by and between Jason Brown and Organic To Go Food Corporation
(15)
|
|
10.20
|
Securities
Purchase Agreement, dated February 19, 2008 (16)
|
|
10.21
|
Registration
Rights Agreement, dated February 27, 2008 (16)
|
|
10.22
|
Deferred
Registration Rights Agreement, dated February 27, 2008
(16)
|
|
|
|
|
16.1
|
|
Letter
from De Leon & Company, P.A. to the SEC, dated March 7, 2007
(12)
|
|
|
|
21.1
|
|
List
of Subsidiaries (2)
|
|
|
|
23.1
|
|
Consent
of Rose, Snyder & Jacobs*
|
|
|
|
23.2
|
|
Consent
of Loeb & Loeb LLP (included in Exhibit 5.1)**
|
|
|
|
24.1
|
|
Power
of Attorney**
|
*
|
|
Filed
herewith
|
**
|
Previously
filed
|
|
|
|
|
(1)
|
|
Filed
on January 17, 2007 as an exhibit to our Current Report on Form 8-K
and
incorporated herein by reference.
|
|
|
|
(2)
|
|
Filed
on February 13, 2007 as an exhibit to our Current Report on Form
8-K and
incorporated herein by reference.
|
|
|
|
(3)
|
|
Filed
on December 13, 2003 as an exhibit to our Current Report on Form
8-K and
incorporated herein by reference.
|
|
|
|
(4)
|
|
Filed
on May 21, 2007 as an exhibit to our Current Report on Form 8-K and
incorporated herein by reference.
|
|
|
|
(5)
|
|
Filed
on May
14, 2001
as
an exhibit to our report
on Form 10-QSB
and
incorporated herein by reference.
|
|
|
|
(6)
|
|
Filed
on June 27, 2007 as an exhibit to our Current Report on Form 8-K
and
incorporated herein by reference.
|
|
|
|
(7)
|
|
Filed
on October 18, 2007 as an exhibit to our Current Report on Form 8-K
and
incorporated herein by reference.
|
|
|
|
(8)
|
|
Filed
on October 24, 2007 as an exhibit to our Current Report on Form 8-K
and
incorporated herein by reference.
|
(9)
|
|
Filed
on November 5, 2007 as an exhibit to our Current Report on Form 8-K
and
incorporated herein by reference.
|
|
|
|
(10)
|
|
Filed
on June 29, 2007 as an exhibit to our Current Report on Form 8-K
and
incorporated herein by reference.
|
(11)
|
|
Filed
on July 13, 2007 as an exhibit to our Registration Statement on Form
SB-2
and incorporated herein by reference.
|
|
|
|
(12)
|
|
Filed
on March 9, 2007 as an exhibit to our Current Report on Form 8-K
and
incorporated herein by reference.
|
(13)
|
Filed
on December 19, 2007 as an exhibit to our Current Report on Form
8-K and
incorporated herein by reference.
|
|
(14)
|
Filed
on January 28, 2008 as an exhibit to our Current Report on Form 8-K
and
incorporated herein by reference.
|
|
|
||
(15)
|
Filed
on February 13, 2008 as an exhibit to our Current Report on Form
8-K and
incorporated herein by reference.
|
|
(16)
|
Filed
on February 25, 2008 as an exhibit to our Current Report on Form
8-K and
incorporated herein by reference.
|
(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:
|
|
(i)
|
To
include any prospectus required by Section 10(a)(3) of the Securities
Act;
|
|
(ii)
|
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
|
|
(iii)
|
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.
|
|
(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.
|
|
(4)
|
That,
for the purpose of determining liability under the Securities Act
to any
purchaser each prospectus filed pursuant to Rule 424(b) as part of
a
registration statement relating to an offering, other than registration
statements relying on Rule 430B or other than prospectuses filed
in
reliance on Rule 430A, shall be deemed to be part of and included
in the
registration statement as of the date it is first used after
effectiveness. 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 first use, 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
date of
first use.
|
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.
|
ORGANIC
TO GO FOOD CORPORATION
(Registrant)
|
|
|
|
By:
|
/s/ Jason
Brown
|
|
Jason Brown
Chief Executive Officer
and Chairman
|
Signature
|
|
Title
|
|
Date
|
|
|
|
|
|
/s/
Jason Brown
|
|
Chief Executive Officer
and Chairman
|
|
May
1, 2008
|
Jason
Brown
|
|
(Principal Executive Officer)
|
|
|
/s/
Michael Gats
|
Chief
Financial Officer
|
May
1, 2008
|
||
Michael
Gats
|
(Principal Accounting Officer and Principal
Financial Officer) |
|||
|
|
|
|
|
/s/
Dave Smith*
|
|
Director
|
|
May
1, 2008
|
Dave
Smith
|
|
|
|
|
|
|
|
|
|
/s/
Peter Meehan*
|
|
Director
|
|
May
1, 2008
|
Peter
Meehan
|
|
|
|
|
|
|
|
|
|
/s/
Roy Bingham*
|
|
Director
|
|
May
1, 2008
|
Roy
Bingham
|
|
|
|
|
|
|
|
|
|
/s/
Douglas Lioon*
|
|
Director
|
|
May
1, 2008
|
Douglas
Lioon
|
|
|
|
|
|
|
|
|
|
/s/
S.M. “Hass” Hassan*
|
|
Director
|
|
May
1, 2008
|
S.M.
“Hass” Hassan
|
|
|
|
|
/s/
Gunnar Weikert
|
|
Director
|
|
May
1, 2008
|
Gunnar
Weikert
|
|
|
|
|
*
By: /s/ Jason Brown
|
May
1, 2008
|
|||
Attorney-in-fact
|
Exhibit
Number
|
|
Description
|
|
|
|
2.1
|
|
Agreement
and Plan of Merger and Reorganization, dated as of January 11, 2007
(1)
|
|
|
|
2.2
|
|
First
Amendment to Agreement and Plan of Merger and Reorganization and
Company
Disclosure Schedule, dated as of February 12, 2007 (2)
|
|
|
|
3.1
|
|
Amended
and Restated Certificate of Incorporation (3)
|
|
|
|
3.2
|
|
Certificate
of Amendment to Amended and Restated Certificate of Incorporation
(4)
|
|
|
|
3.3
|
|
Amended
and Restated Bylaws (5)
|
|
|
|
4.1
|
|
Specimen
Common Stock Certificate (2)
|
|
|
|
4.2
|
|
Form
of Warrant (2)
|
|
|
|
4.3
|
|
Form
of Warrant issued in connection with June 28, 2007 Private Placement
(6)
|
|
|
|
4.4
|
|
Form
of Warrant issued in connection with October 2007 Private Placement
(7)
|
4.5
|
Form
of Warrant issued in connection with January 2008 Private Placement
(14)
|
|
4.6
|
Form
of Unconditional Warrant issued in connection with February 2008
Private
Placement (16)
|
|
4.7
|
Form
of Conditional Warrant issued in connection with February 2008 Private
Placement (16)
|
|
|
|
|
5.1
|
|
Opinion
of Loeb & Loeb LLP**
|
|
|
|
10.1
|
|
Asset
Purchase Agreement by and between Organic Holding Company, Inc. and
Briazz
Inc. (2)
|
|
|
|
10.2
|
|
Asset
Purchase Agreement by and among Vinaigrettes LLC, Dan Karzen and
Organic
Holding Company, Inc. (2)
|
|
|
|
10.3
|
|
Placement
Agent Agreement, dated December 18, 2006, by and between Organic
Holding
Company, Inc. and Burnham Hill Partners, a division of Pali Capital,
Inc.
(2)
|
|
|
|
10.4
|
|
Form
of Subscription Agreement by and between SP Holding Corporation and
the
Investors (2)
|
|
|
|
10.5
|
|
2007
Equity Participation Plan of Organic To Go Food Corporation
(4)
|
|
|
|
10.6
|
|
Escrow
Agreement, dated June 20, 2007 (6)
|
10.7
|
|
Securities
Purchase Agreement, dated June 26, 2007 (6)
|
|
|
|
10.8
|
|
Registration
Rights Agreement, dated June 26, 2007 (6)
|
|
|
|
10.9
|
|
Joinder
to each of the Securities Purchase Agreement and the Registration
Rights
Agreement, dated June 28, 2007 (10)
|
|
|
|
10.10
|
|
Employment
Agreement between Organic To Go, Inc. and Andrew Jacobs
(11)
|
|
|
|
10.11
|
|
Escrow
Agreement, dated October 10, 2007 (7)
|
|
|
|
10.12
|
|
Securities
Purchase Agreement, dated October 12, 2007 (7)
|
|
|
|
10.13
|
|
Registration
Rights Agreement, dated October 12, 2007 (7)
|
|
|
|
10.14
|
|
Joinder
to each of the Securities Purchase Agreement and the Registration
Rights
Agreement, dated October 12, 2007 (9)
|
|
|
|
10.15
|
|
Agreement
of Purchase and Sale of Assets (8)
|
|
|
|
10.16
|
|
First
Amendment to Agreement of Purchase and Sale of Assets
(8)
|
10.17
|
Employment
Agreement by and between Michael Gats and Organic To Go Food Corporation
(13)
|
|
10.18
|
Securities
Purchase Agreement, dated January 25, 2008 (14)
|
|
10.19
|
Employment
Agreement by and between Jason Brown and Organic To Go Food Corporation
(15)
|
|
10.20
|
Securities
Purchase Agreement, dated February 19, 2008 (16)
|
|
10.21
|
Registration
Rights Agreement, dated February 27, 2008 (16)
|
|
10.22
|
Deferred
Registration Rights Agreement, dated February 27, 2008
(16)
|
|
|
|
|
16.1
|
|
Letter
from De Leon & Company, P.A. to the SEC, dated March 7, 2007
(12)
|
|
|
|
21.1
|
|
List
of Subsidiaries (2)
|
|
|
|
23.1
|
|
Consent
of Rose, Snyder & Jacobs*
|
|
|
|
23.2
|
|
Consent
of Loeb & Loeb LLP **
|
|
|
|
24.1
|
|
Power
of Attorney **
|
*
|
|
Filed
herewith
|
**
|
Previously
filed
|
|
|
|
|
(1)
|
|
Filed
on January 17, 2007 as an exhibit to our Current Report on Form 8-K
and
incorporated herein by reference.
|
|
|
|
(2)
|
|
Filed
on February 13, 2007 as an exhibit to our Current Report on Form
8-K and
incorporated herein by reference.
|
|
|
|
(3)
|
|
Filed
on December 13, 2003 as an exhibit to our Current Report on Form
8-K and
incorporated herein by reference.
|
|
|
|
(4)
|
|
Filed
on May 21, 2007 as an exhibit to our Current Report on Form 8-K and
incorporated herein by reference.
|
|
|
|
(5)
|
|
Filed
on May
14, 2001
as
an exhibit to our report
on Form 10-QSB
and
incorporated herein by reference.
|
|
|
|
(6)
|
|
Filed
on June 27, 2007 as an exhibit to our Current Report on Form 8-K
and
incorporated herein by reference.
|
|
|
|
(7)
|
|
Filed
on October 18, 2007 as an exhibit to our Current Report on Form 8-K
and
incorporated herein by reference.
|
|
|
|
(8)
|
|
Filed
on October 24, 2007 as an exhibit to our Current Report on Form 8-K
and
incorporated herein by reference.
|
|
|
|
(9)
|
|
Filed
on November 5, 2007 as an exhibit to our Current Report on Form 8-K
and
incorporated herein by reference.
|
|
|
|
(10)
|
|
Filed
on June 29, 2007 as an exhibit to our Current Report on Form 8-K
and
incorporated herein by reference.
|
(11)
|
|
Filed
on July 13, 2007 as an exhibit to our Registration Statement on Form
SB-2
and incorporated herein by reference.
|
|
|
|
(12)
|
|
Filed
on March 9, 2007 as an exhibit to our Current Report on Form 8-K
and
incorporated herein by reference.
|
(13)
|
Filed
on December 19, 2007 as an exhibit to our Current Report on Form
8-K and
incorporated herein by reference.
|
|
(14)
|
Filed
on January 28, 2008 as an exhibit to our Current Report on Form 8-K
and
incorporated herein by reference.
|
|
|
||
(15)
|
Filed
on February 13, 2008 as an exhibit to our Current Report on Form
8-K and
incorporated herein by reference.
|
|
(16)
|
Filed
on February 25, 2008 as an exhibit to our Current Report on Form
8-K and
incorporated herein by reference.
|
|
(17)
|
Set
forth on the signature page to our Registration Statement on Form
SB-2
filed on November 19, 2007 and incorporated herein by
reference.
|