Contract
NEITHER
THESE SECURITIES NOR THE SECURITIES ISSUABLE UPON EXERCISE OF THESE SECURITIES
HAVE BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE
SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN
AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE
SECURITIES LAWS AS EVIDENCED BY A LEGAL OPINION OF COUNSEL TO THE TRANSFEROR
TO
SUCH EFFECT, THE SUBSTANCE OF WHICH SHALL BE REASONABLY ACCEPTABLE TO THE
COMPANY. THESE SECURITIES AND THE SECURITIES ISSUABLE UPON EXERCISE OF THESE
SECURITIES MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT SECURED
BY SUCH SECURITIES.
ORGANIC
TO GO FOOD CORPORATION
CONDITIONAL
WARRANT
| Warrant No. [ ] |
Original
Issue Date: February [ ],
2008
|
Organic
To Go Food Corporation, a Delaware corporation (the "Company"),
hereby
certifies that, for value received, X.Xxxxxx L.P., a limited partnership
organized under the laws of the Bahamas or its registered assigns (the
"Holder"),
is
entitled to purchase from the Company 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 outstanding shares of capital stock of Company on a fully
diluted basis, taking into account the issuance of Conditional Warrant Share
hereunder, determined in accordance with the treasury stock method under United
States Generally Accepted Accounting Principles (each such share, a "Conditional
Warrant Share"
and all
such shares, the "Conditional
Warrant Shares"),
at any
time and from time to time from and after an Exercise Event and through and
including the Expiration Date, and subject to the following terms and
conditions:
1. Definitions.
As used
in this Conditional Warrant, the following terms shall have the respective
definitions set forth in this Section 1. Capitalized terms that are used and
not
defined in this Conditional Warrant that are defined in the Purchase Agreement
(as defined below) shall have the respective definitions set forth in the
Purchase Agreement.
"Business
Day"
means
any day except Saturday, Sunday and any day that is a federal legal holiday
in
the United States or a day on which banking institutions in the State of New
York are authorized or required by law or other government action to
close.
"Common
Stock"
means
the common stock of the Company, par value $0.001 per share, and any securities
into which such common stock may hereafter be reclassified.
“Exercise
Event” means
the
occurrence of one of the following events: (1) the Company fails to become
listed on The NASDAQ Stock Market (“NASDAQ”)
or the
American Stock Exchange (“AMEX”)
before
the third anniversary of the Original Issue Date; (2) within the first two
years
after the Company is first listed on NASDAQ, it fails for a period greater
than
90 consecutive or nonconsecutive days, in the aggregate, to comply with NASDAQ
continued listing requirements; (3) within the first two years after the Company
is first listed on AMEX, it fails for a period greater than 90 consecutive
or
nonconsecutive days, in the aggregate, to maintain: (a) a market capitalization
of at least $50.00 million; (b) a public float of at least $15.00 million;
(c) a
closing price per share of its Common Stock of at least $2.00 (subject to
adjustments in accordance with Section 9 hereof); and (d) stockholders’ equity
of at least $4.00 million (as such terms are defined in the AMEX rules and
regulations); or (4) a transaction pursuant to which the Company is acquired
or
merged with and into another entity in exchange for consideration having a
value
equal to or less than $2.50 per share (subject to adjustments in accordance
with
Section 9 hereof) before the fifth anniversary of the Original Issue Date;
provided,
however, that the third anniversary deadline set forth in clause (1) above,
and
the 90 day period set forth in clauses (2) and (3) above shall automatically
be
extended for a period equal to such number of days by which the NASDAQ Composite
Index or the AMEX Composite Index, as the case may be, is more than thirty-five
percent (35%) below the closing NASDAQ Composite Index or AMEX Composite Index,
respectively, on the Original Issue Date.
"Exercise
Price" means
$0.001, subject to adjustment in accordance with Section 9.
“Expiration
Date” means
the
earlier of (1) February [ ], 2013, (2) if the Company becomes listed on AMEX,
the date upon which the Holder sells any shares of Common Stock within two
years
after the Company is first listed on AMEX, at a price per share that would
adversely impact the ability of the Company to maintain a closing price for
its
Common Stock of at least $2.00 per share, and (3) the date upon which the
closing price of the Common Stock of the Company on NASDAQ or AMEX is $4.00
per
share (subject to adjustments in accordance with Section 9 hereof) or more
for
any 12 consecutive month period; provided, however, that the Expiration Date
as
defined above shall automatically be extended for a period equal to such number
of days by which the NASDAQ Composite Index or the AMEX Composite Index, where
the Company’s shares are listed, is more than thirty-five percent (35%) below
the closing NASDAQ Composite Index or AMEX Composite Index, respectively, on
the
Closing Date.
"Fundamental
Transaction"
means
any of the following: (1) the Company effects any merger or consolidation of
the
Company with or into another Person, (2) the Company effects any sale of all
or
substantially all of its assets in one or a series of related transactions,
(3)
any tender offer or exchange offer (whether by the Company or another Person)
is
completed pursuant to which holders of Common Stock are permitted to tender
or
exchange their shares for other securities, cash or property, or (4) the Company
effects any reclassification of the Common Stock or any compulsory share
exchange pursuant to which the Common Stock is effectively converted into or
exchanged for other securities, cash or property.
“Original
Issue Date”
means
the Original Issue Date first set forth on the first page of this
Warrant.
"Purchase
Agreement"
means
the Securities Purchase Agreement, dated February [ ], 2008, to which the
Company and the Holder are parties.
"Trading
Day"
means
(i) a day on which the Common Stock is traded on a Trading Market (other than
the OTC Bulletin Board), or (ii) if the Common Stock is not listed on a Trading
Market (other than the OTC Bulletin Board), a day on which the Common Stock
is
traded in the over-the-counter market, as reported by the OTC Bulletin Board,
or
(iii) if the Common Stock is not quoted on any Trading Market, a day on which
the Common Stock is quoted in the over-the-counter market as reported by the
Pink Sheets LLC (or any similar organization or agency succeeding to its
functions of reporting prices); provided, that in the event that the Common
Stock is not listed or quoted as set forth in (i), (ii) and (iii) hereof, then
Trading Day shall mean a Business Day.
2. Registration
of Warrant.
The
Company shall register this Conditional Warrant upon records to be maintained
by
the Company for that purpose (the "Warrant
Register"),
in the
name of the record Holder hereof from time to time. The Company may deem and
treat the registered Holder of this Conditional Warrant as the absolute owner
hereof for the purpose of any exercise hereof or any distribution to the Holder,
and for all other purposes, absent actual notice to the contrary.
3. Registration
of Transfers.
The
Company shall register the transfer of any portion of this Conditional Warrant
in the Warrant Register, upon surrender of this Conditional Warrant, with the
Form of Assignment attached hereto duly completed and signed, to the Company
at
its address specified herein. Upon any such registration or transfer, a new
Conditional Warrant to purchase Common Stock, in substantially the form of
this
Conditional Warrant (any such new Warrant, a "New
Conditional Warrant"),
evidencing the portion of this Conditional Warrant so transferred shall be
issued to the transferee and a New Conditional Warrant evidencing the remaining
portion of this Conditional Warrant not so transferred, if any, shall be issued
to the transferring Holder. The acceptance of the New Conditional Warrant by
the
transferee thereof shall be deemed the acceptance by such transferee of all
of
the rights and obligations of a holder of a Conditional Warrant.
4. Exercise
and Duration of Warrants.
This
Conditional Warrant shall be exercisable by the registered Holder, in whole
or
in part, at any time and from time to time on or after an Exercise Event through
and including the Expiration Date. At 6:30 p.m., New York City time on the
Expiration Date, the portion of this Conditional Warrant not exercised prior
thereto shall be and become void and of no value. The Company may not call
or
redeem any portion of this Conditional Warrant without the prior written consent
of the affected Holder.
5. Delivery
of Conditional Warrant Shares.
(a) To
effect
exercises hereunder, the Holder shall not be required to physically surrender
this Conditional Warrant unless the aggregate Conditional Warrant Shares
represented by this Conditional Warrant is being exercised. Upon delivery of
the
Exercise Notice (in the form attached hereto) to the Company (with the attached
Conditional Warrant Shares Exercise Log) at its address for notice set forth
herein and upon payment of the Exercise Price multiplied by the number of
Conditional Warrant Shares that the Holder intends to purchase hereunder, the
Company shall promptly (but in no event later than three Trading Days after
the
Date of Exercise (as defined herein)) issue and deliver to the Holder, a
certificate for the Conditional Warrant Shares issuable upon such exercise,
which, unless otherwise required by the Purchase Agreement, shall be free of
restrictive legends. The Company shall, subsequent to the date on which a
registration statement covering the resale of the Conditional Warrant Shares
has
been declared effective by the Securities and Exchange Commission, use its
reasonable best efforts to deliver Conditional Warrant Shares hereunder
electronically through the Depository Trust Corporation or another established
clearing corporation performing similar functions, if available, provided,
that,
the Company may, but will not be required to change its transfer agent if its
current transfer agent cannot deliver Conditional Warrant Shares electronically
through the Depository Trust Corporation. A "Date
of Exercise"
means
the date on which the Holder shall have delivered to the Company: (i) the
Exercise Notice (with the Conditional Warrant Exercise Log attached to it),
appropriately completed and duly signed and (ii) if such Holder is not utilizing
the cashless exercise provisions set forth in this Conditional Warrant, payment
of the Exercise Price for the number of Conditional Warrant Shares so indicated
by the Holder to be purchased.
(b) If
by the
third Trading Day after a Date of Exercise the Company fails to deliver the
required number of Conditional Warrant Shares in the manner required pursuant
to
Section 5(a), then the Holder will have the right to rescind such
exercise.
(c) If
by the
third Trading Day after a Date of Exercise the Company fails to deliver the
required number of Conditional Warrant Shares in the manner required pursuant
to
Section 5(a), and if after such third Trading Day and prior to the receipt
of
such Conditional Warrant Shares, the Holder purchases (in an open market
transaction or otherwise) shares of Common Stock to deliver in satisfaction
of a
sale by the Holder of the Conditional Warrant Shares which the Holder
anticipated receiving upon such exercise (a "Buy-In"),
then
the Company shall (1) pay in cash to the Holder the amount by which (x) the
Holder's total purchase price (including brokerage commissions, if any) for
the
shares of Common Stock so purchased exceeds (y) the amount obtained by
multiplying (A) the number of Conditional Warrant Shares that the Company was
required to deliver to the Holder in connection with the exercise at issue
by
(B) the closing bid price of the Common Stock on the Date of Exercise and (2)
at
the option of the Holder, either reinstate the portion of the Warrant and
equivalent number of Conditional Warrant Shares for which such exercise was
not
honored or deliver to the Holder the number of shares of Common Stock that
would
have been issued had the Company timely complied with its exercise and delivery
obligations hereunder. The Holder shall provide the Company written notice
indicating the amounts payable to the Holder in respect of the Buy-In.
(d) The
Company's obligations to issue and deliver Conditional Warrant Shares in
accordance with the terms hereof are absolute and unconditional, irrespective
of
any action or inaction by the Holder to enforce the same, any waiver or consent
with respect to any provision hereof, the recovery of any judgment against
any
Person or any action to enforce the same, or any setoff, counterclaim,
recoupment, limitation or termination, or any breach or alleged breach by the
Holder or any other Person of any obligation to the Company or any violation
or
alleged violation of law by the Holder or any other Person, and irrespective
of
any other circumstance which might otherwise limit such obligation of the
Company to the Holder in connection with the issuance of Conditional Warrant
Shares. Nothing herein shall limit a Xxxxxx's right to pursue any other remedies
available to it hereunder, at law or in equity including, without limitation,
a
decree of specific performance and/or injunctive relief with respect to the
Company's failure to timely deliver certificates representing Conditional
Warrant Shares upon exercise of the Conditional Warrant as required pursuant
to
the terms hereof.
6. Charges,
Taxes and Expenses.
Issuance and delivery of Conditional Warrant Shares upon exercise of this
Conditional Warrant shall be made without charge to the Holder for any issue
or
transfer tax, withholding tax, transfer agent fee or other incidental tax or
expense in respect of the issuance of such certificates, all of which taxes
and
expenses shall be paid by the Company; provided, however, that the Company
shall
not be required to pay any tax which may be payable in respect of any transfer
involved in the registration of any certificates for Conditional Warrant Shares
or Conditional Warrants in a name other than that of the Holder. The Holder
shall be responsible for all other tax liability that may arise as a result
of
holding or transferring this Warrant or receiving Conditional Warrant Shares
upon exercise hereof.
7. Replacement
of Warrant.
If this
Conditional Warrant is mutilated, lost, stolen or destroyed, the Company shall
issue or cause to be issued in exchange and substitution for and upon
cancellation hereof, or in lieu of and substitution for this Conditional
Warrant, a New Conditional Warrant, but only upon receipt of evidence reasonably
satisfactory to the Company of such loss, theft or destruction and customary
and
reasonable indemnity (which shall not include a surety bond), if requested.
Applicants for a New Conditional Warrant under such circumstances shall also
comply with such other reasonable regulations and procedures and shall reimburse
the Company for all other reasonable third-party costs as the Company may
prescribe. If a New Conditional Warrant is requested as a result of a mutilation
of this Conditional Warrant, then the Holder shall deliver such mutilated
Conditional Warrant to the Company as a condition precedent to the Company’s
obligation to issue the New Conditional Warrant.
8. Reservation
of Conditional Warrant Shares.
The
Company covenants that it will at all times reserve and keep available out
of
the aggregate of its authorized but unissued and otherwise unreserved Common
Stock, solely for the purpose of enabling it to issue Conditional Warrant Shares
upon exercise of this Conditional Warrant as herein provided, the number of
Conditional Warrant Shares which are then issuable and deliverable upon the
exercise of this entire Conditional Warrant, free from preemptive rights or
any
other contingent purchase rights of Persons other than the Holder (taking into
account the adjustments and restrictions of Section 9). The Company covenants
that all Conditional Warrant Shares so issuable and deliverable shall, upon
issuance and the payment of the applicable Exercise Price in accordance with
the
terms hereof, be duly and validly authorized, issued and fully paid and
nonassessable.
9. Certain
Adjustments.
The
Exercise Price and number of Conditional Warrant Shares issuable upon exercise
of this Conditional Warrant are subject to adjustment from time to time as
set
forth in this Section 9.
(a) Stock
Dividends and Splits.
If the
Company, at any time while this Warrant is outstanding, (i) pays a stock
dividend on its Common Stock or otherwise makes a distribution on any class
of
capital stock that is payable in shares of Common Stock, (ii) subdivides
outstanding shares of Common Stock into a larger number of shares, or (iii)
combines outstanding shares of Common Stock into a smaller number of shares,
then in each such case the Exercise Price shall be multiplied by a fraction
of
which the numerator shall be the number of shares of Common Stock outstanding
immediately before such event and of which the denominator shall be the number
of shares of Common Stock outstanding immediately after such event. Any
adjustment made pursuant to clause (i) of this paragraph shall become effective
immediately after the record date for the determination of stockholders entitled
to receive such dividend or distribution, and any adjustment pursuant to clause
(ii) or (iii) of this paragraph shall become effective immediately after the
effective date of such subdivision or combination.
(b) Fundamental
Transactions.
If, at
any time while this Conditional Warrant is outstanding there is a Fundamental
Transaction, then the Holder shall have the right thereafter to receive, upon
exercise of this Conditional Warrant, the same amount and kind of securities,
cash or property as it would have been entitled to receive upon the occurrence
of such Fundamental Transaction if it had been, immediately prior to such
Fundamental Transaction, the holder of the number of Conditional Warrant Shares
then issuable upon exercise in full of this Conditional Warrant (the
"Alternate
Consideration").
For
purposes of any such exercise, the determination of the Exercise Price shall
be
appropriately adjusted to apply to such Alternate Consideration based on the
amount of Alternate Consideration issuable in respect of one share of Common
Stock in such Fundamental Transaction, and the Company shall apportion the
Exercise Price among the Alternate Consideration in a reasonable manner
reflecting the relative value of any different components of the Alternate
Consideration. If holders of Common Stock are given any choice as to the
securities, cash or property to be received in a Fundamental Transaction, then
the Holder shall be given the same choice as to the Alternate Consideration
it
receives upon any exercise of this Conditional Warrant following such
Fundamental Transaction. The terms of any agreement pursuant to which a
Fundamental Transaction is effected shall include terms requiring any such
successor or surviving entity to comply with the provisions of this paragraph
(b) and insuring that the Conditional Warrant (or any such replacement security)
will be similarly adjusted upon any subsequent transaction analogous to a
Fundamental Transaction.
(c) General
Protection.
The
Company will not, by amendment of its Certificate of Incorporation or through
any reorganization, recapitalization, transfer of assets, consolidation, merger,
dissolution, issue or sale of securities or any other action, avoid or seek
to
avoid the observance or performance of any of the terms to be observed or
performed hereunder, or impair the economic interest of the Holder, but will
at
all times in good faith assist in the carrying out of all the provisions hereof
and in taking of all such actions and making all such adjustments as may be
necessary or appropriate in order to protect the rights and the economic
interests of the Holder against impairment.
(d) Number
of Conditional Warrant Shares.
Simultaneously with any adjustment to the Exercise Price pursuant to this
Section 9, the number of Conditional Warrant Shares that may be purchased upon
exercise of this Conditional Warrant shall be increased or decreased
proportionately, so that after such adjustment the aggregate Exercise Price
payable hereunder for the adjusted number of Conditional Warrant Shares shall
be
the same as the aggregate Exercise Price in effect immediately prior to such
(e) Calculations.
All
calculations under this Section 9 shall be made to the nearest cent or the
nearest 1/100th
of a
share, as applicable. The number of shares of Common Stock outstanding at any
given time shall not include shares owned or held by or for the account of
the
Company, and the disposition of any such shares shall be considered an issue
or
sale of Common Stock.
(f) Notice
of Adjustments.
Upon
the occurrence of each adjustment pursuant to this Section 9, the Company at
its
expense will promptly compute such adjustment in accordance with the terms
of
this Conditional Warrant and prepare a certificate setting forth such
adjustment, including a statement of the adjusted Exercise Price and adjusted
number or type of Conditional Warrant Shares or other securities issuable upon
exercise of this Conditional Warrant (as applicable), describing the
transactions giving rise to such adjustments and showing in detail the facts
upon which such adjustment is based, and the method by which such adjustment
was
calculated. Upon the occurrence of each adjustment, the Company will promptly
deliver a copy of each such certificate to the Holder and to the Company's
Transfer Agent.
(g) Notice
of Corporate Events.
If the
Company (i) declares a dividend or any other distribution of cash, securities
or
other property in respect of its Common Stock, including without limitation
any
granting of rights or warrants to subscribe for or purchase any capital stock
of
the Company or any Subsidiary, (ii) authorizes or approves, enters into any
agreement contemplating or solicits stockholder approval for any Fundamental
Transaction or (iii) authorizes the voluntary dissolution, liquidation or
winding up of the affairs of the Company, then the Company shall deliver to
the
Holder a notice describing the material terms and conditions of such transaction
(but only to the extent such disclosure would not result in the dissemination
of
material, non-public information to the Holder) at least 10 calendar days prior
to the applicable record or effective date on which a Person would need to
hold
Common Stock in order to participate in or vote with respect to such
transaction, and the Company will take all steps reasonably necessary in order
to insure that the Holder is given the practical opportunity to exercise this
Conditional Warrant prior to such time so as to participate in or vote with
respect to such transaction; provided, however, that the failure to deliver
such
notice or any defect therein shall not affect the validity of the corporate
action required to be described in such notice.
10. Payment
of Exercise Price.
The
Holder may pay the Exercise Price in one of the following manners:
(a) Cash
Exercise.
The
Holder may deliver immediately available funds; or
(b) Cashless
Exercise.
The
Holder may notify the Company in an Exercise Notice of its election to utilize
cashless exercise, in which event the Company shall issue to the Holder the
number of Conditional Warrant Shares determined as follows:
X
= Y
[(A-B)/A]
where:
X
= the
number of Conditional Warrant Shares to be issued to the Holder.
Y
= the
number of Conditional Warrant Shares with respect to which this Warrant is
being
exercised.
A
= the
average of the closing prices for the five Trading Days immediately prior to
(but not including) the Date of Exercise.
B
= the
Exercise Price.
For
purposes of Rule 144 promulgated under the Securities Act, it is intended,
understood and acknowledged that the Conditional Warrant Shares issued in a
cashless exercise transaction shall be deemed to have been acquired by the
Holder, and the holding period for the Conditional Warrant Shares shall be
deemed to have commenced, on the date this Warrant was originally
issued.
11. No
Fractional Shares.
No
fractional shares of Conditional Warrant Shares will be issued in connection
with any exercise of this Conditional Warrant. In lieu of any fractional shares
which would, otherwise be issuable, the Company shall pay cash equal to the
product of such fraction multiplied by the closing price of one Conditional
Warrant Share as reported by the applicable Trading Market on the date of
exercise.
12. Notices.
(a) All
notices and other communications made pursuant to this Conditional Warrant
shall
be in writing and shall be conclusively deemed to have been duly given:
(i) in
the
case of hand delivery to the address set forth below, on the next Business
Day
after delivery;
(ii) in
the
case of delivery by an internationally recognized overnight courier to the
address set forth below, freight prepaid, on the next Business Day after
delivery and signed receipt by the recipient; and
(iii) in
the
case of a notice sent by facsimile transmission to the number and addressed
as
set forth below, on the next Business Day after delivery, if receipt of such
facsimile transmission is confirmed.
(b) For
all
notices given pursuant to one of the methods listed in sub-clause (a) above,
a
copy of the notice should also be sent by email to the email address set forth
below.
(c) Contact
details:
If
to Holder:
Address
for notices being delivered by hand/courier:
c/o
Inventages Whealth Management Inc.
Winterbotham
Place, Marlborough & Queen Streets
P.
O. Box
N-3026
Nassau,
The Bahamas, Attn: Xx. Xxxxxx Xxxxxxx
Always
with a copy to: IVC SA, Route de Coppet 26A, 1291 - Commugny, Switzerland,
Attn:
Xx. Xxxxxx xxx Xxxxxxxxx
Always
with a copy to: xxxxxxx@xxxxxxxxxx.xxx
and
xxxxxxxxx@xxxxxxxxxx.xxx
Number
for notices being delivered by facsimile transmission:
To:
IVC
SA, Attn: Xx. Xxxxxx xxx Xxxxxxxxx, at: x00 00 000 0000
Always
with a copy to: xxxxxxx@xxxxxxxxxx.xxx
and
xxxxxxxxx@xxxxxxxxxx.xxx
If
to the
Company:
Address
for notices being delivered by hand/courier:
Organic
To Go Food Corporation
0000
Xxxxx Xxxxxx Xxxxx
Seattle,
Washington 98134
Attn:
Chief Financial Officer
Number
for notices being delivered by facsimile transmission:
To:
Organic To Go Food Corporation, Attn: Chief Financial Officer, at: x0
000
000
0000
(d) A
party
may change or supplement the contact details for service of any notice pursuant
to this Conditional Warrant, or designate additional addresses, facsimile
numbers and email addresses for the purposes of this Section 12, by giving
the
other parties written notice of the new contact details in the manner set forth
above.
13. Warrant
Agent.
The
Company shall serve as warrant agent under this Conditional Warrant. Upon 10
days' notice to the Holder, the Company may appoint a new warrant agent. Any
corporation into which the Company or any new warrant agent may be merged or
any
corporation resulting from any consolidation to which the Company or any new
warrant agent shall be a party or any corporation to which the Company or any
new warrant agent transfers substantially all of its corporate trust or
shareholders services business shall be a successor warrant agent under this
Conditional Warrant without any further act. Any such successor warrant agent
shall promptly cause notice of its succession as warrant agent to be mailed
(by
first class mail, postage prepaid) to the Holder at the Holder's last address
as
shown on the Warrant Register.
14. Miscellaneous.
(a) This
Conditional Warrant shall be binding on and inure to the benefit of the parties
hereto and their respective successors and assigns. Subject to the preceding
sentence, nothing in this Conditional Warrant shall be construed to give to
any
Person other than the Company and the Holder any legal or equitable right,
remedy or cause of action under this Conditional Warrant. This Conditional
Warrant may be amended only in writing signed by the Company and the Holder
and
their successors and assigns.
(b) All
questions concerning the construction, validity, enforcement and interpretation
of this Conditional Warrant shall be governed by and construed and enforced
in
accordance with the internal laws of the State of California, without regard
to
the principles of conflicts of law thereof.
(c) Each
party agrees that any dispute, controversy, or claim arising in relation to
this
Conditional Warrant, including with regard to its validity, invalidity, breach,
enforcement or termination, shall be resolved by binding arbitration in London,
England, in accordance with the rules of arbitration which are in force in
the
United Kingdom on the date when the notice of arbitration is submitted. The
arbitrability of such dispute, claim or controversy shall also be determined
in
such arbitration. Such arbitration proceeding shall be conducted in the English
language before one (1) arbitrator agreed to by the parties. Both the foregoing
agreement of the parties to arbitrate any and all such disputes, claims and
controversies, and the results, determinations, findings, judgments and/or
awards rendered through any such arbitration shall be final and binding on
the
parties hereto and may be specifically enforced by legal
proceedings.
(d) The
headings herein are for convenience only, do not constitute a part of this
Conditional Warrant and shall not be deemed to limit or affect any of the
provisions hereof.
(e) In
case
any one or more of the provisions of this Conditional Warrant shall be invalid
or unenforceable in any respect, the validity and enforceability of the
remaining terms and provisions of this Conditional Warrant shall not in any
way
be affected or impaired thereby and the parties will attempt in good faith
to
agree upon a valid and enforceable provision which shall be a commercially
reasonable substitute therefor, and upon so agreeing, shall incorporate such
substitute provision in this Warrant.
(f) Prior
to
exercise of this Conditional Warrant, the Holder hereof shall not, by reason
of
being a Holder, be entitled to any rights of a stockholder with respect to
the
Conditional Warrant Shares.
[REMAINDER
OF XXXX INTENTIONALLY LEFT BLANK,
SIGNATURE
PAGE FOLLOWS]
IN
WITNESS WHEREOF, the Company has caused this Conditional Warrant to be duly
executed by its authorized officer as of the date first indicated
above.
| ORGANIC TO GO FOOD CORPORATION | ||
| |
|
|
| By: | ||
|
Name: Xxxxx Xxxxx |
||
| Title: Chairman and Chief Executive Officer | ||
Signature
Page to Conditional Warrant
EXERCISE
NOTICE
ORGANIC
TO GO FOOD CORPORATION
CONDITIONAL
WARRANT DATED FEBRUARY [ ], 2008
The
undersigned Holder hereby irrevocably elects to purchase _____________ shares
of
Common Stock pursuant to the above referenced Conditional Warrant. Capitalized
terms used herein and not otherwise defined have the respective meanings set
forth in the Conditional Warrant.
(1) The
undersigned Holder hereby exercises its right to purchase _________________
Conditional Warrant Shares pursuant to the Conditional Warrant.
(2) The
Holder intends that payment of the Exercise Price shall be made as (check
one):
____ “Cash
Exercise” under Section 10
____
“Cashless Exercise” under Section 10
(3) If
the
holder has elected a Cash Exercise, the holder shall pay the sum of
$____________ to the Company in accordance with the terms of the Conditional
Warrant.
(4) Pursuant
to this Exercise Notice, the Company shall deliver to the holder _______________
Conditional Warrant Shares in accordance with the terms of the Conditional
Warrant.
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Dated:
_________,
____
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Name
of Xxxxxx:
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(Print)
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By:
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Name:
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Title:
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(Signature
must conform in all respects to name of holder as specified on the
face of
the Warrant)
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Conditional
Warrant Shares Exercise Log
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Date
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Number
of Conditional Warrant Shares Available to be Exercised
|
Number
of Conditional Warrant Shares Exercised
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Number
of Conditional Warrant Shares Remaining to be
Exercised
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ORGANIC
TO GO FOOD CORPORATION
CONDITIONAL
WARRANT ORIGINALLY ISSUED FEBRUARY
[ ], 2008
CONDITIONAL
WARRANT NO. [ ]
FORM
OF
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________ the right represented by the above-captioned
Conditional Warrant to purchase ____________ shares of Common Stock to which
such Conditional Warrant relates and appoints ________________ attorney to
transfer said right on the books of the Company with full power of substitution
in the premises.
Dated: _______________,
____
| ______________________________________________ | ||
| (Signature must conform in all respects to name of holder as specified on the face of the Warrant) | ||
| _______________________________________________ | ||
| Address of Transferee | ||
| _______________________________________________ | ||
| _______________________________________________ | ||
In
the
presence of:
__________________________
