AMENDMENT TO THE NOTES
AMENDMENT TO THE
NOTES
This
Amendment to the Notes (this “Amendment”) is entered into this __ day of
February, 2009, between Organic To Go Food Corporation, a Delaware corporation
(the “Company”), and
X.Xxxxxx L.P., a limited partnership organized under the laws of the Bahamas
(the “Investor”).
Reference
is hereby made to (i) that certain Convertible Promissory Note in the amount of
$5,000,000, dated June 17, 2008, that certain Convertible Promissory Note in the
amount of $2,000,000, dated September 5, 2008, and that certain Convertible
Promissory Note in the amount of $3,000,000, dated October 3, 2008 (each a
“Note” and
collectively, the “Notes”), each issued
to the Investor pursuant to that certain Note and Warrant Purchase Agreement
dated as of June 1, 2008; and (ii) the Note Purchase Agreement by and between
the Company and the Investor dated as of February 11, 2009 (the “Purchase
Agreement”). Capitalized terms used herein but not defined
shall have the meanings attributed thereto in the Purchase
Agreement.
WHEREAS,
as a condition to the Closing under the Purchase Agreement, the Company and the
Investor have agreed to amend the Notes as set forth below.
NOW, THEREFORE, for the promises set
forth herein, and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties agree as
follows:
1.
Amendment
of Notes
Effective
upon the Closing under the Purchase Agreement, each Note is hereby amended to
add a new paragraph 2(h) as follows:
Upon
the closing of the transactions contemplated by that certain Note Purchase
Agreement by and between the Company and the Investor dated as of February 11,
2009 (the “Purchase
Agreement”), the principal balance of this Note shall automatically
convert into shares of Common Stock pursuant to the formula detailed in Section
2(c)(ii) (where “B” equals the average closing price of the Common Stock of the
Company during the ten (10) Trading Days ending three (3) days before the date
of the Purchase Agreement).
2. Conversion
of Notes
(a)
Pursuant to Section 1 above, at the Closing of the Purchase Agreement, the
Convertible Promissory Note in the amount of $5,000,000, dated as of June 17,
2008, shall be converted into 66,326,531 shares of Common Stock.
(c)
Pursuant to Section 1 above, at the Closing of the Purchase Agreement, the
Convertible Promissory Note in the amount of $2,000,000, dated as of September
5, 2008, shall be converted into 26,530,612 shares of Common Stock.
(d)
Pursuant to Section 1 above, at the Closing of the Purchase Agreement, the
Convertible Promissory Note in the amount of $3,000,000, dated as of October 3,
2008, shall be converted into 39,795,918 shares of Common Stock.
3.
Miscellaneous
(a) Entire Agreement and
Amendments. This Amendment constitutes the entire agreement of
the parties with respect to the subject matter hereof and neither this Amendment
nor any provision hereof may be waived, modified, amended or terminated except
by a written agreement signed by the Company and the Investor. To the
extent any term or other provision of any other agreement or instrument by which
any party hereto is bound conflicts with this Amendment, this Amendment shall
have precedence over such conflicting term or provision.
(b) Governing
Law. This Amendment and the rights and obligations of the
parties hereunder shall be construed in accordance with and governed by the laws
of the State of New York, without giving effect to the conflict of law
principles thereof.
(c) Counterparts. This
Amendment may be executed in any number of counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same
instrument.
[Signature Page Immediately
Follows]
2
IN
WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly
executed by their respective authorized signatories as of the date first
indicated above.
ORGANIC TO GO FOOD CORPORATION | |||
By:
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Name:
Xxxxx Xxxxx
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Title:
Chairman and Chief Executive Officer
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X.XXXXXX
L.P.
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By:
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Xx.
Xxxxxx Xxxxxxx
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Director, Inventages Whealth Management, Inc., as General Partner of X.Xxxxxx L.P. | |||
By:
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Dr. Xx. Xxxxxxxx Xxxxxxxxxxxxx | |||
Director, Inventages Whealth Management, Inc., as General Partner of X.Xxxxxx L.P. | |||