CONVERTIBLE PROMISSORY NOTEConvertible Promissory Note |
|
|
You are currently viewing: This Convertible Promissory Note involves
GO FOOD CORPORATION. RealDealDocs™ contains millions of easily searchable legal documents and clauses from top law firms. Search for free - click here. |
|
|
|
Search Convertible Promissory Note by:
THIS NOTE AND THE SECURITIES ISSUABLE UPON THE CONVERSION HEREOF HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND MAY NOT BE SOLD, TRANSFERRED, ASSIGNED, PLEDGED OR HYPOTHECATED EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF REGULATION S PROMULGATED UNDER THE SECURITIES ACT, PURSUANT TO REGISTRATION UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM REGISTRATION. HEDGING TRANSACTIONS INVOLVING THE SECURITIES REPRESENTED HEREBY MAY NOT BE CONDUCTED UNLESS IN COMPLIANCE WITH THE SECURITIES ACT. THIS NOTE MUST BE SURRENDERED TO THE COMPANY OR ITS TRANSFER AGENT AS A CONDITION PRECEDENT TO THE SALE, PLEDGE, HYPOTHECATION OR ANY OTHER TRANSFER OF ANY INTEREST IN ANY OF THE SECURITIES REPRESENTED BY THIS NOTE.
ORGANIC TO GO FOOD CORPORATION
CONVERTIBLE PROMISSORY NOTE
|
$3,000,000.00 |
October 3, 2008 |
|
|
Seattle, Washington |
FOR VALUE RECEIVED, Organic To Go Food Corporation, a Delaware corporation (the “ Company ”) promises to pay to W.Health L.P., a limited partnership organized under the laws of the Bahamas (“ Investor ”), or its registered assigns, in lawful money of the United States of America the principal sum of Three Million Dollars ($3,000,000.00), payable in shares of common stock, par value $0.001 (“ Common Stock ”), of the Company on March 17, 2010 (the “ Maturity Date ”) in accordance with the terms hereof. This Note is one of the “Notes” issued pursuant to the Note and Warrant Purchase Agreement, dated as of June 1, 2008 (as amended, modified or supplemented, the “ Note and Warrant Purchase Agreement ”) between the Company and the Investor (as defined in the Note and Warrant Purchase Agreement).
Capitalized terms not otherwise defined herein shall have the meaning set forth in the Note and Warrant Purchase Agreement.
The following is a statement of the rights of Investor and the conditions to which this Note is subject, and to which Investor, by the acceptance of this Note, agrees:
1. Definitions . As used in this Note, the following capitalized terms have the following meanings:
(a) “Adjusted Closing Price” has the meaning given in Section 2(c)(ii).
(b) “Base Amount” has the meaning given in Section 2(c)(i).
(c) “Change in Control” shall mean: (1) the consummation of the sale, transfer, conveyance or other disposition (including any merger, reorganization or consolidation) in one or a series of related transactions of the voting equity securities of the Company or a similar transaction (or transactions) such that immediately following such transaction (or transactions) any “person” or related “group” of “persons” (as such terms are used in Sections 13(d) and 14(d)(2) of the Exchange Act) (other than the Company or an Affiliate of the Company) beneficially owns more than fifty percent (50%) of the total voting equity securities of the Company outstanding immediately after such transaction; (2) the sale or transfer of all or substantially all of the assets of the Company to another entity which is not an Affiliate of the Company; or (3) the consummation of a merger or consolidation of the Company with any other entity that is not an Affiliate of the Company, other than a merger or consolidation which would result in the voting securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity or its parent) at least fifty percent (50%) of the total voting power of the voting securities of the Company or such surviving entity or its parent outstanding immediately after such merger or consolidation.
(d) “Pre-Sale Trading Price” has the meaning given in Section 2(f)(iii)
(e) “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. Conversion .
(a) Automatic Conversion. The outstanding principal amount of this Note shall automatically convert into shares of Common Stock upon the earliest to occur of the following:
(i) the Maturity Date; or
(ii) subject to Section 2(f) below, the date upon which the closing price of the Common Stock on the Trading Market it is listed or quoted on is and has been $3.00 per share (subject to adjustments in accordance with Section 3 ) or more on each Trading Day during a period of 60 consecutive calendar days preceding such date.
Upon such conversion of this Note, the Investor hereby agrees to deliver the original of this Note (or a notice to the effect that the original Note has been lost, stolen or destroyed and an agreement acceptable to the Company whereby the holder agrees to indemnify the Company from any loss incurred by it in connection with this Note) for cancellation; provided, however , that upon satisfaction of the conditions set forth in this Section 2(a) , this Note shall be deemed converted and of no further force and effect, whether or not it is delivered for cancellation as set forth in this sentence.
-2-
(b) Optional Conversion. Subject to Sections 2(d) and 2(e) below, if this Note has not been converted pursuant to Section 2(a) , then all, but not less than all, of the outstanding principal amount of this Note shall be convertible into shares of Common Stock at the option of the Investor any time before the Maturity Date. Before the Investor shall be entitled to convert this Note into shares of Common Stock under this Section 2(b) , the Investor shall surrender this Note, duly endorsed, at the office of the Company and shall give written notice to the Company at its principal corporate office, of the election to convert the same pursuant to this Section 2(b) , and shall state the name in which the certificate for shares of Common Stock are to be issued. The Company shall, as soon as practicable thereafter, issue and deliver at such office to Investor a certificate for the number of shares of Common Stock to which Investor shall be entitled upon conversion (bearing such lege
