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
SECURED
CONVERTIBLE PROMISSORY NOTE
|
$5,000,000.00
|
February
__, 2009
|
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 Five Million Dollars ($5,000,000.00) (the “
Principal Amount ”), together with interest from the
date hereof on the Principal Amount at the rate of fifteen percent
(15%) per annum, compounded quarterly and accruing daily, on or
prior to March 17, 2010 (the “ Maturity Date ”)
in accordance with the terms hereof. Any payments under
this Note shall be applied first to the accrued, unpaid interest
and then to the Principal Amount. This Note is issued
pursuant to the Note Purchase Agreement, dated as of February 11,
2009 (as amended, modified or supplemented, the “ Note
Purchase Agreement ”) between the Company and the
Investor (as defined in the Note Purchase Agreement).
Capitalized
terms not otherwise defined herein shall have the meaning set forth
in the Note 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:
(a)
The
Investor may, at its discretion any time prior to the Maturity
Date, convert the Principal Amount, in whole or in part, plus any
accrued, unpaid interest due under this Note (together, the “
Converted Amount ”) into Common Stock of the Company
at a conversion price of $0.14 , such that upon conversion
of the Converted Amount, the Investor shall receive the number of
shares of Common Stock equal to the quotient of (i) the Converted
Amount, divided by, (ii) $0.14. Before the Investor
shall be entitled to convert this Note, in whole or in part, into
shares of Common Stock hereunder, the Investor shall surrender this
Note, duly endorsed, at the office of the Company (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), and shall give written notice to the
Company at its principal corporate office, of the election to
convert the same pursuant to this section, and shall state the
Converted Amount and 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
the Investor (i) a certificate for the number of shares of Common
Stock to which the Investor shall be entitled upon conversion of
the Converted Amount (bearing such legends as are required by
t
