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EXHIBIT
10.4
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
WARRANT
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Warrant
No. [ ]
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Original
Issue Date: [ ]
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Organic
To Go Food Corporation, a Delaware corporation (the
"Company" ),
hereby certifies that, for value received, W.Health 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 up to a total of [ ]
shares of Common Stock (each such share, a
"Warrant Share" and
all such shares, the
"Warrant Shares" ),
at any time and from time to time from and after the Original Issue
Date and through and including five years following the Original
Issue Date (the
"Expiration Date" ),
and subject to the following terms and conditions:
1.
Definitions .
As used in this 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 Warrant that are
defined in the Note and Warrant Purchase Agreement (as defined
below) shall have the respective definitions set forth in the Note
and Warrant Purchase Agreement.
"Business Day" means
any day except Saturday, Sunday and any day that is a federal legal
holiday in the United States or in Switzerland, 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 Price" means
$3.00, subject to adjustment in accordance with Section
9.
"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.
"Note and Warrant Purchase Agreement" means
the Note and Warrant Purchase Agreement, dated June 1, 2008, to
which the Company and the original 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 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 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
Warrant in the Warrant Register, upon surrender of this 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 Warrant to purchase Common
Stock, in substantially the form of this Warrant (any such new
Warrant, a
"New Warrant" ),
evidencing the portion of this Warrant so transferred shall be
issued to the transferee and a New Warrant evidencing the remaining
portion of this Warrant not so transferred, if any, shall be issued
to the transferring Holder. The acceptance of the New 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
Warrant.
4.
Exercise and Duration of Warrants .
This Warrant shall be exercisable by the registered Holder, in
whole or in part, at any time and from time to time on or after the
Original Issue Date through and including the Expiration Date. At
6:30 p.m., New York City time on the
Expiration
Date, the portion of this 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 Warrant without the prior
written consent of the affected Holder.
5.
Delivery of Warrant Shares .
(a)
To
effect exercises hereunder, the Holder shall not be required
to physically surrender this Warrant unless the aggregate
Warrant Shares represented by this Warrant is being exercised.
Upon delivery of the Exercise Notice (in the form attached
hereto) to the Company (with the attached Warrant Shares
Exercise Log) at its address for notice set forth herein and
upon payment of the Exercise Price multiplied by the number of
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 Warrant
Shares issuable upon such exercise, which, unless otherwise
required by the Note and Warrant 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 Warrant Shares has been declared effective by the
Securities and Exchange Commission, use its reasonable best
efforts to deliver 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 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 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 Warrant, payment of the Exercise Price for the
number of 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 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 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 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 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
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 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 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 Warrant Shares. Nothing herein
shall limit a Holder'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 Warrant Shares upon
exercise of the Warrant as required pursuant to the terms
hereof.
6.
Charges, Taxes and Expenses .
Issuance and delivery of Warrant Shares upon exercise of this
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 Warrant Shares
or 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
Warrant Shares upon exercise hereof.
7.
Replacement of Warrant .
If this 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 Warrant, a New Warrant, but only upon receipt
of evidence reasonably satisfactory to the Company of such loss,
theft or destruction and c
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