Exhibit 4.2


 


COMMON STOCK PURCHASE WARRANT


 


TO PURCHASE 142,000 SHARES OF COMMON
STOCK OF


 


ORANGE 21 INC.


 


UNDER
NASD RULE 2710(g) AND SUBJECT TO LIMITED EXCEPTIONS, THIS WARRANT AND THE
UNDERLYING SHARES OF COMMON STOCK SHALL NOT BE SOLD DURING THE INITIAL
PUBLIC OFFERING OF THE COMPANY’S COMMON STOCK (THE “PUBLIC OFFERING”) OR SOLD,
TRANSFERRED, ASSIGNED, PLEDGED, OR HYPOTHECATED, OR BE THE SUBJECT OF ANY
HEDGING, SHORT SALE, DERIVATIVE, PUT, OR CALL TRANSACTION THAT WOULD RESULT IN
THE EFFECTIVE ECONOMIC DISPOSITION OF THIS WARRANT OR THE SECURITIES UNDERLYING
THIS WARRANT BY ANY PERSON FOR A PERIOD OF 180 DAYS IMMEDIATELY FOLLOWING THE
DATE OF EFFECTIVENESS OR COMMENCEMENT OF SALES OF THE PUBLIC OFFERING.


 


THIS COMMON STOCK PURCHASE WARRANT certifies that, for
value received, Roth Capital Partners, LLC (the “Holder”) is entitled,
upon the terms and subject to the limitations on exercise and the conditions
hereinafter set forth, at any time on or after May 13, 2005 (the “Initial
Exercise Date”) and on or prior to the close of business on May 12, 2010
(the “Termination Date”) but not thereafter, to subscribe for and
purchase from Orange 21 Inc., a corporation incorporated in the State of
Delaware (the “Company”), up to 142,000 shares of Common Stock, par value
$0.0001, of the Company (the “Common Stock”).  The purchase price of one share of Common
Stock (the “Exercise Price”) under this Warrant shall be $10.50, subject to adjustment hereunder.  “Warrant” as used herein shall include
this common stock purchase warrant and any warrants delivered in substitution
or exchange therefor as provided herein.


 


1.                                       Title
to Warrant.  Prior to the Termination
Date and subject to the transfer restrictions imposed by NASD Rule 2710(g) as
set forth in the above legend, this Warrant and all rights hereunder are
transferable, in whole or in part, at the office or agency of the Company by
the Holder in person or by duly authorized attorney, upon surrender of this
Warrant together with the Assignment Form annexed hereto properly endorsed.


 


2.                                       Authorization
of Shares.  The Company covenants
that all shares of Common Stock (or other securities to which Holder is
entitled pursuant to Section 11 or Section 12 hereof)
which may be issued upon the exercise of the purchase rights represented by
this Warrant (the “Warrant Shares”) will, upon exercise of the purchase
rights represented by this Warrant, be duly authorized, validly issued, fully
paid and nonassessable and free from all taxes, liens and charges in respect of
the issue thereof (other than taxes in respect of any transfer occurring
contemporaneously with such issue).


 


3.                                       Exercise
of Warrant.


 


(a)                                  Except
as provided in Section 4 herein, the purchase rights represented by
this Warrant may be exercised in whole or in part, at any time, or from time to
time, on or after the Initial Exercise Date and on or before the Termination
Date by delivering this Warrant and the Notice of Exercise Form annexed
hereto duly executed to the office of the Company (or such other office or
agency of the Company as it may designate by notice in writing to the
registered


 


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Holder at the address of
such Holder appearing on the books of the Company) and by payment of the
Exercise Price of the shares thereby purchased by wire transfer, cash or check
or by means of a “cashless exercise” pursuant to Section 3(c).  Warrant Shares purchased hereunder shall be
delivered to the Holder within three (3) business days after the date on
which this Warrant shall have been exercised as aforesaid.  This Warrant shall be deemed to have been
exercised and such certificate or certificates shall be deemed to have been
issued, and the Holder or any other person so designated to be named therein
shall be deemed to have become a holder of record of such shares for all
purposes, as of the date the Warrant has been exercised by payment to the
Company of the Exercise Price.  If
eligible, the Warrant Shares shall be delivered by the Company to the Holder
via the Depository Trust Company’s (“DTC”) Deposit Withdrawal Agent
Commission (“DWAC”) system via the DTC instructions provided to the
Company in the Notice of Exercise.  If
the Company fails to deliver the Warrant Shares to the Holder pursuant to this Section 3(a) by
the close of business on the third (3rd) business day after the date
of exercise, then the Holder will have the right to rescind such exercise.  In addition to any other rights available to
the Holder, if the Company fails to deliver to the Holder a certificate or
certificates representing the Warrant Shares pursuant to an exercise by the
close of business on the third (3rd) business day after the date of
exercise, and if after such third (3rd) business day the Holder is
required by its broker to purchase (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 (i) pay in cash to the Holder the
amount by which (A) the Holder’s total purchase price (including brokerage
commissions, if any) for the shares of Common Stock so purchased exceeds (B) the
amount obtained by multiplying (x) the number of Warrant Shares that the
Company was required to deliver to the Holder in connection with the exercise
at issue times (y) the price at which the sell order giving rise to such
purchase obligation was executed, and (ii) 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.  For example, under clause (i) of the
immediately preceding sentence, if the Holder purchases Common Stock having a
total purchase price of $11,000 to cover a Buy-In with respect to an attempted
exercise of shares of Common Stock with an aggregate sale price giving rise to such
purchase obligation of $10,000, the Company shall be required to pay the Holder
$1,000.  The Holder shall provide the
Company written notice indicating the amounts payable to the Holder in respect
of the Buy-In, together with applicable confirmations and other evidence
reasonably requested by the Company. 
Nothing herein shall limit 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 shares of Common
Stock upon exercise of the Warrant as required pursuant to the terms hereof.


 


(b)                                 If
this Warrant shall have been exercised in part, the Company shall, at the time
of delivery of the certificate or certificates representing Warrant Shares,
deliver to Holder a new Warrant evidencing the rights of Holder to purchase the
unpurchased Warrant Shares called for by this Warrant, which new Warrant shall
in all other respects be identical with this Warrant.


 


(c)                                  If,
at any time after the Initial Exercise Date, the VWAP of the Common Stock (as
defined below) is greater than the Exercise Price as of such date, this Warrant
may also be exercised by means of a “cashless exercise” in which the Holder
shall be entitled to receive a certificate for the number of Warrant Shares
equal to the quotient obtained by dividing [(A-B) (X)] by (A), where:


 


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(A) = the VWAP on the trading day preceding the
date of such election;


 


(B) =  the
Exercise Price of the Warrant, as adjusted; and


 


(X) = the number of Warrant Shares issuable upon
exercise of the Warrants in accordance with the terms of this Warrant.


 


“VWAP”
means, for any date, the price determined by the first of the following clauses
that applies: (a) the daily volume weighted average price of the Common
Stock for such date (or the nearest preceding date) on the primary market or
exchange on which the Common Stock is then listed or quoted as reported by
Bloomberg Financial L.P. (based on a trading day from 9:30 a.m. Eastern
Time to 4:02 p.m. Eastern Time); (b) if the Common Stock is not then
listed or quoted on a market or exchange and if prices for the Common Stock are
then quoted on the OTC Bulletin Board, the volume weighted average price of the
Common Stock for such date (or the nearest preceding date) on the OTC Bulletin
Board; (c)  if the Common Stock is not then listed or quoted on the OTC
Bulletin Board and if prices for the Common Stock are then reported in the “Pink
Sheets” published by the National Quotation Bureau Incorporated (or a similar
organization or agency succeeding to its functions of reporting prices), the
average of the most recent bid and ask price per share of the Common Stock so
reported; or (d) in all other cases, the fair market value of a share of
Common Stock as determined by an independent appraiser selected in good faith
by Holder.


 


4.                                       No
Fractional Shares or Scrip.  No
fractional shares or scrip representing fractional shares shall be issued upon
the exercise of this Warrant.  As to any
fraction of a share which Holder would otherwise be entitled to purchase upon
such exercise, the Company shall pay a cash adjustment in respect of such final
fraction in an amount equal to such fraction multiplied by the Exercise Price.


 


5.                                       Charges
and Expenses.  Issuance of
certificates for Warrant Shares shall be made without charge to the Holder for
any issue or transfer tax or other incidental expense in respect of the
issuance of such certificate, all of which taxes and expenses shall be paid by
the Company, and such certificates shall be issued in the name of the Holder or
in such name or names as may be directed by the Holder; provided, however, that
in the event certificates for Warrant Shares are to be issued in a name other
than the name of the Holder, this Warrant when surrendered for exercise shall
be accompanied by the Assignment Form attached hereto duly executed by the
Holder.


 


6.                                       Closing
of Books.  The Company will not close
its stockholder books or records in any manner which prevents the timely
exercise of this Warrant, pursuant to the terms hereof.


 


7.                                       Transfer,
Division and Combination.


 


(a)                                  Subject
to the transfer restrictions imposed by NASD Rule 2710(g) as set
forth in the legend hereto, this Warrant and all rights hereunder are
transferable, in whole or in part, upon surrender of this Warrant at the
principal office of the Company, together with a written assignment of this
Warrant substantially in the form attached hereto duly executed by the Holder
or its agent or attorney.  Upon such
surrender, the Company shall execute and deliver a new Warrant or Warrants in
the name of the assignee or assignees and in the denomination or denominations
specified in such instrument of assignment, and shall issue to the assignor a
new Warrant evidencing the portion of this Warrant not so assigned, and this
Warrant shall promptly be cancelled.  A
Warrant, if properly assigned, may be exercised by a new holder for the
purchase of Warrant Shares without having a new Warrant issued.


 


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(b)                                 Subject
to the transfer restrictions imposed by NASD Rule 2710(g) as set
forth in the legend hereto, this Warrant may be divided or combined with other
Warrants upon presentation hereof at the aforesaid office of the Company,
together with a written notice specifying the names and denominations in which
new Warrants are to be issued, signed by the Holder or its agent or attorney.  Subject to compliance with Section 7(a),
as to any transfer which may be involved in such division or combination, the
Company shall execute and deliver a new Warrant or Warrants in exchange for the
Warrant or Warrants to be divided or combined in accordance with such notice.


 


(c)                                  The
Company shall prepare, issue and deliver at its own expense the new Warrant or
Warrants under this Section 7.


 


(d)                                 The
Company agrees to maintain, at its aforesaid office, books for the registration
and the registration of transfer of the Warrants.


 


8.                                       No
Rights as Shareholder until Exercise. 
This Warrant does not entitle the Holder to any voting rights or other
rights as a shareholder of the Company prior to the exercise hereof.  Upon the surrender of this Warrant and the
payment of the aggregate Exercise Price (or by means of a cashless exercise),
the Warrant Shares so purchased shall be and be deemed to be issued to such
Holder as the record owner of such shares as of the close of business on the
later of the date of such surrender or payment.


 


9.                                       Loss,
Theft, Destruction or Mutilation of Warrant.  The Company covenants that upon receipt by
the Company of evidence reasonably satisfactory to it of the loss, theft,
destruction or mutilation of this Warrant or any stock certificate relating to
the Warrant Shares, and in case of loss, theft or destruction, of indemnity or
security reasonably satisfactory to it (which, in the case of the Warrant,
shall not include the posting of any bond), and upon surrender and cancellation
of such Warrant or stock certificate, if mutilated, the Company will make and
deliver a new Warrant or stock certificate of like tenor and dated as of such
cancellation, in lieu of such Warrant or stock certificate.


 


10.                                 Saturdays,
Sundays, Holidays, etc.  If the last
or appointed day for the taking of any action or the expiration of any right
required or granted herein shall be a Saturday, Sunday or a legal holiday on
which banks in the United States are closed, then such action may be taken or
such right may be exercised on the next succeeding day which is not a Saturday,
Sunday or legal holiday.


 


11.                                 Adjustments
of Exercise Price and Number of Warrant Shares; Stock Splits, Etc.  The number and kind of securities purchasable
upon the exercise of this Warrant and the Exercise Price shall be subject to
adjustment from time to time upon the happening of any of the following.  In case the Company shall (a) pay a
dividend in shares of Common Stock or make a distribution in shares of Common
Stock to holders of its outstanding Common Stock, (b) subdivide its
outstanding shares of Common Stock into a greater number of shares, (c) combine
its outstanding shares of Common Stock into a smaller number of shares of
Common Stock, or (d) issue any shares of its capital stock in a reclassification
of the Common Stock, then the number of Warrant Shares purchasable upon
exercise of this Warrant immediately prior thereto shall be adjusted so that
the Holder shall be entitled to receive the kind and number of Warrant Shares
or other securities of the Company which it would have owned or have been
entitled to receive had such Warrant been exercised in advance thereof.  Upon each such adjustment of the kind and
number of Warrant Shares or other securities of the Company which are
purchasable hereunder, the Holder shall thereafter be entitled to purchase the
number of Warrant Shares or other securities resulting from such adjustment at
an Exercise Price per Warrant Share or other security obtained by multiplying
the Exercise Price in effect immediately prior to such adjustment by the number
of Warrant Shares purchasable pursuant hereto immediately prior to such
adjustment and dividing by the


 


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number of Warrant Shares
or other securities of the Company resulting from such adjustment.  An adjustment made pursuant to this paragraph
shall become effective immediately after the effective date of such event
retroactive to the record date, if any, for such event.


 


12.                                 Reorganization,
Reclassification, Merger, Consolidation or Disposition of Assets.  In case the Company shall reorganize its
capital, reclassify its capital stock, consolidate or merge with or into
another entity (where the Company is not the surviving entity or where there is
a change in or distribution with respect to the Common Stock of the Company),
or sell, transfer or otherwise dispose of all or substantially all its
property, assets or business to another entity and, pursuant to the terms of
such reorganization, reclassification, merger, consolidation or disposition of
assets, shares of common stock of the successor or acquiring entity, or any
cash, shares of stock or other securities or property of any nature whatsoever
(including warrants or other subscription or purchase rights) in addition to or
in lieu of common stock of the successor or acquiring entity (“Other
Property”), are to be received by or
distributed to the holders of Common Stock of the Company, then the Holder
shall have the right thereafter to receive, upon exercise of this Warrant,
instead of the shares of Common Stock, the number of shares of common stock
and/or Other Property receivable upon or as a result of such reorganization,
reclassification, merger, consolidation or disposition of assets by Holder of
the number of shares of Common Stock for which this Warrant is exercisable
immediately prior to such event.  In case
of any such reorganization, reclassification, merger, consolidation or
disposition of assets, the successor or acquiring entity (if other than the Company)
shall expressly assume the due and punctual observance and performance of each
and every covenant and condition of this Warrant to be performed and observed
by the Company and all the obligations and liabilities hereunder, subject to
such modifications as may be deemed appropriate (as determined in good faith by
resolution of the Board of Directors of the Company) in order to provide for
adjustments of Warrant Shares for which this Warrant is exercisable which shall
be as nearly equivalent as practicable to the adjustments provided for in this Section 12.  For purposes of this Section 12, “common
stock” of a corporation shall include stock of such corporation of any class
which is not preferred as to dividends or assets over any other class of stock
of such corporation and which is not subject to redemption and shall also
include any evidences of indebtedness, shares of stock or other securities
which are convertible into or exchangeable for any such stock, either
immediately or upon the arrival of a specified date or the happening of a
specified event and any warrants or other rights to subscribe for or purchase
any such stock.  The foregoing provisions
of this Section 12 shall similarly apply to successive
reorganizations, reclassifications, mergers, consolidations or disposition of
assets.


 


13.                                 Voluntary
Adjustment by the Company.  The
Company may at any time during the term of this Warrant reduce the then current
Exercise Price to any amount and for any period of time deemed appropriate by
the Board of Directors of the Company.


 


14.                                 Notice
of Adjustment.  Whenever the number
of Warrant Shares or number or kind of securities or other property purchasable
upon the exercise of this Warrant or the Exercise Price is adjusted, as herein
provided, the Company shall give notice thereof to the Holder, which notice
shall state the number of Warrant Shares (and/or other securities or property)
purchasable upon the exercise of this Warrant and the Exercise Price of such
Warrant Shares (and/or other securities or property) after such adjustment,
setting forth a brief statement of the facts requiring such adjustment and
setting forth the computation by which such adjustment was made.


 


15.                                 Notice
of Corporate Action.  If at any time:


 


(a)                                  the
Company shall take a record of the holders of its Common Stock for the purpose
of entitling them to receive an extraordinary dividend or other distribution,
or any right to subscribe for or purchase any evidences of its indebtedness,
any shares of stock of any class or any other securities or property, or to
receive any other right, or


 


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(b)                                 there
shall be any capital reorganization of the Common Stock, any reclassification
or recapitalization of the capital stock of the Company or any consolidation or
merger of the Company with, or any sale, transfer or other disposition of all
or substantially all the property, assets or business of the Company to,
another entity, or


 


(c)                                  there
shall be a voluntary or involuntary dissolution, liquidation or winding up of
the Company, or


 


(d)                                 the
loss of effectiveness or availability for use of the Registration Statement, as
reasonably determined by the Company;


 


then, in any one or more
of such cases, the Company shall give to Holder (i) at least 10 days’
prior written notice of the date on which a record date shall be selected for
such dividend, distribution or right or for determining rights to vote in
respect of any such reorganization, reclassification, merger, consolidation,
sale, transfer, disposition, liquidation or winding up, and (ii) in the
case of any such reorganization, reclassification, merger, consolidation, sale,
transfer, disposition, dissolution, liquidation or winding up, at least 10 days’
prior written notice of the date when the same shall take place, and (iii) in
the case of the loss of effectiveness or availability for use of the
Registration Statement, promptly upon knowledge by the Company of such
occurrence.  Such notice in accordance
with the foregoing clauses (a)-(c) also shall specify (i) the date on
which any such record is to be taken for the purpose of such dividend,
distribution or right, the date on which the holders of Common Stock shall be
entitled to any such dividend, distribution or right, and the amount and character
thereof, and (ii) the date on which any such reorganization,
reclassification, merger, consolidation, sale, transfer, disposition,
dissolution, liquidation or winding up is to take place and the time, if any
such time is to be fixed, as of which the holders of Common Stock shall be
entitled to exchange their Warrant Shares for securities or other property
deliverable upon such disposition, dissolution, liquidation or winding up.  Such notice in accordance with clause (d) shall
also specify the Company’s good faith believe as to when a registration
statement registering such sale shall be filed or amended or available for use
again.   Each such written notice shall
be sufficiently given if addressed to Holder at the last address of Holder
appearing on the books of the Company and delivered in accordance with Section 18(e).


 


16.                                 Authorized
Shares; No Impairment; Authorizations. 
The Company covenants that during the period the Warrant is outstanding,
it will reserve from its authorized and unissued Common Stock a sufficient
number of shares to provide for the issuance of the Warrant Shares upon the
exercise of any purchase rights under this Warrant.  The Company further covenants that its
issuance of this Warrant shall constitute full authority to its officers who
are charged with the duty of executing stock certificates to execute and issue
the necessary certificates for the Warrant Shares upon the exercise of the
purchase rights under this Warrant.  The
Company will take all such reasonable action as may be necessary to assure that
such Warrant Shares may be issued as provided herein without violation of any
applicable law or regulation, or of any requirements of the principal market or
exchange upon which the Common Stock may be listed.


 


Except and to the extent as waived or consented to by
the Holder, the Company shall not by any action, including, without limitation,
amending its certificate of incorporation or through any reorganization,
transfer of assets, consolidation, merger, dissolution, issue or sale of
securities or any other voluntary action, avoid or seek to avoid the observance
or performance of any of the terms of this Warrant, but will at all times in
good faith assist in the carrying out of all such terms and in the taking of
all such actions as may be necessary or appropriate to protect the rights of
Holder as set forth in this Warrant against impairment.  Without limiting the generality of the
foregoing, the Company will (a) not increase the par value of any Warrant
Shares above the amount payable therefor upon such exercise immediately prior
to such increase in par value, (b) take all such action as may be
necessary or


 


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appropriate in order that
the Company may validly and legally issue fully paid and nonassessable Warrant
Shares upon the exercise of this Warrant, and (c) use commercially
reasonable efforts to obtain all such authorizations, exemptions or consents
from any public regulatory body having jurisdiction thereof as may be necessary
to enable the Company to perform its obligations under this Warrant.


 


Before taking any action which would result in an
adjustment in the number of Warrant Shares for which this Warrant is
exercisable or in the Exercise Price, the Company shall obtain all such
authorizations or exemptions thereof, or consents thereto, as may be necessary
from any public regulatory body or bodies having jurisdiction thereof.


 


17.                                 Registration
Rights.


 


(a)                                  At
any time on or after the Initial Exercise Date, Holder shall have the right to
request that the Company file with the Securities and Exchange Commission a
registration statement covering the resale of the Warrant Shares for an
offering to be made on a continuous basis pursuant to Rule 415 or
registering the sale of the Warrant Shares to the Holder upon exercise of this
Warrant (the “Registration Statement”). 
Upon such request, Company shall file within sixty (60) days of such
request (the “Filing Deadline”) the Registration Statement required
hereunder and shall use its commercially reasonable efforts to effect as soon
as practicable, and in any event within one hundred and twenty (120) days of
the receipt of such request, the registration under the Securities Act of all
of the Warrant Shares.  The Company shall
pay all costs and expenses related to the registration of the Warrant Shares,
other than any discounts or commissions associated with such sale, which shall
be paid by the Holder.  The Company shall
use its commercially reasonable efforts to keep such Registration Statement
continuously effective under the Securities Act of 1933 (the “Securities Act”),
until all Warrant Shares covered by such Registration Statement have been sold
or may be sold without volume restrictions pursuant to Rule 144(k) as
determined by legal counsel reasonably acceptable to Holder pursuant to a
written opinion to such effect addressed and acceptable to the Company’s
transfer agent. Holder shall be entitled to one (1) registration request
pursuant to this Section 17(a).


 


(b)                                 The
Company shall, not less than three (3) business days prior to the filing
of the Registration Statement or any related prospectus or any amendment or
supplement thereto, (i) furnish to Holder copies of the Registration
Statement or prospectus proposed to be filed, which documents will be subject
to the review of such Holder, and (ii) use its commercially reasonable
efforts to cause its officers and directors, counsel and independent certified
public accountants to respond to such inquiries as shall be necessary, in the reasonable
opinion of respective counsel to conduct a reasonable investigation within the
meaning of the Securities Act. 
Furthermore, the Company shall advise Holder, within two (2) business
days: (x) after it shall receive notice or obtain knowledge of the issuance of
any stop order by the SEC delaying or suspending the effectiveness of the
Registration Statement or of the initiation or threat of any proceeding for
that purpose, or any other order issued by any state securities commission or
other regulatory authority suspending the qualification or exemption from
qualification of such Warrant Shares under state securities or “blue sky” laws;
and it will promptly use its commercially reasonable efforts to prevent the
issuance of any stop order or other order or to obtain its withdrawal at the
earliest possible moment if such stop order or other order should be issued;
and (y) when the prospectus or any prospectus supplement or post-effective
amendment has been filed, and, with respect to the Registration Statement or
any post-effective amendment thereto, when the same has become effective.


 


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(c)                                  In
addition, Holder shall be entitled to unlimited “piggyback” registration rights
such that if the Company proposes to register (including for this purpose a
registration effected by the Company for security holders other than Holder)
any of its stock or other securities under the Securities Act in connection
with the public offering of such securities solely for cash (other than a
registration relating solely to the sale of securities to participants in a
Company stock plan, a registration on any form which does not include
substantially the same information as would be required to be included in a
registration statement covering the sale of the Warrant Shares), the Company
shall, at such time, promptly give Holder written notice (the “Company’s
Notice”) of such registration.  Upon
the written request of Holder given within twenty (20) days of the Company’s
Notice, the Company shall cause to be registered under the Act all of the
Warrant Shares that such Holder has requested to be registered.  The piggyback rights set forth in this Section 17(c) shall
expire seven years after the effective date of the Company’s initial public
offering of shares of its Common Stock pursuant to a Registration Statement
filed under the Securities Act.


 


(d)                                 (i)                                     The
Company agrees to indemnify and hold harmless each Selling Stockholder (as
defined below) from and against any losses, claims, damages, liabilities or
expenses to which such Selling Stockholder may become subject (under the
Securities Act or otherwise) insofar as such losses, claims, damages,
liabilities or expenses (or actions or proceedings in respect thereof) arise
out of, or are based upon (A) any untrue statement of a material fact
contained in the Registration Statement or prospectus, (B) any failure by
the Company to fulfill any undertaking included in the Registration Statement, (C) any
breach of any representation, warranty or covenant made by the Company in this
Warrant and (D) any violation or alleged violation of the Securities Act,
the Securities Exchange Act of 1934, as amended (the “Exchange Act”),
any other law, including, without limitation, any state securities law, or any rule or
regulation thereunder relating to the offer or sale of the Warrant Shares (but
excluding claims arising from a failure of the Holder to deliver the prospectus
in compliance with applicable securities laws, where such failure to deliver
was the cause of such claim or would have corrected the alleged damage), and
the Company will promptly reimburse such Selling Stockholder for any reasonable
legal or other expenses incurred in investigating, defending or preparing to
defend, settling, compromising or paying any such action, proceeding or claim,
provided, however, that the Company shall not be liable in any such case to the
extent that such loss, claim, damage, liability or expense arises solely out
of, or is based solely upon, an untrue statement made in such Registration
Statement in reliance upon and in conformity with written information furnished
to the Company by such Selling Stockholder specifically for use in preparation
of the Registration Statement.


 


(ii)                                  The
Holder agrees (severally and not jointly with any other Holder) to indemnify
and hold harmless the Company (and each person, if any, who controls the
Company within the meaning of Section 15 of the Securities Act, each
officer of the Company who signs the Registration Statement and each director
of the Company) from and against any losses, claims, damages, liabilities or
expenses to which the Company (or any such officer, director or controlling
person) may become subject (under the Securities Act or otherwise), insofar as
such losses, claims, damages, liabilities or expenses (or actions or
proceedings in respect thereof) arise solely out of, or are based solely upon, (A) any
untrue statement of a material fact contained in the Registration Statement,
but only if and to the extent that such untrue statement was made in reliance
upon and in conformity with written information furnished by the Holder
specifically for use in preparation of the Registration Statement (provided,
however, that the Holder shall not be liable in any such case for any untrue
statement in any Registration Statement or prospectus if such statement has
been corrected in writing by such Holder and delivered to the Company at least
three business days prior to the pertinent sale or sales by the


 


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Holder) or (B) any violation or alleged violation
of the Securities Act, the Exchange Act, any other law, including, without
limitation, any state securities law, or any rule or regulation thereunder
relating to the offer or sale of the Warrant Shares by Holder, and the Holder
will reimburse the Company (or such officer, director or controlling person),
as the case may be, for any legal or other expenses reasonably incurred in
investigating, defending or preparing to defend, settling, compromising or
paying any such action, proceeding or claim. 
Notwithstanding the foregoing, the Holder’s aggregate liability pursuant
to this subsection (ii) shall be limited to the net amount
received by the Holder from the sale of the Warrant Shares.


 


(iii)                               Promptly after receipt
by any indemnified person of a notice of a claim or the beginning of any action
in respect of which indemnity is to be sought against an indemnifying person
pursuant to this Section 17(d), such indemnified person shall notify
the indemnifying person in writing of such claim or of the commencement of such
action, but the omission to so notify the indemnifying party will not relieve
it from any liability which it may have to any indemnified party under this Section 17(d) (except
to the extent that such omission materially and adversely affects the
indemnifying party’s ability to defend such action) or from any liability
otherwise than under this Section 17(d).  Subject to the provisions hereinafter stated,
in case any such action shall be brought against an indemnified person, the
indemnifying person shall be entitled to participate therein, and, to the
extent that it shall elect by written notice delivered to the indemnified party
promptly after receiving the aforesaid notice from such indemnified party,
shall be entitled to assume the defense thereof, with counsel reasonably
satisfactory to such indemnified person. 
After notice from the indemnifying person to such indemnified person of
its election to assume the defense thereof, such indemnifying person shall not
be liable to such indemnified person for any legal expenses subsequently
incurred by such indemnified person in connection with the defense thereof,
provided further, however, that if there exists or shall exist a conflict of
interest that would make it inappropriate, in the opinion of counsel to the
indemnifying person, for the same counsel to represent both the indemnified
person and such indemnifying person or any affiliate or associate thereof, the
indemnified person shall be entitled to retain its own counsel at the expense
of such indemnifying person; provided, however, that no indemnifying person
shall be responsible for the fees and expenses of more than one separate
counsel (together with appropriate local counsel) for all indemnified
parties.  In no event shall any
indemnifying person be liable in respect of any amounts paid in settlement of
any action unless the indemnifying person shall have approved the terms of such
settlement; provided that such consent shall not be unreasonably withheld.  No indemnifying person shall, without the
prior written consent of the indemnified person, effect any settlement of any
pending or threatened proceeding in respect of which any indemnified person is
or could have been a party and indemnification could have been sought hereunder
by such indemnified person, unless such settlement includes an unconditional
release of such indemnified person from all liability on claims that are the
subject matter of such proceeding.


 


(iv)                              If
the indemnification provided for in this Section 17(d) is
unavailable to or insufficient to hold harmless an indemnified party under subsection (A) or
(B) above in respect of any losses, claims, damages, liabilities or
expenses (or actions or proceedings in respect thereof) referred to therein,
then each indemnifying party shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages, liabilities
or expenses (or actions in respect thereof) in such proportion as is
appropriate to reflect the relative fault of the Company on the one hand and
the Holder on the other in connection with the statements or omissions or other
matters which resulted in such losses, claims, damages, liabilities or expenses
(or actions in respect thereof), as well as any other relevant equitable
considerations.  The relative fault shall
be determined by reference to, among other things, in the case of an untrue
statement, whether the untrue statement relates to information supplied by the


 


9





















 


Company on the one hand or the Holder on the other and
the parties’ relative intent, knowledge, access to information and opportunity
to correct or prevent such untrue statement. 
The Company and the Holders agree that it would not be just and
equitable if contribution pursuant to this subsection (iv) were
determined by pro rata allocation (even if the Holders were treated as one
entity for such purpose) or by any other method of allocation which does not
take into account the equitable considerations referred to above in this subsection (iv).  The amount paid or payable by an indemnified
party as a result of the losses, claims, damages or liabilities (or actions in
respect thereof) referred to above in this subsection (iv) shall
be deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action
or claim.  Notwithstanding the provisions
of this subsection (iv), Holder shall not be required to contribute
any amount in excess of the net amount received by the Holder from the sale of
the Warrant Shares.  No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation.  The Holders’ obligations in this subsection to
contribute are several in proportion to their sales of Warrant Shares to which
such loss relates and not joint.


 


(v)                                 For
purposes of this Section 17(d), the term “Selling Stockholder”
shall include the Holder, its officers, directors, employees, partners, agents
and any person controlling such Holder; the term “Registration Statement” shall
include any final prospectus, exhibit, supplement or amendment included in or
relating to the Registration Statement; and the term “untrue statement” shall
include (A) any untrue statement or alleged untrue statement, or any
omission or alleged omission to state in the Registration Statement a material
fact required to be stated therein or necessary to make the statements therein
not misleading and (B) any untrue statement or alleged untrue statement,
or any omission or alleged omission to state in the prospectus a material fact
required to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading.


 


18.                                 Miscellaneous.


 


(a)                                  Jurisdiction.  This Warrant shall be governed by and
construed in accordance with the laws of the state of California as applied to
contracts among California residents made and to be performed entirely within
the state of California, without regard to its conflict of law principles or
rules.


 


(b)                                 Restrictions.  The Holder acknowledges that the Warrant
Shares acquired upon the exercise of this Warrant, if not registered, will have
restrictions upon resale imposed by state and federal securities laws.


 


(c)                                  Nonwaiver
and Expenses.  No course of dealing
or any delay or failure to exercise any right hereunder on the part of Holder
shall operate as a waiver of such right or otherwise prejudice Holder’s rights,
powers or remedies, notwithstanding all rights hereunder terminate on the
Termination Date.  If the Company
willfully and knowingly fails to comply with any provision of this Warrant,
which results in any material damages to the Holder, the Company shall pay to
Holder such amounts as shall be sufficient to cover any costs and expenses
including, but not limited to, reasonable attorneys’ fees, including those of
appellate proceedings, incurred by Holder in collecting any amounts due
pursuant hereto or in otherwise enforcing any of its rights, powers or remedies
hereunder.


 


10





















 


(d)                                 NASD
Rules.  Notwithstanding anything
contained in this Warrant, the terms of this Warrant are intended to comply
with the rules and regulations of the National Association of Securities
Dealers, Inc. relating to the compensation of underwriters and placement
agents, and any provision of this Warrant that is determined to be inconsistent
with such rules shall be deemed to be modified to the extent necessary to
comply with such rules.


 


(e)                                  Notices.  Except as otherwise provided herein, any
notice or request required or permitted to be given or delivered to the Holder
by the Company shall be given in writing and shall be deemed effectively given (i) upon
personal delivery to Holder, (ii) when sent by electronic mail or
confirmed facsimile if sent during normal business hours of Holder, and if not
sent during normal business hours, then on the next business day, (iii) five
(5) days after having been sent by registered or certified mail, return
receipt requested, postage prepaid, or (iv) one (1) day after deposit
with a nationally recognized overnight courier, specifying next day delivery,
with written verification of receipt. 
All such notices or requests shall be sent to:  ATTN:  Joe
Schimmelpfennig, Roth Capital Partners, LLC, 24 Corporate Plaza, Newport Beach,
CA 92660, Facsimile No. (949) 720-7223.


 


(f)                                    Limitation
of Liability.  No provision hereof,
in the absence of any affirmative action by Holder to exercise this Warrant or
purchase Warrant Shares, and no enumeration herein of the rights or privileges
of Holder, shall give rise to any liability of Holder for the purchase price of
any Common Stock or as a stockholder of the Company, whether such liability is
asserted by the Company or by creditors of the Company.


 


(g)                                 Remedies.  Holder, in addition to being entitled to
exercise all rights granted by law, including recovery of damages, will be
entitled to specific performance of its rights under this Warrant.  The Company agrees that monetary damages
would not be adequate compensation for any loss incurred by reason of a breach
by it of the provisions of this Warrant and hereby agrees to waive the defense
in any action for specific performance that a remedy at law would be adequate.


 


(h)                                 Successors
and Assigns.  Subject to applicable
securities laws, this Warrant and the rights and obligations evidenced hereby
shall inure to the benefit of and be binding upon the successors of the Company
and the successors and permitted assigns of Holder.  The provisions of this Warrant are intended
to be for the benefit of all Holders from time to time of this Warrant and
shall be enforceable by any such Holder or holder of Warrant Shares.


 


(i)                                     Amendment.  This Warrant may be modified or amended or
the provisions hereof waived with the written consent of the Company and the
Holder; provided, however, if this Warrant is subsequently transferred to other
Persons, this Warrant may be modified or amended or the provisions hereof
waived with the written consent of such transferees (and the original Holder if
such Holder holds any part of the Warrant at such time) holding Warrant(s)
exercisable into a majority of the Warrant Shares then issuable under the
Warrants derived from the initial Warrant.


 


(j)                                     Severability.  Wherever possible, each provision of this
Warrant shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Warrant shall be prohibited by or
invalid under applicable law, such provision shall be ineffective to the extent
of such prohibition or invalidity, without invalidating the remainder of such
provisions or the remaining provisions of this Warrant.


 


11





















 


(k)                                  Headings.  The headings used in this Warrant are for the
convenience of reference only and shall not, for any purpose, be deemed a part
of this Warrant.


 


********************


 


12





















 


IN WITNESS WHEREOF, the Company has caused this
Warrant to be executed by its officer thereunto duly authorized.


 


 


	
  Dated: June 22,
  2005

  	
   

  
	
   

  	
  ORANGE
  21 INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
        /s/
  Michael C. Brower

  	
   

  
	
   

  	
  Name:

  	
  Michael C.
  Brower

  
	
   

  	
  Title:

  	
  CFO

  
						



 


13





















 


NOTICE OF EXERCISE


 


To:                              Orange
21 Inc.


 


(1)                                  The
undersigned hereby elects to purchase                 
Warrant Shares of Orange 21 Inc. pursuant to the terms of the Common Stock
Purchase Warrant dated                             ,
2005 (which is attached hereto), and tenders herewith payment of the exercise
price in full.


 


(2)                                  Please
issue a certificate or certificates representing said Warrant Shares in the
name of the undersigned or in such other name as is specified below:


 


 


 


The Warrant Shares shall
be delivered to the following DTC account:


 


 


 


 


 


	
   

  	
  ROTH CAPITAL
  PARTNERS, LLC

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
  Dated:

  	
   

  	
   

  
						



 





















 


ASSIGNMENT
FORM


 


(To assign the foregoing warrant, execute

this form and supply required information. 

Do not use this form to exercise the warrant.)


 


FOR VALUE RECEIVED, the foregoing Common Stock
Purchase Warrant dated                                 ,
2005 and all rights evidenced thereby are hereby assigned to


 


	
   

  	
  whose address is

  
	
   

  	
   

  
	
   

  	
  .

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
			



 


	
   

  	
  Dated:  

  	
   

  	
  , 

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Holder’s
  Signature:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Holder’s
  Address: