REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is made and
entered into as of July 14, 2005, by and between On The Go Healthcare, Inc.,
a Delaware corporation (the "Company"), and Laurus Master Fund, Ltd. (the
"Purchaser").
This Agreement is made pursuant to the Security and Purchase Agreement,
dated as of the date hereof, by and among the Purchaser, the Company (as
amended, modified or supplemented from time to time, the "Security Agreement"),
and pursuant to the Notes and the Warrants referred to therein.
The Company and the Purchaser hereby agree as follows:
1. Definitions. Capitalized terms used and not otherwise defined herein that
are defined in the Security Agreement shall have the meanings given such
terms in the Security Agreement. As used in this Agreement, the following
terms shall have the following meanings:
"Commission" means the Securities and Exchange Commission.
"Common Stock" means shares of the Company's common stock, par
value $0.001 per share.
"Effectiveness Date" means, (i) with respect to the Registration
Statement required to be filed in connection with the Minimum Borrowing
Note and the Term Note issued on the initial funding date under the
Security Agreement and the Warrants issued on such initial funding
date, a date no later than one hundred twenty (120) days following
such initial funding date and (ii) with respect to each additional
Registration Statement required to be filed hereunder, a date no later
than thirty (30) days following the applicable Filing Date.
"Effectiveness Period" has the meaning set forth in Section 2(a).
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and any successor statute.
"Filing Date" means, subject to Section 2(a) below, with respect to
(1) the Registration Statement which is required to be filed in
connection with the shares of Common Stock issuable upon conversion
of the Minimum Borrowing Note and the Term Note made on the initial
funding date, the date which is thirty (30) days after the date hereof,
(2) the Registration Statement required to be filed in connection with
each additional Minimum Borrowing Note funded after the initial funding
date, the date which is thirty (30) days after such funding of such
additional Minimum Borrowing Note, (3) the Registration Statement
required to be filed in connection with the shares of Common Stock
issuable to the Holder upon exercise of a Warrant, the date which is
thirty (30) days after the issuance of such Warrant, and (4) the
Registration Statement required to be filed in connection with the
shares of Common Stock issuable to the Holder as a result of
adjustments to the Fixed Conversion Price or the Exercise Price, as
the case may be, made pursuant to Section 2.5 of the Revolving Note,
Section 3.5 of the Minimum Borrowing Notes, Section 3.6 of the Term
Note, Section 4 of the Warrant or otherwise, thirty (30) days after
the occurrence of such event or the date of the adjustment of the
Fixed Conversion Price or Exercise Price, as the case may be.
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"Holder" or "Holders" means the Purchaser or any of its affiliates or
transferees to the extent any of them hold Registrable Securities,
other then those purchasing Registrable Securities in a market
transaction.
"Indemnified Party" has the meaning set forth in Section 5(c).
"Indemnifying Party" has the meaning set forth in Section 5(c).
"Proceeding" means an action, claim, suit, investigation or proceeding
(including, without limitation, an investigation or partial
proceeding, such as a deposition), whether commenced or threatened.
"Prospectus" means the prospectus included in a Registration Statement
(including, without limitation, a prospectus that includes any
information previously omitted from a prospectus filed as part of an
effective registration statement in reliance upon Rule 430A
promulgated under the Securities Act), as amended or supplemented by
any prospectus supplement, with respect to the terms of the offering
of any portion of the Registrable Securities covered by such
Registration Statement, and all other amendments and supplements to
the Prospectus, including post-effective amendments, and all material
incorporated by reference or deemed to be incorporated by reference
in such Prospectus.
"Registrable Securities" means the shares of Common Stock issued upon
the conversion of the each Minimum Borrowing Note, the Term Note and
issuable upon exercise of the Warrants.
"Registration Statement" means each registration statement required to
be filed hereunder, including the Prospectus therein, amendments and
supplements to such registration statement or Prospectus, including
pre- and post-effective amendments, all exhibits thereto, and all
material incorporated by reference or deemed to be incorporated by
reference in such registration statement.
"Rule 144" means Rule 144 promulgated by the Commission pursuant to
the Securities Act, as such Rule may be amended from time to time,
or any similar rule or regulation hereafter adopted by the
Commission having substantially the same effect as such Rule.
"Rule 415" means Rule 415 promulgated by the Commission pursuant to
the Securities Act, as such Rule may be amended from time to time,
or any similar rule or regulation hereafter adopted by the Commission
having substantially the same effect as such Rule.
"Securities Act" means the Securities Act of 1933, as amended, and any
successor statute.
"Security Agreement" has the meaning given to such term in the
Preamble hereto.
"Trading Market" means any of the NASD Over The Counter Bulletin
Board, NASDAQ SmallCap Market, the NASDAQ National Market, the
American Stock Exchange or the New York Stock Exchange
"Warrants" means the Common Stock purchase warrants issued in
connection with the Security Agreement, whether on the date thereof
or thereafter.
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2. Registration.
(a) On or prior to each Filing Date, the Company shall prepare and
file with the Commission a Registration Statement covering the
Registrable Securities for a selling stockholder resale offering
to be made on a continuous basis pursuant to Rule 415. The Company
shall be required to file no more than two Registration Statements
registering a Minimum Borrowing Note pursuant to this Agreement.
The Company shall not be required to prepare or file a Registration
Statement for less than $500,000 in Registrable Securities. Each
Registration Statement shall be on Form S-3 (except if the Company
is not then eligible to register for resale the Registrable
Securities on Form S-3, in which case such registration shall be
on another appropriate form in accordance herewith). The Company
shall cause each Registration Statement to become effective and
remain effective as provided herein. The Company shall use its
reasonable commercial efforts to cause each Registration Statement
to be declared effective under the Securities Act as promptly as
possible after the filing thereof, but in any event no later than
the Effectiveness Date. The Company shall use its reasonable
commercial efforts to keep each Registration Statement continuously
effective under the Securities Act until the date which is the
earlier date of when (i) all Registrable Securities covered by
such Registration Statement have been sold or (ii) all Registrable
Securities covered by such Registration Statement may be sold
immediately without registration under the Securities Act and
without volume restrictions pursuant to Rule 144(k), as determined
by the counsel to the Company pursuant to a written opinion letter
to such effect, addressed and acceptable to the Company's transfer
agent and the affected Holders (each, an "Effectiveness Period").
If: (i) any Registration Statement is not filed on or prior to the
applicable Filing Date for such Registration Statement; (ii) a
Registration Statement filed hereunder is not declared effective
by the Commission by the applicable Effectiveness Date; (iii) after
a Registration Statement is filed with and declared effective by the
Commission, a Discontinuation Event (as hereafter defined) shall
occur and be continuing, or such Registration Statement ceases to
be effective (by suspension or otherwise) as to all Registrable
Securities to which it is required to relate at any time prior to
the expiration of the Effectiveness Period applicable to such
Registration Statement (without being succeeded immediately by
an additional Registration Statement filed and declared effective)
for a period of time which shall exceed 30 days in the aggregate
per year or more than 20 consecutive calendar days (defined as a
period of 365 days commencing on the date such Registration
Statement is declared effective); or (iv) the Common Stock is
not listed or quoted, or is suspended from trading on any Trading
Market for a period of three (3) consecutive Trading Days (provided
the Company shall not have been able to cure such trading suspension
within 30 days of the notice thereof or list the Common Stock on
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another Trading Market); (any such failure or breach being referred
to as an "Event," and for purposes of clause (i) or (ii) the date on
which such Event occurs, or for purposes of clause (iii) the date
which such 30 day or 20 consecutive day period (as the case may be)
is exceeded, or for purposes of clause (iv) the date on which such
three (3) Trading Day period is exceeded, being referred to as
"Event Date"), then as partial relief for the damages to the Purchaser
by reason of the occurrence of any such Event (which remedy shall
not be exclusive of any other remedies available at law or in
equity), the Company shall pay to the Purchaser for each day
that an Event has occurred and is continuing, an amount in cash
equal to one-thirtieth (1/30th) of the product of: (A) the original
principal amount of each Minimum Borrowing Note outstanding at such
time multiplied by (B) 0.02. In the event the Company fails to make
any payments pursuant to this Section 2(b) in a timely manner, such
payments shall bear interest at the rate of 1.5% per month (prorated
for partial months) until paid in full.
(b) Within three business days of the Effectiveness Date, the Company
shall cause its counsel to issue a blanket opinion in the form
attached hereto as Exhibit A, to the transfer agent stating that
the shares are subject to an effective registration statement and can
be reissued free of restrictive legend upon notice of a sale by the
Purchaser and confirmation by the Purchaser that it has complied with
the prospectus delivery requirements, provided that the Company has
not advised the transfer agent orally or in writing that the opinion
has been withdrawn. Copies of the blanket opinion required by this
Section 2(c) shall be delivered to the Purchaser within the time frame
set forth above.
3. Registration Procedures. If and whenever the Company is required by the
provisions hereof to effect the registration of any Registrable Securities
under the Securities Act, the Company will, as expeditiously as possible:
(a) prepare and file with the Commission a Registration Statement
with respect to such Registrable Securities, respond as promptly
as possible to any comments received from the Commission, and use
its best efforts to cause such Registration Statement to become
and remain effective for the Effectiveness Period with respect
thereto, and promptly make available to the Purchaser copies of
all filings and Commission letters of comment relating thereto;
(b) prepare and file with the Commission such amendments and
supplements to such Registration Statement and the Prospectus
used in connection therewith as may be necessary to comply with
the provisions of the Securities Act with respect to the
disposition of all Registrable Securities covered by such
Registration Statement and to keep such Registration Statement
effective until the expiration of the Effectiveness Period
applicable to such Registration Statement;
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(c) make available to the Purchaser such number of copies of the
Registration Statement and the Prospectus included therein
(including each preliminary Prospectus) as the Purchaser
reasonably may request to facilitate the public sale or
disposition of the Registrable Securities covered by such
Registration Statement;
(d) use its commercially reasonable efforts to register or qualify
the Purchaser's Registrable Securities covered by such
Registration Statement under the securities or "blue sky"
laws of such jurisdictions within the United States as the
Purchaser may reasonably request, provided, however, that the
Company shall not for any such purpose be required to qualify
generally to transact business as a foreign corporation in any
jurisdiction where it is not so qualified or to consent to
general service of process in any such jurisdiction;
(e) list the Registrable Securities covered by such Registration
Statement with any securities exchange on which the Common
Stock of the Company is then listed;
(f) immediately notify the Purchaser at any time when a Prospectus
relating thereto is required to be delivered under the Securities
Act, of the happening of any event of which the Company has
knowledge as a result of which the Prospectus contained in such
Registration Statement, as then in effect, includes an untrue
statement of a material fact or omits to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances then existing;
and
(g) make available for inspection by the Purchaser and any attorney,
accountant or other agent retained by the Purchaser, all publicly
available, non-confidential financial and other records,
pertinent corporate documents and properties of the Company,
and cause the Company's officers, directors and employees to
supply all publicly available, non-confidential information
reasonably requested by the attorney, accountant or agent of
the Purchaser.
The Holder acknowledges that information provided pursuant to this
section and elsewhere in this Agreement may constitute material,
non-public information. While in possession of such information,
the Holders, including their principals and affiliates, will not
trade in the Company's securities or violate the securities laws of
any jurisdiction, absent an exemption from applicable securities
law. Additionally, the Holders agree to keep such information
confidential and to provide such further confidentiality agreements
as reasonably requested by the Company.
4. Registration Expenses. All expenses relating to the Company's compliance
with Sections 2 and 3 hereof, including, without limitation, all
registration and filing fees, printing expenses, fees and disbursements
of counsel and independent public accountants for the Company, fees and
expenses (including reasonable counsel fees) incurred in connection with
complying with state securities or "blue sky" laws, fees of the NASD,
transfer taxes, fees of transfer agents and registrars, fees of, and
disbursements incurred by, one counsel for the Holders are called
"Registration Expenses". All selling commissions applicable to the
sale of Registrable Securities, including any fees and disbursements
of any special counsel to the Holders beyond those included in
Registration Expenses, are called "Selling Expenses." The Company
shall only be responsible for all Registration Expenses.
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5. Indemnification.
(a) In the event of a registration of any Registrable Securities
under the Securities Act pursuant to this Agreement, the Company
will indemnify and hold harmless each Holder, and its officers,
directors and each other person, if any, who controls such Holder
within the meaning of the Securities Act, against any losses,
claims, damages or liabilities, joint or several, to which such
Holder, or such persons may become subject under the Securities
Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are
based upon any untrue statement or alleged untrue statement of
any material fact contained in any Registration Statement under
which such Registrable Securities were registered under the
Securities Act pursuant to this Agreement, any preliminary
Prospectus or final Prospectus contained therein, or any amendment
or supplement thereof, or arise out of or are based upon the
omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading, and will reimburse such Holder, and each
such person for any reasonable legal or other expenses incurred by
them in connection with investigating or defending any such loss,
claim, damage, liability or action; provided, however, that the
Company will not be liable in any such case if and to the extent
that any such loss, claim, damage or liability arises out of or is
based upon an untrue statement or alleged untrue statement or
omission or alleged omission so made in conformity with information
furnished by or on behalf of the Purchaser or any such person in
writing specifically for use in any such document.
(b) In the event of a registration of the Registrable Securities under
the Securities Act pursuant to this Agreement, the Purchaser will
indemnify and hold harmless the Company, and its officers,
directors and each other person, if any, who controls the Company
within the meaning of the Securities Act, against all losses,
claims, damages or liabilities, joint or several, to which the
Company or such persons may become subject under the Securities
Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are
based upon any untrue statement or alleged untrue statement of
any material fact which was furnished in writing by the Purchaser
to the Company expressly for use in (and such information is
contained in) the Registration Statement under which such
Registrable Securities were registered under the Securities Act
pursuant to this Agreement, any preliminary Prospectus or final
Prospectus contained therein, or any amendment or supplement
thereof, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading,
and will reimburse the Company and each such person for any
reasonable legal or other expenses incurred by them in connection
with investigating or defending any such loss, claim, damage,
liability or action, provided, however, that the Purchaser will
be liable in any such case if and only to the extent that any
such loss, claim, damage or liability arises out of or is based
upon an untrue statement or alleged untrue statement or omission
or alleged omission so made in conformity with information
furnished in writing to the Company by or on behalf of the
Purchaser specifically for use in any such document.
Notwithstanding the provisions of this paragraph, the Purchaser
shall not be required to indemnify any person or entity in excess
of the amount of the aggregate net proceeds received by the
Purchaser in respect of Registrable Securities in connection with
any such registration under the Securities Act.
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(c) Promptly after receipt by a party entitled to claim
indemnification hereunder (an "Indemnified Party") of notice of
the commencement of any action, such Indemnified Party shall, if
a claim for indemnification in respect thereof is to be made
against a party hereto obligated to indemnify such Indemnified
Party (an "Indemnifying Party"), notify the Indemnifying Party
in writing thereof, but the omission so to notify the
Indemnifying Party shall not relieve it from any liability
which it may have to such Indemnified Party other than under
this Section 5(c) and shall only relieve it from any liability
which it may have to such Indemnified Party under this
Section 5(c) if and to the extent the Indemnifying Party is
prejudiced by such omission. In case any such action shall be
brought against any Indemnified Party and it shall notify the
Indemnifying Party of the commencement thereof, the
Indemnifying Party shall be entitled to participate in and, to
the extent it shall wish, to assume and undertake the defense
thereof with counsel satisfactory to such Indemnified Party,
and, after notice from the Indemnifying Party to such
Indemnified Party of its election so to assume and undertake
the defense thereof, the Indemnifying Party shall not be liable
to such Indemnified Party under this Section 5(c) for any legal
expenses subsequently incurred by such Indemnified Party in
connection with the defense thereof; if the Indemnified Party
retains its own counsel, then the Indemnified Party shall pay
all fees, costs and expenses of such counsel, provided, however,
that, if the defendants in any such action include both the
Indemnified Party and the Indemnifying Party and the Indemnified
Party shall have reasonably concluded that there may be reasonable
defenses available to it which are different from or additional
to those available to the Indemnifying Party or if the interests
of the Indemnified Party reasonably may be deemed to conflict
with the interests of the Indemnifying Party, the Indemnified
Party shall have the right to select one separate counsel and
to assume such legal defenses and otherwise to participate in
the defense of such action, with the reasonable expenses and
fees of such separate counsel and other expenses related to
such participation to be reimbursed by the Indemnifying Party
as incurred.
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(d) In order to provide for just and equitable contribution in the
event of joint liability under the Securities Act in any case in
which either (i) the Purchaser, or any officer, director or
controlling person of the Purchaser, makes a claim for
indemnification pursuant to this Section 5 but it is judicially
determined (by the entry of a final judgment or decree by a court
of competent jurisdiction and the expiration of time to appeal
or the denial of the last right of appeal) that such
indemnification may not be enforced in such case notwithstanding
the fact that this Section 5 provides for indemnification in
such case, or (ii) contribution under the Securities Act may be
required on the part of the Purchaser or such officer, director
or controlling person of the Purchaser in circumstances for
which indemnification is provided under this Section 5; then,
and in each such case, the Company and the Purchaser will
contribute to the aggregate losses, claims, damages or liabilities
to which they may be subject (after contribution from others)
in such proportion so that the Purchaser is responsible only for
the portion represented by the percentage that the public offering
price of its securities offered by the Registration Statement
bears to the public offering price of all securities offered by
such Registration Statement, provided, however, that, in any such
case, (A) the Purchaser will not be required to contribute any
amount in excess of the public offering price of all such
securities offered by it pursuant to such Registration Statement;
and (B) no person or entity guilty of fraudulent misrepresentation
(within the meaning of Section 10(f) of the Act) will be
entitled to contribution from any person or entity who was
not guilty of such fraudulent misrepresentation.
6. Representations and Warranties.
(a) The Company has timely filed all proxy statements, reports,
schedules, forms, statements and other documents required to be
filed by it under the Exchange Act(collectively, the "SEC
Reports"). Each SEC Report was, at the time of its filing,
in substantial compliance with the requirements of its respective
form and none of the SEC Reports, nor the financial statements
(and the notes thereto) included in the SEC Reports, as of their
respective filing dates, contained any untrue statement of a
material fact or omitted to state a material fact required to
be stated therein or necessary to make the statements therein,
in light of the circumstances under which they were made, not
misleading. The financial statements of the Company included
in the SEC Reports comply as to form in all material respects
with applicable accounting requirements and the published rules
and regulations of the Commission or other applicable rules and
regulations with respect thereto. Such financial statements have
been prepared in accordance with generally accepted accounting
principles ("GAAP") applied on a consistent basis during the
periods involved (except (i) as may be otherwise indicated in
such financial statements or the notes thereto or (ii) in the
case of unaudited interim statements, to the extent they may
not include footnotes or may be condensed) and fairly present
in all material respects the financial condition, the results of
operations and the cash flows of the Company and its subsidiaries,
on a consolidated basis, as of, and for, the periods presented
in each such SEC Report.
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(b) The Common Stock is quoted for trading on the NASD Over The
Counter Bulletin Board and satisfies all requirements for the
continuation of such quotation, and the Company shall do all
things necessary for the continuation of such quotation. The
Company has not received any notice that its Common Stock will
no longer be quoted on the NASDAQ Over The Counter Bulletin Board
(except for prior notices which have been fully remedied) or that
the Common Stock does not meet all requirements for the
continuation of such listing
(c) Neither the Company, nor any of its affiliates, nor any person
acting on its or their behalf, has directly or indirectly made
any offers or sales of any security or solicited any offers to
buy any security under circumstances that would cause the
offering of the Securities pursuant to the Security Agreement
to be integrated with prior offerings by the Company for purposes
of the Securities Act which would prevent the Company from selling
the Common Stock pursuant to Rule 506 under the Securities Act,
or any applicable exchange-related stockholder approval provisions,
nor will the Company or any of its affiliates or subsidiaries take
any action or steps that would cause the offering of the Common
Stock to be integrated with other offerings (other than such
concurrent offering to the Purchaser).
(d) The Warrants, the Notes and the shares of Common Stock which the
Purchaser may acquire pursuant to the Warrants and the Notes are
all restricted securities under the Securities Act as of the date
of this Agreement. The Company will not issue any stop transfer
order or other order impeding the sale and delivery of any of the
Registrable Securities at such time as such Registrable Securities
are registered for public sale or an exemption from registration
is available, except as required by law.
(e) The Company understands the nature of the Registrable Securities
issuable upon the conversion of each Note and the exercise of each
Warrant and recognizes that the issuance of such Registrable
Securities may have a potential dilutive effect. The Company
specifically acknowledges that its obligation to issue the
Registrable Securities is binding upon the Company and
enforceable regardless of the dilution such issuance may have on
the ownership interests of other shareholders of the Company.
(f) The Company has filed material agreements with the Commission
as exhibits to a registration statement or to a form
required to be filed by the Company under the Exchange Act.
(g) The Company will at all times have authorized and reserved a
sufficient number of shares of Common Stock for the full conversion
of each Note and exercise of the Warrants.
(h) The Company may require each selling Holder to furnish to the
Company information regarding such Holder and the distribution of
such Registrable Securities as is required by law to be disclosed
in the Registration Statement, and the Company may exclude from
such registration the Registrable Securities of any such Holder
who unreasonably fails to furnish such information within a
reasonable time after receiving such request. The Holders warrant
to promptly (1) respond to any Commission comments relating to
the Holders and (2) providing any other information required by
law or reasonable comments from the Staff of the Commission for
disclosure in the Registration Statement.
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7. Miscellaneous.
(a) Remedies. In the event of a breach by the Company or by a Holder,
of any of their respective obligations under this Agreement, each
Holder or the Company, as the case may be, in addition to being
entitled to exercise all rights granted by law and under this
Agreement, including recovery of damages, will be entitled to
specific performance of its rights under this Agreement.
(b) No Piggyback on Registrations. Except as and to the extent set
forth on Schedule 7(b) hereto, neither the Company nor any of its
security holders (other than the Holders in such capacity pursuant
hereto) may include securities of the Company in any Registration
Statement other than the Registrable Securities, and the Company
shall not after the date hereof enter into any agreement providing
any such right for inclusion of shares in the Registration Statement
to any of its security holders.. Except as and to the extent
specified in Schedule 7(b) hereto, the Company has not previously
entered into any agreement granting any registration rights with
respect to any of its securities to any Person that have not
been fully satisfied.
(c) Compliance. Each Holder covenants and agrees that it will comply
with the prospectus delivery requirements of the Securities Act as
applicable to it in connection with sales of Registrable Securities
pursuant to any Registration Statement.
(d) Discontinued Disposition. Each Holder agrees by its acquisition
of such Registrable Securities that, upon receipt of a notice from
the Company of the occurrence of a Discontinuation Event (as
defined below), such Holder will forthwith discontinue disposition
of such Registrable Securities under the applicable Registration
Statement until such Holder's receipt of the copies of the
supplemented Prospectus and/or amended Registration Statement or
until it is advised in writing (the "Advice") by the Company that
the use of the applicable Prospectus may be resumed, and, in either
case, has received copies of any additional or supplemental filings
that are incorporated or deemed to be incorporated by reference
in such Prospectus or Registration Statement. The Company may
provide appropriate stop orders to enforce the provisions of this
paragraph. For purposes of this Agreement, a "Discontinuation
Event" shall mean (i) when the Commission notifies the Company
whether there will be a "review" of such Registration Statement
and whenever the Commission comments in writing on such
Registration Statement (the Company shall provide true and
complete copies thereof and all written responses thereto to
each of the Holders); (ii) any request by the Commission or any
other Federal or state governmental authority for amendments or
supplements to such Registration Statement or Prospectus or for
additional information; (iii) the issuance by the Commission of
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any stop order suspending the effectiveness of such Registration
Statement covering any or all of the Registrable Securities or
the initiation of any Proceedings for that purpose; (iv) the
receipt by the Company of any notification with respect to the
suspension of the qualification or exemption from qualification
of any of the Registrable Securities for sale in any jurisdiction,
or the initiation or threatening of any Proceeding for such
purpose; and/or (v) the occurrence of any event or passage of
time that makes the financial statements included in such
Registration Statement ineligible for inclusion therein or any
statement made in such Registration Statement or Prospectus or
any document incorporated or deemed to be incorporated therein
by reference untrue in any material respect or that requires any
revisions to such Registration Statement, Prospectus or other
documents so that, in the case of such Registration Statement or
Prospectus, as the case may be, it will not contain any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made,
not misleading.
(e) Piggy-Back Registrations. If at any time during any Effectiveness
Period there is not an effective Registration Statement covering
all of the Registrable Securities required to be covered during
such Effectiveness Period and the Company shall determine to
prepare and file with the Commission a registration statement
relating to an offering for its own account or the account of
others under the Securities Act of any of its equity securities,
other than on Form S-4 or Form S-8 (each as promulgated under the
Securities Act) or their then equivalents relating to equity
securities to be issued solely in connection with any acquisition
of any entity or business or equity securities issuable in
connection with stock option or other employee benefit plans,
then the Company shall send to each Holder written notice of such
determination and, if within fifteen (15) days after receipt of
such notice, any such Holder shall so request in writing, the
Company shall include in such registration statement all or any
part of such Registrable Securities such Holder requests to be
registered, to the extent the Company may do so without violating
registration rights of others which exist as of the date of this
Agreement, subject to customary underwriter cutbacks applicable
to all holders of registration rights and subject to obtaining
any required consent of any selling stockholder(s) to such
inclusion under such registration statement.
(f) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended,
modified or supplemented, and waivers or consents to departures
from the provisions hereof may not be given, unless the same
shall be in writing and signed by the Company and the Holders
of the then outstanding Registrable Securities. Notwithstanding
the foregoing, a waiver or consent to depart from the provisions
hereof with respect to a matter that relates exclusively to the
rights of certain Holders and that does not directly or indirectly
affect the rights of other Holders may be given by Holders of at
least a majority of the Registrable Securities to which such
waiver or consent relates; provided, however, that the provisions
of this sentence may not be amended, modified, or supplemented
except in accordance with the provisions of the immediately
preceding sentence.
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(g) Notices. Any notice or request hereunder may be given to the
Company or the Purchaser at the respective addresses set forth
below or as may hereafter be specified in a notice designated
as a change of address under this Section 7(g). Any notice or
request hereunder shall be given by registered or certified mail,
return receipt requested, hand delivery, overnight mail, Federal
Express or other national overnight next day carrier (collectively,
"Courier") or telecopy (confirmed by mail). Notices and requests
shall be, in the case of those by hand delivery, deemed to have
been given when delivered to any party to whom it is addressed,
in the case of those by mail or overnight mail, deemed to have
been given three (3) business days after the date when deposited
in the mail or with the overnight mail carrier, in the case of a
Courier, the next business day following timely delivery of the
package with the Courier, and, in the case of a telecopy, when
confirmed. The address for such notices and communications
shall be as follows:
(h) If to the Company: On The Go Healthcare, Inc.
85 Corstate Avenue, Unit #1
Concord, Ontario
Canada L4K 4Y2
Attention:Stuart Turk
Facsimile:
with a copy to:
Trombly Business Law
1163 Walnut Street, Suite 7
Newton, MA 02459
Attention: Amy Trombly
Facsimile: (617) 243-0066
If to a Purchaser: To the address set forth under such Purchaser
name on the signature pages hereto.
If to any other Person who is
then the registered Holder: To the address of such Holder as it
appears in the stock transfer books
of the Company
or such other address as may be designated in writing hereafter in
accordance with this Section 7(g) by such Person.
(i) Successors and Assigns. This Agreement shall inure to the benefit
of and be binding upon the successors and permitted assigns of each
of the parties and shall inure to the benefit of each Holder.
The Company may not assign its rights or obligations hereunder
without the prior written consent of each Holder. Each Holder
may assign their respective rights hereunder in the manner and
to the Persons as permitted under the Notes and the Securities
Purchase Agreement.
12
(j) Execution and Counterparts. This Agreement may be executed in
any number of counterparts, each of which when so executed shall
be deemed to be an original and, all of which taken together shall
constitute one and the same agreement. In the event that any
signature is delivered by facsimile transmission, such signature
shall create a valid binding obligation of the party executing
(or on whose behalf such signature is executed) the same with
the same force and effect as if such facsimile signature were
the original thereof.
(k) Governing Law, Jurisdiction and Waiver of Jury Trial. THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
CONTRACTS MADE AND PERFORMED IN SUCH STATE, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAW. The Company hereby consents
and agrees that the state or federal courts located in the County
of New York, State of New York shall have exclusion jurisdiction
to hear and determine any Proceeding between the Company, on the
one hand, and the Purchaser, on the other hand, pertaining to
this Agreement or to any matter arising out of or related to
this Agreement; provided, that the Purchaser and the Company
acknowledge that any appeals from those courts may have to be
heard by a court located outside of the County of New York,
State of New York, and further provided, that nothing in this
Agreement shall be deemed or operate to preclude the Purchaser
from bringing a Proceeding in any other jurisdiction to collect
the obligations, to realize on the Collateral or any other
security for the obligations, or to enforce a judgment or other
court order in favor of the Purchaser. The Company expressly
submits and consents in advance to such jurisdiction in any
Proceeding commenced in any such court, and the Company hereby
waives any objection which it may have based upon lack of
personal jurisdiction, improper venue or forum non conveniens.
The Company hereby waives personal service of the summons,
complaint and other process issued in any such Proceeding and
agrees that service of such summons, complaint and other
process may be made by registered or certified mail addressed
to the Company at the address set forth in Section 7(g) and
that service so made shall be deemed completed upon the earlier
of the Company's actual receipt thereof or three (3) days
after deposit in the U.S. mails, proper postage prepaid. The
parties hereto desire that their disputes be resolved by a
judge applying such applicable laws. Therefore, to achieve the
best combination of the benefits of the judicial system and of
arbitration, the parties hereto waive all rights to trial by
jury in any Proceeding brought to resolve any dispute, whether
arising in contract, tort, or otherwise between the Purchaser
and/or the Company arising out of, connected with, related or
incidental to the relationship established between then in
connection with this Agreement. If either party hereto shall
commence a Proceeding to enforce any provisions of this
Agreement, the Security Agreement or any other Ancillary
Agreement, then the prevailing party in such Proceeding shall
be reimbursed by the other party for its reasonable attorneys'
fees and other costs and expenses incurred with the investigation,
preparation and prosecution of such Proceeding.
13
(l) Cumulative Remedies. The remedies provided herein are cumulative
and not exclusive of any remedies provided by law.
(m) Severability. If any term, provision, covenant or restriction of
this Agreement is held by a court of competent jurisdiction to be
invalid, illegal, void or unenforceable, the remainder of the
terms, provisions, covenants and restrictions set forth herein
shall remain in full force and effect and shall in no way be
affected, impaired or invalidated, and the parties hereto shall
use their reasonable efforts to find and employ an alternative
means to achieve the same or substantially the same result as
that contemplated by such term, provision, covenant or restriction.
It is hereby stipulated and declared to be the intention of the
parties that they would have executed the remaining terms,
provisions, covenants and restrictions without including any of
such that may be hereafter declared invalid, illegal, void or
unenforceable.
(n) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning
hereof.
[Balance of page intentionally left blank; signature page follows]
14
IN WITNESS WHEREOF, the parties have executed this Minimum Borrowing Note
Registration Rights Agreement as of the date first written above.
ON THE GO HEALTHCARE, INC.
By:/s/Stuart Turk
--------------------------
Name: Stuart Turk
Title:CEO
LAURUS MASTER FUND, LTD.
By:/s/David Grin
-------------------------
Name:David Grin
Title: Director
Address for Notices:
825 Third Avenue, 14th Floor
New York, New York 10022
Attention: David Grin
Facsimile: 212-541-4434
15
EXHIBIT A
____________, 200___
[Continental Stock Transfer
& Trust Company
Two Broadway
New York, New York 10004
Attn: William Seegraber]
Re: On The Go Healthcare, Inc. Registration Statement on Form SB-2
Ladies and Gentlemen:
I have been counsel to On The Go Healthcare, Inc. (the "Company") in connection
with the preparation and filing with the Securities and Exchange Commission
of a Registration Statement on Form SB-2, Registration No. 333-XXXXX (the
"Registration Statement")., I have been requested to render my opinion to you
in connection with the resale by the individuals or entities listed on
Schedule A attached hereto (the "Selling Stockholders"), of an aggregate
of __________ shares (the "Shares") of the Company's Common Stock. I have
been notified by the Staff of the Securities and Exchange Commission that
the Registration Statement on Form SB-2 under the Securities Act of 1933,
as amended (the "Act"), with respect to the resale of the Shares was
declared effective by the Securities and Exchange Commission on [date].
In forming my opinion, I have assumed the genuineness of all signatures, the
legal capacity of natural persons, the authenticity of all documents
submitted to me as originals, the conformity to original documents of all
documents submitted to me as certified or photostatic copies and the
authenticity of the originals of such copies.
Based upon the foregoing, upon request by the Selling Stockholders at any
time while the registration statement remains effective, it is my opinion
that the Shares have been registered for resale under the Act and new
certificates evidencing the Shares upon their transfer or re-registration
by the Selling Stockholders may be issued without restrictive legend. I
will advise you if the registration statement is not available or effective
at any point in the future.
My opinion is limited to the Delaware General Corporation Law and federal
securities laws of the United States and I express no opinion with respect
to the laws of any other jurisdiction. No opinion is expressed herein with
respect to the qualification of the Shares under the securities or blue sky
laws of any state or any foreign jurisdiction.
Very truly yours,
[Company counsel]
16
Schedule A to Exhibit A
Selling Stockholder R/N/O Shares Being Offered
SCHEDULE 7(b)
The original Shareholders of Infinity Technologies Inc will receive
a minimum of 1,250,000 common shares or $1,500,000 CDN worth of common
stock based on the stock price at closing (to be issued on closing).
Key employees of Infinity Technologies Inc. will split 200,000
restricted shares (to be issued on closing).
Nadav Elituv or 964434 Ontario Inc. will be granted 50,000 shares
and 50,000 "C" Warrants upon integration of Infinity Technologies Inc.
(to be issued on closing).
The items below have been issued as indicated:
Name of Shareholder Date Issued Stock Issued Shares
DAVID CHILDS 05/09/05 RESTRICTED 10,000
DOUG CLARK 05/09/05 RESTRICTED 25,000
TONY DIVERONICA 05/09/05 RESTRICTED 7,500
JENNIFER GARDINER 05/26/05 RESTRICTED 25,000
STEVEN GRYFE 03/23/05 RESTRICTED 2,000
THIRUSENTHIL NAVARATNARAJH 05/09/05 RESTRICTED 5,000
JOHN PENTONY 03/23/05 RESTRICTED 17,500
CAROLINE PILGRIM 05/09/05 RESTRICTED 5,000
FRANK ABATE 05/26/05 RESTRICTED 100,000
BRETT W GOLD 05/26/05 RESTRICTED 75,000
05/26/05 "C" Warrants 75,000
AL KAU 05/09/05 RESTRICTED 20,000
05/09/05 "C" Warrants 50,000
17