EXHIBIT 4.8
SECOND OMNIBUS AMENDMENT
This Second Omnibus Amendment, dated September 24, 2007, by and between ON THE
GO HEALTHCARE, INC., a Delaware Corporation (the "Company"), and Laurus Master
Fund, Ltd., a Cayman Islands company ("Laurus", and together with the
undersigned assignees of Laurus, collectively, the "Purchaser"), amends (i)
that certain Secured Convertible Minimum Borrowing Note, dated July 14, 2005
by the Company in favor of Purchaser in the aggregate principal amount of
$2,500,000 (as amended, restated, modified or supplemented from time to time,
the "Minimum Borrowing Note") issued pursuant to the terms of the Security
and Purchase Agreement, dated July 14, 2005 between the Company and the
Purchaser (as amended, restated, modified or supplemented from time to time,
the "Purchase Agreement") issued pursuant to the terms of the Purchase
Agreement. The Purchase Agreement, together with the Minimum Borrowing
Note and the other Ancillary Documents referred to in the Purchase Agreement,
are herein referred to as the "Loan Documents." Capitalized terms used but
not defined herein shall have the meanings given them in the Purchase
Agreement.
PREAMBLE
WHEREAS, pursuant to the terms of the Purchase Agreement, the Company
issued and sold the Minimum Borrowing Note to Purchaser; and
WHEREAS, the Purchaser and the Company desire to amend the transactions
contemplated by the Purchase Agreement and the Minimum Borrowing Note.
NOW, THEREFORE, in consideration of the covenants, agreements and
conditions hereinafter set forth, and other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Amendment to Minimum Borrowing Note. Section 3.1 of the Minimum Borrowing
Note is hereby amended by deleting the last two sentences appearing therein
in its entirety and inserting the following new sentence in lieu thereof:
"For purposes hereof, subject to Section 3.6 hereof, the initial "Fixed
Conversion Price" means: (a) with respect to the first $150,000 of
principal converted hereunder after September 24, 2007, $0.005; and
(b) with respect to the remainder of principal and interest converted
hereunder after the conversion described in Section 3.1(a) hereof,
$1.02. The shares of Common Stock to be issued upon such conversion
are herein referred to as the "Conversion Shares")."
2. The Company hereby agrees to cover any and all expense related to the
issuance of a legal opinion issued for the benefit of the Company's transfer
agent, if required, so that Purchaser may sell the common stock issued by
the Company upon conversion of the Notes pursuant to Rule 144(k).
Purchaser acknowledges that the Company will not amend the Registration
Statement and the Purchaser may not sell the common stock issued by the
Company upon conversion of the Minimum Borrowing Note pursuant to the
Registration Statement. However, this paragraph will not apply to the
common stock issuable upon exercise of the warrants described in the
Registration Statement.
3. The Purchaser acknowledges that the reduction in conversion price described
in paragraphs 1 above will require the Company to issue more shares of
common stock.
4. Additionally, the Purchaser and the Company agree that such reduction in
price does not trigger any clause in the Minimum Borrowing Note or any
other agreement between the Purchaser and the Company to reduce the
conversion price or exercise price of other securities.
5. The Purchaser agrees that such reduction in price and the subsequent
issuance of shares will not trigger a default under any agreement between
the Purchaser and the Company.
6. The amendments set forth above shall be effective as of the date first
above written (the "Amendment Effective Date") on the date when each of
the Company and the Purchaser shall have executed and the Company shall
have delivered to Purchaser its respective counterpart to this Amendment.
7. Except as specifically set forth in this Amendment, there are no other
amendments, modifications or waivers to the Loan Documents, and all of
the other forms, terms and provisions of the Loan Documents remain in
full force and effect.
8. The Company hereby represents and warrants to the Purchaser that (i) no
Event of Default (as defined in the Purchase Agreement) exists on the
date hereof, (ii) on the date hereof, all representations, warranties
and covenants made by the Company in connection with the Loan Documents
are true, correct and complete and (iii) on the date hereof, all of the
Company's and its Subsidiaries' covenant requirements have been met.
9. From and after the Amendment Effective Date, all references in the Loan
Documents shall be deemed to be references to the Loan Documents, as the
case may be, as modified hereby.
10. This Amendment shall be binding upon the parties hereto and their
respective successors and permitted assigns and shall inure to the benefit
of and be enforceable by each of the parties hereto and their respective
successors and permitted assigns. THIS AMENDMENT SHALL BE CONSTRUED AND
ENFORCED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF NEW
YORK. This Amendment may be executed in any number of counterparts,
each of which shall be an original, but all of which shall constitute
one instrument.
IN WITNESS WHEREOF, each of the parties hereto has executed this Amendment or
has caused this Amendment to be executed on its behalf by a representative
duly authorized, all as of the date first above set forth.
COMPANY: PURCHASER:
ON THE GO HEALTHCARE, INC. LAURUS MASTER FUND, LTD.
By: /s/ Stuart Turk By: /s/ David Grin
- ------------------------------- --------------------------------
Name: Stuart Turk Name: David Grin
Title: Chief Executive Officer Title: Director