UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 OR 15(d) of The Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) October 15, 2007
ON THE GO HEALTHCARE, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 333-61538 98-0231687
---------------- -------------------- -------------------
(State or Other (Commission (IRS Employer
Jurisdiction of File Number) Identification
Incorporation) No.)
85 Corstate Avenue, Unit #1
Concord, Ontario
Canada L4K 4Y2
---------------------------------------------------
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (905) 760-2987
Check the appropriate box below if the Form 8-K filing is intended to
simultaneously satisfy the filing obligation of the registrant under any of
the following provisions (see General Instruction A.2. below):
[ ] Written communications pursuant to Rule 425 under the Securities Act
(17 CFR 230.425)
[ ] Soliciting material pursuant to Rule 14a-12 under the Exchange Act
(17 CFR 240.14a-12)
[ ] Pre-commencement communications pursuant to Rule 14d-2(b) under the
Exchange Act (17 CFR 240.14d-2(b))
[ ] Pre-commencement communications pursuant to Rule 13e-4(c) under the
Exchange Act (17 CFR 240.13e-4(c))
----------------------------------------
ITEM 1.01 ENTRY INTO A MATERIAL DEFINITIVE AGREEMENT.
ITEM 2.03 CREATION OF A DIRECT FINANCIAL OBLIGATION UNDER AN OFF-BALANCE SHEET
ARRANGEMENT OF A REGISTRANT.
On July 14, 2005, we entered into a convertible financing facility with Laurus
Master Fund, Ltd. for up to $5,500,000. The facility consists of (i) a
$500,000 Secured Convertible Term Note, (ii) a $2,500,000 Secured Convertible
Minimum Borrowing Note, and (iii) a $5,000,000 Secured Revolving Note
(collectively, the "Notes"). The Notes are secured by a security interest
in substantially all of our assets. Additionally, as part of the financing,
we issued Laurus common stock purchase warrants to purchase up to 1,420,000
shares of our common stock at a price of $0.65 per share, expiring
July 14, 2012. The facility terminates on July 14, 2008.
On January 24, 2006, we agreed to revise the financing facility with Laurus.
On May 16, 2006, we agreed to further amend the Amended and Restated
Convertible Term Note (the "Term Note"). On September 24, 2007, we agreed to
further amend the Amended and Restated Secured Convertible Minimum Borrowing
Note (the "Minimum Borrowing Note"). On October 15, 2007, we agreed to further
amend the Minimum Borrowing Note to change the fixed conversion price of
$0.005 for the first $150,000 of the principal converted after
September 24, 2007 to the price equal to eighty percent of the average of
the five lowest closing prices of our common stock during the ten (10)
trading days immediately prior to the date of such conversion; provided,
however, that the Fixed Conversion Price applicable to such conversion may
not be less than $0.001, subject to adjustments, for the first $250,000 of
the principal converted after October 15, 2007. The rest of the principal
of the Minimum Borrowing Note and the interest associated with the principal
would still be convertible at $1.02. The Minimum Borrowing Note, as amended,
matures on July 14, 2008. The Minimum Borrowing Note has an interest rate
equal to the Wall Street Journal prime rate plus 2%. The interest rate will
not be lower than 8% based on movements in the prime rate. Under the terms
of the Minimum Borrowing Note, we began making monthly payments plus accrued
and unpaid interest on August 1, 2005.
We may prepay the Minimum Borrowing Note by paying to Laurus a sum of money
equal to 130% of the Principal Amount outstanding at such time together with
accrued but unpaid interest thereon and any and all other sums due, accrued
or payable to Laurus arising under any portion of the facility.
The Notes and warrants were offered and sold to Laurus in a private placement
transaction made in reliance upon exemptions from registration pursuant to
Section 4(2) under the Securities Act of 1933 and Rule 506 promulgated
thereunder. Laurus is an accredited investor as defined in Rule 501 of
Regulation D promulgated under the Securities Act of 1933.
Capitalized terms used but not defined herein shall have the meanings given
them in the Amended and Restated Security and Purchase Agreement. The
description of the transactions contained herein are qualified in their
entirety by reference to the Amended and Restated Secured Convertible Term
Note, Amended and Restated Secured Revolving Note, Amended and Restated
Secured Convertible Minimum Borrowing Note, Amended and Restated Security
and Purchase Agreement, Amended and Restated Form of Common Stock Purchase
Warrant and the Amended and Restated Registration Rights Agreement filed as
Exhibits 4.1 - 4.6, respectively, to the Form 8-K filed January 30, 2006
and incorporated herein by reference. The Omnibus Amendment and the Second
Omnibus Amendments are qualified in their entirety by, and made subject to,
the more complete information set forth in the Omnibus Amendments filed as
exhibits 4.7 and 4.8, to the Form 8-Ks filed July 11, 2007 and
September 28, 2007, respectively, and incorporated herein by reference.
The foregoing description of the terms and conditions of the Third Omnibus
Amendment is qualified in its entirety by, and made subject to, the more
complete information set forth in the Third Omnibus Amendment filed as
Exhibit 4.9, incorporated herewith.
This report may contain forward-looking statements that involve risks and
uncertainties, including, without limitation, statements concerning our
business and possible or assumed future results of operations. We generally
use words such as "believe," "may," "could," "will," "intend," "expect,"
"anticipate," "plan," and similar expressions to identify forward-looking
statements. You should not place undue reliance on these forward-looking
statements. Our actual results could differ materially from those
anticipated in the forward-looking statements for many reasons including
the risks described in our annual report on Form 10-KSB and other filings
we make from time to time filed with the Securities and Exchange Commission.
Although we believe the expectations reflected in the forward-looking
statements are reasonable, they relate only to events as of the date on
which the statements are made, and our future results, levels of activity,
performance or achievements may not meet these expectations. We do not
intend to update any of the forward-looking statements after the date of
this document to conform these statements to actual results or to changes
in our expectations, except as required by law.
ITEM 9.01 FINANCIAL STATEMENTS AND EXHIBITS
EXHIBIT NUMBER DESCRIPTION
4.1 Amended and Restated Secured Convertible Term Note, dated January 13, 2006
(included as Exhibit 4.1 to the Form 8-K filed January 30, 2006 and
incorporated herein by reference).
4.2 Amended and Restated Secured Revolving Note, dated January 13, 2006
(included as Exhibit 4.2 to the Form 8-K filed January 30, 2006 and
incorporated herein by reference).
4.3 Amended and Restated Secured Convertible Minimum Borrowing Note, dated
January 13, 2006 (included as Exhibit 4.3 to the Form 8-K filed
January 30, 2006 and incorporated herein by reference).
4.4 Amended and Restated Security and Purchase Agreement, dated
January 13, 2006 (included as Exhibit 4.4 to the Form 8-K filed
January 30, 2006 and incorporated herein by reference).
4.5 Amended and Restated Form of Common Stock Purchase Warrant, dated
January 13, 2006 (included as Exhibit 4.5 to the Form 8-K filed
January 30, 2006 and incorporated herein by reference).
4.6 Amended and Restated Registration Rights Agreement, dated
January 13, 2006 (included as Exhibit 4.6 to the Form 8-K filed
January 30, 2006 and incorporated herein by reference).
4.7 Omnibus Amendment, dated July 11, 2007 (included as exhibit 4.7 to
the Form 8-K filed July 17, 2007 and incorporated herein by reference).
4.8 Second Omnibus Amendment, dated September 24, 2007 (filed as Exhibit 4.8
to the Form 8-K filed September 28, 2007 and incorporated herein by
reference).
4.9 Third Omnibus Amendment, dated October 15, 2007 (filed herewith).
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
Date October 19, 2007
On the Go Healthcare, Inc.
- -------------------------------
(Registrant)
/s/ Stuart Turk
- -------------------------------
(Signature)
Name: Stuart Turk
Title: Chief Executive Officer
and President
EXHIBIT 4.9
THIRD OMNIBUS AMENDMENT
This Third Omnibus Amendment, dated October 15, 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 $250,000 of principal
converted hereunder after October 15, 2007, the price equal to eighty
percent (80%) of the average of the five (5) lowest closing prices of the
Common Stock during the ten (10) trading days immediately prior to the date
of such conversion; provided, however, that the Fixed Conversion Price
applicable to such conversion shall not be less than $0.001 (subject to
adjustments as provided herein) and (b) with respect to the remainder of
principal and interest converted hereunder after the conversion described
in clause (a) above, $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 Fixed Conversion Price
described in paragraph 1 above will require the Company to issue more
shares of Common Stock than first contemplated in the Minimum Borrowing
Note.
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 Fixed
Conversion Price or Exercise Price of any other security.
5. The Purchaser agrees that such reduction in the Fixed Conversion Price set
forth in paragraph 1 above and the subsequent issuance of shares of Common
Stock upon conversion of the Minimum Borrowing Note 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: LAURUS CAPITAL MANAGEMENT, LLC,
ITS INVESTMENT MANAGER
By: /s/ Stuart Turk By: /s/ Scott Bluestein
- -------------------------------- -----------------------------------
Name: Stuart Turk Name: Scott Bluestein
Title: Chief Executive Officer Title: Senior Managing Director