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/ Xxxxxx Xxxx By: /s/ Xxxxx Xxxxxxxxx
-------------------------------- -----------------------------------
Name: Xxxxxx Xxxx Name: Xxxxx Xxxxxxxxx
Title: Chief Executive Officer Title: Senior Managing Director
