Exhibit 4.30
REGISTRATION RIGHTS AGREEMENT
Registration Rights Agreement (the "Agreement"), dated as of January 16, 2007,
by and between On The Go Healthcare, Inc., a corporation organized under the
laws of State of Delaware, with its principal executive office at 00 Xxxxxxxx
Xxxxxx, Xxxx #0, Xxxxxxx, Xxxxxxx, Xxxxxx X0X 0X0 (the "Company"), and Dutchess
Private Equities Fund, Ltd., a Cayman Islands exempted company with its
principal office at 00 Xxxxxxxxxxxx Xxxxxx, Xxxxx 0, Xxxxxx, XX 00000
(the "Holder").
Whereas, in connection with the Investment Agreement by and between the Company
and the Investor of this date (the "Investment Agreement"), the Company has
agreed to issue and sell to the Investor an indeterminate number of shares of
the Company's Common Stock, $.0001par value per share (the "Common Stock"),
to be purchased pursuant to the terms and subject to the conditions set forth
in the Investment Agreement; and
Whereas, to induce the Investor to execute and deliver the Investment
Agreement, the Company has agreed to provide certain registration rights
under the Securities Act of 1933, as amended, and the rules and regulations
thereunder, or any similar successor statute (collectively, the "1933 Act"),
and applicable state securities laws, with respect to the shares of Common
Stock issuable pursuant to the Investment Agreement.
Now therefore, in consideration of the foregoing promises and the mutual
covenants contained hereinafter and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the Company and
the Investor hereby agree as follows:
Section 1. DEFINITIONS.
As used in this Agreement, the following terms shall have the following
meanings:
"Execution Date" means the date of this Agreement set forth above.
"Investor" means Dutchess Private Equities Fund, Ltd., a Cayman Islands
exempted company
"Person" means a corporation, a limited liability company, an association, a
partnership, an organization, a business, an individual, a governmental or
political subdivision thereof or a governmental agency.
"Potential Material Event" means any of the following: (i) the possession by
the Company of material information not ripe for disclosure in the
Registration Statement, which shall be evidenced by determinations in good
faith by the Board of Directors of the Company that disclosure of such
information in the Registration Statement would be detrimental to the
business and affairs of the Company, or (ii) any material engagement or
activity by the Company which would, in the good faith determination of the
Board of Directors of the Company, be adversely affected by disclosure in
the Registration Statement at such time, which determination shall be
accompanied by a good faith determination by the Board of Directors of the
Company that the Registration Statement would be materially misleading absent
the inclusion of such information.
"Principal Market" shall mean The American Stock Exchange, National Association
of Securities Dealer's, Inc., Over-the-Counter electronic bulletin board, the
Nasdaq National Market or The Nasdaq SmallCap Market whichever is the principal
market on which the Common Stock of the Company is listed.
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"Register," "Registered," and "Registration" refer to the Registration effected
by preparing and filing one (1) or more Registration Statements in compliance
with the 1933 Act and pursuant to Rule 415 under the 1933 Act or any successor
rule providing for offering securities on a continuous basis ("Rule 415"), and
the declaration or ordering of effectiveness of such Registration Statement(s)
by the United States Securities and Exchange Commission (the "SEC").
"Registrable Securities" means (i) the shares of Common Stock issued or
issuable pursuant to the Investment Agreement, and (ii) any shares of capital
stock issued or issuable with respect to such shares of Common Stock, if any,
as a result of any stock split, stock dividend, recapitalization, exchange or
similar event or otherwise, which have not been (x) included in the
Registration Statement that has been declared effective by the SEC, or (y)
sold under circumstances meeting all of the applicable conditions of Rule 144
(or any similar provision then in force) under the 1933 Act.
"Registration Statement" means the registration statement of the Company filed
under the 1933 Act covering the Registrable Securities.
All capitalized terms used in this Agreement and not otherwise defined herein
shall have the same meaning ascribed to them as in the Investment Agreement.
Section 2. REGISTRATION.
(a) The Company shall, within twenty-one (21) days of the date of this
Agreement, file with the SEC the Registration Statement or
Registration Statements (as is necessary) on Form SB-2 (or, if
such form is unavailable for such a registration, on such other
form as is available for such registration), covering the resale
of all of the Registrable Securities, which Registration
Statement(s) shall state that, in accordance with Rule 416
promulgated under the 1933 Act, such Registration Statement also
covers such indeterminate number of additional shares of Common
Stock as may become issuable upon stock splits, stock dividends
or similar transactions. The Company shall initially register
for resale 1,500,000 shares of Common Stock which would be
issuable on the date preceding the filing of the Registration
Statement based on the closing bid price of the Company's Common
Stock on such date and the amount reasonably calculated that
represents Common Stock issuable to other parties as set forth
in the Investment Agreement except to the extent that the SEC
requires the share amount to be reduced as a condition of
effectiveness. To the extent the SEC requires the Company to
reduce the number of shares on the Registration Statement, the
Company will not suffer any penalties or trigger any default
provisions. If the SEC will not allow the Company to register
any shares pursuant to this Agreement, the Company and the Holder
agree to attempt in good faith to restructure the Investment
Agreement and this Agreement in order to proceed with the intent
of such Agreements. During the period of renegotiation, the
Company will not suffer any adverse consequences under the
Investment Agreement or the Registration Rights Agreement.
(b) The Company shall use all commercially reasonable efforts to
have the Registration Statement(s) declared effective by the SEC
within one hundred and twenty (120) calendar days after the
Execution Date.
(c) The Company agrees not to include any other securities in the
Registration Statement covering the Registrable Securities without
Investor's prior written consent which Investor may not withhold.
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Section 3. RELATED OBLIGATIONS.
At such time as the Company is obligated to prepare and file the Registration
Statement with the SEC pursuant to Section 2(a), the Company will effect the
registration of the Registrable Securities in accordance with the intended
method of disposition thereof and, with respect thereto, the Company shall
have the following obligations:
(a) The Company shall use all commercially reasonable efforts to cause
such Registration Statement relating to the Registrable Securities
to become effective within one hundred and twenty (120) days after
the Execution Date and shall keep such Registration Statement
effective until the earlier to occur of the date on which (A)
the Investor shall have sold all the Registrable Securities; or
(B) the Investor has no right to acquire any additional shares
of Common Stock under the Investment Agreement (the "Registration
Period"). The Registration Statement (including any amendments
or supplements thereto and prospectuses contained therein) shall
not contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein, or necessary
to make the statements therein, in light of the circumstances in
which they were made, not misleading. The Company shall use all
commercially reasonable efforts to respond to all SEC comments
within seven (7) business days from receipt of such comments by
the Company. The Company shall use all commercially reasonable
efforts to cause the Registration Statement relating to the
Registrable Securities to become effective no later than five
(5) business days after notice from the SEC that the Registration
Statement may be declared effective. The Investor agrees to
provide all information which it is required by law to provide
to the Company, including the intended method of disposition of
the Registrable Securities, and the Company's obligations set
forth above shall be conditioned on the receipt of such
information.
(b) The Company shall prepare and file with the SEC such amendments
(including post-effective amendments) and supplements to the
Registration Statement and the prospectus used in connection
with such Registration Statement, which prospectus is to be filed
pursuant to Rule 424 promulgated under the 1933 Act, as may be
necessary to keep such Registration Statement effective during
the Registration Period, and, during such period, comply with
the provisions of the 1933 Act with respect to the disposition
of all Registrable Securities of the Company covered by such
Registration Statement until such time as all of such Registrable
Securities shall have been disposed of in accordance with the
intended methods of disposition by the Investor thereof as set
forth in such Registration Statement. In the event the number
of shares of Common Stock covered by the Registration Statement
filed pursuant to this Agreement is at any time insufficient to
cover all of the Registrable Securities, the Company shall amend
such Registration Statement, or file a new Registration Statement
(on the short form available therefor, if applicable), or both,
so as to cover all of the Registrable Securities, in each case,
as soon as practicable, but in any event within thirty (30)
calendar days after the necessity therefor arises (based on the
then Purchase Price of the Common Stock and other relevant factors
on which the Company reasonably elects to rely), assuming the
Company has sufficient authorized shares at that time, and if
it does not, within thirty (30) calendar days after such shares
are authorized. The Company shall use commercially reasonable
efforts to cause such amendment and/or new Registration Statement
to become effective as soon as practicable following the filing
thereof.
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(c) The Company shall make available to the Investor whose Registrable
Securities are included in any Registration Statement and its
legal counsel without charge (i) promptly after the same is
prepared and filed with the SEC at least one (1) copy of such
Registration Statement and any amendment(s) thereto, including
financial statements and schedules, all documents incorporated
therein by reference and all exhibits, the prospectus included
in such Registration Statement (including each preliminary
prospectus) and, with regards to such Registration Statement(s),
any correspondence by or on behalf of the Company to the SEC or
the staff of the SEC and any correspondence from the SEC or the
staff of the SEC to the Company or its representatives; (ii) upon
the effectiveness of any Registration Statement, the Company shall
make available copies of the prospectus, via XXXXX, included in
such Registration Statement and all amendments and supplements
thereto; and (iii) such other documents, including copies of any
preliminary or final prospectus, as the Investor may reasonably
request from time to time in order to facilitate the disposition
of the Registrable Securities.
(d) The Company shall use commercially reasonable efforts to (i)
register and qualify the Registrable Securities covered by the
Registration Statement under such other securities or "blue sky"
laws of such states in the United States as the Investor
reasonably requests; (ii) prepare and file in those jurisdictions,
such amendments (including post-effective amendments) and
supplements to such registrations and qualifications as may be
necessary to maintain the effectiveness thereof during the
Registration Period; (iii) take such other actions as may be
necessary to maintain such registrations and qualifications in
effect at all times during the Registration Period, and (iv) take
all other actions reasonably necessary or advisable to qualify the
Registrable Securities for sale in such jurisdictions; provided,
however, that the Company shall not be required in connection
therewith or as a condition thereto to (x) qualify to do business
in any jurisdiction where it would not otherwise be required to
qualify but for this Section 3(d), or (y) subject itself to
general taxation in any such jurisdiction. The Company shall
promptly notify the Investor who holds Registrable Securities of
the receipt by the Company of any notification with respect to
the suspension of the registration or qualification of any of
the Registrable Securities for sale under the securities or
"blue sky" laws of any jurisdiction in the United States or
its receipt of actual notice of the initiation or threatening
of any proceeding for such purpose.
(e) As promptly as practicable after becoming aware of such event,
the Company shall notify Investor in writing of the happening of
any event as a result of which the prospectus included in the
Registration Statement, as then in effect, includes an untrue
statement of a material fact or omission 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 ("Registration Default") and
use all diligent efforts to promptly prepare a supplement or
amendment to such Registration Statement and take any other
necessary steps to cure the Registration Default (which, if
such Registration Statement is on Form S-3, may consist of
a document to be filed by the Company with the SEC pursuant
to Section 13(a), 13(c), 14 or 15(d) of the 1934 Act (as
defined below) and to be incorporated by reference in the
prospectus) to correct such untrue statement or omission,
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and make available copies of such supplement or amendment
to the Investor. The Company shall also promptly notify the
Investor (i) when a prospectus or any prospectus supplement
or post-effective amendment has been filed, and when the
Registration Statement or any post-effective amendment has
become effective (the Company will prepare notification of
such effectiveness which shall be delivered to the Investor
on the same day of such effectiveness and by overnight mail),
additionally, the Company will promptly provide to the Investor,
a copy of the effectiveness order prepared by the SEC once it
is received by the Company; (ii) of any request by the SEC for
amendments or supplements to the Registration Statement or
related prospectus or related information, (iii) of the Company's
reasonable determination that a post-effective amendment to the
Registration Statement would be appropriate, (iv) in the event
the Registration Statement is no longer effective, or (v) if the
Registration Statement is stale as a result of the Company's
failure to timely file its financials or otherwise. The Company
acknowledges that its failure to cure the Registration Default
within ten (10) business days will cause the Investor to suffer
damages in an amount that will be difficult to ascertain.
Accordingly, the parties agree that it is appropriate to include
a provision for liquidated damages. The parties acknowledge and
agree that the liquidated damages provision set forth in this
section represents the parties' good faith effort to quantify
such damages and, as such, agree that the form and amount of
such liquidated damages are reasonable and will not constitute
a penalty. It is the intention of the parties that interest
payable under any of the terms of this Agreement shall not
exceed the maximum amount permitted under any applicable law.
If a law, which applies to this Agreement, which sets the
maximum interest amount, is finally interpreted so that the
interest in connection with this Agreement exceeds the permitted
limits, then: (1) any such interest shall be reduced by the amount
necessary to reduce the interest to the permitted limit; and (2)
any sums already collected (if any) from the Company which exceed
the permitted limits will be refunded to the Company. The
Investor may choose to make this refund by reducing the amount
that the Company owes under this Agreement or by making a direct
payment to the Company. If a refund reduces the amount that
the Company owes the Investor, the reduction will be treated as
a partial payment.
(f) The Company shall use all commercially reasonable efforts to
prevent the issuance of any stop order or other suspension of
effectiveness of the Registration Statement, or the suspension
of the qualification of any of the Registrable Securities for
sale in any jurisdiction and, if such an order or suspension is
issued, to obtain the withdrawal of such order or suspension at
the earliest possible moment and to notify the Investor holding
Registrable Securities being sold of the issuance of such order
and the resolution thereof or its receipt of actual notice of
the initiation or threat of any proceeding concerning the
effectiveness of the registration statement.
(g) The Company shall permit the Investor and one (1) legal counsel,
designated by the Investor, to review and comment upon the
Registration Statement and all amendments and supplements thereto
at least one (1) calendar day prior to their filing with the SEC.
However, any postponement of a filing of a Registration Statement
or any postponement of a request for acceleration or any
postponement of the effective date or effectiveness of a
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Registration Statement by written request of the Investor
(collectively, the "Investor's Delay") shall not act to trigger
any penalty of any kind, or any cash amount due or any in-kind
amount due the Investor from the Company under any and all
agreements of any nature or kind between the Company and the
Investor. The event(s) of an Investor's Delay shall act to
suspend all obligations of any kind or nature of the Company
under any and all agreements of any nature or kind between the
Company and the Investor.
(h) At the request of the Investor, the Company's counsel shall
furnish to the Investor an opinion letter confirming the
effectiveness of the registration statement. Such opinion
letter shall be issued as of the date of the effectiveness of
the registration statement and be in form suitable to the
Investor.
(i) The Company shall hold in confidence and not make any disclosure
of information concerning the Investor unless (i) disclosure of
such information is necessary to comply with federal or state
securities laws, (ii) the disclosure of such information is
necessary to avoid or correct a misstatement or omission in any
Registration Statement, (iii) the release of such information is
ordered pursuant to a subpoena or other final, non-appealable
order from a court or governmental body of competent jurisdiction,
or (iv) such information has been made generally available to
the public other than by disclosure in violation of this Agreement
or any other agreement. The Company agrees that it shall, upon
learning that disclosure of such information concerning the
Investor is sought in or by a court or governmental body of
competent jurisdiction or through other means, give prompt written
notice to the Investor and allow the Investor, at the Investor's
expense, to undertake appropriate action to prevent disclosure
of, or to obtain a protective order covering such information.
(j) The Company shall use all commercially reasonable efforts to
maintain designation and quotation of all the Registrable
Securities covered by any Registration Statement on the Principal
Market. If, despite the Company's commercially reasonable
efforts, the Company is unsuccessful in satisfying the preceding
sentence, it shall use commercially reasonable efforts to cause
all the Registrable Securities covered by any Registration
Statement to be listed on each other national securities exchange
and automated quotation system, if any, on which securities of
the same class or series issued by the Company are then listed,
if any, if the listing of such Registrable Securities is then
permitted under the rules of such exchange or system. The Company
shall pay all fees and expenses in connection with satisfying its
obligation under this Section 3(j).
(k) The Company shall cooperate with the Investor to facilitate the
prompt preparation and delivery of certificates representing the
Registrable Securities to be offered pursuant to the Registration
Statement and enable such certificates to be in such denominations
or amounts, as the case may be, as the Investor may reasonably
request (and after any sales of such Registrable Securities by the
Investor, such certificates not bearing any restrictive legend).
(l) The Company shall provide a transfer agent for all the Registrable
Securities not later than the effective date of the first
Registration Statement filed pursuant hereto.
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(m) If requested by the Investor, the Company shall (i) as soon as
reasonably practical incorporate in a prospectus supplement or
post-effective amendment such information as the Investor
reasonably determines should be included therein relating to the
sale and distribution of Registrable Securities, including,
without limitation, information with respect to the offering of
the Registrable Securities to be sold in such offering; (ii)
make all required filings of such prospectus supplement or
post-effective amendment as soon as reasonably possible after
being notified of the matters to be incorporated in such
prospectus supplement or post-effective amendment; and (iii)
supplement or make amendments to any Registration Statement if
reasonably requested by the Investor.
(n) The Company shall use all commercially reasonable efforts to
cause the Registrable Securities covered by the applicable
Registration Statement to be registered with or approved by such
other governmental agencies or authorities as may be necessary to
facilitate the disposition of such Registrable Securities.
(o) The Company shall otherwise use all commercially reasonable
efforts to comply with all applicable rules and regulations of
the SEC in connection with any registration hereunder.
(p) Within one (1) business day after the Registration Statement
which includes Registrable Securities is declared effective by the
SEC, the Company shall deliver to the transfer agent for such
Registrable Securities, with copies to the Investor, confirmation
that such Registration Statement has been declared effective by
the SEC.
(q) The Company shall take all other reasonable actions necessary to
expedite and facilitate disposition by the Investor of Registrable
Securities pursuant to the Registration Statement.
Section 4. OBLIGATIONS OF THE INVESTOR.
(a) At least five (5) calendar days prior to the first anticipated
filing date of the Registration Statement the Company shall
notify the Investor in writing of the information the Company
requires from the Investor for the Registration Statement. It
shall be a condition precedent to the obligations of the Company
to complete the registration pursuant to this Agreement with
respect to the Registrable Securities and the Investor agrees
to furnish to the Company that information regarding itself,
the Registrable Securities and the intended method of disposition
of the Registrable Securities as shall reasonably be required
to effect the registration of such Registrable Securities and
the Investor shall execute such documents in connection with such
registration as the Company may reasonably request. The Investor
covenants and agrees that, in connection with any sale of
Registrable Securities by it pursuant to the Registration
Statement, it shall comply with the "Plan of Distribution"
section of the then current prospectus relating to such
Registration Statement.
(b) The Investor, by its acceptance of the Registrable Securities,
agrees to cooperate with the Company as reasonably requested by
the Company in connection with the preparation and filing of any
Registration Statement hereunder, unless the Investor has
notified the Company in writing of an election to exclude all
of the Investor's Registrable Securities from such Registration
Statement.
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(c) The Investor agrees that, upon receipt of written notice from the
Company of the happening of any event of the kind described in
Section 3(f) or the first sentence of 3(e), the Investor will
immediately discontinue disposition of Registrable Securities
pursuant to any Registration Statement(s) covering such
Registrable Securities until the Investor's receipt of the
copies of the supplemented or amended prospectus contemplated
by Section 3(f) or the first sentence of 3(e)
Section 5. EXPENSES OF REGISTRATION.
All expenses, other than underwriting discounts and commissions and other
than as set forth in the Investment Agreement, incurred in connection with
registrations including comments, filings or qualifications pursuant to
Sections 2 and 3, including, without limitation, all registration, listing
and qualifications fees, printing and accounting fees, and fees and
disbursements of counsel for the Company or for the Investor shall be
paid by the Company.
Section 6. INDEMNIFICATION.
In the event any Registrable Securities are included in the Registration
Statement under this Agreement:
(a) To the fullest extent permitted by law, the Company, under this
Agreement, will, and hereby does, indemnify, hold harmless and
defend the Investor who holds Registrable Securities, the
directors, officers, partners, employees, counsel, agents,
representatives of, and each Person, if any, who controls,
any Investor within the meaning of the 1933 Act or the
Securities Exchange Act of 1934, as amended (the "1934 Act")
(each, an "Indemnified Person"), against any losses, claims,
damages, liabilities, judgments, fines, penalties, charges,
costs, attorneys' fees, amounts paid in settlement or expenses,
joint or several (collectively, "Claims"), incurred in
investigating, preparing or defending any action, claim, suit,
inquiry, proceeding, investigation or appeal taken from the
foregoing by or before any court or governmental, administrative
or other regulatory agency, body or the SEC, whether pending
or threatened, whether or not an indemnified party is or may be
a party thereto ("Indemnified Damages"), to which any of them
may become subject insofar as such Claims (or actions or
proceedings, whether commenced or threatened, in respect
thereof) arise out of or are based upon: (i) any untrue
statement or alleged untrue statement of a material fact in
the Registration Statement or any post-effective amendment
thereto or in any filing made in connection with the
qualification of the offering under the securities or other
"blue sky" laws of any jurisdiction in which the Investor has
requested in writing that the Company register or qualify the
Shares ("Blue Sky Filing"), or the omission or alleged omission
to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the
circumstances under which the statements therein were made,
not misleading, (ii) any untrue statement or alleged untrue
statement of a material fact contained in the final prospectus
(as amended or supplemented, if the Company files any amendment
thereof or supplement thereto with the SEC) or the omission or
alleged omission to state therein any material fact necessary
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to make the statements made therein, in light of the circumstances
under which the statements therein were made, not misleading,
or (iii) any violation or alleged violation by the Company of
the 1933 Act, the 1934 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 Registrable
Securities pursuant to the Registration Statement (the matters
in the foregoing clauses (i) through (iii) being, collectively,
"Violations"). Subject to the restrictions set forth in
Section 6(c) the Company shall reimburse the Investor and each
such controlling person, promptly as such expenses are incurred
and are due and payable, for any reasonable legal fees or other
reasonable expenses incurred by them in connection with
investigating or defending any such Claim. Notwithstanding
anything to the contrary contained herein, the indemnification
agreement contained in this Section 6(a): (i) shall not apply
to a Claim arising out of or based upon a Violation which is due
to the inclusion in the Registration Statement of the
information furnished to the Company by any Indemnified Person
expressly for use in connection with the preparation of the
Registration Statement or any such amendment thereof or
supplement thereto; (ii) shall not be available to the extent
such Claim is based on (a) a failure of the Investor to deliver
or to cause to be delivered the prospectus made available by
the Company or (b) the Indemnified Person's use of an incorrect
prospectus despite being promptly advised in advance by the
Company in writing not to use such incorrect prospectus;
(iii) any claims based on the manner of sale of the Registrable
Securities by the Investor or of the Investor's failure to
register as a dealer under applicable securities laws; (iv) any
omission of the Investor to notify the Company of any material
fact that should be stated in the Registration Statement or
prospectus relating to the Investor or the manner of sale; and
(v) any amounts paid in settlement of any Claim if such settlement
is effected without the prior written consent of the Company,
which consent shall not be unreasonably withheld. Such indemnity
shall remain in full force and effect regardless of any
investigation made by or on behalf of the Indemnified Person
and shall survive the resale of the Registrable Securities by
the Investor pursuant to the Registration Statement.
(b) In connection with any Registration Statement in which Investor
is participating, the Investor agrees to severally and jointly
indemnify, hold harmless and defend, to the same extent and in
the same manner as is set forth in Section 6(a), the Company, each
of its directors, each of its officers who signs the
Registration Statement, each Person, if any, who controls the
Company within the meaning of the 1933 Act or the 1934 Act and
the Company's agents (collectively and together with an
Indemnified Person, an "Indemnified Party"), against any Claim
or Indemnified Damages to which any of them may become subject,
under the 1933 Act, the 1934 Act or otherwise, insofar as such
Claim or Indemnified Damages arise out of or are based upon
any Violation, in each case to the extent, and only to the
extent, that such Violation is due to the inclusion in the
Registration Statement of the written information furnished to
the Company by the Investor expressly for use in connection with
such Registration Statement; and, subject to Section 6(c), the
Investor will reimburse any legal or other expenses reasonably
incurred by them in connection with investigating or defending
any such Claim; provided, however, that the indemnity agreement
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contained in this Section 6(b) and the agreement with respect
to contribution contained in Section 7 shall not apply to amounts
paid in settlement of any Claim if such settlement is effected
without the prior written consent of the Investor, which consent
shall not be unreasonably withheld; provided, further, however,
that the Investor shall only be liable under this Section 6(b)
for that amount of a Claim or Indemnified Damages as does not
exceed the net proceeds to such Investor as a result of the sale
of Registrable Securities pursuant to such Registration Statement.
Such indemnity shall remain in full force and effect regardless
of any investigation made by or on behalf of such Indemnified
Party and shall survive the resale of the Registrable Securities
by the Investor pursuant to the Registration Statement.
Notwithstanding anything to the contrary contained herein,
the indemnification agreement contained in this Section 6(b)
with respect to any preliminary prospectus shall not inure to
the benefit of any Indemnified Party if the untrue statement or
omission of material fact contained in the preliminary prospectus
were corrected on a timely basis in the prospectus, as then
amended or supplemented. This indemnification provision shall
apply separately to each Investor and liability hereunder shall
not be joint and several.
(c) Promptly after receipt by an Indemnified Person or Indemnified
Party under this Section 6 of notice of the commencement of any
action or proceeding (including any governmental action or
proceeding) involving a Claim, such Indemnified Person or
Indemnified Party shall, if a Claim in respect thereof is to be
made against any indemnifying party under this Section 6, deliver
to the indemnifying party a written notice of the commencement
thereof, and the indemnifying party shall have the right to
participate in, and, to the extent the indemnifying party so
desires, jointly with any other indemnifying party similarly
noticed, to assume control of the defense thereof with counsel
mutually satisfactory to the indemnifying party and the
Indemnified Person or the Indemnified Party, as the case may be;
provided, however, that an Indemnified Person or Indemnified
Party shall have the right to retain its own counsel with the
fees and expenses to be paid by the indemnifying party, if, in
the reasonable opinion of counsel retained by the Indemnified
Person or Indemnified Party, the representation by counsel of
the Indemnified Person or Indemnified Party and the indemnifying
party would be inappropriate due to actual or potential
differing interests between such Indemnified Person or Indemnified
Party and any other party represented by such counsel in such
proceeding. The indemnifying party shall pay for only one (1)
separate legal counsel for the Indemnified Persons or the
Indemnified Parties, as applicable, and such counsel shall
be selected by the Investor, if the Investor are entitled to
indemnification hereunder, or the Company, if the Company is
entitled to indemnification hereunder, as applicable. The
Indemnified Party or Indemnified Person shall cooperate fully
with the indemnifying party in connection with any negotiation
or defense of any such action or Claim by the indemnifying
party and shall furnish to the indemnifying party all
information reasonably available to the Indemnified Party or
Indemnified Person which relates to such action or Claim.
The indemnifying party shall keep the Indemnified Party or
Indemnified Person fully apprised at all times as to the
status of the defense or any settlement negotiations with
respect thereto. No indemnifying party shall be liable for
any settlement of any action, claim or proceeding effected
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without its written consent, provided, however, that the
indemnifying party shall not unreasonably withhold, delay or
condition its consent. No indemnifying party shall, without
the consent of the Indemnified Party or Indemnified Person,
consent to entry of any judgment or enter into any settlement
or other compromise which does not include as an unconditional
term thereof the giving by the claimant or plaintiff to such
Indemnified Party or Indemnified Person of a release from all
liability in respect to such Claim. Following indemnification
as provided for hereunder, the indemnifying party shall be
subrogated to all rights of the Indemnified Party or Indemnified
Person with respect to all third parties, firms or corporations
relating to the matter for which indemnification has been made.
The failure to deliver written notice to the indemnifying party
within a reasonable time of the commencement of any such action
shall not relieve such indemnifying party of any liability to the
Indemnified Person or Indemnified Party under this Section 6,
except to the extent that the indemnifying party is prejudiced
in its ability to defend such action.
(d) The indemnity agreements contained herein shall be in addition
to (i) any cause of action or similar right of the Indemnified
Party or Indemnified Person against the indemnifying party or
others, and (ii) any liabilities the indemnifying party may be
subject to pursuant to the law.
Section 7. CONTRIBUTION.
To the extent any indemnification by an indemnifying party is prohibited or
limited by law, the indemnifying party agrees to make the maximum contribution
with respect to any amounts for which it would otherwise be liable under
Section 6 to the fullest extent permitted by law; provided, however, that:
(i) no contribution shall be made under circumstances where the maker would
not have been liable for indemnification under the fault standards set forth
in Section 6; (ii) no seller of Registrable Securities guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the 0000 Xxx) shall
be entitled to contribution from any seller of Registrable Securities who was
not guilty of fraudulent misrepresentation; and (iii) contribution by any
seller of Registrable Securities shall be limited in amount to the net amount
of proceeds received by such seller from the sale of such Registrable
Securities.
Section 8. REPORTS UNDER THE 1934 ACT.
With a view to making available to the Investor the benefits of Rule 144
promulgated under the 1933 Act or any other similar rule or regulation of
the SEC that may at any time permit the Investor to sell securities of the
Company to the public without registration ("Rule 144"), provided that the
Investor holds any Registrable Securities are eligible for resale under
Rule 144 (k), the Company agrees to:
(a) make and keep public information available, as those terms are
understood and defined in Rule 144;
(b) file with the SEC in a timely manner all reports and other
documents required of the Company under the 1933 Act and the 1934
Act so long as the Company remains subject to such requirements
(it being understood that nothing herein shall limit the Company's
obligations under Section 5(c) of the Investment Agreement) and the
filing of such reports and other documents is required for the
applicable provisions of Rule 144; and
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(c) furnish to the Investor, promptly upon request, (i) a written
statement by the Company that it has complied with the reporting
requirements of Rule 144, the 1933 Act and the 1934 Act, (ii) a
copy of the most recent annual or quarterly report of the Company
and such other reports and documents so filed by the Company,
and (iii) such other information as may be reasonably requested
to permit the Investor to sell such securities pursuant to
Rule 144 without registration.
Section 9. NO ASSIGNMENT OF REGISTRATION RIGHTS.
The rights and obligations under this Agreement shall not be assignable.
Section 10. AMENDMENT OF REGISTRATION RIGHTS.
The provisions of this Agreement may be amended only with the written consent
of the Company and Investor.
Section 11. MISCELLANEOUS.
(a) Any notices or other communications required or permitted to be
given under the terms of this Agreement that must be in writing will
be deemed to have been delivered (i) upon receipt, when delivered
personally; (ii) upon receipt, when sent by facsimile (provided a
confirmation of transmission is mechanically or electronically
generated and kept on file by the sending party); or (iii) one (1)
day after deposit with a nationally recognized overnight delivery
service, in each case properly addressed to the party to receive the
same. The addresses and facsimile numbers for such communications
shall be:
If to the Company:
On The Go Healthcare, Inc.
00 Xxxxxxxx Xxxxxx, Xxxx #0
Xxxxxxx, Xxxxxxx, Xxxxxx X0X 0X0
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to the Investor:
Dutchess Private Equities Fund, Ltd.
00 Xxxxxxxxxxxx Xxx, Xxxxx 0
Xxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Each party shall provide five (5) business days prior notice to the other party
of any change in address, phone number or facsimile number.
(b) Failure of any party to exercise any right or remedy under this
Agreement or otherwise, or delay by a party in exercising such
right or remedy, shall not operate as a waiver thereof.
(c) This Agreement and the Transaction Documents constitute the
entire agreement among the parties hereto with respect to the
subject matter hereof and thereof. There are no restrictions,
promises, warranties or undertakings, other than those set
forth or referred to herein and therein.
(d) This Agreement and the Transaction Documents supersede all
prior agreements and understandings among the parties hereto
with respect to the subject matter hereof and thereof.
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(e) The headings in this Agreement are for convenience of reference
only and shall not limit or otherwise affect the meaning hereof.
Whenever required by the context of this Agreement, the singular
shall include the plural and masculine shall include the feminine.
This Agreement shall not be construed as if it had been prepared
by one of the parties, but rather as if all the parties had
prepared the same.
(f) This Agreement may be executed in two or more identical
counterparts, each of which shall be deemed an original but all
of which shall constitute one and the same agreement. This
Agreement, once executed by a party, may be delivered to the
other party hereto by facsimile transmission of a copy of this
Agreement bearing the signature of the party so delivering this
Agreement.
(g) Each party shall do and perform, or cause to be done and
performed, all such further acts and things, and shall execute
and deliver all such other agreements, certificates, instruments
and documents, as the other party may reasonably request in
order to carry out the intent and accomplish the purposes of
this Agreement and the consummation of the transactions
contemplated hereby.
(h) In case any provision of this Agreement is held by a court of
competent jurisdiction to be excessive in scope or otherwise
invalid or unenforceable, such provision shall be adjusted rather
than voided, if possible, so that it is enforceable to the
maximum extent possible, and the validity and enforceability of
the remaining provisions of this Agreement will not in any way be
affected or impaired thereby.
Section 12. DISPUTES SUBJECT TO ARBITRATION GOVERNED BY MASSACHUSETTS LAW
All disputes arising under this agreement shall be governed by and interpreted
in accordance with the laws of the Commonwealth of Massachusetts, without
regard to principles of conflict of laws. The parties to this agreement will
submit all disputes arising under this agreement to arbitration in Boston,
Massachusetts before a single arbitrator of the American Arbitration
Association ("AAA"). The arbitrator shall be selected by application of the
rules of the AAA, or by mutual agreement of the parties, except that such
arbitrator shall be an attorney admitted to practice law in the Commonwealth
of Massachusetts. No party to this agreement will challenge the jurisdiction
or venue provisions as provided in this section. Nothing contained herein
shall prevent the party from obtaining an injunction.
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*.*.*
SIGNATURE PAGE OF REGISTRATION RIGHTS AGREEMENT
Your signature on this Signature Page evidences your agreement to be bound by
the terms and conditions of the Investment Agreement and the Registration
Rights Agreement as of the date first written above.
The undersigned signatory hereby certifies that he has read and understands
the Registration Rights Agreement, and the representations made by the
undersigned in this Registration Rights Agreement are true and accurate,
and agrees to be bound by its terms.
DUTCHESS PRIVATE EQUITIES FUND, LTD.,
By: /s/Xxxxxxx X. Xxxxxxxx
------------------------------------
Xxxxxxx X. Xxxxxxxx, Director
ON THE GO HEALTHCARE, INC.
By: /s/Xxxxxx Xxxx
------------------------------------
Xxxxxx Xxxx, CEO
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