THIS WARRANT AND THE SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE OF THIS
WARRANT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR ANY STATE SECURITIES LAWS. THIS WARRANT AND THE COMMON STOCK
ISSUABLE UPON EXERCISE OF THIS WARRANT MAY NOT BE SOLD, OFFERED FOR SALE,
PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION
STATEMENT AS TO THIS WARRANT UNDER SAID ACT AND ANY APPLICABLE STATE
SECURITIES LAWS OR AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO ON
THE GO HEALTHCARE, INC. THAT SUCH REGISTRATION IS NOT REQUIRED.
Right to Purchase up to 1,420,000 Shares of Common Stock of
ON THE GO HEALTHCARE, INC.
(subject to adjustment as provided herein)
AMENDED AND RESTATED FORM OF COMMON STOCK PURCHASE WARRANT
No. _________________ Issue Date: July 14, 2005
ON THE GO HEALTHCARE, INC., a corporation organized under the laws of the State
of Delaware (the "Company"), hereby certifies that, for value received,
LAURUS MASTER FUND, LTD., or assigns (the "Holder"), is entitled, subject
to the terms set forth below, to purchase from the Company (as defined herein)
from and after the Issue Date of this Warrant and at any time or from time to
time before 5:00 p.m., New York time, through the close of business
July 14, 2012 (the "Expiration Date"), up to 1,420,000 fully paid and
nonassessable shares of Common Stock (as hereinafter defined), $0.01 par value
per share, at the applicable Exercise Price per share (as defined below).
The number and character of such shares of Common Stock and the applicable
Exercise Price per share are subject to adjustment as provided herein.
This Warrant amends and restates in its entirety (and is given in substitution
for and not in satisfaction of) that certain Warrant to purchase 1,420,000
Shares of Common Stock of On The Go Healthcare, Inc. made by the Company in
favor of Holder on July 14, 2005 and amended and restated on January 13, 2006.
As used herein the following terms, unless the context otherwise requires,
have the following respective meanings:
(a) The term "Company" shall include On The Go HealthCare, Inc. and
any person or entity which shall succeed, or assume the
obligations of, On The Go HealthCare, Inc. hereunder.
(b) The term "Common Stock" includes (i) the Company's Common Stock,
par value $0.001 per share; and (ii) any other securities into
which or for which any of the securities described in the preceding
clause (i) may be converted or exchanged pursuant to a plan of
recapitalization, reorganization, merger, sale of assets or ot
herwise.
(c) The term "Other Securities" refers to any stock (other than Common
Stock) and other securities of the Company or any other person
(corporate or otherwise) which the holder of the Warrant at any
time shall be entitled to receive, or shall have received, on the
exercise of the Warrant, in lieu of or in addition to Common Stock,
or which at any time shall be issuable or shall have been issued
in exchange for or in replacement of Common Stock or Other
Securities pursuant to Section 4 or otherwise.
(i) The "Exercise Price" applicable under this Warrant shall
be $.65.
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1. Exercise of Warrant.
1.1 Number of Shares Issuable upon Exercise. From and after the date hereof
through and including the Expiration Date, the Holder shall be entitled
to receive, upon exercise of this Warrant in whole or in part, by
delivery of an original or fax copy of an exercise notice in the form
attached hereto as Exhibit A (the "Exercise Notice"), shares of Common
Stock of the Company, subject to adjustment pursuant to Section 4.
1.2 Company Acknowledgment. The Company will, at the time of the exercise
of this Warrant, upon the request of the holder hereof acknowledge in
writing its continuing obligation to afford to such holder any rights
to which such holder shall continue to be entitled after such exercise
in accordance with the provisions of this Warrant. If the holder shall
fail to make any such request, such failure shall not affect the
continuing obligation of the Company to afford to such holder any
such rights.
1.3 Trustee for Warrant Holders. In the event that a bank or trust company
shall have been appointed as trustee for the holders of this Warrant
pursuant to Subsection 3.2, such bank or trust company shall have all
the powers and duties of a warrant agent (as hereinafter described) and
shall accept, in its own name for the account of the Company or such
successor person as may be entitled thereto, all amounts otherwise
payable to the Company or such successor, as the case may be, on
exercise of this Warrant pursuant to this Section 1.
2. Procedure for Exercise.
2.1 Delivery of Stock Certificates, Etc., on Exercise. The Company agrees
that the shares of Common Stock purchased upon exercise of this Warrant
shall be deemed to be issued to the Holder as the record owner of such
shares as of the close of business on the date on which this Warrant
shall have been surrendered and payment made for such shares in
accordance herewith. As soon as practicable after the exercise of
this Warrant in full or in part, and in any event within three (3)
business days thereafter, the Company at its expense (including the
payment by it of any applicable issue taxes) will cause to be issued
in the name of and delivered to the Holder, or as such Holder (upon
payment by such Holder of any applicable transfer taxes) may direct
in compliance with applicable securities laws, a certificate or
certificates for the number of duly and validly issued, fully paid and
nonassessable shares of Common Stock (or Other Securities) to which
such Holder shall be entitled on such exercise pursuant to Section 1
or otherwise.
2.2 Exercise.
(a) Payment may be made in cash or by certified or official bank check
payable to the order of the Company or other immediate funds equal
to the applicable aggregate Exercise Price, for the number of
Common Shares specified in such Exercise Notice (as such exercise
number shall be adjusted to reflect any adjustment in the total
number of shares of Common Stock issuable to the Holder per the
terms of this Warrant) and the Holder shall thereupon be entitled
to receive the number of duly authorized, validly issued,
fully-paid and non-assessable shares of Common Stock (or Other
Securities) determined as provided herein.
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3. Effect of Reorganization, Etc.; Adjustment of Exercise Price.
3.1 Reorganization, Consolidation, Merger, Etc. In case at any time or from
time to time, the Company shall (a) effect a reorganization, (b)
consolidate with or merge into any other person, or (c) transfer all
or substantially all of its properties or assets to any other person
under any plan or arrangement contemplating the dissolution of the
Company, then, in each such case, as a condition to the consummation
of such a transaction, proper and adequate provision shall be made by
the Company whereby the Holder, on the exercise hereof as provided in
Section 1 at any time after the consummation of such reorganization,
consolidation or merger or the effective date of such dissolution, as
the case may be, shall receive, in lieu of the Common Stock (or Other
Securities) issuable on such exercise prior to such consummation or
such effective date, the stock and other securities and property
(including cash) to which such Holder would have been entitled upon
such consummation or in connection with such dissolution, as the case
may be, if such Holder had so exercised this Warrant, immediately
prior thereto, all subject to further adjustment thereafter as
provided in Section 4.
3.2 Dissolution. In the event of any dissolution of the Company following
the transfer of all or substantially all of its properties or assets, the
Company, concurrently with any distributions made to holders of its Common
Stock, shall at its expense deliver or cause to be delivered to the Holder
the stock and other securities and property (including cash, where
applicable) receivable by the Holder pursuant to Section 3.1, or, if
the Holder shall so instruct the Company, to a bank or trust company
specified by the Holder and having its principal office in New York, NY
as trustee for the Holder.
3.3 Continuation of Terms. Upon any reorganization, consolidation, merger or
transfer (and any dissolution following any transfer) referred to in this
Section 3, this Warrant shall continue in full force and effect and the
terms hereof shall be applicable to the shares of stock and other
securities and property receivable on the exercise of this Warrant after
the consummation of such reorganization, consolidation or merger or the
effective date of dissolution following any such transfer, as the case
may be, and shall be binding upon the issuer of any such stock or other
securities, including, in the case of any such transfer, the person
acquiring all or substantially all of the properties or assets of the
Company, whether or not such person shall have expressly assumed the
terms of this Warrant as provided in Section 4. In the event this
Warrant does not continue in full force and effect after the
consummation of the transactions described in this Section 3, then
the Company's securities and property (including cash, where
applicable) receivable by the Holder will be delivered to the Holder
or the Trustee as contemplated by Section 3.2.
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4. Extraordinary Events Regarding Common Stock. In the event that the
Company shall (a) issue additional shares of the Common Stock as a dividend
or other distribution on outstanding Common Stock or any preferred stock
issued by the Company, (b) subdivide its outstanding shares of Common
Stock, (c) combine its outstanding shares of the Common Stock into a
smaller number of shares of the Common Stock, then, in each such event,
the Exercise Price shall, simultaneously with the happening of such event,
be adjusted by multiplying the then Exercise Price by a fraction, the
numerator of which shall be the number of shares of Common Stock
outstanding immediately prior to such event and the denominator of which
shall be the number of shares of Common Stock outstanding immediately
after such event, and the product so obtained shall thereafter be the
Exercise Price then in effect. The Exercise Price, as so adjusted,
shall be readjusted in the same manner upon the happening of any
successive event or events described herein in this Section 4. The
number of shares of Common Stock that the holder shall thereafter, on
the exercise hereof as provided in Section 1, be entitled to receive
shall be adjusted to a number determined by multiplying the number of
shares of Common Stock that would otherwise (but for the provisions of
this Section 4) be issuable on such exercise by a fraction of which (a)
the numerator is the Exercise Price that would otherwise (but for the
provisions of this Section 4) be in effect, and (b) the denominator is
the Exercise Price in effect on the date of such exercise (taking into
account the provisions of this Section 4).
5. Certificate as to Adjustments. In each case of any adjustment or
readjustment in the shares of Common Stock (or Other Securities) issuable
on the exercise of this Warrant, the Company at its expense will promptly
cause its Chief Financial Officer or other appropriate designee to compute
such adjustment or readjustment in accordance with the terms of this
Warrant and prepare a certificate setting forth such adjustment or
readjustment and showing in detail the facts upon which such adjustment
or readjustment is based, including a statement of (a) the consideration
received or receivable by the Company for any additional shares of Common
Stock (or Other Securities) issued or sold or deemed to have been issued
or sold, (b) the number of shares of Common Stock (or Other Securities)
outstanding or deemed to be outstanding, and (c) the Exercise Price and
the number of shares of Common Stock to be received upon exercise of this
Warrant, in effect immediately prior to such adjustment or readjustment
and as adjusted or readjusted as provided in this Warrant. The Company
will forthwith mail a copy of each such certificate to the holder and any
Warrant agent of the Company (appointed pursuant to Section 11 hereof).
6. Reservation of Stock, Etc., Issuable on Exercise of Warrant. The Company
will at all times reserve and keep available, solely for issuance and
delivery on the exercise of this Warrant, shares of Common Stock (or Other
Securities) from time to time issuable on the exercise of this Warrant.
4
7. Assignment; Exchange of Warrant. Subject to compliance with applicable
securities laws, this Warrant, and the rights evidenced hereby, may be
transferred by any registered holder hereof (a "Transferor") in whole or
in part. On the surrender for exchange of this Warrant, with the
Transferor's endorsement in the form of Exhibit B attached hereto (the
"Transferor Endorsement Form") and together with evidence reasonably
satisfactory to the Company demonstrating compliance with applicable
securities laws, which shall include, without limitation, a legal opinion
from the Transferor's counsel (at the Company's expense) that such
transfer is exempt from the registration requirements of applicable
securities laws, the Company at its expense (but with payment by the
Transferor of any applicable transfer taxes) will issue and deliver to
or on the order of the Transferor thereof a new Warrant of like tenor,
in the name of the Transferor and/or the transferee(s) specified in such
Transferor Endorsement Form (each a "Transferee"), calling in the aggregate
on the face or faces thereof for the number of shares of Common Stock
called for on the face or faces of the Warrant so surrendered by the
Transferor.
8. Replacement of Warrant. On receipt of evidence reasonably satisfactory to
the Company of the loss, theft, destruction or mutilation of this Warrant
and, in the case of any such loss, theft or destruction of this Warrant, on
delivery of an indemnity agreement or security reasonably satisfactory in
form and amount to the Company or, in the case of any such mutilation, on
surrender and cancellation of this Warrant, the Company at its expense
will execute and deliver, in lieu thereof, a new Warrant of like tenor.
9. Registration Rights. The Holder has been granted certain registration
rights by the Company. These registration rights are set forth in a
Registration Rights Agreement entered into by the Company and Holder
dated as of the date hereof, as the same may be amended, modified and/or
supplemented from time to time.
10. Maximum Exercise. Notwithstanding anything contained herein to the
contrary, the Holder shall not be entitled to exercise this Warrant
in connection with that number of shares of Common Stock which would
exceed the difference between (i) 4.99% of the issued and outstanding
shares of Common Stock and (ii) the number of shares of Common Stock
beneficially owned by the Holder. For purposes of the immediately
preceding sentence, beneficial ownership shall be determined in
accordance with Section 13(d) of the Securities Exchange Act of 1934,
as amended, and Regulation 13d-3 thereunder. The limitation described
in the first sentence of this Section 10 shall automatically become
null and void following notice to the Company upon the occurrence and
during the continuance of an Event of Default (as defined in the
Security and Purchase Agreement dated as of the date hereof among the
Holder, the Company and various subsidiaries of the Company, as
amended, modified, restated and/or supplemented from time to time),
or upon 75 days prior notice to the Company. The Holder shall be
solely responsible for determining its ownership pursuant to this
Section 10. If the Holder delivers a notice to exercise its warrants,
in whole or in part, to the Company, that notice shall be deemed a
waiver of this Section 10. The Holder shall be solely responsible for
determining its ownership pursuant to this Section 10.
11. Warrant Agent. The Company may appoint an agent for the purpose of
issuing Common Stock (or Other Securities) on the exercise of this Warrant
pursuant to Section 1, exchanging this Warrant pursuant to Section 7, and
replacing this Warrant pursuant to Section 8, or any of the foregoing, and
thereafter any such issuance, exchange or replacement, as the case may be,
shall be made at such office by such agent.
5
12. Transfer on the Company's Books. Until this Warrant is transferred on
the books of the Company, the Company may treat the registered holder
hereof as the absolute owner hereof for all purposes, notwithstanding
any notice to the contrary.
13. Notices, Etc. All notices and other communications from the Company to
the Holder shall be mailed by first class registered or certified mail,
postage prepaid, at such address as may have been furnished to the
Company in writing by such Holder or, until any such Holder furnishes
to the Company an address, then to, and at the address of, the last
Holder who has so furnished an address to the Company.
14. Miscellaneous. This Warrant and any term hereof may be changed, waived,
discharged or terminated only by an instrument in writing signed by the
party against which enforcement of such change, waiver, discharge or
termination is sought. THIS WARRANT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAWS. ANY ACTION BROUGHT CONCERNING THE
TRANSACTIONS CONTEMPLATED BY THIS WARRANT SHALL BE BROUGHT ONLY IN STATE
COURTS OF NEW YORK OR IN THE FEDERAL COURTS LOCATED IN THE STATE OF NEW
YORK; PROVIDED, HOWEVER, THAT THE HOLDER MAY CHOOSE TO WAIVE THIS
PROVISION AND BRING AN ACTION OUTSIDE THE STATE OF NEW YORK. The
individuals executing this Warrant on behalf of the Company agree to
submit to the jurisdiction of such courts and waive trial by jury.
The prevailing party shall be entitled to recover from the other party
its reasonable attorneys' fees and costs. In the event that any
provision of this Warrant is invalid or unenforceable under any
applicable statute or rule of law, then such provision shall be deemed
inoperative to the extent that it may conflict therewith and shall be
deemed modified to conform with such statute or rule of law. Any such
provision which may prove invalid or unenforceable under any law shall
not affect the validity or enforceability of any other provision of
this Warrant. The headings in this Warrant are for purposes of reference
only, and shall not limit or otherwise affect any of the terms hereof.
The invalidity or unenforceability of any provision hereof shall in no
way affect the validity or enforceability of any other provision hereof.
The Company acknowledges that legal counsel participated in the
preparation of this Warrant and, therefore, stipulates that the rule of
construction that ambiguities are to be resolved against the drafting
party shall not be applied in the interpretation of this Warrant to
favor any party against the other party.
15. Judgment Currency.
(a) If for the purpose of obtaining or enforcing judgment against
the Company in any court in any jurisdiction it becomes necessary
to convert into any other currency (such other currency being
hereinafter in this Section 15 referred to as the "Judgment
Currency") an amount due in US dollars under this Warrant, the
conversion shall be made at the Exchange Rate prevailing on the
business day immediately preceding:
(i) the date actual payment of the amount due, in the case
of any proceeding in the courts of New York or in the
courts of any other jurisdiction that will give effect
to such conversion being made on such date: or
(ii) the date on which the foreign court determines, in the
case of any proceeding in the courts of any other
jurisdiction (the date as of which such conversion
is made pursuant to this Section 15(a)(ii) being
hereinafter referred to as the "Judgment Conversion
Date")
6
(b) If in the case of any proceeding in the court of any jurisdiction
referred to in Section 155(a)(ii) above, there is a change in the
Exchange Rate prevailing between the Judgment Conversion Date and
the date of actual payment of the amount due, the applicable
party shall pay such adjusted amount as may be necessary to
ensure that the amount paid in the Judgment Currency, when
converted at the Exchange Rate prevailing on the date of payment,
will produce the amount of US dollars which could have been
purchased with the amount of Judgment Currency stipulated in the
judgment or judicial order at the Exchange Rate prevailing on the
Judgment Conversion Date.
Any amount due from the Company under this provision shall be due as a
separate debt and shall not be affected by judgment being obtained for
any other amounts due under or in respect of this Warrant
[BALANCE OF PAGE INTENTIONALLY LEFT BLANK; SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the Company has executed this Amended and Restated Warrant
as of the date first written above.
ON THE GO HEALTHCARE, INC.
WITNESS: /s/Xxxxxx Xxxxx
------------------------
By:/s/Xxxxxx Xxxx
-------------------------
Name:Xxxxxx Xxxx
Title: CEO
8
EXHIBIT A
FORM OF SUBSCRIPTION
(To Be Signed Only On Exercise Of Warrant)
TO: On The Go HealthCare, Inc.
00 Xxxxxxxx Xxx Xxxx #0
Xxxxxxx, Xxxxxxx, X0X 0X0
Attention: Chief Financial Officer
The undersigned, pursuant to the provisions set forth in the attached Warrant
(No.____), hereby irrevocably elects to purchase (check applicable box):______
________ shares of the common stock covered by such warrant; or ________
the maximum number of shares of common stock covered by such warrant pursuant
to the cashless exercise procedure set forth in Section 2.The undersigned
herewith makes payment of the full Exercise Price for such shares at the price
per share provided for in such Warrant, which is $___________. Such payment
takes the form of (check applicable box or boxes):________ $__________ in
lawful money of the United States; and/or________ the cancellation of
such portion of the attached Warrant as is exercisable for a total of _______
shares of Common Stock (using a Fair Market Value of $_______ per share for
purposes of this calculation); and/or________ the cancellation of such
number of shares of Common Stock as is necessary, in accordance with the
formula set forth in Section 2.2, to exercise this Warrant with respect to the
maximum number of shares of Common Stock purchasable pursuant to the cashless
exercise procedure set forth in Section 2.The undersigned requests that the
certificates for such shares be issued in the name of, and delivered to
______________________________________________ whose address
is __________________________________________________________________________.
The undersigned represents and warrants that all offers and sales by the
undersigned of the securities issuable upon exercise of the within Warrant
shall be made pursuant to registration of the Common Stock under the
Securities Act of 1933, as amended (the "Securities Act") or pursuant to an
exemption from registration under the Securities Act.
Dated:
(Signature must conform to name of holder as specified on the face of the
Warrant)
Address:
9
EXHIBIT B
FORM OF TRANSFEROR ENDORSEMENT
(To Be Signed Only On Transfer Of Warrant)
For value received, the undersigned hereby sells, assigns, and transfers unto
the person(s) named below under the heading "Transferees" the right represented
by the within Warrant to purchase the percentage and number of shares of Common
Stock of On The Go HealthCare, Inc.into which the within Warrant relates
specified under the headings "Percentage Transferred" and "Number
Transferred," respectively, opposite the name(s) of such person(s) and
appoints each such person Attorney to transfer its respective right on the
books of On The Go HealthCare, Inc.with full power of substitution in the
premises.
Transferees
Address
Percentage Transferred
Number
Transferred
Dated:
(Signature must conform to name of holder as specified on the face of
the Warrant)
Address:
SIGNED IN THE PRESENCE OF:
(Name)
ACCEPTED AND AGREED:
[TRANSFEREE]
(Name)
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