Tuesday, February 26, 2008 4:14:27 PM
News out ---S-8 --- Stock options---grants --- 200,000,000 shares --- Here it is:
As filed with the Securities and Exchange Commission on February 26, 2008
Registration No. ____________
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
ON THE GO HEALTHCARE, INC.
(Exact name of registrant specified in its charter)
Delaware 98-0231687
(State of other jurisdiction (IRS Employer
of incorporation) Identification Number)
85 Corstate Avenue, Unit #1, Concord, Ontario, Canada L4K 4Y2
(Address of principal executive offices)
ON THE GO HEALTHCARE, INC.
February 2008 Stock Option Plan
(Full title of the plan)
Stuart Turk, President
85 Corstate Avenue, Unit #1
Concord, Ontario
Canada L4K 4Y2
(Name and address of agent for service)
(905) 760-2987
(Telephone number of agent for service)
Copies of communications to:
Amy Trombly
1320 Centre Street
Suite 202
Newton, MA 02459
(617) 243-0060
CALCULATION OF REGISTRATION FEE
Title of Amount Proposed Maximum Proposed Maximum Amount of
Securities to to be offering Price Registered Aggregate Registration
be Registered Registered(1) per Share(2) offering Price (1) Fee
--------------- ----------- --------------- -------------------- ------------
Common Stock,
$0.0001 par value 200,000,000 $ 0.0012 $ 240,000 $ 9.43
1) Pursuant to Rule 416(a) of the Securities Act of 1933, as amended
(the "Act"),this registration statement shall be deemed to cover additional
securities that may be offered or issued to prevent dilution resulting
from stock splits, stock dividends or similar transactions.
<PAGE>
2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(C) on the basis of the average of the high and low
prices of the common stock of the Registrant as traded in the over-the-
counter market and reported on the OTC Electronic Bulletin Board of the
National Association of Securities Dealers on February 19, 2008.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information
In accordance with the Instructional Note to Part I of Form S-8 as promulgated
by the Securities and Exchange Commission, the information specified by Part I
of Form S-8 has been omitted from this Registration Statement on Form S-8.
Item 2. Registrant Information and Employee Plan Annual Information.
We will provide without charge to each person to whom a copy of a
Section 10(a) prospectus hereunder is delivered, upon the oral or written
request of such person, a copy of any document incorporated in this
Registration Statement by reference. We will also make available
without charge, upon oral or written request, other documents required to be
delivered pursuant to Rule 428(b). Requests for such information should be
directed to: On The Go Healthcare, Inc. 85 Corstate Ave., Unit #1, Concord,
Ontario, Canada, L4K 4Y2. Phone: (905) 760-2987.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents By Reference
The following documents we filed with the Securities and Exchange Commission
are incorporated herein by reference:
(a) Our Annual Report on Form 10-KSB for the fiscal year ended July 31, 2007,
filed on October 29, 2007, pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934, as amended, (the "Exchange Act").
(b) All other reports filed pursuant to 13(a) or 15(d) of the Exchange Act
since the end of the fiscal year covered by the financial statements in
the Form 10-KSB referred to in (a) above, which consists of a Form 10-QSB
filed on December 17, 2007.
(c) All other reports filed pursuant to 13(a) or 15(d) of the Exchange Act
since the end of the fiscal year covered by the financial statements in
the Form 10-KSB referred to in (a) above.
All documents subsequently filed by the registrant pursuant to Sections 13(a),
13(c), 14, and 15(d) of the Securities Exchange Act of 1934, prior to the
filing of a post-effective amendment which indicates that all securities
offered have been sold or which deregisters all securities then remaining
unsold shall be deemed to be incorporated in this registration statement by
reference and to be a part hereof from the date of filing of such documents.
Any statement contained in this registration statement, in a supplement to
this registration statement or in a document incorporated by reference herein,
shall be deemed to be modified or superseded for purposes of this registration
statement to the extent that a statement contained herein or in any
subsequently filed supplement to this registration statement or in any document
that is subsequently incorporated by reference herein modifies or supersedes
such statement. Any statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this registration
statement.
<PAGE>
Item 4. Description of Securities
The registrant is authorized to issue 1,000,000,000 shares of common stock,
par value $0.0001 per share.
Miscellaneous Rights and Provisions. There are no preemptive rights,
subscription rights, or redemption provisions relating to the shares and
none of the shares carries any liability for further calls.
Dividends. Holders of shares are entitled to receive dividends in cash,
property or shares when and if the Board of Directors declares dividends out
of funds legally available therefore.
Voting. A quorum for any meeting of stockholders is a majority of shares then
issued and outstanding and entitled to be voted at the meeting. Holders of
shares are entitled to one vote, either in person or by proxy, per share.
Liquidation, dissolution, winding up. Upon our liquidation, dissolution or
winding up, any assets will be distributed to the holders of shares after
payment or provision for payment of all our debts, obligations or liabilities.
The registrant's common stock is quoted on the Over the Counter Bulletin Board.
Item 5. Interests of Named Experts and Counsel
Amy M. Trombly serves as the registrant's securities counsel. Ms. Trombly
currently serves as trustee to a trust holding shares of common stock for the
benefit of certain shareholders of On the Go Healthcare, Inc. Ms. Trombly has
voting and dispositive control over the shares in accordance with the terms of
the trust, however, she does not have a financial interest in the trust other
than nominal fees for serving as its trustee. Ms. Trombly disclaims beneficial
ownership of the shares.
Other than as described above, no named expert or counsel was hired on a
contingent basis, will receive a direct or indirect interest in the registrant
or was a promoter, underwriter, voting trustee, director, officer or employee
of the registrant. No expert or counsel has any contingent based agreement with
the registrant or any other interest in or connection to the registrant.
Item 6. Indemnification of Directors and Officers
Section 145 of the Delaware General Corporation Law, as amended, authorizes
the registrant to indemnify any director or officer, under certain prescribed
circumstances, and subject to certain limitations against certain costs
and expenses, including attorney's fees actually and reasonably incurred
in connection with any action, suit or proceeding, whether civil, criminal,
administrative or investigative, to which a person is a party by reason of
being a director or officer of the registrant if it is determined that such
person acted in accordance with the applicable standard of conduct set
forth in such statutory provisions. The registrant's Amended and Restated
Certificate of Incorporation, as amended, contains provisions relating to the
indemnification of directors and officers and its By-Laws extends such
indemnities to the full extent permitted by Delaware law.
The registrant may also purchase and maintain insurance for the benefit of any
director or officer, which may cover claims for which it could not indemnify
such persons.
Item 7. Exemption from Registration Claimed
Not Applicable.
Item 8. Exhibits
The following exhibits are filed as part of this Registration Statement:
5.1 Opinion of Amy M. Trombly, Esq.
10.1 On The Go Healthcare, Inc. February 2008 Stock Option Plan, dated
February 26, 2008 (filed herewith).
23.1 Consent of Danziger Hochman Partners LLP.
23.2 Consent of Counsel (included in Exhibit 5.1 hereto).
Item 9. Undertakings
(a) The undersigned registrant hereby undertakes:
1. To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement:
(i) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement
or any material change to such information in the registration
statement.
2. For the purpose of determining any liability under the Securities Act of
1933, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
3. To remove from registration by means of a post-effective amendment any of
the securities being registered which remain unsold at the termination of
the offering.
4. For the purpose of determining liability of the registrant under the
Securities Act of 1933 to any purchaser in the initial distribution of
the securities:
The undersigned registrant undertakes that in a primary offering of
securities of the undersigned registrant pursuant to this registration
statement, regardless of the underwriting method used to sell the
securities to the purchaser by means of any of the following
communications, the undersigned registrant will be a seller to the
purchaser and will be considered to offer or sell such securities to
such purchaser:
(i) Any preliminary prospectus or prospectus of the undersigned
registrant relating to the offering required to be filed
pursuant to Rule 424 (section 230.424 of this chapter);
(ii) Any free writing prospectus relating to the offering prepared by
or on behalf of the undersigned registrant or used or referred to
by the undersigned registrant;
(iii) The portion of any other free writing prospectus relating to the
offering containing material information about the undersigned
registrant or its securities provided by or on behalf of the
undersigned registrant; and
(iv) Any other communication that is an offer in the offering made
by the undersigned registrant to the purchaser.
<PAGE>
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of
the registrant's annual report pursuant to section 13(a) or section 15(d)
of the Securities Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide
offering thereof.
(h) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons
of the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as
expressed in the Act and is, therefore, unenforceable. In the event that
a claim for indemnification against such liabilities (other than the
payment by the registrant of expenses incurred or paid by a director,
officer or controlling person of the registrant in the successful defense
of any action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered,
the registrant will, unless in the opinion of its counsel the matter has
been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question of whether such indemnification by it is against
public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the city of Concord, Province of Ontario, Country of Canada,
on February 26, 2008.
ON THE GO HEALTHCARE, INC.
By: /s/Stuart Turk
--------------------------
Stuart Turk, President and
Chief Executive Officer
In accordance with the requirements of the Securities Act of 1933,
this registration statement was signed by the following persons in the
capacities and in the dates stated:
Signature Title Date
/s/Stuart Turk February 26, 2008
--------------------- President, Chief Executive Officer, -----------------
Stuart Turk Chairman and Director
/s/Evan Schwartzberg February 26, 2008
--------------------- Chief Financial and Accounting Officer -----------------
Evan Schwartzberg
/s/Ralph Magid February 26, 2008
--------------------- Director -----------------
Ralph Magid
<PAGE>
</TEXT>
</DOCUMENT>
Exhibit 5.1
AMY TROMBLY, ESQ.
1320 Centre Street, Suite 202
Newton, MA 02459
(617)243-0060
February 26, 2008
On The Go Healthcare, Inc.
85 Corstate Avenue, Unit #1
Concord, Ontario, Canada L4K 4Y2
Re: Registration Statement on Form S-8
Gentlemen:
I have acted as counsel to On The Go Healthcare, Inc., a Delaware corporation
(the "Company"), in connection with the preparation and filing with the
Securities and Exchange Commission of a Registration Statement on Form S-8
(the "Registration Statement"), pursuant to which the Company is registering
the issuance under the Securities Act of 1933, as amended, of a total of
200,000,000 shares (the "Shares") of its common stock, par value $0.0001
(the "Common Stock"). This opinion is being rendered in connection with
the filing of the Registration Statement. All capitalized terms used herein
and not otherwise defined shall have the respective meanings given to them
in the Registration Statement.
In connection with this opinion, I have examined the Company's Amended and
Restated Certificate of Incorporation, as amended, and Bylaws, both as
currently in effect and such other records of the corporate proceedings of
the Company and certificates of the Company's officers as I deemed relevant;
and the Registration Statement and the exhibits thereto.
In my examination, I have assumed the genuineness of all signatures, the
legal capacity of natural persons, the authenticity of all documents
submitted to me as originals, the conformity to original documents of all
documents submitted to me as certified or photostatic copies and the
authenticity of the originals of such copies.
Based upon the foregoing, I am of the opinion that (i) the Shares have been
duly and validly authorized by the Company and (ii) the Shares, when issued
as described in the Registration Statement, will be duly and validly issued,
fully paid and non-assessable shares of Common Stock.
My opinion is limited to the Delaware General Corporation Law and federal
securities laws of the United States and I express no opinion with respect
to the laws of any other jurisdiction. No opinion is expressed herein with
respect to the qualification of the Shares under the securities or blue sky
laws of any state or any foreign jurisdiction. This opinion is limited to
the matters stated herein. I disavow any obligation to update this opinion
or advise you of any changes in my opinion in the event of changes in the
applicable laws or facts or if additional or newly discovered information
is brought to my attention.
I understand that you wish to file this opinion as an exhibit to the
Registration Statement, and I hereby consent thereto.
Very truly yours,
/s/ Amy Trombly, Esq.
----------------------
Amy Trombly, Esq.
<PAGE>
</TEXT>
</DOCUMENT>
Exhibit 10.1
ON THE GO HEALTHCARE, INC.
February 2008 STOCK OPTION PLAN
Article I. Purposes of the Plan
The purposes of this February 2008 Stock Option Plan are to attract and retain
the best available personnel, to provide additional incentive to Employees,
Directors and Consultants, and to promote the success of the Company's
business.
Article II. Definitions
As used herein, the following definitions shall apply:
2.01 "Administrator" means the Board or any of the Committees appointed
to administer the Plan.
2.02 "Applicable Laws" means the legal requirements relating to the
administration of share incentive plans, if any, under applicable
provisions of the U.S. federal securities laws, the U.S. state
corporate and securities laws, the Code, the rules of any applicable
stock exchange or national market system, and the laws and rules of
any jurisdiction outside the U.S. applicable to Options including
Canadian laws, SARs or Restricted Shares granted to residents
therein.
2.03 "Board" means the Board of Directors of the Company.
2.04 "Code" means the U.S. Internal Revenue Code of 1986, as amended.
2.05 "Committee" means any committee appointed by the Board to administer
the Plan, provided that the Committee shall consist of not fewer than
two (2) members of the Board, and shall, following the Registration
Date and, solely to the extent required to comply with Applicable Laws,
be composed of "non-employee" directors within the meaning of
Rule 16b-3 as promulgated under the Exchange Act and "outside
directors" within the meaning of the Code. To the extent the Plan
is administered by the Board, the term "Committee" shall refer to
the Board.
2.06 "Common Share" means a share of US$0.0001 par value of the Company.
2.07 "Company" means On the Go Healthcare, Inc., a company incorporated
under the laws of Delaware.
2.08 "Consultant" means any person (other than an Employee or a Director)
who is engaged by the Company or any Related Entity to render
consulting or advisory services to the Company or such Related Entity
or any other selective persons the Administrator determines provides,
directly or indirectly, bona fide value to the Company or any Related
Entity.
2.09 "Continuous Service" means that the provision of services to the Company
or a Related Entity in any capacity of Employee, Director, or
Consultant, is not interrupted or terminated. Continuous Service
shall not be considered interrupted in the case of:
<PAGE>
(i) any approved leave of absence;
(ii) transfers among the Company, any Related Entity, or any
successor, in any capacity of Employee, Director, or
Consultant; or
(iii) any change in status as long as the individual remains in the
service of the Company or a Related Entity in any capacity of
Employee, Director, or Consultant (except as otherwise provided
in the Option Agreement).
An approved leave of absence shall include sick leave, maternity leave,
or any other authorized personal leave.
2.10 "Corporate Transaction" means any of the following transactions to which
the Company is a party:
(i) a merger or consolidation or reorganization in which the Company
is not the surviving entity; or
(ii) the sale, transfer or other disposition of all or substantially
all of the assets of the Company (including the share capital of
the Company's Subsidiaries).
2.11 "Director" means a member of the Board or the board of directors of any
Related Entity.
2.12 "Disability" means that an Optionee is permanently unable to carry out
the responsibilities and functions of the position held by the Optionee
by reason of any medically determinable physical or mental impairment
as determined by the Administrator. An Optionee will not be considered
to have incurred a Disability unless he or she furnishes proof of such
impairment sufficient to satisfy the Administrator in its discretion.
2.13 "Effective Date" means the date on which a Grant of Options and/or SARs
and/or Restricted Shares shall take effect in accordance with Option
Agreement.
2.14 "Employee" means any person, including an Officer or Director, who is an
employee of the Company or any Related Entity. The payment of an
independent director's fee by the Company or a Related Entity shall
not be sufficient to constitute "employment" of such person by the
Company.
2.15 "Exchange Act" means the U.S. Securities Exchange Act of 1934, as
amended.
2.16 "Fair Market Value" means, as of any date, the value of Common Shares
as follows:
(a) Where there exists a public market for the Common Shares, the Fair
Market Value shall be:
(i) the closing price for a Share for the last market trading
day prior to the time of the determination (or, if no
closing price was reported on that date, on the last
trading date on which a closing price was reported) on
the stock exchange determined by the Administrator to be
the primary market for the Common Shares or the Nasdaq
National Market, whichever is applicable; or
<PAGE>
(ii) if the Common Shares are not traded on any such exchange,
or national market system, the average of the closing
bid and asked prices of a Share on the Nasdaq Small
Cap Market for the day prior to the time of the
determination (or, if no such prices were reported on
that date, on the last date on which such prices were
reported), in each case, as reported in The Wall Street
Journal or such other source as the Administrator deems
reliable.
(b) In the absence of an established market for the Common Shares of
the type described in (a), above, the Fair Market Value thereof
shall be determined by the Administrator in good faith by reference
to:
(i) the valuation price made by an independent appraiser
appointed by the Administrator;
(ii) the placing price of the latest private placement of the
Shares; and
(iii) the development of the Company's business operations
since such latest private placement.
2.17 "Grant" means the number of Options and/or Stock Appreciation Rights
and/or Restricted Shares and/or Restricted Share Units granted to an
Optionee at any time in accordance with Article VI hereof.
2.18 "Immediate Family" means any child, stepchild, grandchild, parent,
stepparent, grandparent, spouse, former spouse, sibling, niece, nephew,
mother-in-law, father-in-law, son-in-law, daughter-in-law,
brother-in-law, or sister-in-law, including adoptive relationships,
any person sharing the Optionee's household (other than a tenant or
employee), a trust in which these persons (or the Optionee) have more
than fifty percent (50%) of the beneficial interest, a foundation in
which these persons (or the Optionee) control the management of
assets, and any other entity in which these persons (or the Optionee)
own more than fifty percent (50%) of the voting interests.
2.19 "Liquidation Event" means a complete dissolution or liquidation of the
Company.
2.20 "Non-Statutory Stock Option" means an Option not intended to qualify as
an Incentive Stock Option within the meaning of Section 422 of the Code.
2.21 "Officer" means a person who is an officer of the Company or a Related
Entity within the meaning of Section 16 of the Exchange Act and the
rules and regulations promulgated thereunder or, to the extent
applicable, other Applicable Laws.
2.22 "Option" means an option to purchase Shares pursuant to an Option
Agreement granted under the Plan.
2.23 "Optionee" means an Employee, Director, or Consultant who receives a
Grant under the Plan.
2.24 "Option Agreement" means the written agreement evidencing the grant of
an option and/or SARs and/or Restricted Shares executed by the Company
and the Optionee, including any amendments thereto.
2.25 "Option Period" means the period commencing on the Effective Date of a
Grant and ending no later than on the day prior to the tenth
anniversary of such Effective Date.
<PAGE>
2.26 "Parent" means a "parent corporation", whether now or hereafter
existing, as defined in Section 424(e) of the Code or, to the extent
applicable, other Applicable Laws.
2.27 "Plan" means this February 2008 Stock Option Plan of On the Go
Healthcare, Inc., dated February 26, 2008, as set forth herein and
as may be amended from time to time.
2.28 "Registration Date" means the first to occur of:
(a) the closing of the first sale to the general public of:
(i) the Common Shares; or
(ii) the same class of securities of a successor corporation
(or its Parent) issued pursuant to a Corporate Transaction
in exchange for or in substitution of the Common Shares,
pursuant to a registration statement filed with and
declared effective by the Securities and Exchange
Commission under the Securities Act or an equivalent
thereof in a jurisdiction outside the U.S.;
and
(b) in the event of a Corporate Transaction, the date of the
consummation of the Corporate Transaction if the same class of
securities of the successor corporation (or its Parent) issuable in
such Corporate Transaction shall have been sold to the general
public pursuant to a registration statement filed with and declared
effective by the Securities and Exchange Commission under the
Securities Act or an equivalent thereof in a jurisdiction outside
the U.S., on or prior to the date of consummation of such Corporate
Transaction.
2.29 "Related Entity" means any Parent, Subsidiary and any other corporation,
partnership, limited liability company or other business entity in
which the Company, its Parent or a Subsidiary holds a substantial
ownership interest, directly or indirectly.
2.30 "Securities Act" means the U.S. Securities Act of 1933, as amended.
2.31 "SAR" means a Stock Appreciation Right granted to an Optionee under
this Plan.
2.32 "Shares" mean Common Shares of the Company.
2.33 "Subsidiary" means a "subsidiary corporation", whether now or hereafter
existing, as defined in Section 424(f) of the Code or, to the extent
applicable, other Applicable Laws.
Article III. Shares Subject to the Plan
3.01 Subject to the provisions of Section 10.01 below, the maximum aggregate
number of Shares with respect to which Grants may be made under the
Plan shall not exceed 200,000,000 shares.
<PAGE>
3.02 Any Shares covered by a Grant (or portion of a Grant) which is forfeited
or cancelled, expires or is settled in cash or otherwise, shall be
deemed not to have been issued for purposes of determining the maximum
aggregate number of Shares which may be issued under the Plan. If any
unissued Shares are retained by the Company upon exercise of a Grant in
order to satisfy the exercise price for such Grant or any withholding
taxes due with respect to such Grant, such retained Shares subject to
such Grant shall become available for future issuance under the Plan
(unless the Plan has terminated). Shares that actually have been
issued under the Plan pursuant to a Grant shall not be returned to
the Plan and shall not become available for future issuance under
the Plan.
Article IV. Administration of the Plan
4.01 Plan Administrator. The Committee shall administer the Plan in
accordance with its terms.
4.02 Powers of the Administrator. Subject to Applicable Laws and the
provisions of the Plan (including any other powers given to the
Administrator hereunder), and except as otherwise provided by the Board,
the Administrator shall have the authority, in its discretion:
(a) to determine the eligibility of Grants, and to authorize
the Chief Executive Officer and Chief Financial Officer to
determine number of shares of each Grant;
(b) to approve forms of Option Agreements for use under the Plan;
(c) to determine to grant Options with or without SARs;
(d) to determine the Exercise Price applicable to the Share covered
by each Option;
(e) to determine the Option Period applicable thereto;
(f) to establish additional terms, conditions, rules or procedures to
accommodate the rules or laws of applicable foreign jurisdictions
and to afford Optionees favorable treatment under such rules or
laws; provided, however, that no Grant shall be granted under any
such additional terms, conditions, rules or procedures with terms
or conditions which are inconsistent with the provisions of the
Plan;
(g) to amend the terms of any outstanding Grant granted under the Plan,
and to reduce the exercise price of any Option or SAR to the then
current Fair Market Value if the Fair Market Value of the Shares
covered by such Grant shall have declined since the date the Grant
was granted and to make any other amendments or adjustments to any
Grant that the Administrator determines, in its discretion and
under the authority granted to it under this Plan, to be necessary
or advisable, provided that the exercise price shall never fall
below the nominal or par value of the Shares, and that any such
amendment or adjustment that would adversely affect the Optionee's
rights under an outstanding Grant shall not be made without the
Optionee's written consent;
(h) to construe and interpret the terms of the Plan and Grants,
including without limitation, any notice of Grant or Option
Agreement granted pursuant to the Plan; and
(j) to take such other action, not inconsistent with the terms of the
Plan, as the Administrator deems appropriate.
<PAGE>
Article V. Eligibility
Options may be granted to Employees, Directors, and Consultants. An Employee,
Director, or Consultant who has been granted a Grant may, if otherwise
eligible, be granted additional Grants. Grants may be granted to such
Employees, Directors, or Consultants who are residing in foreign jurisdictions
as the Administrator may determine from time to time.
Article VI. Type of Grants; Terms and Conditions of Grants
Grants under the Plan may consist of one or more of the following: Options,
SARs, or Restricted Shares (which may be granted as Restricted Share units).
Restricted Stock may be registered on a Form S-8 prior or subsequent to any
grants. Awards of Restricted Shares may provide the Optionee with dividends
or dividend equivalents and voting rights prior to vesting. Additionally,
shares of common stock may be granted as free-trading shares if the shares of
common stock are registered on a Form S-8. Each Grant shall be designated in
the Option Agreement.
6.01 Options
(a) Option Designation. Options shall be designated as Non-Statutory
Stock Option.
(b) Option Exercise Price. The exercise price of an Option shall be
as follows:
(i) granted to a person who, at the time of the grant of such
Non-Statutory Stock Option owns shares representing more
than ten percent (10%) of the voting power of all classes
of shares of the Company or any Parent or Subsidiary, the
per Share exercise price shall be not less than one
hundred percent (100%) of the Fair Market Value per
Share on the date of grant; or
(ii) granted to a person other than a person described in the
preceding paragraph, the per Share exercise price shall
be not less than eighty five percent (85%) of the Fair
Market Value per Share on the date of grant.
(c) Consideration. In addition to any other types of consideration the
Administrator may determine, the Administrator is authorized to
accept as consideration for Shares issued under the Plan the
following:
(i) cash or check
(ii) cancellation of indebtedness owed by the Company to the
Optionee;
(iii) promissory note;
(iv) Shares previously acquired by the Optionee valued at the
Fair Market Value at the time of the exercise;
(v) withholding from delivery to the Optionee that number of
whole Shares having a Fair Market Value at the time of
the exercise equal to the exercise price payable to the
Company upon exercise of the Option; or
(vi) any combination of the foregoing methods of payment.
(d) Easy-Sale Exercise.
<PAGE>
(i) Exercise/Sale. An Option Agreement may, but need not,
provide that, if Shares are publicly traded, all or part
of the exercise price of an Option and any withholding
taxes may be paid by the delivery (on a form prescribed
by the Company) of an irrevocable direction to a
securities broker approved by the Company to sell
Shares and to deliver all or part of the sales proceeds
to the Company.
(ii) Exercise/Pledge. An Option Agreement may, but need not,
provide that, if Shares are publicly traded, all or part
of the exercise price of an Option and any withholding
taxes may be paid by the delivery (on a form prescribed
by the Company) of an irrevocable direction to pledge
Shares to a securities broker or lender approved by the
Company, as security for a loan, and to deliver all or
part of the loan proceeds to the Company.
6.02 SARs.
(a) Grant. SARs may be granted in tandem with an Option, in addition
to an Option, or may be freestanding and unrelated to an Option.
SARs granted in tandem or in addition to an Option may be granted
either at the same time as the Option or at a later time. SARs
shall vest and become exercisable at a rate determined by the
Administrator, and shall remain exercisable for such period as
specified by the Administrator. A SAR shall entitle the Optionee
to receive from the Company an amount equal to the excess of the
Fair Market Value of a Share on the exercise of the SAR over the
Fair Market Value of a Share on the date of grant or, in the case
of a SAR granted in tandem with an Option, the per Share exercise
price applicable to such Option.
(b) Settlement. The Administrator shall determine, in its sole
Discretion, whether the SAR shall be settled in cash, Shares, or a
combination of cash and Shares. In no event may any Optionee
receive grants of SARs with respect to more than 350,000 Shares in
any calendar year.
6.03 Restricted Shares.
(a) Grant. Restricted Shares may be granted in the form of Shares or
share units having a value equal to an identical number of Shares.
The employment conditions and the length of the period for vesting
of Restricted Shares shall be established by the Administrator at
time of grant. In the event that a share certificate is issued in
respect of Restricted Shares, such certificate shall be registered
in the name of the Optionee but shall be held by the Company until
the end of the restricted period. During the restricted period,
Restricted Shares may not be sold, assigned, transferred or
otherwise disposed of, or pledged or hypothecated as collateral
for a loan or as security for the performance of any obligation
or for any other purpose as the Administrator shall determine.
(b) Settlement. The Administrator shall determine, in its sole
Discretion, whether Restricted Shares granted in the form of share
units shall be paid in cash, Shares, or a combination of cash and
Shares.
<PAGE>
6.04 Conditions of Grants; Vesting, and Repurchase Rights. Subject to the
terms of the Plan, the Administrator shall determine the provisions,
terms, and conditions of each Grant including, but not limited to, the
Grant vesting schedule, repurchase provisions, rights of first refusal,
forfeiture provisions, form of payment (cash, Shares, or other
consideration) upon settlement of the Grant, payment contingencies,
and satisfaction of any performance criteria, provided, however,
unless specifically provided otherwise in the relevant Option Agreement,
one fourth (1/4th) of the Grant shall vest at each of 1st, 2nd, 3rd,
and 4th anniversaries following the issuance of such Grant so long as
the Optionee provides Continuous Service to the Company.
6.05 Acquisitions and Other Transactions. The Administrator may issue Grants
under the Plan in settlement, assumption or substitution for,
outstanding Grants or obligations to grant future Grants in connection
with the Company or a Related Entity acquiring another entity, an
interest in another entity or an additional interest in a Related
Entity whether by merger, share purchase, asset purchase, or other form
of transaction.
6.06 Deferral of Grant Payment. The Administrator may establish one or more
programs under the Plan to permit selected Optionees the opportunity to
elect to defer receipt of consideration upon exercise of a Grant,
satisfaction of performance criteria, or other event that absent the
election would entitle the Optionee to payment or receipt of Shares or
other consideration under a Grant. The Administrator may establish the
election procedures, the timing of such elections, the mechanisms for
payments of, and accrual of interest or other earnings, if any, on
amounts, Shares or other consideration so deferred, and such other
terms, conditions, rules and procedures that the Administrator deems
advisable for the administration of any such deferral program.
6.07 Award Exchange Programs. The Administrator may establish one or more
programs under the Plan to permit selected Optionees to exchange a
Grant under the Plan for one or more other types of Grants under the
Plan on such terms and conditions as determined by the Administrator
from time to time.
6.08 Separate Programs. The Administrator may establish one or more separate
programs under the Plan for the purpose of issuing particular forms of
Grants to one or more classes of Optionees on such terms and conditions
as determined by the Administrator from time to time.
6.09 Early Exercise. The Option Agreement may, but need not, include a
provision whereby the Optionee may elect, at any time while being an
Employee, Director, or Consultant, to exercise any part or all of the
Grant prior to full vesting of the Grant. Any unvested Shares received
pursuant to such exercise may be subject to a repurchase right in favor
of the Company or a Related Entity or to any other restriction the
Administrator determines to be appropriate.
6.10 Option Period. The Option Period shall be the term stated in the Option
Agreement up to ten (10) years from the Effective Date of Grant thereof.
6.11 Transferability of Grants. No Grant may be sold, pledged, assigned,
hypothecated, transferred, or disposed of in any manner other than by
will or by the laws of descent or distribution and may be exercised,
during the lifetime of the Optionee, only by the Optionee; provided,
however, during the lifetime of the Optionee, SARs may be transferred
by gift to members of the Optionee's Immediate Family to the extent and
manner determined by the Administrator.
6.12 Time of Grants. The date of grant of a Grant shall, for all purposes,
be the date on which the Administrator makes the determination to grant
such Grant, or such other date as is determined by the Administrator.
Notice of the grant determination shall be given to each Employee,
Director, or Consultant to whom a Grant is so granted within a
reasonable time after the date of such grant.
<PAGE>
6.13 Buyout Provisions. The Administrator may at any time offer to buy out
for a payment in cash or Shares or other consideration, any Grant
previously granted based on such terms and conditions as the
Administrator shall establish and communicate to the Optionee at
the time such offer is made.
Article VII. Withholding
The Company shall have the right to deduct from any payment to be made pursuant
to the Plan the amount of any taxes required by law to be withheld therefrom,
or to require an Optionee to pay to the Company such amount required to be
withheld prior to the issuance or delivery of any Shares or the payment of cash
under the Plan. The Administrator may, in its discretion, permit an Optionee
to elect to satisfy such withholding obligation by having the Company retain
the number of Shares whose Fair Market Value equals the amount required to be
withheld. Any fraction of a Share required to satisfy such obligation shall
be disregarded and the amount due shall instead be paid in cash by the
Optionee.
Article VIII. Exercise of Grant
8.01 Procedure for Exercise; Rights as a Shareholder.
(a) Any Grant granted hereunder shall be exercisable at such times
and under such conditions as determined by the Administrator under
the terms of the Plan and specified in the Option Agreement.
(b) A Grant shall be deemed to be exercised when written notice of such
exercise has been given to the Company, as in a form required
under the applicable Option Agreement, in accordance with the
terms of the Grant by the person entitled to exercise the Grant
and full payment for the Shares is made with respect to which the
Grant is exercised. Until the issuance (as evidenced by the
appropriate entry on the books of the Company or of a duly
authorized transfer agent of the Company) of the share certificate
evidencing such Shares, no right to vote or receive dividends or
any other rights as a shareholder shall exist with respect to
Shares subject to a Grant, notwithstanding the exercise of an
Option or other Grant. The Company shall issue (or cause to be
issued) such share certificate as soon as practicable following
the exercise of the Grant. No adjustment will be made for a
dividend or other right for which the record date is prior to the
date the share certificate is issued, except as provided in the
Option Agreement or Article X, below.
8.02 Exercise of Option or SAR Following Termination of Continuous Service.
If the Optionee's Continuous Service is terminated for any reason other
than death or Disability, such Optionee shall have the right to
exercise the Option or SAR at any time within thirty (30) days (or such
other period of time not exceeding three (3) months as is determined
by the Administrator at the time of granting the Option), following the
date such Optionee ceases his or her Continuous Service to the extent
that such Optionee was entitled to exercise the Option or SAR at the
date of such termination; provided, however, that no Option or SAR
shall be exercisable after the expiration of the term set forth in the
applicable Option Agreement. To the extent that such Optionee was not
entitled to exercise the Option or SAR at the date of such termination,
or if such Optionee does not exercise such Option or SAR (which such
Optionee was entitled to exercise) within the time specified herein,
the Option or SAR shall terminate.
<PAGE>
8.03 Death or Disability of Optionee. If an Optionee's Continuous Service
is terminated due to death or Disability, the Option or SAR may be
exercised at any time within six (6) months following the date of death
or termination of employment due to Disability, in the case of death, by
the Optionee's estate or by a person who acquired the right to exercise
the Option or SAR by bequest or inheritance, or, in the case of
Disability, by the Optionee, but in any case only to the extent the
Optionee was entitled to exercise the Option or SAR at the date of his
or her termination of Continuous Service by death or Disability;
provided, however, that no Option or SAR shall be exercisable after the
expiration of the term set forth in the Option Agreement. To the extent
that such Optionee was not entitled to exercise such Option or SAR at
the date of his or her termination of employment by death or Disability
or if such Option or SAR is not exercised (to the extent it could be
exercised) within the time specified herein, the Option or SAR shall
terminate.
8.04 Extension of Time to Exercise. Notwithstanding anything to the contrary
in this Article VIII, the Administrator may at any time and from time to
time prior to the termination of a Non-statutory Stock Option, with
the consent of the Optionee, extend the period of time during which
the Optionee may exercise his or her Non-statutory Stock Option
following the date the Optionee ceases Continuous Services; provided,
however, that:
(a) the maximum period of time during which a Non-statutory Stock
Option shall be exercisable following such termination date shall
not exceed an aggregate of six (6) months;
(b) the Non-statutory Stock Option shall not become exercisable after
the expiration of the term of such Option as set forth in the
Option Agreement as a result of such extension; and
(c) notwithstanding any extension of time during which the
Non-statutory Stock Option may be exercised, such Option, unless
otherwise amended by the Administrator, shall only be exercisable
to the extent to which the Optionee was entitled to exercise it
on the date the Optionee ceased Continuous Services.
To the extent that such Optionee was not entitled to exercise the
Option at the date of such termination, or if such Optionee does not
exercise an Option which the Optionee was entitled to exercise within
the time specified herein, the Option shall terminate.
Article IX. Conditions Upon Issuance of Shares
9.01 No Violation of Law. Shares shall not be issued pursuant to a Grant or
the exercise of a Grant unless the exercise of such Grant and the
issuance and delivery of such Shares pursuant thereto shall comply with
all Applicable Laws, and the Administrator may further subject any
issuance of Shares to the approval of counsel for the Company with
respect to such compliance.
9.02 Execution of Documents. As a condition to the exercise of a Grant,
the Administrator may require the person exercising such Grant to
execute an investment representation statement acceptable to the
Company or a share purchase agreement acceptable to the Company, each
in forms approved by the Administrator from time to time, in addition
to any other instrument the Administrator deems necessary or
advisable.
<PAGE>
Article X. Adjustments Upon Changes in Capitalization or Corporate
Transaction
10.01 Adjustments upon Changes in Capitalization. Subject to any required
action by the shareholders of the Company, the number of Shares covered
by each outstanding Grant, and the number of Shares which have been
authorized for issuance under the Plan but as to which no Grants have
yet been granted or which have been returned to the Plan, the exercise
or purchase price of each such outstanding Grant, as well as any other
terms that the Administrator determines require adjustment shall be
proportionately adjusted for:
(a) any increase or decrease in the number of issued Shares resulting
from a share split, reverse share split, share dividend,
combination or reclassification of the Shares, or similar
transaction affecting the Shares;
(b) any other increase or decrease in the number of issued Shares
effected without receipt of consideration by the Company; or
(c) as the Administrator may determine in its discretion, any other
transaction with respect to Shares to which Section 424(a) of the
Code applies or a similar transaction; provided, however, that
conversion of any convertible securities of the Company shall not
be deemed to have been "effected without receipt of consideration."
Such adjustment shall be made by the Administrator and its
determination shall be final, binding and conclusive. Except as the
Administrator determines, no issuance by the Company of shares of any
class, or securities convertible into shares of any class, shall
affect, and no adjustment by reason hereof shall be made with respect
to, the number or price of Shares subject to a Grant.
10.02 Corporate Transaction. In the event of a proposed Corporate
Transaction, subject to the actual consummation of the proposed
transaction, each outstanding Grant shall automatically become fully
vested and exercisable, unless the Grant is assumed or substituted with
an equivalent option or right by the successor corporation or the Parent
or Subsidiary thereof. If the successor corporation refuses to assume
or substitute for the Grant, the Administrator shall notify the Optionee
that the Grant shall be fully vested and exercisable with respect to all
of the Shares underlying the Grant (including Shares as to which it
would not otherwise be vested or exercisable) for a period of fifteen
(15) days from the date of such notice. If the Grant thus becomes fully
vested and exercisable but is not exercised during this fifteen (15) day
period, it shall terminate immediately prior to the effective time of
such Corporate Transaction. For the purposes of this Section 10.02,
the Grant shall be considered assumed or substituted with an equivalent
option or right if, in connection with the Corporate Transaction, the
Grant is replaced with a comparable option or right with respect to
shares of the successor corporation or Parent or Subsidiary thereof or
is replaced with a cash incentive program of the successor corporation
or Parent or Subsidiary thereof which preserves the compensation element
of such Grant existing at the time of the Corporate Transaction and
provides for subsequent payout in accordance with the same vesting
schedule applicable to such Grant. The determination of Grant
comparability above shall be made by the Administrator and its
determination shall be final, binding and conclusive.
<PAGE>
10.03 Liquidation Event. In the event of a proposed Liquidation Event, the
Administrator shall notify each Optionee of the proposed event at least
twenty (20) days prior to the proposed effective date of the Liquidation
Event. The Administrator in its discretion may provide for an Optionee
to have the right to exercise his or her Grant until ten (10) days prior
to the proposed effective date for the Liquidation Event with respect
to all Shares underlying the Grant (including Shares as to which it
would not otherwise be vested or exercisable), subject to the actual
completion of the Liquidation Event at the time and in the manner
contemplated. In addition, the Administrator may provide that any
Company repurchase option applicable to any Shares issued upon grant
or an exercise of a Grant shall lapse as to all Shares, subject to the
actual completion of the Liquidation Event at the time and in the manner
contemplated. Any unexercised Grant shall terminate immediately prior
to effective time of the Liquidation Event.
Article XI. Effective Date and Term of Plan
The Plan, and any amendments to the Plan, shall become effective upon its
adoption by the Board. It shall continue in effect until February 21, 2018,
unless sooner terminated. Subject to Applicable Laws, Grants may be granted
under the Plan upon its becoming effective.
Article XII. Amendment, Suspension or Termination of the Plan
The Board may at any time amend, suspend or terminate the Plan. No Grant may
be granted during any suspension of the Plan or after termination of the Plan.
Any amendment, suspension or termination of the Plan (including termination of
the Plan pursuant to this Article XII) shall not affect Grants already granted,
and such Grants shall remain in full force and effect as if the Plan had not
been amended, suspended or terminated, unless mutually agreed otherwise between
the Optionee and the Administrator, which agreement must be in writing and
signed by the Optionee and the Company.
Article XIII. Availability of Shares; No Issuance in Violation of Law
13.01 Availability of Shares. The Company, during the term of the Plan, will
at all times keep available such number of unissued Shares as shall be
sufficient to satisfy the requirements of the Plan.
13.02 No Issuance in Violation of Law. The inability of the Company to obtain
authority from any regulatory body having jurisdiction under Applicable
Law, which authority is deemed by the Company's counsel to be necessary
to the lawful issuance and sale of any Shares hereunder, relieve the
Company of any liability in respect of the failure to issue or sell
such Shares as to which such requisite authority shall not have been
obtained.
Article XIV. No Effect on Terms of Employment/Consulting Relationship
The Plan shall not confer upon any Optionee any right with respect to the
Optionee's Continuous Service, nor shall it interfere in any way with his
or her right or the Company's or a Related Entity's right to terminate the
Optionee's Continuous Service at any time, with or without cause.
<PAGE>
Article XV. No Effect on Retirement and Other Benefit Plans
Except as specifically required by law or provided in a retirement or other
benefit plan of the Company or a Related Entity, Grants shall not be deemed
compensation for purposes of computing benefits or contributions under any
retirement plan of the Company or a Related Entity, and shall not affect any
benefits under any other benefit plan of any kind or any benefit plan
subsequently instituted under which the availability or amount of benefits is
related to level of compensation.
Article XVI. Liability of the Company; Consents
16.01 Consents. Optionee shall be responsible for obtaining any governmental
or other official consent that may be required by any country or
jurisdiction in order to permit the grant or exercise of any Grant.
Neither the Company nor any Related Entity shall be responsible for any
failure by an Optionee to obtain such consent or for any tax or other
liability to which an Optionee may become subject to as a result of his
or her participation in the Plan.
<PAGE>
</TEXT>
</DOCUMENT>
Exhibit 23.1
[Letterhead of DANZIGER HOCHMAN PARTNERS LLP]
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
On The Go Healthcare, Inc.
85 Corstate Avenue, Unit #1
Concord, Ontario L4K 4Y2
We consent to the incorporation by reference in this Registration Statement on
Form S-8 of On The Go Healthcare, Inc. of our report, dated October 15, 2007
relating to our audit of the consolidated financial statements, which appears
in the Annual Report on Form 10-KSB of On The Go Healthcare, Inc. for the year
ended July 31, 2007.
/s/ Danziger Hochman Partners LLP
----------------------------------
Danziger Hochman Partners LLP
Toronto, Canada
February 26, 2008
<PAGE>
</TEXT>
</DOCUMENT>
As filed with the Securities and Exchange Commission on February 26, 2008
Registration No. ____________
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
ON THE GO HEALTHCARE, INC.
(Exact name of registrant specified in its charter)
Delaware 98-0231687
(State of other jurisdiction (IRS Employer
of incorporation) Identification Number)
85 Corstate Avenue, Unit #1, Concord, Ontario, Canada L4K 4Y2
(Address of principal executive offices)
ON THE GO HEALTHCARE, INC.
February 2008 Stock Option Plan
(Full title of the plan)
Stuart Turk, President
85 Corstate Avenue, Unit #1
Concord, Ontario
Canada L4K 4Y2
(Name and address of agent for service)
(905) 760-2987
(Telephone number of agent for service)
Copies of communications to:
Amy Trombly
1320 Centre Street
Suite 202
Newton, MA 02459
(617) 243-0060
CALCULATION OF REGISTRATION FEE
Title of Amount Proposed Maximum Proposed Maximum Amount of
Securities to to be offering Price Registered Aggregate Registration
be Registered Registered(1) per Share(2) offering Price (1) Fee
--------------- ----------- --------------- -------------------- ------------
Common Stock,
$0.0001 par value 200,000,000 $ 0.0012 $ 240,000 $ 9.43
1) Pursuant to Rule 416(a) of the Securities Act of 1933, as amended
(the "Act"),this registration statement shall be deemed to cover additional
securities that may be offered or issued to prevent dilution resulting
from stock splits, stock dividends or similar transactions.
<PAGE>
2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(C) on the basis of the average of the high and low
prices of the common stock of the Registrant as traded in the over-the-
counter market and reported on the OTC Electronic Bulletin Board of the
National Association of Securities Dealers on February 19, 2008.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information
In accordance with the Instructional Note to Part I of Form S-8 as promulgated
by the Securities and Exchange Commission, the information specified by Part I
of Form S-8 has been omitted from this Registration Statement on Form S-8.
Item 2. Registrant Information and Employee Plan Annual Information.
We will provide without charge to each person to whom a copy of a
Section 10(a) prospectus hereunder is delivered, upon the oral or written
request of such person, a copy of any document incorporated in this
Registration Statement by reference. We will also make available
without charge, upon oral or written request, other documents required to be
delivered pursuant to Rule 428(b). Requests for such information should be
directed to: On The Go Healthcare, Inc. 85 Corstate Ave., Unit #1, Concord,
Ontario, Canada, L4K 4Y2. Phone: (905) 760-2987.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents By Reference
The following documents we filed with the Securities and Exchange Commission
are incorporated herein by reference:
(a) Our Annual Report on Form 10-KSB for the fiscal year ended July 31, 2007,
filed on October 29, 2007, pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934, as amended, (the "Exchange Act").
(b) All other reports filed pursuant to 13(a) or 15(d) of the Exchange Act
since the end of the fiscal year covered by the financial statements in
the Form 10-KSB referred to in (a) above, which consists of a Form 10-QSB
filed on December 17, 2007.
(c) All other reports filed pursuant to 13(a) or 15(d) of the Exchange Act
since the end of the fiscal year covered by the financial statements in
the Form 10-KSB referred to in (a) above.
All documents subsequently filed by the registrant pursuant to Sections 13(a),
13(c), 14, and 15(d) of the Securities Exchange Act of 1934, prior to the
filing of a post-effective amendment which indicates that all securities
offered have been sold or which deregisters all securities then remaining
unsold shall be deemed to be incorporated in this registration statement by
reference and to be a part hereof from the date of filing of such documents.
Any statement contained in this registration statement, in a supplement to
this registration statement or in a document incorporated by reference herein,
shall be deemed to be modified or superseded for purposes of this registration
statement to the extent that a statement contained herein or in any
subsequently filed supplement to this registration statement or in any document
that is subsequently incorporated by reference herein modifies or supersedes
such statement. Any statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this registration
statement.
<PAGE>
Item 4. Description of Securities
The registrant is authorized to issue 1,000,000,000 shares of common stock,
par value $0.0001 per share.
Miscellaneous Rights and Provisions. There are no preemptive rights,
subscription rights, or redemption provisions relating to the shares and
none of the shares carries any liability for further calls.
Dividends. Holders of shares are entitled to receive dividends in cash,
property or shares when and if the Board of Directors declares dividends out
of funds legally available therefore.
Voting. A quorum for any meeting of stockholders is a majority of shares then
issued and outstanding and entitled to be voted at the meeting. Holders of
shares are entitled to one vote, either in person or by proxy, per share.
Liquidation, dissolution, winding up. Upon our liquidation, dissolution or
winding up, any assets will be distributed to the holders of shares after
payment or provision for payment of all our debts, obligations or liabilities.
The registrant's common stock is quoted on the Over the Counter Bulletin Board.
Item 5. Interests of Named Experts and Counsel
Amy M. Trombly serves as the registrant's securities counsel. Ms. Trombly
currently serves as trustee to a trust holding shares of common stock for the
benefit of certain shareholders of On the Go Healthcare, Inc. Ms. Trombly has
voting and dispositive control over the shares in accordance with the terms of
the trust, however, she does not have a financial interest in the trust other
than nominal fees for serving as its trustee. Ms. Trombly disclaims beneficial
ownership of the shares.
Other than as described above, no named expert or counsel was hired on a
contingent basis, will receive a direct or indirect interest in the registrant
or was a promoter, underwriter, voting trustee, director, officer or employee
of the registrant. No expert or counsel has any contingent based agreement with
the registrant or any other interest in or connection to the registrant.
Item 6. Indemnification of Directors and Officers
Section 145 of the Delaware General Corporation Law, as amended, authorizes
the registrant to indemnify any director or officer, under certain prescribed
circumstances, and subject to certain limitations against certain costs
and expenses, including attorney's fees actually and reasonably incurred
in connection with any action, suit or proceeding, whether civil, criminal,
administrative or investigative, to which a person is a party by reason of
being a director or officer of the registrant if it is determined that such
person acted in accordance with the applicable standard of conduct set
forth in such statutory provisions. The registrant's Amended and Restated
Certificate of Incorporation, as amended, contains provisions relating to the
indemnification of directors and officers and its By-Laws extends such
indemnities to the full extent permitted by Delaware law.
The registrant may also purchase and maintain insurance for the benefit of any
director or officer, which may cover claims for which it could not indemnify
such persons.
Item 7. Exemption from Registration Claimed
Not Applicable.
Item 8. Exhibits
The following exhibits are filed as part of this Registration Statement:
5.1 Opinion of Amy M. Trombly, Esq.
10.1 On The Go Healthcare, Inc. February 2008 Stock Option Plan, dated
February 26, 2008 (filed herewith).
23.1 Consent of Danziger Hochman Partners LLP.
23.2 Consent of Counsel (included in Exhibit 5.1 hereto).
Item 9. Undertakings
(a) The undersigned registrant hereby undertakes:
1. To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement:
(i) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement
or any material change to such information in the registration
statement.
2. For the purpose of determining any liability under the Securities Act of
1933, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
3. To remove from registration by means of a post-effective amendment any of
the securities being registered which remain unsold at the termination of
the offering.
4. For the purpose of determining liability of the registrant under the
Securities Act of 1933 to any purchaser in the initial distribution of
the securities:
The undersigned registrant undertakes that in a primary offering of
securities of the undersigned registrant pursuant to this registration
statement, regardless of the underwriting method used to sell the
securities to the purchaser by means of any of the following
communications, the undersigned registrant will be a seller to the
purchaser and will be considered to offer or sell such securities to
such purchaser:
(i) Any preliminary prospectus or prospectus of the undersigned
registrant relating to the offering required to be filed
pursuant to Rule 424 (section 230.424 of this chapter);
(ii) Any free writing prospectus relating to the offering prepared by
or on behalf of the undersigned registrant or used or referred to
by the undersigned registrant;
(iii) The portion of any other free writing prospectus relating to the
offering containing material information about the undersigned
registrant or its securities provided by or on behalf of the
undersigned registrant; and
(iv) Any other communication that is an offer in the offering made
by the undersigned registrant to the purchaser.
<PAGE>
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of
the registrant's annual report pursuant to section 13(a) or section 15(d)
of the Securities Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide
offering thereof.
(h) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons
of the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as
expressed in the Act and is, therefore, unenforceable. In the event that
a claim for indemnification against such liabilities (other than the
payment by the registrant of expenses incurred or paid by a director,
officer or controlling person of the registrant in the successful defense
of any action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered,
the registrant will, unless in the opinion of its counsel the matter has
been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question of whether such indemnification by it is against
public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the city of Concord, Province of Ontario, Country of Canada,
on February 26, 2008.
ON THE GO HEALTHCARE, INC.
By: /s/Stuart Turk
--------------------------
Stuart Turk, President and
Chief Executive Officer
In accordance with the requirements of the Securities Act of 1933,
this registration statement was signed by the following persons in the
capacities and in the dates stated:
Signature Title Date
/s/Stuart Turk February 26, 2008
--------------------- President, Chief Executive Officer, -----------------
Stuart Turk Chairman and Director
/s/Evan Schwartzberg February 26, 2008
--------------------- Chief Financial and Accounting Officer -----------------
Evan Schwartzberg
/s/Ralph Magid February 26, 2008
--------------------- Director -----------------
Ralph Magid
<PAGE>
</TEXT>
</DOCUMENT>
Exhibit 5.1
AMY TROMBLY, ESQ.
1320 Centre Street, Suite 202
Newton, MA 02459
(617)243-0060
February 26, 2008
On The Go Healthcare, Inc.
85 Corstate Avenue, Unit #1
Concord, Ontario, Canada L4K 4Y2
Re: Registration Statement on Form S-8
Gentlemen:
I have acted as counsel to On The Go Healthcare, Inc., a Delaware corporation
(the "Company"), in connection with the preparation and filing with the
Securities and Exchange Commission of a Registration Statement on Form S-8
(the "Registration Statement"), pursuant to which the Company is registering
the issuance under the Securities Act of 1933, as amended, of a total of
200,000,000 shares (the "Shares") of its common stock, par value $0.0001
(the "Common Stock"). This opinion is being rendered in connection with
the filing of the Registration Statement. All capitalized terms used herein
and not otherwise defined shall have the respective meanings given to them
in the Registration Statement.
In connection with this opinion, I have examined the Company's Amended and
Restated Certificate of Incorporation, as amended, and Bylaws, both as
currently in effect and such other records of the corporate proceedings of
the Company and certificates of the Company's officers as I deemed relevant;
and the Registration Statement and the exhibits thereto.
In my examination, I have assumed the genuineness of all signatures, the
legal capacity of natural persons, the authenticity of all documents
submitted to me as originals, the conformity to original documents of all
documents submitted to me as certified or photostatic copies and the
authenticity of the originals of such copies.
Based upon the foregoing, I am of the opinion that (i) the Shares have been
duly and validly authorized by the Company and (ii) the Shares, when issued
as described in the Registration Statement, will be duly and validly issued,
fully paid and non-assessable shares of Common Stock.
My opinion is limited to the Delaware General Corporation Law and federal
securities laws of the United States and I express no opinion with respect
to the laws of any other jurisdiction. No opinion is expressed herein with
respect to the qualification of the Shares under the securities or blue sky
laws of any state or any foreign jurisdiction. This opinion is limited to
the matters stated herein. I disavow any obligation to update this opinion
or advise you of any changes in my opinion in the event of changes in the
applicable laws or facts or if additional or newly discovered information
is brought to my attention.
I understand that you wish to file this opinion as an exhibit to the
Registration Statement, and I hereby consent thereto.
Very truly yours,
/s/ Amy Trombly, Esq.
----------------------
Amy Trombly, Esq.
<PAGE>
</TEXT>
</DOCUMENT>
Exhibit 10.1
ON THE GO HEALTHCARE, INC.
February 2008 STOCK OPTION PLAN
Article I. Purposes of the Plan
The purposes of this February 2008 Stock Option Plan are to attract and retain
the best available personnel, to provide additional incentive to Employees,
Directors and Consultants, and to promote the success of the Company's
business.
Article II. Definitions
As used herein, the following definitions shall apply:
2.01 "Administrator" means the Board or any of the Committees appointed
to administer the Plan.
2.02 "Applicable Laws" means the legal requirements relating to the
administration of share incentive plans, if any, under applicable
provisions of the U.S. federal securities laws, the U.S. state
corporate and securities laws, the Code, the rules of any applicable
stock exchange or national market system, and the laws and rules of
any jurisdiction outside the U.S. applicable to Options including
Canadian laws, SARs or Restricted Shares granted to residents
therein.
2.03 "Board" means the Board of Directors of the Company.
2.04 "Code" means the U.S. Internal Revenue Code of 1986, as amended.
2.05 "Committee" means any committee appointed by the Board to administer
the Plan, provided that the Committee shall consist of not fewer than
two (2) members of the Board, and shall, following the Registration
Date and, solely to the extent required to comply with Applicable Laws,
be composed of "non-employee" directors within the meaning of
Rule 16b-3 as promulgated under the Exchange Act and "outside
directors" within the meaning of the Code. To the extent the Plan
is administered by the Board, the term "Committee" shall refer to
the Board.
2.06 "Common Share" means a share of US$0.0001 par value of the Company.
2.07 "Company" means On the Go Healthcare, Inc., a company incorporated
under the laws of Delaware.
2.08 "Consultant" means any person (other than an Employee or a Director)
who is engaged by the Company or any Related Entity to render
consulting or advisory services to the Company or such Related Entity
or any other selective persons the Administrator determines provides,
directly or indirectly, bona fide value to the Company or any Related
Entity.
2.09 "Continuous Service" means that the provision of services to the Company
or a Related Entity in any capacity of Employee, Director, or
Consultant, is not interrupted or terminated. Continuous Service
shall not be considered interrupted in the case of:
<PAGE>
(i) any approved leave of absence;
(ii) transfers among the Company, any Related Entity, or any
successor, in any capacity of Employee, Director, or
Consultant; or
(iii) any change in status as long as the individual remains in the
service of the Company or a Related Entity in any capacity of
Employee, Director, or Consultant (except as otherwise provided
in the Option Agreement).
An approved leave of absence shall include sick leave, maternity leave,
or any other authorized personal leave.
2.10 "Corporate Transaction" means any of the following transactions to which
the Company is a party:
(i) a merger or consolidation or reorganization in which the Company
is not the surviving entity; or
(ii) the sale, transfer or other disposition of all or substantially
all of the assets of the Company (including the share capital of
the Company's Subsidiaries).
2.11 "Director" means a member of the Board or the board of directors of any
Related Entity.
2.12 "Disability" means that an Optionee is permanently unable to carry out
the responsibilities and functions of the position held by the Optionee
by reason of any medically determinable physical or mental impairment
as determined by the Administrator. An Optionee will not be considered
to have incurred a Disability unless he or she furnishes proof of such
impairment sufficient to satisfy the Administrator in its discretion.
2.13 "Effective Date" means the date on which a Grant of Options and/or SARs
and/or Restricted Shares shall take effect in accordance with Option
Agreement.
2.14 "Employee" means any person, including an Officer or Director, who is an
employee of the Company or any Related Entity. The payment of an
independent director's fee by the Company or a Related Entity shall
not be sufficient to constitute "employment" of such person by the
Company.
2.15 "Exchange Act" means the U.S. Securities Exchange Act of 1934, as
amended.
2.16 "Fair Market Value" means, as of any date, the value of Common Shares
as follows:
(a) Where there exists a public market for the Common Shares, the Fair
Market Value shall be:
(i) the closing price for a Share for the last market trading
day prior to the time of the determination (or, if no
closing price was reported on that date, on the last
trading date on which a closing price was reported) on
the stock exchange determined by the Administrator to be
the primary market for the Common Shares or the Nasdaq
National Market, whichever is applicable; or
<PAGE>
(ii) if the Common Shares are not traded on any such exchange,
or national market system, the average of the closing
bid and asked prices of a Share on the Nasdaq Small
Cap Market for the day prior to the time of the
determination (or, if no such prices were reported on
that date, on the last date on which such prices were
reported), in each case, as reported in The Wall Street
Journal or such other source as the Administrator deems
reliable.
(b) In the absence of an established market for the Common Shares of
the type described in (a), above, the Fair Market Value thereof
shall be determined by the Administrator in good faith by reference
to:
(i) the valuation price made by an independent appraiser
appointed by the Administrator;
(ii) the placing price of the latest private placement of the
Shares; and
(iii) the development of the Company's business operations
since such latest private placement.
2.17 "Grant" means the number of Options and/or Stock Appreciation Rights
and/or Restricted Shares and/or Restricted Share Units granted to an
Optionee at any time in accordance with Article VI hereof.
2.18 "Immediate Family" means any child, stepchild, grandchild, parent,
stepparent, grandparent, spouse, former spouse, sibling, niece, nephew,
mother-in-law, father-in-law, son-in-law, daughter-in-law,
brother-in-law, or sister-in-law, including adoptive relationships,
any person sharing the Optionee's household (other than a tenant or
employee), a trust in which these persons (or the Optionee) have more
than fifty percent (50%) of the beneficial interest, a foundation in
which these persons (or the Optionee) control the management of
assets, and any other entity in which these persons (or the Optionee)
own more than fifty percent (50%) of the voting interests.
2.19 "Liquidation Event" means a complete dissolution or liquidation of the
Company.
2.20 "Non-Statutory Stock Option" means an Option not intended to qualify as
an Incentive Stock Option within the meaning of Section 422 of the Code.
2.21 "Officer" means a person who is an officer of the Company or a Related
Entity within the meaning of Section 16 of the Exchange Act and the
rules and regulations promulgated thereunder or, to the extent
applicable, other Applicable Laws.
2.22 "Option" means an option to purchase Shares pursuant to an Option
Agreement granted under the Plan.
2.23 "Optionee" means an Employee, Director, or Consultant who receives a
Grant under the Plan.
2.24 "Option Agreement" means the written agreement evidencing the grant of
an option and/or SARs and/or Restricted Shares executed by the Company
and the Optionee, including any amendments thereto.
2.25 "Option Period" means the period commencing on the Effective Date of a
Grant and ending no later than on the day prior to the tenth
anniversary of such Effective Date.
<PAGE>
2.26 "Parent" means a "parent corporation", whether now or hereafter
existing, as defined in Section 424(e) of the Code or, to the extent
applicable, other Applicable Laws.
2.27 "Plan" means this February 2008 Stock Option Plan of On the Go
Healthcare, Inc., dated February 26, 2008, as set forth herein and
as may be amended from time to time.
2.28 "Registration Date" means the first to occur of:
(a) the closing of the first sale to the general public of:
(i) the Common Shares; or
(ii) the same class of securities of a successor corporation
(or its Parent) issued pursuant to a Corporate Transaction
in exchange for or in substitution of the Common Shares,
pursuant to a registration statement filed with and
declared effective by the Securities and Exchange
Commission under the Securities Act or an equivalent
thereof in a jurisdiction outside the U.S.;
and
(b) in the event of a Corporate Transaction, the date of the
consummation of the Corporate Transaction if the same class of
securities of the successor corporation (or its Parent) issuable in
such Corporate Transaction shall have been sold to the general
public pursuant to a registration statement filed with and declared
effective by the Securities and Exchange Commission under the
Securities Act or an equivalent thereof in a jurisdiction outside
the U.S., on or prior to the date of consummation of such Corporate
Transaction.
2.29 "Related Entity" means any Parent, Subsidiary and any other corporation,
partnership, limited liability company or other business entity in
which the Company, its Parent or a Subsidiary holds a substantial
ownership interest, directly or indirectly.
2.30 "Securities Act" means the U.S. Securities Act of 1933, as amended.
2.31 "SAR" means a Stock Appreciation Right granted to an Optionee under
this Plan.
2.32 "Shares" mean Common Shares of the Company.
2.33 "Subsidiary" means a "subsidiary corporation", whether now or hereafter
existing, as defined in Section 424(f) of the Code or, to the extent
applicable, other Applicable Laws.
Article III. Shares Subject to the Plan
3.01 Subject to the provisions of Section 10.01 below, the maximum aggregate
number of Shares with respect to which Grants may be made under the
Plan shall not exceed 200,000,000 shares.
<PAGE>
3.02 Any Shares covered by a Grant (or portion of a Grant) which is forfeited
or cancelled, expires or is settled in cash or otherwise, shall be
deemed not to have been issued for purposes of determining the maximum
aggregate number of Shares which may be issued under the Plan. If any
unissued Shares are retained by the Company upon exercise of a Grant in
order to satisfy the exercise price for such Grant or any withholding
taxes due with respect to such Grant, such retained Shares subject to
such Grant shall become available for future issuance under the Plan
(unless the Plan has terminated). Shares that actually have been
issued under the Plan pursuant to a Grant shall not be returned to
the Plan and shall not become available for future issuance under
the Plan.
Article IV. Administration of the Plan
4.01 Plan Administrator. The Committee shall administer the Plan in
accordance with its terms.
4.02 Powers of the Administrator. Subject to Applicable Laws and the
provisions of the Plan (including any other powers given to the
Administrator hereunder), and except as otherwise provided by the Board,
the Administrator shall have the authority, in its discretion:
(a) to determine the eligibility of Grants, and to authorize
the Chief Executive Officer and Chief Financial Officer to
determine number of shares of each Grant;
(b) to approve forms of Option Agreements for use under the Plan;
(c) to determine to grant Options with or without SARs;
(d) to determine the Exercise Price applicable to the Share covered
by each Option;
(e) to determine the Option Period applicable thereto;
(f) to establish additional terms, conditions, rules or procedures to
accommodate the rules or laws of applicable foreign jurisdictions
and to afford Optionees favorable treatment under such rules or
laws; provided, however, that no Grant shall be granted under any
such additional terms, conditions, rules or procedures with terms
or conditions which are inconsistent with the provisions of the
Plan;
(g) to amend the terms of any outstanding Grant granted under the Plan,
and to reduce the exercise price of any Option or SAR to the then
current Fair Market Value if the Fair Market Value of the Shares
covered by such Grant shall have declined since the date the Grant
was granted and to make any other amendments or adjustments to any
Grant that the Administrator determines, in its discretion and
under the authority granted to it under this Plan, to be necessary
or advisable, provided that the exercise price shall never fall
below the nominal or par value of the Shares, and that any such
amendment or adjustment that would adversely affect the Optionee's
rights under an outstanding Grant shall not be made without the
Optionee's written consent;
(h) to construe and interpret the terms of the Plan and Grants,
including without limitation, any notice of Grant or Option
Agreement granted pursuant to the Plan; and
(j) to take such other action, not inconsistent with the terms of the
Plan, as the Administrator deems appropriate.
<PAGE>
Article V. Eligibility
Options may be granted to Employees, Directors, and Consultants. An Employee,
Director, or Consultant who has been granted a Grant may, if otherwise
eligible, be granted additional Grants. Grants may be granted to such
Employees, Directors, or Consultants who are residing in foreign jurisdictions
as the Administrator may determine from time to time.
Article VI. Type of Grants; Terms and Conditions of Grants
Grants under the Plan may consist of one or more of the following: Options,
SARs, or Restricted Shares (which may be granted as Restricted Share units).
Restricted Stock may be registered on a Form S-8 prior or subsequent to any
grants. Awards of Restricted Shares may provide the Optionee with dividends
or dividend equivalents and voting rights prior to vesting. Additionally,
shares of common stock may be granted as free-trading shares if the shares of
common stock are registered on a Form S-8. Each Grant shall be designated in
the Option Agreement.
6.01 Options
(a) Option Designation. Options shall be designated as Non-Statutory
Stock Option.
(b) Option Exercise Price. The exercise price of an Option shall be
as follows:
(i) granted to a person who, at the time of the grant of such
Non-Statutory Stock Option owns shares representing more
than ten percent (10%) of the voting power of all classes
of shares of the Company or any Parent or Subsidiary, the
per Share exercise price shall be not less than one
hundred percent (100%) of the Fair Market Value per
Share on the date of grant; or
(ii) granted to a person other than a person described in the
preceding paragraph, the per Share exercise price shall
be not less than eighty five percent (85%) of the Fair
Market Value per Share on the date of grant.
(c) Consideration. In addition to any other types of consideration the
Administrator may determine, the Administrator is authorized to
accept as consideration for Shares issued under the Plan the
following:
(i) cash or check
(ii) cancellation of indebtedness owed by the Company to the
Optionee;
(iii) promissory note;
(iv) Shares previously acquired by the Optionee valued at the
Fair Market Value at the time of the exercise;
(v) withholding from delivery to the Optionee that number of
whole Shares having a Fair Market Value at the time of
the exercise equal to the exercise price payable to the
Company upon exercise of the Option; or
(vi) any combination of the foregoing methods of payment.
(d) Easy-Sale Exercise.
<PAGE>
(i) Exercise/Sale. An Option Agreement may, but need not,
provide that, if Shares are publicly traded, all or part
of the exercise price of an Option and any withholding
taxes may be paid by the delivery (on a form prescribed
by the Company) of an irrevocable direction to a
securities broker approved by the Company to sell
Shares and to deliver all or part of the sales proceeds
to the Company.
(ii) Exercise/Pledge. An Option Agreement may, but need not,
provide that, if Shares are publicly traded, all or part
of the exercise price of an Option and any withholding
taxes may be paid by the delivery (on a form prescribed
by the Company) of an irrevocable direction to pledge
Shares to a securities broker or lender approved by the
Company, as security for a loan, and to deliver all or
part of the loan proceeds to the Company.
6.02 SARs.
(a) Grant. SARs may be granted in tandem with an Option, in addition
to an Option, or may be freestanding and unrelated to an Option.
SARs granted in tandem or in addition to an Option may be granted
either at the same time as the Option or at a later time. SARs
shall vest and become exercisable at a rate determined by the
Administrator, and shall remain exercisable for such period as
specified by the Administrator. A SAR shall entitle the Optionee
to receive from the Company an amount equal to the excess of the
Fair Market Value of a Share on the exercise of the SAR over the
Fair Market Value of a Share on the date of grant or, in the case
of a SAR granted in tandem with an Option, the per Share exercise
price applicable to such Option.
(b) Settlement. The Administrator shall determine, in its sole
Discretion, whether the SAR shall be settled in cash, Shares, or a
combination of cash and Shares. In no event may any Optionee
receive grants of SARs with respect to more than 350,000 Shares in
any calendar year.
6.03 Restricted Shares.
(a) Grant. Restricted Shares may be granted in the form of Shares or
share units having a value equal to an identical number of Shares.
The employment conditions and the length of the period for vesting
of Restricted Shares shall be established by the Administrator at
time of grant. In the event that a share certificate is issued in
respect of Restricted Shares, such certificate shall be registered
in the name of the Optionee but shall be held by the Company until
the end of the restricted period. During the restricted period,
Restricted Shares may not be sold, assigned, transferred or
otherwise disposed of, or pledged or hypothecated as collateral
for a loan or as security for the performance of any obligation
or for any other purpose as the Administrator shall determine.
(b) Settlement. The Administrator shall determine, in its sole
Discretion, whether Restricted Shares granted in the form of share
units shall be paid in cash, Shares, or a combination of cash and
Shares.
<PAGE>
6.04 Conditions of Grants; Vesting, and Repurchase Rights. Subject to the
terms of the Plan, the Administrator shall determine the provisions,
terms, and conditions of each Grant including, but not limited to, the
Grant vesting schedule, repurchase provisions, rights of first refusal,
forfeiture provisions, form of payment (cash, Shares, or other
consideration) upon settlement of the Grant, payment contingencies,
and satisfaction of any performance criteria, provided, however,
unless specifically provided otherwise in the relevant Option Agreement,
one fourth (1/4th) of the Grant shall vest at each of 1st, 2nd, 3rd,
and 4th anniversaries following the issuance of such Grant so long as
the Optionee provides Continuous Service to the Company.
6.05 Acquisitions and Other Transactions. The Administrator may issue Grants
under the Plan in settlement, assumption or substitution for,
outstanding Grants or obligations to grant future Grants in connection
with the Company or a Related Entity acquiring another entity, an
interest in another entity or an additional interest in a Related
Entity whether by merger, share purchase, asset purchase, or other form
of transaction.
6.06 Deferral of Grant Payment. The Administrator may establish one or more
programs under the Plan to permit selected Optionees the opportunity to
elect to defer receipt of consideration upon exercise of a Grant,
satisfaction of performance criteria, or other event that absent the
election would entitle the Optionee to payment or receipt of Shares or
other consideration under a Grant. The Administrator may establish the
election procedures, the timing of such elections, the mechanisms for
payments of, and accrual of interest or other earnings, if any, on
amounts, Shares or other consideration so deferred, and such other
terms, conditions, rules and procedures that the Administrator deems
advisable for the administration of any such deferral program.
6.07 Award Exchange Programs. The Administrator may establish one or more
programs under the Plan to permit selected Optionees to exchange a
Grant under the Plan for one or more other types of Grants under the
Plan on such terms and conditions as determined by the Administrator
from time to time.
6.08 Separate Programs. The Administrator may establish one or more separate
programs under the Plan for the purpose of issuing particular forms of
Grants to one or more classes of Optionees on such terms and conditions
as determined by the Administrator from time to time.
6.09 Early Exercise. The Option Agreement may, but need not, include a
provision whereby the Optionee may elect, at any time while being an
Employee, Director, or Consultant, to exercise any part or all of the
Grant prior to full vesting of the Grant. Any unvested Shares received
pursuant to such exercise may be subject to a repurchase right in favor
of the Company or a Related Entity or to any other restriction the
Administrator determines to be appropriate.
6.10 Option Period. The Option Period shall be the term stated in the Option
Agreement up to ten (10) years from the Effective Date of Grant thereof.
6.11 Transferability of Grants. No Grant may be sold, pledged, assigned,
hypothecated, transferred, or disposed of in any manner other than by
will or by the laws of descent or distribution and may be exercised,
during the lifetime of the Optionee, only by the Optionee; provided,
however, during the lifetime of the Optionee, SARs may be transferred
by gift to members of the Optionee's Immediate Family to the extent and
manner determined by the Administrator.
6.12 Time of Grants. The date of grant of a Grant shall, for all purposes,
be the date on which the Administrator makes the determination to grant
such Grant, or such other date as is determined by the Administrator.
Notice of the grant determination shall be given to each Employee,
Director, or Consultant to whom a Grant is so granted within a
reasonable time after the date of such grant.
<PAGE>
6.13 Buyout Provisions. The Administrator may at any time offer to buy out
for a payment in cash or Shares or other consideration, any Grant
previously granted based on such terms and conditions as the
Administrator shall establish and communicate to the Optionee at
the time such offer is made.
Article VII. Withholding
The Company shall have the right to deduct from any payment to be made pursuant
to the Plan the amount of any taxes required by law to be withheld therefrom,
or to require an Optionee to pay to the Company such amount required to be
withheld prior to the issuance or delivery of any Shares or the payment of cash
under the Plan. The Administrator may, in its discretion, permit an Optionee
to elect to satisfy such withholding obligation by having the Company retain
the number of Shares whose Fair Market Value equals the amount required to be
withheld. Any fraction of a Share required to satisfy such obligation shall
be disregarded and the amount due shall instead be paid in cash by the
Optionee.
Article VIII. Exercise of Grant
8.01 Procedure for Exercise; Rights as a Shareholder.
(a) Any Grant granted hereunder shall be exercisable at such times
and under such conditions as determined by the Administrator under
the terms of the Plan and specified in the Option Agreement.
(b) A Grant shall be deemed to be exercised when written notice of such
exercise has been given to the Company, as in a form required
under the applicable Option Agreement, in accordance with the
terms of the Grant by the person entitled to exercise the Grant
and full payment for the Shares is made with respect to which the
Grant is exercised. Until the issuance (as evidenced by the
appropriate entry on the books of the Company or of a duly
authorized transfer agent of the Company) of the share certificate
evidencing such Shares, no right to vote or receive dividends or
any other rights as a shareholder shall exist with respect to
Shares subject to a Grant, notwithstanding the exercise of an
Option or other Grant. The Company shall issue (or cause to be
issued) such share certificate as soon as practicable following
the exercise of the Grant. No adjustment will be made for a
dividend or other right for which the record date is prior to the
date the share certificate is issued, except as provided in the
Option Agreement or Article X, below.
8.02 Exercise of Option or SAR Following Termination of Continuous Service.
If the Optionee's Continuous Service is terminated for any reason other
than death or Disability, such Optionee shall have the right to
exercise the Option or SAR at any time within thirty (30) days (or such
other period of time not exceeding three (3) months as is determined
by the Administrator at the time of granting the Option), following the
date such Optionee ceases his or her Continuous Service to the extent
that such Optionee was entitled to exercise the Option or SAR at the
date of such termination; provided, however, that no Option or SAR
shall be exercisable after the expiration of the term set forth in the
applicable Option Agreement. To the extent that such Optionee was not
entitled to exercise the Option or SAR at the date of such termination,
or if such Optionee does not exercise such Option or SAR (which such
Optionee was entitled to exercise) within the time specified herein,
the Option or SAR shall terminate.
<PAGE>
8.03 Death or Disability of Optionee. If an Optionee's Continuous Service
is terminated due to death or Disability, the Option or SAR may be
exercised at any time within six (6) months following the date of death
or termination of employment due to Disability, in the case of death, by
the Optionee's estate or by a person who acquired the right to exercise
the Option or SAR by bequest or inheritance, or, in the case of
Disability, by the Optionee, but in any case only to the extent the
Optionee was entitled to exercise the Option or SAR at the date of his
or her termination of Continuous Service by death or Disability;
provided, however, that no Option or SAR shall be exercisable after the
expiration of the term set forth in the Option Agreement. To the extent
that such Optionee was not entitled to exercise such Option or SAR at
the date of his or her termination of employment by death or Disability
or if such Option or SAR is not exercised (to the extent it could be
exercised) within the time specified herein, the Option or SAR shall
terminate.
8.04 Extension of Time to Exercise. Notwithstanding anything to the contrary
in this Article VIII, the Administrator may at any time and from time to
time prior to the termination of a Non-statutory Stock Option, with
the consent of the Optionee, extend the period of time during which
the Optionee may exercise his or her Non-statutory Stock Option
following the date the Optionee ceases Continuous Services; provided,
however, that:
(a) the maximum period of time during which a Non-statutory Stock
Option shall be exercisable following such termination date shall
not exceed an aggregate of six (6) months;
(b) the Non-statutory Stock Option shall not become exercisable after
the expiration of the term of such Option as set forth in the
Option Agreement as a result of such extension; and
(c) notwithstanding any extension of time during which the
Non-statutory Stock Option may be exercised, such Option, unless
otherwise amended by the Administrator, shall only be exercisable
to the extent to which the Optionee was entitled to exercise it
on the date the Optionee ceased Continuous Services.
To the extent that such Optionee was not entitled to exercise the
Option at the date of such termination, or if such Optionee does not
exercise an Option which the Optionee was entitled to exercise within
the time specified herein, the Option shall terminate.
Article IX. Conditions Upon Issuance of Shares
9.01 No Violation of Law. Shares shall not be issued pursuant to a Grant or
the exercise of a Grant unless the exercise of such Grant and the
issuance and delivery of such Shares pursuant thereto shall comply with
all Applicable Laws, and the Administrator may further subject any
issuance of Shares to the approval of counsel for the Company with
respect to such compliance.
9.02 Execution of Documents. As a condition to the exercise of a Grant,
the Administrator may require the person exercising such Grant to
execute an investment representation statement acceptable to the
Company or a share purchase agreement acceptable to the Company, each
in forms approved by the Administrator from time to time, in addition
to any other instrument the Administrator deems necessary or
advisable.
<PAGE>
Article X. Adjustments Upon Changes in Capitalization or Corporate
Transaction
10.01 Adjustments upon Changes in Capitalization. Subject to any required
action by the shareholders of the Company, the number of Shares covered
by each outstanding Grant, and the number of Shares which have been
authorized for issuance under the Plan but as to which no Grants have
yet been granted or which have been returned to the Plan, the exercise
or purchase price of each such outstanding Grant, as well as any other
terms that the Administrator determines require adjustment shall be
proportionately adjusted for:
(a) any increase or decrease in the number of issued Shares resulting
from a share split, reverse share split, share dividend,
combination or reclassification of the Shares, or similar
transaction affecting the Shares;
(b) any other increase or decrease in the number of issued Shares
effected without receipt of consideration by the Company; or
(c) as the Administrator may determine in its discretion, any other
transaction with respect to Shares to which Section 424(a) of the
Code applies or a similar transaction; provided, however, that
conversion of any convertible securities of the Company shall not
be deemed to have been "effected without receipt of consideration."
Such adjustment shall be made by the Administrator and its
determination shall be final, binding and conclusive. Except as the
Administrator determines, no issuance by the Company of shares of any
class, or securities convertible into shares of any class, shall
affect, and no adjustment by reason hereof shall be made with respect
to, the number or price of Shares subject to a Grant.
10.02 Corporate Transaction. In the event of a proposed Corporate
Transaction, subject to the actual consummation of the proposed
transaction, each outstanding Grant shall automatically become fully
vested and exercisable, unless the Grant is assumed or substituted with
an equivalent option or right by the successor corporation or the Parent
or Subsidiary thereof. If the successor corporation refuses to assume
or substitute for the Grant, the Administrator shall notify the Optionee
that the Grant shall be fully vested and exercisable with respect to all
of the Shares underlying the Grant (including Shares as to which it
would not otherwise be vested or exercisable) for a period of fifteen
(15) days from the date of such notice. If the Grant thus becomes fully
vested and exercisable but is not exercised during this fifteen (15) day
period, it shall terminate immediately prior to the effective time of
such Corporate Transaction. For the purposes of this Section 10.02,
the Grant shall be considered assumed or substituted with an equivalent
option or right if, in connection with the Corporate Transaction, the
Grant is replaced with a comparable option or right with respect to
shares of the successor corporation or Parent or Subsidiary thereof or
is replaced with a cash incentive program of the successor corporation
or Parent or Subsidiary thereof which preserves the compensation element
of such Grant existing at the time of the Corporate Transaction and
provides for subsequent payout in accordance with the same vesting
schedule applicable to such Grant. The determination of Grant
comparability above shall be made by the Administrator and its
determination shall be final, binding and conclusive.
<PAGE>
10.03 Liquidation Event. In the event of a proposed Liquidation Event, the
Administrator shall notify each Optionee of the proposed event at least
twenty (20) days prior to the proposed effective date of the Liquidation
Event. The Administrator in its discretion may provide for an Optionee
to have the right to exercise his or her Grant until ten (10) days prior
to the proposed effective date for the Liquidation Event with respect
to all Shares underlying the Grant (including Shares as to which it
would not otherwise be vested or exercisable), subject to the actual
completion of the Liquidation Event at the time and in the manner
contemplated. In addition, the Administrator may provide that any
Company repurchase option applicable to any Shares issued upon grant
or an exercise of a Grant shall lapse as to all Shares, subject to the
actual completion of the Liquidation Event at the time and in the manner
contemplated. Any unexercised Grant shall terminate immediately prior
to effective time of the Liquidation Event.
Article XI. Effective Date and Term of Plan
The Plan, and any amendments to the Plan, shall become effective upon its
adoption by the Board. It shall continue in effect until February 21, 2018,
unless sooner terminated. Subject to Applicable Laws, Grants may be granted
under the Plan upon its becoming effective.
Article XII. Amendment, Suspension or Termination of the Plan
The Board may at any time amend, suspend or terminate the Plan. No Grant may
be granted during any suspension of the Plan or after termination of the Plan.
Any amendment, suspension or termination of the Plan (including termination of
the Plan pursuant to this Article XII) shall not affect Grants already granted,
and such Grants shall remain in full force and effect as if the Plan had not
been amended, suspended or terminated, unless mutually agreed otherwise between
the Optionee and the Administrator, which agreement must be in writing and
signed by the Optionee and the Company.
Article XIII. Availability of Shares; No Issuance in Violation of Law
13.01 Availability of Shares. The Company, during the term of the Plan, will
at all times keep available such number of unissued Shares as shall be
sufficient to satisfy the requirements of the Plan.
13.02 No Issuance in Violation of Law. The inability of the Company to obtain
authority from any regulatory body having jurisdiction under Applicable
Law, which authority is deemed by the Company's counsel to be necessary
to the lawful issuance and sale of any Shares hereunder, relieve the
Company of any liability in respect of the failure to issue or sell
such Shares as to which such requisite authority shall not have been
obtained.
Article XIV. No Effect on Terms of Employment/Consulting Relationship
The Plan shall not confer upon any Optionee any right with respect to the
Optionee's Continuous Service, nor shall it interfere in any way with his
or her right or the Company's or a Related Entity's right to terminate the
Optionee's Continuous Service at any time, with or without cause.
<PAGE>
Article XV. No Effect on Retirement and Other Benefit Plans
Except as specifically required by law or provided in a retirement or other
benefit plan of the Company or a Related Entity, Grants shall not be deemed
compensation for purposes of computing benefits or contributions under any
retirement plan of the Company or a Related Entity, and shall not affect any
benefits under any other benefit plan of any kind or any benefit plan
subsequently instituted under which the availability or amount of benefits is
related to level of compensation.
Article XVI. Liability of the Company; Consents
16.01 Consents. Optionee shall be responsible for obtaining any governmental
or other official consent that may be required by any country or
jurisdiction in order to permit the grant or exercise of any Grant.
Neither the Company nor any Related Entity shall be responsible for any
failure by an Optionee to obtain such consent or for any tax or other
liability to which an Optionee may become subject to as a result of his
or her participation in the Plan.
<PAGE>
</TEXT>
</DOCUMENT>
Exhibit 23.1
[Letterhead of DANZIGER HOCHMAN PARTNERS LLP]
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
On The Go Healthcare, Inc.
85 Corstate Avenue, Unit #1
Concord, Ontario L4K 4Y2
We consent to the incorporation by reference in this Registration Statement on
Form S-8 of On The Go Healthcare, Inc. of our report, dated October 15, 2007
relating to our audit of the consolidated financial statements, which appears
in the Annual Report on Form 10-KSB of On The Go Healthcare, Inc. for the year
ended July 31, 2007.
/s/ Danziger Hochman Partners LLP
----------------------------------
Danziger Hochman Partners LLP
Toronto, Canada
February 26, 2008
<PAGE>
</TEXT>
</DOCUMENT>
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