EXHIBIT 10.1
FORM OF WARRANT
WARRANT NO. AB-15
THIS
WARRANT HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE “SECURITIES ACT”), OR APPLICABLE STATE
SECURITIES LAWS. THE WARRANT MAY NOT BE SOLD, OFFERED FOR SALE,
TRANSFERRED, PLEDGED OR OTHERWISE DISPOSED OF UNLESS IT HAS BEEN
REGISTERED UNDER THOSE LAWS OR UNLESS THE COMPANY HAS RECEIVED AN
OPINION OF COUNSEL SATISFACTORY TO IT THAT SUCH DISPOSITION IS IN
COMPLIANCE WITH THE SECURITIES ACT AND ANY APPLICABLE STATE
SECURITIES LAWS.
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Right to Purchase 714,285 Shares
of:
Common Stock of Tri-Isthmus Group, Inc.
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TRI-ISTHMUS GROUP, INC.
Common Stock Purchase Warrant
TRI ISTHMUS GROUP, INC., a Delaware
corporation (the “ Company ”), hereby certifies
that as of October 30, 2007 (the “ Issue Date
”), for value received, SMP Investments I, LLC, 3366 N.
Torrey Pines Court, Suite 210, La Jolla, California 92037 (the
“ Holder ”), is entitled, subject to the terms
set forth below, to purchase from the Company at any time on or
before 5:00 p.m., Pacific Daylight Time, on October 30, 2009
(the “ Expiration Date ”), SEVEN HUNDRED
FOURTEEN THOUSAND, TWO HUNDRED EIGHTY FIVE (714,285) fully paid and
nonassessable shares of common stock of the Company, par value
$0.01 per share (the “ Common Stock ”), at a
purchase price per share equal to the Purchase Price, as defined
herein. The number of such shares of Common Stock and the Purchase
Price are subject to adjustment as provided in this Warrant. The
initial purchase price for shares subject to this Warrant will be
$0.45 per share (the “ Initial Purchase Price
”), and will be adjusted from time to time as provided
herein. The Initial Purchase Price or, if such price has been
adjusted, the price per share of Common Stock as last adjusted
pursuant to the terms hereof is referred to as the “
Purchase Price ” herein.
1. Exercise of Warrant;
Vesting .
(a) Subject
to (b) below, this Warrant may be exercised by the Holder
hereof in full at any time until the Expiration Date by surrender
of this Warrant and the subscription form annexed hereto (duly
executed by the Holder), to the Company, and by making payment in
cash or by certified or official bank check payable to the order of
the Company, in the amount obtained by multiplying (i) the
number of shares of Common Stock subject to the Warrant by
(ii) the Purchase Price then in effect. The shares of Common
Stock subject to this Warrant shall initially be one-third vested,
rounded downwards to the nearest share of Common Stock. Holder
shall acquire a vested interest with respect to the remaining
two-thirds of the shares of Common Stock subject to this Warrant
upon the passing of the one year anniversary of the Issue
Date.
(b) In
the event Holder ceases to be a member of the Advisory Board of the
Company, Holder shall have sixty (60) days from the date
Holder ceases to be a member of the Advisory Board (the “End
Date”) to exercise all shares of Common Stock underlying this
Warrant which have vested as of the End Date. Any such exercise
shall be in accordance with the provisions of (a) above, and
failure to exercise within the time period shall result in
Holder’s forfeiture of all rights and interest in this
Warrant.
2. Delivery of Stock
Certificates, etc., on Exercise . As soon as practicable
after the exercise of this Warrant, the Company will cause to be
issued in the name of and delivered to the Holder hereof a
certificate for the number of fully paid and nonassessable shares
of Common Stock (or Other Securities) to which the Holder shall be
entitled on such exercise, plus, in lieu of any fractional share to
which the Holder would otherwise be entitled, cash equal to such
fraction multiplied by the then current fair market value (as
reasonably determined by the Company) of one full share, together
with any other stock or other securities or property (including
cash, where applicable) to which the Holder is entitled upon such
exercise. “ Other Securities ” shall mean any
stock (other than Common Stock) and other securities of the Company
or any other person (corporate or otherwise) which the Holder at
any time shall be entitled to receive, or shall have received, on
the exercise of this Warrant, in lieu of or in addition to Common
Stock, or which at any time shall be issuable or shall have been
issued in exchange for or in replacement of Common Stock or Other
Securities pursuant to Sections 3 or 4.
3. Adjustment
.
(a)
Initial Purchase Price; Subsequent Adjustment of Price and
Number of Purchasable Shares . The Initial Purchase Price will
be adjusted from time to time as provided below. Upon each
adjustment of the Purchase Price, the Holder will thereafter be
entitled to purchase, at the Purchase Price resulting from such
adjustment, the number of shares of Common Stock obtained by
multiplying the Purchase Price in effect immediately before such
adjustment by the number of shares of Common Stock purchasable
pursuant to this Warrant immediately before such adjustment and
dividing the product by the Purchase Price resulting from such
adjustment.
(b)
Adjustment for Stock Splits and Combinations . If the
Company at any time or from time to time after the date of this
Warrant effects a subdivision of the outstanding shares of Common
Stock, by stock split or otherwise, the Purchase Price then in
effect immediately before that subdivision shall be proportionately
decreased; and, conversely, if the Company at any time or from time
to time after the date of this Warrant combines the outstanding
shares of Common Stock, by reverse stock split or otherwise, the
Purchase Price then in effect immediately before that combination
shall be proportionately increased. Any adjustment under this
Section 3(b) shall become effective at the close of business on the
date the subdivision or combination becomes effective.
2
(c)
Adjustment for Certain Dividends and Distributions . In the
event the Company at any time or from time to time after the date
of this Warrant either makes, or fixes a record date for the
determination of holders of Common Stock entitled to receive, a
dividend or other distribution payable in additional shares of
Common Stock, then and in each such event the Purchase Price then
in effect shall be decreased as of the time of such issuance or, in
the event such a record date is fixed, as of the close of business
on such record date, by multiplying the Purchase Price then in
effect by a fraction (1) the numerator of which is the total
number of shares of Common Stock issued and outstanding immediately
prior to the time of such issuance on the close of business on such
record date, and (2) the denominator of which shall be
(i) the total number of shares of Common Stock issued and
outstanding immediately prior to the time of such issuance or the
close of business on such record date plus (ii) the number of
shares of Common Stock issuable in payment of such dividend or
distribution; provided , however , that if such
record date is fixed and such dividend is not fully paid or if such
distribution is not fully made on the date fixed therefor, the
Purchase Price shall be recomputed accordingly as of the close of
business on such record date or date fixed therefor and thereafter
the Purchase Price shall be adjusted pursuant to this Section 3(c)
as of the time of actual payment of such dividend or distribution.
For purposes of the foregoing formula, “the total number of
shares of Common Stock issued and outstanding” on a
particular date shall include shares of Common Stock issuable upon
conversion of stock or securities convertible into Common Stock and
the exercise of warrants, options or rights for the purchase of
Common Stock which are outstanding on such date.
(d)
Adjustments for Other Dividends and Distributions . In the
event the Company at any time or from time to time after the date
of this Warrant makes, or fixes a record date for the determination
of holders of Common Stock entitled to receive, a dividend or other
distribution payable in securities of the Company other than shares
of Common Stock, then and in each such event, provision shall be
made so that the Holder shall receive upon exercise hereof, in
addition to the number of shares of Common Stock receivable
thereupon, the amount and kind of securities of the Company which
it would have received had this Warrant been exercised for Common
Stock as of the date of such event and had it thereafter, during
the period from the date of such event to and including the date of
exercise, retained such securities receivable by it as aforesaid
during such period, subject to all other adjustments called for
during such period under this Section 3 with respect to the
rights of the Holder.
(e)
Adjustment for Recapitalization, Reclassification, or
Exchange . If the Common Stock issuable upon the exercise of
this Warran
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