Exhibit 10.1
SERIES 6-A PREFERRED STOCK AND WARRANT PURCHASE
AGREEMENT
THIS SERIES 6-A PREFERRED STOCK AND
WARRANT PURCHASE AGREEMENT (the “ Agreement
”) is made as of the 31 st day of March,
2008 by and among Tri-Isthmus Group, Inc. (f/k/a Vsource, Inc.), a
Delaware corporation (the “ Company ”),
and the investors listed on Exhibit A attached to this
Agreement (the “ Purchaser ”).
The parties hereby agree as
follows:
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Authorization and Sale of Shares and Warrants . |
1.1 Authorization . The
Company has duly authorized the sale and issuance, pursuant to the
terms of this Agreement, of up to 5,000 shares (the “
Shares ”) of its Series 6-A Convertible
Preferred Stock, par value $0.01 per share (the “
Series 6-A Preferred ”), and warrants to
purchase up to 3,000,000 shares of the Company’s common
stock, par value $0.01 per share (the “ Common
Stock ”), at an exercise price of $0.50 per share
substantially in the form attached hereto as Exhibit B
(the “ Warrants ”). For purposes of this
Agreement, a “ Unit ” shall consist of
one share of Series 6-A Preferred and one Warrant to purchase
600 shares of Common Stock.
1.2 Purchase and Sale . Upon
the terms and subject to the conditions herein, and in reliance on
the representations, warranties and covenants set forth herein, at
the Closing each Purchaser named on Exhibit A hereto
shall, individually and not jointly, purchase from the Company, and
the Company shall issue and sell to each such Purchaser, the number
of Units set forth opposite the name of such Purchaser on
Exhibit A hereto, for a purchase price of $1,000.00 per
Unit (the “ Purchase Price ”).
1.3 Defined Terms Used in this
Agreement . The following terms used in this Agreement shall be
construed to have the meanings set forth below.
“
Affiliate ” means with respect to any person or
entity (a “ Person ”), any Person which,
directly or indirectly, controls, is controlled by, or is under
common control with such Person, including, without limitation, any
partner, officer, director, or member of such Person.
“
Balance Sheet ” means the Company’s
balance sheet as of September 30, 2007 included in the
Company’s Annual Report on Form 10-K for the fiscal year
ended September 30, 2007.
“
Code ” means the Internal Revenue Code of 1986,
as amended.
“
Exchange Act ” means the Securities Exchange
Act of 1934, as amended.
“
Material Adverse Effect ” means a material
adverse effect on the assets or liabilities of the Company.
“
SEC ” means the United States Securities and
Exchange Commission.
“
Securities Act ” means the Securities Act of
1933, as amended.
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2.1 Closing . In accordance
with the terms and conditions of that certain escrow agreement (the
“ Escrow Agreement ”), by and among the
Company, the Purchasers and Kirkpatrick & Lockhart Preston
Gates Ellis LLP, as escrow agent (the “ Escrow
Agent ”), the purchase and sale of the Units shall
take place as of the date hereof at the offices of the Escrow Agent
(which time and place is designated as the “
Closing ”).
2.2 Deliveries; Certificate of
Designation .
(a)
Shares and Warrants; Purchase Price . At the Closing and in
accordance with the Escrow Agreement, the Company shall deliver to
Purchasers certificates representing the Shares and the Warrants
being purchased by Purchasers against payment of the Purchase Price
to the Company.
(b)
Certificate of Designation . The Company has previously
filed the Certificate of Designation of the Company, in the form
attached hereto as Exhibit C (the “
Certificate of Designation ”), which
establishes the rights and preferences of the Series 6-A
Preferred.
3.
Representations and Warranties of the Company . The Company
hereby represents and warrants to Purchasers that the following
representations are true and correct as of the date hereof. For
purposes of these representations and warranties, the phrase
“ to the Company’s knowledge ”
shall mean the actual knowledge of David Hirschhorn, Todd Parker or
Dennis Smith.
3.1 Organization, Good Standing,
Corporate Power and Qualification . The Company is a
corporation duly organized, validly existing and in good standing
under the laws of the State of Delaware and has all requisite
corporate power and authority to carry on its business as presently
conducted and as proposed to be conducted. The Company is duly
qualified to transact business and is in good standing in each
jurisdiction in which the failure to so qualify would have a
Material Adverse Effect.
3.2 Capitalization . The
authorized capital stock of the Company consists of (i) 100,000,000
shares of Common Stock, 8,177,629 shares of which are issued and
outstanding, and (ii) 5,000,000 shares of preferred stock, of which
(a) 67,600 shares of Series 1-A Preferred Stock, par
value $0.01 per share, (b) 3,900 shares of Series 2-A
Preferred Stock, par value $0.01 per share, and (c) 7,462
shares of Series 5-A Preferred Stock, par value $0.01 per
share, are issued and outstanding. Except as disclosed on
Schedule 3.2 and as contemplated hereby, there are no
outstanding subscriptions, options, warrants, commitments,
agreements or arrangements for or relating to the issuance, or sale
of, or outstanding securities convertible into or exchangeable for,
any shares of capital stock of any class or other equity interests
of the Company. As of the Closing, and after giving effect to the
transactions contemplated hereby, all of the outstanding shares of
capital stock of the Company will have been duly and validly
authorized and issued and will be fully paid and non-assessable and
will have been offered,
SERIES 6-A PREFERRED STOCK AND
WARRANT PURCHASE AGREEMENT
2
issued,
sold and delivered in compliance with applicable federal and state
securities laws and not subject to any preemptive rights. When
issued in accordance with the terms of the Series 6-A Preferred and
the Warrants, the shares of Common Stock issuable upon exercise of
Series 6-A Preferred and the Warrants will be validly issued,
fully paid and non-assessable. The terms relating to the Warrants
are as set forth in Exhibit B attached hereto. The
relative rights, preferences and other terms relating to the
Series 6-A Preferred are as set forth in Exhibit C
attached hereto. There are no preemptive rights, rights of first
refusal, put or call rights or obligations or any other purchase or
redemption obligations or anti-dilution rights with respect to the
Company’s capital stock or any interests therein, other than
as disclosed on Schedule 3.2 or rights set forth herein
or in the Company’s Certificate of Incorporation or the
Certificates of Designation establishing such capital stock. Other
than as set forth herein, there are no rights to have the
Company’s capital stock registered for sale to the public in
connection with the laws of any jurisdiction, and there are no
agreements relating to the voting of the Company’s voting
securities or restrictions on the transfer of the Company’s
capital stock.
3.3 Authorization; No Conflict
. The execution, delivery and performance by the Company of this
Agreement, and the consummation by the Company of the transactions
contemplated hereby, have been duly authorized by all necessary
corporate action. This Agreement has been duly executed and
delivered by the Company and constitutes the valid and binding
obligation of the Company enforceable in accordance with its terms.
The execution of and performance of the transactions contemplated
by this Agreement and the compliance with its provisions by the
Company will not (a) conflict with or violate any provision of
the Certificate of Incorporation or Bylaws of the Company,
(b) conflict with, result in a breach of, constitute (with or
without due notice or lapse of time or both) a default under,
result in the acceleration of, create in any party the right to
accelerate, terminate, modify or cancel, or require any notice,
consent or waiver under, any material contract, lease, sublease,
license, sublicense, franchise, permit, indenture, agreement or
mortgage for borrowed money, instrument of indebtedness, Security
Interest (as defined below) or other arrangement to which the
Company is a party or by which the Company is bound or to which its
assets are subject, (c) result in the imposition of any
Security Interest upon any assets of the Company or
(d) violate any order, writ, injunction, decree, statute, rule
or regulation applicable to the Company or any of its properties or
assets. For purposes of this Agreement, “ Security
Interest ” means any mortgage, pledge, security
interest, encumbrance, charge, or other lien (whether arising by
contract or by operation of law).
3.4 Valid Issuance of Shares .
The Shares, when issued, sold and delivered in accordance with the
terms and for the consideration set forth in this Agreement, will
be validly issued, fully paid and non-assessable and free of
restrictions on transfer other than restrictions on transfer under
applicable state and federal securities laws and liens or
encumbrances created by or imposed by a Purchaser. Assuming the
accuracy of the representations of the Purchasers in
Section 4 of this Agreement and subject to the filings
described in Section 3.5 below, the Shares will be
issued in compliance with all applicable federal and state
securities laws. The Common Stock issuable upon conversion of the
Shares and exercise of the Warrants has been duly reserved for
issuance, and upon issuance, will be validly issued, fully paid and
non-assessable and free of restrictions on transfer other than
restrictions on transfer under applicable federal and state
securities laws and liens or encumbrances created by or imposed by
a Purchaser. Based in
SERIES 6-A PREFERRED STOCK AND
WARRANT PURCHASE AGREEMENT
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part
upon the representations of the Purchasers in Section 4
of this Agreement, and subject to Section 3.5 below,
the Common Stock issuable upon conversion of the Shares and
exercise of the Warrants will be issued in compliance with all
applicable federal and state securities laws.
3.5 Governmental Consents and
Filings . Assuming the accuracy of the representations made by
the Purchasers in Section 4 of this Agreement, no
consent, approval, order or authorization of, or registration,
qualification, designation, declaration or filing with, any
federal, state or local governmental authority is required on the
part of the Company in connection with the consummation of the
transactions contemplated by this Agreement, except such filings as
shall have been made prior to and shall be effective on and as of
the Closing and such filings required to be made after the Closing
under applicable federal and state securities laws.
3.6 Subsidiaries . The
Company’s subsidiaries are as set forth in the
Company’s Annual Report on Form 10-K for the fiscal year
ended September 30, 2007.
3.7 Compliance with Laws . The
Company has complied in all material respects with all laws,
regulations and orders applicable to its present and currently
proposed business and has all material permits and licenses
required thereby, except where the failure to have such permits or
licenses would not have a Material Adverse Effect.
3.8 Absence of Litigation .
Except as disclosed in the Company’s periodic reports filed
with the Securities and Exchange Commission (the “ SEC
Filings ”), there is no action, suit or proceeding
pending or, to the Company’s knowledge, threatened, against
the Company which questions the validity of this Agreement or the
right of the Company to enter into it, or which might result,
either individually or in the aggregate, in a Material Adverse
Effect.
3.9 Absence of Liabilities .
The Company does not have any material liabilities or obligations,
whether accrued, absolute, contingent or otherwise, of the type
required to be disclosed on a balance sheet other than
(i) such matters as are specifically and expressly set forth
on the Balance Sheet or (ii) those which have been incurred by
the Company in the ordinary course of business during the period
from the date of the Balance Sheet to the date hereof.
3.10 Material Contracts and
Obligations . Except as disclosed in the Company’s SEC
Filings or as disclosed on Schedule 3.10 , the Company
is not a party to, nor is it bound by any of the following types of
agreements: (a) any agreement which requires future
expenditures by the Company in excess of $25,000 or which might
result in payments to the Company in excess of $25,000,
(b) any agreement with any current officer or director of the
Company, or any “affiliate” or “associate”
of such persons (as such terms are defined in the rules and
regulations promulgated under the Securities Act), including
without limitation any agreement or other arrangement providing for
the furnishing of services by, rental of real or personal property
from, or otherwise requiring payments to, any such Person,
(c) any agreement under which the Company is restricted from
carrying on any business or other services anywhere in the world,
(d) any agreement for the disposition of a material portion of
the Company’s assets or (e) any agreement for the
acquisition of the business or shares of another party.
SERIES 6-A PREFERRED STOCK AND
WARRANT PURCHASE AGREEMENT
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3.11 Changes . Except as
disclosed in the Company’s SEC Filings, and in Schedule
3.11 , since September 30, 2007, there has not been:
(a) any
material change in the assets or liabilities of the Company from
that reflected on the Balance Sheet, except changes in the ordinary
course of business that have not caused, in the aggregate, a
Material Adverse Effect;
(b) any
damage, destruction or loss, whether or not covered by insurance,
that would have a Material Adverse Effect;
(c) any
waiver or compromise by the Company of a valuable right or of a
material debt owed to it;
(d) any
satisfaction or discharge of any lien, claim, or encumbrance or
payment of any obligation by the Company, except in the ordinary
course of business and the satisfaction or discharge of which would
not have a Material Adverse Effect;
(e) any
material change to a material contract or agreement by which the
Company or any of its assets is bound or subject;
(f) any
material change in any compensation arrangement or agreement with
any employee, officer, director or stockholder;
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