SERIES A WARRANT TO PURCHASE SHARES OF COMMON STOCK OF JUMA TECHNOLOGY CORP. Expires May 21, 2014
Exhibit
4.3
EXECUTION
COPY
THIS
WARRANT AND THE SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE HEREOF HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ SECURITIES
ACT ”), OR APPLICABLE STATE SECURITIES LAWS, AND MAY NOT BE SOLD, TRANSFERRED,
OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR RECEIPT BY THE
COMPANY OF A WRITTEN OPINION OF COUNSEL IN FORM, SUBSTANCE AND SCOPE REASONABLY
SATISFACTORY TO THE COMPANY THAT THIS WARRANT AND THE SHARES OF COMMON STOCK
ISSUABLE UPON EXERCISE HEREOF MAY BE SOLD, TRANSFERRED, OR OTHERWISE
DISPOSED OF, UNDER AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT AND
SUCH STATE SECURITIES LAWS.
SERIES A
WARRANT TO PURCHASE
SHARES OF
COMMON STOCK
OF
Expires
May 21, 2014
|
No.:
W-A-01-10
|
Number
of Shares: 1,666,667
|
|
Date
of Issuance: February 25, 2010
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FOR VALUE
RECEIVED, the undersigned, JUMA TECHNOLOGY CORP., a Delaware corporation
(together with its successors and assigns, the “ Issuer ”), hereby certifies
that Vision Opportunity Master Fund, Ltd. or its registered assigns is entitled
to subscribe for and purchase, during the Term (as hereinafter defined), up to
one million six hundred sixty-six thousand six hundred sixty-seven (1,666,667)
shares (subject to adjustment as hereinafter provided) of the duly authorized,
validly issued, fully paid and non-assessable Common Stock of the Issuer, at an
exercise price per share equal to the Warrant Price then in effect, subject,
however, to the provisions and upon the terms and conditions hereinafter set
forth. Capitalized terms used in this Warrant and not otherwise
defined herein shall have the respective meanings specified in Section
8 hereof.
1. Term. The term of
this Warrant shall commence on February 25, 2010 and shall expire at 6:00 p.m.,
Eastern Time, on May 21, 2014 (such period being the “ Term ”).
2. Method of Exercise; Payment; Issuance
of New Warrant; Transfer and Exchange.
(a) Time
of Exercise. The purchase rights represented by this Warrant may be
exercised in whole or in part during the Term.
1
(b) Method
of Exercise. The Holder hereof may exercise this Warrant, in whole or
in part, by the surrender of this Warrant (with the exercise form attached
hereto duly executed) at the principal office of the Issuer, and by the payment
to the Issuer of an amount of consideration therefor equal to the Warrant Price
in effect on the date of such exercise multiplied by the number of shares of
Warrant Stock with respect to which this Warrant is then being exercised,
payable at such Holder's election (i) by certified or official bank check or by
wire transfer to an account designated by the Issuer, (ii) by “cashless
exercise” in accordance with the provisions of subsection
(c) of this Section 2 , or
(iii) by a combination of the foregoing methods of payment selected by the
Holder of this Warrant.
(c) Cashless
Exercise. Notwithstanding any provisions herein to the contrary and
commencing eighteen (18) months following the Original Issue Date if (i) the
Registration Statement (as defined in the Purchase Agreement) covering the
Warrant Stock has not been declared effective under the Securities Act and/or
(ii) an effective Registration Statement has been suspended by the
Company for any or no reason, the Holder may exercise this Warrant by a cashless
exercise and shall receive the number of shares of Common Stock equal to an
amount (as determined below) by surrender of this Warrant at the principal
office of the Issuer together with the properly endorsed Notice of Exercise in
which event the Issuer shall issue to the Holder a number of shares of Common
Stock computed using the following formula:
X = Y -
(A)(Y)
B
|
Where
|
X
=
|
the
number of shares of Common Stock to be issued to the
Holder.
|
|
Y
=
|
the
number of shares of Common Stock purchasable upon exercise of all of the
Warrant or, if only a portion of the Warrant is being exercised, the
portion of the Warrant being
exercised.
|
|
A
=
|
the
Warrant Price.
|
B
= the Per Share Market
Value of one share of Common Stock.
(d) Issuance
of Stock Certificates. In the event of any exercise of this Warrant
in accordance with and subject to the terms and conditions hereof, certificates
for the shares of Warrant Stock so purchased shall be dated the date of such
exercise and delivered to the Holder hereof within a reasonable time, not
exceeding three (3) Trading Days after such exercise (the “ Delivery Date ”) or, at the
request of the Holder (provided that a registration statement under the
Securities Act providing for the resale of the Warrant Stock is then in effect),
issued and delivered to the Depository Trust Company (“ DTC ”) account on the
Holder’s behalf via the Deposit Withdrawal Agent Commission System (“ DWAC ”) within a reasonable
time, not exceeding three (3) Trading Days after such exercise, and the Holder
hereof shall be deemed for all purposes to be the holder of the shares of
Warrant Stock so purchased as of the date of such
exercise. Notwithstanding the foregoing to the contrary, the Issuer
or its transfer agent shall only be obligated to issue and deliver the shares to
the DTC on a holder’s behalf via DWAC if the Issuer and its transfer agent are
participating in DTC through the DWAC system. The Holder shall
deliver this original Warrant, or an indemnification undertaking with respect to
such Warrant in the case of its loss, theft or destruction, at such time that
this Warrant is fully exercised. With respect to partial exercises of
this Warrant, the Issuer shall keep written records for the Holder of the number
of shares of Warrant Stock exercised as of each date of
exercise.
2
(e) Compensation
for Buy-In on Failure to Timely Deliver Certificates Upon
Exercise. In addition to any other rights available to the Holder, if
the Issuer fails to cause its transfer agent to transmit to the Holder a
certificate or certificates representing the Warrant Stock pursuant to an
exercise on or before the Delivery Date, and if after such date the Holder is
required by its broker to purchase (in an open market transaction or otherwise)
shares of Common Stock to deliver in satisfaction of a sale by the Holder of the
Warrant Stock which the Holder anticipated receiving upon such exercise (a
“ Buy-In ”), then the
Issuer shall (1) pay in cash to the Holder the amount by which (x) the Holder’s
total purchase price (including brokerage commissions, if any) for the shares of
Common Stock so purchased exceeds (y) the amount obtained by multiplying (A) the
number of shares of Warrant Stock that the Issuer was required to deliver to the
Holder in connection with the exercise at issue times (B)
the price at which the sell order giving rise to such purchase obligation was
executed, and (2) at the option of the Holder, either reinstate the portion of
the Warrant and equivalent number of shares of Warrant Stock for which such
exercise was not honored or deliver to the Holder the number of shares of Common
Stock that would have been issued had the Issuer timely complied with its
exercise and delivery obligations hereunder. For example, if the
Holder purchases Common Stock having a total purchase price of $11,000 to cover
a Buy-In with respect to an attempted exercise of the Warrant for shares of
Common Stock with an aggregate sale price giving rise to such purchase
obligation of $10,000, under clause (1) of the immediately preceding sentence
the Issuer shall be required to pay the Holder $1,000. The Holder shall provide
the Issuer written notice indicating the amounts payable to the Holder in
respect of the Buy-In, together with applicable confirmations and other evidence
reasonably requested by the Issuer. Nothing herein shall limit a
Holder’s right to pursue any other remedies available to it hereunder, at law or
in equity including, without limitation, a decree of specific performance and/or
injunctive relief with respect to the Issuer’s failure to timely deliver
certificates representing shares of Common Stock upon exercise of this Warrant
as required pursuant to the terms hereof.
(f) Transferability/Exchangeability
of Warrant. Subject to Section 2(h) hereof, this
Warrant may be transferred by a Holder, in whole or in part, without the consent
of the Issuer. If transferred pursuant to this paragraph, this
Warrant may be transferred on the books of the Issuer by the Holder hereof in
person or by duly authorized attorney, upon surrender of this Warrant at the
principal office of the Issuer, properly endorsed (by the Holder executing an
assignment in the form attached hereto) and upon payment of any necessary
transfer tax or other governmental charge imposed upon such
transfer. This Warrant is exchangeable at the principal office of the
Issuer for Warrants to purchase the same aggregate number of shares of Warrant
Stock, each new Warrant to represent the right to purchase such number of shares
of Warrant Stock as the Holder hereof shall designate at the time of such
exchange. All Warrants issued on transfers or exchanges shall be
dated the Original Issue Date and shall be identical with this Warrant except as
to the number of shares of Warrant Stock issuable pursuant thereto.
(g) Continuing
Rights of Holder. The Issuer will, at the time of or at any time
after each exercise of this Warrant, upon the request of the Holder hereof,
acknowledge in writing the extent, if any, of its continuing obligation to
afford to such Holder all rights to which such Holder shall continue to be
entitled after such exercise in accordance with the terms of this Warrant; provided that
if any such Holder shall fail to make, or the Issuer shall fail to honor, any
such request, the failure shall not affect the continuing obligation of the
Issuer to afford such rights to such Holder.
3
(h)
Compliance with Securities Laws.
(i) The
Holder of this Warrant, by acceptance hereof, acknowledges that this Warrant and
the shares of Warrant Stock to be issued upon exercise hereof are being acquired
solely for the Holder's own account and not as a nominee for any other party,
and for investment, and that the Holder will not offer, sell or otherwise
dispose of this Warrant or any shares of Warrant Stock to be issued upon
exercise hereof except pursuant to an effective registration statement, or an
exemption from registration, under the Securities Act and any applicable state
securities laws.
(ii) Except
as provided in paragraph (iii) below, this Warrant and all certificates
representing shares of Warrant Stock issued upon exercise hereof shall be
stamped or imprinted with a legend in substantially the following
form:
THIS
WARRANT AND THE SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE HEREOF HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ SECURITIES
ACT ”), OR APPLICABLE STATE SECURITIES LAWS, AND MAY NOT BE SOLD, TRANSFERRED,
OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR RECEIPT BY THE
COMPANY OF A WRITTEN OPINION OF COUNSEL IN FORM, SUBSTANCE AND SCOPE REASONABLY
SATISFACTORY TO THE COMPANY THAT THIS WARRANT AND THE SHARES OF COMMON STOCK
ISSUABLE UPON EXERCISE HEREOF MAY BE SOLD, TRANSFERRED, OR OTHERWISE
DISPOSED OF, UNDER AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT AND
SUCH STATE SECURITIES LAWS.
(iii) The
Issuer agrees to reissue this Warrant or certificates representing any of the
Warrant Stock, without the legend set forth above if at such time, prior to
making any transfer of any such securities, the Holder shall give written notice
to the Issuer describing the manner and terms of such transfer. Such
proposed transfer will not be effected until: (a) either (i) the Issuer has
received an opinion of counsel reasonably satisfactory to the Issuer, to the
effect that the registration of such securities under the Securities Act is not
required in connection with such proposed transfer, (ii) a registration
statement under the Securities Act covering such proposed disposition has been
filed by the Issuer with the Securities and Exchange Commission and has become
effective under the Securities Act, (iii) the Issuer has received other evidence
reasonably satisfactory to the Issuer that such registration and qualification
under the Securities Act and state securities laws are not required, or (iv) the
Holder provides the Issuer with reasonable assurances that such security can be
sold pursuant to Rule 144 under the Securities Act; and (b) either (i) the
Issuer has received an opinion of counsel reasonably satisfactory to the Issuer,
to the effect that registration or qualification under the securities or “blue
sky” laws of any state is not required in connection with such proposed
disposition, or (ii) compliance with applicable state securities or “blue sky”
laws has been effected or a valid exemption exists with respect
thereto. The Issuer will respond to any such notice from a holder
within three (3) Trading Days. In the case of any proposed transfer
under this Section
2(h) , the Issuer will pay the expenses of and use reasonable efforts to
comply with any such applicable state securities or “blue sky” laws, but shall
in no event be required, (x) to qualify to do business in any state where it is
not then qualified, or (y) to take any action that would subject it to tax or to
the general service of process in any state where it is not then subject. The
restrictions on transfer contained in this Section
2(h) shall be in addition to, and not by way of limitation of,
any other restrictions on transfer contained in any other section of this
Warrant. Whenever a certificate representing the Warrant Stock is
required to be issued to a the Holder without a legend, at the request of the
Holder, in lieu of delivering physical certificates representing the Warrant
Stock, the Issuer shall cause its transfer agent to electronically transmit the
Warrant Stock to the Holder by crediting the account of the Holder's Prime
Broker with DTC through its DWAC system (to the extent not inconsistent with any
provisions of this Warrant or the Purchase Agreement).
4
(i) Accredited
Investor Status. In no event may the Holder exercise this Warrant in
whole or in part unless the Holder is an “accredited investor” as defined in
Regulation D under the Securities Act.
3. Stock Fully Paid; Reservation and
Listing of Shares; Covenants.
(a) Stock
Fully Paid. The Issuer represents, warrants, covenants and agrees
that all shares of Warrant Stock which may be issued upon the exercise of this
Warrant or otherwise hereunder will, when issued in accordance with the terms of
this Warrant, be duly authorized, validly issued, fully paid and non-assessable
and free from all taxes, liens and charges. The Issuer further
covenants and agrees that during the period within which this Warrant may be
exercised, the Issuer will at all times have authorized and reserved for the
purpose of the issuance upon exercise of this Warrant a number of authorized but
unissued shares of Common Stock equal to at least one hundred twenty percent
(120%) of the number of shares of Common Stock issuable upon exercise of this
Warrant without regard to any limitations on exercise.
(b) Reservation. If
any shares of Common Stock required to be reserved for issuance upon exercise of
this Warrant or as otherwise provided hereunder require registration or
qualification with any Governmental Authority under any federal or state law
before such shares may be so issued, the Issuer will in good faith use its best
efforts as expeditiously as possible at its expense to cause such shares to be
duly registered or qualified. If the Issuer shall list any shares of
Common Stock on any securities exchange or market it will, at its expense, list
thereon, and maintain and increase when necessary such listing of, all shares of
Warrant Stock from time to time issued upon exercise of this Warrant or as
otherwise provided hereunder (
provided that such Warrant Stock has been registered pursuant to a
registration statement under the Securities Act then in effect), and, to the
extent permissible under the applicable securities exchange rules, all unissued
shares of Warrant Stock which are at any time issuable hereunder, so long as any
shares of Common Stock shall be so listed. The Issuer will also so
list on each securities exchange or market, and will maintain such listing of,
any other securities which the Holder of this Warrant shall be entitled to
receive upon the exercise of this Warrant if at the time any securities of the
same class shall be listed on such securities exchange or market by the
Issuer.
5
(c) Covenants. The
Issuer shall not by any action including, without limitation, amending the
Certificate of Incorporation or the by-laws of the Issuer, or through any
reorganization, transfer of assets, consolidation, merger, dissolution, issue or
sale of securities or any other action, avoid or seek to avoid the observance or
performance of any of the terms of this Warrant, but will at all times in good
faith assist in the carrying out of all such terms and in the taking of all such
actions as may be necessary or appropriate to protect the rights of the Holder
hereof against dilution (to the extent specifically provided herein) or
impairment. Without limiting the generality of the foregoing, the
Issuer will (i) not permit the par value, if any, of its Common Stock to exceed
the then effective Warrant Price, (ii) not amend or modify any provision of the
Certificate of Incorporation or by-laws of the Issuer in any manner that would
materially and adversely affect the rights of the Holders of the Warrants, (iii)
take all such action as may be reasonably necessary in order that the Issuer may
validly and legally issue fully paid and nonassessable shares of Common Stock,
free and clear of any liens, claims, encumbrances and restrictions (other than
as provided herein) upon the exercise of this Warrant, and (iv) use its best
efforts to obtain all such authorizations, exemptions or consents from any
public regulatory body having jurisdiction thereof as may be reasonably
necessary to enable the Issuer to perform its obligations under this
Warrant.
(d) Loss,
Theft, Destruction, Mutilation of Warrants. Upon receipt of evidence
satisfactory to the Issuer of the ownership of and the loss, theft, destruction
or mutilation of any Warrant and, in the case of any such loss, theft or
destruction, upon receipt of indemnity or security satisfactory to the Issuer
or, in the case of any such mutilation, upon surrender and cancellation of such
Warrant, the Issuer will make and deliver, in lieu of such lost, stolen,
destroyed or mutilated Warrant, a new Warrant of like tenor and representing the
right to purchase the same number of shares of Common Stock.
(e) Payment
of Taxes. The Issuer will pay any documentary stamp taxes
attributable to the initial issuance of the Warrant Stock issuable upon exercise
of this Warrant; provided, however
, that the Issuer shall not be required to pay any tax or taxes which may be
payable in respect of any transfer involved in the issuance or delivery of any
certificates representing Warrant Stock in a name other than that of the Holder
in respect to which such shares are issued.
4. Adjustment of Warrant Price and
Number of Shares Issuable Upon Exercise. The Warrant Price and
the number of shares of Warrant Stock that may be purchased upon exercise of
this Warrant shall be subject to adjustment from time to time as set forth in
this Section
4 . The Issuer shall give the Holder notice of any event described below
which requires an adjustment pursuant to this Section
4 in accordance with the notice provisions set forth in Section 5
..
6
(a) Recapitalization,
Reorganization, Reclassification, Consolidation, Merger or Sale.
(i) In
case the Issuer after the Original Issue Date shall do any of the following
(each, a “Triggering
Event ”): (a) consolidate or merge with or into any other Person and the
Issuer shall not be the continuing or surviving Person of such consolidation or
merger, or (b) permit any other Person to consolidate with or merge into the
Issuer and the Issuer shall be the continuing or surviving Person but, in
connection with such consolidation or merger, any Capital Stock of the Issuer
shall be changed into or exchanged for Securities of any other Person or cash or
any other property, or (c) transfer all or substantially all of its properties
or assets to any other Person, or (d) effect a capital reorganization or
reclassification of its Capital Stock, then, and in the case of each such
Triggering Event, proper provision shall be made to the Warrant Price and the
number of shares of Warrant Stock that may be purchased upon exercise of this
Warrant so that, upon the basis and the terms and in the manner provided in this
Warrant, the Holder of this Warrant shall be entitled upon the exercise hereof
at any time after the consummation of such Triggering Event, to the extent this
Warrant is not exercised prior to such Triggering Event, to receive at the
Warrant Price as adjusted to take into account the consummation of such
Triggering Event, in lieu of the Common Stock issuable upon such exercise of
this Warrant prior to such Triggering Event, the Securities, cash and property
to which such Holder would have been entitled upon the consummation of such
Triggering Event if such Holder had exercised the rights represented by this
Warrant immediately prior thereto (including the right of a shareholder to elect
the type of consideration it will receive upon a Triggering Event), subject to
adjustments (subsequent to such corporate action) as nearly equivalent as
possible to the adjustments provided for elsewhere in this Section 4 , provided, however
, the Holder at its option may elect to receive an amount in cash equal to the
value of this Warrant calculated in accordance with the Black-Scholes
formula. Immediately upon the occurrence of a Triggering Event, the
Issuer shall notify the Holder in writing of such Triggering Event and provide
the calculations in determining the number of shares of Warrant Stock issuable
upon exercise of the new warrant and the adjusted Warrant Price. Upon
the Holder’s request, the continuing or surviving Person as a result of such
Triggering Event shall issue to the Holder a new warrant of like tenor
evidencing the right to purchase the adjusted number of shares of Warrant Stock
and the adjusted Warrant Price pursuant to the terms and provisions of this Section 4(a)(i)
.. Notwithstanding the foregoing to the contrary, this Section
4(a)(i) shall only apply if the surviving entity pursuant to
any such Triggering Event has a class of equity securities registered pursuant
to the Exchange Act, and its common stock is listed or quoted on a national
securities exchange, national automated quotation system or the OTC Bulletin
Board. In the event that the surviving entity pursuant to any such
Triggering Event is not a public company that is registered pursuant to the
Exchange Act, or its common stock is not listed or quoted on a national
securities exchange, national automated quotation system or the OTC Bulletin
Board, then the Holder shall have the right to demand that the Issuer pay to the
Holder an amount in cash equal to the value of this Warrant calculated in
accordance with the Black-Scholes formula.
7
(ii) In
the event that the Holder has elected not to exercise this Warrant prior to the
consummation of a Triggering Event and has also elected not to receive an amount
in cash equal to the value of this Warrant calculated in accordance with the
Black-Scholes formula pursuant to the provisions of Section
4(a)(i) above, so long as the surviving entity pursuant to any
Triggering Event is a company that has a class of equity securities registered
pursuant to the Exchange Act, and its common stock is listed or quoted on a
national securities exchange, national automated quotation system or the OTC
Bulletin Board, the surviving entity and/or each Person (other than the Issuer)
which may be required to deliver any shares of Warrant Stock (including all
Securities, cash or property) upon the exercise of this Warrant as provided
herein shall assume, by written instrument delivered to, and reasonably
satisfactory to, the Holder of this Warrant, (A) the obligations of the Issuer
under this Warrant (and if the Issuer shall survive the consummation of such
Triggering Event, such assumption shall be in addition to, and shall not release
the Issuer from, any continuing obligations of the Issuer under this Warrant)
and (B) the obligation to deliver to such Holder such Securities, cash or
property as, in accordance with the foregoing provisions of this subsection (a) ,
such Holder shall be entitled to receive, and the surviving entity and/or each
such Person shall have similarly delivered to such Holder an opinion of counsel
for the surviving entity and/or each such Person, which counsel shall be
reasonably satisfactory to such Holder, or in the alternative, a written
acknowledgement executed by the President or Chief Financial Officer of the
Issuer, stating that this Warrant shall thereafter continue in full force and
effect and the terms hereof (including, without limitation, all of the
provisions of this subsection (a) )
shall be applicable to the shares Warrant Stock (including all Securities, cash
or property) which the surviving entity and/or each such Person may be required
to deliver upon any exercise of this Warrant or the exercise of any rights
pursuant hereto.
(b) Stock
Dividends, Subdivisions and Combinations. If at any time the Issuer
shall:
(i) make
or issue or set a record date for the holders of the Common Stock for the
purpose of entitling them to receive a dividend payable in, or other
distribution of, shares of Common Stock,
(ii) subdivide
its outstanding shares of Common Stock into a larger number of shares of Common
Stock, or
(iii) combine
its outstanding shares of Common Stock into a smaller number of shares of Common
Stock,
then (1)
the number of shares of Common Stock for which this Warrant is exercisable
immediately after the occurrence of any such event shall be adjusted to equal
the number of shares of Common Stock which a record holder of the same number of
shares of Common Stock for which this Warrant is exercisable immediately prior
to the occurrence of such event would own or be entitled to receive after the
happening of such event, and (2) the Warrant Price then in effect shall be
adjusted to equal (A) the Warrant Price then in effect multiplied by the number
of shares of Common Stock for which this Warrant is exercisable immediately
prior to the adjustment divided by (B) the number of shares of Common Stock for
which this Warrant is exercisable immediately after such
adjustment.
(c)
Certain Other Distributions. If
at any time the Issuer shall make or issue or set a record date for the holders
of the Common Stock for the purpose of entitling them to receive any dividend or
other distribution of:
(i)
cash,
8
(ii)
any evidences of its indebtedness, any shares of stock of any class or any other
Securities or property of any nature whatsoever (other than cash, Common Stock
Equivalents or Additional Shares of Common Stock), or
(iii)
any warrants or other rights to subscribe for or purchase any evidences of its
indebtedness, any shares of stock of any class or any other securities or
property of any nature whatsoever (other than cash, Common Stock Equivalents or
Additional Shares of Common Stock), then (1) the number of shares of Common
Stock for which this Warrant is exercisable shall be adjusted to equal the
product of the number of shares of Common Stock for which this Warrant is
exercisable immediately prior to such adjustment multiplied by a fraction (A)
the numerator of which shall be the Per Share Market Value of Common Stock at
the date of taking such record and (B) the denominator of which shall be such
Per Share Market Value minus the amount allocable to one share of Common Stock
of any such cash so distributable and of the fair value (as determined in good
faith by the Board of Directors of the Issuer and supported by an opinion from
an investment banking firm mutually agreed upon by the Issuer and the Holder) of
any and all such evidences of indebtedness, shares of stock, other securities or
property or warrants or other subscription or purchase rights so distributable,
and (2) the Warrant Price then in effect shall be adjusted to equal (A) the
Warrant Price then in effect multiplied by the number of shares of Common Stock
for which this Warrant is exercisable immediately prior to the adjustment
divided by (B) the number of shares of Common Stock for which this Warrant is
exercisable immediately after such adjustment. A reclassification of
the Common Stock (other than a change in par value, or from par value to no par
value or from no par value to par value) into shares of Common Stock and shares
of any other class of stock shall be deemed a distribution by the Issuer to the
holders of its Common Stock of such shares of such other class of stock within
the meaning of this Section
4(c) and, if the outstanding shares of Common Stock shall be
changed into a larger or smaller number of shares of Common Stock as a part of
such reclassification, such change shall be deemed a subdivision or combination,
as the case may be, of the outstanding shares of Common Stock within the meaning
of Section 4(b)
..
(d)
Issuance of Additional Shares of Common Stock. In
the event the Issuer shall at any time within one (1) year following the
Original Issuance Date (the “
Full Ratchet Period ”) issue any Additional Shares of Common Stock
(otherwise than as provided in the foregoing subsections (b) through
(c) of this Section 4 ), at a
price per share less than the Warrant Price then in effect or without
consideration, then the Warrant Price upon each such issuance shall be adjusted
to the price equal to the consideration per share paid for such Additional
Shares of Common Stock.
(e)
Issuance of Common Stock Equivalents. In the event the Issuer shall
at any time within the Full Ratchet Period take a record of the holders of its
Common Stock for the purpose of entitling them to receive a distribution of, or
shall in any manner (whether directly or by assumption in a merger in which the
Issuer is the surviving Person) issue or sell, any Common Stock Equivalents,
whether or not the rights to exchange or convert thereunder are immediately
exercisable, and the price per share for which Common Stock is issuable upon
such conversion or exchange shall be less than the Warrant Price in effect
immediately prior to the time of such issue or sale, or if, after any such
issuance of Common Stock Equivalents, the price per share for which Additional
Shares of Common Stock may be issuable thereafter is amended or adjusted, and
such price as so amended shall be less than the Warrant Price in effect at the
time of such amendment or adjustment, then the Warrant Price then in effect
shall be adjusted as provided in Section 4(d)
.. No further adjustments of the number of shares of Common Stock for
which this Warrant is exercisable and the Warrant Price then in effect shall be
made upon the actual issue of such Common Stock upon conversion or exchange of
such Common Stock Equivalents.
9
(f) Subsequent
Common Stock and Common Stock Equivalents Issues. In the event the
Company, shall, at any time after the Full Ratchet Period, issue or sell any
Additional Shares of Common Stock or Common Stock Equivalents (otherwise than as
provided in the foregoing subsections (a) through
(e) of this Section 4 ), at a price per share less than the Warrant
Price, or without consideration, the Warrant Price then in effect upon each such
issuance shall be adjusted to that price (rounded to the nearest cent)
determined by multiplying the Warrant Price by a fraction: (1) the numerator of
which shall be equal to the sum of
(A) the number of shares of Common Stock outstanding immediately prior to the
issuance of such Additional Shares of Common Stock plus (B)
the number of shares of Common Stock (rounded to the nearest whole share) which
the aggregate consideration for the total number of such Additional Shares of
Common Stock so issued would purchase at a price per share equal to the then
Warrant Price; and (2) the denominator of which shall be equal to the number of
shares of Common Stock outstanding immediately after the issuance of such
Additional Shares of Common Stock. No adjustment of the number of
shares of Common Stock shall be made upon the issuance of any Additional Shares
of Common Stock which are issued pursuant to the exercise of any warrants or
other subscription or purchase rights or pursuant to the exercise of any
conversion or exchange rights in any Common Stock Equivalents if any such
adjustment shall previously have been made upon the issuance of such warrants or
other rights or upon the issuance of such Common Stock Equivalents (or upon the
issuance of any warrant or other rights therefore).
(g) Other
Provisions applicable to Adjustments under this Section. The
following provisions shall be applicable to the making of adjustments of the
number of shares of Common Stock for which this Warrant is exercisable and the
Warrant Price then in effect provided for in this Section 4
:
10
(i)
Computation of Consideration. To the extent that any Additional
Shares of Common Stock or any Common Stock Equivalents (or any warrants or other
rights therefor) shall be issued for cash consideration, the consideration
received by the Issuer therefor shall be the amount of the cash received by the
Issuer therefor, or, if such Additional Shares of Common Stock or Common Stock
Equivalents are offered by the Issuer for subscription, the subscription price,
or, if such Additional Shares of Common Stock or Common Stock Equivalents are
sold to underwriters or dealers for public offering without a subscription
offering, the initial public offering price (in any such case subtracting any
amounts paid or receivable for accrued interest or accrued dividends and without
taking into account any compensation, discounts or expenses paid or incurred by
the Issuer for and in the underwriting of, or otherwise in connection with, the
issuance thereof). In connection with any merger or consolidation in
which the Issuer is the surviving Person (other than any consolidation or merger
in which the previously outstanding shares of Common Stock of the Issuer shall
be changed to or exchanged for the stock or other securities of another Person),
the amount of consideration therefore shall be, deemed to be the fair value, as
determined reasonably and in good faith by the Board, of such portion of the
assets and business of the nonsurviving Person as the Board may determine to be
attributable to such shares of Common Stock or Common Stock Equivalents, as the
case may be. The consideration for any Additional Shares of Common
Stock issuable pursuant to any warrants or other rights to subscribe for or
purchase the same shall be the consideration received by the Issuer for issuing
such warrants or other rights plus the additional consideration payable to the
Issuer upon exercise of such warrants or other rights. The
consideration for any Additional Shares of Common Stock issuable pursuant to the
terms of any Common Stock Equivalents shall be the consideration received by the
Issuer for issuing warrants or other rights to subscribe for or purchase such
Common Stock Equivalents, plus the consideration paid or payable to the Issuer
in respect of the subscription for or purchase of such Common Stock Equivalents,
plus the additional consideration, if any, payable to the Issuer upon the
exercise of the right of conversion or exchange in such Common Stock
Equivalents. In the event of any consolidation or merger of the
Issuer in which the Issuer is not the surviving Person or in which the
previously outstanding shares of Common Stock of the Issuer shall be changed
into or exchanged for the stock or other securities of another Person, or in the
event of any sale of all or substantially all of the assets of the Issuer for
stock or other securities of any Person, the Issuer shall be deemed to have
issued a number of shares of its Common Stock for stock or securities or other
property of the other Person computed on the basis of the actual exchange ratio
on which the transaction was predicated, and for a consideration equal to the
fair market value on the date of such transaction of all such stock or
securities or other property of the other Person. In the event any
consideration received by the Issuer for any securities consists of property
other than cash, the fair market value thereof at the time of issuance or as
otherwise applicable shall be as determined in good faith by the
Board. In the event Common Stock is issued with other shares or
securities or other assets of the Issuer for consideration which covers both,
the consideration computed as provided in this Section
4(g)(i) shall be allocated among such securities and assets as
determined in good faith by the Board.
(ii)
When Adjustments to Be Made. The adjustments required by this Section 4 shall be made
whenever and as often as any specified event requiring an adjustment shall
occur, except that any adjustment of the number of shares of Common Stock for
which this Warrant is exercisable that would otherwise be required may be
postponed (except in the case of a subdivision or combination of shares of the
Common Stock, as provided for in Section 4(b) ) up
to, but not beyond the date of exercise if such adjustment either by itself or
with other adjustments not previously made adds or subtracts less than one
percent (1%) of the shares of Common Stock for which this Warrant is exercisable
immediately prior to the making of such adjustment. Any adjustment
representing a change of less than such minimum amount (except as aforesaid)
which is postponed shall be carried forward and made (x) as soon as such
adjustment, together with other adjustments required by this Section
4 and not previously made, would result in a minimum
adjustment, or (y) on the date of exercise. For the purpose of any adjustment,
any specified event shall be deemed to have occurred at the close of business on
the date of its occurrence.
(iii) Fractional
Interests. In computing adjustments under this Section 4, fractional
interests in Common Stock shall be taken into account to the nearest one
one-hundredth (1/100 th )
of a share.
11
(iv)
When Adjustment Not Required. If the Issuer shall take a record of
the holders of its Common Stock for the purpose of entitling them to receive a
dividend or distribution or subscription or purchase rights and shall,
thereafter and before the distribution to stockholders thereof, legally abandon
its plan to pay or deliver such dividend, distribution, subscription or purchase
rights, then thereafter no adjustment shall be required by reason of the taking
of such record and any such adjustment previously made in respect thereof shall
be rescinded and annulled.
(h) Form
of Warrant after Adjustments. The form of this Warrant need not be
changed because of any adjustments in the Warrant Price or the number and kind
of Securities purchasable upon the exercise of this Warrant.
(i)
Escrow of Warrant Stock. If after any property becomes distributable
pursuant to this Section
4 by reason of the taking of any record of the holders of Common Stock,
but prior to the occurrence of the event for which such record is taken, and the
Holder exercises this Warrant, any shares of Common Stock issuable upon exercise
by reason of such adjustment shall be deemed the last shares of Common Stock for
which this Warrant is exercised (notwithstanding any other provision to the
contrary herein) and such shares or other property shall be held in escrow for
the Holder by the Issuer to be issued to the Holder upon and to the extent that
the event actually takes place, upon payment of the current Warrant
Price. Notwithstanding any other provision to the contrary herein, if
the event for which such record was taken fails to occur or is rescinded, then
such escrowed shares shall be cancelled by the Issuer and escrowed property
returned.
5. Notice of
Adjustments. Whenever the Warrant Price or Warrant Share
Number shall be adjusted pursuant to Section 4 hereof
(for purposes of this Section 5 , each
an “ Adjustment ”), the
Issuer shall cause its Chief Financial Officer to prepare and execute a
certificate setting forth, in reasonable detail, the event requiring the
Adjustment, the amount of the Adjustment, the method by which such Adjustment
was calculated (including a description of the basis on which the Board made any
determination hereunder), and the Warrant Price and Warrant Share Number after
giving effect to such Adjustment, and shall cause copies of such certificate to
be delivered to the Holder of this Warrant promptly after each
Adjustment. Any dispute between the Issuer and the Holder of this
Warrant with respect to the matters set forth in such certificate may at the
option of the Holder of this Warrant be submitted to an Independent Appraiser
selected by the Holder; provided that
the Issuer shall have ten (10) days after receipt of notice from such Holder of
its selection of such Independent Appraiser to object thereto, in which case
such Holder shall select another such Independent Appraiser and the Issuer shall
have no such right of objection. The Independent Appraiser selected
by the Holder of this Warrant as provided in the preceding sentence shall be
instructed to deliver a written opinion as to such matters to the Issuer and
such Holder within thirty (30) days after submission to it of such
dispute. Such opinion shall be final and binding on the parties
hereto. The costs and expenses of the initial firm selected as
Independent Appraiser shall be paid equally by the Issuer and the Holder and, in
the case of an objection by the Issuer, the costs and expenses of the subsequent
firm selected as Independent Appraiser shall be paid in full by the
Issuer.
6. Fractional
Shares. No fractional shares of Warrant Stock will be issued
in connection with any exercise hereof, but in lieu of such fractional shares,
the Issuer shall round the number of shares to be issued upon exercise up to the
nearest whole number of shares.
12
7. Ownership Cap and Exercise
Restriction. Notwithstanding anything to the contrary set
forth in this Warrant, at no time may a Holder of this Warrant exercise this
Warrant if the number of shares of Common Stock to be issued pursuant to such
exercise would exceed, when aggregated with all other shares of Common Stock
owned by such Holder and its affiliates at such time, the number of shares of
Common Stock which would result in such Holder and its affiliates beneficially
owning (as determined in accordance with Section 13(d) of the Exchange Act and
the rules thereunder) in excess of 4.99% of the then issued and
outstanding shares of Common Stock; provided , however , that
upon a holder of this Warrant providing the Issuer with sixty-one (61) days
notice (pursuant to Section
12 hereof) (the “ Waiver Notice ”) that such
Holder would like to waive this Section
7 with regard to any or all shares of Common Stock issuable
upon exercise of this Warrant, this Section 7 will be
of no force or effect with regard to all or a portion of the Warrant referenced
in the Waiver Notice; provided , further , that
during the sixty-one (61) day period prior to the Expiration Date of this
Warrant the Holder may waive this Section
7 upon providing the Waiver Notice at any time during such
sixty-one (61) day period; and provided , further , that
any Waiver Notice during the sixty-one (61) day period prior to the Expiration
Date will not be effective until the last day of the Term.
8. Definitions. For
the purposes of this Warrant, the following terms have the following
meanings:
“Additional Shares of Common
Stock” means all shares of Common Stock issued by the Issuer after the
Original Issue Date, and all shares of Other Common, if any, issued by the
Issuer after the Original Issue Date, except: (i) securities issued (other than
for cash) in connection with a merger, acquisition, or consolidation that do not
exceed 25% of the outstanding Common Stock of the Company as of the date of the
Purchase Agreement (such percentage subject to adjustment in a manner consistent
with the adjustments to the Warrant Price contemplated in Section
4 hereof) and such issuances are determined in the light of
the whole transaction to which they are a part to be in the best interests of
the Company, (ii) securities issued pursuant to the conversion or exercise of
convertible or exercisable securities issued or outstanding on or prior to the
date of the Purchase Agreement or issued pursuant to the Purchase Agreement (so
long as the conversion or exercise price in such securities are not amended to
lower such price and/or adversely affect the Holders), (iii) Common Stock issued
or the issuance or grants of options to purchase Common Stock pursuant to the
Company’s stock option plans and employee stock purchase plans that either (x)
exist on the date of the Purchase Agreement, or (y) do not exceed fifteen
percent (15%) of the outstanding Common Stock of the Company as of the date of
the Purchase Agreement (such percentage subject to adjustment in a manner
consistent with the adjustments to the Warrant Price contemplated in Section
4 hereof), and (iv) securities issued in connection with bona
fide strategic license agreements or other partnering
agreements so long as such issuances are not for the purpose of raising capital
which are approved by a majority of its independent directors and such issuances
are determined in the light of the whole transaction to which they are a part to
be in the best interests of the Company.
“Board” shall mean the Board of
Directors of the Issuer.
13
“Capital Stock” means and
includes (i) any and all shares, interests, participations or other equivalents
of or interests in (however designated) corporate stock, including, without
limitation, shares of preferred or preference stock, (ii) all partnership
interests (whether general or limited) in any Person which is a partnership,
(iii) all membership interests or limited liability company interests in any
limited liability company, and (iv) all equity or ownership interests in any
Person of any other type.
“Certificate of Incorporation”
means the Certificate of Incorporation of the Issuer as in effect on the
Original Issue Date, and as hereafter from time to time amended, modified,
supplemented or restated in accordance with the terms hereof and thereof and
pursuant to applicable law.
“Common Stock” means the Common
Stock, $0.0001 par value per share, of the Issuer and any other Capital Stock
into which such stock may hereafter be changed.
“Common Stock Equivalent” means
any Convertible Security or warrant, option or other right to subscribe for or
purchase any Additional Shares of Common Stock or any Convertible
Security.
“Convertible Securities” means
evidences of indebtedness, shares of Capital Stock or other Securities which are
or may be at any time convertible into or exchangeable for Additional Shares of
Common Stock. The term “ Convertible Security ” means
one of the Convertible Securities.
“Delivery Date” shall be the
date not exceeding three (3) Trading Days after an exercise of this
Warrant.
“Exchange Act” means the
Securities Exchange Act of 1934, as amended.
“Expiration Date” means May 21,
2014.
“Governmental Authority” means
any governmental, regulatory or self-regulatory entity, department, body,
official, authority, commission, board, agency or instrumentality, whether
federal, state or local, and whether domestic or foreign.
“Holders” mean the Persons who
shall from time to time own any Warrant. The term “Holder” means one
of the Holders.
“Independent Appraiser” means a
nationally recognized or major regional investment banking firm or firm of
independent certified public accountants of recognized standing (which may be
the firm that regularly examines the financial statements of the Issuer) that is
regularly engaged in the business of appraising the Capital Stock or assets of
corporations or other entities as going concerns, and which is not affiliated
with either the Issuer or the Holder of any Warrant.
“Issuer” means Juma Technology
Corp., a Delaware corporation, and its successors.
14
“Majority Holders” means at any
time the Holders of Warrants exercisable for a majority of the shares of Warrant
Stock issuable under the Warrants at the time outstanding.
“Original Issue Date” means
February 25, 2010.
“OTC Bulletin Board” means the
over-the-counter electronic bulletin board.
“Other Common” means any other
Capital Stock of the Issuer of any class which shall be authorized at any time
after the date of this Warrant (other than Common Stock) and which shall have
the right to participate in the distribution of earnings and assets of the
Issuer without limitation as to amount.
“Outstanding Common Stock”
means, at any given time, the aggregate amount of outstanding shares of Common
Stock, assuming full exercise, conversion or exchange (as applicable) of all
options, warrants and other Securities which are convertible into or exercisable
or exchangeable for, and any right to subscribe for, shares of Common Stock that
are outstanding at such time.
“Person” means an individual,
corporation, limited liability company, partnership, joint stock company, trust,
unincorporated organization, joint venture, Governmental Authority or other
entity of whatever nature.
“Per Share Market Value” means
on any particular date (a) the last closing bid price per share of the Common
Stock on such date on the OTC Bulletin Board or another registered national
stock exchange on which the Common Stock is then listed, or if there is no such
price on such date, then the closing bid price on such exchange or quotation
system on the date nearest preceding such date, or (b) if the Common Stock is
not listed then on the OTC Bulletin Board or any registered national stock
exchange, the last closing bid price for a share of Common Stock in the
over-the-counter market, as reported by the OTC Bulletin Board or in the
National Quotation Bureau Incorporated or similar organization or agency
succeeding to its functions of reporting prices) at the close of business on
such date, or (c) if the Common Stock is not then reported by the OTC Bulletin
Board or the National Quotation Bureau Incorporated (or similar organization or
agency succeeding to its functions of reporting prices), then the “Pink Sheet”
quotes for the applicable Trading Days preceding such date of determination, or
(d) if the Common Stock is not then publicly traded the fair market value of a
share of Common Stock as determined by an Independent Appraiser selected in good
faith by the Majority Holders; provided, however
, that the Issuer, after receipt of the determination by such Independent
Appraiser, shall have the right to select an additional Independent Appraiser,
in which case, the fair market value shall be equal to the average of the
determinations by each such Independent Appraiser; and provided,
further that all determinations of the Per Share Market Value
shall be appropriately adjusted for any stock dividends, stock splits or other
similar transactions during such period. The determination of fair
market value by an Independent Appraiser shall be based upon the fair market
value of the Issuer determined on a going concern basis as between a willing
buyer and a willing seller and taking into account all relevant factors
determinative of value, and shall be final and binding on all
parties. In determining the fair market value of any shares of Common
Stock, no consideration shall be given to any restrictions on transfer of the
Common Stock imposed by agreement or by federal or state securities laws, or to
the existence or absence of, or any limitations on, voting
rights.
15
“Purchase Agreement” means the
Note and Warrant Purchase Agreement dated as of February 25, 2010, among the
Issuer and the Purchasers.
“Purchasers” means the
purchasers of the Notes and the Warrants issued by the Issuer pursuant to the
Purchase Agreement.
“Securities” means any debt or
equity securities of the Issuer, whether now or hereafter authorized, any
instrument convertible into or exchangeable for Securities or a Security, and
any option, warrant or other right to purchase or acquire any
Security. “Security” means one of the Securities.
“Securities Act” means the
Securities Act of 1933, as amended, or any similar federal statute then in
effect.
“Subsidiary” means any
corporation at least 50% of whose outstanding Voting Stock shall at the time be
owned directly or indirectly by the Issuer or by one or more of its
Subsidiaries, or by the Issuer and one or more of its Subsidiaries.
“Term” has the meaning
specified in Section 1
hereof.
“Trading Day” means (a) a day
on which the Common Stock is traded on the OTC Bulletin Board, or (b) if the
Common Stock is not traded on the OTC Bulletin Board, a day on which the Common
Stock is quoted in the over-the-counter market as reported by the National
Quotation Bureau Incorporated (or any similar organization or agency succeeding
its functions of reporting prices); provided, however
, that in the event that the Common Stock is not listed or quoted as set forth
in (a) or (b) hereof, then Trading Day shall mean any day except Saturday,
Sunday and any day which shall be a legal holiday or a day on which banking
institutions in the State of New York are authorized or required by law or other
government action to close.
“Voting Stock” means, as
applied to the Capital Stock of any corporation, Capital Stock of any class or
classes (however designated) having ordinary voting power for the election of a
majority of the members of the Board of Directors (or other governing body) of
such corporation, other than Capital Stock having such power only by reason of
the happening of a contingency.
“Warrants” means the Warrants
issued and sold pursuant to the Purchase Agreement, including, without
limitation, this Warrant, and any other warrants of like tenor issued in
substitution or exchange for any thereof pursuant to the provisions of Section 2(c), 2(d) or
2(e) hereof or of any of such other Warrants.
“Warrant Price” initially means
$0.15, as such price may be adjusted from time to time as shall result from the
adjustments specified in this Warrant, including Section
4 hereto.
16
“Warrant Share Number” means at
any time the aggregate number of shares of Warrant Stock which may at such time
be purchased upon exercise of this Warrant, after giving effect to all prior
adjustments and increases to such number made or required to be made under the
terms hereof.
“Warrant Stock” means Common
Stock issuable upon exercise of any Warrant or Warrants or otherwise issuable
pursuant to any Warrant or Warrants and/or Securities, cash and property to
which such Holder would have been entitled upon the occurrence of certain events
set forth in Section
4 .
9. Other Notices. In
case at any time:
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(A)
|
the
Issuer shall make any distributions to the holders of Common Stock;
or
|
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(B)
|
the
Issuer shall authorize the granting to all holders of its Common Stock of
rights to subscribe for or purchase any shares of Capital Stock of any
class or other rights; or
|
|
(C)
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there
shall be any reclassification of the Capital Stock of the Issuer;
or
|
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(D)
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there
shall be any capital reorganization by the Issuer;
or
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(E)
|
there
shall be any (i) consolidation or merger involving the Issuer or (ii)
sale, transfer or other disposition of all or substantially all of the
Issuer's property, assets or business (except a merger or other
reorganization in which the Issuer shall be the surviving corporation and
its shares of Capital Stock shall continue to be outstanding and unchanged
and except a consolidation, merger, sale, transfer or other disposition
involving a wholly-owned Subsidiary);
or
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(F)
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there
shall be a voluntary or involuntary dissolution, liquidation or winding-up
of the Issuer or any partial liquidation of the Issuer or distribution to
holders of Common Stock;
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then, in
each of such cases, the Issuer shall give written notice to the Holder of the
date on which (i) the books of the Issuer shall close or a record shall be taken
for such dividend, distribution or subscription rights or (ii) such
reorganization, reclassification, consolidation, merger, disposition,
dissolution, liquidation or winding-up, as the case may be, shall take
place. Such notice also shall specify the date as of which the
holders of Common Stock of record shall participate in such dividend,
distribution or subscription rights, or shall be entitled to exchange their
certificates for Common Stock for securities or other property deliverable upon
such reorganization, reclassification, consolidation, merger, disposition,
dissolution, liquidation or winding-up, as the case may be. Such
notice shall be given at least twenty (20) days prior to the action in question
and not less than ten (10) days prior to the record date or the date on which
the Issuer's transfer books are closed in respect thereto. This
Warrant entitles the Holder to receive copies of all financial and other
information distributed or required to be distributed to the holders of the
Common Stock.
17
10. Amendment and Waiver; Failure or
Indulgence Not Waiver. Any term, covenant, agreement or
condition in this Warrant may be amended, or compliance therewith may be waived
(either generally or in a particular instance and either retroactively or
prospectively), by a written instrument or written instruments executed by the
Issuer and the Majority Holders; provided, however , that no
such amendment or waiver shall reduce the Warrant Share Number, increase the
Warrant Price, shorten the period during which this Warrant may be exercised or
modify any provision of this Section
10 without the consent of the Holder of this
Warrant. No consideration shall be offered or paid to any person to
amend or consent to a waiver or modification of any provision of this Warrant
unless the same consideration is also offered to all holders of the
Warrants. No failure or delay on the part of the Holder in the
exercise of any power, right or privilege hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such power, right or
privilege preclude other or further exercise thereof or of any other right,
power or privilege, nor shall any waiver by the Holder of any such right or
rights on any one occasion be deemed a waiver of the same right or rights on any
future occasion.
11. Governing Law;
Jurisdiction. The parties acknowledge and agree that any
claim, controversy, dispute or action relating in any way to this agreement or
the subject matter of this agreement shall be governed solely by the laws of the
State of New York, without regard to any conflict of laws
doctrines. The parties irrevocably consent to being served with legal
process issued from the state and federal courts located in New York and
irrevocably consent to the exclusive personal jurisdiction of the federal and
state courts situated in the State of New York. The parties
irrevocably waive any objections to the personal jurisdiction of these
courts. Said courts shall have sole and exclusive jurisdiction over
any and all claims, controversies, disputes and actions which in any way relate
to this agreement or the subject matter of this agreement. The
parties also irrevocably waive any objections that these courts constitute an
oppressive, unfair, or inconvenient forum and agree not to seek to change venue
on these grounds or any other grounds.
12.
Notices. Any
notice, demand, request, waiver or other communication required or permitted to
be given hereunder shall be in writing and shall be effective (a) upon hand
delivery or facsimile at the address or number designated below (if delivered on
a business day during normal business hours where such notice is to be
received), or the first business day following such delivery (if delivered other
than on a business day during normal business hours where such notice is to be
received) or (b) on the second business day following the date of mailing by
express courier service, fully prepaid, addressed to such address, or upon
actual receipt of such mailing, whichever shall first occur. The
addresses for such communications shall be:
18
|
If
to the Issuer:
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Juma
Technology, Corp.
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▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:
Chief Executive Officer
Tel. No.:
(▇▇▇) ▇▇▇-▇▇▇▇
Fax No.:
(▇▇▇) ▇▇▇-▇▇▇▇
with
copies (which copies
shall not
constitute notice)
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to:
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▇▇▇▇▇▇▇
▇▇▇▇▇▇ LLP
|
▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇
▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:
▇▇▇ ▇▇▇▇▇▇▇▇▇, Esq.
Tel. No.:
(▇▇▇) ▇▇▇-▇▇▇▇
Fax No.:
(▇▇▇) ▇▇▇-▇▇▇▇
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If
to any Holder:
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At
the address of such Holder set forth on Exhibit A to the
Purchase Agreement, with copies to:
|
Sadis
& ▇▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇
▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq.
Tel. No.:
(▇▇▇) ▇▇▇-▇▇▇▇
Fax No.:
(▇▇▇) ▇▇▇-▇▇▇▇
Any party
hereto may from time to time change its address for notices by giving written
notice of such changed address to the other party hereto.
13. Warrant Agent. The
Issuer may, by written notice to each Holder of this Warrant, appoint an agent
having an office in New York, New York for the purpose of issuing shares of
Warrant Stock on the exercise of this Warrant pursuant to Section
2(e) hereof, exchanging this Warrant pursuant to Section
2(e) hereof or replacing this Warrant pursuant to Section 3(d)
hereof, or any of the foregoing, and thereafter any such issuance, exchange or
replacement, as the case may be, shall be made at such office by such
agent.
14. Remedies. The
remedies provided in this Warrant shall be cumulative and in addition to all
other remedies available under this Warrant, at law or in equity (including,
without limitation, a decree of specific performance and/or other injunctive
relief), no remedy contained herein shall be deemed a waiver of compliance with
the provisions giving rise to such remedy and nothing herein shall limit
Holder's right to pursue actual damages for any failure by the Issuer to comply
with the terms of this Warrant. Amounts set forth or provided for
herein with respect to payments, exercise and the like (and the computation
thereof) shall be the amounts to be received by the Holder hereof and shall not,
except as expressly provided herein, be subject to any other obligation of the
Issuer (or the performance thereof). The Issuer acknowledges that a
breach by it of its obligations hereunder will cause irreparable and material
harm to the Holder and that the remedy at law for any such breach may be
inadequate. Therefore the Issuer agrees that, in the event of any such breach or
threatened breach, the Holder shall be entitled, in addition to all other
available rights and remedies, at law or in equity, to seek and obtain such
equitable relief, including but not limited to an injunction restraining any
such breach or threatened breach, without the necessity of showing economic loss
and without any bond or other security being required.
19
15. Successors and
Assigns. This Warrant and the rights evidenced hereby shall
inure to the benefit of and be binding upon the successors and assigns of the
Issuer, the Holder hereof and (to the extent provided herein) the Holders of
Warrant Stock issued pursuant hereto, and shall be enforceable by any such
Holder or Holder of Warrant Stock.
16. Construction. This
Warrant shall be deemed to be jointly drafted by the Company and the Holder and
shall not be construed against any person as the drafter hereof.
17. Headings. The
headings of the Sections of this Warrant are for convenience of reference only
and shall not, for any purpose, be deemed a part of this Warrant.
18. Registration
Rights. The Holder of this Warrant is entitled to the benefit
of certain registration rights with respect to the shares of Warrant Stock
issuable upon the exercise of this Warrant pursuant to the Purchase Agreement
and the registration rights with respect to the shares of Warrant Stock issuable
upon the exercise of this Warrant by any subsequent Holder may only be assigned
in accordance with the terms and provisions of the Purchase
Agreement.
19. Enforcement
Expenses. The Issuer agrees to pay all costs and expenses of
the Holder incurred as a result of enforcement of this Warrant, including,
without limitation, reasonable attorneys' fees and expenses.
20. Binding
Effect. The obligations of the Issuer and the Holder set
forth herein shall be binding upon the successors and assigns of each such
party, whether or not such successors or assigns are permitted by the terms
hereof.
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blank]
20
IN
WITNESS WHEREOF, the Issuer has executed this Series A Warrant as of the day and
year first above written.
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By:
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Name:
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Title:
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21
EXERCISE
FORM
SERIES A
WARRANT
The
undersigned _______________, pursuant to the provisions of the within Warrant,
hereby elects to purchase _____ shares of Common Stock of Juma Technology Corp.
covered by the within Warrant.
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Dated:
_________________
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Signature
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Address
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Number of
shares of Common Stock beneficially owned or deemed beneficially owned by the
Holder on the date of Exercise: _________________________
The
undersigned is an “accredited investor” as defined in Regulation D under the
Securities Act of 1933, as amended.
The
undersigned intends that payment of the Warrant Price shall be made as (check
one):
Cash
Exercise_______
Cashless
Exercise_______
If the
Holder has elected a Cash Exercise, the Holder shall pay the sum of $________ by
certified or official bank check (or via wire transfer) to the Issuer in
accordance with the terms of the Warrant.
If the
Holder has elected a Cashless Exercise, a certificate shall be issued to the
Holder for the number of shares equal to the whole number portion of the product
of the calculation set forth below, which is ___________. The
Company shall pay a cash adjustment in respect of the fractional portion of the
product of the calculation set forth below in an amount equal to the product of
the fractional portion of such product and the Per Share Market Value on the
date of exercise, which product is ____________.
X = Y -
(A)(Y)
B
Where:
The
number of shares of Common Stock to be issued to the Holder
__________________(“X”).
The
number of shares of Common Stock purchasable upon exercise of all of the Warrant
or, if only a portion of the Warrant is being exercised, the portion of the
Warrant being exercised ___________________________ (“Y”).
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The
Warrant Price ______________ (“A”).
The Per
Share Market Value of one share of Common Stock_______________________
(“B”).
ASSIGNMENT
FOR VALUE
RECEIVED, _________________ hereby sells, assigns and transfers unto
__________________ the within Warrant and all rights evidenced thereby and does
irrevocably constitute and appoint _____________, attorney, to transfer the said
Warrant on the books of the within named corporation.
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Dated:
_________________
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Signature
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Address
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PARTIAL
ASSIGNMENT
FOR VALUE
RECEIVED, _________________ hereby sells, assigns and transfers unto
__________________ the right to purchase _________ shares of Warrant Stock
evidenced by the within Warrant together with all rights therein, and does
irrevocably constitute and appoint ___________________, attorney, to transfer
that part of the said Warrant on the books of the within named
corporation.
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Dated:
_________________
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Signature
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Address
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FOR USE
BY THE ISSUER ONLY:
This
Warrant No. W-___ canceled (or transferred or exchanged) this _____ day of
___________, _____, shares of Common Stock issued therefor in the name of
_______________, Warrant No. W-_____ issued for ____ shares of Common Stock in
the name of _______________.
ii