SERIES B WARRANT TO PURCHASE SHARES OF COMMON STOCK OF JUMA TECHNOLOGY, CORP. Expires August 16, 2012
EXECUTION
VERSION
Exhibit
4.5
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 ANY STATE SECURITIES LAWS AND MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE
DISPOSED OF UNLESS REGISTERED UNDER THE SECURITIES ACT AND UNDER APPLICABLE
STATE SECURITIES LAWS OR THE ISSUER SHALL HAVE RECEIVED AN OPINION OF COUNSEL
REASONABLY SATISFACTORY TO THE ISSUER THAT REGISTRATION OF SUCH SECURITIES
UNDER
THE SECURITIES ACT AND UNDER THE PROVISIONS OF APPLICABLE STATE SECURITIES
LAWS
IS NOT REQUIRED.
SERIES
B
WARRANT TO PURCHASE
SHARES
OF
COMMON STOCK
OF
JUMA
TECHNOLOGY, CORP.
Expires
August 16, 2012
|
No.:
W-B-01
|
Number
of Shares: 2,777,778
|
|
Date
of Issuance: August 16, 2007
|
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 2,777,778 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 August 16, 2007 and shall expire at
6:00
p.m., Eastern Time, on August 16, 2012 (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 for such number of shares of Common Stock equal to the pro
rata
amount of the number of shares of Common Stock that have been exercised by
the
Holder pursuant to the Series C Warrant issued by the Issuer to the Holder
pursuant to the Purchase Agreement.
-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 one (1)
year following the Original Issue Date if the Per Share Market Value of one
share of Common Stock is greater than the Warrant Price (at the date of
calculation as set forth below), 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.
-3-
(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.
(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 ANY STATE SECURITIES LAWS AND MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE
DISPOSED OF UNLESS REGISTERED UNDER THE SECURITIES ACT AND UNDER APPLICABLE
STATE SECURITIES LAWS OR THE ISSUER SHALL HAVE RECEIVED AN OPINION OF COUNSEL
REASONABLY SATISFACTORY TO THE ISSUER THAT REGISTRATION OF SUCH SECURITIES
UNDER
THE SECURITIES ACT AND UNDER THE PROVISIONS OF APPLICABLE STATE SECURITIES
LAWS
IS NOT REQUIRED.
(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 Securities Exchange Act of 1934, as amended, 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 Securities Exchange Act of 1934, as amended, 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 Securities Exchange Act of 1934, as amended, 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.
-8-
(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,
(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 two (2) years 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.
-9-
(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.
(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:
(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.
-10-
(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.
-11-
(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 (1/100th)
of a
share.
(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.
-12-
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.
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 at such
time, the number of shares of Common Stock which would result in such Holder
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
13
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
this provision shall be of no further force or effect during the sixty-one
(61)
days immediately preceding the expiration of the term of this
Warrant.
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 Issuer 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) the Warrant Stock, (iv)
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 ten percent (10%) of the outstanding Common Stock of the Company as
of
the date of the Purchase Agreement,
(v) any
warrants issued to the placement agent and its designees for the transactions
contemplated by the Purchase Agreement, and (vi) 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.
-13-
“Board"
shall
mean the Board of Directors of the Issuer.
"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.
"DTC"
means
the Depository Trust Company.
"DWAC"
means
the Deposit Withdrawal Agent Commission System.
"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.
-14-
"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.
"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
August 16, 2007.
"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 August 16, 2007, 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.
-16-
"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 $1.35, as such price may be adjusted from time to time as shall
result from the adjustments specified in this Warrant, including Section
4
hereto.
"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:
|
(A)
|
the
Issuer shall make any distributions to the holders of Common Stock;
or
|
|
(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)
|
there
shall be any reclassification of the Capital Stock of the Issuer;
or
|
|
(D)
|
there
shall be any capital reorganization by the Issuer;
or
|
|
(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
|
-17-
|
(F)
|
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;
|
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.
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 Delaware, 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.
-18-
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 by telecopy 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:
| If to the Issuer: |
Juma
Technology, Inc
▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:
Chief Executive Officer
Tel.
No.: (▇▇▇) ▇▇▇-▇▇▇▇
Fax
No.: (▇▇▇) ▇▇▇-▇▇▇▇
|
|
with
copies (which copies
shall
not constitute notice)
to:
|
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP
▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇
▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:
▇▇▇ ▇▇▇▇▇▇▇▇▇, Esq.
Tel.
No.: (▇▇▇) ▇▇▇-▇▇▇▇
Fax
No.: (▇▇▇) ▇▇▇-▇▇▇▇
|
| If to any Holder: | 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.
-19-
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 a
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.
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 all the Holders
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 Registration Rights 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 Registrations Rights Agreement and Section
2(f)
hereof.
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.
[remainder
of page intentionally left blank]
-20-
IN
WITNESS WHEREOF, the Issuer has executed this Series B Warrant as of the day
and
year first above written.
| JUMA TECHNOLOGY, CORP. | ||
| |
|
|
| By: | ||
|
Name: |
||
| Title: | ||
-21-
EXERCISE
FORM
SERIES
B
WARRANT
JUMA
TECHNOLOGY, INC.
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.
| Dated: _________________ | Signature __________________________________ |
| Address __________________________________ | |
|
__________________________________
|
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 Ordinary Shares to be issued to the Holder
__________________(“X”).
The
number of Ordinary Shares 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”).
i
The
Warrant Price ______________ (“A”).
The
Per
Share Market Value of one Ordinary Share _______________________
(“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.
| Dated: _________________ | Signature __________________________________ |
| Address __________________________________ | |
|
__________________________________
|
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.
| Dated: _________________ | Signature __________________________________ |
| Address __________________________________ | |
|
__________________________________
|
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