AMENDMENT NO. 2 TO SERIES B WARRANTS AND AMENDMENT NO. 4 TO SERIES C WARRANTS OF JUMA TECHNOLOGY CORP.
Exhibit
4.2
AMENDMENT
NO. 2 TO
SERIES
B WARRANTS
AND
AMENDMENT
NO. 4 TO
SERIES
C WARRANTS
OF
THIS
AMENDMENT NO. 2 TO SERIES B WARRANTS AND AMENDMENT NO. 4 TO SERIES C WARRANTS
OF
JUMA TECHNOLOGY CORP. (this “Amendment”),
dated
as of November 13, 2008 is made by and between Juma Technology Corp., a Delaware
corporation (the “Issuer”),
and
the holders (each, a “Holder”
and
together, the “Holders”)
of the
warrants, as previously amended and exercised listed on Exhibit
A (the
“Series
B Warrants”
and
the
“Series
C Warrants,”
respectively, and together the “Warrants”).
WHEREAS,
the Issuer and the Holders desire to amend certain provisions of the Warrants
as
described herein.
NOW,
THEREFORE, for good and valuable consideration, the receipt and sufficiency
of
which are hereby acknowledged, the parties intending to be legally bound, hereby
agree as follows:
1. Capitalized
Terms.
Capitalized terms used, but not defined, herein, shall have the meanings
ascribed to such terms in the Warrants.
2. Amendment
to Series B Warrants; Warrant Price.
The
definition of “Warrant Price” in Section 8 of the Series B Warrants shall be
deleted in its entirety and replaced with the following:
“Warrant
Price” means
$0.46, as such price may be adjusted from time to time as shall result from
the
adjustments specified in this Warrant, including Section
4 hereto.”
3. Amendment
to Series C Warrants; Warrant Price.
The
definition of “Warrant Price” in Section 8 of the Series C Warrants shall be
deleted in its entirety and replaced with the following:
“Warrant
Price” means
$3.512, as such price may be adjusted from time to time as shall result from
the
adjustments specified in this Warrant, including Section
4 hereto.”
4. Amendment
to Series B Warrants; Section 7. Section
7
of the Series B Warrants shall be deleted in its entirety and replaced with
the
following:
“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 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.
5. Amendment
to Series C Warrants; Warrant Shares.
The
number of Series B Preferred Shares still available for purchase pursuant to
each of the Series C Warrants shall be amended from and after the date hereof
as
listed below:
|
Holder
|
Warrant Number
|
Amended Warrant Shares
|
||
|
Vision
Opportunity Master Fund, Ltd.
|
W-C-01A
|
274,785.7
|
||
|
Vision
Capital Advantage Fund, L.P.
|
W-C-01B
|
81,214.3
|
6. Further
Assurances.
From
and after the date of this Amendment, upon the request of a Holder or the
Issuer, each of the Issuer and the Holders shall execute and deliver such
instruments, documents and other writings as may be reasonably necessary or
desirable to confirm and carry out and to effectuate fully the intent and
purposes of this Amendment.
7.
Board
Resolutions.
Prior
to the signing of this Amendment, the Issuer shall have provided the Holder
with
a certified copy of the resolutions of the Board of Directors (or if the Board
of Directors takes action by unanimous written consent, a copy of such unanimous
written consent containing all of the signatures of the members of the Board
of
Directors) of the Issuer, authorizing the execution, delivery and performance
of
this Amendment.
8. Ratification.
Except
as expressly amended hereby, all of the terms, provisions and conditions of
the
Warrants are hereby ratified and confirmed in all respects by each party hereto
and, except as expressly amended hereby, are, and hereafter shall continue,
in
full force and effect.
9.
Entire
Agreement.
This
Amendment and the Warrants constitute the entire agreement of the parties with
respect to the subject matter hereof and supersede all prior and contemporaneous
agreements and understandings, both written and oral, between the parties with
respect thereto.
10.
Amendments.
No
amendment, supplement, modification or waiver of this Amendment shall be binding
unless executed in writing by all parties hereto.
11.
Counterparts.
This
Amendment may be executed in two or more counterparts, each of which shall
constitute an original but all of which when taken together shall constitute
but
one contract. Each party shall be entitled to rely on a facsimile or emailed
(.pdf) signature of any other party hereunder as if it were an original.
12.
Governing
Law.
This
Amendment shall be governed by and construed in accordance with the internal
laws of the State of New York, without giving effect to any of the conflicts
of
law principles which would result in the application of the substantive law
of
another jurisdiction.
13.
Successors
and Assigns.
This
Amendment shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns.
[the
remainder of the page has been intentionally left blank]
IN
WITNESS WHEREOF, the parties have executed this Amendment as of the date first
above written.
|
The
Issuer:
|
|
|
By:
|
/s/
|
|
▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
|
|
|
Chief
Financial Officer
|
|
|
The
Holders:
|
|
|
VISION
OPPORTUNITY MASTER FUND, LTD.
|
|
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By:
|
/s/
|
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▇▇▇▇
▇▇▇▇▇▇▇▇
|
|
|
Director
|
|
|
VISION
CAPITAL ADVANTAGE FUND, L.P.
|
|
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By:
VCAF GP, LLC
|
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Its:
General Partner
|
|
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By:
|
/s/
|
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▇▇▇▇
▇▇▇▇▇▇▇▇
|
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Authorized
Signatory
|
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EXHIBIT
A
|
Holder
|
Warrant Series
|
Warrant Number
|
||
|
Vision
Opportunity Master Fund, Ltd.
|
Series
B Warrant
|
W-B-01A
|
||
|
Vision
Opportunity Master Fund, Ltd.
|
Series
C Warrant
|
W-C-01A
|
||
|
Vision
Capital Advantage Fund, L.P.
|
Series
B Warrant
|
W-B-01B
|
||
|
Vision
Capital Advantage Fund, L.P.
|
Series
C Warrant
|
W-C-01B
|