NOTE AND WARRANT PURCHASE AGREEMENT Dated as of February 25, 2010 among JUMA TECHNOLOGY CORP. and THE PURCHASERS LISTED ON EXHIBIT A
Exhibit
4.1
EXECUTION
COPY
Dated
as of February 25, 2010
among
and
THE
PURCHASERS LISTED ON EXHIBIT A
TABLE
OF CONTENTS
Page
|
||
Section
1.1
|
Purchase
and Sale of Notes
|
1
|
Section
1.2
|
Warrants
|
1
|
Section
1.3
|
Conversion
Shares
|
1
|
Section
1.4
|
Purchase
Price and Closing
|
2
|
Section
2.1
|
Representations
and Warranties of the Company
|
2
|
Section
2.2
|
Representations
and Warranties of the Purchasers
|
12
|
Section
3.1
|
Securities
Compliance
|
14
|
Section
3.2
|
Registration
and Listing
|
15
|
Section
3.3
|
Inspection
Rights
|
15
|
Section
3.4
|
Compliance
with Laws
|
15
|
Section
3.5
|
Keeping
of Records and Books of Account
|
15
|
Section
3.6
|
Furnishing
of Information
|
16
|
Section
3.7
|
Reporting
Requirements
|
16
|
Section
3.8
|
Amendments
|
16
|
Section
3.9
|
Other
Agreements
|
16
|
Section
3.10
|
Distributions
|
16
|
Section
3.11
|
Use
of Proceeds
|
16
|
Section
3.12
|
Reservation
of Shares
|
17
|
Section
3.13
|
Transfer
Agent Instructions
|
17
|
Section
3.14
|
Disposition
of Assets
|
17
|
Section
3.15
|
Reporting
Status
|
17
|
Section
3.16
|
Disclosure
of Transaction
|
18
|
Section
3.17
|
Disclosure
of Material Information
|
18
|
Section
3.18
|
Pledge
of Securities
|
18
|
Section
3.19
|
Form
S-1 Eligibility
|
18
|
Section
3.20
|
DTC
|
18
|
Section
3.21
|
Issuance
of Variable Securities
|
18
|
Section
3.22
|
Approval
of Acquisitions.
|
18
|
Section
3.23
|
Most
Favored Nations
|
19
|
i
Section
4.1
|
Conditions
Precedent to the Obligation of the Company to Sell the
Shares
|
19
|
Section
4.2
|
Conditions
Precedent to the Obligation of the Purchasers to Purchase the
Shares
|
19
|
ARTICLE
V Stock Certificate Legend
|
||
Section
5.1
|
Legend
|
21
|
Section
6.1
|
General
Indemnity
|
22
|
Section
6.2
|
Indemnification
Procedure
|
23
|
Section
7.1
|
Piggyback
Registration Rights
|
24
|
Section
7.2
|
Assignment
of Registration Rights
|
24
|
Section
7.3
|
Underwriter
Status
|
25
|
Section
8.1
|
Specific
Enforcement
|
25
|
Section
8.2
|
Entire
Agreement; Amendment
|
25
|
Section
8.3
|
Rescission
and Withdrawal Right
|
25
|
Section
8.4
|
Notices
|
26
|
Section
8.5
|
Waivers
|
26
|
Section
8.6
|
Headings
|
26
|
Section
8.7
|
Successors
and Assigns
|
27
|
Section
8.8
|
No
Third Party Beneficiaries
|
27
|
Section
8.9
|
Governing
Law; Consent to Jurisdiction
|
27
|
Section
8.10
|
Survival
|
27
|
Section
8.11
|
Counterparts
|
27
|
Section
8.12
|
Publicity
|
27
|
Section
8.13
|
Severability
|
27
|
Section
8.14
|
Further
Assurances
|
27
|
ii
EXHIBITS
Exhibit
A
|
List
of Purchasers
|
Exhibit
B
|
Form
of 10% Convertible Bridge Note
|
Exhibit
C
|
Series
A Warrant
|
Exhibit
D
|
Irrevocable
Transfer Agent Instructions
|
Exhibit
E
|
Opinion
of Counsel
|
iii
This NOTE
AND WARRANT PURCHASE AGREEMENT (this “Agreement”) is dated as of
February 25, 2010 by and among Juma Technology Corp., a Delaware corporation
(the “ Company ”), and
each of the Purchasers whose names are set forth on Exhibit
A hereto (individually, a “ Purchaser ” and collectively,
the “ Purchasers
”).
NOW, THEREFORE, in
consideration of the covenants, promises and representations set forth herein,
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties agree as follows:
ARTICLE
I
Section
1.1 Purchase
and Sale of Note. Upon the following terms and conditions, (a) the Company and
one of its subsidiaries, Nectar Services Corp., a Delaware Corporation (“ Nectar ” and together with
the Company, the “
Issuers ”) shall jointly issue and sell to the Purchasers and each of the
Purchasers shall purchase from the Company, 10% convertible bridge notes in the
aggregate principal amount of five hundred thousand ($500,000.00) (the “ Note ”). The Notes
provide for (i) optional conversion into shares of the Company’s common stock,
par value $0.0001 per share (the “ Common Stock ”) and (ii)
mandatory conversion upon the occurrence of a Qualified Financing (as defined in
the Note). The Note shall be substantially in the form attached hereto as Exhibit B
.. The Company and the Purchasers are executing and delivering this
Agreement in accordance with and in reliance upon the exemption from securities
registration afforded by Rule 506 of Regulation D (“ Regulation D ”) as
promulgated by the United States Securities and Exchange Commission (the “ Commission ”) under the
Securities Act of 1933, as amended (the “ Securities Act ”) or Section
4(2) of the Securities Act.
1
Section
1.4 Purchase
Price and Closing. Subject to the terms and conditions hereof, the Issuers agree
to issue and sell to the Purchasers and, in consideration of and in express
reliance upon the representations, warranties, covenants, terms and conditions
of this Agreement, the Purchasers, severally but not jointly, agree to purchase
the Notes and the Warrants for an aggregate purchase price of five hundred
thousand ($500,000.00) (the “ Purchase Price ”). The
closing under this Agreement (the “ Closing ”) shall take place
on or about February 25, 2010 (the “ Closing Date
”). The Closing under this Agreement shall take place at the offices
of Vision Opportunity Master Fund, Ltd., 20 West 00 xx Xxxxxx, 0 xx Xxxxx, Xxx Xxxx,
Xxx Xxxx 00000 at 10:00 a.m., New York time; provided , that
all of the conditions set forth in Article
IV hereof and applicable to the Closing shall have been
fulfilled or waived in accordance herewith. Subject to the terms and
conditions of this Agreement, at the Closing the Company shall deliver or cause
to be delivered to each Purchaser (x) its Notes for the principal amount set
forth opposite the name of such Purchaser on Exhibit
A hereto, (y) its Warrants to purchase such number of shares
of Common Stock as is set forth opposite the name of such Purchaser on Exhibit
A attached hereto and (z) any other documents required to
be delivered pursuant to Article
IV hereof. At the Closing, each Purchaser shall deliver the
applicable Purchase Price by wire transfer to the Company.
ARTICLE
II
2
3
(f) Commission
Documents, Financial Statements. The Company has timely filed all reports,
schedules, forms, statements and other documents required to be filed by it with
the Commission pursuant to the reporting requirements of the Securities Exchange
Act of 1934, as amended the (“
Exchange Act ”), including material filed pursuant to Section 13(a) or
15(d) of the Exchange Act (all of the foregoing including filings incorporated
by reference therein being referred to herein as the “ Commission Documents ”). The
Company has delivered or made available via XXXXX or another Internet web-site
to each of the Purchasers true and complete copies of the Commission Documents.
Except for any information provided to Xxxxxx Xxxxxxx, the Company has not
provided to the Purchasers any material non-public information or other
information which, according to applicable law, rule or regulation, was required
to have been disclosed publicly by the Company but which has not been so
disclosed, other than with respect to the transactions contemplated by this
Agreement. At the times of their respective filings, the Commission Documents
complied in all material respects with the requirements of the Exchange Act and
the rules and regulations of the Commission promulgated thereunder and other
federal, state and local laws, rules and regulations applicable to such
documents, and, as of their respective dates, none of the Commission Documents
contained any untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading. The financial statements of the Company included in the Commission
Documents comply as to form in all material respects with applicable accounting
requirements and the published rules and regulations of the Commission or other
applicable rules and regulations with respect thereto. Such financial statements
have been prepared in accordance with U.S. generally accepted accounting
principles (“ GAAP ”)
applied on a consistent basis during the periods involved (except (i) as may be
otherwise indicated in such financial statements or the notes thereto or (ii) in
the case of unaudited interim statements, to the extent they may not include
footnotes or may be condensed or summary statements), and fairly present in all
material respects the financial position of the Company and its Subsidiaries as
of the dates thereof and the results of operations and cash flows for the
periods then ended (subject, in the case of unaudited statements, to normal
year-end audit adjustments).
4
(h) No
Material Adverse Change. Other than as disclosed in the Company’s Commission
Documents, since December 31, 2008 the Company has not experienced or suffered
any Material Adverse Effect.
(i) No
Undisclosed Liabilities. Except as set forth on Schedule 2.1(i), since
December 31, 2008 neither the Company nor any of its Subsidiaries has any
liabilities, obligations, claims or losses (whether liquidated or unliquidated,
secured or unsecured, absolute, accrued, contingent or otherwise) other than
those incurred in the ordinary course of the Company’s or its Subsidiaries’
respective businesses and which, individually or in the aggregate, do not or
would not have a Material Adverse Effect on the Company or its Subsidiaries, as
the case may be.
(j) Off
Balance Sheet Arrangements. There is no transaction, arrangement, or
other relationship between the Company and an unconsolidated or other off
balance sheet entity that is required to be disclosed by the Company in its
Commission Documents and is not so disclosed or that otherwise would be
reasonably likely to have a Material Adverse Effect.
(k) No
Undisclosed Events or Circumstances. No event or circumstance has occurred or
exists with respect to the Company or its Subsidiaries or their respective
businesses, properties, prospects, operations or financial condition, which,
under applicable law, rule or regulation, requires public disclosure or
announcement by the Company but which has not been so publicly announced or
disclosed.
(l) Indebtedness. Schedule 2.1(l) hereto sets
forth as of the date hereof all outstanding secured and unsecured Indebtedness
of the Company or any Subsidiary, or for which the Company or any Subsidiary has
commitments. For the purposes of this Agreement, “ Indebtedness ” shall mean (a)
any liabilities for borrowed money or amounts owed, whether individually or in
aggregate, in excess of $100,000 (other than trade accounts payable incurred in
the ordinary course of business), (b) all guaranties, endorsements and other
contingent obligations in respect of Indebtedness of others, whether or not the
same are or should be reflected in the Company’s balance sheet (or the notes
thereto), except guaranties by endorsement of negotiable instruments for deposit
or collection or similar transactions in the ordinary course of business; and
(c) the present value of any lease payments in excess of $25,000 due under
leases required to be capitalized in accordance with GAAP. Except as set forth
on Schedule
2.1(l) , neither the Company nor any Subsidiary is in default with
respect to any Indebtedness.
(m) Title
to Assets. Except as set forth on Schedule 2.1(m), each of the
Company and the Subsidiaries has good and marketable title to all of its real
and personal property, free and clear of any mortgages, pledges, charges, liens,
security interests or other encumbrances. Except as set forth on Schedule 2.1(m) ,
all leases of the Company and each of its Subsidiaries are valid and subsisting
and in full force and effect.
5
(n) Insurance.
The Company and the Subsidiaries are insured by insurers of recognized financial
responsibility against such losses and risks and in such amounts as are prudent
and customary in the businesses and location in which the Company and the
Subsidiaries are engaged. Neither the Company nor any Subsidiary has any
knowledge that it will be unable to renew its existing insurance coverage for
the Company and the Subsidiaries as and when such coverage expires or to obtain
similar coverage from similar insurers as may be necessary to continue its
business without a significant increase in cost.
(o) Actions
Pending. There is no action, suit, claim, investigation, arbitration, alternate
dispute resolution proceeding or any other proceeding pending or, to the
knowledge of the Company, threatened against the Company or any Subsidiary which
questions the validity of this Agreement or any of the other Transaction
Documents or the transactions contemplated hereby or thereby or any action taken
or to be taken pursuant hereto or thereto. There is no action, suit, claim,
investigation, arbitration, alternate dispute resolution proceeding or any other
proceeding pending or, to the knowledge of the Company, threatened, against or
involving the Company, any Subsidiary or any of their respective properties or
assets. There are no outstanding orders, judgments, injunctions, awards or
decrees of any court, arbitrator or governmental or regulatory body against the
Company or any Subsidiary or any officers or directors of the Company or
Subsidiary in their capacities as such.
(p) Compliance
with Law. The business of the Company and the Subsidiaries has been and is
presently being conducted in accordance with all applicable federal, state and
local governmental laws, rules, regulations and ordinances, except for such
noncompliance that, individually or in the aggregate, would not cause a Material
Adverse Effect. The Company and each of its Subsidiaries have all franchises,
permits, licenses, consents and other governmental or regulatory authorizations
and approvals necessary for the conduct of its business as now being conducted
by it unless the failure to possess such franchises, permits, licenses, consents
and other governmental or regulatory authorizations and approvals, individually
or in the aggregate, would not have a Material Adverse Effect.
(q) Taxes.
The Company and each of the Subsidiaries has accurately prepared and filed all
federal, state and other tax returns required by law to be filed by it, has paid
or made provisions for the payment of all taxes shown to be due and all
additional assessments, and adequate provisions have been and are reflected in
the financial statements of the Company and the Subsidiaries for all current
taxes and other charges to which the Company or any Subsidiary is subject and
which are not currently due and payable. None of the federal income tax returns
of the Company or any Subsidiary have been audited by the Internal Revenue
Service. The Company has no knowledge of any additional assessments, adjustments
or contingent tax liability (whether federal or state) of any nature whatsoever,
whether pending or threatened against the Company or any Subsidiary for any
period, nor of any basis for any such assessment, adjustment or
contingency.
(r) Certain
Fees. No brokers, finders or financial advisory fees or commissions will be
payable by the Company or any Subsidiary or any Purchaser with respect to the
transactions contemplated by this Agreement.
(s) Disclosure.
Neither this Agreement or the Schedules hereto nor any other documents,
certificates or instruments furnished to the Purchasers by or on behalf of the
Company or any Subsidiary in connection with the transactions contemplated by
this Agreement contain any untrue statement of a material fact or omit to state
a material fact necessary in order to make the statements made herein or
therein, in the light of the circumstances under which they were made herein or
therein, not misleading.
6
(t) Operation
of Business. Except as set forth in Schedule 2.1(t), the Company
and each of the Subsidiaries owns or possesses all patents, trademarks, domain
names (whether or not registered) and any patentable improvements or
copyrightable derivative works thereof, websites and intellectual property
rights relating thereto, service marks, trade names, copyrights, licenses and
authorizations, and all rights with respect to the foregoing, which are
necessary for the conduct of its business as now conducted without any conflict
with the rights of others.
(u) Environmental
Compliance. The Company and each of its Subsidiaries have obtained all material
approvals, authorization, certificates, consents, licenses, orders and permits
or other similar authorizations of all governmental authorities, or from any
other person, that are required under any Environmental Laws. Except as set
forth on Schedule
2.1(u) , the Commission Documents describe all material permits,
licenses and other authorizations issued under any Environmental Laws to the
Company or its Subsidiaries. “
Environmental Laws ” shall mean all applicable laws relating to the
protection of the environment including, without limitation, all requirements
pertaining to reporting, licensing, permitting, controlling, investigating or
remediating emissions, discharges, releases or threatened releases of hazardous
substances, chemical substances, pollutants, contaminants or toxic substances,
materials or wastes, whether solid, liquid or gaseous in nature, into the air,
surface water, groundwater or land, or relating to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling of
hazardous substances, chemical substances, pollutants, contaminants or toxic
substances, material or wastes, whether solid, liquid or gaseous in nature. The
Company has all necessary governmental approvals required under all
Environmental Laws and used in its business or in the business of any of its
Subsidiaries. The Company and each of its Subsidiaries are also in compliance
with all other limitations, restrictions, conditions, standards, requirements,
schedules and timetables required or imposed under all Environmental Laws.
Except for such instances as would not individually or in the aggregate have a
Material Adverse Effect, there are no past or present events, conditions,
circumstances, incidents, actions or omissions relating to or in any way
affecting the Company or its Subsidiaries that violate or may violate any
Environmental Law after the Closing Date or that may give rise to any
environmental liability, or otherwise form the basis of any claim, action,
demand, suit, proceeding, hearing, study or investigation (i) under any
Environmental Law, or (ii) based on or related to the manufacture, processing,
distribution, use, treatment, storage (including without limitation underground
storage tanks), disposal, transport or handling, or the emission, discharge,
release or threatened release of any hazardous substance.
(v) Books
and Record Internal Accounting Controls. The books and records of the Company
and its Subsidiaries accurately reflect in all material respects the information
relating to the business of the Company and the Subsidiaries, the location and
collection of their assets, and the nature of all transactions giving rise to
the obligations or accounts receivable of the Company or any Subsidiary. The
Company and each of its Subsidiaries maintain a system of internal accounting
controls sufficient, in the judgment of the Company, to provide reasonable
assurance that (i) transactions are executed in accordance with management’s
general or specific authorizations, (ii) transactions are recorded as necessary
to permit preparation of financial statements in conformity with GAAP and to
maintain asset accountability, (iii) access to assets is permitted only in
accordance with management’s general or specific authorization and (iv) the
recorded accountability for assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences.
(w) Material
Agreements. Except for the Transaction Documents (with respect to clause (i)
only), as disclosed in the Commission Documents or as set forth on Schedule
2.1(w) hereto, or as would not be reasonably likely to have a
Material Adverse Effect, (i) the Company and each of its Subsidiaries have
performed all obligations required to be performed by them to date under any
written or oral contract, instrument, agreement, commitment, obligation, plan or
arrangement, filed or required to be filed with the Commission (the “ Material Agreements ”), (ii)
neither the Company nor any of its Subsidiaries has received any notice of
default under any Material Agreement and, (iii) to the best of the Company’s
knowledge, neither the Company nor any of its Subsidiaries is in default under
any Material Agreement now in effect.
7
(x) Intellectual
Property. The Company and its Subsidiaries own, or have rights to
use, all inventions, know-how, patents, patent applications, trademarks,
trademark applications, service marks, trade names, copyrights, licenses, trade
secrets and other similar rights that are necessary or material for use in
connection with their respective businesses now operated by them and presently
contemplated to be operated by them which the failure to so have would have or
reasonably be expected to result in a Material Adverse Effect (collectively, the
“ Intellectual Property
Rights ”). None of the Company’s or any Subsidiary’s
Intellectual Property Rights have expired or terminated, or are expected to
expire or terminate, within three years from the date of this
Agreement. None of the Company’s nor any Subsidiary has received
written notice that the Intellectual Property Rights used by the Company or any
Subsidiary violates or infringes upon the rights of any Person (as defined
below). To the knowledge of the Company, the Company and its
Subsidiaries’ patents and other Intellectual Property Rights and the present
activities of the Company and its Subsidiaries do not infringe any patent,
copyright, trademark, trade name or other proprietary rights of any third party,
and there is no claim, action or proceeding being made or brought against, or to
the Company’s knowledge, being threatened against, the Company or any Subsidiary
regarding any of the Intellectual Property Rights. The Company does
not have any knowledge of an infringement by another Person of any of the
Intellectual Property Rights by third parties and has no reason to believe that
any of its Intellectual Property Rights is unenforceable. The Company
has taken commercially reasonable security measures to protect the secrecy,
confidentiality and value of all of their intellectual properties. “ Person ” means an individual
or a corporation, partnership, trust, incorporated or unincorporated
association, joint venture, limited liability company, joint stock company,
government (or an agency or political subdivision thereof) or other entity of
any kind.
(y) Transactions
with Affiliates. Except as set forth in the Commission Documents, there are no
loans, leases, agreements, contracts, royalty agreements, management contracts
or arrangements or other continuing transactions between (a) the Company or any
Subsidiary on the one hand, and (b) on the other hand, any officer, employee,
consultant or director of the Company or any of its Subsidiaries, or any person
owning any capital stock of the Company or any Subsidiary or any member of the
immediate family of such officer, employee, consultant, director or stockholder,
or any corporation or other entity controlled by such officer, employee,
consultant, director or stockholder, or a member of the immediate family of such
officer, employee, consultant, director or stockholder.
(z) Xxxxxxxx-Xxxxx;
Disclosure Controls. The Company is in compliance in all material respects with
all of the provisions of the Xxxxxxxx-Xxxxx Act of 2002 which are applicable to
it as of the Closing Date. The Company has established disclosure controls and
procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) for the
Company and designed such disclosure controls and procedures to ensure that
material information relating to the Company is made known to the certifying
officers by others within those entities, particularly during the period in
which the Company’s most recently filed periodic report under the Exchange Act
is being prepared. The Company’s certifying officers have evaluated the
effectiveness of the Company’s disclosure controls and procedures as of the end
of the most recent periodic reporting period under the Exchange Act (such date,
the “ Evaluation Date
”). The Company presented in its most recently filed periodic report under the
Exchange Act the conclusions of the certifying officers about the effectiveness
of the disclosure controls and procedures based on their evaluations as of the
Evaluation Date. Since the Evaluation Date, there have been no significant
changes in the Company’s internal controls over financial reporting (as such
term is defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) or, to the
Company’s knowledge, in other factors that could reasonably be expected to
materially affect the Company’s internal controls over financial
reporting
8
(aa) Securities
Act of 1933. Based in material part upon the representations herein of the
Purchasers, the Company has complied and will comply with all applicable federal
and state securities laws in connection with the offer, issuance and sale of the
Securities hereunder. Neither the Company nor anyone acting on its behalf,
directly or indirectly, has or will sell, offer to sell or solicit offers to buy
any of the Securities or similar securities to, or solicit offers with respect
thereto from, or enter into any preliminary conversations or negotiations
relating thereto with, any person, or has taken or will take any action so as to
bring the issuance and sale of any of the Securities under the registration
provisions of the Securities Act and applicable state securities laws, and
neither the Company nor any of its affiliates, nor any person acting on its or
their behalf, has engaged in any form of general solicitation or general
advertising (within the meaning of Regulation D under the Securities Act) in
connection with the offer or sale of any of the Securities.
(bb)
Governmental Approvals. Except for the filing of any notice prior or subsequent
to the Closing Date that may be required under applicable state and/or Federal
securities laws (which if required, shall be filed on a timely basis), including
the filing of a Form D and a registration statement or statements pursuant
to Section
7.1 herein, no authorization, consent, approval, license,
exemption of, filing or registration with any court or governmental department,
commission, board, bureau, agency or instrumentality, domestic or foreign, is or
will be necessary for, or in connection with, the execution or delivery of the
Notes and the Warrants, or for the performance by the Company of its obligations
under the Transaction Documents.
(cc) Employees.
Neither the Company nor any Subsidiary has any collective bargaining
arrangements or agreements covering any of its employees. Except as set forth
on Schedule
2.1(cc) , neither the Company nor any Subsidiary has any employment
contract, agreement, regarding proprietary information, non-competition
agreement, non-solicitation agreement, confidentiality agreement, or any other
similar contract or restrictive covenant, relating to the right of any officer,
employee or consultant to be employed or engaged by the Company or such
Subsidiary. No officer, consultant or key employee of the Company or any
Subsidiary whose termination, either individually or in the aggregate, could
have a Material Adverse Effect, has terminated or, to the knowledge of the
Company, has any present intention of terminating his or her employment or
engagement with the Company or any Subsidiary.
(dd) Absence
of Certain Developments. Except as set forth on Schedule 2.1(dd), since
December 31, 2008, neither the Company nor any Subsidiary has:
(i) issued
any stock, bonds or other corporate securities or any rights, options or
warrants with respect thereto;
(ii) borrowed
any amount or incurred or become subject to any liabilities (absolute or
contingent) except current liabilities incurred in the ordinary course of
business which are comparable in nature and amount to the current liabilities
incurred in the ordinary course of business during the comparable portion of its
prior fiscal year;
(iii) discharged
or satisfied any lien or encumbrance or paid any obligation or liability
(absolute or contingent), other than current liabilities paid in the ordinary
course of business;
(iv) declared
or made any payment or distribution of cash or other property to stockholders
with respect to its stock, or purchased or redeemed, or made any agreements so
to purchase or redeem, any shares of its capital stock;
(v)
sold, assigned or transferred any other tangible assets, or
canceled any debts or claims, except in the ordinary course of
business;
9
(vi) sold,
assigned or transferred any patent rights, trademarks, trade names, copyrights,
trade secrets or other intangible assets or intellectual property rights, or
disclosed any proprietary confidential information to any person except to
customers in the ordinary course of business;
(vii) suffered
any substantial losses or waived any rights of material value, whether or not in
the ordinary course of business, or suffered the loss of any material amount of
prospective business;
(viii) made
any changes in employee compensation except in the ordinary course of business
and consistent with past practices;
(ix) made
capital expenditures or commitments therefor that aggregate in excess of
$100,000;
(x)
entered into any other transaction other than in the
ordinary course of business, or entered into any other material transaction,
whether or not in the ordinary course of business;
(xi) made
charitable contributions or pledges in excess of $25,000;
(xii) suffered
any material damage, destruction or casualty loss, whether or not covered by
insurance;
(xiii) experienced
any material problems with labor or management in connection with the terms and
conditions of their employment;
(xiv)
effected any two or more events of the foregoing kind which in the
aggregate would be material to the Company or its Subsidiaries; or
(xv) entered
into an agreement, written or otherwise, to take any of the foregoing
actions.
(ee)
Public Utility Holding Company Act and Investment Company Act Status. The
Company is not a “holding company” or a “public utility company” as such terms
are defined in the Public Utility Holding Company Act of 1935, as amended. The
Company is not, and as a result of and immediately upon the Closing will not be,
an “investment company” or a company “controlled” by an “investment company,”
within the meaning of the Investment Company Act of 1940, as
amended.
(ff)
ERISA. No liability to the Pension Benefit Guaranty Corporation has been
incurred with respect to any Plan (as defined below) by the Company or any of
its Subsidiaries which is or would be materially adverse to the Company and its
Subsidiaries. The execution and delivery of this Agreement and the issuance and
sale of the Securities will not involve any transaction which is subject to the
prohibitions of Section 406 of ERISA or in connection with which a tax could be
imposed pursuant to Section 4975 of the Internal Revenue Code of 1986, as
amended (the “ Code
”); provided that
if any of the Purchasers, or any person or entity that owns a beneficial
interest in any of the Purchasers, is an “employee pension benefit plan” (within
the meaning of Section 3(2) of ERISA) with respect to which the Company is a
“party in interest” (within the meaning of Section 3(14) of ERISA), the
requirements of Sections 407(d)(5) and 408(e) of ERISA, if applicable, are met.
As used in this Section 2.1(ff) ,
the term “ Plan ” shall
mean an “employee pension benefit plan” (as defined in Section 3 of ERISA) which
is or has been established or maintained, or to which contributions are or have
been made, by the Company or any Subsidiary or by any trade or business, whether
or not incorporated, which, together with the Company or any Subsidiary, is
under common control, as described in Section 414(b) or (c) of the
Code.
10
(gg)
Dilutive Effect. The Company understands and acknowledges that its obligation to
(i) issue Conversion Shares upon an Optional Conversion of the Notes in
accordance with this Agreement and the Note, and (ii) its obligations to issue
the Warrant Shares upon the exercise of the Warrants in accordance with this
Agreement and the Warrants, is, in each case, absolute and unconditional
regardless of the dilutive effect that such issuance may have on the ownership
interest of other stockholders of the Company.
(hh) No
Integrated Offering. Neither the Company, nor any of its affiliates, nor any
person acting on its or their behalf, has directly or indirectly made any offers
or sales of any security or solicited any offers to buy any security under
circumstances that would cause the offering of the Securities pursuant to this
Agreement to be integrated with prior offerings by the Company for purposes of
the Securities Act which would prevent the Company from selling the Securities
pursuant to Rule 506 under the Securities Act, or any applicable
exchange-related stockholder approval provisions, nor will the Company or any of
its affiliates or Subsidiaries take any action or steps that would cause the
offering of the Securities to be integrated with other offerings.
(ii) Listing
and Maintenance Requirements. Except as set forth in the Commission
Documents, the Company has not, in the two (2) years preceding the date hereof,
received notice (written or oral) from any Trading Market on which the Common
Stock is or has been listed or quoted to the effect that the Company is not in
compliance with the listing or maintenance requirements of such Trading
Market. Except as set forth in the Commission Documents, the Company
is, and has no reason to believe that it will not in the foreseeable future
continue to be, in compliance with all such listing and maintenance
requirements. “ Trading
Market ” means the OTC Bulletin Board or any other Eligible Market, or
any other national securities exchange, market or trading or quotation facility
on which the Common Stock is then listed or quoted. “ Eligible Market ” means any
of the New York Stock Exchange, the American Stock Exchange, the NASDAQ Global
Select Market, the NASDAQ Global Market, the NASDAQ Capital Market or the
Over-the-Counter Bulletin Board.
(jj) Independent
Nature of Purchasers. The Company acknowledges that the obligations of each
Purchaser under the Transaction Documents are several and not joint with the
obligations of any other Purchaser, and no Purchaser shall be responsible in any
way for the performance of the obligations of any other Purchaser under the
Transaction Documents. The Company acknowledges that the decision of each
Purchaser to purchase securities pursuant to this Agreement has been made by
such Purchaser independently of any other purchase and independently of any
information, materials, statements or opinions as to the business, affairs,
operations, assets, properties, liabilities, results of operations, condition
(financial or otherwise) or prospects of the Company or of its Subsidiaries
which may have made or given by any other Purchaser or by any agent or employee
of any other Purchaser, and no Purchaser or any of its agents or employees shall
have any liability to any Purchaser (or any other person) relating to or arising
from any such information, materials, statements or opinions. The Company
acknowledges that nothing contained herein, or in any Transaction Document, and
no action taken by any Purchaser pursuant hereto or thereto, shall be deemed to
constitute the Purchasers as a partnership, an association, a joint venture or
any other kind of entity, or create a presumption that the Purchasers are in any
way acting in concert or as a group with respect to such obligations or the
transactions contemplated by the Transaction Documents. The Company acknowledges
that each Purchaser shall be entitled to independently protect and enforce its
rights, including without limitation, the rights arising out of this Agreement
or out of the other Transaction Documents, and it shall not be necessary for any
other Purchaser to be joined as an additional party in any proceeding for such
purpose. The Company acknowledges that for reasons of administrative convenience
only, the Transaction Documents have been prepared by counsel for one of the
Purchasers and such counsel does not represent all of the Purchasers but only
such Purchaser and the other Purchasers have retained their own individual
counsel with respect to the transactions contemplated hereby. The Company
acknowledges that it has elected to provide all Purchasers with the same terms
and Transaction Documents for the convenience of the Company and not because it
was required or requested to do so by the Purchasers.
11
(kk) Questionable
Payments. Neither the Company nor any of its Subsidiaries, nor, to the Company’s
knowledge, any directors, officers, employees, agents or other Persons acting on
behalf of the Company or any of its Subsidiaries has, in the course of its
actions for, or on behalf of, the Company: (a) directly or indirectly, used any
corporate funds for unlawful contributions, gifts, entertainment or other
unlawful expenses relating to foreign or domestic political activity; (b) made
any direct or indirect unlawful payments to any foreign or domestic governmental
officials or employees or to any foreign or domestic political parties or
campaigns from corporate funds; (c) violated in any material respect any
provision of the Foreign Corrupt Practices Act of 1977, as amended; or (d) made
any other unlawful bribe, rebate, payoff, influence payment, kickback or other
unlawful payment to any foreign or domestic government official or
employee.
(ll)
Application of Takeover Protections. The Company and its board of directors have
taken all necessary action, if any, in order to render inapplicable any control
share acquisition, business combination, poison pill (including any distribution
under a rights agreement) or other similar anti-takeover provision under the
Company’s charter documents or the laws of its state of incorporation that is or
could reasonably be expected to become applicable to any of the Purchasers as a
result of the Purchasers and the Company fulfilling their obligations or
exercising their rights under the Transaction Documents, including, without
limitation, the Company’s issuance of the Securities and the Purchasers’
ownership of the Securities.
(mm) Transfer
Agent. The name, address, telephone number, fax number, contact person and email
address of the Company’s current transfer agent is set forth on Schedule
2.1(mm) hereto.
(a) Organization
and Standing of the Purchasers. If such Purchaser is an entity, such Purchaser
is a corporation, partnership or limited liability company duly incorporated or
organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation or organization.
12
(d) Acquisition
for Investment. Such Purchaser is acquiring the Securities solely for its own
account for the purpose of investment and not with a view to or for sale in
connection with distribution. Each Purchaser does not have a present intention
to sell the Securities, nor a present arrangement (whether or not legally
binding) or intention to effect any distribution of the Securities to or through
any person or entity; provided, however
, that by making the representations herein and subject to Section
2.2(h) below, such Purchaser does not agree to hold the
Securities for any minimum or other specific term and reserves the right to
dispose of the Securities at any time in accordance with Federal and state
securities laws applicable to such disposition. Such Purchaser acknowledges that
it is able to bear the financial risks associated with an investment in the
Securities and that it has been given full access to such records of the Company
and the Subsidiaries and to the officers of the Company and the Subsidiaries and
received such information as it has deemed necessary or appropriate to conduct
its due diligence investigation and has sufficient knowledge and experience in
investing in companies similar to the Company in terms of the Company’s stage of
development so as to be able to evaluate the risks and merits of its investment
in the Company.
(e) Status
of Purchasers. Such Purchaser is an “accredited investor” as defined in
Regulation D promulgated under the Securities Act. Such Purchaser is not
required to be registered as a broker-dealer under Section 15 of the Exchange
Act and such Purchaser is not a broker-dealer.
(f) Opportunities
for Additional Information. Such Purchaser acknowledges that such Purchaser has
had the opportunity to ask questions of and receive answers from, or obtain
additional information from, the executive officers of the Company concerning
the financial and other affairs of the Company, and to the extent deemed
necessary in light of such Purchaser’s personal knowledge of the Company’s
affairs, such Purchaser has asked such questions and received answers to the
full satisfaction of such Purchaser, and such Purchaser desires to invest in the
Company.
(g) No
General Solicitation. Such Purchaser acknowledges that the Securities were not
offered to such Purchaser by means of any form of general or public solicitation
or general advertising, or publicly disseminated advertisements or sales
literature, including (i) any advertisement, article, notice or other
communication published in any newspaper, magazine, or similar media, or
broadcast over television or radio, or (ii) any seminar or meeting to which such
Purchaser was invited by any of the foregoing means of
communications.
13
(h) Rule
144. Such Purchaser understands that the Securities must be held indefinitely
unless such Securities are registered under the Securities Act or an exemption
from registration is available. Such Purchaser acknowledges that such Purchaser
is familiar with Rule 144 of the rules and regulations of the Commission, as
amended, promulgated pursuant to the Securities Act (“ Rule 144 ”), and that such
Purchaser has been advised that Rule 144 permits resales only under certain
circumstances. Such Purchaser understands that to the extent that Rule 144 is
not available, such Purchaser will be unable to sell any Securities without
either registration under the Securities Act or the existence of another
exemption from such registration requirement.
(k) Short
Sales. Purchaser has not, during the last thirty (30) days prior to the date
hereof, directly or indirectly, nor has any party acting on behalf of or
pursuant to any understanding with such Purchaser, effected or agreed to effect
any short sale, whether or not against the box, established any “put equivalent
position” (as defined in Rule 16(a)-1(h) under the Exchange Act) with respect to
any security of the Company, granted any other right (including, without
limitation, any put or call option) with respect to any security of the Company
or with respect to any security that includes, relates to, or derives any
significant part of its value from any security of the Company or otherwise
sought to hedge its positioning of the Company’s securities. Such
Purchaser shall not, and shall cause any affiliates not to, engage, directly or
indirectly, in any short sale transactions in the securities of the Company
during the period from the date hereof until such time as one (1) year from the
date of effectiveness of the Registration Statement (as defined in Section 7.1
). Such Purchaser understands and acknowledges, severally and not jointly
with any other Purchaser, that the Commission currently takes the position that
covering a short position established prior to effectiveness of a resale
registration statement with shares included in such registration statement would
be a violation of Section 5 of the Securities Act, as set forth in Item 65,
Section 5 under Section A, of the Manual of Publicly Available Telephone
Interpretations, dated July 1997, compiled by the Office of Chief Counsel,
Division of Corporation Finance
ARTICLE
III
The
Company covenants with each of the Purchasers as follows, which covenants are
for the benefit of each Purchaser and its permitted assignees (as defined
herein):
14
15
(a) quarterly
reports filed with the Commission on Form 10-Q as soon as practical after the
document is filed with the Commission, and in any event within five (5) days
after the document is filed with the Commission;
(b) annual
reports filed with the Commission on Form 10-K as soon as practical after the
document is filed with the Commission, and in any event within five (5) days
after the document is filed with the Commission; and
(c) copies
of all notices and information, including without limitation notices and proxy
statements in connection with any meetings, that are provided to holders of
shares of Common Stock, contemporaneously with the delivery of such notices or
information to such holders of Common Stock.
16
17
18
ARTICLE
IV
(a) Accuracy
of Each Purchaser’s Representations and Warranties. The representations and
warranties of each Purchaser shall be true and correct in all material respects
as of the date when made and as of the Closing Date as though made at that time,
except for representations and warranties that are expressly made as of a
particular date, which shall be true and correct in all material respects as of
such date.
(b) Performance
by the Purchasers. Each Purchaser shall have performed, satisfied and complied
in all respects with all covenants, agreements and conditions required by this
Agreement to be performed, satisfied or complied with by such Purchaser at or
prior to the Closing.
(c) No
Injunction. No statute, rule, regulation, executive order, decree, ruling or
injunction shall have been enacted, entered, promulgated or endorsed by any
court or governmental authority of competent jurisdiction which prohibits the
consummation of any of the transactions contemplated by this
Agreement.
(f) Delivery
of Transaction Documents. The Transaction Documents have been duly executed and
delivered by the Purchasers to the Company (as of the Closing).
19
(a) Accuracy
of the Company’s and Nectar’s Representations and Warranties. Each of the
representations and warranties of the Company and Nectar in this Agreement shall
be true and correct in all respects as of the date when made and as of the
Closing Date, except for representations and warranties that are expressly made
as of a particular date, which shall be true and correct in all respects as of
such date.
(b) Performance
by the Company and Nectar. The Company and Nectar shall have performed,
satisfied and complied in all respects with all covenants, agreements and
conditions required by this Agreement to be performed, satisfied or complied
with by the Company and Nectar at or prior to the Closing.
(c) No
Suspension, Etc. Trading in the Company’s Common Stock shall not have been
suspended by the Commission or the OTC Bulletin Board (except for any suspension
of trading of limited duration agreed to by the Company, which suspension shall
be terminated prior to the Closing), and, at any time prior to the Closing Date,
trading in securities generally as reported by Bloomberg Financial Markets
(“ Bloomberg ”) shall
not have been suspended or limited, or minimum prices shall not have been
established on securities whose trades are reported by Bloomberg, or on the New
York Stock Exchange, nor shall a banking moratorium have been declared either by
the United States or New York State authorities, nor shall there have occurred
any material outbreak or escalation of hostilities or other national or
international calamity or crisis of such magnitude in its effect on, or any
material adverse change in any financial market which, in each case, in the
judgment of such Purchaser, makes it impracticable or inadvisable to purchase
the Securities to be issued as of the Closing.
(d) No
Injunction. No statute, rule, regulation, executive order, decree, ruling or
injunction shall have been enacted, entered, promulgated or endorsed by any
court or governmental authority of competent jurisdiction which prohibits the
consummation of any of the transactions contemplated by this
Agreement.
(e) No
Proceedings or Litigation. No action, suit or proceeding before any arbitrator
or any governmental authority shall have been commenced, and no investigation by
any governmental authority shall have been threatened, against the Company or
any Subsidiary, or any of the officers, directors or affiliates of the Company
or any Subsidiary seeking to restrain, prevent or change the transactions
contemplated by this Agreement, or seeking damages in connection with such
transactions.
20
(p) Material
Adverse Effect. No Material Adverse Effect shall have occurred at or before the
Closing Date.
ARTICLE
V
THE
SECURITIES REPRESENTED BY THIS CERTIFICATE (THE “SECURITIES”) 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 SUCH SECURITIES MAY BE SOLD,
TRANSFERRED, OR OTHERWISE DISPOSED OF, UNDER AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT AND SUCH STATE SECURITIES
LAWS.
21
The
Company agrees to reissue certificates representing any of the Conversion Shares
and the Warrant Shares, without the legend set forth above if at such time,
prior to making any transfer of any such securities, such holder thereof shall
give written notice to the Company describing the manner and terms of such
transfer and removal as the Company may reasonably request. Such proposed
transfer and removal will not be effected until: (a) either (i) the Company has
received an opinion of counsel reasonably satisfactory to the Company, to the
effect that the registration of the Conversion Shares or the Warrant Shares
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 Company with the Commission and has
become effective under the Securities Act, (iii) the Company has received other
evidence reasonably satisfactory to the Company that such registration and
qualification under the Securities Act and state securities laws are not
required, or (iv) the holder provides the Company with reasonable assurances
that such security can be sold pursuant to Rule 144 under the Securities Act;
and (b) either (i) the Company has received an opinion of counsel reasonably
satisfactory to the Company, 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 Company will respond to any such notice from a
holder within five (5) business days. In the case of any proposed transfer under
this Section
5.1 , the Company will 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, (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, or (z) to comply
with state securities or “blue sky” laws of any state for which registration by
coordination is unavailable to the Company. The restrictions on transfer
contained in this Section
5.1 shall be in addition to, and not by way of limitation of,
any other restrictions on transfer contained in any other section of this
Agreement. Whenever a certificate representing the Conversion Shares or the
Warrant Shares is required to be issued to a Purchaser without a legend, in lieu
of delivering physical certificates representing the Conversion Shares or the
Warrant Shares (provided that a registration statement under the Securities Act
providing for the resale of the Warrant Shares and the Conversion Shares is then
in effect), the Company shall cause its transfer agent to electronically
transmit the Conversion Shares or the Warrant Shares to a Purchaser by crediting
the account of such Purchaser or such Purchaser’s Prime Broker with the
Depository Trust Company (“
DTC ”) through its Deposit Withdrawal Agent Commission (“ DWAC ”) system (to the extent
not inconsistent with any provisions of this Agreement).
ARTICLE
VI
22
23
ARTICLE
VII
24
ARTICLE VIII
25
If
to the Company:
|
000
Xxxxxx Xxxxxx
Xxxxxxxxxxx,
Xxx Xxxx 00000
Attention:
Chief Executive Officer
Tel.
No.: (000) 000-0000
Fax
No.: (000) 000-0000
|
with
copies to:
|
Xxxxxxx
Xxxxxx LLP
000
Xxxxxxxxx Xxxxxx, 0xx Xxxxx
Xxx
Xxxx, Xxx Xxxx 00000
Attention:
Xxx Xxxxxxxxx, Esq.
Tel.
No.: (000) 000-0000
Fax
No.: (000) 000-0000
|
If
to any Purchaser:
|
At
the address of such Purchaser set forth on Exhibit A to this
Agreement, with copies to Purchaser’s counsel (which copies shall not
constitute notice to such purchaser) as set forth on Exhibit
A or as specified in writing by such
Purchaser.
|
with
copies to:
|
Sadis
& Xxxxxxxx LLP
000
Xxxxx Xxxxxx, 00xx
Xxxxx
Xxx
Xxxx, Xxx Xxxx 00000
Attention:
Xxxx Xxxxxxxx, Esq.
Tel.
No.: (000) 000-0000
Fax
No.: (000)
000-0000
|
Any party
hereto may from time to time change its address for notices by giving at least
ten (10) days written notice of such changed address to the other parties
hereto.
26
Section
8.9 Governing Law;
Consent to 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. The parties hereby agree that the
prevailing party in any suit, action or proceeding arising out of or relating to
this Agreement, shall be entitled to reimbursement for reasonable legal fees
from the non-prevailing party. The parties hereby waive all rights to a trial by
jury. Nothing in this Section 8.9
shall affect or limit any right to serve process in any other manner permitted
by law.
[remainder of page intentionally left
blank]
27
By:
|
|
Name:
|
|
Title:
|
|
NECTAR
SERVICES CORP.
|
|
By:
|
|
Name:
|
|
Title:
|
|
VISION OPPORTUNITY MASTER FUND,
LTD.
|
|
By:
|
|
Name:
|
|
Title:
|
28
EXHIBIT
A
to
the
NOTE
AND WARRANT STOCK PURCHASE AGREEMENT FOR
Names
and Addresses of the Purchasers
|
Purchase
Price
|
Notes
& Warrants Purchased
|
||
Vision
Opportunity Master Fund, Ltd.
c/o
Vision Capital Advisors, LLC
00
Xxxx 00xx
Xxxxxx
Xxx
Xxxx, XX 00000
Attn:
Xxxxxx Xxxxxxx
|
$500,000.00
|
$500,000.00
principal amount of Note
Series
A Warrants: 1,666,667
|
Exhibit A
to Note and Warrant Purchase Agreement
EXHIBIT
B
to
the
NOTE
AND WARRANT STOCK PURCHASE AGREEMENT FOR
FORM
OF NOTE
Exhibit B
to Note and Warrant Purchase Agreement
EXHIBIT
C
to
the
NOTE
AND WARRANT STOCK PURCHASE AGREEMENT FOR
FORM
OF SERIES A WARRANT
Exhibit C
to Note and Warrant Purchase Agreement
EXHIBIT
D
to
the
FORM
OF IRREVOCABLE TRANSFER AGENT INSTRUCTIONS
[NAME AND ADDRESS OF TRANSFER
AGENT]
Attn:
____________________________
Ladies
and Gentlemen:
Reference
is made to that certain Note and Warrant Purchase Agreement (the “Purchase Agreement”), dated as
of February __, 2010, by and among Juma Technology Corp., a Delaware corporation
(the “ Company ”), and
the purchasers named therein (collectively, the “ Purchasers ”) pursuant to
which the Company is issuing to the Purchasers 10% Convertible Bridge Notes (the
“ Notes ”) and warrants
(the “ Warrants ”) to
purchase shares of the Company’s common stock, par value $0.0001 per share (the
“ Common Stock ”). This
letter shall serve as our irrevocable authorization and direction to you
provided that you are the transfer agent of the Company at such time) to issue
shares of Common Stock upon a conversion of the Notes (the “ Conversion Shares ”) and
exercise of the Warrants (the “
Warrant Shares ”) to or upon the order of a Purchaser from time to time
upon (i) surrender to you of a properly completed and duly executed Conversion
Notice or Exercise Notice, as the case may be, in the form attached hereto as
Exhibit I and Exhibit II, respectively, (ii) in the case of the conversion of
Notes, a copy of the Note or, in the case of Warrants being exercised, a copy of
the Warrants (with the original Warrants delivered to the Company) being
exercised (or, in each case, an indemnification undertaking with respect to such
share certificates or the warrants in the case of their loss, theft or
destruction), and (iii) delivery of a treasury order or other appropriate order
duly executed by a duly authorized officer of the Company. So long as you have
previously received (x) written confirmation from counsel to the Company that a
registration statement covering resales of the Conversion Shares or Warrant
Shares, as applicable, has been declared effective by the Securities and
Exchange Commission (the “
SEC ”) under the Securities Act of 1933, as amended (the “ 1933 Act ”), and no
subsequent notice by the Company or its counsel of the suspension or termination
of its effectiveness and (y) a copy of such registration statement, and if the
Purchaser represents in writing that the Conversion Shares or the Warrant
Shares, as the case may be, were sold pursuant to the Registration Statement,
then certificates representing the Conversion Shares and the Warrant Shares, as
the case may be, shall not bear any legend restricting transfer of the
Conversion Shares and the Warrant Shares, as the case may be, thereby and should
not be subject to any stop-transfer restriction. Provided, however, that if you
have not previously received those items and representations listed above, then
the certificates for the Conversion Shares and the Warrant Shares shall bear the
following legend:
“THE
SECURITIES REPRESENTED BY THIS CERTIFICATE (THE “SECURITIES”) 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 SUCH SECURITIES MAY BE SOLD,
TRANSFERRED, OR OTHERWISE DISPOSED OF, UNDER AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT AND SUCH STATE SECURITIES
LAWS.”
Exhibit D
to Note and Warrant Purchase Agreement
and,
provided further, that the Company may from time to time notify you to place
stop-transfer restrictions on the certificates for the Conversion Shares and the
Warrant Shares in the event a registration statement covering the Conversion
Shares and the Warrant Shares is subject to amendment for events then
current.
A form of
written confirmation from counsel to the Company that a registration statement
covering resales of the Conversion Shares and the Warrant Shares has been
declared effective by the SEC under the 1933 Act is attached hereto as Exhibit
III.
Please be
advised that the Purchasers are relying upon this letter as an inducement to
enter into the Purchase Agreement and, accordingly, each Purchaser is a third
party beneficiary to these instructions.
Please
execute this letter in the space indicated to acknowledge your agreement to act
in accordance with these instructions. Should you have any questions concerning
this matter, please contact me at ___________.
Very
truly yours,
|
|
JUMA
TECHNOLOGY CORP.
|
|
By:
|
|
Name:
|
|
Title:
|
ACKNOWLEDGED
AND AGREED:
|
|
[TRANSFER
AGENT]
|
|
By:
|
|
Name:
|
|
Title:
|
|
Date:
|
Exhibit D
to Note and Warrant Purchase Agreement
EXHIBIT
I
CONVERSION
NOTICE
JUMA
TECHNOLOGY CORP.
(To be
Executed by the Registered Holder in order to Convert the Note)
In
accordance with and pursuant to the Note, the undersigned hereby elects to
convert the Note into such number of shares of Common stock, of Juma Technology
Corp., a Delaware corporation (the “ Company ”), indicated
below:
Date of
Conversion:
________________________________________________________________________
Applicable
Conversion Price:
_________________________________________________________________
Number of
shares of Common Stock beneficially owned or deemed beneficially owned by the
Holder on the date
of
Conversion_____________________________________________________________________________
Dated:
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Signature:
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Address:
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Exhibit D
to Note and Warrant Purchase Agreement
EXHIBIT
II
FORM
OF EXERCISE NOTICE
JUMA
TECHNOLOGY CORP.
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:
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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: _____________________
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:
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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.
Dated:
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Signature:
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Address:
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Exhibit D
to Note and Warrant Purchase Agreement
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 ______________________.
Exhibit D
to Note and Warrant Purchase Agreement
EXHIBIT
III
FORM
OF NOTICE OF EFFECTIVENESS
OF
REGISTRATION STATEMENT
[NAME AND ADDRESS OF TRANSFER
AGENT]
Attn:
____________________________
Re: Juma Technology
Corp.
Ladies
and Gentlemen:
We are
special counsel to Juma Technology Corp., a Delaware corporation (the “Company”), and have
represented the Company in connection with that certain Note and Warrant
Purchase Agreement (the “
Purchase Agreement ”), dated as of February __, 2010, by and among the
Company, Nectar Services Corp. and the purchasers named therein (collectively,
the “ Purchasers ”)
pursuant to which the Company issued to the Purchasers 10% convertible bridge
notes (the “ Notes ”)
and warrants (the “
Warrants ”) to purchase shares of the Company’s common stock, par value
$0.0001 per share (the “ Common
Stock ”). Pursuant to the Purchase Agreement, the Company agreed, among
other things, in certain circumstances, to register the shares of Common Stock
issuable upon conversion of the Notes, and the shares of Common Stock issuable
upon exercise of the Warrants (the “ Registrable Securities ”),
under the Securities Act of 1933, as amended (the “ 1933 Act ”). In connection
with the Company’s obligations under the Purchase Agreement, on
________________, 200_, the Company filed a Registration Statement on Form S-1
(File No. 333-________) (the “
Registration Statement ”) with the Securities and Exchange Commission
(the “ SEC ”) relating
to the resale of the Registrable Securities which names each of the present
Purchasers as a selling stockholder thereunder.
In
connection with the foregoing, we advise you that a member of the SEC’s staff
has advised us by telephone that the SEC has entered an order declaring the
Registration Statement effective under the 1933 Act at [ ENTER TIME OF EFFECTIVENESS ]
on [ ENTER DATE OF
EFFECTIVENESS ] and we have no knowledge, after telephonic inquiry of a
member of the SEC’s staff, that any stop order suspending its effectiveness has
been issued or that any proceedings for that purpose are pending before, or
threatened by, the SEC and accordingly, the Registrable Securities are available
for resale under the 1933 Act pursuant to the Registration
Statement.
Very
truly yours,
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[COMPANY
COUNSEL]
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By:
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cc: [LIST
NAMES OF PURCHASERS]
Exhibit D
to Note and Warrant Purchase Agreement
EXHIBIT
E
to
the
NOTE
AND WARRANT PURCHASE AGREEMENT FOR
JUMA
TECHNOLOGY CORP.
1. The
Company is a corporation duly incorporated, validly existing and in good
standing under the laws of the State of Delaware and has the requisite corporate
power to own, lease and operate its properties and assets, and to carry on its
business as presently conducted. The Company is duly qualified as a foreign
corporation to do business and is in good standing in every jurisdiction in
which the nature of the business conducted or property owned by it makes such
qualification necessary, which the failure to so qualify could have a Material
Adverse Effect on the Company.
2. Each
of the Subsidiaries of the Company (the “Subsidiaries”) set forth
on Schedule 2.1(g) of
the Note Purchase Agreement is a corporation or limited liability company, as
applicable, duly incorporated or organized and in good standing under the laws
of its state of incorporation or organization.
3. The
Issuers have the requisite corporate power and authority to enter into and
perform its obligations under the Transaction Documents and, as applicable, to
issue the Notes, the Common Stock issuable upon conversion of the Notes, the
Warrants, and the Common Stock issuable upon exercise of the Warrants. The
execution, delivery and performance of each of the Transaction Documents by the
Issuers, as applicable, and the consummation by it of the transactions
contemplated thereby have been duly and validly authorized by all necessary
corporate action and no further consent or authorization of any Issuer or its
board of directors or stockholders is required. Each of the Transaction
Documents have been duly executed and delivered, and the Notes and the Warrants
have been duly executed, issued and delivered by the Issuers party thereto and
each of the Transaction Documents constitutes a legal, valid and binding
obligation of the Issuers enforceable against it in accordance with its
respective terms. The Common Stock issuable upon conversion of the Notes and
exercise of the Warrants are not subject to any preemptive rights under the
Certificate of Incorporation or the Bylaws. Nevertheless, we do not
opine as to whether Nectar Services has the authority to issue the common stock
under the Note or cause the conversion of the Note into common
stock.
4. The
Notes and the Warrants have been duly authorized and, when delivered against
payment in full as provided in the Note Purchase Agreement, will be validly
issued, fully paid and nonassessable. The shares of Common Stock issuable upon
conversion of the Notes and the exercise of the Warrants, have been duly
authorized and reserved for issuance, and, based on the facts and circumstance
as they exist on the date of this opinion and the qualifications contained
herein, when delivered upon conversion, exercise or payment in full as provided
in the Notes and the Warrants, will be validly issued, fully paid and
nonassessable.
Exhibit E
to Note and Warrant Purchase Agreement
5. The
execution, delivery and performance of and compliance with the terms of the
Transaction Documents and the issuance of Notes, the Common Stock issuable upon
conversion of the Notes, the Warrants, and the Common Stock issuable upon the
exercise of the Warrants, do not (i) violate any provision of the Certificate of
Incorporation or By-Laws of such Issuer, as applicable, (ii) conflict with, or
constitute a default (or an event which with notice or lapse of time or both
would become a default) under, or give to others any rights of termination,
amendment, acceleration or cancellation of, any material agreement, mortgage,
deed of trust, indenture, note, bond, license, lease agreement, instrument or
obligation to which such Issuer is a party, and which agreement, mortgage, deed
of trust, indenture, note, bond, license, lease agreement, instrument or
obligation has been disclosed in the Commission Documents, (iii) to our
knowledge, create or impose a lien, charge or encumbrance on any property of
such Issuer under any agreement or any commitment to which such Issuer is a
party or by which such Issuer is bound or by which any of its respective
properties or assets are bound and, in each case, which agreement or commitment
has been disclosed in the Commission Documents, or (iv) result in a violation of
any federal, state, or local statute, rule, regulation (including federal and
state securities laws and regulations) or any order, judgment, injunction or
decree known to us applicable to such Issuer or by which any property or asset
of such Issuer is bound or affected, except, in all of the foregoing cases
(other than (i)) for such conflicts, default, terminations, amendments,
acceleration, cancellations and violations as would not, individually or in the
aggregate, have a Material Adverse Effect.
6. Based
on the representations of Purchaser contained in the Note Purchase Agreement and
subject to compliance with the filing requirements under the applicable “blue
sky” laws and Regulation D promulgated under the Securities Act of 1933, as
amended, no consent, approval or authorization of or designation, declaration or
filing with any governmental authority on the part of the Company is required
under federal, state or local law, rule or regulation in connection with the
valid execution and delivery of the Transaction Documents, or the offer, sale or
issuance of the Notes, the Warrants or the Common Stock issuable upon conversion
of the Notes and exercise of the Warrants or the consummation of the
transactions contemplated by the Note Purchase Agreement other than as may be
required under the Registration Statement.
7. To our
knowledge, there is no action, suit, claim, or proceeding pending or threatened
against any Issuer which questions the validity of the Transaction Documents or
the transactions contemplated thereby or any action taken or to be taken
pursuant thereto. To our knowledge, there is no action, suit, claim, or
proceeding pending or threatened against such Issuer or any of its properties or
assets and which, if adversely determined, is reasonably likely to result in a
Material Adverse Effect. To our knowledge, there are no outstanding orders,
judgments, injunctions, awards or decrees of any court, arbitrator or
governmental or regulatory body against such Issuer or any officers or directors
of any Issuer in their capacities as such.
8. Based
upon the representations of the Purchaser, the offer, issuance and sale of the
Notes and the Warrants and, based on the facts and circumstances as they exist
on the date of this opinion, the offer, issuance and sale of the shares of
Common Stock issuable upon conversion of the Notes and the Common Stock issuable
upon exercise of the Warrants pursuant to the Note Purchase Agreement, the
Notes, and the Warrants, as applicable, are exempt from the registration
requirements of the Securities Act.
9. No
Issuer is, and as a result of and immediately upon the Closing no Issuer will
be, an “investment company” or a company “controlled” by an “investment
company,” within the meaning of the Investment Company Act of 1940, as
amended.
Very
truly yours,
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[COMPANY
COUNSEL]
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By:
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Exhibit E
to Note and Warrant Purchase Agreement