ACKNOWLEDGEMENT AND WAIVER OF ANTI-DILUTION ADJUSTMENTS
Exhibit 4.4
This
Acknowledgement and Waiver of Anti-Dilution Adjustments (this “Acknowledgement”),
dated as of May 21, 2009, is made by and among Juma Technology Corp., a Delaware
corporation (the “Company”), Vision
Opportunity Master Fund, Ltd. (“VOMF”),
and Vision Capital Advantage Fund, L.P. (“VCAF”
and together with VOMF, “Vision”).
WHEREAS, the Company is the
issuer of Series A Convertible Preferred Stock (the “Series A
Preferred Stock”) pursuant to the Certificate of Designation of the
Relative Rights and Preferences of the Series A Convertible Preferred Stock of
Juma Technology Corp. (the “Series A
Certificate of Designation”) filed with the State of Delaware on
September 5, 2007, as amended on June 20, 2008;
WHEREAS, the Company is the
issuer of Series B Convertible Preferred Stock (the “Series
B Preferred Stock”) pursuant to the Certificate of Designation
of the Relative Rights and Preferences of the Series B Convertible Preferred
Stock of Juma Technology Corp. (the “Series B
Certificate of Designation”) filed with the State of Delaware on June 20,
2008;
WHEREAS, the Company has
previously issued the following notes (collectively, the “Prior
Notes”):
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(a)
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Senior
secured 10% convertible promissory note dated November 29, 2007 in the
outstanding principal amount of $463,122 issued to
VOMF;
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(b)
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Senior
secured 10% convertible promissory note dated November 29, 2007 in the
outstanding principal amount of $1,929,674 issued to
VOMF;
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(c)
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Senior
secured 10% convertible promissory note dated November 29, 2007 in the
outstanding principal amount of $136,878 issued to
VCAF;
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(d)
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Senior
secured 10% convertible promissory note dated November 29, 2007 in the
outstanding principal amount of $570,326 issued to
VCAF;
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(e)
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Senior
secured 10% convertible promissory note dated March 7, 2008 in the
outstanding principal amount of $1,119,211 issued to
VOMF;
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(f)
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Senior
secured 10% convertible promissory note dated March 7, 2008 in the
outstanding principal amount of $330,789 issued to
VCAF;
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(g)
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Senior
secured 10% convertible promissory note dated June 20, 2008 in the
outstanding principal amount of $1,119,211 issued to VOMF;
and
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(h)
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Senior
secured 10% convertible promissory note dated June 20, 2008 in the
outstanding principal amount of $330,789 issued to VCAF;
and
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(i)
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10%
convertible bridge note dated February 9, 2009 in the outstanding
principal amount of $1,500,000 issued to
VOMF;
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WHEREAS, the Company has
issued the following Series B Warrants (collectively, the “Series B
Warrants”):
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(a)
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Series
B Warrant to purchase 4,824,188 shares of Common Stock of the Company
dated August 16, 2007 issued to VOMF;
and
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(b)
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Series
B Warrant to purchase 1,425,812 shares of Common Stock of the Company
dated August 16, 2007 issued to
VCAF;
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WHEREAS, the Company has
issued to VOMF a Series A Warrant to purchase 3,000,000 shares of Common Stock
of the Company (the “Series A
Warrant”) dated February 9, 2009;
WHEREAS, the Company and
Vision have entered into a Note and Warrant Purchase Agreement dated as of May
21, 2009, wherein Vision purchased from the Company, 10% convertible bridge
notes (the “Notes”)
with a conversion price of $0.15; and
WHEREAS, the Series A
Preferred Stock, the Prior Notes and the Series B Warrant each have certain
price protections (the “Price
Protections”) whereby the Conversion and/or Warrant Price, as applicable
(as such terms are defined in the respective securities), is adjusted upon the
issuance by the Company of Common Stock Equivalents (as such term is defined in
the respective securities).
NOW THEREFORE, for good and
valuable consideration, the receipt and sufficiency of which are hereby agreed
and acknowledged, the parties hereto hereby agree as follows:
1. As
a result of the issuance of the Notes, the Company acknowledges that the Notes
trigger the Price Protections of the Series A Preferred Stock having the effect
of adjusting the Conversion Price to $0.15;
2. As
a result of the issuance of the Notes, the Company acknowledges that the Notes
trigger the Price Protections of the Prior Notes having the effect of adjusting
the Conversion Price of each Prior Note to $0.15;
3. As
a result of the issuance of the Notes, the Company acknowledges that the Notes
trigger the Price Protections of the Series B Warrants having the effect of
adjusting the Warrant Price to $0.25; provided however, that Vision
acknowledges and agrees that no additional shares of common stock shall be
issued as a result of the change in Warrant Price; and
4. As
a result of the issuance of the Notes, the Company acknowledges that the Notes
trigger the Price Protections of the Series B Preferred Stock and the Series A
Warrant, provided
however, that VOMF and VCAF, as applicable, hereby waive such Price
Protections.
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IN
WITNESS WHEREOF, this Acknowledgement was duly executed as of the date set forth
above.
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/s/ Xxxxxxx X. Xxxxxxxx
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Name:
Xxxxxxx X. Xxxxxxxx
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Title:
Chief Executive Officer
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VISION
OPPORTUNITY MASTER FUND, LTD.
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| By: |
/s/ Xxxx Xxxxxxxx
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Name:
Xxxx Xxxxxxxx
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Title: Director
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VISION
CAPITAL ADVANTAGE FUND, L.P.
By:
VCAF GP, LLC, its General Partner
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| By: |
/s/ Xxxx Xxxxxxxx
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Name: Xxxx
Xxxxxxxx
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Title: Authorized
Signatory
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