ACKNOWLEDGEMENT AND WAIVER OF ANTI-DILUTION ADJUSTMENTS
Exhibit 4.4
This
Acknowledgement and Waiver of Anti-Dilution Adjustments (this “Acknowledgement”),
dated as of December 23, 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 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
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 VCAF
have entered into a Note and Warrant Purchase Agreement dated as of September
24, 2009, wherein VCAF purchased from the Company, 10% convertible bridge notes
(the “September
Notes”)
with a conversion price of $0.15; and
WHEREAS, the Company and VOMF
have entered into a Note and Warrant Purchase Agreement dated as of December 23,
2009, wherein VOMF purchased from the Company, 10% convertible bridge notes (the
“December
Notes”
and together with the September Notes, the “Notes”) with a conversion
price of $0.15; and
WHEREAS, the Series B
Preferred Stock, the Series B Warrants and the Series A 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 B Warrants having the effect of
adjusting the Warrant Price to $0.15; provided however, that VOMF and VCAF, as
applicable, hereby waive such Price Protections and agree that the Warrant Price
shall remain at $0.25; and provided further, 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
2. 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, provided however, that VOMF
and VCAF, as applicable, hereby waive such Price Protections; and
3. As
a result of the issuance of the Notes, the Company acknowledges that the Notes
trigger the Price Protections of the Series A Warrant having the effect of
adjusting the Warrant Price to $0.15.
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IN
WITNESS WHEREOF, this Acknowledgement was duly executed as of the date set forth
above.
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By:
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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:
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Name:
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Title:
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VISION
CAPITAL ADVANTAGE FUND, L.P.
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By:
VCAF GP, LLC, its General Partner
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By:
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Name:
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Title:
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