WAIVER AND ACKNOWLEDGEMENT
Exhibit
4.3
THIS
WAIVER AND ACKNOWLEDGEMENT is entered into as of November 13, 2008 and is made
by and between Juma Technology Corp., a Delaware corporation (the “Issuer”),
Vision Opportunity Master Fund, Ltd. (“VOMF”)
and
Vision Capital Advantage Fund, L.P. (“VCAF,”
and
together with VOMF, the “Holders”).
WHEREAS,
the Issuer is the issuer and the Holders are the holders of those certain Senior
Secured 10% Convertible Promissory Notes (the “Notes”),
those
certain Series B and Series C Warrants of the Issuer (the “Warrants”),
and
the number of shares of Series A Convertible Preferred Stock (the “Series
A”)
and
Series B Convertible Preferred Stock (the “Series
B”
and
together with the Series A, the “Preferred
Stock”),
all
of which are listed on Exhibit
A
hereto
(and all of which are referred to collectively herein as the “Securities”);
WHEREAS,
the Issuer and the Holders have entered into that certain Amendment No. 2 to
Series B Warrants and Amendment No. 4 to Series C Warrants (the “Warrant
Amendment”)
dated
as of the date hereof;
WHEREAS,
the Holders have consented to and the Issuer has adopted those certain
amendments to the Certificate of Designation of the Relative Rights and
Preferences of the Series A, which was filed with the Secretary of State of
the
State of Delaware on November [ ], 2008 (the “Amend\ed
Series A Certificate”);
WHEREAS,
the Holders have consented to and the Issuer has adopted those certain
amendments to the Certificate of Designation of the Relative Rights and
Preferences of the Series B, which was filed with the Secretary of State of
the
State of Delaware on November [ ], 2008 (the “Amended
Series B Certificate”
and
together with the Amended Series A Certificate, the “Amended
Certificates”);
WHEREAS,
the Securities each have certain price protection (collectively, the
“Price
Protections”)
whereby the exercise or conversion price, as applicable, of the Securities
are
adjusted upon the issuance by the Issuer of Common Stock Equivalents (as that
term is defined in Notes, the Warrants and the Amended
Certificates);
AND
WHEREAS, the Issuer and the Holders now desire to acknowledge certain of the
Price Protections and waive certain others as more fully set forth
below.
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. |
The
Issuer acknowledges that the Warrant Amendment triggers the Price
Protections of the Notes, which has the effect of adjusting the Conversion
Price (as that term is defined in the Notes) of the Notes to
$0.25.
|
| 2. |
The
Holders hereby waive any Price Protections they have under the Warrants
arising out of the execution of the Warrant Amendment or the adoption
of
the Amended Certificates.
|
| 3. |
The
Holders hereby waive any Price Protections they have under the Amended
Series B Certificate arising out of the execution of the Warrant Amendment
or the adoption of the Amended
Certificates.
|
| 4. |
The
Holders further acknowledge that other than as set forth in the Warrant
Amendment, neither the execution of the Warrant Amendment nor the adoption
of the Amended Certificates will result in any changes to the number
of
shares purchasable by the Holders pursuant to the Warrants.
|
| 5. |
Each
of the parties confirms that the waivers given herein are limited to
the
specific circumstances laid out in this Waiver and
Acknowledgement.
|
IN
WITNESS WHEREOF, the parties have executed this WAIVER AND ACKNOWLEDGEMENT
as of
the date first above written.
|
The
Issuer:
|
|
|
By:
|
/s/
|
|
Xxxxxxx
Xxxxxxxxx
|
|
|
Chief
Financial Officer
|
|
|
The
Holders:
|
|
|
VISION
OPPORTUNITY MASTER FUND, LTD.
|
|
|
By:
|
/s/
|
|
Xxxx
Xxxxxxxx
|
|
|
Director
|
|
|
VISION
CAPITAL ADVANTAGE FUND, L.P.
|
|
|
By:
VCAF GP, LLC
|
|
|
Its:
General Partner
|
|
|
By:
|
/s/
|
|
Xxxx
Xxxxxxxx
|
|
|
Authorized
Signatory
|
|
EXHIBIT
A
The
Securities:
Notes
|
Holder
|
Principal Outstanding
|
Dated As Of
|
||
|
Vision
Opportunity Master Fund, Ltd.
|
$1,929,674
|
November
29, 2007
|
||
|
Vision
Opportunity Master Fund, Ltd.
|
$463,122
|
November
29, 2007
|
||
|
Vision
Opportunity Master Fund, Ltd.
|
$1,119,211
|
March
7, 2008
|
||
|
Vision
Opportunity Master Fund, Ltd.
|
$1,119,211
|
June
20, 2008
|
||
|
Vision
Capital Advantage Fund, L.P.
|
$570,326
|
November
29, 2007
|
||
|
Vision
Capital Advantage Fund, L.P.
|
$136,878
|
November
29, 2007
|
||
|
Vision
Capital Advantage Fund, L.P.
|
$330,789
|
March
7, 2008
|
||
|
Vision
Capital Advantage Fund, L.P.
|
$330,789
|
June
20, 2008
|
Warrants
|
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
|
Preferred
Stock
|
Holder
|
Series
|
Number of Shares Held
|
||
|
Vision
Opportunity Master Fund, Ltd.
|
Series A Convertible Preferred
|
6,432,246
|
||
|
Vision
Opportunity Master Fund, Ltd.
|
Series
B Convertible Preferred
|
1,011,535.4
|
||
|
Vision
Capital Advantage Fund, L.P.
|
Series
A Convertible Preferred
|
1,901,087
|
||
|
Vision
Capital Advantage Fund, L.P.
|
Series
B Convertible Preferred
|
298,964.6
|
