EXECUTION COPY
Exhibit 4.2
EXECUTION
COPY
THIS
NOTE AND THE SECURITIES ISSUABLE UPON CONVERSION HEREOF HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “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 THIS NOTE AND THE SECURITIES ISSUABLE UPON CONVERSION HEREOF MAY BE
SOLD, TRANSFERRED, OR OTHERWISE DISPOSED OF, UNDER AN EXEMPTION FROM
REGISTRATION UNDER THE ACT AND SUCH STATE SECURITIES LAWS.
10%
Convertible Bridge Note
Date:
January 28, 2010
$500,000.00
For value
received, JUMA TECHNOLOGY CORP., a Delaware corporation (the “Company”),
and NECTAR SERVICES CORP., a Delaware corporation (“Nectar”,
and together with the Company, the “Makers”),
hereby promise to pay to the order of Vision Opportunity Master Fund,
Ltd. (together with its successors, representatives, and permitted
assigns, the “Holder”),
in accordance with the terms hereinafter provided, the principal amount of five hundred thousand ($500,000.00)
dollars, together with interest thereon. The Makers are
issuing this 10% convertible bridge note (the “Note”)
to the Holder pursuant to the Purchase Agreement (as defined in Section
1.1 hereof).
All
payments under or pursuant to this Note shall be made in United States Dollars
in immediately available funds to the Holder at the address of the Holder as set
forth in the Purchase Agreement or at such other place as the Holder may
designate from time to time in writing to the Makers or by wire transfer of
funds to the Holder’s account, instructions for which are attached hereto as
Exhibit
A. The outstanding principal balance and all accrued Interest (as
defined herein) of this Note shall be due and payable on May 21, 2010 (the
“Maturity
Date”) or at such earlier time as provided herein.
ARTICLE
I
(a) Other
than such indebtedness existing as of the Issuance Date, the Makers will not,
and will not permit any Subsidiary to, directly or indirectly, enter into,
create, incur, assume or suffer to exist any indebtedness of any kind, that is
senior in any respect to the Makers’ obligations under the Notes, and the Makers
will not, and will not permit any Subsidiary to, directly or indirectly, incur
any Lien on or with respect to any of its property or assets now owned or
hereafter acquired or any interest therein or any income or profits therefrom,
except for indebtedness with respect to capital leases incurred in the ordinary
course of business.
(b) So
long as any Notes are outstanding, none of the Makers nor any Subsidiary shall,
directly or indirectly, (i) redeem, purchase or otherwise acquire any of the
Company’s capital stock or set aside any monies for such a redemption, purchase
or other acquisition or (ii) issue any Options or Convertible Securities with an
exercise price or a conversion price or a number of underlying shares that
floats or resets or otherwise varies or is subject to adjustment based (directly
or indirectly) on market prices of the Common Stock.
Section
1.4 Payment on Non-Business
Days. Whenever any payment to be made shall be due on a
Saturday, Sunday or a public holiday under the laws of the State of New York,
such payment may be due on the next succeeding business day and such next
succeeding day shall be included in the calculation of the amount of accrued
Interest payable on such date.
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(a) the
Makers shall fail to make any principal or Interest payments due under this Note
on the date such payments are due and such default is not fully cured within ten
(10) business days after the occurrence thereof; or
(c) the
suspension from listing, without subsequent listing on any one of, or the
failure of the Common Stock to be listed or quoted on at least one of the OTC
Bulletin Board, the American Stock Exchange, the NASDAQ Global Market, the
NASDAQ Capital Market or The New York Stock Exchange, Inc. for a period of ten
(10) consecutive Trading Days; or
(d) the
Company’s notice to the Holder, including by way of public announcement, at any
time, of its inability to comply (including for any of the reasons described in
Section
3.8(a) hereof) or its intention not to comply with proper requests for
conversion of this Note into shares of Common Stock; or
(e) either
(i) the Makers shall fail to timely deliver the shares of Common Stock upon an
Optional Conversion of the Note, or (ii) the Makers shall fail to make the
payment of any fees and/or liquidated damages under this Note or the Purchase
Agreement, which failure is not remedied within ten (10) business days after the
occurrence thereof; or
(f)
Intentionally
Omitted; or
(g) default
shall be made in the performance or observance of (i) any covenant, condition or
agreement contained in this Note and such default is not fully cured within ten
(10) business days after the Holder delivers written notice to the Makers of the
occurrence thereof or (ii) any covenant, condition or agreement contained in the
Purchase Agreement, the Other Notes, the Warrants or any other Transaction
Document which is not covered by any other provisions of this Section
2.1 and such default is not fully cured within ten (10) business days
after the Holder delivers written notice to the Makers of the occurrence
thereof; or
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(i)
either of the
Makers shall after the Issuance Date (A) default in any payment of any amount or
amounts of principal of or interest on any indebtedness (other than the
indebtedness hereunder) the aggregate principal amount of which indebtedness is
in excess of $100,000 or (B) default in the
observance or performance of any other agreement or condition relating to any
indebtedness or contained in any instrument or agreement evidencing, securing or
relating thereto, or any other event shall occur or condition exist, the effect
of which default or other event or condition is to cause, or to permit the
holder or holders or beneficiary or beneficiaries of such indebtedness to cause
with the giving of notice if required, such indebtedness to become due prior to
its stated maturity; or
(m) the
failure of either of the Makers to pay any other amounts due to the Holder
herein or any other Transaction Document within ten (10) business days of the
date such payments are due and such default is not fully cured within ten (10)
business days after the Holder delivers written notice to the Maker of the
occurrence thereof; or
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(n) the
occurrence of an event of default under any other Transaction
Document.
ARTICLE
III
Section
3.1 (a) Optional
Conversion. At any time and from time to time on or after the
Issuance Date, this Note shall be convertible (in whole or in part), at the
option of the Holder (an “Optional
Conversion”), into such number of fully paid and non-assessable shares of
Common Stock as is determined by dividing (x) that portion of the outstanding
principal balance under this Note as of such date that the Holder elects to
convert by (y) the Conversion Price (as defined in Section
3.2(a) hereof) then in effect (the “Optional
Conversion Rate”) on the date on which the Holder faxes a notice of
conversion (the “Optional
Conversion Notice”), duly executed, to the Company (facsimile number
(000) 000-0000, Attn.: Chief Executive Officer) (an “Optional
Conversion Date”); provided, however, that the
Conversion Price shall be subject to adjustment as described in Section
3.6 of this Note. The Holder shall deliver this Note to the
Company at the address designated in the Purchase Agreement as soon as
practicable after such time that this Note is fully converted. With
respect to partial conversions of this Note, the Company shall keep and attach
hereto written records of the amount of this Note converted as of each
Conversion Date.
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(a) The
term “Conversion
Price” shall mean $0.15, subject to adjustment under Section
3.6 hereof.
(b) The
term “Conversion
Shares” shall mean such shares of Common Stock issuable upon an Optional
Conversion of this Note. The term “Conversion
Securities” shall mean such securities of the Company issuable upon a
Mandatory Conversion of this Note in connection with the occurrence of a
Qualified Financing.
(c) Notwithstanding
any of the foregoing to the contrary, if during any period (a “Black-out
Period”), the Holder is unable to trade any Common Stock issued or
issuable upon an Optional Conversion of this Note immediately due to the
postponement of filing or delay or suspension of effectiveness of the
Registration Statement or because the Company has otherwise informed such Holder
that an existing prospectus cannot be used at that time in the sale or transfer
of such Common Stock, such Holder shall have the option but not the obligation
on any Optional Conversion Date within ten (10) Trading Days following the
expiration of the Black-out Period of using the Conversion Price applicable on
such Optional Conversion Date or any Conversion Price selected by the Holder
that would have been applicable had such Optional Conversion Date been at any
earlier time during the Black-out Period or within the ten (10) Trading Days
thereafter. In no event shall the Black-out Period have any effect on
the Maturity Date of this Note.
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(a) Not
later than three (3) Trading Days after any Optional Conversion Date or the
Mandatory Conversion Date, as the case may be (the “Delivery
Date”), the Company or its designated transfer agent, as applicable,
shall issue and deliver to (i) the Depository Trust Company (“DTC”)
account on the Holder’s behalf via the Deposit Withdrawal Agent Commission
System (“DWAC”)
as specified in the Optional Conversion Notice, registered in the name of the
Holder or its designee, for the number of shares of Common Stock to which the
Holder shall be entitled, or (ii) to the Holder, the Conversion Securities as
specified in the Mandatory Conversion Notice. Notwithstanding the
foregoing, in the alternative, not later than the Delivery Date, the Company
shall deliver to the Holder by express courier a certificate or certificates
which shall be free of restrictive legends and trading restrictions (other than
those required by Section
5.1 of the Purchase Agreement and/or the related documentation of the
Qualified Financing, as the case may be) representing the number of Conversion
Shares or Conversion Securities, as the case may be, being acquired upon the
conversion of this Note. If in the case of any Optional Conversion
such DWAC transfer or certificate or certificates are not delivered to or as
directed by the applicable Holder by the Delivery Date, the Holder shall be
entitled by written notice to the Company at any time on or before its receipt
of such certificate or certificates thereafter, to rescind such Optional
Conversion, in which event the Company shall immediately return this Note
tendered for Optional Conversion, whereupon the Company and the Holder shall
each be restored to their respective positions immediately prior to the delivery
of such notice of revocation, except that any amounts described in Sections
3.3(b) and (c)
shall be payable through the date notice of rescission is given to the
Maker.
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(i) Adjustments for Stock Splits
and Combinations. If the Company shall at any time or from
time to time after the Issuance Date, effect a stock split of the outstanding
Common Stock, the applicable Conversion Price in effect immediately prior to the
stock split shall be proportionately decreased. If the Company shall
at any time or from time to time after the Issuance Date, combine the
outstanding shares of Common Stock, the applicable Conversion Price in effect
immediately prior to the combination shall be proportionately
increased. Any adjustments under this Section
3.6(a)(i) shall be effective at the close of business on the date the
stock split or combination occurs.
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(ii)
Adjustments for Certain
Dividends and Distributions. If the Company shall at any time
or from time to time after the Issuance Date, make or issue or set a record date
for the determination of holders of Common Stock entitled to receive a dividend
or other distribution payable in shares of Common Stock, then, and in each
event, the applicable Conversion Price in effect immediately prior to such event
shall be decreased as of the time of such issuance or, in the event such record
date shall have been fixed, as of the close of business on such record date, by
multiplying, the applicable Conversion Price then in effect by a
fraction:
(1) the
numerator of which shall be the total number of shares of Common Stock issued
and outstanding immediately prior to the time of such issuance or the close of
business on such record date; and
(2) the
denominator of which shall be the total number of shares of Common Stock issued
and outstanding immediately prior to the time of such issuance or the close of
business on such record date plus the number of shares of Common Stock issuable
in payment of such dividend or distribution.
(iii) Adjustment for Other
Dividends and Distributions. If the Company shall at any time
or from time to time after the Issuance Date, make or issue or set a record date
for the determination of holders of Common Stock entitled to receive a dividend
or other distribution payable in other than shares of Common Stock, then, and in
each event, an appropriate revision to the applicable Conversion Price shall be
made and provision shall be made (by adjustments of the Conversion Price or
otherwise) so that the holders of this Note shall receive upon conversions
thereof, in addition to the number of shares of Common Stock receivable thereon,
the number of securities of the Company which they would have received had this
Note been converted into Common Stock on the date of such event and had
thereafter, during the period from the date of such event to and including the
Conversion Date, retained such securities (together with any distributions
payable thereon during such period), giving application to all adjustments
called for during such period under this Section
3.6(a)(iii) with respect to the rights of the holders of this Note and
the Other Notes; provided,
however, that if such record date shall have been fixed and such dividend
is not fully paid or if such distribution is not fully made on the date fixed
therefor, the Conversion Price shall be adjusted to the Conversion Price in
effect immediately prior to such adjustment until the time of actual payment of
such dividends or distributions.
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(v) Adjustments for
Reorganization, Merger, Consolidation or Sales of Assets. If
at any time or from time to time after the Issuance Date there shall be a
capital reorganization of the Company (other than by way of a stock split or
combination of shares or stock dividends or distributions provided for in Section
3.6(a)(i), (ii)
and (iii),
or a reclassification, exchange or substitution of shares provided for in Section
3.6(a)(iv)), or a merger or consolidation of the Company with or into
another corporation where the holders of outstanding voting securities of the
Company prior to such merger or consolidation do not own over fifty percent
(50%) of the outstanding voting securities of the merged or consolidated entity,
immediately after such merger or consolidation, or the sale of all or
substantially all of the Company’s properties or assets to any other person (an
“Organic
Change”), then as a part of such Organic Change, (A) if the surviving
entity in any such Organic Change is a public company that is registered
pursuant to the Securities Exchange Act of 1934, as amended (the “Exchange
Act”), and its common stock is listed or quoted on a national exchange or
the OTC Bulletin Board, an appropriate revision to the Conversion Price shall be
made and provision shall be made (by adjustments of the Conversion Price) so
that the Holder shall have the right thereafter to convert such Note into the
kind and amount of shares of stock and other securities or property of the
Company or any successor corporation as it would have received as a result of
such Organic Change if it had converted this Note into Common Stock immediately
prior to such Organic Change, and (B) if the surviving entity in any such
Organic Change is not a public company that is registered pursuant to the
Exchange Act, or its common stock is not listed or quoted on a national exchange
or the OTC Bulletin Board, the Holder shall have the right to demand prepayment
pursuant to Section
3.7(b) hereof. In any such case, appropriate adjustment shall
be made in the application of the provisions of this Section
3.6(a)(v) with respect to the rights of the Holder after the Organic
Change to the end that the provisions of this Section
3.6(a)(v) (including any adjustment in the applicable Conversion Price
then in effect and the number of shares of stock or other securities deliverable
upon conversion of this Note) shall be applied after that event in as nearly an
equivalent manner as may be practicable.
(vi) Adjustments for Issuance of
Additional Shares of Common Stock.
(1) In
the event the Company shall, at any time within one (1) year following the
Issuance Date (the “Full
Ratchet Period”), issue or sell any additional shares of common stock
(otherwise than as provided in the foregoing subsections (i) through
(v) of this Section
3.6(a) or pursuant to Common Stock Equivalents (hereafter defined)
granted or issued prior to the Issuance Date) (“Additional
Shares of Common Stock”), at a price per share less than the Conversion
Price then in effect or without consideration (the “New
Conversion Price”), then the Conversion Price upon each such issuance
shall be reduced to an amount equal to such New Conversion
Price.
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(2) The
provisions of paragraph (1) of this Section
3.6(a)(vi) shall not apply to any issuance of Additional Shares of Common
Stock for which an adjustment is provided under Section
3.6(a)(vii). No adjustment of the number of shares of Common
Stock for which this Note shall be convertible shall be made under paragraph (1)
of this Section
3.6(a)(vi) upon the issuance of any Additional Shares of Common Stock
which are issued pursuant to the exercise of any Common Stock Equivalents, if
any such adjustment shall previously have been made upon the issuance of such
Common Stock Equivalents pursuant to Section
3.6(a)(vii).
(vii) Issuance of Common Stock
Equivalents. In the event the Company shall at any time within
the Full Ratchet Period issue any securities convertible into or exchangeable
for, directly or indirectly, Common Stock (“Convertible
Securities”), other than the Notes, or any rights or warrants or options
to purchase any such Common Stock or Convertible Securities, shall be issued or
sold (collectively, the “Common
Stock Equivalents”) and the aggregate price per share for which
Additional Shares of Common Stock may be issuable thereafter pursuant to such
Common Stock Equivalent, plus the consideration received by the Company for
issuance of such Common Stock Equivalent divided by the number of
shares of Common Stock issuable pursuant to such Common Stock Equivalent (the
“Aggregate
Per Common Share Price”) shall be less than the applicable Conversion
Price then in effect, or if, after any such issuance of Common Stock
Equivalents, the price per share for which Additional Shares of Common Stock may
be issuable thereafter is amended or adjusted, and such price as so amended
shall make the Aggregate Per Common Share Price be less than the applicable
Conversion Price in effect at the time of such amendment or adjustment, then the
applicable Conversion Price upon each such issuance or amendment shall be
adjusted as provided in the first sentence of subsection (vi) of this Section
3.6(a) on the basis that (1) the maximum number of Additional Shares of
Common Stock issuable pursuant to all such Common Stock Equivalents shall be
deemed to have been issued (whether or not such Common Stock Equivalents are
actually then exercisable, convertible or exchangeable in whole or in part) as
of the earlier of (A) the date on which the Company shall enter into a firm
contract for the issuance of such Common Stock Equivalent, or (B) the date of
actual issuance of such Common Stock Equivalent. No adjustment of the
applicable Conversion Price shall be made under this subsection (vii) upon the
issuance of any Convertible Security which is issued pursuant to the exercise of
any warrants or other subscription or purchase rights therefor, if any
adjustment shall previously have been made to the exercise price of such
warrants or other subscription or purchase rights therefor, then in effect upon
the issuance of such warrants or other subscription or purchase rights therefor
pursuant to this subsection (vii). No adjustment shall be made to the
Conversion Price upon the issuance of Common Stock pursuant to the exercise,
conversion or exchange of any Convertible Security or Common Stock Equivalent
where an adjustment to the Conversion Price was made as a result of the issuance
or purchase of any Convertible Security or Common Stock
Equivalent.
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(viii) Subsequent Common Stock and
Common Stock Equivalents Issues. In the event the Company,
shall, at any time after the Full Ratchet Period, issue or sell any Additional
Shares of Common Stock or Common Stock Equivalents (otherwise than as provided
in the foregoing subsections of this Section
4), at a price per share less than the Conversion Price, or without
consideration, the Conversion Price then in effect upon each such issuance shall
be adjusted to that price (rounded to the nearest cent) determined by
multiplying the Conversion Price by a fraction: (1) the numerator of which shall
be equal to the sum of
(A) the number of shares of Common Stock outstanding immediately prior to the
issuance of such Additional Shares of Common Stock plus (B) the number of shares
of Common Stock (rounded to the nearest whole share) which the aggregate
consideration for the total number of such Additional Shares of Common Stock so
issued would purchase at a price per share equal to the then Conversion Price;
and (2) the denominator of which shall be equal to the number of shares of
Common Stock outstanding immediately after the issuance of such Additional
Shares of Common Stock. No adjustment of the number of shares of
Common Stock shall be made upon the issuance of any Additional Shares of Common
Stock which are issued pursuant to the exercise of any warrants or other
subscription or purchase rights or pursuant to the exercise of any conversion or
exchange rights in any Common Stock Equivalents if any such adjustment shall
previously have been made upon the issuance of such warrants or other rights or
upon the issuance of such Common Stock Equivalents (or upon the issuance of any
warrant or other rights therefore).
(ix) Consideration for
Stock. In case any shares of Common Stock or any Common Stock
Equivalents shall be issued or sold:
(1) in
connection with any merger or consolidation in which the Company is the
surviving corporation (other than any consolidation or merger in which the
previously outstanding shares of Common Stock of the Company shall be changed to
or exchanged for the stock or other securities of another corporation), the
amount of consideration therefor shall be, deemed to be the fair market value,
as determined reasonably and in good faith by the board of directors of the
Company (the “Board”),
of such portion of the assets and business of the nonsurviving corporation as
the Board may determine to be attributable to such shares of Common Stock,
Convertible Securities, rights or warrants or options, as the case may be;
or
(2) in
the event of any consolidation or merger of the Company in which the Company is
not the surviving corporation or in which the previously outstanding shares of
Common Stock of the Company shall be changed into or exchanged for the stock or
other securities of another corporation, or in the event of any sale of all or
substantially all of the assets of the Company for stock or other securities of
any corporation, the Company shall be deemed to have issued a number of shares
of its Common Stock for stock or securities or other property of the other
corporation computed on the basis of the actual exchange ratio on which the
transaction was predicated, and for a consideration equal to the fair market
value on the date of such transaction of all such stock or securities or other
property of the other corporation. If any such calculation results in
adjustment of the applicable Conversion Price, or the number of shares of Common
Stock issuable upon conversion of the Notes, the determination of the applicable
Conversion Price or the number of shares of Common Stock issuable upon
conversion of the Notes immediately prior to such merger, consolidation or sale,
shall be made after giving effect to such adjustment of the number of shares of
Common Stock issuable upon conversion of the Notes. In the event
Common Stock is issued with other shares or securities or other assets of the
Company for consideration which covers both, the consideration computed as
provided in this Section
3.6(viii) shall be allocated among such securities and assets as
determined in good faith by the Board.
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(x) Adjustment for the Failure
of a Qualified Financing. If the Company does not close a
Qualified Financing within one hundred twenty (120) days from the Issuance Date,
the Conversion Price of this Note shall be automatically reduced to the lesser
of (i) the Conversion Price then in effect and (ii) $0.15.
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(e) “Major
Transaction.” A “Major
Transaction” shall be deemed to have occurred at such time as any of the
following events have occurred:
(i) the
consolidation, merger or other business combination of the Company with or into
another Person (as defined in Section
4.13 hereof) (other than (A) pursuant to a migratory merger effected
solely for the purpose of changing the jurisdiction of incorporation of the
Company or (B) a consolidation, merger or other business combination in which
holders of the Company’s voting power immediately prior to the transaction
continue after the transaction to hold, directly or indirectly, the voting power
of the surviving entity or entities necessary to elect a majority of the members
of the board of directors (or their equivalent if other than a corporation) of
such entity or entities); or
(ii) the
sale or transfer of more than fifty percent (50%) of the Company’s assets (based
on the fair market value as determined in good faith by the Board) other than
inventory in the ordinary course of business in one or a related series of
transactions; or
(iii) closing
of a purchase, tender or exchange offer made to the holders of more than fifty
percent (50%) of the outstanding shares of Common Stock in which more than fifty
percent (50%) of the outstanding shares of Common Stock were tendered and
accepted; or
(iv) a
change in more than fifty percent (50%) of the current members of the Company’s
Board of Directors as of the Issuance Date, except for such changes approved by
the Holder of this Note.
(f) “Triggering
Event.” A “Triggering
Event” shall be deemed to have occurred at such time as any of the
following events:
(i) Intentionally
Omitted;
(ii) the
suspension from listing, without subsequent listing on any one of, or the
failure of the Common Stock to be listed on at least one of the OTC Bulletin
Board, the American Stock Exchange, the NASDAQ Global Market, the NASDAQ Capital
Market or The New York Stock Exchange, Inc., for a period of ten (10)
consecutive Trading Days;
(iii) the
Company’s notice to the Holder or any Other Holders, including by way of public
announcement, at any time, of its inability to comply (including for any of the
reasons described in Section
3.8(a) hereof) or its intention not to comply with proper requests for
conversion of any Notes into shares of Common Stock; or
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(iv) the
Company’s failure to comply with an Optional Conversion Notice tendered in
accordance with the provisions of this Note within five (5) Trading Days after
the receipt by the Company of the Optional Conversion Notice; or
(v)
the Company deregisters its shares of
Common Stock and as a result such shares of Common Stock are no longer publicly
traded; or
(vi) the
Company consummates a “going private” transaction and as a result the Common
Stock is no longer registered under Sections 12(b) or 12(g) of the Exchange Act;
or
(vii) either
of the Makers breach any representation, warranty, covenant or other term or
condition of the Purchase Agreement, this Note or any other agreement, document,
certificate or other instrument delivered in connection with the transactions
contemplated thereby or hereby, except to the extent that such breach would not
have a Material Adverse Effect (as defined in the Purchase Agreement) and
except, in the case of a breach of a covenant which is curable, only if such
breach continues for a period of a least twenty (20) business days.
(h) Mechanics of Prepayment at
Option of Holder Upon Major Transaction. No sooner than
fifteen (15) days nor later than ten (10) days prior to the consummation of a
Major Transaction, but in no event prior to the public announcement
of such Major Transaction, the Makers shall deliver written notice thereof via
facsimile and overnight courier (“Notice of
Major Transaction”) to the Holder of this Note and the Other
Holders. At any time after receipt of a Notice of Major Transaction
(or, in the event a Notice of Major Transaction is not delivered at least ten
(10) days prior to a Major Transaction, at any time during the ten (10) day
period prior to a Major Transaction), the Holder of this Note and the Other
Holders of the Other Notes then outstanding may require the Makers to prepay,
effective immediately prior to the consummation of such Major Transaction, all
or any portion of this Note then outstanding by delivering written notice
thereof via facsimile and overnight courier (“Notice of
Prepayment at Option of Holder Upon Major Transaction”) to the Makers,
which Notice of Prepayment at Option of Holder Upon Major Transaction shall
indicate (i) the principal amount of this Note that the Holder is electing to
have prepaid and (ii) the applicable Major Transaction Prepayment Price, as
calculated pursuant to Section
3.7(b) above.
(i) Mechanics of Prepayment at
Option of Holder Upon Triggering Event. Within three (3)
business days after the occurrence of a Triggering Event, the Makers shall
deliver written notice thereof via facsimile and overnight courier (“Notice of
Triggering Event”) to the Holder and the Other Holders. At any
time after the earlier of the Holder’s receipt of a Notice of Triggering Event
and the Holder becoming aware of a Triggering Event, the Holder of
this Note and the Other Holders of the Other Notes then outstanding may require
the Makers to prepay all or any portion of this Note then outstanding by
delivering written notice thereof via facsimile and overnight courier (“Notice of
Prepayment at Option of Holder Upon Triggering Event”) to the Makers,
which Notice of Prepayment at Option of Holder Upon Triggering Event shall
indicate (i) the amount of the Note that the Holder is electing to have prepaid
and (ii) the applicable Triggering Event Prepayment Price, as calculated
pursuant to Section
3.7(c) above. The Holder shall only be permitted to require
the Makers to prepay this Note pursuant to Section
3.7 hereof for the greater of a period of ten (10) days after receipt by
the Holder of a Notice of Triggering Event or for so long as such Triggering
Event is continuing.
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18
Section
3.8 Inability to Fully
Convert.
(a) Holder’s Option if Maker
Cannot Fully Convert. If, upon the Company’s receipt of an
Optional Conversion Notice, the Company cannot issue registered shares of Common
Stock, for any reason, including, without limitation, because the Company (x)
does not have a sufficient number of shares of Common Stock authorized and
available, (y) is otherwise prohibited by applicable law or by the rules or
regulations of any stock exchange, interdealer quotation system or other
self-regulatory organization with jurisdiction over the Company or any of its
securities from issuing all of the Common Stock which is to be issued to the
Holder pursuant to a Conversion Notice or (z) fails to have a sufficient number
of registered shares of Common Stock, then the Company shall issue as many
shares of registered Common Stock, as it is able to issue in accordance with the
Holder’s Optional Conversion Notice and, with respect to the unconverted portion
of this Note, the Holder, solely at Holder’s option, can elect to:
(i) require
the Makers to prepay that portion of this Note for which the Company is unable
to issue Common Stock in accordance with the Holder’s Optional Conversion Notice
(the “Mandatory
Prepayment”) at a price per share equal to the Triggering Event
Prepayment Price as of such Conversion Date (the “Mandatory
Prepayment Price”);
(ii) require
the Company to issue restricted shares of Common Stock, if it is permissible for
the Company to do so, in accordance with the Holder’s Optional Conversion
Notice;
(iii) void
its Optional Conversion Notice and retain or have returned, as the case may be,
this Note (or the portion thereof) that was to be converted pursuant to the
Optional Conversion Notice (provided that the Holder’s voiding its Optional
Conversion Notice shall not effect the Makers’ obligations to make any payments
which have accrued prior to the date of such notice); or
(iv) exercise
its Buy-In rights pursuant to and in accordance with the terms and provisions of
Section
3.3(c) of this Note.
(b) Mechanics of Fulfilling
Holder’s Election. Upon receipt of a facsimile copy of an
Optional Conversion Notice from the Holder which cannot be fully satisfied as
described in Section
3.8(a) above, the Company shall within two (2) Trading Days send via
facsimile to the Holder a notice of the Company’s inability to fully satisfy the
Optional Conversion Notice (the “Inability
to Fully Convert Notice”). Such Inability to Fully Convert
Notice shall indicate (i) the reason why the Company is unable to fully satisfy
the Holder’s Optional Conversion Notice, (ii) the amount of this Note which
cannot be converted and (iii) the applicable Mandatory Prepayment
Price. The Holder shall notify the Makers of its election pursuant to
Section
3.8(a) above by delivering written notice via facsimile to the Makers
(“Notice in
Response to Inability to Convert”).
19
(c) Payment of Prepayment
Price. If the Holder shall elect to have its Note prepaid
pursuant to Section
3.8(a)(i) above, the Makers shall pay the Mandatory Prepayment Price to
the Holder within thirty (30) days of the Makers’ receipt of the Holder’s Notice
in Response to Inability to Convert, provided that prior to the
Makers’ receipt of the Holder’s Notice in Response to Inability to Convert the
Company has not delivered a notice to the Holder stating, to the satisfaction of
the Holder, that the event or condition resulting in the Mandatory Prepayment
has been cured and all Conversion Shares issuable to the Holder can and will be
delivered to the Holder in accordance with the terms of this Note. If
the Makers shall fail to pay the applicable Mandatory Prepayment Price to the
Holder on the date that is three (3) business days following the Makers’ receipt
of the Holder’s Notice in Response to Inability to Convert (other than pursuant
to a dispute as to the determination of the arithmetic calculation of the
Prepayment Price), in addition to any remedy the Holder may have under this Note
and the Purchase Agreement, such unpaid amount shall bear interest at the rate
of two percent (2%) per month (prorated for partial months) until paid in
full. Until the full Mandatory Prepayment Price is paid in full to
the Holder, the Holder may (i) void the Mandatory Prepayment with respect to
that portion of the Note for which the full Mandatory Prepayment Price has not
been paid, (ii) receive back such Note, and (iii) require that the Conversion
Price of such returned Note be adjusted to the lesser of (A) the Conversion
Price as in effect on the date on which the Holder voided the Mandatory
Prepayment and (B) the lowest Closing Bid Price during the period beginning on
the Optional Conversion Date and ending on the date the Holder voided the
Mandatory Prepayment.
(d) Pro-rata Conversion and
Prepayment. In the event the Company receives an Optional
Conversion Notice from the Holder and the Other Holders on the same day and the
Company can convert and prepay some, but not all, of this Note pursuant to this
Section
3.8, the Company shall convert and prepay from the Holder and each Other
Holder electing to have its Other Notes converted and prepaid at such time an
amount equal to the Holder or such Other Holder’s pro-rata amount of all the
Notes and the Other Notes being converted and prepaid at such time.
Section
3.9 No Rights as
Stockholder. Nothing contained in this Note shall be construed
as conferring upon the Holder, prior to the conversion of this Note, the right
to vote or to receive dividends or to consent or to receive notice as a
stockholder in respect of any meeting of stockholders for the election of
directors of the Company or of any other matter, or any other rights as a
stockholder of the Company.
20
ARTICLE
IV
Section
4.2 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. Nothing in this Section
4.2 shall affect or limit any right to serve process in any other manner
permitted by law.
21
“THIS
NOTE AND THE SECURITIES ISSUABLE UPON CONVERSION HEREOF HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “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 THIS NOTE AND THE SECURITIES ISSUABLE UPON CONVERSION HEREOF MAY BE
SOLD, TRANSFERRED, OR OTHERWISE DISPOSED OF, UNDER AN EXEMPTION FROM
REGISTRATION UNDER THE ACT AND SUCH STATE SECURITIES LAWS.”
22
Section
4.10 Parties in
Interest. This Note shall be binding upon, inure to the
benefit of and be enforceable by the Makers, the Holder and their respective
successors and permitted assigns.
Section
4.11 Failure or Indulgence Not
Waiver. No failure or delay on the part of the Holder in the
exercise of any power, right or privilege hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such power, right or
privilege preclude other or further exercise thereof or of any other right,
power or privilege, nor shall any waiver by the Holder of any such right or
rights on any one occasion be deemed a waiver of the same right or rights on any
future occasion.
Section
4.12 Makers’
Waivers.
(a) Except
as otherwise specifically provided herein, the Makers and all others that may
become liable for all or any part of the obligations evidenced by this Note,
hereby waive presentment, demand, notice of nonpayment, protest and all other
demands’ and notices in connection with the delivery, acceptance, performance
and enforcement of this Note, and do hereby consent to any number of renewals of
extensions of the time or payment hereof and agree that any such renewals or
extensions may be made without notice to any such persons and without affecting
their liability herein and do further consent to the release of any person
liable hereon, all without affecting the liability of the other persons, firms
or Makers liable for the payment of this Note, AND DO HEREBY WAIVE TRIAL BY
JURY.
(b) THE
MAKERS ACKNOWLEDGE THAT THE TRANSACTION OF WHICH THIS NOTE IS A PART IS A
COMMERCIAL TRANSACTION, AND TO THE EXTENT ALLOWED BY APPLICABLE LAW, HEREBY
WAIVES ITS RIGHT TO NOTICE AND HEARING WITH RESPECT TO ANY PREJUDGMENT REMEDY
WHICH THE HOLDER OR ITS SUCCESSORS OR ASSIGNS MAY DESIRE TO USE.
Section
4.13 Definitions. For
the purposes hereof, the following terms shall have the following
meanings:
“Convertible
Securities” means any convertible securities, warrants, options or other
rights to subscribe for or to purchase or exchange for, shares of Common Stock
or Common Stock Equivalents.
“Options”
shall mean any rights, warrants or options to subscribe for or purchase Common
Stock or Convertible Securities of the Company.
“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.
23
“Trading
Day” means (a) a day on which the Common Stock is traded on the OTC
Bulletin Board, or (b) if the Common Stock is not traded on the OTC Bulletin
Board, a day on which the Common Stock is quoted in the over-the-counter market
as reported by the National Quotation Bureau Incorporated (or any similar
organization or agency succeeding its functions of reporting prices); provided, however, that in
the event that the Common Stock is not listed or quoted as set forth in (a) or
(b) hereof, then Trading Day shall mean any day except Saturday, Sunday and any
day which shall be a legal holiday or a day on which banking institutions in the
State of New York are authorized or required by law or other government action
to close.
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blank]
24
IN
WITNESS WHEREOF, the Makers have caused this Note to be duly executed as of the
Issuance Date set out above.
By:
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Name:
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Title:
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NECTAR
SERVICES CORP.
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By:
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Name:
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Title:
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EXHIBIT
A
WIRE
INSTRUCTIONS
Payee:
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Bank:
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Address:
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Bank No.:
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Account
No.:
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Account
Name:
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FORM
OF
NOTICE OF
OPTIONAL CONVERSION INTO SHARES OF COMMON STOCK
(To be
Executed by the Registered Holder in
order to
Convert the Note into Shares of Common Stock)
The
undersigned hereby irrevocably elects to convert $ ________________ of the
principal amount of the above Note No. ___ into shares of Common Stock of JUMA
TECHNOLOGY CORP. (the “Company”)
according to the conditions hereof, as of the date written below.
Date
of Conversion
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Applicable
Conversion Price
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Number of
shares of Common Stock beneficially owned or deemed beneficially owned by the
Holder on the Date of Conversion: _________________________
Signature
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[Name]
Address:
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27