ACKNOWLEDGEMENT AND WAIVER OF ANTI-DILUTION ADJUSTMENTS
Exhibit
4.4
EXECUTION
COPY
ACKNOWLEDGEMENT
AND WAIVER OF ANTI-DILUTION ADJUSTMENTS
This
Acknowledgement and Waiver of Anti-Dilution Adjustments (this “Acknowledgement”), dated as of
February 25, 2010, 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 and VOMF
have entered into a Note and Warrant Purchase Agreement dated as of February 25,
2010, wherein VOMF purchased from the Company, 10% convertible bridge notes (the
“February Notes ”);
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 February Notes, the Company acknowledges that
the February 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 February Notes, the Company acknowledges that
the February Notes trigger the Price Protections of the Series B Preferred
Stock, provided
however , that VOMF and VCAF, as applicable, hereby waive such Price
Protections.
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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