Exhibit 4.3
THIS WARRANT
AND THE SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE HEREOF HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE “ SECURITIES 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 WARRANT AND
THE SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE HEREOF MAY BE
SOLD, TRANSFERRED, OR OTHERWISE DISPOSED OF, UNDER AN
EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT AND SUCH STATE
SECURITIES LAWS.
SERIES A WARRANT TO
PURCHASE
SHARES OF COMMON STOCK
OF
JUMA TECHNOLOGY CORP.
Expires May 21, 2014
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No.:
W-A-01-09
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Number of Shares:
15,141,667
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Date of
Issuance: May 21, 2009
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FOR VALUE RECEIVED, the undersigned, JUMA
TECHNOLOGY CORP., a Delaware corporation (together with its
successors and assigns, the “ Issuer ”),
hereby certifies that Vision Opportunity Master Fund, Ltd. or its
registered assigns is entitled to subscribe for and purchase,
during the Term (as hereinafter defined), up to fifteen million one
hundred forty one thousand six hundred sixty seven (15,141,667)
shares (subject to adjustment as hereinafter provided) of the duly
authorized, validly issued, fully paid and non-assessable Common
Stock of the Issuer, at an exercise price per share equal to the
Warrant Price then in effect, subject, however, to the provisions
and upon the terms and conditions hereinafter set
forth. Capitalized terms used in this Warrant and not
otherwise defined herein shall have the respective meanings
specified in Section 8 hereof.
1.
Term . The term of this Warrant shall
commence on May 21, 2009 and shall expire at 6:00 p.m., Eastern
Time, on May 21, 2014 (such period being the “
Term ”).
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Method of
Exercise; Payment; Issuance of New Warrant; Transfer and
Exchange .
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(a)
Time of Exercise . The purchase rights
represented by this Warrant may be exercised in whole or in part
during the Term.
(b)
Method of Exercise . The Holder hereof may
exercise this Warrant, in whole or in part, by the surrender of
this Warrant (with the exercise form attached hereto duly executed)
at the principal office of the Issuer, and by the payment to the
Issuer of an amount of consideration therefor equal to the Warrant
Price in effect on the date of such exercise multiplied by the
number of shares of Warrant Stock with respect to which this
Warrant is then being exercised, payable at such Holder's election
(i) by certified or official bank check or by wire transfer to an account designated by the
Issuer, (ii) by “cashless exercise” in
accordance with the provisions of subsection (c) of
this Section 2 , or (iii) by a combination of the
foregoing methods of payment selected by the Holder of this
Warrant.
(c)
Cashless Exercise . Notwithstanding any
provisions herein to the contrary and commencing eighteen (18)
months following the Original Issue Date if (i) the Registration
Statement (as defined in the Purchase Agreement) covering the
Warrant Stock has not been declared
effective under the Securities Act and/or (ii) an effective
Registration Statement has been suspended by the Company for
any or no reason, the Holder may exercise this Warrant by a
cashless exercise and shall receive the number of shares of Common
Stock equal to an amount (as determined below) by surrender of this
Warrant at the principal office of the Issuer together with the
properly endorsed Notice of Exercise in which event the Issuer
shall issue to the Holder a number of shares of Common Stock
computed using the following formula:
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X = Y -
(A)(Y)
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Where
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X =
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the number of
shares of Common Stock to be issued to the Holder.
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Y =
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the number of
shares of Common Stock purchasable upon exercise of all of the
Warrant or, if only a portion of the Warrant is being exercised,
the portion of the Warrant being exercised.
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A =
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the Warrant
Price.
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B =
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the Per Share
Market Value of one share of Common Stock.
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(d)
Issuance of Stock Certificates . In the event of
any exercise of this Warrant in accordance with and subject to the
terms and conditions hereof, certificates for the shares of Warrant
Stock so purchased shall be dated the date of such exercise and
delivered to the Holder hereof within a reasonable time, not
exceeding three (3) Trading Days after such exercise (the “
Delivery Date ”) or, at the request of the
Holder (provided that a registration statement under the Securities
Act providing for the resale of the Warrant Stock is then in
effect), issued and delivered to the Depository Trust Company
(“ DTC ”) account on the Holder’s
behalf via the Deposit Withdrawal Agent Commission System (“
DWAC ”) within a reasonable time, not exceeding
three (3) Trading Days after such exercise, and the Holder hereof
shall be deemed for all purposes to be the holder of the shares of
Warrant Stock so purchased as of the date of such
exercise. Notwithstanding the foregoing to the contrary,
the Issuer or its transfer agent shall only be obligated to issue
and deliver the shares to the DTC on a holder’s behalf via
DWAC if the Issuer and its transfer agent
are participating in DTC through the DWAC system
. The Holder shall deliver
this original Warrant, or an indemnification undertaking with
respect to such Warrant in the case of its loss, theft or
destruction, at such time that this Warrant is fully
exercised. With respect to partial exercises of this
Warrant, the Issuer shall keep written records for the Holder of
the number of shares of Warrant Stock exercised as of each date of
exercise.
(e)
Compensation for Buy-In on Failure to Timely Deliver
Certificates Upon Exercise . In addition to any
other rights available to the Holder, if the Issuer fails to cause
its transfer agent to transmit to the Holder a certificate or
certificates representing the Warrant Stock pursuant to an exercise
on or before the Delivery Date, and if after such date the Holder
is required by its broker to purchase (in an open market
transaction or otherwise) shares of Common Stock to deliver in
satisfaction of a sale by the Holder of the Warrant Stock which the
Holder anticipated receiving upon such exercise (a “
Buy-In ”), then the Issuer shall (1) pay in
cash to the Holder the amount by which (x) the Holder’s total
purchase price (including brokerage commissions, if any) for the
shares of Common Stock so purchased exceeds (y) the amount obtained
by multiplying (A) the number of shares of Warrant Stock that the
Issuer was required to deliver to the Holder in connection with the
exercise at issue times (B) the price at which the sell
order giving rise to such purchase obligation was executed, and (2)
at the option of the Holder, either reinstate the portion of the
Warrant and equivalent number of shares of Warrant Stock for which
such exercise was not honored or deliver to the Holder the number
of shares of Common Stock that would have been issued had the
Issuer timely complied with its exercise and delivery obligations
hereunder. For example, if the Holder purchases Common
Stock having a total purchase price of $11,000 to cover a Buy-In
with respect to an attempted exercise of the Warrant for shares of
Common Stock with an aggregate sale price giving rise to such
purchase obligation of $10,000, under clause (1) of the immediately
preceding sentence the Issuer shall be required to pay the Holder
$1,000. The Holder shall provide the Issuer written notice
indicating the amounts payable to the Holder in respect of the
Buy-In, together with applicable confirmations and other evidence
reasonably requested by the Issuer. Nothing herein shall
limit a Holder’s right to pursue any other remedies available
to it hereunder, at law or in equity including, without limitation,
a decree of specific performance and/or injunctive relief with
respect to the Issuer’s failure to timely deliver
certificates representing shares of Common Stock upon exercise of
this Warrant as required pursuant to the terms hereof.
(f)
Transferability/Exchangeability of Warrant
. Subject to Section 2(h) hereof, this
Warrant may be transferred by a Holder, in whole or in part,
without the consent of the Issuer. If transferred
pursuant to this paragraph, this Warrant may be transferred on the
books of the Issuer by the Holder hereof in person or by duly
authorized attorney, upon surrender of this Warrant at the
principal office of the Issuer, properly endorsed (by the Holder
executing an assignment in the form attached hereto) and upon
payment of any necessary transfer tax or other governmental charge
imposed upon such transfer. This Warrant is exchangeable
at the principal office of the Issuer for Warrants to purchase the
same aggregate number of shares of Warrant Stock, each new Warrant
to represent the right to purchase such number of shares of Warrant
Stock as the Holder hereof shall designate at the time of such
exchange. All Warrants issued on transfers or exchanges
shall be dated the Original Issue Date and shall be identical with
this Warrant except as to the number of shares of Warrant Stock
issuable pursuant thereto.
(g)
Continuing Rights of Holder . The Issuer will, at
the time of or at any time after each exercise of this Warrant,
upon the request of the Holder hereof, acknowledge in writing the
extent, if any, of its continuing obligation to afford to such
Holder all rights to which such Holder shall continue to be
entitled after such exercise in accordance with the terms of this
Warrant; provided that if any such Holder shall fail to
make, or the Issuer shall fail to honor, any such request, the
failure shall not affect the continuing obligation of the Issuer to
afford such rights to such Holder.
(h)
Compliance with Securities Laws.
(i) The
Holder of this Warrant, by acceptance hereof, acknowledges that
this Warrant and the shares of Warrant Stock to be issued upon
exercise hereof are being acquired solely for the Holder's own
account and not as a nominee for any other party, and for
investment, and that the Holder will not offer, sell or otherwise
dispose of this Warrant or any shares of Warrant Stock to be issued
upon exercise hereof except pursuant to an effective registration
statement, or an exemption from registration, under the Securities
Act and any applicable state securities laws.
(ii) Except
as provided in paragraph (iii) below, this Warrant and all
certificates representing shares of Warrant Stock issued upon
exercise hereof shall be stamped or imprinted with a legend in
substantially the following form:
THIS WARRANT
AND THE SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE HEREOF HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE “ SECURITIES 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 WARRANT AND
THE SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE HEREOF MAY BE
SOLD, TRANSFERRED, OR OTHERWISE DISPOSED OF, UNDER AN
EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT AND SUCH STATE
SECURITIES LAWS.
(iii) The
Issuer agrees to reissue this Warrant or certificates representing
any of the Warrant Stock, without the legend set forth above if at
such time, prior to making any transfer of any such securities, the
Holder shall give written notice to the Issuer describing the
manner and terms of such transfer. Such proposed
transfer will not be effected until: (a) either (i) the Issuer has
received an opinion of counsel reasonably satisfactory to the
Issuer, to the effect that the registration of such securities
under the Securities Act is not required in connection with such
proposed transfer, (ii) a registration statement under the
Securities Act covering such proposed disposition has been filed by
the Issuer with the Securities and Exchange Commission and has
become effective under the Securities Act, (iii) the Issuer has
received other evidence reasonably satisfactory to the Issuer that
such registration and qualification under the Securities Act and
state securities laws are not required, or (iv) the Holder provides
the Issuer with reasonable assurances that such security can be
sold pursuant to Rule 144 under the Securities Act; and (b) either
(i) the Issuer has received an opinion of counsel reasonably
satisfactory to the Issuer, to the effect that registration or
qualification under the securities or “blue sky” laws
of any state is not required in connection with such proposed
disposition, or (ii) compliance with applicable state securities or
“blue sky” laws has been effected or a valid exemption
exists with respect thereto. The Issuer will respond to
any such notice from a holder within three (3) Trading
Days. In the case of any proposed transfer under this
Section 2(h) , the Issuer will pay the expenses of
and use reasonable efforts to comply with any such applicable state
securities or “blue sky” laws, but shall in no event be
required, (x) to qualify to do business in any state where it is
not then qualified, or (y) to take any action that would subject it
to tax or to the general service of process in any state where it
is not then subject. The restrictions on transfer contained in this
Section 2(h) shall be in addition to, and not by way
of limitation of, any other restrictions on transfer contained in
any other section of this Warrant. W henever a certificate representing the Warrant Stock
is required to be issued to a the Holder without a legend,
at the request of the Holder, in lieu of
delivering physical certificates representing the Warrant Stock,
the Issuer shall cause its transfer agent to electronically
transmit the Warrant Stock to the Holder by crediting the account
of the Holder's Prime Broker with DTC through its DWAC system (to
the extent not inconsistent with any provisions of this Warrant or
the Purchase Agreement).
(i)
Accredited Investor Status
. In no event may the Holder exercise this Warrant in
whole or in part unless the Holder is an “accredited
investor” as defined in Regulation D under the Securities
Act.
3.
Stock Fully Paid; Reservation and
Listing of Shares; Covenants .
(a)
Stock Fully Paid . The
Issuer represents, warrants, covenants and agrees that all shares
of Warrant Stock which may be issued upon the exercise of this
Warrant or otherwise hereunder will, when issued in accordance with
the terms of this Warrant, be duly authorized, validly issued,
fully paid and non-assessable and free from all taxes, liens and
charges. The Issuer further covenants and agrees that
during the period within which this Warrant may be exercised, the
Issuer will at all times have authorized and reserved for the
purpose of the issuance upon exercise of this Warrant a number of
authorized but unissued shares of Common Stock equal to at least
one hundred twenty percent (120%) of the number of shares of Common
Stock issuable upon exercise of this Warrant without regard to any
limitations on exercise.
(b)
Reservation . If any shares of Common Stock
required to be reserved for issuance upon exercise of this Warrant
or as otherwise provided hereunder require registration or
qualification with any Governmental Authority under any federal or
state law before such shares may be so issued, the Issuer will in
good faith use its best efforts as expeditiously as possible at its
expense to cause such shares to be duly registered or
qualified. If the Issuer shall list any shares of Common
Stock on any securities exchange or market it will, at its expense,
list thereon, and maintain and increase when necessary such listing
of, all shares of Warrant Stock from time to time issued upon
exercise of this Warrant or as otherwise provided hereunder (
provided that such Warrant Stock has been registered
pursuant to a registration statement under the Securities Act then
in effect), and, to the extent permissible under the applicable
securities exchange rules, all unissued shares of Warrant Stock
which are at any time issuable hereunder, so long as any shares of
Common Stock shall be so listed. The Issuer will also so
list on each securities exchange or market, and will maintain such
listing of, any other securities which the Holder of this Warrant
shall be entitled to receive upon the exercise of this Warrant if
at the time any securities of the same class shall be listed on
such securities exchange or market by the Issuer.
(c)
Covenants . The Issuer shall not by any action
including, without limitation, amending the Certificate of
Incorporation or the by-laws of the Issuer, or through any
reorganization, transfer of assets, consolidation, merger,
dissolution, issue or sale of securities or any other action, avoid
or seek to avoid the observance or performance of any of the terms
of this Warrant, but will at all times in good faith assist in the
carrying out of all such terms and in the taking of all such
actions as may be necessary or appropriate to protect the rights of
the Holder hereof against dilution (to the extent specifically
provided herein) or impairment. Without limiting the
generality of the foregoing, the Issuer will (i) not permit the par
value, if any, of its Common Stock to exceed the then effective
Warrant Price, (ii) not amend or modify any provision of the
Certificate of Incorporation or by-laws of the Issuer in any manner
that would materially and adversely affect the rights of the
Holders of the Warrants, (iii) take all such action as may be
reasonably necessary in order that the Issuer may validly and
legally issue fully paid and nonassessable shares of Common Stock,
free and clear of any liens, claims, encumbrances and restrictions
(other than as provided herein) upon the exercise of this Warrant,
and (iv) use its best efforts to obtain all such authorizations,
exemptions or consents from any public regulatory body having
jurisdiction thereof as may be reasonably necessary to enable the
Issuer to perform its obligations under this Warrant.
(d)
Loss, Theft, Destruction, Mutilation of Warrants
. Upon receipt of evidence satisfactory to the Issuer of
the ownership of and the loss, theft, destruction or mutilation of
any Warrant and, in the case of any such loss, theft or
destruction, upon receipt of indemnity or security satisfactory to
the Issuer or, in the case of any such mutilation, upon surrender
and cancellation of such Warrant, the Issuer will make and deliver,
in lieu of such lost, stolen, destroyed or mutilated Warrant, a new
Warrant of like tenor and representing the right to purchase the
same number of shares of Common Stock.
(e)
Payment of Taxes
. The Issuer will pay any
documentary stamp taxes attributable to the initial issuance of the
Warrant Stock issuable upon exercise of this Warrant; provided,
however , that the Issuer shall not be required to pay any tax
or taxes which may be payable in respect of any transfer involved
in the issuance or delivery of any certificates representing
Warrant Stock in a name other than that of the Holder in respect to
which such shares are issued.
4.
Adjustment of Warrant Price and Number of
Shares Issuable Upon Exercise . The Warrant
Price and the number of shares of Warrant Stock that may be
purchased upon exercise of this Warrant shall be subject to
adjustment from time to time as set forth in this Section
4 . The Issuer shall give the Holder notice of any event
described below which requires an adjustment pursuant to this
Section 4 in accordance with the notice provisions
set forth in Section 5 .
(a)
Recapitalization, Reorganization, Reclassification,
Consolidation, Merger or Sale .
(i) In
case the Issuer after the Original Issue Date shall do any of the
following (each, a “ Triggering Event ”):
(a) consolidate or merge with or into any other Person and the
Issuer shall not be the continuing or surviving Person of such
consolidation or merger, or (b) permit any other Person to
consolidate with or merge into the Issuer and the Issuer shall be
the continuing or surviving Person but, in connection with such
consolidation or merger, any Capital Stock of the Issuer shall be
changed into or exchanged for Securities of any other Person or
cash or any other property, or (c) transfer all or substantially
all of its properties or assets to any other Person, or (d) effect
a capital reorganization or reclassification of its Capital Stock,
then, and in the case of each such Triggering Event, proper
provision shall be made to the Warrant Price and the number of
shares of Warrant Stock that may be purchased upon exercise of this
Warrant so that, upon the basis and the terms and in the manner
provided in this Warrant, the Holder of this Warrant shall be
entitled upon the exercise hereof at any time after the
consummation of such Triggering Event, to the extent this Warrant
is not exercised prior to such Triggering Event, to receive at the
Warrant Price as adjusted to take into account the consummation of
such Triggering Event, in lieu of the Common Stock issuable upon
such exercise of this Warrant prior to such Triggering Event, the
Securities, cash and property to which such Holder would have been
entitled upon the consummation of such Triggering Event if such
Holder had exercised the rights represented by this Warrant
immediately prior thereto (including the right of a shareholder to
elect the type of consideration it will receive upon a Triggering
Event), subject to adjustments (subsequent to such corporate
action) as nearly equivalent as possible to the adjustments
provided for elsewhere in this Section 4 ,
provided, however , the Holder at its option may elect to
receive an amount in cash equal to the value of this Warrant
calculated in accordance with the Black-Scholes
formula. Immediately upon the occurrence of a Triggering
Event, the Issuer shall notify the Holder in writing of such
Triggering Event and provide the calculations in determining the
number of shares of Warrant Stock issuable upon exercise of the new
warrant and the adjusted Warrant Price. Upon the
Holder’s request, the continuing or surviving Person as a
result of such Triggering Event shall issue to the Holder a new
warrant of like tenor evidencing the right to purchase the adjusted
number of shares of Warrant Stock and the adjusted Warrant Price
pursuant to the terms and provisions of this Section
4(a)(i) . Notwithstanding the foregoing to the
contrary, this Section 4(a)(i) shall only apply if
the surviving entity pursuant to any such Triggering Event has a
class of equity securities registered
pursuant to the Exchange Act, and its common stock is listed or
quoted on a national securities exchange, national automated
quotation system or the OTC Bulletin Board. In the event
that the surviving entity pursuant to any such Triggering
Event 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 securities exchange, national
automated quotation system or the OTC Bulletin Board, then the
Holder shall have the right to demand that the Issuer pay to the
Holder an amount in cash equal to the value of this Warrant
calculated in accordance with the Black-Scholes
formula.
(ii) In
the event that the Holder has elected not to exercise this Warrant
prior to the consummation of a Triggering Event and has also
elected not to receive an amount in cash equal to the value of this
Warrant calculated in accordance with the Black-Scholes formula
pursuant to the provisions of Section 4(a)(i) above,
so long as the surviving entity pursuant to any Triggering Event is
a company that has a class of equity securities registered pursuant to the Exchange Act, and its
common stock is listed or quoted on a national securities exchange,
national automated quotation system or the OTC Bulletin
Board , the surviving entity and/or each Person (other than
the Issuer) which may be required to deliver any shares of Warrant
Stock (including all Securities, cash or property) upon the
exercise of this Warrant as provided herein shall assume, by
written instrument delivered to, and reasonably satisfactory to,
the Holder of this Warrant, (A) the obligations of the Issuer under
this Warrant (and if the Issuer shall survive the consummation of
such Triggering Event, such assumption shall be in addition to, and
shall not release the Issuer from, any continuing obligations of
the Issuer under this Warrant) and (B) the obligation to deliver to
such Holder such Securities, cash or property as, in accordance
with the foregoing provisions of this subsection (a)
, such Holder shall be entitled to receive, and the surviving
entity and/or each such Person shall have similarly delivered to
such Holder an opinion of counsel for the surviving entity and/or
each such Person, which counsel shall be reasonably satisfactory to
such Holder, or in the alternative, a written acknowledgement
executed by the President or Chief Financial Officer of the Issuer,
stating that this Warrant shall thereafter continue in full force
and effect and the terms hereof (including, without limitation, all
of the provisions of this subsection (a) ) shall be
applicable to the shares Warrant Stock (including all Securities,
cash or property) which the surviving entity and/or each such
Person may be required to deliver upon any exercise of this Warrant
or the exercise of any rights pursuant hereto.
(b)
Stock Dividends, Subdivisions and
Combinations . If at any time the Issuer
shall:
(i) make
or issue or set a record date for the holders of the Common Stock
for the purpose of entitling them to receive a dividend payable in,
or other distribution of, shares of Common Stock,
(ii) subdivide
its outstanding shares of Common Stock into a larger number of
shares of Common Stock, or
(iii)
combine its outstanding shares
of Common Stock into a smaller number of shares of Common
Stock,
then (1) the
number of shares of Common Stock for which this Warrant is
exercisable immediately after the occurrence of any such event
shall be adjusted to equal the number of shares of Common Stock
which a record holder of the same number of shares of Common Stock
for which this Warrant is exercisable immediately prior to the
occurrence of such event would own or be entitled to receive after
the happening of such event, and (2) the Warrant Price then in
effect shall be adjusted to equal (A) the Warrant Price then in
effect multiplied by the number of shares of Common Stock for which
this Warrant is exercisable immediately prior to the adjustment
divided by (B) the number of shares of Common Stock for which this
Warrant is exercisable immediately after such
adjustment.
(c)
Certain Other Distributions . If at any time the
Issuer shall make or issue or set a record date for the holders of
the Common Stock for the purpose of entitling them to receive any
dividend or other distribution of:
(ii)
any evidences of its indebtedness, any shares of stock of any class
or any other Securities or property of any nature whatsoever (other
than cash, Common Stock Equivalents or Additional Shares of Common
Stock), or
(iii) any
warrants or other rights to subscribe for or purchase any evidences
of its indebtedness, any shares of stock of any class or any other
securities or property of any nature whatsoever (other than cash,
Commo
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