Contract
Exhibit
4.4
NEITHER
THESE SECURITIES NOR THE SECURITIES ISSUABLE UPON EXERCISE OF THESE SECURITIES
HAVE BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE
SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN
AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE
SECURITIES LAWS AS EVIDENCED BY A LEGAL OPINION OF COUNSEL TO THE TRANSFEROR
TO
SUCH EFFECT, THE SUBSTANCE OF WHICH SHALL BE REASONABLY ACCEPTABLE TO THE
COMPANY. THESE SECURITIES AND THE SECURITIES ISSUABLE UPON EXERCISE OF THESE
SECURITIES MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT SECURED
BY SUCH SECURITIES.
GOFISH
CORPORATION
WARRANT
| Warrant No. ___Original Issue |
Date:
June __,
2007
|
GoFish
Corporation,
a
Nevada corporation (the "Company"),
hereby
certifies that, for value received, _____________ or its registered assigns
(the
"Holder"),
is
entitled to purchase from the Company up to a total of ___________ shares of
Common Stock (each such share, a "Warrant
Share"
and all
such shares, the "Warrant
Shares"),
at any
time and from time to time from
and
after the one year anniversary of the Original Issue Date
and
through and including June ___, 2013 (the "Expiration
Date"),
and
subject to the following terms and conditions:
1. Definitions.
As used
in this Warrant, the following terms shall have the respective definitions
set
forth in this Section 1. Capitalized terms that are used and not defined in
this
Warrant that are defined in the Purchase Agreement (as defined below) shall
have
the respective definitions set forth in the Purchase Agreement.
“Business
Day”
means
any day except Saturday, Sunday and any day that is a federal legal holiday
or a
day on which banking institutions in the State of New York or State of
California are authorized or required by law or other governmental action to
close.
“Common
Stock”
means
the common stock of the Company, $0.001 par value per share, and any securities
into which such common stock may hereafter be reclassified.
"Exercise
Price" means
$1.75, subject to adjustment in accordance with Section 9.
"Fundamental
Transaction"
means
any of the following: (1) the Company effects any merger or consolidation of
the
Company with or into another Person, (2) the Company effects any sale of all
or
substantially all of its assets in one or a series of related transactions,
(3)
any tender offer or exchange offer (whether by the Company or another Person)
is
completed pursuant to which holders of Common Stock are permitted to tender
or
exchange their shares for other securities, cash or property, or (4) the Company
effects any reclassification of the Common Stock or any compulsory share
exchange pursuant to which the Common Stock is effectively converted into or
exchanged for other securities, cash or property.
“Original
Issue Date”
means
the Original Issue Date first set forth on the first page of this
Warrant.
“New
York Courts”
means
the state and federal courts sitting in the City of New York, Borough of
Manhattan.
"Purchase
Agreement"
means
the Purchase Agreement, dated June 7, 2007, to which the Company and the
original Holder are parties.
“Trading
Day”
means
(i) a day on which the Common Stock is traded on an Eligible Market, or (ii)
if
the Common Stock is not listed on an Eligible Market, a day on which the Common
Stock is traded in the over-the-counter market, as reported by the OTC Bulletin
Board or the Pink Sheets LLC, or (iii) if the Common Stock is not quoted on
the
OTC Bulletin Board, a day on which the Common Stock is quoted in the
over-the-counter market as reported by the Pink Sheets LLC (or any similar
organization or agency succeeding to its functions of reporting prices);
provided, that in the event that the Common Stock is not listed or quoted as
set
forth in (i), (ii) and (iii) hereof, then Trading Day shall mean a Business
Day.
2. Registration
of Warrant.
The
Company shall register this Warrant upon records to be maintained by the Company
for that purpose (the "Warrant
Register"),
in the
name of the record Holder hereof from time to time. The Company may deem and
treat the registered Holder of this Warrant as the absolute owner hereof for
the
purpose of any exercise hereof or any distribution to the Holder, and for all
other purposes, absent actual notice to the contrary.
3. Registration
of Transfers.
Subject
to the transfer restrictions set forth in the Purchase Agreement, the Company
shall register the transfer of any portion of this Warrant in the Warrant
Register, upon surrender of this Warrant, with the Form of Assignment attached
hereto duly completed and signed, to the Company at its address specified
herein. Upon any such registration or transfer, a new Warrant to purchase Common
Stock, in substantially the form of this Warrant (any such new Warrant, a
"New
Warrant"),
evidencing the portion of this Warrant so transferred shall be issued to the
transferee and a New Warrant evidencing the remaining portion of this Warrant
not so transferred, if any, shall be issued to the transferring Holder. The
acceptance of the New Warrant by the transferee thereof shall be deemed the
acceptance by such transferee of all of the rights and obligations of a holder
of a Warrant.
4. Exercise
and Duration of Warrants.
This
Warrant shall be exercisable by the registered Holder at any time and from
time
to time from and after the one year anniversary of the Original Issue Date
through and including the Expiration Date. At 6:30 p.m., New York City time
on
the Expiration Date, the portion of this Warrant not exercised prior thereto
shall be and become void and of no value. The Company may not call or redeem
any
portion of this Warrant without the prior written consent of the affected
Holder.
2
5. Delivery
of Warrant Shares.
(a) To
effect
exercises hereunder, the Holder shall not be required to physically surrender
this Warrant unless the aggregate Warrant Shares represented by this Warrant
is
being exercised. Upon delivery of the Exercise Notice (in the form attached
hereto) to the Company (with the attached Warrant Shares Exercise Log) at its
address for notice set forth herein and upon payment of the Exercise Price
multiplied by the number of Warrant Shares that the Holder intends to purchase
hereunder, the Company shall promptly (but in no event later than three Trading
Days after the Date of Exercise (as defined herein)) issue and deliver to the
Holder, a certificate for the Warrant Shares issuable upon such exercise, which,
unless otherwise required by the Purchase Agreement, shall be free of
restrictive legends. The Company shall, upon request of the Holder and
subsequent to the date on which a registration statement covering the resale
of
the Warrant Shares has been declared effective by the Securities and Exchange
Commission, use its reasonable best efforts to deliver Warrant Shares hereunder
electronically through the Depository Trust Corporation or another established
clearing corporation performing similar functions, if available, provided,
that,
the Company may, but will not be required to change its transfer agent if its
current transfer agent cannot deliver Warrant Shares electronically through
the
Depository Trust Corporation. A "Date
of Exercise"
means
the date on which the Holder shall have delivered to the Company: (i) the
Exercise Notice (with the Warrant Exercise Log attached to it), appropriately
completed and duly signed and (ii) if such Holder is not utilizing cashless
exercise to the extent permitted by this Warrant, payment of the Exercise Price
for the number of Warrant Shares so indicated by the Holder to be
purchased.
(b) If
by the
third Trading Day after a Date of Exercise the Company fails to deliver the
required number of Warrant Shares in the manner required pursuant to Section
5(a), then the Holder will have the right to rescind such exercise.
(c) If
by the
third Trading Day after a Date of Exercise the Company fails to deliver the
required number of Warrant Shares in the manner required pursuant to Section
5(a), and if after such third Trading Day and prior to the receipt of such
Warrant Shares, the Holder (or someone on the Holder’s behalf) purchases (in an
open market transaction or otherwise) shares of Common Stock to deliver in
satisfaction of a sale by the Holder of the Warrant Shares which the Holder
anticipated receiving upon such exercise (a "Buy-In"),
then
the Company 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 Warrant Shares that the Company was required
to
deliver to the Holder in connection with the exercise at issue by (B) the
closing bid price of the Common Stock on the Date of Exercise and (2) at the
option of the Holder, either reinstate the portion of the Warrant and equivalent
number of Warrant Shares 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 Company timely complied with its exercise and delivery obligations
hereunder. The Holder shall provide the Company written notice indicating the
amounts payable to the Holder in respect of the Buy-In. For example, if the
Investor purchases Common Stock having a total purchase price of $11,000 to
cover a Buy-In with respect to an attempted exercise of this Warrant with
respect to which the actual sale price of the Warrant Shares (including any
brokerage commissions) giving rise to such purchase obligation was a total
of
$10,000 under clause (1) of the immediately preceding sentence, the Company
shall be required to pay the Investor $1,000. Nothing herein shall limit an
Investor’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 Company’s failure to timely deliver
certificates representing shares of Common Stock upon exercise of this Warrant
as required pursuant to the terms hereof.
3
(d) The
Company's obligations to issue and deliver Warrant Shares in accordance with
the
terms hereof are absolute and unconditional, irrespective of any action or
inaction by the Holder to enforce the same, any waiver or consent with respect
to any provision hereof, the recovery of any judgment against any Person or
any
action to enforce the same, or any setoff, counterclaim, recoupment, limitation
or termination, or any breach or alleged breach by the Holder or any other
Person of any obligation to the Company or any violation or alleged violation
of
law by the Holder or any other Person, and irrespective of any other
circumstance which might otherwise limit such obligation of the Company to
the
Holder in connection with the issuance of Warrant Shares. Nothing herein shall
limit a Xxxxxx'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 Company's failure
to
timely deliver certificates representing Warrant Shares upon exercise of the
Warrant as required pursuant to the terms hereof.
6. Charges,
Taxes and Expenses.
Issuance and delivery of Warrant Shares upon exercise of this Warrant shall
be
made without charge to the Holder for any issue or transfer tax, withholding
tax, transfer agent fee or other incidental tax or expense in respect of the
issuance of such certificates, all of which taxes and expenses shall be paid
by
the Company; provided, however, that the Company shall not be required to pay
any tax which may be payable in respect of any transfer involved in the
registration of any certificates for Warrant Shares or Warrants in a name other
than that of the Holder. The Holder shall be responsible for all other tax
liability that may arise as a result of holding or transferring this Warrant
or
receiving Warrant Shares upon exercise hereof.
7. Replacement
of Warrant.
If this
Warrant is mutilated, lost, stolen or destroyed, the Company shall issue or
cause to be issued in exchange and substitution for and upon cancellation
hereof, or in lieu of and substitution for this Warrant, a New Warrant, but
only
upon receipt of evidence reasonably satisfactory to the Company of such loss,
theft or destruction and customary and reasonable indemnity (which shall not
include a surety bond), if requested. Applicants for a New Warrant under such
circumstances shall also comply with such other reasonable regulations and
procedures and pay such other reasonable third-party costs as the Company may
prescribe. If a New Warrant is requested as a result of a mutilation of this
Warrant, then the Holder shall deliver such mutilated Warrant to the Company
as
a condition precedent to the Company’s obligation to issue the New
Warrant.
8. Reservation
of Warrant Shares.
The
Company covenants that it will at all times reserve and keep available out
of
the aggregate of its authorized but unissued and otherwise unreserved Common
Stock, solely for the purpose of enabling it to issue Warrant Shares upon
exercise of this Warrant as herein provided, the number of Warrant Shares which
are then issuable and deliverable upon the exercise of this entire Warrant,
free
from preemptive rights or any other contingent purchase rights of Persons other
than the Holder (taking into account the adjustments and restrictions of Section
9). The Company covenants that all Warrant Shares so issuable and deliverable
shall, upon issuance and the payment of the applicable Exercise Price in
accordance with the terms hereof, be duly and validly authorized, issued and
fully paid and nonassessable.
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9. Certain
Adjustments.
The
Exercise Price and number of Warrant Shares issuable upon exercise of this
Warrant are subject to adjustment from time to time as set forth in this Section
9.
(a) Stock
Dividends and Splits.
If the
Company, at any time while this Warrant is outstanding, (i) pays a stock
dividend on its Common Stock or otherwise makes a distribution on any class
of
capital stock that is payable in shares of Common Stock, (ii) subdivides
outstanding shares of Common Stock into a larger number of shares, or (iii)
combines outstanding shares of Common Stock into a smaller number of shares,
then in each such case the Exercise Price shall be multiplied by a fraction
of
which the numerator shall be the number of shares of Common Stock outstanding
immediately before such event and of which the denominator shall be the number
of shares of Common Stock outstanding immediately after such event. Any
adjustment made pursuant to clause (i) of this paragraph shall become effective
immediately after the record date for the determination of stockholders entitled
to receive such dividend or distribution, and any adjustment pursuant to clause
(ii) or (iii) of this paragraph shall become effective immediately after the
effective date of such subdivision or combination.
(b) Fundamental
Transactions.
If, at
any time while this Warrant is outstanding there is a Fundamental Transaction,
then the Holder shall have the right thereafter to receive, upon exercise of
this Warrant, the same amount and kind of securities, cash or property as it
would have been entitled to receive upon the occurrence of such Fundamental
Transaction if it had been, immediately prior to such Fundamental Transaction,
the holder of the number of Warrant Shares then issuable upon exercise in full
of this Warrant (the "Alternate
Consideration").
For
purposes of any such exercise, the determination of the Exercise Price shall
be
appropriately adjusted to apply to such Alternate Consideration based on the
amount of Alternate Consideration issuable in respect of one share of Common
Stock in such Fundamental Transaction, and the Company shall apportion the
Exercise Price among the Alternate Consideration in a reasonable manner
reflecting the relative value of any different components of the Alternate
Consideration. If holders of Common Stock are given any choice as to the
securities, cash or property to be received in a Fundamental Transaction, then
the Holder shall be given the same choice as to the Alternate Consideration
it
receives upon any exercise of this Warrant following such Fundamental
Transaction. At the Holder's request, any successor to the Company or surviving
entity in such Fundamental Transaction shall issue to the Holder a new warrant
substantially in the form of this Warrant and consistent with the foregoing
provisions and evidencing the Holder's right to purchase the Alternate
Consideration for the aggregate Exercise Price upon exercise thereof. The terms
of any agreement pursuant to which a Fundamental Transaction is effected shall
include terms requiring any such successor or surviving entity to comply with
the provisions of this paragraph (b) and insuring that the Warrant (or any
such
replacement security) will be similarly adjusted upon any subsequent transaction
analogous to a Fundamental Transaction.
5
(c) Subsequent
Equity Sales.
(i) If
at any
time while this Warrant is outstanding, the Company or any subsidiary thereof,
as applicable, shall issue or enter into any agreement or understanding to
issue
shares of Common Stock or Common Stock Equivalents entitling any Person to
acquire shares of Common Stock, at a price per share less than the Exercise
Price (if the holder of the Common Stock or Common Stock Equivalent so issued
shall at any time, whether by operation of purchase price adjustments, reset
provisions, floating conversion, exercise or exchange prices or otherwise,
or
due to warrants, options or rights issued in connection with such issuance,
be
entitled to receive shares of Common Stock at a price less than the Exercise
Price, such issuance shall be deemed to have occurred for less than the Exercise
Price), then, the Exercise Price shall automatically be reduced to equal such
lower price. Such adjustment shall be made whenever such Common Stock or Common
Stock Equivalents are issued. The Company shall notify the Holder in writing,
no
later than the Trading Day following the issuance of any Common Stock or Common
Stock Equivalent subject to this section, indicating therein the applicable
issuance price, or of applicable reset price, exchange price, conversion price
and other pricing terms, but failure to provide such notice will not delay
or
affect the reduction of the Exercise Price. If, while this Warrant is
outstanding, the Company enters into any agreement or understanding to issue
or
sell securities that would trigger an adjustment to the Exercise Price, then
notwithstanding the fact that such actual issuance of Common Stock or Common
Stock Equivalents occurs after the term of the Warrant, such issuance will
be
treated as if it had occurred prior to the expiration of the Warrant term.
(ii) For
purposes of this subsection 9(c), the following subsections (c)(ii)(l) to
(c)(ii)(6) shall also be applicable:
(1) Issuance
of Rights or Options.
If at
any time the Company shall in any manner grant (directly and not by assumption
in a merger or otherwise) any warrants or other rights to subscribe for or
to
purchase, or any options for the purchase of, Common Stock or any stock or
security convertible into or exchangeable for Common Stock (such warrants,
rights or options being called “Options”
and such
convertible or exchangeable stock or securities being called “Convertible
Securities”)
whether
or not such Options or the right to convert or exchange any such Convertible
Securities are immediately exercisable, and the price per share for which Common
Stock is issuable upon the exercise of such Options or upon the conversion
or
exchange of such Convertible Securities (determined by dividing (i) the sum
(which sum shall constitute the applicable consideration) of (x) the total
amount, if any, received or receivable by the Company as consideration for
the
granting of such Options, plus (y) the aggregate amount of additional
consideration payable to the Company upon the exercise of all such Options,
plus
(z), in the case of such Options which relate to Convertible Securities, the
aggregate amount of additional consideration, if any, payable upon the issue
or
sale of such Convertible Securities and upon the conversion or exchange thereof,
by (ii) the total maximum number of shares of Common Stock issuable upon the
exercise of such Options or upon the conversion or exchange of all such
Convertible Securities issuable upon the exercise of such Options) shall be
less
than the Exercise Price in effect immediately prior to the time of the granting
of such Options, then the total number of shares of Common Stock issuable upon
the exercise of such Options or upon conversion or exchange of the total amount
of such Convertible Securities issuable upon the exercise of such Options shall
be deemed to have been issued for such price per share as of the date of
granting of such Options or the issuance of such Convertible Securities and
thereafter shall be deemed to be outstanding for purposes of adjusting the
Exercise Price. Except as otherwise provided in subsection 9(c)(ii)(3), no
adjustment of the Exercise Price shall be made upon the actual issue of such
Common Stock or of such Convertible Securities upon exercise of such Options
or
upon the actual issue of such Common Stock upon conversion or exchange of such
Convertible Securities.
6
(2) Issuance
of Convertible Securities.
If the
Company shall in any manner issue (directly and not by assumption in a merger
or
otherwise) or sell any Convertible Securities, whether or not the rights to
exchange or convert any such Convertible Securities are immediately exercisable,
and the price per share for which Common Stock is issuable upon such conversion
or exchange (determined by dividing (i) the sum (which sum shall constitute
the
applicable consideration) of (x) the total amount received or receivable by
the
Company as consideration for the issue or sale of such Convertible Securities,
plus (y) the aggregate amount of additional consideration, if any, payable
to
the Company upon the conversion or exchange thereof, by (ii) the total number
of
shares of Common Stock issuable upon the conversion or exchange of all such
Convertible Securities) shall be less than the Exercise Price in effect
immediately prior to the time of such issue or sale, then the total maximum
number of shares of Common Stock issuable upon conversion or exchange of all
such Convertible Securities shall be deemed to have been issued for such price
per share as of the date of the issue or sale of such Convertible Securities
and
thereafter shall be deemed to be outstanding for purposes of adjusting the
Exercise Price, provided that (a) except as otherwise provided in subsection
9(c)(ii)(3), no adjustment of the Exercise Price shall be made upon the actual
issuance of such Common Stock upon conversion or exchange of such Convertible
Securities and (b) no further adjustment of the Exercise Price shall be made
by
reason of the issue or sale of Convertible Securities upon exercise of any
Options to purchase any such Convertible Securities for which adjustments of
the
Exercise Price have been made pursuant to the other provisions of subsection
9(c).
(3) Change
in Option Price or Conversion Rate.
Upon
the happening of any of the following events, namely, if the purchase price
provided for in any Option referred to in subsection 9(c)(ii)(l) hereof, the
additional consideration, if any, payable upon the conversion or exchange of
any
Convertible Securities referred to in subsections 9(c)(ii)(l) or 9(c)(ii)(2),
or
the rate at which Convertible Securities referred to in subsections 9(c)(ii)(l)
or 9(c)(ii)(2) are convertible into or exchangeable for Common Stock shall
change at any time (including, but not limited to, changes under or by reason
of
provisions designed to protect against dilution), the Exercise Price in effect
at the time of such event shall forthwith be readjusted to the Exercise Price
which would have been in effect at such time had such Options or Convertible
Securities still outstanding provided for such changed purchase price,
additional consideration or conversion rate, as the case may be, at the time
initially granted, issued or sold. On the termination of any Option for which
any adjustment was made pursuant to this subsection 9(c) or any right to convert
or exchange Convertible Securities for which any adjustment was made pursuant
to
this subsection 9(c) (including without limitation upon the redemption or
purchase for consideration of such Convertible Securities by the Company),
the
Exercise Price then in effect hereunder shall forthwith be changed to the
Exercise Price which would have been in effect at the time of such termination
had such Option or Convertible Securities, to the extent outstanding immediately
prior to such termination, never been issued.
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(4) Stock
Dividends.
Subject
to the provisions of this Section 9(c), if the Company shall declare a dividend
or make any other distribution upon any stock of the Company (other than the
Common Stock) payable in Common Stock, Options or Convertible Securities, then
any Common Stock, Options or Convertible Securities, as the case may be,
issuable in payment of such dividend or distribution shall be deemed to have
been issued or sold without consideration.
(5) Consideration
for Stock.
If any
shares of Common Stock, Options or Convertible Securities shall be issued or
sold for cash, the consideration received therefor shall be deemed to be the
net
amount received by the Company therefor, after deduction therefrom of any
expenses incurred or any underwriting commissions or concessions paid or allowed
by the Company in connection therewith. If any shares of Common Stock, Options
or Convertible Securities shall be issued or sold for a consideration other
than
cash, the amount of the consideration other than cash received by the Company
shall be deemed to be the fair value of such consideration as determined in
good
faith by the Board of Directors of the Company, after deduction of any expenses
incurred or any underwriting commissions or concessions paid or allowed by
the
Company in connection therewith. If any Options shall be issued in connection
with the issue and sale of other securities of the Company, together comprising
one integral transaction in which no specific consideration is allocated to
such
Options by the parties thereto, such Options shall be deemed to have been issued
for such consideration as determined in good faith by the Board of Directors
of
the Company. If Common Stock, Options or Convertible Securities shall be issued
or sold by the Company and, in connection therewith, other Options or
Convertible Securities (the “Additional
Rights”)
are
issued, then the consideration received or deemed to be received by the Company
shall be reduced by the fair market value of the Additional Rights (as
determined using the Black-Scholes option pricing model or another method
mutually agreed to by the Company and the Holder). The Board of Directors of
the
Company shall respond promptly, in writing, to an inquiry by the Holders as
to
the fair market value of the Additional Rights. In the event that the Board
of
Directors of the Company and the Holders are unable to agree upon the fair
market value of the Additional Rights, the Company and the Holders shall jointly
select an appraiser, who is experienced in such matters. The decision of such
appraiser shall be final and conclusive, and the cost of such appraiser shall
be
borne evenly by the Company and the Holder.
(6) Record
Date.
If the
Company shall take a record of the holders of its Common Stock for the purpose
of entitling them (i) to receive a dividend or other distribution payable in
Common Stock, Options or Convertible Securities or (ii) to subscribe for or
purchase Common Stock, Options or Convertible Securities, then such record
date
shall be deemed to be the date of the issue or sale of the shares of Common
Stock deemed to have been issued or sold upon the declaration of such dividend
or the making of such other distribution or the date of the granting of such
right of subscription or purchase, as the case may be.
(iii) Notwithstanding
the foregoing, no adjustment will be made under this paragraph (c) in respect
of: (i) the issuance of securities upon the exercise or conversion of any Common
Stock or Common Stock Equivalents issued by the Company prior to the date hereof
(but will apply to any amendments, modifications and reissuances thereof),
or
(ii) the grant of options or warrants, or the issuance of additional securities,
under any duly authorized Company stock option, stock incentive plan, restricted
stock plan or stock purchase plan whether now existing or hereafter approved
by
the Company and its stockholders (as applicable) in the future (but not as
to
any amendments or other modifications to the exercise price set forth therein)
and the issuance of Common Stock in respect thereof.
8
(d) Number
of Warrant Shares.
Simultaneously with any adjustment to the Exercise Price pursuant to this
Section 9, the number of Warrant Shares that may be purchased upon exercise
of
this Warrant shall be increased or decreased proportionately, so that after
such
adjustment the aggregate Exercise Price payable hereunder for the adjusted
number of Warrant Shares shall be the same as the aggregate Exercise Price
in
effect immediately prior to such adjustment.
(e) Calculations.
All
calculations under this Section 9 shall be made to the nearest cent or the
nearest 1/100th
of a
share, as applicable. The number of shares of Common Stock outstanding at any
given time shall not include shares owned or held by or for the account of
the
Company, and the disposition of any such shares shall be considered an issue
or
sale of Common Stock.
(f) Notice
of Adjustments.
Upon
the occurrence of each adjustment pursuant to this Section 9, the Company at
its
expense will promptly compute such adjustment in accordance with the terms
of
this Warrant and prepare a certificate setting forth such adjustment, including
a statement of the adjusted Exercise Price and adjusted number or type of
Warrant Shares or other securities issuable upon exercise of this Warrant (as
applicable), describing the transactions giving rise to such adjustments and
showing in detail the facts upon which such adjustment is based. Upon written
request, the Company will promptly deliver a copy of each such certificate
to
the Holder and to the Company's Transfer Agent.
(g) Notice
of Corporate Events.
If the
Company (i) declares a dividend or any other distribution of cash, securities
or
other property in respect of its Common Stock, including without limitation
any
granting of rights or warrants to subscribe for or purchase any capital stock
of
the Company or any Subsidiary, (ii) authorizes or approves, enters into any
agreement contemplating or solicits stockholder approval for any Fundamental
Transaction or (iii) authorizes the voluntary dissolution, liquidation or
winding up of the affairs of the Company, then the Company shall deliver to
the
Holder a notice describing the material terms and conditions of such transaction
(but only to the extent such disclosure would not result in the dissemination
of
material, non-public information to the Holder) at least 10 calendar days prior
to the applicable record or effective date on which a Person would need to
hold
Common Stock in order to participate in or vote with respect to such
transaction, and the Company will take all steps reasonably necessary in order
to insure that the Holder is given the practical opportunity to exercise this
Warrant prior to such time so as to participate in or vote with respect to
such
transaction; provided, however, that the failure to deliver such notice or
any
defect therein shall not affect the validity of the corporate action required
to
be described in such notice.
9
10. Payment
of Exercise Price.
The
Holder may pay the Exercise Price in one of the following manners:
(a) Cash
Exercise.
The
Holder may deliver immediately available funds; or
(b) Cashless
Exercise.
If an
Exercise Notice is delivered at a time when a registration statement permitting
the Holder to resell the Warrant Shares is not then effective or the prospectus
forming a part thereof is not then available to the Holder for the resale of
the
Warrant Shares, then the Holder may notify the Company in an Exercise Notice
of
its election to utilize cashless exercise, in which event the Company shall
issue to the Holder the number of Warrant Shares determined as
follows:
X
= Y
[(A-B)/A]
where:
X
= the
number of Warrant Shares to be issued to the Holder.
Y
= the
number of Warrant Shares with respect to which this Warrant is being
exercised.
A
= the
average of the closing prices for the five Trading Days immediately prior to
(but not including) the Exercise Date.
B
= the
Exercise Price.
For
purposes of Rule 144 promulgated under the Securities Act, it is intended,
understood and acknowledged that the Warrant Shares issued in a cashless
exercise transaction shall be deemed to have been acquired by the Holder, and
the holding period for the Warrant Shares shall be deemed to have commenced,
on
the date this Warrant was originally issued.
11. Limitations
on Exercise.
(a) Notwithstanding
anything to the contrary contained herein, the number of Warrant Shares that
may
be acquired by the Holder upon any exercise of this Warrant (or otherwise in
respect hereof) shall be limited to the extent necessary to insure that,
following such exercise (or other issuance), the total number of shares of
Common Stock then beneficially owned by such Holder and its Affiliates and
any
other Persons whose beneficial ownership of Common Stock would be aggregated
with the Holder's for purposes of Section 13(d) of the Exchange Act, does not
exceed 4.99% of the total number of issued and outstanding shares of Common
Stock (including for such purpose the shares of Common Stock issuable upon
such
exercise). For such purposes, beneficial ownership shall be determined in
accordance with Section 13(d) of the Exchange Act and the rules and regulations
promulgated thereunder. This provision shall not restrict the number of shares
of Common Stock which a Holder may receive or beneficially own in order to
determine the amount of securities or other consideration that such Holder
may
receive in the event of a Fundamental Transaction as contemplated in Section
9
of this Warrant. [By written notice to the Company, an Investor may waive the
provisions of this Section 11(a) as to itself but any such waiver will not
be
effective until the 61st
day
after delivery thereof and such waiver shall have no effect on any other
Investor.] [This restriction may not be waived, and notwithstanding anything
to
the contrary in any Transaction Document, may not be amended by agreement of
the
parties. Notwithstanding anything to the contrary contained in this Warrant
or
in any other Transaction Document, (a) no term of this Section may be waived
by
any party, nor amended such that the threshold percentage of ownership would
be
directly or indirectly increased, (b) no amendment or modification to any
Transaction Document may be made such that it would have the effect of modifying
or waiving any term of this Section in violation of this restriction, (c) this
restriction runs with the Warrant and may not be modified or waived by any
subsequent holder hereof and (d) any attempted waiver, modification or amendment
of this Section will be void ab initio.]1
10
(b) Notwithstanding
anything to the contrary contained herein, the number of Warrant Shares that
may
be acquired by the Holder upon any exercise of this Warrant (or otherwise in
respect hereof) shall be limited to the extent necessary to insure that,
following such exercise (or other issuance), the total number of shares of
Common Stock then beneficially owned by such Holder and its Affiliates and
any
other Persons whose beneficial ownership of Common Stock would be aggregated
with the Holder's for purposes of Section 13(d) of the Exchange Act, does not
exceed 9.99% of the total number of issued and outstanding shares of Common
Stock (including for such purpose the shares of Common Stock issuable upon
such
exercise). For such purposes, beneficial ownership shall be determined in
accordance with Section 13(d) of the Exchange Act and the rules and regulations
promulgated thereunder. This provision shall not restrict the number of shares
of Common Stock which a Holder may receive or beneficially own in order to
determine the amount of securities or other consideration that such Holder
may
receive in the event of a Fundamental Transaction as contemplated in Section
9
of this Warrant. This restriction may not be waived, and notwithstanding
anything to the contrary in any Transaction Document, may not be amended by
agreement of the parties. Notwithstanding anything to the contrary contained
in
this Warrant or in any other Transaction Document, (a) no term of this Section
may be waived by any party, nor amended such that the threshold percentage
of
ownership would be directly or indirectly increased, (b) no amendment or
modification to any Transaction Document may be made such that it would have
the
effect of modifying or waiving any term of this Section in violation of this
restriction, (c) this restriction runs with the Warrant and may not be modified
or waived by any subsequent holder hereof and (d) any attempted waiver,
modification or amendment of this Section will be void ab initio.
12. No
Fractional Shares.
No
fractional shares of Warrant Shares will be issued in connection with any
exercise of this Warrant. In lieu of any fractional shares which would,
otherwise be issuable, the Company shall pay cash equal to the product of such
fraction multiplied by the closing price of one Warrant Share as reported by
the
applicable Trading Market on the date of exercise.
13. Notices.
Any and
all notices or other communications or deliveries hereunder (including, without
limitation, any Exercise Notice) shall be in writing and shall be deemed given
and effective on the earliest of (i) the date of transmission, if such notice
or
communication is delivered via facsimile or e-mail (followed by facsimile)
at
the facsimile number or e-mail address specified in this Section prior to 5:30
p.m. (New York City time) on a Trading Day, (ii) the next Trading Day after
the
date of transmission, if such notice or communication is delivered via facsimile
or e-mail (followed by facsimile) at the facsimile number or e-mail address
specified in this Section on a day that is not a Trading Day or later than
5:30
p.m. (New York City time) on any Trading Day, (iii) the Trading Day following
the date of mailing, if sent by nationally recognized overnight courier service,
or (iv) upon actual receipt by the party to whom such notice is required to
be
given. The addresses for such communications shall be: (i) if to the Company,
to
000 Xxxxxxx Xxxxxx, 00xx
Xxxxx,
Xxx Xxxxxxxxx, Xxxxxxxxxx, 00000, Facsimile: (000) 000-0000, E-mail:
xxxxxxx@xxxxxxxxx.xxx, Attention: Xxxxxxx Xxxxxx, President, (ii) if to the
Holder, to the address, e-mail address, or facsimile number appearing on the
Warrant Register or such other address, e-mail address, or facsimile number
as
the Holder may provide to the Company in accordance with this Section or the
Purchase Agreement.
|
1
|
Non-waivability
provision to apply to certain
Investors.
|
11
14. Warrant
Agent.
The
Company shall serve as warrant agent under this Warrant. Upon 10 days' notice
to
the Holder, the Company may appoint a new warrant agent. Any corporation into
which the Company or any new warrant agent may be merged or any corporation
resulting from any consolidation to which the Company or any new warrant agent
shall be a party or any corporation to which the Company or any new warrant
agent transfers substantially all of its corporate trust or shareholders
services business shall be a successor warrant agent under this Warrant without
any further act. Any such successor warrant agent shall promptly cause notice
of
its succession as warrant agent to be mailed (by first class mail, postage
prepaid) to the Holder at the Holder's last address as shown on the Warrant
Register.
15. Miscellaneous.
(a) This
Warrant shall be binding on and inure to the benefit of the parties hereto
and
their respective successors and assigns. Subject to the preceding sentence,
nothing in this Warrant shall be construed to give to any Person other than
the
Company and the Holder any legal or equitable right, remedy or cause of action
under this Warrant. This Warrant may be amended only in writing signed by the
Company and the Holder and their successors and assigns.
(b) All
questions concerning the construction, validity, enforcement and interpretation
of this Warrant shall be governed by and construed and enforced in accordance
with the internal laws of the State of New York, without regard to the
principles of conflicts of law thereof. Each party agrees that all legal
proceedings concerning the interpretations, enforcement and defense of this
Warrant and the transactions herein contemplated (“Proceedings”)
(whether brought against a party hereto or its respective Affiliates, employees
or agents) shall be commenced exclusively in the New York Courts. Each party
hereto hereby irrevocably submits to the exclusive jurisdiction of the New
York
Courts for the adjudication of any dispute hereunder or in connection herewith
or with any transaction contemplated hereby or discussed herein, and hereby
irrevocably waives, and agrees not to assert in any Proceeding, any claim that
it is not personally subject to the jurisdiction of any New York Court, or
that
such Proceeding has been commenced in an improper or inconvenient forum. Each
party hereto hereby irrevocably waives personal service of process and consents
to process being served in any such Proceeding by mailing a copy thereof via
registered or certified mail or overnight delivery (with evidence of delivery)
to such party at the address in effect for notices to it under this Warrant
and
agrees that such service shall constitute good and sufficient service of process
and notice thereof. Nothing contained herein shall be deemed to limit in any
way
any right to serve process in any manner permitted by law. Each party hereto
hereby irrevocably waives, to the fullest extent permitted by applicable law,
any and all right to trial by jury in any legal proceeding arising out of or
relating to this Warrant or the transactions contemplated hereby. If either
party shall commence a Proceeding to enforce any provisions of this Warrant,
then the prevailing party in such Proceeding shall be reimbursed by the other
party for its attorney’s fees and other costs and expenses incurred with the
investigation, preparation and prosecution of such Proceeding.
12
(c) The
headings herein are for convenience only, do not constitute a part of this
Warrant and shall not be deemed to limit or affect any of the provisions
hereof.
(d) In
case
any one or more of the provisions of this Warrant shall be invalid or
unenforceable in any respect, the validity and enforceability of the remaining
terms and provisions of this Warrant shall not in any way be affected or
impaired thereby and the parties will attempt in good faith to agree upon a
valid and enforceable provision which shall be a commercially reasonable
substitute therefor, and upon so agreeing, shall incorporate such substitute
provision in this Warrant.
(e) Prior
to
exercise of this Warrant, the Holder hereof shall not, by reason of being a
Holder, be entitled to any rights of a stockholder with respect to the Warrant
Shares.
16. Transferability
of Warrants.
This
Warrant is separate and detachable from the Notes. Neither a forced conversion
nor redemption of the Notes shall have any effect on this Warrant.
[REMAINDER
OF XXXX INTENTIONALLY LEFT BLANK,
SIGNATURE
PAGE FOLLOWS]
13
IN
WITNESS WHEREOF, the Company has caused this Warrant to be duly executed by
its
authorized officer as of the date first indicated above.
| GOFISH CORPORATION | ||
| |
|
|
| By: | ||
|
Name: |
||
| Title: | ||
14
EXERCISE
NOTICE
GOFISH
CORPORATION
WARRANT
DATED JUNE __, 2007
The
undersigned Holder hereby irrevocably elects to purchase _____________ shares
of
Common Stock pursuant to the above referenced Warrant. Capitalized terms used
herein and not otherwise defined have the respective meanings set forth in
the
Warrant.
(1) The
undersigned Holder hereby exercises its right to purchase _________________
Warrant Shares pursuant to the Warrant.
(2) The
Holder intends that payment of the Exercise Price shall be made as (check
one):
____“Cash
Exercise” under Section 10
____“Cashless
Exercise” under Section 10
(3) If
the
holder has elected a Cash Exercise, the holder shall pay the sum of
$____________ to the Company in accordance with the terms of the
Warrant.
(4) Pursuant
to this Exercise Notice, the Company shall deliver to the holder _______________
Warrant Shares in accordance with the terms of the Warrant.
(5)
By
its
delivery of this Exercise Notice, the undersigned represents and warrants to
the
Company that (i) in giving effect to the exercise evidenced hereby the Holder
will not beneficially own in excess of the number of shares of Common Stock
(determined in accordance with Section 13(d) of the Securities Exchange Act
of
1934) permitted to be owned under Section 11 of this Warrant to which this
notice relates and (ii) it is an “accredited investor” as defined in Rule 501(a)
under the Securities Act.
|
Dated:
_____________ ,
_____
|
Name
of Holder:
|
|
|
(Print)
___________________________________
|
||
|
By:
_____________________________________
|
||
|
Name:
___________________________________
|
||
|
Title:
____________________________________
|
||
|
(Signature
must conform in all respects to name of holder as specified on the
face of
the Warrant)
|
15
Warrant
Shares Exercise Log
|
Date
|
Number
of Warrant Shares Available to be Exercised
|
Number
of Warrant Shares Exercised
|
Number
of Warrant Shares Remaining to be Exercised
|
|
|
16
GOFISH
CORPORATION
WARRANT
ORIGINALLY ISSUED June ___, 2007
WARRANT
NO. ___
FORM
OF
ASSIGNMENT
[To
be
completed and signed only upon transfer of Warrant]
FOR
VALUE
RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________ the right represented by the above-captioned
Warrant to purchase ____________ shares of Common Stock to which such Warrant
relates and appoints ________________ attorney to transfer said right on the
books of the Company with full power of substitution in the
premises.
Dated: _______________,
____
_______________________________________
(Signature
must conform in all respects to name of
xxxxxx
as
specified on the face of the Warrant)
_______________________________________
Address
of Transferee
_______________________________________
_______________________________________
In
the
presence of:
__________________________
17
