ACCESSION AGREEMENT
Exhibit
4.2
THIS
ACCESSION AGREEMENT
(this
“Accession
Agreement”),
is
made as of June 30, 2008 by and among GoFish Corporation, a Nevada corporation
(the “Company”),
and
the subscribers identified on the signature page hereto (each a “Second
Closing Subscriber”
and
collectively the “Second
Closing Subscribers”).
WHEREAS,
the
Company and certain subscribers (the “Initial
Closing Subscribers”)
executed and delivered that certain Subscription Agreement, dated as of April
18, 2008, a copy of which is attached hereto as Exhibit
A (the
“Subscription
Agreement”);
WHEREAS,
on April
18, 2008, upon the terms and subject to the conditions contained in the
Subscription Agreement, in the Initial Closing, the Company issued and sold
to
the Initial Closing Subscribers, as provided therein, and the Initial Closing
Subscribers, in the aggregate, purchased for $1,500,000: (i) $1,764,705.88
in
principal amount of Notes and (ii) Warrants to purchase, in the aggregate,
1,719,309 shares of Common Stock;
WHEREAS,
pursuant
to the terms of the Subscription Agreement, an additional closing may take
place
(“Second
Closing”),
the
subscribers in which are subject to the approval of the Lead Investor, except
that such approval is not required for (i) subscriptions, in the aggregate,
for
a Purchase Price of up to $500,000, and (ii) Purchase Price paid by directors,
employees and Strategic Investors; and
WHEREAS,
the
Company and the Second Closing Subscribers desire that, upon substantially
the
same terms and conditions as set forth in the Subscription Agreement, in a
Second Closing, the Company issue and sell to the Second Closing Subscribers,
as
provided therein, and the Second Closing Subscribers, in the aggregate, shall
purchase for up to $2,000,000: (i) up to $2,352,941.18 in principal amount
of
convertible promissory notes of the Company, in the form annexed as Exhibit
A to
the Subscription Agreement, which notes are convertible into shares of Common
Stock at a fixed per share conversion price of $2.06, subject to adjustment
as
set forth in this Subscription Agreement and in such note and (ii) share
purchase warrants, in the form annexed as Exhibit B to the Subscription
Agreement, to purchase, in the aggregate, up to 2,284,409 shares of Common
Stock
and that the Second Closing Subscribers become “Subscribers” under the terms of
the Subscription Agreement, and be bound by the terms and obligations set forth
in the Subscription Agreement, and be entitled to the same rights and benefits
as the Initial Closing Subscribers under the Subscription Agreement.
NOW,
THEREFORE,
in
consideration of the mutual covenants and other agreements contained in the
Subscription Agreement and this Accession Agreement, the Company and the Second
Closing Subscribers hereby agree as follows:
1. Definitions.
Any
capitalized term used in this Accession Agreement but not otherwise defined
shall have the meaning ascribed to such term in the Subscription
Agreement.
2. Closing
Date.
The
closing date for the Second Closing shall be June 30, 2008 (the “Second Closing
Date”).
On
the Second Closing Date, the Second Closing Subscriber’s respective portion of
the Purchase Price shall be transmitted by wire transfer or otherwise credited
to or for the benefit of the Company. The Maturity Date (as defined in the
Note), the Expiration Date (as defined in the Warrant) and all time effective
clauses in the Transaction Documents (as defined in Section 5(c) of the
Subscription Agreement) in connection with the Second Closing shall be the
same
as such dates and time periods applicable to the Initial Closing.
3. Notes.
Subject
to the satisfaction or waiver of the terms and conditions of the Subscription
Agreement and this Accession Agreement, on the Second Closing Date, each Second
Closing Subscriber shall purchase and the Company shall sell to each Second
Closing Subscriber a Note in the Principal Amount designated on the signature
page hereto for such Second Closing Subscriber’s respective portion of the
Purchase Price indicated thereon, and a Warrant as described in Section 3 of
the
Subscription Agreement. Each Second Closing Subscriber’s respective portion of
the Purchase Price for such Second Closing Subscriber’s Note and Warrant will be
determined by multiplying the Principal Amount of such Second Closing
Subscriber’s Note by .85.
4. Warrants.
Subject
to the satisfaction or waiver of the terms and conditions of the Subscription
Agreement and this Accession Agreement, on the Second Closing Date, the Company
will issue and deliver a Warrant to each Second Closing Subscriber. The
respective number of Warrant Shares available for purchase under each such
Warrant shall equal the quotient of (a) such Second Closing Subscriber’s
respective portion of the Purchase Price indicated on the signature page hereto,
divided by (b) one-half of the Conversion Price of the Note to be issued to
such
Second Closing Subscriber under the Subscription Agreement and this Accession
Agreement. The number of Warrant Shares eligible for purchase by each Second
Closing Subscriber is set forth in the signature page of this Accession
Agreement. The exercise price to acquire a Warrant Share upon exercise of a
Warrant shall be $1.75 per share. Each Warrant shall, subject to the terms
and
conditions thereof, be exercisable commencing 181 days after the issue date
thereof and until April 18, 2013. Each holder of a Warrant is granted the
registration rights for the Warrant Shares underlying such Warrant set forth
in
Section 11.1 of the Subscription Agreement. The Warrant exercise price and
number of Warrant Shares issuable upon exercise of the Warrants shall be
equitably adjusted to offset the effect of stock splits, stock dividends, and
similar events, and as otherwise described in the Warrant.
5. Agreement
to be Bound by the Subscription Agreement.
Each
Second Closing Subscriber severally and not jointly shall be deemed to become
a
“Subscriber” under the Subscription Agreement, and, as such, hereby agrees to be
bound by the terms and conditions of, and shall be entitled to the rights and
benefits under the Subscription Agreement.
6. Company
Representations and Warranties.
The
Company represents that each of the representations and warranties contained
in
Section 5 of the Subscription Agreement are true and correct as of the date
hereof, except as described on Schedule
I
hereto.
7. Second
Closing Subscriber’s
Representations and Warranties.
As of
the date hereof and as of the Second Closing Date, each Second Closing
Subscriber severally and not jointly hereby affirms each of the representations,
warranties and agreements set forth in Section 4 of the Subscription Agreement
only as to such Second Closing Subscriber.
8. Counterparts/Execution.
This
Accession Agreement may be executed in any number of counterparts and by the
different signatories hereto on separate counterparts, each of which, when
so
executed, shall be deemed an original, but all such counterparts shall
constitute but one and the same instrument. This Accession Agreement may be
executed by facsimile signature and delivered by facsimile
transmission.
9. Law
Governing this Accession Agreement.
This
Accession Agreement shall be governed by and construed in accordance with the
laws of the State of New York without regard to conflicts of laws principles
that would result in the application of the substantive laws of another
jurisdiction.
SIGNATURE
PAGE TO ACCESSION AGREEMENT
Please
acknowledge your acceptance of the foregoing Accession Agreement by signing
and
returning a copy to the undersigned whereupon it shall become a binding
agreement between us.
|
GOFISH
CORPORATION
a
Nevada corporation
|
||
| |
|
|
| By: | /s/ Xxxxxxx Xxxxxx | |
|
Name: Xxxxxxx Xxxxxx |
||
| Title: President | ||
| Dated: June 30, 2008 | ||
|
SECOND
CLOSING SUBSCRIBER
|
PURCHASE
PRICE
(CASH)
|
PRINCIPAL
AMOUNT
OF
NOTE
|
WARRANTS
|
|
[NAME
OF SECOND CLOSING SUBSCRIBER]
______________________________________
(Signature)
By:
|
