REGISTRATION RIGHTS AGREEMENT
This
Registration Rights Agreement (this “Agreement”)
is
made and entered into as of ______________ __, 2007 (the “Effective
Date”)
between GoFish Corporation, a Nevada corporation (the “Company”),
and
the parties set forth on the signature page and Exhibit
A
hereto
(each, an “Offeree”
and
collectively, the “Offerees”).
RECITALS:
WHEREAS,
the Company, BM Acquisition Corp Inc., a Delaware corporation and a wholly
owned
subsidiary of the Company (the “Transitory
Subsidiary”),
Bolt,
Inc., a/k/a Bolt Media, Inc., a Delaware Corporation (“Bolt”),
and
the party identified therein as the Indemnification Representative have entered
into an Agreement and Plan of Merger (the “Merger
Agreement”)
dated
as of February 11, 2007, pursuant to which Bolt will merge with and into
Transitory Subsidiary, with Transitory Subsidiary remaining as the surviving
entity and a wholly-owned subsidiary of the Company (the “Merger,”
the
date such Merger becomes effective pursuant to the Merger Agreement hereinafter
referred to as the “Merger Effective
Time”);
WHEREAS,
as a consideration of the Merger, in compliance with the Securities Act of
1933,
as amended (the “Securities
Act”),
Company shall convert each share of Bolt’s Common Stock, $0.001 par value per
share, issued and outstanding immediately prior to the Merger Effective Time,
into a certain number of shares of Company’s Common Stock, in the amounts and
subject to the terms and conditions set forth in the Merger Agreement
(hereinafter collectively, the “Offering”);
and
WHEREAS,
the Offerees shall execute and deliver this Agreement, pursuant to which the
Company will provide certain registration rights related to the shares of Common
Stock on the terms set forth herein.
NOW,
THEREFORE,
in
consideration of the mutual promises, representations, warranties, covenants,
and conditions set forth herein, the parties mutually agree as follows:
| 1. |
Certain
Definitions.
As used in this Agreement, the following terms shall have the following
respective meanings:
|
“Approved
Market”
means
the NASD Over-The-Counter Bulletin Board, the Nasdaq Global Select Market,
Nasdaq Global Market, the
Nasdaq Capital Market, the New York Stock Exchange, Inc. or the American Stock
Exchange, Inc.
“Blackout
Period”
means,
with respect to a registration, a period, in each case commencing on the day
immediately after the Company notifies the Offerees that, based upon advice
from
legal counsel, they are required, because of the occurrence of an event of
the
kind described in Section 4(g) hereof, to suspend offers and sales of
Registrable Securities during which the Company, in the good faith judgment
of
its board of directors, determines (because of the existence of, or in
anticipation of, any acquisition, financing activity, or other transaction
involving the Company, or the unavailability for reasons beyond the Company’s
control of any required financial statements, disclosure of information which
is
in its best interest not to publicly disclose, or any other event or condition
of similar significance to the Company) that the registration and distribution
of the Registrable Securities to be covered by such Stockholder Registration
Statement, if any, would be seriously detrimental to the Company and its
stockholders and ending on the earlier of (1) the date upon which the material
non-public information commencing the Blackout Period is disclosed to the public
or ceases to be material and (2) such time as the Company notifies the selling
Holders that the Company will no longer delay such filing of the Stockholder
Registration Statement, recommence taking steps to make such Stockholder
Registration Statement effective, or allow sales pursuant to such Stockholder
Registration Statement to resume; provided,
that (a)
the Company shall limit its use of Blackout Periods, in the aggregate, to 30
Trading Days in any 12-month period and (b) no Blackout Period may commence
sooner than 60 days after the end of a prior Blackout Period.
“Business
Day”
means
any day of the year, other than a Saturday, Sunday, or other day on which the
Commission is required or authorized to close.
“Commission”
means
the Securities and Exchange Commission or any other federal agency at the time
administering the Securities Act of 1933.
“Common
Stock”
means
the common stock, par value $0.001 per share, of the Company which shall be
issued pursuant to the Merger Agreement, and any and all shares of capital
stock
or other equity securities of: (i) the Company which are added to or exchanged
or substituted for the Common Stock by reason of the declaration of any stock
dividend or stock split, the issuance of any distribution or the
reclassification, readjustment, recapitalization or other such modification
of
the capital structure of the Company; and (ii) any other corporation, now or
hereafter organized under the laws of any state or other governmental authority,
with which the Company is merged, which results from any consolidation or
reorganization to which the Company is a party, or to which is sold all or
substantially all of the shares or assets of the Company, if immediately after
such merger, consolidation, reorganization or sale, the Company or the
stockholders of the Company own equity securities having in the aggregate more
than 50% of the total voting power of such other corporation.
“Exchange
Act”
means
the Securities Exchange Act of 1934, as amended, and the rules and regulations
of the Commission promulgated thereunder.
“Family
Member”
means
(a) with respect to any individual, such individual’s spouse, any descendants
(whether natural or adopted), any trust all of the beneficial interests of
which
are owned by any of such individuals or by any of such individuals together
with
any organization described in Section 501(c)(3) of the Internal Revenue Code
of
1986, as amended, the estate of any such individual, and any corporation,
association, partnership or limited liability company all of the equity
interests of which are owned by those above described individuals, trusts or
organizations and (b) with respect to any trust, the owners of the beneficial
interests of such trust.
“Holder”
means
each Offeree or any of such Offeree’s respective successors and Permitted
Assignees who acquire rights in accordance with this Agreement with respect
to
the Registrable Securities directly or indirectly from a Offeree or from any
Permitted Assignee.
2
“Majority
Holders”
means
at any time Holders representing a majority of the then outstanding Registrable
Securities held by Offerees.
“Permitted
Assignee”
means
(a) with respect to a partnership, its partners or former partners in
accordance with their partnership interests, (b) with respect to a
corporation, its stockholders in accordance with their interest in the
corporation, (c) with respect to a limited liability company, its members
or former members in accordance with their interest in the limited liability
company, (d) with respect to an individual party, any Family Member of such
party, (e) an entity that is controlled by, controls, or is under common control
with a transferor or (f) a party to this Agreement.
“Piggyback
Registration”
means,
in any registration of Common Stock as set forth in Section 3(c), the ability
of
holders of Common Stock to include Registrable Securities in such registration.
The
terms
“register,
“
“registered,
“
and
“registration”
refer
to a registration effected by preparing and filing a registration statement
in
compliance with the Securities Act, and the declaration or ordering of the
effectiveness of such registration statement.
“Registrable
Securities”
means
the shares of Common Stock, offered and issuable to each Offeree pursuant to
the
Merger Agreement.
“Rule
144”
means
Rule 144 promulgated by the Commission under the Securities Act.
“SEC
Effective Date”
means
the date the Registration Statement is declared effective by the
Commission.
“Trading
Day”
means
any day on which the national securities exchange, the NASD Over the Counter
Bulletin Board or such other securities market or quotation system, which at
the
time constitutes the principal securities market for the Common Stock, is open
for general trading of securities.
2. Term.
The
registration rights provided by this Agreement shall terminate and be of
no
further force and effect upon the earlier of (a) seven (7) years from the
Effective Date or (b) as to any Holder, when all shares of Common Stock issuable
or issued upon conversion of the Shares held by and issuable to such Holder
may
be sold pursuant to Rule 144 of the Securities Act during any ninety (90)
day
period.
| 3. |
Registration.
|
(a) Demand
Registration.
Upon
the written request of the Majority Holders of the Registrable Securities
commencing eleven months after the Closing Date, the Company shall file with
the
SEC, a registration statement on Form SB-2 (or any successor form thereto),
or
in the event that Form SB-2 is not then available for the registration of
securities of the Company, Form S-1, covering the resale to the public by
the
Holders of the Registrable Securities (the “Stockholder
Registration Statement”).
The
Company shall use its best efforts to cause the Stockholder Registration
Statement to be declared effective by the SEC as soon as practicable. The
Company shall cause the Stockholder Registration Statement to remain effective
until the second anniversary of the Closing Date or such shorter time ending
when all of the Registrable Securities covered by the Stockholder Registration
Statement have been sold pursuant thereto, (the “Effectiveness
Period”).
3
(b) Limitations
on Registration Rights.
(i) The
Company may, by written notice to the Holders, (i) delay the filing or
effectiveness of the Stockholder Registration Statement or (ii) suspend the
Stockholder Registration Statement after effectiveness and require that the
Holders immediately cease sales of shares pursuant to the Stockholder
Registration Statement, in the event that (A) the Company files a registration
statement (other than a registration statement on Form S-8 or its successor
form) with the SEC for a public offering of its securities or (B) the Company
is
engaged in any activity or transaction or preparations or negotiations for
any
activity or transaction that the Company desires to keep confidential for
business reasons, if the Company determines in good faith, based on the advice
of legal counsel, that the public disclosure requirements imposed on the
Company
under the Securities Act in connection with the Stockholder Registration
Statement would require disclosure of such activity, transaction, preparations
or negotiations.
(ii) If
the Company delays or suspends the Stockholder Registration Statement or
requires the Holders to cease sales of shares pursuant to paragraph (a) above,
the Company shall, as promptly as practicable following the termination of
the
circumstance which entitled the Company to do so, take such actions as may
be
necessary to file or reinstate the effectiveness of the Stockholder Registration
Statement and/or give written notice to all Holders authorizing them to resume
sales pursuant to the Stockholder Registration Statement. If as a result
thereof
the prospectus included in the Stockholder Registration Statement has been
amended to comply with the requirements of the Securities Act, the Company
shall
enclose such revised prospectus with the notice to Holders, and the Holders
shall make no offers or sales of shares pursuant to the Stockholder Registration
Statement other than by means of such revised prospectus.
| (c) |
Resale
Shelf Registration Statement.
|
(i) Within
thirty (30) days following the earlier to occur of (i) the date that the
Company
qualifies for the use of Form S-3 and (ii) January 1, 2009, the Company shall
file with the Commission a registration statement (the “Shelf Registration
Statement”) relating to the offer and sale of all Registrable Securities by the
Holders to the public, from time to time, on a delayed or continuous basis
pursuant to Rule 415 under the Securities Act (subject to any Blackout
Period(s)). The Company shall use its best efforts to cause the Shelf
Registration Statement to be declared effective by the Commission as soon
as
practicable after the filing thereof with the Commission. The Shelf Registration
Statement shall specify the intended methods of distribution of the subject
Registrable Securities, which in no event shall include underwritten offerings,
whether on a firm commitment or best efforts basis.
(ii) The
Company shall (i) cause the Shelf Registration Statement to include a resale
prospectus intended to permit each Holder to sell, at such Holder’s election,
all or part of the Registrable Securities held by such Holder without
restriction but in accordance with the intended methods of distribution set
forth therein, (ii) prepare and file with the Commission such supplements,
amendments and post-effective amendments to the Shelf Registration Statement
as
may be necessary to keep the Shelf Registration Statement continuously effective
(subject to any Blackout Period(s)) until April 30, 2009 (the “Required
Period”), and (iii) use its efforts to cause the resale prospectus to be
supplemented by any required prospectus supplement (subject to any Blackout
Period(s)) during the Required Period; provided, however, that with respect
to
Registrable Securities registered pursuant to such Shelf Registration Statement,
each Holder agrees that it will not enter into any transaction for the sale
of
any Registrable Securities pursuant to such registration statement during
the
time after the furnishing of the Company’s notice that the Company is preparing
a supplement to or an amendment of such resale prospectus or Shelf Registration
Statement and until the filing and effectiveness thereof.
4
(d) Form
S-3 Registration.
In case
the Company shall receive from any Holder a written request or requests that
the
Company effect a registration on Form S-3 (or any successor to Form S-3)
or any
similar short-form registration statement with respect to all or a part of
the
Registrable Securities owned by such Holder or Holders (a “Form S-3
Registration”), the Company will:
(i) promptly
give written notice of the proposed registration to all other Holders;
and
(ii) as
soon as practicable, prepare and file and use its best efforts to cause to
become effective such registration statement as would permit or facilitate
the
sale and distribution from time to time, of all or such portion of such Holder’s
or Holders’ Registrable Securities as are specified in such request, together
with all or such portion of the Registrable Securities of any other Holder
or
Holders joining in such request as are specified in a written request given
within fifteen (15) days after receipt of such written notice from the Company,
on a delayed or continuous basis pursuant to Rule 415 under the Securities
Act
(subject to any S-3 Suspension Period(s) referred to below); provided, however,
that the Company shall not be obligated to effect any such registrations
pursuant to this Section 3(d):
(1) if
Form
S-3 is not available for such offering by the Holders;
(2) if
the
Holders, together with the holders of any other securities of the Company
entitled to inclusion in such registration, propose to sell Registrable
Securities and such other securities (if any) at an aggregate price to the
public of less than $1,000,000);
(3) if
within
thirty (30) days of receipt of a written request from any Holder or Holders
pursuant to this Section 3(d), the Company gives notice to such Holder or
Holders of the Company’s intention to make a public offering within ninety (90)
days, other than pursuant to a registration statement on Forms X-0, X-0 or
another form not available for registering the Registrable Securities for sale
to the public;
5
(4) if
the
Company shall furnish to the Investors a certificate signed by the Chairman
of
the Board stating that in the good faith judgment of the Board, it would be
seriously detrimental to the Company and its stockholders for such Form S-3
registration to be effected at such time, in which event the Company shall
have
the right to defer the filing of the Form S-3 registration statement for a
period of not more than ninety (90) days after receipt of the request of the
Holder or Holders under this Section 3(d); provided, that such right to delay
a
request shall be exercised by the Company not more than once in any twelve
(12)
month period; or
(5) if
the
Company has already effected two (2) registrations on Form S-3 for the Holders
pursuant to this Section 3(d).
(iii) Subject
to the foregoing, the Company shall file a Form S-3 registration statement
covering the Registrable Securities and other securities so requested to
be
registered as soon as practicable after receipt of the requests of the Holders.
Registrations effected pursuant to this Section 3(d) shall not be counted
as a
demand for registration effected pursuant to Section 3(a). Each Form S-3
Registration Statement shall specify the intended methods of distribution
of the
subject Registrable Securities, which in no event shall include underwritten
offerings, whether on a firm commitment or best efforts basis. The Company
use
its best efforts to cause the resale prospectus in such Form S-3 Registration
to
be supplemented by any required prospectus supplement (subject to any S-3
Suspension Period(s) referred to below) during the 180 day period following
initial effectiveness; provided, however, that with respect to Registrable
Securities registered pursuant to such Form S-3 Registration Statement, each
Holder agrees that it will not enter into any transaction for the sale of
any
Registrable Securities pursuant to such registration statement during the
time
after the furnishing of the Company’s notice that the Company is preparing a
supplement to such resale prospectus or Form S-3 Registration Statement and
until the filing and effectiveness thereof.
(e) Piggyback
Registration.
The
Company shall have the right to provide Piggyback Registration rights in
the
Registration Statement to investors in a subsequent private placement financing
or underwritten public offering of the Company without providing prior notice
to, or obtaining the consent of, the Holders in the event that such subsequent
financing or offering raises aggregate gross proceeds of at least $10,000,000
(excluding any proceeds specifically intended to be used for purposes of
completing an acquisition pursuant to the terms of such financing or offering)
(each, a “Subsequent
Financing”).
Except
as
otherwise provided herein, if the Company shall determine to register for
sale
for cash any of its Common Stock, for its own account or for the account
of
others (other than the Holders), other than (i) a registration relating to
any
financing transaction consummated prior to or concurrently with the Effective
Time or a Subsequent Financing, (ii) a registration relating solely to employee
benefit plans or securities issued or issuable to employees, consultants
(to the
extent the securities owned or to be owned by such consultants could be
registered on Form S-8) or any of their Family Members (including a registration
on Form S-8) or (iii) a registration relating solely to a Commission Rule
145
transaction, a registration on Form S-4 in connection with a merger,
acquisition, divestiture, reorganization, or similar event, the Company shall
promptly give to the Holders written notice thereof (and in no event shall
such
notice be given less than 20 calendar days prior to the filing of such
registration statement), and shall include as a Piggyback Registration all
of
the Registrable Securities specified in a written request delivered by the
Holder within 10 calendar days after receipt of such written notice from
the
Company. However, the Company may, without the consent of the Holders, withdraw
such registration statement prior to its becoming effective if the Company
or
such other stockholders have elected to abandon the proposal to register
the
securities proposed to be registered thereby.
6
(f) Underwriting.
If a
Piggyback Registration is for a registered public offering involving an
underwriting, the Company shall so advise the Holders. In such event, the
right
of any Holder to Piggyback Registration shall be conditioned upon such Holder’s
participation in such underwriting and the inclusion of such Holder’s
Registrable Securities in the underwriting to the extent provided herein.
All
Holders proposing to include the Registrable Securities they hold through
such
underwriting shall (together with the Company and any other stockholders
of the
Company selling their securities through such underwriting) enter into an
underwriting agreement in customary form with the underwriter selected for
such
underwriting by the Company or the selling stockholders, as applicable.
Notwithstanding any other provision of this Section, if the underwriter or
the
Company determines that marketing factors require a limitation of the number
of
shares of Common Stock or the amount of other securities to be underwritten,
the
underwriter may exclude some or all Registrable Securities from such
registration and underwriting, provided,
however, that no such reduction shall reduce the amount of securities of
the
Holders included in the registration below thirty percent (30%) of the total
amount of securities included in such registration. The
Company shall so advise all Holders (except those Holders who failed to timely
elect to include their Registrable Securities through such underwriting or
have
indicated to the Company their decision not to do so), and indicate to each
such
Holder the number of shares of Registrable Securities that may be included
in
the registration and underwriting, if any. The number of shares of Registrable
Securities to be included in such registration and underwriting shall be
allocated among such Holders as follows:
(i) In
the event of a Piggyback Registration that is initiated by the Company, the
number of shares that may be included in the registration and underwriting
shall
be allocated first to the Company and then, subject to obligations and
commitments existing as of the date hereof, to all selling stockholders,
including the Holders, who have requested to sell in the registration on
a pro
rata basis according to the number of shares requested to be included;
and
(ii) In
the event of a Piggyback Registration that is initiated by the exercise of
demand registration rights by a stockholder or stockholders of the Company
(other than the Holders), then the number of shares that may be included
in the
registration and underwriting shall be allocated first
to such
selling stockholders who exercised such demand second,
subject
to obligations and commitments existing as of the date hereof, to the Holders,
and third
to all
other selling stockholders, who have requested to sell in the registration,
on a
pro rata basis, according to the number of shares requested to be
included.
7
No
Registrable Securities excluded from the underwriting by reason of the
underwriter’s marketing limitation shall be included in such registration. If
any Holder disapproves of the terms of any such underwriting, such Holder may
elect to withdraw his Registrable Securities therefrom by delivery of written
notice to the Company and the underwriter. The Registrable Securities so
withdrawn from such underwriting shall also be withdrawn from such registration;
provided that, if by the withdrawal of such Registrable Securities a greater
number of Registrable Securities held by other Holders may be included in such
registration (up to the maximum of any limitation imposed by the underwriters),
then the Company shall offer to all Holders who have included Registrable
Securities in the registration the right to include additional Registrable
Securities pursuant to the terms and limitations set forth herein in the same
proportion used above in determining the underwriter limitation.
4. Registration
Procedures.
(a) In
connection with the filing by the Company of the Stockholder Registration
Statement, the Company shall make available to each Holder, or at the request
of
any Holder, furnish, a copy of the prospectus, including a preliminary
prospectus, in conformity with the requirements of the Securities
Act.
(b) The
Company shall use its best efforts to register or qualify the Registrable
Securities covered by the Stockholder Registration Statement under the
securities laws of each state of the United States wherein any Holder resides;
provided,
however,
that
the Company shall not be required in connection with this paragraph (b) to
qualify as a foreign corporation, subject itself to taxation in any such
jurisdiction, or execute a general consent to service of process in any such
jurisdiction.
(c) If
the Company has delivered preliminary or final prospectuses to the Holders
and
after having done so the prospectus is amended or supplemented to comply
with
the requirements of the Securities Act, the Company shall promptly notify
the
Holders and, if requested by the Company, the Holders shall immediately cease
making offers or sales of shares under the Stockholder Registration Statement
and return all prospectuses to the Company. The Company shall promptly provide
the Holders with revised or supplemented prospectuses and, following receipt
of
the revised or supplemented prospectuses, the Holders shall be free to resume
making offers and sales under the Stockholder Registration
Statement.
(d) The
Company shall pay the expenses incurred by it in complying with its obligations
under this Article 3, including all registration and filing fees, exchange
listing fees, fees and expenses of counsel for the Company, and fees and
expenses of accountants for the Company, but excluding (i) any brokerage
fees,
selling commissions or underwriting discounts incurred by the Holders in
connection with sales under the Stockholder Registration Statement and (ii)
the
fees and expenses of any counsel retained by Holders.
(e) As
promptly as practicable after becoming aware of such event, the Company shall
notify each Holder of Registrable Securities, the disposition of which requires
delivery of a prospectus relating thereto under the Securities Act, of the
happening of any event, which comes to the Company’s attention, that will after
the occurrence of such event cause the prospectus included in such Registration
Statement, if not amended or supplemented, to contain an untrue statement
of a
material fact or an omission to state a material fact required to be stated
therein or necessary to make the statements therein not misleading and the
Company shall promptly thereafter prepare and furnish to such Holder a
supplement or amendment to such prospectus (or prepare and file appropriate
reports under the Exchange Act) so that, as thereafter delivered to the Offerees
of such Registrable Securities, such prospectus shall not contain an untrue
statement of a material fact or omit to state any material fact required
to be
stated therein or necessary to make the statements therein not misleading,
unless suspension of the use of such prospectus otherwise is authorized herein
or in the event of a Blackout Period, in which case no supplement or amendment
need be furnished (or Exchange Act filing made) until the termination of
such
suspension or Blackout Period.
8
(f) The
Company shall comply, and continue to comply during the Effectiveness Period,
in
all material respects with the Securities Act and the Exchange Act and with
all
applicable rules and regulations of the Commission with respect to the
disposition of all securities covered by such Registration
Statement;
(g) The
Company shall, as promptly as practicable after becoming aware of such event,
notify each Holder of Registrable Securities being offered or sold pursuant
to
the Registration Statement of the issuance by the Commission of any stop
order
or other suspension of effectiveness of the Registration Statement or any
pending proceeding against the Company under Section 8A of the Securities
Act in
connection with the Offering of the Registrable Securities;
(h) The
Company shall use its best efforts to cause all the Registrable Securities
covered by the Registration Statement to be quoted on the NASD OTC Bulletin
Board or such other principal securities market on which securities of the
same
class or series issued by the Company are then listed or traded;
(i) The
Company shall provide a transfer agent and registrar, which may be a single
entity, for the shares of Common Stock at all times;
(j) The
Company shall cooperate with the Holders of Registrable Securities being
offered
pursuant to the Registration Statement to issue and deliver, or cause its
transfer agent to issue and deliver, certificates representing Registrable
Securities to be offered pursuant to the Registration Statement within a
reasonable time after the delivery of certificates representing the Registrable
Securities to the transfer agent or the Company, as applicable, and enable
such
certificates to be in such denominations or amounts as the Holders may
reasonably request and registered in such names as the Holders may
request;
(k) During
the Effectiveness Period, The Company shall refrain from bidding for or
purchasing any Common Stock or any right to purchase Common Stock or attempting
to induce any person to purchase any such security or right if such bid,
purchase or attempt would unreasonably limit the right of the Holders to
sell
Registrable Securities by reason of the limitations set forth in Regulation
M
under the Exchange Act;
9
(l) The
Company shall take all other reasonable actions necessary to expedite and
facilitate the disposition by the Holders of the Registrable Securities pursuant
to the Registration Statement; and
(m) The
Company shall file electronically on XXXXX the Registration Statement and
all
amendments and supplements thereto.
5. Suspension
of Offers and Sales. Each Holder agrees that, upon receipt of any notice
from the Company of the happening of any event of the kind described in Section
4(g) hereof or of the commencement of a Blackout Period, such Holder shall
discontinue the disposition of Registrable Securities included in the
Registration Statement until such Holder’s receipt of the copies of the
supplemented or amended prospectus contemplated by Section 4(g) hereof or notice
of the end of the Blackout Period, and, if so directed by the Company, such
Holder shall deliver to the Company (at the Company’s expense) all copies
(including, without limitation, any and all drafts), other than permanent file
copies, then in such Holder’s possession, of the prospectus covering such
Registrable Securities current at the time of receipt of such
notice.
6. Registration
Expenses. The Company shall pay all expenses in connection with any
registration obligation provided herein, including, without limitation, all
registration, filing, stock exchange fees, printing expenses, all fees and
expenses of complying with securities or blue sky laws, and the fees and
disbursements of counsel for the Company and of its independent accountants;
provided that, in any underwritten registration, each party shall pay for its
own underwriting discounts and commissions and transfer taxes. Except as
provided in this Section and Section 9, the Company shall not be responsible
for
the expenses of any attorney or other advisor employed by a Holder.
7. Assignment
of Rights. No Holder may assign its rights under this Agreement to any party
without the prior written consent of the Company; provided, however, that a
Holder may assign its rights under this Agreement without such consent to a
Permitted Assignee as long as (a) such transfer or assignment is effected in
accordance with applicable securities laws; (b) such transferee or assignee
agrees in writing to become subject to the terms of this Agreement; and (c)
the
Company is given written notice by such Holder of such transfer or assignment,
stating the name and address of the transferee or assignee and identifying
the
Registrable Securities with respect to which such rights are being transferred
or assigned.
8. Requirements
of Holders. The Company shall not be required to include any Registrable
Securities in the Stockholder Registration Statement unless:
(a) the
Holder owning such shares furnishes to the Company in writing such information
regarding such Holder and the proposed sale of Registrable Securities by
such
Holder as the Company may reasonably request in writing in connection with
the
Stockholder Registration Statement or as shall be required in connection
therewith by the SEC or any state securities law authorities;
(b) such
Holder shall have provided to the Company its written agreement:
10
(i) to
indemnify the Company and each of its directors, officers, and each other
person
as stipulated in Section 9(b) hereunder; and
(ii) to
report to the Company sales made pursuant to the Stockholder Registration
Statement.
9. Indemnification.
(a) The
Company agrees to indemnify and hold harmless each Holder whose shares are
included in the Stockholder Registration Statement against any losses, claims,
damages, expenses or liabilities to which such Holder may become subject
by
reason of any untrue statement of a material fact contained in the Stockholder
Registration Statement or any omission to state therein a fact required to
be
stated therein
or necessary to make the statements therein not misleading, except insofar
as
such losses, claims, damages, expenses or liabilities arise out of or are
based
upon information furnished to the Company by or on behalf of a Holder for
use in
the Stockholder Registration Statement. The Company shall have the right
to
assume the defense and settlement of any claim or suit for which the Company
may
be responsible for indemnification under this
Section 9(a).
(b) As
a condition to including Registrable Securities in any registration statement
filed pursuant to this Agreement, each Holder agrees to be bound by the terms
of
this Section 9 and to indemnify and hold harmless, to the fullest extent
permitted by law, the Company, its directors and officers, and each other
person, if any, who controls the Company within the meaning of Section 15
of the
Securities Act, against any losses, claims, damages or liabilities, joint
or
several, to which the Company or any such director or officer or controlling
person may become subject under the Securities Act or otherwise, insofar
as such
losses, claims, damages or liabilities (or actions or proceedings, whether
commenced or threatened, in respect thereof) that arises out of or is based
upon
an untrue statement in or omission from such Stockholder Registration Statement,
any such preliminary prospectus, final prospectus, summary prospectus, amendment
or supplement in reliance upon and in conformity with (i) written information
furnished by the Holder, and (ii) written information furnished to the Holder
through an instrument duly executed by or on behalf of the Company specifically
stating that it is for use in the preparation thereof, and such Holder shall
reimburse the Company, and each such director, officer, and controlling person
for any legal or other expenses reasonably incurred by them in connection
with
investigating, defending, or settling and such loss, claim, damage, liability,
action, or proceeding; provided, however, that such indemnity agreement found
in
this Section 9 shall in no event exceed the gross proceeds from the Offering
received by such Holder. Such indemnity shall remain in full force and effect,
regardless of any investigation made by or on behalf of the Company or any
such
director, officer or controlling person and shall survive the transfer by
any
Holder of such shares.
(c) Promptly
after receipt by an indemnified party of notice of the commencement of any
action or proceeding involving a claim referred to in this Section (including
any governmental action), such indemnified party shall, if a claim in respect
thereof is to be made against an indemnifying party, give written notice
to the
indemnifying party of the commencement of such action; provided that the
failure
of any indemnified party to give notice as provided herein shall not relieve
the
indemnifying party of its obligations under this Section, except to the extent
that the indemnifying party is actually prejudiced by such failure to give
notice. In case any such action is brought against an indemnified party,
unless
in the reasonable judgment of counsel to such indemnified party a conflict
of
interest between such indemnified and indemnifying parties may exist or the
indemnified party may have defenses not available to the indemnifying party
in
respect of such claim, the indemnifying party shall be entitled to participate
in and to assume the defense thereof, with counsel reasonably satisfactory
to
such indemnified party and, after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party shall not be liable to such indemnified party for any
legal
or other expenses subsequently incurred by the latter in connection with
the
defense thereof, unless in such indemnified party’s reasonable judgment a
conflict of interest between such indemnified and indemnifying parties arises
in
respect of such claim after the assumption of the defenses thereof or the
indemnifying party fails to defend such claim in a diligent manner, other
than
reasonable costs of investigation. Neither an indemnified nor an indemnifying
party shall be liable for any settlement of any action or proceeding effected
without its consent. No indemnifying party shall, without the consent of
the
indemnified party, consent to entry of any judgment or enter into any
settlement, which does not include as an unconditional term thereof the giving
by the claimant or plaintiff to such indemnified party of a release from
all
liability in respect of such claim or litigation. Notwithstanding anything
to
the contrary set forth herein, and without limiting any of the rights set
forth
above, in any event any party shall have the right to retain, at its own
expense, counsel with respect to the defense of a claim.
11
(d) In
the event that an indemnifying party does or is not permitted to assume the
defense of an action pursuant to Sections 9(c) or in the case of the expense
reimbursement obligation set forth in Sections 9(a) and (b), the indemnification
required by Sections 9(a) and (b) hereof shall be made by periodic payments
of
the amount thereof during the course of the investigation or defense, as
and
when bills received or expenses, losses, damages, or liabilities are
incurred.
(e) If
the indemnification provided for in this Section is held by a court of competent
jurisdiction to be unavailable to an indemnified party with respect to any
loss,
liability, claim, damage or expense referred to herein, the indemnifying
party,
in lieu of indemnifying such indemnified party hereunder, shall (i) contribute
to the amount paid or payable by such indemnified party as a result of such
loss, liability, claim, damage or expense as is appropriate to reflect the
proportionate relative fault of the indemnifying party on the one hand and
the
indemnified party on the other (determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or omission
relates to information supplied by the indemnifying party or the indemnified
party and the parties’ relative intent, knowledge, access to information and
opportunity to correct or prevent such untrue statement or omission), or
(ii) if
the allocation provided by clause (i) above is not permitted by applicable
law
or provides a lesser sum to the indemnified party than the amount hereinafter
calculated, not only the proportionate relative fault of the indemnifying
party
and the indemnified party, but also the relative benefits received by the
indemnifying party on the one hand and the indemnified party on the other,
as
well as any other relevant equitable considerations. No indemnified party
guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any indemnifying party
who was not guilty of such fraudulent misrepresentation.
12
(f) Other
Indemnification.
Indemnification similar to that specified in this Section (with appropriate
modifications) shall be given by the Company and each Holder of Registrable
Securities with respect to any required registration or other qualification
of
securities under any federal or state law or regulation or governmental
authority other than the Securities Act.
10. Rule
144.
Rule
144 Reporting. With a view to making available to the Offerees the benefits
of
certain rules and regulations of the SEC which may permit the sale of the
Registrable Securities to the public without registration, the Company shall
use
its best efforts to:
(a) Make
and
keep public information available, as those terms are understood and defined
in
Rule 144 or any similar or analogous rule promulgated under the Securities
Act,
at all times after the effective date of the first registration filed by
the
Company for an offering of its securities to the general
public;
(b) File
with
the Commission, in a timely manner, all reports and other documents required
of
the Company under the Exchange Act; and
(c) So
long as a Holder owns any Registrable Securities, furnish to such Holder
forthwith upon request: a written statement by the Company as to its compliance
with the reporting requirements of said Rule 144 and of the Exchange Act;
a copy
of the most recent annual or quarterly report of the Company filed with the
Commission; and such other reports and documents as a Holder may reasonably
request in connection with availing itself of any rule or regulation of the
Commission allowing it to sell any such securities without
registration.
11. Independent
Nature of Each Offeree’s Obligations and Rights. The obligations of each
Offeree under this Agreement are several and not joint with the obligations
of
any other Offeree, and each Offeree shall not be responsible in any way for
the
performance of the obligations of any other Offeree under this Agreement.
Nothing contained herein and no action taken by any Offeree pursuant hereto,
shall be deemed to constitute such Offerees as a partnership, an association,
a
joint venture, or any other kind of entity, or create a presumption that the
Offerees are in any way acting in concert or as a group with respect to such
obligations or the transactions contemplated by this Agreement. Each Offeree
shall be entitled to independently protect and enforce its rights, including
without limitation the rights arising out of this Agreement, and it shall not
be
necessary for any other Offeree to be joined as an additional party in any
proceeding for such purpose.
12. Miscellaneous.
(a) Governing
Law.
This
Agreement shall be governed by and construed in accordance with the laws
of the
State of New York and the United States of America, both substantive and
remedial, without regard to New York conflicts of law principles. Any judicial
proceeding brought against either of the parties to this agreement or any
dispute arising out of this Agreement or any matter related hereto shall
be
brought in the courts of the State of New York, New York County, or in the
United States District Court for the Southern District of New York and, by
its
execution and delivery of this agreement, each party to this Agreement accepts
the jurisdiction of such courts. The foregoing consent to jurisdiction shall
not
be deemed to confer rights on any person other than the parties to this
Agreement.
13
(b) Successors
and Assigns.
Except
as otherwise provided herein, the provisions hereof shall inure to the benefit
of, and be binding upon, the successors, Permitted Assignees, executors and
administrators of the parties hereto. In the event the Company merges with,
or
is otherwise acquired by, a direct or indirect subsidiary of a publicly traded
company, the Company shall condition the merger or acquisition on the assumption
by such parent company of the Company’s obligations under this Agreement.
(c) Entire
Agreement.
This
Agreement constitutes the full and entire understanding and agreement between
the parties with regard to the subjects hereof.
(d) Notices,
etc.
All
notices or other communications which are required or permitted under this
Agreement shall be in writing and sufficient if delivered by hand, by facsimile
transmission, by registered or certified mail, postage pre-paid, by electronic
mail, or by courier or overnight carrier, to the persons at the addresses
set
forth below (or at such other address as may be provided hereunder), and
shall
be deemed to have been delivered as of the date so delivered:
13. If
to GoFish Corporation:
| (i) |
__________________________________
|
| (b) |
__________________________________
|
| (c) |
Attention:
__________________________________
|
14. If
to the
Offerees:
| (a) |
To
each Offeree at the address
|
| (b) |
set
forth on Exhibit A
|
15. or
at
such other address as any party shall have furnished to the other parties in
writing.
(a) Delays
or Omissions.
No
delay or omission to exercise any right, power or remedy accruing to any
Holder,
upon any breach or default of the Company under this Agreement, shall impair
any
such right, power or remedy of such Holder nor shall it be construed to be
a
waiver of any such breach or default, or an acquiescence therein, or of or
in
any similar breach or default thereunder occurring; nor shall any waiver
of any
single breach or default be deemed a waiver of any other breach or default
theretofore or thereafter occurring. Any waiver, permit, consent or approval
of
any kind or character on the part of any Holder of any breach or default
under
this Agreement, or any waiver on the part of any Holder of any provisions
or
conditions of this Agreement, must be in writing and shall be effective only
to
the extent specifically set forth in such writing. All remedies, either under
this Agreement, or by law or otherwise afforded to any holder, shall be
cumulative and not alternative.
14
(b) Counterparts.
This
Agreement may be executed in any number of counterparts, each of which shall
be
enforceable against the parties actually executing such counterparts, and
all of
which together shall constitute one instrument. In the event that any signature
is delivered by facsimile transmission, such signature shall create a valid
and
binding obligation of the party executing (or on whose behalf such signature
is
executed) with the same force and effect as if such facsimile signature page
were an original thereof.
(c) Severability.
In the
case any provision of this Agreement shall be invalid, illegal or unenforceable,
the validity, legality and enforceability of the remaining provisions shall
not
in any way be affected or impaired thereby.
(d) Amendments.
The
provisions of this Agreement may be amended at any time and from time to
time,
and particular provisions of this Agreement may be waived, with and only
with an
agreement or consent in writing signed by the Company and the Majority Holders.
The Offerees acknowledge that by the operation of this Section, the Majority
Holders may have the right and power to diminish or eliminate all rights
of the
Offerees under this Agreement.
(e) Limitation
on Subsequent Registration Rights.
Except
as set forth in Section 3(b) or pursuant to the Liquidity Agreements entered
into between the Company and each of Xxxxx Xxxxx and Xxxxx Xxxxx on the date
of
this Agreement, after the date of this Agreement, the Company shall not,
without
the prior written consent of the Majority Holders, enter into any agreement
with
any holder or prospective holder of any securities of the Company that would
grant such holder registration rights senior to those granted to the Holders
hereunder.
[SIGNATURE
PAGES FOLLOW]
15
This
Registration Rights Agreement is hereby executed as of the date first above
written.
|
COMPANY:
|
||
| |
|
GOFISH
CORPORATION |
| Date: | By: | |
| Name: | ||
|
Title:
|
||
[SIGNATURE
PAGE OF HOLDER FOLLOWS]
16
This
Registration Rights Agreement is hereby executed as of the date first above
written.
| HOLDER: | ||
|
(Print
Name)
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
17
Exhibit
A
Holders
|
Holder
Name
|
Holder
Address
|
Number
of Shares of Company Common Stock or Common Stock Equivalents
Held
|
||
