FOURTH AMENDMENT TO MERGER AGREEMENT
Exhibit
10.2
FOURTH
AMENDMENT
This
FOURTH AMENDMENT
TO MERGER AGREEMENT (this “Fourth
Amendment”)
is
dated as of June 20, 2007 and entered into by and among GoFish Corporation,
a
Nevada corporation (the “Buyer”),
BM
Acquisition Corp Inc., a Delaware corporation and wholly owned subsidiary of
the
Buyer (the “Transitory
Subsidiary”),
Bolt,
Inc., a/k/a Bolt Media, Inc., a Delaware corporation (the “Company”),
and
Xxxx Xxxxx, (the “Indemnification
Representative”),
with
reference to that certain Agreement and Plan of Merger dated as of February
11,
2007, by and among the Buyer, the Transitory Subsidiary, the Company and the
Indemnification Representative, as amended by the First Amendment to Merger
Agreement dated as of March 29, 2007, Second Amendment to Merger Agreement
dated
as of May 31, 2007 and Third Amendment to Merger Agreement dated as of June
15,
2007 each by and among the Buyer, the Transitory Subsidiary, the Company and
the
Indemnification Representative (collectively, the “Merger
Agreement”).
Capitalized terms used but not defined in this Fourth Amendment shall have
the
meanings given to such terms in the Merger Agreement.
WHEREAS,
the parties hereto have agreed to amend the Merger Agreement to provide that
the
Closing Date shall be on such date as is mutually agreed upon by the parties
up
to the Termination Date, and to provide that the Termination Date shall be
June
22, 2007;
NOW,
THEREFORE, in consideration of the mutual agreements herein contained, and
intending be legally bound hereby, the parties hereto hereby agree as
follows:
ARTICLE
I
AMENDMENT
TO THE MERGER AGREEMENT AND FIRST AMENDMENT
1.1 Section
7.1(e)
of the
Merger Agreement and First Amendment is hereby replaced in its entirety with
the
following:
(e) the
Buyer
may terminate this Agreement if the Closing shall not have occurred on or before
June 22, 2007 (the “Termination Date”) by reason of the failure of any condition
precedent under Section 5.1 or 5.2 hereof (unless the failure results primarily
from a breach by the Buyer or the Transitory Subsidiary of any representation,
warranty or covenant contained in this Agreement);
ARTICLE
II
MISCELLANEOUS
2.1 Effect
on Merger Agreement.
On and
after the date of this Fourth Amendment each reference in the Merger Agreement
to “this Agreement,” “hereunder,” “hereof,” “herein,” or words of like import
referring to the Merger Agreement shall mean and be a reference to the Merger
Agreement, as amended by this Fourth Amendment. Except as specifically amended
by this Fourth Amendment, the Merger Agreement shall remain in full force and
effect and is hereby ratified and confirmed.
2.2 Governing
Law.
This
Fourth Amendment shall be governed by and construed in accordance with the
internal laws of the State of Delaware without giving effect to any choice
or
conflict of law provision or rule (whether of the State of Delaware or any
other
jurisdiction) that would cause the application of laws of any jurisdictions
other than those of the State of Delaware.
2.3 Counterparts;
Facsimile.
This
Fourth
Amendment
may
be
executed in two or more counterparts, each of which shall be deemed an original
and all of which together shall constitute one and the same instrument, and
facsimile signatures shall be deemed, for the purposes of this Fourth Amendment,
original signatures.
2.4 Severability.
Any term
or provision of this Fourth Amendment that is invalid or unenforceable in any
situation in any jurisdiction shall not affect the validity or enforceability
of
the remaining terms and provisions hereof or the validity or enforceability
of
the offending term or provision in any other situation or in any other
jurisdiction. If the final judgment of a court of competent jurisdiction
declares that any term or provision hereof is invalid or unenforceable, the
Parties agree that the court making the determination of invalidity or
unenforceability shall have the power to limit the term or provision, to delete
specific words or phrases, or to replace any invalid or unenforceable term
or
provision with a term or provision that is valid and enforceable and that comes
closest to expressing the intention of the invalid or unenforceable term or
provision, and this Fourth Amendment shall be enforceable as so
modified.
[Signature
page follows]
IN
WITNESS WHEREOF, the Parties hereto have caused this Fourth Amendment to be
duly
executed and delivered as of the date first above written.
GOFISH
CORPORATION
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By:
/s/ Xxxxxxx Xxxxxx
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Name:Xxxxxxx
Xxxxxx
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Title:
President
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BM
ACQUISITION CORP INC.
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By:
/s/ Xxxxxxx Xxxxxx
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Name:Xxxxxxx
Xxxxxx
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Title:
President
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BOLT,
INC.
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By:
/s/ Xxxxx Xxxxx
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Name:Xxxxx
Xxxxx
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Title:Chief
Executive Officer
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INDEMNIFICATION
REPRESENTATIVE
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By:
/s/ Xxxx Xxxxx
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Name:Xxxx
Xxxxx
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