SUBSCRIPTION AGREEMENT
EXHIBIT
10.2
This
Subscription Agreement (the “Agreement”)
is made
as of this 27th day of October, 2006, by and among GoFish Corporation (f/k/a
Unibio Inc.), a Nevada corporation (the “Company”),
GoFish
Technologies, Inc., a California corporation (“GoFish”)
and
the investor identified on the signature page to this Agreement (the
“Investor”).
RECITALS:
WHEREAS,
the Company and GoFish anticipate the entry into an Agreement and Plan of Merger
and Reorganization, pursuant to which GF Acquisition Corp., a California
corporation and a wholly-owned subsidiary of the Company, will merge with and
into GoFish, with GoFish remaining as the surviving entity and a wholly-owned
subsidiary of the Company (the “Merger,”
the
date such Merger becomes effective hereinafter referred to as the “Merger Effective
Date”);
WHEREAS,
as a condition to the consummation of the Merger, and to provide the capital
required by GoFish for working capital purposes, the Company is offering in
compliance with Rule 506 of Regulation D of the Securities Act of 1933, as
amended (the “Securities
Act”),
and
available prospectus exemptions in Canada, to accredited investors in a private
placement transaction (the “Offering”),
a
minimum (the “Minimum”)
of
3,666,667 units (the “Units”)
and a
maximum (the “Maximum”)
of
6,666,667 Units, or such greater amount not to exceed 8,000,000 Units, as the
Company may determine, each Unit consisting of one (1) share of the Company’s
common stock (“Common
Stock”)
and a
warrant (the “Investor
Warrants”)
to
purchase one-half (1/2) share of Common Stock for five (5) years at the exercise
price of $1.75 per share of Common Stock;
WHEREAS,
the Investor desires to subscribe for, purchase and acquire from the Company
and
the Company desires to sell and issue to the Investor the number of Units,
set
forth on the signature page of this Agreement (the “Investor’s
Units”)
upon
the terms and conditions and subject to the provisions hereinafter set
forth;
WHEREAS,
in connection with the purchase of the Investor’s Units, the Company and the
Investor will execute a Registration Rights Agreement dated as of the date
hereof pursuant to which the Company will provide certain registration rights
to
the Investor (the “Registration
Rights Agreement”);
and
WHEREAS,
the Company, GoFish, and McGuireWoods LLP (the “Escrow
Agent”)
have
entered into an Escrow Agreement (the “Escrow
Agreement”)
to
provide for the safekeeping of funds received and documents executed in
connection with the Offering.
NOW,
THEREFORE, for and in consideration of the mutual premises contained herein
and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto agree as follows:
1. Purchase
and Sale of the Units.
Subject
to the terms and conditions of this Agreement and the satisfaction of the
Closing Conditions, the Investor subscribes for and agrees to purchase and
acquire from the Company, and the Company agrees to sell and issue to the
Investor, the Investor’s Units at the purchase price of $1.50 per Unit (the
“Purchase
Price”)
payable in cash or by surrender of certain bridge notes of GoFish (the
“GoFish
Notes”)
valued
at the unpaid principal amount thereof; provided,
that
the Company reserves the right, in its sole discretion and for any reason,
to
reject any Investor’s subscription, in whole or in part, or to allot less than
the number of Units subscribed for. To the extent that any subscription to
be
paid by surrender of GoFish Notes is rejected in whole or in part, the GoFish
Notes that the Company has not accepted shall remain due and payable in
accordance with their terms.
2. The
Closing.
The
Offering will terminate upon the earlier of (i) the receipt of acceptable
subscriptions from the Investor and all other investors totaling $10,000,000,
or
such greater amount as the Company may determine, and (ii) the election of
the
Company upon receipt of subscriptions from the Investor and all other investors
totaling $5,500,000 in cash; provided
that the
initial closing of the Offering shall be concurrent with the close of the
Merger
(the
“Closing,”
the
date such Closing occurs hereinafter referred to as the “Closing
Date”)
at the
offices of the Escrow Agent. On the Closing Date, the Escrow Agent shall deliver
the funds and Transaction Documents (as defined herein) held in escrow as of
the
Closing Date pursuant to the terms of the Escrow Agreement. As soon as
practicable after the Closing Date, the Company shall issue and deliver, or
shall cause the issuance and delivery of, a stock certificate, registered in
the
name of the Investor and representing the shares of Common Stock underlying
the
Investor’s Units, and a warrant certificate registered in the name of the
Investor representing the Investor’s right to purchase the number of shares of
Common Stock underlying the Investor’s Warrants purchased in the
Offering.
3. Subscription
Procedure.
To
complete a subscription for the Units, the Investor must fully comply with
the
subscription procedure provided in this Section on or before 5:00 p.m. Eastern
time on the Closing Date.
(a) Transaction
Documents.
Prior
to 5:00 p.m. Eastern time on the Closing Date, the Investor shall review,
complete and execute this Agreement, the Investor Questionnaire attached hereto
as Appendix A, and the Registration Rights Agreement (collectively, the
“Transaction
Documents”),
and
deliver such Transaction Documents to the Escrow Agent at the address provided
below. Executed agreements and questionnaires may be delivered to the Escrow
Agent by facsimile using the facsimile number provided below if the Investor
immediately thereafter confirms receipt of such transmission with the Escrow
Agent and delivers the original copies of the agreements and questionnaire
to
the Escrow Agent as soon as practicable thereafter.
Escrow
Agent - Mailing Address and Facsimile Number:
McGuireWoods
LLP
00
Xxxxx
Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxxxx,
XX 00000-0000
Facsimile
Number: (000) 000-0000
Attention:
Nova Harb
Telephone
Number: (000) 000-0000
2
(b) Purchase
Price.
Simultaneously with the delivery of the Transaction Documents to the Escrow
Agent as provided herein, and in any event on or before 5:00 p.m. Eastern time
on the Closing Date, each Investor that is purchasing Units for cash shall
deliver to the Escrow Agent the full Purchase Price for the Investor’s Units by
wire transfer of immediately available funds pursuant to wire transfer
instructions provided below:
Escrow
Agent - Wire Transfer Instructions:
BANK
OF
AMERICA - Jacksonville, FL
ABA:
000000000 (Domestic Wires)
Swift
Code: XXXXXX0X (International Wires)
Credit:
McGuireWoods LLP IOLTA Account
Account
Number: 2101206537
Reference:
Xxxxx Xxxxx -GoFish
Escrow - 2049127-0001
McGuireWoods
Accounting Contact: Xxxxx Xxxxx (000) 000-0000
Bank
Contact: Xxxxxxx Xxxxx (000) 000-0000, Opt. 2, Ext. 2160
Any
Investor that proposes to purchase Units with GoFish Notes shall tender the
original executed GoFish Notes to the Escrow Agent to be used in payment for
the
Units subscribed for by such Investor and hereby authorizes the Escrow Agent
to
xxxx “CANCELLED” any GoFish Notes that the Company accepts in payment for
Units.
(c) Purchaser
Representative.
If the
Investor has retained the services of a purchaser representative to assist
in
evaluating the merits and risks associated with investing in the Units, the
Investor must deliver along with the Transaction Documents a purchaser
representative certificate in a form acceptable to the Company.
(d) Company
Discretion to Accept or Reject Subscriptions.
The
Company may accept any subscription in whole or in part, or reject any
subscription in its sole discretion for any reason whatsoever, and may terminate
this Offering at any time prior to acceptance of subscriptions. If the
Investor’s subscription is rejected or if the conditions to closing this
Offering, including the receipt and acceptance of the subscriptions representing
$5,500,000 in cash, are not satisfied, or if this Offering is otherwise
terminated or withdrawn, funds delivered by the Investor to the Escrow Agent
will be returned to the Investor without interest or deduction.
4. Representations
and Warranties of the Company and GoFish.
In
order to induce the Investor to enter into this Agreement, the Company and,
as
applicable, GoFish represent and warrant to the Investor as
follows:
(a) Authority.
Each of
the Company and GoFish is an entity duly organized, validly existing, and in
good standing under the laws of the state in which it was incorporated or
otherwise formed, and has all requisite right, power, and authority to execute,
deliver and perform this Agreement.
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(b) Subsidiaries.
The
Company has no direct or indirect subsidiaries (each a “Subsidiary”
and
collectively the “Subsidiaries”)
other
than GF Acquisition Corp., ITD Acquisition Corp., GF Leasco, Inc. and those
necessary or desirable to consummate the Merger and the transactions
contemplated by the Merger Agreement. Except as disclosed in the Exchange Act
Documents, the Company owns, directly or indirectly, all of the capital stock
of
each Subsidiary free and clear of any and all liens, and all the issued and
outstanding shares of capital stock of each Subsidiary are validly issued and
are fully paid, non-assessable and free of preemptive and similar rights.
(c) Enforceability.
The
execution, delivery, and performance of this Agreement by the Company have
been
duly authorized by all requisite corporate action. This Agreement has been
duly
executed and delivered by each of the Company and GoFish, and, upon its
execution by the Investor, shall constitute the legal, valid and binding
obligation of each of the Company and GoFish, enforceable in accordance with
its
terms, except to the extent that its enforceability is limited by bankruptcy,
insolvency, reorganization, or other laws relating to or affecting the
enforcement of creditors’ rights generally and by general principles of
equity.
(d) No
Violations.
The
execution, delivery, and performance of this Agreement by the Company or by
GoFish does not, and will not, violate or conflict with any provision of the
Company’s or GoFish’s respective certificate of incorporation (including all
amendments thereto) or bylaws (including all amendments thereto), or other
charter documents, and does not and will not, with or without the passage of
time or the giving of notice, result in the breach of, or constitute a default,
cause the acceleration of performance, or require any consent under, or result
in the creation of any lien, charge or encumbrance upon any property or assets
of the Company, or as applicable of GoFish, pursuant to any material instrument
or agreement to which the Company, or GoFish, is a party or by which the
Company, or GoFish, or its properties are bound.
(e) Capitalization.
Upon
issuance in accordance with the terms of this Agreement against payment of
the
Purchase Price therefor, the shares of Common Stock underlying the Investor’s
Units will be duly and validly issued, fully paid, and nonassessable and free
and clear of all liens imposed by or through the Company, and, assuming the
accuracy of the representations and warranties of the Investor and all other
purchasers of the Units in the Offering, will be issued in accordance with
a
valid exemption from the registration or qualification provisions of the
Securities Act, and any applicable state securities laws (the “State
Acts”)
or
will be issued in accordance with a valid prospectus exemption in
Canada.
(f) Exchange
Act Filing.
During
the 12 calendar months immediately preceding the date of this Agreement, all
reports and statements, including all amendments thereto, required to be filed
by the Company with the Securities and Exchange Commission (the “Commission”)
under
the Securities Exchange Act of 1934, as amended (the “Exchange
Act”),
and
the rules and regulations thereunder, have been timely filed. Such filings,
together with amendments thereto and all documents incorporated by reference
therein, are referred to as “Exchange
Act Documents.”
Each
Exchange Act Document, conformed in all material respects to the requirements
of
the Exchange Act and the rules and regulations thereunder, and no Exchange
Act
Document at the time each such document was filed, included any untrue statement
of a material fact or omitted to state any material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
4
(g) Company
Financial Statements. The
unaudited financial statements, together with the related notes of the Company
included in the Company’s Quarterly Report on Form 10-QSB for the quarter ended
May 31, 2006 as filed with the Commission (the “Company
Financial Statements”),
fairly present in all material respects, on the basis stated therein and on
the
date thereof, the financial position of the Company at the respective dates
therein specified and its results of operations and cash flows for the periods
then ended. The unaudited financial statements of Go Fish included in the
Confidential Private Placement Memorandum, dated October 3, 2006, of GoFish
(the
“GoFish
Financial Statements”),
fairly present in all material respects, on the basis stated therein and on
the
date thereof, the financial position of GoFish at the respective dates therein
specified and its results of operations and cash flows for the periods then
ended. The Company Financial Statements and GoFish Financial Statements included
in any supplement to the Private Placement Memorandum have been prepared in
accordance with generally accepted accounting principles in the United States
applied on a consistent basis except as expressly noted therein.
(h) No
Material Liabilities.
Except
for liabilities or obligations not individually in excess of $100,000.00, or
as
set forth in the Exchange Act Documents or in the Private Placement Memorandum
(and any supplement thereto), since May 31, 2006, neither the Company nor GoFish
has incurred any material liabilities or obligations, direct or contingent,
except in the ordinary course of business and except for liabilities or
obligations reflected or reserved against on the Company’s balance sheet as of
May 31, 2006, or in the balance sheet of GoFish contained in the GoFish
Financial Statements, and there has not been any change, or to the knowledge
of
the Company or GoFish, development or effect (individually or in the aggregate)
that is or is reasonably likely to be, materially adverse to the condition
(financial or otherwise), business, prospects, or results of operations of
the
Company and the Subsidiaries considered as a whole, on the one hand, or GoFish,
on the other (a “Material
Adverse Effect”),
or
any change in the capital or material increase in the long-term debt of the
Company or GoFish nor has either the Company or GoFish declared, paid, or made
any dividend or distribution of any kind on its capital stock.
(i) No
Disputes Against the Company.
There is
no material pending or, to the knowledge of the Company, threatened (i) action,
suit, claim, proceeding, or investigation against the Company or GoFish, at
law
or in equity, or before or by any Federal, state, municipal, or other
governmental department, commission, board, bureau, agency or instrumentality,
domestic or foreign, (ii) arbitration proceeding against the Company or GoFish,
(iii) governmental inquiry against the Company or GoFish, or (iv) any action
or
suit by or on behalf of the Company or GoFish pending or threatened against
others.
5
(j) Approvals.
The
execution, delivery, and performance by the Company of this Agreement and the
offer and sale of the Units require no consent of, action by or in respect
of,
or filing with, any person, governmental body, agency, or official other than
those consents that have been obtained prior to the Closing and those filings
required to be made pursuant to the Securities Act and any State Acts which
the
Company undertakes to file within the applicable time period or provincial
filings required in connection with sales in Canada.
(k) Compliance.
Neither
the Company nor GoFish, nor any of their respective Subsidiaries: (i) is in
default under or in violation of (and no event has occurred that has not been
waived that, with notice or lapse of time or both, would result in a default
by
the Company or GoFish, or any of their respective Subsidiaries under), nor
has
the Company nor GoFish, nor any of their respective Subsidiaries received notice
of a claim that it is in default under or that it is in violation of, any
indenture, loan or credit agreement, or any other agreement or instrument to
which it is a party or by which it or any of its properties is bound (whether
or
not such default or violation has been waived); (ii) is in violation of any
order of any Court, arbitrator, or governmental body; or (iii) is or has been
in
violation of any statute, rule or regulation of any governmental authority,
including without limitation all foreign, federal, state and local laws relating
to taxes, environmental protection, occupational health and safety, product
quality and safety and employment and labor matters, except in each case as
could not, individually or in the aggregate, have or reasonably be expected
to
result in a Material Adverse Effect. The Company is in compliance with the
applicable requirements of the Xxxxxxxx-Xxxxx Act of 2002, as amended, and
the
rules and regulations thereunder, except where such noncompliance could not
have
or reasonably be expected to result in a Material Adverse Effect.
(l) Patents
and Trademarks.
The
Company and GoFish, and any of their respective Subsidiaries have, or have
rights to use, all patents, patent applications, trademarks, trademark
applications, service marks, trade names, copyrights, licenses, and other
similar rights that are necessary or material for use in connection with their
respective businesses and which the failure to so have could, individually
or in
the aggregate, have or reasonably be expected to result in a Material Adverse
Effect (collectively, the “Intellectual
Property Rights”).
Neither the Company nor GoFish, nor any of their respective Subsidiaries, has
received a written notice that the Intellectual Property Rights used by the
Company or GoFish, or any of their respective Subsidiaries, violates or
infringes upon the rights of any person. Except as set forth in the Exchange
Act
Documents, to the knowledge of the Company, all such Intellectual Property
Rights are enforceable and there is no existing infringement by another person
of any of the Intellectual Property Rights, except where such infringement
could
not have, or reasonably be expected to result in, a Material Adverse
Effect.
(m) Transactions
With Affiliates and Employees.
Except
as set forth in the Exchange Act Documents, the Private Placement Memorandum
(and any supplement thereto) and those transactions contemplated by the
Transaction Documents, none of the officers or directors of the Company or
GoFish and, to the knowledge of the Company or GoFish, none of the employees
of
the Company or GoFish is currently a party to any transaction with the Company
or any Subsidiary or GoFish (other than for services as employees, officers,
and
directors), including any contract, agreement, or other arrangement providing
for the furnishing of services to or by, providing for rental of real or
personal property to or from, or otherwise requiring payments to or from any
officer, director, or such employee or, to the knowledge of the Company or
GoFish, any entity in which any officer, director, or any such employee has
a
substantial interest or is an officer, director, trustee, or
partner.
6
(n) Internal
Accounting Controls.
The
Company and the Subsidiaries maintain a system of internal accounting controls
sufficient to provide reasonable assurance that: (i) transactions are executed
in accordance with management’s general or specific authorizations; (ii)
transactions are recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting principles and
to
maintain asset accountability; (iii) access
to
assets is permitted only in accordance with management’s general or specific
authorization;
and
(iv) the recorded accountability for assets is compared with the existing assets
at reasonable intervals and appropriate action is taken with respect to any
differences. The Company has established disclosure controls and procedures
(as
defined in Exchange Act rules 13a-15(e) and 15d-15(e)) for the Company and
designed such disclosure controls and procedures to ensure that material
information relating to the Company and its Subsidiaries is made known to the
Company’s certifying officers by others within those entities, particularly
during the period in which the Company’s Form 10-QSB is being prepared. The
Company’s certifying officers have evaluated the effectiveness of the Company’s
controls and procedures as of the end of the reporting period covered by each
of
the Company’s Forms 10-QSB filed with the Commission (each such date, the
“Evaluation
Date”)
and
presented in each such report their conclusions about the effectiveness of
the
Company’s disclosure controls and procedures based on their evaluations as of
the applicable Evaluation Date. Since the Evaluation Date of the Company’s most
recently filed Form 10-QSB, there have been no significant changes in the
Company’s disclosure controls and procedures, the Company’s internal control
over financial reporting (as defined in Exchange Act Rules 13a-15(f) or
15d-15(f)) or, to the Company’s knowledge, in other factors that could
significantly affect the Company’s internal controls over financial
reporting.
(o) Solvency.
Based
on the financial condition of the Company as of the Closing Date (and assuming
that the Closing shall have occurred): (i) the Company’s fair saleable value of
its assets exceeds the amount that will be required to be paid on or in respect
of the Company’s existing debts and other liabilities (including known
contingent liabilities) as they mature; (ii) the Company’s assets do not
constitute unreasonably small capital to carry on its business for the current
fiscal year as now conducted and as proposed to be conducted including its
capital needs taking into account the particular capital requirements of the
business conducted by the Company, and projected capital requirements and
capital availability thereof; and (iii) the current cash flow of the Company,
together with the proceeds the Company would receive, were it to liquidate
all
of its assets, after taking into account all anticipated uses of the cash,
would
be sufficient to pay all amounts on or in respect of its debt when such amounts
are required to be paid. The Company does not intend to incur debts beyond
its
ability to pay such debts as they mature (taking into account the timing and
amounts of cash to be payable on or in respect of its debt).
7
(p) Certain
Fees.
Other
than (i) the cash commission payable on the closing and (ii) shares of Common
Stock payable to financial advisors on the closing, no brokerage or finder’s
fees or commissions are or will be payable by the Company to any broker,
financial advisor or consultant, finder, placement agent, investment banker,
bank, or other person with respect to the transactions contemplated by this
Agreement. The Investor shall have no obligation with respect to any claims
(other than such fees or commissions owed by an Investor pursuant to written
agreements executed by the Investor which fees or commissions shall be the
sole
responsibility of such Investor) made by or on behalf of other persons for
fees
of a type contemplated in this Section that may be due in connection with the
transactions contemplated by this Agreement.
(q) Certain
Registration Matters.
Assuming the accuracy of the Investor’s representations and warranties set forth
in this Agreement and the Transaction Documents and the representations and
warranties made by all other purchasers of the Units in the Offering, no
registration under the Securities Act is required for the offer and sale of
the
Investor’s Units by the Company to the Investor hereunder.
(r) Quotation
Requirements.
The
Company is, and has no reason to believe that it will not in the foreseeable
future continue to be, in compliance with the requirements for the quotation
of
the Common Stock on the NASD Over the Counter Bulletin Board.
(s) Investment
Company.
Neither
the Company nor GoFish is, an “investment company” or an “affiliate” of, an
“investment company,” within the meaning of the Investment Company Act of 1940,
as amended.
(t) No
Additional Agreements.
The
Company and GoFish do not have any agreement or understanding with any other
purchasers of the Units in the Offering with respect to the transactions
contemplated by this Agreement on terms that differ substantially from those
set
forth in this Agreement.
(u) Disclosure.
The
Company and GoFish confirm that neither they nor any person acting on their
behalf has provided the Investor, or its agents or counsel, with any information
that the Company or GoFish believes would constitute material, non-public
information following the announcement of the Closing and the transactions
contemplated thereby. The Company understands and confirms that the Investor
will rely on the foregoing representations and covenants in effecting
transactions in securities of the Company. All disclosure provided to the
Investor regarding the Company and GoFish, their respective businesses and
the
transactions contemplated hereby, furnished by or on behalf of the Company
or,
as applicable, GoFish (including the Company’s and GoFish’s representations and
warranties set forth in this Agreement) are true and correct and do not contain
any untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements made therein, in light of the
circumstances under which they were made, not misleading.
8
5. Representations
and Warranties of the Investor.
In
order to induce the Company to enter into this Agreement, the Investor
represents and warrants to the Company and GoFish as follows:
(a) Authority.
If a
corporation, partnership, limited partnership, limited liability company, or
other form of entity, the Investor is duly organized or formed, as the case
may
be, validly existing, and in good standing under the laws of its jurisdiction
of
organization or formation, as the case may be. The Investor has all requisite
individual or entity right, power, and authority to execute, deliver, and
perform this Agreement.
(b) Enforceability.
The
execution, delivery, and performance of this Agreement by the Investor have
been
duly authorized by all requisite partnership, corporate or other entity action,
as the case may be. This Agreement has been duly executed and delivered by
the
Investor, and, upon its execution by the Company, shall constitute the legal,
valid, and binding obligation of the Investor, enforceable in accordance with
its terms, except to the extent that its enforceability is limited by
bankruptcy, insolvency, reorganization, moratorium, or other laws relating
to or
affecting the enforcement of creditors’ rights generally and by general
principles of equity.
(c) No
Violations.
The
execution, delivery, and performance of this Agreement by the Investor do not
and will not, with or without the passage of time or the giving of notice,
result in the breach of, or constitute a default, cause the acceleration of
performance, or require any consent under, or result in the creation of any
lien, charge or encumbrance upon any property or assets of the Investor pursuant
to, any material instrument or agreement to which the Investor is a party or
by
which the Investor or its properties may be bound or affected, and, do not
or
will not violate or conflict with any provision of the articles of incorporation
or bylaws, partnership agreement, operating agreement, trust agreement, or
similar organizational or governing document of the Investor, as applicable.
(d) Knowledge
of Investment and its Risks.
The
Investor has knowledge and experience in financial and business matters as
to be
capable of evaluating the merits and risks of Investor’s investment in the
Units. The Investor understands that an investment in the Company represents
a
high degree of risk and there is no assurance that the Company’s business or
operations will be successful. The Investor has considered carefully the risks
attendant to an investment in the Company, and that, as a consequence of such
risks, the Investor could lose Investor’s entire investment in the
Company.
(e) Investment
Intent.
The
Investor hereby represents and warrants that: (i) the Investor’s Units are being
acquired for investment for the Investor’s own account, and not as a nominee or
agent and not with a view to the resale or distribution of all or any part
of
the Investor’s Units, and the Investor has no present intention of selling,
granting any participation in, or otherwise distributing any of the Investor’s
Units within the meaning of the Securities Act; (ii) the Investor’s Units are
being acquired in the ordinary course of the Investor’s business; and (iii) the
Investor does not have any contracts, understandings, agreements, or
arrangements, directly or indirectly, with any person and/or entity to
distribute, sell, transfer, or grant participations to such person and/or entity
with respect to, any of the Investor’s Units. The Investor is not purchasing the
Investor’s Units as a result of any advertisement, article, notice or other
communication regarding the Investor’s Units published in any newspaper,
magazine or similar media or broadcast over television or radio or presented
at
any seminar or any other general solicitation or general
advertisement.
9
(f) Investor
Status.
The
Investor is an “accredited investor” as that term is defined by Rule 501 of
Regulation D promulgated under the Securities Act and the information provided
by the Investor in the Investor Questionnaire, attached hereto as Appendix
A,
is
truthful, accurate, and complete. The Investor is not registered as a
broker-dealer under Section 15 of the Exchange Act or an affiliate of such
broker-dealer, except as otherwise indicated in the Investor
Questionnaire.
(g) Disclosure.
The
Investor has reviewed the information provided to the Investor by the Company
in
connection with the Investor’s decision to purchase the Investor’s Units,
including, but not limited to, the Company’s publicly available filings with the
Commission and the information contained therein. The Company has provided
the
Investor with all the information that the Investor has requested in connection
with the decision to purchase the Investor’s Units. The Investor further
represents that the Investor has had an opportunity to ask questions and receive
answers from the Company regarding the business, properties, prospects, and
financial condition of the Company. All such questions have been answered to
the
full satisfaction of the Investor. Neither such inquiries nor any other
investigation conducted by or on behalf of the Investor or its representatives
or counsel shall modify, amend, or affect the Investor’s right to rely on the
truth, accuracy, and completeness of the disclosure materials and the Company’s
representations and warranties contained herein.
(h) No
Registration.
The
Investor understands that Investor may be required to bear the economic risk
of
Investor’s investment in the Company for an indefinite period of time. The
Investor further understands that: (i) neither the offering nor the sale of
the Investor’s Units has been registered under the Securities Act or any
applicable State Acts in reliance upon exemptions from the registration
requirements of such laws; (ii) the Investor’s Units must be held by the
Investor indefinitely unless the sale or transfer thereof is subsequently
registered under the Securities Act and any applicable State Acts, or an
exemption from such registration requirements is available; (iii) except as
set
forth in the Registration Rights Agreement, dated as of the date hereof, between
the Company and the Investor, the Company is under no obligation to register
any
of the shares of Common Stock underlying the Investor’s Units on the Investor’s
behalf or to assist the Investor in complying with any exemption from
registration; and (iv) the Company will rely upon the representations and
warranties made by the Investor in this Agreement and the Transaction Documents
in order to establish such exemptions from the registration requirements of
the
Securities Act and any applicable State Acts.
(i) Transfer
Restrictions.
The
Investor will not transfer any of the Investor’s Units or the shares of Common
Stock underlying the Investor’s Units or the Investor Warrants unless such
transfer is registered or exempt from registration under the Securities Act
and
such State Acts, and, if requested by the Company in the case of an exempt
transaction, the Investor has furnished an opinion of counsel reasonably
satisfactory to the Company that such transfer is so exempt. The Investor
understands and agrees that: (i) the certificates evidencing the shares of
Common Stock underlying the Investor’s Units and the Investor’s Warrants will
bear appropriate legends indicating such transfer restrictions placed upon
the
Units and shares of Common Stock and Investor Warrants; (ii) the Company shall
have no obligation to honor transfers of any of the Investor’s Units, Investor
Warrants, or shares of Common Stock underlying the Investor’s Units or Investor
Warrants in violation of such transfer restrictions; and (iii) the Company
shall
be entitled to instruct any transfer agent or agents for the securities of
the
Company to refuse to honor such transfers.
10
(j) No
Solicitation.
The
Investor: (i) did not receive or review any advertisement, article, notice
or
other communication published in a newspaper or magazine or similar media or
broadcast over television or radio, whether closed circuit, or generally
available, with respect to the Units; or (ii) was not solicited by any person,
other than by representatives of the Company, with respect to a purchase of
the
Units.
(k) Principal
Address.
The
Investor’s principal residence, if an individual, or principal executive office,
if an entity, is set forth on the signature page of this Subscription
Agreement.
(l) Reliance
by the Company.
The
Investor acknowledges that the Company will be relying on the representations
and warranties of the Investor made above for purposes of compliance with all
applicable securities laws and any applicable exemptions from registration
requirements thereunder, and otherwise, and consents to the Company’s reliance
on such representations and warranties.
6. Independent
Nature of Investor’s Obligations and Rights.
The
obligations of the Investor under this Agreement and the Transaction Documents
are several and not joint with the obligations of any other purchaser of the
Units in the Offering, and the Investor shall not be responsible in any way
for
the performance of the obligations of any other purchaser of the Units in the
Offering under any Transaction Document. The decision of the Investor to
purchase the Investor’s Units pursuant to the Transaction Documents has been
made by the Investor independently of any other purchaser of the Units in the
Offering. Nothing contained herein or in any Transaction Document, and no action
taken by any purchaser of Units pursuant thereto, shall be deemed to constitute
such purchasers as a partnership, an association, a joint venture, or any other
kind of entity, or create a presumption that the purchasers of the Units are
in
any way acting in concert or as a group with respect to such obligations or
the
transactions contemplated by the Transaction Documents. The Investor
acknowledges that no other purchaser of the Units has acted as agent for the
Investor in connection with making its investment hereunder and that no other
purchaser of the Units will be acting as agent of the Investor in connection
with monitoring its investment in the Units or enforcing its rights under the
Transaction Documents. The Investor shall be entitled to independently protect
and enforce its rights, including without limitation the rights arising out
of
this Agreement or out of the other Transaction Documents, and it shall not
be
necessary for any other purchaser of the Units to be joined as an additional
party in any proceeding for such purpose.
11
7. Prospectus
Delivery Requirement.
The
Investor hereby covenants with the Company not to make any sale of the
Investor’s Units without complying with the provisions hereof and of the
Registration Rights Agreement, and without effectively causing the prospectus
delivery requirement under the Securities Act to be satisfied (unless the
Investor is selling in a transaction not subject to the prospectus delivery
requirement).
8. Shareholder
Approval.
The
Company represents and warrants to the Investor that a vote of the stockholders
of the Company will not be required to approve the issuance of the Investor’s
Units.
9. Indemnification
of Investor.
In
addition to the indemnity provided in the Registration Rights Agreement, the
Company will indemnify and hold the Investor and its directors, officers,
shareholders, members, managers, partners, employees and agents (each, an
“Investor
Party”)
harmless from any and all losses, liabilities, obligations, claims,
contingencies, damages, costs and expenses, including all judgments, amounts
paid in settlements, court costs, and reasonable attorneys’ fees, and costs of
investigation (collectively, “Losses”)
that
any such Investor Party may suffer or incur as a result of or relating to any
misrepresentation, breach, or inaccuracy of any representation, warranty,
covenant, or agreement made by the Company in any Transaction Document. In
addition to the indemnity contained herein, the Company will reimburse each
Investor Party for its reasonable legal and other expenses (including the cost
of any investigation, preparation, and travel in connection therewith) incurred
in connection therewith, as such expenses are incurred.
10. Non-Public
Information.
Subsequent to the Closing, the Company covenants and agrees that neither it
nor
any other person acting on its behalf will provide Investor or its agents or
counsel with any information that the Company believes constitutes material
non-public information, unless prior thereto the Investor shall have executed
a
written agreement regarding the confidentiality and use of such information.
11. Further
Assurances.
The
parties hereto will, upon reasonable request, execute and deliver all such
further assignments, endorsements, and other documents as may be necessary
in
order to perfect the purchase by the Investor of the Investor’s Units. In
addition, the Company agrees that it will do all such acts necessary to ensure
that Canadian residents holding shares will be able to trade such securities
without resale restrictions under Canadian securities legislation within four
months from the Merger Effective Date, including, if necessary, all acts in
order for the Company to become a reporting issuer in a Canadian province or
territory, which may include the filing and receipting of a prospectus by
Canadian securities regulatory authorities.
12. Entire
Agreement; No Oral Modification.
This
Agreement and the other Transaction Documents contain the entire agreement
among
the parties hereto with respect to the subject matter hereof and supersede
all
prior agreements and understandings with respect thereto and this Agreement
may
not be amended or modified except in a writing signed by both of the parties
hereto.
12
13. Binding
Effect; Benefits.
This
Agreement shall inure to the benefit of and be binding upon the parties hereto
and their respective heirs, successors, and assigns; however, nothing in this
Agreement, expressed or implied, is intended to confer on any other person
other
than the parties hereto, or their respective heirs, successors, or assigns,
any
rights, remedies, obligations, or liabilities under or by reason of this
Agreement.
14. Counterparts.
This
Agreement may be executed in any number of counterparts, for each of which
shall
be deemed to be an original and all of which together shall be deemed to be
one
and the same 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.
15. Governing
Law.
This
Agreement shall be governed by, and construed and enforced in accordance with,
the laws of the United States of America and the State of New York, 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.
16. Prevailing
Parties.
In any
action or proceeding brought to enforce any provision of this Agreement, or
where any provision hereof is validly asserted as a defense, the prevailing
party shall be entitled to receive and the nonprevailing party shall pay upon
demand reasonable attorneys’ fees in addition to any other remedy.
17. Notices.
All
communication hereunder shall be in writing and shall be mailed, delivered,
telegraphed or sent by facsimile or electronic mail, and such delivery shall
be
confirmed to the addresses as provided below:
if
to the
Investor:
to
the
address set forth on the signature page of this Agreement
if
to the
Company before the Closing Date:
GoFish
Corporation
00
Xxxx
00xx
Xxxxxx
Xxxxxxxxx,
XX X0X 0X0
Xxxxxx
Attention:
Xxxxxxx X. Xxxxxxx, President
13
with
copy
to:
Gottbetter
& Partners, LLP
000
Xxxxxxx Xxxxxx, 00xx
Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Xxxxxxx X. Xxxxxxx, Esq.
Facsimile:
(000) 000-0000
if
to
GoFish or to the Company after the Closing Date, to:
GoFish
Technologies, Inc.
000
Xxxxx
Xxxxxx, Xxxxx 000
Xxx
Xxxxxxxxx, XX 00000
Attention:
Xxxxxxx Xxxxxxx, CEO
Facsimile:
(000) 000-0000
with
a
copy to:
McGuireWoods
LLP
1345
Avenue of the Xxxxxxxx, 0xx
Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Xxxxx X. Xxxxx
Facsimile:
(000) 000-0000
18. Headings.
The
section headings herein are included for convenience only and are not to be
deemed a part of this Agreement.
[SIGNATURE
PAGES FOLLOW]
14
IN
WITNESS WHEREOF, the parties hereto have executed this Subscription Agreement
as
of the
date first written above.
| GOFISH CORPORATION | ||
| |
|
|
| By: | ||
|
Name:
|
Xxxxxxx X. Xxxxxxx |
|
| Its: | President | |
[SIGNATURE
PAGES OF GOFISH AND INVESTOR FOLLOW]
15
IN
WITNESS WHEREOF, the parties hereto have executed this Subscription Agreement
as
of the
date first written above.
| GOFISH TECHNOLOGIES, INC. | ||
| |
|
|
| By: | ||
| Name: |
Xxxxxxx Xxxxxxx |
|
| Its: | Chief Executive Officer | |
[SIGNATURE
PAGE OF INVESTOR FOLLOWS]
16
IN
WITNESS WHEREOF, the parties hereto have executed this Subscription Agreement
as
of the date first written above.
|
INVESTOR
(individual)
|
INVESTOR
(entity)
|
|
|
______________________________________
|
____________________________________
|
|
|
Signature
|
Name
of Entity
|
|
|
______________________________________
|
____________________________________
|
|
|
Print
Name
|
Signature
|
|
|
Address
of Principal Residence:
|
||
|
_____________________________________
|
Print
Name: __________________________
|
|
|
_____________________________________
|
||
|
_____________________________________
|
Title:
________________________________
|
|
|
Social
Security Number:
|
Address
of Executive Offices:
|
|
|
_____________________________________
|
||
|
_____________________________________
|
||
|
Telephone
Number:
|
_____________________________________
|
|
|
_____________________________________
|
_____________________________________
|
|
|
Facsimile
Number:
|
IRS
Tax Identification Number:
|
|
|
_____________________________________
|
__________________________________
|
|
|
Telephone
Number:
|
||
|
__________________________________
|
||
|
Facsimile
Number:
|
||
|
____________________________________
|
|
_________________ X
|
$1.50
|
=
|
$___________________
|
|
|
Number
of Units
|
Price
per Unit
|
Purchase
Price
|
||
|
Amount
to be paid by cash
|
$
|
|||
|
Amount
to be paid by surrender of GoFish Notes
|
$
|
|||
APPENDIX
A
Investor
Questionnaire
(See
Attached)
