NEITHER
THE SECURITIES REPRESENTED BY THIS NOTE NOR THE SECURITIES INTO
WHICH THESE SECURITIES ARE CONVERTIBLE HAVE BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE
SECURITIES LAWS. THESE SECURITIES AND THE SECURITIES INTO WHICH
THESE SECURITIES ARE CONVERTIBLE MAY NOT BE OFFERED FOR SALE, SOLD,
TRANSFERRED OR ASSIGNED IN THE ABSENCE OF (A) AN EFFECTIVE
REGISTRATION STATEMENT FOR THESE SECURITIES OR THE SECURITIES INTO
WHICH THESE SECURITIES ARE CONVERTIBLE, AS APPLICABLE, UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR (B) AN OPINION OF COUNSEL
REASONABLY SATISFACTORY TO GOFISH CORPORATION THAT REGISTRATION IS
NOT REQUIRED UNDER SAID ACT.
THIS
NOTE IS SUBORDINATED TO ANY PRESENT OR FUTURE INDEBTEDNESS OWING
FROM THE MAKER TO ANY OF THE HOLDERS OF THE 6% SENIOR CONVERTIBLE
PROMISSORY NOTES DUE JUNE 8, 2010 ORIGINALLY ISSUED BY GOFISH
CORPORATION ON JUNE 8, 2007 AND SUCH HOLDERS’ ASSIGNS, AND
MAY BE ENFORCED ONLY IN ACCORDANCE WITH THAT CERTAIN SUBORDINATION
AGREEMENT DATED APRIL 18, 2008 WITH SUCH
HOLDERS.
Principal Amount:
$____________
|
Issue Date:
_______________
|
|
Purchase Price: $___________
|
|
UNSECURED CONVERTIBLE
NOTE DUE JUNE 8, 2010
FOR VALUE
RECEIVED, GOFISH CORPORATION, a Nevada corporation (hereinafter
called “Borrower”), hereby promises to pay to
____________________________________________________
_______________________________________, Fax: _______________ (the
“Holder”), without demand, the sum of
_________________________________ Dollars ($________), with simple
and unpaid interest thereon, on June 8, 2010 (the “Maturity
Date”), if not paid sooner.
This Note has been entered into pursuant to the
terms of a subscription agreement between the Borrower, the Holder
and certain other holders (the “Other Holders”) of the
Borrower’s convertible promissory notes (the “Other
Notes”), dated as of even date herewith (the
“Subscription Agreement”). Unless otherwise separately
defined herein, all capitalized terms used in this Note shall have
the same meaning as is set forth in the Subscription Agreement. The
following terms shall apply to this Note:
ARTICLE
I
GENERAL
PROVISIONS
1.1 Interest Rate . Commencing one year after the Issue Date,
simple interest payable on the unpaid and unconverted principal
amount then outstanding under this Note shall accrue at the annual
rate of fifteen percent (15%). Accrued interest will be payable at
the election of the Holder on any one or more Conversion Dates (as
defined in Section 2.1) and on the Maturity Date, accelerated or
otherwise, when the principal and remaining accrued but unpaid
interest shall be due and payable. Interest will be payable in cash
or, at the election of the Holder, by the Borrower’s delivery
of Common Stock valued at the Conversion Price then in effect on
the day such interest payment is due.
1.2 Default Interest Rate . The Borrower shall not have any grace period
to pay any monetary amounts due under this Note. After the Maturity
Date, (accelerated or otherwise), and during the pendency of an
Event of Default (as defined in Article III) a default interest
rate of eighteen percent (18%) per annum shall apply to the amounts
owed hereunder.
1.3. Conversion Privileges . The conversion rights of the Holder as set
forth in Article II of this Note shall commence one hundred and
eighty one (181) days after the Issue Date and shall remain in full
force and effect until the Note is paid or converted in full
regardless of the occurrence of an Event of Default. The unpaid and
unconverted principal amount then outstanding under this Note and
the remaining accrued but unpaid interest shall be payable in full
on the Maturity Date, unless previously paid or converted into
Common Stock in accordance with Article II hereof.
ARTICLE
II
CONVERSION
RIGHTS
The Holder shall have the right to convert the
entire unpaid and unconverted principal amount and interest then
outstanding under this Note into shares of the Borrower’s
Common Stock as set forth below.
2.1. Voluntary Conversion into the Borrower’s
Common Stock .
(a) The Holder shall have the right, from and after
181 days after the Issue Date and then at any time until this Note
is fully paid or converted, to convert any portion of the unpaid
and unconverted principal amount then outstanding under this Note
and accrued interest, at the election of the Holder (the date of
giving of such notice of conversion being a “Conversion
Date”) into fully paid and nonassessable shares of Common
Stock as such stock exists on the date of issuance of this Note, or
any shares of capital stock of Borrower into which such Common
Stock shall hereafter be changed or reclassified, at the conversion
price as defined in Section 2.1(b) hereof (the “Conversion
Price”), determined as provided herein. Upon delivery to the
Borrower of a completed Notice of Conversion, a form of which is
annexed hereto, Borrower shall issue and deliver to the Holder
within three (3) business days after the Conversion Date (such
third day being the “Delivery Date”) that number of
shares of Common Stock for the portion of the Note converted in
accordance with the foregoing. The number of shares of Common Stock
to be issued upon each conversion of this Note shall be determined
by dividing that portion of the principal amount of the Note (and
any interest) to be converted, by the Conversion Price.
(b) Subject to adjustment as provided for in Section
2.1(c) hereof, the Conversion Price per share of Common Stock shall
be $2.06 (“Conversion Price”).
(c) The Conversion Price and the number and kind of
shares or other securities to be issued upon conversion of this
Note as determined pursuant to Section 2.1(a) hereof, shall be
subject to adjustment from time to time upon the happening of
certain events while this conversion right remains outstanding, as
follows:
A. Merger, Sale of Assets, etc
. If the Borrower at any time shall
consolidate with or merge into or sell or convey all or
substantially all its assets to any other corporation, this Note,
as to the unpaid and unconverted principal amount then outstanding
under this Note and accrued interest thereon, shall thereafter be
deemed to evidence the right to purchase such number and kind of
shares or other securities and property as would have been issuable
or distributable on account of such consolidation, merger, sale or
conveyance, upon or with respect to the securities subject to the
conversion or purchase right immediately prior to such
consolidation, merger, sale or conveyance. The foregoing provision
shall similarly apply to successive transactions of a similar
nature by any such successor or purchaser. Without limiting the
generality of the foregoing, the anti-dilution provisions of this
Section shall apply to such securities of such successor or
purchaser or surviving entity of the surviving corporation after
any such consolidation, merger, sale or conveyance.
B. Reclassification, etc . If the Borrower at any time shall, by
reclassification or otherwise, change the Common Stock into the
same or a different number of securities of any class or classes of
the Borrower’s capital stock that may be issued or
outstanding, this Note, as to the unpaid and unconverted principal
amount then outstanding under this Note and accrued interest
thereon, shall thereafter be deemed to evidence the right to
purchase an adjusted number of such securities and kind of
securities as would have been issuable as the result of such change
with respect to the shares of Common Stock subject to the
conversion of this Note immediately prior to such reclassification
or other change.
C. Stock Splits, Combinations and
Dividends . If the shares
of Common Stock are subdivided or combined into a greater or
smaller number of shares of Common Stock, or if a dividend is paid
on the Common Stock in shares of Common Stock, the Conversion Price
shall be proportionately reduced in case of subdivision of shares
or stock dividend or proportionately increased in the case of
combination of shares, in each such case by the ratio which the
total number of shares of Common Stock outstanding immediately
after such event bears to the total number of shares of Common
Stock outstanding immediately prior to such event.
D. Share Issuance . So long as this Note is outstanding, if the
Borrower shall issue or agree to issue any shares of Common Stock
other than with respect to any Excepted Issuances for a
consideration less than the Conversion Price in effect at the time
of such issue, then, and thereafter successively upon each such
issue, the Conversion Price shall be reduced to such other lower
issue price. For purposes of this adjustment, the issuance of any
security carrying the right to convert such security into shares of
Common Stock or of any warrant, right or option to purchase Common
Stock shall result in an adjustment to the Conversion Price upon
the issuance of the above-described security and again upon the
issuance of shares of Common Stock upon exercise of such conversion
or purchase rights if such issuance is at a price lower than the
then applicable Conversion Price. The reduction of the Conversion
Price described in this paragraph is in addition to other rights of
the Holder described in this Note and the Subscription
Agreement.
(d) Whenever the Conversion Price is adjusted
pursuant to Section 2.1(c) above, the Borrower shall promptly
provide notice to the Holder setting forth the Conversion Price
after such adjustment and setting forth a statement of the facts
requiring such adjustment.
(e) During the period that the conversion right
under this Note remains outstanding, the Borrower will reserve from
its authorized and unissued shares of Common Stock, the number of
shares of Common Stock during the time periods and in the amounts
described in the Subscription Agreement. The Borrower represents
that upon issuance, such shares of Common Stock will be duly and
validly issued, fully paid and non-assessable. The Borrower agrees
that its issuance of this Note shall constitute full authority to
its officers, agents, and transfer agents who are charged with the
duty of executing and issuing stock certificates to execute and
issue the necessary certificates for shares of the Borrower’s
Common Stock upon the conversion of this Note.
2.2 No Fractional Shares . No fractional shares of Common Stock shall be
issued upon conversion of this Note. If any fraction of a share of
Common Stock would, except for the provisions of this Section, be
issuable upon conversion of this Note or payment of interest
hereon, the number of shares of Common Stock to be issued will be
rounded up to the nearest whole share.
2.3 Method of Conversion . This Note may be converted by the Holder in
whole or in part as described in Section 2.1(a) hereof. Upon
partial conversion of this Note, a new Note containing the same
date and provisions of this Note shall, at the request of the
Holder, be issued by the Borrower to the Holder for the principal
balance of this Note and interest, in each case, which shall not
have been converted or paid, provided an original or reissued Note
shall have been delivered to the Borrower.
2.4 Maximum Conversion . The Holder shall not be entitled to convert
on a Conversion Date that amount of the Note in connection with
that number of shares of Common Stock which would be in excess of
the sum of (i) the number of shares of Common Stock beneficially
owned by the Holder and its affiliates on a Conversion Date, and
(ii) the number of shares of Common Stock issuable upon the
conversion of the Note with respect to which the determination of
this prov
