Exhibit
4.4
NEITHER
THE SECURITIES REPRESENTED BY THIS CERTIFICATE NOR THE SECURITIES
INTO WHICH THESE SECURITIES ARE EXERCISABLE 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 EXERCISABLE 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 EXERCISABLE, 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.
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Right to
Purchase ____________ shares of Common Stock of GoFish Corporation
(subject to adjustment as provided herein)
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COMMON STOCK PURCHASE
WARRANT
No. 2008-A-___
Issue Date: _____________
GOFISH CORPORATION, a Nevada corporation (the
“Company”), hereby certifies that, for value received,
_____________________________________________________________________,
________________________________, Fax: _____________, or its
assigns (the “Holder”), is entitled, subject to the
terms set forth below, to purchase from the Company at any time
commencing one hundred and eighty-one (181) days after the Issue
Date (“Commencement Date”) and until 5:00 p.m., E.S.T
on April 18, 2013 (the “Expiration Date”), up to
____________ fully paid and nonassessable shares of Common Stock at
a per share purchase price of $1.75. The aforedescribed purchase
price per share, as adjusted from time to time as herein provided,
is referred to herein as the "Purchase Price." The number and
character of such shares of Common Stock and the Purchase Price are
subject to adjustment as provided herein. The Company may reduce
the Purchase Price for some or all of the Warrants (as defined in
the Subscription Agreement), temporarily or permanently, provided
such reduction is made as to all outstanding Warrants (as defined
in the Subscription Agreement) for all Holders of such Warrants.
Capitalized terms used and not otherwise defined herein shall have
the meanings set forth in that certain Subscription Agreement (the
“ Subscription Agreement ”), dated as
of April 18, 2008, entered into by the Company and the subscribers
identified on the signature page thereto.
As used herein the following terms, unless the
context otherwise requires, have the following respective
meanings:
(a) The term “Company” shall mean
GoFish Corporation, a Nevada corporation, and any corporation which
shall succeed or assume the obligations of GoFish Corporation
hereunder.
(b) The term “Common Stock” includes
(i) the Company's Common Stock, $0.001 par value per share, as
authorized on the date of the Subscription Agreement, and (ii) any
other securities into which or for which any of the securities
described in (i) may be converted or exchanged pursuant to a
plan of recapitalization, reorganization, merger, sale of assets or
otherwise.
(c) The term “Other Securities” refers
to any stock (other than Common Stock) and other securities of the
Company or any other person (corporate or otherwise) which the
holder of the Warrant at any time shall be entitled to receive, or
shall have received, on the exercise of the Warrant, in lieu of or
in addition to Common Stock, or which at any time shall be issuable
or shall have been issued in exchange for or in replacement of
Common Stock or Other Securities pursuant to Section 4 or
otherwise.
(d) The term “Warrant Shares” shall
mean the Common Stock issuable upon exercise of this
Warrant.
1. Exercise of Warrant .
1.1. Number of Shares Issuable upon
Exercise . From and after
the Commencement Date through and including the Expiration Date,
the Holder hereof shall be entitled to receive, upon exercise of
this Warrant in whole in accordance with the terms of
subsection 1.2 or upon exercise of this Warrant in part in
accordance with subsection 1.3, shares of Common Stock of the
Company, subject to adjustment pursuant to
Section 4.
1.2. Full Exercise . This Warrant may be exercised in full by the
Holder hereof by delivery of an original or facsimile copy of the
form of subscription attached as Exhibit A hereto (the
“Subscription Form”) duly executed by such Holder and
delivery within two days thereafter of payment, in cash, wire
transfer or by certified or official bank check payable to the
order of the Company, in the amount obtained by multiplying the
number of shares of Common Stock for which this Warrant is then
exercisable by the Purchase Price then in effect. The original
Warrant is not required to be surrendered to the Company until it
has been fully exercised.
1.3. Partial Exercise . This Warrant may be exercised in part (but
not for a fractional share) by delivery of a Subscription Form in
the manner and at the place provided in subsection 1.2 except
that the amount payable by the Holder on such partial exercise
shall be the amount obtained by multiplying (a) the number of
whole shares of Common Stock designated by the Holder in the
Subscription Form by (b) the Purchase Price then in effect. On
any such partial exercise, provided the Holder has surrendered the
original Warrant, the Company, at its expense, will forthwith issue
and deliver to or upon the order of the Holder hereof a new Warrant
of like tenor, in the name of the Holder hereof or as such Holder
(upon payment by such Holder of any applicable transfer taxes) may
request, the whole number of shares of Common Stock for which such
Warrant may still be exercised for the balance of.
1.4. Fair Market Value . Fair Market Value of a share of Common Stock
as of a particular date (the "Determination Date") shall
mean:
(a) If the Company's Common Stock is traded on an
exchange or is quoted on the NASDAQ Global Market, NASDAQ Global
Select Market, the NASDAQ Capital Market, the New York Stock
Exchange or the American Stock Exchange, LLC, then the average of
the closing sale prices of the Common Stock for the five (5)
Trading Days immediately prior to (but not including) the
Determination Date;
(b) If the Company's Common Stock is not traded on
an exchange or on the NASDAQ Global Market, NASDAQ Global Select
Market, the NASDAQ Capital Market, the New York Stock Exchange or
the American Stock Exchange, Inc., but is traded in the
over-the-counter market, then the average of the closing bid and
ask prices reported for the five (5) Trading Days immediately prior
to (but not including) the Determination Date;
(c) Except as provided in clause (d) below and
Section 3.1, if the Company's Common Stock is not publicly traded,
then as the Holder and the Company agree, or in the absence of such
an agreement, by arbitration in accordance with the rules then
standing of the American Arbitration Association, before a single
arbitrator to be chosen from a panel of persons qualified by
education and training to pass on the matter to be decided;
or
(d) If the Determination Date is the date of a
liquidation, dissolution or winding up, or any event deemed to be a
liquidation, dissolution or winding up pursuant to the Company's
charter, then all amounts to be payable per share to holders of the
Common Stock pursuant to the charter in the event of such
liquidation, dissolution or winding up, plus all other amounts to
be payable per share in respect of the Common Stock in liquidation
under the charter, assuming for the purposes of this clause
(d) that all of the shares of Common Stock then issuable upon
exercise of all of the Warrants are outstanding at the
Determination Date.
1.5. Company Acknowledgment . The Company will, at the time of the exercise
of the Warrant, upon the request of the Holder hereof, acknowledge
in writing its continuing obligation to afford to such Holder any
rights to which such Holder shall continue to be entitled after
such exercise in accordance with the provisions of this Warrant. If
the Holder shall fail to make any such request, such failure shall
not affect the continuing obligation of the Company to afford to
such Holder any such rights.
1.6. Delivery of Stock Certificates, etc. on
Exercise . The Company
agrees that, provided the full purchase price listed in the
Subscription Form is received by the Company as specified in
Section 1.2, the shares of Common Stock purchased upon exercise of
this Warrant shall be deemed to be issued to the Holder hereof as
the record owner of such shares as of the close of business on the
date on which delivery of a Subscription Form shall have occurred
and payment made for such shares as aforesaid. As soon as
practicable after the exercise of this Warrant in full or in part,
and in any event within three (3) business days thereafter
(“Warrant Share Delivery Date”), the Company at its
expense (including the payment by it of any applicable issue taxes)
will cause to be issued in the name of and delivered to the Holder
hereof, or as such Holder (upon payment by such Holder of any
applicable transfer taxes) may direct in compliance with applicable
securities laws, a certificate or certificates for the number of
duly and validly issued, fully paid and non-assessable shares of
Common Stock (or Other Securities) to which such Holder shall be
entitled on such exercise, plus, in lieu of any fractional share to
which such Holder would otherwise be entitled, the number of shares
of Common Stock to be issued will be rounded up to the nearest
whole share of Common Stock, together with any other stock or other
securities and property (including cash, where applicable) to which
such Holder is entitled upon such exercise pursuant to
Section 1 or otherwise. The Company understands that a delay
in the delivery of the Warrant Shares after the Warrant Share
Delivery Date could result in economic loss to the Holder. As
compensation to the Holder for such loss, the Company agrees to pay
(as liquidated damages and not as a penalty) to such Holder for
late issuance of Warrant Shares upon exercise of this Warrant the
proportionate amount of $100 per business day after the Warrant
Share Delivery Date for each $10,000 of Purchase Price of Warrant
Shares for which this Warrant is exercised which are not timely
delivered. The Company shall pay any payments incurred under this
Section in immediately available funds upon demand. Furthermore, in
addition to any other remedies which may be available to the
Holder, in the event that the Company fails for any reason to
effect delivery of the Warrant Shares by the Warrant Share Delivery
Date, the Holder may revoke all or part of the relevant Warrant
exercise by delivery of a notice to such effect to the Company,
whereupon the Company and the Holder shall each be restored to
their respective positions immediately prior to the exercise of the
relevant portion of this Warrant, except that the liquidated
damages described above shall be payable through the date notice of
revocation or rescission is given to the Company.
1.8 Buy-In . In addition to any other rights available to
the Holder, if the Company fails to deliver to the Holder the
Warrant Shares as required pursuant to this Warrant, within seven
(7) business days after the Warrant Share Delivery Date and the
Holder or a broker on the Holder’s behalf, purchases (in an
open market transaction or otherwise) shares of common stock to
deliver in satisfaction of a sale by such Holder of the Warrant
Shares which the Holder was entitled to receive from the Company (a
" Buy-In "), then the Company shall pay in cash to
the Holder (in addition to any remedies available to or elected by
the Holder) the amount by which (A) the Holder's total purchase
price (including brokerage commissions, if any) for the shares of
common stock so purchased exceeds (B) the aggregate Purchase Price
of the Warrant Shares required to have been delivered together with
interest thereon at a rate of 15% per annum, accruing until such
amount and any accrued interest thereon is paid in full (which
amount shall be paid as liquidated damages and not as a penalty).
For example, if a Holder purchases shares of Common Stock having a
total purchase price of $11,000 to cover a Buy-In with respect to
$10,000 of Purchase Price of Warrant Shares to have been received
upon exercise of this Warrant, the Company shall be required to pay
the Holder $1,000, plus interest. The Holder shall provide the
Company written notice indicating the amounts payable to the Holder
in respect of the Buy-In.
2. Cashless Exercise .
(a) From and after the Commencement Date through
and including the Expiration Date, if a registration statement (as
described in Section 11 of the Subscription Agreement)
(“Registration Statement”) is effective and the Holder
may sell its shares of Common Stock upon exercise hereof pursuant
to the Registration Statement, this Warrant may be exercisable in
whole or in part for cash only as set forth in Section 1 above.
From and after the Commencement Date through and including the
Expiration Date, if no such Registration Statement is available,
then payment upon exercise may be made at the option of the Holder
either in (i) cash, wire transfer or by certified or official
bank check payable to the order of the Company equal to the
applicable aggregate Purchase Price, (ii) by cashless exercise in
accordance with Section (b) below or (iii) by a
combination of any of the foregoing methods, for the number of
Common Stock specified in such form (as such exercise number shall
be adjusted to reflect any adjustment in the total number of shares
of Common Stock issuable to the holder per the terms of this
Warrant) and the holder shall thereupon be entitled to receive the
number of duly authorized, validly issued, fully-paid and
non-assessable shares of Common Stock (or Other Securities)
determined as provided herein.
(b) From and after the Commencement Date through
and including the Expiration Date, if no Registration Statement as
described in Section (a) above is available, subject to the
provisions herein to the contrary, if the Fair Market Value of one
share of Common Stock is greater than the Purchase Price (at the
date of calculation as set forth below), in lieu of exercising this
Warrant for cash, the holder may elect to receive shares equal to
the value (as determined below) of this Warrant (or the portion
thereof being cancelled) by delivery of a properly endorsed
Subscription Form delivered to the Company by any means described
in Section 13, in which event the Company shall issue to the holder
a number of shares of Common Stock computed using the following
formula:
X= Y
(A-B)
A
Where
X= the number of shares of Common Stock to be
issued to the holder
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Y=
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the number of
shares of Common Stock purchasable under the Warrant or, if only a
portion of the Warrant is being exercised
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