This Warrant Agreement involves
Title: GOFISH CORPORATION
WARRANT TO PURCHASE COMMON STOCK
Governing Law: New York Date: 10/31/2006
Law Firm: McGuireWoods LLP
Warrant Certificate No. ___
NEITHER THE SECURITIES REPRESENTED BY THIS CERTIFICATE NOR THE SECURITIES ISSUABLE UPON THE EXERCISE OF THIS WARRANT HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR ANY STATE SECURITIES LAWS, AND NEITHER SUCH SECURITIES NOR ANY INTEREST THEREIN MAY BE OFFERED, SOLD, ASSIGNED OR OTHERWISE TRANSFERRED UNLESS (1) A REGISTRATION STATEMENT WITH RESPECT THERETO IS EFFECTIVE UNDER THE ACT AND ANY APPLICABLE STATE SECURITIES LAWS, OR (2) AN EXEMPTION FROM SUCH REGISTRATION EXISTS AND THE COMPANY RECEIVES AN OPINION OF COUNSEL TO THE HOLDER OF SUCH SECURITIES, WHICH COUNSEL AND OPINION ARE SATISFACTORY TO THE COMPANY, THAT SUCH SECURITIES MAY BE OFFERED, SOLD, PLEDGED, ASSIGNED OR TRANSFERRED IN THE MANNER CONTEMPLATED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT OR APPLICABLE STATE SECURITIES LAWS.
Dated: October 27, 2006
Void After: October 27, 2011
WARRANT TO PURCHASE COMMON STOCK
GoFish Corporation (f/k/a Unibio Inc.), a Nevada corporation (the “Company”), for value received on October 27, 2006 (the “ Effective Date ”), hereby issues to [ ] (the “ Holder ”) this Warrant (the “ Warrant ”) to purchase, [ ] shares (each such share as from time to time adjusted as hereinafter provided being a “ Warrant Share ” and all such shares being the “ Warrant Shares ”) of the Company’s Common Stock (as defined below), at the Exercise Price (as defined below), as adjusted from time to time as provided herein, on or before October 27, 2011 (the “ Expiration Date ”), all subject to the following terms and conditions. Unless otherwise defined in this Warrant, terms appearing in initial capitalized form shall have the meaning ascribed to them in that certain Subscription Agreement of even date herewith among the Company and the purchasers signatory thereto pursuant to which this Warrant was issued (the “ Subscription Agreement ”).
As used in this Warrant, (i) “ Business Day ” means any day other than Saturday, Sunday or any other day on which commercial banks in the City of New York, New York, are authorized or required by law or executive order to close; (ii) “ Common Stock ” means the common stock of the Company, $0.001 par value per share, including any securities issued or issuable with respect thereto or into which or for which such shares may be exchanged for, or converted into, pursuant to any stock dividend, stock split, stock combination, recapitalization, reclassification, reorganization or other similar event; (iii) “ Exercise Price ” means $1.75 per share of Common Stock, subject to adjustment as provided herein; (iv) “ Trading Day ” means any day on which the Common Stock is traded on the primary national or regional stock exchange on which the Common Stock is listed, or if not so listed, the NASD OTC Bulletin Board if quoted thereon is open for the transaction of business; and (v) “Affiliate” means any Person that, directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, a Person, as such terms are used and construed in Rule 144 promulgated under the Securities Act of 1933, as amended (the “Securities Act”).
1. DURATION AND EXERCISE OF WARRANTS
(a) Exercise Period . The Holder may exercise this Warrant in whole or in part on any Business Day on or before 5:00 P.M., Eastern Daylight Time, on the Expiration Date, at which time this Warrant shall become void and of no value. The Holder shall also exercise the Warrant earlier on the Mandatory Exercise Date in accordance with Section 1(b) if applicable, at which time this Warrant shall entitle the Holder only to the Warrant Shares applicable upon such exercise.
(b) Right of Mandatory Exercise by Company .
(i) If at any time from and after the SEC Effective Date (as defined in the Registration Rights Agreement), (i) the closing sales price of the Common Stock for each Trading Day of any 20 consecutive Trading Day period preceding the applicable Mandatory Exercise Eligibility Date equals or exceeds $4.50 per share (subject to equitable adjustment for stock splits, stock dividends, combinations, and capital reorganizations, as applicable), (ii) the Registration Statement has been effective for a period of 45 Trading Days and remains effective or the Holder would be entitled to sell the Warrant Shares upon the exercise of the Warrant pursuant to the Rule 144(k) promulgated under the Securities Act (i.e., including without any volume limitations), (iii) the Common Stock is listed on the New York Stock Exchange, the Amercan Stock Exchange, the NASDAQ Global Select Market or the NASDAQ Global Market, and (iv) the average daily trading volume of the Common Stock over such 20 consecutive Trading Day period equals or exceeds 2,000,000 shares (the “ Mandatory Exercise Eligibility Date ”), the Company shall have the right to require the Holder to exercise this Warrant in whole or in part, subject to Sections 1(b)(ii) and (iii) below, as designated in the Mandatory Exercise Notice (as defined below) into fully paid, validly issued and nonassessable shares of Common Stock in accordance with the terms of this Warrant at the Exercise Price as of the Mandatory Exercise Date (a “ Mandatory Exercise ”). The Company may exercise its right to require exercise under this Section 1(b) by delivering within not more than five (5) Trading Days after the Mandatory Exercise Eligibility Date a written notice thereof by facsimile and overnight courier to all, but not less than all, of the holders of Warrants and the Transfer Agent (the “ Mandatory Exercise Notice ” and the date all of the holders received such notice by facsimile is referred to as the “ Mandatory Exercise Notice Date ”). The Mandatory Exercise Notice shall be irrevocable. The Mandatory Exercise Notice shall state (i) the Trading Day selected for the Mandatory Exercise in accordance with this Section 1(b)(i), which Trading Day shall be at least twenty (20) Business Days but not more than sixty (60) Business Days following the Mandatory Exercise Notice Date (the “ Mandatory Exercise Date ”), (ii) the aggregate number of Warrant Shares subject to Mandatory Exercise from the Holder and all of the holders of the Warrants pursuant to this Section 1(b) and (iii) the number of Warrant Shares to be issued to such Holder on the Mandatory Exercise Date.
(ii) If the Company elects to cause exercise of any amount of this Warrant pursuant to Section 1(b)(i), then it must simultaneously take the same action in the same proportion with respect to all Warrants that contain a similar provision. All amounts exercised by the Holder after the Mandatory Exercise Notice Date shall reduce the amount of this Warrant required to be converted on the Mandatory Exercise Date. If the Company has elected a Mandatory Exercise, the mechanics of exercise set forth in Section 1(c) shall apply, to the extent applicable, as if the Company and the Transfer Agent had received from the Holder on the Mandatory Exercise Date an Exercise Notice with respect to the amount of this Warrant being converted pursuant to the Mandatory Exercise.
(iii) Notwithstanding anything to the contrary contained in this Section 1(b), the aggregate number of Warrants that the Company shall have the right to call at any given time under Section 1(b) shall be limited to a number of Warrants such that number of Warrant Shares issuable upon exercise of the Warrants so called does not exceed the total aggregate volume of the Company’s Common Stock traded over the 20 consecutive Trading Days prior to the Mandatory Exercise Eligibility Date. The Company shall not have the right to deliver more than one Mandatory Exercise Notice in any ninety (90) day period.
(c) Exercise Procedures .
(i) While this Warrant remains outstanding and exercisable in accordance with Section 1(a), in addition to the manner set forth in Section 1(c)(ii) below, the Holder may exercise this Warrant in whole or in part at any time and from time to time by:
(A) surrender of this Warrant, with a duly executed copy of the Notice of Exercise attached as Exhibit A , to the Secretary of the Company at its principal offices or at such other office or agency as the Company may specify in writing to the Holder; and
(B) payment of the then applicable Exercise Price per share multiplied by the number of Warrant Shares being purchased upon exercise of the Warrant (such amount, the “ Aggregate Exercise Price ”) made in the form of cash, or by certified check, bank draft or money order payable in lawful money of the United States of America or in the form of a Cashless Exercise to the extent permitted in Section 1(c)(ii) below.
(ii) At any time when a registration statement required by the Registration Rights Agreement covering the resale of the Warrant Shares by the Holder is not available after the first anniversary of the Effective Date, the Holder may, in its sole discretion, exercise all or any part of the Warrant in a “cashless” or “net-issue” exercise (a “ Cashless Exercise ”) by delivering to the Company (1) the Notice of Exercise and (2) the Warrant, pursuant to which the Holder shall surrender the right to receive upon exercise of this Warrant, a number of Warrant Shares having a value (as determined below) equal to the Aggregate Exercise Price, in which case, the number of Warrant Shares to be issued to the Holder upon such exercise shall be calculated using the following formula:
X = Y * (A - B)
with: X = the number of Warrant Shares to be issued to the Holder
Y = the number of Warrant Shares with respect to which the Warrant is being exercised
A = the fair value per share of Common Stock on the date of exercise of this Warrant
B = the then-current Exercise Price of the Warrant
Solely for the purposes of this paragraph, “fair value” shall be determined either (A) reasonably and in good faith by the Board of Directors of the Company as of the date which the Notice of Exercise is deemed to have been sent to the Company, or (B) as the average of the closing sales prices, as quoted on the primary national or regional stock exchange on which the Common Stock is listed, or, if not listed, the NASD OTC Bulletin Board if quoted thereon, on the twenty (20) trading days immediately preceding the date on which the Notice of Exercise is deemed to have been sent to the Company, whichever of (A) or (B) is greater.
(iii) Upon the exercise of this Warrant in compliance with the provisions of this Section 1(c) or pursuant to a Mandatory Exercise Notice in accordance with Section 1(b), the Company shall promptly issue and cause to be delivered to the Holder a certificate for the Warrant Shares purchased by the Holder. Each exercise of this Warrant shall be effected immediately prior to the close of business on the date (the “ Date of Exercise ”) which (x) the conditions set forth in Section 1(b) have been satisfied in connection with a Mandatory Exercise Notice or (y) the conditions set forth in Section 1(c) have been satisfied, as the case may be. On or before the first Business Day following the date on which the Company has received each of the Exercise Notice and the Aggregate Exercise Price (or notice of a Cashless Exercise in accordance with Section 1(c)(ii)) (the “ Exercise Delivery Documents ”), the Company shall transmit by facsimile an acknowledgment of confirmation of receipt of the Exercise Delivery Documents to the Holder and the Company’s transfer agent (the “ Transfer Agent ”). On or before the third Business Day following the date on which the Company has received all of the Exercise Delivery Documents (the “ Share Delivery Date ”), the Company shall (X) provided that the Transfer Agent is participating in The Depository Trust Company (“ DTC ”) Fast Automated Securities Transfer Program, upon the request of the Holder, credit such aggregate number of shares of Common Stock to which the Holder is entitled pursuant to such exercise to the Holder’s or its designee’s balance account with DTC through its Deposit Withdrawal Agent Commission system, or (Y) if the Transfer Agent is not participating in the DTC Fast Automated Securities Transfer Program, issue and dispatch by overnight courier to the address as specified in the Exercise Notice, a certificate, registered in the Company’s share register in the name of the Holder or its designee, for the number of shares of Common Stock to which the Holder is entitled pursuant to such exercise. Upon delivery of the Exercise Notice and Aggregate Exercise Price referred to in Section 1(c)(i)(A) above or notification to the Company of a Cashless Exercise referred to in Section 1(c)(ii), the Holder shall be deemed for all corporate purposes to have become the holder of record of the Warrant Shares with respect to which this Warrant has been exercised, irrespective of the date of delivery of the certificates evidencing such Warrant Shares. If this Warrant is submitted in connection with any exercise pursuant to Section 1(a) and the number of Warrant Shares represented by this Warrant submitted for exercise is greater than the actual number of Warrant Shares being acquired upon such an exercise, then the Company shall as soon as practicable and in no event later than three (3) Business Days after any exercise and at its own expense, issue a new Warrant (in accordance with Section 1(c)) of like tenor representing the right to purchase the number of Warrant Shares purchasable immediately prior to such exercise under this Warrant, less the number of Warrant Shares with respect to which this Warrant is exercised. No fractional shares of Common Stock are to be issued upon the exercise of this Warrant, but rather the number of shares of Common Stock to be issued shall be rounded up to the nearest whole number. The Company shall pay any and all taxes which may be payable with respect to the issuance and delivery of Warrant Shares upon exercise of this Warrant.
(iv) If the Company shall fail for any reason or for no reason to issue to the Holder, within three (3) Business Days of receipt of the Exercise Delivery Documents, a certificate for the number of shares of Common Stock to which the Holder is entitled and register such shares of Common Stock on the Company’s share register or to credit the Holder’s balance account with DTC for such number of shares of Common Stock to which the Holder is entitled upon the Holder’s exercise of this Warrant, and if on or after such Business Day the Holder purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by the Holder of shares of Common Stock issuable upon such exercise that the Holder anticipated receiving from the Company (a “ Buy-In ”), then the Company shall, within three (3) Business Days after the Holder’s request and in the Holder’s discretion, either (i) pay cash to the Holder in an amount equal to the Holder’s total purchase price (including brokerage commissions, if any) for the shares of Common Stock so purchased (the “ Buy-In Price ”), at which point the Company’s obligation to deliver such certificate (and to issue such shares of Common Stock) shall terminate, or (ii) promptly honor its obligation to deliver to the Holder a certificate or certificates representing such shares of Common Stock and pay cash to the Holder in an amount equal to the excess (if any) of the Buy-In Price over the product of (A) such number of shares of Common Stock, times (B) the closing bid price on the date of exercise.
(c) Partial Exercise . This Warrant shall be exercisable, either in its entirety or, from time to time, for part only of the number of Warrant Shares referenced by this Warrant. If this Warrant is exercised in part, the Company shall issue, at its expense, a new Warrant, in substantially the form of this Warrant, referencing such reduced number of Warrant Shares which remain subject to this Warrant.
(d) Disputes . In the case of a dispute as to the determination of the Exercise Price or the arithmetic calculation of the Warrant Shares, the Company shall promptly issue to the Holder the number of Warrant Shares that are not disputed and resolve such dispute in accordance with Section 15.
2. ISSUANCE OF WARRANT SHARES
(a) The Company covenants that all Warrant Shares will, upon issuance in accordance with the terms of this Warrant, be (i) duly authorized, fully paid and non-assessable, and (ii) free from all liens, charges and security interests, with the exception of claims arising through the acts or omissions of any Holder and except as arising from applicable Federal and state securities laws.
(b) The Company shall register this Warrant upon records to be maintained by the Company for that purpose in the name of the record holder of such Warrant from time to time. The Company may deem and treat the registered Holder of this Warrant as the absolute owner thereof for the purpose of any exercise thereof, any distribution to the Holder thereof and for all other purposes.
(c) The Company will not, by amendment of its certificate of incorporation, by-laws or through any reorganization, transfer of assets, consolidation, merger, dissolution, issue or sale of securities or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms to be observed or performed hereunder by the Company, but will at all times in good faith assist in the carrying out of all the provisions of this Warrant and in the taking of all the action as may be necessary or appropriate in order to protect the rights of the Holder to exercise this Warrant, or against impairment of such rights.
3. ADJUSTMENTS OF EXERCISE PRICE, NUMBER AND TYPE OF WARRANT SHARES
(a) The Exercise Price and the number of shares purchasable upon the exercise of this Warrant shall be subject to adjustment from time to time upon the occurrence of certain events described in this Section 3(a).
(i) Subdivision or Combination of Stock . In case the Company shall at any time subdivide (whether by way of stock dividend, stock split or otherwise) its outstanding shares of Common Stock into a greater number of shares, the Exercise Price in effect immediately prior to such subdivision shall be proportionately reduced and the Warrant Shares shall be proportionately increased, and conversely, in case the outstanding shares of Common Stock of the Company shall be combined (whether by way of stock combination, reverse stock split or otherwise) into a smaller number of shares, the Exercise Price in effect immediately prior to such combination shall be proportionately increased and the number of Warrant Shares shall be proportionately decreased. The Exercise Price and the Warrant Shares, as so adjusted, shall be readjusted in the same manner upon the happening of any successive event or events described in this Section 3(a)(i).
(ii) Dividends in Stock, Property, Reclassification . If at any time, or from time to time, the Holders of Common Stock (or any shares of stock or other securities at the time receivable upon the exercise of this Warrant) shall have received or become entitled to receive, without payment therefore:
(A) any shares o