EXHIBIT
4.1
Warrant Certificate No.
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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.
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Dated: October
27, 2006
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Void After: October 27,
2011
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GOFISH
CORPORATION
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:
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.
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