EXHIBIT 10.2
GOFISH CORPORATION
WARRANT TO PURCHASE COMMON
STOCK
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Warrant No.
_______
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Dated: December __,
2008
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GoFish Corporation, a Nevada corporation (the
“ Company ”), hereby certifies that, for value
received, ____________________ or its registered assigns (the
“ Holder ”), is entitled to purchase from the
Company up to a total of _____________ shares of common stock,
$0.001 par value per share (the “ Common Stock
”), of the Company (each such share, a “ Warrant
Share ” and all such shares, the “ Warrant
Shares ”) at an exercise price equal to $0.20 per share
(as adjusted from time to time as provided in Section 7 ,
the “ Exercise Price ”), at any time and from
time to time, in whole or in part, on or after the date hereof
through and including December 2, 2013 (the “ Expiration
Date ”), and subject to the following terms and
conditions.
1. Registration of Warrant . The Company shall register this Warrant, upon
records to be maintained by the Company for that purpose (the
“ Warrant Register ”), in the name of the record
Holder hereof from time to time. The Company may deem and treat the
registered Holder of this Warrant as the absolute owner hereof for
the purpose of any exercise hereof or any distribution to the
Holder, and for all other purposes, absent actual notice to the
contrary.
2. Registration of Transfers
. Subject to compliance with
applicable federal and state securities laws, any portion of this
Warrant may be transferred, and the Company shall register such
transfer in the Warrant Register, upon surrender of this Warrant,
with the Form of Assignment attached hereto duly completed and
signed, to the Company at its address specified herein. Upon any
such registration or transfer, a new warrant to purchase Common
Stock, in substantially the form of this Warrant (any such new
warrant, a “ New Warrant ”), evidencing the
portion of this Warrant so transferred shall be issued to the
transferee and a New Warrant evidencing the remaining portion of
this Warrant not so transferred, if any, shall be issued to the
transferring Holder. The acceptance of the New Warrant by the
transferee thereof shall be deemed the acceptance by such
transferee of all of the rights and obligations of a holder of a
Warrant.
3. Exercise and Duration of Warrant
.
(a) This Warrant shall be exercisable by the
registered Holder at any time and from time to time, in whole or in
part, on or after December 3, 2008, to and including the Expiration
Date. At 5:00 P.M., New York City time on the Expiration Date, the
portion of this Warrant not exercised prior thereto shall be and
become void and of no value.
(b) A Holder may exercise this Warrant by delivering
to the Company (i) an exercise notice, in the form attached hereto
(the “ Exercise Notice ”), appropriately
completed and duly signed, and (ii) payment of the Exercise
Price for the number of Warrant Shares as to which this Warrant is
being exercised, and the date such items are delivered to the
Company (as determined in accordance with the notice provisions
hereof) is an “ Exercise Date .”
(c) This Warrant may also be exercised at such time
by means of a “cashless exercise” in which the Holder
shall be entitled to receive a certificate for the number of
Warrant Shares equal to the quotient obtained by dividing [(A-B)
(X)] by (A), where:
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(A)
=
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the VWAP on the
Trading Day immediately preceding the date of such
election;
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(B)
=
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the Exercise
Price of this Warrant, as adjusted; and
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(X)
=
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the number of
Warrant Shares issuable upon exercise of this Warrant in accordance
with the terms of this Warrant by means of a cash exercise rather
than a cashless exercise.
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(d) For the purposes of this Agreement, the
following definitions shall apply:
(i) “ Trading Day ” means a day
on which the Common Stock is traded on a Trading Market.
(ii) “ Trading Market ” means the
following markets or exchanges on which the Common Stock is listed
or quoted for trading on the date in question: the American Stock
Exchange, the New York Stock Exchange, the Nasdaq Capital Market,
the Nasdaq Global Market, the Nasdaq Global Select Market or the
OTC Bulletin Board.
(iii) “ VWAP ” means, for any
date, the price determined by the first of the following clauses
that applies: (a) if the Common Stock is then listed or quoted on a
Trading Market, the daily volume weighted average price of the
Common Stock for such date (or the nearest preceding date) on the
primary Trading Market on which the Common Stock is then listed or
quoted as reported by Bloomberg Financial L.P. (based on a Trading
Day from 9:30 a.m. Eastern Time to 4:02 p.m. Eastern Time); (b) if
the Common Stock is not then listed or quoted on a Trading Market
and if prices for the Common Stock are then reported in the
“Pink Sheets” published by the Pink Sheets, LLC (or a
similar organization or agency succeeding to its functions of
reporting prices), the most recent bid price per share of the
Common Stock so reported; or (c) in all other cases, the fair
market value of a share of Common Stock as determined by a
nationally recognized-independent appraiser selected in good faith
by the Holder and reasonably acceptable to the Company.
(e) Notwithstanding anything to the contrary
contained herein, unless the Holder otherwise notifies the Company,
this Warrant shall be deemed to be automatically exercised using
the “cashless exercise” method pursuant to
Section 3(c) (regardless of whether there is an effective
Registration Statement on Form S-1 or Form S-3 or similar form
registering, or a current prospectus available for, the issuance of
the Warrant Shares) immediately prior to the time on the Expiration
Date at which this Warrant ceases to be exercisable; provided
however, that in the event that the cashless exercise formula set
forth in Section 3(c) yields a result that is less than or equal to
zero, then the unexercised portion of this Warrant shall
automatically terminate and become void.
4. Delivery of Warrant Shares
.
(a) Upon exercise of this Warrant, the Company shall
promptly (but in no event later than three Trading Days after the
Exercise Date) issue or cause to be issued and cause to be
delivered to or upon the written order of the Holder and in such
name or names as the Holder may designate, a certificate for the
Warrant Shares issuable upon such exercise, free of restrictive
legends. If the Holder provides or previously provided the
necessary account information to the Company, and if there is an
effective Registration Statement on Form S-1 or Form S-3 (or
similar form) registering the resale of the Warrants Shares by the
Holder or the Warrant Shares are eligible for resale without volume
or manner-of-sale limitations pursuant to Rule 144 of the
Securities Act of 1933, as amended (the “ Securities
Act ”), then the Company shall issue and deliver such
Warrant Shares in a balance account of the Holder with the
Depository Trust Company through its Deposit Withdrawal Agent
Commission System. The Holder, or any person so designated by the
Holder to receive Warrant Shares, shall be deemed to have become
holder of record of such Warrant Shares as of the Exercise Date.
The Company shall, upon request of the Holder, use commercially
reasonable efforts to deliver Warrant Shares hereunder
electronically through the Depository Trust Corporation or another
established clearing corporation performing similar functions if
there is an effective Registration Statement on Form S-1 or Form
S-3 (or similar form) registering the resale of the Warrants Shares
by the Holder or the Warrant Shares are eligible for resale without
volume or manner-of-sale limitations pursuant to Rule 144 of the
Securities Act.
(b) This Warrant is exercisable on or after December
3, 2008, either in its entirety or, from time to time, for a
portion of the number of Warrant Shares. Upon surrender of this
Warrant following one or more partial exercises, the Company shall
issue or cause to be issued, at its expense, a New Warrant
evidencing the right to purchase the remaining number of Warrant
Shares.
(c) In addition to any other rights available to the
Holder, if the Company fails to deliver to the Holder a certificate
representing Warrant Shares by the third Trading Day after the date
on which delivery of such certificate is required by this Warrant,
and if after such third Trading Day the Holder purchases (in an
open market transaction or otherwise), or the Holder’s broker
purchases, shares of Common Stock to deliver in satisfaction of a
sale by the Holder of Warrant Shares that the Holder was entitled
to receive from the Company (a “ Buy-In ”), then
the Company shall, promptly (and in any event not later than three
Trading Days after the Holder’s request) and in the
Holder’s discretion, either (i) pay cash to the Holder 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 Warrant Shares) shall terminate, or (ii) promptly honor
its obligation to deliver to the Holder a certificate or
certificates representing Warrant Shares in number equal to the
Common Stock purchased 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 purchased, times (B)
the price at which the sell order giving rise to such purchase
obligation was executed. For example, if the Holder purchases
Common Stock having a total purchase price of $11,000 to cover a
Buy-In with respect to an attempted exercise of shares of Common
Stock with an aggregate sale price giving rise to such purchase
obligation of $10,000, the Company shall be required to pay the
Holder $1,000 and deliver to the Holder a certificate or
certificates representing Warrant Shares in number equal to the
Common Stock purchased.
(d) The Company’s obligations to issue and
deliver Warrant Shares in accordance with the terms hereof are
absolute and unconditional, irrespective of any action or inaction
by the Holder to enforce the same, any waiver or consent with
respect to any provision hereof, the recovery of any judgment
against any person or any action to enforce the same, or any
setoff, counterclaim, recoupment, limitation or termination, or any
breach or alleged breach by the Holder or any other person of any
obligation to the Company or any violation or alleged violation of
law by the Holder or any other person, and irrespective of any
other circumstance which might otherwise limit such obligation of
the Company to the Holder in connection with the issuance of
Warrant Shares. Nothing herein shall limit the Holder’s right
to pursue any other remedies available to it hereunder, at law or
in equity including, without limitation, a decree of specific
performance and/or injunctive relief with respect to the
Company’s failure to timely deliver certificates representing
shares of Common Stock upon exercise of this Warrant as required
pursuant to the terms hereof. If the Company fails to cause its
transfer agent to transmit to the Holder a certificate or
certificates representing the Warrant Shares pursuant to this
Section 4(a) by the third Trading Day after the date on which
delivery of the stock certificate is required pursuant to Section
4(a), then the Holder will have the right to rescind such
exercise.
5. Charges, Taxes and Expenses
. Issuance and delivery of
certificates for shares of Common Stock upon exercise of this
Warrant shall be made without charge to the Holder for any issue or
transfer tax, withholding tax, transfer agent fee or other
incidental tax or expense in respect of the issuance of such
certificates, all of which taxes and expenses shall be paid by the
Company; provided, however, that the Company shall not be required
to pay any tax which may be payable in respect of any transfer
involved in the registration of any certificates for Warrant Shares
or Warrant in a name other than that of the Holder or an
affi
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