Finder's Fee
22
7.13
Expenses
22
7.14
Amendments and Waivers
23
7.15
Indemnification of Investors
23
7.16
Operation of Business
24
7.17
Specific Performance
24
7.18
Severability
24
7.19
Aggregation of Stock
24
7.20
Further Assurances
24
7.21
Successors and Assigns
25
7.22
Entire Agreement
25
SCHEDULES AND EXHIBITS
SCHEDULE A-1
Schedule of Investors - Closing
SCHEDULE A-2
Schedule of Investors - General Subsequent Closing
SCHEDULE A-3
Schedule of Investors - List of Section 4.11 Potential Investors
SCHEDULE B
Disclosure Schedules
SCHEDULE 4.12
List of Management Options
SCHEDULE 4.16
List of Management Lockup Signatories
SCHEDULE 6.2(b)
List of Remaining Management Lock-Up Agreements
SCHEDULE 6.2(c)
List of Remaining Employment Agreements
EXHIBIT A
Certificate of Designation
EXHIBIT B
Amendment to Articles of Incorporation
EXHIBIT C
Warrant
EXHIBIT D-1
Opinion of McDonald Carano Wilson LLP
EXHIBIT D-2
Opinion of Morrison & Foerster LLP
EXHIBIT E
Investors' Rights Agreement
EXHIBIT F
Stock Option Agreement
EXHIBIT G
Stock Option Agreement (Vesting Only Upon Certain Events)
EXHIBIT H
Lock-Up Letter
EXHIBIT I
Indemnification Agreement
-iii-
GOFISH CORPORATION
SECURITIES PURCHASE AGREEMENT
THIS SECURITIES PURCHASE AGREEMENT (this "Agreement") is made as of December 3,
2008 by and among GoFish Corporation, a Nevada corporation (the "Company"), and
the investors listed on Schedules A-1, A-2 and A-3 hereto, each of which is
herein referred to as an "Investor."
THE PARTIES HEREBY AGREE AS FOLLOWS:
1.
Purchase and Sale of Securities.
1.1
Sale and Issuance of Securities.
(a)
The Company shall adopt and file with the Secretary of State of
the State of Nevada on or before the Closing (as defined below) the Certificate
of Designation of Rights, Preferences, Privileges and Restrictions of Series A
Preferred Stock of the Company in the form attached hereto as Exhibit A (the
"Certificate of Designation").
The Series A Preferred Stock, par value $0.001
per share (the "Series A Preferred Stock"), of the Company shall have the
rights, preferences, privileges and restrictions set forth in the Certificate of
Designation.
Subject to the terms and conditions of this Agreement, each
Investor agrees, severally and not jointly, to purchase at the Closing, and the
Company agrees to sell and issue to each Investor at the Closing, that number of
(i) shares of the Company's Series A Preferred Stock set forth opposite such
Investor's name on Schedule A-1 hereto under the heading "Closing" and (ii)
warrants (the "Warrants") to purchase shares of the Company's common stock, par
value $0.001 per share (the "Common Stock"), set forth opposite such Investor's
name on Schedule A-1 hereto under the heading "Closing," for the aggregate
purchase price set forth opposite such Investor's name on Schedule A-1 hereto
under the heading "Closing."
The Series A Preferred Stock and Warrants are
collectively referred to herein as the "Securities."
The Securities are being
sold as units at a purchase price of $4.00 per unit, with each unit consisting
of (i) one share of Series A Preferred Stock and (ii) a Warrant to purchase
eight shares of the Company's Common Stock at an exercise price