SIXTH AMENDMENT TO MERGER AGREEMENT

 

This SIXTH AMENDMENT TO MERGER AGREEMENT (this “Sixth Amendment”) is dated as of July 12, 2007 and entered into by and among GoFish Corporation, a Nevada corporation (the “Buyer”), BM Acquisition Corp Inc., a Delaware corporation and wholly owned subsidiary of the Buyer (the “Transitory Subsidiary”), Bolt, Inc., a/k/a Bolt Media, Inc., a Delaware corporation (the “Company”), and John Davis, (the “Indemnification Representative”), with reference to that certain Agreement and Plan of Merger dated as of February 11, 2007, by and among the Buyer, the Transitory Subsidiary, the Company and the Indemnification Representative, as amended by the First Amendment to Merger Agreement dated as of March 29, 2007, the Second Amendment to Merger Agreement dated as of May 31, 2007, the Third Amendment to Merger Agreement dated as of June 15, 2007, the Fourth Amendment to Merger Agreement dated as of June 20, 2007 and the Fifth Amendment to Merger Agreement dated as of June 21, 2007, each by and among the Buyer, the Transitory Subsidiary, the Company and the Indemnification Representative (collectively, the “Merger Agreement”). Capitalized terms used but not defined in this Sixth Amendment shall have the meanings given to such terms in the Merger Agreement.

WHEREAS, the parties hereto have agreed to amend the Merger Agreement to provide that the Closing Date shall be on such date as is mutually agreed upon by the parties up to the Termination Date, and to provide that the Termination Date shall be July 20, 2007;

NOW, THEREFORE, in consideration of the mutual agreements herein contained, and intending be legally bound hereby, the parties hereto hereby agree as follows:

1.1 Section 7.1(e) of the Merger Agreement, as amended, is hereby replaced in its entirety with the following:

(e) the Buyer may terminate this Agreement if the Closing shall not have occurred on or before July 20, 2007 (the “Termination Date”) by reason of the failure of any condition precedent under Section 5.1 or 5.2 hereof (unless the failure results primarily from a breach by the Buyer or the Transitory Subsidiary of any representation, warranty or covenant contained in this Agreement);

 

2.1  Effect on Merger Agreement. On and after the date of this Sixth Amendment each reference in the Merger Agreement to “this Agreement,” “hereunder,” “hereof,” “herein,” or words of like import referring to the Merger Agreement shall mean and be a reference to the Merger Agreement, as amended by this Sixth Amendment. Except as specifically amended by this Sixth Amendment, the Merger Agreement shall remain in full force and effect and is hereby ratified and confirmed.

 

 

2.2  Governing Law. This Sixth Amendment shall be governed by and construed in accordance with the internal laws of the State of Delaware without giving effect to any choice or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of laws of any jurisdictions other than those of the State of Delaware.

 

2.3  Counterparts; Facsimile. This Sixth Amendment may be executed in two or more counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument, and facsimile signatures shall be deemed, for the purposes of this Sixth Amendment, original signatures.

2.4  Severability. Any term or provision of this Sixth Amendment that is invalid or unenforceable in any situation in any jurisdiction shall not affect the validity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other situation or in any other jurisdiction. If the final judgment of a court of competent jurisdiction declares that any term or provision hereof is invalid or unenforceable, the Parties agree that the court making the determination of invalidity or unenforceability shall have the power to limit the term or provision, to delete specific words or phrases, or to replace any invalid or unenforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Sixth Amendment shall be enforceable as so modified.

[Signature page follows]

IN WITNESS WHEREOF, the Parties hereto have caused this Sixth Amendment to be duly executed and delivered as of the date first above written.

	GOFISH CORPORATION
	By:	/s/ Tabreez Verjee
		Name: Tabreez Verjee Title: President

 

	BM ACQUISITION CORP INC.
	By:	/s/ Tabreez Verjee
		Name: Tabreez Verjee Title: President

 

	BOLT, INC.
	By:	/s/ Aaron Cohen
		Name: Aaron Cohen Title: Chief Executive Officer

 

	INDEMNIFICATION REPRESENTATIVE.
	By:	/s/ John Davis
		Name: John Davis