SUBSCRIPTION AGREEMENT SHARES OF COMMON STOCK
Exhibit
10.1
Form
of
Subscription Agreement
SHARES
OF COMMON STOCK
THIS
OFFERING IS MADE PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER SECTION 4(2)
OF THE SECURITIES ACT OF 1933, AS AMENDED.
| Board of Directors |
Dated
as of
|
|
| WinWin Gaming, Inc. |
______________,
2005
|
|
| 0000 X. Xxxxxx Xxxxxx, Xxxxx 000 | ||
| Xxx Xxxxx, Xxxxxx 00000 |
1. Subscription.
The
undersigned hereby subscribes for and agrees to purchase _________________
_______________________ (_______) shares of Common Stock, par value $0.01 per
share (the "Shares")
of
WinWin Gaming, Inc., a Delaware corporation (the "Company"),
at
the price of ______________ ($__________) per share or a total of
________________________________ ($__________), payable by check to "WinWin
Gaming, Inc." The Company has the right to accept or reject this subscription,
in whole or in part, and this subscription shall be deemed accepted only when
signed by a representative of the Company. Subscriptions need not be accepted
in
the order received. The Shares are also referred to herein as the “Securities.”
2. Incidental
Registration Rights.
If, at
any time, the Company determines to register any of its securities under the
Securities Act for sale to the public, whether for its own account or for the
account of other security holders or both (except with respect to registration
statements on Form S-8 or its then equivalent, or in connection with a Rule
145
transaction or Form S-4 or its equivalent, or another form not available for
registering the Registrable Securities for sale to the public), each such time
it will give prompt written notice to all holders of outstanding Registrable
Securities, including each holder who has the right to acquire Registrable
Securities, of its intention so to do and of the proposed method of distribution
of such securities. Upon the written request of any such holder, received by
the
Company within 20 days after the giving of any such notice by the Company,
to
include in the registration all or any part of the Registrable Securities,
the
Company will use all reasonable efforts to cause the Registrable Securities
as
to which registration shall have been so requested to be included in the
securities to be covered by the registration statement proposed to be filed
by
the Company, all to the extent and under the conditions such registration is
permitted under the Securities Act. In the event that any registration shall
be,
in whole or in part, an underwritten public offering of Common Stock, the number
of shares of Registrable Securities to be included in such an underwriting
may
be reduced (pro rata among the requesting holders of Registrable Securities
based upon the number of shares of Registrable Securities owned by such holders)
if and to the extent that the managing underwriter shall be of the opinion
that
the inclusion of some or all of the Registrable Securities would adversely
affect the marketing of the securities to be sold by the Company therein. Any
such limitation shall be imposed in such manner so as to avoid any diminution
in
the number of shares the Company may register for sale by giving first priority
for the shares to be registered for issuance and sale by the Company, by giving
second priority for all shares to be registered pursuant to the Company’s
obligation to register shares underlying the warrants issued in connection
with
the Company’s private placement during February through August 2005, by giving
third priority for the Registrable Securities, and by giving fourth priority
to
any shares to be registered for sale by any stockholder of the Company pursuant
to the terms of any other agreement. Notwithstanding the foregoing provisions,
the Company may, in its sole discretion, terminate or withdraw any registration
statement referred to in this Section
2
without
thereby incurring any liability to the holders of Registrable Securities. For
purposes of this Section
2,
“Registrable
Securities"
shall
mean any and all Shares sold pursuant to the Memorandum, whether or not pursuant
to this Subscription Agreement, and any shares of Common Stock issued or
issuable with respect to the Shares upon an adjustment for stock splits, stock
dividends, and similar events. Notwithstanding the foregoing, Registrable
Securities shall not include Shares that have been (i) registered under the
Securities Act pursuant to an effective registration statement filed thereunder
and disposed of in accordance with the registration statement covering them,
(ii) publicly sold pursuant to Rule 144 under the Securities Act, (iii) eligible
for sale under Rule 144 under the Securities Act, or (iv) sold in a private
transaction in which the transferor’s rights under this Agreement are not
assigned. All expenses incurred by the Company in complying with this
Sections
2,
including, without limitation, all registration and filing fees, printing
expenses, fees and disbursements of counsel and independent public accountants
for the Company, fees and expenses (including counsel fees) incurred in
connection with complying with state securities or "blue sky" laws, transfer
taxes, and fees of transfer agents and registrars, shall be referred to herein
as “Registration
Expenses.”
All
underwriting discounts and selling commissions applicable to the sale of
Registrable Securities and the fees of counsel to the selling stockholders
shall
be referred to herein as “Selling
Expenses.”
The
Company shall pay all Registration Expenses in connection with each registration
statement under this Section
2.
The
Company shall not, however, be required to pay for the Registration Expenses
of
any registration proceeding begun pursuant to Section
2,
the
request for which is subsequently withdrawn by the requesting holders of
Registrable Securities, in which event the Registration Expenses shall be borne
by the requesting holders of the Registrable Securities in proportion to the
number of shares for which registration was requested. All Selling Expenses
in
connection with each registration statement under Section
2
shall be
borne by the participating sellers in proportion to the number of shares sold
by
each, or by such participating sellers other than the Company (except to the
extent the Company shall be a seller) as they may agree.
1
3. Representations,
Warranties, Covenants, and Acknowledgements.
By
executing this subscription agreement, the undersigned hereby represents,
warrants, covenants, and acknowledges to the Company as follows:
(a) The
undersigned has been given access to full and complete information regarding
the
Company and specifically acknowledges receipt of that certain Private Offering
Memorandum, dated September 9, 2005 (the “Memorandum”),
relating to the purchase of the Shares. In addition, the undersigned has
obtained such information regarding the Company as the undersigned has
reasonably requested, and, particularly, the undersigned has been given
reasonable opportunity to ask questions of, and receive answers from,
representatives of the Company concerning the terms and conditions of the
purchase of the Securities and to obtain any additional information concerning
the Company's business to the extent reasonably available so as to understand
more fully the nature of the investment and to verify the accuracy of the
information supplied.
(b) In
determining to purchase Securities, the undersigned has relied solely upon
the
Memorandum and the advice of the undersigned's legal counsel and accountants
or
other financial advisors with respect to the financial, tax, and other
considerations relating to the purchase of Securities.
(c) The
undersigned and the undersigned's personal advisors have received from the
Company the Memorandum and all requested documents, records, and books
pertaining to the investment in Securities so as to enable them to evaluate
the
merits and risks of this investment. The undersigned understands and
acknowledges that all documents were prepared by the Company and that no
independent legal counsel, accountant, or financial advisor has passed upon
or
assumed any responsibility for the accuracy, completeness, or fairness of
information provided to the undersigned and no independent legal counsel,
accountant, or financial advisor has independently verified or investigated
in
any way the accuracy, completeness, or fairness of such information.
(d) The
undersigned was not offered nor sold Securities directly or indirectly, by
means
of any form of general advertising or general solicitation, including, but
not
limited to (i) any advertisement, article, notice, or other communication
published in a newspaper, magazine, or similar medium of communication or
broadcast over television or radio; or (ii) to the knowledge of the undersigned,
any seminar or meeting whose attendees have been invited by any general
solicitation or general advertising.
(e) The
undersigned (i) can bear the economic risk of the investment in the Securities,
including the total loss of the undersigned's investment; (ii) has such
knowledge and experience in business and financial matters as to be capable
of
evaluating the merits and risks of an investment in the Securities; and (iii)
understands the non-liquid nature of an investment in the
Securities.
(f) The
undersigned acknowledges and understands that the Securities are a speculative
investment that involve a high degree of risk and there can be no guarantee
of
the amount of or type of profit, if any, to be realized as a result of an
investment in the Securities.
2
(g) The
undersigned is presently a bona fide resident of the state listed below and
has
no present intention of becoming a resident of any other state or jurisdiction,
and the address and Social Security or Federal I.D. number set forth below
are
the undersigned's true and correct residential address and Social Security
or
Federal I.D. number.
(h) The
undersigned (i) if an individual, is at least 21 years of age; (ii) if an
individual, is a United States citizen; (iii) if an individual, has adequate
means of providing for the undersigned's current needs and personal
contingencies; (iii) has no need for liquidity in the undersigned's investments;
(iv) represents and warrants that all investments in and commitments to
non-liquid investments are, and after the undersigned's investment in the
Securities will be, reasonable in relation to the undersigned's net worth and
current needs; and (v) represents and warrants that any personal financial
information that is provided herewith by the undersigned, or is subsequently
submitted by the undersigned at the request of the Company, does or will
accurately reflect the undersigned's financial condition with respect to which
the undersigned does not anticipate any material adverse change.
(i) The
undersigned acknowledges that the Company is relying on exemptions from the
registration requirements of the Securities Act and afforded by applicable
state
statutes and regulations.
(j) The
undersigned understands that the Securities will not be registered under the
Securities Act or the securities laws of any state and are subject to
substantial restrictions on transfer.
(k) The
undersigned acknowledges that the Securities being acquired will be acquired
for
the undersigned's own account without a view to public distribution, transfer,
resale, or assignment and that the undersigned has no contract, undertaking,
agreement, or arrangement to sell or otherwise transfer or dispose of the
Securities or any portion thereof to any other person.
(l) The
undersigned agrees that the undersigned will not sell or otherwise transfer
or
dispose of the Securities or any portion thereof unless such Securities are
registered under the Securities Act and any applicable state securities laws
or
the undersigned obtains an opinion of counsel that is satisfactory to the
Company that such Securities may be sold in reliance on an exemption from such
registration requirements.
(m) The
undersigned understands that (i) the Company has no obligation or intention
to
register the Securities for resale or transfer under the Securities Act or
any
state securities laws, and there is no assurance that the Company will be able
to make available such information or other information that would make
available any exemption from the registration requirements of any such laws;
and
(ii) the undersigned therefore may be precluded from selling or otherwise
transferring or disposing of the Securities or any portion thereof for an
indefinite period of time or at any particular time.
(n) The
undersigned understands that no federal or state agency, including the
Securities and Exchange Commission or the securities commission or authorities
of any other state, has approved or disapproved the Securities or made any
finding or determination as to the fairness of the Securities for
investment.
(o) The
undersigned is not subject to back-up withholding provisions of Section
3406(a)(1) of the Internal Revenue Code.
(p) If
subject to the Employee Retirement Income Security Act ("ERISA"), the
undersigned is aware of and has taken into consideration the diversification
requirements of Section 404(a)(3) of ERISA in determining to purchase the
Securities and the undersigned has concluded that the purchase of the Securities
is prudent.
(q) If
the
undersigned is acquiring the Securities in a fiduciary capacity, (i) the above
representations, warranties, agreements, acknowledgments, and understandings
shall be deemed to have been made on behalf of the person or persons for whose
benefit such Securities are being acquired, (ii) the name of such person or
persons is indicated below under the subscriber's name, and (iii) such further
information as the Company deems appropriate shall be furnished regarding such
person or persons.
3
(r) Neither
the Company nor any person representing or acting on behalf of the Company,
or
purportedly representing or acting on behalf of the Company, has made any
representations, warranties, agreements, or statements other than those
referenced herein that influenced or affected the undersigned's decision to
purchase the Securities.
(s) The
foregoing representations and warranties are true and accurate as of the date
hereof and shall survive the delivery of payment. The undersigned understands
that the Company is relying upon the truth and accuracy of the representations,
warranties, agreements, acknowledgements, and understandings set forth herein
in
order to determine the suitability of the undersigned to acquire Securities.
The
undersigned agrees promptly to notify the Company of any changes to any of
the
foregoing.
4. General
Information.
(a) Purchaser
Representative for Individual Investors. Please check (i) or (ii):
| ¨ |
(i) The
undersigned is not relying upon the advice of a Purchaser Representative,
such as an attorney, accountant, or other advisor, in making a
final
investment decision with respect to the Securities. The undersigned
believes that the undersigned has sufficient knowledge and experience
in
financial and business matters to be capable of evaluating the
merits and
risks of an investment in the
Securities.
|
| ¨ |
(ii) The
undersigned does not have sufficient knowledge and experience in
financial
and business matters as required above. The undersigned intends to
rely on
and hereby designates as the undersigned's Purchaser Representative
the
individual(s) named below to assist the undersigned in evaluating
the
risks and merits of an investment in the Securities. The undersigned
authorizes the Company to furnish such person with a Purchaser
Representative Questionnaire requesting certain information regarding
his
or her expertise and background and the undersigned agrees to furnish
such
questionnaire to the Company.
|
| Name of Purchaser Representative: | ||
| Address: | ||
| Occupation: | ||
| Employer: |
NOTE:
IF ITEM (a)(ii) ABOVE IS CHECKED, EACH PURCHASER REPRESENTATIVE MUST COMPLETE
THE PURCHASER REPRESENTATIVE QUESTIONNAIRE. THE PURCHASER REPRESENTATIVE
QUESTIONNAIRE IS ATTACHED HERETO AS EXHIBIT
C.
(b) The
undersigned is:
| ( ) |
An
individual*
|
| ( ) |
A
corporation
|
| ( ) |
A
partnership
|
| ( ) |
A
trust
|
| ( ) |
Other
_________________
|
*If
held
as joint tenants with right of survivorship, community property, or tenants
in
common, signatures of all parties are required. Each Co-Holder (other than
a
spouse) must complete and sign a separate subscription agreement.
4
|
(c)
|
PLEASE
PRINT NAME(S) IN WHICH YOUR SECURITIES ARE TO BE
REGISTERED
|
|||||||||||||
| Social Security or Employer Identification Number of each Holder: | ||||||||||||||
| Country of Principal Residence: | ||||||||||||||
| Business Address | ||||||||||||||
| (No P.O. Boxes please) | ||||||||||||||
|
City
|
State
|
Zip
Code
|
Country
|
|||||||||||
5. The
purpose of the following information is to assure the Company that it may rely
on the exemption from the registration requirements of the Securities Act and
of
any applicable state statutes or regulations.
Please
answer every question.
If the
answer to any question is "None" or "Not Applicable" please so state. Your
answers will at all times be kept strictly confidential. However, by signing
this subscription agreement, you agree that the Company may present such
information to such parties as it deems appropriate if called upon to verify
the
information provided or to establish the availability of an exemption from
registration under the Securities Act or any state securities statutes or
regulations, or if the contents are relevant to any issue in any action, suit,
or proceeding to which the Company or any agent of the Company involved in
offering the Securities is a party or by which it is or may be bound. Your
investment in the Securities will not be accepted until the Company determines
that you satisfy all of the suitability standards.
6. Representations
as to Accredited Investor Status.
The
undersigned has read the definition of "Accredited Investor" from Rule 501
of
Regulation D attached hereto as Exhibit A,
and
certifies that either (check one):
| (a) | ¨ | The undersigned is an "Accredited Investor" for one or more of the following reasons: | |
| ¨ | (i) The undersigned is an individual (not a partnership, corporation, etc.) whose individual net worth, or joint net worth with his or her spouse, presently exceeds $1,000,000; | ||
| ¨ |
(ii) The
undersigned is an individual (not a partnership, corporation, etc.)
who
had an income in excess of $200,000 in each of the two most recent
years,
or joint income with their spouse in excess of $300,000 in each
of those
years (in each case including foreign income, tax exempt income
and full
amount of capital gains and losses but excluding any income of
other
family members and any unrealized capital appreciation) and has
a
reasonable expectation of reaching the same income level in the
current
year;
|
5
| ¨ |
(iii) The
undersigned is a director or executive officer of the Company which
is
issuing and selling the Securities;
|
||
| ¨ |
(iv) The
undersigned is a corporation, partnership, Massachusetts business
trust,
or non-profit organization within the meaning of Section 501(c)(3)
of the
Internal Revenue Code, in each case not formed for the specific
purpose of
acquiring the Securities and with total assets in excess of
$5,000,000;
|
||
| ¨ |
(v) The
undersigned is a trust with total assets in excess of $5,000,000,
not
formed for the specific purpose of acquiring the Securities, where
the
purchase is directed by a "sophisticated person" as defined in
Regulation
506(b)(2)(ii);
|
||
|
¨
|
(vi) The undersigned is an entity all the equity owners of which are "accredited investors" within one or more of the above categories. If relying upon this Category alone, each equity owner must complete a separate copy of this Questionnaire; | ||
|
(describe
entity)
|
|||
| (b) |
¨
|
The
undersigned is not
an
"Accredited Investor," but has completed the statement concerning
the
undersigned's knowledge and experience in financial and business
matters
included in Exhibit B
hereto. Kindly provide sufficient detail so that the Company's
legal
counsel may conclude that the undersigned is capable of evaluating
the
merits and risks of investment in the
Company.
|
If
the
answer to Question 6 is that the undersigned is an "Accredited Investor," the
questionnaire is complete and please simply sign below. Any potential investor
that is not an "Accredited Investor" also must complete the supplemental
questionnaire attached hereto as Exhibit
B
to
assure compliance with state and federal securities laws.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
6
IN
WITNESS WHEREOF, intending to irrevocably bind the undersigned and the personal
representatives, successors, and assigns of the undersigned and to be bound
by
this subscription agreement, the undersigned is executing this Agreement on
the
date indicated.
| Dated this ____ day of ______________, 2005. | ||
| PRINT Name of Individual who, or other entity which, is subscribing. | Signature | |
| PRINTED Name of Co-Holder if the Securities are to be held as joint tenants with right of survivorship, community property, or tenants in common. |
Signature
of Co-Holder
|
| Accepted on ________________, 2005 | ||
| WINWIN GAMING, INC. |
| By: | |||
|
Name:
|
|||
|
Title:
|
|||
7
EXHIBIT
A
DEFINITION
OF "ACCREDITED INVESTOR"
FROM
RULE 501 OF REGULATION D
"Accredited
investor" shall mean any person who comes within any of the following
categories, or who the issuer reasonably believes comes within any of the
following categories, at the time of the sale of the securities to that
person:
1. Any
bank
as defined in section 3(a)(2) of the Act or any savings and loan association
or
other institution as defined in Section 3(a)(5)(A) of the Act whether acting
in
its individual or fiduciary capacity; any broker dealer registered pursuant
to
Section 15 of the Securities Exchange Act of 1934; insurance company as defined
in Section 2(13) of the Act; investment company registered under the Investment
Company Act of 1940 or a business development company as defined in Section
2(a)(48) of that Act; Small Business Investment Company licensed by the U.S.
Small Business Administration under Section 301(c) or (d) of the Small Business
Investment Act of 1958; employee benefit plan within the meaning of Title I
of
the Employee Retirement Income Security Act of 1974, if the investment decision
is made by a plan fiduciary, as defined in Section 3(21) of such Act, which
is
either a bank, savings and loan association, insurance company, or registered
investment adviser, or if the employee benefit plan has total assets in excess
of $5,000,000; or, if a self-directed plan, with investment decisions made
solely by persons that are accredited investors;
2. Any
private business development company as defined in Section 202(a)(22) of the
Investment Advisers Act of 1940;
3. Any
organization described in Section 501(c)(3) of the Internal Revenue Code,
corporation, Massachusetts or similar business trust, or partnership, not formed
for the specific purpose of acquiring the securities offered, with total assets
in excess of $5,000,000;
4. Any
director, executive officer, or general partner of the issuer of the securities
being offered or sold, or any director, executive officer, or general partner
of
a general partner of that issuer;
5. Any
natural person whose individual net worth, or joint net worth with that person's
spouse, at the time of his purchase exceeds $1,000,000;
6. Any
natural person who had an individual income in excess of $200,000 in each of
the
two most recent years or joint income with that person's spouse in excess of
$300,000 in each of those years and has a reasonable expectation of reaching
the
same income level in the current year;
7. Any
trust
with total assets in excess of $5,000,000, not formed for the specific purpose
of acquiring the securities offered, whose purchase is directed by a
sophisticated person as described in Rule 506(b)(2)(ii); and
8. Any
entity in which all of the equity owners are accredited investors.
A-1
EXHIBIT
B
CONFIDENTIAL
SUPPLEMENTAL INFORMATION STATEMENT
(To
be
completed by subscribers that are not "Accredited Investors")
|
I.
|
GENERAL
INFORMATION
(For individual shareholders and each individual partner or shareholder
if
the shareholder is a partnership or corporation that is not an "Accredited
Investor" -- attach additional sheets if
necessary)
|
| A. | Purchasers | |||||||
|
1.
|
Name: | |||||||
| 2. | Address: | |||||||
| Business: | ||||||||
| Residence: | ||||||||
| 3. | Telephone: | |||||||
| Business: | ( ) | |||||||
| Residence: | ( ) | |||||||
| 4. | Amount of Investment: | ||||
| $ | |||||
| 5. | State where registered to vote: | ||||
| 6. | Social Security Number: | ||||
| 7. | Date of Birth: | ||||
| 8. | Country of citizenship, if other than the United States: | ||||
| 9. | Marital status: | ||||
B-1
| 10. | Please state your education and degrees earned | ||||||||
| Degree
|
School
|
Year
|
|||||||
| 11. | Current occupation (if retired, please described your last occupation): | ||||||||
| Employer: | |||||||||
|
Nature
of Business:
|
|||||||||
|
Position
and/or duties:
|
|||||||||
|
Period
Employed:
|
|||||||||
| 12. |
If
current employment is less than five years, please complete the
following
chart on your employment history for the past five (5)
years:
|
||||||||
|
Employer
and Title
|
Primary
Duties
|
From
|
To
|
||||||
| 13. | Please list all professional qualifications that you have held or currently hold, including bar admissions, accounting certificates, brokerage licenses, and other professional licenses or certificates: | ||||||||
| Professional
Qualifications
|
Year
Received
|
Still
Effective
|
|||||||
| Yes ¨ | No ¨ | ||||||||
| Yes ¨ | No ¨ | ||||||||
| Yes ¨ | No ¨ | ||||||||
B-2
|
II.
|
FINANCIAL
INFORMATION (For
individual investors and each individual partner or shareholder if
the
investor is a partnership or corporation that is not an "Accredited
Investor" -- attach additional sheets if
necessary)
|
|
A.
|
To
confirm that each individual investor meets the financial requirements
established for this offering, please answer the questions set forth
below, as appropriate.
|
|
1.
|
Please
indicate your net worth (including spouse, if applicable), including
home,
home furnishings, and automobiles:
|
| $ 75,000 - 150,000 | ¨ | $250,000 - 500,000 | ¨ | |||||
| $150,000 - 250,000 | ¨ | $500,000 - 1,000,000 | ¨ | |||||
| Greater than $1,000,000 | ¨ |
|
2.
|
Did
you have income (exclusive of any income attributable to your spouse)
in
excess of $200,000 for 2003 and 2004 and do you reasonably expect
to have
income in excess of $200,000 in 2005?
|
| Yes ¨ | No ¨ |
|
3.
|
Did
you and your spouse have joint income in excess of $300,000 for 2003
and
2004 and do you reasonably expect to have joint income in excess
of
$300,000 in 2005?
|
| Yes ¨ | No ¨ |
|
(d)
|
If
the investor is a general partnership or a corporation, was the purchaser
organized for the specific purpose of acquiring Securities in the
Company?
|
| Yes ¨ | No ¨ |
|
(e)
|
If
the purchaser is a general partnership or corporation, please list
on a
separate page the partners or shareholders and approximate net worth
(including spouse, if applicable) of each such partner or shareholder,
including home, home furnishings, and
automobiles.
|
|
III.
|
INVESTMENT
EXPERIENCE REPRESENTATIONS
|
A. Indicate
how often you invest in:
1. Marketable
Securities
|
Often
¨
|
Occasionally ¨ | Seldom ¨ | Never ¨ |
2. Restricted
Securities
|
Often
¨
|
Occasionally ¨ | Seldom ¨ | Never ¨ |
3. Venture
Capital Limited Partnership Funds
|
Often
¨
|
Occasionally ¨ | Seldom ¨ | Never ¨ |
B-3
|
4.
|
Please
list below your most recent private investments (attach a separate
sheet
if necessary):
|
| Private Offering | Type of Investment | When Purchased | Amount of Investment | ||||||||
| $ | |||||||||||
| $ | |||||||||||
| $ | |||||||||||
| $ | |||||||||||
| $ | |||||||||||
B. Please
answer each of the following questions regarding your investment
experience:
|
1.
|
Do
you have such knowledge and experience in financial and business
matters
as to be capable of evaluating the merits and risks of an investment
in
the Company?
|
| Yes ¨ | No ¨ |
|
2.
|
Do
you, either alone by reason of your business or financial experience
or
together with your professional advisor or advisors, have the capacity
to
protect your own interests in connection with a purchase of the Securities
in the Company?
|
| Yes ¨ | No ¨ |
|
3.
|
Are
you (or the trust beneficiary for which you are the fiduciary) able
to
bear the economic risk of the investment, including a complete loss
of the
investment?
|
| Yes ¨ | No ¨ |
|
Signature(s)
|
||||||||
B-4
EXHIBIT
C
COMPLETE
THIS SECTION ONLY IF YOU CHECKED ITEM 4(a)(ii) OF THE SUBSCRIPTION AGREEMENT
AND
ARE RELYING ON THE ADVICE OF A PURCHASER REPRESENTATIVE
PURCHASER
REPRESENTATIVE QUESTIONNAIRE
This
Purchaser Representative Questionnaire is being sent to each subscriber that
will use a purchaser representative in connection with the offering and
must
be completed by such representative
and returned to the Company or its authorized
representatives.
The
purpose of this Purchaser Representative Questionnaire is to assure the Company
that it may rely on the exemptions from the registration requirements of the
Securities Act of afforded by Section 4(2) of the Securities Act and Regulation
D promulgated under the Securities Act, and of any applicable state statutes
or
regulations.
Please
answer every question.
If
the
answer to any question is "None" or "Not Applicable" please so state. Your
answers will at all times be kept strictly confidential. However, by signing
a
Purchaser Representative Questionnaire, you agree that the Company may present
such Purchaser Representative Questionnaire to such parties as they deem
appropriate if called upon to verify the information provided or to establish
the availability of an exemption from registration under Section 4(2) of the
Securities Act, Regulation D, or any state securities statutes or regulations,
or if the contents are relevant to any issue in any action, suit, or proceeding
to which the Company is or may be bound.
| Name of Subscriber: |
Please
complete the following questionnaire fully, attaching additional sheets if
necessary.
| 1. | Name of Purchaser Representative: | |||||||
| Business Address: | ||||||||
| Telephone Number: | ||||||||
| 2. Present occupation or position, indicating period of such practice or employment and field of professional specialization, if any. | ||||||||
|
3. List
any business or professional education, including degrees received,
if
any.
|
||||||||
4. Have
you
had prior experience in advising clients with respect to investments of this
type?
| Yes ¨ | No ¨ |
|
5.
List
any professional licenses or registrations, including bar admissions,
accounting certifications, real estate brokerage licenses, and
SEC or
state broker-dealer registrations held by you.
|
||||||||
C-1
| 6. Describe generally any business, financial, or investment experience that would help you to evaluate the merits and risks of this investment. | ||||||||
|
7. State
how long you have known the subscriber and in what
capacity.
|
||||||||
8. Except
as
set forth in subparagraph (a) below, neither I nor any of my affiliates have
any
material relationship (as defined in Rule 501 of Regulation D) with the Company
or any of its affiliates; no such material relationship has existed at any
time
during the previous two years; no such material relationship is mutually
understood to be contemplated; and no compensation has been received nor will
any compensation be received as a result of any such relationship.
| (a) | ||||||||
| (b) | If a material relationship is disclosed in subparagraph (a) above, indicate the amount of compensation received or to be received as a result of such relationship. | |||||||
9. In
advising the subscriber in connection with subscriber's prospective investment
in the Securities, I will be relying in part on the subscriber's own experience
in certain areas.
| Yes ¨ | No ¨ |
10. In
advising the subscriber in connection with the subscriber's prospective
investment in the Securities, I will be relying in part on the expertise of
an
additional Purchaser Representative or Representatives.
| Yes ¨ | No ¨ |
If
"Yes,"
give the name and address of such additional Representative or
Representatives.
I
understand that the Company will be relying on the accuracy and completeness
of
my responses to the foregoing questions, and I represent and warrant to the
Company as follows:
(i) I
am 21
years of age or older and I am acting as Purchaser Representative for the
shareholder in connection with the subscriber's prospective investment in the
Securities;
(ii) The
answers to the above questions are complete and correct and may be relied upon
by the Company in determining whether the offering in connection with which
I
have executed this questionnaire is exempt from registration under the
Securities Act, pursuant to Regulation D or otherwise;
(iii) I
am not
an affiliate (as defined in Rule 501 of Regulation D), director, officer, or
other employee of the Company or any of its affiliates or a beneficial owner
of
5% or more of any class of the equity securities of the Company;
(iv) I
have
not, during the past 10 years, (i) been convicted, indicted, or investigated
in
connection with any past or present criminal proceeding (excluding traffic
violations and other minor offenses); of (ii) been the subject of any order,
judgment, or decree of any court or competent jurisdiction permanently or
temporarily enjoining me from acting as an investment adviser, underwriter,
broker, or dealer in securities or as an affiliated person, director or employee
of an investment company, bank, savings and loan association or insurance
company, or from engaging in or continuing any conduct or practice in connection
with any such activity or in connection with the purchase or sale of any
security, or been the subject of any order of a federal or state authority
barring or suspending for more than 60 days my right to be engaged in any such
activity, or to be associated with persons engaged in any such activity, which
order has not been reversed or suspended;
C-2
(v) I
have
disclosed to the subscriber in writing, prior to the subscriber's acknowledgment
of me as his Purchaser Representative, any material relationship with the
Company or its affiliates disclosed in answer to question 8 above;
(vi) I
personally (or together with the subscriber or the additional Purchaser
Representative or Representatives indicated above) have such knowledge and
experience in financial and business matters that I am capable of evaluating
the
merits and risks of the subscriber's prospective investment in the Securities;
and
(vii) I
will
notify the Company immediately of any material change in any statement made
herein occurring prior to the closing of any purchase by the subscriber of
an
interest in the proposed investment.
IN
WITNESS WHEREOF, I have executed this Purchaser Representative Questionnaire
this _____ day of __________________, 2005.
| (Signature of Purchaser Representative) | ||||||||
C-3
COMPLETE
THIS SECTION ONLY IF YOU CHECKED ITEM 4(a)(ii) OF THE SUBSCRIPTION AGREEMENT
AND
ARE RELYING ON THE ADVICE OF A PURCHASER REPRESENTATIVE
[Form
of
Disclosure Letter to Subscriber from
Purchaser
Representative]
____________,
2005
[Subscriber]
__________________________________
__________________________________
__________________________________
__________________________________
Dear
_________________________:
In
connection with my serving as your Purchaser Representative with respect to
the
offering of WinWin Gaming, Inc. whereby you will purchase shares of Common
Stock
of WinWin Gaming, Inc., please be advised that within the last two years there
has existed, there now exists, or is contemplated to exist the following
material relationships:
As
a result of such relationships, I have received or
will receive the following compensation:
|
Very
truly yours,
|
||||||||
| [Purchaser Representative] | ||||||||
C-4
