WINWIN GAMING, INC. SECURED CONVERTIBLE NOTE AND WARRANT PURCHASE AGREEMENT
EXECUTIVE
COPY
WINWIN
GAMING, INC.
This
Secured Convertible Note and Warrant Purchase Agreement, dated as of April
21,
2006 (this “Agreement”),
is
entered into by and among WINWIN GAMING, INC., a Delaware corporation (the
“Company”),
and
each of the undersigned purchasers (collectively, the “Purchasers”
and
individually, a “Purchaser”)
listed
on the Schedule of Purchasers attached hereto as Exhibit A.
RECITAL
On
the
terms and subject to the conditions set forth herein, the Purchasers are willing
to purchase from the Company, and the Company is willing to sell to the
Purchasers, up to an aggregate principal amount of Two Million Dollars
($2,000,000) in Secured Convertible Promissory Notes (collectively, the
“Notes”)
and
warrants (collectively, the “Warrants”)
to
purchase common stock, par value of $0.01 per share, of the Company
(“Common
Stock”)
at the
Closing (as hereinafter defined). The Notes and Warrants shall be issued by
the
Company in the amounts set forth opposite each Purchaser’s name on the Schedule
of Purchasers.
AGREEMENT
NOW,
THEREFORE, in consideration of the foregoing, and the representations,
warranties and conditions set forth below, the parties hereto, intending to
be
legally bound, hereby agree as follows:
1. The
Notes.
1.1 Issuance
of Notes.
In
reliance upon and subject to the representations, warranties and covenants
of
the parties set forth herein, at the Closing, the Company shall issue, sell
and
deliver to each Purchaser, and each such Purchaser severally shall purchase
from
the Company, a Note in the principal amount set forth opposite such Purchaser’s
name on the Schedule of Purchasers. Each of the Notes shall be secured by the
assets of the Company as described in that certain Security Agreement of even
date herewith between the Company and the Purchasers, in substantially the
form
attached hereto as Exhibit
D
(the
“Security
Agreement”).
The
purchase price for each of the Notes shall be the original principal amount
under such Note and shall be payable in immediately available funds within
three
(3) Business Days of the date hereof. “Business
Day”
means
any day except a Saturday, Sunday or other day on which commercial banks in
New
York, New York and Las Vegas, Nevada are authorized by law to
close.
1.2 Terms
and Conditions of the Notes.
The
terms and conditions of the Notes (including the terms of the conversion
thereof) are set forth in the form of Note attached as Exhibit B
hereto.
Capitalized terms not otherwise defined herein shall have the meaning set forth
in Exhibit B
attached
hereto.
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1.3 Priority.
(a) Payment
Priority.
At any
time that obligations represented by the Notes are presently due and payable,
such obligations shall rank senior to all other indebtedness of the Company,
except that the notes or other obligations set forth on Schedule
1.3
shall
rank senior to the Notes. Any indebtedness of the Company other than as
set
forth in Schedule
1.3
may not
be paid if payments under the Notes are due and owing to the Holders thereof.
Any debt incurred by the Company after the execution of this Agreement
shall be
subordinate to the obligations represented by the Notes in right to payment
unless and to the extent that the Purchaser specifically consents in writing
to
subordination of the Notes to such future indebtedness.
(b) Liquidation
Preference.
Upon
the liquidation of the Company, the holder or holders of the Notes shall
have
the right to receive payment, in full, prior and in preference to any payment
to
any other person having a claim to the assets of the Company, other than
repayment of the indebtedness set forth on Schedule
1.3,
which
shall rank senior to the Notes with respect to any liquidation payment.
2. Warrants.
2.1 Issuance
of Warrants.
In
reliance upon and subject to the representations, warranties and covenants
of
the parties set forth herein, at the Closing, the Company shall issue and
deliver to each Purchaser, and each such Purchaser shall severally acquire,
a
Warrant in the form attached hereto as Exhibit
C
entitling such Purchaser to purchase shares of Common Stock as determined
in the
form of Warrant attached hereto as Exhibit
C.
2.2 Terms
of Warrant.
The
other terms and conditions of the Warrants are set forth in the form of
Warrant
attached hereto as Exhibit C
hereto.
3. Closing;
Delivery.
3.1 Closing.
The
closing of the purchase and sale of Notes and Warrants hereunder shall
take
place at the offices of Xxxx Xxxxx LLP, counsel to the Purchasers, at 000
Xxxxxxxxx Xxxxxx, 00xx
xxxxx,
Xxx Xxxx, Xxx Xxxx 00000 on April ___, 2006 or at such time and place as
the
Company and the Purchasers shall mutually determine (the “Closing”).
3.2 Delivery.
Subject
to the terms of this Agreement, (a) at the Closing, the Company will
deliver to each Purchaser (i) a Note in such Purchaser’s name representing
the Note acquired by such Purchaser at the Closing, (ii) a Warrant in such
Purchaser’s name representing the Warrant being issued to such Purchaser at the
Closing, (iii) an executed copy of the Security Agreement, and (iv) an
executed
copy of the Investor Rights Agreement (defined below), and (b) at the
Closing, each Purchaser will deliver to the Company payment, by check or
wire
transfer in immediately available funds, for the Note and Warrant being
acquired
by such Purchaser at the Closing in an amount equal to the total purchase
price
set forth opposite Purchaser’s name on the Schedule of Purchasers.
4. Representations
and Warranties of the Company.
The
Company hereby represents and warrants to the Purchasers that the statements
contained in the following paragraphs of this Section 4 are all true and
correct as of the date hereof.
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4.1 Corporate
Organization and Authority.
The
Company:
(a) is
a
corporation duly organized, validly existing, authorized to exercise all
its
corporate powers, rights and privileges, and in good standing in the State
of
Delaware;
(b) has
all
requisite corporate power and corporate authority to own, lease and operate
its
properties and to carry on its business as now conducted and as proposed
to be
conducted and possesses all business licenses, franchises, rights and privileges
material to the conduct of its business; and
(c) is
qualified to do business and is in good standing in each jurisdiction in
which
the failure to so qualify would have a Material Adverse Effect. As used in
this
Agreement, “Material
Adverse Effect”
means
a
material adverse effect on, or a material adverse change in, or a group of
such
effects on or changes in, the business, operations, financial condition,
results
of operations, assets or liabilities of the Company.
4.2 Capitalization.
The
authorized capital of the Company consists of:
(a) Preferred
Stock.
Ten
Million (10,000,000) shares of preferred stock, $0.01 par value per share,
of
the Company, none of which shares are issued and outstanding.
(b) Common
Stock.
Three
Hundred Million (300,000,000) shares of Common Stock, of which Sixty-Two
Million
Four Hundred Forty Thousand Eight Hundred Forty-Six (62,440,846) shares are
issued and outstanding. All issued and outstanding shares of Common Stock
have
been duly and validly issued (including, without limitation, issued in
compliance with applicable federal and state securities laws), and are
fully-paid, non-assessable.
(c) The
Company has reserved (a) Twenty Million (20,000,000) shares of Common Stock
for
issuance to the Company’s employees, officers, directors or outside consultants
or contractors pursuant to the 2003 Stock Plan of the Company and (b) Eight
Million Six Hundred Ninety-One Thousand One Hundred Eighty-One (8,691,181)
shares of Common Stock for issuance upon exercise of outstanding warrants.
The
Company has Six Million Three Hundred Ten Thousand Two Hundred Eighty-Three
(6,310,283) shares of Common Stock available for future grant under the 2003
Stock Plan. Except as set forth in Schedule
4.2,
there
are no outstanding, authorized or legally mandated preemptive rights, options,
warrants, purchase rights, calls, subscription rights, conversion rights,
exchange rights, or other contracts or commitments that could require the
Company to issue, sell, or otherwise cause to become outstanding any of its
capital stock. There are no outstanding or authorized stock appreciation,
phantom stock, profit participation, restricted stock units or similar rights
with respect to the Company or any shares of its capital stock. Except as
set
forth in Schedule
4.2,
there
are no voting trusts, stockholder agreements, proxies or other agreements
or
understandings in effect with respect to the voting or transfer of any of
the
shares of capital stock of the Company.
4.3 Subsidiaries.
Except
as set forth in Schedule
4.3,
the
Company does not presently own, have any investment in, or control, directly
or
indirectly, any corporation, limited liability company, limited partnership
or
other business entity. Except as set forth in Schedule
4.3,
the
Company is not a participant in any joint venture or general
partnership.
4.4 Authorization.
All
corporate action on the part of the Company, its directors and stockholders
necessary for the authorization, execution, delivery and performance of all
obligations under this Agreement, the Security Agreement, the Investor Rights
Agreement (as defined below), and any other agreement or document to be
delivered in connection herewith or therewith, and for the issuance and delivery
of the Notes and the Warrants and the shares of Common Stock issuable upon
conversion of the Notes and exercise of the Warrants has been taken, and
this
Agreement constitutes, and the Notes and Warrants, when issued in accordance
with the terms hereof will constitute, valid and legally binding obligations
of
the Company enforceable in accordance with their respective terms, except
as
limited by applicable bankruptcy, insolvency, reorganization, moratorium
or
other laws of general application relating to or affecting enforcement of
creditors’ rights and rules of law concerning equitable remedies.
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COPY
4.5 Brokers
and Finders.
The
Company has not retained any investment banker, broker, or finder in connection
with the transactions contemplated by this Agreement.
4.6 Litigation.
Except
as set forth in Schedule
4.6,
there
is no action, suit, proceeding or, to the Company’s knowledge, investigation
pending or threatened against the Company that challenges the validity of this
Agreement or any other agreement or document to be delivered in connection
herewith or the right of the Company to enter into this Agreement or that might
result, either individually or in the aggregate, in any material adverse changes
in the assets, condition or affairs of the Company, nor is the Company aware
of
any basis for the foregoing.
4.7 Financial
Information.
All
financial information, tax returns, and other documents and information
delivered or shown to Purchasers and listed in Schedule
4.7
are
accurate and complete and the information therein accurately reflects the
operations and results of the business of the Company for the applicable periods
shown. The Company has no material liabilities, contingent or otherwise, other
than (i) liabilities incurred in the ordinary course of business subsequent
to
December 31, 2005 (ii) obligations under contracts and commitments incurred
in
the ordinary course of business and not required under generally accepted
accounting principles to be reflected in the financial statements, which, in
both cases, individually or in the aggregate are not material to the financial
condition or operating results of the Company.
4.8 Taxes.
All
known business, income, sales, use, withholding, social security, state
disability, unemployment insurance or similar tax liabilities of the Company
and
the business of the Company have been fully satisfied or provided for, and
there
are no audits pending by, or disputes with, any tax authority with respect
to
such items.
4.9 Intellectual
Property.
The
Company owns, or has rights to use, all patents, patent applications,
trademarks, trademark applications, services marks, trade names, copyrights,
licenses and rights which are necessary or material for use in connection with
its business, and which the failure to so have would have a Material Adverse
Effect (collectively, the “Intellectual
Property Rights”).
Except as set forth in Schedule
4.9,
all
such Intellectual Property Rights are enforceable and, to the Company’s
knowledge, there is no existing infringement by another person or entity of
any
of the Intellectual Property Rights.
4.10 Offering.
Assuming the accuracy of the representations and warranties of the Purchasers
in
Section 5 below, the offer, issuance and sale of the Notes and Warrants are
and
will be, and the issuance of Common Stock upon conversion of the Notes and
exercise of the Warrants will be, exempt from the registration and prospectus
delivery requirements of the Securities Act of 1933, as amended (the
“Securities
Act”)
and
have been registered or qualified (or are exempt from registration and
qualification) under the registration, permit, or qualification requirements
of
all applicable state securities laws.
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COPY
4.11 Guaranties.
The
Company has not assumed, guaranteed, endorsed or otherwise become directly
or
contingently liable on (including, without limitation, liability by way of
agreement, contingent or otherwise, to purchase, to provide funds for payment,
to supply funds to or otherwise invest in the debtor or otherwise to assure
the
creditor against loss) any indebtedness of any other Person. “Person”
means
an individual, corporation, partnership, limited liability company, joint
venture, trust, or unincorporated organization, or a government or any agency
or
political subdivision thereof.
4.12 Preemptive
Rights.
Except
as set forth in Schedule
4.12,
no
investor in the Company, existing as of the date of this Agreement has, or
is
expected to have, any preemptive right as to any future issuance of securities
of any kind by the Company.
4.13 Accuracy
of Representations.
None of
the representations made by the Company herein, and in any of the documents
to
be delivered in connection herewith, shall contain any untrue statement of
a
material fact or omit or, as of the Closing, will omit to state a material
fact
necessary to make the statements contained herein or therein not
misleading.
5. Representations
and Warranties by the Purchasers.
Each
Purchaser represents and warrants to the Company as of the time of issuance
of
the Notes and Warrants as follows:
5.1 Investment
Intent
The
Notes, Warrants and the securities issuable upon conversion of the Notes and
exercise of the Warrants (collectively, the “Underlying
Securities;
the
Underlying Securities, the Notes and the Warrants are collectively referred
to
herein as the “Securities”)
will
be acquired for each Purchaser’s own account, for investment and not with a view
to, or for resale in connection with, any distribution or public offering
thereof within the meaning of the Securities Act, or any applicable state
securities laws.
5.2 Securities
Not Registered.
Each
Purchaser understands that none of the Securities has been registered under
the
Securities Act by reason of their issuance in a transaction exempt from the
registration and prospectus delivery requirements of the Securities Act pursuant
to Section 4(2) thereof, that the Company has no present intention of
registering any of the Securities, that the Securities must be held by such
Purchaser indefinitely, and that such Purchaser must therefore bear the economic
risk of such investment indefinitely, unless a subsequent disposition thereof
is
registered under the Securities Act or is exempt from registration. Each
Purchaser further understands that the Securities have not been qualified under
applicable state securities laws by reason of their issuance in a transaction
exempt from the qualification requirements of applicable state securities laws,
which exemption depends upon, among other things, the bona fide nature of such
Purchaser’s investment intent expressed above.
5.3 Full
Disclosure.
Each
Purchaser and its representatives has been given all such information as has
been requested in order to evaluate the merits and risks of the prospective
investment contemplated herein. Notwithstanding the foregoing, such due
diligence investigation shall not limit the representations and warranties
made
by the Company in Section 4 hereof.
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5.4 Accredited
Investor.
Each
Purchaser: (i) is an “Accredited
Investor”
as
that
term is defined in Rule 501 of Regulation D promulgated under the
Securities Act or has such knowledge and experience in financial and business
matters as to be capable of evaluating the merits and risks of such Purchaser’s
prospective investment in the Securities; (ii) has the ability to bear the
economic risks of such Purchaser’s prospective investment, including a complete
loss of such Purchaser’s investment in the Securities; and (iii) has not
been offered the Securities by any form of advertisement, article, notice or
other communication published in any newspaper, magazine, or similar media
or
broadcast over television or radio, or any seminar or meeting whose attendees
have been invited by any such media.
5.5 Authority.
Each
Purchaser has the full right, power and authority to enter into and perform
such
Purchaser’s obligations under this Agreement, and this Agreement constitutes a
valid and binding obligation of such Purchaser enforceable in accordance with
its terms except as limited by applicable bankruptcy, insolvency,
reorganization, fraudulent conveyance, moratorium, usury or other laws of
general application relating to or affecting enforcement of creditors rights
and
rules or laws concerning equitable remedies. No consent, approval or
authorization of or designation, declaration or filing with any governmental
authority on the part of such Purchaser is required in connection with the
valid
execution and delivery of this Agreement.
5.6 No
Transfer.
Each
Purchaser understands that if the Company does not (i) register its Common
Stock with the Securities and Exchange Commission pursuant to Section 12 of
the Securities Exchange Act of 1934, as amended (the “Exchange
Act”),
(ii) become subject to Section 15(d) of the Exchange Act,
(iii) supply information pursuant to Rule 15c2-11 thereunder, or
(iv) have a registration statement covering the Securities (or a filing
pursuant to the exemption from registration under Regulation A of the Securities
Act covering the Securities) under the Securities Act in effect when such
Purchaser desires to sell the Securities, such Purchaser may be required to
hold
the Securities for an indeterminate period. Each Purchaser also understands
that
any sale of the Securities that might be made by such Purchaser in reliance
upon
Rule 144 under the Securities Act may be made only in limited amounts in
accordance with the terms and conditions of that rule.
6. Covenants
of the Company.
6.1 Affirmative
Covenants of the Company.
So long
as any principal amount or accrued interest under the Notes is outstanding,
the
Company shall deliver to each of the Purchasers: (a) audited annual financial
statements within ninety (90) days after the end of each fiscal year, beginning
with the 2006 fiscal year; and (ii) unaudited quarterly financial statements
within forty five (45) days of the end of each fiscal quarter.
6.2 Negative
Covenants of the Company.
Without
limiting any other covenants and provisions hereof, the Company covenants and
agrees that, as long as any of the Notes are outstanding, it will comply with
and observe the following covenants and provisions, and will not, without the
prior written consent of the Holders constituting a majority of the outstanding
principal amount of the Notes:
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(a) Indebtedness.
Authorize, create, incur, assume or suffer to exist any indebtedness, except
for:
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(i)
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the
Notes;
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(ii)
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indebtedness
set forth in Section
1.3;
and
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(iii)
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indebtedness
that is subordinate to the Notes.
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(b) Mergers,
Sale of Assets, etc.
Merge
or consolidate with, or sell, assign or otherwise dispose of or part with the
control of (whether in one transaction or in a series of transactions)
substantially all of its assets (whether now owned or hereafter acquired) to,
any Person, except for currently existing arrangements with Pay By Touch and
arrangements with Pay By Touch that are contemplated by existing agreements
with
Pay By Touch and except that the Company may merge any Person into it or
otherwise acquire such Person as long as the Company is the surviving entity,
such merger or acquisition does not result in the violation of any of the
provisions of this Agreement and no such violation exists at the time of such
merger or acquisition or immediately thereafter, and provided that such merger
or acquisition does not result in the transfer of fifty percent (50%) or more
of
the outstanding securities of the Company.
(c) Repurchase;
Redemption.
Effect
any repurchase or redemption of any equity securities of the Company; except
pursuant to currently existing arrangements with Pay By Touch and arrangements
with Pay By Touch that are contemplated by existing agreements with Pay By
Touch
set forth in Schedule
6.2(c).
7. Redemption
by the Company.
At any
time prior to the Maturity Date (as defined in the Notes), the Company may
choose to redeem the Notes by payment of the Disposition Payment (as defined
below), provided, however, that the Company shall give ten (10) days prior
written notice to each Purchaser of such intention to redeem the Notes; and
further provided that during such 10-day period, in lieu of such redemption,
each Purchaser may elect to convert all principal and interest then outstanding
under the Notes into Common Stock or any other equity securities of the Company,
in accordance with the conversion provisions set forth in the Notes.
The
“Disposition
Payment”
shall
be equal to the outstanding principal balance of each Note and all accrued
but
unpaid interest.
8. Investor
Rights Agreement.
The
Company shall grant the holder(s) of the Notes and Warrants all the rights
of a
“Holder”
under
the Investor Rights Agreement of even date herewith by and among the Company
and
the Purchasers, in substantially the form attached hereto as Exhibit
E
(the
“Investor
Rights Agreement”),
including, without limitation, the registration rights contained
therein.
9. Miscellaneous.
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9.1 Legal
Expenses.
Each
party will bear its own legal and other fees and expenses in connection with
the
transactions contemplated in this Agreement; except that the Company shall
pay
up to $50,000 of the legal fees incurred by counsel to the
Purchasers.
9.2 Waivers
and Amendments.
Any
provision of this Agreement and the Notes may be amended, waived or modified
upon the written consent of the Company and the Purchasers holding a majority
in
interest of the then-outstanding principal amount of the Notes.
9.3 Governing
Law.
This
Agreement and all actions arising out of or in connection with this Agreement
shall be governed by and construed in accordance with the laws of the State
of
New York, without regard to the conflicts of law provisions of the State of
New
York or of any other state.
9.4 Choice
of Venue; Waiver of Right to Jury.
(a) THIS
AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE
DEEMED MADE, EXECUTED, PERFORMED AND CONSTRUED
IN ACCORDANCE WITH AND BE GOVERNED BY THE LAW OF THE STATE OF NEW YORK. ANY
LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER DOCUMENT
MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK OR OF THE UNITED STATES
FOR THE SOUTHERN DISTRICT OF NEW YORK, IN EACH CASE WHICH ARE LOCATED IN THE
COUNTY OF NEW YORK, AND, BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH
PARTY
HEREBY IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY
AND UNCONDITIONALLY, THE NON-EXCLUSIVE JURISDICTION OF THE AFORESAID COURTS.
EACH PARTY HEREBY FURTHER IRREVOCABLY WAIVES ANY CLAIM THAT ANY SUCH COURTS
LACK
PERSONAL JURISDICTION OVER SUCH PARTY, AND AGREES NOT TO PLEAD OR CLAIM IN
ANY
LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER DOCUMENT
BROUGHT IN ANY OF THE AFORESAID COURTS THAT ANY SUCH COURT LACKS PERSONAL
JURISDICTION OVER SUCH PARTY. EACH PARTY FURTHER IRREVOCABLY CONSENTS TO THE
SERVICE OF PROCESS OUT OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION
OR
PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL,
POSTAGE PREPAID, TO ANY SUCH PARTY AT ITS ADDRESS FOR NOTICES AS PROVIDED IN
SECTION 9.6 HEREOF, SUCH SERVICE TO BECOME EFFECTIVE 30 DAYS AFTER SUCH MAILING.
EACH PARTY HEREBY IRREVOCABLY WAIVES ANY OBJECTION TO SUCH SERVICE OF PROCESS
AND FURTHER IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN ANY ACTION
OR
PROCEEDING COMMENCED HEREUNDER OR UNDER ANY OTHER DOCUMENT THAT SUCH SERVICE
OF
PROCESS WAS IN ANY WAY INVALID OR INEFFECTIVE. NOTHING HEREIN SHALL AFFECT
THE
RIGHT OF THE PARTY UNDER THIS AGREEMENT TO SERVE PROCESS IN ANY OTHER MANNER
PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST
ANY PARTY IN ANY OTHER JURISDICTION.
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(b) EACH
PARTY HEREBY IRREVOCABLY WAIVES ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER
HAVE
TO THE LAYING OF VENUE OF ANY OF THE AFORESAID ACTIONS OR PROCEEDINGS ARISING
OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER DOCUMENT BROUGHT
IN THE
COURTS REFERRED TO IN CLAUSE (a) ABOVE AND HEREBY FURTHER IRREVOCABLY WAIVES
AND
AGREES NOT TO PLEAD OR CLAIM IN ANY SUCH COURT THAT ANY SUCH ACTION OR
PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT
FORUM.
(c) EACH
OF
THE PARTIES TO THIS AGREEMENT HEREBY IRREVOCABLY WAIVES ALL RIGHT TO A TRIAL
BY
JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING
TO
THIS AGREEMENT, THE OTHER DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY
OR
THEREBY.
9.5 Entire
Agreement.
This
Agreement together with the Notes, the Warrants, the Security Agreement,
and the
Investor Rights Agreement, in substantially the forms attached hereto as
Exhibit B, Exhibit
C, Exhibit
D,
and
Exhibit E,
respectively, constitute the full and entire understanding and agreement
between
the parties with regard to the subjects hereof and thereof.
9.6 Notices,
etc.
All
notices and other communications required or permitted hereunder shall be
in
writing and shall be sent via facsimile, overnight courier service or mailed
by
certified or registered mail, postage prepaid, return receipt requested,
addressed or sent (a) if to a Purchaser, at the address or facsimile number
of the Purchaser set forth on such Purchaser’s signature page to this Agreement,
or at such other address or number as the Purchaser shall have furnished
to the
Company in writing, or (b) if to the Company, at 0000 Xxxx Xxxxxx, Xxxxx
000, Xxx Xxxxx, Xxxxxx 00000, or at such other address or number as the Company
shall have furnished to the Purchaser in writing.
9.7 Validity.
If any
provision of this Agreement, the Notes or the Warrants shall be judicially
determined to be invalid, illegal or unenforceable, the validity, legality
and
enforceability of the remaining provisions shall not in any way be affected
or
impaired thereby.
9.8 Counterparts.
This
Agreement may be executed in any number of counterparts, each of which shall
be
an original, but all of which together shall be deemed to constitute one
instrument.
[Signature
page follows]
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IN
WITNESS WHEREOF, the parties have caused this Secured Convertible Note and
Warrant Purchase Agreement to be duly executed and delivered by their proper
and
duly authorized officers as of the date and year first written
above.
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COMPANY:
WINWIN
GAMING, INC.
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a
Delaware corporation
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| By: | /s/ Xxxxxxx Xxxxxx | |
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Name: Xxxxxxx Xxxxxx |
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Title:
President & Chief Executive
Officer
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[SIGNATURE
PAGE TO SECURED CONVERTIBLE NOTE
AND
WARRANT PURCHASE AGREEMENT]
| PURCHASERS: | ||
| By: | /s/ Xxxxxxx Xxxxxxx | |
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| Print Name: | Calico Capital Group | |
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| Address: |
000
Xxxx Xxxxxx
0xx
Xxxxx Xxxx.
Xxx
Xxxx, XX 00000
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EXECUTIVE
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[SIGNATURE
PAGE TO SECURED CONVERTIBLE NOTE
AND
WARRANT PURCHASE AGREEMENT]
| PURCHASERS: | ||
| By: | /s/ Xxxxxx Xxxxx | |
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| Print Name: | Xxxxxx Xxxxx | |
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| Address: |
0000
Xxxxxxx Xxxxxx
Xxxxx
Xxxxxx, XX 00000
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EXECUTIVE
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[SIGNATURE
PAGE TO SECURED CONVERTIBLE NOTE
AND
WARRANT PURCHASE AGREEMENT]
| PURCHASERS: | ||
| By: | /s/ Xxxxxxx Xxxxx | |
|
|
||
| Print Name: | Patriot Capital Limited | |
|
|
||
| Address: |
12/E
Novel Industrial Xxxxxxxx
000-000
Xxx Xxx Xxx Xxxx
Xxxxxx
Sha Wan, Kowloon
Hong
Kong
|
|
|
|
||
EXECUTIVE
COPY
[SIGNATURE
PAGE TO SECURED CONVERTIBLE NOTE
AND
WARRANT PURCHASE AGREEMENT]
| PURCHASERS: | ||
| By: | /s/ Xxxx Tunnery | |
|
|
||
| Print Name: | MLA Capital, Inc. | |
|
|
||
| Address: |
00000
Xxxxx Xxxxxx Xxxx.
Xxxxx 0000
Xxx Xxxxxxx, XX 00000
|
|
|
|
||
EXECUTIVE
COPY
[SIGNATURE
PAGE TO SECURED CONVERTIBLE NOTE
AND
WARRANT PURCHASE AGREEMENT]
| PURCHASERS: | ||
| By: | /s/ N.J. Xxxxx | |
|
|
||
| Print Name: | Ridgewood Ltd. | |
|
|
||
| Address: |
000
Xxxxx Xxxx
Xxxxxxxxx, XX 00000
|
|
|
|
||
EXECUTIVE
COPY
Schedule
1.3
Schedule
of Senior Debt
| Name | Amount | |
| Pay By Touch | $2,500,000 |
