Exhibit 10.28
Form of Subscription Agreement
Used for Private Placements
THE SECURITIES BEING SUBSCRIBED TO HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR WITH ANY
SECURITIES REGULATORY AUTHORITY OF ANY JURISDICTION. THESE SECURITIES ARE
OFFERED PURSUANT TO A CLAIM OF EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF
FEDERAL AND STATE SECURITIES LAWS.
WINWIN GAMING, INC.
REGULATION D SUBSCRIPTION AGREEMENT
(Domestic Subscribers)
Dated:
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Name and Address of Subscriber Amount of Investment
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Aggregate Price $
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Per Share Price $
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Number of Units Purchased
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REGULATION D SUBSCRIPTION AGREEMENT, dated as of the date specified
above, by and between WINWIN GAMING, INC., a Delaware corporation (the
"Company"), and the Subscriber subscriber (the "Subscriber").
BACKGROUND
The Company is seeking to raise capital through an offering (the
"Offering") to accredited investors of units (each a "Unit"). Each Unit consists
of one share of the Company's Common Stock, $0.01 par value per share ("Common
Stock") and a three-year warrant to purchase one share of the Company's Common
Stock at an exercise price equal to the Per Share Price specified above (the
"Per Share Price"). The Subscriber desires to subscribe for the number of Units
specified in the box above (the "Units").
NOW, THEREFORE, in consideration of the premises and the respective
promises hereinafter set forth, the parties hereto hereby agree as follows:
1. SUBSCRIPTION. The Subscriber hereby executes and delivers this Subscription
Agreement (the "Subscription Agreement") and subscribes for and agrees to
purchase the number of Units of listed in the box above under the caption
"Number of Units Purchased", at a purchase price per Unit equal to the Per Share
Price for an aggregate subscription price equal to the amount listed in the box
above under the caption "Aggregate Price" and encloses a check payable to WinWin
Gaming for such Aggregate Amount all in accordance with the terms of this
Subscription Agreement.
2. SUBSCRIPTION INSTRUMENTS. The Subscriber is delivering to the Company the
following instruments with respect to the Units(such instruments hereinafter
collectively referred to as the "Subscription Instruments"), all of which have
been duly completed and executed by the Subscriber:
(a) A check in the Aggregate Amount payable to WinWin Gaming, Inc.;
(b) One copy of this Subscription Agreement; and
(c) One copy of the investor questionnaire.
3. ACCEPTANCE OR REJECTION OF SUBSCRIPTION. The Subscriber understands and
agrees that:
(a) The Company reserves the right to reject this subscription for the
Units, in whole or in part, and at any time prior to acceptance;
(b) If this subscription is rejected the Subscription Instruments,
including the check enclosed herewith, will be promptly returned to the
Subscriber and this Subscription Agreement shall have no force or effect;
(c) There is no minimum number of Units being sold in this offering.
Therefore, the Subscriber is investing in Units without assurance of any
additional investors whatsoever; and
(d) The Units being offered hereby are being offered and sold by the
Company which will receive the proceeds from the sale of the Units.
4. REPRESENTATIONS AND WARRANTIES. In connection with the Subscriber's purchase
of Units, the Subscriber hereby represents and warrants as follows:
(a) The Subscriber understands the business in which the Company will be
engaged and has such knowledge and experience in financial and business matters
that he, she or it is capable of evaluating the merits and risks of an
investment in the Company and making an informed investment decision with
respect thereto. The Subscriber has obtained sufficient information to evaluate
the merits and risks of the investment and to make such a decision.
(b) The Subscriber is an "Accredited Investor" (as such term is defined in
Rule 501(a) of Regulation D of the Securities Act of 1933) and has completed the
investor questionnaire provided by the Company, certifies the information
contained therein and has signed and delivered such questionnaire back to the
Company and understands that the Company will rely on it in selling Units to the
Subscriber pursuant to this Agreement.
(c) The Subscriber has had access to all documents, records and books of
the Company pertaining to this investment. Additionally, the Subscriber has been
provided the opportunity to ask questions and receive answers concerning the
terms and conditions of the offering and to obtain any additional information
which the Company possesses, or can acquire without unreasonable effort or
expense, that is relevant to the Subscriber's investment decision.
(d) The Subscriber
(i) has adequate means of providing for the Subscriber's current
needs and possible personal contingencies and those of the
Subscriber's family, if applicable, in the same manner as the
Subscriber would have been able to provide prior to making the
investment in the Units,
(ii) has no need for liquidity in this investment,
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(iii) is aware of and able to bear the risks of the investment for
an indefinite period of time ,and
(iv) presently, based on existing conditions, is able to afford a
complete loss of such investment.
(e) The Subscriber has obtained copies of the reports filed by the Company
with the Securities and Exchange Commission (the "SEC") since the filing of the
Company's last annual report on Form 10-KSB (the "SEC Filings"), including the
Company's most recently filed quarterly and current reports filed with the SEC
and has carefully reviewed all of the information contained in the SEC Filings,
including the risk factors contained in such reports and fully understands all
of the disclosure contained therein. The Subscriber recognizes that the Company
has limited financial or operating history and that the Units as an investment
involve significant risks.
(f) The Subscriber understands that the Units are "restricted securities"
as that term is defined pursuant to Rule 144 of the Securities Act, and have not
been registered under the Securities Act or under certain state securities laws
in reliance upon exemptions therefrom for nonpublic offerings. The Subscriber
understands that the Units must be held indefinitely unless the sale thereof is
subsequently registered under the Act and under certain state securities laws or
an exemption or exemptions from such registration are available.
(g) The Units are being purchased solely for the Subscriber's account for
investment and not for the account of any other person and not with a view to or
for distribution, assignment or resale in connection with any distribution
within the meaning of the Securities Act, and no other person has a direct or
indirect beneficial interest in such Units. The Subscriber represents that the
Subscriber has no agreement, understanding, commitment or other arrangement with
any person and no present intention to sell, transfer or assign any Units.
(h) The Subscriber agrees not to sell or otherwise transfer the Units
unless they are registered under the Act and under any applicable state
securities laws, or an exemption or exemptions from such registration are
available.
(i) The Subscriber, if a corporation, partnership, trust or other entity,
is authorized and otherwise duly qualified to purchase and hold Units and to
enter into this Subscription Agreement and such entity has not been formed for
the specific purpose of acquiring Units in the Company unless all of its equity
owners qualify as accredited individual investors.
(j) All information which the Subscriber has provided to the Company
concerning the Subscriber, the Subscriber's financial position and knowledge of
financial and business matters, or, in the case of a corporation, partnership,
trust or other entity, concerning such knowledge of the person making the
investment decision on behalf of such entity, including all information
contained in this Subscription Agreement, is correct and complete as of the date
set forth on the signature page hereof, and if there should be any adverse
change in such information prior to the subscription being accepted, the
Subscriber will immediately provide the Company with such information.
5. INDEMNIFICATION. The Subscriber agrees to indemnify and hold harmless the
Company from and against all liability, damage, losses, costs and expenses
(including reasonable attorneys' fees and court costs) which they may incur by
reason of any breach of the representations and warranties made by the
Subscriber herein, or in any document provided by the Subscriber to the Company.
6. MARKET STANDOFF PROVISION. The Subscriber hereby agrees that, if so requested
by the Company or any representative of the underwriters (the "Managing
Underwriter") in connection with any registration of the offering of any
securities of the Company under the Securities Act, the Subscriber shall not
sell or otherwise transfer any Securities or other securities of the Company
during the 180-day period (or such other period as may be requested in writing
by the Managing Underwriter and agreed to in writing by the Company) (the
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"Market Standoff Period") following the effective date of a registration
statement of the Company filed under the Securities Act. The Company may impose
stop-transfer instructions with respect to Securities subject to the foregoing
restrictions until the end of such Market Standoff Period.
7. ADDITIONAL ACTION. The Subscriber shall, upon the request of the Company,
from time to time, execute and deliver promptly to the Company all instruments
and documents of further assurances or otherwise and will do any and all such
acts and things as may be reasonably required to carry out the obligations of
the Subscriber hereunder and to consummate the transactions contemplated hereby.
8. MISCELLANEOUS.
(a) The Subscriber agrees not to transfer or assign this Subscription
Agreement, or any of the Subscriber's interest herein, and further agrees that
the transfer or assignment of the Units acquired pursuant hereto shall be made
only in accordance with all applicable laws.
(b) The Subscriber agrees that subject to any applicable state law, the
Subscriber may not cancel, terminate or revoke this Subscription Agreement or
any agreement of the Subscriber made hereunder and that this Subscription
Agreement shall survive the acceptance hereof by the Company as well as the
death or disability of the Subscriber and shall be binding upon the Subscriber's
heirs, executors, administrators, successors and assigns.
(c) This Subscription Agreement constitutes the entire agreement among the
parties hereto with respect to the subject matter hereof and may be amended only
by a writing executed by all parties hereto.
(d) All notices provided for in this Agreement shall be in writing signed
by the party giving such notice, and delivered personally or sent by overnight
courier or messenger or sent by registered or certified mail, return receipt
requested, or by telex, facsimile transmission, telegram or similar means of
communication if confirmed by mail to the Company at its current address or such
other address as may be specified in the Company's reports that are filed from
time to time with the SEC and to the Subscriber at its address as it appears on
the books and records of the Company. Notices shall be deemed to have been
received on the date of personal delivery or facsimile, or if sent by certified
or registered mail, return receipt requested, shall be deemed to be delivered on
the third business day after the date of mailing. A copy of any notice shall
also be delivered to the Company's counsel, Xxxxxx Xxxx & Priest LLP, 000
Xxxxxxxxxxxx Xxxxxx, X.X., Xxxxxxxxxx, XX 00000, Attention: Xxxxx X. Xxxxxxxxxx,
Esq., Facsimile: (000) 000-0000.
(e) Governing Law; Venue.
(i) This Agreement shall be enforced, governed and construed in
accordance with the laws of the State of New York without
giving effect to choice of laws principles or conflict of laws
provisions thereof.
(ii) In the event of any dispute or difference arising out of or
relating to this Agreement (the "Dispute"), the parties hereto
shall use their best efforts to settle such Dispute. To this
end, the parties shall consult and negotiate with each other,
in good faith and understanding of their mutual interests, to
reach a just and equitable solution satisfactory to both
parties. If they do not reach such a solution within a period
of thirty (30) days, either party may then by written notice
to the other (the "Notice of Arbitration") submit the dispute
to final and binding arbitration in the State of New York in
accordance with the International Arbitration Rules of the
American Arbitration Association (AAA). The Company and the
Subscriber expressly consent and agree to arbitration
hereunder. Within seven (7) days after receipt of the Notice
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of Arbitration, the Company shall nominate and appoint an
arbitrator (the "First Arbitrator") and the Subscriber shall
nominate and appoint an arbitrator (the "Second Arbitrator").
Within seven (7) days after the appointment of the First
Arbitrator and the Second Arbitrator, the two arbitrators
shall appoint a third arbitrator (the "Third Arbitrator"), or,
if the first two arbitrators cannot agree on the appointment
of the third, the Third Arbitrator shall be selected by the
AAA. If either party fails or refuses to appoint the First
Arbitrator or the Second Arbitrator within the specified time,
the arbitrator appointed by the other party shall be the sole
arbitrator for purposes of resolving the Dispute. The
arbitrators or the sole arbitrator, as the case may be, shall
resolve the Dispute and render an award within one hundred
eighty (180) days after receipt of the Notice of Arbitration.
Judgment upon the award may be entered, or application for
judicial acceptance or confirmation of the award may be made,
in any competent court having jurisdiction thereof. In the
event of any Dispute, the parties shall continue to perform
their respective obligations under this Agreement during the
pendency of arbitration proceedings unless and until the
arbitration panel otherwise orders.
(iii) The parties hereby irrevocably consent and submit to the
jurisdiction of the state and federal courts located in the
State of New York for all purposes, including the enforcement
of a judgment of an arbitration award resulting from any
arbitration pursuant hereto.
(iv) Subscriber hereby waives, and agrees not to assert against the
Company, or any successor assignee thereof, by way of motion,
as a defense, or otherwise, in any such suit, action or
proceeding, (i) any claim that the Subscriber is not
personally subject to the jurisdiction of the above-named
courts or to an arbitration proceeding hereunder, and (ii) to
the extent permitted by applicable law, any claim that such
arbitration proceeding or proceeding relating to the
enforcement of an arbitration award is in an inconvenient
forum or that the venue of any such proceeding is improper or
that this Agreement may not be enforced in or by arbitration
or that judgment upon an arbitration award may not be entered
in any such courts.
[signature page follows]
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SUBSCRIBER SIGNATURE PAGE
IN WITNESS WHEREOF, the Subscriber has executed this Regulation D
Subscription Agreement as of the date first above written.
For Individuals:
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Print Name Above
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Sign Name Above
For Entities:
Print Name of Entity Above
By: _______________________________
Name:
Title:
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WINWIN GAMING, INC.
SUBSCRIPTION ACCEPTANCE
IN WITNESS WHEREOF, the undersigned, intending to be legally bound,
hereby accepts the subscription by to purchase Units in accordance with the
terms of the foregoing Subscription Agreement as of the date first above
written.
WINWIN GAMING, INC.
By:
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Its:
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