EXHIBIT 10.1
Amendment No. 1
To Securities Purchase Agreement
AMENDMENT NO. 1 TO SECURITIES PURCHASE AGREEMENT
AMENDMENT NO. 1 TO SECURITIES PURCHASE AGREEMENT, dated as of April __,
2005 (this "Amendment"), by and among WINWIN GAMING, INC., a Delaware
corporation (the "Company") and the Buyer executing this Amendment who is the
holder of a majority of the Offered Shares. Capitalized terms used, but not
otherwise defined, herein have the meanings ascribed to such terms in that
certain Securities Purchase Agreement, dated February 25, 2005, among the
Company and the Buyers (the "Agreement").
BACKGROUND
The Parties are parties to the Agreement, pursuant to which the Buyer
acquired 4,000,000 Offered Shares for $2,000,000. In connection with the
Agreement, on February 25, 2005, the Buyer also entered into a Registration
Rights Agreement with the Company (the "Registration Rights Agreement"),
pursuant to which the Company agreed to register the Buyer's Offered Shares for
re-sale within a specified period of time. Pursuant to Section 1(b)(ii) of the
Agreement, the Company was permitted to sell additional Offered Shares on the
terms specified in the Agreement for a period of thirty days following the
Closing Date and prior to the filing of the registration statement contemplated
by the Registration Rights Agreement; provided that the Buyer would have the
right to acquire up to 2,000,000 Offered Shares at the first Subsequent Closing
or upon the expiration of the thirty day period. Such thirty day period has now
expired and the parties desire to extend such period as specified below.
Section 9(e) of the Agreement provides that the Agreement may be amended
by an instrument in writing signed by the Company and the holders of a majority
of the Offered Shares. This Amendment satisfies the requirements of Section 9(e)
and is effective to amend the Agreement.
NOW, THEREFORE, the parties hereto, intending to be legally bound and in
consideration of the mutual agreements and covenants contained herein and for
such other good and valuable consideration the receipt and sufficiency of which
is hereby acknowledged, agree as follows:
1. Amendment to Section 1(b)(ii) of the Agreement. The Agreement is hereby
amended to delete Section 1(b)(ii) thereof in its entirety and in lieu thereof
to insert the following new Section 1(b)(ii):
" ii. Subsequent Closings. It is anticipated that new investors
reasonably approved by the initial Buyer hereunder (the "New
Buyers") may not be purchasing Offered Shares at the initial
Closing, but may acquire Offered Shares in an aggregate amount
(taken together with the Offered Shares acquired by the initial
Buyer) not to exceed Fourteen Million (14,000,000) shares of Common
Stock at additional closings to occur on or before May 16, 2005
(each a "Subsequent Closing," and together with the Initial Closing,
the "Closings"; with the date of any Initial Closing or Subsequent
Closing, as applicable, being referred to herein as a "Closing
Date"), provided however, that Xxx Xxxxxxx Private Opportunities
Fund L.P. shall have the right to acquire up to 2,000,000 Offered
Shares at the first Subsequent Closing of at least 1,000,000 Offered
Shares to New Buyers, or if no such Subsequent Closing occurs, on
May 16, 2005. Any such Offered Shares Xxx Xxxxxxx Private
Opportunities Fund L.P. elects not to purchase at the first
Subsequent Closing shall thereafter be available for sale as
otherwise provided in this Section 1.b.ii. Any sales of Offered
Shares and Warrants at Subsequent Closings shall be made on the
terms and conditions set forth in this Agreement and shall be
considered to have been issued pursuant hereto. The Schedule of
Buyers shall be amended at each Subsequent Closing, without the need
to obtain the consent of any party hereto, to reflect the name and
address of each New Purchaser participating in such Subsequent
Closing, the number of Offered Shares issued at such Subsequent
Closings and the other information required by the Schedule of
Buyers. Each New Purchaser who participates in a Subsequent Closing
shall execute and deliver to the Company a counterpart signature
page or joinder to this Agreement pursuant to which each such New
Purchaser agrees to be bound by the terms and provisions hereof. The
Company shall deliver to each such New Purchaser at each Subsequent
Closing a Compliance Certificate executed by an executive officer of
the Company, dated the Subsequent Closing Date, and certifying (i)
that the representations and warranties made by the Company in
Section 3 of this Agreement were true and correct when made, and are
true and correct in all material respects as of the Subsequent
Closing Date and (ii) that all covenants, agreements, and conditions
contained in this Agreement to be performed by the Company on or
prior to the Subsequent Closing have been fully performed or
complied with in all material respects."
2. Agreement Remains in Force. Except as expressly set forth in this
Amendment, the Agreement remains unmodified and in full force and effect.
3. Miscellaneous. This Amendment and the Agreement constitute the entire
understanding among the parties hereto with respect to the subject matter hereof
and may not be further amended, modified or supplemented except as specified in
the Agreement. This Amendment may be executed in any number of counterparts,
each of which shall be deemed an original and enforceable against the Parties
actually executing such counterpart, and all of which, when taken together,
shall constitute one instrument. Facsimile execution and delivery of this
Agreement is legal, valid and binding execution and delivery for all purposes.
[signature page follows]
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of
the date first set forth above.
WINWIN GAMING, INC.
By: /s/ Xxxxxxx Xxxxxx
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Name: Xxxxxxx Xxxxxx
Title: Chief Executive Officer
XXX XXXXXXX PRIVATE OPPORTUNITIES FUND, L.P.
By: /s/ Xxxxxxx Xxx Xxxxxxx
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Xxxxxxx Xxx Xxxxxxx, General partner
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