EXHIBIT 10.2
Amendment No. 1
To Registration Rights Agreement
AMENDMENT NO. 1 TO REGISTRATION RIGHTS AGREEMENT
AMENDMENT NO. 1 TO REGISTRATION RIGHTS 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 Registrable Securities. Capitalized terms used, but
not otherwise defined, herein have the meanings ascribed to such terms in that
certain Registration Rights Agreement, dated February 25, 2005, among the
Company and the Buyers (the "Agreement").
BACKGROUND
The Parties are parties to a Securities Purchase Agreement (the "SPA"),
pursuant to which the Buyer acquired 4,000,000 shares of Common Stock for
$2,000,000. In connection with the SPA, on February 25, 2005, the Buyer also
entered into the Agreement with the Company, pursuant to which the Company
agreed to (i) file a registration statement covering the resale of the
Registered Securities as soon as possible but in no event later than 45 days
following the date of the Agreement (i.e., April 11, 2005) and (ii) cause the
registration statement to be declared effective by the SEC as soon as possible,
but in no event later than 120 days after the date of the Agreement (i.e., June
25, 2005). The Parties desire to amend the agreement to extend the Filing
Deadline and the Effectiveness Deadline in order to provide the Company with
additional time to find other investors for its private placement, prepare and
file the registration statement and cause it to become effective.
Section 10 of the Agreement provides that the Agreement may be amended by
the written consent of the Company and Major Investors who then hold a majority
of the Registrable Securities represented by the Major Investors. This Amendment
satisfies the requirements of Section 10 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 2(a) of the Agreement. The Agreement is hereby
amended to delete Section 2(a) thereof in its entirety and in lieu thereof to
insert the following new Section 2(a):
"(a) Mandatory Registration. The Company shall prepare and, as soon as possible
but in no event later than May 31, 2005 (the "Filing Deadline"), file with the
SEC a Registration Statement or Registration Statements (as is necessary) on
Form SB-2 covering the resale of all of the Registrable Securities. In the event
that Form SB-2 is unavailable for such a registration, the Company shall use
such other form as is available for such a registration, subject to the
provisions of Section 2(d). The initial Registration Statement prepared pursuant
hereto shall register for resale all the Registrable Securities. The
Registration Statement shall be declared effective by the SEC as soon as
possible, but in no event later than August 31, 2005 (the "Effectiveness
Deadline")."
2. Acknowledgement Regarding Absence of Trigger Event. The Buyer hereby
waives any past failure of the Company to comply with Section 2(a) prior to the
date hereof and confirms that no Trigger Event has occurred as of the date
hereof.
3. Agreement Remains in Force. Except as expressly set forth in this
Amendment, the Agreement remains unmodified and in full force and effect.
4. 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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