EXHIBIT 10.22
_______________________, 2007
uWink, Inc.
00000 Xxxx Xxxxxx
Xxx Xxxx, Xxxxxxxxxx 00000
Ladies and Gentlemen:
The undersigned (hereinafter, the "INVESTOR"), hereby confirms and
agrees with the Company as follows:
1. This Subscription Agreement (the "AGREEMENT") is made as the date
hereof between uWink, Inc., a Delaware corporation (the "COMPANY"), and the
Investor.
2. The Company has authorized the sale and issuance of up to
_____________ units (the "UNITS"), each of which consists of ________ shares of
common stock, par value $0.001 per share (the "COMMON STOCK"), and a warrant
(the "WARRANTS") to purchase _______ shares of Common Stock at an exercise price
of $________ per share, to certain investors (the "OFFERING"), as more fully
described in the Placement Agency Agreement, dated as of ___________, 2007 (the
"PLACEMENT AGENCY AGREEMENT"), by and between the Company and Xxxxxxxx Curhan
Ford & Co., as lead placement agent (the "PLACEMENT AGENT"), and: (i) the
Company's preliminary prospectus, dated July 23, 2007, (ii) the Company's free
writing prospectus, dated August 1, 2007 and (iii) the Company's final
prospectus, dated _____________, 2007 (collectively, the "PROSPECTUS") which
forms a part of the Company's Registration Statement on Form SB-2 (File No.
333-144029) (the "REGISTRATION STATEMENT"). A copy of each of the Placement
Agency Agreement and the Prospectus has been furnished to the Investor. All
defined terms used herein and not otherwise defined shall have the same meanings
ascribed to such terms in the Placement Agency Agreement.
3. Subject to execution by the Company and the Placement Agent of the
Placement Agency Agreement and delivery of the Prospectus, the Company and the
Investor agree that the Investor will subscribe for and purchase from the
Company, and the Company will issue and sell to the Investor, the number of
Units set forth on the signature page hereto, at the purchase price of $____ per
Unit, pursuant to the Terms and Conditions for Purchase of the Units attached
hereto as ANNEX I and incorporated herein by reference as if fully set forth
herein. The Investor acknowledges that the Offering is not being underwritten by
the Placement Agent and that there is no minimum offering amount, and that upon
the Investor's acquisition of the Units, the Units will separate and will not be
outstanding securities of the Company. Shares of Common Stock will be credited
to the Investor using customary book-entry procedures.
4. The Investor encloses herewith a check payable to, or will
immediately make a wire transfer payment to "JPMorgan Chase Bank N.A., as Escrow
Agent for uWink, Inc." in the full amount of the purchase price for the Units
being subscribed for.
1
5. The Investor represents that, except as set forth below: (a) it has
had no position, office or other material relationship within the past three
years with the Company or persons known to it to be affiliates of the Company
and (b) it is not a, and it has no direct or indirect affiliation or association
with any, NASD member as of the date hereof (attach additional pages as
necessary).
-------------------------------------------------------------
-------------------------------------------------------------
-------------------------------------------------------------
-------------------------------------------------------------
-------------------------------------------------------------
6. The Investor confirms that it had full access to all filings made by
the Company with the Securities and Exchange Commission, including the
Registration Statement, and that it was able to read, review, download and print
each such filing.
SIGNATURE PAGES FOLLOWING
2
The undersigned Investor hereby confirms that the foregoing correctly
sets forth the agreement between the Investor and the Company by signing in the
space provided below for that purpose.
AGREED AND ACCEPTED:
Name of Investor: ___________________________________
By:________________________________
Name:
Title:
Address of Investor: ___________________________________
___________________________________
___________________________________
___________________________________
Number of Units TO BE
PURCHASED by the
Investor in the Offering:
___________________________________
Purchase Price per Unit:
___________________________________
Total Purchase Price: ___________________________
3
The Company hereby accepts the Investor's subscription for and purchase
of the number of Units set forth on the Investor's signature page hereto.
UWINK, INC.
By: ___________________________________
Name:
Title:
4
ANNEX I
TERMS AND CONDITIONS FOR PURCHASE OF THE UNITS
1. AGREEMENT TO SELL AND PURCHASE THE UNITS; SUBSCRIPTION DATE.
1.1 Upon the terms and subject to the conditions hereinafter set forth,
at the Closing (as defined in Section 2 below), the Company will sell to the
Investor, and the Investor will purchase from the Company, the number of Units
set forth on the signature page of this Agreement, at the purchase price set
forth herein.
1.2 The Company may enter into agreements similar to this Agreement
with certain other investors (the "OTHER INVESTORS") and expects to complete
sales of the Units to them. The Investor and the Other Investors hereinafter
collectively are referred to as the "INVESTORS," and this Agreement and the
agreements executed by the Other Investors are hereinafter collectively referred
to as the "AGREEMENTS". The Company may accept or reject any one or more
Agreements, in whole or in part, in its sole discretion. If an Investor's
Agreement is rejected, funds received from the investor in payment for the Units
purchased pursuant to the rejected Agreement or portion of Agreement will be
returned without interest, deduction, penalty or expense, and this Agreement
will thereafter be of no force or effect.
2. DELIVERY OF THE UNITS AT CLOSING. The Company will hold an initial
closing at any time after the receipt of one or more accepted Subscriptions (the
"INITIAL CLOSING"). After the Initial Closing, subsequent closings of the
purchase and sale of the Units (each a "CLOSING") may take place at any time and
from time to time as provided in Section 2 of the Placement Agency Agreement.
2.1 The Company's obligation to issue and sell the Units to the
Investor shall be subject to the accuracy of the representations and warranties
made by the Investor and the fulfillment of those undertakings of the Investor
to be fulfilled prior to the Closing as set forth in this Agreement.
2.2 The Investor's obligation to purchase the Units shall be subject to
the conditions that: (a) the Placement Agent shall not have terminated the
Placement Agency Agreement pursuant to the terms thereof and (b) the conditions
to closing in the Placement Agency Agreement shall have been satisfied or
waived.
3. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE COMPANY. The
Company hereby represents and warrants to, and covenants with, the Investor, as
follows:
3.1 The Company acknowledges and agrees that each Investor may rely on
the representations and warranties made by it to the Placement Agent in Section
3 of the Placement Agency Agreement to the same extent as if such
representations and warranties had been incorporated in full herein and made
directly to the Investor.
A-1
3.2 This Agreement constitutes a valid and binding obligation of the
Company enforceable against the Company in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' and contracting
parties' rights generally and except as enforceability may be subject to general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law).
4. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE INVESTOR.
4.1 The Investor represents and warrants that it has received the
Prospectus and the Registration Statement. The Investor is aware that an
investment in the Units involves a number of significant risks and has carefully
read and considered the matters set forth in the Prospectus and the Registration
Statement, including but not limited to the Section entitled "Risk Factors."
4.2 The Investor further represents and warrants to, and covenants
with, the Company that: (i) such Investor has full right, power, authority and
capacity to enter into this Agreement and to consummate the transactions
contemplated hereby and has taken all necessary action to authorize the
execution, delivery and performance of this Agreement, and (ii) this Agreement
constitutes a valid and binding obligation of such Investor enforceable against
such Investor in accordance with its terms, except as enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting creditors' and contracting parties' rights generally and
except as enforceability may be subject to general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law).
4.3 The Investor represents and warrants to, and covenants with, the
Company that: (i) individually and/or together with its advisors, the Investor
is knowledgeable, sophisticated and experienced in making, and is qualified to
make, decisions with respect to investments in shares representing an investment
decision like that involved in the purchase of the Units; and (ii) the Investor
has, in connection with its decision to purchase the number of Units set forth
on the signature page of this Agreement, relied solely upon the Registration
Statement, any amendments or supplements thereto and the Prospectus and has not
relied upon any information provided by Xxxxxxxx Curhan Ford & Co. in its
capacity as Placement Agent for the Company.
4.4 The Investor understands that nothing in the prospectus and any
supplement thereto, this Agreement or any other materials presented to such
Investor in connection with the purchase and sale of the Units constitutes
legal, tax or investment advice. Such Investor has consulted such legal, tax and
investment advisors as it, in its sole discretion, has deemed necessary or
appropriate in connection with its purchase of the Units.
4.5 From and after obtaining knowledge of the sale of the Units
contemplated hereby, such Investor has not taken, and prior to the public
announcement of the transaction such Investor shall not take, any action that
has caused or will cause such Investor to have, directly or indirectly, sold or
agreed to sell any Units, Common Stock or Warrants, effected any short sale,
whether or not against the box, established any "put equivalent position" (as
defined in Rule 16a-1(h) under the Securities Exchange Act of 1934, as amended)
with respect to the Units, the Common Stock or the Warrants, granted any other
right (including, without limitation, any put or call option) with respect to
A-2
the Units, the Common Stock or the Warrants, or with respect to any security
that includes, relates to or derives any significant part of its value from the
Units, the Common Stock or the Warrants, whether or not, directly or indirectly,
in order to hedge its position in the Units.
5. SURVIVAL OF REPRESENTATIONS, WARRANTIES AND AGREEMENTS.
Notwithstanding any investigation made by any party to this Agreement, all
covenants, agreements, representations and warranties made by the Company and
the Investor herein shall survive the execution of this Agreement, the delivery
to such Investor of the Units being purchased and the payment therefor.
6. NOTICES. All notices, requests, consents and other communications
hereunder shall be in writing, shall be mailed (A) if within domestic United
States by first-class registered or certified airmail, or nationally recognized
overnight express courier, postage prepaid, or by facsimile, or (B) if delivered
from outside the United States, by International Federal Express or facsimile,
and shall be deemed given: (i) if delivered by first-class registered or
certified mail domestic, three business days after so mailed, (ii) if delivered
by a nationally recognized overnight carrier, one business day after so mailed,
(iii) if delivered by International Federal Express, two business days after so
mailed, (iv) if delivered by facsimile, upon electronic confirmation of receipt
and shall be delivered as addressed as follows: (a) if to the Company, then as
provided in Section 11 of the Placement Agency Agreement; and (b) if to an
Investor, at its address set forth on the signature page of this Agreement, or
at such other address or addresses as may have been furnished to the Company in
writing.
7. CHANGES. This Agreement may not be modified or amended except
pursuant to an instrument in writing signed by the Company and the Investor.
8. HEADINGS. The headings of the various sections of this Agreement
have been inserted for convenience or reference only and shall not be deemed to
be part of this Agreement.
9. SEVERABILITY. In case any provision contained in this Agreement
should be invalid, illegal or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions contained herein shall
not in any way be affected or impaired thereby.
10. GOVERNING LAW. This Agreement shall be governed by, and construed
in accordance with, the internal laws of the State of New York, without giving
effect to the principles of conflicts of law.
11. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall constitute an original, but all of which, when
taken together, shall constitute one instrument, and shall become effective when
one or more counterparts have been signed by each party hereto and delivered to
the other parties. Such counterparts may be delivered by facsimile or other
electronic transmission, which shall not affect the validity thereof.
A-3
