WARRANT TO PURCHASE COMMON STOCK OF WINWIN GAMING, INC.
EXECUTIVE
COPY
THE
SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT
OF 1933, AS AMENDED. SUCH SECURITIES AND ANY SECURITIES OR SHARES ISSUED
HEREUNDER MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION
OR
AN EXEMPTION THEREFROM UNDER SAID ACT. COPIES OF THE AGREEMENT COVERING THE
PURCHASE OF THESE SECURITIES AND RESTRICTING THEIR TRANSFER OR SALE MAY BE
OBTAINED AT NO COST BY WRITTEN REQUEST MADE BY THE HOLDER OF RECORD HEREOF
TO
THE SECRETARY OF THE COMPANY AT ITS PRINCIPAL EXECUTIVE OFFICES.
|
No.
WC- _
|
Date: April __, 2006 |
OF
WINWIN
GAMING, INC.
This
certifies that, for value received, ________________ or its registered assigns
(“Holder”)
is
entitled, subject to the terms and conditions set forth below, to purchase
from
WINWIN
GAMING, INC.,
a
Delaware corporation (the “Company”),
in
whole or in part a number of fully paid and nonassessable shares (the
“Warrant
Shares”) of
common
stock, $0.01 par value per share, of the Company (“Common
Stock”),
equal
to the quotient obtained by dividing (a) seventy-five percent (75%) of
$__________ (the original principal amount of the Note (as defined below))
by
(b) the Exercise Price (as defined below) then in effect. The number, character
and Exercise Price of such shares of Common Stock are subject to adjustment
as
provided below and all references to “Warrant Shares” and “Exercise Price”
herein shall be deemed to include any such adjustment or series of adjustments.
The term “Warrant”
as
used
herein shall mean this Warrant, and any warrants delivered in substitution
or
exchange therefor as provided herein.
This
Warrant is issued pursuant to that certain Secured Convertible Note and Warrant
Purchase Agreement, dated as of even date herewith (the “Purchase
Agreement”),
by
and among the Company, the initial holder of this Warrant and the other
Purchasers party thereto, pursuant to which the initial holder of this Warrant
purchased a secured convertible promissory note of the Company (the
“Note”,
and
together with the other non-transferable secured convertible promissory notes
issued pursuant to the Purchase Agreement, the “Notes”).
The
holder of this Warrant is subject to certain restrictions, and entitled to
certain rights, as set forth in the Purchase Agreement. The Purchase Agreement
is incorporated herein by reference as though fully set forth
herein.
1. Shares
Subject to Warrant.
Subject
to the terms and conditions set forth herein this Warrant shall be exercisable,
in whole or in part, at the election of the Holder of this Warrant, to purchase
a number of fully paid and nonassessable shares of Common Stock at any time
prior to the Expiration Date (as defined below).
2. Exercise
Price.
The
exercise price under this Warrant (the “Exercise
Price”)
shall
be fifty cents ($0.50) per share of Common Stock, subject to the adjustments
set
forth in Section
12
hereof.
3. Term
of Warrant.
Subject
to the terms and conditions set forth herein, this Warrant shall be exercisable,
in whole or in part, during the term (the “Exercise
Period”)
commencing on the date hereof and ending at 5:00 p.m., Eastern standard time,
on
the five (5) year anniversary of the date hereof and shall be void thereafter.
4. Exercise
of Warrant.
(a) Cash
Exercise.
This
Warrant may be exercised by the Holder during the Exercise Period by (i) the
surrender of this Warrant to the Company, with the Notice of Exercise annexed
hereto duly completed and executed on behalf of the Holder, at the office of
the
Company (or such other office or agency of the Company as it may designate
by
notice in writing to the Holder at the address of the Holder appearing on the
books of the Company) and (ii) the delivery of payment to the Company, for
the
account of the Company, by cash, wire transfer of immediately available funds
to
a bank account specified by the Company, certified or bank cashier’s check,
cancellation of indebtedness, or by any combination of the foregoing, of the
Exercise Price for the number of Warrant Shares specified in the Notice of
Exercise in lawful money of the United States of America. The Company agrees
that such Warrant Shares shall be deemed to be issued to the Holder as the
record holder of such Warrant Shares as of the close of business on the date
on
which this Warrant shall have been surrendered and payment made for the Warrant
Shares as aforesaid. A stock certificate or certificates for the Warrant Shares
specified in the Exercise Form shall be delivered to the Holder as promptly
as
practicable thereafter. If this Warrant shall have been exercised only in part,
the Company shall, at the time of delivery of the stock certificate or
certificates, deliver to the Holder a new Warrant evidencing the rights to
purchase the remaining Warrant Shares, which new Warrant shall in all other
respects be identical with this Warrant. No adjustments shall be made on Warrant
Shares issuable on the exercise of this Warrant for any dividends or
distributions paid or payable to holders of record of Common Stock prior to
the
date as of which the Holder shall be deemed to be the record holder of such
Warrant Shares.
(b) Cashless
Exercise.
In lieu
of exercising this Warrant pursuant to Section 4(a),
this
Warrant may be exercised by the Holder by the surrender of this Warrant to
the
Company, with a duly executed Notice of Exercise marked to reflect a
“Cashless
Exercise”
and
specifying the number of shares of Common Stock to be purchased, during normal
business hours on any Business Day (as defined below) during the Exercise
Period. The Company agrees that such shares of Common Stock, as applicable,
shall be deemed to be issued to the Holder as the record holder of such shares
of Common Stock, as applicable, as of the close of business on the date on
which
this Warrant shall have been surrendered as aforesaid. Upon such exercise,
the
Holder shall be entitled to receive shares equal to the value of this Warrant
(or the portion thereof being canceled) by surrender of this Warrant to the
Company together with notice of such election in which event the Company shall
issue to Holder a number of shares of Common Stock, as applicable, computed
as
of the date of surrender of this Warrant to the Company using the following
formula:
-2-
X
=
Y
(A-B)
A
|
Where
|
X
=
|
the
number of shares of Common Stock, as applicable, to be issued to
Holder
under this Section
4(b);
|
|
Y
=
|
the
number of shares of Common Stock, as applicable, otherwise purchasable
under this Warrant (as adjusted to the date of such
calculation);
|
|
A
=
|
the
fair market value of one share of the Common Stock, as applicable,
at the
date of such calculation;
|
|
B
=
|
the
Exercise Price (as adjusted to the date of such
calculation).
|
(c) Fair
Market Value.
For
purposes of the above calculation, fair market value of one share of Common
Stock, as applicable, shall be determined by the Company’s Board of Directors in
good faith; provided,
however, that where there exists a public market for the Company’s Common Stock
at the time of such exercise, the fair market value per share of Common Stock
shall be the average of the closing bid and asked prices of the Common Stock
quoted in the Over-The-Counter Market Summary or the last reported sale price
of
the Common Stock or the closing price quoted on the Nasdaq National Market
or
any exchange on which the Common Stock is listed, whichever is applicable,
as
published in the Western Edition of The Wall Street Journal for the five (5)
trading days prior to the date of determination of fair market value (which
date
shall be the date of receipt of the notice of exercise from the Holder).
(d) This
Warrant shall be deemed to have been exercised immediately prior to the close
of
business on the date of its surrender for exercise as provided above, and the
person entitled to receive the shares of Common Stock issuable upon such
exercise shall be treated for all purposes as the holder of record of such
shares as of the close of business on such date. As promptly as practicable
on
or after such date, the Company at its expense shall issue and deliver to the
person or persons entitled to receive the same a certificate or certificates
for
the number of shares issuable upon such exercise. In the event that this Warrant
is exercised in part, the Company at its expense will execute and deliver a
new
Warrant of like tenor exercisable for the number of shares for which this
Warrant may then be exercised.
5. No
Fractional Shares or Scrip.
No
fractional shares or scrip representing fractional shares shall be issued upon
the exercise of this Warrant. In lieu of any fractional share to which the
Holder would otherwise be entitled, the Company shall make a cash payment equal
to the Exercise Price multiplied by such fraction.
6. Replacement
of Warrant.
On
receipt of evidence reasonably satisfactory to the Company of the loss, theft,
destruction or mutilation of this Warrant and, in the case of loss, theft or
destruction, on delivery of an indemnity agreement reasonably satisfactory
in
form and substance to the Company or, in the case of mutilation, on surrender
and cancellation of this Warrant, the Company at its expense shall execute
and
deliver, in lieu of this Warrant, a new warrant of like tenor and
amount.
7. Rights
of Stockholders.
Subject
to Sections
10
and
12
of this
Warrant, the Holder shall not be entitled to vote or receive dividends or be
deemed the holder of Common Stock for any purpose, and nothing contained herein
shall be construed to confer upon the Holder, as such, any of the rights of
a
stockholder of the Company or any right to vote for the election of directors
or
upon any matter submitted to stockholders at any meeting thereof, or to give
or
withhold consent to any corporate action (whether upon any recapitalization,
issuance of stock, reclassification of stock, change of par value, or change
of
stock to no par value, consolidation, merger, conveyance or otherwise) or to
receive notice of meetings, or to receive dividends or subscription rights
or
otherwise until the Warrant shall have been exercised as provided
herein.
-3-
8. Transfer
of Warrant.
(a) Warrant
Register.
The
Company will maintain a register (the “Warrant
Register”)
containing the names and addresses of the Holder or Holders. Any Holder of
this
Warrant or any portion thereof may change such ▇▇▇▇▇▇’s address as shown on the
Warrant Register by written notice to the Company requesting such change. Any
notice or written communication required or permitted to be given to the Holder
may be delivered or given by mail to such Holder as shown on the Warrant
Register and at the address shown on the Warrant Register. Until this Warrant
is
transferred on the Warrant Register of the Company, the Company may treat the
Holder as shown on the Warrant Register as the absolute owner of this Warrant
for all purposes, notwithstanding any notice to the contrary.
(b) Warrant
Agent.
The
Company may, by written notice to the Holder, appoint an agent for the purpose
of maintaining the Warrant Register referred to in Section
8(a)
above,
issuing the Warrant Shares or other securities then issuable upon the exercise
of this Warrant, exchanging this Warrant, replacing this Warrant or any or
all
of the foregoing. Thereafter, any such registration, issuance, exchange or
replacement, as the case may be, shall be made at the office of such
agent.
(c) Transferability
and Nonnegotiability of Warrant.
This
Warrant may not be transferred or assigned in whole or in part without
compliance with all applicable federal and state securities laws by the
transferor and the transferee (including the delivery of investment
representation letters, legal opinions and market standoff agreements reasonably
satisfactory to the Company, if such are requested by the Company).
Notwithstanding the foregoing, no investment representation letter or opinion
of
counsel shall be required for any transfer of this Warrant (or any portion
thereof) or any shares of Common Stock issued upon exercise hereof in compliance
with Rule 144 of the Securities Act of 1933, as amended (the “Act”);
provided
that in
each case the transferee agrees in writing to be subject to the terms of this
Warrant (including, without limitation, this Section
8(c)).
Subject to the provisions of this Warrant with respect to compliance with the
Act, title to this Warrant may be transferred by endorsement (by the Holder
executing the Assignment Form annexed hereto) and delivery in the same manner
as
a negotiable instrument transferable by endorsement and delivery.
(d) Exchange
of Warrant Upon a Transfer.
On
surrender of this Warrant for exchange, properly endorsed on the Assignment
Form
and subject to the provisions of this Warrant with respect to compliance with
the Act and with the limitations on assignments and transfers and contained
in
this Section
8,
the
Company at its expense shall issue to or on the order of the Holder a new
warrant or warrants of like tenor, in the name of the Holder or as the Holder
(on payment by the Holder of any applicable transfer taxes) may direct, for
the
number of shares issuable upon exercise hereof.
-4-
(e) Compliance
with Securities Laws.
(i) The
Holder of this Warrant, by acceptance hereof, acknowledges that the Holder
is an
“accredited investor” as that term is defined in Rule 501(a) of Regulation D
promulgated under the Act, and this Warrant and the Warrant Shares to be issued
upon exercise hereof are being acquired solely for the Holder’s own account and
not as a nominee for any other party, and for investment, and that the Holder
will not offer, sell or otherwise dispose of this Warrant or any Warrant Shares
to be issued upon exercise hereof except under circumstances that will not
result in a violation of the Act or any applicable state securities laws. Upon
exercise of this Warrant, the Holder shall, if requested by the Company, confirm
in writing, in a form satisfactory to the Company, that the Warrant Shares
so
purchased are being acquired solely for the Holder’s own account and not as a
nominee for any other party, for investment, and not with a view toward
distribution or resale.
(ii) This
Warrant and all Warrant Shares issued upon exercise hereof shall be stamped
or
imprinted with a legend in substantially the following form (in addition to
any
legend required by state securities laws):
THE
SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT
OF 1933, AS AMENDED. SUCH SECURITIES AND ANY SECURITIES OR SHARES ISSUED
HEREUNDER MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION
OR
AN EXEMPTION THEREFROM UNDER SAID ACT. COPIES OF THE AGREEMENT COVERING THE
PURCHASE OF THESE SECURITIES AND RESTRICTING THEIR TRANSFER OR SALE MAY BE
OBTAINED AT NO COST BY WRITTEN REQUEST MADE BY THE HOLDER OF RECORD HEREOF
TO
THE SECRETARY OF THE COMPANY AT ITS PRINCIPAL EXECUTIVE OFFICES.
(iii) The
Company agrees to remove promptly, upon the request of the holder of this
Warrant and Warrant Shares issuable upon exercise of the Warrant, the legend
set
forth in Section
8(e)(ii)
above
from the documents/certificates for such securities upon full compliance with
this Agreement and Rule 144.
9. Reservation
of Stock.
The
Company covenants to take all such necessary action to authorize and reserve
a
sufficient number of shares of Common Stock to provide for the issuance of
Common Stock upon exercise of this Warrant. The Company further covenants that
all shares that may be issued upon the exercise of rights represented by this
Warrant and payment of the Exercise Price, all as set forth herein, will be
free
from all taxes, liens and charges in respect of the issue thereof (other than
taxes in respect of any transfer occurring contemporaneously or otherwise
specified herein).
-5-
10. Notices.
(a) Whenever
the Exercise Price or number of shares purchasable hereunder shall be adjusted
pursuant to Section
12
hereof,
the Company shall issue a certificate signed by an executive officer setting
forth, in reasonable detail, the event requiring the adjustment, the amount
of
the adjustment, the method by which such adjustment was calculated, and the
Exercise Price and number of shares purchasable hereunder after giving effect
to
such adjustment, and shall cause a copy of such certificate to be mailed (by
first-class mail, postage prepaid) to the Holder of this Warrant.
(b) In
case:
(i) the
Company shall take a record of the holders of its Common Stock (or other stock
or securities at the time receivable upon the exercise of this Warrant) for
the
purpose of entitling them to receive any dividend or other distribution, or
any
right to subscribe for or purchase any shares of stock of any class or any
other
securities, or to receive any other right;
(ii) of
any
capital reorganization of the Company, any reclassification of the capital
stock
of the Company, any consolidation or merger of the Company with or into another
corporation, or any conveyance of all or substantially all of the assets of
the
Company to another corporation;
(iii) of
any
voluntary dissolution, liquidation or winding-up of the Company; or
(iv) of
any
redemption or conversion of all outstanding Common Stock;
then,
and
in each such case, the Company will mail or cause to be mailed to the Holder
or
Holders a notice specifying, as the case may be, (A) the date on which a record
is to be taken for the purpose of such dividend, distribution or right, and
stating the amount and character of such dividend, distribution or right, or
(B)
the date on which such reorganization, reclassification, consolidation, merger,
conveyance, dissolution, liquidation, winding-up, redemption or conversion
is to
take place, and the time, if any is to be fixed, as of which the holders of
record of Common Stock shall be entitled to exchange their shares of Common
Stock for securities or other property deliverable upon such reorganization,
reclassification, consolidation, merger, conveyance, dissolution, liquidation
or
winding-up. Such notice shall be mailed at least ten (10) days prior to the
date
therein specified.
(c) All
such
notices, advices and communications shall be delivered tot he address of the
Holder on record with the Company and shall be deemed to have been received
(i)
in the case of personal delivery, on the date of such delivery and (ii) in
the
case of mailing, on the third (3rd) business day following the date of such
mailing.
11. Amendments.
Subject
to Section
13(d)
below,
this Warrant and any term hereof may be changed, waived, discharged or
terminated only by an instrument in writing signed by the party against which
enforcement of such change, waiver, discharge or termination is sought.
-6-
12. Adjustments.
The
Exercise Price and the number of shares purchasable hereunder are subject to
adjustment from time to time as follows:
(a) Additional
Shares of Common Stock.
In the
event the Company shall at any time after the Closing (as defined in the
Purchase Agreement) issue Additional Shares of Common Stock (defined herein),
without consideration or for a consideration per share less than the applicable
Exercise Price in effect immediately prior to such issue (“Dilutive
Issuance”),
then
the Exercise Price shall be adjusted to a price determined by multiplying the
applicable Exercise Price in effect immediately prior to the Dilutive Issuance
by a fraction:
(i) the
numerator of which shall be (1) the number of shares of Common Stock issued
or
issuable on exercise of all outstanding options, warrants and convertible
securities outstanding immediately prior to the Dilutive Issuance, plus (2)
the
number of shares of Common Stock that the aggregate consideration, if any,
received by the Company in connection with the Dilutive Issuance would purchase
at such Exercise Price, and
(ii) the
denominator of which shall be (1) the number of shares of Common Stock issued
or
issuable on exercise of all outstanding options, warrants and convertible
securities outstanding immediately prior to the Dilutive Issuance, plus (2)
the
number of shares of Common Stock issued or deemed issued in the Dilutive
Issuance;
provided
that
if such
issuance or deemed issuance was without consideration, then the Company shall
be
deemed to have received an aggregate of one tenth of one cent ($.001) of
consideration for all such Additional Shares of Common Stock issued or deemed
to
be issued. For purposes of the foregoing paragraph, “Additional
Shares of Common Stock”
shall
mean any issuances of equity securities (or securities convertible into equity
securities) of the Company, other than the following:
(A) shares
of
Common Stock issued or issuable by reason of a dividend, stock split, split-up
or other distribution of shares of Common Stock as described in Section
12(b), (c) or (d)
hereof;
(B) up
to
Thirteen Million Six Hundred Eighty-Nine Thousand Seven Hundred Seventeen
(13,689,717) shares of Common Stock actually issued upon the exercise of stock
options;
(C) shares
of
Common Stock actually issued upon conversion of convertible securities
outstanding as of the date hereof and as set forth on Schedule 4.2 of the
Purchase Agreement, in each case provided such issuance is pursuant to the
terms
of such option or convertible security;
(D) shares
of
Common Stock issuable upon conversion of the Notes and upon exercise of the
Warrants; or
(E) securities
in connection with a transaction where all of the Holders have indicated in
writing that the transaction should be exempt from the anti-dilution adjustment
provisions hereof.
-7-
(b) Reclassification,
etc.
If the
Company, at any time while this Warrant or any portion thereof remains
outstanding and unexpired, by reclassification of securities or otherwise,
shall
change any of the securities as to which purchase rights under this Warrant
exist into the same or a different number of securities of any other class
or
classes, this Warrant shall thereafter represent the right to acquire such
number and kind of securities as would have been issuable as the result of
such
change with respect to the securities that were subject to the purchase rights
under this Warrant immediately prior to such reclassification or other change
and the Exercise Price therefor shall be appropriately adjusted, all subject
to
further adjustment as provided in this Section
12.
(c) Split,
Subdivision or Combination of Shares.
If the
Company, at any time while this Warrant or any portion thereof remains
outstanding and unexpired, shall split, subdivide or combine the outstanding
shares of Common Stock into a different number of shares of Common Stock, as
applicable, then (i) in the case of a split or subdivision, the Exercise Price
for such securities shall be proportionately decreased and the Warrant Shares
issuable upon exercise of this Warrant shall be proportionately increased,
and
(ii) in the case of a combination, the Exercise Price for such Warrant Shares
shall be proportionately increased and the securities issuable upon exercise
of
this Warrant shall be proportionately decreased.
(d) Adjustments
for Dividends in Stock or Other Securities or Property.
If,
while this Warrant or any portion hereof remains outstanding and unexpired,
the
holders of Common Stock, as applicable, shall have received, or, on or after
the
record date fixed for the determination of eligible stockholders, shall have
become entitled to receive, without payment therefor, additional shares of
Common Stock, as applicable, by way of dividend, then and in each case, this
Warrant shall represent the right to acquire, in addition to the number of
shares of the security receivable upon exercise of this Warrant, and without
payment of any additional consideration therefor, the amount of such additional
shares of Common Stock, as applicable, that such holder would hold on the date
of such exercise had it been the holder of record of that number of shares
of
Common Stock, as applicable, receivable upon exercise of this Warrant on the
date hereof and had thereafter, during the period from the date hereof to and
including the date of such exercise, retained such shares and/or all other
additional stock available by it as aforesaid during such period, giving effect
to all adjustments called for during such period by the provisions of this
Section
12.
(e) Registration
Statement.
Pursuant to Section
2.4(b)
of the
Investor Rights Agreement, in the event that the registration statement required
to be filed by the Company thereunder is not declared effective within one
hundred eighty (180) days following the Closing, the Exercise Price shall be
reduced by $0.025 per share for each thirty (30) day period that the
effectiveness of the registration statement is delayed, but in no event shall
this provision cause the Exercise Price to be reduced below $0.40 per
share.
(f) No
Impairment.
The
Company will not, by any voluntary action, avoid or seek to avoid the observance
or performance of any of the terms to be observed or performed hereunder by
the
Company, but will at all times in good faith assist in the carrying out of
all
the provisions of this Section
12
and in
the taking of all such action as may be necessary or appropriate in order to
protect the rights of the Holder of this Warrant against
impairment.
-8-
13. Miscellaneous.
(a) This
Warrant shall be governed by the laws of the State of New York as applied to
agreements entered into in the State of New York by and among residents of
the
State of New York.
(b) Choice
of Venue; Waiver of Right to Jury Trial.
(i) THIS
WARRANT 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 WARRANT 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 WARRANT, 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 WARRANT
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 HEREIN, 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 WARRANT 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.
(ii) 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 WARRANT OR ANY OTHER DOCUMENT BROUGHT IN
THE
COURTS REFERRED TO IN CLAUSE (i) 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.
-9-
(iii) EACH
OF
THE PARTIES TO THIS WARRANT HEREBY IRREVOCABLY WAIVES ALL RIGHT TO A TRIAL
BY
JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO
THIS WARRANT, THE OTHER DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR
THEREBY.
(c) In
the
event of a dispute with regard to the interpretation of this Warrant, the
prevailing party shall be entitled to collect the cost of attorney’s fees,
litigation expenses or such other expenses as may be incurred in the enforcement
of the prevailing party’s rights hereunder.
(d) This
Warrant shall be exercisable as provided for herein, except that if the
expiration date of this Warrant shall fall on a day other than a Business Day,
the expiration date for this Warrant shall be extended to 5:00 p.m. Eastern
standard time on the next following Business Day. For purposes of this Warrant,
“Business
Day”
shall
mean any day except a Saturday, Sunday or other day on which commercial banks
in
New York, New York or Las Vegas, Nevada are authorized by law to
close.
(e) This
Warrant shall only be amended with the prior written consent of the Company
and
the Holder hereof.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
-10-
IN
WITNESS WHEREOF, the undersigned has caused this Warrant to be executed by
its
officer thereunto duly authorized.
| COMPANY: | ||
| WINWIN GAMING, INC. | ||
| |
|
|
| By: | ||
|
Name: |
||
| Title: | ||
-11-
EXECUTIVE
COPY
NOTICE
OF EXERCISE
To: WINWIN
GAMING, INC.
(1) The
undersigned hereby:
| __________ |
elects
to purchase __________ shares of Common Stock of WINWIN GAMING, INC.
pursuant to the terms of the attached
Warrant.
|
(2) The
undersigned hereby:
| __________ |
elects
to purchase such securities by tender herewith of payment of the
purchase
for such shares in full; or
|
| __________ |
elects
to exercise the Cashless Exercise features of the attached Warrant
with
respect to such securities pursuant to the terms of such
Warrant.
|
(3) In
exercising this Warrant, the undersigned ▇▇▇▇▇▇ confirms and acknowledges that
the securities being issued hereby are being acquired solely for the account
of
the undersigned and not as a nominee for any other party, or for investment,
and
that the undersigned will not offer, sell or otherwise dispose of any such
securities, except under circumstances that will not result in a violation
of
the Securities Act of 1933, as amended, or any applicable state securities
laws.
(4) Please
issue a certificate or certificates representing said securities in the name
of
the undersigned:
|
(Name)
|
(5) Please
issue a new Warrant for the unexercised portion of the attached Warrant in
the
name of the undersigned:
|
(Name)
|
(6) Capitalized
terms used herein shall have the meanings ascribed to them in the
Note.
|
(Date)
|
(Signature of Registered Holder) | |
| (Name of Registered Holder) |
EXECUTIVE
COPY
ASSIGNMENT
FORM
(To
be
signed only upon assignment of Warrants)
FOR
VALUE
RECEIVED, the undersigned hereby sells, assigns and transfers unto the assignee
named below all of the rights of the undersigned represented by the attached
Warrant with respect to the number of Warrant Shares covered by the Warrant
set
forth below:
(Name
and
Address of Assignee Must Be Printed or Typewritten)
|
Name
of Assignee
|
Social
Security No.
or
Tax I.D. No.
|
Address
|
|
No.
of Shares
|
||
and
does
hereby irrevocably constitute and appoint
Attorney
to transfer said Warrants on the books of the Company, with full power of
substitution in the premises.
Dated:
________
________________________________________________
Signature
of Registered Holder
Note: The
signature on this assignment must correspond with the names as it appears upon
the face of the Warrant to Purchase Common Stock in every particular, without
alteration or enlargement or any change whatever.