EXHIBIT 10.1
SECURITIES PURCHASE AGREEMENT
This Securities Purchase Agreement (this "AGREEMENT") dated October 19,
2010, by and between Win Gaming Media, Inc., a Nevada corporation (the
"Company"), and _____________ (the "Purchaser").
The Company and the Purchaser agree as follows:
ARTICLE 1
PURCHASE AND SALE
1.1 CLOSING.
(a) SECURITIES PURCHASED. At the closings of the transaction
contemplated hereby (the "CLOSING"), the Company will sell and the
Purchaser will purchase the following securities of the Company for an
aggregate purchase price of up to 300,000 US dollars (the "PURCHASE
PRICE"), as follows:
(i) ___________ shares of Common Stock $0.001 par value at a
price of $0.08 per share, or an aggregate purchase price of ______ US
dollars (the "SHARES"); and
(ii) Five-year warrant to purchase up to an additional __________
shares of Common Stock with an exercise price of $0.08 per share,
which will be issued to Purchaser at the Closing and will be
exercisable only after six months from Closing (the "WARRANT"). No
separate consideration shall be paid for the Warrant. The Warrant
shall be in the form previously provided to the Purchaser. (the shares
issuable upon exercise of the Warrant are sometimes referred to
hereinafter as the "WARRANT SHARES" and the Shares and Warrant Shares
are sometimes referred to hereinafter as the "SECURITIES".)
(b) CLOSING DELIVERIES. (i) The Closing shall take place on October
20, 2010. At the Closing or earlier, the Purchaser shall deliver to the
Company immediately available funds equal to the Purchase Price, and the
Company shall deliver to the Purchaser, no later than 45 days following the
closing, the Shares and the Warrant, effected by delivering to the
Purchaser a copy of the irrevocable instructions to the Company's transfer
agent instructing the transfer agent to deliver the Shares via overnight
courier share certificates or via the Depository Trust Company Deposit
Withdrawal Agent Commission System, and delivery of the Warrant (which may
initially be an electronic copy, to be followed immediately by the original
executed Warrant), in each case in the name of the Purchaser; and (ii) The
obligations of the Company and the Purchaser to effect the Closing are
unconditional.
THE PURCHASER UNDERSTANDS THAT AN INVESTMENT IN THE SECURITIES INVOLVES A
HIGH DEGREE OF RISK, AND THAT THE SECURITIES ARE SUBJECT TO RESTRICTIONS ON
TRANSFER AND RESALE. THERE CAN BE NO ASSURANCES THAT THE PURCHASER WILL
RECOVER ALL OR ANY PORTION OF THIS INVESTMENT.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES
2.1 REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
(a) ORGANIZATION AND QUALIFICATION. The Company is a corporation duly
incorporated, validly existing and in good standing under the laws of the
State of Nevada, with the requisite power and authority to own and use its
properties and assets and to carry on its business as currently conducted.
(b) AUTHORIZATION; ENFORCEMENT. The Company has the requisite
corporate power and authority to enter into and to consummate the
transactions contemplated hereby. The execution and delivery of this
Agreement by the Company and the consummation by it of the transactions
contemplated hereby, including the issuance of the Securities, has been
duly authorized by all necessary action on the part of the Company. This
Agreement is the valid and binding obligation of the Company enforceable
against the Company in accordance with its terms.
(c) ISSUANCE OF THE SECURITIES; REGISTRATION. The Securities are duly
authorized and, when issued and paid for in accordance with this Agreement,
will be duly and validly issued, fully paid and nonassessable. The Warrant
Shares, when issued in accordance with the terms of the Warrant, will be
validly issued, fully paid and nonassessable.
(d) SEC REPORTS. The Company has timely filed all reports, schedules,
forms, statements and other documents required to be filed by the Company
under the Securities Exchange Act of 1934 (the "EXCHANGE ACT") for at least
the one (1) year preceding the date hereof (or such shorter period as the
Company was required to do so) (the "SEC REPORTS"). As of their respective
dates, the SEC Reports complied in all material respects with the
requirements of the Exchange Act, as applicable, and none of the SEC
Reports, when filed, contained any untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary
in order to make the statements therein, in light of the circumstances
under which they were made, not misleading.
(e) MATERIAL ADVERSE CHANGE. Since the date of the latest SEC Report,
there has been no material adverse change in the business or financial
condition of the Company.
2.2 REPRESENTATIONS AND WARRANTIES OF THE PURCHASER 2.3 . The Purchaser
hereby represents and warrants as follows:
(a) ORGANIZATION; AUTHORITY. The Purchaser is an entity duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its organization with full right, corporate or partnership
power and authority to enter into and to consummate the transactions
contemplated by this Agreement and otherwise to carry out its obligations
hereunder and thereunder. The execution and delivery of this Agreement and
performance by the Purchaser of the transactions contemplated by this
Agreement have been duly authorized by all necessary corporate or similar
action on the part of the Purchaser. This Agreement has been duly executed
by the Purchaser, and is the valid and legally binding obligation of the
Purchaser, enforceable against it in accordance with its terms. No consent,
approval, order or authorization of, or registration, qualification,
designation, declaration or filing with, any governmental authority,
including the U.S. Securities and Exchange Commission, is required on the
part of the Purchaser in connection with the execution and delivery of this
Agreement, or the offer, sale, and delivery of the Securities as
contemplated by this Agreement.
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(b) OWN ACCOUNT; INVESTMENT INTENT. The Purchaser is acquiring the
Securities as principal for its own account for investment purposes only
and not and will not acquire the Shares, the Warrant or the Warrant Shares
with a view to or for distributing or reselling them in violation of the
Securities Act of 1933, as amended (the "SECURITIES ACT") or any applicable
state securities law, has no present intention of distributing any of them
in violation of the Securities Act or any applicable state securities law
and has no direct or indirect arrangement or understandings with any other
persons to distribute or regarding their distribution of such Securities.
The Purchaser understands that the Securities included therein are
"restricted securities" and have not been registered under the Securities
Act or any applicable state securities laws. The Purchaser is acquiring the
Securities and each part thereof hereunder in the ordinary course of its
business.
(c) REGULATION S. The Purchaser makes the following representations
related to Regulation S under the Securities Act: (i) it is not a "U.S.
Person" as that term is defined in Rule 902 of Regulation S under the
Securities Act; and received all communications relating to the issuance of
the Shares, and executed all documents relating thereto, outside the United
States; and (ii) it agrees to resell the Shares, the Warrant and the
Warrant Shares only in accordance with the provisions of Regulation S, or
pursuant to another available exemption from the registration requirements
of the Securities Act, and further agrees not to engage in hedging
transactions with regard to such securities unless in compliance with the
Securities Act.
(d) EXPERIENCE OF SUCH PURCHASER. The Purchaser, either alone or
together with its representatives, has such knowledge, sophistication and
experience in business and financial matters so as to be capable of
evaluating the merits and risks of the prospective investment in the
Securities, and has so evaluated the merits and risks of such investment.
The Purchaser is able to bear the economic risk of an investment in the
Securities (and each part thereof) and, at the present time, is able to
afford a complete loss of such investment.
(e) OPPORTUNITY TO CONDUCT DUE DILIGENCE. The Purchaser was granted
the opportunity to conduct due diligence prior to entering into the
transactions contemplated by this Agreement. No offering memorandum or
similar disclosure document has been prepared in connection with the sale
of the Securities. The Purchaser has read this Agreement and is familiar
with the terms of the Securities. In making the decision to purchase the
Securities, the Purchaser and the Purchaser's advisors have, prior to any
sale to the Purchaser, been given access and the opportunity to examine all
books and records of the Company, all contracts and documents relating to
the Company, and all filings made by the Company with the U.S. Securities
and Exchange Commission, and an opportunity to ask questions of, and to
receive answers from, the Company and to obtain any additional information
necessary to verify the accuracy of the information provided to the
Purchaser. The Purchaser and the Purchaser's advisors have been furnished
with all materials relating to the business, finances and operations of the
Company and materials relating to the offer and sale of the Securities that
have been requested. The only representations and warranties being given to
the Purchaser by the Company are as contained in this Agreement.
ARTICLE 3
OTHER AGREEMENTS OF THE PARTIES
3.1 PUBLICITY. The parties agree that this Agreement and the transactions
contemplated hereby will remain confidential until the Company files a Form 8-K
or any other report with the Securities and Exchange Commission disclosing this
Agreement. The Purchaser agrees not to effect any purchase or sale of the
securities of the Company until after such filing is made.
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3.2 TRANSFER RESTRICTIONS.
(a) The Purchaser hereby acknowledges that the Securities and any part
hereof may only be disposed of in compliance with state and federal
securities laws. In connection with any transfer of Shares, Warrant or
Warrant Shares other than pursuant to an effective registration statement
or Rule 144, to the Company or to an Affiliate of a Purchaser or in
connection with a pledge, the Company may require the transferor thereof to
provide to the Company an opinion of counsel selected by the transferor and
reasonably acceptable to the Company, the form and substance of such
opinion shall be reasonably satisfactory to the Company, to the effect that
such transfer does not require registration of such transferred Shares,
Warrant or Warrant Shares under the Securities Act. Unless the transfer of
the Warrant has been registered, no Warrant may be transferred to any
person that is not an "accredited investor."
(b) The Purchaser agrees to the imprinting, so long as is required, of
a legend on any of the Shares, Warrant and Warrant Shares in the following
form:
[THESE SHARES] [THIS WARRANT AND THE SHARES ISSUABLE UPON
EXERCISE OF THIS WARRANT] HAVE NOT BEEN REGISTERED WITH THE
SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION
OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN
A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE
SECURITIES LAWS AS EVIDENCED BY A LEGAL OPINION OF COUNSEL
SATISFACTORY TO THE COMPANY TO SUCH EFFECT, THE SUBSTANCE OF
WHICH SHALL BE REASONABLY ACCEPTABLE TO THE COMPANY.
ARTICLE 4
MISCELLANEOUS
4.1 FEES AND EXPENSES. Each party shall pay the fees and expenses of its
advisers, counsel, accountants and other experts, if any, and all other expenses
incurred by such party in connection with this Agreement. Purchaser acknowledges
that the Company may pay a transaction fee to finders.
4.2 NOTICES. Any and all notices or other communications or deliveries
required or permitted to be provided hereunder shall be in writing and shall be
deemed given and effective on the earliest of: (a) the date of transmission, if
such notice or communication is delivered via facsimile at the facsimile number
or by email to the email address set forth on the signature page or (b) upon
actual receipt by the party to whom such notice is required to be given.
4.3 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and inure
to the benefit of the parties and their successors. This Agreement is not
assignable by either party.
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4.4 GOVERNING LAW. All questions concerning the construction, validity,
enforcement and interpretation of this Agreement shall be governed by and
construed and enforced in accordance with the internal laws of the State of New
York. Each party agrees that all legal proceedings concerning the
interpretations, enforcement and defense of the transactions contemplated by
this Agreement (whether brought against a party hereto or its respective
affiliates, directors, officers, shareholders, employees or agents) shall be
commenced exclusively in the state and federal courts sitting in the City of New
York. Each party hereby irrevocably submits to the exclusive jurisdiction of the
state and federal courts sitting in the City of New York, borough of Manhattan
for the adjudication of any dispute hereunder or in connection herewith or with
any transaction contemplated hereby or discussed herein (including with respect
to the enforcement of this Agreement).
4.5 SURVIVAL OF REPRESENTATIONS. The Purchaser agrees that all of the
warranties, representations acknowledgments, confirmations, covenants and
promises made in this Agreement shall survive its execution and delivery.
4.6 CHANGES IN REPRESENTATIONS. The Purchaser agrees to notify the Company
immediately of any change in the representations, warranties or information
pertaining to the Purchaser contained herein.
[SIGNATURE PAGE IMMEDIATELY FOLLOWS.]
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IN WITNESS WHEREOF, the parties hereto have caused this Securities Purchase
Agreement to be duly executed by their respective authorized signatories as of
the date first indicated above.
WIN GAMING MEDIA, INC.
By: /s/ Shimon Citron By: /s/ Dimitrios Bouras
- ------------------------------------- -----------------------------------
Name: Shimon Citron Name: Dimitrios Bouras
Title: CEO Title:
Office Address: 103 Foulk Rd., Address:
Wilmington, DE 19803 Fax No:
Fax No. 1-302-652-8667
By: /s/ Pini Gershon
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Name: Pini Gershon
Title:
Address:
Fax No:
Azriel Zolti Ltd.
By: /s/ Azriel Zolti
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Name: Azriel Zolti
Title:
Address:
Fax No:
By: /s/ Udi Barzily
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Name: Udi Barzily
Title:
Address:
Fax No:
By: /s/ Baruch Toledano
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Name: Baruch Toledano
Title:
Address:
Fax No:
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