EXHIBIT 10.30
STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement (the "Agreement") is made as of April
24, 1995, between NTN Communications, Inc., a Delaware corporation, (the
- --
"Corporation"), and an entity advised by Dimensional Fund Advisors Inc. whose
name is set forth at the foot of this Agreement (the "Purchaser").
The Corporation and the purchaser hereby agree as follows:
SECTION 1
Authorization, Purchase and Sale of the Stock
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1.1 Authorization of the Stock. The Corporation has authorized
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issuance and sale of 308,000 shares of its common stock (the "Stock") to
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Purchaser as herein provided.
1.2 Sale and Purchase of the Stock. At the Closing, subject to the
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terms and conditions hereof and in reliance upon the representations, warranties
and agreements contained herein, the Purchaser will purchase the Stock from the
Corporation at a purchase price of $4,3563 per share, $1,341,740.40 in total.
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SECTION 2
Closing, Payment and Delivery
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2.1 Closing Date and Place of Closing. The closing shall be held as
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soon as practicable, and in no event more than 10 business days after execution
of this Agreement, on such date as the Corporation and the Purchaser may agree
to (the "Closing Date") and shall be held at the offices of Dimensional Fund
Advisors Inc., 1299 Ocean Avenue, Santa Monica, CA 90401.
2.2 Payment and Delivery. At the Closing, the Purchaser will pay or
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cause to be paid to the Corporation by wire funds transfer the entire purchase
price. The Corporation will deliver in advance of the Closing to an
institutional custodian designated by the Purchaser a certificate or
certificates, registered in such name or names as Purchaser may designate,
representing all of the Stock, with instructions that such certificates are to
held for the account of Purchaser upon payment of the purchase price.
2.3 Covenant of Best Efforts and Good Faith. The Corporation and the
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Purchaser agree to use their respective best
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STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement (the "Agreement") is made as of April
24, 1995, between NTN Communications, Inc., a Delaware corporation, (the
- --
"Corporation") and an entity advised by Dimensional Fund Advisors Inc. whose
name is set forth as the foot of this Agreement (the "Purchaser").
The Corporation and the Purchaser hereby agree as follows:
SECTION 1
Authorization, Purchase and Sale of the Stock
---------------------------------------------
1.1 Authorization of the Stock. The Corporation has authorized
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issuance and sale of 161,500 shares of its common stock (the "Stock") to
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purchaser as herein provided.
1.2 Sale and Purchase of the Stock. At the Closing, subject to the
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terms and conditions hereof and in reliance upon the representations, warranties
and agreements contained herein, the Purchaser will purchase the Stock from the
Corporation at a purchase of $ 4.3563 per share, $ 703,542.45 in total.
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SECTION 2
Closing, Payment and Delivery
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2.1 Closing Date and Place of Closing. The closing shall be held as
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soon as practicable, and in no event more than 10 business days after execution
of this Agreement, on such date as the Corporation and the Purchaser may agree
to (the "Closing Date") and shall be held at the offices of Dimensional fund
Advisors Inc., 1299 Ocean Avenue, Santa Monica, CA 90401.
2.2 Payment and Delivery. At the Closing, the Purchaser will pay or
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cause to be paid to the Corporation by wire funds transfer the entire purchase
price. The Corporation will deliver in advance of the Closing to an
institutional custodian designated by the Purchaser a certificate or
certificates, registered in such name or names as Purchaser may designate,
representing all of the Stock, with instructions that such certificates are to
be held for the account of Purchaser upon payment of the purchase price.
2.3 Covenant of Best Efforts and Good Faith. The Corporation and the
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Purchaser agree to use their respective best
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STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement (the "Agreement") is made as of April
24, 1995, between NTN Communications, Inc., a Delaware corporation, (the
- --
"Corporation") and an entity advised by Dimensional Fund Advisors Inc. whose
name is set forth as the foot of this Agreement (the "Purchaser").
The Corporation and the Purchaser hereby agree as follows:
SECTION 1
Authorization, Purchase and Sale of the Stock
---------------------------------------------
1.1 Authorization of the Stock. The Corporation has authorized
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issuance and sale of 124,200 shares of its common stock (the "Stock") to
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purchaser as herein provided.
1.2 Sale and Purchase of the Stock. At the Closing, subject to the
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terms and conditions hereof and in reliance upon the representations, warranties
and agreements contained herein, the Purchaser will purchase the Stock from the
Corporation at a purchase price of $ 4.3563 per share, $ 541,052.46 in total.
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SECTION 2
Closing, Payment and Delivery
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2.1 Closing Date and Place of Closing. The closing shall be held as
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soon as practicable, and in no event more than 10 business days after execution
of this Agreement, on such date as the Corporation and the Purchaser may agree
to (the "Closing Date") and shall be held at the offices of Dimensional fund
Advisors Inc., 1299 Ocean Avenue, Santa Monica, CA 90401.
2.2 Payment and Delivery. At the Closing, the Purchaser will pay or
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cause to be paid to the Corporation by wire funds transfer the entire purchase
price. The Corporation will deliver in advance of the Closing to an
institutional custodian designated by the Purchaser a certificate or
certificates, registered in such name or names as Purchaser may designate,
representing all of the Stock, with instructions that such certificates are to
be held for the account of Purchaser upon payment of the purchase price.
2.3 Covenant of Best Efforts and Good Faith. The Corporation and the
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Purchaser agree to use their respective best
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STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement (the "Agreement") is made as of April
24, 1995, between NTN Communications, Inc., a Delaware corporation, (the
- --
"Corporation") and an entity advised by Dimensional Fund Advisors Inc. whose
name is set forth as the foot of this Agreement (the "Purchaser").
The Corporation and the Purchaser hereby agree as follows:
SECTION 1
Authorization, Purchase and Sale of the Stock
---------------------------------------------
1.1 Authorization of the Stock. The Corporation has authorized
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issuance and sale of 6,300 shares of its common stock (the "Stock") to
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purchaser as herein provided.
1.2 Sale and Purchase of the Stock. At the Closing, subject to the
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terms and conditions hereof and in reliance upon the representations, warranties
and agreements contained herein, the Purchaser will purchase the Stock from the
Corporation at a purchase of $ 4.3563 per share, $ 27,444,69 in total.
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SECTION 2
Closing, Payment and Delivery
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2.1 Closing Date and Place of Closing. The closing shall be held as
---------------------------------
soon as practicable, and in no event more than 10 business days after execution
of this Agreement, on such date as the Corporation and the Purchaser may agree
to (the "Closing Date") and shall be held at the offices of Dimensional fund
Advisors Inc., 1299 Ocean Avenue, Santa Monica, CA 90401.
2.2 Payment and Delivery. At the Closing, the Purchaser will pay or
--------------------
cause to be paid to the Corporation by wire funds transfer the entire purchase
price. The Corporation will deliver in advance of the Closing to an
institutional custodian designated by the Purchaser a certificate or
certificates, registered in such name or names as Purchaser may designate,
representing all of the Stock, with instructions that such certificates are to
be held for the account of Purchaser upon payment of the purchase price.
2.3 Covenant of Best Efforts and Good Faith. The Corporation and the
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Purchaser agree to use their respective best
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efforts and to act in good faith to cause to occur all conditions to Closing
which are in their respective control.
SECTION 3
Purchase Price Adjustment
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3.1. Subsequent Sale at Lower Price. If during the twelve month
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period following the Closing Date, the Corporation sells any shares of its
common stock for a selling price lower than the purchase price per share set
forth in Section 1.2 hereof, the purchase price per share of the Stock sold to
Purchaser hereunder shall be adjusted downward to equal such lower selling
price. The Corporation shall give to the Purchaser prompt written notice of any
such sale.
3.2. Adjustment Mechanism. If an adjustment of the purchase price is
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required pursuant to this Section the Corporation shall promptly deliver to
Purchaser such number of additional shares of common stock as will cause (i) the
total number of shares of common stock delivered to Purchaser hereunder,
multiplied by (ii) the adjusted purchase price per share, to equal (iii) the
total purchase price set forth in Section 1.2 hereof; provided however, that the
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Corporation shall effect such adjustment in cash, in whole or in part, to the
extent required by the following subsection.
3.3. Limitation on Number of Shares. Purchaser and other entities
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advised by Dimensional Fund Advisors Inc. shall not be required to accept, by
way of any such adjustment, a number of shares of the Corporation such that the
total number of such shares held by Purchaser and such other entities, which
were held by them on the date of this Agreement or acquired by them pursuant to
this Agreement or agreements of like tenor with such other entities, would
exceed 4.99% of the total outstanding stock of the Corporation. The Corporation
shall effect the adjustment required by this Section by cash refund to the
extent necessary to avoid causing the aforesaid limitation to be exceeded.
3.4. Capital Adjustments. In case of any stock split or reverse stock
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split, stock dividend, reclassification of the common stock, recapitalization,
merger or consolidation, or like capital adjustment affecting the common stock
of the Corporation, the provisions of this Section shall be applied as if such
capital adjustment event had occurred immediately prior to the Closing Date and
the original purchase price had been fairly allocated to the stock resulting
from such capital adjustment; and in other respects the provisions of this
Section shall be applied in a fair, equitable and reasonable manner so as to
give effect, as nearly as may be, to the purposes hereof.
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3.5. Exclusions. Section 3.1 shall not apply to sales of shares by the
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Corporation (i) upon conversion or exercise of any convertible securities,
options or warrants outstanding on the date hereof, (ii) pursuant to the
provisions of any shareholder-approved employee benefit or incentive plan
heretofore or hereafter adopted by the Corporation, or (iii) to an entity which
is a strategic investor in the Corporation or an investor which is in a related
industry, as opposed to a financial investor.
3.6. Definitions. For purposes of Section 3.1 hereof, a sale of
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shares shall mean and include the sale or issuance of rights, options, warrants
or convertible securities under which the Corporation is or may become obligated
to issue shares of common stock, and the "selling price" of the common stock
covered thereby shall be the exercise or conversion price thereof plus the
consideration (if any) received by the Corporation upon such sale or issuance.
If shares are issued for a consideration other than cash, the "selling price"
shall be the fair value of the such consideration as determined in good faith by
the Board of Directors of the Corporation. The term "Stock" as used in this
Agreement shall include shares issued pursuant to this Section.
SECTION 4
Representations and Warranties of the Corporation
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The Corporation hereby represents and warrants to the Purchaser that:
4.1 Corporate Power, Qualification and Standing. The Corporation and
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its subsidiaries are validly existing and in good standing under the laws of
their respective jurisdictions of incorporation and each of them is qualified to
transact business in each jurisdiction in which its ownership of property or
conduct of activities requires such qualification. The Corporation has all
requisite corporate power and authority to enter into this Agreement, to sell
the Stock and to carry out and perform its other obligations under this
Agreement.
4.2 S.E.C. Reports; Financial Statements. The common stock of the
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Corporation is registered under Section 12(b) or (g) of the Securities Exchange
Act of 1934 and the Corporation is in full compliance with its reporting and
filing obligations under said Act. The Corporation has delivered to Purchaser
its Annual Reports to shareholders and its reports on Form 10K for its last
three fiscal years, and all its quarterly reports to shareholders, quarterly
reports on Form 10Q, and each other report, registration statement, definitive
proxy statement or other document filed with the S.E.C. since the beginning of
said three fiscal years (collectively, the "SEC Reports"). The SEC Reports do
not (as of their respective dates) contain any untrue statement of a material
fact or omit to state a material fact required to be stated
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therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading. The audited and
unaudited financial statements of the Corporation included in the SEC Reports
(the "Financial Statements") have been prepared in accordance with generally
accepted accounting principles applied on a consistent basis (except as stated
in such Financial Statements or the notes thereto) and fairly present the
financial position of the Corporation and its consolidated subsidiaries as of
the dates thereof and the results of their operations and changes in financial
position for the periods then ended. Except as publicly disclosed by the
Corporation in the SEC Reports or otherwise, since the end of the most recent of
said fiscal years there has been no material adverse change in the business,
financial condition, or results of operations of the Corporation and its
subsidiaries taken together, and there is no existing condition, event or series
of events which can reasonably be expected to have a material adverse effect on
the business, financial condition or results of operations of the Corporation
and its subsidiaries taken together, or its ability to perform its obligations
under this Agreement.
4.3 Authorization; No Conflict. Execution and delivery of this
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Agreement and issuance and sale of the Stock have been duly authorized by all
necessary corporate action of the Corporation, and the Stock when issued will be
validly issued, fully paid and non-assessable. Performance by the Corporation of
its obligations under this Agreement will not conflict with or violate (i) the
charter documents or bylaws of the Corporation, (ii) any indenture, loan
agreement, lease, mortgage or other material agreement binding on the
Corporation, (iii) any order of a court or administrative agency binding on the
Corporation, or (iv) any applicable law or governmental regulation; and such
performance does not and will not require the permission or approval of any
governmental agency, and will not result in the imposition or creation of any
lien or charge against any assets of the Corporation. Except as disclosed in the
Financial Statements or the SEC Reports, (i) the Corporation has no obligation
to redeem or repurchase any of its equity securities, (ii) no shareholder or
other person has pre-emptive or other rights to aquire equity securities of the
Corporation, and (iii) the Corporation has no obligation to register any of its
securities otherwise than pursuant to Section 8 of this Agreement or as
disclosed on Exhibit A hereto.
4.4 Material Agreements; No Defaults. All material indentures, loan
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agreements, leases, mortgages and other agreements binding on the Corporation or
its subsidiaries are identified in the list of exhibits contained in the
Corporation's most recent 10K report ("Other Agreements"). No material default
on the part of the Corporation or any of its subsidiaries (including any event
which, with notice or the passage of time, would constitute a default) exists
under any of the Other Agreements.
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4.5 Material Liabilities. Except for liabilities disclosed in the
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Financial Statements or the SEC Reports, and obligations under the Other
Agreements, the Corporation and its subsidiaries have no material liabilities or
obligations, absolute or contingent, other than liabilities arising in the
ordinary course of business subsequent to the date of the most recent of the
Financial Statements.
4.6 Properties. The Corporation and its subsidiaries (i) have good
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title to the properties and assets reflected in the Financial Statements as
owned by them, (ii) have valid leasehold interests in the properties leased by
them, and (iii) own or have the right to use under valid license agreements all
trademarks, trade names, copyrights, patents and other intellectual property
rights regularly utilized by them; subject in each case to no material liens,
security interests or adverse claims except as disclosed in the Financial
Statements or the SEC Reports.
4.7 Litigation. There are no material legal actions, arbitrations,
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or administrative proceedings pending against the Corporation or its
subsidiaries, except for the matters disclosed in the SEC Reports.
4.8 Tax Matters. The Corporation and its subsidiaries have filed on
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a timely basis all tax returns required to be filed by them and have paid their
taxes prior to delinquency, and have made adequate accruals for tax liabilities
on the Financial Statements in accordance with generally accepted accounting
principles.
4.9 ERISA Compliance. Neither the Corporation nor any of its
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subsidiaries has incurred any material funding deficiency within the meaning of
the Employee Retirement Income Security Act of 1974, as amended ("ERISA") or any
material liability to the Pension Benefit Guarantee Corporation in connection
with any employee benefit plan. The Corporation and its subsidiaries are in
compliance in all material respects with all applicable provisions of ERISA, and
have no obligations with respect to any multi-employer plan. No "reportable
event" as such term is defined in ERISA, which may result in any material
liability, has occurred with respect to any employee benefit or other plan
maintained for employees of the Corporation or any subsidiary.
4.10 Environmental Matters. Except as disclosed in the SEC Reports,
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neither the Corporation nor any of its subsidiaries (i) has been notified by
any governmental authority that it is, or may be, a Responsible Party with
respect to cleanup or remediation of any environmental condition or hazardous
waste site, (ii) has violated any law, regulation, order or requirement of
governmental authority with respect to Hazardous Substances, or (iii) has
incurred any material liability for violation or noncompliance with applicable
Environmental Regulations. The term "Environmental Regulations" means any law,
regulation, order or
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requirement relating to protection of the environment, including without
limitation, the Clean Air Act, the Clean Water Act, the Comprehensive
Environmental Response, Compensation and Liability Act, the Resource
Conservation and Recovery Act, the Hazardous Materials Transportation Act and
the Toxic Substances Control Act. The term "Hazardous Substance" means any
substance defined or listed as such in any Environmental Regulation.
4.11 Other Matters. The Corporation is not now and will not be after
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giving effect to the receipt of the proceeds from the sale of the Stock an
"Investment Company" within the meaning of the Investment Company act of 1940,
nor will it be controlled by or acting on behalf of any person which is such an
investment company. The Corporation is not selling the Stock "for the purpose of
purchasing or carrying any margin stock" within the meaning of Regulation G of
the Board of Governors of the Federal Reserve System. The Corporation has not
offered the Stock to any person other than the Purchaser.
SECTION 5
Representations and Warranties of the Purchaser
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The Purchaser represents and warrants to the Corporation that:
5.1 Corporate Power and Authority. It is validly existing and in
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good standing with all requisite power and authority to enter into this
Agreement and carry out its obligations hereunder and has taken all actions
necessary to authorize it to enter into this Agreement and carry out such
obligations.
5.2 Investment. It is acquiring the Stock for investment and not
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with the view to, or for resale in connection with, any distribution thereof. It
is an "accredited investor" within the meaning of the Securities Act of 1933 and
the rules thereunder. It understands that the Stock has not been registered
under the Securities Act of 1933 nor qualified under any State blue sky law by
reason of specified exemptions therefrom which depend upon, among other things,
the bona fide nature of its investment intent as expressed herein.
5.3 Rule 144. It acknowledges that the Stock must be held
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indefinitely unless it is subsequently registered under the Securities Act of
1933 or an exemption from such registration is available. It has been advised or
is aware of the provisions of the Rule 144 promulgated under the Securities Act.
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SECTION 6
Conditions to Obligations of the Purchaser
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The obligation of the Purchaser to purchase the Stock is subject to
the fulfillment on or prior to the Closing Date of each of the following
conditions:
(a) Representations and Warranties. The representations and
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warranties of the Corporation shall be true and correct in all material respects
on the Closing Date.
(b) Performance. All covenants, agreements and conditions
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contained in this Agreement to be performed or complied with by the Corporation
on or to the Closing Date shall have been performed or complied with in all
material respects.
(c) Opinion of Corporation's Counsel. The Purchaser shall have
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received from counsel to the Corporation an opinion confirming the
representations set forth in the first sentence of Section 4.3 hereof, and on
the basis of such counsel's review of the Other Agreements and certificates of
officers of the Corporation as to factual matters, confirming the
representations set forth in the second and third sentences of Section 4.3
hereof.
(d) Legal Issuance. At the time of the Closing, the issuance
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and purchase of the Stock shall be legally permitted by all laws and regulations
to which the Purchaser and the Corporation are subject.
(e) Proceedings and Documents. All corporate and other
-------------------------
proceedings in connection with the transactions contemplated hereby and all
documents and instruments incident to such transactions shall be satisfactory in
form and substance to the Purchaser and its counsel.
(f) Satisfaction of Obligations to Broker. The Corporation
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shall have furnished the Purchaser with assurances satisfactory to the Purchaser
that the Corporation has satisfied its obligations to any broker entitled to
compensation in connection with the sale of the Stock.
SECTION 7
Conditions to Obligations of the Corporation
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The Corporation's obligation to sell the Stock is subject to the
fulfillment on or prior to the Closing Date of each of the following conditions:
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(a) Representation and Warranties. The representations
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and warranties made by the Purchaser shall be true and correct in all material
respects on the Closing Date.
(b) Legal Issuance. At the time of the Closing, the issuance
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and purchase of the stock shall be legally permitted by all laws and
regulations to which the Purchaser and the Corporation are subject.
(c) Payment. The Corporation shall concurrently receive payment
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for the stock as provided in Section 2.
SECTION 8
Covenant to Register
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(a) For purposes of this Section 8, the following definitions shall
apply:
(i) The terms "register", "registered", and "registration" refer
to a registration under the Securities Act of 1933, as amended (the "Act")
effected by preparing and filing a registration statement or similar
document in compliance with the Act or an amendment thereto, and the
declaration or ordering of effectiveness of such registration statement,
document or amendment thereto.
(ii) The term "Registrable Securities" means the Stock and any
securities of the Corporation or securities of any successor corporation
issued as, or issuable upon the conversion or exercise of any warrant,
right or other security that is issued as, a dividend or other distribution
with respect to, or in exchange for or in replacement of, the Stock.
(b) (i) The Corporation shall file a registration statement on
Form S-3 promptly after the Closing Date, covering all the Registrable
Securities, and shall use its best efforts to cause such registration
statement to become effective within 45 days. From time to time
thereafter, Purchaser shall have the right to require by notice in writing
that the Corporation register all or any part of the Registrable Securities
held by Purchaser (a "Demand Registration") and the Corporation shall
thereupon such registration in accordance herewith.
(ii) The Corporation shall not be obligated to effect Demand
Registration (i) if all intended of the Registrable Securities held by
Purchaser which are intended to be covered by the Demand Registration are,
at the time of the request of a Demand Registration, included in an
effective registration
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statement and the Corporation is in compliance with its obligations under
Subsection (d)(ii) through (v) hereof with respect to such registration
statement, or (ii) within 120 days after the effective date of any other
registration as to which Purchaser was given piggy-back rights pursuant to
subsection (c) hereof and in which Purchaser was able to register and sell
at least eighty percent (80%) of the Registrable Securities requested by
Purchaser to be included in such registration.
(c) If the Corporation proposes to register (including for this
purpose a registration effected by the Corporation for shareholders other than
the Purchaser) any of its stock or other securities under the Act in connection
with a public offering of such securities (other than a registration on Form
S-4, Form S-8 or other limited purpose form) and the Registrable Securities have
not heretofore been included in a registration statement under Subsection (b),
which remains effective, the Corporation shall, at such time, promptly give the
Purchaser written notice of such registration. Upon the written request of the
Purchaser given within twenty (20) days after receipt of such notice by the
Purchaser, the Corporation shall use its best efforts to cause to be registered
under the Act all Registrable Securities that the Purchaser requests to be
registered. However, the Corporation shall have no obligation under this
Subsection (c) to the extent that, with respect to a public offering
registration, any underwriter of such public offering reasonably requests that
the Registrable Securities or a portion thereof be excluded therefrom.
(d) Whenever required under this Section 8 to effect the registration
of any Registrable Securities, the Corporation shall, as expeditiously as
reasonably possible:
(i) Prepare and file with the SEC a registration statement with
respect to such Registrable Securities and use its best efforts to cause
such registration to become effective and, upon the request of the
Purchaser, keep such registration statement effective for so long as
Purchaser desires to dispose of the securities covered by such registration
statement (but not after Purchaser in the reasonable opinion of its counsel
is free to sell such securities under the provisions of Rule 144(k) under
the Act).
(ii) Prepare and file with the SEC such amendments and
supplements to such registration statements and the prospectus used in
connection with such registration statement as may be necessary to comply
with the provisions of the Act with respect to the disposition of all
securities covered by such registration statement.
(iii) Furnish to the Purchaser such numbers of copies of a
prospectus, including a preliminary prospectus,
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in conformity with the requirements of the 1933 Act, and such other
documents as the Purchaser may reasonably request in order to facilitate
the disposition of Registrable Securities owned by Purchaser.
(iv) Use its best efforts to register and qualify the securities
covered by such registration statement under such other securities or
Blue Sky laws of such jurisdictions as shall be reasonably requested
by Purchaser, provided that the Corporation shall not be required in
connection therewith or as a condition thereto to qualify to do business
or to file a general consent to service and process in any such states
or jurisdictions.
(v) Notify Purchaser of the happening of any event as a result
of which the prospectus included in such registration statement, as then
in effect, includes an untrue statement of material fact or omits to state
a material fact required to be stated therin or necessary to make the
statements therein not misleading in light of the circumstances then
existing.
(vi) Furnish, at the request of Purchaser, an opinion of counsel
of the Corporation, dated the effective date of the registration statement,
as to the due authorization and issuance of the securities being registered
and compliance with securities laws by the Corporation in connection with
the authorization and issuance thereof.
(e) The Purchaser will furnish to the Corporation in connection with
any registration under this Section 8 such information regarding itself, the
Registrable Securities and other securities of the Corporation held by it, and
the intended method of disposition of such securities as shall be required to
effect the registration of the Registrable Securities held by Purchaser.
(f) (i) The Corporation shall indemnify, defend and hold harmless
each holder of Registrable Securities which are included in a registration
statement pursuant to the provisions of Subsections (b) or (c), any
underwriter (as defined in the Act) for such holder, and the directors,
officers and controlling persons of such holder or underwriter from and
against, and shall reimburse all of them with respect to, any and all
claims, suits, demands, causes of action, losses, damages, liabilities,
costs or expenses ("Liabilities") to which any of them may become subject
under the Act or otherwise, arising from or relating to (A) any untrue
statement or alleged untrue statement of any material fact contained in
such registration statement, any prospectus contained therein or any
amendment or supplement thereto, or (B) the omission or alleged omission
to state therein a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances
in
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which they were made, not misleading; provided, however, that the
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Corporation shall not be liable in any such case to the extent that any
such Liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission so made in
conformity with information furnished by such person in writing
specifically for use in the preparation thereof.
(ii) Each holder of Registrable Securities included in a
registration pursuant to the provisions of Subsection (b) or (c) shall
indemnify, defend, and hold harmless the Corporation, its directors and
officers, and shall reimburse the Corporation, its directors and officers
with respect to, any and all Liabilities to which any of them may become
subject under the Act or otherwise, arising from or relating to (A) any
untrue statement or alleged untrue statement of any material fact contained
in such registration statement, any prospectus contained therein or any
amendment or supplement thereto, or (B) the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances in which they
were made, not misleading, in each case to the extent, but only to the
extent, that such untrue statement or alleged untrue statement or omission
or alleged omission was so made in reliance upon and in strict conformity
with written information furnished by or on behalf of such holder
specifically for use in the preparation thereof.
(iii) Promptly after receipt by an indemnified party pursuant to
the provisions of Subsection (f) (i) or (f) (ii) of notice of the
commencement of any action involving the subject matter of the foregoing
indemnity provisions, such indemnified party shall, if a claim thereof is
to be made against the indemnifying party pursuant to the provisions of
Subsection (f)(i) or (f)(ii), promptly notify the indemnifying party of the
commencement thereof; provided, however, that the failure to so notify the
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indemnifying party shall not relieve it from its indemnification
obligations hereunder except to the extent that the indemnifying party is
materially prejudiced by such failure. If such action is brought against
any indemnified party and it notifies the indemnifying party of the
commencement thereof, the indemnifying party shall have the right to
participate in, and, to the extent that it may wish, jointly with any other
indemnifying party similarly notified, to the assume the defense thereof,
with counsel satisfactory to such indemnified party; provided, however, if
-------- -------
the defendants in any action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably
concluded that there may be legal defenses different from or in addition to
those available to the indemnifying party, or if there is conflict of
interest which would prevent counsel for the indemnifying
11
partly from also representing the indemnified party, the indemnified party
shall have the right to select separate counsel to participate in the
defense of such action on behalf of such indemnified party. After notice
from the indemnifying party to such indemnified party of its election so to
assume the defense thereof, the indemnifying party shall not be liable to
such indemnified party pursuant to Subsection (f) (i) or (f) (ii) for any
expense of counsel subsequently incurred by such indemnified party in
connection with the defense thereof other than reasonable costs of
investigation,unless (A) the indemnified party shall have employed counsel
in accordance with the provisions of the preceding sentence, or (B) the
indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable
time after the notice of the commencement of the action. An indemnifying
party shall not be responsible for amounts paid in settlement without its
consent, provided that its consent may not be unreasonably withheld .
(g) (i) With respect to the inclusion of Registrable Securities in
a registration statement pursuant to subsections (b) or (c), all fees,
costs and expenses of and incidental to such registration, inclusion and
public offering shall be borne by the Corporation; provided, however, that
any securityholders participating in such registration shall bear their pro
rata share of the underwriting discounts and commissions, if any.
(ii) The fees, costs and expenses of registration to be borne by
the Corporation as provided in this Subsection (g) shall include, without
limitation, all registration, filing and NASD fees, printing expenses fees
and disbursements of counsel and accountants for the Corporation, and all
legal fees and disbursements and other expenses of complying with state
securities or Blue Sky laws of any jurisdiction or jurisdictions in which
securities to be offered are to be registered and qualified. Fees and
disbursements of counsel and accountants for the selling securityholders
shall, however, be borne by respective selling securityholder.
(h) The rights to cause the Corporation to register all or any
portion of Registrable Securities pursuant to this Section 8 may be
assigned by Purchaser to a transferee or assignee of 20% or more of the
Stock. Within a reasonable time after such transfer the Purchaser shall
notify the Corporation of the name and address of such transferee or
assignee and the securities with respect to which such registration rights
are being assigned. Such assignment shall be effective only if immediately
following such transfer the further disposition of such securities by the
transferee or assignee is restricted under the Act. Any transferee
asserting
12
registration rights hereunder shall be bound by the provisions of Section 8.
(i) From and after the date of this Agreement, the Corporation
shall not agree to allow the holders of any securities of the Corporation to
include any of their securities in any registration statement filed by the
Corporation pursuant to Subsection (b) unless the inclusion of such securities
will not reduce the amount of the Registrable Securities included therein.
SECTION 9
Affirmative Covenants of the Corporation
----------------------------------------
The Corporation hereby covenants that, during such time as the
Purchaser (or one of its affiliates) owns any Stock, or for four years,
whichever period is shorter :
9.1 Reports and Financial Statements.
--------------------------------
(a) The Corporation will cause its common stock to continue to
be registered under Sections 12(b) or 12(g) of the Securities Exchange Act of
1934, will comply in all respects with its reporting and filing obligations
under said Act, and will not take any action or file any document (whether or
not permitted by said Act or the rules thereunder) to terminate or suspend such
registration or to terminate or suspend its reporting and filing obligations
under said Act. The Corporation will take all action necessary to continue the
listing or trading of its common stock on any national securities exchange or
the Automated Quotation System of the National Association of Securities Dealers
on which such common stock is listed or traded, and will comply in all respects
with its reporting, filing and other obligations under respects with its
reporting, filing and other obligations under the bylaws or rules of said
exchange or Association.
(b) The Corporation will furnish to the Purchaser, concurrently
with the public distribution or filing thereof, each annual and quarterly report
to its shareholders, its reports on Form 10K and 10Q, and each other report,
registration statement, definitive proxy statement or other document filed with
the S.E.C., and each press release or other public announcement issued by the
Corporation.
9.2 Maintenance of Office. The Corporation will maintain an office
---------------------
or agency in the United States at such address as may be designed in writing
from time to time to the registered holders of the Stock, where notices,
presentations and demands to or upon the Corporation in respect of the Stock may
be given or made. Unless or until another office or agency is designated by the
Corporation, such office shall be at the address set forth adjacent to the name
of the Corporation at the foot of this Agreement.
13
9.3 Maintenance and Compliance. The Corporation will (i) maintain
---------------------------
its corporation existence, rights, powers and privileges in good standing, (ii)
comply in all material respects with all laws and governmental regulations and
restrictions applicable to its business or properties, (iii) keep records and
books of account and maintain a system of internal accounting controls in
accordance with generally accepted accounting principles and in compliance with
Section 13(b) (2) of the Securities Exchange Act of 1934, and (iv) retain
independent public accountants of recognized national standing as auditors of
the Corporation's annual financial statements.
9.4 Assignment of Rights. The rights of the Purchaser hereunder may
---------------------
be assigned by the Purchaser in connection with the transfer or assignment to a
single transferee of not less than 20% of the Stock originally purchased by the
Purchaser hereunder, and such rights may be further reassigned by such
transferee to another such single transferee. Any transferee asserting rights
under this Agreement shall be bound by its provisions.
9.5 Effect of Covenants. The covenants in Section 9.1 and 9.3 shall
--------------------
not be deemed to prohibit a merger, sale of all assets or other corporate
reorganization if (i) the entity surviving or succeeding to the Corporation is
bound by this Agreement with respect to its securities issued in exchange for or
replacement of the Stock, or (ii) the consideration received in exchange for or
replacement of the Stock is cash.
SECTION 10
Legend on Stock
---------------
Each certificate representing the Stock shall be stamped or otherwise
imprinted with a legend substantially in the following form (in addition to any
legend required under any applicable state securities laws):
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933 OR ANY STATE SECURITIES LAWS. THEY MAY NOT BE SOLD OR OFFERED FOR
SALE IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT AS TO THE
SECURITIES UNDER SAID ACT AND ANY APPLICABLE STATE SECURITIES LAW OR
AN OPINION OF COUNSEL SATISFACTORY TO THE CORPORATION THAT SUCH
REGISTRATION IS NOT REQUIRED.
Upon request of a holder of Stock the Corporation shall remove the
foregoing legend or issue to such holder a new certificate therefor free of any
such legend, if the Corporation shall have received either an opinion of counsel
or a no-action" letter of the S.E.C., in either case reasonably satisfactory in
14
substance to the Corporation and its counsel, to the effect that such legend is
no longer required.
SECTION 11
Miscellaneous
-------------
11.1 Governing Law. This Agreement shall be governed by and construed
-------------
in accordance with the laws of the State of California. Any action or
proceeding relating to this Agreement may be brought in the courts of California
sitting in Los Angeles County, or in the United States courts located in Los
Angeles County, California, and each of the parties irrevocably consents to the
jurisdiction of such courts in any such action or proceeding.
11.2 Successors and Assigns. Except as otherwise expressly provided
----------------------
herein, the provisions hereof shall inure to the benefit of and be binding upon
the successors and assigns of the parties.
11.3 Entire Agreement; Amendment. This Agreement (including any
---------------------------
Exhibit hereto) and the other documents delivered pursuant hereto constitute the
full and entire understanding and agreement between the parties with regard to
the subjects hereof and thereof. Neither this Agreement nor any term hereof may
be amended, waived, discharged or terminated except by a written instrument
signed by the Corporation and the Purchaser.
11.4 Notices, etc. All notices and other communications required or
------------
permitted hereunder shall be mailed by first-class mail, postage prepaid, or
delivered either by hand or by messenger, addressed (a) if to the Purchaser, as
indicated below the Purchaser's signature, or at such other address as the
Purchaser shall have furnished to the Corporation in writing, or (b) if to any
other holder of any Stock, at the address of such holder as shown on the records
of the Corporation, or (c) if to the Corporation, at its address set forth below
or at such other address as the Corporation shall have furnished to the
Purchaser and each such other holder in writing. All such notices or
communications shall be deemed given when actually delivered by hand, messenger,
facsimile or mailgram or, if mailed, three days after deposit in the U.S. mail.
11.5 Delays or Omissions. No delay or omission to exercise any right,
-------------------
power or remedy accruing to any party to this Agreement (including any holder of
Stock), upon any breach or default of another party under this Agreement, shall
impair any such right, power or remedy of such party nor shall it be construed
to be a waiver of any such breach or default, or an acquiescence therein, or of
or in any similar breach or default thereafter occurring; nor shall any waiver
of any single breach or
15
default be deemed a waiver of any other breach or default theretofore or
thereafter occurring. All remedies, either under this Agreement or by law or
otherwise afforded to any party, shall be cumulative and not alternative.
11.6 Severability. In case any provision of the Agreement shall be
------------
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
11.7 Titles and subtitles. The titles of the Sections and subsections
--------------------
of this Agreement are for convenience of reference only and are not to be
considered in construing this Agreement.
11.8 Counterparts. This Agreement may be executed in any number of
------------
counterparts, each of which shall be an original, but all of which together
shall constitute one investment.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered by their duly authorized officers as of the day and year
first written above.
NTN Communications, Inc.
By: /s/ Patrick J. Downs
-------------------------------------
Address: 2121 Palomar Airport Road
Suite 205
Carished, California 92009-1422
Purchaser: U.S. 6-10 Small Company Series
By: The DFA Investment Trust Company
By: /s/ Irene R. Diamont
-------------------------------------
Address: c/o Dimensional Fund Advisors
1299 Ocean Avenue, 12th floor
Santa Monica, California 90401
15
default be deemed a waiver of any other breach or default theretofore or
thereafter occurring. All remedies, either under this Agreement or by law or
otherwise afforded to any party, shall be cumulative and not alternative.
11.6 Severability. In case any provision of the Agreement shall be
------------
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
11.7 Titles and subtitles. The titles of the Sections and subsections
--------------------
of this Agreement are for convenience of reference only and are not to be
considered in construing this Agreement.
11.8 Counterparts. This Agreement may be executed in any number of
------------
counterparts, each of which shall be an original, but all of which together
shall constitute one investment.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered by their duly authorized officers as of the day and year
first written above.
NTN Communications, Inc.
By: /s/ Patrick J. Downs
-------------------------------------
Address: 2121 Palomar Airport Road
Suite 205
Carished, California 92009-1422
Purchaser: DFA Group Trust - 6-10 Subtrust
By: Dimensional Fund Advisors, Inc.
By: /s/ Irene R. Diamont
-------------------------------------
Address: Dimensional Fund Advisors
1299 Ocean Avenue, 12th floor
Santa Monica, California 90401
16
default be deemed a waiver of any other breach or default theretofore or
thereafter occurring. All remedies, either under this Agreement or by law or
otherwise afforded to any party, shall be cumulative and not alternative.
11.6 Severability. In case any provision of the Agreement shall be
------------
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
11.7 Titles and subtitles. The titles of the Sections and subsections
--------------------
of this Agreement are for convenience of reference only and are not to be
considered in construing this Agreement.
11.8 Counterparts. This Agreement may be executed in any number of
------------
counterparts, each of which shall be an original, but all of which together
shall constitute one investment.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered by their duly authorized officers as of the day and year
first written above.
NTN Communications, Inc.
By: /s/ Patrick J. Downs
-------------------------------------
Address: 2121 Palomar Airport Road
Suite 205
Carished, California 92009-1422
Purchaser: U.S. 9-10 Small Company Portfolio
By: DFA Investment Dimensions Group, Inc.
By: /s/ Irene R. Diamont
-------------------------------------
Address: Dimensional Fund Advisors
1299 Ocean Avenue, 12th floor
Santa Monica, California 90401
16
default be deemed a waiver of any other breach or default theretofore or
thereafter occurring. All remedies, either under this Agreement or by law or
otherwise afforded to any party, shall be cumulative and not alternative.
11.6 Severability. In case any provision of the Agreement shall be
------------
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
11.7 Titles and subtitles. The titles of the Sections and subsections
--------------------
of this Agreement are for convenience of reference only and are not to be
considered in construing this Agreement.
11.8 Counterparts. This Agreement may be executed in any number of
------------
counterparts, each of which shall be an original, but all of which together
shall constitute one investment.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered by their duly authorized officers as of the day and year
first written above.
NTN Communications, Inc.
By: /s/ Patrick J. Downs
-------------------------------------
Address: 2121 Palomar Airport Road
Suite 205
Carished, California 92009-1422
Purchaser: DFA Group Trust - Small Company
Subtrust
By: Dimensional Fund Advisors, Inc.
By: /s/ Irene R. Diamont
-------------------------------------
Address: Dimensional Fund Advisors
1299 Ocean Avenue, 12th floor
Santa Monica, California 90401
16
Exhibit A
---------
Registration Rights
The holders of the following securities of the Company have the
registration rights indicated:
Number of
Securities Outstanding Nature of
Security (4/21/95) Rights
-------- ---------------------- ---------
WC Warrants 759,000 Piggyback rights; Form S-3
currently effective as to
496,500 warrants and
warrant shares
WE Warrants 770,000 Piggyback rights; Form S-3
currently effective as to
all warrants and warrant
shares
Nonredeemable Warrants 1,570,429 Piggyback rights; Form S-3
currently effective as to
all warrants and warrant
shares
Common Stock 155,500 Form S-3 currently effective
as to all shares
Common Stock 512,500 Piggyback rights
Common Stock * *
__________________
* The Company also has in effect a Form S-3 registration statement relating
to the sale by certain selling shareholders of shares of Common Stock
originally issued in 1991. As of July 11, 1994, the date of the last
amendment to this Form S-3, there were 2,168,000 such shares registered.
All or substantially all of such shares are otherwise currently saleable,
without restriction, under Rule 144(k).