EXHIBIT 10.31
INVESTMENT AGREEMENT
between
NTN COMMUNICATIONS, INC.
and
THE INVESTOR NAMED HEREIN
Dated as of September 29, 1995
The securities to be purchased and sold pursuant to this Investment
Agreement have not been registered under the Securities Act of 1933, as amended,
(the "Act") or any state securities laws. They may not be offered or sold in
the absence of an effective registration statement as to the securities under
said Act and any applicable State securities law or an applicable exemption from
the registration requirements of the Act.
INVESTMENT AGREEMENT dated as of September 29, 1995 between NTN
Communications, Inc. (the "Company") and the investor whose name is set forth at
the foot of this Agreement (the "Investor").
The parties hereto agree as follows:
ARTICLE I
Purchase and Sale of Common Stock
---------------------------------
Section 1.1 Purchase and Sale of Common Stock. Upon the following terms
---------------------------------
and conditions, the Company shall issue and sell to the Investor, and the
Investor shall purchase from the Company, 250,000 shares of the Company's Common
Stock (the "Shares"). The number of shares to be sold shall be subject to
adjustment as hereinafter set forth.
Section 1.2 Purchase Price. The aggregate purchase price for the Shares
--------------
(the "Purchase Price") shall equal $1,000,000, payable in cash by wire transfer
or cashier's check in immediately available funds. The Purchase Price shall be
subject to adjustment as hereinafter set forth.
Section 1.3 Share Number, Valuation Period.
------------------------------
(a) The number of Shares that the Company shall be obligated to sell
and the Investor shall be obligated to purchase, in the aggregate, is referred
to herein as the "Share Number." Subject to adjustment as provided in Sections
1.3(c) and 1.3(e), the initial Share Number shall be the number set forth in
Section 1.1.
(b) The "Valuation Period" shall be a 60 trading day period commencing
January 15, 1996, or the first business day after the registration statement
referred to in Section 1.7 becomes effective, whichever is later, as the same
may be modified pursuant to Section 1.9 or Section 4.2(c) hereof; provided,
however, that the parties by mutual written consent may extend the Valuation
Period by up to 30 additional trading days; and provided further that the
Investor may, by notice to the Company, cause the Valuation Period to commence
at any time on or after April 15, 1996 if such registration statement has not
become effective by such date.
(c) Subject to the provisions of Section 1.4 hereof, if the Average
Share Price (hereinafter defined) during the Valuation Period is less than
$4.70, then the Company shall deliver to the Investor, at no additional cost,
the number (if a positive number) of shares of Common Stock that is obtained by
subtracting (x) the initial Share Number and (y) the number of any additional
shares issued pursuant to Section 1.3(e) from (z) the quotient obtained by
dividing the Purchase Price by 85% of the Average Share Price (rounded to the
nearest whole number) (together with any additional shares issued pursuant to
Section 1.3(e), the "Additional Shares").
INVESTMENT AGREEMENT dated as of September 29, 1995 between NTN
Communications, Inc. (the "Company") and the investor whose name is set forth at
the foot of this Agreement (the "Investor").
The parties hereto agree as follows:
ARTICLE I
Purchase and Sale of Common Stock
---------------------------------
Section 1.1 Purchase and Sale of Common Stock. Upon the following terms
---------------------------------
and conditions, the Company shall issue and sell to the Investor, and the
Investor shall purchase from the Company, 250,000 shares of the Company's Common
Stock (the "Shares"). The number of shares to be sold shall be subject to
adjustment as hereinafter set forth.
Section 1.2 Purchase Price. The aggregate purchase price for the Shares
--------------
(the "Purchase Price") shall equal $1,000,000, payable in cash by wire transfer
or cashier's check in immediately available funds. The Purchase Price shall be
subject to adjustment as hereinafter set forth.
Section 1.3 Share Number, Valuation Period.
------------------------------
(a) The number of Shares that the Company shall be obligated to sell
and the Investor shall be obligated to purchase, in the aggregate, is referred
to herein as the "Share Number." Subject to adjustment as provided in Sections
1.3(c) and 1.3(e), the initial Share Number shall be the number set forth in
Section 1.1.
(b) The "Valuation Period" shall be a 60 trading day period commencing
January 15, 1996, or the first business day after the registration statement
referred to in Section 1.7 becomes effective, whichever is later, as the same
may be modified pursuant to Section 1.9 or Section 4.2(c) hereof; provided,
however, that the parties by mutual written consent may extend the Valuation
Period by up to 30 additional trading days; and provided further that the
Investor may, by notice to the Company, cause the Valuation Period to commence
at any time on or after April 15, 1996 if such registration statement has not
become effective by such date.
(c) Subject to the provisions of Section 1.4 hereof, if the Average
Share Price (hereinafter defined) during the Valuation Period is less than
$4.70, then the Company shall deliver to the Investor, at no additional cost,
the number (if a positive number) of shares of Common Stock that is obtained by
subtracting (x) the initial Share Number and (y) the number of any additional
shares issued pursuant to Section 1.3(e) from (z) the quotient obtained by
dividing the Purchase Price by 85% of the Average Share Price (rounded to the
nearest whole number) (together with any additional shares issued pursuant to
Section 1.3(e), the "Additional Shares").
1
INVESTMENT AGREEMENT dated as of September 29, 1995 between NTN
Communications, Inc. (the "Company") and the investor whose name is set forth at
the foot of this Agreement (the "Investor").
The parties hereto agree as follows:
ARTICLE I
Purchase and Sale of Common Stock
---------------------------------
Section 1.1 Purchase and Sale of Common Stock. Upon the following terms
---------------------------------
and conditions, the Company shall issue and sell to the Investor, and the
Investor shall purchase from the Company, 525,000 shares of the Company's Common
Stock (the "Shares"). The number of shares to be sold shall be subject to
adjustment as hereinafter set forth.
Section 1.2 Purchase Price. The aggregate purchase price for the Shares
--------------
(the "Purchase Price") shall equal $2,100,000, payable in cash by wire transfer
or cashier's check in immediately available funds. The Purchase Price shall be
subject to adjustment as hereinafter set forth.
Section 1.3 Share Number, Valuation Period.
------------------------------
(a) The number of Shares that the Company shall be obligated to sell
and the Investor shall be obligated to purchase, in the aggregate, is referred
to herein as the "Share Number." Subject to adjustment as provided in Sections
1.3(c) and 1.3(e), the initial Share Number shall be the number set forth in
Section 1.1.
(b) The "Valuation Period" shall be a 60 trading day period commencing
January 15, 1996, or the first business day after the registration statement
referred to in Section 1.7 becomes effective, whichever is later, as the same
may be modified pursuant to Section 1.9 or Section 4.2(c) hereof; provided,
however, that the parties by mutual written consent may extend the Valuation
Period by up to 30 additional trading days; and provided further that the
Investor may, by notice to the Company, cause the Valuation Period to commence
at any time on or after April 15, 1996 if such registration statement has not
become effective by such date.
(c) Subject to the provisions of Section 1.4 hereof, if the Average
Share Price (hereinafter defined) during the Valuation Period is less than
$4.70, then the Company shall deliver to the Investor, at no additional cost,
the number (if a positive number) of shares of Common Stock that is obtained by
subtracting (x) the initial Share Number and (y) the number of any additional
shares issued pursuant to Section 1.3(e) from (z) the quotient obtained by
dividing the Purchase Price by 85% of the Average Share Price (rounded to the
nearest whole number) (together with any additional shares issued pursuant to
Section 1.3(e), the "Additional Shares").
1
(d) Subject to the provisions of Section 1.4 hereof, if the Average
Share Price during the Valuation Period is greater than $4.70, the Investor
shall pay to the Company by wire transfer in immediately available funds the
dollar amount by which (x) the product of 85% of the Average Share Price and the
initial Share Number exceeds (y) the Purchase Price paid pursuant to Section
1.2.
(e) In the event that the Company, on or prior to the end of the
Valuation Period, issues or sells any shares of its Common Stock or any of its
securities which are convertible into or exchangeable for its Common Stock or
any warrants or other rights to subscribe for or to purchase or any options for
the purchase of its Common Stock (other than shares or options issued pursuant
to the Company's option plans and shares issued upon exercise of options,
warrants and other rights outstanding on the Closing Date or as provided on
Exhibit A hereto), at a purchase price (the "Subsequent Sale Price") which is
- ---------
less than the Purchase Price divided by the initial Share Number, then the
Company shall deliver to the Investor, at no additional cost and in addition to
the Share Number, the number of shares of Common Stock that is obtained by
subtracting (x) the Share Number from (y) the quotient obtained by dividing the
Purchase Price by the Subsequent Sale Price (rounded to the nearest whole
number).
(f) For purposes hereof, the Average Share Price shall mean the
average of the closing prices of the Company's Common Stock on the American
Stock Exchange or on the principal stock exchange on which the Common Stock is
listed, as reported by the American Stock Exchange or such other exchange, as
the case may be, for all trading days during the Valuation Period.
Section 1.4 Installment Delivery; Payment and Settlement
--------------------------------------------
(a) At the end of each fifth trading day during the Valuation Period
(an "interim recomputation date") an interim computation shall be made to
determine whether additional shares would be deliverable assuming the actual
Average Share Price during the Valuation Period up to the interim recomputation
date becomes the Average Share Price for the entire Valuation Period. If, based
on the interim computation, additional shares would be required to be delivered,
then on the second business day following each successive interim recomputation
date the Company shall deliver to the Investor a portion of such additional
shares equal to the total number of such additional shares (less those already
delivered pursuant to this Section) divided by "x", where "x" is the total
number of trading days remaining in the Valuation Period after the last interim
computation date divided by five.
(b) A final determination shall be made at the end of the Valuation
Period and any shares then due pursuant to Section 1.3(c) shall be delivered on
the second business day thereafter, and any excess shares delivered shall then
be returned by the Investor. Any cash payment due from the Investor pursuant to
Section 1.3(d) shall be made on said second business day.
2
Section 1.5 Termination of Reset Process
----------------------------
At any time prior to the end of the Valuation Period, the parties may
agree in writing to terminate the Valuation Period.
Section 1.6 The Closing.
-----------
(a) The closing of the purchase and sale of the Shares (the
"Closing"), shall take place at the offices of the Investor, at 10:00 a.m.,
local time on the later of the following: (i) the date on which the last to be
fulfilled or waived of the conditions set forth in Article IV hereof and
applicable to the Closing shall be fulfilled or waived in accordance herewith,
or (ii) such other time and place and/or on such other date as the Investor and
the Company may agree. The date on which the Closing occurs is referred to
herein as the "Closing Date."
(b) (i) On the Closing Date, the Company shall deliver to the
Investor certificates representing the Share Number to be issued and sold to the
Investor on such date and registered in the name of the Investor or deposit such
Share Number into the accounts designated by the Investor and (ii) on the
Closing Date, the Investor shall deliver to the Company the Purchase Price by
cashier's check or wire transfer in immediately available funds to such account
as shall be designated in writing by the Company. In addition, each of the
Company and the Investor shall deliver all documents, instruments and writings
required to be delivered by either of them pursuant to this Agreement at or
prior to the Closing.
Section 1.7 Covenant to Register. For purposes of this Section 1.7, the
--------------------
following definitions shall apply:
(a) (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, and the declaration or ordering of effectiveness of
such registration statement, document or amendment thereto.
(ii) The term "Registrable Securities" means the Shares and any
Additional Shares issued pursuant to Section 1.3 hereof and any securities of
the Company 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 Shares and any Additional Shares issued pursuant to
Section 1.3 hereof.
(iii) The term "holder of Registrable Securities" means the
Investor and any permitted assignee of registration rights pursuant to Section
1.7(h).
(b) (i) The Company shall, as expeditiously as possible following
the Closing, file a registration statement on Form S-3 or an equivalent form
covering all the Registrable Securities, and shall cause such registration
statement to become effective by January
3
15, 1996 (the "Initial Registration"). In the event such registration is not so
declared effective or does not include all Registrable Securities, a holder of
Registrable Securities shall have the right to require by notice in writing that
the Company register all or any part of the Registrable Securities held by such
holder (a "Demand Registration") and the Company shall thereupon effect such
registration in accordance herewith. The parties agree that if the holder of
Registrable Securities demands registration of less than all of the Registrable
Securities, the Company, at its option, may nevertheless file a registration
statement covering all of the Registrable Securities. If such registration
statement is declared effective with respect to all Registrable Securities and
the Company is in compliance with its obligations under Subsection (d)(ii)
through (v) hereof, the demand registration rights granted pursuant to this
Section 1.7 (b) (i) shall cease. If such registration statement is not declared
effective with respect to all Registrable Securities the demand registration
rights described herein shall remain in effect until all Registrable Securities
have been registered under the Act.
(ii) The Company shall not be obligated to effect a Demand
Registration under Subsection (i) if all of the Registrable Securities held by
the holder of Registrable Securities which are demanded to be covered by the
Demand Registration are, at the time of the request of a Demand Registration,
included in an effective registration statement and the Company is in compliance
with its obligations under Subsection (d) (ii) through (v) hereof.
(iii) The Company may suspend the effectiveness of any such
registration effected pursuant to this Section 1.7(b) in the event, and for such
period of time as, such a suspension is required by the rules and regulations of
the Securities and Exchange Commission ("SEC").
(iv) If a registration statement covering all Registrable
Securities is not effective by February 1, 1996, then the Company shall pay the
Investor a penalty of 3% of the total number of Registrable Securities in
additional shares, and if not effective by 30 days thereafter, an additional
penalty of 3% in additional shares for each 30 day period thereafter that such a
registration statement is not effective (pro-rata as to a period of less than 30
days). Such shares shall be issued within five business days after the end of
each relevant date or period, or part thereof. Such shares shall constitute
"Shares" and "Registrable Securities" as defined herein. If delivery of such
shares would cause Investor to be required to file a statement under Section
13(d) of the Securities Exchange Act of 1934, then in lieu of such delivery the
Company shall pay to Investor in cash the value of such shares determined by the
last reported trading price of such shares on the last day of the relevant date
or period. This subsection is subject to the provisions of Section 7.2(a)
hereof.
(c) If the Company proposes to register (including for this purpose a
registration effected by the Company for shareholders other than the Investor)
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 all Registrable Securities have not theretofore
been included in a registration statement under Subsection (b) which remains
effective, the Company shall, at such time, promptly give all holders of
Registrable Securities written notice of such registration. Upon the written
request of any holder
4
of Registrable Securities given within twenty (20) days after receipt of such
notice by the holder of Registrable Securities, the Company shall use its best
efforts to cause to be registered under the Act all Registrable Securities that
such holder of Registrable Securities requests to be registered. However, the
Company 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 notifies such holder(s) in writing of its determination that
the Registrable Securities or a portion thereof should be excluded therefrom.
(d) Whenever required under this Section to effect the registration
of any Registrable Securities, including, without limitation, the Initial
Registration, the Company shall, as expeditiously as reasonably possible:
(i) Prepare and file with the Securities and Exchange
Commission ("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 Investor, keep such registration
statement effective, pursuant to the provisions of Regulation (S)(S) 230.415
under the Act or otherwise, for so long as any holder of Registrable Securities
desires to dispose of the securities covered by such registration statement (but
not after the holder of Registrable Securities, in the reasonable opinion of its
counsel, is free to sell such securities in any three month period under the
provisions of Rule 144 under the Act).
(ii) Prepare and file with the SEC such amendments and
supplements to such registration statement 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 each holder of Registrable Securities such
numbers of copies of a current prospectus, including a preliminary prospectus,
in conformity with the requirements of the Act, and such other documents as each
holder of Registrable Securities may reasonably require in order to facilitate
the disposition of Registrable Securities owned by such holder of Registrable
Securities.
(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 the
holder of Registrable Securities, provided that the Company 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 each holder of Registrable Securities 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 therein or
necessary to make the statements therein not misleading in light of the
circumstances then existing, and use its best efforts to promptly update and/or
correct such prospectus.
5
(vi) Furnish, at the request of any holder of Registrable
Securities, an opinion of counsel of the Company, 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 Company
in connection with the authorization, issuance and registration thereof.
(vii) Use its best efforts to list the Registrable Securities
covered by such registration statement with any securities exchange on which the
Common Stock is then listed;
(viii) Make available for inspection by the holder of Registrable
Securities, upon request, all SEC Documents (as defined below) filed subsequent
to the Closing and require the Company's officers, directors and employees to
supply all information reasonably requested by any holder of Registrable
Securities in connection with such registration statement.
(e) Each holder of Registrable Securities will furnish to the Company
in connection with any registration under this Section such information
regarding itself, the Registrable Securities and other securities of the Company
held by it, and the intended method of disposition of such securities as shall
be reasonably required to effect the registration of the Registrable Securities
held by such holder of Registrable Securities.
(f) (i) The Company 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) from and against, and shall
reimburse such holder with respect to, any and all claims, suits, demands,
causes of action, losses, damages, liabilities, costs or expenses
("Liabilities") to which such holder 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; provided, however, that
----------
the Company 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 omission so made
in conformity with information furnished by such holders in writing specifically
for use in the preparation thereof.
(ii) Any holder of Registrable Securities which are included in
a registration statement pursuant to the provisions of Subsection (b) or (c)
shall indemnify, defend and hold harmless the Company and shall reimburse the
Company with respect to any Liabilities to which the Company 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 the light of the circumstances in which they were made, not misleading, in
each case if (but only if) and to the extent that any such Liability arises out
of or is based upon an untrue statement or omission so made in conformity
6
with information furnished by such holder in writing specifically for use in the
preparation thereof.
(iii) Promptly after receipt by an indemnified party pursuant to
the provisions of Subsections (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 in respect thereof is to be made
against an indemnifying party hereunder, promptly notify the indemnifying party
in writing thereof, but the omission so to notify the indemnifying party shall
not relieve such party from its indemnification obligations hereunder except to
the extent that the indemnifying party is materially prejudiced by such
omission. The indemnifying party shall be entitled to participate in and, to
the extent it shall wish, to assume and undertake the defense thereof with
counsel reasonably satisfactory to the indemnified party, and after notice from
the indemnifying party to the indemnified party of its election so to assume and
undertake the defense thereof, the indemnifying party shall not be liable to the
indemnified party under this section for any legal expenses subsequently
incurred in connection with the defense thereof other than reasonable costs of
investigation and of liaison with counsel so selected, provided, however, that
----------
if the defendants in any such action include both the Company and a holder of
Registrable Securities and the indemnified party shall have reasonably
concluded, based on the advice of counsel, that there may be reasonable defenses
available to it which are different from or additional to those available to the
indemnifying party, or if the interests of the indemnified party reasonably may
be deemed to conflict with the interests of the indemnifying party, the
indemnified party shall have the right to select a separate counsel and to
assume such legal defenses and otherwise to participate in the defense of such
action, with the expenses and fees of such separate counsel and other expenses
related to such participation to be reimbursed by indemnifying party as
incurred.
(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 Company; provided, however, that any securityholders
participating in such registration shall bear their pro rata share of the
underwriting discounts and commissions, if any, incurred in connection with such
registration.
(ii) The fees, costs and expenses of registration to be borne
by the Company as provided in this Subsection (g) shall include, without
limitation, all registration, filing, stock exchange and NASD fees, printing
expenses, fees and disbursements of counsel and accountants for the Company, 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 the respective selling securityholders.
(h) (i) The rights to cause the Company to register all or any
portion of Registrable Securities pursuant to this Section may be assigned by
Investor to a transferee or assignee of 20% or more, in the aggregate, of the
Shares and the Additional Shares. Within a
7
reasonable time after such transfer the Investor shall notify the Company 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 shall agree in writing at the time of transfer to be bound by the
provisions of this Agreement.
(ii) From and after the date of this Agreement, the Company
shall not agree to allow the holders of any securities of the Company to include
any of their securities in any registration statement filed by the Company
pursuant to Subsection (b) unless the inclusion of such securities will not
reduce the amount of the Registrable Securities included therein.
(i) The Investor's right to receive Additional Shares shall be deemed
to be a "transferable warrant" as such term is used in General Instruction I.B.4
of Form S-3 under the Act.
Section 1.8 Adjustments. Subject to the provisions of Section 1.4, if an
-----------
Investor shall be entitled to the issuance of Additional Shares, the Company
shall deliver to the Investor at the offices of the Investor on the third (3d)
business day after the end of the Valuation Period one or more certificates
representing the Additional Shares so to be delivered in accordance with this
Agreement, registered in the name of the Investor, or deposit such Additional
Shares into accounts designated by the Investor; provided, however, that if the
sum of the shares then beneficially owned by the Investor, and any Additional
Shares then issuable to the Investor, as determined by the Investor, in its sole
determination shall equal 4.99% or more of the shares of Company's Common Stock
issued and outstanding (as determined in accordance with Section 13(d) of the
Securities Exchange Act of 1934) then, and in such event, (x) the number of
Additional Shares to be issued to the Investor pursuant to this paragraph shall
be reduced to the number which, together with the Share Number, shall equal
4.99% of the shares of the Company's Common Stock issued and outstanding (as so
determined), and (y) in consideration for such reduction in Additional Shares,
the Company shall pay to the Investor a sum equal to the greater of (a) the
product of 85% of the Average Share Price and the reduction in the Additional
Shares to be issued as a result of the preceding clause (x), and (b) the product
of the Subsequent Sale Price and the reduction in the Additional Shares to be
issued as a result of the preceding clause (x).
Section 1.9 Rescheduling. If after the date hereof and prior to the
------------
expiration of the Valuation Period any person shall (a) publicly announce a
tender offer or exchange offer for the Company's Common Stock, or (b) publicly
announce plans for a merger, consolidation, sale of substantially all assets or
potential change in control of the Company, the Investor may in its sole
discretion elect by written notice to the Company to shorten the Valuation
Period so as to end on a date which is either before or after the record date
for the consummation of any such transaction, which election must be made prior
to consummation of any such transaction. For purposes of the foregoing, it is
understood and agreed that the Investor may, but shall not be required to,
reduce or entirely eliminate the Valuation Period or reschedule the Valuation
Period.
8
ARTICLE II
Representations and Warranties
Section 2.1 Representations and Warranties of the Company. The Company
---------------------------------------------
hereby makes the following representations and warranties to the Investor:
(a) Organization and Qualification. The Company is a corporation
------------------------------
duly incorporated and existing in good standing under the laws of the State of
Delaware, and has the requisite corporate power to own its properties and to
carry on its business as now being conducted. The Company does not have any
active subsidiaries, except for those identified in the SEC Documents (as
hereinafter defined). Each of the Company and its subsidiaries is duly qualified
as a foreign corporation to do business and is in good standing in every
jurisdiction in which the nature of the business conducted or property owned by
it makes such qualification necessary and where the failure so to qualify would
have a Material Adverse Effect. "Material Adverse Effect" means any adverse
effect on the operations, properties, prospects, or financial condition of the
entity with respect to which such term is used and which is material to such
entity and other entities controlling or controlled by such entity taken as a
whole.
(b) Authorization; Enforcement. (i) The Company has the requisite
--------------------------
corporate power and authority to enter into and perform this Agreement and to
issue the Shares and the Additional Shares in accordance with the terms hereof,
(ii) the execution and delivery of this Agreement by the Company and the
consummation by it of the transactions contemplated hereby have been duly
authorized by all necessary corporate action, and no further consent or
authorization of the Company or its Board of Directors or stockholders is
required, (iii) this Agreement has been duly executed and delivered by the
Company, and (iv) this Agreement constitutes a valid and binding obligation of
the Company enforceable against the Company in accordance with its terms, except
as such enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium, liquidation or similar laws relating to, or
affecting generally the enforcement of, creditors' rights and remedies or by
other equitable principles of general application.
(c) Capitalization. The authorized capital stock of the Company and
--------------
the shares thereof currently issued and outstanding are as most recently
described in the SEC Documents and there have been no changes (except for
changes described on Exhibit A) therein since such description. All of the
outstanding shares of the Company's Common Stock have been validly issued and
are fully paid and nonassessable. Except as set forth in Exhibit A hereto and
---------
as described in the SEC Documents, no shares of Common Stock are entitled to
preemptive rights or registration rights and there are no outstanding options,
warrants, scrip, rights to subscribe to, calls or commitments of any character
whatsoever relating to, or securities or rights convertible into, any shares of
capital stock of the Company, or contracts, commitments, understandings, or
arrangements by which the Company is or may become bound to issue additional
shares of capital stock of the Company or options, warrants, scrip, rights to
subscribe to, or commitments to purchase or acquire, any shares, or securities
or rights convertible into shares, of capital stock of the Company. The Company
has furnished to the Investor true and correct copies of the
9
Company's Certificate of Incorporation as in effect on the date hereof (the
"Certificate"), and the Company's By-Laws, as in effect on the date hereof (the
"By-Laws").
(d) Issuance of Shares. The issuance of the Shares and Additional
------------------
Shares has been duly authorized and, when paid for or issued in accordance with
the terms hereof, shall be validly issued, fully paid and non-assessable.
(e) No Conflicts. The execution, delivery and performance of
------------
this Agreement by the Company and the consummation by the Company of the
transactions contemplated hereby do not and will not (i) result in a violation
of the Company's Certificate or By-Laws or (ii) conflict with, or constitute a
default (or an event which with notice or lapse of time or both would become a
default) under, or give to others any rights of termination, amendment,
acceleration or cancellation of, any agreement, indenture or instrument to which
the Company is a party, or result in a violation of any federal, state, local or
foreign law, rule, regulation, order, judgment or decree (including Federal and
state securities laws and regulations) applicable to the Company or by which any
property or asset of the Company is bound or affected (except for such
conflicts, defaults, terminations, amendments, accelerations, cancellations and
violations as would not, individually or in the aggregate, have a Material
Adverse Effect); provided that, for purposes of such representation as to
Federal, state, local or foreign law, rule or regulation, no representation is
made herein with respect to any of the same applicable solely to the Investor
and not to the Company. The business of the Company is not being conducted in
violation of any law, ordinance or regulations of any governmental entity,
except for possible violations which either singly or in the aggregate do not
have a Material Adverse Effect. The Company is not required under Federal, state
or local law, rule or regulation in the United States to obtain any consent,
authorization or order of, or make any filing or registration with, any court or
governmental agency in order for it to execute, deliver or perform any of its
obligations under this Agreement or issue and sell the Shares or the Additional
Shares in accordance with the terms hereof (other than the filing of a Form D
with the SEC, any stock exchange filings or state securities filings which may
be required to be made by the Company subsequent to the Closing, and any
registration statement which may be filed in accordance with Section 1.7
herein); provided that, for purposes of the representation made in this
sentence, the Company is assuming and relying upon the accuracy of the relevant
representations and agreements of the Investor herein.
(f) SEC Documents, Financial Statements. The Common Stock of
-----------------------------------
the Company is registered pursuant to Section 12(g) of the Securities and
Exchange Act of 1934, as amended (the "Exchange Act") and the Company has filed
all reports, schedules, forms, statements and other documents required to be
filed by it with the SEC pursuant to the reporting requirements of the Exchange
Act, including material filed pursuant to Section 13(a) or 15(d), in addition to
one or more registration statements and amendments thereto heretofore filed by
the Company with the SEC (all of the foregoing including filings incorporated by
reference therein being hereinafter referred to herein as the "SEC Documents").
The Company has delivered to the Investor true and complete copies of the
quarterly and annual (including, without limitation, proxy information and
solicitation materials) SEC Documents filed with the SEC since December 31,
1994. The Company has not provided to the Investor any information
10
which, according to applicable law, rule or regulation, should have been
disclosed publicly by the Company but which has not been so disclosed, other
than with respect to the transactions contemplated by this Agreement. As of
their respective dates, the SEC Documents complied in all material respects with
the requirements of the Exchange Act and the rules and regulations of the SEC
promulgated thereunder, and none of the SEC Documents 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. The financial
statements of the Company included in the SEC Documents comply as to form in all
material respects with applicable accounting requirements and the published
rules and regulations of the SEC or other applicable rules and regulations with
respect thereto. Such financial statements have been prepared in accordance
with generally accepted accounting principles applied on a consistent basis
during the periods involved (except (i) as may be otherwise indicated in such
financial statements or the notes thereto or (ii) in the case of unaudited
interim statements, to the extent they may not include footnotes or may be
condensed or summary statements) and fairly present in all material respects the
financial position of the Company as of the dates thereof and the results of
operations and cash flows for the periods then ended (subject, in the case of
unaudited statements, to normal year-end audit adjustments).
(g) No Material Adverse Change. Since December 31, 1994, the date
--------------------------
through which the most recent annual report of the Company on Form 10-K has been
prepared and filed with the SEC, a copy of which is included in the SEC
Documents, no Material Adverse Effect has occurred or exists with respect to the
Company except as otherwise disclosed or reflected in other SEC Documents
prepared through or as of a date subsequent to December 31, 1994, except that
the Company has continued to incur losses from operations and decreases in
working capital.
(h) No Undisclosed Liabilities. The Company has no liabilities
--------------------------
or obligations not disclosed in the SEC Documents, other than those incurred in
the ordinary course of the Company's business since June 30, 1995 and which,
individually or in the aggregate, do not or would not have a Material Adverse
Effect on the Company.
(i) No Undisclosed Events or Circumstances. No event or circumstance
--------------------------------------
has occurred or exists with respect to the Company or its business, properties,
prospects, operations or financial condition, which, under applicable law, rule
or regulation, requires public disclosure or announcement by the Company but
which has not been so publicly announced or disclosed.
Section 2.2 Representations and Warranties of the Investor. The Investor
----------------------------------------------
hereby makes the following representations and warranties to the Company:
(a) Authorization, Enforcement. (i) The Investor has the
--------------------------
requisite power and authority to enter into and perform this Agreement and to
purchase the Shares being sold hereunder, (ii) the execution and delivery of
this Agreement by the Investor and the consummation by it of the transactions
contemplated hereby have been duly authorized by all necessary corporate or
partnership action, and no further consent or authorization of the Investor
11
or its Board of Directors, stockholders, or partners, as the case may be, is
required, (iii) this Agreement has been duly authorized, executed and delivered
by the Investor, and (iv) this Agreement constitutes a valid and binding
obligation of the Investor enforceable against the Investor in accordance with
its terms, except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium, liquidation or similar laws relating to,
or affecting generally the enforcement of, creditors' rights and remedies or by
other equitable principles of general application.
(b) No Conflicts. The execution, delivery and performance of
------------
this Agreement and the consummation by the Investor of the transactions
contemplated hereby or relating hereto do not and will not (i) result in a
violation of the Investor's charter documents or By-Laws or (ii) conflict with,
or constitute a default (or an event which with notice or lapse of time or both
would become a default) under, or give to others any rights of termination,
amendment, acceleration or cancellation of any agreement, indenture or
instrument to which the Investor is a party, or result in a violation of any
law, rule, or regulation, or any order, judgment or decree of any court or
governmental agency applicable to the Investor or its properties (except for
such conflicts, defaults and violations as would not, individually or in the
aggregate have a Material Adverse Effect on the Investor). The business of the
Investor is not being conducted in violation of any law, ordinance or regulation
of any governmental entity, except for possible violations which either singly
or in the aggregate do not have a Material Adverse Effect. The Investor is not
required to obtain any consent, authorization or order of, or make any filing or
registration with, any court or governmental agency in order for it to execute,
deliver or perform any of its obligations under this Agreement or purchase the
Shares or the Additional Shares in accordance with the terms hereof, provided
that for purposes of the representation made in this sentence, the Investor is
assuming and relying upon the accuracy of the relevant representations and
agreements of the Company herein.
(c) Investment Representation. The Investor is purchasing the
-------------------------
Shares and, if any, the Additional Shares for investment purposes and not with a
view towards distribution. Investor has no present intention to sell the Shares
or the Additional Shares and the Investor has no present arrangement (whether or
not legally binding) at any time to sell the Shares or the Additional Shares to
or through any person or entity; provided, however, except as provided in
subsection (f) below, that by making the representations herein, the Investor
does not agree to hold the Shares or the Additional Shares for any minimum or
other specific term and reserves the right to dispose of the Shares or the
Additional Shares at any time in accordance with Federal securities laws
applicable to such disposition.
(d) Accredited Investor. The Investor is an accredited investor
-------------------
as defined in Regulation (S)(S) 230.501 promulgated under the Act.
(e) Rule 144. The Investor understands that the Shares and any
--------
Additional Shares must be held indefinitely unless such Shares or Additional
Shares are subsequently registered under the Act or an exemption from
registration is available. The Investor has been advised or is aware of the
provisions of Rule 144 promulgated under the Act.
12
(f) Limitations. Notwithstanding the foregoing, the Investor shall
-----------
not sell (including a short sale), transfer or otherwise dispose of the Shares,
or any Additional Shares issued to the Investor, at any time before January 15,
1996; provided however that the Investor shall not be prohibited from selling at
any time any securities of the Company which were not acquired pursuant to this
Agreement. During the Valuation Period the Investor will only transfer or
otherwise dispose of its shares in accordance with all applicable laws, and in
the event the Investor engages in short sale transactions or other hedging
activities during the Valuation Period which involve, among other things, sales
of Common Stock of the Company, Investor will, to the extent within its
reasonable control, conduct such activities so as not to complete or effect any
such sale on any trading day during such period at a price which is lower than
the lowest sale effected on such day by persons other than the Investor.
ARTICLE III
Covenants
---------
Section 3.1 Securities Compliance.
---------------------
(a) The Company shall notify the SEC and the American Stock Exchange,
in accordance with their respective requirements, of the transactions
contemplated by this Agreement, and shall take all other necessary action and
proceedings as may be required and permitted by applicable law, rule and
regulation, including, without limitation, the filing of a Form D with the SEC,
for the legal and valid issuance of the Shares and the Additional Shares to the
Investor.
(b) The Investor understands that the Shares and, if any, the
Additional Shares, are being offered and sold in reliance on a transactional
exemption from the registration requirements of Federal and state securities
laws and that the Company is relying upon the truth and accuracy of the
representations, warranties, agreements, acknowledgments and understandings of
such Investor set forth herein in order to determine the applicability of such
exemptions and the suitability of such Investor to acquire the Shares.
Section 3.2 Corporate. (a) From the date hereof through the third
---------
business day after the end of the Valuation Period the Company shall not (i)
amend its Certificate or By-Laws so as to adversely affect any rights of the
Investor; (ii) split, combine or reclassify its Common Stock or declare or set
aside or pay any dividend or other distribution with respect to its Common Stock
unless provision is made to fully protect the rights of the Investor; (iii)
issue or sell, directly or indirectly, shares of the Company's Common Stock in a
manner or upon terms as could reasonably be expected to affect the market for
the Common Stock materially and adversely; or (iv) enter into any agreement with
respect to the foregoing. The Company shall at all times reserve and keep
available, solely for issuance and delivery as Shares or Additional
13
Shares hereunder, such shares of Common Stock as shall from time to time be
issuable or reasonably be expected to be issuable as Shares or Additional Shares
hereunder.
(b) The Company will cause its Common Stock to continue to be
registered under Sections 12(b) or 12(g) of the Exchange Act, will comply in all
respects with its reporting and filing obligations under said act, will comply
with all requirements related to any registration statement filed pursuant to
Section 1.7 herein, 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, except as permitted herein. The Company will take
all reasonable steps necessary to continue the listing or trading of its Common
Stock on the American Stock Exchange and will comply in all material respects
with the Company's reporting, filing and other obligations under the bylaws or
rules of said exchange.
ARTICLE IV
Conditions
----------
Section 4.1 Conditions Precedent to the Obligation of the Company to Sell
-------------------------------------------------------------
the Shares. The obligation hereunder of the Company to issue and/or sell the
- ----------
Shares or the Additional Shares to the Investor is further subject to the
satisfaction, at or before the respective issuance and deliveries thereof, of
each of the following conditions set forth below. These conditions are for the
Company's sole benefit and may be waived by the Company at any time in its sole
discretion.
(a) Accuracy of the Investor' Representations and Warranties. The
--------------------------------------------------------
representations and warranties of the Investor shall be true and correct in all
material respects.
(b) Performance by the Investor. The Investor shall have performed,
---------------------------
satisfied and complied in all material respects with all covenants, agreements
and conditions required by this Agreement to be performed, satisfied or complied
with by the Investor at or prior to such date.
(c) No Injunction. No statute, rule, regulation, executive order,
-------------
decree, ruling or injunction shall have been enacted, entered, promulgated or
endorsed by any court or governmental authority of competent jurisdiction which
prohibits the consummation of any of the transactions contemplated by this
Agreement.
(d) Listing. The Shares shall have been approved for listing by the
-------
American Stock Exchange.
Section 4.2 Conditions Precedent to the Investor's Obligation to Purchase
-------------------------------------------------------------
the Shares. The obligation of the Investor hereunder to acquire and pay for the
- ----------
Shares is subject to the satisfaction, at or before the Closing, of each of the
conditions set forth below. These conditions
14
are for the Investor's sole benefit and may be waived by the Investor at any
time in its sole discretion.
(a) Accuracy of the Company's Representations and Warranties. The
--------------------------------------------------------
representations and warranties of the Company shall be true and correct in all
material respects as of the date when made and as of the Closing Date as though
made at that time (except for representations and warranties that speak as of a
particular date), and the Shares shall have been approved for listing by the
American Stock Exchange.
(b) Performance by the Company. The Company shall have performed,
--------------------------
satisfied and complied in all material respects with all covenants, agreements
and conditions required by this Agreement to be performed, satisfied or complied
with by the Company at or prior to the Closing.
(c) Trading. From the date hereof to the Closing Date, as to the
-------
Shares to be issued and delivered on the Closing Date, trading in the Company's
Common Stock shall not have been suspended by the SEC or the American Stock
Exchange (except for any suspension of trading of limited duration agreed to
between the Company and the American Stock Exchange solely to permit
dissemination of material information regarding the Company), and trading in
securities generally shall not have been suspended or limited or minimum prices
shall not have been established. Notwithstanding the foregoing sentence, in the
event that at any point on or prior to the first day of the Valuation Period
trading in the Common Stock is suspended by the SEC or the American Stock
Exchange, (i) calculation of the Average Stock Price shall be suspended for such
period of time as trading in the Common Stock is suspended and (ii) the
Valuation Period shall be reset so that such Valuation Period shall begin on the
2nd calendar day following the end of such suspension or the day specified in
Section 1.3(b), whichever is later, and shall end (subject to Sections 1.3(b)
and 1.9) on the 60th trading day thereafter on which quotations for the
Company's Common Stock on the American Stock Exchange are available. In the
event that the Company's Common Stock is delisted from the American Stock
Exchange at any time during the Valuation Period or in the event that trading in
the Common Stock is suspended for a period of more than thirty (30) days
subsequent to the commencement of the Valuation Period, (a) the Valuation Period
will be deemed to have concluded on the date on which the Common Stock was
delisted or such trading was suspended, (b) the Average Stock Price shall be
calculated based on the number of days in such shortened Valuation Period, and
(c) the Investor shall receive any Additional Shares pursuant to Section 1.3(c)
or shall pay any additional purchase price pursuant to Section 1.3(d) within
five (5) business days of the conclusion of the shortened Valuation Period.
References herein to the American Stock Exchange shall be interpreted to mean
the principal national securities exchange on which the Common Stock is listed,
so long as such listing remains in effect.
(d) No Injunction. No statute, rule, regulation, executive order,
-------------
decree, ruling or injunction shall have been enacted, entered, promulgated or
endorsed by any court or governmental authority of competent jurisdiction which
prohibits the consummation of any of the transactions contemplated by this
Agreement.
15
(e) Opinion of Counsel, Etc. At the Closing the Investor shall have
-----------------------
received an opinion of counsel to the Company of the kind customary in
transactions such as those contemplated hereby, in form and substance reasonably
satisfactory to the Investor and their counsel, and such other certificates and
documents as the Investor or their counsel shall reasonably require incident to
the Closing.
ARTICLE V
Legend on Stock
---------------
Each certificate representing the Shares issued pursuant to Section 1.3
shall be stamped or otherwise imprinted with a legend substantially in the
following form:
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 APPLICABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE ACT.
16
ARTICLE VI
Termination
-----------
Section 6.1 Termination by Mutual Consent. This Agreement may be
-----------------------------
terminated at any time prior to the Closing by the mutual written consent of the
Company and the Investor.
Section 6.2 Other Termination. This Agreement may be terminated by action
-----------------
of the Board of Directors or other governing body of the Investor or the Company
at any time if the Closing shall not have been consummated by the fifth business
day following the date of this Agreement.
Section 6.3 Automatic Termination. This Agreement shall automatically
---------------------
terminate without any further action of either party hereto if the Closing shall
not have occurred by the tenth business day following the date of this
Agreement.
ARTICLE VII
Miscellaneous
-------------
Section 7.1 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 incident to the negotiation, preparation,
execution, delivery and performance of this Agreement, provided that the Company
shall pay, at the Closing, all attorneys' fees and expenses reasonably incurred
by the Investor and Cappello Capital Corp., up to a maximum of $25,000, in
connection with the preparation, negotiation, execution and delivery of this
Agreement and the transactions contemplated hereunder. The Company shall pay
all stamp and other taxes and duties levied in connection with the issuance of
the Shares or the Additional Shares pursuant hereto.
Section 7.2 Specific Enforcement, Consent to Jurisdiction.
---------------------------------------------
(a) The Company and the Investor acknowledge and agree that
irreparable damage would occur in the event that any of the provisions of this
Agreement were not performed in accordance with their specific terms or were
otherwise breached. It is accordingly agreed that the parties shall be entitled
to an injunction or injunctions to prevent or cure breaches of the provisions of
this Agreement and to enforce specifically the terms and provisions hereof, this
being in addition to any other remedy to which either of them may be entitled by
law or equity.
(b) Each of the Company and the Investor (i) hereby irrevocably
submits to the exclusive jurisdiction of the United States District Court and
other courts of the United States sitting in California for the purposes of any
suit, action or proceeding arising out of or relating to this Agreement and (ii)
hereby waives, and agrees not to assert in any such suit, action or
17
proceeding, any claim that it is not personally subject to the jurisdiction of
such court, that the suit, action or proceeding is brought in an inconvenient
forum or that the venue of the suit, action or proceeding is improper. Each of
the Company and the Investor consents to process being served in any such suit,
action or proceeding by mailing a copy thereof to such party at the address in
effect for notices to it under this Agreement and agrees that such service shall
constitute good and sufficient service of process and notice thereof. Nothing
in this paragraph shall affect or limit any right to serve process in any other
manner permitted by law.
Section 7.3 Entire Agreement: Amendment. This Agreement contains the
---------------------------
entire understanding of the parties with respect to the matters covered hereby
and thereby and, except as specifically set forth herein, neither the Company
nor the Investor makes any representation, warranty, covenant or undertaking
with respect to such matters. No provision of this Agreement may be waived or
amended other than by a written instrument signed by the party against whom
enforcement of any such amendment or waiver is sought.
Section 7.4 Notices. Any notice or other communication required or
-------
permitted to be given hereunder shall be in writing and shall be effective (a)
upon hand delivery or delivery by telex (with correct answer back received),
telecopy or facsimile at the address or number designated below (if delivered on
a business day during normal business hours where such notice is to be
received), or the first business day following such delivery (if delivered other
than on a business day during normal business hours where such notice is to be
received) or (b) on the second business day following the date of mailing by
express courier service, fully prepaid, addressed to such address, or upon
actual receipt of such mailing, whichever shall first occur. The addresses for
such communications shall be:
to the Company: NTN Communications, Inc.
Patrick Downs, Chairman and CEO
5966 La Place Court
Carlsbad, California 92008
with copies to: Troy & Gould Professional
Corporation
1801 Century Park East, 16th Floor
Los Angeles, California 90067
Attention: William D. Gould
to the Investor: At the address set forth at the foot of
this Agreement, with copies to
Investor's counsel as set forth at the
foot of this Agreement or as may be
specified in writing by Investor
18
with copies to: Gerard K. Cappello
Cappello Capital Corp.
1299 Ocean Avenue, Suite 306
Santa Monica, California 90401
Any party hereto may from time to time change its address for notices under this
Section 7.4 by giving at least 10 days' written notice of such changed address
to the other party hereto.
Section 7.5 Waivers. No waiver by either party of any default with
-------
respect to any provision, condition or requirement of this Agreement shall be
deemed to be a continuing waiver in the future or a waiver of any other
provision, condition or requirement hereof, nor shall any delay or omission of
either party to exercise any right hereunder in any manner impair the exercise
of any such right accruing to it thereafter.
Section 7.6 Headings. The headings herein are for convenience only, do
--------
not constitute a part of this Agreement and shall not be deemed to limit or
affect any of the provisions hereof.
Section 7.7 Successors and Assigns. This Agreement shall be binding upon
----------------------
and inure to the benefit of the parties and their successors and assigns. The
parties hereto may amend this Agreement without notice to or the consent of any
third party. Neither the Company nor the Investor shall assign this Agreement
or any rights or obligations hereunder without the prior written consent of the
other (which consent may be withheld for any reason in the sole discretion of
the party from whom consent is sought); provided, however, that the Company may
assign its rights and obligations hereunder to any acquirer of substantially all
of the assets or a controlling equity interest of the Company. The assignment
by a party of this Agreement or any rights hereunder shall not affect the
obligations of such party under this Agreement.
Section 7.8 No Third Party Beneficiaries. This Agreement is intended for
----------------------------
the benefit of the parties hereto and their respective permitted successors and
assigns and is not for the benefit of, nor may any provision hereof be enforced
by, any other person.
Section 7.9 Governing Law. This Agreement shall be governed by and
-------------
construed and enforced in accordance with the internal laws of Delaware without
regard to the principles of conflict of laws.
Section 7.10 Survival. The representations and warranties of the Company
--------
and the Investor contained in Article II and the agreements and covenants set
forth in Articles I and III shall survive the Closing.
Section 7.11 Execution. This Agreement may be executed in two or more
---------
counterparts, all of which shall be considered one and the same agreement and
shall become effective when counterparts have been signed by each party and
delivered to the other party, it being understood that both parties need not
sign the same counterpart. In
19
the event any signature is delivered by facsimile transmission, the party using
such means of delivery shall cause four additional executed signature pages to
be physically delivered to the other party within five days of the execution and
delivery hereof
Section 7.12 Publicity. The Company and the Investor shall consult and
---------
cooperate with each other in issuing any press releases or otherwise making
public statements with respect to the transactions contemplated hereby, provided
the foregoing shall not interfere with the legal obligations of either party
with respect to public disclosure; and provided further, that neither the
Company nor the Investor shall be required to consult with the other if any such
press release or public statement does not specifically name the other.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the date hereof
NTN COMMUNICATIONS, INC.
By: /s/ Patrick J. Downs
-------------------------------------------------------
Name: Patrick J. Downs
Its: Chairman/CEO
THE INVESTOR: Offense Group Associates, L.P.
By: /s/ Jerry R. Welsh
-------------------------------------------------------
Name: Jerry R. Welsh
Its: Senior Vice President
Investor's address:
1800 Avenue of the Stars
Suite 1425
Los Angeles, CA 90067
Att'n: Richard J. Farber
Name and address of Investor's counsel:
Milbank, Tweed, Hadley & McCloy
601 South Figueroa Street
Thirtieth Floor
Los Angeles, California 90017
Att'n: Neil J. Wertlieb, Esq.
20
the event any signature is delivered by facsimile transmission, the party using
such means of delivery shall cause four additional executed signature pages to
be physically delivered to the other party within five days of the execution and
delivery hereof
Section 7.13 Publicity. The Company and the Investor shall consult and
---------
cooperate with each other in issuing any press releases or otherwise making
public statements with respect to the transactions contemplated hereby, provided
the foregoing shall not interfere with the legal obligations of either party
with respect to public disclosure; and provided further, that neither the
Company nor the Investor shall be required to consult with the other if any such
press release or public statement does not specifically name the other.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the date hereof
NTN COMMUNICATIONS, INC.
By: /s/ Patrick J. Downs
-------------------------------------------------------
Name: Patrick J. Downs
Its: Chairman/CEO
THE INVESTOR: Arbco Associates, L.P.
By: /s/ Jerry R. Welsh
-------------------------------------------------------
Name: Jerry R. Welsh
Its: Senior Vice President
Investor's address:
1800 Avenue of the Stars
Suite 1425
Los Angeles, CA 90067
Att'n: Richard J. Farber
Name and address of Investor's counsel:
Milbank, Tweed, Hadley & McCloy
601 South Figueroa Street
Thirtieth Floor
Los Angeles, California 90017
Att'n: Neil J. Wertlieb, Esq.
20
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the date hereof
NTN COMMUNICATIONS, INC.
By: /s/ Patrick J. Downs
-------------------------------------------------------
Name: Patrick J. Downs
Its: Chairman/CEO
THE INVESTOR: Kayne, Anderson Non-Traditional
Investments, L.P.
By: /s/ Jerry R. Welsh
-------------------------------------------------------
Name: Jerry R. Welsh
Its: Senior Vice President
Investor's address:
1800 Avenue of the Stars
Suite 1425
Los Angeles, CA 90067
Att'n: Richard J. Farber
Name and address of Investor's counsel:
Milbank, Tweed, Hadley & McCloy
601 South Figueroa Street
Thirtieth Floor
Los Angeles, California 90017
Att'n: Neil J. Wertlieb, Esq.
20
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the date hereof
NTN COMMUNICATIONS, INC.
By: /s/ Patrick J. Downs
-------------------------------------------------------
Name: Patrick J. Downs
Its: Chairman/CEO
THE INVESTOR: Banque Scandinave en Suisse
By: /s/ Jacques Pitschi
-------------------------------------------------------
Name: Jacques Pitschi
Its:
Investor's address:
Cours de Rive, 11
1211 Geneve 3
Switzerland
20
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the date hereof
NTN COMMUNICATIONS, INC.
By: /s/ Patrick J. Downs
-------------------------------------------------------
Name: Patrick J. Downs
Its: Chairman/CEO
THE INVESTOR: The Gifford Fund
By: /s/ Dawn Davies
-------------------------------------------------------
Name: Dawn Davies
Its: Vice President
Investor's address: P. O. Box N9204
Charlotte House, Charlotte Street
Nassau, Bahamas
20
the event any signature is delivered by facsimile transmission, the party using
such means of delivery shall cause four additional executed signature pages to
be physically delivered to the other party within five days of the execution and
delivery hereof
Section 7.14 Publicity. The Company and the Investor shall consult and
---------
cooperate with each other in issuing any press releases or otherwise making
public statements with respect to the transactions contemplated hereby, provided
the foregoing shall not interfere with the legal obligations of either party
with respect to public disclosure; and provided further, that neither the
Company nor the Investor shall be required to consult with the other if any such
press release or public statement does not specifically name the other.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the date hereof
NTN COMMUNICATIONS, INC.
By: /s/ Patrick J. Downs
-------------------------------------------------------
Name: Patrick J. Downs
Its: Chairman/CEO
THE INVESTOR: Pictet et Cie.
By:
______________________________________________________
Name:
Its:
Investor's address:
100 Rue de Rhone
20
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the date hereof
NTN COMMUNICATIONS, INC.
By: /s/ Patrick J. Downs
-------------------------------------------------------
Name: Patrick J. Downs
Its: Chairman/CEO
THE INVESTOR: Societe Financiere Mirelis S.A.
By: /s/ Gerard Simonet and Albert Lawi
------------------------------------------------------
Name: Gerard Simonet Albert Lawi
Its: Vice President Director
Investor's address: Rue de la Corraterie 12
1211 Geneve 3
Switzerland
20
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the date hereof
NTN COMMUNICATIONS, INC.
By: /s/ Patrick J. Downs
-------------------------------------------------------
Name: Patrick J. Downs
Its: Chairman/CEO
THE INVESTOR: Hudson, Inc. (Panama)
By: /s/ Rolain Levy
-------------------------------------------------------
Name: Roland Levy
Its: Director/Attorney in Facts
Investor's address: Avenue C. F. Ramuz, 27
1009 Pully, Vaud
Switzerland
20
the event any signature is delivered by facsimile transmission, the party using
such means of delivery shall cause four additional executed signature pages to
be physically delivered to the other party within five days of the execution and
delivery hereof
Section 7.15 Publicity. The Company and the Investor shall consult and
---------
cooperate with each other in issuing any press releases or otherwise making
public statements with respect to the transactions contemplated hereby, provided
the foregoing shall not interfere with the legal obligations of either party
with respect to public disclosure; and provided further, that neither the
Company nor the Investor shall be required to consult with the other if any such
press release or public statement does not specifically name the other.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the date hereof
NTN COMMUNICATIONS, INC.
By: /s/ Patrick J. Downs
-------------------------------------------------------
Name: Patrick J. Downs
Its: Chairman/CEO
THE INVESTOR: Carousel Investments, Inc.
By: /s/ Peter Luggan, Jr.
------------------------------------------------------
Name: Peter Luggan, Jr.
Its: Director
Investor's address: Carousel Investments, Inc.
c/o FIZ AG
P. O. Box 4258
6304 Zug
Switzerland
20