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EXHIBIT 4.5
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED. SUCH SECURITIES MAY NOT BE SOLD OR
TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN EXEMPTION THEREFROM UNDER
SAID ACT.
Warrant to Purchase
WE-015 25,000 Shares
NTN COMMUNICATIONS INC.
(Incorporated under the laws of the State of Delaware)
WARRANT CERTIFICATE FOR THE PURCHASE OF SHARES OF
THE $.005 PAR VALUE COMMON STOCK OF NTN COMMUNICATIONS INC.
EXERCISABLE ONLY AFTER JULY 1, 2000 AND VOID AFTER JUNE 30, 2002.
Warrant Price: $2.375 (Two Dollars and Thirty-Seven and One-Half Cents) per
share.
1. THIS IS TO CERTIFY that, for value received, Spencon Integrated
Solutions, LLC (the "Holder"), is entitled to purchase, subject to the terms and
conditions hereinafter set forth, up to 25,000 shares of the $.005 par value
common stock ("Common Stock") of NTN Communications Inc. (the "Company"), and to
receive certificate(s) for the Common Stock so purchased as follows: This
Warrant shall become exercisable in full on and after July 1, 2000 only in the
event the Company determines, in its sole discretion, that BUZZTIME.com has
generated, on or before July 1, 2000 (the "Exercise Date"), a minimum of
$500,000 in advertising and related revenue, as set forth paragraph 4(b) of the
Engagement Agreement, dated November 10, 1999, by and between the Company and
the Holder. In such event, the Company shall so notify the Holder in writing and
this Warrant shall therefrom be and become exercisable at anytime and from time
to time from and after the Exercise Date and on or before June 30, 2002. If the
Company shall not have so notified the Holder on or before July 1, 2000, this
Warrant shall be null and void and of no further force and effect. This Warrant
may be exercised, as to shares as to which it has become exercisable, in whole
or in part. Such exercise shall be accomplished by tender to the Company of the
purchase price set forth above as the warrant price (the "Warrant Price"),
either in cash or by certified check or bank cashier's check, payable to the
order of the Company, together with presentation and surrender to the Company of
this Warrant with an executed subscription in substantially the form attached
hereto as Exhibit A. Fractional shares of the Company's Common Stock will not be
issued upon the exercise of this Warrant.
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2. The Company agrees at all times to reserve and hold available out of
the aggregate of its authorized but unissued Common Stock the number of shares
of its Common Stock issuable upon the exercise of this and all other Warrants of
like tenor then outstanding. The Company further covenants and agrees that all
shares of Common Stock that may be delivered upon the exercise of this Warrant
will, upon delivery, be fully paid and nonassessable and free from all taxes,
liens and charges with respect to the purchase thereof hereunder.
This Warrant and the Common Stock issuable upon the exercise hereof may
not be sold, transferred, pledged or hypothecated unless the Company shall have
been supplied with evidence reasonably satisfactory to it that such transfer is
not in violation of the Securities Act of 1933, as amended (the "Act") or any
applicable state laws. Subject to the satisfaction of the aforesaid condition,
this Warrant shall be transferable by the Holder.
If this Warrant is transferred, in whole or in part, upon surrender of
this Warrant to the Company, the Company shall deliver to each transferee a
Warrant evidencing the rights of such transferee to purchase the number of
shares of Common Stock that such transferee is entitled to purchase pursuant to
such transfer.
The Company may place a legend on this Warrant or any replacement
Warrant and on each certificate representing shares issuable upon exercise of
this Warrant as to which the Company has not been supplied evidence that the
transfer of such security would not be in violation of the Act and any
applicable state laws.
3. This Warrant does not entitle the Holder to any voting rights or
other rights as a stockholder of the Company, nor to any other rights whatsoever
except the rights herein set forth, and no dividend shall be payable or accrue
by reason of this Warrant or the interest represented hereby, or the shares
purchasable hereunder, until or unless, and except to the extent that, this
Warrant is exercised.
This Warrant is exchangeable upon its surrender by the Holder to the
Company for new Warrants of like tenor and date representing in the aggregate
the right to purchase the number of shares purchasable hereunder, each of such
new Warrants to represent the right to purchase such number of shares as may be
designated by the Holder at the time of such surrender.
The Company shall comply with the reporting requirements of Sections 13
and 15(d) of the Securities Exchange Act of 1934 (the "Exchange Act") for so
long as and to the extent that such requirements apply to the Company.
4. The Warrant Price and the number of shares purchasable upon the
exercise of this Warrant are subject to adjustment from time to time upon the
occurrence of any of the events specified in this Section 4.
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(a) In case the Company shall (i) pay a dividend in shares of
Common Stock or make a distribution in shares of Common Stock, (ii) subdivide
its outstanding shares of Common Stock, (iii) combine its outstanding shares of
Common Stock into a smaller number of shares of Common Stock, or (iv) issue by
reclassification of its shares of Common Stock other securities of the Company,
the number of shares of Common Stock purchasable upon exercise of this Warrant
immediately prior thereto shall be adjusted so that the Holder of this Warrant
shall be entitled to receive the kind and number of shares of Common Stock or
other securities of the Company that he would have owned or have been entitled
to receive after the happening of any of the events described above, had such
Warrant been exercised immediately prior to the happening of such event or any
record date with respect thereto. An adjustment made pursuant to this paragraph
(a) shall become effective immediately after the effective date of such event
retroactive to the record date, if any, for such event.
(b) Whenever the number of shares of Common Stock purchasable
upon the exercise of this Warrant is adjusted, as herein provided, the Warrant
Price shall be adjusted by multiplying such Warrant Price immediately prior to
such adjustment by a fraction, of which the numerator shall be the number of
shares of Common Stock purchasable upon the exercise of this Warrant immediately
prior to such adjustment, and of which the denominator shall be the number of
shares of Common Stock so purchasable immediately thereafter.
(c) For the purpose of this Section 4, the term shares of
Common Stock shall mean (i) the class of stock designated as the Common Stock of
the Company at the date of this Warrant, or (ii) any other class of stock
resulting from successive changes or reclassifications of such shares consisting
solely of change in par value, or from par value to no par value, or from no par
value to par value.
(d) If during the Warrant Period the Company consolidates with
or merges into another corporation or transfers all or substantially all of its
assets, the Holder shall thereafter be entitled upon exercise hereof to
purchase, with respect to each share of Common Stock purchasable hereunder
immediately prior to the date upon which such consolidation or merger becomes
effective, the securities or property to which a holder of shares of Common
Stock is entitled upon such consolidation or merger, without any change in, or
payment in addition to the Warrant Price in effect immediately prior to such
merger or consolidation, and the Company shall take such steps in connection
with such consolidation or merger as may be necessary to ensure that all of the
provisions of this Warrant shall thereafter be applicable, as nearly as
reasonably may be, in relation to any securities or property thereafter
deliverable upon the exercise of this Warrant. The Company shall not effect any
such consolidation, merger or asset transfer unless prior to the consummation
thereof the successor corporation resulting therefrom shall assume by written
agreement executed and mailed to the registered Holder at his address shown on
the books and records of the Company, the obligation to deliver to such Holder
any such securities or property as in accordance with the foregoing provisions
such Holder shall be entitled to purchase.
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(e) Upon the happening of any event requiring an adjustment of
the Warrant Price, the Company shall forthwith give written notice thereof to
the registered Holder of this Warrant, stating the adjusted Warrant Price and
the adjusted number of shares of Common Stock or other securities or property
purchasable upon the exercise hereof resulting from such event and setting forth
in reasonable detail the method of calculation and the facts upon which such
calculation is based. The Board of Directors of the Company shall determine the
adjusted Warrant Price and the securities or property purchasable upon exercise.
If any voluntary or involuntary dissolution, liquidation, or winding up of the
Company is proposed, the Company shall give at least 20 days prior written
notice of such proposal to the registered Holder hereof stating the date on
which such event is to take place and the date (which shall be at least 20 days
after giving of such notice) as of which the holders of shares of Common Stock
of record shall be entitled to exchange their Common Stock for securities or
other property deliverable upon such dissolution, liquidation or winding up.
This Warrant and all rights hereunder shall terminate as of the date on which
such dissolution, liquidation, or winding up takes place. The notices pursuant
to this paragraph shall be given by first class mail, postage prepaid, addressed
to the registered Holder of this Warrant at his address appearing in the records
of the Company.
(f) Irrespective of any adjustments pursuant to this Section 4
to the Warrant Price or to the number of shares or other securities or other
property obtainable upon exercise of this Warrant, this Warrant may continue to
state the Warrant Price and the number of shares obtainable upon exercise, as
the same price and number of shares stated herein.
5. Notwithstanding anything to the contrary herein the Exercise Dates
shall automatically be accelerated immediately upon a Change in Control Event. A
"Change in Control Event" shall mean:
(1) The acquisition by any individual entity or group (within the
meaning of Section 13(d)(3) or 14(d)(2) of the Exchange Act (a "Person")) of
beneficial ownership of 50% or more of the then outstanding voting securities of
the Corporation entitled to vote generally in the election of directors (the
"Outstanding Voting Securities"); provided, however, that the following
acquisitions shall not constitute a Change in Control Event: (A) any acquisition
by the Corporation or (B) any acquisition by any employee benefit plan (or
related trust) sponsored or maintained by the Corporation or any corporation
controlled by the Corporation; or
(2) Individuals who, as of the date hereof, constitute the Board (the
"Incumbent Board") cease for any reason to constitute at least a majority of the
Board; provided, however, that any individual who becomes a director subsequent
to the date hereof whose election, or nomination for election by the
Corporation's shareholders, was approved by a vote of at least a majority of the
directors then comprising the Incumbent Board shall be considered as though such
individual were a member of the Incumbent Board; but excluding, for this
purpose, any such individual whose initial assumption of office occurs as a
result of either an actual or threatened election contest (as such terms are
used in Rule 14a-11
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of Regulation 14A promulgated under the Exchange Act) or other actual or
threatened solicitation of proxies or consents by or on behalf of a Person other
than the Board; or
(3) Approval by the shareholders of the Corporation of a
reorganization, merger or consolidation (a "transaction"), unless, following
such transaction in each case, more than 50% of, respectively, the then
outstanding shares of common stock of the corporation resulting from such
transaction and the combined voting power of the then outstanding voting
securities of such corporation entitled to vote generally in the election of
directors is then beneficially owned, directly or indirectly, by all or
substantially all of the individuals and entitles who were the beneficial
owners, respectively, of the outstanding Common stock and outstanding voting
securities of the Corporation immediately prior to such transaction; or
(4) Approval by the shareholders of the Corporation of (A) a complete
liquidation or dissolution of the Corporation or (B) the sale or other
disposition of all or substantially all of the assets of the Corporation, unless
such assets are sold to a corporation and following such sale or other
disposition, the condition described in paragraph (3) above is satisfied. IN
WITNESS WHEREOF, the Company has caused this Warrant to be executed by its duly
authorized officers, and the corporate seal hereunto affixed.
DATED: November 10, 1999 NTN COMMUNICATIONS INC.
By:
/s/ Kendra Berger
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Kendra Berger
Chief Financial Officer
ATTEST:
[seal] By: /s/ Kathy Miles
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Kathy Miles
Assistant Secretary
SUBSCRIPTION FORM
(To be Executed by the Registered Holder to Exercise the Rights To Purchase
Common Stock Evidenced by the Within Warrant)
The undersigned hereby irrevocably subscribes for ________ shares (the
"Stock") of the Common Stock of NTN COMMUNICATIONS INC. (the "Company") pursuant
to and in accordance with the terms and conditions of the attached Warrant and
hereby makes payment of $___________ therefor, and requests that a certificate
for such shares be issued in the name of the undersigned and be delivered to the
undersigned at the address stated
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below. If such number of shares is not all of the shares purchasable pursuant to
the attached Warrant, the undersigned requests that a new Warrant of like tenor
for the balance of the remaining shares purchasable thereunder be delivered to
the undersigned at the address stated below.
In connection with the issuance of the Stock, the undersigned hereby
represents to the Company that he is acquiring the Stock for his own account for
investment and not with a view to, or for resale in connection with, a
distribution of the shares within the meaning of the Securities Act of 1933, as
amended (the "Act"). The undersigned also understands that the Company has not
registered the Stock under the Act, in reliance upon the private offering
exemptions contained in Section 4(2) of the Act, and that such reliance is based
in part upon the undersigned's representations.
The undersigned understands that because the Stock has not been
registered under the Act, the undersigned must hold such Stock indefinitely
unless such Stock is subsequently registered and qualified under such statutes
or is exempt from such registration and qualification. Before the undersigned
makes any transfer or disposition of any shares of the Stock, the undersigned
agrees to give to the Company written notice of its intention to do so and to
describe briefly the manner of such proposed transfer or disposition. The
undersigned shall make no such transfer or disposition unless (a) such transfer
or disposition can be made without registration under the Act and qualification
under the Law by reason of specific exemptions from such registration and such
qualification, or (b) a registration statement has been filed pursuant to the
Act and has been declared effective with respect to such disposition.
The undersigned agrees that each certificate representing the Stock
delivered to him shall bear substantially the following legend:
"The shares represented by this certificate have not been
registered under the Securities Act of 1933, as amended. The shares may
not be sold or transferred in the absence of such registration or an
exemption therefrom under said Act."
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The undersigned further agrees that the Company may place stop orders
on the certificates evidencing the Stock with the transfer agent, if any, to the
same effect as the above legend. The legend and stop transfer notice referred to
above shall be removed only upon the undersigned's furnishing to the Company an
opinion of counsel (reasonably satisfactory to the Company) to the effect that
such legend may be removed.
Date: SPENCON INTEGRATED SOLUTIONS, LLC
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By:
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Address:
7525 Wingshadow Drive
Scottsdale, AZ 85255
Social Security Number:
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ASSIGNMENT
(To be Executed by the Registered Holder to Effect Transfer of the Within
Warrant)
For Value Received _______________ hereby sells, assigns and transfers to
____________________ this warrant and the rights represented hereby to purchase
Common Stock in accordance with the terms and conditions hereof, and does hereby
irrevocably constitute and appoint _________________ ______________________ as
attorney to transfer this warrant on the books of the Company with full power of
substitution.
Date: Signed:
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Please print or typewrite name Please insert Social Security or other
and address of assignee: Tax Identification Number of Assignee:
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Zip
THE SIGNATURE(S) TO THIS ASSIGNMENT MUST CORRESPOND WITH THE NAME AS WRITTEN
UPON THE FACE OF THE WARRANT IN EVERY PARTICULAR, WITHOUT ALTERNATION OR
ENLARGEMENT, OR ANY CHANGE WHATSOEVER, AND SUCH SIGNATURE(S) MUST BE GUARANTEED
IN ACCORDANCE WITH PRACTICES PREVAILING IN THE SECURITIES INDUSTRY AT THE TIME
SUCH SIGNATURE IS PRESENTED TO THE COMPANY.