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EXHIBIT 10.3
BUZZTIME ENTERTAINMENT, INC.
SERIES A PREFERRED
STOCK PURCHASE AGREEMENT
JUNE 8, 2001
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TABLE OF CONTENTS
Page
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ARTICLE 1 Purchase and Sale of Stock.....................................................................1
1.1 Sale and Issuance of Series A Stock and Warrants...............................................1
1.2 Closing........................................................................................1
ARTICLE 2 Representations, Warranties and Covenants of the Company and NTN...............................2
2.1 Organization, Good Standing and Qualification..................................................2
2.2 Capitalization and Voting Rights...............................................................2
2.2.1 Preferred Stock.......................................................................2
2.2.2 Common Stock..........................................................................2
2.2.3 Other Capitalization..................................................................2
2.3 Subsidiaries...................................................................................2
2.4 Authorization..................................................................................3
2.5 Valid Issuance of Preferred Stock and Conversion Shares........................................3
2.6 Litigation.....................................................................................3
2.7 Patents and Trademarks.........................................................................4
2.8 Compliance with Other Instruments..............................................................4
2.9 Agreements; Action.............................................................................4
2.9.1 Affiliate Agreements..................................................................4
2.9.2 Material Agreements...................................................................4
2.9.3 Indebtedness..........................................................................5
2.9.4 Liabilities...........................................................................5
2.10 Permits........................................................................................5
2.11 Registration Rights............................................................................5
2.12 Employees......................................................................................5
2.13 Offering.......................................................................................6
2.14 Title to Property and Assets...................................................................6
2.15 Taxes..........................................................................................6
2.16 Full Disclosure................................................................................6
2.17 Financial Statements...........................................................................7
2.18 Corporate Documents............................................................................7
ARTICLE 3 Representations, Warranties and Covenants of the Investors.....................................7
3.1 Authorization..................................................................................7
3.2 Purchase Entirely for Own Account..............................................................7
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3.3 Disclosure of Information......................................................................7
3.4 Investor Can Protect Its Interest and Bear Economic Risk.......................................8
3.5 Accredited Investor............................................................................8
3.6 Restricted Securities..........................................................................8
3.7 Further Limitations on Disposition.............................................................8
3.8 Legends........................................................................................8
3.9 Residence......................................................................................9
3.10 Use of Proceeds................................................................................9
ARTICLE 4 Conditions to Investors' Obligations at Closing................................................9
4.1 Representations and Warranties.................................................................9
4.2 Filing of Certificate of Designation...........................................................9
4.3 Proceedings and Documents......................................................................9
4.4 Performance....................................................................................9
4.5 Consents.......................................................................................9
4.6 Execution......................................................................................9
ARTICLE 5 Conditions to the Company's Obligations at Closing............................................10
5.1 Representations and Warranties................................................................10
5.2 Payment of Purchase Price.....................................................................10
5.3 Performance...................................................................................10
5.4 Consents......................................................................................10
5.5 Execution.....................................................................................10
ARTICLE 6 Miscellaneous.................................................................................10
6.1 Survival of Warranties........................................................................10
6.2 Successors and Assigns........................................................................10
6.3 Governing Law.................................................................................10
6.4 Counterparts..................................................................................10
6.5 Titles and Subtitles..........................................................................11
6.6 Notices.......................................................................................11
6.7 Amendments and Waivers........................................................................11
6.8 Severability..................................................................................11
6.9 Entire Agreement..............................................................................11
6.10 Further Assurances............................................................................11
6.11 No Presumption................................................................................11
6.12 Third Party Beneficiaries.....................................................................12
6.13 Knowledge.....................................................................................12
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SCHEDULES
Schedule 1: Schedule of Exceptions
EXHIBITS
Exhibit A: Certificate of Designation
Exhibit B: Investors' Rights Agreement
Exhibit C: Exchange Agreement
Exhibit D: Warrant Agreement
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SERIES A PREFERRED STOCK PURCHASE AGREEMENT
THIS SERIES A PREFERRED STOCK PURCHASE AGREEMENT (this "AGREEMENT") is
made as of June 8, 2001, by and among BUZZTIME ENTERTAINMENT, INC., a Delaware
corporation (the "COMPANY"), NTN COMMUNICATIONS, INC., a Delaware corporation
("NTN"), and SCIENTIFIC-ATLANTA STRATEGIC INVESTMENTS, L.L.C., a Delaware
limited liability company (the "INVESTOR") and an indirect wholly-owned
subsidiary of Scientific-Atlanta, Inc.
RECITALS
A. The Company has authorized the issuance and sale of an aggregate of up
to 636,943 shares of its Series A Preferred Stock (the "SERIES A
STOCK"). The Company shall adopt and file with the Secretary of State
of the State of Delaware on or before the Closing (as defined below)
the Certificate of Designation of Series A Preferred Stock in the form
attached hereto as Exhibit A (the "CERTIFICATE OF DESIGNATION").
B. The Investor desires to purchase the Series A Stock on the terms and
conditions set forth herein.
C. The Company desires to issue and sell the Series A Stock to the
Investor on the terms and conditions set forth in this Agreement, that
certain Investors' Rights Agreement dated as of the date hereof, by and
between the Company and the Investor in the form of which is attached
hereto as Exhibit B (the "INVESTORS' RIGHTS AGREEMENT"), and that
certain Right of First Refusal and Exchange Agreement dated as of the
date hereof, by and among the Company, the Investor and NTN, the form
of which is attached hereto as Exhibit C (the "EXCHANGE AGREEMENT").
D. The Company also desires to issue and sell to the Investor warrants to
purchase up to 159,236 shares of Series A Stock (the "WARRANTS")
pursuant to that certain Warrant Agreement, dated as of the date
hereof, by and between the Company and Investor in the form attached
hereto as Exhibit D (the "WARRANT Agreement"). The Investors' Rights
Agreement, the Exchange Agreement and the Warrant Agreement are
collectively referred to herein as the "RELATED AGREEMENTS."
NOW, THEREFORE, in consideration of the foregoing recitals and the
mutual promises hereinafter set forth, the parties hereto agree as follows:
ARTICLE 1
PURCHASE AND SALE OF STOCK
1.1 SALE AND ISSUANCE OF SERIES A STOCK AND WARRANTS. Subject to the terms
and conditions of this Agreement, the Investor agrees to purchase at
the Closing, and the Company agrees to sell and issue to the Investor
at the Closing, 636,943 shares of Series A Stock for the purchase price
of $1.57 per share and Warrants for the purchase of 159,236 shares of
Series A Stock.
1.2 CLOSING. The purchase and sale of the Series A Stock shall take place
at the offices of O'Melveny & Myers LLP, 400 South Hope Street, Los
Angeles, California, at 10:00 A.M. California time, on the date hereof,
or at such other time and place as the Company and the Investor
mutually agree upon orally or in writing (which time and place are
designated as the "CLOSING"). At the Closing, the Company shall deliver
to the Investor a stock certificate representing 636,943 shares of
Series A Stock and Warrants for the purchase of 159,236 shares of
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Series A Stock that the Investor is purchasing against payment of the
purchase price of $1 million therefor by check or wire transfer to an
account specified by the Company.
ARTICLE 2
REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE COMPANY AND NTN
The Company and NTN hereby represent, warrant and covenant to the
Investor that, except as set forth on a Schedule of Exceptions attached hereto
as Schedule 1 (the "SCHEDULE OF EXCEPTIONS") or in NTN's SEC Documents (as
defined in Section 2.16):
2.1 ORGANIZATION, GOOD STANDING AND QUALIFICATION. Each of the Company and
NTN is a corporation duly incorporated, validly existing and in good
standing under the laws of the State of Delaware and has all requisite
corporate power and corporate authority to own, lease, license, and
operate its properties and assets and to carry on its business as now
conducted and as proposed to be conducted, to execute and deliver this
Agreement and the Related Agreements, to issue and sell the Series A
Stock and the Warrants, the shares of Series A Stock issuable upon
exercise of the Warrants and the shares of Common Stock issuable upon
conversion of the Series A Stock (the "CONVERSION SHARES") and to
perform its obligations under this Agreement and the Related
Agreements. Each of the Company and NTN is duly qualified to transact
business and is in good standing in each jurisdiction in which the
failure to so qualify would have a material adverse consequence on the
business, properties, assets, results of operations, or condition
(financial or otherwise) of the Company or NTN, each taken as a whole
(a "MATERIAL ADVERSE EFFECT").
2.2 CAPITALIZATION AND VOTING RIGHTS. The authorized capital of the Company
consists of or will consist of prior to the Closing:
2.2.1 PREFERRED STOCK. 2,000,000 shares of preferred stock (the
"PREFERRED STOCK"), 796,179 of which have been designated
Series A Preferred Stock, none of which are issued and
outstanding, and up to all of which may be sold pursuant to
this Agreement. There are no shares of undesignated preferred
stock authorized, issued or outstanding immediately prior to
Closing.
2.2.2 COMMON STOCK. 20,000,000 shares of common stock ("COMMON
STOCK"), of which 9,978,774 shares are issued and outstanding.
The outstanding shares of Common Stock are all owned by NTN,
are all duly and validly authorized and issued, fully paid and
nonassessable, and were issued in accordance with the
registration or qualification provisions of the Securities Act
of 1933, as amended (the "SECURITIES ACT"), and any relevant
state securities laws or pursuant to valid exemptions
therefrom.
2.2.3 OTHER CAPITALIZATION. Except for (A) the conversion privileges
of the Preferred Stock, (B) the rights provided in the Related
Agreements or (C) the Warrants, there are not outstanding any
options, warrants, rights (including conversion or preemptive
rights or rights of first refusal), proxy or shareholder
agreement or agreements for the purchase or acquisition from
the Company of any shares of its capital stock or any stock
appreciation rights or similar rights. The Company has
reserved an additional 120,000 shares of its Common Stock for
purchase upon exercise of options to be granted in the future
under the Company's 2001 Stock Option Plan (the "OPTION
Plan").
2.3 SUBSIDIARIES. The Company does not presently own or control, directly
or indirectly, any interest in any other corporation, association or
business entity. The Company is not a participant in any joint venture,
partnership or similar arrangement.
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2.4 AUTHORIZATION. All corporate action on the part of the Company, NTN and
the officers, directors and stockholders of the Company and NTN
necessary for the authorization, execution and delivery of this
Agreement and the Related Agreements, the performance of all
obligations of the Company and NTN hereunder and thereunder, and the
authorization, issuance (or reservation for issuance), sale and
delivery of the Series A Stock and the Warrants being sold hereunder
and the Conversion Shares and the shares of NTN common stock issuable
upon the exchange of the Series A Stock (the "NTN SHARES") have been
taken or will be taken prior to the Closing, and this Agreement and the
Related Agreements constitute valid and legally binding obligations of
the Company and NTN, enforceable in accordance with their respective
terms, except (i) as limited by applicable bankruptcy, insolvency,
reorganization, moratorium and other laws of general application
affecting enforcement of creditors' rights generally, (ii) as limited
by laws relating to the availability of specific performance,
injunctive relief or other equitable remedies and (iii) to the extent
the indemnification provisions contained in the Investors' Rights
Agreement may be limited by applicable federal or state securities
laws.
2.5 VALID ISSUANCE OF PREFERRED STOCK AND CONVERSION SHARES. The Series A
Stock that is being purchased by the Investor hereunder, when issued,
sold and delivered in accordance with the terms of this Agreement and
the Warrant Agreement for the consideration expressed herein and
therein, will be duly and validly issued, fully paid and nonassessable,
and will be free of liens, charges, encumbrances and restrictions on
transfer other than restrictions on transfer under this Agreement and
the Exchange Agreement and under applicable state and federal
securities laws. The shares of Series A Stock issuable upon exercise of
the Warrants have been duly and validly reserved for issuance. The
Conversion Shares purchased under this Agreement have been duly and
validly reserved for issuance and, upon issuance in accordance with the
terms of the Certificate of Designation, will be duly and validly
issued, fully paid and nonassessable and will be free of liens,
charges, encumbrances and restrictions on transfer other than
restrictions on transfer under this Agreement and the Exchange
Agreement and under applicable state and federal securities laws. NTN
agrees to keep reserved for issuance at all times the number of shares
of NTN common stock it reasonably believes that the Company's shares
held by Investor would be exchangeable into NTN Shares under the
Exchange Agreement; provided, that if such number of NTN Shares exceeds
the number of unissued and unreserved shares of NTN common stock, then
NTN shall reserve for issuance of the NTN Shares the maximum number of
shares available and NTN shall use its best efforts to obtain
stockholder approval, if required, to increase the authorized number of
shares of NTN common stock to a number sufficient to reserve for
issuance all of the NTN Shares. Upon issuance in accordance with the
terms of the Exchange Agreement, the NTN Shares will be duly and
validly issued, fully paid and nonassessable and will be free of liens,
charges, encumbrances and restrictions on transfer other than
restrictions on transfer under this Agreement and the Exchange
Agreement and under applicable state and federal securities laws.
2.6 LITIGATION. There is no action, suit, claim, proceeding or
investigation pending or, to the Company's knowledge, threatened
against the Company or NTN (i) that questions the validity of this
Agreement and the Related Agreements, (ii) that questions the right of
the Company or NTN to enter into any of such agreements or to
consummate the transactions contemplated hereby or thereby or (iii) to
the knowledge of the Company or NTN, against any officer, director or
employee of the Company or NTN in connection with such officer's,
director's or employee's relationship with, or actions taken on behalf
of, the Company or NTN, or (iv) that might result, either individually
or in the aggregate, in any Material Adverse Effect on the Company or
NTN. The foregoing includes, but is not limited to, actions pending or
threatened (or any basis therefor known to the Company or NTN)
involving prior employment of any of the employees of the Company or
NTN, their use in connection with the Company's business of any
information,
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techniques or other know-how allegedly proprietary to any of their
former employers or other third parties, or their obligations under any
agreements with any former employers or other third parties. There is
no action, suit, proceeding or investigation by the Company or NTN
currently pending or that the Company or NTN intends to initiate.
2.7 PATENTS AND TRADEMARKS. Each of the Company and NTN has sufficient
title to and ownership of all patents, trademarks, service marks, trade
names, copyrights, trade secrets, and legally-protectable proprietary
rights and processes necessary for its business as now conducted and as
proposed to be conducted without any conflict with or infringement of
the rights of others. There are no outstanding liens, options, licenses
or agreements of any kind relating to the foregoing, nor are the
Company and NTN bound by or a party to any liens, options, licenses or
agreements of any kind with respect to the patents, trademarks, service
marks, trade names, copyrights, trade secrets, licenses, information,
proprietary rights and processes of any other person or entity. The
Company and NTN have not received any communications alleging that the
Company or NTN has violated or, by conducting its business as proposed,
would violate, the proprietary or intellectual property rights of any
other person or entity nor, to the knowledge of the Company and NTN, is
there any basis therefor. To the knowledge of the Company and NTN,
there is no violation or infringement by a third party of any of the
licenses, trademarks, service marks, trade names, copyrights, trade
secrets or other proprietary rights of the Company and NTN. The
Company, not NTN nor any third party, owns all of the intellectual
property related to the trivia libraries in SECTION 2.7 of the Schedule
of Exceptions.
2.8 COMPLIANCE WITH OTHER INSTRUMENTS. Each of the Company and NTN is not,
and will not by virtue of entering into, delivering, and performing
this Agreement and the Related Agreements and consummating the
transactions contemplated hereunder and thereunder be (with or without
the passage of time or giving of notice), in violation or default (i)
of any provision of its certificate of incorporation or bylaws or any
judgment, decree, order, or writ applicable to the Company or NTN, or
(ii) of any instrument, mortgage, indenture, agreement or contract to
which it is a party or by which it is bound or (iii) to its knowledge,
of any provision of any federal or state statute, rule or regulation
applicable to the Company or NTN, except in the case of (ii) and (iii)
above for any violation or default that is not and will not, either
individually or in the aggregate, have a Material Adverse Effect on the
Company or NTN. To the knowledge of the Company and NTN, the Company
and NTN have avoided every condition, and have not performed any act,
the occurrence of which would result in the loss of any right granted
under any license, distribution agreement or other agreement of the
Company or NTN that, individually or in the aggregate, would have a
Material Adverse Effect on the Company or NTN.
2.9 AGREEMENTS; ACTION.
2.9.1 AFFILIATE AGREEMENTS. Except for agreements explicitly
contemplated hereby or listed on SECTION 2.9.1 of the Schedule
of Exceptions, there are no agreements, understandings or
proposed transactions between the Company and any of its
officers, directors, or affiliates.
2.9.2 MATERIAL AGREEMENTS. Except as set forth on SECTION 2.9.2 of
the Schedule of Exceptions, there are no agreements,
understandings, instruments, contracts, proposed transactions,
judgments, orders, writs or decrees to which the Company is a
party or by which it is bound that may involve (i) obligations
(contingent or otherwise) of or payments to or by the Company
individually in excess of $50,000 over the next twelve months,
in each case which cannot be cancelled by the Company without
penalty on no more than 60 days' notice, (ii) the license of
any patent, copyright, trade secret or other
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proprietary right to or from the Company or (iii) provisions
restricting or affecting the development, manufacture or
distribution of the Company's products or services.
2.9.3 INDEBTEDNESS. Except as set forth on SECTION 2.9.3 of the
Schedule of Exceptions, the Company has not (i) declared or
paid any dividends or authorized or made any distribution upon
or with respect to any class or series of its capital stock,
(ii) incurred any indebtedness for money borrowed or any other
liabilities individually in excess of $50,000 or, in the case
of indebtedness and/or liabilities individually less than
$50,000, in excess of $100,000 in the aggregate, which is
currently outstanding, (iii) made any loans or advances to any
person (that remain outstanding as of the date hereof), other
than advances in the ordinary course of business, or (iv)
sold, exchanged or otherwise disposed of any of its assets or
rights, other than the sale of its inventory in the ordinary
course of business. For purposes of SECTIONS 2.9.2 and 2.9.3,
all indebtedness, liabilities, agreements, understandings,
instruments, contracts and proposed transactions involving the
same person or entity (including persons or entities the
Company has reason to believe are affiliated therewith) shall
be aggregated for the purpose of meeting the individual
minimum dollar amounts of such Sections.
2.9.4 LIABILITIES. Except as set forth on SECTION 2.9.4 of the
Schedule of Exceptions, to the Company's knowledge, the
Company has no material contingent liabilities, except
liabilities incurred in the ordinary course of business that
have not been, either in any individual case or in the
aggregate, materially adverse to the Company.
2.10 PERMITS. The Company and NTN have all franchises, permits,
certificates, licenses and any similar authority necessary for the
conduct of their businesses as now being conducted by them, the lack of
which would have a Material Adverse Effect. The Company and NTN are not
in default in any material respect under any of such franchises,
permits, licenses or other similar authority.
2.11 REGISTRATION RIGHTS. Except as provided in the Investors' Rights
Agreement, the Company has not granted or agreed to grant any
registration rights, to any person or entity.
2.12 EMPLOYEES. Each employee, officer and consultant of the Company and NTN
has executed an inventions and confidentiality agreement. No employee,
officer or consultant of the Company and NTN has excluded work or
inventions made prior to such person's employment or contracting with
the Company or NTN from his or her assignment of inventions pursuant to
such inventions and confidentiality agreement. Each of the Company and
NTN does not believe it is or will be necessary to utilize any
inventions, trade secrets or proprietary information of any such person
made prior to such person's employment or contracting by the Company or
NTN, except for inventions, trade secrets or proprietary information
that have been assigned to the Company or NTN. The Company and NTN are
not aware that any of their employees, officers or consultants are in
violation of the confidentiality agreements, and the Company and NTN
will use reasonable efforts to prevent any violation thereof. Except as
set forth on SECTION 2.12 of the Schedule of Exceptions, neither the
Company nor NTN has any employment agreements with any of its
employees. There is no strike or other labor dispute involving the
Company or NTN pending, or, to the knowledge of the Company or NTN,
threatened, that could have a Material Adverse Effect. Neither NTN nor
the Company has any collective bargaining agreement covering any of its
employees. To the knowledge of the Company and NTN, no employee of the
Company or NTN, nor any consultant with whom the Company or NTN has
contracted, is in material violation of any term of any employment
contract, proprietary information agreement or any other agreement,
license, covenant or commitment of any nature, or any judgment, decree
or order of any court or
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administrative agency, relating to the right of any such individual to
be employed by, or to contract with, the Company or NTN or would
because of the nature of the business to be conducted by the Company or
NTN, and to the knowledge of the Company and NTN, the continued
employment by the Company and NTN of their present employees, the
performance of the Company's and NTN's contracts with its independent
contractors, and the execution and delivery of this Agreement and the
Related Agreements will not result in any such violation. Except as set
forth on SECTION 2.12 of the Schedule of Exceptions, no employee of the
Company or NTN has been granted the right to continued employment by
the Company or NTN or to any material compensation following
termination of employment with the Company or NTN. To the knowledge of
the Company and NTN, no officer, key employee or group of employees
intends to terminate his, her or their employment with the Company or
NTN, and the Company and NTN do not have a present intention to
terminate the employment of any officer, key employee or group of
employees.
2.13 OFFERING. Subject to the accuracy of the Investor's representations in
SECTION 3 and in responses to the Company's inquiries, the offer, sale
and issuance of the Series A Stock and Warrants to be issued in
conformity with the terms of this Agreement and the issuance of the
Conversion Shares constitute transactions exempt from the registration
requirements of Section 5 of the Securities Act, and will have been
registered or qualified (or are exempt from registration and
qualification) under the registration, permit or qualification
requirements of all applicable state securities laws.
2.14 TITLE TO PROPERTY AND ASSETS. Each of the Company and NTN has good and
marketable title to all of its assets free and clear of all liens and
encumbrances, except such liens and encumbrances that arise in the
ordinary course of business and do not materially impair the Company's
or NTN's ownership or use of such property or assets. All leases
pursuant to which the Company or NTN leases real or personal property
are valid and effective in accordance with their respective terms and,
to the knowledge of the Company and NTN, there exists no default or
other occurrence or condition that could result in a default or
termination of any such lease.
2.15 TAXES. Each of the Company and NTN has timely filed, or caused to be
timely filed, all federal, state and local tax returns for income
taxes, franchise taxes, sales taxes, withholding taxes, property taxes
and, to the Company's knowledge, all other taxes of every kind
whatsoever required by law to be filed, except those being contested in
good faith and has set aside on its books provision reasonably adequate
for the payment of all taxes for periods subsequent to the periods to
which such returns apply. There are no unpaid taxes in any material
amount claimed to be due by the taxing authority of any jurisdiction.
All such tax returns are complete and accurate and in accordance with
all legal requirements applicable thereto. To the knowledge of the
Company and NTN there are no additional tax liabilities, deficiencies
or proposed adjustments for any period for which any such returns have
been filed that would have a Material Adverse Effect on either the
Company or NTN. Each of the Company and NTN has made adequate provision
for taxes due or accrued as of the date hereof.
2.16 FULL DISCLOSURE. The Company and NTN have provided the Investor with
all information requested by the Investor in connection with their
decision to purchase the Series A Stock and the Warrants and have made
available all reports, schedules, forms, statements and other documents
required to be filed by NTN with the Securities and Exchange Commission
(the "SEC") pursuant to the reporting requirements of the Securities
Exchange Act of 1934, as amended (the "SEC DOCUMENTS"). Neither this
Agreement, the Related Agreements (and exhibits and schedules thereto),
the SEC Documents or the documents listed in Section 2.16 of the
Schedule of Exceptions, which have been delivered or made available by
the Company and NTN to Investor or its attorneys or agents in
connection with the transactions contemplated hereby or thereby,
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when read together, contain any untrue statement of a material fact
nor, to the Company's knowledge, omit to state a material fact
necessary in order to make the statements contained herein or therein
not misleading.
2.17 FINANCIAL STATEMENTS. The Company has delivered to Investor an
unaudited balance sheet as of March 31, 2001 (the "BALANCE SHEET"). The
Company has also delivered to Investor an unaudited statement of
operations for the three month period ending March 31, 2001 and twelve
month period ending December 31, 2000 (the "STATEMENT OF OPERATIONS"),
an unaudited statement of cash flows for the three month period ending
March 31, 2001 and the twelve month period ending December 31, 2000,
and a financial forecast through May 31, 2002. The Balance Sheet and
the Statement of Operations fairly present the financial condition and
operating results of the Company as of that date and for the period
ended. Except as set forth in the Balance Sheet, the Company has no
material liabilities, contingent or otherwise, and there has not been
any change in the assets, liabilities, financial condition or operating
results of the Company from that reflected in the Balance Sheet, except
for (a) liabilities or changes incurred in the ordinary course of
business that are not, in the aggregate, material to the financial
condition or operating results of the Company and (b) liabilities owed
to counsel for fees and disbursements incurred in connection with the
transactions contemplated by this Agreement.
2.18 CORPORATE DOCUMENTS. The certificates of incorporation and bylaws of
the Company and NTN are in the form made available to the Investor. The
copy of the minute books of the Company made available to Investor
contains minutes of all meetings of directors and shareholders and all
actions by written consent without a meeting by the directors and
shareholders since the date of incorporation and reflects all actions
by directors (and any committees thereof) and shareholders with respect
to all transactions referred to in such minutes accurately in all
material respects. The Company and NTN have provided Investor with all
written agreements between the Company and NTN, and such agreements
have not been amended or modified.
ARTICLE 3
REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE INVESTORS
Each Investor hereby represents, warrants and covenants that:
3.1 AUTHORIZATION. The Investor has full power, authority and capacity to
enter into this Agreement and the Related Agreements to which it is a
party, and each such agreement constitutes its valid and legally
binding obligation, enforceable against such Investor in accordance
with its terms.
3.2 PURCHASE ENTIRELY FOR OWN ACCOUNT. The Series A Stock and the Warrants
and the Conversion Shares (collectively, the "SECURITIES") to be
received by Investor will be acquired for investment for Investor's own
account, not as a nominee or agent, and not with a view to the resale
or distribution of any part thereof, and that Investor has no present
intention of selling, granting any participation in or otherwise
distributing the same in violation of any applicable federal or any
applicable state securities laws. The Investor does not have any
contract, undertaking, agreement or arrangement with any person to
sell, transfer or grant participations to such party or to any third
party with respect to any of the Securities. Investor has not seen or
received any advertisement or general solicitation with respect to the
Securities.
3.3 DISCLOSURE OF INFORMATION. Investor believes it has received all the
information it considers necessary or appropriate for deciding whether
to purchase the Securities. Investor further represents that it has had
an opportunity to ask questions and receive answers from the Company
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regarding the terms and conditions of the offering of the Securities
and the business, properties, prospects and financial condition of the
Company.
3.4 INVESTOR CAN PROTECT ITS INTEREST AND BEAR ECONOMIC RISK. Investor is
an investor in securities of companies in the development stage and
acknowledges that it is able to fend for itself, can bear the economic
risk of its investment and has such knowledge and experience in
financial or business matters that it is capable of evaluating the
merits and risks of the investment in the Securities. Investor also
represents it has not been organized for the purpose of acquiring the
Securities. Investor acknowledges that it must bear the economic risk
of this investment indefinitely unless the Securities are registered
pursuant to the Securities Act or an exemption from registration is
available. Investor also understands that there is no assurance that
any exemption from registration under the Securities Act will ever be
available and that, even if available, such exemption may not allow
Investor to transfer all or any portion of the Securities under the
circumstances, in the amounts or at the times Investor might propose.
3.5 ACCREDITED INVESTOR. Investor is an "accredited investor" within the
meaning of SEC Rule 501 of Regulation D, as then in effect.
3.6 RESTRICTED SECURITIES. Investor understands that the Securities are
characterized as "restricted securities" under the federal securities
laws inasmuch as they are being acquired from the Company in a
transaction not involving a public offering and that under such laws
and applicable regulations such Securities may be resold without
registration under the Securities Act only in certain limited
circumstances. In this connection, Investor represents that it is
familiar with SEC Rule 144, as then in effect, understands the resale
limitations imposed thereby and by the Securities Act, and understands
that the Securities may not currently be resold in reliance upon SEC
Rule 144.
3.7 FURTHER LIMITATIONS ON DISPOSITION. Without in any way limiting the
representations set forth above, Investor further agrees not to make
any disposition of all or any portion of the Securities, except to an
affiliate of Investor, unless and until the transferee has agreed in
writing for the benefit of the Company to be bound by this SECTION 3
and by the Investors' Rights Agreement to the extent this SECTION 3 and
such agreement are then applicable, and:
(a) There is then in effect a registration statement under the
Securities Act covering such proposed disposition and such
disposition is made in accordance with such registration
statement; or
(b) (i) Investor shall have notified the Company of the proposed
disposition and shall have furnished the Company with a
detailed statement of the circumstances surrounding the
proposed disposition and (ii) if reasonably requested by the
Company, Investor shall have furnished the Company with an
opinion of counsel, reasonably satisfactory to the Company,
that such disposition will not require registration of such
shares under the Securities Act.
3.8 LEGENDS. The certificates evidencing the Securities may bear a legend
substantially similar to the following:
(a) "THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR THE SECURITIES OR BLUE SKY LAWS OF DELAWARE,
CALIFORNIA OR ANY OTHER STATE. THEY MAY NOT BE SOLD, OFFERED
8
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FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF A
REGISTRATION OR QUALIFICATION UNDER SUCH FEDERAL AND STATE
LAWS OR, IF REQUESTED, AN OPINION OF COUNSEL SATISFACTORY TO
THE COMPANY THAT SUCH REGISTRATION OR QUALIFICATION IS NOT
REQUIRED."
3.9 RESIDENCE. The office of Investor in which its investment decision was
made is located at the address of Investor set forth on the signature
page hereto.
3.10 USE OF PROCEEDS. The net proceeds from this sale of Series A Stock
shall not be used to pay any expenses or costs that are not related to
the development of the application being developed or the fulfillment
of the Company's obligations under the Development, License and
Marketing Agreement, dated the date hereof, by and between the Company
and Scientific-Atlanta, Inc.
ARTICLE 4
CONDITIONS TO INVESTORS' OBLIGATIONS AT CLOSING
The obligations of Investor under this Agreement are subject to the
fulfillment on or before the Closing of each of the following conditions by the
Company, the waiver of which shall not be effective against the Investor unless
in writing and signed on Investor's behalf:
4.1 REPRESENTATIONS AND WARRANTIES. The representations and warranties of
the Company shall be true and correct in all material respects, in each
case as though made on and as of the date of the Closing (except for
such representations and warranties made as of a specific date, which
must be true and correct as of such date) with the same force and
effect as though made on and as of such date.
4.2 FILING OF CERTIFICATE OF DESIGNATION. The Certificate of Designation
shall have been filed with the Secretary of State of the State of
Delaware.
4.3 PROCEEDINGS AND DOCUMENTS. All corporate and other proceedings in
connection with the transactions contemplated at the Closing and all
documents incident thereto shall be reasonably satisfactory in form and
substance to the Investor, and the Investor shall have received all
such counterpart original and certified or other copies of such
documents as it may reasonably request.
4.4 PERFORMANCE. The Company shall have performed and complied with all
agreements, obligations and conditions contained in this Agreement that
are required to be performed or complied with by the Company on or
before the Closing.
4.5 CONSENTS. The Company shall have obtained any and all consents, permits
and waivers necessary or appropriate for the consummation of the
transactions contemplated by this Agreement and the Related Agreements
(except for such as may be properly obtained subsequent to the
Closing).
4.6 EXECUTION. This Agreement and the Related Agreements shall have been
executed and delivered by the parties thereto.
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14
ARTICLE 5
CONDITIONS TO THE COMPANY'S OBLIGATIONS AT CLOSING
The obligations of the Company to the Investor under this Agreement are
subject to the fulfillment on or before the Closing of each of the following
conditions by the Investor, the waiver of which shall not be effective against
the Company unless in writing and signed on behalf of the Company:
5.1 REPRESENTATIONS AND WARRANTIES. The representations and warranties of
Investor contained in SECTION 3 shall be true and correct on and as of
the Closing with the same effect as though such representations and
warranties had been made on and as of the date of such Closing.
5.2 PAYMENT OF PURCHASE PRICE. Investor shall have delivered the purchase
price specified in Section 1.2.
5.3 PERFORMANCE. Investor shall have performed and complied with all
agreements, obligations and conditions contained in this Agreement that
are required to be performed or complied with by Investor on or before
the Closing.
5.4 CONSENTS. Investor shall have obtained any and all consents, permits
and waivers necessary or appropriate for the consummation of the
transactions contemplated by this Agreement and the Related Agreements
(except for such as may be properly obtained subsequent to the
Closing).
5.5 EXECUTION. This Agreement and the Related Agreements shall have been
executed and delivered by the parties thereto.
ARTICLE 6
MISCELLANEOUS
6.1 SURVIVAL OF WARRANTIES. The warranties, representations and covenants
of the Company and Investor contained in or made pursuant to this
Agreement shall survive the execution and delivery of this Agreement
and the Closing for a period of one year and shall in no way be
affected by any investigation of the subject matter thereof made by or
on behalf of Investor or the Company. All statements as to factual
matters contained in any certificate or other instrument delivered by
or on behalf of the Company pursuant hereto in connection with the
actions contemplated hereby shall be deemed to be representations and
warranties by the Company hereunder solely as of the date of such
certificate or instrument.
6.2 SUCCESSORS AND ASSIGNS. Except as otherwise provided herein, the terms
and conditions of this Agreement shall inure to the benefit of and be
binding upon the respective successors and assigns of the parties
(including transferees of any Securities).
6.3 GOVERNING LAW. This Agreement shall be governed by and construed under
the laws of the State of California without regard to laws of the State
of California directing the application of the laws of another
jurisdiction. The parties consent to the jurisdiction of all federal
and state courts in California.
6.4 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument. A
facsimile signature page shall be deemed an original.
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6.5 TITLES AND SUBTITLES. The titles and subtitles used in this Agreement
are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
6.6 NOTICES. All notices (including other communications required or
permitted) under this Agreement must be in writing and must be
delivered (i) in person; (ii) by registered or certified mail, postage
prepaid, return receipt requested; or (iii) by a generally recognized
courier or messenger service that provides written acknowledgement of
receipt by the addressee. Notices are deemed delivered when actually
delivered to the address for notices. Notices must be given to parties
at the address set forth on the signature page below, although any
party may furnish, from time to time, other addresses for notices to
it.
6.7 AMENDMENTS AND WAIVERS. Any term of this Agreement may be amended and
the observance of any term of this Agreement may be waived (either
generally or in a particular instance and either retroactively or
prospectively) only with the written consent of the Company and the
Investor. Any amendment or waiver effected in accordance with this
Section shall be binding upon each holder of any Securities purchased
under this Agreement at the time outstanding, each future holder of all
such Securities and the Company.
6.8 SEVERABILITY. The provisions of this Agreement are severable. The
invalidity, in whole or in part, of any provision of this Agreement
will not affect the validity or enforceability of any other of its
provisions. If one or more provisions hereof will be declared invalid
or unenforceable, the remaining provisions will remain in full force
and effect and will be construed in the broadest possible manner to
effectuate the purposes hereof. If it is determined by a court of
competent jurisdiction in any state that any restriction in this
Section is excessive in duration or scope or is unreasonable or
unenforceable under the laws of that state, it is the intention of the
parties that such restriction may be modified or amended by the court
to render it enforceable to the maximum extent permitted by the law of
that state. The parties further agree to replace such void or
unenforceable provisions of this Agreement with valid and enforceable
provisions that will achieve, to the extent possible, the economic,
business and other purposes of the void or unenforceable provisions.
6.9 ENTIRE AGREEMENT. This Agreement (together with its Exhibits and other
documents referred to herein) is the complete and exclusive statement
of agreement and understanding of the parties with respect to matters
in this Agreement and is a complete and exclusive statement of the
terms and conditions thereof. This Agreement replaces and supersedes
all prior written or oral agreements, statements, correspondence,
negotiations and understandings by and among the parties with respect
to the matters covered by it. No representation, statement, condition
or warranty not contained in this Agreement is binding on the parties.
6.10 FURTHER ASSURANCES. Each party agrees to cooperate fully with the other
parties, to take such actions, to execute such further instruments,
documents and agreements, and to give such further written assurances,
as may be reasonably requested by any other party to evidence and
reflect the transactions described herein and contemplated hereby, and
to carry into effect the intents and purposes of this Agreement.
6.11 NO PRESUMPTION. The parties acknowledge that each party has been
represented by counsel in connection with this Agreement and the
transactions contemplated by this Agreement. Accordingly, any rule of
law, including without limitation Section 1654 of the California Civil
Code or any legal decision that would require interpretation of any
claimed ambiguities in this Agreement against the party that drafted it
has no application and is expressly waived. If any claim is made by a
party relating to any conflict, omission or ambiguity in the provisions
of this
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Agreement, no presumption or burden of proof or persuasion will be
implied because this Agreement was prepared by or at the request of any
party or its counsel.
6.12 THIRD PARTY BENEFICIARIES. Nothing herein expressed or implied is
intended to confer upon any person, other than the parties hereto and
their respective successors and permitted assignees, if any, any
rights, obligations, or liabilities under or by reason of this
Agreement.
6.13 KNOWLEDGE. For purposes of this Agreement, the term "knowledge of the
Company and NTN" or similar terms shall mean the actual knowledge of
Stanley B. Kinsey or V. Tyrone Lam.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first above written.
THE COMPANY
BUZZTIME ENTERTAINMENT, INC.
By: /s/ V. Tyrone Lam
----------------------------------------
Name: V. Tyrone Lam
Title: President
Address: The Campus - 5966 La Place Court
Carlsbad, California 92008
Phone:
Fax:
NTN
NTN COMMUNICATIONS, INC.
By: /s/ Stanley B. Kinsey
----------------------------------------
Name: Stanley B. Kinsey
Title: Chairman and Chief Executive Officer
Address: The Campus - 5966 La Place Court
Carlsbad, California 92008
Phone:
Fax:
INVESTOR
SCIENTIFIC-ATLANTA STRATEGIC INVESTMENTS, L.L.C.
By: /s/ Wallace G. Haislip
----------------------------------------
Name: Wallace G. Haislip
Title: President
Address: 5030 Sugarloaf Parkway
Lawrenceville, Georgia 30044
Phone:
Fax:
S-1 Signature Page to Purchase Agreement
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SCHEDULE 1
SCHEDULE OF EXCEPTIONS
2.7 BUZZTIME INTELLECTUAL PROPERTY
Registered Trademarks:
Abused News(R)
Brain Buster(R)
Countdown(R)
HIT(R)
Hoops(R)
Link Up Live And Play The World(R)
Nightside(R)
QB1(R)
Showdown(R)
Sports Trivia(R)
Sports Trivia Challenge(R)
Triviaoke(R)
Undercover(R)
Uppercut(R)
Viewer's Revue(R)
Pending Trademarks:
Buzztime(TM)
Fling(TM)
I-mercial(TM)
Kids Only Trivia(TM)
LiveSports(TM)/LivesSports.com(TM)
National Trivia League(TM)
National Trivia Network(TM)
Predict the Play(TM)
Public Portal(TM)/PublicPortal.com(TM)
The World is Your Game Show(TM)
Trivia Network(TM)/TriviaNetwork.neT(TM)
Spotlight(TM)
World Trivia League(TM)
Pending Trademarks, Canada:
Abused News
Fling
National Trivia League
World Trivia League
The World is Your Game Show
Predict the Play
Registered Copyrights:
Football Challenge
Passport
Playback
QB1
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Showdown
Sports Trivia
Spotlight
Survivor
Wipeout
Registered Domain Names:
BigTrivia.com BigTrivia.net
BigTriviaShow.com BigTriviaShow.net
BuzzTime.com BuzzTime.net
BuzzTimeGames.net BuzzTimeGames.com
BuzzTimeKids.net BuzzTimeKids.com
BuzzTimeNetwork.com BuzzTimeNetwork.net
BuzzTimeSports.com BuzzTimeSports.net
BuzzTimeTrivia.com BuzzTimeTrivia.net
BuzzTimeTV.net BuzzTimeTV.com
I-mercial.com
LiveSports.com
NationalTriviaLeague.com NationalTriviaLeague.net
NationalTriviaNetwork.com
PlayAlongSports.com PlayAlongSports.net
PlayTV.net
QB1.com
TheTriviaNetwork.net TriviaNetwork.net
WorldTriviaLeague.com WorldTriviaLeague.net
Trivia Game Show Library(1) Interactive Play-Along Sports Games(1)
Premium trivia games: QB1(R)
fling(TM) Hoops(R)
Passport(TM) Predict the Play(TM)applications
Playback(TM) Brackets(TM)
Showdown(R) Football Challenge(TM)
SportsIQ(TM) Survivor(TM)
SportsTriviaChallenge(R) Uppercut(R)
Spotlight(TM)
Glory Daze(TM)
- --------
(1) Includes all formats, text, graphics, related software and
applicable copyrights, trademarks and other intellectual property.
20
Trivia Games(1): Interactive Polling Applications(1):
BrainBuster(R) Awards Shows
Countdown(R) Play-Along Game Shows
Topix(TM) Viewer Polling
Wipeout(TM) Ad Polls (viewers voting for favorite
Nightside(R) ads)
SportsTrivia(R)
Retroactive(TM)
Football Weekend Roundup(TM)
Abused News(R)
Appeteasers(TM)
Jukebox(TM)
Triviaoke(R)
Undercover(R)
Viewer's Revue(R)
Trivia Game Content Database:
All multi-player interactive trivia games composed of questions,
multiple choice answers, clues, facts and other information tied to the game.
Also included are player information, ranking information, promotion and
competition information.
Trivia Database Technology
The Trivia Database Technology is a collection of hardware and software
that provide for management of the Database of Trivia content owned by BUZZTIME.
This Technology includes, but is not limited to, the collection, creation,
editing, indexing, categorization, storage, retrieval and distribution of the
BUZZTIME and, optionally, 3rd Party Trivia content.
Broadcast Director Referee Capability (cross licensed)
This is a discrete set of functionality, cross licensed from NTN, that
allows for the recording of live event data in programs produced by BUZZTIME for
NTN.
Game Server Technology
The Game Technology is a collection of hardware and software, executing
at either a BUZZTIME or 3rd Party location. It's overall purpose is to reduce
load on head-end systems and smooth cable system execution differences. The
technology is responsible for question and answer packaging, messaging and
processing select commands, compiling local and global scoring and ranking
statistics and is primarily responsible for maintaining iTV player connections,
and interpreting user input.
Production Tools
BUZZTIME's Production Tools are software that enable the ability to
synchronize an interactive trivia or sports game to a live event broadcast. The
main functions include but are not limited to:
- --------
(1) Includes all formats, text, graphics, related software and
applicable copyrights, trademarks and other intellectual property.
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o Triggering events and lockouts
o Serving advertisements
o Opening and close virtual stadiums
o Selecting random players for real time bonus events
Reporting Tools
BUZZTIME has developed and owns a set of web-based reporting tools,
that are utilized by the Company and 3rd Parties. These tools report usage
statistics for each distribution platform.
BUZZTIME Web Technology
BUZZTIME's Web Technology is a suite of fulfillment, personalization
and rewards engines designed to be integrated in to BUZZTIME.com. While these
engines are not currently utilized, the opportunity may exist to leverage them
at a later date.
Supporting Hardware and Software
All hardware and software related to, and required for operation of,
the Trivia Database Technology, Broadcast Director Referee Capability, Channel
Server/Line Server, Production Tools, Reporting Tools and BUZZTIME Web
Technology.
I-mercial(TM) Technology
All software and hardware related to, and required for operation of,
I-mercials; namely, I-mercials are live, interactive advertisements displayed on
an end-user's equipment.
2.8 COMPLIANCE WITH OTHER INSTRUMENTS
- Loan and Security Agreement, dated August 6, 1999, by and
between NTN and Coast Business Credit - written consent
required prior to entering into the Agreement and Related
Agreements.
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2.9.1 AFFILIATE AGREEMENTS
- Licensing & Marketing Agreement by and between NTN
Communications, Inc. and BUZZTIME, Inc.
- Contribution Agreement by and between NTN Communications, Inc.
and BUZZTIME, Inc.
- Administrative Services Agreement by and between NTN
Communications, Inc. and BUZZTIME, Inc.
2.9.2 MATERIAL AGREEMENTS
- Advertising and Promotion Agreement, dated April 18, 2001, by
and between WebTV Networks, Inc. and BUZZTIME, Inc.
- Licensing & Marketing Agreement by and between NTN
Communications, Inc. and BUZZTIME, Inc.
- License Agreement, dated March 23, 1990, by and between NTN
Communications, Inc. and NTN Interactive Network, Inc.,
(formerly NTN Sports, Inc.) -
2.9.3 INDEBTEDNESS
- Loan & Security Agreement, dated August 6, 1999, by and among
Coast Business Credit, NTN Communications, Inc. and BUZZTIME,
Inc., as amended September 2, 1999, March 2, 2000 and April
30, 2001.
2.12 EMPLOYEES
- Letter Agreement, dated December 21, 2000, by and between NTN
Communications, Inc. and Mark deGorter.
- Letter Agreement, dated May 2, 2001, by and between NTN
Communications, Inc. and James B. Frakes.
2.14 TITLE TO PROPERTY AND ASSETS
- The Loan & Security Agreement with Coast Business Credit is
secured by substantially all of the assets of NTN and
BUZZTIME.
2.16 FULL DISCLOSURE
- NTN Communication, Inc.'s Confidential Private Placement
Memorandum dated October 11, 2000 (as such disclosure may have
been updated and superseded by any information contained in
the SEC Documents filed with the SEC after October 11, 2000)
except with respect to any disclosure describing the specific
terms of the offering offered thereby.
- BUZZTIME Entertainment, Inc.'s Confidential Business Plan
Summary dated February 2001 (as such disclosure may have been
updated and superseded by any information contained in the SEC
Documents filed with the SEC after February 2001).
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- The Question and Answer Memorandum from Buzztime dated
February 6, 2001 (as such disclosure may have been updated and
superseded by any information contained in the SEC Documents
filed with the SEC after January 2001).
- Buzztime, Inc's Balance Sheet, Income Statement and Statement
of Cash Flows (all unaudited) for the fiscal year ending
December 31, 2000 and the fiscal quarter ending March 31,
2001.
- Buzztime, Inc's Income and Cash Flow Forecasts for the period
from June 1, 2001 to May 31, 2002.