As
filed with the Securities and Exchange Commission on December 22, 2016
Registration
No. 333-__________
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
S-3
REGISTRATION
STATEMENT
UNDER
THE SECURITIES ACT OF 1933
NTN
Buzztime, Inc.
(Exact
name of registrant as specified in its charter)
Delaware
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31-1103425
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(State
or other jurisdiction of
incorporation or organization)
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(I.R.S.
employer
identification number)
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2231
Rutherford Road, Suite 200
Carlsbad,
California, 92008
(760)
438-7400
(Address,
including zip code, and telephone number, including area code, of registrant’s principal executive offices)
Ram
Krishnan
Chief
Executive Officer
NTN
Buzztime, Inc.
2231
Rutherford Road, Suite 200
Carlsbad,
California 92008
(760)
438-7400
(Name,
address, including zip code, and telephone number, including area code, of agent for service)
Copies
to:
Edwin
Astudillo, Esq.
Breakwater
Law Group, LLP
1201
Camino Del Mar, Suite 202,
Del Mar, California 92014
Approximate
date of commencement of proposed sale to the public:
From time to time after the effective date of the registration statement.
If
the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please
check the following box. [ ]
If
any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under
the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check
the following box. [X]
If
this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please
check the following box and list the Securities Act registration statement number of the earlier effective registration statement
for the same offering. [ ]
If
this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list
the Securities Act registration statement number of the earlier effective registration statement for the same offering. [ ]
If
this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become
effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. [ ]
If
this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register
additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following
box. [ ]
Indicate
by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller
reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller
reporting company” in Rule 12b-2 of the Exchange Act.
Large
accelerated filer [ ]
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Accelerated
filer [ ]
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Non-accelerated
filer [ ]
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Smaller
reporting company [X]
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(Do
not check if a smaller reporting company)
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CALCULATION
OF REGISTRATION FEE
Title
of Each Class of Securities to be Registered (1)
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Amount
to be Registered
(2)
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Proposed
Maximum
Offering
Price Per Share
(2)
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Proposed
Maximum
Aggregate
Offering Price (3)
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Amount
of
Registration Fee
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Common Stock,
par value $0.005 per share
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Preferred
Stock, par value $0.005 per share
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Debt
Securities
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Warrants
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Units
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Total
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-
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$
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25,000,000
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$1,131.00
(4)
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(1)
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There
are being registered hereunder such indeterminate number of shares of common stock, such indeterminate number of shares of
preferred stock, such indeterminate principal amount of debt securities, and such indeterminate number of warrants to purchase
common stock, preferred stock or debt securities as will have an aggregate initial offering price not to exceed $25,000,000.
Any securities registered hereunder may be sold separately or as units with other securities registered hereunder. The proposed
maximum initial offering price per unit will be determined, from time to time, by the registrant in connection with the issuance
by the registrant of the securities registered hereunder. The securities registered also include such indeterminate number
of shares of common stock and preferred stock and amount of debt securities as may be issued upon conversion of or exchange
for preferred stock or debt securities that provide for conversion or exchange, upon exercise of warrants or pursuant to the
antidilution provisions of any such securities. In addition, pursuant to Rule 416 under the Securities Act, the shares being
registered hereunder include such indeterminate number of shares of common stock and preferred stock as may be issuable with
respect to the shares being registered hereunder as a result of stock splits, stock dividends or similar transactions.
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(2)
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The
proposed maximum aggregate offering price per class of security will be determined from time to time by the registrant in
connection with the issuance by the registrant of the securities registered hereunder and is not specified as to each class
of security pursuant to General Instruction II.D of Form S-3.
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(3)
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The
proposed maximum initial offering price per unit will be determined, from time to time, by the registrant in connection with
the issuance by the registrant of the securities registered hereunder and is not specified as to each class of security pursuant
to General Instruction II.D of Form S-3. The registrant has estimated the proposed maximum aggregate offering price solely
for the purpose of calculating the registration fee pursuant to Rule 457(o). If any debt securities are issued at an original
issue discount, then the offering price of such debt securities shall be in such greater principal amount as shall result
in an aggregate initial offering price not to exceed $25,000,000, less the aggregate dollar amount of all securities previously
issued hereunder.
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(4)
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Pursuant
to Rule 415(a)(6) under the Securities Act, the securities registered hereunder include unsold securities previously registered
pursuant to Registration Statement No. 333-193012, which was declared effective on January 9, 2014 (the “Prior Registration
Statement”). The Prior Registration Statement registered the offer and sale of an indeterminate number of shares of
common stock, an indeterminate number of shares of preferred stock, an indeterminate principal amount of debt securities,
and an indeterminate number of warrants to purchase common stock, preferred stock or debt securities having an aggregate initial
offering price not to exceed $25,000,000, of which $15,243,098.56 remain unsold (the “Unsold Securities”) as the
date of filing of this registration statement. The registrant has determined to include in this registration statement the
Unsold Securities. In connection with the registration of the Unsold Securities on the Prior Registration Statement, the registrant
paid a registration fee of $1,963.31 for the Unsold Securities, which fee will continue to be applied to the Unsold Securities
included in this registration statement. Accordingly, the amount of the registration fee for the registration of securities
under this registration statement has been calculated based on the proposed maximum offering price of the additional $9,756,901.44
of securities registered on this registration statement (the “New Securities”), which aggregate offering price
is not specified as to each class of security. To the extent that, after the filing date hereof and prior to the effectiveness
of this registration statement, the registrant sells any Unsold Securities pursuant to the Prior Registration Statement, the
Registrant will identify in a pre-effective amendment to this registration statement the updated amount of Unsold Securities
from the Prior Registration Statement to be included in this registration statement pursuant to Rule 415(a)(6) and the updated
amount of New Securities to be registered on this registration statement. Pursuant to Rule 415(a)(6), the offering of the
Unsold Securities under the Prior Registration Statement will be deemed terminated as of the date of effectiveness of this
registration statement.
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The
registrant hereby amends this registration statement on such date or dates as may be necessary to delay its effective date until
the registrant shall file a further amendment that specifically states that this registration statement shall thereafter become
effective in accordance with Section 8(a) of the Securities Act of 1933, as amended, or until this registration statement shall
become effective on such date as the Securities and Exchange Commission, acting pursuant to said Section 8(a), may determine.
The
information in this prospectus is not complete and may be changed. We may not sell these securities until the registration statement
filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities and it
is not soliciting an offer to buy these securities in any state where the offer or sale is not permitted.
SUBJECT
TO COMPLETION, DATED DECEMBER 22, 2016
PRELIMINARY
PROSPECTUS
$25,000,000
Common
Stock
Preferred
Stock
Debt
Securities
Warrants
Units
We
may, from time to time in one or more offerings, offer and sell up to $25,000,000 in the aggregate of common stock, preferred
stock, debt securities, warrants to purchase common stock, preferred stock or debt securities, or any combination of the foregoing,
either individually or as units comprised of one or more of the other securities.
This
prospectus provides a general description of the securities we may offer. We will provide the specific terms of the securities
offered in one or more supplements to this prospectus. We may also authorize one or more free writing prospectuses to be provided
to you in connection with these offerings. The prospectus supplement and any applicable free writing prospectus may add, update
or change information contained in this prospectus. You should read carefully this prospectus, the applicable prospectus supplement
and any applicable free writing prospectus, as well as any documents incorporated by reference before you invest in any of our
securities. This prospectus may not be used to offer or sell any securities unless accompanied by the applicable prospectus supplement.
Our
common stock is listed on the NYSE MKT under the symbol “NTN.” On December 19, 2016, the closing sale price for our
common stock was $9.78 per share.
The
aggregate market value of our outstanding common stock held by non-affiliates was approximately $15.0 million, based on 2,260,668
shares of outstanding common stock as of December 19, 2013, of which 852,990 shares are held by affiliates, and a price of $10.65
per share, which was the last reported sale price of our common stock on the NYSE MKT on December 1, 2016. As of the date of this
prospectus, we have offered and sold shares of common stock with an aggregates sales price of $2,736,151 pursuant to General Instruction
I.B.6. of Form S-3 during the prior 12 calendar month period that ends on, and includes, the date of this prospectus.
Investing
in our securities involves a high degree of risk. See the section entitled “Risk Factors” on page 4 of this prospectus
and as updated in the applicable prospectus supplement, any applicable free writing prospectus and other future filings we make
with the Securities and Exchange Commission that are incorporated by reference into this prospectus. See “Information Incorporated
by Reference.”
Neither
the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or
determined if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
The
date of this prospectus is ________, 2016
TABLE
OF CONTENTS
ABOUT
THIS PROSPECTUS
This
prospectus is part of a registration statement that we filed with the Securities and Exchange Commission, or the SEC, under the
Securities Act of 1933, as amended, or the Securities Act, using a “shelf” registration process. Under this shelf
registration process, we may from time to time sell common stock, preferred stock, debt securities or warrants to purchase common
stock, preferred stock or debt securities, or any combination of the foregoing, either individually or as units comprised of one
or more of the other securities, in one or more offerings up to a total dollar amount of $25,000,000. We have provided to you
in this prospectus a general description of the securities we may offer. Each time we sell securities under this shelf registration,
we will, to the extent required by law, provide a prospectus supplement that will contain specific information about the terms
of that offering. We may also authorize one or more free writing prospectuses to be provided to you that may contain material
information relating to these offerings. The prospectus supplement and any applicable free writing prospectus that we may authorize
to be provided to you may also add, update or change information contained in this prospectus or in any documents that we have
incorporated by reference into this prospectus. To the extent there is a conflict between the information contained in this prospectus
and the prospectus supplement or any applicable free writing prospectus, you should rely on the information in the prospectus
supplement or the applicable free writing prospectus; provided that if any statement in one of these documents is inconsistent
with a statement in another document having a later date — for example, a document filed after the date of this prospectus
and incorporated by reference into this prospectus or any prospectus supplement or any applicable free writing prospectus —
the statement in the document having the later date modifies or supersedes the earlier statement.
We
have not authorized any dealer, agent or other person to give any information or to make any representation other than those contained
or incorporated by reference in this prospectus and any accompanying prospectus supplement, or any applicable free writing prospectus
that we may authorize to be provided to you. You must not rely upon any information or representation not contained or incorporated
by reference in this prospectus or an accompanying prospectus supplement. This prospectus and the accompanying prospectus supplement,
if any, do not constitute an offer to sell or the solicitation of an offer to buy any securities other than the registered securities
to which they relate, nor do this prospectus and the accompanying prospectus supplement constitute an offer to sell or the solicitation
of an offer to buy securities in any jurisdiction to any person to whom it is unlawful to make such offer or solicitation in such
jurisdiction. You should not assume that the information contained in this prospectus, any applicable prospectus supplement or
any applicable free writing prospectus is accurate on any date subsequent to the date set forth on the front of the document or
that any information we have incorporated by reference is correct on any date subsequent to the date of the document incorporated
by reference (as our business, financial condition, results of operations and prospects may have changed since that date), even
though this prospectus, any applicable prospectus supplement or any applicable free writing prospectus is delivered or securities
are sold on a later date.
As
permitted by SEC rules, the registration statement of which this prospectus forms a part includes additional information not contained
in this prospectus. You may read that registration statement and the other reports we file with the SEC at its web site or at
its offices described below under “Where You Can Find Additional Information.”
SUMMARY
This
summary highlights the information contained elsewhere in or incorporated by reference into this prospectus. Because this
is only a summary, it does not contain all of the information that you should consider before investing in our securities.
You should carefully read this entire prospectus, including the information contained under the heading “Risk Factors,”
and all other information included or incorporated by reference into this prospectus in their entirety before you invest
in our securities.
References
to “we,” “us,” “our,” “our company,” “the Company,” and “Buzztime”
refers to NTN Buzztime, Inc. and its subsidiaries, unless the context requires otherwise.
Company
Overview
We
deliver interactive entertainment and innovative dining technology to bars and restaurants in North America. Customers
license our customizable solution to differentiate themselves via competitive fun by offering guests trivia, card, sports
and arcade games, nationwide competitions, and by offering self-service dining features including dynamic menus, touchscreen
ordering and secure payment. Our platform can improve operating efficiencies, create connections among the players and
venues and amplify guests’ positive experiences. Built on an extended network platform, our interactive entertainment
system has historically allowed multiple players to interact at the venue, and now also enables competition between venues,
referred to as massively multiplayer gaming. Our current platform, which we refer to as Buzztime Entertainment On Demand,
or BEOND, was first introduced as a pilot program in December 2012, was expanded commercially during 2013, and the expansion
was scaled during 2014. We continue to enhance its network architecture and the BEOND tablet platform and player engagement
paradigms. We also continue to support its legacy network product line, which it refers to as Classic.
We
currently generate revenue by charging subscription fees for our service to our network subscribers, by leasing
equipment (including tablets used in its BEOND tablet platform and the cases and charging trays for the tablets) to certain
network subscribers, by hosting live trivia events, and by selling advertising aired on in-venue screens and as part of
customized games. In 2014, we began offering pay-to-play premium content to certain customers, such as paid arcade. During
the second quarter of 2015, we made a strategic change in our premium content model by making arcade available on both
a free-to-consumer (in exchange for an increased subscription fee) and pay-to-play basis. This change required us to delay
the general availability of pay-to-play arcade as we retooled its content, workflow and positioning. As a result, during
2015, we generated additional subscription fee revenue from those venues offering free-to-consumer arcade. We began rolling
out the new pay-to-play arcade during the second quarter of 2016. At September 30, 2016, 2,848 venues in the U.S. and
Canada subscribed to our interactive entertainment network, of which approximately 69% were using the BEOND tablet platform.
Our
principal office is located at 2231 Rutherford Road, Carlsbad, California 92008, and the telephone number at that address
is (760) 438-7400. Our website address is www.buzztime.com. Except for those filings we make with the Securities and Exchange
Commission, or the SEC, that are incorporated by reference in this prospectus, none of the information contained on, or
that may be accessed through, our website is a prospectus or constitutes part of, or is otherwise incorporated into, this
prospectus.
The
Securities We May Offer
We
may offer shares of our common stock and preferred stock, various series of debt securities and warrants to purchase any
of such securities, either individually or in units, with a total value of up to $25,000,000 from time to time under this
prospectus, together with any applicable prospectus supplement and applicable free writing prospectus, at prices and on
terms to be determined by market conditions at the time of offering. If we issue any debt securities at a discount from
their original stated principal amount, then, for purposes of calculating the total dollar amount of all securities issued
under this prospectus, we will treat the initial offering price of the debt securities as the total original principal
amount of the debt securities. Each time we offer securities under this prospectus, we will provide offerees with a prospectus
supplement that will describe the specific amounts, prices and other important terms of the securities being offered,
including, to the extent applicable:
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designation
or classification;
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aggregate
principal amount or aggregate offering price;
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maturity,
if applicable;
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original
issue discount, if any;
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rates
and times of payment of interest or dividends, if any;
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redemption,
conversion, exchange or sinking fund terms, if any;
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conversion
or exchange prices or rates, if any, and, if applicable, any provisions for changes to or adjustments in the conversion or
exchange prices or rates and in the securities or other property receivable upon conversion or exchange;
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ranking;
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restrictive
covenants, if any;
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voting
or other rights, if any; and
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important
United States federal income tax considerations.
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The
prospectus supplement and any applicable free writing prospectus that we may authorize to be provided to you may also
add, update or change information contained in this prospectus or in documents we have incorporated by reference. However,
no prospectus supplement or free writing prospectus will offer a security that is not registered and described in this
prospectus at the time of the effectiveness of the registration statement of which this prospectus is a part.
We
may sell the securities to or through underwriters, dealers or agents or directly to purchasers. We, as well as any agents
acting on our behalf, reserve the sole right to accept and to reject in whole or in part any proposed purchase of securities.
Each prospectus supplement will set forth the names of any underwriters, dealers or agents involved in the sale of securities
described in that prospectus supplement and any applicable fee, commission or discount arrangements with them, details
regarding any over-allotment option granted to them, and net proceeds to us. The following is a summary of the securities
we may offer with this prospectus.
Common
Stock
We
currently have authorized 168,000,000 shares of common stock, par value $0.005 per share, of which 2,260,668 shares
were issued and outstanding as of December 16, 2016. We may offer shares of our common stock either alone or underlying
other registered securities convertible into or exercisable for our common stock. Holders of our common stock are entitled
to such dividends as our board of directors may declare from time to time out of legally available funds, subject to the
preferential rights of the holders of any shares of our preferred stock that are outstanding or that we may issue in the
future. Currently, we do not pay any dividends on our common stock. Each holder of our common stock is entitled to one
vote per share. In this prospectus, we provide a general description of, among other things, the rights and restrictions
that apply to holders of our common stock.
Preferred
Stock
We
currently have authorized 10,000,000 shares of preferred stock, par value $0.005 per share, 5,000,000 of which have been
designated as Series A Convertible Preferred Stock, of which 156,112 are outstanding as of December 16, 2016.
Any
authorized and undesignated shares of preferred stock may be issued with such rights and powers as the board of directors
may designate. Under our restated certificate of incorporation, our board of directors has the authority to issue shares
of our preferred stock in one or more series and to fix or alter the rights, preferences, privileges and restrictions
granted to or imposed upon any series of preferred stock. The particular terms of each class or series of preferred stock,
including redemption privileges, liquidation preferences, voting rights, dividend rights and/or conversion rights, will
be more fully described in the applicable prospectus supplement relating to the preferred stock offered thereby.
The
rights, preferences, privileges and restrictions granted to or imposed upon any series of preferred stock that we offer
and sell under this prospectus and applicable prospectus supplements will be set forth in a certificate of designation
relating to the series. We file as an exhibit to the registration statement of which this prospectus is a part, or will
incorporate by reference from another report that we file with the SEC, the form of any certificate of designation that
describes the terms of any series of preferred stock we offer under this prospectus before the issuance of shares of that
series of preferred stock. You should read any prospectus supplement and any free writing prospectus that we may authorize
to be provided to you related to the series of preferred stock being offered, as well as the complete certificate of designation
that contains the terms of the applicable series of preferred stock.
Debt
Securities
We
may offer general debt obligations, which may be secured or unsecured, senior or subordinated and convertible into shares
of our common stock. In this prospectus, we refer to the senior debt securities and the subordinated debt securities together
as the “debt securities.” We may issue debt securities under a note purchase agreement or under an indenture
to be entered between us and a trustee; forms of the senior and subordinated indentures are included as an exhibit to
the registration statement of which this prospectus is a part. The indentures do not limit the amount of securities that
may be issued under it and provides that debt securities may be issued in one or more series. The senior debt securities
will have the same rank as all of our other indebtedness that is not subordinated. The subordinated debt securities will
be subordinated to our senior debt on terms set forth in the applicable prospectus supplement. In addition, the subordinated
debt securities will be effectively subordinated to creditors and preferred stockholders of our subsidiaries. Our board
of directors will determine the terms of each series of debt securities being offered. This prospectus contains only general
terms and provisions of the debt securities. The applicable prospectus supplement will describe the particular terms of
the debt securities offered thereby. You should read any prospectus supplement and any free writing prospectus that we
may authorize to be provided to you related to the series of debt securities being offered, as well as the complete note
agreements and/or indentures that contain the terms of the debt securities. Forms of indentures have been filed as exhibits
to the registration statement of which this prospectus is a part, and supplemental indentures and forms of debt securities
we offer under this prospectus will be filed as exhibits to the registration statement of which this prospectus is a part,
or will be incorporated by reference from another report we file with the SEC.
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Warrants
We
may offer warrants for the purchase of shares of our common stock or preferred stock or of debt securities. We may issue
the warrants by themselves or together with common stock, preferred stock or debt securities, and the warrants may be
attached to or separate from any offered securities. Each series of warrants will be issued under a separate warrant agreement
to be entered into between us and the investors or a warrant agent. Our board of directors will determine the terms of
the warrants. This prospectus contains only general terms and provisions of the warrants. The applicable prospectus supplement
will describe the particular terms of the warrants being offered thereby. You should read any prospectus supplement and
any free writing prospectus that we may authorize to be provided to you related to the series of warrants being offered,
as well as the complete warrant agreements that contain the terms of the warrants. Specific warrant agreements will contain
additional important terms and provisions and we will file as an exhibit to the registration statement of which this prospectus
is a part, or will incorporate by reference from another report we file with the SEC, the form of each warrant agreement
relating to the warrants offered under this prospectus.
Units
We
may offer units consisting of our common stock or preferred stock, debt securities and/or warrants to purchase any of
these securities in one or more series. We may evidence each series of units by unit certificates that we will issue under
a separate agreement. We may enter into unit agreements with a unit agent. Each unit agent will be a bank or trust company
that we select. We will indicate the name and address of the unit agent in the applicable prospectus supplement relating
to a particular series of units. This prospectus contains only a summary of certain general features of the units. The
applicable prospectus supplement will describe the particular features of the units being offered thereby. You should
read any prospectus supplement and any free writing prospectus that we may authorize to be provided to you related to
the series of units being offered, as well as the complete unit agreements that contain the terms of the units. Specific
unit agreements will contain additional important terms and provisions and we will file as an exhibit to the registration
statement of which this prospectus is a part, or will incorporate by reference from another report we file with the SEC,
the form of each unit agreement relating to the units offered under this prospectus.
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RISK
FACTORS
Investing
in our securities involves a high degree of risk. You should carefully consider the risk factors set forth under “Risk Factors”
in Item 1A of our annual report on Form 10-K for the year ended December 31, 2015, which is incorporated by reference in this
prospectus, together with all other information contained or incorporated by reference in this prospectus, as may be updated by
our subsequent filings under the Securities Exchange Act of 1934, as amended, or the Exchange Act, and the risk factors and other
information contained in any applicable prospectus supplement and in any applicable free writing prospectus in connection with
a specific offering, before deciding whether to purchase any of the securities being registered pursuant to the registration statement
of which this prospectus is a part. Each of the risk factors could adversely affect our business, operating results and financial
condition, as well as adversely affect the value of an investment in our securities, and the occurrence of any of these risks
might cause you to lose all or part of your investment. Additional risks and uncertainties that we do not presently know about
or that we currently believe are not material may also adversely affect our business.
CAUTIONARY
NOTE REGARDING FORWARD-LOOKING STATEMENTS
This
prospectus and the documents incorporated by reference herein contain, or will contain, “forward-looking statements”
within the meaning of Section 27A of the Securities Act and Section 21E of the Exchange Act, which include information relating
to future events, future financial performance, strategies, expectations and competitive environment. Words such as “believes,”
“anticipates,” “estimates,” “expects,” “projections,” “may,” “potential,”
“plan,” “continue” and similar expressions are intended to identify forward-looking statements, but are
not the exclusive means of identifying forward-looking statements. All statements, other than statements of historical fact, are
statements that could be deemed forward-looking statements, including but not limited to statements regarding our future financial
performance or position, our business strategy, plans or expectations, and our objectives for future operations, including relating
to our products and services. Forward-looking statements are inherently subject to risks and uncertainties and our actual results
and outcomes may be materially different from those expressed or implied by the forward-looking statements. Our actual results
and outcomes may differ materially from those projected in the forward-looking statements due to risks and uncertainties that
exist in our operations, development efforts and business environment, including those set forth under the heading “Risk
Factors” in this prospectus, and other documents we file with the SEC that are incorporated by reference herein. We cannot
guarantee future results, levels of activity, performance or achievements. Readers are urged not to place undue reliance on these
forward-looking statements, which speak only as of the date of this prospectus or for forward-looking statements in other documents
we file with the SEC that are incorporated by reference herein, as of the date of such document. Except as required by law, we
do not undertake any obligation to revise or update any such forward-looking statement to reflect future events or circumstances.
SECURITIES
WE MAY OFFER
We
may offer shares of common stock, shares of preferred stock, debt securities or warrants to purchase common stock, preferred stock
or debt securities, or any combination of the foregoing, either individually or as units comprised of one or more of the other
securities. We may offer up to $25,000,000 of securities under this prospectus. If securities are offered as units, we will describe
the terms of the units in a prospectus supplement.
USE
OF PROCEEDS
Except
as described in any prospectus supplement and any free writing prospectus in connection with a specific offering, we currently
intend to use the net proceeds from the sale of the securities for working capital and other general corporate purposes. We may
also use the net proceeds to repay any debts and/or invest in or acquire complementary businesses, products or technologies, although
we have no current commitments or agreements with respect to any such investments or acquisitions as of the date of this prospectus.
We have not determined the amount of net proceeds to be used specifically for the foregoing purposes. If a material part of the
net proceeds is to be used to repay indebtedness, we will set forth the interest rate and maturity of such indebtedness in a prospectus
supplement. As a result, our management will have broad discretion in the allocation of the net proceeds and investors will be
relying on the judgment of our management regarding the application of the proceeds of any sale of the securities. Pending use
of the net proceeds, we intend to invest the proceeds in short-term, investment-grade, interest-bearing instruments.
We
may set forth additional information on the use of net proceeds from the sale of securities we offer under this prospectus in
a prospectus supplement relating to the specific offering.
DESCRIPTION
OF COMMON STOCK AND PREFERRED STOCK
The
following description of our common stock and preferred stock, together with any additional information we include in any applicable
prospectus supplement or any applicable free writing prospectus, summarizes the material terms and provisions of our common stock
and the preferred stock that we may offer under this prospectus. While the terms we have summarized below will apply generally
to any future common stock or preferred stock that we may offer, we will describe the particular terms of any class or series
of these securities in more detail in the applicable prospectus supplement. For the complete terms of our common stock and preferred
stock, please refer to our restated certificate of incorporation and our bylaws that are incorporated by reference into the registration
statement of which this prospectus is a part or may be incorporated by reference in this prospectus or any applicable prospectus
supplement. The terms of these securities may also be affected by the Delaware General Corporation Law, or the DGCL. The summary
below and that contained in any applicable prospectus supplement or any applicable free writing prospectus are qualified in their
entirety by reference to our restated certificate of incorporation and our bylaws.
Common
Stock
We
are authorized to issue 168,000,000 shares of common stock, par value $0.005 per share, of which 2,260,668 shares were issued
and outstanding as of December 16, 2016. Additional shares of authorized common stock may be issued, as authorized by our board
of directors from time to time, without stockholder approval, except as may be required by applicable securities exchange requirements.
The holders of common stock possess exclusive voting rights in us, except to the extent our board of directors specifies voting
power with respect to any other class of securities issued in the future. Each holder of our common stock is entitled to one vote
for each share held of record on each matter submitted to a vote of stockholders, including the election of directors. Stockholders
do not have any right to cumulate votes in the election of directors.
Subject
to preferences that may be granted to the holders of preferred stock, each holder of our common stock is entitled to share ratably
in distributions to stockholders and to receive ratably such dividends as may be declared by our board of directors out of funds
legally available therefor. In the event of our liquidation, dissolution or winding up, the holders of our common stock will be
entitled to receive, after payment of all of our debts and liabilities and of all sums to which holders of any preferred stock
may be entitled, the distribution of any of our remaining assets. Holders of our common stock have no conversion, exchange, sinking
fund or redemption rights and have no preemptive rights to subscribe for any of our securities.
All
of the outstanding shares of our common stock are fully paid and non-assessable. The shares of common stock offered by this prospectus
or upon the conversion of any preferred stock or debt securities or exercise of any warrants offered pursuant to this prospectus,
when issued and paid for, will also be, fully paid and non-assessable.
Securities
Exchange Listing
Our
common stock is listed on the NYSE MKT under the symbol “NTN.”
Transfer
Agent and Registrar
The
transfer agent and registrar for our common stock is American Stock Transfer & Trust Company.
Preferred
Stock
We
currently have authorized 10,000,000 shares of preferred stock, par value $0.005 per share, 5,000,000 of which have been designated
as Series A Convertible Preferred Stock, of which 156,112 are outstanding as of December 16, 2016.
Pursuant
to our restated certificate of incorporation, our board of directors has the authority to provide for the issuance, in one or
more series, of our authorized preferred stock and to fix or alter the rights, preferences, privileges and restrictions granted
to or imposed upon any series of our preferred stock. The rights, privileges, preferences and restrictions of any such series
of our preferred stock may be subordinated to, pari passu with (including, without limitation, inclusion in provisions with respect
to liquidation and acquisition preferences, redemption or approval of matters by vote or written consent), or senior to any of
those of any present or future class or series of preferred stock or common stock. Our board of directors is also expressly authorized
to increase or decrease the number of shares of any series prior or subsequent to the issue of that series, but not below the
number of shares of such series then outstanding. The issuance of preferred stock may have the effect of decreasing the market
price of our common stock and may adversely affect the voting power of holders of our common stock and reduce the likelihood that
holders of our common stock will receive dividend payments and payments upon liquidation.
The
particular terms of each class or series of preferred stock that we may offer under this prospectus, including redemption privileges,
liquidation preferences, voting rights, dividend rights and/or conversion rights, will be more fully described in the applicable
prospectus supplement relating to the preferred stock offered thereby. The rights, preferences, privileges and restrictions of
the preferred stock of each series will be fixed by the certificate of designation relating to each series. We will incorporate
by reference into the registration statement of which this prospectus is a part the form of any certificate of designation that
describes the terms of the series of preferred stock we are offering before the issuance of the related series of preferred stock.
The applicable prospectus supplement will specify the terms of the series of preferred stock we may offer, including, but not
limited to:
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the
distinctive designation and the maximum number of shares in the series;
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the
number of shares we are offering and purchase price per share;
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the
liquidation preference, if any;
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the
terms on which dividends, if any, will be paid;
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the
voting rights, if any, on the shares of the series;
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the
terms and conditions, if any, on which the shares of the series shall be convertible into, or exchangeable for, shares of
any other class or classes of capital stock;
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the
terms on which the shares may be redeemed, if at all;
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any
listing of the preferred stock on any securities exchange or market;
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a
discussion of any material or special United States federal income tax considerations applicable to the preferred stock; and
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any
or all other preferences, rights, restrictions, including restrictions on transferability, and qualifications of shares of
the series.
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The
issuance of preferred stock may delay, deter or prevent a change in control.
The
description of preferred stock above and the description of the terms of a particular series of preferred stock in any applicable
prospectus supplement are not complete. You should refer to the applicable certificate of designation for complete information.
The
DGCL provides that the holders of preferred stock will have the right to vote separately as a class on any proposal involving
fundamental changes in the rights of holders of that preferred stock. This right is in addition to any voting rights that may
be provided for in the applicable certificate of designation.
Anti-Takeover
Effects of Provisions of our Charter Documents and Delaware Law
Provisions
of the DGCL, our restated certificate of incorporation and our bylaws could make it more difficult to acquire us by means of a
tender offer, a proxy contest or otherwise, or to remove incumbent officers and directors. These provisions, summarized below,
are expected to discourage certain types of coercive takeover practices and takeover bids that our board of directors may consider
inadequate and to encourage persons seeking to acquire control of us to first negotiate with our board of directors. We believe
that the benefits of increased protection of our ability to negotiate with the proponent of an unfriendly or unsolicited proposal
to acquire or restructure us outweigh the disadvantages of discouraging takeover or acquisition proposals because, among other
things, negotiation of these proposals could result in an improvement of their terms. This summary does not purport to be complete
and is qualified in its entirety by reference to the DGCL and our restated certificate of incorporation and bylaws.
Certificate
of Incorporation and Bylaws
Preferred
Stock
. Under our restated certificate of incorporation, our board of directors has the power to authorize the issuance of
up to 10,000,000 shares of preferred stock, and to determine the price, rights, preferences, privileges and restrictions, including
voting rights, of those shares without further vote or action by our stockholders. As of December 16, 2016, 5,000,000 shares of
our authorized preferred stock have been designated as Series A Convertible Preferred Stock, of which 156,112 are outstanding.
The
issuance of preferred stock may:
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delay,
defer or prevent a change in control;
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discourage
bids for our common stock at a premium over the market price of our common stock;
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adversely
affect the voting and other rights of the holders of our common stock; and
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discourage
acquisition proposals or tender offers for our shares and, as a consequence, inhibit fluctuations in the market price of our
shares that could result from actual or rumored takeover attempts.
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Advance
Notice Requirement
. Stockholder nominations of individuals for election to our board of directors and stockholder proposals
of other matters to be brought before an annual meeting of our stockholders must comply with the advance notice procedures set
forth in our bylaws. Our bylaws provide that advance notice of a stockholder’s proposal must be delivered to our secretary
at our principal executive offices not less than 90 calendar days or more than 120 calendar days in advance of the anniversary
of the date the proxy statement for the previous year’s annual meeting of stockholders was released to our stockholders.
However, our bylaws also provide that in the event that no annual meeting was held in the previous year or the date of the annual
meeting is advanced by more than 30 days or delayed by more than 30 days after the anniversary of the previous year’s annual
meeting, this advance notice must be received no later than the close of business on the later of the 90th day before such annual
meeting or the 10th day following the day on which public announcement of the date of such meeting is first made.
Special
Meeting Requirements
. Our restated certificate of incorporation provides that except as required by law, special meetings
of stockholders may be called only by our board of directors acting pursuant to a resolution adopted by a majority of the entire
board of directors.
Stockholder
Action by Written Consent.
Our restated certificate of incorporation provides that stockholder action must be effected at
a duly called annual or special meeting of stockholders and may not be effected by written consent of stockholders.
No
Cumulative Voting
. Our restated certificate of incorporation does not include a provision for cumulative voting for directors.
Indemnification
.
Our restated certificate of incorporation and our bylaws provide that we will indemnify our officers and directors against losses
as they incur in investigations and legal proceedings resulting from their services to us, which may include service in connection
with takeover defense measures.
Removal
of Directors; Vacancies
. Our bylaws provide that directors may be removed from office, with our without cause, only by the
affirmative vote of the holders of at least 80% of our common stock, and that vacancies on our board of directors shall be filled
solely by the affirmative vote of the majority of the remaining directors then in office, even though less than a quorum of our
board of directors.
Amending
our Bylaws and Certain Provisions of our Restated Certificate of Incorporation
. The stockholder vote required to amend or
repeal the provisions in our bylaws is at least 66.6% of the voting power of our common stock. The stockholder vote required to
alter, amend or repeal the provisions in our restated certificate of incorporation requiring that special meetings of stockholders
be called only by our board of directors and prohibiting stockholder action by written consent or to adopt any provision inconsistent
with such provisions is at least 80% of the voting power of our common stock.
Delaware
Anti-Takeover Statute
We
are subject to Section 203 of the DGCL, an anti-takeover law. In general, Section 203 prohibits, with some exceptions, a publicly
held Delaware corporation from engaging in a “business combination” with any “interested stockholder”
for a period of three years following the date that stockholder became an interested stockholder, unless:
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prior
to that date, the board of directors of the corporation approved either the business combination or the transaction that resulted
in the stockholder becoming an interested stockholder;
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upon
consummation of the transaction that resulted in the stockholder becoming an interested stockholder, the interested stockholder
owned at least 85% of the voting stock of the corporation outstanding at the time the transaction commenced, excluding for
purposes of determining the number of shares of voting stock outstanding (but not the voting stock owned by the interested
stockholder) those shares owned by persons who are directors and officers and by excluding employee stock plans in which employee
participants do not have the right to determine whether shares held subject to the plan will be tendered in a tender or exchange
offer; or
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on
or subsequent to that date, the business combination is approved by the board of directors of the corporation and authorized
at an annual or special meeting of stockholders, and not by written consent, by the affirmative vote of at least 66-2/3% of
the outstanding voting stock that is not owned by the interested stockholder.
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Section
203 defines “business combination” to include any of the following:
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any
merger or consolidation involving the corporation and the interested stockholder;
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any
sale, transfer, pledge or other disposition of 10% or more of the assets of the corporation involving the interested stockholder;
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subject
to certain exceptions, any transaction that results in the issuance or transfer by the corporation of any stock of the corporation
to the interested stockholder;
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any
transaction involving the corporation that has the effect of increasing the proportionate share of the stock of any class
or series of the corporation beneficially owned by the interested stockholder; or
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the
receipt by the interested stockholder of the benefit of any loans, advances, guarantees, pledges or other financial benefits
provided by or through the corporation.
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In
general, Section 203 defines an “interested stockholder” as any person who, together with the person’s affiliates
and associates, beneficially owns, or within three years prior to the determination of interested stockholder status did beneficially
own, 15% or more of the outstanding voting stock of the corporation.
The
above provisions may deter a hostile takeover or delay a change in control of management or us.
DESCRIPTION
OF DEBT SECURITIES
General
The
debt securities that we may issue may constitute debentures, notes, bonds or other evidences of indebtedness of our company, and
may be issued in one or more series, which may include senior debt securities, subordinated debt securities and senior subordinated
debt securities. The particular terms of any series of debt securities we may offer, including the extent to which the general
terms set forth below may be applicable to a particular series, will be described in a prospectus supplement relating to such
series.
Debt
securities that we may issue may be issued under a senior indenture between us and a trustee, or a subordinated indenture between
us and a trustee (collectively, the “indentures”). We have filed forms of the indentures as exhibits to the registration
statement of which this prospectus is a part. Supplemental indentures and forms of debt securities containing the terms of the
debt securities being offered will be filed as exhibits to the registration statement of which this prospectus is a part or will
be incorporated by reference from reports that we file with the SEC.
THE
FOLLOWING DESCRIPTION IS A SUMMARY OF THE MATERIAL PROVISIONS OF THE INDENTURES. IT DOES NOT RESTATE THE INDENTURES IN THEIR ENTIRETY.
THE INDENTURES ARE GOVERNED BY THE TRUST INDENTURE ACT OF 1939. THE TERMS OF THE DEBT SECURITIES INCLUDE THOSE STATED IN THE INDENTURES
AND THOSE MADE PART OF THE INDENTURES BY REFERENCE TO THE TRUST INDENTURE ACT. WE URGE YOU TO READ THE INDENTURES BECAUSE THEY,
AND NOT THIS DESCRIPTION, DEFINE YOUR RIGHTS AS A HOLDER OF THE DEBT SECURITIES. EXCEPT AS WE MAY OTHERWISE INDICATE, THE TERMS
OF THE SENIOR INDENTURE AND THE SUBORDINATED INDENTURE ARE IDENTICAL.
The
indentures contain no covenant or provision which affords debt holders protection in the event of a highly leveraged transaction.
Information
You Will Find in the Prospectus Supplement
The
indentures provide that we may issue debt securities from time to time in one or more series by resolution of our board of directors
or by means of a supplemental indenture, and that we may denominate the debt securities and make them payable in foreign currencies.
The indentures do not limit the aggregate principal amount of debt securities that can be issued thereunder. We may specify a
maximum aggregate principal amount for the debt securities of any series. We will describe in the applicable prospectus supplement
the terms of the series of debt securities being offered, including:
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the
title;
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the
principal amount being offered, and if a series, the total amount authorized and the total amount outstanding;
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any
limit on the amount that may be issued;
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whether
or not we will issue the series of debt securities in global form, and, if so, the terms and who the depositary will be;
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the
maturity date;
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whether
and under what circumstances, if any, we will pay additional amounts on any debt securities held by a person who is not a
United States person for tax purposes, and whether we can redeem the debt securities if we have to pay such additional amounts;
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the
annual interest rate, which may be fixed or variable, or the method for determining the rate and the date interest will begin
to accrue, the dates interest will be payable and the regular record dates for interest payment dates or the method for determining
such dates;
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whether
or not the debt securities will be secured or unsecured, and the terms of any secured debt;
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the
terms of the subordination of any series of subordinated debt;
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the
place where payments will be payable;
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restrictions
on transfer, sale or other assignment, if any;
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our
right, if any, to defer payment of interest and the maximum length of any such deferral period;
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the
date, if any, after which, and the price at which, we may, at our option, redeem the series of debt securities pursuant to
any optional or provisional redemption provisions and the terms of those redemption provisions;
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the
date, if any, on which, and the price at which we are obligated, pursuant to any mandatory sinking fund or analogous fund
provisions or otherwise, to redeem, or at the holder’s option, to purchase, the series of debt securities and the currency
or currency unit in which the debt securities are payable;
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whether
the indenture will restrict our ability or the ability of our subsidiaries to:
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incur
additional indebtedness;
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issue
additional securities;
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create
liens;
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pay
dividends or make distributions in respect of our capital stock or the capital stock of our subsidiaries, or redeem capital
stock;
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place
restrictions on our subsidiaries’ ability to pay dividends, make distributions or transfer assets;
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make
investments or other restricted payments;
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sell
or otherwise dispose of assets;
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enter
into sale-leaseback transactions;
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engage
in transactions with stockholders or affiliates;
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issue
or sell stock of our subsidiaries;
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effect
a consolidation or merger;
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whether
the indenture will require us to maintain any interest coverage, fixed charge, cash flow-based, asset-based or other financial
ratios;
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a
discussion of certain material or special United States federal income tax considerations applicable to the debt securities;
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information
describing any book-entry features;
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provisions
for a sinking fund purchase or other analogous fund, if any;
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the
applicability of the provisions in the indenture on discharge;
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whether
the debt securities are to be offered at a price such that they will be deemed to be offered at an “original issue discount”
as defined in paragraph (a) of Section 1273 of the Internal Revenue Code of 1986, as amended;
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the
denominations in which we will issue the series of debt securities, if other than denominations of $1,000 and any integral
multiple thereof;
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the
currency of payment of debt securities if other than U.S. dollars and the manner of determining the equivalent amount in U.S.
dollars; and
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any
other specific terms, preferences, rights or limitations of, or restrictions on, the debt securities, including any additional
events of default or covenants provided with respect to the debt securities, and any terms that may be required by us or advisable
under applicable laws or regulations.
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Conversion
or Exchange Rights
We
will set forth in the applicable prospectus supplement the terms on which a series of debt securities may be convertible into
or exchangeable for our common stock, our preferred stock or other securities (including securities of a third-party). We will
include provisions as to whether conversion or exchange is mandatory, at the option of the holder or at our option. We may include
provisions pursuant to which the number of shares of our common stock, our preferred stock or other securities (including securities
of a third-party) that the holders of the series of debt securities receive would be subject to adjustment.
Consolidation,
Merger or Sale
Unless
we provide otherwise in the prospectus supplement applicable to a particular series of debt securities, the indentures will not
contain any covenant that restricts our ability to merge or consolidate, or sell, convey, transfer or otherwise dispose of all
or substantially all of our assets. However, any successor to or acquirer of such assets must assume all of our obligations under
the indentures or the debt securities, as appropriate. If the debt securities are convertible into or exchangeable for our other
securities or securities of other entities, the person with whom we consolidate or merge or to whom we sell all of our property
must make provisions for the conversion of the debt securities into securities that the holders of the debt securities would have
received if they had converted the debt securities before the consolidation, merger or sale.
Events
of Default under the Indentures
Unless
otherwise indicated in the applicable prospectus supplement, the following will be events of default under the indentures with
respect to each series of debt securities issued under the indenture:
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if
we fail to pay interest when due and payable and our failure continues for 90 days and the time for payment has not been extended;
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if
we fail to pay the principal, premium or sinking fund payment, if any, when due and payable at maturity, upon redemption or
repurchase or otherwise, and the time for payment has not been extended;
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if
we fail to observe or perform any other covenant contained in the debt securities or the indentures, other than a covenant
specifically relating to another series of debt securities, and our failure continues for 90 days after we receive notice
from the trustee or we and the trustee receive notice from the holders of at least 25% in aggregate principal amount of the
outstanding debt securities of the applicable series; and
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if
specified events of bankruptcy, insolvency or reorganization occur.
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We
will describe in each applicable prospectus supplement any additional events of default relating to the relevant series of debt
securities.
If
an event of default with respect to debt securities of any series occurs and is continuing, other than an event of default specified
in the last bullet point above, the trustee or the holders of at least 25% in aggregate principal amount of the outstanding debt
securities of that series, by notice to us in writing, and to the trustee if notice is given by such holders, may declare the
unpaid principal, premium, if any, and accrued interest, if any, due and payable immediately. If an event of default specified
in the last bullet point above occurs with respect to us, the unpaid principal, premium, if any, and accrued interest, if any,
of each issue of debt securities then outstanding shall be due and payable without any notice or other action on the part of the
trustee or any holder.
The
holders of a majority in principal amount of the outstanding debt securities of an affected series may waive any default or event
of default with respect to the series and its consequences, except defaults or events of default regarding payment of principal,
premium, if any, or interest, unless we have cured the default or event of default in accordance with the indenture. Any waiver
shall cure the default or event of default.
Subject
to the terms of the indentures, if an event of default under an indenture shall occur and be continuing, the trustee will be under
no obligation to exercise any of its rights or powers under such indenture at the request or direction of any of the holders of
the applicable series of debt securities, unless such holders have offered the trustee reasonable indemnity or security satisfactory
to it against any loss, liability or expense. The holders of a majority in principal amount of the outstanding debt securities
of any series will have the right to direct the time, method and place of conducting any proceeding for any remedy available to
the trustee, or exercising any trust or power conferred on the trustee, with respect to the debt securities of that series, provided
that:
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the
direction so given by the holder is not in conflict with any law or the applicable indenture; and
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subject
to its duties under the Trust Indenture Act, the trustee need not take any action that might involve it in personal liability
or might be unduly prejudicial to the holders not involved in the proceeding.
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The
indentures provide that if an event of default has occurred and is continuing, the trustee will be required in the exercise of
its powers to use the degree of care that a prudent person would use in the conduct of its own affairs. The trustee, however,
may refuse to follow any direction that conflicts with law or the indenture, or that the trustee determines is unduly prejudicial
to the rights of any other holder of the relevant series of debt securities, or that would involve the trustee in personal liability.
Prior to taking any action under the indentures, the trustee will be entitled to indemnification against all costs, expenses and
liabilities that would be incurred by taking or not taking such action.
A
holder of the debt securities of any series will have the right to institute a proceeding under the indentures or to appoint a
receiver or trustee, or to seek other remedies only if:
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the
holder has given written notice to the trustee of a continuing event of default with respect to that series;
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the
holders of at least 25% in aggregate principal amount of the outstanding debt securities of that series have made written
request, and such holders have offered reasonable indemnity to the trustee or security satisfactory to it against any loss,
liability or expense or to be incurred in compliance with instituting the proceeding as trustee; and
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the
trustee does not institute the proceeding, and does not receive from the holders of a majority in aggregate principal amount
of the outstanding debt securities of that series other conflicting directions within 90 days after the notice, request and
offer.
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These
limitations do not apply to a suit instituted by a holder of debt securities if we default in the payment of the principal, premium,
if any, or interest on, the debt securities, or other defaults that may be specified in the applicable prospectus supplement.
We
will periodically file statements with the trustee regarding our compliance with specified covenants in the indentures.
The
indentures provide that if a default occurs and is continuing and is actually known to a responsible officer of the trustee, the
trustee must mail to each holder notice of the default within the earlier of 90 days after it occurs and 30 days after it is known
by a responsible officer of the trustee or written notice of it is received by the trustee, unless such default has been cured
or waived. Except in the case of a default in the payment of principal or premium of or interest on any debt security or certain
other defaults specified in an indenture, the trustee shall be protected in withholding such notice if and so long as the board
of directors, the executive committee or a trust committee of directors, or responsible officers of the trustee, in good faith
determine that withholding notice is in the best interests of holders of the relevant series of debt securities.
Modification
of Indenture; Waiver
Subject
to the terms of the indenture for any series of debt securities that we may issue, we and the trustee may change an indenture
without the consent of any holders with respect to the following specific matters:
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to
fix any ambiguity, defect or inconsistency in the indenture;
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to
comply with the provisions described above under “—Consolidation, Merger or Sale”;
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to
comply with any requirements of the SEC in connection with the qualification of any indenture under the Trust Indenture Act;
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to
add to, delete from or revise the conditions, limitations, and restrictions on the authorized amount, terms, or purposes of
issue, authentication and delivery of debt securities, as set forth in the indenture;
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to
provide for the issuance of and establish the form and terms and conditions of the debt securities of any series as provided
under “Description of Debt Securities — General,” to establish the form of any certifications required to
be furnished pursuant to the terms of the indenture or any series of debt securities, or to add to the rights of the holders
of any series of debt securities;
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to
evidence and provide for the acceptance of appointment hereunder by a successor trustee;
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to
provide for uncertificated debt securities and to make all appropriate changes for such purpose;
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to
add to our covenants such new covenants, restrictions, conditions or provisions for the benefit of the holders, to make the
occurrence, or the occurrence and the continuance, of a default in any such additional covenants, restrictions, conditions
or provisions an event of default or to surrender any right or power conferred to us in the indenture; or
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to
change anything that does not adversely affect the interests of any holder of debt securities of any series in any material
respect.
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In
addition, under the indentures, the rights of holders of a series of debt securities may be changed by us and the trustee with
the written consent of the holders of at least a majority in aggregate principal amount of the outstanding debt securities of
each series that is affected. However, subject to the terms of the indenture for any series of debt securities that we may issue
or otherwise provided in the prospectus supplement applicable to a particular series of debt securities, we and the trustee may
only make the following changes with the consent of each holder of any outstanding debt securities affected:
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extending
the stated maturity of the series of debt securities;
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reducing
the principal amount, reducing the rate of or extending the time of payment of interest, or reducing any premium payable upon
the redemption or repurchase of any debt securities; or
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reducing
the percentage of debt securities, the holders of which are required to consent to any amendment, supplement, modification
or waiver.
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Discharge
Each
indenture provides that, subject to the terms of the indenture and any limitation otherwise provided in the prospectus supplement
applicable to a particular series of debt securities, we can elect to be discharged from our obligations with respect to one or
more series of debt securities, except for specified obligations, including obligations to:
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register
the transfer or exchange of debt securities of the series;
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replace
stolen, lost or mutilated debt securities of the series;
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maintain
paying agencies;
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hold
monies for payment in trust;
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recover
excess money held by the trustee;
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compensate
and indemnify the trustee; and
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appoint
any successor trustee.
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In
order to exercise our rights to be discharged, we must deposit with the trustee money or government obligations sufficient to
pay all the principal of, any premium and interest on, the debt securities of the series on the dates payments are due.
Form,
Exchange and Transfer
We
will issue the debt securities of each series only in fully registered form without coupons and, unless we otherwise specify in
the applicable prospectus supplement, in denominations of $1,000 and any integral multiple thereof. The indentures provide that
we may issue debt securities of a series in temporary or permanent global form and as book-entry securities that will be deposited
with, or on behalf of, The Depository Trust Company or another depositary named by us and identified in a prospectus supplement
with respect to that series. See “Legal Ownership of Securities” below for a further description of the terms relating
to any book-entry securities.
At
the option of the holder, subject to the terms of the indentures and the limitations applicable to global securities described
in the applicable prospectus supplement, the holder of the debt securities of any series can exchange the debt securities for
other debt securities of the same series, in any authorized denomination and of like tenor and aggregate principal amount.
Subject
to the terms of the indentures and the limitations applicable to global securities set forth in the applicable prospectus supplement,
holders of the debt securities may present the debt securities for exchange or for registration of transfer, duly endorsed or
with the form of transfer endorsed thereon duly executed if so required by us or the security registrar, at the office of the
security registrar or at the office of any transfer agent designated by us for this purpose. Unless otherwise provided in the
debt securities that the holder presents for transfer or exchange, we will make no service charge for any registration of transfer
or exchange, but we may require payment of any taxes or other governmental charges.
We
will name in the applicable prospectus supplement the security registrar, and any transfer agent in addition to the security registrar,
that we initially designate for any debt securities. We may at any time designate additional transfer agents or rescind the designation
of any transfer agent or approve a change in the office through which any transfer agent acts, except that we will be required
to maintain a transfer agent in each place of payment for the debt securities of each series.
If
we elect to redeem the debt securities of any series, we will not be required to:
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issue,
register the transfer of, or exchange any debt securities of that series during a period beginning at the opening of business
15 days before the day of mailing of a notice of redemption of any debt securities that may be selected for redemption and
ending at the close of business on the day of the mailing; or
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register
the transfer of or exchange any debt securities so selected for redemption, in whole or in part, except the unredeemed portion
of any debt securities we are redeeming in part.
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Information
Concerning the Trustee
The
trustee, other than during the occurrence and continuance of an event of default under an indenture, undertakes to perform only
those duties as are specifically set forth in the applicable indenture and is under no obligation to exercise any of the powers
given it by the indentures at the request of any holder of debt securities unless it is offered reasonable security and indemnity
against the costs, expenses and liabilities that it might incur. However, upon an event of default under an indenture, the trustee
must use the same degree of care as a prudent person would exercise or use in the conduct of his or her own affairs.
Payment
and Paying Agents
Unless
we otherwise indicate in the applicable prospectus supplement, we will make payment of the interest on any debt securities on
any interest payment date to the person in whose name the debt securities, or one or more predecessor securities, are registered
at the close of business on the regular record date for the interest.
We
will pay principal of and any premium and interest on the debt securities of a particular series at the office of the paying agents
designated by us, except that unless we otherwise indicate in the applicable prospectus supplement, we will make interest payments
by check that we will mail to the holder or by wire transfer to certain holders. Unless we otherwise indicate in the applicable
prospectus supplement, we will designate the corporate trust office of the trustee as our sole paying agent for payments with
respect to debt securities of each series. We will name in the applicable prospectus supplement any other paying agents that we
initially designate for the debt securities of a particular series. We will maintain a paying agent in each place of payment for
the debt securities of a particular series.
All
money we pay to a paying agent or the trustee for the payment of the principal of or any premium or interest on any debt securities
that remains unclaimed at the end of two years after such principal, premium or interest has become due and payable will be repaid
to us, and the holder of the debt security thereafter may look only to us for payment thereof.
Governing
Law
The
indentures and the debt securities will be governed by and construed in accordance with the laws of the State of New York, except
to the extent that the Trust Indenture Act is applicable.
Ranking
Debt Securities
The
subordinated debt securities will be unsecured and will be subordinate and junior in priority of payment to certain other indebtedness
to the extent described in a prospectus supplement. The subordinated indenture does not limit the amount of subordinated debt
securities that we may issue. It also does not limit us from issuing any other secured or unsecured debt.
The
senior debt securities will be unsecured and will rank equally in right of payment to all our other senior unsecured debt. The
senior indenture does not limit the amount of senior debt securities that we may issue. It also does not limit us from issuing
any other secured or unsecured debt.
Existing
Debt
As
of December 16, 2016, we had approximately $1.6 million existing subordinated debt and approximately $6.5 million secured debt.
DESCRIPTION
OF WARRANTS
We
may issue warrants for the purchase of common stock, preferred stock or debt securities. Warrants may be offered independently
or together with common stock, preferred stock or debt securities offered by any prospectus supplement and may be attached to
or separate from those securities. While the terms we have summarized below will apply generally to any warrants that we may offer
under this prospectus, we will describe in particular the terms of any series of warrants that we may offer in more detail in
the applicable prospectus supplement and any applicable free writing prospectus. The terms of any warrants offered under a prospectus
supplement may differ from the terms described below.
We
will file as an exhibit to the registration statement of which this prospectus is a part, or will incorporate by reference from
another report that we file with the SEC, the form of warrant agreement, which may include a form of warrant certificate, that
describes the terms of the particular series of warrants we may offer before the issuance of the related series of warrants. We
may issue the warrants under a warrant agreement that we will enter into with a warrant agent to be selected by us. The warrant
agent will act solely as our agent in connection with the warrants and will not assume any obligation or relationship of agency
or trust for or with any registered holders of warrants or beneficial owners of warrants. The following summary of material provisions
of the warrants and warrant agreements are subject to, and qualified in their entirety by reference to, all the provisions of
the warrant agreement and warrant certificate applicable to a particular series of warrants. We urge you to read the applicable
prospectus supplement and any applicable free writing prospectus, as well as the complete warrant agreements and warrant certificates
that contain the terms of the warrants.
The
particular terms of any issue of warrants will be described in the prospectus supplement relating to the issue. Those terms may
include:
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the
title of such warrants;
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the
aggregate number of such warrants;
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the
price or prices at which such warrants will be issued;
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the
currency or currencies (including composite currencies) in which the price of such warrants may be payable;
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the
terms of the securities purchasable upon exercise of such warrants and the procedures and conditions relating to the exercise
of such warrants;
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the
price at which the securities purchasable upon exercise of such warrants may be purchased;
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the
date on which the right to exercise such warrants will commence and the date on which such right shall expire;
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any
provisions for adjustment of the number or amount of securities receivable upon exercise of the warrants or the exercise price
of the warrants;
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if
applicable, the minimum or maximum amount of such warrants that may be exercised at any one time;
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if
applicable, the designation and terms of the securities with which such warrants are issued and the number of such warrants
issued with each such security;
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if
applicable, the date on and after which such warrants and the related securities will be separately transferable;
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information
with respect to book-entry procedures, if any;
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the
terms of any rights to redeem or call the warrants;
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United
States federal income tax consequences of holding or exercising the warrants, if material; and
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any
other terms of such warrants, including terms, procedures and limitations relating to the exchange or exercise of such warrants.
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Each
warrant will entitle its holder to purchase the principal amount of debt securities or the number of shares of preferred stock
or common stock at the exercise price set forth in, or calculable as set forth in, the applicable prospectus supplement. Unless
we otherwise specify in the applicable prospectus supplement, holders of the warrants may exercise the warrants at any time up
to the specified time on the expiration date that we set forth in the applicable prospectus supplement. After the close of business
on the expiration date, unexercised warrants will become void.
We
will specify the place or places where, and the manner in which, warrants may be exercised in the warrant agreement or warrant
certificate and applicable prospectus supplement. Upon receipt of payment and the warrant certificate properly completed and duly
executed at the corporate trust office of the warrant agent or any other office indicated in the applicable prospectus supplement,
we will, as soon as practicable, issue and deliver the purchased securities. If less than all of the warrants represented by the
warrant certificate are exercised, a new warrant certificate will be issued for the remaining amount of warrants. If we so indicate
in the applicable prospectus supplement, holders of the warrants may surrender securities as all or part of the exercise price
for warrants.
Prior
to the exercise of any warrants to purchase common stock, preferred stock or debt securities, holders of the warrants will not
have any of the rights of holders of the common stock, preferred stock or debt securities purchasable upon exercise, including
(i) in the case of warrants for the purchase of common stock or preferred stock, the right to vote or to receive any payments
of dividends or payments upon our liquidation, dissolution or winding up on the common stock or preferred stock purchasable upon
exercise, if any; or (ii) in the case of warrants for the purchase of debt securities, the right to receive payments of principal
of, any premium or interest on the debt securities purchasable upon exercise or to enforce covenants in the applicable indenture.
As
of December 16, 2016, there were outstanding warrants to purchase 132,000 shares of our common stock.
DESCRIPTION
OF UNITS
The
following description, together with the additional information we may include in any applicable prospectus supplement, summarizes
the material terms and provisions of the units that we may offer under this prospectus. While the terms we have summarized below
will apply generally to any units that we may offer under this prospectus, we will describe the particular terms of any series
of units in more detail in the applicable prospectus supplement and any applicable free writing prospectus. The terms of any units
offered under a prospectus supplement may differ from the terms described below. However, no prospectus supplement will fundamentally
change the terms that are set forth in this prospectus or offer a security that is not registered and described in this prospectus
at the time of its effectiveness.
We
will file as an exhibit to the registration statement of which this prospectus is a part, or will incorporate by reference from
another report we file with the SEC, the form of unit agreement that describes the terms of the series of units we may offer under
this prospectus, and any supplemental agreements, before the issuance of the related series of units. The following summaries
of material terms and provisions of the units are subject to, and qualified in their entirety by reference to, all the provisions
of the unit agreement and any supplemental agreements applicable to a particular series of units. We urge you to read the applicable
prospectus supplement and any applicable free writing prospectus, as well as the complete unit agreement and any supplemental
agreements that contain the terms of the units.
General
We
may issue units comprised of one or more debt securities, shares of common stock, shares of preferred stock and warrants in any
combination. Each unit will be issued so that the holder of the unit is also the holder of each security included in the unit.
Thus, the holder of a unit will have the rights and obligations of a holder of each included security. The unit agreement under
which a unit is issued may provide that the securities included in the unit may not be held or transferred separately, at any
time or at any time before a specified date.
We
will describe in the applicable prospectus supplement the terms of the series of units, including, but not limited to:
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the
designation and terms of the units and of the securities comprising the units, including whether and under what circumstances
those securities may be held or transferred separately;
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any
provisions of the governing unit agreement that differ from those described below; and
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any
provisions for the issuance, payment, settlement, transfer or exchange of the units or of the securities comprising the units.
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The
provisions described in this section, as well as those described under “Description of Common Stock and Preferred Stock,”
“Description of Debt Securities” and “Description of Warrants” will apply to each unit and to any common
stock, preferred stock, debt security or warrant included in each unit, respectively.
Issuance
in Series
We
may issue units in such amounts and in numerous distinct series as we determine.
Enforceability
of Rights by Holders of Units
Each
unit agent will act solely as our agent under the applicable unit agreement and will not assume any obligation or relationship
of agency or trust with any holder of any unit. A single bank or trust company may act as unit agent for more than one series
of units. A unit agent will have no duty or responsibility in case of any default by us under the applicable unit agreement or
unit, including any duty or responsibility to initiate any proceedings at law or otherwise, or to make any demand upon us. Any
holder of a unit may, without the consent of the related unit agent or the holder of any other unit, enforce by appropriate legal
action its rights as holder under any security included in the unit.
We,
the unit agents and any of their agents may treat the registered holder of any unit certificate as an absolute owner of the units
evidenced by that certificate for any purpose and as the person entitled to exercise the rights attaching to the units so requested,
despite any notice to the contrary.
LEGAL
OWNERSHIP OF SECURITIES
We
can issue securities in registered form or in the form of one or more global securities. We describe global securities in greater
detail below. We refer to those persons who have securities registered in their own names on the books that we or any applicable
trustee or depositary or warrant agent maintain for this purpose as the “holders” of those securities. These persons
are the legal holders of the securities. We refer to those persons who, indirectly through others, own beneficial interests in
securities that are not registered in their own names, as “indirect holders” of those securities. As we discuss below,
indirect holders are not legal holders, and investors in securities issued in book-entry form or in “street name”
will be indirect holders.
Book-Entry
Holders
We
may issue securities in book-entry form only, as we will specify in the applicable prospectus supplement. This means securities
may be represented by one or more global securities registered in the name of a financial institution that holds them as depositary
on behalf of other financial institutions that participate in the depositary’s book-entry system. These participating institutions,
which are referred to as participants, in turn, hold beneficial interests in the securities on behalf of themselves or their customers.
Only
the person in whose name a security is registered is recognized as the holder of that security. Global securities will be registered
in the name of the depositary. Consequently, for global securities, we will recognize only the depositary as the holder of the
securities, and we will make all payments on the securities to the depositary. The depositary passes along the payments it receives
to its participants, which in turn pass the payments along to their customers who are the beneficial owners. The depositary and
its participants do so under agreements they have made with one another or with their customers; they are not obligated to do
so under the terms of the securities.
As
a result, investors in a global security will not own securities directly. Instead, they will own beneficial interests in a global
security, through a bank, broker or other financial institution that participates in the depositary’s book-entry system
or holds an interest through a participant. As long as the securities are issued in global form, investors will be indirect holders,
and not legal holders, of the securities.
Street
Name Holders
We
may terminate a global security or issue securities that are not issued in global form. In these cases, investors may choose to
hold their securities in their own names or in “street name.” Securities held by an investor in street name would
be registered in the name of a bank, broker or other financial institution that the investor chooses, and the investor would hold
only a beneficial interest in those securities through an account he or she maintains at that institution.
For
securities held in street name, we or any applicable trustee or depositary will recognize only the intermediary banks, brokers
and other financial institutions in whose names the securities are registered as the holders of those securities, and we or any
such trustee or depositary will make all payments on those securities to them. These institutions pass along the payments they
receive to their customers who are the beneficial owners, but only because they agree to do so in their customer agreements or
because they are legally required to do so. Investors who hold securities in street name will be indirect holders, not legal holders,
of those securities.
Legal
Holders
Our
obligations, as well as the obligations of any applicable trustee or third party employed by us or a trustee, run only to the
legal holders of the securities. We do not have obligations to investors who hold beneficial interests in global securities, in
street name or by any other indirect means. This will be the case whether an investor chooses to be an indirect holder of a security
or has no choice because we are issuing the securities only in global form.
For
example, once we make a payment or give a notice to the legal holder, we have no further responsibility for the payment or notice
even if that holder is required, under agreements with its participants or customers or by law, to pass it along to the indirect
holders but does not do so. Similarly, we may want to obtain the approval of the legal holders to amend an indenture, to relieve
us of the consequences of a default or of our obligation to comply with a particular provision of an indenture, or for other purposes.
In such an event, we would seek approval only from the legal holders, and not the indirect holders, of the securities. Whether
and how the legal holders contact the indirect holders is up to the legal holders.
Special
Considerations for Indirect Holders
If
you hold securities through a bank, broker or other financial institution, either in book-entry form because the securities are
represented by one or more global securities or in street name, you should check with your own institution to find out:
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it handles securities payments and notices;
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whether
it imposes fees or charges;
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how
it would handle a request for the legal holders’ consent, if ever required;
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whether
and how you can instruct it to send you securities registered in your own name so you can be a legal holder, if that is permitted
in the future;
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how
it would exercise rights under the securities if there were a default or other event triggering the need for legal holders
to act to protect their interests; and
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if
the securities are in book-entry form, how the depositary’s rules and procedures will affect these matters.
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Global
Securities
A
global security is a security that represents one or any other number of individual securities held by a depositary. Generally,
all securities represented by the same global securities will have the same terms.
Each
security issued in book-entry form will be represented by a global security that we issue to, deposit with and register in the
name of a financial institution or its nominee that we select. The financial institution that we select for this purpose is called
the depositary. Unless we specify otherwise in the applicable prospectus supplement, The Depository Trust Company, New York, New
York, known as DTC, will be the depositary for all securities issued in book-entry form.
A
global security may not be transferred to or registered in the name of anyone other than the depositary, its nominee or a successor
depositary, unless special termination situations arise. We describe those situations below under “—Special Situations
When A Global Security Will Be Terminated.” As a result of these arrangements, the depositary, or its nominee, will be the
sole registered owner and legal holder of all securities represented by a global security, and investors will be permitted to
own only beneficial interests in a global security. Beneficial interests must be held by means of an account with a broker, bank
or other financial institution that in turn has an account with the depositary or with another institution that does. Thus, an
investor whose security is represented by a global security will not be a legal holder of the security, but only an indirect holder
of a beneficial interest in the global security.
If
the prospectus supplement for a particular security indicates that the security will be issued as a global security, then the
security will be represented by a global security at all times unless and until the global security is terminated. If termination
occurs, we may issue the securities through another book-entry clearing system or decide that the securities may no longer be
held through any book-entry clearing system.
Special
Considerations For Global Securities
As
an indirect holder, an investor’s rights relating to a global security will be governed by the account rules of the investor’s
financial institution and of the depositary, as well as general laws relating to securities transfers. We do not recognize an
indirect holder as a holder of securities and instead deal only with the depositary that holds the global security.
If
securities are issued only as global securities, an investor should be aware of the following:
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an
investor cannot cause the securities to be registered in his or her name, and cannot obtain non-global certificates for his
or her interest in the securities, except in the special situations we describe below;
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an
investor will be an indirect holder and must look to his or her own bank or broker for payments on the securities and protection
of his or her legal rights relating to the securities, as we describe above;
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an
investor may not be able to sell interests in the securities to some insurance companies and to other institutions that are
required by law to own their securities in non-book-entry form;
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an
investor may not be able to pledge his or her interest in the global security in circumstances where certificates representing
the securities must be delivered to the lender or other beneficiary of the pledge in order for the pledge to be effective;
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the
depositary’s policies, which may change from time to time, will govern payments, transfers, exchanges and other matters
relating to an investor’s interest in the global security. We and any applicable trustee have no responsibility for
any aspect of the depositary’s actions or for its records of ownership interests in the global security. We and the
trustee also do not supervise the depositary in any way;
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the
depositary may, and we understand that DTC will, require that those who purchase and sell interests in the global security
within its book-entry system use immediately available funds, and your broker or bank may require you to do so as well; and
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financial
institutions that participate in the depositary’s book-entry system, and through which an investor holds its interest
in the global security, may also have their own policies affecting payments, notices and other matters relating to the securities.
There may be more than one financial intermediary in the chain of ownership for an investor. We do not monitor and are not
responsible for the actions of any of those intermediaries.
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Special
Situations When a Global Security Will Be Terminated
In
a few special situations described below, a global security will terminate and interests in it will be exchanged for physical
certificates representing those interests. After that exchange, the choice of whether to hold securities directly or in street
name will be up to the investor. Investors must consult their own banks or brokers to find out how to have their interests in
securities transferred to their own names, so that they will be direct holders. We have described the rights of holders and street
name investors above.
A
global security will terminate when the following special situations occur:
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if
the depositary notifies us that it is unwilling, unable or no longer qualified to continue as depositary for that global security
and we do not appoint another institution to act as depositary within 90 days;
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if
we notify any applicable trustee that we wish to terminate that global security; or
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if
an event of default has occurred with regard to securities represented by that global security and has not been cured or waived.
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The
applicable prospectus supplement may also list additional situations for terminating a global security that would apply only to
the particular series of securities covered by the prospectus supplement. When a global security terminates, the depositary, and
neither we nor any applicable trustee, is responsible for deciding the names of the institutions that will be the initial direct
holders.
PLAN
OF DISTRIBUTION
We
may sell the securities to or through underwriters or dealers, through agents, or directly to one or more purchasers. A prospectus
supplement or supplements (and any applicable free writing prospectus that we may authorize to be provided to you) will describe
the terms of the offering of the securities, including, to the extent applicable:
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the
name or names of any agents or underwriters;
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the
purchase price of the securities being offered and the proceeds we will receive from the sale;
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any
over-allotment options under which underwriters may purchase additional securities from us;
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any
agency fees or underwriting discounts and other items constituting agents’ or underwriters’ compensation;
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any
public offering price;
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any
discounts or concessions allowed or reallowed or paid to dealers; and
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any
securities exchanges or markets on which such securities may be listed.
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We
may distribute the securities from time to time in one or more transactions at:
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fixed
price or prices, which may be changed from time to time;
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market
prices prevailing at the time of sale;
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prices
related to such prevailing market prices; or
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negotiated
prices.
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Agents
We
may designate agents who agree to use their reasonable efforts to solicit purchases of our securities for the period of their
appointment or to sell our securities on a continuing basis. We will name any agent involved in the offering and sale of securities
and we will describe any commissions we will pay the agent in the applicable prospectus supplement.
Underwriters
If
we use underwriters for a sale of securities, the underwriters will acquire the securities for their own account. The underwriters
may resell the securities in one or more transactions, including negotiated transactions, at a fixed public offering price or
at varying prices determined at the time of sale. The obligations of the underwriters to purchase the securities will be subject
to the conditions set forth in the applicable underwriting agreement. Subject to certain conditions, the underwriters will be
obligated to purchase all the securities of the series offered if they purchase any of the securities of that series. We may change
from time to time any public offering price and any discounts or concessions the underwriters allow or reallow or pay to dealers.
We may use underwriters with whom we have a material relationship. We will describe the nature of any such relationship in any
applicable prospectus supplement naming any such underwriter. Only underwriters we name in the prospectus supplement are underwriters
of the securities offered by the prospectus supplement.
We
may provide agents and underwriters with indemnification against civil liabilities related to offerings under this prospectus,
including liabilities under the Securities Act, or contribution with respect to payments that the agents or underwriters may make
with respect to these liabilities.
Direct
Sales
We
may also sell securities directly to one or more purchasers without using underwriters or agents. Underwriters, dealers and agents
that participate in the distribution of the securities may be underwriters as defined in the Securities Act, and any discounts
or commissions they receive from us and any profit on their resale of the securities may be treated as underwriting discounts
and commissions under the Securities Act. We will identify in the applicable prospectus supplement any underwriters, dealers or
agents and will describe their compensation. We may have agreements with the underwriters, dealers and agents to indemnify them
against specified civil liabilities, including liabilities under the Securities Act. Underwriters, dealers and agents may engage
in transactions with or perform services for us in the ordinary course of their businesses.
Trading
Markets and Listing of Securities
Unless
otherwise specified in the applicable prospectus supplement, each class or series of securities will be a new issue with no established
trading market, other than our common stock, which is currently listed on the NYSE MKT. We may elect to list any other class or
series of securities on any exchange or market, but we are not obligated to do so. It is possible that one or more underwriters
may make a market in a class or series of securities, but the underwriters will not be obligated to do so and may discontinue
any market making at any time without notice. We cannot give any assurance as to the liquidity of the trading market for any of
the securities.
Stabilization
Activities
Any
underwriter may engage in overallotment, stabilizing transactions, short covering transactions and penalty bids in accordance
with Regulation M under the Exchange Act. Overallotment involves sales in excess of the offering size, which create a short position.
Stabilizing transactions permit bids to purchase the underlying security so long as the stabilizing bids do not exceed a specified
maximum. Short covering transactions involve purchases of the securities in the open market after the distribution is completed
to cover short positions. Penalty bids permit the underwriters to reclaim a selling concession from a dealer when the securities
originally sold by the dealer are purchased in a covering transaction to cover short positions. Those activities may cause the
price of the securities to be higher than it would otherwise be. If commenced, the underwriters may discontinue any of these activities
at any time.
Passive
Market Making
Any
underwriters who are qualified market makers on the NYSE MKT may engage in passive market making transactions in the securities
on the NYSE MKT in accordance with Rule 103 of Regulation M, during the business day prior to the pricing of the offering, before
the commencement of offers or sales of the securities. Passive market makers must comply with applicable volume and price limitations
and must be identified as passive market makers. In general, a passive market maker must display its bid at a price not in excess
of the highest independent bid for such security. If all independent bids are lowered below the passive market maker’s bid,
however, the passive market maker’s bid must then be lowered when certain purchase limits are exceeded.
FINRA
Matters
In
compliance with the guidelines of the Financial Regulatory Authority, or FINRA, the maximum aggregate value of all compensation
to be received by any FINRA member or independent broker-dealer will not exceed 8% of the gross proceeds from the sale of securities
pursuant to this prospectus and any applicable prospectus supplement.
If
more than 10% of the net proceeds of any offering of securities made under this prospectus will be received by FINRA members participating
in the offering or affiliates or associated persons of such FINRA members, the offering will be conducted in accordance with FINRA
Conduct Rule 5110(h).
LEGAL
MATTERS
The
validity of the securities being offered by this prospectus will be passed upon for us by Breakwater Law Group, LLP, Del Mar,
California. If the validity of any securities is also passed upon by counsel any underwriters, dealers or agents, that counsel
will be named in the prospectus supplement relating to that specific offering.
EXPERTS
The consolidated
financial statements of NTN Buzztime, Inc. as of December 31, 2015 and for each of the years in the two year period ended
December 31, 2015 incorporated in this Prospectus by reference from the NTN Buzztime, Inc. Annual Report on Form 10-K for the
year ended December 31, 2015 have been audited by Squar Milner LLP, an independent registered public accounting firm, as
stated in their report thereon, incorporated herein by reference, and have been incorporated in this Prospectus and
Registration Statement in reliance upon such report and upon the authority of such firm as experts in accounting and
auditing.
INFORMATION
INCORPORATED BY REFERENCE
The
SEC allows us to “incorporate by reference” into this prospectus the information we file with the SEC. This means
that we can disclose important information to you by referring you to those documents. Any statement contained in a document incorporated
by reference in this prospectus shall be deemed to be modified or superseded for purposes of this prospectus to the extent that
a statement contained herein, or in any subsequently filed document, which also is incorporated by reference herein, modifies
or supersedes such earlier statement. Any such statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this prospectus.
We
hereby incorporate by reference into this prospectus the following documents that we have filed with the SEC under the Exchange
Act File No. 001-11460 (other than current reports on Form 8-K, or portions thereof, furnished under Items 2.02 or 7.01 of Form
8-K):
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our
Annual Report on Form 10-K for the fiscal year ended December 31, 2015, filed with the SEC on March 15, 2016;
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those
portions of our Definitive Proxy Statement on Schedule 14A deemed incorporated into our Annual Report on Form 10-K for the
fiscal year ended December 31, 2015, filed with the SEC on April 22, 2016;
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our
Quarterly Reports on Form 10-Q for the fiscal quarters ended March 31, 2016, June 30, 2016 and September 30, 2016 filed with
the SEC on May 9, 2016, August 4, 2016 and November 9, 2016, respectively;
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our
Current Reports on Form 8-K filed with the SEC on January 22, 2016, January 28, 2016, February 2, 2016, February 11, 2016,
February 29, 2016, March 11, 2016 (as amended by our Form 8-K/A filed on March 14, 2016), March 16, 2016, April 13, 2016, May
12, 2016, June 7, 2016, June 17, 2016, September 7, 2016, November 1, 2016, November 4, 2016 and December 7, 2016; and
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the
description of our common stock contained in our registration statement on Form 8-A, registering our common stock under the
Exchange Act, filed with the SEC on October 14, 1992, pursuant to Section 12 of the Exchange Act, including any amendment
or report filed for the purpose of updating such description.
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All
documents that we file with the SEC pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act (other than current reports
on Form 8-K, or portions thereof, furnished under Items 2.02 or 7.01 of Form 8-K) (i) after the initial filing date of the registration
statement of which this prospectus forms a part and prior to the effectiveness of such registration statement and (ii) after the
date of this prospectus and prior to the termination of the offering shall be deemed to be incorporated by reference in this prospectus
from the date of filing of the documents, unless we specifically provide otherwise. Information that we file with the SEC will
automatically update and may replace information previously filed with the SEC. To the extent that any information contained in
any current report on Form 8-K or any exhibit thereto, was or is furnished to, rather than filed with the SEC, such information
or exhibit is specifically not incorporated by reference.
Upon
written or oral request made to us at the address or telephone number below, we will, at no cost to the requester, provide to
each person, including any beneficial owner, to whom this prospectus is delivered, a copy of any or all of the information that
has been incorporated by reference in this prospectus (other than an exhibit to a filing, unless that exhibit is specifically
incorporated by reference into that filing), but not delivered with this prospectus. You may also access this information on our
website at http://www.buzztime.com/investor-relations/-sec-filings.html. No additional information on our website is deemed to
be part of or incorporated by reference into this prospectus. We have included our website address in this prospectus solely as
an inactive textual reference.
NTN
Buzztime, Inc.
2231
Rutherford Road, Suite 200
Carlsbad,
California 92008
(760)
438-7400
Attention:
Corporate Secretary
WHERE
YOU CAN FIND MORE INFORMATION
As
permitted by SEC rules, this prospectus omits certain information that is included in the registration statement of which this
prospectus forms a part and its exhibits. Since this prospectus may not contain all of the information that you may find important,
you should review the full text of these documents. If we have filed a contract, agreement or other document as an exhibit to
the registration statement of which this prospectus forms a part, you should read the exhibit for a more complete understanding
of the document or matter involved. Each statement in this prospectus, including statements incorporated by reference as discussed
above, regarding a contract, agreement or other document is qualified in its entirety by reference to the actual document.
We
are subject to the information reporting requirements of the Exchange Act, and, in accordance with these requirements, we file
annual, quarterly and current reports, proxy statements, and other information with the SEC. You may inspect, read and copy the
reports and other information we file with the SEC at the SEC’s Public Reference Room located at 100 F Street, N.E., Washington,
D.C. You may obtain information on the operation of the Public Reference Room by calling the SEC at 1-800-SEC-0330. The SEC also
maintains an internet website at http://www.sec.gov that contains our filed reports, proxy and information statements, and other
information that we file electronically with the SEC. Additionally, we make these filings available, free of charge, on our website
at http://www.buzztime.com/investor-relations/-sec-filings.html as soon as reasonably practicable after we electronically file
such materials with, or furnish them to, the SEC. The information on our website, other than these filings, is not, and should
not be, considered part of this prospectus, is not incorporated by reference into this prospectus, and should not be relied upon
in connection with making any investment decision with respect to our securities.
NTN
Buzztime, Inc.
$25,000,000
Common
Stock
Preferred
Stock
Debt
Securities
Warrants
Units
PROSPECTUS
________________,
2016
PART
II
INFORMATION
NOT REQUIRED IN PROSPECTUS
Item
14.
Other Expenses of Issuance and Distribution
The
following table sets forth fees and expenses payable by the registrant, other than underwriting discounts and commissions, in
connection with the issuance and distribution of the securities being registered hereby.
SEC
registration fee
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$
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1,131
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Legal
fees and expenses
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*
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Printing
fees and expenses
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*
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Accounting
fees and expenses
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*
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Transfer
agent’s and trustee’s fees and expenses
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*
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Other
fees and expenses
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*
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Total
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$
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*
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*These
fees or expenses cannot be estimated at this time, as they are calculated based on the securities offered and the number of issuances.
An estimate of the aggregate expenses in connection with the sale and distribution of the securities being offered will be included
in the applicable prospectus supplement.
Item
15.
Indemnification of Directors and Officers
Section
145 of the Delaware General Corporation Law (the “DGCL”) provides, in summary, that directors and officers of Delaware
corporations are entitled, under certain circumstances, to be indemnified against all expenses and liabilities (including attorneys’
fees) incurred by them as a result of suits brought against them in their capacity as directors or officers if they acted in good
faith and in a manner they reasonably believed to be in or not opposed to the company’s best interests and, with respect
to any criminal action or proceeding, if they had no reasonable cause to believe their conduct was unlawful; provided that no
indemnification may be made against expenses in respect of any claim, issue, or matter as to which they shall have been adjudged
to be liable to us, unless and only to the extent that the court in which such action or suit was brought shall determine upon
application that, despite the adjudication of liability but in view of all the circumstances of the case, they are fairly and
reasonably entitled to indemnity for such expenses as the court shall deem proper. Any such indemnification may be made by us
only as authorized in each specific case upon a determination by the stockholders, disinterested directors, or independent legal
counsel that indemnification is proper because the indemnitee has met the applicable standard of conduct.
Section
102(b)(7) of the DGCL permits a corporation to provide in its certificate of incorporation that a director of the corporation
shall not be personally liable to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director
except for liability for any breach of the director’s duty of loyalty to the corporation or its stockholders, for acts or
omissions not in good faith or that involve intentional misconduct or a knowing violation of law, for unlawful payments of dividends,
or unlawful stock repurchases, redemptions, or other distributions, or for any transaction from which the director derived an
improper personal benefit.
We
have entered into indemnity agreements with each of our directors and executive officers. The indemnity agreements provide that
we will indemnify these individuals under certain circumstances against certain liabilities and expenses they may incur in their
capacities as our directors or officers. We believe that the use of such indemnity agreements is customary among corporations
and that the terms of the indemnity agreements are reasonable and fair to us, and are in our best interests to attract and retain
experienced directors and officers.
We
also maintain a general liability insurance policy which covers certain liabilities of directors and officers of our company arising
out of claims based on acts or omissions in their capacities as directors or officers.
Item
16.
Exhibits
The
list of exhibits in the Exhibit Index to this registration statement is incorporated herein by reference.
Item
17.
Undertakings
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(a)
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The
undersigned registrant hereby undertakes:
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(1)
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To
file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
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(i)
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To
include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;
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(ii)
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To
reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information
set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered
(if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low
or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant
to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20 percent change in the maximum
aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration
statement; and
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(iii)
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To
include any material information with respect to the plan of distribution not previously disclosed in the registration statement
or any material change to such information in the registration statement;
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Provided,
however, that paragraphs (a)(1)(i), (a)(1)(ii) and (a)(1)(iii) do not apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement,
or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement;
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(2)
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That,
for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof;
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(3)
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To
remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold
at the termination of the offering;
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(4)
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That,
for the purpose of determining liability under the Securities Act of 1933 to any purchaser:
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(A)
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Each
prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as
of the date the filed prospectus was deemed part of and included in the registration statement; and
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(B)
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Each
prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5) or (b)(7) as part of a registration statement in reliance
on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii) or (x) for the purpose of providing the information
required by Section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement
as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract
of sale of securities in the offering described in prospectus. As provided in Rule 430B, for liability purposes of the issuer
and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration
statement relating to the securities in the registration statement to which the prospectus relates, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering thereof. Provided, however, that no statement
made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated
or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement
will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that
was made in the registration statement or prospectus that was part of the registration statement or made in any such document
immediately prior to such effective date; and
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(5)
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That,
for the purpose of determining liability of the registrant under the Securities Act of 1933 to any purchaser in the initial
distribution of the securities, the undersigned registrant undertakes that in a primary offering of securities of the undersigned
registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the
purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned
registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
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(i)
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Any
preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant
to Rule 424;
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(ii)
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Any
free writing prospectus relating to the offering prepared by or on behalf of the undersigned Registrant or used or referred
to by the undersigned registrant;
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(iii)
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The
portion of any other free writing prospectus relating to the offering containing material information about the undersigned
registrant or its securities provided by or on behalf of an undersigned registrant; and
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(iv)
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Any
other communication that is an offer in the offering made by the undersigned registrant to the purchaser.
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(b)
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The
undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933,
each filing of the registrant’s annual report pursuant to section 13(a) or section 15(d) of the Securities Exchange
Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to section 15(d)
of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to
be a new registration statement relating to the securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
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(c)
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Insofar
as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the
opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and
is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment
by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful
defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with
the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against
public policy as expressed in the Act and will be governed by the final adjudication of such issue.
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(d)
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The
undersigned registrant hereby undertakes that:
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(1)
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For
purposes of determining any liability under the Securities Act of 1933, the information omitted from the form of prospectus
filed as part of this registration statement in reliance upon Rule 430A and contained in a form of prospectus filed by the
registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be part of this registration
statement as of the time it was declared effective.
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(2)
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For
the purpose of determining any liability under the Securities Act of 1933, each post-effective amendment that contains a form
of prospectus shall be deemed to be a new registration statement relating to the securities offered therein, and the offering
of such securities at that time shall be deemed to be the initial bona fide offering thereof.
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(e)
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The
undersigned registrant hereby undertakes to file an application for the purpose of determining the eligibility of the trustee
to act under subsection (a) of Section 310 of the Trust Indenture Act in accordance with the rules and regulations prescribed
by the Commission under Section 305(b)(2) of the Act.
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SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf
by the undersigned, thereunto duly authorized, in the City of Carlsbad, State of California, on December 22, 2016.
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NTN
BUZZTIME, INC.
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By:
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/s/
Allen Wolff
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Allen
Wolff
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Chief
Financial Officer and Executive VP
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KNOW
ALL MEN BY THESE PRESENTS, that each of the undersigned officers and directors of NTN Buzztime, Inc. hereby constitutes and appoints
Ram Krishnan or Allen Wolff his or her true and lawful attorney-in-fact and agent, with full power of substitution, for
him or her and on his or her behalf and in his or her name, place and stead, in any and all capacities, to sign, execute and file
this registration statement under the Securities Act of 1933, as amended, and any or all amendments (including, without limitation,
post-effective amendments) and any registration statement filed under Rule 462 under the Securities Act of 1933, as amended, with
all exhibits and any and all documents required to be filed with respect thereto, with the Securities and Exchange Commission
or any regulatory authority, granting unto such attorney-in-fact and agent, full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the premises in order to effectuate the same, as fully to
all intents and purposes as he or she himself or herself might or could do, if personally present, hereby ratifying and confirming
all that said attorney-in-fact and agent, or his or her substitute or substitutes, may lawfully do or cause to be done.
Pursuant
to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the
capacities and on the date indicated.
Signature
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Title
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Date
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/s/
Ram Krishnan
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Chief
Executive Officer and Director (Principal Executive Officer)
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December
22, 2016
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Ram
Krishnan
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/s/
Allen Wolff
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Chief
Financial Officer and Executive Vice President
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December
22, 2016
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Allen
Wolff
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(Principal
Financial Officer)
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/s/
Sandra Gurrola
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Vice
President of Finance (Principal Accounting Officer)
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December
22, 2016
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Sandra
Gurrola
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/s/
Jeff Berg
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Chairman
of the Board of Directors
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December
22, 2016
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Jeff
Berg
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/s/
Mary Beth Lewis
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Director
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December
22, 2016
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Mary
Beth Lewis
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/s/
Steve Mitgang
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Director
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December
22, 2016
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Steve
Mitgang
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/s/
Tony Uphoff
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Director
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December
22, 2016
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Tony
Uphoff
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/s/
Paul Yanover
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Director
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December
22, 2016
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Paul
Yanover
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EXHIBIT
INDEX
Exhibit
No.
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Description
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1.1
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Form
of Underwriting Agreement
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|
To
be filed by amendment or as an exhibit to a report pursuant to Section 13(a), 13(c) or 15(d) of the Exchange Act
|
3.1
|
|
Restated
Certificate of Incorporation
|
|
Previously
filed as an exhibit to the registrant’s Form 10-Q filed on August 14, 2013 and incorporated herein by reference.
|
3.2
|
|
Certificate
of Amendment to the Restated Certificate of Incorporation
|
|
Previously
filed as an exhibit to the registrant’s Form 8-K filed on June 17, 2016 and incorporated herein by reference.
|
3.3
|
|
Bylaws
|
|
Previously
filed as an exhibit to the registrant’s Form 10-K filed on March 26, 2008 and incorporated herein by reference.
|
4.1
|
|
Specimen
Common Stock Certificate
|
|
Previously
filed as an exhibit to the registrant’s Form 8-K filed on June 17, 2016, and incorporated herein by reference.
|
4.2
|
|
Form
of Warrant
|
|
To
be filed by amendment or as an exhibit to a report pursuant to Section 13(a), 13(c) or 15(d) of the Exchange Act
|
4.3
|
|
Form
of Unit Agreement
|
|
To
be filed by amendment or as an exhibit to a report pursuant to Section 13(a), 13(c) or 15(d) of the Exchange Act
|
4.4
|
|
Form
of Preferred Stock Certificate
|
|
To
be filed by amendment or as an exhibit to a report pursuant to Section 13(a), 13(c) or 15(d) of the Exchange Act
|
4.5
|
|
Form
of Certificate of Designation with respect to Preferred Stock
|
|
To
be filed by amendment or as an exhibit to a report pursuant to Section 13(a), 13(c) or 15(d) of the Exchange Act
|
4.6
|
|
Form
of Senior Indenture
|
|
Filed
herewith
|
4.7
|
|
Form
of Subordinated Indenture
|
|
Filed
herewith
|
4.8
|
|
Form
of Senior Note
|
|
To
be filed by amendment or as an exhibit to a report pursuant to Section 13(a), 13(c) or 15(d) of the Exchange Act
|
4.9
|
|
Form
of Subordinated Note
|
|
To
be filed by amendment or as an exhibit to a report pursuant to Section 13(a), 13(c) or 15(d) of the Exchange Act
|
5.1
|
|
Opinion
of Breakwater Law Group, LLP
|
|
Filed
herewith
|
23.1
|
|
Consent
of Squar Milner LLP, independent registered public accounting firm
|
|
Filed
herewith
|
23.2
|
|
Consent
of Breakwater Law Group, LLP
|
|
Included
in Exhibit 5.1
|
24.1
|
|
Power
of Attorney
|
|
Included
on the signature page to the registration statement
|
25.1
|
|
Statement
of Eligibility on Form T-1 under the Trust Indenture Act of 1939, as amended, of the trustee of the Senior Indenture
|
|
To
be filed by amendment or as an exhibit to a report pursuant to Section 13(a), 13(c) or 15(d) of the Exchange Act
|
25.2
|
|
Statement
of Eligibility on Form T-1 under the Trust Indenture Act of 1939, as amended, of the trustee of the Subordinated Indenture
|
|
To
be filed by amendment or as an exhibit to a report pursuant to Section 13(a), 13(c) or 15(d) of the Exchange Act
|
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