ntn_10k-ex404.htm


    
      

    

     

     

    Exhibit
4.4

     

    


     

    NTN
BUZZTIME INC.

    WARRANT

     

    May
11, 2009

     

    NEITHER
THIS WARRANT NOR THE SHARES OF STOCK ISSUABLE UPON EXERCISE OF THIS WARRANT HAVE
BEEN REGISTERED WITH THE SEC UNDER SECTION 5 OF THE UNITED STATES SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), IN RELIANCE UPON ONE OR MORE
EXEMPTIONS FROM REGISTRATION OR QUALIFICATION AFFORDED BY THE SECURITIES ACT
AND/OR RULES PROMULGATED BY THE SEC PURSUANT THERETO. NEITHER THIS WARRANT NOR
THE SHARES OF STOCK ISSUABLE UPON EXERCISE OF THIS WARRANT HAVE BEEN REGISTERED
OR QUALIFIED (AS THE CASE MAY BE) UNDER THE SECURITIES LAWS OF ANY STATE OR
TERRITORY OF THE UNITED STATES (THE "BLUE SKY LAWS"), IN RELIANCE UPON ONE OR
MORE EXEMPTIONS FROM REGISTRATION OR QUALIFICATION (AS THE CASE MAY BE) AFFORDED
UNDER SUCH SECURITIES LAWS.

     

    This
Warrant is being issued in connection with that certain Asset Purchase Agreement
(the "Purchase
Agreement") of even date herewith by and between NTN Buzztime, Inc., a
Delaware corporation ("Company") and Instant Access
Media, LLC, a Colorado limited liability company ("IAM"), pursuant to which
Company is acquiring from IAM certain assets, and is assuming certain
liabilities, related to the business of IAM. Pursuant to an instruction letter
of even date herewith given by IAM to Company, IAM has instructed Company to
issue this Warrant to ________________ or its permitted assigns ("Holder").

     

    THIS
CERTIFIES THAT, for value received, Holder is entitled, subject to the terms and
conditions of this Warrant, at any time following the Effective Date and before
5:30 P.M. San Diego, California time on the Expiration Date, to purchase from
Company, ____________ shares of Common Stock (such shares and all other shares
issued or issuable pursuant to this Warrant referred to hereinafter as "Warrant Shares") at a price of
$[___] per share (such price, as adjusted hereunder, the "Exercise Price").

     

    1.  Definitions: As used in this
Warrant, the following terms shall have the following respective
meanings:

     

    "Common Stock" means the common
stock, $0.005 par value, of the Company.

     

    "Convertible Securities" means
evidences of indebtedness, shares of stock or other securities which are
convertible into or exchangeable for, with or without payment of additional
consideration, shares of Common Stock, either immediately or upon the arrival of
a specified date or the happening of a specified event or both.

     

    "Effective Date" means the date
hereof.

     

    "Exercise Date" means, in the
case of an exercise pursuant to Section 2.1, the date on which the aggregate
Exercise Price is received by the Company, together with delivery of the Notice
of Exercise and this Warrant, in accordance with Section 2.1, and, in the case
of an exercise pursuant to Section 2.2, the date on which the Notice of Exercise
and this Warrant are delivered to the Company in accordance with Section
2.2.

     

     

    
      
        
        

      

      
        - 1-


        
          

        

      

      
        
        

      

    

     

    "Expiration Date" means the
eight year anniversary of the Effective Date.

     

    "Fair Market Value" of a share
of Common Stock as of a particular date means:

     

    
      	
               
      

            	
              (a)

            	
              If
      the Common Stock is then listed or quoted on a Trading Market, the Fair
      Market Value shall be deemed to be the average of the closing price of the
      Common Stock on such Trading Market over the ten (10) Trading Days ending
      on the Trading Day immediately prior to the Exercise
  Date;

            


    

     

    
      	
               
      

            	
              (b)

            	
              If
      the Common Stock is not then quoted or listed on a Trading Market and if
      prices for the Common Stock are then reported in the "Pink Sheets"
      published by Pink Sheets, LLC (or a similar organization or agency
      succeeding to its functions of reporting prices), the most recent bid
      price per share of the Common Stock so reported;
  and

            


    

     

    
      	
               
      

            	
              (c)

            	
              If
      the Common Stock is not then quoted or listed on a Trading Market and if
      prices for the Common Stock are not then reported in the "Pink Sheets,"
      the Fair Market Value shall be the value thereof, as agreed upon by the
      Company and the Holder; provided, however, that if the Company and the
      Holder cannot agree on such value, such value shall be determined by an
      independent valuation firm experienced in valuing businesses such as the
      Company and jointly selected in good faith by the Company and the
      Holder.  Fees and expenses of the valuation firms shall be paid
      equally by the Company and the
Holder.

            


    

     

    "Fundamental Transaction" means
(i) any consolidation or merger of the Company with or into any other
corporation or other entity or person, or any other corporate reorganization, in
which the stockholders of the Company immediately prior to such consolidation,
merger or reorganization own less than 50% of the voting power of the surviving
entity immediately after such consolidation, merger or reorganization, or the
Common Stock is converted into or exchanged for securities, cash or other
property (ii) any transaction or series of related transactions to which the
Company is a party in which in excess of 50% of the Company’s voting power is
transferred or (iii) any sale, lease, exclusive license or other transfer (in
one transaction or a series of related transactions) of all or substantially all
of the Company’s assets to any person or group of related persons (other than to
any of the Company’s wholly owned subsidiaries.

     

    "Person" means any individual,
sole proprietorship, partnership, joint venture, trust, unincorporated
association, corporation, limited liability company, entity, including any
governmental authority or political subdivision thereof.

     

    "SEC" means the United States
Securities and Exchange Commission.

     

    "Trading Day" means a day on
which the NYSE Amex is open for trading.

     

    "Trading Market" means the
following markets or exchanges on which the Common Stock is listed or quoted for
trading on the date in question: the NYSE Amex, the Nasdaq Capital Market, the
Nasdaq Global Market, the Nasdaq Global Select Market, the New York Stock
Exchange or the OTC Bulletin Board.

     

     

    
      
        
        

      

      
        - 2-


        
          

        

      

      
        
        

      

    

     

    "Transfer" means any sale,
assignment, transfer, conveyance, pledge, hypothecation or other disposition,
voluntarily or involuntarily, by operation of law, with or without
consideration, or otherwise (including by way of intestacy, will, gift,
bankruptcy, receivership, levy, execution, charging order or other similar sale
or seizure by legal process).

     

    "Warrant" means this Warrant
and any warrant delivered in substitution or exchange therefor as provided
herein.

     

    2.  Exercise.

     

    2.1 Payment.  Subject
to compliance with the terms and conditions of this Warrant and applicable
securities laws, this Warrant may be exercised, in whole or in part at any time
or from time to time, from and after the Effective Date and on or before the
Expiration Date by delivery of:

     

    
      	
               
      

            	
              (a)

            	
              the
      form of Notice of Exercise attached hereto as Exhibit 1 (the "Notice of Exercise"),
      duly executed by the Holder, to the Company at its principal
      office,

            


    

     

    
      	
               
      

            	
              (b)

            	
              this
      Warrant to the Company at its principal office,
  and

            


    

     

    
      	
               
      

            	
              (c)

            	
              payment
      in cash, by check or by wire transfer of an amount equal to the product
      obtained by multiplying the number of shares of Warrant Shares being
      purchased upon such exercise by the then effective Exercise
      Price.

            


    

     

    2.2  Cashless
Exercise.  In lieu of the payment methods set forth in Section
2.1(c) above, this Warrant may also be exercised, in whole or in part at any
time or from time to time, from and after the Effective Date and on or before
the Expiration Date, by means of a "cashless exercise" in which Holder shall be
entitled to receive a certificate for the number of Warrant Shares equal to the
quotient obtained by dividing [(A-B) (X)] by (A), where:

     

    
      	 	
              (A)

            	
              =

            	
              the
      Fair Market Value of one share of Common Stock on the Trading Day
      immediately preceding the Exercise Date

            
	 	
              (B)

            	
              =

            	
              the
      Exercise Price of one share of Warrant Shares (as adjusted to the date of
      such calculation)

            
	 	
              (X)

            	
              =

            	
              the
      number of Warrant Shares purchasable under this Warrant or, if only a
      portion of this Warrant is being exercised, the portion of this Warrant
      being canceled (at the date of such
calculation)

            


    

    


    If the
Holder elects to exchange this Warrant as provided in this Section 2.2, the
Holder shall tender the Warrant for the amount being exchanged, along with the
Notice of Exercise, duly executed by the Holder, to the Company at its then
principal office, and the Company shall issue to the Holder the number of shares
of the Warrant Shares computed using the formula above.

     

    2.3  Stock Certificates;
Fractional Shares.  As soon as practicable on or after any date
of exercise of this Warrant pursuant to this Section 2, the Company shall issue and deliver to Holder a
certificate or certificates for the number of whole shares of Warrant Shares
issuable upon such exercise, together with cash in lieu of any fraction of a
share equal to such fraction of the current Fair Market Value of one whole share
of Warrant Shares as of the date of exercise of this Warrant.  No
fractional shares or scrip representing fractional shares shall be issued upon
an exercise of this Warrant.

     

    2.4  Partial Exercise; Effective
Date of Exercise.  In case of any partial exercise of this
Warrant, the Company shall cancel this Warrant upon surrender hereof and shall
execute and deliver a new Warrant of like tenor and date for the balance of the
shares of Warrant Shares purchasable hereunder.  This Warrant shall be
deemed to have been exercised immediately prior to the close of business on the
date of its surrender for exercise as provided above.  Holder shall be
treated for all purposes as the holder of record of the Warrant Shares to which
it is entitled upon exercise of this Warrant as of the close of business on the
date the Holder is deemed to have exercised this Warrant.

     

     

    
      
        
        

      

      
        - 3-


        
          

        

      

      
        
        

      

    

     

    2.5  Exercise Price
Adjustment.  The Exercise Price in effect at any time and the
number of Warrant Shares purchased upon the exercise of this Warrant shall be
subject to adjustment from time to time only upon the happening of the following
events:

     

    (a)  Stock Dividend, Subdivision
and Combination. In case the Company shall (i) declare a dividend or make
a distribution on its outstanding shares of Common Stock in shares of Common
Stock or Convertible Securities without payment of any consideration for the
additional shares of Common Stock or the Convertible Securities (including the
additional shares of Common Stock issuable pursuant to the terms thereof), (ii)
subdivide or reclassify its outstanding shares of Common Stock into a greater
number of shares, or (iii) combine or reclassify its outstanding shares of
Common Stock into a smaller number of shares, the Exercise Price in effect at
the time of the record date for such dividend or distribution or of the
effective date of such subdivision, combination or reclassification shall be
adjusted so that it shall equal the price determined by multiplying the Exercise
Price by a fraction, the numerator of which shall be the number of shares of
Common Stock outstanding immediately prior to such action and the denominator of
which shall be the number of shares of Common Stock outstanding after giving
effect to such action (including the additional shares of Common Stock issuable
pursuant to the terms of Convertible Securities issued as a dividend or as a
distribution as contemplated by clause (i) of this Section 2.5(a)). Such
adjustment shall be made successively whenever any event listed above shall
occur.

     

    (b)  Other
Distributions.  If at any time after the date hereof the
Company distributes to holders of its Common Stock, other than as part of its
dissolution or liquidation or the winding up of its affairs, any shares of its
capital stock, any evidence of indebtedness or any of its assets (other than
cash, Common Stock or Convertible Securities), then the Company may, at its
option, either (i) decrease the Exercise Price of this Warrant by an appropriate
amount based upon the value distributed on each share of Common Stock as
determined in good faith by the Company’s board of directors or (ii) provide by
resolution of the Company’s board of directors that on exercise of this Warrant,
the Holder hereof shall thereafter be entitled to receive, in addition to the
Shares of Common Stock otherwise receivable on exercise hereof, the number of
shares or other securities or property which would have been received had this
Warrant at the time been exercised.

     

    (c)  Merger.  If
at any time after the date hereof there shall be a merger, consolidation, share
exchange or similar transaction of the Company with or into another entity
(other than any such transaction in which the Company is the surviving entity
and which does not result in any reclassification or change in the securities
issuable upon exercise of this Warrant), then the Company will make provision to
ensure that the Holder shall thereafter be entitled to receive upon exercise of
this Warrant, during the period specified herein and upon payment of the
aggregate Exercise Price then in effect, the number of shares or other
securities or property of the Company, or successor entity resulting from such
transaction, which would have been received by Holder for the Shares subject to
this Warrant had this Warrant been exercised at such time.

     

    (d)  Reclassification,
Etc.  If at any time after the date hereof there shall be a
change or reclassification of the securities as to which purchase rights under
this Warrant exist into the same or a different number of securities of any
other class or classes, then the Holder shall thereafter be entitled to receive
upon exercise of this Warrant, during the period specified herein and upon
payment of the Exercise Price then in effect, the number of shares or other
securities or property resulting from such change or reclassification, which
would have been received by Holder for the Shares subject to this Warrant had
this Warrant been exercised at such time.

     

     

    
      
        
        

      

      
        - 4-


        
          

        

      

      
        
        

      

    

     

    (e)  Adjustment in Number of
Securities. Upon each adjustment of the Exercise Price pursuant to the
provisions of this Section 2.5, the number of Warrant Shares issuable upon the
exercise at the adjusted Exercise Price of this Warrant shall be adjusted to the
nearest number of whole shares of Common Stock by multiplying a number equal to
the Exercise Price in effect immediately prior to such adjustment by the number
of Warrant Shares issuable upon exercise of this Warrant immediately prior to
such adjustment and dividing the product so obtained by the adjusted Exercise
Price.

     

    (f)  Notice of Adjustment.
Whenever the Exercise Price shall be adjusted as provided in this Section 2.5,
the Company shall provide notice of such adjustment to the holder of this
Warrant together with a statement, certified by the chief financial officer of
the Company, showing in detail the facts requiring such adjustment and the
Exercise Price that shall be in effect after such
adjustment.  Notwithstanding anything to the contrary, no adjustment
in the Exercise Price shall be required unless such adjustment would require a
change in the Exercise Price of at least one cent ($0.01); provided, however,
that any adjustments which by reason of this Section 2.5(f) are not required to
be made shall be carried forward and taken into account in any subsequent
adjustment.

     

    3.  Valid Issuance;
Taxes.  All shares of Warrant Shares issued upon the exercise
of this Warrant shall be validly issued, fully paid and non-assessable; provided
that Holder shall pay all taxes and other governmental charges that may be
imposed in respect of the issue or delivery thereof.  The Company
shall not be required to pay any tax or other charge imposed in connection with
any transfer involved in the issuance of any certificate for shares of Warrant
Shares in any name other than that of the Holder, and in such case the Company
shall not be required to issue or deliver any stock certificate or security
until such tax or other charge has been paid, or it has been established to the
Company's satisfaction that no tax or other charge is due.

     

    4.  Listing.  Prior to
the issuance of any shares of Common Stock upon exercise of this Warrant, the
Company shall secure the listing of such shares of Common Stock upon each
national securities exchange or automated quotation system, if any, upon which
shares of Common Stock are then listed (subject to official notice of issuance
upon exercise of this Warrant) and shall maintain, so long as any other shares
of Common Stock shall be so listed, such listing of all shares of Common Stock
from time to time issuable upon the exercise of this Warrant; and the Company
shall so list on each national securities exchange or automated quotation
system, and shall maintain such listing of, any other shares of capital stock of
the Company issuable upon the exercise of this Warrant if and so long as any
shares of the same class shall be listed on such national securities exchange or
automated quotation system.

     

    5.  Loss or
Mutilation.  Upon receipt of evidence satisfactory to the
Company of the ownership of and the loss, theft, destruction or mutilation of
this Warrant, and of indemnity satisfactory to it, or (in the case of
mutilation) upon surrender and cancellation of this Warrant, the Company shall
execute and deliver in lieu thereof a new Warrant of like tenor as the lost,
stolen, destroyed or mutilated Warrant.

     

    6.  Reservation of Warrant
Shares.  The Company hereby covenants that at all times there
shall be reserved for issuance and delivery upon exercise of this Warrant such
number of shares of Common Stock or other shares of capital stock of the Company
as are from time to time issuable upon exercise of this Warrant and, from time
to time as necessary, will take all steps necessary to amend its certificate of
incorporation to provide sufficient reserves of shares of Common Stock issuable
upon exercise of this Warrant.  All such shares shall be duly
authorized, and when issued upon such exercise, shall be validly issued, fully
paid and non-assessable, free and clear of all liens, security interests,
charges and other encumbrances or restrictions on sale and free and clear of all
preemptive rights, except encumbrances or restrictions arising under federal or
state securities laws.  Issuance of this Warrant shall constitute full
authority to the Company's officers who are charged with the duty of executing
stock certificates to execute and issue the necessary certificates for shares of
Warrant Shares upon the exercise of this Warrant.

     

     

    
      
        
        

      

      
        - 5-


        
          

        

      

      
        
        

      

    

     

    7.  Restrictions On
Transfer.  This Warrant and the Warrant Shares are subject to
the transfer restrictions as set forth in the Purchase Agreement.  The
Holder, by acceptance hereof, agrees that, such Holder shall not Transfer any or
all of this Warrant or the Warrant Shares, as the case may be, except in
compliance with the restrictions on transfer as set forth in the Purchase
Agreement.

     

    8.  Notice of Record Date and Certain
Other Events.  In the event of any taking by the Company of a
record of the holders of any class of securities for the purpose of determining
the holders thereof who are entitled to receive any dividend or other
distribution, the Company shall mail to the Holder, at least fifteen (15) days
prior to the date on which any such record is to be taken for the purpose of
such dividend or distribution, a notice specifying such date.  In the
event of any voluntary dissolution, liquidation or winding up of the Company,
the Company shall mail to the Holder, at least fifteen (15) days prior to the
date of the occurrence of any such event, a notice specifying such
date.  In the event the Company authorizes or approves, enters into
any agreement contemplating, or solicits stockholder approval for any
Fundamental Transaction, the Company shall mail to the Holder, at least fifteen
(15) days prior to the date of the closing of such event, a notice specifying
such date.  Notwithstanding the foregoing, the failure to deliver such
notice or any defect therein shall not affect the validity of the corporate
action required to be described in such notice.

     

    9.  Notice.  All notices
and other communications from the Company to the Holder shall be in writing and
shall be sufficiently given if (a) delivered personally or (b) sent by
registered or certified mail, postage prepaid, or (c) sent by overnight courier
with a nationally recognized courier, or (d) sent via facsimile confirmed in
writing in any of the foregoing manners to the Holder at the address for such
Holder set forth on the Company's books and records.  If sent by mail,
notice shall be considered delivered five business days after the date of
mailing, and if sent by any other means set forth above, notice shall be
considered delivered upon receipt thereof.

     

    10.  Headings; Section
Reference.  The headings in this Warrant are for purposes of
convenience in reference only, and shall not be deemed to constitute a part
hereof.  All Section references herein are references to Sections of
this Warrant unless specified otherwise.

     

    11.  Governing Law.  This
Warrant shall be governed by and construed in accordance with the laws of the
State of California without regard to the conflict of laws
provisions.  In any action, lawsuit or proceeding brought to enforce
or interpret the provisions of this Warrant and/or arising out of or relating to
any dispute between the parties, the prevailing party with respect to each
specific issue in a matter shall be entitled to recover all of his or its costs
and expenses relating to such issue (including without limitation, reasonable
attorney's fees and disbursements) in addition to any other relief to which such
party may be entitled.

     

    12.  Severability.  If
any term, provision, covenant or restriction of this Warrant is held by a court
of competent jurisdiction to be invalid, void or unenforceable, the remainder of
the terms, provisions, covenants and restrictions of this Warrant shall remain
in full force and effect and shall in no way be affected, impaired or
invalidated.

     

     

    
      
        
        

      

      
        - 6-


        
          

        

      

      
        
        

      

    

     

    13.  Counterparts.  For
the convenience of the parties, any number of counterparts of this Warrant may
be executed by the parties hereto and each such executed counterpart shall be,
and shall be deemed to be, an original instrument.

     

    14.  Saturdays, Sundays and
Holidays.  If the Expiration Date falls on any day that is not
a Trading Day, the Expiration Date shall automatically be extended until 5:30
P.M. the next Trading Day.

     

    [Signature
Page Follows]

     

     

    
      
        
        

      

      
        - 7-


        
          

        

      

      
        
        

      

    

     

    IN
WITNESS WHEREOF, the undersigned duly authorized representative of the Company
has executed this Warrant as of the day and date first written
above.

     

    
    

     

    
      	 	
              NTN
      Buzztime, Inc.

            	 
	 	 	 	 
	 	 	 	 
	 	By:	 	 
	 	Its:	 	 
	 	 	 	 
	 	Agreed and
      Accepted:	 
	 	 	 	 
	 	Holder:	 
	 	 	 
	 	 	 
	 	 	 
	 	 	 	 
	 	By:	 	 
	 	Its:	 	 


    

     

     

    
      
        
        

      

      
        - 8-


        
          

        

      

      
        
        

      

    

     

     

    EXHIBIT
1

     

    NOTICE
OF EXERCISE

     

    (To
be executed upon exercise of Warrant)

     

    TO:           NTN
BUZZTIME, INC.

    


    
      	
              1.

            	
              The
      undersigned hereby elects to purchase ________ Warrant Shares of the
      Company pursuant to the terms of the attached Warrant, and tenders
      herewith payment of the exercise price in full, together with all
      applicable transfer taxes, if any. If said number of Warrant Shares shall
      not be all the Warrant Shares purchasable under the attached Warrant, a
      new Warrant is to be issued in the name of the undersigned for the balance
      remaining of the shares purchasable thereunder rounded up to the next
      higher whole number of shares.

            


    

    


    
      	
              2.

            	
              Payment
      shall take the form of (check applicable
box):

            


    

    


    [  ]
in lawful money of the United States; or

     

    [ ] the
cancellation of such number of Warrant Shares as is necessary, in accordance
with the formula set forth in Section 2.2, to exercise this Warrant with respect
to the maximum number of Warrant Shares purchasable pursuant to the cashless
exercise procedure set forth in Section 2.2.

     

    


    
      	
              Date: _________________________

            	
              Instant
      Access Media, LLC

            	 
	 
      	 
      	 
	 
      	 
      	 
	
              By:

            	 
      	 
	
              Its: