As filed with the Securities and Exchange Commission on January 13, 2005
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-------------------
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
-------------------
NTN COMMUNICATIONS, INC.
(Exact name of registrant as specified in its charter)
-------------------
Delaware 31-1103425
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
The Campus - 5966 La Place Court
Carlsbad, California 92008
(760) 438-7400
(Address, including zip code, and telephone number of principal
executive offices)
-------------------
NTN COMMUNICATIONS, INC. 2004 PERFORMANCE INCENTIVE PLAN
--------------------------------------------------------
(Full title of the plan)
-------------------
Stanley B. Kinsey
NTN Communications, Inc.
The Campus - 5966 La Place Court
Carlsbad, California 92008
(760) 438-7400
(Name, address and telephone number, including area code, of agent for service)
-------------------
Copy to:
C. James Levin
O'Melveny & Myers, LLP
400 S. Hope Street
Los Angeles, California 90071
(213) 430-6000
-------------------
CALCULATION OF REGISTRATION FEE
-------------------------------- ---------------------- ----------------------- ------------------- --------------------
Proposed Proposed
maximum maximum
Title of Amount offering aggregate Amount of
securities to be price offering registration
to be registered registered(1) per unit(2) price(2) fee(2)
-------------------------------- ---------------------- ----------------------- ------------------- --------------------
Common Stock, $0.005 par value 2,577,000 $3.17 $8,169,090 $961.50
per share
-------------------------------- ---------------------- ----------------------- ------------------- --------------------
(1) This Registration Statement covers, in addition to the number of
shares of common stock, par value $0.005 per share (the "Common
Stock"), of NTN Communications, Inc., a Delaware corporation (the
"Company" or the "Registrant"), stated above, options and other
rights to purchase or acquire the shares of Common Stock covered
by the Prospectus, and pursuant to Rule 416(c) under the
Securities Act of 1933, as amended (the "Securities Act"), the
amount registered hereunder includes an additional indeterminate
number of shares, options and rights that may be issued in
accordance with the provisions of the NTN Communications, Inc.
2004 Performance Incentive Plan in the event of any change in the
outstanding Common Stock, including a stock dividend or stock
split.
(2) Pursuant to Rule 457(h), the maximum offering price, per share
and in the aggregate, and the registration fee were calculated
based upon the average of the high and low prices of the Common
Shares on January 11, 2005, as reported on the American Stock
Exchange.
The Exhibit Index for this Registration Statement is at page 8.
================================================================================
PART I
INFORMATION REQUIRED IN THE
SECTION 10(a) PROSPECTUS
The document(s) containing the information specified in Part I of Form
S-8 (plan information and registrant information) will be sent or given to
employees as specified by Securities Act Rule 428(b)(1). Such documents need not
be filed with the Securities and Exchange Commission (the "Commission") either
as part of this Registration Statement or as prospectuses or prospectus
supplements pursuant to Securities Act Rule 424. These documents, which include
the statement of availability required by Item 2 of Form S-8, and the documents
incorporated by reference in this Registration Statement pursuant to Item 3 of
Form S-8 (Part II hereof), taken together, constitute a prospectus that meets
the requirements of Section 10(a) of the Securities Act.
2
PART II
INFORMATION REQUIRED IN THE
REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents, which have been filed by the Company with the
Commission pursuant to the Securities Exchange Act of 1934, as amended (the
"Exchange Act") (Commission File Number 1-11460) are hereby incorporated by
reference in, and shall be deemed to be a part of, this Registration Statement:
(a) The Company's Annual Report on Form 10-K/A for its fiscal year
ended December 31, 2003, filed with the Commission on January
12, 2005;
(b) The Company's Quarterly Reports on Form 10-Q for its fiscal
quarters ended March 31, 2004, June 30, 2004 and September 30,
2004, filed with the Commission on May 10, 2004 and August 9,
2004, respectively;
(c) The Company's Current Reports on Form 8-K filed on January 29,
2004, March 16, 2004, August 23, 2004 and December 1, 2004;
(d) The description of the Common Stock contained in the Company's
Registration Statement on Form 8-A filed under the Exchange
Act and any amendment or report filed for the purpose of
updating such description.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the filing of a
post-effective amendment which indicates that all securities offered hereby have
been sold or which deregisters all securities then remaining unsold shall be
deemed to be incorporated by reference in this Registration Statement and to be
a part hereof from the date of filing of such documents. Any statement contained
herein or in a document incorporated or deemed to be incorporated by reference
herein shall be deemed to be modified or superseded for purposes of this
Registration Statement to the extent that a statement contained herein, or in
any subsequently filed document which also is or is deemed to be incorporated by
reference herein, modifies or supersedes such statement. Any such statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES
Inapplicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Inapplicable.
3
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Company's restated certificate of incorporation permits the Company
to indemnify officers and directors of the Company to the fullest extent
permitted by Section 145 of the Delaware General Corporation Law. Section 145
contains provisions permitting corporations organized thereunder to indemnify
directors, officers, employees or agents against expenses, judgments and fines
and amounts paid in settlement actually and reasonably incurred and against
certain other liabilities in connection with any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative, by reason of the fact that such person was or is a director,
officer, employee or agent of the corporation.
The Company has entered into indemnification agreements with certain of
its outside directors pursuant to which the Company has agreed to indemnify such
directors from claims, liabilities, damages, expenses, losses, costs, penalties
or amounts paid in settlement incurred by any such directors in or arising out
of such person's capacity as a director of the Company or any other corporation
of which such person is a director or officer at the request of the Company to
the maximum extent provided by applicable law. In addition, such directors are
entitled to an advance of expenses to the maximum extent authorized or permitted
by law.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Inapplicable.
ITEM 8. EXHIBITS
See the attached Exhibit Index at page 8.
ITEM 9. UNDERTAKINGS
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales
are being made, a post-effective amendment to this
Registration Statement:
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or
events arising after the effective date of
this 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 this Registration
Statement; and
(iii) To include any material information with
respect to the plan of distribution not
previously disclosed in this Registration
Statement or any material change to such
information in this Registration Statement;
4
PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and (a)(1)(ii) do
not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in
periodic reports filed by the Registrant pursuant to Section
13 or Section 15(d) of the Exchange Act that are incorporated
by reference in this Registration Statement;
(2) That, for the purpose of determining any liability
under the Securities Act, 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; and
(3) 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.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in this 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.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Registrant pursuant to the provisions described in Item 6 above, or
otherwise, the Registrant has been advised that in the opinion of the Commission
such indemnification is against public policy as expressed in the Securities 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 Securities Act and will be governed by the final
adjudication of such issue.
5
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 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 the 13th day of
January, 2005.
NTN COMMUNICATIONS, INC.,
a Delaware corporation
By: /s/ Stanley B. Kinsey
------------------------------------
Stanley B. Kinsey
Chairman and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Stanley B. Kinsey, James B. Frakes and
Kathy Miles, and each or any of them, acting individually and without the other,
as his or her true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for him or her and in his or her name, place
and stead, in any and all capacities, to sign any or all amendments (including
post-effective amendments, exhibits thereto and other documents in connection
therewith) to this Registration Statement, and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the
Commission, granting unto said attorneys-in-fact and agents, and each of them,
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, as fully to all
intents and purposes as he or she might or could do in person, hereby ratifying
and confirming all that said attorneys-in-fact and agents, and each of them, or
his or her or their substitute or substitutes, may lawfully do or cause to be
done by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed below by the following persons in the capacities and
on the dates indicated.
Signature Title Date
--------- ----- ----
/s/ Stanley B. Kinsey Chief Executive Officer and January 13, 2005
------------------------- Chairman of the Board
Stanley B. Kinsey (Principal Executive Officer)
6
Signature Title Date
--------- ----- ----
/s/ James B. Frakes Chief Financial Officer January 13, 2005
------------------------- (Principal Financial Officer
James B. Frakes and Principal Accounting Officer)
/s/ Gary H. Arlen Director January 13, 2005
-------------------------
Gary H. Arlen
/s/ Robert M. Bennett Director January 13, 2005
-------------------------
Robert M. Bennett
/s/ Barry Bergsman Director January 13, 2005
-------------------------
Barry Bergsman
/s/ Robert B. Clasen Director January 13, 2005
-------------------------
Robert B. Clasen
/s/ Michael Fleming Director January 13, 2005
-------------------------
Michael Fleming
/s/ Neal F. Fondren Director January 13, 2005
-------------------------
Neal F. Fondren
/s/ Esther L. Rodriguez Director January 13, 2005
-------------------------
Esther L. Rodriguez
7
EXHIBIT INDEX
Exhibit
Number Description of Exhibit
------ ----------------------
4 NTN Communications, Inc. 2004 Performance Incentive Plan.(1)
5 Opinion of O'Melveny & Myers LLP (opinion re legality).
23.1 Consent of KPMG, LLP registered independent public accounting firm.
23.2 Consent of O'Melveny & Myers LLP (included in Exhibit 5).
24 Power of Attorney (included in this Registration Statement under
"Signatures").
(1) Filed with the Commission as Appendix A to the Definitive Proxy Statement
filed by NTN on September 3, 2004 (Commission File Number 001-11460) and
incorporated herein by this reference.
8