EXHIBIT 4.4
WINK COMMUNICATIONS, INC.
CONSENT AND AMENDMENT OF
INVESTOR RIGHTS AGREEMENT AND CO-SALE AGREEMENT
This Consent and Amendment of Investor Rights Agreement is effective as
of October 20, 2000 by and among Wink Communications, Inc. (the "Company"),
Adelphia Communication Corporation ("Adelphia"), and those stockholders of the
Company (the "Existing Investors") who are parties to the Fourth Amended and
Restated Investor Rights Agreement dated as of June 30, 1999, as amended to date
(the "Rights Agreement").
WHEREAS, the Board of Directors of the Company has determined it to be
in the best interests of the Company and its stockholders to issue to Adelphia
warrants to purchase an aggregate of 1,450,000 shares of Common Stock (the
"Adelphia Warrants") in connection with Adelphia's agreement to provide the Wink
Service as a standard feature to its subscribers pursuant to the Cable
Affiliation Agreement dated October 20, 2000 between the Company and Adelphia;
WHEREAS, the Company desires, and the Board of Directors has determined
that it is in the best interests of the Company and its stockholders, to grant
to Adelphia certain registration rights in connection with the shares issuable
upon exercise of the Adelphia Warrants;
WHEREAS, in order to grant registration rights in connection with the
issuance of the Adelphia Warrants, the Company wishes to amend the terms of the
Rights Agreement;
WHEREAS, Section 5.2 of the Rights Agreement provides for waiver,
modification or amendment of certain provisions therein with the written
approval of the holders of a majority of the Registrable Securities (as defined
in the Rights Agreement);
NOW, THEREFORE, the parties agree as follows:
1. GRANT OF RIGHTS AND AMENDMENT OF AGREEMENTS. The Company hereby
grants to Adelphia, in connection with the issuance of the Adelphia Warrant, all
registration rights granted to the "Investors" (as defined in the Rights
Agreement) under the Section 2 of the Rights Agreement. Furthermore, the Rights
Agreement is hereby amended such that Adelphia shall be treated as an "Investor"
and "Holder" thereunder with respect to the shares issuable upon exercise of the
Adelphia Warrants for all purposes of Section 2, as amended hereby. In
particular, Adelphia's rights shall not be subordinate under Section 2.7 of the
Rights Agreement to the rights of any other Holder under the Rights Agreement.
2. CONSENT TO AMEND, AND AMENDMENT OF, SECTION 1.1 OF THE RIGHTS
AGREEMENT.
(a) The Company and the Existing Investors hereby consent to
the addition of a definition of "Adelphia Warrants" to Section 1.1 of the Rights
Agreement, and acknowledge that the
execution of this Consent and Amendment by the holders of a majority of the
Registrable Securities (as defined in the Rights Agreement) shall so amend the
Rights Agreement, as follows:
"Adelphia Warrants" shall mean the warrants to
purchase an aggregate of 1,450,000 shares of Common Stock (subject to
appropriate adjustment in the event of any stock split, dividends,
recombinations, recapitalizations and the like) issued or to be issued to
Adelphia Communication Corporation pursuant to the Cable Affiliation Agreement
dated October 20, 2000 between the Company and Adelphia.
(b) The Company and the Existing Investors hereby consent to
the amendment of the definition of "Registrable Securities" contained in Section
1.1 of the Rights Agreement, and agree that the execution of this Consent and
Amendment by the holders of a majority of the Registrable Securities (as
currently defined in the Rights Agreement) shall amend such definition, by
changing the phrase "the Thomson Warrant, the EchoStar Warrant and the Vulcan
Warrant" at the end of clause (iv) to read "the Adelphia Warrants, the EchoStar
Warrant, the Thomson Warrant and the Vulcan Warrant." (c) The Company and the
Existing Investors hereby consent to the amendment of Section 2.3 (iv) to add
the following underlined text as indicated below:
"in the case of General Electric Capital Corporation ("GECC")
or NBC or Adelphia Communications Corporation ("Adelphia"), transfers
to one or more affiliates, within the meaning of Rule 501(b) under the
Securities Act, of GECC or NBC or Adelphia, respectively, otherwise in
compliance with this Agreement)"
(d) The Company and the Existing Investors hereby consent to
the amendment of Section 2.14(iii)(D) to add the following underlined text as
indicated below:
such transferee is a corporation, partnership, or limited liability
entity and in such case, an affiliate (within the meaning of Rule
501(b) under the Securities Act) of GECC or NBC or Adelphia.
3. CONSENT TO GRANT RIGHTS. The Existing Investors hereby consent to
grant Adelphia, in connection with the issuance of the Adelphia Warrants, all
registration other rights under Section 2 of the Rights Agreement to which the
Existing Investors are currently entitled under such agreements.
[Remainder of Page Intentionally Left Blank]
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4. COUNTERPARTS. This Waiver may be signed in any number of
counterparts, each of which shall constitute an original and all of which
together shall constitute one instrument.
COMPANY INVESTOR
WINK COMMUNICATIONS, INC.
-----------------------------------
Print Name of Investor
By: By:
-------------------------------- -----------------------------------
(Signature of Authorized Person)
Title: Title:
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ADELPHIA COMMUNICATION CORPORATION
By:
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Title:
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