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EXHIBIT 4.2
WINK COMMUNICATIONS, INC.
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THIRD AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
JUNE 18, 1997
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WINK COMMUNICATIONS, INC.
THIRD AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
THIS AGREEMENT is made as of the 18th day of June 1997, among Wink
Communications, Inc., a California corporation (the "Company"), NBC Multimedia,
Inc. (together with its affiliates, "NBC") and each of the individuals and
entities listed on Exhibit A hereto, as amended from time to time to include
Series C Investors (as hereinafter defined) (referred to herein individually as
"Investor" and collectively as "Investors").
RECITALS
WHEREAS, pursuant to the First Amended and Restated Registration Rights
Agreement dated as of December 21, 1995 and the Second Amended and Restated
Investor Rights Agreement dated as of April 17, 1997 (collectively, the "Prior
Registration Rights Agreement") among the Company and certain of the Investors
indicated on Exhibit A attached hereto ("Prior Investors"), the Company granted
the Prior Investors certain rights regarding registration of the Company's
securities under the Securities Act of 1933, as amended ("Registration Rights");
and
WHEREAS, pursuant to the Series A and Series B Preferred Stock Purchase
Agreements, as amended, and the Series C Preferred Stock Purchase Agreement
dated as of April 17, 1997 (the "Prior Purchase Agreements"), among the Company
and the Prior Investors, the Company granted the Prior Investors certain rights
regarding financial information, records inspection and rights of first refusal
(collectively with the Registration Rights referred to herein as "Rights"); and
WHEREAS, the Prior Registration Rights Agreement and the Prior Purchase
Agreements set forth all the Rights of the Prior Investors; and
WHEREAS, the purchasers of Series C Preferred Stock (the "Series C
Investors"), in connection with their proposal to purchase up to 2,500,000
shares of the Company's Series C Preferred Stock pursuant to the Series C
Preferred Stock Purchase Agreement dated as of April 17, 1997 and amended on
June 18, 1997 (the "Series C Agreement"), desire to obtain such Rights granted
pursuant to the Prior Registration Rights Agreement and the Prior Purchase
Agreements; and
WHEREAS, the Company and the Prior Investors, to induce the Series C
Investors to purchase the Series C Preferred Stock, desire to grant the Series C
Investors and other Investors the Rights granted pursuant to the Prior
Registration Rights Agreement and the Prior Purchase Agreements.
NOW, THEREFORE, in consideration of the above and of the mutual promises
set forth herein, the parties hereto agree that, subject to the closing of the
purchase of Series C Preferred Stock by the Series C Investors pursuant to the
Series C Agreement: (i) all Rights set forth in the Prior Registration Rights
Agreement and the Prior Purchase Agreements are terminated and of no further
force and effect; (ii) the Company hereby grants to the Prior Investors and the
Series C Investors the rights set forth below; and (iii) the Company and the
Prior Investors, to induce the Series C Investors to invest in the
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Company, hereby accept and agree to the termination of all prior Rights and
accept and agree to be bound by the terms of this Agreement.
SECTION 1
DEFINITIONS
1.1 CERTAIN DEFINITIONS. Hereafter, in this Agreement the following
terms shall have the following respective meanings:
"Purchaser" shall mean each Prior Investor, each Series C
Investor and NBC.
"Purchasers" shall mean all Prior Investors, all Series C
Investors and NBC, referred to collectively.
"Commission" shall mean the Securities and Exchange Commission or
any other federal agency at the time administering the Securities Act.
"Preferred" shall mean the Series A Preferred Stock, Series B
Preferred Stock and Series C Preferred Stock of the Company.
"Conversion Stock" shall mean the Common Stock issued or issuable
upon conversion of the Preferred.
"Holder" shall mean any Purchaser holding Registrable Securities
or the GECC Warrant and any person holding Registrable Securities to whom the
rights under this Agreement have been transferred in accordance with Section
2.14 hereof, plus, for purposes of Section 2 (other than Sections 2.4, 2.6 and
2.7) and Section 5, the holder of the Lender Warrant.
"Initiating Holders" shall mean any Purchasers or transferees of
Purchasers under Section 2.14 hereof who in the aggregate are Holders of greater
than 25% of the Registrable Securities.
"Benchmark Warrants" shall mean the warrants to purchase an
aggregate of 500,000 shares of Common Stock at a price of $6.00 per share issued
to Benchmark Capital Partners, L.P. and Benchmark Founders Fund, L.P. on July
31, 1996.
"Lender Warrant" shall mean the warrant to purchase 17,500 shares
of Series B Preferred Stock at a price of $4.00 per share issued to Venture
Lending and Leasing, Inc. on September 18, 1996.
"GECC Warrant" shall mean the warrant or warrants to purchase an
aggregate of up to 900,000 shares of Common Stock (subject to adjustments) at a
price of $8.00 per share (subject to
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adjustments) issued or to be issued to General Electric Capital Corporation or
its affiliates, including NBC.
"WCI Warrants" shall mean the warrants to purchase an aggregate
of up to 125,000 shares of Common Stock at a price of $0.80 per share issued or
to be issued to WC Investors, LLC.
"Registrable Securities" means (i) the Conversion Stock, (ii) any
Common Stock of the Company issued or issuable in respect of the Conversion
Stock or other securities issued or issuable pursuant to the conversion of the
Preferred upon any stock split, stock dividend, recapitalization, or similar
event (a "Recapitalization"), or any Common Stock otherwise issued or issuable
with respect to the Preferred, (iii) with respect to Section 2 herein (other
than Sections 2.4, 2.6 and 2.7), the shares of Common Stock of the Company
issued or issuable upon conversion of the Preferred Stock issued or issuable
upon exercise of the Lender Warrant, and (iv) the Common Stock of the Company
issued or issuable upon exercise of the Benchmark Warrants, the WCI Warrants or
the GECC Warrant; provided, however, that shares of Common Stock or other
securities shall be treated as Registrable Securities only if and so long as
they have not been (A) sold to or through a broker or dealer or underwriter in a
public distribution or a public securities transaction, whether in a registered
offering, Rule 144 transaction or otherwise, or (B) sold or are available for
sale, in the written opinion of counsel to the Company, in a transaction exempt
from the registration and prospectus delivery requirements of the Securities
Act, such that all transfer restrictions and restrictive legends with respect
thereto are removed upon the consummation of such sale.
The terms "register," "registered" and "registration" refer to a
registration effected by preparing and filing a registration statement in
compliance with the Securities Act, and the declaration or ordering of the
effectiveness of such registration statement.
"Registration Expenses" shall mean all expenses, except as
otherwise stated below, incurred by the Company in complying with Sections 2.4,
2.5 and 2.6 hereof, including, without limitation, all registration,
qualification and filing fees, printing expenses, escrow fees, fees and
disbursements of counsel for the Company, blue sky fees and expenses, the
expense of any special audits incident to or required by any such registration
(but excluding the compensation of regular employees of the Company which shall
be paid in any event by the Company) and the reasonable fees and disbursements
of one counsel for all Holders in the event of three exercises of a requested
registration provided for in Section 2.4 hereof, in the event of all Company
registrations pursuant to Section 2.5 hereof, and for all Company registrations
on Form S-3 pursuant to Section 2.6 hereof.
"Restricted Securities" shall mean the securities of the Company
required to bear the legend set forth in Section 2.2 hereof.
"Securities Act" shall mean the Securities Act of 1933, as
amended, or any similar federal statute and the rules and regulations of the
Commission thereunder, all as the same shall be in effect at the time.
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"Selling Expenses" shall mean all underwriting discounts, selling
commissions and stock transfer taxes applicable to the securities registered by
the Holders and, except as set forth above, all reasonable fees and
disbursements of counsel for any Holder.
SECTION 2
RESTRICTIONS ON TRANSFERABILITY OF SECURITIES;
COMPLIANCE WITH SECURITIES ACT; REGISTRATION RIGHTS
2.1 RESTRICTIONS ON TRANSFERABILITY. The Preferred and the Conversion
Stock shall not be sold, assigned, transferred or pledged except upon the
conditions specified in this Section 2, which conditions are intended to ensure
compliance with the provisions of the Securities Act. Each Purchaser will cause
any proposed purchaser, assignee, transferee, or pledgee of the Preferred or
Conversion Stock held by a Purchaser to agree to take and hold such securities
subject to the provisions and upon the conditions specified in this Section 2.
2.2 RESTRICTIVE LEGEND. Each certificate representing (i) the Preferred,
(ii) the Conversion Stock and (iii) any other securities issued in respect of
the Preferred or the Conversion Stock upon any Recapitalization, merger,
consolidation or similar event shall (unless otherwise permitted by the
provisions of Section 2.3 below) be stamped or otherwise imprinted with a legend
in the following form (in addition to any legend required under applicable state
securities laws):
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR
INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933. SUCH SHARES MAY NOT BE SOLD OR TRANSFERRED IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS THE COMPANY RECEIVES AN
OPINION OF COUNSEL REASONABLY ACCEPTABLE TO IT STATING THAT SUCH
SALE OR TRANSFER IS EXEMPT FROM THE REGISTRATION AND PROSPECTUS
DELIVERY REQUIREMENTS OF SAID ACT. COPIES OF THE AGREEMENT
COVERING THE PURCHASE OF THESE SHARES AND RESTRICTING THEIR
TRANSFER MAY BE OBTAINED AT NO COST BY WRITTEN REQUEST MADE BY
THE HOLDER OF RECORD OF THIS CERTIFICATE TO THE SECRETARY OF THE
COMPANY AT THE PRINCIPAL EXECUTIVE OFFICES OF THE COMPANY.
Each Purchaser and Holder consents to the Company making a notation on its
records and giving instructions to any transfer agent of the Preferred or the
Common Stock in order to implement the restrictions on transfer established in
this Section 2.
2.3 NOTICE OF PROPOSED TRANSFERS. The holder of each certificate
representing Restricted Securities by acceptance thereof agrees to comply in all
respects with the provisions of this Section 2.3. Prior to any proposed sale,
assignment, transfer or pledge of any Restricted Securities (other than (i) a
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transfer not involving a change in beneficial ownership, (ii) in transactions
involving the distribution without consideration of Restricted Securities by any
of the Purchasers to any of its partners or members, or retired partners or
members, or to the estate of any of its partners or members or retired partners
or members, (iii) transfers to a Holder's family members or to trusts for the
benefit of a Holder or a Holder's family members, or (iv) in the case of General
Electric Capital Corporation ("GECC") or NBC, transfers to one or more
affiliates within meaning of Rule 501(b) under the Securities Act, of GECC or
NBC otherwise in compliance with this Agreement), unless there is in effect a
registration statement under the Securities Act covering the proposed transfer,
the Holder thereof shall give written notice to the Company of such Holder's
intention to effect such transfer, sale, assignment or pledge. Each such notice
shall describe the manner and circumstances of the proposed transfer, sale,
assignment or pledge in sufficient detail, and shall be accompanied, at such
Holder's expense by either (i) an unqualified written opinion of legal counsel,
who shall be and whose legal opinion shall be reasonably satisfactory to the
Company, addressed to the Company, to the effect that the proposed transfer of
the Restricted Securities may be effected without registration under the
Securities Act, or (ii) a "no action" letter from the Commission to the effect
that the transfer of such securities without registration will not result in a
recommendation by the staff of the Commission that action be taken with respect
thereto, whereupon the Holder of such Restricted Securities shall be entitled to
transfer such Restricted Securities in accordance with the terms of the notice
delivered by the Holder to the Company. Each certificate evidencing the
Restricted Securities transferred as above provided shall bear, except if such
transfer is made pursuant to Rule 144, the appropriate restrictive legend set
forth in Section 2.2 above, except that such certificate shall not bear such
restrictive legend if in the opinion of counsel for such Holder and the Company
such legend is not required in order to establish compliance with any provision
of the Securities Act.
2.4 REQUESTED REGISTRATION.
(a) Request for Registration. In case the Company shall receive
from Initiating Holders a written request that the Company effect any
registration, qualification or compliance with respect to not less than 500,000
shares (appropriately adjusted for Recapitalizations) of Registrable Securities,
or any lesser number of shares if the anticipated aggregate offering price, net
of underwriting discounts and commissions, would exceed $20,000,000, the Company
will:
(i) promptly give written notice of the proposed
registration, qualification or compliance to all other Holders; and
(ii) as soon as practicable, use its best efforts to
effect such registration, qualification or compliance (including, without
limitation, appropriate qualification under applicable blue sky or other state
securities laws and appropriate compliance with applicable regulations issued
under the Securities Act and any other governmental requirements or regulations)
as may be so requested and as would permit or facilitate the sale and
distribution of all or such portion of such Registrable Securities as are
specified in such request, together with all or such portion of the Registrable
Securities of any Holder or Holders joining in such request as are specified in
a written request received by the Company within twenty (20) days after mailing
of such written notice by the Company;
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provided, however, that the Company shall not be obligated to take any action to
effect any such registration, qualification or compliance pursuant to this
Section 2.4:
(A) In any particular jurisdiction in which the
Company would be required to execute a general consent to service of process in
effecting such registration, qualification or compliance unless the Company is
already subject to service in such jurisdiction and except as may be required by
the Securities Act;
(B) Prior to December 31, 1999;
(C) During the period starting with the date sixty
(60) days prior to the Company's estimated date of filing of, and ending on the
date six (6) months immediately following the effective date of, any
registration statement pertaining to securities of the Company (other than a
registration of securities in a Rule 145 transaction or with respect to an
employee benefit plan), provided that the Company is actively employing in good
faith all reasonable efforts to cause such registration statement to become
effective;
(D) After the Company has effected three such
registrations pursuant to this Section 2.4(a), and such registrations have been
declared or ordered effective; or
(E) If the Company shall furnish to such Holders a
certificate signed by the President of the Company stating that in the good
faith judgment of the Board of Directors it would be seriously detrimental to
the Company or its shareholders for a registration statement to be filed in the
near future, in which case the Company's obligation to use its best efforts to
register, qualify or comply under this Section 2.4 shall be deferred for a
period not to exceed one hundred twenty (120) days from the date of receipt of
written request from the Initiating Holders; provided that the Company may not
exercise this right more than once in any twelve-month period.
Subject to the foregoing clauses (A) through (E), the Company shall file a
registration statement covering the Registrable Securities so requested to be
registered as soon as practicable, after receipt of the request or requests of
the Initiating Holders.
(b) Underwriting. In the event that a registration pursuant to
Section 2.4 is for a registered public offering involving an underwriting, the
Company shall so advise the Holders as part of the notice given pursuant to
Section 2.4(a)(i). In such event, the right of any Holder to registration
pursuant to Section 2.4 shall be conditioned upon such Holder's participation in
the underwriting arrangements required by this Section 2.4, and the inclusion of
such Holder's Registrable Securities in the underwriting to the extent requested
shall be limited to the extent provided herein. The Company shall (together with
all Holders proposing to distribute their securities through such underwriting)
enter into an underwriting agreement in customary form with the managing
underwriter selected for such underwriting by a majority in interest of the
Initiating Holders, but subject to the Company's reasonable approval.
Notwithstanding any other provision of this Section 2.4, if the managing
underwriter advises the Initiating Holders in writing that marketing factors
require a limitation of the number of shares to
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be underwritten, then the Company shall so advise all Holders, and the number of
shares of Registrable Securities that may be included in the registration and
underwriting shall be allocated among all Holders thereof in proportion, as
nearly as practicable, to the respective amounts of Registrable Securities held
by such Holders at the time of filing the registration statement; provided,
however, that the number of shares of Registrable Securities to be included in
such underwriting and registration shall not be reduced unless all other
securities of the Company are first entirely excluded from the underwriting and
registration; provided further, however, that if the number of shares of
Registrable Securities to be included in such underwriting or registration is
reduced to less than 75% of the aggregate number of shares of Registrable
Securities originally requested for registration pursuant to Section 2.4(a),
then such registration or underwriting shall not be counted as one of the two
permitted requests for registration under Section 2.4(a)(D). No Registrable
Securities excluded from the underwriting by reason of the underwriter's
marketing limitation shall be included in such registration. To facilitate the
allocation of shares in accordance with the above provisions, the Company or the
underwriters may round the number of shares allocated to any Holder to the
nearest one hundred (100) shares. If any Holder of Registrable Securities
disapproves of the terms of the underwriting, such person may elect to withdraw
therefrom by written notice to the Company, the managing underwriter and the
Initiating Holders. The Registrable Securities and/or other securities so
withdrawn shall also be withdrawn from registration and such Registrable
Securities shall not be transferred in a public distribution prior to one
hundred eighty (180) days after the effective date of such registration, or such
other shorter period of time as the underwriters may require.
2.5 COMPANY REGISTRATION.
(a) Notice of Registration. If at any time or from time to time
the Company shall determine to register any of its securities, either for its
own account or the account of a security holder or holders, other than (i) a
registration relating solely to employee benefit plans or (ii) a registration
relating solely to a Commission Rule 145 transaction, the Company will:
(i) promptly give to each Holder written notice thereof;
and
(ii) include in such registration (and any related
qualification under blue sky laws or other compliance), and in any underwriting
involved therein, all the Registrable Securities specified in a written request
or requests, made within twenty (20) days after mailing of such written notice
by the Company, by any Holder.
(b) Underwriting. If the registration of which the Company gives
notice is for a registered public offering involving an underwriting, the
Company shall so advise the Holders as a part of the written notice given
pursuant to Section 2.5(a)(i). In such event, the right of any Holder to
registration pursuant to Section 2.5 shall be conditioned upon such Holder's
participation in such underwriting and the inclusion of Registrable Securities
in the underwriting to the extent provided herein. All Holders proposing to
distribute their securities through such underwriting shall (together with the
Company and the other holders distributing their securities through such
underwriting) enter into an underwriting agreement in customary form with the
managing underwriter selected for such
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underwriting by the Company. Notwithstanding any other provision of this Section
2.5, if the managing underwriter determines that marketing factors require a
limitation of the number of shares to be underwritten, the managing underwriter
may limit the Registrable Securities to be included in such registration (or
exclude them entirely). The Company shall so advise all Holders and other
holders distributing their securities through such underwriting, and the number
of shares of Registrable Securities that may be included in the registration and
underwriting (after inclusion of all shares to be included by the Company) shall
be allocated among all Holders requesting inclusion of Registrable Securities in
such registration in proportion, as nearly as practicable, to the respective
amounts of Registrable Securities held by such Holders at the time of filing the
registration statement; provided, however, that the right of the underwriters to
exclude Registrable Securities from the registration and underwriting as
described above shall be restricted such that (i) the number of Registrable
Securities included in any such registration may not be reduced below
twenty-five percent (25%) of the shares included in the registration, except for
a registration relating to the Company's initial public offering from which all
Registrable Securities may be excluded; and (ii) all shares that are not
Registrable Securities and all shares that are held by persons who are employees
or directors of the Company (or any subsidiary of the Company) shall first be
excluded from such registration and underwriting before any Registrable
Securities are so excluded. To facilitate the allocation of shares in accordance
with the above provisions, the Company may round the number of shares allocated
to any Holder or holder to the nearest one hundred (100) shares. If any Holder
or holder disapproves of the terms of any such underwriting, he may elect to
withdraw therefrom by written notice to the Company and the managing
underwriter. Any securities excluded or withdrawn from such underwriting shall
be withdrawn from such registration, and shall not be transferred in a public
distribution prior to one hundred eighty (180) days after the effective date of
the registration statement relating thereto, or such other shorter period of
time as the underwriters may require.
(c) Right to Terminate Registration. The Company shall have the
right to terminate or withdraw any registration initiated by it under this
Section 2.5 prior to the effectiveness of such registration whether or not any
Holder has elected to include securities in such registration.
2.6 REGISTRATION ON FORM S-3.
(a) If any Holder or Holders request that the Company file a
registration statement on Form S-3 (or any successor form to Form S-3) for a
public offering of shares of the Registrable Securities the reasonably
anticipated aggregate offering price to the public of which, net of underwriting
discounts and commissions, would exceed $1,000,000, and the Company is a
registrant entitled to use Form S-3 to register the Registrable Securities for
such an offering, the Company shall use its best efforts to cause such
Registrable Securities to be registered for the offering on such form and to
cause such Registrable Securities to be qualified in such jurisdictions as the
Holder or Holders may reasonably request; provided, however, that the Company
shall not be required to effect more than one registration pursuant to this
Section 2.6 in any six (6) month period or in excess of three registrations
under this Section 2.6. The substantive provisions of Section 2.4(b) shall be
applicable to each registration initiated under this Section 2.6.
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(b) Notwithstanding the foregoing, the Company shall not be
obligated to take any action pursuant to this Section 2.6: (i) in any particular
jurisdiction in which the Company would be required to execute a general consent
to service of process in effecting such registration, qualification or
compliance unless the Company is already subject to service in such jurisdiction
and except as may be required by the Securities Act; (ii) if the Company, within
ten (10) days of the receipt of the request of the initiating Holders, gives
notice of its bona fide intention to effect the filing of a registration
statement with the Commission within ninety (90) days of receipt of such request
(other than with respect to a registration statement relating to a Rule 145
transaction, an offering solely to employees or any other registration which is
not appropriate for the registration of Registrable Securities); (iii) during
the period starting with the date sixty (60) days prior to the Company's
estimated date of filing of, and ending on the date six (6) months immediately
following, the effective date of any registration statement pertaining to
securities of the Company (other than a registration of securities in a Rule 145
transaction or with respect to an employee benefit plan), provided that the
Company is actively employing in good faith all reasonable efforts to cause such
registration statement to become effective; or (iv) if the Company shall furnish
to such Holder a certificate signed by the President of the Company stating that
in the good faith judgment of the Board of Directors it would be seriously
detrimental to the Company or its shareholders for registration statements to be
filed in the near future, in which case the Company's obligation to use its best
efforts to file a registration statement shall be deferred for a period not to
exceed one hundred twenty (120) days from the receipt of the request to file
such registration by such Holder.
2.7 LIMITATIONS ON SUBSEQUENT REGISTRATION RIGHTS. From and after the
date of this Agreement, the Company shall not enter into any agreement granting
any holder or prospective holder of any securities of the Company registration
rights with respect to such securities unless such new registration rights,
including standoff obligations, are subordinate to the rights of the Holders
hereunder and would not reduce the amount of Registrable Securities of the
Holders which may be included in a registration.
2.8 EXPENSES OF REGISTRATION. All Registration Expenses incurred in
connection with (i) three registrations pursuant to Section 2.4, (ii) all
registrations pursuant to Section 2.5, and (iii) all registrations pursuant to
Section 2.6 shall be borne by the Company. Unless otherwise stated, all Selling
Expenses relating to securities registered on behalf of the Holders and all
other Registration Expenses shall be borne by the Holders of such securities pro
rata on the basis of the number of shares so registered.
2.9 REGISTRATION PROCEDURES. In the case of each registration,
qualification or compliance effected by the Company pursuant to this Section 2,
the Company will keep each Holder advised in writing as to the initiation of
each registration, qualification and compliance and as to the completion
thereof. At its expense the Company will:
(a) Prepare and file with the Commission a registration statement
with respect to such securities and use its best efforts to cause such
registration statement to become and remain effective for
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at least one hundred eighty (180) days or until the distribution described in
the Registration Statement has been completed;
(b) Furnish to the Holders participating in such registration and
to the underwriters of the securities being registered such reasonable number of
copies of the registration statement, preliminary prospectus, final prospectus
and such other documents as such underwriters may reasonably request in order to
facilitate the public offering of such securities;
(c) Use its best efforts to register and qualify the securities
covered by such registration statement under such other securities or Blue Sky
laws of such jurisdictions as shall be reasonably requested by the Holders,
provided that the Company shall not be required in connection therewith or as a
condition thereto to qualify to do business or to file a general consent to
service of process in any such states or jurisdictions;
(d) In the event of any underwritten public offering, enter into
and perform its obligations under an underwriting agreement, in usual and
customary form, with the managing underwriters of such offering;
(e) Notify each Holder of Registrable Securities covered by such
registration statement, at any time when a prospectus relating thereto is
required to be delivered under the Securities Act, of the happening of any event
as a result of which the prospectus included in such registration statement, as
then in effect, includes an untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances then
existing.
2.10 INDEMNIFICATION.
(a) The Company will indemnify each Holder, each of its officers,
directors, partners, members, accountants, legal counsel and agents, and each
person controlling such Holder within the meaning of Section 15 of the
Securities Act, with respect to which registration, qualification or compliance
has been effected pursuant to this Section 2, and each underwriter, if any, and
each person who controls any underwriter within the meaning of Section 15 of the
Securities Act, against all expenses, claims, losses, damages or liabilities (or
actions in respect thereof), including any of the foregoing incurred in
settlement of any litigation, commenced or threatened, arising out of or based
on any untrue statement (or alleged untrue statement) of a material fact
contained in any final registration statement, prospectus, offering circular or
other document, or any amendment or supplement thereto, incident to any such
registration, qualification or compliance, or based on any omission (or alleged
omission) to state therein a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances in which
they were made, not misleading, or any violation by the Company of the
Securities Act or any rule or regulation promulgated under the Securities Act
applicable to the Company in connection with any such registration,
qualification or compliance, and the Company will reimburse each such Holder,
each of its officers and directors, and each person controlling such Holder,
each such underwriter and each person who controls any such underwriter, for any
legal and any
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other expenses reasonably incurred in connection with investigating, preparing
or defending any such claim, loss, damage, liability or action, provided that
the Company will not be liable in any such case to the extent that any such
claim, loss, damage, liability or expense arises out of or is based on any
untrue statement or omission or alleged untrue statement or omission, made in
reliance upon and in conformity with written information furnished to the
Company by an instrument duly executed by such Holder, controlling person or
underwriter and stated to be specifically for use therein.
(b) Each Holder will, if Registrable Securities held by such
Holder are included in the securities as to which such registration,
qualification or compliance is being effected, indemnify the Company, each of
its directors, officers, accountants, legal counsel and agents, each
underwriter, if any, of the Company's securities covered by such a registration
statement, each person who controls the Company or such underwriter within the
meaning of Section 15 of the Securities Act, and each other such Holder, each of
its officers, directors, partners, members, accountants, legal counsel and
agents, and each person controlling such Holder within the meaning of Section 15
of the Securities Act, against all claims, losses, damages and liabilities (or
actions in respect thereof) arising out of or based on any untrue statement (or
alleged untrue statement) of a material fact contained in any final registration
statement, prospectus, offering circular or other document, or any omission (or
alleged omission) to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, and will reimburse
the Company, such Holders, such directors, officers, persons, underwriters or
control persons for any legal or any other expenses reasonably incurred in
connection with investigating or defending any such claim, loss, damage,
liability or action, in each case to the extent, but only to the extent, that
such untrue statement (or alleged untrue statement) or omission (or alleged
omission) is made in such registration statement, prospectus, offering circular
or other document in reliance upon and in conformity with written information
furnished to the Company by an instrument duly executed by such Holder and
stated to be specifically for use therein; provided, however that the total
amount payable in indemnity by a Holder under this Section 2.10(b) shall not
exceed the net proceeds received by such Holder in the registered offering out
which the obligation to indemnify under this Section 2.10(b) arises.
(c) Each party entitled to indemnification under this Section
2.10 (the "Indemnified Party") shall give notice to the party required to
provide indemnification (the "Indemnifying Party") promptly after such
Indemnified Party has actual knowledge of any claim as to which indemnity may be
sought, and shall permit the Indemnifying Party to assume the defense of any
such claim or any litigation resulting therefrom, provided that counsel for the
Indemnifying Party, who shall conduct the defense of such claim or litigation,
shall be approved by the Indemnified Party (whose approval shall not
unreasonably be withheld), and the Indemnified Party may participate in such
defense at such party's expense, and provided further that the failure of any
Indemnified Party to give notice as provided herein shall not relieve the
Indemnifying Party of its obligations under this Section 2 unless the failure to
give such notice is materially prejudicial to an Indemnifying Party's ability to
defend such action, in which case the Indemnifying Party shall be relieved of
its obligation under this Section 2.10 to the extent of such prejudice, and
provided further that the Indemnifying Party shall not assume the defense for
matters as to which there is a conflict of interest or separate and different
defenses. No Indemnifying Party, in the defense of any such claim or litigation,
shall, except with the consent of each Indemnified Party,
-11-
13
consent to entry of any judgment or enter into any settlement which does not
include as an unconditional term thereof the giving by the claimant or plaintiff
to such Indemnified Party of a release from all liability in respect to such
claim or litigation.
2.11 TERMINATION OF REGISTRATION RIGHTS. The rights granted pursuant to
this Agreement, to the extent not earlier terminated by the terms hereof, shall
terminate as to any Holder at such time as such Holder is able to sell publicly
without registration all Registrable Securities then held by such Holder, if
any, within a ninety (90) day period pursuant to Rule 144 under the Securities
Act or a similar exemption.
2.12 INFORMATION BY HOLDER. The Holder or Holders of Registrable
Securities included in any registration shall furnish to the Company such
information regarding such Holder or Holders, the Registrable Securities held by
them and the distribution proposed by such Holder or Holders as the Company may
reasonably request in writing and as shall be reasonably required in connection
with any registration, qualification or compliance referred to in this Section
2.
2.13 RULE 144 REPORTING. With a view to making available the benefits of
certain rules and regulations of the Commission that may at any time permit the
sale of the Restricted Securities to the public without registration, after such
time as a public market exists for the Common Stock of the Company, the Company
agrees to use its best efforts to:
(a) Make and keep public information available, as those terms
are understood and defined in Rule 144 under the Securities Act, at all times
after the effective date that the Company becomes subject to the reporting
requirements of the Securities Act or the Securities Exchange Act of 1934, as
amended (the "Exchange Act");
(b) File with the Commission in a timely manner all reports and
other documents required of the Company under the Securities Act and the
Exchange Act (at any time after it has become subject to such reporting
requirements); and
(c) So long as a Purchaser owns any Restricted Securities, to
furnish to the Purchaser forthwith upon request (i) a written statement by the
Company as to its compliance with the reporting requirements of said Rule 144
(at any time after ninety (90) days after the effective date of the first
registration statement filed by the Company for an offering of its securities to
the general public) and of the Securities Act and the Exchange Act (at any time
after it has become subject to such reporting requirements), (ii) a copy of the
most recent annual or quarterly report of the Company, and (iii) such other
reports and documents of the Company and other information in the possession of
or reasonably obtainable by the Company as a Purchaser may reasonably request in
availing itself of any rule or regulation of the Commission allowing a Purchaser
to sell any such securities without registration.
2.14 TRANSFER OF REGISTRATION RIGHTS. The rights to cause the Company to
register securities granted Purchasers under Sections 2.4, 2.5 and 2.6 may be
assigned in connection with any transfer or assignment of Registrable Securities
or the GECC Warrant by a Purchaser provided that: (i) such transfer
-12-
14
may otherwise be effected in accordance with applicable securities laws, (ii)
such transferee agrees to be bound hereby and (iii) either (A) such assignee or
transferee is reasonably acceptable to Purchaser and acquires at least 250,000
shares of Preferred and/or Common Stock issued upon conversion thereof
(appropriately adjusted for Recapitalizations) or options, warrants or
convertible securities exercisable or exchangeable therefor, (B) such transferee
is a family member of the Purchaser or a trust for the benefit of the Purchaser
or a family member of the Purchaser, (C) if Purchaser is a partnership or
limited liability company, such transferee is (w) a general partner or member or
retired general partner or member of Purchaser, (x) such general partner or
member or retired general partner's or member's spouse or siblings or the lineal
descendants or ancestors of such general partner or member or retired partner or
member or his spouse, (y) one or more trusts established for the benefit of any
of the foregoing individuals, or (z) without limitation of the foregoing, with
respect to WC Investors, LLC, such Transferee is ▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇,
▇▇▇ ▇. ▇▇▇▇▇▇▇▇, F. ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ or
the spouse or siblings or lineal descendants or ancestors of any of the
foregoing individuals or one or more trusts established for the benefit of any
of the foregoing individuals (all of the individuals and trusts refereed to in
clauses (w), (x), (y) and (z) being hereinafter referred to as "Partnership/LLC
Transferees"), or (D) 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.
2.15 STANDOFF AGREEMENT. Each Holder agrees in connection with the
Company's initial public offering of the Company's securities that, upon request
of the Company or the underwriters managing any underwritten offering of the
Company's securities, not to publicly sell, make any short sale of, loan, grant
any option for the purchase of, or otherwise dispose of any securities of the
Company in a public transaction (other than those included in the registration)
without the prior written consent of the Company or such underwriters, as the
case may be, for such period of time (not to exceed one hundred eighty (180)
days) from the effective date of such registration as may be requested by the
underwriters; provided, that the officers and directors of the Company who own
stock of the Company have also agreed to such restrictions.
SECTION 3
3.1 FINANCIAL INFORMATION. The Company will mail the following reports
to each Purchaser for so long as such Purchaser is a holder of any Shares of
Preferred or Common Stock issued upon conversion of the Shares of Preferred or
of warrants or other convertible securities exercisable for or convertible into
shares of Preferred or Common Stock:
(i) As soon as practicable after the end of each fiscal year,
and in any event within ninety (90) days thereafter, consolidated balance sheets
of the Company and its subsidiaries, if any, as of the end of such fiscal year,
and consolidated statements of income and consolidated statements of cash flows
of the Company and its subsidiaries, if any, for such year, prepared in
accordance with generally accepted accounting principles and setting forth in
each case in comparative form the figures for the
-13-
15
previous fiscal year and the budgeted figures for the fiscal year then reported,
all in reasonable detail and audited by independent public accountants selected
by the Company.
(ii) As soon as practicable, and in any case within forty-five
(45) days after the end of each fiscal quarter of the Company (except the last
quarter of the Company's fiscal year), quarterly unaudited financial statements,
including an unaudited balance sheet, an unaudited statement of income and an
unaudited statement of cash flows, together with a comparison to the Company's
budget and a statement of the Chief Financial Officer of the Company that such
statements fairly present the consolidated financial position and consolidated
financial results of the Company for the fiscal quarter covered, subject to
appropriate year end adjustments; and
(iii) As soon as practicable and in any event no later than
thirty (30) days after the close of each fiscal year of the Company, an annual
operating budget, prepared on a monthly basis, for the next immediate fiscal
year. The Company shall also furnish, within a reasonable time of its
preparation, amendments to such annual budget, if any.
3.2 INSPECTION RIGHTS. The Company shall permit each Purchaser holding
at least 250,000 shares of Preferred (or shares of Common Stock issued upon
conversion of the Preferred or any combination thereof or warrants or
convertible securities exercisable for or convertible into at least 250,000
shares of Preferred and/or Common Stock), at such Purchaser's expense, to visit
and inspect the Company's properties, to examine its books of account and
records and to discuss the Company's affairs, finances and accounts with its
officers, all on reasonable notice and at such reasonable times as may be
requested by such Purchaser. Shares held by an investor and its Partnership/LLC
Transferees shall be aggregated for purposes of meeting the 250,000 minimum
share requirement in this Section 3.2; provided, however, that in the case of
such aggregation, the investor and all Partnership/LLC Transferees shall
together designate one representative to exercise inspection rights pursuant to
this Section 3.2.
3.3 RULE 144A INFORMATION. The Company will provide each Purchaser, upon
request and at such Purchaser's expense, with such reasonable written
information as may be required in order to permit such Purchaser to resell any
shares of the Company's stock pursuant to Rule 144A promulgated under the
Securities Act.
3.4 ASSIGNMENT OF RIGHTS. The rights granted pursuant to this Section 3
and Section 4 may not be assigned or otherwise conveyed by any Purchaser or by
any subsequent transferee of any such rights without the prior written consent
of the Company; provided, however, that any Purchaser may assign to any
transferee, except for a competitor of the Company (as the Company may determine
in its sole discretion), after giving notice to the Company, the rights granted
pursuant to this Section 3 and Section 4 provided that such transferee agrees to
be bound hereby and (i) acquires at least 250,000 shares of Preferred and/or
Common Stock issued upon conversion of the shares of Preferred (appropriately
adjusted for stock splits, stock dividends, recapitalizations and the like) (or
shares of Common Stock issued upon conversion of the Preferred or any
combination thereof or warrants or convertible securities exercisable for or
convertible into at least 250,000 shares of Preferred and/or Common Stock), (ii)
is Partnership/LLC Transferee of a Purchaser, (iii) is another Purchaser or (iv)
in the case of GECC or
-14-
16
NBC, is an affiliate within the meaning of Rule 501(b) of the Securities Act of
the transferring Purchaser.
3.5 TERMINATION OF RIGHTS. The rights set forth in this Section 3 shall
terminate and be of no further force or effect at the earlier of (i) the closing
of an underwritten public offering pursuant to an effective registration
statement under the Securities Act, covering the offer and sale of Common Stock
for the account of the Company to the public or (ii) such time as the Company is
required to file reports pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934, as amended.
SECTION 4
RIGHT OF FIRST REFUSAL
4.1 GENERAL. Each Purchaser and any party to whom such Purchaser's
rights under this Section 4 have been duly assigned in accordance with Section
3.4 (each such Purchaser or assignee being hereinafter referred to as a "Rights
Holder") shall have a right of first refusal to purchase such Rights Holder's
Pro Rata Share (as defined below) of all (or any part) of any "New Securities"
(as defined in Section 4.2) that the Company may from time to time issue after
the date of this Agreement. A Rights Holder's "Pro Rata Share" for purposes of
this right of first refusal is the ratio of (a) the number of shares of Common
Stock then held by such Rights Holder or issuable upon conversion of any
Preferred Stock then held by such Rights Holder or upon exercise of the
Benchmark Warrants, the WCI Warrants or the GECC Warrant, to (b) the total
outstanding number of shares of Common Stock outstanding or issuable upon
conversion of any outstanding Preferred Stock or upon exercise of the Benchmark
Warrants, the WCI Warrants, and, without duplication, the GECC Warrant.
Notwithstanding the foregoing, each Rights Holder's "Pro Rata Share" shall be
increased in proportion to the maximum amount by which any single Rights Holder
proposes to purchase more than its Pro Rata Share of the New Securities,
calculated without regard to this sentence; provided, however, that if the total
number of New Securities to be sold is insufficient to permit satisfaction of
the so increased Pro Rata Shares of all Rights Holders, then each Rights
Holder's Pro Rata Share shall be increased only to the extent that there are
sufficient New Securities, and no Rights Holder shall be permitted to purchase
more than its Pro Rata Share as so increased.
4.2 NEW SECURITIES. "New Securities" shall mean any Common Stock or
Preferred Stock of the Company, whether now authorized or not, and rights,
options or warrants to purchase such Common Stock or Preferred Stock, and
securities of any type whatsoever that are, or may become, convertible or
exchangeable into such Common Stock or Preferred Stock; provided, however, that
the term "New Securities" does not include:
(i) up to 3,000,000 shares of the Company's Common Stock (and/or
options or warrants therefor) issued after February 1, 1995 (and net of any
repurchases) to employees, officers, directors, contractors, advisors or
consultants of the Company pursuant to incentive agreements or plans approved by
the Board of Directors of the Company;
-15-
17
(ii) any securities issuable upon conversion of or with respect
to any then outstanding shares of Series A Preferred Stock, Series B Preferred
Stock or Series C Preferred Stock of the Company or Common Stock or other
securities issuable upon conversion thereof;
(iii) any options, warrants or rights to purchase any securities
of the Company outstanding on the date of this Agreement, including the Lender
Warrant, the Benchmark Warrants, the WCI Warrants and the GECC Warrant,
(collectively, "Derivative Securities") and any securities issuable upon the
exercise or conversion of any Derivative Securities;
(iv) shares of the Company's Common Stock or Preferred Stock
issued in connection with any stock split, stock dividend or recapitalization in
which each Right Holder's Pro Rata Share is not reduced;
(v) securities offered by the Company to the public pursuant to
a registration statement filed under the Securities Act;
(vi) securities issued pursuant to the acquisition of another
corporation or entity by the Company by consolidation, merger, purchase of all
or substantially all of the assets, or other reorganization in which the Company
acquires, in a single transaction or series of related transactions, all or
substantially all of the assets of such other corporation or entity or fifty
percent (50%) or more of the voting power of such other corporation or entity or
fifty percent (50%) or more of the equity ownership of such other entity; or
(vii) all shares of the Company's Series C Preferred Stock sold
pursuant to the Series C Agreement, as it may be amended from time to time in
accordance therewith and the Articles of Incorporation of the Company as in
effect on the date hereof.
4.3 PROCEDURES. In the event that the Company proposes to undertake an
issuance of New Securities, it shall give to each Rights Holder written notice
of its intention to issue New Securities (the "Notice"), describing the type of
New Securities and the price and the general terms upon which the Company
proposes to issue such New Securities. Each Rights Holder shall have ten (10)
days from the date of the sending of any such Notice to agree in writing to
purchase such Rights Holder's Pro Rata Share of such New Securities for the
price and upon the general terms specified in the Notice by giving written
notice of the Company and stating therein the quantity of New Securities to be
purchased (not to exceed such Rights Holder's Pro Rata Share). If any Rights
Holder fails to so agree in writing within such ten (10) day period to purchase
such Rights Holder's full Pro Rata Share of an offering of New Securities (a
"Nonpurchasing Holder"), then such Nonpurchasing Holder shall forfeit the right
hereunder to purchase that part of his Pro Rata Share of such New Securities
that he did not so agree to purchase.
4.4 FAILURE TO EXERCISE. In the event that the Rights Holders fail to
exercise in full the right of first refusal within such ten (10) day period,
then the Company shall have 120 days thereafter to sell the New Securities with
respect to which the Rights Holders' rights of first refusal hereunder were not
exercised, at a price and upon general terms not materially more favorable to
the purchasers thereof than
-16-
18
specified in the Company's Notice to the Rights Holders (provided that if the
Company actually sells the New Securities at a price or upon general terms more
favorable to the purchasers thereof, the Company shall retroactively adjust the
price and terms of the New Securities sold to Rights Holders pursuant to the
exercise of their rights under this Section 4.4 to be such more favorable
terms). In the event that the Company has not issued and sold the New Securities
within such 120 day period, then the Company shall not thereafter issue or sell
any New Securities without again first offering such New Securities to the
Rights Holders pursuant to this Section 4.
4.5 TERMINATION OF RIGHTS. The rights set forth in this Section 4 shall
terminate and be of no further force or effect at the earlier of (i) the closing
of an underwritten public offering pursuant to an effective registration
statement under the Securities Act, covering the offer and sale of Common Stock
for the account of the Company to the public; (ii) such time as the Company is
required to file reports pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934, as amended; or (iii) with respect to a particular Rights
Holder, at such time as such Rights Holder does not own at least 250,000 shares
of Preferred and/or Common Stock issued upon conversion of the shares of
Preferred and/or warrants or convertible securities exercisable for or
convertible into at least 250,000 shares of Preferred and/or Common Stock
(appropriately adjusted for stock split, stock dividend, stock splits, stock
dividends, recapitalizations and the like). For purposes of calculating the
250,000 minimum share requirement in this Section 4.5(iii), shares held by an
investor and its Partnership/LLC Transferee shall be aggregated.
SECTION 5
MISCELLANEOUS
5.1 GOVERNING LAW. This Agreement shall be governed and construed in all
respects in accordance with the laws of the State of California as applied to
agreements made and performed in California by residents of the State of
California.
5.2 ENTIRE AGREEMENT; AMENDMENT. This Agreement constitutes the full and
entire under standing and agreement between the parties with regard to the
subjects hereof and thereof, and no party shall be liable or bound to any other
party in any manner by any warranties, representations or covenants except as
specifically set forth herein and therein. Except as expressly provided herein,
neither this Agreement nor any term hereof may be amended, waived, discharged or
terminated other than by a written instrument signed by the party against whom
enforcement of any such amendment, waiver, discharge or termination is sought;
provided, however, that holders of a majority of the Registrable Securities may,
with the Company's prior written consent, waive, modify or amend on behalf of
all holders, any provisions hereof, except that any such waiver, modification or
amendment which affects a Purchaser in a manner or to an extent more adverse
than any other Purchaser shall require the prior written consent of such
Purchaser.
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19
5.3 NOTICES, ETC. All notices and other communications required or
permitted hereunder shall be in writing and shall be mailed by registered or
certified mail, postage prepaid or otherwise delivered by hand or by messenger,
addressed (a) if to a Purchaser, at such Purchaser's address set forth in
Exhibit A, or at such other address as such Purchaser shall have furnished to
the Company in writing, (b) if to any other Holder, at such address as such
Holder shall have furnished the Company in writing, or until any such Holder so
furnishes an address to the Company, then to and at the address of the last
Holder of such shares who has so furnished an address to the Company, or (c) if
to the Company, at the Company's principal place of business, addressed to the
attention of the Corporate Secretary, or at such other address as the Company
shall have furnished to the Purchasers. Each such notice or other communication
shall, unless otherwise expressly provided herein, be treated as effective or
having been given when delivered if delivered personally, or, if sent by mail,
at the earlier of its receipt or seventy-two (72) hours after the same has been
deposited in a regularly maintained receptacle for the deposit of the United
States mail, addressed and mailed as aforesaid.
5.4 SEVERABILITY. In the event that any provision of this Agreement
becomes or is declared by a court of competent jurisdiction to be illegal,
unenforceable or void, this Agreement shall continue in full force and effect
without said provision; provided that no such severability shall be effective if
it materially changes the economic benefit of this Agreement to any party.
5.5 TITLES AND SUBTITLES. The titles and subtitles used in this
Agreement are used for convenience only and are not considered in construing or
interpreting this Agreement.
5.6 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which may be executed by less than all of the Purchasers,
each of which shall be enforceable against the parties actually executing such
counterparts, and all of which together shall constitute one instrument.
5.7 PRIOR REGISTRATION RIGHTS AGREEMENT. Upon both (i) the execution of
this Agreement by Investors holding (x) a majority of the Registrable Securities
outstanding or deemed to be outstanding immediately prior to the Closing under
the Series C Agreement, and (y) a majority of the Preferred Stock and Conversion
Stock outstanding or deemed to be outstanding immediately prior to the Closing
under the Series C Agreement, and (ii) the initial sale by the Company of any
shares of Series C Preferred Stock, this Agreement shall supersede and replace
the Prior Registration Rights Agreement, which shall be terminated and cease to
have any further force or effect. This Agreement amends and restates in its
entirety that certain Second Amended and Restated Investor Rights Agreement
dated as of April 17, 1997.
5.8 PRIOR PURCHASE AGREEMENTS. The Amendment to Series A Preferred Stock
Purchase Agreement (the "Series A Amendment") dated as of December 21, 1995 by
and between the Company and Toshiba Corporation (which superseded the provisions
of Section 8 of the Series A Preferred Stock Agreement (the "Series A
Agreement") executed as of February 1, 1995 by and between the Company and
Toshiba Corporation) and Section 8 of the Series B Preferred Stock Purchase
Agreement (the "Series B Agreement") dated as of December 21, 1995 among the
Company and the persons and entities
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20
listed on the Schedule of Purchasers attached thereto as Exhibit A are hereby
deemed null and void and are hereby replaced in their entirety by Section 4 of
this Agreement. Except as expressly amended and modified hereby, the Series A
Agreement and the Series B Agreement shall each continue in full force and
effect in accordance with its terms. By execution of this Agreement, each Prior
Investor hereby (a) consents to the issuance of the Series C Preferred Stock as
contemplated by the Agreement and the Amended and Restated Articles of
Incorporation, (b) waives its rights of first refusal pursuant to Section 8 of
the Series B Agreement with respect to the Company's offer and sale of Series C
Preferred Stock under the Series C Agreement, except to the extent of its
purchase of Series C Preferred Stock that it has acquired prior to the date of
this Agreement under the Series C Agreement, and (c) consents to the termination
of the Series A Amendment and the amendment of the Series A Agreement and/or the
Series B Agreement, as applicable, as contemplated herein.
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21
IN WITNESS WHEREOF, the parties have executed this Investor Rights
Agreement as of the date first above written.
WINK COMMUNICATIONS, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
---------------------------------
Its: President and CEO
--------------------------------
INVESTOR
see attached table
------------------------------------
By:
---------------------------------
Its:
--------------------------------
NBC MULTIMEDIA, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
---------------------------------
Its: President and CEO
--------------------------------
INVESTOR RIGHTS AGREEMENT
22
EXHIBIT A
SCHEDULE OF HOLDERS
Name and Address Registrable Securities
---------------- ----------------------
SERIES A INVESTOR
Toshiba Corporation 1,250,000 shares of Series A Preferred
Attn: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Deputy General Manager
Business Planning
Advanced-I Group
1-1, Shibaura 1-Chome,
▇▇▇▇▇▇-▇▇, ▇▇▇▇▇ ▇▇▇-▇▇,
▇▇▇▇▇
SERIES B INVESTORS
General Instrument Corporation 600,000 shares of Series B Preferred
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇ ▇▇▇▇▇▇▇, Vice President
Scientific-Atlanta, Inc. 600,000 shares of Series B Preferred
▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: General Counsel
Nippon Telegraph and Telephone 600,000 shares of Series B Preferred
Corporation
▇▇-▇ ▇▇▇▇▇-▇▇▇▇▇▇▇▇ ▇-▇▇▇▇▇
▇▇▇▇▇▇▇▇-▇▇, ▇▇▇▇▇ ▇▇▇-▇▇
▇▇▇▇▇
Benchmark Capital Partners, L.P. 335,880 shares of Series B Preferred
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Benchmark Founders' Fund, L.P. 39,120 shares of Series B Preferred
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
23
Jordan ▇. ▇▇▇▇▇▇▇ 2,500 shares of Series B Preferred
Geoworks
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇.
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 2,500 shares of Series B Preferred Stock
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇. ▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇. Del Sesto 5,000 shares of Series B Preferred Stock
▇▇ ▇▇▇▇▇▇▇ ▇▇▇.
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ 2,500 shares of Series B Preferred Stock
Geoworks
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇ ▇. ▇▇▇▇▇▇ 2,500 shares of Series B Preferred Stock
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇. # ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇ 2,500 shares of Series B Preferred Stock
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇. #▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ 2,500 shares of Series B Preferred Stock
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 2,500 shares of Series B Preferred Stock
Geoworks
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 2,500 shares of Series B Preferred Stock
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 2,500 shares of Series B Preferred Stock
Geoworks
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
24
Shininchi Makino 2,500 shares of Series B Preferred Stock
Toshiba Corporation
Advanced-I Group
1-1, Shibaura 1-Chome,
▇▇▇▇▇▇-▇▇, ▇▇▇▇▇ ▇▇▇-▇▇,
▇▇▇▇▇
▇▇▇▇▇ Family Partners, a California 2,500 shares of Series B Preferred Stock
Limited Partnership
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 2,500 shares of Series B Preferred Stock
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇ 2,500 shares of Series B Preferred Stock
Geoworks
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ 2,500 shares of Series B Preferred Stock
Toshiba Corporation
Advanced-I Group
1-1, Shibaura 1-Chome,
▇▇▇▇▇▇-▇▇, ▇▇▇▇▇ ▇▇▇-▇▇,
▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇ 5,000 shares of Series B Preferred Stock
▇.▇. ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 2,500 shares of Series B Preferred Stock
Geoworks
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇.
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
WS Investment Company 96A 8,750 shares of Series B Preferred Stock
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
25
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 2,500 shares of Series B Preferred Stock
Toshiba Corporation
Advanced-I Group
1-1, Shibaura 1-Chome,
▇▇▇▇▇▇-▇▇, ▇▇▇▇▇ ▇▇▇-▇▇,
▇▇▇▇▇
General Instrument Corporation 550,000 shares of Common Stock in the event
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ Floor registration rights are granted with respect to any
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ other shares of Common Stock
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Venture Leading & Leasing, Inc. Upon exercise of the Lender Warrant, 17,500 shares
Western Technology Investment of Series B Preferred Stock*
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇
Benchmark Capital Partners, L.P. Upon exercise of the Benchmark Warrants, 441,257
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇ shares of Common Stock
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Benchmark Founders Fund, L.P. Upon exercise of the Benchmark Warrants, 58,743
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇ shares of Common Stock
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------
* Registrable Securities only for purposes of Section 2 (excluding
Sections 2.4, 2.6 and 2.7 thereof) of the Investor Rights Agreement.
26
SERIES C INVESTORS
WC Investors, LLC Upon exercise of the WCI Warrant, 75,000
Two North Riverside Plaza, Suite 1900 shares of Common Stock
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇
WC Investors, LLC 375,000 shares of Series C Preferred Stock
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Benchmark Capital Partners, L.P. 54,836 shares of Series C Preferred Stock
Benchmark Founders' Fund, L.P.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
General Partner
Toshiba Corporation 250,000 shares of Series C Preferred Stock
1-1, Shibaura 1-Chome
▇▇▇▇▇▇-▇▇, ▇▇▇▇▇ ▇▇▇-▇
▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
General Manager
Business Planning Advanced-I Group
▇▇▇▇▇ Fargo Bank, Trustee of the 62,500 shares of Series C Preferred Stock
Vision Service Executive Deferred
Compensation Plan
▇▇▇▇▇ Fargo Bank, N.A.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇ MAC #0101-021
AJ Trusts Partnership 62,500 shares of Series C Preferred Stock
c/o ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇ Vista Management Company
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Pace Communications, Inc. 31,250 shares of Series C Preferred Stock
c/o ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
27
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ Recipient 62,500 shares of Series C Preferred Stock
Pour-Off Trust ▇/▇/▇ ▇▇▇▇▇ ▇, ▇▇▇▇
▇▇▇▇▇▇▇ Classics Wine Company
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
General Instrument Corporation 62,500 shares of Series C Preferred Stock
GI Analog Network Systems Business Unit
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇▇, Vice President
Scientific-Atlanta, Inc. 62,500 shares of Series C Preferred Stock
▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: General Counsel
GFI Company 375,000 shares of Series C Preferred Stock
Oklahoma Publishing Company
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 12,500 shares of Series C Preferred Stock
▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇. 31,250 shares of Series C Preferred Stock
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 12,500 shares of Series C Preferred Stock
▇▇▇▇ ▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇. Dial and ▇▇▇▇▇ ▇. ▇▇▇▇▇ 18,750 shares of Series C Preferred Stock
▇▇▇▇▇ Fargo Bank
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, DDS, Inc. Profit Sharing Plan 18,750 shares of Series C Preferred Stock
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
28
▇▇▇▇▇▇ Family Trust U/A/D 2-19-76 18,750 shares of Series C Preferred Stock
and Amended 5-15-95
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Trustees
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
General Electric Capital Corporation 625,000 shares of Series C Preferred Stock
c/o Equity Capital Group
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ ▇▇▇▇▇ 1,875 shares of Series C Preferred Stock
▇▇▇▇ ▇▇. ▇▇▇ ▇▇▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 1,875 shares of Series C Preferred Stock
RR4 ▇▇▇ ▇▇▇; ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇. 5,000 shares of Series C Preferred Stock
▇▇▇ ▇▇▇▇▇▇ Public Relations
The Historic Cable House
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 1,875 shares of Series C Preferred Stock
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇ 1,875 shares of Series C Preferred Stock
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 1,875 shares of Series C Preferred Stock
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
The ▇▇▇▇▇ Family Trust U/D/T Created 3,000 shares of Series C Preferred Stock
October 11, 1994, FBO The ▇▇▇▇▇ Family
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇-▇▇▇▇▇ ▇▇▇▇▇ 2,000 shares of Series C Preferred Stock
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇. #▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
29
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Trustee, and 2,500 shares of Series C Preferred Stock
▇▇▇▇ ▇▇▇▇▇▇ Trustee, the
Kassar Family Trust, UTD 5-4-88
▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇ 1,875 shares of Series C Preferred Stock
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇. and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, 3,750 shares of Series C Preferred Stock
Trustees of the ▇▇▇▇▇▇ Family Trust,
originally established July 24, 1984
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 1,875 shares of Series C Preferred Stock
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, DDS and ▇▇▇▇▇▇▇▇ 1,875 shares of Series C Preferred Stock
▇. ▇▇▇▇▇▇▇, Tenants in Common
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ 1,875 shares of Series C Preferred Stock
▇-▇-▇ ▇▇▇-▇▇▇▇▇
▇▇▇▇▇▇▇▇-▇▇▇
▇▇▇▇▇ ▇▇▇-▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ 13,500 shares of Series C Preferred Stock
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 625 shares of Series C Preferred Stock
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
EGI-Wink Investors, L.L.C. 250,000 shares of Series C Preferred Stock
Two ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇
EGI-Wink Investors, L.L.C. Upon exercise of WCI Warrant, 50,000
Two North Riverside Plaza, Suite 1900 shares of Common Stock
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇
