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EXHIBIT 10.8
March 23, 1999
CBS Corporation
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Dear ▇▇▇▇:
Reference is made to the Charter Programmer Affiliation Agreement being entered
into concurrently herewith by CBS Corporation ("CBS") and Wink Communications,
Inc. ("Wink") pursuant to which Wink will license to CBS certain Wink software
for the purpose of creating and airing Wink enhanced broadcasting applications
(the "Master Agreement").
As an inducement for CBS entering into the Master Agreement, Wink is granting to
CBS that Common Stock Purchase Warrant attached hereto as Exhibit "A" between
CBS and Wink for the issuance to CBS of warrants to purchase One Hundred
Twenty-Five Thousand (125,000) shares of Wink Common Stock for a maximum price
of Twelve Dollars ($12.00) per share (the "Warrant Agreement").
CBS and Wink agree that "Programmer" (as defined in the Master Agreement) shall
have no obligations whatsoever under the Master Agreement unless and until (i)
that certain Warrant Agreement is executed and effective as between Wink and
CBS, and (ii) CBS has been made a party to, and has been granted all rights
under, that certain Third Amended and Restated Investor Rights Agreement dated
as of June 18, 1997 (as amended as of October 15, 1997, the "Rights Agreement")
and the Third Amended and Restated Founder Co-Sale Agreement made as of June 18,
1997 ("Co-Sale Agreement") by and among Wink, NBC Multimedia, Inc., and the
parties listed on Exhibit A thereto and is afforded thereby identical rights to
such parties. Wink and CBS further acknowledge and agree that, subject to the
limited right of termination set forth below, the Effective Date of the Master
Agreement shall be the later of the date of its execution or the satisfaction of
the conditions set forth hereinabove, or waiver of such by CBS.
Wink hereby represents and warrants that the Rights Agreement is in full force
and effect and has not been modified, amended or revised (except as noted above)
prior to the execution of this Agreement.
Both parties hereby acknowledge and agree that, notwithstanding the condition
precedents described above, the rights granted to CBS under the Warrant
Agreement, the Rights Agreement and the Co-Sale Agreement are irrevocably and
unconditionally granted to CBS upon execution of the Warrant Agreement, the
Rights Agreement and the Co-Sale Agreement. Wink hereby agrees that Programmer's
non-performance, termination, breach of the Master Agreement, or any
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other failure by Programmer to perform any obligations under the Master
Agreement for any reason whatsoever shall not result in any forfeiture of any
rights granted to CBS under the Warrant Agreement, the Rights Agreement and the
Co-Sale Agreement.
CBS acknowledges that the inclusion of CBS as a party to the Rights Agreement
and Co-Sale Agreement is subject to the obtaining by Wink of all necessary
consents and waivers by existing Wink shareholders and other holders of rights
with respect to Wink securities.
If the consents and waivers necessary to make CBS a party to the Rights
Agreement and the Co-Sale Agreement are not obtained within 30 days of the
execution of this letter agreement, then CBS shall have the right, at its
election, to waive the outstanding condition precedents, to extend the 30-day
period or terminate the Master Agreement. If CBS exercises its election to
terminate the Master Agreement (at the end of such 30-day period, as it may be
extended), neither party shall have any obligation or liability to the other
under the Master Agreement.
Yours very truly,
WINK COMMUNICATIONS, INC. ACCEPTED AND AGREED:
By: CBS CORPORATION
Name: By:
Title: Name:
Title:
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COMMON STOCK PURCHASE WARRANT
THIS WARRANT AND THE SHARES OF COMMON STOCK WHICH MAY BE PURCHASED UPON THE
EXERCISE OF THIS WARRANT HAVE BEEN ACQUIRED SOLELY FOR INVESTMENT AND HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR ANY
STATE SECURITIES LAWS. SUCH SECURITIES MAY NOT BE SOLD, OFFERED FOR SALE,
PLEDGED OR HYPOTHECATED IN THE ABSENCE OF SUCH REGISTRATION OR AN OPINION OF
COUNSEL SATISFACTORY TO THE COMPANY AND ITS COUNSEL THAT SUCH SALE, OFFER OR
PLEDGE IS EXEMPT FROM THE REGISTRATION AND PROSPECTUS DELIVERY REQUIREMENTS OF
THE ACT AND OF ANY APPLICABLE STATE SECURITIES LAWS UNLESS SOLD PURSUANT TO RULE
144 OF THE ACT.
VOID AFTER , 2004
WINK COMMUNICATIONS, INC.
WARRANT TO PURCHASE 125,000 SHARES OF COMMON STOCK
THIS CERTIFIES THAT, for value received, CBS Corporation (the "Holder")
is entitled to subscribe for and purchase 125,000 shares (as adjusted pursuant
to Section 3 hereof) of fully paid and nonassessable Common Stock (the "Shares")
of Wink Communications, Inc., a California corporation (the "Company"), at the
price of $12.00 per share (the "Exercise Price") (as adjusted pursuant to
Section 3 hereof), subject to the provisions and upon the terms and conditions
hereinafter set forth.
1. EXERCISE; PAYMENT.
(a) Time of Exercise. This Warrant may be exercised, in whole or
in part, at any time or from time to time, on any business day, before 5:00
p.m., California local time, on , 2004, for the full or any
partial number of Shares for which this Warrant is then exercisable. This
Warrant shall be immediately exercisable in full upon (i) the filing of a
registration statement for an initial public offering by the Company registered
under the Securities Act of 1933 (an "IPO") or (ii) the execution of a
definitive agreement for (A) the merger or consolidation of the Company into a
third party pursuant to which the Company's shareholders immediately prior to
such merger or consolidation own less than fifty percent (50%) of the
outstanding voting securities of the surviving entity, or (B) the sale of all or
substantially all of the assets of the Company.
EXHIBIT A
4
(b) Method of Exercise.
(i) Cash Exercise. The purchase rights represented by
this Warrant may be exercised by the Holder, in whole or in part, by the
surrender of this Warrant (with the notice of exercise form attached hereto as
Exhibit A duly executed) at the principal office of the Company, and by the
payment to the Company, by wire transfer or by certified, cashier's or other
check acceptable to the Company, of an mount equal to the aggregate Exercise
Price of the Shares being purchased.
(ii) Net Issue Exercise. In lieu of exercising this
Warrant, the Holder may elect to receive Shares equal to the value of this
Warrant (or the portion thereof being exercised) by surrender of this Warrant at
the principal office of the Company together with notice of such election, in
which event the Company shall issue to the Holder a number of shares of the
Company's Common Stock computed using the following formula:
x=Y (-B)
----
A
Where X = the number of Shares to be issued to the Holder.
Y = the number of Shares purchasable under this Warrant (or the
portion thereof being exercised).
A = the Fair Market Value of one share of the Company's Common
Stock.
B = the Exercise Price (as adjusted to the date of such
calculation).
(iii) Fair Market Value. For purposes of this Warrant,
the "Fair Market Value" of the Company's Common Stock shall mean:
A. The average of the closing ask prices of the
Company's Common Stock quoted in the NASDAQ Over-the-Counter Market Summary or
the closing prices quoted on any exchange on which the Common Stock is listed,
whichever is applicable, as published in the Western Edition of The Wall Street
Journal for the ten trading days (or such lesser number of days as the Company's
stock has been so traded) prior to the date of determination of fair market
value; provided, however, if this Warrant is exercised in connection with an
IPO, the fair market value shall be the gross price to the public per share in
such offering.
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EXHIBIT A
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B. If the Company's Common Stock is not traded
Over-The- Counter or on an exchange, the per share fair market value of the
Common Stock shall be the fair market value price per share as determined in
good faith by the Company's Board of Directors.
(c) Stock Certificates. In the event of any exercise of
the rights represented by this Warrant, certificates for the shares of Common
Stock so purchased shall be delivered to the Holder within a reasonable tune
and, unless this Warrant has been fully exercised or has expired, a new Warrant
representing the shares with respect to which this Warrant has not have been
exercised shall be issued to the Holder.
2. Stock Fully Paid; Reservation of Shares. All of the Shares
issuable upon the exercise of this Warrant will, upon issuance and receipt of
the Exercise Price therefor, be fully paid and nonassessable, and free from all
taxes, liens and charges with respect to the issuance thereof. During the period
within which this Warrant may be exercised, the Company shall at all times have
authorized and reserved for issuance sufficient shares of its Common Stock to
provide for the full exercise of this Warrant.
3. Adjustment of Exercise Price and Number of Shares.
Notwithstanding anything to the contrary in this Warrant:
(a) Adjustments. The Exercise Price per share of this
Warrant shall be subject to adjustment from time to time as follows:
(i) Issuance of Common Stock and Common Stock
Equivalents. If, after the date of original issuance of this Warrant but prior
to an IPO effectuated through a firm commitment underwriting at a price per
share (prior to underwriter commissions and offering expenses) of not less than
$12.00 per share (as appropriately adjusted for any subsequent stock splits,
stock dividends, reclassifications or recapitalizations) and with gross proceeds
to the Company (prior to underwriter commissions and offering expenses) of not
less than $ 10,000,000, the Company shall issue (or, pursuant to Subsection
(a)(ii)(3) hereof, shall be deemed to have issued) any Common Stock other than
"Excluded Stock" (as defined below) for a consideration per share less than the
then current Fair Market Value of the Common Stock immediately prior to the
issuance of such Common Stock (excluding stock dividends, subdivisions,
split-ups, combinations, dividends or recapitalizations covered by Subsections
(a)(iv), (v), (vi) and (vii)), the Exercise Price in effect immediately alter
each such issuance shall forthwith be adjusted to a price equal to (A) the
product of such Exercise Price multiplied by (B) the quotient obtained by
dividing:
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EXHIBIT A
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(1) an amount equal to the sum of
(y) the total number of shares of Common
Stock out- standing (including any shares of Common Stock issuable upon exercise
of this Warrant, or deemed to have been issued pursuant to Subsections
(a)(ii)(3) and (a)(iii)) immediately prior to such issuance, plus
(z) the number of shares of Common Stock
the consideration received by the Company upon such issuance would have
purchased at the then current Fair Market Value of the Common Stock, by
(2) (y) the total number of shares of Common
Stock outstanding immediately prior to such issuance of Common Stock (including
any shares of Common Stock issuable upon exercise of this Warrant or deemed to
have been issued pursuant to Subsections (a)(ii)(3) and (a)(iii)) plus
(z) the number of shares of Common Stock
actually issued in the transaction which resulted in the adjustment pursuant to
this Subsection (a)(i).
In each such case the Holder, upon the exercise hereof, shall be entitled to
receive, in lieu of the shares of Common Stock theretofore receivable upon the
exercise of this Warrant, a number of shares of Common Stock determined by (i)
dividing the Exercise Price then in effect by the Exercise Price as adjusted as
provided above as a result of such sale and (ii) multiplying the quotient by the
number of shares of Common Stock called for on the face of this Warrant.
(ii) Treatment of Certain Issuances. For the purposes of
any adjustment of the Exercise Price and the number of shares of Common Stock
issuable upon exercise of this Warrant pursuant to Subsection (a)(i), the
following provisions shall be applicable:
(1) In the case of the issuance of Common Stock
for cash, the consideration shall be deemed to be the amount of cash paid
therefor after deducting any discounts or commissions paid or incurred by the
Company in connection with the issuance and sale thereof.
(2) In the case of the issuance of Common Stock
for a consideration in whole or in part other than cash, the consideration other
than cash shall be deemed to be the fair value thereof as reasonably determined
by the board of directors of the Company, in accordance with generally accepted
accounting principles.
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EXHIBIT A
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(3) In the case of the issuance of(x) options to
purchase or rights to subscribe for Common Stock (other than Excluded Stock),
(y) securities by their terms convertible into or exchangeable for Common Stock
(other than Excluded Stock), or (z) options to purchase or rights to subscribe
for such convertible or exchangeable securities:
(A) the aggregate maximum number of
shares of Common Stock deliverable upon exercise of such options to purchase or
rights to subscribe for Common Stock shall be deemed to have been issued at the
time such options or rights were issued and for a consideration equal to the
consideration (determined in the manner provided in Subsections (a)(ii)(1) and
(a)(ii)(2) above), if any, received by the Company upon the issuance of such
options or rights plus the minimum purchase price provided in such options or
rights for the Common Stock covered thereby;
(B) the aggregate maximum number of
shares of Common Stock deliverable upon conversion of or in exchange for any
such convertible or exchangeable securities, or upon the exercise of options to
purchase or fights to subscribe for such convertible or exchangeable securities
and subsequent conversion or exchange thereof, shall be deemed to have been
issued at the time such securities were issued or such options or rights were
issued and for a consideration equal to the consideration received by the
Company for any such securities and related options or rights (excluding any
cash received on account of accrued interest or accrued dividends), plus the
additional minimum consideration, if any, to be received by the Company upon the
conversion or exchange of such securities or the exercise of any related options
or rights (the consideration in each case to be determined in the manner
provided in Subsections (a)(ii)(1) and (a)(ii)(2) above);
(C) on any change in the number of
shares of Common Stock deliverable upon exercise of any such options or rights
or conversion of or exchange for such convertible or exchangeable securities, or
on any change in the minimum purchase price of such options, rights or
securities, other than a change resulting from the antidilution provisions of
such options, rights or securities, the Exercise Price shall forthwith be
readjusted to such Exercise Price as would have obtained had the adjustment made
upon (x) the issuance of such options, rights or securities not exercised,
converted or exchanged prior to such change or (y) the options or rights related
to such securities not converted or exchanged prior to such change, as the case
may be, been made upon the basis of such change; and
(D) on the expiration of any such
options or rights, the termination of any such rights to convert or exchange or
the expiration of any options or rights related to such convertible or
exchangeable securities, the Exercise Price shall forthwith be readjusted to
such Exercise Price as would have obtained had the adjustment made upon the
issuance of such options, rights, convertible or exchangeable securities or
options or rights relate to such
EXHIBIT A
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convertible or exchangeable securities, as the case may be, been made upon the
basis of the issuance of only the number of shares of Common Stock actually
issued upon the exercise of such options or rights, upon the conversion or
exchange of such convertible or exchangeable securities or upon the exercise of
the options or rights related to such convertible or exchangeable securities, as
the case may be.
(iii) Excluded Stock. "Excluded Stock" shall mean:
(1) all shares of Common Stock issued and
outstanding on the date hereof;
(2) all shares of Series A Preferred Stock,
Series B Preferred Stock and Series C Preferred Stock of the Company (in each
case, outstanding on the date of this Warrant), and the Common Stock into which
such shares of Series A Preferred Stock, Series B Preferred Stock and Series C
Preferred Stock are convertible;
(3) up to 17,500 shares of Series B Preferred
Stock of the Company, 500,000 shares of Common Stock, and 125,000 shares of
Common Stock issuable upon exercise of warrants issued to Venture Lending &
Leasing, Inc., Benchmark Capital Partners, L.P. and Benchmark Founders Fund,
L.P., and WC Investors, LLC, respectively, up to 375,000 shares of Common Stock
issuable upon exercise of Warrants issued to NBC Multimedia, Inc., up to 550,000
shares of Common Stock issuable upon exercise of the warrants issued to General
Electric Capital Corporation and shares of Common Stock issuable upon exercise
of warrants issued to The ▇▇▇▇ Disney Company or its affiliates; and
(4) up to 6,589,546 shares of Common Stock
(and/or options or warrants therefor) issued after February 1, 1995 (and net of
any repurchases) to employees, officers, directors, contractors, advisors,
consultants of the Company pursuant to incentive agreements or plans approved by
the Board of Directors of the Company.
All outstanding shares of Excluded Stock (including shares issuable upon
conversion of the Company's Series A Preferred Stock, the Series B Preferred
Stock and the Series C Preferred Stock) shall be deemed to be outstanding for
all purposes of the computations of Subsection(a)(i).
(iv) Stock Splits and Stock Dividends. If the number of
shares of Common Stock outstanding at any time after the date of original
issuance of this Warrant is increased by a stock dividend payable in shares of
Common Stock or by a subdivision or split-up of shares of Common Stock, then, on
the date such payment is made or such change is effective, the Exercise Price
shall be proportionately decreased and the number of shares of Common Stock
issuable on exercise of this Warrant shall be increased in proportion to such
increase of outstanding shares. Such
EXHIBIT A
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adjustment shall become effective at the close of business on the date the
dividend, subdivision or split-up becomes effective.
(v) Reverse Stock Splits. If the number of shares of
Common Stock outstanding at-any time after the date of original issuance of this
Warrant is decreased by a combination of the outstanding shares of Common Stock,
then, on the effective date of such combination, the Exercise Price shall be
proportionately increased and the number of shares of Common Stock issuable on
exercise of this Warrant shall be decreased in proportion to such decrease in
outstanding shares. Such adjustment shall become effective at the close of
business on the date the combination becomes effective.
(vi) Certain Dividends. In case the Company shall
declare a dividend upon its Common Stock generally payable otherwise than out of
retained earnings or shall distribute to all holders of its Common Stock shares
of its capital stock (other than Common Stock), stock or other securities of
other persons, evidences of indebtedness issued by the Company or other persons,
assets (excluding cash dividends) or options or rights (excluding options to
purchase and rights to subscribe for Common Stock or other securities of the
Company convertible into or exchangeable for Common Stock), then, in each such
case, the Exercise Price shall be adjusted by multiplying the Exercise Price in
effect immediately prior to the date of such dividend or distribution by a
fraction, the numerator of which is the Aggregate Valuation of the Company as of
such date less the fair market value of the cash, securities, indebtedness,
assets or rights so distributed and the denominator of which is the Aggregate
Valuation of the Company. For purposes hereof, "Aggregate Valuation of the
Company" shall mean the Fair Market Value of one share of the Company's Common
Stock, determined in the manner set forth in Section 1(b)(iii), multiplied by
the total number of shares of Common Stock outstanding (including any shares of
Common Stock issuable upon exercise of this Warrant, or deemed to have been
issued pursuant to Subsections 3(a)(ii)(3) and 3(a)(iii)) as of such date.
(vii) Reorganization; Reclassification. In the case, at
any time after the date of original issuance of this Warrant, of any capital
reorganization, or any reclassification of the stock of the Company (other than
as a result of a stock dividend or subdivision, split-up or combination of
shares), the consolidation or merger of the Company with or into another person
(other than a consolidation or merger in which the Company is the continuing
entity and which does not result in any change in the Common Stock), or a sale
or transfer of all or substantially all of the Company's assets, this Warrant
shall, after such reorganization, reclassification, consolidation, merger or
sale, be exercisable for the kind and aggregate number of shares of stock or
other securities or property of the Company or other entity to which the Holder
would have been entitled if, immediately prior to such reorganization,
reclassification, consolidation, merger or sale, such Holder had exercised this
Warrant in full (subject to all adjustments under this Section 3). The
provisions of this clause (vii) shall similarly apply to successive
reorganizations, reclassifications, consolidations, mergers or sales.
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EXHIBIT A
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(viii) All calculations under this Subsection (a) shall
be made to the nearest cent or to the nearest one hundredth (1/100) of a share,
as appropriate.
(b) Minimal Adjustments. No adjustment in the Exercise Price need
be made if such adjustment would result in a change in the Exercise Price of
less than $0.01. Any adjustment of less than $0.01 which is not made shall be
carried forward and shall be made at the time of and together with any
subsequent adjustment which, on a cumulative basis, mounts to an adjustment of
$0.01 or more in the Exercise Price. If, after one or more adjustments to the
Exercise Price pursuant to this Section 3, the Exercise Price cannot be reduced
further without falling below the greater of (i) $0.001 or (ii) the lowest
positive exercise price legally permissible for warrants to acquire shares of
Common Stock, the Company shall make further adjustment to compensate the
holder, consistent with the foregoing principles, as the Board of Directors,
acting in good faith, deems necessary, including an increase in the number of
Shares issuable upon exercise of outstanding Warrants and/or a cash payment to
the holder.
4. Notice of Adjustments. Whenever the number of Shares purchasable
hereunder or the Exercise Price thereof shall be adjusted pursuant to Section 3
hereof, the Company shall provide notice by first class mail to the holder of
this Warrant setting forth, in reasonable detail, the event requiring the
adjustment, the mount of the adjustment, the method by which such adjustment was
calculated, and the number of Shares which may be purchased and the Exercise
Price therefor after giving effect to such adjustment.
5. Fractional Shares. No fractional shares of Common Stock will be
issued in connection with any exercise hereunder. In lieu of such fractional
shares the Company shall make a cash payment therefor based upon the Exercise
Price then in effect.
6. Representations of the Company. The Company represents that all
corporate actions on the part of the Company, its officers, directors and
shareholders necessary for the sale and issuance of the Shares pursuant hereto
and the performance of the Company's obligations hereunder have been taken prior
to and are effective as of the effective date of this Warrant.
7. Representations and Warranties by the Holder. The Holder represents
and warrants to the Company as follows:
(a) This Warrant and the Shares issuable upon exercise thereof
are being acquired for its own account, for investment and not with a view to,
or for resale in connection with, any distribution or public offering thereof
within the meaning of the Securities Act of 1933, as amended (the "Act"). Upon
exercise of this Warrant, the Holder shall, if appropriate under applicable
securities laws, confirm in writing, in a form satisfactory to the Company, that
the securities issuable
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EXHIBIT A
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upon exercise of this Warrant are being acquired for investment and not with a
view toward distribution or resale.
(b) The Holder understands that the Warrant and the Shares have
not been registered under the Act by reason of their issuance in a transaction
exempt from the registration and prospectus delivery requirements of the Act
pursuant to Section 4(2) thereof, that they must be held by the Holder
indefinitely, and that the Holder must therefore bear the economic risk of such
investment indefinitely, unless a subsequent disposition is registered under the
Act or is exempted from such registration. The Holder further understands that
the Shares have not been qualified under the California Securities Law of 1968
(the "California Law") by reason of their issuance in a transaction exempt from
the qualification requirements of the California Law pursuant to Section
25102(f) thereof, which exemption depends upon, among other things, the bona
fide nature of the Holder's investment intent expressed above.
(c) The Holder has such knowledge and experience in financial and
business matters that it is capable of evaluating the merits and risks of
acquiring this Warrant and the Shares issuable upon exercise hereof and of
protecting its interests in connection herewith.
(d) The Holder is able to bear the economic risk of the purchase
of the Shares pursuant to the terms of this Warrant.
8. RESTRICTIVE LEGEND.
The Shares issuable upon exercise of this Warrant (unless
registered under the Act) shall be stamped or imprinted with a legend in
substantially the following form:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED
FOR INVESTMENT AND NOT WITH A VIEW TO, OR IN CONNECTION WITH,
THE SALE OR DISTRIBUTION THEREOF, AND HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED. 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
THE ACT. COPIES OF THE INSTRUMENT 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 CORPORATION AT THE PRINCIPAL
EXECUTIVE OFFICES OF THE CORPORATION.
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EXHIBIT A
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9. Restrictions Upon Transfer and Removal of Legend.
(a) The Company need not register a transfer of Shares bearing
the restrictive legend set forth in Section 8 hereof, unless the conditions
specified in such legend are satisfied. The Company may also' instruct its
transfer agent not to register the transfer of the Shares, unless one of the
conditions specified in the legend referred to in Section 8 hereof is satisfied.
(b) Notwithstanding the provisions of paragraph (a) above, no
opinion of counsel or "no-action" letter shall be necessary for a transfer
without consideration by any holder (i) to an affiliate of the holder, (ii) if
such holder is a partnership, to a partner or retired partner of such
partnership who retires after the date hereof or to the estate of any such
partner or retired partner, (iii) if such holder is a corporation, to a
shareholder of such corporation, or to any other corporation under common
control, direct or indirect, with such holder, or (iv) by gift, will or
intestate succession of any individual holder or individual partner of a holder,
in whole or in part, to his spouse or siblings, or to the lineal descendants or
ancestors of such holder or his spouse, if the transferee agrees in writing to
be subject to the terms hereof to the same extent as if such transferee were the
original holder hereunder.
(c) In order to effect any transfer of all or a portion of this
Warrant or the Shares, the transferor shall deliver a completed and duly
executed Notice of Transfer (attached hereto as Exhibit c).
10. Associated Rights. The Company covenants that the initial Holder
shall be entitled to all such rights as the Company has granted to investors in
the Company generally, including all rights including but not limited to the
registration rights, information rights and rights of first refusal and co-sale,
pursuant to the Third Amended and Restated Investor Rights Agreement dated as of
June 18, 1997, as amended to date (the "Rights Agreement"), including the waiver
by each holder of the subordination rights in paragraph 2.7 contained in the
Rights Agreement, and the Third Amended and Restated Founder's Co-Sale Agreement
dated as of June 17, 1997, as amended. The Company agrees to take promptly all
appropriate steps to obtain all necessary waivers and consents from existing
investors and amend such agreements to provide the initial Holder and its
permitted assignees with such rights.
11. Rights of Shareholders. Notwithstanding Section 10 hereof, holder of
this Warrant shall be entitled, as a Warrant holder, to vote or receive
dividends or be deemed the holder of Common Stock or any other securities of the
Company which may at any time be issuable on the exercise hereof for any
purpose, nor shall anything contained herein be construed to confer upon the
holder of this Warrant, as such, any of the rights of a shareholder of the
Company or any right to vote for the election of directors or upon any matter
submitted to shareholders at any meeting
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EXHIBIT A
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thereof, or to give or withhold consent to any corporate action (whether upon
any recapitalization, issuance of stock, reclassification of stock, change of
par value, consolidation, merger, conveyance, or otherwise) or to receive notice
of meetings, or to receive dividends or subscription rights or otherwise until
the Warrant shall have been exercised and the Shares purchasable upon the
exercise hereof shall have become deliverable, as provided herein.
12. Expiration of Warrant. This Warrant shall expire and shall no longer
be exercisable upon the earlier to occur of:
(a) 5:00 p.m., California local time, on ,2004.
(b) The closing of a merger or consolidation of the Company into
a third party pursuant to which the Company's shareholders immediately prior to
such merger or consolidation own less than fifty percent (50%) of the
outstanding voting securities of the surviving entity;
(c) The closing of a sale of all or substantially all of the
assets of the Company; or
(d) The closing of an IPO.
13. Notices, Etc. All notices and other communications from the Company
to the Holder shall be mailed by first class registered or certified mail,
postage prepaid or sent by nationally recognized express courier, at such
address as may have been furnished to the Company in writing by the Holder.
14. Governing Law, Headings. This Warrant is being delivered in the
State of California and shall be construed and enforced in accordance with and
governed by the laws of such State. The headings in this Warrant are for
purposes of reference only, and shall not limit or otherwise affect any of the
terms hereof.
Issued this 23rd day of March, 1999.
WINK COMMUNICATIONS, INC.
By:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Chief Executive Officer and
President
EXHIBIT A
NOTICE OF EXERCISE
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EXHIBIT A
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TO: WINK COMMUNICATIONS, INC.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: President
1. The undersigned hereby elects to exercise the attached Warrant as to
shares of Common Stock of WINK COMMUNICATIONS, INC. pursuant to the
terms of such Warrant.
2. Method of Exercise (Please ▇▇▇▇ the applicable blank):
The undersigned elects to exercise the attached Warrant by means of a
cash payment, and tenders herewith payment in full for the purchase
price of the shares being purchased, together with all applicable
transfer taxes, if any.
The undersigned elects to exercise the attached Warrant by means of
the net exercise provisions of Section 1(b)(ii) of the Warrant.
3. Please issue a certificate or certificates representing said shares
of Common Stock in the name of the undersigned or in such other name
as is specified below: (Address)
4. The undersigned hereby represents and warrants that the aforesaid
shares of Common Stock are being acquired for the account of the
undersigned for investment and not with a view to, or for resale, in
connection with the distribution thereof, and that the undersigned
has no present intention of distributing or reselling such shares and
all representations and warranties of the undersigned set forth in
Section 7 of the attached Warrant are true and correct
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EXHIBIT A
15
as of the date hereof. In support thereof, the undersigned hereby delivers an
Investment Representation Statement in a form substantially similar to the form
attached to the Warrant as Exhibit B.
(Signature)
Title:
(Date)
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EXHIBIT A
16
EXHIBIT B
INVESTMENT REPRESENTATION STATEMENT
PURCHASER :
SELLER : WINK COMMUNICATIONS, INC.
COMPANY : WINK COMMUNICATIONS, INC.
SECURITY : COMMON STOCK ISSUED UPON EXERCISE OF THE STOCK
PURCHASE WARRANT ISSUED ON MARCH 23, 1999
AMOUNT : SHARES
DATE :
In connection with the purchase of the above-listed Securities, the Purchaser
represents to the Seller and to the Company the following:
(a) Purchaser is aware of the Company's business affairs and
financial condition, and has acquired sufficient information about the Company
to reach an informed and knowledgeable decision to acquire the Securities.
Purchaser is purchasing these Securities for its own account for investment
purposes only and not with a view to, or for the resale in connection with, any
"distribution" thereof for purposes of the Securities Act of 1933, as amended
(the "Securities Act").
(b) Purchaser understands that the Securities have not been
registered under the Securities Act in reliance upon a specific exemption
therefrom, which exemption depends upon, among other things, the bona fide
nature of its investment intent as expressed herein. In this connection,
Purchaser understands that, in the view of the Securities and Exchange
Commission (the "SEC"), the statutory basis for such exemption may be
unavailable if its representation was predicated solely upon a present intention
to hold these Securities for the minimum capital gains period specified under
tax statutes, for a deferred sale, for or until an increase or decrease in the
market price of the Securities, or for a period of one year or any other fixed
period in the future.
(c) Purchaser further understands that the Securities must be held
indefinitely unless subsequently registered under the Securities Act or unless
an exemption from registration is otherwise available. Moreover, Purchaser
understands that the Company is under no obligation to
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EXHIBIT A
17
register the Securities, other than as set forth in the Third Amended and
Restated Investor Rights Agreement dated June 18, 1997 and as may be
subsequently amended. In addition, Purchaser understands that the certificate
evidencing the Securities will be imprinted with a legend which prohibits the
transfer of the Securities 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 the Securities Act.
(d) Purchaser is familiar with the provisions of Rule 144,
promulgated under the Securities Act, which, in substance, permits limited
public resale of "restricted securities" acquired, directly or indirectly, from
the issuer thereof, in a non-public offering subject to the satisfaction of
certain conditions.
The Securities may be resold in certain limited circumstances subject
to the provisions of Rule 144, which requires among other things: (1) the resale
occurring not less than one year after the party has purchased, and made full
payment for, within the meaning of Rule 144, the securities to be sold; and, in
the case of an affiliate, or of a non-affiliate who has held the securities not
less than two years, (2) the availability of certain public information about
the Company, (3) the sale being made through a broker in an unsolicited
"broker's transaction" or in transactions directly with a market maker (as said
term is defined under the Securities Exchange Act of 1934), and (4) the amount
of securities being sold during any three month period not exceeding the
specified limitations stated therein.
(e) Purchaser agrees, in connection with the Company's initial
underwritten public offering of the Company's securities, (1) not to sell, make
short sale of, loan, grant any options for the purchase of, or otherwise dispose
of any shares of Common Stock of the Company held by the undersigned (other than
those shares included in the registration) without the prior written consent of
the Company or the underwriters managing such initial underwritten public
offering of the Company's securities for one hundred eighty (180) days from the
effective date of such registration, and (2) Purchaser further agrees to execute
any agreement reflecting (1) above as may be requested by the underwriters at
the time of the public offering.
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EXHIBIT A
18
(f) Purchaser further understands that in the event all of the
applicable requirements of Rule 144 are not satisfied, registration under the
Securities Act, compliance with Regulation A, or some other registration
exemption will be required; and that, notwithstanding the fact that Rule 144 are
not exclusive, the Staff of the SEC has expressed its opinion that persons
proposing to sell private placement securities other than in a registered
offering and otherwise than pursuant to Rule 144 will have a substantial burden
of proof in establishing that an exemption from registration is available for
such offers or sales, and that such persons and their respective brokers who
participate in such transactions do so at their own risk.
PURCHASER
By:
Title:
Date:
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EXHIBIT A
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EXHIBIT C
NOTICE OF TRANSFER
(To be signed only upon transfer of Warrant)
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto the right represented
by the attached Warrant to purchase * shares of Common Stock of WINK
COMMUNICATIONS, INC., to which the attached Warrant relates, and appoints
Attorney to transfer such right on the books of WINK
COMMUNICATIONS, INC., with full power of substitution in the premises.
Dated:
By:
(Signature must conform in all respects to name
of Holder as specified on the face of the Warrant)
(Address)
Signed in the presence of:
* Insert here the number of shares without making any adjustment for additional
shares of Common Stock or any other stock or other securities or property or
cash which, pursuant to the adjustment provisions of the Warrant, may be
deliverable upon exercise.
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EXHIBIT A