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 ____ day of ______ 20__. WINK COMMUNICATIONS, INC. By: _______________________________ __________________________ Chief Financial Officer ATTACHMENT 1 NOTICE OF EXERCISE TO: WINK COMMUNICATIONS, INC. 1001 Marina Village Parkway Alameda, CA 94501. Attention: Chxxx Xxxxxxxxx Xxxxxxx 0. Xxx xxxxxxxxxxx xxxxxx elects to exercise the attached Warrant so as to purchase __________ shares of Common Stock of WINK COMMUNICATIONS, INC. pursuant to the terms of such Warrant. 2. Method of Exercise (Please mark the applicable blank): ___ The undersigned elects tx xxercise 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 issue exercise provisions of Section 1.2(b) 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: --------------------------------- (Name) --------------------------------- --------------------------------- (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 in violation of the Securities Act of 1933, as amended, and all representations and warranties of the undersigned set forth in the attached Warrant are true and correct 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 Attachment 2. ----------------------------------- (Signature) Title: ------------------------------- ---------------------------- (Date)
Appears in 1 contract
Samples: Common Stock and Warrant Issuance Agreement (Wink Communications Inc)
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 ____ 26 day of ______ 20__May, 1999. WINK COMMUNICATIONS, INC. By: _______________________________ __________________________ /s/ Maggxx Xxxxxxxxxxx ------------------------------------- Maggxx Xxxxxxxxxxx Chief Financial Executive Officer ATTACHMENT 1 and President EXHIBIT A NOTICE OF EXERCISE TO: WINK COMMUNICATIONS, INC. 1001 Marina Village Parkway AlamedaXxxxxx Xxxxxxx Xxxxxxx Xxxxxxx, CA 94501. XX 00000 Attention: Chxxx Xxxxxxxxx XxxxxxxPresident
01. Xxx xxxxxxxxxxx xxxxxx The undersigned hereby elects to exercise the attached Warrant so as to purchase __________ shares of Common Stock of WINK COMMUNICATIONS, INC. pursuant to the terms of such Warrant.
2. Method of Exercise (Please mark the applicable blank): ___ The undersigned elects tx xxercise 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 issue exercise provisions of Section 1.2(b1(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: --------------------------------- (Name) --------------------------------- --------------------------------- (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 in violation of the Securities Act of 1933, as amended, and all representations and warranties of the undersigned set forth in Section 7 of the attached Warrant are true and correct 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 Attachment 2. ----------------------------------- Exhibit B. ---------------------------------------- (Signature) ------------------------------------- Title: ------------------------------- ---------------------------- (Date) ---------------------------------- 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 _________, 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 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, Purcxxxxx xxxerstands 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.
(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
Appears in 1 contract
Samples: Common Stock Purchase Warrant (Wink Communications Inc)
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 ____ day of ______ 20_, 19__. WINK COMMUNICATIONSCOMBICHEM, INC. By: _____________________________________ Title: __________________________________ Chief Financial Officer ATTACHMENT 1 WARRANT HOLDER: By: ________________________ Title: _____________________ NOTICE OF EXERCISE TO: WINK COMMUNICATIONSCOMBICHEM, INC. 1001 Marina Village Parkway Alameda, CA 94501. Attention: Chxxx Xxxxxxxxx XxxxxxxPresident
01. Xxx xxxxxxxxxxx xxxxxx elects to exercise In lieu of exercising the attached Warrant so as for cash, check or cancellation of indebtedness, the undersigned hereby elects to effect the net issuance provision of Section l(b) of the attached Warrant and receive _________________ (leave blank if you choose Alternative No. 2 below) Shares of CombiChem, Inc. pursuant to the terms of the attached Warrant. (Initial here if the undersigned elects this alternative) ________________.
2. The undersigned elects to purchase _____________ shares (leave blank if you choose Alternative No. 1 above) Shares of Common Stock of WINK COMMUNICATIONSCombiChem, INC. Inc. pursuant to the terms of such Warrant.
2. Method of Exercise (Please mark the applicable blank): ___ The undersigned elects tx xxercise the attached Warrant by means of a cash paymentWarrant, and tenders herewith payment in full for of the purchase price of the shares being purchasedfor such Shares in full, together with all applicable transfer taxes, if any. ___ The undersigned elects to exercise the attached Warrant by means of the net issue exercise provisions of Section 1.2(b) of the Warrant.
3. Please issue a certificate or certificates representing said shares of Common Stock Shares in the name of the undersigned or in such other name as is specified below: --------------------------------- ----------------------------- (Name) --------------------------------- --------------------------------- ----------------------------- ----------------------------- (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 thereofthereof in violation of applicable law, and that the undersigned has no present intention of distributing or reselling such shares in violation of the Securities Act of 1933, as amended, applicable law and all representations and warranties of the undersigned set forth in Section 6 of the attached Warrant are true and correct as of the date hereof. In support thereof, the undersigned hereby delivers agrees to execute an Investment Representation Statement in a form substantially similar to the form attached to the Warrant as Attachment 2Exhibit B-2. ----------------------------------- -------------------------------- (Signature) Title: ------------------------------- ---------------------------- :___________________________ ------------------ (Date) -1- 8 EXHIBIT B-2 INVESTMENT REPRESENTATION STATEMENT PURCHASER : _________________________________________________ SELLER : COMBICHEM, INC. COMPANY : COMBICHEM, INC. SECURITY : SHARES OF STOCK, identified in the STOCK PURCHASE WARRANT ISSUED ON ______________, 199__, a copy of which is attached hereto. AMOUNT : ____________________________ SHARES DATE : ________________, 199__ In connection with the purchase of the above-listed Securities, the undersigned represents to the Seller and to the Company the following:
(a) The undersigned 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. The undersigned is purchasing these Securities for his/her 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) The undersigned 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 his/her investment intent as expressed herein. In this connection, the undersigned understands that, in the view of the Securities and Exchange Commission (the "SEC"), the statutory basis for such exemption may be unavailable if this 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) The undersigned 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, the undersigned understands that the Company is under no obligation to register the Securities. In addition, the undersigned understands that the certificate evidencing the Securities will be imprinted with a legend
(d) The undersigned 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 availability of certain public information about the Company, (2) the resale occurring not less than two years 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 less than three years, (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 the amount of securities being sold during any three-month period not exceeding the specified limitations stated therein, if applicable.
(e) The undersigned 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 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) the undersigned further agrees to execute any agreement reflecting (1) above as may be requested by the underwriters at the time of the public offering; provided however that the officers and directors of the Company who own the stock of the Company also agree to such restrictions.
(f) The undersigned 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 is 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.
Appears in 1 contract
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 ____ 26th day of ______ 20__May, 2000. WINK COMMUNICATIONS, INC. By: _______________________________ __________________________ /s/ Maggie Wilderotter ----------------------------- Maggie Wilderotter Chief Financial Officer ATTACHMENT 1 Xxxxxxxxx Xxxxxxx and President EXHIBIT A NOTICE OF EXERCISE TO: WINK COMMUNICATIONS, INC. 1001 Marina Village Parkway Alameda, CA 94501. Attention94501 Atxxxxxxx: Chxxx Xxxxxxxxx XxxxxxxXxxxxxxxx
0. Xxx xxxxxxxxxxx xxxxxx elects to exercise the attached Warrant so as to purchase __________ shares of Common Stock of WINK COMMUNICATIONS, INC. pursuant to the terms of such Warrant.
2. Method of Exercise (Please mark the applicable blank): ___ The undersigned elects tx xxercise 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 issue exercise provisions of Section 1.2(bI (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: --------------------------------- -------------------------------- (Name) --------------------------------- --------------------------------- -------------------------------- -------------------------------- (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 in violation of the Securities Act of 1933, as amended, shares. The undersigned further represents and warrants that all representations and warranties of the undersigned set forth in Section 7 of the attached Warrant are true and correct 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 Attachment 2. ----------------------------------- Exhibit B. -------------------------------- (Signature) Title: ------------------------------- ---------------------------- ------------------------------ -------------------------- (Date) 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 -----------, ------ 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 Purchaser's 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 register the Securities, other than as granted to investors in the Company generally and as additionally set forth in the Fourth Amended and Restated Investor Rights Agreement dated June 30, 1999, as modified by the Consent and Amendment of Investor Rights Agreement dated on or about the date of the Warrant and as may be subsequently amended. In addition, Purchaser understands that, unless the Securities have been registered under the Securities Act, 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.
(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 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 is 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.
Appears in 1 contract
Samples: Common Stock Purchase Warrant (Wink Communications Inc)
Governing Law; Headings. This Warrant is being delivered in the State of California Delaware 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 ____ day of ______ 20__1998. WINK COMMUNICATIONS, TRANSMEDIA NETWORK INC. By: _______________________________ __________________________ Chief Financial Officer ATTACHMENT Its: EXHIBIT 1 --------- NOTICE OF EXERCISE TO: WINK COMMUNICATIONS, TRANSMEDIA NETWORK INC. 1001 Marina Village Parkway Alameda00000 Xxxxxxxx Xxxxxxxxx Xxxxx, CA 94501. Xxxxxxx 00000 Attention: Chxxx Xxxxxxxxx XxxxxxxChief Executive Officer
01. Xxx xxxxxxxxxxx xxxxxx The undersigned hereby elects to exercise the attached Warrant so as to purchase __________ shares of Common Stock of WINK COMMUNICATIONS, TRANSMEDIA NETWORK INC. pursuant to the terms of such the attached Warrant.
2. Method of Exercise (Please mark xxxx the applicable blank): ___ The undersigned elects tx xxercise 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 issue exercise provisions of Section 1.2(b1(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: --------------------------------- (Name) --------------------------------- --------------------------------- (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 in violation of the Securities Act of 1933, as amended, and all representations and warranties of the undersigned set forth in the attached Warrant are true and correct 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 Attachment 2. ----------------------------------- ) (Signature) Title: ------------------------------- ---------------------------- (Date) EXHIBIT 2 --------- NOTICE OF TRANSFER 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 TRANSMEDIA NETWORK INC., to which the attached Warrant relates, and appoints ________________ Attorney-in-Fact to transfer such right on the books of TRANSMEDIA NETWORK INC., with full power of substitution in the premises. Dated: By: (Address) ------------------- * 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. EXHIBIT B --------- OPINION OF COUNSEL FOR PURCHASER --------------------------------
(1) Each of Samstock and TNI is a limited liability company duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is organized.
(2) Each of Samstock and TNI has the limited liability company power and authority to execute and deliver the Purchase Agreement, the Investment Agreement, the Agreement Among Stockholders and all other documents, instruments and other writings to be executed and/or delivered by or on behalf of Samstock and/or TNI to the Company or any of its representatives in connection with the transactions contemplated by thereby (collectively, "Purchaser Transaction Documents"), to perform its obligations thereunder and to consummate the transactions contemplated thereby. The execution, delivery and performance of each of the Purchaser Transaction Documents by Samstock and/or TNI and the consummation by Samstock and/or TNI of the transactions contemplated thereby have been duly authorized by the respective managing members of Samstock and TNI, and no other limited liability company proceedings on the part of Samstock or TNI are necessary to authorize the execution, delivery and performance of the Purchaser Transaction Documents or the transactions contemplated thereby. Each of the Purchaser Transaction Documents has been duly executed and delivered by Samstock and/or TNI, as the case may be, and, assuming due authorization, execution and delivery by the Company, constitutes a legal, valid and binding obligation of Samstock and/or TNI, as the case may be, enforceable against Samstock and/or TNI, as the case may be, in accordance with its terms, except as such enforcement may be subject to (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to creditors' rights generally and (ii) general principles of equity (whether applied in a proceeding at law or in equity).
(3) The execution, delivery and performance of the Purchaser Transaction Documents by Samstock or TNI, as the case may be, does not and will not: (i) conflict with or violate the organizational documents of Samstock or TNI, as the case may be; (ii) conflict with or violate any law, rule, regulation, order, judgment or decree applicable to Samstock or TNI, as the case may be, or by which any of its properties are bound or affected; (iii) require any consent, approval, authorization or permit of, action by, filing with or notification to, any Governmental Entity (other than any filing required under Section 13(a) or (d), 14, 15(d) or 16(a) of the Exchange Act); or (iv) to our knowledge after due inquiry, result in any breach or violation of or constitute a default (or an event which with notice or lapse of time or both could become a default) or result in the loss of a material benefit under, or give rise to any right of termination, amendment, acceleration or cancellation of, or result in the creation of a Lien on any of the property or assets of Samstock or TNI, as the case may be, pursuant to, any Contract, Permit or other instrument or obligation to which Samstock or TNI, as the case may be, is a party or by which Samstock or TNI, as the case may be, or any of its properties are bound or affected, except, in the case of clauses (ii), (iii) and (iv), for any such conflicts, violations, breaches, defaults or other occurrences which could not individually or in the aggregate, reasonably be expected to materially impair the ability of Samstock or TNI, as the case may be, to perform its obligations under the Purchase Agreement. EXHIBIT C --------- OPINION OF COMPANY COUNSEL
(1) Each of the Company and each Subsidiary is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation and has the requisite corporate power and authority to carry on its business as it is now being conducted. Each of the Company and each Subsidiary is duly qualified or licensed as a foreign corporation to do business, and is in good standing, in each jurisdiction (including any foreign country) set forth on Schedule I attached hereto.
(2) The certificates of incorporation of the Company and each Subsidiary and the bylaws of the Company and each Subsidiary as currently in effect (collectively, the "Organizational Documents") are in full force and effect, and, to our knowledge after due inquiry, no other organizational documents are applicable to or binding upon the Company or any Subsidiary.
(3) Upon payment of the Purchase Price, the Shares shall be validly issued, fully paid and nonassessable. Upon exercise of the Warrant, in whole or, from time to time, in part, and payment of the exercise price therefor, all in accordance with the terms of the Warrant, all Warrant Shares issuable upon such exercise shall be validly issued, fully paid and nonassessable.
(4) The Company has all necessary corporate power and authority to execute and deliver the Purchase Agreement, the Investment Agreement, the Agreement Among Stockholders, the Warrant and all other documents, instruments and other writings to be executed and/or delivered by or on behalf of the Company to Purchaser or any of its representatives in connection with the transactions contemplated hereby or thereby (collectively, the "Company Transaction Documents"), to perform its obligations thereunder and to consummate the transactions contemplated thereby. The execution, delivery and performance of each of the Company Transaction Documents by the Company, and the consummation by the Company of the transactions contemplated thereby, have been duly and validly authorized by the Board of Directors of the Company (the "Board"), and no other corporate proceedings on the part of the Company are necessary to authorize the execution, delivery and performance of the Company Transaction Documents or the consummation of the transactions contemplated thereby, other than Stockholder Approval. The Board has approved each of the Company Transaction Documents and the transactions contemplated hereby and thereby so as to render inapplicable to such transactions, including, without limitation, the issuance to Purchaser of the Shares, the Warrant and Warrant Shares, the restrictions contained in Article Seventh of the Certificate of Incorporation of the Company, and the restrictions contained in Section 203 of the Delaware General Corporation Law. Each of the Company Transaction Documents has been duly and validly executed and delivered by the Company and, assuming the due authorization, execution and delivery hereof and thereof by Purchaser, each constitutes a legal, valid and binding obligation of the Company enforceable against the Company in accordance with its terms, except as such enforcement may be subject to (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to creditors' rights generally and
Appears in 1 contract
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 ____ day of ______ 20__. WINK COMMUNICATIONS, INC. By: _______________________________ __________________________ . WINK COMMUNICATIONS, INC. By: /s/ Maggxx Xxxxxxxxxxx ------------------------------------- Maggxx Xxxxxxxxxxx Chief Financial Executive Officer and President ATTACHMENT 1 A-1 NOTICE OF EXERCISE TO: WINK COMMUNICATIONS, INC. 1001 Marina Village Parkway AlamedaXxxxxx Xxxxxxx Xxxxxxx Xxxxxxx, CA 94501. XX 00000 Attention: Chxxx Xxxxxxxxx XxxxxxxPresident
01. Xxx xxxxxxxxxxx xxxxxx The undersigned hereby elects to exercise the attached Warrant so as to purchase __________ shares of Common Stock of WINK COMMUNICATIONS, INC. pursuant to the terms of such the attached Warrant.
2. Method of Exercise (Please mark the xxx applicable blank): ___ The undersigned elects tx xxercise 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 issue exercise provisions of Section 1.2(b2(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: --------------------------------- (Name) --------------------------------- --------------------------------- (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 in violation of the Securities Act of 1933, as amended, and all representations and warranties of the undersigned set forth in Section 8 of the attached Warrant are true and correct 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 Attachment 2. ----------------------------------- ------------------------------------- (Signature) ------------------- Title: ------------------------------- ---------------------------- (Date) ------------------------------ ATTACHMENT A-2 INVESTMENT REPRESENTATION STATEMENT PURCHASER : _________________________ SELLER : WINK COMMUNICATIONS, INC. ISSUER : WINK COMMUNICATIONS, INC. SECURITY : COMMON STOCK ISSUED UPON EXERCISE OF THE STOCK PURCHASE WARRANT ISSUED ON NOVEMBER 30, 1998 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 register the Securities. In addition, Purchaser understands that the certificate evidencing the Securities will be imprinted with a legend which prohibits the transfer of the Securities unless they are registered or such registration is not required in the opinion of counsel for the Company.
(d) Purchaser is familiar with the provisions of Rule 144, promulgated under the Securities Act, which, in substance, permit 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. In particular, the Securities may be resold in certain limited circumstances subject to the provisions of Rule 144, which requires among other things: (1) the availability of certain public information about the Company, (2) 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, (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 the amount of securities being sold during any three month period not exceeding the specified limitations stated therein, if applicable.
(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
Appears in 1 contract
Samples: Warrant Issuance Agreement (Wink Communications Inc)
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 ____ day of ______ 20__. WINK COMMUNICATIONS, INC. By: _______________________________ __________________________ Chief Financial Officer [*] Certain information on this page has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions. ATTACHMENT 1 NOTICE OF EXERCISE TO: WINK COMMUNICATIONS, INC. 1001 Marina Village Parkway AlamedaXxxxxx Xxxxxxx Xxxxxxx Xxxxxxx, CA 94501XX 00000. Attention: Chxxx Xxxxxxxxx XxxxxxxChief Financial Officer
01. Xxx xxxxxxxxxxx xxxxxx The undersigned hereby elects to exercise the attached Warrant so as to purchase __________ shares of Common Stock of WINK COMMUNICATIONS, INC. pursuant to the terms of such Warrant.
2. Method of Exercise (Please mark the xxx applicable blank): ___ The undersigned elects tx xxercise 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 issue exercise provisions of Section 1.2(b) 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: --------------------------------- (Name) --------------------------------- --------------------------------- (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 in violation of the Securities Act of 1933, as amended, and all representations and warranties of the undersigned set forth in the attached Warrant are true and correct 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 Attachment 2. ----------------------------------- (Signature) Title: ------------------------------- ---------------------------- (Date) 18 ATTACHMENT 2 INVESTMENT REPRESENTATION STATEMENT PURCHASER : ------------------------------- SELLER : WINK COMMUNICATIONS, INC. ISSUER : WINK COMMUNICATIONS, INC. SECURITY : COMMON STOCK ISSUED UPON EXERCISE OF THE COMMON STOCK PURCHASE WARRANT ISSUED ON [*], 2001 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 in violation of the Securities Act of 1933, as amended (the "Securities Act").
(b) Purchaser understands that the issuance of the Securities to Purchaser has 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.
(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 register the Securities, other than as granted to investors in the Company generally as set forth in the Fourth Amended and Restated Investor Rights Agreement dated as of June 30, 1999, as amended to date and as further modified by a Consent and Amendment of Investors Rights Agreement dated on or about the date of this Warrant and as may be subsequently amended. In addition, Purchaser understands that, unless the Securities have been registered under the Securities Act, the certificate evidencing the Securities will be imprinted with a legend that prohibits the transfer of the Securities unless and until such time that the Securities are sold pursuant to an effective registration statement under the Securities Act or unless the Company receives an opinion of counsel reasonably acceptable to it stating that such sale or transfer is exempt from 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, permit limited public resale of "restricted securities" acquired, directly or [*] Certain information on this page has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions. indirectly, from the issuer thereof, in a non-public offering subject to the satisfaction of certain conditions. In particular, the Securities may be resold in certain limited circumstances subject to the provisions of Rule 144, which requires among other things: (1) the availability of certain public information about the Company, (2) 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, (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, if applicable.
(e) 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 the exemption provided by Rule 144 is 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.
Appears in 1 contract
Samples: Common Stock and Warrant Issuance Agreement (Wink Communications Inc)
Governing Law; Headings. This Warrant is being delivered in the State of California Delaware 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 ____ day of ______ 20__1998. WINK COMMUNICATIONS, TRANSMEDIA NETWORK INC. By: _______________________________ __________________________ Chief Financial Officer ATTACHMENT Its: EXHIBIT 1 NOTICE OF EXERCISE TO: WINK COMMUNICATIONS, TRANSMEDIA NETWORK INC. 1001 Marina Village Parkway Alameda00000 Xxxxxxxx Xxxxxxxxx Xxxxx, CA 94501. Xxxxxxx 00000 Attention: Chxxx Xxxxxxxxx XxxxxxxChief Executive Officer
01. Xxx xxxxxxxxxxx xxxxxx The undersigned hereby elects to exercise the attached Warrant so as to purchase __________ shares of Common Stock of WINK COMMUNICATIONS, TRANSMEDIA NETWORK INC. pursuant to the terms of such the attached Warrant.
2. Method of Exercise (Please mark xxxx the applicable blank): ___ The undersigned elects tx xxercise 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 issue exercise provisions of Section 1.2(b1(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: --------------------------------- (Name) --------------------------------- --------------------------------- (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 in violation of the Securities Act of 1933, as amended, and all representations and warranties of the undersigned set forth in the attached Warrant are true and correct 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 Attachment 2. ----------------------------------- ) 0 (Signature) Title: ------------------------------- ---------------------------- (Date) EXHIBIT 2 NOTICE OF TRANSFER 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 TRANSMEDIA NETWORK INC., to which the attached Warrant relates, and appoints ________________ Attorney-in-Fact to transfer such right on the books of TRANSMEDIA NETWORK INC., with full power of substitution in the premises. Dated: By: (Address) ------------------- * 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. EXHIBIT B OPINION OF COUNSEL FOR PURCHASER
(1) Each of Samstock and TNI is a limited liability company duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is organized.
(2) Each of Samstock and TNI has the limited liability company power and authority to execute and deliver the Purchase Agreement, the Investment Agreement, the Agreement Among Stockholders and all other documents, instruments and other writings to be executed and/or delivered by or on behalf of Samstock and/or TNI to the Company or any of its representatives in connection with the transactions contemplated by thereby (collectively, "Purchaser Transaction Documents"), to perform its obligations thereunder and to consummate the transactions contemplated thereby. The execution, delivery and performance of each of the Purchaser Transaction Documents by Samstock and/or TNI and the consummation by Samstock and/or TNI of the transactions contemplated thereby have been duly authorized by the respective managing members of Samstock and TNI, and no other limited liability company proceedings on the part of Samstock or TNI are necessary to authorize the execution, delivery and performance of the Purchaser Transaction Documents or the transactions contemplated thereby. Each of the Purchaser Transaction Documents has been duly executed and delivered by Samstock and/or TNI, as the case may be, and, assuming due authorization, execution and delivery by the Company, constitutes a legal, valid and binding obligation of Samstock and/or TNI, as the case may be, enforceable against Samstock and/or TNI, as the case may be, in accordance with its terms, except as such enforcement may be subject to (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to creditors' rights generally and (ii) general principles of equity (whether applied in a proceeding at law or in equity).
(3) The execution, delivery and performance of the Purchaser Transaction Documents by Samstock or TNI, as the case may be, does not and will not: (i) conflict with or violate the organizational documents of Samstock or TNI, as the case may be; (ii) conflict with or violate any law, rule, regulation, order, judgment or decree applicable to Samstock or TNI, as the case may be, or by which any of its properties are bound or affected; (iii) require any consent, approval, authorization or permit of, action by, filing with or notification to, any Governmental Entity (other than any filing required under Section 13(a) or (d), 14, 15(d) or 16(a) of the Exchange Act); or (iv) to our knowledge after due inquiry, result in any breach or violation of or constitute a default (or an event which with notice or lapse of time or both could become a default) or result in the loss of a material benefit under, or give rise to any right of termination, amendment, acceleration or cancellation of, or result in the creation of a Lien on any of the property or assets of Samstock or TNI, as the case may be, pursuant to, any Contract, Permit or other instrument or obligation to which Samstock or TNI, as the case may be, is a party or by which Samstock or TNI, as the case may be, or any of its properties are bound or affected, except, in the case of clauses (ii), (iii) and (iv), for any such conflicts, violations, breaches, defaults or other occurrences which could not individually or in the aggregate, reasonably be expected to materially impair the ability of Samstock or TNI, as the case may be, to perform its obligations under the Purchase Agreement. EXHIBIT C OPINION OF COMPANY COUNSEL
(1) Each of the Company and each Subsidiary is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation and has the requisite corporate power and authority to carry on its business as it is now being conducted. Each of the Company and each Subsidiary is duly qualified or licensed as a foreign corporation to do business, and is in good standing, in each jurisdiction (including any foreign country) set forth on Schedule I attached hereto.
(2) The certificates of incorporation of the Company and each Subsidiary and the bylaws of the Company and each Subsidiary as currently in effect (collectively, the "Organizational Documents") are in full force and effect, and, to our knowledge after due inquiry, no other organizational documents are applicable to or binding upon the Company or any Subsidiary.
(3) Upon payment of the Purchase Price, the Shares shall be validly issued, fully paid and nonassessable. Upon exercise of the Warrant, in whole or, from time to time, in part, and payment of the exercise price therefor, all in accordance with the terms of the Warrant, all Warrant Shares issuable upon such exercise shall be validly issued, fully paid and nonassessable.
(4) The Company has all necessary corporate power and authority to execute and deliver the Purchase Agreement, the Investment Agreement, the Agreement Among Stockholders, the Warrant and all other documents, instruments and other writings to be executed and/or delivered by or on behalf of the Company to Purchaser or any of its representatives in connection with the transactions contemplated hereby or thereby (collectively, the "Company Transaction Documents"), to perform its obligations thereunder and to consummate the transactions contemplated thereby. The execution, delivery and performance of each of the Company Transaction Documents by the Company, and the consummation by the Company of the transactions contemplated thereby, have been duly and validly authorized by the Board of Directors of the Company (the "Board"), and no other corporate proceedings on the part of the Company are necessary to authorize the execution, delivery and performance of the Company Transaction Documents or the consummation of the transactions contemplated thereby, other than Stockholder Approval. The Board has approved each of the Company Transaction Documents and the transactions contemplated hereby and thereby so as to render inapplicable to such transactions, including, without limitation, the issuance to Purchaser of the Shares, the Warrant and Warrant Shares, the restrictions contained in Article Seventh of the Certificate of Incorporation of the Company, and the restrictions contained in Section 203 of the Delaware General Corporation Law. Each of the Company Transaction Documents has been duly and validly executed and delivered by the Company and, assuming the due authorization, execution and delivery hereof and thereof by Purchaser, each constitutes a legal, valid and binding obligation of the Company enforceable against the Company in accordance with its terms, except as such enforcement may be subject to (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to creditors' rights generally and (ii) general principles of equity (whether applied in a proceeding at law or in equity).
(5) The execution, delivery and performance of the Company Transaction Documents by the Company do not and will not: (a) conflict with or violate the Organizational Documents of the Company or any Subsidiary; (b) conflict with or violate any law, rule, regulation, order, judgment or decree applicable to the Company or any Subsidiary or by which its or any of their respective properties are bound or affected; (c) require any consent, approval, authorization or permit of, action by, filing with or notification to, any Governmental Entity; or (d) to our knowledge after due inquiry, result in any breach or violation of or constitute a default (or an event which with notice or lapse of time or both could become a default) or result in the loss by the Company or any Subsidiary of a material benefit under, or give rise to any right of termination, amendment, acceleration or cancellation of, or result in the creation of a Lien on any of the properties or assets of the Company or any Subsidiary pursuant to, any Contract or Permit identified on any schedule to the Purchase Agreement.
(6) The affirmative vote of the holders of no more than a majority of the outstanding shares of Common Stock is the only vote of the holders of any class or series of capital stock or other Equity Securities of the Company necessary to approve the Proxy Proposals.
(7) No "fair price", "moratorium", "control share acquisition" or other similar anti-takeover statute or regulation enacted under state or federal laws or applicable stock exchange rules or regulations, including, without limitation, Section 203 of the Delaware General Corporation Law, applicable to the Company or any Subsidiary is applicable to the transactions contemplated by the Purchase Agreement or any other Company Transaction Document, taken individually or in the aggregate.
(8) Upon the filing of the Charter Amendment with the Delaware Secretary of State, the Company's Certificate of Incorporation shall be in full force and effect as amended as contemplated by the Charter Amendment, and no further action by or on behalf of the Company shall be required therefor.
Appears in 1 contract
Samples: Stock Purchase and Sale Agreement (Transmedia Network Inc /De/)
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 ____ 25th day of ______ 20__February, 1999. WINK COMMUNICATIONS, INC. By: _______________________________ __________________________ /s/ Maggxx Xxxxxxxxxxx ------------------------------------- Maggxx Xxxxxxxxxxx Chief Financial Executive Officer ATTACHMENT 1 and President 11 EXHIBIT A NOTICE OF EXERCISE TO: WINK COMMUNICATIONS, INC. 1001 Marina Village Parkway AlamedaXxxxxx Xxxxxxx Xxxxxxx Xxxxxxx, CA 94501. XX 00000 Attention: Chxxx Xxxxxxxxx XxxxxxxPresident
01. Xxx xxxxxxxxxxx xxxxxx The undersigned hereby elects to exercise the attached Warrant so as to purchase __________ shares of Common Stock of WINK COMMUNICATIONS, INC. pursuant to the terms of such Warrant.
2. Method of Exercise (Please mark the applicable blank): ___ The undersigned elects tx xxercise 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 issue exercise provisions of Section 1.2(b1(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: --------------------------------- (Name) --------------------------------- --------------------------------- (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 in violation of the Securities Act of 1933, as amended, and all representations and warranties of the undersigned set forth in Section 7 of the attached Warrant are true and correct 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 Attachment 2. ----------------------------------- Exhibit B. -------------------------------- (Signature) ------------------------------ Title: ------------------------------- ---------------------------- (Date) -------------------------- -11- 12 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 _____________, 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 register the Securities. In addition, Purchaser understands that the certificate evidencing the Securities will be imprinted with a legend which prohibits the transfer of the Securities unless they are registered or such registration is not required in the opinion of counsel for the Company.
(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,
(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
Appears in 1 contract
Samples: Common Stock Purchase Warrant (Wink Communications Inc)
Governing Law; Headings. This Warrant is being delivered in the State of California New York 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 ____ day of ______ 20__on December 19, 1996. WINK COMMUNICATIONSAVESTA TECHNOLOGIES, INC. By: _______________________________ __________________________ Chief Financial Officer ATTACHMENT 1 /s/ Xxx Xxxxx ---------------------------------- Title: President/CEO ------------------------------- EXHIBIT A NOTICE OF EXERCISE TO: WINK COMMUNICATIONSAVESTA TECHNOLOGIES, INC. 1001 Marina Village Parkway Alameda, CA 94501. New York Attention: Chxxx Xxxxxxxxx XxxxxxxPresident
01. Xxx xxxxxxxxxxx xxxxxx The undersigned hereby elects to exercise the attached Warrant so as to purchase __________ shares of Common Stock of WINK COMMUNICATIONSAVESTA TECHNOLOGIES, INC. pursuant to the terms of such the attached Warrant.
2. Method of Exercise (Please mark initial the applicable blank): ___ The undersigned elects tx xxercise 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 issue exercise provisions of Section 1.2(b1 (b) 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: --------------------------------- ---------------------------------------------- (Name) --------------------------------- --------------------------------- ---------------------------------------------- ---------------------------------------------- (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 in violation of the Securities Act of 1933, as amended, and all representations and warranties of the undersigned set forth in Section 7 of the attached Warrant are true and correct 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 Attachment 2. ----------------------------------- (Signature) Title: ------------------------------- ---------------------------- (Date)Exhibit B.
Appears in 1 contract
Samples: Common Stock Purchase Warrant (Avesta Technologies Inc)
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 ____ 20th day of ______ 20__October, 2000. WINK COMMUNICATIONS, INC. By: _______________________________ __________________________ /s/ Howard Schrott ----------------------------- Howard Schrott Chief Financial Officer Fixxxxxxx Xxxxxxr ATTACHMENT 1 NOTICE OF EXERCISE TO: WINK COMMUNICATIONS, INC. 1001 Marina Village Parkway Alameda, CA 94501. 94501 Attention: Chxxx Cxxxx Xxxxxxxxx Xxxxxxx
0. Xxx xxxxxxxxxxx xxxxxx xxxxxy elects to exercise the attached Warrant so as to purchase __________ shares of Common Stock of WINK COMMUNICATIONS, INC. pursuant to the terms of such Warrant.
2. Method of Exercise (Please mark the applicable blank): ___ The undersigned elects tx xxercise 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 issue exercise provisions of Section 1.2(b1.2(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: --------------------------------- -------------------------------- (Name) --------------------------------- --------------------------------- -------------------------------- -------------------------------- (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 in violation of the Securities Act of 1933, as amended, and all representations and warranties of the undersigned set forth in Section 7 of the attached Warrant are true and correct 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 Attachment 2. ----------------------------------- -------------------------------- (Signature) Title: ------------------------------- ---------------------------- ----------------------------- ----------------------------- (Date)
Appears in 1 contract
Samples: Common Stock Purchase Warrant (Wink Communications Inc)
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 Statethe State of New York. 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 ____ day of ______ 20__. WINK COMMUNICATIONS, INC. "COMPANY" OLYMPIC CASCADE FINANCIAL CORPORATION By: _______________________________ __________________________ /s/ Mxxx Xxxxxxxxxx ------------------------- Name: Mxxx Xxxxxxxxxx Title: Chief Financial Executive Officer ATTACHMENT 1 EXHIBIT A NOTICE OF EXERCISE TO: WINK COMMUNICATIONS, INC. 1001 Marina Village Parkway Alameda, CA 94501. Attention: Chxxx Xxxxxxxxx XxxxxxxOLYMPIC CASCADE FINANCIAL CORPORATION
0. Xxx xxxxxxxxxxx xxxxxx (i) The undersigned hereby elects to exercise the attached Warrant so as to purchase ___________ shares of Common Stock of WINK COMMUNICATIONS, INC. pursuant to the terms of such Warrant.
2. Method of Exercise (Please mark the applicable blank): ___ The undersigned elects tx xxercise the attached Warrant by means of a cash paymentWarrant, and tenders herewith payment in full for of 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 issue exercise provisions of Section 1.2(b) of the Warrantsuch Common Stock in full.
3. (ii) 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: --------------------------------- Name: Address:
(Nameiii) --------------------------------- --------------------------------- (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 or, for resale, resale in connection with the distribution thereof, and that the undersigned has no present intention of distributing or reselling such shares shares. By: -------------------------------------------------- Name: ------------------------------------------------ Title: ----------------------------------------------- Date: ------------------------------------------------ EXHIBIT B INVESTMENT REPRESENTATION STATEMENT PURCHASER: COMPANY: OLYMPIC CASCADE FINANCIAL CORPORATION SECURITY: COMMON STOCK AMOUNT: DATE: In connection with the purchase of the above-listed securities (the "Securities"), I, the Purchaser, represent to the Company the following:
(a) I am aware of the Company's business affairs and financial condition, and have acquired sufficient information about the Company to reach an informed and knowledgeable decision to acquire the Securities. I am purchasing these Securities for my own account for investment purposes only and not with a view to, or for the resale in violation connection with, any "distribution" thereof for purposes of the Securities Act of 19331933 (the "Securities Act").
(b) I understand 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 my investment intent as amendedexpressed herein. In this connection, and all representations and warranties I understand that, in the view of the undersigned Securities and Exchange Commission (the "SEC"), the statutory basis for such exemption may be unavailable if my 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) I further understand that the Securities must be held for at least one (1) year under Rule 144 promulgated under the Securities Act, unless subsequently registered under the Securities Act or unless an exemption from registration is otherwise available. Moreover, I understand that the Company is under no obligation to register the Securities except as set forth in the attached Warrant are true and correct as Registration Rights Agreement. In addition, I understand that the certificate evidencing the Securities will be imprinted with a legend which prohibits the transfer of the date hereofSecurities unless they are registered or such registration is not required in the opinion of counsel for the Company.
(d) I am aware of 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 (or from an affiliate of such issuer), in a non-public offering subject to the satisfaction of certain conditions.
(e) I am aware that the Securities involve a high degree of risk and that I may suffer a total loss of my investment. In support thereofI have been provided with the Company's periodic reports filed with the Securities and Exchange Commission under the Securities Exchange Act of 1934, as amended (the "34 Act Filings"), including the Company's most recently filed Annual Report on Form 10-K, Quarterly Report on Form 10-Q and Proxy Statement on Schedule 14A. I have read the information in such reports, including the information under the caption "Risk Factors" contained in the Company's 34 Act Reports.
(f) I further understand that in the event all of the 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 is not exclusive, the undersigned hereby delivers an Investment Representation Statement Staff of the SEC has expressed its opinion that persons proposing to sell private placement securities other than in a form substantially similar registered offering and otherwise than pursuant to the form attached to the Warrant as Attachment 2. ----------------------------------- (Signature) Title: ------------------------------- ---------------------------- (Date)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.
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Samples: Common Stock Purchase Warrant (Triage Partners LLC)
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 ______ 20__March, 1999. WINK COMMUNICATIONS, INC. By: _______________________________ __________________________ Maggxx Xxxxxxxxxxx Chief Financial Executive Officer ATTACHMENT 1 and President EXHIBIT A NOTICE OF EXERCISE EXHIBIT A TO: WINK COMMUNICATIONS, INC. 1001 Marina Village Parkway AlamedaXxxxxx Xxxxxxx Xxxxxxx Xxxxxxx, CA 94501. XX 00000 Attention: Chxxx Xxxxxxxxx XxxxxxxPresident
01. Xxx xxxxxxxxxxx xxxxxx The undersigned hereby elects to exercise the attached Warrant so as to purchase __________ shares of Common Stock of WINK COMMUNICATIONS, INC. pursuant to the terms of such Warrant.
2. Method of Exercise (Please mark the xxx applicable blank): ___ The undersigned elects tx xxercise 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 issue exercise provisions of Section 1.2(b1(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: --------------------------------- (Name) --------------------------------- --------------------------------- (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 in violation of the Securities Act of 1933, as amended, and all representations and warranties of the undersigned set forth in Section 7 of the attached Warrant are true and correct 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 Attachment 2. ----------------------------------- Exhibit B. (Signature) Title: ------------------------------- ---------------------------- (Date) EXHIBIT A 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 EXHIBIT A 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.
(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
Appears in 1 contract
