EXHIBIT 2
VOTING AGREEMENT
THIS VOTING AGREEMENT dated as of June 23, 2002 (this
"Agreement"), by and among Liberty Broadband Interactive Television, Inc., a
Delaware corporation ("Parent"), and Wink Interactive, Inc., a Delaware
corporation and a wholly owned subsidiary of Parent ("WII," and together with
Parent, the "Parent Parties") and the stockholders of Wink Communications, Inc.,
a Delaware corporation (the "Company"), listed on Exhibit A attached hereto
(each, a "Stockholder" and, collectively, the "Stockholders"). Capitalized terms
used but not defined herein shall have the meaning set forth in the Merger
Agreement (as defined below).
RECITALS
WHEREAS, Liberty Media Corporation, a Delaware corporation
("Liberty"), the Parent Parties, the Company, and Walnut Merger Corp., a
Delaware corporation and a wholly owned subsidiary of WII ("Merger Sub"),
propose to enter into an Agreement and Plan of Merger dated as of the date
hereof (as such agreement may be modified or amended from time to time, the
"Merger Agreement"), providing for the merger of Merger Sub with and into the
Company, with the Company as the surviving corporation in the merger (the
"Merger"), upon the terms and subject to the conditions set forth in the Merger
Agreement;
WHEREAS, each Stockholder owns certain shares of common stock,
par value $0.001 per share, of the Company (the "Common Stock"); and
WHEREAS, as a condition to their willingness to enter into the
Merger Agreement, Liberty, the Parent Parties and Merger Sub have requested that
each Stockholder enter into this Agreement.
NOW, THEREFORE, to induce Liberty, the Parent Parties and
Merger Sub to enter into, and in consideration of their entering into, the
Merger Agreement, and in consideration of the promises and the representations,
warranties and agreements contained herein, the parties agree as follows:
1. Representations and Warranties of Stockholders. Each of the
Stockholders represents and warrants to the Parent Parties that (a) such
Stockholder owns beneficially (as defined below) the number of shares of Common
Stock set forth opposite such Stockholder's name on Exhibit A attached hereto
(such shares of Common Stock, the "Subject Shares"), free and clear of all Liens
or Restrictions and, except for this Agreement and the Merger Agreement, there
are no options, warrants or other rights, agreements, arrangements or
commitments of any character to which such Stockholder is a party relating to
the pledge, disposition or Voting (as defined in Section 2) of such Subject
Shares and there are no Voting trusts or Voting agreements with respect to such
Subject Shares, (b) such Stockholder does not beneficially own any shares of
Common Stock other than such Stockholder's Subject Shares and does not have any
options, warrants or other rights to acquire any additional shares of capital
stock of the Company or any security exercisable for or convertible into shares
of capital stock of the Company other than those options, warrants or other
rights set forth opposite such Stockholder's name on Exhibit A hereto (such
Stockholder's "Options") and each Stockholder represents and warrants that such
Stockholder shall not exercise any such Options prior to the
termination of this Agreement except in accordance with Section 7 of this
Agreement, (c) such Stockholder has not appointed or granted any proxy, which
appointment or grant is still effective with respect to the Subject Shares or
any New Shares, (d) if such Stockholder is not a natural person, such
Stockholder is duly incorporated or organized and validly existing under the
laws of its jurisdiction of incorporation or organization and is duly authorized
to do business and is in good standing under the laws of its jurisdiction of
incorporation or organization and if such Stockholder is a natural person, such
Stockholder has the capacity to enter into this Agreement, (e) such Stockholder
has full power and authority to enter into, execute and deliver this Agreement
and to perform fully such Stockholder's obligations hereunder and this Agreement
has been duly executed and delivered and constitutes the legal, valid and
binding obligation of such Stockholder enforceable against such Stockholder in
accordance with its terms (except insofar as enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting creditors' rights generally, or by principles governing the
availability of equitable remedies), (f) other than filings under the Exchange
Act, no notices, reports or other filings are required to be made by such
Stockholder with, nor are any consents, registrations, approvals, permits or
authorizations required to be obtained by such Stockholder from, any
Governmental Entity, in connection with the execution and delivery of this
Agreement by such Stockholder, and (g) the execution, delivery and performance
of this Agreement by such Stockholder does not, and the consummation by such
Stockholder of the transactions contemplated hereby will not, (i) violate,
conflict with or constitute a breach of, or a default under, the certificate of
incorporation or by-laws of such Stockholder or any or their comparable
governing instruments (if such Stockholder is not a natural person), (ii) result
in a violation or breach of, or constitute (with or without due notice or lapse
of time or both) a default (or give rise to any right of termination,
cancellation, modification or acceleration) (whether after the giving of notice
or the passage of time or both) under any Contract to which such Stockholder is
a party or by which any of its assets are bound, (iii) will not result in the
creation of any Lien on any of the assets of such Stockholder or (iv) result in
a violation of, under or pursuant to any law, rule, regulation, order, judgment
or decree applicable to such Stockholder or by which any of its assets are
bound. For the purposes of this Agreement, a Person "beneficially" owns a
security if such Person, directly or indirectly, through any contract,
arrangement, understanding or otherwise has (A) the power to vote, or direct the
vote of such security and (B) the power to dispose, or direct the disposition of
such security.
2. Agreement to Deliver Proxy. Each of the Stockholders
severally agrees to deliver to Parent on the date hereof an irrevocable proxy
substantially in the form attached hereto as Exhibit B to Vote such
Stockholder's Subject Shares (a) in favor of approval and adoption of the Merger
Agreement, the Merger and the other transactions contemplated by the Merger
Agreement (the Merger together with such transactions, collectively, the
"Transactions") at any meeting of the stockholders of the Company at which such
matters are considered and at every adjournment or postponement thereof, (b)
against any action, approval or agreement that would compete with or materially
impede, interfere with, adversely affect or tend to discourage the Transactions
or inhibit the timely consummation of the Transactions, including, without
limitation, any Alternative Proposal, (c) against any action, approval or
agreement that would result in a breach in any material respect of any covenant,
representation or warranty or any other obligation of the Company under the
Merger Agreement and (d) except for the Transactions, against any merger,
consolidation, business combination, reorganization, recapitalization,
liquidation or sale or transfer of any material assets of the Company or its
subsidiaries, in each
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case, to the same extent and with the same effect as such Stockholder might or
could do under applicable law, rules and regulations. The proxy delivered by
each of the Stockholders pursuant to this Section 2 shall be irrevocable during
the term of this Agreement to the extent permitted under Delaware law. For
purposes of this Agreement, "Vote" shall include voting in person or by proxy in
favor of or against any action, otherwise consenting or withholding consent in
respect of any action (including, without limitation, consenting in accordance
with Section 228 of the DGCL) or taking other action in favor of or against any
action. "Voting" shall have a correlative meaning. Each of the Stockholders
hereby revokes any and all previous proxies granted with respect to any of the
Subject Shares and shall not hereafter, unless and until this Agreement
terminates pursuant to Section 10 hereof, purport to grant any other proxy or
power of attorney with respect to any of the Subject Shares or the New Shares or
enter into any agreement (other than this Agreement), arrangement or
understanding with any Person, directly or indirectly, to vote, grant any proxy
or give instructions with respect to the voting of any of the Subject Shares or
the New Shares covering the subject matter hereof. Each of the Stockholders
acknowledges receipt and review of a copy of the Merger Agreement.
3. No Proxy Solicitations. Each of the Stockholders severally
agrees that such Stockholder will not, nor will such Stockholder permit any
entity or person under such Stockholder's control, (a) to solicit proxies or
become a "participant" in a "solicitation" (as such terms are defined in
Regulation 14A under the Exchange Act) in opposition to or in competition with
the consummation of the Transactions or otherwise encourage or assist any party
in taking or planning any action which would compete with or materially impede,
interfere with, adversely effect or tend to discourage the Transactions or
inhibit the timely consummation of such Transactions, (b) to directly or
indirectly encourage, initiate or cooperate in a stockholders' Vote or action by
consent of the Company's stockholders in opposition to or in competition with
the consummation of the Transactions or (c) to become a member of a "group" (as
such term is used in Section 13(d) of the Exchange Act) with respect to any
voting securities of the Company for the purpose of opposing or competing with
the consummation of the Transactions.
4. Fiduciary Duties. Notwithstanding anything to the contrary
in this Agreement, none of the agreements of the Stockholders contained herein
shall restrict any Stockholder who is a director or an officer of the Company
from taking any action, in his or her capacity, respectively, (a) as a director,
if such director believes such action is necessary to satisfy such director's
fiduciary duties to the stockholders of the Company, or (b) as an officer, if
such officer is acting at the direction of the Company Board and in accordance
with the terms and provisions of the Merger Agreement, including, without
limitation, Section 6.5 thereof.
5. No Ownership Interest. Nothing contained in this Agreement
shall be deemed to vest in the Parent Parties or Merger Sub any direct or
indirect ownership or incidence of ownership of or with respect to any Subject
Shares. All rights, ownership and economic benefits of and relating to the
Subject Shares shall remain vested in and belong to the Stockholders, and the
Parent Parties and Merger Sub shall have no authority to manage, direct,
superintend, restrict, regulate, govern or administer any of the policies or
operations of the Company or exercise any power or authority to direct the
Stockholders in the voting of any of the Subject Shares, except as otherwise
provided herein.
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6. Transfer and Encumbrance. On or after the date hereof and
during the term of this Agreement, each of the Stockholders agrees not to
transfer, sell, offer, exchange, pledge or otherwise dispose of or encumber any
of such Stockholder's Subject Shares, Options or New Shares (as defined in
Section 7), except, in the case of a Stockholder who is a natural person, such
Stockholder may transfer its Subject Shares, Options or New Shares to (a) the
spouse of such Stockholder, (b) the lineal descendants of such Stockholder, (c)
an inter vivos trust whose sole beneficiaries are such Stockholder's spouse or
lineal descendants or (d) an entity organized under Section 501(c)(3) of the
Code, with the prior written consent of the Parent Parties which consent shall
not be unreasonably withheld; provided, that, in each case, such transferee has
agreed in writing to be bound by this Agreement and provided that such transfer
does not adversely affect the Parent Parties' ability to satisfy the exemption
requirements of Rule 14a 2(b)(2) of the Exchange Act.
7. Additional Purchases. Each of the Stockholders severally
agrees that such Stockholder will not purchase or otherwise acquire beneficial
ownership of any shares of Common Stock after the execution of this Agreement,
including, but not limited to, acquisition by virtue of exercising any Option
(such shares of Common Stock, "New Shares"), nor will any Stockholder
voluntarily acquire the right to Vote or share in the Voting of any shares of
Common Stock other than the Subject Shares, unless such Stockholder agrees to
deliver to Parent immediately after such purchase or acquisition an irrevocable
proxy substantially in the form attached hereto as Exhibit C with respect to
such New Shares. Each of the Stockholders also severally agrees that any New
Shares acquired or purchased by such Stockholder shall be subject to the terms
of this Agreement to the same extent as if they constituted Subject Shares.
8. No Voting Trusts. Each of the Stockholders severally agrees
that such Stockholder will not, nor will such Stockholder permit any Person
under such Stockholder's control to, deposit any of such Stockholder's Subject
Shares or New Shares in a Voting trust or subject any of such Stockholder's
Subject Shares or New Shares to any arrangement with respect to the Voting of
the Subject Shares or New Shares inconsistent with this Agreement.
9. Specific Performance. Each party hereto acknowledges that
it will be impossible to measure in money the damage to the other party if a
party hereto fails to comply with any of the obligations imposed by this
Agreement, that every such obligation is material and that, in the event of any
such failure, the other party will not have an adequate remedy at law or
damages. Accordingly, each party hereto agrees that injunctive relief or other
equitable remedy, in addition to remedies at law or damages, is the appropriate
remedy for any such failure and will not oppose the granting of such relief on
the basis that the other party has an adequate remedy at law.
10. Term and Termination. Subject to Section 14(i), the term
of this Agreement shall commence on the date hereof, and such term and this
Agreement shall terminate upon the earliest to occur of (i) the Effective Time
and (ii) the date on which the Merger Agreement is terminated in accordance with
its terms.
11. Certain Events. Each of the Stockholders severally agrees
that this Agreement and the obligations hereunder shall attach to such
Stockholder's Subject Shares or New Shares and shall be binding upon any entity
or person to which legal or beneficial
4
ownership of such Subject Shares or New Shares shall pass, whether by operation
of law or otherwise, including such Stockholder's heirs, guardians,
administrators or successors.
12. Entire Agreement; Amendment; Waiver. This Agreement
(including the Exhibits and the other documents and instruments referred to
herein) constitutes the entire agreement and supersedes all prior agreements and
understandings, written or oral, among the parties with respect to the subject
matter hereof. This Agreement may not be amended, supplemented or modified, and
no provisions hereof may be modified or waived, except by an instrument in
writing signed by each of the parties hereto. No waiver of any provisions hereof
by any party shall be deemed a waiver of any other provisions hereof by any such
party, nor shall any such waiver be deemed a continuing waiver of any provision
hereof by such party.
13. Notices. All notices, requests, demands, waivers and other
communications required or permitted to be given under this Agreement shall be
in writing and shall be deemed to have been duly given if delivered personally
(by courier service or otherwise) or mailed, certified or registered mail with
postage prepaid, or sent by confirmed telecopier, as follows:
(a) If to the Parent Parties:
Liberty Broadband Interactive Television, Inc.
0000 Xxxx 00xx Xxxxxx, Xxxxx 000
Xxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxx III
Facsimile: (000) 000-0000
with a copy to:
Liberty Media Corporation
00000 Xxxxxxx Xxxxxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxxxx X. Xxxxxxxxx
Facsimile: (000) 000-0000
with an additional copy to:
Xxxxx Xxxxx L.L.P.
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxx X. Xxxxxxx, Esq.
Facsimile: (000) 000-0000
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(b) If to a Stockholder:
c/o Wink Communications, Inc.
0000 Xxxxxx Xxxxxxx Xxxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx Xxxxx Xxxxxxxxxxx
Facsimile: (000) 000-0000
with a copy to:
Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxxxx, Esq.
Facsimile: (000) 000-0000
or to such other Person or address as any party shall specify by notice in
writing to the other party. Any such notice shall be deemed to have been given
(i) upon actual delivery, if delivered by hand, (ii) on the third (3rd) business
day following deposit of such notice, properly addressed with postage prepaid,
with the United States Postal Service if mailed by registered or certified mail,
return receipt requested, or (iii) upon sending such notice, if sent via
facsimile, with confirmation of receipt, except that any notice of change of
address shall be effective only upon actual receipt thereof.
14. Miscellaneous.
(a) Governing Law. THIS AGREEMENT SHALL BE DEEMED TO BE MADE
IN AND IN ALL RESPECTS SHALL BE INTERPRETED, CONSTRUED AND GOVERNED BY AND IN
ACCORDANCE WITH THE LAW OF THE STATE OF DELAWARE WITHOUT REGARD TO THE CONFLICT
OF LAW PRINCIPLES THEREOF.
(b) Venue; Waiver of Jury Trial. The parties hereby
irrevocably submit to the jurisdiction of the courts of the State of Delaware
and the Federal courts of the United States of America located in the State of
Delaware solely in respect of the interpretation and enforcement of the
provisions of this Agreement and of the documents referred to in this Agreement,
and in respect of the transactions contemplated hereby, and hereby waive, and
agree not to assert, as a defense in any action, suit or proceeding for the
interpretation or enforcement hereof or of any such document, that it is not
subject thereto or that such action, suit or proceeding may not be brought or is
not maintainable in said courts or that the venue thereof may not be appropriate
or that this Agreement or any such document may not be enforced in or by such
courts, and the parties hereto irrevocably agree that all claims with respect to
such action or proceeding shall be heard and determined in such a Delaware State
or Federal court. The parties hereby consent to and grant any such court
jurisdiction over the person of such parties and over the subject matter of such
dispute and agree that mailing of process or other papers in
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connection with any such action or proceeding in the manner provided in Section
13 of this Agreement or in such other manner as may be permitted by law shall be
valid and sufficient service thereof.
EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH
MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT
ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY
WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT,
OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. EACH PARTY CERTIFIES AND
ACKNOWLEDGES THAT (i) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY
HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (ii) EACH PARTY
UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (iii) EACH PARTY
MAKES THIS WAIVER VOLUNTARILY, AND (iv) EACH PARTY HAS BEEN INDUCED TO ENTER
INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION 14(b).
(c) Severability. In the event that any provision of the
Agreement is held to be illegal, invalid or unenforceable in a final,
unappealable order or judgment (each such provision, an "invalid provision"),
then such provision shall be severed from this Agreement and the remaining
provisions of this Agreement shall remain binding on the parties hereto. Without
limiting the generality of the foregoing sentence, in the event a change in any
applicable law, rule or regulation makes it unlawful for a party to comply with
any of its obligations hereunder, the parties shall negotiate in good faith a
modification to such obligation to the extent necessary to comply with such law,
rule or regulation that is as similar in terms to the original obligation as may
be possible while preserving the original intentions and economic positions of
the parties as set forth herein to the maximum extent feasible.
(d) Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed to be an original, and all of which
together shall constitute one and the same instrument.
(e) Further Assurances. Each party hereto shall execute and
deliver such additional instruments and other documents and shall take such
further actions as may be necessary or desirable to effectuate, carry out and
comply with all of the terms of this Agreement and the transactions contemplated
hereby.
(f) Headings. All Section headings herein are for convenience
of reference only and are not part of this Agreement, and no construction or
reference shall be derived therefrom.
(g) THIRD PARTY BENEFICIARIES. NOTHING IN THIS AGREEMENT,
EXPRESS OR IMPLIED, IS INTENDED TO CONFER UPON ANY THIRD
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PARTY ANY RIGHTS OR REMEDIES OF ANY NATURE WHATSOEVER UNDER OR BY REASON OF THIS
AGREEMENT.
(h) Assignment. Neither any Stockholder nor any Parent Party
may assign any of his, her or its rights or obligations under this Agreement
without the prior written consent of the other parties hereto, except (i) as
contemplated by Section 6 of this Agreement and (ii) that a Parent Party may
assign its rights and obligations hereunder to any of its direct or indirect
wholly owned subsidiaries (including Merger Sub), but no such assignment shall
relieve such Parent Party of its obligations hereunder if such transferee does
not perform such obligations. Subject to the preceding sentence, this Agreement
will be binding upon, inure to the benefit of and be enforceable by the parties
and their respective successors and assigns.
(i) Effectiveness. The obligations of the Stockholders set
forth in this Agreement shall not be effective or binding upon the Stockholders
until after such time as the Merger Agreement is executed and delivered by
Liberty, the Parent Parties, Merger Sub and the Company.
(j) Joint Participation in Drafting this Agreement. The
parties acknowledge and confirm that each of their respective attorneys have
participated jointly in the drafting, review and revision of this Agreement and
that it has not been written solely by counsel for one party and that each party
has had the benefit of its independent legal counsel's advice with respect to
the terms and provisions hereof and its rights and obligations hereunder. Each
party hereto, therefore, stipulates and agrees that the rule of construction to
the effect that any ambiguities are to be or may be resolved against the
drafting party shall not be employed in the interpretation of this Agreement to
favor any party against another and that no party shall have the benefit of any
legal presumption or the detriment of any burden of proof by reason of any
ambiguity or uncertain meaning contained in this Agreement.
(k) Expenses. Whether or not the Transactions are consummated,
all costs and expenses incurred in connection with this Agreement and the
transactions contemplated hereby will be paid by the party incurring such cost
or expense.
(l) Public Announcements. Without the prior written consent of
the Parent Parties, none of the Stockholders shall issue any press release or
make any public statements with respect to this Agreement, the Merger Agreement
or the Transactions, except as may be required by applicable law or court
process.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the undersigned have executed this
Agreement as of the date first written above.
LIBERTY BROADBAND INTERACTIVE TELEVISION, INC.
By: /s/ Xxxxx X. Xxxxxx III
--------------------------------------------
Name: Xxxxx X. Xxxxxx III
Title: Authorized Signatory
WINK INTERACTIVE, INC.
By: /s/ Xxxxx X. Xxxxxx III
--------------------------------------------
Name: Xxxxx X. Xxxxxx III
Title: President and Chief Executive Officer
XXXXX X. XXXXXXXXX
/s/ Xxxxx X. Xxxxxxxxx
--------------------------------------------
BENCHMARK CAPITAL PARTNERS LP
By: Benchmark Capital Management Co., L.L.C.,
its General Partner
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Managing Member
BENCHMARK FOUNDERS FUND LP
By: Benchmark Capital Management Co., L.L.C.,
its General Partner
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Managing Member
9
XXXX XXXXX XXXXXXXXXXX
/s/ Xxxx Xxxxx Xxxxxxxxxxx
-----------------------------------------------
XXXXXXX XXXXX
/s/ Xxxxxxx Xxxxx
-----------------------------------------------
XXXXX XXXXXXXX
/s/ Xxxxx Xxxxxxxx
-----------------------------------------------
F. XXXXXX XXXXX
/s/ F. Xxxxxx Xxxxx
-----------------------------------------------
XXXXXXX XXXXX
/s/ Xxxxxxx Xxxxx
-----------------------------------------------
XXXXXXX X. XXXXXXXXX
/s/ Xxxxxxx X. Xxxxxxxxx
-----------------------------------------------
XXXXX XXXX
/s/ Xxxxx Xxxx
-----------------------------------------------
XXXXXXX XXXXXXXXXX
/s/ Xxxxxxx XxXxxxxxxx
-----------------------------------------------
XXX XXXXXXXX JR.
/s/ Xxx Xxxxxxxx Jr.
-----------------------------------------------
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EXHIBIT A
STOCKHOLDER OWNERSHIP OF
SUBJECT SHARES AND OPTIONS
--------------------------------------------------------------------------------
Stockholder Subject Shares Options(1)
--------------------------------------------------------------------------------
Xxxxx X. Xxxxxxxxx 3,844,500 0
--------------------------------------------------------------------------------
Benchmark Capital Partners LP 1,093,358 0
--------------------------------------------------------------------------------
Benchmark Founders Fund LP 142,059 0
--------------------------------------------------------------------------------
Xxxx Xxxxx Xxxxxxxxxxx 1,032,333 747,667
--------------------------------------------------------------------------------
Xxxxxxx Xxxxx 337,500 50,000
--------------------------------------------------------------------------------
Xxxxx Xxxxxxxx 100,000 50,000
--------------------------------------------------------------------------------
F. Xxxxxx Xxxxx 81,751 40,000
--------------------------------------------------------------------------------
Xxxxxxx Xxxxx 56,667 137,833
--------------------------------------------------------------------------------
Xxxxxxx X. Xxxxxxxxx 36,032 312,945
--------------------------------------------------------------------------------
Xxxxx Xxxx 18,750 40,000
--------------------------------------------------------------------------------
Xxxxxxx XxXxxxxxxx 13,958 240,445
--------------------------------------------------------------------------------
Xxx Xxxxxxxx Jr. 2,250 50,000
--------------------------------------------------------------------------------
TOTAL 6,759,158 1,668,890
--------------------------------------------------------------------------------
----------
(1) Includes options which the Company has agreed to grant on July 31, 2002
pursuant to the Offer to Exchange (as defined in the Merger Agreement).
EXHIBIT B
FORM OF PROXY
The undersigned, for consideration received, hereby
constitutes and appoints Xxxxx Xxxxxx or Xxxx Xxxxx or another representative of
Liberty Broadband Interactive Television, Inc., a Delaware corporation
("Parent"), designated by it and each of them as my true and lawful attorneys
and proxies, with full power of substitution and resubstitution, and hereby
authorizes each, for and in its name, place and stead, to the same extent and
with the same effect as the undersigned might or could do under applicable law,
rules or regulations (i) to vote all shares of Common Stock, par value $0.001
per share, of Wink Communications, Inc., a Delaware corporation (the "Company"),
owned by the undersigned (the "Subject Shares") as of the date hereof at any
meetings of stockholders of the Company after the date hereof and at any
adjournment or postponement thereof (each, a "Company Meeting") FOR approval and
adoption of the Agreement and Plan of Merger, dated as of June __, 2002 (the
"Merger Agreement"), by and among the Company, Liberty Media Corporation, a
Delaware corporation, Parent, Wink Interactive, Inc., a Delaware corporation and
a wholly owned subsidiary of Parent ("WII," and together with Parent, the
"Parent Parties"), and Walnut Merger Corp., a Delaware corporation and a wholly
owned subsidiary of WII, and the transactions contemplated thereby and AGAINST
(a) any action, approval or agreement that would compete with or materially
impede, interfere with, adversely effect or tend to discourage the transactions
contemplated by the Merger Agreement or inhibit the timely consummation of such
transactions, including, without limitation, any Alternative Proposal, (b) any
action, approval or agreement that would result in a breach in any material
respect of any covenant, representation or warranty or any other obligation of
the Company under the Merger Agreement, or (c) except for the transactions
contemplated by the Merger Agreement, any merger, consolidation, business
combination, reorganization, recapitalization, liquidation or sale or transfer
of any material assets of the Company or its subsidiaries, and (ii) to withhold
consents with respect to such Subject Shares for (a) any action, approval or
agreement that would compete with or materially impede, interfere with,
adversely effect or tend to discourage the transactions contemplated by the
Merger Agreement or inhibit the timely consummation of such transactions,
including, without limitation, any Alternative Proposal, (b) any action,
approval or agreement that would result in a breach in any material respect of
any covenant, representation or warranty or any other obligation of the Company
under the Merger Agreement, or (c) except for the transactions contemplated by
the Merger Agreement, any merger, consolidation, business combination,
reorganization, recapitalization, liquidation or sale or transfer of any
material assets of the Company or its subsidiaries. This proxy is coupled with
an interest, revokes all prior proxies granted by the undersigned and is
irrevocable until such time as the Voting Agreement, dated as of June __, 2002,
by and among certain stockholders of the Company, including the undersigned, and
the Parent Parties terminates in accordance with its terms, at which time this
proxy shall expire.
Dated June __, 2002
---------------------------------
(Signature of Stockholder)
EXHIBIT C
FORM OF PROXY
The undersigned, for consideration received, hereby
constitutes and appoints Xxxxx Xxxxxx or Xxxx Xxxxx or another representative of
Liberty Broadband Interactive Television, Inc., a Delaware corporation
("Parent"), designated by it and each of them as my true and lawful attorneys
and proxies, with full power of substitution and resubstitution and hereby
authorizes each, for and in its name, place and stead, to the same extent and
with the same effect as the undersigned might or could do under applicable law,
rules or regulations (i) to vote the ____ shares of Common Stock, par value
$0.001 per share (the "New Shares"), of Wink Communications, Inc., a Delaware
corporation (the "Company"), purchased or otherwise acquired by the undersigned,
or for which the undersigned has voluntarily acquired the right to vote or share
in the voting of such shares, since the execution of the Voting Agreement, dated
as of June __, 2002 (the "Voting Agreement"), by and among certain stockholders
of the Company, including the undersigned, Parent and Wink Interactive, Inc., a
Delaware corporation and wholly owned subsidiary of Parent ("WII," and together
with Parent, the "Parent Parties"), at any meetings of stockholders of the
Company, after the date hereof and at any adjournment or postponement thereof
(each, a "Company Meeting") FOR approval and adoption of the Agreement and Plan
of Merger, dated as of June ___, 2002 (the "Merger Agreement"), by and among the
Company, Liberty Media Corporation, a Delaware corporation, the Parent Parties
and Walnut Merger Corp., a Delaware corporation and a wholly owned subsidiary of
WII, and the transactions contemplated thereby and AGAINST (a) any action,
approval or agreement that would compete with or materially impede, interfere
with, adversely effect or tend to discourage the transactions contemplated by
the Merger Agreement or inhibit the timely consummation of such transactions,
including, without limitation, any Alternative Proposal, (b) any action,
approval or agreement that would result in a breach in any material respect of
any covenant, representation or warranty or any other obligation of the Company
under the Merger Agreement, or (c) except for the transactions contemplated by
the Merger Agreement, any merger, consolidation, business combination,
reorganization, recapitalization, liquidation or sale or transfer of any
material assets of the Company or its subsidiaries, and (ii) to withhold
consents with respect to such New Shares for (a) any action, approval or
agreement that would compete with or materially impede, interfere with,
adversely effect or tend to discourage the transactions contemplated by the
Merger Agreement or inhibit the timely consummation of such transactions,
including, without limitation, any Alternative Proposal, (b) any action,
approval or agreement that would result in a breach in any material respect of
any covenant, representation or warranty or any other obligation of the Company
under the Merger Agreement, or (c) except for the transactions contemplated by
the Merger Agreement, any merger, consolidation, business combination,
reorganization, recapitalization, liquidation or sale or transfer of any
material assets of the Company or its subsidiaries. This proxy is coupled with
an interest and is irrevocable until such time as the Voting Agreement
terminates in accordance with its terms, at which time this proxy shall expire.
Dated June __, 2002
---------------------------------
(Signature of Stockholder)
