EXHIBIT 10.52
COMMON STOCK PURCHASE WARRANT
THIS WARRANT AND THE SHARES OF COMMON STOCK THAT MAY BE PURCHASED UPON THE
EXERCISE OF THIS WARRANT HAVE BEEN ACQUIRED SOLELY FOR INVESTMENT AND HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR ANY
STATE SECURITIES LAWS. SUCH SECURITIES MAY NOT BE SOLD, OFFERED FOR SALE,
PLEDGED OR HYPOTHECATED IN THE ABSENCE OF SUCH REGISTRATION OR AN OPINION OF
COUNSEL SATISFACTORY TO THE COMPANY AND ITS COUNSEL THAT SUCH SALE, OFFER OR
PLEDGE IS EXEMPT FROM THE REGISTRATION AND PROSPECTUS DELIVERY REQUIREMENTS OF
THE ACT AND OF ANY APPLICABLE STATE SECURITIES LAWS, UNLESS SOLD PURSUANT TO
RULE 144 UNDER THE ACT.
DATE: NOVEMBER 21, 2000
VOID AFTER: DECEMBER 31, 2005
WINK COMMUNICATIONS, INC.
WARRANT TO PURCHASE SHARES OF COMMON STOCK
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THIS CERTIFIES THAT, for value received, Comcast Wink, Inc., a Delaware
corporation, or its registered assigns (the "HOLDER") is entitled to subscribe
for and purchase from Wink Communications, Inc., a Delaware corporation with its
principal office at 000 0 Xxxxxx Xxxxxxx Xxxxxxx, Xxxxxxx, XX (the "COMPANY"), a
certain number of validly issued, fully paid and non-assessable shares (the
"SHARES") of Common Stock of the Company, par value $0.001 per share (the
"COMMON STOCK") equal to the Warrant Number (as hereinafter defined) as in
effect from time to time (as adjusted through adjustments to the Warrant Factors
(as hereinafter defined) pursuant to Section 3 hereof), at a purchase price of
$7.625 per share (as adjusted pursuant to Section 3 hereof, the "EXERCISE
PRICE"), which is the closing price of the Common Stock on the Nasdaq National
Market System on the effective date of the Cable Affiliation Agreement of even
date herewith between the Company and the initial Holder hereof (the
"AFFILIATION AGREEMENT"), subject to the provisions and upon the terms and
conditions hereinafter set forth.
1. Exercise; Payment.
1.1 Time of Exercise.
(a) This Warrant shall be exercisable with respect to the number of
Shares as is equal to the Warrant Number as in effect from time to time (as
adjusted through adjustments to
the Warrant Factors pursuant to Section 3 hereof), at any time from the date of
issuance until its expiration pursuant to Section 11 hereof.
(b) The "WARRANT NUMBER" shall equal, from time to time and at any
time, (i) the product obtained by multiplying the Base Warrant Factor by five
hundred thousand (500,000), plus (ii) the product obtained by multiplying the
First Tier Warrant Factor (as hereinafter defined) by the total number of First
Tier Customers (as hereinafter defined) activated on or before November 21,
2003, plus (iii) the product obtained by multiplying the Second Tier Warrant
Factor (as hereinafter defined) by the total number of First Tier Customers
activated after November 21, 2003, plus (iv) the product obtained by multiplying
the Second Tier Warrant Factor by the total number of Second Tier Customers (as
hereinafter defined), minus (v) the product obtained by multiplying the Base
Warrant Factor by the number of Shares with respect to which this Warrant has
heretofore been exercised.
(c) For purposes of this Warrant, the term "CUSTOMER" shall mean a
Comcast two-way digital cable service customer to whom Wink Service is
commercially deployed pursuant to the Affiliation Agreement, the term "FIRST
TIER CUSTOMER" shall mean each Customer up to and including the one Millionth
(1,000,000th) Customer, and the term "SECOND TIER CUSTOMER" shall mean each new
Customer in excess of one million (1,000,000) up to and including the two
millionth (2,000,000th) Customer.
(d) For purposes of this Warrant, the term "WARRANT FACTORS" shall
mean the Base Warrant Factor, the First Tier Warrant Factor and the Second Tier
Warrant Factor, where the "BASE WARRANT FACTOR" shall equal 1.0, the "FIRST TIER
WARRANT FACTOR" shall equal 0.5 and the "SECOND TIER WARRANT FACTOR" shall equal
0.25, each subject to adjustment as described in Section 3.
1.2 Method of Exercise.
(a) Cash Exercise. The purchase rights represented by this Warrant may
be exercised by the Holder, in whole or in part, by the surrender of this
Warrant (with the notice of exercise form attached hereto as Attachment I and
the investment representation statement attached as Attachment 2, each duly
executed) at the principal office of the Company, and by the payment to the
Company, by certified, cashier's or other check acceptable to the Company, of an
amount equal to the aggregate Exercise Price of the Shares being purchased.
(b) Net Issue Exercise. In lieu of exercising this Warrant for cash,
the Holder may elect to receive Shares equal to the value of this Warrant (or
the portion thereof being canceled) by surrender of this Warrant at the
principal office of the Company together with notice of such election, in which
event the Company shall issue to the Holder a number of shares of the Company's
Common Stock computed using the following formula:
X = Y (A-B)
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A
Where: X = the number of Shares to be issued to the Holder.
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Y = the number of Shares purchasable under this Warrant (or the
portion thereof being exercised).
A = the Current Market Price (as defined below) of one share of the
Company's Common Stock, as defined below.
B = the Exercise Price (as adjusted to the date of such calculation).
(c) Current Market Price. For purposes of this Section 2, the Current
Market Price of the Company's Common Stock shall mean:
(i) The average closing ask price of the Company's Common Stock
quoted in the NASDAQ Over-the-Counter Market Summary or the average closing
price quoted on any national securities exchange on which the Common Stock is
listed, whichever is applicable, as published in the Western Edition of The Wall
Street Journal for the ten trading days prior to the date of determination of
fair market value;
(ii) If the Company's Common Stock is not traded Over-the-Counter
or on an exchange, the per share fair market value of the Common Stock shall be
the fair market value price per share as determined in good faith by the
Company's Board of Directors.
1.3 Stock Certificates. Any exercise of this Warrant shall be deemed to
have occurred immediately prior to the close of business on the date of its
surrender for exercise as provided above, and the person entitled to receive the
Shares issuable upon such exercise shall be treated for all purposes as the
holder of such Shares of record as of the close of business on such date. In the
event of any exercise of the rights represented by this Warrant, certificates
for the Shares so purchased shall be delivered to the Holder within a reasonable
time, and, unless this Warrant has been fully exercised or has expired, a new
Warrant representing the Shares with respect to which this Warrant shall not
have been exercised shall also be issued to the Holder within such time, which
new Warrant shall in all other respects be identical to this Warrant.
2. Stock Fully Paid; Reservation of Shares. All of the Shares issuable upon
the exercise of the rights represented by this Warrant shall, upon issuance and
receipt of the Exercise Price therefor, be validly issued, fully paid and
non-assessable, and free from all taxes, liens and charges with respect to the
issue thereof. During the period within which the rights represented by this
Warrant may be exercised, the Company shall at all times have authorized and
reserved for issuance a sufficient number of shares of its Common Stock to
provide for the exercise of the rights represented by this Warrant.
3. Adjustment of Exercise Price and Number of Shares. The Exercise Price, the
Warrant Factors and the kind and amount of securities purchasable upon the
exercise of this Warrant shall be subject to adjustment from time to time upon
the occurrence of certain events, as follows:
3.1 Reclassification, Consolidation, Merger or Sale of Assets. In case of
(a) any reclassification, recapitalization or other change in the outstanding
securities issuable upon exercise of this Warrant (other than a change in par
value or as a result of a subdivision or
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combination), (b) any consolidation or merger of the Company with or into
another corporation (other than a merger with another corporation in which the
Company is the surviving corporation and which does not result in any
reclassification, recapitalization or other change in the outstanding securities
issuable upon exercise of this Warrant), or (c) any sale of all or substantially
all of the assets of the Company, the Company or such successor or purchasing
corporation, as the case may be, shall, in connection with such transaction,
execute and deliver to the Holder a new Warrant (in a form identical in all
material respects to this Warrant and without payment of any additional
consideration therefor), providing that the Holder shall have the right to
exercise such new Warrant and procure upon such exercise and payment of the same
aggregate Exercise Price, in lieu of the shares of Common Stock theretofore
issuable upon exercise of this Warrant, the kind and amount of shares of stock,
other securities, money and property receivable upon such reclassification,
recapitalization, change, consolidation, merger or sale of assets by a holder of
an equivalent number of shares of Common Stock issuable upon exercise of this
Warrant had it been exercised immediately prior to such reclassification,
recapitalization, change, consolidation, merger, or sale of assets. If the
holders of the Common Stock may elect from choices the kind and amount of shares
of stock, other securities, money and property receivable upon such
reclassification, recapitalization, change, consolidation, merger or sale of
assets, then for the purpose of this Section 3.1 the kind and amount of shares
of stock, other securities, money and property receivable upon such
reclassification, recapitalization, change, consolidation, merger or sale of
assets shall be deemed to be the choice specified by the Holder, which
specification shall be made by the Holder no later than the date upon which the
holders of Common Stock are required to make their specification known to the
Company. If the Holder fails to make any specification, the Holder's choice
shall be deemed to be whatever choice is made by a plurality of holders of
Common Stock not affiliated with the Company or the other person to the
consolidation, merger or sale of assets. Such new Warrant shall provide for
adjustments that, for events subsequent to the effective date of such new
Warrant, shall be as nearly equivalent as may be practicable to the adjustments
provided for in this Section 3. The above provisions of this Section 3.1 shall
similarly apply to successive reclassifications, recapitalizations, changes,
consolidations, mergers or sales of all or substantially all of the Company's
assets.
3.2 Stock Splits. Dividends and Combinations. In the event that the
Company shall at any time (a) subdivide the outstanding shares of Common Stock
or (b) issue a dividend or other distribution on its outstanding shares of
Common Stock in Common Stock or any other security convertible into or
exchangeable for shares of Common Stock (other than any rights, options or
warrants described in Section 3.3), the Exercise Price in effect at the close of
business on the date on which such subdivision becomes effective or the date
fixed for determination of stockholders entitled to receive such dividend or
other distribution, as the case may be, shall be proportionately decreased, and,
conversely, in the event that the Company shall at any time combine the
outstanding shares of Common Stock, the Exercise Price in effect at the close of
business on the date on which such combination becomes effective shall be
proportionately increased. Any increase or decrease in the Exercise Price made
pursuant to this Section, 3.2 shall become effective at the close of business on
the date on which such subdivision or combination becomes effective or the date
fixed for determination of stockholders entitled to receive such dividend or
other distribution, as the case may be.
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3.3 Rights. Options and Warrants. In the event that the Company shall at
any time issue rights, options or warrants to all holders of its Common Stock
generally entitling them to subscribe for or purchase shares of Common Stock or
any security convertible into or exchangeable for shares of Common Stock (such
rights, options or warrants not being available on an equivalent basis to the
Holder of the Warrant upon exercise) at a price per share less than the Current
Market Price of the Common Stock on the date fixed for determination of
stockholders entitled to receive such rights, options or warrants (other than
pursuant to a dividend reinvestment plan), (a) the Exercise Price in effect at
the close of business on the date fixed for such determination shall be reduced
by multiplying such Exercise Price by a fraction of which (i) the numerator
shall be the number of shares of Common Stock outstanding at the close of
business on the date fixed for such determination plus the number of shares of
Common Stock that the aggregate of the offering price of the total number of
shares of Common Stock so offered for subscription or purchase would purchase at
such Current Market Price and (ii) the denominator shall be the number of shares
of Common Stock outstanding at the close of business on the date fixed for such
determination plus the number of shares of Common Stock so offered for
subscription or purchase (or such number of shares of Common Stock underlying
any convertible securities so offered for subscription or purchase), such
reduction to become effective at the close of business on the date fixed for
such determination, and (b) if any such rights, options or warrants expire or
terminate without having been exercised or are exercised for consideration
different from that utilized in the computation of any adjustment or adjustments
on account of the issuance of such rights, options or warrants, the Exercise
Price with respect to any portion of the Warrant not theretofore exercised shall
be readjusted such that the Exercise Price would be the same as would have
resulted had such adjustment been made without regard to the issuance of such
expired or terminated rights, options or warrants or based upon the actual
consideration received upon exercise thereof, as the case may be, which
readjustment shall become effective upon such expiration, termination or
exercise, as applicable; provided, however, that all readjustments in the
Exercise Price based upon any expiration, termination or exercise for a
different consideration of any such right, option or warrant, in the aggregate,
shall not cause the Exercise Price to exceed the Exercise Price in effect
immediately prior to the time such rights, options or warrants were initially
issued (without regard to any other adjustments of such number under this
Section 3.3 that may have been made since the date of the issuance of such
rights, options or warrants). For the purposes of this Section 3.3, the issuance
of any options, rights or warrants or any shares of Common Stock (whether
treasury shares or newly issued shares) pursuant to any employee (including
consultants and directors) benefit or stock option or purchase plan or program
of the Company shall not be deemed to constitute an issuance of Common Stock or
options, rights or warrants to which this Section 3.3 applies. Notwithstanding
anything herein to the contrary, no further adjustment to the Exercise Price
shall be made upon the issuance or sale of Common Stock upon conversion or
exchange of any convertible securities, if any adjustment in the Exercise Price
was made or required to be made upon the exercise, issuance or sale of such
rights, options, warrants or securities (except for any readjustment due to the
exercise of any such rights, options, warrants or other securities for
consideration different from that utilized in the computation of any
adjustments, as contemplated in this Section 3.3).
3.4 In-Kind Distributions. In the event that the Company shall, by
dividend or otherwise, distribute to all holders of its Common Stock generally
evidences of its indebtedness
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or assets (including securities, but excluding any rights, options or warrants
referred to in Section 3.3, and dividend of distribution paid exclusively in
cash and any dividend referred to in Section 3.2), the Exercise Price in effect
at the close of business on the date fixed for the determination of stockholders
entitled to receive such distribution shall be adjusted by multiplying such
Exercise Price by a fraction of which (a) the numerator shall be the Current
Market Price at the close of business on the date fixed for such determination
minus the fair market value of the portion of the assets or evidences of
indebtedness so distributed applicable to one share of Common Stock (as
determined in good faith by the Board of Directors), and (b) the denominator
shall be such Current Market Price, such adjustment to become effective at the
close of business on the date fixed for such determination.
3.5 Adjustments to the Warrant Factors. Whenever there shall be any change
in the Exercise Price under this Section 3, then there shall be an ad adjustment
(to the nearest one hundred thousandth) in each of the Warrant Factors, which
adjustments shall become effective at the time such change in the Exercise Price
becomes effective and shall be made by multiplying each of the Warrant Factors
in effect immediately before such change in the Exercise Price by a fraction the
numerator of which is the Exercise Price immediately before such change and the
denominator of which is the Exercise Price immediately after such change.
3.6 De Minimis Adjustments. No adjustment in the Exercise Price shall
be required unless such adjustment (plus any adjustments not previously made by
reason of this Section 3.6) would require an increase or decrease of at least 1%
in such Exercise Price; provided, however, that any adjustments that by reason
of this Section 3.6 are not required to be made shall be carried forward and
taken into account in any subsequent adjustment. Notwithstanding the foregoing,
any adjustments that by reason of this Section 3.6 are not required to be made
shall be made no later than the expiration of the right to exercise this Warrant
or a portion hereof.
4. Notice of Adjustments. Whenever the Exercise Price, the Warrant Factors or
the kind and amount of securities purchasable hereunder shall be adjusted
pursuant to Section 3 hereof, the Company shall provide written notice to the
Holder setting forth, in reasonable detail, the event requiring the adjustment,
the amount of the adjustment, the method by which such adjustment was
calculated, and the new Exercise Price, Warrant Factors or kind and amount of
securities purchasable hereunder, as applicable, after giving effect to such
adjustment.
5. Fractional Shares. No fractional shares of Common Stock will be issued in
connection with any exercise hereunder. In lieu of such fractional shares, the
Company shall make a cash payment therefor equal to the Current Market Value
multiplied by such fraction.
6. Representations and Warranties and Covenants of the Company.
6.1 The Company represents and warrants that (a) the Company is a
corporation duly organized and existing under the laws of the State of Delaware
and is in good standing under such laws, and has requisite corporate power and
authority to own and operate its properties and assets and carry on its business
as currently conducted; (b) the Company has all requisite legal and corporate
power and authority to execute and deliver this Warrant, to issue the Shares
upon the exercise of this Warrant and to carry out and perform its obligations
under the terms of this
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Warrant; (c) all corporate actions on the part of the Company, its officers,
directors and stockholders necessary for the sale and issuance of this Warrant
(and the Shares issuable upon the exercise hereof) and the performance of the
Company's obligations hereunder were taken prior to and are effective as of the
effective date of this Warrant; and (d) the issuance of this Warrant by the
Company shall constitute full authority to its officers who are charged with the
duty of executing stock certificates to execute and issue the necessary
certificates for shares of Common Stock upon exercise of this Warrant.
6.2 The Company hereby covenants that (a) the Company will not, by
amendment of its Certificate of Incorporation or through reorganization,
consolidation, merger, dissolution or sale of assets, or by any other voluntary
act, avoid or seek to avoid the observance or performance of any of the
covenants, stipulations or conditions to be observed or performed by the Company
hereunder; and (b) all Shares will upon issuance be listed on the Nasdaq
National Market System or the principal such other securities exchange or
quotation system on which the Common Stock is then listed or quoted.
7. Representations and Warranties by the Holder. The Holder represents and
warrants to the Company as follows:
7.1 This Warrant and the Shares issuable upon exercise thereof are being
acquired for its own account, for investment purposes and not with a view to, or
for resale in connection with, any distribution or public offering thereof
within the meaning of the Securities Act of 1933, as amended (the "SECURITIES
ACT"), other than in compliance with all applicable securities laws, including
the Securities Act. Upon exercise of this Warrant, the Holder shall, if so
requested by the Company, confirm in writing, in a form satisfactory to the
Company, that the securities issuable upon exercise of this Warrant are being
acquired for investment purposes and not with a view toward distribution or
resale, other than in compliance with all applicable securities laws, including
the Securities Act.
7.2 The Holder understands that the Warrant and the Shares have not been
registered under the Securities Act by reason of their issuance in a transaction
exempt from the registration and prospectus delivery requirements of the
Securities Act pursuant to Section 4(2) thereof, that they must be held by the
Holder indefinitely, and that the Holder must therefore bear the economic risk
of such investment indefinitely, unless a subsequent disposition thereof is
registered under the Securities Act or is exempted from such registration.
7.3 The Holder has such knowledge and experience in financial and business
matters that it is capable of evaluating the merits and risks of the purchase of
this Warrant and the Shares purchasable pursuant to the terms of this Warrant
and of protecting its interests in connection therewith.
7.4 The Holder is able to bear the economic risk of the purchase of the
Shares pursuant to the terms of this Warrant.
8. Restrictive Legend; Compliance with Securities Laws.
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8.1 Restrictive Legend. The Shares issuable upon exercise of this Warrant
(unless registered under the Securities Act) shall be stamped or imprinted with
a legend in substantially the following form:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED
SOLELY FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR ANY STATE
SECURITIES LAWS. SUCH SECURITIES MAY NOT BE SOLD, OFFERED FOR
SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF SUCH REGISTRATION
OR IN AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY AND ITS
COUNSEL THAT SUCH SALE, OFFER OR PLEDGE IS EXEMPT FROM THE
REGISTRATION AND PROSPECTUS DELIVERY REQUIREMENTS OF THE ACT AND
OF ANY APPLICABLE STATE SECURITIES LAWS, UNLESS SOLD PURSUANT TO
RULE 144 UNDER THE ACT.
8.2 Compliance with Securities Laws.
(a) The Company need not register a transfer of this Warrant, in whole
or in part, or the Shares bearing the restrictive legend set forth in Section
8.1 hereof unless the Company shall have been provided with an opinion of
counsel in form and substance reasonably satisfactory to the Company that this
Warrant or the Shares, as applicable, are eligible for transfer without
registration under the Securities Act. Until such time as the conditions imposed
by this Section 8.2 shall terminate as set forth in subsection (b) below, the
Company may also instruct its transfer agent not to register the transfer of
this Warrant or the Shares unless the conditions set forth in this Section
8.2(a) are satisfied.
(b) The conditions imposed by this Section 8.2 upon the
transferability of this Warrant and the Shares shall cease and terminate as to
this Warrant and any of the Shares (i) when such securities shall have been
registered under the Securities Act and sold or otherwise disposed of in
accordance with the intended method of disposition by the seller or sellers
thereof set forth in the registration statement covering such securities, (ii)
at such time as the Company shall have been provided with an opinion of counsel
in form and substance reasonably satisfactory to the Company to the effect that
the restrictive legend on such securities is no longer required in order to
establish compliance with the provisions of the Securities Act, or (iii) when
such securities are transferred pursuant to Rule 144 or become transferable in
accordance with the provisions of Rule 144(k) promulgated under the Securities
Act. Whenever the conditions imposed by this Section 8.2 shall terminate as
hereinabove provided with respect to any of the Shares, the holder of any such
securities bearing the legend set forth in Section 8.1 shall be entitled to
receive, upon its written request to the Company, without expense (except for
the payment of any applicable transfer taxes), new stock certificates not
bearing such legend.
9. Transferability. Subject to the restrictions on transfer set forth in
Section 8.2, title to this Warrant may be transferred, in whole or in part, by
execution and delivery of a completed and duly executed Notice of Transfer
(attached hereto as Attachment 3) and surrender of this Warrant
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to the Company or the Company's transfer agent. Upon compliance by the Holder
with such requirements, the Company at its expense (other than with respect to
any applicable transfer taxes) shall issue, on the order of the Holder, a new
Warrant or Warrants of like tenor, in such name as the Holder may direct, for
the number of shares issuable upon exercise hereof. In addition, subject to the
restrictions on transfer set forth in Section 8.2, title to the Shares
purchasable upon exercise of this Warrant may be transferred by delivery of the
certificate or certificates representing such Shares, duly endorsed for
transfer, to the Company or the Company's transfer agent.
10. Rights of Stockholders.
10.1 No Holder shall be entitled, as a Warrant holder, to vote or receive
dividends or be deemed the holder of Common Stock or any other securities of the
Company that may at any time be issuable on the exercise hereof for any purpose,
nor shall anything contained herein be construed to confer upon the Holder, as
such, any of the rights of a stockholder of the Company or any right to vote for
the election of directors or upon any matter submitted to stockholders at any
meeting thereof, or to give or withhold consent to any corporate action (whether
upon any recapitalization, issuance of stock, reclassification of stock, change
of par value, consolidation, merger, conveyance, or otherwise) or to receive
notice of meetings, or to receive dividends or subscription rights or otherwise
until the Warrant shall have been exercised as provided herein.
10.2 In case (a) the Company shall declare a dividend or other distribution
on its Common Stock (other than a dividend payable exclusively in cash that
would not cause an adjustment to the Exercise Price to take place pursuant to
Section 3 above); (b) the Company shall authorize the granting to all holders of
its Common Stock generally of rights, options or warrants to subscribe for or
purchase any shares of capital stock of any class; (c) of any reclassification
of the Common Stock (other than a subdivision or combination of its outstanding
shares of Common Stock); or (d) of the voluntary or involuntary dissolution,
liquidation or winding up of the Company; then the Company shall cause to be
mailed to the Holder at its last address as shall appear on the books and
records of the Company, at least five days prior to the record or effective date
hereinafter specified, a notice stating (i) the date on which a record has been
taken for the purpose of such dividend, distribution or grant of rights, options
or warrants, or, if record is not to be taken, the date as of which the identity
of the holders of Common Stock of record entitled to such dividend,
distribution, rights, options or warrants is to be determined, or (ii) the date
on which such reclassification, dissolution, liquidation or winding up is
expected to become effective and the date as of which it is expected that
holders of Common Stock of record shall be entitled to exchange their shares of
Common Stock for securities, cash or other property deliverable upon such
reclassification, dissolution, liquidation or winding up. Neither the failure to
give such notice nor any defect therein shall affect the legality or validity of
the proceedings described in clauses (a) through (d) of this Section 10.2.
11. Expiration of Warrant. This Warrant shall expire and shall no longer be
exercisable (to the extent, if at all, it has been come exercisable prior to
such expiration) upon the earlier to occur of
11.1 5:00 p.m., California local time, on December 31, 2005; or
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11.2 subject to the requirements of Section 3.1, the closing of (a) a
merger or consolidation of the Company into a third party pursuant to which the
Company's stockholders immediately prior to such merger or consolidation own
less than fifty percent (50%) of the outstanding voting securities of the
surviving entity, or (b) a sale of all or substantially all of the assets of the
Company.
12. Replacement of Warrant. On receipt of evidence reasonably satisfactory to
the Company of the loss, theft, destruction or mutilation of this Warrant and,
in the case of loss, theft or destruction, on delivery of an indemnity agreement
reasonably satisfactory in form and substance to the Company or, in the case of
mutilation, on surrender and cancellation of this Warrant, the Company at its
expense shall execute and deliver, in lieu of this Warrant, a new Warrant of
like tenor and amount.
13. Termination of Letter Agreement. The parties hereto agree that all rights
and obligations set forth in that certain letter agreement dated as of November
21, 2000 by and between Comcast Cable Communications, Inc. and the Company (the
"LETTER AGREEMENT") are hereby terminated and of no further force and effect;
provided that the obligations of the Company described in the fifth paragraph of
the Letter Agreement shall survive the termination of the Letter Agreement.
14. Notices. All notices and other communications from the Company to the
Holder shall be mailed by first class, express delivery, registered, or
certified mail, postage prepaid, at such address as may have been furnished to
the Company in writing by the Holder.
15. Governing Law. 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.
16. Headings. The headings in this Warrant are for purposes of reference only,
and shall not limit or otherwise affect any of the terms hereof.
17. Amendments. Neither this Warrant nor any term hereof may be amended,
waived, discharged or terminated other than by a written instrument signed by
the party against whom enforcement of any such amendment, waiver, discharge or
termination is sought.
IN WITNESS WHEREOF, WINK COMMUNICATIONS, INC. has caused this Warrant to be
executed by its authorized officer.
Dated: November 21, 2000
WINK COMMUNICATIONS, INC.
By: /s/ Xxxxxxxx X. Xxxxx
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Xxxxxxxx X. Xxxxx
Chief Financial Officer
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ATTACHMENT 1
NOTICE OF EXERCISE
TO: WINK COMMUNICATIONS, INC.
0000 Xxxxxx Xxxxxxx Xxxxxxx
Xxxxxxx, XX 00000
Attention: Chief Financial Officer
1. The undersigned hereby elects to purchase _______ shares of Common Stock of
WINK COMMUNICATIONS, INC. pursuant to the terms of the attached Warrant.
2. Method of Exercise (Please mark the applicable blank):
-- The undersigned elects to exercise the attached Warrant by means
of a cash payment, and tenders herewith payment in full for the
purchase price of the shares being purchased, together with all
applicable transfer taxes, if any.
-- The undersigned elects to exercise the attached Warrant by means
of the net exercise provisions of Section 1.2(b) of the Warrant.
-- The undersigned elects to exercise the attached Warrant by means
of both a cash payment and the net exercise provisions of Section
1.2(b) of the Warrant, and tenders herewith payment in full for
that portion of the purchase price being paid in cash, together
with all applicable transfer taxes, if any.
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 other than in compliance with all applicable securities
laws, and 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.
________________________________
(Signature)
____________________________ Title: _________________________
(Date)
ATTACHMENT 2
INVESTMENT REPRESENTATION STATEMENT
PURCHASER : [ ]
COMPANY : WINK COMMUNICATIONS, INC.
SECURITY : COMMON STOCK ISSUED UPON EXERCISE OF THE STOCK PURCHASE WARRANT
ISSUED ON NOVEMBER 21, 2000
AMOUNT : ___________ SHARES
DATE : __________________
In connection with the purchase of the above-listed Securities, the Purchaser
represents to the Issuer 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") other than in compliance with all applicable securities laws.
(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.
(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 the 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 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 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 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 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.
PURCHASER
By: __________________________
Title: _______________________
Date: ________________________
-2-
ATTACHMENT 3
NOTICE OF TRANSFER
(To be signed only upon transfer of Warrant)
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
___________________________________________ the right represented by the
attached Warrant to purchase ___________ shares of Common Stock of WINK
COMMUNICATIONS INC., to which the attached Warrant relates, and appoints
__________________ Attorney to transfer such right on the books of WINK
COMMUNICATIONS, INC., with full power of substitution in the premises.
Dated: _____________________
___________________________________
By:
___________________________________
(Signature must conform in all
respects to name of Holder as
specified on the face of the
Warrant)
___________________________________
(Address)
Signed in the presence of:
_______________________________
* Insert here the number of shares without making any adjustment for
additional shares of Common Stock or any other stock or other securities or
property or cash which, pursuant to the adjustment provisions of the Warrant,
may be deliverable upon exercise.
