EXHIBIT 10.48
COMMON STOCK PURCHASE WARRANT
THIS WARRANT AND THE SHARES OF COMMON STOCK WHICH MAY BE PURCHASED UPON THE
EXERCISE OF THIS WARRANT HAVE BEEN ACQUIRED SOLELY FOR INVESTMENT AND HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR ANY
STATE SECURITIES LAWS. SUCH SECURITIES MAY NOT BE SOLD, OFFERED FOR SALE,
PLEDGED OR HYPOTHECATED IN THE ABSENCE OF SUCH REGISTRATION OR AN OPINION OF
COUNSEL SATISFACTORY TO THE COMPANY AND ITS COUNSEL THAT SUCH SALE, OFFER OR
PLEDGE IS EXEMPT FROM THE REGISTRATION AND PROSPECTUS DELIVERY REQUIREMENTS OF
THE ACT AND OF ANY APPLICABLE STATE SECURITIES LAWS UNLESS SOLD PURSUANT TO RULE
144 OF THE ACT.
VOID AFTER MAY 26, 2005
WINK COMMUNICATIONS, INC.
WARRANT TO PURCHASE 1,300,000 SHARES OF COMMON STOCK
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THIS CERTIFIES THAT, for value received, Echostar Communications
Corporation ("ECC") or an affiliate of Echostar Communications Corporation
designated by Echostar Communications Corporation (the "HOLDER") is entitled to
subscribe for and purchase 1,300,000 shares (as adjusted pursuant to Section 3
hereof) of fully paid and nonassessable Common Stock (the "SHARES") of Wink
Communications, Inc., a Delaware corporation (the "COMPANY"), at $21.75 per
share, which is the lower of (a) the closing price of the Common Stock on the
Nasdaq Stock Market on May 26, 2000, and (b) the average of the closing price of
the Common Stock on the Nasdaq Stock Market on the thirty trading days ending
with May 26, 2000 (the "EXERCISE PRICE") (as adjusted pursuant to Section 3
hereof), subject to the provisions and upon the terms and conditions hereinafter
set forth.
1. Exercise; Payment
(a) Time of Exercise. This Warrant may be exercised, in whole or in part,
at any time or from time to time, on any Business Day, before 5:00 p.m., Pacific
Time, on May 26, 2005, for the full or any partial number of Shares for which
this Warrant is then exercisable. For purposes of this Warrant, "Business Day"
means any day the New York Stock Exchange is open for business
(b) Method of Exercise.
(i) Cash Exercise. The purchase rights represented by this Warrant
may be exercised by the Holder, in whole or in-part, by the surrender of this
Warrant (with the notice of exercise form attached hereto as Exhibit A duly
executed) at the principal office of the Company, and by the payment to the
Company, by wire transfer or by certified, cashier's or other check
acceptable to the Company, of an amount equal to the aggregate Exercise Price of
the Shares being purchased.
(ii) Net Issue Exercise. In lieu of exercising this Warrant, the
Holder may elect to receive Shares equal to the value of this Warrant (or the
portion thereof being exercised) by surrender of this Warrant at the principal
office of the Company together with notice of such election, in which event the
Company shall issue to the Holder a number of shares of the Company's Common
Stock computed using the following formula:
X = Y (A-B)
-------
A
Where X = the number of Shares to be issued to the Holder.
Y = the number of Shares purchasable under this Warrant
(or the portion thereof being exercised).
A = the Fair Market Value of one share of the Company's Common Stock.
B = the Exercise Price (as adjusted to the date of such calculation).
(iii) Fair Market Value. For purposes of this Warrant, the
"Fair Market Value" of the Company's Common Stock shall mean:
The average of the closing ask prices of the Company's
Common Stock quoted in the NASDAQ Over-the-Counter Market Summary or the closing
prices quoted on any exchange on which the Common Stock is listed, whichever is
applicable, as published in the Western Edition of The Wall Street Journal for
the ten trading days (or such lesser number of days as the Company's stock has
been so traded) prior to the date of determination of fair market value.
B. If the Company's Common Stock is not traded
Over-the-Counter or on an exchange, the per share fair market value of the
Common Stock shall be the fair market value per share as determined in good
faith by the Company's Board of Directors.
(c) Stock Certificates. In the event of any exercise of the rights
represented by this Warrant, certificates for the shares of Common Stock so
purchased shall be delivered to the Holder within a reasonable time and, unless
this Warrant has been fully exercised or has expired, a new Warrant representing
the shares with respect to which this Warrant has not have been exercised shall
be issued to the Holder.
2. Stock Fully Paid: Reservation of Shares. All of the Shares issuable
upon the exercise of this Warrant will, upon issuance and receipt of the
Exercise Price therefor, be fully paid and nonassessable, and free from all
taxes, liens and charges with respect to the issuance thereof. During the period
within which this Warrant may be exercised, the Company shall at all times have
authorized and reserved for issuance sufficient shares of its Common Stock to
provide for the full exercise of this Warrant.
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3. Adjustment of Exercise Price and Number of Shares. Notwithstanding
anything to the contrary in this Warrant the Exercise Price per share of this
Warrant shall be subject to adjustment from time to time as follows:
(i) Stock Splits and Stock Dividends. If the number of shares of
Common Stock outstanding at any time after the date of original issuance of this
Warrant is increased by a stock dividend payable in shares of Common Stock or by
a subdivision or split-up of shares of Common Stock, then, on the date such
payment is made or such change is effective, the Exercise Price shall be
proportionately decreased and the number of shares of Common Stock issuable on
exercise of this Warrant shall be increased in proportion to such increase of
outstanding shares. Such adjustment shall become effective at the close of
business on the date the dividend, subdivision or split-up becomes effective.
(ii) Reverse Stock Splits. If the number of shares of Common Stock
outstanding at any time after the date of original issuance of this Warrant is
decreased by a combination of the outstanding shares of Common Stock, then, on
the effective date of such combination, the Exercise Price shall be
proportionately increased and the number of shares of Common Stock issuable on
exercise of this Warrant shall be decreased in proportion to such decrease in
outstanding shares. Such adjustment shall become effective at the close of
business on the date the combination becomes effective.
(iii) Reorganization: Reclassification. In the case, at any time after
the date of original issuance of this Warrant, of any capital reorganization, or
any reclassification of the stock of the Company (other than as a result of a
stock dividend or subdivision, split-up or combination of shares), the
consolidation or merger of the Company with or into another person (other than a
consolidation or merger in which the Company is the continuing entity and which
does not result in any change in the Common Stock), or a sale or transfer of all
or substantially all of the Company's assets, this Warrant shall, after such
reorganization, reclassification, consolidation, merger or sale, be exercisable
for the kind and aggregate number of shares of stock or other securities or
property of the Company or other entity to which the Holder would have been
entitled if, immediately prior to such reorganization, reclassification,
consolidation, merger or sale, such Holder had exercised this Warrant in full
(subject to all adjustments under this Section 3). The provisions of this clause
(iii) shall similarly apply to successive reorganizations, reclassifications,
consolidations, mergers or sales.
4. Notice of Adjustments. Whenever the number of Shares purchasable
hereunder or the Exercise Price thereof shall be adjusted pursuant to Section 3
hereof, the Company shall provide notice by first class mail to the Holder of
this Warrant setting forth, in reasonable detail, the event requiring the
adjustment, the amount of the adjustment, the method by which such adjustment
was calculated, and the number of Shares which may be purchased and the Exercise
Price therefor after giving effect to such ad adjustment.
5. Prior Notice of Actions. If at any time:
(a) The Company shall pay any dividend payable in stock upon its Common
Stock or make any distribution (other than cash dividends) to the holders of its
Common Stock;
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(b) The Company shall offer for subscription pro-rata to the holders of
its Common Stock any additional shares of stock of any class or any other
rights;
(c) The Company shall effect any capital reorganization or any
reclassification of or change in the outstanding capital stock of the Company
(other than a change in par value, or a change for par value to no par value, or
a change from no par value to par value, or a change resulting solely from a
subdivision or combination of outstanding shares), or any consolidation or
merger, or any sale, transfer or other disposition of all or substantially all
of its property, assets, business and goodwill as an entirety, or the
liquidation, dissolution or winding up of the Company; or
(d) The Company shall declare a dividend upon its Common Stock payable
otherwise than out of earnings or earned surplus or otherwise than in shares or
any stock or obligations directly or indirectly convertible into or exchangeable
for shares;
then, in any such event, the Company shall cause at least thirty (30)
days prior written notice to be mailed to the Holder at the address of such
holder as provided to the Company pursuant to Section 14, below. The notice
shall specify the date on which the books of the Company shall close or a record
be taken for such stock dividend, distribution or subscription rights, or the
date on which such reclassification, reorganization, consolidation, merger,
sale, transfer, disposition, liquidation, dissolution, winding up, or dividend,
as the case may be, shall take place, and the date of participation therein by
the holders of shares of Common Stock if any such date is to be fixed, and shall
also set forth such facts with respect thereto as shall be reasonably necessary
to indicate the effort of such action on the rights of the Holder.
6. Fractional Shares. No fractional shares of Common Stock will be
issued in connection with any exercise hereunder. In lieu of such fractional
shares the Company shall make a cash payment therefor based upon the Exercise
Price then in effect.
7. Representations of the Company. The Company represents that all
corporate actions on the part of the Company, its officers, directors and
shareholders necessary for the sale and issuance of the Shares pursuant hereto
and the performance of the Company's obligations hereunder have been taken prior
to and are effective as of the effective date of this Warrant.
8. Representations and Warranties by the Holder. The Holder represents
and warrants to the Company as follows:
(a) This Warrant and the Shares issuable upon exercise thereof are
being acquired for its own account, for investment and not with a view to, or
for resale in connection with, any distribution or public offering thereof
within the meaning of the Act. Upon exercise of this Warrant, the Holder shall,
if appropriate under applicable securities laws, confirm in writing, in a form
satisfactory to the Company, that the securities issuable upon exercise of this
Warrant are being acquired for investment and not with a view toward
distribution or resale.
(b) The Holder understands that the Warrant and the Shares have not
been registered under the Act by reason of their issuance in a transaction
exempt from the registration and
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prospectus delivery requirements of the Act pursuant to Section 4(2) thereof,
that they must be held by the Holder indefinitely, and that the Holder must
therefore bear the economic risk of such investment indefinitely, unless a
subsequent disposition is registered under the Act or is exempt from such
registration. The Holder further understands that the Shares have not been
qualified under the California Securities Law of 1968 (the "CALIFORNIA LAW") by
reason of their issuance in a transaction exempt from the qualification
requirements of the California Law pursuant to Section 25102(f) thereof, which
exemption depends upon, among other things, the bona fide nature of the Holder's
investment intent expressed above.
(c) The Holder has such knowledge and experience in financial and
business matters that it is capable of evaluating the merits and risks of
acquiring this Warrant and the Shares issuable upon exercise hereof and of
protecting its interests in connection herewith.
(d) The Holder is able to bear the economic risk of the purchase of the
Shares pursuant to the terms of this Warrant.
9. Restrictive Legend.
The Shares issuable upon exercise of this Warrant (unless registered
under the Act) shall be stamped or imprinted with a legend in substantially the
following form:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR
INVESTMENT AND NOT WITH A VIEW TO, OR IN CONNECTION WITH, THE SALE OR
DISTRIBUTION THEREOF, AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED. SUCH SHARES MAY NOT BE SOLD OR TRANSFERRED IN
THE ABSENCE OF SUCH REGISTRATION OR UNLESS THE COMPANY RECEIVES AN
OPINION OF COUNSEL REASONABLY ACCEPTABLE TO IT STATING THAT SUCH SALE
OR TRANSFER IS EXEMPT FROM THE REGISTRATION AND PROSPECTUS DELIVERY
REQUIREMENTS OF THE ACT. COPIES OF THE INSTRUMENT COVERING THE PURCHASE
OF THESE SHARES AND RESTRICTING THEIR TRANSFER MAY BE OBTAINED AT NO
COST BY WRITTEN REQUEST MADE BY THE HOLDER OF RECORD OF THIS
CERTIFICATE TO THE SECRETARY OF THE CORPORATION AT THE PRINCIPAL
EXECUTIVE OFFICES OF THE CORPORATION.
10. Restrictions Upon Transfer and Removal of Legend.
Subject to the provisions of the Rights Agreement referenced in Section 11,
below:
(a) The Company need not register a transfer of Shares bearing the
restrictive legend set forth in Section 8 hereof, unless the conditions
specified in such legend are satisfied. The Company may also instruct its
transfer agent not to register the transfer of the Shares, unless one of the
conditions specified in the legend referred to in Section 8 hereof is satisfied.
(b) Notwithstanding the provisions of paragraph (a) above, no opinion
of counsel or "no-action" letter shall be necessary for a transfer without
consideration by any holder (i) to an
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affiliate of the holder, (ii) if such holder is a partnership, to a partner or
retired partner of such partnership who retires after the date hereof or to the
estate of any such partner or retired partner, (iii) if such holder is a closely
held corporation, to a shareholder of such corporation, or to any other
corporation under common control, direct or indirect, with such holder, or (iv)
by gift, will or intestate succession of any individual holder or individual
partner of a holder, in whole or in part, to his spouse or siblings, or to the
lineal descendants or ancestors of such holder or his spouse; provided, however,
that in each such case the transferee agrees in writing to be subject to the
terms hereof to the same extent as if such transferee were the original holder
hereunder.
(c) In order to effect any transfer of all or a portion of this Warrant
or the Shares, the transferor shall deliver a completed and duly executed Notice
of Transfer (attached hereto as Exhibit C).
11. Associated Rights. The Company agrees that the initial Holder or any
transferee of the Warrant pursuant to Section 10 (b) above, shall be entitled to
such registration rights as the Company has granted to investors in the Company
generally, and to certain additional rights as are set forth in the Fourth
Amended and Restated Investor Rights Agreement dated as of June 30, 1999, as
further modified by the Consent and Amendment of Investor Rights Agreement dated
on or about the date hereof (collectively, the "Rights Agreement") The Company
agrees to take promptly all appropriate steps to obtain all necessary waivers
and consents from existing investors and amend such agreements to provide the
initial Holder and its permitted assignees with such rights.
12. Rights of Shareholders. Notwithstanding Section 10 hereof, the holder
of this Warrant shall not be entitled, as a Warrant holder, to vote or receive
dividends or be deemed the holder of Common Stock or any other securities of the
Company which may at any time be issuable on the exercise hereof for any
purpose, nor shall anything contained herein be construed to confer upon the
holder of this Warrant, as such, any of the rights of a shareholder of the
Company or any right to vote for the election of directors or upon any matter
submitted to shareholders at any meeting thereof, or to give or withhold consent
to any corporate action (whether upon any recapitalization, issuance of stock,
reclassification of stock, change of par value, consolidation, merger,
conveyance, or otherwise) or to receive notice of meetings, or to receive
dividends or subscription rights or otherwise until the Warrant shall have been
exercised and the Shares purchasable upon the exercise hereof shall have become
deliverable, as provided herein.
13. Expiration of Warrant. This Warrant shall expire and shall no longer be
exercisable upon the earlier to occur of
(a) 5:00 p.m., Pacific Time, on May 26, 2005.
(b) The closing of a merger or consolidation of the Company into a
third party pursuant to which the Company's shareholders immediately prior to
such merger or consolidation own less than fifty percent (50%) of the
outstanding voting securities of the surviving entity; or
(c) The closing of a sale of all or substantially all of the assets of
the Company.
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Holder or any transferee of the Warrant pursuant to Section 10 (b) above
shall be given notice in the event of (b) and (c) above, per Section 5 above.
14. Notices, Etc. All notices and other communications from the Company to
the Holder shall be mailed by first class registered or certified mail, postage
prepaid or sent by nationally recognized express courier, at such address as may
have been furnished to the Company in writing by the Holder.
15. 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 May, 2000.
WINK COMMUNICATIONS, INC.
By: /s/ Xxxxxx Xxxxxxxxxxx
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Xxxxxx Xxxxxxxxxxx
Chief Executive Officer and President
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EXHIBIT A
NOTICE OF EXERCISE
TO: WINK COMMUNICATIONS, INC.
0000 Xxxxxx Xxxxxxx Xxxxxxx
Xxxxxxx, XX 00000
Attention: President
1. The undersigned hereby elects to exercise the attached Warrant as
to ________ shares of Common Stock of WINK COMMUNICATIONS, INC. pursuant to the
terms of such Warrant.
2. Method of Exercise (Please 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 I (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. The undersigned further represents and
warrants that all representations and warranties of the undersigned set forth in
Section 7 of the 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 Exhibit
B.
--------------------------------
(Signature)
Title:
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(Date)
EXHIBIT B
INVESTMENT REPRESENTATION STATEMENT
PURCHASER:
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SELLER: WINK COMMUNICATIONS, INC.
COMPANY: WINK COMMUNICATIONS, INC.
SECURITY: COMMON STOCK ISSUED UPON EXERCISE OF THE STOCK
PURCHASE WARRANT ISSUED ON
-----------, ------
AMOUNT: SHARES
---------
DATE:
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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.
The Securities may be resold in certain limited circumstances subject
to the provisions of Rule 144, which requires among other things: (1) the resale
occurring not less than one year after the party has purchased, and made full
payment for, within the meaning of Rule 144, the securities to be sold; and, in
the case of an affiliate, or of a non-affiliate who has held the securities not
less than two years, (2) the availability of certain public information about
the Company, (3) the sale being made through a broker in an unsolicited
"broker's transaction" or in transactions directly with a market maker (as said
term is defined under the Securities Exchange Act of 1934), and (4) the amount
of securities being sold during any three month period not exceeding the
specified limitations stated therein.
(e) Purchaser 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
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By:
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Title:
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Date:
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EXHIBIT C
NOTICE OF TRANSFER
(To be signed only upon transfer of Warrant)
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto ____________________________ the right represented by the
attached Warrant to purchase ________________* shares of Common Stock of WINK
COMMUNICATIONS, INC., to which the attached Warrant relates, and appoints
_________________ attorney to transfer such right on the books of WINK
COMMUNICATIONS, INC., with full power of substitution in the premises.
Dated:
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---------------------------------
By:
---------------------------------
(Signature must conform in all
respects to name of Xxxxxx 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.
