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EXHIBIT 4.2
WINK COMMUNICATIONS, INC.
FOURTH AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
THIS AGREEMENT is made as of the 30th day of June, 1999, among Wink
Communications, Inc., a California corporation (the "Company") and each of the
individuals and entities listed on Exhibit A hereto, as amended from time to
time to include additional Series D Investors (as hereinafter defined) (referred
to herein individually as "Investor" and collectively as "Investors").
RECITALS
WHEREAS, pursuant to the First Amended and Restated Registration Rights
Agreement dated as of December 21, 1995, the Second Amended and Restated
Investor Rights Agreement dated as of April 17, 1997 and the Third Amended and
Restated Registration Rights Agreement dated as of June 18, 1997, as amended,
(collectively, the "Prior Registration Rights Agreement") among the Company and
certain of the Investors indicated on Exhibit A attached hereto ("Prior
Investors"), the Company granted the Prior Investors certain rights regarding
registration of the Company's securities under the Securities Act of 1933, as
amended ("Registration Rights"); and
WHEREAS, pursuant to the Series A, Series B and Series C Preferred Stock
Purchase Agreements, as amended, (the "Prior Purchase Agreements"), among the
Company and the Prior Investors, the Company granted the Prior Investors certain
rights regarding financial information, records inspection and rights of first
refusal (collectively with the Registration Rights referred to herein as
"Rights"); and
WHEREAS, the Prior Registration Rights Agreement and the Prior Purchase
Agreements set forth all the Rights of the Prior Investors; and
WHEREAS, the purchasers of Series D Preferred Stock (the "Series D
Investors"), in connection with their purchase of shares of the Company's Series
D Preferred Stock pursuant to the Series D Preferred Stock Purchase Agreement
dated as of June 30, 1999, and as may subsequently be amended (the "Series D
Agreement"), desire to obtain such Rights granted pursuant to the Prior
Registration Rights Agreement and the Prior Purchase Agreements; and
WHEREAS, the Company and the Prior Investors, to induce the Series D
Investors to purchase the Series D Preferred Stock, desire to grant the Series D
Investors and other Investors the Rights granted pursuant to the Prior
Registration Rights Agreement and the Prior Purchase Agreements.
NOW, THEREFORE, in consideration of the above and of the mutual promises
set forth herein, the parties hereto agree that, subject to the closing of the
purchase of Series D Preferred
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Stock by the Series D Investors pursuant to the Series D Agreement: (i) all
Rights set forth in the Prior Registration Rights Agreement and the Prior
Purchase Agreements are terminated and of no further force and effect; (ii) the
Company hereby grants to the Prior Investors and the Series D Investors the
rights set forth below; and (iii) the Company and the Prior Investors, to induce
the Series D Investors to invest in the Company, hereby accept and agree to the
termination of all prior Rights and accept and agree to be bound by the terms of
this Agreement.
SECTION 1
DEFINITIONS
1.1 CERTAIN DEFINITIONS. Hereafter, in this Agreement the following
terms shall have the following respective meanings:
"Benchmark Warrants" shall mean the warrants to purchase an
aggregate of 500,000 shares of Common Stock at a price of $6.00 per share issued
to Benchmark Capital Partners, L.P. and Benchmark Founders Fund, L.P. on
July 31, 1996.
"CBS Warrant" shall mean the warrant to purchase up to 125,000
shares of Common Stock (subject to adjustments) at a price of $12.00 per share
(subject to adjustments) issued or to be issued to CBS Corporation.
"Commission" shall mean the Securities and Exchange Commission
or any other federal agency at the time administering the Securities Act.
"Conversion Stock" shall mean the Common Stock issued or
issuable upon conversion of the Preferred.
"Disney Warrant" shall mean the warrant to purchase up to
200,000 shares of Common Stock (subject to adjustments) at a price of $12.00 per
share (subject to adjustments) issued or to be issued to The Xxxx Disney
Company.
"EGI Warrants" shall mean (i) the warrant to purchase up to
75,000 shares of Common Stock at a price of $0.80 per share issued to WC
Investors, LLC (now doing business as "EGI-Wink Investors, LLC") and (ii) the
warrant to purchase up to 50,000 shares of Common Stock at a price of $0.80 per
share issued to EGI-Wink Investors, LLC.
"GECC Warrant" shall mean (i) the warrant or warrants to
purchase an aggregate of up to 900,000 shares of Common Stock (subject to
adjustments) at a price of $8.00 per share (subject to adjustments) issued or to
be issued to General Electric Capital Corporation or its affiliate, including
NBC, Inc. ("NBC") and (ii) the warrant or warrants to purchase an aggregate of
up to 25,000 shares of Common Stock (subject to adjustments) at a price of $9.00
per share (subject to adjustments) issued or to be issued to General Electric
Capital Corporation.
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"Holder" shall mean any Purchaser holding Registrable
Securities, or securities convertible or exercisable for Registrable Securities,
other than the Lender Warrant and Registrable Securities issuable upon exercise
thereof, and any person holding Registrable Securities, or securities
convertible or exercisable for Registrable Securities, other than the Lender
Warrant and Registrable Securities issuable upon exercise thereof, to whom the
rights under this Agreement have been transferred in accordance with Section
2.14 hereof, plus, for purposes of Section 2 (other than Sections 2.4, 2.6 and
2.7) and Section 5, the holder of the Lender Warrant or the Registrable
Securities issued upon exercise thereof.
"Initiating Holders" shall mean any Purchasers or transferees of
Purchasers under Section 2.14 hereof who in the aggregate are Holders of greater
than 25% of the Registrable Securities other than the Registrable Securities
issued upon exercise of the Lender Warrant.
"Lender Warrant" shall mean the warrant to purchase 17,500
shares of Series B Preferred Stock at a price of $4.00 per share issued to
Venture Lending and Leasing, Inc. on September 18, 1996.
"Microsoft Warrant" shall mean the warrant to purchase up to
500,000 shares of Common Stock (subject to adjustments) at a price of $12.00 per
share (subject to adjustments) issued or to be issued to Microsoft Corporation.
"Preferred" shall mean the Series A Preferred Stock, Series B
Preferred Stock, Series C Preferred Stock and Series D Preferred Stock of the
Company.
"Purchaser" shall mean each Prior Investor and each Series D
Investor.
"Purchasers" shall mean all Prior Investors and all Series D
Investors, referred to collectively.
"Registrable Securities" means (i) the Conversion Stock, (ii)
any Common Stock of the Company issued or issuable in respect of the Conversion
Stock or other securities issued or issuable pursuant to the conversion of the
Preferred upon any stock split, stock dividend, recapitalization, or similar
event (a "Recapitalization"), or any Common Stock otherwise issued or issuable
with respect to the Preferred, (iii) with respect to Section 2 herein (other
than Sections 2.4, 2.6 and 2.7), the shares of Common Stock of the Company
issued or issuable upon conversion of the Preferred Stock issued or issuable
upon exercise of the Lender Warrant, and (iv) the Common Stock of the Company
issued or issuable upon exercise of the Benchmark Warrants, the EGI Warrants,
the CBS Warrants, the Disney Warrant, the GECC Warrant, the Microsoft Warrant,
the Thomson Warrant and the Vulcan Warrant; provided, however, that shares of
Common Stock or other securities shall be treated as Registrable Securities only
if and so long as they have not been (A) sold to or through a broker or dealer
or underwriter in a public distribution or a public securities transaction,
whether in a registered offering, Rule 144 transaction or otherwise, or (B) sold
or are available for sale, in the written opinion of counsel to the Company, in
a transaction exempt from the registration and prospectus delivery requirements
of the Securities Act, such that all transfer
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restrictions and restrictive legends with respect thereto are removed upon the
consummation of such sale.
The terms "register," "registered" and "registration" refer to a
registration effected by preparing and filing a registration statement in
compliance with the Securities Act, and the declaration or ordering of the
effectiveness of such registration statement.
"Registration Expenses" shall mean all expenses, except as
otherwise stated below, incurred by the Company in complying with Sections 2.4,
2.5 and 2.6 hereof, including, without limitation, all registration,
qualification and filing fees, printing expenses, escrow fees, fees and
disbursements of counsel for the Company, blue sky fees and expenses, the
expense of any special audits incident to or required by any such registration
(but excluding the compensation of regular employees of the Company which shall
be paid in any event by the Company) and the reasonable fees and disbursements
of one counsel for all Holders in the event of three exercises of a requested
registration provided for in Section 2.4 hereof, in the event of all Company
registrations pursuant to Section 2.5 hereof, and for all Company registrations
on Form S-3 pursuant to Section 2.6 hereof.
"Restricted Securities" shall mean the securities of the Company
required to bear the legend set forth in Section 2.2 hereof.
"Securities Act" shall mean the Securities Act of 1933, as
amended, or any similar federal statute and the rules and regulations of the
Commission thereunder, all as the same shall be in effect at the time.
"Selling Expenses" shall mean all underwriting discounts,
selling commissions and stock transfer taxes applicable to the securities
registered by the Holders and, except as set forth above, all reasonable fees
and disbursements of counsel for any Holder.
"Thomson Warrant" shall mean the warrant or warrants to purchase
an aggregate of up to 50,000 shares of Common Stock (subject to adjustments) at
a price of $12.00 per share (subject to adjustments) issued or to be issued to
Thomson Consumer Electronics, Inc.; provided, however, that all rights granted
hereunder with respect to the Thomson Warrants, and the securities issuable upon
exercise thereof, shall be effective only after and to the extent that such
warrants are actually issued.
"Vulcan Warrant" shall mean the warrant or warrants to purchase
an aggregate of up to 250,000 shares of Common Stock (subject to adjustments) at
a price of either $12.00 and $16.00 per share (subject to adjustments) issued or
to be issued to Vulcan Ventures Incorporated; provided, however, that all rights
granted hereunder with respect to the Vulcan Warrants, and the securities
issuable upon exercise thereof, shall be effective only after and to the extent
that such warrants are actually issued.
SECTION 2
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RESTRICTIONS ON TRANSFERABILITY OF SECURITIES;
COMPLIANCE WITH SECURITIES ACT; REGISTRATION RIGHTS
2.1 RESTRICTIONS ON TRANSFERABILITY. The Preferred and the
Conversion Stock shall not be sold, assigned, transferred or pledged except upon
the conditions specified in this Section 2, which conditions are intended to
ensure compliance with the provisions of the Securities Act. Each Purchaser will
cause any proposed purchaser, assignee, transferee, or pledgee of the Preferred
or Conversion Stock held by a Purchaser to agree to take and hold such
securities subject to the provisions and upon the conditions specified in this
Section 2.
2.2 RESTRICTIVE LEGEND. Each certificate representing (i) the
Preferred, (ii) the Conversion Stock and (iii) any other securities issued in
respect of the Preferred or the Conversion Stock upon any Recapitalization,
merger, consolidation or similar event shall (unless otherwise permitted by the
provisions of Section 2.3 below) be stamped or otherwise imprinted with a legend
in the following form (in addition to any legend required under applicable state
securities laws):
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR
INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933. 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 SAID ACT.
COPIES OF THE AGREEMENT 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
COMPANY AT THE PRINCIPAL EXECUTIVE OFFICES OF THE COMPANY.
Each Purchaser and Holder consents to the Company making a notation on its
records and giving instructions to any transfer agent of the Preferred or the
Common Stock in order to implement the restrictions on transfer established in
this Section 2.
2.3 NOTICE OF PROPOSED TRANSFERS. The holder of each certificate
representing Restricted Securities by acceptance thereof agrees to comply in all
respects with the provisions of this Section 2.3. Prior to any proposed sale,
assignment, transfer or pledge of any Restricted Securities (other than (i) a
transfer not involving a change in beneficial ownership, (ii) in transactions
involving the distribution without consideration of Restricted Securities by any
of the Purchasers to any of its partners or members, or retired partners or
members, or to the estate of any of its partners or members or retired partners
or members, (iii) transfers to a Holder's family members or to trusts for the
benefit of a Holder or a Holder's family members, or (iv) in the case of General
Electric Capital Corporation ("GECC") or NBC, transfers to one or more
affiliates, within the meaning of Rule 501(b) under the Securities Act, of GECC
or NBC otherwise in compliance with this Agreement), unless there is in effect a
registration statement under the Securities Act covering the proposed transfer,
the Holder thereof shall give written notice to the Company of such Holder's
intention to
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effect such transfer, sale, assignment or pledge. Each such notice shall
describe the manner and circumstances of the proposed transfer, sale, assignment
or pledge in sufficient detail, and shall be accompanied, at such Holder's
expense by either (i) an unqualified written opinion of legal counsel, who shall
be and whose legal opinion shall be reasonably satisfactory to the Company,
addressed to the Company, to the effect that the proposed transfer of the
Restricted Securities may be effected without registration under the Securities
Act, or (ii) a "no action" letter from the Commission to the effect that the
transfer of such securities without registration will not result in a
recommendation by the staff of the Commission that action be taken with respect
thereto, whereupon the Holder of such Restricted Securities shall be entitled to
transfer such Restricted Securities in accordance with the terms of the notice
delivered by the Holder to the Company. Each certificate evidencing the
Restricted Securities transferred as above provided shall bear, except if such
transfer is made pursuant to Rule 144, the appropriate restrictive legend set
forth in Section 2.2 above, except that such certificate shall not bear such
restrictive legend if in the opinion of counsel for such Holder and the Company
such legend is not required in order to establish compliance with any provision
of the Securities Act.
2.4 REQUESTED REGISTRATION.
(a) Request for Registration. In case the Company shall
receive from Initiating Holders a written request that the Company effect any
registration, qualification or compliance with respect to not less than
1,000,000 shares (appropriately adjusted for Recapitalizations) of Registrable
Securities, or any lesser number of shares if the anticipated aggregate offering
price, net of underwriting discounts and commissions, would exceed $20,000,000,
the Company will:
(i) promptly give written notice of the proposed
registration, qualification or compliance to all other Holders; and
(ii) as soon as practicable, use its best efforts to
effect such registration, qualification or compliance (including, without
limitation, appropriate qualification under applicable blue sky or other state
securities laws and appropriate compliance with applicable regulations issued
under the Securities Act and any other governmental requirements or regulations)
as may be so requested and as would permit or facilitate the sale and
distribution of all or such portion of such Registrable Securities as are
specified in such request, together with all or such portion of the Registrable
Securities of any Holder or Holders joining in such request as are specified in
a written request received by the Company within twenty (20) days after mailing
of such written notice by the Company;
provided, however, that the Company shall not be obligated to take any action to
effect any such registration, qualification or compliance pursuant to this
Section 2.4:
(A) In any particular jurisdiction in which
the Company would be required to execute a general consent to service of process
in effecting such registration, qualification or compliance unless the Company
is already subject to service in such jurisdiction and except as may be required
by the Securities Act;
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(B) Prior to December 31, 20___;
(C) During the period starting with the date
sixty (60) days prior to the Company's estimated date of filing of, and ending
on the date six (6) months immediately following the effective date of, any
registration statement pertaining to securities of the Company (other than a
registration of securities in a Rule 145 transaction or with respect to an
employee benefit plan), provided that the Company is actively employing in good
faith all reasonable efforts to cause such registration statement to become
effective;
(D) After the Company has effected three
such registrations pursuant to this Section 2.4(a), and such registrations have
been declared or ordered effective; or
(E) If the Company shall furnish to such
Holders a certificate signed by the President of the Company stating that in the
good faith judgment of the Board of Directors it would be seriously detrimental
to the Company or its shareholders for a registration statement to be filed in
the near future, in which case the Company's obligation to use its best efforts
to register, qualify or comply under this Section 2.4 shall be deferred for a
period not to exceed one hundred twenty (120) days from the date of receipt of
written request from the Initiating Holders; provided that the Company may not
exercise this right more than once in any twelve-month period.
Subject to the foregoing clauses (A) through (E), the Company shall file a
registration statement covering the Registrable Securities so requested to be
registered as soon as practicable, after receipt of the request or requests of
the Initiating Holders.
(b) Underwriting. In the event that a registration pursuant
to Section 2.4 is for a registered public offering involving an underwriting,
the Company shall so advise the Holders as part of the notice given pursuant to
Section 2.4(a)(i). In such event, the right of any Holder to registration
pursuant to Section 2.4 shall be conditioned upon such Holder's participation in
the underwriting arrangements required by this Section 2.4, and the inclusion of
such Holder's Registrable Securities in the underwriting to the extent requested
shall be limited to the extent provided herein. The Company shall (together with
all Holders proposing to distribute their securities through such underwriting)
enter into an underwriting agreement in customary form with the managing
underwriter selected for such underwriting by a majority in interest of the
Initiating Holders, but subject to the Company's reasonable approval.
Notwithstanding any other provision of this Section 2.4, if the managing
underwriter advises the Initiating Holders in writing that marketing factors
require a limitation of the number of shares to be underwritten, then the
Company shall so advise all Holders, and the number of shares of Registrable
Securities that may be included in the registration and underwriting shall be
allocated among all Holders thereof in proportion, as nearly as practicable, to
the respective amounts of Registrable Securities held by such Holders at the
time of filing the registration statement; provided, however, that the number of
shares of Registrable Securities to be included in such underwriting and
registration shall not be reduced unless all other securities of the Company are
first entirely excluded from the underwriting and registration; provided
further, however, that if the number of shares of Registrable Securities to be
included in such underwriting or registration is reduced to less than 75% of the
aggregate number of shares of
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Registrable Securities originally requested for registration pursuant to Section
2.4(a), then such registration or underwriting shall not be counted as one of
the three permitted requests for registration under Section 2.4(a)(D). No
Registrable Securities excluded from the underwriting by reason of the
underwriter's marketing limitation shall be included in such registration. To
facilitate the allocation of shares in accordance with the above provisions, the
Company or the underwriters may round the number of shares allocated to any
Holder to the nearest one hundred (100) shares. If any Holder of Registrable
Securities disapproves of the terms of the underwriting, such person may elect
to withdraw therefrom by written notice to the Company, the managing underwriter
and the Initiating Holders. The Registrable Securities and/or other securities
so withdrawn shall also be withdrawn from registration and such Registrable
Securities shall not be transferred in a public distribution prior to one
hundred eighty (180) days after the effective date of such registration, or such
other shorter period of time as the underwriters may require.
2.5 COMPANY REGISTRATION.
(a) Notice of Registration. If at any time or from time to
time the Company shall determine to register any of its securities, either for
its own account or the account of a security holder or holders, other than (i) a
registration relating solely to employee benefit plans or (ii) a registration
relating solely to a Commission Rule 145 transaction, the Company will:
(i) promptly give to each Holder written notice
thereof; and
(ii) include in such registration (and any related
qualification under blue sky laws or other compliance), and in any underwriting
involved therein, all the Registrable Securities specified in a written request
or requests, made within twenty (20) days after mailing of such written notice
by the Company, by any Holder.
(b) Underwriting. If the registration of which the Company
gives notice is for a registered public offering involving an underwriting, the
Company shall so advise the Holders as a part of the written notice given
pursuant to Section 2.5(a)(i). In such event, the right of any Holder to
registration pursuant to Section 2.5 shall be conditioned upon such Holder's
participation in such underwriting and the inclusion of Registrable Securities
in the underwriting to the extent provided herein. All Holders proposing to
distribute their securities through such underwriting shall (together with the
Company and the other holders distributing their securities through such
underwriting) enter into an underwriting agreement in customary form with the
managing underwriter selected for such underwriting by the Company.
Notwithstanding any other provision of this Section 2.5, if the managing
underwriter determines that marketing factors require a limitation of the number
of shares to be underwritten, the managing underwriter may limit the Registrable
Securities to be included in such registration (or exclude them entirely). The
Company shall so advise all Holders and other holders distributing their
securities through such underwriting, and the number of shares of Registrable
Securities that may be included in the registration and underwriting (after
inclusion of all shares to be included by the Company) shall be allocated among
all Holders requesting inclusion of Registrable Securities in such registration
in proportion, as nearly as practicable, to the respective amounts of
Registrable Securities held by such Holders at the time of filing the
registration
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statement; provided, however, that the right of the underwriters to exclude
Registrable Securities from the registration and underwriting as described above
shall be restricted such that (i) the number of Registrable Securities included
in any such registration may not be reduced below twenty-five percent (25%) of
the shares included in the registration, except for a registration relating to
the Company's initial public offering from which all Registrable Securities may
be excluded; and (ii) all shares that are not Registrable Securities and all
shares that are held by persons who are employees or directors of the Company
(or any subsidiary of the Company) shall first be excluded from such
registration and underwriting before any Registrable Securities are so excluded.
To facilitate the allocation of shares in accordance with the above provisions,
the Company may round the number of shares allocated to any Holder or holder to
the nearest one hundred (100) shares. If any Holder or holder disapproves of the
terms of any such underwriting, he may elect to withdraw therefrom by written
notice to the Company and the managing underwriter. Any securities excluded or
withdrawn from such underwriting shall be withdrawn from such registration, and
shall not be transferred in a public distribution prior to one hundred eighty
(180) days after the effective date of the registration statement relating
thereto, or such other shorter period of time as the underwriters may require.
(c) Right to Terminate Registration. The Company shall have
the right to terminate or withdraw any registration initiated by it under this
Section 2.5 prior to the effectiveness of such registration whether or not any
Holder has elected to include securities in such registration.
2.6 REGISTRATION ON FORM S-3.
(a) If any Holder or Holders request that the Company file a
registration statement on Form S-3 (or any successor form to Form S-3) for a
public offering of shares of the Registrable Securities the reasonably
anticipated aggregate offering price to the public of which, net of underwriting
discounts and commissions, would exceed $1,000,000, and the Company is a
registrant entitled to use Form S-3 to register the Registrable Securities for
such an offering, the Company shall use its best efforts to cause such
Registrable Securities to be registered for the offering on such form and to
cause such Registrable Securities to be qualified in such jurisdictions as the
Holder or Holders may reasonably request; provided, however, that the Company
shall not be required to effect more than one registration pursuant to this
Section 2.6 in any six (6) month period or in excess of three registrations
under this Section 2.6. The substantive provisions of Section 2.4(b) shall be
applicable to each registration initiated under this Section 2.6.
(b) Notwithstanding the foregoing, the Company shall not be
obligated to take any action pursuant to this Section 2.6: (i) in any particular
jurisdiction in which the Company would be required to execute a general consent
to service of process in effecting such registration, qualification or
compliance unless the Company is already subject to service in such jurisdiction
and except as may be required by the Securities Act; (ii) if the Company, within
ten (10) days of the receipt of the request of the initiating Holders, gives
notice of its bona fide intention to effect the filing of a registration
statement with the Commission within ninety (90) days of receipt of such request
(other than with respect to a registration statement relating to a Rule 145
transaction, an offering solely to employees or any other registration which is
not appropriate for the registration of Registrable Securities); (iii) during
the period starting with the date sixty (60) days prior to the
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Company's estimated date of filing of, and ending on the date six (6) months
immediately following, the effective date of any registration statement
pertaining to securities of the Company (other than a registration of securities
in a Rule 145 transaction or with respect to an employee benefit plan), provided
that the Company is actively employing in good faith all reasonable efforts to
cause such registration statement to become effective; or (iv) if the Company
shall furnish to such Holder a certificate signed by the President of the
Company stating that in the good faith judgment of the Board of Directors it
would be seriously detrimental to the Company or its shareholders for
registration statements to be filed in the near future, in which case the
Company's obligation to use its best efforts to file a registration statement
shall be deferred for a period not to exceed one hundred twenty (120) days from
the receipt of the request to file such registration by such Holder.
2.7 LIMITATIONS ON SUBSEQUENT REGISTRATION RIGHTS. From and after
the date of this Agreement, the Company shall not enter into any agreement
granting any holder or prospective holder of any securities of the Company
registration rights with respect to such securities unless such new registration
rights, including standoff obligations, are subordinate to the rights of the
Holders hereunder and would not reduce the amount of Registrable Securities of
the Holders which may be included in a registration.
2.8 EXPENSES OF REGISTRATION. All Registration Expenses incurred in
connection with (i) three registrations pursuant to Section 2.4, (ii) all
registrations pursuant to Section 2.5, and (iii) all registrations pursuant to
Section 2.6 shall be borne by the Company. Unless otherwise stated, all Selling
Expenses relating to securities registered on behalf of the Holders and all
other Registration Expenses shall be borne by the Holders of such securities pro
rata on the basis of the number of shares so registered.
2.9 REGISTRATION PROCEDURES. In the case of each registration,
qualification or compliance effected by the Company pursuant to this Section 2,
the Company will keep each Holder advised in writing as to the initiation of
each registration, qualification and compliance and as to the completion
thereof. At its expense the Company will:
(a) Prepare and file with the Commission a registration
statement with respect to such securities and use its best efforts to cause such
registration statement to become and remain effective for at least one hundred
eighty (180) days or until the distribution described in the Registration
Statement has been completed;
(b) Furnish to the Holders participating in such
registration and to the underwriters of the securities being registered such
reasonable number of copies of the registration statement, preliminary
prospectus, final prospectus and such other documents as such underwriters may
reasonably request in order to facilitate the public offering of such
securities;
(c) Use its best efforts to register and qualify the
securities covered by such registration statement under such other securities or
Blue Sky laws of such jurisdictions as shall be reasonably requested by the
Holders, provided that the Company shall not be required in connection therewith
or as a condition thereto to qualify to do business or to file a general consent
to service of process in any such states or jurisdictions;
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(d) In the event of any underwritten public offering, enter
into and perform its obligations under an underwriting agreement, in usual and
customary form, with the managing underwriters of such offering;
(e) Notify each Holder of Registrable Securities covered by
such registration statement, at any time when a prospectus relating thereto is
required to be delivered under the Securities Act, of the happening of any event
as a result of which the prospectus included in such registration statement, as
then in effect, includes an untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances then
existing.
2.10 INDEMNIFICATION.
(a) The Company will indemnify each Holder, each of its
officers, directors, partners, members, accountants, legal counsel and agents,
and each person controlling such Holder within the meaning of Section 15 of the
Securities Act, with respect to which registration, qualification or compliance
has been effected pursuant to this Section 2, and each underwriter, if any, and
each person who controls any underwriter within the meaning of Section 15 of the
Securities Act, against all expenses, claims, losses, damages or liabilities (or
actions in respect thereof), including any of the foregoing incurred in
settlement of any litigation, commenced or threatened, arising out of or based
on any untrue statement (or alleged untrue statement) of a material fact
contained in any final registration statement, prospectus, offering circular or
other document, or any amendment or supplement thereto, incident to any such
registration, qualification or compliance, or based on any omission (or alleged
omission) to state therein a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances in which
they were made, not misleading, or any violation by the Company of the
Securities Act or any rule or regulation promulgated under the Securities Act
applicable to the Company in connection with any such registration,
qualification or compliance, and the Company will reimburse each such Holder,
each of its officers and directors, and each person controlling such Holder,
each such underwriter and each person who controls any such underwriter, for any
legal and any other expenses reasonably incurred in connection with
investigating, preparing or defending any such claim, loss, damage, liability or
action, provided that the Company will not be liable in any such case to the
extent that any such claim, loss, damage, liability or expense arises out of or
is based on any untrue statement or omission or alleged untrue statement or
omission, made in reliance upon and in conformity with written information
furnished to the Company by an instrument duly executed by such Holder,
controlling person or underwriter and stated to be specifically for use therein.
(b) Each Holder will, if Registrable Securities held by such
Holder are included in the securities as to which such registration,
qualification or compliance is being effected, indemnify the Company, each of
its directors, officers, accountants, legal counsel and agents, each
underwriter, if any, of the Company's securities covered by such a registration
statement, each person who controls the Company or such underwriter within the
meaning of Section 15 of the Securities Act, and each other such Holder, each of
its officers, directors, partners, members, accountants, legal counsel and
agents, and each person controlling such Holder within the meaning of Section 15
of the
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Securities Act, against all claims, losses, damages and liabilities (or actions
in respect thereof) arising out of or based on any untrue statement (or alleged
untrue statement) of a material fact contained in any final registration
statement, prospectus, offering circular or other document, or any omission (or
alleged omission) to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, and will reimburse
the Company, such Holders, such directors, officers, persons, underwriters or
control persons for any legal or any other expenses reasonably incurred in
connection with investigating or defending any such claim, loss, damage,
liability or action, in each case to the extent, but only to the extent, that
such untrue statement (or alleged untrue statement) or omission (or alleged
omission) is made in such registration statement, prospectus, offering circular
or other document in reliance upon and in conformity with written information
furnished to the Company by an instrument duly executed by such Holder and
stated to be specifically for use therein; provided, however that the total
amount payable in indemnity by a Holder under this Section 2.10(b) shall not
exceed the net proceeds received by such Holder in the registered offering out
of which the obligation to indemnify under this Section 2.10(b) arises.
(c) Each party entitled to indemnification under this
Section 2.10 (the "Indemnified Party") shall give notice to the party required
to provide indemnification (the "Indemnifying Party") promptly after such
Indemnified Party has actual knowledge of any claim as to which indemnity may be
sought, and shall permit the Indemnifying Party to assume the defense of any
such claim or any litigation resulting therefrom, provided that counsel for the
Indemnifying Party, who shall conduct the defense of such claim or litigation,
shall be approved by the Indemnified Party (whose approval shall not
unreasonably be withheld), and the Indemnified Party may participate in such
defense at such party's expense, and provided further that the failure of any
Indemnified Party to give notice as provided herein shall not relieve the
Indemnifying Party of its obligations under this Section 2 unless the failure to
give such notice is materially prejudicial to an Indemnifying Party's ability to
defend such action, in which case the Indemnifying Party shall be relieved of
its obligation under this Section 2.10 to the extent of such prejudice, and
provided further that the Indemnifying Party shall not assume the defense for
matters as to which there is a conflict of interest or separate and different
defenses. No Indemnifying Party, in the defense of any such claim or litigation,
shall, except with the consent of each Indemnified Party, consent to entry of
any judgment or enter into any settlement which does not include as an
unconditional term thereof the giving by the claimant or plaintiff to such
Indemnified Party of a release from all liability in respect to such claim or
litigation.
2.11 TERMINATION OF REGISTRATION RIGHTS. The rights granted pursuant
to this Agreement, to the extent not earlier terminated by the terms hereof,
shall terminate as to any Holder at such time as such Holder is able to sell
publicly without registration all Registrable Securities then held by such
Holder, if any, within a ninety (90) day period pursuant to Rule 144 under the
Securities Act or a similar exemption.
2.12 INFORMATION BY HOLDER. The Holder or Holders of Registrable
Securities included in any registration shall furnish to the Company such
information regarding such Holder or Holders, the Registrable Securities held by
them and the distribution proposed by such Holder or Holders as
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the Company may reasonably request in writing and as shall be reasonably
required in connection with any registration, qualification or compliance
referred to in this Section 2.
2.13 RULE 144 REPORTING. With a view to making available the benefits
of certain rules and regulations of the Commission that may at any time permit
the sale of the Restricted Securities to the public without registration, after
such time as a public market exists for the Common Stock of the Company, the
Company agrees to use its best efforts to:
(a) Make and keep public information available, as those
terms are understood and defined in Rule 144 under the Securities Act, at all
times after the effective date that the Company becomes subject to the reporting
requirements of the Securities Act or the Securities Exchange Act of 1934, as
amended (the "Exchange Act");
(b) File with the Commission in a timely manner all reports
and other documents required of the Company under the Securities Act and the
Exchange Act (at any time after it has become subject to such reporting
requirements); and
(c) So long as a Purchaser owns any Restricted Securities,
to furnish to the Purchaser forthwith upon request (i) a written statement by
the Company as to its compliance with the reporting requirements of said Rule
144 (at any time after ninety (90) days after the effective date of the first
registration statement filed by the Company for an offering of its securities to
the general public) and of the Securities Act and the Exchange Act (at any time
after it has become subject to such reporting requirements), (ii) a copy of the
most recent annual or quarterly report of the Company, and (iii) such other
reports and documents of the Company and other information in the possession of
or reasonably obtainable by the Company as a Purchaser may reasonably request in
availing itself of any rule or regulation of the Commission allowing a Purchaser
to sell any such securities without registration.
2.14 TRANSFER OF REGISTRATION RIGHTS. The rights to cause the Company
to register securities granted Purchasers under Sections 2.4, 2.5 and 2.6 may be
assigned in connection with any transfer or assignment of Registrable Securities
by a Purchaser provided that: (i) such transfer may otherwise be effected in
accordance with applicable securities laws, (ii) such transferee agrees to be
bound hereby and (iii) either (A) such assignee or transferee is reasonably
acceptable to Purchaser and acquires at least 250,000 shares of Preferred and/or
Common Stock issued upon conversion thereof (appropriately adjusted for
Recapitalizations) or options, warrants or convertible securities exercisable or
exchangeable therefor, (B) such transferee is a family member of the Purchaser
or a trust for the benefit of the Purchaser or a family member of the Purchaser,
(C) if Purchaser is a partnership or limited liability company, such transferee
is (w) a general partner or member or retired general partner or member of
Purchaser, (x) such general partner or member or retired general partner's or
member's spouse or siblings or the lineal descendants or ancestors of such
general partner or member or retired partner or member or his spouse, (y) one or
more trusts established for the benefit of any of the foregoing individuals, or
(z) without limitation of the foregoing, with respect to WC Investors, LLC, such
transferee is Xxx Xxxx, Xxxxx X. Xxxxxxxxx, Xxx X. Xxxxxxxx, F. Xxxxxx Xxxxx,
Xxxxxx X. Xxxxxxx and Xxxxxx X. Xxxxxxxx or the spouse or siblings or lineal
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descendants or ancestors of any of the foregoing individuals or one or more
trusts established for the benefit of any of the foregoing individuals (all of
the individuals and trusts referred to in clauses (w), (x), (y) and (z) being
hereinafter referred to as "Partnership/LLC Transferees"), or (D) such
transferee is a corporation, partnership, or limited liability entity and in
such case, an affiliate (within the meaning of Rule 501(b) under the Securities
Act) of GECC or NBC.
2.15 STANDOFF AGREEMENT. Each Holder agrees in connection with the
Company's initial public offering of the Company's securities that, upon request
of the Company or the underwriters managing any underwritten offering of the
Company's securities, not to publicly sell, make any short sale of, loan, grant
any option for the purchase of, or otherwise dispose of any securities of the
Company in a public transaction (other than those included in the registration)
without the prior written consent of the Company or such underwriters, as the
case may be, for such period of time (not to exceed one hundred eighty (180)
days) from the effective date of such registration as may be requested by the
underwriters; provided, that the officers and directors of the Company who own
stock of the Company have also agreed to such restrictions.
SECTION 3
INFORMATION AND INSPECTION RIGHTS
3.1 FINANCIAL INFORMATION. The Company will mail the following
reports to each Purchaser for so long as such Purchaser is a holder of any
Shares of Preferred or Common Stock issued upon conversion of the Shares of
Preferred or of warrants or other convertible securities exercisable for or
convertible into shares of Preferred or Common Stock:
(i) As soon as practicable after the end of each fiscal
year, and in any event within ninety (90) days thereafter, consolidated balance
sheets of the Company and its subsidiaries, if any, as of the end of such fiscal
year, and consolidated statements of income and consolidated statements of cash
flows of the Company and its subsidiaries, if any, for such year, prepared in
accordance with generally accepted accounting principles and setting forth in
each case in comparative form the figures for the previous fiscal year and the
budgeted figures for the fiscal year then reported, all in reasonable detail and
audited by independent public accountants selected by the Company.
(ii) As soon as practicable, and in any case within
forty-five (45) days after the end of each fiscal quarter of the Company (except
the last quarter of the Company's fiscal year), quarterly unaudited financial
statements, including an unaudited balance sheet, an unaudited statement of
income and an unaudited statement of cash flows, together with a comparison to
the Company's budget and a statement of the Chief Financial Officer of the
Company that such statements fairly present the consolidated financial position
and consolidated financial results of the Company for the fiscal quarter
covered, subject to appropriate year end adjustments; and
(iii) As soon as practicable and in any event no later than
thirty (30) days after the close of each fiscal year of the Company, an annual
operating budget, prepared on a monthly basis,
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for the next immediate fiscal year. The Company shall also furnish, within a
reasonable time of its preparation, amendments to such annual budget, if any.
3.2 INSPECTION RIGHTS. The Company shall permit each Purchaser
holding at least 250,000 shares of Preferred (or shares of Common Stock issued
upon conversion of the Preferred or any combination thereof or warrants or
convertible securities exercisable for or convertible into at least 250,000
shares of Preferred and/or Common Stock), at such Purchaser's expense, to visit
and inspect the Company's properties, to examine its books of account and
records and to discuss the Company's affairs, finances and accounts with its
officers, all on reasonable notice and at such reasonable times as may be
requested by such Purchaser. Shares held by a Purchaser and its Partnership/LLC
Transferees shall be aggregated for purposes of meeting the 250,000 minimum
share requirement in this Section 3.2; provided, however, that in the case of
such aggregation, the investor and all Partnership/LLC Transferees shall
together designate one representative to exercise inspection rights pursuant to
this Section 3.2.
3.3 RULE 144A INFORMATION. The Company will provide each Purchaser,
upon request and at such Purchaser's expense, with such reasonable written
information as may be required in order to permit such Purchaser to resell any
shares of the Company's stock pursuant to Rule 144A promulgated under the
Securities Act.
3.4 ASSIGNMENT OF RIGHTS. The rights granted pursuant to this
Section 3 and Section 4 may not be assigned or otherwise conveyed by any
Purchaser or by any subsequent transferee of any such rights without the prior
written consent of the Company; provided, however, that any Purchaser may assign
to any transferee, except for a competitor of the Company (as the Company may
determine in its sole discretion), after giving notice to the Company, the
rights granted pursuant to this Section 3 and Section 4 provided that such
transferee agrees to be bound hereby and (i) acquires at least 250,000 shares of
Preferred and/or Common Stock issued upon conversion of the shares of Preferred
(appropriately adjusted for stock splits, stock dividends, recapitalizations and
the like) (or shares of Common Stock issued upon conversion of the Preferred or
any combination thereof or warrants or convertible securities exercisable for or
convertible into at least 250,000 shares of Preferred and/or Common Stock), (ii)
is Partnership/LLC Transferee of a Purchaser, (iii) is another Purchaser or (iv)
in the case of GECC or NBC, is an affiliate within the meaning of Rule 501(b) of
the Securities Act of the transferring Purchaser.
3.5 TERMINATION OF RIGHTS. The rights set forth in this Section 3
shall terminate and be of no further force or effect at the earlier of (i) the
closing of an underwritten public offering pursuant to an effective registration
statement under the Securities Act, covering the offer and sale of Common Stock
for the account of the Company to the public or (ii) such time as the Company is
required to file reports pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934, as amended.
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SECTION 4
RIGHT OF FIRST REFUSAL
4.1 GENERAL. Each Purchaser, and any party to whom such Purchaser's
rights under this Section 4 have been duly assigned in accordance with Section
3.4 (each such Purchaser or assignee being hereinafter referred to as a "Rights
Holder"), who meets the threshold requirements of Section 4.5(iii) hereof shall
have a right of first refusal to purchase such Rights Holder's Pro Rata Share
(as defined below) of all (or any part) of any "New Securities" (as defined in
Section 4.2) that the Company may from time to time issue after the date of this
Agreement. A Rights Holder's "Pro Rata Share" for purposes of this right of
first refusal is the ratio of (a) the number of shares of Common Stock then held
by such Rights Holder or issuable upon conversion of any Preferred Stock then
held by such Rights Holder or upon exercise of the Benchmark Warrants, the CBS
Warrant, the Disney Warrant, the GECC Warrant, the Microsoft Warrant, the
Thomson Warrant, the Vulcan Warrant or the EGI Warrants to the extent any such
warrant(s) is held by such Rights Holder to (b) the total number of shares of
Common Stock outstanding or issuable upon conversion of any Preferred Stock or
upon exercise of the Benchmark Warrants, the CBS Warrant, the Disney Warrant,
the GECC Warrant, the Microsoft Warrant, the Thomson Warrant, the Vulcan Warrant
and the EGI Warrants. Notwithstanding the foregoing, each Rights Holder's "Pro
Rata Share" shall be increased in proportion to the maximum amount by which any
single Rights Holder proposes to purchase more than its Pro Rata Share of the
New Securities, calculated without regard to this sentence; provided, however,
that if the total number of New Securities to be sold is insufficient to permit
satisfaction of the so increased Pro Rata Shares of all Rights Holders, then
each Rights Holder's Pro Rata Share shall be increased only to the extent that
there are sufficient New Securities, and no Rights Holder shall be permitted to
purchase more than its Pro Rata Share as so increased.
4.2 NEW SECURITIES. "New Securities" shall mean any Common Stock or
Preferred Stock of the Company, whether now authorized or not, and rights,
options or warrants to purchase such Common Stock or Preferred Stock, and
securities of any type whatsoever that are, or may become, convertible or
exchangeable into such Common Stock or Preferred Stock; provided, however, that
the term "New Securities" does not include:
(i) any shares of the Company's Common Stock or other
securities issued or issuable to employees, officers, directors, contractors,
advisors, consultants, lessors, vendors, lenders, customers or strategic
partners of the Company pursuant to agreements or plans approved by the Board of
Directors of the Company;
(ii) any securities issuable upon conversion of or with
respect to any then outstanding shares of Series A Preferred Stock, Series B
Preferred Stock, Series C Preferred Stock or Series D Preferred Stock of the
Company or Common Stock or other securities issuable upon conversion thereof;
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(iii) any options, warrants or rights to purchase any
securities of the Company outstanding on the date of this Agreement
(collectively, "Derivative Securities") and any securities issuable upon the
exercise or conversion of any Derivative Securities;
(iv) shares of the Company's Common Stock or Preferred Stock
issued in connection with any stock split, stock dividend or recapitalization in
which each Right Holder's Pro Rata Share is not reduced;
(v) securities offered by the Company to the public pursuant
to a registration statement filed under the Securities Act;
(vi) securities issued pursuant to the acquisition of another
corporation or entity by the Company by consolidation, merger, purchase of all
or substantially all of the assets, or other reorganization in which the Company
acquires, in a single transaction or series of related transactions, all or
substantially all of the assets of such other corporation or entity or fifty
percent (50%) or more of the voting power of such other corporation or entity or
fifty percent (50%) or more of the equity ownership of such other entity;
(vii) all shares of the Company's Series C Preferred Stock
sold pursuant to the Series C Agreement, as it may be amended from time to time
in accordance therewith and the Articles of Incorporation of the Company as in
effect on the date hereof; or
(viii) all shares of the Company's Series D Preferred Stock
sold pursuant to the Series D Agreement, as it may be amended from time to time
in accordance therewith, and the Articles of Incorporation of the Company, as
they may be amended from time to time.
4.3 PROCEDURES. In the event that the Company proposes to undertake
an issuance of New Securities, it shall give to each Rights Holder written
notice of its intention to issue New Securities (the "Notice"), describing the
type of New Securities and the price and the general terms upon which the
Company proposes to issue such New Securities. Each Rights Holder shall have ten
(10) days from the date of the sending of any such Notice to agree in writing to
purchase such Rights Holder's Pro Rata Share of such New Securities for the
price and upon the general terms specified in the Notice by giving written
notice of the Company and stating therein the quantity of New Securities to be
purchased (not to exceed such Rights Holder's Pro Rata Share). If any Rights
Holder fails to so agree in writing within such ten (10) day period to purchase
such Rights Holder's full Pro Rata Share of an offering of New Securities (a
"Nonpurchasing Holder"), then such Nonpurchasing Holder shall forfeit the right
hereunder to purchase that part of his Pro Rata Share of such New Securities
that he did not so agree to purchase.
4.4 FAILURE TO EXERCISE. In the event that the Rights Holders fail
to exercise in full the right of first refusal within such ten (10) day period,
then the Company shall have 120 days thereafter to sell the New Securities with
respect to which the Rights Holders' rights of first refusal hereunder were not
exercised, at a price and upon general terms not materially more favorable to
the purchasers thereof than specified in the Company's Notice to the Rights
Holders (provided that if the Company actually sells the New Securities at a
price or upon general terms more favorable to the
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purchasers thereof, the Company shall retroactively adjust the price and terms
of the New Securities sold to Rights Holders pursuant to the exercise of their
rights under this Section 4.4 to be such more favorable terms). In the event
that the Company has not issued and sold the New Securities within such 120 day
period, then the Company shall not thereafter issue or sell any New Securities
without again first offering such New Securities to the Rights Holders pursuant
to this Section 4.
4.5 TERMINATION OF RIGHTS. The rights set forth in this Section 4
shall terminate and be of no further force or effect at the earlier of (i) the
closing of an underwritten public offering pursuant to an effective registration
statement under the Securities Act, covering the offer and sale of Common Stock
for the account of the Company to the public; (ii) such time as the Company is
required to file reports pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934, as amended; or (iii) with respect to a particular Rights
Holder, at such time as such Rights Holder does not own at least 250,000 shares
of Preferred and/or Common Stock issued upon conversion of the shares of
Preferred and/or warrants or convertible securities exercisable for or
convertible into at least 250,000 shares of Preferred and/or Common Stock
(appropriately adjusted for stock split, stock dividend, stock splits, stock
dividends, recapitalizations and the like). For purposes of calculating the
250,000 minimum share requirement in this Section 4.5(iii), shares held by an
investor and its Partnership/LLC Transferee shall be aggregated.
SECTION 5
MISCELLANEOUS
5.1 GOVERNING LAW. This Agreement shall be governed and construed in
all respects in accordance with the laws of the State of California as applied
to agreements made and performed in California by residents of the State of
California.
5.2 ENTIRE AGREEMENT; AMENDMENT. This Agreement constitutes the full
and entire understanding and agreement between the parties with regard to the
subjects hereof and thereof, and no party shall be liable or bound to any other
party in any manner by any warranties, representations or covenants except as
specifically set forth herein and therein. Except as expressly provided herein,
neither this Agreement 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;
provided, however, that holders of a majority of the Registrable Securities may,
with the Company's prior written consent, waive, modify or amend on behalf of
all holders, any provisions hereof, except that any such waiver, modification or
amendment which affects a Purchaser in a manner or to an extent more adverse
than any other Purchaser shall require the prior written consent of such
Purchaser.
5.3 NOTICES, ETC. All notices and other communications required or
permitted hereunder shall be in writing and shall be mailed by registered or
certified mail, postage prepaid or otherwise delivered by hand or by messenger,
addressed (a) if to a Purchaser, at such Purchaser's address set forth in
Exhibit A, or at such other address as such Purchaser shall have furnished to
the Company in writing, (b) if to any other Holder, at such address as such
Holder shall have furnished the Company
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in writing, or until any such Holder so furnishes an address to the Company,
then to and at the address of the last Holder of such shares who has so
furnished an address to the Company, or (c) if to the Company, at the Company's
principal place of business, addressed to the attention of the Corporate
Secretary, or at such other address as the Company shall have furnished to the
Purchasers. Each such notice or other communication shall, unless otherwise
expressly provided herein, be treated as effective or having been given when
delivered if delivered personally, or, if sent by mail, at the earlier of its
receipt or seventy-two (72) hours after the same has been deposited in a
regularly maintained receptacle for the deposit of the United States mail,
addressed and mailed as aforesaid.
5.4 SEVERABILITY. In the event that any provision of this Agreement
becomes or is declared by a court of competent jurisdiction to be illegal,
unenforceable or void, this Agreement shall continue in full force and effect
without said provision; provided that no such severability shall be effective if
it materially changes the economic benefit of this Agreement to any party.
5.5 TITLES AND SUBTITLES. The titles and subtitles used in this
Agreement are used for convenience only and are not considered in construing or
interpreting this Agreement.
5.6 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which may be executed by less than all of the Purchasers,
each of which shall be enforceable against the parties actually executing such
counterparts, and all of which together shall constitute one instrument.
5.7 PRIOR REGISTRATION RIGHTS AGREEMENT. Upon both (i) the execution
of this Agreement by Investors holding (x) a majority of the Registrable
Securities outstanding or deemed to be outstanding immediately prior to the
Closing under the Series D Agreement, and (y) a majority of the Preferred Stock
and Conversion Stock outstanding or deemed to be outstanding immediately prior
to the Closing under the Series D Agreement, and (ii) the initial sale by the
Company of any shares of Series D Preferred Stock, this Agreement shall
supersede and replace the Prior Registration Rights Agreement, which shall be
terminated and cease to have any further force or effect. This Agreement amends
and restates in its entirety that certain Third Amended and Restated Investor
Rights Agreement dated as of June 18, 1997, as amended.
5.8 CONSENT AND WAIVER. By execution of this Agreement, each Prior
Investor hereby (a) consents to the issuance of the Series D Preferred Stock as
contemplated by the Series D Agreement and proposed form of Amended and Restated
Articles of Incorporation attached thereto, and (b) waives its rights of first
refusal (and any related notice rights) with respect to the Company's offer and
sale of Series D Preferred Stock under the Series D Agreement.
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IN WITNESS WHEREOF, the parties have executed this Investor Rights
Agreement as of the date first above written.
WINK COMMUNICATIONS, INC.
By:
----------------------------------
Its:
----------------------------------
INVESTOR
-------------------------------------
By:
----------------------------------
Its:
----------------------------------
FOURTH AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
21
THE XXXXXXX XXXXX GROUP, INC.
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
FOURTH AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
22
EXHIBIT A
SCHEDULE OF HOLDERS
Name and Address Registrable Securities
---------------- ----------------------
SERIES A INVESTOR
Toshiba Corporation 1,250,000 shares of Series A Preferred
Attn: Xxxxxxxx Xxxxxxxx
Deputy General Manager
Business Planning
Advanced-I Group
1-1, Shibaura 1-Chome,
Xxxxxx-xx, Xxxxx 000-00,
XXXXX
SERIES B INVESTOR
General Instrument Corporation 600,000 shares of Series B Preferred
0000 Xxxxxxx Xxxx
Xxxxxxx, XX 00000
Attn: Xxx Xxxxxxx, Vice President
Scientific-Atlanta, Inc. 600,000 shares of Series B Preferred
0 Xxxxxxxxxx Xxxxxxx
Xxxxxxx, XX 00000-0000
Attn: General Counsel
Nippon Telegraph and Telephone 600,000 shares of Series B Preferred
Corporation
00-0 Xxxxx-xxxxxxxx 0-xxxxx
Xxxxxxxx-xx, Xxxxx 000-00
XXXXX
Benchmark Capital Partners, L.P. 335,880 shares of Series B Preferred
0000 Xxxx Xxxx Xxxx, Xxxxx 000
Xxxxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxxxx
Benchmark Founders' Fund, L.P. 39,120 shares of Series B Preferred
0000 Xxxx Xxxx Xxxx, Xxxxx 000
23
Name and Address Registrable Securities
---------------- ----------------------
Xxxxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxxxx
Xxxxxx X. Xxxxxxx 2,500 shares of Series B Preferred
Geoworks
000 Xxxxxxxx Xxx.
Xxxxxxx, XX 00000
Xxxxxxx X. Xxxxxx 2,500 shares of Series B Preferred Stock
0000 Xxxx Xxxxxx, Xxx. 000
Xxx Xxxxxxxxx, XX 00000
Xxxxxxxxxxx X. Del Sesto 5,000 shares of Series B Preferred Stock
00 Xxxxxxx Xxx.
Xxxxxxxx, XX 00000-0000
Xxxxx X. Xxxxxxxxxx 2,500 shares of Series B Preferred Stock
Geoworks
000 Xxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Xxx X. Xxxxxx 2,500 shares of Series B Preferred Stock
000 Xxxx Xxxxxxxx, Xxx. # 00X
Xxxxxxx, XX 00000
Xxxx X. Xxxxxx 2,500 shares of Series B Preferred Stock
000 Xxxxx Xxxxx Xxx. #X
Xxxxxxx, XX 00000
Xxxx Xxxxx 2,500 shares of Series B Preferred Stock
000 Xxxxx Xxxxx Xxxxx
Xxxxxx, XX 00000
Xxxxxxxx X. Xxxxxx 2,500 shares of Series B Preferred Stock
Geoworks
000 Xxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Xxxxx Xxxxxxxx 2,500 shares of Series B Preferred Stock
0000 Xxxxxxxx Xxxxxxx
Xxx Xxxxx, XX 00000
Xxxxxx X. Xxxxxxx 2,500 shares of Series B Preferred Stock
Geoworks
000 Xxxxxxxx Xxxxxx
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Name and Address Registrable Securities
---------------- ----------------------
Xxxxxxx, XX 00000
Shininchi Makino 2,500 shares of Series B Preferred Stock
Toshiba Corporation
Advanced-I Group
1-1, Shibaura 1-Chome,
Xxxxxx-xx, Xxxxx 000-00,
XXXXX
Xxxxx Family Partners, a California 2,500 shares of Series B Preferred Stock
Limited Partnership
0000 Xxxxxx Xxxxxx Xxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxxx Xxxxx
Xxxxxx Xxxxxxxx 2,500 shares of Series B Preferred Stock
0000 Xxxxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
Xxxxx X. Xxxxxxxxxxx 2,500 shares of Series B Preferred Stock
Geoworks
000 Xxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Xxxxx Xxxxxxx 2,500 shares of Series B Preferred Stock
Toshiba Corporation
Advanced-I Group
1-1, Shibaura 1-Chome,
Xxxxxx-xx, Xxxxx 000-00,
XXXXX
Xxxxx X. Xxxxx 5,000 shares of Series B Preferred Stock
X.X. Xxx 000000
Xxxxxxxxx, XX 00000
Xxxxxx Xxxxxxxx 2,500 shares of Series B Preferred Stock
Geoworks
000 Xxxxxxxx Xxx.
Xxxxxxx, XX 00000
WS Investment Company 96A 8,750 shares of Series B Preferred Stock
Xxxxxx X. Xxxxxxxxxxxx
Xxxxxxx X. Xxxxxxx
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, XX 00000
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Name and Address Registrable Securities
---------------- ----------------------
Xxxxxxxx Xxxxxxxx 2,500 shares of Series B Preferred Stock
Toshiba Corporation
Advanced-I Group
1-1, Shibaura 1-Chome,
Xxxxxx-xx, Xxxxx 000-00,
XXXXX
General Instrument Corporation 550,000 shares of Common Stock in the event
000 Xxxx Xxxxxxx, 00xx Floor registration rights are granted with respect to
Xxxxxxx, XX 00000 any other shares of Common Stock
Attention: Xxxxxxx Xxxxx
Venture Lending & Leasing, Inc. Upon exercise of the Lender Warrant, 17,500
Western Technology Investment shares of Series B Preferred Stock*
0000 Xxxxx Xxxxx Xxxxxx, Xxxxx 000
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxx
Benchmark Capital Partners, L.P. Upon exercise of the Benchmark Warrants,
0000 Xxxx Xxxx Xxxx, Xxxxx 000 441,257 shares of Common Stock
Xxxxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxxxx
Benchmark Founders Fund, L.P. Upon exercise of the Benchmark Warrants, 58,743
0000 Xxxx Xxxx Xxxx, Xxxxx 000 shares of Common Stock
Xxxxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxxxx
--------------------------------------------------------------------------------
* Registrable Securities only for purposes of Section 2 (excluding
Sections 2.4, 2.6 and 2.7 thereof) of the Investor Rights Agreement.
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SERIES C INVESTORS
WC Investors, LLC 375,000 shares of Series C Preferred Stock
Xxx Xxxxx Xxxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxx
Benchmark Capital Partners, L.P. 82,254 shares of Series C Preferred Stock
Benchmark Founders' Fund, L.P. 11,496 shares of Series C Preferred Stock
0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxxxx
General Partner
Toshiba Corporation 250,000 shares of Series C Preferred Stock
1-1, Shibaura 1-Chome
Xxxxxx-xx, Xxxxx 000-0
XXXXX
Attention: Xxxxxxxx Xxxxxxxx
General Manager
Business Planning Advanced-I Group
Xxxxx Fargo Bank, Trustee of the 62,500 shares of Series C Preferred Stock
Vision Service Executive Deferred
Compensation Plan
Xxxxx Fargo Bank, N.A.
000 Xxxxxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxx Xxxxx MAC #0101-021
AJ Trusts Partnership 62,500 shares of Series C Preferred Stock
c/o Xxxxxx X. Xxxxxx
Xxxxx Vista Management Company
Xxxxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Pace Communications, Inc. 31,250 shares of Series C Preferred Stock
c/o Xxxxxx Xxxxxx
0000 Xxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
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Xxxxxx Xxxxxxxx XX Recipient 62,500 shares of Series C Preferred Stock
Pour-Off Trust X/X/X Xxxxx 0, 0000
Xxxxxxx Classics Wine Company
0000 Xxxxxx Xxxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
General Instrument Corporation 187,500 shares of Series C Preferred Stock
GI Analog Network Systems Business Unit
0000 Xxxxxxx Xxxx
Xxxxxxx, XX 00000
Attention: Xxx Xxxxxxx, Vice President
Scientific-Atlanta, Inc. 62,500 shares of Series C Preferred Stock
0 Xxxxxxxxxx Xxxxxxx
Xxxxxxx, XX 00000-0000
Attention: General Counsel
GFI Company 625,000 shares of Series C Preferred Stock
Oklahoma Publishing Company
0000 X. Xxxxxxxx, 00xx Xxxxx
Xxxxxxxx Xxxx, XX 00000
Attention: Xxxxx Xxxxx
Xxxxxxxxx Xxxxxxxx 12,500 shares of Series C Preferred Stock
0 Xxxxxxx Xxxxx
Xxxxx Xxxx, XX 00000
Xxxxxxx X. Xxxxxx, Xx. 31,250 shares of Series C Preferred Stock
0000 Xxxxx Xxxxx
Xxxxx Xxxx, XX 00000
Xxxxxxx X. Xxxxxx 12,500 shares of Series C Preferred Stock
0000 X Xxxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
Xxxxxx X. Dial and Xxxxx X. Xxxxx 18,750 shares of Series C Preferred Stock
Xxxxx Fargo Bank
000 Xxxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Xxxxxx X. Xxxxxx, DDS, Inc. Profit Sharing Plan 18,750 shares of Series C Preferred Stock
0000 Xxxx Xxxx Xxx, Xxxxx 0
Xxxxxxx, XX 00000
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Xxxxxx Family Limited Partnership 18,750 shares of Series C Preferred Stock
0000 Xxxx Xxxx Xxx, Xxxxx 0
Xxxxxxx, XX 00000
General Electric Capital Corporation 906,250 shares of Series C Preferred Stock
c/o Equity Capital Group
000 Xxxx Xxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Xxxxxxxx & Xxxxxxx Xxxxx 1,875 shares of Series C Preferred Stock
0000 Xx. Xxx Xxxxx
Xxxx, XX 00000
Xxxxxxx Xxxxxxx 1,875 shares of Series C Preferred Stock
RR4 Xxx 000; XxxxxxXxxxx
Xxxxxxx, XX 00000
Xxxxxx X. Xxxxxxxx, Xx. 5,000 shares of Series C Preferred Stock
Xxx Xxxxxx Public Relations
The Historic Cable House
0000 Xxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Xxxxx & Xxxxxxxx Xxxxxxx 1,875 shares of Series C Preferred Stock
0000 Xxxxxxxx Xxx
Xxxxxxxx Xxxx, Xxxxxxx 00000
Xxxxxx X. Xxxxxxxxxxx 1,875 shares of Series C Preferred Stock
000 Xxxx Xxxxxx
Xxxxxxxx, XX 00000
Xxxxxxx XxXxxxx 1,875 shares of Series C Preferred Stock
000 Xxxxxxxxxxx Xxxxx
Xxxxxxxxxxxxxxx, XX 00000
The Xxxxx Family Trust U/D/T Created 2,000 shares of Series C Preferred Stock
October 11, 1994, FBO The Xxxxx Family
0000 Xxxxx Xxxxx Xxxx
Xxxx, XX 00000
Xxxx-Xxxxx Xxxxx 2,000 shares of Series C Preferred Stock
0000 Xxxxxxxxx Xx. #000
Xxxxxxx, XX 00000
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Xxxx X. Xxxxx XX 1,000 shares of Series C Preferred Stock
0000 Xxxxxxxx
Xxxxxx, XX 00000
Xxxxx X. Xxxxxx Trustee, and 2,500 shares of Series C Preferred Stock
Xxxx Xxxxxx Trustee, the
Kassar Family Trust, UTD 5-4-88
0000 Xx Xxxxxx Xxxxx
Xx Xxxxx, XX 00000
Xxx Xxxxxx 1,875 shares of Series C Preferred Stock
00000 Xxxxxxxxx Xxxx
Xxx Xxxxxxx, XX 00000
Xxxxxx X. Xxxxxx, Xx. and Xxxxxxx X. Xxxxxx, 3,750 shares of Series C Preferred Stock
Trustees of the Xxxxxx Family Trust,
originally established July 24, 1984
0000 Xxxx Xxxxxx
Xxxxxx Xxxxx, XX 00000-0000
Xxxxxxxx Xxxxxxxx 1,875 shares of Series C Preferred Stock
0000 Xxxxxx Xxxxxx
Xx Xxxxxxx, XX 00000
Xxxxxxx X. Xxxxx, DDS and Xxxxxxxx X. Xxxxxxx, 1,875 shares of Series C Preferred Stock
Tenants in Common
0000 Xxxxx Xxxxxx
Xxxxxxxx, XX 00000
Xxxxx Xxxxxxxxxx 1,875 shares of Series C Preferred Stock
0-0-0 Xxx-xxxxx
Xxxxxxxx-xxx
Xxxxx 000-00 XXXXX
Xxxxxxxxx Xxxxx 13,500 shares of Series C Preferred Stock
0000 Xxxxxxx Xxxx
Xxx Xxxx, XX 00000
Xxx and Xxxxxx Xxxxxxxx 625 shares of Series C Preferred Stock
0000 Xxxxxxxx Xxxxx
Xxxxxxxxxxx, XX 00000
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EGI-Wink Investors, L.L.C. 250,000 shares of Series C Preferred Stock
Two Xxxxx Xxxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxx Xxxxx
EGI-Wink Investors, L.L.C. Upon exercise of EGI Warrants, 125,000 shares
Two North Riverside Plaza, Suite 1900 of Common Stock
Xxxxxxx, XX 00000
Attention: Xxxx Xxxxx
SZ Investments, L.L.C. 31,250 shares of Series C Preferred Stock
0 Xxxxx Xxxxxxxxx Xxxxx, 00xx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxx Xxxxx
Vulcan Ventures Incorporated 1,162,500 shares of Series C Preferred Stock
000 000xx Xxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Attention: Xxxx Xxxxx
General Electric Capital Corporation Upon exercise of GECC Warrant, 525,000 shares
c/o Equity Capital Group of Common Stock
000 Xxxx Xxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
NBC Multimedia, Inc. Upon exercise of GECC Warrant, 375,000 shares
00 Xxxxxxxxxxx Xxxxx of Common Stock
New York, New York 10112
CBS Corporation Upon exercise of the CBS Warrant, 125,000
00 Xxxx 00xx Xxxxxx shares of Common Stock
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxxxxxx
The Xxxx Disney Company Upon exercise of the Disney Warrant, 200,000
000 X. Xxxxx Xxxxx Xxxxxx shares of Common Stock
Xxxxxxx, XX 00000
Attention: Xxxxxxx Xxxx
Vulcan Ventures Incorporated Upon exercise of the Vulcan Warrant, 250,000
000 000xx Xxxxxx, Xxxxx 000 shares of Common Stock
Xxxxxxxx, XX 00000
Attention: Xxxx Xxxxx
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Thomson Consumer Electronics, Inc. Upon exercise of Thomson Warrant, 50,000 shares
of Common Stock
SERIES D INVESTORS
Microsoft Corporation 2,500,000 shares of Series D Preferred Stock
Microsoft Corporation Upon exercise of Microsoft Warrant, 500,000
shares of Common Stock
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