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EXHIBIT 10.28
February 23, 1999
The Xxxx Disney Company
000 Xxxxx Xxxxx Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx Xxxxx
Dear Xxxxx:
This letter summarizes the principal terms of the proposed investment by
The Xxxx Disney Company, directly or through a direct or indirect subsidiary
("Disney"), in Wink Communications, Inc. ("Wink" or the "Company"), a California
corporation. Upon the execution of a definitive licensing agreement pursuant to
which Wink will license to the ABC Television Network ("ABC") certain Wink
software for the purpose of creating and airing Wink enhanced broadcasting
applications (the "Master Agreement"), Wink will grant to Disney:
(a) Warrants to purchase 200,000 shares of Wink's common stock
(the "Warrants"). The Warrants will have an exercise price of $12 per
share and will be exercisable at any time between the first and fifth
anniversary of the date of issuance, subject to acceleration of vesting
upon the occurrence of certain events, including the filing of a
registration statement for an initial public offering of Wink common
stock or the execution of an agreement for the acquisition of Wink by a
third party. The Warrants will not be transferable prior to vesting, and
will contain standard provisions for warrants of this type, including
provisions permitting exercise on a "cashless" or "net exercise" basis
and providing for adjustments in the case of stock splits,
recapitalizations, other extraordinary corporate transactions and
below-market common stock issuances. Disney shall be entitled to
registration and information fights, fights of first refusal and co-
sale and the like, all on terms no less favorable to Disney than those
granted to any other holder of Wink warrants or similar equity
securities.
(b) A right to purchase, in connection with the Company's next
private equity financing, up to five percent (5%) of the outstanding
capital
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The Xxxx Disney Company
February 23, 1999
Page 2
stock of the Company at that time (the "Right"). Disney's purchase of
such shares shall be at the same price and on substantially the same
terms and conditions as are offered to other investors in the financing,
and Disney shall be entitled to all rights granted to such other
investors. The Right will lapse upon the earlier to occur of an initial
public offering by the Company or the termination of the Master
Agreement or a similar successor agreement. In addition, Disney's
exercise of the Right is conditioned upon ABC not being in default under
the Master Agreement at the time of exercise.
(c) A preemptive right to purchase additional equity in
connection with any subsequent private equity offering to the extent
necessary to maintain Disney's proportionate interest in the Company
after giving effect to the transactions contemplated by paragraphs (a)
and (b) above. The preemptive right would be exercisable on the same
terms and conditions offered to other purchasers.
The foregoing is subject to the obtaining by Wink of all necessary
consents and waivers by existing Wink shareholders and other holders of rights
with respect to Wink securities.
Yours very truly,
WINK COMMUNICATIONS, INC.
By:
Name:
Title: President & CEO
The foregoing is accepted and approved
as of the date first above written.
THE XXXX DISNEY COMPANY
By:
Name:
Title
