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EXHIBIT 10.55
NOTE: INFORMATION IN THIS DOCUMENT MARKED WITH AN "[*]" HAS BEEN OMITTED AND
FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED
WITH RESPECT TO THE OMITTED PORTIONS.
WINK COMMUNICATIONS, INC.
COMMON STOCK AND WARRANT ISSUANCE AGREEMENT
This Common Stock and Warrant Issuance Agreement is made and entered into
as of the [*], 2001 (the "Effective Date"), by and between Wink Communications,
Inc., a Delaware corporation (the "Company"), and [*], a Delaware corporation
("[*]").
WHEREAS, the Company and [*] are entering into an [*] concurrent with this
Agreement, which describes, among other things, the terms and conditions
pursuant to which the Company and [*] will cooperate to integrate the Wink
Service with current and future releases of [*]'s IPG and promote the deployment
and use of the Wink Service and [*]'s IPG during the term of the [*];
WHEREAS, the Company desires to provide [*] with Common Stock and Warrants
to purchase Common Stock of the Company in recognition of [*]'s activities in
bringing about such deployment and use.
NOW, THEREFORE, THE PARTIES HEREBY AGREE AS FOLLOWS:
1. DEFINITIONS.
1.1 "Commission" shall mean the United States Securities and Exchange
Commission.
1.2 "Commission Filings" shall mean all reports, registration
statements and other filings required to be filed by the Company with the
Commission (and all notes and schedules thereto and documents incorporated by
reference therein).
1.3 "Common Stock" shall mean the Common Stock of the Company, par
value $0.001 per share, or any class or series of stock issued by the Company in
substitution therefor.
1.4 "Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated thereunder.
1.5 "Household" shall mean the residence, including any unit of a
multiple dwelling unit, of one or more subscribers to residential cable service.
For purposes of this Agreement, a Household shall be counted only once
regardless of the number of subscribers or deployed Wink Engines in that
Household.
1.6 "[*]" shall mean the [*].
[*] Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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1.7 "Material Adverse effect" shall mean a material adverse effect on
the condition (financial or otherwise), business, assess or results of
operations of the Company and its Subsidiaries, taken as a whole.
1.8 "Revenue-Generating Release of the Integrated Wink/[*] Service"
shall mean any commercial release of the Wink Service within the Integrated
Wink/[*] Service in which Wink receives compensation as contemplated by the
[*] either in the form of consideration from a Network Operator or a fee in
connection with Wink Revenue Transactions.
1.9 "Rights Agreement" shall mean the Fourth Amended and Restated
Investors Rights Agreement dated as of June 30, 1999, as amended by a Consent
and Amendment of Investor Rights Agreement dated as of May 2000 and as further
amended by Consent and Amendment of Investor Rights Agreements of even date
herewith.
1.10 "Securities Act" shall mean the Securities Act of 1933, as
amended, and the rules and regulations of the Commission promulgated thereunder.
1.11 "Shares" shall mean the shares of Common Stock issuable upon
exercise of a Warrant.
1.12 "Warrant" shall mean a warrant to purchase a certain number of
shares of Common Stock, in the form attached as Exhibit A, which may be issued
pursuant to Section 3.1 hereof.
Notwithstanding the above definitions, all other capitalized terms in this
Agreement shall be interpreted consistently with the [*].
2. ISSUANCE OF COMMON STOCK. In consideration for the activities of [*]
and the other mutual agreements and promises contained herein and in the [*],
the Company agrees to issue to [*] or its designee fifty thousand (50,000)
shares of Common Stock concurrently with the execution of this Agreement and the
[*]. The Company shall issue an additional fifty thousand (50,000) shares of
Common Stock (subject to adjustment to reflect the effect of stock splits,
reverse splits, dividends and similar events affecting the Common Stock) to [*]
or its designee upon the first commercial launch and activation of the Wink
Service within the Integrated Wink/[*] Service, but prior to any public
announcement of such commercial launch and activation of the Wink Service.
3. ISSUANCE OF WARRANTS.
3.1 In consideration for the activities of [*] and the other mutual
agreements and promises contained herein and in the [*], the Company agrees to
issue to [*] the following warrants to purchase up to a maximum of one hundred
fifty thousand (150,000) shares of Common Stock upon and subject to the
following terms and conditions:
(a) The Company shall issue to [*] a Warrant to purchase 12,500
Shares if at least 250,000 Households are operating the Wink Service within the
Integrated Wink/[*]
[*] Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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Service on or before: (i) the six-month anniversary of the first
Revenue-Generating Release of the Integrated Wink/[*] Service and (ii) the
12-month anniversary of the Effective Date.
(b) The Company shall issue to [*] a Warrant to purchase 25,000
Shares if at least 750,000 Households are operating the Wink Service within the
Integrated Wink/[*] Service on or before the 12-month (one-year) anniversary of
the first Revenue-Generating Release of the Integrated Wink/[*] Service.
(c) The Company shall issue to [*] a Warrant to purchase 37,500
Shares if at least 1,500,000 Households are operating the Wink Service within
the Integrated Wink/[*] Service on or before the two-year anniversary of the
first Revenue-Generating Release of the Integrated Wink/[*] Service.
(d) The Company shall issue to [*] a Warrant to purchase 37,500
Shares if at least 2,250,000 Households are operating the Wink Service within
the Integrated Wink/[*] Service on or before the three-year anniversary of the
first Revenue-Generating Release of the Integrated Wink/[*] Service.
(e) The Company shall issue to [*] a Warrant to purchase 37,500
Shares if at least 3,000,000 Households are operating the Wink Service within
the Integrated Wink/[*] Service on or before the four-year anniversary of the
first Revenue-Generating Release of the Integrated Wink/[*] Service.
In each case as described in (a) through (e) above, the number of shares of
Common Stock underlying each Warrant shall be subject to adjustment to reflect
the effect of stock splits, reverse splits, stock dividends and similar events
affecting the Common Stock.
3.2 The per share exercise price for each Warrant described in
Section 3.1 shall be equal to 80% of the average per share final sale price of
the Common Stock as reported on The Nasdaq Stock Market (or if there is no sale
of Common Stock on such date, the average of the closing bid and ask prices of
the Common Stock) for the twenty trading days prior to the date on which such
Warrant is issued or required to be issued.
3.3 Each Warrant issued pursuant to Section 3.1 shall, except as
otherwise agreed by the parties, be in the form set forth on Exhibit A hereto,
and shall be subject to the terms and conditions set forth therein. Each Warrant
shall have a term of 10 years from the date of this Agreement.
4. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The Company represents and warrants to [*] as follows:
4.1 Organization and Standing. Each of the Company and its
Subsidiaries is duly organized, validly existing and in good standing under the
laws of its state of organization and has all corporate, limited liability
company and partnership power and authority to own its properties and assets and
to carry on its business as it is now being conducted. Each of the Company and
its Subsidiaries is duly qualified to transact business as a foreign entity and
is in good standing in each
[*] Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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jurisdiction in which the character of the properties owned or leased by it or
the nature of its business makes such qualification necessary, except for any
such failures to so qualify or be in good standing that would not, individually
or in the aggregate, reasonably be expected to have a Material Adverse Effect.
The Company has requisite corporate power and authority to own and operate its
properties and assets, and to carry on its business as currently conducted.
4.2 Capital Stock.
(a) As of December 31, 2000, the authorized capital stock of the
Company consists solely of 100 million shares of Common Stock and 5 Million
shares of preferred stock, of which approximately 31,120,153 shares of Common
Stock and 0 shares of preferred stock are issued and outstanding. Each share of
capital stock of the Company that is issued and outstanding, including without
limitation the shares of Common Stock issued pursuant to Section 2 and Shares
issued upon exercise of Warrants, will be duly authorized and validly issued and
fully paid and nonassessable, and the issuance thereof will not have been
subject to any preemptive rights.
(b) Except as set forth on Schedule 4.2, as of December 31, 2000,
there are (i) no outstanding options, warrants, agreements, conversion rights,
exchange rights, preemptive rights or other rights (whether contingent or not)
to subscribe for, purchase or acquire any issued or unissued shares of capital
stock of the Company or any of its Subsidiaries, (ii) no authorized or
outstanding stock appreciation, phantom stock, profit participation, or similar
rights with respect to the Company or any of its Subsidiaries, and (iii) no
rights, contracts, commitments or arrangements (contingent or otherwise)
obligating the Company or any of its Subsidiaries to either (A) redeem, purchase
or otherwise acquire, or offer to purchase, redeem or otherwise acquire any
outstanding shares of, or any outstanding warrants or rights of any kind to
acquire any shares of, or any outstanding securities that are convertible into
or exchangeable for any shares of, capital stock of the Company or any of its
Subsidiaries, or (B) pay any dividend or make any distribution in respect of any
shares of, or any outstanding securities that are convertible or exchangeable
for any shares of, capital stock of the Company or any of its Subsidiaries.
Except as set forth on Schedule 4.2., there are no securities or instruments
containing antidilution or similar provisions that will be triggered by the
issuance of the Common Stock or the Warrants pursuant to this Agreement. Except
as set forth on Schedule 4.2 no person has any right of first refusal, right of
first offer, right of co-sale or other similar right regarding the Company's
securities.
(c) The Common Stock and the Warrants to be issued pursuant to
this Agreement have been duly authorized and sufficient shares of Common Stock
have been reserved in contemplation of the issuance of shares of Common Stock
pursuant to Section 2 and the exercise of the Warrants issued pursuant to
Section 3. The Common Stock issued as of the date hereof is, and the shares of
Common Stock to be issued pursuant to Section 2 or upon exercise of the Warrants
issued pursuant to Section 3 will be, as the case may be, validly issued and
will be fully paid and nonassessable, and the issuance thereof will not have
been subject to any preemptive rights or made in violation of any applicable
law.
4.3 Authorization; Enforceability. The Company has the power and
authority to execute, deliver and perform its obligations under this Agreement,
the Consent and Amendment and the Warrants, and has taken all action necessary
to authorize the execution, delivery and
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performance by it of each of such documents and to consummate the transactions
contemplated thereby. No further corporate proceeding on the part of the Company
is necessary for such authorization, execution, delivery and performance of its
obligations under this Agreement, the Consent and Amendment and the Warrants.
The Company has duly executed and delivered this Agreement, the Consent and
Amendment and the [*]. This Agreement, the Consent and Amendment and the [*]
each constitutes a legal, valid and binding obligation of the Company
enforceable against the Company in accordance with its terms, except as such
enforceability may be limited by (a) applicable bankruptcy, insolvency,
reorganization, or other laws of general application affecting enforcement of
creditors' rights or (b) general principles of equity that restrict the
availability of equitable remedies.
4.4 No Violation; Consents. The execution, delivery and performance
by the Company of this Agreement, the Consent and Amendment, the [*] and the
Warrants and the consummation by the Company of the transactions contemplated
hereby and thereby do not and will not contravene any applicable law in any
material respect. The execution, delivery and performance by the Company of this
Agreement, the Consent and Amendment and the Warrants and the transactions
contemplated thereby (i) will not, in any material respect, (A) violate, result
in a breach of or constitute (with or without due notice or lapse of time or
both) a default (or give rise to any right of termination, cancellation or
acceleration) under any contract or other arrangement to which the Company is a
party or by which the Company is bound or to which any of its assets is subject
or (B) result in the creation or imposition of any lien or other encumbrance
upon any of the assets of the Company and (ii) will not conflict with or violate
any provision of the certificate of incorporation or bylaws of the Company as
currently in effect. No consent, authorization or order of, or filing or
registration with, any governmental authority is required to be obtained or made
by the Company or any of its Subsidiaries for the execution and delivery of this
Agreement, the Consent and Amendment, the [*] or the Warrants or the performance
by the Company of the transactions contemplated thereby (excluding any filings
required under Federal or State securities laws) except where the failure to
obtain such consents, authorizations or orders, or make such filings or
registrations, would not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect or a material adverse effect on the
ability of the Company to perform the transactions contemplated hereby and
thereby.
4.5 Commission Filings. The Company has filed all reports,
registration statements and other filings, together with any amendments or
supplements required to be made with respect thereto, that it has been required
to file with the Commission under the Securities Act and the Exchange Act. As of
the respective dates of their filing with the Commission, the Commission Filings
complied in all material respects with the applicable provisions of the
Securities Act and the Exchange Act and did not contain any untrue statement of
a material fact or omit to state a material fact required to be stated therein
or necessary to make the statements made therein, in the light of the
circumstances under which they were made, not misleading.
4.6 Private Offering. Based, in part, on [*]'s representations in
Section 5, the offering and issuance of the Common Stock pursuant to Section 2
and the Warrants pursuant to Section 5, as well as the offering and issuance of
Common Stock upon exercise of the Warrants, is or will be, as the case may be,
exempt from the registration and prospectus delivery requirements of the
Securities Act. Neither the Company, nor anyone acting on behalf of it, has
offered or sold or will
[*] Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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offer or sell any securities, or has taken or will take any other action
(including, without limitation, any offering of any securities of the Company
under circumstances that would require, under the Securities Act, the
integration of such offering with the offering and issuance of Common Stock and
Warrants contemplated by this Agreement), that would subject the offering and
issuance of Common Stock and Warrants pursuant to this Agreement to the
registration provisions of the Securities Act.
5. INVESTMENT REPRESENTATIONS.
[*] represents and warrants to the Company as follows:
5.1 [*] 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 Warrants. [*] will acquire
the Warrants and the Shares for its own account for investment purposes only and
not with a view to, or for the resale in connection with, any "distribution" for
purposes of the Securities Act of 1933, as amended (the "Securities Act").
5.2 [*] understands that the Warrants and the Shares have not been
registered under the Act in reliance upon a specific exemption, which exemption
depends upon, among other things, the bona fide nature of its investment intent
as expressed herein.
5.3 [*] further understands that the Warrants and the Shares are not
transferable unless transferred pursuant to an effective registration statement
under the Securities Act or unless an exemption from registration is otherwise
available. Moreover, [*] understands that, except as set forth in the Rights
Agreement, the Company is under no obligation to register the Warrants or the
Shares. In addition, the Purchaser understands that the Warrants and the Shares
will be imprinted with a legend that prohibits the transfer of the Warrants or
the Shares unless they are registered or such registration is not required under
the Securities Act in the opinion of counsel reasonably satisfactory to the
Company.
5.4 [*] is aware of the provisions of Rule 144, promulgated under the
Securities Act, that in substance, permit limited public resale of "restricted
securities" acquired, directly or indirectly from the issuer (or from an
affiliate of the issuer), in a non-public offering subject to the satisfaction
of certain conditions, including, in case [*] has held the securities less than
two years or is an affiliate of the Company: (1) the resale occurring not less
than one year after the party has purchased and paid for the securities to be
sold; (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 such terms are defined under
the Securities Exchange Act of 1934); (4) the amount of securities being sold
during any three-month period not exceeding certain specified limitations and
(5) the filing of a Notice of Sale on Form 144 as appropriate.
5.5 [*] further understands that at the time it wishes to sell the
Warrants or the Shares there may be no public market upon which to make such a
sale, and that, even if such a public market then exists the Company may not be
satisfying the current public information requirements of Rule 144, and that, in
such event, [*] would be precluded from selling the Warrants or Shares under
Rule 144 unless (1) a two-year minimum holding period had been satisfied
[*] Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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and (2) it is not at the time of sale nor at any time during the three-month
period prior to such sale an affiliate (as defined under the Securities Act) of
the Company.
5.6 [*] 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 in order to transfer the Warrant or the Shares; 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 restricted securities
other than in a registered offering and otherwise than pursuant to Rule 144 may
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 transaction do so at their own
risk.
5.7 [*] is an "accredited investor" within the meaning of Rule 501(a)
of Regulation D under the Securities Act.
6. RESERVATION OF SHARES. During the period within which the rights
represented by any of the Warrants may be exercised, the Company will at all
times have authorized and reserved for the purpose of the issue upon conversion
and exercise of any of these Warrants a sufficient number of shares of Common
Stock to provide for the issuance of the maximum number of shares issuable upon
conversion and exercise of outstanding Warrants.
7. LEGENDS.
7.1 Each Warrant shall be endorsed with the following legend (in
addition to any legend required by applicable state securities laws):
THIS WARRANT AND THE SHARES OF COMMON STOCK THAT MAY BE PURCHASED UPON
THE EXERCISE OF THIS WARRANT HAVE BEEN ACQUIRED SOLELY FOR INVESTMENT
AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "ACT"), OR ANY STATE SECURITIES LAWS. SUCH SECURITIES MAY
NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE
OF SUCH REGISTRATION OR AN OPINION OF COUNSEL SATISFACTORY TO THE
COMPANY AND ITS COUNSEL THAT SUCH SALE, OFFER OR PLEDGE IS EXEMPT FROM
THE REGISTRATION AND PROSPECTUS DELIVERY REQUIREMENTS OF THE ACT AND
OF ANY APPLICABLE STATE SECURITIES LAWS UNLESS SOLD PURSUANT TO RULE
144 OF THE ACT.
7.2 Each certificate representing Shares shall be endorsed with the
following legend (in addition to any legend required by applicable state
securities laws):
THE SECURITIES REPRESENTED HEREBY 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,
[*] Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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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.
7.3 Subject to Section 7.4, the Company need not register a transfer
of any Warrant or any of the Shares unless the conditions specified in the
foregoing legends are satisfied. The Company may also instruct its transfer
agent not to register the transfer of any Warrant or any of the Shares unless
such conditions are satisfied.
7.4 The legend relating to the Securities Act endorsed on the
Warrants or a stock certificate representing the Shares pursuant to this Section
7 and the stop transfer instructions with respect to the Warrants or the Shares
represented by such certificate shall be removed and the Company shall issue a
new Warrant or certificate, as applicable, without such legend to the holder of
the Warrant or such Shares if the transfer of such Warrant or Shares is
registered under the Securities Act and a prospectus meeting the requirements of
Section 10 of the Securities Act is available, or if such holder provides to the
Company an opinion of counsel for such holder of the Warrant or the Shares
reasonably satisfactory to the Company or a no-action letter or interpretive
opinion of the staff of the SEC to the effect that a public sale, transfer or
assignment of such Shares may be made without registration and without
compliance with any restriction under the Securities Act, such as Rule 144.
8. ASSIGNMENT. This Agreement shall bind and benefit the respective
parties to this Agreement and their successors and assigns; provided that [*]
shall not be entitled to assign the right to receive shares pursuant to Section
2 or Warrants pursuant to Section 3 or to purchase any Shares under any Warrant
other than such an assignment to an Affiliate of [*], until such Warrant has
been issued.
9. GENERAL.
9.1 All notices and other communications required or permitted
hereunder shall be effective upon receipt and shall be in writing and may be
delivered in person, by telecopy, overnight delivery service or U.S. mail, in
which event it may be mailed by first-class, certified or registered, postage
prepaid, addressed:
(a) if to [*], at:
[*]
[*]
[*]
[*]
Attention: [*]
With a copy to (which shall not be considered effective
notice):
[*] Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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[*]
[*]
[*]
[*]
Attention: [*]
or at such other address as [*] furnishes in writing to the Company, or
(b) if to the Company, at:
Wink Communications, Inc.
0000 Xxxxxx Xxxxxxx Xxxxxxx,
Xxxxxxx, Xxxxxxxxxx 00000
Fax: (000) 000-0000
Attention: Chief Financial Officer
With a Copy to (which shall not be considered effective
notice):
Wink Communications, Inc.
Fax: (000) 000-0000
Attention: General Counsel
or at such other address as the Company shall have furnished to [*] in writing.
9.2 This Agreement shall be governed in all respects by the laws of
the State of California as such laws are applied to agreements between
California residents entered into and to be performed entirely within
California.
9.3 The waiver of one breach or default shall not constitute the
waiver of any subsequent breach or default. In case any provision of this
Agreement shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired.
9.4 Neither this Agreement nor any provisions hereof may be amended,
changed, waived, discharged or terminated orally, except as set forth in a
writing signed by all parties hereto.
9.5 This Agreement, the [*], the Consent and Amendment of Investor
Rights Agreement and the Warrants (in the form hereto attached as Exhibit A),
together constitute the full and entire understanding and agreement between the
parties with regard to the subject matter of this Agreement.
9.6 This Agreement may be signed in one or more counterparts, each of
which shall be deemed an original, and all of which together shall be deemed to
constitute one instrument.
[*] Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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9.7 The titles of the paragraphs and subparagraphs of this Agreement
are for convenience of reference only and are not to be considered in construing
this Agreement.
9.8 THE SALE OF THE SECURITIES THAT ARE THE SUBJECT OF THIS AGREEMENT
HAS NOT BEEN QUALIFIED WITH THE COMMISSIONER OF CORPORATIONS OF THE STATE OF
CALIFORNIA AND THE ISSUANCE OF SUCH SECURITIES OR THE PAYMENT OR RECEIPT OF ANY
PART OF THE CONSIDERATION THEREFOR PRIOR TO SUCH QUALIFICATION, IS UNLAWFUL
UNLESS THE SALE OF SECURITIES IS EXEMPT FROM THE QUALIFICATION BY SECTION 25100,
25102, OR 25105 OF THE CALIFORNIA CORPORATIONS CODE. THE RIGHTS OF ALL PARTIES
TO THIS AGREEMENT ARE EXPRESSLY CONDITIONED UPON SUCH QUALIFICATION BEING
OBTAINED, UNLESS THE SALE IS SO EXEMPT.
IN WITNESS WHEREOF, the parties have executed this Agreement effective as of the
date set forth at the beginning of this Agreement.
WINK COMMUNICATIONS, INC. [*]
By: By:
-------------------------------- ---------------------------------
Title: Title:
----------------------------- ------------------------------
Dated: Dated:
----------------------------- ------------------------------
[*] Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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SCHEDULE 4.2
Document Approximate No. of Shares
------------------------------------------------------------------------------
1994 Option Plan 2,471,324
1999 Option Plan 3,305,924
1999 Director Option Plan 80,000
Warrants 5,135,000
And those documents publicly filed with the Securities and Exchange Commission
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EXHIBIT A
COMMON STOCK PURCHASE WARRANT
THIS WARRANT AND THE SHARES OF COMMON STOCK THAT MAY BE PURCHASED UPON THE
EXERCISE OF THIS WARRANT HAVE BEEN ACQUIRED SOLELY FOR INVESTMENT AND HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR ANY
STATE SECURITIES LAWS. SUCH SECURITIES MAY NOT BE SOLD, OFFERED FOR SALE,
PLEDGED OR HYPOTHECATED IN THE ABSENCE OF SUCH REGISTRATION OR AN OPINION OF
COUNSEL SATISFACTORY TO THE COMPANY AND ITS COUNSEL THAT SUCH SALE, OFFER OR
PLEDGE IS EXEMPT FROM THE REGISTRATION AND PROSPECTUS DELIVERY REQUIREMENTS OF
THE ACT AND OF ANY APPLICABLE STATE SECURITIES LAWS UNLESS SOLD PURSUANT TO RULE
144 OF THE ACT.
VOID AFTER [*], 2011
WINK COMMUNICATIONS, INC.
WARRANT TO PURCHASE SHARES OF COMMON STOCK
----------
THIS CERTIFIES THAT, for value received, [*], a Delaware corporation whose
address is [*] (the "HOLDER"), is entitled to subscribe for and purchase
________________ (_________) (as adjusted pursuant to Section 3 hereof) shares
of fully paid and non-assessable shares (the "Shares), par value $0.001 per
share ("Common Stock"), of Common Stock of Wink Communications, Inc., a Delaware
corporation whose address is 0000 Xxxxxx Xxxxxxx Xxxxxxx, Xxxxxxx, XX 00000 (the
"COMPANY"), at the price of _____________ ($ _____ ) per share in accordance
with the terms of the Common Stock and Warrant Issuance Agreement of [*],
2001 between the Company and Holder (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.
1.1 Time of Exercise. This Warrant shall become exercisable at any
time after the date of issuance but prior to its expiration pursuant to Section
10 hereof.
[*] Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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1.2 Method of Exercise.
(a) Cash Exercise. The purchase rights represented by this
Warrant may be exercised by the Holder, in whole or in part, by the surrender of
this Warrant (with the notice of exercise form attached hereto as Attachment 1
and the investment representation statement attached hereto as Attachment 2,
each duly executed) at the principal office of the Company, and by the payment
to the Company, by certified, cashier's or other check acceptable to the
Company, of an amount equal to the aggregate Exercise Price of the Shares being
purchased.
(b) Net Issue Exercise. In lieu of exercising this Warrant
for cash, the Holder may elect to receive Shares equal to the value of this
Warrant (or the portion thereof being canceled) by surrender of this Warrant at
the principal office of the Company together with notice of such election, in
which event the Company shall issue to the Holder a number of shares of the
Company's Common Stock computed using the following formula:
Y (A-B)
X = -------
A
Where X = the number of Shares to be issued to the Holder.
Y = the number of Shares purchasable under this Warrant.
A = the fair market value of one share of the Company's Common
Stock, as defined below.
B = the Exercise Price (as adjusted to the date of such
calculation).
(c) Fair Market Value. For purposes of this Section 1, the
fair market value of the Company's Common Stock shall mean:
(i) The average of the closing ask prices of the
Company's Common Stock quoted in the NASDAQ Over-the-Counter Market Summary or
if not available, the average of the closing prices quoted on any national
securities exchange on which the Common Stock is listed, as published in the
Western Edition of The Wall Street Journal, in either such case for the ten
trading days prior to the date of determination of fair market value;
(ii) If the Company's Common Stock is not traded on
the NASDAQ Over-the-Counter Market or on a national securities exchange, the per
share fair market value of the Common Stock shall be the fair market value price
per share as determined in good faith by the Company's Board of Directors.
1.3 Stock Certificates. Any exercise of this Warrant shall be deemed
to have occurred immediately prior to the close of business on the date of its
surrender for exercise as provided above, and the person entitled to receive the
shares of Common Stock issuable upon such exercise shall be treated for all
purposes as the holder of such shares of record as of the close of business on
such date. In the event of any exercise of the rights represented by this
Warrant, certificates for the shares of Common Stock so purchased shall be
delivered to the Holder promptly and, unless this Warrant has
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14
been fully exercised or has expired, a new Warrant representing the shares with
respect to which this Warrant shall not have been exercised shall also be issued
to the Holder promptly.
2. Stock Fully Paid; Reservation of Shares. All of the Shares issuable upon
exercise of this Warrant will, upon issuance and receipt of the Exercise Price
therefor in cash, or in accordance with the net-issue exercise procedure set
forth in Section 1(b) be fully paid and non-assessable, and free from all taxes,
liens and charges with respect to the issue thereof. During the period within
which the rights represented by this Warrant may be exercised, the Company shall
at all times have authorized and reserved for issuance sufficient shares of its
Common Stock to provide for the exercise of the rights represented by this
Warrant.
3. Adjustment of Exercise Price and Number of Shares. Subject to the
provisions of Section 10 hereof, the number and kind of securities purchasable
upon the exercise of this Warrant and the Exercise Price therefor shall be
subject to adjustment from time to time upon the occurrence of certain events,
as follows:
3.1 Reclassification, Consolidation or Merger. In case of any
reclassification or change of the Common Stock (other than a change in par
value, or as a result of a subdivision or combination), or in case of any
consolidation, merger of the Company with or into another entity (other than a
merger with another entity in which the Company is the surviving entity and that
does not result in any reclassification or change of outstanding securities of
the type issuable upon exercise of this Warrant), or sale of all or
substantially all of the assets of the Company, the Company or such successor or
purchasing entity, as the case may be, shall in connection with such transaction
execute a new Warrant, providing that the holder of this Warrant shall have the
right to exercise such new Warrant, and procure upon such exercise and payment
of the same aggregate Exercise Price, and upon terms and conditions
substantially the same as those set forth in this Warrant in lieu of the shares
of Common Stock theretofore issuable upon exercise of this Warrant, the kind and
amount of shares of stock, other securities, money and property receivable upon
such reclassification, change, consolidation, merger, exchange or sale by a
holder of an equivalent number of shares of Common Stock. Such new Warrant shall
provide for adjustments that shall be as nearly equivalent as may be practicable
to the adjustments provided for in this Section 3. Notwithstanding the
foregoing, in the event of a merger or sale of all or substantially all the
assets of the Company in which the consideration received by holders of Common
Stock consists solely of cash, then the holder of this Warrant shall be entitled
to receive such amount of cash received by holders of Common Stock on the date
such amount is received by holders of Common Stock on an equal basis with
holders of Common Stock as if this Warrant had been exercised immediately prior
to such event, less the Exercise Price. Upon payment of such amount, this
Warrant will terminate. The provisions of this subsection 3.1 shall similarly
apply to successive reclassifications, changes, consolidations, mergers and
transfers.
3.2 Stock Splits, Dividends and Combinations. In the event that the
Company shall at any time subdivide the outstanding shares of Common Stock or
shall issue a stock dividend on its outstanding shares of Common Stock the
number of Shares issuable upon exercise of this Warrant immediately prior to
such subdivision or to the issuance of such stock dividend shall be
proportionately increased, and the Exercise Price shall be proportionately
decreased, and in the event
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15
that the Company shall at any time combine the outstanding shares of Common
Stock the number of Shares issuable upon exercise of this Warrant immediately
prior to such combination shall be proportionately decreased, and the Exercise
Price shall be proportionately increased, effective at the close of business on
the date of such subdivision, stock dividend or combination, as the case may be.
4. Notice of Adjustments. Whenever the number of shares of Common Stock
purchasable hereunder or the Exercise Price therefor shall be adjusted pursuant
to Section 3 hereof, the Company shall provide written notice 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 that may be purchased and the Exercise
Price therefor after giving effect to such adjustment.
5. Fractional Shares. No fractional shares of Common Stock will be issued
in connection with any exercise hereunder. In lieu of such fractional shares,
the Company shall make a cash payment therefor based upon the Fair Market Value
of such Common Stock on the date of exercise.
6. Representations of the Company. The Company represents that all
corporate actions on the part of the Company, its officers, directors and
stockholders necessary for the exercising and delivery of this Warrant, the sale
and issuance of the Shares upon exercise hereof and the performance of the
Company's obligations hereunder were taken prior to and are effective as of the
date of issuance of this Warrant.
7. Restrictive Legend. Securities issued upon exercise of this Warrant
(unless registered under the Securities Act) shall be stamped or imprinted with
a legend in substantially the following form:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED
SOLELY FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR ANY STATE
SECURITIES LAWS. SUCH SECURITIES MAY NOT BE SOLD, OFFERED FOR SALE,
PLEDGED OR HYPOTHECATED IN THE ABSENCE OF SUCH REGISTRATION OR 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.
8. Restrictions Upon Transfer and Removal of Legend.
8.1 The Company need not register a transfer of Shares bearing the
restrictive legend set forth in Section 7 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 7 hereof is satisfied.
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16
8.2 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 Attachment 3).
9. Rights of Stockholders. No holder of this Warrant shall be entitled, by
virtue of its status as a Warrant holder, to vote or receive dividends or be
deemed the holder of Common Stock or any other securities of the Company that
may at any time be issuable on the exercise hereof for any purpose, nor shall
anything contained herein be construed to confer upon the holder of this
Warrant, by virtue of its status as a Warrant holder, any of the rights of a
stockholder of the Company or any right to vote for the election of directors or
upon any matter submitted to stockholders at any meeting thereof, or to give or
withhold consent to any corporate action (whether upon any recapitalization,
issuance of stock, reclassification of stock, change of par value,
consolidation, merger, conveyance, or otherwise) or to receive notice of
meetings, or to receive dividends or subscription rights or otherwise until the
Warrant shall have been exercised and the Shares purchasable upon the exercise
hereof shall have become deliverable, as provided herein.
10. Expiration of Warrant. This Warrant shall expire and shall no longer be
exercisable (to the extent, if at all, it has been come exercisable prior to
such expiration) upon the earlier to occur of:
10.1 5:00 p.m., California local time, on [*], 2011; or
10.2 The event described in the penultimate sentence of Section 3.1 of
this Warrant.
11. Notices, Etc. All notices and other communications from the Company to
the Holder shall be mailed by first class, express delivery, registered, or
certified mail, postage prepaid, at such address as may have been furnished to
the Company in writing by the Holder.
12. 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 ____ day of ______ 20__.
WINK COMMUNICATIONS, INC.
By: _______________________________
__________________________
Chief Financial Officer
[*] Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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ATTACHMENT 1
NOTICE OF EXERCISE
TO: WINK COMMUNICATIONS, INC.
0000 Xxxxxx Xxxxxxx Xxxxxxx
Xxxxxxx, XX 00000. Attention: Chief Financial Officer
1. The undersigned hereby elects to exercise the attached Warrant so as to
purchase __________ shares of Common Stock of WINK COMMUNICATIONS, INC. pursuant
to the terms of such Warrant.
2. Method of Exercise (Please xxxx 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 issue exercise provisions of
Section 1.2(b) 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 in violation of the Securities Act of
1933, as amended, and all representations and warranties of the undersigned set
forth in the attached Warrant are true and correct as of the date hereof. In
support thereof, the undersigned hereby delivers an Investment Representation
Statement in a form substantially similar to the form attached to the Warrant as
Attachment 2.
-----------------------------------
(Signature)
Title:
------------------------------- ----------------------------
(Date)
18
ATTACHMENT 2
INVESTMENT REPRESENTATION STATEMENT
PURCHASER :
-------------------------------
SELLER : WINK COMMUNICATIONS, INC.
ISSUER : WINK COMMUNICATIONS, INC.
SECURITY : COMMON STOCK ISSUED UPON EXERCISE OF THE COMMON STOCK PURCHASE
WARRANT ISSUED ON [*], 2001
AMOUNT : SHARES
----------
DATE :
--------------
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 in violation of the Securities Act of 1933, as amended (the "Securities
Act").
(b) Purchaser understands that the issuance of the Securities to Purchaser has
not been registered under the Securities Act in reliance upon a specific
exemption therefrom, which exemption depends upon, among other things, the bona
fide nature of its investment intent as expressed herein.
(c) Purchaser further understands that the Securities must be held indefinitely
unless subsequently registered under the Securities Act or unless an exemption
from registration is otherwise available. Moreover, Purchaser understands that
the Company is under no obligation to register the Securities, other than as
granted to investors in the Company generally as set forth in the Fourth Amended
and Restated Investor Rights Agreement dated as of June 30, 1999, as amended to
date and as further modified by a Consent and Amendment of Investors Rights
Agreement dated on or about the date of this Warrant and as may be subsequently
amended. In addition, Purchaser understands that, unless the Securities have
been registered under the Securities Act, the certificate evidencing the
Securities will be imprinted with a legend that prohibits the transfer of the
Securities unless and until such time that the Securities are sold pursuant to
an effective registration statement under the Securities Act or unless the
Company receives an opinion of counsel reasonably acceptable to it stating that
such sale or transfer is exempt from registration and prospectus delivery
requirements of the Securities Act.
(d) Purchaser is familiar with the provisions of Rule 144, promulgated under the
Securities Act, which, in substance, permit limited public resale of "restricted
securities" acquired, directly or
[*] Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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19
indirectly, from the issuer thereof, in a non-public offering subject to the
satisfaction of certain conditions. In particular, the Securities may be resold
in certain limited circumstances subject to the provisions of Rule 144, which
requires among other things: (1) the availability of certain public information
about the Company, (2) the resale occurring not less than one year after the
party has purchased, and made full payment for, within the meaning of Rule 144,
the securities to be sold; and, in the case of an affiliate, or of a
non-affiliate who has held the securities not less than two years, (3) the sale
being made through a broker in an unsolicited "broker's transaction" or in
transactions directly with a market maker (as said term is defined under the
Securities Exchange Act of 1934) and (4) the amount of securities being sold
during any three month period not exceeding the specified limitations stated
therein, if applicable.
(e) Purchaser further understands that in the event all of the applicable
requirements of Rule 144 are not satisfied, registration under the Securities
Act, compliance with Regulation A, or some other registration exemption will be
required; and that, notwithstanding the fact that the exemption provided by Rule
144 is not exclusive, the Staff of the SEC has expressed its opinion that
persons proposing to sell private placement securities other than in a
registered offering and otherwise than pursuant to Rule 144 will have a
substantial burden of proof in establishing that an exemption from registration
is available for such offers or sales, and that such persons and their
respective brokers who participate in such transactions do so at their own risk.
PURCHASER
By:
-------------------------------
Title:
----------------------------
Date:
-----------------------------
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ATTACHMENT 3
NOTICE OF TRANSFER
(To be signed only upon transfer of Warrant)
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
_______________________________________________ the right represented by the
attached Warrant to purchase ____________* shares of Common Stock of WINK
COMMUNICATIONS INC., to which the attached Warrant relates, and appoints
______________ Attorney to transfer such right on the books of WINK
COMMUNICATIONS, INC., with full power of substitution in the premises.
Dated:
------------------------
-----------------------------------
By:
-------------------------------
(Signature must conform in all
respects to name of Holder as
specified on the face of the
Warrant)
-----------------------------------
(Address)
Signed in the presence of:
---------------------------------
* Insert here the number of shares without making any adjustment for additional
shares of Common Stock or any other stock or other securities or property or
cash which, pursuant to the adjustment provisions of the Warrant, may be
deliverable upon exercise.
