EXHIBIT 4.5
WINK COMMUNICATIONS, INC.
CONSENT AND AMENDMENT OF
INVESTOR RIGHTS AGREEMENT
This Consent and Amendment of Investor Rights Agreement (the
"Agreement") is effective as of January __, 2001 by and among Wink
Communications, Inc., a Delaware corporation (the "Company"), Comcast Wink,
Inc., a Delaware corporation ("Comcast"), and those stockholders of the Company
(the "Existing Investors") who are parties to the Fourth Amended and Restated
Investor Rights Agreement dated as of June 30, 1999, as amended to date (the
"Rights Agreement").
WHEREAS, the Board of Directors of the Company has determined it to be
in the best interests of the Company and its stockholders to issue to Comcast
warrants to purchase up to a maximum of 1,250,000 shares of Common Stock of the
Company (subject to appropriate adjustments in the event of any stock split,
dividend, recombination, recapitalization and the like) (the "Comcast Warrant")
in connection with Comcast's commitment to deploy the Company's Wink Service to
its subscribers pursuant to the Cable Affiliation Agreement dated November 21,
2000 between the Company and Comcast;
WHEREAS, the Company desires, and the Board of Directors has determined
that it is in the best interests of the Company and its stockholders, to grant
Comcast certain registration rights in connection with the shares issuable upon
exercise of the Comcast Warrant;
WHEREAS, in order to grant registration rights in connection with the
issuance of the Comcast Warrant, the Company wishes to amend the terms of the
Rights Agreement;
WHEREAS, Section 5.2 of the Rights Agreement provides for waiver,
modification or amendment of certain provisions therein with the written
approval of the holders of a majority of the Registrable Securities (as defined
in the Rights Agreement);
NOW, THEREFORE, the parties agree as follows:
1. GRANT OF RIGHTS AND AMENDMENT OF AGREEMENTS. The Company hereby
grants to Comcast, in connection with the issuance of the Comcast Warrant, all
registration rights granted to the "Investors" (as defined in the Rights
Agreement) under Section 2 of the Rights Agreement. Furthermore, the Rights
Agreement is hereby amended such that Comcast shall be each treated as an
"Investor" and "Holder" thereunder with respect to the shares issuable upon
exercise of the Comcast Warrant for all purposes of Section 2, as amended
hereby. In particular, Comcast's rights shall not be subordinate under Section
2.7 of the Rights Agreement to the rights of any other Holder under the Rights
Agreement.
2. CONSENT TO AMEND, AND AMENDMENT OF, THE RIGHTS AGREEMENT.
(a) The Company and the Existing Investors hereby consent to
the addition of a definition of "Comcast Warrant" to Section 1.1 of the Rights
Agreement, and acknowledge that the execution of this Consent and Amendment by
the holders of a majority of the Registrable Securities (as defined in the
Rights Agreement) shall so amend the Rights Agreement, as follows:
"Comcast Warrant" shall mean the warrants to purchase
up to a maximum of 1,250,000 shares of Common Stock (subject to
appropriate adjustment in the event of any stock split, dividend,
recombination, recapitalizations and the like) issued to Comcast Wink,
Inc. ("Comcast") pursuant to that certain Common Stock Purchase Warrant
dated November 21, 2000 between the Company and Comcast, and the Common
Stock issued upon the exercise of such warrants.
(b) The Company and the Existing Investors hereby consent to
the addition of a definition of "Warrantholders" to Section 1.1 of the Rights
Agreement, and acknowledge that the execution of this Consent and Amendment by
the holders of a majority of the Registrable Securities (as defined in the
Rights Agreement) shall so amend the Rights Agreement, as follows:
"Warrantholders" shall mean, collectively, the
Holders of the Benchmark Warrants, the EGI Warrants, the CBS
Warrants, the Disney Warrant, the GECC Warrant, the Microsoft
Warrant, the Adelphia Warrants, the EchoStar Warrant, the
Comcast Warrant, the Thomson Warrant, the Vulcan Warrant and
the Holders of any future issuances of warrants to purchase
Common Stock of the Company pursuant to commercial and equity
agreements approved by the Board of Directors with additional
partners who may provide deployment and/or operation services
to the Company.
(c) The Company and the Existing Investors hereby consent to
the amendment of the definition of "Purchaser" contained in Section 1.1 of the
Rights Agreement, and acknowledge that the execution of this Consent and
Amendment by the holders of a majority of the Registrable Securities (as defined
in the Rights Agreement) shall so amend the Rights Agreement, as follows:
"Purchaser" means all Prior Investors, each Series D
Investor and the Warrantholders.
(d) The Company and the Existing Investors hereby consent to
the amendment of the definition of "Purchasers" contained in Section 1.1 of the
Rights Agreement, and acknowledge that the execution of this Consent and
Amendment by the holders of a majority of the Registrable Securities (as defined
in the Rights Agreement) shall so amend the Rights Agreement, as follows:
"Purchasers" means all Prior Investors, each Series D
Investor and the Warrantholders, referred to collectively.
(e) The Company and the Existing Investors hereby consent to
the amendment of the definition of "Registrable Securities" contained in Section
1.1 of the Rights Agreement, and
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acknowledge that the execution of this Consent and Amendment by the holders of a
majority of the Registrable Securities (as defined in the Rights Agreement)
shall so amend the Rights Agreement, as follows:
"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, (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 Adelphia Warrants, the EchoStar Warrant, the
Comcast Warrant, the Thomson Warrant and the Vulcan Warrant, and (vi)
any future issuances of Common Stock and/or warrants to purchase Common
Stock of the Company pursuant to commercial and equity agreements
approved by the Board of Directors with additional partners who may
provide deployment and/or operation services to the Company; 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
restrictions and restrictive legends with respect thereto are removed
upon the consummation of such sale.
(f) The Company and the Existing Investors hereby consent to
the amendment of Section 5.2 of the Rights Agreement, and acknowledge that the
execution of this Consent and Amendment by the holders of a majority of the
Registrable Securities (as defined in the Rights Agreement) shall so amend the
Rights Agreement, as follows:
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. Notwithstanding the foregoing, this
Agreement may be amended with only the Company's
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prior written consent for the sole purpose of including under this
Agreement and granting registration rights set forth in Section 2
hereof to additional persons or entities with whom the Company may
enter into commercial and equity agreements similar in scope to the
agreements between the Company and each of the Deployment Partners.
[Remainder of Page Intentionally Left Blank]
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3. COUNTERPARTS. This Agreement may be signed in any number of
counterparts, each of which shall constitute an original and all of which
together shall constitute one instrument.
COMPANY EXISTING INVESTOR
WINK COMMUNICATIONS, INC.
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Print Name of Investor
By: By:
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Name: Name:
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Title: Title:
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COMCAST WINK, INC.
By:
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Name:
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Title:
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