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EXHIBIT 10.35
COMMON STOCK PURCHASE WARRANT
THIS WARRANT AND THE SHARES OF COMMON STOCK WHICH MAY BE PURCHASED UPON THE
EXERCISE OF THIS WARRANT HAVE BEEN ACQUIRED SOLELY FOR INVESTMENT AND NOT WITH A
VIEW TO, OR IN CONNECTION WITH, THE SALE OR DISTRIBUTION THEREOF, EXCEPT AS
CONTEMPLATED HEREBY. NO SUCH SALE OR DISPOSITION MAY BE EFFECTED WITHOUT AN
EFFECTIVE REGISTRATION STATEMENT RELATED THERETO OR AN OPINION OF COUNSEL
REASONABLY SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
VOID AFTER AUGUST 27, 2003
WINK COMMUNICATIONS, INC.
WARRANT TO PURCHASE
25,000 SHARES OF COMMON STOCK
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THIS CERTIFIES THAT, for value received, the sufficiency of which is
hereby acknowledged, General Electric Capital Corporation, or its affiliates
within the meaning of Rule 501(b) under the Securities Act of 1933, as amended
or permitted assigns, (the "HOLDER"), is entitled to subscribe for and purchase
up to 25,000 shares (the "SHARES") (as adjusted pursuant to Section 3 hereof) of
fully paid and nonassessable Common Stock, par value $.001 per share (the
"Common Stock") of Wink Communications, Inc., a California corporation (the
"COMPANY"), at the price of $8.00 per share (the "EXERCISE PRICE") (as adjusted
pursuant to Section 3 hereof), subject to the provisions and upon the terms and
conditions hereinafter set forth. The term "Common Stock" shall mean, unless the
context otherwise requires, the stock and other securities and property at the
time receivable upon the exercise of this Warrant, after giving effect to all
adjustments under Section 3 hereof. Each reference to a number of Shares of
Common Stock herein shall mean such number after giving effect to all
adjustments under Section 3 hereof. The term "Warrant" as used herein shall
include this Warrant and any warrants delivered in substitution or exchange
therefor as provided herein.
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1. Exercise; Payment.
(a) Time of Exercise. This Warrant is fully vested and
immediately exercisable for up to 25,000 Shares.
This Warrant may be exercised, in whole or in part, at any
time or from time to time from and after August 27, 1998 and before 5:00 p.m.,
California local time, on August 27, 2003, on any business day, for the full or
any partial number of Shares for which this Warrant is then exercisable.
(b) Method of Exercise.
(i) Cash Exercise. The purchase rights represented
by this Warrant may be exercised by the Holder, in whole or in part, by the
surrender of this Warrant (with the notice of exercise form attached hereto as
Attachment 1 duly executed) at the principal office of the Company at 0000
Xxxxxx Xxxxxxx Xxxxxxx, Xxxxxxx, Xxxxxxxxxx 00000, and by the payment to the
Company, by certified or cashier's check or other check acceptable to the
Company, of an amount equal to the aggregate Exercise Price of the Shares being
purchased.
(ii) Net Issue Exercise. In lieu of exercising this
Warrant for cash under clause (i), 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:
X = Y (A-B)
------
A
Where X = the number of Shares to be issued to the Holder.
Y = the number of Shares for which this Warrant is then
being exercised (which number shall be at least the
lesser of 50,000 Shares or the remaining number of
Shares then exercisable hereunder).
A = the fair market value of one share of the Company's Common
Stock.
B = the Exercise Price (as adjusted to the date of such
calculation).
(iii) Fair Market Value. For purposes of this
Section 1, the fair market value of the Company's Common Stock shall mean:
(A) The average closing ask prices of the
Company's Common Stock quoted in the Nasdaq National Market Summary or the
closing prices quoted on any exchange on which the Common Stock is listed,
whichever is applicable, as published in the Western Edition
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of The Wall Street Journal for the ten trading days prior to the date of
determination of fair market value (provided, however, if this Warrant is
exercised in connection with the Company's initial public offering of its Common
Stock pursuant to an effective registration statement under the Securities Act
of 1933, as amended (the "IPO"), covering the offering of its Common Stock for
the account of the Company, the fair market value shall be deemed to be the
gross price to the public per share in such IPO);
(B) If the Company's Common Stock is not
traded Over-The- Counter or on an exchange, the per share fair market value of
the Common Stock shall be the fair market value price per share as determined in
good faith by the Company's Board of Directors; provided, however, that if such
determination is not reasonably acceptable to the Holder, such determination
shall be made by an investment banking firm mutually acceptable to the Company
and Holder; or, if the Company and the Holder are not able to so mutually agree
upon an investment banking firm, then by an investment banking firm selected by
two investment banking firms, one selected by the Company and the other selected
by the Holder. The Holder shall bear the expense of all such investment banking
firms.
(c) Stock Certificates. A Warrant shall be deemed to have been
exercised 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 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 within such time.
2. Stock Fully Paid; Reservation of Shares. All of the Shares issuable
upon the exercise of the rights represented by this Warrant will, upon issuance
and receipt of the Exercise Price therefor, be fully paid and nonassessable, and
free from all taxes, liens and charges with respect to the issuance thereof and
any preemptive or similar rights. The Company shall pay all expenses and any and
all United States federal, state and local taxes and other charges that may be
payable in connection with the preparation, issuance and delivery of
certificates representing the Shares, provided that the Company shall not be
responsible to pay any tax that may be payable in respect of any transfer
involved in the issuance and delivery of the Shares in a name other than the
Holder who surrendered the Warrant in exercise hereof. 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 full exercise of the rights represented by this
Warrant, taking into account the application of Section 3 below.
3. Adjustment of Exercise Price and Number of Shares. Notwithstanding
anything to the contrary in this Warrant:
(a) Adjustments. The Exercise Price per share of this Warrant
shall be subject to adjustment from time to time as follows:
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(i) Issuance of Common Stock and Common Stock
Equivalents. If, after the date of original issuance of this Warrant but prior
to an IPO effectuated through a firm commitment underwriting at a price per
share (prior to underwriter commissions and offering expenses) of not less than
$9.00 per share (as appropriately adjusted for any subsequent stock splits,
stock dividends, reclassifications or recapitalizations) and with gross proceeds
to the Company (prior to underwriter commissions and offering expenses) of not
less than $10,000,000, the Company shall issue (or, pursuant to Subsection
(a)(ii)(3) hereof, shall be deemed to have issued) any Common Stock other than
"Excluded Stock" (as defined below) for a consideration per share less than the
Exercise Price in effect immediately prior to the issuance of such Common Stock
(excluding stock dividends, subdivisions, split-ups, combinations, dividends or
recapitalizations covered by Subsections (a)(iv), (v), (vi) and (vii)), the
Exercise Price in effect immediately after each such issuance shall forthwith be
adjusted to a price equal to the quotient obtained by dividing:
(1) an amount equal to the sum of
(y) the total number of shares of
Common Stock out standing (including any shares of Common Stock issuable upon
exercise of this Warrant, or deemed to have been issued pursuant to Subsections
(a)(ii)(3) and (a)(iii)) immediately prior to such issuance multiplied by the
Exercise Price in effect immediately prior to such issuance, plus
(z) the consideration received by the
Company upon such issuance, by
(2) (y) the total number of shares of Common
Stock outstanding immediately prior to such issuance of Common Stock (including
any shares of Common Stock issuable upon exercise of this Warrant or deemed to
have been issued pursuant to Subsections (a)(ii)(3) and (a)(iii)) plus
(z) the number of shares of Common
Stock actually issued in the transaction which resulted in the adjustment
pursuant to this Subsection (a)(i).
In each such case the Holder, upon the exercise hereof, shall be entitled to
receive, in lieu of the shares of Common Stock theretofore receivable upon the
exercise of this Warrant, a number of shares of Common Stock determined by (i)
dividing the Exercise Price then in effect by the Exercise Price as adjusted as
provided above as a result of such sale and (ii) multiplying the quotient by the
number of shares of Common Stock called for on the face of this Warrant, subject
to Sections 1(a)(ii) and (iii).
(ii) Treatment of Certain Issuances. For the purposes
of any adjustment of the Exercise Price and the number of shares of Common Stock
issuable upon exercise of this Warrant pursuant to Subsection (a)(i), the
following provisions shall be applicable:
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(1) In the case of the issuance of Common
Stock for cash, the consideration shall be deemed to be the amount of cash paid
therefor after deducting any discounts or commissions paid or incurred by the
Company in connection with the issuance and sale thereof.
(2) In the case of the issuance of Common
Stock for a consideration in whole or in part other than cash, the consideration
other than cash shall be deemed to be the fair value thereof as reasonably
determined by the board of directors of the Company, in accordance with
generally accepted accounting treatment.
(3) In the case of the issuance of (x)
options to purchase or rights to subscribe for Common Stock (other than Excluded
Stock), (y) securities by their terms convertible into or exchangeable for
Common Stock (other than Excluded Stock), or (z) options to purchase or rights
to subscribe for such convertible or exchangeable securities:
(A) the aggregate maximum number of
shares of Common Stock deliverable upon exercise of such options to purchase or
rights to subscribe for Common Stock shall be deemed to have been issued at the
time such options or rights were issued and for a consideration equal to the
consideration (determined in the manner provided in Subsections (a)(ii)(1) and
(a)(ii)(2) above), if any, received by the Company upon the issuance of such
options or rights plus the minimum purchase price provided in such options or
rights for the Common Stock covered thereby;
(B) the aggregate maximum number of
shares of Common Stock deliverable upon conversion of or in exchange for any
such convertible or exchangeable securities, or upon the exercise of options to
purchase or rights to subscribe for such convertible or exchangeable securities
and subsequent conversion or exchange thereof, shall be deemed to have been
issued at the time such securities were issued or such options or rights were
issued and for a consideration equal to the consideration received by the
Company for any such securities and related options or rights (excluding any
cash received on account of accrued interest or accrued dividends), plus the
additional minimum consideration, if any, to be received by the Company upon the
conversion or exchange of such securities or the exercise of any related options
or rights (the consideration in each case to be determined in the manner
provided in Subsections (a)(ii)(1) and (a)(ii)(2) above);
(C) on any change in the number of
shares of Common Stock deliverable upon exercise of any such options or rights
or conversion of or exchange for such convertible or exchangeable securities, or
on any change in the minimum purchase price of such options, rights or
securities, other than a change resulting from the antidilution provisions of
such options, rights or securities, the Exercise Price shall forthwith be
readjusted to such Exercise Price as would have obtained had the adjustment made
upon (x) the issuance of such options, rights or securities not exercised,
converted or exchanged prior to such change or (y) the options or rights related
to such securities not converted or exchanged prior to such change, as the case
may be, been made upon the basis of such change; and
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(D) on the expiration of any such
options or rights, the termination of any such rights to convert or exchange or
the expiration of any options or rights related to such convertible or
exchangeable securities, the Exercise Price shall forthwith be readjusted to
such Exercise Price as would have obtained had the adjustment made upon the
issuance of such options, rights, convertible or exchangeable securities or
options or rights relate to such convertible or exchangeable securities, as the
case may be, been made upon the basis of the issuance of only the number of
shares of Common Stock actually issued upon the exercise of such options or
rights, upon the conversion or exchange of such convertible or exchangeable
securities or upon the exercise of the options or rights related to such
convertible or exchangeable securities, as the case may be.
(A) Excluded Stock. "Excluded Stock" shall mean:
(1) all shares of Common Stock issued and
outstanding on April 11, 1997;
(2) all shares of Series A Preferred Stock,
Series B Preferred Stock and Series C Preferred Stock of the Company (in each
case, outstanding on the date of this Warrant), and the Common Stock into which
such shares of Series A Preferred Stock, Series B Preferred Stock and Series C
Preferred Stock are convertible;
(3) up to 17,500 shares of Series B Preferred
Stock of the Company, 500,000 shares of Common Stock, and 125,000 shares of
Common Stock issuable upon exercise of warrants issued to Venture Lending &
Leasing, Inc., Benchmark Capital Partners, L.P. and Benchmark Founders Fund,
L.P., and WC Investors, LLC, respectively, up to 375,000 shares of Common Stock
issuable upon exercise of warrants issued to NBC Multimedia, Inc., up to 525,000
shares of Common Stock issuable upon exercise of the warrant issued to the
Holder on June 18, 1997 and 25,000 shares of Common Stock issuable upon exercise
of this Warrant; and
(4) up to 5,564,546 shares of Common Stock
(and/or options or warrants therefor) issued after February 1, 1995 (and net of
any repurchases) to employees, officers, directors, contractors, advisors,
consultants of the Company pursuant to incentive agreements or plans approved by
the Board of Directors of the Company;
All outstanding shares of Excluded Stock (including shares issuable upon
conversion of the Company's Series A Preferred Stock , the Series B Preferred
Stock and the Series C Preferred Stock) shall be deemed to be outstanding for
all purposes of the computations of Subsection(a)(i).
(iii) Stock Splits and Stock Dividends. If the number
of shares of Common Stock outstanding at any time after the date of original
issuance of this Warrant is increased by a stock dividend payable in shares of
Common Stock or by a subdivision or split-up of shares of Common Stock, then, on
the date such payment is made or such change is effective, the Exercise Price
shall be proportionately decreased and the number of shares of Common Stock
issuable on exercise of this Warrant shall be increased in proportion to such
increase of outstanding shares.
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Such adjustment shall become effective at the close of business on the date the
dividend, subdivision or split-up becomes effective.
(iv) Reverse Stock Splits. If the number of shares of
Common Stock outstanding at any time after the date of original issuance of this
Warrant is decreased by a combination of the outstanding shares of Common Stock,
then, on the effective date of such combination, the Exercise Price shall be
proportionately increased and the number of shares of Common Stock issuable on
exercise of this Warrant shall be decreased in proportion to such decrease in
outstanding shares. Such adjustment shall become effective at the close of
business on the date the combination becomes effective.
(v) Certain Dividends. In case the Company shall
declare a dividend upon its Common Stock generally payable otherwise than out of
retained earnings or shall distribute to all holders of its Common Stock shares
of its capital stock (other than Common Stock), stock or other securities of
other persons, evidences of indebtedness issued by the Company or other persons,
assets (excluding cash dividends) or options or rights (excluding options to
purchase and rights to subscribe for Common Stock or other securities of the
Company convertible into or exchangeable for Common Stock), then, in each such
case, the Exercise Price shall be adjusted by multiplying the Exercise Price in
effect immediately prior to the date of such dividend or distribution by a
fraction, the numerator of which is the Aggregate Valuation of the Company as of
such date less the fair market value of the cash, securities, indebtedness,
assets or rights so distributed and the denominator of which is the Aggregate
Valuation of the Company. For purposes hereof, "Aggregate Valuation of the
Company" shall mean the Fair Market Value of one share of the Company's Common
Stock, determined in the manner set forth in Section 1(b)(iii), multiplied by
the total number of shares of Common Stock outstanding (including any shares of
Common Stock issuable upon exercise of this Warrant, or deemed to have been
issued pursuant to Subsections 3(a)(ii)(3) and 3(a)(iii)) as of such date.
(vi) Reorganization; Reclassification. In the case,
at any time after the date of original issuance of this Warrant, of any capital
reorganization, or any reclassification of the stock of the Company (other than
as a result of a stock dividend or subdivision, split-up or combination of
shares), the consolidation or merger of the Company with or into another person
(other than a consolidation or merger in which the Company is the continuing
entity and which does not result in any change in the Common Stock), or a sale
or transfer of all or substantially all of the Company's assets, this Warrant
shall, after such reorganization, reclassification, consolidation, merger or
sale, be exercisable for the kind and aggregate number of shares of stock or
other securities or property of the Company or other entity to which the Holder
would have been entitled if, immediately prior to such reorganization,
reclassification, consolidation, merger or sale, such Holder had exercised this
Warrant in full (subject to all adjustments under this Section 3). The
provisions of this clause (vii) shall similarly apply to successive
reorganizations, reclassifications, consolidations, mergers or sales.
(vii) All calculations under this Subsection (a)
shall be made to the nearest cent or to the nearest one hundredth (1/100) of a
share, as appropriate.
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(b) Minimal Adjustments. No adjustment in the Exercise Price
need be made if such adjustment would result in a change in the Exercise Price
of less than $0.01. Any adjustment of less than $0.01 which is not made shall be
carried forward and shall be made at the time of and together with any
subsequent adjustment which, on a cumulative basis, amounts to an adjustment of
$0.01 or more in the Exercise Price. If, after one or more adjustments to the
Exercise Price pursuant to this Section 3, the Exercise Price cannot be reduced
further without falling below the greater of (i) $0.001 or (ii) the lowest
positive exercise price legally permissible for warrants to acquire shares of
Common Stock, the Company shall make further adjustment to compensate the
holder, consistent with the foregoing principles, as the Board of Directors,
acting in good faith, deems necessary, including an increase in the number of
Shares issuable upon exercise of outstanding Warrants and/or a cash payment to
the Holder.
4. Notice of Adjustments. Whenever the number of Shares purchasable
hereunder or the Exercise Price thereof shall be adjusted pursuant to Section 3
hereof, the Company shall provide notice by first class mail to the holder of
this Warrant setting forth, in reasonable detail, the event requiring the
adjustment, the amount of the adjustment, the method by which such adjustment
was calculated, and the number of Shares which may be purchased and the Exercise
Price therefor after giving effect to such 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 Exercise
Price then in effect.
6. Representations of the Company. The Company represents that all
corporate actions on the part of the Company, its officers, directors and
shareholders necessary for the sale and issuance of the Shares and the issuance
of this Warrant pursuant hereto and the performance of the Company's obligations
hereunder were taken prior to and are effective as of the effective date of this
Warrant.
7. Representations and Warranties by the Holder. The Holder represents
and warrants to the Company as follows:
(a) This Warrant is being acquired for its own account, for
investment and not with a view to, or for resale in connection with, any
distribution or public offering thereof within the meaning of the Securities Act
of 1933, as amended (the "ACT"), except as contemplated hereby. Upon exercise of
this Warrant, the Holder shall, if so requested by the Company, confirm in
writing, in a form reasonably satisfactory to the Company, that the securities
issuable upon exercise of this Warrant are being acquired for investment and not
with a view toward public distribution or resale, except as contemplated hereby.
(b) The Holder understands that the Warrant 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. In this connection, the Holder understands that, in the view of the
Securities and Exchange Commission ("SEC"), the statutory
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basis for such exemption may be unavailable if its representation was predicated
solely upon a present intention to hold the Warrant or the Shares for a period
of one year or any other fixed period in the future. The Holder further
understands that the Warrant and/or the Shares must be held indefinitely and are
not fully transferable unless subsequently registered under the Act or unless an
exemption from registration is otherwise available. The Holder further
understands that the Shares have not been qualified under the California
Securities Law of 1968 (the "CALIFORNIA LAW") by reason of their issuance in a
transaction exempt from the qualification requirements of the California Law
pursuant to Section 25102(f) thereof, which exemption depends upon, among other
things, the bona fide nature of the Holder's investment intent expressed above.
(c) The Holder has such knowledge and experience in financial
and business matters that it is capable of evaluating the merits and risks of
the purchase of this Warrant and the Shares purchasable pursuant to the terms of
this Warrant and of protecting its interests in connection therewith.
(d) The Holder is able to bear the economic risk of the
purchase of the Shares pursuant to the terms of this Warrant.
8. Restrictive Legend.
The Shares issuable upon exercise of this Warrant (unless
registered under the Act) shall be stamped or imprinted with a legend in
substantially the following form:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED
FOR INVESTMENT AND NOT WITH A VIEW TO, OR IN CONNECTION WITH,
THE SALE OR DISTRIBUTION THEREOF, EXCEPT AS CONTEMPLATED
HEREBY. NO SUCH SALE OR DISPOSITION MAY BE EFFECTED WITHOUT AN
EFFECTIVE REGISTRATION STATEMENT RELATED THERETO OR AN OPINION
OF COUNSEL REASONABLY SATISFACTORY TO THE COMPANY THAT SUCH
REGISTRATION IS NOT REQUIRED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED.
The Shares issuable upon exercise of this Warrant are entitled to the
benefits under and shall be stamped or imprinted with all legends required by
that certain Third Amened and Restated Investor Rights Agreement dated as of
June 18, 1997, as further amended by that certain Waiver of Rights of First
Refusal and Amendment to Investor Rights Agreement dated as of October 15, 1997.
9. Restrictions Upon Transfer and Removal of Legend.
(a) The Company need not register a transfer of Shares bearing
the restrictive legend set forth in Section 8 hereof, unless the conditions
specified in such legend are satisfied. The Company may also instruct its
transfer agent not to register the transfer of the Shares, unless one of the
conditions specified in the legend referred to in Section 8 hereof is satisfied.
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(b) Notwithstanding the provisions of paragraph (a) above, no
opinion of counsel or "no-action" letter shall be necessary for a transfer
without consideration by any Holder (i) to an affiliate of the Holder, (ii) if
such Holder is a partnership, to a partner or retired partner of such
partnership who retires after the date of original issuance of this Warrant or
to the estate of any such partner or retired partner, (iii) if such Holder is a
corporation, to a shareholder of such corporation, or to any other corporation
under common control, direct or indirect, with such Xxxxxx, or (iv) by gift,
will or intestate succession of any individual Holder or individual partner of a
Holder, in whole or in part, to his spouse or siblings, or to the lineal
descendants or ancestors of such Holder or his spouse, if the transferee agrees
in writing to be subject to the terms hereof to the same extent as if such
transferee were the original Holder hereunder. Subject to the terms hereof, this
Warrant and all rights hereunder are transferable, in whole or in part, on the
books of the Company maintained for such purpose at its principal office
referred to above by Holder. Upon any partial transfer, the Company will issue
and deliver to Holder a new Warrant or Warrants with respect to the portion of
the Warrant not so transferred and shall issue to that transferee a new Warrant
or Warrants relating to the portion of this Warrant so transferred. Each person
who is a transferee of all or any portion of this Warrant in accordance herewith
shall be deemed a Holder entitled to all of the benefits and rights hereunder.
(c) In order to effect any transfer of all or a portion of
this Warrant or the Shares, the transferor shall deliver a completed and duly
executed Notice of Transfer (attached hereto as Attachment 3).
(d) The legend relating to the Act endorsed on this Warrant or
stock certificate and the stop transfer instructions with respect to the Warrant
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 Shares is
registered under the Act and a prospectus meeting the requirements of Section 10
of the 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 such as
Rule 144.
(e) In case this Warrant shall be mutilated, lost, stolen, or
destroyed, the Company may, in its discretion, issue and deliver in exchange and
substitution for and upon cancellation of the mutilated Warrant, or in lieu of
and substitution for the Warrant lost, stolen, or destroyed, a new Warrant of
like tenor and representing an equivalent right or interest, but only upon
receipt of evidence reasonably satisfactory to the Company of such loss, theft
or destruction and indemnification reasonably satisfactory to it. An applicant
for such a substitute Warrant shall also comply with such other reasonable
regulations and pay such other reasonable charges as the Company may prescribe.
10. Rights of Shareholders. No Holder of this Warrant shall be
entitled, as a Warrant Holder, to vote or receive dividends or be deemed the
Holder of Common Stock or any other securities of the Company which may at any
time be issuable on the exercise hereof for any purpose,
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nor shall anything contained herein be construed to confer upon the Holder of
this Warrant, as such, any of the rights of a shareholder of the Company or any
right to vote for the election of directors or upon any matter submitted to
shareholders at any meeting thereof, or to give or withhold consent to any
corporate action (whether upon any recapitalization, issuance of stock,
reclassification of stock, change of par value, consolidation, merger,
conveyance, or otherwise) or to receive notice of meetings, or to receive
dividends until the Warrant shall have been exercised and the Shares purchasable
upon the exercise hereof shall have become deliverable, as provided herein.
Notwithstanding the foregoing, each Holder shall be entitled to the rights and
benefits in and shall be bound by the obligations of that certain Third Amended
and Restated Investor Rights Agreement dated as of June 18, 1997, as further
amended by that certain Waiver of Right of First Refusal and Amendment to
Investor Rights Agreement dated as of October 15, 1997, as set forth therein (as
the same may be modified in accordance therewith).
11. Notices, Etc. All notices and other communications from the Company
to the Holder shall be mailed by first class registered or certified mail,
postage prepaid, 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.
13. Change. Neither this Warrant nor any term hereof may be changed,
waived, discharged or terminated orally but only by an instrument in writing
signed by the party against which enforcement of the change, waiver, discharge
or termination is sought.
14. No Impairment. The Company will not, by amendment of its Articles
of Incorporation or through reorganization, recapitalization, consolidation,
merger, dissolution, issue, sale or repurchase of securities, sale of assets or
any other voluntary action, intentionally avoid or seek to avoid, directly or
indirectly, the observance or performance of any of the terms of this Warrant or
the wrongful denial of any of the benefits or rights (including, without
limitation, protection against dilution) intended to be conferred to the Holder,
but will at all times in good faith assist in the carrying out of all such terms
and in the taking of all such action as may be necessary or appropriate in order
to protect the rights of the Holders of the Warrant against impairment.
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15. Limitations on Assignment. The right to purchase Shares hereunder
may not be assigned as to any Shares for which this Warrant is not exercisable,
except to any of the affiliates within the meaning of Rule 501(b) of the
Securities Act of 1933, as amended (the "Securities Act") of General Electric
Capital Corporation, including, without limitation, NBC or any of its affiliates
within the meaning of Rule 501(b) of the Securities Act.
Dated: August 27, 1998
WINK COMMUNICATIONS, INC.
By: /s/ Xxxxxxxx X. Xxxxxx
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Xxxxxxxx X. Xxxxxx
Chief Financial Officer
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Attachment 1
NOTICE OF EXERCISE
TO: WINK COMMUNICATIONS, INC.
0000 Xxxxxx Xxxxxxx Xxxxxxx
Xxxxxxx, XX 00000
Attention: President
1. The undersigned hereby elects to purchase __________ shares of Common Stock
of WINK COMMUNICATIONS, INC. pursuant to the terms of the attached Warrant.
2. Method of Exercise (Please mark the applicable blank):
___ The undersigned elects to exercise the attached
Warrant by means of a cash payment, and tenders
herewith payment in full for the purchase price of
the shares being purchased, together with all
applicable transfer taxes, if any.
___ The undersigned elects to exercise the attached
Warrant by means of the net exercise provisions of
Section 1(b)(ii) of the Warrant.
3. Please issue a certificate or certificates representing said shares of Common
Stock in the name of the undersigned or in such other name as is specified
below:
---------------------------------
(Name)
---------------------------------
---------------------------------
(Address)
4. The undersigned hereby represents and warrants that the aforesaid shares of
Common Stock are being acquired for the account of the undersigned for
investment and not with a view to, or for resale, in connection with the
distribution thereof, and that the undersigned has no present intention of
distributing or reselling such shares and all representations and warranties of
the undersigned set forth in Section 7 of the attached Warrant are true and
correct as of the date of original issuance of this Warrant. 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)
-13-
14
ATTACHMENT 2
INVESTMENT REPRESENTATION STATEMENT
PURCHASER : _________________________
SELLER : WINK COMMUNICATIONS, INC.
COMPANY : WINK COMMUNICATIONS, INC.
SECURITY : COMMON STOCK ISSUED UPON EXERCISE OF THE STOCK
PURCHASE WARRANT ISSUED ON _____ ___, 199_
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 for purposes of the Securities Act of 1933, as amended (the "Securities
Act").
(b) Purchaser understands that the Securities have not been registered
under the Securities Act in reliance upon a specific exemption therefrom, which
exemption depends upon, among other things, the bona fide nature of its
investment intent as expressed herein. In this connection, Purchaser understands
that, in the view of the Securities and Exchange Commission (the "SEC"), the
statutory basis for such exemption may be unavailable if its representation was
predicated solely upon a present intention to hold these Securities for a period
of one year or any other fixed period in the future.
(c) Purchaser further understands that the Securities must be held
indefinitely unless subsequently registered under the Securities Act or unless
an exemption from registration is otherwise available. Moreover, Purchaser
understands that the Company is under no obligation to register the Securities.
In addition, Purchaser understands that the certificate evidencing the
Securities will be imprinted with a legend which prohibits the transfer of the
Securities unless the transfer thereof is registered under the Securities Act or
such registration is not required in the opinion of counsel (which may include
counsel for Purchaser) reasonably acceptable to the Company.
(d) Purchaser is familiar with the provisions of Rule 144, promulgated
under the Securities Act, which, in substance, permits limited public resale of
"restricted securities" acquired,
15
directly or indirectly, from the issuer thereof, in a non-public offering
subject to the satisfaction of certain conditions.
The Securities may be resold in certain limited circumstances subject
to the provisions of Rule 144, which requires among other things: (1) the
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 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 the amount of
securities being sold during any three month period not exceeding the specified
limitations stated therein, if applicable.
(e) Purchaser 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 held by the undersigned (other than those securities 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.
(f) Purchaser further understands that in the event all of the
applicable requirements of Rule 144 are not satisfied, registration under the
Securities Act, compliance with Regulation A, or some other registration
exemption will be required; and that, notwithstanding the fact that Rule 144 are
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 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 transactions do so at their own risk.
PURCHASER
By:
------------------------------------
Title:
---------------------------------
Date:
----------------------------------
-2-
16
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 Xxxxxx as specified on the
face of the Warrant)
---------------------------------------
(Address)
Signed in the presence of:
----------------------------
* Insert here the number of shares without making any adjustment for additional
shares of Common Stock or any other stock or other securities or property or
cash which, pursuant to the adjustment provisions of the Warrant, may be
deliverable upon exercise.
