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EXHIBIT 10.33
AMENDED AND RESTATED 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.
THIS WARRANT AND THE SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE HEREOF ARE
ENTITLED TO THE BENEFITS UNDER A CERTAIN THIRD AMENDED AND RESTATED INVESTOR
RIGHTS AGREEMENT DATED AS OF JUNE 18, 1997, AS IT MAY BE AMENDED FROM TIME TO
TIME.
VOID AFTER JUNE 18, 2009
WINK COMMUNICATIONS, INC.
AMENDED AND RESTATED WARRANT TO PURCHASE
375,000 SHARES OF COMMON STOCK
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THIS CERTIFIES THAT, for value received, the sufficiency of which is hereby
acknowledged, NBC Multimedia, Inc., 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 375,000 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 exercisable as follows:
(i) As of June 18, 1997, this Warrant shall be fully vested and
immediately exercisable for up to 75,000 Shares; and
(ii) As of February 1, 1998, this Warrant shall be fully vested and
immediately exercisable for up to an additional 300,000 shares of Common Stock.
This Warrant may be exercised, in whole or in part, at any time or from
time to time from and after June 18, 1997 and before 5:00 p.m., California local
time, on June 18, 2009, on any business day, for the full or any partial number
of Shares for which this Warrant is then exercisable.
(b) Method of Exercise.
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.
(i) 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)
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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).
(ii) Fair Market Value. For purposes of this Section 1, the fair
market value of the Company's Common Stock shall mean:
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(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 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, assuming that this Warrant is exercisable for the full 375,000 Shares
from and after the date of original issuance of this Warrant and taking into
account the application of Section 3 below.
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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:
(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 $8.00 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 outstanding
(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).
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(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:
(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
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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
(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.
(iii) Excluded Stock. "Excluded Stock" shall mean:
(1) all shares of Common Stock issued and outstanding on April
1, 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 525,000 shares of Common Stock issuable upon
exercise of warrants issued to General Electric Capital Corporation and up to
375,000 shares of Common Stock issuable upon exercise of this Warrant; and
(4) up to 5,564,546 shares of Common Stock or other securities
issued after February 1, 1995 to employees, officers, directors, contractors,
advisors, consultants, banks, lessors or vendors 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).
(iv) 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
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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. Such adjustment shall become effective at
the close of business on the date the dividend, subdivision or split-up becomes
effective.
(v) 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.
(vi) 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.
(vii) 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, assuming that this Warrant is then exercisable for 375,000
Shares (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.
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(viii) 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.
(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.
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(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 as
expressed in the Warrant Purchase Agreement dated as of the date of original
issuance of this Warrant (the "Agreement"). In this connection, the Holder
understands that, in the view of the Securities and Exchange Commission ("SEC"),
the statutory 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 Amended and Restated Investor Rights Agreement, dated as of June
18, 1997.
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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.
(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
Xxxxxx 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 Holder, 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
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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, 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 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 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 of 1933, as amended.
Originally issued June 18, 1997
Amended and Restated February 1, 1998.
WINK COMMUNICATIONS, INC.
By: /s/ Xxxxxx Xxxxxxxxxxx
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Xxxxxx Xxxxxxxxxxx
Chief Executive Officer and
President
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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:
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(Name)
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(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.
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(Signature)
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(Date) Title:
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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.
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(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, 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:
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Title:
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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: ____________________
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By:
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(Signature must conform in all respects
to the to name of Xxxxxx as specified
on the face of the Warrant)
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(Address)
Signed in the presence of:
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* 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.
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