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EXHIBIT 10.23
September 10, 1998
General Electric Capital Corporation
000 Xxxx Xxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Xx. Xxxxxxx Xxxxx
Managing Director
Equity Capital Group
Ladies and Gentlemen:
This letter sets forth the agreement (the "Agreement") between Wink
Communications, Inc. ("Wink") and General Electric Capital Corporation ("GE
Capital") with respect to certain arrangements contemplated in connection with
GE Capital's purchase of additional shares of Series C Preferred Stock in the
sixth closing (the "Sixth Closing") pursuant to that certain Series C Preferred
Stock Purchase Agreement dated as of April 17, 1997, as most recently amended by
that certain Consent to Amend and Amendment of Series C Preferred Stock Purchase
Agreement dated as the date hereof (the "Preferred Stock Purchase Agreement").
For good and valuable consideration, the receipt of which is hereby
acknowledged, and the parties hereto hereby agree as follows:
1. Press Releases. Any press release relating to this Agreement
or any of the transactions contemplated herein or therein using GE Capital's
name or any of its trademarks, logos, trade names of other intellectual property
or otherwise referring to GE Capital shall be subject to the prior written
approval of GE Capital. Wink understands and agrees that it may not use or
deploy in any manner or for any purpose any logo, trade name, trademark or other
intellectual property of GE Capital or any of its wholly-owned subsidiaries,
without GE Capital's express prior written consent.
2. Wink Representations, Warranties and Covenants. As an
inducement to GE Capital to purchase additional shares of Series C Preferred
Stock pursuant to the Preferred Stock Purchase Agreement and to consummate the
transactions contemplated thereby, Wink hereby represents, warrants and
covenants to GE Capital as follows:
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(a) Except as set forth in Section 3.4 of the Preferred Stock Purchase
Agreement as updated by that certain Compliance Certificate of Wink, dated as of
the date hereof, there are no securities, capital stock, options, warrants or
any other security convertible into or exchangeable for capital stock or other
rights to purchase or subscribe for any of Wink's authorized and issued capital
stock, options, warrants, securities convertible into or exchangeable for
capital stock or other rights.
(b) Subject to the accuracy of GE Capital's representations in Section
4.2 of the Preferred Stock Purchase Agreement and in the Certificate of GE
Capital dated as of the date hereof relating to GE Capital's status as a
qualified institutional buyer as defined in Rule 144A under the Securities Act
of 1933, as amended, the offer and issuance of the additional shares of Series C
Preferred Stock to GE Capital as contemplated thereby constitute transactions
exempt from the qualification requirements of the California Corporations Code.
(c) Wink is not subject to any restriction of any kind or character
which prohibits its performance of or compliance with all or any part of this
letter agreement. Wink is not subject to or aware of any voting trust agreement,
shareholders agreement or other agreement, understanding or representation,
written or oral, pursuant to which any shareholder or any other person or entity
has any rights with respect to the appointment or election of any director to
the Board, which is more favorable in any respect to such stockholder, person or
entity, than the terms of Section 3 of that certain Letter Agreement dated June
18, 1997 between the Wink and GE Capital (the "1997 Letter Agreement").
(d) Within thirty (30) days after the date hereof, Wink shall take all
action necessary to obtain the consent of the parties to (i) that certain Third
Amended and Restated Investor Rights Agreement dated as of June 18, 1997, as
amended from time to time (the "Rights Agreement") and (ii) that certain Third
Amended and Restated Co-Sale Agreement dated as of June 18, 1997, as amended
from time to time (the "Co-Sale Agreement"), to amend the Rights Agreement and
Co-Sale Agreement in the substantially the form attached hereto as Exhibit 1 and
to obtain all necessary signatures thereto. Upon receipt of the consent and
amendment to the Rights Agreement and Co-Sale Agreement, Wink shall issue to GE
Capital the warrant and a side letter related thereto in the forms attached
hereto as Exhibit 2 and Exhibit 3, respectively. In connection therewith, Wink
shall cause its legal counsel to deliver a legal opinion with respect to the
issuance of the warrant delivered to GE Capital for 25,000 shares of Common
Stock with an exercise price of $8.00 per share substantially in the form of the
legal opinion delivered by its counsel on the date hereof, except where the
securities to which the opinion relates shall be the warrant and the shares of
Common Stock issuable upon the exercise of the warrant.
(e) The computer systems and software owned or licensed by Wink are able
to accurately process date data, including but not limited to, calculating,
comparing and sequencing
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from, into and between the twentieth century (through year 1999), the year 2000
and the twenty-first century, including leap year calculations. To the knowledge
of Wink, any and all computer hardware, software, firmware and other product or
service furnished by any vendor to Wink, including any and all enhancements,
upgrades, customizations, modifications, maintenance and the like, are able to
accurately process, provide and/or receive date data, including but not limited
to, calculating, comparing and sequencing from, into and between the twentieth
century (through year 1999), the year 2000 and the twenty-first century,
including leap year calculations.
(f) Wink has delivered to GE Capital its unaudited Balance Sheet
as of June 30, 1998 (collectively, the "Financial Statement"). The Financial
Statement is complete and correct in all material respects and has been prepared
in accordance with generally accepted accounting principles. The Financial
Statement accurately sets out and describes the financial condition and
operating results of Wink as of the date, and during the period, indicated
therein.
3. Governing Law. This letter agreement shall be governed by and
construed in accordance with the laws of the State of New York (without regard
to its conflict of laws provisions). The parties hereby submit to the
jurisdiction of the federal and state courts located in the State of New York,
and any action or suit under this letter agreement shall only be brought by the
parties in any federal or state court with appropriate jurisdiction over the
subject matter established or settled in the State of New York. The parties
shall not raise in connection therewith, and hereby waive, trial by jury and/or
any defenses based upon venue, the inconvenience of the forum, the lack of
personal jurisdiction, the sufficiency of service of process or the like in any
action or suit brought pursuant to this letter agreement.
4. Relationship of the Parties. It is understood and agreed that
this letter agreement does not create any partnership, agency, joint venture or
employment relationship between the parties, that the parties are acting as
independent contractors with respect to each other, and that none of the
employees of any party shall be deemed to be employees of the other party for
any purpose.
5. Waiver/Modification. No modification or amendment to or waiver
of this letter agreement will be binding and valid unless it is in writing and
executed by the party against whom enforcement is sought. No waiver of any
breach of this letter agreement or of any default hereunder shall be deemed a
waiver of any other breach or default of this letter agreement.
6. Entire Agreement. The provisions of this Agreement set forth
the entire Agreement and understanding between the parties as to the subject
matter hereof and supersede all prior agreements, oral or written, and all other
communications between the parties relating to the
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subject matter hereof other than the Preferred Stock Purchase Agreement, the
1997 Letter Agreement and related written agreements executed by the parties in
connection therewith.
7. 1997 Side Letter. Notwithstanding the execution of this
Agreement, the 1997 Side Letter shall remain to be in full force and effect, and
the terms, conditions, covenants and agreements contained in the 1997 Side
Letter shall not be deemed modified, amended or repeated by this Agreement.
If you are in agreement with the above terms and conditions, please
indicate your acceptance by signing in the space provided below.
Very truly yours,
WINK COMMUNICATIONS, INC.
By:
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Title:
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ACCEPTED AND AGREED TO THIS
__th DAY OF _________, 1998:
GENERAL ELECTRIC CAPITAL CORPORATION
By:
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Title:
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