Consent and Amendment to Investor Rights Agreement and Co-Sale Agreement by Wink Communications, Inc.

Summary

This agreement, effective as of a specified date, is between Wink Communications, Inc., certain new and existing investors, and relates to the amendment of the company's Investor Rights Agreement. It grants a new investor a warrant to purchase 1,300,000 shares of common stock and extends registration rights to this investor, treating them as an 'Investor' under the existing agreement. The amendment also allows the new investor to request certain public registrations of their shares, subject to specific conditions and limitations. Existing investors consent to these changes and the grant of rights to the new investor.

EX-4.3 2 c61163ex4-3.txt CONSENT AND AMENDMENT OF INVESTOR RIGHTS AGRMT. 1 EXHIBIT 4.3 NOTE: INFORMATION IN THIS DOCUMENT MARKED WITH AN "[*]" HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. WINK COMMUNICATIONS, INC. CONSENT AND AMENDMENT OF INVESTOR RIGHTS AGREEMENT AND CO-SALE AGREEMENT This Consent and Amendment of Investor Rights Agreement is effective as of [*] by and among Wink Communications, Inc. (the "Company"), [*], and those stockholders of the Company (the "Existing Investors") who are parties to the Fourth Amended and Restated Investor Rights Agreement dated as of June 30, 1999 (the "Rights Agreement"). WHEREAS, the Board of Directors of the Company has determined it to be in the best interests of the Company and its stockholders to issue to [*] a warrant to purchase 1,300,000 shares of Common Stock (the "[*] Warrant") [*]; WHEREAS, the Company desires and the Board of Directors has determined that it is in the best interests of the Company and its stockholders to grant to [*] certain registration rights in connection with the [*] Warrant; WHEREAS, in order to grant registration rights in connection with the [*] Shares, the Company wishes to amend the terms of the Rights Agreement; WHEREAS, Section 5.2 of the Rights Agreement provides for waiver, modification or amendment of certain provisions therein with the written approval of the holders of a majority of the Registrable Securities (as defined in the Rights Agreement); NOW, THEREFORE, the parties agree as follows: 1. GRANT OF RIGHTS AND AMENDMENT OF AGREEMENTS. The Company hereby grants to [*], and each Existing Investor hereby consents to such grant, in connection with the issuance of the [*] Shares, all registration rights granted to the "Investors" (as defined in the Rights Agreement) under the Section 2 of the Rights Agreement and the new registration right described in paragraph 3 hereof. Furthermore, the Rights Agreement is hereby amended such that [*] shall be treated as an "Investor" and "Holder" thereunder with respect to the [*] Shares for all purposes of Section 2, as amended hereby. In particular, [*] rights shall not be subordinate under Section 2.7 of the Rights Agreement to the rights of any other Holder under the Rights Agreement. 2. CONSENT TO AMEND, AND AMENDMENT OF, SECTION 1.1 OF THE RIGHTS AGREEMENT. [*] Certain information on this page has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions. 2 (a) The Company and the Existing Investors hereby consent to the addition of a definition of "[*] Warrant" to Section 1.1 of the Rights Agreement, and acknowledge that the execution of this Consent and Amendment by the holders of a majority of the Registrable Securities (as defined in the Rights Agreement) shall amend the Rights Agreement, as follows: "[*] Warrant" shall mean the warrant to purchase 1,300,000 shares of Common Stock (subject to appropriate adjustment in the event of any stock split, dividends, recombinations, recapitalizations and the like) issued or to be issued to [*], Inc. [*] 3. The Company and the Existing Investors hereby consent to the amendment of the definition of "Registrable Securities" contained in Section 1.1 of the Rights Agreement, and agree that the execution of this Consent and Amendment by the holders of a majority of the Registrable Securities (as currently defined in the Rights Agreement) shall amend such definition by changing phrase "the Thomson Warrant and the Vulcan Warrant" at the end of clause (iv) to read "the Thomson Warrant, the [*] Warrant and the Vulcan Warrant. CONSENT TO ADD, AND ADDITION OF, NEW SECTION 2.6A. The Company and the Existing Investors hereby consent to the addition of a new Section 2.6A to the Rights Agreement, and acknowledge that the execution of this Consent and Amendment by the holders of a majority of the Registrable Securities (as defined in the Rights Agreement) shall amend the Rights Agreement, which new section shall grant [*] certain additional rights to request registration of the shares of Common Stock issuable upon exercise of the [*] Warrant as follows: 2.6A REGISTRATION ON FORM S-3 FOR [*]. (a) Commencing on August 21, 2000, [*] may request that the Company file a registration statement on Form S-3 (or any successor form to Form S-3) for a public offering of shares of the Registrable Securities held by [*], provided that the reasonably anticipated aggregate offering price to the public of which, net of underwriting discounts and commissions, would exceed $1,000,000, and provided further that the Company is a registrant entitled to use Form S-3 to register the Registrable Securities for such an offering. If [*] makes such a request, the Company shall use diligent efforts to cause such Registrable Securities to be registered for such offering on such form within sixty (60) days of [*]'s request, and to cause such Registrable Securities to be qualified in such jurisdictions as the Holder or Holders may reasonably request; provided, however, that the Company shall not be required to effect more than one registration pursuant to this Section 2.6A in any six (6) month period or in excess of three registrations under this Section 2.6A. The substantive provisions of Section 2.4(b) shall be applicable to each registration initiated under this Section 2.6A. (b) Notwithstanding the foregoing, the Company shall not be obligated to take any action pursuant to this Section 2.6A: (i) in any particular jurisdiction in [*] Certain information on this page has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions. -2- 3 which the Company would be required to execute a general consent to service of process in effecting such registration, qualification or compliance unless the Company is already subject to service in such jurisdiction and except as may be required by the Securities Act; (ii) if the Company, within ten (10) days of the receipt of [*] request, gives notice of its bona fide intention to effect the filing of a registration statement with the Commission within ninety (90) days of receipt of such request (other than with respect to a registration statement relating to a Rule 145 transaction, an offering solely to employees or any other registration which is not appropriate for the registration of Registrable Securities); (iii) during the period starting with the date sixty (60) days prior to the Company's estimated date of filing of, and ending on the date six (6) months immediately following, the effective date of any registration statement pertaining to securities of the Company (other than a registration of securities in a Rule 145 transaction or with respect to an employee benefit plan), provided that the Company is actively employing in good faith all reasonable efforts to cause such registration statement to become effective; or (iv) if the Company shall furnish to [*] a certificate signed by the President of the Company stating that in the good faith judgment of the Board of Directors it would be seriously detrimental to the Company or its shareholders for registration statements to be filed in the near future, in which case the Company's obligation to use its best efforts to file a registration statement shall be deferred for a period not to exceed one hundred twenty (120) days from the receipt of the request to file such registration by [*]. 4. CONSENT TO GRANT RIGHTS. The Existing Investors hereby consent to grant [*], in connection with the [*] Warrant, all registration other rights under Section 2 of the Rights Agreement to which the Existing Investors are currently entitled under such agreements. [*] Certain information on this page has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions. [Remainder of Page Intentionally Left Blank] -3- 4 5. COUNTERPARTS. This Waiver may be signed in any number of counterparts, each of which shall constitute an original and all of which together shall constitute one instrument. COMPANY INVESTOR WINK COMMUNICATIONS, INC. ---------------------------------------- Print Name of Investor By: By: -------------------------- ----------------------------------- (Signature of Authorized Person) Title: Title: ------------------------- --------------------------------- [*] By: -------------------------- Title: ------------------------- [*] Certain information on this page has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions. -4-