Sixth Amendment to Master Affiliation Agreement between Wink Communications, Inc. and DIRECTV, Inc.

Summary

This amendment updates the existing Master Affiliation Agreement between Wink Communications, Inc. and DIRECTV, Inc. It requires DIRECTV to allocate specific bandwidth in 2001 for the introduction and expansion of Interactive Wink Programming in selected markets and with new partners. Additionally, DIRECTV must hire a full-time content engineer dedicated to developing these programs, with Wink providing training and support. The amendment clarifies employment responsibilities and payment terms, and states that its provisions override any conflicting terms in previous agreements.

EX-10.54 12 c61163ex10-54.txt 6TH AMENDMENT TO THE MASTER AFFILIATION AGREEMENT 1 EXHIBIT 10.54 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. SIXTH AMENDMENT TO MASTER AFFILIATION AGREEMENT This Sixth Amendment (the "Sixth Amendment") to the Master Affiliation Agreement dated as of December 22, 1998, as amended in the First Amendment dated March 8 1999, the Second Amendment dated June 28, 1999, the Third Amendment dated July 24, 2000, the Fourth Amendment dated September 7, 2000 and the Fifth Amendment dated December 22, 2000 (as amended, the "Master Agreement"), by and between Wink Communications, Inc., a Delaware corporation ("Wink"), whose address is 1001 Marina Village Parkway, Alameda, California 94501 and DIRECTV, Inc., a California corporation, whose address is 2230 East Imperial Highway, El Segundo, California 90245 ("DIRECTV") is made as of this 1st day of March, 2001. 1. The parties hereby agree to amend Section 3.5 of the Master Agreement to delete in its entirety the provision that was added to such Section pursuant to the Fifth Amendment dated December 22, 2000, and to add (in lieu of such provision) the following: "Notwithstanding the foregoing, DIRECTV hereby agrees to allocate 600 kbits/sec. of bandwidth (the "Incremental Bandwidth") in the calendar year 2001 as follows: (a) in the first half of the year, 360 kbits/sec. shall be allocated to introduce Interactive Wink Programming on the transmission of the affiliates of the four major broadcast networks (i.e., ABC, CBS, NBC and Fox) in six markets identified by DIRECTV where DIRECTV does not currently transmit Interactive Wink Programs (such markets to be selected by DIRECTV with the goal of maximizing the distribution and availability of Interactive Wink Programming); and (b) in the second half of the year, 240 kbits/sec. shall be allocated to introduce Interactive Wink Programming with either (i) new Programmers, (ii) additional markets for the four major broadcast networks, and/or (iii) Virtual Channels, whereby the determination shall be made by DIRECTV, in DIRECTV's reasonable discretion, based upon a determination of that which is in the financial best interest of DIRECTV and Wink with respect to Wink Revenue Transactions. All of the Incremental Bandwidth shall continue to be allocated to transmission of Interactive Wink Programs throughout the Term, once allocated during 2001." 2. The parties hereby agree to replace Section 3.10 in its entirety with the following: "3.10. DIRECTV agrees to hire and retain the full-time services of a content engineer who will work primarily on the development of Interactive Wink Programs for DIRECTV (the "Content Engineer"). The Content Engineer will be retained by DIRECTV promptly upon execution of the Sixth Amendment and continuing throughout the Term, and will be primarily based at DIRECTV's offices; it being understood that DIRECTV may, in its discretion, at any time replace such Content Engineer with a different individual, provided that DIRECTV makes commercially reasonable efforts to keep the position filled throughout the Term. DIRECTV shall be responsible, as employer of the Content Engineer, for any and all costs associated with such employment arrangement by DIRECTV (including, but not limited to, any travel or other costs or expenses that DIRECTV undertakes as employer of the Content Engineer). Wink hereby agrees to provide training to the Content Engineer, as well as technical support as reasonably necessary, at no cost to DIRECTV. DIRECTV hereby agrees that the Content Engineer, as an employee of DIRECTV, shall be exclusively supervised and directed by DIRECTV. Accordingly, DIRECTV expressly acknowledges and agrees that the Content Engineer shall not have the status of an employee of Wink or its subsidiaries. DIRECTV acknowledges and agrees that the Content Engineer shall not be eligible to participate in any employee benefit, group insurance or executive compensation plans or programs maintained by Wink. Wink shall not be responsible for Social Security, unemployment compensation, disability insurance, workers' compensation or similar coverage, nor any other statutory benefits, with respect to the Content Engineer. DIRECTV further agrees to provide any and all necessary licenses permits, insurance policies and other documents required for the performance of its duties hereunder at its own expense. In exchange 2 for the foregoing, Wink hereby agrees to pay to DIRECTV by no later than the fifteenth day of the first month of each quarter commencing with the first quarter of 2001 and continuing throughout the Term, the sum of [*]; provided, however, that the payment for the first quarter of 2001 shall be paid concurrently with (i.e., on the payment date for) the payment for the second quarter 2001." In the event of any inconsistency between this Sixth Amendment and the Master Agreement or any other agreement between the parties, the Sixth Amendment shall be deemed controlling. In all other respects, the Master Agreement shall continue in full force and effect. IN WITNESS WHEREOF, the parties have caused this Sixth Amendment to be executed by their duly authorized officers and representatives as of the day and year first written above. WINK COMMUNICATIONS, INC. DIRECTV, INC. By: _______________________________ By: ________________________________ Name: ____________________________ Name: ______________________________ Title:_____________________________ 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. 2