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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 18, 1999.
REGISTRATION NO. 333-______
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
WINK COMMUNICATIONS, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 94-3212322
(STATE OF INCORPORATION) (I.R.S. EMPLOYER IDENTIFICATION NO.)
1001 MARINA VILLAGE PARKWAY
ALAMEDA, CALIFORNIA 94501
(510) 337-2950
(ADDRESS, INCLUDING ZIP CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
1994 STOCK PLAN
1999 STOCK PLAN
1999 DIRECTOR OPTION PLAN
1999 EMPLOYEE STOCK PURCHASE PLAN
(FULL TITLE OF THE PLAN)
MARY AGNES WILDEROTTER
PRESIDENT AND CHIEF EXECUTIVE OFFICER,
WINK COMMUNICATIONS, INC.
1001 MARINA VILLAGE PARKWAY
ALAMEDA, CALIFORNIA 94501
(510) 337-2950
(NAME, ADDRESS, AND TELEPHONE NUMBER, INCLUDING
AREA CODE, OF AGENT FOR SERVICE)
Copies to:
HERBERT P. FOCKLER, ESQ.
WILSON SONSINI GOODRICH & ROSATI
PROFESSIONAL CORPORATION
650 PAGE MILL ROAD
PALO ALTO, CA 94304-1050
(650) 493-9300
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
===============================================================================================================
PROPOSED MAXIMUM PROPOSED AMOUNT OF
TITLE OF SECURITIES AMOUNT TO BE OFFERING PRICE MAXIMUM AGGREGATE REGISTRATION
TO BE REGISTERED REGISTERED (1) PER SHARE OFFERING PRICE FEE
- ---------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $.001 par value..........
- 1994 Stock Plan 4,113,265 $ 5.58 (2) $22,952,018.70 $ 6,380.66
- 1999 Stock Plan 2,500,000 $16.00 (3) $40,000,000.00 $11,120.00
- 1999 Director Option Plan 250,000 $16.00 (3) $ 4,000,000.00 $ 1,112.00
- 1999 Employee Stock Purchase Plan 250,000 $13.60 (4) $ 3,400,000.00 $ 945.20
TOTAL 7,113,265 $70,352,018.70 $19,557.86
===============================================================================================================
</TABLE>
(1) This Registration Statement shall also cover any additional shares of
Common Stock which become issuable under any of the Plans being
registered pursuant to this Registration Statement by reason of any
stock dividend, stock split, recapitalization or any other similar
transaction effected without the receipt of consideration which results
in an increase in the number of the Registrant's outstanding shares of
Common Stock.
(2) Estimated in accordance with Rule 457(h) solely for the purpose of
calculating the registration fee. The price of $5.58 per share
represents the weighted average exercise price for outstanding options
to purchase a total of 4,113,265 shares of Common Stock.
(3) Estimated in accordance with Rule 457(h) solely for purposes of
calculating the registration fee on the basis of $16.00, the Price of
Public set forth on the cover page of the Company's Prospectus dated
August 18, 1999 relating to its initial public offering (the "Market
Price").
(4) Estimated in accordance with Rule 457(h) solely for purposes of
calculating the registration fee on the basis of $13.60 (85% of the
Market Price).
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WINK COMMUNICATIONS, INC.
REGISTRATION STATEMENT ON FORM S-8
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
There are hereby incorporated by reference in this Registration
Statement the following documents and information heretofore filed with the
Securities and Exchange Commission:
(a) The Registrant's Prospectus filed on August 19, 1999 pursuant
to Rule 424(b) of the Securities Act, which contains audited financial
statements for the Registrant's latest fiscal year for which such statements
have been filed.
(b) The description of the Registrant's Common Stock contained in
the Registrant's Registration Statement on Form 8-A dated July 8, 1999, filed
pursuant to Section 12(g) of the 1934 Act.
In addition, all documents filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment which indicates that all securities offered have been
sold or which deregisters all securities then remaining unsold, shall be deemed
to be incorporated by reference in this Registration Statement and to be part
hereof from the date of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Certain members of Wilson Sonsini Goodrich & Rosati and an investment
partnership with which they are affiliated beneficially own an aggregate of
8,750 shares of Common Stock.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the General Corporation Law of Delaware (the "DGCL")
provides that a Delaware corporation may indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of such corporation) by
reason of the fact that any such person is or was a director, officer, employee
or agent of such corporation, or is or was serving at the request of the
corporation as a director, officer, employee or agent of such corporation, or is
or was serving at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise. The indemnity may include expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by such person in connection with such action, suit or proceeding,
provided that such officer or director acted in good faith and in a manner such
person reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his or her conduct was unlawful. A Delaware
corporation may indemnify officers and directors against expenses (including
attorneys' fees) in connection with the defense or settlement of an action by or
in the right of the corporation under the same conditions, except that no
indemnification is permitted without judicial approval if the officer or
director is adjudged
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to be liable to the corporation. Where an officer or director is successful on
the merits or otherwise in the defense of any action referred to above, the
corporation must indemnify him or her against the expenses (including attorneys'
fees) which such officer or director actually and reasonably incurred. The
foregoing description is qualified in its entirety by reference to the more
detailed provisions of Section 145 of the DGCL.
Section 102 of the DGCL allows a Delaware corporation to eliminate or
limit the personal liability of a director to the corporation or to any of its
stockholders for monetary damage for a breach of fiduciary duty as a director,
except in the case where the director (i) breaches such person's duty of loyalty
to the corporation or its stockholders, (ii) fails to act in good faith, engages
in intentional misconduct or knowingly violates a law, (iii) authorizes the
payment of a dividend or approves a stock purchase or redemption in violation of
Section 174 of the DGCL or (iv) obtains an improper personal benefit.
In accordance with the DGCL, the Registrant's Certificate of
Incorporation contains a provision to limit the personal liability of its
directors for monetary damages for breach of their fiduciary duty to the fullest
extent permitted by the DGCL now, or as it may hereafter be amended.
In addition, as permitted by the DGCL, the Registrant's Bylaws provide
that (i) the Registrant is required to indemnify its directors and officers and
persons serving in such capacities in other business enterprises at the
Registrant's request, to the fullest extent permitted by Delaware law; (ii) the
Registrant may indemnify its employees and agents to the maximum extent
permitted by Delaware law; (iii) the Registrant is required to advance expenses
incurred by its directors and officers in connection with defending a proceeding
(except that a director or officer must undertake to repay any advances if it
should ultimately be determined that the director or officer is not entitled to
indemnification); (iv) the rights conferred in the Bylaws are not exclusive; and
(v) the Registrant may not retroactively amend the Bylaw provisions in a way
that adversely affects any director or officer.
The Registrant maintains insurance covering its directors and officers
against certain liabilities incurred by them in their capacities as such,
including among other things, certain liabilities under the Securities Act.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
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<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
<S> <C>
4.1 Specimen of Common Stock Certificate (incorporated by reference
to the exhibit filed with Amendment No. 1 to the Registrant's
Registration Statement on Form S-1 filed on July 29, 1999).
4.2 1994 Stock Plan and form of agreement thereunder (incorporated
by reference to the exhibit filed with Amendment No. 1 to the
Registrant's Registration Statement on Form S-1 filed on July
29, 1999).
4.3 1999 Stock Plan and form of agreement thereunder (incorporated
by reference to the exhibit filed with Amendment No. 1 to the
Registrant's Registration Statement on Form S-1 filed on July
29, 1999).
4.4 1999 Director Stock Plan (incorporated by reference to the
exhibit filed with Amendment No. 1 to the Registrant's
Registration Statement on Form S-1 filed on July 29, 1999).
4.5 1999 Employee Stock Purchase Plan and form of agreement
thereunder (incorporated by reference to the exhibit filed with
Amendment No. 1 to the Registrant's Registration Statement on
Form S-1 filed on July 29, 1999).
5.1 Opinion of Counsel as to legality of securities being
registered.
23.1 Consent of Counsel (contained in Exhibit 5.1).
23.2 Consent of Independent Accountants.
24.1 Power of Attorney (see Page II-5).
</TABLE>
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ITEM 9. UNDERTAKINGS.
A. The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement to include any
material information with respect to the plan of distribution not previously
disclosed in the registration statement or any material change to such
information in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
B. The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
1934 Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to section 15(d) of the of the 1934 Act) that is
incorporated by reference in the registration statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
C. Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered hereunder, the registrant will,
unless in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Alameda,
State of California, on this 18th day of August, 1999.
WINK COMMUNICATIONS, INC.
By: /s/ MARY AGNES WILDEROTTER
-------------------------------------
Name: Mary Agnes Wilderotter
Title: President and Chief
Executive Officer
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and
appoints each of Mary Agnes Wilderotter and Howard L. Schrott or any of them,
each acting alone, his or her true and lawful attorney-in-fact and agent, with
full power of substitution and resubstitution, for such person and in his or her
name, place and stead, in any and all capacities, in connection with this
Registration Statement, including to sign and file in the name and on behalf of
the undersigned as director or officer of the Registrant (i) any and all
amendments or supplements (including any and all stickers and post-effective
amendments) to this Registration Statement, with all exhibits thereto, and other
documents in connection therewith, and (ii) any and all additional registration
statements, and any and all amendments thereto, relating to the same offering of
securities as those that are covered by this Registration Statement that are
filed pursuant to Rule 462(b) under the Securities Act of 1933, with the
Securities and Exchange Commission and any applicable securities exchange or
securities self-regulatory body, granting unto said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and things requisite or necessary to be done in and about the
premises, as fully to all intents and purposes as he or she might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents or any of them, or their or his or her substitute or substitutes, may
lawfully do or cause to be done by virtue hereof.
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Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons on August 18,
1999 in the capacities indicated:
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<S> <C>
/s/MARY AGNES WILDEROTTER President and Chief Executive Officer; Director
- ---------------------------------- (principal executive officer)
Mary Agnes Wilderotter
/s/HOWARD L. SCHROTT Chief Financial Officer; Vice President and Secretary
- ---------------------------------- (principal financial officer and principal accounting
Howard L. Schrott officer)
/s/BRIAN P. DOUGHERTY Chairman of the Board of Directors and Chief
- ---------------------------------- Technical Officer
Brian P. Dougherty
/s/BRUCE W. DUNLEVIE Director
- ----------------------------------
Bruce W. Dunlevie
- ----------------------------------- Director
Hidetaka Yamamoto
- ----------------------------------- Director
F. Philip Handy
- ----------------------------------- Director
Jeffrey Coats
/s/WILLIAM SCHLEYER Director
- -----------------------------------
William Schleyer
/s/MICHAEL FUCHS Director
- ------------------------------------
Michael Fuchs
</TABLE>
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INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
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<S> <C>
4.1 Specimen of Common Stock Certificate (incorporated by reference
to the exhibit filed with Amendment No. 1 to the Registrant's
Registration Statement on Form S-1 filed on July 29, 1999).
4.2 1994 Stock Plan and form of agreement thereunder (incorporated
by reference to the exhibit filed with Amendment No. 1 to the
Registrant's Registration Statement on Form S-1 filed on July
29, 1999).
4.3 1999 Stock Plan and form of agreement thereunder (incorporated
by reference to the exhibit filed with Amendment No. 1 to the
Registrant's Registration Statement on Form S-1 filed on July
29, 1999).
4.4 1999 Director Stock Plan (incorporated by reference to the
exhibit filed with Amendment No. 1 to the Registrant's
Registration Statement on Form S-1 filed on July 29, 1999).
4.5 1999 Employee Stock Purchase Plan and form of agreement
thereunder (incorporated by reference to the exhibit filed with
Amendment No. 1 to the Registrant's Registration Statement on
Form S-1 filed on July 29, 1999).
5.1 Opinion of Counsel as to legality of securities being
registered.
23.1 Consent of Counsel (contained in Exhibit 5.1).
23.2 Consent of Independent Accountants.
24.1 Power of Attorney (see Page II-5).
</TABLE>
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EXHIBIT 5.1
August 18, 1999
Wink Communications, Inc.
1001 Marina Village Parkway
Alameda, California 94501
RE: REGISTRATION STATEMENT ON FORM S-8
Ladies and Gentlemen:
We have examined the Registration Statement on Form S-8 to be filed by
you with the Securities and Exchange Commission on or about August 18, 1999 (the
"Registration Statement"), in connection with the registration under the
Securities Act of 1933, as amended, of 4,113,265 shares under the 1994 Stock
Plan, 2,500,000 shares under the 1999 Stock Plan, 250,000 shares under the 1999
Director Option Plan and 250,000 shares under the 1999 Employee Stock Purchase
Plan (which Plans are referred to herein as the "Plans" and which Shares are
referred to herein as the "Shares"). As your legal counsel, we have examined the
proceedings taken and are familiar with the proceedings proposed to be taken by
you in connection with the proposed sale and issuance of the Shares pursuant to
the Plans.
It is our opinion that, when issued and sold in the manner referred to
in the Plans, the Shares will be legally and validly issued, fully paid and
nonassessable.
We consent to the use of this opinion as an exhibit to the Registration
Statement and further consent to the use of our name wherever appearing in the
Registration Statement and any amendment thereto.
Very truly yours,
WILSON SONSINI GOODRICH & ROSATI
Professional Corporation
/s/ WILSON SONSINI GOODRICH & ROSATI
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EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Registration
Statement on Form S-8 of our report dated February 23, 1999, except for Note 9
which is as of August 13, 1999, relating to the consolidated financial
statements of Wink Communications, Inc. (the "Company"), which appears in the
Company's Amendment No. 3 to the Registration Statement on Form S-1, dated
August 18, 1999.
/s/ PRICEWATERHOUSECOOPERS LLP
San Jose, California
August 18, 1999
