EXHIBIT (d)(5)
AMENDMENT NO. 1 TO
AMENDED AND RESTATED AGREEMENT AND PLAN OF MERGER
THIS AMENDMENT NO. 1 TO AMENDED AND RESTATED AGREEMENT AND PLAN OF MERGER
(this "Amendment") is made as of December 14, 2001, by and among eMachines,
Inc., a Delaware corporation (the "Company"), EM Holdings, Inc., a Delaware
corporation ("Parent"), and Empire Acquisition Corp., a Delaware corporation and
wholly-owned subsidiary of Parent ("Buyer").
WHEREAS, the Company, Parent and Buyer entered into an Agreement and Plan
of Merger dated as of November 19, 2001 as subsequently amended and restated on
November 26, 2001 (the "Merger Agreement"); and
WHEREAS, the parties to the Merger Agreement wish to amend the Merger
Agreement;
NOW THEREFORE, the parties hereto agree as follows:
1. All capitalized terms used herein but not defined shall have the meanings
ascribed to them in the Merger Agreement.
2. Clause (ii) of the second paragraph of Annex A "Offer Conditions" to the
Merger Agreement is hereby amended and modified by deleting the phrase
"Financing, including but not limited to funds sufficient to enable the Buyer
to" and inserting in lieu thereof the following:
"Debt Commitment Letter, (or any financing provided by a Substitute Lender
pursuant to Section 6.10 of the Merger Agreement)including but not limited to
funds, when added to the amounts committed pursuant to the Equity Commitment
Letter, sufficient to enable the Buyer to"
3. Clause (ii) of the second paragraph of Annex A "Offer Conditions" to the
Merger Agreement is hereby amended and modified by deleting the defined term
"Financing" in the proviso thereto and inserting in lieu thereof the defined
term "Debt Commitment Letter (or any financing provided by a Substitute Lender
pursuant to Section 6.10 of the Merger Agreement)".
4. Except as expressly modified by this Amendment, the Merger Agreement
shall remain in full force and effect in accordance with its terms.
5. This Amendment shall become effective on the date first written above.
6. This Amendment will be governed and construed in accordance with the laws
of the State of Delaware, without giving effect to any choice of laws
principles.
7. This Amendment may be executed in two or more counterparts, which may be
delivered by facsimile transmission, each of which shall be deemed an original
and all of which together will constitute the same instrument.
IN WITNESS WHEREOF, the Parties have executed this Amendment as of the date
first above written.
EMACHINES, INC.
By: /s/ XXXXX XXXXXX
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Name: Xxxxx Xxxxxx
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Title: President and Chief Executive Officer
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EM HOLDINGS, INC.
By: /s/ Lap Xxxx Xxx
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Name: Lap Xxxx Xxx
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Title: President
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EMPIRE ACQUISITION CORP.
By: /s/ Lap Xxxx Xxx
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Name: Lap Xxxx Xxx
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Title: President
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