EXHIBIT E
THIS WARRANT HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "ACT") OR OTHERWISE QUALIFIED FOR
SALE UNDER APPLICABLE SECURITIES LAWS. NO SALE OR DISPOSITION
MAY BE EFFECTED WITHOUT (I) QUALIFICATION UNDER APPLICABLE
SECURITIES LAWS, (II) AN OPINION OF COUNSEL OR OTHER
EVIDENCE, REASONABLY SATISFACTORY TO THE COMPANY, THAT SUCH
QUALIFICATION IS NOT REQUIRED, (III) RECEIPT OF NO-ACTION
LETTERS OR EQUIVALENT INDICATION OF CONCURRENCE THAT NO
QUALIFICATION IS NECESSARY FROM THE APPROPRIATE GOVERNMENTAL
AUTHORITIES, OR (IV) OTHERWISE COMPLYING WITH THE PROVISIONS
OF SECTION 7 OF THIS WARRANT.
Dated: May 30, 2001
PEOPLEPC EUROPE N.V.
AMENDED AND RESTATED WARRANT
THIS CERTIFIES THAT, for value received, Softbank Capital Partners LP
("Softbank") is entitled to subscribe for and purchase, subject to the
provisions and upon the terms and conditions hereinafter set forth, 2,380,952
shares (subject to adjustment in accordance with Section 4 hereof) of the fully
paid and nonassessable Series A Preferred Stock of PeoplePC Europe N.V., a
company organized under the laws of the Netherlands (the "Company") for an
aggregate cost of $7,142,857 (the "Warrant Price"). As used herein, the term
"Date of Grant" shall mean the date of the closing of the Company's sale of
shares to @viso, and the term "Shares" shall mean the Series A Preferred Stock,
par value ten euro cents (EUR 0.10) per share, to be issued by the Company
hereunder and any stock into or for which any such Series A Preferred Stock may
hereafter be converted or exchanged (including upon the automatic conversion of
the Series A Preferred Stock into Class A Common Stock). Capitalized terms used
but not defined herein shall have the meanings ascribed to them in that certain
Put Option Agreement dated May 30, 2001 by and among Softbank and certain
affiliates of Softbank, @viso Limited ("@viso") PeoplePC, Inc. and the Company.
1. Term. The purchase right represented by this Warrant may not be
exercised after the 60-day period beginning on February 20, 2006 (the
"Expiration Date").
2. Method of Exercise; Payment; Issuance of New Warrant. Subject to Section
1 hereof, the purchase right represented by this Warrant may and must be
exercised by the holder hereof, in whole, at or before the time that (a) @viso
exercises (i) its Primary Put Option pursuant to Section 2.1 of the Put Option
Agreement, (ii) its Secondary Put Option pursuant to Section 2.2 of the Put
Option Agreement or (iii) its Put Option pursuant to Section 2.4(a) of the Put
Option Agreement, or (b) the Company requires @viso to exercise its Put Option
pursuant to Section 2.4(b) of the Put Option Agreement. The Company shall give
Softbank written notice of @viso's intention to exercise its Put Option pursuant
to Sections 2.1, 2.2 or 2.4(a) of the Put Option Agreement or of the
Company's intention to exercise its right pursuant to Section 2.4(b) of the Put
Option Agreement. If Softbank does not deliver or cause to be delivered a Notice
of Exercise to the Company (in the form attached to the Put Option Agreement as
Exhibit A) of its election to exercise its Put Option set forth in Section 3 of
the Put Option Agreement within five business days of the receipt of such notice
from the Company (which Notice of Exercise shall be accompanied by the
surrendered Warrant with payment of the Warrant Price to the Company in the
amount of $7,142,857 and an executed notice of exercise of such warrant in the
form attached hereto as Exhibit A), then the Warrant shall be cancelled and
shall not be exercisable. In the case of a Partial Exercise of the Secondary Put
Option by @viso pursuant to Section 2.3 of the Put Option Agreement, Softbank
may exercise a Proportional Number of Warrant Shares. The Company shall give
Softbank written notice of @viso's intention to exercise its Put Option pursuant
to Section 2.3 of the Put Option Agreement. If Softbank does not deliver or
cause to be delivered a Notice of Exercise to the Company (in the form attached
to the Put Option Agreement as Exhibit A) of its election to exercise its Put
Option set forth in Section 3 of the Put Option Agreement as to a Proportional
Number of Warrant Shares within five business days of the receipt of such notice
from the Company (which Notice of Exercise shall be accompanied by the
surrendered Warrant with payment of the proportional Warrant Price to the
Company and an executed notice of exercise of such warrant in the form attached
hereto as Exhibit A), then the Warrant shall be cancelled as to the Proportional
Number of Warrant Shares and shall not be exercisable as to that number of
shares, such that the total number of Shares issuable upon a future exercise of
the Warrant shall be reduced by the Proportional Number of Warrant Shares. The
person or persons in whose name(s) any certificate(s) representing the Shares
shall be issuable upon exercise of this Warrant shall be deemed to have become
the holder(s) of record of, and shall be treated for all purposes as the record
holder(s) of, the shares represented thereby (and such shares shall be deemed to
have been issued) immediately prior to the close of business on the date or
dates upon which this Warrant is exercised. In the event of any exercise of the
rights represented by this Warrant, certificates for the shares of stock so
purchased shall be delivered to the holder hereof as soon as possible and in any
event within thirty (30) days after such exercise.
3. Stock Fully Paid; Reservation of Shares. All Shares that may be issued
upon the exercise of the rights represented by this Warrant will, upon issuance
pursuant to the terms and conditions herein, be fully paid and nonassessable,
and free from all taxes, liens and charges with respect to the issue thereof.
During the period within which this Warrant remains outstanding and unexpired,
the Company will at all times have authorized, and reserved for the purpose of
the issue upon exercise of the purchase rights evidenced by this Warrant, a
sufficient number of shares of its capital stock to provide for the exercise of
the rights represented by this Warrant.
4. Adjustment of Number of Shares. The number and kind of securities
purchasable upon the exercise of this Warrant shall be subject to adjustment
from time to time upon the occurrence of certain events, as follows:
(a) Subdivision or Combination of Shares. If the Company at any time
while this Warrant remains outstanding and unexpired shall subdivide or combine
its outstanding shares of capital stock into which this Warrant is exercisable,
the number of shares for which the Warrant is exercisable shall be
proportionately increased in the case of a subdivision or decreased in the case
of a combination, effective at the close of business on the date the subdivision
or combination becomes effective.
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(b) Reclassification. In case of any reclassification or change of
securities of the class issuable upon exercise of this Warrant (other than a
change in par value, or from par value to no par value, or from no par value to
par value, or as a result of a subdivision or combination), the Company shall
duly execute and deliver to the holder of this Warrant a new Warrant (in form
and substance reasonably satisfactory to the holder of this Warrant), so that
the holder of this Warrant shall have the right to receive, in lieu of the
Shares theretofore issuable upon exercise of this Warrant, the kind and amount
of shares of stock, other securities, money and property receivable upon such
reclassification or change by a holder of the number of Shares then purchasable
under this Warrant. Such new Warrant shall provide for adjustments that shall be
as nearly equivalent as may be practicable to the adjustments provided for in
this Section 4. The provisions of this subparagraph (a) shall similarly apply to
successive reclassifications or changes.
(c) Adjustment for Reorganization, Consolidation, Merger, etc. In case
of any consolidation or merger of the Company with or into any other
corporation, entity or person, or any other corporate reorganization, in which
the Company shall not be the continuing or surviving entity of such
consolidation, merger or reorganization (a "Reorganization"), then, in each
case, the holder of this Warrant, on exercise hereof at any time after the
consummation or effective date of such Reorganization, shall receive, upon
exercise of this Warrant and in lieu of the Shares immediately theretofore
purchasable and receivable upon the exercise of the rights represented hereby,
such number, amount and like kind of shares of stock, securities, cash or assets
as may be issued or payable pursuant to the terms of the Reorganization with
respect to or in exchange for the number of Shares immediately theretofore
purchasable and receivable upon the exercise of the rights represented hereby as
if such number of Shares were outstanding immediately prior to the
Reorganization, and in any such case appropriate provision shall be made with
respect to the rights and interest of the holders to the end that the provisions
hereof (including, without limitation, provisions for adjustments of the number
of Shares purchasable and receivable upon the exercise of this Warrant) shall
thereafter be applicable, as nearly as may be practicable, in relation to any
shares of stock or securities thereafter deliverable upon the exercise hereof.
5. Notice of Adjustments. Whenever the number of Shares purchasable
hereunder shall be adjusted pursuant to Section 4 hereof, the Company shall make
a certificate signed by its chief financial officer setting forth, in reasonable
detail, the event requiring the adjustment, the amount of the adjustment, the
method by which such adjustment was calculated, and the number of Shares
purchasable hereunder after giving effect to such adjustment, and shall cause
copies of such certificate to be mailed (without regard to Section 13 hereof, by
first class mail, postage prepaid) to the holder of this Warrant at such
holder's last known address.
6. Fractional Shares. No fractional Shares will be issued in connection
with any exercise hereunder. Fractions of 0.5 or more shall be rounded up and
fractions of 0.5 shall be rounded down to the next round figure.
7. Compliance with Applicable Securities Laws; Disposition of Warrant or
Shares.
(a) Compliance with Applicable Securities Laws. The holder of this
Warrant, by acceptance hereof, agrees that this Warrant, and the Shares to be
issued upon exercise hereof are being acquired for investment and that such
holder will not offer, sell or otherwise dispose of this
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Warrant, or any Shares except under circumstances which will not result in a
violation of applicable securities laws. Upon exercise of this Warrant, unless
the Shares being acquired are registered or qualified for sale under any
applicable securities laws or an exemption from such qualification or
registration is available, the holder hereof shall confirm in writing that the
Shares so purchased are being acquired for investment and not with a view toward
distribution or resale in violation of applicable securities laws and shall
confirm such other matters related thereto as may be reasonably requested by the
Company.
(b) Disposition of Warrant or Shares.
(i) The holder hereof may not assign, transfer or otherwise
dispose of this Warrant without the prior written consent of the Company;
provided, however, that the holder may transfer this Warrant to an affiliate
thereof which is not a competitor of the Company as determined by the Company's
Board of Directors.
(ii) The holder hereof agrees that in connection with a public
offering by PeoplePC, Inc., such holder shall not sell or otherwise transfer any
securities of PeoplePC, Inc. for 90 days following the effective date of such
public offering; provided, however, that all directors officers and holders of
2% or more of the capital stock of PeoplePC, Inc. also agree to the same
restrictions on transfer after the effective date of such public offering.
8. Rights as Stockholders; Information. No holder of this Warrant, as such,
shall be entitled to vote or receive dividends or be deemed the holder of
Shares, nor shall anything contained herein be construed to confer upon the
holder of this Warrant, as such, any of the rights of a stockholder of the
Company or any right to vote for the election of directors or upon any matter
submitted to stockholders at any meeting thereof, or to receive notice of
meetings, or to receive dividends or subscription rights or otherwise until this
Warrant shall have been exercised and the Shares purchasable upon the exercise
hereof shall have become deliverable, as provided herein.
9. Termination. If, for any reason other than the Company's failure to act
in good faith, the Company is not the exclusive vendor worldwide for the
corporate connectivity program of Vivendi S.A., then Softbank agrees that this
Warrant shall cease to be exercisable and shall become null and void in all
respects. For purposes of this Section 9 only, the term Company shall mean
PeoplePC, Inc. or any of its subsidiaries, including PeoplePC Europe N.V.
10. Representations and Warranties. The Company represents and warrants to
the holder of this Warrant as follows:
(a) This Warrant has been duly authorized and executed by the Company
and is a valid and binding obligation of the Company enforceable in accordance
with its terms, subject to laws of general application relating to bankruptcy,
insolvency and the relief of debtors and the rules of law or principles at
equity governing specific performance, injunctive relief and other equitable
remedies;
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(b) The Shares have been duly authorized and reserved for issuance by
the Company and, when issued in accordance with the terms hereof will be validly
issued, fully paid and non-assessable;
(c) The rights, preferences, privileges and restrictions granted to or
imposed upon the Shares and the holders thereof are as set forth in the Articles
of Association of the Company;
(d) The execution and delivery of this Warrant are not, and the
issuance of the Shares upon exercise of this Warrant in accordance with the
terms hereof will not be inconsistent with the Company's Articles of
Association, do not and will not contravene any law, governmental rule or
regulation, judgment or order applicable to the Company, and do not and will not
conflict with or contravene any provision of, or constitute a default under, any
indenture, mortgage, contract or other instrument of which the Company is a
party or by which it is bound or requires the consent or approval of, the giving
of notice to, the registration or filing with or the taking of any action in
respect of or by, any government authority or agency or other person, except for
the filing of notices pursuant to federal, state and other national securities
laws, which filings will be effected by the time required thereby; and
(e) There are no actions, suits, audits, investigations or proceedings
pending or, to the knowledge of the Company, threatened against the Company in
any court or before any governmental commission, board or authority which, if
adversely determined, will have a material adverse effect on the ability of the
Company to perform its obligations under this Warrant.
11. Modification and Waiver. This Warrant and any provision hereof may be
changed, waived, discharged or terminated only by an instrument in writing
signed by the party against which enforcement of the same is sought.
12. Notices. Any notice, request, communication or other document required
or permitted to be given or delivered to the holder hereof or the Company shall
be delivered, or shall be sent by certified or registered mail, postage prepaid,
to each such holder at its address as shown on the books of the Company or to
the Company at the address indicated therefor on the signature page of this
Warrant.
13. Binding Effect on Successors. This Warrant shall be binding upon any
corporation succeeding the Company by merger, consolidation or acquisition of
all or substantially all of the Company's assets, and all of the obligations of
the Company relating to the Shares issuable upon the exercise or conversion of
this Warrant shall survive the exercise, conversion and termination of this
Warrant and all of the covenants and agreements of the Company shall inure to
the benefit of the successors and assigns of the holder hereof; provided that
the requirements of Section 7(b) above are satisfied.
14. Lost Warrants or Stock Certificates. The Company covenants to the
holder hereof that, upon receipt of evidence reasonably satisfactory to the
Company of the loss, theft, destruction or mutilation of this Warrant or any
stock certificate and, in the case of any such loss, theft or destruction, upon
receipt of an indemnity reasonably satisfactory to the Company, or in the case
of any such mutilation upon surrender and cancellation of such Warrant or stock
certificate, the
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Company will make and deliver a new Warrant or stock certificate, of like tenor,
in lieu of the lost, stolen, destroyed or mutilated Warrant or stock
certificate.
15. Descriptive Headings. The descriptive headings of the several
paragraphs of this Warrant are inserted for convenience only and do not
constitute a part of this Warrant. The language in this Warrant shall be
construed as to its fair meaning without regard to which party drafted this
Warrant.
16. Governing Law. This Warrant shall be construed and enforced in
accordance with, and the rights of the parties shall be governed by, the laws of
the State of Delaware.
17. Severability. The invalidity or unenforceability of any provision of
this Warrant in any jurisdiction shall not affect the validity or enforceability
of such provision in any other jurisdiction, or affect any other provision of
this Warrant, which shall remain in full force and effect.
18. Entire Agreement; Modification. This Warrant constitutes the entire
agreement between the parties pertaining to the subject matter contained in it
and supersedes all prior and contemporaneous agreements, representations, and
undertakings of the parties, whether oral or written, with respect to such
subject matter.
PEOPLEPC EUROPE N.V.
signature illegible
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EXHIBIT A
NOTICE OF EXERCISE
To: PeoplePC Europe N.V. (the "Company")
1. The undersigned hereby elects to purchase __________ shares of
Series A Preferred Stock of the Company pursuant to the terms of the attached
Warrant, and tenders herewith payment of the purchase price of such shares in
full.
2. Please issue a certificate or certificates representing said shares
in the name of the undersigned or in such other name or names as are specified
below:
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(NAME)
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(ADDRESS)
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(ADDRESS)
3. The undersigned represents that the aforesaid shares being acquired
for the account of the undersigned for investment and not with a view to, or for
resale in connection with, the distribution thereof and that the undersigned has
no present intention of distributing or reselling such shares, all except as in
compliance with applicable securities laws.
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(DATE)
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(SIGNATURE)
