EXHIBIT 10.23
THIS WARRANT AND THE SHARES OF COMMON STOCK WHICH MAY BE PURCHASED UPON THE
EXERCISE OF THIS WARRANT HAVE BEEN ACQUIRED SOLELY FOR INVESTMENT AND HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR ANY
STATE SECURITIES LAWS. SUCH SECURITIES MAY NOT BE SOLD, OFFERED FOR SALE,
PLEDGED OR HYPOTHECATED IN THE ABSENCE OF SUCH REGISTRATION OR AN OPINION OF
COUNSEL SATISFACTORY TO THE COMPANY AND ITS COUNSEL THAT SUCH SALE, OFFER,
PLEDGE OR HYPOTHECATION IS EXEMPT FROM THE REGISTRATION AND PROSPECTUS DELIVERY
REQUIREMENTS OF THE ACT AND OF ANY APPLICABLE STATE SECURITIES LAWS.
THIS WARRANT AND THE SHARES ISSUABLE HEREUNDER ARE SUBJECT TO THE CONDITIONS
SPECIFIED IN THE AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT, DATED AS OF
AUGUST 18, 1999, AND ANY AMENDMENT THERETO OR RESTATEMENTS THEREOF (SUCH
AGREEMENT INCLUDING ANY SUCH AMENDMENT OR RESTATEMENTS, THE "AGREEMENT") AMONG
EMACHINES, INC. AND CERTAIN OTHER SIGNATORIES THERETO, AND NO TRANSFER OF THIS
WARRANT OR SUCH SHARES SHALL BE VALID OR EFFECTIVE UNTIL SUCH CONDITIONS HAVE
BEEN FULFILLED. THIS WARRANT AND THE SHARES ISSUABLE HEREUNDER ARE SUBJECT TO A
VOTING AGREEMENT CONTAINED IN THE AGREEMENT AND BY ACCEPTING ANY INTEREST IN
THIS WARRANT OR SUCH SHARES, THE PERSON ACCEPTING SUCH INTEREST SHALL BE DEEMED
TO AGREE TO AND SHALL BECOME BOUND BY ALL THE PROVISIONS OF THE AGREEMENT. UPON
THE FULFILLMENT OF CERTAIN OF SUCH CONDITIONS EMACHINES, INC. HAS AGREED TO
DELIVER TO THE HOLDER HEREOF A NEW WARRANT OR TO THE HOLDER THEREOF A NEW
CERTIFICATE FOR THE SHARES ISSUABLE HEREUNDER, AS APPLICABLE, IN EACH CASE NOT
BEARING THIS LEGEND, FOR THE WARRANT OR SUCH SHARES, AS THE CASE MAY BE,
REGISTERED IN THE NAME OF THE HOLDER HEREOF OR THEREOF. A COPY OF THE AGREEMENT
MAY BE OBTAINED AT NO COST BY WRITTEN REQUEST MADE BY THE HOLDER OF RECORD OF
THIS WARRANT OR OF THE SHARES ISSUABLE HEREUNDER TO THE SECRETARY OF EMACHINES,
INC
EMACHINES INC.
COMMON STOCK PURCHASE WARRANT
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No. 2 Void after August 18, 2004
THIS CERTIFIES THAT, for value received, America Online, Inc. (the
"Holder") is entitled to subscribe for and purchase the Formula Number of shares
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(as such number of shares shall be
adjusted pursuant to Section 3 hereof, thus adjusting the per share Exercise
Price) of the fully paid and nonassessable Common Stock, $0.0000125 par value
(the "Shares"), of eMachines, Inc., a Delaware corporation (the "Company"),
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at the aggregate exercise price of $8.875 million (the "Exercise Price"),
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subject to the provisions and upon the terms and conditions hereinafter set
forth. The "Formula Number" of shares shall mean $8.875 million divided by (i)
in the case of an initial public offering of Shares pursuant to a registration
statement on Form S-1, the greater of (A) the product of 1.25 and the per Share
offering price of the Shares in such offering and (B) $7.981, or (ii) in any
other case, $11.823.
1. Method of Exercise; Payment.
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(a) Cash Exercise. The purchase rights represented by this
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Warrant may be exercised by the Holder, in whole or in part, by the surrender of
this Warrant (with the notice of exercise form attached hereto as Exhibit A duly
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executed) at the principal office of the Company, and by the payment to the
Company, by certified, cashier's or other check acceptable to the Company or by
wire transfer to an account designated by the Company, of an amount equal to the
aggregate Exercise Price of the Shares being purchased.
(b) Net Issue Exercise. In lieu of exercising this Warrant, the
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Holder may elect to receive Shares equal to the value of this Warrant (or the
portion thereof being canceled) by surrender of this Warrant at the principal
office of the Company together with notice of such election, in which event the
Company shall issue to the Holder a number of Shares computed using the
following formula:
X = Y (A-B)
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A
Where X = the number of the Shares to be issued to the Holder.
Y = the number of the Shares purchasable under this Warrant.
A = the fair market value of one Share on the date of determination.
B = the per share Exercise Price (as adjusted to the date of such calculation).
(c) Fair Market Value. For purposes of this Section 1, the per
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share fair market value of the Shares shall mean:
(i) If the Company's Common Stock is publicly traded, the
per share fair market value of the Shares shall be the average of the closing
prices of the Common Stock as quoted on the Nasdaq National Market or the
principal exchange on which the Common Stock is listed, or if not so listed then
the fair market value shall be the average of the closing bid prices of the
Common Stock as published in The Wall Street Journal, in each case for the
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fifteen trading days ending five trading days prior to the date of determination
of fair market value;
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(ii) If the Company's Common Stock is not so publicly
traded, the per share fair market value of the Shares shall be such fair market
value as is determined in good faith by the Board of Directors of the Company
after taking into consideration factors it deems appropriate, including, without
limitation, recent sale and offer prices of the capital stock of the Company in
private transactions negotiated at arm's length.
(d) Stock Certificates. In the event of any exercise of the
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rights represented by this Warrant, certificates for the Shares so purchased
shall be delivered to the Holder within a reasonable time and, unless this
Warrant has been fully exercised or has expired, a new Warrant representing the
shares with respect to which this Warrant shall not have been exercised shall
also be issued to the Holder within such time.
2. Stock Fully Paid; Reservation of Shares. All of the Shares issuable
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upon the exercise of During the period within which the rights the rights
represented by this Warrant will, represented by this Warrant may be upon
issuance and receipt of the Exercise Price exercised, the Company shall at all
times therefor, be fully paid and nonassessable, and have authorized and
reserved for issuance free from all taxes, liens and charges with sufficient
shares of its Common Stock to respect to the issue thereof. provide for the
exercise of the rights represented by this Warrant.
3. Adjustments. Subject to the provisions of Section 11 hereof, the
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number and kind of securities purchasable upon the exercise of this Warrant and
the Exercise Price therefor shall be subject to adjustment from time to time
upon the occurrence of certain events, as follows:
(a) Reclassification. In the case of any reclassification or
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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), or in case
of any merger of the Company with or into another corporation (other than a
merger with another corporation in which the Company is the acquiring and the
surviving corporation and which does not result in any reclassification or
change of outstanding securities issuable upon exercise of this Warrant), or in
case of any sale of all or substantially all of the assets of the Company, the
Company, or such successor or purchasing corporation, as the case may be, 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), or the
Company shall make appropriate provision without the issuance of a new Warrant,
so that the holder of this Warrant shall have the right to receive, at a total
purchase price not to exceed that payable upon the exercise of the unexercised
portion of this Warrant, and in lieu of the shares of Common Stock theretofore
issuable upon exercise of this Warrant, (i) the kind and amount of shares of
stock, other securities, money and property receivable upon such
reclassification, change, merger or sale by a holder of the number of shares of
Common Stock then purchasable under this Warrant, or (ii) in the case of such a
merger or sale in which the consideration paid consists all or in part of assets
other than securities of the successor or purchasing corporation, at the option
of the Holder of this Warrant, the securities of the successor or purchasing
corporation having a value at the time of the transaction equivalent to the fair
market value of the Common Stock at the time of the transaction. The provisions
of this subparagraph (a) shall similarly apply to successive reclassifications,
changes, mergers and transfers.
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(b) Stock Splits, Dividends and Combinations. In the event that
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the Company shall at any time subdivide the outstanding shares of Common Stock
or shall issue a stock dividend on its outstanding shares of Common Stock the
number of Shares issuable upon exercise of this Warrant immediately prior to
such subdivision or to the issuance of such stock dividend shall be
proportionately increased, and the Exercise Price shall be proportionately
decreased, and in the event that the Company shall at any time combine the
outstanding shares of Common Stock the number of Shares issuable upon exercise
of this Warrant immediately prior to such combination shall be proportionately
decreased, and the Exercise Price shall be proportionately increased, effective
at the close of business on the date of such subdivision, stock dividend or
combination, as the case may be.
4. Notice of Adjustments. Whenever the number of Shares purchasable
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hereunder or the Exercise Price thereof shall be adjusted pursuant to Section 3
hereof, the Company shall provide notice to the Holder 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
and class of shares which may be purchased thereafter and the Exercise Price
therefor after giving effect to such adjustment.
5. Fractional Shares. This Warrant may not be exercised for fractional
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shares. In lieu of fractional shares the Company shall make a cash payment
therefor based upon the Exercise Price then in effect and the fair market value
of the shares then obtaining (calculated in accordance with Section 1(c) hereof
as if the shares were the Shares referred to in such Section).
6. Representations of the Company. The Company represents that all
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corporate actions on the part of the Company, its officers, directors and
shareholders necessary for the sale and issuance of the Shares pursuant hereto
and the performance of the Company's obligations hereunder were taken prior to
and are effective as of the effective date of this Warrant.
7. Representations and Warranties by the Holder. The Holder represents
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and warrants to the Company as follows:
(a) This Warrant and the Shares issuable upon exercise thereof
are being acquired for its own account, for investment and not with a view to,
or for resale in connection with, any distribution or public offering thereof
within the meaning of the Securities Act of 1933, as amended (the "Act").
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Upon exercise of this Warrant, the Holder shall, if so requested by the Company,
confirm in writing, in a form satisfactory to the Company, that the securities
issuable upon exercise of this Warrant are being acquired for investment and not
with a view toward distribution or resale.
(b) The Holder understands that the Warrant and the Shares have
not been registered under the Act by reason of their issuance in a transaction
exempt from the registration and prospectus delivery requirements of the Act
pursuant to Section 4(2) thereof, and that they must be held by the Holder
indefinitely, and that the Holder must therefore bear the economic risk of such
investment indefinitely, unless a subsequent disposition thereof is registered
under the Act or is exempted from such registration. The Holder further
understands that the Shares have not been qualified under the California
Securities Law of 1968 (the "California Law") by reason of their issuance
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in a transaction exempt from the qualification requirements of the California
Law pursuant
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to Section 25102(f) thereof, which exemption depends upon, among other things,
the bona fide nature of the Holder's investment intent expressed above.
(c) The Holder has such knowledge and experience in financial and
business matters that it is capable of evaluating the merits and risks of the
purchase of this Warrant and the Shares purchasable pursuant to the terms of
this Warrant and of protecting its interests in connection therewith.
(d) The Holder is able to bear the economic risk of the purchase
of the Shares pursuant to the terms of this Warrant.
8. Restrictive Legend.
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The Shares (unless registered under the Act) shall be stamped or
imprinted with a legend in substantially the following form:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR
INVESTMENT AND NOT WITH A VIEW TO, OR IN CONNECTION WITH, THE SALE
OR DISTRIBUTION THEREOF, AND HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED. SUCH SHARES MAY NOT BE SOLD OR
TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS THE
COMPANY RECEIVES AN OPINION OF COUNSEL REASONABLY ACCEPTABLE TO IT
STATING THAT SUCH SALE OR TRANSFER IS EXEMPT FROM THE REGISTRATION
AND PROSPECTUS DELIVERY REQUIREMENTS OF THE ACT.
THE SECURITIES REPRESENTED HEREBY ARE SUBJECT TO THE CONDITIONS
SPECIFIED IN THE AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT,
DATED AS OF AUGUST 18, 1999, AND ANY AMENDMENT THERETO OR
RESTATEMENTS THEREOF (SUCH AGREEMENT INCLUDING ANY SUCH AMENDMENT
OR RESTATEMENTS, THE "AGREEMENT") AMONG EMACHINES, INC. AND
CERTAIN OTHER SIGNATORIES THERETO, AND NO TRANSFER OF THESE
SECURITIES SHALL BE VALID OR EFFECTIVE UNTIL SUCH CONDITIONS HAVE
BEEN FULFILLED. THE SECURITIES REPRESENTED HEREBY ARE SUBJECT TO A
VOTING AGREEMENT CONTAINED IN THE AGREEMENT AND BY ACCEPTING ANY
INTEREST IN SUCH SECURITIES, THE PERSON ACCEPTING SUCH INTEREST
SHALL BE DEEMED TO AGREE TO AND SHALL BECOME BOUND BY ALL THE
PROVISIONS OF THE AGREEMENT. UPON THE FULFILLMENT OF CERTAIN OF
SUCH CONDITIONS EMACHINES, INC. HAS AGREED TO DELIVER TO THE
HOLDER HEREOF A NEW CERTIFICATE NOT BEARING THIS LEGEND FOR THE
SECURITIES REPRESENTED HEREBY REGISTERED IN THE NAME OF THE HOLDER
HEREOF. A COPY OF THE AGREEMENT MAY BE OBTAINED AT NO COST
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BY WRITTEN REQUEST MADE BY THE HOLDER OF RECORD OF THIS
CERTIFICATE TO THE SECRETARY OF EMACHINES, INC.
9. Restrictions Upon Transfer and Removal of Legend.
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(a) The Company need not register a transfer of this Warrant or
Shares bearing the restrictive legend set forth in Section 8 hereof, unless the
conditions specified in such legend are satisfied. The Company may also instruct
its transfer agent not to register the transfer of the Shares, unless one of the
conditions specified in the legend referred to in Section 8 hereof is satisfied.
(b) Notwithstanding the provisions of paragraph (a) above, no
opinion of counsel shall be necessary for a transfer without consideration by
any holder (i) if such holder is a partnership, to a partner or retired partner
of such partnership who retires after the date hereof or to the estate of any
such partner or retired partner, or (ii) if such holder is a corporation, to a
shareholder of such corporation, or to any other corporation under common
control, direct or indirect, with such holder.
(c) The holder agrees not to sell, make any short sale of, loan,
grant any option for the purchase of, or otherwise transfer or dispose of any
shares of Common Stock (or other securities) of the Company held by such holder
during a period of time determined by the Company and its underwriters (not to
exceed 180 days in the event of the Company's initial public offering and 90
days in the event of any other public offering) following the effective date of
a registration statement of the Company filed under the Securities Act, as
amended. The Company may impose stop-transfer instructions with respect to the
Common Stock (or other securities) subject to the foregoing restriction until
the end of said period.
10. Rights of Shareholders. No holder of this Warrant shall be entitled,
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as a Warrant holder, to vote or receive dividends or be deemed the holder of any
Shares or any other securities of the Company which may at any time be issuable
on the exercise hereof for any purpose, 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 shareholders at any meeting thereof,
or to give or withhold consent to any corporate action (whether upon any
recapitalization, issuance of stock, reclassification of stock, change of par
value, consolidation, merger, conveyance, or otherwise) or to receive notice of
meetings, or to receive dividends or subscription rights or otherwise until the
Warrant shall have been exercised and the Shares purchasable upon the exercise
hereof shall have become deliverable, as provided herein. The holder of this
Warrant will not be entitled to share in the assets of the Company in the event
of a liquidation, dissolution or the winding up of the Company.
11. Notices. All notices and other communications required or permitted
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hereunder shall be in writing, shall be effective when given, and shall in any
event be deemed to be given upon receipt or, if earlier, (a) five (5) days after
deposit with the U.S. Postal Service or other applicable postal service, if
delivered by first class mail, postage prepaid, (b) upon delivery, if delivered
by hand, (c) one business day after the business day of deposit with Federal
Express or similar overnight courier, freight prepaid or (d) one business day
after the business day of facsimile transmission, if
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delivered by facsimile transmission with copy by first class mail, postage
prepaid, and shall be addressed (i) if to the Holder, at the Holder's address as
set forth on the books of the Company, and (ii) if to the Company, at the
address of its principal corporate offices (attention: Xxxxxxx Xxxxxx, President
and CEO), with a copy to Xxxx X. Xxxx, Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, P.C.,
000 Xxxx Xxxx Xxxx, Xxxx Xxxx, Xxxxxxxxxx 00000 or at such other address as a
party may designate by ten days advance written notice to the other party
pursuant to the provisions above.
12. Registration Rights Agreement. The registration rights of the Holder
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(including Holders' successors) with respect to the stock underlying this
warrant will be the same as granted to the holders of the Company's Common
Stock.
[Rest of Page Intentionally Left Blank]
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13. Governing Law. This Warrant and all actions arising out of or in
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connection with this Agreement shall be governed by and construed in accordance
with the laws of the State of California, without regard to the conflicts of law
provisions of the State of California or of any other state.
Issued as of September 15, 1999.
EMACHINES, INC.
By: /s/ Xxxxx Xxxxxx
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Title: Chief Financial Officer
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EXHIBIT A
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NOTICE OF EXERCISE
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TO: eMachines, Inc.
00000 Xxxxxx Xxxx, Xxxxx 000
Xxxxxx, Xxxxxxxxxx 00000
Attention: President
1. The undersigned hereby elects to purchase __________ Shares of
eMachines, Inc. pursuant to the terms of the attached Warrant.
2. Method of Exercise (Please initial the applicable blank):
___ The undersigned elects to exercise the attached Warrant by means
of a cash payment, and tenders herewith or by concurrent wire
transfer payment in full for the purchase price of the shares
being purchased, together with all applicable transfer taxes, if
any.
___ The undersigned elects to exercise the attached Warrant by means
of the net exercise provisions of Section 1(b) of the Warrant.
3. Please issue a certificate or certificates representing said Shares in
the name of the undersigned or in such other name as is specified below:
_________________________________
(Name)
_________________________________
_________________________________
(Address)
4. The undersigned hereby represents and warrants that the aforesaid
Shares are 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 and all representations and warranties of the undersigned set forth
in Section 7 of the attached Warrant are true and correct as of the date hereof.
______________________________
(Signature)
Title:__________________________
____________________________
(Date)
