EXHIBIT 99.7
eMACHINES, INC.
XXXXX XXXXXXXXX EMPLOYMENT AGREEMENT
This Agreement is entered into as of April 1, 2001 by and between
eMachines, Inc. (the "Company"), and Xxxxx Xxxxxxxxx (the "Executive").
WHEREAS, the Company desires to retain Executive in the capacity of
Executive Vice President, Strategy & Business Development of the Company for a
period of two (2) years and Executive desires to accept such employment; and
WHEREAS, the parties desire and agree to enter into an employment
relationship by means of this Agreement;
NOW, THEREFORE, in consideration of the promises and mutual covenants
herein contained, and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, it is mutually covenanted and
agreed by and among the parties as follows:
1. Title and Duties.
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(a) Executive Vice President, Strategy & Business Development.
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As of the Effective Date and during the Employment Term (as defined below),
Executive will serve as Executive Vice President, Strategy & Business
Development of the Company. Executive will render such business and professional
services in the performance of his duties, as shall reasonably be assigned to
him by the Company's Chief Executive Officer (the "CEO"). During the Employment
Term, Executive will perform his duties faithfully and to the best of his
ability and will devote his full business efforts and time to the Company. For
the duration of the Employment Term, Executive agrees not to actively engage in
any other employment, occupation or consulting activity for any direct or
indirect remuneration without the prior approval of the Board of Directors of
the Company (the "Board"). During the Employment Term, Executive's compensation
shall be as provided in Section 3(a).
2. Employment Term.
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(a) Employment Term. Executive's employment as Executive Vice
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President, Strategy & Business Development of the Company pursuant to this
Agreement shall commence on April 1, 2001 (the "Effective Date") and shall
continue until the earlier of March 31, 2003 (the "Full-Term Date") and such
time as terminated as provided herein (the "Employment Term").
(b) Termination by Company For Cause. The Company may terminate
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Executive's employment for "Cause" (as defined herein) prior to the end of the
Employment Term by giving Executive thirty (30) days advance notice in writing.
No compensation or benefits will be paid or provided to Executive under this
Agreement on account of termination for Cause, or for periods following the date
when such termination of employment is effective. Upon termination of
Executive's employment with the Company for Cause, Executive's rights under any
applicable
benefit plans shall be determined under the provisions of those plans. Any
waiver of notice shall be valid only if it is made in writing and expressly
refers to the applicable notice requirement of this subparagraph 2(b).
(c) Termination by Company For Other Than Cause or by Executive
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for Good Reason. The Company may terminate Executive's employment for other
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than Cause prior to the end of the Employment Term by giving Executive thirty
(30) days advance notice in writing and Executive may terminate his employment
for Good Reason (as defined below) prior to the end of the Employment Term (the
date on which either of such terminations takes effect, referred to as the
"Part-Term Date"). On the Part-Term Date, (i) Executive's rights under any
applicable benefit plans shall be determined under the provisions of those
plans, (ii) Executive shall receive the lesser of: (A) the Base Salary for one
(1) year, and (B) the Base Salary from the date of termination through the Full-
Term Date, and (iii) the Company shall pay the Bonus Amount (as defined below)
in accordance with Section 3(c); provided, that the Bonus Amount has not
previously been paid pursuant to such section. For purposes of this Agreement,
"Good Reason" means (i) without the Executive's express written consent, a
significant reduction of the Executive's duties, position or responsibilities
relative to the Executive's duties, position, or responsibilities in effect
immediately prior to such reduction; provided, however, that a reduction in
duties, position or responsibilities solely by virtue of the Company being
acquired and made part of a larger entity (as, for example, when the Chief
Financial Officer of a company remains as such following a change of control of
the Company but is not made the Chief Financial Officer of the acquiring
company) shall not constitute Good Reason; (ii) without the Executive's express
written consent, a significant reduction by the Company in the Base Salary of
the Executive as in effect immediately prior to such reduction; or (iii) without
the Executive's express written consent, a material reduction by the Company in
the kind or level of employee benefits (other than salary and bonus) to which
the Executive is entitled immediately prior to such reduction with the result
that the Executive's overall benefits package (other than salary and bonus) is
significantly reduced; provided, however, that a written notice and an
opportunity to cure such breach shall be afforded the Company, in such event
Good Reason shall exist only if the Company shall fail to substantially cure the
breach within thirty (30) days after written notice. Any waiver of notice shall
be valid only if it is made in writing and expressly refers to the applicable
notice requirement of this subparagraph 2(b).
(d) Disability. The Company may terminate Executive's service
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during the Employment Term for Disability by giving Executive thirty (30) days
advance notice in writing. For all purposes under this Agreement, "Disability"
shall mean that Executive, at the time notice is given, has been unable to
substantially perform his duties under this Agreement for a period of not less
than six (6) consecutive months as the result of his incapacity due to physical
or mental illness. In the event that Executive resumes the performance of
substantially all of his duties hereunder before the termination of his
employment under this subparagraph (d) becomes effective, the notice of
termination shall automatically be deemed to have been revoked. No compensation
or benefits will be paid or provided to Executive under this Agreement on
account of termination for Disability, or for periods following the date when
such a termination of employment is effective. Upon termination of Executive's
employment with the Company because of Disability, Executive's rights under the
benefit plans of the Company shall be determined under the provisions of those
plans.
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(e) Termination by Executive for Other than Good Reason.
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Executive may terminate his employment during the Employment Term for any reason
other than Good Reason prior to the end of the Employment Term by giving Company
sixty (60) days advance notice in writing ("Executive Termination"). Upon an
Executive Termination, Executive shall only be entitled to Executive's rights
under any applicable benefit plans, which shall be determined under the
provisions of those plans. Any waiver of notice shall be valid only if it is
made in writing and expressly refers to the applicable notice requirement of
this subparagraph 2(e).
(f) Death. Executive's service under this Agreement shall
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terminate in the event of his death. The Company shall have no obligation to pay
or provide any compensation or benefits under this Agreement on account of
Executive's death, or for periods following Executive's death. Executive's
rights under the benefit plans of the Company in the event of Executive's death
shall be determined under the provisions of those plans.
(g) Cause. For all purposes under this Agreement, "Cause" shall
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mean (i) misappropriation or embezzlement of Company funds or an act of fraud
upon the Company made by Executive in connection with Executive's
responsibilities as an employee under this Agreement, (ii) Executive's
conviction of, or plea of nolo contendere to, a felony, (iii) Executive's gross
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misconduct in connection with Executive's responsibilities as an employee under
this Agreement, or (iv) Executive's continued failure to comply with directives
of the CEO; (v) Executive's failure to substantially perform his duties under
this Agreement, as shall reasonably be assigned to him by the CEO pursuant to
Section 1(a) of this Agreement, but only after Executive has received a written
demand for performance from the CEO which sets forth the factual basis for the
CEO's belief that Executive has not substantially performed his duties and after
Executive has had thirty (30) days after receipt of such written demand to cure
such nonperformance, if such nonperformance can reasonably be cured within such
time frame; and (vi) Executive's breach of any material provision of this
Agreement, but only after Executive has received a written notice of such breach
from the CEO and after Executive has had thirty (30) days after receipt of such
written notice to cure such breach, if such breach can reasonably be cured
within such time frame. No compensation, benefits or other severance will be
paid or provided to Executive under this Agreement on account of a termination
for Cause for periods following the date when such a termination of employment
is effective. Executive's rights under the benefit plans of the Company in the
event of a termination for Cause shall be determined under the provisions of
those plans. In the event Executive is provided with written notice as provided
for in (v) and (vi) above, such notice shall also be the notice that is required
by Section 2(b). Executive shall be deemed terminated for Cause at the end of
any cure period for any curable nonperformance or breach, as applicable, that is
not so cured within the required period of time or on the date thirty (30) days
from the receipt of such notice if the nonperformance or breach, as applicable,
is not curable.
3. Compensation.
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(a) Compensation During the Employment Term. During the
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Employment Term, the Company will pay Executive as compensation for his services
a base salary at the annualized rate of $400,000 (the "Base Salary"). The Base
Salary shall be paid periodically in accordance with the Company's normal
payroll practices and be subject to the usual, required withholding. If
Executive
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is terminated by the Company for Cause, Disability or death or if Executive
terminates his employment for other than Good Reason, during the Employment
Term, then Executive shall receive the Base Salary through the date of
termination and shall not be entitled to receive any part of the Bonus Amount.
(b) Option. Promptly following Executive's beginning to provide
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services to the Company under this Agreement, Executive will be granted a stock
option to purchase 2,000,000 shares of the Company's Common Stock, subject to
adjustment for stock splits, dividends, recombinations, reclassifications and
the like, at an exercise price equal to the fair market value of such Common
Stock on the date such option is granted (the "Option") and, provided that the
Company's Common Stock is traded on a National Securities Exchange (as defined
below) or is reported through the Nasdaq National Market or Nasdaq SmallCap
Market, the Company shall use its reasonable efforts after such grant is made,
within a reasonable time, to register the shares subject to the Option on a Form
S-8 Registration Statement under the Securities Act of 1933, as amended (the
"Securities Act"). The Option shall vest as to 50% of the shares subject to the
Option on each anniversary from the Effective Date, subject to Executive's
continued employment with the Company on each such date. In all other respects,
the Option will be subject to the terms, definitions and provisions of a stock
option agreement by and between Executive and the Company, the form of which is
attached hereto as Exhibit A (the "Option Agreement"), to be entered into after
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the Board meeting at which such option is granted.
(c) Bonus. The Company shall pay Executive a bonus equal to
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either (the "Bonus Amount"): (x) if Executive is employed by the Company on the
Full-Term Date or in the Event of a Liquidation Event $1,000,000, or (y) if
Executive is terminated by the Company for other than Cause prior to the Full-
Term Date or if Executive terminates this Agreement for Good Reason prior to the
Full-Term Date, $1,000,000 multiplied by a fraction equal to the number of
months that have elapsed between the Effective Date and the Part-Term Date
(rounded down to the nearest whole month) divided by 24, in each case subject to
the following conditions and as adjusted as set forth below:
(i) If on the Full-Term Date or on the Part-Term Date, as
applicable, the Company's Common Stock is not traded on a national securities
exchange (a "National Securities Exchange") registered under Section 6 of the
Securities Exchange Act of 1934, as amended, and is not reported through either
the Nasdaq National Market or Nasdaq SmallCap Market, then the Company shall, on
such date, pay Executive the Bonus Amount; provided, however, that the Bonus
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Amount shall be reduced by an amount equal to the product of (A) the number of
shares of Common Stock subject to the Option that the Executive has sold prior
to the Full-Term Date or the Part-Term Date, as applicable, and (B) the
difference between the sales price of such Common Stock and the per share
exercise price of the Option; provided, further, that payment of the Bonus
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Amount is subject to Executive's continued employment with the Company on the
Full-Term Date or the Part-Term Date, as applicable, and that no Bonus Amount
shall be paid to Executive pursuant to this Section 3(c)(i) if a Liquidation
Event (as defined below) occurs prior to the Full-Term Date or the Part-Term
Date, as applicable.
(ii) If (A) on the Full-Term Date or the Part-Term Date,
as applicable, the Company's Common Stock is traded on a National Securities
Exchange or is reported through the
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Nasdaq National Market or Nasdaq SmallCap Market and (B) the average of the
closing prices of the Company's Common Stock as quoted in the Wall Street
Journal (the "Average Closing Price") over the 30-day period ending three days
prior to the Full-Term Date or the Part-Term Date, as applicable, is less than
the Target Price (as defined below), then the Company shall pay Executive the
Bonus Amount; provided, however, that if the Average Closing Price exceeds the
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per share exercise price of the Option, the Bonus Amount shall be reduced by an
amount equal to the product of (w) the maximum number of shares of Common Stock
subject to the Option that can be sold by Executive on such date under the
volume limitations set forth in Rule 144(e) promulgated under the Securities
Act, and (x) the difference between the Average Closing Price and the per share
exercise price of the Option; provided, further, that the Bonus Amount shall be
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reduced by an amount equal to the product of (y) the number of shares of Common
Stock subject to the Option that the Executive has sold prior to the Full-Term
Date or the Part-Term Date, as applicable, and (z) the difference between the
sales price of such Common Stock and the per share exercise price of the Option;
provided, further, that payment of the Bonus Amount is subject to Executive's
continued employment with the Company on the Full-Term Date or the Part-Term
Date, as applicable, and that no Bonus Amount shall be paid to Executive
pursuant to this Section 3(c)(ii) if a Liquidation Event occurs prior to the
Full-Term Date or the Part-Term Date, as applicable. For purposes of this
Section 3(c)(ii), the "Target Price" shall mean an amount equal to the sum of
$0.50 and the per share exercise price of the Option. The calculations in this
Section 3(c)(ii) shall be proportionately adjusted to reflect the effect of any
stock split, reverse stock split, stock dividend, stock distribution,
combination or reclassification of the Company's Common Stock.
(iii) In the event of a Liquidation Event prior to the
Full-Term Date or the Part-Term Date, as applicable, then Executive shall, on
the date of the Liquidation Event, be entitled to receive the Bonus Amount less:
(A) an amount equal to the difference between (w) the fair market value of all
cash and Liquid Securities that the Executive received or would be entitled to
receive, directly or indirectly, in the future as a result of the Liquidation
Event for the Option and the shares of Common Stock issued or issuable upon the
exercise of the Option (determined as if the Option was fully vested at such
date and including any distribution on such shares reasonably anticipated as a
result, directly or indirectly, of such Liquidation Event) and (x) the sum of
the total exercise price paid by Executive for the shares of Common Stock
subject to the Option that are then held by Executive and the total exercise
price that would be required to be paid to exercise such Option to the extent
such Option has not been exercised (determined as if the Option was fully vested
at such date), and (B) an amount equal to the product of (y) the number of
shares of Common Stock subject to the Option that the Executive has sold prior
to the Liquidation Event and (z) the difference between the sales price of such
Common Stock and the per share exercise price of the Option; provided, however,
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that payment of the Bonus Amount is subject to Executive's continued employment
with the Company on the date of the Liquidation Event. For purposes of this
Section 3(c), a "Liquidation Event" shall include any event of liquidation,
dissolution, or winding up of the Company, either voluntary or involuntary;
provided, that none of the foregoing shall be deemed a Liquidation Event where
the event has been preceded by a sale of all or substantially all of the assets
or business of the Company and the successor corporation has assumed all of the
obligations under this Agreement. For purposes of this Section 3(c), "Liquid
Securities" shall include securities traded on a National Securities Exchange or
reported through the Nasdaq National Market or Nasdaq SmallCap Market, or other
similar Non-U.S. stock exchange.
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(iv) In no event shall the amounts paid to Executive under
this Section 3(c) exceed the Bonus Amount, as adjusted pursuant to the
applicable subparagraph above, and in no event shall Executive be required to
pay the Company any amounts under this Section 3(c). The Bonus Amount shall only
be paid once and then only pursuant to the first to occur of the conditions set
forth in the preceding subparagraphs 3(c)(i), 3(c)(ii) and 3(c)(iii). Once paid
the Employee shall not be entitled to any further amounts pursuant to this
Section 3(c).
(d) Bonus if Appointed to CEO. If on or prior to the Full-Term
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Date the Board approves Executive's appointment as Chief Executive Officer of
the Company, then within a reasonable time following such approval, the Company
shall pay to Executive a bonus equal to $1,000,000, less applicable withholding
taxes (the "CEO Bonus"). If Executive terminates his employment with the Company
for any reason or if the Company terminates Executive's employment with the
Company for Cause, death or Disability within twenty-four (24) months of the
date Executive officially begins serving as the Company's Chief Executive
Officer (the "CEO Effective Date"), then Executive shall repay a pro rata
portion of the CEO Bonus determined by multiplying the amount of the CEO Bonus
by a fraction equal to the number of months remaining between the date of such
termination and the second anniversary of the CEO Effective Date over 24. If
Executive is terminated without Cause, then Executive shall have no obligation
to pay back the CEO Bonus.
(e) Escrow. Within thirty (30) days of the Effective Date, the
Company shall place $1,000,000 (the "Escrow Amount") in an escrow account (the
"Escrow"). The Escrow Amount shall be used to secure payment to Executive of the
Bonus Amount provided for under Section 3(c). The Company shall be entitled to
(A) all interest earned on the Escrow Amount while it is in the Escrow and (B)
any portion of the Escrow Amount not paid to Executive pursuant to Section 3(c).
4. Employee Benefits, Place of Employment and Office.
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(a) Employee Benefits. During the Employment Term, Executive
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will be entitled to participate in the employee benefit plans currently and
hereafter maintained by the Company of general applicability to other senior
executives of the Company, including, without limitation, the Company's group
medical, dental, vision, disability, life insurance, and flexible-spending
account plans. To bridge the period of time before Executive becomes eligible
under the Company's insurance plan, the Company shall reimburse Executive's
reasonable premiums paid for coverage from his existing benefit plan from the
Effective Date until Executive becomes eligible under the Company's insurance
plan. The Company reserves the right to cancel or change the benefit plans and
programs it offers to its employees at any time.
(b) Place of Employment and Office. During the Employment Term,
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Executive's services shall be performed at the Company's principal executive
offices.
5. Vacation. Executive will be entitled to paid vacation in accordance
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with the Company's vacation policy generally applicable to all employees of the
Company, Executive will use his best, good-faith judgment to determine the
appropriate timing and duration of each specific vacation, which such timing and
duration of each specific vacation shall be reasonable in light of the facts and
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circumstances relating to the Company's business and Executive's duties and
obligations to the Company under this Agreement or otherwise that exist at the
time Executive desires to take such a vacation.
6. Expenses. The Company will reimburse Executive for reasonable travel,
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entertainment or other expenses incurred by Executive in the furtherance of or
in connection with the performance of Executive's duties hereunder, in
accordance with the Company's expense reimbursement policy as in effect from
time to time.
7. Non-Solicit. Executive covenants and agrees with the Company that
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during his service to the Company and for a period expiring one (1) year after
the date of termination of such services, he will not solicit any of the
Company's then-current employees to terminate their employment with the Company
or to become employed by any firm, company or other business enterprise with
which Executive may then be connected.
8. Living Expenses/Apartment and Car Expenses.
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(a) Expenses While Family Resides in San Francisco. For ninety
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(90) days from the Effective Date, and subject to Executive's continued
employment with the Company, the Company shall reimburse Executive for all of
Executive's reasonable expenses while his family resides in San Francisco,
California and Executive resides in Orange County, California. Executive's
reasonable expenses during this period shall include, but not be limited to, the
cost of commuting to and from work while living in Orange County, living
expenses (including rent or equivalent hotel costs for Executive), Executive's
meals, use of Company vehicle(s) and weekly air transportation to and from San
Francisco, California. The air transportation provision shall also include
airfare for Executive's wife to travel to and from Orange County, California
when Executive chooses not to travel to San Francisco, California. Such
reasonable expenses shall be reimbursed within a reasonable time after Executive
provides the Company with receipts evidencing such expenses.
9. Moving Expenses. During the Employment Term, the Company shall
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reimburse Executive for all reasonable moving expenses incurred by Executive in
his relocation from his current residence in San Francisco, California to Orange
County, California. Such reasonable expenses shall be reimbursed within a
reasonable time after Executive provides the Company with receipts evidencing
the costs of such move.
10. Confidential Information. Executive agrees to enter into the Company's
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standard Employment, Confidential Information and Invention Assignment Agreement
(the "Confidentiality Agreement") upon commencing employment hereunder.
11. Assignment. This Agreement will be binding upon and inure to the
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benefit of (a) the heirs, executors and legal representatives of Executive upon
Executive's death and (b) any successor of the Company. Any such successor of
the Company will be deemed substituted for the Company
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under the terms of this Agreement for all purposes. For this purpose,
"successor" means any person, firm, corporation or other business entity which
at any time, whether by purchase, merger or otherwise, directly or indirectly
acquires all or substantially all of the assets or business of the Company. None
of the rights of Executive to receive any form of compensation payable pursuant
to this Agreement may be assigned or transferred except by will or the laws of
descent and distribution. Any other attempted assignment, transfer, conveyance
or other disposition of Executive's right to compensation or other benefits will
be null and void.
12. Notices. All notices, requests, demands and other communications
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called for hereunder shall be in writing and shall be deemed given (i) on the
date of delivery if delivered personally, (ii) one (1) day after being sent by a
well established commercial overnight service, or (iii) four (4) days after
being mailed by registered or certified mail, return receipt requested, prepaid
and addressed to the parties or their successors at the following addresses, or
at such other addresses as the parties may later designate in writing:
If to the Company:
eMachines, Inc.
00000 Xxxxxx Xxxx, Xxxxx 000
Xxxxxx, Xxxxxxxxxx 00000
Attn: General Counsel
If to Executive:
at the last residential address known by the Company.
13. Severability. In the event that any provision hereof becomes or is
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declared by a court of competent jurisdiction to be illegal, unenforceable or
void, this Agreement will continue in full force and effect without said
provision.
14. Attorneys' Fees and Costs. The Company will reimburse Executive for
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reasonable attorneys' fees and costs incurred by Executive in reviewing and
revising this Employment Agreement, not to exceed $5,000. The reimbursement by
the Company shall occur within thirty (30) days of the Effective Date.
15. Arbitration.
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(a) General. In consideration of Executive's service to the
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Company, its promise to arbitrate all employment related disputes and
Executive's receipt of the compensation, pay raises and other benefits paid to
Executive by the Company, at present and in the future, Executive agrees that
any and all controversies, claims, or disputes with anyone (including the
Company and any employee, officer, director, shareholder or benefit plan of the
Company in their capacity as such or otherwise) arising out of, relating to, or
resulting from Executive's service to the Company under this Agreement or
otherwise or the termination of Executive's service with the Company, including
any breach of this Agreement, shall be subject to binding arbitration under the
Arbitration Rules set
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forth in California Code of Civil Procedure Section 1280 through 1294.2,
including Section 1283.05 (the "Rules") and pursuant to California law. Disputes
which Executive agrees to arbitrate, and thereby agrees to waive any right to a
trial by jury, include any statutory claims under state or federal law,
including, but not limited to, claims under Title VII of the Civil Rights Act of
1964, the Americans With Disabilities Act of 1990, the Age Discrimination in
Employment Act of 1967, the Older Workers Benefit Protection Act, the California
Fair Employment and Housing Act, the California Labor Code, claims of
harassment, discrimination or wrongful termination and any statutory claims.
Executive further understands that this Agreement to arbitrate also applies to
any disputes that the Company may have with Executive.
(b) Procedure. Executive agrees that any arbitration will be
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administered by the American Arbitration Association ("AAA") and that a neutral
arbitrator will be selected in a manner consistent with its National Rules for
the Resolution of Employment Disputes. The arbitration proceedings will allow
for discovery according to the rules set forth in the National Rules for the
Resolution of Employment Disputes or California Code of Civil Procedure.
Executive agrees that the arbitrator shall have the power to decide any motions
brought by any party to the arbitration, including motions for summary judgment
and/or adjudication and motions to dismiss and demurrers, prior to any
arbitration hearing. Executive agrees that the arbitrator shall issue a written
decision on the merits. Executive also agrees that the arbitrator shall have the
power to award any remedies, including attorneys' fees and costs, available
under applicable law. Executive understands the Company will pay for any
administrative or hearing fees charged by the arbitrator or AAA except that
Executive shall pay the first $200.00 of any filing fees associated with any
arbitration Executive initiates. Executive agrees that the arbitrator shall
administer and conduct any arbitration in a manner consistent with the Rules and
that to the extent that the AAA's National Rules for the Resolution of
Employment Disputes conflict with the Rules, the Rules shall take precedence.
(c) Remedy. Except as provided by the Rules, arbitration shall
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be the sole, exclusive and final remedy for any dispute between Executive and
the Company. Accordingly, except as provided for by the Rules, neither Executive
nor the Company will be permitted to pursue court action regarding claims that
are subject to arbitration. Notwithstanding anything to the contrary in this
Agreement, the arbitrator will not have the authority to disregard or refuse to
enforce any lawful Company policy, and the arbitrator shall not order or require
the Company to adopt a policy not otherwise required by law which the Company
has not adopted.
(d) Availability of Injunctive Relief. In addition to the right
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under the Rules to petition the court for provisional relief, Executive agrees
that any party may also petition the court for injunctive relief where either
party alleges or claims a violation of this Agreement or the Confidentiality
Agreement or any other agreement regarding trade secrets, confidential
information, nonsolicitation or Labor Code (S)2870. In the event either party
seeks injunctive relief, the prevailing party shall be entitled to recover
reasonable costs and attorneys fees.
(e) Administrative Relief. Executive understands that this
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Agreement does not prohibit Executive from pursuing an administrative claim with
a local, state or federal administrative body such as the Department of Fair
Employment and Housing, the Equal Employment Opportunity
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Commission or the workers' compensation board. This Agreement does, however,
preclude Executive from pursuing court action regarding any such claim.
(f) Voluntary Nature of Agreement. Executive acknowledges and
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agrees that Executive is executing this Agreement voluntarily and without any
duress or undue influence by the Company or anyone else. Executive further
acknowledges and agrees that Executive has carefully read this Agreement and
that Executive has asked any questions needed for Executive to understand the
terms, consequences and binding effect of this Agreement and fully understand
it, including that Executive is waiving Executive's right to a jury trial.
Finally, Executive agrees that Executive has been provided an opportunity to
seek the advice of an attorney of Executive's choice before signing this
Agreement.
16. Integration. This Agreement, together with any documents incorporated
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herein by reference, including the Option Agreement and the Confidentiality
Agreement, represent the entire agreement and understanding between the parties
as to the subject matter herein and supersedes all prior or contemporaneous
agreements whether written or oral. No waiver, alteration, or modification of
any of the provisions of this Agreement will be binding unless in writing and
signed by duly authorized representatives of the parties hereto.
17. Tax Withholding. All payments made pursuant to this Agreement will be
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subject to withholding of applicable taxes.
18. Governing Law. This letter shall be governed by the internal
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substantive laws, but not the choice of law rules, of the State of California.
Executive hereby agrees to exclusive personal jurisdiction and venue in the
state and federal courts of the State of California.
19. Waiver of Breach. The Company's waiver of a breach of any provision of
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this Agreement by Executive shall not operate or be construed as a waiver of any
subsequent breach by Executive. No waiver shall be valid unless made in writing
and signed by an authorized officer of the Company.
20. Acknowledgment. Executive acknowledges that he has had the opportunity
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to discuss this matter with and obtain advice from his private attorney, has had
sufficient time to, and has carefully read and fully understands all the
provisions of this Agreement, and is knowingly and voluntarily entering into
this Agreement.
[Signatures appear on the next page]
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IN WITNESS WHEREOF, each of the parties has executed this Agreement, in the
case of the Company by their duly authorized officers, as of the day and year
first above written.
eMACHINES, INC.
By: /s/ XXXXX XXXXXX Date: 4/17/01
______________________________ ___________________________
Name:
______________________________
Title:
______________________________
XXXXX XXXXXXXXX
/s/ XXXXX XXXXXXXXX Date: 4/17/01
____________________________________ ___________________________
Xxxxx Xxxxxxxxx
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Exhibit A
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Form of Option Agreement
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