Exhibit 10.40
EMPLOYMENT AGREEMENT
("Agreement")
FOCUS Enhancements, Inc., a Delaware Corporation (hereinafter referred to as
"Employer") and Xxxxx Xxxxx (hereinafter referred to as "Employee"), in
consideration of the mutual promises made herein, agree as follows:
ARTICLE 1
TERM OF EMPLOYMENT
Specified Period
Section 1.1
Employer hereby employs Employee, and Employee hereby accepts
employment with Employer for the period beginning on the effective date of this
Agreement as set forth below (the "effective date") and terminating two years
after the effective date ("Initial Term").
Succeeding Term
Section 1.2
This Agreement shall extend on the end of the Initial Term and
annually thereafter at the annual anniversary date for an additional one-year
period (the "Succeeding Term"), unless terminated by either party for any reason
or not renewed upon written notice given by one party to the other party at
least thirty (30) days before such applicable anniversary date.
"Employment Term" Defined
Section 1.3
As used herein, the phrase "employment term" refers to the
entire period of employment of Employee by Employer hereunder, whether for the
periods provided above, or whether terminated earlier as hereinafter provided or
extended automatically or by mutual agreement between Employer and Employee.
ARTICLE 2
DUTIES AND OBLIGATIONS OF EMPLOYEE
General Duties
Section 2.1
As of the date set forth in Section 8.8, Employee shall serve
as Employer's President & Chief Executive Officer, and he shall also serve as a
member of Employer's Board of Directors. Prior to such date, Employee shall
continue to serve in his current capacity as Executive Vice-President working
under the direction of and reporting to Xxxxxxx D'Addio, the Company's current
President and Chief Executive Officer.
In his capacity as President and Chief Executive Officer,
Employee shall do and perform all services, acts or things in accordance with
the policies set by Employer's Board of Directors. Employee shall perform such
services primarily in Campbell, California, which shall serve as the Employer's
principal facility, except that the parties understand that temporary travel on
Employer's business to other sites shall be required. The parties may designate
another location for Employee to primarily perform his services; provided,
however, that Employee's permanent place of employment shall not be more than
fifty miles from Campbell, California absent Employee's written consent.
Devotion to Employer's Business
Section 2.2
(a) Employee shall devote substantially all his productive
time, ability and attention to the business of Employer during the employment
term.
(b) Employee shall not engage in any other business duties or
pursuits whatsoever, or directly or indirectly render any services of a
business, commercial or professional nature to any other person or organization,
whether for compensation or otherwise, without the prior written consent of the
Board of Directors except for (1) boards of directors of private companies on
which Employee currently serves and (2) other boards of directors to which
Employee shall not devote more than 16 hours of service per month (measured on
an annual basis). However, the expenditure of reasonable amounts of time for
education, charitable or professional activities shall not be deemed a breach of
this Agreement if those activities do not materially interfere with the services
required under this Agreement.
(c) In addition to Employee's providing occasional service as
a member of the Board(s) of Directors as provided above, this Agreement shall
not be interpreted to prohibit Employee from making passive personal investments
or conducting private business affairs if those activities do not materially
interfere with the services required under this Agreement.
Confidential Information; Tangible Property; Competitive Activities
Section 2.3
(a) Employee shall hold in confidence and not use or disclose
to any person or entity without the express written authorization of Employer,
either during the employment term or any time thereafter, secret or confidential
information of Employer. Information and materials received in confidence from
third parties by Employee with respect to the performance of his duties for
Employer is included within the meaning of this section. If any confidential
information described below is sought by legal process, Employee will promptly
notify Employer and will cooperate with Employer in preserving its
confidentiality in connection with any legal proceeding.
The parties hereto hereby stipulate that, to the extent it is
not known publicly, the following information is important, material and has
independent economic value (actual or potential) from not being generally known
to others who could obtain economic value from its disclosure or use
("Confidential Information"), and that any breach of any terms of this Section
2.3 is a material breach of this Agreement:
(i) The names, buying habits and practices of Employer's
customers or prospective customers;
(ii) Employer's marketing methods and related data;
(iii) The names of Employer's vendors and suppliers;
(iv) Cost of materials / services;
(v) The prices Employer obtains or has obtained or for
which it sells or has sold its products or services;
(vi) Production costs;
(vii) Compensation paid to employees or other terms of
employment;
(viii) Employer's past and projected sales volumes;
(ix) Proposed new products / services;
(x) Enhancements of existing products / services; and
(xi) Any additional information deemed by Employer to be
confidential by marking or stamping "Confidential" or
similar words on the cover of such information, by
advising Employee orally or in writing that certain
information is confidential.
All software code, methodologies, models, samples, tools,
machinery, equipment, notes, books, correspondence, drawings and other written,
graphical or electromagnetic records relating to any of the products of Employer
or relating to any of the Confidential Information of Employer which Employee
shall prepare, use, construct,
observe, possess, or control shall be and shall remain the sole property of
Employer and shall be returned by Employee upon termination of employment.
(b) During the employment term, Employee shall not, directly
or indirectly, either as an employee, consultant, agent, principal, partner,
stockholder (except in a publicly held company), corporate officer, director, or
in any other individual or representative capacity, engage or participate in any
business that is in competition in any manner whatsoever with the then business
of Employer.
(c) During the employment term, Employee agrees that Employee
will not undertake planning for or organization of any business activity
competitive with Employer's business, or combine or conspire with other
employees or representatives of Employer's business for the purpose of
organizing any competitive business activity.
(d) During the employment term and for two (2) years
thereafter, Employee agrees that he will not directly or indirectly, or by
action in concert with others, induce or influence (or seek to induce or
influence) any person who is then engaged (as an employee, agent, independent
contractor, or otherwise) by Employer to terminate his employment or engagement
for the purpose of employing such person in any enterprise in which Employee is
a member of Management or has a material interest.
(e) Covenants of this Section 2.3 shall be construed as
separate covenants covering their subject matter in each of the separate
counties and states in the United States in which Employer transacts its
business. To the extent that any covenant shall be judicially unenforceable in
any one or more of said counties or states, said covenants shall not be affected
with respect to each other county and state; each covenant with respect to each
other county and state being construed as severable and independent.
(f) Employee represents and warrants that Employee is free to
enter into this Agreement and to perform each of its terms and covenants, and
that doing so will not violate the terms or conditions of any other agreement
between Employee and any third party.
Inventions and Original Works
Section 2.4
(a) Employee agrees that he will promptly make full written
disclosure to Employer, will hold in trust for the sole right and benefit of
Employer, and hereby assigns to Employer all of his right, title and interest in
and to any and all inventions (and patent rights with respect thereto), original
works of authorship relating to the business of FOCUS Enhancements (including
all copyrights with respect thereto), developments, improvements or trade
secrets which Employee may solely or jointly conceive or develop or reduce to
practice, or cause to be conceived or developed or reduced to practice, during
the course of performing his duties under this Agreement.
(b) Employee acknowledges that all original works of
authorship relating to the business of FOCUS Enhancements which are made by him
(solely or jointly with others) within the scope of his duties under this
Agreement and which are protectable by copyrights are "works made for hire" as
that term is defined in the United States Copyright Act (17 U.S.C.A., Section
101), and that Employee is an employee as defined under that Act. Employee
further agrees from time to time to execute written transfers to Employer of
ownership or specific original works or authorship (and all copyrights therein)
made by Employee (solely or jointly with others) which may, despite the
preceding sentence, be deemed by a court of law not to be "works made for hire"
in such form as is acceptable to Employer in its reasonable discretion.
Maintenance of Records
Section 2.5
Employee agrees to keep and maintain adequate and current
written records of all inventions, original works of authorship, trade secrets
developed or made by him (solely or jointly with others) during the employment
term. The records will be in the form of notes, sketches, drawings and other
formats that may be specified by Employer. The records will be available to and
remain the sole property of Employer at all times.
Obtaining Letters Patent and Copyright Registration
Section 2.6
Employee agrees to assist Employer to obtain United States or
foreign letters patent, and copyright registrations (as well as any transfers of
ownership thereof) covering inventions and original works of authorship assigned
hereunder to Employer. Such obligation shall continue beyond the termination of
this Agreement, but after such termination Employer shall compensate Employee at
a reasonable rate for time actually spent by Employee at Employer's request on
such assistance.
If Employer is unable for any reason whatsoever, including
Employee's mental or physical incapacity to secure Employee's signature to apply
for or to pursue any application for any United States or foreign letters,
patent or copyright registrations (or any document transferring ownership
thereof) covering inventions or original works or authorship assigned to
Employer under this Agreement, Employee hereby irrevocably designates and
appoints Employer and its duly authorized officers and agents as Employee's
agent and attorney-in-fact to act for and in his behalf and stead to execute and
file any such applications and documents and to do all other lawfully permitted
acts to further the prosecution and issuance of letters patent or copyright
registrations or transfers thereof with the same legal force and effect as if
executed by Employee. This appointment is coupled with an interest in and to the
inventions and works of authorship and shall survive Employee's death or
disability. Employee hereby waives and quitclaims to Employer any and all claims
of any nature whatsoever which Employee now or may hereafter have for
infringement of any patents or copyrights resulting from or relating to any such
application for letters, patent or copyright registrations assigned hereunder to
Employer.
Article 3
OBLIGATIONS OF EMPLOYER
General Description
Section 3.1
Employer shall provide Employee with the compensation,
incentives and benefits specified in Section 4 of this Agreement.
Office and Staff
Section 3.2
Employer shall provide Employee with a private office, office
and technical equipment, supplies and other facilities, equipment and services
suitable to Employee's position and adequate for the performance of his duties.
Article 4
COMPENSATION OF EMPLOYEE
Annual Salary
Section 4.1
As compensation for his services hereunder, Employee shall be
paid at a base salary rate of $190,000 (one hundred ninety thousand dollars) in
the first year of the Initial Term. For the second year of the Initial Term,
Employer shall pay Employee at a base salary rate of $200,000 (two hundred
thousand dollars). Salary shall be paid in equal installments not less
frequently than once per month.
Bonus Compensation and Relocation Expenses Reimbursement
Section 4.2
(a) In addition to his regular base salary, Employee shall be
entitled to participate in an incentive bonus plan to earn up to an additional
$110,000 per year. $55,000 (fifty five thousand dollars) of this bonus amount
shall be based upon the Employer's quarterly revenue growth year over year;
provided that no revenue attributable to any existing written agreement as of
the effective date between Employer and its major undisclosed OEM (contracted
with in June 2001) shall be included in any revenue calculations. From the
effective date of this Agreement until
December 31, 2003, the bonus rate will be 1.34% of the quarterly revenue growth
year over year. From the effective date of this Agreement until December 31,
2003, up to an additional $55,000 (fifty five thousand dollars) in bonus amount
shall be paid based upon the Employer's quarterly cash flow provided by
operations (as calculated using the Company's 10-Q and 10-K filings) as follows,
starting in the first full quarter beginning after the effective date: if more
than $25,000 and less than $100,000 in cash flow is provided by operations, this
will result in a bonus payment of $6,000; if more than $100,000 and less than
$200,000 in cash flow is provided by operations, this will result in a bonus
payment of $8,500; if more than $200,000 and less than $500,000 in cash flow is
provided by operations, this will result in a bonus payment of $13,500; if more
than $500,000 and less than $750,000 in cash flow is provided by operations,
this will result in a bonus payment of $20,000; if more than $750,000 in cash
flow is provided by operations, this will result in a bonus payment of $25,000.
(For illustrative purposes see table below.)
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If quarterly cash flows from operations are: Bonus Payment
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Greater than $25,000 but less than $100,000 $6,000
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Greater than $100,000 but less than $200,000 $8,500
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Greater than $200,000 but less than $500,000 $13,500
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Greater than $500,000 but less than $750,000 $20,000
---------------------------------------------------- ----------------------
Greater than $750,000 $25,000
---------------------------------------------------- ----------------------
From January 1, 2004 through the termination of this Agreement
or until otherwise agreed to by the Employee and the Board of Directors
(excluding Employee), whichever is first, the bonus plan described above
(Section 4.2 (a)) shall remain in effect except that, if any change is made in
calculating the bonus, Employee shall receive a minimum guaranteed bonus of
$6,875 (six thousand eight hundred seventy five dollars) per quarter under each
bonus criteria that is changed. (Bonus criteria are defined as (i) quarterly
revenue growth and (ii) quarterly increases in cash flow provided by
operations.) No change to any bonus criteria shall be effective unless agreed by
Employee and the Board of Directors (excluding Employee) at least 60 (sixty)
days prior to the start of a quarter.
(b) Employer shall reimburse Employee for all relocation
expenses reasonably incurred in moving Employee's household and family from the
greater Boston, Massachusetts area up to a maximum of $85,000 (eighty-five
thousand dollars). Relocation costs include reasonable temporary family and
personal living expenses in California, transportation, lodging and living
expenses while moving and commission costs associated with the sale of
Employee's current home in the greater Boston, Massachusetts area. ("Temporary
family and personal living expenses" as used in the above sentence shall not be
for more than 6 weeks and shall be paid only during the period Employee and his
family have moved to California from the greater Boston Massachusetts area but
Employee has not yet sold his home in the greater Boston, Massachusetts area.)
(c) If Employer terminates Employee's employment in the
Initial Term other than for Cause as set forth below in Section 6.3, Employer
shall pay Employee the reasonable costs to move his family and household to the
greater Boston, Massachusetts area. If the Employee does not elect to return to
the Boston area within a six-month window from such termination without Cause,
then the Employer is not obligated to pay any additional remuneration to the
Employee for relocation.
(d) If the Employee elects to terminate his employment during
the Initial Term, the he is obligated to reimburse the Employer for a prorated
portion of the initial relocation costs.
Tax Withholding
Section 4.3
Employer shall have the right to deduct or withhold from the
compensation due to Employee hereunder any and all sums required for federal
income and social security taxes and all state or local taxes now applicable or
that may be enacted and become applicable in the future, for which withholding
is required by law.
Non Qualified Stock Options
Section 4.4
Employee shall be granted Non Qualified Stock Options to
purchase 350,000 shares of Employer's Common Stock under Employer's Available
Stock Option Plans, said grant to be made on the effective date by the
Employer's Board of Directors. Said Options shall be exercisable at the fair
market value on the day immediately prior to the effective date, shall vest in
equal installments at the rate of one-thirty-sixth (1/36) per month thereafter
over three (3) years, and shall expire at the longer of (1) five (5) years from
the date of grant or (2) if permitted thereunder, ten years from the date of
grant. The Company shall request the approval of an adequate number of stock
options at the next Shareholder Meeting to grant to Employee the 150,000 stock
options immediately following that meeting.
Article 5
EMPLOYEE BENEFITS
Annual Vacation
Section 5.1
Employee shall be entitled to 20 business days of paid
vacation during each year of this Agreement. Employee may be absent from his
employment for vacation only at such times the Employee notifies at a minimum of
10 (ten) days in advance the Employer's Board of Directors Compensation
Committee of the planned vacation. Unused vacation will carry over from one year
to the next but the maximum amount of vacation, which can be accrued (unused) at
any one time, shall not exceed 20 business days. Unused vacation will not be
paid in the form of cash, except upon termination of employment.
Benefits
Section 5.2
Employee shall be eligible to participate in any and all
benefit plans provided by Employer, on the same basis as same are made available
to other employees, including health, disability and life insurance coverage
should Employee elect to participate in any such plans.
Business Expenses
Section 5.3
Employer shall reimburse Employee for all appropriate expenses
for travel and entertainment by Employee for legitimate business purposes,
provided that they are approved in writing by the Chief Financial Officer of the
Employer and provided that Employee furnishes to Employer adequate records and
documentary evidence for the substantiation of each such expenditure, as
required by the Internal Revenue Code of 1986, as amended.
Article 6
TERMINATION OF EMPLOYMENT
Termination
Section 6.1
Employer shall not terminate the Employee's employment except
as provided in Section 6.3 and/or 6.4. Employee's employment hereunder may be
terminated by Employee for any reason, without further obligation or liability,
except as expressly provided herein.
Resignation, Retirement, Death or Disability
Section 6.2
Employee's employment hereunder shall be terminated at any
time by Employee's resignation, or by Employee's retirement at or after
attainment of age sixty (60) at Employee's option ("Retirement"), death, or his
inability to perform his duties under this Agreement on a full-time basis for a
continuous period of ninety (90) days or more because of a physical or mental
illness ("Disability"). Employer shall not be liable for payment of bonus
compensation during any period of Disability, though salary and benefits shall
continue to be paid during such period.
Termination for Cause
Section 6.3
Employer may terminate Employee for Cause at any time. "Cause"
shall mean personal dishonesty, conflict of interest or breach of fiduciary duty
involving material personal or family profit, willfully engaging in conduct with
the purpose and effect of materially injuring Employer, the willful and
continued failure by the Employee to substantially perform his duties hereunder
in a reasonably competent manner expected of similarly situated executives for
comparable public companies in the high technology electronics industry. For
purposes of this Section 6.3, no act, or failure to act, on the Employee's part
shall be considered "willful" unless done, or omitted to be done, by him not in
good faith and without reasonable belief that his action or omission was in the
best interest of the Employer. Notwithstanding the foregoing, the Employee shall
not be terminated for Cause without (i) reasonable notice to the Employee
setting forth the reasons for the Employer's intention to terminate for Cause
and a reasonable period of time to cure such "Cause" if same is capable of being
cured within such period; (ii) if not capable of being so cured within a
reasonable period, an opportunity for the Employee, together with his counsel,
to be heard before the Board of Directors; and (iii) if clause (i) shall be
inapplicable, then, after the opportunity to be heard as set forth in clause
(ii), delivery to the Employee of a Notice of Termination as defined in Section
6.6 hereof from the Board finding that in the good faith opinion of the majority
of the Board of Directors, the Employee has engaged in conduct set forth above,
and specifying the particulars thereof in detail.
Termination Without Cause
Section 6.4
(a) Employer may terminate Employee without Cause at any time.
For the first year of the Initial Term, if Employer terminates Employee without
Cause, Employee shall receive, as severance pay for the remainder of the Initial
Term, all regular salary and benefits otherwise which would be due to him on the
same schedule as same were paid at the time of termination, as if he were still
employed through such Initial Term. If Employee is terminated without Cause or
this Agreement is allowed to expire without renewal during the second year of
the Initial Term or in the first Succeeding Year of the Initial Term, Employee
shall receive, as severance pay for the twelve months immediately after such
termination date, regular salary and benefits payable at the same rate he was
earning on the same schedule as such were paid at the time of termination. If
Employee is terminated without Cause or this Agreement is allowed to expire
without renewal during the Initial Term or in the first Succeeding Year after
the Initial Term, as described in this paragraph, any unvested stock options
issued to Employee which have not lapsed and which are not otherwise exercisable
shall vest, accelerate, and become immediately exercisable by Employee. If
Employee is terminated without Cause or this Agreement is allowed to expire
without renewal during any Succeeding Year which commences one or more year(s)
after the end of the Initial Term, then Employee shall receive as severance pay
for the twelve months immediately after such termination date regular salary and
benefits payable at the same rate he was earning and on the same schedule at the
time of termination. In the event of Employee's subsequent death after his
termination by Employer without Cause, Employer shall continue to pay the same
payments and benefits to Employee's surviving spouse, or if none, to Employee's
estate as Employee was entitled to at the date of his death.
Employee's employment hereunder may be terminated without
Cause upon ten (10) business days' notice for any reason.
(b) Employee may terminate this Agreement with or without
Cause for any reason at any time upon thirty (30) days prior notice. Upon such
termination by Employee, Employee shall receive all salary, benefits and options
vested through such termination date.
Expiration
Section 6.5
Unless otherwise renewed in accordance herewith, Employee's
employment shall end upon expiration of the employment term as provided in
Section(s) 1.1 and 1.2.
Notice for Termination
Section 6.6
Any termination of the Employee's employment (other than
termination by reason of death) shall be communicated by written Notice of
Termination to the other party. For purposes of this Agreement, a "Notice of
Termination" shall mean a notice which shall include the specific termination
provision in this Agreement relied upon, and shall set forth in reasonable
detail the facts and circumstances claimed to provide a basis for termination.
Date of Termination
Section 6.7
The "Date of Termination" shall be:
(a) if the Employee's employment is terminated by his death,
the date of his death;
(b) if the Employee's employment is terminated by reason of
Employee's Disability, thirty (30) days after Notice of Termination is given
(provided that the Employee shall not have returned to the performance of his
duties on a full-time basis during such thirty (30) day period);
(c) if the Employee's employment is terminated for Cause,
subject to Section 6.3 above, the date of the Notice of Termination is given or
after if so specified in such Notice of Termination;
(d) if the Employee's employment is terminated by either party
for any other reason than those set forth in clauses 6.7(a)-(c) above, the date
on which the Notice of Termination specifies.
Article 7
PAYMENTS TO EMPLOYEE UPON TERMINATION
Death, Disability or Retirement
Section 7.1
Upon Employee's Retirement, Death or Disability, all benefits
generally available to Employer's employees as of the date of such an event
shall be payable to Employee or Employee's estate without reduction, in
accordance with the terms of any plan, contract, understanding or arrangement
forming the basis for such payment. Employee shall be entitled to such other
payments as might arise from any other plan, contract, understanding or
arrangement between Employee and Employer at the time of any such event.
Termination for Cause or Resignation
Section 7.2
If Employer terminates Employee for Cause or Employee
voluntarily resigns for reasons other than constructive discharge, neither
Employer nor any affiliate shall have any further obligation to Employee under
this Agreement or otherwise, except to the extent provided in any other plan,
contract, understanding or arrangement, or as may be expressly required by law.
Article 8
GENERAL PROVISIONS
Notices
Section 8.1
Any notices to be given hereunder by either party to the other
shall be in writing and may be transmitted by personal delivery or by mail,
registered or certified, postage prepaid with return receipt requested. Mailed
notices shall be addressed to the parties at:
"Employee"
Xxxxx Xxxxx
00 Xxxxxxxx Xxxx
Xxxx, XX 00000
"Employer"
FOCUS Enhancements, Inc.
0000 Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxx 00000
Each party may change that address or addressee by written notice in accordance
with this section. All notices delivered shall be deemed communicated as of the
date of actual receipt.
Arbitration
Section 8.2
(a) Any controversy between Employer and Employee involving
the construction or application of any of the terms, provisions or conditions of
this Agreement or the breach thereof shall be settled by binding arbitration
before a single arbitrator selected by the American Arbitration Association, in
accordance with its then current commercial rules. Judgment upon the award
rendered by the arbitrator(s) may be entered in any court having jurisdiction.
Arbitration shall comply with and be governed by the provisions of the American
Arbitration Association, Commercial Division. No discovery shall be permitted in
such arbitration other than an exchange of documents, and the parties hereby
agree to limit the number of hearing days in arbitration to two (2) days. The
arbitrator shall issue a written decision listing findings of fact, reasons for
the decision, and conclusions of law in any arbitration. The arbitration award
shall be specifically enforceable.
(b) The cost of arbitration (including the prevailing party's
reasonable attorneys' fees) shall be borne by the non-prevailing party as
determined by the arbitrator or in such proportions as the arbitrator decides.
(c) Such arbitration and any litigation shall take place
solely in Santa Xxxxx County, California.
Attorneys' Fees and Costs
Section 8.3
If any action at law or in equity is necessary to enforce or interpret
the terms of this Agreement, the prevailing party shall be entitled to obtain
from the non-prevailing party, reasonable attorneys' fees, costs and necessary
disbursements in addition to any other relief to which that party may be
entitled. This provision shall be construed as applicable to this entire
Agreement.
Entire Agreement
Section 8.4
This Agreement supersedes, merges and voids any and all other
agreements, either oral or in writing, between the parties hereto with respect
to its subject matter and no other covenants and agreements between the parties
exist with respect thereto. Each party to this Agreement acknowledges that no
representations, inducements, promises or agreements, orally or otherwise, have
been made by any party, or anyone acting on behalf of any party, which are not
embodied herein, and that no other agreement, statement or promise not contained
in this Agreement shall be valid or binding on either party.
Modifications
Section 8.5
Any modification of this Agreement will be effective only if
it is in writing and signed by the Employee and properly authorized by
Employer's Board of Directors and signed by a representative thereof (who may,
but need not be, Chairman).
Effect of Waiver
Section 8.6
The failure of either party to insist on strict compliance with any of
the terms, covenants or conditions of this Agreement by the other party shall
not be deemed a waiver of that term, covenant or condition, nor shall any waiver
or relinquishment of any right or power at any one time or times be deemed a
waiver or relinquishment of that right or power for all or any other times. No
waiver shall be effective unless in a writing and signed by the person charged
with making such waiver
Partial Invalidity
Section 8.7
If any provision in this Agreement is held by a court of competent
jurisdiction to be invalid, void or unenforceable, the remaining provisions
shall nevertheless continue in full force without being impaired or invalidated
in any way.
Effective Date
Section 8.8
The effective date of this Agreement shall be the date it is signed by
both parties. However, Employee shall become President and Chief Executive
Officer and a member of the Company's Board of Directors on the earlier to occur
of (i) three (3) days after the Company's public announcement that purchase
orders for commercial quantities of units have been placed under the
above-described undisclosed June 2001 OEM agreement or (ii) September 30, 2002.
IN WITNESS WHEREOF, the parties have executed this Agreement on August 6, 2002,
at Campbell, California.
"Employer" "Employee"
FOCUS Enhancements, Inc.
By: /s/ Xxxxxxx D'Addio By: /s/ Xxxxx Xxxxx
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Xxxxxxx D'Addio Xxxxx Xxxxx
CEO
Xxxx Xxxxxxxx
Witness
