Exhibit 10.45
EMPLOYMENT
CONTRACT
FOCUS ENHANCEMENTS, INC., a Delaware
corporation (hereinafter referred to as “Employer”) and
Thomas M. Hamilton (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 October 18, 1996, and terminating on
October 17, 1997.
Automatic Renewal
Section 1.2.
After October 17, 1997, this
Agreement shall be renewed automatically for succeeding terms of
one (1) year (the “Succeeding Term”), subject to
earlier termination as provided in Section 6.1, unless one
party gives notice to the other at least thirty (30) days prior to
the expiration of any term of his or its intention not to
renew.
“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.
Employee shall serve as Vice
President of Research and Development of Employer. In such
capacity, Employee shall do and perform all services, acts or
things in accordance with the policies set by Employee’s
manager. Employee shall perform such services at Employer’s
secondary place of business in Beaverton, Oregon or at such other
locations as mutually agreed upon by Employer and
Employee.
Devotion to Employer’s
Business
Section 2.2.
a)
Employee shall devote his entire
productive time, ability and attention to the business of Employer
during the term of this Agreement.
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 Employer’s Board of Directors. However, the expenditure
of reasonable amounts of time for educational, 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)
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 term of
employment or at any time thereafter, secret or confidential
information of Employer (for purposes of this Section 2.3,
“Employer” shall include all subsidiaries of Employer).
Information and materials received in confidence from third parties
by Employee are 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
and constitutes confidential trade secrets that affect the
successful conduct of Employer’s business and its goodwill
(“Confidential Information”), and that any breach of
any term 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)
The names of Employer’s
vendors and suppliers;
iii)
The names of Employer’s
vendors and suppliers;
iv)
Costs of materials;
v)
The prices Employer obtains or has
obtained or for which it sells or has sold its products or
services;
vi)
Manufacturing and sales costs;
manufacturing processes;
vii)
Compensation paid to employees or
other terms of employment;
viii)
Employer’s past and projected
sales volumes;
ix)
Proposed new products;
x)
Enhancements of existing
products;
xi)
The existence of and contents of
contracts and licenses; and
xii)
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 or by generally treating such
information in such a manner that Employee should reasonably
believe it to be deemed confidential by Employer. Employee’s
obligations under this Section 2.3(a) shall not apply to
information which Employee can demonstrate is or has become
generally known other than through Employee’s act in
violation of this Agreement.
All 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 to Employer
upon termination of employment.
b)
During his employment hereunder,
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 produces, designs, provides, solicits orders
for, sells, distributes or markets products, goods, equipment, or
services that are directly or indirectly in competition in any
manner whatsoever with Employer’s products or
Employer’s business.
c)
During his employment hereunder,
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 his employment hereunder 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 engaged (as an employee, agent, independent contractor or
otherwise) by Employer to terminate his or her employment or
engagement for the purpose of employing such person in any
enterprise in which Employee is a member or 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 enforceable 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 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 the terms and covenants of it, and that doing so will not
violate the terms and conditions of any agreement between Employee
and 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 (i) inventions (and patent rights with respect
thereto), (ii) original works of authorship (including all
copyrights with respect thereto), (iii) developments, and
(iv) improvements or trade secrets which Employer 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 and which relate to
the business of Employer.
Employee acknowledges that all
original works of authorship relating to the business of Employer
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 of specific original
works of 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 term of this Agreement. 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 Employer shall compensate
Employee at a reasonable rate for time actually spent by Employee
at Employer’s request on such assistance after such
termination.
If Employer is unable for any reason
whatsoever, including Employee’s mental or physical
incapacity, to secure Employee’s signature to
