Exhibit 10.48
EXECUTIVE EMPLOYMENT
AGREEMENT
This EXECUTIVE EMPLOYMENT
AGREEMENT (“ Agreement ”) is made effective
as of the 24th day of February 2005 by and between Focus
Enhancements Inc , a Delaware corporation, with its principal
offices in Campbell, California (hereinafter “ Focus
” or the “ Company ”), and Michael Conway
an individual and a resident of California (“
Executive ”).
RECITALS
A.
Executive is currently employed by Focus and either (i) does
not have an employment agreement with the Company, or (ii) is
willing to terminate and supercede such employment agreement to
enter into this Agreement in consideration of the additional rights
and benefits set forth herein.
B.
Focus desires to enter into this Agreement on and pursuant to the
terms of this Agreement to secure the additional covenants of
Executive as set forth herein and to provide the additional rights
and benefits to Executive in consideration of Executive’s
obligations hereunder.
AGREEMENT
NOW, THEREFORE
, the parties, in consideration of
the foregoing Recitals, each of which is incorporated by this
reference as an essential term, the covenants, conditions and other
terms hereof, and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, agree as
follows:
1.
Employment . Focus shall employ Executive and Executive
accepts full time employment as Senior Vice President of Strategy
and Business Development – Systems Group for the term of this
Agreement and on the terms and conditions set forth
herein.
2.
Duties and Responsibilities . During the term of this
Agreement, Executive shall devote substantially all of his time,
energy and skills to performing the duties and responsibilities as
Senior Vice President of Corporate Strategy and Development –
Systems Group and such other duties as the Chief Executive Officer
or Board of Directors may require from time to time. Executive
shall work faithfully and to the best of his ability and efforts
promoting the business interests of Focus. Executive will discharge
his duties at all times in accordance with any and all policies of
Focus and will report to, and be subject to the direction of, the
Chief Executive Officer or President of Focus, except that it is
understood Executive shall also work independently with the Board
of Directors as required by the Board. Executive shall be
considered a key employee of the Company.
3.
Compensation . Executive’s base annual salary upon
signing this Agreement shall be $163,350. Executive’s
performance shall be reviewed annually thereafter. Adjustments in
salary may be made from time to time in the sole discretion of the
Board of Directors. Salary shall be paid in arrears in accordance
with Company’s standard pay policy.
4.
Bonus Compensation . Executive shall be eligible to earn
bonus compensation in each fiscal year ending December 31
during the term. Subject to the achievement of the goals
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identified in Exhibit A as
determined by Company in its reasonable discretion, the bonus
compensation shall be calculated and paid in accordance with
Exhibit A . Executive’s target bonus
compensation shall be 30% of Executive’s annual base salary,
in proportion of Executive’s period of employment during the
applicable year (measured on a 365 day/year basis).
Exhibit A shall be revised by the Company for
each such fiscal year during the term of this Agreement;
provided , however , once the Board of Directors
establishes a bonus compensation plan with respect to Executive for
any fiscal year, no revision shall thereafter occur without the
written consent of the Executive. All bonus payments shall be
verified against and payable one week following publication of the
Company’s quarterly earnings release or Form 10-K (Q).
The parties expressly contemplate that Exhibit A
will change from year to year. Each new
Exhibit A shall be attached hereto. To be
eligible for payment, Executive must be employed by Focus on the
date the bonus payment is due; provided , however ,
if Executive is not employed on the date the bonus is due because
of (i) Executive’s voluntary termination, or
(ii) Executive’s involuntary termination by Focus for
Cause, then the bonus will be paid but only in proportion to
Executive’s period of employment during the applicable year
in relation to a 365 day year. In addition, for purposes of this
provision, termination of employment due to Executive’s death
shall be deemed an involuntary termination without
Cause.
5.
Executive Benefits .
(a)
Vacation . Executive shall receive a minimum of 20 business
days of paid vacation and thereafter consistent with the
Company’s vacation policy, during each year of this Agreement
(pro rata). Executive may be absent from his employment for
vacation only at such times the Executive notifies the
Employer’s President and CEO of the planned vacation at least
10 (ten) days in advance. Unused vacation will carry over from one
year to the next but the maximum amount of vacation, which can
accrue (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.
(b)
Benefits . Executive shall be eligible to participate in any
and all benefit plans generally provided by the Company, on the
same basis as same are made available to other executives,
including health, disability and life insurance coverage should
Executive elect to participate in any such plans.
6.
Expenses . Focus shall reimburse Executive for all
reasonable business expenses incurred by Executive pursuant to
Company policies (as adopted from time to time); provided that
Executive complies with any established policy and procedure for
the reimbursement of such expenses, including, but not limited to,
submitting an appropriate expense report.
7.
Term and Termination .
(a)
Specified Period . The Initial Term of this Agreement shall
be one year starting on the Commencement Date. (“Initial
Term”)
(b)
Succeeding Term . This Agreement shall automatically renew
without lapse, after the Initial Term for additional one-year
periods (each a “Succeeding Term”), unless
(i) written notice of non renewal is given by Focus to
Executive at least thirty (30) days before such applicable
anniversary or (ii) unless earlier (a) terminated upon
the written
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mutual agreement of the Executive
and Focus, or (b) pursuant to the events and/or occurrences
set forth below. Collectively, the Initial Term and Succeeding Term
are referred to as the “Term.” This Agreement and
Executive’s employment may be terminated:
(i)
By Executive for “Good Reason” (as defined below) upon
thirty (30) days prior written notice to Focus;
(ii)
By Executive at any time without Good Reason upon fourteen (14)
days advance written notice;
(iii)
By Focus for “Cause” (as defined below) immediately
upon written notice to Executive;
(iv)
By Focus in the event of Executive’s “Disability”
(as defined below);
(v)
Automatically upon Executive’s death;
(vi)
By Focus at any time, with or without notice, as specified by
Focus, for any reason other than termination for Cause or
Disability (“without Cause”).
8.
Consequences of Termination .
(a)
Termination for Cause or Resignation Without Good Reason .
If (i) Executive’s employment is terminated by Focus for
“Cause” or (ii) Executive resigns without Good
Reason, then (x) Focus shall pay the Executive his base salary, as
described in Section 3 above, to the date of termination, and
commissions earned through the date of termination as defined by
the applicable commission plan then in effect and (y) Executive
shall not be entitled to any other salary, bonus compensation or
fringe benefits after the date of termination, except the right to
receive benefits which have become vested under any benefit plan or
to which Executive is entitled as a matter of law.
(b)
Resignation for Good Reason or Termination Without Cause .
If Executive (i) resigns his employment for Good Reason or
(ii) is terminated by Company without Cause, and
(iii) executes the Company’s standard release of claims
agreement, then, immediately following the date of
Executive’s termination of employment and the exhaustion of
any revocation period contained in said release, Company will
continue payment of Executive’s Salary (at the same rate
existing prior to the termination) for a period of six
(6) months (“the Severance Period”) pursuant to
Focus’ normal payroll practices. In addition, (i) Focus
shall either pay directly or reimburse Executive for premiums
incurred in connection with continuation of coverage under the
Company’s health, dental, disability and life insurance plans
to which Executive is entitled in accordance with applicable law
for the Severance Period and (ii) Focus shall pay Executive
all bonus compensation otherwise due for the applicable fiscal year
of termination, prorated to the date of termination of employment;
provided , however , such bonus compensation shall be
payable only in accordance with and at the times of the regularly
scheduled bonus compensation payment that Executive would have
otherwise been subject to prior to termination and (iii) any
and all unvested stock options and/or restricted stock
in
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Executive’s name shall
immediately become fully vested and exercisable, provided that,
regardless of the terms of any option or stock purchase agreement
between the Company and Executive, absent a separate signed written
agreement between Company and Executive which specifically
references this provision of this Agreement, no exercise shall
occur more than six months after such termination and in no event
after the expiration of such option. In the event of
Executive’s subsequent death after his termination by Focus
without Cause or by Executive or for Good Reason, Focus shall
continue to pay the same payments and benefits as to which
Executive was entitled at the date of his death to
Executive’s surviving spouse, or if Executive is unmarried at
the time, then to Executive’s estate.
(c)
Termination in the Event of Death or Disability . If
Executive’s employment terminates due to Executive’s
death or if Focus terminates Executive’s employment due to
Executive’s Disability, then Focus will pay Executive’s
salary to Executive or his legal representative for the remainder
of the month in which his employment is so terminated. In the
circumstance described in the immediately preceding sentence,
Executive, his estate or his qualified representative(s) will be
entitled to receive all applicable Disability and other benefits,
such as continued health or Disability coverage or life insurance
proceeds, provided in accordance with the terms and conditions of
any health, life, disability, or other Company benefit plans or in
accordance with applicable law. In addition, bonus compensation
shall be calculated and paid in the manner described in
Section 8(b) above.
(d)
Suspension of Payment . Notwithstanding anything herein to
the contrary, if Executive is in violation of any provision of
Section 9, 10, 11 or 12 below, Focus shall have no obligation
to make payment(s) under Section 8(b) of this Agreement
if Focus has determined in good faith that such a violation(s) has
occurred or is occurring. If it is later established through
arbitration or other judicial proceeding that no such violation
occurred, Focus shall agree to pay to Executive any such amount
withheld from or not paid during such period.
(e)
No Mitigation . Executive will be under no obligation to
mitigate damages by seeking other employment, and there will be no
offset against the amounts due Executive under this Agreement,
except as specifically provided in Section 8(d) above or
for any other claims which Focus may have against
Executive.
(f)
Change of Control . If (A) there is a “Change of
Control” of Focus, as defined in this Agreement, and
(B) (i) Executive is terminated by Focus for any reason
other than for “Cause,” or (ii) Executive
terminates his employment for “Good Reason,” in each
case within twelve (12) months of the date of such Change
of
