Exhibit 10.49
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 Peter Mor 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
Engineering and Operations – 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 Research and
Development and Operations – 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 $200,000.
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 25% 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 15
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
A-2
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 Co
