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 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 of 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 instead 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 elsewhere in this Agreement.


 


Section 3.2.


 


Employer shall provide Employee with a
private office, secretarial help, 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 a salary at the rate of One Hundred Ten Thousand Dollars
($110,000) per year from October 18, 1996, which salary may be increased
by Employer, from time to time, subject to applicable performance evaluations
and in accordance with Employer’s employee’s practice manual then in effect.
Salary shall be paid in equal installments not less frequently than once per
month.


 


Bonus Compensation


 


Section 4.2.


 


In addition to his regular salary, Employee
shall be entitled to participate in Employer’s Incentive Bonus Plan which, at Employer’s
discretion, may be modified to encompass certain product development incentives
specifically related to Employee’s job responsibilities and which modification
shall be based on mutual agreement between Employer and Employee.


 


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.


 


Stock Options


 


Section 4.4.


 


Employee shall be granted Incentive Stock
Options to purchase Eighty Thousand (80,000) shares of Employer’s Common Stock
under Employer’s 1992 Stock Option Plan, promptly after execution of this
Agreement. Said Options shall be exercisable at the fair-market value of such stock
on the date of Option grant, shall vest at the rate of one-third (1/3) per year
over three (3) years, and shall expire five (5) years from the date
of grant.


 

















 


ARTICLE 5.

EMPLOYEE BENEFITS


 


Annual Vacation


 


Section 5.1.


 


Each calendar year Employee shall be entitled to fifteen (15) days paid
vacation and an additional five (5) paid personal days to be utilized by
Employee for all non-vacation and non-holiday absences, including illness, from
his employment. Employee may be absent from his employment for vacation only at
such times as are approved by Employer’s manager. Unused vacation and personal
days shall not be carried over into the next year. Employee’s grant of vacation
and personal days for 1996 shall be pro-rated based upon the date on which he
commences employment with Employer.


 


Benefits


 


Section 5.2.


 


Employee shall be eligible to participate in any and all benefit plans
provided by Employer, 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 such expenditures are approved beforehand in writing by 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.


 


Employee’s employment hereunder may be terminated by Employee or
Employer as herein provided, 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”).


 


Termination for Cause


 


Section 6.3.


 


Employee’s
employment hereunder may be terminated for Cause. “Cause” shall mean personal
dishonesty, Incompetence (as defined herein), willful misconduct, 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, monetarily or otherwise, or the willful and continued
failure by the Employee to substantially perform his duties hereunder. “Incompetence”
shall mean gross negligence by Employee in the execution of his duties
contemplated by or assigned pursuant to this Agreement. For purposes of this
Paragraph, 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; (ii) an
opportunity for the Employee, together with his counsel, to be heard before the
Board; and (iii) delivery to the Employee of a Notice of Termination as
defined in Section 6.7 hereof from the Board finding that in the good
faith opinion of such Board, the Employee was guilty of conduct set forth
above, and specifying the particulars thereof in detail.


 


Termination without Cause


 


Section 6.4.


 


Employee’s
employment hereunder may be terminated without Cause upon thirty (30) days’
notice for any reason, subject to the payment of any amounts required by Section 7.3.
The parties hereto agree that, without the express written consent of Employee,
the following actions by Employer shall, at Employee’s option, constitute
termination without Cause:


 


(a) the
relocation of Employee’s principal place of employment to a location that is
more than thirty (30) miles from the principal place of employment immediately
prior to the date of effectiveness of the merger of FOCUS Acquisition Corp.
with and into TView, Inc.


 


(b) any material reduction by Employer
of the base salary set forth in Section 4.1 unless reductions comparable
in amount and duration are concurrently made for all other employees of
Employer with comparable responsibilities, comparable organizational level and
comparable title.


 

















 


Expiration


 


Section 6.5.


 


Employee’s employment hereunder shall be
terminated upon expiration of the Term of Employment as provided in Sections
1.1 and 1.2.


 


Notice of Termination


 


Section 6.6.


 


Any termination of the Employee’s employment
by the Employer or by the Employee (other than termination by reason of
resignation, retirement or death) shall be communicated by written Notice of
Termination to the other party hereto. 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 of the Employee’s employment under the provision so indicated.


 


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, the date the Notice of
Termination is given or after if so specified in such Notice of Termination;
and


 


d)            if
the Employee’s employment is terminated for any other reason, the date on which
a Notice of Termination is given;


 


provided that if within thirty (30) days after any Notice of
Termination is given, the party receiving such Notice of Termination notifies
the other party that a dispute exists concerning the termination, the Date of
Termination shall be the date on which the dispute is finally determined either
by arbitration award or by a final judgment, order or decree of a court of
competent jurisdiction (the time for appeal therefrom having expired and no
appeal having been perfected).


 

















 


ARTICLE 7.

PAYMENTS TO EMPLOYEE UPON TERMINATION


 


Death, Disability or Retirement


 


Section 7.1.


 


In the event of 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.


 


In the event Employee is terminated by Employer
for Cause or Employee resigns, neither Employer nor an 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.


 


Termination without Cause


 


Section 7.3.


 


Subject to other provisions in this Article 7
to the contrary, upon the occurrence of a Termination without Cause, Employer
shall:


 


a)             Pay
to Employee, as severance pay or liquidated damages, or both, a lump sum
payment (“Severance Payment”) equal to the annual salary described in Section 4.1
which is then in effect for Employee;


 


b)            To
the extent permissible under applicable law, including the Internal Revenue
Code of 1986, as amended, anti-discrimination standards which must be met to
retain favorable tax status of any employee benefit plan, contract or
arrangement, continue to provide to Employee during the unexpired term of this
Agreement, without renewal, those benefits to which employee is entitled to
immediately prior to the termination; and


 


c)             Cause
any stock options issued to Employee which have not lapsed and which are not
otherwise exercisable to be accelerated so as to be immediately exercisable by
Employee.


 

















 


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 shall be deemed to have been duly
given on the date of delivery if personally delivered, or delivered
electronically with electronic verification to the persons identified below, or
three (3) days after mailing if mailed by registered or certified mail,
postage prepaid with return receipt requested, addressed as follows:


 


“Employee”:
Thomas M. Hamilton

[Address Omitted]


 


 


“Employer”:
FOCUS ENHANCEMENTS, INC.

142 North Road

Sudbury, Massachusetts 01776

Attn: Thomas L. Massie, Chairman


 


Each party may change that address by written
notice in accordance with this section.


 


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 or otherwise arising out of this Agreement shall be settled
by arbitration, and 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.


 


b)            Employer
and Employee shall each appoint one person to hear and determine the dispute.
If the two persons so appointed are unable to agree, then those persons shall
select a third, impartial arbitrator whose decision shall be final and
conclusive upon both parties.


 


c)             The
cost of arbitration shall be borne by the losing party or in such proportions
as the arbitrators decide.


 


d)            Such
arbitration shall take such place in Portland, Oregon.


 

















 


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 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 the entire
contract.


 


Entire Agreement


 


Section 8.4.


 


This Agreement supersedes any and all other
agreements, either oral or in writing, between the parties hereto with respect
to the subject matter contained herein and contains all of the covenants and
agreements between the parties with respect to that subject matter. 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 two (2) officers
of Employer.


 


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.


 


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.


 

















 


Executed on October 18, 1996, at
Sudbury, Massachusetts.


 


	
   

  	
  “Employer”

  
	
   

  	
   

  
	
   

  	
  FOCUS ENHANCEMENTS INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Thomas L. Massie

  	
   

  
	
   

  	
  Chairman and Chief Executive Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ John Piccione

  	
   

  
	
   

  	
   

  
	
   

  	
  John A. Piccione

  	
   

  
	
   

  	
  Secretary

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  “Employee”

  
	
   

  	
   

  
	
   

  	
  /s/ Thomas Hamilton

  	
   

  
	
   

  	
  Thomas M. Hamilton