Trestle Holdings, Inc. CONSULTING, CONFIDENTIALITY AND PROPRIETARY RIGHTS AGREEMENT
Exhibit
99.1
Trestle
Holdings, Inc.
This
Consulting, Confidentiality and Proprietary Rights Agreement ("Agreement")
is
entered into as of the 25th day of September, 2006 (the “Effective Date”) by and
between Trestle Holdings, Inc., a Delaware corporation (the “Company”), and Xxxx
Xxxxxxxxxxxx (“Consultant”).
WHEREAS,
the Company desires to engage Consultant to provide certain services as set
forth on Schedule attached hereto and as specified from time to time by the
Company.
NOW,
THEREFORE, in consideration of the foregoing and the mutual covenants and
conditions contained herein, the parties hereto agree as follows:
1.
Engagement.
The
Company hereby engages Consultant to perform those duties set forth in the
Schedule attached hereto and such other duties as may be requested from time
to
time by the Chairman or Board of Directors of the Company. Consultant hereby
accepts such engagement upon the terms and subject to conditions set forth
in
this Agreement.
2.
Compensation.
For the
services rendered by Consultant under this Agreement, the Company shall pay
to
Consultant the compensation specified in the Schedule, subject to the terms
and
conditions set forth in this Agreement.
3.
Term
and Survivability.
The term
of this Agreement shall be for a period of six months from the Effective Date.
Notwithstanding the foregoing, Company may terminate this Agreement on or after
thirty
days (30) of
providing written notice to Consultant and Consultant may terminate this
Agreement on or after thirty days (30) of providing written notice to Company.
In addition, this Agreement may be terminated if either party materially fails
to perform or comply with this Agreement or any material provision hereof.
Termination shall be effective five (5) days after notice of such material
failure to perform or comply with this Agreement or any material provision
hereof to the defaulting party if the defaults have not been cured within such
five (5) day period. Upon termination of this Agreement the following sections
of this Agreement shall survive such termination: Sections 3, 5, 6, 7, 8, 10,
12
and 13.
4.
Costs
and Expenses of Consultant’s Performance.
Except
as set forth on the Schedule, all costs and expenses of Consultant’s performance
hereunder shall be borne by the Consultant.
5.
Taxes.
As an
independent contractor, Consultant acknowledges and agrees that it is solely
responsible for the payment of any taxes and/or assessments imposed on account
of the payment of compensation to, or the performance of services by Consultant
pursuant this Agreement, including, without limitation, any unemployment
insurance tax, federal and state income taxes, federal Social Security (FICA)
payments, and state disability insurance taxes. The Company shall not make
any
withholdings or payments of said taxes or assessments with respect to amounts
paid to Consultant hereunder; provided, however, that if required by law or
any
governmental agency, the Company shall withhold such taxes or assessments from
amounts due Consultant, and any such withholding shall be for Consultant's
account and shall not be reimbursed by the Company to Consultant. Consultant
expressly agrees to make all payments of such taxes, as and when the same may
become due and payable with respect to the compensation earned under this
Agreement.
6.
Confidentiality.
Consultant agrees that Consultant will not, except when required by applicable
law or order of a court, during the term of this Agreement or thereafter,
disclose directly or indirectly to any person or entity, or copy, reproduce
or
use, any Trade Secrets (as defined below) or Confidential Information (as
defined below) or other information treated as confidential by the Company
known, learned or acquired by the Consultant during the period of the
Consultant's engagement by the Company. For purposes of this Agreement,
"Confidential Information" shall mean any and all Trade Secrets, knowledge,
data
or know-how of the Company, any of its affiliates or of third parties in the
possession of the Company or any of its affiliates, and any nonpublic technical,
training, financial and/or business information treated as confidential by
the
Company or any of its affiliates, whether or not such information, knowledge,
Trade Secret or data was conceived, originated, discovered or developed by
Consultant hereunder. For purposes of this Agreement, "Trade Secrets" shall
include, without limitation, any formula, concept, pattern, processes, designs,
device, software, systems, list of customers, training manuals, marketing or
sales or service plans, business plans, marketing plans, financial information,
or compilation of information which is used in the Company's business or in
the
business of any of its affiliates. Any information of the Company or any of
its
affiliates which is not readily available to the public shall be considered
to
be a Trade Secret unless the Company advises Consultant in writing otherwise.
Consultant acknowledges that all
of
the Confidential Information is proprietary to the Company and is a special,
valuable and unique asset of the business of the Company, and that Consultant's
past, present and future engagement by the Company has created, creates and
will
continue to create a relationship of confidence and trust between the Consultant
and the Company with respect to the Confidential Information. Furthermore,
Consultant shall immediately notify the Company of any information which comes
to its attention which might indicate that there has been a loss of
confidentiality with respect to the Confidential Information. In such event,
Consultant shall take all reasonable steps within its power to limit the scope
of such loss.
7.
Return
of the Company’s Proprietary Materials.
Consultant agrees to deliver promptly to the Company on termination of this
Agreement for whatever reason, or at any time the Company may so request, all
documents, records, artwork, designs, data, drawings, flowcharts, listings,
models, sketches, apparatus, notebooks, disks, notes, copies and similar
repositories of Confidential Information and any other documents of a
confidential nature belonging to the Company, including all copies, summaries,
records, descriptions, modifications, drawings or adaptations of such materials
which Consultant may then possess or have under its control. Concurrently with
the return of such proprietary materials to the Company, Consultant agrees
to
deliver to the Company such further agreements and assurances to ensure the
confidentiality of proprietary materials. Consultant further agrees that upon
termination of this Agreement, Consultant's, employees, consultants, agents
or
independent contractors shall not retain any document, data or other material
of
any description containing any Confidential Information or proprietary materials
of the Company.
8.
Assignment
of Proprietary Rights.
Other
than the Proprietary Rights listed on the Schedule attached hereto, if any,
Consultant hereby assigns and transfers to the Company all right, title and
interest that Consultant may have, if any, in and to all Proprietary Rights
(whether or not patentable or copyrightable) made, conceived, developed, written
or first reduced to practice by Consultant, whether solely or jointly with
others, during the period of Consultant's engagement by the Company which relate
in any manner to the actual or anticipated business or research and development
of the Company, or result from or are suggested by any task assigned to
Consultant or by any of the work Consultant has performed or may perform for
the
Company.
Consultant
acknowledges and agrees that the Company shall have all right, title and
interest in, among other items, all research information and all documentation
or manuals related thereto that Consultant develops or prepares for the Company
during the period of Consultant's engagement by the Company and that such work
by Consultant shall be work made for hire and that the Company shall be the
sole
author thereof for all purposes under applicable copyright and other
intellectual property laws. Other than the Proprietary Rights listed on the
Schedule attached hereto, Consultant represents and covenants to the Company
that there are no Proprietary Rights relating to the Company's business which
were made by Consultant prior to Consultant's engagement by the Company.
Consultant agrees promptly to disclose in writing to the Company all Proprietary
Rights in order to permit the Company to claim rights to which it may be
entitled under this Agreement. With respect to all Proprietary Rights which
are
assigned to the Company pursuant to this Section 8, Consultant will assist
the
Company in any reasonable manner to obtain for the Company's benefit patents
and
copyrights thereon in any and all jurisdictions as may be designated by the
Company, and Consultant will execute, when requested, patent and copyright
applications and assignments thereof to the Company, or other persons designated
by the Company, and any other lawful documents deemed necessary by the Company
to carry out the purposes of this Agreement. Consultant will further assist
the
Company in every way to enforce any patents, copyrights and other Proprietary
Rights of the Company.
9.
Trade
Secrets of Others.
Consultant represents to the Company that its performance of all the terms
of
this Agreement does not and will not breach any agreement to keep in confidence
proprietary information or trade secrets acquired by Consultant in confidence
or
in trust prior to its engagement by the Company, and Consultant will not
disclose to the Company, or induce the Company to use, any confidential or
proprietary information or material belonging to others. Consultant agrees
not
to enter into any agreement, either written or oral, in conflict with this
Agreement.
10.
Other
Obligations.
Consultant acknowledges that the Company, from time to time, may have agreements
with other persons which impose obligations or restrictions on the Company
regarding proprietary rights made or developed during the course of work
hereunder or regarding the confidential nature of such work. Consultant agrees
to be bound by all such obligations and restrictions and to take all action
necessary to discharge the obligations of the Company hereunder.
11.
Independent
Contractor.
Consultant shall not be deemed to be an employee or agent of the Company for
any
purpose whatsoever. Consultant shall have the sole and exclusive control over
its employees, consultants or independent contractors who provide services
to
the Company, and over the labor and employee relations policies and policies
relating to wages, hours, working conditions or other conditions of its
employees, consultants or independent contractors.
12.
Non-Solicit.
Consultant will not, during the term this Agreement and for one year thereafter,
directly or indirectly (whether as an owner, partner, shareholder, agent,
officer, director, employee, independent contractor, consultant, or otherwise)
with or through any individual or entity: (i) employ, engage or solicit for
employment any individual who is, or was at any time after the Effective Date
of
this Agreement for any reason, an employee of the Company, or otherwise seek
to
adversely influence or alter such individual's relationship with the Company;
or
(ii) solicit or encourage any individual or entity that is, or was after the
Effective Date and immediately prior to the termination of this Agreement for
any reason, a customer or vendor of the Company to terminate or otherwise alter
his, her or its relationship with the Company or any of its
affiliates.
13.
Equitable
Remedies.
In the
event of a breach or threatened breach of the terms of this Agreement by
Consultant, the parties hereto acknowledge and agree that it would be difficult
to measure the damage to the Company from such breach, that injury to the
Company from such breach would be impossible to calculate and that monetary
damages would therefore be an inadequate remedy for any breach. Accordingly,
the
Company, in addition to any and all other rights which may be available, shall
have the right of specific performance, injunctive relief and other appropriate
equitable remedies to restrain any such breach or threatened breach without
showing or proving any actual damage to the Company.
14.
Governing
Law.
This
Agreement shall be governed, construed and interpreted in accordance with the
internal laws of the State of California. In the event a judicial proceeding
is
necessary, the sole forum for resolving disputes arising under or relating
to
this Agreement are the Municipal and Superior Courts for the County of Los
Angeles, California or the Federal District Court for the Central District
of
California and all related appellate courts, and the parties hereby consent
to
the jurisdiction of such courts, and that venue shall be in Los Angeles County,
California.
15.
Entire
Agreement: Modifications and Amendments.
The
terms of this Agreement are intended by the parties as a final expression of
their agreement with respect-to such terms as are included in this Agreement
and
may not be contradicted by evidence of any prior or contemporaneous agreement.
The Schedule referred to in this Agreement is incorporated into this Agreement
by this reference. This Agreement may not be modified, changed or supplemented,
nor may any obligations hereunder be waived or extensions of time for
performance granted, except by written instrument signed by the parties or
by
their agents duly authorized in writing or as otherwise expressly permitted
herein.
16.
Attorneys
Fees.
Should
any party institute any action or proceeding to enforce this Agreement or any
provision hereof, or for damages by reason of any alleged breach of this
Agreement or of any provision hereof, or for a declaration of rights hereunder,
the prevailing party in any such action or proceeding shall be entitled to
receive from the other party all costs and expenses, including reasonable
attorneys' fees, incurred by the prevailing party in connection with such action
or proceeding.
17.
Prohibition
of Assignment.
This
Agreement and the rights, duties and obligations hereunder may not be assigned
or delegated by Consultant without the prior written consent of the Company.
Any
assignment of rights or delegation of duties or obligations hereunder made
without such prior written consent shall be void and of no effect.
18.
Binding
Effect: Successors and Assignment.
This
Agreement and the provisions hereof shall be binding upon each of the parties,
their successors and permitted assigns.
19.
Validity.
This
Agreement is intended to be valid and enforceable in accordance with its terms
to the fullest extent permitted by law. If any provision of this Agreement
is
found to be invalid or unenforceable by any court of competent Jurisdiction,
the
invalidity or unenforceability of such provision shall not affect the validity
or enforceability of all the remaining provisions hereof.
20.
Notices.
All
notices and other communications hereunder shall be in writing and, unless
otherwise provided herein, shall be deemed duly given if delivered personally
or
by telecopy or mailed by registered or certified mail (return receipt requested)
or by Federal Express or other similar courier service to the parties at the
following addresses or (at such other address for the party as shall be
specified by like notice)
(i)
If to
the Company:
Trestle
Holdings, Inc.
Xxxxxxx
Xxxxxxx
Attn:
Xxxxxxx Xxxxxxx
(ii)
If
to the Consultant:
Xxxx
Xxxxxxxxxxxx
Attn:
Xxxx Xxxxxxxxxxxx
Any
such
notice, demand or other communication shall be deemed to have been given on
the
date personally delivered or as of the date mailed, as the case may
be.
IN
WITNESS WHEREOF, the parties hereto have executed this Consulting,
Confidentiality, and Proprietary Rights Agreement as of the Effective Date
written above.
Xxxx
Xxxxxxxxxxxx
By:_________________________________
Name:
Xxxx Xxxxxxxxxxxx
Title:
Consultant
Trestle
Holdings, Inc.
By:_________________________________
Name:
Xxxxxxx Xxxxxxx
Title:
Chairman
1
Schedule
1.
DUTIES
A.
Financial Duties
| § |
Maintain
accurate books and records of the Company including
accounting.
|
| § |
Oversee
reviews and audits.
|
| § |
Timely
make appropriate and necessary filings.
|
| § |
Help
in the disposal of the public shell.
|
| § |
Handle
all AP and AR related matters.
|
| § |
Shut
down operating activities.
|
| § |
Oversee
tax matters.
|
| § |
Oversee
legal matters.
|
| § |
Shut
down all benefit programs.
|
| § |
Shut
down payroll.
|
| B. |
Interim
President and Secretary Duties
|
| § |
Serve
as interim President and Secretary.
|
| § |
Perform
the duties as set forth under Acticle 3 of the Trestle Holdings, Inc.
By-Laws dated July 10, 2002.
|
2.SCHEDULE
AND COMITTMENT OF TIME:
If
at any
time during the performance of this contract any phases of the required tasks
appear to be impossible of execution or if any phase cannot be completed on
schedule, it is agreed that Consultant will notify Company within one (1) day
of
such determination. At the time of such notification Consultant shall explain
to
Company why a particular task is impossible to complete and propose alternative
procedures for achieving the desired result.
3.REPORTING
SCHEDULE:
Consultant
shall report regularly, and not less frequent than once every two weeks, to
the
Company his progress on the tasks enumerated above.
4.COMPENSATION
AND PAYMENT TERMS:
Consultant
shall be paid no later than the fifth day following the Effective Date for
the
First month and one month from that date thereafter:
First
month $15,000
Second
month $12,500
Third
month $10,000
Fourth
month $10,000
Fifth
month $10,000
Sixth
month $10,000
5.EXPENSES:
The
Company shall prepay the Consultant $1,000 per month for office rent in the
location he chooses which may be limited to a home office. Company agrees to
reimburse Consultant for reasonably necessary travel, phone and office expenses
other then rent. However, should such expenses exceed $500 in any given calendar
month; such expenses shall be pre-approved in advance by Company in order to
qualify to reimbursement. An email authorization by the Chairman of Company
shall be deemed a valid approval.
