Contract
Exhibit 99.1
APPENDIX A
THIS
INDEPENDENT CONSULTING AGREEMENT (the “Agreement”) is
made effective as of June 1,
2005 (the
“Effective
Date”),
between
Trestle Holdings,
Inc.,
a
Delaware corporation with a principal place of business at 000 Xxxxxxxxxx Xx.
Xxxxx 000, Xxxxxx, Xxxxxxxxxx 00000 (“Trestle”), on
the one hand, and Xxxxxxx
Xxxxxxx (“Consultant”), on
the other hand. Trestle and Consultant may be referred to herein as the
“Parties”
collectively, or as Trestle or Consultant,
individually.
WHEREAS,
Trestle
is engaged in the business of developing, owning, using, licensing, marketing,
and selling on a worldwide basis a series of microscopy and telemedicine
products and services;
WHEREAS, Consultant is a member of the
Board of Directors of Trestle;
WHEREAS,
the independent members of the Board of Directors have resolved to engage
Consultant as Executive Chairman of the Company;
WHEREAS,
the material facts of this Agreement have been fully disclosed or are known to
the Board of Directors; and
WHEREAS,
the independent members of the Board of Directors have authorized this Agreement
in good faith.
NOW
THEREFORE, in consideration of the mutual promises contained herein, as well as
other valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Parties agree as follows:
1. Consulting
Services.
Consultant hereby agrees to provide Trestle with the consulting services
specified in the Description of Work attached hereto as Appendix
A (the
“Services”).
Consultant shall provide the Services as an independent contractor. Nothing
contained herein shall be considered to create the relationship of employer and
employee, partnership, joint venture or other association between the Parties.
Subject
to Trestle's indemnification obligations in Section
6 below,
Trestle shall not be liable for any acts or omissions of Consultant made in
connection with the Services.
Consultant shall be solely responsible for the payment of all income, sales,
employment, excise, withholding, and other taxes imposed on or with respect to
compensation and other amounts received pursuant to this Agreement. 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 and other amounts
received under this Agreement. Trestle shall make no social security, workers
compensation or unemployment insurance payments on behalf of Consultant;
provided, however, that if required by law or any governmental agency, Trestle
shall withhold such payments from amounts due Consultant, and any such
withholding shall be for Consultant's account and shall not be reimbursed by
Trestle to Consultant. Consultant will not be entitled to any workers'
compensation, disability benefits or unemployment insurance benefits coverage
from Trestle. Consultant shall have no authority to act for or on behalf of, or
otherwise bind, Trestle except as expressly authorized by Trestle.
2. Term. This
Agreement shall commence on the Effective Date and
continue until May 31,
2006 (the
“Initial
Term”),
unless
terminated by mutual agreement in writing by the Parties, or terminated in
accordance with the provisions of this Agreement.
3. Compensation. In
consideration of the Services, Trestle shall pay Consultant in accordance with
the payment terms described in Appendix
A hereto
(the “Fees”). In
addition, Trestle shall pay Consultant’s reasonable expenses incurred in
connection with the Services (the “Expenses”),
provided, however, that the Expenses must fall within the accepted categories
described in Appendix
A, and
provided further that each expense over $500.00 per month is pre-approved by
Trestle in writing.
4. Confidentiality
and Inventions Agreement.
Consultant shall
execute, and agrees
to be bound
by, the terms of that certain Confidentiality and Inventions Agreement (the
“Inventions
Agreement”), a
form of which is attached hereto as Appendix B, as of the Effective
Date. [Please
provide a copy of the Inventions Agreement for review]. During
the term of this Agreement, Consultant shall not provide services to, nor be
employed by, any competitor of Trestle.
5. Representations
and Warranties.
Consultant represents and warrants that: (i) Consultant possesses the requisite
skill and ability to render the Services in a reasonably workmanlike manner;
(ii) Consultant is able to render the Services described in Appendix A without
interfering with any obligation, including without limitation any obligation of
confidentiality, which Consultant may owe a third party; (iii) Consultant owns
or has properly obtained all applicable rights in and to the Inventions and
Works and Materials (as such terms are defined in the Inventions Agreement)
devised, developed, designed, discovered, reduced to practice or otherwise
utilized by Consultant in the course of providing the Services described in
Appendix
A, and
such Inventions and Works and Materials do not, and shall not, infringe upon, or
otherwise violate any rights of, any third party; (iv) this Agreement does not
conflict with any other agreement or term of employment applicable to or binding
upon Consultant and Consultant will promptly notify Trestle in the event that
any such conflict does arise during the term hereof; and (v) Consultant shall
render the Services to be performed hereunder in compliance with all material
laws, statutes, ordinances, orders, rules and regulations, including stock
exchange rules.
6. Indemnification.
Consultant shall indemnify, defend and hold harmless Trestle from and against
any and all liability, loss, damage, expense, claims or suits arising out of:
(i) Consultant’s breach of this Agreement, including any representation or
warranty contained herein; or (ii) any grossly negligent or willful act or
omission by Consultant or his employees, associates, consultants, agents,
representatives, assignees or successors in interest, which occurs pursuant to
or in connection with this Agreement or the relationship or relationships
contemplated by this Agreement. Trestle shall indemnify, defend and hold
harmless Consultant from and against any and all liability, loss, damage,
expense, claims or suits arising out of: (i) Trestle’s breach of this Agreement,
including any representation or warranty contained herein; or (ii) the Services
provided by Consultant, provided such claim does not in any manner arise from:
(A) Consultant’s breach of this Agreement, including any representation or
warranty contained herein, or (B) Consultant’s, or his employees, associates,
consultants, agents, representatives, assignees or successors in interest,
grossly negligent or willful act or omission which occurs pursuant to or in
connection with this Agreement or the relationship or relationships contemplated
by this Agreement.
7. Termination. This
Agreement may be terminated immediately by either
Party upon a material breach by the other Party. For purposes of this Agreement,
a material breach by either shall include Trestle’s failure to timely pay
Consultant’s Fees and Expenses in accordance with the Description of Work in
Appendix
A. A
material breach by Consultant shall include, without limitation: (i) failure to
adhere to the material
terms and
conditions of this
Agreement; (ii)
any conduct by Consultant that (in the good faith determination of
Trestle) would
materially injure the goodwill or reputation of Trestle; (iii)
Consultant’s breach of any representation or warranty; and (iv) non-performance
of the duties under this agreement. In the case of a change in control of the
Trestle, at its sole discretion, Trestle may terminate this agreement by giving
30 days notice. For purpose of this agreement, change of control will constitute
a change in ownership of more that fifty percent of the Company’s common stock
within a ninety-day period.
8. Effect
of Termination. In the
event of any termination of this Agreement prior to completion of the
Term, other
than for change of control, and in
accordance with the specifications of Section
8
hereof, Trestle
agrees to pay Consultant any
unpaid balance due for work performed up to and including the date of
termination. Upon
termination, Consultant will return to Trestle all material containing
Confidential Information (as defined in the Inventions Agreement) and all
records, data, notes, reports, printouts, sketches, material, equipment and
other documents or property, and all reproductions of any of the foregoing,
furnished by Trestle or developed or prepared by Consultant in connection with
the Services.
9. Notices. Any and
all notices or other communications required or permitted to be given by either
Party to the other shall be in writing and may be transmitted either by personal
delivery by a national courier service or by mail, certified postage prepaid,
with return receipt requested. Notices shall be deemed duly served and given
when personally delivered to the Party to whom directed or any of its officers,
or, in lieu of such personal service, three days after being deposited in the
United States Mail, certified mail, return receipt requested, postage prepaid,
addressed as follows:
|
To
Trestle:Trestle
Holdings, Inc. |
000
Xxxxxxxxxx Xx. Xxxxx 000
Xxxxxx,
XX 00000
Facsimile: (000)
000-0000
Attention:
Xxxxx Xxxx
|
To
Consultant:Xxxxxxx
Xxxxxxx |
000
Xxxxxxx Xxxxxx Xxxx
Xxxxxx
xxx Xxx, XX 00000
Facsimile:
(000) 000-0000
10. Entire
Agreement. This
Agreement, together with the Appendices hereto, and the
Inventions Agreement, shall
constitute the entire agreement between the Parties hereto with respect to the
retention of Consultant by Trestle, and contains all of the covenants and
agreements between the Parties with respect to that retention in any manner
whatsoever. Each Party 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,
or in the
Inventions Agreement, and that
no other agreement, statement, or promise not contained in this
Agreement, or the
Inventions Agreement, shall be
valid or binding.
11. Modification. This
Agreement may not be amended except by a written agreement modifying the
appropriate document duly executed by Consultant and an officer of
Trestle.
12. Successors
and Assigns.
This
Agreement shall be binding on the parties hereto and their respective successors
and permitted assigns. Consultant’s duties, obligations, rights and privileges
hereunder may not be delegated or assigned in any manner without Trestle’s prior
written consent, which shall be provided or withheld in Trestle’s sole
discretion. The benefits hereunder with respect to the rights of Trestle may be
assigned by Trestle to any other corporation or other business entity which
succeeds to all or substantially all of the business of Trestle through merger,
consolidation, corporate reorganization or by acquisition of all or
substantially all of the assets of Trestle.
13. Effect
or Waiver.
Waiver by
either of the parties of any breach of any provision of this Agreement shall not
operate or be construed as a waiver of any prior or subsequent breach of the
same or any other provision hereof.
14. Severability.
If any
provision of this Agreement is or becomes or is deemed invalid, illegal or
unenforceable in any jurisdiction such provision shall be deemed amended to
conform to the applicable laws of such jurisdiction so as to be valid and
enforceable or, if it cannot be so amended without materially altering the
intention of the parties, it will be stricken, but the validity, legality and
enforceability of such provision shall not in any way be affected or impaired
thereby in any other jurisdiction and the remainder of this Agreement shall
remain in full force and effect.
15. Governing
Law and Venue. This
Agreement shall be governed by and construed in accordance with the law of the
State of California, without
reference to the conflict of laws principles thereof. Any
conflict or dispute arising under this Agreement or the relationship between the
Parties shall be resolved exclusively before a court of competent jurisdiction
in Orange County, California.
16. Construction. Each
party to this Agreement has had the opportunity to review this Agreement with
legal counsel. This Agreement shall not be construed or interpreted against any
party on the basis that such party drafted or authored a particular provision,
parts of or the entirety of this Agreement.
17. Survival.
Sections
4, 5, 6 and 8-19 will
survive the expiration or termination of this Agreement.
18. Attorney’s
Fees.
The
prevailing party in any litigation instituted under this Agreement shall, in
addition to other remedies, be entitled to be reimbursed by the other party for
all expenses of such litigation, including reasonable attorneys’ fees and
expenses.
19. Headings. The
headings to the sections and Appendices of this Agreement are included merely
for convenience of reference and do not affect the meaning of the language
included therein.
20.
Equitable
Remedies. In the
event of a breach or threatened breach of the terms of this Agreement by
Consultant or Trestle, the parties hereto acknowledge and agree that it would be
difficult to measure the damage to the Consultant or Trestle from such breach,
that injury to the Consultant or Trestle from such breach would be impossible to
calculate and that monetary damages would therefore be an inadequate remedy for
any breach. Accordingly, the Consultant or Trestle, 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 Consultant or Trestle.
21. Counterparts. This
Agreement may be executed in counterparts, each of which will be deemed an
original, but both of which together will constitute one and the same
instrument.
IN
WITNESS WHEREOF, the Parties have entered into this Agreement as of the
Effective Date written above.
TRESTLE
HOLDINGS,
INC.
By:
Xxxxxxx
Dallas
Chairman
of the Compensation Committee
CONSULTANT
By:
Xxxxxxx
Xxxxxxx
Description
of Work
1.DETAILED
DESCRIPTION OF WORK: As
Executive Chairman, the Consultant will oversee the capitalization of the
Company, investor relations and will provide strategic advice to the Chief
Executive Officer. Additionally, Consultant agrees to assume the obligation of
providing an administrative assistant to Mr. Xxxxx Burledge from the
commencement date until the termination of Mr. Burledge’s contract on March 31,
2006.
2.START
DATE:
June 1,
2005
3. COMPLETION
DATE: May 31,
2006
4.PERSON(S)
WHO ARE TO PERFORM THE WORK: Xxxxxxx
Xxxxxxx
5.AUTHORIZED
REPRESENTATIVE OF TRESTLE:
The
character of Consultant’s Services shall be subject to the assignment and
direction of the Board
of Directors and shall coordinate and report his activities to the Executive
Committee and Audit Committee [
6.SCHEDULE
PERFORMANCE:
If at any
time during the performance of this contract any phase of the required tasks
appears to be impossible of execution or if any phase cannot be completed on
schedule, it is agreed that Consultant will notify Trestle within one (1) day of
such determination. At the time of such notification Consultant shall explain to
Trestle why a particular task is impossible to complete and propose alternative
procedures for achieving the desired result.
0.XXXXXX
SCHEDULE:
Consultant
shall report regularly to the Executive Committee and Audit Committee on
Consultant’s progress on the tasks enumerated above, and shall invoice Trestle
monthly in arrears for work performed.
8.PAYMENT
TERMS:
Consultant’s
compensation will be $20,000 per month in advance, and shall xxxx on a monthly
basis for work performed during the preceding month. Additionally, the
Consultant shall be paid a monthly allowance of $2,500 in advance to cover
expenses related of an administrative assistant.
All
amounts to be paid in US Dollars to Consultant’s bank account by wire or
electronic transfer.
9.EXPENSES:
The
Company agrees that Consultants affiliated company, Xxxxxxx & Company shall
have access to approximately 3,500 square feet of office space until September
26, 2005. From September 27, 2005 to May 31, 2006 Consultant shall have access
to one office and appropriate space for an administrative assistant. Trestle
agrees to reimburse Consultant for the following reasonable and customary
expenses, against invoice with accompanying receipts. All expenses above $500
shall be pre-approved by the Compensation Committee prior to incurring into
them:
|
Yes
|
No
| |
|
- Routine
out-of-pocket expense
|
ü
|
|
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- Local
travel
|
ü
| |
|
- Long
distance travel at the direction
of
the Executive Committee
|
ü
|
|
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- Other
- as approved in advance
|
ü
|
8
APPENDIX
B
CONFIDENTIALITY
AND INVENTIONS AGREEMENT
