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EXHIBIT 10.45
CONSULTING AGREEMENT
This Consulting Agreement ("Agreement") is entered into effective as of
the 15th day of March 1999, by and between Alpha Microsystems ("Alpha Micro"), a
California corporation, and ▇▇▇▇▇ ▇▇▇▇▇ ("Consultant").
WHEREAS, Consultant will provide consulting services to Alpha Micro,
further described in Exhibit "A" attached hereto and incorporated by reference.
WHEREAS, Alpha Micro desires that Consultant provide such services in
accordance with the terms of this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Services.
Consultant shall provide at mutually convenient times and places during
the term of this Agreement, the consulting services described on Exhibit "A" as
may be requested by Alpha Micro from time to time. Such services must be
authorized in writing in advance by Alpha Micro, including the definition of
such services and the time allotted for the services.
2. Term and Termination.
This Agreement shall commence as of the date first above written and
shall continue until (a) terminated by either party for any reason upon 30 days
notice to the other party, or (b) terminated by Alpha Micro immediately for
failure to satisfactorily provide the services set forth above.
3. Payment.
Alpha Micro shall pay to Consultant, in consideration for the services
to be provided in Exhibit "A", the amount of $440 per hour payable, with the
first 40 hours of exclusive consulting with Alpha Microsystems payable upon
completion of this agreement. Subsequent hours will billed in 40 hour block time
invoice at a rate of $110 per hour and payable upon approval by ▇▇▇▇ ▇▇▇▇▇▇ or
▇▇▇▇ ▇▇▇▇▇▇▇▇.. Payment will be made after receipt by Alpha Micro of a suitable
invoice from Consultant.
4. Disclosure and Assignment of Ideas and Creation
Consultant agrees to communicate promptly, completely, and in writing to
Alpha Micro all recommendations, changes, improvements and/or discoveries
("Recommendations") conceived or made by Consultant, either solely or jointly
with others, which arise from or are a consequence of its consulting services to
Alpha Micro, in whole or in part, or which are developed or reduced to practice,
in whole or in part, with facilities, materials, funds, salaries, fees or other
compensation of Alpha Micro, provided such recommendations are within the
general field or interest of Alpha Micro's activities. Consultant agrees that
all such recommendations, as well as all reports, code programs, designs, data
and documentation created by Consultant in the course of providing services to
Alpha Micro hereunder ("Creations") are and shall become the sole property of
Alpha Micro. Consultant hereby assigns, and
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agrees to assign, to Alpha Micro all right, title and interest in and to
such Recommendations, and Creations and to execute all such documents
and take all such actions a Alpha Micro shall reasonably request, but at
no cost to Consultant, to give effect to the foregoing assignment.
5. Work Product
Consultant agrees to communicate promptly, completely, and in writing to
Alpha Micro all recommendations, changes, improvements and/or discoveries
("Recommendation") conceived or made by Consultant, either solely or jointly
with others, which arise from or are a consequence of his consulting services to
Alpha Micro, in whole or part, with facilities, materials, funds, salaries, fees
or other compensation of Alpha Micro, provided such recommendations are within
the general field or interest of Alpha Micro's activities.
Consultant hereby assigns, and agrees to assign, to Alpha Micro all
right, title and interest in and to such recommendations, changes, improvements
and/or discoveries, and to execute all such documents and take all such actions
as Alpha Micro shall reasonably request, but at no cost to Consultant, to give
effect to the foregoing assignment.
6. Proprietary Information
It is expressly understood and agreed that the financial information and
other information about Alpha Micro and its business which Consultant obtains
from Alpha Micro constitute confidential information. Consultant agrees to
observe complete confidentiality with regard to such information including,
without limitation, (i) not to disclose or otherwise permit access to such
information by any other person or entity in any manner whatsoever, except that
such disclosure or access shall be permitted to employees of Consultant
requiring access in the fulfillment of the services provided under this
Agreement; (ii) to assure that Consultant's employees, agents, representatives,
and independent contractors are advised of the confidential nature of such
information and to assure by agreement or otherwise that they are prohibited
from copying or reviewing, for any purpose whatsoever, the contents of such
information or any party thereof, or from taking any action otherwise prohibited
under this Paragraph; (iii) not to use such information or any part thereof in
the performance of services to others or for the benefit of others in any form
whatsoever whether gratuitously or for valuable consideration, except as
permitted under this Agreement; (iv) to notify Alpha Micro promptly and in
writing of the circumstances surrounding any possession, use or knowledge of
such information or any part thereof by any person or entity other than those
authorized by this Paragraph; (v) to take at Consultant's expense but at Alpha
Micro's option and in any event under Alpha Micro control, any legal action
necessary to prevent unauthorized use of such information by any third person or
entity which has gained access to such information at least in part to the fault
of Consultant; (vi) to take any and all other actions necessary or desirable to
assure such continued confidentiality and protection of such information and to
prevent access to such by any person or entity not authorized under this
Paragraph; and (vii) to establish specific procedures designed to meet the
obligations of this Paragraph.
7. Solicitation of Employees
Consultant and Alpha Micro mutually agree that they shall not, during
the term of this Agreement, nor for a period of three (3) months after
termination, solicit for employment or employ, whether as an employee or
independent contractor, any person who is or has been employed by the other
party during the term of this Agreement without the consent of the said party.
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8. Indemnification
Consultant agrees to hold harmless and indemnify Alpha Micro, its
directors, officers, employees, agents, representatives, successors, and assigns
against any and all loss, damage, costs or expenses which Alpha Micro, its
directors, officers, employees, agents, representatives, successors or assigns
may incur or be required to pay by reason of any injury or property damage
caused by or incurred by Consultant.
Alpha Micro agrees to hold harmless and indemnify Consultant, its agents and
representatives, against any and all loss, damage, costs or expenses which
Consultant, agents and representatives, may incur or be required to pay by
reason of any injury or property damage caused by or incurred by Alpha Micro.
9. Property and Security
Without limiting Consultant's obligations with regard to security,
Consultant shall comply with all the rules and regulations established by Alpha
Micro for access to and activity in and around Alpha Micro's plant and property.
Consultant shall be briefed of these procedures at the start of the contract.
10. Independent Contractor
It is expressly agreed that Consultant is an independent contractor for
all purposes under state and federal law, and has no authority to act for or on
behalf of Alpha Micro. Consultant shall not, by this Agreement nor anything
contained herein, be appointed the agent or representative of Alpha Micro for
any purpose whatsoever, and Consultant shall not have any right or authority to
assume or to create any obligations or liabilities, express or implied, for or
on behalf of or in the name of Alpha Micro or to bind Alpha Micro in any way or
manner whatsoever. Consultant will make all deductions required by employers by
state, federal and local laws including deductions for social security and
withholding taxes, contributions for unemployment compensation funds, and shall
maintain worker's compensation and liability insurance for each of its
employees. Consultant is engaged in Consultant's own business independent of
Alpha Micro, and the nature of Consultant's independent contractor relationship
with Alpha Micro shall be further defined as follows:
(a) State and Federal Taxes. Alpha Micro will not withhold any moneys
for any state, local or federal taxing authorities from payments to Consultant
pursuant to this Agreement.
(b) Fringe Benefits. Consultant shall receive no fringe benefits under
this Agreement whatsoever, and accordingly, shall receive no insurance benefits,
disability income, vacation, holiday pay, sick pay, expense reimbursement, or
any other benefits.
(c) Workers' Compensation. Alpha Micro shall not provide workers'
compensation for Consultant. Any and all workers' compensation coverage shall be
the sole responsibility of Consultant.
(d) Consultant's Expenses. Consultant shall be solely responsible for
all expenses incurred by Consultant, including, but not limited to, travel,
entertainment, and business expenses, unless pre-approved in advance by Alpha
Microsystems and shall receive no remuneration or reimbursement of any nature
whatsoever other than the payments referred to herein.
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(e) Alpha Micro Expenses. Consultant shall incur no expenses charged to
Alpha Micro. Any expenses incurred by Consultant shall be the sole
responsibility of Consultant, except as described above.
(f) Office Space. Consultant shall be solely responsible for
establishing Consultant's office.
(g) Hours. The time devoted by Consultant to the performance of this
Agreement shall be left to the sole discretion of Consultant. Consultant shall
not be required to work any specified hours or specified days.
(h) Records. Consultant shall maintain Consultant's own books and
records in whatever format Consultant elects provided such books and records
conform to the requirements of federal and state laws and sufficiently document
the terms and conditions of all testing.
(i) Reports/Meetings. Consultant shall not be required to render any
reports to Alpha Micro or be required to attend any sales meetings.
(j) Licensing/Insurance. Consultant shall obtain and maintain at
Consultant's sole expense any licenses or insurance required by federal, state
or local law.
(k) Non-Exclusivity of Services; Non-Competition. Consultant is free to
pursue any and all outside activities and/or employment as Consultant desires,
and Alpha Micro acknowledges that Consultant will likely be involved in other
business activities, contracting and/or employment. During the first thirty (30)
days of the term of this Agreement, however, Consultant will not, directly or
indirectly, own, manage, operate or control, participate in the ownership,
management, operation or control of, or be connected with, as a shareholder,
director, officer, employee, sales Consultant, partner, agent, consultant or
otherwise, any profit or non-profit business, firm, entity or organization that
competes, directly or indirectly, with, or is similar to, the business of Alpha
Micro.
11. Waiver.
Alpha Micro or Consultant's failure to insist upon the performance of
any of the terms, convenants and conditions of this Agreement or to exercise any
rights or remedies hereunder shall not be considered as a waiver of or a
relinquishment of the future performance of any such terms, covenants or
conditions for the future exercise of such terms, covenants or conditions for
the future exercise of such right or remedy unless otherwise provided for
herein.
12. Assignment
Neither the benefits nor obligations of this Agreement may be assigned
by a party without the prior written consent of the other party.
13. Attorneys' Fees
In any action at law or in equity to enforce any of the provisions or
rights under this Consulting Agreement, each party is responsible for their own
attorney's fees incurred therein by such party or parties including without
limitation such costs, expenses and reasonable attorneys' fees on any appeal.
14. Notices.
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All notices from either party to the other shall be in writing and shall
be considered delivered when deposited in the United States mail, certified or
registered first class, postage prepaid, addressed to the respective parties
hereto as follows:
ALPHA MICRO: Alpha Microsystems
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇, ▇▇ ▇▇▇▇▇
ATTN: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
CONSULTANT: ▇▇▇▇▇ ▇▇▇▇▇
Address: _______________________
Palm Harbor, FL
or to such other address as may be designated by the respective parties in
writing.
15. Governing Law
This Agreement shall be construed and interpreted and the legal
relations created hereby shall be determined in accordance with the laws of the
State of California.
16. Entire Agreement
This writing represents the entire Agreement between the parties related
to the subject matter of this Agreement, and there are no understandings,
representations or warranties of any kind except as expressly set forth herein.
No waiver, alteration or modification of any of the provisions herein shall be
binding on either party unless in writing and signed by the party against whom
enforcement of such waiver, alteration or modification is sought.
17. Duplicate Execution.
This Agreement including the exhibits attached hereto may be executed in
duplicate, and each copy shall have the force and effect of an original. The
undersigned parties represent that they have the authority to legally bind their
companies herein.
Whenever the masculine gender is used in this Agreement to refer to
Consultant, it shall be construed to apply to the female gender or a business
entity as appropriate.
AGREED TO:
ALPHA MICRO CONSULTANT
By: __________________________ ______________________________________
Title: _______________________ Social Security No.: _________________
Date: ________________________ Date: ________________________________
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EXHIBIT "A"
Consultant shall perform projects at the request of the Vice President of
Finance and/or President/CEO/Chairman of Alpha Microsystems which may include,
but not be limited to, the following:
1. Services related to identification, due diligence and integration of
acquisitions.
2. Follow up on duties previously performed in your position. Available via
phone or other means to answer questions regarding customers, vendors
etc.
