CONSULTING AGREEMENT
This Agreement is made as of December 28, 1998, (the "Effective
Date") by and between Insignia Solutions, a corporation ("Company"), and
Albert Sisto ("Consultant").
R E C I T A L
Consultant desires to perform, and Company desires to have Consultant
perform, consulting services as an independent contractor to Company.
NOW, THEREFORE, the parties agree as follows:
1. SERVICES.
(a) REQUEST. From time to time during the Period of
Consultancy (as defined below), Company may request
Consultant to provide certain services to Company.
However, Company has no obligation to request Consultant
to perform any services, and if such a request is made
by Company, Consultant has no obligation to agree to
perform such services. Company's request will specify
the services to be performed and the specific results to
be achieved (the "SERVICES") by use of the form attached
hereto as Exhibit A (the "PROJECT DESCRIPTION").
(b) PERFORMANCE. Upon agreement between Consultant and
Company to the Services, compensation and completion
date terms of the Project Description, Consultant will
perform the Services. Consultant agrees to use best
efforts to perform the Services during the Period of
Consultancy.
(c) PERIOD OF CONSULTANCY. The "Period of Consultancy" will
commence on the Effective Date and will terminate on
June 30, 1999, unless at that time Services are being
performed pursuant to a Project Description which
specifies a later completion date, in which case the
Period of Consultancy will terminate on such completion
date.
(d) PAYMENT. As sole compensation for the performance of the
Services, Company will pay Consultant the hourly
consulting rate stated in the Project Description, up to
the maximum fee stated. Any expenses incurred by
Consultant in performing the Services will be the sole
responsibility of Consultant. Consultant will invoice
Company on a monthly basis for the number of hours spent
in performing the Services. Company will pay each such
invoice no later than thirty (30) days after its
receipt. Consultant will receive no royalty or other
remuneration on the production or distribution of any
products developed by Company or by Consultant in
connection with or based upon the Services ("PRODUCTS").
2. RELATIONSHIP OF PARTIES.
(a) INDEPENDENT CONTRACTOR. Consultant is an independent
contractor and is not an agent or employee of, and has
no authority to bind, Company by contract or otherwise.
Consultant will perform the Services under the
general direction of Company, but Consultant will
determine, in Consultant's sole discretion, the manner
and means by which the Services are accomplished,
subject to the requirement that Consultant shall at
all times comply with applicable law. Company has no
right or authority to control the manner or means by
which the Services are accomplished.
(b) EMPLOYMENT TAXES AND BENEFITS. Consultant will report as
self-employment income all compensation received by
Consultant pursuant to this Agreement. Consultant will
indemnify Company and hold it harmless from and against
all claims, damages, losses and expenses, including
reasonable fees and expenses of attorneys and other
professionals, relating to any obligation imposed by law
on Company to pay any withholding taxes, social
security, unemployment or disability insurance, or
similar items in connection with compensation received
by Consultant pursuant to this Agreement. Consultant
will not be entitled to receive any vacation or illness
payments, or to participate in any plans, arrangements,
or distributions by Company pertaining to any profit
sharing, insurance or similar benefits for Company's
employees. Consultant will be entitled to receive stock
options as determined by the Compensation Committee of
Company, and bonus as specified in Exhibit A (6).
(c) LIABILITY INSURANCE. Consultant will maintain adequate
insurance to protect Consultant from the following: (a)
claims under worker's compensation and state disability
acts; (b) claims for damages because of bodily injury,
sickness, disease or death which arise out of any
negligent act or omission of Consultant; and (c) claims
for damages because of injury to or destruction of
tangible or intangible property, including loss of use
resulting therefrom, which arise out of any negligent
act or omission of Consultant.
3. PROPERTY OF COMPANY.
(a) DEFINITION. For the purposes of this Agreement, "DESIGNS
AND MATERIALS" shall mean all designs, discoveries,
inventions, products, computer programs, procedures,
improvements, developments, drawings, notes, documents,
information and materials made, conceived or developed
by Consultant alone or with others which result from or
relate to the Services.
(b) ASSIGNMENT OF OWNERSHIP. Consultant hereby irrevocably
transfers and assigns any and all of its right, title,
and interest in and to Designs and Materials, including
but not limited to all copyrights, patent rights, trade
secrets and trademarks, to Company. Designs and
Materials will be the sole property of Company and
Company will have the sole right to determine the
treatment of any Designs and Materials, including the
right to keep them as trade secrets, to file and execute
patent applications on them, to use and disclose them
without prior patent application, to file registrations
for copyright or trademark on them in its own name, or
to follow any other procedure that Company deems
appropriate. Consultant
agrees: (a) to disclose promptly in writing to Company
all Designs and Materials; (b) to cooperate with and
assist Company to apply for, and to execute any
applications and/or assignments reasonably necessary
to obtain, any patent, copyright, trademark or other
statutory protection for Designs and Materials in
Company's name as Company deems appropriate; and (c)
to otherwise treat all Designs and Materials as
"Confidential Information", as defined below. These
obligations to disclose, assist, execute and keep
confidential will survive any expiration or termination
of this Agreement.
(c) MORAL RIGHTS WAIVER. "MORAL RIGHTS" means any right to
claim authorship of a work, any right to object to any
distortion or other modification of a work, and any
similar right, existing under the law of any country in
the world, or under any treaty. Consultant hereby
irrevocably transfers and assigns to Company any and all
Moral Rights that Consultant may have in any Services,
Designs and Materials or Products. Consultant also
hereby forever waives and agrees never to assert against
Company, its successors or licensees any and all Moral
Rights Consultant may have in any Services, Designs and
Materials or Products, even after expiration or
termination of the Period of Consultancy.
4. CONFIDENTIAL INFORMATION. Consultant acknowledges that
Consultant will acquire information and materials from Company
and knowledge about the business, products, programming
techniques, experimental work, customers, clients and suppliers
of Company and that all such knowledge, information and
materials acquired, the existence, terms and conditions of this
Agreement, and the Designs and Materials, are and will be the
trade secrets and confidential and proprietary information of
Company (collectively "CONFIDENTIAL INFORMATION"). Confidential
Information will not include, however, any information which is
or becomes part of the public domain through no fault of
Consultant or that Company regularly gives to third parties
without restriction on use or disclosure. Consultant agrees to
hold all such Confidential Information in strict confidence, not
to disclose it to others or use it in any way, commercially or
otherwise, except in performing the Services, and not to allow
any unauthorized person access to it, either before or after
expiration or termination of this Agreement. Consultant further
agrees to take all action reasonably necessary and satisfactory
to protect the confidentiality of the Confidential Information
including, without limitation, implementing and enforcing
operating procedures to minimize the possibility of unauthorized
use or copying of the Confidential Information.
5. TERMINATION AND EXPIRATION.
(a) BREACH. Either party may terminate this Agreement in the
event of a breach by the other party of this Agreement
if such breach continues uncured for a period of ten
(10) days after written notice.
(b) AT WILL. Company may terminate this Agreement at any
time, for any reason or no reason, by written notice to
Consultant.
(c) EXPIRATION. Unless terminated earlier, this Agreement
will expire at the end of the Period of Consultancy.
(d) NO ELECTION OF REMEDIES. The election by Company to
terminate this Agreement in accordance with its terms
shall not be deemed an election of remedies, and all
other remedies provided by this Agreement or available
at law or in equity shall survive any termination.
6. EFFECT OF EXPIRATION OR TERMINATION. Upon the expiration or
termination of this Agreement for any reason:
(a) each party will be released from all obligations to the
other arising after the date of expiration or
termination, except that expiration or termination of
this Agreement will not relieve Consultant of its
obligations under Sections 2(b), 3,4,7,8(c) and 9, nor
will expiration or termination relieve Consultant or
Company from any liability arising from any breach of
this Agreement; and
(b) Consultant will promptly notify Company of all
Confidential Information, including but not limited to
the Designs and Materials, in Consultant's possession
and, at the expense of Consultant and in accordance with
Company's instructions, will promptly deliver to Company
all such Confidential information.
7. LIMITATION OF LIABILITY. IN NO EVENT SHALL COMPANY BE LIABLE FOR
ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OF
ANY KIND IN CONNECTION WITH THIS AGREEMENT, EVEN IF COMPANY HAS
BEEN INFORMED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES.
8. COVENANTS.
(a) COMPETITIVE ACTIVITIES. Consultant will not during the
term of this Agreement, directly or indirectly, in any
individual or representative capacity, engage or
participate in or provide services to any business that
is competitive with the types and kinds of business
being conducted by Company.
(b) PRE-EXISTING OBLIGATIONS. Consultant represents and
warrants that Consultant is not under any pre-existing
obligation inconsistent with the provisions of this
Agreement.
(c) SOLICITATION OF EMPLOYMENT. Because of the trade secret
subject matter of Company's business, Consultant agrees
that it will not solicit the services of any of the
employees, consultants, suppliers or customers of
Company for the Period of Consultancy and for six (6)
months thereafter.
9. GENERAL.
(a) ASSIGNMENT. Consultant may not assign Consultant's
rights or delegate Consultant's duties under this
Agreement either in whole or in part without the prior
written consent of Company. Any attempted assignment or
delegation without such consent will be void.
(b) EQUITABLE REMEDIES. Because the Services are personal
and unique and because Consultant will have access to
Confidential Information of Company, Company will have
the right to enforce this Agreement and any of its
provisions by injunction, specific performance or other
equitable relief without prejudice to any other rights
and remedies that Company may have for a breach of this
Agreement.
(c) ATTORNEY'S FEES. If any action is necessary to enforce
the terms of this Agreement, the substantially
prevailing party will be entitled to reasonable
attorneys' fees, costs and expenses in addition to any
other relief to which such prevailing party may be
entitled.
(d) GOVERNING LAW; SEVERABILITY. This Agreement will be
governed by and construed in accordance with the laws of
the State of California excluding that body of law
pertaining to conflict of laws. If any provision of this
Agreement is for any reason found to be unenforceable,
the remainder of this Agreement will continue in full
force and effect.
(e) NOTICES. Any notices under this Agreement will be sent
by certified or registered mail, return receipt
requested, to the address specified below or such other
address as the party specifies in writing. Such notice
will be effective upon its mailing as specified.
(f) COMPLETE UNDERSTANDING; MODIFICATION. This Agreement,
together with each version of Exhibit A executed by the
parties, constitutes the complete and exclusive
understanding and agreement of the parties and
supersedes all prior understanding and agreements,
whether written or oral, with respect to the subject
matter hereof. Any waiver, modification or amendment of
any provision of this Agreement will be effective only
if in writing and signed by the parties hereto.
IN WITNESS WHEREOF, the parties have signed this Agreement as of the
Effective Date.
COMPANY CONSULTANT:
By: /s/ Richard M. Noling By: /s/ Albert E. Sisto
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Title: CEO Title: Director
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- ------------------------------------ Federal Tax I.D. Number:
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Address: 41300 Christy St. Address: 1105 Via Roble
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Fremont, CA 94538 Lafayette, CA 94549
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EXHIBIT A
PROJECT DESCRIPTION
This Project Description is issued under and subject to all of the terms and
conditions of the Consulting Agreement dated as of December 28, 1998 by and
between Company and Albert Sisto.
1. Services to be performed and results to be achieved:
Sales consulting, Sales training, Sales contacts and such
other duties as are from time to time agreed to.
2. Half-Day Consulting Rate: $500
3. Maximum Number of Days: Seventy (70)
4. Maximum Consulting Fee: $35,000
5. Start Date: 12/28/98
6. Sales Bonus: Q1 1999 - $5,000 for each qualifying
customer contract* signed in the assigned
geographic region (rate doubles for 3
plus contracts)
Q2 1999 - $2,000 for each qualifying
customer contract* signed in the
assigned geographic region (rate
doubles for 8 plus contracts)
AGREED AS OF 12/28 , 19 98
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COMPANY:
By: /s/ Richard M. Noling
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Title: C.E.O
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CONSULTANT:
By: /s/ Albert E. Sisto
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Title: Director
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*Qualifying customer contract defined as a contract with a value in excess of
$500,000 over the 2 years after signing by Insignia and the customer.