Exhibit 10.1


 


CONSULTANCY AGREEMENT AND RELEASE.


 


1.                                       Parties:  The parties to this Consultancy Agreement
and Release (“AGREEMENT”) are:


 


a.                                       TRESTLE
HOLDINGS, INC., a Delaware corporation and its related companies, including but
not limited to Trestle Corporation, Sunland Entertainment Co., Inc. and Trestle
Acquisition Corp. (collectively “TRESTLE”); and


 


b.                                      ANDREW
BORSANYI (“BORSANYI”).


 


TRESTLE
and BORSANYI are collectively referred to in this AGREEMENT as the “PARTIES.”


 


2.                                       Recitals:  This AGREEMENT is entered into with
reference to the following facts:


 


a.                                       TRESTLE
employs BORSANYI as its President pursuant to that certain Employment Agreement
dated as of May 20, 2003 (“EMPLOYMENT CONTRACT”).


 


b.                                      Effective
October 31, 2003, BORSANYI shall voluntarily resign his employment with
TRESTLE, and, on that date, cease to be an employee of TRESTLE.  Effective that same date, BORSANYI shall
resign as a member of the Board of Directors of TRESTLE.  On the effective date of his resignation,
BORSANYI shall receive all the salary and benefits (including but not limited
to accrued and vested vacation pay) to which he is at that time entitled as a
TRESTLE employee.  In addition, TRESTLE
shall, on that date: (a) reimburse BORSANYI for all expenses theretofore
reasonably and properly incurred by him on behalf of TRESTLE; (b) In addition, TRESTLE shall, on that date: (a)
reimburse BORSANYI for all expenses theretofore reasonably and properly
incurred by him on behalf of TRESTLE; and (b) transfer to BORSANYI ownership of
the laptop computer used by him during the course of his employment with
TRESTLE, provided however that BORSANYI shall allow TRESTLE to make a copy of
all information contained on such laptop computer prior to such transfer of
ownership.  The PARTIES have
agreed that this AGREEMENT will supersede the EMPLOYMENT CONTRACT which shall
be null and void as of the date of execution by the PARTIES of this AGREEMENT.


 


c.                                       In
consideration of his contribution to TRESTLE as an employee, and in
consideration of the terms and conditions of this AGREEMENT, TRESTLE has hired
BORSANYI as an independent contractor and consultant to TRESTLE in accordance
with the terms and conditions of this AGREEMENT.


 


d.                                      The
PARTIES intend this AGREEMENT to resolve any dispute between them finally and
forever pertaining in any way to any claim that BORSANYI has or may have


 

















 


arising from or related to his employment with TRESTLE or the
termination of that employment or the EMPLOYMENT CONTRACT (“BORSANYI’s RELEASED
CLAIMS”).


 


e.                                       The
PARTIES intend this AGREEMENT to resolve any dispute between them finally and
forever pertaining in any way to any claim that TRESTLE has or may have arising
from or related to BORSANYI’s employment with TRESTLE or the termination of
that employment or the EMPLOYMENT CONTRACT (“TRESTLE’s RELEASED CLAIMS”).


 


3.                                       Specific
Release:


 


a.                                       In
consideration of the terms and provisions of this AGREEMENT, the sufficiency of
which is acknowledged by the execution of this AGREEMENT, and except as
provided in this AGREEMENT, BORSANYI shall, and by this AGREEMENT does, fully
and forever relieve, release, and discharge TRESTLE and any of their respective
parents, subsidiary and affiliated companies, successors, assigns, owners,
directors, officers, partners, employees, employee benefit plans or
fiduciaries, agents, and stockholders, and each of them, and any and all
related individuals and entities, if any, in any and all capacities, of any and
all debts, liabilities, demands, obligations, promises, acts, contracts, costs,
expenses, attorneys’ fees, damages, actions, and causes of action of every
nature, character, and description arising out of, in connection with, or
relating to BORSANYI’s RELEASED CLAIMS, including but not limited to any claim
under federal, state, or local law of discrimination on the ground of race,
age, national origin, gender, disability, sexual orientation, ancestry,
handicap, union membership, or marital or veteran status,  or of any common law or statutory claim of
unpaid wages, benefits, or vacation pay, or of wrongful termination, or
constructive wrongful termination, or any other adverse action arising from
employment (including but not limited to any claim for emotional distress,
wages, bonus pay, severance pay, vacation pay, holiday pay, stock options, stock
purchase or sale, or other fringe benefit).


 


b.                                      BORSANYI
further agrees that, except for purposes of enforcing this AGREEMENT, he shall
not in the future institute any grievance, suit, charge, complaint, claim, or
cause of action at law, in equity, or otherwise, against TRESTLE in any court
of the United States or any state, or before any administrative agency of
either the United States (except the Equal Employment Opportunity Commission)
or any state, county or municipality, or before any other arbitrator or panel
of arbitrators or tribunal, public or private, in the United States or in any
other country, arising out of, in connection with, or relating to BORSANYI’s
RELEASED CLAIMS, or any part of those claims.


 


c.                                       BORSANYI
affirms by executing this AGREEMENT that he has filed no charge with the United
States Equal Employment Opportunity Commission (“EEOC”) against TRESTLE related
to or arising out of BORSANYI’s employment with TRESTLE or the termination of
that employment.  BORSANYI further
agrees he will not personally recover monies as a consequence of filing any
future charge with the EEOC against TRESTLE. 
Nothing in this AGREEMENT, however, shall restrict BORSANYI’s ability to
testify in any suit, hearing, or investigation which BORSANYI has not personally
commenced and that testimony is compelled by subpoena or other operation of
law.  BORSANYI further affirms that he
has not filed and does not intend to file any claim for any work-related injury
or other injury subject to the California workers’ compensation scheme and
benefits.


 


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d.                                      In
consideration of the terms and provisions of this AGREEMENT, the sufficiency of
which is acknowledged by the execution of this AGREEMENT, and except as
provided in this AGREEMENT, TRESTLE shall, and by this AGREEMENT does, fully
and forever relieve, release, and discharge BORSANYI of any and all debts,
liabilities, demands, obligations, promises, acts, contracts, costs, expenses,
attorneys’ fees, damages, actions, and causes of action of every nature,
character, and description arising out of, in connection with, or relating to
TRESTLE’s RELEASED CLAIMS.


 


e.                                       TRESTLE
further agrees that, except for purposes of enforcing this AGREEMENT, it shall
not in the future institute any grievance, suit, charge, complaint, claim, or
cause of action at law, in equity, or otherwise, against BORSANYI in any court
of the United States or any state, or before any administrative agency of
either the United States or any state, county or municipality, or before any
other arbitrator or panel of arbitrators or tribunal, public or private, in the
United States or in any other country, arising out of, in connection with, or
relating to TRESTLE’s RELEASED CLAIMS, or any part of those claims.


 


4.                                       Obligations
of Parties:


 


a.                                       In
consideration of the terms and conditions of this AGREEMENT, TRESTLE shall
employ BORSANYI as a non-exclusive consultant to TRESTLE for one year on the
following terms and conditions commencing on the date both PARTIES execute this
AGREEMENT:


 


(i)                                     BORSANYI
shall make himself available on reasonable notice,  for the equivalent of two days each month, to the Board of
Directors of TRESTLE to consult on, discuss, or review any aspect of TRESTLE’s
continuing business, at the reasonable request of the Board of Directors of
TRESTLE and as conveyed to BORSANYI by the Chairman of the Board or anyone that
the Chairman of the Board or the Board may designate, provided, however, that
any services so requested shall be consistent and commensurate with duties
performed by senior executives at TRESTLE.


 


(ii)                                  In
the event that, during the one-year consultancy period, BORSANYI shall become
employed on a full-time basis by another employer other than TRESTLE,
BORSANYI’s obligation to consult for TRESTLE pursuant to Paragraph 4(a)(1)
above shall be subject to modification in a manner to be agreed at that time
between BORSANYI and TRESTLE.  In any
event, regardless of BORSANYI’s availability to continue to consult for TRESTLE
because of  BORSANYI’s commitments to
his new employer, the terms and conditions of this AGREEMENT shall continue to
apply, and TRESTLE shall continue to retain and pay BORSANYI as a consultant
through the balance of the one-year period in accordance with this AGREEMENT.


 


(iii)                               As
a consultant, BORSANYI shall have no responsibilities as an officer or director
of TRESTLE.  Any and all consulting work
that BORSANYI may perform for TRESTLE shall be at the direction of the Board of
Directors of TRESTLE.  Nothing shall
require TRESTLE to make any use of BORSANYI’s consultant services at any time.


 


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(iv)                              During
the period of his consultancy, TRESTLE shall pay BORSANYI twelve
consecutive  monthly installments each
equal to $16,666.66 (for a total payment of $200,000).  Each monthly installment shall be payable on
or before the 15th day of the month in which it becomes due.  The first installment shall become due on or
before November 15, 2003.  The
final installment shall become due on or before October 15, 2004.  As an independent consultant, BORSANYI shall
be responsible for all federal and state tax and other obligations on these
amounts.


 


(v)                                 Pursuant
to TRESTLE’s customary policies in force at the time of execution of this
AGREEMENT, BORSANYI shall be reimbursed promptly for all authorized expenses
properly and reasonably incurred by him on behalf of TRESTLE in the performance
of his duties hereunder upon presentation of appropriate documentation
consistent with TRESTLE’s policies concerning expense reimbursement


 


(vi)                              For
the one-year period of the consultancy only, BORSANYI shall be eligible to
continue to receive the same health and dental benefits that he would have
received had his employment continued under the EMPLOYMENT CONTRACT, except
that these health and dental benefits shall cease sooner if, and as of the date
when, BORSANYI accepts employment with another employer who provides health
benefits (whether or not that employer’s health and/or dental benefits, if any,
are equal to, better, or inferior to the benefits offered by TRESTLE).  Except for health and dental benefits, or as
otherwise provided in this AGREEMENT, BORSANYI shall not be entitled to any
other benefits during the one-year consultancy period or at any other time,
including, but not limited to, eligibility for any paid vacation.


 


(vii)                           During
the effective term of his consulting agreement with TRESTLE and for a period of
three years following the execution of the AGREEMENT by the PARTIES, BORSANYI
shall not, directly or indirectly, solicit or approach for employment with any
other entity or employer any current employee or officer or director of
TRESTLE, or anyone who was an employee, officer or director of TRESTLE within
the six months before the solicitation or approach.


 


(viii)                        Except
only if permanently employed on a full-time and paid basis, during the one-year
term of his consultancy with TRESTLE, BORSANYI shall not accept employment
with, or engage in or become financially interested in (whether as an employee,
individual, owner, partner, officer, director, joint venturer, principal,
lender, agent, trustee, advisor, consultant, or shareholder owning more than
0.1 percent of the corporation’s total stock) any entity or sole proprietorship
doing business in any county within any county in California or in any of the
states of the United States or any country outside of the United States and
which finances, promotes, manufactures, distributes, sells, or solicits sales
and purchases of any product in pathology or microscopy imaging or
telemedicine, or any other entity in which TRESTLE has a controlling financial
interest.  Nothing in this AGREEMENT
shall prevent BORSANYI from accepting full-time paid employment with any entity
during the term of the consultancy, and the acceptance of any such employment
(including employment by a competitor of TRESTLE as defined above) shall not
change TRESTLE’s obligation to pay BORSANYI in accordance with
Section 4(a)(ii) above.


 


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(ix)                                Whether
or not BORSANYI is still a consultant for TRESTLE pursuant to this AGREEMENT,
the restrictions on the dissemination, disclosure, or release of the
proprietary and/or confidential information, inventions, or trade secrets of
TRESTLE, whether set forth in the EMPLOYMENT CONTRACT or any other agreement to
which BORSANYI is a party, or which result from his fiduciary obligations while
an officer or director of TRESTLE, shall forever remain in full force and
effect.


 


(x)                                   No
later than November 7, 2004, except only for the laptop computer
referenced in Section 2 above, Borsanyi shall deliver (or arrange to be
delivered) to the Trestle offices in Newport Beach, California any of Trestle’s
property, equipment, documents, records, or files (including but not limited to
notes, memoranda, customer lists, reports, including any copies, whether in
hard copy form or on a computer disk or otherwise), which are in his
possession, custody, or control (“Trestle Property, Records and Files”).  Borsanyi shall not retain any Trestle
Property, Records and Files.


 


b.                                      TRESTLE
has granted certain restricted stock option rights to BORSANYI in consideration
of his employment with TRESTLE. 
Effective as of the date of execution of this AGREEMENT, BORSANYI shall
not be entitled to any such stock option rights which have not then
vested.  BORSANYI will be granted a
warrant for the purchase of  50,000
shares of common stock with the attributes as described and on the terms set
forth in that certain Warrant to Purchase Common Stock of Trestle Holdings,
Inc., Dated October 31, 2003 and attached hereto as Exhibit A.


 


c.                                       The
PARTIES shall agree on the text of a press statement, to be released when
appropriate, which announces the termination of BORSANYI’s employment and which
is in a form required to satisfy TRESTLE’s obligations to its shareholders and
otherwise as mandated by federal or state law.


 


d.                                      In
any communication or conversation BORSANYI may have at any time with any actual
or potential customer, supplier, vendor, or financier of TRESTLE, BORSANYI
shall not disparage, or otherwise defame, denigrate or malign TRESTLE or any
employee, officer, or director of TRESTLE. 
In any communication or conversation any officer or director of TRESTLE
may have at any time with any person concerning BORSANYI or his suitability for
employment, TRESTLE shall not disparage, or otherwise defame, denigrate or
malign BORSANYI.


 


5.                                       Waiver
of California Civil Code Section 1542:  The PARTIES acknowledge that they have been advised by legal
counsel and are familiar with the provisions of California Civil Code
Section 1542, which provides as follows:


 


“A general release does
not extend to claims which the creditor does not know or suspect to exist in
his favor at the time of executing the release, which if known by him must have
materially affected his settlement with the debtor.”


 


Pursuant
to this statute, as well as any other statutes or common law principles,
whether of federal or state origin, of similar effect, the PARTIES each
expressly waive any rights with respect to any claims relating to or arising
from BORSANYI’s RELEASED CLAIMS and from


 


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TRESTLE’s RELEASED CLAIMS and which any of the PARTIES may have.  In connection with such waivers, the PARTIES
each acknowledge that they are aware that he, it, or they may later discover
claims presently unknown or unsuspected, or facts in addition to or different
from those which it or they now know or believe to be true, with respect to the
matters released by this AGREEMENT. 
Nevertheless, it is the intention of the PARTIES, and each of them,
through this AGREEMENT, fully, finally and forever to settle and release all
such claims and/or facts.


 


6.                                       Representations
and Warranties:  The PARTIES each
represents and warrants to the other and agree with each other as follows:


 


a.                                       Each
party states that he or it does not rely upon any statement, representation, or
promise of any other party in executing this AGREEMENT except only such
statements, representations, or promises expressly set forth in this AGREEMENT.


 


b.                                      Each
party was duly represented by counsel (or had the opportunity to be represented
by counsel) in connection with this AGREEMENT and acknowledges that his or its
counsel had actual authority to negotiate this AGREEMENT, and that the
AGREEMENT was drafted jointly by the PARTIES and their respective counsel.  Further, each party acknowledges that he or
it has carefully read and reviewed this AGREEMENT with counsel, and understands
it fully.


 


c.                                       This
AGREEMENT is the result of an arm’s-length negotiation between the PARTIES
and/or their agents knowledgeable in the matters resolved by this AGREEMENT.


 


d.                                      The
PARTIES each represents and warrants that it is the sole and lawful owner of
all rights, title, and interest in and to every claim and other matters
released in this AGREEMENT, and that it has have not otherwise previously
assigned or transferred, nor purported to assign or transfer, to any person or
entity, any claims or other matters released.


 


e.                                       The
PARTIES and their attorneys have made such investigation of the facts
pertaining to this AGREEMENT as each deems necessary.


 


f.                                         The
PARTIES each represent and warrant that he or it has been duly authorized by
all necessary corporate action to enter into this AGREEMENT, and that the
individual signing on behalf of each of the PARTIES has been authorized to do
so.


 


g.                                      BORSANYI
represents and warrants that he is the sole owner of BORSANYI’S RELEASED
CLAIMS, and that these claims have not been sold, assigned, transferred,
conveyed, licensed or otherwise disposed of at any time nor claimed or
adjudicated to belong to another party.


 


7.                                       Successors
and Assigns:  This AGREEMENT shall
be binding upon and shall inure to the benefit of the heirs, assigns,
licensees, successors, and transferees of the PARTIES, whether by inheritance,
license, sale, merger, reverse merger, sale of stock, insolvency, sale of
assets, operation of law, or otherwise.


 


8.                                       No
Admission of Liability:  The PARTIES
have entered into this AGREEMENT for the purpose of settling disputes arising
out of the PARTIES’ respective claims, and to avoid


 


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the expense and uncertainty of litigation.  This AGREEMENT does not constitute an admission by either TRESTLE
or BORSANYI of any merit or lack of merit in the claims released in this
AGREEMENT.


 


9.                                       Severability:
In the event that any provision or part of any provision of this AGREEMENT
shall be held to be void, voidable, or unenforceable, the remaining portions of
the AGREEMENT shall all nevertheless remain in full force and effect.


 


10.                                 Execution
in Counterparts:  This AGREEMENT may
be executed and delivered in two or more counterparts, each of which, when so
executed and delivered shall be an original.


 


11.                                 Choice
of Law:  This AGREEMENT shall be
construed in accordance with, and be governed by, the laws of the State of
California.


 


12.                                 Attorneys’
Fees:  The PARTIES shall each bear
all their own attorneys’ fees and costs incurred in resolving this dispute and
in the preparation and execution of this AGREEMENT.


 


13.                                 Costs
of Any Future Litigation:  In the
event that any of the PARTIES brings any legal proceeding of any kind arising
out of, relating to, or to enforce any term of this AGREEMENT, the prevailing party
in any such legal proceeding shall be entitled to its reasonable attorneys’
fees and costs.


 


14.                                 No
Modification:  This AGREEMENT may
not be modified or amended or waived, in whole or in part, except only if the
modification, amendment, or waiver is set forth in writing and is executed by
each of the PARTIES to this AGREEMENT.


 


15.                                 Confidentiality:


 


a.                                       Except
only as may be necessary to enforce this AGREEMENT, or as may be required
pursuant to the terms of Section 4(c) above, the terms and conditions of
this Agreement shall remain confidential, and shall not be disclosed to any
person or entity, except only: 
(i) to any governmental agency or court when compelled to do so; or
(ii) to any party’s accountant or attorney as required to render
professional services; or (iii) as required to inform an actual or
prospective purchaser of, or investor in, TRESTLE of the Company’s continuing
obligations.


 


b.                                      In
the event that any person should inquire of any of the PARTIES concerning
BORSANYI’s RELEASED CLAIMS, the party of whom the inquiry is made may refer to
the inquirer to the press statement, if any, issued pursuant to
Section 4(c) above, and may say the matter has been fully and finally
resolved between TRESTLE and BORSANYI, and may say no more.  In the event that any person or entity shall
inquire of TRESTLE or BORSANYI concerning the circumstances in which BORSANYI
left TRESTLE’s employment, the person responding shall say that BORSANYI quit
his employment with TRESTLE to explore other business opportunities, and that
he continues to provide consulting services for TRESTLE, and shall say no more.


 


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16.                                 Entire
Agreement:  This AGREEMENT expresses
the entire agreement of the PARTIES concerning the subject matter described in
paragraph 2 above.   No covenant,
agreement, representation, or warranty of any kind whatsoever has been made by
any of the PARTIES, except as specifically set forth in this AGREEMENT.  All prior discussions and negotiations have
been, and are, merged and integrated into, and are superseded by, this
AGREEMENT.  This AGREEMENT is expressly
intended to, and does, supersede the EMPLOYMENT CONTRACT and any other
agreement pertaining to BORSANYI’s employment by TRESTLE, and any such
agreement and the EMPLOYMENT CONTRACT are, as a result of this AGREEMENT,
rendered null and void.


 


IN
WITNESS of this AGREEMENT, the PARTIES and their respective counsel have
approved and executed this AGREEMENT on the dates set forth opposite their
respective signatures.


 


	
  Dated: October 31, 2003

  	
  ANDREW BORSANYI

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ Andrew
  Borsanyi

  
	
   

  	
   

  
	
  Dated: October 31, 2003

  	
  TRESTLE HOLDINGS, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ Gary
  Freeman

  



 


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