Exhibit
10.4


 


INDEPENDENT CONSULTING
AGREEMENT


 


THIS INDEPENDENT CONSULTING AGREEMENT (the “Agreement”) is made effective as of December 27, 2003 (the “Effective Date”),
between Trestle Holdings,
Inc., a Delaware corporation with a principal place of
business at 151 Shipyard Way, Newport Beach, California 92663 (“Trestle”), on the one hand, and Crosby
Haffner (“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, including without limitation, (i) MedMicroscopy RTTM, MedMicroscopy
SLTM, MedMicroscopy CLTM and other products developed from the same technology
for microscopy applications, (ii) MedReachTM and other products developed from
the same technology for telemedicine applications, (iii) MedScanner, (iv)
Digital Slide, (v) MedWorkflow, (vi) High Throughput Scanner, (vii) Quality
Control Image Analysis, and (viii) Tox Screen Image Analysis (the “Business”);
and


 


WHEREAS, Consultant wishes
to provide independent consulting services necessary to support management of
the underlying the Business, and Trestle wishes to hire Consultant as an
independent contractor in accordance with the terms and provisions of this
Agreement.


 


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.  Trestle
shall make no social security, workers compensation or unemployment insurance
payments on behalf of 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 March 31, 2004 (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,


 


1

















 


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
any single expense over $200.00 must be pre-approved by Trestle in writing.


 


4.                                       Confidentiality and Inventions
Agreement.  Consultant
agrees to be bound by, the terms of
that certain Confidentiality and Inventions Agreement (the “Inventions Agreement”) executed on or
about September 2, 2003, a form of which is attached hereto as Appendix B.


 


5.                                       Representations
and Warranties.  Consultant
represents and warrants that: (i) 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.


 


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 misconduct by
Consultant or its 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; provided, however, that a) Consultant’s indemnification of Trestle
shall be limited by the amount of compensation, in fees and warrants, received
by Consultant under this Agreement; and b) any indemnification claim by Trestle
against Consultant must be asserted by Trestle in writing, via certified mail
to Consultant, within six (6) months of the Term of 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 Consultant’s, or its employees, associates, consultants, agents,
representatives, assignees or successors in interest, grossly negligent or
willful act or omission.


 


7.                                       Termination.
This Agreement may be terminated by either Party for any reason upon giving
thirty (30) days’ advance written notice thereof to the other Party.  In addition, 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 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 and which has not been cured by Consultant within
five (5) days of written notice of such conduct; and (iii)
Consultant’s breach of any representation or warranty.


 


2

















 


8.                                       Effect of
Termination.  In the
event of any termination of this Agreement prior to completion of the Term, 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 Acquisition Corp.

  
	
   

  	
   

  	
  151 Shipyard Way

  
	
   

  	
   

  	
  Newport Beach, CA 92663

  
	
   

  	
   

  	
  Facsimile: (949) 673-1058

  
	
   

  	
   

  	
  Attention: Jack Zeineh, C.S.O.

  
	
   

  	
   

  	
   

  
	
  To Consultant:

  	
   

  	
  Crosby Haffner

  
	
   

  	
   

  	
  1401 Lucile Ave.

  
	
   

  	
   

  	
  Los Angeles, CA 90026

  
	
   

  	
   

  	
  Facsimile: (213) 477-2031

  



 


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


 


3

















 


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.


 


a.                                       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.


 


18.                                 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.


 


19.                                 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.


 


4

















 


IN WITNESS WHEREOF, the Parties have entered
into this Agreement as of the Effective Date written above.


 


	
   

  	
  TRESTLE HOLDINGS, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ GARY FREEMAN

  	
   

  
	
   

  	
   

  	
  Gary Freeman

  
	
   

  	
   

  	
  CFO

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ CROSBY HAFFNER

  	
   

  
	
  :

  	
  Name:

  	
  Crosby Haffner

  	
   

  
	
   

  	
  Its:

  	
   

  	
   

  



 


5

















 


APPENDIX A

TO INDEPENDENT CONSULTING AGREEMENT


 


Description of Work


 


1.                                       DETAILED
DESCRIPTION OF WORK:


 


Consultant
shall serve as Interim President.


 


2.                                       START DATE:  December 31, 2003


 


3.                                       COMPLETION
DATE:  March 31, 2004


 


4.                                       PERSON(S) WHO
ARE TO PERFORM THE WORK:


 


Crosby
Haffner.


 


5.                                       AUTHORIZED
REPRESENTATIVE OF THE TRESTLE:


 


The character of Consultant’s Services shall be subject to the
assignment and direction of Michael Doherty (“Director”) or other
representative of Trestle as directed by Trestle to the Consultant. Further,
the character and scope of Consultant’s Services may be revised by mutual
agreement between Consultant and Trestle and such revision will be evidenced by
a formal bilateral modification to the Consulting Agreement or this Description
of Work signed between Consultant and an officer of Trestle. The Director or
the Chief Financial Officer of Trestle shall be the only individual authorized
to direct the activities of Consultant.


 


6.                                       SCHEDULE PERFORMANCE:


 


If at any time during the
performance of this contract any phase 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 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.


 


7.                                       REPORT
SCHEDULE:


 


Consultant shall report
regularly to Director Consultant’s progress on the various projects and tasks
enumerated above.


 


6

















 


8.                                       PAYMENT
TERMS:


 


Consultant’s
only compensation will be $20,000 per month paid on or before the 15th
of such month and 37,500 warrants described in Appendix C.


 


9.                                       EXPENSES:


 


Trestle agrees to reimburse Consultant for the following:


 


	
   

  	
   

  	
  Yes

  	
   

  	
  No

  
	
  •  Routine
  out-of-pocket expense

  	
   

  	
  ý

  	
   

  	
  o

  
	
  •  Local
  travel (to and from home and Newport Beach)

  	
   

  	
  ý

  	
   

  	
  o

  
	
  •  Long
  distance travel at the direction of the Director or President

  	
   

  	
  ý

  	
   

  	
  o

  
	
  •  Other
  - as approved in advance

  	
   

  	
  ý

  	
   

  	
  o

  



 


7

















 


APPENDIX
B


 


CONFIDENTIALITY AND INVENTIONS AGREEMENT


 


8

















 


APPENDIX
C


 


WARRANT TO PURCHASE COMMON STOCK OF TRESTLE
HOLDINGS, INC.


 


9