EXHIBIT 99.3
PROFESSIONAL SERVICES AGREEMENT
THIS Agreement ("Agreement") is made this 18TH DAY OF JANUARY, 2006, (the
"Effective Date"), by and between Resources Connection, LLC, a Delaware limited
liability company doing business as Resources Global Professionals with its
principal place of business at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, and all entities wholly-owned by Resources Connection, LLC, or
its parent, Resources Connection, Inc. (collectively "Resources"), and
Microlslet, Inc., with its principal place of business at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇.
▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇ 92121("Client"), for professional services ("Services")
to be provided by Resources as more fully set forth in the annexed Statement(s)
of Services.
Any Services requested subsequent to the Effective Date of this Agreement or
individual amendments to the provisions herein, will be set forth in additional
Statements of Services, which shall be agreed to and acknowledged, in writing,
by both parties.
1. INDEPENDENT CONTRACTOR STATUS
Resources is an independent contractor of Client, and the professionals provided
hereunder by Resources to Client are Resources' employees. In certain
circumstances, such professionals are independent contractors who have
contracted with Resources. Resources will notify Client affumatively in the
applicable Statement of Services if such professional is an independent
contractor.
2. PERFORMANCE OF SERVICES
Resources will provide Client with professionals to perform Services on a
project or engagement basis. Client is responsible for the scope and nature of
the Services and the overall management and direction of the professionals'
performance working pursuant to this Agreement. As such, Client agrees to
provide, at its own cost and expense, reasonable working space and materials,
which may be necessary in connection with the performance by Resources of the
Services required pursuant to this Agreement. In addition, each Statement of
Services will summarize the scope of the engagement and any special services
provisions. The working papers prepared by Resources in connection with the
performance of Services will be the property of Client. Resources' professionals
shall not have the authority to act as an officer or director of Client or to
represent or obligate Client in any manner.
3. SERVICES AGREEMENT
This is a services agreement. Resources warrants that it will perform Services
hereunder in good faith. Since Client shall direct and manage the Services
provided hereunder, Resources makes no additional warranties, whether express,
implied, statutory or otherwise, including, without limitation, warranties of
merchantability, fitness for a particular purpose, quality, suitability or
otherwise with respect to any Services performed by its professionals in
connection with this Agreement, except as set forth in Section 4 below.
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4. REPRESENTATIONS AND WARRANTIES
Resources further represents and warrants as follows:
(a) Resources shall recruit, interview, qualify, select and hire the
professionals who shall provide the Services hereunder. As the employer,
Resources will: (i) supply only individuals legally authorized to work in the
United States and complete and maintain 1-9 forms in compliance with the
Immigration Reform and Control Act of 1986; (ii) conduct background checks to
ensure its professionals have no felony convictions during the past seven years
by county of residence; (iii) maintain all necessary personnel and payroll
records for its professionals; (iv) calculate its employees wages and withhold
applicable taxes, Social Security and other government-mandated charges; and (v)
remit such employment-related taxes and charges to the appropriate governmental
entity.
(b) The Services will be performed using professionals qualified and suitable to
perform the Services requested. Resources' professionals have the capability,
experience, and means necessary to perform the Services contemplated by this
Agreement. If such Services are not performed satisfactorily, Client shall
notify Resources within ten (10) days of the particular Services being performed
to negotiate an appropriate credit, if any, of the fees incurred.
(c) Resources shall have sole responsibility to counsel, discipline, review,
evaluate, set the pay rates of, and terminate its professionals assigned to
provide Services to Client.
(d) Resources will perform the Services in a diligent and workmanlike manner in
accordance with accepted professional practices.
(e) Resources shall comply with all applicable federal, state, and local laws,
rules, regulations, codes, ordinances and orders, including but not limited to
all laws and regulations applicable to Resources' professionals. Resources has
in effect and will maintain in effect all permits, licenses, and other
authorizations necessary for the performance of the Services.
(f) Resources and its professionals will observe Client's rules as the same are
made known to Resources, including without limitation, those rules involving
health, safety, the environment, and security, when working at or around any of
Client's facilities.
(g) Resources, at the request of Client for any reason that is not unlawful,
will remove any of its professionals assigned to perform Services for Client.
This in no way affects the right of Resources, in its sole discretion as
employer, to hire, assign, reassign and/or terminate the employment of its own
professionals.
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5. MUTUAL INDEMNIFICATION AND LIMITATION OF LIABILITY
Neither Resources nor Client shall be liable for consequential, special,
indirect, incidental, punitive, or exemplary loss, damage, cost or expense
(including, without limitation, lost profits and opportunity costs). The maximum
total liability of each party, its personnel and agent and its parent and any
affiliate or subsidiary, to the other for any actions, losses, damages, claims,
liabilities, costs or expenses in any way arising out of or relating to this
Agreement, shall not exceed the fees paid by Client to Resources hereunder for
the portion of Resources' Services or work product giving rise to such
liability. Each party agrees to indemnify and hold harmless the other and its
personnel, agents, officers and directors and its parent and any affiliate or
subsidiary and any employee or affiliate of the other from and against any and
all actions, losses, damages, claims, liabilities, costs or expenses (including,
without limitation, reasonable legal fees) in any way arising out of or relating
to this Agreement brought by a third party, except to the extent finally
determined to have resulted from the intentional misconduct or gross negligence
of the party seeking indemnification. The provisions of this paragraph shall
apply regardless of the form of action, loss, damage, claim, liability, cost, or
expense, whether in agreement, statute, tort (including, without limitation,
negligence), or otherwise. The provisions of this paragraph shall survive the
completion or termination of this Agreement.
6. CONFIDENTIALITY
Resources and its personnel will preserve the confidential nature of information
received from Client in accordance with Client's established policies and
practices, copies of which will be provided to Resources and acknowledged by
each professional performing Services for Client (or, if no such policies are
provided by Client, with Resources' written policies, a copy of which will be
provided to Client upon request).
The obligations of Confidential Information shall not apply to information which
(i) is or becomes publicly available by means other than a breach hereof
(including, without limitation, any information filed with any governmental
agency and available to the public); (ii) is known to, or rightfully in the
possession of, the recipient at the time of disclosure without breach or
violation of any confidentiality agreement; (iii) thereafter becomes known to or
comes into the possession of the recipient from a third party that the recipient
reasonably believes is not under any obligation of confidentiality to the
disclosing party and is lawfully in the possession of such information; (iv) is
developed by the recipient independently of any disclosures previously made by
the disclosing party to the recipient; or (v) is required to be disclosed by
order, or the process, of a court of competent jurisdiction, administrative
agency or governmental body, or by subpoena, summons or other legal process, or
by law, rule or regulation, or by applicable or professional standards, provided
that prior to such disclosure by the recipient the disclosing party is given
reasonable advance notice of such order or legal process and an opportunity to
object to such disclosure.
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7. PAYMENT FOR SERVICES
Fees for the Services provided under this Agreement are based on the billing
rates set forth in the applicable Statement of Services. Client will reimburse
Resources for actual expenses incurred by Resources' professionals in connection
with the performance of Services. Fees and applicable expenses will be billed
weekly, payable upon receipt of Resources' invoices. If the Statement of
Services provides for Client to pay a retainer prior to the commencement of
Services, fees will not be billed against the retainer. Resources reserves the
right to collect interest or other penalty from Client for promptly submitted
invoices upon which payment is not received within thirty (30) days of Client's
receipt of such invoice. Specifically, Resources shall be entitled to a late
charge of the lesser of (i) 1 1/2 % per month or (ii) the highest rate allowable
by law, in each case compounded monthly to the extent allowable by law.
Resources further reserves the right to withdraw all professionals provided to
Client and to cease performing Services hereunder if any invoice is not promptly
paid when due.
If the Services requested are to be performed and/or invoiced outside the United
States, the parties shall execute an applicable Statement of Services that will
set forth alternative billing, payment and applicable tax provisions.
8. TAXES ON THE PURCHASE OF SERVICES
If the Services performed pursuant to this Agreement are taxed by the State in
which they are performed (as designated on the applicable Statement of
Services), Client agrees it shall be responsible for all such taxes arising
under this Agreement, including, without limitation, state and local privilege,
excise, sales and use taxes paid or payable by Resources, except any tax based
on Resources' net income or property. The tax obligation shall flow to Client,
however designated, and be in addition to any charges payable hereunder.
9. ASSIGNMENT AND DELEGATION
Neither party shall assign or delegate this Agreement or any rights, duties or
obligations hereunder without the express written consent of the other. Subject
to the foregoing, this Agreement shall inure to the benefit of and be binding
upon the successors, legal representatives and assignees of the parties hereto.
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10. INSURANCE
The Services provided by Resources are covered under the following polices, and
in the amounts listed below:
Limit Limit terms
Policy Type
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Workers' Compensation or similar law $ ,000,000 Each Accident
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Commercial General Liability $1,000,000 Per occurrence/$2,000,000
aggregate
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Business Auto (non-owned, hired auto) $1,000,000 Combined single limit
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All Risk Property 3,022,500 Blanket limit per loss
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Professional Liability $10,000,000 Aggregate
(professional services/internal
consulting)
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Umbrella Liability $20,000,000 Per occurrence/ aggregate
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Employee Dishonesty $3,000,000 Per occurrence/aggregate
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A Certificate of Insurance, naming the Client as an additional insured, will be
provided upon request.
11. RECORD RETENTION, AUDITS AND INSPECTIONS
Resources shall make all Client-related financial records in Resources'
possession or under Resources' control available for Client's examination upon
at least five (5) business days prior written notice, during Resources' regular
business hours during the term of this Agreement and for a period of three (3)
years after the termination of such.
12. NON-SOLICITATION
Client, for itself and on behalf of its parent, subsidiaries and affiliates,
agrees that it will not hire or contract for services with, either directly or
through a third party, any professionals provided hereunder prior to the later
of a period of one year from the Effective Date, and (ii) six months after the
completion of such professional's engagement, without first notifying Resources.
In the event that Client does hire or contract with, either directly or through
a third party, any such professional in any capacity within tile period
referenced above, Client agrees to pay Resources a penalty, liquidated damages
fee equal to 25% of such person's annualized salary or contracted fee. The
parties agree, however, nothing contained herein will prevent either party from
hiring any person who is employed by the other who responds to a general public
hiring program conducted in the ordinary course of business or who approaches
the hiring party on a wholly unsolicited basis.
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13. NON-EXCLUSIVE RIGHTS
Nothing in this Agreement shall preclude or limit either party from
independently acquiring or developing competitive products or services for
itself or its clients or customers, or from providing competitive products or
services to its clients or customers, so long as such party does not breach the
obligations it has assumed under this Agreement, including the confidentiality
obligations, or otherwise violate the rights of the other party.
14. TERMINATION OF THE AGREEMENT
This Agreement may be terminated by either party upon thirty (30) days` prior
written notice to the other party; provided, however, the Confidentiality,
Non-Solicitation, Records Retention, Audit and Inspection, Mutual
Indemnification and Limitation on Liability and Taxes on the Purchase of
Services provisions shall survive indefinitely the termination of this
Agreement.
15. ACCEPTANCE
By accepting the Services of Resources' professionals hereunder, Client is
deemed to have consented to the material terms set forth herein.
16. MODIFICATIONS The terms of this Agreement may be modified only by a writing
signed by both parties.
17. NOTICE
Any notice required to be given by this Agreement shall be delivered personally
or sent by telecopy, overnight courier or first class mail, postage prepaid, to
the following address:
To Resources:
Resources Global Professionals ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Legal Department
Fax: ▇▇▇-▇▇▇-▇▇▇▇
To Client:
Microlslet, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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18. WAIVER
No waiver of or failure to enforce any term of this Agreement or Statement of
Services shall affect or limit a party's right thereafter to enforce and compel
strict compliance with every term thereof
19. HEADINGS
The headings in this Agreement are for the purposes of convenience and ready
reference only and shall not be deemed to expand or limit the particular
sections to which they pertain.
20. SEVERABILITY
In the event any part of this Agreement shall be judged invalid or
unenforceable, such invalidity or unenforceability shall not affect the
remaining provisions of this Agreement.
21. ENTIRE AGREEMENT
This Agreement and the Statement(s) of Services attached hereto represent the
entire understanding between the parties. In the event of any conflict between
the terms of this Agreement and any Statement of Services, the terms of the
governing Statement of Services shall control.
22. GOVERNING LAW
The validity, construction, enforcement, and interpretation of this Agreement
shall be governed by the substantive laws of the State of California.
IN WITNESS WHEREOF, the parties hereto do hereby execute this Agreement
as of the Effective Date.
RESOURCES GLOBAL PROFESSIONALS CLIENT
By:___________________________ By:_______________________________
Title: Manain Director Title:____________________________
Date:_________________________ Date:_____________________________
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STANDARD
RESOURCES GLOBAL PROFESSIONALS
STATEMENT OF SERVICES NUMBER 1
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RESOURCES ENTITY Resources Global Professionals
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CLIENT COMPANY NAME Microlslet, inc.
AND ADDRESS ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
(FOR BILLING PURPOSES) ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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DATE OF ORIGINAL AGREEMENT January 18, 2006
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CLIENT CONTACT ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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BILLING CONTACT ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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DESCRIPTION OF ENGAGEMENT Interim CFO
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SCOPE OF SERVICES Resources' Services will not constitute an
engagement to provide audit or attestation
services as described in the pronouncements
on professional standards issued by the
AICPA and, accordingly, Resources will not
provide any assurance concerning the
reliability of any assertion that is the
responsibility of another party.
The Services provided hereunder will not
result in the issuance of any written or
oral communications by Resources to Client
to any third party expressing a conclusion
or any form of assurance with respect to
financial data or internal controls.
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ENGAGEMENT LENGTH Approximately 2-3 months, or as needed.
Client agrees to provide Resources with 21
days notice of the termination of this
Statement of Services. In lieu of such
notice, Client agrees to pay Resources an
amount equal to the average weekly invoice
for 3 weeks.
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ASSOCIATE ASSIGNED ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇
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START DATE TBD
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Retainer Given that this is the first engagement
between Resources and Client, Resources
requires Client to submit a $6,200.00
retainer to Resources at least three
business days prior to the start of the
engagement. Fees will not be billed against
the retainer. When the engagement has been
completed, the retainer will be returned to
Client, provided all outstanding invoices
have been paid.
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NON-SOLICITATION As more fully set forth in the original
contract, Client will not hire any
professionals provided hereunder prior to
the later of (i) one year from the Effective
Date, and (ii) six months after completion
of such professional's project, without
notifying Resources. If Client hires any
such professional within such period Client
agrees to pay Resources a penalty fee of 25%
of such person's annualized salary or
contracted fee. This will not prevent either
party from hiring any person who responds to
a general public hiring program conducted in
the ordinary course of business or who
approaches the other party on a wholly
unsolicited basis.
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BILLING RATE AND $ 155.00 per hour
BILLING INSTRUCTIONS $ 232.50 for each hour in
excess of 8 hours per day or 40 hours per
week, and thereafter in accordance with
California State Law.
Travel Time: No
Expenses billed to the client:
[ ]all [ ] none [ ]other
Expenses as follows (if necessary): Actual
airfare, hotel accommodation and rental
car/ or mileage allowance Meals and other
incidentals not to exceed $75.00 per day
The rates listed above are subject to
review should the scope of the engagement
change significantly, or should the
engagement extend beyond one year from its
commencement.
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On behalf of Client:
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Print Name:
Title:
Date:
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On behalf of Resources:
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Print Name: ▇▇▇▇ ▇▇▇▇
Title: Managing Director
Date:
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