Exhibit 10.2
CAPSTONE TURBINE
CORPORATION
CONSULTING
AGREEMENT
This Consulting Agreement (“
Agreement ”) is entered into as of December 1,
2008, by and between Capstone Turbine Corporation (the “
Company ”) and Leigh Estus (“ Consultant
”). The Company desires to retain Consultant as an
independent contractor to perform consulting services for the
Company, and Consultant is willing to perform such services, on the
terms described below. In consideration of the mutual
promises contained herein, the parties agree as follows:
1 .
Services and
Compensation . Consultant agrees to
perform for the Company the services described in
Exhibit A (the “ Services ”), and the Company
agrees to pay Consultant the compensation described in
Exhibit A for Consultant’s performance of the
Services.
2.
Confidentiality
.
A .
Definition
.
“ Confidential
Information ” means any non-public
information that relates to the actual or anticipated business or
research and development of the Company, technical data, trade
secrets or know-how, including, but not limited to, research,
product plans or other information regarding Company’s
products or services and markets therefor, customer lists and
customers (including, but not limited to, customers of the Company
on whom Consultant called or with whom Consultant became acquainted
during the term of this Agreement), software, developments,
inventions, processes, formulas, technology, designs, drawings,
engineering and hardware configuration information, marketing,
finances or other business information. Confidential
Information does not include information that (i) is known to
Consultant at the time of disclosure to Consultant by the Company
as evidenced by written records of Consultant, (ii) has become
publicly known and made generally available through no wrongful act
of Consultant or (iii) has been rightfully received by
Consultant from a third party who is authorized to make such
disclosure.
B.
Nonuse and
Nondisclosure . Consultant will not,
during or subsequent to the term of this Agreement, (i) use
the Confidential Information for any purpose whatsoever other than
the performance of the Services on behalf of the Company or
(ii) disclose the Confidential Information to any third
party. Consultant agrees that all Confidential Information
will remain the sole property of the Company. Consultant also
agrees to take all reasonable precautions to prevent any
unauthorized disclosure of such Confidential Information,
including, but not limited to, informing each of Consultant’s
employees and contractors, if any, with access to any Confidential
Information of the terms of this provision. Without the
Company’s prior written approval, Consultant will not
directly or indirectly disclose to anyone the existence of this
Agreement or the fact that Consultant has this arrangement with the
Company.
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C.
Former Client
Confidential Information . Consultant agrees
that Consultant will not, during the term of this Agreement,
improperly use or disclose any proprietary information or trade
secrets of any former or current employer of Consultant or other
person or entity with which Consultant has an agreement or duty to
keep in confidence information acquired by Consultant, if
any. Consultant also agrees that Consultant will not bring
onto the Company’s premises any unpublished document or
proprietary information belonging to any such employer, person or
entity unless consented to in writing by such employer, person or
entity.
D.
Third Party
Confidential Information . Consultant recognizes
that the Company has received and in the future will receive from
third parties their confidential or proprietary information subject
to a duty on the Company’s part to maintain the
confidentiality of such information and to use it only for certain
limited purposes. Consultant agrees that, during the term of
this Agreement and thereafter, Consultant owes the Company and such
third parties a duty to hold all such confidential or proprietary
information in the strictest confidence and not to disclose it to
any person, firm or corporation or to use it except as necessary in
carrying out the Services for the Company consistent with the
Company’s agreement with such third party.
E.
Return of
Materials . Upon the termination
of this Agreement, or upon Company’s earlier request,
Consultant will deliver to the Company all of the Company’s
property, including but not limited to all electronically stored
information and passwords to access such property, or Confidential
Information that Consultant may have in Consultant’s
possession or control.
3.
Ownership
.
A.
Assignment
.
Consultant agrees that all copyrightable material, notes, records,
drawings, designs, inventions, improvements, developments,
discoveries and trade secrets conceived, discovered, developed or
reduced to practice by Consultant, solely or in collaboration with
others, during the term of this Agreement that relate in any manner
to the business of the Company that Consultant may be directed to
undertake, investigate or experiment with or that Consultant may
become associated with in work, investigation or experimentation in
the Company’s line of business in performing the Services
under this Agreement (collectively, “ Inventions ”), are the sole
property of the Company. Consultant also agrees to assign (or cause
to be assigned) and hereby assigns fully to the Company all
Inventions and any copyrights, patents, mask work rights or other
intellectual property rights relating to all
Inventions.
B.
Further
Assurances . Consultant agrees to
assist Company, or its designee, at the Company’s expense, in
every proper way to secure the Company’s rights in Inventions
and any copyrights, patents, mask work rights or other intellectual
property rights relating to all Inventions in any and all
countries, including the disclosure to the Company of all pertinent
information and data with respect to all Inventions, the execution
of all applications, specifications, oaths, assignments and all
other instruments that the Company may deem necessary in order to
apply for and obtain such rights and in order to assign and convey
to the Company, its successors, assigns and nominees the sole and
exclusive right, title and interest in and to all Inventions, and
any copyrights, patents, mask work rights or other intellectual
property rights relating to all Inventions. Consultant also
agrees that Consultant’s obligation to execute or cause to be
executed any such instrument or papers shall continue after the
termination of this Agreement.
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C.
Pre-Existing Material s. Subject to
Section 3.A , Consultant agrees that if,
in the course of performing the Services, Consultant incorporates
into any Invention developed under this Agreement any pre-existing
invention, improvement, development, concept, discovery or other
proprietary information owned by Consultant or in which Consultant
has an interest, (i) Consultant will inform Company, in
writing before incorporating such invention, improvement,
development, concept, discovery or other proprietary information
into any Invention, and (ii) the Company is hereby granted a
nonexclusive, royalty-free, perpetual, irrevocable, worldwide
license to make, have made, modify, use and sell such item as part
of or in connection with such Invention. Consultant will not
incorporate any invention, improvement, development, concept,
discovery or other proprietary information owned by any third party
into any Invention without Company’s prior written
permission.
D.
Attorney-in-Fact
.
Consultant agrees that, if the Company is unable because of
Consultant’s unavailability, dissolution, mental or physical
incapacity, or for any other reason, to secure Consultant’s
signature for the purpose of applying for or pursuing any
application for any United States or foreign patents or mask work
or copyright registrations covering the Inventions assigned to the
Company in Section 3.A , then Consultant hereby
irrevocably designates and appoints the Company and its duly
authorized officers and agents as Consultant’s agent and
attorney-in-fact, to act for and on Consultant’s behalf to
execute and file any such applications and to do all other lawfully
permitted acts to further the prosecution and issuance of patents,
copyright and mask work registrations with the same legal force and
effect as if executed by Consultant.
4.
Conflicting
Obligations .
A.
Conflicts
.
Consultant certifies that Consultant has no outstanding agreement
or obligation that is in conflict with any of the provisions of
this Agreement or that would preclude Consultant from complying
with the provisions of this Agreement. Consultant will not
enter into any such conflicting agreement during the term of this
Agreement. Consultant’s violation of this
Section 4.A will be considered a material breach under
Section 6.B .
B.
Substantially
Similar Designs . In view of
Consultant’s access to the Company’s trade secrets and
proprietary know-how, Consultant agrees that Consultant will not,
without Company’s prior written approval, design identical or
substantially similar designs as those developed under this
Agreement for any third party during the term of this Agreement and
for a period of 12 months after the termination of this Agreement.
Consultant acknowledges that the obligations in this
Section 4 are ancillary to
Consultant’s nondisclosure obligations under
Section 2 .
5.
Reports
.
Consultant also agrees that Consultant will, from time to time
during the term of this Agreement or any extension thereof, keep
the Company advised as to Consultant’s progress in performing
the Services under this Agreement. Consultant further agrees
that Consultant will, as requested by the Company, prepare written
reports with respect to such progress.&nbs
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