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Exhibit 10.2
M-WAVE, INC.
CONSULTING
AGREEMENT
This
Consulting Agreement (the “Agreement”) is made by
and between M-Wave, Inc., (the “Company”), and
Jeff Figlewcz, an individual residing at the address set forth
on the signature page hereto (the
“Consultant”). This Agreement shall
commence and become effective immediately upon the Effective
Date of the Separation Agreement (as defined in that
agreement) referenced under paragraph 13 below and subject to
the terms and conditions of the Separation Agreement
(including paragraph 16 of that agreement). 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 terms set
forth more fully below. In consideration of the
mutual promises contained herein, the parties agree as
follows:
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1.
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SERVICES AND COMPENSATION
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(a)
Consultant agrees to perform for the Company the services
(“Services”) described in Exhibit 1
attached hereto.
(b)
The Company agrees to pay Consultant the compensation set
forth in Exhibit 1
for the performance of the Services.
(a)
Definition
. “Confidential Information” means any
Company proprietary information, technical data, trade secrets
or know-how, including, but not limited to, research, product
plans, products, services, customers, customer lists, markets,
software, developments, inventions, processes, formulas,
technology, designs, drawings, engineering, hardware
configuration information, marketing, finances or other
business information disclosed by the Company either directly
or indirectly in writing, orally or by drawings or inspection
of parts or equipment.
(b)
Non-Use and
Non-Disclosure . Consultant will not, during
or subsequent to the term of this Agreement, use the
Company’s Confidential Information for any purpose
whatsoever other than the performance of the Services on
behalf of the Company or disclose the Company’s
Confidential Information to any third party. It is
understood that said Confidential Information shall remain the
sole property of the Company. Consultant further
agrees to take all reasonable precautions to prevent any
unauthorized disclosure of such Confidential Information
including, but not limited to, having each employee of
Consultant, if any, with access to any Confidential
Information, execute a nondisclosure agreement containing
provisions in the Company’s favor identical to
Section 2 of this Agreement. Confidential
Information does not include information which: (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. 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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CONSULTING
AGREEMENT
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COMPANY
CONFIDENTIAL
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(c)
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 Consultant owes
the Company and such third parties, during the term of this
Agreement and thereafter, 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.
(d)
Other Consultant
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 third party with which Consultant has an
agreement or duty to keep in confidence information acquired
by Consultant, if any, and that Consultant will not bring onto
the premises of the Company any unpublished document or
proprietary information belonging to such party unless
consented to in writing by such party. Consultant
will indemnify the Company and hold it harmless from and
against all claims, liabilities, damages and expenses,
including reasonable attorneys fees and costs of suit, arising
out of or in connection with any alleged or actual violation
or misappropriation of a third party’s rights resulting
in whole or in part from the Company’s use of the work
product of Consultant under this Agreement.
(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 or Confidential Information that Consultant may have
in Consultant’s possession or control.
(a)
Assignment
. Consultant agrees that all copyrightable
material, notes, records, drawings, designs, inventions,
improvements, developments, discoveries and trade secrets
(collectively, “Work Product”) conceived,
discovered, developed or reduced to practice by Consultant,
solely or in collaboration with others, during the term of
this Agreement which relate in any manner to the business of
the Company that Consultant may be directed to undertake,
investigate or experiment with, or which Consultant may become
associated with in work, investigation or experimentation in
the Company’s line of business in performing the
Services hereunder, are the sole property of the
Company. Consultant further agrees to assign (or
cause to be assigned) and does hereby assign fully to the
Company all Work Product and any copyrights, patents, mask
work rights or other intellectual property rights relating
thereto. Consultant hereby waives any and all moral
rights.
(b)
Further
Assurances . Consultant agrees to assist the
Company, or its designee, at the Company’s expense, in
every proper way to secure the Company’s rights in the
Work Product and any copyrights, patents, mask work rights or
other intellectual property rights relating thereto in any and
all countries, including the disclosure to the Company of all
pertinent information and data with respect thereto, the
execution of all applications, specifications, oaths,
assignments and all other instruments which the Company shall
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 such Work Product, and any
copyrights, patents, mask work rights or other intellectual
property rights relating thereto. Consultant
further agrees that Consultant’s obligation to execute
or cause to be executed, when it is in Consultant’s
power to do so, any such instrument or papers shall continue
after the termination of this Agreement.
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CONSULTING
AGREEMENT
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COMPANY
CONFIDENTIAL
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(c)
Pre-Existing
Materials . Consultant agrees that if in the
course of performing the Services, Consultant incorporates
into any Work Product developed hereunder any invention,
improvement, development, concept, discovery or other
proprietary information owned by Consultant or in which
Consultant has an interest: (i) Consultant shall inform
Company, in writing before incorporating such invention,
improvement, development, concept, discovery or other
proprietary information into any Work Product; and (ii) the
Company is hereby granted and shall have a nonexclusive,
royalty-free, perpetual, irrevocable, worldwide license to
use, perform, display, make, reproduce, make derivative works,
import, sell, offer for sale, license, distribute, and
otherwise dispose of such invention, improvement, development,
concept, discovery or other proprietary information as part of
or in connection with such Work Product, with the right to
license such rights to others. Consultant shall 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 to apply for or
to pursue any application for any United States or foreign
patents or mask work or copyright registrations covering the
Work Product assigned to the Company above, 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 in
Consultant’s behalf and stead 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 thereon with the same legal force
and effect as if executed by Consultant.
(a)
Consultant
Warranty . Consultant shall perform the
obligations described herein in a good and workmanlike manner
with due diligence and in full compliance with the terms and
conditions of this Agreement and all mutually agreed to
specifications, statements of work, and acceptance
criteria. Consultant, at its expense, shall use
reasonable efforts to correct any Services or Work Product
performed by or delivered by Consultant that do not conform to
the foregoing warranty.
(b)
Further
Warranties. Consultant further warrants that: (i) the
Work Product is or will be original to Consultant; (ii)
Consultant has not previously granted and will not grant any
rights in the Work Product to any third party that are
inconsistent with the rights granted to Company herein; (iii)
each of Consultant’s employees, consultants,
contractors, partners, or agents who has been or will be
involved in the performance of the Services has or will have
signed an agreement with Consultant conveying all proprietary
and
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