ex10_2.htm


    
      

    

    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:

    


    
      	
               
      

            	
              1.

            	
              SERVICES
      AND COMPENSATION

            


    

    


    (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.

    


    
      	
               
      

            	
              2.

            	
              CONFIDENTIALITY

            


    

    


    (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.

     

    
      	
              CONSULTING
      AGREEMENT

            	
              1

            	
              COMPANY
      CONFIDENTIAL

            


    


    
      
         


      

      
         


        
          

        

      

      
         


      

    


    (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.

    


    
      	
               
      

            	
              3.

            	
              OWNERSHIP

            


    

    


    (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.

     

    
      	
              CONSULTING
      AGREEMENT

            	
              2

            	
              COMPANY
      CONFIDENTIAL

            


    


    
      
         


      

      
         


        
          

        

      

      
         


      

    


    (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.

    


    
      	
               
      

            	
              4.

            	
              WARRANTIES

            


    

    


    (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 intellectual property rights in or
relating to the Work Product to Consultant and agreeing to maintain in
confidence all trade secrets and non-Consultant proprietary information embodied
in the Work Product or acquired while performing the Services or having access
to Work Product; (iv) all Work Product, and the intended uses thereof, shall be
free of any third party claims with respect to intellectual property or other
proprietary rights and shall be free of any third party liens, encumbrances,
security interests, or any similar restrictions; (v) unless provided
by Company, Consultant will provide all
necessary personnel, facilities, and materials to facilitate efficient and
effective completion of the Services; (vi) Consultant will exert Consultant’s
best efforts to use a repeatable and proven process to design, develop, test,
deliver, and document the Work Product, or any part thereof; and (vii)
Consultant has full power and authority to enter into this Agreement, to carry
out its obligations under this Agreement and to grant the rights granted to
Company hereunder.

     

    
      	
              CONSULTING
      AGREEMENT

            	
              3

            	
              COMPANY
      CONFIDENTIAL

            


    


    
      
         


      

      
         


        
          

        

      

      
         


      

    


    (c) Warranty
Indemnity.  Consultant shall indemnify and hold the Company
harmless from and against any claims, damages, or liabilities resulting from
Consultant’s breach of the foregoing warranties.

    


    
      	
               
      

            	
              5.

            	
              CONFLICTING
      OBLIGATIONS

            


    

    


    (a)
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 hereof, and further
certifies that Consultant will not enter into any such conflicting agreement
during the term of this Agreement.

    


    (b) In
view of Consultant’s access to the Company’s trade secrets and proprietary
know-how, Consultant further agrees that Consultant will not, without Company’s
prior written consent, design identical or substantially similar designs as any
that may be developed in connection with this Agreement for any third party
during the term of this Agreement and for a period of twelve (12) months after
the termination of this Agreement. Consultant acknowledges that the obligations
in this Section 5 are ancillary to Consultant’s nondisclosure obligations under
Section 2.

    


    
      	
               
      

            	
              6.

            	
              REPORTS

            


    

    


    Consultant
agrees that he 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 hereunder and that Consultant will, as requested by the
Company, prepare written reports with respect thereto.  It is
understood that the time required in the preparation of such written reports
shall be considered time devoted to the performance of Consultant’s
Services.

    


    
      	
               
      

            	
              7.

            	
              TERM AND
      TERMINATION

            


    

    


    (a) Term.  This
Agreement will become effective and commence as of the Effective Date and will
continue until termination as provided below.

    


    (b) Termination.  The
Company may terminate this Agreement at any time and for any reason immediately
and without any prior notice. The Consultant may terminate this Agreement at any
time and for any reason with a two (2) week prior notice.

    


    (c) Survival.  Upon
termination of this Agreement pursuant to Section 7(a) or (b), all rights and
duties of the parties toward each other shall cease except:

    


    (i)   that
the Company shall be obliged to pay, within thirty (30) days of the effective
date of termination, all amounts owing to Consultant for Services completed and
accepted by the Company prior to the termination date and related expenses, if
any, in accordance with the provisions of Section 1; and

     

    
      	
              CONSULTING
      AGREEMENT

            	
              4

            	
              COMPANY
      CONFIDENTIAL

            


    


    
      
         


      

      
         


        
          

        

      

      
         


      

    


    (ii)  Sections 2
(Confidentiality), 3 (Ownership), 4 (Warranties), 5 (Conflicting
Obligations), 9 (Independent Contractor), and 11 (Arbitration and Equitable
Relief) shall survive termination of this Agreement.

    


    
      	
               
      

            	
              8.

            	
              ASSIGNMENT

            


    

    


    Neither
this Agreement nor any right hereunder or interest herein may be assigned or
transferred by Consultant without the express written consent of the
Company.  The Company may assign this Agreement in its
discretion.

    


    
      	
               
      

            	
              9.

            	
              INDEPENDENT
      CONTRACTOR

            


    

    


    (a) Nature of
Relationship.  It is the express intention of the parties that
Consultant is an independent contractor.  Nothing in this Agreement
shall in any way be construed to constitute Consultant as an employee other than
a representative of the Company as an Acting CFO and Corporate Secretary, but
Consultant shall perform the Services hereunder as an independent
contractor.  Consultant agrees to furnish (or reimburse the Company
for) all tools and materials necessary to accomplish this contract, and shall
incur all expenses associated with performance, except as expressly provided on
Exhibit 1 of
this Agreement.  Consultant acknowledges and agrees that Consultant is
obligated to report as income all compensation received by Consultant pursuant
to this Agreement, and Consultant agrees to and acknowledges the obligation to
pay all self-employment and other taxes thereon.

    


    (b) Independent Contractor
Indemnification.  Consultant agrees to indemnify and hold
harmless the Company and its directors, officers and employees from and against
all taxes, losses, damages, liabilities, costs and expenses, including
attorneys’ fees and other legal expenses, arising directly or indirectly from or
in connection with: (i) any negligent, reckless or intentionally wrongful act of
Consultant or Consultant’s assistants, employees or agents; (ii) a determination
by a court or agency that the Consultant is not an independent contractor; (iii)
any breach by the Consultant or Consultant’s assistants, employees or agents of
any of the covenants contained in this Agreement; (iv) any failure of Consultant
to perform the Services in accordance with all applicable laws, rules and
regulations; or (v) any violation or claimed violation 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.

    


    
      	
               
      

            	
              10.

            	
              BENEFITS

            


    

    


    Consultant
acknowledges and agrees and it is the intent of the parties hereto that neither
Consultant nor any employees or contractors of Consultant receive any
Company-sponsored benefits from the Company either as a consultant or
employee.  Such benefits include, but are not limited to, paid
vacation, sick leave, medical insurance, and 401(k) participation.  If
Consultant is reclassified by a state or federal agency or court as an employee,
Consultant will become a reclassified employee and will receive no benefits
except those mandated by state or federal law, even if by the terms of the
Company’s benefit plans in effect at the time of such reclassification
Consultant would otherwise be eligible for such benefits.

     

    
      	
              CONSULTING
      AGREEMENT

            	
              5

            	
              COMPANY
      CONFIDENTIAL

            


    


    
      
         


      

      
         


        
          

        

      

      
         


      

    


    
      	
               
      

            	
              11.

            	
              ARBITRATION
      AND EQUITABLE RELIEF

            


    

    


    (a) Disputes.  Except
as provided in Section 11(d), the Company and Consultant agree that any dispute
or controversy arising out of, relating to or in connection with the
interpretation, validity, construction, performance, breach or termination of
this Agreement shall be settled by binding arbitration to be held in DuPage
County, Illinois, in accordance with the rules then in effect of the American
Arbitration Association.  The arbitrator may grant injunctions or
other relief in such dispute or controversy.  The decision of the
arbitrator shall be final, conclusive and binding on the parties to the
arbitration.  Judgment may be entered on the arbitrator’s decision in
any court of competent jurisdiction.

    


    (b) Consent to Personal
Jurisdiction.  The arbitrator(s) shall apply Illinois law to
the merits of any dispute or claim, without reference to conflicts of law
rules.  Consultant hereby consents to the personal jurisdiction of the
state and federal courts located in DuPage County, Illinois for any action or
proceeding arising from or relating to this Agreement or relating to any
arbitration in which the parties are participants.

    


    (c) Costs.  The
Company and Consultant shall each pay one-half of the costs and expenses of such
arbitration, and each shall separately pay its counsel fees and expenses unless
otherwise required by law.

    


    (d) Equitable
Relief.  The parties may apply to any court of competent
jurisdiction for a temporary restraining order, preliminary injunction, or other
interim or conservatory relief, as necessary, without breach of this arbitration
agreement and without abridgment of the powers of the arbitrator.

    


    (e) Acknowledgment.  CONSULTANT
HAS READ AND UNDERSTANDS SECTION 11, WHICH DISCUSSES
ARBITRATION.  CONSULTANT UNDERSTANDS THAT BY SIGNING THIS AGREEMENT,
CONSULTANT AGREES TO SUBMIT ANY CLAIMS ARISING OUT OF, RELATING TO, OR IN
CONNECTION WITH THIS AGREEMENT, OR THE INTERPRETATION, VALIDITY, CONSTRUCTION,
PERFORMANCE, BREACH OR TERMINATION THEREOF, TO BINDING ARBITRATION, EXCEPT AS
PROVIDED IN SECTION 11(d), AND THAT THIS ARBITRATION CLAUSE CONSTITUTES A WAIVER
OF CONSULTANT’S RIGHT TO A JURY TRIAL AND RELATES TO THE RESOLUTION OF ALL
DISPUTES RELATING TO ALL ASPECTS OF THE RELATIONSHIP BETWEEN THE
PARTIES.

    


    
      	
               
      

            	
              12.

            	
              GOVERNING
      LAW

            


    

    


    This
Agreement shall be governed by the internal substantive laws, but not the choice
of law rules, of the State of Illinois.

    


    
      	
               
      

            	
              13.

            	
              ENTIRE
      AGREEMENT

            


    

    


    This
Agreement is the entire agreement of the parties and supersedes any prior
agreements between them, whether written or oral, with respect to the subject
matter hereof, with the exception of the Separation Agreement and Release
between Consultant and the Company (the “Separation Agreement”), and any
agreement expressly survived under the Separation Agreement.  No
waiver, alteration, or modification of any of the provisions of this Agreement
shall be binding unless in writing and signed by Consultant and a duly
authorized representative of the Company.

     

    
      	
              CONSULTING
      AGREEMENT

            	
              6

            	
              COMPANY
      CONFIDENTIAL

            


    


    
      
         


      

      
         


        
          

        

      

      
         


      

    


    
      	
               
      

            	
              14.

            	
              ATTORNEY’S
      FEES

            


    

    


    In any
court action at law or equity which is brought by one of the parties to enforce
or interpret the provisions of this Agreement, the prevailing party will be
entitled to reasonable attorney’s fees, in addition to any other relief to which
that party may be entitled.

    


    
      	
               
      

            	
              15.

            	
              SEVERABILITY

            


    

    


    The
invalidity or unenforceability of any provision of this Agreement, or any terms
thereof, shall not affect the validity of this Agreement as a whole, which shall
at all times remain in full force and effect.

    


    
      	
               
      

            	
              16.

            	
              NOTICES

            


    

    


    Any
notice shall be addressed to the party being notified at the address set forth
in this Agreement or such other address as either party may notify the other of
and shall be deemed given upon delivery if personally delivered or transmitted
via facsimile or reliable overnight carrier (with tracking capability), or
forty-eight (48) hours after being deposited in the United States mail, postage
prepaid, registered or certified mail, return receipt requested.

    


    


    IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day
and year first above written.

    


    


    
      	
              Company:

            	 
      	
              Consultant:

            
	
              M-Wave,
      Inc.

            	 
      	 
      	 
      
	
              By:

            	 
      	 
      	 
      	 
      
	
              Print
      Name:

            	
              Joseph A. Turek

            	 
      	
              Print
      Name:

            	 
      
	
              Title:

            	
              CEO

            	 
      	
              Date:

            	 
      
	
              Date:

            	 
      	 
      	
              Address:

            	 
      
	
              Address:

            	
              1300
      Norwood St.

            	 
      	 
      	 
      
	 
      	
              Itasca,
      IL 60143

            	 
      	 
      	 
      


    

     

    
      	
              CONSULTING
      AGREEMENT

            	
              7

            	
              COMPANY
      CONFIDENTIAL

            


    


    
      
         


      

      
         


        
          

        

      

      
         


      

    


    EXHIBIT
1

    


    SERVICES AND
COMPENSATION

    


    
      	
               
      

            	
              1.

            	
              Contact.  Consultant’s
      principal Company contact:

            


    

    


    (a)  Name:  Joseph A.
Turek

    


    (b)  Title:  Chairman of
the Board and CEO

    


    
      	
               
      

            	
              2.

            	
              Services.  Consultant
      will render to the Company the following
  Services:

            


    

    


    Consultant
will perform the services requested by the Company, including the Consultant’s
responsibilities as the former Chief Financial Officer and Corporate Secretary
of the Company and assistance regarding business matters of the
Company.  Consultant shall also perform such other duties and
responsibilities as the Company’s CEO and/or the Board of Directors shall from
time to time assign to him.

    


    Consultant
shall carry the title of “Acting CFO and Corporate Secretary” and shall certify
the SEC and Audited financial reports as necessary.

    


    Consultant
shall provide a written report to the Company, weekly, of all Services performed
under this Agreement.

    


    
      	
               
      

            	
              3.

            	
              Compensation.  Consultant
      will receive the following compensation for the
  Services:

            


    

    


    (a)  Payment: Consultant shall
receive Five Hundred Dollars and No/Cents ($500.00) per day for the Services
provided under this Agreement. Consultant shall provide invoices for all
Services performed under this Agreement, which shall be provided at the end of
the Bi-Monthly period in which the relevant Services were
provided.  The Company shall provide payment for such Services within
five (5) business days from receipt of the invoice from Consultant.

    


    (b) Expenses: The Company shall
provide reimbursement of certain pre-approved expenses incurred by Consultant
with the prior written consent of the Company’s Board of Directors, in its sole
discretion, in connection with the performance of the Serivices
hereunder.  The Company shall provide reimbursement for such expenses
within five (5) business days from receipt of the expense report and any
required supporting documentation (as requested by the Company) from
Consultant.

    


    (c)  Incentive Compensation: In addition to the daily
payment to which Consultant is entitled pursuant to Section 3(a), Company
will pay to Consultant additional compensation (“Bonus”):

    


    
      	
               
      

            	
              (i)

            	
              A
      Bonus payment equal to Twenty Thousand dollars and No/Cents ($20,000.00)
      at the earlier of five (5) days after Company consumates a “change of
      control” event or sixty (60) days after the Effective Date provided the
      consulting agreement is not terminated prior to either date;
      and

            


    

     

    
      	
              CONSULTING
      AGREEMENT

            	
              8

            	
              COMPANY
      CONFIDENTIAL

            


    


    
      
         


      

      
         


        
          

        

      

      
         


      

    


    
      	
               
      

            	
              (ii)

            	
              A
      Bonus payment equal to Twenty Thousand dollars and No/Cents ($20,000.00)
      at the earlier of sixty (60) days after Company completes a “change of
      control” transaction or one hundred and eighty (180) days after the
      Effecitve Date provided the consulting agreement is not terminated prior
      to either date.

            


    

    


    
      	
               
      

            	
              (iii)

            	
              The
      foregoing not withstanding, in the event Consultant’s employment is
      terminated by the Company for any reason after the initial Separation
      Payment or a Bonus Payment, the next available Bonus payment will be due
      otherwise the Consultant shall not be entitled to receive any Bonus
      payable after the effective date of such termination. If the Consultant
      terminates this Agreement for any reason at any time or is terminated for
      breach of this Agreement, the Consultant shall not be entitled to receive
      any Bonus payable after the effective date of such
      termination.

            


    

    


    
      	
               
      

            	
              (d)

            	
              Records and Reports:
      Consultant agrees to keep accurate and complete records regarding the
      performance of all Services for the Company and to provide such detailed
      records in his weekly report.

            


    

    


    
      	
               
      

            	
              (e)

            	
              Definition of “change of
      control”: For all purposes under this Agreement, “change of
      control” shall mean the occurrence of an event as a result of which the
      Company consolidates with, or merges with or into another corporation or
      other entity, or sells, assigns, conveys, transfers, leases or otherwise
      disposes of all or substatntially all of its assets to any person, or any
      corporation consolidates with, or merges with or into, the Company, in any
      such efvent pursuant to a transactionin which the outstanding voting stock
      of the Company is changed into or exchanged for cash, securities or other
      property, or the Company is liquidated or dissioved or adopts a plan of
      liquidation.

            


    

     

     

    
      	
              CONSULTING
      AGREEMENT

            	
              9

            	
              COMPANY
      CONFIDENTIAL