SEPARATION AGREEMENT AND RELEASE
Exhibit
10.1
SEPARATION
AGREEMENT AND RELEASE
This
Separation Agreement and Release (“Agreement”) is made by and between Xxx Xxxxx
(“Employee”) and M-Wave, Inc. (the “Company”) (collectively referred to as the
“Parties” or individually referred to as a “Party”).
RECITALS
WHEREAS,
Employee was employed by the Company;
WHEREAS,
Employee signed an Employee Confidentiality and Property Agreement with the Company (the
“Confidentiality Agreement”);
WHEREAS,
the Company and Employee have entered into Nonqualified Stock Option Agreements,
dated September 1, 2003; August 19, 2005; and February 3, 2006, granting
Employee the option to purchase shares of the Company’s common stock subject to
the terms and conditions of the Company’s 2003 Stock Option Plan and the Stock
Option Agreement (collectively the “Stock Agreements”);
WHEREAS,
the Company terminated Employee’s employment with the Company effective April
14, 2008 (the “Termination Date”); and
WHEREAS,
the Parties wish to resolve any and all disputes, claims, complaints,
grievances, charges, actions, petitions, and demands that the Employee may have
against the Company and any of the Releasees as defined below, including, but
not limited to, any and all claims arising out of or in any way related to
Employee’s employment with or separation from the Company;
NOW,
THEREFORE, in consideration of the mutual promises made herein, the Company and
Employee hereby agree as follows:
COVENANTS
1. Consideration. In
consideration of Employee’s execution of this Agreement and Employee’s
fulfillment of all of its terms and conditions, and provided that Employee does
not revoke the Agreement under paragraph 6 below, the Company agrees as
follows:
a. Consulting
Agreement. The Company agrees to enter into the Consulting
Agreement with Employee as set forth under paragraph 16 below.
b. Separation
Payment. The Company further agrees to pay Employee a total
lump sum of One Thousand Dollars and No/Cents ($1,000), less applicable
withholding. This payment will be made to Employee within ten (10)
business days after the Effective Date of this Agreement.
c. General. Employee
acknowledges that without this Agreement, he is otherwise not entitled to the
consideration listed in this paragraph 1.
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2.
Stock. The
Parties agree that for purposes of determining the number of shares of the
Company’s common stock that Employee is entitled to purchase from the Company,
pursuant to the exercise of outstanding options, Employee will be considered to
have vested only up to the Termination Date. Employee acknowledges
that as of the Termination Date, Employee will have vested in 98,500 options and
no more. The exercise of Employee’s vested options and shares shall
continue to be governed by the terms and conditions of the Company’s Stock
Agreements.
3.
Benefits. Employee’s
health insurance benefits shall cease on the last day of April 2008,
subject to Employee’s right to continue his health insurance under COBRA or any
applicable state law. Employee’s participation in all benefits and
incidents of employment, including, but not limited to, vesting in stock
options, and the accrual of bonuses, vacation, and paid time off, ceased as of
the Termination Date.
4.
Payment of Salary and
Receipt of All Benefits. Employee acknowledges and represents
that, other than the consideration set forth in this Agreement, the Company has
paid or provided all salary, wages, bonuses, accrued vacation/paid time off,
leave, housing allowances, relocation costs, interest, severance, outplacement
costs, fees, reimbursable expenses, commissions, stock, stock options, vesting,
and any and all other benefits and compensation due to Employee.
5.
Release of
Claims. Employee agrees that the foregoing consideration
represents settlement in full of all outstanding obligations owed to Employee by
the Company and its current and former officers, directors, employees, agents,
investors, attorneys, shareholders, founders, administrators, affiliates,
benefit plans, plan administrators, parents, divisions, and subsidiaries, and
predecessor and successor corporations and assigns (collectively, the
“Releasees”). Employee, on his own behalf and on behalf of his
respective heirs, family members, executors, agents, and assigns, hereby and
forever releases the Releasees from, and agrees not to xxx concerning, or in any
manner to institute, prosecute, or pursue, any claim, complaint, charge, duty,
obligation, or cause of action relating to any matters of any kind, whether
presently known or unknown, suspected or unsuspected, that Employee may possess
against any of the Releasees arising from any omissions, acts, facts, or damages
that have occurred up until and including the Effective Date of this Agreement,
including, without limitation:
a. any
and all claims relating to or arising from Employee’s employment relationship
with the Company and the termination of that relationship;
b. any
and all claims relating to, or arising from, Employee’s right to purchase, or
actual purchase of shares of stock of the Company, including, without
limitation, any claims for fraud, misrepresentation, breach of fiduciary duty,
breach of duty under applicable state corporate law, and securities fraud under
any state or federal law;
c. any
and all claims for wrongful discharge of employment; termination in violation of
public policy; discrimination; harassment; retaliation; breach of contract, both
express and implied; breach of covenant of good faith and fair dealing, both
express and implied; promissory estoppel; negligent or intentional infliction of
emotional distress; fraud; negligent or intentional misrepresentation; negligent
or intentional interference with contract or prospective economic advantage;
unfair business practices; defamation; libel; slander; negligence; personal
injury; assault; battery; invasion of privacy; false imprisonment; conversion;
and disability benefits;
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d. any
and all claims for violation of any federal, state, or municipal statute,
including, but not limited to, Title VII of the Civil Rights Act of 1964;
the Civil Rights Act of 1991; the Rehabilitation Act of 1973; the Americans with
Disabilities Act of 1990; the Equal Pay Act; the Fair Labor Standards Act,
except as prohibited by law; the Fair Credit Reporting Act; the Age
Discrimination in Employment Act of 1967; the Older Workers Benefit Protection
Act; the Employee
Retirement Income Security Act of 1974; the Worker Adjustment and Retraining
Notification Act; the Family and Medical Leave Act, except as prohibited by law;
the Xxxxxxxx-Xxxxx Act of 2002; the Uniformed Services Employment and
Reemployment Rights Act; Texas Workers’ Compensation Act; Chapter 21 of the
Texas Labor Code (also known as the Texas Commission on Human Rights Act); the Illinois Workers’
Compensation Act; and the Illinois Human Rights Act;
e. any
and all claims for violation of the federal or any state
constitution;
f. any
and all claims arising out of any other laws and regulations relating to
employment or employment discrimination;
g. any
claim for any loss, cost, damage, or expense arising out of any dispute over the
non-withholding or other tax treatment of any of the proceeds received by
Employee as a result of this Agreement; and
h. any
and all claims for attorneys’ fees and costs.
Employee
agrees that the release set forth in this section shall be and remain in effect
in all respects as a complete general release as to the matters
released. This release does not extend to any obligations incurred
under this Agreement. This release does not release claims that
cannot be released as a matter of law, including, but not limited to Employee’s
right to file a charge with or participate in a charge by the Equal Employment
Opportunity Commission, or any other local, state, or federal administrative
body or government agency that is authorized to enforce or administer laws
related to employment, against the Company (with the understanding that any such
filing or participation does not give Employee the right to recover any monetary
damages against the Company; Employee’s release of claims herein bars Employee
from recovering such monetary relief from the Company).
6.
Acknowledgment of Waiver of
Claims under ADEA. Employee acknowledges that he is waiving and releasing
any rights he may have under the Age Discrimination in Employment Act of 1967
(“ADEA”), and that this waiver and release is knowing and
voluntary. Employee agrees that this waiver and release does not
apply to any rights or claims that may arise under the ADEA after the Effective
Date of this Agreement. Employee acknowledges that the consideration
given for this waiver and release is in addition to anything of value to which
Employee was already entitled. Employee further acknowledges that he
has been advised by this writing that: (a) he should consult with an attorney
prior to
executing this Agreement; (b) he has twenty-one (21) days within which to
consider this Agreement; (c) he has seven (7) days following his execution of
this Agreement to revoke this Agreement; (d) this Agreement shall not be
effective until after the revocation period has expired; and (e) nothing in this
Agreement prevents or precludes Employee from challenging or seeking a
determination in good faith of the validity of this waiver under the ADEA, nor
does it impose any condition precedent, penalties, or costs for doing so, unless
specifically authorized by federal law. In the event Employee signs
this Agreement and returns it to the Company in less than the 21-day period
identified above, Employee hereby acknowledges that he has freely and
voluntarily chosen to waive the time period allotted for considering this
Agreement. Employee acknowledges and understands that revocation must
be accomplished by a written notification to Xxx Xxxxx, Chairman, M-Wave, Inc.
0000 Xxxxxxx Xxxxxx Xxxxxx, Xxxxxxxx 00000, that is received prior to the
Effective Date.
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7.
Unknown
Claims. Employee acknowledges that he has been advised to
consult with legal counsel and that he is familiar with the principle that a
general release does not extend to claims that the releaser does not know or
suspect to exist in his favor at the time of executing the release, which, if
known by him, must have materially affected his settlement with the
releasee. Employee, being aware of said principle, agrees to
expressly waive any rights he may have to that effect, as well as under any
other statute or common law principles of similar effect.
8.
No Pending or Future
Lawsuits. Employee represents that he has no lawsuits, claims,
or actions pending in his name, or on behalf of any other person or entity,
against the Company or any of the other Releasees. Employee also
represents that he does not intend to bring any claims on his own behalf or on
behalf of any other person or entity against the Company or any of the other
Releasees.
9.
Application for
Employment. Employee understands and agrees that, as a
condition of this Agreement, Employee shall not be entitled to any employment
with the Company, and Employee hereby waives any right, or alleged right, of
employment or re-employment with the Company. Employee further agrees
not to apply for employment with the Company.
10. Confidentiality. Employee
agrees to maintain in complete confidence the existence of this Agreement, the
contents and terms of this Agreement, and the consideration for this Agreement
(hereinafter collectively referred to as “Separation
Information”). Except as required by law, Employee may disclose
Separation Information only to his immediate family members, the Court in any
proceedings to enforce the terms of this Agreement, Employee’s undersigned
counsel, and Employee’s accountant and any professional tax advisor to the
extent that they need to know the Separation Information in order to provide
advice on tax treatment or to prepare tax returns, and must prevent disclosure
of any Separation Information to all other third parties. Employee
agrees that he will not publicize, directly or indirectly, any Separation
Information.
Employee
acknowledges and agrees that the confidentiality of the Separation Information
is of the essence. The Parties agree that if the Company proves that
Employee breached this Confidentiality provision, the Company shall be entitled
to an award of its costs spent enforcing this provision, including all
reasonable attorneys’ fees associated with the enforcement action, without
regard to whether the Company can establish actual damages from Employee’s
breach, except to the extent that such breach constitutes a legal action by
Employee that directly pertains to the ADEA. Any such
individual breach or disclosure shall not excuse Employee from his obligations
hereunder, nor permit him to make additional disclosures. Employee
warrants that he has not disclosed, orally or in writing, directly or
indirectly, any of the Separation Information to any unauthorized
party.
11. Trade Secrets and
Confidential Information/Company Property. Employee reaffirms
and agrees to observe and abide by the terms of the Confidentiality Agreement,
specifically including the provisions therein regarding nondisclosure of the
Company’s trade secrets and confidential and proprietary
information. Employee’s signature below constitutes his certification
under penalty of perjury that he has returned all documents and other items
provided to Employee by the Company, developed or obtained by Employee in
connection with his employment with the Company, or otherwise belonging to the
Company.
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12. No
Cooperation. Employee agrees not to act in any manner that
might damage the business of the Company. Employee further agrees
that he will not knowingly encourage, counsel, or assist any attorneys or their
clients in the presentation or prosecution of any disputes, differences,
grievances, claims, charges, or complaints by any third party against any of the
Releasees, unless under a subpoena or other court order to do so or as related
directly to the ADEA waiver in this Agreement. Employee agrees both
to immediately notify the Company upon receipt of any such subpoena or court
order, and to furnish, within three (3) business days of its receipt, a copy of
such subpoena or other court order. If approached by anyone for
counsel or assistance in the presentation or prosecution of any disputes,
differences, grievances, claims, charges, or complaints against any of the
Releasees, Employee shall state no more than that he cannot provide counsel or
assistance.
13. Non-Disparagement. Employee
agrees to refrain from any disparagement, defamation, libel, or slander of any
of the Releasees, and agrees to refrain from any tortious interference with the
contracts and relationships of any of the Releasees. Employee shall
direct any inquiries by potential future employers to the Company’s Chief
Executive Officer.
14. Breach. Employee
acknowledges and agrees that any material breach of this Agreement, unless such
breach constitutes a legal action by Employee challenging or seeking a
determination in good faith of the validity of the waiver herein under the ADEA,
or of any provision of the Confidentiality Agreement shall entitle the Company
immediately to recover and/or cease providing the consideration provided to
Employee under this Agreement, except as provided by law. Except as
provided by law, Employee shall also be responsible to the Company for all
costs, attorneys’ fees, and any and all damages incurred by the Company in:
(a) enforcing Employee’s obligations under this Agreement or the
Confidentiality Agreement, including the bringing of any action to recover the
consideration, and (b) defending against a claim or suit brought or pursued
by Employee in violation of the terms of this Agreement.
15. No Admission of
Liability. Employee understands and acknowledges that this
Agreement constitutes a compromise and settlement of any and all actual or
potential disputed claims by Employee. No action taken by
the Company hereto, either previously or in connection with this Agreement,
shall be deemed or construed to be: (a) an admission of the truth or
falsity of any actual or potential claims or (b) an acknowledgment or
admission by the Company of any fault or liability whatsoever to Employee or to
any third party.
16. Consulting
Agreement. As referenced under paragraph 1 above, in
consideration of this Agreement, the Company agrees to allow Employee
to serve as a Company consultant, contingent upon his non-revocation of this
Agreement and pursuant to the terms and conditions of the Consulting Agreement
attached hereto as Exhibit A (the
“Consulting Agreement”). The scope of the consulting relationship and
any related compensation shall be set forth under the Consulting
Agreement. Employee understands that the payment of such compensation
is contingent upon Employee’s execution of and compliance with the Consulting
Agreement as well as Employee’s compliance with the terms and conditions of this
Agreement. Employee further understands and acknowledges that the
Consulting Agreement attached hereto shall be deemed null and void and The
Company shall have no obligations thereunder (including any obligations to
provide compensation for consulting services) if this Agreement is revoked under
Section 6 above. Employee agrees that he is not entitled to begin
performing any services as a consultant until the Consulting Agreement becomes
effective (i.e., upon the Effective Date of this Agreement).
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17. Non-Solicitation. Employee
agrees that for a period of twelve (12) months immediately following the
Effective Date of this Agreement, Employee shall not directly or indirectly
solicit any of the Company’s employees to leave their employment at the
Company.
18. Cooperation with
Company/Transition Assistance. Employee agrees to cooperate,
at the reasonable request of the Company, in the defense and/or
prosecution of any charges, claims, investigations (internal or external),
administrative proceedings and/or lawsuits relating to matters occurring during
Employee’s period of employment. The Company agrees to pay Employee a
reasonable fee commensurate with the required services for the time expended in
the defense and prosecution of such matters. Employee also agrees to
assist in the transition of his duties following his separation of employment,
as reasonably requested by the Company. Employee acknowledges and
agrees that he is not entitled to any additional compensation or other benefits,
other than as set forth in this Agreement, in connection with his performance of
the transition duties.
19. Costs. The
Parties shall each bear their own costs, attorneys’ fees, and other fees
incurred in connection with the preparation of this Agreement.
20. ARBITRATION. THE
PARTIES AGREE THAT ANY AND ALL DISPUTES ARISING OUT OF THE TERMS OF THIS
AGREEMENT, THEIR INTERPRETATION, AND ANY OF THE MATTERS HEREIN RELEASED, SHALL
BE SUBJECT TO ARBITRATION IN DU PAGE COUNTY, ILLINOIS BEFORE JAMS, PURSUANT TO
ITS EMPLOYMENT ARBITRATION RULES & PROCEDURES (“JAMS RULES”). THE
ARBITRATOR MAY GRANT INJUNCTIONS AND OTHER RELIEF IN SUCH
DISPUTES. THE ARBITRATOR SHALL ADMINISTER AND CONDUCT ANY ARBITRATION
IN ACCORDANCE WITH ILLINOIS LAW, AND THE ARBITRATOR SHALL APPLY SUBSTANTIVE AND
PROCEDURAL ILLINOIS LAW TO ANY DISPUTE OR CLAIM, WITHOUT REFERENCE TO ANY
CONFLICT-OF-LAW PROVISIONS OF ANY JURISDICTION. TO THE EXTENT THAT
THE JAMS RULES CONFLICT WITH ILLINOIS LAW, ILLINOIS LAW SHALL TAKE
PRECEDENCE. THE DECISION OF THE ARBITRATOR SHALL BE FINAL,
CONCLUSIVE, AND BINDING ON THE PARTIES TO THE ARBITRATION. THE
PARTIES AGREE THAT THE PREVAILING PARTY IN ANY ARBITRATION SHALL BE ENTITLED TO
INJUNCTIVE RELIEF IN ANY COURT OF COMPETENT JURISDICTION TO ENFORCE THE
ARBITRATION AWARD. THE PARTIES TO THE ARBITRATION SHALL EACH PAY AN
EQUAL SHARE OF THE COSTS AND EXPENSES OF SUCH ARBITRATION, AND EACH PARTY SHALL
SEPARATELY PAY FOR ITS RESPECTIVE COUNSEL FEES AND EXPENSES; PROVIDED, HOWEVER,
THAT THE ARBITRATOR SHALL AWARD ATTORNEYS’ FEES AND COSTS TO THE PREVAILING
PARTY, EXCEPT AS PROHIBITED BY LAW. THE PARTIES HEREBY AGREE TO WAIVE
THEIR RIGHT TO HAVE ANY DISPUTE BETWEEN THEM RESOLVED IN A COURT OF LAW BY A
JUDGE OR JURY. NOTWITHSTANDING THE FOREGOING, THIS SECTION WILL NOT
PREVENT EITHER PARTY FROM SEEKING INJUNCTIVE RELIEF (OR ANY OTHER PROVISIONAL
REMEDY) FROM ANY COURT HAVING JURISDICTION OVER THE PARTIES AND THE SUBJECT
MATTER OF THEIR DISPUTE RELATING TO THIS AGREEMENT AND THE AGREEMENTS
INCORPORATED HEREIN BY REFERENCE. SHOULD ANY PART OF THE ARBITRATION
AGREEMENT CONTAINED IN THIS PARAGRAPH CONFLICT WITH ANY OTHER ARBITRATION
AGREEMENT BETWEEN THE PARTIES, THE PARTIES AGREE THAT THIS ARBITRATION AGREEMENT
SHALL GOVERN.
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21. Tax
Consequences. The Company makes no representations or
warranties with respect to the tax consequences of the payments and any other
consideration provided to Employee or made on his behalf under the terms of this
Agreement. Employee agrees and understands that he is responsible for
payment, if any, of local, state, and/or federal taxes on the payments and any
other consideration provided hereunder by the Company and any penalties or
assessments thereon. Employee further agrees to indemnify and hold
the Company harmless from any claims, demands, deficiencies, penalties,
interest, assessments, executions, judgments, or recoveries by any government
agency against the Company for any amounts claimed due on account of: (a)
Employee’s failure to pay or the Company’s failure to withhold, or Employee’s
delayed payment of, federal or state taxes, or (b) damages sustained by the
Company by reason of any such claims, including attorneys’ fees and
costs.
22. Section
409(A). If the Company determines that any cash severance
benefits, health continuation coverage, or additional benefits provided under
this Agreement shall fail to satisfy the distribution requirement of Section
409A(a)(2)(A) or the Internal Revenue Code of 1986, as amended (the “Code”) as
result of Section 409A(a)(2)(B)(i) of the Code, the payment of such benefit
shall be accelerated to the minimum extent necessary so that the benefit is not
subject to the provisions of Section 409(a)(1) of the Code. (It is
the intention of the preceding sentence to apply the short-term deferral
provisions of Section 409A of the Code, and the regulations and other guidance
thereunder, to such payments, and the payment schedule as revised after the
application of the preceding sentence shall be referred to as the “Revised
Payment Schedule.”) However, if there is no Revised Payment Schedule
that would avoid the application of Section 409A(a)(1) of the Code, the payment
of such benefits shall not be paid pursuant to a Revised Payment Schedule and
instead shall be delayed to the minimum extent necessary so that such benefits
are not subject to the provisions of section 409A(a)(1) of the
Code. The Company may attach conditions to or adjust the amounts paid
pursuant to this paragraph to preserve, as closely as possible, the economic
consequences that would have applied in the absence of this paragraph; provided, however, that no
such condition or adjustment shall result in the payments being subject to
Section 409A(a)(1) of the Code.
23. Authority. The
Company represents and warrants that the undersigned has the authority to act on
behalf of the Company and to bind the Company and all who may claim through it
to the terms and conditions of this Agreement. Employee represents
and warrants that he has the capacity to act on his own behalf and on behalf of
all who might claim through him to bind them to the terms and conditions of this
Agreement. Each Party warrants and represents that there are no liens
or claims of lien or assignments in law or equity or otherwise of or against any
of the claims or causes of action released herein.
24. No
Representations. Employee represents that he has had an
opportunity to consult with an attorney, and has carefully read and understands
the scope and effect of the provisions of this Agreement. Employee
has not relied upon any representations or statements made by the Company that
are not specifically set forth in this Agreement.
25. No
Waiver. The failure of the Company to insist upon the
performance of any of the terms and conditions in this Agreement, or the failure
to prosecute any breach of any of the terms or conditions of this Agreement,
shall not be construed thereafter as a waiver of any such terms or
conditions. This entire Agreement shall remain in full force and
effect as if no such forbearance or failure of performance had
occurred.
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26. Severability. In
the event that any provision or any portion of any provision hereof or any
surviving agreement made a part hereof becomes or is declared by a court of
competent jurisdiction or arbitrator to be illegal, unenforceable, or void, this
Agreement shall continue in full force and effect without said provision or
portion of provision.
27. Attorneys’
Fees. Except with regard to a legal action challenging or
seeking a determination in good faith of the validity of the waiver herein under
the ADEA, in the event that either Party brings an action to enforce or effect
its rights under this Agreement, the prevailing Party shall be entitled to
recover its costs and expenses, including the costs of mediation, arbitration,
litigation, court fees, and reasonable attorneys’ fees incurred in connection
with such an action.
28. Entire
Agreement. This Agreement represents the entire agreement and
understanding between the Company and Employee concerning the subject matter of
this Agreement and Employee’s employment with and separation from the Company
and the events leading thereto and associated therewith, and supersedes and
replaces any and all prior agreements and understandings concerning the subject
matter of this Agreement and Employee’s relationship with the Company, with the
exception of the Confidentiality Agreement and the Stock
Agreements.
29. No Oral
Modification. This Agreement may only be amended in a writing
signed by Employee and the Company’s Chief Executive Officer.
30. Governing
Law. This Agreement shall be governed by the laws of the State
of Illinois, without regard for choice-of-law provisions. Employee
consents to personal and exclusive jurisdiction and venue in the State of
Illinois.
31. Effective
Date. Each Party has seven (7) days after that Party signs
this Agreement to revoke it. This Agreement will become effective on
the eighth (8th) day after Employee signed this Agreement, so long as it has
been signed by the Parties and has not been revoked by either Party before that
date (the “Effective Date”).
32. Counterparts. This
Agreement may be executed in counterparts and by facsimile, and each counterpart
and facsimile shall have the same force and effect as an original and shall
constitute an effective, binding agreement on the part of each of the
undersigned.
33. Voluntary Execution of
Agreement. Employee understands and agrees that he executed
this Agreement voluntarily, without any duress or undue influence on the part or
behalf of the Company or any third party, with the full intent of releasing all
of his claims against the Company and any of the other
Releasees. Employee acknowledges that:
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a.
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he
has read this Agreement;
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b.
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he
has been represented in the preparation, negotiation, and execution of
this Agreement by legal counsel of his own choice or has elected not to
retain legal counsel;
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c.
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he
understands the terms and consequences of this Agreement and of the
releases it contains; and
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d.
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he
is fully aware of the legal and binding effect of this
Agreement.
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IN
WITNESS WHEREOF, the Parties have executed this Agreement on the respective
dates set forth below.
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XXX XXXXX, an
individual
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Dated:
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Xxx
Xxxxx
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M-WAVE,
INC.
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Dated:
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By
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Xxxx
Xxxxxxxxx
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Chief
Financial Officer
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Exhibit
A
Consulting
Agreement
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