<PAGE> 1
EXHIBIT 10.37
SEVERANCE AGREEMENT
This Agreement (the "Agreement") is made and entered into as of July 10,
2000, between MTI Technology Corporation, a corporation organized under the laws
of the State of Delaware (the "Company"), and Paul W. Emery, II (the
"Executive").
RECITALS
A. Executive is being hired to serve as an officer of the Company.
B. The Board of Directors of the Company (the "Board") recognizes that the
possibility of a Change in Control (as hereinafter defined) exists and that the
threat or the occurrence of a Change in Control can result in significant
distractions to its key management personnel because of the uncertainties
inherent in such a situation;
C. The Board has determined that it is essential and in the best interest
of the Company and its stockholders to obtain and retain the services of the
Executive in the event of a threat or occurrence of a Change in Control and to
ensure the Executive's continued dedication and efforts in such event without
undue concern for the Executive's personal, financial and employment security;
and
D. In order to induce the Executive to accept employment with the Company,
particularly in the event of a threat or the occurrence of a Change in Control,
the Company desires to enter into this Agreement with the Executive to provide
the Executive with certain benefits in the event that the Executive's employment
is terminated as a result of, or in connection with, a Change in Control.
AGREEMENT
In consideration of the respective agreements of the parties contained
herein, it is agreed as follows:
1. Term Of Agreement. This Agreement shall commence as of the date first
set forth above and shall continue in effect until July 10, 2001; provided,
however, that commencing on July 10, 2000 and on each July 10 thereafter, the
term of this Agreement shall automatically be extended for one (1) year unless
the Company or the Executive shall have given written notice to the other at
least ninety (90) days prior thereto that the term of this Agreement shall not
be so extended; and provided, further, however, that notwithstanding any such
notice by the Company not to extend, the term of this Agreement shall not expire
prior to the expiration of twelve (12) months after the occurrence of a Change
in Control.
2. Definitions.
2.1. Accrued Compensation. For purposes of this Agreement, "Accrued
Compensation" shall mean an amount which shall include all amounts earned or
accrued through the "Termination Date" (as hereinafter defined) but not paid as
of the Termination Date,
<PAGE> 2
including (i) base salary, (ii) reimbursement for reasonable and necessary
expenses incurred by the Executive on behalf of the Company during the period
ending on the Termination Date, (iii) vacation pay and (iv) bonuses and
incentive compensation (other than the Pro Rata Bonus (as hereinafter defined)).
2.2. Base Amount. For purposes of this Agreement, "Base Amount" shall
mean the greater of the Executive's annual base salary (a) at the rate in effect
on the Termination Date or (b) at the highest rate in effect at any time during
the ninety (90) day period prior to the Change in Control, and shall include all
amounts of base salary that are deferred under the Executive benefit plans of
the Company or any other agreement or arrangement.
2.3. Bonus Amount. For purposes of this Agreement, "Bonus Amount" shall
mean the greatest of: (a) 100% of the annual bonus payable to the Executive
under the Company's Executive Management Bonus Plan for the fiscal year in which
the Termination Date occurs; (b) the annual bonus paid or payable to the
Executive under the Company's Executive Management Bonus Plan for the full
fiscal year ended prior to the fiscal year during which the Termination Date
occurred; (c) the annual bonus paid or payable to the Executive under the
Company's Executive Management Bonus Plan for the full fiscal year ended prior
to the fiscal year during which a Change in Control occurred; (d) the average of
the annual bonuses paid or payable to the Executive under the Company's
Executive Management Bonus Plan during the three full fiscal years ended prior
to the fiscal year during which the Termination Date occurred; or (e) the
average of the annual bonuses paid or payable to the Executive under the
Company's Executive Management Bonus Plan during the three (3) full fiscal years
ended prior to the fiscal year during which the Change in Control occurred.
2.4. Cause. The Company may terminate this Agreement for Cause (as
defined) at any time upon written notice. For purposes of this Agreement, the
term "Cause" shall mean: (i) a material breach of any term of this Agreement and
failure to cure such breach within ten (10) days after written notice thereof
from the Company; (ii) the willful and continued failure by Executive
substantially to perform his duties for the Company (other than any such failure
resulting from his incapacity due to death or physical or mental illness), after
written demand for substantial performance is delivered to Executive by the
Company, which specifically identifies the manner in which the Company believes
that Executive has not substantially performed his duties; (iii) the failure by
Executive to follow the reasonable instructions of the Board of Directors; (iv)
the willful engaging by Executive in misconduct that is materially injurious to
the Company, monetarily or otherwise; (v) Executive's final conviction for fraud
or of any felony; or (vi) Executive's habitual use of illegal drugs and/or abuse
of alcohol; provided, however, that as to alcohol abuse, Executive shall be
given notice and a thirty (30) day opportunity to remedy the problem. For
purposes of this paragraph, no act, or failure to act, on Executive's part shall
be considered "willful" unless done, or omitted to be done, by Executive other
than in good faith and without reasonable belief that Executive's action or
omission was in the best interest of the Company.
2
<PAGE> 3
2.5. Change In Control.
(a) For purposes of this Agreement, "Change of Control" shall mean:
(i) any "person" as such term is defined in Sections 13(d) and
14(d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), other than (1) a trustee or other fiduciary holding securities under
an Executive benefit plan of the Company, (2) a corporation owned, directly
or indirectly, by the stockholders of the Company in substantially the same
proportions as their ownership of stock of the Company, or (3) any current
beneficial stockholder or group, as defined by Rule 13d-5 of the Exchange
Act, of securities possessing more than twenty-five percent (25%) of the
total combined voting power of the Company's outstanding securities,
hereafter becomes the "beneficial owner," as defined in Rule 13d-3 under of
the Exchange Act, directly or indirectly, of securities of the Company
representing twenty-five percent (25%) or more of the total combined voting
power of the Company's then outstanding securities; or
(ii) during any period of two (2) consecutive years,
individuals who at the beginning of such period constitute the Board of
Directors of the Company and any new director whose election by the Board
of Directors or nomination for election by the Company's stockholders was
approved by a vote of at least two-thirds (2/3) of the directors then still
in office who either were directors at the beginning of the period or whose
election or nomination for election was previously so approved, cease for
any reason to constitute a majority thereof; or
(iii) the stockholders of the Company approve a merger or
consolidation of the Company with any other corporation, other than a
merger or consolidation which would result in the voting securities of the
Company outstanding immediately prior thereto continuing to represent
(either by remaining outstanding or by being converted into voting
securities of the surviving entity) at least eighty percent (80%) of the
total voting power represented by the voting securities of the Company or
such surviving entity outstanding immediately after such merger or
consolidation, or the stockholders of the Company approve a plan of
complete liquidation of the Company or an agreement for the sale or
disposition by the Company, in one transaction or a series of transactions,
of all or substantially all of the Company's assets; or
(iv) the sale of substantially all of the Company's assets.
2.6. Company. For purposes of this Agreement, the "Company" shall mean
MTI Technology Corporation and its Subsidiaries and shall include MTI's
Successors and Assigns (as hereinafter defined).
2.7. Disability. For purposes of this Agreement, "Disability" shall mean
a physical or mental infirmity which impairs the Executive's ability to
substantially perform the Executive's duties with the Company for a total period
of ninety (90) days and the Executive has not returned to full time employment
prior to the Termination Date as stated in the "Notice of Termination."
3
<PAGE> 4
2.8. Good Reason.
(a) For purposes of this Agreement, "Good Reason" shall mean any of
the events or conditions described in subsections (1) through (8) hereof:
(i) a change in the Executive's status, title, position or
responsibilities (including reporting responsibilities) which, in the
Executive's reasonable judgment, represents an adverse change from the
Executive's status, title, position or responsibilities as in effect at any
time within ninety (90) days preceding the date of a Change in Control or
at any time thereafter; the assignment to the Executive of any duties or
responsibilities which, in the Executive's reasonable judgment, are
inconsistent with the Executive's status, title, position or
responsibilities as in effect at any time within ninety (90) days preceding
the date of a Change in Control or at any time thereafter; or any removal
of the Executive from or failure to reappoint or reelect the Executive to
any of such offices or positions, except in connection with the termination
of the Executive's employment for Disability, Cause, as a result of the
Executive's death or by the Executive;
(ii) a reduction in the Executive's base salary or any failure
to pay the Executive any compensation or benefits to which the Executive is
entitled within ten (10) days of the date due after receipt of written
notice from Executive;
(iii) the Company's requiring the Executive to be based at any
place outside a 25-mile radius from the Company's Anaheim Office, located
at 4905 East La Palma Avenue, Anaheim, California 92807, except for
reasonably required travel on the Company's business which is not
materially greater than such travel requirements prior to the Change in
Control;
(iv) the failure by the Company to (A) continue in effect
(without reduction in benefit level and/or reward opportunities) any
material compensation or Executive benefit plan in which the Executive was
participating at any time within ninety (90) days preceding the date of a
Change in Control or at any time thereafter unless such plan is replaced
with a plan that provides substantially equivalent compensation or benefits
to the Executive, or (B) provide the Executive with compensation and
benefits, in the aggregate, at least equal (in terms of benefit levels
and/or reward opportunities) to those provided for under each other
Executive benefit plan, program and practice in which the Executive was
participating at any time within ninety (90) days preceding the date of a
Change in Control or at any time thereafter;
(v) the insolvency or the filing (by any party, including the
Company) of a petition for bankruptcy of the Company, which petition is not
dismissed within sixty (60) days;
(vi) any material breach by the Company of any provision of
this Agreement, and failure of the Company to cure such breach within ten
(10) days
4
<PAGE> 5
from the Company's receipt of written notice from the Executive setting
forth the nature of the alleged breach;
(vii) any purported termination of the Executive's employment
for Cause by the Company which does not comply with the terms of Section
2.4; or
(viii) the failure of the Company to obtain an agreement,
satisfactory to the Executive, from any Successors and Assigns to assume
and agree to perform this Agreement, as contemplated in Section 6 hereof.
(b) The Executive's right to terminate the Executive's employment
pursuant to this Section 2.8 shall not be affected by the Executive's incapacity
due to physical or mental illness.
2.9. Notice Of Termination. For purposes of this Agreement, "Notice of
Termination" shall mean a written notice of termination of the Executive's
employment from the Company, which notice indicates the date on which
termination is to be effective, the specific termination provision in this
Agreement relied upon and which sets forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of the Executive's
employment under the provision so indicated.
2.10. Pro Rata Bonus. For purposes of this Agreement, "Pro Rata Bonus"
shall mean an amount equal to the Bonus Amount multiplied by a fraction the
numerator of which is the number of days in the fiscal year through the
Termination Date and the denominator of which is 365.
2.11. Successors And Assigns. For purposes of this Agreement,
"Successors and Assigns" shall mean a corporation or other entity acquiring all
or substantially all of the assets and business of the Company (including this
Agreement) whether by operation of law or otherwise.
2.12. Termination Date. For purposes of this Agreement, "Termination
Date" shall mean in, the case of the Executive's death, the Executive's date of
death, in the case of Good Reason, the last day of the Executive's employment
and, in all other cases, the date specified in the Notice of Termination;
provided, however, that if the Executive's employment is terminated by the
Company for Cause or due to Disability, the date specified in the Notice of
Termination shall be at least thirty (30) days from the date the Notice of
Termination is given to the Executive, provided that, in the case of Disability,
the Executive shall not have returned to the full-time performance of the
Executive's duties during such period of at least thirty (30) days.
3. Termination Of Employment.
3.1. If, during the term of this Agreement, the Executive's employment
with the Company shall be terminated within twelve (12) months following a
Change in Control, the Executive shall be entitled to the following compensation
and benefits:
5
<PAGE> 6
(a) If the Executive's employment with the Company shall be
terminated (1) by the Company for Cause or Disability, (2) by reason of the
Executive's death or (3) by the Executive other than for Good Reason, the
Company shall pay to the Executive the Accrued Compensation and, if such
termination is other than by the Company for Cause, the Company shall also pay
the Executive a Pro Rata Bonus.
(b) If the Executive's employment with the Company shall be
terminated for any reason other than as specified in Section 3.1(a), the
Executive shall be entitled to the following:
(i) the Company shall pay the Executive all Accrued
Compensation and a Pro Rata Bonus;
(ii) the Company shall pay the Executive as severance pay and
in lieu of any further compensation for periods subsequent to the
Termination Date, in a single payment, an amount in cash equal to the sum
of (A) the Base Amount and (B) the Bonus Amount; and
(iii) for a number of months equal to twelve (12) (the
"Continuation Period"), the Company shall, at its expense, continue on
behalf of the Executive and the Executive's dependents and beneficiaries
the life insurance, disability, medical, dental and hospitalization
benefits provided (A) to the Executive at any time during the 90-day period
prior to the Change in Control or at any time thereafter or (B) to other
similarly situated executives who continue in the employ of the Company
during the Continuation Period. The coverage and benefits (including
deductibles and costs) provided in this Section 3.1(b)(iii) during the
Continuation Period shall be no less favorable to the Executive and the
Executive's dependents and beneficiaries, than the most favorable of such
coverages and benefits during any of the periods referred to in clauses (A)
and (B) above. The Company's obligation hereunder with respect to the
foregoing benefits shall be limited to the extent that the Executive
obtains any such benefits pursuant to a subsequent employer's benefit
plans, in which case the Company may reduce the coverage of any benefits it
is required to provide the Executive hereunder as long as the aggregate
coverages and benefits of the combined benefit plans are no less favorable
to the Executive than the coverages and benefits required to be provided
hereunder. This subsection (iii) shall not be interpreted so as to limit
any benefits to which the Executive or the Executive's dependents or
beneficiaries may be entitled under any of the Company's Executive benefit
plans, programs or practices following the Executive's termination of
employment, including without limitation, retiree medical and life
insurance benefits.
(c) The amounts provided for in Sections 3.1(a) and 3.1(b)(i) and
(ii) shall be paid in a
single lump sum cash payment within forty-five (45) days after the Executive's
Termination Date (or earlier, if required by applicable law).
(d) The Executive shall not be required to mitigate the amount of
any payment provided for in this Agreement by seeking other employment or
otherwise, and no such
6
<PAGE> 7
payment shall be offset or reduced by the amount of any compensation or benefits
provided to the Executive in any subsequent employment except as provided in
Section 3.1(b)(iii).
3.2. (a) The severance pay and benefits provided for in this Section 3
shall be in lieu of any other severance or termination pay to which the
Executive may be entitled under any Company severance or termination plan,
program, practice or arrangement.
(b) The Executive's entitlement to any other compensation or
benefits shall be determined in accordance with the Company's Executive benefit
plans and other applicable programs, policies and practices then in effect.
4. Notice Of Termination. Within one (1) year following a Change in
Control, any purported termination of the Executive's employment shall be
communicated by Notice of Termination to the Executive. For purposes of this
Agreement, no such purported termination shall be effective without such Notice
of Termination.
5. Excise Tax Limitation.
(a) Notwithstanding anything in this Agreement to the contrary, if any
portion of any payments to Executive by the Company under this Agreement and any
other present or future plan of the Company or other present or future agreement
between Executive and the Company would not be deductible by the Company
(collectively, "Payments") for federal income tax purposes by reason of
application of Section 162(m) of the Internal Revenue Code (the "Code"), then
payment of that portion to Executive shall be deferred until the earliest date
upon which payment thereof can be made to Executive without being non-deductible
pursuant to Section 162(m) of the Code. In the event of such deferral, the
Company shall pay interest to Executive on the deferred amount at 120% of the
applicable federal rate provided for in Section 1274(d)(1) of the Code. In
addition, notwithstanding any provision of this Agreement to the contrary, the
aggregate present value of the payments and benefits (excluding those payments
and benefits not treated as parachute payments under Code Section 280G(b)) to be
made or provided to the Executive by the Company (whether pursuant to this
Agreement or otherwise) shall not exceed three times the Executive's annualized
includible compensation for the base period, as defined in Code Section 280G(d)
of the Code, minus one dollar ($1.00) (the "Limited Payment Amount"), and any
excess payments or benefits shall be forfeited; provided, however, that the
forfeiture provision of this sentence shall apply only if such forfeiture
provision results in larger aggregate after-tax payments and benefits to the
Executive than if the forfeiture provision did not apply. The intent of this
portion of this subsection 5(a) is to prevent any payment or benefit to the
Executive from being subject to the excise tax imposed by Code Section 4999 and
to prevent any item of expense or deduction of the Company from being disallowed
as a result of the application of Code Section 280G, but only if the after-tax
payments and benefits payable or provided to the Executive are greater after
application of the forfeiture provision than if the forfeiture provision did not
apply. The interpretation of this subsection 5(a), its application to any
occurrence or event, the determination of whether any payment or benefit would
not be treated as a parachute payment, the determination of the aggregate
present value of all payments and benefits to be made or provided to the
Executive, the determination of the value of the payments and benefits payable
or to be provided to the Executive after reduction for all applicable taxes, and
what specific payments or benefits otherwise available to the Executive
7
<PAGE> 8
shall be limited or eliminated by operation of this subsection 5(a) shall be
reasonably made by the Company and shall be binding on all persons.
(b) An initial determination as to whether the Payments shall be reduced
to the Limited Payment Amount and the amount of such Limited Payment Amount
shall be made, at the Company's expense, by the accounting firm that is the
Company's independent accounting firm as of the date of the Change in Control
(the "Accounting Firm"). The Accounting Firm shall provide its determination
(the "Determination"), together with detailed supporting calculations and
documentation, to the Company and the Executive within twenty (20) days of the
Termination Date if applicable, or such other time as requested by the Company
or by the Executive (provided the Executive reasonably believes that any of the
Payments may be subject to the Excise Tax), and if the Accounting Firm
determines that there is substantial authority (within the meaning of Section
6662 of the Code) that no Excise Tax is payable by the Executive with respect to
a Payment or Payments, it shall furnish the Executive with an opinion reasonably
acceptable to the Executive that no Excise Tax will be imposed with respect to
any such Payment or Payments. Within ten (10) days of the delivery of the
Determination to the Executive, the Executive shall have the right to dispute
the Determination (the "Dispute"). If there is no Dispute, the Determination
shall be binding, final and conclusive upon the Company and the Executive.
6. Successors; Binding Agreement.
(a) This Agreement shall be binding upon and shall inure to the benefit
of the Company, its Successors and Assigns and the Company shall require any
Successors and Assigns to expressly assume and agree to perform this Agreement
in the same manner and to the same extent that the Company would be required to
perform it if no such succession or assignment had taken place.
(b) Neither this Agreement nor any right or interest hereunder shall be
assignable or transferable by the Executive or the Executive's beneficiaries or
legal representatives, except by will or by the laws of descent and
distribution. This Agreement shall inure to the benefit of and be enforceable by
the Executive's legal personal representative.
7. Confidential Information. Executive understands and acknowledges that
his work as an employee of the Company involves access to and creation of
confidential, proprietary, and trade secret information of the Company and its
affiliates, consultants, customers, clients, and business associates
(collectively, as defined more extensively in Exhibit "A," "Proprietary
Information"). As part of this Agreement, Executive agrees to execute, and be
bound by, the Company's "Employee/ Consultant Proprietary Information
Agreement," a copy of which is attached hereto as Exhibit "A."
8. Notice. All notices, requests, demands, and other communications
hereunder shall be in writing, and shall be delivered in person, by facsimile,
or by certified or registered mail with return receipt requested. Each such
notice, request, demand, or other communication shall be effective (a) if
delivered by hand, when delivered at the address specified in this Section; (b)
if given by facsimile, when such facsimile is transmitted to the telefacsimile
number specified
8
<PAGE> 9
in this Section and confirmation is received; or (c) if given by certified or
registered mail, three days after the mailing thereof. Notices shall be
delivered as follows:
If to the Company:
MTI Technology Corporation
4905 E. La Palma Avenue
Anaheim, California 92807
Attention: Chief Financial Officer
Fax: (714) 693-2202
With a copy to:
Morrison & Foerster LLP
19900 MacArthur Boulevard
12th Floor
Irvine, California 92612
Attention: Tamara Powell Tate
Fax: (714) 251-0900
If to the Executive:
Paul W. Emery, II
22 Cape Woodbury
Newport Beach, California 92660
Any party may change its address by notice giving notice to the other party of a
new address in accordance with the foregoing provisions.
9. Non-Exclusivity Of Rights. Nothing in this Agreement shall prevent or
limit the Executive's continuing or future participation in any benefit, bonus,
incentive or other plan or program provided by the Company (except for any
severance or termination policies, plans, programs or practices) and for which
the Executive may qualify, nor shall anything herein limit or reduce such rights
as the Executive may have under any other agreements with the Company (except
for any severance or termination agreement). Amounts which are vested benefits
or which the Executive is otherwise entitled to receive under any plan or
program of the Company shall be payable in accordance with such plan or program,
except as explicitly modified by this Agreement.
10. No Implied Employment Rights. Executive acknowledges and agrees that
nothing in this Agreement shall be construed to imply that his employment is
guaranteed for any period of time. Executive understands that his employment is
"at will," which means that either the Company or the Executive can terminate
the employment relationship at any time, with or without advance notice, for any
reason or no reason, with or without cause. Executive understands that the only
way that his "at will" employment relationship can be altered is by a written
agreement signed by the Executive and the President of the Company.
11. Settlement Of Claims. The Company's obligation to make the payments
provided for in this Agreement and otherwise to perform its obligations
hereunder shall not be affected by
9
<PAGE> 10
any circumstances, including, without limitation, any set-off, counterclaim,
recoupment, defense or other right which the Company may have against an
Executive or others.
12. Miscellaneous. No provision of this Agreement may be modified, waived
or discharged, unless such waiver, modification or discharge is agreed to in
writing and signed by the Executive and the Company. No waiver by either party
hereto at any time of any breach by the other party hereto, or compliance with,
any condition or provision of this Agreement to be performed by such other party
shall be deemed a waiver of similar or dissimilar provisions or conditions at
the same or at any prior or subsequent time. No agreement or representation,
oral or otherwise, express or implied, with respect to the subject matter hereof
have been made by either party which are not expressly set forth in this
Agreement.
13. Governing Law. This Agreement has been negotiated and executed in the
State of California and is to be performed in Orange County, California. This
Agreement shall be governed by and interpreted in accordance with the laws of
the State of California, including all matters of construction, validity,
performance, and enforcement, without giving effect to principles of conflict of
laws. Any dispute, action, litigation, or other proceeding concerning this
Agreement shall be instituted, maintained, heard, and decided in Orange County,
California.
14. Severability. The provisions of this Agreement shall be deemed
severable and the invalidity or unenforceability of any provision shall not
affect the validity or enforceability of the other provisions hereof.
15. Entire Agreement. This Agreement constitutes the entire agreement
between the parties hereto and supersedes all prior agreements, if any,
understandings and arrangements, oral or written, between the parties hereto
with respect to the subject matter hereof.
16. Remedies. All rights, remedies, undertakings, obligations, options,
covenants, conditions, and agreements contained in this Agreement shall be
cumulative and no one of them shall be exclusive of any other.
17. Interpretation. The language in all parts of this Agreement shall be in
all cases construed simply according to its fair meaning and not strictly for or
against any party. Whenever the context requires, all words used in the singular
will be construed to have been used in the plural, and vice versa. The
descriptive headings of the sections and subsections of this Agreement are
inserted for convenience only and shall not control or affect the interpretation
or construction of any of the provisions herein.
18. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument.
19. Further Documents and Acts. Each of the parties hereto agrees to
cooperate in good faith with the other and to execute and deliver such further
instruments and perform such other acts as may be reasonably necessary or
appropriate to consummate and carry into effect the transactions contemplated
under this Agreement.
10
<PAGE> 11
20. Consultation with Counsel. Executive acknowledges (a) that he has
been given the opportunity to consult with counsel of his own choice concerning
this Agreement, and (b) that he has read and understands the Agreement, is fully
aware of its legal effect, and has entered into it freely based upon his own
judgment with or without the advice of such counsel.
EXECUTIVE ACKNOWLEDGES THAT HE HAS READ THIS AGREEMENT AND UNDERSTANDS ITS
CONTENTS. EXECUTIVE FURTHER ACKNOWLEDGES THAT THE COMPANY HAS ADVISED HIM OF HIS
RIGHT TO CONSULT WITH LEGAL COUNSEL OF HIS OWN CHOICE CONCERNING THIS AGREEMENT.
BY SIGNING THIS AGREEMENT, EXECUTIVE AND THE COMPANY AGREE TO BE BOUND BY ALL OF
THE TERMS AND CONDITIONS OF THIS AGREEMENT.
IN WITNESS WHEREOF, the Company has caused this Agreement to be executed by
its duly authorized officer and the Executive has executed this Agreement as of
the day and year first above written.
MTI TECHNOLOGY CORPORATION
By: /s/
-------------------------------------------
Title: President & CEO
/s/
-----------------------------------------------
Paul W. Emery, II
11
<PAGE> 12
EXHIBIT "A"
<PAGE> 13
STATEMENT REGARDING EMPLOYEE/CONSULTANT
PROPRIETARY INFORMATION AGREEMENT
Attached to this statement is your Employee/Consultant Proprietary Information
Agreement (the "Agreement") with MTI Technology Corporation (together with its
subsidiaries, the "Company").
Please take the time to review the Agreement carefully. It contains material
restrictions on your right to disclose or use, during or after your employment,
certain information and technology learned or developed by you during your
employment with the Company. The Company considers this Agreement to be very
important to the protection of its business.
If you have any questions concerning the Agreement, you may wish to consult an
attorney. Managers, legal counsel, and others in the Company are not authorized
to give you legal advice concerning the Agreement.
If you have read and understand the Agreement, and if you agree to its terms and
conditions, please return a fully executed copy of it to the Company, retaining
one copy for yourself.
I HAVE READ AND UNDERSTAND
THE ATTACHED AGREEMENT:
Executive Name: Paul W. Emery II
----------------------
Executive Signature: /s/
------------------
Title: COO
--------------------------------
Date:
--------------------------------
A-1
<PAGE> 14
EMPLOYEE/CONSULTANT PROPRIETARY INFORMATION AGREEMENT
In consideration of my present and future employment by MTI Technology
Corporation (together with its subsidiaries, the "Company"), I agree to the
following:
1. Proprietary Information.
(a) I understand and acknowledge that my work as an employee of the
Company has involved and will continue to involve access to and creation of
confidential, proprietary, and trade secret information of the Company and its
affiliates, consultants, customers, clients, and business associates
(collectively, as defined more extensively below, "Proprietary Information"). I
further understand and acknowledge that the Company and its clients have
developed, compiled, and otherwise obtained this Proprietary Information often
at great expense, and that such information has great value to their respective
businesses. I agree to hold in strict confidence and in trust for the sole
benefit of the Company and its clients all Proprietary Information. I further
agree that I shall treat all Proprietary Information as private, privileged, and
confidential, and that I shall not use, disclose, or release any Proprietary
Information in any way to any person, firm, or institution at any time, even
after termination of my employment, except to the extent necessary to carry out
my responsibilities as an Executive of the Company. I further understand and
agree that the publication of Proprietary Information through literature or
speeches must be approved in advance in writing by a duly authorized officer of
the Company.
(b) I understand and acknowledge that, for purposes of this Agreement,
"Proprietary Information" means all confidential, proprietary, or trade secret
information and ideas in whatever form, tangible or intangible, whether
disclosed to or learned or developed by me, prior or subsequent to the date
hereof, pertaining in any manner to the business of the Company or to the
Company's affiliates, consultants, clients, or business associates, unless: (i)
the information is or becomes publicly known through lawful means; (ii) the
information was rightfully in my possession or part of my general knowledge
prior to my employment by the Company; or (iii) the information is disclosed to
me without confidential or proprietary restriction by a third party who
rightfully possesses the information (without confidential or proprietary
restriction) and did not learn of it, directly or indirectly, from the Company.
(c) Without limiting the generality of the foregoing, I understand and
acknowledge that "Proprietary Information" includes all: (i) inventions,
computer codes, computer programs, formulas, schematics, techniques, algorithms,
employee suggestions, development tools and processes, computer printouts,
design drawings and manuals, and improvements or modification to any of the
foregoing; (ii) information about costs, profits, markets, and sales; (iii)
plans for future development and new product concepts; and (iv) all documents,
books, papers, drawings, models, sketches, and other data of any kind and
description, including electronic data recorded or retrieved by any means, that
have been or will be given to me by the Company (or any present or future
affiliates, consultants, customers, clients, and business associates of the
Company), as well as written or verbal instructions or comments.
A-2
<PAGE> 15
2. Use Of Proprietary Information.
I agree that I will maintain at my work station or in other places under my
control only such Proprietary Information that I have a current "need to know,"
and that I will return to the appropriate person or location, or otherwise
dispose of, Proprietary Information once my need to know no longer exists. I
agree that I will not make copies of information unless I have a legitimate need
for such copies in connection with my work.
3. Third-Party Information.
I recognize 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. I agree that I owe the Company
and such third parties, during the term of my employment 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 (except as
necessary in carrying out my work for the Company consistent with the Company's
agreement with such third party) or to use it for the benefit of anyone other
than for the Company or such third party (consistent with the Company's
agreement with such third party) without the express written authorization of a
duly authorized officer of the Company.
4. Inventions.
(a) Subject to Section 9 below, I hereby assign to the Company, without
additional consideration, all right, title and interest (throughout the United
States and in all foreign countries) in all ideas, processes, inventions,
technology, writings, computer programs, designs, formulas, discoveries,
patents, copyrights, trademarks, service marks, original works of authorship,
any claims or rights, and any improvements or modifications to the foregoing
(collectively, "Inventions"), whether or not subject to patent or copyright
protection, relating to any activities of the Company that have been or will be
conceived, developed, or reduced to practice by me alone or with others (i)
during the term of my employment, whether or not conceived or developed during
regular business hours, and whether or not conceived before, on, or after the
date hereof or (ii) if based on Proprietary Information, after termination of my
employment. Such Inventions shall be the sole property of the Company and, to
the maximum extent permitted by applicable law, shall be deemed works made for
hire.
(b) I will, whether during or after my employment by the Company,
execute such written instruments and do other such acts as may be necessary in
the opinion of the Company to obtain a patent, register a copyright, or
otherwise enforce the Company's rights in such Inventions (and I hereby
irrevocably appoint the Company and any of its officers as my attorney in fact
to undertake such acts in my name).
(c) I understand that the assignment by me to the Company does not apply
to Inventions that qualify fully under Section 2870(a) of the California Labor
Code, which is set forth on Schedule "A." I understand that nothing in this
Agreement is intended to expand the scope of protection provided by Sections
2870 through 2872 of the California Labor Code. Except as disclosed in Schedule
"B", there are no ideas, inventions, technology, computer programs, processes,
trademarks, service marks, original works of authorship, designs, formulas,
A-3
<PAGE> 16
discoveries, patents, copyrights, any claims or rights, and any improvements or
modifications to the foregoing that I wish to exclude from the operation of this
Agreement.
(d) To the best of my knowledge, there is no existing contract in
conflict with this Agreement or any other contract in existence between me and
any other person or entity to assign ideas, inventions, technology, computer
programs, processes, trademarks, service marks, original works of authorship,
designs, formulas, discoveries, patents, copyrights, any claims or rights, and
any improvements or modifications to the foregoing.
5. Termination of Employment.
(a) I hereby acknowledge and agree that nothing in this Agreement shall
be construed to imply that the term of my employment is of any definite
duration. I further acknowledge and agree that I am employed on an "at-will"
basis, which means that I may quit at any time with or without cause, and the
Company may terminate my employment at any time with or without cause.
(b) I acknowledge that, because of my responsibilities at the Company, I
have helped and will continue to help to develop and have been and will be
exposed to the Company's research and development, products, business
strategies, information on customers and clients, and other valuable Proprietary
Information, and that use or disclosure of such Proprietary Information in
breach of this Agreement would be extremely difficult to detect or prove. I also
acknowledge that the Company's relationships with its employees, affiliates,
consultants, customers, clients, business associates, and other persons are
valuable business assets. To forestall any use or disclosure of Proprietary
Information in breach of this Agreement, I agree that for the term of this
Agreement and for a period of one (1) year after termination of my employment
with the Company, I shall not, for myself or any third party, directly or
indirectly:
(i) divert or attempt to divert from the Company any business of any
kind in which it is engaged, including, without limitation, the
solicitation of or interference with any of its suppliers or customer; or
(ii) employ, solicit for employment, or recommend for employment any
person employed by the Company.
Furthermore, I agree that during the period of my employment with the
Company I shall not engage in any business activity that is or may be
competitive with the Company. I understand that none of my activities will be
prohibited under this section if I can prove that the action was taken without
the use in any way of Proprietary Information.
(c) I acknowledge that, because of the difficulty of establishing when
any Invention is first conceived or developed by me, or whether it results from
access to Proprietary Information or the Company's equipment, facilities, and
data, I agree that any ideas, inventions, technology, computer programs,
processes, trademarks, service marks, original works of authorship, designs,
formulas, discoveries, patents, copyrights, any claims or rights, and any
improvements or modifications to the foregoing shall be presumed to be an
Invention if conceived, developed, used, sold, exploited, or reduced to practice
by me or with my aid within one (1) year after my termination of employment with
the Company. I can rebut the above
A-4
<PAGE> 17
presumption if I prove that the invention, idea, process, etc., is not an
Invention as defined in paragraph 4(a).
(d) I hereby acknowledge and agree that all personal property including,
without limitation, all books, manuals, records, models, drawings, reports,
notes, contracts, lists, files, computer software, computer tapes or disks,
blueprints, and other documents or materials (or copies thereof), Proprietary
Information, and equipment furnished to or prepared by me in the course of or
incident to my employment, belong to the Company and shall be promptly returned
to the Company once my employment with the Company is terminated, for any
reason. I will not retain any written or other tangible information pertaining
to any Invention. In the event of the termination of my employment, I agree to
sign and deliver the Termination Certificate attached as Schedule "C" to this
Agreement.
(e) I understand that my obligations contained in this Agreement will
survive the termination of my employment with the Company, and that I will
continue to make all disclosures required of me by Paragraph 6.
6. Disclosure.
I agree to maintain adequate and current written records on the development
of all Inventions and to disclose promptly to the Company all Inventions and
relevant records, which records will remain the sole property of the Company. I
further agree that all information and records pertaining to any Inventions
conceived, developed, or reduced to practice by me (alone or with others) during
my period of employment or during the one-year period following termination of
my employment, shall be promptly disclosed to the Company (any such disclosures
made after the termination of my employment shall be received by the Company in
confidence for the purpose of determining if they have been based on any
Proprietary Information). The Company shall examine such information to
determine if in fact such information are Inventions subject to this Agreement.
7. Former or Conflicting Agreements.
During my employment with the Company, I will not disclose to the Company,
or use, or induce the Company to use, any confidential, proprietary, or trade
secret information of others. I represent and warrant that I have returned all
property and confidential, proprietary and trade secret information belonging to
all prior employers, if any. I further represent and warrant that my performance
of the terms of this Agreement will not breach any agreement to keep in
confidence confidential proprietary and trade secret information acquired by me
in confidence or in trust prior to my employment by the Company. I have not
entered into, and I agree I will not enter into, any oral or written agreement
in conflict herewith.
8. Information on Company Premises.
I acknowledge that all information generated, received, or maintained by or
for me on the premises or equipment of the Company (including, without
limitation, computer systems and electronic-mail or voicemail systems) is the
property of the Company, and I hereby waive any property or privacy rights that
I may have with respect to such information.
A-5
<PAGE> 18
9. Reserved Inventions.
To avoid future confusion, I have listed on Schedule "B" a description of
all Inventions, if any, developed or conceived by me in which I claim any
ownership or other right. I understand that, by not listing an Invention, I am
acknowledging that the Invention was not developed or conceived before
commencement of my employment.
10. Choice of Law.
The validity, interpretation, enforceability, and performance of this
Agreement shall be governed by and construed in accordance with the laws of the
State of California without giving effect to its conflict of law rules. Any
dispute, action, litigation, or other proceeding concerning this Agreement shall
be instituted, maintained, heard, and decided in Orange County, California.
11. Remedies.
I recognize that nothing in this Agreement is intended to limit any remedy
of the Company under the California Uniform Trade Secrets Act and that I could
face possible criminal and civil actions, resulting in imprisonment and
substantial monetary liability, if I misappropriate the Company's or its
clients' trade secrets. In addition, I recognize that my violation of this
Agreement could cause the Company irreparable harm and significant injury, the
amount of which may be extremely difficult to estimate, thus, making any remedy
at law or in damages inadequate. Therefore, I agree that, in the event of a
breach or threatened breach that involves Proprietary Information of the Company
or its clients, the Company shall have the right to apply to any court of
competent jurisdiction for an order restraining any breach or threatened breach
of this Agreement and for any other relief the Company deems appropriate. This
right shall be in addition to any other remedy available to the Company in law
or equity.
12. Successors and Assigns.
(a) I understand and agree that the Company may assign to another
person or entity any of its rights under this Agreement.
(b) I further understand and agree that this Agreement shall be binding
upon me and my heirs, executors, administrators, and successors, and shall
inure to the benefit of the Company's successors and assigns.
13. Severability.
If any provision of this Agreement is determined to be invalid, illegal or
unenforceable, the validity or enforceability of the other provisions shall not
be affected.
A-6
<PAGE> 19
14. Entire Agreement.
The terms of this Agreement are the final expression of my agreement with
respect to the subject matter hereof and may not be contradicted by evidence of
any prior or contemporaneous agreement. This Agreement shall constitute the
complete and exclusive statement of its terms and no extrinsic evidence
whatsoever may be introduced in any judicial, administrative, or other legal
proceeding involving this Agreement. No modification or amendment of this
Agreement shall be binding unless executed in writing by me and a duly
authorized officer of the Company.
I HAVE READ THIS AGREEMENT CAREFULLY AND UNDERSTAND ITS TERMS. I HAVE COMPLETELY
NOTED ON SCHEDULE "B" TO THIS AGREEMENT ANY PROPRIETARY INFORMATION, IDEAS,
PROCESSES, CREATIONS, TECHNOLOGY, INVENTIONS, PATENTS, COPYRIGHTS, OR
TRADEMARKS, WRITINGS, PROGRAMS, DESIGNS, FORMULAS, DISCOVERIES, OR IMPROVEMENTS,
RIGHTS, OR CLAIMS RELATING TO THE FOREGOING, THAT I DESIRE TO EXCLUDE FROM THIS
AGREEMENT.
This Agreement is made and entered into as of _________________, 2000.
MTI TECHNOLOGY CORPORATION
By: /s/
------------------------------------------
Title: President & CEO
Executive: Paul W. Emery II
----------------------------------
Signature: /s/
-----------------------------------
A-7
<PAGE> 20
SCHEDULE A
California Labor Code Section 2870(a)
Any provision in an employment agreement which provides that an
employee shall assign, or offer to assign, any of his or her rights in an
invention to his or her employer shall not apply to an invention that the
employee developed entirely on his or her own time without using the employer's
equipment, supplies, facilities, or trade secret information, except for those
inventions that either:
(1) Relate at the time of conception or reduction to practice of the
invention to the employer's business, or actual or demonstrably anticipated
research or development of the employer; or
(2) Result from any work performed by the employee for the employer.
Schedule A
<PAGE> 21
SCHEDULE B
1. Proprietary Information. Except as set forth below, I acknowledge that at
this time I know nothing about the business or Proprietary Information of
the Company, other than information I have learned from the Company in the
course of being hired:
---------------------------------------------------------------------------
---------------------------------------------------------------------------
---------------------------------------------------------------------------
---------------------------------------------------------------------------
2. Reserved Inventions. Except as set forth below, there are no ideas,
processes, inventions, technology, writings, programs, designs, formulas,
discoveries, patents, copyrights, or trademarks, or any claims, rights, or
improvements to the foregoing, that I wish to exclude from the operation of
this Agreement:
---------------------------------------------------------------------------
---------------------------------------------------------------------------
---------------------------------------------------------------------------
---------------------------------------------------------------------------
Name:
-------------------------------
Signature:
---------------------------
Date:
-------------------------------
Schedule B
<PAGE> 22
SCHEDULE C
TERMINATION CERTIFICATE
This is to certify that I have returned all personal property of the
Company, including, without limitation, all books, manuals, records, models,
drawings, reports, notes, contracts, lists, blueprints, and other documents and
materials, Proprietary Information, and equipment furnished to or prepared by me
in the course of or incident to my employment with the Company, and that I did
not make or distribute any copies of the foregoing.
I further certify that I have reviewed the Employee/Consultant Proprietary
Information Agreement signed by me and that I have complied with and will
continue to comply with all of its terms including, without limitation: (i) the
reporting of any invention, process, idea, etc. conceived or developed by me and
covered by the Agreement; and (ii) the preservation as confidential of all
Proprietary Information pertaining to the Company. This certificate in no way
limits my responsibilities or the Company's rights under the Agreement.
On termination of my employment with the Company, I will be employed by
[NAME OF EMPLOYER AND DIVISION/DEPARTMENT THAT EMPLOYEE WILL BE IN], and I will
be working in connection with the following projects:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Name:
--------------------------------
Signature:
---------------------------
Date:
---------------------------------
Schedule C
