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EXHIBIT 10.28
SEVERANCE AGREEMENT
This Severance Agreement (the "Agreement") by and between MTI
Technology Corporation ("MTI" or "the Company") and Earl Pearlman ("Pearlman")
documents the terms and conditions of Pearlman's termination from the Company's
employment, effective November 30, 1999 (the "Termination Date").
RECITALS
On or about April 8, 1996, MTI agreed to employ Pearlman as the
Company's President.
On or about November 24, 1999, MTI and Pearlman mutually agreed to
terminate Pearlman's employment. MTI does not have a uniform policy or practice
of granting particular severance benefits to its employees or executives.
However, MTI offered to pay to Pearlman only those severance benefits described
in the paragraphs that follow in exchange for Pearlman's release of all claims
against the Company. Pearlman accepted this offer.
NOW, THEREFORE, in consideration of the recitals listed above, and
the mutual promises contained in this Agreement, Pearlman and the Company
agree, covenant, and represent as follows:
AGREEMENT
1. The Parties' Responsibilities
a. Upon the Effective Date of this Agreement by all parties, MTI
shall pay to Pearlman a one-time lump sum payment equivalent to eighteen (18)
months of his current base salary plus car allowance plus his base bonus as
calculated under the FY2000 Executive Manager Bonus Plan (the "Severance
Payment"). The gross amount of the Severance Payment shall be $599,100.
Pearlman acknowledges that MTI shall withhold from the Severance Payment all
applicable payroll taxes, including federal and state income taxes, as well as
other authorized deductions, and that the net amount of the Severance Payment
shall therefore be: $322,800.
b. Upon the Effective Date of this Agreement, MTI shall also pay to
Pearlman all unpaid vacation pay he has accrued or will accrue as of the
Termination Date (the "Vacation Payment"). The gross amount of the Vacation
Payment shall be $38,077. Pearlman acknowledges that MTI shall withhold from
the Vacation Payment all applicable payroll taxes, including federal and state
income taxes, as well as other authorized deductions, and that the net amount
of the Severance Payment shall therefore be: $21,152.
c. Effective December 1, 1999, MTI and Pearlman agree that Pearlman
shall be retained by MTI as a consultant pursuant to the terms and conditions
of the Consulting Agreement attached as Exhibit "A" (the "Consulting
Agreement").
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d. Pearlman acknowledges that, as of December 1, 1999, he may be
eligible to obtain continuing coverage under MTI's group medical, vision, and
dental plans pursuant to the provisions of the Consolidated Omnibus
Reconciliation Act and its implementing regulations ("COBRA"). MTI acknowledges
and agrees that, from December 1, 1999 to March 31, 2001, MTI will make the
required premium payments for any COBRA continuation coverage that Pearlman
elects to obtain. In no event shall MTI be liable for, or required to pay
premiums for, any COBRA continuation coverage Pearlman may elect or be eligible
to obtain after March 31, 2001. MTI further acknowledges and agrees that, from
December 1, 1999 until March 31, 2001, MTI will reimburse Pearlman for medical,
vision, and dental expenses incurred by Pearlman that are not covered by
Pearlman's COBRA continuation coverage but that would be covered under MTI's
existing Executive Medical Plan.
e. This Agreement has been approved by the MTI Board of
Directors' Compensation Committee in all respects. MTI agrees that Pearlman's
Option Agreements shall remain in full force and effect during the term of the
Consulting Agreement. Pearlman understands and agrees that his right to
exercise these shares shall be in accordance with the terms and conditions his
Option Agreements with the MTI and the MTI Technology Corporation 1996 Stock
Incentive Plan, as amended (the "Stock Incentive Plan").
f. Pearlman and MTI agree, covenant and represent that Pearlman
shall not be eligible for, or entitled to, any benefits of employment other
than those specifically identified in this Agreement.
g. MTI agrees that it will reimburse Pearlman for any legal
expenses he incurs, up to a maximum of $5,000, related to the review of the
Agreement, and all Attachments and Exhibits.
h. Pearlman agrees, covenants and represents that he shall
cooperate with MTI in the orderly transfer of his responsibilities to other
MTI employees. Pearlman further agrees, covenants and represents that he shall
cooperate in good faith with MTI in the defense of any action that has been or
will be brought against MTI that arises out of, or relates in any way to his
employment with MTI. MTI agrees, covenants and represents that it shall
indemnify and hold Pearlman harmless to the extent required by law for all that
Pearlman necessarily expends or loses in direct consequence of the discharge of
his duties under this paragraph 1(h).
i. The parties agree, covenant and represent that the list that
comprises Exhibit "C" fully and completely describes all of the stock options
to which Pearlman shall ever be entitled pursuant to the terms and conditions
of this Agreement and MTI's Stock Option Agreement, and that Pearlman shall not
be entitled to any options other than those listed in Exhibit "C".
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2. Release
a. In consideration of the promises specified in this Agreement and
for other good and valuable consideration, the receipt and adequacy of which
are hereby acknowledged, Pearlman, for himself and his heirs, assigns,
executors, administrators, and agents, past and present (collectively, the
"Pearlman Affiliates"), hereby fully and without limitation releases, covenants
not to sue, and forever discharges MTI and its respective subsidiaries,
divisions, affiliated corporations, affiliated partnerships, parents, trustees,
directors, officers, shareholders, partners, agents, employees,
representatives, consultants, attorneys, heirs, assigns, executors and
administrators, predecessors and successors, past and present (collectively,
the "MTI Releases"), both individually and collectively, from any and all
rights, claims, demands, liabilities, actions and causes of action whether in
law or in equity, suits, damages, losses, workers' compensation claims,
attorneys' fees, costs, and expenses, of whatever nature whatsoever, known or
unknown, fixed or contingent, suspected or unsuspected ("Claims"), that Pearlman
or the Pearlman Affiliates now have, or may ever have, against any of the MTI
Releases that arise out of or are in any way related to: (i) Pearlman's
employment by MTI or any of the other MTI Releases; (ii) the termination of
Pearlman's employment by MTI or any of the other MTI Releases; and (iii) any
transactions, occurrences, acts or omissions by MTI or any of the other MTI
Releases occurring prior to the Effective Date of this Agreement.
b. Without limiting the generality of the foregoing, Pearlman
specifically and expressly releases any Claims occurring prior to the Effective
Date of this Agreement arising out of or related to violations of any federal or
state employment discrimination law, including the California Fair Employment
and Housing Act; Title VII of the Civil Rights Act of 1964; the Americans With
Disabilities Act, the National Labor Relations Act; the Equal Pay Act, the
Employee Retirement Income Security Act of 1974; as well as Claims arising out
of or related to violations of the provisions of the California Labor Code;
state and federal wage and hour laws; breach of contract; fraud;
misrepresentations; common counts; unfair competition; unfair business
practices; negligence; defamation; infliction of emotional distress; invasion of
privacy, assault, battery, false imprisonment, wrongful termination; and any
other state or federal law, rule, or regulation.
c. Pearlman agrees, covenants, and represents that he has not
commenced, and, that he shall never commence or pursue, a claim for workers'
compensation benefits of any kind relating to or resulting from his employment
with MTI or any of the other MTI Releases. Pearlman further agrees, covenants,
and represents that, in the event that he has filed or does file a claim for
workers' compensation benefits, MTI may, but is not required to, present this
Agreement to the Workers' Compensation Appeals Board for approval as a
compromise and release.
d. MTI hereby fully and without limitation releases, covenants not
to sue, and forever discharges Pearlman, and his successors, assigns, heirs,
agents and attorneys, from any and all Claims that MTI now has, or may ever
have, against Pearlman that arise out of, or are in any way related to: (i)
Pearlman's employment by MTI; (ii) the
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termination of Pearlman's employment by MTI; and (iii) any acts or omissions by
Pearlman occurring prior to the Effective Date of this Agreement.
3. Warranties and Representations
Pearlman acknowledges that he is aware of and familiar with the
provisions of Section 1542 of the California Civil Code, which provides as
follows:
"A general release does not extend to claims which the creditor 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 debtor."
Pearlman hereby waives and relinquish all rights and benefits which
he may have under Section 1542 of the California Civil Code, or the law of any
other state or jurisdiction, or common law principle, to the same or similar
effect. Pearlman represents and warrants that he has the authority to enter
into this Agreement and to bind all persons and entities claiming through him.
4. Confidentiality and Non-Disparagement
a. Pearlman agrees, covenants and represents that the facts
relating to the existence of this Agreement, the negotiations leading to the
execution of this Agreement, the terms of this Agreement and the amounts of the
Severance Payment and the Supplemental Payment shall be held in confidence, and,
except as required by law or by SEC regulations, shall not be disclosed,
communicated or divulged, to any person other than those who must perform tasks
to effectuate this Agreement, without first obtaining MTI's written consent to
each disclosure.
b. Pearlman further agrees, covenants and represents that he shall
not take any action or make any comments that actually or potentially
disparage, disrupt, damage, impair, or otherwise interfere with MTI's business
interests or reputation.
c. MTI agrees, covenants and represents that, except as required by
law or by SEC regulations, the facts relating to the existence of this
Agreement, the negotiations leading to the execution of this Agreement, the
terms of this Agreement and the amounts of the Severance Payment and the
Supplemental Payment shall be held in confidence, and shall not be disclosed,
communicated or divulged, to any person other than those who must perform tasks
to effectuate the Agreement, without first obtaining Pearlman's written consent
to each disclosure.
d. Concurrently, with the execution of this Agreement, Mr. Raymond
Noorda shall execute the open letter of reference attached to this Agreement as
Exhibit "D". Pearlman agrees, covenants and represents that he shall instruct
any prospective employer seeking a reference regarding his employment with MTI
Technology Corporation, to communicate with Mr. Noorda, or such other
individual as Mr. Noorda may from time to time designate in writing to
Pearlman. The parties agree, covenant and
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represent that Mr. Noorda or his designee may respond to any such reference
request by providing information substantially similar to that contained in
Exhibit "D". MTI and Mr. Noorda shall not have any further obligations with
respect to providing an employment reference of any type for Pearlman.
5. Trade Secrets
a. Pearlman acknowledges that he executed a Proprietary Information
Agreement dated May 17, 1995, and that he shall continue to be bound by this
Proprietary Information Agreement following the termination of his employment
with MTI. A copy of the Proprietary Information Agreement is attached to this
Agreement as Exhibit "B".
b. Pearlman acknowledges that the Company's relationships with its
employees, affiliates, consultants, customers, clients, business associates,
and other persons are valuable business assets. Accordingly, Pearlman agrees,
covenants and represents that he will not, for himself 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 or interference with any of its suppliers or customers; or, (ii)
employ, solicit for employment, or recommend for employment any person employed
by MTI, for a period of eighteen (18) months from the effective date of this
agreement.
6. Confirmation of Payment of Wages.
Pearlman acknowledges and agrees that he has been paid all wages due
and owing to him as of the Effective Date of this Agreement, and that he has
been paid all accrued but unused vacation pay.
7. Non-Admission of Liability.
Pearlman agrees, covenants and represents that this Agreement shall
not be treated as an admission of liability by MTI, at any time, for any
purpose, and that this Agreement shall not be admissible in any proceeding
between the parties except a proceeding relating to a breach of its provisions
after execution, or a proceeding to obtain approval of this Agreement as a
compromise and release as provided in Paragraph 2(c) of this Agreement.
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8. Successors and Assigns.
This Agreement shall be binding upon and shall inure to the
benefit of the respective heirs, assigns, executors, administrators,
successors, subsidiaries, divisions and affiliated corporations and
partnerships, past and present, and trustees, directors, officers,
shareholders, partners, agents and employees, past and present, of Pearlman and
MTI.
9. Ambiguities
This Agreement has been reviewed by the parties. The parties
have had a full opportunity to negotiate the terms and conditions of this
Agreement. Accordingly, the parties expressly waive any common-law or statutory
rule of construction that ambiguities should be construed against the drafter
of this Agreement, and agree, covenant, and represent that the language in all
parts of this Agreement shall be in all cases construed as a whole, according
to its fair meaning.
10. Choice of 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 regard to California's conflict of laws rules.
11. Integration
This Agreement; the Consulting Agreement attached as Exhibit
"A;" Pearlman's Option Agreements with the Company; MTI's Stock Incentive Plan;
and the Proprietary Information Agreement attached as Exhibit "B" constitute a
single, integrated written contract expressing the entire agreement of the
parties. There is no other agreement, written or oral, express or implied,
between the parties with respect to the subject matter hereof. This Agreement
may not be orally modified. This Agreement may only be modified in a written
instrument signed by both parties.
12. Severability
a. The parties to this Agreement agree, covenant and represent
that each and every provision of this Agreement shall be deemed to be
contractual, and that they shall not be treated as mere recitals at any time
for any purpose. Therefore, the parties further agree, covenant and represent
that each and every provision of this Agreement shall be considered severable.
If a court of competent jurisdiction finds any provision of this Agreement to
be invalid or enforceable for any reason, that provision, or part thereof,
shall remain in force and effect to the extent allowed by law, and all of the
remaining provisions of this Agreement shall remain in full force and effect
and enforceable.
b. The parties intend this Agreement to be final and binding in
all respects. Accordingly, Pearlman agrees, covenants and represents that he
shall, within a reasonable
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period of time, return to MTI all consideration paid to him, or to which he is
entitled, pursuant to paragraph 1 of this Agreement, if Pearlman files or in
any way participates in any administrative, judicial or other action or
proceeding that seeks, either in whole or in part, to invalidate any portion
of the release provisions of paragraphs 2 or 3 of this Agreement.
13. Execution of Counterparts
This Agreement may be executed in counterparts, and if so
executed and delivered, all of the counterparts together shall constitute one
and the same Agreement.
14. Captions
The captions and section numbers in this Agreement are inserted
for the readers' convenience, and in no way define, limit, construe or describe
the scope or intent of the provisions of this Agreement.
15. Miscellaneous Provisions.
a. This Agreement is subject to the terms of the Older
Workers Benefit Protection Act of 1990 (the "OWBPA"). The OWBPA provides that an
individual cannot waive a right or claim under the Age Discrimination in
Employment Act unless the waiver is knowing and voluntary. Pursuant to the terms
of the OWBPA, Pearlman acknowledges and agrees that he has executed this
Agreement voluntarily, and with full knowledge of its consequences. In addition,
Pearlman hereby acknowledges and agrees that: (a) this Agreement has been
written in a manner that is calculated to be understood, and is understood, by
him; (b) the release provisions of this Agreement apply to any rights Pearlman
may have under the Age Discrimination in Employment Act ("ADEA"), including the
right to file a lawsuit against the Company for age discrimination; (c) the
release provisions of this Agreement do not apply to any rights or claims
Pearlman may have under the ADEA that arise after the date he executes this
Agreement; (d) MTI does not have a preexisting duty to pay you the severance
payment identified in this Agreement; (e) Pearlman has been informed in writing
pursuant to this Agreement that he has the right to consult with an attorney
prior to executing this Agreement; (f) Pearlman has been given 21 days in which
to evaluate this agreement prior to executing it, but has voluntarily chosen to
execute this Agreement prior to expiration of this 21-day period; (g) Pearlman
has a period of at least seven days after execution of this Agreement in which
to revoke this Agreement and that this Agreement shall not become effective
until expiration of this seven-day period (the "Effective Date").
b. The parties represent that they have read this
Agreement and fully understand all of its terms; that they have conferred with
their attorneys, or have knowingly and voluntarily chosen not to confer with
their attorneys about this Agreement; that they have executed this Agreement
without coercion or duress of any kind; and that they understand any rights
that they have or may have and sign this Agreement with full knowledge of any
such rights.
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c. The parties acknowledge that no representations, statements or
promises made by the other party, or by their respective agents or attorneys,
have been relied on in entering into this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement, which
consists of seven pages, on the dates indicated below.
Dated: November 30, 1999. EARL PEARLMAN
/s/ EARL PEARLMAN
--------------------------
Dated:November 30, 1999, MTI TECHNOLOGY CORPORATION
BY: /s/ RAYMOND NOORDA
-----------------------
Raymond Noorda
Chairman of the Board
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EXHIBIT A
CONSULTING AGREEMENT
THIS AGREEMENT is made between MTI Technology Corporation ("MTI"), a Delaware
corporation, at 4905 East La Palma Avenue, Anaheim, California 92807 and Earl
Pearlman, an independent consultant, ("Consultant").
WHEREAS, Consultant has general expertise in the area of corporate management,
and direct experience in the tactical and strategic management of MTI.
WHEREAS, MTI has direct knowledge of Consultant's experience and areas of
expertise, is willing to engage Consultant as an independent contractor, and
not as an employee.
The parties agree to the following terms and conditions:
1.0 SCOPE OF SERVICES
1.1 Consultant will provide consulting services, as directed and requested by
MTI, in the area of general corporate management, as described in Exhibit
A.
1.2 All work will be performed at MTI's facilities and/or at specified remote
sites and will be performed in a workmanlike and professional manner by
Consultant. Consultant will at all times observe security and safety
policies of MTI, including, but not limited to, the use of Security I.D.
Badges.
1.3 The parties acknowledge and agree that MTI has no right to control the
manner, means, or method by which Consultant performs the services called
for by this Agreement. MTI will be entitled only to: (1) direct Consultant
with respect to the elements of the services to be performed by Consultant
and the results to be derived by MTI, (2) to inform Consultant as to where
and when such services will be performed, and (3) to review and assess the
performance of the services by Consultant for the limited purposes of
assuring that the services have been performed and confirming that results
are satisfactory.
2.0 TERM OF AGREEMENT
2.1 The term of this Agreement is shown in Exhibit B.
2.2 Additional assignments may be incorporated into this Agreement by an
executed Addendum to Exhibit A.
2.3 The cure period for any failure of MTI to pay fees and charges due will be
forty-five (45) days from the date MTI receives notice.
2.4 If this Agreement is terminated for any reason, Consultant will promptly
return to MTI all copies of any MTI data, records, or materials, including
all materials incorporating the proprietary information of MTI. Consultant
will also furnish to MTI all work in progress, including all incomplete
work.
2.5 Within fifteen (15) days of termination of this Agreement for any reason,
Consultant will submit to MTI an itemized invoice for any outstanding fees
or expenses under this Agreement. MTI, upon payment of the amounts
invoiced, will have no further liability or obligation to Consultant.
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3.0 FEES
3.1 In consideration of the services to be performed by Consultant, MTI will
pay Consultant the fees shown in Exhibit B.
4.0 RIGHTS IN DATA
4.1 Any MTI Work Product will be considered a "work for hire" and will remain
the exclusive property of MTI.
4.2 "MTI Work Product" means only the ideas, processes, methods, programming
aids, reports, programs, manuals, tapes, software, flowcharts, systems or
improvements, enhancements, or modifications, that the Consultant
utilizes, produces, develops, prepares, conceives, makes, or suggests in
the performance of the services under this Agreement, including all
related developments originated or conceived during the term of this
Agreement but completed or reduced to practice after termination.
4.3 All right, title, and interest in and to any programs, systems, data, and
materials furnished to MTI and/or developed, at private expense, by
Consultant outside the scope of this Agreement are and will remain the
exclusive property of Consultant. These "Consultant Products", if any, are
listed in Exhibit D.
5.0 PROPRIETARY INFORMATION
5.1 Consultant acknowledges that in order to perform the services called for
in this Agreement, it will be necessary for MTI to disclose to Consultant
certain Trade Secrets that have been developed by MTI at great expense and
that have required considerable effort of skilled professionals.
Consultant further acknowledges that the Deliverables will, of necessity,
incorporate such Trade Secrets. Consultant agrees that it will not
disclose, transfer, use, copy, or allow access to any Trade Secrets to any
employees or to any third parties, unless they have a need to know and are
consistent with the requirements of this Agreement and have signed a
Confidentiality/Non-Disclosure Agreement shown in Exhibit C.
5.2 In no event will Consultant disclose any Trade Secrets to any competitors
of MTI.
5.3 The term "Trade Secrets" means any scientific of technical data,
information, design, process, procedure, formula, or improvement that is
commercially valuable to MTI and not generally known in the industry.
5.4 The obligations of this section will survive this Agreement and continue
for as long as the material remains Trade Secrets.
6.0 CONFIDENTIALITY OF AGREEMENT; PUBLICITY; USE OF MARKS
6.1 Consultant will not disclose the nature of the effort undertaken for MTI
or the terms of this Agreement to any other person or entity, except as
may be necessary to fulfill Consultant's obligations.
6.2 Consultant will not at any time use MTI's name or any MTI trademark(s) or
trade name(s) in any advertising or publicity without the prior written
consent of MTI.
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7.0 WARRANTIES
7.1 Consultant warrants that:
a. Consultant's performance of the services and any programs, systems,
data, or materials furnished to MTI under this Agreement do not violate any
applicable law, rule, or regulation; any contracts with third parties; or
any third-party rights in any patent, trademark, copyright, trade secret;
or similar rights.
b. Any and all rights, title, and ownership interests, including
copyright, that Consultant may have in or to a MTI Work Product or any
tangible media embodying a MTI Work Product, as described in Section 4.2,
are assigned to MTI as part of this Agreement.
c. EXCEPT FOR THE EXPRESS WRITTEN WARRANTIES STATED HEREIN, CONSULTANT
DISCLAIMS ALL WARRANTIES INCLUDING ALL WARRANTIES OF MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE.
8.0 LIMITATION OF LIABILITY
8.1 Except as provided in Section 8, in no event will either party be liable
to the other for any special, incidental, consequential damages, or lost
profits of the other party.
9.0 ARBITRATION
9.1 At the option of either party, any and all disputes regarding this
Agreement will be decided according to the rules and regulations of the
American Arbitration Association.
9.2 The arbitrators will be selected as follows: If MTI and Consultant agree
on one arbitrator, the arbitrator will be conducted by that arbitrator. If
MTI and Consultant do not agree, MTI and Consultant will each select one
independent, qualified arbitrator and the selected arbitrators will select
the third arbitrator. All three arbitrators will conduct the arbitration.
MTI reserves the right to reject any individual arbitrator employed by or
affiliated with a competing organization.
9.3 Arbitration will take place at Orange County, California, or any other
location mutually agreeable to the parties. At the request of either
party, arbitration proceedings will be conducted in the secrecy. All
documents, testimony and record will be received, heard and maintained by
the arbitrator(s) in secrecy under seal, available for the inspection only
of MTI or Consultant, and their respective attorneys and experts who agree
in advance and in writing to hold the information in secrecy until the
information becomes generally known.
9.4 The arbitrator(s), acting by majority vote, will be able to decree any and
all relief of an equitable nature, including, but no limited to, relief of
a temporary order, and/or a temporary or permanent injunction. The
arbitrator(s) will also be able to award damages, with or without an
accounting and cost. The decree or judgment of an award rendered by the
arbitrator(s) will be binding and may be entered in any court having
jurisdiction thereof.
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10.0 MISCELLANEOUS
10.1 This Agreement will be governed by substantive laws of the State of
California.
10.2 The parties are independent contractors to one another. Nothing in this
Agreement, creates any agency, partnership, or joint tenants between the
parties. Except as expressly provided in this Agreement, MTI will not be
liable for any debts, accounts, obligations, or other liabilities of
Consultants, including (without limitation) Consultant's obligations to
withhold Social Security and income taxes for itself or any of its
employees.
10.3 All remedies available to either party for one or more breaches by the
other party are cumulative and may be exercised separately or concurrently
without waiver of any other remedies. The failure of either party to act
on a breach of this Agreement by the other will not be deemed a waiver of
the breach or a waiver of future breaches, unless the waiver is in writing
and signed by the party against when enforcement is sought.
10.4 All notices will be in writing and will be delivered by hand or by
registered or certified mail, postage prepaid, as follows:
If to Consultant: If to MTI:
Earl Pearlman MTI Technology Corporation
4905 East La Palma Avenue
Anaheim, California 92807
Attn: Contracts Manager
10.5 This Agreement constitutes the entire Agreement between the parties and
supersedes all prior representations, proposals, discussions, and
communications, whether oral or in writing. This Agreement may be modified
only in writing.
10.6 This Agreement is a stand alone document and is not part of any previous
agreement.
EXECUTED BY:
MTI TECHNOLOGY CORPORATION
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EXHIBIT A
SCOPE OF WORK
Consultant will provide information and conduct research as requested by MTI to
assist in the understanding, development and delivery of the following:
DELIVERABLES
At MTI's sole discretion, MTI may request that Consultant provide advice as to
the development and implementation of both tactical and strategic plans for MTI
or its subsidiaries. This may include that the Consultant be present at certain
locations at certain times as specified by MTI, with reasonable advance notice
to be given to Consultant either by direct conversation or in writing.
At MTI's sole discretion, MTI may request that Consultant meet with MTI's
vendors of customers to assist MTI in the furthering or improving of its
relationships with the respective vendor or customer. If such a request is made
by MTI, MTI and Consultant will mutually agree prior to the meeting as to the
general content and scope of information that Consultant will provide or
discuss. MTI agrees to provide reasonable advance notice to Consultant as to
the location and time of such meetings, either by direct conversation or in
writing.
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EXHIBIT B
FEES
MTI agrees to pay Consultant $200.00 per hour per assignment, with the number
of billable hours per assignment to be mutually agreed upon by both MTI and
Consultant, in writing, prior to Consultant providing any services relating to
the respective assignment. MTI retains the unilateral and sole right to
determine if any services are to be requested of the Consultant, and
Consultant agrees not to undertake any actions or provide any services under
this Agreement unless directed to do so by the appropriate representatives of
MTI.
PAYMENT TERMS
Upon the completion of an assignment as set forth in "Exhibit A" and submission
of an invoice the agreed upon amount of the assignment's billable hours
multiplied at the rate of $200.00 per hour will be paid on a net 30 days.
TERMS OF AGREEMENT
Terms
This agreement is effective beginning December 1, 1999 and terminates July
31, 2001. MTI agrees that this Agreement will remain in effect for the
full term as set forth above, and may only be terminated prior to July 31,
2001 by Consultant. If Consultant does elect to terminate the Agreement
prior to July 31, 2001, Consultant agrees to give MTI 30 days written
notice, and to complete any unfinished assignments.
The number of hours to be worked and/or the number of assignments that
Consultant will be asked to engage will be solely determined by MTI. MTI
may, at its sole discretion, elect to not engage the Consultant for any
assignment during the term of this Agreement. Unless the Agreement is
terminated by the Consultant pursuant to the terms and conditions as set
forth above, Consultant agrees that he will make himself available to MTI
during the term of the Agreement.
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Exhibit C
CONFIDENTIALITY/NON-DISCLOSURE AGREEMENT
In consideration of MTI Technology Corporation, a Delaware corporation (herein
"MTI") granting me access to MTI facilities and information, I agree as follows:
1. As an employee of Consultant, it is my understanding that, pursuant to a
Consulting Agreement between Consultant and MTI Technology Corporation, I
will have access to and acquire techniques, know-how, or other information
of a confidential nature concerning MTI experimental and developmental
work, trade secrets, secret procedures, business matters or affairs
including, but not limited to, information relating to ideas, discoveries,
inventions, disclosures, processes, methods, systems, formulas, patents,
patent applications, machines, materials, research plans and activities,
research results, and business marketing information, plans, operations,
activities, and results. I WILL NOT DISCLOSE ANY SUCH INFORMATION TO ANY
PERSON OR ENTITY OR USE ANY SUCH INFORMATION WITHOUT MTI'S PRIOR WRITTEN
CONSENT. Information will, for purposes of this Agreement, be considered to
be confidential if not known in the field generally, even though such
information has been disclosed to one or more third parties pursuant to
joint research agreements, consulting agreements, or other agreements
entered into by MTI or any of its affiliates. Excluded from the obligations
of confidentiality and non-discloser agreed to herein is information (i)
that I can establish I knew prior to my acquiring it from MTI; (ii) that I
receive from a third party who, when providing it to me, is not under an
obligation to MTI to keep the information confidential; or (iii) that
enters the public domain through no fault of mine.
2. If, as a consequence of my access to MTI facilities or information, I
conceive of or make, alone or with others, ideas, inventions and
improvements thereof of know-how related thereto that relate in any manner
to the actual or anticipated business of MTI, I will assign and do hereby
assign to MTI my right, title, and interest in each of the ideas,
inventions and improvements thereof described in this paragraph. I will,
at MTI's expense, execute, acknowledge, and deliver such documents.
3. I agree that, upon the earlier of the completion of my work for MTI, as an
employee of Consultant or upon the termination of the Consulting Agreement
between MTI and Consultant, I will deliver to MTI (and will not keep in my
possession or deliver to anyone else) any and all devices, records, data,
notebooks, notes, reports, proposals, lists, correspondence,
specifications, drawings, blueprints, sketches, materials, equipment,
other documents or property, or reproductions of any aforementioned items
belonging to MTI, its successors or assigns.
4. I agree to execute any proper oath or verify any proper document required
to carry out the terms of this Agreement. I represent that my performance
of all the terms of this Agreement will not breach any agreement to keep
in confidence proprietary information acquired by me in confidence or in
trust prior to my commencing work for MTI. I have not entered into, and I
agree I will not enter into, any oral or written agreement in conflict
herewith.
5. This Agreement will be governed by the laws of the State of California.
6. This Agreement sets forth the entire agreement and understanding between
MTI and me relating to the subject manner herein and merges all prior
discussions between us. No modification of or amendment to this Agreement,
nor any waiver of any rights under this agreement, will be effective
unless in writing signed by the party to be charged. Any subsequent change
or changes in my duties, salary or compensation will not affect the
validity or scope of this Agreement.
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<PAGE> 16
7. If one or more of the provisions in this Agreement are deemed void by law,
then the remaining provisions will continue in full force and effect.
8. This Agreement will be binding upon my heirs, executors, administrators
and other legal representatives and will be for the benefit of MTI, its
successors, and its assigns.
9. This Agreement will remain in full force and effect so long as any
materials referred to in paragraph 1 remain trade secrets of MTI.
------------------- --------------------------------
Date Signature
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Witness Name
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