exv10w1



 






Exhibit 10.1




SEVERANCE AND RELEASE AGREEMENT




     This Severance and Release Agreement (the “Agreement”) by and between MTI Technology
Corporation (“MTI” or “the Company”) and Jon Caputo (“Caputo”) documents the terms and conditions
of Caputo’s termination from the Company, and is effective November 7, 2005, (the “Effective
Date”).



Recitals




     On or about April 25, 2005, Caputo commenced employment with MTI. Caputo is currently the
Company’s Executive Vice President of Worldwide Operations.



     MTI terminated Caputo’s employment effective on November 7, 2005 (the “Termination Date”).
MTI does not have a uniform policy or practice of granting particular severance benefits to its
employees or executives. However, in accordance with the terms set forth under the offer letter
between MTI and Caputo, MTI agrees to pay Caputo those severance benefits described in the
paragraphs that follow in exchange for Caputo’s release of all claims against the Company and
performance of his other obligations hereunder. Caputo accepted this offer.



     NOW, THEREFORE, in consideration of the recitals listed above, and the mutual promises
contained in this Agreement, Caputo and the Company agree, covenant, and represent as follows:



Agreement




     1.      Termination of Employment and Severance Payment



     In consideration of the covenants and promises in this Agreement, and for the good and
valuable consideration, the sufficiency of which are hereby acknowledged, the Parties agree as
follows:



          a.      Within a reasonable period after the Effective Date of the Agreement, and subject to the
condition that seven days have passed and Caputo has not revoked this Agreement pursuant to
Paragraph 3(b), MTI shall pay Caputo the total gross amount of $120,000.00 minus all applicable
taxes, social security, and other government required deductions (the “Severance Payment”). The
Severance Payment shall be paid in 5 equal payments in the gross amount of $24,000.00, beginning on
MTI’s first scheduled payroll date following January 1, 2006 and concluding with the payment on
March 3, 2006. Notwithstanding any provision herein to the contrary, in no event will the
Severance Payment be paid to Caputo later than two and one-half (21/2) months following January 1,
2006.




          b.      MTI will continue the Executive Medical Reimbursement Plan provided to Caputo through
November 30, 2005. Thereafter, Caputo acknowledges that,



 








 








as of Employment Termination Date, 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 agrees that for a six month
period beginning on December 1, 2005, MTI will pay the monthly premium for any COBRA continuation
coverage that Caputo elects to obtain. In no event shall MTI be liable for, or be required to pay
premiums for any COBRA continuation coverage Caputo may elect or be eligible to obtain thereafter.
Beginning June 1, 2006, Caputo shall be solely responsible for paying any and all premiums
necessary to continue such COBRA benefits.




          c.     The Parties agree that the options granted to Caputo pursuant to the MTI Technology
Corporation 2001 Stock Incentive Plan, as amended (the “Stock Incentive Plan”), shall have vested
as of November 25, 2005, as to 45,833 shares of Common Stock and will be exercisable until February
25, 2006. The options shall not continue to vest and shall terminate on February 25, 2006.




          d.      Caputo agrees that from the Termination Date to and including November 25, 2005, he will be
available to consult with MTI as needed by MTI (the “Consulting Period) in accordance with the
Consulting Agreement attached to this Agreement as Exhibit “A.” Caputo further agrees, covenants
and represents that during the Consulting Period and thereafter 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 Caputo harmless to the extent required by law for all that Caputo
necessarily expends or loses in direct consequence of the discharge of his duties under this
paragraph.




          e.      Caputo and MTI agree, covenant and represent that Caputo shall not be eligible for, or
entitled to, any benefits of employment other than those specifically identified in this Agreement.




     2.      General Release And Covenant Not To Sue



          a.      Caputo, for himself and his heirs, assigns, executors, administrators, and agents, past and
present (collectively, the “Caputo 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
Releasees”), 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,
attorneys’ fees, costs, and expenses, of whatever nature whatsoever, known or unknown, fixed or
contingent, suspected or unsuspected (“Claims”), that Caputo or the Caputo Affiliates now have, or
may ever have, against any of the MTI Releasees that arise out of, or are in any way related to:
(i) Caputo’s employment by MTI or any of the other MTI Releasees;




2








 







(ii) the termination of Caputo’s employment by MTI or any of the other MTI Releasees; and
(iii) any transactions, occurrences, acts or omissions by MTI or any of the other MTI Releasees
occurring prior to the Effective Date of this Agreement.




          b.      Without limiting the generality of the foregoing, Caputo 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 Age Discrimination In Employment 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; misrepresentation; 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.




     3.      Older Workers Benefit Protection Act



          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 (“ADEA”) unless the waiver is knowing and voluntary. Pursuant to
the terms of the OWBPA, Caputo acknowledges and agrees that he has executed this Agreement
voluntarily, and with full knowledge of its consequences.




          b.      In addition, Caputo 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 rights and claims that Caputo may have under the 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 that Caputo may have under the
ADEA that arise after the date he executes this Agreement; (d) Caputo has been advised in writing
to consult with an attorney prior to executing this Agreement; (e) Caputo shall have a period of 21
days in which to consider the terms of this Agreement prior to its execution; and (f) Caputo shall
have a period of seven days after execution of this Agreement in which to revoke this Agreement.




     4.     Release Of Unknown Claims



          Caputo 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 or her, must have materially affected his or her settlement with the
debtor.”



3









 




Caputo hereby waives and relinquishes 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.




     5.      Representations And Warranties



          a.      Caputo represents and warrants that he has the capacity and the authority to enter into
this Agreement on his own behalf, to bind all persons and entities claiming through him, and to
release all Claims on behalf of the Caputo Affiliates.




          b.      Caputo represents and warrants that he has not assigned or transferred any Claims or any
interest in any Claims that he or the Caputo Affiliates have or may have against any of the MTI
Releasees. Caputo agrees to defend, indemnify and hold the MTI Releasees harmless from any
liability, claims, demands, damages, expenses, and attorneys’ fees incurred as a result of any
person or entity who successfully asserts such assignment or transfer.




          c.      Caputo represents and warrants that no person, firm, or other entity has asserted,
currently asserts, or to his knowledge will assert a lien or claim of lien with respect to the
Severance Payment provided for in this Agreement. Caputo represents and warrants that he has the
authority to enter into this Agreement and to bind all persons and entities claiming through him.




          d.      Caputo represents that he has not suffered any work-related injuries while employed by the
Company and accordingly, he has not filed and does not intend to file any claim for workers’
compensation benefits of any type against the Company. Caputo acknowledges that the Company has
relied upon these representations, and that the Company would not have entered into this Agreement
but for these representations. As a result, Caputo agrees, covenants, and represents that the
Company may, but is not obligated to, submit this Agreement to the Workers’ Compensation Appeals
Board for approval as a full compromise and release as to any workers’ compensation claims in the
event that Caputo files such a claim.




     6.      Confidentiality and Non-Disparagement



          a.      As of the Effective Date, Caputo 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 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 this Agreement, without first obtaining the MTI’s written consent to
each disclosure. Notwithstanding the foregoing, Caputo may disclose the terms of this Agreement to
those persons to whom disclosure is necessary for the preparation of tax returns and other
financial reports, the obtaining of legal advice, and to whom disclosure is ordered by a court of
competent jurisdiction or otherwise required by law.




4









 








          b.      Caputo 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.




     7.      Trade Secrets



          Caputo acknowledges that he executed a Proprietary Information Agreement 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.”




     8.      Non-Admission of Liability



          Caputo 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 the Agreement as a compromise and
release as provided in Paragraph 2(c) of this Agreement




     9.      Non-Solicitation



          Caputo acknowledges that, because of his responsibilities at the Company, he helped to
develop, learned of, and was exposed to the Company’s business strategies, information on customers
and clients, and other valuable proprietary information, and that use or disclosure of such
proprietary information in breach of the Employee’s obligations to the Company would be extremely
difficult to detect or prove. Employee also acknowledges that the Company’s relationships with its
employees are valuable business assets. In light of these facts, Caputo agrees that he shall not,
for a period of one year following the Termination Date directly or indirectly, solicit or induce
any executive, administrative, or other employee of the Company, or any of its affiliates,
divisions, or subsidiaries, to leave the Company’s employment.




     10.      Arbitration of Disputes



          All disputes between Caputo (and his attorneys, successors, and assigns) and MTI (and its
affiliates, shareholders, directors, officers, employees, agents, successors, attorneys, and
assigns) relating in any manner whatsoever to Caputo’s employment with, or the termination of his
employment from, MTI (“Arbitrable Claims”) including, without limitation, all disputes relating to
the validity, interpretation, or enforcement of this Agreement, shall be resolved exclusively by
arbitration in Orange County, California, by the Judicial Arbitration & Mediation Services, Inc.
(the “JAMS”). Such arbitration shall be conducted in accordance with the then-existing arbitration
rules of JAMS, with the cost of such arbitration to be borne equally by the parties. The parties
to this Agreement, and all who claim thereunder, shall be (i) conclusively bound by the
arbitrator’s decision or award, which shall not be subject to appeal; and (ii) have the right to
have any decision or award rendered in accordance with this provision entered as a


5









 







judgment in a court in the State of California or any other court having jurisdiction. The
arbitrator shall have the authority to award or grant legal, equitable, and declaratory relief.
The parties hereby waive any rights they may have to trial by jury. The Federal Arbitration Act
will govern the interpretation and enforcement of this Section pertaining to arbitration, unless it
is found inapplicable in which case California law shall control.




     11.      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 Caputo and MTI.




     12.      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.




     13.      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.




     14.      Integration And Modifications



          a.      This Agreement, and the Proprietary Information Agreement attached as Exhibits “A” and “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.




          b. This Agreement may not be modified orally. This Agreement may only be modified in a
written instrument signed by all parties.




     15.      Severability



          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 or for any purpose. Therefore, the parties further agree, covenant and
represent that each and every provision of this Agreement


6









 







shall be considered severable, except for the Release provisions of Sections 2 and 3 of this
Agreement. If a court of competent jurisdiction finds the release provisions of Sections 2 through
4 of this Agreement to be unenforceable or invalid, then this Agreement shall become null and void,
and the Severance Payment paid pursuant to paragraph 1 shall be returned to MTI within a reasonable
period of time, not to exceed 15 days from the day or the finding that Caputo violated the terms of
the Release. If a court of competent jurisdiction finds any provision other than the release
provisions of Sections 2 through 4, or part thereof, to be invalid or unenforceable 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.




     16.      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.




     17.      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.




     18.      Miscellaneous Provisions



          a.      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 he has executed this Agreement without
coercion or duress of any kind; and that he understands any rights that he has or may have and
signs this Agreement with full knowledge of any such rights.




          b.      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.




     19.      Effective Date



     The
Effective Date of this Agreement shall be seven days after Caputo executes the Agreement
and delivers it to MTI.



7









 




IN WITNESS WHEREOF, the parties hereto have executed this Agreement, which consists of 8 pages, on
the dates indicated below.




	 	 	 
	JON CAPUTO	 	MTI TECHNOLOGY CORPORATION
	 
	 	 
	 
	 	 
	Signature: /s/ Jon Caputo

	 	Signature: /s/ Scott Poteracki
	 
	 	 
	 
	 	 
	Date: November 18, 2005

	 	Date: November 21, 2005






8









 






EXHIBIT “A”




CONSULTING AGREEMENT


THIS AGREEMENT is made between MTI Technology Corporation (“MTI”), a Delaware corporation,
at 17595 Cartwright Rd., Irvine, California and Jon Caputo an independent consultant,
(“Consultant”).



WHEREAS, Consultant has general experience in the area of service operations management, and
direct experience in the tactical and strategic service operations of MTI.



WHEREAS, MTI in reliance on Consultant’s representations, 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
its sole discretion, in the area of general service operation management, as described
in Exhibit A.
	 
	 	1.2	 	All work will be performed at MTI’s facilities and/or at specified customer
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 propriety information of MTI. Consultant will also
furnish to MTI all work in progress, including all incomplete work.




9









 






	 	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.





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 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 suggest in the performance of the services under this
Agreement, including all related developments originated or conceived during the term
of the Agreement but completed or reduced to practice after termination.
	 
	 	4.4	 	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. Consultants
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 obligation contained in this Section will survive the termination of this
Agreement and continue for as long as the material remains Trade Secrets.
	 
	 	5.5	 	The obligations contained in this Section shall not in any way diminish or
limit Consultant’s obligations and duties under his Proprietary Agreement with
MTI .




10









 











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 many 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.





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 will not
violate any applicable law, rule, or regulation; any contracts with third
parties; or any third-part rights in any patent, trademark, copyright, trade
secret; or similar rights.
	 
	 	b.	 	Any and all rights, title, and ownership interest, 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.





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 regulation of the American Arbitration
Association.
	 
	 	9.2	 	The arbitrators will be selected as follows: If MTI and Consultant agree on
one arbitrator, that arbitrator will conduct the arbitration. If MTI and Consultant
do not agree, MTI and Consultant will each select one 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 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 greatly 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 now limited to, relief of temporary
retraining




11









 






	 	 	 	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.





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 venture between the parties.
Except as expressly provided in this Agreement, MTI will not be liable for any debts,
accounts, obligations, or other liabilities of Consultant, 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 whom 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:
	 
	 	 
	Jon Caputo

	 	MTI Technology Corporation
	922 Hopkins Way

	 	17595 Cartwright Rd
	Pleasanton, CA 94566

	 	Irvine, CA 92614







	 	10.5	 	This Agreement constitutes the entire Agreement between the parties relating
to Consultant’s providing of services to MTI as an independent contractor. This
Agreement may be modified only in writing.





	 	 	 
	CONSULTANT

	 	MTI TECHNOLOGY CORPORATION
	 
	 	 
	Signature: /s/ Jon Caputo

	 	Signature: /s/ Scott Poteracki
	 
	 	 
	Name: Jon Caputo

	 	Name: Scott Poteracki
	 
	 	 
	Title: Consultant

	 	Title: CFO
	 
	 	 
	Date: November 18, 2005

	 	Date: November 21, 2005






12









 






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 service operations for MTI or its subsidiaries.





 









 








Exhibit B




FEES



MTI agrees to pay consultant $125 per hour plus expenses 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 service relating 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 completion of an assignment, or monthly if the assignment exceeds 30 days, 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 $125 per hour will be paid on a net 30 days.




TERMS OF AGREEMENT



This agreement is effective beginning November 7, 2005 and terminates November 25, 2005.
MTI agrees that this Agreement will remain in effect for the full term set forth above.



The number of assignments that Consultant will be asked to engage will be solely determined by
MTI. MTI may, at its sole discretion, elect not to 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.





 









 








Exhibit C




CONFIDENTIALITY/NON-DISCLOSURE AGREEMENT



In consideration of MTI Technology Corporation, a Delaware corporation (herein “MTI”) granting
me to access 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 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 know in the field
generally, even though such information has been disclosed to one or more third
parties pursuant to join 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 the
proprietary information acquired by me in confidence or in trust prior to my
commencing work for MTI. I have 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.	 	If one or more of the provisions in this Agreement is deemed void by law,
then the remaining provisions will continue in full force and effect
	 
	 	7.	 	This Agreement will be binding upon my heirs, executors, administration and
other legal representatives and will be for the benefit of MTI, its successors, and
its assigns.
	 
	 	8.	 	This Agreement will remain in full force and effect so long as any materials
referred to in paragraph 1 remain trade secrets of MTI.
	 
	 	9.	 	This Agreement does not modify or limit my obligation or duties of Consultant
under the Propriety Information Agreement signed by consultant.





	 	 	 
	Date: November 18, 2005

	 	Signature: /s/ Jon Caputo
	 
	 	 
	 
	 	 
	Witness: /s/ Suzanne Caputo

	 	Name: Jon Caputo






 









 






Exhibit D




CONSULTANT PRODUCTS

(IF ANY)