EX-10.62 4 a83998exv10w62.txt EXHIBIT 10.62 EXHIBIT 10.62 SEVERANCE AND RELEASE AGREEMENT This Severance and Release Agreement (the "Agreement") is made and entered into by and between Kenneth Simpson ("Simpson") and MTI Technology Corporation, a Delaware corporation ("MTI" or "the Company"), and shall become effective on the Effective Date (as defined in Section 5c, below). NOW, THEREFORE, in consideration of the recitals listed above, and the mutual promises contained in this Agreement, Simpson and the Company agree, covenant, and represent as follows: 1. Termination Of Employment a. Simpson hereby agrees to voluntarily resign his employment with MTI as the Vice President, Information Technology and Chief Information Officer and any and all other positions that he may hold with the Company, with an effective date of July 5, 2002 (the "Termination Date"). b. As of the Termination Date, MTI shall pay to Simpson (i) all accrued but unpaid salary as the Termination Date in the total gross amount of $5,480.77 and (ii) all unused vacation pay accrued up to and including July 5, 2002 in the total amount of $2,771.90 (collectively, the "Termination Payment"). The total gross amount of the Termination Payment is $8,252.67. MTI shall withhold from the Termination Payment all applicable payroll taxes, including federal and state income taxes, as well as other authorized deductions. 2. Severance Benefits a. After the Effective Date of this Agreement, Simpson shall receive a severance payment from the Company in the total gross amount of $60,000.00 (the "Severance Payment"), to be paid in a lump sum within ten days of the Effective Date of this Agreement. MTI shall withhold from the payment all applicable payroll taxes, including federal and state income taxes, as well as other authorized deductions. b. Simpson acknowledges that, as of August 1, 2002, he may be eligible to obtain continuing coverage under MTI's group medical plan pursuant to the provisions of the Consolidated Omnibus Reconciliation Act and its implementing regulations ("COBRA"). From August 1, 2002 through September 30, 2002, or until such time as Simpson obtains other employment, whichever occurs sooner, MTI will pay the premium payments for any COBRA continuation coverage that Simpson elects to obtain for himself and his family. In addition, from August 1, 2002 through September 30, 2002, or until such time as Simpson obtains other employment, whichever occurs sooner, MTI will reimburse Simpson for medical expenses (and life insurance) incurred by Simpson that are not covered by his COBRA continuation coverage but that would be covered under MTI's Executive Medical Plan. As of September 30, 2002, or such lesser time if Simpson obtains other employment sooner, and at all times thereafter, Simpson shall be solely responsible for paying any and all premiums necessary to continue such health insurance benefits. Simpson hereby acknowledges that he has received from the Company all required information and forms regarding his right to continue his health insurance benefits under COBRA. c. Simpson will be allowed to keep a Company Compaq 1750 laptop. d. Simpson shall not be eligible for, or entitled to receive, any severance benefits, stock, stock options, or any other benefits other than those specifically identified in this Agreement including, but not limited to, any benefits under the Offer Letter, which shall be of no further force or effect. e. Simpson will cooperate with MTI in the orderly transfer of his responsibilities to other MTI employees. Simpson will also 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 will indemnify and hold Simpson harmless to the extent required by law for all that Simpson necessarily expends or loses in direct consequence of the discharge of his duties under this Section 2(d). 3. 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, Simpson, for himself and his heirs, assigns, executors, administrators, and agents, past and present (collectively, the "Simpson 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 with MTI, 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, workers' compensation claims, attorneys' fees, costs, and expenses, of whatever nature whatsoever, known or unknown, fixed or contingent, suspected or unsuspected ("Claims"), that Simpson or the Simpson 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) Simpson's employment by MTI or any of the other MTI Releasees; (ii) the termination of Simpson's employment by MTI or any of the other MTI Releasees; (iii) any contracts or agreements between MTI and Simpson including, but not limited to, the offer letter signed by Simpson on or about March 9, 2001; 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, Simpson 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 2 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; the Worker Adjustment and Retraining Notification Act; 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. c. Simpson represents that he did not suffer any work-related injuries while employed by the Company, that he has no intention of filing any claims for workers' compensation benefits of any type against the Company, and that he will not file or attempt to file any claims for workers' compensation benefits of any type against the MTI Releasees. Simpson acknowledges that the Company has relied upon these representations, and that the Company would not have entered into this Agreement but for these covenants and representations. As a result, Simpson agrees, covenants, and represents that the Company or any of the other Releasees may, but are not obligated to, submit this Agreement to the Workers' Compensation Appeals Board for approval as a compromise and release as to any such new or unasserted workers' compensation claims or any of the other Releasees. 4. Release of Unknown Claims Simpson 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." Simpson hereby waives and relinquishes all rights and benefits that 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. Older Worker's 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, Simpson acknowledges and agrees that he has executed this Agreement voluntarily, and with full knowledge of its consequences. b. In addition, Simpson hereby acknowledges and agrees that: (a) this Agreement has been written in a manner that is calculated to be understood, and is understood, by Simpson; (b) the release provisions of this Agreement apply to rights and 3 claims that Simpson 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 Simpson may have under the ADEA that arise after the date Simpson executes this Agreement; (d) the Company does not have a preexisting duty to pay the severance benefits identified in this Agreement; (e) Simpson has been advised in writing to consult with an attorney prior to executing this Agreement. c. Simpson agrees, covenants, and represents that the termination of his employment shall not for any purpose be deemed to have resulted from an "exit incentive program" or "any other termination program offered to a group or class of employees," as those phrases are defined in the OWBPA and its implementing regulations. Accordingly, Simpson acknowledges and agrees that: (i) he shall have a period of 21 days in which to consider whether to execute this Agreement; (ii) if he executes this Agreement prior to expiration of the 21-day period, he has voluntarily decided to execute the Agreement; and (iii) he shall have a period of seven days after execution of this Agreement to revoke this Agreement. Simpson further understands that this Agreement shall not become effective until expiration of this seven-day period (the "Effective Date"). 6. Confirmation of Payment of Wages a. Simpson acknowledges that he has been paid all wages and other compensation due and owing to him from the Company as of the Effective Date of this Agreement, including all commissions, bonuses, and accrued vacation. Accordingly, Simpson understands that the release provisions of this Agreement release and discharge the Company from any and all claims that he may have against the Company for unpaid wages and other compensation including, but not limited to, any claims for salary; bonuses; commissions; stock; stock options; other securities, or any other ownership interests or rights to acquire, directly or indirectly, ownership interests in the Company; vacation pay; fringe benefits; expense reimbursements; severance pay; or any other form of compensation not listed as part of this Agreement. b. This Agreement shall not modify or in any way change the existing terms and conditions governing stock options previously granted by the Company to Simpson. Simpson understands and agrees that his right to exercise these options shall be in accordance with the terms and conditions of the stock option plan applicable to any options granted to him by the Company. 7. Confidentiality and Non-Disparagement a. Simpson agrees, covenants and represents that the facts relating to the existence of this Agreement, the negotiations leading to the execution of this Agreement, and the terms of this Agreement shall be held in confidence, and shall not be disclosed, communicated, offered into evidence in any legal proceeding, or divulged to any person other than those who must perform tasks to effectuate this Agreement. Notwithstanding the foregoing, the parties may disclose the terms of this Agreement to 4 those persons to whom disclosure is necessary for the preparation of tax returns and other financial reports; the obtaining of legal advice; and to persons to whom disclosure is ordered by a court of competent jurisdiction or as otherwise required by law, including the Securities Exchange Act of 1934, as amended (including the regulations promulgated thereunder), and the regulations of Nasdaq; by obligation to owners, shareholders, partners, or members of the Company; or by MTI in connection with any financing, merger, sale, or similar transaction. Without limiting the foregoing, Simpson understands and acknowledges that MTI may be required to disclose this Agreement, or the terms of this Agreement, in connection with its filings with the Securities and Exchange Commission or Nasdaq, as well as in connection with any potential financing, merger, sale, or similar transaction. b. Simpson 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. 8. Trade Secrets Simpson 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 "A." Without limiting in any way the terms of the Proprietary Information Agreement, Simpson agrees that he will not disclose over the Internet any confidential, proprietary, or trade secret information of the Company. 9. Non-Admission of Liability This Agreement shall not be treated as an admission of liability by MTI, at any time or for any purpose, and 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 Section 3(c) of this Agreement. 10. Arbitration of Disputes a. MTI and Simpson agree that, to the fullest extent permitted by law, any and all claims or controversies between them (or between Simpson and any present or former officer, director, agent, or employee of the Company or any parent, subsidiary, or other entity affiliated with the Company), including, but not limited to, any and all claims or controversies relating in any manner to Simpson's employment or the termination of Simpson's employment, shall be resolved by final and binding arbitration in accordance with the then-existing National Rules for the Resolution of Employment Disputes of the American Arbitration Association (the "AAA Rules"). Claims subject to arbitration shall include, but are not limited to: contract claims, tort claims, claims relating to compensation and stock options, as well as claims based on any federal, state, 5 or local law, statute, or regulation, including but not limited to any claims arising under Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, the Americans with Disabilities Act, and the California Fair Employment and Housing Act. However, claims for unemployment compensation, workers' compensation, and claims under the National Labor Relations Act shall not be subject to arbitration. b. The arbitrator shall prepare a written decision containing the essential findings and conclusions on which the award is based so as to ensure meaningful judicial review of the decision. The arbitrator shall apply the same substantive law, with the same statutes of limitations and same remedies, that would apply if the claims were brought in a court of law. The arbitrator shall have the authority to rule on a motion to dismiss and/or summary judgment by either Simpson or the Company and shall apply the standards governing such motions under the California Code of Civil Procedure. c. The parties may bring an action in court to compel arbitration under this Agreement and to enforce an arbitration award. Otherwise, neither party shall initiate or prosecute any lawsuit or administrative action in any way related to any arbitrable claim, including without limitation any claim as to the making, existence, validity, or enforceability of the agreement to arbitrate. Nothing in this Agreement precludes a party from filing an administrative charge before an agency that has jurisdiction over an arbitrable claim. All arbitration hearings under this Agreement shall be conducted in Orange County, California. Notwithstanding the foregoing, either party may, at its option, seek injunctive relief in a court of competent jurisdiction for any claim or controversy arising out of or related to the unauthorized use, disclosure, or misappropriation of the confidential and/or proprietary information of either party. d. THE PARTIES UNDERSTAND AND AGREE THAT THIS SECTION CONSTITUTES A WAIVER OF THEIR RIGHT TO A TRIAL BY JURY OF ANY CLAIMS OR CONTROVERSIES COVERED BY THIS AGREEMENT, AND THAT NONE OF THOSE CLAIMS OR CONTROVERSIES SHALL BE RESOLVED BY A JURY TRIAL. e. The arbitration provisions of this Section shall be governed by the Federal Arbitration Act ("FAA"), unless a court of competent jurisdiction determines the FAA to be inapplicable, in which case the parties agree that the California Arbitration Act (Code Civil Procedure Section 1280 et seq.) shall apply. In all other respects, this Section 10 is to be construed in accordance with the laws of the State of California, without reference to conflicts of law principles. 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 Simpson and MTI. 6 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 This Agreement and the Proprietary Information Agreement attached as Exhibit "A" together constitute a single, integrated written contract expressing the entire agreement of the parties. There are no other agreements, written or oral, express or implied, between the parties with respect to the subject matter hereof. These agreements may not be orally modified. These agreements may only be modified in a written instrument signed by both 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 shall be considered severable, except for the Release provisions of Sections 3 and 4 of this Agreement. If a court of competent jurisdiction finds the release provisions of Sections 3 or 4 of this Agreement to be unenforceable or invalid, then this Agreement shall become null and void, and any severance benefits provided by MTI to Simpson pursuant to Section 2 of the Agreement shall be returned to MTI within 15 days. If a court of competent jurisdiction finds any provision other than the release provisions of Sections 3 or 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. 7 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. Representations And Warranties a. Simpson represents and warrants that he has the authority to enter into this Agreement and to bind all persons and entities claiming through him. b. Simpson represents that he has read this Agreement and fully understands all of its terms; that MTI has advised him to consult with an attorney, and that he has conferred with his attorneys or has knowingly and voluntarily chosen not to confer with his 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. c. Simpson acknowledges that no representations, statements or promises made by MTI, or by its agents or attorneys, has been relied on in entering into this Agreement. THE UNDERSIGNED HAVE READ THE FOREGOING AGREEMENT AND ACCEPT AND AGREE TO THE PROVISIONS CONTAINED THEREIN, AND HEREBY EXECUTE IT, KNOWINGLY AND VOLUNTARILY, AND WITH FULL UNDERSTANDING OF ITS CONSEQUENCES. IF SIMPSON SIGNS THIS AGREEMENT BEFORE THE EXPIRATION OF THE 21-DAY REVIEW PERIOD PROVIDED BY SECTION 5(c), SIMPSON AGREES THAT HE HAS VOLUNTARILY WAIVED THE REVIEW PERIOD. IN WITNESS WHEREOF, the parties hereto have executed this Agreement, which consists of 8 pages, on the dates indicated below. KENNETH SIMPSON MTI TECHNOLOGY CORPORATION Signature: /s/ KENNETH SIMPSON Signature: /s/ TOM RAIMONDI ------------------------- ------------------------- Tom Raimondi President Date: 7/11/2002 Date: 7/12/02 ------------------------------ ------------------------------ 8