INDEMNIFICATION
AGREEMENT
THIS
INDEMNIFICATION AGREEMENT is made and entered into as of this
15 th
day of December, 2006 (this “
Agreement’’ ), by and between Peerless Systems
Corporation, a Delaware corporation (the “ Corporation
”), and Richard L. Roll (‘‘ Indemnitee
”).
WHEREAS, highly
competent persons are becoming more reluctant to serve corporations
as directors or officers or in other capacities unless they are
provided with indemnification against inordinate risks of claims
and actions against them arising out of their service to, and
activities on behalf of, such corporations;
WHEREAS, the Board
of Directors of the Corporation (the “ Board ”)
has determined that it is in the best interests of the Corporation
and its stockholders to attract qualified people to act as officers
and directors of the Corporation and in connection therewith, it is
reasonable, prudent and necessary for the Corporation to
contractually obligate itself to indemnify such persons to the
fullest extent permitted by applicable law so that they will serve
or continue to serve the Corporation free from undue concern that
they will not be so indemnified; and
WHEREAS,
Indemnitee is willing to serve, continue to serve and/or to
undertake additional service for or on behalf of the Corporation on
the condition that Indemnitee be so indemnified;
NOW, THEREFORE, in
consideration of the promises and the covenants contained herein,
the Corporation and Indemnitee do hereby covenant and agree as
follows:
1.
Services by Indemnitee . Indemnitee agrees to serve or
continue to serve as a director and/or officer of the Corporation
for so long as Indemnitee is duly elected or appointed and
qualified or until such time as Indemnitee (subject to any
contractual obligation or any obligation imposed by operation of
law) tenders his resignation in writing or is removed as a director
and/or officer. This Agreement shall not impose any obligation on
the Indemnitee or the Corporation to continue the
Indemnitee’s position with the Corporation beyond any period
otherwise applicable.
2.
General . The Corporation shall indemnify and hold harmless,
and shall advance Expenses (as hereinafter defined) to, Indemnitee
as provided in this Agreement and to the fullest extent permitted
by law in effect on the date hereof and to such greater extent as
applicable law may thereafter from time to time permit.
3.
Proceedings Other Than Proceedings by or in the Right of the
Corporation . Indemnitee shall be entitled to the rights of
indemnification provided in this Section 3 if, wholly or
partly by reason of his Corporate Status (as hereinafter defined),
Indemnitee is, or is threatened to be made, a party to or otherwise
becomes involved (as a witness or otherwise) in any threatened,
pending or completed Proceeding (as hereinafter defined), other
than a Proceeding by or in the right of the Corporation. Pursuant
to this Section 3, Indemnitee shall be indemnified and held
harmless against all Expenses, liabilities and losses (including
without limitation, judgments, fines, ERISA excise taxes and
penalties, amounts paid and to be paid in settlement, interest,
assessments or other charges imposed thereon, and any federal,
state, local and foreign taxes imposed on Indemnitee as a result of
the actual or deemed receipt of any payments under this
Section 3) actually and reasonably incurred by Indemnitee or
on Indemnitee’s behalf in connection with such Proceeding or
any claim, issue or matter therein, if Indemnitee acted in good
faith and in a manner Indemnitee reasonably believed to be in or
not opposed to the best interests of the Corporation and its
stockholders, and, with respect to any criminal Proceeding, had no
reasonable cause to believe the Indemnitee’s conduct was
unlawful.
4.
Proceedings by or in the Right of the Corporation .
Indemnitee shall be entitled to the rights of indemnification
provided in this Section 4 if, by reason of Indemnitee’s
Corporate Status, Indemnitee is, or is threatened to be made, a
party to any threatened, pending or completed Proceeding brought by
or in the right of the Corporation to procure a judgment in its
favor. Pursuant to this Section 4, Indemnitee shall be
indemnified and held harmless against Expenses, liabilities and
losses (as well as against any federal, state, local and foreign
taxes imposed on Indemnitee as a result of the actual or deemed
receipt of any payments under this Section 4) actually and
reasonably incurred by Indemnitee or on Indemnitee’s behalf
in connection with such Proceeding if Indemnitee acted in good
faith and in a manner Indemnitee believed to be in or not opposed
to the best interests of the Corporation and its stockholders.
Notwithstanding the foregoing, no indemnification against such
Expenses, liabilities and losses shall be made in respect of any
claim, issue or matter as to which Indemnitee shall have
been
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adjudged to be
liable to the Corporation if such indemnification is not permitted
by Delaware or other applicable law; provided, however, that
indemnification against Expenses, liabilities and losses shall
nevertheless be made by the Corporation in such event to the extent
that the Court of Chancery of the State of Delaware or the court in
which such proceeding shall have been brought or is pending, shall
determine.
5.
Indemnification for Expenses, Liabilities and Losses of a Party
who is Wholly or Partly Successful . Notwithstanding any other
provision of this Agreement, to the extent that Indemnitee is, by
reason of Indemnitee’s Corporate Status, a party to and is
successful, on the merits or otherwise, in any Proceeding,
Indemnitee shall be indemnified and held harmless against all
Expenses, liabilities and losses (as well as against any federal,
state, local and foreign taxes imposed on Indemnitee as a result of
the actual or deemed receipt of any payments under this
Section 5) actually and reasonably incurred by Indemnitee or
on Indemnitee’s behalf in connection therewith. If Indemnitee
is not wholly successful in such Proceeding but is successful, on
the merits or otherwise, as to one or more but less than all
claims, issues or matters in such Proceeding, the Corporation shall
indemnify and hold harmless Indemnitee against all Expenses,
liabilities and losses (as well as against any federal, state,
local and foreign taxes imposed on Indemnitee as a result of the
actual or deemed receipt of any payments under this Section 5)
actually and reasonably incurred by Indemnitee or on
Indemnitee’s behalf in connection with each successfully
resolved claim, issue or matter. For purposes of this
Section 5 and without limitation, the termination of any
claim, issue or matter in such a Proceeding by dismissal or
withdrawal with or without prejudice, shall be deemed to be a
successful result as to such claim, issue or matter.
6.
Advance of Expenses . The Corporation shall advance all
reasonable Expenses incurred by or on behalf of Indemnitee in
connection with any Proceeding within twenty (20) days after
the receipt by the Corporation of a statement or statements from
Indemnitee requesting such advance or advances from time to time,
whether prior to or after final disposition of such Proceeding.
Such statement or statements shall reasonably evidence the Expenses
incurred by Indemnitee and shall include or be preceded or
accompanied by an undertaking by or on behalf of Indemnitee to
repay any Expenses advanced if it shall ultimately be determined
that Indemnitee is not entitled to be indemnified against such
Expenses.
7.
Procedure for Determination of Entitlement to
Indemnification .
(a) To
obtain indemnification under this Agreement, Indemnitee shall
submit to the Corporation a written request, including therein or
therewith such documentation and information as is reasonably
available to Indemnitee and is reasonably necessary to determine
whether and to what extent Indemnitee is entitled to
indemnification. The Secretary of the Corporation shall, promptly
upon receipt of such a request for indemnification, advise the
Board in writing that Indemnitee has requested
indemnification.
(b) Upon
written request by Indemnitee for indemnification pursuant to
Section 7(a) hereof, a determination, if required by applicable
law, with respect to Indemnitee’s entitlement thereto shall
be made in the specific case: (i) if a Change in Control (as
hereinafter defined) shall have occurred, by Independent Counsel
(as hereinafter defined) in a written opinion to the Board, a copy
of which shall be delivered to Indemnitee (unless Indemnitee shall
request that such determination be made by the Board or the
stockholders, in which case the determination shall be made in the
manner provided below in clause (ii) or (iii) of this
Section 7(b)); (ii) if a Change of Control shall not have
occurred, (A) by the Board by a majority vote of the
Disinterested Directors (as hereinafter defined), even though less
than a quorum, (B) if no Disinterested Directors exist, or
even if Disinterested Directors exist, if a majority of such
Disinterested Directors so direct, by Independent Counsel in a
written opinion to the Board, a copy of which shall be delivered to
Indemnitee, or (C) by the stockholders of the Corporation; or
(iii) as provided in Section 8(b) of this Agreement; and, if
it is so determined that Indemnitee is entitled to indemnification,
payment to Indemnitee shall be made within ten (10) days after
such determination. Indemnitee shall cooperate with the person,
persons or entity making such determination with respect to
Indemnitee’s entitlement to indemnification, including
providing to such person, persons or entity upon reasonable advance
request any documentation or information that is not privileged or
otherwise protected from disclosure and which is reasonably
available to Indemnitee and reasonably necessary to such
determination. Any costs or expenses (including attorneys’
fees and disbursements) incurred by Indemnitee in so cooperating
shall be borne by the Corporation (irrespective of the
determination as to Indemnitee’s entitlement to
indemnification), and the Corporation hereby indemnifies and agrees
to hold harmless Indemnitee therefrom.
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(c) If
the determination of entitlement to indemnification is to be made
by Independent Counsel pursuant to Section 7(b) of this Agreement,
the Independent Counsel shall be selected as provided in this
Section 7(c). If a Change of Control shall not have occurred,
the Independent Counsel shall be selected by a majority of the
Disinterested Directors, and the Corporation shall give written
notice to Indemnitee advising Indemnitee of the identity of the
Independent Counsel so selected. If a Change of Control shall have
occurred, the Independent Counsel shall be selected by Indemnitee
(unless Indemnitee shall request that such selection be made by the
Board, in which event the preceding sentence shall apply), and
Indemnitee shall give written notice to the Corporation advising it
of the identity of the Independent Counsel so selected. In either
event, Indemnitee or the Corporation, as the case may be, may,
within seven (7) days after such written notice of selection
shall have been given, deliver to the Corporation or to Indemnitee,
as the case may be, a written objection to such selection. Such
objection may be asserted only on the ground that the Independent
Counsel so selected does not meet the requirement of
“Independent Counsel” as defined in Section 14 of
this Agreement, and the objection shall set forth with
particularity the factual basis of such assertion. If such written
objection is made, the Independent Counsel so selected may not
serve as Independent Counsel unless and until a court has
determined that such objection is without merit. If, within twenty
(20) days after submission by Indemnitee of a written request
for indemnification pursuant to Section 7(a) of this Agreement, no
Independent Counsel shall have been selected or, if selected, shall
have been objected to, in accordance with this Section 7(c),
either the Corporation or Indemnitee may petition the Court of
Chancery of the State of Delaware or other court of competent
jurisdiction for resolution of any objection that shall have been
made by the Corporation or Indemnitee to the other’s
selection of Independent Counsel and/or for the appointment as
Independent Counsel of a person selected by the Court or by such
other person as the Court shall designate, and the person with
respect to whom an objection is favorably resolved or the person so
appointed shall act as Independent Counsel under Section 7(b) of
this Agreement. The Corporation shall pay any and all reasonable
fees and expenses incurred by such Inde
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