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Exhibit 10.3
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 reaso
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