SEVERANCE AGREEMENT
This
Severance Agreement (the “Agreement”) is effective as of the date set forth
below in Paragraph 8(f) (the “Effective Date”) by and between Peerless Systems
Corporation (“Company” or “Peerless”) and Xxxxxxx X. Roll (“Mr. Roll” or
“Employee”) (collectively the “Parties”, and individually, a
“Party”).
WHEREAS
Mr. Roll is currently employed as the Company’s Chief Executive Officer and
President pursuant to an Employment Letter between the Parties dated June 12,
2008;
WHEREAS
Mr. Roll wishes
to
resign his employment as well as any and all offices, directorships and board
memberships he currently holds with the Company, and the Company wishes to
accept such resignations; and
WHEREAS
the Parties wish to resolve all disputes between them.
NOW,
therefore, the Parties agree as follows:
1. Separation
of Employment:
Mr.
Roll will resign his employment with the Company effective October 1, 2008
(the
“Resignation Date”). Upon the Resignation Date, Mr. Roll will also take all
steps necessary to immediately resign from any and all offices, directorships
and board memberships he currently holds with the Company and will execute
the
Resignation Letter attached hereto as Exhibit “A” in conjunction with such
resignations. By his signature below, Mr. Roll confirms that he has received
$10,461.44 which
represents his final wages through the Resignation Date, $507 for reimbursement
for expenses and is eligible for up to another $143 for reimbursement
for any and all documented outstanding business expenses. As a result of Mr.
Roll’s receipt of such payments on the Resignation Date, Mr. Roll acknowledges
that he has now received payment for any and all outstanding wages, overtime
pay, bonus, expenses, incentives and accrued but unused vacation pay and that
Mr. Roll is not owed any further payment of any type as a result of Mr. Roll’s
employment by Peerless, except as set forth herein. Mr. Roll specifically
acknowledges that he is not entitled to any further bonus or incentive amounts
from the Company of any type, including without limitation, any and all bonuses
or incentives which are or may become due to him for Peerless’ 2009 fiscal year.
2. Payment:
In
consideration for Mr. Roll entering into this Agreement, Peerless will pay
Mr.
Roll the total gross amount of two hundred fifty thousand dollars ($250,000)
to
which Mr. Roll is not otherwise entitled, less deductions required by law.
Included in this total amount is $35,907.76 representing Mr. Roll’s accrued but
unused vacation pay through the Resignation Date. Such payment will be made
in
one lump sum payable within (5) five business days following the later of:
(i)
the expiration of the seven (7) day revocation period described in Paragraph
8(f) below without revocation; (ii) Peerless’ receipt of this Agreement, duly
executed by Mr. Roll and approved as to form by his attorneys and, (iii)
delivery by Mr. Roll to the Company of the Certificates of Common Stock
referenced in Paragraph 5 of this Agreement, collectively (the “Conditions of
Payment”). In addition, the Company will pay 6 (six) months COBRA premiums for
Mr. Roll’s existing health care coverage subject to the Conditions of Payment
being met. Should the Company fail to make the payments described above, Mr.
Roll may revoke the resignations set forth in Paragraph 1 after providing the
Company’s Board of Directors with ten (10) days written notice of breach and the
opportunity to cure.
3. General
Release:
For and
in consideration of the payment described above in Paragraph 2 above to which
Mr. Roll is not otherwise entitled, and other good and valuable
consideration:
(a) Mr.
Roll
hereby voluntarily, knowingly and willingly releases, acquits and forever
discharges Company including, each of Company’s former, current and future
parents, subsidiaries, divisions, affiliates, predecessors, successors and
assigns and all of their current, former and future agents, employees, officers,
directors, shareholders, board members, partners, joint venturers, members,
attorneys, representatives, predecessors, successors, assigns, owners and
servants, from any and all claims, costs or expenses of any kind or nature
whatsoever, whether known or unknown, foreseen or unforeseen, including without
limitation, any and all claims for any type of bonus or incentive compensation
arising out of or relating to work performed for the Company in 2008, any claims
related to the Company’s stock or the issuance of stock options, any and all
claims arising out of or related to the June 12, 2008 Employment Letter, any
and
all claims under any Change of Control Severance Agreement, Stock Option Grant
Notice or Restricted Stock Purchase Agreement between the Parties, any currently
pending claim under the Company’s various policies of insurance for actions of
directors or officers, any employment related claims under the Americans with
Disabilities Act, the Age Discrimination in Employment Act, Title VII of the
Civil Rights Act, the Family Medical Leave Act, the California Fair Employment
and Housing Act, the California Family Rights Act, the Employment Retirement
Income Security Act, the California Constitution, the California Labor Code,
or
under common law, which against any or all of them Mr. Roll ever had, now has
or
hereinafter may have, up to and including the date of Mr. Roll’s execution of
this Agreement, including, without limitation, those arising out of or in any
way related to Mr. Roll’s employment at Company or the separation of that
employment.
(b) Company
hereby voluntarily, knowingly and willingly releases, acquits and forever
discharges Mr. Roll from any and all claims, costs or expenses of any kind
or
nature whatsoever, whether known or unknown, foreseen or unforeseen, which
Company ever had, now has or hereinafter may have, up to and including the
date
of Company’s execution of this Agreement, including, without limitation, those
arising out of or in any way related to Mr. Roll’s employment at Company or the
separation of that employment, except for such currently unknown claims for
restitution arising directly from any currently unknown criminal conduct engaged
in by Mr. Roll. In conjunction with this exception, the Company represents
that
it is not aware of, is not investigating as of the date hereof, and has no
present intention to investigate any such conduct at the time of the Effective
Date of this Agreement.
(c) It
is a
condition hereof, and it is all Parties intention in the execution of the
General Release in subparagraphs 3(a) and (b), above, that the same shall be
effective as a bar to each and every claim specified above. In furtherance
of
this intention, (and with the sole exception of unknown claims for restitution
against Mr. Roll as described in Paragraph 3(b)above to which the Company’s
waiver of Section 1542 of the California Civil Code does not apply) all Parties
hereby expressly waive any and all rights and benefits conferred upon the other
by Section 1542 of the California Civil Code, which provides:
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A
general release does not extend to claims which the creditor does not know
or
suspect to exist in his or her 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.
4. Stock
Options:
Mr.
Roll acknowledges and agrees that he has ninety (90) days from the Resignation
Date in which to exercise any and all vested stock options. All options which
remain unvested as of the Resignation Date will be extinguished as of that
date.
5. Common
Stock:
By his
signature below, Mr. Roll represents and warrants that he owns good and
marketable title to two hundred thousand (200,000) shares of common stock in
the
Company and that his ownership of such stock is free and clear of any
indebtedness, restrictions or encumbrances (the “Roll Stock”). Mr. Roll agrees
to sell, and Company agrees to buy, such Roll Stock for $2.00 a share. Mr.
Roll
will deliver the Certificates of Common Stock for the Roll Stock to the Company
as of the Effective Date of this Agreement. Payment for the Roll Stock will
be
made within five (5) business days of the date of the Conditions of Payment
set
forth in Paragraph 2 are satisfied.
In
addition, Mr. Roll acknowledges, agrees and warrants that for two (2) years
following the Effective Date, he will not purchase, hold or contract to purchase
or hold, directly or indirectly any stock of any type in the Company except
with
the sole exception of stock purchased in conjunction with the exercise of the
vested stock options as set forth in Paragraph 4 of this Agreement.
6. Non-Disparagement:
Unless
otherwise compelled by applicable law, Company’s currently serving Board members
while serving on the Board and Mr. Roll will not say or do anything to disparage
the other or any of the Company’s current, former or future managers, officers,
employees, board members, directors or agents or its products or services to
any
person or entity. Provided Mr. Roll directs inquiries regarding his employment
history at the Company to the Chairman of the Board, the Company will respond
to
all such inquiries with only dates of employment and job title held, and final
salary information. If asked for any other information concerning Mr. Roll’s
employment, the Company shall state that Company policy does not permit the
disclosure of any additional information. In addition, should Mr. Roll
reasonably believe Xxxx Xxxxxx has breached his obligations to the Company
and
disclosed confidential information regarding Mr. Roll to a third party, the
Company will assign its rights under its agreement with Xx. Xxxxxx to Mr. Roll
for enforcement.
7. Non-Disclosure
and Destruction of Mr. Roll’s Personal Information:
The
Company acknowledges that it is currently in possession of certain personal
information regarding Mr. Roll and/or his family which does not pertain to
Company business (“Personal Information”). Personal Information includes but is
not limited to the following: (a) written correspondence and e-mails; (b)
information embodied in such written correspondence and e-mails; and, (c)
information obtained by any inquiry, discussion, or in any other manner relating
to the Personal Information and/or Mr. Roll or his family other than standard
personnel information. Unless otherwise compelled by applicable law, the Company
(including its employees, shareholders, directors, officers, attorneys, agents,
and/or representatives) shall not verbally or in writing discuss or disclose
to
any person or entity the Personal Information.
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The
Company hereby represents that it shall destroy all written Personal Information
contained in any media, whether electronic, paper, or otherwise. This obligation
includes the obligation to destroy any information contained on backup tapes
or
any other backup system of the Company, as well as any information contained
on
hard drives or servers of the Company.
8. Miscellaneous:
(a) The
Parties represent and warrant that they have not assigned or transferred, or
purported to assign or transfer, to any person, firm, corporation or entity
any
claim or other matter released by this Agreement. The Parties agree to indemnify
each other and hold each other harmless against any claims, costs or expenses,
including, without limitation, attorneys’ fees actually paid or incurred,
arising out of, related to or in any manner whatsoever connected with any such
transfer or assignment or purported or claimed transfer or
assignment.
(b) With
the
exception of any previously executed confidentiality and proprietary information
agreements between Company and Mr. Roll, this Agreement sets forth the entire
agreement between Mr. Roll and Company and fully supersedes any and all prior
agreements or understanding between them pertaining to the subject matter of
this Agreement. It may not be altered, modified, amended or changed, in whole
or
in part, except in writing executed by Mr. Roll and Company.
(c) Should
any provision or term or part of a provision or term, of this Agreement be
declared or determined by any court or arbitrator to be illegal or invalid,
the
validity of the remaining parts, provision or terms shall not be affected
thereby and said illegal or invalid part, provision or term shall not be deemed
to be a part of this Agreement.
(d) This
Agreement shall be governed by the laws of the State of California.
(e) Nothing
contained in this Agreement nor the fact that the Parties sign this Agreement
shall be considered as an admission of any type by either Party. Each Party
shall bear its or his own attorneys fees in conjunction with all matters related
to this Agreement and the events leading up to this Agreement.
(f) Pursuant
to the Older Workers Benefit Protection Act, Company and Mr. Roll acknowledge
and agree that: (i) Mr. Roll will have twenty-one (21) days to consider the
terms of this Agreement (including, without limitation, Mr. Roll’s release and
waiver of any and all claims under the Age Discrimination in Employment Act)
before executing it; (ii) Mr. Roll will have seven (7) days after Mr. Roll’s
execution of this Agreement in which to revoke this Agreement, in which event
a
written notice of revocation must be received by 5pm PST, on or before the
seventh day; and (iii) this Agreement will not become effective and enforceable
until the seven (7) day revocation period has expired without revocation of
the
Agreement by Mr. Roll. However, nothing contained in this Paragraph 8(f) shall
allow Mr. Roll to revoke the resignations as set forth in Paragraph 1 of this
Agreement.
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(g) Mr.
Roll
agrees to take all necessary steps to withdraw or otherwise extinguish his
current claim under the Company’s Director and Officers liability policy for
defense and indemnity and further agrees he will not reinstate a claim which
arises out of or relates to the same underlying facts giving rise to his current
claim under any Company insurance policy.
(h) Mr.
Roll
acknowledges that: (i) Mr. Roll fully understands the terms of this Agreement
including, without limitation, the significance and consequences of the General
Release in Paragraph 3, above; (ii) Mr. Roll has been advised by Company to
consult an attorney regarding any potential claims as well as the terms and
conditions of this Agreement before executing it; (iii) Mr. Roll is executing
this Agreement in exchange for consideration in addition to anything of value
to
which Mr. Roll is already entitled; and (iv) Mr. Roll is fully satisfied with
the terms of this Agreement and is executing this Agreement voluntarily,
knowingly and willingly and without duress.
(i) This
Agreement may be executed in several counterparts, each of which shall be deemed
an original as against any Party who signed it, and all of which shall
constitute one and the same document. This Agreement may also be signed by
facsimile, and such facsimile copies shall be deemed originals against the
Party
who faxed them. That Party shall provide an original “wet ink” copy of his
signature within five business days of sending the fax.
(j) Arbitration.
Except
for claims under the National Labor Relations Act, the California Worker’s
Compensation Act, claims for Unemployment benefits and claims before
governmental administrative bodies, Mr. Roll and the Company agree that any
dispute regarding this Agreement or Mr. Roll’s employment by the Company will be
submitted to binding arbitration before a neutral arbitrator subject to rules
of
the American Arbitration Association. Disputes subject to this clause include
any claims under Title VII of the Civil Rights Act, California’s Fair Employment
and Housing Act, the Family Medical Leave Act and the California Family Rights
Act. The Parties’ agreement to arbitrate any and all disputes is governed by and
is subject to the rules of the Federal Arbitration Act and the California
Arbitration Act including their mandatory and permissive rights to discovery.
Each Party may seek injunctive or equitable relief pursuant to California Code
of Civil Procedure § 1281.8(b). The Parties agree to file any demand for
arbitration within the time limit established by the applicable statute of
limitations. The award of the Arbitrator shall be in writing and shall set
forth
the basis for his or her decision. Fees of the Arbitrator shall be paid by
the
Company where required by applicable law. THE PARTIES UNDERSTAND AND AGREE
THAT
THEY ARE WAIVING THEIR RIGHTS TO BRING SUCH CLAIMS TO COURT, INCLUDING THE
RIGHT
TO A JURY TRIAL.
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IN
WITNESS HEREOF, this Agreement is entered into and executed by the Parties
on
the date set forth below in Los Angeles, California.
“Peerless
Systems Corporation”
|
“Mr.
Roll ”
|
|
By:
/s/
Xxxxxxx Xxxx
Its:
Chief Financial Officer
|
/s/
Xxxxxxx X. Roll
Xxxxxxx
X. Roll
|
|
Dated:
October 7, 2008
|
Dated:
October 6, 2008
|
APPROVED
AS TO FORM:
/s/
Xxxxxxxx X. La Mar
Xxxxxxxx
X. La Mar
LOEB
& LOEB LLP
ATTORNEY
FOR
PEERLESS
SYSTEMS CORPORATION
|
APPROVED
AS TO FORM:
/s/
Xxxx Xxxxxx
Xxxx
Xxxxxx
Xxxxxxxxx,
Fields & Whitcombe LLP
ATTORNEY
FOR XXXXXXX X. ROLL
|
|
Dated:
October 6, 2008
|
Dated:
October 6, 2008
|
6
EXHIBIT
A
To: Board
of
Directors of Peerless Systems Corporation
Gentlemen:
The
undersigned does hereby resign as a Director, Chief Executive Officer, President
and all other offices which may be held by him of Peerless Systems Corporation
and each of its subsidiaries and affiliates, effective immediately.
Dated: October 6, 2008 | /s/ Xxxxxxx X. Roll |
Xxxxxxx X. Roll |
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