PEERLESS CONSULTING SERVICES AGREEMENT
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PEERLESS
CONSULTING SERVICES AGREEMENT
This
Consulting Services Agreement (the “Agreement”) is entered into as
of December 1, 2008, (“Effective Date”) by and
between Peerless Systems Corporation, having its principal place of business at
0000 Xxxxxxxxx Xxxxxx, Xx Xxxxxxx, XX 00000 (“Peerless”) and Xxxxxxx Xxxx,
having his principal place of business at 000 Xxxx 00xx Xxxxxx,
Xxxxxxxxx 000, Xxx Xxxx, XX 00000 ("Consultant").
THE
PARTIES HEREBY AGREE:
During the term of this Agreement,
Consultant will perform services for Peerless as outlined in the Work
Authorization in the form of Appendix
A attached hereto and incorporated by reference herein. This Agreement
comprises the contract between Peerless and Consultant. References
throughout this Agreement to "Peerless" shall mean Peerless Systems Corporation,
and all of its subsidiary and affiliated companies.
Consultant agrees to perform the
services for Peerless described in a Work Authorization (the "Services") at the place and
during the period specified in the Work Authorization, unless sooner terminated
as provided in this Agreement. During the performance of the
Services, the Strategic Committee of the Board of Directors of Peerless
(“Strategic Committee”), primarly through its Chairman, will act as
the Peerless liaison with Consultant. Consultant will be paid for the
Services as described in the Work Authorization. Consultant agrees to
use its best efforts to provide such services as described in a Work
Authorization. Consultant shall adhere to Peerless’ rules and
policies, including but not limited to Peerless’ Code of Conduct.
3.
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Consultant agrees to submit to Peerless
invoices on a monthly basis. Peerless shall reimburse Consultant for
reasonable travel, living or other expenses which have been authorized in
advance in writing by Peerless, are in compliance with Peerless’ standard
expense reimbursement policy and are incurred in connection with the performance
of Services. Such expenses shall be itemized on Consultant's invoices
and supported with receipts. Peerless shall pay such invoices within
30 days of actual receipt.
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(a) Consultant
acknowledges that all of the information that he learns in his capacity as
a consultant constitutes proprietary information and trade secrets which
are the property of Peerless (“Peerless Property”). Consultant
shall exercise all precautions commensurate with its highest standards for
the protection of its own trade secrets and proprietary information to
insure that the Peerless Property is not
disclosed;
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(b) Consultant
shall not use the Peerless Property for the benefit of any third party or permit
any third party to install or use the Peerless Property.
(c) Consultant
shall not use the Peerless Property for internal production use, competitive
analysis or benchmarking of any kind;
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(d) All
copies of the Peerless Property made by Consultant are and remain the
property of Peerless and shall be conspicuously
marked.
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Consultant
agrees that the results of the Services and all information furnished to
Consultant by or concerning Peerless, its products or activities, including
without limitation, Proprietary Information (as defined in Appendix B) of
Peerless and any third party and the terms of Consultant's compensation under
this Agreement, will be subject to the Consultant's Nondisclosure Agreement,
which is attached to this Agreement as Appendix
B and incorporated by reference.
6.
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Consultant agrees that it will, during
the term of this Agreement, provide weekly update reports to the Strategic
Committee of the Board of Directors of Peerless. In addition, Consultant will
keep Peerless advised as to Consultant's progress in performing the Services
hereunder, and that it will, as requested by Peerless, prepare written reports
with respect thereto.
Consultant
certifies that Consultant does not have any outstanding agreement or obligation
that is in conflict with any of the provisions of this Agreement or that would
preclude Consultant from complying with the provisions
hereof. Consultant agrees further not to enter into any Agreement
with another party which conflicts with the terms and conditions of this
Agreement.
Consultant
shall devote his full-time efforts to the business of Peerless and shall not
devote time to other activities except (a) for activities involving Spinback or
Work Market that are for no more than 5 hours per week and (b) with the prior
written consent of the Strategic Committee. Consultant covenants and
agrees that for the term of this Agreement, Consultant shall not, whether as an
executive, employee, consultant, agent, principal, partner, member, stockholder,
corporate officer or director, or in any other individual or representative
capacity, whether or not for compensation, engage in or participate in or render
services to any other, provided however,
that, notwithstanding the foregoing, Consultant (a) may invest in securities of
any entity, solely for investment purposes and without participating in the
business thereof, if (x) such securities are traded on any national securities
exchange of the National Association of Securities Dealers, Inc. Automated
Quotation System, and (y) Consultant does not, directly or indirectly, own two
percent (2%) or more of any class of securities of such entity.
This
Agreement shall be effective as of the Effective Date set forth
above. Either party may terminate this Agreement with or without
Cause upon thirty (30) days prior written notice to the other
party. If a default occurs, the non-defaulting party may immediately
terminate this Agreement and may exercise any other remedy available to it under
law or equity. Remedies shall be cumulative and there shall be no
obligation to exercise a particular remedy. No delay or failure by
either party shall constitute a waiver by any party of any right or rights under
this Agreement.
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10.
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10.1 This
Agreement shall be governed by and construed in accordance with the laws of the
State of New York (excluding conflict of laws principles) and the parties
consent to jurisdiction of the State and Federal Courts of New
York.
10.2 This
Agreement constitutes the complete and exclusive statement of the Agreement
between the parties concerning the subject matter of this Agreement (including
Appendixes A and B and any Work Authorizations executed by both parties
referencing this Agreement). Peerless and Consultant agree that this
agreement supersedes any prior agreements, proposals, or communications ,
written or oral, regarding this subject matter. No representation or
promise relating to and no amendment of this Agreement shall be binding unless
it is in writing and signed by duly authorized representatives of both
parties. Notwithstanding the above, the parties acknowledge and agree
that they may have entered into other separate agreements with each
other.
10.3 In
the event that any of the provisions contained in this Agreement are held to be
unenforceable, this Agreement shall be construed without such
provisions.
10.4 All
notices or requests, including communications and statements which
are required or permitted under the terms of this Agreement, shall be in writing
and shall be sent by telex or facsimile (and if confirmed by courier or mail),
or sent by recognized commercial overnight courier, or mailed by United States
registered or certified mail.
Notices
shall be sent to the parties at the following addresses:
For
Peerless:
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Peerless
Systems Corporation
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0000
Xxxxxxxxx Xxxxxx
Xx
Xxxxxxx, XX 00000
For Consultant:
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Xxxxxxx Xxxx |
000 Xxxx
00xxXxxxxx, Xxx 00X
Xxx Xxxx,
XX 00000
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IN
WITNESS WHEREOF, the parties have caused their authorized representatives to
execute this Agreement as of the Effective Date above.
Peerless
Systems Corporation
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CONSULTANT:
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By:
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/s/
Xxxxxxx Xxxx
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By:
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Xxxxxxx
Xxxx
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Name:
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Xxxxxxx
Xxxx
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Name:
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Xxxxxxx
Xxxx
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Title:
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Chairman
of the Board
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Title:
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Date:
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12/3/08
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Date:
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12/3/08
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![](https://www.sec.gov/Archives/edgar/data/897893/000114420410035080/logo.jpg)
APPENDIX
A
WORK
AUTHORIZATION NO. 1
Primary
Responsibilities
The
Consultant will take responsibility for the generation and execution of
investment opportunities for Peerless. He/she will be responsible for
leading efforts in the following essential areas:
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·
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development
of business plans
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·
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modeling
and financial analysis of investment and acquisition
opportunities
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·
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development
and maintenance of the Company’s pipeline of potential
investments;
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·
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assessment
of the financial and strategic condition of the individual targets
pursued;
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·
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oversight
of third-party consultants, if any, hired in the pursuit, diligence and
execution of transactions;
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·
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oversight
of structuring discussions and deal negotiations with interested
parties;
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·
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preparation
of reports and presentations to the Strategic Committee as well as the
full Board of Directors, when appropriate;
and,
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·
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management
of closing activities in the event transactions are
consummated.
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COMMENCEMENT
DATE OF SERVICES: December 1, 2008
DESCRIPTION
OF CONSULTANT'S PAYMENT: $14,000 USD per month during the Term of the Agreement
plus the possibility of a bonus payment the amount of such, if any, being at the
sole discretion of the Board of Directors of Peerless.
MAXIMUM
PAYMENT OBLIGATION OF PEERLESS UNDER
THIS WORK
AUTHORIZATION: $14,000 USD per month plus expenses as outlined in
Exhibit C unless terminated in accordance with this Agreement
PEERLESS
SYSTEMS CORPORATION
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CONSULTANT:
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By:
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/s/
Xxxxxxx Xxxx
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By:
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/s/
Xxxxxxx Xxxx
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Name:
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Xxxxxxx
Xxxx
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Name:
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Xxxxxxx
Xxxx
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Title:
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Chairman
of the Board
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Title:
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Date:
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12/3/08
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Date:
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12/3/08
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