CONSULTING AGREEMENT
Exhibit 10.1
THIS CONSULTING AGREEMENT (“Agreement”) is made and entered into as of December 15,
2006 by and between Peerless Systems Corporation (“Company” or “Peerless”) and
Xxxxxx X. Xxxxxx (“Consultant”).
WHEREAS, Consultant concurrently with the execution and delivery of this Agreement has
resigned as the Chief Executive Officer and President of the Company; and
WHEREAS, the Company and Consultant (the “Parties”) wish to set forth in writing the
terms on which Consultant will be retained as a consultant by the Company;
THEREFORE, the Parties agree as follows:
1. TERM
1.1 Term. The term of this Agreement shall commence on December 15, 2006 (the
“Effective Date”), and shall continue on the terms and conditions set forth below until the
one and one half (1 1/2) anniversary of the Effective Date, unless earlier terminated as provided in
Section 5 (the “Term”). Consultant’s consulting relationship as defined in this Agreement
will cease at the end of the Term. A new Agreement may be negotiated at that time, subject to
mutual concurrence between the Company and Consultant.
2. POSITION AND DUTIES
2.1 As of the Effective Date, Consultant hereby resigns as President and CEO of the Company
and any of its subsidiaries and affiliates, but shall retain his seat on the Board and shall be
retained as a consultant by the Company on the terms and conditions set forth herein. Consultant
acknowledges that he has been paid all wages, including vacation pay, in connection with his
services as President and CEO. During the Term, Consultant shall take such actions as the CEO may
direct from time to time in his capacity as Consultant; provided, however, that Consultant shall be
required to devote no more than approximately twenty hours per month to the performance of his
duties hereunder.
2.2 Except as provided herein and all option agreements entered into prior to the Effective
Date and the indemnification agreement previously signed, Consultant hereby acknowledges that any
and all agreements that he was subject to as an employee of the Company are terminated as of the
Effective Date of this Agreement.
2.3 Consultant, at his own cost, agrees to provide working space and facilities, and any other
services and materials Consultant may reasonably request in order to perform the work assigned to
him. All work shall be performed at Consultant’s facilities unless otherwise mutually agreed and
shall be performed in a workmanlike and professional manner by Consultant.
2.4 Anything herein to the contrary notwithstanding, the parties hereby acknowledge and agree
that Company shall have no right to control the manner, means, or method by which Consultant
performs the services called for by this Agreement. Rather, Company shall be entitled
only to direct Consultant with respect to the elements of services to be performed by Consultant
and the results to be derived by Company, to inform Consultant as to where and when such services
shall be performed, and to review and assess the performance of such services by Consultant for the
limited purposes of assuring that such services have been performed and confirming that such
results were satisfactory.
2.5 Consultant shall be entitled to the same directors and officers insurance benefits as the
directors of the Company generally.
3. COMPENSATION
3.1 Compensation. Consultant shall be paid a consulting fee at the bi-weekly rate of
$11,538.46 (the “Compensation”) during the Term. In the event of Consultant’s death during
the Term, any remaining Compensation, KMC Bonus Compensation, and Incentive Compensation if the
performance criteria are met, shall be paid to Consultant’s trust or estate, as applicable.
Consultant agrees to provide the Company with invoices which summarize his consulting duties.
3.2 KMC Bonus Compensation. Consultant shall be paid the remaining 50% of his Kyocera
Mita Corporation (KMC) bonus in the amount of $137,000 upon the earlier of the following events: 1)
KMC signs the Master Development Agreement (MDA) with no substantial changes to the intent of the
MOU; or 2) the full term of the MOU is completed and the Company receives what it would be entitled
to if KMC signed the MDA.
3.3 Incentive Compensation. Consultant shall be eligible for a target bonus of
$50,000 during the Term upon the satisfaction of performance criteria to be determined between
Consultant and the Board.
3.4 Board Compensation and Stock Option Awards. Consultant shall be entitled to any
and all compensation payable to non-employee directors, including stock options awarded upon each
successive election as a Director, under the Board compensation policies as the same may be adopted
and amended from time to time by the Board.
3.5 State and Federal Taxes. As Consultant is not an employee of the Consultant, the
Company shall not take any action with respect to any benefits or commitments due to Consultant
hereunder inconsistent with Consultant’s status as a consultant. In particular: a) the Company will
not withhold FICA (Social Security) from Consultant’s payments; b) the Company will not make state
or federal unemployment insurance contributions on behalf of Consultant; c) the Company will not
withhold state and federal income tax from payment to Consultant; d) the Company will not make
disability insurance contributions on behalf of Consultant; e) the Company will not obtain workers’
compensation insurance on behalf of Consultant. Consultant agrees to indemnify the Company in
connection with any tax issues associated with his consulting services.
3.6 Unvested Stock Options. Any unvested stock options granted to him prior to the
Term shall continue to vest during the Term pursuant to the terms of the applicable stock plan.
3.7 Benefits. Consultant shall be eligible to continue health care benefits through
December 31, 2006, and then for up to the end of the Term in accordance with COBRA, and the
Company will reimburse the Consultant for any actual, out of pocket expenses incurred in
connection therewith.
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3.8 Business Expenses. Consultant shall be entitled to reimbursement of reasonable
business expenses in accordance with Company policies, as they may be in effect from time to time.
3.9 Waiver of Benefits. Consultant understands and agrees that he is not entitled to
any benefits under the Company’s 401(k) plan. As such, if for any reason whatsoever, he is found
to be entitled to such benefits by a court or governmental agency, he expressly elects not to
contribute to said 401(k) plan.
4. TERMINATION
5.1 Termination By The Company For “Cause”. The Company may terminate Consultant’s
relationship only for “Cause.” For purposes of this Agreement, “Cause” shall mean the
Board’s reasonable determination that one or more of the following conditions exist:
(a) Consultant has been convicted of or pled guilty or nolo contendre to any felony, or has
entered into a consent decree with any federal or state securities regulator which prohibits
Consultant from being a director or officer of a publicly traded company;
(b) Consultant has committed one or more acts of theft, embezzlement or misappropriation
against the Company;
(c) Consultant has failed to substantially perform Consultant’s duties hereunder (other than
such failure resulting from Consultant’s incapacity due to physical or mental illness), which
failure has not been remedied within thirty days after written demand for substantial performance
was delivered by the Company which demand specifically identified the manner in which the Company
believes that Consultant has not substantially performed Consultant’s duties; and
(d) Consultant has materially breached his obligations under this Agreement, including without
limitation, Sections 6 and 7, which breach was not remedied within thirty (30) days after written
notice was delivered by the Company which specifically identified the breach that the Company
believes has occurred.
5. RIGHTS IN DATA
5.1 As between the Company and Consultant and for the consideration set out herein and for
other consideration which the parties acknowledge having been tendered and received, except as set
forth below in this section, all right, title, and interest in and to the programs, systems, data,
or materials used or produced by Consultant in the performance of the services called for in this
Agreement shall remain or become the property of the Company.
5.2 All right, title, and interest in and to all deliverables, including all rights in
copyrights or other intellectual property rights pertaining thereto, shall be held by the Company.
Consultant shall xxxx all deliverables with the Company’s copyright or other proprietary notice as
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directed by the Company and shall take all actions deemed necessary by the Company to perfect the
Company’s rights therein. In the event that Consultant can by law or otherwise retain any rights
to any deliverables, Consultant agrees to assign, and upon creation thereof automatically assigns,
all right, title, and interest in and to such deliverables to the Company, without further
consideration. Consultant agrees to execute any documents of assignment or registration of
copyright or other intellectual property rights requested by the Company respecting any and all
deliverables. Consultant retains no rights or license to utilize such deliverables except in
furtherance of the purposes of this Agreement or unless specifically authorized in writing by the
Company.
5.3 All copyrights, patents, trade secrets, design rights, or other intellectual property
rights associated with any ideas, designs, concepts, techniques, inventions, processes, or works of
authorship developed or created by Consultant during the course of performing the Company’s work
(collectively, the “Work Product”) shall belong exclusively to the Company. Consultant
automatically assigns at the time of creation of the Work Product, without any requirement of
further consideration, any right, title, or interest he may have in such Work Product, including
any and all copyrights, moral rights, community property rights or other intellectual property
rights pertaining thereto, and Consultant agrees not to exercise any moral rights with respect to
the Work Products. Upon request of the Company, Consultant shall take such further actions,
including execution and delivery of instruments of conveyance, as may be appropriate to give full
and proper effect to such assignment.
5.4 Notwithstanding anything to the contrary herein, Consultant shall be free to use and
employ his general skills, know-how, and expertise, and to use, disclose, and employ any
generalized ideas, designs, concepts, know-how, methods, techniques, or skills gained or learned
during the course of any assignment, so long as he acquires and applies such information without
disclosure of any confidential or proprietary information of the Company and without any
unauthorized use or disclosure of Work Product.
5.5 All right, title, and interest in and to any programs, systems, data, designs, and
materials furnished to Consultant by the Company are and shall remain the property of the Company.
6. COMMUNICATIONS SYSTEMS AND ACCESS TO INFORMATION
6.1 Consultant understands that Consultant may receive access to the Company’s computers and
electronic communications systems (“systems”), including but not limited to voicemail, email,
customer databases, and internet and intranet systems. Such systems are intended for legitimate
business use related to the Company’s business. Consultant acknowledges that Consultant does not
have any expectation of privacy as between Consultant and the Company in the use of or access to
the Company’s systems and that all communications made with such systems or equipment by or on
behalf of Consultant are subject to the Company’s scrutiny, use and disclosure, in the Company’s
discretion, but subject to the confidentiality provisions herein. The Company reserves the right,
for business purposes, to monitor, review, audit, intercept, access, archive and/or disclose
materials sent over, received by or from, or stored in any of its electronic
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systems. This includes, without limitation, email communications sent by users across the internet
and intranet from and to the xxx.xxxxxxxx.xxx domain or any other domain. This also includes,
without limitation, any electronic communication system that has been used to access any of the
Company’s systems.
Consultant also acknowledges that the Company reserves the right, for legitimate business purposes,
to search all work areas (for example, offices, cubicles, desks, drawers, cabinets, computers,
computer disks and files) and all personal items brought onto the Company’s property or used to
access the Company information or systems.
6.2 Consultant agrees that it will not use any computer equipment with a Microsoft Windows
operating system with any Company computer network unless such equipment has the latest patches and
updates provided by Microsoft, and has up-to-date virus protection software. Consultant agrees
that at all times it will be prepared to provide a proof of a recent full system scan using
up-to-date virus protection software for any such computer equipment. Consultant further agrees to
allow the Company’s IT department to inspect any such computer equipment prior to its use with any
Company network. Finally, Consultant agrees that the Company shall have access to and jurisdiction
over any such computer equipment when it is brought on to Company’s premises.
7. CONFIDENTIALITY
During the Term, Consultant will have access to and become acquainted with various information
relating to the Company’s business operations, including customer and supply lists, customer files,
marketing data, business plans, strategies, employee lists, contracts, financial records and
accounts, products in development, product plans, projections and budgets, and similar information.
Consultant agrees that to the extent such information is not generally known to or available to
the public and/or the industry, and gives the Company an advantage over competitors who do not know
of or use such information, such information and documents constitute “Confidential
Information” of the Company. Consultant further agrees that any documents relating to the
business of the Company, whether they are prepared by Consultant or come into Consultant’s
possession in any other way, are owned by the Company, shall remain the exclusive property of the
Company, and must be returned to the Company upon termination of employment. Consultant shall not
use any Confidential Information of the Company, directly or indirectly, for Consultant’s own
benefit, or the benefit of any person or entity other than the Company, nor shall Consultant
disclose Confidential Information to any person or entity other than the Company and its employees,
either during the Term or at any time thereafter, except as may be appropriate for Consultant to
perform his duties as consultant or director of the Company.
8. NON-SOLICITATION
8.1 Non-Solicitation. During the Term, and for a period of two years following the
date of Consultant’s consulting relationship hereunder is terminated, Consultant shall not solicit
or induce any of the Company’s employees, agents or independent contractors to end their
relationship with the Company, or recruit, solicit or otherwise induce any such person to perform
services for Consultant, or any other person, firm or company.
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9. ARBITRATION AGREEMENT
9.1 Any dispute between the Parties shall be finally settled by mandatory binding arbitration
in Los Angeles County, California. That arbitration will be conducted in accordance with California
Code of Civil Procedure section 1282 and following, including, but not limited to, Section 1283.05
(which governs the type of discovery that is available). The arbitration will take place before a
single arbitrator selected by mutual agreement between the parties. If the Parties are unable to
agree on a neutral arbitrator within thirty (30) days of a demand for arbitration, each will
appoint an independent third party and those two independent third parties shall appoint an
arbitrator. Each party to the arbitration shall bear that party’s own costs, attorney’s fees and
disbursements. A judgment on a binding arbitration award may be entered in any court of competent
jurisdiction. Notwithstanding the foregoing, the Parties acknowledge and agree that this provision
shall not preclude either party from requesting temporary and/or preliminary equitable relief,
including injunction or other provisional relief, to enforce the restrictive covenants contained
herein until such time as the dispute can be arbitrated and relief obtained, and for this purpose
hereby irrevocably consent and submit to the exclusive personal jurisdiction of, and venue in, the
federal and state courts located in Los Angeles, California.
10. GENERAL PROVISIONS
10.1 Assignment; Binding Effect. Neither the Company nor Consultant may assign,
delegate or otherwise transfer this Agreement or any of their respective rights or obligations
hereunder without the prior written consent of the other party, except in the case of Consultant’s
death. Any attempted prohibited assignment or delegation shall be void. This Agreement shall be
binding upon and inure to the benefit of any permitted successors or assigns of the parties and the
heirs, executors, administrators and/or personal representatives of Consultant.
10.2 Notices. All notices, requests, demands and other communications that are
required or may be given under this Agreement shall be in writing and shall be deemed to have been
duly given when received if personally delivered; when transmitted if transmitted by telecopy,
electronic or digital transmission method with electronic confirmation of receipt; the day after it
is sent, if sent for next-day delivery to a domestic address by recognized overnight delivery
service (e.g., FedEx); and upon receipt, if sent by certified or registered mail, return receipt
requested. In each case notice shall be sent to:
If to the Company:
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Peerless Systems Corporation 0000 Xxxxxxxxx Xxxxxx Xxxxxxxxx Xxxxx, XX 00000 Attention: Chief Consultant Officer Facsimile: (000) 000-0000 |
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If to Consultant:
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Xxxxxx X. Xxxxxx 0000 X. Xxxxx Xx. Xxxxxx Xxxxxxx, XX 00000 Fax: 000-000-0000 |
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Any party may change its address for the purpose of this Section 10.2 by giving the other
party written notice of its new address in the manner set forth above.
10.3 Entire Agreement. This Agreement constitutes the entire agreement of the parties
with respect to the subject matter hereof, and supersedes all prior agreements; provided, however,
that this Agreement shall supplement, not supersede, any prior agreements concerning the
Confidential Information or other intellectual property of the Company, and any conflicts or
inconsistencies between such agreements shall be resolved so that the provision providing greater
rights to the Company shall prevail.
10.4 Amendments; Waivers. This Agreement may be amended or modified, and any of the
terms and covenants may be waived, only by a written instrument executed by the parties hereto, or,
in the case of a waiver, by the party waiving compliance. Any waiver by any party in any one or
more instances of any term or covenant contained in this Agreement shall neither be deemed to be
nor construed as a further or continuing waiver of any such term or covenant of this Agreement.
10.5 Provisions Severable. In case any one or more provisions of this Agreement shall
be invalid, illegal or unenforceable, in any respect, the validity, legality and enforceability of
the remaining provisions contained herein shall not, in any way, be affected or impaired thereby.
If any provision hereof is determined by any court of competent jurisdiction to be invalid or
unenforceable by reason of such provision extending the covenants and agreements contained herein
for too great a period of time or over too great a geographical area, or being too extensive in any
other respect, such provision shall be interpreted to extend only over the maximum period of time
and geographical area, and to the maximum extent in all other respects, as to which it is valid and
enforceable, all as determined by such court in such action.
10.6 Attorney’s Fees. If any legal action, arbitration or other proceeding, is
brought for the enforcement of this Agreement, or because of an alleged dispute, breach or default
in connection with any of the provisions of this Agreement, each of the parties hereto shall be
responsible for payment of their own attorneys’ fees and other costs incurred by them in that
action or proceeding, without regard to whomever is the prevailing party in such action or
proceeding with respect to such claims, except as otherwise provided in Section 9.
10.7 Governing Law. This Agreement shall be construed, performed and enforced in
accordance with, and governed by the laws of the State of California without giving effect to the
principles of conflict of laws thereof.
10.8 Non-Disparagement. During Consultant’s consulting relationship with the Company
and thereafter, Consultant and the Company agree to represent Consultant and the Company in a
positive light and not to disparage or in any other way communicate to any person or entity any
negative information or opinion concerning each other, or the Company’s parents, subsidiaries and
affiliates, or any of their partners, members, shareholders, officers, directors, employees or
agents, or any of them. This provision shall not prohibit Consultant or the Company from making
any statements or taking any actions required by law, or reporting any actions or inactions
Consultant or the Company believe to be unlawful. This provision shall not
be interpreted to require or encourage Consultant or the Company to make any
misrepresentations.
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10.9 Return of Property. Upon termination of Consultant’s consulting relationship
with the Company, Consultant shall return to the Company any and all Company property, materials,
or equipment in his or her possession, including, without limitation, Company property described in
Section 7.
10.10 Cooperation. During Consultant’s consulting relationship with the Company and
thereafter, Consultant agrees to cooperate with the Company and its agents, accountants and
attorneys concerning any matter with which Consultant was involved during his consulting
relationship with the Company. Such cooperation shall include, but not be limited to, providing
information to, meeting with and reviewing documents provided by the Company and its agents,
accountants and attorneys during normal business hours or other mutually agreeable hours upon
reasonable notice and to make himself available for depositions and hearings, if necessary and upon
reasonable notice. If Consultant’s cooperation is required after the termination of Consultant’s
consulting relationship, the Company shall reimburse Consultant for any out of pocket expenses
incurred by Consultant for time spent performing his obligations hereunder.
10.11 Counterparts. This Agreement may be executed in one or more counterparts, each
of which shall be deemed an original, but all of which shall constitute the same instrument.
10.12 Headings. The headings contained in this Agreement are provided solely for the
Parties’ convenience and shall not be deemed to alter the meaning of the text of the Agreement.
10.13 Survival. Sections 5, 6, 7, 8, 9 and 10 shall survive the termination of this
Agreement.
10.14 Independent Contractor. The parties are and shall be independent contractors to
one another, and nothing herein shall be deemed to cause this Agreement to create an agency,
partnership, or joint venture between the parties. Nothing in this Agreement shall be interpreted
or construed as creating or establishing the relationship of employer and employee between the
Company and the Consultant.
10.15 Releases. As a condition to Consultant’s entitlement to the compensation,
payments and benefits provided for in Section 3 hereof, Consultant shall have executed and
delivered to the Company a release in the form attached hereto as Exhibit “A”, and such Release
shall have become irrevocable. If Consultant exercises his right to revoke the Release in
accordance with the terms thereof, then this Agreement shall become null and void ab initio.
10.16 ACKNOWLEDGEMENT OF KNOWING AND VOLUNTARY RELEASE. The Consultant certifies that
he has read the terms of this Agreement. The execution hereof by Consultant shall indicate that
this Agreement conforms to Consultant’s understandings and is acceptable to him as a final
agreement. It is further understood and agreed that Consultant has had the opportunity to consult
with counsel of his choice.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement effective as of the date
first written above.
THE COMPANY:
Peerless Systems Corporation,
a Delaware corporation
a Delaware corporation
| /s/ Xxxxxx X. Xxxxxxx | December 15, 2006 | |||||||
By:
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Xxxxxx X. Xxxxxxx | Date | ||||||
| Its: Chairman, Compensation | ||||||||
| Committee of the Board of Directors | ||||||||
CONSULTANT:
/s/ Xxxxxx X. Xxxxxx
|
December 15, 2006 | |||||
Xxxxxx X. Xxxxxx
|
Date |
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Exhibit A to Consulting Agreement
RELEASE
KNOW ALL PERSONS BY THESE PRESENTS that the undersigned, Xxxxxx X. Xxxxxx (“Executive”), for and in
consideration of certain benefits heretofore paid or to be paid or provided to him by Peerless
Systems Corporation, a Delaware corporation (“Peerless”), as such benefits are set forth in a
Consulting Agreement dated as of December 15, 2006 (the “Consulting Agreement”), on behalf of
himself and his heirs, executors, administrators, agents, affiliates, successors and assigns, does
hereby irrevocably and unconditionally agree to release, waive and forever discharge, except as
otherwise provided in this Release, Peerless and all of its subsidiaries, affiliates, successors
and assigns and their respective directors, officers, employees, attorneys, and agents
(collectively, the “Releasees”) from all Claims, as hereinafter defined, and Executive waives,
releases and covenants not to xxx Releasees or to file any lawsuit or any claim with any Federal,
state or local administrative agency asserting or in respect of any such Claims. Executive
acknowledges that the consideration amounts set forth in the Consulting Agreement are being paid to
him in part as consideration for this Release.
As used in this Release, the term “Claims” means and includes all charges, complaints, claims,
liabilities, obligations, promises, agreements, damages, actions, causes of action, rights, costs,
losses and expenses (including attorneys’ fees and costs actually incurred) of any nature
whatsoever, known or unknown, suspected or unsuspected, which Executive now has, or claims to have,
or which Executive at any earlier time had, or claimed to have had, or which Executive at any
future time may have, or claim to have, against each or any of the Releasees relating to or arising
out of Executive’s employment, compensation and benefits with Peerless or the termination thereof,
including, but not limited to rights arising out of alleged violations of any contracts expressed
or implied, written or oral, fraud, misrepresentation, infliction of emotional distress, or any
other tort, or for violation of any Federal, state or governmental statute, regulation or
ordinance, including but not limited to the following, each as amended to: (1) Title VII of the
Civil Rights Act of 1964, 42 U.S.C. Sections 2000 et seq.; (2) Section 1981 of the Civil Rights
Acts of 1886, 42 USC Section 198; (3) the American with Disabilities Act, 42 USC Section 12101 et
seq; (4) the Age Discrimination in Employment Act, 29 U.S.C. Sections 621-634; (5) the Equal Pay
Act of 1963, 29 U.S.C. Section 206; (6) Executive Order 11246; (7) Executive Order 11141; (8)
Section 503 of the Rehabilitation Act of 1973, 29 U.S.C. Sections 701 et seq.; (9) the Employment
Retirement Income Security Act of 1974, 29 U.S.C. Sections 1001 et seq.; and (10) any applicable
California or Delaware law, statute, regulation, ordinance, or constitutional or public policy
provisions.
Notwithstanding any provision in this Release to the contrary, it is agreed that the Executive does
not waive his rights (such rights and the enforcement thereof shall not be in “Claims” hereunder)
(i) to coverage under any directors and officers insurance policy, (ii) for indemnification
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pursuant to Peerless’ Certificate of Incorporation or Amended and Restated By-laws or any
applicable Delaware law, statute, regulation, ordinance or constitutional or public policy
provisions, and each case, as an effect on the date of this Release, for acts or omissions
occurring or alleged to have occurred during Executive’ employment or other service to Peerless,
(iii) to enforce the Consulting Agreement or any other rights under any employee or retirement
benefit plan, program or policy of Peerless, (iv) any rights he may have under the indemnification
agreements previously signed; or (v) any existing option agreements as of the Effective Date.
Executive hereby represents that (i) neither he, nor any one acting his discretion or on his
behalf, has filed any complaints, charges, claims, demand or lawsuits with respect any Claim (an
“Action”) against any Releasee with any governmental agency or any court; (ii) he will not file or
pursue any Action at any time thereafter; and (iii) if any such agency or court assumes
jurisdiction of any Action, against any Releasee on behalf of Executive, he will request such
agency or court to withdraw the matter, to the extent such Action can be interpreted as seeking the
recovery of monetary relief for the Executive. Nothing in the preceding sentence shall be
interpreted as preventing the Executive from bringing an Action solely for the purpose of
challenging the waiver and release of Claims under the Age Discrimination and Employment Act.
This Release extends to all rights, claims, demands, liabilities, actions, causes of action,
damages, losses, costs, expenses and compensation of Executive or his heirs, executors,
administrators, agents, affiliates, successors and assigns, whether or known or unknown, foreseen
or unforeseen, patent or latent, described above, in which Executive may currently or in the future
possess, in each case arising contemporaneously with or prior to the date this Release is executed
by Executive or on account of or arising out of any matter, cause or event to occur
contemporaneously with or prior to such execution. Executive fully understand and acknowledges
that, in the event the facts underlying the foregoing release are found to be other than or
different from the facts now understood by Executive to be true, Executive expressly accepts and
assumes the risks of the possible differences in facts and agrees that the release set forth in
this Release shall remain in full force and effect, notwithstanding any such differences in facts.
Notwithstanding the foregoing, the Releases agree that Executive does not waive his rights (i) to
coverage under any directors and officers insurance policy, (ii) for indemnification pursuant to
Peerless’ Certificate of Incorporation or Amended and Restated By-Laws or any applicable Delaware
law, statute, regulation, ordinance or constitutional or public policy provisions as in effect on
the date of this Release for acts or omissions occurring or alleged to have occurred during
Executive’s employment or other service to Peerless, or (iii) to enforce the Consulting Agreement
or any rights under any employee or retirement benefit plan, program or policy of Peerless.
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EMPLOYEE ACKNOWLEDGES THAT EMPLOYEE IS FAMILIAR WITH THE PROVISIONS OF CALIFORNIA CIVIL CODE
SECTION 1542, WHICH PROVIDES AS FOLLOWS:
“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.”
EMPLOYEE BEING AWARE OF SAID CODE SECTION, HEREBY EXPRESSLY WAIVES ANY RIGHTS EMPLOYEE MAY
HAVE THEREUNDER, AS WELL AS UNDER ANY OTHER STATUTES OR COMMON LAW PRINCIPLES OF SIMILAR EFFECT.
This Release is made and entered into, and shall be subject to, governed and interpreted in
accordance with the laws of the California and shall be fully enforced in the courts of that state
without regard to principles of conflict of laws.
Nothing in this Release shall be interpreted as a waiver or release of any rights the Executive may
have under the Age Discrimination and Employment Act that arise after the date the Executive
executes this Release. Executive hereby further acknowledges that he has been given a period of
twenty-one (21) days to review and consider this Release by signing it. Executive further
understand he may use none or as much of this twenty one (21) day period as he wishes prior to
signing.
Executive is advised that he has the right and should consult with any attorney before signing this
Release. Executive understands that whether or not to do so is the Executive’s decision.
Executive acknowledges that he has exercised his right to consult with an attorney to the extent,
if any, that he desired.
Executive may revoke this Release with seven (7) days after he signs it. Revocation can be made by
delivering a written notice of revocation to the General Counsel for Peerless. For such revocation
to be effective, Peerless must receive such written notice no later than the close of business on
the seventh day after the day in which the Executive executes this Release. If Executive revokes
this Release, it shall not be effective and the Transition Agreement shall be null and void ab
initio.
Executive acknowledges he has read this Release, understands and is voluntarily executing it and
that no representations, promises or inducements have been made to Executive except as set forth in
this release voluntarily, and he intends to be legally bound by its terms, with full understanding
of its consequences.
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Executive acknowledges that this Release covers all known and unknown claims arising
contemporaneously with or prior to the date this Release is executed or on account of or arising
out any matter, cause or event to occur contemporaneously with or prior to such execution,
including claims arising under the Age Discrimination and Employment Act.
Executed at El Segundo, California on December 15, 2006.
WITNESS:
|
XXXXXX X. XXXXXX | |||||
/s/ Xxx Xxxxxx
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/s/ Xxxxxx X. Xxxxxx | |||||
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