SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of report (Date of earliest event reported): October 7, 2015
SELECTICA, INC.
(Exact name of Company as specified in Charter)
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Delaware
(State or other jurisdiction of
incorporation or organization) |
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000-29637
(Commission File No.) |
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77-0432030
(IRS Employee Identification No.) |
2121 South El Camino Real
San Mateo, California 94403
(Address of Principal Executive Offices)
(650) 532-1500
(Issuer Telephone number)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the Company under any of the following provisions (see General Instruction A.2 below).
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR240.14a-12) |
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)). |
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13(e)-4(c)) |
Item 5.02. Departure of Director or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
On October 7, 2015, the Board of Directors of Selectica, Inc. (the “Company”) appointed Mr. John Nolan as Chief Financial Officer of the Company, replacing Mr. Todd Spartz, who resigned as Chief Financial Officer and Secretary on October 7, 2015.
Prior to joining the Company, Mr. Nolan was the President of Quadel Consulting Corporation since 2013. Mr. Nolan joined Quadel Consulting Corporation in 2006 and previously served as its Executive Vice President, Chief Financial Officer, Chief Operating Officer and Vice President. Prior to joining Quadel, Mr. Nolan held various senior management positions with MCI Inc., including Vice President of Corporate Finance for MCI Telecommunications Inc. and Vice President of Corporate Finance for the MCI Group. He was responsible for planning, segment reporting, and profitability modeling for the $21 billion company, and led MCI's restructuring efforts by creating the financial plan of reorganization. During his fifteen-year tenure at MCI, he also oversaw the purchase and integration of several companies and held various other accounting and finance management positions. Prior to joining MCI, he held accounting positions at IBM, where he worked from 1988 to 1990. Mr. Nolan has spoken on financial leadership and cost analysis at Chief Financial Officer Magazine, Better Management Live and IDC conferences. The costing systems he put in place at MCI received the 2004 Enterprise Intelligence award from the software company SAS. Mr. Nolan has a Bachelor’s degree in Management from Tulane University and a Master’s degree in Business Administration from the University of Texas at Austin. Mr. Nolan earned his CPA license in Virginia.
In connection with his appointment as Chief Financial Officer of the Company, on October 7, 2015, the Company entered into an employment offer letter and a severance agreement with Mr. Nolan. The employment offer letter provides for an annual salary of $250,000 and provides that Mr. Nolan will be eligible to be considered for an annual incentive bonus of up to $75,000 based on criteria to be established by the Company’s Chief Executive Officer. The severance agreement provides that if Mr. Nolan’s employment is terminated by the Company without Cause or by Mr. Nolan for Good Reason, in each case within 12 months following a Change in Control of the Company (as each such term is defined in the severance agreement), the Company will be required to pay Mr. Nolan severance benefits equal to his then-existing base salary and the employer portion of Mr. Nolan’s monthly health insurance premium for a period of 12 months following his separation from service, less applicable withholdings and deductions and subject to Mr. Nolan signing a general release of claims. If Mr. Nolan’s employment is terminated by the Company without Cause prior to a Change in Control, the Company will be required to pay Mr. Nolan severance benefits equal to his then-existing base salary and the employer portion of Mr. Nolan’s monthly health insurance premium for a period of 6 months following his separation from service, less applicable withholdings and deductions and subject to Mr. Nolan signing a general release of claims. Copies of the employment offer letter and the severance agreement are attached to this Current Report on Form 8-K as Exhibit 10.1 and Exhibit 10.2, respectively, and are incorporated by reference into this Item.
Mr. Nolan will also be granted a non-qualified option to purchase 100,000 shares of the Company’s common stock, exercisable for 10 years, subject to vesting over a 48-month period, with one quarter (1/4) of the option shares vesting after 12 months of continuous service from Mr. Nolan’s start date, and the remaining option shares vesting in equal monthly installments over the following 36 months of continuous service to the Company. Under the terms of his severance agreement, the option shares would vest in full if Mr. Nolan’s service to the Company is terminated by the Company without Cause or by him for Good Reason within 12 months following a Change in Control. The option will be granted as an inducement grant outside of the Company’s 2015 Equity Incentive Plan in reliance on NASDAQ Listing Rule 5635(c)(4).
Item 9.01 Financial Statements and Exhibits.
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Exhibit
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Description |
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10.1 |
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Offer Letter of Employment, dated as of October 7, 2015, by and between Selectica, Inc. and John Nolan. |
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10.2 |
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Severance Agreement, dated as of October 7, 2015, by and between Selectica, Inc. and John Nolan. |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the Company has duly caused this Current Report to be signed on its behalf by the undersigned hereunto duly authorized.
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Dated: October 8, 2015 |
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SELECTICA, INC. |
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By: |
/s/ Patrick Stakenas |
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Name: |
Patrick Stakenas |
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Title: |
Chief Executive Officer |
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EXHIBIT INDEX
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Exhibit
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Description |
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10.1 |
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Offer Letter of Employment, dated as of October 7, 2015, by and between Selectica, Inc. and John Nolan. |
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10.2 |
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Severance Agreement, dated as of October 7, 2015, by and between Selectica, Inc. and John Nolan. |
Exhibit 10.1
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2121 South El Camino Real
San Mateo, California 94403 |
October 7, 2015
Mr. John Nolan
Dear John:
We are pleased to present the following offer of employment. This letter will summarize and confirm the details of our offer for you for the position of Chief Financial Officer of Selectica, Inc. (the “Company”). Your first day working for the Company will be Wednesday, October 7, 2015.
1. Position. Your title will be Chief Financial Officer and you will report to the Office of the Chief Executive Officer (“Office of the CEO”). This is a full-time position. While you render services to the Company, you will not engage in any other employment, consulting or other business activity (whether full-time or part-time) that would create a conflict of interest with the Company. By signing this letter agreement, you confirm to the Company that you have no contractual commitments or other legal obligations that would prohibit you from performing your duties for the Company.
2. Cash Compensation. The Company will pay you a salary at the rate of $250,000 per year, less all appropriate state and federal taxes and withholdings, payable in accordance with the Company’s standard payroll schedule. This salary will be subject to review on an annual basis prior to the anniversary date of your employment. In addition, you will be eligible to be considered for an incentive bonus for each fiscal year of the Company, with your annual target bonus being equal to $75,000, payable on an annual basis after the end of the Company’s fiscal year. The bonus (if any) will be awarded based on objective or subjective criteria to be established by the Office of the CEO within 90 days of your first day working for the Company. Any annual bonus will be paid within 2 1/2 months after the end of the fiscal year to which it relates, but only if you are still employed by the Company at the time of payment.
3. Equity Compensation. You will be granted a stock option to purchase 100,000 shares of the Company’s Common Stock. The stock option will be granted as an inducement grant under the Nasdaq listing rules outside of the Company’s 2015 Equity Incentive Plan (the “EIP”), not intending to qualify as an “incentive stock option” under the Internal Revenue Code of 1986, as amended (the “Code”), with (i) the stock option having an exercise price equal to the fair market value of the Company’s common stock at the close of market on the date of the grant and (ii) the stock option vesting 25% after completing 12 months of continuous service from the date of your first day working for the Company with the remaining balance in monthly installments over the following 36 months of continuous service.
4. Severance Agreement. As part of this offer, the Company is providing a separate Severance Agreement, which is attached hereto as Exhibit A (the “Severance Agreement”).
5. Employee Benefits. As an employee of the Company, you will be eligible to participate in all of the Company-sponsored benefits under the Company's standard employee benefits programs under which you may be eligible, as they may be amended from time to time. In addition, you will be entitled to PTO in accordance with the Company’s PTO policy, as in effect from time to time.
October 7, 2015
Page 2
6. Proprietary Information and Inventions Agreement. You will be required to sign and abide by the Company’s standard Proprietary Information and Inventions Agreement (the “PIIA”) which is attached hereto as Exhibit B.
7. Employment Relationship. Employment with the Company is for no specific period of time. Your employment with the Company is “at will,” meaning that either you or the Company may terminate your employment at any time and for any reason, with or without cause. Any contrary representations that may have been made to you are superseded by this letter agreement. This is the full and complete agreement between you and the Company on this term. Although your job duties, title, compensation and benefits, as well as the Company’s personnel policies and procedures, may change from time to time, the “at will” nature of your employment may only be changed in an express written agreement signed by you and the Chief Executive Officer.
8. Tax Matters.
8.1. Withholding. All forms of compensation referred to in this letter agreement are subject to reduction to reflect applicable withholding and payroll taxes and other deductions required by law.
8.2. Tax Advice. You are encouraged to obtain your own tax advice regarding your compensation from the Company. You agree that the Company does not have a duty to design its compensation policies in a manner that minimizes your tax liabilities, and you will not make any claim against the Company or the Company’s Board of Directors (“the Board”) related to tax liabilities arising from your compensation.
8.3 Code Section 409A. It is intended that this letter agreement will comply with, or be exempt from, Section 409A of the Code and any regulations issued thereunder (collectively “Code Section 409A”). To the extent required by Code Section 409A, if you are a “specified employee” at the time of your “separation from service” (as each term is defined under Code Section 409A) with the Company and all affiliates, any nonqualified deferred compensation (as defined under Code Section 409A) that is payable to you on account of that separation from service will be delayed and paid promptly after the earlier of the date that is six (6) months and one (1) day after the date of such separation from service or the date of your death after such separation from service. In addition, to the extent required to avoid the imposition of additional taxes and penalties under Code Section 409A of the Code, amounts payable under this letter agreement or the Severance Agreement on account of your termination of employment shall only be paid if you experience a “separation from service” as defined in Code Section 409A.
9. Arbitration. In the event of any dispute or claim relating to or arising out of our employment relationship or the termination of that relationship (including, but not limited to, any claims of wrongful termination or age, sex, race, disability or other discrimination), you and the Company agree that all such disputes shall be fully and finally resolved by binding arbitration conducted before a single neutral arbitrator pursuant to the rules for arbitration of employment disputes by the American Arbitration Association (available at www.adr.org or from Human Resources) in Hamilton County, Indiana. The arbitrator shall permit adequate discovery and is empowered to award all remedies otherwise available in a court of competent jurisdiction and any judgment rendered by the arbitrator may be entered by any court of competent jurisdiction. The arbitrator shall issue an award in writing and state the essential findings and conclusions on which the award is based. By executing this letter, you and the Company are both waiving the right to a jury trial with respect to any such disputes. The Company shall bear the costs of the arbitrator, forum and filing fees. Each party shall bear its own respective attorney fees and all other costs, unless otherwise provided by law and awarded by the arbitrator.
October 7, 2015
Page 3
10. Indemnification; D&O Coverage. The Company will provide you with indemnification pursuant to its standard indemnification agreement entered into with its executive officers and directors. In addition, you will be covered as an insured under the Company’s directors and officers liability insurance to the same extent as the Company’s other executive officers and current members of the Board.
11. Interpretation, Amendment and Enforcement. This letter agreement, together with the Severance Agreement and the PIIA, constitute the complete agreement between you and the Company regarding the terms of your employment and supersedes any prior agreements, representations or understandings (whether written, oral or implied) between you and the Company regarding the terms of your employment. This letter agreement may not be amended or modified, except by an express written agreement signed by both you and the Chief Executive Officer. The terms of this letter agreement and the resolution of any disputes as to the meaning, effect, performance or validity of this letter agreement or arising out of, related to, or in any way connected with, this letter agreement, your employment with the Company or any other relationship between you and the Company will be governed by California law, excluding laws relating to conflicts or choice of law.
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October 7, 2015
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You may indicate your agreement with these terms by signing and dating the enclosed duplicate original of this letter agreement and returning it to me.
If you have any questions, please do not hesitate to let me know.
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Very truly yours, |
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SELECTICA, INC. |
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By: |
/s/ Patrick Stakenas |
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Name: |
Patrick Stakenas |
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Title: |
President and Chief Executive
Officer |
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I have read and accept this agreement:
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John Nolan |
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Attachment
Exhibit A: Severance Agreement
Exhibit B: Proprietary Information and Inventions Agreement
Exhibit 10.2
SEVERANCE AGREEMENT
THIS SEVERANCE AGREEMENT (this “Agreement”) is entered into as of October 7, 2015 by and between JOHN NOLAN (the “Employee”) and SELECTICA, INC., a Delaware corporation (the “Company”).
1. TERMINATION BENEFITS.
(a) Qualifying Terminations. Severance benefits shall be provided under this Agreement only if one of the following Paragraphs applies:
(i) Change in Control. The Company is subject to a Change in Control before the Employee’s employment terminates and, within 12 months thereafter, a Separation occurs because either (A) the Company terminates the Employee’s employment for a reason other than Cause, Permanent Disability or death; or (B) the Employee resigns for Good Reason; or
(ii) No Change in Control. Paragraph (i) above does not apply and a Separation occurs because the Company terminates the Employee’s employment for a reason other than Cause, Permanent Disability or death.
(b) Release. Subsection (a) above notwithstanding, severance benefits shall be provided under this Agreement only if the Employee has executed a general release of all known and unknown claims that the Employee may then have against the Company, using a release agreement in a form prepared by, and satisfactory to, the Company that is similar to the form attached hereto as Exhibit A (the “Release”), and has agreed not to prosecute any legal action or other proceeding based on such claims. However, the Employee shall not be required to release any claims that the Employee may have against the Company arising under (i) any indemnification agreement between the Employee and the Company or (ii) any rights to indemnification, advancement of expenses or repayment arising under the Company’s Certificate of Incorporation, the Company’s Bylaws or the indemnification provisions of applicable State statutes, in each case as currently in effect or as subsequently amended. The Company shall deliver the completed Release to the Employee within 10 business days after his Separation. The Employee shall execute and return the Release within the period set forth in Exhibit A (the “Release Deadline”).
(c) Severance Pay. If Subsection (a)(i) above applies, then the Employee shall be entitled to receive severance payments from the Company for the period of twelve months following his Separation. If Subsection (a)(ii) above applies, then the Employee shall be entitled to receive severance payments from the Company for the period of six months following his Separation. (Such period of twelve or six months, as the case may be, is referred to below as the “Continuation Period”). Such severance payments shall be made in installments in accordance with the Company’s standard payroll procedures, shall commence within 30 days after the Release Deadline and, once they commence, shall be retroactive to the date of the Employee’s Separation. Such severance payments shall be equal to the Employee’s base salary at the annual rate in effect when his Separation occurs, prorated to reflect the actual length of the Continuation Period. For purposes of Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), each installment payment under this Subsection (c) is hereby designated as a separate payment.
The preceding paragraph notwithstanding, if the Company determines that the Employee is a “specified employee” under Section 409A(a)(2)(B)(i) of the Code and the regulations thereunder at the time of his Separation, then (i) the severance payments under this Subsection (c), to the extent not exempt from Section 409A of the Code, shall commence during the seventh month after the Employee’s Separation and (ii) the installments that otherwise would have been paid during the first six months following the Employee’s Separation shall be paid in a lump sum when such severance payments commence.
(d) Health Insurance. If Subsection (a) above applies, and if the Employee elects to continue health insurance coverage under the Consolidated Omnibus Budget Reconciliation Act (“COBRA”) for himself and, if applicable, his dependents following his Separation, then the Company shall pay the employer portion of the monthly premium under COBRA for the Employee and, if applicable, his dependents until the earliest of (i) the close of the Continuation Period, (ii) the expiration of the Employee’s continuation coverage under COBRA or (iii) the date when the Employee becomes eligible for substantially equivalent health insurance coverage in connection with new employment or self-employment.
(e) Definition of “Cause.” For purposes of this Agreement, “Cause” shall mean:
(i) An unauthorized use or disclosure by the Employee of the Company’s confidential information or trade secrets, which use or disclosure causes material harm to the Company;
(ii) A material breach by the Employee of any agreement between the Employee and the Company;
(iii) A material failure by the Employee to comply with the Company’s written policies or rules;
(iv) The Employee’s conviction of, or plea of “guilty” or “no contest” to, a felony under the laws of the United States or any State thereof;
(v) The commission of any act of fraud, embezzlement or dishonesty by the Employee;
(vi) The Employee’s gross negligence or intentional misconduct;
(vii) A continuing failure by the Employee to perform assigned duties after receiving written notification of such failure from the Company; or
(viii) A failure by the Employee to cooperate in good faith with a governmental or internal investigation of the Company or its directors, officers or employees, if the Company has requested the Employee’s cooperation.
(f) Definition of “Change in Control.” For purposes of this Agreement, “Change in Control” shall mean:
(i) The consummation of a merger or consolidation of the Company with or into another entity or any other corporate reorganization, if persons who were not stockholders of the Company immediately prior to such merger, consolidation or other reorganization own immediately after such merger, consolidation or other reorganization 50% or more of the voting power of the outstanding securities of each of (A) the continuing or surviving entity and (B) any direct or indirect parent corporation of such continuing or surviving entity;
(ii) The sale, transfer or other disposition of all or substantially all of the Company’s assets;
(iii) A change in the composition of the Company’s Board of Directors (the “Board”), as a result of which fewer than 50% of the incumbent directors are directors who either:
(A) Had been directors of the Company on the date 24 months prior to the date of such change in the composition of the Board (the “Original Directors”); or
(B) Were appointed to the Board, or nominated for election to the Board, with the affirmative votes of at least a majority of the aggregate of (I) the Original Directors who were in office at the time of their appointment or nomination and (II) the directors whose appointment or nomination was previously approved in a manner consistent with this Subparagraph (B); or
(iv) Any transaction as a result of which any person is the “beneficial owner” (as defined in Rule 13d-3 under the Securities Exchange Act of 1934, as amended), directly or indirectly, of securities of the Company representing at least 50% of the total voting power represented by the Company’s then outstanding voting securities. For purposes of this Paragraph (iv), the term “person” shall have the same meaning as when used in Sections 13(d) and 14(d) of such Act but shall exclude (A) a trustee or other fiduciary holding securities under an employee benefit plan of the Company or of a Parent or Subsidiary and (B) a corporation owned directly or indirectly by the stockholders of the Company in substantially the same proportions as their ownership of the common stock of the Company.
A transaction shall not constitute a Change in Control if its sole purpose is to change the state of the Company’s incorporation or to create a holding company that will be owned in substantially the same proportions by the persons who held the Company’s securities immediately before such transaction.
(g) Definition of “Good Reason.” For purposes of this Agreement, “Good Reason” shall mean (i) a change in the Employee’s position with the Company that materially reduces the Employee’s level of responsibility (provided that in connection with a Change in Control, if Employee continues to oversee the business of the Company as a subsidiary or division of an acquiror though his title may change, such change shall not be deemed to be a reduction in responsibility for purposes hereof), (ii) a reduction in the Employee’s annual rate of base salary or (iii) a relocation of the Employee’s place of employment by more than 35 miles, but only if such change, reduction or relocation is effected by the Company without the Employee’s consent. A condition shall not be considered “Good Reason” unless the Employee gives the Company written notice of such condition within 90 days after such condition comes into existence and the Company fails to remedy such condition within 30 days after receiving the Employee’s written notice.
(h) Definition of “Permanent Disability.” For purposes of this Agreement, “Permanent Disability” shall mean the Employee’s inability to perform the essential functions of the Employee’s position, with or without reasonable accommodation, for a period of at least 120 consecutive days because of a physical or mental impairment.
(i) Definition of “Separation.” For purposes of this Agreement, “Separation” shall mean a “separation from service,” as defined in the regulations under Section 409A of the Code.
2. EQUITY ACCELERATION.
If the Company is subject to a Change in Control before the Employee’s employment terminates and the Employee’s employment is terminated without Cause or Employee resigns for Good Reason within the 12 month period after such Change of Control, then all equity awards held by the Employee shall become fully and unconditionally vested, fully exercisable and fully transferable (except for transfer restrictions imposed by law). For purposes of this Section 2, the Employee’s “equity awards” shall consist of (a) shares of the capital stock of the Company (“Stock”), (b) stock options, (c) stock units, performance units or phantom shares whose value is measured by the value of shares of Stock and (d) stock appreciation rights whose value is measured by increases in the value of shares of Stock.
3. PARACHUTE PAYMENTS.
(a) Scope of Limitation. This Section 3 shall apply only if an independent accredited accounting firm selected by the Employee (the “Accounting Firm”) determines that the after-tax value of all Payments (as defined below) to the Employee, taking into account the effect of all federal, state and local income taxes, employment taxes and excise taxes applicable to the Employee (including the excise tax under Section 4999 of the Code), will be greater after the application of this Section 3 than it was before the application of this Section 3. If this Section 3 applies, it shall supersede any contrary provision of this Agreement.
(b) Basic Rule. In the event that the Accounting Firm determines that any payment or transfer by the Company to or for the benefit of the Employee (a “Payment”) would be nondeductible by the Company for federal income tax purposes because of the provisions concerning “excess parachute payments” in Section 280G of the Code, then the aggregate present value of all Payments shall be reduced (but not below zero) to the Reduced Amount. For purposes of this Section 3, the “Reduced Amount” shall be the amount, expressed as a present value, which maximizes the aggregate present value of the Payments without causing any Payment to be nondeductible by the Company because of Section 280G of the Code.
(c) Reduction of Payments. Any reduction under Subsection (b) above shall be applied first to Payments that constitute “deferred compensation” (within the meaning of Section 409A of the Code and the regulations thereunder). If there is more than one such Payment, then such reduction shall be applied on a pro rata basis to all such Payments. Subject to the foregoing rules, the Employee may elect, in the Employee’s sole discretion, which and how much of the Payments shall be eliminated or reduced (as long as after such election the aggregate present value of the Payments equals the Reduced Amount) and shall advise the Company in writing of the Employee’s election within 10 business days of receipt of notice. If no such election is made by the Employee within such 10-day period, then the Company may elect which and how much of the Payments shall be eliminated or reduced (as long as after such election the aggregate present value of the Payments equals the Reduced Amount) and shall notify the Employee promptly of such election. For purposes of this Section 3, a present value shall be determined in accordance with Section 280G(d)(4) of the Code. All determinations made by the Accounting Firm under this Section 3 shall be binding upon the Company and the Employee and shall be made within 10 business days of the date when a Payment becomes payable or transferable. As promptly as practicable following such determination and the elections hereunder, the Company shall pay or transfer to or for the benefit of the Employee such amounts as are then due to the Employee and shall promptly pay or transfer to or for the benefit of the Employee in the future such amounts as become due to the Employee.
(d) Overpayments and Underpayments. As a result of uncertainty in the application of Section 280G of the Code at the time of an initial determination by the Accounting Firm hereunder, it is possible that Payments will have been made by the Company that should not have been made (an “Overpayment”) or that additional Payments that will not have been made by the Company could have been made (an “Underpayment”), consistent in each case with the calculation of the Reduced Amount hereunder. In the event that the Accounting Firm, based upon the assertion of a deficiency by the Internal Revenue Service against the Company or the Employee that the Accounting Firm believes has a high probability of success, determines that an Overpayment has been made, such Overpayment shall be treated for all purposes as a loan to the Employee that the Employee shall repay to the Company, together with interest at the applicable federal rate provided in Section 7872(f)(2) of the Code; provided, however, that no amount shall be payable by the Employee to the Company if and to the extent that such payment would not reduce the amount that is subject to taxation under Section 4999 of the Code. In the event that the Accounting Firm determines that an Underpayment has occurred, such Underpayment shall promptly be paid or transferred by the Company to or for the benefit of the Employee, together with interest at the applicable federal rate provided in Section 7872(f)(2) of the Code.
(e) Related Corporations. For purposes of this Section 3, the term “Company” shall include affiliated corporations to the extent determined by the Accounting Firm in accordance with Section 280G(d)(5) of the Code.
(f) Fees of Accounting Firm and Required Data. The Company shall pay all fees, expenses and other costs associated with retaining the Accounting Firm for the purposes described in this Section 3. The Company shall provide to the Accounting Firm all data in the Company’s possession or under its control that the Accounting Firm reasonably requires for the purposes described in this Section 3.
4. EMPLOYMENT AT WILL.
The Employee’s employment with the Company shall be “at will,” meaning that either the Employee or the Company shall be entitled to terminate the Employee’s employment at any time and for any reason, with or without Cause. Any contrary representations that may have been made to the Employee shall be superseded by this Agreement. This Agreement shall constitute the full and complete agreement between the Employee and the Company on the “at will” nature of the Employee’s employment, which may only be changed in an express written agreement signed by the Employee and a duly authorized officer of the Company.
5. SUCCESSORS.
(a) Company’s Successors. This Agreement shall be binding upon any successor (whether direct or indirect and whether by purchase, lease, merger, consolidation, reorganization, liquidation or otherwise) to all or substantially all of the Company’s business and/or assets. For all purposes under this Agreement, the term “Company” shall include any successor to the Company’s business and/or assets that becomes bound by this Agreement.
(b) Employee’s Successors. This Agreement and all rights of the Employee hereunder shall inure to the benefit of, and be enforceable by, the Employee’s personal or legal representatives, executors, administrators, successors, heirs, distributees, devisees and legatees. This Agreement and all rights and obligations of the Employee hereunder are personal to the Employee and may not be transferred or assigned by the Employee at any time; provided that Employee may assign the Employee’s rights hereunder pursuant to any property settlement resulting from the dissolution of the Employee’s marriage on the condition that such rights shall be conditioned upon Employee’s performance of the Employee’s obligations hereunder as if no such assignment had occurred.
6. ARBITRATION.
(a) Scope of Arbitration Requirement. The parties hereby waive their rights to a trial before a judge or jury and agree to arbitrate before a neutral arbitrator any and all claims or disputes arising out of this Agreement or the Release and any and all claims arising from or relating to Employee’s employment with the Company, including (but not limited to) claims against any current or former employee, director or agent of the Company, claims of wrongful termination, retaliation, discrimination or harassment (based on age, sex, sexual orientation, race, color, national origin, ancestry, marital status, religious creed, physical or mental disability, medical condition or another basis), breach of contract, breach of the covenant of good faith and fair dealing, defamation, invasion of privacy, fraud, misrepresentation, constructive discharge or failure to provide a leave of absence, claims regarding commissions, stock options or bonuses, infliction of emotional distress or unfair business practices, or any tort or tort-like causes of action.
(b) Exceptions. The foregoing notwithstanding, the only claims that may be resolved in any appropriate forum (including courts of law) are (i) claims concerning workers’ compensation benefits and (ii) claims concerning unemployment insurance.
(c) Procedure. The arbitrator’s decision shall be written and shall include the essential findings and conclusions of fact and law that support the decision. The arbitrator’s decision shall be final and binding on both parties, except to the extent applicable law allows for judicial review of arbitration awards. The arbitrator may award any remedies that would otherwise be available to the parties if they were to bring the dispute in court. The arbitration shall be conducted in accordance with the rules for arbitration of employment disputes by the American Arbitration Association; provided, however, that the arbitrator shall allow discovery authorized by the California Arbitration Act or the discovery that the arbitrator deems necessary for the parties to vindicate their respective claims or defenses. The arbitration shall take place in Hamilton County, Indiana or, at the Employee’s option, the County in which the Employee primarily worked with the Company at the time when the arbitrable dispute or claim first arose.
(d) Costs. The parties shall share the costs of arbitration equally, except that the Company shall bear the cost of the arbitrator’s fee and any other type of expense or cost that the Employee would not be required to bear if the Employee were to bring the dispute or claim in court. Both the Company and the Employee shall be responsible for their own attorneys’ fees, and the arbitrator may not award attorneys’ fees unless a statute or contract at issue specifically authorizes such an award.
7. MISCELLANEOUS PROVISIONS.
(a) Notice. Notices and all other communications contemplated by this Agreement shall be in writing and shall be deemed to have been duly given when personally delivered or when mailed by U.S. registered or certified mail, return receipt requested and postage prepaid. In the case of the Employee, mailed notices shall be addressed to the Employee at the home address that the Employee most recently communicated to the Company in writing. In the case of the Company, mailed notices shall be addressed to its corporate headquarters, and all notices shall be directed to the attention of its Secretary.
(b) Entire Agreement. This Agreement supersedes and replaces any prior agreements, representations or understandings, whether written, oral or implied, between the Employee and the Company with respect to the subject matter hereof.
(c) Modifications and Waivers. No provision of this Agreement shall be modified, waived or discharged unless the modification, waiver or discharge is agreed to in writing and signed by the Employee and by an authorized officer of the Company (other than the Employee). No waiver by either party of any breach of, or of compliance with, any condition or provision of this Agreement by the other party shall be considered a waiver of any other condition or provision or of the same condition or provision at another time.
(d) Withholding Taxes. All payments made under this Agreement shall be subject to reduction to reflect taxes or other charges required to be withheld by law.
(e) Choice of Law and Severability. This Agreement shall be interpreted in accordance with the laws of the State of California (except their provisions governing the choice of law). If any provision of this Agreement becomes or is deemed invalid, illegal or unenforceable in any jurisdiction by reason of the scope, extent or duration of its coverage, then such provision shall be deemed amended to the extent necessary to conform to applicable law so as to be valid and enforceable or, if such provision cannot be so amended without materially altering the intention of the parties, then such provision shall be stricken and the remainder of this Agreement shall continue in full force and effect. Should there ever occur any conflict between any provision contained in this Agreement and any present or future statute, law, ordinance or regulation, then the latter shall prevail, but the provision of this Agreement affected thereby shall be curtailed and limited only to the extent necessary to bring it into compliance with applicable law. All the other terms and provisions of this Agreement shall continue in full force and effect without impairment or limitation.
(f) Counterparts. This Agreement may be executed in two counterparts, each of which shall be deemed an original, but both of which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, each of the parties has executed this Agreement, in the case of the Company by its duly authorized officer, as of the day and year first above written.
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SELECTICA, INC |
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/s/ Patrick Stakenas |
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Patrick Stakenas |
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President and Chief Executive
Officer |
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EMPLOYEE: |
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/s/ John Nolan |
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JOHN NOLAN |
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EXHIBIT A
FORM OF RELEASE
SELECTICA, INC.
2121 South El Camino Real
San Mateo, California 94403
, 20
Mr. John Nolan
Dear John:
This letter (the “Agreement”) confirms the agreement between you and Selectica, Inc. (the “Company”) regarding the termination of your employment with the Company.
1. Termination Date. Your employment with the Company will terminate on ________ , 20___ (the “Termination Date”).
2. Effective Date and Rescission. This Release is intended to satisfy the requirements of the Older Workers’ Benefit Protection Act, 29 U.S.C. sec. 626(f). You have up to 21 days after you received this Agreement to review it. You are advised to consult an attorney of your own choosing (at your own expense) before signing this Agreement. Furthermore, you have up to seven days after you signed this Agreement to revoke it. If you wish to revoke this Agreement after signing it, you may do so by delivering a letter of revocation to me. If you do not revoke this Agreement, the eighth day after the date you signed it will be the “Effective Date.” Because of the seven-day revocation period, no part of this Agreement will become effective or enforceable until the eighth day after it is signed. By signing this Release, you acknowledge that you do so freely, knowingly and voluntarily. This Release does not waive or release any rights or claims that you may have under the Age Discrimination in Employment Act (ADEA) that arise after the execution of the Release, or prohibit you from challenging the validity of this Release’s waiver and release of claims under the ADEA.
3. Salary and PTO. On the Termination Date, the Company will pay you $__________ (less all applicable withholding taxes and other deductions). This amount represents all of your salary earned through the Termination Date and all of your accrued but unused PTO. You acknowledge that, if you did not execute this Agreement, you would not be entitled to receive any additional money from the Company. The only payments and benefits that you are entitled to receive from the Company in the future are those specified in this Agreement.
4. Severance Benefits. In consideration of executing this Agreement, you will receive from the Company the severance payments and other benefits described in Section 1 of the Severance Agreement dated as of October 7, 2015, between you and the Company (the “Severance Agreement”).
5. Release of Claims. In consideration of receiving the severance payments and other benefits described in Section 1 of the Severance Agreement, you waive, release and promise never to assert any claims or causes of action, whether or not now known, against the Company or its predecessors, successors or past or present subsidiaries, parent, stockholders, directors, officers, employees, consultants, attorneys, agents, assigns and employee benefit plans with respect to any matter, including (without limitation) any matter related to your employment with the Company or the termination of that employment, including (without limitation) claims to attorneys’ fees or costs, claims of wrongful discharge, constructive discharge, emotional distress, defamation, invasion of privacy, fraud, breach of contract or breach of the covenant of good faith and fair dealing and any claims of discrimination or harassment based on sex, age, race, national origin, disability or any other basis under Title VII of the Civil Rights Act of 1964, the California Fair Employment and Housing Act, the Age Discrimination in Employment Act of 1967, the Americans with Disabilities Act and all other laws and regulations relating to employment. However, this release bars only those claims that arose prior to the execution of this Agreement. Execution of this Agreement does not bar:
(a) Any claim that arises hereafter;
(b) Any claim arising under any indemnification agreement between you and the Company, as amended;
(c) Any claim to indemnification or advancement of expenses arising under the Company’s Certificate of Incorporation, as amended, or the Company’s Bylaws, as amended; or
(d) Any claim to indemnification or advancement of expenses arising under applicable State statutes.
6. Waiver. You expressly waive and release any and all rights and benefits under Section 1542 of the California Civil Code (or any analogous law of any other State), which reads 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.”
7. Promise Not To Sue. You agree that you will never, individually or with any other person, commence, aid in any way (except as required by legal process) or prosecute, or cause or permit to be commenced or prosecuted, any action or other proceeding based on any claim that has been released pursuant to Section 5 above.
8. No Admission. Nothing contained in this Agreement will constitute or be treated as an admission by you or the Company of liability, any wrongdoing or any violation of law.
9. Proprietary Information and Inventions Agreement. At all times in the future, you will remain bound by your Proprietary Information and Inventions Agreement with the Company.
10. Company Property. You represent that you have returned to the Company all property that belongs to the Company, including (without limitation) copies of documents that belong to the Company and files stored on your computer(s) that contain information belonging to the Company.
11. Severability; Modifications. If any term of this Agreement is held to be invalid, void or unenforceable, the remainder of this Agreement will remain in full force and effect and will in no way be affected, and the parties will use their best efforts to find an alternate way to achieve the same result. This Agreement may be modified only in a written document signed by you and a duly authorized officer of the Company.
12. Choice of Law; Arbitration. This Agreement will be construed and interpreted in accordance with the laws of the State of California (other than their choice-of-law provisions). The arbitration requirement described in Section 6 of the Severance Agreement will also apply to this Agreement.
13. Execution. This Agreement may be executed in counterparts, each of which will be considered an original, but all of which together will constitute one agreement. Execution of a facsimile copy will have the same force and effect as execution of an original, and a facsimile signature will be deemed an original and valid signature.
Please indicate your agreement with the above terms by signing below.
SELECTICA, INC.
By:
Name:
Title:
I agree to the terms of this Agreement, and I am voluntarily signing this release of all claims. I acknowledge that I have read and understand this Agreement, and I understand that I cannot pursue any of the claims and rights that I have waived in this Agreement at any time in the future.