exv10w32






Exhibit 10.32




Severance Agreement




          This Agreement is entered into as of September 27, 2006, by and between William
(Bill) Roeschlein (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, either (A) the
Company terminates the Employee’s employment for a reason other than Cause or
Permanent Disability or (B) the Employee resigns for Good Reason; or




          (ii) No Change in Control. Paragraph (i) above does not apply and the Company
terminates the Employee’s employment for a reason other than Cause or Permanent
Disability.



          (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 the
form attached hereto as Exhibit A and without making alterations (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.




          (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 12 months
following the termination of the Employee’s employment. 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 the termination of the Employee’s employment. (Such period of
12 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. Such severance payments shall be equal to the Employee’s base salary at
the
annual rate in effect when the Employee’s employment terminates, prorated to reflect the
actual
length of the Continuation Period.




          The preceding paragraph notwithstanding, the severance payments under this Agreement shall in
no event commence prior to the earliest date permitted by Section 409A(a)(2)




 









 







of the Internal Revenue Code of 1986, as amended (the “Code”), if such Section is applicable. If
the commencement of such severance payments must be delayed, then the deferred installments shall
be paid in a lump sum on the earliest practicable date permitted by Section 409A(a)(2) of the Code.




          (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 the Employee and, if applicable, the Employee’s dependents
following the termination of the Employee’s employment, then the Company shall pay the
employer portion of the monthly premium under COBRA for the Employee and, if applicable,
such 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
receives 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:





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          (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, (ii) a reduction in the Employee’s annual rate of





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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.




          (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.




          2. PARACHUTE PAYMENTS.




          (a) Scope of Limitation. This Section 2 shall apply only if an independent
accounting firm selected by the Employee from among the largest four accounting firms in the
United States (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 2
than it was before the application of this Section 2. If this Section 2 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 2, 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. If the Accounting Firm determines that any
Payment would be nondeductible by the Company because of Section 280G of the Code, then
the Company shall promptly give the Employee notice to that effect and a copy of the detailed
calculation thereof and of the Reduced Amount, and the Employee may then 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 2, 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 2 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




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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 2, 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 2. 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 2.




          3. 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.




          4. 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




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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.




          5. 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 the 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, harassment, 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
findings 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 National Rules for the Resolution of Employment Disputes of the American
Arbitration Association; provided, however, that the arbitrator shall allow the 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
Santa Clara County 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,





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and the arbitrator may not award attorneys’ fees unless a statute or contract at issue specifically
authorizes such an award.




          6. 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.





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          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.



	 	 	 	 	 
	 	
 	 
	 	 	 	 
	 	Selectica, Inc. 

 	 
	 	By  	/s/
Stephen R. Bennion	 
	 	 	Title: CEO 	 





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EXHIBIT A

FORM OF RELEASE




Selectica, Inc.

3 West Plumeria Drive

San Jose, CA 95134




__________ __, 20 __




Mr. William (Bill) Roeschlein




Dear Bill:




          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. 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 Effective Date.




          3. Salary and Vacation Pay. 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 vacation time or 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 September 27, 2006, 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




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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.





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          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 5 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.




	 	 	 	 	 
	 	Very truly yours,



Selectica, Inc.

 	 
	 	By:  	 	 
	 	 	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.




	 	 	 	 
	
 	 	 
	 	 	 
	Signature of                     
                    
                     	 	 
	 	 	 
	Dated: 	 	 






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