Exhibit 10.34
Employment
Agreement
This Agreement is
entered into as of August 21, 2007, by and between
Robert
Jurkowski (the “Employee”) and Selectica, Inc. , a
Delaware corporation (the “Company”).
1.
Duties and Scope of Employment.
(a)
Position . For the term of his employment under this
Agreement (the “Employment”), the Company agrees to
employ the Employee in the position of Chief Executive Officer. The
Employee shall report to the Company’s Board of Directors
(the “Board”).
(b)
Obligations to the Company . During his Employment, the
Employee (i) shall devote his full business efforts and time
to the Company, (ii) shall not engage in any other employment,
consulting or other business activity that would create a conflict
of interest with the Company, (iii) shall not assist any
person or entity in competing with the Company or in preparing to
compete with the Company and (iv) shall comply with the
Company’s policies and rules, as they may be in effect from
time to time. However, the Employee may serve on the boards of
directors of a reasonable number of other corporations, subject to
the Board’s approval.
(c)
No Conflicting Obligations . The Employee represents and
warrants to the Company that he is under no obligations or
commitments, whether contractual or otherwise, that are
inconsistent with his obligations under this Agreement. The
Employee represents and warrants that he will not use or disclose,
in connection with his Employment, any trade secrets or other
proprietary information or intellectual property in which the
Employee or any other person has any right, title or interest and
that his Employment will not infringe or violate the rights of any
other person. The Employee represents and warrants to the Company
that he has returned all property and confidential information
belonging to any prior employer.
2.
Cash and Incentive Compensation.
(a)
Salary . The Company shall pay the Employee as compensation
for his services a base salary at a gross annual rate of not less
than $360,000. Such salary shall be payable in accordance with the
Company’s standard payroll procedures. (The annual
compensation specified in this Subsection (a), together with any
increases in such compensation that the Company may grant from time
to time, is referred to in this Agreement as “Base
Salary.”)
(b)
Incentive Bonuses . The Employee shall be eligible to be
considered for semi-annual incentive bonuses with a target amount
equal to 25% of his Base Salary. Such bonuses (if any) shall be
awarded based on the attainment of strategic objectives by the
Company. Such objectives shall be established by the Compensation
Committee of the Board, and its determinations with respect to such
bonuses shall be final and binding.
(c)
Stock Option . As soon as reasonably practicable on or after
the date of this Agreement, the Company shall grant the Employee
additional options to purchase 600,000 shares of the
Company’s Common Stock (the “Options”). The
Options shall be granted under the Company’s 1999 Equity
Incentive Plan, as amended (the “Plan”). The exercise
price per share of the Options shall be equal to the closing price
per share of the Company’s Common Stock on the date of grant.
The term of the Options shall be 10 years, subject to earlier
expiration in the event of the termination of the Employee’s
Employment. The Options shall become exercisable for one-quarter of
the total number of shares when the Employee completes
12 months of continuous service following the date of this
Agreement and for 1/48 th of the total
number of shares when he completes each month of continuous service
thereafter. In addition, the Options shall immediately become
exercisable for one-half of the remaining unexercisable shares if
the Company is subject to a Change in Control within 12 months
after the date of this Agreement. (Certain terms are defined in
Section 12.) The Options shall immediately become exercisable
for all of the shares if the Company is subject to a Change in
Control more than 12 months after the date of this Agreement.
All shares purchased by exercising the Options shall be fully
vested. The grant of the Options shall be subject to the other
terms and conditions set forth in the Plan and the Company’s
standard form of Stock Option Agreement.
(d)
Restricted Stock Units . As soon as reasonably practicable
on or after the date of this Agreement, the Company shall grant the
Employee 400,000 units representing shares of the Company’s
Common Stock (the “Units”). The Units shall be granted
under the Plan. The Units shall vest based on the attainment of
strategic objectives by the Company. Such objectives shall be
established by the Compensation Committee of the Board, and its
determinations with respect to the vesting of the Units shall be
final and binding. In addition, one-half of the remaining unvested
Units shall immediately vest if the Company is subject to a Change
in Control within 12 months after the date of this Agreement.
All of the Units shall immediately vest if the Company is subject
to a Change in Control more than 12 months after the date of
this Agreement. The grant of the Units shall be subject to the
other terms and conditions set forth in the Plan and the
Company’s form of Stock Unit Agreement.
3.
Vacation and Employee Benefits. During his Employment, the
Employee shall be eligible for paid vacations in accordance with
the Company’s vacation policy, as it may be amended from time
to time. During his Employment, the Employee shall also be eligible
to participate in the employee benefit plans maintained by the
Company, subject in each case to the generally applicable terms and
conditions of the plan in question and to the determinations of any
person or committee administering such plan.
4.
Business Expenses. During his Employment, the Employee shall
be authorized to incur necessary and reasonable travel,
entertainment and other business expenses in connection with his
duties hereunder. The Company shall reimburse the Employee for such
expenses upon presentation of an itemized account and appropriate
supporting documentation, all in accordance with the
Company’s generally applicable policies. The Company shall
also pay, or reimburse the Employee for, his membership fees for
Vistage International, Inc.
5.
Term of Employment.
2
(a)
Termination of Employment . The Company may terminate the
Employee’s Employment at any time and for any reason (or no
reason), and with or without Cause, by giving the Employee notice
in writing. The Employee may terminate his Employment by giving the
Company 30 days’ advance notice in writing. The
Employee’s Employment shall terminate automatically in the
event of his death. The termination of the Employee’s
Employment shall not limit or otherwise affect his obligations
under Section 7.
(b)
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.
(c)
Rights upon Termination . Except as expressly provided in
Section 6, upon the termination of the Employee’s
Employment, the Employee shall only be entitled to the
compensation, benefits and expense reimbursements that the Employee
has earned under this Agreement before the effective date of the
termination. The payments under this Agreement shall fully
discharge all responsibilities of the Company to the
Employee.
6.
Termination Benefits.
(a)
Preconditions . Any other provision of this Agreement
notwithstanding, this Section 6 shall not apply unless the
following requirements are satisfied:
(i) The
Employee has executed a general release of all claims that he may
then have against the Company or persons affiliated with the
Company. The release shall be in a form mutually agreed upon by the
Company and the Employee within 30 days after his Employment
termination date. The Employee shall execute the release within the
period set forth in the form.
(ii)
The Employee has returned all property of the Company in the
Employee’s possession.
(iii)
If requested by the Board, the Employee has resigned as a member of
the Board and as a member of the Boards of Directors of all
subsidiaries of the Company, to the extent applicable.
(b)
Involuntary Termination . If, during the term of this
Agreement, the Employee is subject to an Involuntary Termination,
then the Company shall pay the Employee a severance benefit equal
to his annual Base Salary at the rate in effect at the time of the
termination of Employment (the “Severance Benefit”).
One-half of the Severance Benefit shall be paid in a lump sum
within 10 business days after the termination of Employment, and
the balance of the Severance Benefit shall be paid in equal monthly
installments during the 12-month period following the termination
of his Employment.
3
The
amount of the Severance Benefit shall be reduced by the amount of
any severance pay or pay in lieu of notice that the Employee
receives from the Company under a federal or state statute
(including, without limitation, the Worker Adjustment and
Retraining Notification Act).
If the
Company determines that the Employee is a “specified
employee” under Section 409A(a)(2)(B)(i) of the Internal
Revenue Code of 1986, as amended (the “Code”), and the
regulations thereunder when his Employment terminates, then
(i) payments of the Severance Benefit, to the extent not
exempt from Section 409A of the Code, shall commence on the
earliest practicable date that occurs more than six months after
the Employment termination date and (ii) the payments that
otherwise would have been made during the first six months
followi
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