Exhibit 10.43
SETTLEMENT, RELEASE AND
LICENSE AGREEMENT
THIS SETTLEMENT, RELEASE AND LICENSE
AGREEMENT (“Agreement”) is entered into as of this 5th
day of October, 2007 (the “Effective Date”), between
Versata Software Inc., a corporation f/k/a Trilogy Software, Inc.
existing under the laws of Delaware with its principal place of
business at 5001 Plaza on the Lake, Austin, Texas 78746, and
Versata Development Group, Inc., corporation existing under the
laws of Delaware with its principal place of business at 5001 Plaza
on the Lake, Austin, Texas 78746, on the one hand (which together
with their Affiliates and their permitted successors and assigns
are collectively referred to herein as “Versata”); and
Selectica, Inc., a corporation existing under the laws of Delaware
with its principal place of business at 1740 Technology Drive, San
Jose, California 95110 (which together with its Affiliates and its
permitted successors and assigns is collectively referred to herein
as “Selectica”), on the other hand.
WITNESSETH
WHEREAS, Versata and Selectica are engaged in a lawsuit,
styled Versata Software Inc., et al. v. Selectica, Inc.,
Civil Action No. 2:06CV444, pending in the United States
District Court for the Eastern District of Texas, Marshall Division
(the “Civil Action”);
WHEREAS, Versata is the owner of certain patents asserted
in the Civil Action, as listed in Exhibit A hereto;
WHEREAS, Selectica desires a license to certain patents,
as described herein;
WHEREAS, the Parties desire to exchange mutual general
releases by which each Party releases any and all claims, whether
known or unknown, against the other Party;
WHEREAS, Selectica acknowledges the validity and
enforceability of the Versata Patents asserted in the Civil Action
but otherwise denies the claims made by Versata in the Civil Action
(except for any allegations expressly admitted by Selectica
therein), and Versata denies the counterclaims made by Selectica in
the Civil Action (except for any allegations expressly admitted by
Versata therein); and
WHEREAS, each of Versata and Selectica, in contemplation
of the uncertainties of the disputed Civil Action, respectively
desires to compromise and settle the claims or counterclaims
alleged in the Civil Action.
NOW, THEREFORE,
in consideration of the mutual
promises and obligations recited herein and other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, Versata and Selectica agree as follows:
1. DEFINITIONS.
The following terms used in this
Agreement shall have the meanings set forth below:
1.1 An “Affiliate” of, or Entity
“Affiliated” with, a specified Entity, is an Entity
that directly, or indirectly through one or more intermediaries,
Controls or is Controlled by, or is under common Control with, the
Entity specified. In the case of Versata, the term
“Affiliate” includes, without limitation, Trilogy,
Inc., Trilogy Capital Holdings Corporation, Versata Enterprises,
Inc. and Trilogy Enterprises Inc.
1.2 “Agreement” means this Settlement,
Release and License Agreement.
1.3 “Control” and its derivative terms
mean, with reference to a specified Entity, the ownership, directly
or indirectly, of more than fifty percent (50%) of the voting
stock or other voting or managerial equity interests in such Entity
or the possession, directly or indirectly, of the power to direct
or cause the direction of the management and policies of such
Entity, whether through ownership of voting securities, by contract
or otherwise.
1.4 “Covered Fields” shall mean the
fields of Configuration, Pricing, Quoting, and Contract Management,
including without limitation (i) the selection, configuration,
pricing, and/or fulfillment of products and/or services and
(ii) the management of procurement, sales, revenue, leasing
and/or intellectual property contracts.
1.5 “Entity” means an individual, a
corporation, a partnership, an association, a joint-stock company,
a trust, or any other incorporated or unincorporated business
organization.
1.6 “Infringement” shall mean direct and
indirect infringement and infringement under the doctrine of
equivalents in any jurisdiction worldwide.
1.7 “Licensee Parties” shall mean, with
reference to a Party, the customers, licensees, sublicensees,
buyers, vendors, users, distributors, developers, resellers,
original equipment manufacturers, original design manufacturers,
value-added resellers, suppliers, importers, exporters, retailers,
contractors, contract manufacturers, consultants and replicators of
products or other items of such Party, but only with respect to and
to the extent of such parties’ use or distribution of the
products or services of a Party to this Agreement.
1.8 “Patents” shall mean all classes or
types of patents and patent applications (along with patents
issuing thereon) in any jurisdiction worldwide, including all
provisionals, substitutes, renewals, continuations,
continuations-in-part, divisionals, foreign counterparts, reissues,
oppositions, continued examinations, reexaminations and extensions
of any of the foregoing.
1.9 “Parties” means Versata and
Selectica, and a “Party” means either of
them.
1.10 “Payment Cap” means $7,500,000
(seven million five-hundred thousand US dollars).
1.11 “Purchase,” as used herein, means
the sale of the entire business or a portion of the business, of
either Party to a purchaser that is not an Affiliate of such Party
(a “Purchaser”).
1.12 “Purchaser Products,” as used
herein, means (i) the services provided or products existing,
manufactured, sold, offered for sale, leased, licensed, or brokered
by a Purchaser or its Affiliates prior to or as of the date of a
Purchase; and/or (ii) the evolution of such Purchaser’s
(or its Affiliates’) prior or existing products or services
(as described in subpart (i) of this Section) after a
Purchase.
1.13 The “Releases” refer to the releases
described in Sections 4.1 and 4.2.
1.14 “Reporting Quarter” shall mean the
three month period corresponding to Selectica’s fiscal
quarter, currently
March 31, June 30, September 30 and
December 31.
1.15 “Selectica CPQ Revenue” shall mean
all license, maintenance and consulting fees received by Selectica
in the field of configuration, pricing and quoting, but excluding
any Versata Customer CPQ Revenue. For clarity, the Selectica CPQ
Revenue includes, but is not limited to, all maintenance, license
and consulting fees received by Selectica following the Effective
Date from its existing and future customer base (other than any
Versata Customer as to which Versata Customer CPQ Revenue is
realized by Selectica), regardless of when the applicable license,
consulting and maintenance agreements with such customers became
effective.
1.16 “Selectica Patents” as used herein,
shall mean (i) all patents, patent applications, and
provisional patent applications owned by, assigned to, or otherwise
assertable by, or licensed to, Selectica as of the Effective Date
(and patents issuing thereon); provided that, in the case of any
patents, patent applications, or provisional patent applications
that are licensed to Selectica by a third party, such patents,
patent applications, and provisional patent applications shall be
included in the definition of “Selectica Patents” only
if Selectica has the right to grant sublicenses thereunder of the
scope specified in Section 3.2 without triggering any royalty
or other payment obligation to the licensor thereof; (ii) all
patents, patent applications, and provisional patent applications
filed by a person other than Selectica or one of its Affiliates (or
solely by one or more employees of any of the foregoing), and
patents issuing thereon, whether filed before or after the
Effective Date, that were assigned or transferred to Selectica or
any such Affiliate following the Effective Date; (iii) patent
applications and provisional patent applications filed by Selectica
or any of its Affiliates (and patents issuing thereon) at or after
the Effective Date that have an effective filing date prior to the
third anniversary of the Effective Date; and (iv) all parents,
provisionals, substitutes, reissues, renewals, continuations,
continuations-in-part, divisionals, foreign counterparts,
oppositions, continued examinations, reexaminations and extensions
of any of such patents, patent applications, and provisional patent
applications to which reference is made in clause (i), (ii) or
(iii) above owned by, filed by, assigned to or otherwise
assertable by Selectica or any of its Affiliates, or successors in
interest at any time (i.e. as of, prior to, or after the Effective
Date), whether filed before, on or after the Effective Date (and
patents issuing thereon).
1.17 “Selectica Products” shall mean
(i) as of a particular time, any past or then current product,
process, or service existing, manufactured, sold, offered for sale,
leased, licensed, or brokered by Selectica and (ii) the
evolution of such products, processes, and services in the future,
excluding any portion of any product, process, or service both
(a) that was not developed and designed by Selectica or
developed and designed solely for the benefit of and under the
direction of Selectica and additionally (b) in which Selectica
does not have an unrestricted, royalty-free ownership or license
right. All Selectica Products are limited solely to the Covered
Fields.
1.18 “VDG” means Versata Development
Group, Inc., a corporation existing under the laws of Delaware with
its principal place of business at 5001 Plaza on the Lake, Austin,
Texas 78745.
1.19 “Versata Customer” shall mean any
customer of Versata that is not a configuration, pricing or quote
customer of Selectica as of the time Versata provides Selectica
with an Introduction Notice with respect to such customer in
accordance with the definition of “Versata Customer CPQ
Revenue”.
1.20 “Versata Customer CPQ Revenue” shall
mean all license, maintenance and consulting fees received by
Selectica in connection with new licenses or service sales after
the Effective Date related to its configuration, pricing and
quoting products (including successor configuration, pricing and
quote products thereto) to a Versata Customer and to whom Versata
has made an introduction after the Effective Date. For the purposes
of this Agreement, an “introduction” shall be deemed to
have been made when; (i) Versata’s CEO or General
Counsel, at Versata’s sole discretion, has notified Selectica
in writing that a specific Versata Customer introduction may be
made (the “Introduction Notice”) pursuant to this
Agreement (as of the date of this Agreement, no such notices have
been provided by Versata to Selectica); and (ii) subsequent to
an Introduction Notice and at the request of Selectica, a written,
telephonic, or in-person introduction is initiated by Versata
between Selectica and the applicable Versata Customer.
1.21 “Versata Patents,” as used herein,
means (i) all patents, patent applications, and provisional
patent applications owned by, assigned to, or otherwise assertable
by, or licensed to, Versata as of the Effective Date (and patents
issuing thereon); provided that, in the case of any patents, patent
applications, or provisional patent applications that are licensed
to Versata by a third party, such patents, patent applications, and
provisional patent applications shall be included in the definition
of “Versata Patents” only if Versata has the right to
grant sublicenses thereunder of the scope specified in
Section 3.1 without triggering any royalty or other payment
obligation to the licensor thereof; (ii) all patents, patent
applications, and provisional patent applications filed by a person
other than Versata or one of its Affiliates (or solely by one or
more employees of any of the foregoing), and patents issuing
thereon, whether filed before or after the Effective Date, that
were assigned or transferred to Versata or any such
Affiliate following the Effective Date;
(iii) patent applications and provisional patent applications
filed by the Versata or any of its Affiliates (and patents issuing
thereon) at or after the Effective Date that have an effective
filing date prior to the third anniversary of the Effective Date;
and (iv) all parents, provisionals, substitutes, reissues,
renewals, continuations, continuations-in-part, divisionals,
foreign counterparts, oppositions, continued examinations,
reexaminations and extensions of any of such patents, patent
applications, and provisional patent applications to which
reference is made in clause (i), (ii) or (iii) above
owned by, filed by, assigned to or otherwise assertable by Versata
or any of its Affiliates, or successors in interest at any time (
i.e. as of, prior to, or after the Effective Date), whether
filed before, on or after the Effective Date (and patents issuing
thereon).
1.22 “Versata Products” shall mean (i),
as of a particular time, any past or then current product, process,
or service existing, manufactured, sold, offered for sale, leased,
licensed, or brokered by Versata; and (ii) the evolution of
such products, processes, and services in the future, excluding any
portion of any product, process, or service both (a) that was
not developed and designed by Versata or developed and designed
solely for the benefit of and under the direction of Versata and
additionally (b) in which Versata does not have an
unrestricted, royalty-free ownership or license right.
2. COVENANT NOT TO
SUE
2.1 Versata’s Covenant not
to Sue Selectica. Upon
Selectica’s payment of the Lump Sum Amount, Versata for
itself and all of its predecessors, officers, directors, partners,
employees, attorneys, successors, and assigns (the “
Versata Covenanting Parties ”) hereby covenant not to
institute, prosecute or otherwise pursue any suit, action, or claim
of any kind (including, without limitation, seeking an injunction),
whether known or unknown, against: (i) Selectica, arising
from, based upon, or relating to any past, present or future use,
infringement, misappropriation, or conversion of any Versata
Patents, provided such use, infringement, misappropriation, or
conversion occurred within the Covered Fields; and/or (ii) any
of Selectica’s Licensee Parties arising from or based upon
any past or future use or infringement of such Patents arising out
of such Licensee Parties’ use or distribution of a Selectica
Product covered by any claim of the Versata Patents in connection
therewith, provided such use or infringement occurs within the
Covered Fields.
2.2 Selectica’s Covenant
not to Sue Versata. Upon
Selectica’s payment of the Lump Sum Amount, Selectica, for
itself and all of its predecessors, officers, directors, partners,
employees, attorneys, successors, and assigns (the “
Selectica Covenanting Parties ”) hereby covenant not
to institute, prosecute or otherwise pursue any suit, action, or
claim of any kind (including, without limitation, seeking an
injunction), whether known or unknown, against: (i) Versata,
arising from, based upon, or relating to any past, present or
future use, infringement or conversion of the Selectica Patents,
and/or (ii) any of Versata’s Licensee Parties arising
from or based upon any past or future use, infringement or
conversion of such Patents arising out of such Licensee
Parties’ use or distribution of a Versata Product covered by
any claim of the Selectica Patents in connection
therewith.
3. LICENSE GRANTS
3.1 Versata’s Grant of
Nonexclusive License to Selectica. Subject to the terms and conditions contained in
this Agreement and effective upon payment of the Lump Sum Amount,
Versata hereby grants to Selectica a fully paid-up, irrevocable
(except as specifically provided herein), nonexclusive,
nontransferable (except as set forth in Section 6.1 below),
worldwide license under the Versata Patents to make, use, sell,
develop, publish, distribute, lease, license, export, import, have
made, offer to sell or otherwise transfer any product or service of
Selectica covered by any claim of the Versata Patents that is
within the Covered Fields, excluding any portion of any product,
process, or service both (i) that was not developed and
designed by Selectica or developed and designed solely for the
benefit of and under the direction of Selectica and additionally
(ii) in which Selectica does not have an unrestricted,
royalty-free ownership or license right. Versata shall have no
obligation hereunder to institute any action or suit against third
parties for infringement of any of the Versata Patents or to defend
any action or suit brought by a third party which challenges or
concerns the validity of any of the Versata Patents. Selectica
shall have no right to institute any action or suit against third
parties for infringement of any of the Versata Patents. Versata is
not required to maintain the Versata Patents in force. Versata
provides this license to the Versata Patents to Selectica AS IS,
and without warranty of any kind. Versata agrees that the claims of
the Versata Patents shall be deemed to be fully exhausted with
respect to each product or service provided by Selectica to a
Licensee Party of Selectica that is covered by the license granted
in this Section 3.1 and that such license extends to each such
Licensee Party’s use or distribution of such product or
service of Selectica.
3.2 Selectica’s Grant of
Nonexclusive License to Versata. Subject to the terms and conditions contained in
this Agreement and effective upon payment of the Lump Sum Amount,
Selectica hereby grants to Versata a fully paid-up, irrevocable
(except as specifically provided herein), nonexclusive,
nontransferable (except as set forth in Section 6.1 below),
worldwide license under the Selectica Patents to make, use, sell,
develop, publish, distribute, lease, license, export, import, have
made, offer to sell or otherwise transfer any product or service of
Versata covered by any claim of the Selectica Patents, excluding
any portion of any product, process, or service that both
(i) that was not developed and designed by Versata or
developed and designed solely for the benefit of and under the
direction of Versata and additionally (ii) in which Versata
does not have an unrestricted, royalty-free ownership or license
right. Selectica shall have no obligation hereunder to institute
any action or suit against third parties for infringement of any of
the Selectica Patents or to defend any action or suit brought by a
third party which challenges or concerns the validity of any of the
Selectica Patents. Versata shall have no right to institute any
action or suit against third parties for infringement of any of the
Selectica Patents. Selectica is not required to maintain the
Selectica Patents in force. Selectica provides this license to the
Selectica Patents to Versata AS IS, and without warranty of any
kind. Selectica agrees that the claims of the Selectica Patents
shall be deemed to be fully exhausted with respect to each product
or service provided by Versata to a Licensee Party of Versata that
is covered by the license granted in this Section 3.2 and that
such license extends to each such Licensee Party’s use or
distribution of such product or service of Versata.
3.3 Validity of Licensed
Patents.
(a) Selectica stipulates and agrees
that the Versata Patents asserted in the Civil Action are valid and
enforceable in full and further agrees not to challenge the
validity or enforceability of any of the Versata Patents or to
affirmatively or intentionally assist any other party in any
challenge to the validity or enforceability of such Versata Patents
(except that Selectica shall not be prohibited from taking any
actions reasonably required in order to respond to legal process or
discovery or to comply with any court order or other applicable
laws or regulations).
(b) Versata agrees not to challenge
the validity or enforceability of any of the Selectica Patents or
to affirmatively or intentionally assist any other party in any
challenge to the validity or enforceability of any Selectica
Patents (except that Versata shall not be prohibited from taking
any actions reasonably required in order to respond to legal
process or discovery or to comply with any court order or other
applicable laws or regulations).
4. MUTUAL GENERAL RELEASES AND
DISMISSAL
4.1 General Release by
Versata. Upon receipt of
the Lump Sum Payment, Versata, on behalf of itself and its
Affiliates (including without limitation Joseph A. Liemandt,
Trilogy, Inc., Trilogy Capital Holdings Corporation, Versata
Enterprises, Inc. and Trilogy Enterprises Inc.), principals,
officers, directors, employees, agents, successors and assigns as
of the Effective Date, shall and does hereby release and forever
discharge Selectica and any parent, subsidiary, or other Affiliated
or related corporations or entities, and each of their respective
current and former officers, directors, agents, employees,
representatives, and attorneys (collectively the “Selectica
Released Parties”) from any and all claims, actions, causes
of action, suits, damages, duties, rights, obligations,
liabilities, adjustments, responsibilities, judgments and demands,
known or unknown, at law or in equity, of whatever character in any
way that Versata (including its Affiliates) may have against any of
the Selectica Released Parties, for any act, omission, reason or
event occurring prior to the Effective Date, including, but not
limited to, any of the foregoing relating to, based upon, or
arising out of, the Lawsuit, any act of past or present
Infringement, misappropriation or other violation of any Versata
Patent or any trade secret or copyright owned or controlled by
Versata prior to or as of the Effective Date, and any claim that
would have been within the scope of the license or covenants not to
sue granted by Versata in Section 3.1, if occurring after the
Effective Date. This release attaches to and is transferred with
each product and service provided by Selectica to any Selectica
Licensee Party prior to the Effective Date (collectively, the
“ Released Selectica Items ”). Versata, on
behalf of itself and each other Versata Covenanting Party,
covenants not to sue Selectica and each of the Licensee Parties of
Selectica on account of any Released Selectica Items. Each Licensee
Party of Selectica is intended to be and is a third-party
beneficiary of this release, and has standing to enforce the terms
of this release without joinder of any other such Licensee Party or
Selectica. Nothing in this release shall discharge or otherwise
affect the rights, duties and obligations created in this
Agreement.
4.2 General Release by
Selectica. Selectica, on
behalf of itself and its Affiliates, principals, officers,
directors, employees, agents, successors and assigns as of the
Effective Date, shall and does hereby release and forever discharge
Versata and any parent, subsidiary, or other Affiliated or related
corporations or entities, and each of their respective current and
former officers, directors, agents, employees, representatives, and
attorneys (collectively the “Versata Released Parties”)
from any and all claims, actions, causes of action, suits, damages,
duties, rights, obligations, liabilities, adjustments,
responsibilities, judgments and demands, known or unknown, at law
or in equity, of whatever character in any way that Selectica
(including its Affiliates) may have against any of the Released
Versata Parties, for any act, omission, reason or event occurring
prior to the Effective Date, including, but not limited to, any of
the forgoing relating to, based on, or arising out of the Lawsuit,
any act of past or present Infringement, misappropriation or other
violation of any Selectica Patent or any trade secret or copyright
owned or controlled by Selectica prior to or as of the Effective
Date, and any claim that would have been within the scope of the
license or covenants not to sue granted by Selectica in
Section 3.2, if occurring after the Effective Date. This
release attaches to and is transferred with each product or service
provided by Versata to any Versata Licensee Party prior to the
Effective Date (collectively, the “ Released Versata
Items ”). Selectica, on behalf of itself and each other
Selectica Covenanting Party, hereby covenants not to sue Versata or
any Licensee Party of Versata on account of any Released Versata
Items. Each Licensee Party of Versata is intended to be and is a
third-party beneficiary of this release, and has standing to
enforce this release without joinder of any other Licensee Party of
Versata. Nothing in this release shall discharge or otherwise
affect the rights, duties and obligations created in this
Agreement.
4.3 Dismissal of the Civil
Action. In connection
with the execution of this Agreement, Versata shall direct its
counsel to execute and deliver by hand delivery or overnight
courier to Selectica’s local counsel Elizabeth L. DeRieux at
Brown McCarrol a Stipulation of Dismissal pursuant to F.R.C.P.
41(a) in the form attached here as Exhibit B (the
“Dismissal”), dismissing with prejudice all claims and
counterclaims made therein and specifying that all costs incurred
therein (including attorneys’ and expert fees and expenses)
shall be borne solely by the Party incurring such costs. Each of
the Parties shall bear its own costs with regard to the Lawsuit,
such filings, and this Agreement. No Party shall file the Dismissal
until Selectica has completed the transfer of the Lump Sum Amount
to Versata in accordance with Section 5.2(a) of this
Agreement. Following Selectica’s receipt of confirmation that
Versata has received the wire transfer of the Lump Sum Amount in
accordance with Section 5.2(a) of this Agreement and that such
funds have been credited to Versata, Selectica shall then (and only
then) be permitted to file Dismissal in the Civil Action. Versata
shall provide Selectica and its counsel electronic and telephonic
confirmation of the crediting of such funds within four
(4) hours of such crediting, provided that Selectica notifies
Lance Jones (512-874-3167 / lance.jones@trilogy.com), Sean Fallon
(512-874-4021 / sean.fallon@trilogy.com), and Scott Cole
(512-692-8705 / scole@mckoolsmith.com) that the wire has been sent.
Such Dismissal shall not be operative and may, under no
circumstances be filed, except in accordance with this
Section 4.3. If Selectica files the Dismissal in violation of
the provisions of this Section 4.3, then any dispute relating
thereto shall be resolved in the Court where the Civil Action is
pending. The Parties agree that the United States District Court
for the Eastern District of Texas, Marshall Division shall have
sole and exclusive
jurisdiction over an action for violation of
this Section 4.3, and Selectica submits to the jurisdiction of
the Eastern District of Texas and consents to venue in such
District for such purposes. Selectica further covenants not to
initiate any action (for declaratory judgment or otherwise)
relating to any dispute regarding this Section 4.3 in any
venue or jurisdiction other than the Court in which the Civil
Action is pending as of the Effective Date.
4.4 Waiver of Certain Statutory
Provisions. Versata and
Selectica understand the significance of and, as further
consideration for this Agreement, expressly waive any right or
benefit that may be available under Section 1542 of the
California Civil Code or any similar laws. Section 1542 of the
California Civil Code provides:
A general release does not extend to
claims which the creditor does not know or suspect to exist in his
favor at the time of executing the release, which if known by him
must have materially affected his settlement with the
debtor.
4.5 Agreement Obligations not
Released. The releases
contained in sections 4.1 and 4.2 do not release any Party or its
Affiliates from its respective obligations under this Agreement or
the protective order entered in the lawsuit in the United States
District Court for the Eastern District of Texas, captioned
Trilogy Software Inc., et al. v. Selectica, Inc., Civil
Action No. 2-04-CV-160 TJW, nor do such releases prevent any
Party or its Affiliates from enforcing the terms and conditions of
this Agreement against any other Party or its
Affiliates.
5. SETTLEMENT
CONSIDERATION
5.1 Cash Settlement
Amount. Versata and
Selectica agree that in exchange for the License and the settlement
of the Civil Action, Selectica shall make non-refundable payments
of Seventeen Million, Five Hundred Thousand U.S. Dollars
($17,500,000.00) (the aggregate amount of such payments being the
“Cash Settlement Amount”), when and as provided in
Section 5.2.
5.2 Cash Settlement
Amount. The Cash
Settlement Amount will consist of the following
components:
(a) A lump-sum payment of Ten
Million Dollars in United States currency ($10,000,000.00 US) (the
“Lump Sum Amount”), which shall be paid to Versata
within five (5) business days after the date of execution of
this Agreement.
(b) Subject to the Payment Cap as
set forth in Section 5.2(d) and the minimum quarterly payment
obligation set forth in Section 5.3, for each Reporting
Quarter beginning with the Reporting Quarter ending
December 31, 2007, Selectica shall owe to Versata a periodic
payment (hereinafter “Periodic Payment”) equal to ten
percent (10%) of the Selectica CPQ Revenue for that quarter.
Each Periodic Payment shall be due within ten (10) business
days following Selectica’s public release of its financial
results for such Reporting Quarter but no later than forty-five
(45) days following the last day of such Reporting
Quarter.
(c) Subject to the Payment Cap as
set forth in Section 5.2(d) and the minimum quarterly payment
obligation set forth in Section 5.3, for each Reporting
Quarter beginning with the Reporting Quarter ending
December 31, 2007, Selectica shall owe to Versata a payment
(hereinafter “Versata Customer Joint Sales Payment”)
equal to fifty percent (50%) of the Versata Customer CPQ
Revenue for that quarter. Each Versata Customer Joint Sales Payment
shall be due within ten (10) business days following
Selectica’s public release of its financial results for such
Reporting Quarter.
(d) Selectica shall have no further
obligation to make any Periodic Payments or Versata Customer Joint
Sales Payments at such time as the aggregate amount of Periodic
Payments and Versata Customer Joint Sales Payments (including any
minimum quarterly payments made pursuant to Section 5.3)
equals the Payment Cap. If the aggregate amount of Periodic
Payments and Versata Customer Joint Sales Payments paid by
Selectica to Versata (including any minimum quarterly payments made
pursuant to Section 5.3) exceeds the Payment Cap at any time,
Versata shall promptly refund to Selectica the amount of the
Periodic Payments or Versata Customer Joint Sales Payments made by
Selectica (including any minim
