VOTING AGREEMENT
Exhibit
99.1
This Voting Agreement (the “Agreement”) is made and entered into as of May 6, 2010, by
and among Selectica Inc., a Delaware corporation (the “Company”), and the undersigned stockholder
of the Company (“Holder”).
1. Agreement to Vote Shares. From the date hereof through the termination of this
Agreement in accordance with its terms, at every meeting of the stockholders of the Company called
with respect to any of the following, and at every adjournment thereof, and on every action or
approval by written consent of the stockholders of the Company with respect to any of the
following, Holder shall vote or consent the Shares (as defined below) (or cause the Shares to be
voted or consented) on any matter in the same proportion as all voting securities of the Company
(other than the Shares) are voted on such matter. In addition to the other covenants and
agreements of Holder provided for elsewhere in this Agreement, from the execution of this Agreement
until the termination of this Agreement, Holder shall not enter into any agreement, arrangement or
understanding with any Person (as defined below) to take any action that would be inconsistent with
the voting arrangement set forth in the foregoing sentence or that would otherwise have the effect
of violating the provisions and agreements contained herein. This Agreement is intended to bind
Holder as a stockholder of the Company only with respect to the Shares and only in the manner
expressly provided herein. Except as otherwise set forth in this Section 1, Holder shall not be
restricted from voting in favor of, voting against or abstaining with respect to, any other matter
presented to the stockholders of the Company at a meeting thereof or in any action by written
consent of stockholders.
2. Irrevocable Proxy. Concurrently with the execution of this Agreement, Holder
agrees to deliver to Chief Executive Officer and Chief Financial Officer of the Company a proxy in
the form attached hereto as Exhibit A (the “Proxy”), which shall be irrevocable to
the extent provided in the General Corporation Law of the State of Delaware covering the Shares.
3. Representations, Warranties and Covenants of Holder. Holder hereby represents,
warrants and covenants to the Company that Holder, together with Holder’s Affiliates and Associates
(each term as defined below), as of the date of this Agreement (i) is the beneficial owner of the
shares of Common Stock reported by Holder on Schedule 13D/A filed on the date hereof and (ii) does
not own of record or beneficially any shares of capital stock of the Company other than the shares
of Common Stock reported by Holder on Schedule 13D/A filed on the date hereof. Holder hereby
represents, warrants and covenants to the Company that Holder has the legal capacity, power and
authority to enter into and perform all of Holder’s obligations under this Agreement (including
under the Proxy), and that this Agreement (including the Proxy) has been duly and validly executed
and delivered by Holder and constitutes a valid and binding agreement of Holder, enforceable
against Holder in accordance with its terms, subject to (a) laws of general application relating to
bankruptcy, insolvency and the relief of debtors and (b) rules of law governing specific
performance, injunctive relief and other equitable remedies.
Holder further acknowledges that the Company has, by action of its Board of Directors (or a
committee thereof) on or about April 20, 2010, granted to Holder an exemption covering purchases
from the date hereof through November 1, 2010 from the operation of the Company’s
Amended and Restated Stockholder Rights Plan with respect to Holder’s purchase of up to 20% of the
outstanding shares of Common Stock (the “Exempt Shares”). Holder covenants that, in the event that
Holder (or its Affiliate or Associates) elects to purchase all or a portion of the Exempt Shares to
which they are entitled, all such Exempt Shares shall be purchased no later than November 1, 2010.
To the extent that Holder (or its Affiliates and Associates) purchases any Exempt Shares, Holder
represents, warrants and covenants that (i) it shall make, on a timely basis, all regulatory and
other filings that may be required (including the filing of Forms 13D or 13E) with respect to the
purchase of such Exempt Shares and (ii) its purchase of Exempt Shares will not constitute a “tender
offer” under Regulation 14D of the Securities Exchange Act of 1934, as amended, and shall be
effected in compliance with all applicable laws, including federal and state securities laws.
4. Additional Documents. Holder hereby covenants and agrees to execute and deliver
any additional documents necessary to carry out the purpose and intent of this Agreement.
5. Termination. This Agreement and the Proxy delivered in connection herewith shall
terminate, and shall have no further force or effect, upon the termination hereof by the mutual
consent in writing of the Company and Holder.
6. Definitions.
“Affiliate” and “Associate” shall have the respective meanings ascribed to
such terms in Rule 12b-2 of the General Rules and Regulations under the Securities Exchange Act of
1934, as amended, as in effect on the date hereof; provided, however, that a Person
shall not be deemed to be the Affiliate or Associate of another Person solely because either or
both Persons are or were directors of the Company.
“Common Stock” shall mean the common stock, par value $.0001 per share, of the
Company.
“Person” shall mean any individual, firm, corporation, partnership, limited liability
company, limited liability partnership, trust or other legal entity, group of persons making a
“coordinated acquisition” of shares, and includes any successor (by merger or otherwise) of such
individual or entity.
“Shares” shall mean, with respect to Holder, (i) all shares of Common Stock held
beneficially or of record by Holder (together with Holder’s Affiliates and Associates), in excess
of 15% of the Common Stock outstanding as of the record date of the applicable vote or action by
written consent of the Company’s stockholders and (ii) any shares of capital stock of the Company,
or other securities of the Company having voting power generally, that Holder (together with
Holder’s Affiliates and Associates) purchases or with respect to which Holder otherwise acquires
record or beneficial ownership after the date of this Agreement.
7. Miscellaneous.
(a) Amendments and Waivers. Any term of this Agreement may be amended or waived with
the written consent of the parties or their respective successors and assigns. Any amendment or
waiver effected in accordance with this Section 7(a) shall be binding upon the parties and their
respective successors and assigns.
(b) Governing Law. This Agreement and all acts and transactions pursuant hereto and
the rights and obligations of the parties hereto shall be governed, construed and interpreted in
accordance with the laws of Delaware, without giving effect to principles of conflicts of law.
(c) Counterparts. This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original and all of which together shall constitute one instrument.
(d) Titles and Subtitles. The titles and subtitles used in this Agreement are used
for convenience only and are not to be considered in construing or interpreting this Agreement.
(e) Notices. Any notice required or permitted by this Agreement shall be in writing
and shall be deemed sufficient upon receipt, when delivered personally or by courier, overnight
delivery service or confirmed facsimile, or 72 hours after being deposited in the regular mail as
certified or registered mail (airmail if sent internationally) with postage prepaid, if such notice
is addressed to the party to be notified at such party’s address or facsimile number as set forth
below, or as subsequently modified by written notice.
(f) Severability. If one or more provisions of this Agreement are held to be
unenforceable under applicable law, the parties agree to renegotiate such provision in good faith,
in order to maintain the economic position enjoyed by each party as close as possible to that under
the provision rendered unenforceable. In the event that the parties cannot reach a mutually
agreeable and enforceable replacement for such provision, then (i) such provision shall be excluded
from this Agreement, (ii) the balance of the Agreement shall be interpreted as if such provision
were so excluded, and (iii) the balance of the Agreement shall be enforceable in accordance with
its terms.
(g) Specific Performance. Each of the parties hereto recognizes and acknowledges that
a breach of any covenants or agreements contained in this Agreement will cause the Company to
sustain damages for which they would not have an adequate remedy at law for money damages, and
therefore each of the parties hereto agrees that in the event of any such breach the Company shall
be entitled to the remedy of specific performance of such covenants and agreements and injunctive
and other equitable relief in addition to any other remedy to which it may be entitled, at law or
in equity.
[SIGNATURE PAGE FOLLOWS]
The parties have caused this Agreement to be duly executed on the date first above written.
| SELECTICA INC. | ||||||
| By: Name: |
/s/ Xxxx X. Xxxxxx
|
|||||
| Title: | CFO | |||||
| Address: | Selectica Inc. | |||||
| 0000 Xxxxxxxxxx Xxxxx, | ||||||
| Xxx Xxxx, XX 00000 | ||||||
| HOLDER | ||||||
| By: Name: |
/s/ Xxxxx X. Xxxxxx, III
|
|||||
| Holder’s Address for Notice: | ||||||
| 0000 Xxxxxx Xxxxx, | ||||||
| Xxxxxx, XX 00000 | ||||||
The undersigned stockholder of Selectica Inc., a Delaware corporation (the “Company”),
hereby irrevocably (to the full extent permitted by the General Corporation Law of the State of
Delaware) appoints the Chief Executive Officer and Chief Financial Officer of the Company, and each
of them, as the sole and exclusive proxies of the undersigned, with full power of substitution and
resubstitution, to vote and exercise all voting and related rights (to the full extent that the
undersigned is entitled to do so) with respect to the Shares (as defined in the Voting Agreement,
dated as of May 6, 2010 (the “Voting Agreement”)), by and among the Company and the Holder party
thereto) in accordance with the terms of this Proxy. Upon the undersigned’s execution of this
Proxy, any and all prior proxies given by the undersigned with respect to any Shares, are hereby
revoked and the undersigned agrees not to grant any subsequent proxies with respect to the Shares
until the termination of the Voting Agreement.
This Proxy is coupled with an interest, is irrevocable (to the extent permitted by the General
Corporation Law of the State of Delaware), is granted pursuant to the Voting Agreement and is
granted in exchange for valid consideration.
The proxies named above, and each of them, are hereby authorized and empowered by the
undersigned, at any time prior to the termination of the Voting Agreement, to act as the
undersigned’s proxy to vote the Shares, and to exercise all voting rights of the undersigned with
respect to the Shares (including, without limitation, the power to execute and deliver written
consents pursuant to the General Corporation Law of the State of Delaware), at every annual,
special, adjourned or postponed meeting of the stockholders of the Company and in every written
consent in lieu of such meeting in the manner provided in the Voting Agreement.
Any obligation of the undersigned hereunder shall be binding upon the successors and assigns
of the undersigned.
| By: | /s/ Xxxxx X. Xxxxxx, III | |||
| Xxxxx X. Xxxxxx, III | ||||
Dated: May 6, 2010
