Selectica v Versata, et al;DeLChanc 4241-VCN - Trial Transcript - Volume V - 5-1-09
_ SHLTI 1 PAGI:: 1258 _ PAGE 1260
1258
IN THE COORT OF CHANCERY OF THE STATE OF DELAWARE
SELECTICA, INC a D~lawarc
corporation,
plaintiff
v C A No 4241-VCN
VERSATA ENTERPRISES, INC, a
Oelaware corporation, and TRIlOGY
INC , a Delaware corporation
Dofendants
-and-
VERSATA ENTERPRISES INC and
TRILOGY INC,
Countorclaim-Plaintiffs
v
SELECTlCA, INC, JAMES ARNOLD
ALAN B HOWE, LLOYO SEMS, JIM
THANOS and BRENDA ZAWATSKI
Counterclaim-Do fondants
Chancory Courtroom No 12B
Now Castle County Courthouso
wilmington Dolawaro
Friday May 1 2009
9:30 a m
BEFORE: HON JOHN W NOSI·E, Vice Chancollor
TRIAl, TRANSCRIPT - VOLUME V
CHANCERY COURT REPORTERS
500 North King Stroot - Suito 11400
Wilmington, Delaware 19801-3759
(302) 255-0525


_ PAGe 12S9
1 APPEARANCES:
2 GREGORY v, VARAl,LO, ESQ
LISA A SCHMIDT, ESQ
3 JOHN 0, HENDERSHOT, ESQ
ETHAN A SHANER, ESQ
4 SCOTT W PERKINS, ESQ
JILLIAN M GROa, ESQ
5 Richards, Layton' Finger, P,A
-and-
6 JONATHAN S KITCHEN, ESQ
CHRISTIAN H, CEBRIAN, ESQ
of the California Bar
Cox, Castle and Nicholson LLP
8 for plaintiff and Counterclaim Defendants
9 MARTIN P TOLLY, ESQ
MEGAN WARD CASCIO, ESQ
10 LESLIE A, POLIZOTr, ESQ
RYAN D STOTTMANN, ESQ
11 Morris, Nichols Arsht & Tunnell 1,I,P
-and-
12 NOEL M HENSLEY, ESQ
NICHOLAS EVEN ESQ
13 JOHN TANCABEL, ESQ
SARA FRANKFURT GAIL, ESQ
14 of the Texas Bar
Haynes and Boone LLP
15 for Defendants and Counterclaim-plaintiffs
16
17
18
19
20
21
22
23
24
1260
1 THE COURT: Good morning, everyone
2 MS HENSLEY: Good morning
3 THE COURT: Good morning You may
4 call your witness, unless there are housekeeping
5 details
6 MS HENSLEY: We do have one
7 housekeeping matter, just a protocol
8 We received, I think, three
9 demonstrative exhibits from the other side that will
10 pertain to the rebuttal testimony of
11 Patricia Pellervo, that I understand you'll hear later
12 on today
13 Our suggestion is, since these were
14 out of time under the pretrial order, is either they
15 not be allowed, or, if they are, that Elliot Freier,
16 who will testify now, be allowed to call -- be called
17 back for a very limited purpose to discuss whatever it
18 is that Miss Pellervo will testify with respect to
19 those three demonstrative aids
20 MR VARALLO: May I respond, Your
21 Honor?
22 THE COURT: Good morning Yes
23 MR VARALLO: Good morning to you,
24 sir
_PAG!:: 1261
1261
1 A couple of thoughts First of all,
2 as Your Honor had indicated, this trial is being
3 timed, and we have a number of rebuttal witnesses We
4 would like to call four of number, as of right now
5 And we believe that we will need the time this
6 afternoon to do exactly that
7 My friends are not quite out of time,
8 but they have used more time than we have And we
9 would object to having to cut short that opportunity
10 to finish the case as plaintiffs, Your Honor
11 Secondly, yes, these rebuttal slides
12 were presented this morning but, honestly, they were
13 put together late last evening, So we presented them
14 at the first opportunity They're nothing more than
15 demonstratives, Your Honor It's not as though the
16 slides constitute new substantive evidence or new
17 opinions
18 THE COURT: I will allow the use of
19 the demonstratives I will afford Trilogy the
20 opportunity to put its expert witness back on the
21 stand to comment on them And whether folks are out
22 of time or not at the end of the day is something I
23 won't know until we get to near the end of the day
24 MS HENSLEY: Your Honor, we call
Chancery Court Reporters
Selectica v Versata, et al;DeIChanc 4241-VCN - Trial Transcript - Volume V - 5-1-09
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1318 1320
1 remember that?
2 A 		Yes
3 Q 		Mr Brogan, I take it, could have
4 contacted Mr Miller and did not Is that your
5 assumption?
6 A 		That's my understanding, yes
7 Q 	And was Mr Brogan acting for the
8 company? Did he have an obligation in doing a 382
9 study to get that information?
10 A 	I believe so, although the company
11 could have told him that they didn't want him to do
12 it And obviously they're paying him, so he'll do
13 what they tell him to do
14 Q 	Was there any showing that that
15 attempt had been made?
16 A 	Not that I saw
17 Q 	There was some testimony or
18 questioning about fluctuations in value And I think
19 you were shown -- what exhibit is it? --about an
20 article just nOWj right?
21 A 	Right
22 Q 	Okay And as to Selectica, what does
23 that rule apply to?
24 A 	It applies to their pre-IPO period

1 with those purchases
2 Q 	SO that's the only interpretation one
3 could make about listing, because the number adds up
4 to the total shares, is that fair?