SCIQUEST, INC. AMENDED AND RESTATED SUBSCRIPTION AGREEMENT
Exhibit 10.11
SCIQUEST, INC.
AMENDED AND RESTATED SUBSCRIPTION AGREEMENT
SciQuest, Inc.
0000 Xxxxxx Xxxxxxx, Xxxxx 000
Xxxx, XX 00000
0000 Xxxxxx Xxxxxxx, Xxxxx 000
Xxxx, XX 00000
Ladies and Gentlemen:
1. Subscription
for Shares. Xxxxxx Xxxxxx (the “Subscriber”) hereby tenders this
Amended and Restated Subscription Agreement (this
“Agreement”) and irrevocably subscribes for and
agrees to purchase 25,025 shares of Common Stock, $0.001 par value per share (the “Shares”), of
SciQuest, Inc., a Delaware corporation (the “Company”), and has paid therefor an aggregate purchase
price of $25,525.50 for the Shares (the “Purchase
Price”) by (i) check or (ii) bank wire transfer
of immediately available funds to an account designated in writing by the Company. The Shares are
being issued pursuant to the Company’s 2004 Stock Incentive Plan (the “Plan”), and shall be subject
to the terms and conditions contained in this Agreement and the Plan, including without limitation
the right of repurchase as set forth in this Agreement.
2. Repurchase Option.
(a) Termination Other than for Cause by the Company. In the event that the Subscriber’s
Continuous Service terminates for any reason, the Company shall, upon the date of such termination,
have the irrevocable, exclusive option to repurchase (the “Repurchase Option”) any Shares which
have not yet been released from the Repurchase Option (the “Unvested Shares”) at a price per share
equal to the Purchase Price (the “Repurchase Price”) plus simple interest from the date that the
Shares are issued to the Subscriber at a rate equal to 6% per annum, computed on the basis of the
actual number of days elapsed and a 365-day year (the
“Interest”). Furthermore, in the event that
such termination of Continuous Service is the result of the Subscriber’s resignation, the
Repurchase Option of the Company shall include the irrevocable, exclusive option to repurchase any
Vested Shares at fair market value as determined by the Board of Directors of the Company (the
“Board’’) in its reasonable discretion, plus Interest. For purposes of clarity, the term “Shares”
shall include both Unvested Shares and Vested Shares.
(b) Definitions. As used in this Agreement, “Continuous Service” means a period of continuous
performance of services by Subscriber for the Company or a Subsidiary, as determined by the Board
in its sole and absolute discretion.
(c) Except as limited by applicable law, the Company may exercise its Repurchase Option as to
any or all of the Shares at any time following the Subscriber’s termination; provided, however,
that without requirement of further action on the part of either party hereto, the Repurchase
Option shall be deemed to have been automatically exercised as to all of the Shares on the date
that is 90 days following the date of the Subscriber’s termination, unless the Company declines to
exercise its Repurchase Option prior to such time. Notwithstanding the foregoing, the Repurchase
Option shall not be deemed to have been
automatically exercised, and shall instead be deemed to be terminated as of such time and date, in
any case where such automatic exercise would result in a violation of applicable law by reason of
the Company having insufficient funds or assets to meet its obligations or otherwise, including,
without limitation, a violation of any provision of Section 160 of the General Corporation Law of
the State of Delaware.
(d) If the Company decides not to exercise its Repurchase Option, it shall notify the
Subscriber within 90 days of the Subscriber’s termination. If the Company decides to exercise its
Repurchase Option, the Company shall deliver payment to the Subscriber within 120 days from the
Subscriber’s termination, with a copy to the Escrow Agent (as defined below). The Company may pay
the Repurchase Price by any of the following methods: (i) delivering to the Subscriber a check or
bank wire transfer in the amount of the aggregate Repurchase Price plus Interest, if applicable,
(ii) canceling an amount of the Subscriber’s indebtedness to the Company, if any, equal to the
aggregate Repurchase Price plus Interest, if applicable, or (iii) any combination of (i) and (ii)
such that the combined payment and cancellation of indebtedness equals the Repurchase Price plus
Interest, if applicable. Upon payment of the Repurchase Price in any of the ways described above,
the Company shall become the legal and beneficial owner of the Shares being repurchased and all
related rights and interests therein, and the Company shall have the right to retain and transfer
to its own name the number of Shares being repurchased by the Company.
(e) In the event that the Repurchase Option is exercised by the Company, whether by payment or
automatically in the manner provided for above, then upon and following such exercise, the only
remaining right of the Subscriber under this Agreement shall be the right to receive the Repurchase
Price, and the Subscriber shall have no right whatsoever to receive, vote or claim any ownership or
interest in the Shares. In the event that the Subscriber’s continuous status as an employee of the
Company terminates, and the Company neither notifies the Subscriber within 90 days thereafter of
the Company’s decision not to exercise its Repurchase Option, nor delivers payment of the
Repurchase Price to the Subscriber within 120 days thereafter, then the sole and exclusive remedy
of the Subscriber thereafter shall be to receive the Repurchase Price from the Company in the
manner set forth above, and in no case shall the Subscriber have any claim of ownership or interest
as to any of the Shares. In the event that the Repurchase Option is terminated, whether by notice
from the Company to the Subscriber within 90 days following the termination of the Subscriber’s
employment or by reason of the automatic termination to avoid a violation of applicable law
described above, then upon and following such termination, the only remaining right of the
Subscriber under this Agreement shall be the right to receive the Shares, and the Subscriber shall
have no right whatsoever to receive the Repurchase Price.
3. Release of Shares From Repurchase Option; Vesting. 1/48th of the total
number of Shares shall be released from the Repurchase Option on the last day of each calendar
month, beginning with January 2009, for each full calendar month elapsing after the date hereof,
during which the Subscriber was an employee of the Company. The monthly release of the Shares from
the Repurchase Option shall continue until all of the Shares have been released at the end of the
48th month.
4. Escrow.
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(a) As security for the faithful performance of this Agreement, the Subscriber agrees,
immediately upon receipt of the certificate(s) evidencing the Shares, to deliver such
certificate(s), together with a stock power in the form of
Exhibit A attached to this Agreement,
executed by the Subscriber and by the Subscriber’s spouse, if any (with the date and number of
Shares left blank), to the Secretary of the Company or its designee
(the “Escrow Agent”). These
documents shall be held by the Escrow Agent pursuant to the Joint Escrow Instructions of the
Company and the Subscriber set forth in Exhibit B attached to this Agreement, which
instructions are incorporated into this Agreement by this reference, and which instructions shall
also be delivered to the Escrow Agent.
(b) Subject to the terms hereof, the Subscriber shall have all the rights of a stockholder
with respect to such Shares while they are held in escrow, including without limitation, the right
to vote the Shares. If, from time to time during the term of the Repurchase Option, there is (i)
any stock dividend, stock split or other change in the Shares, (ii) any dividend of cash or other
property on the Shares, or (iii) any merger or sale of all or substantially all of the assets or
other acquisition of the Company, any and all new, substituted or additional securities or cash or
other consideration to which the Subscriber is entitled by reason of the Subscriber’s ownership of
the Shares shall immediately become subject to this escrow, deposited with the Escrow Agent and
included thereafter as the “Shares” for purposes of this Agreement and the Repurchase Option.
5. Tax Consequences. The Subscriber has reviewed or shall review with the Subscriber’s
own tax advisors the federal, state, local and foreign tax consequences of this investment and the
transactions contemplated by this Agreement. The Subscriber is relying solely on such advisors and
not on any statements or representations of the Company or any of its agents. The Subscriber
understands that the Subscriber (and not the Company or any of its affiliates or agents) shall be
responsible for any tax liability that may arise as a result of the transactions contemplated by
this Agreement.
6. Representations and Warranties. The following representations, warranties and
undertakings are hereby made and/or agreed to by the Subscriber.
(a) The Subscriber has such knowledge and experience in financial and business matters that
the Subscriber is capable of protecting the Subscriber’s own interests in connection with the
purchase of the Shares and evaluating the merits and risks of the Subscriber’s investment in the
Company.
(b) The Subscriber and the Subscriber’s advisors have such knowledge and experience in
financial, tax and business matters so as to enable the Subscriber to utilize the information made
available to the Subscriber in connection with the investment contemplated hereby to evaluate the
merits and risks of an investment in the Company and to make an informed investment decision with
respect thereto. The Subscriber is familiar with the type of investment that the Shares constitute
and recognizes that an investment in the Company involves substantial risks, including risk of loss
of the entire amount of such investment.
(c) The Subscriber is aware that there are limitations and restrictions on the circumstances
under which the Subscriber may offer to sell, transfer or otherwise dispose of the
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Shares. Such limitations and restrictions include those set forth in this Agreement, the
Stockholders Agreement, dated as of July 28, 2004, by and among SciQuest Holdings, Inc., SciQuest,
Inc., Trinity Ventures VII, L.P., Trinity VII Side-By-Side Fund, L.P., Trinity Ventures VIII, L.P.,
Trinity VIII Side-By-Side Fund, L.P. and Trinity VIII Entrepreneurs’ Fund, L.P. (collectively,
“Trinity”) and the other parties thereto, as amended from time to time in accordance with its
terms, and those imposed by operation of applicable securities laws and regulations. The Subscriber
acknowledges that as a result of such limitations and restrictions, it might not be possible to
liquidate this investment readily and that it may be necessary to hold the investment for an
indefinite period.
(d) In evaluating the suitability of an investment in the Company, the Subscriber has not
relied upon any oral or written representations or other information from the Company, Trinity or
any agent, representative or advisor of the Company or Trinity except as set forth herein. The
Subscriber and the Subscriber’s advisors have had a reasonable opportunity to ask questions of and
receive answers from a person or persons acting on behalf of the Company concerning such
investment.
(e) No person, including, without limitation, the Company, Trinity or any of their managers,
officers, employees, agents, representatives or advisors has warranted to the Subscriber, either
expressly or by implication, the percentage of profits and/or amount of or type of consideration,
profit or loss (including tax write-offs and/or tax benefits) to be realized, if any, as a result
of the Subscriber’s investment in the Company.
(f) The Subscriber is effecting the purchase of the Shares contemplated hereby for the
Subscriber’s own account, for investment and not with a view to resale or distribution except in
compliance with the Securities Act. The Subscriber agrees not to sell or otherwise transfer the
Shares without registration under the Securities Act or applicable state securities laws or an
exemption therefrom. The Subscriber acknowledges that the Shares have not been and will not be
registered under the Securities Act or the securities laws of any state.
(g) The Subscriber has been provided to the Subscriber’s satisfaction with the opportunity to
ask questions concerning the terms and conditions of the offering of the Shares, has had all such
questions answered to the Subscriber’s satisfaction, and has had access to, and been supplied with,
all additional information deemed necessary by the Subscriber to verify the accuracy of such
information.
(h) The Subscriber’s principal residence for tax purposes is Maryland.
(i) The Subscriber can bear the economic risk of the purchase of the Shares and of the
loss of the entire amount of the investment.
(j) The Subscriber agrees not to transfer or assign this Agreement or any interest
herein without the prior written consent of the Company.
(k) The Subscriber is legally competent to enter into this Agreement and to undertake
the transactions contemplated in this Agreement.
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(l) This Agreement has been duly and validly executed and delivered by the
Subscriber and constitutes the legal, valid and binding obligation of the Subscriber,
enforceable in accordance with its terms, subject to applicable bankruptcy,
insolvency, reorganization, moratorium, liquidation, fraudulent conveyance and other
similar laws and principles of equity affecting creditors’ rights and remedies
generally.
(m) The Subscriber hereby agrees to indemnify the Company and hold it
harmless against all liabilities, claims, costs or expenses arising out of or
resulting from any misrepresentation or breach of any covenant made by the
Subscriber in this Agreement.
7. Additional Information. The Subscriber agrees that the Subscriber will
provide such additional information as the Company may reasonably request in
evaluating the Subscriber’s suitability to make this investment.
8. Accredited Investor Determination. Please check and complete the following:
The Subscriber certifies that the Subscriber is (check all that apply):
| þ | (a) | a natural person whose individual net worth, or joint net worth with that person’s spouse, exceeds $1,000,000; | |
| þ | (b) | a natural person who had an individual net income in excess of $200,000 in each of the two most recent years or joint income with that person’s spouse in excess of $300,000 in each of those years and has a reasonable expectation of reaching the same income level in the current year; | |
| þ | (c) | a director or executive officer of the Company; | |
| o | (d) | none of the above. |
9. General Provisions.
(a) The Agreement shall be governed by and construed, interpreted and
enforced in accordance with the internal, substantive laws of the State of
Delaware, without regard to the conflicts of laws principles thereto.
(b) Compliance with the provisions of this Agreement may be waived only by a
written instrument specifically referring to this Agreement and signed by the party
waiving compliance. No course of dealing, nor any failure or delay in exercising any
right, shall be construed as a waiver, and no single or partial exercise of a right
shall preclude any other or further exercise of that or any other right.
(c) This Agreement is the exclusive statement of the agreement among the parties concerning
the subject matter hereof. All negotiations, disclosures, discussions and investigations relating
to the subject matter of this Agreement are merged into this Agreement, and there are no
representations, warranties, covenants, understandings or agreements, oral or
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otherwise, relating to the subject matter of this Agreement, other than those included or
referenced herein.
(d) Any notice, demand, offer, request or other communication required or permitted to be
given by either the Company or the Subscriber pursuant to the terms of this Agreement shall be in
writing and shall be deemed effectively given the earlier of (i) when received, (ii) when delivered
personally, (iii) one Business Day after being delivered by facsimile (with receipt of appropriate
confirmation), (iv) one Business Day after being deposited with an overnight courier service or (v)
four days after being deposited in the U.S. mail, first class with postage prepaid, and addressed
to the parties at the addresses provided to the Company or such other address as a party may
request by notifying the other in writing. The term “Business Day” means a day other than a
Saturday, Sunday or day on which banking institutions in Raleigh, North Carolina are authorized or
required to remain closed.
(e) The parties will resolve any controversy or claim arising out of or relating to this
Agreement by arbitration in accordance with the provisions that follow. If any party shall commence
an arbitration proceeding, all defenses to the controversy or claim which is the subject of such
arbitration proceeding and all counterclaims shall be raised and resolved in such arbitration
proceeding. Any party may initiate, by written notice delivered to the other party(s), binding
arbitration in accordance with the now current AAA Commercial Arbitration Rules (the “Arbitration
Rules”). Any conflicts between the Arbitration Rules and this paragraph shall be resolved in favor
of this paragraph. Within ten Business Days after the initiation of arbitration, the parties shall
seek to identify one mutually acceptable impartial arbitrator selected by AAA to serve as sole
arbitrator. The seat of arbitration shall be in Raleigh, North Carolina. In any dispute covered by
this Agreement, either party may, notwithstanding the foregoing, request at any time pending a
final decision under this Agreement, a temporary restraining order, preliminary injunction or other
interim relief from any court of competent jurisdiction without thereby waiving its other rights
under this Agreement. BY EXECUTING THIS AGREEMENT THE SUBSCRIBER IS AGREEING TO HAVE ANY DISPUTE
ARISING OUT OF THIS AGREEMENT DECIDED BY ARBITRATION AND GIVING UP ANY RIGHTS SUBSCRIBER MIGHT
POSSESS TO HAVE THE DISPUTE LITIGATED IN A COURT OR JURY TRIAL. BY EXECUTING THIS AGREEMENT
SUBSCRIBER IS GIVING UP SUBSCRIBER’S JUDICIAL RIGHTS TO DISCOVERY AND APPEAL. SUBSCRIBER’S
AGREEMENT TO THIS ARBITRATION PROVISION IS VOLUNTARY.
(f) This Agreement may be executed in one or more counterparts, each of which will be
deemed an original, but all of which together will constitute one and the same agreement. Facsimile
copies of signed signature pages shall be binding originals.
[Signatures on the Following Page]
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| The Subscriber has executed or caused this Agreement to be duly executed this 21st day of January, 2010. |
| Subscriber: Xxxxxx Xxxxxx |
||||
| Signature: | /s/ Xxxxxx Xxxxxx | |||
| Accepted this 21st day of January,
2010. SciQuest, Inc. |
||||
| By: | /s/ Xxxxxxx X. Xxxxx | |||
| Xxxxxxx X. Xxxxx | ||||
| Chief Executive Officer and President | ||||
