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S-1/A - FORM S-1/A - SCIQUEST INC | g22513a5sv1za.htm |
EX-5.1 - EX-5.1 - SCIQUEST INC | g22513a5exv5w1.htm |
EX-4.1 - EX-4.1 - SCIQUEST INC | g22513a5exv4w1.htm |
EX-4.3 - EX-4.3 - SCIQUEST INC | g22513a5exv4w3.htm |
EX-23.1 - EX-23.1 - SCIQUEST INC | g22513a5exv23w1.htm |
Exhibit 3.1
SECOND AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
SCIQUEST, INC.
CERTIFICATE OF INCORPORATION
OF
SCIQUEST, INC.
(Pursuant to Sections 242 and 245 of the
General Corporation Law of the State of Delaware)
General Corporation Law of the State of Delaware)
SciQuest, Inc. (the Corporation), a corporation organized and existing under and by virtue
of the laws of the State of Delaware, DOES HEREBY CERTIFY:
1. The name of the Corporation is SciQuest, Inc.
2. The original Certificate of Incorporation of the Corporation was filed with the Secretary
of State of the State of Delaware on February 16, 1999.
3. This Second Amended and Restated Certificate of Incorporation, which restates, integrates
and further amends the provisions of the Corporations Certificate of Incorporation, has been duly
adopted in accordance with Sections 228, 242 and 245 of the General Corporation Law of the State of
Delaware.
4. The Certificate of Incorporation of the Corporation is hereby amended and restated in its
entirety to read as follows:
ARTICLE I
The name of the corporation is SciQuest, Inc. (the Corporation).
ARTICLE II
The address of the Corporations registered office in the State of Delaware is 2711
Centerville Road, Suite 400, City of Wilmington, County of New Castle, Delaware 19808. The name of
its registered agent at such address is The Corporation Service Company.
ARTICLE III
The purpose of the Corporation is to engage in any lawful act or activity for which
corporations may be organized under the General Corporation Law of the State of Delaware (as the
same exists or may hereafter be amended, the DGCL).
ARTICLE IV
The total number of shares of all classes of capital stock that the Corporation is authorized
to issue is fifty-five million shares, consisting of (i) fifty million shares of common stock,
$0.001 par value per share, (Common Stock) and (ii) five million shares of preferred stock,
$0.001 par value per share (Preferred Stock), of which 222,073 shares shall be designated as
Series A Preferred Stock, $0.001 par value per share (Series A Preferred Stock). Each issued and
outstanding share of Preferred Stock as of the filing date of this
Second Amended and Restated Certificate of Incorporation shall be designated as Series A
Preferred Stock.
Effective as of the date and time this Second Amended and Restated Certificate of
Incorporation is filed with the Secretary of State of the State of Delaware, each two shares of
outstanding Common Stock shall be combined into one share of Common Stock as described herein (the
Reverse Split). No fractional shares of Common Stock shall be issued in connection with the
Reverse Split. All shares of Common Stock that are held by a stockholder shall be aggregated for
purposes of the Reverse Split, and in lieu of any interest in a fractional share of Common Stock
that may remain following such aggregation, the Corporation shall pay a cash amount to such
stockholder equal to the fair value of such fractional share (as determined in good faith by the
Corporations Board of Directors), rounded up to the nearest whole $0.01. All share and per share
numbers in this Second Amended and Restated Certificate of Incorporation are stated after giving
effect to the Reverse Split. Notwithstanding the foregoing, the par value of each share of the
outstanding Common Stock shall not be adjusted in connection with the Reverse Split, and after the
Reverse Split the par value of the Common Stock shall remain at $0.001.
A. Common Stock.
1. General. The voting, dividend and liquidation rights of the holders of Common
Stock are subject to and qualified by the rights of the holders of Preferred Stock of any series as
may be designated by the Corporations Board of Directors (the Board of Directors) upon any
issuance of Preferred Stock of any series.
2. Voting. Each share of Common Stock shall entitle the holder thereof to one (1)
vote on each matter submitted to a vote at a meeting of stockholders of the Corporation. There
shall be no cumulative voting.
The number of authorized shares of Common Stock may be increased or decreased (but not below
the number of shares thereof then outstanding) by the affirmative vote of the holders of a majority
of the stock of the Corporation entitled to vote, irrespective of the provisions of Section
242(b)(2) of the DGCL.
3. Dividends. Subject to the rights of the holders of Preferred Stock, and to the
other provisions of this Certificate of Incorporation, holders of Common Stock shall be entitled to
receive equally, on a per share basis, such dividends or other distributions in cash, securities or
other property of the Corporation as may be declared thereon by the Board of Directors from time to
time out of assets or funds of the Corporation legally available therefor.
4. Liquidation. In the event of any liquidation, dissolution or winding up of the
affairs of the Corporation, whether voluntary or involuntary, after payment or provision for
payment of the Corporations debts and amounts payable upon shares of Preferred Stock entitled to a
preference, if any, over holders of Common Stock upon such dissolution, liquidation or winding up,
the remaining net assets of the Corporation shall be distributed among holders of shares of Common
Stock equally on a per share basis.
B. Preferred Stock.
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1. Designation of Series of Preferred Stock. Preferred Stock may be issued from time
to time in one or more series pursuant to a resolution or resolutions providing for such issue duly
adopted by the Board of Directors (authority to do so being hereby expressly vested in the Board of
Directors). The Board of Directors is further authorized, subject to limitations prescribed by
law, to fix by resolution or resolutions the designations, powers, preferences and rights, and the
qualifications, limitations or restrictions thereof, of any wholly unissued series of Preferred
Stock including, without limitation, authority to fix by resolution or resolutions the dividend
rights, dividend rate, conversion rights, voting rights, rights and terms of redemption (including
sinking fund provisions), redemption price or prices, and liquidation preferences of any such
series, and the number of shares constituting any such series and the designation thereof, or any
of the foregoing.
The Board of Directors is further authorized to increase (but not above the total number of
authorized shares of the class) or decrease (but not below the number of shares of any such series
then outstanding) the number of shares of any series, the number of which was fixed by it,
subsequent to the issuance of shares of such series then outstanding, subject to the powers,
preferences and rights, and the qualifications, limitations and restrictions thereof stated in this
Certificate of Incorporation or the resolution of the Board of Directors originally fixing the
number of shares of such series. If the number of shares of any series is so decreased, then the
shares constituting such decrease shall resume the status that they had prior to the adoption of
the resolution originally fixing the number of shares of such series.
The number of authorized shares of Preferred Stock may be increased or decreased (but not
below the number of shares thereof then outstanding) by the affirmative vote of the holders of a
majority of the voting power of the capital stock of the Corporation entitled to vote, voting as a
single class, irrespective of the provisions of Section 242(b)(2) of the DGCL.
2. Rights, Preferences and Privileges of the Series A Preferred Stock.
(A) Rank. The Series A Preferred Stock shall, with respect to dividend rights and rights on
liquidation, dissolution and winding up, rank prior to all classes or series of equity securities
of the Corporation, including the Common Stock. All equity securities of the Corporation to which
the Series A Preferred Stock ranks prior (whether with respect to dividends or upon liquidation,
dissolution or winding up), including the Common Stock, are collectively referred to herein as the
Junior Securities. All equity securities of the Corporation with which the Series A Preferred
Stock ranks on a parity (whether with respect to dividends or upon liquidation, dissolution or
winding up) are collectively referred to herein as the Parity Securities. The respective
definitions of Junior Securities and Parity Securities shall also include any warrants, rights or
options exercisable for any of the Junior Securities and Parity Securities, as the case may be.
(B) Dividends. The holders of shares of Series A Preferred Stock shall be entitled to
receive, when, as and if declared by the Board of Directors, out of funds legally available for the
payment of dividends, dividends at the rate per share of 8% of the Accreted Value per annum
(calculated in each of the Corporations fiscal quarters at a quarterly rate of 2.0%). Accreted
Value means, with respect to each share of Series A Preferred Stock, $100, as adjusted from time
to time pursuant to Article IV.B.2(B)(2).
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(1) Dividends not declared shall nonetheless continue to cumulate and accrue. Accrued
dividends will compound quarterly in arrears on the last day of each fiscal quarter. The
amount of accrued dividends for any period that is shorter than a full fiscal quarter shall
be computed based on the number of days elapsed during that quarter.
(2) All accrued dividends shall be added to the Accreted Value for all purposes
(subject to the quarterly compounding provision of Article IV.B.2(B)(1)) until they are
declared and paid.
(3) Dividends shall begin to accrue on July 28, 2004, except that dividends on any
amounts added to the Accreted Value pursuant to Article IV.B.2(B)(2) shall begin to accrue
pursuant to the compounding provision of Article IV.B.2(B)(1).
(C) Liquidation Preference. In the event of any voluntary or involuntary liquidation,
dissolution or winding up of the Corporation, prior and in preference to any distribution or
setting apart of any of the assets or funds of the Corporation to the holders of the Junior
Securities by reason of their ownership of such stock, the holders of Series A Preferred Stock
shall be entitled to receive for each outstanding share of Series A Preferred Stock then held by
them an amount in cash equal to the Accreted Value, including accrued and unpaid cumulative
dividends in accordance with Article IV.B.2(B). Except as provided in the preceding sentence,
holders of Series A Preferred Stock shall not be entitled to any distribution in the event of
liquidation, dissolution, or winding up of the affairs of the Corporation.
(1) If, upon the occurrence of a liquidation, dissolution or winding up, the assets and
funds of the Corporation legally available for distribution to stockholders by reason of
their ownership of stock of the Corporation shall be insufficient to permit the payment to
such holders of Series A Preferred Stock of the full aforementioned preferential amount,
then the entire assets and funds of the Corporation legally available for distribution to
the Corporations stockholders by reason of their ownership of stock of the Corporation
shall be distributed ratably among the holders of Series A Preferred Stock.
(2) Notwithstanding anything to the contrary herein, any Merger Event shall be deemed a
liquidation, dissolution or winding up of the Corporation under this Restated Certificate of
Incorporation. Merger Event means (i) the acquisition of the Corporation by another
Person by means of any transaction or series of related transactions, including, without
limitation, any reorganization, merger or consolidation, whether or not the Corporation is
the surviving entity, but excluding (a) any merger effected exclusively for the purpose of
changing the domicile of the Corporation and (b) any merger or consolidation as a result of
which the holders of capital stock of the Corporation immediately prior to such merger or
consolidation possess (by reason of such holdings) more than 50% of the voting power of the
entity surviving the merger or consolidation (or other entity that controls the surviving
corporation and is the issuer of the capital stock into which the capital stock of the
Corporation is converted or exchanged in such merger or consolidation) or (ii) the sale or
transfer, directly or indirectly (including through the sale of assets by the Corporations
subsidiaries), of all or
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substantially all of the consolidated assets of the Corporation to a Person that is not
an Affiliate of the Corporation prior to such sale or transfer.
(D) Redemption.
(1) Optional Redemption. As and to the extent permitted by law and to the extent the
Corporation shall have funds legally available for such payment, the Corporation may, at the
option of the Board of Directors, redeem for cash shares of Series A Preferred Stock, at any
time in whole or from time to time in part, at a redemption price per share equal to the
Accreted Value, including accrued and unpaid cumulative dividends in accordance with Article
IV.B.2(B), through the date fixed for redemption (the Redemption Price). If less than all
of the shares of Series A Preferred Stock are to be redeemed, the selection of shares for
redemption shall be made pro rata.
(2) Redesignation of Redeemed or Repurchased Shares of Series A Preferred Stock.
Shares of Series A Preferred Stock which have been issued and reacquired in any manner,
including shares repurchased or redeemed, shall (upon compliance with any applicable
provisions of the laws of the State of Delaware) have the status of authorized and unissued
shares of the class of Series A Preferred Stock undesignated as to series or may be
redesignated and reissued as part of any series of Series A Preferred Stock.
(3) Full Dividends on Redeemed Shares. Notwithstanding the foregoing provisions of
this Article IV.B.2(D), unless full cumulative dividends (whether or not declared) on all
outstanding shares of Series A Preferred Stock shall have been paid or contemporaneously are
declared and paid or set apart for payment for all dividend periods terminating on or prior
to the applicable redemption date, none of the shares of Series A Preferred Stock shall be
redeemed, and no sum shall be set aside for such redemption, unless shares of Series A
Preferred Stock are redeemed pro rata.
(4) Mechanics of Redemption. In the event of the redemption of shares of Series A
Preferred Stock, the Corporation shall send via first class mail, postage prepaid, a notice
of redemption (the Redemption Notice) to each holder of record of shares of Series A
Preferred Stock addressed to the holder at the address of such holder appearing on the books
of the Corporation or given by the holder to the Corporation for the purpose of notice, or,
if no such address appears or is given, then at the place where the principal executive
office of the Corporation is located, not earlier than 60 nor later than 10 days before such
payment is due. The Redemption Notice shall state:
(i) in the case of any redemption, whether all or less than all the outstanding
shares of the Series A Preferred Stock are to be redeemed and the total number of
shares of such Series A Preferred Stock being redeemed;
(ii) the number of shares of Series A Preferred Stock held by the holder that
the Corporation will redeem;
(iii) the date fixed for redemption and the price at which the shares of Series
A Preferred Stock are to be redeemed;
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(iv) that the holder is to surrender to the Corporation, in the manner and at
the place designated, its certificate or certificates representing the shares of
Series A Preferred Stock to be redeemed; and
(v) that dividends on shares to be redeemed will cease to accrue on the date
fixed for redemption.
If funds are available on the date fixed for the redemption, then whether or not the stock
certificate or certificates are surrendered for payment of the Redemption Price, the shares of
Series A Preferred Stock shall no longer be outstanding and the holders thereof shall cease to be
stockholders of the Corporation with respect to the shares redeemed on and after the date fixed for
redemption and shall be entitled only to receive the redemption price without interest upon
surrender of the stock certificate or certificates. If less than all the shares represented by one
stock certificate are to be redeemed, the Corporation shall issue a new stock certificate for the
shares not redeemed.
(E) Voting.
(1) General. Except as otherwise required by Delaware Law or the Stockholders
Agreement, dated as of July 28, 2004, among the Corporation, SciQuest Holdings, 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., Trinity VIII Entrepreneurs Fund, L.P.,
Intersouth Partners V, L.P., Intersouth Affiliates V, L.P., Intersouth Partners VI, L.P. and
certain other persons named therein (the Stockholders Agreement), the holders of shares of
Series A Preferred Stock shall not be entitled to any voting rights. Except as expressly
required under Delaware Law or the Stockholders Agreement, on any matter on which holders of
shares of Series A Preferred Stock shall be entitled to vote, they shall be entitled to one
vote per share, voting as a single class.
(2) Approval by Series A Preferred Stock. The Corporation shall not, without first
obtaining the approval of the holders of not less than a majority of the total number of
shares of Series A Preferred Stock then outstanding:
(i) authorize, create or issue shares of any class or series of stock having
any preference or priority superior to or on a parity with any such preference or
priority of the Series A Preferred Stock;
(ii) take any step resulting in the payment of a dividend or distribution on or
redemption of shares of Parity Securities or Junior Securities unless the only
payment made by the Corporation consists of Junior Securities;
(iii) amend, alter, repeal or waive any provision of this Restated Certificate
of Incorporation so as to adversely affect the preferences, rights or powers of the
Series A Preferred Stock; or
(iv) amend or terminate this Article IV.B.2(E).
ARTICLE V
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A. Management. The business and affairs of the Corporation shall be managed by or under the
direction of the Board of Directors.
B. Number of Directors; Written Ballot Not Required. Subject to the rights of the holders of
any series of Preferred Stock then outstanding, the number of directors shall be fixed by the Board
of Directors. Election of Directors need not be by written ballot, except as provided in the
Bylaws of the Corporation (which, as used herein, shall mean the bylaws of the Corporation, as
amended from time to time).
C. Classification of Directors. Subject to the rights of holders of any series of Preferred
Stock then outstanding, the Board of Directors shall be and is divided into three classes: Class I,
Class II and Class III. Each class shall consist, as nearly as may be possible, of one-third of
the total number of directors constituting the entire Board of Directors. The allocation of
directors among classes shall be determined by resolution of the Board of Directors.
D. Terms of Office. Subject to the rights of the holders of any series of Preferred Stock
then outstanding, each director shall serve for a term ending on the date that is the third annual
meeting of stockholders following the annual meeting of stockholders at which such director was
elected; provided that the term of office of the initial Class I directors shall expire at
the next succeeding annual meeting of stockholders, the term of office of the initial Class II
directors shall expire at the second succeeding annual meeting of stockholders, and the term of
office of the initial Class III directors shall expire at the third succeeding annual meeting of
the stockholders; provided, further, that the term of each director shall continue
until the election and qualification of such directors successor and be subject to such directors
earlier death, resignation or removal. If the number of directors is hereafter changed, any newly
created directorships or decrease in directorships shall be so apportioned among the classes as to
make all classes as nearly equal in number as practicable.
E. Newly-Created Directorships and Vacancies. Subject to the rights of the holders of any
series of Preferred Stock then outstanding, newly created directorships resulting from any increase
in the number of directors or any vacancies in the Board of Directors resulting from death,
resignation, retirement, disqualification, removal from office or any other cause shall be filled
by a majority of the directors then in office, although less than a quorum, or by the sole
remaining director, and shall not be filled by the stockholders. Directors elected to fill a newly
created directorship or other vacancies shall hold office until the next election of the class for
which such director shall have been chosen, subject to the election and qualification of such
directors successor and to such directors earlier death, resignation or removal.
F. Removal of Directors. Subject to the rights of the holders of any series of Preferred
Stock then outstanding, directors of the Corporation may be removed only for cause and only by the
affirmative vote of the holders of at least seventy-five percent (75%) of the voting power of all
shares of the Corporation entitled to vote generally in the election of directors, voting together
as a single class.
G. Quorum. Subject to Section E of this Article V, a majority of the total number of
directors shall constitute a quorum for the transaction of business except when a vacancy or
vacancies prevents such majority, whereupon a majority of the directors then in office shall
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constitute a quorum; provided that such majority shall constitute at least one-third
(1/3) of the total number of directors. If at any meeting of the Board of Directors there shall be
less than a quorum present, a majority of the directors present may adjourn the meeting from time
to time without further notice.
H. Action at Meeting. Every act or decision done or made by a majority of the directors
present at a meeting duly held at which a quorum is present shall be regarded as the act of the
Board of Directors unless a greater number is required by law or by this Certificate of
Incorporation.
I. Stockholder Nominations and Introduction of Business, Etc. Advance notice of stockholder
nominations for election of directors and other business to be brought by stockholders before a
meeting of stockholders shall be given in the manner provided by the Bylaws of the Corporation.
J. Bylaws. In furtherance and not in limitation of the powers conferred upon it by the DGCL,
and subject to the terms of any series of Preferred Stock then outstanding, the Board of Directors
shall have the power to adopt, amend, alter or repeal the Bylaws of the Corporation by the
affirmative vote of a majority of the directors present at any regular or special meeting of the
Board of Directors at which a quorum is present. The stockholders may not adopt, amend, alter or
repeal the Bylaws of the Corporation, or adopt any provision inconsistent therewith, unless such
action is approved, in addition to any other vote required by this Certificate of Incorporation, by
the affirmative vote of the holders of at least seventy-five percent (75%) of the voting power of
all shares entitled to vote generally in the election of directors, voting together as a single
class.
ARTICLE VI
A director of the Corporation shall not be personally liable to the Corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director; provided,
however, that the foregoing shall not eliminate or limit the liability of a director (i)
for any breach of the directors duty of loyalty to the Corporation or its stockholders, (ii) for
acts or omissions not in good faith or that involve intentional misconduct or a knowing violation
of law, (iii) under Section 174 of the DGCL, or (iv) for any transaction from which the director
derived an improper personal benefit. If the DGCL is hereafter amended to permit further
elimination or limitation of the personal liability of directors, then the liability of a director
of the Corporation shall be eliminated or limited to the fullest extent permitted by the DGCL as so
amended. Any repeal or modification of this Article VI by the stockholders of the
Corporation or otherwise shall not adversely affect any right or protection of a director of the
Corporation existing at the time of such repeal or modification.
ARTICLE VII
The Corporation shall provide indemnification as follows:
A. Indemnification. Each person who was or is a party or is threatened to be made a party to
any action, suit, claim or proceeding, whether civil, criminal, administrative or investigative
(hereinafter a proceeding), by reason of the fact that he or she or a person of
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whom he or she is the legal representative is or was a director or officer of the Corporation
or is or was serving at the request of the Corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise, including service with
respect to employee benefit plans maintained or sponsored by the Corporation, or by reason of any
action alleged to have been taken or omitted in such capacity shall be indemnified and held
harmless by the Corporation to the fullest extent authorized by the DGCL as the same exists or may
hereafter be amended (but, in the case of any such amendment, only to the extent that such
amendment permits the Corporation to provide broader indemnification rights than said law permitted
the Corporation to provide prior to such amendment), against all expense, liability and loss
(including attorneys fees, judgments, fines, excise taxes and penalties arising under the Employee
Retirement Income Security Act of 1974 and amounts paid or to be paid in settlement) reasonably
incurred or suffered by such person in connection therewith or any appeal therefrom and such
indemnification shall continue as to a person who has ceased to be a director, officer, employee or
agent and shall inure to the benefit of his or her heirs, executors and administrators;
provided, however, that except as provided in Section D of this Article
VII, the Corporation shall indemnify any such person seeking indemnification in connection with
a proceeding (or part thereof) initiated by such person only if such proceeding (or part thereof)
was authorized by the Board of Directors.
B. Advancement of Expenses. The right to indemnification conferred in this Article
VII shall be a contract right and shall include the right to be paid by the Corporation the
expenses (including attorneys fees) incurred in defending any such proceeding or any appeal
therefrom in advance of its final disposition. Such advances shall be paid by the Corporation upon
receipt by the Corporation of a written statement or statements from the claimant requesting such
advance or advances and an undertaking by or on behalf of such claimant to repay all amounts so
advanced in the event that it shall ultimately be determined that such claimant is not entitled to
be indemnified by the Corporation as authorized in this Article VII. Such undertaking
shall be accepted without reference to the financial ability of the claimant to make such
repayment.
C. Procedure for Indemnification. To obtain indemnification under this Article VII, a
claimant shall submit to the Corporation a written request, including therein or therewith such
documentation and information as is reasonably available to the claimant and is reasonably
necessary to determine whether and to what extent the claimant is entitled to indemnification.
Upon written request by a claimant for indemnification pursuant to the first sentence of this
Section C, a determination, if required by applicable law, with respect to the claimants
entitlement thereto shall be made as follows: (1) if requested by the claimant, by Independent
Counsel (as hereinafter defined), or (2) if no request is made by the claimant for a determination
by Independent Counsel, (i) by the Board of Directors by a majority vote of a quorum consisting of
Disinterested Directors (as hereinafter defined), or (ii) if a quorum of the Board of Directors
consisting of Disinterested Directors is not obtainable or, even if obtainable, such quorum of
Disinterested Directors so directs, by Independent Counsel in a written opinion to the Board of
Directors, a copy of which shall be delivered to the claimant, or (iii) if a quorum of
Disinterested Directors so directs, by the stockholders of the Corporation. In the event the
determination of entitlement to indemnification is to be made by Independent Counsel at the request
of the claimant, the Independent Counsel shall be selected by the Board of Directors unless there
shall have occurred within two years prior to the date of the commencement of the proceeding for
which indemnification is claimed a Change in Control (as defined below), in which case the
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Independent Counsel shall be selected by the claimant unless the claimant shall request that such
selection be made by the Board of Directors. If it is so determined that the claimant is entitled
to indemnification, payment to the claimant shall be made within 30 days after such determination.
If a claimant is successful, in whole or in part, in any suit brought against the Corporation to
recover the unpaid amount of any written claim to indemnification, the claimant shall be entitled
to be paid also the expense of prosecuting such claim.
D. Remedies. If a claim under Section A of this Article VII is not paid in full by
the Corporation within 30 days after a written claim pursuant to Section C of this Article
VII has been received by the Corporation, the claimant may at any time thereafter bring suit in
a court of competent jurisdiction against the Corporation to recover the unpaid amount of the claim
and, if successful in whole or in part, the claimant shall be entitled to be paid also the expense
of prosecuting such claim. It shall be a defense to any such action (other than an action brought
to enforce a claim for expenses incurred in defending any proceeding or any appeal therefrom in
advance of its final disposition where the required undertaking has been tendered to the
Corporation) that the claimant has not met the standard of conduct which makes it permissible under
the DGCL for the Corporation to indemnify the claimant for the amount claimed, but the burden of
proving such defense shall be on the Corporation. Neither the failure of the Corporation
(including its Board of Directors, Independent Counsel or stockholders) to have made a
determination prior to the commencement of such action that indemnification of the claimant is
proper in the circumstances because he or she has met the applicable standard of conduct set forth
in the DGCL, nor an actual determination by the Corporation (including its Board of Directors,
Independent Counsel or stockholders) that the claimant has not met such applicable standard of
conduct, shall be a defense to the action or create a presumption that the claimant has not met the
applicable standard of conduct.
E. Obligation to Indemnify. If a determination shall have been made pursuant to Section C of
this Article VII that the claimant is entitled to indemnification, the Corporation shall be
bound by such determination in any judicial proceeding commenced pursuant to Section D of this
Article VII.
F. Partial Indemnification. If a claimant is entitled under any provision of this Article
VII to indemnification by the Corporation for some or a portion of the expense, liability and
loss (including attorneys fees, judgments, fines, excise taxes and penalties arising under the
Employee Retirement Income Security Act of 1974 and amounts paid or to be paid in settlement)
reasonably incurred or suffered by such claimant in connection with any proceeding or any appeal
therefrom but not, however, for the total amount thereof, the Corporation shall nevertheless
indemnify such claimant for the portion of such expense, liability and loss (including attorneys
fees, judgments, fines, excise taxes and penalties arising under the Employee Retirement Income
Security Act of 1974 and amounts paid or to be paid in settlement) to which such claimant is
entitled.
G. Preclusion from Challenging Article VII. The Corporation shall be precluded from
asserting in any judicial proceeding commenced pursuant to Section D of this Article VII
that the procedures and presumptions of this Article VII are not valid, binding and
enforceable and shall stipulate in such proceeding that the Corporation is bound by all the
provisions of this Article VII.
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H. Non-Exclusivity of Rights. The right to indemnification and the payment of expenses
incurred in defending a proceeding in advance of its final disposition conferred in this
Article VII shall not be exclusive of any other right which any person may have or
hereafter acquire under any statute, provision of the Certificate of Incorporation, Bylaws,
agreement, vote of stockholders or otherwise. Nothing contained in this Article VII shall
be deemed to prohibit, and the Corporation is specifically authorized to enter into, agreements
with officers and directors providing indemnification rights and procedures different from those
set forth in this Article VII.
I. Insurance. The Corporation may purchase and maintain insurance, at its expense, to protect
itself and any director, officer, employee or agent of the Corporation or another corporation,
partnership, joint venture, trust or other enterprise against any expense, liability or loss,
whether or not the Corporation would have the power to indemnify such person against such expense,
liability or loss under the DGCL. To the extent that the Corporation maintains any policy or
policies providing such insurance, each such director or officer, and each such agent or employee
to which rights to indemnification have been granted as provided in Section A of this Article
VII, shall be covered by such policy or policies in accordance with its or their terms to the
maximum extent of the coverage thereunder for any such director, officer, employee or agent.
J. Other Employees and Agents. The Corporation may, to the extent authorized from time to
time by the Board of Directors, grant rights to indemnification, and rights to be paid by the
Corporation the expenses incurred in defending any proceeding in advance of its final disposition,
to any employee or agent or class of employees or agents of the Corporation (including the heirs,
executors, administrators or estate of each such person) to the fullest extent of the provisions of
this Article VII with respect to the indemnification and advancement of expenses of
directors and officers of the Corporation.
K. Validity of Article VII. If any provision or provisions of this Article
VII shall be held to be invalid, illegal or unenforceable for any reason whatsoever: (1) the
validity, legality and enforceability of the remaining provisions of this Article VII
(including, without limitation, each portion of any paragraph of this Article VII
containing any such provision held to be invalid, illegal or unenforceable, that is not itself held
to be invalid, illegal or unenforceable) shall not in any way be affected or impaired thereby; and
(2) to the fullest extent possible, the provisions of this Article VII (including, without
limitation, each such portion of any paragraph of this Article VII containing any such
provision held to be invalid, illegal or unenforceable) shall be construed so as to give effect to
the intent manifested by the provision held invalid, illegal or unenforceable.
L. Definitions. For purposes of this Article VII:
1. Change in Control shall be deemed to occur only if a majority of the members of the Board
of Directors shall not be (i) individuals elected as directors of the Corporation for whose
election proxies shall have been solicited by the Board of Directors or (ii) individuals elected or
appointed by the Board of Directors to fill vacancies on the Board of Directors caused by death or
resignation (but not by removal) or to fill newly created directorships.
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2. Disinterested Director means a director of the Corporation who is not and was not a party
to the matter in respect of which indemnification is sought by the claimant.
3. Independent Counsel means a law firm, a member of a law firm, or an independent
practitioner, that is experienced in matters of corporation law and shall include any person who,
under the applicable standards of professional conduct then prevailing, would not have a conflict
of interest in representing either the Corporation or the claimant in an action to determine the
claimants rights under this Article VII.
M. Subsequent Amendment. No amendment, termination or repeal of this Article VII or
the relevant provisions of the DGCL or any other applicable laws shall adversely affect or diminish
in any way the rights of any claimant to indemnification under the provisions hereof with respect
to any proceeding arising out of or relating to any actions, transactions or facts occurring prior
to the final adoption of such amendment, termination or repeal.
ARTICLE VIII
The stockholders of the Corporation may not take any action by written consent in lieu of a
meeting and must take any actions at a duly called annual or special meeting of stockholders. The
power of stockholders to consent in writing without a meeting is specifically denied.
ARTICLE IX
Special meetings of stockholders of the Corporation may be called only by the Board of
Directors, the Chairman of the Board of Directors or the Chief Executive Officer of the Corporation
and may not be called by any other person or persons. Business transacted at any special meeting
of stockholders shall be limited to matters relating to the purpose or purposes stated in the
notice of the meeting.
ARTICLE X
The Corporation reserves the right to amend, alter, change or repeal any provision contained
in this Certificate of Incorporation, in the manner now or hereafter prescribed by statute and this
Certificate of Incorporation, and all rights conferred upon stockholders herein are granted subject
to this reservation. Notwithstanding any other provision of this Certificate of Incorporation or
the Bylaws of the Corporation, and notwithstanding the fact that a lesser percentage or separate
class vote may be specified by law, this Certificate of Incorporation, the Bylaws of the
Corporation or otherwise, but in addition to any affirmative vote of the holders of any particular
class or series of the capital stock required by law, this Certificate of Incorporation, the Bylaws
of the Corporation or otherwise, the affirmative vote of the holders of at least seventy-five
percent (75%) of the voting power of all shares of the Corporation entitled to vote generally in
the election of directors, voting together as a single class, shall be required to adopt any
provision inconsistent with, to amend or repeal any provision of, or to adopt a bylaw inconsistent
with, Articles V, VI, VII, VIII, IX or X of this
Certificate of Incorporation.
[Remainder of Page Intentionally Blank]
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IN WITNESS WHEREOF, this Second Amended and Restated Certificate of Incorporation has been
executed by a duly authorized officer of the Corporation on this ___ day of September, 2010.
SCIQUEST, INC. |
||||
By: | ||||
Name: | Stephen J. Wiehe | |||
Title: | Chief Executive Officer | |||