Indemnification Agreement

Indemnification Agreement

by Sciquest
May 11th, 2010
Exhibit 10.13
     THIS INDEMNIFICATION AGREEMENT (this "Agreement") is entered into as of the ___ day of _________, _________, by and between SciQuest, Inc., a Delaware corporation (“SciQuest”), and _________ (“Indemnitee”).
     RECITALS
     A. SciQuest and Indemnitee recognize the continued difficulty in obtaining liability insurance for its directors, officers, employees, stockholders, controlling persons, agents and fiduciaries, the significant increases in the cost of such insurance and the general reductions in the coverage of such insurance.
     B. SciQuest and Indemnitee further recognize the substantial increase in corporate litigation in general, subjecting directors, officers, employees, controlling persons, stockholders, agents and fiduciaries to expensive litigation risks at the same time as the availability and coverage of liability insurance has been severely limited.
     C. Indemnitee does not regard the current protection available as adequate under the present circumstances, and Indemnitee and other directors, officers, employees, stockholders, controlling persons, agents and fiduciaries of SciQuest may not be willing to serve in such capacities without additional protection.
     D. SciQuest (i) desires to attract and retain the involvement of highly qualified individuals and groups, such as Indemnitee, to serve SciQuest and, in part, in order to induce Indemnitee to be involved with SciQuest, and (ii) wishes to provide for the indemnification and advancing of expenses to Indemnitee to the maximum extent permitted by law.
     E. In view of the considerations set forth above, SciQuest desires that Indemnitee be indemnified by SciQuest as set forth herein.
     NOW THEREFORE, SciQuest and Indemnitee hereby agree as follows:
     1. Indemnification.
          (a) Indemnification of Expenses. SciQuest shall indemnify and hold harmless Indemnitee (including its respective directors, officers, general partners, limited partners, members, managing members, employees, agents and spouses, if any) and each person who controls any of them or who may be liable within the meaning of Section 15 of the Securities Act of 1933, as amended (the “Securities Act”), or Section 20 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), to the fullest extent permitted by law if Indemnitee was or is or becomes a party to or witness or other participant in, or is threatened to be made a party to or witness or other participant in, any threatened, pending or completed

 


 

action, suit, proceeding or alternative dispute resolution mechanism, or any hearing, inquiry or investigation that Indemnitee believes might lead to the institution of any such action, suit, proceeding or alternative dispute resolution mechanism, whether civil, criminal, administrative, investigative or other (hereinafter a “Claim”) by reason of (or arising in part out of) any event or occurrence related to the fact that Indemnitee is or was or may be deemed a director, officer, stockholder, employee, controlling person, agent or fiduciary of SciQuest, or any subsidiary of SciQuest, or is or was or may be deemed to be serving at the request of SciQuest as a director, officer, stockholder, employee, controlling person, agent or fiduciary of another corporation, partnership, joint venture, trust or other enterprise, or by reason of any action or inaction on the part of Indemnitee while serving in such capacity including, without limitation, any and all losses, claims, damages, expenses and liabilities, joint or several (including any investigation, legal and other expenses incurred in connection with, and any amount paid in settlement of, any action, suit, proceeding or any claim asserted) under the Securities Act, the Exchange Act or other federal or state statutory law or regulation, at common law or otherwise, which relate directly or indirectly to the registration, purchase, sale or ownership of any securities of SciQuest or to any fiduciary obligation owed with respect thereto or as a result of any claim (i) made by any stockholder of SciQuest against Indemnitee and arising out of or related to any round of financing of SciQuest, including, but not limited to, claims regarding participation, non-participation, or non-pro rata participation, in such round by such stockholder or by Indemnitee or any affiliated or related entity, (ii) made by a third party against Indemnitee based on any misstatement or omission of a material fact by SciQuest in violation of any duty of disclosure imposed on SciQuest by federal or state securities or common laws, (iii) made by a third party against Indemnitee based (in whole or in part) on, or arising in any way out of, or relating to conduct attributed to SciQuest or anyone alleged to be acting on SciQuest’s behalf, or (iv) made by a third party against Indemnitee based (in whole or in part) on, or arising in any way out of, or relating to (A) Indemnitee being an investor in SciQuest, (B) Indemnitee’s alleged participation in the management or direction of SciQuest, (C) Indemnitee’s alleged participation in providing any assistance or advice to SciQuest, or (D) Indemnitee being a person described in Section 15 of the Securities Act or Section 20 of the Exchange Act (hereinafter individually an “Indemnification Event” and collectively the “Indemnification Events”) against any and all expenses (including attorneys fees and all other costs, expenses and obligations incurred in connection with investigating, defending, being a witness in or participating in (including an appeal), or preparing to defend, be a witness in or participate in, any such action, suit, proceeding, alternative dispute resolution mechanism, hearing, inquiry or investigation), judgments, fines, penalties and amounts paid in settlement (if, and only if, such settlement is approved in advance by SciQuest, which approval shall not be unreasonably withheld) of such Claim and any federal, state, local or foreign taxes imposed on Indemnitee as a result of the actual or deemed receipt of any payments under this Agreement (collectively, hereinafter “Expenses”), including all interest, assessments and other charges paid or payable in connection with or in respect of such Expenses. Such payment of Expenses shall be made by SciQuest as soon as practicable but in any event no later than ten (10) days after written demand by the Indemnitee therefor is presented to SciQuest.
          (b) Reviewing Party. Notwithstanding the foregoing, (i) the obligations of SciQuest under Section 1(a) shall be subject to the condition that it shall not have been

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finally determined that Indemnitee would not be permitted to be indemnified under applicable law (initial determination shall be made by the Reviewing Party as defined in Section 9(f) hereof in a written opinion, in any case in which the Independent Legal Counsel as defined in Section 9(e) hereof and referred to in Section 1(e) hereof is involved), and (ii) Indemnitee acknowledges and agrees that the obligation of SciQuest to make an advance payment of Expenses to Indemnitee pursuant to Section 2(a) (an “Expense Advance”) shall be subject to the condition that, if, when and to the extent that it is so determined that Indemnitee would not be permitted to be so indemnified under applicable law, SciQuest shall be entitled to be reimbursed by Indemnitee (who hereby agrees to reimburse SciQuest) for all such amounts theretofore paid; provided, however, that if Indemnitee has commenced or thereafter commences legal proceedings in a court of competent jurisdiction to secure a determination that Indemnitee should be indemnified under applicable law, any initial determination made by the Reviewing Party that Indemnitee would not be permitted to be indemnified under applicable law shall not be binding and Indemnitee shall not be required to reimburse SciQuest for any Expense Advance until a final judicial determination is made with respect thereto (as to which all rights of appeal therefrom have been exhausted or have lapsed). Indemnitee’s obligation to reimburse SciQuest for any Expense Advance shall be unsecured and no interest shall be charged thereon. If there has not been a Change in Control (as defined in Section 9(d) hereof), the Reviewing Party shall be selected by the Board of Directors, and if there has been such a Change in Control (other than a Change in Control which has been approved by a majority of the Board of Directors who were directors immediately prior to such Change in Control), the Reviewing Party shall be the Independent Legal Counsel referred to in Section 1(e) hereof. If there has been no determination by the Reviewing Party or if the Reviewing Party determines that Indemnitee substantively would not be permitted to be indemnified in whole or in part under applicable law, Indemnitee shall have the right to commence litigation seeking an initial determination by the court or challenging any such determination by the Reviewing Party or any aspect thereof, including the legal or factual bases therefor, and SciQuest hereby consents to service of process and to appear in any such proceeding. Any determination by the Reviewing Party otherwise shall be conclusive and binding on SciQuest and Indemnitee.
          (c) Contribution. If the indemnification provided for in Section 1(a) above for any reason is held by a court of competent jurisdiction to be unavailable to Indemnitee in respect of any losses, claims, damages, expenses or liabilities referred to therein, then SciQuest, in lieu of indemnifying Indemnitee thereunder, shall contribute to the amount paid or payable by Indemnitee as a result of such losses, claims, damages, expenses or liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by SciQuest and Indemnitee, or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of SciQuest and Indemnitee in connection with the action or inaction which resulted in such losses, claims, damages, expenses or liabilities, as well as any other relevant equitable considerations. In connection with the registration of SciQuest’s securities, the relative benefits received by SciQuest and Indemnitee shall be deemed to be in the same respective proportions that the net proceeds from the offering (before deducting expenses) received by SciQuest and Indemnitee, in each case as set forth in the table on the cover page of the applicable prospectus, bear to the aggregate public offering price of the securities so offered. The relative fault of SciQuest and the Indemnitee shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or

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alleged omission to state a material fact relates to information supplied by SciQuest or Indemnitee and the parties relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. SciQuest and Indemnitee agree that it would not be just and equitable if contribution pursuant to this Section 1(c) were determined by pro rata or per capita allocation or by any other method of allocation which does not take account of the equitable considerations referred to in the immediately preceding paragraph. In connection with the registration of SciQuest’s securities, in no event shall Indemnitee be required to contribute any amount under this Section 1(c) in excess of the lesser of (i) that proportion of the total of such losses, claims, damages or liabilities indemnified against equal to the proportion of the total securities sold under such registration statement which is being sold by Indemnitee or (ii) the proceeds received by Indemnitee from its sale of securities under such registration statement. No person found guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not found guilty of such fraudulent misrepresentation.
          (d) Survival Regardless of Investigation. The indemnification and contribution provided for in this Section 1 will remain in full force and effect regardless of any investigation made by or on behalf of Indemnitee or any officer, director, general partner, limited partner, member, managing member, employee, agent or controlling person of Indemnitee.
          (e) Change in Control. SciQuest agrees that if there is a Change in Control of SciQuest (other than a Change in Control which has been approved by a majority of the Board of Directors who were directors immediately prior to such Change in Control) then, with respect to all matters thereafter arising concerning the rights of Indemnitee to payments of Expenses or an Expense Advance under this Agreement or any other agreement or under the Certificate or Bylaws as now or hereafter in effect, Independent Legal Counsel (as defined in Section 9(e) hereof) shall be selected by Indemnitee and approved by SciQuest (which approval shall not be unreasonably withheld). Such counsel, among other things, shall render its written opinion to SciQuest and Indemnitee as to whether and to what extent Indemnitee would be permitted to be indemnified under applicable law. SciQuest agrees to abide by such opinion and to pay the reasonable fees of the Independent Legal Counsel referred to above and to fully indemnify such counsel against any and all expenses (including attorneys fees), claims, liabilities and damages arising out of or relating to this Agreement or its engagement pursuant hereto.
          (f) Mandatory Payment of Expenses. Notwithstanding any other provision of this Agreement, to the extent that Indemnitee has been successful on the merits or otherwise, including, without limitation, the dismissal of an action without prejudice, in the defense of any action, suit, proceeding, inquiry or investigation referred to in Section 1(a) hereof or in the defense of any claim, issue or matter therein, Indemnitee shall be indemnified against all Expenses incurred by Indemnitee in connection herewith.
     2. Expenses; Indemnification Procedure.
          (a) Advancement of Expenses. SciQuest shall advance all Expenses incurred by Indemnitee. The advances to be made hereunder shall be paid by SciQuest to Indemnitee

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as soon as practicable but in any event no later than fifteen (15) days after written demand by Indemnitee therefor to SciQuest.
          (b) Notice/Cooperation by Indemnitee. Indemnitee shall give SciQuest notice as soon as practicable of any Claim made against Indemnitee for which indemnification will or could be sought under this Agreement. Notice to SciQuest shall be directed to the Chief Executive Officer of SciQuest at the address shown on the signature page of this Agreement (or such other address as SciQuest shall designate in writing to Indemnitee).
          (c) No Presumptions; Burden of Proof. For purposes of this Agreement, the termination of any Claim by judgment, order, settlement (whether with or without court approval) or conviction, or upon a plea of nolo contendere, or its equivalent, shall not create a presumption that Indemnitee did not meet any particular standard of conduct or have any particular belief or that a court has determined that indemnification is not permitted by applicable law. In addition, neither the failure of the Reviewing Party or the Independent Legal Counsel to have made a determination as to whether Indemnitee has met any particular standard of conduct or had any particular belief, nor an actual determination by the Reviewing Party or the Independent Legal Counsel that Indemnitee has not met such standard of conduct or did not have such belief, prior to the commencement of legal proceedings by Indemnitee to secure a judicial determination, that Indemnitee should be indemnified under applicable law, shall be a defense to Indemnitee’s claim or create a presumption that Indemnitee has not met any particular standard of conduct or did not have any particular belief. In connection with any determination by the Reviewing Party, Independent Legal Counsel or otherwise as to whether Indemnitee is entitled to be indemnified hereunder, the burden of proof shall be on SciQuest, as the case may be, to establish that Indemnitee is not so entitled.
          (d) Notice to Insurers. If, at the time of the receipt by SciQuest of a notice of a Claim pursuant to Section 2(b) hereof, SciQuest has liability insurance in effect which may cover such Claim, SciQuest shall give prompt written notice of the commencement of such Claim to the insurers in accordance with the procedures set forth in each of the policies. SciQuest shall thereafter take all necessary or desirable action to cause such insurers to pay, on behalf of Indemnitee, all amounts payable as a result of such action, suit, proceeding, inquiry or investigation in accordance with the terms of such policies.
          (e) Selection of Counsel. In the event SciQuest shall be obligated hereunder to pay the Expenses or Expense Advance of any Claim, SciQuest shall be entitled to assume the defense of such Claim, with counsel reasonably approved by Indemnitee, upon the delivery to Indemnitee of written notice of its election to do so. After delivery of such notice, approval of such counsel by Indemnitee and the retention of such counsel by SciQuest, SciQuest will not be liable to Indemnitee under this Agreement for any fees of counsel subsequently incurred by Indemnitee with respect to the same Claim; provided that, (i) Indemnitee shall have the right to employ Indemnitee’s own counsel in any such Claim at Indemnitee’s expense; (ii) Indemnitee shall have the right to employ Indemnitee’s own

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counsel in connection with any such proceeding, at the expense of SciQuest, if such counsel serves in a review, observer, advice and counseling capacity and does not otherwise materially control or participate in the defense of such proceeding; and (iii) if either (A) the employment of counsel by Indemnitee has been previously authorized by SciQuest, (B) Indemnitee shall have reasonably concluded that there is a conflict of interest between SciQuest and Indemnitee in the conduct of any such defense, or (C) SciQuest shall not continue to retain such counsel to defend such Claim, then the fees and expenses of Indemnitee’s counsel shall be at the expense of SciQuest.
     3. Additional Indemnification Rights; Nonexclusivity.
          (a) Scope. SciQuest hereby agrees to indemnify Indemnitee to the fullest extent permitted by law, even if such indemnification is not specifically authorized by the other provisions of this Agreement or any other agreement, SciQuest’s Certificate, its Bylaws, or by statute. In the event of any change after the date of this Agreement in any applicable law, statute or rule which expands the right of a Delaware corporation to indemnify a member of its board of directors or an officer, stockholder, employee, controlling person, agent or fiduciary, it is the intent of the parties hereto that Indemnitee shall enjoy by this Agreement the greater benefits afforded by such change. In the event of any change in any applicable law, statute or rule which narrows the right of a Delaware corporation to indemnify a member of its board of directors or an officer, stockholder, employee, agent or fiduciary, such change, to the extent not otherwise required by such law, statute or rule to be applied to this Agreement, shall have no effect on this Agreement or the parties’ rights and obligations hereunder. SciQuest and Indemnitee acknowledge that in certain instances, federal law or applicable public policy may prohibit SciQuest from indemnifying its directors, officers, stockholders, employees, controlling persons, agents or fiduciaries under this Agreement or otherwise.
          (b) Nonexclusivity. The indemnification provided by this Agreement shall be in addition to any rights to which Indemnitee may be entitled under SciQuest’s Certificate, its Bylaws, any agreement, any vote of stockholders or disinterested directors, the laws of the State of California or the State of Delaware, or otherwise. The indemnification provided under this Agreement shall continue as to Indemnitee for any action Indemnitee took or did not take while serving in an indemnified capacity even though Indemnitee may have ceased to serve in such capacity, and such indemnification shall inure to the benefit of Indemnitee from and after Indemnitee’s first day of service as a director or officer with SciQuest or affiliation with a director or officer from and after the date such director or officer commences services as a director or officer with SciQuest.
     4. No Duplication of Payments. SciQuest shall not be liable under this Agreement to make any payment in connection with any Claim made against Indemnitee to the extent Indemnitee has otherwise actually received payment (under any insurance policy, the Certificate, the Bylaws or otherwise) of the amounts otherwise indemnifiable hereunder.
     5. Partial Indemnification. If Indemnitee is entitled under any provision of this Agreement to indemnification by SciQuest for any portion of Expenses incurred in connection with any Claim, but not, however, for all of the total amount thereof, SciQuest

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shall nevertheless indemnify Indemnitee for the portion of such Expenses to which such Indemnitee is entitled.
     6. Liability Insurance. To the extent SciQuest maintains liability insurance applicable to directors, officers, stockholders, employees, controlling persons, agents or fiduciaries, Indemnitee shall be covered by such policies in such a manner as to provide Indemnitee the same rights and benefits as are accorded to the most favorably insured of SciQuest’s directors, if such Indemnitee is a director, or of SciQuest’s officers, if such Indemnitee is not a director of SciQuest but is an officer, or of SciQuest’s key employees, controlling persons, agents or fiduciaries, if Indemnitee is not an officer or director but is a key employee, agent, controlling person, or fiduciary.
     7. Exceptions. Notwithstanding any other provision herein to the contrary, SciQuest shall not be obligated pursuant to the terms of this Agreement:
          (a) Claims Initiated by Indemnitee. To indemnify or advance expenses to Indemnitee with respect to Claims initiated or brought voluntarily by Indemnitee and not by way of defense, except (i) with respect to actions or proceedings to establish or enforce a right to indemnification under this Agreement or any other agreement or insurance policy or under the Certificate or Bylaws now or hereafter in effect relating to Claims for Indemnifiable Events, (ii) in specific cases if the Board of Directors has approved the initiation or bringing of such Claim, or (iii) as otherwise required under Delaware statute or law, regardless of whether Indemnitee ultimately is determined to be entitled to such indemnification, advance expense payment or insurance recovery, as the case may be; or
          (b) Claim Under Section 16(b). To indemnify Indemnitee for expenses and the payment of profits arising from the purchase and sale by Indemnitee of securities in violation of Section 16(b) of the Exchange Act or any similar successor statute; or
          (c) Unlawful Indemnification. To indemnify an Indemnitee if a final decision by a court having jurisdiction in the matter shall determine that such indemnification is not lawful.
     8. Period of Limitations. No legal action shall be brought and no cause of action shall be asserted by or in the right of SciQuest against Indemnitee, Indemnitee’s estate, spouse, heirs, executors or personal or legal representatives after the expiration of five (5) years from the date of accrual of such cause of action, and any claim or cause of action of SciQuest shall be extinguished and deemed released unless asserted by the timely filing of a legal action within such five (5) year period; provided, however, that if any shorter period of limitations is otherwise applicable to any such cause of action, such shorter period shall govern.
     9. Construction of Certain Phrases.
          (a) For purposes of this Agreement, references to the “Board of Directors” shall mean the Board of Directors of SciQuest.
          (b) For purposes of this Agreement, references to “SciQuest” shall include, in

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addition to the resulting corporation, any constituent corporation (including any constituent of a constituent) absorbed in a consolidation or merger which, if its separate existence had continued, would have had power and authority to indemnify its directors, officers, stockholders, employees, agents or fiduciaries, so that if Indemnitee is or was or may be deemed a director, officer, stockholder, employee, agent, controlling person, or fiduciary of such constituent corporation, or is or was or may be deemed to be serving at the request of such constituent corporation as a director, officer, stockholder, employee, controlling person, agent or fiduciary of another corporation, partnership, joint venture, employee benefit plan, trust or other enterprise, Indemnitee shall stand in the same position under the provisions of this Agreement with respect to the resulting or surviving corporation as Indemnitee would have with respect to such constituent corporation if its separate existence had continued.
          (c) For purposes of this Agreement, references to “other enterprises” shall include employee benefit plans; references to “fines” shall include any excise taxes assessed on Indemnitee with respect to an employee benefit plan; and references to “serving at the request of SciQuest” shall include any service as a director, officer, stockholder, employee, agent or fiduciary of SciQuest which imposes duties on, or involves services by, such director, officer, stockholder, employee, agent or fiduciary with respect to an employee benefit plan, its participants or its beneficiaries; and if Indemnitee acted in good faith and in a manner Indemnitee reasonably believed to be in the interest of the participants and beneficiaries of an employee benefit plan, Indemnitee shall be deemed to have acted in a manner “not opposed to the best interests of SciQuest” as referred to in this Agreement.
          (d) For purposes of this Agreement a “Change in Control” shall be deemed to have occurred if (i) any “person” (as such term is used in Section 13(d)(3) and 14(d)(2) of the Exchange Act), other than a trustee or other fiduciary holding securities under an employee benefit plan of SciQuest or a corporation owned directly or indirectly by the stockholders of SciQuest in substantially the same proportions as their ownership of stock of SciQuest, (A) who is or becomes the “beneficial owner” (as defined in Rule 13d-3 under said Exchange Act), directly or indirectly, of securities of SciQuest representing twenty percent (20%) or more of the combined voting power of the SciQuest’s then outstanding Voting Securities, increases its beneficial ownership of such securities by five percent (5%) or more over the percentage so owned by such person, or (B) becomes the “beneficial owner” (as defined in Rule 13d-3 under said Exchange Act), directly or indirectly, of securities of SciQuest representing more than thirty percent (30%) of the total voting power represented by the SciQuest’s then outstanding Voting Securities, (ii) during any period of two (2) consecutive years, individuals who at the beginning of such period constitute the Board of Directors of SciQuest and any new director whose election by the Board of Directors or combination for election by SciQuest’s stockholders was approved by a vote of at least two-thirds (2/3) of the directors then still in office who either were directors at the beginning of the period or whose election or nomination for election was previously so approved, cease for any reason to constitute a majority thereof, or (iii) the stockholders of SciQuest approve a merger or consolidation of SciQuest with any other corporation other than a merger or consolidation which would result in the Voting Securities of SciQuest outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into Voting Securities of the surviving entity) at least two-thirds (2/3) of the total voting power represented by the Voting Securities of SciQuest or such surviving entity

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outstanding immediately after such merger or consolidation, or the stockholders of SciQuest approve a plan of complete liquidation of SciQuest or an agreement for the sale or disposition by SciQuest of (in one transaction or a series of transactions) all or substantially all of SciQuest’s assets.
          (e) For purposes of this Agreement, "Independent Legal Counsel” shall mean an attorney or firm of attorneys, selected in accordance with the provisions of Section 1(e) hereof, who shall not have otherwise performed services for SciQuest or Indemnitee within the last three (3) years (other than with respect to matters concerning the right of Indemnitee under this Agreement, or of other indemnitees under similar indemnity agreements).
          (f) For purposes of this Agreement, a “Reviewing Party” shall mean any appropriate person or body consisting of a member or members of the Board of Directors or any other person or body appointed by the Board of Directors who is not a party to the particular Claim for which Indemnitee is seeking indemnification or Independent Legal Counsel.
          (g) For purposes of this Agreement, “Voting Securities” shall mean any securities of SciQuest that vote generally in the election of directors.
          (h) For purposes of this Agreement, “stockholder” shall include any holder of any capital stock of SciQuest and an affiliate thereof.
          (i) For purposes of this Agreement, “affiliate” shall include any limited partner, general partner, or any member or managing member of such general partner.
          (j) For purposes of this Agreement, “Certificate” shall mean the Certificate of Incorporation of SciQuest, as amended and/or restated, and in effect from time to time.
     10. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall constitute an original.
     11. Binding Effect; Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of and be enforceable by the parties hereto and their respective successors, assigns, including any direct or indirect successor by purchase, merger, consolidation or otherwise to all or substantially all of the business and/or assets of SciQuest, partnership, spouses, heirs, and personal and legal representatives. SciQuest shall require and cause any successor (whether direct or indirect by purchase, merger, consolidation or otherwise) to all, substantially all, or a substantial part, of the business and/or assets of SciQuest, by written agreement in form and substance satisfactory to Indemnitee, expressly to assume and agree to perform this Agreement in the same manner and to the same extent that SciQuest would be required to perform if no such succession had taken place. This Agreement shall continue in effect with respect to Claims relating to Indemnifiable Events regardless of whether Indemnitee continues to serve as a director, officer, employee, agent, controlling person, or fiduciary of SciQuest or of any other enterprise, including subsidiaries of SciQuest, at SciQuest’s request.

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     12. Attorneys Fees. In the event that any action is instituted by Indemnitee under this Agreement or under any liability insurance policies maintained by SciQuest to enforce or interpret any of the terms hereof or thereof, Indemnitee shall be entitled to be paid all Expenses incurred by Indemnitee with respect to such action, regardless of whether Indemnitee is ultimately successful in such action, and shall be entitled to the advancement of Expenses with respect to such action, unless, as a part of such action, a court of competent jurisdiction over such action determines that each of the material assertions made by Indemnitee as a basis for such action was not made in good faith or was frivolous. In the event of an action instituted by or in the name of SciQuest under this Agreement to enforce or interpret any of the terms of this Agreement, Indemnitee shall be entitled to be paid all Expenses incurred by Indemnitee in defense of such action (including costs and expenses incurred with respect to Indemnitee counterclaims and cross-claims made in such action), and shall be entitled to the advancement of Expenses with respect to such action.
     13. Notice. All notices and other communications required or permitted hereunder shall be in writing; shall be effective when given, and shall in any event be deemed to be given (a) five (5) days after deposit with the U.S. Postal Service or other applicable postal service, if delivered by first class mail, postage prepaid, (b) upon delivery, if delivered by hand, (c) one business day after the business day of deposit with federal Express or similar overnight courier, freight prepaid, or (d) one day after the business day of delivery by facsimile transmission, if deliverable by facsimile transmission, with copy by first class mail, postage prepaid, and shall be addressed, if to Indemnitee, to Indemnitee’s address as shown in the records of SciQuest, and, if to SciQuest, at the address of its principal corporate offices (attention: corporate secretary), or at such other address as such party may designate by ten (10) days advance written notice to the other parties hereto.
     14. Consent to Jurisdiction. SciQuest and Indemnitee hereby irrevocably consent to the jurisdiction and venue of the courts of the State of Delaware for all purposes in connection with any action or proceeding which arises out of or relates to this Agreement and agree that any action instituted under this Agreement shall be commenced, prosecuted and continued only in the courts of the State of Delaware.
     15. Severability. The provisions of this Agreement shall be severable in the event that any of the provisions hereof (including any provision within a single section, paragraph or sentence) are held by a court of competent jurisdiction to be invalid, void or otherwise unenforceable, and the remaining provisions shall remain enforceable to the fullest extent permitted by law. Furthermore, to the fullest extent possible, the provisions of this Agreement (including, without limitations, each portion of this Agreement containing any provision held to be invalid, void or otherwise unenforceable, that is not itself invalid, void or unenforceable) shall be construed so as to give effect to the extent manifested by the provision held invalid, illegal or unenforceable.
     16. Choice of Law. This Agreement shall be governed by and its provisions construed and enforced in accordance with the laws of the State of Delaware, as applied to contracts between Delaware residents, entered into and to be performed entirely within the State of Delaware, without regard to the conflict of laws principles thereof.

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     17. Subrogation. In the event of payment under this Agreement, SciQuest shall be subrogated to the extent of such payment to all of the rights of recovery of Indemnitee who shall execute all documents required and shall do all acts that may be necessary to secure such rights and to enable SciQuest effectively to bring suit to enforce such rights.
     18. Amendment and Termination. No amendment, modification, termination or cancellation of this Agreement shall be effective unless it is in writing signed by the parties to be bound thereby. Notice of same shall be provided to all parties hereto. No waiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver of any other provisions hereof (whether or not similar) nor shall such waiver constitute a continuing waiver.
     19. No Construction as Employment Agreement. Nothing contained in this Agreement shall be construed as giving Indemnitee any right to be retained in the employ of SciQuest or any of its subsidiaries.
     20. Corporate Authority. The Board of Directors of SciQuest has approved the terms of this Agreement in accordance with Delaware law.
(THIS SPACE INTENTIONALLY LEFT BLANK)

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     IN WITNESS WHEREOF, the parties hereto have executed this Agreement on and as of the day and year first above written.
         
  SCIQUEST, INC.
 
 
  By:      
    Stephen J. Wiehe   
    President and Chief Executive Officer   
       
    Address:  6501 Weston Parkway, Suite 200    
      Cary, North Carolina 27513   
 
AGREED TO AND ACCEPTED:
“Indemnitee”
_________________________

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