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EXHIBIT 2.01
AGREEMENT AND PLAN OF REORGANIZATION
THIS AGREEMENT AND PLAN OF REORGANIZATION (this "AGREEMENT") is made and
entered into as of May 26, 1999 (the "AGREEMENT DATE") by and among Concur
Technologies, Inc., a Delaware corporation ("CONCUR"), ConStar Acquisition
Corp., a Delaware corporation that is a wholly-owned subsidiary of Concur
("SUB"), and Seeker Software, Inc., a Delaware corporation (the "COMPANY").
RECITALS
A. The parties intend that, subject to the terms and conditions of this
Agreement, Sub will be merged with and into the Company in a reverse triangular
merger, with the Company to be the surviving corporation of such merger, all
pursuant to the terms and conditions of this Agreement and applicable law. The
parties also intend for such merger to qualify as a "pooling of interests"
transaction for accounting and financial reporting purposes and to be treated as
a "reorganization" under Section 368(a)(1)(A) of the Internal Revenue Code of
1986, as amended (the "CODE"), by virtue of the provisions of Section
368(a)(2)(E) of the Code.
B. Upon the effectiveness of such merger, the capital stock of the
Company that is outstanding immediately prior to the effectiveness of the merger
will be converted into shares of the Common Stock of Concur (plus cash for any
eliminated fractional shares), the employee stock options to purchase shares of
the Company's Common Stock granted under the Company's 1997 Stock Incentive Plan
that are outstanding immediately prior to the effectiveness of the Merger will
be assumed by Concur and converted into options to purchase shares of Concur
Common Stock and Sub will be merged with and into the Company, all as provided
in this Agreement.
NOW, THEREFORE, in consideration of the above-recited facts and the
mutual promises, covenants and conditions contained herein, the parties hereby
agree as follows:
ARTICLE 1
CERTAIN DEFINITIONS
As used in this Agreement, the following terms will have the meanings
set forth below:
1.1 The "MERGER" means the statutory merger of Sub with and into the
Company to be effected pursuant to the terms and conditions of this Agreement.
1.2 The "EFFECTIVE TIME" means the time and date on which the Merger
first becomes legally effective under the laws of the State of Delaware as a
result of the filing with the Delaware Secretary of State of an Agreement of
Merger between Sub and the Company (the "AGREEMENT OF MERGER") and any required
officers' certificates or, in lieu thereof at Concur's option, a Certificate of
Merger (the "CERTIFICATE OF MERGER"), conforming to the requirements of Section
252 of the Delaware General Corporation Law.
1.3 The "CLOSING" and the "CLOSING DATE" have the meanings set forth in
Section 7.1.
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1.4 "CONCUR COMMON STOCK" means Concur's Common Stock, $0.001 par value
per share.
1.5 "COMPANY COMMON STOCK" means the Company's Common Stock.
1.6 "COMPANY PREFERRED STOCK" means the Company's Series A Preferred
Stock, Series B Preferred Stock and Series C Preferred Stock.
1.7 "COMPANY OPTIONS" means options to purchase shares of Company Common
Stock granted by the Company to Company employees under the Company's 1997 Stock
Incentive Plan (the "COMPANY OPTION PLAN").
1.8 "COMPANY DERIVATIVE SECURITIES" means (a) any warrant, option, right
or other security that entitles the holder thereof to purchase or otherwise
acquire any shares of the capital stock of the Company or any outstanding
employment offer letter indicating that the Company will grant any option or
other right to acquire shares of the Company's capital stock, or any obligation
or contingent obligation to grant any such option or right (collectively,
"COMPANY STOCK RIGHTS"); (b) any note, evidence of indebtedness, stock or other
security of the Company that is convertible into or exchangeable for any shares
of the capital stock of the Company or any Company Stock Rights ("COMPANY
CONVERTIBLE SECURITY"); and (c) any warrant, option, right, note, evidence of
indebtedness, stock or other security that entitles the holder thereof to
purchase or otherwise acquire any Company Stock Rights or any Company
Convertible Security; provided, however, that the term "Company Derivative
Securities" does not include any of the shares of Company Preferred Stock or any
of the Company Options or Company Warrants.
1.9 "NUMBER OF COMPANY FULLY DILUTED SHARES" means that number of shares
of Company Common Stock that is equal to the sum of: (a) the total number of
shares of Company Common Stock that are issued and outstanding immediately prior
to the Effective Time; plus (b) the total number of shares of Company Common
Stock subject to issuance upon the conversion of all shares of Company Preferred
Stock that are issued and outstanding immediately prior to the Effective Time;
plus (c) the total number of shares of Company Common Stock issuable upon the
conversion of all shares of Company Preferred Stock that are issuable upon the
exercise of all Company Warrants that are issued and outstanding immediately
prior to the Effective Time; plus (d) the total number of shares of Company
Common Stock issuable upon the exercise of all Company Options that are issued
and outstanding immediately prior to the Effective Time; plus (e) the total
number of shares of Company Common Stock that, immediately prior to the
Effective Time, are, directly or indirectly, ultimately or potentially issuable
by the Company upon the exercise, conversion or exchange of all Company
Derivative Securities (if any) that are issued and outstanding immediately prior
to the Effective Time.
1.10 "EXCHANGE RATIO" means the fraction to the fourth decimal point
resulting from dividing (a) the sum of (i) 4,110,000 shares of Concur Common
Stock plus (ii) the quotient of the Aggregate Exercise Amount divided by the
Concur Closing Average Price Per Share less (iii) the quotient of the (A) amount
by which the financial advisor fees referred to in Schedule 3.18 exceed
$3,000,000 divided by (B) the Concur Closing Average Price Per Share, and less
(iv) the quotient of $210,000 divided by the Concur Closing Average Price Per
Share, by (b) the Number of Company Fully Diluted Shares.
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1.11 "AGGREGATE EXERCISE AMOUNT" means the total amount of the exercise
prices of all Company Options and Company Warrants outstanding immediately prior
to the Effective Time.
1.12 "CONCUR CLOSING AVERAGE PRICE PER SHARE" means the average of the
closing prices per share of Concur Common Stock as quoted on the Nasdaq National
Market, and reported in The Wall Street Journal for the five trading days
immediately preceding (but not including) the Closing Date.
1.13 "COMPANY STOCKHOLDERS" means those persons (each being individually
referred to herein as a "COMPANY STOCKHOLDER") who, immediately prior to the
Effective Time, hold the shares of Company Common Stock or Company Preferred
Stock that are outstanding immediately prior to the Effective Time; provided,
however, that for purposes of Section 2.1.5, Section 2.1.6, Section 2.4 and
Section 11 of this Agreement, the term "Company Stockholders" means only those
Company Stockholders (as defined above in this Section) who are issued shares of
Concur Common Stock in the Merger. "PRINCIPAL COMPANY STOCKHOLDERS" means those
Company Stockholders, or holders of Company Options or Company Warrants, who are
listed in Schedule 1.13 hereto.
1.14 "COMPANY DISSENTING SHARES" means any shares of any capital stock
of the Company that (i) are outstanding immediately prior to the Effective Time
and are then held by Company Stockholders who are entitled to appraisal rights
under applicable law in connection with the Merger.
1.15 "CONCUR ANCILLARY AGREEMENTS" means, collectively, each agreement,
certificate or document (other than this Agreement) which Concur is to enter
into as a party thereto, or otherwise is to execute and deliver, pursuant to or
in connection with this Agreement. "SUB ANCILLARY AGREEMENTS" means the
Agreement of Merger, if any, and each other agreement, certificate or document
(other than this Agreement) which Sub is to enter into as a party thereto, or
otherwise is to execute and deliver, pursuant to or in connection with this
Agreement. "COMPANY ANCILLARY AGREEMENTS" means each agreement, certificate or
document (other than this Agreement) which the Company is to enter into as a
party thereto, or otherwise is to execute and deliver, pursuant to or in
connection with this Agreement. "PRINCIPAL COMPANY STOCKHOLDER ANCILLARY
AGREEMENTS" means each agreement, certificate or document that any Principal
Company Stockholder is to enter into as a party thereto, or otherwise is to
execute and deliver, pursuant to or in connection with this Agreement, and
includes, without limitation, each of the following agreements to be entered
into and executed by each Principal Company Stockholder hereunder: the Escrow
Agreement, the Shelf Registration Rights Agreement, the Amended and Restated
Registration Rights Agreement, the Company Stockholder Consent, the Company
Affiliate Agreement and the Non-Competition Agreement (each as hereafter
defined).
Other capitalized terms defined elsewhere in this Agreement and not
defined in this Article I will have the meanings assigned to such terms in this
Agreement.
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ARTICLE 2
PLAN OF REORGANIZATION
2.1 Conversion of Shares.
2.1.1 Conversion of Sub Stock. At the Effective Time, each share
of the Common Stock of Sub that is issued and outstanding immediately prior to
the Effective Time will, by virtue of the Merger and without the need for any
further action on the part of the holder thereof, be converted into and become
one share of Company Common Stock that is issued and outstanding immediately
after the Effective Time, and the shares of Company Common Stock into which the
shares of Sub Common Stock are so converted in the Merger will be the only
shares of capital stock of the Company that are issued and outstanding
immediately after the Effective Time.
2.1.2 Conversion of Company Stock. At the Effective Time, (a)
each share of Company Common Stock that is issued and outstanding immediately
prior to the Effective Time (other than any Company Dissenting Shares as
provided in Section 2.1.3) will, by virtue of the Merger, be converted into a
number of shares of Concur Common Stock that is equal to the Exchange Ratio, (b)
each share of Company Preferred Stock that is issued and outstanding immediately
prior to the Effective Time (other than any Company Dissenting Shares as
provided in Section 2.1.3) will, by virtue of the Merger, be converted into a
number of shares of Concur Common Stock that is equal to (i) the number of
shares of Company Common Stock subject to issuance immediately before the
Effective Time upon the conversion of such share of Company Preferred Stock
times (ii) the Exchange Ratio, and (c) each Company Warrant outstanding
immediately prior to the Effective Time will, by virtue of the Merger, be
converted into a number of shares of Concur Common Stock that is equal to (i)
the number of shares of Company Common Stock subject to issuance upon the
exercise of the Company Warrant times the Exchange Ratio less (ii) a number
equal to the aggregate amount payable upon exercise of the Company Warrant
divided by the Concur Closing Average Price Per Share; subject in each case to
the provisions of Section 2.1.4 regarding the elimination of fractional shares.
2.1.3 Company Dissenting Shares. Holders of Company Dissenting
Shares (if any) will be entitled to their appraisal rights under applicable law,
and such Company Dissenting Shares will not be converted into shares of Concur
Common Stock in the Merger; provided, however, that any Company Dissenting
Shares that are outstanding immediately prior to the Effective Time of the
Merger will be converted into Concur Common Stock as provided in Section 2.1.2
when such appraisal rights can no longer be legally exercised with respect to
such Company Dissenting Shares.
2.1.4 Fractional Shares. No fractional shares of Concur Common
Stock will be issued in connection with the Merger. In lieu thereof, each holder
of Company Common Stock, Company Preferred Stock or Company Warrants who would
otherwise be entitled to receive a fraction of a share of Concur Common Stock
pursuant to Section 2.1.2, after aggregating all shares of Concur Common Stock
to be received by such holder pursuant to Section 2.1.2, will instead receive
from Concur or its transfer agent, promptly after the Effective Time in
accordance with Section 7.2.1, an amount of cash equal to the product obtained
by multiplying (i) the Concur Closing Average Price Per Share by (ii) the
fraction of a share of Concur Common Stock that such holder would otherwise be
entitled to receive.
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2.1.5 Shelf Registration. The parties agree that the issuance of
shares of Concur Common Stock pursuant to Section 2.1.2 or 2.1.3 will not be
registered under the Securities Act of 1933, as amended (the "1933 ACT"), or
under applicable state securities laws, in reliance on the exemption provided
under Rule 506 promulgated by the Securities and Exchange Commission (the "SEC")
under the 1933 Act and on related exemptions under such state securities laws
with respect to the issuance of such shares as of the Closing Date. Concur will,
not later than 20 days after the Closing Date, file a registration statement
with the SEC for the resale of such shares by the Company Stockholders; and
Concur will use its best efforts to cause such registration statement to be
declared effective on or before July 26, 1999 or as soon thereafter as is
practicable. Concur will use its best efforts to maintain the effectiveness of
such registration statement (or any appropriate replacement registration
statement) until the first anniversary of the Closing Date. Concur will grant to
each Company Stockholder who receives shares of Concur Common Stock pursuant to
Section 2.1.2 or 2.1.3 the right to register and sell such shares pursuant to
such registration statement on the terms, and subject to the conditions and
limitations, of a Shelf Registration Agreement in substantially the form set
forth in Exhibit A hereto (the "SHELF REGISTRATION AGREEMENT") that Concur will
enter into with any Company Stockholders; it is provided, however, that only
Company Stockholders who enter into and comply with the Shelf Registration
Agreement (and their permitted transferees under such agreement) will be
entitled to sell shares of Concur Common Stock under such registration
statement.
2.1.6 Other Registration Rights. The Company will enter into a
Third Amended and Restated Registration Rights Agreement in substantially the
form set forth in Exhibit B, hereto (the "AMENDED AND RESTATED REGISTRATION
RIGHTS AGREEMENT"), whereby the Company's Second Amended and Restated
Registration Rights Agreement (the "CURRENT REGISTRATION RIGHTS AGREEMENT") will
be further amended and restated to provide that, for the period commencing with
the Closing Date and ending on the first anniversary thereof, the Principal
Company Stockholders who elect to enter into such agreement will have the same
registration rights as the other holders of "Registrable Securities" thereunder.
2.2 Assumption and Conversion of Company Options.
2.2.1 Assumption by Concur. Each Company Option that is
outstanding immediately prior to the Effective Time will, by virtue of the
Merger and at the Effective Time and without the need for any further action on
the part of any holder thereof, be converted into an option under Concur's 1998
Equity Incentive Plan (a "CONCUR OPTION") to purchase that number of shares of
Concur Common Stock determined by multiplying the number of shares of Company
Common Stock subject to such Company Option immediately prior to the Effective
Time by the Exchange Ratio, at an exercise price per share of Concur Common
Stock equal to the exercise price per share of Company Common Stock that was in
effect for such Company Option immediately prior to the Effective Time divided
by the Exchange Ratio; provided, however, that if the foregoing calculation
would result in a Company Option being converted into a Concur Option that,
after aggregating all the shares of Concur Common Stock issuable upon the
exercise of such Concur Option, would be exercisable for a fraction of a share
of Concur Common Stock, then the number of shares of Concur Common Stock subject
to such Concur Option will be rounded to the nearest whole number of shares of
Concur Common Stock. The terms, exercisability, vesting schedule, status as an
"incentive stock option" under Section 422 of the Code (if applicable) or as a
nonqualified stock option, and all other terms and conditions of each Company
Option (including
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but not limited to the provisions of the Company Option Plan that form part of
the terms and conditions of such Company Option) that is converted into a Concur
Option in the Merger will, to the extent permitted by law and otherwise
reasonably practicable (and except as otherwise provided in the terms of such
Company Options), be unchanged and continue in effect after the Merger;
provided, however, that each Concur Option will be subject to the Resale
Restrictions provided for in Section 2.2.3 and the Escrow Condition provided for
in Section 2.4. Continuous employment service with the Company prior to the
Merger will be credited to each holder of a Company Option for purposes of
applying any vesting schedule contained in a Company Option to determine the
number of shares of Concur Common Stock that are exercisable under the Concur
Option into which such Company Option is converted in the Merger.
2.2.2 Registration. Since, as provided in Section 2.2.1, the
Concur Options will, upon the Effective Time, be issued and outstanding under
Concur's 1998 Equity Incentive Plan, and since all options issued by Concur
under such plan and the shares of Concur Common Stock that are issued upon
exercise of such options are registered on the Company's currently-effective
registration statement on Form S-8 under the 1933 Act, the Concur Options and
the shares that are subject to issuance upon the exercise of Concur Options
under Section 2.2.1 will be registered under that registration statement at the
effective time. Concur, as soon as after the Effective Time, and will use its
best efforts to maintain the effectiveness of such Form S-8 registration
statement or registration statements for so long as such Concur Options remain
outstanding and Concur Common Stock is registered under the Securities Exchange
Act of 1934, as amended (the "1934 ACT").
2.2.3 Resale Restriction. Notwithstanding the registration on
Form S-8 (the S-8 REGISTRATION") of the shares of Concur Common Stock that may
be issued upon exercise of any Concur Options ("OPTION SHARES") as provided in
Section 2.2.2, each person who purchases Option Shares upon the exercise of a
Concur Option (a "HOLDER") will not sell any Option Shares under the S-8
Registration except in compliance with the following restrictions (the "RESALE
RESTRICTIONS"):
(a) No sales of Option Shares will be made under the S-8
Registration (i) until the shelf registration statement (the "SHELF REGISTRATION
STATEMENT") to be filed by Concur pursuant to the Shelf Registration Agreement
becomes effective (the "DATE OF EFFECTIVENESS") or (ii) if the use of the Shelf
Registration Statement is suspended, during the period of such suspension.
(b) During the period commencing with the Date of
Effectiveness and ending on the date on which the Shelf Registration Statement
is required to remain effective under the Shelf Registration Agreement (the
"REGISTRATION PERMIT"), sales of Options Shares under the S-8 Registration will
be made in only in compliance with the following trading limits:
(i) During the Registration Period, all sales of
Option Shares by any Holder under the S-8 Registration in excess of 1,000 Option
Shares in any calendar week will be made by such Holder through BancBoston
Robertson Stephens Inc., Hambrecht & Quist LLC or U.S. Bancorp Piper Jaffray
Inc. or any broker (if other than any of the foregoing) that is one of the three
largest market makers in Concur Common Stock (in volume of market making
transactions) during the 90 days immediately preceding such calendar week.
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(ii) During the Registration Period, no Option Shares
will be sold by any Holder under the S-8 Registration in excess of the
following:
(A) During the 90 day period commencing with the
Date of Effectiveness (the "INITIAL PERIOD"), each Holder will not sell any
Option Shares in excess of 15% of the total number of shares subject to issuance
upon the exercise of Concur Options that such Holder held at the Effective Time,
whether such options were vested or unvested) (such total number is referred to
as the Holder's "ORIGINAL NUMBER"); provided, however, that during the Initial
Period any Holder (an "ASSIGNOR") may assign (by written assignment) to any
other Holders (each an "ASSIGNEE") all or any portion of the right that the
Assignor would otherwise have had under this subpart (A) to sell Option Shares
during the Initial Period, thereby permitting the Assignee to sell during the
Initial Period under this subpart (A) an additional number of Option Shares held
by the Assignee equal to the number of Option Shares as the Assignor which
assigned such right; Assignor and Assignee will be responsible for giving notice
of such assignment (and a copy thereof) to Concur in advance of any sale of
Option Shares pursuant thereto; such assignment will not be effective, and no
sale of Option Shares will be made pursuant thereto, until Concur has received
such notice (and a copy of such assignment).
(B) During the 90 day period immediately
following the Initial Period (the "SECOND PERIOD"), each Holder may sell
additional Registrable Securities under the Shelf Registration up to maximum of
(1) 15% of the Holder's Original Number plus (2) any number which such Holder
was permitted to sell, but did not sell or assign the right to sell, during the
Initial Period.
(C) During the 90 day period immediately
following the Second Period (the "THIRD PERIOD"), each Holder may sell
additional Registrable Securities under the Shelf Registration up to maximum of
(1) 10% of the Holder's Original Number plus (2) any number which such Holder
was permitted to sell, but did not sell, during the Second Period (including all
unsold shares carried over from the Initial Period).
(D) During any period remaining after the Third
Period and until the termination of the Registration Period (the "FOURTH
PERIOD"), each Holder may sell additional Registrable Securities under the Shelf
Registration up to a maximum of (1) 10% of the Holder's Original Number plus (2)
any number which such Holder was permitted to sell, but did not sell, during the
Third Period (including all unsold shares carried over from previous periods).
(iii) If during the Registration Period a Holder
sells, pursuant to any demand or piggyback registration rights such Holder may
have under the Third Amended and Restated Rights Agreement among Concur and
certain of its stockholders (as such agreement may be amended from time to
time), any shares of Common Stock of Concur in an underwritten public offering
registered at Concur's expense under the 1933 Act in which the Holder
participates pro rata on the same basis as the other participating holders of
registration rights under such agreement, then (A) the number of Option Shares
that such Holder will have the right to sell under the S-8 Registration will be
reduced by the number of shares that the Holder sells in such underwritten
public offering and (B) this reduction in Option Shares that may be sold under
the S-8 Registration will be allocated over the period under Section 2.2.3(ii)
in which the sale occurs and over any remaining periods under Section 2.2.3(ii)
in proportion to the respective amounts that the
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Holder could otherwise have then sold during such periods. (For example, if the
Holder sold 70,000 shares in such underwritten public offering during the Second
Period and if the Holder would otherwise have been permitted under Section
2.2.3(ii) to sell 150,000 Option Shares during that period, 100,000 Option
Shares during the Third Period and 100,000 Option Shares during the Fourth
Period, the Option Shares that the Holder could then sell under the S-8
Registration during the remainder of the Second Period and during the Third
Period and Fourth Period would be reduced by 30,000, 20,000 and 20,000,
respectively).
(c) The Resale Restriction is intended to correspond to
the trading restrictions provided for under Shelf Registration Agreement with
respect to sales of Concur Common Stock under the Shelf Registration Statement,
and will be interpreted and applied accordingly.
2.3 Adjustments for Capital Changes. If after the Agreement Date and
prior to the Effective Time, Concur recapitalizes, either through a subdivision
(or stock split) of any of its outstanding shares into a greater number of
shares, or a combination (or reverse stock split) of any of its outstanding
shares into a lesser number of shares, or reorganizes, reclassifies or otherwise
changes its outstanding shares into the same or a different number of shares of
other classes (other than through a subdivision or combination of shares
provided for in the previous clause), or declares a dividend on its outstanding
shares payable in shares of Concur Common Stock or in shares or securities
convertible into shares of Concur Common Stock (each, a "CAPITAL CHANGE"), then
the Concur Closing Average Price Per Share and the Exchange Ratio will be
adjusted appropriately.
2.4 Escrow Agreement.
2.4.1 Concur will withhold from the shares of Concur Common Stock
that would otherwise be delivered to the Company Stockholders pursuant to this
Agreement 10% of the total number of shares of Concur Common Stock issued to
them in the Merger (the "INITIAL ESCROW SHARES") and will deliver certificates
representing such Initial Escrow Shares to Chase Manhattan Bank and Trust
Company, National Association or a similar institution, as escrow agent (the
"ESCROW AGENT"), together with related stock transfer powers, to be held by the
Escrow Agent as security for the indemnification obligations under Section 11
and pursuant to the provisions of the escrow agreement in substantially the form
of Exhibit C that is being entered into concurrently herewith (effective as of
the Effective Time) by Concur, the Escrow Agent and the Representative (as
defined in Section 2.2.3) (the "ESCROW AGREEMENT").
2.4.2 Concur will withhold a portion of any shares that are
issued upon the exercise of Concur Options during the period that the escrow
remains in effect under the Escrow Agreement as follows (the "ESCROW
CONDITION"): Upon the exercise of any Concur Option during such period, Concur
will withhold 10% of the total shares of Concur Common Stock that are purchased
upon such exercise (the "OPTION ESCROW SHARES") (to the extent that, at the time
of such exercise, any Initial Escrow Shares have been released from the escrow,
the percentage of the shares purchased on exercise of the option that are
withheld will be reduced to correspond to the percentage of the Initial Escrow
Shares then remaining in escrow) and will deliver a certificate representing the
Option Escrow Shares to the Escrow Agent to be held and distributed under the
Escrow Agreement in the same manner as other shares in escrow. (The shares held
in escrow
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under the Escrow Agreement, whether Initial Escrow Shares or Option Escrow
Shares, are referred to as the "ESCROW SHARES.")
2.4.3 The Company Stockholders, by their approval of the Merger
and/or their tender pursuant to Section 7.2 of certificates representing shares
of Company Common Stock or Company Preferred Stock, and the holders of Concur
Options (the "OPTIONHOLDERS"), by their acceptance and, if applicable, exercise
of such options, will be conclusively deemed to have consented to, approved and
agreed to be personally bound by: (a) the indemnification provisions of Section
11, (b) the Escrow Agreement, (c) the appointment of Gary Durbin, Robert K. Reid
and Jon Blankmeyer as the representatives of the Company Stockholders and the
Optionholders (collectively, the "REPRESENTATIVE") under the Escrow Agreement
and as the attorney-in-fact and agents for and on behalf of each Company
Stockholder as provided in the Escrow Agreement and (d) the taking by the
Representative of any and all actions and the making of any decisions required
or permitted to be taken by the Representative under the Escrow Agreement,
including, without limitation, the exercise of the power to: (i) authorize
delivery to Concur of Escrow Shares in satisfaction of indemnity claims by
Concur or any other Indemnified Person (as defined herein) pursuant to Section
11 hereof and/or the Escrow Agreement; (ii) agree to, negotiate, enter into
settlements and compromises of, demand arbitration of, and comply with orders of
courts and awards of arbitrators with respect to, such claims; (iii) arbitrate,
resolve, settle or compromise any claim for indemnity made pursuant to Section
11; and (iv) take all actions necessary in the judgment of the Representative
for the accomplishment of the foregoing. The Representative will have unlimited
authority and power to act on behalf of each Company Stockholder and each
Optionholder with respect to the Escrow Agreement and the disposition,
settlement or other handling of all claims governed by the Escrow Agreement, and
all rights or obligations arising under the Escrow Agreement so long as all
Company Stockholders and Optionholders are treated in the same manner. The
Company Stockholders and Optionholders will be bound by all actions taken by the
Representative in connection with the Escrow Agreement, and Concur will be
entitled to rely on any action or decision of the Representative. In performing
the functions specified in this Agreement and the Escrow Agreement, the
Representative will not be liable to any Company Stockholder or Optionholder for
any act or omission as Representative made in good faith and in the exercise of
reasonable judgment. Any out-of-pocket costs and expenses reasonably incurred by
the Representative in connection with actions taken pursuant to the terms of the
Escrow Agreement will be paid by the Company Stockholders and Optionholders to
the Representative pro rata in proportion to their respective percentage
interests in the Escrow Shares. For the purposes of this Agreement and the
Escrow Agreement, Escrow Shares will be deemed to have a per share value equal
to the Concur Closing Average Price Per Share (such price to be subject to
adjustment to reflect to reflect any Capital Change of the type referred to in
Section 2.3, whether occurring at or after the Effective Time, and Concur shall
promptly provide the Escrow Agent with written notice of such capital change) as
provided in the Escrow Agreement.
2.5 Effects of the Merger. At the Effective Time: (a) the separate
existence of Sub will cease and Sub will be merged with and into the Company,
and the Company will be the Surviving Corporation of the Merger (the "SURVIVING
CORPORATION") pursuant to the terms of this Agreement; (b) the Certificate of
Incorporation and Bylaws of Sub as in effect immediately prior to the Effective
Time will be the Certificate of Incorporation and Bylaws of the Surviving
Corporation until amended as provided thereunder and under the Delaware General
Corporation
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Law; (c) the officers of Sub immediately prior to the Effective Time will be the
initial officers of the Surviving Corporation until their successors are elected
or appointed and qualified or until their resignation or removal; and (d) the
directors of Sub immediately prior to the Effective Time will be the initial
directors of the Surviving Corporation until their successors are elected or
appointed and qualified or until their resignation or removal.
2.6 Further Assurances. If, at any time before or after the Effective
Time, Concur believes or is advised that any further instruments, deeds,
assignments or assurances are reasonably necessary or desirable to consummate
the Merger or to carry out the purposes and intent of this Agreement at or after
the Effective Time, then Concur, the Company and the Surviving Corporation and
their respective officers and directors are authorized by the parties hereto to
execute and deliver all such proper deeds, assignments, instruments and
assurances and do all other things necessary or desirable to consummate the
Merger and to carry out the purposes of this Agreement, in the name of the
Company or otherwise.
2.7 Tax-Free Reorganization. The parties intend to adopt this Agreement
as a tax-free plan of reorganization and to consummate the Merger in accordance
with the provisions of Section 368(a)(1)(A) of the Code by virtue of the
provisions of Section 368(a)(2)(E) of the Code. The parties believe that the
value of the shares of Concur Common Stock to be issued to the Company
Stockholders in the Merger is equal to the value of the shares of Company Common
Stock to be surrendered in exchange therefor. Except for cash to be paid in lieu
of fractional shares, no consideration that could constitute "other property"
within the meaning of Section 356 of the Code is being paid by Concur for the
outstanding shares of Company Common Stock in the Merger. In addition, Concur
represents now, and as of the Closing Date, that it presently intends to
continue the Company's historic business or use a significant portion of the
Company's business assets in a business. Officers of the Company and Concur are,
concurrently herewith, executing and delivering tax representation certificates
in the respective forms set forth in Exhibit D. Notwithstanding anything to the
contrary set forth herein, Concur makes no representations or warranty to the
Company or to any stockholder of the Company regarding the tax treatment of the
Merger or whether the Merger will qualify as a tax-free plan of reorganization
under the Code.
2.8 Pooling of Interests. The parties intend the Merger to be treated as
a "pooling of interests" for accounting and financial reporting purposes.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to Concur that, except as set forth
in the letter addressed to Concur from the Company and dated as of the Agreement
Date (including all schedules thereto) which has been delivered to Concur by the
Company concurrently herewith (the "COMPANY DISCLOSURE LETTER"), each of the
following representations, warranties and statements in this Article 3 are true
and complete.
3.1 Organization and Good Standing. The Company is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware, has the corporate power and authority to own, operate and lease its
properties and to carry on its business as now conducted and as proposed to be
conducted and is qualified to transact business as a foreign
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corporation in each jurisdiction in which its failure to be so qualified would
have a Material Adverse Effect. As used in this Agreement, the term "MATERIAL
ADVERSE EFFECT" when used with reference to the Company, means any event, change
or effect that is (or will with the passage of time be) materially adverse to
the Company's condition (financial or otherwise), assets, liabilities, business,
operations, results of operations or prospects; provided, however, that for the
purposes of determining any liability under Article 11, the definition of
Material Adverse Effect will be deemed not to include the term "prospects."
3.2 Power, Authorization and Validity.
3.2.1 The Company has the right, power and authority to enter
into, execute, deliver and perform its obligations under this Agreement and all
the Company Ancillary Agreements, and the Company has all requisite corporate
power and authority to consummate the Merger. This Agreement, the Company
Ancillary Agreements, the Merger and all of the principal terms of each of the
foregoing have been duly and validly approved by the stockholders of the Company
in compliance with applicable law (including without limitation the Delaware
General Corporation Law) and the Certificate of Incorporation and Bylaws of the
Company, both as amended. The execution, delivery and performance by the Company
of this Agreement and each of the Company Ancillary Agreements have been duly
and validly approved and authorized by all necessary corporate action on the
part of the Company's Board of Directors. Each of the Principal Company
Stockholders has the right, power and legal capacity and authority to enter
into, execute, deliver and perform such Principal Company Stockholder's
respective obligations under this Agreement and each of the Principal Company
Stockholder Ancillary Agreements to be executed and delivered by such Principal
Company Stockholder. The holders of shares of Company Common Stock, or shares of
Company Preferred Stock, which in the aggregate constitute at least 90% of the
total number of (a) all shares of Company Common Stock that are issued and
outstanding plus (b) all shares of Company Common Stock that are issuable upon
the conversion of all shares of Company Preferred Stock that are issued and
outstanding (such total number of shares is referred to as "TOTAL COMPANY VOTING
SHARES"), have executed and delivered to the Company written Company Stockholder
Agreements and Consents in substantially the form set forth in Exhibit E hereto
("COMPANY STOCKHOLDER CONSENTS"); and each such holder has the right, power and
legal capacity and authority to enter into, execute, deliver and perform such
holder's obligations under such Company Stockholder Consents.
3.2.2 No filing, authorization, consent, approval or order,
governmental or otherwise, is necessary or required to enable the Company to
lawfully enter into, and to perform its obligations under, this Agreement and
each of the Company Ancillary Agreements or to enable the Principal Company
Stockholders to lawfully enter into, and to perform such stockholder's
obligations under, each of the Principal Company Stockholder Ancillary
Agreements, except for (a) the filing of the Agreement of Merger (and related
officers' certificates) or Certificate of Merger with the Delaware Secretary of
State and any such further documents as may be required under the Delaware
General Corporation Law to effect the Merger; and (b) such filings and
notifications as may be required to be made by the Company and/or any Principal
Company Stockholder in connection with the Merger under the Hart-Scott-Rodino
Antitrust Improvements Act of 1976, as amended (the "HSR ACT").
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3.2.3 This Agreement and each of the Company Ancillary Agreements
are, or when executed and delivered by the Company will be, valid and binding
obligations of the Company, enforceable against the Company in accordance with
their respective terms, except as to the effect, if any, of (a) applicable
bankruptcy and other similar laws affecting the rights of creditors generally
and (b) rules of law and equity governing specific performance, injunctive
relief and other equitable remedies. Each of the Principal Company Stockholder
Ancillary Agreements is, or when executed and delivered by a Principal Company
Stockholder will be, a valid and binding obligation of such Principal Company
Stockholder, enforceable against such Principal Company Stockholder in
accordance with its terms, subject only to the effect, if any, of (a) applicable
bankruptcy and other similar laws affecting the rights of creditors generally
and (b) rules of law and equity governing specific performance, injunctive
relief and other equitable remedies. Each of the Company Stockholder Consents
is, or when executed and delivered by a holder of Company Common Stock or
Company Preferred Stock will be, a valid and binding written consent, in
accordance with the Company's charter documents and the Delaware General
Corporation Law, of a stockholder of the Company with respect to the shares of
the Company's capital stock that are held by such stockholder and a valid and
binding obligation of such stockholder, enforceable against such stockholder in
accordance with its terms, except as the effect, if any, of (a) applicable
bankruptcy and other similar laws affecting the rights of creditors generally
and (b) rules of law and equity governing specific performance, injunctive
relief and other equitable remedies.
3.3 Capitalization of the Company.
3.3.1 Outstanding Stock. The authorized capital stock of the
Company consists entirely of (a) 40,000,000 shares of Company Common Stock, with
a par value of $0.001 per share, of which 4,964,199 shares are issued and
outstanding, and (b) 15,523,389 shares of Company Preferred Stock with a par
value of $0.001 per share, of which (i) 4,406,293 shares are designated Series A
Preferred Stock, 4,266,827 shares of which Series A Preferred Stock are issued
and outstanding and are convertible into a total of 4,266,827 shares of Company
Common Stock, (ii) 5,319,999 shares are designated Series B Preferred Stock, and
5,000,000 shares of which Series B Preferred Stock are issued and outstanding
and are convertible into a total of 5,000,000 shares of Company Common Stock and
(iii) 5,797,097 shares are designated Series C Preferred Stock, and 5,797,097
shares of which Series C Preferred Stock are issued and outstanding and are
convertible into a total of 5,797,097 shares of Company Common Stock; and no
other shares of any capital stock of the Company are authorized, issued or
outstanding. No fractional share of Common Stock or Preferred Stock of the
Company is issued or outstanding. All issued and outstanding shares of the
Company's capital stock have been duly authorized and validly issued, are fully
paid and nonassessable, are not subject to any claim, lien, preemptive right,
right of first refusal, right of first offer or right of rescission granted by
or binding upon the Company (or, to the Company's knowledge, subject to any
right of first refusal or first offer granted by any Company Stockholders to any
third party with respect to such shares), and have been offered, issued, sold
and delivered by the Company in compliance with all registration or
qualification requirements (or applicable exemptions therefrom) of all
applicable federal and state securities laws. A list of all holders of the
Company's outstanding capital stock, and the total number of shares of Company
Common Stock owned by each such holder is set forth in Schedule 3.3.1 to the
Company Disclosure Letter. The Company has no stockholders other than
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those listed in Schedule 3.3.1. During the two year period immediately prior to
the Agreement Date, the Company has not redeemed, repurchased or otherwise
reacquired any shares of its capital stock from any stockholder of the Company.
3.3.2 No Options, Warrants or Rights. Except for (a) Company
Options outstanding on the Agreement Date to purchase an aggregate of 3,966,041
shares of Company Common Stock (all of which Company Options were granted under
the Company Option Plan) and (b) Company Warrants outstanding on the Agreement
Date to purchase an aggregate of 459,466 shares of Company Preferred Stock
(which shares would, upon issuance, be convertible into an aggregate of up to
459,466 shares of Company Common Stock ), there are no options, warrants,
convertible securities or other securities, calls, commitments, conversion
privileges, preemptive rights, rights of first refusal, rights of first offer or
other rights or agreements outstanding to purchase or otherwise acquire (whether
directly or indirectly) any shares of the Company's authorized but unissued
capital stock or any securities convertible into or exchangeable for any shares
of the Company's capital stock or obligating the Company to grant, issue, extend
or enter into any such option, warrant, convertible security or other security,
call, commitment, conversion privilege, preemptive right, right of first
refusal, right of first offer or other right or agreement, and the Company has
no liability for any dividends accrued but unpaid. No person or entity holds or
has any option, warrant or other right, to which the Company is a party to or is
bound by or of which the Company has knowledge, to acquire any issued and
outstanding shares of the capital stock of the Company from any holder of shares
of the capital stock of the Company. A total of 3,966,041 shares of Company
Common Stock are issuable upon the exercise of options granted under the Company
Option Plan that are outstanding on the Agreement Date, 483,204 shares of
Company Common Stock are reserved for future issuance under the Company Option
Plan but have not been issued and are not subject to issuance upon the exercise
of any outstanding options, and 770,199 shares of Company Common Stock have been
issued upon the exercise of options granted under the Company Option Plan (and
are included in the number of shares of Company Common Stock outstanding that is
set forth in Section 3.3.1.(a)). Schedule 3.3.2 sets forth a complete list of
(a) all holders of outstanding Company Options and the number of shares of
Company Common Stock issuable upon the exercise of Company Options held by such
person (indicating the number of such shares that are vested and the number that
are unvested, the vesting schedule and the exercise price per share of Company
Common Stock) and (b) all holders of outstanding Company Warrants, the number of
shares of Series A Preferred Stock or Series B Preferred Stock issuable upon the
exercise of the Company Warrants held by such person and the number of shares of
Company Common Stock into which such shares of Company Preferred Stock are
convertible (indicating whether all such Company Warrants are vested and the
execute prices of the Company Warrants per share of Company Common Stock
issuable upon conversion of the shares of Company Preferred Stock that are
issuable upon exercise of the Company Warrants). During the two year period
immediately prior to the Agreement Date, except as may be expressly required by
the terms of the Company Option Plan, the Company has not authorized, or taken
any action to authorize, the acceleration of the time during which any holder of
any option, warrant or other right to purchase or acquire any share of capital
stock of the Company may exercise such option, warrant or right. The Company
Option Plan has been duly and validly approved by the Company's Board of
Directors and stockholders.
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3.3.3 No Voting Arrangements or Registration Rights. There are no
voting agreements, voting trusts, preemptive rights, rights of first refusal,
rights of first offer or other restrictions (other than normal restrictions on
transfer under applicable federal and state securities laws) applicable to any
of the Company's outstanding securities, or to the conversion of any shares of
the Company's capital stock in the Merger, to which the Company is a party to or
is bound by or of which the Company has knowledge. The Company is not under any
obligation to register under the 1933 Act any of its presently outstanding stock
or other securities or any stock or other securities that may be subsequently
issued.
3.4 Subsidiaries. The Company does not have any subsidiaries or any
interest, direct or indirect, in any corporation, partnership, limited liability
company, joint venture or other business entity.
3.5 No Violation of Material Agreements. Neither the execution and
delivery of this Agreement nor any of the Company Ancillary Agreements,
Principal Stockholder Ancillary Agreements or Company Stockholder Consents, nor
the consummation of the transactions contemplated hereby or thereby, will
conflict with, or (with or without notice or lapse of time, or both) result in a
termination, breach, impairment or violation of: (a) any provision of the
Certificate of Incorporation or Bylaws of the Company as currently in effect;
(b) any federal, state, local or foreign judgment, writ, decree, order, statute,
rule or regulation applicable to the Company or any of its assets or properties;
or (c) any material instrument, agreement, contract, undertaking, understanding,
letter of intent, memorandum of understanding or commitment (whether verbal or
in writing) to which the Company is a party or by which the Company or any of
its assets or properties are bound. Except as indicated in Section 3.2.2, the
consummation of the Merger by the Company will not require the consent of any
third party.
3.6 Litigation. There is no action, claim, suit, arbitration, mediation,
proceeding, claim or investigation pending against the Company (or against any
officer, director, employee or agent of the Company in their capacity as such or
relating to their employment, services or relationship with the Company) before
any court, administrative agency or arbitrator that, if determined adversely to
the Company (or any such officer, director, employee or agent) is likely to have
a Material Adverse Effect on the Company, nor, to the Company's knowledge, has
any such action, suit, proceeding, arbitration, mediation, claim or
investigation been threatened. There is no basis for any person, firm,
corporation or other entity, to assert a claim against the Company or Concur
based upon: (a) the Company's entering into this Agreement or any Company
Ancillary Agreement or consummating the Merger or any of the transactions
contemplated by this Agreement or any Company Ancillary Agreement; (b)
ownership, rights to ownership, or options, warrants or other rights to acquire
ownership, of any shares of the capital stock of the Company; or (c) any rights
as a Company stockholder, including any option, warrant or preemptive rights or
rights to notice or to vote. There is no judgment, decree, injunction, rule or
order of any governmental entity or agency, court or arbitrator outstanding
against the Company.
3.7 Taxes.
(a) The Company has timely filed all federal, state, local and
foreign tax returns required to be filed by it, has timely paid all taxes
required to be paid by it in respect of all periods for which returns have been
filed, has established an adequate accrual or reserve for the payment
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of all taxes payable in respect of the periods subsequent to the periods covered
by the most recent applicable tax returns, has made all necessary estimated tax
payments, and has no material liability for taxes in excess of the amount so
paid or accruals or reserves so established. The Company is not delinquent in
the payment of any tax or in the filing of any tax returns, and no deficiencies
for any tax have been threatened, claimed, proposed or assessed against the
Company. The Company has not received any notification that any material issues
have been raised by (or are currently pending) before the Internal Revenue
Service or any other taxing authority (including but not limited to any sales or
use tax authority) regarding the Company and no tax return of the Company has
ever been audited by the Internal Revenue Service or any state or local taxing
agency or authority. There are no tax liens against any assets of the Company
other than for taxes not yet due and payable or for taxes being contested in
good faith by the Company for which adequate reserves have been provided.
(b) For the purposes of this Section, the terms "TAX" and "TAXES"
include all federal, state, local and foreign income, alternative or add-on
minimum income, gains, franchise, excise, property, property transfer, sales,
use, employment, license, payroll, ad valorem, payroll, documentary, stamp,
occupation, recording, value added or transfer taxes, governmental charges,
fees, customs duties, levies or assessments (whether payable directly or by
withholding), and, with respect to any such taxes, any estimated tax, interest,
fines and penalties or additions to tax and interest on such fines, penalties
and additions to tax.
3.8 Company Financial Statements. The Company has delivered to Concur as
Exhibit G: (i) the Company's unaudited consolidated balance sheets as of
December 31, 1996, the Company's audited consolidated balance sheets as of
December 31, 1997 and 1998, the Company's unaudited consolidated statements of
income, statements of cash flows and statements of stockholders' equity the year
ended December 31, 1996 and the Company's audited consolidated statements of
income, statements of cash flows and statements of stockholders' equity the
years ended December 31, 1997 and 1998 and (ii) the Company's unaudited
consolidated balance sheet as of April 30, 1999 (the "BALANCE SHEET") and the
Company's unaudited consolidated statement of operations for the four month
period ended April 30, 1999 (all such financial statements of the Company and
the notes thereto are hereinafter collectively referred to as the "COMPANY
FINANCIAL STATEMENTS"). The Company Financial Statements (a) are derived from
and in accordance with the books and records of the Company, (b) fairly present
the financial position, results of operations and cash flows of the Company as
of the dates and for the periods therein specified and (c) have been prepared in
accordance with generally accepted accounting principles applied on a basis
consistent with prior periods. The Company has no material debt, liability or
obligation of any nature, whether accrued, absolute, contingent or otherwise,
and whether due or to become due, except for (i) those shown on the Balance
Sheet, and (ii) those that may have been incurred after April 30, 1999, the date
of the Balance Sheet (the "BALANCE SHEET DATE"), in the ordinary course of the
Company's business consistent with its past practice, and that are not material
in amount, either individually or collectively. All reserves established by the
Company and set forth in the Balance Sheet are reasonably adequate. At the
Balance Sheet Date, there were no material loss contingencies (as such term is
used in Statement of Financial Accounting Standards No. 5 which are not
adequately provided for in the Balance Sheet as required by said Statement No.
5.
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3.9 Title to Properties. The Company has good and marketable title to
all of its assets and properties (including but not limited to those shown on
the Balance Sheet), free and clear of all mortgages, deeds of trust, security
interests, pledges, liens, title retention devices, collateral assignments,
claims, charges, restrictions or other encumbrances of any kind. All machinery,
vehicles, equipment and other tangible personal property owned by the Company or
used in its business are in good condition and repair, normal wear and tear
excepted, and all leases of real or personal property to which the Company is a
party are fully effective and afford the Company peaceful and undisturbed
leasehold possession of the real or personal property that is the subject of the
lease. The Company does not own any real property.
3.10 Absence of Certain Changes. Since the Balance Sheet Date, there has
not been with respect to the Company any:
(a) material adverse change in the condition (financial or
otherwise), assets, liabilities, businesses, operations, results of operations
or prospects of the Company;
(b) amendment or change in the Certificate of Incorporation or
Bylaws of the Company;
(c) incurrence, creation or assumption by the Company of (i) any
mortgage, deed of trust, security interest, pledge, lien, title retention
device, collateral assignment, claim, charge, restriction or other encumbrance
of any kind on any of the assets or properties of the Company; or (ii) any
material obligation or liability or any indebtedness for borrowed money;
(d) issuance or sale of any debt or equity securities of the
Company or any options (other than Company Options) or other rights to acquire
from the Company, directly or indirectly, any debt or equity securities of the
Company;
(e) payment or discharge of any mortgage, deed of trust, security
interest, pledge, lien, title retention device, collateral assignment, claim,
charge, restriction or other encumbrance of any kind or any liability, which
lien or liability was not either shown on the Balance Sheet or incurred in the
ordinary course of the Company's business after the Balance Sheet Date;
(f) purchase, license, sale, assignment or other disposition or
transfer, or any agreement or other arrangement for the purchase, license, sale,
assignment or other disposition or transfer, of any of the assets, properties or
goodwill of the Company other than in the ordinary course of the Company's
business;
(g) damage, destruction or loss, whether or not covered by
insurance, having (or likely with the passage of time to have) a Material
Adverse Effect on the Company;
(h) declaration, setting aside or payment of any dividend on, or
the making of any other distribution in respect of, the capital stock of the
Company, any split, combination or recapitalization of the capital stock of the
Company or any direct or indirect redemption, purchase or other acquisition of
the capital stock of the Company (other than the purchase referred to in Section
3.23) or any change in any rights, preferences, privileges or restrictions of
any outstanding security of the Company;
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(i) change or increase in the compensation payable or to become
payable to any of the officers or employees of the Company, or any bonus or
pension, insurance or other benefit payment or arrangement (including without
limitation stock awards, stock appreciation rights or stock option grants) made
to or with any of such officers, employees or agents except in connection with
normal employee salary or performance reviews or otherwise in the ordinary
course of business consistent with the Company's past practice;
(j) change with respect to the management, supervisory or other
key personnel of the Company;
(k) obligation or liability incurred by the Company to any of its
employees, officers, directors or stockholders except normal compensation and
expense allowances payable to officers or directors in the ordinary course of
business consistent with the Company's past practice;
(l) making of any loan, advance or capital contribution to, or
any investment in, any officer, director or stockholder of the Company or any
firm or business enterprise in which any such person had a direct or indirect
material interest at the time of such loan, advance, capital contribution or
investment;
(m) entering into, amendment of, relinquishment, termination or
non-renewal by the Company of any contract, lease, transaction, commitment or
other right or obligation other than in the ordinary course of its business or
any written or oral indication or assertion by the other party thereto of
problems with the Company's services or performance under such contract, lease,
transaction, commitment or other right or obligation or its desire to so amend,
relinquish, terminate or not renew any such contract, lease, transaction,
commitment or other right or obligation;
(n) material change in the manner in which the Company extends
discounts or credits to customers or otherwise deals with its customers;
(o) entering into by the Company of any transaction, contract or
agreement or the conduct of business or operations other than in the ordinary
course of its business consistent with past practices;
(p) any transfer or grant of a right under any Company IP Rights
(as defined in Section 3.13 below), other than those transferred or granted in
the ordinary course of the Company's business consistent with the Company's past
practice; or
(q) any agreement or arrangement to do any of the foregoing.
3.11 Contracts and Commitments. Schedule 3.11 to the Company Disclosure
Letter sets forth a list of each of the following written or oral contracts,
agreements, commitments or other instruments to which the Company is a party or
to which the Company or any of its assets or properties is bound:
(a) consulting or similar agreement under which the Company
provides any advice or services to a customer of the Company for an annual
compensation to the Company of
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$10,000 per year or more other than those entered into in the ordinary course of
the Company's business consistent with the Company's past practices;
(b) continuing contract for the future purchase, sale, license,
provision or manufacture of products, material, supplies, equipment or services
requiring payment to or from the Company in an amount in excess of $10,000 per
annum which is not terminable on 90 days' or less notice without cost or other
liability to the Company or in which the Company has granted or received
manufacturing rights, most favored customer pricing provisions or exclusive
marketing rights relating to any product or services, group of products or
services or territory;
(c) contract providing for the development of software for the
Company, or the license of software to the Company, which software is used or
incorporated in any products currently distributed by the Company or to provide
any services currently provided by the Company or is contemplated to be used or
incorporated in any products to be distributed or services to be provided by the
Company (other than software generally available to the public at a per copy
license fee of less than $1,000 per copy);
(d) joint venture or partnership contract or agreement or other
agreement which has involved or is reasonably expected to involve a sharing of
profits or losses in excess of $10,000 per annum with any other party;
(e) contract or commitment for the employment of any officer,
employee or consultant of the Company or any other type of contract or
understanding with any officer, employee or consultant of the Company that is
not immediately terminable by the Company without cost or other liability;
(f) indenture, mortgage, trust deed, promissory note, loan
agreement, guarantee or other agreement or commitment for the borrowing of
money, for a line of credit or for a leasing transaction of a type required to
be capitalized in accordance with Statement of Financial Accounting Standards
No. 13 of the Financial Accounting Standards Board;
(g) lease or other agreement under which the Company is lessee of
or holds or operates any items of tangible personal property or real property
owned by any third party and under which payments to such third party exceed
$10,000 per annum;
(h) agreement or arrangement for the sale of any assets,
properties, services or rights having a value in excess of $10,000, other than
in the ordinary course of the Company's business consistent with its past
practice;
(i) agreement that restricts the Company from engaging in any
aspect of its business, from participating or competing in any line of business
or that restricts the Company from engaging in any business in any geographic
area;
(j) Company IP Rights Agreement (as defined in Section 3.13);
(k) Except for Company Warrants and Company Options listed in
Schedule 3.3.2, any agreement relating to the sale, issuance, grant, exercise,
award, purchase, repurchase or redemption of any shares of capital stock or
other securities of the Company or any
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options, warrants or other rights to purchase or otherwise acquire any such
shares of stock, other securities or options, warrants or other rights therefor;
or
(l) contract with or commitment to any labor union;
(m) any other agreement, contract, commitment or instrument that
is material to the business of the Company or that involves a commitment by the
Company in excess of $25,000.
A copy of each agreement or document required by this Section to
be listed on Schedule 3.11 to the Company Disclosure Letter (collectively, the
"COMPANY MATERIAL Agreements") has been delivered to Concur's counsel. No
consent or approval of any third party is required to ensure that, following the
Effective Time, any Company Material Agreement will continue to be in full force
and effect without any breach or violation thereof caused by virtue of the
Merger or by any other transaction called for by this Agreement or any Company
Ancillary Agreement.
3.12 No Default. The Company is not in breach or default under any
Company Material Agreement. The Company is not a party to any contract,
agreement or arrangement which has had, or could reasonably be expected to have,
a Material Adverse Effect on the Company. The Company does not have any material
liability for renegotiation of government contracts or subcontracts, if any.
3.13 Intellectual Property.
3.13.1 The Company owns exclusively, or has the right to use,
sell or license, all Intellectual Property Rights (as defined below) necessary
or required for the conduct of its business as presently conducted and as
presently proposed to be conducted (such Intellectual Property Rights being
hereinafter collectively referred to as the "COMPANY IP RIGHTS"), and such
ownership and rights to use, sell or license collectively are sufficient for
such conduct of its business. No other party owns or has the right to use, sell,
license or otherwise commercially exploit in any manner any Company IP Rights
owned exclusively by the Company, without the express agreement of the Company.
3.13.2 The execution, delivery and performance of this Agreement,
the Agreement of Merger and the consummation of the Merger and the other
transactions contemplated hereby and/or by the Company Ancillary Agreements will
not constitute a material breach of or default under any instrument, contract,
license or other agreement governing any Company IP Right (the "COMPANY IP
RIGHTS AGREEMENTS"), will not cause the forfeiture or termination or give rise
to a right of forfeiture or termination, of any Company IP Right or of any
Company IP Rights Agreements or materially impair the right of the Company or
the Surviving Corporation to use, sell, license or otherwise commercially
exploit in any manner any Company IP Right or portion thereof (except where such
breach, forfeiture or termination would not have a Material Adverse Effect on
the Company or the Surviving Corporation). There are no royalties, honoraria,
fees or other payments payable by the Company to any person by reason of the
ownership, use, license, sale or disposition of any of the Company IP Rights.
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3.13.3 Neither the manufacture, marketing, license, sale,
furnishing or intended use of any product or service currently licensed,
utilized, sold, provided or furnished by the Company or currently under
development by the Company breaches any license or agreement between the Company
and any third party or infringes, misappropriates or violates any Intellectual
Property Right (as defined below) of any other party; and there is no pending
or, to the knowledge of the Company, threatened claim or litigation contesting
the validity, ownership or right to use, sell, license or dispose of any Company
IP Right nor, to the knowledge of the Company, is there any basis for any such
claim, nor has the Company received any notice asserting that any Company IP
Right or the proposed use, sale, license or disposition thereof conflicts or
will conflict with the rights of any other party, nor, to the knowledge of the
Company, is there any basis for any such assertion. To the knowledge of the
Company: (a) no employee of the Company is in violation of any term of any
employment contract, patent disclosure agreement, invention assignment
agreement, noncompetition agreement, non-solicitation agreement or any other
contract or agreement, or any restrictive covenant relating to the right of any
such employee to be employed thereby, or to use trade secrets or proprietary
information of others, and (b) the employment of such employees does not subject
the Company to any liability.
3.13.4 The Company has taken commercially reasonable steps
designed to protect, preserve and maintain the secrecy and confidentiality of
the Company IP Rights and all the Company's proprietary rights therein. All
current and former officers, employees and consultants of the Company who have
or have had access to confidential or proprietary information have executed and
delivered to the Company an agreement regarding the protection of such
confidential or proprietary information and the assignment of inventions to the
Company (which assignment has the language required under applicable law to
operate regardless of whether the "work for hire" doctrine applies); and copies
of the form of all such agreements have been delivered to Concur's counsel.
Except as set forth in Schedule 3.13, and except in the ordinary course of
business consistent with the Company's customary business practices pursuant to
which the Company has taken the Seeker Engine Source Code (as defined herein) to
customers to perform on-site problem determination, the Company has not
furnished to any third party the C++ source code for that portion of the
Company's product known as the Seeker engine (or for any application framework
with respect to the Seeker engine) (collectively, the "SEEKER ENGINE SOURCE
CODE").
3.13.5 Schedule 3.13 to the Company Disclosure Letter contains a
list of all Company IP Rights (other than trade secrets) and all worldwide
applications, registrations, filings and other formal actions made or taken
pursuant to federal, state and foreign laws by the Company to secure, perfect or
protect its interest in the Company IP Rights, including, without limitation,
all patents, patent applications, copyrights (whether or not registered),
copyright applications, service marks (whether or not registered), registered
trademarks and trademark and service mark applications.
3.13.6 As used herein, the term "INTELLECTUAL PROPERTY RIGHTS"
means, collectively, all worldwide industrial and intellectual property rights,
including, without limitation, patents, patent applications, patent rights,
trademarks, trademark registrations and applications therefor, trade dress
rights, trade names, service marks, service mark registrations and applications
therefor, copyrights, copyright registrations and applications therefor, mask
work rights, mask work registrations and applications therefor, franchises,
licenses, inventions, trade secrets, know-how, customer lists, supplier lists,
proprietary processes and formulae, software source and object
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code, algorithms, architectures, structures, screen displays, layouts,
inventions, development tools, designs, blueprints, specifications, technical
drawings and all documentation and media constituting, describing or relating to
the above, including, without limitation, manuals, programmers' notes, memoranda
and records.
3.13.7 All of the software and hardware developed, licensed
and/or marketed or distributed by (or on behalf of) the Company is Year 2000
Compliant (as defined below). To the Company's knowledge, all software owned or
developed by a third party (other than software developed on behalf of the
Company) that is licensed or was sold to the Company and all hardware owned or
developed by a third party that was leased or sold to the Company is Year 2000
Compliant. Schedule 3.13.7 to the Company Disclosure Letter describes the
testing that the Company has conducted to determine whether all such software
and hardware referred to in the first two sentences of this Section 3.13.7 will
be adversely affected by, or fail to operate properly due to, the advent of the
year 2000 or dates thereafter, and the Company has provided or made available to
Concur or its counsel copies of all written responses or assurances received by
the Company from the parties who supply such software and hardware that such
software and hardware will not be adversely affected by, or fail to operate
properly due to, the advent of year 2000 or dates thereafter. "YEAR 2000
COMPLIANT" means, as applied to software or hardware, as the case may be, that:
(i) such software or hardware will operate and correctly store, represent and
process (including sort) all dates (including single and multi-century formulas
and leap year calculations), such that errors will not occur when the date being
used is in the Year 2000, or in a year preceding or following the Year 2000;
(ii) such software or hardware has been developed and tested to support numeric
and date transitions from the twentieth century to the twenty-first century, and
back (including without limitation all calculations, aging, reporting, printing,
displays, reversals, disaster and vital records recoveries) without error,
corruption or impact to current and/or future operations; and (iii) such
software or hardware will function without error or interruption related to any
date information, specifically including errors or interruptions from functions
which may involve date information from more than one century.
3.13.8 The Company has not agreed to indemnify any person for any
infringement of any Intellectual Property Rights of any third party by any
product or service that has been sold, licensed, leased, supplied or provided by
the Company, except in the ordinary course of business consistent with customary
business practices.
3.14 Compliance with Laws. The Company has complied, and is now and at
the Closing Date will be in compliance, in all material respects, with all
applicable federal, state, local or foreign laws, ordinances, regulations, and
rules, and all orders, writs, injunctions, awards, judgments, and decrees
applicable to it or to its assets, properties, and business. The Company holds
all material permits, licenses and approvals from, and has made all material
filings with, third parties, including government agencies and authorities, that
are necessary in connection with its present business.
3.15 Certain Transactions and Agreements. None of the officers or
directors of the Company (and, to the Company's knowledge, none of the Company's
employees or stockholders), nor any member of their immediate families, has any
direct or indirect ownership interest in any firm or corporation that competes
with, or does business with, or has any contractual arrangement with, the
Company (except with respect to any interest in less than 1% of the stock of any
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corporation whose stock is publicly traded). None of such officers, directors or
employees (or, to the Company's knowledge, stockholders), or any member of their
immediate families, is directly or indirectly interested in any contract or
informal arrangement with the Company, except for normal compensation for
services as an officer, director or employee thereof that have been disclosed to
Concur and except for agreements related to the purchase of the stock of the
Company by, or the grant of Company Options to, such persons. None of such
officers, directors or employees (or, to the Company's knowledge, stockholders),
or any member of their immediate family, has any interest in any property, real
or personal, tangible or intangible (including but not limited to any Company IP
Rights or any other Intellectual Property Rights) that is used in or that
pertains to the business of the Company, except for the normal rights of a
stockholder.
3.16 Employees, ERISA and Other Compliance.
3.16.1 The Company is in compliance in all material respects with
all applicable laws, agreements and contracts relating to employment, employment
practices, wages, hours, and terms and conditions of employment, including, but
not limited to, employee compensation matters. A list of all employees, officers
and individual consultants (whether or not working under the name of a
controlled entity) of the Company and their current compensation is set forth on
Schedule 3.16.1 to the Company Disclosure Letter. The Company does not have any
employment contracts or consulting agreements currently in effect that are not
terminable at will (other than agreements with the sole purpose of providing for
the confidentiality of proprietary information or assignment of inventions).
3.16.2 The Company (a) has never been and is not now subject to a
union organizing effort, (b) is not subject to any collective bargaining
agreement with respect to any of its employees, (c) is not subject to any other
contract, written or oral, with any trade or labor union, employees' association
or similar organization and (d) does not have any current labor disputes. The
Company has good labor relations, has not been informed of any facts indicating
that the consummation of the transactions contemplated hereby will have a
material adverse effect on such labor relations, and has not been informed that
any of its key employees intends to leave its employ.
3.16.3 The Company has no pension plan which constitutes, or has
since the enactment of the Employee Retirement Income Security Act of 1974, as
amended ("ERISA") constituted, a "multiemployer plan" as defined in Section
3(37) of ERISA. No Company pension plans are subject to Title IV of ERISA.
3.16.4 Schedule 3.16.4 to the Company Disclosure Letter lists
each employment, severance or other similar contract, arrangement or policy,
each "employee benefit plan" as defined in Section 3(3) of ERISA and each plan
or arrangement (written or oral) providing for insurance coverage (including any
self-insured arrangements), workers' benefits, vacation benefits, severance
benefits, disability benefits, death benefits, hospitalization benefits,
retirement benefits, deferred compensation, profit-sharing, bonuses, stock
options, stock purchase, phantom stock, stock appreciation or other forms of
incentive compensation or post-retirement insurance, compensation or benefits
for employees, consultants or directors which is entered into, maintained or
contributed to by the Company and covers any employee or former employee of the
Company. Such contracts, plans and arrangements as are described in this Section
3.16.4 are hereinafter
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collectively referred to as "COMPANY BENEFIT ARRANGEMENTS." Each Company Benefit
Arrangement has been maintained in compliance in all material respects with its
terms and with the requirements prescribed by any and all statutes, orders,
rules and regulations that are applicable to such Company Benefit Arrangement.
The Company has delivered to Concur or its counsel a complete and correct copy
or description of each Company Benefit Arrangement. All contributions to any
Company Benefit Arrangements for all periods prior to the Closing Date have been
timely made or are accrued on the Balance Sheet.
3.16.5 There has been no amendment to, written interpretation or
announcement (whether or not written) by the Company relating to, or change in
employee participation or coverage under, any Company Benefit Arrangement that
would increase materially the expense of maintaining such Company Benefit
Arrangement above the level of the expense incurred in respect thereof for the
Company's fiscal year ended December 31, 1998.
3.16.6 All of the Company Benefit Arrangements, to the extent
applicable, are in compliance, in all material respects, with (a) the
continuation coverage requirements of Section 4980B of the Code and Sections 601
through 608 of ERISA, (b) the Americans with Disabilities Act of 1990, as
amended, and (c) the Family Medical and Leave Act of 1993, as amended, and the
regulations thereunder.
3.16.7 No benefit payable or which may become payable by the
Company pursuant to any Company Benefit Arrangement or as a result of or arising
under this Agreement or the Agreement of Merger will constitute an "excess
parachute payment" (as defined in Section 280G(b)(1) of the Code) which is
subject to the imposition of an excise Tax under Section 4999 of the Code or
which would not be deductible by reason of Section 280G of the Code. The Company
is not a party to any: (a) agreement (other than as described in (b) below) with
any executive officer or other key employee thereof (i) the benefits of which
are contingent, or the terms of which are materially altered, upon the
occurrence of a transaction involving the Company in the nature of any of the
transactions contemplated by this Agreement, the Agreement of Merger or any
Company Ancillary Agreement, (ii) providing any term of employment or
compensation guarantee, or (iii) providing severance benefits or other benefits
after the termination of employment of such employee regardless of the reason
for such termination of employment, or (b) agreement or plan, including, without
limitation, any stock option plan, stock appreciation rights plan or stock
purchase plan, any of the benefits of which will be materially increased, or the
vesting of benefits of which will be materially accelerated, by the occurrence
of any of the transactions contemplated by this Agreement, the Agreement of
Merger or any Company Ancillary Agreement, or the value of any of the benefits
of which will be calculated on the basis of any of the transactions contemplated
by this Agreement, the Agreement of Merger or any Company Ancillary Agreement.
3.16.8 The Company is in compliance with requirements of the
Worker Adjustment and Retraining Notice Act and has no liabilities under that
statute.
3.17 Corporate Documents. The Company has made available to Concur for
examination all documents and information listed in the Company Disclosure
Letter or in any schedule thereto or in any other exhibit or schedule called for
by this Agreement which have been requested by Concur's legal counsel,
including, without limitation, the following: (a) copies of the
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Company's Certificate of Incorporation and Bylaws as currently in effect; (b)
the Company's Minute Book containing all records of all proceedings, consents,
actions, and meetings of the Company's stockholders, board of directors and any
committees thereof; (c) the Company's stock ledger and journal reflecting all
stock issuances and transfers; (d) all permits, orders, and consents issued by
any regulatory agency with respect to the Company, or any securities of the
Company, and all applications for such permits, orders, and consents; and (e)
all agreements of the Company required to be listed in Schedule 3.11 to the
Company Disclosure Letter.
3.18 No Brokers. Except for the arrangements with Morgan Stanley Dean
Witter disclosed in Schedule 3.18 to the Company Disclosure Letter, neither the
Company nor any affiliate of the Company is obligated for the payment of any
fees or expenses of any investment banker, broker, finder or similar party in
connection with the origin, negotiation or execution of this Agreement or the
Agreement of Merger or in connection with any transaction contemplated hereby or
thereby.
3.19 Books and Records.
3.19.1 The books, records and accounts of the Company (a) are in
all material respects true, complete and correct, (b) have been maintained in
accordance with good business practices on a basis consistent with prior years,
(c) are stated in reasonable detail and accurately and fairly reflect the
transactions and dispositions of the assets of the Company, and (d) accurately
and fairly reflect the basis for the Company Financial Statements.
3.19.2 The Company has devised and maintains a system of internal
accounting controls sufficient to provide reasonable assurances that: (a)
transactions are executed in accordance with management's general or specific
authorization; (b) transactions are recorded as necessary (i) to permit
preparation of financial statements in conformity with generally accepted
accounting principles or any other criteria applicable to such statements,
including the American Institute of Certified Public Accountant's Statement of
Position 97-2, and (ii) to maintain accountability for assets; and (c) the
amount recorded for assets on the books and records of the Company is compared
with the existing assets at reasonable intervals and appropriate action is taken
with respect to any differences.
3.20 Insurance. The Company maintains fire and casualty, general
liability, business interruption, product liability, and errors and omissions
insurance with respective insurers, and in the respective amounts, set forth in
Schedule 3.20 to the Company Disclosure Letter.
3.21 Environmental Matters.
3.21.1 Definitions. The following capitalized terms shall have
the meanings set forth below:
(a) "ENVIRONMENTAL LAWS" means all federal, state, local
and foreign laws and regulations relating to pollution or protection of human
health or the environment (including without limitation ambient air, surface
water, ground water, land surface or subsurface strata), including without
limitation laws and regulations relating to emissions, discharges, releases or
threatened releases of Hazardous Substances (as defined below), or otherwise
relating to the
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manufacture, processing, distribution, use, treatment, storage, disposal,
transport or handling of Hazardous Substances.
(b) "HAZARDOUS MATERIALS" means (i) any pollutant,
contaminant, chemical, industrial, toxic, hazardous or noxious substance or
waste which is regulated by the laws of any state, local, federal or other
governmental authority or jurisdiction, including but no limited to the State of
California and the United States Government, and includes but is not limited to
(a) any oil or petroleum compounds, flammable substances, explosives,
radioactive materials, or any other materials or pollutants which pose a hazard
to persons or cause any real property to be in violation of any Environmental
Laws, (b) to the extent so regulated, asbestos or any asbestos-containing
material of any kind or character, (c) polychlorinated biphenyls, as regulated
by the Toxic Substances Control Act, 15 U.S.C. Section 2601 et seq., (d) any
materials or substances designated as "hazardous substances" pursuant to Section
311 of the Clean Water Act, 33 U.S.C. Section 1251 et seq., (e) "economic
poison," as defined in the Federal Insecticide, Fungicide and Rodenticide Act, 7
U.S.C. Section 135 et seq., (f) "chemical substance," "new chemical substance,"
or "hazardous chemical substance or mixture" pursuant to Sections 3, 6 and 7 of
the Toxic Substances Control Act, 15 U.S.C. Section 2601 et seq., (g) "hazardous
substances" pursuant to Section 101 of the Comprehensive Environmental Response,
Compensation, and Liability Act, 42 U.S.C. Section 9601 et seq., and (h)
"hazardous waste" pursuant to Section 1004 of the Resource Conservation and
Recovery Act, 42 U.S.C. Section 6901 et seq., and (ii) as of any date of
determination, any additional substances or materials which now or hereafter may
be incorporated in or added to the definition of "economic poison," "chemical
substance," "new chemical substance," "hazardous chemical substance or mixture,"
"hazardous waste," "hazardous substance" or "toxic substance" or similar
substance for purposes of any Environmental Law.
(c) For the purposes of this Section 3.2.1, the Company
will be deemed to have "KNOWLEDGE" of a matter if such matter is known to any of
the Company's managers who have responsibilities that include any environmental
compliance issues or to any of the Company's officers, directors, or members of
senior management.
3.21.2 Environmental Obligations. Each facility or site at which
the Company or any of its predecessors-in-interest conducts any business or has
previously conducted any business (each a "FACILITY", collectively, the
"FACILITIES") is not (and with respect to each such previously owned, used or
operated Facility was not, when the Company or its predecessors left such
Facility) in violation of any Environmental Laws, including any laws or
regulations relating to industrial hygiene, disposal of Hazardous Substances or
the environmental conditions on or under such properties or facilities,
including but not limited to, soil and groundwater conditions. During the time
that the Company or any of its predecessors-in-interest have owned, leased or
occupied any Facility, the Company or its predecessors have not used, generated,
manufactured or stored on or under any part of any such Facility, or transported
to or from any part of any Facility, any Hazardous Substances in violation of
any Environmental Laws. There has been no presence, disposal, release or
threatened release of any Hazardous Substances on, from or under any part of the
Facility and no Hazardous Substances are currently present in, on, under or
about any of the Facilities or their groundwater or soil.
3.21.3 Conduct of Business. The Company is conducting, and at all
times has conducted, its business and operations, and has occupied and used the
Facilities in material
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compliance with all Environmental Laws so as not to give rise to any liability
under any Environmental Laws. To the Company's knowledge, there is no reasonable
basis to believe or suspect that the Company's business has been conducted or is
being conducted in violation of any Environmental Laws, and the Company does not
have any knowledge of pending or proposed changes to any Environmental Laws
which would require any changes in any of the Company's Facilities, equipment,
operations or procedures or affect such business or the cost to the Company of
conducting its business as now conducted.
3.21.4 Compliance, Disclosure of Environmental Conditions. No
conditions, circumstances or activities have existed or currently exist with
respect to the Facilities or the business or property of the Company which could
reasonably be expected to result in recovery by any governmental authority or
other person of any remedial or removal costs, response costs, natural resource
damages or other costs, expenses or damages arising from or relating to any
alleged injury or threat of injury or harm to public health, safety or the
environment. No conditions, circumstances or activities have existed or
currently exist with respect to the Company's business or property (including
without limitation the Facilities) that could reasonably be expected to subject
the Company or Concur to any administrative, civil or criminal liability,
injunctive relief, penalty or obligation, whether under common law, equitable
theory, or pursuant to Environmental Laws, or which in the future could
reasonably be expected to result in or may have in the past resulted in actual
or threatened damage, harm, or impairment of, or a threat to, public health,
safety or the environment.
3.21.5 No Outstanding Orders or Actions. There are no outstanding
orders, injunctions or decrees against the Company, nor are there any pending or
threatened investigations of any kind against the Company, concerning any
environmental, public health, safety or land use matters or other Environmental
Laws, including, but not limited to, the emission, discharge or release of
hazardous or toxic substances or wastes, pollutants, or contaminants into the
environment or work place, or the management of hazardous or toxic substances or
wastes, pollutants or contaminants. There are no actions, suits or
administrative, arbitral or other proceedings alleged, claimed, pending,
affecting or, to the Company's knowledge threatened against the Company at law
or in equity with respect to any environmental, public health, safety or land
use matters or other Environmental Laws, and to the Company's knowledge, there
are no existing grounds on which any such action, suit or proceedings might be
commenced.
3.21.6 No Waste Disposal. Any chemicals and chemical products
that are used for the conduct of Company's business have not been processed,
have not been and are not intended to be discarded, and are not waste or waste
materials. All Hazardous Substances and waste materials generated, used,
transported, treated, stored or disposed of in connection with the Company's
business are handled, stored, treated and disposed of in accordance with
applicable Environmental Laws. Schedule 3.21 of the Company Disclosure Letter
describes all Hazardous Materials present on properties leased or owned by
Company or which has been treated, stored or disposed of in connection with the
business of the Company on such properties. At no time has any radioactive waste
been treated on any properties leased or owned by Company.
3.22 Termination of Registration Rights. The Company and the other
parties to the registration rights agreements applicable to or affecting any
outstanding shares or other securities
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of the Company have terminated, canceled or waived their rights under those
agreements effective no later than immediately prior to the Effective Time.
3.23 Re-Purchase of Company Common Stock. The Company has purchased, or
will purchase prior to the Effective Time, from Philippe Chouraki 200,000 shares
of Company Common Stock held by him, for the aggregate purchase price of
$210,000 (the "STOCK REPURCHASE Amount") pursuant to and in accordance with the
Company's right to purchase such shares under the Option to Purchase Common
Stock Agreement between him and the Company dated as of March 26, 1998. Neither
the Company, Concur, the Surviving Corporation nor any officer, director or
controlling person of any of them will incur any expenses (other than the Stock
Repurchase Amount) or liability as a result or arising out of such purchase.
3.24 Disclosure. Neither this Agreement, its exhibits and schedules, nor
any of the certificates to be delivered by the Company to Concur pursuant to
this Agreement, taken together, contains any untrue statement of a material fact
or omits to state any material fact necessary in order to make the statements
contained herein and therein, in light of the circumstances under which such
statements were made, not misleading.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF CONCUR AND SUB
Concur and Sub hereby represent and warrant that each of the following
representations, warranties and statements in this Article 4 are true and
complete:
4.1 Organization and Good Standing. Concur is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware, and has the corporate power and authority to own, operate and lease
its properties and to carry on its business as now conducted and as proposed to
be conducted. Sub is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware, and has the corporate power
and authority to own, operate and lease its properties and to carry on its
business as proposed to be conducted.
4.2 Power, Authorization and Validity.
4.2.1 Concur has the right, power and authority to enter into,
execute, deliver and perform its obligations under this Agreement and the Concur
Ancillary Agreements. The execution, delivery and performance of this Agreement
and the Concur Ancillary Agreements by Concur have been duly and validly
approved and authorized by Concur's Board of Directors. The issuance of the
shares of Concur Common Stock to be issued in the Merger does not require the
approval of Concur's stockholders. Sub has the right, power and authority to
execute, deliver and perform its obligations under this Agreement, and Sub has
all requisite power and authority to consummate the Merger. Upon approval of the
Merger and the Agreement of Merger by Sub's sole stockholder, Sub will have the
right, power and authority to execute, deliver and perform the Agreement of
Merger and all other Sub Ancillary Agreements. The execution, delivery and
performance of this Agreement, the Agreement of Merger and all other Sub
Ancillary Agreements by Sub have been duly and validly approved and authorized
by Sub's Board of Directors.
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4.2.2 No filing, authorization, consent, approval or order,
governmental or otherwise, is necessary or required to enable Concur or Sub to
enter into, and to perform its obligations under, this Agreement, the Concur
Ancillary Agreements or the Sub Ancillary Agreements, respectively, except for
(a) the filing by the Company of such reports and information with the SEC under
the 1934 Act and the rules and regulations promulgated by the SEC thereunder, as
may be required in connection with this Agreement, the Merger and the
transactions contemplated hereby; (b) the filing with the SEC of a Form D; (c)
the filing of the Agreement of Merger (or the Certificate of Merger) with the
Delaware Secretary of State and any such further documents as may be required
under the Delaware General Corporation Law to effect the Merger; (d) such
filings and notifications as may be necessary under the HSR Act and the
expiration of applicable waiting periods under the HSR Act; (e) such other
filings as may be required by the Nasdaq National Market System with respect to
the Concur Common Shares to be issued in the Merger and the Company Options to
be assumed by Concur in the Merger; (f) the approval of this Agreement, the
Agreement of Merger (if any) and the Merger by the stockholder of Sub; and (g)
such other filings, if any, as may be required to comply with federal and state
securities laws.
4.2.3 This Agreement and the Concur Ancillary Agreements are, or
when executed by Concur will be, valid and binding obligations of Concur,
enforceable against Concur in accordance with their respective terms, except as
to the effect, if any, of (a) applicable bankruptcy and other similar laws
affecting the rights of creditors generally and (b) rules of law and equity
governing specific performance, injunctive relief and other equitable remedies.
This Agreement and the Sub Ancillary Agreements are, or when executed by Sub
will be, valid and binding obligations of Sub, enforceable against Sub in
accordance with their respective terms, except as to the effect, if any, of (a)
applicable bankruptcy and other similar laws affecting the rights of creditors
generally and (b) rules of law and equity governing specific performance,
injunctive relief and other equitable remedies.
4.3 Capital Structure.
4.3.1 Stock. The authorized capital stock of Concur consists of
60,000,000 shares of Concur Common Stock, $0.001 par value per share, and
5,000,000 shares of Preferred Stock, $0.001 par value per share (the "CONCUR
PREFERRED STOCK"). At the close of business on March 31, 1999, 17,103,430 shares
of Concur Common Stock were issued and outstanding. No share of Concur Preferred
Stock is issued or outstanding. All outstanding shares of Concur Common Stock
have been duly authorized and validly issued, are fully paid and nonassessable
and are not subject to preemptive rights. As of the date hereof, the authorized
capital stock of Sub consists of 100 shares of Common Stock, $0.001 par value
per share, of which 100 shares are validly issued, fully paid and nonassessable,
all of which are owned by Concur.
4.3.2 Options. As of March 31, 1999, options to purchase an
aggregate of 2,569,371 shares of Concur Common Stock were outstanding under all
stock option and equity incentive plans of Concur, and warrants were outstanding
to purchase an aggregate of 2,224,266 shares of Concur Common Stock.
4.3.3 No Other Options, Etc. Except for the Concur stock options
referred to in Section 4.3.2 above and options to be potentially granted under
the Concur 1998 Equity Incentive Plan to new employees pursuant to outstanding
employment offer letters, rights of directors to
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receive options under the Concur 1998 Directors Option Plan and rights of Concur
employees to subscribe for shares of Concur Common Stock under the Concur 1998
Employee Stock Purchase Plan, as of the Agreement Date, there are no outstanding
options, warrants, convertible or other securities of Concur entitling any party
to purchase or acquire shares of Concur Common Stock.
4.4 No Violation of Material Agreements. Neither the execution and
delivery of this Agreement nor any Concur Ancillary Agreement, nor the
consummation of the transactions contemplated hereby or thereby, will conflict
with, or (with or without notice or lapse of time, or both) result in a
termination, breach, impairment or violation of (a) any provision of the
Certificate of Incorporation or Bylaws of Concur, as currently in effect; (b)
any federal, state, local or foreign judgment, writ, decree, order, statute,
rule or regulation applicable to Concur or any of its assets or properties; or
(c) any material instrument, agreement, contract, undertaking, understanding,
letter of intent, memorandum of understanding or commitment (whether verbal or
in writing) to which Concur is a party or by which Concur or any of its assets
or properties are bound. Except as indicated in Section 4.2.2, the consummation
of the Merger by Concur will not require the consent of any third party.
4.5 Disclosure. Concur has made available to the Company Concur's
Prospectus dated April 16, 1999 and the Registration Statement on Form S-1 in
which such prospectus is contained and Concur's report on Form 10-Q for the
quarter ending March 31, 1999 (collectively, the "SEC DOCUMENTS"). As of the
respective dates on which such SEC documents were filed by Concur with the SEC,
such SEC documents complied in all material respects with the requirements of
the 1933 Act or the 1934 Act, as applicable. Such SEC documents, this Agreement,
the exhibits and schedules hereto and the certificates or documents to be
delivered by Concur to the Company pursuant to this Agreement, when taken
together, do not contain any untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements contained
herein and therein, in light of the circumstances under which such statements
were made, not misleading in any material respect. The financial statements
(including any related schedules and/or notes) included in the SEC Documents
have been prepared in accordance with generally accepted accounting principles
applied on a basis consistent with prior periods (except as may be indicated in
the notes thereto) throughout the period involved and fairly present the
financial position, results of operations and cash flows as of the dates and for
the period indicated therein.
4.6 Validity of Shares. The shares of Concur Common Stock to be issued
pursuant to the Merger will, when issued: (a) be duly authorized, validly
issued, fully paid and nonassessable and free of liens and encumbrances created
by Concur and (b) will be free and clear of any liens and encumbrances except
for applicable securities law restrictions on transfer, including those imposed
by Regulation D and Rule 144 promulgated under the 1933 Act, under applicable
state securities laws and under the Company Affiliate Agreements to be executed
pursuant to this Agreement.
4.7 No Brokers. Except for arrangements made by the Company with
BancBoston Robertson Stephens Inc. in connection with the transactions provided
for in this Agreement, Concur is not obligated for the payment of any fees or
expenses of any investment banker, broker, finder or similar party in connection
with the origin, negotiation or execution of this Agreement or the Agreement of
Merger or in connection with any transaction contemplated hereby or thereby.
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4.8 No Material Adverse Change. Since the date of Concur's Report on
Form 10-Q for its fiscal quarter ended March 31, 1999, there has been no
material adverse change in the business, operations or financial condition of
Concur and its subsidiaries, taken as a whole.
4.9 No Violation of Existing Agreements. Concur has not received notice
from any third party that it is or would, with the passage of time, be (a) in
material violation of any provision of the Certificate of Incorporation or
Bylaws of Concur; or (b) in default or violation of any material term, condition
or provision of (i) any material judgment, decree, order, injunction or
stipulation applicable to Concur or (ii) any currently effective material
agreement, note, mortgage, indenture, contract, lease or instrument, permit,
concession, franchise or license, which default or violation would have a
material adverse effect on the business, operations or financial condition of
Concur and its subsidiaries, taken as a whole.
4.10 Litigation. There is no action, claim, suit, arbitration,
proceeding, claim or investigation pending against Concur before any court,
administrative agency or arbitrator that, if determined adversely to Concur, is
likely to have a material adverse effect on Concur's financial condition or
results of operation, nor, to Concur's knowledge, has any such action, suit,
proceeding, arbitration, claim or investigation been threatened.
4.11 Absence of Certain Changes. Since April 16, 1999, the date of
Concur's prospectus referred to in Section 4.5 (and except for the offer and
sale of shares of Concur Common Stock covered by the prospectus), there has not
been (a) any declaration, setting aside or payment of any dividend or payment in
cash, stock or property or other distribution with respect to Concur's capital
stock, (b) any reclassification, combination, split, subdivision, redemption,
purchase or other acquisition, directly or indirectly, of any of Concur's
capital stock, (c) any material change in Concur's accounting principles,
practices or methods or (d) any material alteration in the character or conduct
of Concur's business as conducted prior to April 16, 1999.
ARTICLE 5
PRE-CLOSING COVENANTS OF THE COMPANY
During the period from the Agreement Date until the earlier to occur of
(a) the Effective Time or (b) the termination of this Agreement in accordance
with Section 10, the Company covenants and agrees with Concur as follows:
5.1 Advice of Changes. The Company will promptly advise Concur in
writing (a) of any event occurring subsequent to the Agreement Date that would
render any representation or warranty of the Company contained in Section 3 of
this Agreement, if made on or as of the date of such event or the Closing Date,
untrue, inaccurate or incomplete in any material respect and (b) of any material
adverse change in the Company's business, results of operations or financial
condition. The Company will deliver to Concur within 15 days after the end of
each monthly accounting period ending after the Agreement Date and before the
Closing Date, an unaudited balance sheet and statement of operations, which
financial statements will be prepared in the ordinary course of its business,
consistent with its past practice in accordance with the Company's books and
records and generally accepted accounting principles and will fairly present the
financial position of the Company as of their respective dates and the results
of the Company's operations for the periods then ended.
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5.2 Maintenance of Business. The Company will carry on and preserve its
business and its relationships with customers, suppliers, employees and others
in substantially the same manner as it has prior to the date hereof. If the
Company becomes aware of a material deterioration in the relationship with any
key customer, key supplier or key employee, it will promptly bring such
information to the attention of Concur in writing and, if requested by Concur,
will exert reasonable commercial efforts to promptly restore the relationship.
5.3 Conduct of Business. The Company will continue to conduct its
business and maintain its business relationships in the ordinary and usual
course and will not, without the prior written consent (which may be given
verbally to be promptly followed by written confirmation) of the President or
Chief Financial Officer of Concur:
(a) borrow or lend any money other than advances to employees for
travel and expenses that are incurred in the ordinary course of the Company's
business consistent with the Company's past practice;
(b) enter into any transaction or agreement not in the ordinary
course of the Company's business consistent with the Company's past practice;
(c) encumber or permit to be encumbered any of its assets;
(d) sell, transfer or dispose of any of its assets except in the
ordinary course of the Company's business consistent with the Company's past
practice;
(e) enter into any material lease or contract for the purchase or
sale of any property, whether real or personal, tangible or intangible;
(f) pay any bonus, increased salary or special remuneration to
any officer, employee or consultant (except pursuant to existing arrangements
previously disclosed to and approved in writing by Concur) or enter into any new
employment or consulting agreement with any such person;
(g) change any of its accounting methods;
(h) declare, set aside or pay any cash or stock dividend or other
distribution in respect of its capital stock, redeem, repurchase or otherwise
acquire any of its capital stock or other securities, pay or distribute any cash
or property to any Company stockholder or securityholder or make any other cash
payment to any shareholder or securityholders of the Company that is unusual,
extraordinary, or not made in the ordinary course of the Company's business
consistent with its past practice;
(i) amend or terminate any contract, agreement or license to
which it is a party except those amended or terminated in the ordinary course of
the Company's business, consistent with its past practice, and which are not
material in amount or effect;
(j)initiate any litigation or enter into any settlement agreement
or other similar arrangement for the resolution of a dispute or the termination
of a business relationship;
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(k) guarantee or act as a surety for any obligation of any third
party;
(l) waive or release any material right or claim, except in the
ordinary course of its business, any mortgage, deeds of trust, security
interest, pledge, lien, title retention device, collateral assignment, claim,
charge, restriction or other encumbrance of any kind, consistent with the
Company's past practice;
(m) issue, sell, create or authorize any shares of its capital
stock of any class or series or any other of its securities, or issue, grant or
create any warrants, obligations, subscriptions, options, convertible securities
or other (formal or informal) commitments (whether through offers of employment
or otherwise) to issue, or grant options or other rights to acquire, shares of
its capital stock or securities ultimately exchangeable for, or convertible
into, shares of its capital stock; provided, however, that notwithstanding the
foregoing, the Company may issue shares of Company Common Stock issuable upon
the exercise of the Company Options that are outstanding on the Agreement Date
in accordance with their terms as now in effect;
(n) subdivide or split or combine or reverse split the
outstanding shares of its capital stock of any class or enter into any
recapitalization affecting the number of outstanding shares of its capital stock
of any class or affecting any other of its securities;
(o) merge, consolidate or reorganize with, or acquire, any
corporation, partnership, limited liability company or any other entity or enter
into any negotiations, discussions or agreement for such purpose;
(p) amend its Certificate of Incorporation or Bylaws;
(q) license or encumber any of its technology or intellectual
property except in the ordinary course of its business consistent with past
practice;
(r) change any insurance coverage or issue any certificates of
insurance;
(s) agree to any audit assessment by any tax authority or file
any federal or state income or franchise tax return unless copies of such
returns have first been delivered to Concur for its review prior to filing;
(t) modify or change the exercise or conversion rights or
exercise or purchase prices of any capital stock of the Company, any Company
stock options, warrants or other Company securities, or accelerate or otherwise
modify (i) the right to exercise any option, warrant or other right to purchase
any capital stock or other securities of the Company or (ii) the vesting or
release of any shares of capital stock or other securities of the Company from
any repurchase options or rights of refusal held by the Company or any other
party or any other restrictions unless such accelerations/modifications are
expressly required and mandated by the terms of a formal written agreement or
plan that was entered into prior to the execution of the Agreement by Concur and
the Company;
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(u) purchase or otherwise acquire, or sell or otherwise dispose
of: (i) any shares of Concur Common Stock or other Concur securities or (ii) any
securities whose value is derived from or determined with reference to, in whole
or in part, the value of Concur stock or other Concur securities.; or
(v) agree to do any of the things described in the preceding
clauses 5.3(a) through 5.3(u).
5.4 Company Stockholder Approval; Stockholder Agreements. The Company
has obtained (and provided copies to Concur) of Company Stockholder Consents
executed and delivered by Concur Stockholders holding at least 90% of the Total
Company Voting Shares, which Company Stockholder Consents provide the written
consent of the Company's stockholders, in compliance with applicable law and the
Company's Certificate of Incorporation and Bylaws, approving this Agreement, the
Merger and related matters (such Company stockholders' written consent is
hereinafter referred to as the "COMPANY STOCKHOLDER VOTE"). The Company's Board
of Directors will not take any action whatsoever to revoke, modify, invalidate,
or withdraw the Company Stockholder Vote. The Company will seek the written
consent of the other Company Stockholders (those who are not concurrently
herewith executing and delivering Company Stockholder Consents) approving this
Agreement, the Merger and related matters, and will provide such stockholders in
connection with such consents, (a) the services of a purchaser representative
meeting the requirements of Rule 501 under the 33 Act and (b) complete and
accurate information regarding the Company, the Merger and Concur (to the extent
the Company has such information), including all information that such
stockholders or their purchaser representative may request.
5.5 Regulatory Approvals. The Company will promptly execute and file, or
join in the execution and filing, of any application, notification (including
without limitation any notification or provision of information, if any, that
may be required under the HSR Act) or any other document that may be necessary
in order to obtain the authorization, approval or consent of any governmental
body, federal, state, local or foreign, which may be reasonably required, or
which Concur may reasonably request, in connection with the consummation of the
Merger or any other transactions contemplated by this Agreement, any Company
Ancillary Agreement or any Principal Company Stockholder Ancillary Agreement.
The Company will use its best efforts to obtain, and to cooperate with Concur to
promptly obtain, all such authorizations, approvals and consents.
5.6 Necessary Consents. Once Concur has publicly announced the Merger or
the agreement of Concur and the Company to enter into the Merger (the
"ANNOUNCEMENT"), the Company will use its best efforts to obtain such written
consents and take such other actions as may be necessary or appropriate in
addition to those set forth in the foregoing Sections of this Article 5 to allow
the consummation of the transactions contemplated hereby and to allow Concur to
carry on the Company's business after the Effective Time.
5.7 Litigation. The Company will notify Concur in writing promptly after
learning of any material claim, action, suit, arbitration, mediation, proceeding
or investigation by or before any court, arbitrator or arbitration panel, board
or governmental agency, initiated by or against it, or known by it to be
threatened against it.
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5.8 No Other Negotiations. From the Agreement Date until the earlier of
termination of this Agreement in accordance with Section 10 or consummation of
the Merger, the Company will not (and will not authorize, encourage or permit
any officer, director, employee, stockholder or affiliate of the Company or any
other person, on its or their behalf, to), directly or indirectly, (a) solicit,
encourage, initiate or participate in any negotiations or discussions with
respect to any offer or proposal to acquire all of any part of the Company
whether by purchase of assets, exclusive licenses, joint venture formation,
purchase of stock, business combination or otherwise, (b) disclose any
information not customarily disclosed to any person concerning the Company and
which the Company reasonably believed would be used for the purposes of
formulating an offer or proposal (provided that any disclosure on or after the
Agreement Date that is reasonably necessary or appropriate in connection with
seeking approval of the Merger by the Company Stockholders in accordance with
Section 5.4 will not be deemed a violation of this Section 5.8), (c) cooperate
with any person to make any proposal to purchase all or any part of the Company
(directly or indirectly) other than inventory or nonessential or excess assets
sold in the ordinary course of business, (d) agree to or endorse any transaction
described in clauses (a) through (c) of this sentence (a "COMPETING
TRANSACTION"), or (v) authorize or permit any of Company's representatives to
take any such action. The Company shall notify Concur promptly if any proposal
or offer (written or otherwise), or any inquiry or contact with any person with
respect thereto, regarding a Completing Transaction is made or is outstanding on
the date hereof. In addition, the Company will not execute, enter into or become
bound by (i) any letter of intent or agreement or commitment between the Company
and any third party that is related to a Competing Transaction or (ii) any
agreement or commitment between the Company and a third party providing for a
Competing Transaction.
5.9 Access to Information. Until the Closing, the Company will allow
Concur and its agents reasonable access to the files, books, records and offices
of the Company, including, without limitation, any and all information relating
to the Company's taxes, commitments, contracts, leases, licenses, and real,
personal and intangible property and financial condition, subject to the terms
of the nondisclosure agreement between the Company and Concur. The Company will
cause its accountants to cooperate with Concur and its agents in making
available all financial information reasonably requested by Concur, including
without limitation the right to examine all working papers pertaining to all
financial statements prepared or audited by such accountants.
5.10 Satisfaction of Conditions Precedent. The Company will use its best
efforts to satisfy or cause to be satisfied all the conditions precedent which
are set forth in Articles 8 and 9, and the Company will use its best efforts to
cause the transactions contemplated by this Agreement to be consummated; and,
without limiting the generality of the foregoing, to obtain (once the
Announcement has been made) all consents and authorizations of third parties and
to make all filings with, and give all notices to, third parties that may be
necessary or reasonably required on its part in order to effect the Merger and
all other transactions contemplated by this Agreement and the Company Ancillary
Agreements. In particular, the Company will use its best efforts to cause the
Merger to become effective in accordance with this Agreement before the
commencement of business on June 1, 1999.
5.11 Company Affiliate Agreements. Concurrently with the execution of
this Agreement, each of the Company's directors, executive officers, 10% or
greater shareholders (and
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affiliates of such persons who are the Company stockholders) and all persons or
entities who are "affiliates" of the Company within the meaning of Rule 144 or
Rule 405 under the 1933 Act at the time this Agreement is executed ("COMPANY
AFFILIATES") is executing and delivering to Concur an Affiliate Agreement in
substantially the form of Exhibit F (the "COMPANY AFFILIATE AGREEMENT"), and
each Principal Company Stockholder is executing and delivering to Concur a
Company Affiliate Agreement concurrently with the execution of this Agreement.
In addition, the Company will use its best efforts to cause each person or
entity who may become a Company Affiliate after the Agreement Date and before
the Effective Time to execute and deliver a Company Affiliate Agreement to
Concur promptly after such person or entity becomes a Company Affiliate.
5.12 Blue Sky Laws. The Company will use its best efforts to assist
Concur to the extent necessary to comply with the securities laws of all
jurisdictions which are applicable in connection with the Merger.
5.13 Pooling. The Company will cooperate with Concur to cause the
business combination to be effected by the Merger to be accounted for as a
pooling of interests for accounting and financial reporting purposes. Following
the Agreement Date, the Company will not take any action if, prior to taking
such action, the Company has been informed by Concur or its accountants that, in
the opinion of Concur's accountants, taking such action may preclude Concur from
accounting for the Merger as a "pooling of interests" for accounting and
financial reporting purposes and Concur or its accountants promptly give the
Company a writing that states in reasonable detail the action(s) that Concur or
its accountants request the Company not to take.
5.14 Certain Investments; Agreements. The Company does not own, and will
not make any purchase or other acquisition of, or investment in, any shares of
Concur Common Stock or other securities of Concur. The Company will not enter
into any agreement with any holders of Concur shares calling for either the
Company or Concur to retire or reacquire all or part of the Concur shares to be
issued pursuant to the Merger. The Company will not enter into any financial
arrangements for the benefit of any Company Stockholder which, in effect, would
negate the exchange of equity securities contemplated under this Agreement and
the Merger, including without limitation any loan or other financial arrangement
at abnormally low interest rates, or any guarantee of loans secured by Concur
shares to be issued pursuant to the Merger.
5.15 Invention Assignment and Confidentiality Agreements. Once the
Announcement has been made (or before such Announcement, to extent approved or
requested by Concur), the Company will use its best efforts to obtain from each
current or former employee and consultant of the Company who has had access to
any software, technology or copyrightable, patentable or other proprietary works
owned or developed by the Company, or to any other confidential or proprietary
information of the Company or its clients, an invention assignment and
confidentiality agreement in a form reasonably acceptable to Concur, duly
executed by such employee or consultant and delivered to the Company.
5.16 Closing of Merger. The Company will not refuse to effect the Merger
if, on or before the Closing Date, all the conditions precedent to the Company's
obligations to effect the Merger under Article 8 hereof have been satisfied or
waived by the Company.
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ARTICLE 6
CONCUR COVENANTS
During the period from the Agreement Date until the earlier to occur of
(a) the Effective Time or (b) the termination of this Agreement in accordance
with Section 10, Concur covenants and agrees as follows:
6.1 Advice of Changes. Concur will promptly advise the Company in
writing (a) of any event occurring subsequent to the date of this Agreement that
would render any representation or warranty of Concur contained in this
Agreement, if made on or as of the date of such event or the Closing Date, to be
untrue, inaccurate or incomplete in any material respect and (b) of any material
adverse change in Concur's business, results of operations or financial
condition.
6.2 Regulatory Approvals. Concur will promptly execute and file, or join
in the execution and filing, of any application, notification (including without
limitation any notification or provision of information, if any, that may be
required under the HSR Act) or other document that may be necessary in order to
obtain the authorization, approval or consent of any governmental body, federal,
state, local or foreign, which may be reasonably required, or which the Company
may reasonably request, in connection with the consummation of the Merger and
the other transactions contemplated by this Agreement and the Concur Ancillary
Agreements in accordance with the terms of this Agreement. Concur will use its
best efforts to obtain all such authorizations, approvals and consents.
6.3 Satisfaction of Conditions Precedent. Concur will use its best
efforts to satisfy or cause to be satisfied all of the conditions precedent
which are set forth in Articles 8 and 9, and Concur will use its best efforts to
cause the transactions contemplated by this Agreement to be consummated in
accordance with the terms of this Agreement, and, without limiting the
generality of the foregoing, to obtain (once the Announcement has been made) all
consents and authorizations of third parties and to make all filings with, and
give all notices to, third parties that may be necessary or reasonably required
on its part in order to effect the transactions contemplated hereby. In
particular, Concur will use its best efforts to cause the Merger to become
effective in accordance with this Agreement before the commencement of business
on June 1, 1999.
6.4 No Other Negotiations. From the Agreement Date until the earlier of
termination of this Agreement in accordance with Section 10 or the consummation
of the Merger, Concur will not (and will not authorize, encourage, initiate or
permit any officer, director, employee, stockholder or affiliate of Concur or
any other person, on its or their behalf, to), directly or indirectly, (a)
solicit, encourage, initiate, participate in or cooperate with any person to
make any proposal to purchase all or part of another corporation (other than the
Company) in a transaction of $10 million or more (a "PROHIBITED TRANSACTION"),
(b) agree to or endorse any such transaction or (c) authorize or permit any of
Concur's representatives to take such action. In addition, Concur will not
execute, enter into or become bound by (i) any letter of intent or agreement or
commitment between Concur and any third party that is related to a Prohibited
Transaction or (ii) any agreement or commitment between Concur and a third party
providing for a Prohibited Transaction.
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6.5 Blue Sky Laws. Concur will take such steps as may be necessary to
comply with the securities laws of all jurisdictions which are applicable in
connection with the Merger.
6.6 Registration Rights. Concur will offer to each Company Stockholder
the opportunity to enter into the Shelf Registration Agreement with Concur,
effective upon the Merger, will offer to each Principal Company Stockholder the
opportunity to enter into the Amended and Restated Registration Rights
Agreement, effective upon the Merger and will use its best efforts to cause the
Amended and Restated Registration Rights Agreement to be executed and delivered
by a sufficient number of Investors (as defined therein) to make such agreement
effective (under the terms of the Current Registration Rights Agreement).
6.7 Employee Benefit Plans. As soon as practicable after the Closing,
Company employees who become employees of Concur or Surviving Corporation will
be eligible to participate in any employee benefit plans maintained by Concur to
the extent that other similarly situated Concur employees are eligible to
participate in such plans, consistent with the eligibility provisions of such
plans, provided that there shall be no gap in coverage after termination of any
existing Company Benefit Arrangement. Continuous service with the Company to the
Effective Time will be treated for the purposes of such plans as continuous
service with Concur.
6.8 Indemnification.
(a) The Surviving Corporation shall assume at the Effective Time,
and shall be liable for a period of seven years commencing at the Effective Time
for, the Company's obligations to indemnify, defend and hold harmless each
person who is or has been at any time prior to the Agreement Date, or who
becomes prior to the Effective Time, an officer, director or employee of the
Company (the "INDEMNIFIED PARTIES") in respect of acts or omissions occurring on
or prior to the Effective Time to the extent provided in the Company's
Certificate of Incorporation and Bylaws in effect on the date hereof.
(b) If the Surviving Corporation or any of its successors or
assigns (i) consolidates with or merges into any other person or entity and
shall not be the continuing or surviving person of such consolidation or merger
or (ii) transfers all or substantially all of its properties and assets to any
persons or entity, then and in each such case, proper provision shall be made so
that the survivor or transferee shall assume the indemnification obligations
provided for in Section 6.8(a).
6.9 Closing of Merger. Concur will not refuse to effect the Merger if,
on or before the Closing Date, all the conditions precedent to the Concur's
obligations to effect the Merger under Article 9 hereof have been satisfied by
Concur.
ARTICLE 7
CLOSING MATTERS
7.1 The Closing. Subject to termination of this Agreement as provided in
Section 10 below, the closing of the transactions to consummate the Merger (the
"CLOSING") will take place at the offices of Fenwick & West LLP, Two Palo Alto
Square, Palo Alto, California 94306 at 10:00 a.m., Pacific Standard Time on the
first day that all of the conditions to Closing set forth in
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Sections 8 and 9 hereof have been satisfied and/or waived in accordance with
this Agreement, or on such later day as Concur and the Company may mutually
agree on (the "CLOSING DATE"). Concurrently with the Closing, the Agreement of
Merger (or a Certificate of Merger) will be filed with the Delaware Secretary of
State.
7.2 Exchange of Certificates.
7.2.1 At and after the Effective Time, each certificate
representing outstanding shares of Company Common Stock or Company Preferred
Stock, and each warrant agreement or other document representing outstanding
Company Warrants, will represent the number of shares of Concur Common Stock
into which such shares of Company Common Stock or Company Preferred Stock or
such Company Warrants, as applicable, have been converted, and such shares of
Concur Common Stock will be deemed registered in the name of the holder of such
certificate, agreement or other document. Promptly following the Effective Time,
Concur will cause its transfer agent to mail to each holder of record of shares
of Company Common Stock or Preferred Stock or Company Warrants (i) instructions
for use in effecting the surrender of the certificates for such shares, or the
agreements or other documents for the Company Warrants, as applicable
(collectively, the "COMPANY CERTIFICATES"), in exchange for certificates
representing Concur Common Stock and (ii) a letter of transmittal (which shall
specify that delivery shall be effected, and risk of loss and title to the
Company Certificates shall pass, only upon delivery of the Company Certificates
to the transfer agent and shall be in such form and have such other provisions
as Concur and the Company may reasonably specify). Each such holder will then
promptly surrender to the transfer agent, for cancellation, all Company
Certificates for such holder's shares of Common Stock and Preferred Stock and
Company Warrants. If a Company Certificate for any such shares or warrant has
been lost, the holder of the shares or warrant may furnish the transfer agent
with an affidavit of lost certificate and, if requested by the transfer agent or
if reasonably requested by Concur, a bond in such amount as the transfer agent
or Concur may reasonably request. Upon surrender of a Company Certificate to the
transfer agent for cancellation (or upon delivery of such affidavit and any such
bond) together with a duly executed letter of transmittal and such other
documents as may be reasonably required by the transfer agent, the transfer
agent will issue to such surrendering holder certificate(s) for the number of
shares of Concur Common Stock to which such holder is entitled pursuant to
Section 2.1 hereof, less the shares of Concur Common Stock deposited into escrow
pursuant to Section 2.4 hereof, and Concur will distribute any cash payable
under Section 2.1.4.
7.2.2 All shares of Concur Common Stock (and, if applicable, cash
in lieu of fractional shares) delivered upon the surrender of Company
Certificates in accordance with the terms hereof will be delivered to the
registered holder or placed in escrow with the Escrow Agent, as applicable.
After the Effective Time, there will be no further registration of transfers of
the shares of Company Common Stock or Company Preferred Stock or the Company
Warrants on the stock transfer books of the Company. If, after the Effective
Time, Company Certificates are presented for transfer or for any other reason,
they will be canceled and exchanged and certificates therefor will be delivered
or placed in escrow as provided in this Section 7.2. Notwithstanding anything
herein to the contrary, except to the extent waived by Concur, any Company
Certificate that is not properly submitted to Concur for exchange and
cancellation within three years after the Effective Time shall no longer
evidence ownership of or any right to receive shares of Concur
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Common Stock and all rights of the holder of such Company Certificate, with
respect to the shares previously evidenced by such Company Certificate, shall
cease.
7.2.3 Until Company Certificates representing Company Common
Stock, Company Preferred Stock or Company Warrants outstanding prior to the
Merger are surrendered pursuant to Section 7.2.1 above, such certificates will
be deemed, for all purposes, to evidence ownership of (a) the number of shares
of Concur Common Stock into which the shares of Company Capital Stock or Company
Preferred Stock or the Company Warrants will have been converted, subject to the
obligation to place a portion thereof in escrow as required hereby, and (b) if
applicable, cash in lieu of fractional shares.
7.3 Substitution of Options. Promptly after the Effective Time, Company
will notify in writing each holder of a Company Option of the substitution of a
Concur Option for such Company Option, and the number of shares of Company
Common Stock that are then subject to such option or warrant and the exercise
price of such option, as determined pursuant to Section 2.2 hereof.
ARTICLE 8
CONDITIONS TO OBLIGATIONS OF THE COMPANY
The Company's obligations hereunder are subject to the fulfillment or
satisfaction, on and as of the Closing, of each of the following conditions (any
one or more of which may be waived by the Company, but only in a writing signed
by the Company):
8.1 Accuracy of Representations and Warranties. The representations and
warranties of Concur set forth in Section 4 (as qualified by the Concur
Disclosure Letter) will be true and accurate in every material respect on and as
of the Closing with the same force and effect as if they had been made at the
Closing, and the Company will have received a certificate to such effect
executed on Concur's behalf by Concur's President or Chief Financial Officer.
8.2 Covenants. Concur will have performed and complied in all material
respects with all of its covenants contained in Section 6 on or before the
Closing, and the Company will have received a certificate to such effect signed
on Concur's behalf by Concur's President or Chief Financial Officer.
8.3 Requisite Approvals. The principal terms of this Agreement and the
Agreement of Merger will have been duly and validly approved and adopted by
Concur's Board of Directors in accordance with applicable law and Concur's
Certificate of Incorporation and Bylaws. The principal terms of the Agreement of
Merger will have been approved and adopted by Sub's Board of Directors and sole
stockholder in accordance with applicable law and Sub's Certificate of
Incorporation and Bylaws.
8.4 Compliance with Law; No Legal Restraints; No Litigation. No
litigation or proceeding will be pending or overtly threatened which could be
reasonably expected to have a material adverse effect on the present or future
operations or financial condition of Concur. There will not be any outstanding
enacted or adopted order, decree, temporary, preliminary or permanent
injunction, legislative enactment, statute, regulation, action, proceeding or
any judgment or ruling
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by any court, arbitrator, governmental agency, authority or entity, or any other
fact or circumstance, that prohibits, enjoins, restrains, suspends, delays,
conditions or renders illegal or imposes limitations on (or is likely to result
in a challenge, threat to, or a prohibition, injunction, restraint, suspension,
delay or illegality of, or to impose limitations on) the Merger or any other
material transaction contemplated by this Agreement.
8.5 Government Consents; HSR Act Compliance. There will have been
obtained at or prior to the Closing Date such permits or authorizations, and
there will have been taken all such other actions, as may be required to
consummate the Merger by any governmental or regulatory authority having
jurisdiction over the parties and the actions herein proposed to be taken,
including but not limited to requirements under applicable federal and state
securities laws. All applicable waiting periods under the HSR Act shall have
expired or early termination of such waiting periods shall have been granted by
both the Federal Trade Commission and the United States Department of Justice
without any condition or requirement requiring or calling for the disposition or
divestiture of any product or other asset of the Company by Concur or the
Company.
8.6 Opinion of Concur's Counsel. The Company will have received from
counsel to Concur, an opinion substantially in the form of Exhibit J.
8.7 Registration Rights. Concur shall have executed and delivered the
Shelf Registration Agreement and the Amended and Restated Registration Rights
Agreement, and the Amended and Restated Registration Rights Agreement shall have
been executed and delivered by a sufficient number of Investors (as defined
therein) to make such agreement effective (under the terms of the Current
Registration Rights Agreement).
8.8 Tax Opinion. The Company has received or anticipates receiving an
opinion, effective on the Closing Date, from Morrison & Foerster LLP, counsel to
the Company, to the effect that the Merger will constitute a "reorganization"
within the meaning of Section 368(a) of the Code, and Concur, Sub and the
Company will each be party to a reorganization within the meaning of Section
368(b) of the Code. In rendering such opinion, Morrison & Foerster LLP has
relied or will rely upon representation letters (in substantially the forms
included in Exhibit D) by Concur, Sub and the Company to the extent they are
able to make such customary representations. No event shall have occurred after
the Agreement Date and prior to the Closing that shall have materially changed
the applicable law, regulations or facts so as to reasonably cause such counsel
to withdraw or fail to render such opinion.
ARTICLE 9
CONDITIONS TO OBLIGATIONS OF CONCUR
The obligations of Concur hereunder are subject to the fulfillment or
satisfaction on, and as of the Closing, of each of the following conditions (any
one or more of which may be waived by Concur, but only in a writing signed by
Concur):
9.1 Accuracy of Representations and Warranties. The representations and
warranties of the Company set forth in Section 3 (as qualified by the Company
Disclosure Letter) will be true and accurate in every material respect on and as
of the Closing with the same force and effect as if
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they had been made at the Closing, and Concur will have received a certificate
to such effect executed on the Company's behalf by the Company's President and
Chief Financial Officer.
9.2 Covenants. The Company will have performed and complied in all
material respects with all of its covenants contained in Section 5 on or before
the Closing, and Concur will have received a certificate to such effect signed
on the Company's behalf by the Company's President and Chief Financial Officer.
9.3 Compliance with Law; No Legal Restraints; No Litigation. No
litigation or proceeding will be pending for or overtly threatened which could
be reasonably expected to have a material adverse effect on the present or
future operations or financial condition of the Company or which asserts that
the Company's or Concur's negotiations regarding this Agreement, Concur's or the
Company's entering into this Agreement or the Company's or Concur's consummation
of the Merger or any other material transaction contemplated by this Agreement
or any Company Ancillary Agreement or any Principal Company Stockholder
Ancillary Agreement, breaches or violates any agreement or commitment of the
Company or constitutes tortious conduct on the part of Concur or the Company.
There will not be any outstanding or overtly threatened, or enacted or adopted,
order, decree, temporary, preliminary or permanent injunction, legislative
enactment, statute, regulation, action, proceeding or any judgment or ruling by
any court, arbitrator, governmental agency, authority or entity that challenges,
threatens, prohibits, enjoins, restrains, suspends, delays, conditions or
renders illegal or imposes limitations on (or is likely to result in a
challenge, threat to, or a prohibition, injunction, restraint, suspension, delay
or illegality of, or to impose limitations on) the Merger or any other material
transaction contemplated by this Agreement.
9.4 Government Consents; HSR Act Compliance. There will have been
obtained at or prior to the Closing Date such permits or authorizations, and
there will have been taken all such other actions, as may be required to
consummate the Merger by any governmental or regulatory authority having
jurisdiction over the parties and the actions herein proposed to be taken,
including but not limited to requirements under applicable federal and state
securities laws. All applicable waiting periods under the HSR Act shall have
expired or early termination of such waiting periods shall have been granted by
both the Federal Trade Commission and the United States Department of Justice
without any condition or requirement requiring or calling for the disposition or
divestiture of any product or other asset of the Company by Concur or the
Company.
9.5 Opinion of Company's Counsel. Concur will have received from counsel
to the Company, an opinion substantially in the form of Exhibit I.
9.6 Requisite Approvals. The principal terms of this Agreement and the
Agreement of Merger, the Merger and the Company Ancillary Agreements (including
the issuance of the shares of Concur Common Stock to be issued in the Merger and
the grant of Concur Options upon conversion of Company Options in the Merger)
will have been duly and validly approved and adopted, as required by applicable
law and the Company's Articles of Incorporation and Bylaws, by (a) the Company's
Board of Directors and (b) the valid and affirmative vote of outstanding shares
of Company Common Stock and Company Preferred Stock (and any other Company
securities (if any) entitled to vote thereon) representing not less than 94% of
the voting power of
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all issued and outstanding Company Common Stock and all other Company voting
securities (if any).
9.7 No Dissenting Shares. No more than 6% of the shares of the capital
stock of the Company will be eligible to exercise or perfect any statutory
appraisal rights of dissenting shareholders under applicable law.
9.8 Affiliate Agreements. No Company Affiliate will have violated or
breached such person's Company Affiliate Agreement.
9.9 Certain Other Competition Agreements. None of the persons listed in
Schedule 5.17 who entered into the Employment Agreements or the Non-Competition
Agreement with Concur will have terminated any such agreement or will have taken
any action that caused such termination.
9.10 Resignation of Directors. The directors of the Company in office
immediately prior to the Effective Time of the Merger will have resigned as
directors of the Surviving Corporation effective as of the Effective Time.
9.11 Pooling Opinions. Concur will have been advised in writing, as of
the Effective Time, by its independent accountants that, in accordance with
generally accepted accounting principles, the Merger qualifies to be treated as
a "pooling of interests" for accounting purposes, and the Company will have been
advised in writing, as of the Effective Time, by its independent accountants
that, in accordance with generally accepted accounting principles, the Company
is eligible to participate in a transaction that qualifies as a "pooling of
interests" for accounting purposes.
9.12 No Derivative Securities. All Company Derivative Securities, if any
will have been exercised in full and thereby converted into shares of Company
Common Stock in accordance with their current terms and conditions, so that no
the Company Derivative Securities will be outstanding immediately prior to the
Effective Time.
ARTICLE 10
TERMINATION OF AGREEMENT
10.1 Prior to Closing.
10.1.1 This Agreement may be terminated at any time prior to the
Effective Time by the mutual written consent of Concur and the Company.
10.1.2 Unless otherwise agreed by the parties hereto, this
Agreement will be automatically terminated at any time prior to the Effective
Time without the need for action by any party hereto if all conditions to the
parties' obligation to effect the Closing set forth in Sections 8 and 9 have not
been satisfied or waived by the appropriate party on or before July 31, 1999
(the "TERMINATION DATE").
10.1.3 Either party may terminate this Agreement at any time
prior to the Closing if the other party has committed a material breach of (a)
any of its representations and warranties
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under Section 3 or 4 of this Agreement, as applicable; or (b) any of its
covenants under Sections 5 or 6 of this Agreement, as applicable, and has not
cured such material breach prior to the earlier of (i) the Closing or (ii) 30
days after the party seeking to terminate this Agreement has given the other
party written notice of its intention to terminate this Agreement pursuant to
this Section 10.1.3.
10.2 At the Closing. At the Closing, this Agreement may be terminated
and abandoned:
10.2.1 By Concur, if any of the conditions precedent to Concur's
obligations set forth in Article 9 above have not been fulfilled or waived on or
prior to the Termination Date;
10.2.2 By the Company, if any of the conditions precedent to the
Company's obligations set forth in Article 8 above have not been fulfilled or
waived on or prior to the Termination Date.
Any termination of this Agreement under this Section 10.2 will be
effective by the delivery of notice of the terminating party to the other party
hereto.
10.3 No Liability. Any termination of this Agreement in accordance with
this Section 10 will be without further obligation or liability upon any party
in favor of the other party hereto other than the obligations provided in the
Confidentiality Agreement (except for any obligation of Concur under Section
12.7 to pay any filing fee for the Company's HSR filing); provided, however,
that nothing herein will limit the obligation of the Company and Concur to use
their best efforts to cause the Merger to be consummated.
ARTICLE 11
SURVIVAL OF REPRESENTATIONS, INDEMNIFICATION
AND REMEDIES, CONTINUING COVENANTS
11.1 Survival of Representations. After the Closing, all representations
and warranties of the Company and Concur contained in this Agreement will remain
operative and in full force and effect, regardless of any investigation made by
or on behalf of Concur or the Company, as applicable, until that date (the
"ESCROW RELEASE DATE") which is the earlier of (i) the termination of this
Agreement, (ii) the first anniversary of the Closing Date or (iii) the date on
which the first audited financial statements of the combined corporation,
together with a report thereon from Concur's independent auditors, are first
released to the public. After the Closing, those covenants contained in this
Agreement which by their terms are to be performed after the Closing will
continue until fully performed.
11.2 Agreement to Indemnify. The Company will indemnify and hold
harmless Concur and the Surviving Corporation and their respective officers,
directors, agents, and employees, and each person who controls or may control
Concur or the Surviving Corporation within the meaning of the Securities Act and
who suffers Damages (as defined below) in the capacity as such controlling
person (each of Concur, the Surviving Corporation and each such officer,
director, agent, employee and controlling person is hereinafter referred to
individually as an "INDEMNIFIED PERSON" and collectively as "INDEMNIFIED
PERSONS") from and against any and all claims, demands, suits, actions, causes
of actions, losses, costs, demonstrable damages, liabilities
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and expenses including, without limitation, reasonable attorneys' fees, other
professionals' and experts' reasonable fees and court or arbitration costs
(hereinafter collectively referred to as "DAMAGES") incurred and arising out of
any inaccuracy, misrepresentation, breach of, or default in, any of the
representations, warranties or covenants given or made by the Company in this
Agreement or in the Company Disclosure Letter or any certificate delivered by or
on behalf of the Company pursuant hereto, (if such inaccuracy,
misrepresentation, breach or default existed at the Closing Date). Any claim of
indemnity made by an Indemnified Person under this Section 11.2 must be raised
in a writing delivered to the Representative and the Escrow Agent by no later
than the Escrow Release Date. As used herein, the term "Damages" will not
include any overhead costs of Concur personnel and the amount of Damages
incurred by any Indemnified Person will be reduced by the amount of any
insurance proceeds actually received by such Indemnified Person on account of
such Damages and the amount of any direct tax savings actually recognized by
such Indemnified Person that are directly attributable to such Damages, but will
include any reasonable costs or expenses incurred by such Indemnified Person to
recover such insurance proceeds or to obtain such tax savings. The Indemnified
Persons will use reasonable efforts to mitigate their Damages.
11.3 Limitation. Notwithstanding anything herein to the contrary, in
seeking indemnification for Damages under Section 11.2, the Indemnified Persons
will exercise their remedies with respect to the Escrow Shares and any other
assets deposited in escrow pursuant to the Escrow Agreement. Except for
intentional fraudulent conduct or other willful misconduct: (i) no Company
Stockholder will have any liability to an Indemnified Person under Section 11.2
of this Agreement except to the extent of such Company Stockholder's portion of
the Escrow Shares and any other assets deposited under the Escrow Agreement and
(ii) the remedies set forth in this Section 11.3 will be the exclusive remedies
of Concur and the other Indemnified Persons under Section 11.2 of this Agreement
against any Company Stockholder for any inaccuracy, misrepresentation, breach
of, or default in, any of the representations, warranties or covenants given or
made by the Company in this Agreement or in any certificate, document or
instrument delivered by or on behalf of the Company pursuant hereto. The
indemnification provided for in Section 11.2, and the limitation of liability
provided for in the immediately preceding sentence, shall not apply to any
breach of any covenants or representations made by a Company Stockholder in a
Company Affiliate Agreement or Company Stockholder Consent. In addition, the
indemnification provided for in Section 11.2 shall not apply unless and until
the aggregate Damages for which one or more Indemnified Persons seeks or has
sought indemnification hereunder exceeds a cumulative aggregate of $500,000 (the
"Basket"), in which event the Company shall, subject to the foregoing
limitations, be liable to indemnify the Indemnified Persons for all Damages. The
limitations on the indemnification obligations set forth in this Section 11.3
shall not be applicable to Misconduct Damages (as defined below). As used
herein, "MISCONDUCT DAMAGES" means Damages resulting from fraud or fraudulent
conduct.
11.4 Notice. Promptly after Concur becomes aware of the existence of any
potential claim by an Indemnified Person for indemnity under Section 11.2,
Concur will notify the Representative of such potential claim in accordance with
the Escrow Agreement. Failure of Concur to give such notice will not affect any
rights or remedies of an Indemnified Party hereunder with respect to
indemnification for Damages except to the extent the Company Stockholders or
Optionholders are materially prejudiced thereby. Prior to the settlement of any
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claim for which Concur seeks indemnity under Section 11.2, Concur will provide
the Representative with the terms of the proposed settlement and a reasonable
opportunity to comment on such terms in accordance with the Escrow Agreement.
ARTICLE 12
MISCELLANEOUS
12.1 Governing Law; Forum Selection. The internal laws of the State of
Delaware (irrespective of its choice of law principles) will govern the validity
of this Agreement, the construction of its terms, and the interpretation and
enforcement of the rights and duties of the parties hereto. Any action or
proceeding of any kind or nature with respect to or arising under this Agreement
or any agreement entered into under this Agreement and referred to herein shall
be brought only in the federal or state courts located within the State of
California or the State of Washington, and the parties hereto consent to the
jurisdiction of such courts with respect to any such action or proceeding.
12.2 Assignment; Binding Upon Successors and Assigns. Neither party
hereto may assign any of its rights or obligations hereunder without the prior
written consent of the other party hereto. This Agreement will be binding upon
and inure to the benefit of the parties hereto and their respective successors
and permitted assigns.
12.3 Severability. If any provision of this Agreement, or the
application thereof, will for any reason and to any extent be invalid or
unenforceable, the remainder of this Agreement and application of such provision
to other persons or circumstances will be interpreted so as reasonably to effect
the intent of the parties hereto. The parties further agree to replace such void
or unenforceable provision of this Agreement with a valid and enforceable
provision that will achieve, to the extent possible, the economic, business and
other purposes of the void or unenforceable provision.
12.4 Counterparts. This Agreement may be executed in any number of
counterparts, each of which will be an original as regards any party whose
signature appears thereon and all of which together will constitute one and the
same instrument. This Agreement will become binding when one or more
counterparts hereof, individually or taken together, will bear the signatures of
both parties reflected hereon as signatories.
12.5 Other Remedies. Except as otherwise provided herein, any and all
remedies herein expressly conferred upon a party will be deemed cumulative with
and not exclusive of any other remedy conferred hereby or by law on such party,
and the exercise of any one remedy will not preclude the exercise of any other.
12.6 Amendment and Waivers. Any term or provision of this Agreement may
be amended, and the observance of any term of this Agreement may be waived
(either generally or in a particular instance and either retroactively or
prospectively) only by a writing signed by the party to be bound thereby. The
waiver by a party of any breach hereof or default in the performance hereof will
not be deemed to constitute a waiver of any other default or any succeeding
breach or default. The Agreement may be amended by the parties hereto at any
time before or after approval of the stockholders of the Company, but, after
such approval, no amendment will be made which
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by applicable law requires the further approval of the stockholders of the
Company without obtaining such further approval. At any time prior to the
Effective Time, each of the Company and Concur, by action taken by its Board of
Directors, may, to the extent legally allowed, (a) extend the time for the
performance of any of the obligations or other acts of the other; (b) waive any
inaccuracies in the representations and warranties made to it contained herein
or in any document delivered pursuant hereto; and (c) waive compliance with any
of the agreements or conditions for its benefit contained herein. No such waiver
or extension will be effective unless signed in writing by the party against
whom such waiver or extension is asserted. The failure of any party to enforce
any of the provisions hereof will not be construed to be a waiver of the right
of such party thereafter to enforce such provisions.
12.7 Expenses. Each party will bear its respective expenses and legal
fees incurred with respect to this Agreement, and the transactions contemplated
hereby, provided, however, that Concur will reimburse the Company for any filing
fee required to be paid by the Company in connection with the Company's HSR Act
filing, unless the Merger is not consummated as a result of any action or
failure to act of the Company.
12.8 Attorneys' Fees. Should suit be brought to enforce or interpret any
part of this Agreement, the prevailing party will be entitled to recover, as an
element of the costs of suit and not as damages, reasonable attorneys' fees to
be fixed by the court (including without limitation, costs, expenses and fees on
any appeal). The prevailing party will be entitled to recover its costs of suit,
regardless of whether such suit proceeds to final judgment.
12.9 Notices. All notices and other communications required or permitted
under this Agreement will be in writing and will be either hand delivered in
person, sent by telecopier, sent by certified or registered first class mail,
postage pre-paid, or sent by nationally recognized express courier service. Such
notices and other communications will be effective upon receipt if hand
delivered or sent by telecopier, five days after mailing if sent by mail, and
one day after dispatch if sent by express courier, to the following addresses,
or such other addresses as any party may notify the other parties in accordance
with this Section:
If to Concur:
Concur Technologies, Inc.
6222 185th Avenue NE
Redmond, WA 98052
Attention: Sterling R. Wilson,
Chief Financial Officer and Vice President of Operations
Fax Number: (425) 497 6988
with a copy to:
Fenwick & West, LLP
Two Palo Alto Square, Suite 800
Palo Alto, CA 94306
Attention: Matthew P. Quilter
Fax Number: (650) 494-1417
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If to the Company:
Seeker Software, Inc.
2101 Webster Street, Suite 1600
Oakland, CA 94612
Attention: Robert K. Reid,
Chief Executive Officer
Fax Number: (510) 433-9329
with a copy to:
Morrison & Foerster LLP
755 Page Mill Road
Palo Alto, CA 94304
Attention: Michael Phillips
Fax Number: (650) 494-0792
or to such other address as a party may have furnished to the other parties in
writing pursuant to this Section 12.9.
12.10 Construction of Agreement. This Agreement has been negotiated by
the respective parties hereto and their attorneys and the language hereof will
not be construed for or against either party. A reference to a Section or an
exhibit will mean a Section in, or exhibit to, this Agreement unless otherwise
explicitly set forth. The titles and headings herein are for reference purposes
only and will not in any manner limit the construction of this Agreement which
will be considered as a whole.
12.11 No Joint Venture. Nothing contained in this Agreement will be
deemed or construed as creating a joint venture or partnership between any of
the parties hereto. No party is by virtue of this Agreement authorized as an
agent, employee or legal representative of any other party. No party will have
the power to control the activities and operations of any other and their status
is, and at all times will continue to be, that of independent contractors with
respect to each other. No party will have any power or authority to bind or
commit any other. No party will hold itself out as having any authority or
relationship in contravention of this Section.
12.12 Further Assurances. Each party agrees to cooperate fully with the
other parties and to execute such further instruments, documents and agreements
and to give such further written assurances as may be reasonably requested by
any other party to evidence and reflect the transactions described herein and
contemplated hereby and to carry into effect the intents and purposes of this
Agreement.
12.13 Absence of Third Party Beneficiary Rights. No provisions of this
Agreement are intended, nor will be interpreted, to provide or create any third
party beneficiary rights or any other rights of any kind in any client,
customer, affiliate, shareholder, partner or any party hereto or any other
person or entity unless specifically provided otherwise herein, and, except as
so provided, all provisions hereof will be personal solely between the parties
to this Agreement.
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12.14 Public Announcement. Upon the Closing, Concur and the Company will
issue a press release approved by both parties announcing the Merger. Concur may
issue such earlier or other press releases, and make such other disclosures
regarding the Merger, as it determines are required under applicable securities
laws or regulatory rules. Prior to the publication of such press release (unless
this Agreement has been terminated, neither party will make any public
announcement relating to this Agreement or the transactions contemplated hereby
and the Company will use its reasonable efforts to prevent any trading in Concur
Common Stock by its officers, directors, employees, stockholders and agents.
12.15 Confidentiality. The Company and Concur each confirm that they
have entered into a nondisclosure agreement and that they are each bound by, and
will abide by, the provisions of such agreement (except that Concur will cease
to be bound by the agreement after the Merger becomes effective). If this
Agreement is terminated, all copies of documents containing confidential
information of a disclosing party will be returned by the receiving party to the
disclosing party or be destroyed, as provided in the nondisclosure agreement.
12.16 Entire Agreement. This Agreement and the exhibits hereto
constitute the entire understanding and agreement of the parties hereto with
respect to the subject matter hereof and supersede all prior and contemporaneous
agreements or understandings, inducements or conditions, express or implied,
written or oral, between the parties with respect hereto other than the
Confidentiality Agreement. The express terms hereof control and supersede any
course of performance or usage of the trade inconsistent with any of the terms
hereof.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
CONCUR TECHNOLOGIES, INC. SEEKER SOFTWARE, INC.
By: /s/ STERLING WILSON By: /s/ ROBERT K. REID
-------------------------------- ---------------------------------
Its: EVP, OPERATIONS, CFO Its: PRESIDENT AND CEO
------------------------------- --------------------------------
CONSTAR ACQUISITION CORP.
By: /s/ STERLING WILSON
--------------------------------
Its: EVP, OPERATIONS, CFO
-------------------------------
[SIGNATURE PAGE TO AGREEMENT AND PLAN OF REORGANIZATION]
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LIST OF EXHIBITS
Exhibit A Shelf Registration Agreement
Exhibit B Amended and Restated Registration Rights Agreement
Exhibit C Escrow Agreement
Exhibit D Forms of Tax Representation Certificates
Exhibit E Company Stockholder Consent
Exhibit F Company Affiliate Agreement
Exhibit G Company Financial Statements
Exhibit H Matters to be covered in the opinion of Fenwick & West, LLP
Exhibit I Matters to be covered in the opinion of Morrison & Foerster LLP
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EXHIBIT D-1
TAX CERTIFICATE OF CONCUR TECHNOLOGIES, INC.
AND
CONSTAR ACQUISITION CORP.
MAY 31, 1999
Morrison & Foerster LLP
755 Page Mill Road
Palo Alto, California 94304
Fenwick & West LLP
Two Palo Alto Square
Palo Alto, California 94306
The undersigned officers of Concur Technologies, Inc., a Delaware
corporation ("CONCUR"), and ConStar Acquisition Corp., a Delaware corporation
that is a wholly-owned subsidiary of Concur ("MERGER SUB"), on behalf of Concur
and Merger Sub, respectively, after consulting with legal counsel and financial
auditors regarding the meaning of and the factual support for the following
representations, hereby represent, in connection with the proposed merger of
Merger Sub with and into Seeker Software Inc., a Delaware corporation
("SEEKER"), with Seeker surviving the merger (the "MERGER"), all pursuant the
Agreement and Plan of Reorganization by and among Concur, Seeker, and Merger
Sub, dated as of May 26, 1999, and exhibits thereto (collectively, the
"AGREEMENT"),(1) that the following facts are now true, and will continue to be
true as of the Closing Date and Effective Time for the Merger, and thereafter as
relevant:
1. Merger Sub is a newly-formed corporation that was created for the
sole purpose of facilitating Concur's acquisition of Seeker. It has not
conducted and is not conducting any business activities and has no significant
assets.
2. Following the Merger, Seeker will hold at least 90% of the fair
market value of Merger Sub's net assets, and at least 70% of the fair market
value of Merger Sub's gross assets, as held immediately prior to the Merger,
and, to the knowledge of Concur, at least 90% of the fair market value of
Seeker's net assets and at least 70% of the fair market value of the gross
assets held by Seeker immediately prior to the Merger. For purposes of this
representation, assets of Merger Sub or Seeker held immediately prior to the
Merger include amounts paid or incurred by Merger Sub or Seeker in connection
with the Merger, including amounts used to pay reorganization expenses, and all
payments, redemptions and distributions (except for regular, normal dividends)
made by Seeker contemporaneously with, in contemplation of, or as part of the
Merger.
3. Prior to the Merger, Concur will be in Control of Merger Sub. As used
herein, "CONTROL" shall mean ownership of stock possessing at least 80% of the
total combined voting
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(1) Unless otherwise indicated, all capitalized terms shall have the meaning
defined in the Agreement.
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power of all classes of stock entitled to vote and at least 80% of the total
number of shares of each other class of stock of the corporation. For purposes
of determining Control, a person shall not be considered to own voting stock if
rights to vote such stock (or to restrict or otherwise control the voting of
such stock) are held by a third party (including a voting trust) other than an
agent of such person.
4. Concur will acquire Control of Seeker in the Merger solely in
exchange for Concur voting common stock. For purposes of this representation,
any purchases of Seeker stock exchanged for cash or other property originating
with Concur will be treated as outstanding Seeker stock at the Effective Time.
5. Concur has no plan or intention to cause Seeker to issue, after the
Merger, additional shares of stock (or rights to acquire shares of Seeker stock)
that would result in Concur losing Control of Seeker.
6. Concur has no plan or intention (a "PLAN") directly or indirectly
(through one or more related parties) to engage in any Purchases (as defined
below) of any of its voting common stock issued in the Merger. For this purpose,
the principles and definitions set forth in subparagraph (a)-(c) below shall be
applicable.
(a) "Purchases" shall be limited to any sale, exchange, transfer,
pledge, disposition or any other transaction that results in a direct or
indirect transfer of the risk of ownership to Concur, any person related to
Concur, Seeker, or any person related to Seeker.
(b) The determination of whether a person is related to Concur
and/or Seeker shall be made in accordance with Treas. Reg. Section
1.368-1(e)(3).
(c) Shares of Seeker stock with respect to which Purchases occur
or have occurred during the pre-Merger Period shall be considered shares of
Seeker stock that are outstanding immediately prior to the Merger, are exchanged
for Concur stock in the Merger and are then disposed of in Purchases pursuant to
a Plan.
7. Concur does not have a stock repurchase program in effect and has no
plan or intention to adopt any such program in connection with the Merger.
8. Except for transfers described in Section 368(a)(2)(C) of the 1986
Internal Revenue Code, as amended (the "CODE") or Treas. Reg. Section
1.368-2(k)(2), Concur has no plan or intention to: (i) cause Seeker to sell,
transfer or otherwise dispose of any of its assets or of any of the assets
acquired from Merger Sub except for dispositions made in the ordinary course of
business or for the payment of expenses incurred by Seeker in the Merger; (ii)
liquidate Seeker; (iii) merge Seeker with or into another corporation including
Concur or its affiliates; or (iv) sell, distribute or otherwise dispose of the
stock of Seeker.
9. At the Effective Time, Merger Sub's liabilities will not exceed the
tax basis of its assets.
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10. Concur intends that, following the Merger, Seeker will continue its
historic business or Seeker will use a significant portion of Seeker's historic
business assets in a business. For this purpose, Seeker shall be treated as
continuing the business and holding the assets of related entities, as described
in Treas. Reg. Section 1.368-1(d)(4).
11. Neither Concur nor any Concur subsidiary owns, or has owned during
the past five years, directly or indirectly, any shares of Seeker stock, or the
right to acquire or vote any such stock.
12. No shareholder of Seeker is acting as agent for Concur in connection
with the Merger or approval thereof, and Concur will not reimburse any Seeker
shareholder for Seeker stock such shareholder may have purchased or for other
obligations such shareholder may have incurred.
13. The transfer of cash to Seeker shareholders in lieu of fractional
Concur voting common stock shares, if any, is solely for the purpose of avoiding
the expense and inconvenience to Concur of accounting for fractional shares and
does not represent separately bargained-for consideration. The total cash
consideration that will be paid in the Merger to holders of Seeker stock in lieu
of issuing fractional shares will not exceed 1% of the total consideration to be
issued in the Merger. The fractional share interests of each holder of Seeker
stock will be aggregated and, to the knowledge of Concur, no holder of Seeker
stock will receive cash in an amount equal to or greater in value than one full
share of Concur stock.
14. Except with respect to payments of cash in lieu of fractional shares
of Concur voting common stock and cash paid for Seeker dissenting shares, if
any, 100% of the Seeker stock outstanding immediately prior to the Merger will
be exchanged solely for Concur voting common stock. Thus, except as set forth in
the preceding sentence, Merger Sub and Concur intend that no consideration other
than Concur voting common stock be paid or received (directly or indirectly,
actually or constructively) for Seeker stock.
15. The total fair market value of all consideration other than Concur
voting common stock received by Seeker shareholders in exchange for their Seeker
stock in the Merger (including, without limitation, cash paid to Seeker
shareholders in lieu of fractional shares of Concur voting common stock and cash
for Seeker Dissenting Shares) will be less than [10%] of the aggregate fair
market value of Seeker stock outstanding immediately prior to the Merger.
16. No shares of Merger Sub have been or will be used as consideration
or issued to shareholders of Seeker in the Merger.
17. Concur, Merger Sub, Seeker and the Seeker shareholders will each pay
its or their own expenses in connection with the Merger as contemplated by the
Agreement, except as otherwise provided in the Agreement; provided, however,
that to the extent any expenses relating to the Merger (or the "plan of
reorganization" within the meaning of Treas. Reg. Section 1.368-1(c) with
respect to the Merger) are funded directly or indirectly by a party other than
the incurring party, such expenses will be within the guidelines established in
Rev. Rul. 73-54, 1973-1 C.B. 187.
-3-
54
18. There is no intercorporate indebtedness existing between Concur and
Seeker or between Merger Sub and Seeker that was issued, acquired, or will be
settled at a discount, and Concur will assume no liabilities of Seeker or any
Seeker shareholder in connection with the Merger.
19. None of the payments to be received by any shareholder-employee of
Seeker which are designated as compensation are actually separate consideration
for, or allocable to, any of their shares of Seeker stock; and the compensation
to be paid to any shareholder of Seeker will be for services actually rendered
and will be commensurate with amounts paid to third parties bargaining at arm's
length for similar services.
20. The Merger is being undertaken for a valid non-tax business purpose.
The Merger will be carried out strictly in accordance with the Agreement, and
none of the material terms and conditions thereof have been or will be waived or
modified.
21. The consideration to be received in the Merger by holders of Seeker
stock was determined by arm's-length negotiations between the managements of
Concur and Seeker.
22. There are no other agreements, arrangements or understandings among
any of Concur, Merger Sub, Seeker and/or any of their subsidiaries, affiliates
or shareholders other than those described or referenced in the Agreement.
23. Concur will not take any position on any federal, state or local
income or franchise tax return, or take any tax reporting position, that is
inconsistent with the treatment of the Merger as a "reorganization" within the
meaning of section 368(a) of the Code unless otherwise required by a
"determination" (as defined in section 1313(a)(1) of the Code) or by applicable
state or local income or franchise tax law.
24. Concur and Merger Sub are authorized to make all of the
representations set forth herein, and the undersigned are authorized to execute
this certificate on behalf of Concur and Merger Sub.
The undersigned recognize that counsel to and auditors for Seeker and
counsel to and auditors for Concur and Merger Sub will rely upon the foregoing
representations in evaluating the US federal income tax consequences of the
Merger. If, prior to the Effective Time, any of the representations set forth
herein cease to be accurate in any material
-4-
55
respect, the undersigned agree to deliver immediately a written notice to that
effect. The undersigned recognize that your opinions will not address any tax
consequences of the Merger or any action taken in connection therewith except as
expressly set forth in such opinions.
CONCUR TECHNOLOGIES, INC.,
a Delaware corporation
By /s/ S. STEVEN SINGH
-----------------------------------
S. Steven Singh
President and Chief Executive Officer
By /s/ STERLING R. WILSON
-----------------------------------
Sterling R. Wilson
Chief Financial Officer
CONSTAR ACQUISITION CORP.
a Delaware corporation
By /s/ S. STEVEN SINGH
-----------------------------------
S. Steven Singh
President and Chief Executive Officer
By /s/ STERLING R. WILSON
-----------------------------------
Sterling R. Wilson
Chief Financial Officer
-5-
56
EXHIBIT D-2
TAX CERTIFICATE OF SEEKER SOFTWARE, INC.
MAY 31, 1999
Morrison & Foerster LLP
755 Page Mill Road
Palo Alto, California 94304
Fenwick & West LLP
Two Palo Alto Square
Palo Alto, California 94306
The undersigned Seeker Software Inc., a Delaware corporation
("SEEKER"), after consulting with legal counsel and financial auditors regarding
the meaning of and the factual support for the following representations, hereby
represents, in connection with the proposed merger of ConStar Acquisition Corp.,
a Delaware corporation ("MERGER SUB") and a wholly-owned subsidiary of Concur
Technologies, Inc., a Delaware corporation ("CONCUR"), with and into Seeker,
with Seeker surviving the merger (the "MERGER"), all pursuant to the Agreement
and Plan of Reorganization by and among Concur, Seeker, and Merger Sub, dated as
of May 26, 1999, and exhibits thereto (collectively, the "AGREEMENT"),(1) that
the following facts are now true, and will continue to be true as of the Closing
Date and Effective Time for the Merger, and thereafter as relevant:
1. Following the transaction, Seeker will hold at least 90% of the fair
market value of its net assets, at least 70% of the fair market value of its
gross assets, at least 90% of the fair market value of Merger Sub's net assets,
and at least 70% of the fair market value of Merger Sub's gross assets, as held
immediately prior to the transaction. For purposes of this representation,
assets of Merger Sub or Seeker held immediately prior to the Merger include
amounts paid or incurred by Merger Sub or Seeker in connection with the Merger,
including amounts used to pay reorganization expenses, and all payments,
redemptions and distributions (except for regular, normal dividends) made by
Seeker contemporaneously with, in contemplation of, or as part of the Merger.
2. Seeker has made no transfer of any of its assets (including any
distribution of assets with respect to, or in redemption of, stock) in
contemplation of the Merger or during the Pre-Merger Period other than (i) in
the ordinary course of business, and (ii) payments for expenses incurred in
connection with the Merger.
3. In the Merger, shares of Seeker stock representing Control of Seeker
will be exchanged solely for voting common stock of Concur; upon completion of
the Merger, there will exist no rights of any kind (including without limitation
warrants, options, convertible securities, contingent rights, informal or
unwritten rights) to acquire Seeker stock or to vote (or restrict or
- --------
(1) Unless otherwise indicated, all capitalized terms shall have the meaning
defined in the Agreement.
57
otherwise control the vote of) Seeker stock which, if exercised, could affect
Concur's acquisition and retention of Control of Seeker. For purposes of this
representation, shares of Seeker stock exchanged for cash or other property
originating with Concur will be treated as Seeker stock outstanding on the date
of the Merger but not exchanged for voting common stock of Concur. As used
herein, the term "CONTROL" shall mean ownership of stock possessing at least 80%
of the total combined voting power of all classes of stock entitled to vote and
at least 80% of the total number of shares of each other class of stock of the
corporation. For purposes of determining Control, a person shall not be
considered to own voting stock if rights to vote such stock (or to restrict or
otherwise control the voting of such stock) are held by a third party (including
a voting trust) other than an agent of such person.
4. At the Effective Time of the Merger, there will be no accrued but
unpaid dividends on shares of Seeker stock.
5. At the Effective Time of the Merger, the fair market value of
Seeker's assets will exceed the sum of its liabilities, plus the amount of
liabilities, if any, to which the assets are subject.
6. The total fair market value of all consideration other than Concur
voting common stock received by Seeker shareholders in exchange for their Seeker
stock in the Merger (including, without limitation, cash paid to Seeker
shareholders in lieu of fractional shares of Concur voting common stock) will be
less than 10% of the aggregate fair market value of Seeker stock outstanding
immediately prior to the Merger.
7. Seeker has no obligation, understanding, agreement or intention to
issue additional shares of stock after the Merger that would result in Concur
losing Control of Seeker.
8. To the best of Seeker's knowledge and belief, following the Merger,
Concur will continue Seeker's historic business or use a significant portion of
Seeker's historic business assets in a business. For this purpose, Concur shall
be treated as continuing the business and holding the assets of related
entities, as described in Treas. Reg. Section 1.368-1(d)(4).
9. Seeker has no plan or intention, and is under no obligation, to
discontinue its business, to sell or otherwise dispose of any of its assets or
of any of the assets acquired from Merger Sub in the Merger except for
dispositions made in the ordinary course of business, the payment of expenses
incurred by Seeker pursuant to the Merger, or transfers of assets to a
corporation controlled by Seeker, as described in Section 368(a)(2)(c) of the
1986 Internal Revenue Code, as amended (the "CODE"), and Treas. Reg. Section
1.368-2(k).
10. Seeker has no knowledge of any plan or intention of Concur to
reacquire any of its stock issued pursuant to the Merger.
11. The transfer of cash to Seeker shareholders in lieu of fractional
Concur voting common stock shares, if any, is solely for the purpose of avoiding
the expense and inconvenience to Concur of accounting for fractional shares and
does not represent separately bargained-for consideration. The total cash
consideration that will be paid in the Merger to holders of Seeker stock in lieu
of issuing fractional shares will not exceed 1% of the total consideration to be
issued in the Merger. The fractional share interests of each holder of Seeker
stock will be aggregated
-2-
58
and, to the knowledge of Concur, no holder of Seeker stock will receive cash in
an amount equal to or greater in value than one full share of Concur stock.
12. Except with respect to payments of cash to Seeker shareholders in
lieu of fractional shares of Concur voting common stock and cash paid for Seeker
Dissenting Shares, if any, or as otherwise provided in the Agreement, 100% of
the Seeker stock outstanding immediately prior to the Merger will be exchanged
solely for Concur voting common stock. Thus, except as set forth in the
preceding sentence, Seeker intends that no consideration other than Concur
voting common stock be paid or received (directly or indirectly, actually or
constructively) for Seeker stock.
13. Concur, Merger Sub, Seeker and the Seeker shareholders will each pay
its or their own expenses in connection with the Merger as contemplated by the
Agreement, except as otherwise provided in the Agreement; provided, however,
that to the extent any expenses relating to the Merger (or the "plan of
reorganization" within the meaning of Treas. Reg. Section 1.368-1(c) with
respect to the Merger) are funded directly or indirectly by a party other than
the incurring party, such expenses will be within the guidelines established in
Rev. Rul. 73-54, 1973-1 C.B. 187.
14. There is no intercorporate indebtedness existing between Concur and
Seeker or between Merger Sub and Seeker that was issued, acquired, or will be
settled at a discount, and to the best knowledge of the management of Seeker,
Concur will assume no liabilities of Seeker or any Seeker shareholder in
connection with the Merger.
15. None of the payments received by any shareholder-employee of Seeker
which have been designated as compensation are actually separate consideration
for, or allocable to, any of their shares of Seeker stock; and the compensation
paid to any shareholder of Seeker will be for services actually rendered and
will be commensurate with amounts paid to third parties bargaining at arm's
length for similar services.
16. Seeker is not a regulated investment company, a real estate
investment trust, or a corporation 50% or more of the value of whose total
assets are stock and securities and 80% or more of the value of whose total
assets are assets held for investment. In making the 50% and 80% determinations
under the preceding sentence, stock and securities in any subsidiary corporation
shall be disregarded and the parent corporation shall be deemed to own its
ratable share of the subsidiary's assets, and a corporation shall be considered
a subsidiary if the parent owns 50% or more of the combined voting power of all
classes of stock entitled to vote, or 50% or more of the total value of shares
of all classes of stock outstanding. In addition, for purposes of this
representation, in determining total assets there shall be excluded cash and
cash items (including receivables), Government securities and assets acquired
(through incurring indebtedness or otherwise) for purposes of ceasing to be a
company described in the first sentence of this representation.
17. Seeker is not under the jurisdiction of a court in a title 11 or
similar case within the meaning of section 368(a)(3)(A) of the Code.
-3-
59
18. The Merger is being undertaken for a valid non-tax business purpose.
The Merger will be carried out strictly in accordance with the Agreement, and
none of the material terms and conditions thereof have been or will be waived or
modified.
19. The consideration to be received in the Merger by holders of Seeker
stock was determined by arm's-length negotiations between the managements of
Concur and Seeker.
20. There are no other agreements, arrangements or understandings among
any of Concur, Merger Sub, Seeker and/or any of their subsidiaries, affiliates
or shareholders other than those described or referenced in the Agreement.
21. Seeker will not take any position on any federal, state or local
income or franchise tax return, or take any tax reporting position, that is
inconsistent with the treatment of the Merger as a "reorganization" within the
meaning of section 368(a) of the Code unless otherwise required by a
"determination" (as defined in section 1313(a)(1) of the Code) or by applicable
state or local income or franchise tax law.
22. Seeker is authorized to make all of the representations set forth
herein, and the undersigned is authorized to execute this certificate on behalf
of Seeker.
The undersigned recognizes that counsel to and auditors for
Seeker and counsel to and auditors for Concur and Merger Sub will rely upon the
foregoing representations in evaluating the federal income tax consequences of
the Merger. If, prior to the Effective Time, any of the representations set
forth herein cease to be accurate in any material respect, the undersigned
agrees to deliver immediately a written notice to that effect. The undersigned
recognizes that your opinions will not address any tax consequences of the
Merger or any action taken in connection therewith except as expressly set forth
in such opinions.
SEEKER SOFTWARE, INC.,
a Delaware corporation
By /s/ ROBERT K. REID
-----------------------------------
DATE: 5/31/99
---------------------------------
By /s/ DAVID HANSON
-----------------------------------
DATE: 5/31/99
---------------------------------
-4-
60
STOCKHOLDER AGREEMENT AND CONSENT
The undersigned ("STOCKHOLDER") stockholder of Seeker Software, Inc., a
Delaware corporation (the "COMPANY"), hereby delivers to the Company this
Agreement and Consent of Stockholder (this "CONSENT"), effective as of May 26,
1999 (the "EFFECTIVE DATE") or, if later, the date on which this Consent is
delivered to the Company.
1. CONSENT TO MERGER. Stockholder hereby consents to and approves the
adoption of the following resolutions, without a meeting, pursuant to Section
228 of the Delaware General Corporation Law and the Bylaws of the Company,
effective as of the Effective Date (this Consent applies to all Stockholder's
shares of capital stock of the Company (the "SHARES"):
WHEREAS, the Board of Directors of the Company has determined that it is
in the best interests of the Company and the Company's stockholders that
the Company be acquired by Concur Technologies, Inc., a Delaware
corporation ("CONCUR"), in a merger (the "MERGER") whereby a
wholly-owned subsidiary of Concur ("SUB") merges into the Company so
that the Company becomes a wholly-owned subsidiary of Concur, pursuant
to an Agreement and Plan of Reorganization (the "PLAN") among Concur,
Sub and the Company, the Escrow Agreement provided for in the Plan (the
"ESCROW AGREEMENT") and the other agreements to be entered into by the
Company pursuant to the Plan (the "RELATED AGREEMENTS");
RESOLVED, that the Merger, the Plan, the Escrow Agreement and the
Related Agreements, each in substantially the form provided to me with
such changes as the Company's Chief Executive Officer may approve, are
hereby approved.
2. REPRESENTATIONS, WARRANTIES AND COVENANTS. As a material inducement and
consideration for Concur to execute and enter into the Plan, Stockholder hereby
represents, warrants and covenants to Concur as follows:
Knowledge and Experience. Stockholder, either alone or with
Stockholder's purchaser representative (the "PURCHASER REPRESENTATIVE"), if any,
has such knowledge and experience in financial and business matters that
Stockholder is capable of evaluating the risks and merits of the Merger and the
conversion in the Merger of Stockholder's shares of capital stock of the Company
into shares of Common Stock of Concur and the conversion in the Merger of any
stock options Stockholder may have (to purchase shares of the Company's capital
stock) into options to purchase Concur Common Stock (the "CONCUR OPTIONS"), on
the terms and conditions set forth in the Plan, the Escrow Agreement and the
Merger. (The shares of Concur Common Stock that Stockholder acquires in the
Merger, or upon exercise of any Concur Options, are referred to as the
"RESTRICTED SECURITIES.")
Awareness. Stockholder acknowledges that the Restricted Securities
involve a degree of risk and is aware of the lack of liquidity of the Restricted
Securities. Stockholder or the Purchaser Representative, if any, appreciates the
financial hazards involved in acquiring the Restricted Securities.
Information. Stockholder acknowledges that Stockholder and the Purchaser
Representative, if any, have received copies of the Plan, its exhibits and
related documents, copies of documents regarding Concur (including a prospectus
for Concur's April 1999 public offering and Concur's report for the quarter
ended March 31, 1999) and copies of documents regarding the Company (including
61
documents describing its business, management and other matters, its financial
statements and other documents) and have had the opportunity to obtain such
additional information (including the opportunity to ask questions of, and
receive answers from, the Company and Concur) that Stockholder or the Purchaser
Representative, if any, considers pertinent in connection with executing this
Consent.
Purpose. Stockholder will acquire the Restricted Securities for
Stockholder's own account only and not with a view to, or for resale in
connection with, any unlawful "distribution" thereof within the meaning of the
Securities Act of 1933.
Changes. Stockholder covenants (a) to vote the Shares (and any other of
capital stock of the Company that Stockholder may hereafter acquire) against
approval of any proposal made in opposition to or in competition with
consummation of the Merger and against any other proposal for any action by the
Company that would be in conflict, or inconsistent with, the Merger or the Plan
and (b) not to revoke this Consent.
No Transfer Before Merger. In addition to the restrictions on transfer
under the securities laws, Stockholder agrees not to transfer, pledge or
otherwise dispose of or encumber the Shares, or to make any offer or agreement
relating to any Shares, at any time prior to the Merger (unless and until the
Plan is terminated before then in accordance with its terms) and, if Stockholder
has entered into a Company Affiliate Agreement, only in compliance with that
agreement.
Post-Merger Resale Restrictions. In addition to the restrictions imposed
under Section 3 of this Agreement, the provisions of Rule 144 will limit
Shareholder's public resales of the Restricted Securities for a period of at
least one year (or in some cases two years) after the Merger, and thereafter if
and for so long as Stockholder is an affiliate of Concur. Stockholder
acknowledges that Concur may give stop transfer instructions to its transfer
agent, and have legends placed on certificates evidencing the Restricted
Securities, as deemed appropriate by Concur to reflect the applicable
restrictions on transfer.
Escrow. Stockholder agrees to the Escrow Agreement, to having a portion
of the Restricted Securities placed in escrow as provided therein and to the
appointment of Gary Durbin, Robert Reid and Jon Blankmeyer as such Stockholder's
Representatives thereunder.
Representations and Warranties. Stockholder will have good, valid and
marketable title to the Shares at the Effective Date, free and clear of all
liens, claims and encumbrances, and agrees to indemnify Concur, its officers,
directors and stockholders if Stockholder does not have such title. Stockholder
has no knowledge that any representation or warranty of the Company in Article 3
of the Plan is false or, by failing to disclose a material fact, is misleading.
This consent is executed by Stockholder as of the date below.
STOCKHOLDER
ADVANCED TECHNOLOGY VENTURES IV, L.P.
By: /s/ Steven Baloff
----------------------------------
Name:
Date: 5-25-99
----------------------------------
62
documents describing its business, management and other matters, its financial
statements and other documents) and have had the opportunity to obtain such
additional information (including the opportunity to ask questions of, and
receive answers from, the Company and Concur) that Stockholder or the Purchaser
Representative, if any, considers pertinent in connection with executing this
Consent.
Purpose. Stockholder will acquire the Restricted Securities for
Stockholder's own account only and not with a view to, or for resale in
connection with, any unlawful "distribution" thereof within the meaning of the
Securities Act of 1933.
Changes. Stockholder covenants (a) to vote the Shares (and any other of
capital stock of the Company that Stockholder may hereafter acquire) against
approval of any proposal made in opposition to or in competition with
consummation of the Merger and against any other proposal for any action by the
Company that would be in conflict, or inconsistent with, the Merger or the Plan
and (b) not to revoke this Consent.
No Transfer Before Merger. In addition to the restrictions on transfer
under the securities laws, Stockholder agrees not to transfer, pledge or
otherwise dispose of or encumber the Shares, or to make any offer or agreement
relating to any Shares, at any time prior to the Merger (unless and until the
Plan is terminated before then in accordance with its terms) and, if Stockholder
has entered into a Company Affiliate Agreement, only in compliance with that
agreement.
Post-Merger Resale Restrictions. In addition to the restrictions imposed
under Section 3 of this Agreement, the provisions of Rule 144 will limit
Shareholder's public resales of the Restricted Securities for a period of at
least one year (or in some cases two years) after the Merger, and thereafter if
and for so long as Stockholder is an affiliate of Concur. Stockholder
acknowledges that Concur may give stop transfer instructions to its transfer
agent, and have legends placed on certificates evidencing the Restricted
Securities, as deemed appropriate by Concur to reflect the applicable
restrictions on transfer.
Escrow. Stockholder agrees to the Escrow Agreement, to having a portion
of the Restricted Securities placed in escrow as provided therein and to the
appointment of Gary Durbin, Robert Reid and Jon Blankmeyer as such Stockholder's
Representatives thereunder.
Representations and Warranties. Stockholder will have good, valid and
marketable title to the Shares at the Effective Date, free and clear of all
liens, claims and encumbrances, and agrees to indemnify Concur, its officers,
directors and stockholders if Stockholder does not have such title. Stockholder
has no knowledge that any representation or warranty of the Company in Article 3
of the Plan is false or, by failing to disclose a material fact, is misleading.
This consent is executed by Stockholder as of the date below.
STOCKHOLDER
/s/ Janet Alvies
----------------------------------------
Janet Alvies
Date: May 29, 1999
----------------------------------
63
documents describing its business, management and other matters, its financial
statements and other documents) and have had the opportunity to obtain such
additional information (including the opportunity to ask questions of, and
receive answers from, the Company and Concur) that Stockholder or the Purchaser
Representative, if any, considers pertinent in connection with executing this
Consent.
Purpose. Stockholder will acquire the Restricted Securities for
Stockholder's own account only and not with a view to, or for resale in
connection with, any unlawful "distribution" thereof within the meaning of the
Securities Act of 1933.
Changes. Stockholder covenants (a) to vote the Shares (and any other of
capital stock of the Company that Stockholder may hereafter acquire) against
approval of any proposal made in opposition to or in competition with
consummation of the Merger and against any other proposal for any action by the
Company that would be in conflict, or inconsistent with, the Merger or the Plan
and (b) not to revoke this Consent.
No Transfer Before Merger. In addition to the restrictions on transfer
under the securities laws, Stockholder agrees not to transfer, pledge or
otherwise dispose of or encumber the Shares, or to make any offer or agreement
relating to any Shares, at any time prior to the Merger (unless and until the
Plan is terminated before then in accordance with its terms) and, if Stockholder
has entered into a Company Affiliate Agreement, only in compliance with that
agreement.
Post-Merger Resale Restrictions. In addition to the restrictions imposed
under Section 3 of this Agreement, the provisions of Rule 144 will limit
Shareholder's public resales of the Restricted Securities for a period of at
least one year (or in some cases two years) after the Merger, and thereafter if
and for so long as Stockholder is an affiliate of Concur. Stockholder
acknowledges that Concur may give stop transfer instructions to its transfer
agent, and have legends placed on certificates evidencing the Restricted
Securities, as deemed appropriate by Concur to reflect the applicable
restrictions on transfer.
Escrow. Stockholder agrees to the Escrow Agreement, to having a portion
of the Restricted Securities placed in escrow as provided therein and to the
appointment of Gary Durbin, Robert Reid and Jon Blankmeyer as such Stockholder's
Representatives thereunder.
Representations and Warranties. Stockholder will have good, valid and
marketable title to the Shares at the Effective Date, free and clear of all
liens, claims and encumbrances, and agrees to indemnify Concur, its officers,
directors and stockholders if Stockholder does not have such title. Stockholder
has no knowledge that any representation or warranty of the Company in Article 3
of the Plan is false or, by failing to disclose a material fact, is misleading.
This consent is executed by Stockholder as of the date below.
STOCKHOLDER
/s/ Nan Ayers
----------------------------------------
Nan Ayers
Date: 5/29/99
----------------------------------
64
documents describing its business, management and other matters, its financial
statements and other documents) and have had the opportunity to obtain such
additional information (including the opportunity to ask questions of, and
receive answers from, the Company and Concur) that Stockholder or the Purchaser
Representative, if any, considers pertinent in connection with executing this
Consent.
Purpose. Stockholder will acquire the Restricted Securities for
Stockholder's own account only and not with a view to, or for resale in
connection with, any unlawful "distribution" thereof within the meaning of the
Securities Act of 1933.
Changes. Stockholder covenants (a) to vote the Shares (and any other of
capital stock of the Company that Stockholder may hereafter acquire) against
approval of any proposal made in opposition to or in competition with
consummation of the Merger and against any other proposal for any action by the
Company that would be in conflict, or inconsistent with, the Merger or the Plan
and (b) not to revoke this Consent.
No Transfer Before Merger. In addition to the restrictions on transfer
under the securities laws, Stockholder agrees not to transfer, pledge or
otherwise dispose of or encumber the Shares, or to make any offer or agreement
relating to any Shares, at any time prior to the Merger (unless and until the
Plan is terminated before then in accordance with its terms) and, if Stockholder
has entered into a Company Affiliate Agreement, only in compliance with that
agreement.
Post-Merger Resale Restrictions. In addition to the restrictions imposed
under Section 3 of this Agreement, the provisions of Rule 144 will limit
Shareholder's public resales of the Restricted Securities for a period of at
least one year (or in some cases two years) after the Merger, and thereafter if
and for so long as Stockholder is an affiliate of Concur. Stockholder
acknowledges that Concur may give stop transfer instructions to its transfer
agent, and have legends placed on certificates evidencing the Restricted
Securities, as deemed appropriate by Concur to reflect the applicable
restrictions on transfer.
Escrow. Stockholder agrees to the Escrow Agreement, to having a portion
of the Restricted Securities placed in escrow as provided therein and to the
appointment of Gary Durbin, Robert Reid and Jon Blankmeyer as such Stockholder's
Representatives thereunder.
Representations and Warranties. Stockholder will have good, valid and
marketable title to the Shares at the Effective Date, free and clear of all
liens, claims and encumbrances, and agrees to indemnify Concur, its officers,
directors and stockholders if Stockholder does not have such title. Stockholder
has no knowledge that any representation or warranty of the Company in Article 3
of the Plan is false or, by failing to disclose a material fact, is misleading.
This consent is executed by Stockholder as of the date below.
STOCKHOLDER
/s/ Baharak Bavand
----------------------------------------
Baharak Bavand
Date: 5/28/1999
----------------------------------
65
documents describing its business, management and other matters, its financial
statements and other documents) and have had the opportunity to obtain such
additional information (including the opportunity to ask questions of, and
receive answers from, the Company and Concur) that Stockholder or the Purchaser
Representative, if any, considers pertinent in connection with executing this
Consent.
Purpose. Stockholder will acquire the Restricted Securities for
Stockholder's own account only and not with a view to, or for resale in
connection with, any unlawful "distribution" thereof within the meaning of the
Securities Act of 1933.
Changes. Stockholder covenants (a) to vote the Shares (and any other of
capital stock of the Company that Stockholder may hereafter acquire) against
approval of any proposal made in opposition to or in competition with
consummation of the Merger and against any other proposal for any action by the
Company that would be in conflict, or inconsistent with, the Merger or the Plan
and (b) not to revoke this Consent.
No Transfer Before Merger. In addition to the restrictions on transfer
under the securities laws, Stockholder agrees not to transfer, pledge or
otherwise dispose of or encumber the Shares, or to make any offer or agreement
relating to any Shares, at any time prior to the Merger (unless and until the
Plan is terminated before then in accordance with its terms) and, if Stockholder
has entered into a Company Affiliate Agreement, only in compliance with that
agreement.
Post-Merger Resale Restrictions. In addition to the restrictions imposed
under Section 3 of this Agreement, the provisions of Rule 144 will limit
Shareholder's public resales of the Restricted Securities for a period of at
least one year (or in some cases two years) after the Merger, and thereafter if
and for so long as Stockholder is an affiliate of Concur. Stockholder
acknowledges that Concur may give stop transfer instructions to its transfer
agent, and have legends placed on certificates evidencing the Restricted
Securities, as deemed appropriate by Concur to reflect the applicable
restrictions on transfer.
Escrow. Stockholder agrees to the Escrow Agreement, to having a portion
of the Restricted Securities placed in escrow as provided therein and to the
appointment of Gary Durbin, Robert Reid and Jon Blankmeyer as such Stockholder's
Representatives thereunder.
Representations and Warranties. Stockholder will have good, valid and
marketable title to the Shares at the Effective Date, free and clear of all
liens, claims and encumbrances, and agrees to indemnify Concur, its officers,
directors and stockholders if Stockholder does not have such title. Stockholder
has no knowledge that any representation or warranty of the Company in Article 3
of the Plan is false or, by failing to disclose a material fact, is misleading.
This consent is executed by Stockholder as of the date below.
STOCKHOLDER
/s/ Jon T. Blankmeyer
----------------------------------------
Jon T. Blankmeyer
Date: 5/25/99
----------------------------------
66
documents describing its business, management and other matters, its financial
statements and other documents) and have had the opportunity to obtain such
additional information (including the opportunity to ask questions of, and
receive answers from, the Company and Concur) that Stockholder or the Purchaser
Representative, if any, considers pertinent in connection with executing this
Consent.
Purpose. Stockholder will acquire the Restricted Securities for
Stockholder's own account only and not with a view to, or for resale in
connection with, any unlawful "distribution" thereof within the meaning of the
Securities Act of 1933.
Changes. Stockholder covenants (a) to vote the Shares (and any other of
capital stock of the Company that Stockholder may hereafter acquire) against
approval of any proposal made in opposition to or in competition with
consummation of the Merger and against any other proposal for any action by the
Company that would be in conflict, or inconsistent with, the Merger or the Plan
and (b) not to revoke this Consent.
No Transfer Before Merger. In addition to the restrictions on transfer
under the securities laws, Stockholder agrees not to transfer, pledge or
otherwise dispose of or encumber the Shares, or to make any offer or agreement
relating to any Shares, at any time prior to the Merger (unless and until the
Plan is terminated before then in accordance with its terms) and, if Stockholder
has entered into a Company Affiliate Agreement, only in compliance with that
agreement.
Post-Merger Resale Restrictions. In addition to the restrictions imposed
under Section 3 of this Agreement, the provisions of Rule 144 will limit
Shareholder's public resales of the Restricted Securities for a period of at
least one year (or in some cases two years) after the Merger, and thereafter if
and for so long as Stockholder is an affiliate of Concur. Stockholder
acknowledges that Concur may give stop transfer instructions to its transfer
agent, and have legends placed on certificates evidencing the Restricted
Securities, as deemed appropriate by Concur to reflect the applicable
restrictions on transfer.
Escrow. Stockholder agrees to the Escrow Agreement, to having a portion
of the Restricted Securities placed in escrow as provided therein and to the
appointment of Gary Durbin, Robert Reid and Jon Blankmeyer as such Stockholder's
Representatives thereunder.
Representations and Warranties. Stockholder will have good, valid and
marketable title to the Shares at the Effective Date, free and clear of all
liens, claims and encumbrances, and agrees to indemnify Concur, its officers,
directors and stockholders if Stockholder does not have such title. Stockholder
has no knowledge that any representation or warranty of the Company in Article 3
of the Plan is false or, by failing to disclose a material fact, is misleading.
This consent is executed by Stockholder as of the date below.
STOCKHOLDER
BLANKMEYER FAMILY TRUST U/T/D
DATED FEBRUARY 18, 1993
/s/ Jon T. Blankmeyer
----------------------------------------
Name: Jon T. Blankmeyer, Trustee
Date: 5/25/99
----------------------------------
67
documents describing its business, management and other matters, its financial
statements and other documents) and have had the opportunity to obtain such
additional information (including the opportunity to ask questions of, and
receive answers from, the Company and Concur) that Stockholder or the Purchaser
Representative, if any, considers pertinent in connection with executing this
Consent.
Purpose. Stockholder will acquire the Restricted Securities for
Stockholder's own account only and not with a view to, or for resale in
connection with, any unlawful "distribution" thereof within the meaning of the
Securities Act of 1933.
Changes. Stockholder covenants (a) to vote the Shares (and any other of
capital stock of the Company that Stockholder may hereafter acquire) against
approval of any proposal made in opposition to or in competition with
consummation of the Merger and against any other proposal for any action by the
Company that would be in conflict, or inconsistent with, the Merger or the Plan
and (b) not to revoke this Consent.
No Transfer Before Merger. In addition to the restrictions on transfer
under the securities laws, Stockholder agrees not to transfer, pledge or
otherwise dispose of or encumber the Shares, or to make any offer or agreement
relating to any Shares, at any time prior to the Merger (unless and until the
Plan is terminated before then in accordance with its terms) and, if Stockholder
has entered into a Company Affiliate Agreement, only in compliance with that
agreement.
Post-Merger Resale Restrictions. In addition to the restrictions imposed
under Section 3 of this Agreement, the provisions of Rule 144 will limit
Shareholder's public resales of the Restricted Securities for a period of at
least one year (or in some cases two years) after the Merger, and thereafter if
and for so long as Stockholder is an affiliate of Concur. Stockholder
acknowledges that Concur may give stop transfer instructions to its transfer
agent, and have legends placed on certificates evidencing the Restricted
Securities, as deemed appropriate by Concur to reflect the applicable
restrictions on transfer.
Escrow. Stockholder agrees to the Escrow Agreement, to having a portion
of the Restricted Securities placed in escrow as provided therein and to the
appointment of Gary Durbin, Robert Reid and Jon Blankmeyer as such Stockholder's
Representatives thereunder.
Representations and Warranties. Stockholder will have good, valid and
marketable title to the Shares at the Effective Date, free and clear of all
liens, claims and encumbrances, and agrees to indemnify Concur, its officers,
directors and stockholders if Stockholder does not have such title. Stockholder
has no knowledge that any representation or warranty of the Company in Article 3
of the Plan is false or, by failing to disclose a material fact, is misleading.
This consent is executed by Stockholder as of the date below.
STOCKHOLDER
BRENTWOOD AFFILIATES FUND, L.P.
By: Brentwood VII Ventures, L.P.
By: /s/ Jeffrey Brody
----------------------------------
Name:
Date:
----------------------------------
68
documents describing its business, management and other matters, its financial
statements and other documents) and have had the opportunity to obtain such
additional information (including the opportunity to ask questions of, and
receive answers from, the Company and Concur) that Stockholder or the Purchaser
Representative, if any, considers pertinent in connection with executing this
Consent.
Purpose. Stockholder will acquire the Restricted Securities for
Stockholder's own account only and not with a view to, or for resale in
connection with, any unlawful "distribution" thereof within the meaning of the
Securities Act of 1933.
Changes. Stockholder covenants (a) to vote the Shares (and any other of
capital stock of the Company that Stockholder may hereafter acquire) against
approval of any proposal made in opposition to or in competition with
consummation of the Merger and against any other proposal for any action by the
Company that would be in conflict, or inconsistent with, the Merger or the Plan
and (b) not to revoke this Consent.
No Transfer Before Merger. In addition to the restrictions on transfer
under the securities laws, Stockholder agrees not to transfer, pledge or
otherwise dispose of or encumber the Shares, or to make any offer or agreement
relating to any Shares, at any time prior to the Merger (unless and until the
Plan is terminated before then in accordance with its terms) and, if Stockholder
has entered into a Company Affiliate Agreement, only in compliance with that
agreement.
Post-Merger Resale Restrictions. In addition to the restrictions imposed
under Section 3 of this Agreement, the provisions of Rule 144 will limit
Shareholder's public resales of the Restricted Securities for a period of at
least one year (or in some cases two years) after the Merger, and thereafter if
and for so long as Stockholder is an affiliate of Concur. Stockholder
acknowledges that Concur may give stop transfer instructions to its transfer
agent, and have legends placed on certificates evidencing the Restricted
Securities, as deemed appropriate by Concur to reflect the applicable
restrictions on transfer.
Escrow. Stockholder agrees to the Escrow Agreement, to having a portion
of the Restricted Securities placed in escrow as provided therein and to the
appointment of Gary Durbin, Robert Reid and Jon Blankmeyer as such Stockholder's
Representatives thereunder.
Representations and Warranties. Stockholder will have good, valid and
marketable title to the Shares at the Effective Date, free and clear of all
liens, claims and encumbrances, and agrees to indemnify Concur, its officers,
directors and stockholders if Stockholder does not have such title. Stockholder
has no knowledge that any representation or warranty of the Company in Article 3
of the Plan is false or, by failing to disclose a material fact, is misleading.
This consent is executed by Stockholder as of the date below.
STOCKHOLDER
/s/ Jeffrey Brody
----------------------------------------
Name: Brentwood Associates VII, L.P.
Date: 5-25-99
----------------------------------
69
documents describing its business, management and other matters, its financial
statements and other documents) and have had the opportunity to obtain such
additional information (including the opportunity to ask questions of, and
receive answers from, the Company and Concur) that Stockholder or the Purchaser
Representative, if any, considers pertinent in connection with executing this
Consent.
Purpose. Stockholder will acquire the Restricted Securities for
Stockholder's own account only and not with a view to, or for resale in
connection with, any unlawful "distribution" thereof within the meaning of the
Securities Act of 1933.
Changes. Stockholder covenants (a) to vote the Shares (and any other of
capital stock of the Company that Stockholder may hereafter acquire) against
approval of any proposal made in opposition to or in competition with
consummation of the Merger and against any other proposal for any action by the
Company that would be in conflict, or inconsistent with, the Merger or the Plan
and (b) not to revoke this Consent.
No Transfer Before Merger. In addition to the restrictions on transfer
under the securities laws, Stockholder agrees not to transfer, pledge or
otherwise dispose of or encumber the Shares, or to make any offer or agreement
relating to any Shares, at any time prior to the Merger (unless and until the
Plan is terminated before then in accordance with its terms) and, if Stockholder
has entered into a Company Affiliate Agreement, only in compliance with that
agreement.
Post-Merger Resale Restrictions. In addition to the restrictions imposed
under Section 3 of this Agreement, the provisions of Rule 144 will limit
Shareholder's public resales of the Restricted Securities for a period of at
least one year (or in some cases two years) after the Merger, and thereafter if
and for so long as Stockholder is an affiliate of Concur. Stockholder
acknowledges that Concur may give stop transfer instructions to its transfer
agent, and have legends placed on certificates evidencing the Restricted
Securities, as deemed appropriate by Concur to reflect the applicable
restrictions on transfer.
Escrow. Stockholder agrees to the Escrow Agreement, to having a portion
of the Restricted Securities placed in escrow as provided therein and to the
appointment of Gary Durbin, Robert Reid and Jon Blankmeyer as such Stockholder's
Representatives thereunder.
Representations and Warranties. Stockholder will have good, valid and
marketable title to the Shares at the Effective Date, free and clear of all
liens, claims and encumbrances, and agrees to indemnify Concur, its officers,
directors and stockholders if Stockholder does not have such title. Stockholder
has no knowledge that any representation or warranty of the Company in Article 3
of the Plan is false or, by failing to disclose a material fact, is misleading.
This consent is executed by Stockholder as of the date below.
STOCKHOLDER
/s/ William A. Champion, Jr.
----------------------------------------
William Champion
Date: 5/29/99
----------------------------------
70
documents describing its business, management and other matters, its financial
statements and other documents) and have had the opportunity to obtain such
additional information (including the opportunity to ask questions of, and
receive answers from, the Company and Concur) that Stockholder or the Purchaser
Representative, if any, considers pertinent in connection with executing this
Consent.
Purpose. Stockholder will acquire the Restricted Securities for
Stockholder's own account only and not with a view to, or for resale in
connection with, any unlawful "distribution" thereof within the meaning of the
Securities Act of 1933.
Changes. Stockholder covenants (a) to vote the Shares (and any other of
capital stock of the Company that Stockholder may hereafter acquire) against
approval of any proposal made in opposition to or in competition with
consummation of the Merger and against any other proposal for any action by the
Company that would be in conflict, or inconsistent with, the Merger or the Plan
and (b) not to revoke this Consent.
No Transfer Before Merger. In addition to the restrictions on transfer
under the securities laws, Stockholder agrees not to transfer, pledge or
otherwise dispose of or encumber the Shares, or to make any offer or agreement
relating to any Shares, at any time prior to the Merger (unless and until the
Plan is terminated before then in accordance with its terms) and, if Stockholder
has entered into a Company Affiliate Agreement, only in compliance with that
agreement.
Post-Merger Resale Restrictions. In addition to the restrictions imposed
under Section 3 of this Agreement, the provisions of Rule 144 will limit
Shareholder's public resales of the Restricted Securities for a period of at
least one year (or in some cases two years) after the Merger, and thereafter if
and for so long as Stockholder is an affiliate of Concur. Stockholder
acknowledges that Concur may give stop transfer instructions to its transfer
agent, and have legends placed on certificates evidencing the Restricted
Securities, as deemed appropriate by Concur to reflect the applicable
restrictions on transfer.
Escrow. Stockholder agrees to the Escrow Agreement, to having a portion
of the Restricted Securities placed in escrow as provided therein and to the
appointment of Gary Durbin, Robert Reid and Jon Blankmeyer as such Stockholder's
Representatives thereunder.
Representations and Warranties. Stockholder will have good, valid and
marketable title to the Shares at the Effective Date, free and clear of all
liens, claims and encumbrances, and agrees to indemnify Concur, its officers,
directors and stockholders if Stockholder does not have such title. Stockholder
has no knowledge that any representation or warranty of the Company in Article 3
of the Plan is false or, by failing to disclose a material fact, is misleading.
This consent is executed by Stockholder as of the date below.
STOCKHOLDER
/s/ P. Chouraki
----------------------------------------
Name: Philippe Chouraki
Date: 5/25/99
----------------------------------
71
documents describing its business, management and other matters, its financial
statements and other documents) and have had the opportunity to obtain such
additional information (including the opportunity to ask questions of, and
receive answers from, the Company and Concur) that Stockholder or the Purchaser
Representative, if any, considers pertinent in connection with executing this
Consent.
Purpose. Stockholder will acquire the Restricted Securities for
Stockholder's own account only and not with a view to, or for resale in
connection with, any unlawful "distribution" thereof within the meaning of the
Securities Act of 1933.
Changes. Stockholder covenants (a) to vote the Shares (and any other of
capital stock of the Company that Stockholder may hereafter acquire) against
approval of any proposal made in opposition to or in competition with
consummation of the Merger and against any other proposal for any action by the
Company that would be in conflict, or inconsistent with, the Merger or the Plan
and (b) not to revoke this Consent.
No Transfer Before Merger. In addition to the restrictions on transfer
under the securities laws, Stockholder agrees not to transfer, pledge or
otherwise dispose of or encumber the Shares, or to make any offer or agreement
relating to any Shares, at any time prior to the Merger (unless and until the
Plan is terminated before then in accordance with its terms) and, if Stockholder
has entered into a Company Affiliate Agreement, only in compliance with that
agreement.
Post-Merger Resale Restrictions. In addition to the restrictions imposed
under Section 3 of this Agreement, the provisions of Rule 144 will limit
Shareholder's public resales of the Restricted Securities for a period of at
least one year (or in some cases two years) after the Merger, and thereafter if
and for so long as Stockholder is an affiliate of Concur. Stockholder
acknowledges that Concur may give stop transfer instructions to its transfer
agent, and have legends placed on certificates evidencing the Restricted
Securities, as deemed appropriate by Concur to reflect the applicable
restrictions on transfer.
Escrow. Stockholder agrees to the Escrow Agreement, to having a portion
of the Restricted Securities placed in escrow as provided therein and to the
appointment of Gary Durbin, Robert Reid and Jon Blankmeyer as such Stockholder's
Representatives thereunder.
Representations and Warranties. Stockholder will have good, valid and
marketable title to the Shares at the Effective Date, free and clear of all
liens, claims and encumbrances, and agrees to indemnify Concur, its officers,
directors and stockholders if Stockholder does not have such title. Stockholder
has no knowledge that any representation or warranty of the Company in Article 3
of the Plan is false or, by failing to disclose a material fact, is misleading.
This consent is executed by Stockholder as of the date below.
STOCKHOLDER
/s/ John Cuellar
----------------------------------------
John Cuellar
Date: 5/30/1999
----------------------------------
72
documents describing its business, management and other matters, its financial
statements and other documents) and have had the opportunity to obtain such
additional information (including the opportunity to ask questions of, and
receive answers from, the Company and Concur) that Stockholder or the Purchaser
Representative, if any, considers pertinent in connection with executing this
Consent.
Purpose. Stockholder will acquire the Restricted Securities for
Stockholder's own account only and not with a view to, or for resale in
connection with, any unlawful "distribution" thereof within the meaning of the
Securities Act of 1933.
Changes. Stockholder covenants (a) to vote the Shares (and any other of
capital stock of the Company that Stockholder may hereafter acquire) against
approval of any proposal made in opposition to or in competition with
consummation of the Merger and against any other proposal for any action by the
Company that would be in conflict, or inconsistent with, the Merger or the Plan
and (b) not to revoke this Consent.
No Transfer Before Merger. In addition to the restrictions on transfer
under the securities laws, Stockholder agrees not to transfer, pledge or
otherwise dispose of or encumber the Shares, or to make any offer or agreement
relating to any Shares, at any time prior to the Merger (unless and until the
Plan is terminated before then in accordance with its terms) and, if Stockholder
has entered into a Company Affiliate Agreement, only in compliance with that
agreement.
Post-Merger Resale Restrictions. In addition to the restrictions imposed
under Section 3 of this Agreement, the provisions of Rule 144 will limit
Shareholder's public resales of the Restricted Securities for a period of at
least one year (or in some cases two years) after the Merger, and thereafter if
and for so long as Stockholder is an affiliate of Concur. Stockholder
acknowledges that Concur may give stop transfer instructions to its transfer
agent, and have legends placed on certificates evidencing the Restricted
Securities, as deemed appropriate by Concur to reflect the applicable
restrictions on transfer.
Escrow. Stockholder agrees to the Escrow Agreement, to having a portion
of the Restricted Securities placed in escrow as provided therein and to the
appointment of Gary Durbin, Robert Reid and Jon Blankmeyer as such Stockholder's
Representatives thereunder.
Representations and Warranties. Stockholder will have good, valid and
marketable title to the Shares at the Effective Date, free and clear of all
liens, claims and encumbrances, and agrees to indemnify Concur, its officers,
directors and stockholders if Stockholder does not have such title. Stockholder
has no knowledge that any representation or warranty of the Company in Article 3
of the Plan is false or, by failing to disclose a material fact, is misleading.
This consent is executed by Stockholder as of the date below.
STOCKHOLDER
Adele H. Deverell Irrevocable Trust
/s/ Michael G. Deverell
----------------------------------------
Name: Michael G. Deverell Trustee
Date: 25 May 99
----------------------------------
73
documents describing its business, management and other matters, its financial
statements and other documents) and have had the opportunity to obtain such
additional information (including the opportunity to ask questions of, and
receive answers from, the Company and Concur) that Stockholder or the Purchaser
Representative, if any, considers pertinent in connection with executing this
Consent.
Purpose. Stockholder will acquire the Restricted Securities for
Stockholder's own account only and not with a view to, or for resale in
connection with, any unlawful "distribution" thereof within the meaning of the
Securities Act of 1933.
Changes. Stockholder covenants (a) to vote the Shares (and any other of
capital stock of the Company that Stockholder may hereafter acquire) against
approval of any proposal made in opposition to or in competition with
consummation of the Merger and against any other proposal for any action by the
Company that would be in conflict, or inconsistent with, the Merger or the Plan
and (b) not to revoke this Consent.
No Transfer Before Merger. In addition to the restrictions on transfer
under the securities laws, Stockholder agrees not to transfer, pledge or
otherwise dispose of or encumber the Shares, or to make any offer or agreement
relating to any Shares, at any time prior to the Merger (unless and until the
Plan is terminated before then in accordance with its terms) and, if Stockholder
has entered into a Company Affiliate Agreement, only in compliance with that
agreement.
Post-Merger Resale Restrictions. In addition to the restrictions imposed
under Section 3 of this Agreement, the provisions of Rule 144 will limit
Shareholder's public resales of the Restricted Securities for a period of at
least one year (or in some cases two years) after the Merger, and thereafter if
and for so long as Stockholder is an affiliate of Concur. Stockholder
acknowledges that Concur may give stop transfer instructions to its transfer
agent, and have legends placed on certificates evidencing the Restricted
Securities, as deemed appropriate by Concur to reflect the applicable
restrictions on transfer.
Escrow. Stockholder agrees to the Escrow Agreement, to having a portion
of the Restricted Securities placed in escrow as provided therein and to the
appointment of Gary Durbin, Robert Reid and Jon Blankmeyer as such Stockholder's
Representatives thereunder.
Representations and Warranties. Stockholder will have good, valid and
marketable title to the Shares at the Effective Date, free and clear of all
liens, claims and encumbrances, and agrees to indemnify Concur, its officers,
directors and stockholders if Stockholder does not have such title. Stockholder
has no knowledge that any representation or warranty of the Company in Article 3
of the Plan is false or, by failing to disclose a material fact, is misleading.
This consent is executed by Stockholder as of the date below.
STOCKHOLDER
Deverell Family Revocable Trust
/s/ Michael Deverell
----------------------------------------
Name: Michael G. Deverell Trustee
Date: 25 May 99
----------------------------------
74
documents describing its business, management and other matters, its financial
statements and other documents) and have had the opportunity to obtain such
additional information (including the opportunity to ask questions of, and
receive answers from, the Company and Concur) that Stockholder or the Purchaser
Representative, if any, considers pertinent in connection with executing this
Consent.
Purpose. Stockholder will acquire the Restricted Securities for
Stockholder's own account only and not with a view to, or for resale in
connection with, any unlawful "distribution" thereof within the meaning of the
Securities Act of 1933.
Changes. Stockholder covenants (a) to vote the Shares (and any other of
capital stock of the Company that Stockholder may hereafter acquire) against
approval of any proposal made in opposition to or in competition with
consummation of the Merger and against any other proposal for any action by the
Company that would be in conflict, or inconsistent with, the Merger or the Plan
and (b) not to revoke this Consent.
No Transfer Before Merger. In addition to the restrictions on transfer
under the securities laws, Stockholder agrees not to transfer, pledge or
otherwise dispose of or encumber the Shares, or to make any offer or agreement
relating to any Shares, at any time prior to the Merger (unless and until the
Plan is terminated before then in accordance with its terms) and, if Stockholder
has entered into a Company Affiliate Agreement, only in compliance with that
agreement.
Post-Merger Resale Restrictions. In addition to the restrictions imposed
under Section 3 of this Agreement, the provisions of Rule 144 will limit
Shareholder's public resales of the Restricted Securities for a period of at
least one year (or in some cases two years) after the Merger, and thereafter if
and for so long as Stockholder is an affiliate of Concur. Stockholder
acknowledges that Concur may give stop transfer instructions to its transfer
agent, and have legends placed on certificates evidencing the Restricted
Securities, as deemed appropriate by Concur to reflect the applicable
restrictions on transfer.
Escrow. Stockholder agrees to the Escrow Agreement, to having a portion
of the Restricted Securities placed in escrow as provided therein and to the
appointment of Gary Durbin, Robert Reid and Jon Blankmeyer as such Stockholder's
Representatives thereunder.
Representations and Warranties. Stockholder will have good, valid and
marketable title to the Shares at the Effective Date, free and clear of all
liens, claims and encumbrances, and agrees to indemnify Concur, its officers,
directors and stockholders if Stockholder does not have such title. Stockholder
has no knowledge that any representation or warranty of the Company in Article 3
of the Plan is false or, by failing to disclose a material fact, is misleading.
This consent is executed by Stockholder as of the date below.
STOCKHOLDER
/s/ Gary Durbin
----------------------------------------
Gary Durbin
Date: May 26, 1999
----------------------------------
75
documents describing its business, management and other matters, its financial
statements and other documents) and have had the opportunity to obtain such
additional information (including the opportunity to ask questions of, and
receive answers from, the Company and Concur) that Stockholder or the Purchaser
Representative, if any, considers pertinent in connection with executing this
Consent.
Purpose. Stockholder will acquire the Restricted Securities for
Stockholder's own account only and not with a view to, or for resale in
connection with, any unlawful "distribution" thereof within the meaning of the
Securities Act of 1933.
Changes. Stockholder covenants (a) to vote the Shares (and any other of
capital stock of the Company that Stockholder may hereafter acquire) against
approval of any proposal made in opposition to or in competition with
consummation of the Merger and against any other proposal for any action by the
Company that would be in conflict, or inconsistent with, the Merger or the Plan
and (b) not to revoke this Consent.
No Transfer Before Merger. In addition to the restrictions on transfer
under the securities laws, Stockholder agrees not to transfer, pledge or
otherwise dispose of or encumber the Shares, or to make any offer or agreement
relating to any Shares, at any time prior to the Merger (unless and until the
Plan is terminated before then in accordance with its terms) and, if Stockholder
has entered into a Company Affiliate Agreement, only in compliance with that
agreement.
Post-Merger Resale Restrictions. In addition to the restrictions imposed
under Section 3 of this Agreement, the provisions of Rule 144 will limit
Shareholder's public resales of the Restricted Securities for a period of at
least one year (or in some cases two years) after the Merger, and thereafter if
and for so long as Stockholder is an affiliate of Concur. Stockholder
acknowledges that Concur may give stop transfer instructions to its transfer
agent, and have legends placed on certificates evidencing the Restricted
Securities, as deemed appropriate by Concur to reflect the applicable
restrictions on transfer.
Escrow. Stockholder agrees to the Escrow Agreement, to having a portion
of the Restricted Securities placed in escrow as provided therein and to the
appointment of Gary Durbin, Robert Reid and Jon Blankmeyer as such Stockholder's
Representatives thereunder.
Representations and Warranties. Stockholder will have good, valid and
marketable title to the Shares at the Effective Date, free and clear of all
liens, claims and encumbrances, and agrees to indemnify Concur, its officers,
directors and stockholders if Stockholder does not have such title. Stockholder
has no knowledge that any representation or warranty of the Company in Article 3
of the Plan is false or, by failing to disclose a material fact, is misleading.
This consent is executed by Stockholder as of the date below.
STOCKHOLDER
/s/ Gary Durbin
----------------------------------------
Name: Gary Durbin, Trustee Gary &
Loretta Durbin Trust
Date: May 26, 1999
----------------------------------
76
documents describing its business, management and other matters, its financial
statements and other documents) and have had the opportunity to obtain such
additional information (including the opportunity to ask questions of, and
receive answers from, the Company and Concur) that Stockholder or the Purchaser
Representative, if any, considers pertinent in connection with executing this
Consent.
Purpose. Stockholder will acquire the Restricted Securities for
Stockholder's own account only and not with a view to, or for resale in
connection with, any unlawful "distribution" thereof within the meaning of the
Securities Act of 1933.
Changes. Stockholder covenants (a) to vote the Shares (and any other of
capital stock of the Company that Stockholder may hereafter acquire) against
approval of any proposal made in opposition to or in competition with
consummation of the Merger and against any other proposal for any action by the
Company that would be in conflict, or inconsistent with, the Merger or the Plan
and (b) not to revoke this Consent.
No Transfer Before Merger. In addition to the restrictions on transfer
under the securities laws, Stockholder agrees not to transfer, pledge or
otherwise dispose of or encumber the Shares, or to make any offer or agreement
relating to any Shares, at any time prior to the Merger (unless and until the
Plan is terminated before then in accordance with its terms) and, if Stockholder
has entered into a Company Affiliate Agreement, only in compliance with that
agreement.
Post-Merger Resale Restrictions. In addition to the restrictions imposed
under Section 3 of this Agreement, the provisions of Rule 144 will limit
Shareholder's public resales of the Restricted Securities for a period of at
least one year (or in some cases two years) after the Merger, and thereafter if
and for so long as Stockholder is an affiliate of Concur. Stockholder
acknowledges that Concur may give stop transfer instructions to its transfer
agent, and have legends placed on certificates evidencing the Restricted
Securities, as deemed appropriate by Concur to reflect the applicable
restrictions on transfer.
Escrow. Stockholder agrees to the Escrow Agreement, to having a portion
of the Restricted Securities placed in escrow as provided therein and to the
appointment of Gary Durbin, Robert Reid and Jon Blankmeyer as such Stockholder's
Representatives thereunder.
Representations and Warranties. Stockholder will have good, valid and
marketable title to the Shares at the Effective Date, free and clear of all
liens, claims and encumbrances, and agrees to indemnify Concur, its officers,
directors and stockholders if Stockholder does not have such title. Stockholder
has no knowledge that any representation or warranty of the Company in Article 3
of the Plan is false or, by failing to disclose a material fact, is misleading.
This consent is executed by Stockholder as of the date below.
STOCKHOLDER
/s/ Nathan Durbin
----------------------------------------
Nathan Durbin
Date: 5/28/99
----------------------------------
77
documents describing its business, management and other matters, its financial
statements and other documents) and have had the opportunity to obtain such
additional information (including the opportunity to ask questions of, and
receive answers from, the Company and Concur) that Stockholder or the Purchaser
Representative, if any, considers pertinent in connection with executing this
Consent.
Purpose. Stockholder will acquire the Restricted Securities for
Stockholder's own account only and not with a view to, or for resale in
connection with, any unlawful "distribution" thereof within the meaning of the
Securities Act of 1933.
Changes. Stockholder covenants (a) to vote the Shares (and any other of
capital stock of the Company that Stockholder may hereafter acquire) against
approval of any proposal made in opposition to or in competition with
consummation of the Merger and against any other proposal for any action by the
Company that would be in conflict, or inconsistent with, the Merger or the Plan
and (b) not to revoke this Consent.
No Transfer Before Merger. In addition to the restrictions on transfer
under the securities laws, Stockholder agrees not to transfer, pledge or
otherwise dispose of or encumber the Shares, or to make any offer or agreement
relating to any Shares, at any time prior to the Merger (unless and until the
Plan is terminated before then in accordance with its terms) and, if Stockholder
has entered into a Company Affiliate Agreement, only in compliance with that
agreement.
Post-Merger Resale Restrictions. In addition to the restrictions imposed
under Section 3 of this Agreement, the provisions of Rule 144 will limit
Shareholder's public resales of the Restricted Securities for a period of at
least one year (or in some cases two years) after the Merger, and thereafter if
and for so long as Stockholder is an affiliate of Concur. Stockholder
acknowledges that Concur may give stop transfer instructions to its transfer
agent, and have legends placed on certificates evidencing the Restricted
Securities, as deemed appropriate by Concur to reflect the applicable
restrictions on transfer.
Escrow. Stockholder agrees to the Escrow Agreement, to having a portion
of the Restricted Securities placed in escrow as provided therein and to the
appointment of Gary Durbin, Robert Reid and Jon Blankmeyer as such Stockholder's
Representatives thereunder.
Representations and Warranties. Stockholder will have good, valid and
marketable title to the Shares at the Effective Date, free and clear of all
liens, claims and encumbrances, and agrees to indemnify Concur, its officers,
directors and stockholders if Stockholder does not have such title. Stockholder
has no knowledge that any representation or warranty of the Company in Article 3
of the Plan is false or, by failing to disclose a material fact, is misleading.
This consent is executed by Stockholder as of the date below.
STOCKHOLDER
/s/ Samantha Durbin
----------------------------------------
Samantha Durbin
Date: 5/26/99
----------------------------------
78
documents describing its business, management and other matters, its financial
statements and other documents) and have had the opportunity to obtain such
additional information (including the opportunity to ask questions of, and
receive answers from, the Company and Concur) that Stockholder or the Purchaser
Representative, if any, considers pertinent in connection with executing this
Consent.
Purpose. Stockholder will acquire the Restricted Securities for
Stockholder's own account only and not with a view to, or for resale in
connection with, any unlawful "distribution" thereof within the meaning of the
Securities Act of 1933.
Changes. Stockholder covenants (a) to vote the Shares (and any other of
capital stock of the Company that Stockholder may hereafter acquire) against
approval of any proposal made in opposition to or in competition with
consummation of the Merger and against any other proposal for any action by the
Company that would be in conflict, or inconsistent with, the Merger or the Plan
and (b) not to revoke this Consent.
No Transfer Before Merger. In addition to the restrictions on transfer
under the securities laws, Stockholder agrees not to transfer, pledge or
otherwise dispose of or encumber the Shares, or to make any offer or agreement
relating to any Shares, at any time prior to the Merger (unless and until the
Plan is terminated before then in accordance with its terms) and, if Stockholder
has entered into a Company Affiliate Agreement, only in compliance with that
agreement.
Post-Merger Resale Restrictions. In addition to the restrictions imposed
under Section 3 of this Agreement, the provisions of Rule 144 will limit
Shareholder's public resales of the Restricted Securities for a period of at
least one year (or in some cases two years) after the Merger, and thereafter if
and for so long as Stockholder is an affiliate of Concur. Stockholder
acknowledges that Concur may give stop transfer instructions to its transfer
agent, and have legends placed on certificates evidencing the Restricted
Securities, as deemed appropriate by Concur to reflect the applicable
restrictions on transfer.
Escrow. Stockholder agrees to the Escrow Agreement, to having a portion
of the Restricted Securities placed in escrow as provided therein and to the
appointment of Gary Durbin, Robert Reid and Jon Blankmeyer as such Stockholder's
Representatives thereunder.
Representations and Warranties. Stockholder will have good, valid and
marketable title to the Shares at the Effective Date, free and clear of all
liens, claims and encumbrances, and agrees to indemnify Concur, its officers,
directors and stockholders if Stockholder does not have such title. Stockholder
has no knowledge that any representation or warranty of the Company in Article 3
of the Plan is false or, by failing to disclose a material fact, is misleading.
This consent is executed by Stockholder as of the date below.
STOCKHOLDER
/s/ Tadish Durbin
----------------------------------------
Tadish Durbin
Date: 5-28-99
----------------------------------
79
documents describing its business, management and other matters, its financial
statements and other documents) and have had the opportunity to obtain such
additional information (including the opportunity to ask questions of, and
receive answers from, the Company and Concur) that Stockholder or the Purchaser
Representative, if any, considers pertinent in connection with executing this
Consent.
Purpose. Stockholder will acquire the Restricted Securities for
Stockholder's own account only and not with a view to, or for resale in
connection with, any unlawful "distribution" thereof within the meaning of the
Securities Act of 1933.
Changes. Stockholder covenants (a) to vote the Shares (and any other of
capital stock of the Company that Stockholder may hereafter acquire) against
approval of any proposal made in opposition to or in competition with
consummation of the Merger and against any other proposal for any action by the
Company that would be in conflict, or inconsistent with, the Merger or the Plan
and (b) not to revoke this Consent.
No Transfer Before Merger. In addition to the restrictions on transfer
under the securities laws, Stockholder agrees not to transfer, pledge or
otherwise dispose of or encumber the Shares, or to make any offer or agreement
relating to any Shares, at any time prior to the Merger (unless and until the
Plan is terminated before then in accordance with its terms) and, if Stockholder
has entered into a Company Affiliate Agreement, only in compliance with that
agreement.
Post-Merger Resale Restrictions. In addition to the restrictions imposed
under Section 3 of this Agreement, the provisions of Rule 144 will limit
Shareholder's public resales of the Restricted Securities for a period of at
least one year (or in some cases two years) after the Merger, and thereafter if
and for so long as Stockholder is an affiliate of Concur. Stockholder
acknowledges that Concur may give stop transfer instructions to its transfer
agent, and have legends placed on certificates evidencing the Restricted
Securities, as deemed appropriate by Concur to reflect the applicable
restrictions on transfer.
Escrow. Stockholder agrees to the Escrow Agreement, to having a portion
of the Restricted Securities placed in escrow as provided therein and to the
appointment of Gary Durbin, Robert Reid and Jon Blankmeyer as such Stockholder's
Representatives thereunder.
Representations and Warranties. Stockholder will have good, valid and
marketable title to the Shares at the Effective Date, free and clear of all
liens, claims and encumbrances, and agrees to indemnify Concur, its officers,
directors and stockholders if Stockholder does not have such title. Stockholder
has no knowledge that any representation or warranty of the Company in Article 3
of the Plan is false or, by failing to disclose a material fact, is misleading.
This consent is executed by Stockholder as of the date below.
STOCKHOLDER
/s/ Patrick Flanigan
----------------------------------------
Patrick Flanigan
Date: 5/28/99
----------------------------------
80
documents describing its business, management and other matters, its financial
statements and other documents) and have had the opportunity to obtain such
additional information (including the opportunity to ask questions of, and
receive answers from, the Company and Concur) that Stockholder or the Purchaser
Representative, if any, considers pertinent in connection with executing this
Consent.
Purpose. Stockholder will acquire the Restricted Securities for
Stockholder's own account only and not with a view to, or for resale in
connection with, any unlawful "distribution" thereof within the meaning of the
Securities Act of 1933.
Changes. Stockholder covenants (a) to vote the Shares (and any other of
capital stock of the Company that Stockholder may hereafter acquire) against
approval of any proposal made in opposition to or in competition with
consummation of the Merger and against any other proposal for any action by the
Company that would be in conflict, or inconsistent with, the Merger or the Plan
and (b) not to revoke this Consent.
No Transfer Before Merger. In addition to the restrictions on transfer
under the securities laws, Stockholder agrees not to transfer, pledge or
otherwise dispose of or encumber the Shares, or to make any offer or agreement
relating to any Shares, at any time prior to the Merger (unless and until the
Plan is terminated before then in accordance with its terms) and, if Stockholder
has entered into a Company Affiliate Agreement, only in compliance with that
agreement.
Post-Merger Resale Restrictions. In addition to the restrictions imposed
under Section 3 of this Agreement, the provisions of Rule 144 will limit
Shareholder's public resales of the Restricted Securities for a period of at
least one year (or in some cases two years) after the Merger, and thereafter if
and for so long as Stockholder is an affiliate of Concur. Stockholder
acknowledges that Concur may give stop transfer instructions to its transfer
agent, and have legends placed on certificates evidencing the Restricted
Securities, as deemed appropriate by Concur to reflect the applicable
restrictions on transfer.
Escrow. Stockholder agrees to the Escrow Agreement, to having a portion
of the Restricted Securities placed in escrow as provided therein and to the
appointment of Gary Durbin, Robert Reid and Jon Blankmeyer as such Stockholder's
Representatives thereunder.
Representations and Warranties. Stockholder will have good, valid and
marketable title to the Shares at the Effective Date, free and clear of all
liens, claims and encumbrances, and agrees to indemnify Concur, its officers,
directors and stockholders if Stockholder does not have such title. Stockholder
has no knowledge that any representation or warranty of the Company in Article 3
of the Plan is false or, by failing to disclose a material fact, is misleading.
This consent is executed by Stockholder as of the date below.
STOCKHOLDER
/s/ Umang Gupta
----------------------------------------
Umang Gupta
Date: May 28, 1999
----------------------------------
81
documents describing its business, management and other matters, its financial
statements and other documents) and have had the opportunity to obtain such
additional information (including the opportunity to ask questions of, and
receive answers from, the Company and Concur) that Stockholder or the Purchaser
Representative, if any, considers pertinent in connection with executing this
Consent.
Purpose. Stockholder will acquire the Restricted Securities for
Stockholder's own account only and not with a view to, or for resale in
connection with, any unlawful "distribution" thereof within the meaning of the
Securities Act of 1933.
Changes. Stockholder covenants (a) to vote the Shares (and any other of
capital stock of the Company that Stockholder may hereafter acquire) against
approval of any proposal made in opposition to or in competition with
consummation of the Merger and against any other proposal for any action by the
Company that would be in conflict, or inconsistent with, the Merger or the Plan
and (b) not to revoke this Consent.
No Transfer Before Merger. In addition to the restrictions on transfer
under the securities laws, Stockholder agrees not to transfer, pledge or
otherwise dispose of or encumber the Shares, or to make any offer or agreement
relating to any Shares, at any time prior to the Merger (unless and until the
Plan is terminated before then in accordance with its terms) and, if Stockholder
has entered into a Company Affiliate Agreement, only in compliance with that
agreement.
Post-Merger Resale Restrictions. In addition to the restrictions imposed
under Section 3 of this Agreement, the provisions of Rule 144 will limit
Shareholder's public resales of the Restricted Securities for a period of at
least one year (or in some cases two years) after the Merger, and thereafter if
and for so long as Stockholder is an affiliate of Concur. Stockholder
acknowledges that Concur may give stop transfer instructions to its transfer
agent, and have legends placed on certificates evidencing the Restricted
Securities, as deemed appropriate by Concur to reflect the applicable
restrictions on transfer.
Escrow. Stockholder agrees to the Escrow Agreement, to having a portion
of the Restricted Securities placed in escrow as provided therein and to the
appointment of Gary Durbin, Robert Reid and Jon Blankmeyer as such Stockholder's
Representatives thereunder.
Representations and Warranties. Stockholder will have good, valid and
marketable title to the Shares at the Effective Date, free and clear of all
liens, claims and encumbrances, and agrees to indemnify Concur, its officers,
directors and stockholders if Stockholder does not have such title. Stockholder
has no knowledge that any representation or warranty of the Company in Article 3
of the Plan is false or, by failing to disclose a material fact, is misleading.
This consent is executed by Stockholder as of the date below.
STOCKHOLDER
Kevin G. Hall Revocable Trust
By: /s/ Kevin G. Hall
----------------------------------
Name:
Date:
----------------------------------
82
documents describing its business, management and other matters, its financial
statements and other documents) and have had the opportunity to obtain such
additional information (including the opportunity to ask questions of, and
receive answers from, the Company and Concur) that Stockholder or the Purchaser
Representative, if any, considers pertinent in connection with executing this
Consent.
Purpose. Stockholder will acquire the Restricted Securities for
Stockholder's own account only and not with a view to, or for resale in
connection with, any unlawful "distribution" thereof within the meaning of the
Securities Act of 1933.
Changes. Stockholder covenants (a) to vote the Shares (and any other of
capital stock of the Company that Stockholder may hereafter acquire) against
approval of any proposal made in opposition to or in competition with
consummation of the Merger and against any other proposal for any action by the
Company that would be in conflict, or inconsistent with, the Merger or the Plan
and (b) not to revoke this Consent.
No Transfer Before Merger. In addition to the restrictions on transfer
under the securities laws, Stockholder agrees not to transfer, pledge or
otherwise dispose of or encumber the Shares, or to make any offer or agreement
relating to any Shares, at any time prior to the Merger (unless and until the
Plan is terminated before then in accordance with its terms) and, if Stockholder
has entered into a Company Affiliate Agreement, only in compliance with that
agreement.
Post-Merger Resale Restrictions. In addition to the restrictions imposed
under Section 3 of this Agreement, the provisions of Rule 144 will limit
Shareholder's public resales of the Restricted Securities for a period of at
least one year (or in some cases two years) after the Merger, and thereafter if
and for so long as Stockholder is an affiliate of Concur. Stockholder
acknowledges that Concur may give stop transfer instructions to its transfer
agent, and have legends placed on certificates evidencing the Restricted
Securities, as deemed appropriate by Concur to reflect the applicable
restrictions on transfer.
Escrow. Stockholder agrees to the Escrow Agreement, to having a portion
of the Restricted Securities placed in escrow as provided therein and to the
appointment of Gary Durbin, Robert Reid and Jon Blankmeyer as such Stockholder's
Representatives thereunder.
Representations and Warranties. Stockholder will have good, valid and
marketable title to the Shares at the Effective Date, free and clear of all
liens, claims and encumbrances, and agrees to indemnify Concur, its officers,
directors and stockholders if Stockholder does not have such title. Stockholder
has no knowledge that any representation or warranty of the Company in Article 3
of the Plan is false or, by failing to disclose a material fact, is misleading.
This consent is executed by Stockholder as of the date below.
STOCKHOLDER
/s/ Dave Hanson
----------------------------------------
Name:
Date: 5/26/99
----------------------------------
83
documents describing its business, management and other matters, its financial
statements and other documents) and have had the opportunity to obtain such
additional information (including the opportunity to ask questions of, and
receive answers from, the Company and Concur) that Stockholder or the Purchaser
Representative, if any, considers pertinent in connection with executing this
Consent.
Purpose. Stockholder will acquire the Restricted Securities for
Stockholder's own account only and not with a view to, or for resale in
connection with, any unlawful "distribution" thereof within the meaning of the
Securities Act of 1933.
Changes. Stockholder covenants (a) to vote the Shares (and any other of
capital stock of the Company that Stockholder may hereafter acquire) against
approval of any proposal made in opposition to or in competition with
consummation of the Merger and against any other proposal for any action by the
Company that would be in conflict, or inconsistent with, the Merger or the Plan
and (b) not to revoke this Consent.
No Transfer Before Merger. In addition to the restrictions on transfer
under the securities laws, Stockholder agrees not to transfer, pledge or
otherwise dispose of or encumber the Shares, or to make any offer or agreement
relating to any Shares, at any time prior to the Merger (unless and until the
Plan is terminated before then in accordance with its terms) and, if Stockholder
has entered into a Company Affiliate Agreement, only in compliance with that
agreement.
Post-Merger Resale Restrictions. In addition to the restrictions imposed
under Section 3 of this Agreement, the provisions of Rule 144 will limit
Shareholder's public resales of the Restricted Securities for a period of at
least one year (or in some cases two years) after the Merger, and thereafter if
and for so long as Stockholder is an affiliate of Concur. Stockholder
acknowledges that Concur may give stop transfer instructions to its transfer
agent, and have legends placed on certificates evidencing the Restricted
Securities, as deemed appropriate by Concur to reflect the applicable
restrictions on transfer.
Escrow. Stockholder agrees to the Escrow Agreement, to having a portion
of the Restricted Securities placed in escrow as provided therein and to the
appointment of Gary Durbin, Robert Reid and Jon Blankmeyer as such Stockholder's
Representatives thereunder.
Representations and Warranties. Stockholder will have good, valid and
marketable title to the Shares at the Effective Date, free and clear of all
liens, claims and encumbrances, and agrees to indemnify Concur, its officers,
directors and stockholders if Stockholder does not have such title. Stockholder
has no knowledge that any representation or warranty of the Company in Article 3
of the Plan is false or, by failing to disclose a material fact, is misleading.
This consent is executed by Stockholder as of the date below.
INFORMATION TECHNOLOGY VENTURES, L.P., STOCKHOLDER
a California limited partnership
----------------------------------
By: ITV MANAGEMENT, LLC Name:
a California limited liability
company
Title: General Partner Date: 5/25/99
By: /s/ Sam H. Lee ----------------------------
---------------------------------
Sam H. Lee
Title: Principal Member
84
documents describing its business, management and other matters, its financial
statements and other documents) and have had the opportunity to obtain such
additional information (including the opportunity to ask questions of, and
receive answers from, the Company and Concur) that Stockholder or the Purchaser
Representative, if any, considers pertinent in connection with executing this
Consent.
Purpose. Stockholder will acquire the Restricted Securities for
Stockholder's own account only and not with a view to, or for resale in
connection with, any unlawful "distribution" thereof within the meaning of the
Securities Act of 1933.
Changes. Stockholder covenants (a) to vote the Shares (and any other of
capital stock of the Company that Stockholder may hereafter acquire) against
approval of any proposal made in opposition to or in competition with
consummation of the Merger and against any other proposal for any action by the
Company that would be in conflict, or inconsistent with, the Merger or the Plan
and (b) not to revoke this Consent.
No Transfer Before Merger. In addition to the restrictions on transfer
under the securities laws, Stockholder agrees not to transfer, pledge or
otherwise dispose of or encumber the Shares, or to make any offer or agreement
relating to any Shares, at any time prior to the Merger (unless and until the
Plan is terminated before then in accordance with its terms) and, if Stockholder
has entered into a Company Affiliate Agreement, only in compliance with that
agreement.
Post-Merger Resale Restrictions. In addition to the restrictions imposed
under Section 3 of this Agreement, the provisions of Rule 144 will limit
Shareholder's public resales of the Restricted Securities for a period of at
least one year (or in some cases two years) after the Merger, and thereafter if
and for so long as Stockholder is an affiliate of Concur. Stockholder
acknowledges that Concur may give stop transfer instructions to its transfer
agent, and have legends placed on certificates evidencing the Restricted
Securities, as deemed appropriate by Concur to reflect the applicable
restrictions on transfer.
Escrow. Stockholder agrees to the Escrow Agreement, to having a portion
of the Restricted Securities placed in escrow as provided therein and to the
appointment of Gary Durbin, Robert Reid and Jon Blankmeyer as such Stockholder's
Representatives thereunder.
Representations and Warranties. Stockholder will have good, valid and
marketable title to the Shares at the Effective Date, free and clear of all
liens, claims and encumbrances, and agrees to indemnify Concur, its officers,
directors and stockholders if Stockholder does not have such title. Stockholder
has no knowledge that any representation or warranty of the Company in Article 3
of the Plan is false or, by failing to disclose a material fact, is misleading.
This consent is executed by Stockholder as of the date below.
ITV AFFILIATES FUND, L.P., STOCKHOLDER
a California limited partnership
----------------------------------
By: ITV MANAGEMENT, LLC Name:
a California limited liability
company
Title: General Partner Date: 5/25/99
By: /s/ Sam H. Lee ----------------------------
---------------------------------
Sam H. Lee
Title: Principal Member
85
documents describing its business, management and other matters, its financial
statements and other documents) and have had the opportunity to obtain such
additional information (including the opportunity to ask questions of, and
receive answers from, the Company and Concur) that Stockholder or the Purchaser
Representative, if any, considers pertinent in connection with executing this
Consent.
Purpose. Stockholder will acquire the Restricted Securities for
Stockholder's own account only and not with a view to, or for resale in
connection with, any unlawful "distribution" thereof within the meaning of the
Securities Act of 1933.
Changes. Stockholder covenants (a) to vote the Shares (and any other of
capital stock of the Company that Stockholder may hereafter acquire) against
approval of any proposal made in opposition to or in competition with
consummation of the Merger and against any other proposal for any action by the
Company that would be in conflict, or inconsistent with, the Merger or the Plan
and (b) not to revoke this Consent.
No Transfer Before Merger. In addition to the restrictions on transfer
under the securities laws, Stockholder agrees not to transfer, pledge or
otherwise dispose of or encumber the Shares, or to make any offer or agreement
relating to any Shares, at any time prior to the Merger (unless and until the
Plan is terminated before then in accordance with its terms) and, if Stockholder
has entered into a Company Affiliate Agreement, only in compliance with that
agreement.
Post-Merger Resale Restrictions. In addition to the restrictions imposed
under Section 3 of this Agreement, the provisions of Rule 144 will limit
Shareholder's public resales of the Restricted Securities for a period of at
least one year (or in some cases two years) after the Merger, and thereafter if
and for so long as Stockholder is an affiliate of Concur. Stockholder
acknowledges that Concur may give stop transfer instructions to its transfer
agent, and have legends placed on certificates evidencing the Restricted
Securities, as deemed appropriate by Concur to reflect the applicable
restrictions on transfer.
Escrow. Stockholder agrees to the Escrow Agreement, to having a portion
of the Restricted Securities placed in escrow as provided therein and to the
appointment of Gary Durbin, Robert Reid and Jon Blankmeyer as such Stockholder's
Representatives thereunder.
Representations and Warranties. Stockholder will have good, valid and
marketable title to the Shares at the Effective Date, free and clear of all
liens, claims and encumbrances, and agrees to indemnify Concur, its officers,
directors and stockholders if Stockholder does not have such title. Stockholder
has no knowledge that any representation or warranty of the Company in Article 3
of the Plan is false or, by failing to disclose a material fact, is misleading.
This consent is executed by Stockholder as of the date below.
STOCKHOLDER
/s/ Eric W. Kiebler
----------------------------------------
Eric Kiebler
Date: May 30, 1999
----------------------------------
86
documents describing its business, management and other matters, its financial
statements and other documents) and have had the opportunity to obtain such
additional information (including the opportunity to ask questions of, and
receive answers from, the Company and Concur) that Stockholder or the Purchaser
Representative, if any, considers pertinent in connection with executing this
Consent.
Purpose. Stockholder will acquire the Restricted Securities for
Stockholder's own account only and not with a view to, or for resale in
connection with, any unlawful "distribution" thereof within the meaning of the
Securities Act of 1933.
Changes. Stockholder covenants (a) to vote the Shares (and any other of
capital stock of the Company that Stockholder may hereafter acquire) against
approval of any proposal made in opposition to or in competition with
consummation of the Merger and against any other proposal for any action by the
Company that would be in conflict, or inconsistent with, the Merger or the Plan
and (b) not to revoke this Consent.
No Transfer Before Merger. In addition to the restrictions on transfer
under the securities laws, Stockholder agrees not to transfer, pledge or
otherwise dispose of or encumber the Shares, or to make any offer or agreement
relating to any Shares, at any time prior to the Merger (unless and until the
Plan is terminated before then in accordance with its terms) and, if Stockholder
has entered into a Company Affiliate Agreement, only in compliance with that
agreement.
Post-Merger Resale Restrictions. In addition to the restrictions imposed
under Section 3 of this Agreement, the provisions of Rule 144 will limit
Shareholder's public resales of the Restricted Securities for a period of at
least one year (or in some cases two years) after the Merger, and thereafter if
and for so long as Stockholder is an affiliate of Concur. Stockholder
acknowledges that Concur may give stop transfer instructions to its transfer
agent, and have legends placed on certificates evidencing the Restricted
Securities, as deemed appropriate by Concur to reflect the applicable
restrictions on transfer.
Escrow. Stockholder agrees to the Escrow Agreement, to having a portion
of the Restricted Securities placed in escrow as provided therein and to the
appointment of Gary Durbin, Robert Reid and Jon Blankmeyer as such Stockholder's
Representatives thereunder.
Representations and Warranties. Stockholder will have good, valid and
marketable title to the Shares at the Effective Date, free and clear of all
liens, claims and encumbrances, and agrees to indemnify Concur, its officers,
directors and stockholders if Stockholder does not have such title. Stockholder
has no knowledge that any representation or warranty of the Company in Article 3
of the Plan is false or, by failing to disclose a material fact, is misleading.
This consent is executed by Stockholder as of the date below.
STOCKHOLDER
/s/ Susan Macleod
----------------------------------------
Susan Macleod
Date: 5/29/99
----------------------------------
87
documents describing its business, management and other matters, its financial
statements and other documents) and have had the opportunity to obtain such
additional information (including the opportunity to ask questions of, and
receive answers from, the Company and Concur) that Stockholder or the Purchaser
Representative, if any, considers pertinent in connection with executing this
Consent.
Purpose. Stockholder will acquire the Restricted Securities for
Stockholder's own account only and not with a view to, or for resale in
connection with, any unlawful "distribution" thereof within the meaning of the
Securities Act of 1933.
Changes. Stockholder covenants (a) to vote the Shares (and any other of
capital stock of the Company that Stockholder may hereafter acquire) against
approval of any proposal made in opposition to or in competition with
consummation of the Merger and against any other proposal for any action by the
Company that would be in conflict, or inconsistent with, the Merger or the Plan
and (b) not to revoke this Consent.
No Transfer Before Merger. In addition to the restrictions on transfer
under the securities laws, Stockholder agrees not to transfer, pledge or
otherwise dispose of or encumber the Shares, or to make any offer or agreement
relating to any Shares, at any time prior to the Merger (unless and until the
Plan is terminated before then in accordance with its terms) and, if Stockholder
has entered into a Company Affiliate Agreement, only in compliance with that
agreement.
Post-Merger Resale Restrictions. In addition to the restrictions imposed
under Section 3 of this Agreement, the provisions of Rule 144 will limit
Shareholder's public resales of the Restricted Securities for a period of at
least one year (or in some cases two years) after the Merger, and thereafter if
and for so long as Stockholder is an affiliate of Concur. Stockholder
acknowledges that Concur may give stop transfer instructions to its transfer
agent, and have legends placed on certificates evidencing the Restricted
Securities, as deemed appropriate by Concur to reflect the applicable
restrictions on transfer.
Escrow. Stockholder agrees to the Escrow Agreement, to having a portion
of the Restricted Securities placed in escrow as provided therein and to the
appointment of Gary Durbin, Robert Reid and Jon Blankmeyer as such Stockholder's
Representatives thereunder.
Representations and Warranties. Stockholder will have good, valid and
marketable title to the Shares at the Effective Date, free and clear of all
liens, claims and encumbrances, and agrees to indemnify Concur, its officers,
directors and stockholders if Stockholder does not have such title. Stockholder
has no knowledge that any representation or warranty of the Company in Article 3
of the Plan is false or, by failing to disclose a material fact, is misleading.
This consent is executed by Stockholder as of the date below.
STOCKHOLDER
/s/ Nancy H. McCune
----------------------------------------
Nancy McCune
Date: 5/29/99
----------------------------------
88
documents describing its business, management and other matters, its financial
statements and other documents) and have had the opportunity to obtain such
additional information (including the opportunity to ask questions of, and
receive answers from, the Company and Concur) that Stockholder or the Purchaser
Representative, if any, considers pertinent in connection with executing this
Consent.
Purpose. Stockholder will acquire the Restricted Securities for
Stockholder's own account only and not with a view to, or for resale in
connection with, any unlawful "distribution" thereof within the meaning of the
Securities Act of 1933.
Changes. Stockholder covenants (a) to vote the Shares (and any other of
capital stock of the Company that Stockholder may hereafter acquire) against
approval of any proposal made in opposition to or in competition with
consummation of the Merger and against any other proposal for any action by the
Company that would be in conflict, or inconsistent with, the Merger or the Plan
and (b) not to revoke this Consent.
No Transfer Before Merger. In addition to the restrictions on transfer
under the securities laws, Stockholder agrees not to transfer, pledge or
otherwise dispose of or encumber the Shares, or to make any offer or agreement
relating to any Shares, at any time prior to the Merger (unless and until the
Plan is terminated before then in accordance with its terms) and, if Stockholder
has entered into a Company Affiliate Agreement, only in compliance with that
agreement.
Post-Merger Resale Restrictions. In addition to the restrictions imposed
under Section 3 of this Agreement, the provisions of Rule 144 will limit
Shareholder's public resales of the Restricted Securities for a period of at
least one year (or in some cases two years) after the Merger, and thereafter if
and for so long as Stockholder is an affiliate of Concur. Stockholder
acknowledges that Concur may give stop transfer instructions to its transfer
agent, and have legends placed on certificates evidencing the Restricted
Securities, as deemed appropriate by Concur to reflect the applicable
restrictions on transfer.
Escrow. Stockholder agrees to the Escrow Agreement, to having a portion
of the Restricted Securities placed in escrow as provided therein and to the
appointment of Gary Durbin, Robert Reid and Jon Blankmeyer as such Stockholder's
Representatives thereunder.
Representations and Warranties. Stockholder will have good, valid and
marketable title to the Shares at the Effective Date, free and clear of all
liens, claims and encumbrances, and agrees to indemnify Concur, its officers,
directors and stockholders if Stockholder does not have such title. Stockholder
has no knowledge that any representation or warranty of the Company in Article 3
of the Plan is false or, by failing to disclose a material fact, is misleading.
This consent is executed by Stockholder as of the date below.
STOCKHOLDER
/s/ Deepak Natarajan
----------------------------------------
Deepak Natarajan
Date: 5/29/99
----------------------------------
89
documents describing its business, management and other matters, its financial
statements and other documents) and have had the opportunity to obtain such
additional information (including the opportunity to ask questions of, and
receive answers from, the Company and Concur) that Stockholder or the Purchaser
Representative, if any, considers pertinent in connection with executing this
Consent.
Purpose. Stockholder will acquire the Restricted Securities for
Stockholder's own account only and not with a view to, or for resale in
connection with, any unlawful "distribution" thereof within the meaning of the
Securities Act of 1933.
Changes. Stockholder covenants (a) to vote the Shares (and any other of
capital stock of the Company that Stockholder may hereafter acquire) against
approval of any proposal made in opposition to or in competition with
consummation of the Merger and against any other proposal for any action by the
Company that would be in conflict, or inconsistent with, the Merger or the Plan
and (b) not to revoke this Consent.
No Transfer Before Merger. In addition to the restrictions on transfer
under the securities laws, Stockholder agrees not to transfer, pledge or
otherwise dispose of or encumber the Shares, or to make any offer or agreement
relating to any Shares, at any time prior to the Merger (unless and until the
Plan is terminated before then in accordance with its terms) and, if Stockholder
has entered into a Company Affiliate Agreement, only in compliance with that
agreement.
Post-Merger Resale Restrictions. In addition to the restrictions imposed
under Section 3 of this Agreement, the provisions of Rule 144 will limit
Shareholder's public resales of the Restricted Securities for a period of at
least one year (or in some cases two years) after the Merger, and thereafter if
and for so long as Stockholder is an affiliate of Concur. Stockholder
acknowledges that Concur may give stop transfer instructions to its transfer
agent, and have legends placed on certificates evidencing the Restricted
Securities, as deemed appropriate by Concur to reflect the applicable
restrictions on transfer.
Escrow. Stockholder agrees to the Escrow Agreement, to having a portion
of the Restricted Securities placed in escrow as provided therein and to the
appointment of Gary Durbin, Robert Reid and Jon Blankmeyer as such Stockholder's
Representatives thereunder.
Representations and Warranties. Stockholder will have good, valid and
marketable title to the Shares at the Effective Date, free and clear of all
liens, claims and encumbrances, and agrees to indemnify Concur, its officers,
directors and stockholders if Stockholder does not have such title. Stockholder
has no knowledge that any representation or warranty of the Company in Article 3
of the Plan is false or, by failing to disclose a material fact, is misleading.
This consent is executed by Stockholder as of the date below.
STOCKHOLDER
NORWEST VENTURE PARTNERS VII, L.
By: ITASCA Partners VII, LLP
/s/ Kevin G. Hall
----------------------------------------
Name:
Date:
----------------------------------
90
documents describing its business, management and other matters, its financial
statements and other documents) and have had the opportunity to obtain such
additional information (including the opportunity to ask questions of, and
receive answers from, the Company and Concur) that Stockholder or the Purchaser
Representative, if any, considers pertinent in connection with executing this
Consent.
Purpose. Stockholder will acquire the Restricted Securities for
Stockholder's own account only and not with a view to, or for resale in
connection with, any unlawful "distribution" thereof within the meaning of the
Securities Act of 1933.
Changes. Stockholder covenants (a) to vote the Shares (and any other of
capital stock of the Company that Stockholder may hereafter acquire) against
approval of any proposal made in opposition to or in competition with
consummation of the Merger and against any other proposal for any action by the
Company that would be in conflict, or inconsistent with, the Merger or the Plan
and (b) not to revoke this Consent.
No Transfer Before Merger. In addition to the restrictions on transfer
under the securities laws, Stockholder agrees not to transfer, pledge or
otherwise dispose of or encumber the Shares, or to make any offer or agreement
relating to any Shares, at any time prior to the Merger (unless and until the
Plan is terminated before then in accordance with its terms) and, if Stockholder
has entered into a Company Affiliate Agreement, only in compliance with that
agreement.
Post-Merger Resale Restrictions. In addition to the restrictions imposed
under Section 3 of this Agreement, the provisions of Rule 144 will limit
Shareholder's public resales of the Restricted Securities for a period of at
least one year (or in some cases two years) after the Merger, and thereafter if
and for so long as Stockholder is an affiliate of Concur. Stockholder
acknowledges that Concur may give stop transfer instructions to its transfer
agent, and have legends placed on certificates evidencing the Restricted
Securities, as deemed appropriate by Concur to reflect the applicable
restrictions on transfer.
Escrow. Stockholder agrees to the Escrow Agreement, to having a portion
of the Restricted Securities placed in escrow as provided therein and to the
appointment of Gary Durbin, Robert Reid and Jon Blankmeyer as such Stockholder's
Representatives thereunder.
Representations and Warranties. Stockholder will have good, valid and
marketable title to the Shares at the Effective Date, free and clear of all
liens, claims and encumbrances, and agrees to indemnify Concur, its officers,
directors and stockholders if Stockholder does not have such title. Stockholder
has no knowledge that any representation or warranty of the Company in Article 3
of the Plan is false or, by failing to disclose a material fact, is misleading.
This consent is executed by Stockholder as of the date below.
STOCKHOLDER
/s/ Carrie Pedraza
----------------------------------------
Carrie Pedraza
Date: 5/29/99
----------------------------------
91
documents describing its business, management and other matters, its financial
statements and other documents) and have had the opportunity to obtain such
additional information (including the opportunity to ask questions of, and
receive answers from, the Company and Concur) that Stockholder or the Purchaser
Representative, if any, considers pertinent in connection with executing this
Consent.
Purpose. Stockholder will acquire the Restricted Securities for
Stockholder's own account only and not with a view to, or for resale in
connection with, any unlawful "distribution" thereof within the meaning of the
Securities Act of 1933.
Changes. Stockholder covenants (a) to vote the Shares (and any other of
capital stock of the Company that Stockholder may hereafter acquire) against
approval of any proposal made in opposition to or in competition with
consummation of the Merger and against any other proposal for any action by the
Company that would be in conflict, or inconsistent with, the Merger or the Plan
and (b) not to revoke this Consent.
No Transfer Before Merger. In addition to the restrictions on transfer
under the securities laws, Stockholder agrees not to transfer, pledge or
otherwise dispose of or encumber the Shares, or to make any offer or agreement
relating to any Shares, at any time prior to the Merger (unless and until the
Plan is terminated before then in accordance with its terms) and, if Stockholder
has entered into a Company Affiliate Agreement, only in compliance with that
agreement.
Post-Merger Resale Restrictions. In addition to the restrictions imposed
under Section 3 of this Agreement, the provisions of Rule 144 will limit
Shareholder's public resales of the Restricted Securities for a period of at
least one year (or in some cases two years) after the Merger, and thereafter if
and for so long as Stockholder is an affiliate of Concur. Stockholder
acknowledges that Concur may give stop transfer instructions to its transfer
agent, and have legends placed on certificates evidencing the Restricted
Securities, as deemed appropriate by Concur to reflect the applicable
restrictions on transfer.
Escrow. Stockholder agrees to the Escrow Agreement, to having a portion
of the Restricted Securities placed in escrow as provided therein and to the
appointment of Gary Durbin, Robert Reid and Jon Blankmeyer as such Stockholder's
Representatives thereunder.
Representations and Warranties. Stockholder will have good, valid and
marketable title to the Shares at the Effective Date, free and clear of all
liens, claims and encumbrances, and agrees to indemnify Concur, its officers,
directors and stockholders if Stockholder does not have such title. Stockholder
has no knowledge that any representation or warranty of the Company in Article 3
of the Plan is false or, by failing to disclose a material fact, is misleading.
This consent is executed by Stockholder as of the date below.
STOCKHOLDER
/s/ Michael C. Phillips
----------------------------------------
Name: Michael C. Phillips
Date: 5/26/99
----------------------------------
92
documents describing its business, management and other matters, its financial
statements and other documents) and have had the opportunity to obtain such
additional information (including the opportunity to ask questions of, and
receive answers from, the Company and Concur) that Stockholder or the Purchaser
Representative, if any, considers pertinent in connection with executing this
Consent.
Purpose. Stockholder will acquire the Restricted Securities for
Stockholder's own account only and not with a view to, or for resale in
connection with, any unlawful "distribution" thereof within the meaning of the
Securities Act of 1933.
Changes. Stockholder covenants (a) to vote the Shares (and any other of
capital stock of the Company that Stockholder may hereafter acquire) against
approval of any proposal made in opposition to or in competition with
consummation of the Merger and against any other proposal for any action by the
Company that would be in conflict, or inconsistent with, the Merger or the Plan
and (b) not to revoke this Consent.
No Transfer Before Merger. In addition to the restrictions on transfer
under the securities laws, Stockholder agrees not to transfer, pledge or
otherwise dispose of or encumber the Shares, or to make any offer or agreement
relating to any Shares, at any time prior to the Merger (unless and until the
Plan is terminated before then in accordance with its terms) and, if Stockholder
has entered into a Company Affiliate Agreement, only in compliance with that
agreement.
Post-Merger Resale Restrictions. In addition to the restrictions imposed
under Section 3 of this Agreement, the provisions of Rule 144 will limit
Shareholder's public resales of the Restricted Securities for a period of at
least one year (or in some cases two years) after the Merger, and thereafter if
and for so long as Stockholder is an affiliate of Concur. Stockholder
acknowledges that Concur may give stop transfer instructions to its transfer
agent, and have legends placed on certificates evidencing the Restricted
Securities, as deemed appropriate by Concur to reflect the applicable
restrictions on transfer.
Escrow. Stockholder agrees to the Escrow Agreement, to having a portion
of the Restricted Securities placed in escrow as provided therein and to the
appointment of Gary Durbin, Robert Reid and Jon Blankmeyer as such Stockholder's
Representatives thereunder.
Representations and Warranties. Stockholder will have good, valid and
marketable title to the Shares at the Effective Date, free and clear of all
liens, claims and encumbrances, and agrees to indemnify Concur, its officers,
directors and stockholders if Stockholder does not have such title. Stockholder
has no knowledge that any representation or warranty of the Company in Article 3
of the Plan is false or, by failing to disclose a material fact, is misleading.
This consent is executed by Stockholder as of the date below.
PLATINUM VENTURE PARTNERS II, L.P.
/s/ Bryan Kennedy
----------------------------------------
By: Bryan Kennedy
----------------------------------
Its: Partner
----------------------------------
Date: 5-24-99
----------------------------------
93
documents describing its business, management and other matters, its financial
statements and other documents) and have had the opportunity to obtain such
additional information (including the opportunity to ask questions of, and
receive answers from, the Company and Concur) that Stockholder or the Purchaser
Representative, if any, considers pertinent in connection with executing this
Consent.
Purpose. Stockholder will acquire the Restricted Securities for
Stockholder's own account only and not with a view to, or for resale in
connection with, any unlawful "distribution" thereof within the meaning of the
Securities Act of 1933.
Changes. Stockholder covenants (a) to vote the Shares (and any other of
capital stock of the Company that Stockholder may hereafter acquire) against
approval of any proposal made in opposition to or in competition with
consummation of the Merger and against any other proposal for any action by the
Company that would be in conflict, or inconsistent with, the Merger or the Plan
and (b) not to revoke this Consent.
No Transfer Before Merger. In addition to the restrictions on transfer
under the securities laws, Stockholder agrees not to transfer, pledge or
otherwise dispose of or encumber the Shares, or to make any offer or agreement
relating to any Shares, at any time prior to the Merger (unless and until the
Plan is terminated before then in accordance with its terms) and, if Stockholder
has entered into a Company Affiliate Agreement, only in compliance with that
agreement.
Post-Merger Resale Restrictions. In addition to the restrictions imposed
under Section 3 of this Agreement, the provisions of Rule 144 will limit
Shareholder's public resales of the Restricted Securities for a period of at
least one year (or in some cases two years) after the Merger, and thereafter if
and for so long as Stockholder is an affiliate of Concur. Stockholder
acknowledges that Concur may give stop transfer instructions to its transfer
agent, and have legends placed on certificates evidencing the Restricted
Securities, as deemed appropriate by Concur to reflect the applicable
restrictions on transfer.
Escrow. Stockholder agrees to the Escrow Agreement, to having a portion
of the Restricted Securities placed in escrow as provided therein and to the
appointment of Gary Durbin, Robert Reid and Jon Blankmeyer as such Stockholder's
Representatives thereunder.
Representations and Warranties. Stockholder will have good, valid and
marketable title to the Shares at the Effective Date, free and clear of all
liens, claims and encumbrances, and agrees to indemnify Concur, its officers,
directors and stockholders if Stockholder does not have such title. Stockholder
has no knowledge that any representation or warranty of the Company in Article 3
of the Plan is false or, by failing to disclose a material fact, is misleading.
This consent is executed by Stockholder as of the date below.
STOCKHOLDER
/s/ Mark Potenzone
----------------------------------------
Mark Potenzone
Date: 5/30/99
----------------------------------
94
documents describing its business, management and other matters, its financial
statements and other documents) and have had the opportunity to obtain such
additional information (including the opportunity to ask questions of, and
receive answers from, the Company and Concur) that Stockholder or the Purchaser
Representative, if any, considers pertinent in connection with executing this
Consent.
Purpose. Stockholder will acquire the Restricted Securities for
Stockholder's own account only and not with a view to, or for resale in
connection with, any unlawful "distribution" thereof within the meaning of the
Securities Act of 1933.
Changes. Stockholder covenants (a) to vote the Shares (and any other of
capital stock of the Company that Stockholder may hereafter acquire) against
approval of any proposal made in opposition to or in competition with
consummation of the Merger and against any other proposal for any action by the
Company that would be in conflict, or inconsistent with, the Merger or the Plan
and (b) not to revoke this Consent.
No Transfer Before Merger. In addition to the restrictions on transfer
under the securities laws, Stockholder agrees not to transfer, pledge or
otherwise dispose of or encumber the Shares, or to make any offer or agreement
relating to any Shares, at any time prior to the Merger (unless and until the
Plan is terminated before then in accordance with its terms) and, if Stockholder
has entered into a Company Affiliate Agreement, only in compliance with that
agreement.
Post-Merger Resale Restrictions. In addition to the restrictions imposed
under Section 3 of this Agreement, the provisions of Rule 144 will limit
Shareholder's public resales of the Restricted Securities for a period of at
least one year (or in some cases two years) after the Merger, and thereafter if
and for so long as Stockholder is an affiliate of Concur. Stockholder
acknowledges that Concur may give stop transfer instructions to its transfer
agent, and have legends placed on certificates evidencing the Restricted
Securities, as deemed appropriate by Concur to reflect the applicable
restrictions on transfer.
Escrow. Stockholder agrees to the Escrow Agreement, to having a portion
of the Restricted Securities placed in escrow as provided therein and to the
appointment of Gary Durbin, Robert Reid and Jon Blankmeyer as such Stockholder's
Representatives thereunder.
Representations and Warranties. Stockholder will have good, valid and
marketable title to the Shares at the Effective Date, free and clear of all
liens, claims and encumbrances, and agrees to indemnify Concur, its officers,
directors and stockholders if Stockholder does not have such title. Stockholder
has no knowledge that any representation or warranty of the Company in Article 3
of the Plan is false or, by failing to disclose a material fact, is misleading.
This consent is executed by Stockholder as of the date below.
STOCKHOLDER
/s/ Jeff Saenger
----------------------------------------
Name:
Date: 5/26/99
----------------------------------
95
documents describing its business, management and other matters, its financial
statements and other documents) and have had the opportunity to obtain such
additional information (including the opportunity to ask questions of, and
receive answers from, the Company and Concur) that Stockholder or the Purchaser
Representative, if any, considers pertinent in connection with executing this
Consent.
Purpose. Stockholder will acquire the Restricted Securities for
Stockholder's own account only and not with a view to, or for resale in
connection with, any unlawful "distribution" thereof within the meaning of the
Securities Act of 1933.
Changes. Stockholder covenants (a) to vote the Shares (and any other of
capital stock of the Company that Stockholder may hereafter acquire) against
approval of any proposal made in opposition to or in competition with
consummation of the Merger and against any other proposal for any action by the
Company that would be in conflict, or inconsistent with, the Merger or the Plan
and (b) not to revoke this Consent.
No Transfer Before Merger. In addition to the restrictions on transfer
under the securities laws, Stockholder agrees not to transfer, pledge or
otherwise dispose of or encumber the Shares, or to make any offer or agreement
relating to any Shares, at any time prior to the Merger (unless and until the
Plan is terminated before then in accordance with its terms) and, if Stockholder
has entered into a Company Affiliate Agreement, only in compliance with that
agreement.
Post-Merger Resale Restrictions. In addition to the restrictions imposed
under Section 3 of this Agreement, the provisions of Rule 144 will limit
Shareholder's public resales of the Restricted Securities for a period of at
least one year (or in some cases two years) after the Merger, and thereafter if
and for so long as Stockholder is an affiliate of Concur. Stockholder
acknowledges that Concur may give stop transfer instructions to its transfer
agent, and have legends placed on certificates evidencing the Restricted
Securities, as deemed appropriate by Concur to reflect the applicable
restrictions on transfer.
Escrow. Stockholder agrees to the Escrow Agreement, to having a portion
of the Restricted Securities placed in escrow as provided therein and to the
appointment of Gary Durbin, Robert Reid and Jon Blankmeyer as such Stockholder's
Representatives thereunder.
Representations and Warranties. Stockholder will have good, valid and
marketable title to the Shares at the Effective Date, free and clear of all
liens, claims and encumbrances, and agrees to indemnify Concur, its officers,
directors and stockholders if Stockholder does not have such title. Stockholder
has no knowledge that any representation or warranty of the Company in Article 3
of the Plan is false or, by failing to disclose a material fact, is misleading.
This consent is executed by Stockholder as of the date below.
STOCKHOLDER
/s/ Jerome E. Stanton
----------------------------------------
Name:
Date: May 25, 1999
----------------------------------
96
documents describing its business, management and other matters, its financial
statements and other documents) and have had the opportunity to obtain such
additional information (including the opportunity to ask questions of, and
receive answers from, the Company and Concur) that Stockholder or the Purchaser
Representative, if any, considers pertinent in connection with executing this
Consent.
Purpose. Stockholder will acquire the Restricted Securities for
Stockholder's own account only and not with a view to, or for resale in
connection with, any unlawful "distribution" thereof within the meaning of the
Securities Act of 1933.
Changes. Stockholder covenants (a) to vote the Shares (and any other of
capital stock of the Company that Stockholder may hereafter acquire) against
approval of any proposal made in opposition to or in competition with
consummation of the Merger and against any other proposal for any action by the
Company that would be in conflict, or inconsistent with, the Merger or the Plan
and (b) not to revoke this Consent.
No Transfer Before Merger. In addition to the restrictions on transfer
under the securities laws, Stockholder agrees not to transfer, pledge or
otherwise dispose of or encumber the Shares, or to make any offer or agreement
relating to any Shares, at any time prior to the Merger (unless and until the
Plan is terminated before then in accordance with its terms) and, if Stockholder
has entered into a Company Affiliate Agreement, only in compliance with that
agreement.
Post-Merger Resale Restrictions. In addition to the restrictions imposed
under Section 3 of this Agreement, the provisions of Rule 144 will limit
Shareholder's public resales of the Restricted Securities for a period of at
least one year (or in some cases two years) after the Merger, and thereafter if
and for so long as Stockholder is an affiliate of Concur. Stockholder
acknowledges that Concur may give stop transfer instructions to its transfer
agent, and have legends placed on certificates evidencing the Restricted
Securities, as deemed appropriate by Concur to reflect the applicable
restrictions on transfer.
Escrow. Stockholder agrees to the Escrow Agreement, to having a portion
of the Restricted Securities placed in escrow as provided therein and to the
appointment of Gary Durbin, Robert Reid and Jon Blankmeyer as such Stockholder's
Representatives thereunder.
Representations and Warranties. Stockholder will have good, valid and
marketable title to the Shares at the Effective Date, free and clear of all
liens, claims and encumbrances, and agrees to indemnify Concur, its officers,
directors and stockholders if Stockholder does not have such title. Stockholder
has no knowledge that any representation or warranty of the Company in Article 3
of the Plan is false or, by failing to disclose a material fact, is misleading.
This consent is executed by Stockholder as of the date below.
STOCKHOLDER
/s/ Linda Villers
----------------------------------------
Linda Villers
Date: 5/28/1999
----------------------------------
97
documents describing its business, management and other matters, its financial
statements and other documents) and have had the opportunity to obtain such
additional information (including the opportunity to ask questions of, and
receive answers from, the Company and Concur) that Stockholder or the Purchaser
Representative, if any, considers pertinent in connection with executing this
Consent.
Purpose. Stockholder will acquire the Restricted Securities for
Stockholder's own account only and not with a view to, or for resale in
connection with, any unlawful "distribution" thereof within the meaning of the
Securities Act of 1933.
Changes. Stockholder covenants (a) to vote the Shares (and any other of
capital stock of the Company that Stockholder may hereafter acquire) against
approval of any proposal made in opposition to or in competition with
consummation of the Merger and against any other proposal for any action by the
Company that would be in conflict, or inconsistent with, the Merger or the Plan
and (b) not to revoke this Consent.
No Transfer Before Merger. In addition to the restrictions on transfer
under the securities laws, Stockholder agrees not to transfer, pledge or
otherwise dispose of or encumber the Shares, or to make any offer or agreement
relating to any Shares, at any time prior to the Merger (unless and until the
Plan is terminated before then in accordance with its terms) and, if Stockholder
has entered into a Company Affiliate Agreement, only in compliance with that
agreement.
Post-Merger Resale Restrictions. In addition to the restrictions imposed
under Section 3 of this Agreement, the provisions of Rule 144 will limit
Shareholder's public resales of the Restricted Securities for a period of at
least one year (or in some cases two years) after the Merger, and thereafter if
and for so long as Stockholder is an affiliate of Concur. Stockholder
acknowledges that Concur may give stop transfer instructions to its transfer
agent, and have legends placed on certificates evidencing the Restricted
Securities, as deemed appropriate by Concur to reflect the applicable
restrictions on transfer.
Escrow. Stockholder agrees to the Escrow Agreement, to having a portion
of the Restricted Securities placed in escrow as provided therein and to the
appointment of Gary Durbin, Robert Reid and Jon Blankmeyer as such Stockholder's
Representatives thereunder.
Representations and Warranties. Stockholder will have good, valid and
marketable title to the Shares at the Effective Date, free and clear of all
liens, claims and encumbrances, and agrees to indemnify Concur, its officers,
directors and stockholders if Stockholder does not have such title. Stockholder
has no knowledge that any representation or warranty of the Company in Article 3
of the Plan is false or, by failing to disclose a material fact, is misleading.
This consent is executed by Stockholder as of the date below.
STOCKHOLDER
/s/ Deanna Wargowski
----------------------------------------
Deanna Wargowski
Date: 5/29/99
----------------------------------
98
documents describing its business, management and other matters, its financial
statements and other documents) and have had the opportunity to obtain such
additional information (including the opportunity to ask questions of, and
receive answers from, the Company and Concur) that Stockholder or the Purchaser
Representative, if any, considers pertinent in connection with executing this
Consent.
Purpose. Stockholder will acquire the Restricted Securities for
Stockholder's own account only and not with a view to, or for resale in
connection with, any unlawful "distribution" thereof within the meaning of the
Securities Act of 1933.
Changes. Stockholder covenants (a) to vote the Shares (and any other of
capital stock of the Company that Stockholder may hereafter acquire) against
approval of any proposal made in opposition to or in competition with
consummation of the Merger and against any other proposal for any action by the
Company that would be in conflict, or inconsistent with, the Merger or the Plan
and (b) not to revoke this Consent.
No Transfer Before Merger. In addition to the restrictions on transfer
under the securities laws, Stockholder agrees not to transfer, pledge or
otherwise dispose of or encumber the Shares, or to make any offer or agreement
relating to any Shares, at any time prior to the Merger (unless and until the
Plan is terminated before then in accordance with its terms) and, if Stockholder
has entered into a Company Affiliate Agreement, only in compliance with that
agreement.
Post-Merger Resale Restrictions. In addition to the restrictions imposed
under Section 3 of this Agreement, the provisions of Rule 144 will limit
Shareholder's public resales of the Restricted Securities for a period of at
least one year (or in some cases two years) after the Merger, and thereafter if
and for so long as Stockholder is an affiliate of Concur. Stockholder
acknowledges that Concur may give stop transfer instructions to its transfer
agent, and have legends placed on certificates evidencing the Restricted
Securities, as deemed appropriate by Concur to reflect the applicable
restrictions on transfer.
Escrow. Stockholder agrees to the Escrow Agreement, to having a portion
of the Restricted Securities placed in escrow as provided therein and to the
appointment of Gary Durbin, Robert Reid and Jon Blankmeyer as such Stockholder's
Representatives thereunder.
Representations and Warranties. Stockholder will have good, valid and
marketable title to the Shares at the Effective Date, free and clear of all
liens, claims and encumbrances, and agrees to indemnify Concur, its officers,
directors and stockholders if Stockholder does not have such title. Stockholder
has no knowledge that any representation or warranty of the Company in Article 3
of the Plan is false or, by failing to disclose a material fact, is misleading.
This consent is executed by Stockholder as of the date below.
STOCKHOLDER
/s/ Murray Warner
----------------------------------------
Murray Warner
Date:
----------------------------------
99
documents describing its business, management and other matters, its financial
statements and other documents) and have had the opportunity to obtain such
additional information (including the opportunity to ask questions of, and
receive answers from, the Company and Concur) that Stockholder or the Purchaser
Representative, if any, considers pertinent in connection with executing this
Consent.
Purpose. Stockholder will acquire the Restricted Securities for
Stockholder's own account only and not with a view to, or for resale in
connection with, any unlawful "distribution" thereof within the meaning of the
Securities Act of 1933.
Changes. Stockholder covenants (a) to vote the Shares (and any other of
capital stock of the Company that Stockholder may hereafter acquire) against
approval of any proposal made in opposition to or in competition with
consummation of the Merger and against any other proposal for any action by the
Company that would be in conflict, or inconsistent with, the Merger or the Plan
and (b) not to revoke this Consent.
No Transfer Before Merger. In addition to the restrictions on transfer
under the securities laws, Stockholder agrees not to transfer, pledge or
otherwise dispose of or encumber the Shares, or to make any offer or agreement
relating to any Shares, at any time prior to the Merger (unless and until the
Plan is terminated before then in accordance with its terms) and, if Stockholder
has entered into a Company Affiliate Agreement, only in compliance with that
agreement.
Post-Merger Resale Restrictions. In addition to the restrictions imposed
under Section 3 of this Agreement, the provisions of Rule 144 will limit
Shareholder's public resales of the Restricted Securities for a period of at
least one year (or in some cases two years) after the Merger, and thereafter if
and for so long as Stockholder is an affiliate of Concur. Stockholder
acknowledges that Concur may give stop transfer instructions to its transfer
agent, and have legends placed on certificates evidencing the Restricted
Securities, as deemed appropriate by Concur to reflect the applicable
restrictions on transfer.
Escrow. Stockholder agrees to the Escrow Agreement, to having a portion
of the Restricted Securities placed in escrow as provided therein and to the
appointment of Gary Durbin, Robert Reid and Jon Blankmeyer as such Stockholder's
Representatives thereunder.
Representations and Warranties. Stockholder will have good, valid and
marketable title to the Shares at the Effective Date, free and clear of all
liens, claims and encumbrances, and agrees to indemnify Concur, its officers,
directors and stockholders if Stockholder does not have such title. Stockholder
has no knowledge that any representation or warranty of the Company in Article 3
of the Plan is false or, by failing to disclose a material fact, is misleading.
This consent is executed by Stockholder as of the date below.
STOCKHOLDER
/s/ Patrick Welsh
----------------------------------------
Patrick Welsh
Date: 5-30-1999
----------------------------------
100
documents describing its business, management and other matters, its financial
statements and other documents) and have had the opportunity to obtain such
additional information (including the opportunity to ask questions of, and
receive answers from, the Company and Concur) that Stockholder or the Purchaser
Representative, if any, considers pertinent in connection with executing this
Consent.
Purpose. Stockholder will acquire the Restricted Securities for
Stockholder's own account only and not with a view to, or for resale in
connection with, any unlawful "distribution" thereof within the meaning of the
Securities Act of 1933.
Changes. Stockholder covenants (a) to vote the Shares (and any other of
capital stock of the Company that Stockholder may hereafter acquire) against
approval of any proposal made in opposition to or in competition with
consummation of the Merger and against any other proposal for any action by the
Company that would be in conflict, or inconsistent with, the Merger or the Plan
and (b) not to revoke this Consent.
No Transfer Before Merger. In addition to the restrictions on transfer
under the securities laws, Stockholder agrees not to transfer, pledge or
otherwise dispose of or encumber the Shares, or to make any offer or agreement
relating to any Shares, at any time prior to the Merger (unless and until the
Plan is terminated before then in accordance with its terms) and, if Stockholder
has entered into a Company Affiliate Agreement, only in compliance with that
agreement.
Post-Merger Resale Restrictions. In addition to the restrictions imposed
under Section 3 of this Agreement, the provisions of Rule 144 will limit
Shareholder's public resales of the Restricted Securities for a period of at
least one year (or in some cases two years) after the Merger, and thereafter if
and for so long as Stockholder is an affiliate of Concur. Stockholder
acknowledges that Concur may give stop transfer instructions to its transfer
agent, and have legends placed on certificates evidencing the Restricted
Securities, as deemed appropriate by Concur to reflect the applicable
restrictions on transfer.
Escrow. Stockholder agrees to the Escrow Agreement, to having a portion
of the Restricted Securities placed in escrow as provided therein and to the
appointment of Gary Durbin, Robert Reid and Jon Blankmeyer as such Stockholder's
Representatives thereunder.
Representations and Warranties. Stockholder will have good, valid and
marketable title to the Shares at the Effective Date, free and clear of all
liens, claims and encumbrances, and agrees to indemnify Concur, its officers,
directors and stockholders if Stockholder does not have such title. Stockholder
has no knowledge that any representation or warranty of the Company in Article 3
of the Plan is false or, by failing to disclose a material fact, is misleading.
This consent is executed by Stockholder as of the date below.
STOCKHOLDER
/s/ Jan L. Wesemann
----------------------------------------
Name:
Date: 5-25-99
----------------------------------
101
EXHIBIT F
COMPANY AFFILIATE AGREEMENT
This Affiliate Agreement (this "AGREEMENT") dated as of May 26, 1999
(the "EFFECTIVE DATE") is among Seeker Software, Inc. a Delaware corporation
(the "COMPANY"), Concur Technologies, Inc., a Delaware corporation ("CONCUR"),
and the stockholder of the Company who executes this Agreement below
("STOCKHOLDER").
R E C I T A L S
A. This Agreement is entered into pursuant to that certain Agreement and
Plan of Reorganization dated as of the date hereof (the "PLAN") among Concur,
the Company, ConStar Acquisition Corp., a Delaware corporation that is a
wholly-owned subsidiary of Concur ("SUB") and the stockholders of the Company.
The Plan provides for the merger of Sub with and into the Company (the "MERGER")
pursuant to the terms and conditions of the Plan. Capitalized terms used herein
and not defined herein shall have the same meanings that such terms have in the
Plan.
B. The Plan provides that, upon the Effective Time of the Merger, the
shares of Company Common Stock and Company Preferred Stock, and the Company
Warrants, that are issued and outstanding immediately prior to the Effective
Time of the Merger will be converted into shares of Concur Common Stock, and the
Company Options to purchase shares of Company Common Stock that are outstanding
immediately prior to the Effective Time will be converted into Concur Options to
purchase shares of Concur Common Stock, all as more particularly set forth in
the Plan.
C. Stockholder understands that, because the Merger is intended by the
parties to qualify for "pooling-of-interests" accounting treatment and assuming
that Stockholder might be deemed to be an "affiliate" of the Company within the
meaning of the Securities Act of 1933, as amended (the "1933 ACT") (although the
parties acknowledge that Stockholder's execution of this Agreement is not an
admission that Stockholder is such an affiliate), the shares of the Company's
capital stock and Company Warrants, if any, that Stockholder owns and any shares
of the Company's capital stock which Stockholder may hereafter acquire hereafter
(and any shares of Concur Common Stock issued to Stockholder in the Merger or
upon the exercise of Concur Options issued to Stockholder in the Merger), may be
disposed of only in conformity with the limitations in this Agreement.
Stockholder has been informed that the treatment of the Merger as a
"pooling-of-interests" for accounting and financial reporting purposes is
dependent in part upon the accuracy of certain of the representations and
warranties of Stockholder in this Agreement and upon Stockholder's compliance
with certain agreements set forth herein.
1. RELIANCE UPON REPRESENTATIONS, WARRANTIES AND COVENANTS. Stockholder
understands that the representations and warranties and covenants of Stockholder
set forth herein will be relied upon by the Company, Concur and their respective
legal counsel and accounting firms, and the other stockholders of the Company.
2. REPRESENTATIONS, WARRANTIES AND COVENANTS OF STOCKHOLDER. Stockholder
hereby represents, warrants and covenants as follows:
102
(a) Authority; Affiliate Status. Stockholder has full power and
authority to enter into, execute, deliver and perform Stockholder's obligations
under this Agreement, to make the representations, warranties and covenants
herein contained and to perform Stockholder's obligations under this Agreement.
(b) Company Securities Owned. Attachment "1" hereto sets forth
all shares of the Company's capital stock and any other securities of the
Company owned by Stockholder as of the Effective Date (whether owned directly or
indirectly, beneficially or of record), including all securities of the Company
as to which Stockholder has sole or shared voting or investment power, and all
rights, options and warrants to acquire shares of capital stock or other
securities of the Company (such shares of the Company's capital stock, other
securities of the Company and rights, options and warrants to acquire shares of
the Company's capital stock and other securities of the Company are hereinafter
collectively referred to as the "COMPANY SECURITIES"). Except as otherwise
disclosed in the Company Disclosure Letter, on the Effective Date, all the
Company Securities owned by Stockholder are, and at all times until and through
the Expiration Date (as hereinafter defined) will be, free and clear of any
rights of first refusal, co-sale rights, security interests, claims, options,
charges or other encumbrances.
(c) New Company Securities. As used herein, the term "NEW COMPANY
SECURITIES" means, collectively, any and all shares of the Company's capital
stock, other securities of the Company and rights, options and warrants to
acquire shares of the Company's capital stock and other securities of the
Company that Stockholder may purchase or otherwise acquire any interest in
(whether directly or indirectly, of record or beneficially) on and after the
Effective Date of this Agreement and prior to the Expiration Date (as defined
below). All New Company Securities will be subject to the terms of this
Agreement to the same extent and in the same manner as if they were Company
Securities. Except as otherwise disclosed in the Company Disclosure Letter, at
all times until and through the Expiration Date, all the New Company Securities
will be free and clear of any rights of first refusal, co-sale rights, security
interests, claims, options, charges or any other encumbrances. As used herein,
the term "EXPIRATION DATE" means the earliest to occur of (i) the effectiveness
of the Merger or (ii) such time as the Plan may be terminated in accordance with
its terms.
(d) Transfer Restrictions on Company Securities and New Company
Securities. Stockholder agrees with Concur not to sell, transfer, encumber or
dispose of, or to offer or agree to sell, transfer, encumber or dispose of (i)
any of the Company Securities or (ii) any New Company Securities until the
Expiration Date.
(e) No Solicitation or Encouragement. Stockholder agrees with
Concur not to, directly or indirectly, solicit, facilitate or encourage any
offer from any person or entity concerning the possible disposition of all or
any portion of the Company's business, assets or capital stock by merger, sale
of stock, sale of assets or other means in contravention of the Plan.
(f) Waiver. Stockholder hereby waives, effective as of the
Effective Time, any registration rights under any agreement with the Company or
its security holders in effect immediately prior to the Effective Time (this
waiver does not apply to the Shelf Registration Rights Agreement with Concur or
to any other registration rights agreement with Concur).
-2-
103
(g) Definition of Merger Securities. As used herein, the term
"MERGER SECURITIES" means, collectively, all shares of Concur Common Stock that
are or may be issued by Concur in connection with the Merger or the transactions
contemplated by the Plan, or, pursuant to the Plan, to any former holder of any
Company options, warrants or rights to acquire shares of Company capital stock,
directly or indirectly, and any securities that may be paid as a dividend or
otherwise distributed thereon or with respect thereto or issued or delivered in
exchange or substitution therefor or upon conversion thereof.
(h) Pooling Lock-Up. Notwithstanding any other provision of this
Agreement to the contrary, Stockholder will not sell, transfer, exchange, pledge
or otherwise dispose of, or in any other way reduce Stockholder's risk of
ownership or investment in, or make any offer or agreement relating to any of
the foregoing with respect to any Company Securities or New Company Securities
or any rights, options or warrants to purchase Company Securities or New Company
Securities, or any Merger Securities or other securities of Concur (and
Stockholder has not taken any such action) during the period (the "LOCK-UP
PERIOD") beginning 30 days immediately preceding the Effective Time and ending
such time after the Effective Time as Concur has publicly released the combined
financial results of Concur and the Company for a period of at least 30 days of
post-Merger combined operations of Concur and the Company. Concur agrees to
publish such financial results in a manner consistent with its past practices.
(h) Intent. Stockholder is not aware of or participating in any
plan or intention on the part of Concur, directly or indirectly (through one or
more related parties) to reacquire any Concur Common Stock issued in the Merger.
For these purposes, "RELATED PARTIES" include corporations which are members of
the same affiliated group as defined in Section 1504 of the Code (determined
without regard to Section 1504(b) of the Code), or two corporations if the first
corporation purchases the stock of the second corporation in a transaction which
would be treated as a distribution of the stock of the first corporation under
Section 304(a)(2) of the Code (determined without regard to Treas. Reg. Section
1.1502-80(b)). In addition, a corporation will be treated as related to another
corporation if such relationship exists immediately before or immediately after
the acquisition of the stock involved. Moreover, a corporation, other than the
Company or a person related to the Company, will be treated as related to Concur
if the relationship is created in connection with the Merger. For purposes of
this representation, it should be noted that Concur may from time to time
repurchase some of its issued and outstanding Common Stock in repurchase
transactions unrelated to the Merger.
3. RESTRICTIONS ON RESALE. Stockholder understands that, in addition to
the restrictions imposed under Section 3 of this Agreement, the provisions of
Rule 144 will limit Stockholder's public resale of Merger Securities for a
period of at least one year (or in some cases two years) after the Effective
Time of the Merger, and thereafter if and for so long as Stockholder is an
affiliate of Concur. Stockholder acknowledges that Concur may give stop transfer
instructions to its transfer agent, and have legends placed on certificates
evidencing the Merger Securities, as deemed appropriate by Concur to reflect the
applicable restrictions on transfer. Concur covenants to remove the legends
promptly as and when the restrictions no longer apply.
4. TERMINATION. This Agreement shall be terminated and shall be of no
further force and effect upon the termination of the Plan pursuant to its terms.
-3-
104
5. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, and all of which
together shall constitute one instrument.
6. BINDING AGREEMENT. This Agreement will inure to the benefit of and be
binding upon and enforceable against the parties and their successors and
assigns, including administrators, executors, representatives, heirs, legatees
and devisees of Stockholder and any pledgee holding Merger Securities as
collateral.
7. WAIVER. No waiver by any party hereto of any condition or of any
breach of any provision of this Agreement shall be effective unless in writing
and signed by each party hereto.
8. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of Delaware without regard to
conflict of laws principles.
9. ATTORNEYS' FEES. Should suit be brought to enforce or interpret any
part of this Agreement, the prevailing party will be entitled to recover,
regardless of whether the suit proceeds to judgment, the costs and expenses
(including, without limitation, reasonable attorneys' fees and expenses)
incurred by such party in connection with the litigation.
-4-
105
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first set forth above.
CONCUR TECHNOLOGIES, INC. SEEKER SOFTWARE, INC.
By: /s/ STERLING WILSON By: /s/ ROBERT K. REID
---------------------------- ----------------------------
Title: CFO & EVP OF OPERATIONS Title: PRESIDENT & CEO
------------------------- -------------------------
STOCKHOLDER
By:____________________________
[SIGNATURE PAGE TO COMPANY AFFILIATE AGREEMENT]
-5-
106
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first set forth above.
CONCUR TECHNOLOGIES, INC. SEEKER SOFTWARE, INC.
By: By:
----------------------------- ---------------------------------
Title: Title:
----------------------------- ---------------------------------
STOCKHOLDER
By: /s/ Steven Baloff
-------------------------------------
Advanced Technology Ventures IV, L.P.
[SIGNATURE PAGE TO COMPANY AFFILIATE AGREEMENT]
-5-
107
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first set forth above.
CONCUR TECHNOLOGIES, INC. SEEKER SOFTWARE, INC.
By: By:
----------------------------- ---------------------------------
Title: Title:
----------------------------- ---------------------------------
STOCKHOLDER
By: /s/ Steven Baloff
-------------------------------------
Director
[SIGNATURE PAGE TO COMPANY AFFILIATE AGREEMENT]
-5-
108
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first set forth above.
CONCUR TECHNOLOGIES, INC. SEEKER SOFTWARE, INC.
By: By:
----------------------------- ---------------------------------
Title: Title:
----------------------------- ---------------------------------
STOCKHOLDER
By: /s/ Jon T. Blankmeyer
-------------------------------------
Director
[SIGNATURE PAGE TO COMPANY AFFILIATE AGREEMENT]
-5-
109
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first set forth above.
CONCUR TECHNOLOGIES, INC. SEEKER SOFTWARE, INC.
By: By:
----------------------------- ---------------------------------
Title: Title:
----------------------------- ---------------------------------
STOCKHOLDER
By: /s/ Jeffrey Brody
-------------------------------------
Brentwood Associates VII, L.P.
[SIGNATURE PAGE TO COMPANY AFFILIATE AGREEMENT]
110
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first set forth above.
CONCUR TECHNOLOGIES, INC. SEEKER SOFTWARE, INC.
By: By:
----------------------------- ---------------------------------
Title: Title:
----------------------------- ---------------------------------
STOCKHOLDER
By: /s/ Jeffrey Brody
-------------------------------------
Director
[SIGNATURE PAGE TO COMPANY AFFILIATE AGREEMENT]
-5-
111
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first set forth above.
CONCUR TECHNOLOGIES, INC. SEEKER SOFTWARE, INC.
By: By:
----------------------------- ---------------------------------
Title: Title:
----------------------------- ---------------------------------
STOCKHOLDER
By: /s/ Gary Durbin
-------------------------------------
Director
[SIGNATURE PAGE TO COMPANY AFFILIATE AGREEMENT]
-5-
112
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first set forth above.
CONCUR TECHNOLOGIES, INC. SEEKER SOFTWARE, INC.
By: By:
----------------------------- ---------------------------------
Title: Title:
----------------------------- ---------------------------------
STOCKHOLDER
By: /s/ Richard Giordanella
-------------------------------------
Director
[SIGNATURE PAGE TO COMPANY AFFILIATE AGREEMENT]
-5-
113
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first set forth above.
CONCUR TECHNOLOGIES, INC. SEEKER SOFTWARE, INC.
By: By:
----------------------------- ---------------------------------
Title: Title:
----------------------------- ---------------------------------
STOCKHOLDER
By: /s/ David J. Hanson
-------------------------------------
[SIGNATURE PAGE TO COMPANY AFFILIATE AGREEMENT]
-5-
114
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first set forth above.
CONCUR TECHNOLOGIES, INC. SEEKER SOFTWARE, INC.
By: By:
----------------------------- ---------------------------------
Title: Title:
----------------------------- ---------------------------------
STOCKHOLDER
By: /s/ Virginia M. Turezyn
--------------------------------------------
Information Technology Ventures, L.P.,
a California limited partnership
By: ITV Management, LLC,
a California limited liability company
Title: General Partner
By: Virginia M. Turezyn
Principal Member
[SIGNATURE PAGE TO COMPANY AFFILIATE AGREEMENT]
-5-
115
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first set forth above.
CONCUR TECHNOLOGIES, INC. SEEKER SOFTWARE, INC.
By: By:
----------------------------- ---------------------------------
Title: Title:
----------------------------- ---------------------------------
STOCKHOLDER
By: /s/ Virginia M. Turezyn
--------------------------------------------
ITV Affiliates Fund, L.P.,
a California limited partnership
By: ITV Management, LLC,
a California limited liability company
Title: General Partner
By: Virginia M. Turezyn
Principal Member
[SIGNATURE PAGE TO COMPANY AFFILIATE AGREEMENT]
-5-
116
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first set forth above.
CONCUR TECHNOLOGIES, INC. SEEKER SOFTWARE, INC.
By: By:
----------------------------- ---------------------------------
Title: Title:
----------------------------- ---------------------------------
STOCKHOLDER
By: /s/ Kevin Hall
-------------------------------------
Norwest Venture Partners VII, L.P.
[SIGNATURE PAGE TO COMPANY AFFILIATE AGREEMENT]
-5-
117
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first set forth above.
CONCUR TECHNOLOGIES, INC. SEEKER SOFTWARE, INC.
By: By:
----------------------------- ---------------------------------
Title: Title:
----------------------------- ---------------------------------
STOCKHOLDER
By: /s/ Robert K. Reid
-------------------------------------
Director
[SIGNATURE PAGE TO COMPANY AFFILIATE AGREEMENT]
-5-
118
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first set forth above.
CONCUR TECHNOLOGIES, INC. SEEKER SOFTWARE, INC.
By: By:
----------------------------- ---------------------------------
Title: Title:
----------------------------- ---------------------------------
STOCKHOLDER
By: /s/ Virginia M. Turezyn
-------------------------------------
Virginia M. Turezyn
Director
[SIGNATURE PAGE TO COMPANY AFFILIATE AGREEMENT]
-5-
119
ATTACHMENT "1"
COMPANY SECURITIES
Steven Baloff
Type of Company Securities Number of Shares
- -------------------------- ----------------
Company Common Stock 0
Company Series A Preferred Stock 0
Company Series B Preferred Stock 0
Company Series C Preferred Stock 0
Company Warrants 0
Company Options for Common Stock 0
120
ATTACHMENT "1"
COMPANY SECURITIES
Advanced Technology Ventures IV L.P.
Type of Company Securities Number of Shares
- -------------------------- ----------------
Company Common Stock 0
Company Series A Preferred Stock 1,633,333
Company Series B Preferred Stock 911,857
Company Series C Preferred Stock 876,939
Company Warrants 87,020
Company Options for Common Stock 0
121
ATTACHMENT "1"
COMPANY SECURITIES
Jon T. Blankmeyer
Type of Company Securities Number of Shares
- -------------------------- ----------------
Company Common Stock 0
Company Series A Preferred Stock 133,333
Company Series B Preferred Stock 166,667
Company Series C Preferred Stock 123,798
Company Warrants 50,000
Company Options for Common Stock 82,000
122
ATTACHMENT "1"
COMPANY SECURITIES
Brentwood Affiliates Fund L.P.
Type of Company Securities Number of Shares
- -------------------------- ----------------
Company Common Stock 0
Company Series A Preferred Stock 0
Company Series B Preferred Stock 0
Company Series C Preferred Stock 32,062
Company Warrants 1,711
Company Options for Common Stock 0
123
ATTACHMENT "1"
COMPANY SECURITIES
Brentwood Associates VIII, L.P.
Type of Company Securities Number of Shares
- -------------------------- ----------------
Company Common Stock 0
Company Series A Preferred Stock 0
Company Series B Preferred Stock 2,345,778
Company Series C Preferred Stock 769,481
Company Warrants 41,072
Company Options for Common Stock 0
124
ATTACHMENT "1"
COMPANY SECURITIES
Jeff Brody
Type of Company Securities Number of Shares
- -------------------------- ----------------
Company Common Stock 0
Company Series A Preferred Stock 0
Company Series B Preferred Stock 0
Company Series C Preferred Stock 0
Company Warrants 0
Company Options for Common Stock 0
125
ATTACHMENT "1"
COMPANY SECURITIES
Gary Durbin
Type of Company Securities Number of Shares
- -------------------------- ----------------
Company Common Stock 0
Company Series A Preferred Stock 0
Company Series B Preferred Stock 0
Company Series C Preferred Stock 0
Company Warrants 853
Company Options for Common Stock 397,222
126
ATTACHMENT "1"
COMPANY SECURITIES
Richard Giordanella
Type of Company Securities Number of Shares
- -------------------------- ----------------
Company Common Stock 0
Company Series A Preferred Stock 0
Company Series B Preferred Stock 0
Company Series C Preferred Stock 0
Company Warrants 0
Company Options for Common Stock 56,800
127
ATTACHMENT "1"
COMPANY SECURITIES
David J. Hanson
Type of Company Securities Number of Shares
- -------------------------- ----------------
Company Common Stock 219,000
Company Series A Preferred Stock 0
Company Series B Preferred Stock 0
Company Series C Preferred Stock 0
Company Warrants 131
Company Options for Common Stock 24,400
128
ATTACHMENT "1"
COMPANY SECURITIES
Information Technology Ventures, L.P.
Type of Company Securities Number of Shares
- -------------------------- ----------------
Company Common Stock 0
Company Series A Preferred Stock 1,590,909
Company Series B Preferred Stock 888,159
Company Series C Preferred Stock 854,157
Company Warrants 84,761
Company Options for Common Stock 0
129
ATTACHMENT "1"
COMPANY SECURITIES
ITV Affiliates Fund, L.P.
Type of Company Securities Number of Shares
- -------------------------- ----------------
Company Common Stock 0
Company Series A Preferred Stock 42,424
Company Series B Preferred Stock 23,697
Company Series C Preferred Stock 22,782
Company Warrants 2,259
Company Options for Common Stock 0
130
ATTACHMENT "1"
COMPANY SECURITIES
Norwest Venture Partners VII, L.P.
Type of Company Securities Number of Shares
- -------------------------- ----------------
Company Common Stock 0
Company Series A Preferred Stock 0
Company Series B Preferred Stock 0
Company Series C Preferred Stock 2,789,855
Company Warrants 0
Company Options for Common Stock 0
131
ATTACHMENT "1"
COMPANY SECURITIES
Robert Reid
Type of Company Securities Number of Shares
- -------------------------- ----------------
Company Common Stock 0
Company Series A Preferred Stock 0
Company Series B Preferred Stock 0
Company Series C Preferred Stock 0
Company Warrants 0
Company Options for Common Stock 1,750,000
132
ATTACHMENT "1"
COMPANY SECURITIES
Virgina Turezyn
Type of Company Securities Number of Shares
- -------------------------- ----------------
Company Common Stock 0
Company Series A Preferred Stock 0
Company Series B Preferred Stock 0
Company Series C Preferred Stock 0
Company Warrants 0
Company Options for Common Stock 0