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EXHIBIT 4.03
ESCROW AGREEMENT
This Escrow Agreement (this "AGREEMENT") is made and entered into
as of May 26, 1999, by and among Concur Technologies, Inc., a Delaware
corporation ("CONCUR"), Gary Durbin, Robert K. Reid and Jon Blankmeyer as
representatives of the Company Stockholders and the Optionholders (collectively,
the "REPRESENTATIVE"), and Chase Manhattan Bank and Trust Company, National
Association, as escrow agent ("ESCROW AGENT").
A. Concur, ConStar Acquisition Corp., a Delaware corporation
which is a wholly-owned subsidiary of Concur ("SUB"), and Seeker Software, Inc.,
a Delaware corporation ("SEEKER"), have entered into an Agreement and Plan of
Reorganization, dated as of May 26, 1999 (the "PLAN"), a copy of which is
attached hereto as Exhibit "1", pursuant to which Sub will be merged with and
into Seeker, with Seeker surviving the Merger. The capitalized terms used in
this Agreement and not otherwise defined herein will have the same meanings
ascribed to them in the Plan. This Agreement is the Escrow Agreement, as that
term is defined in the Plan.
B. Section 2.4.1 of the Plan provides that Concur will withhold
from the shares of Concur Common Stock that otherwise would be delivered to the
Company Stockholders at the Effective Time a number of such shares equal to ten
percent (10%) thereof (the "INITIAL ESCROW SHARES") and place such Initial
Escrow Shares in an escrow account designated as the Concur/Seeker Escrow
Account or an account having a similar designation (the "ESCROW ACCOUNT") to
secure certain indemnification obligations of Company Stockholders to the
Indemnified Persons under the Plan on the terms and conditions set forth herein.
Section 2.4.2 of the Plan provides that upon Optionholders' exercise of any
Concur Option to purchase shares of Concur Common Stock during the period the
escrow remains in effect under this Agreement, Concur shall withhold ten percent
(10%) of the total number of shares of Concur Common Stock so purchased (or a
smaller percentage if at the time of exercise any Initial Escrow Shares have
been released from the escrow, in which event the percentage shall be reduced to
correspond to the percentage of Initial Escrow Shares then remaining in escrow)
(the "OPTION ESCROW SHARES") and shall place in the Escrow Account such Option
Escrow Shares also to secure the just-identified indemnification obligations.
The shares held in escrow, whether Initial Escrow Shares or Option Escrow Shares
are hereinafter sometimes collectively referred to as the "ESCROW SHARES."
C. The parties hereto desire to establish the terms and
conditions pursuant to which the Escrow Shares will be deposited, held in and
disbursed from the Escrow Account.
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. ESCROW AND INDEMNIFICATION
(a) Deposit of Escrow Share Certificates. Concur will give
Escrow Agent prompt written notice of the Effective Time of the Merger, and
promptly following the
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Effective Time, but in any event within ten (10) business days after the
Effective Time, Concur or its transfer agent will deliver and deposit with
Escrow Agent the Concur Common Stock certificates representing the Initial
Escrow Shares. The stock certificates representing the Initial Escrow Shares
will be issued in the respective names of the Company Stockholders in accordance
with their respective ownership interests in the Initial Escrow Shares as set
forth in Attachment A, and Escrow Agent will hold the certificates for such
Escrow Shares in escrow as collateral for the indemnification obligations of the
Company Stockholders under the Plan and under this Agreement until required to
release the certificates for such Escrow Shares pursuant to the terms of this
Agreement. Escrow Agent agrees to accept delivery of the stock certificates
representing the Escrow Shares and to hold such stock certificates in escrow in
the Escrow Account subject to the terms and conditions of this Agreement. In the
event Concur issues any Option Escrow Shares, the Concur stock certificates
representing such Option Escrow Shares will be delivered by Concur or its
transfer agent to Escrow Agent in the same manner as the certificates for the
Initial Escrow Shares are to be delivered under the foregoing provisions of this
Section 1(a). Unless and until Escrow Agent receives certificates representing
Option Escrow Shares, it may assume without inquiry that no Option Escrow Shares
have been, or are required to be, issued and that the stock certificates that
Escrow Agent has in hand represent all of the Escrow Shares.
(b) Representative. The Representative will act as
representative of the Company Stockholders and the Optionholders for purposes of
this Agreement and the Plan in accordance with the applicable terms and
provisions of the Plan and this Agreement.
(c) Notice of Claim. As used herein, the term "CLAIM"
means a claim for indemnification by the Company Stockholders or Optionholders
of Concur or any other Indemnified Person for Damages under the Plan. Concur
(and only Concur) may give notice of a Claim under this Agreement whether for
its own Damages or for Damages incurred by any other Indemnified Person, and
Concur will give written notice of a Claim executed by an officer of Concur (a
"NOTICE OF CLAIM") to the Representative and Escrow Agent promptly (but in no
event later than ten (10) business days) after Concur becomes aware of the
existence of any potential Claim by an Indemnified Person for indemnity by
Company Stockholders or Optionholders under the Plan, but in any event before
the Escrow Release Date (as defined in Section 11.1 of the Plan).
(d) Escrow Period. As used herein, the term "ESCROW
PERIOD" means that time period beginning at the Effective Time (as defined in
Section 1.2 of the Plan and as set forth in a written notice from Concur
received by Escrow Agent, on which Escrow Agent may rely without inquiry) and
ending on the Escrow Release Date (as defined in Section 11.1 of the Plan).
(e) Limitation on Liability. The maximum liability of each
Company Stockholder and Optionholder for any Damages under Section 11.2 of the
Plan will be as set forth in Article 11 of the Plan. Payments for finally
determined Claims will be deducted from the Escrow Shares of each Company
Stockholder and Optionholder pro rata in proportion to each
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such Company Stockholder's or Optionholder's respective percentage interest in
the Escrow Shares.
2. DEPOSIT OF STOCK POWERS; RELEASE FROM ESCROW.
(a) Delivery of Stock Powers. Promptly following the
Closing, but in any event within ten (10) business days of the Closing Date,
each Company Stockholder will deliver to Escrow Agent a duly endorsed stock
power (a "STOCK POWER") in the form of Attachment B hereto. In the event any
Option Escrow Shares are issued, each Optionholder will promptly execute and
deliver to Escrow Agent a Stock Power for the Option Escrow Shares. If required
by Concur's stock transfer agent at any time, each Company Stockholder and each
Optionholder will procure a medallion guarantee of such Company Stockholder's
signature or such Optionholder's signature on any Stock Power.
(b) Dividends and Adjustment To Escrow Shares. Any shares
of Concur Common Stock issued as a result of, or issued upon the conversion or
exercise of any security issued as a result of, any stock dividend,
reclassification, stock split, subdivision or combination of shares,
recapitalization, merger or other events occurring with respect to Escrow Shares
while they are held in escrow under this Agreement ("ADDITIONAL ESCROW SHARES")
will be delivered to Escrow Agent and held in escrow and distributed to Company
Stockholders and Optionholders or returned to Concur in the same manner and in
the same proportions as the Escrow Shares. For all purposes of this Agreement,
Additional Escrow Shares issued with respect to Escrow Shares will be treated
the same as (and will be considered to be) Escrow Shares. All cash dividends
paid on Escrow Shares while they are held in escrow under this Agreement shall
be immediately distributed to Company Stockholders and Optionholders in
accordance with their interests in the Escrow Shares.
(c) Voting and Rights of Ownership. Each Company
Stockholder and each Optionholder will have the right to vote the Escrow Shares
deposited in the Escrow Account for the account of such Company Stockholder or
Optionholder so long as such Escrow Shares are held in escrow, and Concur will
take all steps necessary to allow the exercise of such voting rights. While the
stock certificates representing the Escrow Shares remain in escrow pursuant to
this Agreement, Company Stockholders and Optionholders will retain and will be
able to exercise all other incidents of ownership of said Escrow Shares that are
not inconsistent with the terms and conditions of this Agreement. Escrow Agent
need not furnish any proxy forms or other information distributed by Concur to
its stockholders generally, it being recognized that, as the registered owners
of the Escrow Shares, they will receive such information from other sources.
(d) Distributions to Company Stockholders and
Optionholders. On the Escrow Release Date, Escrow Agent will release from escrow
to each Company Stockholder and each Optionholder, in accordance with Section
2(e), the stock certificates representing such Company Stockholder's Initial
Escrow Shares as set forth in Attachment A, plus the stock certificates
representing such Optionholders' Option Escrow Shares, plus the stock
certificates representing Additional Escrow Shares issued with respect to such
Escrow Shares minus (i) any
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Escrow Shares delivered to Concur in accordance with Section 4 in satisfaction
of Claims by Concur and minus (ii) any Escrow Shares that may be subject to
delivery to Concur in accordance with Section 4 with respect to any then pending
but unresolved Claims of any Indemnified Persons. Any Escrow Shares held as a
result of clause (ii) will be released to Company Stockholders or Optionholders
or released to Concur for cancellation (as appropriate in accordance with the
terms of this Agreement) promptly upon resolution of each specific Claim
involved.
(e) Release of Shares; Legend. The certificates
representing the Escrow Shares will be held by Escrow Agent until required to be
released pursuant to Section 2(d) or Section 4. Within three (3) business days
after the Escrow Release Date or, with respect to any Escrow Shares held as a
result of clause (ii) of Section 2(d), after the date when the applicable
release condition hereunder is met, Escrow Agent will promptly (after any
cancellation and reissuance of share certificates by Concur's transfer agent (at
Escrow Agent's instruction) that is necessary for Escrow Agent to effect such
delivery) deliver to the Company Stockholders and Optionholders, in accordance
with their respective percentage ownership interests therein, the requisite
number of Escrow Shares to be released to each such Company Stockholder or
Optionholder on such date. Such delivery will be in the form of Concur stock
certificate(s) issued in the names of such Company Stockholders and
Optionholders. Stock certificates representing Escrow Shares will (until they
are released to Company Stockholders or Optionholders or Concur in accordance
with this Agreement and the Plan) bear the following legend indicating that they
are subject to this Agreement:
"THE SECURITIES REPRESENTED HEREBY MAY BE OFFERED, SOLD OR OTHERWISE
TRANSFERRED, PLEDGED OR HYPOTHECATED ONLY IN ACCORDANCE WITH THE
TERMS OF AN ESCROW AGREEMENT AMONG THE ISSUER, THE HOLDER THEREOF AND
ESCROW AGENT. A COPY OF SUCH AGREEMENT IS ON FILE AT THE PRINCIPAL
OFFICE OF THE ISSUER."
Such legend shall be removed from certificates representing Escrow Shares prior
to the release of such Escrow Shares.
(f) No Encumbrance. No Escrow Shares or any beneficial
interest therein may be sold, assigned, or transferred, pledged or otherwise
encumbered other than by operation of law or the laws of descent and
distribution (and in either such case, the transferee will be subject to all
terms and provisions of this Agreement), or be taken or reached by any legal or
equitable process in satisfaction of any debt, obligation or other liability of
any Company Stockholder or Optionholder (other than such Company Stockholder's
obligations or Optionholder's obligations under the Plan), prior to the delivery
by Escrow Agent to such Company Stockholder or Optionholder of the stock
certificates representing such Escrow Shares.
(g) Power to Transfer Escrow Shares. Escrow Agent is
hereby granted the power to effect any transfer of Escrow Shares contemplated by
this Agreement. Concur will cooperate (and cause its transfer agent to
cooperate) with Escrow Agent in promptly issuing
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stock certificates to effect such transfers (including the cancellation and
re-issuance of share certificates representing canceled and other Escrow
Shares).
3. NOTICE OF CLAIM.
(a) Each Notice of Claim by Concur given pursuant to
Section 1(c) will contain the following information:
(i) Concur's good faith estimate of the reasonably
foreseeable maximum amount of the alleged Damages arising from such Claim (which
amount may be the amount of damages claimed by a third party in an action
brought against any Indemnified Person based on alleged facts, which if true,
would give rise to liability for Damages to such Indemnified Person under
Article 11 of the Plan); and
(ii) a brief description, in reasonable detail (to
the extent reasonably available to Concur), of the facts, circumstances or
events giving rise to the alleged Damages based on Concur's good faith belief
thereof, including, without limitation, the identity and address of any
third-party claimant (to the extent reasonably available to Concur) and copies
of any formal demand or complaint.
(b) Escrow Agent will not transfer any of the Escrow
Shares held in the Escrow Account to Concur pursuant to a Notice of Claim
received by Escrow Agent prior to the Escrow Release Date until such Notice of
Claim has been resolved in accordance with Section 4.
4. RESOLUTION OF NOTICE OF CLAIM AND TRANSFER OF ESCROW SHARES.
Any Notice of Claim received by the Representative and Escrow Agent pursuant to
Section 1(c) and Section 3 above will be resolved as follows:
(a) Uncontested Claims. In the event that, within thirty
(30) calendar days after the Notice of Claim containing a statement of the
claimed Damages is received by the Representative and the Escrow Agent pursuant
to Section 3, the Representative does not contest such Notice of Claim in
writing to Escrow Agent and Concur as provided in Section 4(b) (an "UNCONTESTED
CLAIM"), Escrow Agent will (i) after such thirty (30) day period, immediately
transfer to Concur (promptly after any cancellation and reissuance of share
certificates for Escrow Shares by Concur's transfer agent (at Escrow Agent's
instruction) that is necessary for Escrow Agent to effect such transfer) for
cancellation and forfeiture that number of Escrow Shares having a value
(determined pursuant to Section 4(e)) equal to the amount of Damages specified
in the Notice of Claim, which canceled Escrow Shares will be taken from and
forfeited by the Company Stockholders and Optionholders pro rata in proportion
to their respective percentage ownership interests in the Escrow Shares and (ii)
notify the Representative in writing of such transfer and forfeiture of Escrow
Shares as promptly as practical thereafter (but in no event more than two (2)
days after such transfer).
(b) Contested Claims. In the event that the Representative
gives Concur and Escrow Agent written notice contesting all or any portion of a
Notice of Claim (a "CONTESTED CLAIM") within the thirty (30) day period
specified in Section 4(a), then: (i) such Contested
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Claim will be resolved by either (A) a written settlement agreement executed by
Concur and the Representative or (B) in the absence of such a written settlement
agreement, by final, non-appealable decision of an appropriate federal or state
court pursuant to Section 10(a) ("FINAL JUDGMENT"). After receiving notice that
the Notice of Claim is contested by the Representative, Escrow Agent will
continue to hold in the Escrow Account stock certificates representing Escrow
Shares having a value equal to the amount claimed in the Notice of Claim until
(i) execution of a settlement agreement by Concur and the Representative setting
forth a resolution of all such Contested Claims, (ii) receipt of a copy of a
Final Judgment or (iii) the Escrow Shares are required to be released under the
terms of this Agreement, and will then dispose of the remaining Escrow Shares
pursuant to the applicable provisions of this Agreement.
(c) Release of Escrow Shares Pursuant to Court Decision.
Upon its receipt of a copy of a Final Judgment, Escrow Agent will: (i)
immediately release from escrow and transfer to Concur (promptly after any
cancellation and reissuance of share certificates for Escrow Shares by Concur's
transfer agent (at Escrow Agent's instruction) that is necessary for Escrow
Agent to effect such transfer) for cancellation that number of Escrow Shares
having a value equal to the amount of Damages (if any) owed to the Indemnified
Persons pursuant to the Final Judgment which transferred and forfeited Escrow
Shares will be taken from and forfeited by each of the Company Stockholders and
Optionholders pro rata in proportion to such Company Stockholder's and
Optionholder's respective percentage interest in the Escrow Shares; and (ii)
notify the Representative in writing of such transfer and forfeiture of Escrow
Shares as promptly as reasonably practicable (but in no event more than two (2)
days after such transfer).
(d) Settled Claims. If a Claim (including a Contested
Claim) is settled by a written settlement agreement executed by the
Representative and Concur (a "SETTLED CLAIM"), then the Representative and
Concur will promptly deliver such executed settlement agreement to Escrow Agent
together with written instructions executed by both Concur and the
Representative to Escrow Agent ("SETTLEMENT INSTRUCTIONS") which will, in
accordance with and subject to the terms of the written settlement agreement,
instruct Escrow Agent either: (i) to release a stated number of Escrow Shares to
Concur or the Company Stockholders or Optionholders, as applicable, pursuant to
such settlement agreement; or (ii) that no action need be taken by Escrow Agent
with respect to such Claim. Upon its receipt of such settlement agreement and
Settlement Instructions instructing Escrow Agent to release Escrow Shares to
Concur, Escrow Agent will: (i) immediately release from escrow and transfer to
Concur (promptly after any cancellation and reissuance of share certificates for
Escrow Shares by Concur's transfer agent (at Escrow Agent's instruction) that is
necessary for Escrow Agent to effect such transfer) or the Company Stockholders
or Optionholders, as applicable, for cancellation that number of Escrow Shares
that Concur and the Representative have agreed will be transferred and forfeited
by the Company Stockholders and Optionholders in such Settlement Instructions,
which transferred and forfeited Escrow Shares will be taken from and forfeited
by each of the Company Stockholders and Optionholders pro rata in proportion to
such Company Stockholder's and Optionholder's respective percentage interest in
the Escrow Shares; and (ii) notify the Representative in writing of such
transfer and forfeiture of Escrow Shares as promptly as reasonably practicable
(but in no event more than two (2) days after such transfer).
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(e) Determination of Number of Escrow Shares Forfeited.
Any amount of Damages incurred by any Indemnified Person and owed to Concur on
account of a Claim, determined pursuant to the foregoing provisions of this
Section 4, will be immediately payable to Concur out of the Escrow Shares then
held by Escrow Agent, and the forfeited Escrow Shares will be taken from and
forfeited by the Company Stockholders and Optionholders pro rata in proportion
to their respective percentage interests in the Escrow Shares. In distributing
Escrow Shares to satisfy Claims for Damages, Escrow Agent shall round down the
number of shares so that only a whole number of shares is distributed. No
cash-in-lieu payments need be made by Escrow Agent. For purposes of this
Agreement, Escrow Shares will be deemed to have a per share value equal to the
Concur Closing Average Price Per Share (as defined in Section 1.12 of the Plan -
such price per share to be adjusted to reflect any Capital Change of the type
described in Section 2.3 of the Plan, whether occurring at or after the
Effective Time, if Escrow Agent has received written notice of such Capital
Change as set forth below). Thus, the number of Escrow Shares to be released
from escrow, forfeited by Company Stockholders and Optionholders and transferred
to Concur in satisfaction of a Claim for Damages (whether an Uncontested Claim,
a Contested Claim or a Settled Claim) will be the amount of such Damages divided
by the Concur Closing Average Price Per Share (such price per share to be
equitably adjusted to reflect any Capital Change of the type described in
Section 2.3 of the Plan, whether occurring at or after the Effective Time, if
Escrow Agent has received written notice of such Capital Change as set forth
below). Concur will promptly give Escrow Agent and the Representative written
notice of the occurrence of any Capital Change and the impact thereof on the
Concur Closing Average Price Per Share referred to above. Unless and until
Escrow Agent has received written notice from Concur of a Capital Change, Escrow
Agent may assume without inquiry that none has occurred.
(f) Multiple Claims Permitted. The assertion of any single
Claim for indemnification hereunder will not bar Concur from asserting any other
Claim or Claims hereunder. No Claims may be asserted against the Seeker
Stockholders except as provided by the Plan. Nothing contained herein alters any
of the provisions of the Plan.
5. LIMITATION OF ESCROW AGENT'S LIABILITY.
(a) Escrow Agent will incur no liability with respect to
any action taken or suffered by it in reliance upon any notice, direction,
instruction, consent, statement or other document believed by it to be genuine
and duly authorized, nor for any other action or inaction, except its own
willful misconduct or gross negligence. Escrow Agent will have no duty to
inquire into or investigate the validity, accuracy or content of any document
delivered to it. Escrow Agent will not be responsible for the validity or
sufficiency of this Agreement. In all questions arising under this Agreement,
Escrow Agent may rely on the advice or opinion of its counsel, and for anything
done, omitted or suffered in good faith by Escrow Agent based on such advice,
Escrow Agent will not be liable to anyone. Escrow Agent will not be required to
take any action hereunder involving any expense unless the payment of such
expense is made or provided for in a manner satisfactory to it.
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(b) In the event conflicting demands are made or
conflicting notices are served upon Escrow Agent with respect to the Escrow
Account, Escrow Agent will have the absolute right, at Escrow Agent's election,
to do either or both of the following: (i) resign so a successor can be
appointed pursuant to Section 7 or (ii) file a suit in interpleader and obtain
an order from a court of competent jurisdiction located in the County of Santa
Clara, California (the "STIPULATED JURISDICTION") requiring the parties to
interplead and litigate in such court their several claims and rights among
themselves. For the purpose of this Section 5(b) and for the enforcement of any
Final Award, the parties each consent to the personal jurisdiction of the
federal and State courts in the Stipulated Jurisdiction and waive any objection
to the venue (except those arising from subject-matter jurisdiction of the
court) and rights to request dismissal on the grounds of forum non conveniens or
similar doctrines. In the event such interpleader suit is brought and Escrow
Shares are deposited as required by applicable procedural rules governing
litigation in interpleader in the Stipulated Jurisdiction, Escrow Agent will be
entitled (upon Court order) to be fully released and discharged from all further
obligations imposed upon it under this Agreement, and Concur will pay Escrow
Agent all costs, expenses and reasonable attorney's fees expended or incurred by
Escrow Agent pursuant to the exercise of Escrow Agent's rights under this
Section 5 (such costs, fees and expenses will be treated as extraordinary fees
and expenses for the purposes of Section 6). Concur will be entitled, pursuant
to Section 6, to reimbursement from the Seeker Stockholders of any extraordinary
fees and expenses of Escrow Agent in the event Concur prevails in such dispute.
(c) Each party to this Agreement (other than Escrow
Agent), jointly and severally (each an "INDEMNIFYING PARTY" and together the
"INDEMNIFYING PARTIES") hereby covenants and agrees to reimburse, indemnify and
hold harmless Escrow Agent, Escrow Agent's officers, directors, employees,
counsel and agents (severally and collectively, "ESCROW AGENT"), from and
against any damage, liability or loss suffered, incurred by, or asserted against
Escrow Agent (including amounts paid in settlement of any action, suit,
proceeding, or claim brought or threatened to be brought and including
reasonable expenses of legal counsel, collectively, "LOSS") arising out of, in
connection with or based upon any act or omission by Escrow Agent (and/or any of
its officers, directors, employees, counsel or agents) relating in any way to
this Agreement or Escrow Agent's services hereunder. This indemnity will exclude
any indemnification for any Loss arising in whole or in part, directly or
indirectly, from any gross negligence or willful misconduct on Escrow Agent's
part. Anything in this Agreement to the contrary notwithstanding, in no event
will Escrow Agent be liable for special, indirect or consequential loss or
damage of any kind whatsoever (including but not limited to lost profits)
suffered by another party to this Agreement or by any Company Stockholder or
Optionholder, even if Escrow Agent has been advised of the likelihood of such
loss or damage and regardless of the form of action.
(d) Each Indemnifying Party may participate at its own
expense in the defense of any claim or action that may be asserted against
Escrow Agent related to this Agreement, and if the Indemnifying Parties so
elect, the Indemnifying Parties may assume the defense of such claim or action;
provided, however, that, if there exists a conflict of interest that would make
it inappropriate, in the sole discretion of Escrow Agent, for the same counsel
to represent both Escrow Agent and the Indemnifying Parties, Escrow Agent's
retention of separate
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counsel will be reimbursable as herein above provided. Escrow Agent's right to
indemnification hereunder will survive Escrow Agent's resignation or removal as
Escrow Agent and will survive the termination of this Agreement by lapse of time
or otherwise.
(e) Escrow Agent hereby warrants that Escrow Agent will
notify each Indemnifying Party by letter, or by telephone or telecopy confirmed
by letter, of any receipt by Escrow Agent of a written assertion of a claim
against Escrow Agent arising out of this Agreement, or any action commenced
against Escrow Agent arising out of this Agreement, within five (5) business
days after Escrow Agent's receipt of written notice of such claim. However,
Escrow Agent's failure to so notify each Indemnifying Party will not operate in
any manner whatsoever to relieve an Indemnifying Party from any liability that
it may have to Escrow Agent under this Section 5 or otherwise unless such
failure by Escrow Agent to give such notice (or to give such notice within such
five (5) business day period) materially prejudices such Indemnifying Party.
(f) Escrow Agent may execute any of its powers or
responsibilities hereunder and exercise any rights hereunder either directly or
by or through its agents or attorneys. Escrow Agent will have no liability for
the conduct of any outside attorneys, accountants or other similar professionals
it retains. Nothing in this Agreement will be deemed to impose upon Escrow Agent
any duty to qualify to do business or to act as a fiduciary or otherwise in any
jurisdiction other than the State of California.
6. EXPENSES OF ESCROW AGENT. All fees and expenses of Escrow
Agent incurred in the ordinary course of performing its responsibilities under
this Agreement will be paid by Concur upon receipt of a written invoice from
Escrow Agent. A schedule of the fees of Escrow Agent is attached hereto as
Attachment C. Any extraordinary fees and expenses, including without limitation
any fees or expenses (including the reasonable fees or expenses of counsel to
Escrow Agent) incurred by Escrow Agent in connection with a dispute over the
distribution of Escrow Shares or the validity of a Notice of Claim, will be paid
by Concur upon receipt of a written invoice by Escrow Agent. The Company
Stockholders and Optionholders will reimburse the Representative pro rata,
according to their respective ownership interests in the Escrow Shares for all
expenses (including without limitation indemnification expenses incurred under
Section 5 of this Agreement) reasonably incurred by the Representative in the
course of performing the Representative's duties under this Agreement. Escrow
Agent will have no duty to solicit any payments which may be due it hereunder.
7. SUCCESSOR ESCROW AGENT. In the event Escrow Agent becomes
unavailable or unwilling to continue in its capacity herewith, Escrow Agent may
resign and be discharged from its duties or obligations hereunder by giving
notice of its resignation to the parties to this Agreement, specifying a date
not less than ten (10) days following such notice date of when such resignation
will take effect. Concur will designate a successor Escrow Agent prior to the
expiration of such ten (10) day period by giving written notice to Escrow Agent
and the Representative; provided, however, that, Concur may appoint a successor
Escrow Agent without the consent of the Representative only so long as such
successor is a bank or trust company which, together with its parent, has assets
of at least US $10 million, and may appoint any other
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successor Escrow Agent only with the consent of the Representative, which will
not be unreasonably withheld. Escrow Agent will promptly transfer the stock
certificates representing the Escrow Shares to such designated successor.
8. MERGER OF ESCROW AGENT. In the event Escrow Agent is merged
with, acquired or otherwise combined with another entity, or Escrow Agent
transfers all or substantially all of its corporate trust business (including
the escrow contemplated by this Agreement) to another institution, the successor
as a result of such transaction will be Escrow Agent hereunder without any
further action by the parties hereto.
9. LIMITATION OF RESPONSIBILITY. Escrow Agent's duties are
limited to those set forth in this Agreement, and Escrow Agent, acting as such
under this Agreement, is not charged with knowledge of or any duties or
responsibilities under any other document or agreement, including without
limitation the Plan. Escrow Agent may execute any of its powers or
responsibilities hereunder and exercise any rights hereunder either directly or
by or through its agents or attorneys. Escrow Agent will not be responsible for
and will not be under a duty to examine into or pass upon the validity, binding
effect, execution or sufficiency of this Agreement or of any agreement
amendatory or supplemental hereto.
10. GENERAL PROVISIONS
(a) 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.
(b) Assignment; Binding Upon Successors and Assigns. No
party hereto may assign any of its rights or obligations hereunder without the
prior written consent of the other parties hereto; provided, however, that the
Representative may upon written notice to the Escrow Agent, Concur and all of
the holders of Escrow Shares appoint a successor Representative who has agreed
in a writing reasonably satisfactory in form and substance to Concur and Escrow
Agent to be bound by all of the terms of this Agreement as the "Representative"
hereunder. This Agreement will be binding upon and inure to the benefit of the
parties hereto and their respective successors and permitted assigns.
(c) Severability. If any provision of this Agreement, or
the application thereof, will for any reason and to any extent be invalid or
unenforceable, then 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.
(d) 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
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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, bear the signatures of all parties reflected
hereon as signatories.
(e) Amendment; Waiver. This Agreement may be amended by
the written agreement of Concur, Escrow Agent and the Representative, provided
that, if Escrow Agent does not agree to an amendment agreed upon by Concur and
the Representative, Escrow Agent will resign and Concur will appoint a successor
Escrow Agent in accordance with Section 7. No amendment of the Plan will
increase Escrow Agent's responsibilities or liability hereunder without Escrow
Agent's written agreement. No waiver by any party hereto of any condition or of
any breach of any provision of this Agreement will be effective unless such
waiver is set forth in a writing signed by such party. No waiver by any party of
any such condition or breach, in any one instance, will be deemed to be a
further or continuing waiver of any such condition or breach or a waiver of any
other condition or breach of any other provision contained herein.
(f) 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 (5) days after mailing if sent by
mail, and one (l) 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 Escrow Agent: Chase Manhattan Bank and Trust Company,
National Association
101 California Street, Suite 2725
San Francisco, CA 94111
Attention: Paula Oswald
Telephone: (415) 954-9526
Facsimile: (415) 693-8850
E-mail: paula.oswald@chase.com
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
Palo Alto, CA 94306
Attention: Matthew P. Quilter
Fax Number: (650) 494-1417
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If to the Representative: Seeker Software, Inc.
Robert K. Reid, Chief Executive Officer
2101 Webster Street, Suite 1600
Oakland, CA 94612
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 Concur, the Representative or Escrow Agent, as the
case may be, designates in a writing delivered to each of the other parties
hereto.
(g) Construction. 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. Unless otherwise indicated herein,
all references in this Agreement to "Sections" refer to sections of this
Agreement. 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.
11. TAX REPORTING MATTERS
(a) The Escrow Agent may require each of the Company
Stockholders and Optionholders to provide Escrow Agent with a certified tax
identification number for such Company Stockholder and such Optionholder by
furnishing appropriate Form W-9 (or Form W-8, in the case of non-U.S. persons)
and other forms and documents that Escrow Agent may reasonably request
(collectively, "TAX REPORTING DOCUMENTATION"). The parties hereto understand
that, if such Tax Reporting Documentation is not so certified to Escrow Agent,
Escrow Agent may be required by the Internal Revenue Code of 1986, as it may be
amended from time to time, to withhold a portion of any interest or other income
earned on the investment of monies or other property held by Escrow Agent
pursuant to this Agreement ("ESCROWED CASH").
(b) Escrow Agent need not make any distribution of any
Escrowed Cash to any Company Stockholder or Optionholder (or any assignee or
transferee of such Company Stockholder) until such Company Stockholder or
Optionholder (or assignee or transferee) has furnished to Escrow Agent such Tax
Reporting Documentation as Escrow Agent may reasonably require.
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(c) Any Escrowed Cash received by Escrow Agent shall be
allocable for tax reporting purposes to the Company Stockholders and
Optionholders in accordance with their pro rata percentage interests in the
Escrow Shares.
[REMAINDER OF THIS PAGE LEFT BLANK INTENTIONALLY.]
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IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the day and year first above written.
CONCUR TECHNOLOGIES, INC.
By: /s/ STERLING WILSON
----------------------------------------
Name: Sterling Wilson
--------------------------------------
Title: CFO AND EXECUTIVE VICE PRESIDENT OF OPERATIONS
-----------------------------------------------
ESCROW AGENT:
CHASE MANHATTAN BANK AND TRUST COMPANY, N.A.
By: /s/ HANS H. HELLEY
-----------------------------------------
Authorized Signatory
Hans H. Helley
Assistant Vice President
REPRESENTATIVE:
/s/ GARY DURBIN
- -----------------------------------------
Gary Durbin
/s/ ROBERT REID
- -----------------------------------------
Robert Reid
/s/ JON BLANKMEYER
- -----------------------------------------
Jon Blankmeyer
ATTACHMENTS
Attachment A: Seeker Stockholders
Attachment B: Stock Power
Exhibit 1: Agreement and Plan of Reorganization
[SIGNATURE PAGE TO ESCROW AGREEMENT]
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ATTACHMENT A TO ESCROW AGREEMENT
SHAREHOLDER'S
SEEKER STOCKHOLDER NAME, ADDRESS [AND TAXPAYER NUMBER OF INITIAL
IDENTIFICATION NUMBER] ESCROW SHARES
---------------------- -------------
A-1
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ATTACHMENT B TO ESCROW AGREEMENT
STOCK POWER AND ASSIGNMENT
SEPARATE FROM CERTIFICATE
In connection with the merger (the "MERGER") of ConStar Acquisition
Corp., a wholly owned subsidiary of Concur Technologies, Inc. ("CONCUR"), with
and into Seeker, Inc. (the "COMPANY"), the undersigned is receiving shares of
Concur Common Stock in respect of the shares of Company Common Stock and/or
Company Preferred Stock held by the undersigned immediately prior to the Merger.
FOR VALUE RECEIVED, and pursuant to that certain Agreement and Plan of
Reorganization dated as of May __, 1999 (the "PLAN") and that certain Escrow
Agreement dated as of May ____, 1999 executed in connection therewith (the
"ESCROW AGREEMENT"), the undersigned hereby assigns and transfers unto
______________________________, as Escrow Agent (the "AGENT") pursuant to the
Plan and the Escrow Agreement, ________ shares of the Common Stock of Concur
(the "SHARES") represented by stock certificate No. ____ tendered herewith.
The undersigned hereby irrevocably appoints the Agent, as
attorney-in-fact, with full power of substitution and re-substitution, to hold
any and all certificates for such Shares in escrow and to transfer such Shares
on the books of Concur solely to the extent provided in the Escrow Agreement.
Dated: ________, 199_
Name:________________________
By:__________________________
Title: ______________________
B-1
17
EXHIBIT 1 TO ESCROW AGREEMENT
AGREEMENT AND PLAN OF REORGANIZATION