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EXHIBIT 4.02
CONCUR TECHNOLOGIES, INC.
THIRD AMENDED AND RESTATED INFORMATION
AND REGISTRATION RIGHTS AGREEMENT
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TABLE OF CONTENTS
PAGE
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1. Certain Definitions ........................................................... 1
2. Financial Statements and Reports to Shareholders .............................. 2
3. Additional Information ........................................................ 2
4. Inspection .................................................................... 2
5. Right of First Refusal ........................................................ 2
6. Termination of Covenants ...................................................... 2
7. Demand Registration ........................................................... 3
7.1 Request for Registration on Form Other Than Form S-3 ..................... 3
7.2 Right of Deferral of Registration on Form Other Than S-3 ................. 3
7.3 Request for Registration on Form S-3 ..................................... 3
7.4 Registration of Other Securities in Demand Registration .................. 4
7.5 Underwriting in Demand Registration ...................................... 4
7.5.1 Notice of Underwriting .......................................... 4
7.5.2 Inclusion of Other Holders in Demand Registration ............... 5
7.5.3 Selection of Underwriter in Demand Registration ................. 5
7.5.4 Marketing Limitation in Demand Registration ..................... 5
7.5.5 Right of Withdrawal in Demand Registration ...................... 6
7.6 Blue Sky in Demand Registration .......................................... 6
8. Piggyback Registration ........................................................ 6
8.1 Notice of Piggyback Registration and Inclusion of Registrable
Securities .......................................................... 6
8.2 Underwriting in Piggyback Registration ................................. 6
8.2.1 Notice of Underwriting in Piggyback Registration ................ 6
8.2.2 Marketing Limitation in Piggyback Registration .................. 7
8.2.3 Allocation of Shares in Piggyback Registration .................. 7
8.2.4 Withdrawal in Piggyback Registration ............................ 7
8.3 Blue Sky in Piggyback Registration ........................................ 8
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TABLE OF CONTENTS
(CONTINUED)
PAGE
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9. Expenses of Registration ...................................................... 8
10. Termination of Registration Rights ............................................ 8
11. Registration Procedures and Obligations ....................................... 9
12. Information Furnished by Holder ............................................... 10
13. Indemnification ............................................................... 10
13.1 Company's Indemnification of Holders ................................... 10
13.2 Holder's Indemnification of Company .................................... 10
13.3 Indemnification Procedure .............................................. 11
13.4 Contribution ........................................................... 12
14. Limitations on Registration Rights Granted to Other Securities ................ 12
15. Transfer of Rights ............................................................ 12
16. Market Stand-off .............................................................. 13
17. Conversion of Preferred Stock ................................................. 13
18. Reports Under Securities Exchange Act of 1934 ................................. 13
19. Miscellaneous ................................................................. 14
19.1 Entire Agreement; Successors and Assigns ............................... 14
19.2 Governing Law .......................................................... 14
19.3 Counterparts ........................................................... 14
19.4 Headings ............................................................... 14
19.5 Notices ................................................................ 14
19.6 Amendment of Agreement ................................................. 15
19.7 Severability ........................................................... 15
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THIRD AMENDED AND RESTATED INFORMATION
AND REGISTRATION RIGHTS AGREEMENT
This THIRD AMENDED AND RESTATED INFORMATION AND REGISTRATION RIGHTS
AGREEMENT (the "Agreement") is made as of May __, 1999, by and among Concur
Technologies, Inc., a Delaware corporation (the "Company"), and the persons
listed on the attached Schedule A who become signatories to this Agreement and
the persons listed on the attached Schedule B (collectively, the "Investors").
R E C I T A L S
A. The Company and the Investors have entered into agreements for sale
by the Company and purchase by the Investors of the Company's securities.
B. In connection with the purchase and sale of the Company's securities,
the Company and the Investors desire to provide for the rights of the Investors
with respect to information about the Company and registration of the Company's
common stock ("Common Stock") issued upon conversion or exercise of the
securities according to the terms of this Agreement. In addition, the Investors
who were parties to the Second amended and Restated Information and Registration
Rights Agreement made as of May 29, 1998 (the "Previous Agreement") desire to
amend and restate the Previous Agreement as set forth below and consent to the
addition, as parties to this Agreement, of the Investors listed on Schedule A
who acquire shares of the Company's Common Stock pursuant to the Company's
acquisition by merger of Seeker Software, Inc. (the "Seeker Acquisition").
THE PARTIES AGREE AS FOLLOWS:
1. Certain Definitions.
As used in this Agreement, the following terms shall have the
following respective meanings:
(a) "Commission" shall mean the Securities and Exchange
Commission or any other federal agency at the time administering the Securities
Act.
(b) "Convertible Securities" shall mean securities of the Company
convertible into or exchangeable for Common Stock of the Company or into other
securities that are convertible into or exchangeable for Common Stock.
(c) "Form S-3" shall mean Form S-3 issued by the Commission or
any substantially similar form then in effect.
(d) "Holder" shall mean any holder of outstanding Registrable
Securities which have not been sold to the public, but only if such holder is
one of the Investors or an assignee or transferee of Registration rights as
permitted by Section 15.
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(e) "Initiating Holders" shall mean Holders who in the aggregate
hold at least twenty-five percent (25%) of the Registrable Securities.
(f) "Material Adverse Event" shall mean an occurrence having a
consequence that either (a) is materially adverse as to the business,
properties, prospects, or financial condition of the Company or (b) is
reasonably foreseeable, has a reasonable likelihood of occurring, and if it were
to occur might materially adversely affect the business, properties, prospects,
or financial condition of the Company.
(g) The terms "Register", "Registered", and "Registration" refer
to a registration effected by preparing and filing a registration statement in
compliance with the Securities Act ("Registration Statement"), and the
declaration or ordering of the effectiveness of such Registration Statement.
(h) "Registrable Securities" shall mean all Common Stock not
previously sold to the public and issued or issuable upon conversion or exercise
of any of the Company's Convertible Securities purchased by or issued to the
Investors, including Common Stock issued pursuant to stock splits, stock
dividends and similar distributions, and any securities of the Company granted
registration rights pursuant to Section 14 of this Agreement.
(i) "Registration Expenses" shall mean all expenses incurred by
the Company in complying with Sections 7 or 8 of this Agreement, including,
without limitation, all federal and state registration, qualification, and
filing fees, printing expenses, fees and disbursements of counsel for the
Company and one special counsel for Holders (if different from the Company),
blue sky fees and expenses, and the expense of any special audits incident to or
required by any such registration.
(j) "Securities Act" shall mean the Securities Act of 1933, as
amended, or any similar federal statute, and the rules and regulations of the
Commission thereunder, all as the same shall be in effect at the time.
(k) "Selling Expenses" shall mean all underwriting discounts and
selling commissions applicable to the sale of Registrable Securities pursuant to
this Agreement.
2. Financial Statements and Reports to Shareholders.[Terminated]
3. Additional Information.[Terminated]
4. Inspection.[Terminated]
5. Right of First Refusal.[Terminated]
6. Termination of Covenants.
The covenants of the Company that had been set forth in Sections
2, 3, 4 and 5 of the Previous Agreement were terminated and became of no further
force or effect upon the closing of the first public offering of the Common
Stock of the Company that was effected
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pursuant to a Registration Statement filed with, and declared effective by, the
Commission under the Securities Act.
7. Demand Registration.
7.1 Request for Registration on Form Other Than Form S-3.
Subject to the terms of this Agreement, in the event that
the Company shall receive from the Initiating Holders at any time after October
31, 1999, a written request that the Company effect any Registration with
respect to all or a part of the Registrable Securities on a Form other than Form
S-3 for an offering of at least 25% of the then outstanding Registrable
Securities (or any lesser percent if the reasonably anticipated aggregate
offering price to the public would exceed $10,000,000), the Company (i) shall
promptly give written notice of the proposed Registration to all other Holders
and (ii) shall, as soon as practicable, use its best efforts to effect
Registration of the Registrable Securities specified in such request, together
with any Registrable Securities of any Holder joining in such request as are
specified in a written request given within 20 days after written notice from
the Company. The Company shall not be obligated to take any action to effect any
such Registration pursuant to this Section 7.1 (i) during the period starting
with the date sixty (60) days prior to the Company's estimated date of filing,
and ending on the date sixty (60) days immediately following the effective date
of an underwritten public offering pertaining to securities of the Company
(other than a registration of securities in a Rule 145 transaction or with
respect to an employee benefit plan) provided that the Company is employing all
reasonable efforts in good faith to cause such Registration to become effective
or (ii) after the Company has effected three such Registrations pursuant to this
Section 7.1 and such Registrations have been declared effective.
7.2 Right of Deferral of Registration on Form Other Than Form
S-3.
If the Company shall furnish to all such Holders who
joined in the request a certificate signed by the President of the Company
stating that, in the good faith judgment of the Board of Directors of the
Company, it would be seriously detrimental to the Company for any Registration
to be effected as requested under Section 7.1, the Company shall have the right,
exercisable not more than once in any twelve-month period, to defer the filing
of a Registration Statement with respect to such offering for a period of not
more than 90 days from delivery of the request of the Initiating Holders.
7.3 Request for Registration on Form S-3.
(a) If a Holder or Holders of the outstanding Registrable
Securities request that the Company file a Registration Statement on Form S-3
(or any successor form to Form S-3) for a public offering of shares of
Registrable Securities the reasonably anticipated aggregate price to the public
of which, net of underwriting discounts and commissions, would not be less than
$2,000,000, and the Company is a registrant entitled to use Form S-3 to register
the Registrable Securities for such an offering, the Company shall use all
reasonable efforts to cause such Registrable Securities to be Registered for the
offering on such form and to cause such Registrable Securities to be qualified
in such jurisdictions as the Holder or Holders may
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reasonably request; provided, however, that the Company shall not be required to
effect more than two Registrations pursuant to this Section 7.3 in any twelve
(12) month period. The substantive provisions of Section 7.5 shall be applicable
to each registration initiated under this Section 7.3.
(b) Notwithstanding the foregoing, the Company shall not
be obligated to file a registration statement pursuant to this Section 7.3:
(i) in any particular jurisdiction in which the
Company would be required to execute a general consent to service of process in
effecting such registration, qualification, or compliance unless the Company is
already subject to service in such jurisdiction and except as may be required by
the Securities Act;
(ii) if the Company, within ten (10) days of the
receipt of the request of the Initiating Holders, gives notice of its bona fide
intention to effect the filing of a registration statement with the Commission
within sixty (60) days of receipt of such request (other than with respect to a
registration statement relating to a Rule 145 transaction or an offering solely
to employees), provided that the Company is actively employing in good faith all
reasonable efforts to cause such registration statement to become effective;
(iii) within six months immediately following the
effective date of any registration statement pertaining to the securities of the
Company (other than a registration of securities in a Rule 145 transaction or
with respect to an employee benefit plan); or
(iv) if the Company shall furnish to such Holders a
certificate signed by the President of the Company stating that in the good
faith judgment of the Board of Directors it would be seriously detrimental to
the Company or its shareholders for a registration statement to be filed in the
near future, then the Company's obligation to use its best efforts to file a
registration statement shall be deferred for a period not to exceed 90 days from
the receipt of the request to file such registration by such Holder provided
that the Company shall not exercise the right contained in this paragraph (iv)
more than once in any twelve (12) month period.
7.4 Registration of Other Securities in Demand Registration.
Any Registration Statement filed pursuant to the request
of the Initiating Holders under this Section 7 may, subject to the provisions of
Section 7.5, include securities of the Company in addition to Registrable
Securities.
7.5 Underwriting in Demand Registration.
7.5.1 Notice of Underwriting.
If the Initiating Holders intend to distribute the
Registrable Securities covered by their request by means of an underwriting,
they shall so advise the Company as a part of their request made pursuant to
this Section 7, and the Company shall
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include such information in the written notice referred to in Section 7.1 or
7.3. The right of any Holder to Registration pursuant to Section 7 shall be
conditioned upon such Holder's agreement to participate in such underwriting and
the inclusion of such Holder's Registrable Securities in the underwriting.
7.5.2 Inclusion of Other Holders in Demand Registration.
If the Company, officers or directors of the Company
holding Common Stock other than Registrable Securities, or holders of securities
other than Registrable Securities, request inclusion in such Registration, the
Initiating Holders, to the extent they deem advisable and consistent with the
goals of such Registration, may, in their sole discretion, on behalf of all
Holders, offer to any or all of the Company, such officers or directors, and
such holders of securities other than Registrable Securities that such
securities other than Registrable Securities be included in the underwriting and
may condition such offer on the acceptance by such persons of the terms of this
Section 7. In the event, however, that the number of shares so included exceeds
the number of shares of Registrable Securities included by all Holders, such
Registration shall be treated as governed by Section 8 hereof rather than
Section 7, and it shall not count as a Registration for purposes of Section 7.1
hereof.
7.5.3 Selection of Underwriter in Demand Registration.
The Company shall (together with all Holders
proposing to distribute their securities through such underwriting) enter into
an underwriting agreement with the representative ("Underwriter's
Representative") of the underwriter or underwriters selected for such
underwriting by the Holders of a majority of the Registrable Securities being
registered by the Initiating Holders and agreed to by the Company.
7.5.4 Marketing Limitation in Demand Registration.
In the event the Underwriter's Representative advises
the Initiating Holders in writing that market factors (including, without
limitation, the aggregate number of shares of Common Stock requested to be
Registered, the general condition of the market, and the status of the persons
proposing to sell securities pursuant to the Registration) require a limitation
of the number of shares to be underwritten, then (i) first the Common Stock
(other than Registrable Securities) held by officers or directors of the
Company, (ii) next the securities other than Registrable Securities, and (iii)
last the securities requested to be registered by the Company, shall be excluded
from such Registration to the extent required by such limitation. If a
limitation of the number of shares is still required, the Initiating Holders
shall so advise all Holders and the number of shares of Registrable Securities
that may be included in the Registration and underwriting shall be allocated
among all Holders in proportion, as nearly as practicable, to the respective
amounts of Registrable Securities entitled to inclusion in such Registration
held by such Holders at the time of filing the Registration Statement. No
Registrable Securities or other securities excluded from the underwriting by
reason of this Section 7.5.4 shall be included in such Registration Statement.
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7.5.5 Right of Withdrawal in Demand Registration.
If any Holder of Registrable Securities, or a holder
of other securities entitled (upon request) to be included in such Registration,
disapproves of the terms of the underwriting, such person may elect to withdraw
therefrom by written notice to the Company, the underwriter and the Initiating
Holders delivered at least seven days prior to the effective date of the
Registration Statement. The securities so withdrawn shall also be withdrawn from
the Registration Statement.
7.6 Blue Sky in Demand Registration.
In the event of any Registration pursuant to Section 7,
the Company will exercise its best efforts to Register and qualify the
securities covered by the Registration Statement under such other securities or
Blue Sky laws of such jurisdictions as shall be reasonably appropriate for the
distribution of such securities; provided, however, that (i) the Company shall
not be required to qualify to do business or to file a general consent to
service of process in any such states or jurisdictions, and (ii) notwithstanding
anything in this Agreement to the contrary, in the event any jurisdiction in
which the securities shall be qualified imposes a non-waivable requirement that
expenses incurred in connection with the qualification of the securities be
borne by selling shareholders, such expenses shall be payable pro rata by
selling shareholders.
8. Piggyback Registration.
8.1 Notice of Piggyback Registration and Inclusion of Registrable
Securities.
Subject to the terms of this Agreement, in the event the
Company decides to Register any of its Common Stock (either for its own account
or the account of a security holder or holders exercising their respective
demand registration rights, other than the shelf registration required pursuant
to the terms of the Agreement and Plan of Reorganization providing for the
Seeker Acquisition) on a form that would be suitable for a registration
involving solely Registrable Securities, the Company will: (i) promptly give
each Holder written notice thereof (which shall include a list of the
jurisdictions in which the Company intends to attempt to qualify such securities
under the applicable Blue Sky or other state securities laws) and (ii) include
in such Registration (and any related qualification under Blue Sky laws or other
compliance), and in any underwriting involved therein, all the Registrable
Securities specified in a written request delivered to the Company by any Holder
within 20 days after delivery of such written notice from the Company.
8.2 Underwriting in Piggyback Registration.
8.2.1 Notice of Underwriting in Piggyback Registration.
If the Registration of which the Company gives notice
is for a Registered public offering involving an underwriting, the Company shall
so advise the Holders as a part of the written notice given pursuant to Section
8.1. In such event, the right of any
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Holder to Registration shall be conditioned upon such underwriting and the
inclusion of such Holder's Registrable Securities in such underwriting to the
extent provided in this Section 8. All Holders proposing to distribute their
securities through such underwriting shall (together with the Company and the
other holders distributing their securities through such underwriting) enter
into an underwriting agreement with the Underwriter's Representative for such
offering. The Holders shall have no right to participate in the selection of the
underwriters for an offering pursuant to this Section 8.
8.2.2 Marketing Limitation in Piggyback Registration.
In the event the Underwriter's Representative advises
the Holders seeking registration of Registrable Securities pursuant to Section 8
in writing that market factors (including, without limitation, the aggregate
number of shares of Common Stock requested to be Registered, the general
condition of the market, and the status of the persons proposing to sell
securities pursuant to the Registration) require a limitation of the number of
shares to be underwritten, the Underwriter's Representative (subject to the
allocation priority set forth in Section 8.2.3) may:
(a) in the case of the Company's initial Registered
public offering, limit the number of shares of Registrable Securities to be
included in such registration and underwriting to not less than fifteen percent
(15%) of the securities included in such Registration (based on aggregate market
values); and
(b) in the case of any Registered public offering
subsequent to the initial public offering, limit the number of shares of
Registrable Securities to be included in such Registration and underwriting to
not less than thirty percent (30%) of the securities included in such
Registration (based on aggregate market values).
8.2.3 Allocation of Shares in Piggyback Registration.
In the event that the Underwriter's Representative
limits the number of shares to be included in a Registration pursuant to Section
8.2.2, the number of shares to be included in such Registration shall be
allocated (subject to Section 8.2.2) in the following manner: The shares (other
than Registrable Securities) held by officers or directors of the Company shall
be excluded from such Registration and underwriting to the extent required by
such limitation. If a limitation of the number of shares is still required after
such exclusion, the number of shares that may be included in the Registration
and underwriting by selling shareholders shall be allocated among all other
Holders thereof, in proportion, as nearly as practicable, to the respective
amounts of securities (including Registrable Securities) which such Holders
would otherwise be entitled to include in such Registration. No Registrable
Securities or other securities excluded from the underwriting by reason of this
Section 8.2.3 shall be included in the Registration Statement.
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8.2.4 Withdrawal in Piggyback Registration.
If any Holder disapproves of the terms of any such
underwriting, such person may elect to withdraw therefrom by written notice to
the Company and the underwriter delivered at least seven days prior to the
effective date of the Registration Statement. Any Registrable Securities or
other securities excluded or withdrawn from such underwriting shall be withdrawn
from such Registration.
8.3 Blue Sky in Piggyback Registration.
In the event of any Registration of Registrable Securities
pursuant to Section 8, the Company will exercise its best efforts to Register
and qualify the securities covered by the Registration Statement under such
other securities or Blue Sky laws of such jurisdictions (not exceeding 20 unless
otherwise agreed to by the Company) as shall be reasonably appropriate for the
distribution of such securities; provided, however, that (i) the Company shall
not be required to qualify to do business or to file a general consent to
service of process in any such states or jurisdictions, and (ii) notwithstanding
anything in this Agreement to the contrary, in the event any jurisdiction in
which the securities shall be qualified imposes a non-waivable requirement that
expenses incurred in connection with the qualification of the securities be
borne by selling shareholders, such expenses shall be payable pro rata by
selling shareholders.
9. Expenses of Registration.
All Registration Expenses incurred in connection with three
Registrations pursuant to Section 7 and unlimited Registrations pursuant to
Sections 7.3 and 8, shall be borne by the Company. All Registration Expenses
incurred in connection with any other registration, qualification, or
compliance, shall be apportioned among the Holders and other holders of the
securities so registered on the basis of the number of shares so registered.
Notwithstanding the above, the Company shall not be required to pay for any
expenses of any registration proceeding begun pursuant to Section 7 if the
registration request is subsequently withdrawn at the request of the Holders of
a majority of the Registrable Securities to be registered (which Holders shall
bear such expenses), unless the Holders of a majority of the Registrable
Securities agree to forfeit their right to one demand registration pursuant to
Section 7; provided further, however, that if at the time of such withdrawal,
the Holders have learned of a Material Adverse Event with respect to the
condition, business, or prospects of the Company not known to the Holders at the
time of their request, then the Holders shall not be required to pay any of such
expenses and shall retain their rights pursuant to Section 7. All Selling
Expenses shall be borne by the holders of the securities Registered pro rata on
the basis of the number of shares Registered.
10. Termination of Registration Rights.
The rights to cause the Company to register securities granted
under Sections 7 and 8 of this Agreement shall terminate, with respect to each
Holder, on the earlier of (i) the date five years after the closing date of the
Company's initial public offering and (ii) upon such
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Holder holding less than 1% of the outstanding Registrable Securities (or, if
less, one-half of the Registrable Securities acquired by such Holder from the
Company).
11. Registration Procedures and Obligations.
Whenever required under this Agreement to effect the registration
of any Registrable Securities, the Company shall, as expeditiously as reasonably
possible:
(a) Prepare and file with the Commission a Registration Statement
with respect to such Registrable Securities and use its best efforts to cause
such Registration Statement to become effective, and, upon the request of the
Holders of a majority of the Registrable Securities registered thereunder, keep
such Registration Statement effective for up to one hundred twenty (120) days.
(b) Prepare and file with the Commission such amendments and
supplements to such Registration Statement and the prospectus used in connection
with such Registration Statement as may be necessary to comply with the
provisions of the Securities Act with respect to the disposition of all
securities covered by such Registration Statement.
(c) Furnish to the Holders such numbers of copies of a
prospectus, including a preliminary prospectus, in conformity with the
requirements of the Securities Act, and such other documents as they may
reasonably request in order to facilitate the disposition of Registrable
Securities owned by them.
(d) Use its best efforts to register and qualify the securities
covered by such Registration Statement under such other securities or Blue Sky
laws of such jurisdictions as shall be reasonably requested by the Holders,
provided that the Company shall not be required in connection therewith or as a
condition thereto to qualify to do business or to file a general consent to
service of process in any such states or jurisdictions.
(e) In the event of any underwritten public offering, enter into
and perform its obligations under an underwriting agreement, in usual and
customary form, with the managing underwriter of such offering. Each Holder
participating in such underwriting shall also enter into and perform its
obligations under such an agreement.
(f) Notify each Holder of Registrable Securities covered by such
Registration Statement at any time when a prospectus relating thereto is
required to be delivered under the Securities Act of the happening of any event
as a result of which the prospectus included in such Registration Statement, as
then in effect, includes an untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances then
existing.
(g) Provide a transfer agent and registrar for all Registrable
Securities registered pursuant to such Registration Statement and a CUSIP number
for all such Registrable Securities, in each case not later than the effective
date of such Registration.
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(h) Furnish, at the request of any Holder requesting registration
of Registrable Securities pursuant to this Agreement, on the date that such
Registrable Securities are delivered for sale in connection with a Registration
pursuant to this Agreement, (i) an opinion, dated such date, of the counsel
representing the Company for the purposes of such Registration, in form and
substance as is customarily given to underwriters in an underwritten public
offering, and (ii) a letter dated such date, from the independent certified
public accountants of the Company, in form and substance as is customarily given
by independent certified public accountants to underwriters in an underwritten
public offering, addressed to the underwriters.
12. Information Furnished by Holder.
It shall be a condition precedent of the Company's obligations
under this Agreement that each Holder of Registrable Securities included in any
Registration furnish to the Company such information regarding such Holder and
the distribution proposed by such Holder or Holders as the Company may
reasonably request.
13. Indemnification.
13.1 Company's Indemnification of Holders.
To the extent permitted by law, the Company will indemnify
each Holder, each of its officers, directors, and constituent partners, legal
counsel for the Holders, and each person controlling such Holder, with respect
to which Registration, qualification, or compliance of Registrable Securities
has been effected pursuant to this Agreement, and each underwriter, if any, and
each person who controls any underwriter against all claims, losses, damages, or
liabilities (or actions in respect thereof) to the extent such claims, losses,
damages, or liabilities arise out of or are based upon any untrue statement (or
alleged untrue statement) of a material fact contained in any prospectus or
other document (including any related Registration Statement) incident to any
such Registration, qualification, or compliance, or are based on any omission
(or alleged omission) to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, or any
violation by the Company of any rule or regulation promulgated under the
Securities Act applicable to the Company and relating to action or inaction
required of the Company in connection with any such Registration, qualification,
or compliance; and the Company will reimburse each such Holder, each such
underwriter, and each person who controls any such Holder or underwriter, for
any legal and any other expenses reasonably incurred in connection with
investigating or defending any such claim, loss, damage, liability, or action;
provided, however, that the indemnity contained in this Section 13.1 shall not
apply to amounts paid in settlement of any such claim, loss, damage, liability,
or action if settlement is effected without the consent of the Company (which
consent shall not unreasonably be withheld); and provided, further, that the
Company will not be liable in any such case to the extent that any such claim,
loss, damage, liability, or expense arises out of or is based upon any untrue
statement or omission based upon written information furnished to the Company by
such Holder, underwriter, or controlling person and stated to be for use in
connection with the offering of securities of the Company.
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13.2 Holder's Indemnification of Company.
To the extent permitted by law, each Holder will, if
Registrable Securities held by such Holder are included in the securities as to
which such Registration, qualification or, compliance is being effected pursuant
to this Agreement, indemnify the Company, each of its directors and officers,
each legal counsel and independent accountant of the Company, each underwriter,
if any, of the Company's securities covered by such a Registration Statement,
each person who controls the Company or such underwriter within the meaning of
the Securities Act, and each other such Holder, each of its officers, directors,
and constituent partners, and each person controlling such other Holder, against
all claims, losses, damages, and liabilities (or actions in respect thereof)
arising out of or based upon any untrue statement (or alleged untrue statement)
of a material fact contained in any such Registration Statement, prospectus,
offering circular, or other document, or any omission (or alleged omission) to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, or any violation by such Holder of any
rule or regulation promulgated under the Securities Act applicable to such
Holder and relating to action or inaction required of such Holder in connection
with any such Registration, qualification, or compliance, and will reimburse the
Company, such Holders, such directors, officers, partners, persons, law and
accounting firms, underwriters or control persons for any legal and any other
expenses reasonably incurred in connection with investigating or defending any
such claim, loss, damage, liability, or action, in each case to the extent, but
in each case only to the extent, that such untrue statement (or alleged untrue
statement) or omission (or alleged omission) is made in such Registration
Statement, prospectus, offering circular, or other document in reliance upon and
in conformity with written information furnished to the Company by such Holder
and stated to be specifically for use in connection with the offering of
securities of the Company, provided, however, that the indemnity contained in
this Section 13.2 shall not apply to amounts paid in settlement of any such
claim, loss, damage, liability or action if settlement is effected without the
consent of such Holder (which consent shall not be unreasonably withheld) and
provided, further, that each Holder's liability under this Section 13.2 shall
not exceed such Holder's proceeds from the offering of securities made in
connection with such Registration.
13.3 Indemnification Procedure.
Promptly after receipt by an indemnified party under this
Section 13 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against an indemnifying party
under this Section 13, notify the indemnifying party in writing of the
commencement thereof and generally summarize such action. The indemnifying party
shall have the right to participate in and to assume the defense of such claim;
provided, however, that the indemnifying party shall be entitled to select
counsel for the defense of such claim with the approval of any parties entitled
to indemnification, which approval shall not be unreasonably withheld; provided
further, however, that if either party reasonably determines that there may be a
conflict between the position of the Company and the Investors in conducting the
defense of such action, suit, or proceeding by reason of recognized claims for
indemnity under this Section 13, then counsel for such party shall be entitled
to conduct the defense to the extent reasonably determined by such counsel to be
necessary to
11
15
protect the interest of such party. The failure to notify an indemnifying party
promptly of the commencement of any such action, if prejudicial to the ability
of the indemnifying party to defend such action, shall relieve such indemnifying
party, to the extent so prejudiced, of any liability to the indemnified party
under this Section 13, but the omission to so notify the indemnifying party will
not relieve such party of any liability that such party may have to any
indemnified party otherwise other than under this Section 13.
13.4 Contribution.
If the indemnification provided for in this Section 13 is
held by a court of competent jurisdiction to be unavailable to an indemnified
party with respect to any loss, liability, claim, damage, or expense referred to
therein, then the indemnifying party, in lieu of indemnifying such indemnified
party hereunder, shall contribute to the amount paid or payable by such
indemnified party as a result of such loss, liability, claim, damage, or expense
in such proportion as is appropriate to reflect the relative fault of the
indemnifying party on the one hand and of the indemnified party on the other in
connection with the statements or omissions that resulted in such loss,
liability, claim, damage, or expense as well as any other relevant equitable
considerations. The relative fault of the indemnifying party and of the
indemnified party shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission to state a material fact relates to information supplied by the
indemnifying party or by the indemnified party and the parties' relative intent,
knowledge, access to information, and opportunity to correct or prevent such
statement or omission.
14. Limitations on Registration Rights Granted to Other Securities.
From and after the date of this Agreement, the Company shall not
enter into any agreement with any holder or prospective holder of any securities
of the Company providing for the granting to such holder of any information or
Registration rights, except that, with the consent of (i) the Holders of a
majority of the aggregate of the Convertible Securities and Registrable
Securities then outstanding and (ii) if such holders are to receive piggyback
registration rights superior to or on a parity with the holders of Series E
Preferred Stock, with the consent of the holders of a majority of the aggregate
of the Series E Preferred Stock (and Registrable Securities issued upon
conversion thereof) then outstanding, additional holders may be added as parties
to this Agreement with regard to any or all securities of the Company held by
them. Any such additional parties shall execute a counterpart of this Agreement,
and upon execution by such additional parties and by the Company, shall be
considered an Investor for all purposes of this Agreement. The additional
parties and the additional Registrable Securities shall be identified in an
amendment to Schedule A hereto.
15. Transfer of Rights.
The rights to information under Sections 2, 3, and 4 and the
right to cause the Company to Register securities granted by the Company to the
Investors under this Agreement may be assigned by any Holder to a transferee or
assignee of any Convertible Securities or Registrable Securities not sold to the
public acquiring at least 100,000 shares of such Holder's Registrable Securities
(equitably adjusted for any stock splits, subdivisions, stock dividends,
12
16
changes, combinations or the like); provided, however, that (i) the shares of
Convertible Securities or Registrable Securities acquired by said transferee
must constitute at least 20% of Holder's aggregate of Convertible Securities and
Registrable Securities immediately prior to the transfer, (ii) the Company must
receive written notice prior to the time of said transfer, stating the name and
address of said transferee or assignee and identifying the securities with
respect to which such information and Registration rights are being assigned,
(iii) such transferee or assignee must agree to be bound by the provisions of
this Agreement, and (iv) the transferee or assignee of such be a person deemed
by the Board of Directors of its best judgment, to be a competitor or potential
competitor of the Company. Notwithstanding the limitation set forth in the
foregoing sentence respecting the minimum number of shares which must be
transferred, any Holder which is a partnership may transfer such Holder's
Registration rights to such Holder's constituent partners without restriction as
to the number or percentage of shares acquired by any such constituent partner.
16. Market Stand-Off. [Terminated. No longer applicable.]
17. Conversion of Preferred Stock.
The Registration rights of the Holders of the shares set forth in
this Agreement are conditioned upon the conversion of the shares with respect to
which Registration is sought into Common Stock immediately prior to the closing
of the offering of Common Stock effected pursuant to the Registration Statement.
18. Reports Under Securities Exchange Act of 1934.
With a view to making available to the Holders the benefits of
Rule 144 promulgated under the Securities Act and any other rule or regulation
of the Commission that may at any time permit a Holder to sell securities of the
Company to the public without Registration or pursuant to a registration on Form
S-3, the Company agrees to:
(a) make and keep public information available, as those terms
are understood and defined in Rule 144, at all times after ninety (90) days
after the effective date of the first
13
17
Registration Statement filed by the Company for the offering of its securities
to the general public;
(b) take such action, including the voluntary registration of its
Common Stock under Section 12 of the Securities Exchange Act of 1934, as amended
(the "1934 Act"), as is necessary to enable the Holders to utilize Form S-3 for
the sale of their Registrable Securities, such action to be taken as soon as
practicable after the end of the fiscal year in which the first Registration
Statement filed by the Company for the offering of its securities to the general
public is declared effective;
(c) file with the Commission in a timely manner all reports and
other documents required of the Company under the Securities Act and the 1934
Act; and
(d) furnish to any Holder, so long as the Holder owns any
Registrable Securities, forthwith upon request (i) a written statement by the
Company that it has complied with the reporting requirements of Rule 144 (at any
time after ninety (90) days after the effective date of the first Registration
Statement filed by the Company), the Securities Act, and the 1934 Act (at any
time after it has become subject to such reporting requirements), or that it
qualifies as a registrant whose securities may be resold pursuant to Form S-3
(at any time after it so qualifies), (ii) a copy of the most recent annual or
quarterly report of the Company and such other reports and documents so filed by
the Company, and (iii) such other information as may be reasonably requested in
availing any Holder of any rule or regulation of the Commission which permits
the selling of any such securities without Registration or pursuant to such
form.
19. Miscellaneous.
19.1 Entire Agreement; Successors and Assigns.
This Agreement constitutes the entire contract between the
Company and the Investors relative to the subject matter hereof. Any previous
agreement between the Company and any Investor concerning Registration rights,
including the Previous Agreement, is superseded by this Agreement. Subject to
the exceptions specifically set forth in this Agreement, the terms and
conditions of this Agreement shall inure to the benefit of and be binding upon
the respective executors, administrators, heirs, successor, and assigns of the
parties. Investors who are parties to the Previous Agreement are waiving rights
of first refusal; with respect to shares of Series E Preferred Stock that it is
not acquiring, each investor who was a signatory to the Previous Agreement
waives the right of first refusal with respect to the shares of Series E
Preferred Stock it has elected not to purchase. In addition, the Investors agree
to the grant of Registration rights with respect to the shares of Series E
Preferred Stock or other securities issuable upon exercise of certain warrants
issued to Comdisco, Inc., Imperial Bank, and the American Express Company, and
the Common Stock issuable upon conversion thereof.
14
18
19.2 Governing Law.
This Agreement shall be governed by, and construed in
accordance with, the laws of the State of California excluding those laws that
direct the application of the laws of another jurisdiction.
19.3 Counterparts.
This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
19.4 Headings.
The headings of the Sections of this Agreement are for
convenience and shall not by themselves determine the interpretation of this
Agreement.
19.5 Notices.
Any notice required or permitted hereunder shall be given
in writing and shall be conclusively deemed effectively given upon personal
delivery, or five days after deposit in the United States mail, by registered or
certified mail, postage prepaid, addressed (i) if to the Company, as set forth
below the Company's name on the signature page of this Agreement, and (ii) if to
an Investor, at such Investor's address as set forth on Schedule A or Schedule
B, or at such other address as the Company or such Investor may designate by ten
(10) days' advance written notice to the Investors or the Company, respectively.
19.6 Amendment of Agreement.
Any provision of this Agreement may be amended only by a
written instrument signed by the Company and by persons holding at least sixty
percent (60%) of the Registrable Securities as defined in Section 1 of this
Agreement.
19.7 Severability.
In case any provision of this Agreement shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
15
19
IN WITNESS WHEREOF, the parties hereto have executed this Third Amended and
Restated Information and Registration Rights Agreement as of the day and year
first above written.
COMPANY: CONCUR TECHNOLOGIES, INC.
By: /s/ S. ▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------
S. ▇▇▇▇▇▇ ▇▇▇▇▇, President
Address: ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
[SIGNATURE PAGES OF INVESTORS FOLLOW]
20
IN WITNESS WHEREOF, the parties hereto have executed this Third Amended and
Restated Information and Registration Rights Agreement as of the day and year
first above written.
COMPANY: CONCUR TECHNOLOGIES, INC.
By:
-------------------------------
S. ▇▇▇▇▇▇ ▇▇▇▇▇, President
Address: ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
INVESTORS: RRE INVESTORS, L.P.
By:
--------------------------------
RRE Investors II, LLC,
its General Partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Member General Partner
RRE INVESTORS FUND, L.P.
By: RRE Investors Fund GP, L.P.,
its General Partner
By: RRE Investors Fund LDC,
its General Partner
By: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Member General Partner
21
IN WITNESS WHEREOF, the parties hereto have executed this Third Amended and
Restated Information and Registration Rights Agreement as of the day and year
first above written.
COMPANY: CONCUR TECHNOLOGIES, INC.
By: /s/ S. ▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------------
S. ▇▇▇▇▇▇ ▇▇▇▇▇, President
Address: ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
INVESTOR: AMERICAN EXPRESS TRAVEL RELATED
SERVICES COMPANY, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: President
22
IN WITNESS WHEREOF, the parties hereto have executed this Third Amended and
Restated Information and Registration Rights Agreement as of the day and year
first above written.
COMPANY: CONCUR TECHNOLOGIES, INC.
By: /s/ S. ▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------------
S. ▇▇▇▇▇▇ ▇▇▇▇▇, President
Address: ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
INVESTORS: U.S.V.P. ENTREPRENEUR PARTNERS II, L.P.
A Delaware Limited Partnership
U.S. VENTURE PARTNERS IV, L.P.
SECOND VENTURES II, L.P.
By: Presidio Management Group IV, L.P.
Their General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------
Title:
--------------------------------
Address: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
23
IN WITNESS WHEREOF, the parties hereto have executed this Third Amended and
Restated Information and Registration Rights Agreement as of the day and year
first above written.
COMPANY: CONCUR TECHNOLOGIES, INC.
By:
--------------------------------
S. ▇▇▇▇▇▇ ▇▇▇▇▇, President
INVESTOR: INSTITUTIONAL VENTURE
PARTNERS VII, L.P.
by its General Partner
Institutional Venture Management VII, L.P.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
--------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, A General Partner
Address: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
INVESTOR: IVP FOUNDERS FUND I, L.P.
by its General Partner
Institutional Venture Management VI, L.P.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
--------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, A General Partner
Address: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
INVESTOR: INSTITUTIONAL VENTURE MANAGEMENT
VII, L.P.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
--------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, A General Partner
Address: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
24
IN WITNESS WHEREOF, the parties hereto have executed this Third Amended and
Restated Information and Registration Rights Agreement as of the day and year
first above written.
COMPANY: CONCUR TECHNOLOGIES, INC.
By:
--------------------------------
S. ▇▇▇▇▇▇ ▇▇▇▇▇, President
Address: ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
INVESTOR: BRENTWOOD ASSOCIATES VI, L.P.
By: Brentwood VI Ventures, L.P.
Its General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------------
General Partner
Address: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
25
IN WITNESS WHEREOF, the parties hereto have executed this Third Amended and
Restated Information and Registration Rights Agreement as of the day and year
first above written.
COMPANY: CONCUR TECHNOLOGIES, INC.
By:
--------------------------------
S. ▇▇▇▇▇▇ ▇▇▇▇▇, President
Address: ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
INVESTORS: ▇▇▇▇▇▇▇▇ ASSOCIATES FUND III
A California Limited Partnership
▇▇▇▇▇▇▇▇ VIII
A California Limited Partnership
By: ▇▇▇▇▇▇▇▇ VIII MANAGEMENT, L.L.C.
A Delaware Limited Liability Company
Their General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------------------
Title: Managing Member
Address: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
26
IN WITNESS WHEREOF, the parties hereto have executed this Third Amended and
Restated Information and Registration Rights Agreement as of the day and year
first above written.
COMPANY: CONCUR TECHNOLOGIES, INC.
By: /s/ S. ▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------------
S. ▇▇▇▇▇▇ ▇▇▇▇▇, President
Address: ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
INVESTOR: COMDISCO, INC.
By:
--------------------------------
Title: ▇▇▇▇▇ ▇. ▇▇▇▇, President
Comdisco Ventures Division
Address: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
27
IN WITNESS WHEREOF, the parties hereto have executed this Third Amended and
Restated Information and Registration Rights Agreement as of the day and year
first above written.
COMPANY: CONCUR TECHNOLOGIES, INC.
By: /s/ S. ▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------------
S. ▇▇▇▇▇▇ ▇▇▇▇▇, President
Address: ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
INVESTOR: CAMBRIDGE TECHNOLOGY CAPITAL
FUND I, L.P.
By: Cambridge Technology GPLP, L.P.
By: Cambridge Technology CGP, Inc.
By:
--------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Managing Director
Address: ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
28
IN WITNESS WHEREOF, the parties hereto have executed this Third Amended and
Restated Information and Registration Rights Agreement.
COMPANY: CONCUR TECHNOLOGIES, INC.
By:
--------------------------------
S. ▇▇▇▇▇▇ ▇▇▇▇▇, President
Address: ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
INVESTOR: BRENTWOOD AFFILIATES FUND II, L.P.
By: Brentwood VII Ventures, LLC
Its General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------------
Managing Member
Address: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
1. /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------------
(Signature)
▇▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------------
(Print Name)
2. /s/ ▇▇▇▇ ▇▇▇▇
--------------------------------
(Signature)
▇▇▇▇ ▇▇▇▇
--------------------------------
(Print Name)
3. /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------------------
(Signature)
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------------------
(Print Name)
29
IN WITNESS WHEREOF, the parties hereto have executed this Third Amended and
Restated Information and Registration Rights Agreement.
COMPANY: CONCUR TECHNOLOGIES, INC.
By: /s/ S. ▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------------
S. ▇▇▇▇▇▇ ▇▇▇▇▇, President
Address: ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
INVESTORS:
/s/ S. ▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------------
S. ▇▇▇▇▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
/s/ ▇. ▇▇▇▇▇▇
--------------------------------
▇▇▇ ▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------------
▇▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇ ▇▇▇▇▇▇
--------------------------------
▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
30
IN WITNESS WHEREOF, the parties hereto have executed this Third Amended and
Restated Information and Registration Rights Agreement.
COMPANY: CONCUR TECHNOLOGIES, INC.
By:
--------------------------------
S. ▇▇▇▇▇▇ ▇▇▇▇▇, President
INVESTOR: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Address: c/o Brentwood Venture Capital
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
INVESTOR: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Address: c/o Fenwick & West LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
31
IN WITNESS WHEREOF, the parties hereto have executed this Third Amended and
Restated Information and Registration Rights Agreement.
COMPANY: CONCUR TECHNOLOGIES, INC.
By:
--------------------------------
S. ▇▇▇▇▇▇ ▇▇▇▇▇, President
INVESTORS: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------
Advanced Technology Ventures
--------------------------------
By: ▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------
32
IN WITNESS WHEREOF, the parties hereto have executed this Third Amended and
Restated Information and Registration Rights Agreement.
COMPANY: CONCUR TECHNOLOGIES, INC.
By:
--------------------------------
S. ▇▇▇▇▇▇ ▇▇▇▇▇, President
INVESTORS: Norwest Venture Partners VII, L.P.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
--------------------------------
33
IN WITNESS WHEREOF, the parties hereto have executed this Third Amended and
Restated Information and Registration Rights Agreement.
COMPANY: CONCUR TECHNOLOGIES, INC.
By:
--------------------------------
S. ▇▇▇▇▇▇ ▇▇▇▇▇, President
▇▇▇▇▇▇▇▇ Family Trust
INVESTORS: By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Irrevocable Trust
-----------------------------------
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------
34
IN WITNESS WHEREOF, the parties hereto have executed this Third Amended and
Restated Information and Registration Rights Agreement.
COMPANY: CONCUR TECHNOLOGIES, INC.
By:
--------------------------------
S. ▇▇▇▇▇▇ ▇▇▇▇▇, President
INVESTORS:
INFORMATION TECHNOLOGY VENTURES, L.P. ITV AFFILIATES FUND, L.P.,
a California limited partnership a California limited partnership
By: ITV MANAGEMENT, LLC By: ITV MANAGEMENT, LLC
a California limited liability company a California limited liability company
Title: General Partner Title: General Partner
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
-------------------- ----------------------
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Principal Member Title: Principal Member
35
IN WITNESS WHEREOF, the parties hereto have executed this Third Amended and
Restated Information and Registration Rights Agreement as of the day and year
first above written.
COMPANY: CONCUR TECHNOLOGIES, INC.
By:
--------------------------------
S. ▇▇▇▇▇▇ ▇▇▇▇▇, President
Address: ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
INVESTORS: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Shareholder
By: /s/ ▇. ▇▇▇▇▇▇▇▇
--------------------------------
[SIGNATURE PAGES OF INVESTORS FOLLOW]
36
IN WITNESS WHEREOF, the parties hereto have executed this Third Amended and
Restated Information and Registration Rights Agreement as of the day and year
first above written.
COMPANY: CONCUR TECHNOLOGIES, INC.
By:
--------------------------------
S. ▇▇▇▇▇▇ ▇▇▇▇▇, President
Address: ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
INVESTORS: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------
--------------------------------
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------
[SIGNATURE PAGES OF INVESTORS FOLLOW]
37
IN WITNESS WHEREOF, the parties hereto have executed this Third Amended and
Restated Information and Registration Rights Agreement as of the day and year
first above written.
COMPANY: CONCUR TECHNOLOGIES, INC.
By:
--------------------------------
S. ▇▇▇▇▇▇ ▇▇▇▇▇, President
Address: ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
INVESTORS: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------
--------------------------------
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------
[SIGNATURE PAGES OF INVESTORS FOLLOW]
38
IN WITNESS WHEREOF, the parties hereto have executed this Third Amended and
Restated Information and Registration Rights Agreement as of the day and year
first above written.
COMPANY: CONCUR TECHNOLOGIES, INC.
By:
--------------------------------
S. ▇▇▇▇▇▇ ▇▇▇▇▇, President
Address: ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
INVESTORS: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------
--------------------------------
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------
[SIGNATURE PAGES OF INVESTORS FOLLOW]
39
IN WITNESS WHEREOF, the parties hereto have executed this Third Amended and
Restated Information and Registration Rights Agreement as of the day and year
first above written.
COMPANY: CONCUR TECHNOLOGIES, INC.
By:
--------------------------------
S. ▇▇▇▇▇▇ ▇▇▇▇▇, President
Address: ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
INVESTORS: ▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------
--------------------------------
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------
[SIGNATURE PAGES OF INVESTORS FOLLOW]
40
IN WITNESS WHEREOF, the parties hereto have executed this Third Amended and
Restated Information and Registration Rights Agreement as of the day and year
first above written.
COMPANY: CONCUR TECHNOLOGIES, INC.
By:
--------------------------------
S. ▇▇▇▇▇▇ ▇▇▇▇▇, President
Address: ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
INVESTORS: Tadish ▇▇▇▇▇▇
--------------------------------
--------------------------------
By: /s/ Tadish ▇▇▇▇▇▇
--------------------------------
[SIGNATURE PAGES OF INVESTORS FOLLOW]
41
IN WITNESS WHEREOF, the parties hereto have executed this Third Amended and
Restated Information and Registration Rights Agreement as of the day and year
first above written.
COMPANY: CONCUR TECHNOLOGIES, INC.
By:
--------------------------------
S. ▇▇▇▇▇▇ ▇▇▇▇▇, President
Address: ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
INVESTORS: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
--------------------------------
Co Founder Seeker Stockholder
--------------------------------
By:
--------------------------------
[SIGNATURE PAGES OF INVESTORS FOLLOW]
42
IN WITNESS WHEREOF, the parties hereto have executed this Third Amended and
Restated Information and Registration Rights Agreement as of the day and year
first above written.
COMPANY: CONCUR TECHNOLOGIES, INC.
By:
--------------------------------
S. ▇▇▇▇▇▇ ▇▇▇▇▇, President
Address: ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
INVESTORS: ▇▇▇▇▇ ▇▇▇▇, Trustee of ▇▇▇▇▇ ▇▇▇▇ Revocable Trust
-------------------------------------------------
-------------------------------------------------
By: /s/ ▇▇▇▇▇ ▇▇▇▇
--------------------------------
[SIGNATURE PAGES OF INVESTORS FOLLOW]
43
SCHEDULE A
INVESTORS WHO ACQUIRE SHARES IN THE SEEKER ACQUISITION
-----------------------------------------------------------------------------------------
Number of Shares of
Name Concur Common Stock
---- -------------------
Advanced Technology Ventures IV, L.P. 585,777
-----------------------------------------------------------------------------------------
▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ 77,933
-----------------------------------------------------------------------------------------
Brentwood Affiliates Fund, L.P. 5,586
-----------------------------------------------------------------------------------------
Brentwood Associates VIII, L.P. 527,783
-----------------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ 36,144
-----------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Trustee of the ▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇ Irrevocable Trust 35,981
-----------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Trustee of the ▇▇▇▇▇▇▇▇ Family
Revocable Trust dated September 8, 1996 48,552
-----------------------------------------------------------------------------------------
Tadish ▇. ▇▇▇▇▇▇ 19,468
-----------------------------------------------------------------------------------------
▇▇▇▇▇ ▇▇▇▇▇ 11,188
-----------------------------------------------------------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇, Trustee of ▇▇▇▇▇ ▇. ▇▇▇▇ Revocable Trust 18,242
-----------------------------------------------------------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 36,755
-----------------------------------------------------------------------------------------
Information Technology Ventures, L.P. 570,559
-----------------------------------------------------------------------------------------
ITV Affiliates Fund, L.P. 15,217
-----------------------------------------------------------------------------------------
Norwest Venture Partners VII L.P. 468,229
-----------------------------------------------------------------------------------------
Platinum Venture Partners II, L.P. 81,215
-----------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 9,003
-----------------------------------------------------------------------------------------
Page 1
44
SCHEDULE A
INVESTORS WHO ACQUIRE SHARES IN THE SEEKER ACQUISITION
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 63,165
-----------------------------------------------------------------------------------------
▇▇▇ ▇▇▇▇▇▇▇▇ 45,314
-----------------------------------------------------------------------------------------
Page 2
45
SCHEDULE B
CONTINUING INVESTORS FROM THE PREVIOUS AGREEMENT
INVESTOR NAME & ADDRESS PREFERRED STOCK NUMBER OF SHARES
----------------------- --------------- ----------------
Brentwood Affiliates Fund II, L.P. Series E 170,632
Brentwood Associates VI, L.P. Series A 3,824,092
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ Series B 781,250
Building One, Suite 260 Series C 593,750
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ Series D 338,447
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Series E 9,678
c/o Brentwood Venture Capital
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Cambridge Technology Capital Fund I, L.P. Series E 161,290
▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Managing Director
▇▇▇▇ ▇▇▇▇ Series E 3,226
c/o Brentwood Venture Capital
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Comdisco, Inc. Series D 106,165
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ Series ▇ ▇▇,▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ California Series E 51,614
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Series C 175,975
c/o Portable Software Corporation Series E 9,678
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ Series E 6,425
c/o Portable Software Corporation
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
46
INVESTOR NAME & ADDRESS PREFERRED STOCK NUMBER OF SHARES
----------------------- --------------- ----------------
Institutional Venture Management VII, LP Series C 75,000
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ Series D 6,510
Building Two, Suite 290 Series E 3,605
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Institutional Venture Partners VII, LP Series C 4,750,000
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ Series D 307,584
Building Two, Suite 290 Series E 174,821
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
IVP Founders Fund I, L.P. Series C 75,000
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ Series D 11,392
Building Two, Suite 290 Series E 1,802
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ Series E ▇▇▇
▇/▇ ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇ Series E 6,452
c/o Portable Software Corporation
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ Associates Fund III Series C 156,250
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇ Series D 100,914
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ Series E 8,734
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ VIII Series C 2,968,750
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇ Series D 1,917,359
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ Series E 165,949
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Series E 3,226
c/o Brentwood Venture Capital
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Series E 6,613
▇/▇ ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Series E 3,226
47
INVESTOR NAME & ADDRESS PREFERRED STOCK NUMBER OF SHARES
----------------------- --------------- ----------------
c/o Fenwick & West LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Series E 4,839
▇/▇ ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
RRE Investors, L.P. Series E 1,040,218
RRE Investors Fund, L.P. Series E 572,685
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Second Ventures II, L.P. Series B 410,156
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇ Series C 65,625
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ Series D 41,999
The ▇▇▇▇▇▇▇▇ Revocable Trust Series C 31,250
dtd 2/10/95
c/o Brentwood Venture Capital
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇. ▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇ Series E 6,452
c/o Portable Software Corporation
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
S. ▇▇▇▇▇▇ ▇▇▇▇▇ Series C 161,326
c/o Portable Software Corporation Series E 9,678
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
USVP Entrepreneur Partners II, L.P. Series B 117,188
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇ Series C 18,750
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ Series D 12,000
U.S. Venture Partners IV, L.P. Series B 3,378,906
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇ Series C 540,625
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ Series D 345,987
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Series E 6,452
c/o Portable Software Corporation
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
American Express Travel Related Services Series E 1,612,903
Company, Inc.
48
INVESTOR NAME & ADDRESS PREFERRED STOCK NUMBER OF SHARES
----------------------- --------------- ----------------
American Express Tower Series E 1,612,903
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇