Exhibit 10.31
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STOCK PURCHASE AGREEMENT
This STOCK PURCHASE AGREEMENT (this "Agreement") is made and entered into
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as of February 22, 2000 by and between CONCUR TECHNOLOGIES, INC., a Delaware
corporation (the "Company") and the Investors listed in Exhibit A attached
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hereto, (each, an "Investor").
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W I T N E S S E T H:
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WHEREAS, the Company desires to sell to each Investor, and each Investor
desires to purchase from the Company, shares of the Company's Common Stock on
the terms and conditions set forth in this Agreement;
NOW, THEREFORE, THE PARTIES HEREBY AGREE AS FOLLOWS:
1. AGREEMENT TO PURCHASE AND SELL STOCK. Subject to the terms and
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conditions of this Agreement, the Company agrees to sell to each Investor at the
Closing, and each Investor agrees to purchase from the Company at the Closing,
the number of shares of the Company's Common Stock set forth beside such
Investor's name on Exhibit A, at a price per share equal to $23.279, which is
110% of the average closing price of the Company's Common Stock as reported on
the Nasdaq National Market for the ten trading days immediately preceding the
date hereof. The shares of Common Stock purchased and sold pursuant to this
Agreement will be collectively hereinafter referred to as the "Purchased
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Shares."
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2. CLOSING. The purchase and sale of the Purchased Shares will take place
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at the offices of the Company, ▇▇▇▇-▇▇▇▇▇ ▇▇. ▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, at 10:00
a.m. Pacific Standard Time, on March 10, 2000 or such later date following the
satisfaction or waiver of all of the conditions set forth in Sections 5 and 6
hereof or at such other time and place as the Company and the Investors mutually
agree upon (which time and place are referred to in this Agreement as the
"Closing"). At the Closing, the Company will deliver to each Investor a
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certificate representing the number of Purchased Shares that such Investor has
agreed to purchase hereunder against delivery to the Company by such Investor of
the full purchase price of such Purchased Shares, paid by (i) a check payable to
the Company's order, (ii) wire transfer of funds to the Company, or (iii) any
combination of the foregoing, all as set forth in Exhibit A.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company hereby
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represents and warrants to each Investor that the statements in the following
paragraphs of this Section 3 are all true and correct:
3.1 Organization, Good Standing and Qualification. The Company is a
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corporation duly organized, validly existing and in good standing under the laws
of the State of Delaware with all power and authority to own or lease all of its
properties and assets and conduct its business as currently conducted. The
Company is qualified to do business as a foreign
corporation in the States of Washington and California and in each other
jurisdiction where failure to be so qualified would have a material adverse
effect on its financial condition, business, prospects or operations.
3.2 Capitalization. Immediately prior to the Closing the
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capitalization of the Company will consist of the following:
(a) Preferred Stock. A total of 5,000,000 authorized shares of
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Preferred Stock, $0.001 par value per share (the "Preferred Stock"),
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undesignated as to series and none of which are issued and outstanding.
(b) Common Stock. A total of 60,000,000 authorized shares of
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Common Stock, $0.001 par value per share (the "Common Stock"), of which
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approximately 22,971,297 shares were issued and outstanding as of December 31,
1999 (subject to increase only by employee stock option exercises subsequent to
December 31, 1999.) All of the outstanding shares of Common Stock were duly and
validly issued (including, without limitation, issued in compliance with
applicable federal and state securities laws), fully paid, and non-assessable.
(c) Options, Warrants, Reserved Shares. Except for: (i) no more
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than 4,984,586 shares (subject to increase by grants of stock options subsequent
to December 31, 1999) of Common Stock issuable upon exercise of options
outstanding as of December 31, 1999, under the Company's 1994 Stock Option Plan,
the 1997 Stock Option Plan of 7Software, Inc., the Company's 1998 Equity
Incentive Plan, the Company's 1998 Directors Stock Option Plan, and the
Company's 1999 Stock Incentive Plan (collectively, the "Plans"), (ii) no more
than 3,547,153 shares of Common Stock reserved for future grants or sale as of
December 31, 1999 under the Plans, including shares reserved for future grant as
approved at the Company's Annual Meeting of Shareholders held on February 8,
2000 (subject to change due to termination of stock options and grants of stock
options subsequent to December 31, 1999), (iii) warrants to purchase 1,400,000
shares of Common Stock held by American Express Travel Related Services Company,
Inc., (iv) rights to purchase shares of Common Stock outstanding under the
Company's 1998 Employee Stock Purchase Plan, and (v) warrants to purchase shares
of Common Stock held by commercial credit facility providers as set forth in the
Company SEC Reports, there are not outstanding any options, warrants, rights
(including conversion or preemptive rights) or agreements for the purchase or
acquisition from the Company of any shares of its capital stock or any
securities convertible into or ultimately exchangeable or exercisable for any
shares of the Company's capital stock. Except as described in the Company SEC
Reports, the Company has not granted to any person any rights to require the
Company to register under the Securities Act securities held by such person.
3.3 Subsidiaries. Other than Seeker Software, Inc., Concur
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Technologies (UK) Ltd., Concur Technologies Pty. Limited, and 7Software, Inc.
(the "Subsidiaries"), the Company does not presently own or control, directly or
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indirectly, any interest in any other corporation, partnership, trust, joint
venture, association, or other entity. Each of the Subsidiaries is duly
organized, validly existing and in good standing under the laws of its
jurisdiction.
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3.4 Due Authorization; No Violation. All corporate action on the
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part of the Company and its officers, directors and stockholders necessary for
the authorization, execution and delivery of, and the performance of all
obligations of the Company under, this Agreement, and the authorization,
issuance, reservation for issuance and delivery of all of the Purchased Shares
being sold under this Agreement, has been taken or will be taken prior to the
Closing, and this Agreement constitutes a valid and legally binding obligation
of the Company, enforceable in accordance with its terms, except as may be
limited by (i) applicable bankruptcy, insolvency, reorganization or others laws
of general application relating to or affecting the enforcement of creditors'
rights generally and (ii) the effect of rules of law governing the availability
of equitable remedies. None of the execution, delivery or performance by the
Company of this Agreement nor the consummation by the Company of the
transactions contemplated hereby will (i) conflict with or result in a breach of
any provision of the Company's Certificate of Incorporation or the Company's
Bylaws, (ii) cause a default or an event which, with notice or lapse of time or
both, would be a default (or give rise to any right of termination, cancellation
or acceleration) under any of the terms, conditions or provisions of any
agreement, instrument or obligation to which the Company is a party, (iii)
violate any law, statute, rule or regulation or judgment, order, writ,
injunction or decree of any governmental authority, in each case applicable to
the Company or its properties or assets, or (iv) result in the creation of
imposition of any lien on any asset of the Company or its Subsidiaries.
3.5 Valid Issuance of Stock. The Purchased Shares, when issued, sold
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and delivered in accordance with the terms of this Agreement for the
consideration provided for herein, and the shares issuable upon exercise of the
stock purchase warrants issued pursuant to the Definitive Agreements (the
"Warrants") when issued, sold and delivered in accordance with the terms of the
Warrants, will be duly authorized and validly issued and outstanding, fully paid
and nonassessable and not subject to any preemptive or subscription rights (and
not issued in violation of any preemptive or subscription rights) and free and
clear of any mortgage, lien, pledge, charges, security interest, restriction on
voting or transfer (other than as provided herein) or other encumbrance. Upon
issuance of each Warrant, the Company shall reserve sufficient shares of Common
Stock to be issued upon its exercise.
3.6 SEC Filings; Financial Statements.
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(a) The Company has filed and made available to Investor all
forms, reports and other documents required to be filed by the Company with the
Securities Exchange Commission ("SEC") since December 31, 1998. All such
required forms, reports and other documents (including those that the Company
may file after the date hereof until the Closing) are referred to herein as the
"Company SEC Reports." The Company SEC Reports (i) were or will be filed on a
timely basis, (ii) were or will be prepared in compliance in all material
respects with the applicable requirements of the Securities Act of 1933, as
amended (the "Securities Act"), and the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), as the case may be, and the rules and regulations
of the SEC thereunder applicable to such Company SEC Reports, and (iii) did not
or will not at the time they were or are filed contain any untrue statement of a
material fact or omit to state a material fact required to be stated in such
Company SEC Reports or necessary in order to make the statements in such Company
SEC Reports, in the light of the circumstances under which they were made, not
misleading. No Subsidiary of the Company is required to file any forms, reports
or other documents with the SEC.
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(b) Each of the consolidated financial statements (including, in
each case, any related notes and schedules) contained or to be contained in the
Company SEC Reports (i) complied or will comply as to form in all material
respects with applicable accounting requirements and the published rules and
regulations of the SEC with respect thereto, (ii) were or will be prepared in
accordance with generally accepted accounting principles applied on a consistent
basis throughout the periods involved (except as may be indicated in the notes
to such financial statements or, in the case of unaudited statements, as
permitted by the SEC on Form 10-Q under the Exchange Act) and (iii) fairly
presented or will fairly present the consolidated financial position of the
Company and its Subsidiaries as of the dates and the consolidated results of its
operations and cash flows for the periods indicated, consistent with the books
and records of the Company and its Subsidiaries, except that the unaudited
interim financial statements were or are subject to normal and recurring year-
end adjustments which were not or are not expected to be material in amount. At
December 31, 1999, the Company had no liabilities, debts or obligations of any
nature, whether accrued, absolute, fixed, contingent, liquidated, unliquidated
or otherwise and whether due or to become due ("Liabilities") that were not
reflected or expressly reserved against on the unaudited consolidated balance
sheet as of December 31, 1999 filed by the Company in its Form 10-Q for the
fiscal quarter ended December 31, 1999. Since December 31, 1999, the Company has
not incurred any Liability other than Liabilities which (i) have been incurred
in the ordinary course of business consistent with past practice and (ii) have
not had and would not reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect (as defined below).
3.7 Governmental Consents. Except for filings referenced in Section
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3.12, no consent, approval, order or authorization of, or registration,
qualification, designation, declaration or filing with, any federal, state or
local governmental authority on the part of the Company is required in
connection with the consummation of the transactions contemplated by this
Agreement, except for filings under Regulation D promulgated under the
Securities Act and all other applicable securities laws as may be required in
connection with the transactions contemplated by this Agreement. All such
qualifications will be effective on the Closing, and all such filings be made
within the time prescribed by law.
3.8 Absence of Changes. Except as disclosed in the Company SEC
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Reports filed prior to the date of this Agreement, since December 31, 1999 the
Company and its Subsidiaries have conducted their respective business only in
the ordinary course and, since such date, there has not been (i) any event,
change or development in the business, properties, financial condition, results
of operations or prospects of the Company and its Subsidiaries, taken as a
whole, which, individually or in the aggregate, has had, or is reasonably likely
to have, a Material Adverse Effect; (ii) any damage, destruction or loss
(whether or not covered by insurance) with respect to the Company or any of its
Subsidiaries which, individually or in the aggregate, has had, or is reasonably
likely to have, a Material Adverse Effect, (iii) any obligation, direct or
contingent, that is material to the Company and its Subsidiaries taken as a
whole incurred by the Company, except obligations incurred in the ordinary
course of business, (iv) any change in the capital stock or outstanding
indebtedness of the Company that is material to the Company and its Subsidiaries
taken as a whole, or (v) any dividend or distribution of any kind declared, paid
or made on the capital stock of the Company. "Material Adverse Effect" shall
mean a material adverse effect on the business, properties, condition (financial
or otherwise), results of operations or prospects of the Company and its
Subsidiaries, taken as a whole,
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excluding any material adverse effect arising or resulting, directly or
indirectly, from general industry, economic or stock market conditions that do
not disproportionately affect the Company as compared to other entities
operating in the same industry.
3.9 Litigation. There is no action, suit, proceeding, claim,
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arbitration or investigation ("Action") pending (or, to the best of the
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Company's knowledge, currently threatened) against the Company, its activities,
properties or assets or, to the best of the Company's knowledge, against any
officer, director or employee of the Company in connection with such officer's,
director's or employee's relationship with, or actions taken on behalf of, the
Company which (i) might prevent the consummation of the transactions
contemplated hereby, (ii) is required, or if a threatened Action, would be
required, to be disclosed in the Company SEC Reports and is not so disclosed, or
(iii) if determined adversely, could have a Material Adverse Effect.
3.10 Agreements. There are no agreements, contracts, leases or
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documents of the Company of a character required to be described or referred to
in the Company SEC Reports or to be filed as an exhibit to the Company SEC
Reports which have not been accurately described in all material respects in the
Company SEC Reports or filed as exhibits to the Company SEC Reports
(collectively, the "Material Contracts"). Neither the Company nor any of its
Subsidiaries is in violation of or in default under (nor does there exist any
condition which, upon the passage of time or the giving of notice or both, would
cause such a violation of or default under) any loan or credit agreement, note,
bond, mortgage, indenture, lease, permit, concession, franchise, license or
other contract, arrangement or understanding to which it is a party or by which
it or any of its properties or assets is bound, except for violations or
defaults which, individually or in the aggregate, have not resulted in, and are
not reasonably likely to result in, a Material Adverse Effect. Other than
Material Contracts which have terminated or expired in accordance with their
terms, each of the Material Contracts is valid, binding and enforceable in
accordance with its terms (subject to the effects of bankruptcy, insolvency and
similar laws affecting creditors' rights generally and general principles of
equity) whether considered in a proceeding in equity or at law)) and is in full
force and effect, and such Material Contracts will continue to be valid, binding
and enforceable in accordance with their respective terms and in full force and
effect immediately following the consummation of the transactions contemplated
by this Agreement. No party to any of the Material Contracts has made any claims
against, or sought indemnification from, the Company as to any matter arising
under or with respect to any Material Contract, and none of the Company's
directors or officers has been advised by any such party of any alleged basis
for any such claims.
3.11 Nasdaq Listing. The Company's Common Stock is registered
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pursuant to Section 12(g) of the Exchange Act and is listed on the Nasdaq
National Market. The Company has taken no action designed to cause, or likely to
result in, the termination of the registration of the Common Stock under the
Exchange Act or the delisting of the Common Stock from the Nasdaq National
Market, nor has the Company received any notification that the SEC or the
National Association of Securities Dealers, Inc. is contemplating the
termination of such registration or listing. The Purchased Shares have been
approved for quotation on the Nasdaq National Market, subject to notice of
issuance.
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3.12 ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act. The Company shall, if required under the
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HSR Act (as defined below), promptly file any Notification and Report Forms and
related material that it may be required to file with the Federal Trade
Commission and the Antitrust Division of the United States Department of Justice
under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of ▇▇▇▇ (▇▇▇ "▇▇▇ ▇▇▇"),
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shall use its best efforts to obtain an early termination of the applicable
waiting period, and shall make any further filings or information submissions
pursuant thereto that may be necessary, proper or advisable.
3.13 Intellectual Property. The Company and its Subsidiaries
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exclusively own, or are licensed or otherwise possess legally enforceable rights
to use, all patents, trademarks, trade names, domain names, service marks and
copyrights, any applications for and registrations of such patents, trademarks,
trade names, domain names, service marks and copyrights, and all processes,
formulae, methods, schematics, technology, know-how, computer software programs
or applications and tangible or intangible proprietary information or material
that are used or necessary to conduct the business of the Company and its
Subsidiaries as currently conducted, and as presently contemplated to be
conducted (collectively the "Intellectual Property") except where the failure to
so own, be so licensed or otherwise so possess would not result in a Material
Adverse Effect. The Company is not aware that any of its employees is obligated
under any contract (including licenses, covenants or commitments of any nature)
or other agreement, or subject to any judgment, decree or order of any court or
administrative agency, that would conflict with the Company's business as
proposed to be conducted. The Company has taken reasonable measures to protect
the value (and, to the extent applicable, the confidentiality and security) of
all Intellectual Property which is material to its business. The Company has
taken reasonable steps to ensure that employees and consultants who, either
alone or in concert with others, developed, invented, discovered, derived,
programmed or designed Intellectual Property, or who have knowledge of or access
to information about Intellectual Property, have entered into a confidentiality
and invention assignment agreement. The Company does not have any knowledge of,
and the Company has not received any notice of, any pending conflicts with or
infringements of the rights of others with respect to any Intellectual Property
owned by the Company or licensed by the Company, the effect of which would give
rise to a Material Adverse Effect. The Company is not aware that any third party
is infringing any Intellectual Property rights held by the Company.
3.14 Transactions with Affiliates. Except as set forth in the Company
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SEC Reports filed prior to the date of this Agreement, between the date of the
Company's last proxy statement filed with the SEC and the date of this
Agreement, no event has occurred that would be required to be reported by the
Company pursuant to Item 404 of Regulation S-K promulgated by the SEC.
4. REPRESENTATIONS, WARRANTIES AND CERTAIN AGREEMENTS OF INVESTORS. Each
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Investor, solely with respect to itself, hereby represents and warrants to, and
agrees with, the Company, that:
4.1 Authorization. All corporate action on the part of Investor and
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its officers, directors and stockholders necessary for the authorization,
execution and delivery of, and the performance of all obligations of Investor
under, this Agreement has been taken or will be taken prior to the Closing, and
this Agreement constitutes a valid and legally binding obligation of
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Investor, (assuming that this Agreement has been duly authorized, executed, and
delivered by the Company and each other Investor) enforceable in accordance with
its terms, except as may be limited by (i) applicable bankruptcy, insolvency,
reorganization or others laws of general application relating to or affecting
the enforcement of creditors' rights generally and (ii) the effect of rules of
law governing the availability of equitable remedies.
4.2 Purchase for Own Account. The Purchased Shares to be purchased
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by Investor hereunder will be acquired for investment for Investor's own
account, not as a nominee or agent, and not with a current view to the public
resale or distribution thereof within the meaning of the Securities Act, and
Investor has no present intention of selling, granting any participation in, or
otherwise distributing the same.
4.3 Disclosure of Information; Experience. Investor has received a
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copy of the Company SEC Reports and has received or has had full access to all
the information it considers necessary or appropriate to make an informed
investment decision with respect to the Purchased Shares to be purchased by
Investor under this Agreement. Investor further has had an opportunity to ask
questions and receive answers from the Company regarding the terms and
conditions of the offering of the Purchased Shares and to obtain additional
information (to the extent the Company possessed such information or could
acquire it without unreasonable effort or expense) necessary to verify any
information furnished to Investor or to which Investor had access. Investor
represents that: (i) it has such knowledge and experience in financial and
business matters as to be capable of evaluating the merits and risks of its
prospective investment in the Purchased Shares; and (ii) it has the ability to
bear the economic risks of its prospective investment and is able, without
materially impairing its financial condition, to hold the Purchased Shares for
an indefinite period of time and to suffer a complete loss on its investment.
The foregoing, however, does not in any way limit or modify the representations
and warranties made by the Company in Section 3.
4.4 Private Placement. Investor understands and acknowledges that
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the offering of the Purchased Shares pursuant to this Agreement will not be
registered under the Securities Act on the grounds that the offering and sale of
securities contemplated by this Agreement are exempt from registration pursuant
to Section 4(2) of the Securities Act, and that the Company's reliance upon such
exemption is predicated upon Investor's representations set forth in this
Agreement.
4.5 Legends. It is understood that the certificates comprising the
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Purchased Shares will bear the following legend:
"The securities represented hereby have not been
registered under the Securities Act of 1933, as
amended ("Act") or any state securities laws. Such
securities may not be sold, pledged, assigned or
transferred except (a) pursuant to a registration
statement which has been declared effective under the
Securities Act and which continues to be effective at
the time of such sale, pledge, assignment or transfer
or (b) upon receipt by the Company of an opinion of
counsel or
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other evidence, satisfactory to the Company and its
counsel, that registration of this security is not
required."
It is understood that the certificates evidencing the Purchased Shares
shall also bear any legend required by the Washington State Administrator of
Securities or required pursuant to any state, local, or foreign law governing
such securities.
4.6 Accredited Investor. Investor is a United States domiciled
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person and qualifies, and will as of the Closing qualify, as an "accredited
investor" within the meaning of Rule 501 of Regulation D under the Securities
Act.
4.7 ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act. Investor shall, if required under the HSR
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Act, promptly file any Notification and Report Forms and related material that
it may be required to file with the Federal Trade Commission and the Antitrust
Division of the United States Department of Justice under the HSR Act, shall use
its best efforts to obtain an early termination of the applicable waiting
period, and shall make any further filings or information submissions pursuant
thereto that may be necessary, proper or advisable.
4.8 Standstill Obligation. Except as otherwise permitted by Section
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4.9 below, Investor agrees that it will not, without the approval of the
Company's Board of Directors, acquire any additional shares of the Company's
Voting Securities (as defined below) in the open market or otherwise if and to
the extent such acquisition results in Investor and its affiliates holding
greater than that percentage of the total Voting Securities as is set forth by
Investor's name on Exhibit A. The percentage limitation is referred to in this
Section 4.8 as the "Standstill Percentage." Notwithstanding the foregoing
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restriction:
(a) In the event any person or entity other than an Investor
acquires Voting Securities from the Company (other than pursuant to the
transactions contemplated by this Agreement), or from third parties or in the
open market, as a result of which such person or entity holds a percentage of
the Company's total securities greater than the Standstill Percentage of an
Investor, the Standstill Percentage of such Investor will be increased to the
percentage of the Company's total Voting Securities held by such person or
entity immediately following such acquisition. The Company shall promptly
provide each Investor with written notice of any such acquisition of Voting
Securities described in this paragraph (a) and the applicable increase in the
Standstill Percentage.
(b) Investor's obligations under this Section 4.8 shall
terminate upon the making of a bona fide offer by any third party or group
(within the meaning of Rule 13d-5 under the Exchange Act) of an intention to
acquire Voting Securities of the Company which, if successful, would result in
such party or group owning or having the right to acquire beneficial ownership
of more than such Investor's Standstill Percentage of the Company's Voting
Securities. Upon becoming aware of such an intention by any third party or
group, the Company shall promptly provide each Investor with written notice of
any such intention by any third party or group.
(c) Investor shall not be obligated to dispose of any Voting
Securities if the aggregate percentage of the total Securities beneficially
owned by Investor is increased as a
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result of a recapitalization, reclassification or other restructuring of the
Company or a repurchase of securities by the Company or any other action taken
by the Company, and upon such event the Standstill Percentage shall be
proportionately increased.
(d) The Company shall notify each Investor at least seven (7)
Business Days (a "Business Day" shall mean a business day for the NASDAQ
National Market) prior to entering into a binding definitive agreement with
respect to a Control Transaction, and will further notify Investor after
termination of the discussions to which such contemplated definitive agreement
relates. Each Investor acknowledges that such discussions may constitute
material inside information that may prevent open market purchases or sales
until a public announcement of such discussions or definitive agreement.
For purposes of this Section 4.8:
"Control Transaction" shall mean any merger, share exchange or other
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acquisition (or series of related transactions of such nature) as a result of
which the holders of Voting Securities of the Company immediately prior thereto
continue to own beneficially Voting Securities representing less than 50% of the
Voting Securities of the Company (or any successor entity) immediately
thereafter.
"Voting Securities" shall mean the shares of Common Stock of the
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Company, and in addition, any other securities of the Company convertible into
or exercisable for Common Stock which have a conversion or exercise price less
than the market price of the Company's Common Stock at the time any additional
share of Common Stock or other Company securities are acquired.
The covenants set forth in this Section 4.8 shall expire on the earlier to occur
of (i) 30 months from the date of this Agreement and (ii) the termination of the
standstill obligations of any other Investor (and the Company shall provide
prompt written notice to Investor of such termination).
4.9 Resale Restrictions. Each Investor agrees that it will not,
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without the prior written consent of the Company, for a period of twelve (12)
months following the date of this Agreement, directly or indirectly offer, sell,
contract to sell or otherwise dispose of or otherwise transfer (a "Disposition")
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the economic risk of ownership of the Purchased Shares, or any other securities
of the Company owned by it. Subsequent to such twelve (12) month period each
Investor agrees that it shall not effect a Disposition of the Purchased Shares
except in compliance with the Securities Act and the rules and regulations
thereunder. Notwithstanding anything contained in Section 4.8 above or this
Section 4.9 to the contrary, this Agreement shall not prohibit the purchase or
sale of equity securities of the Company by (i) any investment fund or
investment advisory client managed by Investor or any of Investor's affiliates,
or (ii) Investor or any of Investor's affiliates on behalf of such investment
fund or investment advisory client.
5. CONDITIONS TO INVESTORS' OBLIGATIONS AT CLOSING. The obligations of
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each Investor under Section 1 of this Agreement to purchase the Purchased Shares
at the Closing are subject to the fulfillment or waiver, on or before the
Closing, of each of the following conditions, any of which may be waived in
writing by such Investor.
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5.1 Representations and Warranties True. Each of the representations
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and warranties of the Company contained in Section 3 shall be true and correct
on and as of the Closing with the same effect as though such representations and
warranties had been made on and as of the date of the Closing (except (x) to the
extent such representations and warranties are specifically made as of a
particular date, in which case such representations and warranties shall be true
and correct as of such date, (y) for changes contemplated by this Agreement, and
(z) other than for the representations and warranties set forth in Sections 3.2,
3.4, 3.7, 3.11 and 3.12, where the failure to be true and correct (without
regard to any materiality, Company Material Adverse Effect or knowledge
qualifications contained therein), individually or in the aggregate, have not
had, and are not reasonably likely to have, a Material Adverse Effect), and the
Investors shall have received a certificate signed on behalf of the Company by
the chief executive officer and the chief financial officer of the Company to
such effect.
5.2 Performance. The Company shall have performed and complied with
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all agreements, obligations and conditions contained in this Agreement that are
required to be performed or complied with by it on or before the Closing and
shall have obtained all approvals, consents and qualifications necessary to
complete the purchase and sale described herein.
5.3 Compliance Certificate. The Company shall have delivered to the
----------------------
Investors a certificate signed on its behalf by its Chief Executive Officer or
Chief Financial Officer certifying that the conditions specified in Sections 5.1
and 5.2 have been fulfilled and stating that there shall have been no Material
Adverse Effect not previously disclosed to the Investors in writing.
5.4 Registration; Securities Exemptions. The offer and sale of the
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Purchased Shares to the Investors pursuant to this Agreement shall be exempt
from the registration requirements of the Securities Act, and the securities
laws of the State of Washington and of each jurisdiction in which any Investor
is resident.
5.5 Proceedings and Documents. All corporate and other proceedings
-------------------------
in connection with the transactions contemplated at the Closing and all
documents incident thereto shall be reasonably satisfactory in form and
substance to Investor and to Investor's special counsel, and they shall each
have received all such counterpart originals and certified or other copies of
such documents as they may reasonably request. Such documents shall include (but
not be limited to) the following:
(a) Certified Charter Documents. A copy of the Certificate of Incorporation
---------------------------
and the Bylaws of the Company (as amended through the date of the Closing),
certified by the Secretary of the Company as true and correct copies thereof.
(b) Corporate Actions. A copy of the resolutions of the Board of Directors
-----------------
evidencing the approval of this Agreement, the issuance of the Purchased Shares
and the other matters contemplated hereby.
(c) Legal Opinion. An opinion from Fenwick & West LLP, counsel to the Company,
-------------
with respect to the matters set forth in Exhibit 5.5.
10
5.6 ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act. All applicable waiting periods (and all
---------------------
extensions thereof) under the HSR Act shall have expired or otherwise been
terminated.
5.7 Letter Agreement. The Company shall have executed and delivered
----------------
the definitive commercial agreement(s) (collectively, for each Investor the
"Definitive Agreement") set forth beside each Investor's name on Exhibit A.
---------------------
5.8 Nasdaq Listing. The Shares shall have been approved for
--------------
quotation on the Nasdaq National Market, subject to notice of issuance.
5.9 Nomination Agreement. As a condition to the obligations of
--------------------
SAFECO Corporation ("Safeco"), under Section 1, the Company shall have executed
------
and delivered an agreement substantially in the form attached hereto as Exhibit
-------
B (the "Nomination Agreement").
- --------------------
5.10 Amendment to Investors' Rights Agreement. The Amendment to
----------------------------------------
Third Amended and Restated Information and Registration Rights Agreement
substantially in the form attached hereto as Exhibit C (the "Amendment") and
--------- ---------
providing for registration rights for the Investors substantially equivalent to
those of the Prior Investors shall have been executed and delivered by the
Company and by a sufficient number of Investors (as defined in the Third Amended
and Restated Information and Registration Rights Agreement dated as of May 26,
1999, by and among the Company and the Investors named therein (the "Prior
Investors")) to make such Amendment effective.
5.11 Blue Sky Compliance. The offer and sale of the Purchased Shares
-------------------
to the Investors shall be exempt from the registration requirements of the
Securities Act and the registration and/or qualification requirements of all
other applicable securities laws.
5.12 No Injunctions. No law or judgment (whether temporary,
--------------
preliminary or permanent) shall have been enacted, entered, promulgated or
enforced which prohibits, restrains, enjoins or restricts the consummation of
the sale and purchase of the Purchased Shares or any of the other transactions
contemplated by this Agreement.
6. CONDITIONS TO THE COMPANY'S OBLIGATIONS AT CLOSING. The obligations
--------------------------------------------------
of the Company to each Investor under this Agreement are subject to the
fulfillment or waiver on or before the Closing of each of the following
conditions by such Investor, any of which may be waived in writing by the
Company:
6.1 Representations and Warranties. The representations and
------------------------------
warranties of such Investor contained in Section 4 shall be true and correct on
the date of the Closing with the same effect as though such representations and
warranties had been made on and as of the Closing.
6.2 Payment of Purchase Price. Such Investor shall have delivered to
-------------------------
the Company the purchase price for the Purchased Shares specified for such
Investor in Section 1 hereof in accordance with the provisions of Section 2.
11
6.3 Blue Sky Compliance. The offer and sale of the Purchased Shares
-------------------
to the Investors shall be exempt from the registration requirements of the
Securities Act and the registration and/or qualification requirements of all
other applicable securities laws.
6.4 Proceedings and Documents. All corporate and other proceedings
-------------------------
in connection with the transactions contemplated at the Closing and all
documents incident thereto shall be reasonably satisfactory in form and
substance to the Company and to the Company's legal counsel, and the Company
shall have received all such counterpart originals and certified or other copies
of such documents as it may reasonably request.
6.5 ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act. All applicable waiting periods (and all
---------------------
extensions thereof) under the HSR Act shall have expired or otherwise been
terminated.
6.6 Letter Agreement. Such Investor or its affiliate shall have
----------------
executed and delivered the Definitive Agreement set forth by such Investor's
name on Exhibit A.
6.7 Nasdaq Listing. The Purchased Shares shall have been approved
--------------
for quotation on the Nasdaq National Market, subject to notice of issuance.
6.8 Nomination and Observer Agreement. As a condition to the
---------------------------------
Company's obligations to Safeco, such Investor shall have executed and delivered
the Nomination and Observer Agreement.
6.9 Amendment to Investors' Rights Agreement. The Prior Investors
----------------------------------------
shall have executed and delivered the Amendment.
6.10 No Injunctions. No law or judgment (whether temporary,
--------------
preliminary or permanent) shall have been enacted, entered, promulgated or
enforced which prohibits, restrains, enjoins or restricts the consummation of
the sale and purchase of the Purchased Shares or any of the other transactions
contemplated by this Agreement.
7. TERMINATION.
-----------
7.1 Termination. This Agreement may be terminated at any time prior
-----------
to the Closing: (i) by mutual written consent of the Company and each Investor,
(ii) by the Company or any Investor, if the Closing shall not have occurred on
or before April 10, 2000 (provided that the right to terminate this Agreement
under this Section 7.1(ii) shall not be available to any party whose failure to
fulfill any obligation under this Agreement has been the cause of, or resulted
in the failure of the Closing to have occurred on or before such date); (iii) by
any Investor or the Company if any court, administrative agency, or other
governmental or regulatory authority or agency shall have issued any final
order, judgment, decree, or ruling prohibiting or enjoining the consummation of
the transactions contemplated by this Agreement, or (iv) by the Company or by
any Investor, if there has been a breach of any representation, warranty,
covenant, or agreement on the part of another party set forth in this Agreement,
which breach (A) causes the conditions set forth in Section 6.1 (in the case of
termination by the Company), or Section 5.1 (in the case of termination by an
Investor) not to be satisfied, and (B) shall not have been cured within 10 days
following receipt by the breaching party of written notice of such breach from
the other party; provided, however, that the right to terminate this Agreement
under this Section 7 shall not be
12
available to any party seeking termination who at the time is in breach of or
has failed to fulfill its obligations under this Agreement. In the event of any
termination, each party agrees to use reasonable efforts to consult with the
others before issuing any press release or otherwise making any public statement
with respect to the termination, and shall not issue any such press release or
make any such public statement prior to using such efforts, except as may be
required by law.
7.2 Effect of Termination. If this Agreement is terminated in
---------------------
accordance with Section 7.1 hereof, this Agreement shall become null and void
and of no further force and effect, except that (i) the terms and provision of
this Section 7.2, and Article 8 (other than 8.1) shall remain in full force and
effect and (ii) any termination of this Agreement shall not relieve any party
hereto from any liability for any breach of its obligations hereunder.
8. MISCELLANEOUS.
-------------
8.1 Survival of Warranties. The representations, warranties and
----------------------
covenants of the Company and the Investors contained in or made pursuant to this
Agreement shall survive the execution and delivery of this Agreement and the
Closing and shall in no way be affected by any investigation of the subject
matter thereof made by or on behalf of any Investor, its counsel or the Company,
as the case may be.
8.2 Successors and Assigns. The terms and conditions of this
----------------------
Agreement shall inure to the benefit of and be binding upon the respective
successors and assigns of the parties.
8.3 Governing Law. This Agreement shall be governed by and construed
-------------
under the internal laws of the State of Delaware as applied to agreements among
Delaware residents entered into and to be performed entirely within Delaware,
without reference to principles of conflict of laws or choice of laws.
8.4 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.
8.5 Headings. The headings and captions used in this Agreement are
--------
used for convenience only and are not to be considered in construing or
interpreting this Agreement. All references in this Agreement to sections,
paragraphs, exhibits and schedules shall, unless otherwise provided, refer to
sections and paragraphs hereof and exhibits and schedules attached hereto, all
of which exhibits and schedules are incorporated herein by this reference.
8.6 Notices. Unless otherwise provided, any notice required or
-------
permitted under this Agreement shall be given in writing and shall be deemed
effectively given upon personal delivery, if delivery is in person; (i) at the
time of transmission by facsimile addressed to the party to be notified at its
facsimile number specified herein (or hereafter modified by subsequent notice to
the parties hereto); with confirmation of receipt made by both telephone and
printed confirmation sheet verifying successful transmission of the facsimile;
(ii) one (1) Business Day after deposit with an express overnight courier; or
(iii) three (3) Business Days after deposit in the United States mail by
registered or certified mail (return receipt requested). All notices not
delivered personally will be sent with postage and/or other charges prepaid and
properly addressed to the party to be notified in the case of the Company, at
6222 ▇▇▇/▇▇/ ▇▇▇▇▇▇
▇▇
▇.▇., ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, attention: Chief Executive Officer,
(Facsimile -425-497-_____) with a copy to Fenwick & West LLP, ▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ (Facsimile -
(▇▇▇) ▇▇▇-▇▇▇▇), or in the case of an Investor, at the address set forth on
Exhibit A or at such other address as any party may designate by giving ten (10)
days advance written notice to the other party.
8.7 No Finder's Fees. Each party represents that it neither is nor
----------------
will be obligated for any finder's or broker's fee or commission in connection
with this transaction. Each Investor agrees to indemnify and to hold harmless
the Company from any liability for any commission or compensation in the nature
of a finders' or broker's fee (and any asserted liability) for which such
Investor or any of its officers, partners, employees, or representatives is
responsible. The Company agrees to indemnify and hold harmless the Investors
from any liability for any commission or compensation in the nature of a
finder's or broker's fee (and any asserted liability) for which the Company or
any of its officers, employees or representatives is responsible.
8.8 Costs, Expenses. All costs in connection with the preparation,
---------------
execution delivery and performance of this Agreement (other than any required
filing fees under the HSR Act, the cost of which HSR Act filing fees shall be
shared equally between the Company and the applicable Investor) shall be borne
by the party incurring such costs.
8.9 Amendments and Waivers. Any term of this Agreement may be
----------------------
amended and the observance of any term of this Agreement may be waived (either
generally or in a particular instance and either retroactively or
prospectively), only with the written consent of the Company and each Investor.
Any amendment or waiver effected in accordance with this Section shall be
binding upon each holder of any Purchased Shares at the time outstanding, each
future holder of such securities, and the Company.
8.10 Severability. If one or more provisions of this Agreement are
------------
held to be unenforceable under applicable law, such provision(s) shall be
excluded from this Agreement and the balance of the Agreement shall be
interpreted as if such provision(s) were so excluded and shall be enforceable in
accordance with its terms.
8.11 Entire Agreement. This Agreement, together with any exhibits or
----------------
schedules hereto, constitutes the entire agreement and understanding of the
parties with respect to the subject matter hereof and supersedes any and all
prior negotiations, correspondence, agreements, understandings duties or
obligations between the parties with respect to the subject matter hereof.
8.12 Further Assurances. From and after the date of this Agreement,
------------------
upon the request of an Investor or the Company, the Company and each Investor
shall execute and deliver such instruments, documents or other writings and take
all such actions as may be reasonably necessary or desirable to confirm and
carry out and to effectuate fully the intent and purposes of this Agreement.
8.13 Removal of Legends From Certificates. The legend set forth in
------------------------------------
Section 4.5 shall be removed by the Company from any certificate evidencing
Purchased Shares
14
promptly after the effectiveness of a registration statement under the
Securities Act with respect to a legended security or delivery to the Company of
an opinion by counsel or other evidence, reasonably satisfactory to the Company,
that such security can be freely transferred in a public sale without such a
registration statement being in effect and that such transfer will not
jeopardize the exemption or exemptions from registration pursuant to which the
Company issued the Purchased Shares.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
THE COMPANY: INVESTORS:
----------- ---------
CONCUR TECHNOLOGIES, INC. NORTEL NETWORKS, INC.
a Delaware corporation a Delaware corporation
By: /s/ S. ▇▇▇▇▇▇ ▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
---------------------------- -------------------------
S. ▇▇▇▇▇▇ ▇▇▇▇▇, Chairman
and CEO
Title: /s/ Vice President
-----------------------
SAFECO CORPORATION:
------------------
a Washington corporation
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------
▇▇▇ ▇. ▇▇▇▇▇▇▇, Senior Vice
President, Chief Financial
Officer and Secretary
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
Authorized Signatory
[SIGNATURE PAGE TO STOCK PURCHASE AGREEMENT]
15
EXHIBIT A
Schedule of Investors
Number of % of Voting Definitive
Name and Address Purchased Shares Purchase Price Securities Agreement(s)
---------------- ---------------- -------------- ----------- ------------
SAFECO Corporation 1,073,929 $25,000,000 Joint Marketing
SAFECO Plaza Agreement dated
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ February 22, 2000
Attn: between the Company
Facsimile: and SAFECO Life
Insurance Company
Nortel Networks, Inc. 429,571 $10,000,000 Distributor
Agreement dated
Facsimile: February 22, 2000
between the Company
and SAFECO Life
Insurance Company