AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (this "Merger Agreement") is
made as of _________________, 1998 by and between Concur Technologies, Inc., a
Washington corporation ("Concur Washington"), and Concur Technologies, Inc., a
Delaware corporation ("Concur Delaware"). Concur Washington and Concur Delaware
are hereinafter sometimes collectively referred to as the "Constituent
Corporations."
R E C I T A L S
A. Concur Washington was incorporated on August 20, 1993. Its
current authorized capital stock consists of: (1) 60,000,000 shares of Common
Stock, no par value ("Concur Washington Common Stock"), of which 7,696,794
shares are issued and outstanding; and (2) 53,000,000 shares of Preferred Stock,
no par value ("Concur Washington Preferred Stock"), of which 3,824,092 shares
are designated as Series A Preferred Stock (the "Series A Stock"), of which
3,824,092 shares are outstanding, and of which 3,824,092 shares are designated
as Series A1 Preferred Stock (the "Series A1 Preferred Stock"), none of which
are outstanding, and of which 4,687,500 shares are designated as Series B
Preferred Stock (the "Series B Stock"), of which 4,687,500 shares are
outstanding, and of which 4,687,500 shares are designated as Series B1 Preferred
Stock (the "Series B1 Preferred Stock"), none of which are outstanding, and of
which 9,774,801 shares are designated as Series C Preferred Stock (the "Series C
Preferred Stock"), of which 9,712,301 shares are outstanding, and of which
9,774,801 shares are designated as Series C1 Preferred Stock ("Series C1
Preferred Stock"), none of which are outstanding, and of which 3,357,897 shares
are designated as Series D Preferred Stock (the "Series D Preferred Stock"), of
which 3,188,357 shares are outstanding, and of which 3,357,897 shares are
designated as Series D1 Preferred Stock (the "Series D1 Preferred Stock"), none
of which are outstanding, and of which 4,500,000 shares are designated as Series
E Preferred Stock (the "Series E Preferred Stock"), of which 4,121,676 shares
are outstanding, and of which 4,500,000 shares are designated as Series E1
Preferred Stock (the "Series E1 Preferred Stock"), none of which are
outstanding.
B. Concur Delaware was incorporated on August 5, 1998. Its
authorized capital stock consists of: (1) 60,000,000 shares of Common Stock, par
value $0.001 per share ("Concur Delaware Common Stock"), of which 1,000 shares
are issued and outstanding; and (2) 53,000,000 shares of Preferred Stock, $0.001
par value ("Concur Delaware Preferred Stock"), none of which shares are issued
and outstanding and of which 3,824,092 shares are designated as Series A
Preferred Stock, 3,824,092 shares are designated as Series A1 Preferred Stock,
4,687,500 shares are designated as Series B Preferred Stock, 4,687,500 shares
are designated as Series B1 Preferred Stock, 9,774,801 shares are designated as
Series C Preferred Stock, 9,774,801 shares are designated as Series C1 Preferred
Stock, 3,357,897 shares are designated as Series D Preferred Stock, 3,357,897
shares are designated as Series D1 Preferred Stock, 4,500,000 shares are
designated as Series E Preferred Stock, and 4,500,000 shares are designated as
Series E1 Preferred Stock.
C. The respective Boards of Directors of Concur Washington and
Concur Delaware deem it advisable and to the advantage of each of the
Constituent Corporations that Concur Washington merge with and into Concur
Delaware upon the terms and subject to the conditions set forth in this Merger
Agreement for the purpose of effecting a change of the state of incorporation of
Concur Washington from Washington to Delaware.
Concur Technologies, Inc.
Agreement and Plan of Merger
D. The Board of Directors of each of the Constituent Corporations
has approved this Merger Agreement.
NOW, THEREFORE, the parties do hereby agree that Concur
Washington shall merge with and into Concur Delaware on the following terms,
conditions and other provisions:
1. MERGER AND EFFECTIVE TIME. At the Effective Time (as defined
below), Concur Washington shall be merged with and into Concur Delaware (the
"Merger"), and Concur Delaware shall be the surviving corporation of the Merger
(the "Surviving Corporation"). The Merger shall become effective upon the close
of business on the date when a duly executed copy of this Merger Agreement,
along with all required officers' certificates, is filed with the Secretary of
State of the State of Delaware (the "Effective Time").
2. EFFECT OF MERGER. At the Effective Time, the separate
corporate existence of Concur Washington shall cease; the corporate identity,
existence, powers, rights and immunities of Concur Delaware as the Surviving
Corporation shall continue unimpaired by the Merger; and Concur Delaware shall
succeed to and shall possess all the assets, properties, rights, privileges,
powers, franchises, immunities and purposes, and be subject to all the debts,
liabilities, obligations, restrictions and duties of Concur Washington, all
without further act or deed.
3. GOVERNING DOCUMENTS. At the Effective Time, the Certificate of
Incorporation of Concur Delaware in effect immediately prior to the Effective
Time shall become the Certificate of Incorporation of the Surviving Corporation,
and the Bylaws of Concur Delaware in effect immediately prior to the Effective
Time, without amendment thereto, shall become the Bylaws of the Surviving
Corporation.
4. DIRECTORS AND OFFICERS. At the Effective Time, the directors
and officers of Concur Delaware shall be and become the directors and officers
(holding the same titles and positions) of the Surviving Corporation and after
the Effective Time shall serve in accordance with the Certificate of
Incorporation and Bylaws of the Surviving Corporation.
5. CONVERSION OF SHARES OF CONCUR WASHINGTON. Subject to the
terms and conditions of this Agreement, at the Effective Time and without any
further action on the part of any shareholder of Concur Washington, each share
of Concur Washington Common Stock outstanding immediately prior thereto (other
than any shares held by persons exercising dissenters' rights in accordance with
the Washington Business Corporation Act ("Dissenting Shares")) shall be
automatically changed and converted into one fully paid and nonassessable,
issued and outstanding share of Concur Delaware Common Stock. At the Effective
Time: (a) each share of Concur Washington Series A Preferred Stock outstanding
immediately prior thereto shall be automatically changed and converted into one
fully paid and nonassessable, issued and outstanding share of Concur Delaware
Series A Preferred Stock; (b) each share of Concur Washington Series B Preferred
Stock outstanding immediately prior thereto shall be automatically changed and
converted into one fully paid and nonassessable, issued and outstanding share of
Concur Delaware Series B Preferred Stock; (c) each share of Concur Washington
Series C Preferred Stock outstanding immediately prior thereto shall be
automatically changed and converted into one fully paid and nonassessable,
issued and outstanding share of Concur Delaware Series C Preferred Stock; (d)
each share of Concur Washington Series D Preferred Stock outstanding immediately
prior thereto shall be automatically changed and converted into one fully paid
and nonassessable, issued and outstanding share of Concur Delaware Series D
Preferred Stock; and (e) each share of Concur Washington Series E Preferred
Stock outstanding immediately prior thereto shall be
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automatically changed and converted into one fully paid and nonassessable,
issued and outstanding share of Concur Delaware Series E Preferred Stock
6. CANCELLATION OF SHARES OF CONCUR DELAWARE. At the Effective
Time, all of the previously issued and outstanding shares of Concur Delaware
Common Stock that were issued and outstanding immediately prior to the Effective
Time shall be automatically retired and canceled.
7. STOCK CERTIFICATES. At and after the Effective Time, all of
the outstanding certificates that, prior to that date, represented shares of
Concur Washington Common Stock shall be deemed for all purposes to evidence
ownership of and to represent the number of shares of Concur Delaware Common
Stock into which such shares of Concur Washington Common Stock are converted as
provided herein. At and after the Effective Time, all of the outstanding
certificates that, prior to that date, represented shares of a series of Concur
Washington Preferred Stock shall be deemed for all purposes to evidence
ownership of and to represent the number of shares of the series of Concur
Delaware Preferred Stock into which such shares of Concur Washington Preferred
Stock are converted as provided herein. The registered owner on the books and
records of Concur Washington of any such outstanding stock certificate for
Concur Washington Common Stock or Concur Washington Preferred Stock shall, until
such certificate shall have been surrendered for transfer or otherwise accounted
for to Concur Delaware or its transfer agent, be entitled to exercise any voting
and other rights with respect to, and to receive any dividend and other
distributions upon, the shares of Concur Delaware Common Stock or Concur
Delaware Preferred Stock evidenced by such outstanding certificate as above
provided.
8. CONVERSION OF OPTIONS OF CONCUR WASHINGTON. At the Effective
Time, all outstanding and unexercised portions of all options to purchase shares
of Concur Washington Common Stock under the Concur Washington 1994 Stock Option
Plan (the "1994 Plan") shall become options to purchase the same number of
shares of Concur Delaware Common Stock at the original exercise price per share
and shall, to the extent permitted by law and otherwise reasonably practicable,
have the same term, exercisability, vesting schedule, status as an "incentive
stock option" under Section 422 of the Internal Revenue Code of 1986, as amended
(the "Code"), if applicable, and all other material terms and conditions
(including but not limited to the terms and conditions applicable to such
options by virtue of the 1994 Plan). In addition, at the Effective Time, all
outstanding and unexercised portions of all options to purchase shares of Concur
Washington Common Stock granted by 7Software, Inc. ("7Software") under the 1997
Stock Option Plan of 7Software and assumed by Concur Washington in connection
with its acquisition of 7Software in June 1998 (such assumed 1997 Stock Option
Plan of 7Software hereinafter referred to as the "7Software Plan") shall become
options to purchase the same number of shares of Concur Delaware Common Stock at
the original exercise price per share and shall, to the extent permitted by law
and otherwise reasonably practicable, have the same term, exercisability,
vesting schedule, status as an "incentive stock option" under Section 422 of the
Code, if applicable, and all other material terms and conditions (including but
not limited to the terms and conditions applicable to such options by virtue of
the 7Software Plan). Additionally, at the Effective Time, all outstanding and
unexercised portions of all options to purchase shares of Concur Washington
Common Stock granted by 7Software outside of the 7Software Plan and assumed by
Concur Washington in connection with its acquisition of 7Software in June 1998
shall become options to purchase the same number of shares of Concur Delaware
Common Stock at the original exercise price per share and shall, to the extent
permitted by law and otherwise reasonably practicable, have the same term,
exercisability, vesting schedule, status as an "incentive stock option" under
Section 422 of the Code, if applicable, and all other material terms and
conditions (including but not limited to the terms and conditions applicable to
such options by virtue of the 7Software Plan). Continuous employment with
7Software and Concur Washington will be credited to an optionee for purposes of
determining the vesting of the number of shares of Concur Delaware Common Stock
under a converted Concur Washington option at the Effective
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Time. At the Effective Time, Concur Delaware shall also adopt and assume the
1994 Plan and the 7Software Plan.
9. CONVERSION OF WARRANTS OF CONCUR WASHINGTON. At the Effective
Time, all outstanding and unexercised portions of all warrants to purchase
shares of Concur Washington Preferred Stock shall become warrants to purchase
the same number of shares of Concur Delaware Preferred Stock at the original
exercise price per share and shall, to the extent permitted by law and otherwise
reasonably practicable, have the same material terms and conditions.
10. FRACTIONAL SHARES. Since all shares of Concur Washington
Common Stock and Preferred Stock will be exchanged for a like number of shares
of Concur Delaware Common Stock and Preferred Stock, no fractional shares of
Concur Delaware Common Stock or Preferred Stock will be issued in connection
with the Merger.
11. EMPLOYEE BENEFIT PLANS. At the Effective Time, the
obligations of Concur Washington under or with respect to every plan, trust,
program and benefit then in effect or administered by Concur Washington for the
benefit of the directors, officers and employees of Concur Washington shall
become the lawful obligations of Concur Delaware and shall be implemented and
administered in the same manner and without interruption until the same are
amended or otherwise lawfully altered or terminated. Effective at the Effective
Time, Concur Delaware hereby expressly adopts and assumes all obligations of
Concur Washington under such employee benefit plans.
12. FURTHER ASSURANCES. From time to time, as and when required
by the Surviving Corporation or by its successors or assigns, there shall be
executed and delivered on behalf of Concur Washington such deeds, assignments
and other instruments, and there shall be taken or caused to be taken by it all
such further action as shall be appropriate, advisable or necessary in order to
vest, perfect or confirm, of record or otherwise, in the Surviving Corporation
the title to and possession of all property, interests, assets, rights,
privileges, immunities, powers, franchises and authority of Concur Washington,
and otherwise to carry out the purposes of this Merger Agreement. The officers
and directors of the Surviving Corporation are fully authorized in the name of
and on behalf of Concur Washington, or otherwise, to take any and all such
actions and to execute and deliver any and all such deeds and other instruments
as may be necessary or appropriate to accomplish the foregoing.
13. CONDITION. The consummation of the Merger is subject to the
approval of this Merger Agreement and the Merger contemplated hereby by the
shareholders of Concur Washington and by the sole stockholder of Concur
Delaware, prior to or at the Effective Time.
14. ABANDONMENT. At any time before the Effective Time, this
Merger Agreement may be terminated and the Merger abandoned by the Board of
Directors of Concur Washington or the Board of Directors of Concur Delaware,
notwithstanding approval of this Merger Agreement by the Boards of Directors and
shareholders of Concur Washington and Concur Delaware.
15. AMENDMENT. At any time before the Effective Time, this Merger
Agreement may be amended, modified or supplemented by the Boards of Directors of
the Constituent Corporations, notwithstanding approval of this Merger Agreement
by the shareholders of Concur Washington and Concur Delaware; provided, however,
that any amendment made subsequent to the adoption of this Agreement by the
shareholders of Concur Washington or the sole stockholder of Concur Delaware
shall not: (i) alter or change the amount or kind of shares, securities, cash,
property and/or rights to be received in exchange for or upon conversion of any
shares of any class or series of Concur Washington; (ii) alter or change any of
the terms of the Certificate of Incorporation of the Surviving Corporation to be
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effected by the Merger; or (iii) alter or change any of the terms or conditions
of this Merger Agreement if such alteration or change would adversely affect the
holders of any shares of any class or series of Concur Washington or Concur
Delaware.
16. TAX-FREE REORGANIZATION. The Merger is intended to be a
tax-free plan of reorganization within the meaning of Section 368(a)(1)(F) of
the Code.
17. DISSENTERS' RIGHTS. Holders of Dissenting Shares who have
complied with all the requirements for perfecting the rights of dissenting
shareholders as set forth in the Washington Business Corporation Act shall be
entitled to their rights under such law.
18. GOVERNING LAW. This Agreement shall be governed by and
construed under the internal laws of the State of Washington as applied to
agreements among Washington residents entered into and to be performed entirely
within Washington, without reference to the principles of conflicts of law or
choice of laws, except to the extent that the laws of the State of Delaware
would apply in matters relating to the internal affairs of Concur Delaware and
the Merger.
19. COUNTERPARTS. In order to facilitate the filing and recording
of this Merger Agreement, it may be executed in any number of counterparts, each
of which shall be deemed to be an original.
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IN WITNESS WHEREOF, this Merger Agreement is hereby executed on
behalf of each of the Constituent Corporations and attested by their respective
officers hereunto duly authorized.
CONCUR TECHNOLOGIES, INC. CONCUR TECHNOLOGIES, INC.
a Washington corporation a Delaware corporation
By: _______________________________ By: _______________________________
S. Steven Singh S. Steven Singh
Chief Executive Officer Chief Executive Officer
Attested By: Attested By:
___________________________________ ____________________________________
Matthew P. Quilter Matthew P. Quilter
Secretary Secretary
[SIGNATURE PAGE TO AGREEMENT AND PLAN OF MERGER]
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Agreement and Plan of Merger - Concur Technologies Inc. (WA) and Concur Technologies Inc. (DE)
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