{"id":43043,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/agreement-and-plan-of-merger-concur-technologies-inc-wa-and.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"agreement-and-plan-of-merger-concur-technologies-inc-wa-and","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/planning\/agreement-and-plan-of-merger-concur-technologies-inc-wa-and.html","title":{"rendered":"Agreement and Plan of Merger &#8211; Concur Technologies Inc. (WA) and Concur Technologies Inc. (DE)"},"content":{"rendered":"<pre>\n                          AGREEMENT AND PLAN OF MERGER\n\n               THIS AGREEMENT AND PLAN OF MERGER (this \"Merger Agreement\") is\nmade as of _________________, 1998 by and between Concur Technologies, Inc., a\nWashington corporation (\"Concur Washington\"), and Concur Technologies, Inc., a\nDelaware corporation (\"Concur Delaware\"). Concur Washington and Concur Delaware\nare hereinafter sometimes collectively referred to as the \"Constituent\nCorporations.\"\n\n\n                                 R E C I T A L S\n\n               A. Concur Washington was incorporated on August 20, 1993. Its\ncurrent authorized capital stock consists of: (1) 60,000,000 shares of Common\nStock, no par value (\"Concur Washington Common Stock\"), of which 7,696,794\nshares are issued and outstanding; and (2) 53,000,000 shares of Preferred Stock,\nno par value (\"Concur Washington Preferred Stock\"), of which 3,824,092 shares\nare designated as Series A Preferred Stock (the \"Series A Stock\"), of which\n3,824,092 shares are outstanding, and of which 3,824,092 shares are designated\nas Series A1 Preferred Stock (the \"Series A1 Preferred Stock\"), none of which\nare outstanding, and of which 4,687,500 shares are designated as Series B\nPreferred Stock (the \"Series B Stock\"), of which 4,687,500 shares are\noutstanding, and of which 4,687,500 shares are designated as Series B1 Preferred\nStock (the \"Series B1 Preferred Stock\"), none of which are outstanding, and of\nwhich 9,774,801 shares are designated as Series C Preferred Stock (the \"Series C\nPreferred Stock\"), of which 9,712,301 shares are outstanding, and of which\n9,774,801 shares are designated as Series C1 Preferred Stock (\"Series C1\nPreferred Stock\"), none of which are outstanding, and of which 3,357,897 shares\nare designated as Series D Preferred Stock (the \"Series D Preferred Stock\"), of\nwhich 3,188,357 shares are outstanding, and of which 3,357,897 shares are\ndesignated as Series D1 Preferred Stock (the \"Series D1 Preferred Stock\"), none\nof which are outstanding, and of which 4,500,000 shares are designated as Series\nE Preferred Stock (the \"Series E Preferred Stock\"), of which 4,121,676 shares\nare outstanding, and of which 4,500,000 shares are designated as Series E1\nPreferred Stock (the \"Series E1 Preferred Stock\"), none of which are\noutstanding.\n\n               B. Concur Delaware was incorporated on August 5, 1998. Its\nauthorized capital stock consists of: (1) 60,000,000 shares of Common Stock, par\nvalue $0.001 per share (\"Concur Delaware Common Stock\"), of which 1,000 shares\nare issued and outstanding; and (2) 53,000,000 shares of Preferred Stock, $0.001\npar value (\"Concur Delaware Preferred Stock\"), none of which shares are issued\nand outstanding and of which 3,824,092 shares are designated as Series A\nPreferred Stock, 3,824,092 shares are designated as Series A1 Preferred Stock,\n4,687,500 shares are designated as Series B Preferred Stock, 4,687,500 shares\nare designated as Series B1 Preferred Stock, 9,774,801 shares are designated as\nSeries C Preferred Stock, 9,774,801 shares are designated as Series C1 Preferred\nStock, 3,357,897 shares are designated as Series D Preferred Stock, 3,357,897\nshares are designated as Series D1 Preferred Stock, 4,500,000 shares are\ndesignated as Series E Preferred Stock, and 4,500,000 shares are designated as\nSeries E1 Preferred Stock.\n\n               C. The respective Boards of Directors of Concur Washington and\nConcur Delaware deem it advisable and to the advantage of each of the\nConstituent Corporations that Concur Washington merge with and into Concur\nDelaware upon the terms and subject to the conditions set forth in this Merger\nAgreement for the purpose of effecting a change of the state of incorporation of\nConcur Washington from Washington to Delaware.\n\n\n\n\n\n                                                       Concur Technologies, Inc.\n                                                    Agreement and Plan of Merger\n\n\n\n               D. The Board of Directors of each of the Constituent Corporations\nhas approved this Merger Agreement.\n\n               NOW, THEREFORE, the parties do hereby agree that Concur\nWashington shall merge with and into Concur Delaware on the following terms,\nconditions and other provisions:\n\n               1. MERGER AND EFFECTIVE TIME. At the Effective Time (as defined\nbelow), Concur Washington shall be merged with and into Concur Delaware (the\n\"Merger\"), and Concur Delaware shall be the surviving corporation of the Merger\n(the \"Surviving Corporation\"). The Merger shall become effective upon the close\nof business on the date when a duly executed copy of this Merger Agreement,\nalong with all required officers' certificates, is filed with the Secretary of\nState of the State of Delaware (the \"Effective Time\").\n\n               2. EFFECT OF MERGER. At the Effective Time, the separate\ncorporate existence of Concur Washington shall cease; the corporate identity,\nexistence, powers, rights and immunities of Concur Delaware as the Surviving\nCorporation shall continue unimpaired by the Merger; and Concur Delaware shall\nsucceed to and shall possess all the assets, properties, rights, privileges,\npowers, franchises, immunities and purposes, and be subject to all the debts,\nliabilities, obligations, restrictions and duties of Concur Washington, all\nwithout further act or deed.\n\n               3. GOVERNING DOCUMENTS. At the Effective Time, the Certificate of\nIncorporation of Concur Delaware in effect immediately prior to the Effective\nTime shall become the Certificate of Incorporation of the Surviving Corporation,\nand the Bylaws of Concur Delaware in effect immediately prior to the Effective\nTime, without amendment thereto, shall become the Bylaws of the Surviving\nCorporation.\n\n               4. DIRECTORS AND OFFICERS. At the Effective Time, the directors\nand officers of Concur Delaware shall be and become the directors and officers\n(holding the same titles and positions) of the Surviving Corporation and after\nthe Effective Time shall serve in accordance with the Certificate of\nIncorporation and Bylaws of the Surviving Corporation.\n\n               5. CONVERSION OF SHARES OF CONCUR WASHINGTON. Subject to the\nterms and conditions of this Agreement, at the Effective Time and without any\nfurther action on the part of any shareholder of Concur Washington, each share\nof Concur Washington Common Stock outstanding immediately prior thereto (other\nthan any shares held by persons exercising dissenters' rights in accordance with\nthe Washington Business Corporation Act (\"Dissenting Shares\")) shall be\nautomatically changed and converted into one fully paid and nonassessable,\nissued and outstanding share of Concur Delaware Common Stock. At the Effective\nTime: (a) each share of Concur Washington Series A Preferred Stock outstanding\nimmediately prior thereto shall be automatically changed and converted into one\nfully paid and nonassessable, issued and outstanding share of Concur Delaware\nSeries A Preferred Stock; (b) each share of Concur Washington Series B Preferred\nStock outstanding immediately prior thereto shall be automatically changed and\nconverted into one fully paid and nonassessable, issued and outstanding share of\nConcur Delaware Series B Preferred Stock; (c) each share of Concur Washington\nSeries C Preferred Stock outstanding immediately prior thereto shall be\nautomatically changed and converted into one fully paid and nonassessable,\nissued and outstanding share of Concur Delaware Series C Preferred Stock; (d)\neach share of Concur Washington Series D Preferred Stock outstanding immediately\nprior thereto shall be automatically changed and converted into one fully paid\nand nonassessable, issued and outstanding share of Concur Delaware Series D\nPreferred Stock; and (e) each share of Concur Washington Series E Preferred\nStock outstanding immediately prior thereto shall be\n\n\n\n\n\n                                      -2-\n\n                                                       Concur Technologies, Inc.\n                                                    Agreement and Plan of Merger\n\n\n\nautomatically changed and converted into one fully paid and nonassessable,\nissued and outstanding share of Concur Delaware Series E Preferred Stock\n\n               6. CANCELLATION OF SHARES OF CONCUR DELAWARE. At the Effective\nTime, all of the previously issued and outstanding shares of Concur Delaware\nCommon Stock that were issued and outstanding immediately prior to the Effective\nTime shall be automatically retired and canceled.\n\n               7. STOCK CERTIFICATES. At and after the Effective Time, all of\nthe outstanding certificates that, prior to that date, represented shares of\nConcur Washington Common Stock shall be deemed for all purposes to evidence\nownership of and to represent the number of shares of Concur Delaware Common\nStock into which such shares of Concur Washington Common Stock are converted as\nprovided herein. At and after the Effective Time, all of the outstanding\ncertificates that, prior to that date, represented shares of a series of Concur\nWashington Preferred Stock shall be deemed for all purposes to evidence\nownership of and to represent the number of shares of the series of Concur\nDelaware Preferred Stock into which such shares of Concur Washington Preferred\nStock are converted as provided herein. The registered owner on the books and\nrecords of Concur Washington of any such outstanding stock certificate for\nConcur Washington Common Stock or Concur Washington Preferred Stock shall, until\nsuch certificate shall have been surrendered for transfer or otherwise accounted\nfor to Concur Delaware or its transfer agent, be entitled to exercise any voting\nand other rights with respect to, and to receive any dividend and other\ndistributions upon, the shares of Concur Delaware Common Stock or Concur\nDelaware Preferred Stock evidenced by such outstanding certificate as above\nprovided.\n\n               8. CONVERSION OF OPTIONS OF CONCUR WASHINGTON. At the Effective\nTime, all outstanding and unexercised portions of all options to purchase shares\nof Concur Washington Common Stock under the Concur Washington 1994 Stock Option\nPlan (the \"1994 Plan\") shall become options to purchase the same number of\nshares of Concur Delaware Common Stock at the original exercise price per share\nand shall, to the extent permitted by law and otherwise reasonably practicable,\nhave the same term, exercisability, vesting schedule, status as an \"incentive\nstock option\" under Section 422 of the Internal Revenue Code of 1986, as amended\n(the \"Code\"), if applicable, and all other material terms and conditions\n(including but not limited to the terms and conditions applicable to such\noptions by virtue of the 1994 Plan). In addition, at the Effective Time, all\noutstanding and unexercised portions of all options to purchase shares of Concur\nWashington Common Stock granted by 7Software, Inc. (\"7Software\") under the 1997\nStock Option Plan of 7Software and assumed by Concur Washington in connection\nwith its acquisition of 7Software in June 1998 (such assumed 1997 Stock Option\nPlan of 7Software hereinafter referred to as the \"7Software Plan\") shall become\noptions to purchase the same number of shares of Concur Delaware Common Stock at\nthe original exercise price per share and shall, to the extent permitted by law\nand otherwise reasonably practicable, have the same term, exercisability,\nvesting schedule, status as an \"incentive stock option\" under Section 422 of the\nCode, if applicable, and all other material terms and conditions (including but\nnot limited to the terms and conditions applicable to such options by virtue of\nthe 7Software Plan). Additionally, at the Effective Time, all outstanding and\nunexercised portions of all options to purchase shares of Concur Washington\nCommon Stock granted by 7Software outside of the 7Software Plan and assumed by\nConcur Washington in connection with its acquisition of 7Software in June 1998\nshall become options to purchase the same number of shares of Concur Delaware\nCommon Stock at the original exercise price per share and shall, to the extent\npermitted by law and otherwise reasonably practicable, have the same term,\nexercisability, vesting schedule, status as an \"incentive stock option\" under\nSection 422 of the Code, if applicable, and all other material terms and\nconditions (including but not limited to the terms and conditions applicable to\nsuch options by virtue of the 7Software Plan). Continuous employment with\n7Software and Concur Washington will be credited to an optionee for purposes of\ndetermining the vesting of the number of shares of Concur Delaware Common Stock\nunder a converted Concur Washington option at the Effective\n\n\n\n\n\n                                      -3-\n\n                                                       Concur Technologies, Inc.\n                                                    Agreement and Plan of Merger\n\n\n\nTime. At the Effective Time, Concur Delaware shall also adopt and assume the\n1994 Plan and the 7Software Plan.\n\n               9. CONVERSION OF WARRANTS OF CONCUR WASHINGTON. At the Effective\nTime, all outstanding and unexercised portions of all warrants to purchase\nshares of Concur Washington Preferred Stock shall become warrants to purchase\nthe same number of shares of Concur Delaware Preferred Stock at the original\nexercise price per share and shall, to the extent permitted by law and otherwise\nreasonably practicable, have the same material terms and conditions.\n\n               10. FRACTIONAL SHARES. Since all shares of Concur Washington\nCommon Stock and Preferred Stock will be exchanged for a like number of shares\nof Concur Delaware Common Stock and Preferred Stock, no fractional shares of\nConcur Delaware Common Stock or Preferred Stock will be issued in connection\nwith the Merger.\n\n               11. EMPLOYEE BENEFIT PLANS. At the Effective Time, the\nobligations of Concur Washington under or with respect to every plan, trust,\nprogram and benefit then in effect or administered by Concur Washington for the\nbenefit of the directors, officers and employees of Concur Washington shall\nbecome the lawful obligations of Concur Delaware and shall be implemented and\nadministered in the same manner and without interruption until the same are\namended or otherwise lawfully altered or terminated. Effective at the Effective\nTime, Concur Delaware hereby expressly adopts and assumes all obligations of\nConcur Washington under such employee benefit plans.\n\n               12. FURTHER ASSURANCES. From time to time, as and when required\nby the Surviving Corporation or by its successors or assigns, there shall be\nexecuted and delivered on behalf of Concur Washington such deeds, assignments\nand other instruments, and there shall be taken or caused to be taken by it all\nsuch further action as shall be appropriate, advisable or necessary in order to\nvest, perfect or confirm, of record or otherwise, in the Surviving Corporation\nthe title to and possession of all property, interests, assets, rights,\nprivileges, immunities, powers, franchises and authority of Concur Washington,\nand otherwise to carry out the purposes of this Merger Agreement. The officers\nand directors of the Surviving Corporation are fully authorized in the name of\nand on behalf of Concur Washington, or otherwise, to take any and all such\nactions and to execute and deliver any and all such deeds and other instruments\nas may be necessary or appropriate to accomplish the foregoing.\n\n               13. CONDITION. The consummation of the Merger is subject to the\napproval of this Merger Agreement and the Merger contemplated hereby by the\nshareholders of Concur Washington and by the sole stockholder of Concur\nDelaware, prior to or at the Effective Time.\n\n               14. ABANDONMENT. At any time before the Effective Time, this\nMerger Agreement may be terminated and the Merger abandoned by the Board of\nDirectors of Concur Washington or the Board of Directors of Concur Delaware,\nnotwithstanding approval of this Merger Agreement by the Boards of Directors and\nshareholders of Concur Washington and Concur Delaware.\n\n               15. AMENDMENT. At any time before the Effective Time, this Merger\nAgreement may be amended, modified or supplemented by the Boards of Directors of\nthe Constituent Corporations, notwithstanding approval of this Merger Agreement\nby the shareholders of Concur Washington and Concur Delaware; provided, however,\nthat any amendment made subsequent to the adoption of this Agreement by the\nshareholders of Concur Washington or the sole stockholder of Concur Delaware\nshall not: (i) alter or change the amount or kind of shares, securities, cash,\nproperty and\/or rights to be received in exchange for or upon conversion of any\nshares of any class or series of Concur Washington; (ii) alter or change any of\nthe terms of the Certificate of Incorporation of the Surviving Corporation to be\n\n\n\n\n\n                                      -4-\n\n                                                       Concur Technologies, Inc.\n                                                    Agreement and Plan of Merger\n\n\n\neffected by the Merger; or (iii) alter or change any of the terms or conditions\nof this Merger Agreement if such alteration or change would adversely affect the\nholders of any shares of any class or series of Concur Washington or Concur\nDelaware.\n\n               16. TAX-FREE REORGANIZATION. The Merger is intended to be a\ntax-free plan of reorganization within the meaning of Section 368(a)(1)(F) of\nthe Code.\n\n               17. DISSENTERS' RIGHTS. Holders of Dissenting Shares who have\ncomplied with all the requirements for perfecting the rights of dissenting\nshareholders as set forth in the Washington Business Corporation Act shall be\nentitled to their rights under such law.\n\n               18. GOVERNING LAW. This Agreement shall be governed by and\nconstrued under the internal laws of the State of Washington as applied to\nagreements among Washington residents entered into and to be performed entirely\nwithin Washington, without reference to the principles of conflicts of law or\nchoice of laws, except to the extent that the laws of the State of Delaware\nwould apply in matters relating to the internal affairs of Concur Delaware and\nthe Merger.\n\n               19. COUNTERPARTS. In order to facilitate the filing and recording\nof this Merger Agreement, it may be executed in any number of counterparts, each\nof which shall be deemed to be an original.\n\n\n\n\n\n\n\n\n\n                  [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n                                      -5-\n\n\n                                                       Concur Technologies, Inc.\n                                                    Agreement and Plan of Merger\n\n\n\n               IN WITNESS WHEREOF, this Merger Agreement is hereby executed on\nbehalf of each of the Constituent Corporations and attested by their respective\nofficers hereunto duly authorized.\n\n\n\n\nCONCUR TECHNOLOGIES, INC.                   CONCUR TECHNOLOGIES, INC.\na Washington corporation                    a Delaware corporation\n\n\n\nBy: _______________________________         By:  _______________________________\n     S. Steven Singh                              S. Steven Singh\n     Chief Executive Officer                      Chief Executive Officer\n\n\n\n\n\nAttested By:                                Attested By:\n\n\n\n\n\n___________________________________         ____________________________________\n     Matthew P. Quilter                                Matthew P. Quilter\n     Secretary                                         Secretary\n\n\n\n\n\n\n\n\n\n\n\n                [SIGNATURE PAGE TO AGREEMENT AND PLAN OF MERGER]\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n                                      -6-\n\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[7179],"corporate_contracts_industries":[9513],"corporate_contracts_types":[9622,9626],"class_list":["post-43043","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-concur-technologies-inc","corporate_contracts_industries-technology__software","corporate_contracts_types-planning","corporate_contracts_types-planning__merger"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/43043","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=43043"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=43043"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=43043"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=43043"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}