Schedule 13D

-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, MQCCrjs39zRSKI2jT1nMrvseg/hdU5vUq0u0Rohej2aJUygiEE9MPKTTpHboSqiV QVSOluY8XrWnJd0tLcCUsA== 0001012870-03-000994.txt : 20030304 0001012870-03-000994.hdr.sgml : 20030304 20030304152720 ACCESSION NUMBER: 0001012870-03-000994 CONFORMED SUBMISSION TYPE: SC 13D PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20030304 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: CREDIT SUISSE FIRST BOSTON/ CENTRAL INDEX KEY: 0000824468 FILING VALUES: FORM TYPE: SC 13D BUSINESS ADDRESS: STREET 1: PO BOX 900 STREET 2: FHLS CITY: ZURICH SWITZERLAND MAIL ADDRESS: STREET 1: PO BOX 900 CITY: ZURICH SWITZERLAND FORMER COMPANY: FORMER CONFORMED NAME: CREDIT SUISSE DATE OF NAME CHANGE: 19921119 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: CONCUR TECHNOLOGIES INC CENTRAL INDEX KEY: 0001066026 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-PREPACKAGED SOFTWARE [7372] IRS NUMBER: 911608052 STATE OF INCORPORATION: WA FISCAL YEAR END: 0930 FILING VALUES: FORM TYPE: SC 13D SEC ACT: 1934 Act SEC FILE NUMBER: 005-54967 FILM NUMBER: 03591427 BUSINESS ADDRESS: STREET 1: 6222 185TH AVE NE CITY: REDMOND STATE: WA ZIP: 98052 BUSINESS PHONE: 4257028808 MAIL ADDRESS: STREET 1: 6222 185TH AVE NE CITY: REDMOND STATE: WA ZIP: 98052 FORMER COMPANY: FORMER CONFORMED NAME: PORTABLE SOFTWARE CORP DATE OF NAME CHANGE: 19980714 SC 13D 1 dsc13d.htm SCHEDULE 13D Schedule 13D

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

SCHEDULE 13D

(Rule 13d-101)

Under the Securities Exchange Act of 1934

INFORMATION TO BE INCLUDED IN THE STATEMENTS FILED PURSUANT TO

RULE 13d-1(a) AND AMENDMENTS THERETO FILED PURSUANT TO RULE 13d-2(a)

Concur Technologies, Inc.

(Name of Issuer)

Common Stock, $0.001 par value

(Title of Class of Securities)

206708109

(CUSIP Number)

Ivy B. Dodes

Credit Suisse First Boston

11 Madison Avenue

New York, New York 10010

(212) 325-2000

(Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications)

August 22, 2002

(Date of Event which Requires Filing of this Statement)

If the filing person has previously filed a statement on Schedule 13G to report the acquisition which is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the following box ¨.

The remainder of this cover page shall be filled out for a reporting person’s initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would later disclosures provided in a prior cover page.

The information required on the remainder of this cover page will not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 (“Act”) or otherwise subject to the liabilities of that section of the Act but will be subject to all other provisions of the Act (however, see the Notes).

(Page 1 of 17 Pages)



CUSIP NO. 206708109


1.		NAMES OF REPORTING PERSONS S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON Credit Suisse First Boston, on behalf of the Credit Suisse First Boston business unit.

2.		CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS) (a) ¨ (b) x

3.		SEC USE ONLY

4.		SOURCE OF FUNDS WC; OO

5.		CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) x

6.		CITIZENSHIP OR PLACE OF ORGANIZATION Switzerland

	7.	SOLE VOTING POWER See Item 5

NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH	8.	SHARED VOTING POWER See Item 5

	9.	SOLE DISPOSITIVE POWER See Item 5

	10.	SHARED DISPOSITIVE POWER See Item 5

11.		AGGREGATE AMOUNT BENEFICIALLY OWNED See Item 5

12.		CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES ¨

13.		PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) See Item 5

14.		TYPE OF REPORTING PERSON BK, HC

(Page 2 of 17 Pages)

Item 1—Security and Issuer

This Statement on Schedule 13D relates to the Common Stock, par value $0.001 per share (the “Common Stock”), of Concur Technologies, Inc., a Delaware corporation (the “Company”). The principal executive offices of the Company are located at 6222 185th Avenue N.E., Redmond, Washington 98052.

Item 2—Identity and Background

In accordance with Securities and Exchange Commission Release No. 34-39538 (January 12, 1998), this Schedule 13D is being filed by Credit Suisse First Boston (the “Bank”), a Swiss bank, on behalf of itself and its subsidiaries, to the extent that they constitute the Credit Suisse First Boston business unit (the “CSFB business unit”) excluding Asset Management (as defined below) (the “Reporting Person”). The CSFB business unit is also comprised of an asset management business principally conducted under the brand name Credit Suisse Asset Management (“Asset Management”). The Reporting Person provides financial advisory and capital raising services, sales and trading for users and suppliers of capital around the world and invests in and manages private equity and venture capital funds. Asset Management provides asset management and investment advisory services to institutional, mutual fund and private investors worldwide. The address of the Bank’s principal business and office is Uetlibergstrasse 231, P.O. Box 900, CH 8070 Zurich, Switzerland. The address of the Reporting Person’s principal business and office in the United States is Eleven Madison Avenue, New York, New York 10010.

The Bank owns directly a majority of the voting stock, and all of the non-voting stock, of Credit Suisse First Boston, Inc. (“CSFBI”), a Delaware corporation. The address of CSFBI’s principal business and office is Eleven Madison Avenue, New York, New York 10010. The ultimate parent company of the Bank and CSFBI, and the direct owner of the remainder of the voting stock of CSFBI, is Credit Suisse Group (“CSG”), a corporation formed under the laws of Switzerland.

CSFBI owns all of the voting stock of Credit Suisse First Boston (USA), Inc. (“CSFB-USA”), a Delaware Corporation corporation and holding company. Credit Suisse First Boston LLC (“CSFB LLC”), a Delaware limited liability company, is a registered broker-dealer and the successor company of Credit Suisse First Boston Corporation (“CSFBC”). CSFB-USA is the sole member of CSFB LLC. The address of the principal business and office of each of CSFB-USA, and CSFB LLC is Eleven Madison Avenue, New York, New York 10010.

CSG is a global financial services company with two distinct business units. In addition to the CSFB business unit, CSG and its consolidated subsidiaries are comprised of the Credit Suisse Financial Services business unit (the “Credit Suisse Financial Services business unit”). CSG’s business address is Paradeplatz 8, P.O. Box 1, CH 8070 Zurich, Switzerland.

CSG, for purposes of the federal securities laws, may be deemed ultimately to control the Bank and the Reporting Person. CSG, its executive officers and directors, and its direct and indirect subsidiaries (including Asset Management and the Credit Suisse Financial Services business unit) may beneficially own shares of Common Stock to which this Statement relates and

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such shares are not reported in this Statement. CSG disclaims beneficial ownership of Common Stock beneficially owned by its direct and indirect subsidiaries, including the Reporting Person. The Reporting Person disclaims beneficial ownership of Common Stock beneficially owned by CSG, Asset Management and the Credit Suisse Financial Services business unit.

DLJ ESC II, L.P. (“ESC II”), Sprout Capital VIII, L.P. (“Sprout Capital VIII”) and Sprout Venture Capital, L.P. (“Sprout VC”) are Delaware limited partnerships which make investments for long term appreciation.

DLJ Capital Corporation (“DLJCC”), a Delaware corporation and a wholly owned subsidiary of CSFB-USA, acts as a venture capital partnership management company and makes investments for long term appreciation. DLJCC is also the managing general partner of Sprout Capital VIII and Sprout VC and, as such, is responsible for their day to day management. DLJCC makes all of the investment decisions on behalf of Sprout VC. DLJCC, ESC II, Sprout Capital VIII and Sprout VC are each referred to as a “Purchasing Entity” and collectively as the “Purchasing Entities.”

DLJ Associates VIII, L.P. (“DLJ Associates VIII”), a Delaware limited partnership and a general partner of Sprout VIII and in accordance with the terms of the relevant partnership agreement, does not participate in investment decisions made on behalf of Sprout VIII. DLJ Capital Associates VIII, Inc. (“DLJ Capital Associates VIII”), a Delaware corporation and a wholly-owned subsidiary of DLJCC, is the managing general partner of DLJ Associates VIII.

DLJ LBO Plans Management Corporation (“DLJLBO”), a Delaware corporation, is the managing general partner of ESC II and, as such, is responsible for its day to day management. DLJLBO makes all of the investment decisions on behalf of ESC II. DLJLBO is a wholly-owned subsidiary of Credit Suisse First Boston Private Equity, Inc. (“CSFBPE”), a Delaware corporation, which, in turn, is a wholly-owned subsidiary of CSFB-USA.

The Purchasing Entities, DLJLBO, CSFBPE, DLJ Associates VIII and DLJ Capital Associates VIII are collectively referred to as the “CSFB Entities.”

The name, business address, citizenship, title of each executive officer or director of the Reporting Person, CSFBI, CSFB-USA, CSFBPE and those CSFB Entities that are corporations are set forth on Schedules A-1 through Schedules A-7 attached hereto, each of which is incorporated by reference herein.

Except as otherwise provided herein, during the past (5) years none of the Reporting Person, CSFBI, CSFB-USA, the CSFB Entities nor, to the best knowledge of the Reporting Person, any of the other persons listed on Schedules A-1 through A-7 attached hereto, has been (i) convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) or (ii) a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to United States federal or state securities laws or finding any violation with respect to such laws.

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On January 22, 2002, CSFBC, without admitting or denying any alleged violation, entered into coordinated settlements with NASD Regulation, Inc. (“NASDR”) and the Securities and Exchange Commission (“SEC”) resolving all outstanding investigations of CSFBC into the allocation of shares in initial public offerings (“IPOs”). CSFB-USA was then the sole stockholder of CSFBC.

CSFBC consented to these settlements without admitting or denying any of the allegations made in the SEC’s Complaint or the Letter of Acceptance, Waiver and Consent (“AWC”) filed with the NASDR. The SEC and NASDR alleged that, between April 1999 and June 2000, certain CSFBC employees allocated many shares in IPOs to over 100 customers with whom they had improper profit-sharing arrangements. The NASDR and SEC alleged that certain employees allocated “hot” IPO shares to certain customers who paid the Firm a portion of the profits (between 33 and 65 percent) that they made when they sold their IPO stock, by paying inflated brokerage commissions on transactions unrelated to the IPO shares.

Under the terms of the coordinated settlement:

•

CSFBC paid a total of $100 million. This amount included $30 million in fines and civil penalties divided evenly between the SEC and NASDR, and a total of $70 million in disgorgement, $35 million of which was paid to the U.S. Treasury and $35 million of which was paid to the NASDR, representing the monies obtained as a result of the conduct described by the SEC and NASDR. The SEC determined in this case that it was appropriate and in the public interest to pay funds to the U.S. Treasury rather than to any third parties.

•

CSFBC has adopted and is implementing revised policies and procedures for allocating IPOs in its broker-dealer operations. The SEC and NASD have reviewed these policies and procedures. These included the establishment of an IPO Allocation Review Committee, a process for the pre-qualification of accounts before they are eligible to receive IPO allocations, and enhanced supervisory procedures, which may include the review of commissions paid by certain accounts receiving allocations around the time of the IPO. CSFBC also agreed to retain an independent consultant to review the implementation of these policies and procedures one year from the date of the settlement.

In the NASDR settlement, CSFBC, without admitting or denying any findings, consented to a censure and findings that it violated NASD Rules 2110, 2330, 2710, 3010 and 3110. These Rules (a) require broker-dealers to adhere to just and equitable principles of trade, (b) prohibit broker-dealers from sharing in the profits of client accounts except as specifically provided, (c) require a managing underwriter to file certain information that may have a bearing on the NASDR’s review of underwriting arrangements, (d) require members to establish, maintain and enforce a reasonable supervisory system, and (e) require broker-dealers to maintain certain books and records.

The NASDR AWC also found violations of Section 17(a) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and SEC Rule 17a-3, thereunder, which are

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incorporated by NASD Rule 3110 and similarly impose certain record keeping requirements on CSFBC as a broker-dealer. In the SEC settlement, CSFBC, without admitting or denying the allegations of the Complaint, consented to entry by the District Court for the District of Columbia of a final judgment that: (1) permanently enjoined CSFBC, directly or indirectly, from violations of NASD Conduct Rules 2110 and 2330 and Section 17(a)(1) of the Exchange Act and SEC Rule 17a-3; and (2) ordered CSFBC to comply with certain undertakings.

Neither the SEC nor NASDR made any allegations or findings of fraudulent conduct by CSFBC. Further, neither the SEC nor NASDR alleged that any IPO prospectus was rendered false or misleading by CSFBC’s conduct or that this conduct affected either the offering price of an IPO or the price at which any IPO stock traded in the aftermarket.

On November 26, 1996, the SEC brought a civil action in federal court in California against CS First Boston Corporation (“CS First Boston”) CSFBC and two former employees of its public finance department relating to CS First Boston CSFBC’s role as lead underwriter of a September 1994 Orange County pension obligation bond (“POB”) financing, which the county completed 10 weeks prior to its bankruptcy. The SEC alleged that the Official Statement misrepresented and omitted material facts about the Orange County Investment Pool, including the Pool’s investment strategy, the risks of that strategy and the Pool’s investment losses, and it sought to hold CS First Boston CSFBC responsible for the alleged omissions and misrepresentations. The complaint alleged violations of certain anti-fraud provisions, including Section 17(a) of the Securities Act, Section 10(b) of the Exchange Act and Rule 10b-5 thereunder, Section 15B(c)(1) of the Exchange Act, and MSRB Rule G-17. CS First Boston CSFBC filed its answer to the complaint on January 13, 1997, in which it denied all allegations of misconduct and asserted twelve affirmative defenses.

On January 29, 1998, the lawsuit was dismissed with prejudice, upon the consent of the SEC, CS First Boston CSFBC and the individual defendants, as part of an out-of-court settlement of this matter. Also pursuant to that settlement, CS First Boston CSFBC and the individual defendants, without admitting or denying liability, consented to the entry of a SEC administrative order finding negligence-based violations of Sections 17(a)(2) and (a)(3) of the Securities Act and MSRB Rule G-17. CS First Boston and the two individuals agreed to pay monetary penalties of $800,000, $35,000 and $35,000 respectively. The SEC administrative order contained no allegation or finding of any fraudulent, intentional or reckless misconduct by CS First Boston CSFBC or any of its current or former employees.

Item 3—Source and Amount of Funds or Other Consideration

The Purchasing Entities acquired from the Company an aggregate of 1,452,619 shares of Common Stock on July 31, 2002 in connection with the acquisition (the “Acquisition”) by the Company of Captura Software, Inc., a Delaware corporation (“Captura”), pursuant to an Agreement and Plan of Reorganization, dated as of July 31, 2002 (the “Merger Agreement”), by and among the Company, Canoe Acquisition Corp., a Delaware corporation, and Captura, as amendment by Amendment to Agreement and Plan of Reorganization, dated as of December 16, 2002, by and among the Company, Concur, Fred Harman, as Representative, and certain former shareholders of Captura party thereto (the “Amendment”). Copies of the Merger Agreement and the Amendment are attached hereto as Exhibits 1 and 2, respectively, and incorporated herein by reference. In the Acquisition, DLJCC received 10,894 shares of Common Stock in exchange for the 56,406 shares of Series 3 Preferred Stock of Captura (“Captura Preferred Stock”) held by it prior to the Acquisition, ESC II received 104,630 shares of Common Stock in exchange for the 541,726 shares of Captura Preferred Stock held by it, Sprout Capital VIII received 1,264,061 shares of Common Stock in exchange for the 6,544,715 shares of Captura Preferred Stock held by it, and Sprout VC received 73,034 shares of Common Stock in exchange for the 378,139 shares of Captura Preferred Stock held by it.

On August 22, 2002, the Purchasing Entities acquired a further 459,636 shares (the “Subsequent Shares”) of Common Stock from entities affiliated with Oak Investment Partners. In that transaction, DLJCC acquired 3,447 shares, ESC II acquired 33,107 shares, Sprout Capital VIII acquired 399,973 shares and Sprout VC acquired 23,109 shares.

As of March 4, 2003, the Reporting Person, CSFBI and CSFB-USA may be deemed to beneficially own, through the Purchasing Entities 1,912,255 shares of Common Stock.

The funds used by the Purchasing Entities that are limited partnerships to purchase the Subsequent Shares were obtained by such entities from capital contributions by their partners and from the available funds of such entities. The funds used by DLJCC to purchase the Subsequent Shares were obtained from working capital of DLJCC and its affiliates.

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Item 4—Purpose of Transaction

The Purchasing Entities purchased the shares of Common Stock for general investment purposes. The Purchasing Entities retain the right to change their investment intent. In connection with the Acquisition, Robert Finzi, a Board Member and Managing Director of DLJCC and Board Member and Vice President of DLJ Capital Associates VIII, was designated a director of the Company.

The Reporting Person intends to review from time to time the Company’s business affairs and financial position. Based on such evaluation and review, as well as general economic and industry conditions existing at the time, the Reporting Person may consider from time to time various alternative courses of action. Such actions may include the acquisition of additional shares of Common Stock or other securities through open market purchases, privately negotiated transactions, a tender offer, an exchange offer or otherwise. Alternatively, such actions may involve the sale of all or a portion of the shares of Common Stock or other securities in the open market, in privately negotiated transactions, through a public offering or otherwise.

Except as set forth herein (including without limitation Item 6 hereof) or attached hereto, none of the Reporting Person, CSFBI, CSFB-USA, the CSFB Entities nor, to the best knowledge of the Reporting Person, any of the other persons listed on Schedules A-1 through A-7 attached hereto, have any plans or proposals that relate to or would result in any of the transactions described in subparagraphs (a) through (j) of Item 4 of Schedule 13D.

Item 5—Interest in Securities of the Issuer

(a) Based on information provided by the Company, there were 30,995,680 shares of Common Stock outstanding as of February 5, 2003.

As of March 4, 2003, DLJCC directly owns an aggregate of 14,341 shares of Common Stock, and as the managing general partner of Sprout Capital VIII and Sprout VC, may be deemed to beneficially own an additional 1,760,177 shares of Common Stock, which represents in the aggregate approximately 5.7% of the outstanding Common Stock.

As of March 4, 2003, ESC II beneficially owns, and DLJLBO, as its general partner, and CSFBPE, as the controlling entity of DLJLBO, may be deemed to beneficially own, an aggregate of 137,737 shares of Common Stock, which represents in the aggregate approximately 0.4% of the outstanding Common Stock.

As of March 4, 2003, Sprout Capital VIII beneficially owns, and DLJ Associates VIII, as its general partner, and DLJ Capital Associates VIII, as the controlling entity of DLJ Associates VIII, may be deemed to beneficially own, an aggregate of 1,664,034 shares of Common Stock, which represents approximately 5.4% of the outstanding Common Stock.

As of March 4, 2003, Sprout VC beneficially owns an aggregate of 96,143 shares, which represents approximately 0.3% of the outstanding Common Stock.

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As of March 4, 2003, the Reporting Person, CSFBI and CSFB-USA may be deemed to beneficially own an aggregate of 1,912,255 shares of Common Stock, which represents approximately 6.2% of the outstanding Common Stock, and consists of the 1,912,255 shares beneficially owned by the Purchasing Entities as described above.

To the best knowledge of the Reporting Person, and except as described herein, neither the Reporting Person, CSFBI, CSFB-USA, or any of the CSFB Entities nor, to the best knowledge of the Reporting Person, any other persons listed on Schedules A-1 through A-7 attached hereto, beneficially owns any Common Stock.

(b) There is shared power to vote or to direct the vote, and shared power to dispose or to direct the disposition, as to all shares of Common Stock referenced in paragraph 5(a).

(c) To the best knowledge of the Reporting Person, neither the Reporting Person, CSFBI, CSFB-USA, the CSFB Entities nor, to the best knowledge of the Reporting Person, any other persons listed on Schedules A-1 through A-7 attached hereto, has effected any transactions in the Common Stock during the past 60 days.

(d) No other person is known by the Reporting Person to have such right or power with respect to shares of Common Stock beneficially owned by the Reporting Person, CSFBI, CSFB-USA, or the CSFB Entities.

(e) Inapplicable.

Item 6—Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer

Pursuant to a Declaration of Registration Rights (the “Registration Rights Declaration”) executed in connection with the Acquisition, the Purchasing Entities have certain registration rights under the Securities Act of 1933, as amended, with respect to the shares of Common Stock received by them in the Acquisition (“Registrable Securities”). On February 18, 2003, the Company filed a shelf registration statement on Form S-3 covering the resale of the share of Common Stock received by the Purchasing Entities and other stockholders of Captura in the Acquisition pursuant to its obligations under the Registration Rights Declaration. The Company has agreed to use commercially reasonable efforts to cause the registration statement to become effective on or prior to April 30, 2003, and to use reasonable best efforts to keep the registration statement effective until the earliest of (i) the date on which the stockholders shall have sold all of their Registrable Securities and (ii) July 31, 2003. All expenses incurred in connection with such registrations (other than underwriters’ discounts and commissions, but including the fees and disbursements of Company counsel) will be borne by the Company. The selling stockholders will bear the cost of underwriters’ discounts and commissions with respect to their shares. The Registration Rights Declaration contains customary cross-indemnification obligations. The Company also agreed to use commercially reasonable efforts to cause the Third Amended and Restated Information Rights Agreement, dated as of May 26, 1999, by and among the Company and the other parties thereto, as amended by an amendment dated March 23, 2000, so as to provide the Purchasing Entities and other stockholders of Captura with certain rights of holders of registrable securities pursuant thereto.

(Page 8 of 17 Pages)

Pursuant to an investment representation letter agreement (the “Investment Representation Agreement”) entered into in connection with the Acquisition, the Purchasing Entities have agreed (i) not to transfer any of their shares of Common Stock received in the Acquisition until April 30, 2003, and (ii) thereafter until July 31, 2003, not to transfer any such shares other than in a transfer arranged with the Company.

The descriptions contained in this Statement of the Merger Agreement, the Amendment, the Declaration of Registration Rights and the Investment Representation Agreement are qualified in their entirety by reference to the applicable documents, copies or forms of which are filed as Exhibits 1, 2, 3 and 4 hereto, respectively, and are incorporated herein by reference.

Except for the agreements described above, to the best knowledge of the Reporting Person, there are no contracts, arrangements, understandings or relationships (legal or otherwise), including, but not limited to, transfer or voting of any of the securities, finder’s fees, joint ventures, loan or option arrangements, puts or calls, guarantees of profits, division of profits or loss, or the giving or withholding of proxies, between the persons enumerated in Item 2, and any other person, with respect to any securities of the Company, including any securities pledged or otherwise subject to a contingency the occurrence of which would give another person voting power or investment power over such securities other than standard default and similar provisions contained in loan agreements.

Item 7—Material to be Filed as Exhibits


Exhibit 1		Agreement and Plan of Reorganization, dated as of July 31, 2002, by and between the Company, Canoe Acquisition Corp., a Delaware corporation, and Captura (previously filed with the SEC as Exhibit 2.01 to, and incorporated herein by reference from, the Company’s Current Report on Form 8-K, filed on August 14, 2002).

Exhibit 2		Amendment to Agreement and Plan of Reorganization, dated as of December 16, 2002, by and among the Company, Concur, Fred Harman, as Representative, and certain former shareholders of Captura party thereto (previously filed with the SEC as Exhibit 2.01 to, and incorporated herein by reference from, the Company’s Current Report on Form 8-K, filed on December 19, 2002).

Exhibit 3		Form of Declaration of Registration Rights by the Company in favor of the stockholders of the Company listed on Exhibit A thereto.

Exhibit 4		Form of Investment Representation Agreement.

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Signature

After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.

Date: March 4, 2003	CREDIT SUISSE FIRST BOSTON, acting solely on behalf of the Credit Suisse First Boston business unit

	By:	/s/ IVY B. DODES
		Name: Ivy B. Dodes
		Title: Managing Director

(Page 10 of 17 Pages)

SCHEDULE A-1

EXECUTIVE OFFICERS AND DIRECTORS

THE REPORTING PERSON

The following sets forth the name, business address, present principal occupation and citizenship of each director and executive officer of the Reporting Person. The business address of the Reporting Person is 11 Madison Avenue, New York, New York 10010.

Name	Business Address	Title	Citizenship
John J. Mack	Eleven Madison Avenue New York, NY 10010 USA	Chief Executive Officer, Chairman	United States

Christopher Carter	Eleven Madison Avenue New York, NY 10010 USA	Chairman of Europe	Great Britain

Brady W. Dougan	Eleven Madison Avenue New York, NY 10010 USA	Co-President, Institutional Securities	United States

Stephen R. Volk	Eleven Madison Avenue New York, NY 10010 USA	Chairman of CSFB	United States

Thomas R. Nides	Eleven Madison Avenue New York, NY 10010 USA	Chief Administrative Officer	United States

Hector W. Sants	One Cabot Square London, England	Chief Executive Officer and Assistant Vice Chairman of European Region	Great Britain

Richard E. Thornburgh	Eleven Madison Avenue New York, NY 10010 USA	Chief Risk Officer of Credit Suisse Group	United States

Adebayo Ogunlesi	Eleven Madison Avenue New York, NY 10010 USA	Global Head of Investment Banking	Nigeria

Eileen K. Murray	Eleven Madison Avenue New York, NY 10010 USA	Head of Global Technology, Operations and Product Control	United States

Brian Finn	Eleven Madison Avenue New York, NY 10010 USA	Member of CSFB Office of the Chairman	United States

Gary G. Lynch	Eleven Madison Avenue New York, NY 10010 USA	Global General Counsel and Vice Chairman to Oversee Research and Legal and Compliance Departments	United States

Paul Calello	Eleven Madison Avenue New York, NY 10010 USA	Chairman and Chief Executive Officer of the Asia-Pacific Region	United States

Michael Clark	Eleven Madison Avenue New York, NY 10010 USA	Co-Head of the Equity Division	United States

Bennett J. Goodman	Eleven Madison Avenue New York, NY 10010 USA	Chairman of Merchant Banking and Leverage Finance	United States

James P. Healy	Eleven Madison Avenue New York, NY 10010 USA	Co-Head of the Fixed Income Division	United States

James E. Kreitman	Eleven Madison Avenue New York, NY 10010 USA	Co-Head of the Equity Division	United States

Jeffrey M. Peek	Eleven Madison Avenue New York, NY 10010 USA	Vice Chairman and Head of Financial Services Division	United States

Jerry Wood	Eleven Madison Avenue New York, NY 10010 USA	Co-Head of the Fixed Income Division	United States

Barbara A. Yastine	Eleven Madison Avenue New York, NY 10010 USA	Chief Financial Officer	United States

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SCHEDULE A-2

EXECUTIVE OFFICERS AND DIRECTORS

CREDIT SUISSE FIRST BOSTON, INC.

The following sets forth the name, business address, present principal occupation and citizenship of each director and executive officer of Credit Suisse First Boston, Inc. The business address of Credit Suisse First Boston, Inc. is 11 Madison Avenue, New York, New York 10010.

Name	Business Address	Title	Citizenship
John J. Mack	Eleven Madison Avenue New York, NY 10010 USA	President, Chief Executive Officer and Board Member	United States

Stephen R. Volk	Eleven Madison Avenue New York, NY 10010 USA	Board Member	United States

Lewis H. Wirshba	Eleven Madison Avenue New York, NY 10010 USA	Managing Director and Treasurer	United States

David C. Fisher, M.D.	Eleven Madison Avenue New York, NY 10010 USA	Managing Director, Chief Accounting Officer and Controller	United States

Gary G. Lynch	Eleven Madison Avenue New York, NY 10010 USA	Managing Director and General Counsel	United States

Robert C. O’Brien	Eleven Madison Avenue New York, NY 10010 USA	Managing Director and Chief Credit Officer	United States

Brady W. Dougan	Eleven Madison Avenue New York, NY 10010 USA	Managing Director	United States

D. Wilson Ervin	Eleven Madison Avenue New York, NY 10010 USA	Managing Director	United States

Neil Moskowitz	Eleven Madison Avenue New York, NY 10010 USA	Managing Director	United States

Eileen K. Murray	Eleven Madison Avenue New York, NY 10010 USA	Managing Director	United States

David C. O’Leary	Eleven Madison Avenue New York, NY 10010 USA	Managing Director	United States

Adebayo O. Ogunlesi	Eleven Madison Avenue New York, NY 10010 USA	Managing Director	Nigeria

Carlos Onis	Eleven Madison Avenue New York, NY 10010 USA	Managing Director	United States

Jeffrey M. Peek	Eleven Madison Avenue New York, NY 10010 USA	Managing Director	United States

Neil Radey	Eleven Madison Avenue New York, NY 10010 USA	Managing Director	United States

Jeffrey H. Salzman	Eleven Madison Avenue New York, NY 10010 USA	Managing Director	United States

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SCHEDULE A-3

EXECUTIVE OFFICERS AND DIRECTORS

CREDIT SUISSE FIRST BOSTON (USA), INC.

The following sets forth the name, business address, present principal occupation and citizenship of each director and executive officer of Credit Suisse First Boston (USA), Inc. The business address of Credit Suisse First Boston (USA), Inc. is 11 Madison Avenue, New York, New York 10010.

Name	Business Address	Title	Citizenship
John J. Mack	Eleven Madison Avenue New York, NY 10010 USA	President, Chief Executive Officer and Board Member	United States

Stephen R. Volk	Eleven Madison Avenue New York, NY 10010 USA	Board Member and Managing Director	United States

Brady W. Dougan	Eleven Madison Avenue New York, NY 10010 USA	Head of Securities Division and Board Member	United States

Brian D. Finn	Eleven Madison Avenue New York, NY 10010 USA	Board Member	United States

Eileen K. Murray	Eleven Madison Avenue New York, NY 10010 USA	Board Member and Managing Director	United States

Adebayo O. Ogunlesi	Eleven Madison Avenue New York, NY 10010 USA	Board Member, Managing Director and Head of Global Investment Banking	Nigeria

Jeffrey M. Peek	Eleven Madison Avenue New York, NY 10010 USA	Board Member, Managing Director and Head of Financial Services Division	United States

Barbara A. Yastine	Eleven Madison Avenue New York, NY 10010 USA	Board Member	United States

David C. Fisher	Eleven Madison Avenue New York, NY 10010 USA	Chief Financial and Accounting Officer	United States

Gary G. Lynch	Eleven Madison Avenue New York, NY 10010 USA	Managing Director and General Counsel	United States

D. Wilson Ervin	Eleven Madison Avenue New York, NY 10010 USA	Head of Strategic Risk Management	United States

Neil Moskowitz	Eleven Madison Avenue New York, NY 10010 USA	Managing Director	United States

Carlos Onis	Eleven Madison Avenue New York, NY 10010 USA	Managing Director	United States

Neil Radey	Eleven Madison Avenue New York, NY 10010 USA	Managing Director	United States

Andrew B. Federbusch	Eleven Madison Avenue New York, NY 10010 USA	Managing Director	United States

Luther L. Terry, Jr.	Eleven Madison Avenue New York, NY 10010 USA	Managing Director	United States

(Page 13 of 17 Pages)

SCHEDULE A-4

EXECUTIVE OFFICERS AND DIRECTORS

CREDIT SUISSE FIRST BOSTON PRIVATE EQUITY, INC.

The following sets forth the name, business address, present principal occupation and citizenship of each director and executive officer of Credit Suisse First Boston Private Equity, Inc. The business address of Credit Suisse First Boston Private Equity, Inc. is 11 Madison Avenue, New York, New York 10010.

Name	Business Address	Title	Citizenship
Lawrence M.v.D. Schloss	Eleven Madison Avenue New York, NY 10010 USA	Board Member and Chief Executive Officer	United States

George R. Hornig	Eleven Madison Avenue New York, NY 10010 USA	Chief Operating Officer	United States

Edward A. Poletti	Eleven Madison Avenue New York, NY 10010 USA	Chief Financial Officer	United States

Nicole S. Arnaboldi	Eleven Madison Avenue New York, NY 10010 USA	Chief Operating Officer—Funds Management	United States

(Page 14 of 17 Pages)

SCHEDULE A-5

EXECUTIVE OFFICERS AND DIRECTORS

DLJ LBO PLANS MANAGEMENT CORPORATION

The following sets forth the name, business address, present principal occupation and citizenship of each director and executive officer of DLJ LBO Plans Management Corporation. The business address of DLJ LBO Plans Management Corporation is 11 Madison Avenue, New York, New York 10010.

Name	Business Address	Title	Citizenship
George R. Hornig	Eleven Madison Avenue New York, NY 10010 USA	Board Member and President	United States

Joseph F. Huber	Eleven Madison Avenue New York, NY 10010 USA	Board Member and Vice President	United States

David C. O’Leary	Eleven Madison Avenue New York, NY 10010 USA	Board Member and Vice President	United States

Edward A. Poletti	Eleven Madison Avenue New York, NY 10010 USA	Senior Vice President and Controller	United States

Ivy B. Dodes	Eleven Madison Avenue New York, NY 10010 USA	Vice President	United States

Craig L. Slutzkin	Eleven Madison Avenue New York, NY 10010 USA	Vice President	United States

(Page 15 of 17 Pages)

SCHEDULE A-6

EXECUTIVE OFFICERS AND DIRECTORS

DLJ CAPITAL CORPORATION

The following sets forth the name, business address, present principal occupation and citizenship of each director and executive officer of DLJ Capital Corporation. The business address of DLJ Capital Corporation is 11 Madison Avenue, New York, New York 10010.

Name	Business Address	Title	Citizenship
Keith B. Geeslin	Eleven Madison Avenue New York, NY 10010 USA	Board Member, Chairman and Managing Director	United States

Robert Finzi	Eleven Madison Avenue New York, NY 10010 USA	Board Member and Managing Director	United States

Raymond M. Disco	Eleven Madison Avenue New York, NY 10010 USA	Board Member and Treasurer	United States

George R. Hornig	Eleven Madison Avenue New York, NY 10010 USA	President	United States

Stephen M. Diamond	Eleven Madison Avenue New York, NY 10010 USA	Managing Director	United States

Janet A. Hickey	Eleven Madison Avenue New York, NY 10010 USA	Managing Director	United States

Kathleen LaPorte	Eleven Madison Avenue New York, NY 10010 USA	Managing Director	United States

Alexander Rosen	Eleven Madison Avenue New York, NY 10010 USA	Managing Director	United States

Nicole S. Arnaboldi	Eleven Madison Avenue New York, NY 10010 USA	Managing Director	United States

Philippe Chambon	Eleven Madison Avenue New York, NY 10010 USA	Managing Director	France

(Page 16 of 17 Pages)

SCHEDULE A-7

EXECUTIVE OFFICERS AND DIRECTORS

DLJ CAPITAL ASSOCIATES VIII, INC.

The following sets forth the name, business address, present principal occupation and citizenship of each director and executive officer of DLJ Capital Associates VIII, Inc. The business address of DLJ Capital Associates VIII, Inc. is 11 Madison Avenue, New York, New York 10010.

Name	Business Address	Title	Citizenship
Keith B. Geeslin	Eleven Madison Avenue New York, NY 10010 USA	Board Member and President	United States

Robert Finzi	Eleven Madison Avenue New York, NY 10010 USA	Board Member and Vice President	United States

George R. Hornig	Eleven Madison Avenue New York, NY 10010 USA	Board Member	United States

(Page 17 of 17 Pages)

EX-3 3 dex3.htm DECLARATION OF REGISTRATION RIGHTS Declaration of Registration Rights

EXHIBIT 3

DECLARATION OF REGISTRATION RIGHTS

This DECLARATION OF REGISTRATION RIGHTS (this “Agreement”) is made as of July 31, 2002 by Concur Technologies, Inc., a Delaware corporation (“Acquirer”), for the benefit of the stockholders of Captura Software, Inc., a Delaware corporation (the “Company”) listed on Exhibit A to this Agreement (collectively, the “Stockholders” and each, individually, a “Stockholder”), that are acquiring shares (the “Shares”) of Acquirer’s common stock, $0.001 par value per share (the “Common Stock”), pursuant to the terms of that certain Agreement and Plan of Reorganization dated of even date herewith (the “Merger Agreement”) by and among Acquirer, Canoe Acquisition Corp., a Delaware corporation and a wholly-owned subsidiary of Acquirer, the Company and Fred Harman, as representative of the Stockholders.

1. Shelf Registration Right on Form S-3.

1.1 Certain Definitions. For purposes of this Agreement:

“register,” “registered” and “registration” refer to a registration effected by preparing and filing a registration statement in compliance with the Securities Act of 1933, as amended (the “Securities Act”) and the declaration or ordering of effectiveness of such registration statement.

“Form S-3” means a registration statement filed under Form S-3 under the Securities Act, as such is in effect at the Effective Time, or any successor form of registration statement under the Securities Act subsequently adopted by the Securities and Exchange Commission (the “SEC”) which permits inclusion or incorporation of a substantial amount of information by reference to other documents filed by Acquirer with the SEC.

“Rule 415” means Rule 415 promulgated under the Securities Act, as such rule may be amended from time to time, or any similar or successor rule or regulation hereafter adopted by the SEC.

1.2 Form S-3 Shelf Registration.

(a) Shelf Registration Statement. On or before January 31, 2003, Acquirer shall prepare and file with the SEC a registration statement covering all Shares (the “Registrable Securities”) on Form S-3 for an offering to be made on a continuous basis pursuant to Rule 415 under the Securities Act (the “Registration Statement”; the prospectus, including any preliminary prospectus, final prospectus and any supplement thereto, is referred to as the “Prospectus”), and shall use commercially reasonable efforts to cause the Registration Statement to be declared effective by the SEC on the ninth-month anniversary of the Effective Time (as defined in the Merger Agreement), or as promptly practicable thereafter. The Registration Statement shall comply as to form in all material respects with the requirements of the Securities Act and the rules and regulations promulgated thereunder, permitting the registration and resale of such Registrable Securities by the Stockholders in the manner designated by it (including, without limitation, through underwritten public offerings). Acquirer shall use commercially reasonable efforts to keep the Registration Statement effective (subject to Section 1.3 hereof)

until the earliest of (i) the date on which the Stockholders shall have sold all of the Registrable Securities and (ii) the first anniversary of the Effective Time (such period of time being hereinafter referred to as the “Effective Period”). If the Registration Statement ceases to be effective for any reason at any time during the Effective Period (other than because of the sale of all of the securities registered thereunder or as permitted by Section 1.3 hereof), Acquirer shall use its best efforts to obtain the prompt withdrawal of any order suspending the effectiveness thereof.

(b) Supplements and Amendments. During the Effective Period, Acquirer shall supplement and amend the Registration Statement and the Prospectus if, as and when required by the Securities Act and the rules and regulations promulgated thereunder.

(c) Timing and Manner of Sales. Any sale of Registrable Securities pursuant to a Registration Statement under this Section 1.2 may only be made if in accordance with the method or methods of distribution of such Registrable Securities that are described in the Registration Statement or the Prospectus and permitted by such form of registration statement. Subject to any other agreements between the Stockholders and Acquirer, a Stockholder may also sell Registrable Securities in a bona fide private offering if the selling Stockholder provides Acquirer with a written opinion of counsel, satisfactory to counsel to Acquirer acting in a reasonable manner and upon which such opinion Acquirer is permitted to rely, that such offer and sale is an exempt transaction under the Securities Act and applicable state securities laws, complies with all requirements for such exemptions and is not made with use of the Prospectus or the Registration Statement.

(d) Market Standoff. Each Stockholder agrees that the Stockholder shall not make any sale, transfer or other disposition of the Restricted Securities for a period of nine months from the Effective Time (the “Lock-Up Period”); provided, however, that the foregoing restriction is expressly agreed to preclude the Stockholder from engaging in any hedging or other transaction which is designed to or which reasonably could be expected to lead to or result in a sale or disposition of the Stockholder’s Restricted Securities, even if such Restricted Securities would be disposed of by someone other than the Stockholder; provided, further, that notwithstanding the foregoing, a Stockholder may transfer the Stockholder’s Restricted Securities during the Lock-Up Period (i) as a bona fide gift or gifts, provided that the donee or donees thereof agree to be bound in writing by the restrictions set forth herein, (ii) to any trust for the direct or indirect benefit of the Stockholder or the Stockholder’s immediate family, provided that the trustee of the trust agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not shall not involve a disposition for value, or (iii) with the prior written consent of Acquirer; provided, further, that the foregoing restriction shall not apply to those Restricted Securities registered under a registration statement effected pursuant to Section 2 hereof, but shall apply (or continue to apply, as the case may be) to any Restricted Securities not so registered, even if a portion of Stockholder’s Restricted Securities have been so registered. Notwithstanding anything contained in this Agreement to the contrary, Stockholder may not transfer Stockholder’s Restricted Securities during the Lock-Up Period (i) to an affiliate of Stockholder, or (ii) to any transferee who is a partner (general or limited, active or retired (who retires after the date hereto)), a current or former member, or a stockholder of Stockholder that is a partnership, limited liability company or corporation, respectively. Following the expiration of the Lock-Up Period, Stockholder shall not make any

sale, transfer or other disposition of Stockholder’s Restricted Securities in violation of the Securities Act or the rules and regulations promulgated thereunder.

For purposes of this Section 1.2(d) “hedging or other transactions” shall include without limitation any short sale or any purchase, sale or grant of any right (including without limitation any put or call option) with respect to any of the Stockholder’s Restricted Securities or with respect to any security that includes, relates to, or derives any significant part of its value from such Restricted Securities. Also for purposes of this Section 1.2(d), “immediate family” shall mean any relationship by blood, marriage or adoption, not more distant than first cousin (or first cousin of spouse).

1.3 Limitations. Notwithstanding the provisions of Section 1.2 above, no Stockholder shall be entitled to sell Registrable Securities pursuant to any registration statement filed under Section 1.2 of this Agreement, under the following circumstances:

(a) if Form S-3 is not then available for such offering by the Stockholders;

(b) if Acquirer is acquired and the Common Stock ceases to be publicly traded;

(c) in any particular jurisdiction in which Acquirer would be required to qualify to do business or to execute a general consent to service of process in effecting such registration, qualification or compliance, unless Acquirer is already subject to service of process in such jurisdiction; or

(d) if the SEC refuses to declare such registration (or any amendment) effective due to the participation of any particular Stockholder in such registration (unless such Stockholder withdraws all such Stockholder’s Registrable Securities from such registration statement); or if the manner in which any Registrable Securities are disposed of pursuant to the Registration Statement is not included within the plan of distribution set forth in the Prospectus.

1.4 Private Transfers. Each Stockholder agrees that except as otherwise contemplated by this Section 1, any sale, transfer or other disposition of any Registrable Securities may only be effected if (a) in the opinion of counsel to Acquirer, reasonably held, all such Registrable Securities proposed to be sold by such Stockholder may be sold in a three-month period without registration under the Securities Act, pursuant to Rule 144 under the Securities Act or otherwise; (b) Acquirer or its legal counsel shall have received a “no-action” letter or similar written confirmation from the SEC that all the Registrable Securities proposed to be sold by such Stockholder may be sold in a three-month period without registration under the Securities Act, pursuant to Rule 144 under the Securities Act or otherwise; (c) only one broker/dealer is used to effect any such sales at any one time; and (d) such sale, transfer or other disposition does not result, to the knowledge of each Stockholder (after reasonable inquiry), in any single person or group owning 5% or more of Acquirer’s then outstanding Common Stock.

1.5 Termination of Acquirer’s Obligations. Acquirer shall have no obligations pursuant to Section 1.2 or other request or requests for registration (or inclusion in a registration) made by any Stockholder nor shall Acquirer have any obligation to maintain or

continue to keep effective any registration or registration statement pursuant thereto: (a) after the expiration or termination of the Effective Period; (b) with respect to a particular Stockholder if, Acquirer or its counsel has received a “no-action” letter described in Section 1.4(b) or the opinion of counsel submitted to Acquirer pursuant to Section 1.4(a) is acceptable; or (c) if all Registrable Securities have been registered and sold pursuant to a registration(s) effected pursuant to this Agreement and/or have been transferred in transactions in which registration rights hereunder have not been assigned in accordance with this Agreement.

1.6 Expenses. All expenses incurred in connection with a registration pursuant to this Section 1, including without limitation all printers’ and accounting fees, SEC filing fees, fees and disbursements of counsel for Acquirer, shall be borne by Acquirer. Each Stockholder participating in a registration pursuant to this Section 1 shall bear such Stockholder’s proportionate share (based on the number of Registrable Securities sold by such Stockholder over the total number of shares included in such registration at the time it goes effective) of all discounts, commissions or other amounts payable to underwriters or brokers in connection with such offering, the fees and disbursements of any counsel for the participating Stockholders and any transfer taxes relating to the sale, transfer or other disposition of the Registrable Securities.

1.7 Registration Obligations of Acquirer. Subject to Sections 1.2, 1.3 and 1.4 above, when required to effect the registration of any Registrable Securities under the terms of this Agreement, Acquirer shall, as expeditiously as reasonably possible:

(a) furnish to each Stockholder and each underwriter such number of conformed copies of the Prospectus, including each preliminary prospectus, final prospectus and amendments or supplements thereto, in conformity with the requirements of the Securities Act, and such other documents as each Stockholder (or underwriter) may reasonably request;

(b) notify each Stockholder promptly and, if requested by such Stockholder, confirm such notification in writing promptly (i) when a registration statement has become effective and when any post-effective amendments and supplements thereto become effective, (ii) of any request made by the SEC or any state securities authority for post-effective amendments and supplements to a registration statement that has become effective, (iii) of the issuance by the SEC or any state securities authority of any stop order suspending the effectiveness of a registration statement or the initiation of any proceedings for that purpose, (iv) of the receipt by Acquirer of any notification with respect to the suspension of the qualification of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose, and (v) of any determination by Acquirer that a post-effective amendment to a registration statement would be appropriate;

(c) use reasonable efforts to register and qualify the Registrable Securities by the time the applicable Registration Statement is declared effective by the SEC under all applicable state securities or “blue sky” laws of such jurisdictions as the Stockholders shall reasonably request in writing, to keep each such registration and qualification effective during the Effective Period; provided, however, that Acquirer will not be required to (i) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this paragraph (c), (ii) subject itself to taxation in any jurisdiction, or (iii) consent to general service of process in any such jurisdiction, except as may be required by the Securities Act;

(d) promptly notify each Stockholder covered by such Registration Statement when a prospectus relating thereto is required to be delivered under the Securities Act, of the happening of any event as a result of which the Prospectus included in such Registration Statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing and, subject to the provisions of this Agreement, at the request of any Stockholder, prepare and furnish to each Stockholder a reasonable number of copies of a supplement to or an amendment of the prospectus as may be necessary to correct the untrue statement or omission;

(e) use reasonable efforts to cause all such Registrable Securities to be listed on the Nasdaq National Market and each securities exchange on which similar securities issued by Acquirer are then listed;

(f) upon the request of any Stockholder, promptly provide the name, address and other contact information regarding Acquirer’s transfer agent for the Registrable Securities and the CUSIP number for the Registrable Securities;

(g) if the lead managing underwriter of a registration pursuant to this Section I advises Acquirer that, in its judgment, the number of shares of Common Stock proposed to be included in such underwritten public offering should be limited due to market conditions, then Acquirer will promptly so advise each participating Stockholder; and Acquirer and each participating Stockholder will include in such offering the number of shares which, in the opinion of the lead managing underwriter can be sold (the “Maximum Offering Amount”). The Maximum Offering Amount shall be allocated first, to the Stockholders to the full extent of shares of Shares such Stockholder desires to sell, and second, if any shares of Common Stock remain under the Maximum Offering Amount, to each other participating holder in proportion to each request for inclusion made by each such participating holder. If the underwriting agreement executed in connection with such offering provides for an overallotment option to be granted to the underwriters, and if such option is exercised by the underwriters, the allocation priority established by the previous sentence shall govern the allocation with respect to the sale of any shares of Common Stock and Registrable Securities pursuant to such exercise by the underwriters.

(h) Enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing underwriter(s) of such offering. Each Stockholder participating in such underwriting hereby agrees to also enter into and perform its obligations under such an agreement.

(i) Participate in customary road show meetings reasonably requested (and reasonable in scope in light of the size of the offering) upon reasonable prior notice by the lead managing underwriter of such offering.

1.8 Stockholder Information. It shall be a condition precedent to the obligations of Acquirer to take any action pursuant to this Agreement that the selling Stockholders will furnish to Acquirer such information regarding themselves, the Registrable Securities held by them, and the intended method of disposition and plan of distribution of such Registrable Securities as shall be required to timely effect the registration of their Registrable Securities.

1.9 Delay of Registration. No Stockholder will have any right to obtain or seek an injunction restraining or otherwise delaying any registration that is the subject of this Agreement as the result of any controversy that might arise with respect to the interpretation or implementation of this Agreement.

1.10 Indemnification.

(a) By Acquire. To the extent permitted by law, Acquirer will indemnify, defend and hold harmless each Stockholder against any losses, claims, damages, or liabilities (joint or several) to which such Stockholder may become subject under the Securities Act, the Securities Exchange Act of 1934 (the “1934 Act”) or other federal or state law, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon any of the following statements, omissions or violations (collectively a “Violation”):

(i) any untrue statement or alleged untrue statement of a material fact contained in a registration statement filed by Acquirer pursuant to this Agreement, including any preliminary prospectus or final prospectus contained therein or any amendments or supplements thereto;

(ii) the omission or alleged omission to state in such registration statement, preliminary prospectus or final prospectus or any amendments or supplements thereto, a material fact required to be stated therein, or necessary to make the statements therein not misleading; or

(iii) any violation or alleged violation by Acquirer of the Securities Act, the 1934 Act, any U.S. federal or state securities law or any rule or regulation promulgated under the Securities Act, the 1934 Act or any U.S. federal or state securities law in connection with the offering covered by such registration statement;

and Acquirer will reimburse such Stockholder for any legal or other expenses reasonably incurred by such Stockholder in connection with investigating or defending against any such loss, claim, damage, liability or action, as incurred; provided, however, that the indemnity agreement contained in this subsection 1.10(a) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or action if such settlement is effected without the consent of Acquirer (which consent shall not be unreasonably withheld), nor shall Acquirer be liable in any such case for any such loss, claim, damage, liability or action to the extent that it arises out of or is based upon a Violation which occurs in reliance upon and in conformity with written information furnished by such Stockholder expressly for use in connection with such registration.

(b) By Selling Stockholders. To the extent permitted by law, each selling Stockholder severally and not jointly, will indemnify and hold harmless Acquirer, each of its directors, each of its officers who have signed the registration statement, each person, if any, who controls Acquirer within the meaning of the Securities Act, any underwriter and any other holder selling securities under such registration statement, against any losses, claims, damages or liabilities (joint or several) to which Acquirer or any such director, officer, controlling person, underwriter or other such holder may become subject under the Securities Act, the 1934 Act or other federal or state law, insofar as such losses, claims, damages or liabilities (or actions in respect thereto) arise out of or are based upon any Violation, in each case to the extent (and only to the extent) that such Violation occurs in reliance upon and in conformity with written information furnished by such Stockholder expressly for use in connection with such registration; and each such Stockholder will reimburse Acquirer or any such director, officer, controlling person, underwriter or other holder for any legal or other expenses reasonably incurred by Acquirer or any such director, officer, controlling person, underwriter or other holder in connection with investigating or defending any such loss, claim, damage, liability or action, as incurred; provided, however, that the indemnity agreement contained in this subsection 1.10(b) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or action if such settlement is effected without the consent of the indemnifying Stockholder, which consent shall not be unreasonably withheld; and provided further that the total amounts payable in indemnity by a Stockholder under this subsection 1.10(b) in respect of any Violation shall not exceed the net proceeds received by such Stockholder in the registered offering out of which such Violation arises.

(c) Notice. Promptly after receipt by an indemnified party under this Section 1.10 of notice of the commencement of any action (including any governmental action), such indemnified party will, if a claim for indemnification or contribution in respect thereof is to be made against any indemnifying party under this Section 1.10, deliver to the indemnifying party a written notice of the commencement thereof and, if the indemnifying party is Acquirer, Acquirer shall have the right and obligation to control the defense of such action; provided, however , that: (i) the indemnified party or parties shall have the right to participate at their own expense in the defense thereof, and, to the extent agreed in writing with the indemnifying party and any other indemnifying party similarly noticed, to assume the defense thereof, with counsel mutually satisfactory to the parties (except that Acquirer will have the right to assume such defense if it, or any of its officers, directors, or controlling persons, is indemnified by the selling Stockholders); and (iii) an indemnified party shall have the right to retain its own counsel, with the fees and expenses of such counsel to be paid by the indemnifying party, if representation of such indemnified party by the counsel retained by the indemnifying party would be inappropriate due to actual or potential conflict of interests between such indemnified party and any other party represented by such counsel in such proceeding. The failure of an indemnified party to deliver written notice to the indemnifying party within a reasonable time of the commencement of any such action, if prejudicial to the ability of the indemnifying party to defend such action, shall not relieve such indemnifying party of liability to the indemnified party under this Section 1.10, except to the extent (and only to the extent) of such prejudice, but the omission so to deliver written notice to the indemnifying party will not relieve the indemnifying party of any liability that it may have to any indemnified party otherwise than under this Section 1.10.

(d) Defect Eliminated in Final Prospectus. The foregoing indemnity agreements of Acquirer and Stockholders are subject to the condition that, insofar as they relate to any Violation made in a preliminary prospectus but eliminated or remedied in the amended prospectus on file with the SEC at the time the registration statement in question becomes effective or the amended prospectus filed with the SEC pursuant to SEC Rule 424(b) (the “Final Prospectus”), such indemnity agreement shall not inure to the benefit of any person if a copy of the Final Prospectus was furnished to the indemnified party and was not furnished to the person asserting the loss, liability, claim or damage at or prior to the time such action is required by the Securities Act.

(e) Contribution. In order to provide for just and equitable contribution to joint liability under the Securities Act in any case in which either (i) any Stockholder exercising rights under this Agreement makes a claim for indemnification pursuant to this Section 1.10 but it is judicially determined (by the entry of a final judgment or decree by a court of competent jurisdiction and the expiration of time to appeal or the denial of the last right of appeal) that such indemnification may not be enforced in such case notwithstanding the fact that this Section 1.10 provides for indemnification in such case, or (ii) contribution under the Securities Act may be required on the part of any such selling Stockholder in circumstances for which indemnification is provided under this Section 1.10; then, and in each such case, Acquirer and such Stockholder will contribute to the aggregate losses, claims, damages or liabilities to which they may be subject (after contribution from others) in such proportion so that such Stockholder is responsible for the portion represented by the percentage that the public offering price of its Registrable Securities offered by and sold by such Stockholder under the registration statement bears to the public offering price of all securities offered by and sold under such registration statement, and Acquirer and other selling Stockholders are responsible for the remaining portion; provided, however, that, in any such case, (A) no such Stockholder will be required to contribute any amount in excess of the public offering price of all such Registrable Securities offered and sold by such Stockholder pursuant to such registration statement; and (B) no person or entity guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) will be entitled to contribution from any person or entity who was not guilty of such fraudulent misrepresentation.

(f) Survival. The obligations of Acquirer and Stockholders under this Section 1.10 shall survive the completion of any offering of Registrable Securities in the Registration Statement.

1.11 Assignment of Rights. The rights of a Stockholder under this Agreement may be assigned only with Acquirer’s express prior written consent, which consent shall not be unreasonably withheld; provided, however, that the rights of a Stockholder under this Agreement may be assigned without Acquirer’s express prior written consent: (a) to a Permitted Assignee (as defined below); or (b) if applicable, by will or by the laws of intestacy, descent or distribution, provided that the assignee agrees in writing to be bound by all the obligations of, and restrictions applicable to, Stockholders under this Agreement. Notwithstanding the foregoing, upon the expiration of the Lock-Up Period, Stockholder may assign Stockholder’s rights under this Agreement to any transferee who is a limited partner (active or retired (who retires after the date hereof)) of Stockholder that is a partnership or limited liability company, respectively, without the requirement set forth in clause (b) of the foregoing sentence. Any

attempt to assign any rights of a Stockholder under this Agreement without Acquirer’s express prior written consent in a situation in which such consent is required by this Section shall be null and void and without effect. Subject to the foregoing restrictions, all rights, covenants and agreements in this Agreement by or on behalf of the parties hereto will bind and inure to the benefit of the respective permitted successors and assigns of the parties hereto. Each of the following parties are “Permitted Assignees” for purposes of this Section: (a) a trust whose beneficiaries consist solely of a Stockholder and such Stockholder’s immediate family; and (b) the personal representative, custodian or conservator of a Stockholder, in the case of the death, bankruptcy or adjudication of incompetency of that Stockholder.

2. Piggyback Registration Rights.

(a) Acquirer agrees that following the Effective Time of the Merger (as those terms are defined in the Merger Agreement), it will use commercially reasonable efforts to cause that certain Third Amended and Restated Information and Registration Rights Agreement, dated as of May 26, 1999, as amended by the Amendment to the Third Amended and Restated Information and Registration Rights Agreement, dated as of March 23, 2000 (the “Original Agreement” and as amended pursuant hereto, the “Amended Registration Rights Agreement”), to provide that:

(i) for purposes of all sections other than Section 7 (Demand or Form S-3 Registration) of the Original Agreement, the definition of “Holder” shall be amended to include the Stockholders; provided, however, that, the Stockholders’ right under Section 8 (Piggyback Registration) shall be subordinate to the piggyback registration rights of the Holders (under the Original Agreement, including without limitation the Series E Preferred Stock holders, SAFECO Corporation and Nortel Networks, Inc.) and in the event that an underwriter limits the number of shares to be included in a registration, following the exclusion of the shares held by officers or directors of Acquirer, the Stockholders’ Shares will be excluded from such registration (prior to the shares of any other Holder (as that term is defined in the Original Agreement), provided that if less than all Shares of Stockholders are excluded from such registration, the exclusion will be pro rata among Stockholders, based on the number of shares each Stockholder would have otherwise been entitled to include in such registration.

(ii) the definition of “Registrable Securities” in the Original Agreement shall be amended to include the Shares for purposes of all sections other than Section 7 (Demand or Form S-3 Registration) of the Original Agreement (subject to the restrictions described in paragraph (a)(ii) above).

(b) Each Stockholder hereby agrees that, if requested by an underwriter of a registered sale in which a Stockholder exercises such Stockholder’s “piggyback rights” described in paragraph (a) above, such Stockholder will not to offer, sell or otherwise dispose of any of such Stockholder’s Shares without prior written consent of Acquirer or the underwriter for a period of up to ninety (90) days following the effective date of the registration statement.

3. Miscellaneous.

3.1 Entire Agreement; Successors and Assigns. This Agreement, the Merger Agreement and the Investment Representation Letter executed by each Stockholder in connection with the Merger constitute the entire agreement between Acquirer, the Company and each Stockholder relative to the subject matter hereof Any previous agreement between Acquirer, the Company and each Stockholder concerning registration rights is superseded by this Agreement. Subject to the exceptions specifically set forth in this Agreement, the terms and conditions of this Agreement shall inure to the benefit of and be binding upon the respective executors, administrators, heirs, successor, and assigns of the parties.

3.2 Government Law. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware excluding those laws that direct the application of the laws of another jurisdiction.

3.3 Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.

3.4 Headings. The headings of the sections of this Agreement are for convenience and shall not by themselves determine the interpretation of this Agreement.

3.5 Notices. All notices and other communications required or permitted under this Agreement will be in writing and will be either hand delivered in person, sent by facsimile, sent by certified or registered first class mail, postage pre-paid, or sent by nationally recognized express courier service. Such notices and other communications will be effective upon receipt if hand delivered or sent by facsimile, three (3) days after mailing if sent by mail, and one (1) day after dispatch if sent by express courier, if sent to the following addresses or such other addresses as any party may notify the other parties:

(a) If

to Acquirer:

Concur Technologies, Inc.

6222 185th Ave. N.E.

Redmond, WA 98052

Attention: General Counsel

Phone: (425) 497-7394

Fax: (415) 497-5930

with a copy to:

Fenwick & West LLP

Two Palo Alto Square

Palo Alto, CA 94306

Attention: Matthew P. Quilter, Esq.

Phone: (650) 494-0600

Fax: (650) 494-1417

(b) If to the Stockholder, then at the address listed next to such Stockholder’s name on Exhibit A hereto; provided that, if a Stockholder does not provide Acquirer with such Stockholder’s address, Acquirer will have no obligations to give notice to such Stockholder under this Agreement or the Amended Registration Rights Agreement.

3.6 Amendment of Agreement. Any provision of this Agreement may be amended and the observance thereof may be waived (either generally or in a particular instance and either retroactively or prospectively), only with the written consent of Acquirer and the holders of a majority of Shares (at the time such amendment or waiver). Any amendment or waiver effected in accordance with this section shall be binding upon each Stockholder, each permitted successor or assignee of such Stockholder and Acquirer.

3.7 Severability. In case any provision of this Agreement shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.

3.8 No Third Party Beneficiaries. Nothing in this Agreement, express or implied, is intended to confer upon any person, other than the parties hereto, the Stockholders, and their successors and assigns, any rights or remedies under or by reason of this Agreement.

3.9 Effectiveness of Agreement. Regardless of when signed, this Agreement will not become effective or binding unless and until the Effective Time.

[THE REMAINDER OF THIS PAGE LEFT INTENTIONALLY BLANK.]

IN WITNESS WHEREOF, the undersigned have executed this Declaration of Registration Rights as of the date first above written.

CONCUR TECHNOLOGIES, INC.


By:


Name:


Title:

[Signature Page to Declaration of Registration Rights]

EX-4 4 dex4.htm FORM OF INVESTMENT REPRESENTATION AGREEMENT Form of Investment Representation Agreement

EXHIBIT 4

July __, 2002

Concur Technologies, Inc.

6222 18th Avenue NE

Redmond, WA 98052

Re:

Investment Representation Letter [to be executed by Major Stockholders]

Ladies and Gentlemen:

The undersigned (“Stockholder”) holds shares of Series 3 Preferred Stock of Captura Software, Inc., a Delaware corporation (the “Company”). Concur Technologies, Inc., a Delaware corporation (“Acquirer”), the Company, Canoe Acquisition Corp., a Delaware corporation and a wholly owned subsidiary of Acquirer (“Sub”), and Fred Harman, as representative, are entering into an Agreement and Plan of Reorganization (the “Merger Agreement”), pursuant to which Sub shall be merged with and into the Company in a reverse triangular merger (the “Merger”), with the Company to be the surviving corporation of the Merger. In connection with the Merger, Acquirer will issue to the stockholders of the Company shares of Acquirer Common Stock (the “Restricted Securities”) in a private placement effected in reliance on the exemption from the registration requirements of the Securities Act of 1933 (the “Securities Act”) provided by Section 4(2) of the Securities Act and/or Rule 506 of Regulation D promulgated under the Securities Act, and exemptions from the qualification requirements of applicable state law. Stockholder is a stockholder of the Company, and Stockholder acknowledges and agrees that Acquirer is relying on the truth and accuracy of the representations and warranties made by Stockholder in this Investment Representation Letter in order for it to rely on the exemptions described above. Unless otherwise defined herein, all capitalized terms used herein shall have the same meanings given to such terms in the Merger Agreement.

Stockholder hereby makes the representations, warranties and agreements contained in the following Sections of this Investment Representation Letter to Acquirer, and each of such representations, warranties and agreements are true and correct as to Stockholder as of the date hereof and will be true and correct on and as of the Closing Date.

1. Binding Agreement, Authority. This Investment Representation Letter constitutes Stockholder’s valid and legally binding obligation, enforceable in accordance with its terms, except as may be limited by (a) applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights generally, and (b) rules of law and equity governing specific performance, injunctive relief and other equitable remedies. Stockholder has executed, delivered and performed his/her/its obligations under, and has all requisite legal power, authority and capacity to execute, deliver and perform his/her/its obligations under this Investment Representation Letter. The execution, delivery and performance by Stockholder of this Investment Representation Letter have been duly and validly

approved and authorized by all necessary corporate, trust, partnership or custodial action required by Applicable Law. If this Investment Representation Letter is being executed by a person in a representative or fiduciary capacity with regard to Stockholder, the person signing this Investment Representation Letter has full power and authority to enter into, execute and deliver, and perform this Investment Representation Letter.

2. Title; No Other Securities. Stockholder has good and marketable title to that number of shares of Company Capital Stock as set forth beside his/her/its name on Exhibit A attached hereto, which information corresponds with Schedule 3.4(a) to the Company Disclosure Letter, free and clear of any Encumbrance or any restriction on voting. Except as may be set forth in Exhibit B attached hereto, which information corresponds with Schedule 3.4(b)-1, Schedule 3.4(b)-2, and Schedule 3.4(b)-3 of the Company Disclosure Letter, Stockholder has no interest in, or right of any kind to, any securities of the Company, including, without limitation, any options, warrants, convertible securities or other securities, calls, commitments, conversion privileges, preemptive rights, rights of first refusal, rights of first offer or other rights or agreements outstanding to purchase or otherwise acquire (whether directly or indirectly) any shares of Company Capital Stock or any securities convertible into or exchangeable for any shares of Company Capital Stock or obligating the Company to grant, issue, extend or enter into any such option, warrant, convertible security or other security, call, commitment, conversion privilege, preemptive right, right of first refusal, right of first offer or other right or agreement. Stockholder hereby waives any rights of first refusal, rights of first offer, rights of notice, rights of co-sale, tag-along rights, information rights, registration rights, preemptive rights, rights of redemption or repurchase, and similar rights of Stockholder under any agreement, arrangement or understanding applicable to shares of the Company Capital Stock, in each case as the same may apply to the execution and delivery of the Merger Agreement and the consummation of the Merger and the other actions and transactions contemplated by the Merger Agreement. Stockholder hereby agrees to, and does so terminate any and all such agreements, arrangements or understandings, contingent upon and effective immediately prior to the Effective Time.

3. Stockholder Approval.

(a) Approval of the Merger Agreement and the Merger. Stockholder hereby approves the terms of the Merger Agreement, the Merger, and that certain Escrow Agreement dated of even date with the Merger Agreement, by and among the Company, the Acquirer, the Escrow Agent, and the Representative (as defined below) (the “Escrow Agreement”), and agrees to be bound by the indemnification obligations of Stockholder as security for the performance of the obligations of Stockholder pursuant to Article 11 of the Merger Agreement, the hold-back provisions of Article 12 of the Merger Agreement and the Escrow Agreement and the indemnification obligations of Stockholder pursuant to that certain Declaration of Registration Rights, dated of even date with the Merger Agreement, between the Company and Acquirer (the “Declaration of Registration Rights”), it being understood that recovery against the Escrow Fund shall be the exclusive remedy of Acquirer against the Stockholder for Stockholder’s indemnification obligations under Article 11 of the Merger Agreement except (i) in connection with any fraud, willful misrepresentation, or willful misconduct or (ii) in connection with the breach of any representation, warranty, or covenant set forth in this Investment Representation Letter. Stockholder further approves the designation of and hereby designates Fred Harman as the representative of Stockholder (the “Representative”) and as the attorney-in-fact and agent for

and on behalf of Stockholder with respect to claims for indemnification under Article 11 of the Merger Agreement, the hold-back provisions of Article 12 of the Merger Agreement and the Escrow Agreement, and the taking by the Representative of any and all actions and the making of any decisions required or permitted to be taken by the Representative under the Escrow Agreement and the Merger Agreement, in accordance with Articles 11 and 12 thereof.

(b) Termination of the Investor Rights Agreement. Stockholder hereby consents to and approves the termination, and hereby terminates that certain Seventh Amended and Restated Investor Rights Agreement dated as of May 31, 2002 by and among the Company and the stockholders named therein, as such agreement may have been amended as of the date hereof, or any other agreement between the Company and Stockholder touching upon or relating to the content or subject-matter of the foregoing agreement (collectively, the “Investor Rights Agreement”). Further, Stockholder covenants and agrees not to exercise, and hereby expressly waives, any rights, including but not limited to any notice, informational, or registration rights, that may be or become available to, or exercisable by Stockholder pursuant to Investor Rights Agreement, in connection with the Merger, execution and delivery of the Merger Agreement, the Company Ancillary Agreements, the Escrow Agreement, the Voting Agreement, the Investment Representation Letters, or the transactions contemplated hereby or thereby, termination of the Investor Rights Agreement, or performance hereunder or thereunder or required in furtherance hereof or thereof.

4. Lock-Up Agreement. Stockholder shall not make any sale, transfer or other disposition of the Restricted Securities for a period of nine months from the Effective Date of the Merger (the “Lock-Up Period”). In addition, for a period beginning nine months days from the Effective Date and ending on the first anniversary of the Effective Date of the Merger (the “Restriction Period”), Stockholder shall not make any sale, transfer or other disposition of the Restricted Securities other than a sale, transfer or other disposition arranged with Acquirer. Stockholder shall provide written notice to Acquirer if Stockholder desires to make any sale, transfer or other disposition of Restricted Securities during the Restriction Period. Upon receipt of such notice, Acquirer will in good faith use its commercially reasonable efforts to locate a Person to acquire Stockholder’s Restricted Securities or otherwise coordinate a brokered sale, transfer or other disposition of such Restricted Securities with a third-party. The foregoing restrictions are expressly agreed to preclude Stockholder from engaging in any hedging or other transaction which is designed to or which reasonably could be expected to lead to or result in a sale or disposition of the Stockholder’s Restricted Securities even if such Restricted Securities would be disposed of by someone other than Stockholder, during the Lock-Up Period or Restriction Period, as applicable. Notwithstanding the foregoing, Stockholder may transfer Stockholder’s Restricted Securities during the Lock-Up Period (i) as a bona fide gift or gifts, provided that the donee or donees thereof agree to be bound in writing by the restrictions and obligations set forth herein, (ii) to any trust for the direct or indirect benefit of Stockholder or Stockholder’s immediate family, provided that the trustee of the trust agrees to be bound in writing by the restrictions and obligations set forth herein, and provided further that any such transfer shall not shall not involve a disposition for value, or (iii) with the prior written consent of Acquirer. Notwithstanding anything contained in this Agreement to the contrary, Stockholder may not transfer Stockholder’s Restricted Securities during the Lock-Up Period (i) to an affiliate of Stockholder, or (ii) to any transferee who is a partner (general or limited, active or retired (who retires after the date hereof)), a current or former member, or a stockholder of Stockholder

that is a partnership, limited liability company or corporation, respectively. For purposes of this Section 4 “hedging or other transactions” shall include without limitation any short sale or any purchase, sale or grant of any right (including without limitation any put or call option) with respect to any of the Stockholder’s Restricted Securities or with respect to any security that includes, relates to, or derives any significant part of its value from such Restricted Securities. Stockholder agrees that Stockholder will not make any sale, transfer or other disposition of Stockholder’s Restricted Securities in violation of the Securities Act or the rules and regulations promulgated thereunder.

5. Compliance with Underlying Agreement(s). Stockholder acknowledges that Stockholder will receive the Restricted Securities pursuant to the Merger Agreement. Stockholder agrees to be bound by the terms and conditions of the Escrow Agreement and Articles 11 and 12 of the Merger Agreement applicable to Company Stockholders in the same manner as if Stockholder were a party to the Merger Agreement. Stockholder hereby understands and acknowledges that the Restricted Securities received by Stockholder pursuant to the Merger shall be subject to the terms and conditions contained in the Escrow Agreement and the Merger Agreement, regardless of whether Stockholder is a party thereto. Further, Stockholder agrees to be bound by, and comply with, the obligations, restrictions and other terms and conditions of the Declaration of Registration Rights and the Escrow Agreement applicable to Company Stockholders in the same manner as if Stockholder had executed and delivered the Declaration of Registration Rights and the Escrow Agreement.

6. Securities Law Compliance.

(a) Purchase for Own Account. The Restricted Securities to be issued to Stockholder in the Merger will be acquired for investment for Stockholder’s own account, not as a nominee or agent, and not with a view to the public resale or distribution thereof within the meaning of the Securities Act, and Stockholder has no present intention of selling, granting any participation in, or otherwise distributing the same.

(b) Disclosure of Information. Stockholder has received or has had full access to all the information Stockholder considers necessary or appropriate to make an informed investment decision with respect to the Restricted Securities to be issued to Stockholder in the Merger pursuant to the Merger Agreement. Stockholder has had an opportunity to ask questions and receive answers from Acquirer and the Company regarding the terms and conditions of the offering of Restricted Securities pursuant to the Merger Agreement.

(c) Investment Experience. Stockholder understands that the acquisition of Restricted Securities pursuant to the Merger Agreement involves substantial risk. Stockholder acknowledges that Stockholder can bear the economic risk of Stockholder’s investment in the Restricted Securities, and has sufficient knowledge and experience in financial or business matters such that Stockholder is capable of evaluating the merits and risks of this investment in the Restricted Securities and protecting his/her/its own interests in connection with this investment. Stockholder hereby represents that he/she/it is an “accredited investor,” as such term is defined under Rule 501 (a) of Regulation D promulgated under the Securities Act, by virtue of the following:

(If you are an individual, please check the appropriate box.)

Stockholder’s individual net worth, or joint net worth with Stockholder’s spouse, exceeds $1,000,000.

Stockholder personally has had an individual income in excess of $200,000 in each of the two most recent years and Stockholder reasonably expects an income in excess of $200,000 in the current year.

Stockholder’s joint income with Stockholder’s spouse is in excess of $300,000 in each of the two most recent years and Stockholder reasonably expects a joint income in excess of $300,000 in the current year.

(If you are an entity, please check the appropriate box.)

Stockholder is an organization described in Section 501(c)(3) of the Internal Revenue Code with total assets in excess of $5,000,000 not formed for the purpose of investing in Acquirer.

Stockholder is a corporation with total assets in excess of $5,000,000, not formed for the purpose of investing in Acquirer.

Stockholder is a partnership with total assets in excess of $5,000,000, not formed for the purpose of investing in Acquirer.

Stockholder is a Massachusetts or similar business trust with total assets in excess of $5,000,000, not formed for the purpose of investing in Acquirer.

Stockholder is any other trust with total assets in excess of $5,000,000, not formed for the purpose of investing in Acquirer.

7. Compliance With Laws and Regulations. The issuance and transfer of the Restricted Securities will be subject to and conditioned upon compliance by Acquirer and Stockholder with all applicable state and federal laws and regulations and with all applicable requirements of any stock exchange or automated quotation system on which shares of Acquirer Common Stock may be listed or quoted at the time of such issuance or transfer.

8. Restricted Securities. Stockholder understands that the Restricted Securities are characterized as “restricted securities” under the Securities Act inasmuch as they are being acquired from Acquirer in a transaction not involving a public offering and that, under the Securities Act and applicable regulations thereunder, such securities may be resold without registration under the Securities Act only in certain limited circumstances. In this connection, Stockholder represents that Stockholder is familiar with Rule 144 as promulgated under the Securities Act and as presently in effect, and understands the resale limitations imposed thereby and by other applicable provisions of the Securities Act. Stockholder understands that, except as set forth in Section 2.9 of the Merger Agreement and the Declaration of Registration Rights, Acquirer is under no obligation to register any of the Restricted Securities.

9. Further Limitations on Disposition. Without in any way limiting the representations set forth above, Stockholder further agrees not to make any disposition of all or any portion of the Restricted Securities issued to Stockholder in the Merger unless and until:

(a) there is then in effect a registration statement under the Securities Act covering such proposed disposition and such disposition is made in accordance with such registration statement; or

(b) Stockholder shall have notified Acquirer of the proposed disposition and shall have furnished Acquirer with a statement of the circumstances surrounding the proposed disposition, and, at the expense of Stockholder or Stockholder’s transferee, with an opinion of counsel, reasonably satisfactory to Acquirer, that such disposition will not require registration of such securities under the Securities Act.

Notwithstanding the provisions of paragraphs (a) and (b) above, no such registration statement or opinion of counsel shall be required for the transfer of such shares (i) by gift, will or intestate succession by any Stockholder to his or her spouse or lineal descendants or ancestors or any charitable organization or any trust for any of the foregoing, (ii) to a personal representative (such as an executor of Stockholder’s will), custodian or conservator of Stockholder in the case of the death, bankruptcy or adjudication of incompetency of Stockholder, (iii) to partners (general or limited, active or retired (who retires after the date hereof)) of Stockholder if Stockholder is a partnership, (iv) to members (current or former) of Stockholder if Stockholder is a limited liability company, (v) to stockholder of Stockholder if Stockholder is a corporation, or (vi) to affiliates of Stockholder (each a “Permitted Transferee”).

10. Legends. Stockholder acknowledges and understands that the certificates evidencing the Restricted Securities issued in the Merger will bear the legend set forth below:

“THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR UNDER THE SECURITIES LAWS OF CERTAIN STATES. THESE SECURITIES ARE SUBJECT TO RESTRICTIONS ON TRANSFERABILITY AND RESALE AND MAY NOT BE TRANSFERRED OR RESOLD EXCEPT AS PERMITTED UNDER THE ACT AND THE APPLICABLE STATE SECURITIES LAWS, PURSUANT TO REGISTRATION OR EXEMPTION THEREFROM. INVESTORS SHOULD BE AWARE THAT THEY MAY BE REQUIRED TO BEAR THE FINANCIAL RISKS OF THIS INVESTMENT FOR AN INDEFINITE PERIOD OF TIME. THE ISSUER OF THESE SECURITIES MAY REQUIRE AN OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE ISSUER TO THE EFFECT THAT ANY PROPOSED TRANSFER OR RESALE IS IN COMPLIANCE WITH THE ACT AND ANY APPLICABLE STATE SECURITIES LAWS.”

The legend set forth above shall be removed by Acquirer from any certificate evidencing Restricted Securities upon receipt by Acquirer of an opinion by its counsel that a registration statement under the Securities Act is at that time in effect with respect to the legended security or upon delivery to Acquirer of an opinion by its counsel, or counsel reasonably satisfactory to Acquirer, that such security can be freely transferred in a public sale without such a registration statement being in effect.

11. Stop-Transfer Instructions. Stockholder agrees that to ensure compliance with the restrictions imposed by this Investment Representation Letter, Acquirer may issue appropriate “stop-transfer” instructions to its transfer agent, if any, and if Acquirer transfers its own securities, it may make appropriate notations to the same effect in its own records.

12. Refusal to Transfer. Acquirer will not be required to (a) register a transfer on its books of any Restricted Securities that have been sold or otherwise transferred in violation of any of the provisions of this Investment Representation Letter, or (b) treat as owner of such Restricted Securities, or accord the right to vote or pay dividends to, any Acquirer or other trustee to whom such Restricted Securities have been so transferred.

13. Compliance With Laws and Regulations. The issuance and transfer of the Restricted Securities will be subject to and conditioned upon compliance by Acquirer and Stockholder with all applicable state and federal laws and regulations and with all applicable requirements of any stock exchange or automated quotation system on which Restricted Securities may be listed or quoted at the time of such issuance or transfer.

14. Prohibition on Disposition and Transfer.

(a) No Disposition or Encumbrance of Subject Shares. Stockholder agrees that prior to the Expiration Date (as defined below), Stockholder will not, directly or indirectly, sell, transfer, exchange, pledge or otherwise dispose of, or in any other way reduce Stockholder’s risk of ownership or investment in, or make any offer or agreement relating to any of the foregoing with respect to the Subject Shares (as defined below), except in connection with the Merger and except to Permitted Transferees. As used herein, the term “Expiration Date” means the earliest to occur of (i) the Effective Time, or (ii) such time as the Merger Agreement may be terminated in accordance with its terms. As used herein, the term “Subject Shares” means any shares of Company Capital Stock held by Stockholder on the date hereof (including shares held both beneficially and of record and other shares held either beneficially or of record) and any shares of Company Capital Stock that may hereafter be acquired by Stockholder.

(b) Transfer of Voting Rights. Stockholder agrees that, prior to the Expiration Date, Stockholder will not deposit any of the Subject Shares into a voting trust or grant a proxy or enter into an agreement of any kind with respect to the voting of any of the Subject Shares other than for the benefit of Acquirer.

15. Cash-Out of Unaccredited Stockholders. Stockholder acknowledges that, in accordance with Section 2.9(b) of the Merger Agreement, shares of Company Series 3 Preferred Stock held by Company Stockholders that are not “accredited investors” as defined in Rule 501 of Regulation D promulgated under the Securities Act (each an “Unaccredited Company Stockholder”) will be converted into the right to receive an amount of cash equal to (i) the product of the number of shares of Acquirer Common Stock otherwise issuable to such Unaccredited Company Stockholder pursuant to Section 2.2(b) of the Merger Agreement multiplied by the Acquirer Average Price Per Share, plus (ii) the amount of cash to which such Unaccredited Company Stockholder would have been entitled to receive under Section 2.2(b) of the Merger Agreement. Stockholder hereby approves, authorizes and consents to any such payment to Unaccredited Company Stockholders in accordance with Section 2.9(b) of the

Merger Agreement in lieu of such Unaccredited Company Stockholder’s receiving Acquirer Capital Stock in accordance with Section 2.2(b) thereof Further, Stockholder covenants and agrees not to exercise any right or seek any remedy granted to Stockholder (or to which Stockholder is otherwise entitled) pursuant to the Company’s certificate of incorporation, bylaws or applicable law that may be triggered or otherwise become exercisable as a result of Acquirer’s payment of cash in lieu of issuing Acquirer Common Stock to such Unaccredited Company Stockholders pursuant to Section 2.9(b). Stockholder acknowledges and understands that Stockholder is not an Unaccredited Company Stockholder and that Stockholder will not receive cash in lieu of Acquirer Common Stock pursuant to Section 2.9(b) of the Merger Agreement.

16. Entire Agreement. This Investment Representation Letter and the provisions of the Escrow Agreement, Articles 11 and 12 of the Merger Agreement and the Declaration of Registration Rights by which Stockholder has agreed to be bound supersede all prior and contemporaneous agreements or understandings, inducements or conditions, express or implied, written or oral, between the parties. The express terms hereof control and supersede any course of performance or usage of the trade inconsistent with any of the terms hereof.

17. Construction of Agreement. This Investment Representation Letter has been negotiated by Acquirer and Stockholder. The parties hereto waive the application of any law, regulation, holding or rule of construction providing that ambiguities in an agreement, certificate or document will be construed against the party drafting such agreement, certificate or document.

18. Governing Law, Venue. This Investment Representation Letter will be governed by, and construed in accordance with, the internal laws of the State of Delaware applicable to contracts executed and performed entirely within the State of Delaware, without regard to the principles of choice of law or conflicts or law of any jurisdiction. The exclusive venue for any judicial action under and pursuant to this Investment Representation Letter will rest with the state and federal courts located in King County, Washington.

19. Successors and Assigns. This Investment Representation Letter will inure to the benefit of the successors and assigns of Acquirer, including any successor to, or assignee of, all or substantially all of the business and assets of Acquirer or any other part of the business or assets of Acquirer. This Investment Representation Letter and the rights and obligations of Stockholder hereunder are personal to Stockholder and will not be assignable, delegable or transferable by Stockholder in any respect.

20. Severability. If any provision of this Investment Representation Letter, or the application thereof, is for any reason held to any extent to be invalid or unenforceable, then the remainder of this Investment Representation Letter and the application of such provision to other Persons or circumstances will be interpreted so as reasonably to effect the intent of the parties hereto. The parties further agree to replace such void or unenforceable provision of this Investment Representation Letter with a valid and enforceable provision that will achieve, to the extent possible, the economic, business and other purposes of the void or unenforceable provision.

21. Counterparts. This Investment Representation Letter may be executed in one or more counterparts, and by the different parties hereto in separate counterparts, each of which

when executed will be deemed to be an original but all of which taken together will constitute one and the same agreement.

22. Stamp Duty. Any stamp duty, transfer tax or similar tax payable in connection with the transfer of Company Capital Stock by the Stockholder will be payable solely by the Stockholder.

23. Other Remedies. Except as otherwise provided herein, any and all remedies herein expressly conferred upon a party hereunder will be deemed cumulative with and not exclusive of any other remedy conferred hereby or by law on such party, and the exercise of any one remedy will not preclude the exercise of any other. The parties hereto agree that irreparable damage would occur in the event that any of the provisions of this Investment Representation Letter were not performed in accordance with their specific terms or were otherwise breached. It is accordingly agreed that the parties will be entitled to seek an injunction or injunctions to prevent breaches of this Investment Representation Letter and to enforce specifically the terms and provisions hereof in any court of the United States or any state having jurisdiction.

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24. Amendment; Waive. Any term or provision of this Investment Representation Letter may be amended, and the observance of any term of this Investment Representation Letter may be waived (either generally or in a particular instance and either retroactively or prospectively) only by a writing signed by the party to be bound thereby. The waiver by a party of any breach hereof or default in the performance hereof will not be deemed to constitute a waiver of any other default or any succeeding breach or default.

Very truly yours,

Signature

Name (Please Type or Print)

Address

City, State and Zip Code

Acknowledged and agreed:

Concur Technologies, Inc.


By:


Name:


Title:

[SIGNATURE PAGE TO INVESTMENT REPRESENTATION LETTER]

EXHIBIT A

CAPITALIZATION TABLE OF THE COMPANY

AS OF THE DATE OF SIGNING

EXHIBIT B

WARRANT, STOCK OPTION AND UNVESTED STOCK TABLE

AS OF THE DATE OF SIGNING

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