Exhibit 4.03
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AMENDMENT TO THIRD AMENDED AND RESTATED
INFORMATION AND REGISTRATION RIGHTS AGREEMENT
This Amendment to Third Amended and Restated Information and
Registration Rights Agreement (this "Amendment") is entered into as of March 23,
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2000, by and among Concur Technologies, Inc., a Delaware corporation (the
"Company") and the other persons and entities whose names are set forth on the
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signature pages hereto. This Amendment is intended to amend that Third Amended
and Restated Information and Registration Rights Agreement dated as of May 26,
1999, by and among the Company and the Investors listed on the signature pages
thereto (the "Rights Agreement"). Capitalized terms used but not defined herein
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shall have the meanings assigned to such terms in the Rights Agreement.
RECITALS
A. On May 26, 1999, the Company entered into the Rights Agreement with
certain of its securities holders.
B. Pursuant to a Stock Purchase Agreement by and between the Company and
SAFECO Corporation ("Safeco") and Nortel Networks, Inc. ("Nortel"), dated as of
February 22, 2000 (the "Stock Purchase Agreement"), Safeco and Nortel are
acquiring shares of Common Stock of the Company (the "Purchased Shares").
Pursuant to certain other agreements, warrants are being issued to each of
Safeco and Nortel for the purchase of shares of the Common Stock of Concur (the
"Warrant Shares").
C. As stockholders of the Company, the Investors will benefit from the
investment made by Safeco and Nortel pursuant to the Stock Purchase Agreement.
Therefore, in order to satisfy a condition to closing the transaction
contemplated by the Stock Purchase Agreement, the Company and certain Investors
hereby amend the Rights Agreement pursuant to, and in compliance with, Section
19.6 of the Rights Agreement to provide for the inclusion of the Purchased
Shares and the Warrant Shares as Registrable Securities thereunder for the
purposes of demand and piggyback registration rights and Nortel and Safeco as
Investors thereunder.
AGREEMENT
Now, therefore, in consideration of the mutual promises and covenants set forth
herein, the Company and the Investors hereby agree that the Rights Agreement
shall be amended as follows:
1. The definition of the term "Investor" is amended in its entirety,
and shall mean, for all purposes of this Amendment and the Rights Agreement,
"the persons listed on Schedule A and Schedule B of the Rights Agreement, and
Nortel and Safeco."
2. Section 1 of the Rights Agreement is amended to add thereto a new
definition (l) as follows:
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"Additional Registrable Securities. The term `Additional
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Registrable Securities' means the shares of Common Stock
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issued or issuable to Safeco Corporation ("Safeco") and Nortel
Networks, Inc. ("Nortel") pursuant to the Stock Purchase
Agreement dated as of February 22, 2000 between the Company,
Safeco, and Nortel (the "Stock Purchase Agreement"), including
any shares of Common Stock issued pursuant to stock splits,
stock dividends and similar distributions with respect to such
shares."
3. Section 1(e) of the Rights Agreement shall be amended in its
entirety as follows: "(e) `Initiating Holders' shall mean (A)
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for purposes of Section 7.1, Holders, other than Safeco and
Nortel, who in the aggregate hold at least twenty-five percent
(25%) of the Registrable Securities described in 1(h)(i) and
(B) for all other purposes, depending upon the context, the
party or parties initiating the request for the relevant
registration."
4. Section 1(h) of the Rights Agreement shall be amended in its
entirety as follows: "(h) `Registrable Securities' shall mean
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(i) all Common Stock not previously sold to the public and
issued or issuable upon conversion or exercise of any of the
Company's Convertible Securities purchased by or issued to the
Investors, including Common Stock issued pursuant to stock
splits, stock dividends and similar distributions, (ii) any
securities of the Company granted registration rights pursuant
to Section 14 of this Agreement, (iii) from and after the one
year anniversary of the Closing under the Stock Purchase
Agreement, the Additional Registrable Securities, and (iv)
with respect to Registrations by the Company for its own
account, underwritten offerings for the account of other
security holders, and Registrations pursuant to Section
7.1(b), the shares issued upon exercise of the warrants issued
to Safeco and Nortel pursuant to the Definitive Agreements
referenced in the Stock Purchase Agreement including any
shares of Common Stock issued pursuant to stock splits, stock
dividends and similar distributions with respect to such
shares ("Warrant Shares")."
5. Section 7.1 of the Rights Agreement shall be amended in its
entirety as follows: "7.1 Request for Registration on Form
Other Than Form S-3.
(a) Subject to the terms of this Agreement, in the event that
the Company shall receive from the Initiating Holders at any
time after October 31, 1999, a written request that the
Company effect any Registration with respect to all or a part
of the Registrable Securities on a form other than Form S-3
for an offering of at least 25% of the then outstanding
Registrable Securities (or any lesser percent if the
reasonably anticipated aggregate offering price to the public
would exceed $10,000,000), the Company (i) shall promptly give
written notice of the proposed Registration to all other
Holders and (ii) shall, as soon as
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practicable, use its best efforts to effect Registration of
the Registrable Securities specified in such request, together
with any Registrable Securities of any Holder joining in such
request as are specified in a written request given within
twenty (20) days after written notice from the Company.
(b) Subject to the terms of this Agreement, in the event that
the Company shall receive from (i) Safeco, or (ii) Nortel, at
any time on or after the one year anniversary of the Closing
under the Stock Purchase Agreement, a written request that the
Company effect any Registration (not required to be effected
pursuant to Section 415 under the Securities Act) with respect
to all or a part of the Additional Registrable Securities
and/or the Warrant Shares on a form other than Form S-3 with
an aggregate offering price to the public of at least
$10,000,000, the Company shall (i) promptly give written
notice of the proposed Registration to all other Holders and
shall (ii) as soon as practicable, use its best efforts to
effect Registration of the Registrable Securities specified in
such request, together with any Registrable Securities of any
Holder joining in such request as are specified in a written
request given within twenty (20) days after written notice
from the Company. Each of Safeco and Nortel may initiate one
(1) Registration pursuant to this Section 7.1(b).
(c) The Company shall not be obligated to take any action to
effect any such registration pursuant to this Section 7.1 (i)
during the period starting with the date sixty (60) days prior
to the Company's estimated date of filing, and ending on the
date ninety (90) days immediately following the effective date
of an underwritten public offering pertaining to securities of
the Company (other than a registration of securities in a Rule
145 transaction or with respect to an employee benefit plan)
provided that the Company is employing all reasonable efforts
in good faith to cause such Registration to become effective
(provided that in the case of a Registration proposed by
Safeco or Nortel, the Company shall have given Safeco and
Nortel the opportunity to include any Registrable Securities
held by them in such offering) or (ii) after the Company has
effected three such Registrations pursuant to Section 7.1(a)
and one Registration by Safeco under Section 7.1(b) and one
Registration by Nortel under Section 7.1(b).
6. Section 7.3(a) of the Rights Agreement shall be amended in its
entirety as follows:
(a) If a Holder or Holders of the outstanding Registrable
Securities request that the Company file a Registration
Statement on Form S-3 (or any successor form to Form S-3) for
a public offering of shares of Registrable Securities the
reasonably anticipated aggregate price to the public of which,
net of underwriting discounts and commissions, would not be
less than $2,000,000, and the Company is a registrant entitled
to use Form S-3 to register the Registrable Securities for
such an offering, the
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Company (i) shall promptly give written notice of the proposed
Registration to all other Holders and (ii) shall use all
reasonable efforts to effect Registration of the Registrable
Securities specified in such request, together with any
Registrable Securities of any Holder joining in such request
as are specified in a written request given within twenty (20)
days after notice from the Company, and to cause such
Registrable Securities to be qualified in such jurisdictions
as the Holder or Holders may reasonably request; provided,
however, that the Company shall not be required to effect more
than two Registrations pursuant to this Section 7.3 in any
twelve (12) month period. The substantive provisions of
Section 7.5 shall be applicable to each registration initiated
under this Section 7.3.
7. Section 7.5.4 of the Rights Agreement shall be amended in its
entirety as follows:
"7.5.4 Marketing Limitation in Demand Registration.
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In the event the Underwriter's Representative advises the
Initiating Holders in writing that market factors (including,
without limitation, the aggregate number of shares of Common
Stock requested to be Registered, the general condition of the
market and the status of the persons proposing to sell
securities pursuant to the Registration) require a limitation
of the number of shares to be underwritten, the underwriter
and the Company may limit the number of Registrable Securities
to be included in the Registration and underwriting; provided,
however, that no Registrable Securities shall be so excluded
unless (i) first, the Common Stock (other than Registrable
Securities) held by officers or employees of the Company, (ii)
second, the securities other than Registrable Securities and
(iii) third, the securities requested to be registered by the
Company, shall be excluded from such Registration to the
extent required by such limitation. If a limitation of the
number of shares is still required, the Initiating Holders
shall so advise all Holders and the number of shares of
Registrable Securities that may be included in the
Registration and underwriting shall be allocated, among all
Holders in proportion, as nearly as practicable, to the
respective amounts of Registrable Securities entitled to
inclusion in such Registration held by such Holders at the
time of filing
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the Registration Statement; provided, however, that in the
case of a demand registration initiated by Safeco or Nortel
pursuant to Section 7.1(b), no Registrable Securities of the
person initiating the Registration shall be excluded from such
Registration unless the securities held by all other holders
are first excluded to the extent required by such limitation.
No Registrable Securities or other securities excluded from
the underwriting by reason of this Section 7.5.4 shall be
included in such Registration Statement."
8. Section 9 of the Rights Agreement shall be amended in its
entirety as follows:
9. "Expenses of Registration.
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All Registration Expenses incurred in connection with each
Registration brought pursuant to Sections 7.1(a) and 7.1(b)
and unlimited Registrations pursuant to Sections 7.3 and 8,
shall be borne by the Company. All Registration Expenses
incurred in connection with any other registration,
qualification, or compliance, shall be apportioned among the
Holders and other holders of the securities so registered on
the basis of the number of shares so registered.
Notwithstanding the above, the Company shall not be required
to pay for any expenses of any registration proceeding begun
pursuant to Section 7 if the registration request is
subsequently withdrawn at the request of the Holders of a
majority of the Registrable Securities to be registered (which
Holders shall bear such expenses), unless (i) in the case of a
registration begun pursuant to Section 7.1(a), the Holders of
a majority of the Registrable Securities (excluding Nortel and
Safeco and their Registrable Securities) agree to forfeit
their right to one demand registration pursuant to Section
7.1(a), or (ii) in the case of a registration begun pursuant
to Section 7.1(b), the requesting party, Safeco or Nortel, as
the case may be, agrees to forfeit its demand registration
pursuant to Section 7.1(b); provided further, however, that if
at the time of such withdrawal, the Holders have learned of a
Material Adverse Event with respect to the condition,
business, or prospects of the Company not known to the Holders
at the time of their request, then the Holders shall not be
required to pay any of such expenses and shall retain their
rights pursuant to Section 7. All Selling Expenses shall be
borne by the holders of the securities Registered pro rata on
the basis of the number of shares Registered."
9. Section 10 of the Rights Agreement shall be amended in its
entirety as follows:
"The rights to cause the Company to register securities
granted under Section 7 and 8 of this Agreement shall be
terminated, with respect to each Holder on the earlier of (i)
in the case of Holders other than Safeco or Nortel, the date
five years after the closing date of the Company's initial
public offering and (ii) upon such Holders holding less than
1% of the outstanding Registrable Securities (or, if less,
one-half of the Registrable Securities acquired by such Holder
from the Company.)"
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10. The first sentence of Section 14 of the Rights Agreement shall be
amended by inserting the following clause (iii) immediately after clause (ii) of
such sentence:
"and (iii) if such holders are to receive piggyback registration
rights superior to or on a parity with Safeco and Nortel, the
consent of Safeco and Nortel."
11. The Rights Agreement as modified herein shall remain in full force
and effect as so modified.
12. This Amendment 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.
13. This Amendment shall be governed by, and construed in accordance
with the laws of the State of California excluding those laws that direct the
application of the law of another jurisdiction.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first written above.
CONCUR TECHNOLOGIES, INC.
By:/s/ Xxxxxxxx X. Xxxxxx
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Its:Chief Financial Officer and Executive Vice
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President of Operations
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(Signature Page to Amendment to Third Amended
and Restated Information and Registration Rights
Agreement)
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INSTITUTIONAL VENTURE PARTNERS VII, L.P.
by its General Partner
Institutional Venture Management VII, L.P.
By: /s/ Xxxxxx X. Xxxxxxxxx
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Xxxxxx X. Xxxxxxxxx, A General Partner
IVP FOUNDERS FUND I, L.P.
by its General Partner
Institutional Venture Management VI, L.P.
By: /s/ Xxxxxx X. Xxxxxxxxx
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Xxxxxx X. Xxxxxxxxx, A General Partner
INSTITUTIONAL VENTURE MANAGEMENT
VII, L.P.
By: /s/ Xxxxxx X. Xxxxxxxxx
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Xxxxxx X. Xxxxxxxxx, A General Partner
BRENTWOOD ASSOCIATES VI, L.P.
By: Brentwood VI Ventures, L.P.
Its General Partner
By: /s/
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General Partner
BRENTWOOD AFFILIATES FUND II, L.P.
By: Brentwood VII Ventures, LLC
Its General Partner
By: /s/
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Managing Member
(Signature Page to Amendment to Third Amended
and Restated Information and Registration Rights
Agreement)
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XXXXXXXX ASSOCIATES FUND III
A California Limited Partnership
XXXXXXXX VIII
A California Limited Partnership
By: XXXXXXXX VIII MANAGEMENT, L.L.C.
A Delaware Limited Liability Company
Their General Partner
By: /s/
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Title: Managing Member
(Signature Page to Amendment to Third Amended
and Restated Information and Registration Rights
Agreement)
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