EXHIBIT 1.1
CONCUR TECHNOLOGIES,
INC.
EQUITY SECURITIES
UNDERWRITING
AGREEMENT
STANDARD
PROVISIONS
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CONCUR TECHNOLOGIES,
INC.
EQUITY SECURITIES
UNDERWRITING AGREEMENT STANDARD
PROVISIONS
From time to time, Concur
Technologies, Inc., a Delaware corporation (“Concur”),
may enter into one or more underwriting agreements that provide for
the sale of certain equity securities (the
“Securities”), to the purchaser or purchasers named
therein (the “Underwriters”). The standard provisions
set forth herein may be incorporated by reference in any such
underwriting agreement (the “Underwriting Agreement”).
The Underwriting Agreement, including the provisions incorporated
therein by reference, is herein referred to as “this
Agreement.” Unless otherwise defined herein, terms defined in
the Underwriting Agreement are used herein as therein defined.
Capitalized terms not otherwise defined in this Agreement shall
have the meaning ascribed thereto in the Indenture (as hereinafter
defined).
The terms governing of the issuance
and sale of any particular series of Securities shall be as
provided in the applicable Underwriting Agreement (with respect to
each Underwriting Agreement, such series of Securities are herein
referred to as the “Designated Securities”).
1. Issuance of Designated
Securities . Sales of the
Designated Securities may be made from time to time to the
Underwriters of the Designated Securities. Any firm or firms
designated as the representative or representatives, as the case
may be, of the Underwriters of the Designated Securities in the
Underwriting Agreement relating thereto will act as the
representative or representatives (the
“Representative”). The obligation of Concur to issue
and sell any of the Designated Securities and the obligation of any
Underwriters to purchase any of the Designated Securities shall be
evidenced by the Underwriting Agreement with respect to the
Designated Securities specified therein. Each Underwriting
Agreement shall specify the aggregate principal amount of the
Designated Securities, the public offering price of the Designated
Securities, the purchase price to the Underwriters of the
Designated Securities, the names of the Underwriters of the
Designated Securities, the name of the Representative, if any, of
such Underwriters, and the principal amount of the Designated
Securities to be purchased by each Underwriter and shall set forth
the date, time and manner of delivery of the Designated Securities
and payment therefor. The Underwriting Agreement shall also
specify, to the extent not set forth in the Registration Statement
and Prospectus (as hereinafter defined) with respect thereto, the
general terms of the Designated Securities. An Underwriting
Agreement shall be in writing (which may be in counterparts), and
may be evidenced by an exchange of facsimile transmissions. The
obligations of the Underwriters under each Underwriting Agreement
shall be several and not joint.
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2. Representations and
Covenants . Concur
represents to, and covenants with, each Underwriter
that:
(a) Concur meets the requirements
for the use of Form S-3 and a registration statement on Form S-3
(Registration No. 333-
), including a prospectus, relating to the Securities of Concur has
been filed with the U.S. Securities and Exchange Commission (the
“Commission”) in accordance with applicable regulations
of the Commission under the Securities Act of 1933, as amended (the
“Act”), and has been declared effective under the Act.
Such registration statement, as amended to the date of this
Agreement, is hereinafter referred to as the “Registration
Statement,” and such prospectus as proposed to be
supplemented by a prospectus supplement (the “Prospectus
Supplement”) relating to the Designated Securities to be
filed pursuant to Rule 424 under the Act is hereinafter referred to
as the “Prospectus.” Any reference herein to the
Registration Statement or the Prospectus shall be deemed to refer
to and include the documents which were filed under the Securities
Exchange Act of 1934, as amended (the “Exchange Act”)
on or before the date of this Agreement, and incorporated by
reference in the Prospectus pursuant to Item 12 of Form S-3,
excluding any documents or portions of such documents which are
deemed under the rules and regulations of the Commission under the
Act not to be incorporated by reference; and any reference herein
to the terms “amend,” “amendment” or
“supplement” with respect to the Registration Statement
or the Prospectus shall be deemed to refer to and include the
filing of any document under the Exchange Act deemed to be
incorporated therein by reference after the date of this Agreement.
For purposes of this Agreement, “Effective Time” with
respect to the Registration Statement means (i) if Concur has
not advised the Representative that is proposes to amend such
registration statement, the date and time as of which such
registration statement, or the most recent post-effective amendment
thereto (if any) filed prior to the execution and delivery of this
Agreement, was declared effective by the Commission or has become
effective upon filing pursuant to Rule 462(c) under the Act, or
(ii) if Concur has advised the Representative that it proposes
to file an amendment or post-effective amendment to such
registration statement, the date and time as of which such
registration statement, as amended by such amendment or
post-effective amendment, as the case may be, is declared effective
by the Commission. “Effective Date” with respect to the
Registration Statement means the date of the Effective Time
thereof.
(b) At the Effective Time, the
Registration Statement and the Prospectus conformed, and any
proposed amendments thereof and supplements thereto relating to the
Designated Securities will conform, in all material respects to the
requirements of the Act and the rules and regulations of the
Commission thereunder; each document filed pursuant to the Exchange
Act and incorporated by reference in the Prospectus complied when
so filed as to form with the Exchange Act and the rules and
regulations thereunder; on the Effective Date neither the
Registration Statement nor the Prospectus as of the date thereof
and on the Closing Date included or will include any untrue
statement of a material fact or omitted or will omit to state any
material fact required to be stated therein or necessary to make
the statements therein, in the case of the Registration Statement,
not misleading, or in the case of the Prospectus, in light of the
circumstances in which they were made, not misleading; provided,
however, that Concur makes no representations as to any statements
or omissions made in reliance upon and in conformity with
information furnished to Concur by or on behalf of any Underwriter
for use in connection with the preparation of such
documents.
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3. Delivery Payment
. Delivery of and payment for the
Designated Securities shall be made at the office, on the date and
at the time specified in the Underwriting Agreement (the
“Closing Date”), which Closing Date may be postponed by
agreement between the Underwriters, or the Representative, as the
case may be, and Concur. Delivery of the Designated Securities
shall be made to the Underwriters or, if appropriate, the
Representative for the respective accounts of the Underwriters, in
either case, against payment by the Underwriters directly or
through the Representative of the purchase price thereof to or upon
the order of Concur by certified or official bank check or checks
payable in New York Clearing House funds, unless otherwise agreed
in the Underwriting Agreement. Certificates for the Designated
Securities shall be registered in such names and in such
denominations as the Representative may request in writing not less
than one full business day in advance of the Closing
Date.
If so requested by the Underwriters
or the Representative, as the case may be, Concur agrees to have
the Designated Securities available for inspection, checking and
packaging in New York, New York, at least one business day prior to
the Closing Date.
4. Offering by
Underwriters . It is
understood that the Underwriters propose to offer the Designated
Securities for sale to the public upon the terms and conditions set
forth in the Prospectus.
5. Agreements
. Concur agrees with the
Underwriters that:
(a) Concur will cause the Prospectus
Supplement to be filed pursuant to Rule 424 under the Act and will
promptly advise the Underwriters or the Representative, as the case
may be, when the Prospectus Supplement has been so filed, and prior
to the termination of the offering of the Designated Securities
will promptly advise such Underwriters or Representative
(i) when any amendment to the Registration Statement has been
declared effective or has become effective upon filing pursuant to
Rule 462(c) under the Act or any further supplement to the
Prospectus has been filed, (ii) of any request by the
Commission for any amendment of the Registration Statement or the
Prospectus or for any additional information, (iii) of the
issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the institution or
threatening of any proceeding for that purpose and (iv) of the
receipt by Concur of any notification with respect to the
suspension of the qualification of the Designated Securities for
sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose. Concur will use its best efforts to
prevent the issuance of any such stop order and, if issued, to
obtain as soon as possible the withdrawal thereof. Concur will not
file any amendment to the Registration Statement or supplement to
the Prospectus relating to the Designated Securities unless it has
furnished the Underwriters or the Representative, as the case may
be, a copy prior to filing and will not file any such proposed
amendment or supplement to which such Underwriters or
Representative reasonably objects.
(b) If, at any time when a
prospectus relating to the Designated Securities is required to be
delivered under the Act or any other applicable securities law, any
event occurs as a result of which the Prospectus as then amended or
supplemented would include any untrue statement of a material fact
or omit to state any material fact necessary to make the
statements
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therein, in the light of the
circumstances under which they were made, not misleading, or if it
shall be necessary to amend or supplement the Prospectus to comply
with the Act or the Exchange Act or the respective rules
thereunder, Concur will promptly notify the Underwriters or the
Representative, as the case may be, and will promptly prepare and
file with the Commission, subject to paragraph (a) of this
Section 5, an amendment or supplement which will correct such
statement or omission or an amendment which will effect such
compliance.
(c) Concur will make generally
available to its security holders and to the Underwriters or the
Representative, as the case may be, as soon as practicable, but not
later than 40 days after the end of the 12-month period beginning
at the end of the fiscal quarter of Concur during which the filing
of the Prospectus Supplement pursuant to Rule 424 under the Act
first occurs (except not later than 75 days if such filing date-is
in the last fiscal quarter), an earnings statement (which need not
be audited) of Concur and its consolidated subsidiaries, covering
such 12-month period, which will satisfy the provisions of
Section 11 (a) of the Act.
(d) Concur will furnish to the
Underwriters or the Representative, as the case may be, and counsel
for such Underwriters or for such Representative copies of the
Registration Statement (including, if requested, the exhibits
thereto and the documents incorporated by reference in the
Prospectus) and each amendment or supplement thereto relating to
the Designated Securities which is thereafter filed pursuant to
paragraph (a) or (b) of
