EXHIBIT 1.2
CONCUR TECHNOLOGIES,
INC.
DEBT SECURITIES
UNDERWRITING
AGREEMENT
STANDARD
PROVISIONS
CONCUR TECHNOLOGIES,
INC.
DEBT 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 debt 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 (A) if Concur has
not advised the Representative that it 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
(B) 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
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 of the Commission thereunder; the Indenture conforms in
all material respects to the requirements of the Trust Indenture
Act of 1939, as amended (the “Trust Indenture Act”) and
the rules and regulations of the Commission thereunder; and neither
the Registration Statement on the Effective Date 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 (i) that part of the Registration
Statement which shall constitute a Trustee’s Statement of
Eligibility and Qualifications (Form T-1) under the Trust Indenture
Act and (ii) any statements or omissions
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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.
3. Delivery and
Payment . Delivery of and
payment for the Designated Securities shall be made at the offices
of counsel for the Underwriters, 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.
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(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
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
