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Exhibit
99.1
4,700,000
Shares
Concur Technologies,
Inc.
Common Stock ($0.001 par
value per share)
UNDERWRITING
AGREEMENT
September 24,
2007
C REDIT S
UISSE S ECURITIES (USA)
LLC
D EUTSCHE B
ANK S ECURITIES I NC
.,
As Representatives of the Several
Underwriters,
c/o Credit Suisse Securities (USA)
LLC,
Eleven Madison
Avenue,
New York, N.Y.
10010-3629
Dear Sirs:
1. Introductory .
Concur Technologies, Inc., a Delaware corporation (“
Company ”), agrees with the several Underwriters named
in Schedule A hereto (“ Underwriters ”) to issue
and sell to the several Underwriters 4,700,000 shares (“
Firm Securities ”) of its common stock, $0.001 par
value per share (“ Securities ”) and also
proposes to issue and sell to the Underwriters, at the option of
the Underwriters, an aggregate of not more than 705,000 additional
shares of its Securities (“ Optional Securities
”) as set forth below. The Firm Securities and the Optional
Securities are herein collectively called the “ Offered
Securities ”.
2. Representations and
Warranties of the Company . The Company represents and warrants
to, and agrees with, the several Underwriters that:
(a) Filing and
Effectiveness of Registration Statement; Certain Defined Terms
. The Company has filed with the Commission a registration
statement on Form S-3 (No. 333-146062), including a related
prospectus or prospectuses, covering the registration of the
Offered Securities under the Act, which has become effective.
“ Registration Statement ” at any particular
time means such registration statement in the form then filed with
the Commission, including any amendment thereto, any document
incorporated by reference therein and all 430B Information and all
430C Information with respect to such registration statement, that
in any case has not been superseded or modified. “
Registration Statement ” without reference to a time
means the Registration Statement as of the Effective Time. For
purposes of this definition, 430B Information shall be considered
to be included in the Registration Statement as of the time
specified in Rule 430B.
For purposes of this
Agreement:
“ 430B
Information ” means information included in a prospectus
then deemed to be a part of the Registration Statement pursuant to
Rule 430B(e) or retroactively deemed to be a part of the
Registration Statement pursuant to Rule 430B(f).
“ 430C
Information ” means information included in a prospectus
then deemed to be a part of the Registration Statement pursuant to
Rule 430C.
“ Act ”
means the Securities Act of 1933, as amended.
“ Applicable
Time ” means 5:20 pm (Eastern time) on the date of this
Agreement.
“ Closing Date
” has the meaning defined in Section 3
hereof.
“ Commission
” means the Securities and Exchange Commission.
“ Effective Time
” of the Registration Statement relating to the Offered
Securities means the time of the first contract of sale for the
Offered Securities.
“ Exchange Act
” means the Securities Exchange Act of 1934.
“ Final
Prospectus ” means the Statutory Prospectus, including
the documents incorporated by reference therein, that discloses the
public offering price other 430B Information and other final terms
of the Offered Securities and otherwise satisfies
Section 10(a) of the Act.
“ General Use Issuer
Free Writing Prospectus ” means any Issuer Free Writing
Prospectus that is intended for general distribution to prospective
investors, as evidenced by its being so specified in Schedule B to
this Agreement.
“ Issuer Free
Writing Prospectus ” means any “issuer free writing
prospectus,” as defined in Rule 433, relating to the
Offered Securities in the form filed or required to be filed with
the Commission or, if not required to be filed, in the form
retained in the Company’s records pursuant to
Rule 433(g).
“ Limited Use Issuer
Free Writing Prospectus ” means any Issuer Free Writing
Prospectus that is not a General Use Issuer Free Writing
Prospectus.
“Representatives” means Credit Suisse
Securities (USA) LLC and Deutsche Bank Securities Inc.
“ Rules and
Regulations ” means the rules and regulations of the
Commission.
“ Securities
Laws ” means, collectively, the Sarbanes-Oxley Act of
2002 (“ Sarbanes-Oxley ”), the Act, the Exchange
Act, the Rules and Regulations, the auditing principles, rules,
standards and practices applicable to auditors of
“issuers” (as defined in Sarbanes-Oxley) promulgated or
approved by the Public Company Accounting Oversight Board and the
rules of the NASDAQ Stock Market (“ Exchange Rules
”).
“ Statutory
Prospectus ” with reference to any particular time means
the prospectus, including the documents incorporated by reference
therein, relating to the Offered Securities that is included in the
Registration Statement immediately prior to that time, including
all 430B Information and all 430C Information with
respect to the Registration Statement. For purposes of the
foregoing definition, 430B Information shall be considered to
be included in the Statutory Prospectus only as of the actual time
that form of prospectus (including a prospectus supplement) is
filed with the Commission pursuant to Rule 424(b) and not
retroactively.
Unless otherwise specified, a
reference to a “rule” is to the indicated rule under
the Act.
(b) Compliance with
Securities Act Requirements . (i) (A) At the time the
Registration Statement initially became effective, (B) at the
time of each amendment thereto for the purposes of complying with
Section 10(a)(3) of the Act (whether by post-effective
amendment, incorporated report or form of prospectus), (C) at
the Effective Time relating to the Offered Securities and
(D) on the Closing Date, the Registration Statement conformed
and will conform in all respects to
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the requirements of the Act
and the Rules and Regulations and did not and will not include any
untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the
statements therein not misleading and (ii) (A) on its date,
(B) at the time of filing the Final Prospectus pursuant to
Rule 424(b) and (C) on the Closing Date, the Final
Prospectus will conform in all respects to the requirements of the
Act and the Rules and Regulations, and will not include any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were
made, not misleading. The preceding sentence does not apply to
statements in or omissions from any such document based upon
written information furnished to the Company by any Underwriter
through the Representatives specifically for use therein, it being
understood and agreed that the only such information is that
described as such in Section 8(b) hereof.
(c) Automatic Shelf
Registration Statement . (i) Well-Known Seasoned
Issuer Status . (A) At the time of initial filing of the
Registration Statement, (B) at the time of the most recent
amendment thereto for the purposes of complying with
Section 10(a)(3) of the Act (whether such amendment was by
post-effective amendment, incorporated report filed pursuant to
Section 13 or 15(d) of the Exchange Act or form of
prospectus), and (C) at the time the Company or any person
acting on its behalf (within the meaning, for this clause only, of
Rule 163(c)) made any offer relating to the Offered Securities in
reliance on the exemption of Rule 163, the Company was a
“well known seasoned issuer” as defined in Rule 405,
including not having been an “ineligible issuer” as
defined in Rule 405.
(ii) Effectiveness of
Automatic Shelf Registration Statement . The Registration
Statement is an “automatic shelf registration
statement,” as defined in Rule 405. If immediately prior to
the Renewal Deadline (as hereinafter defined), any of the Offered
Securities remain unsold by the Underwriters, the Company will
prior to the Renewal Deadline file, if it has not already done so
and is eligible to do so, a new automatic shelf registration
statement relating to the Offered Securities, in a form
satisfactory to the Representatives. If the Company is no longer
eligible to file an automatic shelf registration statement, the
Company will prior to the Renewal Deadline, if it has not already
done so, file a new shelf registration statement relating to the
Offered Securities, in a form satisfactory to the Representatives,
and will use its reasonable best efforts to cause such registration
statement to be declared effective within 180 days after the
Renewal Deadline. The Company will take all other action necessary
or appropriate to permit the public offering and sale of the
Offered Securities to continue as contemplated in the expired
registration statement relating to the Offered Securities.
References herein to the Registration Statement shall include such
new automatic shelf registration statement or such new shelf
registration statement, as the case may be. “
Renewal Deadline ” means the third anniversary of
the initial effective time of the Registration
Statement.
(iii) Eligibility to Use
Automatic Shelf Registration Form . The Company has not
received from the Commission any notice pursuant to Rule 401(g)(2)
objecting to use of the automatic shelf registration statement
form. If at any time when Offered Securities remain unsold by the
Underwriters the Company receives from the Commission a notice
pursuant to Rule 401(g)(2) or otherwise ceases to be eligible to
use the automatic shelf registration statement form, the Company
will (i) promptly notify the Representatives,
(ii) promptly file a new registration statement or
post-effective amendment on the proper form relating to the Offered
Securities, in a form satisfactory to the Representatives,
(iii) use its reasonable best efforts to cause such
registration statement or post-effective amendment to be declared
effective as soon as practicable, and (iv) promptly notify the
Representatives of such effectiveness. The Company will take all
other action necessary or appropriate to permit the public offering
and sale of the Offered Securities to continue
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as contemplated in the
registration statement that was the subject of the Rule 401(g)(2)
notice or for which the Company has otherwise become ineligible.
References herein to the Registration Statement shall include such
new registration statement or post-effective amendment, as the case
may be.
(iv) Filing Fees . The
Company has paid or shall pay the required Commission filing fees
relating to the Offered Securities within the time required by Rule
456(b)(1) without regard to the proviso therein and otherwise in
accordance with Rules 456(b) and 457(r).
(d) Ineligible Issuer
Status . (i) At the earliest time after the filing of the
Registration Statement that the Company or another offering
participant made a bona fide offer (within the meaning of Rule
164(h)(2)) of the Offered Securities and (ii) at the date of
this Agreement, the Company was not and is not an “ineligible
issuer,” as defined in Rule 405, including (x) the
Company or any other subsidiary in the preceding three years not
having been convicted of a felony or misdemeanor or having been
made the subject of a judicial or administrative decree or order as
described in Rule 405 and (y) the Company in the preceding
three years not having been the subject of a bankruptcy petition or
insolvency or similar proceeding, not having had a registration
statement be the subject of a proceeding under Section 8 of
the Act and not being the subject of a proceeding under
Section 8A of the Act in connection with the offering of the
Securities, all as described in Rule 405.
(e) General Disclosure
Package . As of the Applicable Time, neither (i) the
General Use Issuer Free Writing Prospectuses issued at or prior to
the Applicable Time and the preliminary prospectus, dated
September 14, 2007 (which is the most recent Statutory
Prospectus distributed to investors generally), and the other
information, if any, stated in Schedule B to this Agreement to be
included in the General Disclosure Package, all considered together
(collectively, the “ General Disclosure Package
”), nor (ii) any individual Limited Use Issuer Free
Writing Prospectus, when considered together with the General
Disclosure Package, included any untrue statement of a material
fact or omitted to state any material fact necessary in order to
make the statements therein, in the light of the circumstances
under which they were made, not misleading. The preceding sentence
does not apply to statements in or omissions from any Statutory
Prospectus or any Issuer Free Writing Prospectus in reliance upon
and in conformity with written information furnished to the Company
by any Underwriter through the Representatives specifically for use
therein, it being understood and agreed that the only such
information furnished by any Underwriter consists of the
information described as such in Section 8(b)
hereof.
(f) Issuer Free Writing
Prospectuses . Each Issuer Free Writing Prospectus, as of its
issue date and at all subsequent times through the completion of
the public offer and sale of the Offered Securities or until any
earlier date that the Company notified or notifies the
Representatives as described in the next sentence, did not, does
not and will not include any information that conflicted, conflicts
or will conflict with the information then contained in the
Registration Statement. If at any time following issuance of an
Issuer Free Writing Prospectus there occurred or occurs an event or
development as a result of which such Issuer Free Writing
Prospectus conflicted or would conflict with the information then
contained in the Registration Statement or as a result of which
such Issuer Free Writing Prospectus, if republished immediately
following such event or development, would include an untrue
statement of a material fact or omitted or would omit to state a
material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading, (i) the Company has promptly notified or will
promptly notify the Representatives and (ii) the Company has
promptly amended or will promptly amend or supplement such Issuer
Free Writing Prospectus to eliminate or correct such conflict,
untrue statement or omission. The first sentence of this paragraph
(f) does not apply to statements in or omissions from any
Issuer Free Writing Prospectus in reliance upon and in conformity
with written information furnished to the Company by any
Underwriter through the Representatives specifically for use
therein, it being understood and agreed that the only
such
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information furnished by any
Underwriter consists of the information described as such in
Section 8(b) hereof.
(g) Good standing of the
Company . The Company has been duly incorporated and is an
existing corporation in good standing under the laws of the State
of Delaware, with power and authority (corporate and other) to own
its properties and conduct its business as described in the General
Disclosure Package; and the Company is duly qualified to do
business as a foreign corporation in good standing in all other
jurisdictions in which its ownership or lease of property or the
conduct of its business requires such qualification, except for any
jurisdiction where the failure to be so qualified would not,
individually or in the aggregate, have a material adverse effect on
the condition (financial or otherwise), results of operations,
business, properties or prospects of the Company and its
subsidiaries taken as a whole (“ Material Adverse
Effect ”).
(h) Subsidiaries .
Each subsidiary of the Company has been duly incorporated and is an
existing corporation in good standing under the laws of the
jurisdiction of its incorporation, with power and authority
(corporate and other) to own its properties and conduct its
business as described in the General Disclosure Package; and each
subsidiary of the Company is duly qualified to do business as a
foreign corporation in good standing in all other jurisdictions in
which its ownership or lease of property or the conduct of its
business requires such qualification, except for any such
jurisdiction where the failure to be so qualified would not have a
Material Adverse Effect; all of the issued and outstanding capital
stock of each subsidiary of the Company has been duly authorized
and validly issued and is fully paid and nonassessable; and the
capital stock of each subsidiary owned by the Company, directly or
through subsidiaries, is owned free from liens, encumbrances and
defects; the Company has no “significant subsidiary,”
as that term is defined in Rule 1-02(w) of Regulation S-X under the
Act.
(i) Offered Securities
. The Offered Securities and all other outstanding shares of
capital stock of the Company have been duly authorized; the
authorized equity capitalization of the Company is as set forth in
the General Disclosure Package; all outstanding shares of capital
stock of the Company are, and, when the Offered Securities have
been delivered and paid for in accordance with this Agreement on
each Closing Date, such Offered Securities will have been, validly
issued, fully paid and nonassessable, will conform to the
information in the General Disclosure Package and to the
description of such Offered Securities contained in the Final
Prospectus; the stockholders of the Company have no preemptive
rights with respect to the Securities; and none of the outstanding
shares of capital stock of the Company have been issued in
violation of any preemptive or similar rights of any security
holder.
(j) No Finder’s
Fee . Except as disclosed in the General Disclosure Package,
there are no contracts, agreements or understandings between the
Company and any person that would give rise to a valid claim
against the Company or any Underwriter for a brokerage commission,
finder’s fee or other like payment in connection with this
offering.
(k) Registration
Rights . Except as disclosed in the General Disclosure Package,
there are no contracts, agreements or understandings between the
Company and any person granting such person the right to require
the Company to file a registration statement under the Act with
respect to any securities of the Company owned or to be owned by
such person or to require the Company to include such securities in
the securities registered pursuant to a Registration Statement or
in any securities being registered pursuant to any other
registration statement filed by the Company under the Act
(collectively, “ registration rights ”), and any
person to whom the Company has granted registration rights has
agreed not to exercise such rights until after the expiration of
the Lock-Up Period referred to in Section 5 hereof.
(l) Listing . The
Offered Securities have been approved for listing on the NASDAQ
Global Market, subject to notice of issuance.
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(m) Absence of Further
Requirements . No consent, approval, authorization, or order
of, or filing or registration with, any person (including any
governmental agency or body or any court) is required for the
consummation of the transactions contemplated by this Agreement in
connection with the offering, issuance and sale of the Offered
Securities by the Company, except such as have been obtained, or
made and such as may be required under state securities
laws.
(n) Title to Property
. Except as disclosed in the General Disclosure Package, the
Company and its subsidiaries have good and marketable title to all
real properties and all other properties and assets owned by them,
in each case free from liens, charges, encumbrances and defects
that would materially affect the value thereof or materially
interfere with the use made or to be made thereof by them and,
except as disclosed in the General Disclosure Package, the Company
and its subsidiaries hold any leased real or personal property
under valid and enforceable leases with no terms or provisions that
would materially interfere with the use made or to be made thereof
by them.
(o) Absence of Defaults
and Conflicts Resulting from Transaction . The execution,
delivery and performance of this Agreement, and the issuance and
sale of the Offered Securities will not result in a breach or
violation of any of the terms and provisions of, or constitute a
default or a Debt Repayment Triggering Event (as defined below)
under, or result in the imposition of any lien, charge or
encumbrance upon any property or assets of the Company or any of
its subsidiaries pursuant to, the charter or by-laws of the Company
or any of its subsidiaries, any statute, rule, regulation or order
of any governmental agency or body or any court, domestic or
foreign, having jurisdiction over the Company or any of its
subsidiaries or any of their properties, or any agreement or
instrument to which the Company or any of its subsidiaries is a
party or by which the Company or any of its subsidiaries is bound
or to which any of the properties of the Company or any of its
subsidiaries is subject; a “ Debt Repayment Triggering
Event ” means any event or condition that gives, or with
the giving of notice or lapse of time would give, the holder of any
note, debenture, or other evidence of indebtedness (or any person
acting on such holder’s behalf) the right to require the
repurchase, redemption or repayment of all or a portion of such
indebtedness by the Company or any of its subsidiaries.
(p) Absence of Existing
Defaults and Conflicts . Neither the Company nor any of its
subsidiaries is in violation of its respective charter or by-laws
or in default (or with the giving of notice or lapse of time would
be in default) under any existing obligation, agreement, covenant
or condition contained in any indenture, loan agreement, mortgage,
lease or other agreement or instrument to which any of them is a
party or by which any of them is bound or to which any of the
properties of any of them is subject, except such defaults that
would not, individually or in the aggregate, result in a Material
Adverse Effect.
(q) Authorization of
Agreement . This Agreement has been duly authorized, executed
and delivered by the Company.
(r) Possession of Licenses
and Permits . The Company and its subsidiaries possess, and are
in compliance with the terms of, all adequate certificates,
authorizations, franchises, licenses and permits (“
Licenses ”) necessary or material to the conduct of
the business now operated or proposed in the General Disclosure
Package to be operated by them and have not received any notice of
proceedings relating to the revocation or modification of any
Licenses that, if determined adversely to the Company or any of its
subsidiaries, would individually or in the aggregate have a
Material Adverse Effect.
(s) Absence of Labor
Dispute . No labor dispute with the employees of the Company or
any of its subsidiaries exists or, to the knowledge of the Company,
is imminent that could have a Material Adverse Effect.
6
(t) Intellectual Property
Rights. Except as disclosed in the General Disclosure Package,
the Company and its subsidiaries own, possess or can acquire on
reasonable terms sufficient trademarks, trade names, patent rights,
copyrights, domain names, licenses, approvals, trade secrets,
inventions, technology, know-how and other intellectual property
and similar rights, including registrations and applications for
registration thereof (collectively, “ Intellectual
Property Rights ”) necessary or material to the conduct
of the business now conducted or proposed in the General Disclosure
Package to be conducted by them, and the expected expiration of any
such Intellectual Property Rights would not, individually or in the
aggregate, have a Material Adverse Effect. Except as disclosed in
the General Disclosure Package (i) to the Company’s
knowledge, there are no rights of third parties to any of the
Intellectual Property Rights owned by the Company or its
subsidiaries; (ii) to the Company’s knowledge, there is
no material infringement, misappropriation, breach, default or
other violation, or the occurrence of any event that with notice or
the passage of time would constitute any of the foregoing, by the
Company, its subsidiaries or third parties of any of the
Intellectual Property Rights of the Company or its subsidiaries;
(iii) there is no pending or, to the Company’s
knowledge, threatened action, suit, proceeding or claim by others
challenging the Company’s or any subsidiary’s rights in
or to, or the violation of any of the terms of, any of their
Intellectual Property Rights, and the Company is unaware of any
facts which would form a reasonable basis for any such claim;
(iv) to the Company’s knowledge, there is no pending or
threatened action, suit, proceeding or claim by others challenging
the validity, enforceability or scope of any such Intellectual
Property Rights, and the Company is unaware of any facts which
would form a reasonable basis for any such claim; (v) there is
no pending or , to the Company’s knowledge, threatened
action, suit, proceeding or claim by others that the Company or any
subsidiary infringes, misappropriates or otherwise violates or
conflicts with any Intellectual Property Rights or other
proprietary rights of others and the Company is unaware of any
other fact which would form a reasonable basis for any such claim;
and (vi) none of the Intellectual Property Rights used by the
Company or its subsidiaries in their businesses has been obtained
or is being used by the Company or its subsidiaries in violation of
any contractual obligation binding on the Company, any of its
subsidiaries in violation of the rights of any persons, except in
each case covered by clauses (i) – (vi) such as
would not, if determined adversely to the Company or any of its
subsidiaries, individually or in the aggregate, have a Material
Adverse Effect.
(u) Environmental Laws
. Except as disclosed in the General Disclosure Package, neither
the Company nor any of its subsidiaries is in violation of any
statute, any rule, regulation, decision or order of any
governmental agency or body or any court, domestic or foreign,
relating to the use, disposal or release of hazardous or toxic
substances or relating to the protection or restoration of the
environment or human exposure to hazardous or toxic substances
(collectively, “ environmental laws ”), owns or
operates any real property contaminated with any substance that is
subject to any environmental laws, is liable for any off-site
disposal or contamination pursuant to any environmental laws, or is
subject to any claim relating to any environmental laws, which
violation, contamination, liability or claim would individually or
in the aggregate have a Material Adverse Effect; and the Company is
not aware of any pending investigation which might lead to such a
claim.
(v) Accurate
Disclosure . The statements in the General Disclosure Package
and the Final Prospectus under the headings “Description of
Capital Stock” and “Risk Factors – Our Ability
To Protect Our Intellectual Property Is Limited And Our Products
May Be Subject To Infringement Claims By Third Parties ”,
insofar as such statements summarize legal matters, agreements,
documents or proceedings discussed therein, are accurate and fair
summaries of such legal matters, agreements, documents or
proceedings and present the information required to be
shown.
(w) Absence of
Manipulation . The Company has not taken, directly or
indirectly, any action that is designed to or that has constituted
or that would reasonably be expected to cause or result
in
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the stabilization or
manipulation of the price of any security of the Company to
facilitate the sale or resale of the Offered Securities.
(x) Statistical and
Market-Related Data . Any third-party statistical and
market-related data included or incorporated by reference in a
Registration Statement, a Statutory Prospectus or the General
Disclosure Package are based on or derived from sources that the
Company believes to be reliable and accurate.
(y) Internal Controls and
Compliance with the Sarbanes-Oxley Act . Except as set forth in
the General Disclosure Package, the Company, its subsidiaries and
the Company’s Board of Directors (the “ Board
”) are in compliance with Sarbanes-Oxley and all applicable
Exchange Rules. The Company maintains a system of internal
controls, including, but not limited to, disclosure controls and
procedures, internal controls over accounting matters and financial
reporting, an internal audit function and legal and regulatory
compliance controls (collectively, “ Internal Controls
”) that comply with the Securities Laws and are sufficient to
provide reasonable assurances that (i) transactions are
executed in accordance with management’s general or specific
authorizations, (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with U.S.
General Accepted Accounting Principles and to maintain
accountability for assets, (iii) access to assets is permitted
only in accordance with management’s general or specific
authorization and (iv) the recorded accountability for assets
is compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences. The
Internal Controls are, or upon consummation of the offering of the
Offered Securities will be, overseen by the Audit Committee (the
“ Audit Committee ”) of the Board in accordance
with Exchange Rules. Except as disclosed in the General Disclosure
Package, the Company has not publicly disclosed or reported to the
Audit Committee or the Board, and, as the date hereof, within the
next 90 days the Company does not reasonably expect to publicly
disclose or report to the Audit Committee or the Board, a
significant deficiency, material weakness, change in Internal
Controls or fraud involving management or other employees who have
a significant role in Internal Controls (each, an “
Internal Control Event ”), any violation of, or
failure to comply with, the Securities Laws, or any matter which,
if determined adversely, would have a Material Adverse
Effect.
(z) Absence of Accounting
Issues . A member of the Audit Committee has confirmed to the
Chief Executive Officer, Chief Financial Officer or General Counsel
that, except as set forth in the General Disclosure Package, the
Audit Committee is not reviewing or investigating, and neither the
Company’s independent auditors nor its internal auditors have
recommended that the Audit Committee review or investigate,
(i) adding to, deleting, changing the application of, or
changing the Company’s disclosure with respect to, any of the
Company’s material accounting policies; (ii) any matter
which could result in a restatement of the Company’s
financial statements for any annual or interim period during the
current or prior three fiscal years; or (iii) any Internal
Control Event.
(aa) Litigation .
Except as disclosed in the General Disclosure Package, there are no
pending actions, suits or proceedings (including any inquiries or
investigations by any court or governmental agency or body,
domestic or foreign) against or affecting the Company, any of its
subsidiaries or any of their respective properties that, if
determined adversely to the Company or any of its subsidiaries,
would individually or in the aggregate have a Material Adverse
Effect, or would materially and adversely affect the ability of the
Company to perform its obligations under this Agreement, or which
are otherwise material in the context of the sale of the Offered
Securities; and no such actions, suits or proceedings (including
any inquiries or investigations by any court or governmental agency
or body, domestic or foreign) are, to the Company’s
knowledge, threatened or contemplated.
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(bb) Financial
Statements . The financial statements included in the
Registration Statement and the General Disclosure Package present
fairly the financial position of the Company and its consolidated
subsidiaries as of the dates shown and their results of operations
and cash flows for the periods shown, and such financial statements
have been prepared in conformity with the generally accepted
accounting principles in the United States applied on a consistent
basis and the schedules included in the Registration Statement
present fairly the information required to be stated therein; and
the assumptions used in preparing the pro forma financial
statements included in the Registration Statement and the General
Disclosure Package provide a reasonable basis for presenting the
significant effects directly attributable to the transactions or
events described therein, the related pro forma adjustments give
appropriate effect to those assumptions, and the pro forma columns
therein reflect the proper application of those adjustments to the
corresponding historical financial statement amounts; and the
financial statements of Outtask, Inc. included in the Registration
Statement and incorporated by reference therein comply as to form
in all material respects with the applicable accounting
requirements of the Act and the related rules and regulations
adopted by the SEC.
(cc) No Material Adverse
Change in Business . Except as disclosed in the General
Disclosure Package, since the end of the period covered by the
latest audited financial statements included in the General
Disclosure Package (i) there has been no material adverse
change, nor any development or event involving a prospective
material adverse change, in the condition (financial or otherwise),
results of operations, business, properties or prospects of the
Company and its subsidiaries, taken as a whole, (ii) except as
disclosed in or contemplated by the General Disclosure Package,
there has been no dividend or distribution of any kind declared,
paid or made by the Company on any class of its capital stock and
(iii) except as disclosed in or contemplated by the General
Disclosure Package, there has been no material adverse change in
the capital stock, short-term indebtedness, long-term indebtedness,
net current assets or net assets of the Company and its
subsidiaries.
(dd) Investment Company
Act . The Company is not and, after giving effect to the
offering and sale of the Offered Securities and the application of
the proceeds thereof as described in the General Disclosure
Package, will not be an “investment company” as defined
in the Investment Company Act of 1940 (the “ Investment
Company Act ”).
(ee) Ratings . No
“nationally recognized statistical rating organization”
as such term is defined for purposes of Rule 436(g)(2)
(i) has imposed (or has informed the Company that it is
considering imposing) any condition (financial or otherwise) on the
Company’s retaining any rating assigned to the Company or any
securities of the Company or (ii) has indicated to the Company
that it is considering any of the actions described in
Section 7(c)(ii) hereof.
(ff) Taxes. The
Company and its subsidiaries have filed all federal, state, local
and non-U.S. tax returns that are required to be filed or have
requested extensions thereof (except in any case in which the
failure so to file would not have a Material Adverse Effect); and,
except as set forth in the General Disclosure Package, the Company
and its subsidiaries have paid all taxes (including any
assessments, fines or penalties) required to be paid by them,
except for any such taxes, assessments, fines or penalties
currently being contested in good faith or as would not,
individually or in the aggregate, have a Material Adverse
Effect.
(gg) Insurance
Coverage. The Company and its subsidiaries are insured by
insurers with appropriately rated claims paying abilities against
such losses and risks and in such amounts as are prudent and
customary for the businesses in which they are engaged; all
policies of insurance and fidelity or surety bonds insuring the
Company or any of its subsidiaries or their respective businesses,
assets, employees, officers and directors are in full force and
effect; the Company and its subsidiaries are in compliance with the
terms of such policies and instruments in all material respects;
and there are no material claims by the Company or any of its
subsidiaries under any
9
such policy or instrument as
to which any insurance company is denying liability or defending
under a reservation of rights clause; neither the Company nor any
such subsidiary has been refused any insurance coverage sought or
applied for; and neither the Company nor any such subsidiary has
any reason to believe that it will not be able to renew its
existing insurance coverage as and when such coverage expires or to
obtain similar coverage from similar insurers as may be necessary
to continue its business at a cost that would not have a Material
Adverse Effect, except as set forth in or contemplated in the
General Disclosure Package.
(hh) Foreign
Operations. Each of the Company, its subsidiaries, and to the
Company’s knowledge, its officers, directors, agents and
employees, have not violated, and the Company’s participation
in the offering will not violate, and the Company has instituted
and maintains policies and procedures designed to ensure continued
compliance with each of the following laws: (a) anti-bribery
laws, including but not limited to, any applicable law, rule, or
regulation of any locality, including but not limited to any law,
rule, or regulation promulgated to implement the OECD Convention on
Combating Bribery of Foreign Public Officials in International
Business Transactions, signed December 17, 1997, including the
U.S. Foreign Corrupt Practices Act of 1977 or any other law, rule
or regulation of similar purpose and scope, (b) anti-money
laundering laws, including but not limited to, applicable federal,
state, international, foreign or other laws, regulations or
government guidance regarding anti-money laundering, including,
without limitation, Title 18 U.S. Code section 1956 and 1957, the
Patriot Act, the Bank Secrecy Act, and in
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