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As filed with the Securities and Exchange Commission on October 29, 1999
Registration No. 333-_______
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
CONCUR TECHNOLOGIES, INC.
(Exact Name of Registrant as Specified in Its Charter)
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<S> <C>
Delaware 91-1608052
(State or Other Jurisdiction (I.R.S. Employer
of Incorporation or Organization) Identification No.)
</TABLE>
6222 185th Avenue NE
Redmond, Washington 98052
(Address of Principal Executive Offices, including Zip Code)
Concur Technologies 401(k) Plan
(Full Title of the Plans)
S. Steven Singh
President and Chief Executive Officer
Concur Technologies, Inc.
6222 185th Avenue NE
Redmond, Washington 98052
(425) 702-8808
(Name, Address and Telephone Number of Agent For Service)
Copies to:
Horace L. Nash, Esq.
Nicholas S. Khadder, Esq.
Fenwick & West LLP
Two Palo Alto Square
Palo Alto, California 94306
CALCULATION OF REGISTRATION FEE
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Proposed Maximum
Offering Price Proposed Maximum
Title of Securities Amount to be Per Share (1) Aggregate Offering Amount of
to be Registered Registered Price Registration Fee
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<S> <C> <C> <C> <C>
Common Stock
par value $0.001 per share(2) 320,000 $11.03125 $3,530,000 $981.34
- ------------------------------------ ----------------- ------------------- ----------------------- -------------------
</TABLE>
(1) Estimated pursuant to Rule 457(c) solely for the purposes of calculating
the registration fee. The proposed maximum offering price per share is
based upon the average of the high and low prices for a share reported on
the Nasdaq National Market on October 25, 1999.
(2) Relates to Common Stock to be offered or sold pursuant to the Concur
Technologies, Inc. 401(k) Plan (the "Plan"). In addition, pursuant to Rule
416(c) under the Securities Act of 1933, this Registration Statement also
covers an indeterminate amount of interests to be offered or sold pursuant
to the Plan described herein.
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Concur Technologies, Inc.
REGISTRATION STATEMENT ON FORM S-8
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed with the Securities and Exchange Commission
(the "Commission") are incorporated herein by reference:
(a) The Registrant's latest prospectus filed pursuant to Rule 424(b) under
the Securities Act of 1933, as amended (the "Securities Act"), that
contains audited financial statements of the Registrant for the fiscal
years ended September 30, 1996, 1997 and 1998 and unaudited financial
statements for the nine months ended June 30, 1998 and 1999 (Reg. No.
333-81227).
(b) The Registrant's Quarterly Reports on Form 10-Q for the fiscal
quarters ended December 31, 1998, March 31, 1999 and June 30, 1999.
(c) The Registrant's Current Report on Form 8-K filed with the Commission
on June 15, 1999, as amended on August 12, 1999.
(d) The description of the Registrant's Common Stock incorporated by
reference (to portions of Registrant's Registration Statement on Form
S-1, Reg. No. 333-62299) in the Registrant's Registration Statement on
Form 8-A filed with the Commission on December 7, 1998 under Section
12(g) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), including any amendment or report filed for the
purpose of updating such description.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment which indicates that all securities registered hereby
have been sold or which deregisters all securities then remaining unsold, shall
be deemed incorporated by reference herein and to be a part hereof from the date
of the filing of such documents.
Item 4. Description of Securities.
Not applicable; the class of securities to be offered is registered under
Section 12 of the Exchange Act.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers and Limitation of Liability.
As permitted by Section 145 of the Delaware General Corporation Law
("DGCL"), the Registrant's Certificate of Incorporation includes a provision
that eliminates the personal liability of its directors to the Registrant or its
stockholders for monetary damages for breach of fiduciary duty as a director,
except for liability: (i) for any breach of the director's duty of loyalty to
the corporation or its stockholders; (ii) for acts or omissions not in good
faith or that involve intentional misconduct or a knowing violation of law;
(iii) under section 174 of the DGCL; or (iv) for any transaction from which the
director derived an improper personal benefit. In addition, as permitted by
Section 145 of the DGCL, the Bylaws of the Registrant provide that: (i) the
Registrant is required to indemnify its directors and executive officers to the
fullest extent permitted by the DGCL (except if such person is seeking indemnity
in connection with a proceeding (or part thereof) initiated by such person and
not authorized by the Board of Directors); (ii) the Registrant may, in its
discretion, indemnify other officers, employees and agents as set forth in the
DGCL; (iii) upon receipt of an undertaking to repay such advances if
indemnification is determined to be unavailable, the Registrant is required to
advance expenses, as incurred, to its directors and executive officers
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to the fullest extent permitted by the DGCL in connection with a proceeding
(except if the expenses incurred by such person are incurred because the
Registrant is directly bringing a claim, in a proceeding, against such person,
alleging that such person has breached his or her duty of loyalty to the
Registrant, committed an act or omission not in good faith or that involves
intentional misconduct or a knowing violation of law, or derived an improper
personal benefit from a transaction); (iv) the rights conferred in the Bylaws
are not exclusive and the Registrant is authorized to enter into indemnity
agreements with its directors, officers, employees and agents; and (v) the
Registrant may not retroactively amend the Bylaw provisions relating to
indemnity.
The Registrant's policy is to enter into Indemnity Agreements with each of
its directors and executive officers. The Indemnity Agreements provide that
directors and executive officers will be indemnified and held harmless to the
fullest possible extent permitted by law including against all expenses
(including attorneys' fees), judgments, fines and settlement amounts paid or
reasonably incurred by them in any action, suit or proceeding, including any
derivative action by or in the right of the Registrant, on account of their
services as directors, officers, employees or agents of the Registrant or as
directors, officers, employees or agents of any other company or enterprise when
they are serving in such capacities at the request of the Registrant. The
Registrant will not be obligated pursuant to the agreements to indemnify or
advance expenses to an indemnified party with respect to proceedings or claims:
(i) initiated by the indemnified party and not by way of defense, except with
respect to a proceeding authorized by the Board of Directors and successful
proceedings brought to enforce a right to indemnification under the indemnity
agreements; (ii) for any amounts paid in settlement of a proceeding unless the
Registrant consents to such settlement; (iii) on account of any suit in which
judgment is rendered against the indemnified party for an accounting of profits
made from the purchase or sale by the indemnified party of securities of the
Registrant pursuant to the provisions of Section 16(b) of the Exchange Act and
related laws; (iv) on account of conduct by an indemnified party that is finally
adjudged to have been in bad faith or conduct that the indemnified party did not
reasonably believe to be in, or not opposed to, the best interests of the
Registrant; (v) on account of any criminal action or proceeding arising out of
conduct that the indemnified party had reasonable cause to believe was unlawful;
or (vi) if a final decision by a court having jurisdiction in the matter shall
determine that such indemnification is not lawful.
The Indemnity Agreement requires a director or executive officer to
reimburse the Registrant for expenses advanced only to the extent it is
ultimately determined that the director or executive officer is not entitled,
under Delaware law, the Bylaws, his or her indemnity agreement or otherwise to
be indemnified for such expenses. The Indemnity Agreement provides that it is
not exclusive of any rights a director or executive officer may have under the
Certificate of Incorporation, Bylaws, other agreements, any majority-in-interest
vote of the stockholders or vote of disinterested directors, Delaware law or
otherwise.
The indemnification provision in the Bylaws, and the indemnity agreements
entered into between the Registrant and its directors and executive officers,
may be sufficiently broad to permit indemnification of the Registrant's
directors and executive officers for liabilities arising under the Securities
Act.
As authorized by the Registrant's Bylaws, the Registrant has obtained
directors and officers liability insurance.
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Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
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Exhibit
Number Exhibit Title
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4.01 Registrant's Certificate of Incorporation (incorporated herein by
reference to Exhibit 3.01 of the Registrant's Registration Statement
on Form S-1 (Reg. No. 333-62299) declared effective by the Commission
on December 16, 1998 (the "December 1998 S-1")).
4.02 Registrant's Certificate of Designation (incorporated herein by
reference to Exhibit 3.02 of the December 1998 S-1).
4.03 Registrant's Amended and Restated Certificate of Incorporation
(incorporated herein by reference to Exhibit 4.03 of the Registration
Statement on Form S-8 (Reg. No. 333-70455) filed with the Commission
on January 12, 1999).
4.04 Registrant's Bylaws (incorporated herein by reference to Exhibit 3.04
of the December 1998 S-1).
4.05 Specimen Certificate for Registrant's Common Stock (incoporated herein
by reference to Exhibit 4.01 of the December S-1).
4.06 Third Amended and Restated Information and Registration Rights
Agreement dated May 26, 1999 (incorporated herein by reference to
Exhibit 4.2 of the Registrant's Current Report on Form 8-K, as
amended, filed with the Commission on June 1, 1999.)
4.07 Registrant's 401(k) Plan and Trust (incorporated herein by reference
to Exhibit 10.05 of the December 1998 S-1).
5.01 Internal Revenue Service determination letter dated October 9, 1996 to
the effect that the Plan is qualified under Section 401 of the
Internal Revenue. The Registrant and the Plan undertake to submit any
amendments to the Plan not covered by the determination letters
included herein as Exhibits and to make all changes required by the
Internal Revenue Service in order to qualify the Plan.
23.01 Consent of Ernst & Young LLP, Independent Auditors.
24.01 Power of Attorney (contained on the signature pages of this
Registration Statement).
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Item 9. Undertakings.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the Registration Statement (or the most
recent post-effective amendment thereof) which, individually or
in the aggregate, represent a fundamental change in the
information set forth in the Registration Statement.
Notwithstanding the foregoing, any increase or decrease in the
volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered)
and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent no more than
a 20 percent change in the maximum aggregate
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offering price set forth in the "Calculation of Registration Fee"
table in the effective Registration Statement; and
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the Registration
Statement or any material change to such information in the
Registration Statement.
Provided, however, that paragraphs (1)(i) and (1)(ii) above do not
apply if the information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed with or furnished to
the Commission by the Registrant pursuant to Section 13 or Section 15(d) of the
Exchange Act that are incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the Registration Statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the provisions discussed in Item 6 hereof, or otherwise,
the Registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered hereby, the Registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act and will be governed by
the final adjudication of such issue.
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SIGNATURES
THE REGISTRANT. Pursuant to the requirements of the Securities Act of 1933,
the Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the city of Redmond, state of Washington, on this 25th day
of October, 1999.
Concur Technologies, Inc.
By: /s/ S. Steven Singh
-------------------------------------
S. Steven Singh
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS that each individual whose signature
appears below constitutes and appoints S. Steven Singh and Sterling R. Wilson,
and each of them, his true and lawful attorneys-in-fact and agents with full
power of substitution, for him and in his name, place and stead, in any and all
capacities, to sign any and all amendments (including post-effective amendments)
to this Registration Statement on Form S-8, and to file the same with all
exhibits thereto and all documents in connection therewith, with the Securities
and Exchange Commission, granting unto said attorneys-in-fact and agents, and
each of them, full power and authority to do and perform each and every act and
thing requisite and necessary to be done in and about the premises, as fully to
all intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents or any of them, or his or
their substitute or substitutes, may lawfully do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
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<CAPTION>
Signature Title Date
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<S> <C> <C>
/s/ S. Steven Singh President, Chief Executive Officer and October 25, 1999
- ---------------------------------- Chairman of the Board of Directors
S. Steven Singh (principal executive officer)
/s/ Sterling R. Wilson Chief Financial Officer and Executive October 25, 1999
- ---------------------------------- Vice President of Operations
Sterling R. Wilson (principal financial officer and
principal accounting officer)
/s/ Jeffrey D. Brody Director October 25, 1999
- ----------------------------------
Jeffrey D. Brody
/s/ Norman A. Fogelsong Director October 25, 1999
- ----------------------------------
Norman A. Fogelsong
/s/ Russell P. Fradin Director October 25, 1999
- ----------------------------------
Russell P. Fradin
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<TABLE>
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Signature Title Date
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<S> <C> <C>
/s/ Edward P. Gilligan Director October 25, 1999
- ----------------------------------
Edward P. Gilligan
/s/ Michael J. Levinthal Director October 25, 1999
- ----------------------------------
Michael J. Levinthal
/s/ James D. Robinson III Director October 25, 1999
- ----------------------------------
James D. Robinson III
</TABLE>
THE PLAN. Pursuant to the requirements of the Securities Act of 1933, the
trustees (or other persons who administer the employee benefit plan) have duly
caused this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized in the City of Redmond, State of
Washington, on October 25, 1999.
Concur Technologies, Inc. 401(k) Plan
By: /s/ Sterling R. Wilson
--------------------------------------
Name: Sterling R. Wilson
-----------------------------------
Chief Financial Officer and
Executive Vice President of
Operations
Title: ----------------------------------
6
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Exhibit Index
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<CAPTION>
Exhibit
Number Exhibit Title
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<S> <C>
5.01 Internal Revenue Service determination letter dated October 9, 1996 to
the effect that the Plan is qualified under Section 401 of the
Internal Revenue. The Registrant and the Plan undertake to submit any
amendments to the Plan not covered by the determination letters
included herein as Exhibits and to make all changes required by the
Internal Revenue Service in order to qualify the Plan.
23.01 Consent of Ernst & Young LLP, Independent Auditors.
24.01 Power of Attorney (contained on the signature pages of this
Registration Statement).
</TABLE>
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EXHIBIT 5.01
Internal Revenue Service Department of the Treasury
District Director
EP/EO Division
2 Cupania Circle
Monterey Park, CA 91755-7406
Date October 9, 1996 Advisory Letter Number:
V1950251
Type of Plan:
Walter D. Wengart 401(k) Plan
CORBEL & COMPANY Person to Contact:
1660 Prudential Drive Lonnie Shankling
Jacksonville, FL 32207-8917 Telephone Number:
(213) 725-0767
Refer Reply to:
EP/EO:TB:CLAS:LPS
Dear Applicant:
We have reviewed your specimen document identified above as part of our Volume
Submitter Program. It is our opinion that the document meets the requirements
of the Internal Revenue Code as amended by the Tax Reform Act of 1986.
This opinion may change baed on the release of the temporary and/or final
regulations or other enhancements of the tax law, which would affect deferred
compensation plans issued after the date of this letter. In the event this
occurs, you will be notified by this office of the need for amendments to your
document.
The acceptability of the form of this document does not constitute a
determination of the qualification of an adopting employer's plan under section
401(a) of the Internal Revenue Code, or of the exemption of the related trust
or custodial account under section 501(a). The qualification of the adopting
employer may also be affected by the options or variables selected by the
employer.
An employer adopting this specimen document who wants such a determination and
reliance on the volume submitter letter must file form 5307, Short Form
Application for Determination for Employee Benefit Plan with the Key District
Director. Adopting employers must individually amend the plan to remain in
compliance. A copy of this letter must be submitted with each application. Any
alteration made to the specimen document after the date of this letter must be
indicated in a cover letter.
If you have any questions, please contact the person whose name and telephone
number are shown above.
Sincerely,
/s/ STEVEN A. JENSEN
------------------------------
Steven A. Jensen
District Director
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EXHIBIT 23.01
CONSENT OF ERNST & YOUNG LLP INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement (Form
S-8) pertaining to the Concur Technologies 401(k) plan, of our reports: a) dated
October 27, 1998 (except Note 18, as to which the date is December 9, 1998, with
respect to the consolidated financial statements of Concur Technologies, Inc.,
(the Company); b) dated April 21, 1999, with respect to the financial statements
of Seeker Software, Inc.; c) dated August 14, 1998, with respect to the
financial statements of 7Software, Inc.; and d) dated June 30, 1999 with respect
to the supplemental consolidated financial statements of the Company, all
included in the Registration Statement Form S-1, effective with the Securities
and Exchange Commission on July 23, 1999.
/s/ ERNST & YOUNG LLP
----------------------
ERNST & YOUNG LLP
Seattle, Washington
October 29, 1999
