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EXHIBIT 10.19
STANDSTILL AGREEMENT
This Standstill Agreement (this "AGREEMENT") is made and entered into as
of August 10, 1998 by and between Portable Software Corporation, a Washington
corporation whose name effective August 3, 1998 is Concur Technologies, Inc.
("PORTABLE" or the "COMPANY"), and American Express Travel Related Services
Company, Inc. ("ATRS").
R E C I T A L S
A. Portable and certain investors are parties to a Series E Preferred
Stock Purchase Agreement (the "PURCHASE AGREEMENT").
B. Portable and AmEx desire that ATRS become a party to the Purchase
Agreement and purchase shares of Portable's Series E Preferred Stock.
C. Concurrently with the execution and delivery of this Agreement,
Portable is issuing a Warrant to AmEx exercisable for a maximum of Six Million
shares of Portable's capital stock.
D. As an inducement to Portable's sale of Series E Preferred Stock to
ATRS and issuance of the Warrant, ATRS and Portable desire to enter into this
Agreement, which, among other things, places limitations on ATRS's equity
ownership interest in Portable.
NOW, THEREFORE, in consideration of the above recitals and the mutual
covenants hereinafter set forth, Portable and ATRS hereby agree as follows:
1. EFFECTIVE DATE. This Agreement will be effective as of the closing of
AmEx's purchase of shares of Series E Preferred Stock under the Purchase
Agreement (the "CLOSING").
2. STANDSTILL PROVISIONS.
2.1 ATRS hereby agrees that prior to February 10, 2000 it will not,
without the written consent of Portable, (i) acquire, or enter into arrangements
or understandings with any third party to acquire, beneficial ownership (as
defined in Rule 13d-3 promulgated under the Securities Exchange Act of 1934 as
amended) of any securities of the Company entitled to vote with respect to the
election of any directors of the Company ("Voting Stock") any securities
convertible into, exchangeable for or exerciseable for any Voting Stock or any
other right to acquire Voting Stock, if the effect of such acquisition would be
that ATRS, together with its majority-owned subsidiaries, would then
beneficially own and/or have the right to acquire more than seventeen percent
(17%) of the Voting Stock of Portable (the "Standstill Percentage"); or (ii)
make, or in any way participate in, any "solicitation" of "proxies" to vote any
Voting Stock (as such terms are defined or used in Regulation 14A under the
Securities Exchange Act of 1934, as such Regulation is currently in effect) of
Portable if Portable is at the time publicly-traded and subject to the proxy
rules.
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2.2 Notwithstanding the restriction set forth in Section 2.1 hereof:
(a) ATRS may acquire Voting Stock without regard to the foregoing
limitation, and such limitation shall be suspended, but not terminated, if and
for as long as (i) a tender or exchange offer is made and is not withdrawn or
terminated by another person or group to purchase or exchange for cash or other
consideration and Voting Stock that, if accepted or if otherwise successful,
would result in such person or group beneficially owning or having the right to
acquire shares of Voting Stock with aggregate Voting Power of more than twenty
percent (20%) of the Total Voting Power of the Company then in effect (not
counting for these purposes any shares of Voting Stock of the Company originally
acquired by such person or group from ATRS or any majority-owned subsidiary of
ATRS), and such offer is not withdrawn or terminated prior to ATRS making an
offer to acquire Voting Stock or acquiring Voting Stock; provided, however, that
the foregoing standstill limitation will be reinstated once any such tender or
exchange offer is withdrawn or terminated, (ii) another person or group
hereafter acquires Voting Stock and aggregate Voting Power of more than ten
percent (10%) of the Total Voting Power of the Company then in effect (not
counting for these purposes any shares of Voting Stock of the Company originally
acquired by such person or group from ATRS or any majority-owned subsidiary of
ATRS), where such person or group files a Schedule 13D (under the rules
promulgated under Section 13(d) under the Securities and Exchange Act of 1934 as
such rules and section are in effect on the date hereof), or other similar or
successor schedule or form, indicating that such person's or group's holdings
exceed ten percent (10%); provided, however, that the foregoing standstill
limitation will be reinstated once the percentage of Total Voting Power
beneficially owned by such other person or group falls below ten percent (10%);
(iii) another person or group hereafter acquires Voting Stock that results in
such person or group being required to file a Schedule 13G, or other similar or
successor schedule or form, indicating that such other person or group
beneficially owns or has the right to acquire Voting Stock with aggregate Voting
Power of more than ten percent (10%) of the Total Voting Power of the Company
(not counting for these purposes any shares of Voting Stock of the Company
originally acquired by such person or group from ATRS or any majority-owned
subsidiary of ATRS); provided, however, that the foregoing standstill limitation
will be reinstated once the percentage of Total Voting Power beneficially owned
by such other person or group falls below ten percent (10%); (iv) another person
or group orally or in writing contacts the Company and advises the Company of
such person's or group's intention to commence a tender or exchange offer or
propose an acquisition that, if so commenced, would result in a suspension
pursuant to clause (i) above (e.g., a "bear hug" offer); provided, however, that
the foregoing standstill limitation will be reinstated if such intention is
withdrawn in writing or other reasonable evidence of such withdrawal is provided
to ATRS; or (v) if it is publicly disclosed or ATRS otherwise learns that the
Company has entered into any letter of intent or agreement with a person or
group that, if consummated, would result in such person or group owning or
having the right to acquire shares of Voting Stock having aggregate Voting Power
of more than 50% of the Voting Power of all shares of Voting Stock then
outstanding. The Company shall notify ATRS in writing of the occurrence of any
event described in clauses (i) through (iv) of the immediately preceding
sentence as soon as practicable following the Company's becoming aware of any
such event, and in any case, shall provide ATRS written notice of any such event
within two (2) business days of the Company's being aware of the occurrence of
any such event.
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(b) ATRS will not be obliged to dispose of any Voting Stock to
the extent that the aggregate percentage of the Total Voting Power of the
Company represented by Voting Stock beneficially owned by ATRS (including any
majority-owned subsidiaries) or which ATRS (including any majority-owned
subsidiaries) has a right to acquire is increased beyond the Standstill
Percentage (i) as a result of a recapitalization of the Company or a repurchase
or exchange of securities by the Company or any other action taken by the
Company or its affiliates; (ii) as the result of acquisitions of Voting Stock
made during the period when ATRS's "standstill" obligations are suspended or
terminated pursuant to Section 2.1(a); (iii) by way of stock dividends or other
distributions or rights or offerings made available to holders of shares of
Voting Stock generally; or (iv) with the consent of a simple majority of the
independent authorized members of the Company's Board of Directors and ATRS is
expressly allowed to request from the Board that this Agreement be suspended or
terminated; or (v) as part of a transaction on behalf of ATRS's Profit Sharing
Retirement Plan, 401(k) Savings Plan, or any successor or additional retirement
plans thereto (collectively, the "Retirement Plans") where the Company's shares
in such Retirement Plans are voted by a trustee for the benefit of ATRS
employees or, for those Retirement Plans where ATRS controls voting, where ATRS
agrees not to vote any shares of such Retirement Plan Voting Stock that would
cause ATRS to exceed the Standstill Percentage.
(c) As used in this Section 2, (i) the term "Voting Power" of any
Voting Stock means the number of votes such Voting Stock is entitled to cast for
directors of the Company at any meeting of shareholders of the Company, and (ii)
the term "Total Voting Power" means the total number of votes which may be cast
in the election of directors of the Company at any meeting of shareholders of
the Company if all Voting Stock was represented and voted to the fullest extent
possible at such meeting, other than votes that may be cast only upon the
happening of a contingency that has not occurred.
3. GENERAL PROVISIONS.
3.1 Notices. Any notice, request or other communication required
or permitted hereunder shall be in writing and shall be deemed to have been duly
given if personally delivered or if deposited in the U.S. mail by registered or
certified mail, return receipt requested, postage prepaid, as follows:
(a) if to Portable, at:
Portable Software Corporation
0000 000xx Xxxxxx XX
Xxxxxxx, XX 00000
Attention: President
Facsimile: 425/702-8828
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with a copy to:
Fenwick & West LLP
Xxx Xxxx Xxxx Xxxxxx, Xxxxx 000
Xxxx Xxxx, XX 00000
Attention: Xxxxxxx Xxxxxxx, Esq.
Facsimile: 650/494-1417
(b) If to ATRS:
American Express Travel Related Services Company, Inc.
American Express Tower
World Financial Center
Xxx Xxxx, XX 00000
Attention: General Counsel
Facsimile: 212/619-7099
with a copy to:
Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP
Old Federal Reserve Bank Building
000 Xxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000-0000
Attention: Xxxxxxx X. Xxxxxxx, Esq.
Facsimile: 415/773-5930
Any party hereto (and such party's permitted assigns) may by notice so given
provide and change its address for future notices hereunder. Notice shall
conclusively be deemed to have been given when personally delivered or when
deposited in the mail in the manner set forth above.
3.2 Entire Agreement. This Agreement, constitutes and contains
the entire agreement and understanding of the parties with respect to the
subject matter hereof and supersedes any and all prior negotiations,
correspondence, agreements, understandings, duties or obligations between the
parties respecting the subject matter hereof.
3.3 Amendment of Rights. Any provision of this Agreement may be
amended and the observance thereof may be waived (either generally or in a
particular instance and either retroactively or prospectively), only with the
written consent of Portable and ATRS (and/or any of their permitted successors
or assigns).
3.4 Governing Law. This Agreement shall be governed by and
construed exclusively in accordance with the internal laws of the State of
Delaware as applied to agreements among Delaware residents entered into and to
be performed entirely within Delaware, excluding that body of law relating to
conflict of laws and choice of law.
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3.5 Severability. If one or more provisions of this Agreement are
held to be unenforceable under applicable law, then such provision(s) shall be
excluded from this Agreement and the balance of this Agreement shall be
interpreted as if such provision(s) were so excluded and shall be enforceable in
accordance with its terms.
3.6 Third Parties. Nothing in this Agreement, express or implied,
is intended to confer upon any person, other than the parties hereto and their
successors and assigns, any rights or remedies under or by reason of this
Agreement.
3.7 Successors And Assigns. The provisions of this Agreement
shall inure to the benefit of, and shall be binding upon, the successors and
permitted assigns of the parties hereto.
3.8 Captions. The captions to sections of this Agreement have
been inserted for identification and reference purposes only and shall not be
used to construe or interpret this Agreement.
3.9 Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
3.10 Costs And Attorneys' Fees. In the event that any action,
suit or other proceeding is instituted concerning or arising out of this
Agreement or any transaction contemplated hereunder, the prevailing party shall
recover all of such party's costs and attorneys' fees incurred in each such
action, suit or other proceeding, including any and all appeals or petitions
therefrom.
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IN WITNESS WHEREOF, the parties hereto have executed this Standstill
Agreement as of the date and year first above written.
AMERICAN EXPRESS TRAVEL PORTABLE SOFTWARE CORPORATION
RELATED SERVICES COMPANY, INC.
By: /s/ XXXX XXXXXXX By: /s/ XXXXXXXX XXXXXX
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Name: Xxxx Xxxxxxx Name: Xxxxxxxx Xxxxxx
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Title: President, American Express Title: Vice President and Chief
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Relationship Services Financial Officer
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[SIGNATURE PAGE TO STANDSTILL AGREEMENT]
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