Exhibit 4.1
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REGISTRATION RIGHTS AGREEMENT
by and among
BOTTOMLINE TECHNOLOGIES (DE), INC.
GENERAL ATLANTIC PARTNERS 74 L.P.,
GAP COINVESTMENT PARTNERS II, L.P.,
GAPSTAR, LLC
and
GAPCO GMBH & CO. KG
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Dated: January 15, 2002
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TABLE OF CONTENTS
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Page
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1. Definitions 1
2. General; Securities Subject to this Agreement .............................. 5
(a) Grant of Rights ............................................................ 5
(b) Registrable Securities ..................................................... 5
3. Demand Registration ........................................................ 5
(a) Request for Demand Registration ............................................ 5
(b) Incidental or "Piggy-Back" Rights with Respect to a Demand Registration .... 6
(c) Effective Demand Registration .............................................. 6
(d) Expenses ................................................................... 7
(e) Underwriting Procedures .................................................... 7
(f) Selection of Underwriters .................................................. 7
4. Incidental or "Piggy-Back" Registration .................................... 7
(a) Request for Incidental Registration ........................................ 8
(b) Expenses ................................................................... 8
5. Restrictions on Public Sale by Designated Holders .......................... 8
6. Registration Procedures .................................................... 9
(a) Obligations of the Company ................................................. 9
(b) Seller Information ......................................................... 12
(c) Notice to Discontinue ...................................................... 12
(d) Registration Expenses ...................................................... 12
7. Indemnification; Contribution ................................................... 13
(a) Indemnification by the Company ............................................. 13
(b) Indemnification by Designated Holders ...................................... 13
(c) Conduct of Indemnification Proceedings ..................................... 14
(d) Contribution ............................................................... 15
8. Rule 144 ................................................................... 15
9. Miscellaneous .............................................................. 15
(a) Recapitalizations, Exchanges, etc .......................................... 16
(b) No Inconsistent Agreements ................................................. 16
(c) Remedies ................................................................... 16
(d) Amendments and Waivers ..................................................... 16
(e) Notices .................................................................... 16
(f) Successors and Assigns; Third Party Beneficiaries .......................... 18
(g) Counterparts ............................................................... 19
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Page
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(h) Headings .................................................. 19
(i) GOVERNING LAW.............................................. 19
(j) Severability............................................... 19
(k) Rules of Construction...................................... 19
(l) Entire Agreement........................................... 19
(m) Further Assurances......................................... 20
(n) Other Agreements........................................... 20
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SCHEDULES
I Selling Stockholders
9(b) Inconsistent Agreements
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REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated January 15, 2002 (this
"Agreement"), among Bottomline Technologies (de), Inc., a Delaware corporation
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(the "Company"), General Atlantic Partners 74, L.P., a Delaware limited
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partnership ("GAP LP"), GAP Coinvestment Partners II, L.P., a Delaware limited
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partnership ("GAP Coinvestment"), GapStar, LLC, a Delaware limited liability
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company ("GapStar"), and GAPCO GmbH & Co. KG, a German limited partnership
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("GmbH Coinvestment" and together with GAP LP, GAP Coinvestment and GapStar, the
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"Purchasers").
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WHEREAS, pursuant to the Stock Purchase Agreement, dated January 8,
2002 (the "Stock Purchase Agreement"), among the Company, GAP LP, GAP
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Coinvestment, GapStar, GmbH Coinvestment and the Stockholders listed on Schedule
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I (the "Selling Stockholders") thereto, (i) the Company has agreed to issue and
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sell to the Purchasers an aggregate of 2,100,000 shares of Common Stock, par
value $0.001 per share, of the Company (the "Common Stock") and (ii) the Selling
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Stockholders have agreed to sell to the Purchasers an aggregate of 600,000
shares of Common Stock; and
WHEREAS, in order to induce each of the Purchasers to purchase its
shares of Common Stock, the Company has agreed to grant registration rights with
respect to the Registrable Securities (as hereinafter defined) as set forth in
this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth herein and for good and valuable consideration, the receipt
and adequacy of which are hereby acknowledged, the parties hereto agree as
follows:
1. Definitions. As used in this Agreement, and unless the context
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requires a different meaning, the following terms have the meanings indicated:
"Affiliate" shall mean any Person who is an "affiliate" as defined in
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Rule 12b-2 of the General Rules and Regulations under the Exchange Act.
"Agreement" means this Agreement as the same may be amended,
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supplemented or modified in accordance with the terms hereof.
"Approved Underwriter" has the meaning set forth in Section 3(f) of
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this Agreement.
"Board of Directors" means the Board of Directors of the Company.
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"Business Day" means any day other than a Saturday, Sunday or other
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day on which commercial banks in the State of New York are authorized or
required by law or executive order to close.
"Closing Price" means, with respect to the Registrable Securities, as
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of the date of determination, (a) if the Registrable Securities are listed on a
national securities
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exchange, the closing price per share of a Registrable Security on such date
published in The Wall Street Journal (National Edition) or, if no such closing
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price on such date is published in The Wall Street Journal (National Edition),
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the average of the closing bid and asked prices on such date, as officially
reported on the principal national securities exchange on which the Registrable
Securities are then listed or admitted to trading; or (b) if the Registrable
Securities are not then listed or admitted to trading on any national securities
exchange but are designated as national market system securities by the NASD,
the last trading price per share of a Registrable Security on such date; or (c)
if there shall have been no trading on such date or if the Registrable
Securities are not designated as national market system securities by the NASD,
the average of the reported closing bid and asked prices of the Registrable
Securities on such date as shown by The Nasdaq Stock Market, Inc. (or its
successor) and reported by any member firm of The New York Stock Exchange, Inc.
selected by the Company; or (d) if none of (a), (b) or (c) is applicable, a
market price per share determined in good faith by the Board of Directors or, if
such determination is not satisfactory to the Designated Holder for whom such
determination is being made, by a nationally recognized investment banking firm
selected by the Company and such Designated Holder, the expenses for which shall
be borne equally by the Company and such Designated Holder. If trading is
conducted on a continuous basis on any exchange, then the closing price shall be
at 4:00 P.M. New York City time.
"Commission" means the Securities and Exchange Commission or any
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similar agency then having jurisdiction to enforce the Securities Act.
"Common Stock" means the Common Stock, par value $0.001 per
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share, of the Company or any other capital stock of the Company into which such
stock is reclassified or reconstituted and any other common stock of the
Company.
"Company" has the meaning set forth in the preamble to this
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Agreement.
"Company Underwriter" has the meaning set forth in Section 4(a)
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of this Agreement.
"Demand Registration" has the meaning set forth in Section 3(a)
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of this Agreement.
"Designated Holder" means each of the General Atlantic
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Stockholders and any transferee of any of them to whom Registrable Securities
have been transferred in accordance with Section 9(f) of this Agreement, other
than a transferee to whom Registrable Securities have been transferred pursuant
to a Registration Statement under the Securities Act or Rule 144 or Regulation S
under the Securities Act (or any successor rule thereto).
"Exchange Act" means the Securities Exchange Act of 1934, as
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amended, and the rules and regulations of the Commission thereunder.
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"GAP Coinvestment" has the meaning set forth in the preamble to
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this Agreement.
"GAP LLC" means General Atlantic Partners, LLC, a Delaware
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limited liability company and the general partner of GAP LP and the managing
member of GapStar, and any successor to such entity.
"GAP LP" has the meaning set forth in the preamble to this
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Agreement.
"GapStar" has the meaning set forth in the preamble to this
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Agreement.
"General Atlantic Designee" has the meaning set forth in the
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Stock Purchase Agreement.
"General Atlantic Stockholders" means GAP LP, GAP Coinvestment,
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GapStar, GmbH Coinvestment, any Subsequent General Atlantic Purchaser and any
Affiliate thereof to whom Registrable Securities are transferred in accordance
with Section 9(f) of this Agreement.
"GmbH Coinvestment" has the meaning set forth in the preamble to
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this Agreement.
"GmbH Management" means GAPCO Management GmbH, a German company
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with limited liability and the general partner of GmbH Coinvestment, and any
successor to such entity.
"Holders' Counsel" has the meaning set forth in Section 6(a)(i)
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of this Agreement.
"Incidental Registration" has the meaning set forth in Section
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4(a) of this Agreement.
"Indemnified Party" has the meaning set forth in Section 7(c) of
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this Agreement.
"Indemnifying Party" has the meaning set forth in Section 7(c) of
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this Agreement.
"Initiating Holders" has the meaning set forth in Section 3(a) of
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this Agreement.
"Inspector" has the meaning set forth in Section 6(a)(vii) of
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this Agreement.
"Liability" has the meaning set forth in Section 7(a) of this
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Agreement.
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"Market Price" means, on any date of determination, the average
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of the daily Closing Price of the Registrable Securities for the immediately
preceding thirty (30) days on which the national securities exchanges are open
for trading.
"NASD" means the National Association of Securities Dealers, Inc.
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"Person" means any individual, firm, corporation, partnership,
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limited liability company, trust, incorporated or unincorporated association,
joint venture, joint stock company, limited liability company, government (or an
agency or political subdivision thereof) or other entity of any kind, and shall
include any successor (by merger or otherwise) of such entity.
"Records" has the meaning set forth in Section 6(a)(vii) of this
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Agreement.
"Registrable Securities" means each of the following: (a) any and
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all Purchased Shares or New Securities (each as defined in the Stock Purchase
Agreement) acquired by the Designated Holders pursuant to the Stock Purchase
Agreement, (b) any other shares of Common Stock acquired or owned by any of the
Designated Holders after the date hereof if such Designated Holder is an
Affiliate of the Company and (c) any shares of Common Stock issued or issuable
to any of the Designated Holders with respect to the foregoing by way of stock
dividend, stock split, recapitalization or other similar event thereof.
"Registration Expenses" has the meaning set forth in Section 6(d)
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of this Agreement.
"Registration Statement" means a Registration Statement filed
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pursuant to the Securities Act.
"Securities Act" means the Securities Act of 1933, as amended,
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and the rules and regulations of the Commission promulgated thereunder.
"Selling Stockholders" has the meaning set forth in the recitals
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to this Agreement.
"Stock Equivalent" means any security or obligation which is
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convertible, exchangeable or exercisable into or for shares of Common Stock or
capital stock of the Company, and any option, warrant or other subscription or
purchase right with respect to any of the foregoing.
"Stock Purchase Agreement" has the meaning set forth in the
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recitals to this Agreement.
"Subsequent General Atlantic Purchaser" means any Affiliate of
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GAP LLC that, after the date hereof, acquires shares of Common Stock, other
shares of capital stock of the Company, or any Stock Equivalent.
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"Valid Business Reason" has the meaning set forth in Section 3(a)
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of this Agreement.
2. General; Securities Subject to this Agreement.
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(a) Grant of Rights. The Company hereby grants registration
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rights to the Designated Holders upon the terms and conditions set forth in this
Agreement.
(b) Registrable Securities. For the purposes of this Agreement,
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Registrable Securities will cease to be Registrable Securities upon the earlier
of (i) the date a Registration Statement covering such Registrable Securities
has been declared effective under the Securities Act by the Commission and such
Registrable Securities have been disposed of pursuant to such effective
Registration Statement, (ii) the date the entire amount of the Registrable
Securities owned by a Designated Holder may be sold in a single sale, in the
opinion of counsel satisfactory to the Company and such Designated Holder, each
in their reasonable judgment, without any limitation as to volume pursuant to
Rule 144 (or any successor provision then in effect) under the Securities Act or
(iii) the date the Registrable Securities are proposed to be sold or distributed
by a Person not entitled to the registration rights granted by this Agreement.
3. Demand Registration.
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(a) Request for Demand Registration. At any time after January
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15, 2003, the General Atlantic Stockholders, acting through GAP LLC or its
written designee, the identity of which shall be certified to the Company in
writing by the General Atlantic Stockholders (the "Initiating Holders"), may
make a written request to the Company to register, and the Company shall
register, under the Securities Act (other than pursuant to a Registration
Statement on Form S-4 or S-8 or any successor thereto) (a "Demand
Registration"), the number of Registrable Securities held by such Initiating
Holders stated in such request; provided, however, that the Company shall not be
obligated to effect more than one such Demand Registration for the Initiating
Holders unless less than seventy-five percent (75%) of the requested securities
were included in the previous Demand Registration, in which case the Initiating
Holders shall have the right to require the Company to effect one additional
Demand Registration. Notwithstanding the foregoing, the Company shall not be
required to effect more than two Demand Registrations. If the Board of
Directors, in its good faith judgment, determines that any registration of
Registrable Securities should not be made or continued because it would
materially interfere with any material financing, acquisition, corporate
reorganization or merger or other material transaction involving the Company (a
"Valid Business Reason"), the Company may (x) postpone filing a Registration
Statement relating to a Demand Registration until such Valid Business Reason no
longer exists, but in no event for more than ninety (90) days, and (y) in case a
Registration Statement has been filed relating to a Demand Registration, the
Company, upon the approval of a majority of the Board of Directors, such
majority to include the General Atlantic Designee, may cause such Registration
Statement to be withdrawn and its effectiveness terminated or may postpone
amending or supplementing such Registration Statement. The Company shall give
written notice of its determination to postpone or withdraw a Registration
Statement
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and of the fact that the Valid Business Reason for such postponement or
withdrawal no longer exists, in each case, promptly after the occurrence
thereof. Notwithstanding anything to the contrary contained herein, the Company
may not postpone or withdraw a filing under this Section 3(a) more than once in
any twelve (12) month period. Each request for a Demand Registration by the
Initiating Holders shall state the amount of the Registrable Securities proposed
to be sold and the intended method of disposition thereof.
(b) Incidental or "Piggy-Back" Rights with Respect to a Demand
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Registration. Each of the Designated Holders (other than Initiating Holders
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which have requested a registration under Section 3(a)) may offer its or his
Registrable Securities under any Demand Registration pursuant to this Section
3(b). Within five (5) days after the receipt of a request for a Demand
Registration from an Initiating Holder, the Company shall (i) give written
notice thereof to all of the Designated Holders (other than Initiating Holders
which have requested a registration under Section 3(a)) and (ii) subject to
Section 3(e), include in such registration all of the Registrable Securities
held by such Designated Holders from whom the Company has received a written
request for inclusion therein within ten (10) days after the Company gives
notice to such Designated Holders, such written notice referred to in clause (i)
above. Each such request by such Designated Holders shall specify the number of
Registrable Securities proposed to be registered. The failure of any Designated
Holder to respond within such 10-day period referred to in clause (ii) above
shall be deemed to be a waiver of such Designated Holder's rights under this
Section 3 with respect to such Demand Registration. Any Designated Holder may
waive its rights under this Section 3 prior to the expiration of such 10-day
period by giving written notice to the Company, with a copy to the Initiating
Holders. If a Designated Holder sends the Company a written request for
inclusion of part or all of such Designated Holder's Registrable Securities in a
registration, such Designated Holder shall not be entitled to withdraw or revoke
such request without the prior written consent of the Company in its sole
discretion unless, as a result of facts or circumstances arising after the date
on which such request was made relating to the Company or to market conditions,
such Designated Holder reasonably determines that participation in such
registration would have a material adverse effect on such Designated Holder.
(c) Effective Demand Registration. The Company shall use its
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reasonable best efforts to cause any such Demand Registration to become and
remain effective not later than sixty (60) days after it receives a request
under Section 3(a) hereof. A registration shall not constitute a Demand
Registration until it has become effective and remains continuously effective
for the lesser of (i) the period during which all Registrable Securities
registered in the Demand Registration are sold and (ii) 120 days; provided,
however, that a registration shall not constitute a Demand Registration if (x)
after such Demand Registration has become effective, such registration or the
related offer, sale or distribution of Registrable Securities thereunder is
interfered with by any stop order, injunction or other order or requirement of
the Commission or other governmental agency or court for any reason not
attributable to the Initiating Holders and such interference is not thereafter
eliminated or (y) the conditions specified in the underwriting agreement, if
any, entered into in connection with such Demand Registration are not satisfied
or waived, other than by reason of a failure by the Initiating Holder.
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(d) Expenses. The Company shall pay all Registration Expenses in
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connection with a Demand Registration, whether or not such Demand Registration
becomes effective; provided, however, that if a Demand Registration is withdrawn
at the request of the Initiating Holders (other than as a result of information
concerning the business or financial condition of the Company which is made
known to the Initiating Holders after the date on which such Demand Registration
was requested) and if the Initiating Holders elect not to have such registration
count as a Demand Registration, the Initiating Holders and the other Designated
Holders who requested Registrable Securities to be registered on such
registration statement shall pay the Registration Expenses of such registration
pro rata in accordance with the number of their Registrable Securities included
in such registration.
(e) Underwriting Procedures. If the Company or the Initiating
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Holders holding a majority of the Registrable Securities held by all of the
Initiating Holders so elect, the Company shall use its reasonable best efforts
to cause such Demand Registration to be in the form of a firm commitment
underwritten offering and the managing underwriter or underwriters selected for
such offering shall be the Approved Underwriter selected in accordance with
Section 3(f). In connection with any Demand Registration under this Section 3
involving an underwritten offering, none of the Registrable Securities held by
any Designated Holder making a request for inclusion of such Registrable
Securities pursuant to Section 3(b) hereof shall be included in such
underwritten offering unless such Designated Holder accepts the terms of the
offering as agreed upon by the Company, the Initiating Holders and the Approved
Underwriter, and then only in such quantity as will not, in the opinion of the
Approved Underwriter, jeopardize the success of such offering by the Initiating
Holders. If the Approved Underwriter advises the Company that the aggregate
amount of such Registrable Securities requested to be included in such offering
is sufficiently large to have a material adverse effect on the success of such
offering, then the Company shall include in such registration only the aggregate
amount of Registrable Securities that the Approved Underwriter believes may be
sold without any such material adverse effect and shall reduce the amount of
Registrable Securities to be included in such registration, first as to the
Company, second as to the Designated Holders (who are not Initiating Holders and
who requested to participate in such registration pursuant to Section 3(b)
hereof) as a group, if any, and third as to the Initiating Holders as a group,
pro rata within each group based on the number of Registrable Securities owned
by each such Designated Holder or Initiating Holder, as the case may be.
(f) Selection of Underwriters. If any Demand Registration of
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Registrable Securities is in the form of an underwritten offering, the Company
shall select and obtain an investment banking firm of national reputation to act
as the managing underwriter of the offering (the "Approved Underwriter");
provided, however, that the Approved Underwriter shall, in any case, also be
approved by the Initiating Holders, such approval not to be unreasonably
withheld.
4. Incidental or "Piggy-Back" Registration.
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(a) Request for Incidental Registration. At any time after the
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date hereof, if the Company proposes to file a Registration Statement under the
Securities Act with respect to an offering by the Company for its own account
(other than a Registration Statement on Form S-4 or S-8 or any successor
thereto) or for the account of any stockholder of the Company other than the
Designated Holders, then the Company shall give written notice of such proposed
filing to each of the Designated Holders at least twenty (20) days before the
anticipated filing date, and such notice shall describe the proposed
registration and distribution and offer such Designated Holders the opportunity
to register the number of Registrable Securities as each such Designated Holder
may request (an "Incidental Registration"). The Company shall use its reasonable
best efforts (within twenty (20) days of the notice provided for in the
preceding sentence) to cause the managing underwriter or underwriters in the
case of a proposed underwritten offering (the "Company Underwriter") to permit
each of the Designated Holders who have requested in writing to participate in
the Incidental Registration to include its or his Registrable Securities in such
offering on the same terms and conditions as the securities of the Company or
the account of such other stockholder, as the case may be, included therein. In
connection with any Incidental Registration under this Section 4(a) involving an
underwritten offering, the Company shall not be required to include any
Registrable Securities in such underwritten offering unless the Designated
Holders thereof accept the terms of the underwritten offering as agreed upon
between the Company, such other stockholders, if any, and the Company
Underwriter, and then only in such quantity as the Company Underwriter believes
will not jeopardize the success of the offering by the Company. If the Company
Underwriter determines that the registration of all or part of the Registrable
Securities which the Designated Holders have requested to be included would
materially adversely affect the success of such offering, then the Company shall
be required to include in such Incidental Registration, to the extent of the
amount that the Company Underwriter believes may be sold without causing such
adverse effect, first, all of the securities to be offered for the account of
the Company; second, the Registrable Securities to be offered for the account of
the Designated Holders pursuant to this Section 4, pro rata based on the number
of Registrable Securities owned by each such Designated Holder; and third, any
other securities requested to be included in such offering.
(b) Expenses. The Company shall bear all Registration Expenses in
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connection with any Incidental Registration pursuant to this Section 4, whether
or not such Incidental Registration becomes effective.
5. Restrictions on Public Sale by Designated Holders. To the
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extent (i) requested (A) by the Company or the Initiating Holders, as the case
may be, in the case of a non-underwritten public offering and (B) by the
Approved Underwriter or the Company Underwriter, as the case may be, in the case
of an underwritten public offering and (ii) all of the Company's officers,
directors and holders in excess of one percent (1%) of its outstanding capital
stock execute agreements identical to those referred to in this Section 5(a),
each Designated Holder agrees (x) not to effect any public sale or distribution
of any Registrable Securities or of any securities convertible into or
exchangeable or exercisable for such Registrable Securities, including a sale
pursuant to Rule 144 under the Securities Act, or offer to sell, contract to
sell (including without
9
limitation any short sale), grant any option to purchase or enter into any
hedging or similar transaction with the same economic effect as a sale any
Registrable Securities and (y) not to make any request for a Demand Registration
under this Agreement, during the ninety (90) day period or such shorter period,
if any, mutually agreed upon by such Designated Holder and the requesting party
beginning on the effective date of the Registration Statement (except as part of
such registration) for such public offering. No Designated Holder of Registrable
Securities subject to this Section 5(a) shall be released from any obligation
under any agreement, arrangement or understanding entered into pursuant to this
Section 5(a) unless all other Designated Holders of Registrable Securities
subject to the same obligation are also released.
6. Registration Procedures.
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(a) Obligations of the Company. Whenever registration of
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Registrable Securities has been requested pursuant to Section 3 or Section 4 of
this Agreement, the Company shall use its reasonable best efforts to effect the
registration and sale of such Registrable Securities in accordance with the
intended method of distribution thereof as quickly as practicable, and in
connection with any such request, the Company shall, as expeditiously as
possible:
(i) prepare and file with the Commission a
Registration Statement on any form for which the Company then qualifies or which
counsel for the Company shall deem appropriate and which form shall be available
for the sale of such Registrable Securities in accordance with the intended
method of distribution thereof, and cause such Registration Statement to become
effective; provided, however, that (x) before filing a Registration Statement or
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prospectus or any amendments or supplements thereto, the Company shall provide
counsel selected by the Designated Holders holding a majority of the Registrable
Securities being registered in such registration ("Holders Counsel") and any
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other Inspector with an adequate and appropriate opportunity to review and
comment on such Registration Statement and each prospectus included therein (and
each amendment or supplement thereto) to be filed with the Commission, subject
to such documents being under the Company's control, and (y) the Company shall
notify the Holders Counsel and each seller of Registrable Securities of any stop
order issued or threatened by the Commission and take all action required to
prevent the entry of such stop order or to remove it if entered;
(ii) prepare and file with the Commission
such amendments and supplements to such Registration Statement and the
prospectus used in connection therewith as may be necessary to keep such
Registration Statement effective for the lesser of (x) 120 days and (y) such
shorter period which will terminate when all Registrable Securities covered by
such Registration Statement have been sold, and comply with the provisions of
the Securities Act with respect to the disposition of all securities covered by
such Registration Statement during such period in accordance with the intended
methods of disposition by the sellers thereof set forth in such Registration
Statement;
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(iii) furnish to each seller of Registrable
Securities such number of copies of such Registration Statement, each amendment
and supplement thereto (in each case including all exhibits thereto), and the
prospectus included in such Registration Statement (including each preliminary
prospectus) and any prospectus filed under Rule 424 under the Securities Act as
each such seller may reasonably request in order to facilitate the disposition
of the Registrable Securities owned by such seller;
(iv) register or qualify such Registrable
Securities under such other securities or "blue sky" laws of such jurisdictions
as any seller of Registrable Securities may request, and to continue such
qualification in effect in such jurisdiction for as long as permissible pursuant
to the laws of such jurisdiction, or for as long as any such seller requests or
until all of such Registrable Securities are sold, whichever is shortest, and do
any and all other acts and things which may be reasonably necessary or advisable
to enable any such seller to consummate the disposition in such jurisdictions of
the Registrable Securities owned by such seller; provided, however, that the
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Company shall not be required to (x) qualify generally to do business in any
jurisdiction where it would not otherwise be required to qualify but for this
Section 6(a)(iv), (y) subject itself to taxation in any such jurisdiction or (z)
consent to general service of process in any such jurisdiction;
(v) notify each seller of Registrable
Securities at any time when a prospectus relating thereto is required to be
delivered under the Securities Act, upon discovery that, or upon the happening
of any event as a result of which, the prospectus included in such Registration
Statement contains an untrue statement of a material fact or omits to state any
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading and the Company shall promptly prepare a supplement or amendment to
such prospectus and furnish to each seller of Registrable Securities a
reasonable number of copies of such supplement to or an amendment of such
prospectus as may be necessary so that, after delivery to the purchasers of such
Registrable Securities, such prospectus shall not contain an 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 light of the circumstances under
which they were made, not misleading;
(vi) enter into and perform customary
agreements (including an underwriting agreement in customary form with the
Approved Underwriter or Company Underwriter, if any, selected as provided in
Section 3 or Section 4, as the case may be) and take such other actions as are
prudent and reasonably required in order to expedite or facilitate the
disposition of such Registrable Securities, including causing its officers to
participate in "road shows" and other information meetings organized by the
Approved Underwriter or Company Underwriter;
(vii) make available at reasonable times for
inspection by any seller of Registrable Securities, any managing underwriter
participating in any disposition of such Registrable Securities pursuant to a
Registration Statement, Holders' Counsel and any attorney, accountant or other
agent retained by any such seller or any managing underwriter (each, an
"Inspector" and collectively, the "Inspectors"), all
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11
financial and other records, pertinent corporate documents and properties of the
Company and its subsidiaries (collectively, the "Records") as shall be
-------
reasonably necessary to enable them to exercise their due diligence
responsibility, and cause the Company's and its subsidiaries' officers,
directors and employees, and the independent public accountants of the Company,
to supply all information reasonably requested by any such Inspector in
connection with such Registration Statement. Records that the Company
determines, in good faith, to be confidential and which it notifies the
Inspectors are confidential shall not be disclosed by the Inspectors (and the
Inspectors shall confirm their agreement in writing in advance to the Company if
the Company shall so request) unless (x) the disclosure of such Records is
necessary, in the Company's judgment, to avoid or correct a misstatement or
omission in the Registration Statement, (y) the release of such Records is
ordered pursuant to a subpoena or other order from a court of competent
jurisdiction after exhaustion of all appeals therefrom or (z) the information in
such Records was known to the Inspectors on a non-confidential basis prior to
its disclosure by the Company or has been made generally available to the
public. Each seller of Registrable Securities agrees that it shall, upon
learning that disclosure of such Records is sought in a court of competent
jurisdiction, give notice to the Company and allow the Company, at the Company's
expense, to undertake appropriate action to prevent disclosure of the Records
deemed confidential;
(viii) if such sale is pursuant to an
underwritten offering, obtain a "cold comfort" letters dated the effective date
of the Registration Statement and the date of the closing under the underwriting
agreement from the Company's independent public accountants in customary form
and covering such matters of the type customarily covered by "cold comfort"
letters as Holders' Counsel or the managing underwriter reasonably requests;
(ix) furnish, at the request of any seller of
Registrable Securities on the date such securities are delivered to the
underwriters for sale pursuant to such registration or, if such securities are
not being sold through underwriters, on the date the Registration Statement with
respect to such securities becomes effective, an opinion, dated such date, of
counsel representing the Company for the purposes of such registration,
addressed to the underwriters, if any, and to the seller making such request,
covering such legal matters with respect to the registration in respect of which
such opinion is being given as the underwriters, if any, and such seller may
reasonably request and are customarily included in such opinions;
(x) comply with all applicable rules and
regulations of the Commission, and make available to its security holders, as
soon as reasonably practicable but no later than fifteen (15) months after the
effective date of the Registration Statement, an earnings statement covering a
period of twelve (12) months beginning after the effective date of the
Registration Statement, in a manner which satisfies the provisions of Section
11(a) of the Securities Act and Rule 158 thereunder;
(xi) cause all such Registrable Securities to
be listed on each securities exchange on which similar securities issued by the
Company are then listed, provided that the applicable listing requirements are
--------
satisfied;
12
(xii) keep Holders' Counsel advised in writing
as to the initiation and progress of any registration under Section 3 or Section
4 hereunder;
(xiii) cooperate with each seller of
Registrable Securities and each underwriter participating in the disposition of
such Registrable Securities and their respective counsel in connection with any
filings required to be made with the NASD; and
(xiv) take all other steps reasonably
necessary to effect the registration of the Registrable Securities contemplated
hereby.
(b) Seller Information. The Company may require each seller of
------------------
Registrable Securities as to which any registration is being effected to
furnish, and such seller shall furnish, to the Company such information
regarding the distribution of such securities as the Company may from time to
time reasonably request in writing.
(c) Notice to Discontinue. Each Designated Holder agrees that,
---------------------
upon receipt of any notice from the Company of the happening of any event of the
kind described in Section 6(a)(v), such Designated Holder shall forthwith
discontinue disposition of Registrable Securities pursuant to the Registration
Statement covering such Registrable Securities until such Designated Holder's
receipt of the copies of the supplemented or amended prospectus contemplated by
Section 6(a)(v) and, if so directed by the Company, such Designated Holder shall
deliver to the Company (at the Company's expense) all copies, other than
permanent file copies then in such Designated Holder's possession, of the
prospectus covering such Registrable Securities which is current at the time of
receipt of such notice. If the Company shall give any such notice, the Company
shall extend the period during which such Registration Statement shall be
maintained effective pursuant to this Agreement (including, without limitation,
the period referred to in Section 6(a)(ii)) by the number of days during the
period from and including the date of the giving of such notice pursuant to
Section 6(a)(v) to and including the date when sellers of such Registrable
Securities under such Registration Statement shall have received the copies of
the supplemented or amended prospectus contemplated by and meeting the
requirements of Section 6(a)(v).
(d) Registration Expenses. The Company shall, subject to the
---------------------
proviso in Section 3(d), pay all expenses arising from or incident to its
performance of, or compliance with, this Agreement, in connection with
Registration Statements filed pursuant to the terms of this Agreement,
including, without limitation, (i) Commission, stock exchange and NASD
registration and filing fees, (ii) all fees and expenses incurred in complying
with securities or "blue sky" laws (including reasonable fees, charges and
disbursements of counsel to any underwriter incurred in connection with "blue
sky" qualifications of the Registrable Securities as may be set forth in any
underwriting agreement), (iii) all printing, messenger and delivery expenses,
(iv) the fees, charges and expenses of counsel to the Company and of its
independent public accountants and any other accounting fees, charges and
expenses incurred by the Company (including, without limitation, any expenses
arising from any "cold comfort" letters or any special audits incident to or
required by any registration or qualification) and any reasonable
13
legal fees and expenses incurred of one outside counsel for the General Atlantic
Stockholders in connection with any Demand Registration, and (v) any liability
insurance or other premiums for insurance obtained by the Company in connection
with any Demand Registration, or Incidental Registration pursuant to the terms
of this Agreement, regardless of whether such Registration Statement is declared
effective. All of the expenses described in the preceding sentence of this
Section 6(d) are referred to herein as "Registration Expenses." The Designated
Holders of Registrable Securities sold pursuant to a Registration Statement
shall bear the expense of any broker's commission or underwriter s discount or
commission relating to registration and sale of such Designated Holders'
Registrable Securities and, subject to clause (iv) above, shall bear the fees
and expenses of their own counsel.
7. Indemnification; Contribution.
-----------------------------
(a) Indemnification by the Company. The Company agrees to
------------------------------
indemnify and hold harmless each Designated Holder, its partners, directors,
officers, affiliates and each Person who controls (within the meaning of Section
15 of the Securities Act) such Designated Holder from and against any and all
losses, claims, damages, liabilities and expenses (including reasonable costs of
investigation) (each, a "Liability" and collectively, "Liabilities"), arising
out of or based upon any untrue, or allegedly untrue, statement of a material
fact contained in any Registration Statement, prospectus or preliminary
prospectus or notification or offering circular (as amended or supplemented if
the Company shall have furnished any amendments or supplements thereto) or
arising out of or based upon any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading under the circumstances such statements were made, except
insofar as such Liability arises out of or is based upon any untrue statement or
alleged untrue statement or omission or alleged omission contained in such
Registration Statement, preliminary prospectus or final prospectus in reliance
and in conformity with information concerning such Designated Holder furnished
in writing to the Company by such Designated Holder expressly for use therein,
including, without limitation, the information furnished to the Company pursuant
to Section 7(b). The Company shall also provide customary indemnities to any
underwriters of the Registrable Securities, their officers, directors and
employees and each Person who controls such underwriters (within the meaning of
Section 15 of the Securities Act) to the same extent as provided above with
respect to the indemnification of the Designated Holders of Registrable
Securities.
(b) Indemnification by Designated Holders. In connection with
-------------------------------------
any Registration Statement in which a Designated Holder is participating
pursuant to Section 3 or Section 4 hereof, each such Designated Holder shall
promptly furnish to the Company in writing such information with respect to such
Designated Holder as the Company may reasonably request or as may be required by
law for use in connection with any such Registration Statement or prospectus and
all information required to be disclosed in order to make the information
previously furnished to the Company by such Designated Holder not materially
misleading or necessary to cause such Registration Statement not to omit a
material fact with respect to such Designated Holder necessary in order to make
the statements therein not misleading. Each Designated Holder agrees to
14
indemnify and hold harmless the Company, any underwriter retained by the Company
and each Person who controls the Company or such underwriter (within the meaning
of Section 15 of the Securities Act) to the same extent as the foregoing
indemnity from the Company to the Designated Holders, but only if such statement
or alleged statement or omission or alleged omission was made in reliance upon
and in conformity with information with respect to such Designated Holder
furnished in writing to the Company by such Designated Holder expressly for use
in such Registration Statement or prospectus, including, without limitation, the
information furnished to the Company pursuant to this Section 7(b); provided,
however, that the total amount to be indemnified by such Designated Holder
pursuant to this Section 7(b) shall be limited to the net proceeds (after
deducting the underwriters' discounts and commissions) received by such
Designated Holder in the offering to which the Registration Statement or
prospectus relates.
(c) Conduct of Indemnification Proceedings. Any Person entitled
--------------------------------------
to indemnification hereunder (the "Indemnified Party") agrees to give prompt
written notice to the indemnifying party (the "Indemnifying Party") after the
receipt by the Indemnified Party of any written notice of the commencement of
any action, suit, proceeding or investigation or threat thereof made in writing
for which the Indemnified Party intends to claim indemnification or contribution
pursuant to this Agreement; provided, however, that the failure so to notify the
Indemnifying Party shall not relieve the Indemnifying Party of any Liability
that it may have to the Indemnified Party hereunder (except to the extent that
the Indemnifying Party is materially prejudiced or otherwise forfeits
substantive rights or defenses by reason of such failure). If notice of
commencement of any such action is given to the Indemnifying Party as above
provided, the Indemnifying Party shall be entitled to participate in and, to the
extent it may wish, jointly with any other Indemnifying Party similarly
notified, to assume the defense of such action at its own expense, with counsel
chosen by it and reasonably satisfactory to such Indemnified Party. The
Indemnified Party shall have the right to employ separate counsel in any such
action and participate in the defense thereof, but the fees and expenses of such
counsel shall be paid by the Indemnified Party unless (i) the Indemnifying Party
agrees to pay the same, (ii) the Indemnifying Party fails to assume the defense
of such action with counsel reasonably satisfactory to the Indemnified Party or
(iii) the named parties to any such action (including any impleaded parties)
include both the Indemnifying Party and the Indemnified Party and such parties
have been advised by such counsel that either (x) representation of such
Indemnified Party and the Indemnifying Party by the same counsel would be
inappropriate under applicable standards of professional conduct or (y) there
may be one or more legal defenses available to the Indemnified Party which are
different from or additional to those available to the Indemnifying Party. In
any of such cases, the Indemnifying Party shall not have the right to assume the
defense of such action on behalf of such Indemnified Party, it being understood,
however, that the Indemnifying Party shall not be liable for the fees and
expenses of more than one separate firm of attorneys (in addition to any local
counsel) for all Indemnified Parties. No Indemnifying Party shall be liable for
any settlement entered into without its written consent, which consent shall not
be unreasonably withheld. No Indemnifying Party shall, without the consent of
such Indemnified Party, effect any settlement of any pending or threatened
proceeding in respect of which such Indemnified Party is a party and
15
indemnity has been sought hereunder by such Indemnified Party, unless such
settlement includes an unconditional release of such Indemnified Party from all
liability for claims that are the subject matter of such proceeding.
(d) Contribution. If the indemnification provided for in this
------------
Section 8 from the Indemnifying Party is due but unavailable to an Indemnified
Party hereunder in respect of any Liabilities referred to herein, then the
Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall
contribute to the amount paid or payable by such Indemnified Party as a result
of such Liabilities in such proportion as is appropriate to reflect the relative
fault of the Indemnifying Party and Indemnified Party in connection with the
actions which resulted in such Liabilities, as well as any other relevant
equitable considerations. The relative faults of such Indemnifying Party and
Indemnified Party shall be determined by reference to, among other things,
whether any action in question, including any untrue or alleged untrue statement
of a material fact or omission or alleged omission to state a material fact, has
been made by, or relates to information supplied by, such Indemnifying Party or
Indemnified Party, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such action. The amount paid
or payable by a party as a result of the Liabilities referred to above shall be
deemed to include, subject to the limitations set forth in Sections 7(a), 7(b)
and 7(c), any legal or other fees, charges or expenses reasonably incurred by
such party in connection with any investigation or proceeding; provided that the
total amount to be contributed by such Designated Holder shall be limited to the
net proceeds (after deducting the underwriters' discounts and commissions)
received by such Designated Holder in the offering.
The parties hereto agree that it would not be just and equitable
if contribution pursuant to this Section 7(d) were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to in the immediately preceding paragraph.
No Person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any Person
who was not guilty of such fraudulent misrepresentation.
8. Rule 144. The Company covenants that it shall (a) file any
--------
reports required to be filed by it under the Exchange Act and (b) take such
further action as each Designated Holder may reasonably request (including
providing any information necessary to comply with Rule 144 under the Securities
Act), all to the extent required from time to time to enable such Designated
Holder to sell Registrable Securities without registration under the Securities
Act within the limitation of the exemptions provided by (i) Rule 144 under the
Securities Act, as such rule may be amended from time to time, or Regulation S
under the Securities Act or (ii) any similar rules or regulations hereafter
adopted by the Commission. The Company shall, upon the request of any Designated
Holder, deliver to such Designated Holder a written statement as to whether it
has complied with such requirements.
9. Miscellaneous.
-------------
16
(a) Recapitalizations, Exchanges, etc. The Company shall cause
---------------------------------
any successor or assign (whether by merger, consolidation, sale of assets or
otherwise) to enter into a new registration rights agreement with the Designated
Holders on terms substantially the same as this Agreement as a condition of any
such transaction.
(b) No Inconsistent Agreements. Except as set forth on Schedule
--------------------------
9(b), the Company represents and warrants that it has not granted to any Person
the right to now or in the future request or require the Company to register any
securities issued by the Company, other than the rights granted to the
Designated Holders herein. The Company shall not enter into any agreement with
respect to its securities that is inconsistent with the rights granted to the
Designated Holders in this Agreement or grant any additional registration rights
to any Person or with respect to any securities which are not Registrable
Securities which are prior in right to or inconsistent with the rights granted
in this Agreement, except that the Company may grant the registration rights
held by the General Atlantic Stockholders to any Subsequent General Atlantic
Purchaser.
(c) Remedies. The Designated Holders, in addition to being
--------
entitled to exercise all rights granted by law, including recovery of damages,
shall be entitled to specific performance of their rights under this Agreement.
The Company agrees that monetary damages would not be adequate compensation for
any loss incurred by reason of a breach by it of the provisions of this
Agreement and hereby agrees to waive in any action for specific performance the
defense that a remedy at law would be adequate.
(d) Amendments and Waivers. Except as otherwise provided herein,
----------------------
the provisions of this Agreement may not be amended, modified or supplemented,
and waivers or consents to departures from the provisions hereof may not be
given unless consented to in writing by (i) the Company and (ii) the General
Atlantic Stockholders holding Registrable Securities representing (after giving
effect to any adjustments) at least a majority of the aggregate number of
Registrable Securities owned by all of the General Atlantic Stockholders. Any
such written consent shall be binding upon the Company and all of the Designated
Holders. Notwithstanding the first sentence of this Section 9(d), the Company,
without the consent of any other party, may amend this Agreement to add any
Subsequent General Atlantic Purchaser as a party to this Agreement as a General
Atlantic Stockholder.
(e) Notices. All notices, demands and other communications
-------
provided for or permitted hereunder shall be made in writing and shall be made
by registered or certified first-class mail, return receipt requested,
telecopier, courier service or personal delivery:
(i) if to the Company:
Bottomline Technologies (de), Inc.
000 Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Telecopy: 000-000-0000
Attention: Xxxxxx X. Xxxxxx
17
with a copy to:
Xxxx and Xxxx LLP
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Telecopy: 617-526-5000
Attention: Xxxx X. Xxxxxxx, Esq.
(ii) if to GAP LP, GapStar or GAP Coinvestment:
c/o General Atlantic Service Corporation
0 Xxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Telecopy: (000) 000-0000
Attention: Xxxxxxx Xxxxxx
Xxxxxx X. Xxxxxx
with a copy to:
Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000-0000
Telecopy: (000) 000-0000
Attention: Xxxxxxx X. Xxxx, Esq.
(iii) if to GmbH Coinvestment:
c/o General Atlantic Partners GmbH
Xxxxxxxxxxx 00
00000 Xxxxxxxxxxx
Xxxxxxx
Telecopy: 011-49-211-602-888-89
Attention: Xxxxxxx Xxxxxx
Xxxxxx X. Xxxxxx
18
with a copy to:
General Atlantic Service Corporation
0 Xxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Telecopy: (000) 000-0000
Attention: Xxxxxxx Xxxxxx
Xxxxxx X. Xxxxxx
and
Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000-0000
Telecopy: (000) 000-0000
Attention: Xxxxxxx X. Xxxx, Esq.
(iv) if to any other Designated Holder, at its
address as it appears on the record books of the Company.
All such notices, demands and other communications shall be
deemed to have been duly given (i) when delivered by hand, if personally
delivered; (ii) one Business Day after being sent, if sent via a reputable
nationwide overnight courier service guaranteeing next business day delivery;
(iii) five (5) Business Days after being sent, if sent by registered or
certified mail, return receipt requested, postage prepaid; and (iv) when receipt
is mechanically acknowledged, if telecopied. Any party may by notice given in
accordance with this Section 9(e) designate another address or Person for
receipt of notices hereunder. Any party may give any notice, request, consent or
other communication under this Agreement using any other means (including,
without limitation, personal delivery, messenger service, first class mail or
electronic mail), but no such notice, request, consent or other communication
shall be deemed to have been duly given unless and until it is actually received
by the party to whom it is given.
(f) Successors and Assigns; Third Party Beneficiaries. This
-------------------------------------------------
Agreement shall inure to the benefit of and be binding upon the successors and
permitted assigns of the parties hereto as hereinafter provided. The Demand
Registration rights and related rights of the General Atlantic Stockholders
contained in Section 3 hereof, shall be (i) with respect to any Registrable
Security that is transferred to an Affiliate of a General Atlantic Stockholders,
automatically transferred to such Affiliate and (ii) with respect to any
Registrable Security that is transferred in all cases to a non-Affiliate,
transferred only with the written consent of the Company which consent shall not
be unreasonably withheld; provided that (x) the transfer of rights pursuant to
clause (i) or clause (ii) shall be contingent upon the transferee providing a
written instrument to the Company notifying the Company of such transfer and
assignment and agreeing in writing to be bound by the terms of this Agreement
and (y) the transfer of rights pursuant to clause (ii) shall be contingent upon
the transferee acquiring not less than 100,000 Registrable
19
Securities (subject to stock splits, stock dividends or similar events). The
incidental or "piggy-back" registration rights of the Designated Holders
contained in Sections 3(b) and 4 hereof and the other rights of each of the
Designated Holders with respect thereto shall be, with respect to any
Registrable Security, automatically transferred to any Person who is the
transferee of such Registrable Security; provided that such transfer of rights
shall be contingent upon (x) the transferee providing a written instrument to
the Company notifying the Company of such transfer and assignment, and agreeing
in writing to be bound by the terms of this Agreement and (y) the transferee
acquiring not less than 100,000 Registrable Securities (subject to stock splits,
stock dividends or similar events). All of the obligations of the Company
hereunder shall survive any such transfer. Except as provided in Section 7, no
Person other than the parties hereto and their successors and permitted assigns
is intended to be a beneficiary of this Agreement.
(g) Counterparts. This Agreement may be executed in any number
------------
of counterparts and by the parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(h) Headings. The headings in this Agreement are for
--------
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(i) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
-------------
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD
TO THE PRINCIPLES OF CONFLICTS OF LAW THEREOF.
(j) Severability. If any one or more of the provisions contained
------------
herein, or the application thereof in any circumstance, is held invalid, illegal
or unenforceable in any respect for any reason, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions hereof shall not be in any way impaired, unless the provisions held
invalid, illegal or unenforceable shall substantially impair the benefits of the
remaining provisions hereof.
(k) Rules of Construction. Unless the context otherwise
---------------------
requires, references to sections or subsections refer to sections or subsections
of this Agreement.
(l) Entire Agreement. Subject to any letter agreements among the
----------------
Company, the Designated Holders and/or certain stockholders of the Company, this
Agreement is intended by the parties as a final expression of their agreement
and intended to be a complete and exclusive statement of the agreement and
understanding of the parties hereto with respect to the subject matter contained
herein. There are no restrictions, promises, representations, warranties or
undertakings with respect to the subject matter contained herein, other than
those set forth or referred to herein. This Agreement supersedes all prior
agreements and understandings among the parties with respect to such subject
matter.
20
(m) Further Assurances. Each of the parties shall execute such
------------------
documents and perform such further acts as may be reasonably required or
desirable to carry out or to perform the provisions of this Agreement.
(n) Other Agreements. Nothing contained in this Agreement shall
----------------
be deemed to be a waiver of, or release from, any obligations any party hereto
may have under, or any restrictions on the transfer of Registrable Securities or
other securities of the Company imposed by, any other agreement including, but
not limited to, the Stock Purchase Agreement.
[Remainder of page intentionally left blank]
IN WITNESS WHEREOF, the undersigned have executed, or have
caused to be executed, this Registration Rights Agreement on the date first
written above.
BOTTOMLINE TECHNOLOGIES (de), INC.
By: /s/ Xxxxxx Xxxxxx
--------------------------------------------
Name: Xxxxxx Xxxxxx
Title: EVP, COO & CFO
GENERAL ATLANTIC PARTNERS 74, L.P.
By: GENERAL ATLANTIC PARTNERS, LLC,
its General Partner
By: /s/ Xxxxxxx Xxxxxx
---------------------------------------
Name: Xxxxxxx Xxxxxx
Title: A Managing Member
GAP COINVESTMENT PARTNERS II, L.P.
By: /s/ Xxxxxxx Xxxxxx
--------------------------------------------
Name: Xxxxxxx Xxxxxx
Title: A General Partner
GAPSTAR, LLC
By: GENERAL ATLANTIC PARTNERS, LLC,
its Managing Member
By: /s/ Xxxxxxx Xxxxxx
---------------------------------------
Name: Xxxxxxx Xxxxxx
Title: A Managing Member
GAPCO GMBH & CO. KG
By: GAPCO MANAGEMENT GMBH,
its General Partner
By: /s/ Xxxxxxx Xxxxxx
---------------------------------------
Name: Xxxxxxx Xxxxxx
Title: A Managing Director
