EXECUTION COPY
--------------
STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT, dated as of March 20, 2003 (this
"Agreement"), by and among Bottomline Technologies (de), Inc., a Delaware
Corporation (the "Seller" or the "Company"), General Atlantic Partners 74, L.P.,
a Delaware limited partnership ("GAP LP"), GAP Coinvestment Partners II, L.P., a
Delaware limited partnership ("GAP Coinvestment"), GapStar, LLC, a Delaware
limited liability company ("GapStar"), and GAPCO GmbH & Co. KG, a German limited
partnership ("GAPCO KG" and, collectively with GAP LP, GAP Coinvestment and
GapStar, the "Purchasers").
WHEREAS, upon the terms and conditions set forth in this Agreement,
Seller proposes to sell, in two closings, to each of the Purchasers the
aggregate number of shares of common stock, par value $0.001 per share (the
"Common Stock"), of the Company, set forth opposite such Purchaser's name on
Schedule 2.1(a) and, subject to, among other things, the condition set forth in
Sections 6.1(b)(iii) and 6.2(b)(iii), Schedule 2.1(b) hereto, for the aggregate
purchase price set forth opposite such Purchaser's name on Schedule 2.1(a) and
Schedule 2.1(b) hereto, as the case may be.
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:
ARTICLE I
DEFINITIONS
-----------
1.1 Definitions. As used in this Agreement, and unless the context
requires a different meaning, the following terms have the meanings indicated:
"Additional Closing" has the meaning set forth in Section 2.3(b) of
this Agreement.
"Additional Closing Date" has the meaning set forth in Section 2.3(b)
of this Agreement.
"Additional Purchased Shares" has the meaning set forth in Section
2.1(b) of this Agreement.
"affiliate" has the meaning set forth in Rule 12b-2 promulgated under
the Exchange Act.
"Agreement" means this Agreement as the same may be amended,
supplemented or modified in accordance with the terms hereof.
"Business Day" means any day other than a Saturday, Sunday or other day
on which commercial banks in the State of New York are authorized or required by
law or executive order to close.
"By-laws" means the Amended and Restated By-laws of the Company in
effect on the Closing Date.
"Certificate of Incorporation" means the Amended and Restated
Certificate of Incorporation of the Company in effect on the Closing Date.
"Closing Dates" has the meaning set forth in Section 2.3(b) of this
Agreement.
"Closings" has the meaning set forth in Section 2.3(b) of this
Agreement.
"Commission" means the Securities and Exchange Commission.
"Common Stock" has the meaning set forth in the recitals to this
Agreement.
"Company" has the meaning set forth in the preamble to this Agreement.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations of the Commission thereunder.
"GAP Coinvestment" has the meaning set forth in the preamble to this
Agreement.
"GAPCO KG" has the meaning set forth in the preamble to this Agreement.
"GAP LP" has the meaning set forth in the preamble to this Agreement.
"GapStar" has the meaning set forth in the preamble to this Agreement.
"Governmental Authority" means the government of any nation, state,
city, locality or other political subdivision thereof, any entity exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government, and any corporation or other entity owned or
controlled, through stock or capital ownership or otherwise, by any of the
foregoing.
"Initial Closing" has the meaning set forth in Section 2.3(a) of this
Agreement.
"Initial Closing Date" has the meaning set forth in Section 2.3(a) of
this Agreement.
"Initial Purchased Shares" has the meaning set forth in Section 2.1(a)
of this Agreement.
"Lien" means any mortgage, deed of trust, pledge, hypothecation,
assignment, encumbrance, voting restriction (statutory or other), lien
(statutory or other) or preference, priority, right or other security interest
or preferential arrangement of any kind or nature whatsoever.
"Nasdaq" has the meaning set forth in Section 2.1(b) of this Agreement.
2
"Orders" has the meaning set forth in Section 3.2 of this Agreement.
"Person" means any individual, firm, corporation, partnership, trust,
incorporated or unincorporated association, joint venture, joint stock company,
limited liability company, Governmental Authority or other entity of any kind,
and shall include any successor (by merger or otherwise) of such entity.
"Purchased Shares" has the meaning set forth in Section 2.1(b) of this
Agreement.
"Purchasers" has the meaning set forth in the preamble to this
Agreement.
"Requirement of Law" means, as to any Person, any law, statute, treaty,
rule, regulation, right, privilege, qualification, license or franchise or
determination of an arbitrator or a court or other Governmental Authority or
stock exchange, in each case applicable or binding upon such Person or any of
its property or to which such Person or any of its property is subject or
pertaining to any or all of the transactions contemplated or referred to herein.
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations of the Commission thereunder.
"Seller" has the meaning set forth in the preamble to this Agreement.
"Subsidiaries" means, as of the relevant date of determination, with
respect to any Person, a corporation or other Person of which 50% or more of the
voting power of the outstanding voting equity securities or 50% or more of the
outstanding economic equity interest is held, directly or indirectly, by such
Person. Unless otherwise qualified, or the context otherwise requires, all
references to a "Subsidiary" or to "Subsidiaries" in this Agreement shall refer
to a Subsidiary or Subsidiaries of the Company.
ARTICLE II
PURCHASE AND SALE OF COMMON STOCK
---------------------------------
2.1 Purchases and Sales.
(a) Subject to the terms and conditions herein set forth,
Seller agrees to sell to each Purchaser, and each Purchaser, severally and not
jointly, agrees to purchase from Seller, on the Initial Closing Date (as defined
below), at a price per share equal to $5.14, the aggregate number of shares of
Common Stock set forth opposite such Purchaser's name on Schedule 2.1(a) hereto,
for the aggregate purchase price set forth opposite such Purchaser's name on
Schedule 2.1(a) hereto (all of the shares of Common Stock being purchased
pursuant to Section 2.1(a) being referred to herein as the "Initial Purchased
Shares").
(b) Subject to the terms and conditions herein set forth,
including the receipt of a written statement by the Company from The Nasdaq
National Market (the "Nasdaq") confirming that the issuance of the Additional
Shares does not require stockholder approval,
3
Seller agrees to sell to each Purchaser, and each Purchaser, severally and not
jointly, agrees to purchase from Seller, on the Additional Closing Date (as
defined below), at a price per share equal to $5.14, the aggregate number of
shares of Common Stock set forth opposite such Purchaser's name on Schedule
2.1(b) hereto, for the aggregate purchase price set forth opposite such
Purchaser's name on Schedule 2.1(b) hereto (all of the shares of Common Stock
being purchased pursuant to Section 2.1(b) being referred to herein as the
"Additional Purchased Shares" and, together with the Initial Purchased Shares,
the "Purchased Shares").
2.2 Use of Proceeds. The Company shall use the proceeds from the
sale of the Purchased Shares to the Purchasers to fund the Company's working
capital, acquisitions and strategic investments.
2.3 Closings.
(a) Subject to the satisfaction or waiver of the
conditions set forth in Section 6.1(a) and Section 6.2(a), the closing of the
sale and purchase of the Initial Purchased Shares (the "Initial Closing") shall
take place at the offices of Paul, Weiss, Rifkind Xxxxxxx & Xxxxxxxx LLP, at
10:00 a.m., local time, on the Business Day upon which the conditions set forth
in Section 6.1(a) and Section 6.2(a) are satisfied or waived as provided
therein, or at such other time, place and date that Seller and the Purchasers
may agree in writing (the "Initial Closing Date").
(b) Subject to the satisfaction or waiver of the
conditions set forth in Section 6.1(b) and Section 6.2(b), the closing of the
sale and purchase of the Additional Purchased Shares (the "Additional Closing")
shall take place at the offices of Paul, Weiss, Rifkind Xxxxxxx & Xxxxxxxx LLP,
at 10:00 a.m., local time, on the Business Day upon which the conditions set
forth in Section 6.1(b) and Section 6.2(b) are satisfied or waived as provided
therein, or at such other time, place and date that Seller and the Purchasers
may agree in writing (the "Additional Closing Date"). The Additional Closing and
the Initial Closing are collectively referred to as the "Closings" and the date
of the Additional Closing and the Initial Closing are collectively referred to
as the "Closing Dates."
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
---------------------------------------------
The Company represents and warrants to each of the Purchasers as
follows:
3.1 Corporate Existence and Power. The Company (a) is a
corporation duly organized, validly existing and in good standing under the laws
of the jurisdiction of its incorporation; (b) has all requisite corporate power
and authority to own and operate its property, to lease the property it operates
as lessee and to conduct the business in which it is currently, or is proposed
to be, engaged; and (c) is duly qualified as a foreign corporation, licensed and
in good standing under the laws of each jurisdiction in which its ownership,
lease or operation of property or the conduct of its business requires such
qualification, except where the failure to be so qualified could not reasonably
be expected to have a material adverse effect on the assets, business,
properties, operations or condition (financial or otherwise) of the Company and
its
4
Subsidiaries, taken as a whole. The Company has the corporate power and
authority to execute, deliver and perform its obligations under this Agreement.
3.2 Authorization; No Contravention; DGCL Section 203. The
execution, delivery and performance by the Company of this Agreement and the
transactions contemplated hereby (a) have been duly authorized by all necessary
corporate action of the Company; (b) do not contravene the terms of the
Certificate of Incorporation or the By-laws or the organizational documents of
any of the Subsidiaries; (c) except as set forth on Schedule 3.2(c) hereto, do
not violate, conflict with or result in any breach, default or contravention of
(or with due notice or lapse of time or both would result in any breach, default
or contravention of), or the creation of any Lien under, any Contractual
Obligation of the Company or any of its Subsidiaries or any Requirement of Law
applicable to the Company or any of its Subsidiaries; and (d) do not violate any
judgment, injunction, writ, award, decree or order of any nature (collectively,
"Orders") of any Governmental Authority against, or binding upon, the Company or
any of its Subsidiaries. The purchase and sale of all of the Purchased Shares
has been approved by the Company's Board of Directors for purposes of Section
203 of the Delaware General Corporation Law. 3.3 Governmental Authorization;
Third Party Consents. Except as set forth on Schedule 3.3 and assuming receipt
of a written statement from Nasdaq confirming that the issuance of the
Additional Shares does not require stockholder approval, no approval, consent,
compliance, exemption, authorization or other action by, or notice to, or filing
with, any Governmental Authority or any other Person, and no lapse of a waiting
period under a Requirement of Law, is necessary or required in connection with
the execution, delivery or performance (including, without limitation, the sale,
issuance and delivery of the Purchased Shares) by, or enforcement against, the
Company of this Agreement or the transactions contemplated hereby.
3.4 Binding Effect. This Agreement has been duly executed and
delivered by the Company, and constitutes the legal, valid and binding
obligation of the Company, enforceable against the Company in accordance with
its terms, except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, fraudulent conveyance or transfer, moratorium or
similar laws affecting the enforcement of creditors' rights generally and by
general principles of equity relating to enforceability (regardless of whether
considered in a proceeding at law or in equity).
3.5 Private Offering. No form of general solicitation or general
advertising was used by Seller or its representatives in connection with its
issuance of the Purchased Shares. No registration of the Purchased Shares,
pursuant to the provisions of the Securities Act or any state securities or
"blue sky" laws, is required by the offer or sale of the Purchased Shares to the
Purchasers.
3.6 Capitalization. As of the date of this Agreement, the
authorized capital stock of the Company consists of (i) 50,000,000 shares of
Common Stock, of which 16,177,450 shares are issued and 15,583,613 shares are
outstanding and (ii) 4,000,000 shares of Preferred Stock, none of which are
issued and outstanding. The Purchased Shares are duly authorized, and when
issued and sold to the Purchasers after payment therefor, will be validly
issued, fully paid and non-assessable, will be issued in compliance with the
registration and qualification
5
requirements of all applicable federal, state and foreign securities laws and
will be free and clear of all other Liens. All of the issued and outstanding
shares of Common Stock are duly authorized, validly issued, fully paid and
non-assessable, and were issued in compliance with the registration and
qualification requirements of all applicable federal, state and foreign
securities laws.
3.7 Registration Rights. The Purchased Shares are "Registrable
Securities," as defined in the Registration Rights Agreement by and among the
Company and the Purchasers, dated as of January 15, 2002.
3.8 Broker's, Finder's or Similar Fees. There are no brokerage
commissions, finder's fees or similar fees or commissions payable by the Company
or any of its Subsidiaries in connection with the transactions contemplated
hereby based on any agreement, arrangement or understanding with the Company or
any of its Subsidiaries or any action taken by any such Person.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS
------------------------------------------------
Each of the Purchasers hereby represents and warrants, severally and
not jointly, to Seller as follows:
4.1 Existence and Power. Such Purchaser has the requisite
partnership or limited liability company, as the case may be, power and
authority to execute, deliver and perform its obligations under this Agreement.
4.2 Authorization; No Contravention. The execution, delivery and
performance by such Purchaser of this Agreement and the transactions
contemplated hereby (a) have been duly authorized by all necessary limited
partnership or limited liability company, as the case may be, action, (b) do not
contravene the terms of such Purchaser's organizational documents, or any
amendment thereof, (c) do not violate, conflict with or result in any breach or
contravention of, or the creation of any Lien under, any Contractual Obligation
of such Purchaser or any Requirement of Law applicable to such Purchaser (except
for the Lien created on the Purchased Shares purchased by GapStar) and (d) do
not violate any Orders of any Governmental Authority against, or binding upon,
such Purchaser.
4.3 Governmental Authorization; Third Party Consents. Assuming
receipt of a written statement from Nasdaq confirming that the issuance of the
Additional Shares does not require stockholder approval, no approval, consent,
compliance, exemption, authorization or other action by, or notice to, or filing
with, any Governmental Authority or any other Person, and no lapse of a waiting
period under any Requirement of Law, is necessary or required in connection with
the execution, delivery or performance by, or enforcement against, such
Purchaser of this Agreement or the transactions contemplated hereby.
4.4 Binding Effect. This Agreement has been duly executed and
delivered by such Purchaser and constitutes the legal, valid and binding
obligations of such Purchaser,
6
enforceable against it in accordance with its terms, except as enforceability
may be limited by applicable bankruptcy, insolvency, reorganization, fraudulent
conveyance or transfer, moratorium or similar laws affecting the enforcement of
creditors' rights generally or by equitable principles relating to
enforceability (regardless of whether considered in a proceeding at law or in
equity).
4.5 Restricted Securities. The Purchased Shares to be acquired by
such Purchaser pursuant to this Agreement are being acquired for its own account
for investment only, and not with a view to, or for sale in connection with, any
distribution of such Purchased Shares or any part thereof in any transaction
that would be in violation of the securities laws of the United States of
America. Such Purchaser understands that such Purchased Shares are "restricted
securities" within the meaning of Rule 144 under the Securities Act and that the
Purchased Shares cannot be sold, transferred or otherwise disposed of except in
compliance with the Securities Act and applicable state securities laws, as then
in effect.
4.6 Accredited Investor. Such Purchaser is an "Accredited
Investor" within the meaning of Rule 501 of Regulation D under the Securities
Act.
ARTICLE V
VOTING RIGHTS
-------------
5.1 Voting Rights.
(a) Subject to Section 5.2, each Purchaser covenants and
agrees that from the Additional Closing Date and until such time as the
Purchasers and their affiliates own in the aggregate less than 20% of the
outstanding Common Stock of the Company, at which time this Section 5.1 shall
automatically terminate (unless earlier terminated pursuant to Section 5.2),
each Purchaser hereby grants to, and appoints, the Company, as its proxy and
attorney-in-fact (with full power of substitution), for and in its name, place
and stead, to vote such number of Additional Purchased Shares which, if
aggregated with all other shares of Common Stock owned by the Purchasers and
their affiliates, would result in the ownership by the Purchasers and their
affiliates of 20% or more of the outstanding Common Stock, at any meeting of the
stockholders of the Company, however called, and in any action by written
consent of the stockholders of the Company.
(b) Except as otherwise provided for herein, each
Purchaser hereby (i) affirms that the proxy is coupled with an interest and,
except as provided in Section 5.2, may under no circumstances be revoked, and
(ii) ratifies and confirms all that the proxies appointed hereunder may lawfully
do or cause to be done by virtue hereof. Notwithstanding any other provisions of
this Agreement, the proxy granted hereunder shall automatically terminate upon
the termination of this Section 5.1 or as provided in Section 5.2, whichever is
earlier.
(c) The parties hereto agree that irreparable damage
would occur in the event any provision of this Section 5.1 was not performed in
accordance with the terms hereof and that the parties shall be entitled to
specific performance of the terms hereof, in addition to any other remedy at law
or in equity.
7
5.2 Stockholder Approval. If the Additional Closing is
consummated, then prior to its next annual meeting of stockholders, the Company
shall prepare and file with the Commission a proxy statement of the Company
relating to such annual meeting that will include, among other things, the
solicitation of the Company's stockholders for the ratification of the issuance
and sale of the Additional Purchased Shares to the Purchasers (the "Proxy
Statement"). The Company shall use its reasonable best efforts to cause the
Proxy Statement to be approved by the Commission and mailed to the Company's
stockholders prior to such annual meeting. The Purchasers shall furnish all
information concerning themselves as the Company may reasonably request in
connection with such actions and the preparation of the Proxy Statement. The
Company shall cause the Proxy Statement to comply as to form and substance in
all material respects with the applicable requirements of the Exchange Act,
including Section 14(a) thereof and the respective regulations promulgated
thereunder and the rules and regulations of Nasdaq. The Proxy Statement shall
include the unconditional recommendation of the Board of Directors of the
Company to the stockholders of the Company that they vote, as required by
Nasdaq, in favor of the ratification of the issuance of Additional Purchased
Shares. The Company shall use reasonable efforts (through its agents or
otherwise) to solicit from its stockholders proxies in favor of the ratification
of the issuance Additional Purchased Shares. If the Company's stockholders
ratify such issuance and sale of the Additional Purchased Shares to the
Purchasers, then Section 5.1 shall automatically terminate and the proxy therein
shall be irrevocably terminated.
ARTICLE VI
CONDITIONS TO CLOSING
6.1 Conditions to the Obligation of the Purchasers to Close.
(a) The obligation of the Purchasers to purchase the
Initial Purchased Shares at the Initial Closing, to pay the purchase price
therefor at the Initial Closing and to perform any obligations hereunder shall
be subject to the satisfaction as determined by, or waiver by, the Purchasers of
the following conditions on or before the Initial Closing Date.
(i) The representations and warranties of Seller
contained in Article III hereof shall be true and correct in
all respects at and on the Initial Closing Date.
(ii) Seller shall have delivered to each Purchaser
a stock certificate representing the number of Initial
Purchased Shares to be purchased on the Initial Closing as set
forth opposite such Purchaser's name on Schedule 2.1(a)
hereto.
(iii) Seller shall have delivered to the Purchasers
the opinion of Xxxx and Xxxx LLP delivered by Seller to the
Company's transfer agent in order to register the Additional
Purchased Shares in the name of the Purchasers.
8
(iv) The Purchasers shall have received an opinion
of Xxxx and Xxxx LLP, dated the Initial Closing Date, relating
to the transactions contemplated by this Agreement.
(v) The Company shall have performed and complied
with all of its agreements and conditions set forth herein
that are required to be performed or complied with thereby on
or before the Initial Closing Date.
(vi) The Purchasers shall have received a
certificate from the Company, in form and substance
satisfactory to the Purchasers, dated the Initial Closing Date
and signed by the Secretary or an Assistant Secretary of the
Company, certifying that the attached copy of the resolutions
of the Board of Directors approving this Agreement and the
transactions contemplated hereby (including an approval of the
foregoing for purposes of Section 203 of the Delaware General
Corporation Law) are all true, complete and correct and remain
unamended and in full force and effect.
(vii) The Purchasers shall have received a
certificate from the Company, in form and substance
satisfactory to the Purchasers, dated the Initial Closing Date
and signed by the Chief Executive Officer or Chief Financial
Officer of the Company on behalf of the Company, certifying
the matters set forth in Sections 6.1(a)(i) and 6.1(a)(v).
(b) The obligation of the Purchasers to purchase the
Additional Purchased Shares at the Additional Closing, to pay the purchase price
therefor at the Additional Closing and to perform any obligations hereunder
shall be subject to the satisfaction as determined by, or waiver by, the
Purchasers of the following conditions on or before the Additional Closing Date.
(i) The representations and warranties of Seller
contained in Article III hereof shall be true and correct in
all respects at and on the Additional Closing Date.
(ii) Seller shall have delivered to each Purchaser
a stock certificate representing the number of Additional
Purchased Shares to be purchased on the Additional Closing as
set forth opposite such Purchaser's name on Schedule 2.1(b)
hereto.
(iii) Seller and the Purchasers shall have received
a written statement from Nasdaq, in form and substance
reasonably satisfactory to Seller and the Purchasers,
confirming that the issuance of the Additional Purchased
Shares does not require stockholder approval.
(iv) The Company shall have performed and complied
with all of its agreements and conditions set forth herein
that are required to be performed or complied with thereby on
or before the Additional Closing Date.
9
(v) The Purchasers shall have received a
certificate from the Company, in form and substance
satisfactory to the Purchasers, dated the Additional Closing
Date and signed by the Secretary or an Assistant Secretary of
the Company, certifying that the attached copy of the
resolutions of the Board of Directors approving this Agreement
and the transactions contemplated hereby (including an
approval of the foregoing for purposes of Section 203 of the
Delaware General Corporation Law) are all true, complete and
correct and remain unamended and in full force and effect.
(vi) The Purchasers shall have received a
certificate from the Company, in form and substance
satisfactory to the Purchasers, dated the Additional Closing
Date and signed by the Chief Executive Officer or Chief
Financial Officer of the Company on behalf of the Company,
certifying the matters set forth in Sections 6.1(b)(i) and
6.1(b)(iv).
6.2 Conditions to the Obligation of the Seller to Close.
(a) The obligation of Seller to issue the Initial
Purchased Shares shall be subject to the satisfaction as determined by, or
waiver by, Seller of the following conditions on or before the Initial Closing
Date.
(i) The representations and warranties of the
Purchasers contained in Article IV of this Agreement shall be
true and correct in all respects at and on the Initial Closing
Date.
(ii) Simultaneously with the Initial Closing, each
Purchaser shall have wired to Seller's account designated in
writing by Seller to the Purchasers prior to the Initial
Closing Date, the aggregate purchase price set forth opposite
such Purchaser's name on Schedule 2.1(a) hereto.
(b) The obligation of Seller to issue the Additional
Purchased Shares shall be subject to the satisfaction as determined by, or
waiver by, Seller of the following conditions on or before the Additional
Closing Date.
(i) The representations and warranties of the
Purchasers contained in Article IV of this Agreement shall be
true and correct in all respects at and on the Additional
Closing Date.
(ii) Simultaneously with the Additional Closing,
each Purchaser shall have wired to Seller's account designated
in writing by Seller to the Purchasers prior to the Additional
Closing Date, the aggregate purchase price set forth opposite
such Purchaser's name on Schedule 2.1(b) hereto.
(iii) Seller and the Purchasers shall have received
a written statement from Nasdaq, in form and substance
reasonably satisfactory to
10
Seller and the Purchasers, confirming that the issuance of the
Additional Purchased Shares does not require stockholder
approval.
ARTICLE VII
TERMINATION OF AGREEMENT
------------------------
7.1 Termination Prior to the Initial Closing. This Agreement may
be terminated prior to the Initial Closing as follows:
(a) at any time on or prior to the Initial Closing Date,
by mutual written consent of Seller and the Purchasers;
(b) at the election of either Seller or the Purchasers by
written notice to the other at any time after 5:00 p.m., New York time, on March
28, 2003, if the Initial Closing shall not have occurred; provided, however,
that the right to terminate this Agreement under this Section 7.1(b) shall not
be available to any party whose breach of any representation, warranty, covenant
or agreement under this Agreement has been the cause of, or resulted in, the
failure of the Initial Closing to occur on or before such date;
(c) at the election of Seller, if there has been a
material breach of any representation, warranty, covenant or agreement on the
part of any of the Purchasers contained in this Agreement, which breach (i)
would cause the conditions set forth in Section 6.2(a) not to be satisfied and
(ii) is incapable of cure or has not been cured within five (5) Business Days of
notice to the Purchasers of such breach; or
(d) at the election of the Purchasers, if there has been
a material breach of any representation, warranty, covenant or agreement on the
part of the Company contained in this Agreement, which breach (i) would cause
the conditions set forth in Section 6.1(a) not to be satisfied and (ii) is
incapable of cure or has not been cured within five (5) Business Days notice to
Seller of such breach.
7.2 Effect of Termination Prior to the Initial Closing. If this
Agreement is terminated prior to the Initial Closing and the transactions
contemplated hereby are not consummated as described above, (a) this Agreement
shall become void and of no further force and effect, except for the provisions
of this Section 7.2 and Articles I and VIII, (b) none of the parties hereto
shall have any liability in respect of a termination of this Agreement pursuant
to Section 7.1(a) or Section 7.1(b), and (c) nothing shall relieve any of the
parties from liability for actual damages resulting from a termination of this
Agreement pursuant to Section 7.1(c) or Section 7.1(d); provided, however, that
none of the parties hereto shall have any liability for speculative, indirect,
unforeseeable or consequential damages or lost profits resulting from any legal
action relating to any termination of this Agreement.
7.3 Termination Prior to the Additional Closing. If the Initial
Closing is consummated, then Sections 2.1(b) and 2.3(b) and the obligations of
the Company and the Purchasers to consummate the purchase and sale of the
Additional Purchased Shares and the Additional Closing may be terminated prior
to the Additional Closing as follows:
11
(a) at any time on or prior to the Additional Closing
Date, by mutual written consent of Seller and the Purchasers;
(b) at the election of either Seller or the Purchasers by
written notice to the other at any time after 5:00 p.m., New York time, on April
11, 2003, if the Additional Closing shall not have occurred, unless, in either
case, such date is extended by the mutual written consent of Seller and the
Purchasers; provided, however, that the right to terminate this Agreement under
this Section 7.3(b) shall not be available to any party whose breach of any
representation, warranty, covenant or agreement under this Agreement has been
the cause of, or resulted in, the failure of the Additional Closing to occur on
or before such date;
(c) at the election of Seller, if there has been a
material breach of any representation, warranty, covenant or agreement on the
part of any of the Purchasers contained in this Agreement, which breach (i)
would cause the conditions set forth in Section 6.2(b) not to be satisfied and
(ii) is incapable of cure or has not been cured within five (5) Business Days of
notice to the Purchasers of such breach; or
(d) at the election of the Purchasers, if there has been
a material breach of any representation, warranty, covenant or agreement on the
part of the Company contained in this Agreement, which breach (i) would cause
the conditions set forth in Section 6.1(b) not to be satisfied and (ii) is
incapable of cure or has not been cured within five (5) Business Days notice to
Seller of such breach.
7.4 Effect of Termination Prior to the Additional Closing. If the
Initial Closing is consummated, but Sections 2.1(b) and 2.3(b) and the
obligations of the Company and the Purchasers to consummate the purchase and
sale of the Additional Purchased Shares and the Additional Closing terminate
pursuant to Section 7.3, then (a) this Agreement shall remain in full force and
effect, except for Sections 2.1(b) and 2.3(b) and the obligations of the Company
and the Purchasers to consummate the purchase and sale of the Additional
Purchased Shares and the Additional Closing, which shall terminate and become
void and of no further force and effect, (b) none of the parties hereto shall
have any liability in respect of a termination pursuant to Section 7.3(a) or
Section 7.3(b), including as a result of the failure to satisfy the conditions
contained in Sections 6.1(b)(iii) and 6.2(b)(iii) and (c) nothing shall relieve
any of the parties from liability for actual damages resulting from a
termination pursuant to Section 7.3(c) or Section 7.3(d); provided, however,
that none of the parties hereto shall have any liability for speculative,
indirect, unforeseeable or consequential damages or lost profits resulting from
any legal action relating to any termination of this Agreement.
ARTICLE VIII
MISCELLANEOUS
-------------
8.1 Survival of Representations and Warranties. All of the
representations and warranties made herein shall survive the execution and
delivery of this Agreement until the Closing Date, except for the
representations and warranties made in Sections 3.1, 3.2, 3.4, 3.5, 3.6, 3.7 and
3.8, which representations and warranties shall survive until the third
anniversary of the Initial Closing Date.
12
8.2 Notices. All notices, demands and other communications
provided for or permitted hereunder shall be made in writing and shall be by
registered or certified first-class mail, return receipt requested, telecopier,
courier service or personal delivery:
if to Seller:
Bottomline Technologies (de), Inc.
000 Xxxxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: President
with a copy to:
Xxxx and Xxxx LLP
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: Xxxx X. Xxxxxxx, Esq.
if to the Purchasers:
c/o General Atlantic Service Corporation
0 Xxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: Xxxxxxx Xxxxxx
with a copy to:
Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000-0000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: Xxxxxxx X. Xxxx, Esq.
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 8.2
designate another address or Person for receipt of notices hereunder. Any party
may give any
13
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.
8.3 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. Subject to applicable securities laws
and the terms and conditions thereof, the Purchasers may assign any of their
rights under this Agreement to any of their respective affiliates (as defined in
Rule 12b-2 of the General Rules and Regulations under the Securities Exchange
Act of 1934, as amended), provided that each such assignee shall make the
representations and warranties under Article IV. No Person other than the
parties hereto and their successors and permitted assigns is intended to be a
beneficiary of this Agreement.
8.4 Amendment and Waiver.
(a) No failure or delay on the part of Seller or the
Purchasers in exercising any right, power or remedy hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise of any such right,
power or remedy preclude any other or further exercise thereof or the exercise
of any other right, power or remedy.
(b) Any amendment, supplement or modification of or to
any provision of this Agreement, any waiver of any provision of this Agreement,
and any consent to any departure by Seller or the Purchasers from the terms of
any provision of this Agreement, shall be effective (i) only if it is made or
given in writing and signed by Seller and the Purchasers purchasing a majority
of the Purchased Shares and (ii) only in the specific instance and for the
specific purpose for which made or given.
8.5 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.
8.6 GOVERNING LAW; CONSENT TO JURISDICTION. 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.
8.7 Expenses. Each of Seller and the Purchasers shall bear its or
his own costs and expenses incurred in connection with the negotiation,
execution and consummation of this Agreement.
8.8 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.
14
8.9 Entire Agreement. This Agreement, together with the schedules
hereto, 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 in respect of the subject matter contained
herein and therein. There are no restrictions, promises, representations,
warranties or undertakings, other than those set forth or referred to herein or
therein. This Agreement, together with the schedules hereto, supersedes all
prior agreements and understandings between the parties with respect to such
subject matter.
8.10 Public Announcements. Following the date hereof, the Company
shall be permitted to issue a press release relating to this Agreement and the
transactions contemplated hereby. The Purchasers shall have the opportunity to
review and comment on such press release prior to its issuance, which review and
comment shall be provided as expeditiously as possible and in any event within
48 hours of delivery of such press release by the Company to the Purchasers, and
such press release shall be in form and substance reasonably satisfactory to the
Purchasers. Except as set forth in the previous sentence, neither the Company,
nor the Purchasers will issue any press release or make any public statements
with respect to this Agreement or the transactions contemplated hereby without
the prior written consent of the other parties hereto, except to the extent such
party reasonably believes such press release or public statement is required by
applicable law or stock market regulations; provided however that the Company
and the Purchasers may make reasonable public statements consistent with prior
public statements otherwise permitted under this Section 8.10; and provided
further, that GAP LLC may disclose on its worldwide web page,
xxx.xxxxxxxxxx.xxx, the name of the Company, the name of the Chief Executive
Officer of the Company, a brief description of the business of the Company, the
Company's logo and the aggregate amount of the Purchaser's investment in the
Company. Notwithstanding the foregoing, the Company will not use or refer to the
name of any Purchaser in any public statement or disclosure without the consent
of such Purchaser except to the extent that such party reasonably believes such
statement or disclosure is required by applicable law or stock market
regulations.
8.11 Further Assurances. Each of the parties shall execute such
documents and perform such further acts (including, without limitation,
obtaining any consents, exemptions, authorizations or other actions by, or
giving any notices to, or making any filings with, any Governmental Authority or
any other Person) as may be reasonably required or desirable to carry out or
perform the provisions of this Agreement.
[Remainder of page intentionally left blank]
15
IN WITNESS WHEREOF, the undersigned have executed, or have
caused to be executed, this Agreement on the date first written above.
BOTTOMLINE TECHNOLOGIES (de), INC.
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: President and Chief Executive
Officer
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 Sole 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: Managing Director
16
Schedule 2.1(a)
---------------
INITIAL PURCHASED SHARES AND PURCHASE PRICE
================================================================================
Purchaser Initial Purchased Shares Purchase Price
--------- ------------------------ --------------
GAP LP 222,530 $1,143,804.20
GapStar 17,575 $ 90,335.50
GAPCO KG 348 $ 1,788.72
GAP Coinvestment 29,547 $ 151,871.58
Total: 270,000 $1,387,800.00
================================================================================
17
Schedule 2.1(b)
---------------
ADDITIONAL PURCHASED SHARES AND PURCHASE PRICE
================================================================================
Purchaser Additional Purchased Shares Purchase Price
--------- --------------------------- --------------
GAP LP 601,654 $3,092,501.56
GapStar 47,518 $ 244,242.52
GAPCO KG 941 $ 4,836.74
GAP Coinvestment 79,887 $ 410,619.18
Total: 730,000 $3,752,200.00
================================================================================
18
