EXHIBIT 10.5
FIRST AMENDMENT AND RESTATEMENT
OF
BOTTOMLINE TECHNOLOGIES, INC.
STOCK RIGHTS AND VOTING AGREEMENT
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THIS FIRST AMENDMENT AND RESTATEMENT OF STOCK RIGHTS AND VOTING AGREEMENT
(this "Agreement"), made as of March 31, 1992 (the "Effective Date"), by and
between BOTTOMLINE TECHNOLOGIES, INC., a New Hampshire corporation (the
"Corporation"); and the shareholders of the Corporation listed on Exhibit A
attached hereto (collectively the "Shareholders" or "Holders").
Recitals:
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The Corporation, Xxxxxx XxXxxx ("XxXxxx"), Xxxxx Xxxxxx ("Xxxxxx"), Xxxxxxx
X. X'Xxxxx ("X'Xxxxx"), Xxxxxx Xxx Xxxxx, Xx. ("Xxx Xxxxx"), and Xxxxxx X. Xxxxx
("Xxxxxx Xxxxx") (collectively, the "Existing Shareholders") are parties to that
certain Stock Rights and Voting Agreement dated June 29, 1990 (the "Existing
Stock Rights Agreement"). The remaining Shareholders (collectively the "New
Shareholders") and the Corporation are parties to a certain Stock Purchase
Agreement of even date (the "Stock Purchase Agreement"), pursuant to which the
New Shareholders have agreed to purchase certain shares of the Corporation's
common stock, One-tenth Cent ($0.001) par value (the "Stock") and warrants for
certain shares of Stock. The purpose of this Agreement is to provide the
Shareholders (including the Existing Shareholders and the New Shareholders) with
certain stock and voting rights, all as more particularly set forth in this
Agreement. It is intended that this Agreement supersede and replace the Existing
Stock Rights Agreement.
NOW, THEREFORE, in consideration of the foregoing Recitals and the mutual
covenants and representations set forth in this Agreement, the parties hereby
agree that the provisions of the Existing Stock Rights Agreement be and the same
hereby are deleted in their entirety and that the same hereby are superseded and
replaced by the following provisions:
1. Preemptive Rights. The rights set forth in this Section 1 are given
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to X'Xxxxx, Xxx Xxxxx, Xxxxxx Xxxxx, and the New Shareholders only (collectively
the "Purchasers"), and not to XxXxxx or Xxxxxx:
(a) Subject to the exclusions set forth in subsection (f) below, if the
Corporation proposes to issue (a "Proposed Issuance") any unissued or treasury
shares of Stock or any bonds, certificates of indebtedness, debentures,
warrants, options, or other securities, rights, or obligations convertible into
any shares of Stock or carrying any right to subscribe to or acquire any shares
of Stock, then the Corporation shall give each of the Shareholders other than
XxXxxx and Xxxxxx (individually a "Purchaser" and collectively the
"Purchasers"), a written notice (the "Notice") describing the Proposed Issuance
(including the identification of the
securities to be issued, the price payable for such securities, and any other
terms and conditions applicable to the Proposed Issuance).
(b) Each Purchaser shall have the right (the "Preemptive Right") to
subscribe to or acquire all or a portion of such Purchaser's respective
Proportionate Share (as defined below) of the Proposed Issuance. Each Purchaser
shall be entitled to exercise such Purchaser's Preemptive Right in the manner
set forth in the Notice and on terms and conditions that are no less favorable
than the terms and conditions established by the Corporation to govern the
Proposed Issuance.
(c) If any Purchaser fails to exercise such Purchaser's Preemptive Right
within thirty (30) days following such Purchaser's receipt of the Notice, then
such Purchaser's Preemptive Right shall be deemed to have been waived with
respect to the Proposed Issuance, and, for a period of ninety (90) days
thereafter, the Corporation shall be entitled to effect the Proposed Issuance,
in whole or in part, free and clear of such Purchaser's Preemptive Right, at the
price specified in the Notice and upon other terms and conditions no more
favorable to the acquiror(s) of the Proposed Issuance than the terms and
conditions specified in the Notice.
(d) Any Purchaser may waive such Purchaser's Preemptive Right with respect
to any Proposed Issuance by a writing filed with the Board of Directors or the
Secretary of the Corporation.
(e) For purposes of this Section, a Purchaser's "Proportionate Share"
shall mean, as of the date on which a Notice is given, a fraction:
(i) the numerator of which is equal to the number of shares of Stock
owned by such Purchaser as of the Effective Date, including all shares of
Stock being purchased as of the Effective Date by such Purchaser pursuant
to the Stock Purchase Agreement; and
(ii) the denominator of which is equal to the sum of (A) such number
of shares of Stock as are outstanding as of the Effective Date, including
all shares of Stock being purchased as of the Effective Date pursuant to
the Stock Purchase Agreement, plus (B) such number of shares of Stock as
have then been issued pursuant to the exercise of stock options which have
been granted under the Corporation's August 1, 1989 Stock Option Plan, as
amended (the "Stock Option Plan"), plus (C) such number of shares of Stock
as are subject to then-outstanding stock options which have been granted
under the Stock Option Plan.
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Notwithstanding the above, if the outstanding shares of Stock shall be
subdivided or combined into a greater or smaller number of shares or if the
Corporation shall issue any shares of Stock as a stock dividend on its
outstanding Stock, or if a
Purchaser shall transfer any of such Purchaser's Stock (other than to a Related
Transferee as defined in subsection (g) below] of such Purchaser), then the
numbers set forth in subsection (i), and, in the case of a subdivision,
combination, or stock dividend, in subsection (ii) (A) above shall be
proportionately increased or decreased (as the case may be).
(f) Notwithstanding the foregoing provisions of this Section, the
Purchasers' Preemptive Rights shall not apply to:
(i) any Proposed Issuance of stock options under the Stock Option
Plan (or of any shares of Stock pursuant to the exercise of any such stock
option) to an employee of the Corporation (excluding XxXxxx and Xxxxxx and
their respective Affiliates [as defined in subsection (g) below]);
provided, that any Proposed Issuance to XxXxxx or to Xxxxxx, or to the
respective Affiliates of either of them, shall be subject to the
Purchasers' Preemptive Rights;
(ii) any stock dividend or subdivision of shares of Stock, provided
that the securities issued pursuant to such stock dividend or subdivision
are limited to additional shares of Stock;
(iii) any securities issued solely in consideration for the
acquisition (whether by merger of otherwise) by the Corporation or any of
its subsidiaries of all or substantially all of the stock or assets of any
other entity;
(iv) any securities issued pursuant to an underwritten public
offering; or
(v) any Stock issued pursuant to warrants held by the Purchasers or
their Related Transferees.
(g) As used in this Agreement:
(i) an "Affiliate" shall mean a third party which either (A) is
owned by the Corporation or is under common control with the Corporation,
(B) is a trust or other entity in which XxXxxx or Xxxxxx has a beneficial
interest, or (C) is (or is owned or controlled by) a person who is the
spouse, child, or parent of XxXxxx or Xxxxxx; and
(ii) a "Related Transferee" of a Shareholder shall mean a parent,
spouse, or child of such Shareholder, or a trust for the exclusive benefit
of such
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Shareholder and/or the parents, spouse, or children of such Shareholder, to
whom shares of Stock owned by such Shareholder have been transferred.
(h) The provisions of this Section 1 are personal to each Purchaser and
may only be exercised by such Purchaser, while such Purchaser, or a Related
Transferee of such Purchaser (such Related Transferee being deemed a Purchaser
for purposes of this Section 1), owns Stock of the Corporation which was
purchased prior to or effective as of the Effective Date.
2. Piggvback Rights. The rights set forth in this Section 2 are given to
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each of the Shareholders:
(a) If the Corporation proposes to register, either for its own account or
for the account of any Shareholder, under the Securities Act of 1933, as
amended, any shares of Stock for sale for cash or other consideration to the
public (other than a registration relating solely to either a transaction under
Rule 145 of the Securities and Exchange Commission or an employee benefit plan)
(a "Registration"), the Corporation shall notify the Shareholders in writing and
shall afford the Shareholders the opportunity to include in the Registration all
or any portion of the shares of Stock owned by them; provided, that the
inclusion of such shares of Stock in the Registration shall be subject to:
(i) compliance with the terms and conditions of any underwriting
agreement covering the Registration;
(ii) if and to the extent that the managing underwriter determines
that marketing factors require a limitation of the number of shares of
Stock to be underwritten, then, with respect to the total number of shares
of Stock of the Shareholders so determined as being available for inclusion
in the Registration, each Shareholder (subject to the provisions of
subsection (g) below governing Related Transferees) shall be entitled to
include such Shareholder's Percentage (as defined in Section 3(a)(i) below)
of such total number of shares so determined as being available for
inclusion in the Registration; provided, further, that if all of the shares
proposed to be included in the Registration by a particular Shareholder are
thereby included, then any remaining shares which the managing underwriter
determines are available for inclusion in the Registration shall be split
between the other Shareholders (proportionate to their respective
Percentages) unless all of the shares proposed to be included by one or
more of those Shareholders are thereby included, in which event any
remaining shares available for inclusion shall be available to the
remaining such Shareholder(s) (proportionate to their respective
Percentages); and
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(iii) prohibition from inclusion if, in the judgment of the managing
underwriter, such prohibition is required.
(b) In connection with the inclusion of any shares of Stock of the
Shareholders in a Registration, the Corporation will use its best efforts to
register or qualify the shares of Stock covered by such registration statement
under the securities or "blue sky" laws of such jurisdictions as the
Shareholders or, in the case of an underwritten public offering, the managing
underwriter reasonably shall request; provided, however, that the Corporation
shall not for any such purpose be required to qualify generally to transact
business as a foreign corporation in any jurisdiction where it is not so
qualified or to consent to general service of process in any such jurisdiction.
(c) The Corporation and not the Shareholders, shall be responsible for the
payment of all fees and expenses (including, without limitation, registration
and filing fees, printing expenses, fees and disbursements of counsel and
independent public accountants for the Corporation, fees and expenses (including
counsel fees) incurred in connection with complying with state securities or
"blue sky" laws, fees of the National Association of Securities Dealers, Inc.,
transfer taxes, fees of transfer agents and registrars, and costs of insurance)
incurred by the Corporation in connection with the Registration and the
inclusion of any shares of Stock by the Shareholders therein; provided, that
each Shareholder, and not the Corporation, shall be responsible for all
underwriting discounts and selling commissions applicable to the sale of any of
such Shareholder's shares of Stock.
(d) In connection with any Registration where shares of Stock of a
Shareholder are also registered pursuant to the provisions of this Section:
(i) the Corporation will indemnify and hold harmless such Shareholder
against any losses, claims, damages, or liabilities, joint or several, to
which such Shareholder may become subject under the Securities Act or
otherwise, insofar as such losses, claims, damages, or liabilities (or
actions in respect thereof):
(A) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact relating to the
Corporation and contained in (1) the registration statement under
which such shares were registered under the Securities Act, (2) the
final prospectus therefor, or (3) any amendment or supplement thereof,
or
(B) arise out of or are based upon the omission or alleged
omission to state therein a material fact relating to the Corporation
that is (1) required to be stated therein, or (2) necessary to make
the statements therein not misleading;
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(ii) the Corporation will reimburse such Shareholder for any legal or
other expenses reasonably incurred by him in connection with investigating
or defending any such loss, claim, damage, liability, or action covered by
the provisions of subparagraph (i) above; provided, however, that the
Corporation will not be liable in any such case if and to the extent that
any such loss, claim, damage, or liability arises out of or is based upon
an untrue statement or alleged untrue statement or omission or alleged
omission so made in conformity with information furnished by any such
Shareholder in writing specifically for use in such registration statement,
prospectus, or amendment thereof;
(iii) such Shareholder will indemnify and hold harmless the
Corporation, each other Shareholder participating in the Registration, each
officer of the Corporation who signs the registration statement, and each
director of the Corporation against all losses, claims, damages, or
liabilities, joint or several, to which the Corporation or such other
Shareholder, officer, or director may become subject under the Securities
Act or otherwise, insofar as such losses, claims, damages, or liabilities
(or actions in respect thereof):
(A) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact relating to such
Shareholder and contained in (1) the registration statement under
which such Restricted Stock was registered under the Securities Act,
(2) the final prospectus therefor, or (3) any amendment or supplement
thereof, or
(B) arise out of or are based upon the omission or alleged
omission to state therein a material fact relating to such Shareholder
that is (1) required to be stated therein, or (2) necessary to make
the statements therein not misleading; and
(iv) such Shareholder will reimburse the Corporation and each other
Shareholder, officer, and director for any legal or other expenses
reasonably incurred by them in connection with investigating or defending
any such loss, claim, damage, liability, or action; provided, however, that
such Shareholder will not be liable in any such case if and to the extent
that any such loss, claim, damage, or liability arises out of or is based
upon an untrue statement or alleged untrue statement or omission or alleged
omission made notwithstanding the Corporation's prior receipt of a written
notice from such Shareholder of the error in the statement or of the
omission.
(e) In connection with any Registration where shares Stock of a
Shareholder are also registered pursuant to the provisions of this Section, such
Shareholder will cooperate with the Corporation and each underwriter (if the
method of disposition
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shall be an underwritten public offering) and will take all such actions and
execute and deliver all such instruments, agreements, and documents as the
Corporation or any such underwriter reasonably may request, including, but not
limited to:
(i) furnishing to the Corporation in writing such information with
respect to such Shareholder and the proposed distribution by him as
reasonably shall be necessary in order to assure compliance with federal
and applicable state securities laws, and
(ii) immediately notifying the Corporation, each other Shareholder
participating in the Registration, and the managing underwriter (if the
method of disposition shall be an underwritten public offering), at any
time when a prospectus relating to such Registration is required to be
delivered under the Securities Act, of the happening of any event of which
such Shareholder has knowledge as a result of which the prospectus
contained in such registration statement, as then in effect, includes an
untrue statement of a material fact or omits to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading in light of the circumstances then existing.
(f) The rights set forth in this Section 2 are personal to each
Shareholder and may be exercised by such Shareholder only while such Shareholder
or such Shareholder's Related Transferee(s) owns Stock of the Corporation.
(g) For purposes of effecting the rights granted to the Shareholders
pursuant to this Section 2, a Shareholder who is a Related Transferee of another
Shareholder (a "Transferor Shareholder") shall, to the extent of the shares of
Stock transferred by the Transferor Shareholder to such Related Transferee (the
"Previously Transferred Shares"), be deemed to be the Transferor Shareholder.
In particular, with respect to the limitation on the number of shares of Stock
which the Transferor Shareholder and such Related Transferee may include in the
Registration under this Section 2, the Previously Transferred Shares shall be
considered to be owned by the Transferor Shareholder. Unless otherwise agreed
between the Transferor Shareholder and such Related Transferee, any permitted
inclusion in the Registration of some, but not all, of the shares of Stock owned
by the Transferor Shareholder and of the Previously Transferred Shares shall be
allocated between the Transferor Shareholder and such Related Transferee pro
rata based on the respective number of such shares of Stock owned by the
Transferor Shareholder and of such Previously Transferred Shares.
3. Take-Along Rights. The rights set forth in this Section 3 are given
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to each of the Shareholders:
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(a) If any Shareholder (the "Selling Shareholder") shall propose to
transfer (a "Proposed Transfer") to any person (the "Proposed Transferee"),
other than (1) another Shareholder, (2) a Related Transferee, or (3) the
Corporation, any shares of Stock (including any shares issued as the result of
the exercise of warrants therefor) (the "Transfer Shares"), then each remaining
Shareholder (subject to the provisions of subsection (f) below governing Related
Transferees) shall have:
(i) the right to transfer, in place of certain of the Transfer
Shares, such number of such remaining Shareholder's shares of Stock
(including any shares issued as the result of the exercise of warrants
therefor) as is equal to the following percentage ("Percentage") of the
number of Transfer Shares:
(A) for XxXxxx, 25.9537%,
(B) for Xxxxxx, 25.9537%,
(C) for X'Xxxxx, 25.9537%,
(D) for Xxx Xxxxx, 6.6022%,
(E) for Xxxxxx Xxxxx, 6.6022%, and
(F) for each New Shareholder, .0535% for each Unit (as defined
in the Stock Purchase Agreement) purchased pursuant to the
Stock Purchase Agreement; or
(ii) if the Proposed Transferee is unwilling to purchase shares of any
remaining Shareholder as part of the Proposed Transfer, then the right to
have the Selling Shareholder purchase, out of the proceeds of the sale of
the Transfer Shares to the Proposed Transferee, such number of such
remaining Shareholder's shares of Stock (including any shares issued as the
result of the exercise of warrants therefor) as is equal to his Percentage
of the number of Transfer Shares;
all upon and subject to the additional terms and conditions set forth in this
Section. Transfers of shares of Stock between Shareholders shall not be subject
to the provisions of this Section.
(b) In the event of a Proposed Transfer, the Selling Shareholder shall
give written notice (the "Transfer Notice") to the remaining Shareholder(s) of
the Proposed Transfer, including the number of shares of Stock proposed to be
transferred, the price and general terms and conditions governing the Proposed
Transfer, and the identity of the Proposed Transferee.
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(c) Upon receipt of the Transfer Notice, each remaining Shareholder shall
be entitled to exercise his rights under subsection (a) above by giving the
Selling Shareholder written notice (the "Participation Notice") thereof within
thirty (30) days following his receipt of the Transfer Notice. If no such
Participation Notice is given by such remaining Shareholder, then his rights
under subsection (a) above shall automatically terminate with respect to the
Proposed Transfer.
(d) In the event that any remaining Shareholder exercises his rights under
subsection (a) above, then any transfer of shares of Stock by such remaining
Shareholder shall be subject to the same terms and conditions that govern the
Selling Shareholder under the Proposed Transfer.
(e) The rights of any Shareholder under this Section may be waived as to
any Proposed Transfer by his delivering a writing to that effect to the
Corporation and the other Shareholders.
(f) For purposes of effecting the rights granted to the Shareholders
pursuant to this Section 3, a Shareholder who is a Related Transferee of another
Shareholder (a "Transferor Shareholder") shall, to the extent of the shares of
Stock transferred by the Transferor Shareholder to such Related Transferee (the
"Previously Transferred Shares"), be deemed to be the Transferor Shareholder.
In particular, with respect to the limitation on the number of shares of Stock
which the Transferor Shareholder and such Related Transferee may include in the
Proposed Transfer under this Section 3, the Previously Transferred Shares shall
be considered to be owned by the Transferor Shareholder. Unless otherwise
agreed between the Transferor Shareholder and such Related Transferee, any
permitted inclusion in the Proposed Transfer of some, but not all, of the shares
of Stock owned by the Transferor Shareholder and of the Previously Transferred
Shares shall be allocated between the Transferor Shareholder and such Related
Transferee pro rata based on the respective number of such shares of Stock owned
by the Transferor Shareholder and of such Previously Transferred Shares.
4. Redemption Option. The rights set forth in this Section 4 are given
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to Xxx Xxxxx, Xxxxxx Xxxxx, and the New Shareholders only (collectively, the
"Redeeming Shareholders"), and not to McGurl, Loomis, or X'Xxxxx:
(a) Each of the Redeeming Shareholders, or their Related Transferees, as
the case may be, shall have the right, at any time after June 29, 1995, to have
all, but not less than all, of such Redeeming Shareholder's respective shares of
Purchase Stock [as defined in subsection (d) below] redeemed by the Corporation
by delivering written notice requesting the same to the Corporation at least
thirty (30) days prior to the date upon which such redemption is being requested
(the "Redemption Date").
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(b) The redemption price to be paid by the Corporation for any Purchase
Stock shall be Three Dollars ($3.00) per share, together with accrued interest
thereon from the date on which such Redeeming Shareholder purchased such
Purchase Stock (the "Purchase Date") to the Redemption Date at a variable rate
which shall be the "Base Rate" (or its equivalent) of the Bank of Boston,
Boston, Massachusetts, as in effect on each annual anniversary of the Purchase
Date (each such date being hereinafter referred to as an "Anniversary Date"),
which interest shall accrue at such rate for the annual period then ending and
be compounded annually upon each such Anniversary Date, and said interest rate
to be set with respect to any portion of any annual period in which a redemption
of Purchase Stock occurs hereunder as of the Redemption Date.
(c) The redemption price shall be payable in cash to a Redeeming
Shareholder on the Redemption Date.
(d) The term "Purchase Stock" as used in this Agreement shall mean the
Stock purchased by a Redeeming Shareholder pursuant to his Stock Purchase
Agreement, whether then held by such Redeeming Shareholder, or his Related
Transferees, as the case may be, increased or decreased by any stock dividend,
subdivision, or combination, but not including any stock purchased pursuant to
warrants for any Stock of the Corporation.
5. Demand Registration Rights. The rights set forth in this Section 5
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are given to the New Shareholders only, and not to the Existing Shareholders:
5.1. Definitions. As used in this Section, the following terms shall have
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the following meanings:
(a) "Registrable Securities" shall mean shares of Stock owned by a New
Shareholder.
(b) "Registration Expenses" shall mean all expenses incurred by the
Corporation in registering any Registrable Securities under applicable federal
and state securities laws in accordance with the provisions of this Section 5
(including all registration and filing fees, printing expenses, fees and
disbursements of counsel and independent public accountants for the Corporation,
fees and expenses (including counsel fees) incurred in connection with complying
with state securities or "blue sky" laws, fees of the National Association of
Securities Dealers, Inc., transfer taxes, fees of transfer agents and
registrars, and costs of insurance), but excluding any Selling Expenses.
(c) "Selling Expenses" shall mean all underwriting discounts and selling
commissions applicable to any sale of Registrable Securities.
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(d) "Commission" means the United States Securities and Exchange
Commission, or any other federal agency at the time administering the Securities
Act.
(e) "Securities Act" shall mean the United States Securities Act of 1933,
as amended, and the rules and regulations of the Commission thereunder.
5.2. Request for Registration.
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(a) At any time after six (6) months following any registration statement
covering a public offering of securities of the Corporation under the Securities
Act, the holders of Registrable Securities which both:
(i) constitutes at least a majority of the total shares of
Registrable Securities then outstanding, and
(ii) is reasonably anticipated to sell to the public in a public
offering for an aggregate price at least equal to Two Million Dollars
($2,000,000.00),
may request the Corporation to register under the Securities Act (a "Demand
Registration") all of the shares of Registrable Securities held by such
requesting holder or holders (or such lesser portion of such shares of
Registrable Securities may be requested to be registered if the reasonably
anticipated aggregate price to the public of such public offering would be at
least Two Million Dollars ($2,000,000.00)).
(b) The request described in subsection (a) above shall be set forth in a
written notice (the "Demand Registration Notice") given by the requesting holder
or holders to the Corporation. The Demand Registration Notice shall specify the
number of shares of Registrable Securities requested to be registered (the
"Requested Shares") and the manner in which the Requested Shares are to be sold.
(c) Following its receipt of any Demand Registration Notice, the
Corporation shall immediately notify (the "Participation Notice") all non-
requesting holders of Registrable Securities that the Corporation has received
the Demand Registration Notice, and a copy of the Demand Registration Notice
shall be included with the Participation Notice. Each such non-requesting
holder shall be entitled to include in the Demand Registration, for sale in
accordance with the method of disposition specified in the Demand Registration
Notice, all or any lesser portion of the shares of Registrable Securities of
such holder by giving the Corporation, within fifteen (15) days following the
giving of the Participation Notice, written notice of such holder's election to
participate in the Demand Registration (including a statement of the number of
Registrable Securities of such holder which should be included in the Demand
Registration).
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(d) The Corporation shall use its best efforts to register under the
Securities Act, and to qualify under such state securities laws as the
requesting holders may reasonably request, for public sale in accordance with
the method of disposition specified in the Demand Registration Notice, the
number of shares of Registrable Securities specified in the Demand Registration
Notice (and, in all notices received by the Corporation from the other non-
requesting holders, within fifteen (15) days after the giving of the
Participation Notice); provided, however, that the Corporation shall not be
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obligated to take any action to effect any such registration pursuant to this
Section 5.2 in any particular jurisdiction in which the Corporation would be
required to (a) qualify generally to transact business as a foreign corporation
in such jurisdiction if it is not so qualified, or (b) execute a general consent
to service of process in effecting such registration unless the Corporation is
already subject to service in such jurisdiction and except as may be required by
the Securities Act.
(e) The following provisions shall be applicable if the requested method
of disposition shall be an underwritten public offering:
(i) The Corporation shall designate the managing underwriter for
the offering, subject to the approval of the holders of a majority of the
shares of Registrable Securities to be registered in the Demand
Registration (which approval shall not be unreasonably withheld or
delayed). In the event such managing underwriter is not so approved, the
Corporation shall designate another managing underwriter as soon as
practicable.
(ii) The right of any holder to registration pursuant to this
Section 5.2 shall be conditioned upon such holder's participation in such
underwriting and the inclusion of such holder's Registrable Securities in
the underwriting to the extent requested (unless otherwise mutually agreed
by a majority in interest of the holders, to the extent provided herein).
The Corporation shall (together with all holders proposing to distribute
their securities through such underwriting) enter into an underwriting
agreement in customary form with the managing underwriter.
(iii) Notwithstanding any other provision of this Section 5.2 to the
contrary, if the managing underwriter advises the Corporation in writing
that marketing factors require a limitation of the number of shares to be
underwritten, then the number of shares that may be included in the
registration and underwriting shall be allocated among all holders
requesting inclusion in the registration in proportion, as nearly as
practicable, to the respective amounts of Registrable Securities held by
such holders at the time of the filing of the registration statement. No
Registrable Securities excluded from the underwriting by reason of the
managing underwriter's marketing limitation shall be included in such
registration.
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(iv) If any holder of Registrable Securities disapproves of the
terms of the underwriting, such person may elect to withdraw therefrom by
written notice to the Corporation, the managing underwriter, and the other
holders. The Registrable Securities so withdrawn shall also be withdrawn
from registration; provided, however, that if by the withdrawal of such
Registrable Securities a greater number of Registrable Securities held by
other holders may be included in such registration (up to the maximum of
any limitation imposed by the managing underwriter), then the Corporation
shall offer to all holders who have included Registrable Securities in the
registration the right to include additional Registrable Securities in the
same proportion used in determining the underwriter limitation in this
Section 5.2(e). If the registration does not become effective due to the
withdrawal of Registrable Securities, then either (A) the holders
requesting registration shall reimburse the Corporation for expenses
incurred in complying with the request, or (B) the aborted registration
shall be treated as effected for purposes of Section 5.2(h) below.
(f) The Corporation shall be entitled to include in the Demand
Registration, for sale in accordance with the method of disposition specified in
the Demand Registration Notice, both:
(i) shares of Stock to be sold by the Corporation for its own
account, and
(ii) shares of Stock owned by any other stockholder or stockholders
of the Corporation, except that the number of shares of Stock to be
included by any such other stockholder shall not exceed two percent (2%) of
the then outstanding shares of Stock;
provided, however, that, if in the opinion of the managing underwriter (if such
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method of disposition involves, in whole or in part, an underwritten public
offering), the inclusion of such shares of Stock in the underwriting would have
a material adverse effect on the marketing of the Registrable Securities to be
sold thereby, then the number of such shares of Stock of the Corporation to be
included in the underwriting shall be reduced to such extent (including the
possible exclusion of all of such shares) as the managing underwriter determines
will no longer have a material adverse effect on the marketing of the
Registrable Securities to be sold thereby.
(g) In the case of each registration effected by the Corporation pursuant
to this Section 5.2, the Corporation will keep each holder advised in writing as
to the initiation of each registration and as to the completion thereof. At its
expense the Corporation will:
-13-
(i) keep such registration effective for a period of one hundred
twenty (120) days or until the holder or holders have completed the
distribution described in the registration statement relating thereto,
whichever first occurs; and
(ii) furnish such number of prospectuses and other documents
incident thereto as a holder from time to time may reasonably request.
(h) Notwithstanding anything to the contrary contained in this Section
5.2:
(i) no Demand Registration Notice may be given within one (1) year
after the effective date of a registration statement filed by the
Corporation covering an underwritten public offering in which the holders
of Registrable Securities shall have been entitled to join pursuant to
Section 2 above and in which there shall have been effectively registered
all shares of Registrable Securities as to which registration shall have
been requested; and
(ii) the Corporation shall be obligated to register Registrable
Securities pursuant to this Section 5.2 on two (2) occasions only;
provided, however, that such obligation shall be deemed satisfied only when
a registration statement covering all shares of Registrable Securities
specified in notices received as aforesaid, for sale in accordance with the
method of disposition specified in the Demand Registration Notice, shall
have become effective.
5.3. Expenses of Registration. All Registration Expenses incurred in
------------------------
connection with any registration pursuant to Section 5.2 above shall be borne by
the Corporation. All Selling Expenses relating to the shares of Stock so
registered by the holders shall be borne by the holders of such shares pro rata
based on the number of shares so registered.
5.4. Registration on Form S-3.
------------------------
(a) In addition to the rights set forth in Section 5.2 above, if a holder
or holders request by written notice to the Corporation that the Corporation
file a registration statement on Form S-3 (or any successor thereto) for a
public offering of shares of the Registrable Securities the reasonably
anticipated aggregate price to the public of which would exceed One Million
Dollars ($1,000,000.00), and the Corporation is a registrant entitled to use
Form S-3 to register securities for such an offering, the Corporation shall use
its best efforts to cause such shares to be registered for the offering on such
form (or any successor thereto).
(b) All Registration and Selling Expenses incurred in connection with a
registration pursuant to this Section 5.4 shall be borne by the holder or
holders
-14-
participating in the registration on Form S-3 pro rata according to the number
of Registrable Securities so registered.
(c) Notwithstanding anything to the contrary set forth in this Section
5.4, the Corporation shall be obligated to register Registrable Securities
pursuant to this Section 5.4 on two (2) occasions only; provided, however, that
-------- -------
such obligation shall be deemed satisfied only when a registration statement
covering all shares of Registrable Securities specified in the notice(s)
received as aforesaid, for sale in accordance with the method of disposition
specified in the Demand Registration Notice, shall have become effective.
5.5. Termination of Registration Rights. The registration rights granted
----------------------------------
pursuant to this Agreement shall terminate as to each New Shareholder at such
time as all Registrable Securities held by such New Shareholder can be sold
within a given three-month period without compliance with the registration
requirements of the Securities Act pursuant to Rule 144 or other applicable
exemption supported by a written opinion of legal counsel for the Corporation
which shall be reasonably satisfactory in form and substance to legal counsel
for such New Shareholder.
6. Voting Agreement.
----------------
(a) Each of the Shareholders hereby agrees and consents for himself and
his Related Transferees to vote all shares of the voting Stock of the
Corporation as may from time to time be owned by him or his Related Transferees
for the election and re-election of the following individuals as members of the
Board of Directors of the Corporation (the "Board"):
(i) XxXxxx;
(ii) Xxxxxx;
(iii) X'Xxxxx; and
(iv) one of either Xxx Xxxxx or Xxxxxx Xxxxx.
The foregoing voting agreement shall pertain to all shares of Stock of each of
the Shareholders, whether held in the name of such Shareholder or held in the
name of or for the benefit of any Related Transferee of such Shareholder.
(b) Each of the Existing Shareholders agrees that his right to be elected
to the Board pursuant to the voting agreement in subsection (a) above will
terminate as to such Shareholder and that he will be deemed to have resigned and
will cease to be a member of the Board in the event that:
-15-
(i) in the case of either McGurl, Loomis, or X'Xxxxx, he and his
respective Related Transferees, do not own in the aggregate two hundred
thousand (200,000) shares of the Stock (subject to adjustment in the event
of any stock dividend, subdivision, or combination affecting all of the
outstanding Stock of the Corporation); or
(ii) in the case of Xxx Xxxxx and Xxxxxx Xxxxx, they and their
Related Transferees, do not own in the aggregate one hundred thousand
(100,000) shares of the Stock (subject to adjustment in the event of any
stock dividend, subdivision, or combination affecting all of the
outstanding Stock of the Corporation).
(c) The provisions of this Section 5 shall in no manner be deemed to limit
the right of the Shareholders of the Corporation to increase the number of
members of the Board at any time hereafter. Notwithstanding any increase of the
number of members of the Board at any time during which X'Xxxxx and Xxx and
Xxxxxx Xxxxx have the right to be elected as members of the Board of Directors
pursuant to subsections (a) and (b) above, the Shareholders agree that no
increase in the salary or compensation of either XxXxxx and/or Xxxxxx, nor any
capital expenditure by the Corporation in excess of Twenty-five Thousand Dollars
($25,000.00), may be authorized by the Board without the affirmative vote of one
of either:
(i) X'Xxxxx;
(ii) Xxx or Xxxxxx Xxxxx (whoever is then serving on the
Corporation's Board of Directors); or
(iii) a representative appointed by the New Shareholders, who, until
changed by the New Shareholders with notice to the Corporation, shall be
Xxxxxxxxx & Xxxxx Venture Investors, L.P.
7. Stock Transfer Restrictions. The Corporation and each of the
---------------------------
Shareholders agree that neither the Articles nor the Bylaws will be amended to
restrict the transferability of any share of Stock owned by any Shareholder
unless such Shareholder agrees in writing to the restriction; provided, that the
foregoing shall not prohibit such an amendment which refers to restrictions
under applicable law (e.g., compliance with federal and state securities laws,
rules, and regulations).
8. Miscellaneous Provisions.
------------------------
(a) Amendment. This Agreement may not be amended, in whole or in part,
---------
except by an instrument in writing signed by each of the parties hereto;
provided, that with respect to an amendment affecting the rights of the New
Shareholders (including their Related Transferees), an instrument in writing
signed
-16-
by two-thirds (2/3) or more in interest of the New Shareholders or their Related
Transferees shall be binding on all of the New Shareholders (including their
Related Transferees).
(b) Binding Effect. This Agreement shall be binding on and for the benefit
--------------
of the parties hereto and their respective heirs, personal and legal
representatives, successors, and assigns; provided, that no Shareholder shall be
entitled to assign or delegate any of his rights or obligations under this
Agreement without the prior written consent of the Corporation.
(c) Counterparts. This Agreement may be executed in one or more
------------
counterpart copies, each of which shall be deemed to be an original, but all of
which together shall constitute one and the same instrument.
(d) Entire Agreement. Any oral or written statements, understandings,
----------------
correspondence, or agreements previously made by any party with respect to the
subject matter of this Agreement are superseded by this Agreement, which alone
fully and completely expresses the parties' respective obligations. This
Agreement is entered into by each party after opportunity for investigation, and
each party represents that such party is not relying upon any statements,
understandings, correspondence, or agreements not embodied in this Agreement and
made by any other party or on any other party's behalf. Without limiting the
generality of the foregoing, the provisions of this Agreement specifically
supersede (i) the provisions of the Existing Stock Rights Agreement, and (ii)
the provisions of Sections 8, 10.1, 10.2, 10.4 and 10.6 of that certain Stock
Purchase Agreement dated September 27, 1989 (the "X'Xxxxx Stock Purchase
Agreement") between the Corporation, McGurl, Loomis, and X'Xxxxx (which
provisions were declared to be null and void and of no further force or effect
pursuant to the Existing Stock Rights Agreement). It is acknowledged that the
remaining provisions of the X'Xxxxx Stock Purchase Agreement shall continue in
full force and effect (including, but not limited to, Section 10.3 thereof).
(e) Governing Law; Jurisdiction. This Agreement and all rights, remedies,
---------------------------
and obligations under this Agreement, including matters of construction,
validity, and performance, shall be governed exclusively by the laws of the
State of New Hampshire. This Agreement shall be enforceable in any state or
federal court of competent jurisdiction; provided, that each party specifically
consents to, and agrees that such party is subject to, the jurisdiction of the
state and federal courts of the State of New Hampshire with respect to any
actions for enforcement of or breach of this Agreement.
(f) Headings. The article, section, and subsection headings used in this
--------
Agreement are for convenience and reference only, and the words contained
therein
-17-
shall not be held to explain, modify, amplify, or aid in the interpretation,
construction, or meaning of any of the provisions of this Agreement.
(g) Notices. Any demand, notice, or other communication required or
-------
permitted to be given by a party under this Agreement shall be in writing and,
with respect to each other party to whom the demand, notice, or other
communication is to be given, shall be given to such party either:
(i) by being hand-delivered to such party,
(ii) by being telecopied to such party's Telecopy Number (as defined
below), with a copy of the telecopy being mailed by first class mail,
postage prepaid, to such party's Address (as defined below), or
(iii) by being deposited in the mail (registered or certified) or
delivered to a private express company, postage or freight prepaid, return
receipt requested, addressed to such party at such party's Address.
As used in this Section, a party's "Address" shall mean the address of such
party set forth in this Agreement underneath such party's signature line, and a
party's a "Telecopy Number" shall mean the telephone number of such party set
forth in this Agreement underneath such party's signature line. Each party may
change such party's Address or Telecopy Number from time to time by giving the
other party or parties notice of the change in accordance with the provisions of
this Section.
(h) Severability. Each term, condition, and provision of this Agreement
------------
shall be valid and enforced to the fullest extent permitted by law. If there is
any conflict between any term, condition, or provision of this Agreement and any
statute, law, ordinance, order, rule, or regulation, the latter shall prevail;
provided, that any such conflicting term, condition, or provision shall be
curtailed and limited only to the extent necessary to bring it within the legal
requirements and the remainder of this Agreement shall not be affected thereby.
(i) Waiver. No waiver by any party of any breach or default by any other
------
party of any of such other party's obligations under this Agreement shall be
deemed to be a waiver of any other breach or default of the same or any other
nature. No failure by any party on any one or more occasions to exercise any
right or remedy provided in this Agreement shall preclude the exercise of such
right or remedy on any other occasion.
(j) Pronouns; Plurals. All pronouns and any variations thereof shall be
-----------------
deemed to include the masculine, feminine, neuter, singular, and plural thereof
as the context may require. In addition, all nouns shall be deemed to include
the singular and plural thereof as the context may require.
-18-
9. Additional Parties. The parties hereto acknowledge that, effective as
------------------
of the Effective Date, the Corporation has issued certain warrants to third
parties and that, in the warrant purchase agreements for said warrants, the
Corporation and each such third party warrantholder have agreed that such third
party warrantholder will, without further action, become a party to this
Agreement as a New Shareholder upon exercise of the such warrant. Each of the
Shareholders hereby consents to such third party warrantholders so becoming a
New Shareholders for purposes of this Agreement.
IN WITNESS WHEREOF, the undersigned have executed this Agreement all as of
the date first above-written.
Corporation:
-----------
Bottomline Technologies, Inc.
/s/ By: /s/ Xxxxx Xxxxxx
------------------------ -------------------------------
Witness Xxxxx Xxxxxx, Vice President
Address: Xxx Xxxxx Xxxxxx
Xxxxxx, Xxx Xxxxxxxxx 00000
Telecopy Number: 000-000-0000
Holder:
------
/s/ /s/ Xxx XxXxxx
---------------------- ---------------------------------
Witness Signature
Name: Xxx XxXxxx
---------------------------------
Address: 000 Xxxxxxxxx Xxx
---------------------------------
Xxxx, XX 00000
---------------------------------
Telecopy Number: (000) 000-0000
---------------------------------
-19-
Holder:
------
/s/ /s/ Xxxxx X. Xxxxxx
---------------------- ---------------------------------
Witness Signature
Name: Xxxxx X. Xxxxxx
---------------------------------
Address: 00 Xxxxxxx Xxxx
---------------------------------
Xxxxxxx, XX 00000
---------------------------------
Telecopy Number: (000) 000-0000
---------------------------------
Holder:
------
/s/ Xxxxxx X. Xxxxx, Xx.
_______________________ ---------------------------------
Witness Signature
Name: Xxxxxx X. Xxxxx, Xx.
---------------------------------
Address: 000 Xxxxx Xxx
---------------------------------
Xxxxxxxxxxxx, XX 00000
---------------------------------
Telecopy Number: (000) 000-0000
---------------------------------
Holder:
------
/s/ /s/ Xxxxxx X. Xxxxx, Xx.
----------------------- ---------------------------------
Witness Signature
Name: Xxxxxx X. Xxxxx, Xx.
---------------------------------
Address: 000 Xxxxxxx Xxxxxx
---------------------------------
Xxxxxxxxx, XX 00000
---------------------------------
Telecopy Number: (000) 000-0000
---------------------------------
-20-
Holder:
------
/s/ /s/
----------------------- ---------------------------------
Witness Signature
Name: Hambrect & Xxxxx Venture
---------------------------------
Investors L.P.
---------------------------------
Address: Xxx Xxxx Xxxxxx
---------------------------------
Xxx Xxxxxxxxx, XX 00000
---------------------------------
Telecopy Number: 000-000-0000
---------------------------------
Holder:
------
/s/
----------------------- _________________________________
Witness Signature
Name: Xx. Xxxxxx X. Case III
---------------------------------
Address: Xxxxxxxxx & Xxxxx
---------------------------------
Xxx Xxxx Xxxxxx
---------------------------------
Xxx Xxxxxxxxx, XX 00000
---------------------------------
Telecopy Number: 000-000-0000
---------------------------------
-21-
Holder:
------
/s/ /s/ Xxxxxx X. Case, Sr.
------------------------ ---------------------------------
Witness Xxxxxx X. Case, Sr.
/s/ /s/ Xxxxx X. Case
----------------------- ---------------------------------
Witness Xxxxx X. Case
Name: Xxxxxx X. Case, Sr. and
Xxxxx X. Case, as JTWROS
Address: 000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxx, XX 00000
Telecopy Number: (000) 000-0000
Number of Units:
Purchase Price:
Holder:
------
/s/ Xxxxxx X. Xxxxxxxxx,Xx.
_______________________ ---------------------------------
Witness Signature
Name: Case Children's 1991 Irrevocable
---------------------------------
Trust, Xxxxxx X. Xxxxxxxxx, Xx.,
---------------------------------
Trustee
---------------------------------
Address: Xxxxxxxxx & Xxxxx
---------------------------------
Xxx Xxxx Xxxxxx
---------------------------------
Xxx Xxxxxxxxx, XX 00000
---------------------------------
Telecopy Number: 000-000-0000
---------------------------------
-22-
Holder:
------
/s/ /s/ Xxxxxx X. Xxxxxxxxx, Xx.
---------------------- ---------------------------------
Witness Signature
Name: Lionl X. Xxxxxxxxx, Xx.
---------------------------------
Address: Xxxxxxxxx & Xxxxx
---------------------------------
Xxx Xxxx Xxxxxx
---------------------------------
Xxx Xxxxxxxxx, XX 00000
---------------------------------
Telecopy Number: 000-000-0000
---------------------------------
Holder:
------
/s/ /s/ Xxxxxxx X. Xxxxxx
----------------------- ---------------------------------
Witness Signature
Name: Xxxxxxx X. Xxxxxx
---------------------------------
Address: Xxx Xxxx Xxxxxx
---------------------------------
Xxx Xxxxxxxxx, XX 00000
---------------------------------
Telecopy Number: 000-000-0000
---------------------------------
Holder:
------
/s/ /s/ Xxxxxx or Xxxxxx Xxxx
----------------------- ---------------------------------
Witness Signature
Name: Xxxxxx or Xxxxxx Xxxx Trustees
---------------------------------
Address: 00000 Xxxxx Xxxxxxxx
---------------------------------
Xxxxxxxx, XX 00000
---------------------------------
Telecopy Number: _________________________________
-23-
Holder:
------
/s/ Xxxxxxxx Xxxxxxxx /s/ Xxxx Xxxxxxx
----------------------- ---------------------------------
Witness Signature
Name: Xxxx Xxxxxxx
---------------------------------
Address: 0 Xxxxxxxx Xxxxxx
---------------------------------
Xxxxxx, XX 00000
---------------------------------
Telecopy Number: _________________________________
Holder:
------
/s/ /s/ Xxxxx Xxxxx
----------------------- ---------------------------------
Witness Signature
Name: Mr. Xxxxx Xxxxx
---------------------------------
Address: 0000 Xxxxx 00x Xxxxxx
---------------------------------
Xxxxx, XX 00000
---------------------------------
Telecopy Number: 000-000-0000
---------------------------------
Holder:
------
/s/ /s/ Xxxx Xxxxxxxxxx
----------------------- ---------------------------------
Witness Signature
Name: Xxxx Xxxxxxxxxx
---------------------------------
Address: 0000 Xxxxx 00x Xxxxxx
---------------------------------
Xxxxx, XX 00000
---------------------------------
Telecopy Number: _________________________________
-24-
Holder:
------
/s/ /s/ Xxxxxx X. Xxxxxxx,
----------------------- ---------------------------------
Witness Signature
Name: Venhill Limited Partnership
---------------------------------
Address: 000 Xxxx Xxxxxx
---------------------------------
Xxx Xxxxxx, XX 00000
---------------------------------
Telecopy Number: 000-000-0000
---------------------------------
Holder:
------
/s/ /s/ Xxxxxx Xxxxx
---------------------- ---------------------------------
Witness Signature
Name: Xx. Xxxxxx X. Xxxxx
---------------------------------
Address: 000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
---------------------------------
Xxx Xxxxxxxxx, XX 00000
---------------------------------
Telecopy Number: _________________________________
Holder:
------
/s/ /s/ Xxxxxxx X. Xxxxxx
----------------------- ---------------------------------
Witness Signature
Name: Xxxxxxx X. Xxxxxx
---------------------------------
Address: 0 Xxxxx Xxxxxx
---------------------------------
Xxx Xxxx, XX 00000
---------------------------------
Telecopy Number: 000-000-0000
---------------------------------
-25-
Holder:
------
/s/ /s/ Xxxxxxxxx X. Xxxxxx, Xx.
----------------------- ---------------------------------
Witness Signature
Name: Xx. Xxxxxxxxx X. Xxxxxx, Xx.
---------------------------------
Address: 000 Xxxxx Xxx
---------------------------------
Xxxxxxxxxxxx, XX 00000
---------------------------------
Telecopy Number: _________________________________
Holder:
------
/s/ /s/ Xxxxxxx X. Xxxxx
----------------------- ---------------------------------
Witness Signature
Name: Xx. Xxxxxxx X. Xxxxx
---------------------------------
Address: University of Rochester
---------------------------------
Xxxxxxxxx, XX 00000
---------------------------------
Telecopy Number: _________________________________
-26-
EXHIBIT A
TO
FIRST AMENDMENT AND RESTATEMENT
OF
BOTTOMLINE TECHNOLOGIES, INC.
STOCK RIGHTS AND VOTING AGREEMENT
Shareholders
------------
Existing Shareholders:
---------------------
Xxxxxx XxXxxx
Xxxxx Xxxxxx
Xxxxxxx X. O'Xxxxx
Xxxxxx Xxx Xxxxx, Xx.
Xxxxxx X. Xxxxx
New Shareholders:
----------------
Xxxxxxxxx & Xxxxx Venture Investors, L.P.
Xxxxxx X. Case III
Xxxxxx X. Case and Xxxxx X. Case, as JTWROS
Case Children's 1991 Irrevocable Trust,
Xxxxxx X. Xxxxxxxxx, Xx., Trustee
Xxxxxx X. Xxxxxxxxx, Xx.
Xxxxxxx X. Xxxxxx
The Wellington Trust under trust
agreement dated 1/30/86, Xxxxxx
or Xxxxxx Xxxx, Trustees
Xxxx Xxxxxxx
Xxxxx Xxxxx
Xxx Xxxxxxxxxx
Venhill Limited Partnership
Xxxxxx X. Xxxxx
Xxxxxxx X. Xxxxxx
Xxxxxxxxx X. Xxxxxx, Xx.
Xxxxxxx X. Xxxxx
-27-
AMENDMENT TO
THE FIRST AMENDMENT AND RESTATEMENT
OF BOTTOMLINE TECHNOLOGIES, INC.
STOCK RIGHTS AND VOTING AGREEMENT
WHEREAS, the undersigned is a Shareholder, as defined in the First
Amendment and Restatement of Bottomline Technologies, Inc. Stock Rights and
Voting Agreement, dated as of March 31, 1992 (the "Stock Rights and Voting
Agreement"); and
WHEREAS, Xxxxxxx X. X'Xxxxx ("X'Xxxxx"), also a Shareholder as
defined in the stock Rights and Voting Agreement, desires to sell up to 25,000
shares of Common Stock (the "Stock") of Bottomline Technologies, Inc. (the
"Company") to Xxxx X. Xxxxxxx Company ("Xxxxxxx"); and
WHEREAS, such sale by X'Xxxxx to Xxxxxxx would result in X'Xxxxx owning
less than 200,000 shares of Stock;
NOW THEREFORE, the undersigned Shareholder hereby agrees to amend Section
6(b) of the Stock Rights and Voting Agreement to delete the following:
"(i) in the case of either McGurl, Loomis, or X'Xxxxx, he and his
respective Related Transferees, do not own in the aggregate two
hundred thousand (200,000) shares of the Stock (subject to adjustment
in the event of any stock dividend, subdivision, or combination
affecting all of the outstanding Stock of the Corporation); or"
and to replace such subsection (i) of Section 6(b) with the following:
"(i) in the case of: (A) either XxXxxx or Xxxxxx, he and his
respective Related Transferees, do not own in the aggregate two
hundred thousand (200,000) shares of the Stock (B) X'Xxxxx, he and his
respective Related Transferees do not own in the aggregate one hundred
eighty five thousand (185,000) shares of the Stock (subject to
adjustment in the event of any stock dividend, subdivision, or
combination affecting all of the outstanding Stock of the
Corporation); or"
-1-
WAIVER AND AMENDMENT
WHEREAS, Xx. Xxxxxxx X. X'Xxxxx ("X'Xxxxx") has proposed to transfer 10,000
shares of common stock, $.001 par value per share (the "Transfer Shares") of
Bottomline Technologies, Inc. ("Bottomline") at a per share purchase price of
$14.75 (the "Sale") to Xx. Xxxxx X. Xxxxxxx ("Xxxxxxx"); and
WHEREAS, Bottomline and the undersigned Shareholder, as defined in the
First Amendment and Restatement of Bottomline Technologies, Inc. Stock Rights
and Voting Agreement, dated as of March 31, 1992, as amended, (the "Agreement")
believe it is in the best interest of Bottomline and the Shareholder to allow
X'Xxxxx to sell the Transfer Shares to Xxxxxxx and to amend the Agreement;
NOW THEREFORE:
1. The undersigned Shareholder hereby waives any and all Take-Along-
Rights which the undersigned may have with respect to the Transfer Shares
pursuant to Section 3 of the Agreement, provided such shares are sold only to
Xxxxxxx or his assigns and such sale is effected on or prior to October 1, 1996,
and the undersigned hereby waives any rights to notice with respect to such
transfer by X'Xxxxx.
2. Bottomline and the undersigned Shareholder hereby agree to amend
Section 3 of the Agreement to add the following as Subsection 3(g):
"(g) Notwithstanding any provision to the contrary, this Section 3 shall
not apply to the sale by X'Xxxxx of up to 10,000 shares of Common Stock of the
Corporation to Xx. Xxxxx Xxxxxxx or his assigns; provided such sale shall take
place on or prior to October 1, 1996."
3. Bottomline and the undersigned Shareholder hereby agree to amend
Section 3(a)(i)(C) of the Agreement, effective upon consummation of the Sale, to
change the percentage listed therein next to X'Xxxxx'x name from 25.9537% to
22.7095%.
4. Bottomline and the undersigned Shareholder hereby agree to amend and
restate Section 6 of the Agreement in its entirety, effective upon consummation
of the Sale, such that it shall read in its entirety as follows:
"6. Voting Agreement.
----------------
(a) Each of the Shareholders hereby agrees and consents for himself and
his Related Transferees to vote all shares of the voting Stock of the
Corporation as may be from time to time owned by him or his Related Transferees
for the election and re-
-1-
election of the following individuals as members of the Board of Directors of
the Corporation (the "Board"):
(i) XxXxxx;
(ii) Xxxxxx; and
(iii) one of either Xxx Xxxxx or Xxxxxx Xxxxx.
The foregoing voting agreement shall pertain to all shares of Stock of each of
the Shareholders, whether held in the name of such Shareholder or held in the
name or for the benefit of any Related Transferee of such Shareholder.
(b) Each of the Existing Shareholders agrees that his right to be elected
to the Board pursuant to the voting agreement in subsection (a) above will
terminate as to such Shareholder and that he will be deemed to have resigned and
will cease to be a member of the Board in the event that:
(i) in the case of either XxXxxx or Xxxxxx, he and his respective
Related Transferees, do not own in the aggregate two hundred thousand
(200,000) shares of the Stock (subject to adjustment in the event of any
stock dividend, subdivision, or combination affecting all of the
outstanding Stock of the Corporation); or
(ii) in the case of Xxx Xxxxx and Xxxxxx Xxxxx, they and their Related
Transferees, do not own in the aggregate one hundred thousand (100,000)
shares of the Stock (subject to adjustment in the event of any stock
dividend, subdivision, or combination affecting all of the outstanding
Stock of the Corporation).
(c) The provisions of this Section 5 shall in no manner be deemed to limit
the right of the Shareholders of the Corporation to increase the number of
members of the Board at any time hereafter. Notwithstanding any increase of the
number of members of the Board at any time during which Xxx and Xxxxxx Xxxxx
have the right to be elected as members of the Board of Directors pursuant to
subsections (a) and (b) above, the Shareholders agree that no increase in the
salary or compensation of either XxXxxx and/or Xxxxxx, nor any capital
expenditure by the Corporation in excess of Twenty-five Thousand Dollars
($25,000), may be authorized by the Board without the affirmative vote of one of
either:
(i) Xxx or Xxxxxx Xxxxx (whoever is then serving on the Corporation's
Board of Directors); or
-2-
(ii) a representative appointed by the New Shareholders, who, until
changed by the New Shareholders with notice to the Corporation, shall be
Xxxxxxxxx & Xxxxx Venture Investors, L.P."
Capitalized terms not otherwise defined herein have the respective meaning
ascribed to them in the Agreement.
This Waiver and Amendment may be signed in one or more counterparts.
IN WITNESS WHEREOF, this Waiver and Amendment has been executed by
Bottomline and the undersigned Shareholder on or before August 10, 1996 with the
intent that it become effective, except as otherwise provided herein, as of and
on August 10, 1996.
-3-
AMENDMENT NO.2
WHEREAS, Bottomline Technologies, Inc. a New Hampshire corporation (Bottom
line NH), and the undersigned are named parties to the First Amendment and
Restatement of Bottom line Technologies, Inc. Stock Rights and Voting Agreement,
dated as of March 31, 1992, as amended (the "Agreement"); and
WHEREAS, Bottom line NH was merged with and into Bottomline Technologies
(de), Inc., a Delaware corporation ("Bottomline DE"), on August 25, 1997 (the
"Merger"); and
WHEREAS, as a result of the Merger, Bottomline DE is a successor party to
the Agreement; and
WHEREAS, Xxxxxxx X. X'Xxxxx is proposing to sell 5,000 shares of common
stock, $.001 par value per share, of Bottomline DE to Xx. Xxxxxx X. Xxxxxx at a
per share purchase price of $24.00 (the "Sale"); and
WHEREAS, the parties to Agreement believe that it is in the best interest
of the parties thereto to make certain amendments to the Agreement;
NOW, THEREFORE, for good and valuable consideration, the sufficiency of
which is hereby acknowledged, the undersigned hereby agree to amend the
Agreement, in accordance with the provisions of Section 8(a) thereof, as set
forth below:
1. Commencing after the date of the Merger, all references to the
"Corporation" shall mean Bottom line DE.
2. Section 1(f)(1) is amended to read in its entirety as follows:
"(i) any Proposed Issuance of stock options under (A) the Stock Option
Plan or (B) any other stock option plan which is adopted at any time
after the Effective Date by the Board of Directors of the Corporation;
3. Section 3 is amended to add the following as Subsection 3(h):
"(h) Notwithstanding any provision to the contrary, this Section 3
shall not apply to the sale by X'Xxxxx of up to 5,000 shares of Common
Stock of the Corporation to Xx. Xxxxxx X. Xxxxxx or his assigns;"
-1-
4. To amend clauses (A) through (F) of Section 3(a)(i) of the Agreement,
effective upon consummation of the Sale as set forth below:
"(A) for XxXxxx, 27.3183%
(B) for Xxxxxx, 27.3183%
(C) for X'Xxxxx, 22.0606%
(D) for Xxx Xxxxx, 6.9493%
(E) for Xxxxxx Xxxxx, 6.9493%
(F) for each New Shareholder, .0563% for each Unit
(as defined in the Stock Purchase Agreement) purchased pursuant to
the Stock Purchase Agreement; or"
-2-
AMENDMENT NO. 3 TO THE FIRST AMENDMENT
AND RESTATEMENT OF BOTTOMLINE TECHNOLOGIES, INC.
STOCK RIGHTS AND VOTING AGREEMENT
AMENDMENT No. 3, dated as of the 12th day of October, 1998, to the First
Amendment and Restatement of Bottomline Technologies, Inc. Stock Rights and
Voting Agreement dated as of March 31, 1992 (the "Stock Rights Agreement") by
and between Bottomline Technologies (de), Inc., a Delaware corporation (formerly
Bottomline Technologies, Inc. (the "Company")) and the shareholders of the
Company listed on Exhibit A attached thereto (collectively, the "Holders").
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WHEREAS, the Company and the Holders are parties to the Stock Rights
Agreement;
WHEREAS, the Company and the Holders desire to amend the Stock Rights
Agreement so that the rights set forth in Section 1 of the Stock Rights
Agreement relating to "preemptive rights" shall not apply to the sale by the
Company of shares of common stock, $.001 par value per share ("Common Stock"),
to Xxxxxx Xxxxxxxx LLP;
WHEREAS, the Company and the Holders desire to amend the Stock Rights
Agreement so that the provisions set forth in Section 3 of the Stock Rights
Agreement relating to certain "take-along" rights shall not apply to a sale or
transfer of certain securities of the Company from Xxxxxxxxx & Xxxxx Liquidating
Trust to Xxxxxxxxx & Xxxxx California;
WHEREAS, the Holders, owning at least two-thirds (2/3) of the interests in
the Company held by all New Shareholders (as defined in the Stock Rights
Agreement) and each of the other parties to the Stock Rights Agreement, have
executed this Amendment No. 3.
NOW THEREFORE, the parties hereto, in consideration of the premises and the
agreements herein contained and intending to be legally bound hereby, agree as
follows:
1. Section 1 of the Stock Rights Agreement is hereby amended by adding the
following paragraph 1(i) to Section 1, which shall read as follows:
"(i) The rights set forth in this Section 1 shall not apply to the sale by
the Company occurring on or prior to November 30, 1998 of up to
35,715 shares of Stock to Xxxxxx Xxxxxxxx LLP at a sale price of at
least $28.00 per share."
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2. Section 3 of the Stock Rights Agreement is hereby amended by adding the
following paragraph 3(g) to Section 3, which shall read as follows:
"(g) The rights set forth in this Section 3 shall not apply to a transfer
of 9,081 shares of Stock, a Warrant for 7,000 shares of Stock and the
Stock issuable upon exercise thereof and a Warrant for 9,625 shares
of Stock and the Stock issuable upon exercise thereof from Xxxxxxxxx
& Xxxxx Liquidating Trust to Xxxxxxxxx & Xxxxx California."
3. Except as modified hereby, the Stock Rights Agreement shall continue in
full force and effect.
4. This Amendment No. 3 may be signed in counterparts, each of which taken
together shall constitute one agreement.
5. All capitalized terms used in this Amendment No. 3 shall have the meaning
assigned to them in the Stock Rights Agreement.
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AMENDMENT NO. 4
TO
FIRST AMENDMENT AND RESTATEMENT OF
STOCK RIGHTS AND VOTING AGREEMENT
WHEREAS, Bottomline Technologies (de), Inc. and certain other persons are
parties to certain First Amendment and Restatement of Stock Rights and Voting
Agreement, dated as of March 31, 1992, as amended (the "Agreement"); and
WHEREAS, this amendment to the Agreement has been approved in accordance with
the provisions of Section 8(a) of the Agreement;
NOW, THEREFORE, for good and valuable consideration, the sufficiency of which is
hereby acknowledged, the Agreement is hereby amended:
1. To add a new Section 10, as set forth below:
"Termination of Agreement. This Agreement shall terminate, except with
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respect to Sections 2 and 5, upon the closing of the Corporation's initial
public offering of Stock pursuant to an effective registration statement under
the Securities Act, resulting in at least $10,000,000 of gross proceeds to the
Corporation."
2. To add a new Section 2(a)(iv), as set froth below:
"(iv) notwithstanding any other provision of the Section2, the rights of
the Shareholders to include shares of stock in the Registration for the
Corporation's initial underwritten public offering at Stock shall be deemed to
be satisfied if the Corporation offers each Shareholder the right to include in
such Registration the same percentage of their then current holdings of shares
of Stock; and further any Stockholder who has not irrevocably agreed to include
shares of Stock in such Registration or has not executed, completed and
delivered all other documents required by the Corporation and/or the
underwriters in order to include shares of Stock in such Registration or has
executed, completed and delivered all other documents required by the
Corporation and/or the underwriters in order to include shares of Stock in such
Registration within 5 days of having been sent or given written notice by the
Corporation of the price or range of prices at which shares of Stock will be
offered pursuant to such Registration, shall be deemed to have waived any right
to include shares of Stock in such Registration."
3. To delete the word "and" at the end of Section 2(a)(ii).
4. To change the punctuation at the end of Section 2(a)(iii) from a
period to a semicolon and to add the word "and" after the newly
inserted semicolon.
