Exhibit 10.2
NEGATIVE PLEDGE AGREEMENT
This Negative Pledge Agreement is made as of December 28, 2001, by and
between BOTTOMLINE TECHNOLOGIES (de), INC. ("Borrower") and SILICON VALLEY BANK,
a California-chartered bank, with its principal place of business at 0000 Xxxxxx
Xxxxx, Xxxxx Xxxxx, Xxxxxxxxxx 00000 and with a loan production office located
at One Newton Executive Park, Suite 200, 0000 Xxxxxxxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx 00000, doing business under the name "Silicon Valley East"
("Bank").
In connection with, among other documents, the Loan and Security Agreement (the
"Loan Documents") being concurrently executed herewith between Borrower and
Bank, Borrower agrees as follows:
1. Except for the granting of non-exclusive licenses or
sublicenses by Borrower in the ordinary course of business,
Borrower has not, and shall not, sell, transfer, assign,
mortgage, pledge, lease, grant a security interest in, or
encumber any of Borrower's Intellectual Property (as defined
below).
2. Borrower has not, and shall not, enter into a negative pledge
agreement, or similar agreement, affecting the rights of the
Intellectual Property with any other party.
3. It shall be an event of default under the Loan Documents
between Borrower and Bank if there is a breach of any term of
this Negative Pledge Agreement.
4. As used herein,
a. "Intellectual Property" means:
(i) Any and all Copyrights;
(ii) Any and all trade secrets, and any and all
intellectual property rights in computer
software and computer software products now
or hereafter existing, created, acquired or
held;
(iii) Any and all design rights which may be
available to Borrower now or hereafter
existing, created, acquired or held;
(iv) All Mask Works or similar rights available for
the protection of semiconductor chips;
(v) All Patents;
(vi) Any Trademarks;
(vii) Any and all claims for damages by way of
past, present and future infringements of any
of the rights included above, with the right,
but not the obligation, to xxx for and
collect such damages for said use or
infringement of the intellectual property
rights identified above;
(viii) All licenses or other rights to use any of
the Copyrights, Patents, Trademarks, or Mask
Works and all license fees and royalties
arising from such use to the extent permitted
by such license or rights; and
(ix) All amendments, extensions, renewals and
extensions of any of the Copyrights,
Trademarks, Patents, or Mask Works; and
(x) All proceeds and products of the foregoing,
including without limitation all payments
under insurance or any indemnity or warranty
payable in respect of any of the foregoing.
b. "Copyrights" means any and all copyright rights,
copyright applications, copyright registrations and
like protections in each work of authorship and
derivative work thereof, whether published or
unpublished and whether or not the same also
constitutes a trade secret, now or hereafter
existing, created, acquired or held.
c. "Mask Works" means all mask work or similar rights
available for the protection of semiconductor chips, now
owned or hereafter acquired;
d. "Patents" means all patents, patent applications and
like protections including without limitation
improvements, divisions, continuations, renewals,
reissues, extensions and continuations-in-part of the
same.
e. "Trademarks" means any trademark and servicemark
rights, whether registered or not, applications to
register and registrations of the same and like
protections, and the entire goodwill of the business
of Borrower connected with and symbolized by such
trademarks.
5. Capitalized terms used but not otherwise defined herein shall
have the same meaning as in the Loan Documents.
6. The laws of the Commonwealth of Massachusetts shall apply to
this Agreement. BORROWER ACCEPTS FOR ITSELF AND IN CONNECTION
WITH ITS PROPERTIES, UNCONDITIONALLY, THE NON-EXCLUSIVE
JURISDICTION OF ANY STATE OR FEDERAL COURT OF COMPETENT
JURISDICTION IN THE COMMONWEALTH OF MASSACHUSETTS IN ANY
ACTION, SUIT, OR PROCEEDING OF ANY KIND, AGAINST IT WHICH
ARISES OUT OF OR BY REASON OF THIS AGREEMENT; PROVIDED,
HOWEVER, THAT IF FOR ANY REASON BANK CANNOT AVAIL ITSELF OF
THE COURTS OF THE COMMONWEALTH OF MASSACHUSETTS, BORROWER
ACCEPTS JURISDICTION OF THE COURTS AND VENUE IN SANTA XXXXX
COUNTY, CALIFORNIA.
7. This Agreement shall terminated upon repayment in full of all
Obligations (as defined in the Loan and Security Agreement)
and the termination of Bank's commitment to lend under any
Loan Documents.
8. This Agreement shall become effective only when it shall have
been executed by Borrower and Bank (provided, however, in no
event shall this Agreement become effective until signed by an
officer of Bank in California).
2
EXECUTED as a sealed instrument under the laws of the Commonwealth of
Massachusetts as of the date first written above.
BORROWER:
BOTTOMLINE TECHNOLOGIES (de), INC.
By: /s/ Xxxxxx Xxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxx
----------------------------
Title: Exec. VP, COO & CFO
----------------------------
BANK:
SILICON VALLEY BANK d/b/a SILICON
VALLEY EAST
By: /s/ Xxxxx X. Xxxxxxxxxx
------------------------------
Name: Xxxxx X. Xxxxxxxxxx
----------------------------
Title: Vice President
---------------------------
SILICON VALLEY BANK
By: /s/ Xxxxxx Xxxxxx
------------------------------
Name: Xxxxxx Xxxxxx
----------------------------
Title: Loan Admin. Team Leader
----------------------------
(Signed in Santa Clara, California)
3
