Exhibit 2.2
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THIS NOTE AND THE SHARES OF COMMON STOCK OF BOTTOMLINE TECHNOLOGIES (DE), INC.
(THE "COMMON STOCK") THAT MAY BE ISSUABLE PURSUANT TO THIS NOTE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT").
THIS NOTE AND THE COMMON STOCK MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE
TRANSFERRED (NOR MAY THE HOLDER OF THIS NOTE OR OF THE COMMON STOCK OTHERWISE
HEDGE ITS EXPOSURE WITH RESPECT TO THE NOTE OR THE COMMON STOCK) EXCEPT (A)(1)
IN AN OFFSHORE TRANSACTION COMPLYING WITH RULE 903 OR RULE 904 OF REGULATION S
UNDER THE SECURITIES ACT, OR (2) PURSUANT TO AN EXEMPTION FROM REGISTRATION
UNDER THE SECURITIES ACT PROVIDE BY RULE 144 THEREUNDER (IF AVAILABLE), AND (B)
IN EACH CASE IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE UNITED
STATES. NO REPRESENTATION CAN BE MADE AS TO THE AVAILABILITY OF THE EXEMPTION
PROVIDED BY RULE 144 UNDER THE SECURITIES ACT FOR RESALE OF THE COMMON STOCK.
Certificate No. Date: August , 2000
BOTTOMLINE TECHNOLOGIES (de), INC.
LOAN NOTE
FOR VALUE RECEIVED, Bottomline Technologies (de), Inc., a Delaware corporation
(the "Company," hereby promises to pay to __________________ (the "Noteholder")
the principal amount of $__________ on August , 2001, together with interest on
the unpaid principal balance from the date of this Note (less any deduction for
tax on the interest which the Company is required by law to deduct or withhold)
until the date the Note is paid in full. The amount of interest to be paid on
such date and the method of such payment is set forth below. This Note has been
issued by the Company pursuant to the terms of the Share Purchase Agreement
between the Company and the persons set forth in Column A of Schedule 1 thereto
(the "Share Purchase Agreement").
1. Repayment.
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Unless previously repaid, the Note (together with outstanding interest) will be
repaid in full on August , 2001, the first anniversary of the Completion (as
defined in the Share Purchase Agreement) (the "Due Date") together with accrued
interest (less any deduction for tax on the interest which the Company is
required by law to deduct or withhold) up to but excluding the date of
repayment. Prior to the Due Date, the Company may repay the Note (together with
outstanding interest) in cash only. On the Due Date, in the Company's sole
discretion, the Note (together with outstanding interest) may be repaid in (a)
cash; (b) common stock of the Company, $.001 par value per share (the "Common
Stock") or (c) a combination of cash and Common Stock; it being acknowledged and
understood that the Company shall not in any event
issue a number of shares which, when combined with Consideration Shares
previously issued pursuant to the Share Purchase Agreement, would require it to
obtain the consent of Company shareholders under the rules of the NASDAQ
National Market applicable to member companies or otherwise, without first
obtaining such consent. For the purposes of determining the number of shares of
Common Stock issuable to the Noteholder upon repayment of the Note (together
with outstanding interest), the Common Stock shall be valued at the average of
the last reported sale price per share of the Company's Common Stock on the
Nasdaq National Market for the ten consecutive trading days preceding the date
of this Note.
2. Payment of Interest.
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Until the Note is repaid in accordance with the terms and conditions of this
Note, for the period beginning on August , 2000 and ending on February , 2001,
interest shall accrue on the Note at ten percent (10.0%) per annum. For the
period beginning on February , 2001, interest shall accrue on the Note at
fourteen percent (14.0%) per annum. For the avoidance of doubt, the 14.0%
interest rate shall not apply retroactively to the first six-month period.
3. Prepayment.
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The Company may prepay, in its sole discretion, all or any part of the principal
amount and interest outstanding (less any deduction for tax on the interest
which the Company is required by law to deduct or withhold) under this Note at
any time without penalty or premium. Upon prepayment by the Company of the
entire principal and interest outstanding under this Note (less any deduction
for tax on the interest which the Company is required by law to deduct or
withhold), all of the terms and provisions of this Note shall automatically
terminate and be cancelled. The Note may be prepaid in cash only.
4. Method of Payment.
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All payments of principal, accrued interest and other amounts due under this
Note (less any deduction for tax on the interest which the Company is required
by law to deduct or withhold) are to be made to the Noteholder at its address on
the books of the Company, or such other place as the Noteholder shall designate
to the Company in writing, in U.S. dollars in immediately available funds or by
the tender of share certificates issued in the name of the Noteholder, as
applicable.
5. Registration Rights.
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In the event that the Noteholder receives shares of Common Stock as repayment of
this Note, the Company shall file with the United States Securities and Exchange
Commission, within 60 days following the repayment of this Note, a Registration
Statement on Form S-3 covering the resale to the public by the Noteholder of
such shares. In the event that the Noteholder receives shares of Common Stock as
repayment of this Note, the Noteholder shall be subject to subsections 2, 3, 4,
and 6 of Clause 11 of the Share Purchase Agreement.
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6. Default and Remedy.
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This Note shall become immediately due and payable without notice or demand upon
the occurrence at any time of any of the following events of default:
(a) the liquidation, termination of existence, dissolution,
insolvency or business failure of the Company, or the appointment
of a receiver or custodian for the Company or any part of its
property; or
(b) the institution by or against the Company of any proceedings
under the United States Bankruptcy Code or any other federal or
state bankruptcy, reorganization, receivership, insolvency or
other similar law affecting the rights of creditors generally or
the making by the Company of a composition or an assignment or
trust mortgage for the benefit of creditors.
In the event that the Company shall have failed to pay the full amount of
principal and accrued interest then outstanding (less any deduction for tax on
the interest which the Company is required by law to deduct or withhold) on the
Due Date, the Noteholder may proceed to protect its rights by suit in equity,
action at law and/or other appropriate proceedings.
7. Costs;Waivers.
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The Company agrees to pay all costs (including reasonable attorney's fees,
expenses and disbursements) of the Noteholder in connection with the collection
and/or enforcement of this Note. The Company hereby waives presentment for
payment, demand, protest and notice of dishonor. No delay or omission on the
part of the Noteholder in exercising any rights hereunder shall operate as a
waiver of such rights or any other rights of the Noteholder, nor shall any
delay, omission or waiver on one occasion be deemed a bar to or waiver of the
same or any other right on future occasions.
8. Amendment.
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None of the terms or provisions of this Note may be excluded, modified or
amended except by written instrument duly executed on behalf of the Noteholder
expressly referring to this Note and setting forth the provision so excluded,
modified or amended.
9. Governing Law.
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This Note shall be governed by and construed in accordance with the laws of the
State of Delaware without regard to the conflict or choice of law principles
thereunder.
10. Notices.
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Any notice, request, demand or other communication required or permitted
hereunder shall be made in writing and mailed in a prepaid, first-class envelope
addressed to the Company at its registered office or the Noteholder at its
address kept on the books of the Company, as applicable.
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BOTTOMLINE TECHNOLOGIES (de), INC.
By: _________________________________
Name:
Title:
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