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