Exhibit 10.2
THIS WARRANT AND THE SHARES OF COMMON STOCK ISSUED UPON ITS
EXERCISE ARE SUBJECT TO THE RESTRICTIONS ON
TRANSFER SET FORTH IN SECTION 4 OF THIS WARRANT
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Number of Shares: 100,000
BOTTOMLINE TECHNOLOGIES (DE), INC.
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Common Stock Purchase Warrant
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Bottomline Technologies (de), Inc., a Delaware corporation (the "Company"),
for value received, hereby certifies that ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ II, LLC or its
registered assigns (the "Registered Holder"), is entitled, subject to the terms
and conditions set forth below, to purchase from the Company, at any time or
from time to time on or after the date of issuance and on or before (i) the
closing of a Sale of the Company (as defined in Section 2(e)) or (ii) the third
anniversary of the date of issuance of this Warrant, 100,000 shares of Common
Stock, $.001 par value per share, of the Company, at a purchase price of $4.25
per share. The shares purchasable upon exercise of this Warrant, and the
purchase price per share, each as adjusted from time to time pursuant to the
provisions of this Warrant, are hereinafter referred to as the "Warrant Shares"
and the "Purchase Price," respectively.
1. Exercise.
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(a) This Warrant may be exercised by the Registered Holder, in whole or in
part, by surrendering this Warrant, with the purchase form appended hereto
as Exhibit I duly executed by the Registered Holder or by the Registered
Holder's duly authorized attorney, at the principal office of the Company,
or at such other office or agency as the Company may designate, accompanied
by payment in full, in lawful money of the United States, of the Purchase
Price payable in respect of the number of Warrant Shares purchased upon
such exercise.
(b) Each exercise of this Warrant shall be deemed to have been effected
immediately prior to the close of business on the day on which this Warrant
shall have been surrendered to the Company as provided in subsection 1(a)
above (the "Exercise Date"). At such time, the person or persons in whose
name or names any certificates for Warrant Shares shall be issuable upon
such exercise as provided in subsection 1(c) below shall be deemed to have
become the holder or holders of record of the Warrant Shares represented by
such certificates.
(c) As soon as practicable after the exercise of this Warrant in full or
in part, and in any event within 10 days thereafter, the Company, at its
expense, will cause to be issued in the name of, and delivered to, the
Registered Holder, or as such Holder (upon payment by such Holder of any
applicable transfer taxes) may direct:
(i) a certificate or certificates for the number of full Warrant
Shares to which the Registered Holder shall be entitled upon such
exercise plus, in lieu of any fractional share to which the Registered
Holder would otherwise be entitled, cash in an amount determined
pursuant to Section 3 hereof; and
(ii) in case such exercise is in part only, a new warrant or
warrants (dated the date hereof) of like tenor, calling in the
aggregate on the face or faces thereof for the number of Warrant
Shares equal (without giving effect to any adjustment therein) to the
number of such shares called for on the face of this Warrant minus the
number of such shares purchased by the Registered Holder upon such
exercise.
2. Adjustments.
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(a) Adjustment for Stock Splits and Combinations. If the Company shall at
any time or from time to time after the date on which this Warrant was
first issued (the "Original Issue Date") effect a subdivision of the
outstanding Common Stock, the Purchase Price then in effect immediately
before that subdivision shall be proportionately decreased. If the Company
shall at any time or from time to time after the Original Issue Date
combine the outstanding shares of Common Stock, the Purchase Price then in
effect immediately before the combination shall be proportionately
increased. Any adjustment under this paragraph shall become effective at
the close of business on the date the subdivision or combination becomes
effective.
(b) Adjustment for Certain Dividends and Distributions. In the event the
Company at any time, or from time to time after the Original Issue Date
shall make or issue, or fix a record date for the determination of holders
of Common Stock entitled to receive, a dividend or other distribution
payable in additional shares of Common Stock, then and in each such event
the Purchase Price then in effect immediately before such event shall be
decreased as of the time of such issuance or, in the event such a record
date shall have been fixed, as of the close of business on such record
date, by multiplying the Purchase Price then in effect by a fraction:
(i) the numerator of which shall be the total number of shares of
Common Stock issued and outstanding immediately prior to the time of
such issuance or the close of business on such record date, and
(ii) the denominator of which shall be the total number of shares of
Common Stock issued and outstanding immediately prior to the time of
such issuance or the close of business on such record date plus the
number of shares of Common Stock issuable in payment of such dividend
or distribution;
provided, however, if such record date shall have been fixed and such
dividend is not fully paid or if such distribution is not fully made
on the date fixed therefor, the Purchase Price shall be recomputed
accordingly as of the close of business on such record date and
thereafter the Purchase Price shall be adjusted pursuant to this
paragraph as of the time of actual payment of such dividends or
distributions.
(c) Adjustment in Number of Warrant Shares. When any adjustment is
required to be made in the Purchase Price pursuant to subsections 2(a) or
2(b), the number of Warrant Shares purchasable upon the exercise of this
Warrant shall be changed to the number determined by dividing (i) an amount
equal to the number of shares issuable upon the exercise of this Warrant
immediately prior to such adjustment, multiplied by the Purchase Price in
effect immediately prior to such adjustment, by (ii) the Purchase Price in
effect immediately after such adjustment.
(d) Adjustments for Other Dividends and Distributions. In the event the
Company at any time or from time to time after the Original Issue Date
shall make or issue, or fix a record
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date for the determination of holders of Common Stock entitled to receive,
a dividend or other distribution payable in securities of the Company
(other than shares of Common Stock) or in cash or other property (other
than cash out of earnings or earned surplus, determined in accordance with
generally accepted accounting principles), then and in each such event
provision shall be made so that the Registered Holder shall receive upon
exercise hereof, in addition to the number of shares of Common Stock
issuable hereunder, the kind and amount of securities of the Company and/or
cash and other property which the Registered Holder would have been
entitled to receive had this Warrant been exercised into Common Stock on
the date of such event and had the Registered Holder thereafter, during the
period from the date of such event to and including the Exercise Date,
retained any such securities receivable, giving application to all
adjustments called for during such period under this Section 2 with respect
to the rights of the Registered Holder.
(e) Adjustment for Mergers or Reorganizations, etc. If there shall occur
any reorganization, recapitalization, consolidation or merger involving the
Company in which the Common Stock is converted into or exchanged for
securities, cash or other property (other than a Sale of the Company
transaction (as defined below) or a transaction covered by subsections
2(a), 2(b) or 2(d)), then, following any such reorganization,
recapitalization, consolidation or merger, the Registered Holder shall
receive upon exercise hereof the kind and amount of securities, cash or
other property which the Registered Holder would have been entitled to
receive if, immediately prior to such reorganization, recapitalization,
consolidation or merger, the Registered Holder had held the number of
shares of Common Stock subject to this Warrant. In any such case,
appropriate adjustment (as determined in good faith by the Board of
Directors of the Company) shall be made in the application of the
provisions set forth herein with respect to the rights and interests
thereafter of the Registered Holder, to the end that the provisions set
forth in this Section 2 (including provisions with respect to changes in
and other adjustments of the Purchase Price) shall thereafter be
applicable, as nearly as reasonably may be, in relation to any securities,
cash or other property thereafter deliverable upon the exercise of this
Warrant. For the purposes hereof, a "Sale of the Company" shall mean (i)
the sale of all or substantially all of the assets or stock of the Company
or (ii) the acquisition of the Company by means of a reorganization,
merger, consolidation or recapitalization unless the owners of the capital
stock of the Company before such transaction continue to own after such
transaction more than 50% of the capital stock of the acquiring or
succeeding entity in substantially the same proportions as held prior to
such transaction.
(f) Certificate as to Adjustments. Upon the occurrence of each adjustment
or readjustment of the Purchase Price pursuant to this Section 2, the
Company at its expense shall promptly compute such adjustment or
readjustment in accordance with the terms hereof and furnish to the
Registered Holder a certificate setting forth such adjustment or
readjustment (including the kind and amount of securities, cash or other
property for which this Warrant shall be exercisable and the Purchase
Price) and showing in detail the facts upon which such adjustment or
readjustment is based. The Company shall, upon the written request at any
time of the Registered Holder, furnish or cause to be furnished to the
Registered Holder a certificate setting forth (i) the Purchase Price then
in effect and (ii) the number of shares of Common Stock and the amount, if
any, of other securities, cash or property which then would be received
upon the exercise of this Warrant.
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3. Fractional Shares. The Company shall not be required upon the exercise of
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this Warrant to issue any fractional shares, but shall make an adjustment
therefor in cash on the basis of the Fair Market Value per share of Common
Stock. The Fair Market Value per share of Common Stock shall be determined as
follows:
(i) If the Common Stock is listed on a national securities
exchange, the Nasdaq National Market or another nationally recognized
trading system as of the Exercise Date, the Fair Market Value per
share of Common Stock shall be deemed to be the average of the high
and low reported sale prices per share of Common Stock thereon on the
trading day immediately preceding the Exercise Date (provided that if
no such price is reported on such day, the Fair Market Value per share
of Common Stock shall be determined pursuant to clause (ii)).
(ii) If the Common Stock is not listed on a national securities
exchange, the Nasdaq National Market or another nationally recognized
trading system as of the Exercise Date, the Fair Market Value per
share of Common Stock shall be deemed to be the amount most recently
determined by the Board of Directors to represent the fair market
value per share of the Common Stock (including without limitation a
determination for purposes of granting Common Stock options or issuing
Common Stock under an employee benefit plan of the Company); and, upon
request of the Registered Holder, the Board of Directors (or a
representative thereof) shall promptly notify the Registered Holder of
the Fair Market Value per share of Common Stock. Notwithstanding the
foregoing, if the Board of Directors has not made such a determination
within the three-month period prior to the Exercise Date, then (A) the
Board of Directors shall make a determination of the Fair Market Value
per share of the Common Stock within 15 days of a request by the
Registered Holder that it do so, and (B) the exercise of this Warrant
pursuant to this subsection 1(b) shall be delayed until such
determination is made.
4. Requirements for Transfer.
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(a) This Warrant and the Warrant Shares shall not be sold or transferred
unless either (i) they first shall have been registered under the
Securities Act of 1933, as amended (the "Act"), or (ii) the Company first
shall have been furnished with an opinion of legal counsel, reasonably
satisfactory to the Company, to the effect that such sale or transfer is
exempt from the registration requirements of the Act. Notwithstanding the
foregoing, the Warrant Shares may not be assigned or transferred except as
set forth in Section 11 of the Second Amendment to Sublease dated September
19, 2001 between the Company and the Registered Holder.
(b) Each certificate representing Warrant Shares shall bear a legend
substantially in the following form:
"The securities represented by this certificate have not been
registered under the Securities Act of 1933, as amended, and may not
be offered, sold or otherwise transferred, pledged or hypothecated
unless and until such securities are registered under such Act or an
opinion of counsel satisfactory to the Company is obtained to the
effect that such registration is not required."
The foregoing legend shall be removed from the certificates representing
any Warrant Shares, at the request of the holder thereof, at such time as they
become eligible for resale pursuant to Rule 144(k) under the Act.
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Each certificate representing Warrant Shares shall bear a legend
substantially in the following form:
"The securities represented by this certificate are subject to and
have the benefit of certain restrictions on sale or transfer pursuant
to a Second Amendment to Sublease dated September 19, 2001, a copy of
which is available from the Company upon request."
5. No Impairment. The Company will not, by amendment of its charter or through
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reorganization, transfer of assets, consolidation, merger, dissolution, issue or
sale of securities or any other voluntary action, avoid or seek to avoid the
observance or performance of any of the terms of this Warrant, but will at all
times in good faith assist in the carrying out of all such terms and in the
taking of all such action as may be necessary or appropriate in order to protect
the rights of the holder of this Warrant against impairment.
6. Notices of Record Date, etc. In the event:
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(a) the Company shall take a record of the holders of its Common Stock (or
other stock or securities at the time deliverable upon the exercise of this
Warrant) for the purpose of entitling or enabling them to receive any
dividend or other distribution, or to receive any right to subscribe for or
purchase any shares of stock of any class or any other securities, or to
receive any other right; or
(b) of any capital reorganization of the Company, any reclassification of
the Common Stock of the Company, any consolidation or merger of the Company
with or into another corporation (other than a consolidation or merger in
which the Company is the surviving entity and its Common Stock is not
converted into or exchanged for any other securities or property), or any
transfer of all or substantially all of the assets of the Company; or
(c) of the voluntary or involuntary dissolution, liquidation or winding-up
of the Company,
then, and in each such case, the Company will mail or cause to be mailed to the
Registered Holder a notice specifying, as the case may be, (i) the record date
for such dividend, distribution or right, and the amount and character of such
dividend, distribution or right, or (ii) the effective date on which such
reorganization, reclassification, consolidation, merger, transfer, dissolution,
liquidation or winding-up is to take place, and the time, if any is to be fixed,
as of which the holders of record of Common Stock (or such other stock or
securities at the time deliverable upon the exercise of this Warrant) shall be
entitled to exchange their shares of Common Stock (or such other stock or
securities) for securities or other property deliverable upon such
reorganization, reclassification, consolidation, merger, transfer, dissolution,
liquidation or winding-up. Such notice shall be mailed at least ten days prior
to the record date or effective date for the event specified in such notice.
7. Reservation of Stock. The Company will at all times reserve and keep
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available, solely for issuance and delivery upon the exercise of this Warrant,
such number of Warrant Shares and other securities, cash and/or property, as
from time to time shall be issuable upon the exercise of this Warrant.
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8. Exchange of Warrants. Upon the surrender by the Registered Holder, properly
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endorsed, to the Company at the principal office of the Company, the Company
will, subject to the provisions of Section 4 hereof, issue and deliver to or
upon the order of such Holder, at the Company's expense, a new Warrant or
Warrants of like tenor, in the name of the Registered Holder or as the
Registered Holder (upon payment by the Registered Holder of any applicable
transfer taxes) may direct, calling in the aggregate on the face or faces
thereof for the number of shares of Common Stock (or other securities, cash
and/or property) then issuable upon exercise of this Warrant.
9. Replacement of Warrants. Upon receipt of evidence reasonably satisfactory
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to the Company of the loss, theft, destruction or mutilation of this Warrant and
(in the case of loss, theft or destruction) upon delivery of an indemnity
agreement (with surety if reasonably required) in an amount reasonably
satisfactory to the Company, or (in the case of mutilation) upon surrender and
cancellation of this Warrant, the Company will issue, in lieu thereof, a new
Warrant of like tenor.
10. Transfers, etc.
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(a) The Company will maintain a register containing the name and address
of the Registered Holder of this Warrant. The Registered Holder may change
its or his address as shown on the warrant register by written notice to
the Company requesting such change.
(b) Subject to the provisions of Section 4 hereof, this Warrant and all
rights hereunder are transferable, in whole or in part, upon surrender of
this Warrant with a properly executed assignment (in the form of Exhibit II
hereto) at the principal office of the Company.
(c) Until any transfer of this Warrant is made in the warrant register,
the Company may treat the Registered Holder as the absolute owner hereof
for all purposes; provided, however, that if and when this Warrant is
properly assigned in blank, the Company may (but shall not be obligated to)
treat the bearer hereof as the absolute owner hereof for all purposes,
notwithstanding any notice to the contrary.
11. Mailing of Notices, etc. All notices and other communications from the
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Company to the Registered Holder shall be mailed by first-class certified or
registered mail, postage prepaid, to the address last furnished to the Company
in writing by the Registered Holder. All notices and other communications from
the Registered Holder or in connection herewith to the Company shall be mailed
by first-class certified or registered mail, postage prepaid, to the Company at
its principal office set forth below. If the Company should at any time change
the location of its principal office to a place other than as set forth below,
it shall give prompt written notice to the Registered Holder and thereafter all
references in this Warrant to the location of its principal office at the
particular time shall be as so specified in such notice.
12. No Rights as Stockholder. Until the exercise of this Warrant, the
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Registered Holder shall not have or exercise any rights by virtue hereof as a
stockholder of the Company. Notwithstanding the foregoing, in the event (i) the
Company effects a split of the Common Stock by means of a stock dividend and the
Purchase Price of and the number of Warrant Shares are adjusted as of the date
of the distribution of the dividend (rather than as of the record date for such
dividend), and (ii) the Registered Holder exercises this Warrant between the
record date and the distribution date for such stock dividend, the Registered
Holder shall be entitled to receive,
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on the distribution date, the stock dividend with respect to the shares of
Common Stock acquired upon such exercise, notwithstanding the fact that such
shares were not outstanding as of the close of business on the record date for
such stock dividend.
13. Change or Waiver. Any term of this Warrant may be changed or waived only
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by an instrument in writing signed by the party against which enforcement of the
change or waiver is sought.
14. Section Headings. The section headings in this Warrant are for the
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convenience of the parties and in no way alter, modify, amend, limit or restrict
the contractual obligations of the parties.
15. Governing Law. This Warrant will be governed by and construed in
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accordance with the internal laws of the State of Delaware (without reference to
the conflicts of law provisions thereof).
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EXECUTED as of the Date of Issuance indicated above.
BOTTOMLINE TECHNOLOGIES (de), INC.
By:________________________________
[Corporate Seal] Title:_____________________________
ATTEST:
_________________________
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EXHIBIT I
PURCHASE FORM
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To:_________________ Dated:____________
The undersigned, pursuant to the provisions set forth in the attached
Warrant (No. ___), hereby irrevocably elects to purchase _____ shares of the
Common Stock covered by such Warrant.
The undersigned herewith makes payment n lawful money of the United States
of the full purchase price for such shares at the price per share provided for
in such Warrant, which is $________.
Signature: _______________________
Address: _______________________
_______________________
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EXHIBIT II
ASSIGNMENT FORM
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FOR VALUE RECEIVED, ________________________________________ hereby sells,
assigns and transfers all of the rights of the undersigned under the attached
Warrant (No. ____) with respect to the number of shares of Common Stock covered
thereby set forth below, unto:
Name of Assignee Address No. of Shares
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Dated:_____________________ Signature:________________________________
Signature Guaranteed:
By: _______________________
The signature should be guaranteed by an eligible guarantor institution (banks,
stockbrokers, savings and loan associations and credit unions with membership in
an approved signature guarantee medallion program) pursuant to Rule 17Ad-15
under the Securities Exchange Act of 1934.
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