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As filed with the Securities and Exchange Commission on May 14, 1999
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
Bottomline Technologies (de), Inc.
(Exact Name of Registrant as Specified in Its Charter)
Delaware 02-0433294
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
155 Fleet Street, Portsmouth, New Hampshire 03801
(Address of Principal Executive Offices) (Zip Code)
Amended and Restated 1997 Stock Incentive Plan
(Full Title of the Plan)
Daniel M. McGurl
Chairman of the Board, President and Chief Executive Officer
Bottomline Technologies (de), Inc.
155 Fleet Street
Portsmouth, New Hampshire 03801
(Name and Address of Agent for Service)
(603) 436-0700
(Telephone number, Including Area Code, of Agent For Service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=======================================================================================================
Proposed Proposed
Title of Each Class Maximum Maximum
of Securities to be Amount to be Offering Price Per Aggregate Amount of
Registered Registered Share Offering Price Registration Fee
- -------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock
$.001 par value
per share 2,700,000 shares $56.125(1) $151,537,500(1) $42,127.43(1)
======================================================================================================
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rules 457(c) and 457(h) of the Securities Act of 1933, as
amended, and based upon the average of the high and low prices of the
common stock as reported on the Nasdaq National Market on May 10, 1999.
<PAGE>
PART I. INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.
The information required by Part I is included in documents sent or given
to participants in the Amended and Restated 1997 Stock Incentive Plan of
Bottomline Technologies (de), Inc. pursuant to Rule 428(b)(1) of the Securities
Act of 1933, as amended.
PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The registrant is subject to the informational and reporting requirements
of Sections 13(a), 14, and 15(d) of the Securities Exchange Act of 1934, as
amended, and in accordance therewith files reports, proxy statements and other
information with the Securities and Exchange Commission. The following
documents, which are filed with the Securities and Exchange Commission, are
incorporated in this registration statement by reference:
(a) The registrant's prospectus dated February 12, 1999, filed pursuant to
Rule 424(b) under the Securities Act.
(b) All other reports filed pursuant to Section 13(a) or 15(d) of the
Exchange Act since the end of the fiscal year covered by the prospectus referred
to in (a) above.
(c) The description of the common stock of the registrant, par value $.001
per share, contained in the registrant's registration statement on Form 8-A
dated January 12, 1999 and filed under the Exchange Act, including any amendment
or report filed for the purpose of updating such description.
All documents subsequently filed by the registrant pursuant to Sections
13(a), 13(c), 14, and 15(d) of the Exchange Act prior to the filing of a post-
effective amendment which indicates that all shares of common stock offered
hereby have been sold or which deregisters all shares of common stock then
remaining unsold, shall be deemed to be incorporated by reference herein and to
be part hereof from the date of the filing of the documents. Any statement
contained in a document incorporated or deemed to be incorporated by reference
herein shall be deemed to be modified or superseded for the purposes of this
registration statement to the extent a statement contained herein or in any
other subsequently filed document which also is or is deemed to be incorporated
by reference herein modifies or supersedes such statement. Any statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this registration statement.
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Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
The Assistant Secretary to the Corporation, John A. Burgess, Esq., is
a senior partner of Hale and Dorr LLP, counsel to the Corporation. Hale and
Dorr LLP has opined as to the securities being offered by this Registration
Statement.
Item 6. Indemnification of Directors and Officers.
Article EIGHTH of the registrant's Amended and Restated Certificate of
Incorporation provides that no director of the registrant shall be personally
liable for any monetary damages for any breach of fiduciary duty as a director,
except to the extent that the Delaware General Corporation Law statute prohibits
the elimination or limitation of liability of directors for breach of fiduciary
duty.
Article NINTH of the registrant's Amended and Restated Certificate of
Incorporation provides that a director or officer of the registrant (a) shall be
indemnified by the registrant against all expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement incurred in connection with any
litigation or other legal proceeding (other than an action by or in the right of
the registrant) brought against him by virtue of his position as a director or
officer of the registrant if he acted in good faith and in a manner he
reasonably believed to be in, or not opposed to, the best interests of the
registrant, and, with respect to any criminal action or proceeding, has no
reasonable cause to believe his conduct was unlawful and (b) shall be
indemnified by the registrant against all expenses (including attorneys' fees)
and amounts paid in settlement incurred in connection with any action by or in
the right of the registrant brought against him by virtue of his position as a
director or officer of the registrant if he acted in good faith and in a manner
he reasonably believed to be in, or not opposed to, the best interests of the
registrant, except that no indemnification shall be made with respect to any
matter as to which such person shall have been adjudged to be liable to the
registrant, unless a court determines that, despite such adjudication but in
view of all of the circumstances, he is entitled to indemnification of such
expenses. Notwithstanding the foregoing, to the extent that a director or
officer has been successful, on the merits or otherwise, including, without
limitation, the dismissal of an action without prejudice, he is required to be
indemnified by the registrant against all expenses (including attorneys' fees)
incurred in connection therewith. Expenses shall be advanced to a director or
officer at his request, provided that he undertakes to repay the amount advanced
if it is ultimately determined that he is not entitled to indemnification for
such expenses.
2
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Indemnification is required to be made unless the registrant determines
that the applicable standard of conduct required for indemnification has not
been met. In the event of a determination by the registrant that the director or
officer did not meet the applicable standard of conduct required for
indemnification, or if the registrant fails to make an indemnification payment
within 60 days after such payment is claimed by such person, such person is
permitted to petition the court to make an independent determination as to
whether such person is entitled to indemnification. As a condition precedent to
the right of indemnification, the director or officer must give the registrant
notice of the action for which indemnity is sought and the registrant has the
right to participate in such action or assume the defense thereof.
Article NINTH of the registrant's Amended and Restated Certificate of
Incorporation further provides that the indemnification provided therein is not
exclusive, and provides that in the event that the Delaware General Corporation
Law statute is amended to expand the indemnification permitted to directors or
officers the registrant must indemnify those persons to the full extent
permitted by such law as so amended.
Section 145 of the Delaware General Corporation Law statute provides that a
corporation has the power to indemnify a director, officer, employee or agent of
the corporation and certain other persons serving at the request of the
corporation in related capacities against amounts paid and expenses incurred in
connection with an action or proceeding to which he is or is threatened to be
made a party by reason of such position, if such person shall have acted in good
faith and in a manner he reasonably believed to be in or not opposed to the best
interests of the corporation, and, in any criminal proceeding, if such person
had no reasonable cause to believe his conduct was unlawful; provided that, in
the case of actions brought by or in the right of the corporation no
indemnification shall be made with respect to any matter as to which such person
shall have been adjudged to be liable to the corporation unless and only to the
extent that the adjudicating court determines that such indemnification is
proper under the circumstances.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
The Exhibit Index immediately preceding the exhibits is incorporated herein
by reference.
Item 9. Undertakings.
(a) The registrant hereby undertakes:
3
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(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement to include
any material information with respect to the plan of distribution not
previously disclosed in the registration statement or any material change
to such information in the registration statement; provided, however, that
paragraphs (i) and (ii) do not apply if the registration statement is on
Form S-3 or Form S-8, and the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic
reports filed by the registrant pursuant to Section 13 or Section 15(d) of
the Exchange Act that are incorporated by reference in the registration
statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to
be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(b) The registrant hereby undertakes that, for purposes of determining
any liability under the Securities Act, each filing of the registrant's annual
report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and,
where applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference
in the registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Securities Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
4
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SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Portsmouth, State of New Hampshire, on the 14th day
of May, 1999.
BOTTOMLINE TECHNOLOGIES (de), INC.
By: /s/ Daniel M. McGurl
_______________________
Daniel M. McGurl
Chairman of the Board, President
and Chief Executive Officer
5
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POWER OF ATTORNEY AND SIGNATURES
We, the undersigned officers and directors of Bottomline Technologies (de),
Inc., hereby severally constitute Daniel M. McGurl, Robert A. Eberle and Philip
P. Rossetti, Esq., and each of them singly, our true and lawful attorneys with
full power to them, and each of them singly, to sign for us and in our names in
the capacities indicated below, the registration statement on Form S-8 filed
herewith and any and all subsequent amendments to said registration statement,
and generally to do all such things in our names and behalf in our capacities as
officers and directors to enable Bottomline Technologies (de), Inc. to comply
with all requirements of the Securities and Exchange Commission, hereby
ratifying and confirming our signatures as they may be signed by said attorneys,
or any of them, to said registration statement and any and all amendments
thereto.
Pursuant to the requirements of the Securities Act, this registration
statement has been signed below by the following persons in the capacities
indicated below and on the 14th day of May, 1999.
Signature Title
- --------- -----
/s/ Daniel M. McGurl Chairman of the Board, President and
__________________________ Chief Executive Officer (Principal
Daniel M. McGurl Executive Officer)
/s/ Robert A. Eberle Executive Vice President, Chief
__________________________ Financial Officer and Treasurer
Robert A. Eberle (Principal Financial and Accounting
Officer)
/s/ Joseph L. Barry, Jr. Director
__________________________
Joseph L. Barry, Jr.
/s/ Bruce E. Elmblad Director
__________________________
Bruce E. Elmblad
/s/ James L. Loomis Director
__________________________
James L. Loomis
/s/ Joseph L. Mullen Director
__________________________
Joseph L. Mullen
/s/ James W. Zilinski Director
__________________________
James W. Zilinski
6
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INDEX TO EXHIBITS
Number Description
- ------ -----------
3.1(1) Amended and Restated Certificate of
Incorporation of the registrant
3.2(1) Amended and Restated By-laws of the registrant
4.1(1) Specimen stock certificate of common stock
of the registrant
5.1 Opinion of Hale and Dorr LLP, counsel to
the registrant
23.1 Consent of Hale and Dorr LLP
(included in Exhibit 5.1)
23.2 Consent of Ernst & Young LLP, independent
auditors
24.1 Power of attorney (included in the
signature pages of this registration
statement)
____________
(1) Previously filed with the Securities and Exchange Commission as an exhibit
to the registrant's registration statement on Form S-1, as amended (File
No. 333-67309) and incorporated herein by reference.
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HALE AND DORR LLP
Counsellors at Law
60 State Street, Boston, Massachusetts 02109
617-526-6000 . fax 617-526-5000
Exhibit 5.1
May 14, 1999
Bottomline Technologies (de), Inc.
155 Fleet Street
Portsmouth, New Hampshire 03801
Re: Amended and Restated 1997 Stock Incentive Plan
----------------------------------------------
Ladies and Gentlemen:
We have assisted in the preparation of a Registration Statement on Form
S-8 (the "Registration Statement") to be filed with the Securities and Exchange
Commission relating to 2,700,000 shares of Common Stock, $0.001 par value per
share (the "Shares"), of Bottomline Technologies (de), Inc., a Delaware
corporation (the "Company"), issuable under the Company's Amended and Restated
1997 Stock Incentive Plan (the "Plan").
We have examined the Certificate of Incorporation of the Company and
the By-laws of the Company, each as amended and restated to date, and originals,
or copies certified to our satisfaction, of all pertinent records of the
meetings of the directors and stockholders of the Company, the Registration
Statement and such other documents relating to the Company as we have deemed
material for the purposes of this opinion.
In our examination of the foregoing documents, we have assumed the
genuineness of all signatures and the authenticity of all documents submitted to
us as originals, the conformity to original documents of all documents submitted
to us as certified, photostatic or facsimile copies, and the authenticity of the
originals of any such documents.
We assume that the appropriate action will be taken, prior to the offer
and sale of the shares in accordance with the Plan, to register and qualify the
shares for sale under all applicable state securities or "blue sky" laws.
<PAGE>
Bottomline Technologies (de), Inc.
May 14, 1999
Page 2
We express no opinion herein as to the laws of any state or
jurisdiction other than the state laws of the Commonwealth of Massachusetts, the
Delaware General Corporation law statute and the federal laws of the United
States of America.
It is understood that this opinion is to be used only in connection
with the offer and sale of the Shares while the Registration Statement is in
effect.
Please note that we are opining only as to the matters expressly set
forth herein, and no opinion should be inferred as to any other matters.
Based on the foregoing, we are of the opinion that the Company has duly
authorized for issuance the Shares covered by the Registration Statement to be
issued under the Plan, as described in the Registration Statement, and such
Shares, when issued in accordance with the terms of the Plan, will be legally
issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion with the Securities and
Exchange Commission in connection with the Registration Statement.
Very truly yours,
HALE AND DORR LLP
<PAGE>
Exhibit 23.2
Consent of Independent Auditors
We consent to the incorporation by reference of our report dated August 6, 1998,
(except for the third sentence of paragraph ten of Note 8 and Note 11 as to
which the dates are November 12, 1998 and Note 12 as to which the date is
January 6, 1999), in the Registration Statements (Forms S-8) pertaining to the
1998 Director Stock Option Plan, the 1998 Employee Stock Purchase Plan, the
Amended and Restated 1997 Stock Incentive Plan and the Amended and Restated 1989
Stock Option Plan of Bottomline Technologies (de), Inc., with respect to the
financial statements and schedule of Bottomline Technologies (de), Inc. for the
year ended June 30, 1998, included in its Registration Statement (Form S-1 No.
333-67309) filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Boston, Massachusetts
May 10, 1999
