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Exhibit 2.1
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DATED 28 AUGUST 2000
BOTTOMLINE TECHNOLOGIES (de), INC
and
MERCURY ASSET MANAGEMENT LIMITED,
P.K. ROOKE, A. McCALLUM and OTHERS
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SHARE PURCHASE AGREEMENT
_________________________________________
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THIS AGREEMENT is made on 28 AUGUST 2000 BETWEEN:
(1) THE PERSONS whose names and addresses are set out in column (A) of Schedule
1 (each a "Seller" and together the "Sellers"); and
(2) BOTTOMLINE TECHNOLOGIES (de), INC., a Delaware corporation whose principal
place of business is at 155 Fleet Street, Portsmouth, New Hampshire 03801,
U.S.A. ("Purchaser").
WHEREAS:
(A) CHECKPOINT (HOLDINGS) LIMITED (the "Company") is a private company limited
by shares short particulars of which are set out in Schedule 2 having an
authorised capital of (Pounds)240,000 divided into 1,608,000 'A' ordinary
shares of 10 pence each ("'A' Ordinary Shares"), 240,000 'B' ordinary
shares of 10 pence each ("'B' Ordinary Shares") and 552,000 Ordinary Shares
of 10 pence each ("10 pence Ordinary Shares") of which 1,608,000 'A'
Ordinary Shares, 240,000 'B' Shares and 424,250 10 pence Ordinary Shares
have been issued fully paid or credited as fully paid (together the "
Shares").
(B) The Sellers are beneficially entitled to all the issued share capital of
the Company in the proportions set out opposite their respective names in
column (B) of Schedule 1.
(C) The Company is the beneficial owner of the entire issued share capitals of
all the companies short details of which are set out in Schedule 3.
(D) The Sellers wish to sell and, in reliance upon, inter alia, the
representations, warranties and undertakings set out in this agreement, the
Purchaser wishes to purchase all the issued share capital of the Company on
the terms and subject to the conditions set out in this agreement.
IT IS AGREED as follows:
1. Interpretation
(1) In this agreement:
"Accounts" means in relation to the Company: (a) its audited consolidated
statements of income for each of the last three financial years including
the year ended on the Accounts Date and (b) its consolidated balance sheets
and its changes in shareholder's equity and cash flows for each of the last
two financial years including the year ended on the Accounts Date;
"Accounts Date" means 30 April 2000;
"Agreed Form" means, in relation to any document, the form of that document
which has been initialled for the purpose of identification only by the
Sellers' Solicitors and the Purchaser's Solicitors and appended to this
agreement;
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"Balance Sheet " means the balance sheet for the fiscal year ended 30 April
2000;
"Cash Consideration" means that part of the consideration for the sale of
the Shares as is payable in cash under clause 3;
"Companies" means the Company and the Subsidiaries and "Company" means any
of them;
"Company Material Adverse Effect" means a material adverse effect on the
assets, business, condition (financial or otherwise), results of operations
or future prospects of any one or more Company taken as a whole;
"Completion" means completion of the sale and purchase of the Shares in
accordance with clause 9;
"Consideration" means the consideration payable in respect of the Shares at
Completion under clause 3(1);
"Consideration Shares" means the common stock of the Purchaser to be issued
to the Sellers credited as fully paid under clause 3 and any common stock
issued or issuable with respect to such common stock by way of a stock
dividend or stock split or in connection with a combination of shares,
recapitalisation, merger, consolidation or other reorganisation; in
addition, any shares issuable in repayment of all or any of the amount due
under the MAM Note and the Shareholder Loan Note;
"Disclosure Letter" means the letter of the same date as this agreement
from the Sellers to the Purchaser;
"First Retention and Escrow Agreement" means the first retention and escrow
agreement in the Agreed Form whereby certain consideration for the sale of
the shares is retained in escrow in accordance with the terms therein;
"French Sale Agreement" means the agreement dated 22 February 2000 between
Checkpoint Security Services Limited and Oakhurst Security Limited in
relation to the sale of shares in Compagnie Nationale des Machines de
Bureau;
"Insolvency Act" means Insolvency Act 1986;
"Intellectual Property Rights" means trade marks, service marks, trade and
business names, rights in designs, patents, copyright, database rights,
moral rights and rights in know-how and other intellectual property rights
in each case whether registered or unregistered and including applications
for the grant of any of the foregoing and all rights or forms of protection
having equivalent or similar effect to any of the foregoing which may
subsist anywhere in the world;
"Loan Notes" means the loan notes in the Agreed Form to be issued to the
Sellers in the proportion set out against their name in Schedule 1;
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"MAM" means Mercury Asset Management Limited;
"MAM Note" means the loan note dated 11 March 1999 issued by the Company to
Mercury Asset Management Limited;
"Marketing Information" means all information relating to the marketing of
any products or services, including customer names and lists, sales
targets, sales statistics, market share statistics, marketing surveys and
reports, marketing research and any advertising or other promotional
materials;
"Mexican Sale Agreement" means the agreement dated 28 April 2000 between
Checkpoint Security Services Limited and Thomas Anthony Gibson in relation
to the sale of shares in Checkpoint International S.A. de C.V.;
"Nat West Revolving Loan" means the revolving loan facility provided under
an agreement dated 11 March 1999 between Broomco (1744) Limited (former
name of Checkpoint (Holdings) Limited and National Westminster Bank Plc;
"Nat West Term Loan" means the term loan facility provided under an
agreement dated 11 March 1999 between Broomco (1744) Limited (former name
of Checkpoint (Holdings) Limited) and National Westminster Bank Plc
"NIC" means all employee's National Insurance Contributions and interest
or penalties thereon due or payable as a result of the grant or exercise of
the Options;
"Options" means all rights or options issued by the Company at any time
prior to Completion to its employees for the exercise of any equity
security of the Company;
"Planning Acts" means the Town and Country Planning Act 1990, the Planning
(Listed Buildings and Conservation Areas) Act 1990, the Planning (Hazardous
Substances) Act 1990, the Planning (Consequential Provisions) Act 1990 and
the Planning and Compensation Act 1991;
"Properties" means the properties shortly described in Schedule 4 and
"Property" means any of them and includes every part of each of them;
"Purchaser's Accountants" means Ernst & Young of 200 Clarendon Street,
Boston, Massachusetts 02115-5072, U.S.A;
"Purchaser's Solicitors" means Brobeck Hale and Dorr of Hasilwood House, 60
Bishopsgate, London EC2N 4AJ;
"Retention and Escrow Agreements" means the First and Second Retention and
Escrow Agreements in the Agreed Form whereby certain Consideration for the
sale of the Shares is retained in escrow in accordance with the terms
therein;
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"Second Retention and Escrow Agreement" means the second retention and
escrow agreement in the Agreed Form whereby certain consideration for the
sale of the shares is retained in escrow in accordance with the terms
therein;
"Seller" includes the estate and personal representatives of a Seller;
"Sellers' Accountants" means Ernst & Young of Apex Plaza, Reading, RG1 1YE;
"Sellers' Representatives" means Mercury Asset Management Limited, 33 King
William Street, London EC4R 9AS and Peter Fortune, 39a St Peter's Avenue,
Caversham, Reading, Berkshire RG1 7JX and reference to "Seller's
Representative" shall mean any one of them;
"Sellers' Solicitors" means DLA of Victoria Square House, Victoria Square,
Birmingham B2 4DL;
"Shares" means all the ordinary shares of whatever class in the capital of
the Company;
"Shareholder Loan Note" means the loan notes issued by the Company and held
by Messrs. Rooke and McCallum;
"Subsidiaries" means all the companies mentioned in Schedule 3 and
"Subsidiary" means any of them and shall, as the context requires, mean a
subsidiary for the purposes of the Companies Act 1985 ;
"TCGA 1992" means Taxation of Chargeable Gains Act 1992;
"Tax Deed" means the Tax Deed in the Agreed Form;
"Taxes Act 1988" means Income and Corporation Taxes Act 1988;
"US$" means US dollars, the lawful currency of the United States of
America;
"VATA 1994" means the Value Added Tax Act 1994;
"Warrants" means the warrant for the purchase of shares in the capital of
Bottomline in the Agreed Form to be issued by the Purchaser pursuant to
clause 3(1);
"Warranties" means the representations and warranties on the part of the
Sellers contained in clause 5(1) and Schedule 5.
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(2) In this agreement any reference, express or implied, to an enactment
includes references to:
(a) that enactment as amended, extended or applied by or under any other
enactment (before or after signature of this agreement);
(b) any enactment which that enactment re-enacts (with or without
modification); and
(c) any subordinate legislation made (before or after signature of this
agreement) under any enactment, as re-enacted, amended, extended or
applied as described in paragraph (a) above, or under any enactment
referred to in paragraph (b) above;
and "enactment" includes any legislation in any jurisdiction.
(3) Where any statement is qualified by the expression "so far as the Sellers
are aware" or "to the best of the Sellers' knowledge, information and
belief" or any similar expression that statement shall be deemed to include
an additional statement that it has been made after careful enquiry of the
following individuals: P Fortune, C Peck, S Cutler, N Savory and P Fannon
brief particulars of whom are set out in Schedule 1.
(4) A person shall be deemed to be connected with another if that person is
connected with another within the meaning of section 839 of the Taxes Act
1988.
(5) Words denoting persons shall include bodies corporate and unincorporated
associations of persons.
(6) Subclauses (1) to (5) above apply unless the contrary intention appears.
(7) The headings in this agreement do not affect its interpretation.
2. Sale and purchase of the Shares
(1) Each of the Sellers shall sell with full title guarantee and the Purchaser
shall purchase those of the Shares set opposite the Seller's name in
Schedule 1 together with all rights attaching to them.
(2) Each of the Sellers covenants with the Purchaser as follows:
(a) that he has the right to sell and transfer with full title guarantee
the Shares set opposite his name in Schedule 1 to the Purchaser on the
terms set out in this agreement; and
(b) that on or after Completion he will, at his own cost and expense,
execute and do (or procure to be executed and done by any other
necessary party) all such deeds, documents, acts and things as the
Purchaser may from time to time require in order to vest any of the
Shares set opposite his name in Schedule 1 in the Purchaser to give
full effect to this agreement. For the avoidance of
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doubt the Purchaser shall be solely responsible for the payment of any
stamp duty relating to the sale and transfer of the Shares.
(3) The Shares shall be sold free from all liens, charges, equities and
encumbrances and other rights exercisable by third parties.
(4) The Purchaser shall not be obliged to complete the purchase of any of the
Shares unless the purchase of all the Shares is completed simultaneously in
accordance with this agreement.
3. Consideration
(1) The consideration for the sale of the Shares shall be:
(a) the sum of (Pounds)3,306,580.97 payable by the Purchaser in cash on
Completion;
(b) the issue by Bottomline at Completion to the Sellers of 1,013,333
shares of common stock in the capital of Bottomline;
(c) the issue by Bottomline at Completion of the Warrants to those persons
detailed in column G of schedule 1 for the benefit of the Sellers; and
(d) the issue by Bottomline at Completion of the Loan Notes to those
persons detailed in column H of schedule 1 for the benefit of the
Sellers.
(2) The Sellers shall be entitled to the Consideration Shares, the Cash, the
Loan Notes and the Warrants Consideration in the proportions shown in
columns (C) (D), (E), (F) respectively of Schedule 1.
(3) All payments to be made under this clause shall be made in full without
set-off or counterclaim and free and clear of and without any deduction
whatsoever except as expressly set out in this agreement.
4. Consideration Shares
The Consideration Shares will rank pari passu in all respects with the
common stock of par value US$0.001 in the capital of the Purchaser in issue
at the date of their allotment.
5. SELLERS' Warranties
(1) The Sellers represent and warrant to the Purchaser that:
(a) except as fully and fairly disclosed to the Purchaser in the
Disclosure Letter, each of the statements set out in Schedule 5 is
true and accurate.
(b) all facts set out in Part B of the Disclosure Letter are true and
accurate and fairly presented and nothing has been omitted from the
Disclosure Letter which renders any of those facts incomplete or
misleading.
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(2) Each of the Warranties set out in the several paragraphs of Schedule 5 is
separate and independent and except as expressly provided to the contrary
in this agreement is not limited:
(a) by reference to any other paragraph of Schedule 5; or
(b) by anything in this agreement or the Tax Deed,
and none of the Warranties shall be treated as qualified by any actual or
constructive knowledge on the part of the Purchaser.
(3) Each Seller agrees with the Purchaser (as trustee for each Company and its
employees) to waive any rights or claims which he may have in respect of
any misrepresentation, inaccuracy or omission in or from any information or
advice supplied or given by any Company or its employees in connection with
the giving of the Warranties and the preparation of the Disclosure Letter.
(4) Without prejudice to any other remedy available to the Purchaser or its
ability to claim damages on any basis which is available to it by reason of
any of the Warranties being untrue or misleading or being breached, each
Seller undertakes with the Purchaser (for itself and as trustee for each
Company) that he shall, at the direction of the Purchaser, pay to the
Purchaser, the Company concerned or (in the case of liability to another
person which has not been discharged) the person to whom the liability has
been incurred an amount equal to any deficiency or liability of the Company
concerned which arises from any of the Warranties being untrue, misleading
or breached and which would not have existed or arisen if the Warranty in
question had not been untrue, misleading or breached. For the avoidance of
doubt, nothing in the clause shall relieve the Purchaser of its general
legal obligation to mitigate any loss or damage if any.
(5) Save for Warranty A.4 which shall not be limited in any way, in the absence
of fraud, dishonesty or wilful concealment on the part of the Sellers or
their agents the liability of the Sellers in respect of all claims under
the Warranties and for the Tax Deed:
(a) shall not in aggregate exceed the amount of the First Retention and
Escrow Agreement;
(b) shall not arise (i) for any claim less than (Pounds)5,000; or
(ii) (when aggregated with any liability under the Tax Deed) unless
the amount of all claims made in respect of the Warranties and/or the
Tax Deed (or which would have been made but for the operation of this
sub-clause 5 or the corresponding provision in the Tax Deed) exceeds
(Pounds)50,000; and
(c) shall terminate;
(i) subject to clause 5(6)(b) on the first anniversary of Completion
(the "Tax Term") in respect of those matters set out in Part D
(Taxation)
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of Schedule 5 and any other matters so far as they relate to
taxation; and
(ii) on the first anniversary of Completion in respect of all other
matters contained in Schedule 5,
except in respect of any claim of which notice in writing stating in
reasonable detail the nature of the claim (and if possible the amount
claimed) is given to the Sellers or the Sellers' Solicitors before
that date,
(d) The Liability of the Sellers under Warranty A4 shall not exceed the
Consideration.
(6) (a) The Sellers' Representative undertakes on behalf of all the Sellers to
effect and maintain insurance (the "Insurance") in accordance with the
instructions of the Purchaser but not to be less than for a period to
the third anniversary of Completion (such instructions to be given no
later than 120 days from Completion), with regard to liability to
taxation, arising or incurred in respect of those matters set out in
part D (Taxation) of Schedule 5 and/or the Tax Deed. The parties
hereby agree that the cost of effecting and maintaining such insurance
shall not exceed $250,000, fifty percent of such cost to be borne by
the Sellers and deposited by them in the First Retention and Escrow
Account in accordance with the terms therein and the remaining cost to
be borne by the Purchaser.
(b) In the event that insurance is effected, or if the Sellers'
Representative does not comply with the Purchaser's reasonable
instruction as detailed above, the Tax Term shall increase to the
third anniversary of Completion and the liability of the Sellers under
the taxation warranties and/or the Tax Deed by the amount of the
Insurance or if insurance is not effected due to the reason of the
Seller's Representative failing to comply with the Purchaser's
reasonable instructions by the amount of US$8 million.
(c) For the avoidance of doubt, if insurance is effected and maintained
between Completion and the third anniversary then the Sellers shall
have no liability whatsoever for any claim set out in part D
(Taxation) of Schedule 5 and/or the Tax Deed other than as provided
for and paid (regardless of any excess or other limitations imposed by
the policy relating to the Insurance) in full by the Insurance.
(7) Any payment made by the Sellers in respect of a breach of the Warranties or
a liability under the Tax Deed shall be deemed to be a reduction in the
Consideration.
(8) Except for Warranty A.4 and which shall not be limited in any way, the
Sellers' liability under the Warranties shall be limited as detailed in
Schedule 6.
(9) The liability of the Sellers for Warranty A.4 in Schedule 5 and for the
covenants under clause 2(1), 2(2) and 2(3) is several.
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6. PURCHASER WARRANTIES
(1) The Purchaser is a corporation duly organised, validly existing and in good
standing under the laws of the State of Delaware.
(2) The Purchaser has all requisite power and authority to execute and deliver
this agreement and to perform its obligations hereunder. The execution and
delivery by the Purchaser of this agreement and the consummation by the
Purchaser of the transactions contemplated hereby have been duly and
validly authorised by all necessary corporate action on the part of the
Purchaser.
(3) The Purchaser certifies and represents to the Company that at the time the
Purchaser acquires any of the Shares, the Purchaser will be an "accredited
investor" as defined in Rule 501 of Regulation D promulgated under the
Securities Act. The Purchaser's financial condition is such that it is
able to bear the risk of holding the Shares for an indefinite period of
time and the risk of loss of its entire investment. Without prejudice to
the representations and warranties given by the Sellers herein, the
Purchaser has been afforded the opportunity to ask questions of and receive
answers from the management of the Company concerning this investment and
has sufficient knowledge and experience in investing in companies similar
to the Company in terms of the Company's stage of development so as to be
able to evaluate the risks and merits of its investment in the Company.
7. Tax Deed
The Sellers shall on Completion enter into the Tax Deed in favour of the
Purchaser.
8. Sellers' COVENANTS
(1) Each of P Fortune, C Peck, S Cutler, A McCallum, P Rooke, J Clarke, C.
Conway, N Savory and P Fannon (the "Key Executives") covenants with the
Purchaser (for itself and as trustee for each Company) that he shall not:
(a) for a period of two years from Completion be concerned in any business
carrying on business in the United Kingdom which is competitive or
likely to be competitive with any of the businesses carried on by a
Company at Completion; or
(b) for a period of two years from Completion and except on behalf of a
Company canvass or solicit orders for goods of similar type to those
being manufactured or dealt in or for services similar to those being
provided by any Company at Completion from any person who is at
Completion or has been at any time within the year prior to Completion
a customer of a Company; or
(c) for a period of two years from Completion induce or attempt to induce
any supplier of a Company to cease to supply, or to restrict or vary
the terms of supply, to that Company; or
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(d) for a period of two years from Completion induce or attempt to induce
any director or senior employee of a Company to leave the employment
of that Company; or
(e) make use of or (except as required by law or any competent regulatory
body) disclose or divulge to any third party any information of a
secret or confidential nature relating to the business or affairs of
any Company or its customers or suppliers; or
(f) use or (insofar as he can reasonably do so) allow to be used (except
by the Companies) any trade name used by a Company at Completion or
any other name intended or likely to be confused with such a trade
name.
(2) For the purposes of subclause (1) above:
(a) a Key Executive is concerned in a business if he carries it on as
principal or agent or if:
(i) he is a partner, director, employee, secondee, consultant or
agent in, of or to any person who carries on the business; or
(ii) he has any direct or indirect financial interest (as shareholder
or otherwise) in any person who carries on the business; or
(iii) he is a partner, director, employee, secondee, consultant or
agent in, of or to any person who has a direct or indirect
financial interest (as shareholder or otherwise) in any person
who carries on the business,
disregarding any financial interest of a person in securities which
are listed or traded on any generally recognised market if that
person, the Key Executive and any person connected with him or them
(the "Investors") are together interested in securities which amount
to less than five per cent. of the issued securities of that class and
which, in all circumstances, carry less than five per cent. of the
voting rights (if any) attaching to the issued securities of that
class, and provided that none of the Investors is involved in the
management of the business of the issuer of the securities or of any
person connected with it other than by the exercise of voting rights
attaching to the securities; and
(b) references to a Company include its successors in business;
(c) the restrictions in this clause 8 shall not apply to N Savory or P
Fannon respectively if the respective individual is dismissed by the
Company from its employ for reasons other for gross misconduct.
(3) Each of the restrictions in each paragraph or subclause above shall be
enforceable by the Purchaser independently of each of the others and its
validity shall not be affected if any of the others is invalid.
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(4) If any of those restrictions is void but would be valid if some part of the
restrictions were deleted the restriction in question shall apply with such
modification as may be necessary to make it valid.
(5) The Key Executives acknowledge that the above provisions of this clause are
no more extensive than is reasonable to protect the Purchaser as the
purchaser of the Shares.
(6) If by virtue of any provision of this agreement or of any other agreement
or arrangement of which this agreement forms part, such agreement or
arrangement is subject to registration under the Restrictive Trade
Practices Act 1976 (as amended) and is not a non-notifiable agreement, none
of the parties to such agreement or arrangement who carries on business
within the United Kingdom shall give effect to, or enforce or purport to
enforce the agreement or arrangement in respect of any such provision until
the day after particulars of the agreement or arrangement have been
furnished to the Director General of Fair Trading under section 24 of that
Act.
(7) The Key Executives covenant with the Purchaser to procure that all relevant
records, papers and information (including, without limitation, records and
working papers of any and all accountants of the Company), required by the
Purchaser to prepare and submit the financial statements required by Item 7
of Form 8-K shall be made available to the Purchaser within the period
contemplated by instruction B to such Form.
(8) For the avoidance of doubt and for the purposes of this clause 8 the
"business carried on by the Company at Completion" shall not include the
electro-mechanical business of Checkpoint Security Services Limited carried
on prior to Completion.
9. COMPLETION
(1) Completion shall take place at the offices of the Purchaser's Solicitors
immediately after the signature of this agreement.
(2) At Completion the Sellers shall procure:
(a) the delivery to the Purchaser of:
(i) duly executed transfers in favour of the Purchaser or its
nominee(s) of all the Shares;
(ii) the share certificate(s) representing the Shares (or an express
indemnity in a form satisfactory to the Purchaser in the case
of any found to be missing);
(iii) the certificate of incorporation, common seal, minute books,
statutory registers and share certificate books of each
Company;
(iv) the title deeds and documents relating to the Properties;
(v) the Tax Deed duly executed by the Sellers and the Companies;
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(vi) the resignations of certain directors of each Company as
requested by the Purchaser, in each case acknowledging under
seal that he has no claim against the Companies whether for
loss of office or otherwise;
(vii) the Retention and Escrow Agreements duly executed by the
parties referred to therein;
(viii) a letter from the present auditors of each Company confirming
that had they been requested to resign at completion, they
would have done so by giving a notice which would have
contained a statement in accordance with section 394 of the
Companies Act and that the amount due to them by each Company
on account of fees and expenses does not in aggregate exceed
(Pounds)115,000 together with the undertaking referred to
Warranty B.1(3);
(ix) evidence to the reasonable satisfaction of the Purchaser that
the Nat West Term Loan has been repaid in full by the Company
and that any and all security given in favour of Nat West Bank
in respect of the Nat West Loan by any Company has been
discharged irrevocably and unconditionally by Nat West Bank;
(x) evidence to the reasonable satisfaction of the Purchaser of the
tender and cancellation by the Company against delivery of the
MAM Note and the Shareholder Loan Note in the agreed manner;
(xi) certificates from each of the banks at which the Company and
the Subsidiaries maintain accounts of the amounts standing to
the credit or debit of such accounts at the close of the
previous business week preceding Completion together with a
list of all unpresented cheques and uncleared lodgements which
upon presentation or clearance would be debited or credited to
such accounts; and
(xii) written undertakings from Smith and Williamson to co-operate
with the Purchaser and the Company in the preparation of the
Form 8K more particularly described in clause 8(7),
(xiii) a letter from the Sellers' solicitors concerning the status of
certain documents entered into by the Company and Messrs Rooke
and McCallum.
(b) that a board meeting of each Company is held at which it is resolved
that:
(i) such persons as the Purchaser nominates are appointed as
additional directors and the secretary of that Company; and
(iii) the transfers referred to in paragraph (a) above (subject only
to their being duly stamped) are approved for registration;
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(3) Upon completion of all the matters referred to in subclause (2) above the
Purchaser shall:
(a) pay the Cash Consideration to the Sellers;
(b) issue the Consideration Shares;
(c) issue the Warrants for the benefit of the Seller;
(d) issue the Loan Notes for the benefit of the Sellers; and
(e) deliver to the Sellers' Solicitors a duly executed counterpart of the
Tax Deed.
(4) If for any reason the provisions of subclause (2) above are not fully
complied with the Purchaser may elect (in addition and without prejudice to
all other rights or remedies available to it) to rescind this agreement or
to fix a new date for Completion.
10. GUARANTEES
(1) The Sellers shall procure that on Completion each Company is released from
all guarantees and indemnities given by it other than a guarantee or
indemnity in respect only of the liabilities of any Company.
(2) The Purchaser shall use reasonable endeavours to procure that as from
Completion each Seller is released from all guarantees and indemnities
given by him in respect of obligations of any Company and of which full
particulars are contained in the Disclosure Letter and pending his release
the Purchaser shall indemnify him against all liabilities under those
guarantees and indemnities.
11. BANK ACCOUNTS
The Sellers shall procure that all bank accounts (the "Bank Account")
maintained by the Company shall at Completion contain in unconditionally
cleared funds the sum of (Pounds)360,000 (the "Balance"). If the Bank
Account contains a sum less than the Balance (the "Shortfall") the Sellers
shall on demand pay to the Purchaser in cleared funds a sum equal to the
Shortfall.
12. REGISTRATION RIGHTS
(1) Required Registration of Demand Shares
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Immediately following the Completion, the Sellers who hold in aggregate at
least 270,000 shares (representing 20% of the Consideration Shares) may
request in writing, on no more than two occasions during the first twenty-
four months following the Completion, that the Purchaser register for sale
under the Securities Act of 1933, as amended, (the "Securities Act") a
number of Consideration Shares which shall neither (i) exceed in the
aggregate a number equal to (A) $35,000,000 divided by (B)
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the average last reported sale price per share of the Purchaser's Common
Stock on the Nasdaq National Market for the ten consecutive trading days
preceding the date of this Agreement nor (ii) in either instance be less
than the number equal to (A) $7,000,000 divided by (B) the last reported
sale price per share of the Purchaser's Common Stock on the Nasdaq National
Market for the ten consecutive trading days preceding the date of this
Agreement (the "Demand Shares"). The Purchaser shall file with the
Securities and Exchange Commission (the "SEC"), within 60 days following
receipt of any such request, a registration statement on Form S-3 covering
the resale to the public by the Sellers of the Demand Shares (the "Seller
Registration Statement"). The Purchaser shall use its best efforts to cause
the Seller Registration Statement to be declared effective by the SEC as
soon as practicable, provided that the Seller Registration Statement shall
--------
not be declared effective until after the Purchaser has filed a Form 8-K
covering the transaction contemplated by this Agreement, if such Form 8-K
is required to be filed pursuant to Rule 13a-11 or Rule 15d-11 of the
Securities Exchange Act of 1934, as amended. The Purchaser shall cause the
Seller Registration Statement to remain effective until the date two years
after the date of Completion or such earlier time as all of the Demand
Shares covered by the Seller Registration Statement have been sold pursuant
thereto.
(2) Limitations on Registration Rights
----------------------------------
(a) The Purchaser may, by written notice to the Sellers, (i) delay the
filing or effectiveness of the Seller Registration Statement or (ii)
suspend the Seller Registration Statement after effectiveness and
require that the Sellers immediately cease sales of shares pursuant to
the Seller Registration Statement, in the event that (A) the Purchaser
files a registration statement (other than a registration statement on
Form S-8 or its successor form) with the SEC for a primary public
offering of its securities for acquisition purposes, financing or
otherwise, or (B) the Purchaser is engaged in any activity or
transaction or preparations or negotiations for any activity or
transaction the disclosure of which would be adverse in its reasonable
judgement, if the Purchaser determines in good faith that the public
disclosure requirements imposed on the Purchaser under the Securities
Act in connection with the Seller Registration Statement would require
disclosure of such activity, transaction, preparations or
negotiations; provided that, in such event: (A) Such Sellers shall be
entitled to withdraw any such request made under subclause (1) and, if
withdrawn, such request shall not count as one of the two requests for
required registration of Demand Shares permitted under subclause 1,
and (B) the 12 month period for required registration of Demand Shares
pursuant to subclause 1 shall be tolled for the duration of the
resultant delay or suspension. Notwithstanding anything to the
contrary herein, in any 365-day period, the Purchaser shall not
exercise its rights under this subclause 2(a) to suspend sales of
Demand Shares (i) more than twice or (ii) for a total period in excess
of 120 days.
(b) If the Purchaser delays or suspends the Seller Registration Statement
or requires the Sellers to cease sales of shares pursuant to paragraph
(a) above,
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15
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the Purchaser shall, as promptly as practicable following the
termination of the circumstance which entitled the Purchaser to do so
with the Seller's approval, take such actions as may be necessary to
file or reinstate the effectiveness of the Seller Registration
Statement and/or give written notice to all Sellers authorizing them
to resume sales pursuant to the Seller Registration Statement. If as a
result thereof the prospectus included in the Seller Registration
Statement has been amended to comply with the requirements of the
Securities Act, the Purchaser shall enclose such revised prospectus
with the notice to Sellers given pursuant to this paragraph (b), and
the Sellers shall make no offers or sales of shares pursuant to the
Seller Registration Statement other than by means of such revised
prospectus.
(3) Registration Procedures
-----------------------
(a) In connection with the filing by the Purchaser of the Seller
Registration Statement, the Purchaser shall furnish to each Seller a
copy of the prospectus, including a preliminary prospectus, in
conformity with the requirements of the Securities Act.
(b) The Purchaser shall use its best efforts to register or qualify the
Demand Shares covered by the Seller Registration Statement under the
securities laws of each state of the United States and do any and all
other acts and things which may reasonably be necessary or advisable
to enable the Sellers to consummate the disposition in such
jurisdictions of the Consideration Shares owned by the Sellers;
provided, however, that the Purchaser shall not be required in
-------- -------
connection with this paragraph (b) to qualify as a foreign corporation
or execute a general consent to service of process in any
jurisdiction.
(c) If the Purchaser has delivered preliminary or final prospectuses to
the Sellers and after having done so the prospectus is amended or
supplemented to comply with the requirements of the Securities Act,
the Purchaser shall promptly notify the Sellers and, if requested by
the Purchaser, the Sellers shall immediately cease making offers or
sales of shares under the Seller Registration Statement and return all
prospectuses to the Purchaser. The Purchaser shall promptly provide
the Sellers with revised or supplemented prospectuses and, following
receipt of the revised or supplemented prospectuses, the Sellers shall
be free to resume making offers and sales under the Seller
Registration Statement.
(d) The Purchaser shall otherwise use all reasonable commercial efforts to
comply with all applicable rules and regulations of the SEC, and make
available to the Sellers, as soon as reasonably practicable, an
earning statement covering the period of at least 12 months beginning
with the first day of the Purchaser's first full calendar quarter
after the effective date of the Seller Registration Statement, which
earnings statement shall satisfy the provisions of Section 11(a) of
the Securities Act and Rule 158 thereunder.
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16
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(e) The Purchaser shall pay the expenses incurred by it in complying with
its obligations under this clause 11, including all registration and
filing fees, exchange listing fees, fees and expenses of counsel for
the Purchaser, fees and expenses of accountants for the Purchaser and
reasonable fees and expenses of one counsel retained by the Sellers
who are not employees of the Company immediately prior to the
Completion, for the purposes of rendering legal opinion on behalf of
such non-employee Sellers in connection with any underwritten
registration of Demand Shares or Incidental Registration, but
excluding (i) any brokerage fees, selling commissions or underwriting
discounts incurred by the Sellers in connection with sales under the
Seller Registration Statement and (ii) the fees and expenses of any
counsel retained by Sellers, other than as referred to in this clause
11(e).
(4) Requirements of Sellers
-----------------------
The Purchaser shall not be required to include any Demand Shares in
the Seller Registration Statement unless the Seller owning such
shares furnishes to the Purchaser in writing such information
regarding such Seller and the proposed sale of Demand Shares by such
Seller as the Purchaser may reasonably request in writing in
connection with the Seller Registration Statement or as shall be
required in connection therewith by the SEC or any state securities
law authorities.
(5) Incidental Registration of Consideration Shares
-----------------------------------------------
(a) Whenever the Purchaser proposes to file a registration statement
(other than the Seller Registration Statement filed pursuant to
subclause 1) at any time and from time to time until three years
from the date of the Completion, it will, prior to such filing,
give prompt written notice to the Sellers of its intention to do
so; provided, that no such notice need be given if no
Consideration Shares are to be included therein as a result of a
determination of the managing underwriter pursuant to subclause
5(b). Upon the written request of any Sellers given within 20
days after the Purchaser provides such notice (which request
shall state the intended method of disposition of such
Consideration Shares), the Purchaser shall use its best efforts
to cause all Consideration Shares which the Purchaser has been
requested by such Sellers to register to be registered under the
Securities Act to the extent necessary to permit their sale or
other disposition in accordance with the intended methods of
distribution specified in the request of such Sellers; provided
that the Purchaser shall have the right to postpone or withdraw
any registration effected pursuant to this subclause 5 without
obligation to the Sellers.
(b) If the registration for which the Purchaser gives notice pursuant to
subclause 5(a) is a registered public offering involving an
underwriting, the Purchaser shall so advise the Sellers as a part of
the written notice given pursuant to subclause 5(a). In such event,
the right of the Sellers to include their Consideration Shares in such
registration pursuant to subclause 5 shall be
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<PAGE>
17
________________________________________________________________________________
conditioned upon the Sellers' participation in such underwriting on
the terms set forth herein. Should any Sellers propose to distribute
the Consideration Shares through such underwriting, such Sellers shall
enter into an underwriting agreement in customary form with the
underwriter or underwriters selected for the underwriting by the
Purchaser. Notwithstanding any other provision of this subclause 5, if
the managing underwriter advises the Purchaser in good faith that the
inclusion of all shares requested to be registered would adversely
affect the offering, the Purchaser may limit the number of
Consideration Shares to be included in the registration and
underwriting. The Purchaser shall so advise all holders of
Consideration Shares requesting registration, and the number of shares
that are entitled to be included in the registration and underwriting
shall be allocated in the following manner. The securities of the
Purchaser held by holders other than the Sellers and other holders of
securities of the Purchasers who are entitled, by contract with the
Purchaser, to have securities included in such registration ("Other
Holders") shall be excluded from such registration and underwriting to
the extent deemed advisable by the managing underwriter, and, if a
further limitation on the number of shares is required, the number of
shares that may be included in such registration and underwriting
shall be allocated among the Sellers and Other Holders requesting
registration in proportion, as nearly as practicable, to the
respective number of shares of Common Stock (on an as-converted basis)
which they held at the time the Company gives the notice specified in
subclause 5(a); provided that such registration rights of the Sellers
and Other Holders shall be subordinate to the written registration
rights of certain additional holders of securities of the Purchaser
outstanding as of the date hereof. If the Sellers or any Other Holder
requesting registration would thus be entitled to include more
securities than such holder requested to be registered, the excess
shall be allocated among the Sellers and Other Holders requesting
registration pro rata in the manner described in the preceding
sentence. If the Sellers requesting registration disapprove of the
terms of any such underwriting, such Sellers may elect to withdraw
therefrom by written notice to the Purchaser, and any Consideration
Shares or other securities excluded or withdrawn from such
underwriting shall be withdrawn from such registration.
(6) Indemnification
---------------
(a) The Purchaser agrees to indemnify and hold harmless each Seller whose
shares are included in any registration statement filed with the SEC
pursuant to this clause 11 (the "Registration Statement") against any
losses, claims, damages, expenses or liabilities to which such Seller
may become subject by reason of any untrue statement of a material
fact contained in the Registration Statement, prospectus, preliminary
prospectus or any amendment or supplement thereto, or any omission to
state therein a fact required to be stated therein or necessary to
make the statements therein not misleading, except insofar as such
losses, claims, damages, expenses or liabilities arise out of or are
based upon information furnished to the Purchaser by or on behalf of a
Seller in writing for use in the Registration Statement. The
Purchaser shall have the right to
________________________________________________________________________________
<PAGE>
18
________________________________________________________________________________
assume the defense and settlement of any claim or suit for which the
Purchaser may be responsible for indemnification under this subclause
6.
(b) The Sellers agree to indemnify and hold harmless the Purchaser against
any losses, claims, damages, expenses or liabilities to which the
Purchaser may become subject by reason of any untrue statement of a
material fact contained in the Registration Statement, prospectus,
preliminary prospectus or any amendment or supplement thereto, or any
omission to state therein a fact required to be stated therein or
necessary to make the statements therein not misleading, if the
statement or omission was made in reliance on and in conformity with
information relating to the Sellers furnished in writing to the
Purchaser by or on behalf of the Sellers for use in connection with
the preparation of the Registration Statement. Provided that any such
Seller's obligation to indemnify under this sub clause 6 (b) shall be
individual, rather than joint and several, and shall be limited to the
net amount of proceeds received by such Seller from the sale of
Consideration Shares pursuant to such Registration Statement.
(7) Assignment of Rights
--------------------
A Seller may not assign any of its rights under this clause 11 except in
connection with the transfer of some or all of his, her or its
Consideration Shares to a child or spouse, or trust for their benefit or,
in the case of a partnership, to the partners of such partnership pursuant
to a pro rata distribution, and in the case of MAM to its subsidiary,
holding company or other affiliate provided each such transferee agrees in
---------
a written instrument delivered to the Purchaser to be bound by the
provisions of this clause 11.
(8) Investment and Experience
-------------------------
Each Seller will hereby be deemed to have represented and agreed as follows
(terms used herein that are defined in Regulation S under the Securities
Act are used as defined therein):
(a) The Seller (i) is a non-U.S. person outside the United States
acquiring the Consideration Shares for its own account, and (ii) is
aware that such Consideration Shares are restricted securities and
that such Consideration Shares may not be deposited into any
unrestricted depositary facility in respect of the Shares established
or maintained by a depositary bank, unless at the time of deposit such
Consideration Shares are eligible for transfer in accordance with Rule
144(k) under the Securities Act.
(b) The Seller understands that the Consideration Shares have not been
registered under the Securities Act and may not be offered, resold,
pledged or otherwise transferred except (i)(A) in an offshore
transaction complying with Rule 903 or Rule 904 of Regulation S or (B)
pursuant to an exemption from registration under the Securities Act
provided by Rule 144 thereunder (if available) and (ii)
________________________________________________________________________________
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19
________________________________________________________________________________
in accordance with all applicable securities laws of the states of the
United States. No representation can be made as to the availability of
the exemption provided by Rule 144 for resales of the Consideration
Shares.
(c) If the Seller is acquiring Consideration Shares for the account of
another person, it has full power to make the foregoing
acknowledgements, representations and agreements on behalf of each
such account.
(d) The Seller acknowledges that the Purchaser, its affiliates and others
will rely on the truth and accuracy of the foregoing acknowledgements,
representations and agreements.
Any resale or other transfer, or attempted resale or other transfer, made
other than in compliance with the above-stated restrictions shall not be
recognized by the Purchaser.
Due to the restrictions on the offer and sale of securities in the United
States, under U.S. securities laws and regulations, there can be no
assurance that any offer of pre-emptive right will be open to U.S. holders
of Consideration Shares.
The Consideration Shares will bear a legend to the following effect, unless
the Purchaser determines otherwise in compliance with applicable law:
THE SHARES OF COMMON STOCK OF BOTTOMLINE TECHNOLOGIES (DE), INC.
REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"). THESE SECURITIES MAY NOT
BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED (NOR MAY IT
OTHERWISE HEDGE ITS EXPOSURE WITH RESPECT TO THE SHARES) EXCEPT (A)(1)
IN AN OFFSHORE TRANSACTION COMPLYING WITH RULE 903 OR RULE 904 OF
REGULATION S UNDER THE SECURITIES ACT, OR (2) PURSUANT TO AN EXEMPTION
FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDE BY RULE 144
THEREUNDER (IF AVAILABLE), AND (B) IN EACH CASE IN ACCORDANCE WITH ALL
APPLICABLE SECURITIES LAWS OF THE UNITED STATES. NO REPRESENTATION
CAN BE MADE AS TO THE AVAILABILITY OF THE EXEMPTION PROVIDED BY RULE
144 UNDER THE SECURITIES ACT FOR RESALE OF THE SHARES.
13. Announcements
No party shall make or permit any person connected with him to make any
announcement concerning this sale and purchase or any ancillary matter
before, on or after Completion except as required by law or any competent
regulatory body or with the written approval of the other parties, such
approval not to be unreasonably withheld or delayed.
________________________________________________________________________________
<PAGE>
20
________________________________________________________________________________
14. NOTICES
(1) Any notice or other document to be served under this agreement may be
delivered or sent by first class recorded delivery post or telex or
facsimile process to the party to be served at his address appearing in
this agreement or at such other address as he may have notified to the
other parties in accordance with this clause 13.
(2) Any notice or document shall be deemed to have been served:
(a) if delivered, at the time of delivery; or
(b) if posted, at 10.00 a.m. on the second business day after it was put
into the post; or
(c) if sent by telex or facsimile process, at the expiration of 2 hours
after the time of despatch, if despatched before 3.00 p.m. on any
business day, and in any other case at 10.00 a.m. on the business day
following the date of despatch.
(3) In proving service of a notice or document it shall be sufficient to prove
that delivery was made or that the envelope containing the notice or
document was properly addressed and posted as a prepaid first class
recorded delivery letter or that the telex or facsimile message was
properly addressed and despatched as the case may be.
15. RESOLUTIONS AND WAIVERS
(1) In relation to each Company the Sellers shall procure the convening of all
meetings, the giving of all waivers and consents and the passing of all
resolutions as are necessary under the Companies Act 1985, its articles of
association or any agreement or obligation affecting it to give effect to
this agreement.
(2) Each Seller waives (and shall procure the waiver by his nominee(s) of) all
rights of pre-emption which he (or such nominee(s)) may have (whether under
the Company's articles of association or otherwise) in respect of the
transfer to the Purchaser or its nominee(s) of the Shares or any of them.
(3) For so long after Completion as he remains the registered holder of any of
the Shares each Seller shall hold them and any distributions, property and
rights deriving from them in trust for the Purchaser and shall deal with
the Shares and any distributions, property and rights deriving from them as
the Purchaser directs; in particular, each Seller shall exercise all voting
rights as the Purchaser directs or shall execute an instrument of proxy or
other document which enables the Purchaser or its representative to attend
and vote at any meeting of the Company.
16. SALE OF ELECTRO-MECHANIC, MEXICAN AND FRENCH BUSINESSES
16.1 The Sellers shall indemnify and keep the Purchaser fully indemnified
against all losses, liabilities (including any Liability to Taxation
as defined in the Tax Deed), costs and expenses incurred by the
Purchaser or any Company in respect of any claims, demands or
actions against the Purchaser or any
________________________________________________________________________________
<PAGE>
21
________________________________________________________________________________
Company howsoever arising in relation to the:
(a) Electro-Mechanic Sale Agreement; and
(b) Mexican Sale Agreement; and
(c) French Sale Agreement.
16.2 For the avoidance of doubt, the indemnity given under this clause 15
shall be subject in all respects to the warranty and indemnity
limitation provisions of clause 5 (save for clause 5(b)) and schedule
6 of this agreement.
17. GENERAL
(1) Each of the obligations, Warranties and undertakings set out in this
agreement which is not fully performed at Completion will continue in force
after Completion.
(2) Unless otherwise expressly stated all payments to be made under this
agreement shall be made in US$ to the party to be paid as follows:
(a) to the Sellers by delivery in immediately available funds to the
account of the Sellers' Solicitors at:
bank: Royal Bank of Scotland, Birmingham Colmore Road
Branch
sort code: 16-13-18,
account number: 10156241; and
(b) to the Purchaser by delivery in immediately available funds to the
account of the Purchaser's Solicitors at:
bank: Barclays Bank plc, 155 Bishopsgate Branch
sort code: 20-77-67
account number: 63091888
(3) The receipt of the Sellers' Solicitors for any sum or document to be paid
or delivered to a Seller will discharge the Purchaser's obligation to pay
or deliver it to that Seller.
(4) If the Shares are sold or transferred after Completion the benefit of each
of the obligations, Warranties and undertakings undertaken or given by any
of the Sellers may be assigned to the purchaser or transferee of the Shares
who may enforce them as if he had been named in this agreement as the
Purchaser.
(5) Subject to subclause (4) above none of the rights or obligations under this
agreement may be assigned or transferred without the prior written consent
of all the parties.
(6) Where any obligation, representation, warranty or undertaking in this
agreement is expressed to be made, undertaken or given by two or more of
the Sellers they shall be jointly and severally responsible in respect of
it.
________________________________________________________________________________
<PAGE>
22
________________________________________________________________________________
(7) The Purchaser may release or compromise in whole or in part the liability
of any of the Sellers under this agreement or grant any time or other
indulgence without affecting the liability of any other of the Sellers.
(8) Each party shall pay the costs and expenses incurred by him in connection
with the entering into and completion of this agreement.
(9) This agreement may be executed in any number of counterparts, all of which
taken together shall constitute one and the same agreement and any party
may enter into this agreement by executing a counterpart.
(10) No variation of this agreement or any of the document in the agreed form
shall be valid unless it is in writing and signed by or on behalf of each
of the parties to this agreement and the Sellers shall irrevocably appoint
MAM as their sole representative on their behalf or such other person as
the Seller may nominate from time to time in writing.
18. WHOLE AGREEMENT
(1) This agreement and the documents referred to in it contain the whole
agreement between the parties relating to the transactions contemplated by
this agreement and supersede all previous agreements between the parties
relating to these transactions.
(2) The Sellers acknowledge that the Purchaser has not made any representations
or warranties which have caused the Sellers to agree to accept the
Consideration Shares or on which the Sellers have placed any reliance in
agreeing to accept the Consideration Shares.
(3) Each of the parties acknowledges that in agreeing to enter into this
agreement he has not relied on any representation, warranty, collateral
contract or other assurance (except those set out in this agreement and the
documents referred to in it) made by or on behalf of any other party before
the signature of this agreement. Each of the parties waives all rights and
remedies which, but for this subclause, might otherwise be available to him
in respect of any such representation, warranty, collateral contract or
other assurance, provided that nothing in this subclause shall limit or
exclude any liability for fraud.
(4) A person who is not party to this agreement shall have no right under the
Contract (Rights of Third Parties) Act 1999 to enforce any term of this
agreement. This clause does not affect any right or remedy of any person
which exists or is available otherwise than pursuant to that Act.
19. GOVERNING LAW
(1) This agreement is governed by and shall be construed in accordance with
English law.
(2) Each Seller submits to the non-exclusive jurisdiction of the English courts
for all purposes relating to this agreement.
________________________________________________________________________________
<PAGE>
23
________________________________________________________________________________
AS WITNESS the hands of the Sellers and of a duly authorised officer of the
Purchaser on the date which appears first on page 1.
________________________________________________________________________________
<PAGE>
24
________________________________________________________________________________
Executed by:
1. Andrew Colin McCallum
2. Catherine McCallum
3. Danielle McCallum
4. Oliver Glenn
5. Andrew Colin McCallum and Catherine McCallum as Trustees of Charlotte
McCallum
6. Andrew Colin McCallum and Catherine McCallum as Trustees of Ashleigh Glenn
7. Richard McCallum
8. Peter Kenneth Rooke
9. Pamela Rooke
10. Peter Kenneth Rooke and Pamela Rooke as Trustees of Thomas Penn Rooke
11. Simon Thomas Peter Rooke
12. James Daniel Wood
13. John A Clarke
All the above acting by )
ROD THOMAS their duly ) /s/ Roderick Thomas
authorised attorney )
Witness signature /s/ Jonathan Close
Witness full name Jonathan Close
Witness address 35 Station Road
Harborne
Birmingham
Witness occupation Solicitor
________________________________________________________________________________
<PAGE>
25
________________________________________________________________________________
Executed by:
1. Christopher Wilson Peck
2. Tracy Jane Peck
3. Joanne Barbara Fortune
4. Peter Stanley Fortune and Joanne Barbara Fortune as Trustees of Harriet
Joanne Louise Fortune
5. Peter Stanley Fortune and Joanne Barbarra Fortune as Trustees of James Pete
Matthew Fortune
6. Stephen Joseph Cutler
7. Kathryn Elizabeth Cutler
8. John Christopher Shore
9. Sharon Taylor
10. Kevin Michael Hart
11. Paul John Fannon
12. Timothy Roger John Miller
13. Simon Turley
14. Stewart James Miller
15. Nigel Kevin Savory
16. David Graham Campion
17. Martin John Weller
18. Simon Morton
19. Ian George Whitney
20. Simon David Josephs
21. Robert Bailey
22. Edward Charles Adshead-Grant
________________________________________________________________________________
<PAGE>
26
________________________________________________________________________________
23. Paul Lee Simpson
24. Ian Frank Armstrong
25. Simon John Huntley
26. Keith William Adams
27. Margaret Luzanycia
28. Steven Andrew Crosson-Smith
29. Michael Hassan
30. Sally Joy Bailey
31. Alistair Ian McQuade
32. Paul Gordon
33. Simon Collinson
34. Alister James Humphreys
35. Edward Pryor
36. Richard James Harris
37. Peter John Dale
38. Anthony Steven White
39. Ian Raymond Wheeler
40. Nathan Jackson
41. Richard Alan Dewar
42. Ryan Jackson
43. Douglas Wilkinson
44. Lisa Kathryn Carmichael
45. Paul Candahar Nott
46. Ian Greville Jones
47. Andrew Peter Ryan
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<PAGE>
27
________________________________________________________________________________
48. Philip Taylor
49. Patrick Lawerence Reeves
50. Peter Michael Phillips
51. Richard Gordon Machin
52. David Charles Jewell
53. Richard David Hatton
54. Michelle Lees
55. Julie Mary McGuire
56. Kerry Elizabeth Hanna
57. Candace Melanie Pridgeon
58. Ceri Elizabeth Hancox
59. Zoe Ann Kirby
60. Carlos Hugo Esperanca
61. Clive Kenneth Griffiths
62. Mark John Overton
63. Andre Tather
64. Richard Alan Baldock
65. Tim Ager
66. Philip David Charnick
67. Benjamin Toby Clancy
68. Elaine Duncan
69. Harvey Durrant
70. Janet Edwina Mary Hester
71. Wayne Jones
72. James Richard Malyon
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<PAGE>
28
________________________________________________________________________________
73. Alexis McArdle
74. Richard Anthony Parry
75. Gareth Rory Priest
76. Andrew James Scarborough
77. Matthew Andrew Shaw
78. Anthony James Skinner
79. Christopher John Conway
80. Wendy Crosson Smith
81. Anna Elizabeth Webb
82. Vanda Jane Fannon
All the above acting by )
PETER STANLEY ) /s/ P. Fortune
FORTUNE their duly )
authorised attorney )
Witness signature /s/ Jonathan Close
Witness full name Jonathan Close
Witness address 35 Station Road
Harborne
Birmingham
Witness occupation Solicitor
________________________________________________________________________________
<PAGE>
29
________________________________________________________________________________
Executed by:
1. Rowan Nominees Limited c/o Mercury Asset Management Limited
2. Rowan Nominees Limited a/c RR c/o Mercury Asset Management Limited
/s/ Trevor Bailey
All the above acting by )
ROD THOMAS their duly ) /s/ Roderick Thomas
authorised attorney )
Witness signature /s/ Jonathan Close
Witness full name Jonathan Close
Witness address 35 Station Road
Harborne
Birmingham
Witness occupation Solicitor
Executed by PETER )
FORTUNE in the ) /s/ P. Fortune
presence of: )
Witness signature /s/ Jonathan Close
Witness full name Jonathan Close
Witness address 35 Station Road
Harborne
Birmingham
Witness occupation Solicitor
________________________________________________________________________________
<PAGE>
30
_______________________________________________________________________________
BOTTOMLINE TECHNOLOGIES (de), INC.
By: /s/ Daniel M. McGurl
--------------------
Name: Daniel M. McGurl
Title: President & CEO
