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As filed with the Securities and Exchange Commission on November 17, 2000
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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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)
2000 Stock Incentive Plan
2000 Employee Stock Purchase Plan
(Full Title of the Plans)
Daniel M. McGurl
Chairman of the Board of Directors 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)
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CALCULATION OF REGISTRATION FEE
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Title of Each Proposed Proposed
Class of Amount to be Maximum Maximum Amount of
Securities to be Registered Offering Price Aggregate Registration Fee
Registered Per Share Offering Price
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Common Stock
$.001 par value 2,100,000(1) $33.28(2) $69,888,000(2) $18,450.43(2)
per share shares
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(1) Consists of (i) 1,350,000 shares issuable under the 2000 Stock Incentive
Plan and (ii) 750,000 shares issuable under the 2000 Employee Stock
Purchase Plan.
(2) 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 sale prices of the
common stock as reported on The Nasdaq National Market on November 13,
2000.
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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 2000 Stock Incentive Plan and the 2000 Employee Stock
Purchase 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:
(1) The registrant's latest annual report filed pursuant to Section 13(a)
or 15(d) of the Exchange Act, or the latest prospectus filed pursuant to Rule
424(b) of the Securities Act of 1933, as amended (the "Securities Act"), that
contains audited financial statements for the registrant's latest fiscal year
for which such statements have been filed.
(2) 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 registrant document
referred to in (1) above.
(3) 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
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modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this registration statement.
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.
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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. The registrant has entered into letter
agreements with certain of its officers and directors confirming its undertaking
to provide indemnification as contemplated by Section 145 under certain
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.
(1) The registrant hereby undertakes:
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(a) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) to include any prospectus required by Section 10(a)(3) of the
Securities Act; (ii) to reflect in the prospectus any facts or
events arising after the effective date of the registration
statement, or the most recent post-effective amendment thereof,
which, individually or in the aggregate, represent a fundamental
change in the information set forth in the registration
statement; and (iii) 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.
(b) 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.
(c) 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.
(2) 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.
(3) 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,
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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.
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 17th day
of November, 2000.
BOTTOMLINE TECHNOLOGIES (de), INC.
By: /s/ Daniel M. McGurl
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Daniel M. McGurl
Chief Executive Officer
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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 John A.
Burgess 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 17th day of November, 2000.
Signature Title
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/s/ Daniel M. McGurl Chairman of the Board and Chief Executive Officer
--------------------------- (Principal Executive Officer)
Daniel M. McGurl
/s/ Joseph L. Mullen President, Chief Operating Officer and Director
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Joseph L. Mullen
/s/ Robert A. Eberle Executive Vice President, Chief Financial Officer,
--------------------------- Secretary, Treasurer and Director (Principal
Robert A. Eberle Financial and Accounting Officer)
/s/ James L. Loomis Director
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James L. Loomis
/s/ Joseph L. Barry, Jr. Director
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Joseph L. Barry, Jr.
/s/ Dianne Gregg Director
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Dianne Gregg
/s/ James W. Zilinski Director
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James W. Zilinski
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INDEX TO EXHIBITS
Number Description
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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 Ernst & Young, LLP independent
auditors
23.2 Consent of Ernst & Young, independent
auditors
23.3 Consent of Smith & Williamson, independent
auditors
23.4 Consent of Hale and Dorr LLP
(included in Exhibit 5.1)
24.1 Power of attorney (included in the
signature pages of this registration
statement)
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(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.
