Mr. Joseph L.
Mullen
Dear
Joe:
This letter agreement (the
“Letter Agreement”) sets forth the terms on which you
and Bottomline Technologies (de), Inc., a Delaware corporation (the
“Company”), agree that you will be engaged by the
Company. Except as provided in Section 4 below, from
this date forward this Letter Agreement shall supersede and replace
your Letter Agreement dated November 18, 2006 and your Amended and
Restated Employment Agreement, dated as of November 21, 2002, as
amended by your letter agreement dated as of September 30, 2005 (as
amended, the “Employment Agreement”). This
Letter Agreement shall not in any manner whatsoever affect your
position as Chairman of the Board of Directors of the
Company.
1. Role and
Period . The Company agrees to retain your services
as Chairman for (a) $125,000 per year for the period beginning on
November 16, 2008 and ending on November 16, 2009 and (b) $100,000
per year for each year during the period beginning on November 17,
2009 and ending on November 16, 2011, at which time your role and
services will be re-evaluated. In this capacity you will
(i) perform the duties of the Chairman of the Board of Directors
during any periods you are appointed to such position by the
Company’s Board of Directors and (ii) be available to the
Company as required or requested by management for services
including strategy analysis, merger and acquisition evaluation and
analysis, strategic partnerships, executive coaching and other
consultative services. In addition, you shall be
entitled to receive equity compensation, currently 3,000 shares of
stock of the Company with respect to the services provided in the
Company’s 2008 fiscal year and 3,000 shares of stock of the
Company (or such other equity award as shall be made to
non-employee directors) on November 18, 2008 and each year
thereafter on the date of the annual meeting of stockholders
provided that you are serving as a director of the Company during
such periods, in each case vesting at the earlier of the one year
anniversary of the grant date or the next annual meeting of
stockholders. In connection with your contemplated
role under this paragraph 1, you agree to perform such services and
undertake such duties and responsibilities to and for the Company
as may be reasonably requested from time to time by the
Company.
2. Expenses
. The Company shall reimburse you for all reasonable
business expenses incurred or paid by you in connection with the
performance of your services hereunder, in accordance with expense
reimbursement policies of the Company and your presentation of
appropriate documentation.
3.1 Either you or the
Company may terminate this agreement upon 30 days’ prior
written notice to the other party or the Company may do so
effective immediately upon written notice to you for
“cause” (as defined below).
3.2 In the event this
agreement is terminated by the Company other than for
“cause,” you shall be entitled to be paid (1) in a lump
sum the full amount due you with respect to the remainder of the
term described in Section 1 above, and (2) for any expenses
incurred prior to the termination. In the event of your
termination by the Company for “cause” or termination
at your election, you shall be entitled to payment for services
performed and expenses paid or incurred prior to the effective date
of termination. Such payments shall constitute full
settlement of any and all claims by you of every description
against the Company with respect to services rendered during the
contract period.
3.3 “
Cause ” shall mean you (A) have been convicted of a
felony involving dishonesty, fraud, theft or embezzlement or any
other felony or (B) have breached any of your material obligations
under any agreement between you and the Company which imposes
confidentiality, proprietary information, assignment of inventions,
non-competition or similar obligations on you, as may be in effect
from time to time.
4. Stock Options
and Restricted Stock . In the event that, prior to
November 21, 2011:
(a) a Change of Control (as
defined in the Employment Agreement) shall occur, your right to
exercise all unvested stock options shall become immediately
exercisable in full and all vesting restrictions applicable to
restricted stock awards shall lapse in full; and
(b) your engagement with the
Company is terminated in the manner described in Section 6.2, 6.3
or 6.4 of your Employment Agreement and pursuant to the terms of
such provision, Section 6.5 of your Employment Agreement would have
applied, you shall have a period of two years (or the remainder of
the applicable option term if less than two years) after the date
of such termination to exercise any Stock Options; provided,
however, that such two year period of exercisability shall not
apply to any grant of stock options granted prior to June 1, 2001
with an exercise price of less than $6.76 per share.
In addition, the provisions of
Section 16 of the Employment Agreement shall remain in effect
through November 21, 2011.
5. Vesting
. You shall retain any and all rights you
have under the Employment Agreement through November 21, 2011 with
respect to the acceleration of any restricted stock and unvested
options and the related exercise period solely by reason of any
termination of your employment other than as a result of a
termination by you of your employment that does not constitute an
Involuntary Termination (as defined in the Employment
Agreement). In addition, the provisions of Section 16 of
the Employment Agreement shall remain in effect through November
21, 2011.
