EXHIBIT 10.5


 


EXECUTION
version


 


 


RESTRICTIVE COVENANT AGREEMENT


 
This
Restrictive Covenant Agreement is made as of September 28, 2022 (this “Agreement”) by and among (i) Bullseye
FinCo, Inc., a Delaware corporation (“Parent”) and (ii) the undersigned Restricted Parties (each, a “Restricted
Party” and collectively, the “Restricted Parties”). Parent and the Restricted Parties are sometimes
referred to herein as the “Parties”. Capitalized terms used but not otherwise defined herein shall have the
meanings ascribed to such terms in the Merger Agreement (as defined below).







 


RECITALS


 


WHEREAS, this Agreement
is being entered into in connection with that certain Agreement and Plan of Merger, dated as of the date hereof, by and among BTRS Holdings
Inc., a Delaware corporation (the “Company”), Parent and Bullseye Merger Sub, Inc., a Delaware corporation and
wholly-owned subsidiary of Parent (“Merger Sub”) (as amended, restated, supplemented or otherwise modified from
time to time, the “Merger Agreement”), pursuant to which Merger Sub shall be merged with and into the Company,
with the Company as the surviving entity (collectively with the other transactions contemplated by the Merger Agreement, the “Transaction”);


 


WHEREAS, the Restricted
Parties are shareholders of the Company and will receive substantial consideration upon, and will enjoy substantial other benefits from,
the consummation of the Transaction;


 


WHEREAS, the Restricted
Parties have a representative on the board of directors of the Company; and


 


WHEREAS, as an inducement
for the Company, Parent and Merger Sub to enter into the Merger Agreement, the Restricted Parties have agreed to enter into this Agreement
pursuant to which the Restricted Parties will agree to certain restrictive covenants, effective as of the Closing.


  


NOW, THEREFORE, in
consideration of the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the Parties hereby agree as follows:


 


AGREEMENT


 


1.       Restrictive
Covenants.


 


(a)       Non-Disclosure.


 


(i)                
The Restricted Parties shall not, and shall cause their respective Affiliates (as defined below) not to, disclose any Confidential
Information (as defined below), in whole or in part, to any other Person, or use the Confidential Information for their own account or
for the benefit of any other Person, in each case, without the prior written consent of Parent, except (A) to the extent permitted by
Section 1(a)(iii), (B) as contemplated by, or in connection with enforcing their rights under, the Merger Agreement or (C) to investors
or potential investors, in each case provided such persons are party to a customary non-disclosure agreement, in affiliated investment
funds or otherwise in 


  




    	 



    	 



    

connection with the Restricted Parties’ respective Affiliates’ ordinary course fund raising, marketing,
informational or reporting activities.


 


(i)                
“Confidential Information” means (X) any and all documents and information concerning the Company or
any of its Subsidiaries (collectively, the “Group Companies”) and their respective businesses and (Y) the Merger
Agreement and any other Transaction Documents or any information, including the terms, conditions or any other facts, relating to the
Merger Agreement, any other Transaction Documents or the Transactions, except to the extent that such information (A) is or becomes
available to the public (other than as a result of a breach of this Agreement (or any agreement relating to confidential treatment of
information) by the Restricted Parties, their respective Affiliates or any of their respective representatives), (B) is or becomes available
to the Restricted Parties or any of their respective Affiliates or representatives on, to the knowledge of such Restricted Party or such
Affiliate or representative (following reasonable inquiry), a non-confidential basis following the Closing from a source other than Parent,
any Group Company or any of their respective representatives or Affiliates or (C) is or was independently developed by the Restricted
Parties or any of their respective Affiliates or representatives without use of or reference to Confidential Information.


 


(ii)             
If any of the Restricted Parties or their respective Affiliates or representatives are compelled or required by, or requested in
connection with, Applicable Law or other legal process, or by a bank regulatory authority, to disclose any Confidential Information, the
applicable Restricted Party shall, to the extent legally permitted under Applicable Law, notify Parent, as promptly as practicable, of
such request or requirement so that Parent may seek an appropriate protective order or waive compliance with the provisions of this Agreement,
and/or take any other mutually agreed action. Such Restricted Party, to the extent so reasonably requested by Parent shall reasonably
cooperate with Parent in any actions they may choose to take in seeking to prevent or limit disclosure. If, in the absence of a protective
order or the receipt of a waiver hereunder, any of the Restricted Parties or their respective Affiliates or representatives are compelled
or required by Applicable Law or other legal process, or by a bank regulatory authority, to disclose any Confidential Information, such
Restricted Party and such Affiliates and representatives may disclose only that portion of the Confidential Information which it or they
are advised by outside counsel is legally required to be disclosed, and such Restricted Party (or such Affiliates or representatives,
as applicable) will exercise its commercially reasonable efforts to obtain reliable assurance that confidential treatment will be accorded
such information; provided, that such disclosure shall not change the status of such information as Confidential Information. Notwithstanding
the foregoing, the Restricted Parties and their respective Affiliates and representatives shall not be required to give notice to Parent
or to comply with any other obligations of this Section 1(a)(iii), and shall not be prohibited from disclosing Confidential Information
to a regulatory authority, self-regulatory authority, bank examiner or stock exchange in connection with a routine inquiry by such regulatory
authority, self-regulatory authority, bank examiner or stock exchange not targeting any of the Group Companies (or targeting any of the
Group Companies to the extent providing such notice is not legally permitted).


  


(i)                
Notwithstanding anything herein to the contrary, none of the terms “representative”, “Affiliate” or “portfolio
company”, when used with respect to the Restricted Parties, shall include, and the provisions of this Section 1(a) shall
not apply to, 





 




    	 



    	 



    

any of the Restricted Parties’ respective Affiliates or any of their Affiliates’ operating or portfolio companies
or affiliated investment funds that (A) do not directly or indirectly receive or have access to, or have not directly or indirectly received
or have access to, Confidential Information from or on behalf of the Restricted Parties and (B) do not directly or indirectly act at the
direction or encouragement of the Restricted Parties with respect to the matters contemplated hereby.


 


(b)              
Employee Non-Solicit/Hire. During the period commencing at the Closing and ending on the two-year anniversary thereof, the
Restricted Parties shall not, directly or indirectly, in whole or in part, either on behalf of any Restricted Party or on behalf of any
other Person, solicit for employment or engagement or employ or engage (as an independent contractor) any senior-level employees (to be
defined as those employees with the title of Vice-President or any other, senior title) of any of the Group Companies; provided,
that the Restricted Parties shall not be restricted from (x) soliciting for employment or engagement any such employees pursuant to general
solicitations (whether through advertisements on any medium or through the efforts of a search firm or otherwise) of employment or engagement
not specifically directed at such Persons (so long as no such employee is hired or engaged as a result thereof), or (y) soliciting for
employment or engagement or employing or engaging any such employees whose employment or engagement was terminated by Parent or any of
its Affiliates (including following the Closing, any Group Company) at least twelve (12) months prior to solicitation or hiring.


 


(c)              
Non-Disparagement. During the period commencing at the Closing and ending on the two-year anniversary thereof, (i) the Restricted
Parties shall not disparage, defame or discredit (x) any of the Group Companies or (y) Parent or any of its Affiliates, in the case of
clause (y), solely to the extent related to their ownership of the Group Companies, or engage in any activity which would have the effect
of disparaging, defaming or discrediting (x) any Group Company or (y) Parent or any of its Affiliates, in the case of clause (y), solely
to the extent related to their ownership of the Group Companies, nor shall the Restricted Parties interfere with or disrupt the business
activities of any Group Company, or engage in any activity which would have the effect of interfering with or disrupting the business
activities of any Group Company and (ii) no Group Company or Parent shall disparage, defame or discredit the Restricted Parties or any
of their respective Affiliates, solely to the extent related to their ownership of the Group Companies, or engage in any activity which
would have the effect of disparaging, defaming or discrediting the Restricted Parties or any of their respective Affiliates, solely to
the extent related to their ownership of the Group Companies; provided, however, that nothing in this Section 1(c) or elsewhere
in this Agreement shall prevent the Restricted Parties, Parent or any member of any Group Company from engaging in “whistleblowing”
or other activities expressly protected by applicable law, to the extent so protected.


 


(d)              
Tolling. If it shall be judicially determined by final, non-appealable order of a court of competent jurisdiction that any
Restricted Party has violated any of its obligations under this Section 1 then the applicable restricted period shall automatically
be extended by a period of time equal in length to the period during which such violation(s) occurred, effective as of the date of such
Restricted Party’s first breach of any provision.


 





 


(e)       Remedies.
The Parties agree that irreparable damage would occur if any provision of this Agreement were not performed in accordance with its specific
terms or were otherwise breached. The Restricted Parties acknowledge and agree that in the event of any breach


 




    	 



    	 



    

(or threatened breach) of the
provisions of this Section 1, Parent shall be entitled to injunctive or other equitable relief from any court of competent
jurisdiction set forth in Section 11.08 of the Merger Agreement in order to prevent or restrain breaches of this Agreement and to enforce
specifically the terms and provisions hereof (without any requirement to post any bond or other security in connection with seeking such
relief), this being in addition to any other remedy to which they are entitled hereunder, at law or in equity. The Parties agree
not to raise any objections to the availability of the equitable remedy of specific performance to prevent or restrain breaches of this
Agreement by any Restricted Party and to specifically enforce the terms and provisions of this Agreement to prevent or restrain breaches
of, or to enforce compliance with, the covenants and obligations of the Parties under this Agreement.


 


(f)       Acknowledgments.
The Restricted Parties acknowledge that the value of the Confidential Information arises from the fact that such information is not
generally known in the marketplace and that the covenants set forth in this Section ‎1
are additional consideration for the agreements and covenants of the Company, Parent and Merger Sub pursuant to the Merger Agreement and
are a material inducement to the Company, Parent and Merger Sub to enter into the Merger Agreement and to perform their respective obligations
thereunder. Furthermore, each of the Parties acknowledges and agrees that the protection of Confidential Information and employees of
any of the Group Companies are each necessary to protect and preserve the value of each of the Group Companies’ business and their
respective assets and properties.  The Parties acknowledge that (i) the covenants and agreements of the Restricted Parties set forth
in this Section 1 are reasonable with respect to their duration and scope, (ii) Parent will be irreparably harmed and there will
be no adequate remedy at law for a violation of any of such covenants and agreements, (iii) such covenants and agreements are reasonable
and necessary for the protection and preservation of the value and the goodwill of the business of each of the Group Companies, Parent
and their respective Affiliates, and (iv) Parent would not have agreed to consummate the Transactions unless the Restricted Parties agreed
to be bound by the terms of this Section 1.


 


(g)       Severability;
Enforcement. Any term or provision of this Agreement which is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction,
be ineffective to the extent of such invalidity or unenforceability without rendering invalid or unenforceable the remaining terms and
provisions of this Agreement or affecting the validity or enforceability of any of the terms or provisions of this Agreement in any other
jurisdiction. If, at the time of enforcement of any of the provisions of this Section ‎1, a court of competent jurisdiction
set forth in Section 11.08 of the Merger Agreement determines that the restrictions stated herein are unreasonable under the circumstances
then existing, then such court shall have the power to reduce the scope, duration or geographic area of any such term or provision, to
delete specific words or phrases or to replace any invalid or unenforceable term or provision in Section ‎1 with a term
or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or
provision, and this Agreement shall be enforceable against the Restricted Parties as so modified to the greatest extent permissible.


 
(h)              
Representations and Warranties. As a material inducement for Parent to enter into this Agreement, each Restricted Party
hereby represents and warrants that (i) such Restricted Party is duly organized, validly existing and in good standing under the laws
of its jurisdiction of organization, and the execution, delivery and performance by such Restricted Party of this Agreement are within
such Restricted Party’s entity or other powers, as applicable, (ii) this Agreement has been duly and validly executed and delivered
by such Restricted Party, and assuming 







 




    	 



    	 



    

the due authorization, execution and delivery by Parent, constitutes or will constitute the valid
and binding agreement of such Restricted Party enforceable against such Restricted Party in accordance with its terms and conditions,
and (iii) the execution and delivery of this Agreement by such Restricted Party does not, and the consummation of the transactions contemplated
hereby, and performance of the obligations hereunder, will not conflict with or result in a violation or breach of or default under any
provision of, or constitute an event that, after notice or lapse of time or both, would result in a breach or violation of or conflict
or default under any Contract or Applicable Law binding upon or applicable to such Restricted Party or any of its assets or properties
or, if applicable, any organization document of such Restricted Party.


 


Notices1.01. All
notices, demands and other communications to be given or delivered under or by reason of the provisions of this Agreement shall be in
writing and shall be deemed to have been given when personally delivered, upon transmission by e-mail (if no customary undelivered message
is received), one (1) day after deposit with Federal Express or similar overnight courier service, or three (3) days after being mailed
by first class mail, return receipt requested. Notices, demands, and communications to the Parties shall, unless another address is specified
in writing, be sent to the addresses indicated below:


 


(a)       if
to Parent to:


 


Bullseye FinCo, Inc.





c/o EQT Partners Inc.





1114 Avenue of the Americas, 45th Floor





New York, NY 10036





Attention: Arvindh Kumar; Tyler Parker





Email: [***], Email: [***]  


 


with a copy to (which notice shall not
constitute notice):


 


Weil, Gotshal & Manges LLP





767 Fifth Avenue





New York, New York 10153





Attention: Robert Rizzo; Raymond Gietz





Email: Robert.Rizzo@weil.com;
Raymond.Gietz@weil.com


 


(b)       if
to the Restricted Parties, to:


 


Bain Capital Venture Fund 2012, L.P.





200 Clarendon Street





Boston, MA 02116





Attention: Andrew Cleverdon





Email: [***] 


 





Any Party may change the address
to which notices, requests, demands, claims and other communications hereunder are to be delivered by giving the other Party notice in
the manner herein set forth.


 




    	 



    	 



    

3.       General
Provisions.


 


(a)       Sections
11.03 (Amendments and Waivers), 11.06 (Binding Effect; Benefit; Assignment), 11.07 (Governing Law), 11.08 (Jurisdiction),
11.09 (Waiver of Jury Trial), 11.10 (Counterparts; Effectiveness), 11.11 (Entire Agreement), and 11.12 (Severability)
of the Merger Agreement are incorporated by reference herein, mutatis mutandis.


 


(b)       This
Agreement shall terminate and be of no further force or effect on the fifth anniversary of the Closing.


 


* * * * *


 




    	 



    	 



    

The Parties have caused this
Agreement to be executed and delivered as of the date first written above.


 





	 	RESTRICTED PARTIES:	 
	 	 	 	 
	 	Bain
                  Capital Venture Fund 2012, L.P.


	 
	 	 	 	 
	 	By: Bain Capital Venture Partners 2012, L.P., its general partner


	 
	 	 	 	 
	 	 	 	 
	 	/s/ Matt Harris





	 
	 	Name	Matt Harris



	 
	 	Title:	Authorized Person



	 



 


 








	 	BCIP
                  Venture Associates


	 
	 	 	 	 
	 	By: Boylston Coinvestors, LLC, its managing partner



	 
	 	 	 	 
	 	 	 	 
	 	/s/ Matt Harris





	 
	 	Name	Matt Harris



	 
	 	Title:	Authorized Person



	 



 


 











	 	BCIP
Venture Associates-B


	 
	 	 	 	 
	 	By: Boylston Coinvestors, LLC, its managing partner



	 
	 	 	 	 
	 	 	 	 
	 	/s/ Matt Harris





	 
	 	Name	Matt Harris



	 
	 	Title:	Authorized Person



	 






 







    	 



    	 



    




 





 





	 	PARENT:	 
	 	 	 	 
	 	 	 	 
	 	By:	/s/ Adam Larsson



	 
	 	Name	Adam Larsson
	 
	 	Title:	President
	 



 









	 	 	 	 
	 	By:	/s/ Christiaan Snyders




	 
	 	Name	Christiaan Snyders



	 
	 	Title:	Vice President & Treasurer