ex102.htm


    Exhibit 10.2

    
      September
18, 2008

       

      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. Termination.

       

              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.

       

          6. Health
Insurance.    You shall be eligible to participate in
the Company’s health insurance plan with the same terms, cost and coverage as
then offered to Company employees until you reach age 65.  In the
event of a Change of Control of the Company, the acquiring or surviving party
shall be required to provide the same or equivalent coverage at a cost
equivalent to that in effect at the time of the Change of
Control.  The provision of health insurance under this paragraph shall
be made to you in accordance with the Company’s regular payroll/benefits
practice.

       

          7. Section
409A.    The payments and benefits provided to you upon
the termination of your services pursuant to paragraphs 3.2 and 6 shall be
subject to the terms and conditions set forth in Exhibit A.  In any
event, the Company makes no representation or warranty and shall have no
liability to you or any other person if any provisions of this Letter Agreement
are determined to constitute deferred compensation subject to Section 409A but
do not satisfy the conditions of such section.

       

          8. Taxes.  All
payments to be made to you under this Letter Agreement shall be subject to any
required withholding of federal, state and local income and/or employment
taxes.

       

          9. Waiver.  You
agree that neither this Letter Agreement nor the transactions contemplated
hereby constitutes an Involuntary Termination or a termination without Cause (as
each such term is defined in the Employment Agreement) under the Employment
Agreement.

       

          10. Survival.  In
case any provision of this Letter Agreement shall be invalid, illegal or
otherwise unenforceable, the validity, legality and enforceability of the
remaining provisions shall in no way be affected or impaired
thereby.

       

          11. Notices.  All
notices required or permitted under this Letter Agreement shall be in writing
and shall be deemed effective upon personal delivery or three days after deposit
in the United States Post Office, by registered or certified mail, postage
prepaid, return receipt requested, addressed to the other party at the address
shown above (and, in the case of any notice to the Company, with a copy to John
A. Burgess, Esq., Wilmer Cutler Pickering Hale and Dorr LLP, 60 State Street,
Boston, Massachusetts 02109), or at such other address or addresses as either
party shall designate to the other in accordance with this Section
11.

       

          12. Governing
Law.  This Letter Agreement shall be construed, interpreted and
enforced in accordance with the laws of the State of New Hampshire, without
regard to any principle of conflict of laws that would require or permit the
application of the laws of any other jurisdiction.

       

          13. Successors and
Assigns.  This Letter Agreement shall be binding upon and inure
to the benefit of both parties and their respective successors and assigns,
provided, however, that your obligations as an employee of the Company are
personal and shall not be assigned by you.

       

          14. Entire
Agreement.  This Letter Agreement represents the entire
agreement between the parties regarding the subject matter hereof, and, except
as provided in Section 4 above, supersedes and replaces in its entirety the
Employment Agreement.

       


      
        
           


        

        
           


          
            

          

        

        
           


        

      

       

      IN
WITNESS WHEREOF, the parties hereto have executed this Letter Agreement as of
the day and year set forth above.

       

      
        	 	BOTTOMLINE
      TECHNOLOGIES (de), INC.	 
	 	 	 	 
	
                September
      18, 2008

              	
                By:
      

              	/s/ Joseph
      L. Barry, Jr.	 
	 	 	Joseph
      L. Barry, Jr.	 
	 	 	Chairman
      of Compensation Committee	 
	 	 	 	 


      

    

     

    
      
        
          	 	Accepted
      and Agreed:	 
	 	 	 	 
	
                  
                    September
      18, 2008

                  

                	
                  By:
      

                	/s/ Joseph
      L. Mullen	 
	 	 	
                  Joseph
      L. Mullen 

                	 
	 	 	 	 
	 	 	 	 


        



       


      
        
           


        

        
           


          
            

          

        

        
           


        

      


      Exhibit A:  Payments subject to Section
409A

      


          Subject to the
provisions in this Exhibit A, any severance payments or benefits under the
Letter Agreement shall begin only upon the date of your “separation from
service” (determined as set forth below) which occurs on or after the date of
termination of your services.  The following rules shall apply with
respect to distribution of the payments and benefits, if any, to be provided to
you under the Letter Agreement:

       

          1. It is intended
that each installment of the severance payments and benefits provided under the
Letter Agreement shall be treated as a separate “payment” for
purposes of Section 409A of the Internal
Revenue Code and the guidance issued thereunder (“Section 409A”).  Neither the Company nor you shall have the
right to accelerate or defer the delivery of any such payments or benefits
except to the extent specifically permitted or required by Section
409A.

       

          2. If, as of the date
of your “separation from service” from the Company, you are not a “specified
employee” (within the meaning of Section 409A), then each installment of the
severance payments and benefits shall be made on the dates and terms set forth in the Letter
Agreement.

       

          3. If, as of the date
of your “separation from service” from the Company, you are a “specified
employee” (within the meaning of Section 409A), then:

       

          a. Each
installment of the severance payments and benefits due under the Letter
Agreement that, in accordance with the dates and terms set forth herein, will in
all circumstances, regardless of when the separation from service occurs, be
paid within the Short-Term Deferral Period (as hereinafter defined) shall be
treated as a short-term deferral within the meaning of Treasury Regulation
Section 1.409A-1(b)(4) to the maximum extent permissible under Section
409A.  For purposes of this offer letter, the “Short-Term Deferral
Period” means the period ending on the later of the fifteenth day of the third
month following the end of your tax year in which the separation from service
occurs and the fifteenth day of the third month following the end of the
Company’s tax year in which the separation from service occurs;
and

       

          b. Each installment
of the severance payments and benefits due under the Letter Agreement that is
not described in paragraph 3(a) above and that would, absent this subsection, be
paid within the six-month period following your “separation from service” from
the Company shall not be paid until the date that is six months and one day
after such separation from service (or, if earlier, your death), with any such
installments that are required to be delayed being accumulated during the
six-month period and paid in a lump sum on the date that is six months and one
day following your separation from service and any subsequent installments, if
any, being paid in accordance with the dates and terms set forth herein;
provided, however, that the preceding provisions of this sentence shall not
apply to any installment of severance payments and benefits if and to the
maximum extent that that such installment is deemed to be paid under a
separation pay plan that does not provide for a deferral of compensation by
reason of the application of Treasury Regulation 1.409A-1(b)(9)(iii) (relating
to separation pay upon an involuntary separation from service).  Any
installments that qualify for the exception under Treasury Regulation Section
1.409A-1(b)(9)(iii) must be paid no later than the last day of your second
taxable year following your taxable year in which the separation from service
occurs.

       

          4. The determination
of whether and when your separation from service from the Company has occurred
shall be made and in a manner consistent with, and based on the presumptions set
forth in, Treasury Regulation Section 1.409A-1(h).  Solely for
purposes of this paragraph 4, “Company” shall include all persons with whom the
Company would be considered a single employer under Section 414(b) and 414(c) of
the Code.

       

          5. All reimbursements
and in-kind benefits provided under this letter agreement shall be made or
provided in accordance with the requirements of Section 409A to the extent that
such reimbursements or in-kind benefits are subject to Section 409A, including,
where applicable, the requirement that (i) any reimbursement is for expenses
incurred during your lifetime (or during a shorter period of time specified in
this Agreement), (ii) the amount of expenses eligible for reimbursement during a
calendar year may not affect the expenses eligible for reimbursement in any
other calendar year, (iii) the reimbursement of an eligible expense will be made
on or before the last day of the calendar year following the year in which the
expense is incurred and (iv) the right to reimbursement is not subject to set
off or liquidation or exchange for any other benefit.