ex102.htm


    Exhibit
10.2

     

    December
23, 2008

     

    Mr.
Robert A. Eberle

     

    7
Rockrimmon Road

     

    North
Hampton, NH 03862

     

    Dear
Rob:

     

    Reference
is made to your Amended and Restated Employment Agreement with Bottomline
Technologies (de), Inc. (the “Company”) dated as of November 21, 2002 (the
“Agreement”) and amended as of September 30, 2005 and November 16, 2006 (the
“Amendments” or, respectively, the “2005 Amendment” and the “2006
Amendment”).  In all respects, the Agreement and the Amendments shall
remain in full force and effect, provided, however, that:

     

    
      	
              1.  

            	
              It
      is agreed that Section 3.1 of the Agreement is hereby amended to include
      the following sentence at the end of the paragraph: “Bonuses will under
      normal circumstances be paid within 90 days of the end of the quarter in
      which they are earned provided however that bonuses earned in the first or
      second quarters of the Company’s fiscal year will be paid no later than
      September 15th
      of the calendar year following the calendar year in which the bonuses were
      earned, and bonuses earned in the third and fourth quarters of the
      Company’s fiscal year will be paid no later than March 15th
      of the calendar year following the calendar year in which the bonuses were
      earned”

            


    

     

    
      	
              2.  

            	
              It
      is further agreed that Section 5.4 is hereby amended and restated in its
      entirety to read as follows:

            


    

     

    “At the
election of the Employee, as a result of an Involuntary
Termination.  For the purposes of this Agreement, “Involuntary
Termination” shall mean:

     

    (i)           a
material diminution in the Employee's authority, duties or
responsibilities;

     

    (ii)           a
material reduction in the Employee’s base compensation (as increased from time
to time), other than in connection with a Company-wide reduction in
salaries;

     

    (iii)           a
material diminution in the authority, duties, or responsibilities of the board
of directors to whom the Employee is required to report, including a requirement
that the Employee report to a corporate officer or employee instead of reporting
directly to the board of directors;

     

    (iv)           a
material diminution in the budget over which the Employee retains
authority;

     

    (v)           the
imposition of a requirement by the Company, any person in control of the Company
or any successor to the Company, that the location at which the Employee
performs his principal duties for the Company or any successor to the Company be
changed to a new location outside the radius of 50 miles from the then current
location; or

     

    (vi)           any
breach by the Company of any material provision of this Agreement;

     

    provided,
however, that no such event or condition shall constitute an Involuntary
Termination unless (x) the Employee gives the Company a written notice of
termination no more than 90 days after the initial existence of such condition;
(y) the grounds for termination (if susceptible to correction) are not corrected
by the Company within 30 days of its receipt of such notice; and (z) the
Employee’s termination of employment occurs within two years following the
Company’s receipt of such notice.

     

    The right of the Employee to terminate
his employment as a result of an Involuntary Termination shall not be affected
by the Employee’s disability, or the fact that the Employee at such time may
have an offer of employment from another employer or any other reason for
terminating his employment with the Company.”

     

    
      	
              3.  

            	
              It
      is further agreed that Section 6.1 is hereby amended to include the
      following sentence at the end of the paragraph: “Such payment shall be
      paid to the Employee in a lump sum within ten (10) business days following
      the date of termination.”

            


    

     

    
      	
              4.  

            	
              It
      is further agreed that Section 6.2 is hereby amended to include the
      following sentence at the end of the paragraph: “Such payment shall be
      paid to the estate of the Employee or to the Employee, as the case may be,
      in a lump sum within ten (10) business days following the date of
      termination.”

            


    

     

    
      	
              5.  

            	
              It
      is further agreed that Sections 6.3.1(i), 6.3.2(i), 6.4.1(i) and 6.4.2(i)
      are hereby amended to include the following language in the first
      sentence, respectively: “the Company shall pay to the Employee in a lump sum, within
      ten (10) business days after the termination of the Employee’s
      employment...”

            


    

     

    
      	
              6.  

            	
              It
      is further agreed that Sections 6.3.1(ii), 6.3.2(ii), 6.4.1(ii) and
      6.4.2(ii) are hereby amended to include the following language at the end
      of the sentence, respectively: “provided, however, that any benefits
      coverage provided by the Company that continues beyond the COBRA coverage
      period shall be administered in accordance with the Company’s ordinary
      payroll practices;”

            


    

     

    
      	
              7.  

            	
              It
      is further agreed that Section 6.10 (as added by the 2006 Amendment) is
      hereby amended and restated in its entirety to read as
      follows:

            


    

     

    “Compliance
with Section 409A.   Subject to the provisions in this Section
6.10, any severance payments or benefits under this Agreement shall begin only
upon the date of the Employee’s “separation from service” (determined as set
forth below) which occurs on or after the date of termination of the Employee’s
employment.  The following rules shall apply with respect to
distribution of the payments and benefits, if any, to be provided to the
Employee under this Agreement:

     

    (i)           It
is intended that each installment of the severance payments and benefits
provided under this Agreement shall be treated as a separate “payment” for
purposes of Section 409A of the Code and the guidance issued thereunder
(“Section 409A”).  Neither the Company nor the Employee 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.

     

    (ii)           
If, as of the date of the Employee’s “separation from service” from the Company,
the Employee is 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 this Agreement.

     

    (iii)           If,
as of the date of the Employee’s “separation from service” from the Company, the
Employee is a “specified employee” (within the meaning of Section 409A),
then:

     

    a.           Each
installment of the severance payments and benefits due under this 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 Agreement, the “Short-Term Deferral
Period” means the period ending on the later of the fifteenth day of the third
month following the end of the Employee’s 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 this Agreement that
is not described in Section 6.10(iii)(a) above and that would, absent this
subsection, be paid within the six-month period following the Employee’s
“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,
the Employee’s 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 the Employee’s 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 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 the Employee’s second taxable year
following the taxable year in which the separation from service
occurs.

     

    (iv)            The
determination of whether and when the Employee’s 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 Section 6.10(iv), “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.

     

    (v)           All
reimbursements and in-kind benefits provided under this 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 requirements that (i) any reimbursement is for
expenses incurred during the Employee’s 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.”

    


     

    [Remainder
of Page Intentionally Left Blank]

     


    
      
         


      

      
         


        
          

        

      

      
         


      

    


    By
execution of this letter, you hereby agree to the foregoing amendment of the
Agreement and reaffirm your obligations under the Agreement.

     

    Very
truly yours,

     

    Bottomline
Technologies (de), Inc.

     

    
      	 	 	 
	 	 	 	 
	
              December
      23, 2008 

            	
              By:
      

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


    

    
                                          

    
      
        	 	Accepted
      and Agreed:	 
	 	 	 	 
	
                December
      23, 2008 

              	
                By:
      

              	/s/ Robert
      A. Eberle	 
	 	 	Robert
      A. Eberle