As filed with the Securities and Exchange Commission on January 26, 2007
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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 Incorporation or Organization) |
(I.R.S. Employer Identification No.) |
|
| 325 Corporate Drive, Portsmouth, New Hampshire | 03801 | |
| (Address of Principal Executive Offices) | (Zip Code) | |
2000 Stock Incentive Plan
(Full Title of the Plan)
Robert A. Eberle
Chief Executive Officer
Bottomline Technologies (de), Inc.
325 Corporate Drive
Portsmouth, New Hampshire 03801
(Name and Address of Agent For Service)
(603) 436-0700
(Telephone Number, Including Area Code, of Agent For Service)
CALCULATION OF REGISTRATION FEE
| Title of Securities to be Registered |
Amount to be
Registered(1) |
Proposed
Maximum Offering Price Per Share |
Proposed
Maximum Aggregate Offering Price |
Amount of
Registration Fee |
||||
|
Common Stock, $.001 par value per share |
2,251,138 shares(2) | $10.39(3) | $23,389,324(3) | $2,502.66 | ||||
| (1) | In accordance with Rule 416 under the Securities Act of 1933, as amended, this registration statement shall be deemed to cover any additional securities that may from time to time be offered or issued to prevent dilution resulting from stock splits, stock dividends or similar transactions. |
| (2) | Consists of an additional 2,251,138 shares issuable under the 2000 Stock Incentive Plan pursuant to the terms of such plan. |
| (3) | 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 prices of the Registrant’s Common Stock as reported on the Nasdaq Global Market on January 23, 2007. |
STATEMENT OF INCORPORATION BY REFERENCE
This Registration Statement on Form S-8 incorporates by reference the contents of the Registration Statement on Form S-8, File No. 333-50202, filed by the Registrant on November 17, 2000 relating to the Registrant’s 2000 Stock Incentive Plan.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, 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 this 26th day of January, 2007.
| BOTTOMLINE TECHNOLOGIES (de), INC. | ||
|
By: |
/s/ Robert A. Eberle |
|
| Robert A. Eberle | ||
| Chief Executive Officer | ||
POWER OF ATTORNEY AND SIGNATURES
We, the undersigned officers and directors of Bottomline Technologies (de), Inc., hereby severally constitute and appoint Robert A. Eberle, Kevin M. Donovan 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 on our behalf in our capacities as officers and directors to enable Bottomline Technologies (de), Inc. to comply with the provisions of the Securities Act of 1933, as amended, and all requirements of the Securities and Exchange Commission, hereby ratifying and confirming our signatures as they may be signed by our said attorneys, or any of them, to said registration statement and any and all amendments thereto.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities and on the dates indicated.
|
Signature |
Title |
Date | ||
|
/s/ Daniel M. McGurl |
Chairman of the Board | January 26, 2007 | ||
|
Daniel M. McGurl |
||||
|
/s/ Joseph L. Mullen |
Vice Chairman of the Board | January 26, 2007 | ||
|
Joseph L. Mullen |
||||
|
/s/ Robert A. Eberle |
President and Chief Executive | January 26, 2007 | ||
|
Robert A. Eberle |
Officer and Director (Principal executive officer) | |||
|
/s/ Kevin M. Donovan |
Chief Financial Officer and | January 26, 2007 | ||
|
Kevin M. Donovan |
Treasurer (Principal financial and accounting officer) | |||
|
/s/ Joseph L. Barry, Jr. |
Director | January 26, 2007 | ||
|
Joseph L. Barry, Jr. |
||||
- 1 -
|
/s/ Michael J. Curran |
Director | January 26, 2007 | ||
|
Michael J. Curran |
||||
|
/s/ Jeffrey C. Leathe |
Director | January 26, 2007 | ||
|
Jeffrey C. Leathe |
||||
|
/s/ James L. Loomis |
Director | January 26, 2007 | ||
|
James L. Loomis |
||||
|
|
Director | |||
|
James W. Zilinski |
||||
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INDEX TO EXHIBITS
| Number |
Description |
|
| 4.1(1) | Amended and Restated Certificate of Incorporation of the Registrant | |
| 4.2(1) | Amended and Restated By-Laws of the Registrant | |
| 5.1 | Opinion of Wilmer Cutler Pickering Hale and Dorr LLP, counsel to the Registrant | |
| 23.1 |
Consent of Wilmer Cutler Pickering Hale and Dorr LLP (included in Exhibit 5.1) |
|
| 23.2 | Consent of Ernst & Young LLP, independent registered public accounting firm | |
| 24.1 | Power of attorney (included on the signature pages of this registration statement) | |
| (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. |
Exhibit 5.1
WILMERHALE LETTERHEAD
January 26, 2007
Bottomline Technologies (de), Inc.
325 Corporate Drive
Portsmouth, New Hampshire 03801
Re: 2000 Stock Incentive Plan
Ladies and Gentlemen:
We have assisted in the preparation of a Registration Statement on Form S-8 (the “Registration Statement”) to be filed with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Securities Act”), relating to an aggregate of 2,251,138 shares of common stock, $.001 par value per share (the “Shares”), of Bottomline Technologies (de), Inc., a Delaware corporation (the “Company”), issuable under the Company’s 2000 Stock Incentive Plan (the “Plan”).
We have examined the Certificate of Incorporation and By-Laws of the Company, each as amended and restated to date, and originals, or copies certified to our satisfaction, of all pertinent records of the meetings of the directors and stockholders of the Company, the Registration Statement and such other documents relating to the Company as we have deemed material for the purposes of this opinion.
In our examination of the foregoing documents, we have assumed the genuineness of all signatures, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as certified, photostatic or other copies, the authenticity of the originals of any such documents and the legal competence of all signatories to such documents.
We assume that the appropriate action will be taken, prior to the offer and sale of the Shares in accordance with the Plan, to register and qualify the Shares for sale under all applicable state securities or “blue sky” laws.
We express no opinion herein as to the laws of any state or jurisdiction other than the state laws of The Commonwealth of Massachusetts, the General Corporation Law of the State of Delaware and the federal laws of the United States of America.
Bottomline Technologies (de), Inc.
January 26, 2007
Page 2
It is understood that this opinion is to be used only in connection with the offer and sale of the Shares while the Registration Statement is in effect.
Please note that we are opining only as to the matters expressly set forth herein, and no opinion should be inferred as to any other matters.
Based on the foregoing, we are of the opinion that the Shares have been duly authorized for issuance and, when the Shares are issued and paid for in accordance with the terms and conditions of the Plan, the Shares will be validly issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion with the Commission in connection with the Registration Statement in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act. In giving such consent, we do not hereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission.
| Very truly yours, | ||
| WILMER CUTLER PICKERING HALE AND DORR LLP | ||
|
By: |
/s/ John A. Burgess |
|
| John A. Burgess, a Partner | ||
Exhibit 23.2
Consent of Independent Registered Public Accounting Firm
We consent to the incorporation by reference in the Registration Statement (Form S-8) pertaining to the 2000 Stock Incentive Plan of Bottomline Technologies (de), Inc. of our reports dated September 6, 2006, with respect to the consolidated financial statements and schedule of Bottomline Technologies (de), Inc., Bottomline Technologies (de), Inc. management’s assessment of the effectiveness of internal control over financial reporting, and the effectiveness of internal control over financial reporting of Bottomline Technologies (de), Inc., included in its Annual Report (Form 10-K) for the year ended June 30, 2006, filed with the Securities and Exchange Commission.
| /s/ Ernst & Young LLP |
Boston, Massachusetts
January 22, 2007