1
EXHIBIT 7.4 TO SCHEDULE 13D OF INTUIT INC.
AMENDED AND RESTATED CHECKFREE CORPORATION STOCK RESTRICTION AGREEMENT
2
Exhibit 7.4
AMENDED AND RESTATED
CHECKFREE CORPORATION
STOCK RESTRICTION AGREEMENT
This Amended and Restated Stock Restriction Agreement (this "Agreement")
is made as of September 15, 1996 by and between Checkfree Corporation, a
Delaware corporation ("Parent") and Intuit Inc., a Delaware corporation
("Holdings").
RECITALS
A. Parent and Holdings, together with Checkfree Acquisition Corporation
II, a wholly owned subsidiary of Parent, and Intuit Services Corporation, a
wholly owned subsidiary of Holdings, have entered into a certain Agreement and
Plan of Merger dated as of September 15, 1996, as amended (the "Plan"), pursuant
to which, by merger (the "Merger"), Parent will acquire the business of Intuit
Services Corporation.
B. In connection with the Merger, Parent will issue to Holdings that
number of shares of the common stock of Parent ("Parent Common Stock") specified
in the Plan, subject to adjustment as provided therein ("Merger Securities"),
and the parties hereto have entered into a certain Stock Restriction Agreement
dated as of September 15, 1996 (the "Previous Agreement") to express their
agreement with respect to certain limitations on the actions which may be taken
by Holdings with respect to the Parent Common Stock issued to Holdings in the
Merger. The parties have also entered into a certain Amended and Restated
Registration Rights Agreement dated as of September 15, 1996, pursuant to which
Parent has agreed to register the Merger Securities under the Securities Act of
1933 (the "Registration Rights Agreement").
C. Parent and Holdings now desire to amend and restate the Previous
Agreement in the form of this Agreement, which shall supersede and replace
the Previous Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual agreements and covenants
hereinafter and therein contained and for other good and valuable consideration
(the receipt and sufficiency of which is hereby acknowledged), the parties
hereto agree as follows:
1. Restrictions. While this Agreement remains in effect, Holdings shall
not sell, assign, or otherwise transfer or purchase any shares of Parent Common
Stock except as specifically permitted hereunder and shall be subject to the
following restrictions with respect to the taking of certain other actions with
respect to Parent Common Stock.
1.1. Sales.
3
(i) Sales to Qualified Institutional Buyers. Holdings may sell
shares of Parent Common Stock to any Qualified Institutional Buyer, as defined
herein, where such Qualified Institutional Buyer would own, after such purchase
by it, not more than 10% of the then outstanding shares of Parent Common Stock.
"Qualified Institutional Buyer," as that term is used herein, means any person
who would be eligible, under Rule 13d-1(b)(1) under the Securities and Exchange
Act of 1934, as amended ("Exchange Act"), if such person owned 5% or more of the
then outstanding shares of Parent Common Stock, to file reports of beneficial
ownership on Schedule 13G as prescribed by the Securities and Exchange
Commission ("SEC"), because such person both:
(A) is acquiring shares of Parent Common Stock in the
ordinary course of his business and not with the purpose
nor with the effect of changing or influencing the
control of the issuer, nor in connection with or as a
participant in any transaction having such purpose or
effect, including any transaction subject to Rule
13d-3(b); and
(B) is (i) a broker or dealer registered under Section 15
of the Exchange Act, (ii) a bank as defined in Section
3(a)(6) of the Exchange Act, (iii) an insurance company
as defined in Section 3(a)(19) of the Exchange Act, (iv)
an investment company registered under Section 8 of the
Investment Company Act of 1940, (v) an investment
advisor registered under Section 203 of the Investment
Advisers Act of 1940, (vi) an employee benefit plan, or
pension fund which is subject to the provisions of the
Employee Retirement Income Security Act of 1974
("ERISA") or an endowment fund, (vii) a parent holding
company, provided that the aggregate amount held
directly by the parent, and directly and indirectly by
its subsidiaries which are not persons specified in Rule
13d-1(b)(ii)(A)-(F) promulgated under the Exchange Act,
does not exceed one percent of the securities of the
subject class, or (viii) a group, provided that all the
members are persons specified in Rule
13d-1(b)(ii)(A)-(G) promulgated under the Exchange Act.
(ii) Sales to Other Buyers. Holdings may sell shares of Parent
Common Stock to any person who is not a Qualified Institutional Buyer ("Other
Buyer") which Other Buyer would own, after such purchase by it, not more than 5%
of the then outstanding shares of Parent Common Stock. Holdings shall notify
Parent in writing of its intention to sell Parent Common Stock in advance of any
sale to an Other Buyer, and Parent shall have the right, during the five
business days following the receipt of such notice, to purchase such shares for
the price at which Holdings has agreed to sell the shares to such Other Buyer.
(iii) Sales Pursuant to Rule 144 and Public Offerings. Holdings may
sell shares of Parent Common Stock (a) in compliance with SEC Rule 144 under the
Securities Act of 1933, as amended (the "Securities Act"), (b) pursuant to
underwritten public offerings of Parent Common Stock in which the parties have
mutually approved the managing underwriters
4
and (c) pursuant to offerings of Parent Common Stock that are not underwritten
but are registered under the Securities Act pursuant to a shelf registration
under Rule 415 under the Securities Act that has been effected pursuant to the
Registration Rights Agreement. Any sales of Parent Common Stock by Holdings to
Qualified Institutional Buyers or to Other Buyers, if made pursuant to this
Section 1.1(iii) (a) through an underwriter, broker, market maker or similar
intermediary without Holdings' direct selection of or direct negotiation with
the ultimate purchaser of such Parent Common Stock, or (b) in any manner
permitted by the "manner of sale" provisions of Rule 144(f) under the Securities
Act, or (c) in any manner that would be permitted by Rule 145(d) under the
Securities Act if such Rule 145 applied to the issuance and resale of the Parent
Common Stock, shall be exempt from the restrictions set forth in Section 1.1(i)
and Section 1.1(ii).
(iv) Other Sales. In addition to sales permitted under the foregoing
subparagraphs (i), (ii) and (iii) of this Section 1.1, Holdings may also sell
shares of Parent Common Stock in other ways, provided that Parent agrees to such
sales in advance in writing.
1.2. Purchases. So long as this Agreement is in effect, Holdings may
purchase shares of Parent Common Stock only where such purchase would result in
its beneficial ownership of not more than 15% of the then outstanding shares of
Parent Common Stock, except where Holdings has received the prior written
consent of Parent's Board of Directors or its authorized representative;
provided, however, that Holdings may not hold more than the number of shares of
Parent Common Stock constituting the Merger Securities so long as this Agreement
remains in effect.
1.3. Solicitation of Proxy and Other Matters.
(i) Solicitation of Proxies. Holdings will not solicit proxies from
Parent stockholders in opposition to any recommendation of Parent's Board of
Directors.
(ii) Takeover Bids. Holdings will not initiate or participate in any
group which proposes, without the support of Parent's Board of Directors, any
change in the control of Parent, whether by tender offer, merger, or otherwise.
In any event, Holdings may, itself, make such an offer or proposal to Parent's
Board of Directors; provided, however, that any such offer or proposal by
Holdings shall be made on a strictly confidential basis and shall not be
publicly disclosed without the prior consent of Parent's Board of Directors.
2. Legend. The certificates representing shares of Parent Common
Stock beneficially owned by Holdings shall bear the following legend:
THE SHARES OF COMMON STOCK REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO
AN AGREEMENT DATED SEPTEMBER 15, 1996 BETWEEN INTUIT INC. AND CHECKFREE
CORPORATION IMPOSING CERTAIN TRANSFER AND OTHER RESTRICTIONS ON THE HOLDER
OF SUCH SHARES.
5
Holdings shall deliver all shares of Parent Common Stock purchased hereunder to
Parent or its transfer agent to have this legend affixed to all such shares.
3. Termination. This Agreement and the restrictions imposed hereby will
irrevocably terminate at the first time that Holdings shall beneficially own
less than 10% of the outstanding shares of Parent Common Stock, and this
Agreement shall not be revived by any subsequent transaction that results in
Holdings owning 10% or more of the outstanding shares of Parent Common Stock.
4. Governing Law. This Agreement shall be governed by and
interpreted in accordance with the law of the State of Delaware, without
reference to its choice of law rules.
5. Assignment. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective estates, heirs, legal
representatives, successors, and assigns; provided, however, that no assignment
of any rights or obligations shall be made by any party hereto without the
written consent of each other party hereto.
6. Notices. All notices and other communications hereunder shall be in
writing and shall be deemed to be given if sent by United States mail, postage
prepaid and registered or certified with required return receipt, or otherwise
personally delivered and receipted therefor, and addressed as follows (or at
such other address as may be specified by notice given pursuant hereto):
(a) If to Checkfree:
CHECKFREE CORPORATION
0000 Xxxx Xxxxx Xxxxxx Xxxx
Xxxxxxxx, Xxxxxxx 00000
Attn: Chief Executive Officer
with copy to:
PORTER, WRIGHT, XXXXXX & XXXXXX
00 X. Xxxx Xxxxxx
Xxxxxxxx, Xxxx 00000
Attn.: Xxxxxx X. Xxxxxxxx, Esq.
(b) If to Intuit:
INTUIT INC.
0000 Xxxxxx Xxxxxx
Xxxxxxxx Xxxx, XX 00000
Attn: Chief Executive Officer
with copy to:
6
FENWICK & WEST LLP
Xxx Xxxx Xxxx Xxxxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxxxx, Esq.
7. Captions. The captions at the beginning of the several sections
of this Agreement are not a part of the context hereof, but have been
inserted to assist in locating and reading those sections. They shall be
ignored in construing this Agreement.
8. Severability. In case any one or more of the provisions contained in
this Agreement is held to be invalid, illegal, or unenforceable in any respect
for any reason, such invalidity, illegality, or unenforceability shall not
affect any other provisions hereof. It is the intention of the parties that if
any provision is held to be invalid, illegal, or unenforceable, there shall be
added in lieu thereof a valid and enforceable provision as similar in terms to
such provision as is possible.
9. Duplicate Originals. This Agreement may be executed in one or
more counterparts, each of which shall be deemed to be a duplicate original,
and all counterparts taken together shall constitute duplicate originals of
one and the same agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
CHECKFREE CORPORATION
By: /s/ Xxxxx X. Xxxxx
Its: President and Chief Executive Officer
INTUIT INC.
By: /s/ Xxxxx X. Xxxxxx
Its: Senior Vice President and
Chief Financial Officer
