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AMENDMENT NO. 2 TO RIGHTS AGREEMENT
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WHEREAS, as of January 31, 1997, CheckFree Corporation, a Delaware
corporation (the "Corporation"), and KeyCorp Shareholder Services, Inc.
("KeyCorp"), entered into a Rights Agreement (the "Rights Agreement"); and
WHEREAS, pursuant to Section 21 of the Rights Agreement, KeyCorp
resigned as Rights Agent under the Rights Agreement effective as of June 9,
1997;
WHEREAS, the Corporation appointed Fifth Third Bank, an Ohio banking
association ("Fifth Third"), as successor Rights Agent under the Rights
Agreement, and Fifth Third accepted such appointment on June 9, 1997; and
WHEREAS, the Corporation and Fifth Third wish to amend the Rights
Agreement;
NOW, THEREFORE, in consideration of the promises and the mutual
agreements herein set forth, the parties hereby agree as follows:
1. The Corporation represents that this Amendment No. 2 complies with
the requirements of Section 27 of the Rights Agreement.
2. The Corporation and Fifth Third hereby agree that Section 1(ff) of
the Rights Agreement shall be amended to read in its entirety as follows:
"(ff) "15% Stockholder" shall mean any Person that, together with all
Affiliates and Associates of such Person, shall be the Beneficial Owner
of such number of Voting Shares of the Company as constitutes a
percentage of the then outstanding Voting Shares that is equal to or
greater than 15%; provided, however, that the term "15% Stockholder"
shall not include: (i) an Exempt Person; (ii) any Person that, together
with all Affiliates and Associates of such Person, became the
Beneficial Owner of 15% or more of the Voting Shares of the Company on
or prior to October 31, 1997 ("Existing Owner"), unless and until such
Existing Owner, after October 28, 1997, becomes the Beneficial Owner of
additional Voting Shares representing 1% or more of the Voting Shares
or, after first becoming the Beneficial Owner of less than 15% of the
Voting Shares, again becomes the owner of 15% or more of the Voting
Shares; or (iii) any Person if such Person would not otherwise be a 15%
Stockholder but for a reduction in the number of outstanding Voting
Shares resulting from a stock repurchase program or other similar plan
of the Company or from a self-tender offer of the Company, which plan
or tender offer commenced on or after the date hereof, provided,
however, that the term "15% Stockholder" shall include such Person from
and after the first date upon which (A) such Person, since the date of
the commencement of such plan or tender offer, shall have acquired
Beneficial Ownership of, in the aggregate, a number of Voting Shares of
the Company equal to 1% or more of the Voting Shares of the Company
then outstanding and (B) such Person, together with all Affiliates and
Associates of such Person, shall Beneficially Own 15% or more of the
Voting Shares of the Company then outstanding. In calculating the
percentage of the outstanding Voting Shares that are Beneficially Owned
by a Person for purposes of this subsection (ff), Voting Shares that
are Beneficially Owned by such Person shall be deemed outstanding, and
Voting Shares that are not Beneficially Owned by such Person and that
are subject to issuance upon the exercise or conversion of outstanding
conversion rights, exchange rights, rights (other than Rights),
warrants or options shall not be deemed outstanding. Notwithstanding
the foregoing, if the Board of Directors of the Company determines in
good faith that a Person that would otherwise be a 15% Stockholder
pursuant to the foregoing provisions of this Section 1(ff) and Section
1(b) hereof has become such inadvertently, and such Person (a) promptly
notifies the Board of Directors of such status and (b) as promptly as
practicable thereafter, either divests of a sufficient number of Voting
Shares so that such Person would no longer be a 15% Stockholder, or
causes any other circumstance, such as the existence of an agreement
respecting Voting Shares, to be eliminated such that such Person would
no longer be a 15% Stockholder as defined pursuant to this Section
1(ff) and 1(b), then such Person shall not be deemed to be a 15%
stockholder for any purposes of this Agreement. Any determination made
by
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the Board of Directors of the Company as to whether any Person is or is
not a 15% Stockholder shall be conclusive and binding upon all holders
of Rights."
3. Except as otherwise amended hereby, the Rights Agreement, as
amended, shall remain unchanged and in full force and effect.
IN WITNESS WHEREOF, the Corporation and Fifth Third have executed this
Amendment No. 2 to Rights Agreement as of the 28th day of October, 1997.
CHECKFREE CORPORATION
By: /s/ Xxxxx X. Xxxxx
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Xxxxx X. Xxxxx
Chairman of the Board, President, and
Chief Executive Officer
FIFTH THIRD BANK
By: /s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
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Title: Vice President
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