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Exhibit 4.3
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
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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 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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