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Exhibit 10(k)
CHECKFREE CORPORATION
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
This Amended and Restated Registration Rights Agreement (this "Agreement")
is made and entered into as of January 24, 1997, by and between Checkfree
Corporation, a Delaware corporation (the "Company"), and the individual holder
of the Company's common stock, $.01 par value, ("Stockholder").
RECITALS
A. The Company, ISC Acquisition Corporation, an Ohio corporation and a
wholly owned subsidiary of the Company ("Acquisition"), and Security APL, Inc.,
an Illinois corporation ("Security "), entered into an Agreement and Plan of
Merger, dated March 21, 1996 (the "Merger Agreement"), pursuant to which
Acquisition was merged with and into Security on May 9, 1996 (the "Merger") and
all outstanding shares of the capital stock of Security were converted into the
right to receive shares of common stock, $.01 par value, of the Company (the
"Shares").
B. Each Stockholder was given certain registration rights with respect to
the Shares acquired in the Merger (the "Merger Shares") in accordance with the
terms of a certain Registration Rights Agreement, dated as of May 6, 1996 (the
"Prior Registration Rights Agreement").
C. This Agreement amends, restates, and supersedes the Prior Registration
Rights Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual representations,
warranties, covenants, agreements and conditions contained herein, the parties
hereto hereby agree as follows:
Section 1. Certain Definitions. As used in this Agreement, the following
terms shall have the following respective meanings:
"Commission" shall mean the Securities and Exchange Commission or any
other federal agency at the time administering the Securities Act.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended,
or any similar federal statute and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time.
"Holder" shall mean each person holding Registrable Securities.
"Initiating Holders" shall mean any Holders who in the aggregate are
Holders of more than fifty percent (50%) of the then Registrable Securities.
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"Merger Effective Date" shall mean May 9, 1996.
"Registrable Securities" shall mean the Merger Shares; provided, however,
that the Merger Shares shall no longer be treated as Registrable Securities (A)
when the time specified as the holding period for such shares under Commission
Rule 144(d) under the Securities Act, or any similar rule or regulation of the
Commission as the same shall be in effect at the time, in the opinion of counsel
to the Company, shall have expired from the Merger Effective Date or will so
expire within 90 days; (B) after such shares have been sold to or through a
broker or dealer or underwriter in a public distribution or a public securities
transaction; (C) after such shares have been transferred and the registration
rights granted by this Agreement have not been transferred in accordance with
Section 13 hereof; or (D) after two years have expired from the Merger Effective
Date.
The terms "register," "registered" and "registration" shall refer to a
registration effected by preparing and filing with the Commission a registration
statement in compliance with the Securities Act, and the declaration or ordering
of the effectiveness of such registration statement.
"Registration Expenses" shall mean all expenses, except Selling Expenses
as defined below, incurred by the Company in complying with a registration under
Sections 5, 6, or 7 hereof, including, without limitation, all registration,
qualification and filing fees, printing expenses, escrow fees, fees and
disbursements of counsel and accountants for the Company, blue sky fees and
expenses, and the expense of any special audits incident to or required by any
such registration.
"Restricted Securities" shall mean the securities of the Company required
to bear the legend set forth in Section 3 hereof.
"Securities Act" shall mean the Securities Act of 1933, as amended, or any
similar federal statute and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time.
"Selling Expenses" shall mean all underwriting discounts, selling
commissions and stock transfer taxes applicable to the securities registered by
the Holders and all fees and disbursements of counsel for any Holder.
Section 2. Restrictions on Transferability. During the term of this
Agreement, the Merger Shares held by Stockholder shall not be sold, assigned,
transferred or pledged except upon satisfaction of the conditions specified in
Sections 3 and 4 of this Agreement, which conditions are intended to ensure
compliance with the provisions of the Securities Act. Stockholder will cause any
proposed purchaser, assignee, transferee, or pledgee of the Merger Shares to
agree to take and hold such securities subject to the provisions and conditions
of this Agreement.
Section 3. Restrictive Legend. Each certificate representing (i) the
Merger Shares and (ii) any other securities issued in respect of the Merger
Shares upon any stock split, stock dividend, recapitalization, merger,
consolidation or similar event, shall (unless otherwise permitted by the
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provisions of Section 4 below) be stamped or otherwise imprinted with a legend
in substantially the following form (in addition to any legend required under
applicable state securities laws):
THE SHARES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, OR UNDER THE SECURITIES LAWS OF
ANY STATE, AND HAVE BEEN ISSUED PURSUANT TO EXEMPTIONS FROM REGISTRATION
THAT DEPEND IN PART ON THE INTENT OF THE PURCHASER TO ACQUIRE FOR
INVESTMENT AND WITHOUT A VIEW TOWARDS DISTRIBUTION. THEREFORE, SUCH SHARES
MAY NOT BE SOLD OR TRANSFERRED EXCEPT UPON REGISTRATION OR UPON DELIVERY
TO THE COMPANY OF COMMUNICATIONS FROM THE SECURITIES AND EXCHANGE
COMMISSION AND ANY STATE REGULATORY AUTHORITIES CONCERNED, OR AN OPINION
OF COUNSEL SATISFACTORY TO COUNSEL FOR THE COMPANY, THAT REGISTRATION IS
NOT REQUIRED FOR SUCH SALE OR TRANSFER.
Stockholder consents to the Company making a notation on its records and
giving instructions to any transfer agent of the Merger Shares in order to
implement the restrictions on transfer established in this Agreement.
Section 4. Notice of Proposed Transfers. Stockholder, by acceptance of
each certificate representing Restricted Securities, agrees to comply in all
respects with the provisions of this Section 4 during the term of this
Agreement. Prior to any proposed sale, assignment, transfer or pledge of any
Restricted Securities (other than transfers not involving a change in beneficial
ownership), unless there is in effect a registration statement under the
Securities Act covering the proposed transfer, Stockholder shall give written
notice to the Company of its intention to effect such transfer, sale, assignment
or pledge. Each such notice shall describe the manner and circumstances of the
proposed transfer, sale, assignment or pledge in sufficient detail, and shall be
accompanied, at Stockholder's expense by either (i) an unqualified written
opinion of legal counsel who shall be, and whose legal opinion shall be,
reasonably satisfactory to the Company addressed to the Company, to the effect
that the proposed transfer of the Restricted Securities may be effected without
registration under the Securities Act, or (ii) a "no action" letter from the
Commission to the effect that the transfer of such securities without
registration will not result in a recommendation by the staff of the Commission
that action be taken with respect thereto, whereupon Stockholder shall be
entitled to transfer such Restricted Securities in accordance with the terms of
the notice delivered by Stockholder to the Company. Each certificate evidencing
the Restricted Securities transferred as above provided shall bear, except if
such transfer is made pursuant to Rule 144, the appropriate restrictive legend
set forth in Section 3 above, except that such certificate shall not bear such
restrictive legend if in the opinion of counsel for Stockholder and the Company
such legend is not required in order to establish compliance with any provision
of the Securities Act.
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Section 5. Demand Registration Rights.
(a) Notice for Registration. After September 1, 1996, if the Company
shall receive from Initiating Holders a written request that the Company effect
a registration under the Securities Act on Form S-3 (or any successor form to
Form S-3) for a public offering of Registrable Securities, the reasonably
anticipated aggregate price to the public of which, net of underwriting
discounts and commissions, would reasonably exceed $5,000,000, and the Company
is then entitled, or will be entitled within 30 days after the receipt of such
written request, to use Form S-3 under applicable Commission rules to register
the Registrable Securities for such an offering, the Company will:
(i) promptly give written notice of the proposed registration
to all other Holders; and
(ii) as soon as practicable, use its best efforts to effect
such registration (including, without limitation, appropriate qualification
under applicable blue sky or other state securities laws and appropriate
compliance with applicable regulations issued under the Securities Act and any
other governmental requirements or regulations) as may be so requested and as
would permit or facilitate the sale and distribution of all or such portion of
such Registrable Securities as are specified in such request, together with all
or such portion of the Registrable Securities of any Holder or Holders joining
in such request as are specified in a written request received by the Company
within 10 days after receipt of such written notice from the Company;
Provided, however, that the Company shall not be obligated to take any
action to effect any such registration pursuant to this Section 5 as follows:
(A) In any particular jurisdiction in which the Company
would be required to execute a general consent to service of process in
effecting such registration unless the Company is already subject to service in
such jurisdiction and except as may be required by the Securities Act;
(B) If the Company, within 10 days of the receipt of a
registration request of the Initiating Holders received after November 30, 1996,
gives written notice to the Initiating Holders of the Company's bona fide
intention to effect the filing, within 60 days of receipt of such request, of a
registration statement with the Commission for the sale of securities by the
Company (other than with respect to a registration statement relating to a Rule
145 transaction, an offering solely to employees or any other registration which
is not appropriate for the registration of Registrable Securities), in which
event, (i) the Stockholders shall be entitled to exercise any rights available
under Section 6 hereof, (ii) the Company shall be required in good faith to
employ all reasonable efforts to cause its registration statement to become
effective and to give prompt written notice to the Initiating Stockholders if
the Company abandons its effort to file or cause its registration statement to
become effective, and (iii) in the event the Company gives notice that it has
abandoned its registration statement efforts, the Company shall promptly renew
its best efforts to
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register the Registrable Securities that were the subject of the demand
registration notice if so requested in writing by the Initiating Holders within
10 days after their receipt of notice that the Company has abandoned its
registration efforts;
(C) If a demand registration hereunder is received after
November 30, 1996, then during the period starting with the filing of and ending
on the date 90 days immediately following the effective date of any registration
statement pertaining to securities of the Company (other than a registration of
securities in a Rule 145 transaction or with respect to an employee benefit
plan), provided that the Company is actively employing in good faith all
reasonable efforts to cause such registration statement to become effective;
(D) If a demand registration hereunder is received after
November 30, 1996, if the Company shall furnish to the Initiating Holders a
certificate signed by the President of the Company stating that in the good
faith judgment of the Board of Directors of the Company it would be seriously
detrimental, for the specific reasons stated in such certificate, to the Company
or its stockholders for a registration statement to be filed in the near future,
then the Company's obligation to use its best efforts to register under this
Section 5 shall be deferred for a period not to exceed 60 days from the date of
receipt of the written request from the Initiating Holders;
(E) If the Company has effected three registrations of
Registrable Securities pursuant to this Section 5, and such registrations have
been declared or ordered effective;
(F) Unless at least 180 days shall have expired from the
effectiveness of a previous registration of Registrable Securities pursuant to
this Section 5;
(G) To the extent that the request for registration
includes more than 25% of the original number of Merger Shares, as adjusted for
stock dividends and stock splits;
(H) If the Company gives written notice, within 15 days
after receipt of a notice for registration under this Section 5, that it offers
to purchase for cash all of the Registrable Securities as are requested by
Holders to be included and as are properly includible in such registration, at a
purchase price equal to the higher of (i) the average of the per share closing
prices on the Nasdaq National Market ("Nasdaq NM") of the Company's Shares for
the three consecutive trading days ended on the day prior to the date of receipt
by the Company of a demand for registration hereunder, or (ii) the average of
the per share closing prices on the Nasdaq NM of the Shares for the three
consecutive trading days prior to the date the Company gives notice of the
exercise of its right to purchase hereunder, payment to be made within 30 days
after the Company's receipt of the Shares to be purchased; or
(I) If the Company shall be advised by its independent
public accountants or its legal counsel that the sale of the Registrable
Securities by affiliates would jeopardize the pooling of interests accounting
for the Merger under Accounting Principles Bulletin
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No. 16 or Commission Accounting Series Release Nos. 130 (October 5, 1972) or 135
(January 18, 1973), such sale shall be delayed for such period of time as to not
jeopardize such accounting.
Subject to the foregoing clauses (A) through (I), the Company shall file a
registration statement covering the Registrable Securities so requested to be
registered as soon as practicable after receipt of the request or requests of
the Initiating Holders.
(b) Underwriting. In the event that a registration requested by the
Initiating Holders pursuant to this Section 5 is for a registered public
offering involving an underwriting, the Company shall so advise the Holders as
part of the notice given pursuant to Section 5(a)(i). In such event, the right
of any Holder to registration pursuant to this Section 5 shall be conditioned
upon such Holder's participation in the underwriting arrangements required by
this Section 5, and the inclusion of such Holder's Registrable Securities in the
underwriting to the extent requested shall be limited as provided herein.
The Company shall (together with all Holders proposing to distribute their
securities through such underwriting) enter into an underwriting agreement in
customary form with managing underwriter or underwriters selected for such
underwriting by the Company. Notwithstanding any other provision of this Section
5, if the managing underwriter or underwriters advise the Initiating Holders in
writing that marketing factors require a limitation of the number of shares to
be underwritten, then the Company shall so advise all Holders participating and
the number of shares of Registrable Securities that may be included in the
registration and underwriting shall be allocated among all Holders thereof in
proportion, as nearly as practicable, to the respective amounts of Registrable
Securities held by such Holders at the time of filing the registration
statement. No Registrable Securities excluded from the underwriting by reason of
the underwriters' marketing limitation shall be included in such registration.
To facilitate the allocation of shares in accordance with the above provisions,
the Company or the underwriters may round the number of shares allocated to any
Holder to the nearest 100 shares.
If any Holder disapproves of the terms of the underwriting, such person
may elect to withdraw therefrom by written notice to the Company. The
Registrable Securities so withdrawn shall also be withdrawn from registration,
and such Registrable Securities shall not be transferred in a public
distribution prior to ninety (90) days after the effective date of such
registration, or such other shorter period of time as the underwriters may
require.
Section 6. Piggyback Registration Rights.
(a) Notice of Registration. If at any time or from time to time on
or before the expiration of 21 months from the Merger Effective Date, the
Company shall determine to register any of its Shares, either for its own
account or the account of a security holder or holders, other than a
registration relating solely to employee benefit plans or a registration
relating solely to a Commission Rule 145 transaction, the Company will:
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(i) promptly give to each Holder written notice thereof; and
(ii) include in such registration and in any underwriting
involved therein, all the Registrable Securities specified in a written request
or requests, made within 10 days after receipt of such written notice from the
Company, by any Holder; provided, however, that the Company shall not be
required to include in the registration at the effective date thereof any
Registrable Securities if the Company shall be advised by its independent public
accountants or legal counsel that the sale of such Registrable Securities by
affiliates would jeopardize the pooling of interests accounting for the Merger
under Accounting Principles Bulletin No. 16 or Commission Accounting Series
Release Nos. 130 (October 5, 1972) or 135 (January 18, 1973).
(b) Underwriting. If the registration of which the Company gives
notice is for a registered public offering involving an underwriting, the
Company shall so advise the Holders as a part of the written notice given
pursuant to Section 6(a)(i). In such event the right of any Holder to
registration pursuant to this Section 6 shall be conditioned upon such Holder's
participation in such underwriting and the inclusion of such Holder's
Registrable Securities in the underwriting to the extent provided herein. All
Holders proposing to distribute their securities through such underwriting shall
(together with the Company and any other stockholders distributing their
securities through such underwriting) enter into an underwriting agreement in
customary form with the managing underwriters selected by the Company.
Notwithstanding any other provision of this Section 6, if the managing
underwriters determine that marketing factors require a limitation of the number
of shares to be underwritten, the managing underwriters may limit the
Registrable Securities to be included in such registration. The Company shall so
advise all Holders and the number of shares of Registrable Securities that may
be included in the registration and underwriting shall be allocated among all
Holders in proportion, as nearly as practicable, to the respective amounts of
Registrable Securities held by such Holders at the time of filing the
registration statement. To facilitate the allocation of shares in accordance
with the above provisions, the Company may round the number of shares allocated
to any Holder or other stockholder to the nearest 100 shares. If any Holder or
other stockholder disapproves of the terms of any such underwriting, he may
elect to withdraw therefrom by written notice to the Company and the managing
underwriter. Any securities excluded or withdrawn from such underwriting shall
be withdrawn from such registration, and shall not be transferred in a public
distribution prior to ninety (90) days after the effective date of the
registration statement relating thereto, or such other shorter period of time as
the underwriters may require. The Company may include Shares held by
stockholders other than Holders in a registration statement pursuant to this
Section 6, to the extent that the amount of Registrable Securities otherwise
includible in such registration statement would not thereby be diminished.
(c) Right to Terminate Registration. The Company shall have the
right to terminate or withdraw any registration initiated by it under this
Section 6 prior to the effectiveness of such registration whether or not any
Holder has elected to include securities in such registration.
Section 7. Shelf Registration Rights. If at any time or from time to time
on or before the expiration of 21 months from the Merger Effective Date, the
Company shall determine to register
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any of its Shares, for the account of a security holder or holders, pursuant to
a registration statement on Form S-3 for a continuous registered shelf offering
under Rule 415 of the Securities Act (the "Shelf Registration Statement")
covering the registration of all Registrable Securities (the "Shelf Registered
Securities"), the Company will promptly give to each Holder written notice
thereof and include in such registration all the Registrable Securities. The
Company shall use its best efforts to cause the Shelf Registration Statement and
the registration of the Shelf Registered Securities thereunder to be declared
effective by the SEC as soon as practicable following the Effective Time, and
shall continuously maintain the effectiveness of the Shelf Registration
Statement at all times until the expiration of 21 months from the Merger
Effective Date. Stockholder's right to offer and sell Shelf Registered
Securities pursuant to the Shelf Registration Statement shall be subject to the
following limitations:
(a) Limitation on Amount of Securities Sold. For as long as
Stockholder is entitled to registration rights pursuant to this Agreement, the
amount of Shelf Registered Securities that may be sold by Stockholder in each
sale of Shelf Registered Securities in reliance on the Shelf Registration
Statement under this Section 7, together with all sales of other shares of the
Company's Common Stock for the account of Stockholder within the preceding three
months (excluding any sales of the Company's Common Stock by Stockholder
pursuant to registrations filed pursuant to Section 5 or 6 of this Agreement),
shall not exceed the greater of (i) one percent (1%) of the shares of the
Company's Common Stock outstanding as shown by the most recent report or
statement published by the Company, or (ii) the average weekly reported volume
of trading in shares of the Company's Common Stock on all national securities
exchanges and/or reported through the automated quotation system of a registered
securities association during the four calendar weeks preceding Stockholder's
delivery to the Company of the notice required by Section 7(b).
(b) Notice of Proposed Sale. Initiating Holders shall give the
Company written notice of their bona fide intention to sell Shelf Registered
Securities pursuant to the Shelf Registration Statement at least seven (7)
business days in advance of the proposed date of sale, and the Company shall act
as soon as practicable to make any necessary filings with the Commission and
regulatory bodies as may be necessary to permit the sale of the Shelf Registered
Securities in accordance with Section 7(a).
(c) Minimum Amount of Securities Sold. Each request to sell Shelf
Registered Securities under this Section 7 shall be for such number of shares of
the Company's Common Stock having an aggregate sale price of at least $250,000.
(d) Curative Measures. If for any reason the Shelf Registration
Statement ceases to be effective at any time prior to the expiration of 21
months after the Merger Effective Date, then the Company shall use its best
efforts to cause the Shelf Registration Statement (or a new shelf registration
statement conforming to the provisions of this Section 7) to be declared
effective by the Commission and remain effective until the expiration of 21
months after the Merger Effective Date.
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Section 8. Limitations on Subsequent Registration Rights. Until the
expiration of 21 months from the Merger Effective Date, the Company shall not
enter into any agreement granting any holder or prospective holder of any
securities of the Company registration rights with respect to such securities
unless such new agreement specifies that the rights of the Holders hereunder
shall have preference to the holders of such new registration rights.
Section 9. Expenses of Registration. All Registration Expenses incurred in
connection with all registrations pursuant to Sections 5, 6, or 7 shall be borne
by the Company. All Selling Expenses relating to securities registered on behalf
of the Holders shall be borne by the Holders of such securities pro rata on the
basis of the number of shares so registered and sold.
Section 10. Registration Procedures. In the case of each registration
effected by the Company pursuant to this Agreement, each Holder participating
therein shall make the Holder with the largest number of Registrable Shares to
be included in the registration, or such other person or entity as the largest
participating Holder shall select, such Holder's attorney-in-fact
("Attorney-in-Fact") with respect to the registration, and the Company will keep
the Attorney-in-Fact, and each Holder if it so chooses, advised in writing as to
the initiation of each registration and as to the completion thereof. At its
expense the Company will:
(a) Prepare and file with the Commission a registration statement
with respect to such securities and use its best efforts to cause such
registration statement to become and remain effective for at least thirty (30)
days, and prepare and file with the Commission such amendments to such
registration statement and supplements to the prospectus contained therein as
may be necessary to keep such registration statement effective for at least
thirty (30) days, provided that no such registration shall constitute a shelf
registration under Rule 415 promulgated by the Commission under the Securities
Act;
(b) Enter into a written underwriting agreement in customary form
and substance reasonably satisfactory to the Company and the managing
underwriters of the public offering of such securities, if the offering is to be
underwritten in whole or in part;
(c) Furnish to the Holders participating in such registration and to
the underwriters of the securities being registered such reasonable number of
copies of the registration statement, preliminary prospectus, final prospectus
and such other documents as such Holders or the underwriters may reasonably
request in order to facilitate the public offering of such securities;
(d) Use its best efforts to register or qualify the securities
covered by such registration statement under such state securities or blue sky
laws of such jurisdictions as such participating Holders or the underwriters may
reasonably request within ten (10) days prior to the original filing of such
registration statement, except that the Company shall not for any purpose be
required to execute a general consent to service of process or to qualify to do
business as a foreign corporation in any jurisdiction where it is not so
qualified;
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(e) Notify the Holders or their Attorney-in-Fact promptly after it
shall receive notice thereof, of the time when such registration statement has
become effective or a supplement to any prospectus forming a part of such
registration statement has been filed;
(f) Notify the Holders or their Attorney-in-Fact promptly of any
request by the Commission to amend or supplement such registration statement or
prospectus or for additional information;
(g) Prepare and file with the Commission promptly upon the request
of any such Holders, any amendments or supplements to such registration
statement or prospectus which, in the reasonable opinion of counsel for such
Holders, is required under the Securities Act or the rules and regulations
thereunder in connection with the distribution of the Registrable Securities by
such Holders;
(h) Prepare and promptly file with the Commission, and promptly
notify such Holders or their Attorney-in-Fact of the filing of, such amendment
or supplement to such registration statement or prospectus as may be necessary
to correct any statements or omissions if, at the time when a prospectus
relating to such securities is required to be delivered under the Securities
Act, any event has occurred as the result of which any such prospectus or any
other prospectus as then in effect would include an untrue statement of a
material fact or omit to state any material fact necessary to make the
statements therein not misleading in light of the circumstances in which they
were made;
(i) In case any of such Holders or any underwriter for any of such
Holders is required to deliver a prospectus at a time when the prospectus then
in effect may no longer be used under the Securities Act, prepare promptly upon
request such amendment or amendments to such registration statement and such
prospectuses as may be necessary to permit compliance with the requirements of
the Securities Act;
(j) Advise such Holders or their Attorney-in-Fact, promptly after it
shall receive notice or obtain knowledge thereof, of the issuance of any stop
order by the Commission suspending the effectiveness of such registration
statement or the initiation or threatening of any proceeding for that purpose
and promptly use its best efforts to prevent the issuance of any stop order or
to obtain its withdrawal if such stop order should be issued; and
(k) At the request of any such Holder, furnish on the effective date
of the registration statement and, if such registration includes an underwritten
public offering, at the closing provided for in the underwriting agreement, (i)
an opinion, dated each such date, of the counsel representing the Company for
the purposes of such registration, addressed to the underwriters, if any, and to
the Holder or Holders making such request, covering such matters with respect to
the registration statement, the prospectus and each amendment or supplement
thereto, proceedings under state and federal securities laws, other matters
relating to the Company, the securities being registered and the offer and sale
of such securities as are customarily the subject of opinions of
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issuer's counsel provided to underwriters in underwritten public offerings, and
(ii) to the extent the Company's accounting firm is willing to do so, a letter
dated each such date, from the independent public accountants of the Company,
addressed to the underwriters, if any, and to the Holder or Holders making such
request, stating that they are independent public accountants within the meaning
of the Securities Act and that in the opinion of such accountants the financial
statements and other financial data of the Company included in the registration
statement or the prospectus or any amendment or supplement thereto comply in all
material respects with the applicable accounting requirements of the Securities
Act, and additionally covering such other financial matters, including
information as to the period ending not more than five (5) business days prior
to the date of such letter with respect to the registration statement and
prospectus, as the underwriters or such requesting Holder or Holders may
reasonably request.
Section 11. Information by Holders. The Holders of Registrable Securities
included in any registration shall furnish the Company such information
regarding such Holders, the Registrable Securities held by them and the
distribution proposed by such Holders as the Company may request in writing and
as shall be required in connection with any registration referred to in this
Agreement.
Section 12. Indemnification.
(a) The Company will indemnify each Holder, each of its officers,
directors and partners, and each person controlling such Holder within the
meaning of Section 15 of the Securities Act, with respect to which registration,
qualification or compliance has been effected pursuant to this Agreement, and
each underwriter, if any, and each person who controls any underwriter within
the meaning of Section 15 of the Securities Act, against all expenses, claims,
loses, damages or liabilities (or actions in respect thereof), including any of
the foregoing incurred in settlement of any litigation, commenced or threatened,
arising out of or based on any untrue statement (or alleged untrue statement) of
a material fact contained in any registration statement, prospectus, offering
circular or other document, or any amendment or supplement thereto, incident to
any such registration, qualification or compliance, or based on any omission (or
alleged omission) to state therein a material fact required to be stated therein
or necessary to make the statements therein, in light of the circumstances in
which they were made, not misleading, or any violation by the Company of the
Securities Act or any rule or regulation promulgated under the Securities Act
applicable to the Company in connection with any such registration,
qualification or compliance, and the Company will reimburse each such Holder,
each of its officers and directors, and each person controlling such Holder,
each such underwriter and each person who controls any such underwriter, for any
legal and any other expenses reasonably incurred in connection with
investigating, preparing or defending any such claim, loss, damage, liability or
action, provided that the Company will not be liable in any such case to the
extent that any such claim, loss, damage, liability or expense arises out of or
is based on any untrue statement or omission or alleged untrue statement or
omission, made in reliance upon and in conformity with written information
furnished to the Company by an instrument duly executed by such Holder,
controlling person or underwriter and stated to be specifically for use therein.
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(b) Each Holder will, if Registrable Securities held by such Holder
are included in the securities as to which such registration, qualification or
compliance is being effected, indemnify the Company, each of its directors and
officers, each underwriter, if any, of the Company's securities covered by such
a registration statement, each person who controls the Company or such
underwriter within the meaning of Section 15 of the Securities Act, and each
other such Holder, each of its officers and directors and each person
controlling such Holder within the meaning of Section 15 of the Securities Act,
against all claims, losses, damages and liabilities (or actions in respect
thereof), arising out of or based on any untrue statement (or alleged untrue
statement) of a material fact contained in any such registration statement,
prospectus, offering circular or other document, or any omission (or alleged
omission) to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and will reimburse the
Company, such Holders, such directors, officers, persons, underwriters or
control persons for any legal or any other expenses reasonably incurred in
connection with investigating or defending any such claim, loss, damage,
liability or action, in each case to the extent, but only to the extent, that
such untrue statement (or alleged untrue statement) or omission (or alleged
omission) is made in such registration statement, prospectus, offering circular
or other document in reliance upon and in conformity with written information
furnished to the Company by an instrument duly executed by such Holder and
stated to be specifically for use therein. Notwithstanding the foregoing, the
liability of each Holder under this subsection (b) shall be limited to an amount
equal to the initial public offering price of the shares sold by such Holder,
unless such liability arises out of or is based on willful conduct by such
Holder.
(c) Each party entitled to indemnification under this Section 12
(the "Indemnified Party") shall give notice to the party required to provide
indemnification (the "Indemnifying Party") promptly after such Indemnified Party
has actual knowledge of any claim as to which indemnity may be sought, and shall
permit the Indemnifying Party to assume the defense of any such claim or any
litigation resulting therefrom, provided that counsel for the Indemnifying
Party, who shall conduct the defense of such claim or litigation, shall be
approved by the Indemnified Party (whose approval shall not unreasonably be
withheld), and the Indemnified Party may participate in such defense at such
party's expense, and provided further that the failure of any Indemnified Party
to give notice as provided herein shall not relieve the Indemnifying Party of
its obligations under this Agreement unless the failure to give such notice is
materially prejudicial to an Indemnifying Party's ability to defend such action
and provided further, that the Indemnifying Party shall not assume the defense
for matters as to which there is a conflict of interest or separate and
different defenses. No Indemnifying Party, in the defense of any such claim or
litigation, shall, except with the consent of each Indemnified Party, consent to
entry of any judgment or enter into any settlement which does not include as an
unconditional term thereof the giving by the claimant or plaintiff to such
Indemnified Party of a release from all liability in respect to such claim or
litigation.
Section 13. Non-assignability of Registration Rights. The registration
rights granted by this Agreement to Stockholders may not be transferred except
by will or the laws of descent or distribution, except that Xxx X. Xxxxxxx, III.
may transfer such rights to one or more trusts that he may establish for estate
planning purposes.
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Section 14. Standoff Agreement. Each Holder agrees, so long as such Holder
holds at least one percent (1%) of the Company's outstanding voting equity
securities, that, upon request of the Company or the underwriters managing an
underwritten offering of the Company's securities, such Holder will not sell,
make any short sale of, loan, grant any option for the purchase of, or otherwise
dispose of any Registrable Securities (other than those included in the
registration) without the prior written consent of the Company or such
underwriters, as the case may be, for such period of time (not to exceed 90
days) from the effective date of such registration as may be requested by the
underwriters; provided, that if any officer or director of the Company who owns
at least one percent (1%) of the outstanding voting equity securities of the
Company does not agree to such restrictions, then the Holders shall not be
required to do so either.
Section 15. Execution in Counterparts. For the convenience of the parties,
this Agreement may be executed in one or more counterparts, each of which shall
be deemed an original, but all of which together shall constitute one and the
same instrument.
Section 16. Notices. All notices that are required or may be given
pursuant to the terms of this Agreement shall be in writing and shall be
sufficient in all respects if given in writing and delivered by hand or national
overnight courier service, transmitted by telecopy or mailed by registered or
certified mail, postage prepaid, and shall be deemed given upon receipt, as
follows:
If to the Company to:
CHECKFREE CORPORATION
0000 Xxxx Xxxxx Xxxxxx Xxxx
Xxxxxxxx, Xxxxxxx 00000
(000) 000-0000:
Attention: Xxxxx X. Xxxxx, President and Chief Executive Officer
If to the Stockholder or Holder to:
The address appearing on the books and records of
the Company or its transfer agent as the address of
the Stockholder or Holder
or such other address or addresses as any party hereto shall have designated by
notice in writing to the other parties hereto.
Section 17. Applicable Law. This Agreement shall be governed by and
construed in accordance with he laws of the State of Ohio, without regard to its
conflict of laws principles.
Section 18. Entire Agreement. This Agreement constitutes the entire
agreement among the parties hereto with respect to the subject matter hereof and
supersedes any and all prior agreements and understandings, oral and written,
with respect to the subject matter hereof.
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IN WITNESS WHEREOF, the parties have executed and delivered this Agreement
as of the day and year first above written.
CHECKFREE CORPORATION STOCKHOLDER
By: _________________________ _____________________________
Its: _________________________ _____________________________
Print Name
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