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EXHIBIT 2
AGREEMENT AND PLAN OF MERGER
BY AND AMONG
CHECKFREE CORPORATION
(A DELAWARE CORPORATION)
AND
CHECKFREE MERGER CORPORATION
(A DELAWARE CORPORATION)
AND
CHECKFREE HOLDINGS CORPORATION
(A DELAWARE CORPORATION)
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AGREEMENT AND PLAN OF MERGER
This Agreement and Plan of Merger (this "Agreement"), is dated as of
December 22, 1997, by and among CHECKFREE CORPORATION, a Delaware corporation
("CheckFree"), CHECKFREE MERGER CORPORATION., a Delaware corporation, ("Merger
Sub"), and CHECKFREE HOLDINGS CORPORATION, a Delaware corporation ("CHC").
RECITALS
A. This Agreement provides for the merger of Merger Sub with and into
CheckFree (the "Merger"), which will be the surviving corporation, in accordance
with Section 251(g) of the General Corporation Laws of the State of Delaware
(the "DGCL"), upon the terms and conditions set forth herein and in accordance
with the applicable provisions of the DGCL. The purpose of the Merger is to
implement a holding company organizational structure under which CHC will be the
holding company for CheckFree's operating subsidiaries and CheckFree would
become a direct wholly-owned subsidiary of CHC.
B. The respective Boards of Directors of CheckFree, CHC, and Merger Sub
have approved the Merger upon the terms and subject to the conditions set forth
herein.
AGREEMENT
Accordingly, in consideration of the mutual promises and agreements set
forth herein, and in order to set forth the terms and conditions of the Merger
and the mode of carrying the same into effect, the parties hereby agree as
follows:
1. THE MERGER.
1.1 The Merger. At the Effective Time (as defined in Section 1.3
hereof), and subject to the terms and conditions of this Agreement and the DGCL,
Merger Sub shall be merged with and into CheckFree, the separate corporate
existence of Merger Sub shall thereupon cease, and CheckFree shall be the
surviving corporation in the Merger (the "Surviving Corporation").
1.2 Surviving Corporation. At the Effective Time, CheckFree shall
continue its corporate existence under the laws of the State of Delaware and
shall thereupon and thereafter possess all rights, privileges, powers and
franchises and all property of Merger Sub and shall be subject to all debts,
liabilities and duties of Merger Sub, all as provided under the DGCL.
1.3 Effective Time of the Merger. The Merger shall become effective and
be consummated when the Surviving Corporation shall have caused to be filed a
certified copy of this Agreement with the Secretary of State of the State of
Delaware (the "Delaware Secretary of State") in accordance with the DGCL (the
"Effective Time"), as set forth in Section 3.4 hereof.
1.4 Certificate of Incorporation of the Surviving Corporation.
Immediately following the Effective Time, the Certificate of Incorporation of
Merger Sub, as in effect immediately prior to the
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Effective Time, shall be restated as set forth in Exhibit A and as so amended
and restated shall thereafter continue in full force and effect as the
Certificate of Incorporation of the Surviving Corporation until further amended
or restated as provided therein and under the DGCL.
1.5 By-Laws of the Surviving Corporation. The By-Laws of Merger Sub, as
in effect immediately prior to the Effective Time, shall be amended and restated
immediately after the Effective Time as provided in Exhibit B and thereafter
serve as the By-Laws of the Surviving Corporation until thereafter amended or
repealed as provided therein and under the DGCL.
1.6 Directors and Officers of the Surviving Corporation. At the
Effective Time, the directors and executive officers of the Surviving
Corporation shall be those persons listed on Exhibit C attached hereto, in the
case of directors, to serve until their successors are elected and qualified
and, in the case of officers, to serve at the pleasure of the Board of Directors
of the Surviving Corporation.
2. CONVERSION OF SECURITIES AND ASSUMPTION OF CERTAIN OBLIGATIONS.
2.1 Conversion of Securities. At the Effective Time, by virtue of the
Merger and without any action on the part of CheckFree, CHC, Merger Sub or the
holders of any securities of the foregoing corporations:
2.1.1 Common Stock of Merger Sub. Each share of common stock, par
value $0.01 per share, of Merger Sub issued and outstanding immediately prior to
the Effective Time, shall be converted into one share of common stock, par value
$0.01 per share, of the Surviving Corporation.
2.1.2 Common Stock of CheckFree. Each share of common stock, par
value $0.01 per share, of CheckFree ("CheckFree Common Stock") issued and
outstanding or held in its treasury immediately prior to the Effective Time
shall be converted into one share of common stock, par value $0.01 per share, of
CHC ("CHC Common Stock"), and shall have the same designations, rights and
powers and preferences, and the qualifications, limitations and restrictions
thereof, as the CheckFree Common Stock being converted. Each certificate
representing shares of CheckFree Common Stock immediately prior to the Effective
Time shall be deemed to represent the same number of shares of CHC Common Stock.
In addition, the rights to purchase CheckFree preferred stock, previously
granted to holders of CheckFree Common Stock under a stockholder rights plan,
shall be deemed terminated as of the Effective Time.
2.1.3 Common Stock of CHC. Each share of CHC Common Stock issued
and outstanding immediately prior to the Effective Time shall automatically be
cancelled and retired and shall cease to exist.
2.1.4 CheckFree Stock Options and Other Awards. CHC shall assume
sponsorship and continue all the rights and obligations of CheckFree under the
1983 Incentive Stock Option Plan, the 1983 Non-Statutory Stock Option Plan, the
1993 Stock Option Plan, the 1995 Stock Option Plan,
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the Associate Stock Purchase Plan, the 401(k) Plan and all other stock option
and employee benefit plans and agreements of CheckFree (collectively, the
"Plans"). The outstanding options and other awards assumed by CHC shall be
exercisable upon the same terms and conditions as under the Plans immediately
prior to the Effective Time, except that, upon the exercise of each such option
or award, shares of CHC Common Stock shall be issuable in lieu of each share of
CheckFree Common Stock issuable upon the exercise thereof immediately prior to
the Effective Time.
2.1.5 Successor Issuer. It is the intent of the parties hereto that
CHC, as of the Effective Time, be deemed a "successor issuer" for purposes of
continuing offerings under the Securities Exchange Act of 1934, as amended.
2.2 Exchange of Certificates. Each holder of a certificate formerly
representing shares of CheckFree Common Stock shall be required to surrender
such certificate to CheckFree's transfer agent ("Transfer Agent"), along with a
properly completed transmittal letter in order to receive a certificate or
certificates of CHC representing the number of shares of CHC common stock into
which the shares of CheckFree Common Stock previously represented by such
CheckFree certificate have been converted pursuant to this Agreement. A letter
of transmittal will be mailed by the Transfer Agent to each former shareholder
of CheckFree as soon as reasonably practicable after the Effective Time. Until
surrendered and exchanged in accordance with this Section 2.2 or in the ordinary
course, each certificate representing CheckFree Common Stock shall be deemed and
treated for all corporate purposes at any time after the Effective Time to
evidence the ownership of the number of shares of CHC into which such shares of
CheckFree were converted pursuant to Section 2.1.2 herein.
2.3 CheckFree Stock Transfer Books. At the Effective Time, the stock
transfer books for the shares of CheckFree Common Stock which will be converted
to CHC Common Stock pursuant to Section 2.1 hereof shall be deemed closed, and
no transfer of such shares shall thereafter be made or consummated.
2.4 Other Agreements. At the Effective Time, CHC shall assume any
obligation of CheckFree to deliver or make available shares of CheckFree Common
Stock under any agreement, including but not limited to, all warrants and option
agreements, or employee benefit plan not specifically referred to in this
Section 2 to which CheckFree or any of its subsidiaries is a party. Any
reference to CheckFree Common Stock under any such agreement or employee benefit
plan shall be deemed to be a reference to CHC Common Stock and one share of CHC
Common Stock shall be issuable in lieu of each share of CheckFree Common Stock
required to be issued by any such agreement or employee benefit plan, subject to
subsequent adjustment as provided in any such agreement or employee benefit
plan.
3. COMPLIANCE WITH SECTION 251(G) OF THE DGCL
Prior to the Effective Time, the parties hereto will take all steps
necessary to comply with Section 251(g) of the DGCL, including without
limitation, the following:
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3.1 Certificate of Incorporation and By-Laws of CHC. At the Effective
Time, the Certificate of Incorporation and By-Laws of CHC shall be in the form
of the Certificate of Incorporation and By-Laws of CheckFree, as in effect
immediately prior to the Effective Time.
3.2 Directors and Officers of CHC. At the Effective Time, the directors
of CheckFree immediately prior to the Effective Time shall be the directors of
CHC until their successors are elected and qualified. The officers of CHC will
be substantially similar to the officers of CheckFree immediately prior to the
Effective Time, to serve at the pleasure of the Board of Directors of CHC.
3.3 Listing of CHC Common Stock. The CHC Common Stock to be issued and
initially reserved for issuance pursuant to the transactions contemplated herein
shall have been approved for quotation, upon official notice of issuance, by the
Nasdaq National Market.
3.4 Filings. At the Effective Time, the Surviving Corporation shall
cause a certified copy of this Agreement to be executed and filed with the
Delaware Secretary of State. At the Effective Time, to the extent necessary to
effectuate the amendments to the certificates of incorporation of the Surviving
Corporation and CHC contemplated by this Agreement, each of the Surviving
Corporation and CHC shall cause to be filed with the Delaware Secretary of State
such certificates or documents required to give effect thereto.
4. MISCELLANEOUS.
4.1 Amendment. At any time prior to the Effective Time, the parties
hereto may, to the extent permitted by the DGCL, by written agreement amend,
modify or supplement any provision of this Agreement.
4.2 Termination. This Agreement may be terminated and the Merger
abandoned by the Board of Directors or duly authorized committees thereof of
CheckFree at any time prior to the filing of the certified copy of this
Agreement with the Delaware Secretary of State.
4.3 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware applicable to agreements made
and to be performed entirely within such State.
4.4 Headings. The headings set forth herein are for convenience only
and shall not be used in interpreting the text of the section in which they
appear.
4.5 Counterparts. This Agreement may be executed in one or more
counterparts which together shall constitute a single agreement.
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IN WITNESS WHEREOF, CheckFree, CHC, and Merger Sub, pursuant to the
approval and authority duly given by resolutions adopted by their respective
Boards of Directors, have caused this Agreement to be executed as of the date
first above written by their respective officers thereunto duly authorized.
CHECKFREE CORPORATION
/s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
Title: President and Chief Executive Officer
CHECKFREE MERGER CORPORATION
/s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
Title: President and Chief Executive Officer
CHECKFREE HOLDINGS CORPORATION
/s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
Title: President and Chief Executive Officer
CERTIFICATE OF SECRETARY
The undersigned, Secretary of Checkfree Corporation , a corporation
organized and existing under the laws of the State of Delaware (the
"Corporation"), hereby certifies that the Agreement and Plan of Merger (the
"Agreement") to which this Certificate is attached has been executed on behalf
of the Corporation by Xxxxx X. Xxxxx, President and Chief Executive Officer, on
behalf of CheckFree Merger Corporation, a Delaware corporation by Xxxxx X.
Xxxxx, President and Chief Executive Officer, and on behalf of the CheckFree
Holdings Corporation, a Delaware corporation by Xxxxx X. Xxxxx, President and
Chief Executive Officer. The Agreement has been adopted by the Board of
Directors of the Corporation pursuant to Section 251(g) of the Delaware General
Corporation Law and the conditions specified in the first sentence of such
subsection have been satisfied.
IN WITNESS WHEREOF, the undersigned has executed this Certificate as
the of this 22nd day of December, 1997.
/s/ Xxxxxx X. Xxxxxxxx
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Xxxxxx X. Xxxxxxxx, Secretary
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