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EXHIBIT 10(lll)
CHECKFREE CORPORATION
STOCKHOLDER AGREEMENT
This Stockholder Agreement (this "AGREEMENT") is made and entered into
as of September 15, 1996 (the "EFFECTIVE DATE") between Intuit Inc., a Delaware
corporation ("INTUIT"), and the undersigned stockholder ("STOCKHOLDER") of
Checkfree Corporation, a Delaware corporation ("CHECKFREE").
RECITALS
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A. Concurrently with the execution of this Agreement, Intuit,
Checkfree, Intuit Services Corporation, a Delaware corporation that is a
wholly-owned subsidiary of Intuit ("SUB"), and Checkfree Acquisition Corporation
II, a Delaware corporation that is a wholly-owned subsidiary of Checkfree
("NEWCO") have entered into an Agreement and Plan of Merger dated of even date
herewith, as such may be amended (the "PLAN"). The Plan provides that Newco will
be merged with and into Sub in a statutory merger (the "MERGER"). Pursuant to
the Merger, all the outstanding capital stock of Sub will be converted into
shares of Common Stock of Checkfree.
B. Stockholder is the beneficial owner (as defined in Rule
13d-3 under the Securities Exchange Act of 1934, as amended (the "EXCHANGE
ACT")) of such number of shares of the outstanding Common Stock of Checkfree as
is indicated on the final page of this Agreement (the "SHARES").
NOW, THEREFORE, the parties agree as follows:
1. AGREEMENT TO RETAIN SHARES.
1.1 TRANSFER AND ENCUMBRANCE. Stockholder agrees not to
transfer, sell, exchange, pledge or otherwise dispose of or encumber any of the
Shares or any New Shares (as defined in Section 1.2 below), or to make any offer
or agreement relating thereto, at any time prior to the Expiration Date;
provided, however, that notwithstanding the foregoing, Stockholder may transfer,
sell, exchange, pledge or otherwise dispose of or encumber up to five percent of
the Shares owned by Stockholder on the Effective Date (exclusive of any New
Shares). As used herein, the term "EXPIRATION DATE" means the earlier to occur
of: (i) such date and time as the Merger shall become effective in accordance
with the terms and provisions of the Plan or (ii) such date and time as the Plan
is terminated in accordance with the terms of Article VI of the Plan.
1.2 NEW SHARES. Stockholder agrees that any shares of
capital stock of Checkfree that Stockholder purchases or that Stockholder in any
other manner otherwise acquires beneficial ownership of after the Effective Date
of this Agreement ("NEW SHARES") shall be subject to the terms and conditions of
this Agreement to the same extent as if they constituted Shares.
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2. AGREEMENT TO VOTE SHARES.
2.1 VOTING REGARDING THE MERGER. At every meeting of the stockholders
of Checkfree called with respect to any of the following, and at every
adjournment thereof, and on every action or approval by the written consent of
the stockholders of Checkfree with respect to any of the following, Stockholder
agrees to vote the Shares and any New Shares:
(a) in favor of approval of the Plan and the Merger and any matter
that could reasonably be expected to facilitate the Plan and the Merger; and
(b) against approval of any proposal (including, but not limited to,
any proposal for a merger, consolidation, sale of assets, reorganization or
recapitalization of Checkfree with any party or any liquidation or winding up of
Checkfree) that may be made in opposition to, in competition with or as an
alternative to, or that would be likely to jeopardize or prevent, consummation
of the Merger and the Plan (each of the foregoing is hereinafter referred to as
an "OPPOSING PROPOSAL").
Stockholder further agrees not, directly or indirectly, to solicit or
encourage any offer from any party to Checkfree for an Opposing Proposal.
2.2 LIMITS. This Agreement is intended to bind Stockholder as a
stockholder of Checkfree only with respect to the specific matters set forth
herein and shall not prohibit Stockholder from acting in accordance with
Stockholder's fiduciary duties, if applicable, as a director of Checkfree.
3. IRREVOCABLE PROXY. Concurrently with the execution of this Agreement,
Stockholder agrees to deliver to Intuit a proxy in the form attached hereto as
EXHIBIT A (the "PROXY"), which shall be irrevocable to the extent provided in
Section 212 of the Delaware General Corporation Law, covering the total number
of Shares and New Shares of capital stock of Checkfree beneficially owned (as
such term is defined in Rule 13d-3 under the Exchange Act) by Stockholder set
forth therein.
4. REPRESENTATIONS, WARRANTIES AND COVENANTS OF STOCKHOLDER. Stockholder
hereby represents, warrants and covenants to Intuit as follows:
4.1 OWNERSHIP OF SHARES. Stockholder: (a) is the beneficial owner of
the Shares, which at the Effective Date of this Agreement and at all times up
until the Expiration Date will be free and clear of any liens, claims, options,
charges or other encumbrances; (b) does not beneficially own any shares of
capital stock of Checkfree other than the Shares (excluding shares as to which
Stockholder currently disclaims beneficial ownership in accordance with
applicable law); and (c) has full power and authority to make, enter into and
carry out the terms of this Agreement and the Proxy. Stockholder is not a party
to, and will not become a party to, any voting agreement or similar agreement or
commitment, and Stockholder has not granted, and will not grant, any proxy or
similar authorization to vote any Shares or any New Shares, that would be in
conflict or inconsistent with Stockholder's obligations under this Agreement and
the Proxy.
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4.2 NO PROXY SOLICITATIONS. Stockholder will not, and will not permit
any person or entity under Stockholder's control, to: (i) solicit proxies or
become a "participant" in a "solicitation" (as such terms are defined in
Regulation 14A under the Exchange Act) with respect to approval of an Opposing
Proposal or any other action in opposition to the Merger or otherwise encourage
or assist any party in taking or planning any action that would compete with,
serve as an alternative to, restrain or otherwise serve to interfere with or
inhibit the timely consummation of the Merger in accordance with the terms of
the Plan or (ii) initiate a stockholders' vote or action by written consent of
Checkfree stockholders in favor of an Opposing Proposal or any other action in
opposition to the Merger; or (ii) become a member of a "group" (as such term is
used in Section 13(d) of the Exchange Act) with respect to any voting securities
of Checkfree in favor of an Opposing Proposal or any other action in opposition
to the Merger.
5. CONSENT AND WAIVER. Stockholder hereby gives any consents or waivers
that are reasonably required for the consummation of the Merger under the terms
of any agreement to which Stockholder is a party or pursuant to any rights
Stockholder may have.
6. TERMINATION. This Agreement shall terminate and shall have no further
force or effect after the Expiration Date.
7. MISCELLANEOUS.
7.1 SEVERABILITY. If any term, provision, covenant or restriction of
this Agreement is held by a court of competent jurisdiction to be invalid, void
or unenforceable, then the remainder of the terms, provisions, covenants and
restrictions of this Agreement shall remain in full force and effect and shall
in no way be affected, impaired or invalidated.
7.2 BINDING EFFECT AND ASSIGNMENT. This Agreement and all of the
provisions hereof shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and permitted assigns, but, except as
otherwise specifically provided herein, neither this Agreement nor any of the
rights, interests or obligations of the parties hereto may be assigned by either
of the parties without the prior written consent of the other.
7.3 AMENDMENTS AND MODIFICATION. This Agreement may not be modified,
amended, altered or supplemented except by the execution and delivery of a
written agreement executed by the parties hereto.
7.4 SPECIFIC PERFORMANCE; INJUNCTIVE RELIEF. The parties hereto
acknowledge that Intuit will be irreparably harmed and that there will be no
adequate remedy at law for a violation of any of the covenants or agreements of
Stockholder set forth herein. Therefore, it is agreed that, in addition to any
other remedies that may be available to Intuit upon any such violation, Intuit
shall have the right to enforce such covenants and agreements by specific
performance, injunctive relief or by any other means available to Intuit at law
or in equity.
7.5 NOTICES. All notices and other communications pursuant to this
Agreement shall be in writing and deemed to be sufficient if contained in a
written instrument and shall be
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deemed given if delivered personally, telecopied, sent by nationally-recognized
overnight courier or mailed by registered or certified mail (return receipt
requested), postage prepaid, to the parties at the following address (or at such
other address for a party as shall be specified by like notice):
If to Intuit: Intuit Inc.
0000 Xxxxxx Xxxxxx
Xxxxxxxx Xxxx, XX 00000
Attn: Chief Executive Officer
with a copy to: Fenwick & West LLP
Xxx Xxxx Xxxx Xxxxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxxxx
If to Stockholder: To the address for notice set forth on the last
page hereof.
With a copy to: Checkfree Corporation
0000 Xxxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxx 00000
Attn: Chief Executive Officer
With a copy to: Porter, Wright, Xxxxxx & Xxxxxx
00 Xxxxx Xxxx Xxxxxx, Xxxxx 0000
Xxxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxxx, Esq.
7.6 GOVERNING LAW. This Agreement shall be governed by, construed and
enforced in accordance with the internal laws of the State of Delaware.
7.7 ENTIRE AGREEMENT. This Agreement and the Proxy contain the entire
understanding of the parties in respect of the subject matter hereof, and
supersedes all prior negotiations and understandings between the parties with
respect to such subject matter.
7.8 COUNTERPARTS. This Agreement may be executed in several
counterparts, each of which shall be an original, but all of which together
shall constitute one and the same agreement.
7.9 EFFECT OF HEADINGS. The section headings herein are for
convenience only and shall not affect the construction or interpretation of this
Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed on the day and year first above written.
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INTUIT INC. STOCKHOLDER
By: /s/ Xxxxx X. Xxxxxx Name: /s/ Xxxxx X. Xxxxx
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Title: Senior Vice President and CFO By: Xxxxx X. Xxxxx
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Stockholder's Address for Notice:
0000 Xxxxx Xxxx Xxxxxx
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Xxxxxxxx, Xxxx 00000
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Shares beneficially owned:
6,726,000 shares of Checkfree Common
Stock
ATTACHMENTS:
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Exhibit A - Proxy
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IRREVOCABLE PROXY
(TO VOTE CHECKFREE CORPORATION STOCK)
The undersigned stockholder of Checkfree Corporation, a Delaware
corporation ("CHECKFREE"), hereby irrevocably (to the fullest extent permitted
by Section 212 of the Delaware General Corporation Law) appoints the directors
on the Board of Directors of Intuit Inc., a Delaware corporation ("INTUIT"), and
each of them, as the sole and exclusive attorneys and proxies of the
undersigned, with full power of substitution and resubstitution, to vote and
exercise all voting and related rights (to the fullest extent that the
undersigned is entitled to do so) with respect to all of the shares of capital
stock of Checkfree that now are or hereafter may be beneficially owned by the
undersigned, and any and all other shares or securities of Checkfree issued or
issuable in respect thereof on or after the date hereof (collectively, the
"SHARES") in accordance with the terms of this Proxy. The Shares beneficially
owned by the undersigned stockholder of Checkfree as of the date of this Proxy
are listed on the final page of this Proxy. Upon the undersigned's execution of
this Proxy, any and all prior proxies given by the undersigned with respect to
any Shares are hereby revoked and the undersigned agrees not to grant any
subsequent proxies with respect to the Shares until after the Expiration Date
(as defined below) and not to grant any subsequent proxies with respect to the
Shares that may be inconsistent or in conflict with the terms of this Proxy.
This proxy is irrevocable (to the extent provided in Section 212 of the
Delaware General Corporation Law), is granted pursuant to that certain
Stockholder Agreement dated as of September 15, 1996 by and among Intuit and the
undersigned stockholder (the "STOCKHOLDER AGREEMENT"), and is granted in
consideration of Intuit entering into that certain Agreement and Plan of Merger
dated as of September 15, 1996, as such may be amended (the "PLAN"), by and
among Intuit, Checkfree, Intuit Services Corporation, a Delaware corporation and
wholly-owned subsidiary of Intuit ("SUB") and Checkfree Acquisition Corporation
II, a Delaware corporation that is a wholly-owned subsidiary of Checkfree
("NEWCO"). The Plan provides for the merger of Newco with and into Sub (the
"MERGER"). As used herein, the term "EXPIRATION DATE" shall mean the earlier to
occur of (i) such date and time as the Merger shall become effective in
accordance with the terms and provisions of the Plan or (ii) such date and time
as the Plan shall be terminated pursuant to Article VI thereof.
The attorneys and proxies named above, and each of them, are hereby
authorized and empowered by the undersigned, at any time prior to the Expiration
Date, to act as the undersigned's attorney and proxy to vote the Shares, and to
exercise all voting and other rights of the undersigned with respect to the
Shares (including, without limitation, the power to execute and deliver written
consents pursuant to Section 228 of the Delaware General Corporation Law), at
every annual, special or adjourned meeting of the stockholders of Checkfree and
in every written consent in lieu of such meeting:
(a) in favor of approval of the Plan and the Merger and any matter
that could reasonably be expected to facilitate the Merger; and
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(b) against approval of any proposal (including, but not limited to,
any proposal for a merger, consolidation, sale of assets,
reorganization or recapitalization of Checkfree with any party or
any liquidation or winding up of Checkfree) that may be made in
opposition to, in competition with or as an alternative to, or
that would be likely to jeopardize or prevent, consummation of
the Merger and the Plan (each of the foregoing is hereinafter
referred to as an "OPPOSING PROPOSAL").
The undersigned stockholder may vote the Shares on all other matters.
Any obligation of the undersigned hereunder shall be binding upon the
successors and assigns of the undersigned and any transferee of Shares.
This proxy is irrevocable (to the extent provided in Section 212 of the
Delaware General Corporation Law).
Dated: September 15, 1996 /s/ Xxxxx X. Xxxxx
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Signature of Stockholder
Xxxxx X. Xxxxx
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Print Name of Stockholder
Shares beneficially owned:
6,726,000 shares of Checkfree Common Stock
