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EXHIBIT 10(ppp)
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "AGREEMENT") is made and entered
into as of September 15, 1996 (the "EFFECTIVE DATE") by and between Checkfree
Corporation, a Delaware corporation (the "COMPANY"), and Intuit Inc., a Delaware
corporation ("INTUIT").
RECITALS
A. Intuit and the Company have entered into a certain Agreement and Plan of
Merger dated as of even date herewith (the "PLAN"), pursuant to which Checkfree
Acquisition Corporation II, a Delaware corporation and a wholly-owned subsidiary
of the Company ("NEWCO"), is to be merged with and into Intuit Services
Corporation, a Delaware corporation and a wholly-owned subsidiary of Intuit
("SUB") in a statutory merger (the "MERGER").
B. Upon consummation of the Merger, Intuit, as Sub's sole stockholder, will
receive shares of the Common Stock of the Company upon the conversion of the
outstanding stock of Sub in the Merger. As a condition to the consummation of
the Merger, the Plan provides that Intuit shall be granted certain registration
rights with respect to the shares of the Company's Common Stock to be issued to
it in the Merger, all as more fully set forth herein.
1. REGISTRATION RIGHTS.
1.1 DEFINITIONS. For purposes of this Section 1:
(a) REGISTRATION. The terms "REGISTER," "REGISTERED," and
"REGISTRATION" refer to a registration effected by preparing and filing a
registration statement in compliance with the Securities Act of 1933, as amended
(the "SECURITIES ACT"), and the declaration or ordering of effectiveness of such
registration statement.
(b) REGISTRABLE SECURITIES. The term "REGISTRABLE SECURITIES"
means: (1) all the shares of Common Stock of the Company issued to Intuit in the
Merger pursuant to the Plan, and (2) any shares of Common Stock of the Company
issued as (or issuable upon the conversion or exercise of any warrant, right or
other security which is issued as) a dividend or other distribution with respect
to, or in exchange for, or in replacement of, all such shares of Common Stock of
the Company described in clause (1) of this subsection (b); excluding in all
cases, however, any Registrable Securities sold by a person in a transaction in
which rights under this Section 1 are not assigned in accordance with this
Agreement or any Registrable Securities sold to the public or sold pursuant to
Rule 144 promulgated under the Securities Act.
(c) SEC. The term "SEC" or "COMMISSION" means the U.S. Securities
and Exchange Commission.
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1.2 DEMAND REGISTRATION.
(a) REQUEST BY INTUIT. If the Company shall receive at any time
after the closing of the Merger a written request ("REQUEST") from Intuit that
the Company file a registration statement under the Securities Act covering the
registration of Registrable Securities pursuant to this Section 1.2, then the
Company shall effect, as soon as practicable, the registration under the
Securities Act of all Registrable Securities which Intuit requests to be
registered in the Request, subject only to the limitations of this Section 1.2;
PROVIDED, that the Registrable Securities requested by Intuit to be registered
pursuant to such request must be at least twenty percent (20%) of the
Registrable Securities issued to Intuit in the Merger; PROVIDED, HOWEVER, that
the first such request for registration under this Section 1.2(a) may be for
such lesser number of shares of Registrable Securities as would reduce Intuit's
ownership of the Company's Common Stock to less than twenty percent (20%) of the
shares of the Company's Common Stock outstanding after such sale.
Notwithstanding the foregoing, if due to action by an underwriter as provided in
Section 1.2(b), or for any other reason beyond Intuit's control (including, but
not limited to, actions by Checkfree or any Checkfree stockholder, or any
agreement to which Checkfree is a party), Intuit is prevented from registering
the minimum number of Registrable Securities required for Intuit to request a
registration of Registrable Securities under this Section 1.2, then Intuit shall
nevertheless be entitled to have registered pursuant to this Section 1.2, such
lesser number of Registrable Securities as it is able to register.
(b) UNDERWRITING. The Registrable Securities covered by the
Request may be offered by means of an underwriting if Intuit so requests, and
Intuit shall so advise the Company as a part of its Request. If an underwriting
is requested by Intuit in its Request, then Intuit and the Company shall enter
into an underwriting agreement in customary form with the managing underwriter
or underwriters selected for such underwriting by the mutual agreement of the
Company and Intuit; PROVIDED, that neither the Company nor Intuit shall
unreasonably refuse to agree to a managing underwriter selected by the other,
but shall in good faith attempt to select mutually agreeable managing
underwriters. Notwithstanding any other provision of this Section 1.3, if the
underwriters advise the Company in writing that marketing factors require a
limitation of the number of securities to be underwritten, then the Company
shall so advise Intuit, and the number of Registrable Securities that may be
included in the underwriting shall be reduced as required by the underwriters;
PROVIDED, HOWEVER, that the number of shares of Registrable Securities to be
included in such underwriting and registration shall not be reduced unless all
other securities of the Company and any other selling securityholder are first
entirely excluded from the underwriting and registration. Any Registrable
Securities excluded and withdrawn from such underwriting shall be withdrawn from
the registration.
(c) MAXIMUM NUMBER OF DEMAND REGISTRATIONS. The Company is
obligated to effect only one (1) such registration pursuant to this Section 1.2
per calendar year, commencing with 1997.
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(d) EXPENSES. Intuit shall bear all discounts, commissions or
other amounts payable to underwriters or brokers in connection with such
offering, as well as one-half of all other expenses incurred in connection with
a registration pursuant to this Section 1.2, including without limitation all
federal and "blue sky" registration and qualification fees, printers' and
accounting fees, fees and disbursements of counsel for the Company and for
Intuit.
(e) RIGHTS OF THE COMPANY. Notwithstanding anything to the
contrary in this Section 1.2 or otherwise in this Agreement, the Company shall
not be obligated to take any action to effect any such registration pursuant to
this Section 1.2 as follows:
(i) 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;
(ii) If the Company, within ten (10) days of the receipt of
a registration Request of Intuit under Section 1.2, gives written notice to
Intuit of the Company's bona fide intention to effect the filing, within thirty
(30) 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, (x) Intuit shall be
entitled to exercise its piggyback registration rights under Section 1.3 hereof
with respect to such registration, (y) 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 Intuit if the Company
abandons its effort to file or causes its registration statement to become
effective, and (z) in the event the Company gives notice that it has abandoned
its registration statement efforts, the Company shall promptly renew its best
efforts to register the Registrable Securities that were the subject of the
demand registration Request if so requested in writing by Intuit within ten (10)
days after Intuit's receipt of notice that the Company has abandoned its
registration efforts;
(iii) During the period starting with the filing of and
ending on the date ninety (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;
(iv) If the Company shall furnish to Intuit 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
shareholders 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
1.2 shall be deferred for
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a period not to exceed one hundred and twenty (120) days from the date of
receipt of the written Request from Intuit; or
(v) Unless at least one hundred and eighty (180) days shall
have expired from the effectiveness of a previous registration of Registrable
Securities pursuant to this Section 1.2 or Section 1.3 below.
Subject to the foregoing clauses (i) through (vi), 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
Intuit.
1.3 PIGGYBACK REGISTRATIONS. The Company shall notify Intuit in
writing at least twenty (20) days prior to filing any registration statement
under the Securities Act for purposes of effecting a public offering of
securities of the Company (including, but not limited to, registration
statements relating to secondary offerings of securities of the Company, but
EXCLUDING registration statements relating solely to any registration under
Section 1.2 of this Agreement or any employee benefit plan or a Rule 145
transaction) and will afford Intuit, subject to the terms and conditions set
forth herein, an opportunity to include in such registration statement all or
any part of the Registrable Securities then held by Intuit. Intuit shall, within
five (5) business days after receipt of the above-described notice from the
Company, so notify the Company in writing, and in such notice shall inform the
Company of the number of Registrable Securities Intuit wishes to include in such
registration statement. If Intuit decides not to include all of its Registrable
Securities in any registration statement thereafter filed by the Company, Intuit
shall nevertheless continue to have the right to include any Registrable
Securities not included in such registration statement in any subsequent
registration statement or registration statements as may be filed by the Company
with respect to offerings of its securities, all upon the terms and conditions
set forth herein. If Intuit is given the opportunity to include any of its
Registrable Securities in any registration statement filed under this Section
1.3, Intuit shall not make a request for registration under Section 1.2 hereof
for at least one hundred and eighty (180) days after the earlier of the
termination of such offering or the effectiveness of such registration statement
(a) UNDERWRITING. If a registration statement under which the
Company gives notice under this Section 1.3 is for an underwritten offering,
then the Company shall so advise Intuit. In such event, Intuit's right to
include Registrable Securities in a registration pursuant to this Section 1.3
shall be conditioned upon Intuit's participation in such underwriting and the
inclusion of Intuit's Registrable Securities in the underwriting to the extent
provided herein. Intuit shall enter into an underwriting agreement in customary
form with the managing underwriter or underwriters selected for such
underwriting. Notwithstanding any other provision of this Agreement, if the
managing underwriter determines in good faith that marketing factors require a
limitation of the number of shares to be underwritten, then the managing
underwriters may exclude shares (including Registrable Securities) from the
registration and the underwriting, and the number of shares that may be included
in the registration and the underwriting shall be allocated, first, to the
Company, and SECOND, to Intuit; PROVIDED, HOWEVER, that the right of the
underwriters to exclude shares (including
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Registrable Securities) from the registration and underwriting as described
above shall be restricted so that: (i) the number of Registrable Securities
included in any such registration is not reduced below twenty percent (20%) of
the shares included in the registration; and (ii) all shares that are not
Registrable Securities and are held by other shareholders of the Company,
(except those shareholders with registration rights that, as of the Effective
Date of the Plan, are senior to or on a pari passu basis with those of Intuit
and are disclosed to Intuit in the Plan or any disclosure letter delivered to
Intuit pursuant to the Plan), shall first be excluded from such registration and
underwriting before any Registrable Securities are so excluded. If Intuit
disapproves of the terms of any such underwriting, Intuit may elect to withdraw
therefrom by written notice to the Company and the managing underwriter,
delivered at least ten (10) business days prior to the effective date of the
registration statement. Any Registrable Securities excluded or withdrawn from
such underwriting shall be excluded and withdrawn from the registration.
(b) EXPENSES. Intuit shall bear all discounts, commissions or
other amounts payable to underwriters or brokers and fees and disbursements of
counsel for Intuit in connection with such offering. All other expenses incurred
in connection with a registration pursuant to this Section 1.3, including,
without limitation all federal and "blue sky" registration and qualification
fees, printers' and accounting fees, fees and disbursements of counsel for the
Company shall be borne by the Company.
1.4 OBLIGATIONS OF THE COMPANY. Whenever required to effect the
registration of any Registrable Securities under this Agreement, and except as
otherwise provided in this Section or otherwise in this Agreement, the Company
shall, as expeditiously as reasonably possible:
(a) Prepare promptly and file with the SEC a registration
statement with respect to such Registrable Securities and use its best efforts
to cause such registration statement to become effective, and, keep such
registration statement effective for ninety (90) days (or until the earlier sale
of the Registrable Securities covered thereby), which registration statement
(including any amendments or supplements thereto and prospectuses contained
therein) shall not contain any untrue statement of a material fact or omit to
state 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.
(b) Prepare promptly and file with the SEC such amendments and
supplements to such registration statement and the prospectus used in connection
with such registration statement as may be necessary to comply with the
provisions of the Securities Act with respect to the disposition of all
securities covered by such registration statement.
(c) Furnish to Intuit such number of copies of a prospectus,
including a preliminary prospectus, in conformity with the requirements of the
Securities Act, and such other documents as it may reasonably request in order
to facilitate the disposition of the Registrable Securities owned by it that are
included in such registration.
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(d) Use its best efforts to register and qualify the securities
covered by such registration statement under such other securities or Blue Sky
laws of such jurisdictions as shall be reasonably requested by Intuit, provided,
that the Company shall not be required in connection therewith or as a condition
thereto to qualify to do business or to file a general consent to service of
process in any such states or jurisdictions.
(e) In the event of any underwritten public offering, enter into
and perform its obligations under an underwriting agreement, in usual and
customary form, with the managing underwriters of such offering.
(f) Notify Intuit at any time when a prospectus relating to the
Registrable Securities is required to be delivered under the Securities Act of
the happening of any event as a result of which the prospectus included in such
registration statement, as then in effect, includes an untrue statement of a
material fact or omits to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in the light of the
circumstances then existing.
(g) Furnish, at the request of Intuit, on the date that such
Registrable Securities are delivered to the underwriters for sale, if such
securities are being sold through underwriters, or, if such securities are not
being sold through underwriters, on the date that the registration statement
with respect to such securities becomes effective, (i) an opinion, dated as of
such date, of the counsel representing the Company for the purposes of such
registration, in form and substance as is customarily given to underwriters in
an underwritten public offering and reasonably satisfactory to Intuit, addressed
to the underwriters, if any, and to Intuit, and (ii) a "comfort" letter dated as
of such date, from the independent certified public accountants of the Company,
in form and substance as is customarily given by independent certified public
accountants to underwriters in an underwritten public offering and reasonably
satisfactory to a Intuit, addressed to the underwriters, if any, and to Intuit.
(h) Make generally available to its security holders as soon as
practical, but not later than ninety (90) days after the close of the period
covered thereby, an earnings statement (in form complying with the provisions of
Rule 158 promulgated under the Securities Act) covering a twelve-month period
beginning not later than the first day of the Company's fiscal quarter next
following the effective date of any registration statement and any post
effective amendment thereto.
(i) Make available for inspection by Intuit, any underwriter
participating in any underwritten offering of Registrable Securities, and any
attorney, accountant or other agent retained by Intuit or any such underwriter
(collectively, the "INSPECTORS"), all pertinent documents of the Company
(collectively, the "RECORDS"), as shall be reasonably necessary to enable each
Inspector to exercise its due diligence responsibility, if and to the extent it
has any such responsibility under the Securities Act, and cause the Company's
officers, directors and employees to supply all information which any Inspector
may reasonably request for purposes of exercising such due diligence; PROVIDED,
HOWEVER, that each Inspector shall hold in confidence and shall not
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make any disclosure (except to Intuit) of any Record or other non-public
information relating to the Company received by such Inspector unless (i) the
disclosure of such Records is necessary to avoid or correct a misstatement or
omission in any Registration Statement, (ii) the release of such Records is
ordered pursuant to a subpoena or other order from a court or government body of
competent jurisdiction or (iii) the information in such Records has been made
generally available to the public other than by disclosure in violation of this
or any other agreement; and PROVIDED, FURTHER, HOWEVER, that in the event Intuit
obtains material nonpublic information concerning the Company pursuant to this
Section 1.4(i) or Section 1.4(a) or (f) or otherwise, such Inspector shall not
purchase or sell or otherwise trade in any securities of the Company in
violation of applicable law until such information is made public by the
Company. The Company shall not be required to disclose any confidential
information in such Records to any Inspector until and unless such Inspector
shall have entered into a confidentiality agreement (in form and substance
reasonably satisfactory to the Company) with the Company with respect thereto,
substantially in the form of this Section 1.4(i). Intuit agrees that it shall,
upon learning that disclosure of such Records is sought in or by a court or
governmental body of competent jurisdiction, give prompt notice to the Company
and allow the Company, at its expense, to undertake appropriate action to
prevent disclosure of, or to obtain a protective order for, the Records deemed
confidential.
(j) Use its best efforts either to (i) cause all the Registrable
Securities covered by any registration statement to be listed on a national
securities exchange, if the listing of such Registrable Securities is then
permitted under the rules of such exchange, or (ii) secure the quotation of the
Registrable Securities on the Nasdaq NM if such quotation is then permitted
under the rules of the Nasdaq NM.
(k) Provide a transfer agent and registrar, which may be a single
entity, for the Registrable Securities not later than the effective date of any
registration statement.
(l) Cooperate with Intuit and the managing underwriter or
underwriters of any offering involving Registrable Securities, if any, to
facilitate the timely preparation and delivery of certificates (not bearing any
restrictive legends) representing Registrable Securities to be sold pursuant to
a registration effected hereto, and enable such certificates to be in such
denominations or amounts as the case may be, and registered in such names as the
managing underwriter or underwriters, if any, or Intuit, may reasonable request.
(m) Take all other reasonable actions necessary to expedite and
facilitate disposition by Intuit of the Registrable Securities pursuant to the
registration statement.
1.5 FURNISH INFORMATION. It shall be a condition precedent to the
obligations of the Company to take any action pursuant to Sections 1.2 or 1.3
that Intuit shall furnish to the Company such information regarding it, the
Registrable Securities held by it, and the intended method of disposition of
such securities as shall be required to timely effect the registration of its
Registrable Securities.
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1.6 INDEMNIFICATION. In the event any Registrable Securities are
included in a registration statement under Sections 1.2 or 1.3:
(a) BY THE COMPANY. To the extent permitted by law, the Company
will indemnify and hold harmless Intuit, officers and directors of Intuit, any
underwriter (as defined in the Securities Act) for Intuit and each person, if
any, who controls Intuit or such underwriter within the meaning of the
Securities Act or the Securities Exchange Act of 1934, as amended (the "1934
ACT"), against any losses, claims, damages, or liabilities (joint or several) to
which they may become subject under the Securities Act, the 1934 Act or other
federal or state law, insofar as such losses, claims, damages, or liabilities
(or actions in respect thereof) arise out of or are based upon any of the
following statements, omissions or violations (collectively a "VIOLATION"):
(i) any untrue statement or alleged untrue statement of a
material fact contained in a registration statement filed pursuant to this
Section 1, including any preliminary prospectus or final prospectus contained
therein or in any amendments or supplements thereto;
(ii) the omission or alleged omission to state in a
registration statement filed pursuant to this Section 1 (including any
preliminary prospectus or final prospectus contained therein or in any
amendments or supplements thereto), a material fact required to be stated
therein, or necessary to make the statements therein not misleading; or
(iii) any violation or alleged violation by the Company of
the Securities Act, the 1934 Act, any federal or state securities law or any
rule or regulation promulgated under the Securities Act, the 1934 Act or any
federal or state securities law in connection with the offering covered by such
registration statement;
and the Company will reimburse each of Intuit, such officer or director,
underwriter or controlling person for any legal or other expenses reasonably
incurred by them, as incurred, in connection with investigating or defending any
such loss, claim, damage, liability or action; PROVIDED, HOWEVER, that the
indemnity agreement contained in this subsection 1.6(a) shall not apply to
amounts paid in settlement of any such loss, claim, damage, liability or action
if such settlement is effected without the consent of the Company (which consent
shall not be unreasonably withheld), nor shall the Company be liable in any such
case for any such loss, claim, damage, liability or action to the extent that it
arises out of or is based upon a Violation which occurs in reliance upon and in
conformity with written information furnished expressly for use in connection
with such registration by Intuit, or by such, officer, director, underwriter or
controlling person of Intuit.
(b) BY INTUIT. To the extent permitted by law, Intuit will
indemnify and hold harmless the Company, each of its directors, each of its
officers who have signed the registration statement, each person, if any, who
controls the Company within the meaning of the Securities Act, and any
underwriter, against any losses, claims, damages or liabilities (joint or
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several) to which the Company or any such director, officer, controlling person
or underwriter may become subject under the Securities Act, the 1934 Act or
other federal or state law, insofar as such losses, claims, damages or
liabilities (or actions in respect thereto) arise out of or are based upon any
Violation, in each case to the extent (and only to the extent) that such
Violation occurs in reliance upon and in conformity with written information
furnished by Intuit expressly for use in connection with such registration; and
Intuit will reimburse any legal or other expenses reasonably incurred by the
Company or any such director, officer, controlling person, underwriter in
connection with investigating or defending any such loss, claim, damage,
liability or action; PROVIDED, HOWEVER, that the indemnity agreement contained
in this subsection 1.6(b) shall not apply to amounts paid in settlement of any
such loss, claim, damage, liability or action if such settlement is effected
without the consent of Intuit, which consent shall not be unreasonably withheld;
and PROVIDED, FURTHER, that the total amounts payable in indemnity by Intuit
under this Section 1.6(b) in respect of any Violation shall not exceed the net
proceeds received by Intuit in the registered offering out of which such
Violation arises.
(c) NOTICE. Promptly after receipt by an indemnified party under
this Section 1.6 of notice of the commencement of any action (including any
governmental action), such indemnified party will, if a claim for
indemnification in respect thereof is to be made against any indemnifying party
under this Section 1.6, deliver to the indemnifying party a written notice of
the commencement of such an action and the indemnifying party shall have the
right to participate in, and, to the extent the indemnifying party so desires,
jointly with any other indemnifying party similarly noticed, to assume the
defense thereof with counsel mutually satisfactory to the parties; provided,
however, that an indemnified party shall have the right to retain its own
counsel, with the fees and expenses to be paid by the indemnifying party, if
representation of such indemnified party by the counsel retained by the
indemnifying party would be inappropriate due to actual or potential conflict of
interests between such indemnified party and any other party represented by such
counsel in such proceeding. The failure to deliver written notice to the
indemnifying party within a reasonable time of the commencement of any such
action, if prejudicial to its ability to defend such action, shall relieve such
indemnifying party of any liability to the indemnified party under this Section
1.6, but the omission so to deliver written notice to the indemnifying party
will not relieve it of any liability that it may have to any indemnified party
otherwise than under this Section 1.6.
(d) DEFECT ELIMINATED IN FINAL PROSPECTUS. The foregoing
indemnity agreements of the Company and Intuit are subject to the condition
that, insofar as they relate to any Violation made in a preliminary prospectus
but eliminated or remedied in the amended prospectus on file with the SEC at the
time the registration statement in question becomes effective or in the amended
prospectus filed with the SEC pursuant to SEC Rule 424(b) (the "FINAL
PROSPECTUS"), such indemnity agreements shall not inure to the benefit of any
person if a copy of the Final Prospectus was furnished to the indemnified party
and was not furnished to the person asserting the loss, liability, claim or
damage at or prior to the time such action is required by the Securities Act.
(e) Contribution. In order to provide for just and equitable
contribution to joint liability under the Securities Act in any case in which
either (i) Intuit (and/or any officer,
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director, underwriter or controlling person who may be indemnified under Section
1.6(a)), makes a claim for indemnification pursuant to this Section 1.6 but it
is judicially determined (by the entry of a final judgment or decree by a court
of competent jurisdiction and the expiration of time to appeal or the denial of
the last right of appeal) that such indemnification may not be enforced in such
case notwithstanding the fact that this Section 1.6 provides for indemnification
in such case, or (ii) contribution under the Securities Act may be required on
the part of Intuit (and/or any officer, director, underwriter or controlling
person who may be indemnified under Section 1.6(a)) in circumstances for which
indemnification is provided under this Section 1.6; then, and in each such case,
the Company and Intuit (and/or such other person) or will contribute to the
aggregate losses, claims, damages or liabilities to which they may be subject
(after contribution from others) in proportion to their relative fault as
determined by a court of competent jurisdiction; PROVIDED, HOWEVER, that in no
event (i) shall Intuit be responsible for more than the portion represented by
the percentage that the public offering price of the Registrable Securities
offered and sold by Intuit under the registration statement bears to the public
offering price of all securities offered and sold under such registration
statement and (ii) shall Intuit be required to contribute any amount in excess
of the public offering price of all such Registrable Securities offered and sold
by Intuit pursuant to such registration statement; and in any event, no person
or entity guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) will be entitled to contribution from any person or
entity who was not guilty of such fraudulent misrepresentation.
(f) SURVIVAL. The obligations of the Company and Intuit under
this Section 1.6 shall survive the completion of any offering of Registrable
Securities in a registration statement, and otherwise.
1.7 RULE 144 REPORTING. With a view to making available the benefits
of certain rules and regulations of the Commission which may at any time permit
the sale of the Registrable Securities to the public without registration, for
so long as Intuit owns any Registrable Securities, the Company agrees to:
(a) Make and keep public information available, as those terms
are understood and defined in Rule 144 under the Securities Act, at all times;
(b) File with the Commission in a timely manner all reports and
other documents required of the Company under the 1934 Act; and
(c) So long as Intuit owns any Registrable Securities, to furnish
to Intuit forthwith upon request a written statement by the Company as to its
compliance with the reporting requirements of said Rule 144, a copy of the most
recent annual or quarterly report of the Company, and such other reports and
documents of the Company as Intuit may reasonably request in availing itself of
any rule or regulation of the Commission allowing a Holder to sell any such
securities without registration.
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1.8 TERMINATION OF THE COMPANY'S OBLIGATIONS. The Company shall have
no obligations to register Registrable Securities held by Intuit (i) if all
Registrable Securities have been registered and sold pursuant to registrations
effected pursuant to this Agreement, or (ii) after the fifth anniversary of the
"Effective Time" of Merger, as that term is defined in the Plan; provided,
however, that if the Company defers a demand registration pursuant to Section
1.2(e)(iv), then the expiration date under this clause (ii) shall be extended
for one year for each occasion on which the Company has exercised such rights.
1.9 PREFERENCE TO OUTSTANDING REGISTRATION RIGHTS. The Company has
previously entered into agreements dated as of May 6, 1996 granting to certain
holders of Common Stock of the Company issued in connection with the acquisition
of Security APL, Inc. registration rights with respect to such securities that
provides, that until May 9, 1998, 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 such holders under the May 6, 1996 agreements shall
have preference to the holders of such new registration rights. Accordingly,
Intuit acknowledges that its registration rights under this Agreement are
subordinate to the registration rights granted under the May 6, 1996 agreements.
1.10 LIMITATIONS ON SUBSEQUENT REGISTRATION RIGHTS. From and after the
date of this Agreement, the Company shall not, without the prior written consent
of Intuit, enter into any agreement with any holder or prospective holder of any
securities of the Company which would allow such holder or prospective holder
(a) to include such securities in any registration filed under Section 1.2, 1.3
or 1.5 hereof, unless under the terms of such agreement, such holder or
prospective holder may include such securities in any such registration only to
the extent that the inclusion of his securities will not reduce the amount of
the Registrable Securities of Intuit which is included, or (b) to make a demand
registration which could result in such registration statement being declared
effective (i) during the effectiveness of any registration statement effected
pursuant to Section 1.2, or (ii) within one hundred twenty (120) days of the
effective date of any registration effected pursuant to Section 1.2.
2. ASSIGNMENT.
2.1 ASSIGNMENT. Notwithstanding anything herein to the contrary, the
registration rights of Intuit under Section 1 hereof may be assigned only to (a)
a party who acquires a number of shares of Company Common Stock equal to at
least fifty percent (50%) of the shares of Common Stock that constituted the
original number of Registrable Securities (as such number may be adjusted to
reflect subdivisions, combinations and stock dividends of the Company's Common
Stock) or (b) any party who acquires ownership or control of Intuit through a
merger, consolidation, sale of assets or similar business combination; PROVIDED,
HOWEVER that no party may be assigned any of the foregoing rights until the
Company is given written notice by the assigning party at the time of such
assignment stating the name and address of the assignee and identifying the
securities of the Company as to which the rights in question are being assigned;
and PROVIDED FURTHER that any such
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assignee shall receive such assigned rights subject to all the terms and
conditions of this Agreement, including without limitation the provisions of
this Section 2.
3. GENERAL PROVISIONS.
3.1 STANDOFF AGREEMENT. Intuit agrees, so long as it holds at least
five percent (5%) 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, Intuit 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 ninety (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 Intuit shall not be required to do so either.
3.2 NOTICES. Any notice, request or other communication required or
permitted hereunder shall be in writing and shall be deemed to have been duly
given if personally delivered or if deposited in the U.S. mail by registered or
certified mail, return receipt requested, postage prepaid, as follows:
(a) If to Intuit, at:
Intuit Inc.
0000 Xxxxxx Xxxxxx
Xxxxxxxx Xxxx, XX 00000
Attention: Chief Executive Officer
with a copy to:
Fenwick & West LLP
Two Palo Alto Square, Suite 800
Palo Alto, CA 9306
Attention: Xxxxxxx X. Xxxxxxxx, Esq.
(b) If to Checkfree:
Checkfree Corporation
0000 Xxxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxx 00000
Attention: President
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with a copy to:
CHECKFREE CORPORATION
0000 Xxxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxx 00000
Attn: General Counsel
and
Porter, Wright, Xxxxxx & Xxxxxx
00 Xxxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxx 00000
Attention: Xxxxxx X. Xxxxxxxx, Esq.
Any party hereto (and such party's permitted assigns) may by notice so given
provide and change its address for future notices hereunder. Notice shall
conclusively be deemed to have been given when personally delivered or when
deposited in the mail in the manner set forth above.
3.3 ENTIRE AGREEMENT. This Agreement, constitutes and contains
the entire agreement and understanding of the parties with respect to the
subject matter hereof and supersedes any and all prior negotiations,
correspondence, agreements, understandings, duties or obligations between the
parties respecting the subject matter hereof.
3.4 AMENDMENT OF RIGHTS. Any provision of this Agreement may
be amended and the observance thereof may be waived (either generally or in a
particular instance and either retroactively or prospectively), only with the
written consent of the Company and Intuit (and/or any of their permitted
successors or assigns).
3.5 GOVERNING LAW. This Agreement shall be governed by and
construed exclusively in accordance with the internal laws of the State of
Delaware as applied to agreements among Delaware residents entered into and to
be performed entirely within Delaware, excluding that body of law relating to
conflict of laws and choice of law.
3.6 SEVERABILITY. If one or more provisions of this Agreement
are held to be unenforceable under applicable law, then such provision(s) shall
be excluded from this Agreement and the balance of this Agreement shall be
interpreted as if such provision(s) were so excluded and shall be enforceable in
accordance with its terms.
3.7 THIRD PARTIES. Nothing in this Agreement, express or
implied, is intended to confer upon any person, other than the parties hereto
and their successors and assigns, any rights or remedies under or by reason of
this Agreement.
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3.8 SUCCESSORS AND ASSIGNS. Subject to the provisions of
Section 2.1, the provisions of this Agreement shall inure to the benefit of, and
shall be binding upon, the successors and permitted assigns of the parties
hereto.
3.9 CAPTIONS. The captions to sections of this Agreement have
been inserted for identification and reference purposes only and shall not be
used to construe or interpret this Agreement.
3.10 COUNTERPARTS. This Agreement may be executed in
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date and year first above written.
CHECKFREE CORPORATION INTUIT INC.
By:__________________________ By:____________________________
Title: _______________________ Title: ________________________
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