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Exhibit 10(b)
AMENDED AND RESTATED
CHECKFREE CORPORATION
STOCK RESTRICTION AGREEMENT
This Amended and Restated Stock Restriction Agreement (this
"AGREEMENT") is made as of September 15, 1996 by and between Checkfree
Corporation, a Delaware corporation ("Parent") and Intuit Inc., a Delaware
corporation ("Holdings").
RECITALS
A. Parent and Holdings, together with Checkfree Acquisition Corporation
II, a wholly owned subsidiary of Parent, and Intuit Services Corporation, a
wholly owned subsidiary of Holdings, have entered into a certain Agreement and
Plan of Merger dated as of September 15, 1996, as amended (the "PLAN"), pursuant
to which, by merger (the "MERGER"), Parent will acquire the business of Intuit
Services Corporation.
B. In connection with the Merger, Parent will issue to Holdings that
number of shares of the common stock of Parent ("PARENT COMMON STOCK") specified
in the Plan, subject to adjustment as provided therein ("MERGER SECURITIES"),
and the parties hereto have entered into a certain Stock Restriction Agreement
dated as of September 15, 1996 (the "PREVIOUS AGREEMENT") to express their
agreement with respect to certain limitations on the actions which may be taken
by Holdings with respect to the Parent Common Stock issued to Holdings in the
Merger. The parties have also entered into a certain Amended and Restated
Registration Rights Agreement dated as of September 15, 1996, pursuant to which
Parent has agreed to register the Merger Securities under the Securities Act of
1933 (the "Registration Rights Agreement").
C. Parent and Holdings now desire to amend and restate the Previous
Agreement in the form of this Agreement, which shall supersede and replace the
Previous Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual agreements and covenants
hereinafter and therein contained and for other good and valuable consideration
(the receipt and sufficiency of which is hereby acknowledged), the parties
hereto agree as follows:
1. RESTRICTIONS. While this Agreement remains in effect, Holdings shall
not sell, assign, or otherwise transfer or purchase any shares of Parent Common
Stock except as specifically permitted hereunder and shall be subject to the
following restrictions with respect to the taking of certain other actions with
respect to Parent Common Stock.
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1.1. SALES.
(i) SALES TO QUALIFIED INSTITUTIONAL BUYERS. Holdings may sell
shares of Parent Common Stock to any Qualified Institutional Buyer, as defined
herein, where such Qualified Institutional Buyer would own, after such purchase
by it, not more than 10% of the then outstanding shares of Parent Common Stock.
"Qualified Institutional Buyer," as that term is used herein, means any person
who would be eligible, under Rule 13d-1(b)(1) under the Securities and Exchange
Act of 1934, as amended ("Exchange Act"), if such person owned 5% or more of the
then outstanding shares of Parent Common Stock, to file reports of beneficial
ownership on Schedule 13G as prescribed by the Securities and Exchange
Commission ("SEC"), because such person both:
(A) is acquiring shares of Parent Common Stock
in the ordinary course of his business and
not with the purpose nor with the effect of
changing or influencing the control of the
issuer, nor in connection with or as a
participant in any transaction having such
purpose or effect, including any transaction
subject to Rule 13d-3(b); and
(B) is (i) a broker or dealer registered under
Section 15 of the Exchange Act, (ii) a bank as
defined in Section 3(a)(6) of the Exchange Act,
(iii) an insurance company as defined in Section
3(a)(19) of the Exchange Act, (iv) an investment
company registered under Section 8 of the
Investment Company Act of 1940, (v) an investment
advisor registered under Section 203 of the
Investment Advisers Act of 1940, (vi) an employee
benefit plan, or pension fund which is subject to
the provisions of the Employee Retirement Income
Security Act of 1974 ("ERISA") or an endowment
fund, (vii) a parent holding company, provided
that the aggregate amount held directly
by the parent, and directly and indirectly by its
subsidiaries which are not persons specified in
Rule 13d-1(b)(ii)(A)-(F) promulgated under the
Exchange Act, does not exceed one percent of the
securities of the subject class, or (viii) a
group, provided that all the members are persons
specified in Rule 13d-1(b)(ii)(A)-(G) promulgated
under the Exchange Act.
(ii) SALES TO OTHER BUYERS. Holdings may sell shares of Parent
Common Stock to any person who is not a Qualified Institutional Buyer ("OTHER
BUYER") which Other Buyer would own, after such purchase by it, not more than 5%
of the then outstanding shares of Parent Common Stock. Holdings shall notify
Parent in writing of its intention to sell Parent Common Stock in advance of any
sale to an Other Buyer, and Parent shall have the right, during the five
business days following the receipt of such notice, to purchase such shares for
the price at which Holdings has agreed to sell the shares to such Other Buyer.
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(iii) SALES PURSUANT TO RULE 144 AND PUBLIC OFFERINGS.
Holdings may sell shares of Parent Common Stock (a) in compliance with SEC Rule
144 under the Securities Act of 1933, as amended (the "SECURITIES ACT"), (b)
pursuant to underwritten public offerings of Parent Common Stock in which the
parties have mutually approved the managing underwriters and (c) pursuant to
offerings of Parent Common Stock that are not underwritten but are registered
under the Securities Act pursuant to a shelf registration under Rule 415 under
the Securities Act that has been effected pursuant to the Registration Rights
Agreement. Any sales of Parent Common Stock by Holdings to Qualified
Institutional Buyers or to Other Buyers, if made pursuant to this Section
1.1(iii) (a) through an underwriter, broker, market maker or similar
intermediary without Holdings' direct selection of or direct negotiation with
the ultimate purchaser of such Parent Common Stock, or (b) in any "manner of
sale" provisions of Rule 144(f) under the Securities Act, or (c) in any manner
that would be permitted by Rule 145(d) under the Securities Act if such Rule 145
applied to the issuance and resale of the Parent Common Stock, shall be exempt
from the restrictions set forth in Section 1.1(i) and Section 1.1(ii).
(iv) OTHER SALES. In addition to sales permitted under the
foregoing subparagraphs (i), (ii) and (iii) of this Section 1.1, Holdings may
also sell shares of Parent Common Stock in other ways, provided that Parent
agrees to such sales in advance in writing.
1.2. PURCHASES. So long as this Agreement is in effect, Holdings may
purchase shares of Parent Common Stock only where such purchase would result in
its beneficial ownership of not more than 15% of the then outstanding shares of
Parent Common Stock, except where Holdings has received the prior written
consent of Parent's Board of Directors or its authorized representative;
provided, however, that Holdings may not hold more than the number of shares of
Parent Common Stock constituting the Merger Securities so long as this Agreement
remains in effect.
1.3. SOLICITATION OF PROXY AND OTHER MATTERS.
(i) SOLICITATION OF PROXIES. Holdings will not solicit
proxies from Parent stockholders in opposition to any recommendation of
Parent's Board of Directors.
(ii) TAKEOVER BIDS. Holdings will not initiate or participate
in any group which proposes, without the support of Parent's Board of Directors,
any change in the control of Parent, whether by tender offer, merger, or
otherwise. In any event, Holdings may, itself, make such an offer or proposal to
Parent's Board of Directors; provided, however, that any such offer or proposal
by Holdings shall be made on a strictly confidential basis and shall not be
publicly disclosed without the prior consent of Parent's Board of Directors.
2. LEGEND. The certificates representing shares of Parent Common
Stock beneficially owned by Holdings shall bear the following legend:
THE SHARES OF COMMON STOCK REPRESENTED BY THIS
CERTIFICATE ARE SUBJECT TO AN AGREEMENT DATED
SEPTEMBER 15, 1996 BETWEEN INTUIT INC. AND CHECKFREE
CORPORATION IMPOSING CERTAIN TRANSFER AND OTHER
RESTRICTIONS ON THE HOLDER OF SUCH SHARES.
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Holdings shall deliver all shares of Parent Common Stock purchased hereunder to
Parent or its transfer agent to have this legend affixed to all such shares.
3. TERMINATION. This Agreement and the restrictions imposed hereby will
irrevocably terminate at the first time that Holdings shall beneficially own
less than 10% of the outstanding shares of Parent Common Stock, and this
Agreement shall not be revived by any subsequent transaction that results in
Holdings owning 10% or more of the outstanding shares of Parent Common Stock.
4. GOVERNING LAW. This Agreement shall be governed by and interpreted
in accordance with the law of the State of Delaware, without reference to its
choice of law rules.
5. ASSIGNMENT. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective estates, heirs, legal
representatives, successors, and assigns; provided, however, that no assignment
of any rights or obligations shall be made by any party hereto without the
written consent of each other party hereto.
6. NOTICES. All notices and other communications hereunder shall be in
writing and shall be deemed to be given if sent by United States mail, postage
prepaid and registered or certified with required return receipt, or otherwise
personally delivered and receipted therefor, and addressed as follows (or at
such other address as may be specified by notice given pursuant hereto):
(a) If to Checkfree:
CHECKFREE CORPORATION
0000 Xxxx Xxxxx Xxxxxx Xxxx
Xxxxxxxx, Xxxxxxx 00000
Attn: Chief Executive Officer
with copy to:
PORTER, WRIGHT, XXXXXX & XXXXXX
00 X. Xxxx Xxxxxx
Xxxxxxxx, Xxxx 00000
Attn.: Xxxxxx X. Xxxxxxxx, Esq.
(b) If to Intuit:
INTUIT INC.
0000 Xxxxxx Xxxxxx
Xxxxxxxx Xxxx, XX 00000
Attn: Chief Executive Officer
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with copy to:
FENWICK & WEST LLP
Xxx Xxxx Xxxx Xxxxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxxxx, Esq.
7. CAPTIONS. The captions at the beginning of the several sections
of this Agreement are not a part of the context hereof, but have been inserted
to assist in locating and reading those sections. They shall be ignored in
construing this Agreement.
8. SEVERABILITY. In case any one or more of the provisions contained in
this Agreement is held to be invalid, illegal, or unenforceable in any respect
for any reason, such invalidity, illegality, or unenforceability shall not
affect any other provisions hereof. It is the intention of the parties that if
any provision is held to be invalid, illegal, or unenforceable, there shall be
added in lieu thereof a valid and enforceable provision as similar in terms to
such provision as is possible.
9. DUPLICATE ORIGINALS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be a duplicate original, and all
counterparts taken together shall constitute duplicate originals of one and the
same agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
CHECKFREE CORPORATION
By:_____________________________________
Its:____________________________________
INTUIT INC.
By:_____________________________________
Its:____________________________________
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