<PAGE> 1
As filed with the Securities and Exchange Commission on January 9, 1998
Registration No. 33-98446
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
POST-EFFECTIVE AMENDMENT NO. 1
TO
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
CHECKFREE HOLDINGS CORPORATION
(Exact name of Registrant as specified in its charter)
Delaware 58-2360335
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
4411 East Jones Bridge Road
Norcross, Georgia 30092
(Address of Registrant's principal executive offices)
CHECKFREE HOLDINGS CORPORATION
AMENDED AND RESTATED
1995 STOCK OPTION PLAN
(Full Title of the Plan)
Peter J. Kight
Chairman, President, and Chief Executive Officer
CheckFree Holdings Corporation
4411 East Jones Bridge Road
Norcross, Georgia 30092
(770) 441-3387
(Name, address and telephone number of agent for service)
Copies of Correspondence to:
Robert J. Tannous, Esq.
Porter, Wright, Morris & Arthur
41 South High Street
Columbus, Ohio 43215
<PAGE> 2
POST-EFFECTIVE AMENDMENT NO. 1 TO FORM S-8
This post-effective amendment is being filed pursuant to Rule 414 under
the Securities Act of 1933, as amended (the "Securities Act"), to reflect the
adoption by CheckFree Corporation, a Delaware corporation ("CheckFree"), of a
holding company form of organizational structure. The holding company
organizational structure was effected pursuant to an Agreement and Plan of
Merger (the "Merger Agreement") among CheckFree, CheckFree Holdings Corporation,
a Delaware corporation (the "Registrant"), and CheckFree Merger Corporation, a
Delaware corporation and wholly owned subsidiary of the Registrant ("Merger
Corporation"). The Merger Agreement provides for, among other things, the merger
(the "Merger") of Merger Corporation with and into CheckFree, with CheckFree as
the surviving corporation. Pursuant to Section 251(g) of the General Corporation
Law of the State of Delaware, stockholder approval of the Merger was not
required.
As a result of the Merger, which was consummated at 11:59 p.m. on
December 22, 1997, CheckFree became a direct wholly owned subsidiary of the
Registrant. Each share of common stock, par value $.01 per share, of CheckFree
(with rights attached) issued and outstanding was converted into and exchanged
for one share of common stock, par value $.01 per share, of the Registrant (with
rights attached).
In accordance with Rule 414 under the Securities Act, the Registrant,
as successor issuer to CheckFree, hereby expressly adopts this registration
statement as its own for all purposes of the Securities Act and the Securities
Exchange Act of 1934, as amended. The CheckFree Corporation Amended and Restated
1995 Stock Option Plan to which this registration statement relates (the "Plan")
shall be known as the CheckFree Holdings Corporation Amended and Restated 1995
Stock Option Plan. Subsequent to the holding company reorganization, the Plan
will continue to cover employees of CheckFree. However, shares of stock issued
in accordance with the Plan shall be shares of stock of the Registrant rather
than shares of CheckFree.
The applicable registration fees were paid at the time of the original
filing of this registration statement.
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<PAGE> 3
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this
Post-Effective Amendment No. 1 to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Norcross, State of Georgia, on January
5, 1998.
CHECKFREE HOLDINGS CORPORATION
By: /s/ Peter J. Kight
--------------------------------------------------------
Peter J. Kight, Chairman, President, and Chief Executive
Officer
Pursuant to the requirements of the Securities Act of 1933, this
Post-Effective Amendment No. 1 has been signed by the following persons in the
capacities and on the dates indicated:
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ Peter J. Kight Chairman of the Board of ) January 5, 1998
- ---------------------------------------- Directors, President, and Chief )
Peter J. Kight Executive Officer )
(Principal Executive Officer) )
)
)
*Mark A. Johnson Vice Chairman, Corporate ) January 5, 1998
- ---------------------------------------- Development and Marketing, Director )
Mark A. Johnson )
)
)
*James A. Douglass Executive Vice President, Chief ) January 5, 1998
- ---------------------------------------- Financial Officer and Treasurer )
James S. Douglass (Principal Financial Officer) )
)
)
)
*Gary A. Luoma, Jr. Vice President, Chief Accounting ) January 5, 1998
- ---------------------------------------- Officer and Assistant Secretary )
Gary A. Luoma, Jr. (Principal Accounting Officer) )
)
)
)
*George R. Manser Director ) January 5, 1998
- ---------------------------------------- )
George R. Manser )
)
)
*Eugene F. Quinn Director ) January 5, 1998
- ---------------------------------------- )
Eugene F. Quinn )
)
)
*Jeffrey M. Wilkins Director ) January 5, 1998
- ---------------------------------------- )
Jeffrey M. Wilkins )
</TABLE>
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<TABLE>
<S> <C> <C>
)
)
*William P. Boardman Director ) January 5, 1998
- ---------------------------------------- )
William P. Boardman )
*By: /s/ Peter J. Kight
--------------------------------
Peter J. Kight, attorney-in-fact
for each of the persons indicated
</TABLE>
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<PAGE> 5
Registration No. 33-98446
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
POST-EFFECTIVE AMENDMENT NO. 1
TO
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
CHECKFREE HOLDINGS CORPORATION
EXHIBITS
<PAGE> 6
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit Exhibit
Number Description
- ------ -----------
<S> <C>
4(a) * Checkfree Holdings Corporation Amended and Restated 1995 Stock Option
Plan.
4(b) * Amended and Restated Certificate of Incorporation of Checkfree Holdings
Corporation.
4(c) * By-Laws of Checkfree Holdings Corporation.
5 * Opinion of Porter, Wright, Morris & Arthur regarding legality.
23(a) Consent of Porter, Wright, Morris & Arthur (included in Exhibit 5 filed
herewith).
23(b) * Consent of Deloitte & Touche LLP.
24 * Powers of Attorney.
</TABLE>
* Filed with this Registration Statement
<PAGE> 1
CHECKFREE HOLDINGS CORPORATION
Exhibit 4(a)
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CHECKFREE HOLDINGS CORPORATION
1995 STOCK OPTION PLAN
AS AMENDED AND RESTATED
WHEREAS, CheckFree Corporation, a Delaware corporation, adopted the
CheckFree Corporation 1995 Stock Option Plan (the "1995 Plan") as an incentive
and to encourage certain key associates, officers, directors, consultants and
advisers who render service to CheckFree Corporation; and
WHEREAS, effective December 22, 1997, CheckFree Corporation was
reorganized and pursuant to the reorganization, CheckFree Corporation became the
wholly owned subsidiary of CheckFree Holdings Corporation (the
"Reorganization"); and
WHEREAS, the common stock of CheckFree Corporation was exchanged on an
equal basis for the common stock of CheckFree Holdings Corporation on the
effective date of the Reorganization; and
WHEREAS, CheckFree Holdings Company, pursuant to the Reorganization
adopted the 1995 Plan and desires to restate and amend the 1995 Plan to reflect
the Reorganization.
NOW, THEREFORE, in consideration of the premises, the 1995 Plan is
hereby amended and restated, effective December 22, 1997, in its entirety as
follows:
1. PURPOSE. This plan (the "Plan") is intended as an incentive and to
encourage stock ownership by certain Key Associates, officers, directors,
consultants and advisers who render services to CHECKFREE HOLDINGS CORPORATION,
a Delaware corporation (the "Company"), and any current or future Subsidiary or
Parent thereof (together the "Company Group"), by the granting of stock options
(the "Options") as provided herein. By encouraging such stock ownership, the
Company seeks to attract, retain and motivate employees, officers, directors,
consultants and advisers of training, experience and ability. The Options
granted under the Plan may be either incentive stock options ("ISOs") which meet
the requirements of Section 422 of the Internal Revenue Code of 1986, as amended
(the "Code"), or options which do not meet such requirements ("Non-statutory
Options").
2. EFFECTIVE DATE. The Plan shall become effective on August 8, 1995,
the date the Plan was adopted by the Board of Directors of the Company and
approved by a majority of the shares of common stock of the Company entitled to
vote thereon (the "Effective Date").
3. ADMINISTRATION.
(a) The Plan shall be administered by the Board of Directors
of the Company (the "Board"), which may, to the full extent permitted by law,
delegate all or any of its powers under the Plan to a committee (the
"Committee") which consists of not fewer than two members of the Board. If the
Committee is so appointed and to the extent such powers are delegated, all
references to the Board in the Plan shall mean and relate to the Committee. If
any class of equity securities of the Company is registered under section 12 of
the Securities Exchange Act of 1934, as amended (the "1934 Act"), all members of
the Committee will be "non-employee directors" as defined in Rule 16b-3(b)(2)(i)
promulgated under the 1934 Act (or any successor rule of like tenor and effect)
and "outside directors" as defined in section 162(m) of the Code and the
regulations promulgated thereunder.
(b) Subject to the provisions of the Plan, the Board is
authorized to establish, amend and rescind such rules and regulations as it may
deem appropriate for its conduct and for the proper administration of the Plan,
to make all determinations under and interpretations of, and to take such
actions in connection with, the Plan or the Options granted thereunder as it may
deem necessary or advisable. All actions taken by the Board under the Plan shall
be final and binding on all persons. No member of the Board shall be liable for
any action taken or determination made relating to the Plan, except for gross
negligence or willful misconduct.
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(c) Each member of the Board shall be indemnified by the
Company against costs, expenses and liabilities (other than amounts paid in
settlements to which the Company does not consent, which consent shall not be
unreasonably withheld) reasonably incurred by such member in connection with any
action taken in relation to the Plan to which he or she may be a party by reason
of service as a member of the Board, except in relation to matters as to which
he or she shall be adjudged in such action to be personally guilty of gross
negligence or willful misconduct in the performance of his or her duties. The
foregoing right to indemnification shall be in addition to such other rights as
the Board member may enjoy as a matter of law, by reason of insurance coverage
of any kind, or otherwise.
4. ELIGIBILITY.
(a) ISOs and Non-statutory Options may be granted to such Key
Associates of the Company Group, and Non-statutory Options only may be granted
to directors who are not employees of and to consultants and advisers who render
services to the Company Group, as the Board shall select from time to time (the
"Optionees"). More than one Option may be granted to an individual under the
Plan.
(b) No ISO may be granted to an individual who, at the time an
ISO is granted, is considered under Section 422(b)(6) of the Code to own stock
possessing more than 10 percent of the total combined voting power of all
classes of stock of the Company or of its Parent or any Subsidiary corporation;
provided, however, this restriction shall not apply if at the time such ISO is
granted the option price per Share of such ISO shall be at least 110% of the
Fair Market Value of such Share, and such ISO by its terms is not exercisable
after the expiration of five years from the date it is granted. This
subparagraph 4(b) has no application to Options granted under the Plan as
Non-statutory Options.
(c) The aggregate Fair Market Value (determined as of the date
the ISO is granted) of Shares with respect to which ISOs are exercisable for the
first time by any Optionee during any calendar year under the Plan or any other
ISO plan of the Company or the Company Group may not exceed $100,000. If an ISO
which exceeds the $100,000 limitation of this subparagraph 4(c) is granted, the
portion of such Option which is exercisable for Shares in excess of the $100,000
limitation shall be treated as a Non-statutory Option pursuant to Section 422(d)
of the Code. Except as otherwise expressly provided in the immediately preceding
sentence, this subparagraph 4(c) has no application to Options granted under the
Plan as Non-statutory Options.
5. STOCK SUBJECT TO PLAN. The stock subject to Options under the Plan
shall be shares of the common stock, $.01 par value, of CheckFree Holdings
Corporation ("Shares"). The Shares issued pursuant to Options granted under the
Plan may be authorized and unissued Shares, Shares purchased on the open market
or in a private transaction, or Shares held as treasury stock. The aggregate
number of Shares for which Options may be granted under the Plan shall not
exceed 5,000,000 Shares, subject to adjustment in accordance with the terms of
paragraph 12 hereof. The maximum number of shares for which Options may be
granted under the Plan during any calendar year to any one Key Associate may not
exceed 500,000 shares, subject to adjustment in accordance with the terms of
paragraph 12 hereof. Any Shares subject to an Option which for any reason
expires or is terminated unexercised as to such Shares and any Shares reacquired
by the Company pursuant to any forfeiture hereunder may again be the subject of
an Option under the Plan. The Board, in its sole discretion, may permit the
exercise of any Option as to full Shares or fractional Shares. Proceeds from the
sale of Shares under Options shall constitute general funds of the Company.
6. TERMS AND CONDITIONS OF OPTIONS.
(a) At the time of grant, the Board shall determine whether
the Options granted are to be ISOs or Non-statutory Options and shall enter into
stock option agreements with the recipients accordingly. All Options granted
shall be authorized by the Board and, within a reasonable time after the date of
grant, shall be evidenced by stock option agreements in writing ("Stock Option
Agreements"), in such form and containing such terms and conditions not
inconsistent with the provisions of this Plan as the Board shall from time to
time determine. Any action under paragraph 12 may be reflected in an amendment
to or restatement of such Stock Option Agreements.
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(b) The Board may grant Options having terms and provisions
which vary from those specified in the Plan if such Options are granted in
substitution for, or in connection with the assumption of, existing options
granted by another corporation and assumed or otherwise agreed to be provided
for by the Company pursuant to or by reason of a transaction involving a
corporate merger, consolidation, acquisition of property or stock, separation,
reorganization or liquidation to which the Company is a party.
7. PRICE. The option price per Share (the "Option Price") of each
Option granted under the Plan shall be determined by the Board; provided,
however, the Option Price of each ISO granted under the Plan shall not be less
than the Fair Market Value (determined without regard to any restrictions other
than a restriction which, by its terms, will never lapse) of a Share on the date
of grant of such Option. An Option shall be considered granted on the date the
Board acts to grant the Option or such later date as the Board shall specify.
8. OPTION PERIOD. The period during which the Option may be exercised
(the "Option Period") shall be determined by the Board; provided, however, any
ISO granted under the Plan shall have an Option Period which does not exceed 10
years from the date the ISO is granted.
9. NON-TRANSFERABILITY OF OPTIONS. An Option shall not be transferable
by the Optionee otherwise than by will or the laws of descent and distribution
and may be exercised, during the lifetime of the Optionee, only by him or by his
guardian or legal representative. Notwithstanding the foregoing, an Optionee may
transfer a Non-Statutory Option to members of his or her immediate family (as
defined in Rule 16a-1 promulgated under the 1934 Act), to one or more trusts for
the benefit of such family members or to partnerships in which such family
members are the only partners if (a) the stock option agreement with respect to
such Non-Statutory Option as approved by the Committee expressly so provides and
(b) the Optionee does not receive any consideration for the transfer.
Non-Statutory Options held by such transferees are subject to the same terms and
conditions that applied to such Non-Statutory Options immediately prior to
transfer.
10. EXERCISE OF OPTIONS.
(a) Options granted hereunder will be exercisable upon the
terms and conditions and in accordance with the vesting percentages determined
by the Board in its sole discretion. Notwithstanding the foregoing or the terms
and conditions of any Stock Option Agreement to the contrary, (i) in the event
of the Optionee's termination of employment as specified in subparagraph 11(a),
the Options shall be exercisable to the extent and for the period specified in
subparagraph 11(a); (ii) in the event of the Optionee's termination of
employment by reason death or by the Company by reason of Disability as
specified in subparagraph 11(b), the Options shall be exercisable to the extent
and for the period specified in subparagraph 11(b); (iii) in the event of the
Optionee's termination of employment by reason of Retirement, the Options shall
be exercisable to the extent and for the period specified in subparagraph 11(d);
and (iv) in the event of a Change in Control, the Options shall become
exercisable as specified in subparagraph 12(c).
(b) An Option shall be exercisable only upon delivery of a
written notice to the Company's Chief Financial Officer or any other officer of
the Company designated by the Board to accept such notices on its behalf,
specifying the number of Shares for which it is exercised.
(c) Within five business days following the date of exercise
of an Option, the Optionee or other person exercising the Option shall make full
payment of the Option Price (i) in cash; (ii) with the consent of the Board, by
tendering previously acquired Shares which have been held by the Optionee for at
least six months (valued at their Fair Market Value as of the date of tender);
(iii) with the consent of the Board, and to the extent permitted by applicable
law, with a full recourse promissory note of the Optionee for the portion of the
Option Price in excess of the par value of Shares subject to the Option, under
terms and conditions determined by the Board and in cash for the par value of
the Shares; (iv) with the consent of the Board, any combination of (i), (ii), or
(iii); or (v) with the consent of the Board, if the Shares subject to the Option
have been registered under the Securities Act of 1933, as amended (the "1933
Act"), and there is a regular public market for the Shares, by delivering to the
Company on the date of exercise of the Option written notice of exercise
together with:
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(A) written instructions to forward a copy of such
notice of exercise to a broker or dealer as defined in Section
3(a)(4) and 3(a)(5) of the 1934 Act, and designated in such
notice ("Broker"), and to deliver to the specified account
maintained with the Broker by the person exercising the Option
a certificate for the Shares purchased upon the exercise of
the Option, and
(B) a copy of irrevocable instructions to the Broker
to deliver promptly to the Company a sum equal to the purchase
price of the Shares purchased upon exercise of the Option.
If previously acquired Shares are to be used to pay the exercise price
of an ISO, the Company prior to such payment must be furnished with evidence
satisfactory to it that the acquisition of such Shares and their transfer in
payment of the exercise price satisfy the requirements of Section 422 of the
Code and other applicable laws.
11. TERMINATION OF EMPLOYMENT.
(a) Upon termination of an Optionee's employment with the
Company Group, other than by reason of death or Retirement or termination by the
Company by reason of Disability or For Cause, the Optionee shall have 30 days
after the date of termination of employment (but not later than the expiration
date of the Stock Option Agreement) to exercise all Options held by him to the
extent the same were exercisable on the date of termination. The Board may
cancel an Option during the 30-day period after termination of employment
referred to in this paragraph if the Optionee engages in employment or
activities contrary, in the sole opinion of the Board, to the best interests of
the Company.
(b) Upon termination of an Optionee's employment by death or
by the Company by reason of Disability ("Disability Related Termination"), the
Optionee or the Optionee's personal representative, or the person or persons to
whom his rights under the Options pass by will or the laws of descent or
distribution, shall have one year after the date of death or the date of the
Disability Related Termination (but not later than the expiration date of the
Stock Option Agreement) to exercise all Options held by the Optionee to the
extent the same were exercisable on the date of the Optionee's termination of
employment, except that the time elapsed from the date of death or a Disability
Related Termination to the date of exercise of such Option shall accrue toward
any vesting requirements in the Stock Option Agreement evidencing such Option as
if the Optionee had remained employed by the Company.
(c) Upon termination of an Optionee's employment For Cause,
all Options held by such Optionee shall terminate effective on the date of
termination of employment.
(d) With respect only to options granted after September 15,
1997, upon termination of an Optionee's employment by reason of Retirement, the
Optionee shall have three years after the date of Retirement (but not later than
the expiration of the Stock Option Agreement) to exercise any Option held by
Optionee at the time of Retirement to the extent the same was exercisable on the
date of the Optionee's exercise of the Option, except that the time elapsed from
the date of Retirement to the date of exercise of such Option shall accrue
toward any vesting requirements in the Stock Option Agreement evidencing such
Option as if the Optionee had remained employed by the Company; provided,
however, notwithstanding the foregoing, in the event of the Optionee's death
after Retirement, the Optionee or the Optionee's personal representative, or the
person or persons to whom his rights under the Options pass by will or the laws
of descent or distribution, shall have one year after the date of death (but not
later than the expiration date of the Stock Option Agreement) to exercise all
Options held by the Optionee to the extent the same were exercisable on the date
of the Optionee's death and the elapsed time from the date of death to the
exercise of the Option shall not accrue toward any vesting requirements in the
Stock Option Agreement evidencing such Option; provided further, at the time of
the exercise of an Option by an Optionee following termination of employment by
reason of Retirement, the Optionee shall represent and warrant to the Company
that he has been in material compliance with all terms and conditions of the
Retirement Agreement with the Company (as defined in Section 27(f) hereof); and
provided further, that in the event that the Optionee violates the Retirement
Agreement, all of the Optionee's unexercised Options
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shall immediately terminate and the Optionee shall return to the Company the
economic value of any Option which was realized or obtained (measured at the
date of exercise) by the Optionee after the violation of the Retirement
Agreement.
12. STOCK SPLITS; MERGERS; REORGANIZATIONS; CHANGE IN CONTROL.
(a) In the event of a stock split, stock dividend, combination
or exchange of shares, exchange for other securities, reclassification,
reorganization, redesignation or other change in the Company's capitalization,
the aggregate number of Shares for which Options may be granted under this Plan,
the number of Shares subject to outstanding Options and the Option Price of the
Shares subject to outstanding Options shall be proportionately adjusted or
substituted to reflect the same. The Board shall make such other adjustments to
the Options, the provisions of the Plan and the Stock Option Agreements as may
be appropriate and equitable, which adjustments may provide for the elimination
of fractional Shares.
(b) In the event of a change of the Common Stock resulting
from a merger or similar reorganization as to which the Company is the surviving
corporation, the number and kind of Shares which thereafter may be purchased
pursuant to an Option under the Plan and the number and kind of Shares then
subject to Options granted hereunder and the price per Share thereof shall be
appropriately adjusted in such manner as the Board may deem equitable to prevent
dilution or enlargement of the rights available or granted hereunder.
(c) In the event of a Change in Control, all outstanding
options granted under this Plan shall then be immediately exercisable to the
extent of 100% of the Shares subject thereto notwithstanding any contrary
waiting or vesting periods specified in this Plan or in any applicable Stock
Option Agreement.
13. SALE OF OPTION SHARES. If any class of equity securities of the
Company is registered pursuant to Section 12 of the 1934 Act, any Optionee or
other person exercising the Option who is subject to Section 16 of the 1934 Act
by virtue of his or her relationship to the Company shall not sell or otherwise
dispose of the Shares subject to Option unless at least six months have elapsed
from the date of grant of the Option.
14. RIGHTS AS SHAREHOLDER. The Optionee shall have no rights as a
shareholder with respect to any Shares covered by an Option until the date of
issuance of a stock certificate to the Optionee for such Shares.
15. NO CONTRACT OF EMPLOYMENT. Nothing in the Plan or in any Option or
Stock Option Agreement shall confer on any Optionee any right to continue in the
employ or service of the Company or any Parent or Subsidiary of the Company or
interfere with the right of the Company to terminate such Optionee's employment
or other services at any time. The establishment of the Plan shall in no way,
now or hereafter, reduce, enlarge or modify the employment relationship between
the Company or any Parent or Subsidiary of the Company and the Optionee. Options
granted under the Plan shall not be affected by any change of duties or position
of the Optionee with the Company.
16. AGREEMENTS AND REPRESENTATIONS OF OPTIONEES. As a condition to the
exercise of an Option, the Board may, in its sole determination, require the
Optionee to represent in writing that the Shares being purchased are being
purchased only for investment and without any present intent at the time of the
acquisition of such Shares to sell or otherwise dispose of the same.
17. WITHHOLDING TAXES. The Company's obligation to deliver Shares upon
exercise of an Option shall be subject to the Optionee's satisfaction of all
applicable federal, state or local tax withholding obligations. The Company
shall have the right to withhold from any salary, wages, or other compensation
for services payable by the Company to or with respect to an Optionee, amounts
sufficient to satisfy any federal, state or local withholding tax liability
attributable to such Optionee's (or any beneficiary's or personal
representative's) receipt or disposition of Shares purchased under any Option or
to take any such other action as it deems necessary to enable it to satisfy any
such tax withholding obligations. The Board, in its sole discretion, may permit
Optionees to elect to have Shares that would be acquired upon exercise of
Options (valued at their Fair Market Value as of the date of exercise) withheld
by the Company in satisfaction of such Optionees' withholding tax liabilities.
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18. EXCHANGES. The Board may permit the voluntary surrender of all or a
portion of any Option granted under the Plan to be conditioned upon the granting
to the Optionee of a new Option for the same or a different number of Shares as
the Option surrendered, or may require such voluntary surrender as a condition
precedent to a grant of a new Option to such Optionee. Subject to the provisions
of the Plan, such new Option shall be exercisable at such price, during such
period and on such other terms and conditions as are specified by the Board at
the time the new Option is granted. Upon surrender, the Options surrendered
shall be cancelled and the Shares previously subject to them shall be available
for the grant of other Options.
19. REPURCHASE OF SHARES BY THE COMPANY. Any Shares purchased or
acquired upon exercise of an Option may, in the sole discretion of the Board, be
subject to repurchase by or forfeiture to the Company if and to the extent and
at the repurchase price, if any, specifically set forth in the Stock Option
Agreement pursuant to which the Shares were purchased or acquired. Certificates
representing Shares subject to such repurchase or forfeiture may be subject to
such escrow and stock legend provisions as may be set forth in the Stock Option
Agreement pursuant to which the Shares were purchased or acquired.
20. CONFIDENTIALITY AGREEMENTS. Upon the Company's request, each
Optionee shall execute, prior to or contemporaneously with the grant of any
Option hereunder, the Company's then standard form of agreement relating to
nondisclosure of confidential information, noncompetition and/or assignment of
inventions and related matters.
21. COMPLIANCE WITH LAWS AND REGULATIONS. The Plan, the grant and
exercise of Options thereunder, and the obligation of the Company to sell and
deliver the Shares under such Options, shall be subject to all applicable
federal and state laws, rules and regulations and to such approvals by any
government or regulatory agency as may be required. Options issued under the
Plan shall not be exercisable prior to (i) the date upon which the Company shall
have registered the Shares for which Options may be issued hereunder under the
1933 Act, and (ii) the completion of any registration or qualification of such
Shares under state law, or any ruling or regulation of any governmental body
which the Company shall, in its sole discretion, determine to be necessary or
advisable in connection therewith, or alternatively, unless the Company shall
have received an opinion from counsel to the Company stating that the exercise
of such Options may be effected without registering the Shares subject to such
Options under the 1933 Act, or under state or other law.
22. ASSUMPTION. The Plan may be assumed by the successors and assigns
of the Company.
23. EXPENSES. All expenses and costs in connection with administration
of the Plan shall be borne by the Company.
24. AMENDMENT, MODIFICATION AND TERMINATION OF THE PLAN. The Board may
terminate, amend or modify the Plan at any time without further action on the
part of the shareholders of the Company; provided, however, that (a) in no event
shall any amendment be made to the Plan which would cause the ISOs granted
hereunder to fail to qualify as incentive stock options under the Code; (b) any
amendment to the Plan which requires the approval of the shareholders of the
Company under the Code or the regulations promulgated thereunder shall be
subject to approval by the shareholders of the Company in accordance with the
Code or such regulations; and (c) any amendment to the Plan which requires the
approval of the shareholders of the Company under any rules promulgated under
the 1934 Act shall be subject to the approval of the shareholders of the Company
in accordance with such rules. No amendment, modification or termination of the
Plan shall in any manner adversely affect any Option previously granted to an
Optionee under the Plan without the consent of the Optionee or the transferee of
such Option.
With the consent of the Optionee affected, the Board may amend
outstanding Options or related agreements in a manner not inconsistent with the
Plan. The Board shall have the right to amend or modify the terms and provisions
of the Plan and of any outstanding ISO's granted under the Plan to the extent
necessary to qualify any or all such Options for such favorable federal income
tax treatment (including deferral of taxation upon exercise) as may be afforded
incentive stock options under Section 422 of the Code.
6
<PAGE> 8
25. TERM OF PLAN. The Plan shall become effective on the Effective
Date, subject to the approval of the Plan by the holders of a majority of the
shares of common stock of the Company entitled to vote on, or within twelve
months of, the date of the Plan's adoption by the Board, and all Options granted
prior to such approval shall be subject to such approval. The Plan shall
terminate on the tenth anniversary of the Effective Date, or such earlier date
as may be determined by the Board. Termination of the Plan, however, shall not
affect the rights of Optionees under Options previously granted to them, and all
unexpired Options shall continue in force and operation after termination of the
Plan except as they may lapse or be terminated by their own terms and
conditions.
26. LIMITATION OF LIABILITY. The liability of the Company Group under
this Plan or in connection with any exercise of an Option is limited to the
obligations expressly set forth in the Plan and in any Stock Option Agreements,
and no term or provision of this Plan or of any Stock Option Agreements shall be
construed to impose any further or additional duties, obligations or costs on
the Company Group not expressly set forth in the Plan or the Stock Option
Agreements.
27. DEFINITIONS.
As used in this Plan, the following terms have the meanings
indicated.
(a) Change In Control. "Change in Control" of the Company
shall be deemed to have occurred as of the first day that any one or more of the
following conditions shall have been satisfied:
(i) Any Person (other than a Person in control of
the Company as of the Effective Date of the Plan, or other than a trustee or
other fiduciary holding securities under an employee benefit plan of the
Company, or a company owned directly or indirectly by the stockholders of the
Company in substantially the same proportions as their ownership of voting
securities of the Company) becomes the Beneficial Owner, directly or indirectly,
of securities of the Company representing a majority of the combined voting
power of the Company's then outstanding securities; or
(ii) The stockholders of the Company approve: (x) a
plan of complete liquidation of the Company; or (y) an agreement for the sale or
disposition of all or substantially all the Company's assets; or (z) a merger,
consolidation, or reorganization of the Company with or involving any other
corporation, other than a merger, consolidation, or reorganization that would
result in the voting securities of the Company outstanding immediately prior
thereto continuing to represent (either by remaining outstanding or by being
converted into voting securities of the surviving entity) at least a majority of
the combined voting power of the voting securities of the Company (or such
surviving entity) outstanding immediately after such merger, consolidation, or
reorganization.
However, in no event shall a "Change in Control" be deemed to
have occurred, with respect to an Optionee, if the Optionee is part of a
purchasing group which consummates the Change in Control transaction. An
Optionee shall be deemed "part of a purchasing group" for purposes of the
preceding sentence if the Optionee is an equity participant or has been
identified as a potential equity participant in the purchasing company or group
except for: (i) passive ownership of less than three percent (3%) of the stock
of the purchasing company; or (ii) ownership of equity participation in the
purchasing company or group which is otherwise not significant, as determined
prior to the Change in Control by a majority of the nonemployee continuing
directors.
For purposes of this definition of Change in Control, "Person"
shall have the meaning ascribed to such term in Section 3(a)(9) of the 1934 Act,
and used in Section 13(d) and 14(d) thereof, including a "group" as defined in
Section 13(d) thereof, and "Beneficial Owner" shall have the meaning ascribed to
such term in Rule 13d-3 of the General Rules and Regulations under the 1934 Act.
(b) Disability. "Disability" means any injury of the body or
any disorder of the body or mind which renders the Optionee unable to perform
the material and substantial duties of his regular employment by the Company
Group at the time of the Optionee's termination of employment by the Company
Group. The Company's
7
<PAGE> 9
determination that a termination of employment was not a Disability Related
Termination may be disputed by the Optionee for purposes of any Option held by
the Optionee under this Plan upon written notice to the Company's Chief
Financial Officer within 30 days after termination of employment. If so
disputed, the Company will promptly select a physician, the Optionee will
promptly select a physician, and the physicians so selected will select a third
physician ("Independent Physician") who will make a binding determination of
Disability for purposes of this Plan. The Optionee will make himself available
for and submit to examinations by such physicians as may be directed by the
Company. Failure of the Optionee to submit to any examination or failure of the
Independent Physician to make his determination within 90 days after the date of
the notice that the Optionee disputed the Company's determination shall
constitute acceptance of the Company's determination as to Disability. If the
decision of the Independent Physician upholds the Company's determination, any
outstanding Option held by the Optionee shall be exercisable for 30 days from
the date of such decision (but not later than the expiration of the date of the
Stock Option Agreement) to the extent that the Option was exercisable on the
date of the Optionee's termination of employment and thereafter the Option shall
terminate.
(c) Fair Market Value. If the Shares are publicly traded, the
term "Fair Market Value," as used in this Plan, shall mean (i) the closing price
quoted in the NASDAQ National Market System, if the Shares are so quoted, (ii)
the last quote reported by NASDAQ for small-cap issues, if the Shares are so
quoted, (iii) the mean between the bid and asked prices as reported by NASDAQ,
if the Shares are so quoted, or (iv) if the Shares are listed on a securities
exchange, the closing price at which the Shares are quoted on such exchange, in
each case at the close of the date immediately before the Option is granted or,
if there be no quotation or sale on that date, the next previous date on which
the Shares were quoted or traded. In all other cases, Fair Market Value of the
Shares shall be determined by and in accordance with procedures established in
good faith by the Board and with respect to ISOs, conforming to regulations
issued by the Internal Revenue Service regarding incentive stock options.
(d) Key Associates. "Key Associates" means all executive,
administrative, operational and managerial employees of the Company Group who
are determined by the Board to be eligible for Options under the Plan.
(e) Parent and Subsidiary. The terms "Parent" and
"Subsidiary"shall have the respective meanings set forth in sections 424(e) and
(f) of the Code.
(f) Retirement. "Retirement" means the termination of
employment by an Optionee who has attained the age of at least 59 1/2, who has
been continuously employed by the Company Group for at least five years, and who
has entered into a written confidentiality and non-competition agreement with
the Company ("Retirement Agreement") in a form acceptable to the Board at the
time of such termination of employment.
(g) Termination of Employment For Cause. Termination of
employment "For Cause" means termination of employment for (i) the commission of
an act of dishonesty, including but not limited to misappropriation of funds or
property of the Company; (ii) the engagement in activities or conduct injurious
to the reputation of the Company; (iii) the conviction or entry of a guilty or
no contest plea to a misdemeanor involving an act of moral turpitude or a
felony; (iv) the violation of any of the terms and conditions of any written
agreement the Optionee may have from time to time with the Company (following 30
days' written notice from the Company specifying the violation and the
employee's failure to cure such violation within such 30-day period); or (v) any
refusal to comply with the written directives, policies or regulations
established from time to time by the Board.
CHECKFREE HOLDINGS CORPORATION
By: /s/ Peter J. Kight
---------------------------------------------
Peter J. Kight
President and Chief Executive Officer
8
<PAGE> 10
FORM OF STOCK OPTION AGREEMENT
[ISO /or/ NSO] No. 95-_____
EXHIBIT A
CHECKFREE HOLDINGS CORPORATION
[INCENTIVE /OR/ NONSTATUTORY]
STOCK OPTION AGREEMENT
UNDER THE
AMENDED AND RESTATED
1995 STOCK OPTION PLAN
CheckFree Holdings Corporation (the "Company") hereby grants, effective
this ___ day of ________ , 19__ (the "Effective Date") to ______________________
(the "Optionee") an option to purchase ________ shares of its common stock,
without par value (the "Option Shares"), at a price of ____________ Dollars
($_______________) per share pursuant to the Company's Amended and Restated 1995
Stock Option Plan (the "Plan"), subject to the following:
1. RELATIONSHIP TO THE PLAN. This option is granted pursuant to the
Plan, and is in all respects subject to the terms, provisions and definitions of
the Plan and any amendments thereto. The Optionee acknowledges receipt of a copy
of the Plan and represents that he or she is familiar with the terms and
conditions thereof. The Optionee accepts this option subject to all the terms
and provisions of the Plan (including without limitation provisions relating to
nontransferability, exercise of the option, sale of the option shares,
termination of the option, adjustment of the number of shares subject to the
option, and the exercise price of the option). The Optionee further agrees that
all decisions and interpretations made by the Stock Option Committee (the
"Committee"), as established under the Plan, and as from time to time
constituted, are final, binding, and conclusive upon the Optionee and his or her
heirs. This option [IS/IS NOT] an Incentive Stock Option under the Plan.
2. TIME OF EXERCISE. This option may be exercised, from time to time,
in full or in part, by the Optionee to the extent the option is vested based
upon the number of full years the Optionee is an employee of the Company after
the Effective Date (the "Vested Percentage") and remains exercisable (subject to
the provisions herein and the Plan) until it has been exercised as to all of the
Shares or the anniversary of the Effective Date, whichever occurs first. The
Optionee is entitled to exercise this option to the extent of the percentage of,
and not to exceed in the aggregate, the maximum number of the Shares, based upon
the Vested Percentage, from time to time, as determined in accordance with the
following schedule:
Years of Employment Total
After the Effective Date Vested Percentage
Notwithstanding the foregoing, this option may not be exercised unless (i) the
Option Shares are registered under the Securities Act of 1933, as amended, and
are registered or qualified under applicable state securities or "blue sky"
laws, or (ii) the Company has received an opinion of counsel to the Company to
the effect that the option may be exercised and Option Shares may be issued by
the Company pursuant thereto without such registration or qualification. If this
option is not otherwise exercisable by reason of the foregoing sentence, the
Company will take reasonable steps to comply with applicable state and federal
securities laws in connection with such issuance.
9
<PAGE> 11
3. METHODS OF EXERCISE. This option is exercisable by delivery to the
Company of written notice of exercise which specifies the number of shares to be
purchased and the election of the method of payment therefor, which will be one
of the methods of payment specified in subparagraph 10(c) of the Plan. If
payment is otherwise than payment in full in cash, the method of payment is
subject to the consent of the Committee. Upon receipt of payment for the shares
to be purchased pursuant to the option or, if applicable, the shares to be
delivered pursuant to the election of an alternative payment method, the Company
will deliver or cause to be delivered to the Optionee, to any other person
exercising this option, or to a broker or dealer if the method of payment
specified in clause (iv) of subparagraph 10(c) of the Plan is elected, a
certificate or certificates for the number of shares with respect to which this
option is being exercised, registered in the name of the Optionee or other
person exercising the option, or if appropriate, in the name of such broker or
dealer; provided, however, that if any law or regulation or order of the
Securities and Exchange Commission or other body having jurisdiction over the
exercise of this option will require the Company or Optionee (or other person
exercising this option) to take any action in connection with the shares then
being purchased, the delivery of the certificate or certificates for such shares
may be delayed for the period necessary to take and complete such action.
4. ACQUISITION FOR INVESTMENT. This option is granted on the condition
that the acquisition of the Option Shares hereunder will be for the account of
the Optionee (or other person exercising this option) for investment purposes
and not with a view to resale or distribution, except that such condition will
be inoperative if the Option Shares are registered under the Securities Act of
1933, as amended, or if in the opinion of counsel for the Company such shares
may be resold without registration. At the time of any exercise of the option,
the Optionee (or other person exercising this option) will execute such further
agreements as the Company may require to implement the foregoing condition and
to acknowledge the Optionee's (or such other person's) familiarity with
restrictions on the resale of the Option Shares under applicable securities
laws.
5. DISPOSITION OF SHARES. The Optionee or any other person who may
exercise this option will notify the Company within seven (7) days of any sale
or other transfer of any Option Shares. If any class of equity securities of the
Company is registered pursuant to section 12 of the Securities Exchange Act of
1934, as amended, and the Optionee or any other person who may exercise this
option is subject to section 16 of that Act by virtue of such Optionee's or
person's relationship to the Company, the Optionee or other person exercising
this Option agrees not to sell or otherwise dispose of any Option Shares unless
at least six (6) months have elapsed from the Effective Date.
6. WITHHOLDING. As a condition to the issuance of any of the Shares
under this Option, Optionee or any person who may exercise this Option
authorizes the Company to withhold in accordance with applicable law from any
salary, wages or other compensation for services payable by the Company to or
with respect to Optionee any and all taxes required to be withheld by the
Company under federal, state or local law as a result of such Optionee's or such
person's receipt or disposition of Shares purchased under this Option. If, for
any reason, the Company is unable to withhold all or any portion of the amount
required to be withheld, Optionee (or any person who may exercise this Option)
agrees to pay to the Company upon exercise of this Option an amount equal to the
withholding required to be made less the amount actually withheld by the
Company.
7. GENERAL. This Agreement will be construed as a contract under the
laws of the State of Ohio without reference to Ohio's choice of law rules. It
may be executed in several counterparts, all of which will constitute one
Agreement. It will bind and, subject to the terms of the Plan, benefit the
parties and their respective successors, assigns, and legal representatives.
10
<PAGE> 12
IN WITNESS WHEREOF, the Company and the Optionee have executed this
Agreement as of the date first above written.
OPTIONEE: CHECKFREE HOLDINGS CORPORATION
_________________________________ By: _____________________________
Its: ____________________________
11
<PAGE> 1
CHECKFREE HOLDINGS CORPORATION
Exhibit 4(b)
<PAGE> 2
RESTATED CERTIFICATE OF INCORPORATION
OF
CHECKFREE HOLDINGS CORPORATION
* * * * * * * * * * * * * * * * * *
The above corporation, CheckFree Holdings Corporation (the
"Corporation"), existing pursuant to the General Corporation Law of the State of
Delaware, desiring to give notice of corporate action effectuating the
restatement and amendment of its Certificate of Incorporation, sets forth the
following facts:
(i) The date of filing of the Corporation's original Certificate of
Incorporation was December 15, 1997;
(ii) The Corporation's present name is CheckFree Holdings Corporation;
(iii) This Restated Certificate of Incorporation was duly adopted in
accordance with the provisions of Sections 242 and 245 of the General
Corporation Law of the State of Delaware; and
(iv) The exact text of the Restated Certificate of Incorporation is
amended to read as follows:
FIRST: The name of the Corporation is CheckFree Holdings Corporation.
SECOND: The address of its registered office in the State of Delaware is No.
1209 Orange Street, in the City of Wilmington, County of New Castle. The name of
its registered agent at such address is The Corporation Trust Company.
THIRD: The nature of the business or purposes to be conducted or promoted is to
engage in any lawful act or activity for which corporations may be organized
under the General Corporation Law of the State of Delaware.
FOURTH: (A) Aggregate Number of Shares. The aggregate number of shares of stock
which the Corporation shall have authority to issue is 165,000,000 shares,
consisting of 150,000,000 shares of common stock, $.01 par value (the "Common
Stock"), 13,500,000 shares of preferred stock, $.01 par value (the "Preferred
Stock"), and 1,500,000 shares of Series A Junior Participating Cumulative
Preferred Stock, $.01 par value ("Series A Preferred Stock").
<PAGE> 3
(B) Common Shares. Each holder of Common Stock shall be
entitled to one vote for each share of Common Stock held of record on all
matters presented for vote of the stockholders. Subject to the provisions of the
General Corporation Law of the State of Delaware, dividends may be paid on the
Common Stock at such times and in such amounts as the Board of Directors shall
determine. Upon the dissolution, liquidation, or winding up of the Corporation,
after any preferential amounts to be distributed to the holders of the Preferred
Stock then outstanding have been paid or declared set apart for payment, the
holders of Common Stock shall be entitled to receive all remaining assets of the
Corporation available for distribution to its stockholders ratably and
proportioned to the number of shares held by them.
(C) Preferred Stock. The shares of Preferred Stock may be
issued from time to time in one or more series. The Board of Directors of the
Corporation is hereby authorized to establish from time to time by resolution or
resolutions the number of shares to be included in each such series and to fix
the designation, powers, preferences, and relative participating, optional,
conversion, and other special rights of the shares of each such series and the
qualifications, limitations, or restrictions thereof, including but not limited
to the fixing of dividend rights, rates, preferences, and other terms;
redemption rights, prices, and other terms (including any sinking fund
provisions); conversion rights, prices or rates of exchange, and other terms;
liquidation preferences and other terms; and voting rights in addition to any
voting rights provided by law, and other terms, which may be general or limited;
all to the fullest extent now or hereafter permitted by the General Corporation
Law of the State of Delaware; and to increase or decrease the number of shares
of any series subsequent to the issue of shares of that series, but not below
the number of shares of such series then outstanding. In the event the number of
shares of any series shall be so decreased, the shares constituting such
decrease shall resume the status which they had prior to the adoption of the
resolution originally fixing the number of shares of such series.
(D) Series A Junior Participating Cumulative Preferred Stock.
Section 1. Designation and Amount. The shares of such series
shall be designated as Series A Junior Participating Cumulative Preferred Stock,
par value $.01 per share (the "Series A Preferred Stock"), and the number of
shares constituting such series shall be 1,500,000 (one million five hundred
thousand).
Section 2. Dividends and Distributions.
(a) The holders of shares of Series A Preferred Stock, in preference to
the holders of shares of Common Stock, par value $.01 per share, of the
Corporation (the "Common Stock") and of any other junior stock of the
Corporation that may be outstanding, shall be entitled to receive,
when, as and if declared by the Board of Directors out of funds legally
available for the purpose, quarterly dividends payable in cash on the
tenth day of January, April, July and October in each year (each such
date being referred to herein as a "Quarterly Dividend Payment Date"),
commencing on the first Quarterly Dividend Payment Date after the first
issuance of a share or
2
<PAGE> 4
fraction of a share of Series A Preferred Stock, in an amount per share
(rounded to the nearest cent) equal to the greater of (i) $.25 per
share ($1.00 per annum), or (ii) subject to the provision for
adjustment hereinafter set forth, 100 times the aggregate per share
amount of all cash dividends, and 100 times the aggregate per share
amount (payable in kind) of all non-cash dividends or other
distributions, other than a dividend payable in shares of Common Stock,
or a subdivision of the outstanding shares of Common Stock (by
reclassification or otherwise), declared on the Common Stock since the
immediately preceding Quarterly Dividend Payment Date or, with respect
to the first Quarterly Dividend Payment Date, since the first issuance
of any share or fraction of a share of Series A Preferred Stock. In the
event that the Corporation shall at any time declare or pay any
dividend on Common Stock payable in shares of Common Stock, or effect a
subdivision or combination or consolidation of the outstanding shares
of Common Stock (by reclassification or otherwise) into a greater or
lesser number of shares of Common Stock, then and in each such event,
the amount to which the holder of each share of Series A Preferred
Stock was entitled immediately prior to such event under clause (ii) of
the preceding sentence shall be adjusted by multiplying such amount by
a fraction, the numerator of which is the number of shares of Common
Stock outstanding immediately after such event, and the denominator of
which is the number of shares of Common Stock that were outstanding
immediately prior to such event.
(b) The Corporation shall declare a dividend or distribution on the
Series A Preferred Stock as provided in paragraph (a) of this Section 2
immediately after it declares a dividend or distribution on the Common
Stock (other than a dividend payable in shares of Common Stock);
provided, however, that in the event no dividend or distribution shall
have been declared on the Common Stock during the period between any
Quarterly Dividend Payment Date and the next subsequent Quarterly
Dividend Payment Date, a dividend of $.25 per share ($1.00 per annum)
on the Series A Preferred Stock shall nevertheless be payable on such
subsequent Quarterly Dividend Payment Date.
(c) Dividends shall begin to accrue and be cumulative on outstanding
shares of Series A Preferred Stock from the Quarterly Dividend Payment
Date next preceding the date of issue of such shares of Series A
Preferred Stock, unless the date of issue of such shares is prior to
the record date for the first Quarterly Dividend Payment Date, in which
case dividends on such shares shall begin to accrue from the date of
issue of such shares, or unless the date of issue is a Quarterly
Dividend Payment Date or is a date after the record date for the
determination of holders of shares of Series A Preferred Stock entitled
to receive a quarterly dividend and before such Quarterly Dividend
Payment Date, in either of which cases such dividends shall begin to
accrue and be cumulative from such Quarterly Dividend Payment Date.
Accrued but unpaid dividends shall cumulate but shall not bear
interest. Dividends paid on the shares of Series A Preferred Stock in
an amount less than the total amount of such dividends
3
<PAGE> 5
at the time accrued and payable on such shares shall be allocated pro
rata on a share-by-share basis among all such shares at the time
outstanding. The Board of Directors may fix a record date for the
determination of holders of shares of Series A Preferred Stock entitled
to receive payment of a dividend or distribution declared thereon,
which record date shall be not more than 60 days prior to the date
fixed for the payment thereof.
Section 3. Voting Rights. The holders of shares of Series A
Preferred Stock shall have the following voting rights:
(a) Each share of Series A Preferred Stock shall entitle the holder
thereof to 100 votes (and each one one-hundredth of a share of Series A
Preferred Stock shall entitle the holder thereof to one vote) on all
matters submitted to a vote of the stockholders of the Corporation. In
the event that the Corporation shall at any time declare or pay any
dividend on Common Stock payable in shares of Common Stock or effect a
subdivision or combination or consolidation of the outstanding shares
of Common Stock (by reclassification or otherwise than by payment of a
dividend in shares of Common Stock) into a greater or lesser number of
shares of Common Stock, then and in each such event, the number of
votes per share to which holders of shares of Series A Preferred Stock
were entitled immediately prior to such event shall be adjusted by
multiplying such number by a fraction, the numerator of which is the
number of shares of Common Stock outstanding immediately after such
event, and the denominator of which is the number of shares of Common
Stock that were outstanding immediately prior to such event.
(b) Except as otherwise provided in the Restated Certificate of
Incorporation of the Corporation or herein or by law, the holders of
shares of Series A Preferred Stock and the holders of shares of Common
Stock shall vote together as one class on all matters submitted to a
vote of stockholders of the Corporation.
(c) In addition, the holders of shares of Series A Preferred Stock
shall have the following special voting rights:
(i) In the event that at any time dividends on Series A
Preferred Stock, whenever accrued and whether or not
consecutive, shall not have been paid or declared and a sum
sufficient for the payment thereof set aside, in an amount
equivalent to six quarterly dividends on all shares of Series
A Preferred Stock at the time outstanding, then and in each
such event, the holders of shares of Series A Preferred Stock
and each other series of preferred stock now or hereafter
issued that shall be accorded such class voting right by the
Board of Directors and that shall have the right to elect one
director (or, in the event any such other series is entitled
to a greater number of directors,
4
<PAGE> 6
such number of directors, which shall be cumulative with and
not in addition to the director provided for herein, such
director or directors being hereinafter referred to as
"Special Directors") as the result of a prior or subsequent
default in payment of dividends on such series (each such
other series being hereinafter called "Other Series of
Preferred Stock"), voting separately as a class without regard
to series, shall be entitled to elect the Special Director at
the next annual meeting of stockholders of the Corporation, in
addition to the directors to be elected by the holders of all
shares of the Corporation entitled to vote for the election of
directors, and the holders of all shares (including the Series
A Preferred Stock) otherwise entitled to vote for directors,
voting separately as a class, shall be entitled to elect the
remaining members of the Board of Directors, provided that the
Series A Preferred Stock and each Other Series of Preferred
Stock, voting as a class, shall not have the right to elect
more than one Special Director (in addition to any Special
Director to which the holders of any Other Series of Preferred
Stock are then entitled). Such special voting right of the
holders of shares of Series A Preferred Stock may be exercised
until all dividends in default on the Series A Preferred Stock
shall have been paid in full or declared and funds sufficient
therefor set aside, and when so paid or provided for, such
special voting right of the holders of shares of Series A
Preferred Stock shall cease, but subject always to the same
provisions for the vesting of such special voting rights in
the event of any such future dividend default or defaults.
(ii) At any time after such special voting rights shall have
so vested in the holders of shares of Series A Preferred
Stock, the President or the Secretary of the Corporation may,
and upon the written request of the holders of record of 10%
or more in number of the shares of Series A Preferred Stock
and each Other Series of Preferred Stock then outstanding
addressed to the Secretary at the principal executive office
of the Corporation shall, call a special meeting of the
holders of shares of Preferred Stock so entitled to vote, for
the election of the Special Directors to be elected by them as
herein provided, to be held within 60 days after such call and
at the place and upon the notice provided by law and in the
By-laws for the holding of meetings of stockholders; provided,
however, that the President or the Secretary shall not be
required to call such special meeting in the case of any such
request received less than 90 days before the date fixed for
any annual meeting of stockholders, and if in such case such
special meeting is not called or held, the holders of shares
of Preferred Stock so entitled to vote shall be entitled to
exercise the special voting
5
<PAGE> 7
rights provided in this paragraph at such annual meeting. If
any such special meeting required to be called as above
provided shall not be called by the President or the Secretary
within 30 days after receipt of any such request, then the
holders of record of 10% or more in number of the shares of
Series A Preferred Stock and each Other Series of Preferred
Stock then outstanding may designate in writing one of their
number to call such meeting, and the person so designated may,
at the expense of the Corporation, call such meeting to be
held at the place and upon the notice given by such person,
and for that sole purpose shall have access to the stock books
of the Corporation. No such special meeting and no adjournment
thereof shall be held on a date later than 60 days before the
annual meeting of stockholders. If, at any meeting so called
or at any annual meeting held while the holders of shares of
Series A Preferred Stock have the special voting rights
provided for in this paragraph, the holders of not less than
40% of the aggregate voting power of Series A Preferred Stock
and each Other Series of Preferred Stock then outstanding are
present in person or by proxy, which percentage shall be
sufficient to constitute a quorum for the election of
additional directors as herein provided, the then authorized
number of directors of the Corporation shall be increased by
the number of Special Directors to be elected, as of the time
of such special meeting or the time of the first such annual
meeting held while such holders have special voting rights and
such quorum is present, and the holders of shares of Series A
Preferred Stock and each Other Series of Preferred Stock,
voting as a class, shall be entitled to elect the Special
Director or Directors so provided for. If the directors of the
Corporation are then divided into classes under provisions of
the Restated Certificate of Incorporation of the Corporation
or the By-laws, the Special Director or Directors shall belong
to each class of directors in which a vacancy is created as a
result of such increase in the authorized number of directors.
If the foregoing expansion of the size of the Board of
Directors shall not be valid under applicable law, then the
holders of shares of Series A Preferred Stock and of each
Other Series of Preferred Stock, voting as a class, shall be
entitled, at the meeting of stockholders at which they would
otherwise have voted, to elect a Special Director or Directors
to fill any then existing vacancies on the Board of Directors,
and shall additionally be entitled, at such meeting and each
subsequent meeting of stockholders at which directors are
elected, to elect all of the directors then being elected
until by such class vote the appropriate number of Special
Directors has been so elected.
6
<PAGE> 8
(iii) Upon the election at such meeting by the holders of
shares of Series A Preferred Stock and each Other Series of
Preferred Stock, voting as a class, of the Special Director or
Directors they are entitled so to elect, the persons so
elected, together with such persons as may be directors or as
may have been elected as directors by the holders of all
shares (including Series A Preferred Stock) otherwise entitled
to vote for directors, shall constitute the duly elected
directors of the Corporation. Each Special Director so elected
by holders of shares of Series A Preferred Stock and each
Other Series of Preferred Stock, voting as a class, shall
serve until the next annual meeting or until their respective
successors shall be elected and qualified, or if any such
Special Director is a member of a class of directors under
provisions dividing the directors into classes, each such
Special Director shall serve until the annual meeting at which
the term of office of such Special Director's class shall
expire or until such Special Director's successor shall be
elected and shall qualify, and at each subsequent meeting of
stockholders at which the directorship of any Special Director
is up for election, said special class voting rights shall
apply in the reelection of such Special Director or in the
election of such Special Director's successor; provided,
however, that whenever the holders of shares of Series A
Preferred Stock and each Other Series of Preferred Stock shall
be divested of the special rights to elect one or more Special
Directors as above provided, the terms of office of all
persons elected as Special Directors, or elected to fill any
vacancies resulting from the death, resignation, or removal of
Special Directors shall forthwith terminate (and the number of
directors shall be reduced accordingly).
(iv) If, at any time after a special meeting of stockholders
or an annual meeting of stockholders at which the holders of
shares of Series A Preferred Stock and each Other Series of
Preferred Stock, voting as a class, have elected one or more
Special Directors as provided above, and while the holders of
shares of Series A Preferred Stock and each Other Series of
Preferred Stock shall be entitled so to elect one or more
Special Directors, the number of Special Directors who have
been so elected (or who by reason of one or more resignations,
deaths or removals have succeeded any Special Directors so
elected) shall by reason of resignation, death or removal be
reduced the vacancy in the Special Directors may be filled by
any one or more remaining Special Director or Special
Directors. In the event that such election shall not occur
within 30 days after such vacancy arises, or in the event that
there shall not be incumbent at least one Special Director,
the President or the Secretary of the
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Corporation may, and upon the written request of the holders
of record of 10% or more in number of the shares of Series A
Preferred Stock and each Other Series of Preferred Stock then
outstanding addressed to the Secretary at the principal office
of the Corporation shall, call a special meeting of the
holders of shares of Series A Preferred Stock and each Other
Series of Preferred Stock so entitled to vote, for an election
to fill such vacancy or vacancies, to be held within 60 days
after such call and at the place and upon the notice provided
by law and in the By-laws for the holding of meetings of
stockholders; provided, however, that the President or the
Secretary shall not be required to call such special meeting
in the case of any such request received less than 90 days
before the date fixed for any annual meeting of stockholders,
and if in such case such special meeting is not called, the
holders of shares of Preferred Stock so entitled to vote shall
be entitled to fill such vacancy or vacancies at such annual
meeting. If any such special meeting required to be called as
above provided shall not be called by the President or the
Secretary within 30 days after receipt of any such request,
then the holders of record of 10% or more in number of the
shares of Series A Preferred Stock and each Other Series of
Preferred Stock then outstanding may designate in writing one
of their number to call such meeting, and the person so
designated may, at the expense of the Corporation, call such
meeting to be held at the place and upon the notice above
provided, and for that purpose shall have access to the stock
books of the Corporation; no such special meeting and no
adjournment thereof shall be held on a date later than 60 days
before the annual meeting of stockholders.
(d) Nothing herein shall prevent the directors or stockholders from
taking any action to increase the number of authorized shares of Series
A Preferred Stock, or increasing the number of authorized shares of
Preferred Stock of the same class as the Series A Preferred Stock or
the number of authorized shares of Common Stock, or changing the par
value of the Common Stock or Preferred Stock, or issuing options,
warrants or rights to any class of stock of the Corporation as
authorized by the Restated Certificate of Incorporation of the
Corporation, as it may hereafter be amended.
(e) Except as set forth herein, holders of shares of Series A Preferred
Stock shall have no special voting rights and their consent shall not
be required (except to the extent they are entitled to vote as set
forth in the Restated Certificate of Incorporation of the Corporation
or herein or by law) for taking any corporate action.
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Section 4. Certain Restrictions.
(a) Whenever any dividends or other distributions payable on the Series
A Preferred Stock as provided in Section 2 hereof are in arrears,
thereafter and until all accrued and unpaid dividends and
distributions, whether or not declared, on shares of Series A Preferred
Stock outstanding shall have been paid in full, the Corporation shall
not, directly or indirectly:
(i) declare or pay dividends on, or make any other
distributions with respect to, any shares of stock ranking
junior (either as to dividends or upon liquidation,
dissolution or winding up) to the Series A Preferred Stock;
(ii) declare or pay dividends on, or make any other
distributions with respect to, any shares of stock ranking on
a parity (either as to dividends or upon liquidation,
dissolution or winding up) with the Series A Preferred Stock,
except dividends paid ratably on shares of the Series A
Preferred Stock and all such parity stock on which dividends
are payable or in arrears in proportion to the total amounts
to which the holders of all such shares are then entitled;
(iii) redeem or purchase or otherwise acquire for
consideration shares of any stock ranking junior (either as to
dividends or upon liquidation, dissolution or winding up) with
the Series A Preferred Stock, provided that the Corporation
may at any time redeem, purchase or otherwise acquire shares
of any such junior stock in exchange for shares of any stock
of the Corporation ranking junior (either as to dividends or
upon dissolution, liquidation or winding up) to the Series A
Preferred Stock; or
(iv) purchase or otherwise acquire for consideration any
shares of Series A Preferred Stock, or any shares of stock
ranking on a parity with the Series A Preferred Stock, except
in accordance with a purchase offer made in writing or by
publication (as determined by the Board of Directors) to all
holders of such shares upon such terms as the Board of
Directors, after consideration of the respective annual
dividend rates and other relative rights and preferences of
the respective series and classes, shall determine in good
faith will result in fair and equitable treatment among the
respective series or classes.
(b) The Corporation shall not permit any subsidiary of the
Corporation to purchase or otherwise acquire for consideration,
directly or indirectly, any shares of stock of the Corporation unless
the Corporation could, under paragraph (a) of this Section 4, purchase
or otherwise acquire such shares at such time and in such manner.
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<PAGE> 11
Section 5. Reacquired Shares. Any shares of Series A Preferred
Stock purchased or otherwise acquired by the Corporation in any manner
whatsoever shall be retired and cancelled promptly after the acquisition
thereof. All such shares shall upon their cancellation become authorized but
unissued shares of preferred stock, without designation as to series, and may be
reissued as part of any series of preferred stock created by resolution or
resolutions of the Board of Directors (including Series A Preferred Stock),
subject to the conditions and restrictions on issuance set forth herein.
Section 6. Liquidation, Dissolution or Winding Up. Upon any
liquidation, dissolution or winding up of the Corporation, no distribution shall
be made to:
(a) the holders of shares of stock ranking junior (either as
to dividends or upon liquidation, dissolution or winding up) to the
Series A Preferred Stock unless, prior thereto, the holders of shares
of Series A Preferred Stock shall have received the greater of (i)
$1.00 per share ($.001 per one one-hundredth of a share), plus an
amount equal to accrued and unpaid dividends and distributions thereon,
whether or not declared, to the date of such payment, or (ii) an
aggregate amount per share, subject to the provision for adjustment
hereinafter set forth, equal to 100 times the aggregate amount to be
distributed per share to holders of shares of Common Stock; or
(b) the holders of shares of stock ranking on a parity (either
as to dividends or upon liquidation, dissolution or winding up) with
the Series A Preferred Stock, except distributions made ratably on the
Series A Preferred Stock and all other such parity stock in proportion
to the total amounts to which the holders of all such shares are
entitled upon such liquidation, dissolution or winding up.
In the event that the Corporation shall at any time declare or pay any
dividend on Common Stock payable in shares of Common Stock, or effect a
subdivision or combination or consolidation of the outstanding shares of Common
Stock (by reclassification or otherwise) into a greater or lesser number of
shares of Common Stock, then and in each such event, the aggregate amount to
which the holder of each share of Series A Preferred Stock was entitled
immediately prior to such event under the proviso in clause (a) of the preceding
sentence shall be adjusted by multiplying such amount by a fraction, the
numerator of which is the number of shares of Common Stock outstanding
immediately after such event, and the denominator of which is the number of
shares of Common Stock that were outstanding immediately prior to such event.
Section 7. Consolidation, Merger, etc. In the event that the
Corporation shall enter into any consolidation, merger, combination or other
transaction in which the shares of Common Stock are exchanged for or changed
into other stock or securities, cash and/or any other property, or otherwise
changed, then and in each such event, the shares of Series A Preferred Stock
shall at the same time be similarly exchanged or changed in an amount per share
(subject to the provision for adjustment hereinafter set forth) equal to 100
times the aggregate amount of stock, securities,
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<PAGE> 12
cash and/or any other property (payable in kind), as the case may be, into which
or for which each share of Common Stock is changed or exchanged. In the event
that the Corporation shall at any time declare or pay any dividend on Common
Stock payable in shares of Common Stock, or effect a subdivision or combination
or consolidation of the outstanding shares of Common Stock (by reclassification
or otherwise) into a greater or lesser number of shares of Common Stock, then
and in each such event, the amount set forth in the preceding sentence with
respect to the exchange or change of shares of Series A Preferred Stock shall be
adjusted by multiplying such amount by a fraction, the numerator of which is the
number of shares of Common Stock outstanding immediately after such event, and
the denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
Section 8. No Redemption. The shares of Series A Preferred
Stock shall not be redeemable. Notwithstanding the foregoing, the Corporation
may acquire shares of Series A Preferred Stock in any other manner permitted by
law, the Restated Certificate of Incorporation of the Corporation or herein.
Section 9. Rank. Unless otherwise provided in the Restated
Certificate of Incorporation of the Corporation or a Certificate of Designations
relating to a subsequent series of preferred stock of the Corporation, the
Series A Preferred Stock shall rank junior to all other series of the
Corporation's preferred stock as to the payment of dividends and the
distribution of assets on liquidation, dissolution or winding up, and senior to
the Common Stock of the Corporation.
Section 10. Amendment. The Restated Certificate of
Incorporation of the Corporation shall not be amended in any manner that would
materially and adversely alter or change the powers, preferences or special
rights of the Series A Preferred Stock without the affirmative vote of the
holders of at least two-thirds of the outstanding shares of Series A Preferred
Stock, voting together as a single series.
Section 11. Fractional Shares. Series A Preferred Stock may be
issued in fractions of a share (in one one-hundredths (1/100) of a share and
integral multiples thereof) that shall entitle the holder thereof, in proportion
to such holder's fractional shares, to exercise voting rights, receive
dividends, participate in distributions and have the benefit of all other rights
of holders of shares of Series A Preferred Stock.
FIFTH: (A) Nominations for election of directors shall be made in
the manner provided by the By-Laws of the Corporation. The number of directors
of the Corporation shall be fixed by or pursuant to the By-Laws of the
Corporation.
(B) The directors shall be divided into three classes, Class
I, Class II, and Class III. Each such class shall consist, as nearly as
possible, of one-third of the total number of directors and any remaining
directors shall be included within each such class or classes as the Board of
Directors shall designate. Class I directors shall hold office initially for a
term expiring at the 1999 annual meeting of stockholders, Class II directors
shall hold office initially for a term expiring at the
11
<PAGE> 13
2000 annual meeting of stockholders; and Class III directors shall hold office
initially for a term expiring at the 1998 annual meeting of stockholders. At
each annual meeting of stockholders, successors to the class of directors whose
term expires at that annual meeting shall be elected to hold office for a
three-year term. If the number of directors is changed, any increase or decrease
shall be apportioned among the classes so as to maintain the number of directors
in each class as nearly equal as possible. A director shall hold office, subject
to any removal, death, resignation, or retirement until the annual meeting for
the year in which his term expires and until his successor shall be elected and
qualify.
(C) Notwithstanding any other provision of this Certificate of
Incorporation or the By-Laws of the Corporation (and notwithstanding the fact
that some lesser percentage may be specified by the General Corporation Law of
the State of Delaware, this Certificate of Incorporation or the By-Laws of the
Corporation), any director or the entire board of directors of the Corporation
may be removed from office at any time, but only for cause and only by the
affirmative vote of the holders of at least eighty (80%) of all of the
outstanding shares of capital stock of the Corporation entitled to vote on the
election of directors at a meeting of stockholders called for that purpose,
except that if the Board of Directors, by an affirmative vote of at least
sixty-six and two-thirds (66-2/3%) of the entire Board of Directors, recommends
removal of a director to the stockholders, such removal may be effected by the
affirmative vote of the holders of at least a majority of the outstanding shares
of capital stock of the Corporation present in person or represented by proxy
and entitled to vote on the election of directors at a meeting of stockholders
called for that purpose.
(D) Vacancies and newly-created directorships resulting from
any increase in the authorized number of directors may be filled by a majority
of the directors then in office, although less than a quorum, or by a sole
remaining director, and the directors so chosen shall hold office for a term
expiring at the annual meeting of stockholders at which the term of the class to
which they have been elected expires and until their successors are duly elected
and qualified. If there are no directors in office, then an election of
directors may be held in the manner provided by the General Corporation Law of
the State of Delaware.
(E) Notwithstanding the foregoing, whenever the holders of any
one or more classes or series of Preferred Stock issued by this Corporation
shall have the right, voting separately by class or series, to elect directors
at an annual or special meeting of stockholders, the election, term of office,
filling of vacancies, terms of removal, and other features of such directorships
shall be governed by the terms of Article FOURTH and the resolution or
resolutions establishing such class or series adopted pursuant thereto and such
directors so elected shall not be divided into classes pursuant to this Article
FIFTH unless expressly provided by such terms.
(F) Elections of directors need not be by written ballot
unless the By-Laws of the Corporation shall so provide.
SIXTH: In furtherance and not in limitation of the powers conferred by statute,
the Board of Directors is expressly authorized to make, alter, or repeal the
By-Laws of the Corporation.
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SEVENTH: The Board of Directors shall base the response of the Corporation to
any "Acquisition Proposal" on the Board of Directors' evaluation of what is in
the best interest of the Corporation. In evaluating what is in the best interest
of the Corporation, the Board of Directors shall consider all relevant factors
including, without limitation:
(1) The best interest of the stockholders which, for this
purpose, requires the Board of Directors to consider, among other
factors, not only the consideration offered in the Acquisition Proposal
in relation to the then current market price of the Corporation's
stock, but also in relation to the current value of the Corporation in
a freely negotiated transaction and in relation to the Board of
Directors' then estimate of the future value of the Corporation as an
independent entity or as the subject of a future Acquisition Proposal;
(2) Such other factors as the Board of Directors determines to
be relevant, including, among other factors, the long-term and
short-term interests of the Corporation and its subsidiaries and their
businesses and properties and the social, legal, and economic effects
upon the employees, suppliers, customers, creditors, and other affected
persons, firms, and corporations and on the communities and
geographical areas in which the Corporation and its subsidiaries
operate or are located.
"Acquisition Proposal" means any proposal for the consolidation or
merger of the Corporation with another corporation, any share exchange involving
the Corporation's outstanding capital stock, any liquidation or dissolution of
the Corporation, any transfer of all or a material portion of the assets of the
Corporation, and any tender offer or exchange offer for any of the Corporation's
outstanding stock.
EIGHTH: No director of the Corporation shall be personally liable to the
Corporation or to its stockholders for monetary damages for breach of fiduciary
duty as a director; provided, however, that such provision shall not eliminate
or limit the liability of a director (i) for any breach of the director's duty
of loyalty to the Corporation or to its stockholders, (ii) for acts or omissions
not in good faith or which involve intentional misconduct or a knowing violation
of law; (iii) for the payment of a dividend or the payment for the purchase or
redemption of the Corporation's stock in violation of Section 174 of the General
Corporation Law of the State of Delaware; or (iv) for any transaction from which
the director derived an improper personal benefit.
NINTH: The Corporation is to have perpetual existence.
TENTH: (A) Any action required to be taken at any annual or special meeting of
stockholders of the Corporation, or any action which may be taken at any annual
or special meeting of such stockholders, may be taken without a meeting, without
prior notice and without a vote, if a consent in writing, setting forth the
action so taken, shall be signed by all of the holders of outstanding stock who
would be entitled to notice of such meeting.
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<PAGE> 15
(B) Meetings of stockholders may be held within or without the
State of Delaware, as the By-Laws may provide. The books of the Corporation may
be kept (subject to any provision contained in the General Corporation Law of
the State of Delaware) outside the State of Delaware at such place or places as
may be designated from time to time by the Board of Directors or in the By-Laws
of the Corporation.
ELEVENTH: (A) The Corporation reserves the right to amend, alter,
change or repeal any provision contained in this Certificate of Incorporation,
in the manner now or hereafter prescribed by the General Corporation Law of the
State of Delaware, and all rights conferred upon stockholders herein are granted
subject to this reservation and subject to paragraph (B) below.
(B) The provisions set forth in this Article ELEVENTH and in
Article FIFTH, SIXTH, SEVENTH, EIGHTH, and TENTH (A) of this Certificate of
Incorporation may not be altered, amended or repealed in any respect, and new
provisions inconsistent therewith may not be adopted unless such action is
approved by the affirmative vote of the holders of at least eighty (80%) of all
of the outstanding shares of capital stock of the Corporation entitled to vote
on such matter at a meeting of stockholders called for that purpose, except that
if the Board of Directors, by an affirmative vote of at least sixty-six and
two-thirds (66-2/3%) of the entire Board of Directors, recommends approval of
such amendment to this Certificate of Incorporation to the stockholders, such
approval may be effected by the affirmative vote of the holders of at least a
majority of the outstanding shares of capital stock of the Corporation present
in person or represented by proxy and entitled to vote on such matter at a
meeting of stockholders called for that purpose.
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<PAGE> 16
IN WITNESS WHEREOF, CheckFree Holdings Corporation has caused this
Restated Certificate of Incorporation to be signed by Peter J. Kight, its
President, and attested by Curtis A. Loveland, its Secretary, this 22nd day of
December, 1997.
-----------------------------------
Peter J. Kight, President
Attest:
- -------------------------------
Curtis A. Loveland, Secretary
15
<PAGE> 1
CHECKFREE HOLDINGS CORPORATION
Exhibit 4(c)
<PAGE> 2
BY-LAWS
OF
CHECKFREE HOLDINGS CORPORATION
A DELAWARE CORPORATION
AS OF DECEMBER 15, 1997
<PAGE> 3
TABLE OF CONTENTS
<TABLE>
<S> <C>
ARTICLE I OFFICES................................................................... 1
Section 1. Registered Office........................................................ 1
Section 2. Other Offices............................................................ 1
ARTICLE II MEETINGS OF STOCKHOLDERS.................................................. 1
Section 1. Place.................................................................... 1
Section 2. Annual Meeting........................................................... 1
Section 3. Notice of Annual Meeting................................................. 1
Section 4. List of Stockholders..................................................... 1
Section 5. Special Meetings......................................................... 1
Section 6. Notice of Special Meetings............................................... 2
Section 7. Business at Annual or Special Meetings................................... 2
Section 8. Quorum................................................................... 2
Section 9. Voting Power............................................................. 3
Section 10. Votes; Proxies........................................................... 3
ARTICLE III DIRECTORS................................................................. 3
Section 1. Nominations for Election of Directors.................................... 3
Section 2. Number of Directors...................................................... 4
Section 3. Powers of Board of Directors............................................. 4
Section 4. Place of Meetings........................................................ 4
Section 5. Organizational Meetings.................................................. 5
</TABLE>
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<TABLE>
<S> <C>
Section 6. Regular Meetings......................................................... 5
Section 7. Special Meetings......................................................... 5
Section 8. Quorum................................................................... 5
Section 9. Actions by Unanimous Written Consent..................................... 5
Section 10. Participation by Telephonic Communications............................... 5
Section 11. Designation of Committees................................................ 6
Section 12. Minutes of Committee Meetings............................................ 6
Section 13. Compensation and Expenses of Directors................................... 6
ARTICLE IV NOTICES................................................................... 6
Section 1. Manner of Notices........................................................ 6
Section 2. Waiver of Notices........................................................ 7
ARTICLE V OFFICERS.................................................................. 7
Section 1. Designations of Officers................................................. 7
Section 2. Election of Officers..................................................... 7
Section 3. Other Officers........................................................... 7
Section 4. Salaries of Officers..................................................... 7
Section 5. Terms of Office.......................................................... 7
Section 6. Duties of Chairman of the Board.......................................... 7
Section 7. Authority of Chairman of the Board to Execute Documents.................. 8
Section 8. Duties of the President.................................................. 8
Section 9. Duties of the Vice-Presidents............................................ 8
</TABLE>
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<TABLE>
<S> <C>
Section 10. Duties of the Secretary.................................................. 8
Section 11. Duties of the Assistant Secretary........................................ 8
Section 12. Duties of the Treasurer.................................................. 9
Section 13. Further Duties of the Treasurer.......................................... 9
Section 14. Bond..................................................................... 9
Section 15. Assistant Treasurer...................................................... 9
ARTICLE VI CERTIFICATE OF STOCK...................................................... 9
Section 1. Certificates............................................................. 9
Section 2. Facsimile Signatures..................................................... 9
Section 3. Lost Certificates........................................................ 10
Section 4. Transfer of Stock........................................................ 10
Section 5. Fixing Record Date....................................................... 10
Section 6. Registered Stockholders.................................................. 10
ARTICLE VII GENERAL PROVISIONS; DIVIDENDS............................................. 11
Section 1. Dividend................................................................. 11
Section 2. Reserves................................................................. 11
Section 3. Annual Statement......................................................... 11
Section 4. Checks................................................................... 11
Section 5. Fiscal Year.............................................................. 11
Section 6. Seal..................................................................... 11
ARTICLE VIII AMENDMENTS................................................................ 11
Section 1. Amendments; Approval..................................................... 11
</TABLE>
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<TABLE>
<S> <C>
ARTICLE IX INDEMNIFICATION OF DIRECTORS AND OFFICERS................................. 12
Section 1. Grant of Indemnification................................................. 12
Section 2. Non-Exclusivity.......................................................... 13
Section 3. Burden of Proof.......................................................... 13
Section 4. Advancement of Expenses.................................................. 13
Section 5. Insurance, Contracts, and Funding........................................ 13
Section 6. Severability; Statutory Alternative...................................... 14
Section 7. Procedures; Presumptions, and Effect of Certain Proceedings; Remedies.... 14
Section 8. Definitions.............................................................. 17
Section 9. Acts of Disinterested Directors.......................................... 18
</TABLE>
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ARTICLE I
OFFICES
Section 1. Registered Office. The registered office of the Corporation
shall be in the City of Wilmington, County of New Castle, State of Delaware.
Section 2. Other Offices. The Corporation may also have offices at such
other places both within and without the State of Delaware as the Board of
Directors may from time to time determine or the business of the Corporation may
require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Place. All meetings of the stockholders shall be held at
such place either within or without the State of Delaware as shall be designated
from time to time by the Board of Directors and stated in the notice of the
meeting.
Section 2. Annual Meeting. Annual meetings of stockholders shall be
held on such date and time as shall be designated from time to time by the Board
of Directors and stated in the notice of the meeting, at which they shall elect
a Board of Directors, and transact such other business as may properly be
brought before the meeting.
Section 3. Notice of Annual Meeting. Written notice of the annual
meeting stating the place, date, and hour of the meeting shall be given to each
stockholder entitled to vote at such meeting not less than ten nor more than
sixty days before the date of the meeting.
Section 4. List of Stockholders. The Corporation shall prepare and
make, at least ten days before every meeting of stockholders, a complete list of
the stockholders entitled to vote at the meeting, arranged in alphabetical
order, and showing the address of each stockholder and the number of shares
registered in the name of each stockholder. Such list shall be open to the
examination of any stockholder, for any purpose germane to the meeting, during
ordinary business hours, for a period of at least ten days prior to the meeting,
either at a place within the city where the meeting is to be held, which place
shall be specified in the notice of the meeting, or, if not so specified, at the
Corporation's principal office. The list shall also be produced and kept at the
time and place of the meeting during the whole time thereof and may be inspected
by any stockholder who is present.
Section 5. Special Meetings. Special meetings of the stockholders, for
any purpose or purposes, unless otherwise prescribed by statute or by the
Certificate of Incorporation, may be called by the president and shall be called
by the president or secretary at the request in writing of two-thirds of the
Board of Directors. Such request shall state the purpose or purposes of the
proposed meeting.
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<PAGE> 8
Section 6. Notice of Special Meetings. Written notice of a special
meeting stating the place, date, and hour of the meeting, and the purpose or
purposes for which the meeting is called, shall be given not less than ten nor
more than sixty days before the date of the meeting to each stockholder entitled
to vote at such meeting.
Section 7. Business at Annual or Special Meetings. At an annual or
special meeting of stockholders, only such business shall be conducted, and only
such proposals shall be acted upon, as shall have been properly brought before
such meeting. To be properly brought before a meeting of stockholders, business
must be (i) in the case of an annual meeting, properly brought before the
meeting by or at the direction of the Board of Directors, (ii) in the case of a
special meeting, specified in the notice of the special meeting (or any
supplement thereto) given by or at the direction of the Board of Directors, or
(iii) otherwise properly brought before the meeting by a stockholder and
specified in the notice of the special meeting (or any supplement thereto). For
business to be properly brought before a meeting of stockholders by a
stockholder, the stockholder must have given timely notice thereof in writing to
the Secretary of the Corporation. To be timely, a stockholder's notice must be
delivered to or mailed and received at the principal executive offices of the
Corporation not less than 70 days nor more than 90 days prior to the date of an
annual meeting of stockholders or, if a special meeting, not later than the
close of business on the 7th day following the earlier of (i) the day on which
such notice of the date of the meeting was mailed, or (ii) the day on which
public disclosure of the date of the special meeting was made.
A shareholder's notice to the Secretary shall set forth as to each
matter the stockholder proposes to bring before a meeting of stockholders, (i) a
brief description of the business desired to be brought before the meeting and
the reasons for conducting such business at the meeting, (ii) the name and
address, as they appear on the Corporation's books, of the stockholder proposing
such business and any stockholders known by such stockholder to be supporting
such proposal, (iii) the class and number of shares of the Corporation which are
beneficially owned by the stockholder on the date of such stockholder's notice
and by any other stockholders known by such stockholder to be supporting such
proposal on the date of such stockholder's notice, and (iv) any material
interest of the stockholder in such proposal.
Notwithstanding anything in these By-Laws to the contrary, no business
shall be conducted at a meeting of stockholders except in accordance with the
procedures set forth in this Section 7. The chairman of the stockholder meeting
shall, if the facts warrant, determine and declare to the meeting that the
business was not properly brought before the meeting in accordance with the
procedures prescribed by these By-Laws, and if he should so determine, he shall
so declare to the meeting and any such business not properly brought before the
meeting shall not be transacted.
Section 8. Quorum. The holders of a majority of the stock issued and
outstanding and entitled to vote thereat, present in person or represented by
proxy, shall constitute a quorum at all meetings of the stockholders for the
transaction of business except as otherwise provided by statute or by the
Certificate of Incorporation. If, however, such quorum shall not be present or
represented at any meeting of the stockholders, the stockholders entitled to
vote thereat, present in person or
2
<PAGE> 9
represented by proxy, shall have power to adjourn the meeting from time to time,
without notice other than announcement at the meeting, until a quorum shall be
present or represented. At such adjourned meeting at which a quorum shall be
present or represented any business may be transacted which might have been
transacted at the meeting as originally notified. If the adjournment is for more
than thirty days, or if after the adjournment a new record date is fixed for the
adjourned meeting, a notice of the adjourned meeting shall be given to each
stockholder of record entitled to vote at the meeting.
Section 9. Voting Power. When a quorum is present at any meeting, the
vote of the holders of a majority of the stock having voting power, present in
person or represented by proxy, shall decide any question brought before such
meeting, unless the question is one upon which by express provision of the
statutes or of the Certificate of Incorporation or By-Laws a different vote is
required in which case such express provision shall govern and control the
decision of such question.
Section 10. Votes; Proxies. Unless otherwise provided in the
Certificate of Incorporation, each stockholder shall at every meeting of the
stockholders be entitled to one vote in person or by proxy for each share of the
capital stock having voting power held by such stockholder, but no proxy shall
be voted on after eleven months from its date, unless the proxy provides for a
longer period.
ARTICLE III
DIRECTORS
Section 1. Nominations for Election of Directors. (A) Only persons
nominated in accordance with the procedures set forth in this Section 1 shall be
eligible for election as directors. Nominations of persons for election to the
Board of Directors of the Corporation may be made at a meeting of stockholders
by or at the direction of the Board of Directors or by any stockholder of the
Corporation entitled to vote for the election of directors at such a meeting who
complies with the notice procedures set forth in this Section 1. Such
nominations, other than those made by or at the direction of the Board of
Directors, shall be made pursuant to timely notice in writing to the Secretary
of the Corporation. To be timely, a stockholder's notice must be delivered to or
mailed and received at the principal executive offices of the Corporation not
less than 70 days nor more than 90 days prior to the date of an annual meeting
of stockholders or, if the election of directors is to take place at a special
meeting of stockholders, not later than the close of business on the 7th day
following the earlier of (i) the day on which such notice of the date of the
meeting was mailed or (ii) the day on which public disclosure of the date of the
special meeting was made.
A stockholder's notice to the Secretary shall set forth (i) as to each
person whom the stockholder proposes to nominate for election as a director, (a)
the name, age, business address, and residence address of such person, (b) the
principal occupation or employment of such person, (c) the class and number of
shares of the Corporation which are beneficially owned by such person on the
date of such stockholder's notice, (d) a description of all arrangements or
understandings between
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the person being nominated and the stockholder giving the notice and all other
stockholders known by such stockholder to be supporting the person being
nominated, and (e) any other information relating to such person that is
required to be disclosed in solicitations of proxies for election of directors,
or is otherwise required, in each case pursuant to Regulation 14A under the
Securities and Exchange Act of 1934, as amended, or any successor act or
regulation (including without limitation such person's written consent to being
named in the proxy statement as a nominee and to serving as a director if
elected); and (ii) as to the stockholder giving the notice, (a) the name and
address, as they appear on the Corporation's books, of the stockholder and any
other stockholders known by such stockholder to be supporting such nominees, and
(b) the class and number of shares of the Corporation which are beneficially
owned by such stockholder on the date of such stockholder's notice and by any
other stockholders known by such stockholder to be supporting such nominees on
the date of such stockholder's notice. The Corporation may require any proposed
nominee to furnish such other information as may be reasonably required by the
Corporation to determine the qualifications of such proposed nominee to serve as
a director of the Corporation.
No person shall be eligible for election as a director of the
Corporation unless nominated in accordance with the procedures set forth in this
Section 1; provided, however, that the provisions of this Section 1 shall not
apply to the nomination of any person entitled to be separately elected as a
director by the holders of preferred stock, if any, of the Corporation. The
chairman of the stockholders meeting shall, if the facts warrant, determine and
declare to the meeting that a nomination was not made in accordance with the
procedures prescribed by these By-Laws, and if he should so determine, he shall
so declare to the meeting and the defective nomination shall be disregarded.
(B) At all elections of directors the candidates receiving the greatest
number of votes shall be elected.
Section 2. Number of Directors. The number of directors of the
Corporation shall be not less than three (3) nor more than fifteen (15). The
number of directors shall be as provided from time to time in these By-Laws and
is hereby fixed at seven (7), provided that no amendment to the By-Laws
decreasing the number of directors shall have the effect of shortening the term
of any incumbent director, and provided further that no action shall be taken by
the directors (whether through amendment of these By-Laws or otherwise) to
increase the number of directors as provided in the By-Laws from time to time
unless at least two-thirds (66 2/3%) of the directors then in office shall
concur in that action. Directors need not be stockholders.
Section 3. Powers of Board of Directors. The business of the
Corporation shall be managed by or under the direction of its Board of Directors
which may exercise all such powers of the Corporation and do all such lawful
acts and things as are not by statute or by the Certificate of Incorporation or
by these By-Laws directed or required to be exercised or done by the
stockholders.
Section 4. Place of Meetings. The Board of Directors of the Corporation
may hold meetings, both regular and special, either within or without the State
of Delaware.
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Section 5. Organizational Meetings. The first meeting of each newly
elected Board of Directors shall be held immediately after the annual meeting of
stockholders at the same place as such annual meeting is held and no notice of
such meeting shall be necessary to the newly elected directors in order legally
to constitute the meeting, provided a quorum shall be present. In the event such
meeting is not held at the time and place provided herein, the meeting may be
held at such time and place as shall be specified in a notice given as
hereinafter provided for special meetings of the Board of Directors, or as shall
be specified in a written waiver signed by all of the directors.
Section 6. Regular Meetings. Regular meetings of the Board of Directors
may be held without notice at such time and at such place as shall from time to
time be determined by the Board of Directors.
Section 7. Special Meetings. Special meetings of the Board of Directors
may be called by the chairman of the board or the president and shall be called
by the chairman of the board or the president or the secretary on the written
request of a majority of the directors. Notice of special meetings of the Board
of Directors shall be given to each director (i) in a writing mailed not less
than three days before such meeting addressed to the residence or usual place of
business of a director, (ii) by facsimile or telegram sent not less than two
days before such meeting to the residence or usual place of business of a
director, or (iii) delivered in person or by telephone not less than one day
before such meeting.
Section 8. Quorum. At all meetings of the Board of Directors a majority
of the directors shall constitute a quorum for the transaction of business and
the act of a majority of the directors present at any meeting at which there is
a quorum shall be the act of the Board of Directors, except as may be otherwise
specifically provided by statute or by the Certificate of Incorporation. If a
quorum shall not be present at any meeting of the Board of Directors, the
directors present thereat may adjourn the meeting from time to time, without
notice other than announcement at the meeting, until a quorum shall be present.
Section 9. Actions by Unanimous Written Consent. Unless otherwise
restricted by the Certificate of Incorporation or these By-Laws, any action
required or permitted to be taken at any meeting of the Board of Directors or of
any committee thereof may be taken without a meeting, if all members of the
Board of Directors or committee, as the case may be, consent thereto in writing,
and the writing or writings are filed with the minutes of proceedings of the
Board of Directors or committee.
Section 10. Participation by Telephonic Communications. Unless
otherwise restricted by the Certificate of Incorporation or these By-Laws,
members of the Board of Directors, or any committee designated by the Board of
Directors, may participate in a meeting of the Board of Directors, or any
committee, by means of conference telephone or similar communications equipment
by means of which all persons participating in the meeting can hear each other,
and such participation in a meeting shall constitute presence in person at the
meeting.
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Section 11. Designation of Committees. The Board of Directors may, by
resolution passed by a majority of the whole Board of Directors, designate one
or more committees, each committee to consist of not less than two directors of
the Corporation. The board may designate one or more directors as alternate
members of any committee, who may replace any absent or disqualified member at
any meeting of the committee.
In the absence or disqualification of a member of a committee, the
member or members thereof present at any meeting and not disqualified from
voting, whether or not he or they constitute a quorum, may unanimously appoint
another member of the Board of Directors to act at the meeting in the place of
any such absent or disqualified member.
Any such committee, to the extent provided in the resolution of the
Board of Directors, shall have and may exercise all the powers and authority of
the Board of Directors in the management of the business and affairs of the
Corporation, and may authorize the seal of the Corporation to be affixed to all
papers which may require it; but no such committee shall have the power or
authority in reference to amending the Certificate of Incorporation, adopting an
agreement of merger or consolidation, recommending to the stockholders the sale,
lease, or exchange of all or substantially all of the Corporation's property and
assets, recommending to the stockholders a dissolution of the Corporation or a
revocation of a dissolution; and, unless the resolution or the Certificate of
Incorporation expressly so provide, no such committee shall have the power or
authority to declare a dividend or to authorize the issuance of stock. Such
committee or committees shall have such name or names as may be determined from
time to time by resolution adopted by the Board of Directors.
Section 12. Minutes of Committee Meetings. Each committee shall keep
regular minutes of its meetings and report the same to the Board of Directors
when required.
Section 13. Compensation and Expenses of Directors. Unless otherwise
restricted by the Certificate of Incorporation or these By-Laws, the Board of
Directors shall have the authority to fix the compensation of directors. The
directors may be paid their expenses, if any, of attendance at each meeting of
the Board of Directors and may be paid a fixed sum for attendance at each
meeting of the Board of Directors or a stated salary as director. No such
payment shall preclude any director from serving the Corporation in any other
capacity and receiving compensation therefor. Members of special or standing
committees may be allowed like compensation for attending committee meetings.
ARTICLE IV
NOTICES
Section 1. Manner of Notices. Whenever, under the provisions of the
statutes or of the Certificate of Incorporation or of these By-Laws, notice is
required to be given to any director or stockholder, it shall not be construed
to mean personal notice, but such notice may be given in
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writing, by mail, addressed to such director or stockholder, at his address as
it appears on the records of the Corporation, with postage thereon prepaid, and
such notice shall be deemed to be given at the time when the same shall be
deposited in the United States mail. Notice to directors may also be given by
telegram or telecopy.
Section 2. Waiver of Notices. Whenever any notice is required to be
given under the provisions of the statutes or of the Certificate of
Incorporation or of these By-Laws, a waiver thereof in writing, signed by the
person or persons entitled to such notice, whether before or after the time
stated therein, shall be deemed equivalent thereto.
ARTICLE V
OFFICERS
Section 1. Designations of Officers. The officers of the Corporation
shall be chosen by the Board of Directors and shall be a chairman of the board,
a president, a vice-president, a secretary, and a treasurer. The Board of
Directors may also choose additional vice-presidents (including senior,
executive, or assistant vice-presidents), and one or more assistant secretaries
and assistant treasurers. Any number of offices may be held by the same person,
unless the Certificate of Incorporation or these By-Laws otherwise provides.
Section 2. Election of Officers. The Board of Directors at its first
meeting after each annual meeting of stockholders shall choose a chairman, a
president, one or more vice-presidents, a secretary, and a treasurer.
Section 3. Other Officers. The Board of Directors may appoint such
other officers and agents as it shall deem necessary who shall hold their
offices for such terms and shall exercise such powers and perform such duties as
shall be determined from time to time by the Board of Directors.
Section 4. Salaries of Officers. The salaries of all officers and
agents of the Corporation shall be fixed by the Board of Directors.
Section 5. Terms of Office. The officers of the Corporation shall hold
office until their successors are chosen and qualify. Any officer elected or
appointed by the Board of Directors may be removed at any time by the
affirmative vote of a majority of the Board of Directors. Any vacancy occurring
in any office of the Corporation shall be filled by the Board of Directors.
Section 6. Duties of Chairman of the Board. The chairman of the Board
of Directors shall be the chief executive officer of the Corporation and shall
have general control and management of the business affairs and policies of the
Corporation. He shall be generally responsible for the proper conduct of the
business of the Corporation. During the absence or disability of the president,
he shall exercise all the powers and discharge all the duties of the president.
He shall preside at all meetings of the stockholders and of the Board of
Directors at which he is present; and, in his
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absence, the president shall preside at such meetings. He shall have such other
powers and perform such other duties as from time to time may be conferred or
imposed upon him by the Board of Directors.
Section 7. Authority of Chairman of the Board to Execute Documents. The
chairman of the Board of Directors shall execute bonds, mortgages, and other
contracts requiring a seal, under the seal of the Corporation, except where
required or permitted by law to be otherwise signed and executed and except
where the signing and execution thereof shall be expressly delegated by the
Board of Directors to some other officer or agent of the Corporation.
Section 8. Duties of the President. The president of the Corporation
shall be the principal operating and administrative officer of the Corporation.
If there is no chairman of the board or during the absence or disability of the
chairman of the board, he shall exercise all of the powers and discharge all of
the duties of the chairman of the board. He shall, in the absence of the
chairman of the board, possess power to sign all certificates, contracts, and
other instruments of the Corporation. He shall, in the absence of the chairman
of the board, preside at all meetings of the stockholders and of the Board of
Directors. He shall perform all such other duties as are incident to his office
or are properly required of him by the Board of Directors.
Section 9. Duties of the Vice-Presidents. In the absence of the
president or in the event of his inability or refusal to act, the vice-president
(or in the event there be more than one vice-president, the vice-presidents in
the order designated by the directors, or in the absence of any designation,
then in the order of their election) shall perform the duties of the president,
and when so acting, shall have all the powers of and be subject to all the
restrictions upon the president. The vice-presidents shall perform such other
duties and have such other powers as the Board of Directors may from time to
time prescribe.
Section 10. Duties of the Secretary. The secretary shall attend all
meetings of the Board of Directors and all meetings of the stockholders and
record all the proceedings of the meetings of the Corporation and of the Board
of Directors in a book to be kept for that purpose and shall perform like duties
for the standing committees when required. He shall give, or cause to be given,
notice of all meetings of the stockholders and special meetings of the Board of
Directors, and shall perform such other duties as may be prescribed by the Board
of Directors or chief executive officer, under whose supervision he shall be. He
shall have custody of the corporate seal of the Corporation and he, or an
assistant secretary, shall have authority to affix the same to any instrument
requiring it and when so affixed, it may be attested by his signature or by the
signature of such assistant secretary. The Board of Directors may give general
authority to any other officer to affix the seal of the Corporation and to
attest the affixing by his signature.
Section 11. Duties of the Assistant Secretary. The assistant secretary,
or if there be more than one, the assistant secretaries in the order determined
by the Board of Directors (or if there be no such determination, then in the
order of their election) shall, in the absence of the secretary or in the event
of his inability or refusal to act, perform the duties and exercise the powers
of the secretary
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and shall perform such other duties and have such other powers as the Board of
Directors may from time to time prescribe.
Section 12. Duties of the Treasurer. The treasurer shall have the
custody of the corporate funds and securities and shall keep full and accurate
accounts of receipts and disbursements in books belonging to the Corporation and
shall deposit all moneys and other valuable effects in the name and to the
credit of the Corporation in such depositories as may be designated by the Board
of Directors.
Section 13. Further Duties of the Treasurer. The treasurer shall
disburse the funds of the Corporation as may be ordered by the Board of
Directors, taking proper vouchers for such disbursements, and shall render to
the chairman of the board, president, and the Board of Directors, at its regular
meetings or when the Board of Directors so requires, an account of all his
transactions as treasurer and of the financial condition of the Corporation.
Section 14. Bond. If required by the Board of Directors, the treasurer
shall give the Corporation a bond (which shall be renewed each year) in such sum
and with such surety or sureties as shall be satisfactory to the Board of
Directors for the faithful performance of the duties of his office and for the
restoration to the Corporation, in case of his death, resignation, retirement,
or removal from office, of all books, papers, vouchers, money, and other
property of whatever kind in his possession or under his control belonging to
the Corporation.
Section 15. Assistant Treasurer. The assistant treasurer, or if there
shall be more than one, the assistant treasurers in the order determined by the
Board of Directors (or if there be no such determination, then in the order of
their election) shall, in the absence of the treasurer or in the event of his
inability or refusal to act, perform the duties and exercise the powers of the
treasurer and shall perform such other duties and have such other powers as the
Board of Directors may from time to time prescribe.
ARTICLE VI
CERTIFICATE OF STOCK
Section 1. Certificates. Every holder of stock in the Corporation shall
be entitled to have a certificate, signed by, or in the name of the Corporation
by, the chairman of the board or the president or a vice-president and the
treasurer or an assistant treasurer or the secretary or an assistant secretary
of the Corporation, certifying the number of shares owned by him in the
Corporation.
Section 2. Facsimile Signatures. Any of or all the signatures on the
certificate may be facsimile. In case any officer, transfer agent, or registrar
who has signed or whose facsimile signature has been placed upon a certificate
shall have ceased to be such officer, transfer agent, or registrar before such
certificate is issued, it may be issued by the Corporation with the same effect
as if he were such officer, transfer agent, or registrar at the date of issue.
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Section 3. Lost Certificates. The Board of Directors (through the
Corporation's duly authorized officers) may direct a new certificate or
certificates to be issued in place of any certificate or certificates
theretofore issued by the Corporation alleged to have been lost, stolen, or
destroyed, upon the making of an affidavit of that fact by the person claiming
the certificate of stock to be lost, stolen, or destroyed. When authorizing such
issue of a new certificate or certificates, the Board of Directors (through the
Corporation's duly authorized officers) may, in its discretion and as a
condition precedent to the issuance thereof, require the owner of such lost,
stolen, or destroyed certificate or certificates, or his legal representative,
to advertise the same in such manner as it shall require and/or to give the
Corporation a bond in such sum as it may direct as indemnity against any claim
that may be made against the Corporation with respect to the certificate alleged
to have been lost, stolen, or destroyed.
Section 4. Transfer of Stock. Upon surrender to the Corporation or the
transfer agent of the Corporation of a certificate for shares duly endorsed or
accompanied by proper evidence of succession, assignation, or authority to
transfer, it shall be the duty of the Corporation to issue a new certificate to
the person entitled thereto, cancel the old certificate, and record the
transaction upon its books.
Section 5. Fixing Record Date. In order that the Corporation may
determine the stockholders entitled to notice of or to vote at any meeting of
stockholders or any adjournment thereof, entitled to express consent to
corporate action in writing without a meeting, entitled to receive payment of
any dividend or other distribution or allotment of any rights, entitled to
exercise any rights in respect of any change, conversion, or exchange of stock,
or for the purpose of any other lawful action, the Board of Directors may fix,
in advance, a record date, which shall not precede the date upon which the
resolution fixing the record date is adopted by the Board of Directors and shall
not be more than sixty nor less than ten days before the date of any such
meeting, nor more than sixty days prior to any other action, provided that the
record date to determine stockholders entitled to consent in writing without a
meeting shall be not more than ten days after the date upon which the resolution
fixing the record date is adopted by the Board of Directors. A determination of
stockholders of record entitled to notice of or to vote at a meeting of
stockholders shall apply to any adjournment of the meeting; provided, however,
that the Board of Directors may fix a new record date for the adjourned meeting.
Section 6. Registered Stockholders. The Corporation shall be entitled
to recognize the exclusive right of a person registered on its books as the
owner of shares to receive dividends, and to vote as such owner, and to hold
liable for calls and assessments a person registered on its books as the owner
of shares, and shall not be bound to recognize any equitable or other claim to
or interest in such share or shares on the part of any other person, whether or
not it shall have express or other notice thereof, except as otherwise provided
by the laws of Delaware.
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ARTICLE VII
GENERAL PROVISIONS
DIVIDENDS
Section 1. Dividends. Dividends upon the capital stock of the
Corporation, subject to the provisions of the Certificate of Incorporation, if
any, may be declared by the Board of Directors to the extent permitted by
applicable law then in effect. Dividends may be paid in cash, in property, or in
shares of the capital stock, subject to the provisions of the Certificate of
Incorporation.
Section 2. Reserves. Before payment of any dividend, there may be set
aside out of any funds of the Corporation available for dividends such sum or
sums as the directors from time to time, in their absolute discretion, deem
proper as a reserve or reserves to meet contingencies, or for equalizing
dividends, or for repairing or maintaining any property of the Corporation, or
for such other purpose as the directors shall deem conducive to the interest of
the Corporation, and the directors may modify or abolish any such reserve in the
manner in which it was created.
Section 3. Annual Statement. The Board of Directors shall present at
each annual meeting, and at any special meeting of the stockholders when called
for by vote of the stockholders, a full and clear statement of the business and
condition of the Corporation.
Section 4. Checks. All checks or demands for money and notes of the
Corporation shall be signed by such officer or officers or such other person or
persons as the Board of Directors may from time to time designate.
Section 5. Fiscal Year. The fiscal year of the Corporation shall end on
June 30 of each year, unless otherwised fixed by resolution of the Board of
Directors.
Section 6. Seal. The corporate seal shall have inscribed thereon the
name of the Corporation, the year of its organization and the words "Corporate
Seal, Delaware." The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise.
ARTICLE VIII
AMENDMENTS
Section 1. Amendments; Approval. These By-Laws may be amended or
repealed or new provisions may be adopted by affirmative vote of the holders of
record of shares entitling them to exercise a majority of the voting power on
such proposal or by a majority vote of the Board of Directors when such power is
conferred upon the Board of Directors by the Certificate of Incorporation;
provided, however, that the provisions set forth in this Article VIII, in
Article II, Sections 5, 7, and 8, in Article III, Sections 1 and 2, and in
Article IX herein may not be altered, amended, or repealed in any respect, and
new provisions inconsistent therewith may not be adopted, unless such action is
approved by (i) the affirmative vote of the holders of at least eighty (80%) of
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all of the outstanding shares of capital stock of the Corporation entitled to
vote on such matter at a meeting of stockholders called for that purpose, except
that if the Board of Directors, by an affirmative vote of at least sixty-six and
two-thirds (66-2/3%) of the entire Board of Directors, recommends approval of
such amendment to these By-Laws to the stockholders, such approval may be
effected by the affirmative vote of the holders of at least a majority of the
outstanding shares of capital stock of the Corporation present in person or
represented by proxy and entitled to vote on such matter at a meeting of
stockholders called for that purpose or (ii) by an affirmative vote of at least
sixty-six and two-thirds (66-2/3%) of the entire Board of Directors when such
power is conferred upon the Board of Directors by the Certificate of
Incorporation.
ARTICLE IX
INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 1. Grant of Indemnification. The Corporation shall, to the
fullest extent permitted by applicable law as then in effect, indemnify any
person (the "indemnitee") who was or is involved in any manner (including,
without limitation, as a party or a witness) or was or is threatened to be made
so involved in any threatened, pending, or completed investigation, claim,
action, suit, or proceeding, whether civil, criminal, administrative, or
investigative, including, without limitation, any action or proceeding by or in
the right of the Corporation to procure a judgment in its favor (a
"Proceeding"), by reason of the fact that he is or was a director of the
Corporation, or is or was serving at the request of the Corporation as a
director or officer of another Corporation, or of a partnership, joint venture,
trust, or other enterprise (including, without limitation, service with respect
to any employee benefit plan), whether the basis of any such Proceeding is
alleged action in an official capacity as director or officer or in any other
capacity while serving as a director or officer, against all expenses,
liability, and loss (including, without limitation attorneys' fees, judgments,
fines, ERISA excise taxes or penalties, and amounts paid or to be paid in
settlement) actually and reasonably incurred by him in connection with such
Proceeding. Such indemnification shall continue as to a person who has ceased to
be a director or officer and shall inure to the benefit of his heirs, executors,
administrators, and legal representatives. The right to indemnification
conferred in this Article shall include the right to receive payment of any
expenses incurred by the indemnitee in connection with such Proceeding in
advance of the final disposition of the Proceeding, consistent with applicable
law as then in effect. All rights to indemnification conferred in this Article,
including rights to the advancement of expenses and the evidentiary, procedural,
and other provisions of this Article, shall be contract rights. The Corporation
may, by action of its Board of Directors, provide indemnification for officers,
employees, agents, attorneys, and representatives of the Corporation with up to
the same scope and extent as hereinabove provided for directors. No amendment to
the Certificate of Incorporation or amendment or repeal of the By-Laws having
the effect of modifying or repealing any of the provisions of this Article in a
manner adverse to the indemnitee shall abridge or adversely affect any right to
indemnification or other similar rights and benefits with respect to any acts or
omissions occurring prior to such amendment or repeal. This Article shall be
applicable to all Proceedings, whether arising from acts or omissions occurring
before or after the adoption of this Article.
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Section 2. Non-Exclusivity. The right of indemnification,
including the right to receive payment in advance of expenses, conferred in this
Article shall not be exclusive of any other rights to which any person seeking
indemnification may otherwise be entitled under any provision of the Certificate
of Incorporation, By-Laws, agreement, applicable corporate law and statute, vote
of Disinterested Directors (as hereinafter defined) or stockholders or
otherwise. The indemnitee is free to proceed under any of the rights or
procedures available to him.
Section 3. Burden of Proof. In any determination, review of a
determination, action, arbitration, or other proceeding relating to the right to
indemnification conferred in this Article, the Corporation shall have the burden
of proof that the indemnitee has not met any standard of conduct or belief which
may be required by applicable law to be applied in connection with a
determination that the indemnitee is not entitled to indemnification and also
the burden of proof on any of the issues which may be material to a
determination that the indemnitee is not entitled to indemnification. Neither a
failure to make such a determination of entitlement nor an adverse determination
of entitlement to indemnification shall be a defense of the Corporation in an
action or proceeding brought by the indemnitee or by or on behalf of the
Corporation relating to indemnification or create any presumption that the
indemnitee has not met any such standard of conduct or belief or is otherwise
not entitled to indemnification. If successful in whole or in part in such an
action or proceeding, the indemnitee shall be entitled to be further indemnified
by the Corporation for the expenses actually and reasonably incurred by him in
connection with such action or proceeding.
Section 4. Advancement of Expenses. All reasonable expenses
incurred by or on behalf of the indemnitee in connection with any Proceeding
shall be advanced from time to time to the indemnitee by the Corporation
promptly after the receipt by the Corporation of a statement from the indemnitee
requesting such advance, whether prior to or after final disposition of such
Proceeding.
Section 5. Insurance, Contracts, and Funding. The Corporation may
purchase and maintain insurance to protect itself and any person who is, or may
become an officer, director, employee, agent, attorney, trustee, or
representative (any of the foregoing being herein referred to as a
"Representative") of the Corporation or, at the request of the Corporation, a
Representative of another corporation or entity, against any expenses,
liability, or loss asserted against him or incurred by him in connection with
any Proceeding in any such capacity, or arising out of his status as such,
whether or not the Corporation would have the power to indemnify him against
such expense, liability, or loss under the provisions of this Article or
otherwise. The Corporation may enter into contracts with any Representative of
the Corporation, or any person serving as such at the request of the Corporation
for another corporation or entity, in furtherance of the provisions of this
Article. Such contracts shall be deemed specifically approved and authorized by
the stockholders of the Corporation and not subject to invalidity by reason of
any interested directors. The Corporation may create a trust fund, grant a
security interest, or use other means (including, without limitation, a letter
of credit) to ensure the payment of such amounts as may be necessary to effect
indemnification of any person entitled thereto.
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Section 6. Severability; Statutory Alternative. If any provision
or provisions of this Article shall be held to be invalid, illegal, or
unenforceable for any reason whatsoever, (a) the validity, legality, and
enforceability of all of the remaining provisions of this Article shall not in
any way be affected or impaired thereby; and (b), to the fullest extent
possible, the remaining provisions of this Article shall be construed so as to
give effect to the intent manifested by the provision held invalid, illegal, or
unenforceable. In the event that the indemnitee elects, as an alternative to the
procedures specified in this Article, to follow one of the procedures authorized
by applicable corporate law or statute to enforce his right to indemnification
and notifies the Corporation of his election, the Corporation agrees to follow
the procedure so elected by the indemnitee. If in accordance with the preceding
sentence, the procedure therefor contemplated herein, the procedure elected by
the indemnitee in any specific circumstances or such election by the indemnitee
shall be invalid or ineffective in bringing about a valid and binding
determination of the entitlement of the indemnitee to indemnification, the most
nearly comparable procedure authorized by applicable corporate law or statute
shall be followed by the Corporation and the indemnitee.
Section 7. Procedures; Presumptions, and Effect of Certain
Proceedings; Remedies. In furtherance, but not in limitation, of the foregoing
provisions of this Article, the following procedures, presumptions, and remedies
shall apply with respect to advancement of expenses and the right to
indemnification under this Article:
(a) Advancement of Expenses. The advancement or reimbursement of
expenses to an indemnitee shall be made within 20 days after the receipt by the
Corporation of a request therefor from the indemnitee. Such request shall
reasonably evidence the expenses incurred or about to be incurred by the
indemnitee and, if required by law at the time of such advance, shall include or
be accompanied by an undertaking by or on behalf of the indemnitee to repay the
amounts advanced if it should ultimately be determined that the indemnitee is
not entitled to be indemnified against such expenses.
(b) Procedure for Determination of Entitlement to Indemnification.
(i) To obtain indemnification (except with respect to the
advancement of expenses), an indemnitee shall submit to the President or
Secretary of the Corporation a written request, including such documentation and
information as is reasonably available to the indemnitee and reasonably
necessary to determine whether and to what extent the indemnitee is entitled to
indemnification (the "Supporting Documentation"). The Secretary of the
Corporation shall promptly advise the Board of Directors in writing that the
indemnitee has requested indemnification. The determination of the indemnitee's
entitlement to indemnification shall be made not later than 60 days after
receipt by the Corporation of the written request and Supporting Documentation.
(ii) The indemnitee's entitlement to indemnification
shall be determined in one of the following ways: (A) by a majority vote of the
Disinterested Directors (which term shall mean the Disinterested Director, if
there is only one); (B) by a written opinion of the Independent Counsel (as
hereinafter defined) if (I) a majority of the Disinterested Directors so
directs, (II) there
14
<PAGE> 21
is no Disinterested Director, or (III) a Change of Control (as hereinafter
defined) shall have occurred and the indemnitee so requests, in which case the
Disinterested Directors shall be deemed to have so directed, (C) by the
stockholders of the Corporation (but only if a majority of the Disinterested
Directors determines that the issue of entitlement to indemnification should be
submitted to the stockholders for their determination); or (D) as provided in
subsection 7(c) below.
(iii) In the event the determination of entitlement to
indemnification is to be made by Independent Counsel pursuant to subsection
7(b)(ii), a majority of the Disinterested Directors shall select the Independent
Counsel, but only an Independent Counsel to which the indemnitee does not
reasonably object; provided, however, that if a Change of Control shall have
occurred, the indemnitee shall select such Independent Counsel, but only an
Independent Counsel to which the Board of Directors does not reasonably object.
(c) Presumptions and Certain Proceedings. Except as otherwise
expressly provided in this Article, the indemnitee shall be presumed to be
entitled to indemnification upon submission of a request for indemnification
together with the Supporting Documentation, and thereafter in any determination
or review of any determination, and in any arbitration, proceeding, or
adjudication the Corporation shall have the burden of proof to overcome that
presumption in reaching a contrary determination. In any event, if the person or
persons empowered under subsection 7(b)(ii) of this Article to determine
entitlement to indemnification shall not have been appointed or shall not have
made a determination within 60 days after receipt by the Corporation of the
request therefor together with the Supporting Documentation, the indemnitee
shall be deemed to be entitled to indemnification. In either case, the
indemnitee shall be entitled to such indemnification, unless (i) the indemnitee
misrepresented or failed to disclose a material fact in making the request for
indemnification or in the Supporting Documentation or (ii) such indemnification
is prohibited by law, in either case as finally determined by adjudication or,
at the indemnitee's sole option, arbitration (as provided in Subsection 7(d) of
this Article). The termination of any Proceeding, or of any claim, issue, or
matter therein, by judgment, order, settlement, or conviction, or upon a plea of
nolo contendere or its equivalent, shall not, of itself, adversely affect the
right of the indemnitee to indemnification or create any presumption with
respect to any standard of conduct or belief or any other matter which might
form a basis for a determination that the indemnitee is not entitled to
indemnification. With regard to the right to indemnification for expenses, (A)
if and to the extent that the indemnitee has been successful on the merits or
otherwise in any Proceeding, or (B) if a Proceeding was terminated without a
determination of liability on the part of the indemnitee with respect to any
claim, issue, or matter therein or without any payments in settlement or
compromise being made by the indemnitee with respect to a claim, issue, or
matter therein, or (C) if and to the extent that the indemnitee was not a party
to the Proceeding, the indemnitee shall be deemed to be entitled to
indemnification, which entitlement shall not be defeated or diminished by
any/determination which may be made pursuant to clauses (A), (B), or (C) of
subsection 7(b)(ii) of this Article.
15
<PAGE> 22
(d) Remedies of Indemnitee.
(i) In the event that a determination is made pursuant to
subsection 7(b) of this Article that the indemnitee is not entitled to
indemnification under this Article, (A) the indemnitee shall be entitled to seek
an adjudication of his entitlement to such indemnification either, at the
indemnitee's sole option, in (I) an appropriate court of the State of Delaware
or any other court of competent jurisdiction or (II) to the extent consistent
with law, arbitration to be conducted by three arbitrators (or, if the dispute
involves less than $100,000, by a single arbitrator) pursuant to the rules of
the American Arbitration Association; (B) any such judicial Proceeding or
arbitration shall be de novo and the indemnitee shall not be prejudiced by
reason of such adverse determination; and (C) in any such judicial Proceeding or
arbitration the Corporation shall have the burden of proof that the indemnitee
is not entitled to indemnification under this Article.
(ii) If a determination shall have been made or deemed to
have been made, pursuant to subsection 7(b) or 7(c) of this Article, that the
indemnitee is entitled to indemnification, the Corporation shall be obligated to
pay the amounts constituting such indemnification within five days after such
determination has been made or deemed to have been made and shall be
conclusively bound by such determination, unless (A) the indemnitee
misrepresented or failed to disclose a material fact in making the request for
indemnification or in the Supporting Documentation or (B) such indemnification
is prohibited by law, in either case as finally determined by adjudication or,
at the indemnitee's sole option, arbitration (as provided in subsection 7(d)(i)
of this Article). In the event that (I) advancement of expenses is not timely
made by the Corporation pursuant to this Article or (II) payment of
indemnification is not made within five days after a determination of
entitlement to indemnification has been made or deemed to have been made
pursuant to subsection 7(b) or 7(c) of this Article, the indemnitee shall be
entitled to seek judicial enforcement of the Corporation's obligations to pay to
the indemnitee such advancement of expense of indemnification. Notwithstanding
the foregoing, the Corporation may bring an action, in an appropriate court in
the State of Delaware or any other court of competent jurisdiction, contesting
the right of the indemnitee to receive indemnification hereunder due to the
occurrence of a circumstance described in subclause (A) of this subsection
7(d)(ii) or a prohibition of law (both of which are herein referred to as a
"Disqualifying Circumstance"). In either instance, if the indemnitee shall
elect, at his sole option, that such dispute shall be determined by arbitration
(as provided in subsection 7(d)(i) of this Article), the indemnitee and the
Corporation shall submit the controversy to arbitration. In any such enforcement
action or other proceeding whether brought by the indemnitee or the Corporation,
the indemnitee shall be entitled to indemnification unless the Corporation can
satisfy the burden of proof that indemnification is prohibited by reason of a
Disqualifying Circumstance.
(iii) The Corporation shall be precluded from asserting
in any judicial proceeding or arbitration commenced pursuant to this subsection
7(d) that the procedures and presumptions of this Article are not valid,
binding, and enforceable and shall stipulate in any such court or before any
such arbitrator or arbitrators that the Corporation is bound by all of the
provisions of this Article.
16
<PAGE> 23
(iv) In the event that the indemnitee, pursuant to this
Article, seeks a judicial adjudication of or an award in arbitration to enforce
his rights under, or to recover damages for breach of, this Article, or is
otherwise involved in any adjudication or arbitration with respect to his right
to indemnification, the indemnitee shall be entitled to recover from the
Corporation, and shall be indemnified by the Corporation against, any expenses
actually and reasonably incurred by him if the indemnitee prevails in such
adjudication or arbitration. If it shall be determined in such adjudication or
arbitration that the indemnitee is entitled to receive part but not all of the
indemnification or advancement of expenses sought, the expenses incurred by the
indemnitee in connection with such adjudication or arbitration shall be prorated
accordingly.
Section 8. Definitions. For purposes of indemnification under this
Article or otherwise the following terms shall have the respective meanings
ascribed to such terms:
"Change in Control" means a change in control of the Corporation
of a nature that would be required to be reported in response to Schedule 14A of
Regulation 14A promulgated under the Securities Exchange Act of 1934 (the
"Act"), whether or not the Corporation is then subject to such reporting
requirement; provided that, without limitation, such a change in control shall
be deemed to have occurred if (a) any "person" (as such term is used in Sections
13(d) and 14(d) of the Act) is or becomes the "beneficial owner" (as defined in
Rule 13d-3 under the Act), directly or indirectly, of securities of the
Corporation representing 20 percent or more of the combined voting power of the
Corporation's then outstanding securities without the prior approval of at least
two-thirds of the members of the Board of Directors in office immediately prior
to such acquisition; (b) the Corporation is a party to a merger, consolidation,
sale of assets, or other reorganization, or a proxy contest, as a consequence of
which members of the Board of Directors in office immediately prior to such
transaction or event constitute less than a majority of the Board of Directors
thereafter; or (c) during any period of two consecutive years, individuals who
at the beginning of such period constituted the Board of Directors (including
for this purpose any new director whose election or nomination for election by
the Corporation's stockholders was approved by a vote of at least two-thirds of
the directors then still in office who were Directors at the beginning of such
period) cease for any reason to constitute at least a majority of the Board of
Directors.
"Disinterested Director" means a director of the Corporation who
is not or was not a material party to the Proceeding in respect of which
indemnification is sought by the indemnitee.
"Independent Counsel" means a law firm or a member of a law firm
that neither presently is, nor in the past five years has been, retained to
represent: (a) the Corporation or the indemnitee in any matter or (b) any other
party to the Proceeding giving rise to a claim for indemnification under this
By-Law. Notwithstanding the foregoing, the term "Independent Counsel" shall not
include any person who, under the applicable standards of professional conduct
then prevailing under the law of the State of Delaware, would have a conflict of
interest in representing either the Corporation or the indemnitee in an action
to determine the indemnitee's rights under this Article.
17
<PAGE> 24
Section 9. Acts of Disinterested Directors. Disinterested
Directors considering or acting on any indemnification matter under this Article
or under governing corporate law or otherwise may consider or take action as the
Board of Directors or may consider or take action as a committee or individually
or otherwise. In the event that Disinterested Directors consider or take action
as the Board of Directors, one-third of the total number of directors in office
shall constitute a quorum.
Dated: December 15, 1997 CHECKFREE HOLDINGS CORPORATION
By: /s/ Peter J. Kight
---------------------------------
Peter J. Kight, President and
Chief Executive Officer
18
<PAGE> 1
CHECKFREE HOLDINGS CORPORATION
Exhibit 5
<PAGE> 2
PORTER, WRIGHT, MORRIS & ARTHUR
41 South High Street
Columbus, Ohio 43215
(614) 227-2096
January 5, 1998
CheckFree Holdings Corporation
4411 East Jones Bridge Road
Norcross, Georgia 30092
Re: Post-Effective Amendment No. 1 to Registration Statement on
Form S-8 CheckFree Holdings Corporation Amended and Restated
1995 Stock Option Plan, as amended (the "Plan")
Gentlemen:
We have acted as counsel for CheckFree Holdings Corporation, a Delaware
corporation ("CheckFree"), in connection with the preparation of Post-Effective
Amendment No. 1 to the Registration Statement on Form S-8 (Registration No.
33-98446) (the "Registration Statement"), filed by CheckFree with the Securities
and Exchange Commission under the Securities Act of 1933, as amended (the
"Act"), with respect to the adoption of the Plan by CheckFree, pursuant to Rule
414 of the Act, as a successor issuer of CheckFree Corporation.
In connection with this opinion, we have examined such corporate
records, documents and other instruments of CheckFree as we have deemed
necessary.
Based on the foregoing, we are of the opinion that the shares issued
under the Plan will, when issued and paid for in accordance with the provisions
of the Plan, be legally issued, fully paid and nonassessable, and entitled to
the benefits of the Plan.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ Porter, Wright, Morris & Arthur
PORTER, WRIGHT, MORRIS & ARTHUR
<PAGE> 1
CHECKFREE HOLDINGS CORPORATION
Exhibit 23(b)
<PAGE> 2
EXHIBIT 23(b)
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in Post-Effective Amendment No. 1
to Registration Statement No. 33-98446 of CheckFree Holdings Corporation on Form
S-8 of our report dated August 8, 1997, except for Note 17 as to which date is
August 29, 1997, appearing in the Annual Report on Form 10-K of CheckFree
Holdings Corporation, as successor issuer to CheckFree Corporation, for the year
ended June 30, 1997.
/s/ Deloitte & Touche LLP
Atlanta, Georgia
January 5, 1998
<PAGE> 1
CHECKFREE HOLDINGS CORPORATION
Exhibit 24
<PAGE> 2
POWER OF ATTORNEY
Each of the undersigned officers and directors of CheckFree Holdings
Corporation (the "Corporation") hereby appoints Peter J. Kight, Mark A. Johnson,
and Curtis A. Loveland as his true and lawful attorneys-in-fact, or any of them,
with power to act without the others, as his true and lawful attorney-in-fact,
in his name and on his behalf, and in any and all capacities stated below, to
sign and to cause to be filed with the Securities and Exchange Commission (the
"Commission"), the Corporation's Post-Effective Amendment No. 1 to the
Registration Statements on Form S-8 (the "Registration Statement"), pursuant to
Rule 414 of the Securities Act of 1933, as amended (the "Securities Act"), for
the purpose of adopting the predecessor corporation's registration statements on
Form S-8 filed with the Securities and Exchange Commission on October 20, 1995
and February 14, 1997, as amended (Registration Nos. 33-98446 and 333-21799),
registering under the Securities Act 2,630,700 and 2,369,300 authorized and
unissued shares of the Common Stock, $.01 par value, of the Corporation,
respectively, to be sold and distributed by the Corporation pursuant the
Corporation's 1995 Amended and Restated Stock Option Plan (the "Plan") and such
other number of shares as may be issued under the anti-dilution provisions of
the Plan, and any and all amendments, including post-effective amendments, to
the Registration Statement, hereby granting to such attorneys in fact, and to
each of them, full power and authority to do and perform in the name and on
behalf of each of the undersigned, and in any and all such capacities, every act
and thing whatsoever necessary to be done in and about the premises as fully as
the undersigned could or might do in person, hereby granting to such
attorney-in-fact full power of substitution and revocation, and hereby ratifying
all that any such attorney-in-fact or his substitute may do by virtue hereof.
IN WITNESS WHEREOF, the undersigned have signed these presents this
22nd day of December, 1997.
/s/ Peter J. Kight Chairman of the Board of Directors, President
- ----------------------- and Chief Executive Officer
Peter J. Kight
/s/ Mark A. Johnson Vice Chairman, Corporate Development and Marketing,
- ----------------------- Director
Mark A. Johnson
/s/ James S. Douglass Executive Vice President, Chief Financial Officer
- ----------------------- and Treasurer
James S. Douglass
/s/ Gary A. Luoma, Jr. Vice President, Chief Accounting Officer and
- ----------------------- Assistant Secretary
Gary A. Luoma, Jr.
/s/ George R. Manser Director
- -----------------------
George R. Manser
/s/ Eugene F. Quinn Director
- -----------------------
Eugene F. Quinn
/s/ Jeffrey M. Wilkins Director
- -----------------------
Jeffrey M. Wilkins
/s/ William P. Boardman Director
- -----------------------
William P. Boardman
