EXHIBIT 10.33
SECOND AMENDMENT
TO
RETENTION
AGREEMENT
This SECOND AMENDMENT TO RETENTION
AGREEMENT (the “Second Amendment”) is dated as of
December 22, 2008 between CheckFree Corporation, a Delaware
corporation (the “Company”) and Peter J. Kight
(“Executive”).
WHEREAS , Executive and Company have previously entered
into that certain Retention Agreement dated as of July 27,
2007, and amended as of August 2, 2007 (the
“Agreement”); and
WHEREAS , the parties desire to enter into this Second
Amendment to revise the terms of the Agreement to comply with
Section 409A of the Internal Revenue Code of 1986, as amended,
and guidance promulgated thereunder
(“Section 409A”);
NOW, THEREFORE
, in consideration of the foregoing,
the mutual covenants and agreements of the parties contained herein
and other good and valuable consideration, the receipt of which is
hereby acknowledged, the parties hereto agree as
follows:
1. Section 11(b) is
hereby amended in its entirety to read as follows:
(b) Subject
to the provisions of Section 11(c), all determinations
required to be made under this Section 11, including whether
and when a Gross-Up Payment is required and the amount of such
Gross-Up Payment and the assumptions to be used in arriving at such
determination, shall be made by a nationally recognized accounting
firm selected by the Company and reasonably acceptable to the
Executive (the “Accounting Firm”) which shall provide
detailed supporting calculations both to the Company and Executive
within 15 business days of the receipt of notice from
Executive that there has been a Payment, or such earlier time as is
requested by the Company. In the event that the Accounting Firm is
serving as accountant or auditor for the individual, entity or
group effecting the Change in Control, Executive shall appoint
another nationally recognized accounting firm to make the
determinations required hereunder (which accounting firm shall then
be referred to as the Accounting Firm hereunder). All fees and
expenses of the Accounting Firm shall be borne solely by the
Company. Any Gross-Up Payment, as determined pursuant to this
Section 11, shall be paid by the Company to Executive at the
same time as the Company pays to the Executive the Severance
Payment, provided, however, if prior to such date the
Executive is required to remit the Excise Tax to the Internal
Revenue Service, then upon written notice by the Executive to the
Company, the Company shall promptly reimburse the Executive for the
Gross-Up Payment attributable to such Excise Tax payment (but based
upon Executive’s actual rate of taxation), but no later than
December 31 of the year after the year in which Executive
remits the Excise Tax. Any determination by the Accounting Firm
shall be binding upon the Company and Executive. As a result of the
uncertainty in the application of Section 4999 of the Code at
the time of the initial determination by the Accounting Firm
hereunder, it is possible that Gross-Up Payments which will not
have been made by the Company should have been made
(“Underpayment”), consistent with the calculations
required to be made hereunder.
In the event that the Company exhausts its
remedies pursuant to Section 11(c) and Executive thereafter is
required to remit any Excise Tax to the Internal Revenue Service,
the Accounting Firm shall determine the amount of the Underpayment
that has occurred and any such Underpayment shall be promptly
paid by the Company to or for the benefit of Executive, but no
later than December 31 of the year after the year in which
Executive remits the Excise Tax .
2. Section 11(c) is
hereby amended in its entirety to read as follows:
(c) Executive
shall notify the Company in writing of any claim by the Internal
Revenue Service that, if successful, would require the payment by
the Company
