EXHIBIT 10.1
COMPANY VOTING AGREEMENT
THIS VOTING AGREEMENT (this "AGREEMENT") is made and entered into as of
December 14, 2006 by and between Intuit Inc., a Delaware corporation ("PARENT"),
and the undersigned stockholder (the "STOCKHOLDER") of Electronic Clearing
House, Inc., a Nevada corporation (the "COMPANY").
RECITALS:
A. Parent, the Company and Merger Sub have entered into an Agreement
and Plan of Merger (the "MERGER AGREEMENT"), which provides for the merger (the
"MERGER") of Merger Sub with and into the Company, pursuant to which all
outstanding capital stock of the Company will be converted into the right to
receive a cash payment, as set forth in the Merger Agreement.
B. The Stockholder is the beneficial owner (as defined in Rule 13d-3
under the Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT")) of
such number of shares of the outstanding capital stock of the Company, and such
number of shares of capital stock of the Company issuable upon the exercise of
outstanding options and warrants, as is indicated on the signature page of this
Agreement.
C. In consideration of the execution of the Merger Agreement by Parent,
the Stockholder (in his or her capacity as such) has agreed to vote the Shares
(as defined below) so as to facilitate consummation of the Merger.
NOW, THEREFORE, intending to be legally bound hereby, the parties
hereto hereby agree as follows:
1. CERTAIN DEFINITIONS. Capitalized terms used but not defined herein
shall have the respective meanings ascribed thereto in the Merger Agreement. For
all purposes of and under this Agreement, the following terms shall have the
following respective meanings:
(a) "EXPIRATION DATE" shall mean the earlier to occur of (i)
such date and time as the Merger Agreement shall have been validly
terminated pursuant to its terms, or (ii) such date and time as the
Merger shall become effective in accordance with the terms and
conditions set forth in the Merger Agreement.
(b) "PERSON" shall mean any individual, corporation (including
any not-profit corporation), general partnership, limited partnership,
limited liability partnership, joint venture, estate, limited liability
company, trust, company (including any limited liability company or
joint stock company), association, organization, entity, or
governmental authority.
(c) "SHARES" shall mean: (i) all securities of the Company
(including all shares of capital stock of the Company and all options,
warrants and other rights to acquire shares of capital stock of the
Company) owned by the Stockholder as of the date of this Agreement, and
(ii) all
additional securities of the Company (including all additional shares
of capital stock of the Company and all additional options, warrants
and other rights to acquire shares of capital stock of the Company) of
which the Stockholder acquires beneficial ownership during the period
commencing with the execution and delivery of this Agreement until the
Expiration Date.
(d) TRANSFER. A person shall be deemed to have effected a
"TRANSFER" of a security if such person directly or indirectly (i)
sells, pledges, encumbers, grants an option with respect to,
establishes an open "put equivalent position" within the meaning of
Rule 16a-h under the Exchange Act, transfers or otherwise disposes of
such security or any interest therein (including the economic
consequences of ownership), or (ii) enters into an agreement or
commitment providing for the sale of, pledge of, encumbrance of, grant
of an option with respect to, establishment of a "put equivalent
position" with respect to, transfer of or other disposition of such
security or any interest therein (including the economic consequences
of ownership).
2. TRANSFER OF SHARES.
(a) TRANSFER OF SHARES. The Stockholder hereby agrees that, at
all times during the period commencing with the execution and delivery
of this Agreement until the Expiration Date, the Stockholder shall not
cause or permit any Transfer of any of the Shares to be effected or
make any offer regarding any Transfer of any of the Shares; PROVIDED,
HOWEVER, that the Stockholder may Transfer Shares to a family member or
trust for estate planning purposes, provided that, as a condition to
any such Transfer to a family member or trust, the transferee has
agreed with Parent in writing to be bound by the terms of this
Agreement (including granting a Proxy as contemplated hereby) and to
hold such Shares subject to all the terms and provisions of this
Agreement.
(b) TRANSFER OF VOTING RIGHTS. The Stockholder hereby agrees
that, at all times commencing with the execution and delivery of this
Agreement until the Expiration Date, the Stockholder shall not deposit,
or permit the deposit of, any Shares in a voting trust, grant any proxy
in respect of the Shares, or enter into any voting agreement or similar
arrangement, commitment or understanding in a manner inconsistent with
the terms of SECTION 3 hereof or otherwise in contravention of the
obligations of the Stockholder under this Agreement, with respect to
any of the Shares.
3. AGREEMENT TO VOTE SHARES. Until the Expiration Date, at every
meeting of stockholders of the Company called with respect to any of the
following, and at every adjournment or postponement thereof, and on every action
or approval by written consent of stockholders of the Company with respect to
any of the following, the Stockholder shall vote, to the extent not voted by the
person(s) appointed under the Proxy (as defined in SECTION 4 hereof), the
Shares:
(a) in favor of approval of the Merger;
(b) against approval of any proposal made in opposition to, or
in competition with, consummation of the Merger and the transactions
contemplated by the Merger Agreement, and against any action or
agreement that would result in a breach of any representation,
warranty, covenant, agreement or other obligation of the Company in the
Merger Agreement; and
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(c) against any Acquisition Proposal or (other than those
actions that relate to the Merger and the transactions contemplated by
the Merger Agreement) any other: (A) merger, consolidation, business
combination, sale of assets, reorganization or recapitalization of the
Company or any subsidiary of the Company with any party, (B) sale,
lease or transfer of any significant part of the assets of the Company
or any subsidiary of the Company, (C) reorganization, recapitalization,
dissolution, liquidation or winding up of the Company or any subsidiary
of the Company, (D) material change in the capitalization of the
Company or any subsidiary of the Company, or the corporate structure of
the Company or any subsidiary of the Company, or (E) action that is
intended, or could reasonably be expected to, impede, interfere with,
delay, postpone, discourage or adversely affect the Merger or any of
the other transactions contemplated by the Merger Agreement.
4. IRREVOCABLE PROXY. Concurrently with the execution of this
Agreement, the Stockholder agrees to deliver to Parent a proxy in the form
attached hereto as EXHIBIT A (the "PROXY"), which shall be irrevocable to the
fullest extent permissible by applicable law, with respect to the Shares.
5. NO SOLICITATION. The Stockholder hereby represents and warrants that
he or she has read Section 5.4 of the Merger Agreement and agrees to be bound by
the provisions of such section.
6. REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDER. The Stockholder
hereby represents and warrants to Parent that, as of the date hereof and at all
times until the Expiration Date, (i) the Stockholder is (and will be) the
beneficial owner of the shares of capital stock of the Company, and the options,
warrants and other rights to purchase shares of capital stock of the Company,
set forth on signature page of this Agreement, with full power to vote or direct
the voting of the Shares for and on behalf of all beneficial owners of the
Shares; (ii) the Shares are (and will be) free and clear of any liens, pledges,
security interests, claims, options, rights of first refusal, co-sale rights,
charges or other encumbrances of any kind or nature (each an "ENCUMBRANCE");
(iii) the Stockholder does not as of the date of this Agreement beneficially own
any securities of the Company other than the shares of capital stock of the
Company, and options, warrants and other rights to purchase shares of capital
stock of the Company, set forth on the signature page of this Agreement; (iv)
the Stockholder has (and will have) full power and authority to make, enter into
and carry out the terms of this Agreement and the Proxy; (v) the Stockholder
agrees that it will not bring, commence, institute, maintain, prosecute,
participate in or voluntarily aid any action, claim, suit or cause of action, in
law or in equity, in any court or before any governmental entity, which (a)
challenges the validity of or seeks to enjoin the operation of any provision of
this Agreement or (b) alleges that the execution and delivery of this Agreement
by the Stockholder, either alone or together with the other Company voting
agreements and proxies to be delivered in connection with the execution of the
Merger Agreement, or the approval of the Merger Agreement by the board of
directors of the Company, breaches any fiduciary duty of the board of directors
of the Company or any member thereof; (vi) the execution, delivery and
performance of this Agreement by the Stockholder and the proxy contained herein
does not violate or breach, and will not give rise to any violation or breach
of, the Stockholder's certificate of formation or limited liability company
agreement or other organizational documents (if the Stockholder is not an
individual), or any law, contract, instrument, arrangement or agreement by which
such Stockholder is bound; (vii) this Agreement has been duly executed by the
Stockholder and constitutes the valid and legally binding obligation of the
Stockholder, enforceable against the Stockholder in accordance with its terms,
except to the extent that the enforceability thereof may be limited by
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bankruptcy, insolvency, moratorium or other similar laws relating to creditors'
rights and general principles of equity and the availability of equitable
remedies may be limited by equitable principles of general applicability; and
(viii) the execution, delivery and performance of this Agreement and the proxy
contained herein do not, and performance of this Agreement will not, require any
consent, approval, authorization or permit of, or filing with or notification
to, any governmental or regulatory authority (other than any necessary filing
under the Exchange Act), domestic or foreign.
7. CONSENT AND WAIVER. The Stockholder (not in his or her capacity as a
director or officer of the Company) hereby gives any consents or waivers that
are reasonably required for the consummation of the Merger under the terms of
any agreements to which the Stockholder is a party, or pursuant to any rights
Stockholder may have. The Stockholder further consents and authorizes Parent and
Company to publish and disclose in the Proxy Statement (including all documents
filed with the SEC in connection therewith) its identity and ownership of the
Shares and the nature of its commitments, arrangements and understandings under
this Agreement.
8. LEGENDING OF SHARES. If so requested by Parent, the Stockholder
hereby agrees that the Shares shall bear a legend stating that they are subject
to this Agreement and to an irrevocable proxy.
9. TERMINATION. This Agreement shall terminate and be of no further
force or effect as of the Expiration Date.
10. APPRAISAL RIGHTS. The Stockholder irrevocably waives and agrees not
to exercise any rights (including, without limitation, under Sections 92A.300
through 92A.500 of the Nevada Revised Statutes) to demand appraisal of any of
the Shares which may arise with respect to the Merger.
11. MISCELLANEOUS.
(a) WAIVER. No waiver by any party hereto of any condition or
any breach of any term or provision set forth in this Agreement shall
not be effective unless in writing and signed by each party hereto. The
waiver of a condition or any breach of any term or provision of this
Agreement shall not operate as or be construed to be a waiver of any
other previous or subsequent breach of any term or provision of this
Agreement. Any such waiver shall not be applicable or have any effect
except in the specific instance in which it is given.
(b) SEVERABILITY. In the event that any term, provision,
covenant or restriction set forth in this Agreement, or the application
of any such term, provision, covenant or restriction to any person,
entity or set of circumstances, shall be determined by a court of
competent jurisdiction to be invalid, unlawful, void or unenforceable
to any extent, the remainder of the terms, provisions, covenants and
restrictions set forth in this Agreement, and the application of such
terms, provisions, covenants and restrictions to persons, entities or
circumstances other than those as to which it is determined to be
invalid, unlawful, void or unenforceable, shall remain in full force
and effect, shall not be impaired, invalidated or otherwise affected
and shall continue to be valid and enforceable to the fullest extent
permitted by applicable law.
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(c) BINDING EFFECT; ASSIGNMENT. This Agreement and all of the
terms and provisions hereof shall be binding upon, and inure to the
benefit of, the parties hereto and their respective successors and
permitted assigns, but, except as otherwise specifically provided
herein, neither this Agreement nor any of the rights, interests or
obligations of the Stockholder may be assigned to any other person
without the prior written consent of Parent.
(d) AMENDMENTS. This Agreement may not be modified, amended,
altered or supplemented, except upon the execution and delivery of a
written agreement executed by each of the parties hereto.
(e) SPECIFIC PERFORMANCE; INJUNCTIVE RELIEF. Each of the
parties hereto hereby acknowledge that (i) the representations,
warranties, covenants and restrictions set forth in this Agreement are
necessary, fundamental and required for the protection of Parent and to
preserve for Parent the benefits of the Merger; (ii) such covenants
relate to matters which are of a special, unique, and extraordinary
character that gives each such representation, warranty, covenant and
restriction a special, unique, and extraordinary value; and (iii) a
breach of any such representation, warranty, covenant or restriction,
or any other term or provision of this Agreement, will result in
irreparable harm and damages to Parent which cannot be adequately
compensated by a monetary award. Accordingly, Parent and the
Stockholder hereby expressly agree that in addition to all other
remedies available at law or in equity, Parent shall be entitled to the
immediate remedy of specific performance, a temporary and/or permanent
restraining order, preliminary injunction, or such other form of
injunctive or equitable relief as may be used by any court of competent
jurisdiction to restrain or enjoin any of the parties hereto from
breaching any representations, warranties, covenants or restrictions
set forth in this Agreement, or to specifically enforce the terms and
provisions hereof.
(f) GOVERNING LAW. This Agreement shall be governed by and
construed, interpreted and enforced in accordance with the laws of the
State of New York without giving effect to any choice or conflict of
law provision, rule or principle (whether of the State of New York or
any other jurisdiction) that would cause the application of the laws of
any jurisdiction other than the State of New York.
(g) ENTIRE AGREEMENT. This Agreement and the Proxy and the
other agreements referred to in this Agreement set forth the entire
agreement and understanding of Parent and the Stockholder with respect
to the subject matter hereof and thereof, and supersede all prior
discussions, agreements and understandings between Parent and the
Stockholder, both oral and written, with respect to the subject matter
hereof and thereof.
(h) NOTICES. All notices and other communications pursuant to
this Agreement shall be in writing and deemed to be sufficient if
contained in a written instrument and shall be deemed given if
delivered personally, telecopied, sent by nationally-recognized
overnight courier or mailed by registered or certified mail (return
receipt requested), postage prepaid, to the respective parties at the
following address (or at such other address for a party as shall be
specified by like notice):
If to Parent: Intuit Inc.
0000 Xxxxxx Xxx
Xxxxxxxx Xxxx, XX 00000
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Attention: General Counsel
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
with a copy to: O'Melveny & Xxxxx LLP
Embarcadero Center West
000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxx, Esq.
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
If to the Stockholder: To the address for notice set forth on
the signature page hereof.
(i) FURTHER ASSURANCES. The Stockholder (in his or her
capacity as such) shall execute and deliver any additional certificate,
instruments and other documents, and take any additional actions, as
Parent may deem necessary or desirable, in the reasonable opinion of
Parent, to carry out and effectuate the purpose and intent of this
Agreement.
(j) HEADINGS. The section headings set forth in this Agreement
are for convenience of reference only and shall not affect the
construction or interpretation of this Agreement in any manner.
(k) COUNTERPARTS. This Agreement may be executed in several
counterparts, each of which shall be deemed an original, and all of
which together shall constitute one and the same instrument.
(l) RULES OF CONSTRUCTION. The parties hereto agree that they
have been represented by counsel during the negotiation and execution
of this Agreement and, therefore, waive the application of any law,
regulation, holding or rule of construction providing that ambiguities
in an agreement or other document will be construed against the party
drafting such agreement or document.
(m) EXPENSES. All costs and expenses incurred in connection
with this Agreement shall be paid by the party incurring such cost or
expense.
(n) WAIVER OF JURY TRIAL. Each of Parent, Company and
Stockholder hereby irrevocably waives all right to trial by jury in any
action, proceeding or counterclaim (whether based on contract, tort or
otherwise) arising out of or relating to this agreement.
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IN WITNESS WHEREOF, the undersigned have caused this Agreement to be
duly executed as of the date first written above.
INTUIT INC.
By:
-------------------------------------------
Signature of Authorized Signatory
Name:
-------------------------------------------
Title:
------------------------------------------
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STOCKHOLDER:
By:
-------------------------------------------
Signature
Name:
Title:
------------------------------------------
Print Address
Telephone
Facsimile No.
Shares beneficially owned:
__________ shares of Company capital stock
__________ shares of Company capital stock
issuable upon the exercise of outstanding
options, warrants or other rights
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EXHIBIT A
IRREVOCABLE PROXY
The undersigned stockholder of Electronic Clearing House, Inc., a
Nevada corporation (the "COMPANY"), hereby irrevocably (to the fullest extent
permitted by law) appoints the directors of the Board of Directors of Intuit
Inc., a Delaware corporation ("PARENT"), and each of them, as the sole and
exclusive attorneys-in-fact and proxies of the undersigned, with full power of
substitution and resubstitution, to vote and exercise all voting and related
rights (to the full extent that the undersigned is entitled to do so) with
respect to all of the shares of capital stock of the Company that now are or
hereafter may be beneficially owned by the undersigned, and any and all other
shares or securities of the Company issued or issuable in respect thereof on or
after the date hereof (collectively, the "SHARES") in accordance with the terms
of this irrevocable proxy (the "PROXY"). The Shares beneficially owned by the
undersigned stockholder of the Company as of the date of this Proxy are listed
on the final page of this Proxy. Upon the execution of this Proxy by the
undersigned, any and all prior proxies given by the undersigned with respect to
any Shares are hereby revoked and the undersigned hereby agrees not to grant any
subsequent proxies with respect to the Shares until after the Expiration Date
(as defined below).
This Proxy is irrevocable (to the fullest extent permitted by law), is
coupled with an interest and is granted pursuant to that certain Voting
Agreement of even date herewith by and between Parent and the undersigned
stockholder (the "VOTING AGREEMENT"), and is granted in consideration of Parent
entering into that certain Agreement and Plan of Merger (the "MERGER
AGREEMENT"), by and among Parent, Elan Acquisition Corporation, a Nevada
corporation and a wholly-owned subsidiary of Parent ("MERGER SUB"), and the
Company, which provides for the merger of Merger Sub with and into the Company
in accordance with its terms (the "MERGER"). As used herein, the term
"EXPIRATION DATE" shall mean the earlier to occur of (i) such date and time as
the Merger Agreement shall have been validly terminated pursuant to its terms,
or (ii) such date and time as the Merger shall become effective in accordance
with the terms and conditions set forth in the Merger Agreement.
The attorneys and proxies named above, and each of them, are hereby
authorized and empowered by the undersigned, at any time prior to the Expiration
Date, to act as the undersigned's attorney and proxy to vote the Shares, and to
exercise all voting, consent and similar rights of the undersigned with respect
to the Shares (including, without limitation, the power to execute and deliver
written consents) at every annual, special, adjourned or postponed meeting of
stockholders of the Company and in every written consent in lieu of such
meeting:
(i) in favor of approval of the Merger;
(ii) against approval of any proposal made in opposition to,
or in competition with, consummation of the Merger and the transactions
contemplated by the Merger Agreement, and against any action or agreement that
would result in a breach of any representation, warranty, covenant, agreement or
other obligation of the Company in the Merger Agreement; and
(iii) against any Acquisition Proposal or (other than those
actions that relate to the Merger and the transactions contemplated by the
Merger Agreement) any other: (A) merger, consolidation, business combination,
sale of assets, reorganization or recapitalization of the Company or any
subsidiary of the Company with any party, (B) sale, lease or transfer of any
significant part of the assets of the Company or any subsidiary of the Company,
(C) reorganization, recapitalization, dissolution, liquidation or winding up of
the Company or any subsidiary of the Company, (D) material change in the
capitalization of the Company or any subsidiary of the Company, or the corporate
structure of the Company or any subsidiary of the Company, or (E) action that is
intended, or could reasonably be expected to, impede, interfere with, delay,
postpone, discourage or adversely affect the Merger or any of the other
transactions contemplated by the Merger Agreement.
The attorneys-in-fact and proxies named above may not exercise this
Proxy on any other matter except as provided above.
Any obligation of the undersigned hereunder shall be binding upon the
successors and assigns of the undersigned.
This Proxy is irrevocable (to the fullest extent permitted by law).
This Proxy shall terminate, and be of no further force and effect, automatically
upon the Expiration Date.
Dated: __________________ ____, 2006
Signature of Stockholder:
------------------------------
Print Name of Stockholder:
-----------------------------
Shares beneficially owned:
________ shares of Company capital stock
________ shares of the Company capital stock
issuable upon the exercise of outstanding
options, warrants or other rights
