MUTUAL TERMINATION AND RELEASE AGREEMENT
MUTUAL
TERMINATION AND RELEASE AGREEMENT, dated as of March 26, 2007 (this
“Agreement”),
by
and among by and among Intuit Inc., a Delaware corporation (“Parent”),
Elan
Acquisition Corporation, a Nevada corporation and a wholly-owned
subsidiary of Parent (“Merger
Sub”),
and
Electronic Clearing House, Inc., a Nevada corporation (the “Company”).
RECITALS
WHEREAS,
the Company, Parent and Merger Sub are parties to an Agreement and Plan of
Merger, dated as of December 14, 2006 (as amended, the “Merger
Agreement”)
(capitalized terms used herein but not otherwise defined herein shall have
the
meanings ascribed to them in the Merger Agreement); and
WHEREAS,
the Company, Parent and Merger Sub wish to terminate the Merger
Agreement.
NOW
THEREFORE, in consideration of the foregoing and the mutual covenants and
agreements contained herein, and intending to be legally bound hereby, the
Company, Parent and Merger Sub hereby agree as follows:
1. The
Company, Parent and Merger Sub hereby agree that the Merger Agreement is
terminated as of the date hereof by mutual written consent in accordance
with
Section 7.1(a) thereof without any liability on the part of Parent, Merger
Sub,
the Company, or any of their respective subsidiaries, directors, officers,
agents, representatives, shareholders and other affiliates (“Related
Parties”)
(and
each of their respective Related Parties).
2. Each
of
the Company, Parent and Merger Sub, on behalf of itself and all present or
former subsidiaries and other affiliates, hereby releases the other parties
and
their Related Parties (and each of their respective Related Parties) from
all
claims, demands, debts, liabilities, obligations, agreements, promises, losses,
damages, demands, rights, actions or causes of action, whether known or unknown,
whether at law or equity, whether direct or derivative (herein “Claim”
or
“Claims”)
arising under or relating to the Merger Agreement or any of the transaction(s)
described or referred to in the Merger Agreement; provided however, that
nothing
in this Agreement shall be construed to release any Claim arising under or
relating to the Confidentiality Agreement or this Agreement.
3. Each
of
the Company, Parent and Merger Sub hereby represents and warrants to the
other
parties that: (a) it has full power and authority to enter into this Agreement
and to perform its obligations hereunder in accordance with its provisions,
(b)
this Agreement has been duly authorized, executed and delivered by such party,
and (c) this Agreement constitutes a legal, valid and binding obligation
of such
party, enforceable in accordance with its terms, except as enforceability
may be
limited by applicable bankruptcy, moratorium or other similar laws affecting
creditors’ rights generally and by general principles of
equity.
4. This
Agreement shall be construed and enforced in accordance with, and be governed
by, the laws of the State of New York without regard to its conflict of law
provisions, and it may not modified, amended or terminated, nor may the
provisions hereof be waived, other than in a written instrument executed
by all
parties hereto.
5. This
Agreement may be executed in two or more counterparts, each of which shall
be
deemed an original, all of which together shall constitute one and the same
instrument.
[The
remainder of this page is intentionally left blank.]
IN
WITNESS WHEREOF, each of the undersigned has duly executed this Mutual
Termination and Release Agreement as an agreement as of the date first above
written.
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INTUIT
INC.
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By:
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Name:
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Title:
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ELAN
ACQUISITION CORPORATION
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By:
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Name:
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Title:
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ELECTRONIC
CLEARING HOUSE, INC.
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By:
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Name:
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Title:
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