VOTING AGREEMENT
Exhibit
10.1
FORM
OF
THIS
VOTING AGREEMENT (this “Agreement”) is made
and entered into as of December __, 2007 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
dated as of December 19, 2007 (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
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.
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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):
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If
to Parent:
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Intuit
Inc.
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0000
Xxxxxx Xxx
Xxxxxxxx
Xxxx, XX 00000
Attention:
General Counsel
Telephone
No.: (000) 000-0000
Telecopy
No.: (000) 000-0000
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with
a copy to:
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O’Melveny
& Xxxxx LLP
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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.
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INTUIT
INC.
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By:
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Signature
of Authorized Signatory
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Name:
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Title:
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*****VOTING
AGREEMENT*****
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STOCKHOLDER:
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By:
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Signature
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Name:
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Title:
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Print
Address
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Telephone
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Facsimile
No.
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Shares
beneficially owned:
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__________
shares of Company capital stock
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__________
shares of Company capital stock issuable upon the exercise of outstanding
options, warrants or other rights
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*****VOTING
AGREEMENT*****
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 dated as of December 19, 2007 (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: December
____, 2007
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Signature
of Stockholder:
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Print
Name of Stockholder:
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Shares
beneficially owned:
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________
shares of Company capital stock
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________
shares of the Company capital stock issuable upon the exercise of
outstanding options, warrants or other
rights
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