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
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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
2
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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
