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Exhibit 10.1
FORM
OF
VOTING AGREEMENT
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
(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 c
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