ELECTRONIC CLEARING HOUSE, INC. AND OTR, INC. AMENDMENT NUMBER FOUR TO AMENDED AND RESTATED RIGHTS AGREEMENT DECEMBER 19, 2007
Exhibit
4.5
ELECTRONIC
CLEARING HOUSE,
INC.
AND
OTR,
INC.
AMENDMENT
NUMBER FOUR
TO
AMENDED
AND RESTATED RIGHTS
AGREEMENT
DECEMBER
19, 2007
AMENDMENT
NUMBER FOUR
TO
AMENDED
AND RESTATED RIGHTS
AGREEMENT
This
Amendment Number Four to Amended
and Restated Rights Agreement (this “FourthAmendment”)
is made
and entered into as of the 19th
day of December,
2007, by and between Electronic Clearing House, Inc., a Nevada corporation
(“Company”),
and OTR,
Inc., an Oregon corporation (“Rights
Agent”).
RECITALS
A. Pursuant
to that certain Rights Agreement dated September 30, 1996, by and between the
Company and the Rights Agent (the “Original
Agreement”),
the Board of Directors of the Company authorized, declared and distributed
a
dividend of one preferred share purchase right (“Right”)
for each share
of Common Stock of the Company outstanding on September 30, 1996 (“Record
Date”), each
Right representing the right to purchase four one-hundredths of a Preferred
Stock share, and further authorized and directed the issuance of one Right
with
respect to each Common Stock share that has or will become outstanding between
the Record Date and the earliest of the Distribution Date, the Redemption Date
and the Final Expiration Date.
B. On
January 29, 2003, the Company and the Rights Agent entered into an Amended
and
Restated Rights Agreement (the “Amended
Agreement”)
that completely amended and restated the Original Agreement to, among other
matters, clarify the effects on each Right of (i) dividends payable in common
stock and (ii) subdivisions, combinations or consolidations of Common Stock
as
the same have been declared and implemented by the Company prior to January
29,
2003. Capitalized terms used but not otherwise defined herein shall
have the meanings ascribed to such terms in the Amended Agreement.
C. Concurrent
with the execution of the Amended Agreement, the Board of Directors of the
Company authorized and declared, and distributed as of the January 29, 2003,
a
second dividend of one preferred share purchase right (the “Second
Right”) for
each share of Common Stock of the Company outstanding on January 29, 2003,
each
Second Right representing the right to purchase four one-hundredths of a
Preferred Stock share, upon the terms and subject to the conditions set forth
in
the Amended Agreement, and further authorized and directed the issuance of
one
Second Right with respect to each Common Stock share that has or will become
outstanding between January 29, 2003 and the earliest of the Distribution Date,
the Redemption Date and the Final Expiration Date.
D. On
September 27, 2004, the Company and the Rights Agent entered into an Amendment
Number One to Amended and Restated Rights Agreement to, among other matters,
amend the purchase price of each individual Right and Second Right such that
each Right and Second Right would have a similar economic effect as was intended
for such Right and Second Right under the Amended Agreement.
E. On
December 14, 2006, the Company and the Rights Agent entered into an Amendment
Number Two to Amended and Restated Rights Agreement to amend the Amended
Agreement (as amended), including all applicable sections, to revise the
definition of “Acquiring Person” to exempt Intuit Inc., a Delaware corporation,
therefrom.
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F. On
April 24, 2007, the Company and the Rights Agent entered into an Amendment
Number Three to Amended and Restated Rights Agreement to amend the Amended
Agreement (as amended), including all applicable sections, to revise the
definition of “Acquiring Person” to remove the exemption of Intuit Inc., a
Delaware corporation, therefrom.
G. The
Board of Directors of the Company has determined that it is in the best
interests of the Company and its shareholders to amend the Amended Agreement
(as
amended), including all applicable sections, to revise the definition of
“Acquiring Person” to exempt Intuit Inc., a Delaware corporation, and Elan
Acquisition Corporation, a Nevada corporation (collectively referred to as
“Intuit”)
therefrom.
H. Pursuant
to Section 27 of the Amended Agreement, the Board of Directors has the power
and
authority to direct the amendment of the Amended Agreement (as amended) by
the
Company and the Rights Agent, such amendment to be evidenced by a writing signed
by both parties.
Accordingly,
in consideration of the premises and the mutual agreements herein set forth,
the
parties hereby agree as follows:
1. Amendment
to Section
1(a). Section 1(a) of the Amended Agreement (as amended) is
hereby amended and restated to read in its entirety as follows:
“(a)
"Acquiring Person" shall mean any
Person (as such term is hereinafter defined) who or which, together with all
Affiliates and Associates (as such terms are hereinafter defined) of such
Person, shall be the Beneficial Owner (as such term is hereinafter defined)
of
twenty-percent (20%) or more of the Common Stock of the Company then
outstanding, but shall not include the (i) Company, (ii) any Subsidiary (as
such
term is hereinafter defined) of the Company, (iii) any employee benefit plan
of
the Company or of any Subsidiary of the Company, or of any entity holding Common
Stock for or pursuant to the terms of any such plan, and (iv) Intuit Inc.,
a
Delaware corporation (“Intuit”),
provided,
however, that if a Person is the Beneficial Owner at the close of business
on
the date of this Agreement of twenty-percent (20%) or more of the Common Stock
of the Company, such Person shall not be deemed an Acquiring Person unless
and
until such Person acquires any additional Common Stock in any manner other
than
pursuant to a stock dividend, stock split, recapitalization, or similar
transaction that does not affect the percentage of outstanding Common Stock.
Notwithstanding the foregoing, no Person shall become an "Acquiring Person"
as
the result of an acquisition of Common Stock by the Company which, by reducing
the number of shares outstanding, increases the proportionate number of shares
beneficially owned by such Person to twenty-percent (20%) or more of the Common
Stock of the Company then outstanding; provided, however, that if a Person
shall
become the Beneficial Owner of twenty-percent (20%) or more of the Common Stock
of the Company then outstanding by reason of share purchases by the Company
and
shall, after such share purchases by the Company, become the Beneficial Owner
of
any additional Common Stock of the Company, then such Person shall be deemed
to
be an "Acquiring Person." Notwithstanding the foregoing, if a majority of the
Board of Directors then in office determines in good faith that a Person who
should be an "Acquiring Person," as defined pursuant to the foregoing provisions
of this paragraph (a), has become such inadvertently, and such Person divests
as
promptly as practicable a sufficient number of shares of Common Stock so that
such Person would no longer be an Acquiring Person, as defined pursuant to
the
foregoing provisions of this paragraph (a), then such a Person shall not be
deemed to be an "Acquiring Person" for any purposes to this
Agreement. For the avoidance of doubt, in no event shall the
execution of the Agreement and Plan of Merger by and among the Company, Intuit
and Electronic Clearing House Acquisition Corporation be deemed to be a Stock
Acquisition Date or to result in a Distribution Date.”
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2. Amendment
to Section 3(a).
Section 3(a) of the Amended Agreement (as amended) is hereby amended
and
restated to read in its entirety as follows:
“(a)
Until the earlier of the close of business on (i) the tenth day after the Stock
Acquisition Date, or (ii) the tenth Business Day (or such later date as may
be
determined by action of the Board of Directors prior to such time as any Person
becomes an Acquiring Person) after the date of the commencement by any Person
(other than the Company, any Subsidiary of the Company, any employee benefit
plan of the Company or of any Subsidiary of the Company or any entity holding
Common Stock for or pursuant to the terms of any such plan, or Intuit) of,
or of
the first public announcement of the intention of any Person (other than the
Company, any Subsidiary of the Company, any employee benefit plan of the Company
or of any Subsidiary of the Company or any entity holding Common Stock for
or
pursuant to the terms of any such plan, or Intuit) to commence, a tender or
exchange offer the consummation of which would result in any Person becoming
the
Beneficial Owner of Common Stock aggregating twenty-percent (20%) or more of
the
then outstanding Common Stock, irrespective of whether any shares of Common
Stock are actually purchased pursuant to such offer (including any such date
which is after the Record Date (with respect to Rights) and the Effective Date
(with respect to Second Rights) and prior to the issuance of the Rights or
the
Second Rights, as the case may be, the earliest of such dates being herein
referred to as the "Distribution Date"), (x) the Rights/Second Rights will
be
evidenced, subject to the provisions of Section 3(b) hereof, by the certificates
for Common Stock registered in the names of the holders thereof (which
certificates shall also be deemed to be Rights Certificates) and not be separate
Rights Certificates, and (y) the right to receive Rights Certificates will
be
transferable only in connection with the transfer of Common Stock. As soon
as
practicable after the Distribution Date, the Company will prepare and execute,
the Rights Agent will countersign, and the Company will send or cause to be
sent
(and the Rights Agent will, if requested, send) by first-class, insured,
postage-prepaid mail, to each record holder of Common Stock as of the close
of
business on the Distribution Date, at the address of such holder shown on the
records of the Company, a Rights Certificate, in substantially the form of
Exhibit B attached hereto ("Rights Certificate"), evidencing one Right or Second
Right, as the case may be, for each Common Stock share so held. As of the
Distribution Date, the Rights and Second Rights will be evidenced solely by
such
Rights Certificates.”
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3. Amendment
to Section
24(a). Section 24(a) of the Amended Agreement (as amended) is
hereby amended and restated to read in its entirety as follows:
“(a)
The
Board of Directors of the Company may, at its option, at any time after any
Person becomes an Acquiring Person, exchange all or part of the then outstanding
and exercisable Rights and Second Rights, which shall not include Rights or
Second Rights that have become void pursuant to the provisions of Section
11(a)(ii) hereof, for Common Stock at an exchange ratio of one Common Stock
share per Right or per Second Right, as the case may be, appropriately adjusted
to reflect any stock split, stock dividend or similar transaction occurring
after the date hereof, such exchange ratio being hereinafter referred to as
the
"Exchange Ratio." Notwithstanding the foregoing, the Board of Directors shall
not be empowered to effect such exchange at any time after any Person (other
than the Company, any Subsidiary of the Company, any employee benefit plan
of
the Company or of any such Subsidiary, or of any entity holding Common Stock
for
or pursuant to the terms of any such plan, or Intuit), together with all
Affiliates and Associates of such Person, becomes the Beneficial Owner of 50%
or
more of the Common Stock then outstanding.”
4. Ratification
of Amended
Agreement. Except as expressly amended or modified herein, all
terms and conditions of the Amended Agreement (as amended) are hereby ratified,
confirmed and approved and shall remain in full force and effect. In
the event of any conflict or inconsistency between this Fourth Amendment, on
the
one hand, and the Amended Agreement (as amended), on the other hand, this Fourth
Amendment shall govern.
[Signature
Page
Follows]
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IN
WITNESS WHEREOF, the parties
hereto have executed this Fourth Amendment as of the date first set forth
above.
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ELECTRONIC
CLEARING HOUSE,
INC.
|
OTR,
INC.
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By:
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/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ |
By:
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/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ | |
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▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇
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Name:
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇ | ||
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President
& Chief Executive Officer
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Title:
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Vice President | ||
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