ex10_63.htm


    
      

    

    Exhibit
      10.63


    SEPARATION
      AGREEMENT AND GENERAL RELEASE

     

    


    THIS
      SEPARATION AGREEMENT AND GENERAL RELEASE (this
“Agreement”) is made and entered into as of this
      10th day of
      August, 2007 (the “Execution Date”), to be effective
      as of the 2nd
      day of July, 2007 (the “Effective Date”), by and
      between Joel M. Barry (the “Executive”) and Electronic
      Clearing House, Inc., a Nevada corporation (together with any and all of its
      subsidiaries as appropriate, the
“Company”).

     

    RECITALS

     

    A.           The
      Executive has served as the Chairman and Chief Executive Officer of Company,
      and
      desires to confirm his retirement, and corresponding resignation, from all
      executive and employment positions at the Company and as a director of the
      Company, effective as of the Effective Date. 

     

    B.           As
      a material inducement to the Company’s execution of this Agreement, the
      Executive further desires to provide the Company with a general release and
      to
      enter into a non-competition agreement with the Company and certain other
      agreements and covenants in exchange for certain payments payable to the
      Executive under this Agreement, and the Company desires to make such payments
      and enter into such agreements and covenants with the Executive on the terms
      set
      forth herein.

     

    AGREEMENT

     

    NOW,
      THEREFORE, in consideration of the premises, the Executive and the
      Company agree as follows:

     

    1.           Retirement/Resignation.

     

    1.1            The
      Executive hereby confirms his retirement and resignation as the Chairman and
      Chief Executive Officer of the Company and otherwise from all director,
      executive and employment positions at the Company, effective as of the Effective
      Date.  The Executive further acknowledges and agrees that his position
      as Chairman and Chief Executive Officer of the Company is ended and terminated
      effective as of the Effective Date, and that his employment as such will not
      be
      continued or resumed again at any time.  The Executive also hereby
      confirms his resignation as a Director of the Company, effective as of the
      Effective Date.  The parties hereby acknowledge and agree that the
      Executive also is relieved of his position as a signatory and responsible person
      on the Company’s bank accounts effective as of the Effective
      Date.  The Executive hereby acknowledges and agrees that (i) the
      Company has fully paid and satisfied all amounts properly due and owing to
      the
      Executive as a result of his employment with Company through the Effective
      Date,
      and (ii) in the absence of this Agreement, Executive would not be entitled
      to
      any of the payments provided for hereunder as a result of his retirement and
      resignation.  The parties will characterize the Executive’s departure
      from the Company as a retirement, and corresponding resignation, from the
      Company.

     

    1.2            From
      and after the Execution Date, the Executive agrees to make himself available
      from time to time to consult with the Company, and provide general cooperation
      and assistance in order to facilitate an orderly transition, as reasonably
      requested by the Company (the “Transition
      Assistance”); provided, such Transition Assistance is to be
      provided at no out-of-pocket cost to the Executive, and shall generally be
      provided at Executive’s convenience.  The Executive shall receive no
      additional compensation other than the Cash Compensation provided for herein
      for
      providing Transition Assistance.

     

    
      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

    

     

    2.      Compensation.

     

    2.1           Cash
      Compensation.  The Company will pay the Executive all
      salary earned through the Effective Date and all accrued but unused vacation
      time or PTO earned through the Effective Date (“Accrued
      Compensation”).  The Company will pay the Executive, in
      separate payments, two years of Executive’s current base compensation
      (representing an aggregate amount equal to $592,800.00), plus an amount equal
      to
      $150,000.00 (representing the aggregate of Executive’s bonus payments in the two
      years prior to the Effective Date, but subject to a maximum cap of $150,000.00)
      (the “Cash Compensation”) in accordance with the
      following schedule of payments:  (a) an initial lump-sum payment of
      $300,000.00 to be paid within three (3) business days of the Execution Date,
      (b)
      $221,400.00 to be paid on January 2, 2008; and (c) $221,400.00 to be paid on
      January 2, 2009.  The parties intend that the Cash Compensation
      payable pursuant to clauses (a) and (b) above shall be treated as a short-term
      deferral as that term is used in Section 409A of the Internal Revenue Code
      of,
      as amended (the “Code”) and the regulations
      promulgated thereunder (collectively, “Section
      409A”).  The parties intend that the Cash Compensation
      payable pursuant to clause (c) above shall be treated as a separate payment
      for
      purposes of Section 409A and excluded from the definition of “deferred
      compensation” pursuant to the regulations promulgated thereunder regarding
      separation pay payable upon an involuntary separation from
      service.  The parties agree that the payment date for the Cash
      Compensation payable pursuant to clauses (b) or (c) above may be accelerated
      at
      the written request of the Executive, and, upon such written request, each
      such
      payment will be paid within three (3) business days of such
      request.  The Accrued Compensation and the Cash Compensation will be
      paid in accordance with the Company’s normal payroll practices and will be
      subject to normal federal and state withholding obligations.

     

    2.2           Stock
      Options.    Any and all stock options issued to
      Executive pursuant to the Company’s Incentive Stock Option Plan 1992, as amended
      (the “1992 Plan”), all of which are or shall be fully
      vested as of the Effective Date, shall expire in accordance with their terms
      based on the termination of the Executive’s employment with the Company,
      effective as of the Effective Date.  Any and all unvested stock
      options issued to Executive pursuant to the Company’s Amended and Restated 2003
      Incentive Stock Option, as amended (the “2003 Plan”),
      shall immediately vest on the Effective Date.  Any and all stock
      options issued to Executive pursuant to the 2003 Plan shall expire,
      notwithstanding the provisions thereof or the provisions of the 2003 Plan to
      the
      contrary, on the 360th day following
      the
      Effective Date.  The stock options issued to Executive will otherwise
      continue to be subject to the terms and conditions applicable to stock options
      granted under the 1992 Plan or 2003 Plan, as applicable, and any applicable
      stock option agreements between the Executive and the Company; provided,
      however, that in the event of a conflict between the provisions of this
      Agreement and the 1992 Plan, 2003 Plan or the applicable stock option
      agreements, the provisions of this Agreement shall apply.  Each of
      Executive and Company acknowledge and agree that this Section 2.2 has
      been expressly approved by the Compensation Committee of the Board of Directors
      of the Company pursuant to the authority delegated to such committee under
      the
      1992 Plan and the 2003 Plan, each as has been previously approved by the
      Company’s shareholders, and that no portion of the foregoing shall be deemed an
      amendment or other modification of the 1992 Plan, 2003 Plan or any stock option
      agreement issued thereunder.\

     

    
      
        
          
          

        

        
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    2.3           Car
      Payments.  The Company will pay an amount equal to
      $21,929.85, the payoff amount as of the Execution Date, directly to Nissan
      Motor
      Acceptance Corp in respect of the promissory note due for the Nissan Maxima
      automobile previously provided for use to the Executive. The Company shall
      not
      be responsible for any other costs related to the vehicle or the Executive’s use
      thereof following the Effective Date, including, but not limited to, insurance
      (which must have been obtained by Executive within 30 days of the Effective
      Date), all of which shall have been obtained by Executive on or after the
      Effective Date at his own cost and expense.

     

    2.4           Medical
      Benefits.  For a period of two (2) years after the
      Effective Date, the Company shall continue to make available to Executive
      medical benefits on a basis that is substantially similar (in benefits to
      Executive and costs to Company), in the aggregate, to the benefits that were
      available to the Executive immediately prior to the Effective Date.

     

    3.           Non-Admission
      of Discrimination or Wrongdoing.

     

    3.1           This
      Agreement shall not in any way be construed as an admission by the Company
      or
      the Executive that it or he acted wrongfully with respect to the other, or
      any
      other person or entity.

     

    3.2           The
      Executive acknowledges and agrees that he has not suffered any discrimination
      and/or harassment in terms, conditions or privileges of his employment based
      on
      age, race, gender, religious creed, color, national origin, ancestry, physical
      disability, mental disability, medical condition, marital status, sexual
      orientation, or on any other basis.  The Executive acknowledges and
      agrees that he has no claim for employment discrimination and/or harassment
      under any legal or factual theory.

     

    4.           Company
      Property.  Executive represents and agrees that, as of
      the Execution Date, he has turned over to Company all correspondence, reports,
      records, designs, patents, business plans, financial statements, manuals,
      memoranda, customer lists, customer databases, charts, advertising materials,
      other similar data and other property delivered to or compiled by Executive
      by
      or on behalf of the Company or its representatives, vendors or customers which
      pertain to the business of the Company or future plans of the Company, and
      any
      other physical or personal property that are the property of Company that he
      had
      in his possession, custody or control (whether directly or indirectly) on the
      Execution Date.  Notwithstanding the foregoing, as soon as reasonably
      practicable following the Execution Date, the Company will deliver to the
      Executive or otherwise permit Executive to retain (i) the desktop and laptop
      computers used by the Executive in the provision of his services to the Company
      prior to the Effective Date, cleansed of all data and programs, together with
      the docking station, mouse and keyboard used by the Executive with such
      computers, (ii) his office chair, and (iii) his mobile phone; provided, however,
      that the Company will not continue to pay or be responsible for any charges
      or
      fees incurred in  connection with the use thereof; which such fees
      shall become the sole responsibility of the Executive as of the Effective
      Date.  The Company also will deliver to the Executive a compact disk
      containing a copy of the Executive’s contacts that were on such
      computers.  The Company will, for a period of one year from the
      Effective Date, continue to accept messages and forward all personal and
      non-business related calls received at Executive’s previously assigned (800)
      899-1289 telephone number to the contact number provided by Executive. All
      other
      services, utilities, and other benefits not explicitly provided for herein
      shall
      be cancelled as of the Effective Date, including but not limited to home
      internet access, mobile phone plans and usage and Blackberry or other similar
      service.

     

    
      
        
          
          

        

        
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    5.           Trade
      Secrets and Agreements Not to Solicit and Not to Compete; Company’s Right to
      Seek Injunctive Relief.

     

    5.1           The
      Executive understands, acknowledges and agrees that in the course of employment
      with the Company he has acquired confidential information and trade secrets
      concerning the Company’s past, present or future clients, operations, plans,
      methods of doing business (including, without limitation, customer lists),
      projected and historical revenues, marketing, costs, production, growth and
      distribution, and confidential business strategies (“Confidential
      Information”).  The Executive understands, acknowledges
      and agrees that it would be extremely damaging to the Company if such
      information were disclosed to a competitor or made available to any other person
      or entity.  The Executive understands and agrees that such
      Confidential Information has been disclosed to the Executive in confidence,
      that
      he will keep such information secret and confidential and that he will not
      in
      any way use, distribute or disclose such information.

     

    5.2           The
      Executive further agrees that for a period of twelve (12) months from the
      Effective Date (the “Restricted Period”), the
      Executive shall not (i) directly or indirectly, engage, without the express
      prior written consent of the Company, in any Competing Business, whether as
      an
      employee, director, consultant, partner, principal, agent, representative,
      equity holder or in any other individual, corporate or representative capacity
      (without limitation by specific enumeration of the foregoing), or render any
      services or provide any advice to any Competing Business; and (ii) directly
      or
      indirectly, (a) with respect to the Business, solicit or divert or attempt
      to
      solicit or divert any business or clients or customers made known to the
      Executive during his employment with the Company away from the Company, (b)
      induce or attempt to induce customers, clients, suppliers, agents or other
      Persons under contract or otherwise associated or doing business with Company
      who are made known to the Executive during his employment with the Company,
      to
      reduce or alter any such association or business with the Company, and/or (c)
      knowingly solicit or attempt to solicit any Person in the employment of the
      Company to (I) terminate such employment, and/or (II) accept employment, or
      enter into any consulting arrangement, with any Person other than the
      Company.  The Executive acknowledges and agrees that the Company
      depends on the services and contributions of its employees and personnel,
      including certain key employees and personnel of the Company who have
      pre-existing business and personal relationships with the Executive and were
      initially introduced to the Company by the Executive.  The Executive
      acknowledges and understands that the loss of the services of any such key
      employees or personnel by the Company could materially and adversely affect
      the
      Company’s business, operations and prospects, and the covenants, agreements and
      obligations set forth in this Section 5.2 are a material inducement to
      the Company’s execution of this Agreement and its agreement to enter into the
      obligations (including payment obligations) set forth herein.  For the
      purposes hereof, the following terms have the meanings ascribed to them
      below:  (i) “Business” means the business in
      which the Company is engaged, including the business of developing, designing,
      manufacturing, licensing, marketing, selling and/or distributing solutions
      for
      payment processing, including, without limitation, credit card processing,
      debit
      card processing, merchant accounts, check guarantee, check verification, check
      conversion, check representment, check collection, and Automated Clearing House
      check processing; (ii) “Competing Business” means any
      business, activity or Person in direct or indirect competition (or seeking
      or
      contemplating to compete, directly or indirectly) with the Business; and (iii)
      “Person” means an individual, a partnership, as
      corporation, an association, a joint stock company, a trust, a joint venture,
      an
      unincorporated organization or any other form of legal entity.

     

    
      
        
          
          

        

        
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    5.3           In
      view of the nature of the Executive’s employment and the Confidential
      Information and trade secrets that the Executive has received during the course
      of his employment, and without limiting the generality of any other provision
      of
      this Agreement, the Executive also agrees that the Company would be irreparably
      harmed by any violation or threatened violation of this Agreement and that,
      therefore, the Company shall be entitled to an injunction prohibiting the
      Executive from any violation or threatened violation of this Agreement, in
      addition to any other relief, including monetary damages, to which the Company
      may be entitled.

     

    5.4           The
      Executive agrees that the terms and the time periods provided for, and the
      geographical area encompassed by, the covenants contained in Section 5
      hereof are necessary and reasonable in order to protect the good will and value
      of the Business.  The parties agree that the execution, delivery and
      performance of this Agreement are in partial consideration of and a condition
      to
      the Company’s obligation to pay the Cash Compensation to the
      Executive.  If any court having jurisdiction at any time hereafter
      shall hold any provision or clause of this Agreement to be unreasonable as
      to
      its scope, territory or term, and if such court in its judgment or decree shall
      declare or determine that scope, territory or term which such court deems to
      be
      reasonable, then such scope, territory or term, as the case may be, shall be
      deemed automatically to have been reduced or modified to conform to that
      declared or determined by such court to be reasonable.

     

    6.           Acknowledgements.  

     

    6.1           The
      Executive hereby acknowledges and agrees that the Cash Compensation payments
      specified in Section 2.1 above is not required under the Company’s normal
      policies and procedures and is provided as consideration for the agreements,
      covenants and obligations set forth herein, and in particular, as consideration
      for the covenants, agreements and obligations set forth in Sections 5,
8 and 9 hereof.

     

    6.2           The
      Executive further acknowledges and agrees that the payments referenced in
Section 2.1 above also constitute adequate and valuable consideration, in
      and of themselves, for the promises contained in this Agreement and the
      foregoing referenced covenants, agreements and obligations.

     

    6.3           The
      Executive further acknowledges and agrees that (i) in the event of any breach
      of
      Executive’s agreements, covenants and obligations set forth herein, including,
      without limitation, the agreements, covenants and obligations set forth in
      Sections 5, 8 and 9 hereof, or (ii) in the event that the
      Board of Directors of the Company determines that, in the course of Executive’s
      employment with the Company, Executive had violated his fiduciary or other
      duties to the Company, or had otherwise caused the Company to incur monetary
      damages or other damages, losses, costs or expenses as a result of Executive’s
      negligence or misconduct, then, in addition to any and all other rights and
      remedies to which the Company may be entitled to hereunder or under any
      applicable laws, Executive shall pay to the Company all of the Cash Compensation
      and other separation benefits (or the value thereof) Executive previously
      received hereunder, and the Company shall be entitled to withhold indefinitely
      any and all remaining Cash Compensation and other separation benefits (or the
      value thereof) to be provided hereunder, and may use any and all such amounts
      to
      offset any damages, losses, costs or expenses incurred.  Executive
      agrees to pay to the Company any and all such amounts within sixty (60) days
      of
      the Company’s written notification to Executive of the Board of Directors’
determination.

     


    
      
        
        

      

      
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    7.           Covenant
      Not to Sue.

     

    7.1           The
      Executive agrees that he will not file a lawsuit, administrative complaint
      or
      charge of any kind with any court, governmental or administrative agency or
      arbitrator against the Company, or any of the Company’s parents, subsidiaries,
      partners, affiliates, shareholders, directors, officers, employees, agents,
      representatives, predecessors, successors or assigns, asserting any claims
      that
      are released in this Agreement.

     

    7.2           The
      Executive represents and agrees that, before signing this Agreement, he has
      not
      filed or pursued any complaints, charges or lawsuits of any kind with any court,
      governmental or administrative agency or arbitrator against the Company or
      any
      of the Company’s parents, subsidiaries, partners, affiliates, shareholders,
      directors, officers, employees, agents, representatives, predecessors,
      successors or assigns, asserting any claims that are released in this
      Agreement.

     

    8.           General
      Release.

     

    8.1           Release
      by the Executive.  As a material inducement for the
      Company to enter into this Agreement, and as partial consideration for the
      payments provided herein, the Executive knowingly and voluntarily waives and
      releases all rights and claims, known and unknown, which the Executive may
      have
      against the Company, and/or any of the Company’s related or affiliated entities
      or successors, or any of their current or former parents, subsidiaries,
      partners, affiliates, shareholders, directors, officers, employees, agents,
      representatives, predecessors, successors or assigns (the “Company
      Releasees”), including without limitation, any and all charges,
      complaints, claims, liabilities, obligations, promises, agreements, contracts,
      controversies, damages, actions, causes of action, suits, rights, demands,
      costs, losses, debts and expenses of any kind arising out of, resulting from
      or
      in any manner relating to the Executive’s  employment by the Company
      up to the date of this Agreement, the termination of the Executive’s employment
      hereunder or the parties’ entry into this Agreement.  The Executive’s
      general release under this Agreement includes, but is not limited to, claims
      for
      employment discrimination, harassment, wrongful termination, constructive
      termination, violation of public policy, breach of any express or implied
      contract, breach of any implied covenant, fraud, intentional or negligent
      misrepresentation, emotional distress, defamation, libel, or any other claims
      relating to the Employee’s relationship with Company.  The Executive’s
      general release also includes a release of any claims under any federal, state
      or local laws or regulations, including, but not limited to: (a) Title VII
      of
      the Civil Rights Act of 1964, 42 U.S.C. § 2000(e) et. seq. (race,
      color, religion, sex, and national origin discrimination; (b) the Age
      Discrimination in Employment Act, 29 U.S.C. § 621 et. seq. (age
      discrimination); (c) Section 1981 of the Civil Rights Act of 1866, 42 U.S.C.
      1981 (race discrimination); (d) the Equal Pay Act of 1963, 29 U.S.C. § 206
      (equal pay); (e) the California Fair Employment and Housing Act, Cal. Gov’t.
      Code §12900, et. seq. (discrimination, including race, color,
      national origin, ancestry, disability, medical condition, marital status, sex,
      sexual orientation; sexual or racial harassment and age); (f) the California
      Labor Code § 200, et. seq. ­(salary, commission, compensation,
      benefits and other matters); (g) the Fair Labor Standards Act, 29 U.S.C. § 201,
et. seq. (wage and hour matters, including overtime pay); (h) the
      Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA), 42 U.S.C. S
      1395(c) (insurance matters); (9) Executive Order 11141 (age discrimination);
      (i)
      Section 503 of the Rehabilitation Act of 1973, 29 U.S.C. § 701, et.
seq. (disability discrimination); (j) the Wheeler Retirement Income
      Security Act of 1974, 29 U.S.C. § 1001, et. seq. (employee benefits); (k)
      Title I of the Americans with Disabilities Act (disability discrimination);
      California Labor Code Section 132a (discrimination based on filing a workers’
compensation claim); and (l) any applicable California Industrial Welfare
      Commission Order (wage matters).  The Executive is not releasing any
      claims (a) based on acts or events occurring after the signing of this
      Agreement, (b) rights to benefits that have vested under any Company benefit
      plan, (c) any claims to indemnification as a director or officer under or
      pursuant to Company’s Certificate of Incorporation or Bylaws, and (d) any rights
      to Directors’ and Officers’ insurance coverage.  The matters that are
      the subject of the releases referred to in this Section 8.1 are referred
      to herein as the “Executive Released
      Matters.”

     

    
      
        
          
          

        

        
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    8.2           Unknown
      Claims.  The Executive acknowledges that there is a risk
      that subsequent to the execution of this Agreement, the Executive will incur
      or
      suffer damage, loss or injury to persons or property that is unknown or
      unanticipated at the time of the execution of this Agreement.  The
      Executive hereby specifically assumes such risk and agrees that this Agreement
      and the releases contained herein shall and do apply to all unknown or
      unanticipated claims, as well as those currently known or
      anticipated.  Accordingly, the Executive acknowledges that he has read
      the provisions of California Civil Code Section 1542, which provides as
      follows:

     

    
      	 	 “A
              general release does not extend to claims which the creditor does not
              know
              or suspect to exist in his favor at the time of executing the release,
              which if known by him must have materially affected his settlement
              with
              the debtor.”	 


    

     

    Notwithstanding
      the provisions of Section 1542, and for the purpose of implementing a full
      and
      complete release and discharge of the Company and others released herein, the
      Executive expressly acknowledges that this Agreement is intended to include
      and
      does include in its effect, without limitation, all claims which he does not
      know or suspect to exist in his favor against the Company Releasees, and that
      this Agreement contemplates the extinguishment of any such claim or
      claims.


    
      
        
        

      

      
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    8.3           Assumption
      of Risk; Investigation of Facts.  The Executive
      hereby expressly assumes the risk of any mistake of fact or that the true facts
      might be other than or different from the facts now known or believed to exist,
      and it is the Executive’s express intention to forever settle, adjust and
      compromise any and all disputes between and among the Executive and the Company
      Releasees, finally and forever, and without regard to who may or may not have
      been correct in their respective understandings of the facts or the law relating
      thereto.  In making and executing this Agreement, the Executive
      represents and warrants that he has made such investigation of the facts and
      the
      law pertaining to the matters described in this Agreement as he deems necessary,
      and he has not relied upon any statement or representation, oral or written,
      made by the Company with respect to any of the facts involved in any dispute
      or
      possible dispute between the parties hereto, or with respect to any of his
      rights or asserted rights, or with respect to the advisability of making and
      executing this Agreement.

     

    8.4           Ownership
      of Claims.   The Executive
      represents and agrees that he has not assigned or transferred, or attempted
      to
      assign or transfer, to any person or entity, any of the Executive Released
      Matters.

     

    8.5           No
      Representations.       Each
      party represents and agrees that no promises, statements or inducements have
      been made to such party that caused such party to sign this Agreement other
      than
      those expressly stated in this Agreement.

     

    9.           Release
      of Age Discrimination
      Claims.

     

    9.1           Age
      Discrimination is Specifically
      Intended to be Included as an Executive Released
      Matter.  The Executive specifically intends that this
      Agreement shall include a complete release of claims under the Age
      Discrimination in Employment Act of 1967 (the “ADEA”;
      29 U.S.C. §§ 621 etseq.), as amended by the Older Workers’ Benefit
      Protection Act of 1990, except for any allegation that a breach of this Act
      occurred following the date of this Agreement.

     

    9.2           Additional
      Consideration.  The Executive
      agrees and promises that this Agreement contains obligations by the Company
      to
      the Executive that are in addition to consideration to which the Executive
      was
      otherwise entitled from the Company.  In addition, the Executive
      acknowledges and agrees that additional consideration has been provided by
      the
      Company (beyond that which would have otherwise been provided) in order to
      effect a valid waiver of the Executive’s claims under the Federal age
      discrimination laws.

     

    9.3            Reasonable
      Time to Consider Settlement Agreement. The Executive acknowledges
      that he has been given a reasonable period of time (a maximum of twenty-one
      (21)
      days, if he so chooses) to consider this Agreement before signing this
      Agreement.  The Executive understands that he has seven (7) days
      following signing of this Agreement to rescind it, but only insofar as it
      effects a release of a claim for violation of the ADEA, in which case it shall
      remain fully effective in all other respects.  To rescind this
      Agreement as to the ADEA, the Executive agrees to fax a letter signed by the
      Executive to the Company, by the end of the seven (7)-day period.  The
      remainder of this Agreement shall remain in full force and effect.

     

    
      
        
          
          

        

        
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    9.4           Non-Release
      of Future Claims. The Executive is hereby advised that this
      Agreement does not waive or release any rights or claims that the Executive
      may
      have under the ADEA, or otherwise, which arise after the date the Executive
      signs this Agreement.

     

    10.           Confidentiality
      of this Agreement.  The Executive agrees to keep the
      terms of and amount paid under this Agreement completely confidential, and
      not
      to disclose such information to anyone other than his spouse, attorneys and
      licensed tax and/or professional investment advisor (hereafter referred to
      as
      the “Executive’s Confidants”), all of whom will be
      informed of and be bound by this confidentiality provision.  Neither
      the Executive nor the Executive’s Confidants will disclose the terms of this
      Agreement to anyone, including without limitation, any representative of any
      print, radio or television media, to any past, present or prospective applicant
      for employment with the Company, executive recruiter or “headhunter,” to any
      counsel for any current or former employee of the Company, to any other counsel
      or third party, or to the public at large.

     

    11.           Goodwill
      And Reputation of Company and Executive.  Each of the
      Executive and the Company further agrees not to take actions or make statements,
      written or oral, that disparage or defame the goodwill or reputation of the
      other, or any the other’s respective parents, subsidiaries, partners,
      affiliates, shareholders, directors, officers, employees, agents,
      representatives, predecessors, successors, assigns, heirs, executors or
      administrators.

     

    12.           Attorney’s Fees.  The
      losing party shall be liable to the prevailing party for its reasonable costs
      and attorney’s fees, including the costs of the arbitrator in any arbitration,
      incurred in any action to enforce this Agreement.

     

    13.           Independent
      Counsel; Interpretation.  THE EXECUTIVE HEREBY
      EXPRESSLY REPRESENTS, ACKNOWLEDGES AND CONFIRMS THAT HE HAS BEEN ADVISED TO
      SEEK
      AND OBTAIN LEGAL ADVICE FROM INDEPENDENT COUNSEL REPRESENTING HIS INTERESTS
      WITH
      RESPECT TO THIS AGREEMENT, THAT HE HAS HAD THE FULL RIGHT AND OPPORTUNITY TO
      CONSULT WITH SUCH COUNSEL, THAT HE HAS AVAILED HIMSELF OF THIS RIGHT AND
      OPPORTUNITY, THAT HE HAS CAREFULLY READ AND FULLY UNDERSTANDS THIS AGREEMENT
      IN
      ITS ENTIRETY, THAT HE IS FULLY AWARE OF THE CONTENTS HEREOF AND THE MEANING,
      INTENT AND LEGAL EFFECT OF THIS AGREEMENT, AND THAT HE HAS EXECUTED THIS
      AGREEMENT FREE FROM COERCION, DURESS OR UNDUE
      INFLUENCE.  SPECIFICALLY, BY SIGNING THIS AGREEMENT, EXECUTIVE
      UNDERSTANDS, AND HEREBY ACKNOWLEDGES AND CONFIRMS, THAT HE MAY BE GIVING UP
      SIGNIFICANT LEGAL RIGHTS.  SHOULD ANY PROVISION OF THIS AGREEMENT
      REQUIRE JUDICIAL INTERPRETATION, IT IS AGREED THAT A COURT INTERPRETING OR
      CONSTRUING THE SAME SHALL NOT APPLY A PRESUMPTION THAT THE TERMS HEREOF SHALL
      BE
      MORE STRICTLY CONSTRUED AGAINST ANY PARTY BY REASON OF THE RULE OF CONSTRUCTION
      THAT A DOCUMENT IS TO BE CONSTRUED MORE STRICTLY AGAINST THE PARTY WHO ITSELF
      OR
      THROUGH ITS AGENT PREPARED THE SAME, IT BEING AGREED THAT ALL PARTIES HERETO
      HAVE PARTICIPATED IN THE PREPARATION OF THIS AGREEMENT.

     

    
      
        
          
          

        

        
          9

          
            

          

        

        
          
          

        

      

    

     

    14.           Notices.
      Any notice required to be given or delivered by one party to the other hereunder
      shall be in writing and addressed as specified below or at such other addresses
      as shall be specified by the parties by like notice.  All notices
      shall be deemed effectively given upon personal delivery, (a) five (5) days
      after deposit in the United States mail by certified or registered mail (return
      receipt requested), (b) two (2) business day after its deposit with any return
      receipt express courier (prepaid), or (c) one (1) business day after
      transmission by facsimile.

     

    
      	
              If
                to the Company: 

            	
              If
                to the Executive:

            	 
	 	 	 	 
	 	
              Electronic
                Clearing House, Inc.

            	
              Joel
                M. Barry

            	 
	 	
              730
                Paseo Camarillo

            	 	 
	 	
              Camarillo,
                CA 93010

            	 	 
	 	
              Fax:

            	 	 
	 	
               

            	 	 
	 	
              With
                a copy to:

            	 	 
	 	 	 	 
	 	
              Stubbs
                Alderton & Markiles, LLP

            	 	 
	 	
              15260
                Ventura Boulevard

            	 	 
	 	
              20th
                Floor

            	 	 
	 	
              Sherman
                Oaks, CA 91403

            	 	 
	 	
              Attn:  V.
                Joseph Stubbs, Esq.

            	 	 
	 	
              Fax:  818-474-8607

            	 	 


    

    


    15.           Further
      Actions.  Whether or not specifically required under the
      terms of this Agreement, each party hereto shall execute and deliver such
      documents and take such further actions as shall be necessary in order for
      such
      party to perform all of his or its obligations specified herein or reasonably
      implied from the terms hereof.

     

    16.           Successors,
      Third Party Beneficiaries.

     

    16.1           This
      Agreement is personal to the Executive and, without the prior written consent
      of
      the Company, is not assignable by the Executive.  This Agreement will
      inure to the benefit and be enforceable by the Executive’s legal representatives
      (including any duly appointed guardian) acting in their capacities as such
      pursuant to applicable law.

     

    16.2           This
      Agreement will inure to the benefit of and be binding on the Company and its
      successors and assigns.  The Company will be entitled to assign all of
      its obligations hereunder to any successor (direct or indirect and whether
      by
      purchase, merger, consolidation, share exchange or otherwise) to the business,
      properties and assets of the Company; provided, however, that the
      Company will remain liable for the full, timely performance of all the
      obligations so assigned as if such assignment had not been made.

     

    16.3           Except
      as otherwise expressly provided in this Agreement, this Agreement is not
      intended, and shall not be construed, deemed or interpreted, to confer on
      any person or entity not a party hereto any rights or remedies
      hereunder.

     

    
      
        
        

      

      
        10

        
          

        

      

      
        
        

      

    

     

    17.           Execution
      In Counterparts.   This Agreement may be executed in
      two (2) or more counter­parts, all of which taken together shall constitute
      one agreement.

     

    18.           Severability
      and Governing Law.

     

    18.1             Should
      any of the provisions in this Agreement be declared or be determined to be
      illegal or invalid, all remaining parts, terms or provisions, or any sections,
      subsections, paragraph or subparagraphs, shall be valid, and the illegal or
      invalid part, term or provision, or section, subsection, paragraph or
      subparagraph, shall be deemed not to be a part of this Agreement.

     

    18.2             This
      Agreement is made and entered into in the State of California and shall in
      all
      respects be interpreted, enforced and governed under the laws of
      California.

     

    19.           Proper
      Construction.

     

    19.1           The
      language of all parts of this Agreement shall in all cases be construed as
      a
      whole according to its fair meaning, and not strictly for or against any of
      the
      parties.

     

    19.2           As
      used in this Agreement, the term “or” shall be deemed to include the term
“and/or” and the singular or plural number shall be deemed to include the other
      whenever the context so indicates or requires.

     

    19.3           The
      paragraph headings used in this Agreement are intended solely for convenience
      of
      reference and shall not in any manner amplify, limit, modify or otherwise be
      used in the interpretation of any of the provisions hereof.

     

    20.           Entire
      Agreement.   This Agreement is the entire agreement
      between the Executive and the Company, and fully supersedes any and all prior
      agreements or understandings between the parties pertaining to its subject
      matter.

     

     

    [Signatures
      appear on next page]

     

    
      
        
          
          

        

        
          11

          
            

          

        

        
          
          

        

      

    

    


    PLEASE
      READ CAREFULLY. THIS CONSULTING AGREEMENT AND GENERAL RELEASE INCLUDES A RELEASE
      OF ALL KNOWN AND UNKNOWN CLAIMS.

    


    


    


    
      	
               DATE:  
                

            	
              8/9/07

            	 	
              /s/
                Joel M. Barry

            
	 	 	
              JOEL
                M. BARRY

            
	 	 	 
	 	 	 
	
              DATE:
                

            	
              08-10-07

            	 	
              ELECTRONIC
                CLEARING HOUSE, INC.

            
	 	 	 
	 	 	 
	 	 	
              /s/
                Charles Harris

            
	 	 	
              Name:  CHARLES
                HARRIS

            
	 	 	
              Title:  CHIEF
                EXECUTIVE OFFICER

            


    

    


     

    12