ex4_5.htm


    
      

    

    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.

    


    
      	
              ELECTRONIC
                CLEARING HOUSE,
                INC.

            	 	
              OTR,
                INC.

            
	 	 	 	 	 
	 	 	 	 	 
	
              By:

            	/s/
              Charles
              J. Harris	 	
              By:

            	/s/
              Robert E. Roach
	 	
              Charles
                J. Harris

            	 	
              Name:

            	Robert
              E. Roach
	 	
              President
                & Chief Executive Officer

            	 	
              Title:

            	Vice
              President


    

     

     

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