sc13d
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
(Rule 13d-102)
INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT
TO RULE 13d-1(a) AND AMENDMENTS THERETO FILED PURSUANT TO
RULE 13d-2(a)
(Amendment No. _____)*
ELECTRONIC CLEARING HOUSE, INC.
Common Stock, par value $0.01 per share
(Title of Class of Securities)
285562500
Laura A. Fennell, Esq.
Intuit Inc.
2700 Coast Avenue
Mountain View, CA 94043
(650) 944-6000
with a copy to:
Michael Dorf, Esq.
OMelveny & Myers LLP
Embarcadero Center West
275 Battery Street, Suite 2600
San Francisco, California 94111
Telephone: (415) 984-8700
(Name, Address and Telephone Number of Person Authorized to
Receive Notices and Communications)
December 19, 2007
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule
13G to report the acquisition that is the subject of this Schedule
13D, and is filing this schedule because of §§240.13d-1(e),
240.13d-1(f) or 240.13d-1(g), check the following box.
Note: Schedules filed in paper format shall include a signed
original and five copies of the schedule, including all exhibits.
See §240.13d-7 for other parties to whom copies of this statement
are to be sent.
*The remainder of this cover page shall be filled out for a
reporting persons initial filing on this form with respect to the
subject class of securities, and for any subsequent amendment
containing information which would alter disclosures provided in a
prior cover page.
The information required on the remainder of this cover page shall
not be deemed to be filed for the purpose of Section 18 of the
Securities Exchange Act of 1934 (Act) or otherwise subject to the
liabilities of that section of the Act but shall be subject to all
other provisions of the Act (however, see the Notes).
TABLE OF CONTENTS
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1 |
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Names of Reporting Persons.
I.R.S. Identification Nos. of above persons (entities only).
Intuit Inc. |
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2 |
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Check the Appropriate Box if a Member of a Group (See Instructions)
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(a) o |
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(b) þ |
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3 |
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SEC Use Only |
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4 |
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Source of Funds (See Instructions) |
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N/A |
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5 |
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Check if Disclosure of Legal Proceedings is Required Pursuant to Items 2(d) or 2(e) |
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o |
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6 |
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Citizenship or Place of Organization |
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Delaware
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7 |
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Sole Voting Power |
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Number of |
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0 |
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Shares |
8 |
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Shared Voting Power |
Beneficially |
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Owned by |
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1,072,248 shares of Common Stock |
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Each |
9 |
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Sole Dispositive Power |
Reporting |
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Person |
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0 |
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With |
10 |
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Shared Dispositive Power |
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0 |
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11 |
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Aggregate Amount Beneficially Owned by Each Reporting Person |
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1,072,248 shares of Common Stock |
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12 |
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Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) |
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13 |
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Percent of Class Represented by Amount in Row (11) |
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15.2% |
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14 |
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Type of Reporting Person (See Instructions) |
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CO |
Item 1. Security and Issuer
This statement on Schedule 13D relates to the shares of common stock, par value $0.01 per
share (Common Stock), of Electronic Clearing House, Inc. (ECHO or the Company), a
Nevada corporation, with its principal office located at 730 Paseo Camarillo, Camarillo,
California 93010.
Item 2. Identity and Background
(a) This Schedule 13D is being filed by Intuit Inc., a corporation organized and existing
under the laws of Delaware (Intuit).
(b) The principal business address of Intuit is 2700 Coast Avenue, Mountain View, CA 94043.
(c) Intuit provides business and financial management solutions for small and mid-sized
businesses, consumers and accounting professionals.
(a)-(c); (f) The name, business address, present principal occupation or employment, and the
name and principal business of any corporation or other organization in which such
employment is conducted of each of the directors and executive officers of Intuit is set
forth in Schedule I hereto, and is incorporated by reference. Except as otherwise indicated
in Schedule I hereto, each person listed in Schedule I hereto is a citizen of the United
States.
(d)-(e) During the last five years, Intuit has not, nor, to the knowledge of Intuit, has any
of the persons listed on Schedule I hereto, (i) been convicted in a criminal proceeding
(excluding traffic violations or similar misdemeanors) or (ii) been a party to a civil
proceeding of a judicial or administrative body of competent jurisdiction and as a result of
such proceeding was or is subject to a judgment, decree or final order enjoining future
violations of, or prohibiting or mandating activities subject to, Federal or State
securities laws, or finding any violation with respect to such laws.
Item 3. Source and Amount of Funds or Other Consideration
The Voting Agreements described in Item 4 of this Schedule 13D (the terms of which are
hereby incorporated by reference) were entered into by Intuit and each of Aristides W.
Georgantas, Herbert L. Lucas, Jr., Richard D. Field, Jerry McElhatton, Keith Hall, Alice
Cheung, Stephen D. Hoofring, Patricia M. Williams, Richard Lee Slater, Karl J. Asplund,
Charles Harris, Kris Winckler, Jack Wilson and Sharat Shankar (collectively, the
Stockholders), who are all the directors and executive officers of ECHO. The Stockholders
entered into the Voting Agreements as an inducement to Intuit to enter into the Merger
Agreement described in Item 4 (the terms of which are hereby incorporated by reference).
Intuit did not pay additional consideration to the Stockholders in connection with the
execution and delivery of their respective Voting Agreements and thus no funds were used for
such purpose.
Item 4. Purpose of Transaction
(a)-(b) On December 19, 2007, Intuit, Elan Acquisition Corporation, a Nevada corporation and
wholly-owned subsidiary of Intuit (Merger Sub), and ECHO entered into an Agreement and
Plan of Merger (the Merger Agreement) providing for the merger of Merger Sub with and into
ECHO (the Merger), with ECHO surviving the Merger as a wholly-owned subsidiary of Intuit
(the Surviving Corporation), upon the terms and subject to the conditions set forth in the
Merger Agreement. At the effective time and as a result of the Merger, ECHO stockholders
will be entitled to receive, for each share of ECHO common stock, $17.00 in cash.
A copy of the Merger Agreement is included as Exhibit 1 hereto and the description of the
Merger Agreement contained herein is qualified in its entirety by reference to Exhibit 1,
which is incorporated herein by reference.
In connection with the execution of the Merger Agreement, in order to induce Intuit and
Merger Sub to enter into the Merger Agreement, each of the Stockholders entered into a
Voting Agreement with Intuit, dated as of December 14, 2006 (each, a Voting Agreement and
together, the Voting Agreements). Pursuant to the Voting Agreements, the Stockholders have
agreed to vote all securities of ECHO (including all shares of Common Stock and all options,
warrants and other rights to acquire shares of Common Stock) owned by them (the Shares):
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in favor of approval of the Merger; |
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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 |
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against any Acquisition Proposal (as defined in the Merger Agreement) 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. |
Pursuant to the Voting Agreements, the Stockholders also granted to the directors of Intuit
an irrevocable proxy and irrevocably appointed them as their attorney and proxy to vote the
Shares on any of the foregoing matters at every ECHO annual, special, adjourned or postponed
stockholder meeting and in every written consent in lieu of such meeting.
The Voting Agreements terminate upon the earliest 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. A copy of the form of Voting Agreement is included as
Exhibit 2 hereto and the description of the Voting Agreements contained herein is qualified
in its entirety by reference to Exhibit 2, which is incorporated herein by reference.
(c) No determination has been made with respect to the sale or transfer of a material amount
of assets of the Company or any of its subsidiaries after the Merger.
(d) It is intended that upon consummation of the Merger, the directors of Merger Sub shall
be the directors of the Surviving Corporation, until the earlier of their resignation or
removal or until their respective successors are duly elected or appointed and qualified.
(e) No determinations have been made regarding material changes in the Companys
capitalization dividend policy after the Merger.
(f) Upon consummation of the Merger, the Company will become a wholly-owned subsidiary of
Intuit. No determinations have been made regarding material changes in the Companys
business or corporate structure after the Merger.
(g) Pursuant to the Merger Agreement, upon consummation of the Merger, the Certificate of
Incorporation of Merger Sub will become the certificate of incorporation of the Surviving
Corporation.
(h) As a result of the Merger Agreement, the Common Stock shall de-list from and no longer
be quoted on the Nasdaq Capital Market.
(i) Upon consummation of the Merger, the Common Stock will become eligible for termination
of registration pursuant to Section 12(g)(4) of the Securities Exchange Act of 1934, as
amended.
(j) Other than as described above, Intuit currently has no plans or proposals which relate
to, or may result in, any of the matters listed in Items 4(a)-(i) of this Schedule 13D
(although Intuit reserves the right to develop such plans).
The description contained in this Item 4 of the transactions contemplated by the Merger
Agreement and the Voting Agreements is qualified in its entirety by reference to the full
texts of the Merger Agreement and the form of Voting Agreement, the terms of each of which
are incorporated herein by reference to Exhibits 1 and 2 hereto. Except as set forth in this
Schedule 13D, the Merger Agreement and the Voting Agreements, Intuit does not and, to the
best of Intuits knowledge, none of the individuals or entities named in Schedule I hereto,
have any plans or proposals which relate to or which would result in or relate to any of the
actions specified in subparagraphs (a) through (j) of Item 4 of Schedule 13D.
Item 5. Interest in Securities of the Issuer
(a)-(b) By virtue of the Voting Agreements, Intuit may be deemed to share with the
Stockholders the power to vote the Shares subject to the Voting Agreements. As a result of
the Voting Agreements, Intuit may be deemed to be the beneficial owner of the Shares subject
to the Voting Agreements, which, upon conversion of any options to acquire shares of Common
Stock, equals an aggregate of 1,072,248 shares of Common Stock, representing approximately
15.2% of the issued and outstanding shares of voting stock of the Company.1 By
virtue of the Voting Agreements, Intuit may be deemed to share with the Stockholders the
power to vote the Shares subject to the Voting Agreements. Intuit, however, hereby disclaims
beneficial ownership of the Shares subject to the Voting Agreements, and this statement
shall not be construed as an admission that either Intuit is, for any or all purposes, the
beneficial owner of the securities covered by this statement.
(c) Except as described in this Schedule 13D, there have been no transactions in the Shares
effected by Intuit or, to the best of Intuits knowledge, any person or entity identified on
Schedule I hereto, during the last 60 days.
(d) Not applicable.
(e) Not applicable.
Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the
Issuer
The information set forth under Items 3, 4 and 5 and the agreements set forth on the
Exhibits attached hereto are incorporated herein by reference. As described in Item 4,
Intuit anticipates it will acquire the entire equity interest in the Company pursuant to the
Merger Agreement.
Other than the Merger Agreement and the Voting Agreements described in Item 4, there are no
contracts, arrangements, understandings or relationships (legal or otherwise) between Intuit
or, to the best of Intuits knowledge, any person or entity listed on Schedule I hereto, and
any person with respect to the securities of the Company, including, but not limited to,
transfer or voting of any of the securities, finders fees, joint ventures, loan or option
arrangements, puts or calls, guarantees of profits, division of profits or loss, or the
giving or withholding of proxies.
Item 7. Material to be Filed as an Exhibit
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1 |
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The total number of issued and outstanding shares of
voting stock of the Company equals the sum of (a) 7,043,379 shares of Common
Stock issued and outstanding as of December 19, 2007 (as represented by the
Company in the Merger Agreement) and (b) 7,043,379 shares of Common Stock
deemed to be outstanding pursuant to Rule 13d-3(d)(1). |
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Exhibit 1
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Agreement and Plan of Merger, dated as of December 19, 2007
among Intuit Inc., Elan Acquisition Corporation and Electronic
Clearing House, Inc. (incorporated by reference to Exhibit 2.1
to the Current Report on Form 8-K of ECHO filed on
December 20,
2007). |
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Exhibit 2
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Form of Voting Agreement (incorporated by reference to
Exhibit 10.1 to the Current Report on Form 8-K of ECHO filed on
December 20, 2007). |
Signature
After reasonable inquiry and to the best of my knowledge and belief, I certify that the information
set forth in this statement is true, complete and correct.
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INTUIT INC. |
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December 21 , 2007 |
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(Date) |
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/S/ LAURA A. FENNELL |
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(Signature) |
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Laura A. Fennell,
Vice President, General Counsel and Secretary |
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(Name and Title) |
Schedule I
Directors and Executive Officers of Intuit Inc.
The name, present principal occupation or employment, and the name of any corporation or
other organization in which such employment is conducted, of each of the directors and executive
officers of Intuit Inc. (Intuit) is set forth below. Except as set forth below each of the
directors and executive officers is a citizen of the United States. The business address of each
director and officer is Intuit Inc., 2700 Coast Avenue, Mountain View, CA 94043.
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Name |
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Present Principal Occupation or Employment |
Stephen M. Bennett
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President and Chief Executive Officer of Intuit |
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Christopher W. Brody
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Director of Intuit: Chairman of Vantage Partners LLC |
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William V. Campbell
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Chairman of the Board of Directors of Intuit |
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Scott D. Cook
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Chairman of the Executive Committee of Intuit. |
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Diane B. Greene
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Director of Intuit: President and Chief Executive Officer of VMware, Inc. |
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Michael R. Hallman
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Director of Intuit: President of The Hallman Group |
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Edward A. Kangas
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Director of Intuit: Non-Executive Chairman of Tenet Healthcare |
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Suzanne Nora Johnson
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Director of Intuit: Senior Director, The Goldman Sachs Group |
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Dennis D. Powell
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Director of Intuit: Senior Vice President and Chief Financial Officer of
Cisco Systems, Inc. |
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Stratton D. Sclavos
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Director of Intuit: Partner, Radar Partners |
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Caroline F. Donahue
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Senior Vice President, Sales of Intuit |
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Laura A. Fennell
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Senior Vice President, General Counsel and Corporate Secretary of Intuit |
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Sasan K. Goodarzi
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Senior Vice President, Financial Institutions Division of Intuit |
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Rick W. Jensen
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Senior Vice President and General Manager, Small Business Group of Intuit |
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Peter J. Karpas
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Senior Vice President and General Manager, Quicken Health Group of Intuit |
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Alexander M. Lintner
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Senior Vice President, Strategy and Corporate Development of Intuit |
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Kiran M. Patel
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Senior Vice President and General Manager, Consumer Tax Group and Chief
Financial Officer of Intuit |
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Brad D. Smith
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Senior Vice President and General Manager, Small Business Division of Intuit |
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Jeffrey E. Stiefler
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Chairman of Advisory Board, Financial Institutions Division of Intuit |
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Jeffrey P. Hank
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Vice President, Corporate Controller of Intuit |