SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of Earliest Event Reported): September 27, 2004
ELECTRONIC CLEARING HOUSE, INC.
(Exact Name of Registrant as Specified in Charter)
NEVADA 0-15245 93-0946274
(State or Other Jurisdiction (Commission (I.R.S. Employer
of Incorporation) File Number) Identification No.)
730 PASEO CAMARILLO, CAMARILLO, CALIFORNIA 93010
(Address of Principal Executive Offices) (Zip Code)
(800) 233-0406
(REGISTRANT'S TELEPHONE NUMBER, INCLUDING AREA CODE)
Check the appropriate box below if the Form 8-K filing is intended to
simultaneously satisfy the filing obligation of the registrant under any of the
following provisions (see General Instruction A.2. below):
[_] Written communications pursuant to Rule 425 under the Securities Act (17
CFR 230.425)
[_] Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
[_] Pre-commencement communications pursuant to Rule 14d-2(b) under the
Exchange Act (17 CFR 240.14d-2(b))
[_] Pre-commencement communications pursuant to Rule 13e-4(c) under the
Exchange Act (17 CFR 240.13e-4(c))
ITEM 1.01 ENTRY INTO A MATERIAL DEFINITIVE AGREEMENT.
On September 13, 2004, the Board of Directors of Electronic Clearing House,
Inc., a Nevada corporation (the "Company"), authorized and adopted Amendment
Number One to Amended and Restated Rights Agreement (the "Amendment"), which is
intended to amend certain provisions and exhibits of that certain Amended and
Restated Rights Agreement dated January 29, 2003 (the "Restatement"), entered
into between the Company and OTR, Inc., an Oregon corporation and stock transfer
agent of the Company (the "Company"). The Company and the Rights Agent executed
the Amendment on September 27, 2004. The purpose of the Amendment was to, among
other matters, adjust the purchase price of the Rights and Second Rights
authorized and declared under the terms of the Restatement so that each Right
and Second Right could represent a similar economic effect as was intended for
such Right and Second Right on January 29, 2003, the date the Restatement was
executed.
The following summary of the principal terms of the Restatement, as amended
by the Amendment, is a general description only and is subject to the detailed
terms and conditions of the Restatement, as amended.
A copy of the Restatement may be found as an exhibit to the Company's
amended Form 8-A, filed with the Securities and Exchange Commission on February
10, 2003. Copies of the Amendment, and of a press release announcing the
Amendment, are attached hereto as Exhibits 4.2 and 99.1, respectively, and are
incorporated herein by reference.
DISTRIBUTION OF RIGHTS
On September 30, 1996, the Board of Directors (the "Board") of the Company
implemented a Rights Agreement between the Company and its stock transfer agent,
OTR, Inc. ("Rights Agent"). The purpose of the Rights Agreement was to protect
Company shareholders in the event of an unsolicited attempt to acquire the
Company for an inadequate price and to protect against abusive practices that do
not treat all Company shareholders equally, such as, among others, partial and
two tier tender offers, coercive offers, and creeping stock accumulation
programs, etc. The Rights Agreement was intended to make the cost of such
abusive practices prohibitive and create an incentive for a potential acquirer
to negotiate in good faith with the Board. The Rights Agreement was not intended
to prevent all unsolicited offers from acquiring the Company.
On June 11, 2001, the Board authorized a 4:1 reverse split of the Company's
Common Stock. On September 11, 2001, the Company's Common Stock began trading
post reverse split shares, resulting in 5,447,662 shares outstanding as of that
date. Under the terms of the Rights Agreement, a right ("Right(s)") attached to
all Common Stock certificates that entitled the shareholder of record, when the
Right was exercised, to purchase from the Company, at a price of $0.50, one
one-hundredth of a share of Series A Junior Participating Preferred Stock, no
par value (the "Preferred Stock"). Each one one-hundredth share of Preferred
stock carries with it a bundle of rights. As a result of the September 11, 2001
reverse split, each Right entitled each shareholder of record to purchase four
one-hundredths of a Preferred Stock share at a purchase price of $0.50.
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On January 29, 2003, the Board authorized and adopted an Amended and
Restated Rights Agreement (the "Restatement") which was a complete restatement
of, and superceded, the Rights Agreement. The Company and the Rights Agent
executed the Restatement on that date. The purpose of the Restatement was, among
other matters, to (i) clarify the effects on each Right of (a) dividends payable
in common stock, and (b) subdivisions, combinations or consolidations of Common
Stock, as the same had been declared and implemented by the Company prior to the
effective date of the Restatement, and (ii) authorize, declare and distribute a
second dividend of one preferred share purchase right (the "Second Right") for
each share of Common Stock of the Company outstanding on the effective date of
the Restatement. The purpose of the Second Right was to provide additional
protection to Company shareholders in the event of an unsolicited attempt to
acquire the Company for an inadequate price and to protect against abusive
practices that do not treat all Company shareholders equally. The Restatement
was intended to make the cost of such abusive practices prohibitive and create
an incentive for a potential acquirer to negotiate in good faith with the Board.
The Restatement was not intended to, and will not, prevent all unsolicited
offers to acquire the Company.
On September 13, 2004, the Board authorized and adopted Amendment Number
One to Amended and Restated Rights Agreement (the "Amendment"), which is
intended to amend the Restatement to, among other matters, adjust the purchase
price of the Rights and Second Rights so that each Right and Second Right could
represent a similar economic effect as was intended for such Right and Second
Right on January 29, 2003, the date the Restatement was executed. The Company
and the Rights Agent executed the Amendment on September 27, 2004.
All Rights and Second Rights are issued pursuant to, and will be subject to
the terms and conditions of, the Restatement, as amended on September 27, 2004.
The following is a brief summary of the terms of the Rights and Second Rights.
Each Right and Second Right, when exercisable, will entitle the registered
holder thereof to purchase from the Company four one-hundreds (4/100ths) of a
share of the Preferred Stock of the Company (the "Preferred Stock") at a
Purchase Price of $2.00 per one one-hundredth (1/100th) of a share of Preferred
Stock (the "Purchase Price"), subject to certain adjustments. Notwithstanding
this, the Company may also provide for each Right and Second Right, when
exercisable, to entitle the registered holder thereof to purchase from the
Company, in lieu of shares of Preferred Stock, such number of shares of Common
Stock of the Company as will equal the result obtained by (x) multiplying the
then current Purchase Price by the then number of one one-hundredth of a share
of Preferred Stock for which a Right or a Second Right, as the case may be, is
then exercisable and dividing that product by (y) 50% of the current per share
market price of the Company's Common Stock, as determined in accordance with the
provisions of the Restatement.
EXERCISE OF RIGHTS
The Rights and Second Rights will initially be represented by the
certificates evidencing the Common Stock and will not be exercisable, or
transferable apart from the Common Stock, until the earliest to occur of (the
earliest of these dates is referred to as the "Distribution Date"): (i) 10 days
following the public announcement that, without prior consent of the Board, a
person of group of persons ("Acquiring Person") have acquired 20% of the
outstanding Common Stock
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("Stock Acquisition Date"), and (ii) at least 10 business days following the
commencement of, or the announcement of an intention to make a tender offer for
20% or more the such outstanding Common Stock. As soon as practicable following
the Distribution Date, Rights Certificates will be mailed to holders of record
of Common Stock as of the close of business on the Distribution Date. Such
Rights Certificates alone will evidence the Rights and Second Rights, and any
Rights and/or Second Rights owned by an Acquiring Person shall become null and
void. The final expiration date of all Rights is September 30, 2006 and all
Second Rights is January 29, 2013, unless the Rights and/or Second Rights are
earlier redeemed or exchanged by the Company.
ANTI-TAKEOVER PROVISIONS
Following the Stock Acquisition Date, the Rights and Second Rights would
give holders (other than the Acquiring Person, its affiliates and transferees)
the right to purchase from the Company, for the Purchase Price, that number of
one one-hundredth (1/100th) of a share of Preferred Stock (or Common Stock as
described above, or in certain circumstances, cash, property or other securities
of the Company) having a market value of approximately eight times the Purchase
Price of the Right or Second Right. Notwithstanding any of the foregoing,
following the Stock Acquisition Date, all Rights and Second Rights that are, or
(under certain circumstances specified in the Rights Agreement) were,
beneficially owned by any Acquiring Person will be null and void.
Further, in a merger, consolidation or sale or transfer of 50% or more of
the consolidated assets or earning power of the Company, each Right and Second
Right will be converted into the right to purchase, for the Purchase Price, that
number of shares of common stock of the surviving entity or (in certain
circumstances) its parent corporation, which at the time of such transaction
will have a market value of approximately eight times the Purchase Price of the
Right and Second Right.
Preferred Stock purchasable upon exercise of the Rights will not be
redeemable. Each one one-hundredth (1/100th) of a share of Preferred Stock will
be entitled to participating dividends per one one-hundredth (1/100th) of a
share equal to dividends which may from time to time be declared on a share of
Common Stock. In the event of liquidation, the Preferred Stock holders will be
entitled to a preferential liquidation payment. These rights are protected by
customary anti-dilution provisions.
REDEMPTION OF RIGHTS
At any time prior to the earlier to occur of (i) the tenth day after the
Stock Acquisition Date, and (ii) the expiration of the Rights or the expiration
of the Second Rights, as the case may be, the Company may redeem the Rights in
whole, but not in part, at a price of $0.001 per Right and per Second Right
("Redemption Price"), or, following the Stock Acquisition date, redeem Rights
and Second Rights in whole, but not in part, at the Redemption Price providing
either (a) the Acquiring person reduces his ownership to less than 20% of the
Common Stock, or (b) such redemption is incidental to a merger or other business
combination transaction involving the Company but not involving an Acquiring
Person. In addition, if an unsolicited offer is made, and the Board determines
that it is fair and in the best interests of the Company and its shareholders,
then, pursuant to the terms of the Rights Agreement, the Board has the authority
to redeem the
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Rights and Second Rights and permit the offer to proceed. Upon the payment of
the Redemption Price, the right to exercise any Right or any Second Right will
terminate.
EXCHANGE
At any time prior to or after the acquisition by a person or group of affiliated
or associated persons of 20% or more of outstanding Common Stock (but before
such persons acquire 50% or more of such stock), the Board may exchange Rights
and/or Second Rights, in whole or in part, at an exchange ratio of one share of
Common Stock per Right and per Second Right.
VOTING OR DIVIDEND RIGHTS
Until a Right or Second Right is exercised, the holder of a Right and/or
Second Right will not, by reason of being such a holder, have rights as a
Company stockholder.
ADJUSTMENT/AMENDMENT
The purchase price, manner of exercising Rights and Second Rights, number
of Rights and Second Rights, terms of the Rights and Second Rights, number of
one one-hundredths of a share of Preferred Stock issuable upon exercise of a
Right or a Second Right, are subject to adjustment and amendment without the
consent of the holders of the Rights and/or Second Rights, in any manner by the
Board for business purposes, i.e., preventing dilution, adjustment in the event
of a stock split, declaration of a dividend, etc., except that from and after
such time as any person becomes an Acquiring Person, or after the Distribution
Date, no such adjustment or amendment may adversely affect the interests of the
holders of the Rights or of the Second Rights.
RIGHTS AGREEMENT
Copies of the Rights Agreement and Restatement and any amendments thereto,
as filed with the Securities and Exchange Commission, are available free of
charge from the Company. This summary description of the Rights and Second
Rights does not purport to be complete and is qualified in its entirety by
reference to the Rights Agreement and the Restatement, as amended.
ITEM 9.01 FINANCIAL STATEMENTS AND EXHIBITS
(a) Financial Statements of business acquired. None.
(b) Pro forma Financial Information.
None.
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(c) Exhibits.
The following exhibits are filed herewith:
Exhibit
Number Description
------ -----------
4.1 Amended and Restated Rights Agreement dated as of January 29, 2003, by
and between the Company and OTR, Inc., as Rights Agent, including the Form of
Certificate of Designation, Preferences and Rights of Series A Junior
Participating Preferred Stock, the Form of Rights Certificate, and the Summary
of Rights to Purchase Preferred Shares, attached thereto as Exhibits A, B and C,
respectively. (1)
4.2 Amendment Number One to Amended and Restated Rights Agreement dated as
of September 27, 2004, by and between the Company and OTR, Inc.
99.1 Press Release announcing the Amendment, issued by the Company on
September 27, 2004.
-----------------
(1) Filed as an exhibit to the Company's amended Form 8-A filed with the
Securities and Exchange Commission on February 10, 2003 and incorporated
herein by reference.
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EXHIBIT INDEX
-------------
Exhibit
Number Description
------ -----------
4.1 Amended and Restated Rights Agreement dated as of January 29, 2003, by
and between the Company and OTR, Inc., as Rights Agent, including the Form of
Certificate of Designation, Preferences and Rights of Series A Junior
Participating Preferred Stock, the Form of Rights Certificate, and the Summary
of Rights to Purchase Preferred Shares, attached thereto as Exhibits A, B and C,
respectively. (1)
4.2 Amendment Number One to Amended and Restated Rights Agreement dated as
of September 27, 2004, by and between the Company and OTR, Inc.
99.1 Press Release announcing the Amendment, issued by the Company on
September 27, 2004.
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
ELECTRONIC CLEARING HOUSE, INC.
Date: September 30, 2004 By /s/ Alice Cheung
--------------------------------------
Alice Cheung
Chief Financial Officer
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