Attached files
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| EX-10.43 - AMENDMENT OF SOLICITATION/MODIFICATION OF CONTRACT - OFFICIAL PAYMENTS HOLDINGS, INC. | exhibit.htm |
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-K/A
Amendment No. 2
(Mark One)
x ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
FOR THE FISCAL YEAR ENDED SEPTEMBER 30, 2010
OR
¨ TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
FOR THE TRANSITION PERIOD FROM ______ TO ______
COMMISSION FILE NUMBER 000-23195
TIER TECHNOLOGIES, INC.
(Exact name of registrant as specified in its charter)
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DELAWARE
(State or other jurisdiction of Incorporation or organization)
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94-3145844
(I.R.S. Employer Identification No.)
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11130 Sunrise Valley Drive, Suite 300, Reston, Virginia 20191
(Address of principal executive offices) (Zip code)
Registrant's telephone number, including area code: (571) 382-1000
Securities registered pursuant to Section 12(b) of the Act:
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Title of each class
COMMON STOCK, $0.01 PAR VALUE
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Name of each exchange on which registered
The NASDAQ STOCK MARKET, LLC
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Securities registered pursuant to Section 12(g) of the Act
NONE
Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act. Yes ¨ No x
Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or Section 15(d) of the Act. Yes ¨ No x
Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes x No ¨
Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T (§ 232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files). Yes ¨ No ¨
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K (§229.405 of this chapter) is not contained herein, and will not be contained, to the best of registrant's knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10-K or any amendment to this Form 10-K. x
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See definition of “large accelerated filer," "accelerated filer," and "smaller reporting company” in Rule 12b-2 of the Exchange Act. (Check one):
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Large accelerated filer o
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Accelerated filer x
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Non-accelerated filer o
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Smaller reporting company o
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(Do not check if a smaller reporting company)
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Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Act). Yes ¨ No x
As of March 31, 2010, the aggregate market value of common stock held by non-affiliates of the registrant was $109,921,041, based on the closing sale price of the common stock on March 31, 2010, as reported on The NASDAQ Stock Market. As of April 13, 2011 there were 16,596,621 shares of common stock outstanding.
We originally filed our Annual Report on Form 10-K for the fiscal year ended September 30, 2010 with the Securities and Exchange Commission (“SEC”) on November 22, 2010, and amended it on January 28, 2011 to include the disclosures required by Part III of Form 10-K, which disclosures we had originally intended to incorporate by reference to our definitive proxy statement. We are filing this Amendment No. 2 to Form 10-K for the sole purpose of filing a revised Exhibit 10.43 to the Form 10-K, in order to disclose certain information for which we had submitted a confidential treatment request. The revised Exhibit 10.43 is being filed as a result of our withdrawal of this confidential treatment request.
In connection with the filing of this Amendment No. 2 to Form 10-K and pursuant to the rules of the SEC, we are including certain currently dated certifications. Accordingly, Item 15 of Part IV has been amended to reflect both the filing of the revised Exhibit 10.43 and the filing of these currently dated certifications.
This Amendment No. 2 to Form 10-K does not reflect events occurring after the original filing of our Annual Report on Form 10-K on November 22, 2010 or include, or otherwise modify or update, the disclosure contained therein in any way other than as required to reflect the amendments discussed above.
(a)
No financial statements or schedules are filed with this report on Form 10-K/A.
Exhibits
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Exhibit number
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Exhibit description
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2.1
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Purchase and Sale Agreement between Tier Technologies, Inc. and Informatix, Inc., dated June 30, 2008 (1)
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2.2
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Asset Purchase Agreement between Tier Technologies, Inc., Cowboy Acquisition Company and ChoicePay, Inc., dated as of January 13, 2009 (2)
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3.1
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Restated Certificate of Incorporation (3)
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3.2
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Amended and Restated Bylaws of Tier Technologies, Inc., as amended (4)
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4.1
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Form of common stock certificate (3)
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4.2
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See Exhibits 3.1 and 3.2, for provisions of the Restated Certificate of Incorporation and Amended and Restated Bylaws, as amended of the Registrant defining rights of the holders of common stock of the Registrant
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10.1
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Amended and Restated 1996 Equity Incentive Plan, dated January 28, 1999 (5)*
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10.2
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Form of Incentive Stock Option Agreement under the Registrant’s Amended and Restated 1996 Equity Incentive Plan (6)*
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10.3
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Form of Nonstatutory Stock Option Agreement under the Registrant’s Amended and Restated 1996 Equity Incentive Plan (6)*
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10.4
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Amended and Restated 2004 Stock Incentive Plan (7)*
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10.5
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Form of Incentive Stock Option Agreement under the Registrant’s Amended and Restated 2004 Stock Incentive Plan (7)*
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10.6
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Form of Nonstatutory Stock Option Agreement under the Registrant’s Amended and Restated 2004 Stock Incentive Plan (7)*
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10.7
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Form of Restricted Stock Agreement under the Registrant’s Amended and Restated 2004 Stock Incentive Plan (7)*
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10.8
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Form of California Indemnification Agreement (8)
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10.9
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Form of Delaware Indemnification Agreement for officers (9)
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10.10
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Form of Delaware Indemnification Agreement for directors (9)
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10.11
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Tier Corporation 401(k) Plan, Summary Plan Description (8)*
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10.12
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Supplemental Indemnity Agreement by and between Registrant and Bruce R. Spector, dated September 2, 2004 (10)*
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10.13
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Amended and Restated Credit and Security Agreement between the Registrant, Official Payments Corporation, EPOS Corporation and City National Bank dated March 6, 2006 (11)
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10.14
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Employment Agreement between Tier Technologies, Inc., and Ronald L. Rossetti, dated July 26, 2006 (12)*
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10.15
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Non-Statutory Stock Option Agreement between Tier and Ronald L. Rossetti, dated July 26, 2006
(12)*
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10.16
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Option Grants awarded to Charles Berger, Morgan Guenther, and fifteen other employees, dated August 24, 2006 (13)*
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10.17
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First Amendment to Amended and Restated Credit and Security Agreement dated March 20, 2007 between the Registrant, Official Payments Corporation, EPOS Corporation and City National Bank (14)
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10.18
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Second Amendment to Amended and Restated Credit and Security Agreement dated September 26, 2007 between the Registrant, Official Payments Corporation, EPOS Corporation and City National Bank (15)
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10.19
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Share Repurchase Agreement between CPAS Systems, Inc., Tier Ventures Corporation and Tier Technologies, Inc. dated June 29, 2007 (16)
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10.20
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Employment Agreement between Tier Technologies, Inc. and Ronald L. Rossetti, dated April 30, 2008. (17)*
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10.21
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Employment Agreement between Tier Technologies, Inc. and Keith Kendrick, dated June 30, 2008 (18)*
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10.22
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Employment Agreement between Tier Technologies, Inc. and Ronald W. Johnston, dated July 1, 2008 (18)*
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10.23
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Third Amendment to Amended and Restated Credit and Security Agreement between Tier Technologies, Inc., Official Payments Corporation, EPOS Corporation and City National Bank dated September 29, 2008 (19)
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10.24
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Employment Agreement between Tier Technologies, Inc. and Nina K. Vellayan, dated September 22, 2008 (20)*
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10.25
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Enterprise Value Award Plan Amendment to Reflect Supplemental Award dated December 4, 2008 between Tier Technologies, Inc. and Ronald L. Rossetti (21)*
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10.26
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Tier Technologies, Inc. Executive Performance Stock Unit Plan (22)*
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10.27
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Employment Agreement between Tier Technologies, Inc. and Keith Omsberg, effective as of May 6, 2009 (23)*
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10.28
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Renewal Letter: Short Clear Extension of Termination Date between Tier Technologies, Inc., Official Payments Corporation, EPOS Corporation and City National Bank (24)
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10.29
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Solicitation/Contract/Order for Commercial Items dated April 3, 2009 between the Internal Revenue Service and Official Payments Corporation (25)
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10.30
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Amendment of Solicitation/Modification of Contract No. 0001 dated October 30, 2009 between the Internal Revenue Service and Official Payments Corporation (25)
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10.31
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Amendment of Solicitation/Modification of Contract No. 0002 dated January 4, 2010 between the Internal Revenue Service and Official Payments Corporation (25)
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10.32
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Amendment of Solicitation/Modification of Contract No. 0003 dated March 29, 2010 between the Internal Revenue Service and Official Payments Corporation (25)
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10.33
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Amendment of Solicitation/Modification of Contract No. 0004 dated March 30, 2010 between the Internal Revenue Service and Official Payments Corporation (25)
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10.34
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Amendment of Solicitation/Modification of Contract No. 0005 dated April 15, 2010 between the Internal Revenue Service and Official Payments Corporation (25)
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10.35
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Deed of Lease agreement between Tier Technologies, Inc. and Sunrise Campus Investors, LLC, dated December 9, 2009 (26)
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10.36
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Agreement dated as of January 8, 2010 among Giant Investment, LLC, Parthenon Investors II, L.P., PCap Partners II, LLC, PCap II, LLC, John C. Rutherford, and Tier Technologies, Inc. (27)
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10.37
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Agreement dated February 25, 2010 among Discovery Equity Partners, L.P., Discovery Group I, LLC, Daniel J. Donoghue, and Michael R. Murphy and Tier Technologies, Inc. (28)
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10.38
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Fourth Amendment to Amended and Restated Credit and Security Agreement dated January 14, 2010 between Tier Technologies, Inc., Official Payments Corporation and City National Bank (29)
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10.39
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Letter Agreement dated July 15, 2010 between Charles W. Berger and Tier Technologies, Inc. (30)
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10.40
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Employment Agreement between Tier Technologies, Inc. and Alex P. Hart, dated August 10, 2010 (31)
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10.41
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First amendment to Employment Agreement between Tier Technologies, Inc and Alex P. Hart, dated August 13, 2010 (32)
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10.42
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Severance Agreement and Release of Claims dated August 17, 2010 between Nina Vellayan and Tier Technologies, Inc. (33)
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10.43
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Amendment of Solicitation/Modification of Contract No. 0006 dated July 12, 2010 between the Internal Revenue Service and Official Payments Corporation †
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10.44
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Letter of amendment to Employment Agreement dated August 31, 2010, between Ronald W. Johnston and Tier Technologies, Inc. (34)*
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10.45
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Letter of amendment to Employment Agreement dated November 3, 2010, between Keith Omsberg and Tier Technologies, Inc. (34)*
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10.46
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Employment Agreement between Tier Technologies, Inc. and Atul Garg, dated October 19, 2010 (34)*
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10.47
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Nonstatutory Stock Option Agreement for Inducement Grant between Tier Technologies, Inc. and Alex P. Hart (34)*
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10.48
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Incentive and Nonstatutory Stock Option Agreement between Tier Technologies, Inc. and Alex P. Hart (34)*
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21.1
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Subsidiaries of the Registrant (34)
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23.1
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Consent of McGladrey & Pullen, LLP, Independent Registered Public Accounting Firm (34)
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31.1
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Certification of Chief Executive Officer pursuant to Rules 13a-14(a) and 15d-14(a) promulgated under the Securities Exchange Act of 1934 (34)
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31.2
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Certification of Chief Financial Officer pursuant to Rules 13a-14(a) and 15d-14(a) promulgated under the Securities Exchange Act of 1934 (34)
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31.3
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Certification of Chief Executive Officer pursuant to Rules 13a-14(a) and 15d-14(a) promulgated under the Securities Exchange Act of 1934 (35)
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31.4
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Certification of Chief Financial Officer pursuant to Rules 13a-14(a) and 15d-14(a) promulgated under the Securities Exchange Act of 1934 (35)
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31.5
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Certification of Chief Executive Officer pursuant to Rules 13a-14(a) and 15d-14(a) promulgated under the Securities Exchange Act of 1934 †
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31.6
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Certification of Interim Principal Financial Officer pursuant to Rules 13a-14(a) and 15d-14(a) promulgated under the Securities Exchange Act of 1934 †
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32.1
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Certification of Chief Executive Officer pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 (34)
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32.2
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Certification of Chief Financial Officer pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 (34)
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* Management contract or compensatory plan required to be filed as an exhibit to this report
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† Filed as an exhibit to this report
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(1) Filed as an exhibit to Form 10-Q, filed July 7, 2008, and incorporated herein by reference
(2) Filed as an exhibit to Form 8-K, filed on January 20, 2009, and incorporated herein by reference
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(3) Filed as an exhibit to Form 8-K, filed on July 19, 2005, and incorporated herein by reference
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(4) Filed as an exhibit to Form 8-K, filed on February 24, 2009, and incorporated herein by reference
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(5) Filed as an exhibit to Form 10-Q, filed May 11, 2001, and incorporated herein by reference
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(6) Filed as an exhibit to Form 8-K, filed November 12, 2004, and incorporated herein by reference
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(7) Filed as an exhibit to Form 8-K, filed July 5, 2005 and incorporated herein by reference
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(8) Filed as an exhibit to Form S-1 (No. 333-37661), filed on October 10, 1997, and incorporated herein by reference
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(9) Filed as an exhibit to Form 10-K, filed December 14, 2007, and incorporated herein by reference
(10) Filed as an exhibit to Form 10-K, filed December 28, 2004, and incorporated herein by reference
(11) Filed as an exhibit to Form 8-K, filed March 9, 2006, and incorporated herein by reference
(12) Filed as an exhibit to Form 8-K, filed August 1, 2006, and incorporated herein by reference
(13) Filed as a Form 8-K, filed August 29, 2006, and incorporated herein by reference
(14) Filed as an exhibit to Form 8-K, filed March 28, 2007, and incorporated herein by reference
(15) Filed as an exhibit to Form 8-K, filed September 27, 2007, and incorporated herein by reference
(16) Filed as an exhibit to Form 8-K, filed July 3, 2007, and incorporated herein by reference
(17) Filed as an exhibit to Form 10-Q, filed May 6, 2008, and incorporated herein by reference
(18) Filed as an exhibit to Form 8-K, filed July 7, 2008, and incorporated herein by reference
(19) Filed as an exhibit to Form 8-K, filed October 3, 2008, and incorporated herein by reference
(20) Filed as an exhibit to Form 10-K, filed December 8, 2008, and incorporated herein by reference
(21) Filed as an exhibit to Form 10-Q, filed May 11, 2009, and incorporated herein by reference
(22) Filed as a Form 8-K, filed January 22, 2009, and incorporated herein by reference
(23) Filed as an exhibit to Form 8-K, filed May 19, 2009, and incorporated herein by reference
(24) Filed as an exhibit to Form 10-K, filed November 10, 2009, and incorporated herein by reference
(25) Filed as an exhibit to Form 10-K/A (Amendment 3), filed June 22, 2010 and incorporated herein by reference
(26) Filed as an exhibit to Form 10-Q, filed February 9, 2010, and incorporated herein by reference
(27) Filed as an exhibit to Form 8-K, filed January 11, 2010, and incorporated herein by reference
(28) Filed as an exhibit to Form 8-K, filed March 1, 2010, and incorporated herein by reference
(29) Filed as an exhibit to Form 10-Q, filed May 10, 2010, and incorporated herein by reference
(30) Filed as an exhibit to Form 8-K, filed July 19, 2010, and incorporated herein by reference
(31) Filed as an exhibit to Form 8-K, filed August 11, 2010, and incorporated herein by reference
(32) Filed as an exhibit to Form 8-K, filed August 18, 2010, and incorporated herein by reference
(33) Filed as an exhibit to Form 8-K, filed August 18, 2010, and incorporated herein by reference
(34) Previously filed as an exhibit to Form 10-K filed November 22, 2010
(35) Previously filed as an exhibit to Form 10-K/A (Amendment 1) filed January 28, 2011
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.
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Tier Technologies, Inc.
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Dated: April 15, 2011
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By: /s/ Alex P. Hart
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Alex P. Hart
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President and Chief Executive Officer
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Exhibit 31.5
CERTIFICATIONS
I, Alex P. Hart, certify that:
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1.
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I have reviewed this Amendment No. 2 on Form 10-K/A of Tier Technologies, Inc.; and
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2.
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Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report.
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April 15, 2011
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/s/ Alex P. Hart
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Alex P. Hart
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President and Chief Executive Officer
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Exhibit 31.6
CERTIFICATIONS
I, John Guszak, certify that:
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1.
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I have reviewed this Amendment No. 2 on Form 10-K/A of Tier Technologies, Inc.; and
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2.
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Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report.
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April 15, 2011
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/s/ John Guszak
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John Guszak
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Interim Principal Financial Officer
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