<PAGE>
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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): April 14, 2000 (March 30,
2000)
TIER TECHNOLOGIES, INC.
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C> <C>
CALIFORNIA 000-23195 94-3145844
(State or other jurisdiction of (Commission (IRS Employer Identification No.)
incorporation) File Number)
1350 TREAT BOULEVARD, SUITE 250 94596
Walnut Creek, California (Zip Code)
(Address of principal executive offices)
</TABLE>
(925) 937-3950
(Registrant's telephone number, including area code)
================================================================================
<PAGE>
Item 2. Acquisition or Disposition of Assets.
On March 30, 2000, Tier Technologies, Inc., a California corporation (the
"Company"), closed the sale of all outstanding shares of its wholly-owned
subsidiary, Midas Computer Software Limited ("Midas"), a company incorporated in
England and Wales to Ingleby (1283) Limited, a company incorporated in England
and Wales. Purchase consideration for the sale of the outstanding shares of
Midas, including repayment of intercompany debt of approximately $1.4 million
owed by Midas to the company, totaled approximately $3.7 million (net of
estimated selling expenses). Approximately $2.6 million was paid in cash upon
closing and approximately $1.3 million was attributable to a release of 51,074
shares of Tier Class B common stock and a share guarantee on the original Midas
acquisition.
Item 7. Financial Statements and Exhibits.
(b) Pro forma financial information.
Introduction
Pro Forma Condensed Consolidated Balance Sheet as of December 31, 1999
(unaudited)
Pro Forma Condensed Consolidated Statement of Income for the Quarter ended
December 31, 1999 (unaudited)
Pro Forma Condensed Consolidated Statement of Income for the Fiscal Year
ended September 30, 1999 (unaudited)
Notes to Pro Forma Condensed Consolidated Financial Statements (unaudited)
(c) Exhibits.
Exhibit No. Description
- ----------- -----------
2.1 Agreement for the Sale and Purchase of 51,074 Tier Shares
and of the Entire Share Capital of Midas Computer Software
Limiter, dated as of March 30, 2000.
2
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SIGNATURES
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.
TIER TECHNOLOGIES, INC.
By: /s/ Laura B. DePole
---------------------------
Laura B. DePole
Chief Financial Officer
Date: April 14, 2000
<PAGE>
Unaudited Pro Forma
Condensed Consolidated Financial Information
The unaudited pro forma condensed consolidated balance sheet as of December
31, 1999 set forth below gives effect to the sale of the wholly-owned
subsidiary, Midas Computer Software Limited ("Midas"), as if the sale had
occurred as of December 31, 1999. The unaudited condensed consolidated
statements of income for the quarter ended December 31, 1999 and the fiscal year
ended September 30, 1999 set forth below give effect to the sale of Midas had
occurred as of November 30, 1998 (the original acquisition date). The unaudited
pro forma condensed consolidated financial information set forth below contains
certain adjustments to exclude the assets, liabilities, and operating activity
of Midas and to reflect the proceeds from the sale of Midas.
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TIER TECHNOLOGIES, INC.
UNAUDITED PROFORMA CONDENSED CONSOLIDATED BALANCE SHEET AS OF DECEMBER 31, 1999
(in thousands)
<TABLE>
<CAPTION>
Acquisition Pro Forma
Adjustment (1) Company as of Adjustments
Company MIDAS Excluding Midas Pro Forma
------------ ------------ --------------- ------------
<S> <C> <C> <C> <C> <C> <C>
ASSETS
------
Current assets:
Cash & cash equivalents $10,446 $ 31 $10,415 2,563 (A) $12,978
Restricted cash 950 950 950
Investments 8,763 8,763 8,763
Accounts receivable, net 27,033 1,637 25,396 25,396
Prepaid expenses and other current
assets 2,968 112 2,856 2,856
------------ ------------ --------------- --------- -----------
Total current assets 50,160 1,780 48,380 2,563 50,943
Equipment and improvements, net 6,974 531 6,443 6,443
Notes and accrued interest receivable 1,466 1,466
from related parties 1,466
Investment in Midas 2,492 2,492 (2,492) (B) -
Intangible assets, net 25,414 2,044 23,370 23,370
Intercompany receivable 1,725 1,725 (1,725) (C) -
Other assets 2,433 2,433 2,433
------------ ------------ ------------ --------------- --------- -----------
Total assets $86,447 $ 4,355 $ 4,217 $86,309 $(1,654) $84,655
============ ============ ============ =============== ========= ===========
LIABILITIES AND SHAREHOLDERS' EQUITY
------------------------------------
Current liabilities:
Accounts payable $ 3,401 $ 784 $ 2,617 $ 2,617
Accrued liabilities 5,583 81 5,502 190 (D) 5,692
Accrued subcontractor expenses 568 568 568
Accrued compensation and related
liabilities 3,421 69 3,352 3,352
Intercompany payable 1,710 1,710 - -
Income taxes payable 291 291 291
Deferred income 1,417 1,417 1,417
Other current liabilities 399 91 308 308
------------ ------------ ------------ --------------- --------- -----------
Total current liabilities 15,080 2,735 1,710 14,055 190 14,245
Borrowings, less current portion 1,672 1,672 1,672
Other liabilities 351 185 166 166
------------ ------------ ------------ --------------- --------- -----------
Total liabilities 17,103 2,920 1,710 15,893 190 16,083
Shareholders' equity:
Common stock, no par value 65,935 3,751 3,751 65,935 (1,328) (E) 64,607
Notes receivable from shareholders (1,773) (1,773) (1,773)
Deferred compensation (292) (292) (292)
Accumulated other comprehensive
income (loss) (298) (298) (298)
Retained earnings 5,772 (2,316) (1,244) 6,844 (516) (F) 6,328
------------ ------------ ------------ --------------- --------- -----------
Total shareholders' equity 69,344 1,435 2,507 70,416 (1,844) 68,572
------------ ------------ ------------ --------------- --------- -----------
Total liabilities and shareholders'
equity $86,447 $ 4,355 $ 4,217 $86,309 $(1,654) $84,655
============ ============ ============ ================ ========= ===========
</TABLE>
See accompanying notes.
<PAGE>
TIER TECHNOLOGIES, INC.
UNAUDITED PRO FORMA CONDENSED CONSOLIDATED STATEMENTS OF INCOME
For the Quarter Ended December 31, 1999
(in thousands, except per share data)
<TABLE>
<CAPTION>
Company Midas Pro Forma
----------- ----------- -------------
<S> <C> <C> <C>
Revenues $ 24,613 $ 1,035 $ 23,578
Cost of revenues 14,847 $ 669 14,178
----------- ----------- -------------
Gross profit 9,766 366 9,400
Costs and expenses:
Selling and marketing 1,488 282 1,206
General and administrative 5,609 388 5,221
Other nonrecurring charges 1,750 1,450 300
Compensation charge related to business
combinations 60 60
Depreciation and amortization 1,258 172 1,086
----------- ----------- -------------
Income (loss) from operations (399) (1,926) 1,527
Interest income (interest expense), net 237 (1) 238
----------- ----------- -------------
Income (loss) before income taxes (162) (1,927) 1,765
Provision (benefit) for income taxes 548 (184) 732
----------- ----------- -------------
Net income (loss) $ (710) $ (1,743) $ 1,033
=========== =========== =============
Basic net income (loss) per share $ (0.06) $ 0.08
=========== =============
Shares used in computing basic net income
(loss) per share 12,230 12,179 (G)
=========== =============
Diluted net income (loss) per share $ (0.06) $ 0.08
=========== =============
Shares used in computing diluted net income
(loss) per share 12,230 12,660 (G)
=========== =============
</TABLE>
See accompanying notes.
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TIER TECHNOLOGIES, INC.
UNAUDITED PRO FORMA CONDENSED CONSOLIDATED STATEMENTS OF INCOME
For the Fiscal Year Ended September 30, 1999
(in thousands, except per share data)
<TABLE>
<CAPTION>
Company Midas Pro Forma
------------- ------------- ------------
<S> <C> <C> <C>
Revenues $91,976 $7,618 $84,358
Cost of revenues (includes depreciation and amortization
of $279 in 1999 and none in 1998) 56,236 5,324 50,912
------------- ------------- ------------
Gross profit 35,740 2,294 33,446
Costs and expenses:
Selling and marketing 6,095 828 5,267
General and administrative 18,988 1,302 17,686
Compensation charge related to business
combinations 608 608
Purchased in-process technology 4,000 4,000
Reserve for contract dispute 1,856 1,856
Depreciation and amortization 3,864 542 3,322
------------- ------------- ------------
Income (loss) from operations 329 (378) 707
Interest income (interest expense), net 1,321 (15) 1,336
------------- ------------- ------------
Income (loss) before income taxes 1,650 (393) 2,043
Provision (benefit) for income taxes 644 (153) 797
------------- ------------- ------------
Net income (loss) $ 1,006 $ (240) $ 1,246
============= ============== ============
Basic net income per share $ 0.08 $ 0.10
============= ============
Shares used in computing basic net income
per share 12,056 12,014 (H)
============= ============
Diluted net income per share $ 0.08 0.10
============= ============
Shares used in computing diluted net income
per share 12,869 12,745 (H)
============= ============
</TABLE>
See accompanying notes.
7
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NOTES TO PRO FORMA CONDENSED
CONSOLIDATED FINANCIAL STATEMENTS (unaudited)
Pro forma adjustments for the consolidated balance sheet as of December 31, 1999
and the consolidated statements of income for the quarter ended December 31,
1999 and the fiscal year ended September 30, 1999 are as follows:
(A) To record the proceeds from the sale of Midas
(B) To reverse the investment account in Midas
(C) To reverse the intercompany account
(D) To accrue the additional selling expenses
(E) To record the return of the Tier stock issued in the original purchase
(F) To record the loss on the sale of Midas
(G) Shares used in computing both basic and diluted net income (loss) per share
have been reduced by 42,258 weighted average shares as if the shares had not
been outstanding for the entire period. Shares used in computing diluted net
income per share have also been reduced by 101,970 weighted average shares
as if the share guarantee had not been outstanding for the entire period.
(H) Shares used in computing both basic and diluted net income per share have
been reduced by 51,074 weighted average shares as if the shares had not been
outstanding for the entire period. Shares used in computing diluted net
income per share have also been reduced by 81,602 weighted average shares
as if the share guarantee had not been outstanding for the entire period.
Acquisition Adjustment
(1) To reverse the consolidation of Midas
<PAGE>
DATED 30th March 2000
---------------------
(1) ROBERT WILLIAM THOMPSON, YVONNE JAYNE THOMPSON
DOMINIC FROST & IAN SMITH
(2) TIER TECHNOLOGIES, INC.
(3) INGLEBY (1283) LIMITED
(4) THE PARTIES NAMED IN SCHEDULE 1
AGREEMENT
---------
For the sale and purchase of
51,074 Tier Shares
and of the
entire issued share capital of
Midas Computer Software Limited
EVERSHEDS
S O L I C I T O R S
Senator House, 85 Queen Victoria Street
London EC4V 4JL
Tel: 0171 919 4500 Fax: 0171 919 4919
<PAGE>
THIS AGREEMENT is made on 30th March 2000
BETWEEN
- -------
(1) ROBERT WILLIAM THOMPSON, YVONNE JAYNE THOMPSON DOMINIC FROST and IAN
SMITH whose addresses are set out in Schedule 1 ("the Sellers");
----------
(2) TIER TECHNOLOGIES, INC., a company incorporated in California, whose
principal place of business is at 1350 Treat Blvd., Walnut Creek,
California ("Tier")
(3) INGLEBY (1283) LIMITED (Company No 3918477), a company incorporated in
England and Wales, whose registered office is at 55 Colmore Row,
Birmingham B3 3AS ("Ingleby")
(4) THE PERSONS WHOSE NAMES AND ADDRESSES ARE SET OUT IN SCHEDULE 2 (the
"1998 Parties")
OPERATIVE CLAUSES
- -----------------
1. Interpretation
In this Agreement:
1.1 the following expressions have the following meanings unless inconsistent
with the context:
Expression Meaning
---------- -------
"1998 Agreement" The agreement between the Sellers, the 1998 Parties
and Tier of 26th November 1998 pursuant to which
Tier acquired the Midas Shares
"Business Day" Any day (other than Saturday or Sunday) on which
Clearing Banks are open for a full range of banking
transactions
"Completion" Completion of the sale and purchase in accordance
with clause 8
--------
"the Loan" The demand loan currently owed by Midas to Tier
"Midas" Midas Computer Software Limited (Company number
03168419) a company incorporated in England and
Wales, whose registered office is care
1
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of Senator House, 85 Queen Victoria Street, London
EC4V 4JL
"the Midas Shares" All of the issued shares in the capital of Midas
"R Thompson No 1 Trust" The Robert William Thompson Discretionary
Settlement No 1 dated 26th November 1998 and made
between Robert Thompson (1) and Robert Thompson
and Yvonne Thompson (2)
"R Thompson No 2 Trust" The Robert William Thompson Discretionary
Settlement No 2 dated 26th November 1998 and made
between Robert Thompson (1) and Robert Thompson
and Yvonne Thompson (2)
"R Thompson No 3 Trust" The Robert William Thompson Discretionary
Settlement No 3 dated 26th November 1998 and made
between Robert Thompson (1) and Robert Thompson
and Yvonne Thompson (2)
"Robert Thompson" Robert William Thompson
"Yvonne Thompson" Yvonne Jayne Thompson
"Sellers' Solicitors" Wragge & Co. of 55 Colmore Row, Birmingham, B3 2AS
"Tier Directors" James Bildner, George Ross and William Barton
"Tier Shares" Class B Common Stock shares in Tier Technologies
Inc.
"Tier's Solicitors" Eversheds of Senator House, 85 Queen Victoria
Street, London EC4V 4JL
1.2 references to a document being "in the agreed form" will be construed as
references to that document in the form agreed and signed by or on behalf
of the relevant parties;
1.3 save where expressly stated to be made severally but not jointly, all
covenants, agreements, undertakings, indemnities, representations and
warranties on the part of two or more persons are given or made by such
persons jointly and severally;
1.4 references to clauses and Schedules are to clauses of and Schedules to this
Agreement;
1.5 the Schedules form part of this Agreement and will have the same force and
effect as if
2
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expressly set out in the body of this Agreement; and
1.6 the headings to the clauses of this Agreement will not affect its
construction.
2. Sale and purchase of Tier Shares and Release of Rights
2.1 Each of the Sellers agrees to sell, with full title guarantee, and the
Buyer agrees to buy, the number of the Tier Shares specified opposite that
Seller's name in Schedule 1.
----------
2.2 Each of the Tier Shares will be sold and bought free from any claim,
charge, lien, encumbrance, equity or third party right, and with all rights
attached or accruing to it including all rights to any dividends or other
distributions declared, made or paid on or after today's date.
2.3 Each of the Sellers waives and releases all of the outstanding rights
granted to such Seller under the 1998 Agreement, including, but not limited
to, the right to receive additional consideration under Clauses 3.3 and 4
of the 1998 Agreement, and waives and releases all of the outstanding
rights granted to such Seller under the guarantee given by Tier to each
such Seller under the Employment Agreements of 30th November 1998 between
each of the individual Sellers, Midas and Tier.
3. Consideration For Tier Shares and Release of Rights
3.1 The consideration for the sale of the Tier Shares and the above release of
rights shall be the sum of (Pounds)800,000 (Eight hundred thousand pounds)
which shall be allocated between the Sellers as shown in Part 1 of Schedule
1, which shall be split to allocate to the Tier Shares the value of the
Tier Shares as quoted on NASDAQ at the close of trading on the date
immediately preceding Completion and the balance to the release of such
rights.
3.2 In further consideration of the release of such rights and of the release
given in Clauses 2.3 and 9, Tier agrees that the balance of the retention
monies held in escrow under the 1998 Agreement (being (Pounds)171,200 (one
hundred and seventy one thousand two hundred pounds)), together with the
interest accruing thereon, shall be released to the order of the Sellers
and the 1998 Parties.
3.3 The Sellers and the 1998 Parties agree between themselves that
3.3.1 the sum of (Pounds)7,200 (seven thousand two hundred pounds) shall
be released to Robert Thompson, out of such retention monies in
recognition of the fact that he has previously settled liabilities
of (Pounds)36,000 (thirty six thousand pounds) on their behalf (of
which (Pounds)28,800 (twenty eight thousand eight hundred pounds)
has separately been reimbursed to him)
3.3.2 the balance of the retention monies (including accrued interest)
shall be paid to the Sellers and the 1998 Parties in the following
ratios:
3
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3.3.2.1 Robert Thompson 51%
3.3.2.2 Yvonne Thompson 29%
3.3.2.3 Dominic Frost 8.48%
3.3.2.4 Ian Smith 8.4%
3.3.2.5 1998 Parties 3.12%
and the Sellers agree amongst themselves to reinvest their share of such
monies into Ingleby as provided below.
4. Subscription For Shares in Ingleby
Each of the Sellers agree jointly and severally to reinvest the
consideration paid to him or her for the Tier Shares under clause 3 into
Ingleby, together with the monies released to him or her under Clause
3.3.2, and Dominic Frost and Ian Smith additionally agree to invest
(Pounds)(Pounds)2,492.80(two thousand four hundred and ninety two pounds
eighty pence) and (Pounds)2,624 (two thousand six hundred and twenty four
pounds) respectively in return for the issue to him or her of such number
of new Ordinary Shares of (Pounds)1 each in the capital of Ingleby as they
have previously agreed with Ingleby and Ingleby agrees to allot such Shares
to the Sellers.
5. Sale and purchase of Midas Shares and Loan
5.1 Tier agrees to sell, with full title guarantee, and Ingleby agrees to buy,
the Midas Shares and the Loan.
5.2 Each of the Midas Shares and the Loan will be sold and bought free from any
claim, charge, lien, encumbrance, equity or third party right, and with all
rights attached or accruing to it including all rights to any dividends or
other distributions declared, made or paid on or after today's date.
5.3 In consideration of Ingleby agreeing to buy the Midas Shares and the Loan,
Tier hereby warrants to Ingleby as follows:
5.3.1 Tier has full power to enter into and perform this Agreement which
constitutes binding obligations on Tier in accordance with its
terms;
5.3.2 All the Midas Shares are fully paid or are properly credited as
fully paid and Tier is the sole legal and beneficial owner of the
Midas Shares and the Midas Shares are free from all claims, charges,
lien, encumbrance, equity or third party rights (including rights of
pre-emption) of any nature whatsoever;
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5.3.3 Since 26 November 1998 none of the Tier Directors has approved any
transaction to be entered into by Midas other than transactions of
which at least one of the Sellers is aware.
6. Consideration For Midas Shares
The consideration for the sale of the Midas Shares and the Loan shall be
the sum of (Pounds)2,465,000 (two million four hundred and sixty five
thousand pounds) which shall be paid by Ingleby as provided in Clause 8.
7. Transitional Services
7.1 The Sellers and Ingleby shall procure that Midas shall provide transitional
accounting services (including but not limited to, provision of the
standard Midas monthly reporting package covering activity up to the date
of completion. This package shall be remitted to Tier within 5 Business
Days of completion. In addition the sellers and Ingleby shall procure that
Midas shall assist in the transfer of any copies of books or records for
Midas for historical record keeping and audit purposes for the period
through the date of completion, as well as any other financial information
or records that Midas may be holding for Tier Technologies (United Kingdom)
Inc ("Tier UK") or other Tier entities. Tier's auditors,
-------
PricewaterhouseCoopers may request a review of the quarterly financial
operations of Midas for the period January 1 2000 through the date of
completion as part of Tier's required quarterly review process. Ingleby
agrees to procure that Midas shall assist in facilitating this review as it
applies to Midas.
7.2 Tier, the Sellers and Ingleby agree that for a period of up to 90 days
following completion, or such lesser period as Tier shall notify Midas of
in writing, the Sellers and Ingleby shall procure that Midas shall provide
free of charge:
7.2.1 24 hour, 7 day per week availability and connectivity from the
Midas.co.uk LAN (local area network) to the Tier UK LAN at
Tier.co.uk via an integrated services digital network ("ISDN");
7.2.2 the routing of data traffic to and from the Tier UK LAN to the
Internet via the UU Net MCI 256,000 fractional T1 circuit and router
together with a Checkpoint firewall 1 firewall server;
7.2.3 rare escalation end user information technology support and full
support for Microsoft Windows NT server problems at the Tier UK
office by providing a network engineer available to provide such
services 24 hours a day, 7 days a week;
5
<PAGE>
7.2.4 Tier UK with the services of the Midas network engineer to install
and functionally test a four port remote access server card in the
Tier UK NT server located at the Tier UK site/office.
7.3 Tier, the Sellers and Ingleby further agree that for a period of up to 90
days following completion, or such lesser period as Tier shall notify
Midas of in writing (subject to a minimum of at least 14 days notice
being given, free of charge, Tier shall provide:
7.3.1 a fractional T1 (256,000) UU Net (MCI) circuit with a Checkpoint
firewall- 1 to internet access to the Internet ; and
7.3.2 services for the routing of e-mail from Tier.com e-mail addresses
to Midas e-mail addresses.
7.4 Tier accepts no responsibility for the quality of any services provided
under this clause 7 and Tier shall not be obliged to provide or procure
the provision of such services where the provider is unable to provide
such services because of circumstances beyond Tier's control. In such
circumstances Tier shall have no liability to Midas or any other party to
this Agreement in respect of any loss (whether consequential or not),
damage liability, costs and/or expenses suffered or incurred by Midas or
such third party as a result of such non performance.
8. Completion
The sale and purchase of the Tier Shares and the Midas Shares will be
completed at the offices of the Sellers' Solicitors immediately following
the signature of this Agreement, whereupon:
8.1 The Sellers will produce and deliver to Tier duly executed transfers of
the Tier Shares in favour of Tier (or as it will direct) together with
all relevant share certificates (or in the case of any lost certificate
an indemnity satisfactory to Tier in relation to it).
8.2 Tier shall issue a promissory note for the sum of (Pounds)800,000 (eight
hundred thousand pounds) to the Sellers in satisfaction of its
obligations under Clause 3. Each of the Sellers shall immediately endorse
such promissory note so that the sums are paid to Ingleby in partial
satisfaction of their obligations to subscribe for shares in Ingleby
under Clause 4 and Ingleby shall then endorse the promissory note in
favour of Tier in partial satisfaction of Ingleby's obligations to Tier
under Clause 6.
8.3 Each of Tier, the Sellers and the 1998 Parties shall issue an instruction
in the agreed form instructing Tier's Solicitors and the Sellers'
Solicitors in relation to the retention monies currently held by them and
each of the Sellers shall issue an instruction in the agreed form
instructing Tier's Solicitors to hold the monies released to them under
such instruction to the order of Ingleby in further satisfaction of their
obligations to subscribe
6
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for shares in Ingleby under Clause 4.
8.4 Dominic Frost and Ian Smith shall pay the additional monies due from them
to Ingleby under Clause 4 to Tier's Solicitors to hold the monies to the
order of Ingleby.
8.5 Ingleby shall issue fully paid new ordinary shares to the Sellers as
contemplated in Clause 4 and shall issue share certificates to each of
them in due course confirming such issue.
8.6 Ingleby shall issue an instruction in the agreed form instructing Tier's
Solicitors to pay the sums received by them under Clauses 8.3 and 8.4 to
the order of Tier in partial satisfaction of its obligations to pay for
the Midas Shares under Clause 6 and shall pay the sum of (Pounds)1501,000
(one million five hundred and one thousand pounds) to Tier's Solicitors
in satisfaction of the balance of the consideration for the Midas Shares.
8.7 Tier shall deliver the certificate of incorporation, certificate of
incorporation on change of name and the statutory books and registers
(all entered up to date) of Midas to the Sellers.
8.8 Tier will procure the written resignations of James Bildner, William
Barton and George Ross in the agreed form.
8.9 Tier will deliver to Ingleby and Midas a release of the assets included
within the debenture dated 9 July 1999 between Tier and Midas.
8.10 The Sellers shall deliver to Tier a release of the guarantee given by
Tier in respect of John Bressey's employment by Midas signed by John
Bressey in the agreed form.
8.11 Tier shall use its reasonable endeavours to procure the written
resignation of PricewaterhouseCoopers as auditors of Midas as soon as
reasonably practicable following Completion in the agreed form.
9. Cancellation of 1998 Agreement
In consideration of the entry of the Sellers and Tier into this
Agreement, the Sellers, the 1998 Parties and Tier hereby agree to
terminate the 1998 Agreement with immediate effect on the basis that none
of the parties to it shall have any rights under it against any of the
others and that in particular, but without limitation any rights or
obligations that have already accrued due are hereby cancelled.
10. Employee Share Options
10.1 The parties acknowledge and agree that any options held by any employee
of Midas (including the Sellers) under the rules of the Tier Technologies
Inc, Class B Common Stock Amended and Restated 1996 Equity Incentive Plan
("the Plan") and whose
7
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options are deemed to have vested as at today's date under the rules of
the Plan and the terms of grant of such options, shall be exercisable in
accordance with the rules of the Plan and the terms of grant of the
options, but only for so long as the rules and terms of grant provide,
but that any options granted to any such employee under the plan that
have not vested as at today's date shall automatically lapse.
10.2 In consideration of Tier's entry into this Agreement, the Sellers and
Ingleby hereby agree to indemnify and keep indemnified Tier and every
member of the Tier group of companies in respect of all damages, losses,
costs, liabilities and expenses arising from or in connection with the
lapse of any options as contemplated in clause 10.1.
11. Announcements
No announcement concerning the transactions contemplated by this
Agreement or any matter ancillary to it and no disclosure of the terms of
this Agreement will be made by the Sellers or the 1998 Parties except
with the prior written approval of Tier or by Tier (save as required by
law or the regulations of the Securities Exchange Commission or the
Nasdaq National Market) except with the prior written approval of any of
the Sellers.
12. Costs
Each party to this Agreement will bear such party's own costs and
expenses relating to the preparation and completion of this Agreement.
13. Notices
13.1 Any demand, notice or other communication given or made under or in
connection with this Agreement will be in writing.
13.2 Any such demand, notice or other communication will, if otherwise given
or made in accordance with this clause 13, be deemed to have been duly
given or made as follows:
13.2.1 if sent by prepaid first class post, on the second Business Day
after the date of posting or on the seventh Business Day in the
case of a notice to Tier; or
13.2.2 if delivered by hand, upon delivery at the address provided for
in this clause 13
provided however that, if it is delivered by hand on a day which is not a
Business Day or after 4 p.m. on a Business Day, it will instead be deemed
to have been given or made on the next Business Day.
13.3 Any such demand, notice or other communication will, in the case of
service by post or delivery by hand, be addressed (subject as provided in
this clause 13) to the recipient at the recipient's address stated in
this Agreement or at such other address as may from time to time be
notified in writing by the recipient to the sender as being the
recipient's
8
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address for service.
13.4 The provisions of this clause 13 will not apply, in the case of service
of process relating to any proceeding, suit or action, to the extent that
such provisions are inconsistent with Part 6 of the Civil Procedure
Rules.
14. General
14.1 This Agreement will be binding on and will enure for the benefit of each
party's successors, assigns and personal representatives (as the case may
be).
14.2 Except insofar as the same have been fully performed at Completion, each
of the agreements, obligations, and undertakings contained in this
Agreement will continue in full force and effect notwithstanding
Completion.
14.3 Failure or delay by any party in exercising any right or remedy under
this Agreement will not in any circumstances operate as a waiver of it,
nor will any single or partial exercise of any right or remedy in any
circumstances preclude any other or further exercise of it or the
exercise of any other right or remedy.
14.4 Any waiver of any breach of, or any default under, any of the terms of
this Agreement will not be deemed a waiver of any subsequent breach or
default and will in no way affect the other terms of this Agreement.
14.5 Tier may release or compromise the liability of, or grant time or any
other indulgence to, any person who is a party to this Agreement without
in any way prejudicing or affecting the liability (whether joint and
several or otherwise) of any other person who is a party to this
Agreement.
14.6 The rights and remedies expressly provided for by this Agreement will not
exclude any rights or remedies provided by law.
14.7 This Agreement may be executed in any number of counterparts, and by the
parties on separate counterparts, each of which so executed and delivered
will be an original, but all the counterparts will together constitute
one and the same agreement.
14.8 The parties will do anything which may be required on or after Completion
to vest in Ingleby legal and beneficial ownership of the Midas Shares and
to vest in Tier legal and beneficial ownership of the Tier Shares and
otherwise to give effect to the terms of this Agreement.
14.9 The formation, existence, construction, performance, validity and all
aspects whatsoever of this Agreement or of any term of this Agreement
shall be governed by English law. The English Courts shall have
jurisdiction to settle any disputes which may arise out of or in
connection with this Agreement.
9
<PAGE>
14.10 Each of the parties acknowledge that:
14.10.1 this Agreement and the documents referred to in it set forth
the entire agreement between the parties with respect to the
subject matter covered by it and supersede and replace all prior
communications, drafts, representations, warrants stipulations,
undertakings and agreements of whatsoever nature, whether oral or
written between the parties relating thereto;
14.10.2 it, he or she does not enter into this Agreement in reliance
on any warranty, representation, undertaking, stipulation or
agreement other than those contained in this Agreement;
14.10.3 its, his or her only remedies with respect to the subject
matter covered by this Agreement are for breach of contract;
14.10.4 it, he or she has no right to rescind this Agreement either
for breach of contract or for negligent or innocent
misrepresentation;
Provided that the provisions of this clause 14.10 will not exclude any
liability which any of the parties would otherwise have to any other or
any right which any party may have to rescind this Agreement in respect
of any fraud by any of the other parties prior to the execution of this
Agreement.
IN WITNESS of which the parties have today signed this Agreement or executed it
as a Deed as provided below
SCHEDULE 1
----------
The Sellers
-----------
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------
Name and address Number of Tier Shares to be Consideration to be received
---------------- --------------------------- ----------------------------
sold
----
- ----------------------------------------------------------------------------------------------
<S> <C> <C>
Robert Thompson of Catmint 26,048 (Pounds)408,000
Cottage, 2 Southcott, Pewsey,
Wiltshire SN9 5JF
- ----------------------------------------------------------------------------------------------
Yvonne Thompson of Catmint 14,812 (Pounds)232,000
Cottage, 2 Southcott, Pewsey,
Wiltshire SN9 5JF
- ----------------------------------------------------------------------------------------------
Dominic Frost of 261 5,107 (Pounds)80,000
Sandycombe Road, Kew,
Richmond, Surrey, TW9
- ----------------------------------------------------------------------------------------------
</TABLE>
10
<PAGE>
<TABLE>
- ----------------------------------------------------------------------------------------------
<S> <C> <C>
Ian Smith of 11 Ragdale, 5,107 (Pounds)80,000
Burghfield Common, Reading
RG7 3NG
- ----------------------------------------------------------------------------------------------
</TABLE>
11
<PAGE>
SCHEDULE 2
- ----------
The 1998 Parties
- ----------------
- --------------------------------------------------------------------------------
Name and address
----------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Raymond Frost care of 261 Sandycombe Road, Kew, Richmond, Surrey, TW9
- --------------------------------------------------------------------------------
Mary Frost care of 261 Sandycombe Road, Kew, Richmond, Surrey, TW9
- --------------------------------------------------------------------------------
Nicola Hitchin care of 261 Sandycombe Road, Kew, Richmond, Surrey, TW9
- --------------------------------------------------------------------------------
Marnie Brewster of 261 Sandycombe Road, Kew, Richmond, Surrey, TW9
- --------------------------------------------------------------------------------
Stewart John Smith care of 11 Ragdale, Burghfield Common, Reading RG7 3NG
- --------------------------------------------------------------------------------
Elaine Marjorie Smith care of 11 Ragdale, Burghfield Common, Reading RG7 3NG
- --------------------------------------------------------------------------------
Robert Thompson and Yvonne Thompson as trustees of the R Thompson No 1 Trust
- --------------------------------------------------------------------------------
Robert Thompson and Yvonne Thompson as trustees of the R Thompson No 2 Trust
- --------------------------------------------------------------------------------
Robert Thompson and Yvonne Thompson as trustees of the R Thompson No 3 Trust
- --------------------------------------------------------------------------------
Fiona Cashman care of Catmint Cottage, as above
- --------------------------------------------------------------------------------
Linda Birtles care of Catmint Cottage, as above
- --------------------------------------------------------------------------------
Joyce Thompson care of Catmint Cottage, as above
- --------------------------------------------------------------------------------
12
<PAGE>
SIGNED by Robert William Thompson )
in the presence of: )
Witness' signature:
Name:
Address:
Occupation:
SIGNED by Yvonne Jayne Thompson )
- ------
in the presence of: )
Witness' signature:
Name:
Address:
Occupation:
SIGNED by Dominic Frost )
- ------
in the presence of: )
Witness' signature:
Name:
Address:
Occupation:
SIGNED by Ian Smith )
in the presence of: )
Witness' signature:
Name:
Address:
Occupation:
13
<PAGE>
SIGNED by )
- ------
duly authorised to sign for and on )
behalf of Tier Technologies )
Inc. in the presence of: )
Witness' signature:
Name:
Address:
Occupation:
SIGNED by )
- ------
duly authorised to sign for and on )
behalf of Ingleby (1283) Limited in the presence of: )
Witness' signature:
Name:
Address:
Occupation:
EXECUTED as a Deed by Raymond Frost )
in the presence of: )
Witness' signature:
Name:
Address:
Occupation:
14
<PAGE>
EXECUTED as a Deed by Mary Frost )
in the presence of: )
Witness' signature:
Name:
Address:
Occupation:
EXECUTED as a Deed by Marnie Brewster )
in the presence of: )
Witness' signature:
Name:
Address:
Occupation:
EXECUTED as a Deed by Nicola Hitchin )
in the presence of: )
Witness' signature:
Name:
Address:
Occupation:
15
<PAGE>
EXECUTED as a Deed by Stewart John Smith )
in the presence of: )
Witness' signature:
Name:
Address:
Occupation:
EXECUTED as a Deed by Elaine Marjorie Smith )
in the presence of: )
Witness' signature:
Name:
Address:
Occupation:
EXECUTED as a Deed by Robert William )
Thompson as Trustee of the R Thompson No 1 )
Trust, the R Thompson No 2 Trust )
and the R Thompson No 3 Trust )
in the presence of: )
Witness' signature:
Name:
Address:
Occupation:
16
<PAGE>
EXECUTED as a Deed by Yvonne Jayne Thompson)
as Trustee of the R Thompson No 1 )
Trust, the R Thompson No 2 Trust )
and the R Thompson No 3 Trust )
in the presence of: )
Witness' signature:
Name:
Address:
Occupation:
EXECUTED as a Deed by Fiona Cashman )
in the presence of: )
Witness' signature:
Name:
Address:
Occupation:
EXECUTED as a Deed by Linda Birtles )
in the presence of: )
Witness' signature:
Name:
Address:
Occupation:
17
<PAGE>
EXECUTED as a Deed by Joyce Thompson )
in the presence of: )
Witness' signature:
Name:
Address:
Occupation:
18
