SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE TO
TENDER OFFER STATEMENT UNDER SECTION 14(D)(1) OR 13(E)(1)
OF THE SECURITIES EXCHANGE ACT OF 1934
(AMENDMENT NO. 2)
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OFFICIAL PAYMENTS CORPORATION
(Name of Subject Company (Issuer))
KINGFISH ACQUISITION CORPORATION
a wholly-owned subsidiary of Tier Technologies, Inc.
and
TIER TECHNOLOGIES, INC.
(Names of Filing Persons (Offerors))
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COMMON STOCK, PAR VALUE $.01 PER SHARE
(Title of Class of Securities)
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676235 10 4
(CUSIP Number of Class of Securities)
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JAMES L. BILDNER
TIER TECHNOLOGIES, INC.
1350 TREAT BLVD., SUITE 250
WALNUT CREEK, CA 94596
TELEPHONE: (925) 937-3950
FACSIMILE: (925) 937-3752
(Name, address, and telephone numbers of person authorized to
receive notices and communications on behalf of filing persons)
Copies to:
BRUCE R. DEMING, ESQ.
JACK G. MARTEL, ESQ.
FARELLA BRAUN + MARTEL LLP
235 MONTGOMERY STREET, 30TH FLOOR
SAN FRANCISCO, CA 94104
TELEPHONE: (415) 954-4400
FACSIMILE: (415) 954-4480
Calculation of Filing Fee
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Transaction valuation $86,154,144* Amount of filing fee $17,231
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* For purposes of calculating the filing fee only. The filing fee calculation
assumes the purchase of all outstanding shares of common stock, par value
$0.01 per share, as well as the exercise of all exercisable and outstanding
stock options, of Official Payments Corporation at a price of $3.00 per
share, without interest. As of June 6, 2002, there were 22,952,876 shares
issued and outstanding and 5,765,172 shares underlying stock options. Based
on the foregoing, the transaction value is equal to the product of
28,718,048 shares and $3.00 per share. The amount of the filing fee
calculated in accordance with Rule 0-11 of the Securities Exchange Act of
1934, as amended, equals 1/50th of one percent of the value of the
transaction.
[X] Check the box if any part of the fee is offset as provided by Rule
0-11(a)(2) and identify the filing with which the offsetting fee was
previously paid. Identify the previous filing by registration statement
number, or the Form or Schedule and the date of its filing.
Amounts Previously Paid: An aggregate of $13,887 from three
overpayments ($9,634.35; $3,084.19; and
$1,168.46; respectively)
Forms or Registration No.: Registration No. 333-74192 (Forms S-3,
S-3/A and S-3MEF, respectively)
Filing Party: Tier Technologies, Inc.
Dates Filed: November 29, 2001; December 17, 2001 and December 18,
2001; respectively
[ ] Check the box if the filing relates solely to preliminary communications
made before the commencement of a tender offer.
Check the appropriate boxes below to designate any transactions to which
the statement relates:
[X] third-party tender offer subject to Rule 14d-1.
[ ] issuer tender offer subject to Rule 13e-4.
[ ] going-private transaction subject to Rule 13e-3.
[ ] amendment to Schedule 13D under Rule 13d-2.
Check the following box if the filing is a final amendment
reporting the results of the tender offer: [ ]
SCHEDULE TO
This Amendment No. 2 amends and supplements the Tender Offer Statement, as
amended, on Schedule TO ("Schedule TO") filed with the Securities and Exchange
Commission on June 11, 2002, relating to a tender offer by Kingfish Acquisition
Corporation, a Delaware corporation (the "Purchaser") and a wholly-owned
subsidiary of Tier Technologies, Inc., a California corporation ("Parent"), to
purchase all of the outstanding shares of common stock, par value $0.01 per
share (the "Shares"), of Official Payments Corporation, a Delaware corporation
(the "Company"), at a price of $3.00 per Share, net to the seller in cash,
without interest thereon, upon the terms and subject to the conditions set forth
in the Offer to Purchase, dated June 11, 2002 and in the related Letter of
Transmittal (which, together with any supplements or amendments, collectively
constitute the "Offer"). Capitalized terms used and not otherwise defined shall
have the meanings assigned to such terms in the Offer to Purchase.
Item 1. Summary Term Sheet
The first sentence on the cover page of the Offer to Purchase is hereby
amended to read as follows:
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, NEW
YORK CITY TIME, ON TUESDAY, JULY 9, 2002, UNLESS THE OFFER IS
EXTENDED.
Question and Answer No. 4 on page 1 of the Offer to Purchase is hereby
amended to read as follows:
4. Q. HOW LONG DO I HAVE TO DECIDE WHETHER TO TENDER IN THE OFFER?
A. You have until 12:00 midnight, New York City time, on July 9,
2002. Under certain circumstances, we may extend the offer. If
the offer is extended, we will issue a press release announcing
the extension on the first business morning following the date
the offer was scheduled to expire. See Section 1.
Question and Answer No. 12 on page 2 of the Offer to Purchase is hereby
amended to read as follows:
12. Q. HAVE ANY STOCKHOLDERS ALREADY DECIDED TO TENDER THEIR SHARES?
A. Yes. Comerica Incorporated, Beranson Holdings, Inc. and Michaella
Stern, the controlling stockholder of Beranson Holdings and widow
of Kenneth Stern, Official Payments' founder and former president
and director, have each agreed to tender all of their outstanding
shares of Official Payments stock and shares underlying Official
Payments stock options in the offer. Their shares represent
approximately 14.6 million shares of issued and outstanding
common stock. These shares represent approximately 63.8% of the
issued and outstanding shares of Official Payments and
approximately 55.8% of the shares on a fully-diluted basis
(giving effect to the exercise of all options exercisable at an
exercise price of $3.00 or less per share, whether or not
exercised at the time of determination).
Item 2. Subject Company Information
(b) The second sentence of the first paragraph on page 6 of the Offer to
Purchase is amended to read as follows:
The term "Expiration Date" means 12:00 midnight, New York City time,
on July 9, 2002, unless and until Purchaser, in accordance with the
terms of the Offer, but subject to the limitations set forth in the
Merger Agreement, extends the period of time for which the Offer is
open, in which event the term "Expiration Date" means the time and
date at which the Offer, as so extended by Purchaser, will expire.
The last sentence of the first full paragraph on page 7 of the Offer to
Purchase is amended to read as follows:
For purposes of the Offer, a "business day" means any day other than a
Saturday, Sunday or a Federal holiday and consists of the time period
from 12:01 a.m. through 12:00 midnight, New York City time.
The fourth sentence of the second full paragraph on page 7 of the Offer to
Purchase is amended to read as follows:
In telephone interpretations released in July 2001, the SEC expressed
the view that adding a Subsequent Offering Period would not require
advance notice provided the following conditions were satisfied: (a)
the initial offering material disclosed that the Purchaser may include
a Subsequent Offering Period and describes what a Subsequent Offering
Period is; (b) in the notice announcing the results of the initial
Offer period required by Rule 14d-11(d), Purchaser announces and
begins the Subsequent Offering Period; and (c) if Purchaser has
definitively decided or is contractually obligated to provide a
Subsequent Offering Period, the initial offer to purchase must
disclose this information and may not merely reserve the right to
provide a Subsequent Offering Period. However, if Purchaser announces
that it will provide a Subsequent Offering Period and later decides
not to provide such a period, that would constitute a material change
to the Offer which would require five days' advance notice.
Item 4. Terms of the Transaction
(a)(1)(i-viii, xii) The information contained in Item 2(b) above is
incorporated by reference herein.
The paragraph beginning on page 11 and continuing onto page 12 of the
Offer to Purchase is amended to read as follows:
EACH STOCKHOLDER IS URGED TO CONSULT HIS OR HER TAX ADVISOR WITH
RESPECT TO THE PARTICULAR TAX CONSEQUENCES TO HIM OR HER OF THE OFFER
AND THE MERGER, INCLUDING FEDERAL, STATE, LOCAL, FOREIGN AND OTHER TAX
CONSEQUENCES.
The first paragraph under the heading "14. CERTAIN CONDITIONS OF THE
OFFER" on page 27 of the Offer to Purchase is amended to read as follows:
For the purposes of this Section 14, capitalized terms used but
not defined herein will have the meanings set forth in the Merger
Agreement. In all events, all conditions to the Offer, other than
those dependent on the receipt of necessary government approvals, must
be satisfied or waived before the expiration of the Offer.
Notwithstanding any other provisions of the Offer, Purchaser shall not
be required to accept for payment or, subject to any applicable rules
and regulations of the SEC, including Rule 14e-1(c) under the Exchange
Act (relating to Purchaser's obligation to pay for or return tendered
Shares promptly after termination or withdrawal of the Offer), pay
for, and may delay the acceptance for payment of or, subject to the
restriction referred to above, the payment for, any tendered Shares,
and may terminate or amend the Offer, if (i) any applicable waiting
period under the HSR Act has not expired or terminated, (ii) the
Minimum Condition has not been satisfied, or (iii) at any time on or
after May 30, 2002 and (except in the case of clause (a), (b) or (g))
continuing in effect for a period of 10 days following notice by the
Parent to the Company, any of the following events shall occur (other
than as a result of any action or inaction of Parent or any of its
subsidiaries which constitutes a breach of this Agreement):
The paragraph immediately following paragraph (h) on page 28 of the
Offer to Purchase is amended to read as follows:
which in the reasonable judgment of Parent or Purchaser, in any such
case, and regardless of the circumstances giving rise to such
condition makes it inadvisable to proceed with the Merger, the Offer
and/or with such acceptance for payment of or payment for Shares.
The first full paragraph on page 29 of the Offer to Purchase is
amended to read as follows:
The foregoing conditions are for the sole benefit of Parent and
Purchaser, may be waived by Parent or Purchaser, in whole or in part,
at any time and from time to time, prior to the expiration of the
Offer, in the sole discretion of Parent or Purchaser. The failure by
Parent or Purchaser at any time to exercise any of the foregoing
rights shall not be deemed a waiver of any such right and each such
right shall be deemed an ongoing right which may be asserted at any
time and from time to time. Notwithstanding the preceding two
sentences, all conditions to the Offer, other than those dependent on
the receipt of necessary government approvals, must be satisfied of
waived before the expiration of the Offer.
Item 7. Source and Amount of Funds or Other Consideration
(a) The last sentence of the paragraph under the heading "12. SOURCE AND
AMOUNT OF FUNDS" on page 27 of the Offer to Purchase is amended to read as
follows:
Parent expects to fund any necessary capital contributions or advances
to Purchaser through the use of cash on hand and other internally
generated funds.
Item 11. Additional Information
(a) The information contained in Item 2(b) above is incorporated by
reference herein.
(b) On June 20, 2002, Parent issued a press release regarding extension of
the Offer until 12:00 midnight, New York City time, on July 9, 2002, the full
text of which is filed as Exhibit (a)(5)(B) to this Amendment No. 2 on Schedule
TO and incorporated by reference herein.
Item 12. Exhibits
(a)(1)(A) Offer to Purchase, dated February 25, 2000.
(a)(1)(B) Letter of Transmittal.
(a)(1)(C) Notice of Guaranteed Delivery.
(a)(1)(D) Form of letter to clients for use by Brokers, Dealers, Commercial
Banks, Trust Companies and Nominees.
(a)(1)(E) Form of letter to Brokers, Dealers, Commercial Banks, Trust
Companies and Other Nominees.
(a)(1)(F) Guidelines for Certification of Taxpayer Identification Number on
Substitute Form W-9.
(a)(1)(G) Press release issued by Parent and Purchaser, dated June 11,
2002, announcing the commencement of the Offer.
(a)(1)(H) Summary Advertisement, dated June 11, 2002, appearing in the Wall
Street Journal.
(a)(5)(A) Press release issued by Parent, dated June 17, 2002, announcing
termination of the waiting period under the Hart-Scott-Rodino
Act.
(a)(5)(B) Press release issued by Parent, dated June 20, 2002, regarding
extension of the Offer until 12:00 midnight, New York City time,
on July 9, 2002.
(b) Not applicable.
(d)(1) Agreement and Plan of Merger, dated as of May 30, 2002, by and
among Parent, Purchaser and the Company.
(d)(2) Stockholders Agreement, dated as of May 30, 2002, by and among
Parent, Purchaser and the holders of Shares parties thereto.
(d)(3) Confidentiality Agreement, dated April 17, 2002, by and between
Parent and the Company.
(d)(4) Form of Employment Agreement.
(g) Not applicable.
(h) Not applicable.
Signature. After due inquiry and to the best of their knowledge and belief, the
undersigned certify that the information set forth in this statement is true,
complete and correct.
KINGFISH ACQUISITION CORPORATION
By: /s/ James L. Bildner
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Name: James L. Bildner
Title: President and Chief Executive Officer
Date: June 20, 2002
TIER TECHNOLOGIES, INC.
By: /s/ James L. Bildner
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Name: James L. Bildner
Title: Chairman and Chief Executive Officer
Date: June 20, 2002
EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION
(a)(1)(A) Offer to Purchase, dated June 11, 2002.*
(a)(1)(B) Letter of Transmittal.*
(a)(1)(C) Notice of Guaranteed Delivery.*
(a)(1)(D) Form of letter to clients for use by Brokers, Dealers, Commercial
Banks, Trust Companies and Nominees.*
(a)(1)(E) Form of letter to Brokers, Dealers, Commercial Banks, Trust
Companies and Nominees.*
(a)(1)(F) Guidelines for Certification of Taxpayer Identification Number on
Substitute Form W-9.*
(a)(1)(G) Press release issued by Parent and Purchaser, dated June 11, 2002,
announcing the commencement of the Offer.*
(a)(1)(H) Summary Advertisement, dated June 11, 2002, appearing in the Wall
Street Journal.*
(a)(5)(A) Press release issued by Parent, dated June 17, 2002, announcing
termination of the waiting period under the Hart-Scott-Rodino Act.*
(a)(5)(B) Press release issued by Parent, dated June 20, 2002, regarding
extension of the Offer until 12:00 midnight, New York City time, on
July 9, 2002.
(d)(1) Agreement and Plan of Merger, dated as of May 30, 2002, by and among
Parent, Purchaser and the Company.*
(d)(2) Stockholders Agreement, dated as of May 30, 2002, by and among
Parent, Purchaser and the holders of Shares parties thereto.*
(d)(3) Confidentiality Agreement, dated April 17, 2002, by and between
Parent and the Company.*
(d)(4) Form of Employment Agreement.*
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* Previously filed.