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. 3)
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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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Amount of filing fee
Transaction valuation $86,154,144* $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.
Amount Previously Paid: $17,231
Form or Registration No.: Schedule TO-T/A
Filing Party: Tier Technologies, Inc.
Date Filed: June 20, 2002
[ ] 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. 3 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 11. Additional Information
(a)(5) On June 19, 2002, a purported class action complaint was filed
in the Delaware Court of Chancery against the Company, each of the Company's
directors, Parent and Purchaser (the "Complaint"). The Complaint purports to
assert claims on behalf of all public stockholders of the Company. The Complaint
alleges, among other things, that (i) the individual defendants breached a
fiduciary duty of disclosure by failing to disclose certain allegedly material
information in publicly-filed documents and (ii) Parent and Purchaser are acting
in violation of Section 203 of Delaware General Corporations Law by purportedly
failing to obtain the approval of the Company's board of directors before
becoming an "interested stockholder" (as that term is defined under Section
203) of the Company. The Complaint seeks, among other things, (1) certification
of this action as a class action, plaintiff as the class representative and the
attorneys as class counsel; (2) to enjoin the Offer; (3) an award of recissory
and/or monetary damages; and (4) such other relief as the Court deems equitable
and just, including attorneys' fees and costs.
The foregoing summary of the Complaint is qualified in its entirety by
reference to the Complaint, a copy of which is filed as Exhibit (a)(5)(C) hereto
and incorporated by reference herein.
On June 26, 2002, the parties to the Complaint entered into a
Memorandum of Understanding with respect to a proposed settlement of the
purported stockholder class action stockholder. The Memorandum of Understanding
provides for certain additional disclosure set forth in the Company's Amendment
No. 1 to the Schedule 14D-9 to be filed with the SEC and for full releases of
the defendants and certain related or affiliated persons and extinguishes all
claims that have been, could have been or could be asserted by or on behalf of
any member of the class against the defendants and/or any related or affiliated
persons which in any manner relate to the allegations, facts or other matters
raised in the lawsuits or which otherwise relate to the transactions
contemplated by the Merger Agreement, including the Offer and the Merger. The
Memorandum of Understanding provides for the payment of up to $175,000 of fees
and expenses for the plaintiff's counsel upon final approval of the settlement
of the actions. The final settlement of the Complaint, including the amount of
attorneys' fees to be paid, is subject to court approval and there can be no
assurance that such approval will be obtained.
The defendants to the lawsuits have denied that they have engaged in
any wrongdoing whatsoever, and have agreed to the Memorandum of Understanding to
eliminate the burden and expense of further litigation and to permit the Offer
and Merger to proceed as scheduled.
The foregoing summary of the Memorandum of Understanding is qualified
in its entirety by reference to the Memorandum of Understanding, a copy of which
is filed as Exhibit (a)(5)(D) hereto and is incorporated herein by reference.
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.
(a)(5)(C) Complaint of Roti v. Official Payments Corporation, et al.,
filed in the Court of Chancery of the State of Delaware on
June 19, 2002.
(a)(5)(D) Memorandum of Understanding, dated June 26, 2002, between
the parties to the Complaint.
(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 26, 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 26, 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.*
(a)(5)(C) Complaint of Roti v. Official Payments Corporation, et al.
filed in the Court of Chancery of the State of Delaware on
June 19, 2002.
(a)(5)(D) Memorandum of Understanding, dated June 26, 2002, between the parties
to the Complaint.
(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.