As
filed
with the Securities and Exchange Commission on August 9,
2005
Registration
No. 333-77051
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
______________
POST-EFFECTIVE
AMENDMENT NO. 1
TO
FORM
S-8
REGISTRATION
STATEMENT UNDER
THE
SECURITIES ACT OF 1933
______________
TIER
TECHNOLOGIES, INC.
(Exact
Name of Registrant as Specified in Its Charter)
|
Delaware
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94-3145844
|
|
(State
or Other Jurisdiction of Incorporation or Organization)
|
(I.R.S.
Employer Identification No.)
|
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10780
Parkridge Blvd., 4th Floor, Reston, Virginia
|
20191
|
|
(Address
of Principal Executive Offices)
|
(Zip
Code)
|
TIER
TECHNOLOGIES, INC.
AMENDED
AND RESTATED 1996 EQUITY INCENTIVE PLAN
(Full
Title of the Plan)
James
R. Weaver
President
and Chief Executive Officer
10780
Parkridge Blvd., 4th Floor
Reston,
VA 20191
(Name
and
Address of Agent For Service)
(571)
382-1090
(Telephone
Number, Including Area Code, of Agent For Service)
Copy
to:
Brent
B. Siler, Esq.
Wilmer
Cutler Pickering Hale and Dorr LLP
1455
Pennsylvania Avenue, N.W.
Washington,
D.C. 20004
(202)
663-6224
Explanatory
Note
This
Post-Effective Amendment to the Registration Statement on Form S-8 is being
filed pursuant to Rule 414 under the Securities Act of 1933, as amended (the
“Securities Act”), in connection with the reincorporation of Tier Technologies
Inc., a California corporation (“Tier California”), as a Delaware corporation.
The reincorporation was effected on July 15, 2005, pursuant to an Agreement
and
Plan of Merger dated as of July 1, 2005 (the “Merger Agreement”), by and between
Tier California and its wholly owned subsidiary, Tier Reincorporation, Inc.,
a
Delaware corporation (“Tier Reincorporation”). The Merger Agreement provides
for, among other things, the merger of Tier California with and into Tier
Reincorporation (the “Merger”). The Merger Agreement was approved by the
shareholders of Tier California on June 30, 2005, at a meeting for which
proxies
were solicited pursuant to Section 14(a) of the Securities Exchange Act of
1934,
as amended (the “Exchange Act”). On July 15, 2005, pursuant to the Merger, Tier
Reincorporation changed its name to Tier Technologies, Inc. (the “Registrant”).
As
a
result of the Merger (i) each share of Class B common stock, no par value,
of
Tier California was converted into a share of common stock, $0.01 par value,
of
the Registrant, (ii) each option and stock purchase right to acquire shares
of
Class B common stock of Tier California was converted into and became an
equivalent option or stock purchase right, as applicable, to acquire an equal
number of shares of common stock of the Registrant and (iii) the exercise
or
conversion price per share under each option and stock purchase right after
the
Merger remained equal to the exercise or conversion price per share prior
to the
Merger.
In
accordance with Rule 414 under the Securities Act, the Registrant, as successor
issuer to Tier California, hereby expressly adopts this registration statement
as its own for all purposes of the Securities Act and the Exchange Act. The
applicable registration fees were paid at the time of the original filing
of the
registration statement.
PART
II
INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
Item
3. Incorporation
of Documents by Reference.
The
Registrant is subject to the informational and reporting requirements of
Sections 13(a), 14, and 15(d) of the Exchange Act, and in accordance therewith
files reports, proxy statements and other information with the U.S. Securities
and Exchange Commission (the “Commission”). The following documents, which are
on file with the Commission, are incorporated in this registration statement
by
reference:
(a) The
Registrant’s latest annual report filed pursuant to Section 13(a) or 15(d)
of the Exchange Act or the latest prospectus filed pursuant to Rule 424(b)
under the Securities Act that contains audited financial statements for the
Registrant’s latest fiscal year for which such statements have been filed.
(b) All
other
reports filed pursuant to Section 13(a) or 15(d) of the Exchange Act since
the
end of the fiscal year covered by the document referred to in (a)
above.
(c) The
description of the securities contained in the Registrant’s registration
statement on Form 8-A filed under the Exchange Act, including any amendment
or
report filed for the purpose of updating such description.
All
documents subsequently filed by the Registrant pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-effective
amendment which indicates that all securities offered hereby have been sold
or
which deregisters all securities then remaining unsold, shall be deemed to
be
incorporated by reference in this registration statement and to be a part
hereof
from the date of the filing of such documents. Any statement contained in
a
document incorporated or deemed to be incorporated by reference herein shall
be
deemed to be modified or superseded for the purposes of this registration
statement to the extent that a statement contained herein or in any other
subsequently filed document which also is or is deemed to be incorporated
by
reference herein modifies or supersedes such statement. Any statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this registration statement.
Item
4. Description
of Securities.
Not
applicable.
Item
5. Interests
of Named Experts and Counsel.
Wilmer
Cutler Pickering Hale and Dorr LLP has opined as to the legality of the
securities being offered by this registration statement.
Item
6. Indemnification
of Directors and Officers.
Section 145
of the General Corporation Law of the State of Delaware provides that a
corporation has the power to indemnify a director, officer, employee or agent
of
the corporation and certain other persons serving at the request of the
corporation in related capacities against amounts paid and expenses incurred
in
connection with an action or proceeding to which he is or is threatened to
be
made a party by reason of such position, if such person shall have acted
in good
faith and in a manner he reasonably believed to be in or not opposed to the
best
interests of the corporation, and, in any criminal proceeding, if such person
had no reasonable cause to believe his conduct was unlawful; provided that,
in
the case of actions brought by or in the right of the corporation, no
indemnification shall be made with respect to any matter as to which such
person
shall have been adjudged to be liable to the corporation unless and only
to the
extent that the adjudicating court determines that such indemnification is
proper under the circumstances.
Article
EIGHTH of the Registrant’s Restated Certificate of Incorporation provides that
no director of the Registrant shall be personally liable for any monetary
damages for any breach of fiduciary duty as a director, except to the extent
that the Delaware General Corporation Law prohibits the elimination or
limitation of liability of directors for breach of fiduciary duty.
Article
EIGHTH of the Registrant’s Restated Certificate of Incorporation further
provides that a director or officer of the Registrant (a) shall be indemnified
by the Registrant against all expenses (including attorneys’ fees), judgments,
fines and amounts paid in settlement incurred in connection with any litigation
or other legal proceeding (other than an action by or in the right of the
Registrant) brought against him by virtue of his position as a director or
officer of the Registrant if he acted in good faith and in a manner he
reasonably believed to be in, or not opposed to, the best interests of the
Registrant, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful and (b) shall be
indemnified by the Registrant against all expenses (including attorneys’ fees)
and amounts paid in settlement incurred in connection with any action by
or in
the right of the Registrant brought against him by virtue of his position
as a
director or officer of the Registrant if he acted in good faith and in a
manner
he reasonably believed to be in, or not opposed to, the best interests of
the
Registrant, except that no indemnification shall be made with respect to
any
matter as to which such
person
shall have been adjudged to be liable to the Registrant, unless a court
determines that, despite such adjudication but in view of all of the
circumstances, he is entitled to indemnification of such expenses.
Notwithstanding the foregoing, to the extent that a director or officer has
been
successful, on the merits or otherwise, including, without limitation, the
dismissal of an action without prejudice, he is required to be indemnified
by
the Registrant against all expenses (including attorneys’ fees) incurred in
connection therewith. Expenses shall be advanced to a director or officer
at his
request, provided that he undertakes to repay the amount advanced if it is
ultimately determined that he is not entitled to indemnification for such
expenses.
Article
EIGHTH of the Restated Certificate of Incorporation further provides that
the
indemnification provided therein is not exclusive, and provides that in the
event that the Delaware General Corporation Law is amended to expand the
indemnification permitted to directors or officers the Registrant must indemnify
those persons to the full extent permitted by such law as so amended.
In
addition to the indemnification provisions noted above, Tier California entered
into indemnification agreements with its officers and directors indemnifying
them to the fullest extent not prohibited under California law. In addition,
the
Registrant entered into indemnification agreements with its officers and
directors that provide a contractual right to indemnification consistent
with
the provisions of its Restated Certificate of Incorporation. The Registrant’s
indemnification agreements govern events occurring on or after the Merger,
while
the Tier California indemnification agreements remain in full force and effect
with respect to events occurring prior to the effective date of the Merger.
The
Registrant has purchased directors’ and officers’ liability insurance that would
indemnify its directors and officers against damages arising out of certain
kinds of claims that might be made against them based on their negligent
acts or
omissions while acting in their capacity as such.
Item
7. Exemption
from Registration Claimed.
Not
applicable.
Item
8. Exhibits.
The
Exhibit Index immediately preceding the exhibits is incorporated herein by
reference.
Item
9. Undertakings.
1. The
undersigned Registrant hereby undertakes:
(1) To
file,
during any period in which offers or sales are being made, a post-effective
amendment to this registration statement:
(i) To
include any prospectus required by Section 10(a)(3) of the Securities
Act;
(ii) To
reflect in the prospectus any facts or events arising after the effective
date
of the registration statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a fundamental
change
in the information set forth in the registration statement; and
(iii) To
include any material information with respect to the plan of distribution
not
previously disclosed in the registration statement or any material change
to
such information in the registration statement;
provided,
however,
that
paragraphs (i) and (ii) do not apply if the information required to be included
in a post-effective amendment by those paragraphs is contained in periodic
reports filed with or furnished to the Commission by the Registrant pursuant
to
Section 13 or Section 15(d) of the Exchange Act that are incorporated by
reference in the registration statement.
(2) That,
for
the purpose of determining any liability under the Securities Act, each such
post-effective amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona
fide
offering
thereof.
(3) To
remove
from registration by means of a post-effective amendment any of the securities
being registered which remain unsold at the termination of the
offering.
2. The
undersigned Registrant hereby undertakes that, for purposes of determining
any
liability under the Securities Act, each filing of the Registrant’s annual
report pursuant to Section 13(a) or Section 15(d) of the Exchange Act that
is
incorporated by reference in the registration statement shall be deemed to
be a
new registration statement relating to the securities offered therein, and
the
offering of such securities at that time shall be deemed to be the initial
bona
fide
offering
thereof.
3. Insofar
as indemnification for liabilities arising under the Securities Act may be
permitted to directors, officers and controlling persons of the Registrant
pursuant to the foregoing provisions, or otherwise, the Registrant has been
advised that in the opinion of the Commission such indemnification is against
public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrant of expenses incurred
or
paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities
being
registered, the Registrant will, unless in the opinion of its counsel the
matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, as amended, the Registrant
certifies that it has reasonable grounds to believe that it meets all of
the
requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Reston, State of Virginia, on this 9th
day
of
August, 2005.
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TIER
TECHNOLOGIES, INC. |
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By: |
/s/ James
R. Weaver |
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James
R. Weaver
President
and Chief Executive Officer
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POWER
OF ATTORNEY AND SIGNATURES
We,
the
undersigned officers and directors of Tier Technologies, Inc., hereby severally
constitute and appoint James R. Weaver and David E. Fountain, and each of
them
singly, our true and lawful attorneys with full power to them, and each of
them
singly, to sign for us and in our names in the capacities indicated below,
the
registration statement on Form S-8 filed herewith and any and all subsequent
amendments to said registration statement, and generally to do all such things
in our names and on our behalf in our capacities as officers and directors
to
enable Tier Technologies, Inc. to comply with the provisions of the Securities
Act of 1933, as amended, and all requirements of the U.S. Securities and
Exchange Commission, hereby ratifying and confirming our signatures as they
may
be signed by our said attorneys, or any of them, to said registration statement
and any and all amendments thereto.
Pursuant
to the requirements of the Securities Act of 1933, as amended, this registration
statement has been signed by the following persons in the capacities and
on the
dates indicated.
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Signature
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Title
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Date
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/s/ James
R. Weaver
James
R. Weaver
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President
and Chief Executive Officer, Chairman of the Board, Director
(Principal
executive officer)
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August
9, 2005
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/s/
David E. Fountain
David
E. Fountain
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Senior
Vice President and Chief Financial Officer (Principal financial
and
accounting officer)
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August
9, 2005
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/s/
Charles
W. Berger
Charles
W. Berger
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Director
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August
9, 2005
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/s/
Samuel
Cabot III
Samuel
Cabot III
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Director
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August
9, 2005
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Signature
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Title
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Date |
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/s/
Morgan
P. Guenther
Morgan
P. Guenther
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August
9, 2005
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/s/
Ronald
L. Rossetti
Ronald
L. Rossetti
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August
9, 2005
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/s/
T.
Michael
Scott
T.
Michael Scott
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August
9, 2005
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/s/
Bruce
R.
Spector
Bruce
R. Spector
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Director
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August
9, 2005
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INDEX
TO EXHIBITS
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Number
|
Description
|
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2.1(1)
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Agreement
and Plan of Merger dated July 1, 2005, by and between the Registrant
and
Tier Reincorporation
|
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4.1(2)
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Restated
Certificate of Incorporation of the Registrant
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4.2(2)
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Amended
and Restated Bylaws of the Registrant
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4.3(2)
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Specimen
Common Stock Certificate of the Registrant
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5.1
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Opinion
of Wilmer Cutler Pickering Hale and Dorr LLP, counsel to the
Registrant
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23.1
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Consent
of PricewaterhouseCoopers LLP
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23.2
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Consent
of Wilmer Cutler Pickering Hale and Dorr LLP (included in Exhibit
5.1)
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24.1
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Power
of Attorney (included on the signature pages of this registration
statement)
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99.1(3)
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Amended
and Restated 1996 Equity Incentive Plan, dated January 28,
1999
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_____________
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(1)
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Filed
as an exhibit to the Registrant’s Current Report on Form 8-K dated June
28, 2005, filed on July 5, 2005, and incorporated herein by
reference.
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(2)
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Filed
as an exhibit to the Registrant’s Current Report on Form 8-K dated July
15, 2005, filed on July 19, 2005, and incorporated herein by
reference.
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(3)
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Filed
as an exhibit to the Registrant’s Quarterly Report on Form 10-Q,
filed on May 11, 2001, and incorporated herein by
reference.
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