EXHIBIT 10.8
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TIER TECHNOLOGIES, INC.
SERIES A CONVERTIBLE PREFERRED STOCK PURCHASE AGREEMENT
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TABLE OF CONTENTS
1. Purchase and Sale of Shares........................................ 1
1.1 Sale and Issuance of Shares.................................... 1
1.2 Closing........................................................ 2
2. Representations and Warranties of the Company to the Investors..... 2
2.1 Corporate Organization and Authority........................... 2
2.2 Capitalization................................................. 3
2.3 Authorization.................................................. 4
2.4 Validity of Shares............................................. 4
2.5 Subsidiaries................................................... 5
2.6 Title to Properties and Assets, Liens, etc..................... 5
2.7 Material Contracts............................................. 5
2.8 Patents, Trademarks, etc....................................... 5
2.9 Compliance with Other Instruments.............................. 6
2.10 Employees..................................................... 7
2.11 Litigation, etc............................................... 8
2.12 Registration Rights........................................... 8
2.13 Governmental Consent, etc..................................... 8
2.14 Insurance..................................................... 9
2.15 Taxes......................................................... 9
2.16 Transactions with Principals.................................. 9
2.17 Financial Statements.......................................... 10
2.18 Changes....................................................... 10
2.19 Disclosure.................................................... 11
3. Representations and Warranties of the Investors.................... 11
3.1 Authorization.................................................. 11
3.2 Private Offering............................................... 11
3.3 Purchase Entirely for Own Account.............................. 11
3.4 Restricted Securities.......................................... 12
3.5 Qualifications................................................. 12
4. Legends............................................................ 13
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5. Conditions to Obligations of the Investors.......................... 14
5.1 Representations and Warranties Correct;
Performance of Obligations..................................... 14
5.2 Opinion of Company's Counsel.................................... 14
5.3 Consents and Waivers............................................ 14
5.4 Investors' Rights Agreement..................................... 15
5.5 Certificate of Determinations................................... 15
5.6 Secretary's Certificate......................................... 15
5.7 Compliance Certificate.......................................... 15
5.8 Proceedings and Documents....................................... 15
6. Conditions of the Company's Obligations at Closing.................. 16
6.1 Representations and Warranties.................................. 16
6.2 Payment of Purchase Price....................................... 16
6.3 Qualifications.................................................. 16
6.4 Investor's Rights Agreement..................................... 16
6.5 Offeree Questionnaire........................................... 16
7. Miscellaneous....................................................... 16
7.1 Entire Agreement; Successors and Assigns........................ 16
7.2 Governing Law................................................... 17
7.3 Counterparts.................................................... 17
7.4 Headings........................................................ 17
7.5 Notices......................................................... 17
7.6 Amendment of Agreement or Waiver................................ 18
7.7 Expenses........................................................ 18
EXHIBIT AND SCHEDULES
Exhibit A Certificate of Determination
Exhibit B Investors' Rights Agreement
Exhibit C Offeree Questionnaire
Exhibit D Form of Opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇ LLP
Schedule 1 Investors
Schedule 2 Company Disclosure Schedule
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SERIES A CONVERTIBLE PREFERRED STOCK PURCHASE AGREEMENT
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THIS SERIES A CONVERTIBLE PREFERRED STOCK PURCHASE AGREEMENT (the
"Agreement") is made as of July 28, 1997, by and among TIER TECHNOLOGIES, INC.,
a California corporation (the "Company"), and the persons listed on Schedule 1
who are signatories to this Agreement (each, an "Investor").
RECITALS:
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A. The Board of Directors of the Company has adopted the Certificate of
Determination in the form attached hereto as Exhibit A (the "Certificate of
Determination") which establishes the rights, preferences and privileges of the
Company's Series A Convertible Preferred Stock, no par value (the "Shares").
B. The Company desires to sell the Shares to the Investors, and the
Investors desire to purchase Shares, on the terms and subject to the conditions
set forth in this Agreement.
THE PARTIES HERETO HEREBY AGREE AS FOLLOWS:
1. Purchase and Sale of Shares.
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1.1 Sale and Issuance of Shares. Subject to the terms and conditions
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of this Agreement, each Investor agrees, severally, to purchase at the Closing
and the Company agrees to sell and issue to each Investor at the Closing, that
number of Shares set forth opposite each Investor's name on Schedule 1 hereto,
at a price of $5.25 per share (the "Purchase Price"), for an aggregate not to
exceed 420,953 Shares.
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1.2 Closing. The purchase and sale of the Shares shall take place at
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3 p.m. on July 28, 1997, at the offices of ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, ▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or on such other
dates and at such times as the Company and the Investors mutually agree (the
"Closing"). At the Closing, the Company shall deliver to each Investor a
certificate representing the Shares which such Investor is purchasing against
delivery to the Company by such Investor at such Closing of (a) an executed
counterpart of this Agreement, (b) an executed counterpart of the Shareholders'
Rights Agreement, a copy of which is attached here to as Exhibit B, and (c) the
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Purchase Price of such Shares by (i) a wire transfer to the Company, as follows:
WestAmerica Bank
▇▇▇▇ ▇▇. ▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn. ▇▇▇▇▇ ▇. ▇▇▇▇▇
ABA # ▇▇▇▇▇▇▇▇▇
Tel: (510) 935-515
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
For the account of:
TIER Technologies, Inc.
Operating Account #▇▇▇▇-▇▇▇▇▇▇
Contact: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇, ext. 167
or (ii) a cashier's check payable to the Company.
2.. Representations and Warranties of the Company to the Investors.
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Except as set forth on Schedule 2, the Company hereby represents and warrants to
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the Investors that:
2.1 Corporate Organization and Authority. The Company:
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(a) is a corporation duly organized, validly existing,
authorized to exercise all its corporate powers, rights and privileges, and in
good standing in the State of California;
(b) has the corporate power and authority to own and operate its
properties and to carry on its business as now conducted and as proposed to be
conducted; and
(c) is qualified as a foreign corporation in all jurisdictions
in which such qualification is required; provided, however, that the Company
need not be qualified in a jurisdiction in which its failure to qualify would
not have a material adverse effect on the business, properties, prospects or
financial condition of the Company.
2.2 Capitalization. Except as set forth in Schedule 2, immediately
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prior to the Closing, the authorized capital of the Company shall consist of:
(a) Preferred Stock. Five Million (5,000,000) shares of
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Preferred Stock, 420,953 of which are designated as Series A Convertible
Preferred Stock. No Preferred Stock was issued and outstanding immediately prior
to Closing.
(b) Class A Common Stock. Two Million, Four Hundred Thousand
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(2,400,000) shares of Class A Common Stock, 2,380,000 of which are issued and
outstanding.
(c) Class B Common Stock. Twelve Million, Six Hundred Thousand
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(12,600,000) shares of Class B Common Stock, 3,240,000 of which are issued and
outstanding.
(d) All outstanding shares of the Company's Class A and Class B
Common Stock, have been duly and validly issued (including, without limitation,
issued in
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compliance with applicable federal and state securities laws), and are fully-
paid, nonassessable and held by the persons and in the amounts set forth on
Schedule 2.
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(e) Other Securities. Except as set forth on Schedule 2, as
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contemplated by this Agreement, there are no outstanding warrants, options,
conversion privileges, preemptive rights, or other rights or agreements to
purchase or otherwise acquire or issue any equity securities of the Company.
2.3 Authorization. All corporate action on the part of the Company,
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its officers, directors and shareholders, necessary for the authorization,
execution, delivery and performance of all obligations under this Agreement and
the Investors' Rights Agreement and for the issuance and delivery of the Shares
and of the Common Stock issuable upon conversion of the Shares has been or will
be taken prior to the Closing, and this Agreement and the Investors' Rights
Agreement constitute legally binding valid obligations of the Company
enforceable in accordance with their terms.
2.4 Validity of Shares. Subject to the truth and accuracy of the
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representations and warranties of the Investors in Section 3 hereof, the Shares,
when issued, sold and delivered in accordance with the terms and for the
consideration expressed in this Agreement, shall be duly and validly issued
(including, without limitation, compliance with applicable federal and state
securities laws), fully-paid and nonassessable. The Class B Common Stock
issuable upon conversion of the Shares, assuming such Class B Common Stock is
issued to the Investors, upon issuance in accordance with the Articles and this
Agreement, shall be duly and validly issued
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(including, without limitation, issued in compliance with all applicable federal
and state securities laws), fully paid and nonassessable.
2.5 Subsidiaries. The Company does not control, directly or
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indirectly, or have an interest in, any other corporation, association or
business entity and is not a party to any verbal or written agreement relating
to the foregoing.
2.6 Title to Properties and Assets, Liens, etc. The Company owns its
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property and assets free and clear of all mortgages, liens, loans and
encumbrances, other than encumbrances and liens resulting from taxes which have
not yet become delinquent and liens and encumbrances which arise in the ordinary
course of business and which do not materially impair the Company's ownership or
use of such property or assets.
2.7 Material Contracts. The Company is not a party to any agreement,
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instrument, license, lease, or contract which is not in the ordinary course of
business of the Company requiring payment by or to the Company of an amount in
excess of $500,000 during any 12-month period. The Company has entered into
written or oral agreements with each customer that accounted for more than 1.0%
of the Company's revenue during the six-month period ended June 30, 1997 (the
"Contracts"). Each customer that is a party to a Contract is listed on Schedule
2.
2.8 Patents, Trademarks, etc. To the Company's knowledge (but
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without having conducted any special investigation or patent search), the
Company owns, or has the right to use (or reasonably believes that it can obtain
the right to use on reasonable commercial terms), all patents, trademarks,
service marks, trade names, copyrights, trade secrets or other proprietary
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rights necessary to its business as now conducted or proposed to be conducted,
the lack of which would have a material adverse effect on the business of the
Company, as a whole. The Company has not received a notice that it is
infringing upon or otherwise acting adversely to the right or claimed right of
any person under or with respect to any patent, trademark, service ▇▇▇▇, trade
name, copyright, trade secret, or other proprietary right, and, to the Company's
knowledge, there is no reasonable basis for any such claim. The Company is not
aware of any material violation by a third party of any of the Company's
patents, trademarks, service marks, trade names, copyrights, trade secrets or
other proprietary rights. The Company is not aware that any of its key
employees is obligated under any contract (including licenses, covenants or
commitments of any nature) or agreement, or subject to any judgment, decree or
order of any court or administrative agency, that would interfere with their
duties to the Company or that would conflict with the Company's business as
currently conducted as and described in the Memorandum (as defined below).
Neither the execution nor delivery of this Agreement, nor the carrying on of the
Company's business by the employees of the Company, nor the conduct of the
Company's business as proposed, will, to the Company's knowledge, conflict with
or result in a breach of the terms, conditions or provisions of, or constitute a
default under, any contract, covenant or instrument under which any employee is
now obligated.
2.9 Compliance with Other Instruments. The Company is not in
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violation of (i) its charter documents, as amended, or (ii) any mortgage,
indenture, Contract, judgment, decree or order by which the Company is bound or
to which its properties are subject or, to the Company's knowledge, any statute,
rule, or regulation applicable to the Company, except for any violation under
clause (ii) of this sentence that would not materially adversely affect the
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business, assets, liabilities, financial condition, operations or prospects of
the Company or for which a waiver has been obtained. Assuming the filing of the
Certificate of Determination, the execution, delivery and performance of and
compliance with this Agreement and the Investors' Rights Agreement and the
transactions provided for herein and therein will not result in any such
violation and will not be in conflict with, require a consent under or
constitute a default under any of the foregoing and will not result in the
creation of any mortgage, pledge, lien, encumbrance or charge upon any of the
properties or assets of the Company pursuant to any of the foregoing. To the
Company's knowledge, the Contracts are valid and binding and in full force and
effect in all respects, and the Company has not been notified by any party
thereto of any such party's intention or desire to terminate or modify any of
such Contracts, or of any claim or threat that the Company has breached any of
such Contracts.
2.10 Employees. To the Company's knowledge, no key employee of the
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Company is in violation of any term of any employment contract, patent
disclosure agreement or any other contract or agreement relating to the right of
any such key employee to be employed by the Company because of the nature of the
business conducted or to be conducted by the Company or for any other reason,
except for any violation that would not materially, adversely affect the
business, assets, liabilities, financial condition, operations or prospects of
the Company, and, to the Company's knowledge, the continued employment by the
Company of its present key employees will not result in any such violations.
Other than the plans referred to in the Company's Confidential Private Placement
Memorandum dated July 18, 1997 relating to the offer of the Shares (the
'Memorandum'), the Company has no deferred compensation, pension, profit-sharing
or any other similar employee benefit plans or arrangements covering any of its
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officers or employees. To the Company's knowledge, there are no asserted
controversies or labor disputes or union organization activities pending or
threatened between it and its employees. To the Company's knowledge, the
Company has complied with all applicable state and federal equal employment
opportunity and other laws related to employment where failure to so comply
would have a material adverse effect on the business of the Company.
2.11 Litigation, etc. There are no actions, suits, proceedings or
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governmental investigations pending or, to the Company's knowledge, threatened
against the Company which, either in any case or in the aggregate, would result
in any material adverse change in the business, prospects, affairs or operations
of the Company, or in any material impairment of the right or ability of the
Company to carry on its business, or in any material liability on the part of
the Company, and none which questions the validity of this Agreement or the
Investors' Rights Agreement or any action taken or to be taken in connection
herewith or therewith. The Company is not a party or subject to any writ,
order, decree or judgment, and there is no action, suit or proceeding currently
pending that the Company has originated.
2.12 Registration Rights. Except as provided in the Investors'
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Rights Agreement, the Company is not under any obligation to register any
presently outstanding securities under the Securities Act of 1933, as amended
(the "Securities Act").
2.13 Governmental Consent, etc. To the Company's knowledge, no
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consent, approval or authorization of, or designation, declaration or filing
with any governmental authority on the part of the Company is required in
connection with the valid execution and delivery of this Agreement or the
Investors' Rights Agreement, or the offer, sale or issuance of
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the Shares or the Class B Shares issuable upon conversion of the Shares or the
consummation of any other transaction provided for herein or therein, except the
filing of the Certificate of Determinations with the California Secretary of
State and, if required, qualifications or filings under the Securities Act and
applicable state and foreign securities laws, which qualifications or filings,
if required, will be obtained or made and will be effective within the time
periods required by law.
2.14 Insurance. The insurance coverage of the Company is described,
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in summary form, in Schedule 2.
2.15 Taxes. The Company has paid, or made provision for the payment
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of, all taxes which are due, except for such amounts due that would not
materially, adversely affect the business, assets, liabilities, financial
condition, operations or prospects of the Company. No examinations of the
federal, state or local tax returns of the Company are currently in progress
nor, to the best knowledge of the Company, threatened and no deficiencies have
been asserted or assessed against the Company as a result of any audit by the
Internal Revenue Service or any state or local taxing authority and no such
deficiency has been proposed or threatened. No deficiency assessment or
proposed adjustment of the Company's federal, state or local taxes is pending.
2.16 Transactions with Principals. No employee, stockholder or
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director of the Company is indebted to the Company in an amount in excess of
$50,000, nor is the Company indebted (or committed to make loans or extend or
guarantee credit) to any of its stockholders, directors or employees in an
amount in excess of $50,000. No stockholder, director or employee
9
of the Company is, directly or indirectly, interested in any contract,
arrangement or other transaction with the Company. Other than as set forth in
Schedule 2, the Company has no obligation to make any payments to any employee,
stockholder or director other than customary compensation, salary, bonus,
perquisites, director fees and option grants.
2.17 Financial Statements. The Company has delivered to each
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Purchaser by means of the Memorandum audited balance sheets of the Company at
December 31, 1996 and December 31, 1995, and the related statements of income,
shareholders' equity and cash flows, for the fiscal years ended December 31,
1996 and December 31, 1995, and unaudited statements of operations for the
fiscal quarters ended March 31, 1996 and March 31, 1997 (collectively, the
"Financial Statements") and projected statements of operations for the fiscal
years ended December 31, 1997 and December 31, 1998 . The Financial Statements
have been prepared in accordance with generally accepted accounting principles,
except that the unaudited Financial Statements do not contain the notes and
other disclosures required by generally accepted accounting principles. The
Financial Statements fairly present the financial condition and operating
results of the Company as of those dates, and for the periods, indicated
therein, subject in the case of unaudited Financial Statements to normal year-
end adjustments.
2.18 Changes. Since March 31, 1997, there has not been, except as
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specifically set forth in the Memorandum, any material change in the assets,
liabilities, financial condition or operations of the Company, other than
changes in the ordinary course of business, none of which individually or in the
aggregate has had a material adverse effect on such assets, liabilities,
financial condition or operations of the Company.
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2.19 Disclosure. The Company represents and warrants that it has
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exercised reasonable care and prudence under the circumstances in connection
with the preparation of the Agreement, the schedules thereto and the Memorandum.
3. Representations and Warranties of the Investors. Each Investor
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severally represents and warrants to the Company as follows:
3.1 Authorization. Such Investor has full power and authority to
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enter into this Agreement and the Investors' Rights Agreement, and each such
Agreement constitutes its valid and legally binding obligation, enforceable in
accordance with its terms.
3.2 Private Offering. Each Investor understands and acknowledges
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that the offering of the Shares pursuant to this Agreement will not be
registered under the Securities Act on the grounds that the offering and sale of
securities contemplated by this Agreement are exempt from registration pursuant
to Section 4(2) of the Securities Act of 1933, as amended (the "Securities
Act"), and Rule 506 of Regulation D promulgated thereunder, and that the
Company's reliance upon such exemption is predicated upon the truth and accuracy
of each Investor's representations set forth in this Agreement and the Offeree
Questionnaire, a copy of which is attached hereto as Exhibit C.
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3.3 Purchase Entirely for Own Account. This Agreement is made with
---------------------------------
each Investor in reliance upon such Investor's representation to the Company,
which by such Investor's execution of this Agreement such Investor hereby
confirms, that the Shares to be purchased by such Investor and the Class B
Common Stock issuable upon conversion thereof will be acquired for investment
for such Investor's own account, not as a nominee or agent, and
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not with a view to the resale or distribution of any part thereof, and that such
Investor has no present intention of selling, granting any participation in, or
otherwise distributing the same. By executing this Agreement, each Investor
further represents that such Investor does not have any contract, undertaking,
agreement or arrangement with any person to sell, transfer or grant
participations to such person or to any third person with respect to any of the
Shares.
3.4 Restricted Securities. Each Investor understands that the
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Shares (and any Class B Common Stock issued upon conversion thereof) may not be
sold, transferred, or otherwise disposed of without registration under the
Securities Act or an exemption therefrom, and that in the absence of an
effective registration statement covering the Shares (or the Class B Common
Stock issued on conversion thereof) must be held indefinitely. In particular,
each Investor is aware that the Shares (and any Class B Common Stock issuable
upon conversion thereof) may not be sold pursuant to Rule 144 promulgated under
the Securities Act unless all of the conditions of the Rule are met. Among the
conditions for use of Rule 144 may be the availability of current information to
the public about the Company. Such information is not now available and the
Company may or may not make such information available in the future.
3.5 Qualifications. Each Investor represents that: (i) such
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Investor has such knowledge and experience in financial and business matters as
to be capable of evaluating the merits and risks of such Investor's prospective
investment in the Shares; (ii) such Investor has received all the information it
has requested from the Company and considers necessary or appropriate for
deciding whether to purchase the Shares; (iii) such Investor has the ability to
bear the economic risks of such Investor's prospective investment; (iv) such
Investor is able, without materially impairing its financial condition, to hold
the Shares for an indefinite period of time
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and to suffer complete loss on its investment; and (v) such Investor is an
"accredited investor" within the meaning of Rule 501 of Regulation D under the
Securities Act. Each Investor understands that the Shares are not (and any Class
B Common Stock issued upon conversion thereof may not be) registered under the
Securities Act on the ground that the sale provided for in this Agreement and
the issuance of the securities hereunder is exempt from registration under Rule
506 of Regulation D, promulgated under Section 4(2) of the Securities Act. The
Company's reliance on such exemption is predicated upon the Investors'
representations set forth herein and in the Offeree Questionnaire, a copy of
which is attached hereto as Exhibit C . Each Investor realizes that the basis
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for the exemption may not be present if, notwithstanding such representations,
the Investor has in mind merely acquiring the Shares for a fixed or determinable
period in the future, or for a market rise, or for sale if the market does not
rise. No Investor has any such intention.
4. Legends.
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(a) All certificates for the Shares shall bear the following legend:
"The Shares represented hereby have not been registered
under the Securities Act of 1933, as amended, and may not be sold
or transferred, assigned, pledged or hypothecated unless and
until registered under such Act or unless the Company has
received an opinion of counsel or other evidence, satisfactory to
the Company and its counsel, that such registration is not
required."
(b) The certificates evidencing the Shares shall also bear any legend
required by the Commissioner of Corporations of the State of California or
required pursuant to any state, local or foreign law governing such securities.
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5. Conditions to Obligations of the Investors. The obligation of each
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Investor to purchase Shares at the Closing is subject to the fulfillment on or
prior to the Closing Date of the following conditions:
5.1 Representations and Warranties Correct; Performance of
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Obligations. The representations and warranties made by the Company in Section
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2 shall be true and complete in all material respects (i) on the date hereof
(except where explicitly made as of a different date, in which case such
representations and warranties shall be true and complete as of such date) and
(ii) on the Closing Date with the same force and effect as if they had been made
on and as of the Closing Date (except where explicitly made as of a different
date, in which case such representations and warranties shall be true and
complete as of such date); the Company's business and assets shall not have been
materially adversely affected prior to the Closing Date, and the Company shall
have performed all obligations and conditions herein required to be performed or
observed by it on or prior to the Closing Date.
5.2 Opinion of Company's Counsel. The Investors shall have received
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from ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇ LLP an opinion, dated as of the Closing Date, as to
the matters set forth in Exhibit D hereto.
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5.3 Consents and Waivers. The Company shall have obtained any and
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all consents (including all governmental or regulatory consents, approvals or
authorizations required in connection with the valid execution and delivery of
this Agreement or the Investors' Rights Agreement), permits and waivers
necessary or appropriate for consummation of the transactions provided for in
this Agreement or the Investors' Rights Agreement.
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5.4 Investors' Rights Agreement. The Company and each Investor and
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the other parties required as signatories thereto shall have executed and
delivered the Investors' Rights Agreement.
5.5 Certificate of Determination. The Certificate of Determination
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shall have been filed with the California Secretary of State and shall have
become effective.
5.6 Secretary's Certificate. The Company shall have delivered to the
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Investors a certificate, executed on behalf of the Company by its Secretary,
dated the Closing Date, certifying as to the Company's (i) Articles of
Incorporation; (ii) Bylaws; (iii) Board Resolutions approving the transactions
contemplated by this Agreement and the Investors' Rights Agreement; and
(iv) incumbency of officers.
5.7 Compliance Certificate. The Company shall have delivered to the
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Investors a certificate, executed on behalf of the Company by its Chief
Executive Officer, dated the Closing Date, certifying to the fulfillment of the
conditions specified in Sections 5.1 through Section 5.6.
5.8 Proceedings and Documents. All corporate and other proceedings
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in connection with the transactions contemplated to take place at the Closing
and all documents and instruments incident to such transactions shall be
reasonably satisfactorily in substance and form to the Investors, and the
Investors shall have received all such counterpart originals or certified or
other copies of such documents as they may reasonably request.
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6. Conditions of the Company's Obligations at Closing. The
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obligations of the Company to each Investor under this Agreement are subject to
fulfillment on or before Closing of each of the following conditions by that
Investor:
6.1 Representations and Warranties. The representations and
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warranties of the Investor contained in Section 3 shall be true on and as of the
Closing with the same effect as though such representations and warranties had
been made on and as of the Closing.
6.2 Payment of Purchase Price. Each Investor shall have delivered
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the purchase price specified in Section 1.1 hereto with respect to the Shares
purchased by such Investor.
6.3 Qualifications. All authorizations, approvals, or permits, if
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any of any governmental authority or regulatory body of the United States or of
any state that are required in connection with the lawful issuance and sale of
the Shares pursuant to this Agreement shall be duly obtained and effective as of
the Closing.
6.4 Investors' Rights Agreement. Each Investor shall have executed
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the signature page to the Investors'Rights Agreement in the form attached hereto
as Exhibit B.
6.5 Offeree Questionnaire. Each Investor shall have completed,
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executed and delivered the Offeree Questionnaire in the form attached hereto as
Exhibit C.
7. Miscellaneous.
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7.1 Entire Agreement; Successors and Assigns. This Agreement
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constitutes the entire contract between the Company and the Investors relative
to the subject matter hereof
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Any previous agreement between the Company and the Investors is superseded by
this Agreement. Subject to the exceptions specifically set forth in this
Agreement, the terms and conditions of this Agreement shall inure to the benefit
of and be binding upon the respective executors, administrators, heirs,
successors and assigns of the parties.
7.2 Governing Law. This Agreement shall be governed by and construed
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in accordance with the laws of the State of California applicable to contracts
entered into and wholly to be performed within the State of California by
California residents.
7.3 Counterparts. This Agreement may be executed in two or more
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counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
7.4 Headings. The headings of the Sections of this Agreement are for
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convenience and shall not by themselves determine the interpretation of this
Agreement.
7.5 Notices. Any notice required or permitted hereunder shall be
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given in writing and shall be conclusively deemed effectively given upon
personal delivery, or five days after deposit in the United States mail, by
registered or certified mail, postage prepaid, addressed (i) if to the Company,
as set forth below the Company's name on the signature page of this Agreement,
and (ii) if to an Investor, at such Investor's address as set forth on Schedule
1.1 , or at such other address as the Company or such Investor may designate by
ten (10) days' advance written notice to the Investors or the Company,
respectively.
17
7.6 Amendment of Agreement or Waiver. Any term of this Agreement may
--------------------------------
be amended and the observance of any term of this Agreement may be waived
(either generally or in a particular instance and either retroactively or
prospectively), only with the written consent of the Company and the holders of
a majority of the Class B Common Stock issued or issuable upon conversion of the
Shares. Any amendment or waiver effected in accordance with this paragraph
shall be binding upon each holder of any securities purchased under this
Agreement at the time outstanding (including securities into which such
securities are convertible), each future holder of all such securities, and the
Company.
7.7 Expenses. The Company and the Investors will each bear their
--------
respective legal and other fees and expenses in connection with the transactions
contemplated in this Agreement; provided, however, that in connection with the
offer and sale of the Shares to the Investors (the "Offering"), the Company has
agreed to pay to ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇, Inc. (the "Placement Agent"), a
placement fee of 5.0% of the Offering, with the exception of the following:
(a) No fee will be due and payable on funds raised from the Placement
Agent's Partners' Fund or from the Placement Agent's employees individually.
(b) No fee will be due and payable on funds raised from Company employees
or directors individually or from Company vendors, customers or suppliers.
In addition, the Company has agreed to reimburse the Placement Agent for (i)
reasonable out-of-pocket expenses associated with the Offering, and (ii) legal
fees of up to $10,000 associated with the Offering.
18
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
The Company: TIER TECHNOLOGIES, INC., a California
corporation
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------------
Title: CEO & Chairman of the Board
-----------------------------------
Address: ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
The Investors: ▇▇▇▇▇▇ ▇. ▇▇▇▇
------------------------------------------
Name of Investor
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
------------------------------------------
Signature
Senior Vice President
and Chief Financial Officer
__________________________________________
Title (if Entity)
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
------------------------------------------
Address
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ & Co.
------------------------------------------
Name of Investor
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------------
Signature
Chief Financial Officer
------------------------------------------
Title (if Entity)
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
------------------------------------------
Address
Tucks Point LP
------------------------------------------
Name of Investor
/s/ ▇▇▇▇ ▇.▇. ▇▇▇▇▇
------------------------------------------
Signature
General Partner
------------------------------------------
Title (if Entity)
▇ ▇▇▇▇▇▇ ▇▇▇▇▇, #▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
------------------------------------------
Address
▇▇▇▇▇▇ ▇. English
------------------------------------------
Name of Investor
/s/ ▇▇▇▇▇▇ ▇. English
------------------------------------------
Signature
__________________________________________
Title (if Entity)
c/o Romac International
▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
------------------------------------------
Address
Merchants' Fund, Inc.
------------------------------------------
Name of Investor
/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------------
Signature
Vice President
------------------------------------------
Title (if Entity)
▇▇▇▇ ▇▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
------------------------------------------
Address
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------------
Name of Investor
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------------
Signature
___________________________________________
Title (if Entity)
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
------------------------------------------
Address
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
------------------------------------------
Name of Investor
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
------------------------------------------
Signature
__________________________________________
Title (if Entity)
▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
------------------------------------------
Address
▇▇▇▇▇▇▇ ▇. ▇▇▇▇
-----------------------------------------
Name of Investor
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
-----------------------------------------
Signature
__________________________________________
Title (if Entity)
▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
-----------------------------------------
Address
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------------
Name of Investor
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------------
Signature
_________________________________________
Title (if Entity)
▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
-----------------------------------------
Address
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------------
Name of Investor
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------------
Signature
_________________________________________
Title (if Entity)
▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
-----------------------------------------
Address
Sherif Nada
-----------------------------------------
Name of Investor
/s/ Sherif Nada
-----------------------------------------
Signature
_________________________________________
Title (if Entity)
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
-----------------------------------------
Address
Albemarle Partners
-----------------------------------------
Name of Investor
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------------
Signature
General Partner
-----------------------------------------
Title (if Entity)
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
-----------------------------------------
Address
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------------------
Name of Investor
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------------------
Signature
__________________________________________
Title (if Entity)
▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
-----------------------------------------
Address
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-----------------------------------------
Name of Investor
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-----------------------------------------
Signature
_________________________________________
Title (if Entity)
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
-----------------------------------------
Address
▇▇▇ ▇▇▇▇▇▇▇▇▇
-----------------------------------------
Name of Investor
/s/ ▇▇▇ ▇▇▇▇▇▇▇▇▇
-----------------------------------------
Signature
_________________________________________
Title (if Entity)
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇. #▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
-----------------------------------------
Address
▇▇▇▇▇▇ ▇▇▇▇▇
-----------------------------------------
Name of Investor
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇
-----------------------------------------
Signature
_________________________________________
Title (if Entity)
▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
-----------------------------------------
Address
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-----------------------------------------
Name of Investor
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-----------------------------------------
Signature
_________________________________________
Title (if Entity)
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
-----------------------------------------
Address
▇▇▇▇▇ ▇▇▇▇▇
-----------------------------------------
Name of Investor
/s/ ▇▇▇▇▇ ▇▇▇▇▇
-----------------------------------------
Signature
_________________________________________
Title (if Entity)
▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
-----------------------------------------
Address
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------------------------
Name of Investor
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------------------------
Signature
_________________________________________
Title (if Entity)
c/o Diversified Funding, Inc.
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
-----------------------------------------
Address
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------------
Name of Investor
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------------
Signature
_________________________________________
Title (if Entity)
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
-----------------------------------------
Address
▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------------
Name of Investor
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------------
Signature
_________________________________________
Title (if Entity)
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
-----------------------------------------
Address
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇
-----------------------------------------
Name of Investor
/s/ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇
-----------------------------------------
Signature
_________________________________________
Title (if Entity)
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
-----------------------------------------
Address
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------------
Name of Investor
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------------
Signature
_________________________________________
Title (if Entity)
▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
-----------------------------------------
Address
Nucon Capital Corporation
-----------------------------------------
Name of Investor
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------------
Signature
President
-----------------------------------------
Title (if Entity)
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
-----------------------------------------
Address
▇▇▇▇▇▇ ▇▇▇▇▇, III
-----------------------------------------
Name of Investor
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇, III
-----------------------------------------
Signature
_________________________________________
Title (if Entity)
▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
-----------------------------------------
Address
▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------------
Name of Investor
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------------
Signature
_________________________________________
Title (if Entity)
▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
-----------------------------------------
Address
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------------
Name of Investor
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------------
Signature
_________________________________________
Title (if Entity)
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
-----------------------------------------
Address
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
-----------------------------------------
Name of Investor
/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
-----------------------------------------
Signature
_________________________________________
Title (if Entity)
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
-----------------------------------------
Address
▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇'▇▇▇▇▇▇▇
-----------------------------------------
Name of Investor
/s/ F. ▇▇▇▇ ▇'▇▇▇▇▇▇▇
-----------------------------------------
Signature
_________________________________________
Title (if Entity)
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
-----------------------------------------
Address
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
-----------------------------------------
Name of Investor
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------------------
Signature
_________________________________________
Title (if Entity)
▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
-----------------------------------------
Address
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------------
Name of Investor
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------------------
Signature
_________________________________________
Title (if Entity)
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
-----------------------------------------
Address
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
-----------------------------------------
Name of Investor
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------------------
Signature
_________________________________________
Title (if Entity)
▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
-----------------------------------------
Address
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------------
Name of Investor
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------------------
Signature
_________________________________________
Title (if Entity)
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
-----------------------------------------
Address