EXHIBIT 10.34
TIER TECHNOLOGIES, INC.
VOTING TRUST AGREEMENT
THIS AGREEMENT ("Agreement") is entered into as of November 3, 1997,
between ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, as trustees (with any
successors, the "Trustees" or individually, a "Trustee"), and the persons who
have executed this Agreement as Beneficiaries hereof or who become registered
owners of voting trust certificates pursuant to the terms of this Agreement
(individually, a "Beneficiary" and collectively, the "Beneficiaries") for the
purpose of ensuring that, during the term of this Agreement, the shares of Class
A Common Stock of Tier Technologies, Inc., a California corporation (the
"Company"), represented under this Agreement will be voted in a unified and
consistent manner. In the event, and whenever, there shall be only one Trustee
serving under this Agreement, the term "Trustees" shall refer to such Trustee or
to all Trustees together, as appropriate in the context.
In consideration of the mutual agreements below, the Beneficiaries hereby
create and the Trustee hereby accepts a trust on the terms stated below, and the
parties hereto agree as follows:
1. EXCHANGE OF SHARES FOR VOTING TRUST CERTIFICATES
1.1. Simultaneously with the execution of this Agreement, the
Beneficiaries shall deliver to the Trustees duly endorsed for transfer, or
accompanied by duly executed instruments of transfer, all shares of the Class A
Common Stock of the Company which that Beneficiary now owns or becomes the owner
of in the future. Promptly upon receipt of such shares, the Trustees shall cause
such shares to be registered in the name of the Trustees, and shall file a
duplicate copy of this Agreement with the Secretary of the Company.
1.2. The Trustees shall hold the shares transferred to them in trust (the
"Trust"), subject to the terms of this Agreement.
1.3. The Trustees shall issue and deliver to each Beneficiary a voting
trust certificate, in the form of Exhibit A hereto ("Certificate"), in respect
of the shares deposited with and held by the Trustees for the benefit of each
Beneficiary under this Agreement.
1.4. Until such time as this Agreement shall terminate, all stock
certificates representing shares held by the Trustee pursuant to the Trust shall
bear the following legend:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT
TO THE TERMS OF A VOTING TRUST AGREEMENT. ANY TRANSFEREE OF
THESE SECURITIES TAKES SUBJECT TO THE TERMS OF SUCH
AGREEMENT, A COPY OF WHICH IS ON FILE WITH THE SECRETARY OF
THE COMPANY.
1.5. The Trustees shall keep at the principal office of the Company a book
(the "Certificate Book") containing the names of all persons who are
Beneficiaries and showing their places of residence, the number of shares
represented by the Certificates held by them, and the time when they became the
owners thereof. The Certificate Book shall be open for inspection by any
shareholder of the Company or any Beneficiary, or the agent of either, upon the
same terms as the record of shareholders of the Company is open to inspection by
such persons.
1
1.6. The Certificate shall be transferable only as provided in the
Certificate and this Agreement, and upon payment of any transfer taxes and other
charges. The term "Transfer" shall include, without limitation, any transfer,
sale, assignment, or alienation, regardless of the manner, circumstances,
timing, or nature of such transfer, and whether intervivos or at death. All
Transfers shall be recorded in the Certificate Book and any proper transfer made
of any Certificate shall vest in the transferee all rights of the transferor and
shall subject the transferee to the same limitations as those imposed on the
transferor by the terms of the Certificate transferred and by this Agreement.
Upon Transfer of any Certificate, the Trustees shall deliver a Certificate or
Certificates to the transferee for the number of shares represented by the
Certificate transferred.
1.7. If a Certificate shall be lost, stolen, mutilated or destroyed, the
Trustees, in their discretion, may issue a duplicate of such Certificate upon
receipt of (i) evidence of such fact satisfactory to the Trustees, (ii) an
indemnity satisfactory to the Trustees (or the existing Certificate, if
mutilated), and (iii) payment by the holder of the Certificate of all fees and
expenses applicable thereto.
1.8. The Trustees shall not be required to recognize any Transfer of a
Certificate not made in accordance with the provisions of the Certificate and
this Agreement. A Certificate is transferable, subject to the provisions of the
Certificate and this Agreement.
1.8.1. In the event of any Transfer which, pursuant to the terms of
the Articles of Incorporation of the Company, does not cause a conversion of
Class A Common Stock to Class B Common Stock, the underlying shares of stock
shall remain a part of this Trust and shall continue to be Class A Common Stock
shares. The affected Certificate shall be amended to reflect the Transfer and,
in the event of a Transfer of less than all the shares of the transferor, a new
Certificate shall be issued and delivered to the transferor.
1.8.2. In the event of a Transfer which, pursuant to the terms of
the Articles of Incorporation of the Company, causes a conversion of Class A
Common Stock to Class B Common Stock, the Trust shall terminate as to the shares
transferred. Any underlying shares of Class A Common Stock (with 10 votes per
share) which are transferred pursuant to this Section 1.8.2 shall be converted
to an equal number of shares of Class B Common Stock (with 1 vote per share),
consistent with the Company's Articles of Incorporation. Immediately after a
Transfer within the description of this Section 1.8.2, the subject Certificate
shall be surrendered to the Trustees (who shall return an amended Certificate to
the transferor in the event of a Transfer of less than all of the transferor's
shares), the affected shares shall be released from the Trust, and, after the
records of the Company have been properly adjusted to reflect the conversion,
the Trustees shall arrange for the delivery of a Class B Common Stock share
certificate to the transferee.
1.9. The Trustees may treat the registered holder of each Certificate (or
when presented duly endorsed by the registered holder with the signature of the
registered holder guaranteed in blank or to a transferee for Transfer, the
bearer or transferee thereof) as the absolute owner and holder thereof and of
all the rights and interests represented thereby for all purposes whatsoever,
and the Trustees shall not be bound or affected by any notice to the contrary.
2
2. RECORD DATES
2.1. The Trustees may fix, in advance, a record date for the determination
of the Beneficiaries entitled to notice of any meeting of Beneficiaries or to
vote or to receive payment of any dividend or other distribution, or any
allotment of rights, or to exercise rights in respect of any other lawful
action. The record date so fixed shall be not more than 60 nor less than 10 days
prior to the date of the meeting nor more than 60 days prior to any other
action. If the purpose of the record date is a distribution pursuant to Section
4 of this Agreement, the record date shall be fixed so that each Beneficiary
shall receive all amounts to which such Beneficiary is entitled under Section 4.
When a record date is so fixed, only Beneficiaries of record on that date are
entitled to notice of and to vote at the meeting or to receive the dividend,
distribution or allotment of rights, or to exercise the rights, as the case may
be, notwithstanding any transfer of Certificates after the record date. A
determination of Beneficiaries of record entitled to notice of or to vote at a
meeting of Beneficiaries shall apply to any adjournment of the meeting unless
the Trustees fix a new record date for the adjourned meeting. The Trustees shall
fix a new record date if the meeting is adjourned for more than 45 days.
2.2. If no record date is fixed by the Trustees, the record date for
determining Beneficiaries entitled to notice of or to vote at a meeting of
Beneficiaries shall be at the close of business on the business day next
preceding the day on which notice is given or, if notice is waived, at the close
of business on the business day next preceding the day on which the meeting is
held. The record date for determining Beneficiaries for any purpose other than
set forth in this Section shall be at the close of business on the day on which
the Trustees adopt the resolution relating thereto, or the 60th day prior to the
date of such other action, whichever is later.
3. TRUSTEE'S RIGHTS AS SHAREHOLDER OF COMPANY
3.1. Voting of Shares. During the existence of this Trust, the Trustees
----------------
shall have the exclusive right to vote all shares transferred to them in person
or by proxy at all shareholder meetings and in all proceedings in which the vote
or consent of shareholders may be required or authorized, and shall have all the
rights, privileges, and powers of shareholders except as otherwise provided in
this Agreement.
3.1.1. The right of the Trustees to vote, assent or consent shall
include, without limitation, the right to vote at any election of directors and
in favor of or in opposition to any dissolution or proposed dissolution,
liquidation or reorganization of the Company, or a sale of all or substantially
all of its assets, or the issuance or creation of additional classes of its
securities, or any action of any character whatsoever which may be presented at
any meeting or require the consent of shareholders of the Company.
3.1.2. Whenever there shall be more than one person serving as
Trustee hereunder, the Trustees shall exercise any power or take any action
under this Agreement with the assent of a majority of the Trustees. That assent
may be expressed at a meeting of the Trustees or without a meeting by vote or
resolution or by an instrument or separate instruments in writing signed by a
majority of the Trustees. As to any particular matter, should the Trustees fail
to come to any agreement as to what position or action to take (a "Deadlock"),
all shares in the Trust shall nonetheless be voted uniformly and the provisions
of Section 5.9 of this Agreement shall apply.
3
3.2. No Authority to Transfer Shares. The Trustees shall have no
-------------------------------
authority to sell, pledge, hypothecate or otherwise dispose of the shares
deposited pursuant to the terms of this Agreement, except as specifically
provided in Section 3.3 of this Agreement.
3.3. Consolidation or Transfer of Shares. In the event that the Company
-----------------------------------
shall merge into or consolidate with another corporation or entity, or in the
event that all or substantially all of the assets or shares of the Company are
transferred to another corporation or entity the shares or equity interests of
which are issued to shareholders of the Company in connection with that
transfer, then the term "Company" shall be construed to include the successor
corporation or entity and the Trustees shall receive and hold under this
Agreement any shares or other equity interests of the successor corporation or
entity received by the Trustees on account of their ownership, as trustees, of
shares held by them hereunder prior to the merger, consolidation or transfer.
Certificates issued and outstanding under this Agreement at the time of the
merger, consolidation or transfer may remain outstanding, but the Trustees may,
in their discretion, substitute therefor new Certificates in appropriate form.
4. NOTICES AND DISTRIBUTIONS
4.1. The Trustees shall promptly forward copies of all notices, reports,
statements, and other communications received from the Company to the
Beneficiaries.
4.2. The Trustees shall promptly distribute all dividends and other
distributions received from the Corporation to the Beneficiaries.
4.3. If any dividend or stock split consists of additional shares having
voting rights, the Trustees shall hold these shares in trust subject to the
terms of this Agreement, and shall issue new voting trust certificates,
representing the additional shares to the Beneficiaries.
4.4. The Trustees may, if they deem it desirable to do so, arrange with
the Company for the direct payment by the Company of cash dividends or other
cash distributions to the Beneficiaries on the record date for any such dividend
or other distribution.
4.5. There shall be deducted and withheld from every distribution of every
kind under this Agreement any taxes, assessments and/or other amounts that may
be required by any present or future law or laws to be deducted or withheld, as
well as compensation of the Trustee as provided in Section 5.6 and expenses and
charges incurred pursuant to Section 5.5 to the extent that such compensation,
expenses and amounts remain unpaid or unreimbursed.
5. THE TRUSTEE
5.1. Each Trustee by executing this Agreement, and each successor Trustee
upon being appointed as such, accepts the Trust created hereby and agrees to
carry out the terms and provisions of this Agreement. Each Trustee, in the
absence of his resignation, death or incapacity to act, shall serve for the
entire term of this Trust.
5.2. In voting shares or in doing any act in respect of the control or
management of the Company or its affairs, as the holders of shares deposited
under this Agreement, the Trustees shall exercise their best judgment, but the
Trustees assume no responsibility in respect of any vote made or act taken by
them or taken by the Company in pursuance of their vote or action as such
holders.
4
5.3. Should any question arise upon which the Trustees shall desire the
opinion of the Beneficiaries, a meeting for that purpose may be called by the
Trustees. Written notice of each such meeting shall be given not less than 10
nor more than 60 days before the date of the meeting to each Beneficiary
entitled to vote at it. The notice shall state the place, date and hour of the
meeting and the general nature of the business to be transacted, and no other
business may be transacted. Notice of such meetings shall be given either
personally or by mail, or by other means of written communication, addressed to
each Beneficiary at such Beneficiary's address appearing on the Trustees'
records or given by the Beneficiary to the Trustees for the purpose of notice;
or, if no such address appears or is given, at the place where the principal
executive office of the Company is located or by publication at least once in a
newspaper of general circulation in the county in which the principal executive
office of the Company is located. The notice shall be deemed to have been given
at the time when delivered personally or deposited in the mail or sent by such
other means of written communication. At any such meeting called by the
Trustees, the holders of a majority or more in interest of such Certificates may
determine the manner in which they desire the Trustees to act on the matter
submitted by the Trustees to the Beneficiaries for their determination (but
shall have no right to determine any matters not so submitted to them), and the
Trustees shall be bound to act in the manner so determined; provided, however,
that the Trustees shall not be required to take any action as a result of such a
meeting unless and until the Trustees have been fully and satisfactorily
indemnified against all loss, damage, claim or injury to which the Trustees
might be subjected, either by reason of their action or by reason of their
position as a trustee under this Agreement.
5.4. The transactions of any meeting of Beneficiaries, however called and
noticed by the Trustees, and wherever held, are as valid as though had at a
meeting duly held after regular call and notice by the Trustees, if holders of
the requisite amount and interest of Certificates shall have determined the
manner in which they desire the Trustees to act, and if, either before or after
the meeting, each of the persons entitled to vote, not present in person or by
proxy, signs a written waiver of notice, or a consent to the holding of the
meeting or an approval of the minutes thereof. Any action of the Beneficiaries
with respect (but only with respect) to any matter submitted to them by the
Trustees for determination may be taken without a meeting and without prior
notice if a consent in writing, setting forth the actions so taken, shall be
signed by the holders of outstanding Certificates having not less than the
minimum number of votes that would be necessary to authorize or take that action
at a meeting at which all Beneficiaries entitled to vote thereon were present
and voted. In the event of action of Beneficiaries without a meeting, pursuant
to the preceding sentence, the Trustees shall notify in writing all
Beneficiaries who have not consented thereto in writing of the action of
Beneficiaries so taken.
5.5. The costs of establishing and maintaining the Trust contemplated
herein shall be borne by the original Trustees.
5.6. The Trustees shall not be compensated for their services as the
trustees hereunder.
5.7. The rights and duties of any Trustee shall terminate upon his death,
and no interest in any of the property owned or held by the Trust nor any of the
rights or duties of a Trustee may be transferred by will, devise, succession, or
in any other manner except as provided herein. The heirs, administrators and
executors of such Trustee shall, however, have the right and
5
duty to convey any property held by the Trustee to the remaining or successor
Trustee(s), as the case may be.
5.8. Any Trustee may resign by giving notice of resignation to (i) the
remaining Trustee(s), if there is at the time of such resignation more than one
person serving as Trustee, or (ii) to the Beneficiaries. Upon the resignation of
any Trustee, the remaining or successor Trustee(s), as the case may be, may
settle any account or transaction with such resigning Trustee, and obtain or
deliver full release and discharge upon such resignation.
5.9. In the event of a Deadlock, the matter(s) responsible for the
Deadlock shall be referred to a person (a "Mediator") who shall be selected by
the Trustees and who shall resolve the Deadlock. In the event that the Trustees
are unable, within 10 days of the occurrence of a Deadlock, to agree upon the
selection of a Mediator, then each Trustee shall appoint a designee, and the two
designees shall together select a Mediator to resolve the Deadlock.
5.9.1. Any determination made by a Mediator shall be final.
5.9.2. The Trustees jointly and severally hereby agree to indemnify,
defend, and hold any selected Mediator harmless from and against any and all
claims, damages, actions, suits or other charges incurred by or assessed against
the Mediator in the performance of his duties hereunder, except to the extent
resulting from his own gross negligence, fraud, or willful misconduct.
5.10. In the event of the death, resignation or incapacity to act of the
Trustee or any successor Trustee, and provided that there remains one or more
incumbent Trustees, such incumbent Trustee(s) shall serve as the successor
Trustees.
5.11. In the event of the death, resignation or incapacity to act of a sole
Trustee, leaving no incumbent or identified successor Trustee, this Agreement
shall terminate.
5.12. Each successor Trustee shall enjoy all the rights, powers, interests
and immunities of the original Trustee. Notwithstanding any change in the
Trustee, the certificates for shares standing in the name of the Trustee may be
endorsed and transferred by any successor Trustee or Trustees for the time being
with the same effect as if endorsed and transferred by the Trustee who has
ceased to act. The successor Trustee is authorized and empowered to cause any
further transfer of such shares to be made which may be necessary through the
occurrence of any change of persons acting as Trustee hereunder.
5.13. Whenever there shall be more than one person serving as Trustee
hereunder, the title to any property held by the Trustees shall be held in the
nature of a joint tenancy and not a tenancy in common, and there shall be
survivorship rights among the Trustees upon the death of any of them, and the
title of any Trustee who may die, resign or become incapacitated to act shall,
upon such death, resignation or incapacity, similarly vest in the remaining
Trustee or Trustees.
5.14. The Trust created by this Agreement is not intended to be, and shall
not be deemed to be, and shall not be treated, as a general partnership, limited
partnership, joint venture, limited liability company, corporation or joint
stock company or association. The relationship of the Beneficiaries to the
Trustees shall be solely that of beneficiaries of the trust created by this
Agreement, and their rights shall be limited to those conferred upon them by
this Agreement.
6
5.15. The Trustees from time to time may be parties to this Agreement as
Beneficiaries. The Trustees and any corporation, trust, firm, association or
other entity of which the Trustees may be trustees, shareholders, directors,
officers, members, agents or employees may contract with or be or become
pecuniarily interested, directly or indirectly, in any matter or transaction to
which the Company or any subsidiary or controlled or affiliated corporation may
be a party or in which it may be concerned, as fully and freely as though the
Trustees were not Trustees under this Agreement. The Trustees may act as
directors and/or officers of the Company or of any such subsidiary or controlled
or affiliated corporation and may vote the shares held hereunder in favor of
their election as directors and as directors may vote in favor of their election
as officers.
5.16. The Trustees are authorized and empowered to construe this Agreement,
and the Trustees' reasonable construction made in good faith shall be conclusive
and binding upon the Beneficiaries and upon all parties hereto.
5.17. The Trustees may consult with legal counsel, which may be counsel to
the Company, and any action under this Agreement taken or suffered in good faith
by the Trustees in accordance with the opinion of counsel shall be conclusive
upon the parties hereto, and the Trustees shall be fully protected and be
subject to no liability in respect thereof.
5.18. Each Trustee shall not be liable for any error of judgment or for any
act done or omitted, or for any mistake of fact or law or for anything which
such Trustee may do or refrain from doing in good faith, nor shall the Trustee
have any accountability hereunder, except each Trustee shall be responsible for
that Trustee's own gross negligence, fraud, or willful misconduct.
5.19. No Trustee shall be liable in any event for acts or defaults of any
other Trustee or Trustees or for acts or defaults of any employee, agent, proxy
or attorney in fact of any other Trustee or Trustees. Each Trustee shall always
be protected and free from liability in acting upon any notice, request,
consent, certificate, declaration, fax, telegram, telex, guarantee, affidavit or
other paper or document or signature believed by the Trustee to be genuine and
to have been signed by the proper party or parties or by the party or parties
purporting to have signed the same.
6. TERMINATION
6.1. This Agreement shall terminate ten (10) years after the date of this
Agreement or on any later date to which the term is extended, as provided below,
without notice by or to, or action on the part of, the Trustees or the
Beneficiaries; provided that this Agreement may be terminated on an earlier date
upon the agreement of the Trustees to terminate this Agreement or upon an event
described in this Agreement.
6.2. As soon as practicable after termination of this Agreement, the
Trustees (or their heirs, administrators, executors or other representatives)
shall redeliver share certificates representing the appropriate number of
shares, properly endorsed for transfer, to the Beneficiaries, and the
Beneficiaries will surrender to the Trustees their voting trust certificates
properly endorsed. If any such Beneficiary cannot be located or fails or refuses
to surrender Certificates in exchange for share certificates or other securities
as stated above, the Trustees may in their discretion deliver the share
certificates or other securities to the Company or to any bank or trust company
in California for the benefit of the person or persons entitled thereto.
7
Upon any such delivery, the Trustees shall be fully acquitted and discharged
with respect to the shares or other securities.
6.3. The termination of this Agreement shall not affect the rights and
protections of the Trustee set forth in Section 5. Except as otherwise provided
in this Agreement, the trust created by this Agreement is hereby expressly
declared to be irrevocable.
7. EXTENSION
7.1. The term of this Agreement, as prescribed in Section 6, may be
extended from the original termination date of this Agreement or from the
termination date as last extended in accordance with this Section 7, provided
that within two (2) years before the date as originally fixed or as last
extended, the Beneficiaries desiring such extensions, by written agreement, and
with the Trustees' written consent, extend the term of this Agreement for an
additional term not to exceed ten (10) years from the expiration date then in
effect.
7.2. In the event of extension, duplicate copies of this Agreement and of
the extension agreement shall be filed with the secretary of the Company and
shall be open for inspection on the same conditions as the Company's record of
shareholders.
7.3. No such extension agreement shall affect the rights or obligations of
persons not parties to the extension agreement.
8. MISCELLANEOUS
8.1. The provisions of this Agreement are intended to satisfy the
requirements of Section 706 of the California General Corporation Law with
regard to voting trusts and, unless specifically provided otherwise, the parties
will have all rights and obligations as provided in Section 706 of the
California General Corporation Law with regard to voting trusts.
8.2. This Agreement shall be binding and inure to the benefit of the
Trustees and Beneficiaries hereunder and each and all of the heirs, executors,
administrators, successors and assigns thereof.
8.3. Any notice to be given to the holder of a Certificate shall be
sufficiently given if faxed or mailed, postage prepaid, to the registered holder
of the Certificate at the address of the registered holder appearing on the
Trustees' records. Every notice so given shall be effective whether or not
received, and the notice shall for all purposes be deemed to have been given on
the date of mailing thereof.
8.4. Any notice to be given to the Trustees hereunder shall be
sufficiently given if faxed or mailed to the Trustees at the address shown for
the Trustees below, or at any other address as the Trustees may from time to
time designate by written notice given to the holders of Certificates issued
hereunder:
8
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Chairman President & COO
TIER Technologies, Inc. TIER Technologies, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇., ▇▇▇. ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇., ▇▇▇. ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇-▇▇▇-▇▇▇▇ (Fax) ▇▇▇-▇▇▇-▇▇▇▇ (Fax)
8.5. This Agreement may be executed in multiple counterparts, each of
which shall be deemed an original but all of which taken together shall
constitute one instrument.
8.6. This Agreement shall be governed by and construed in accordance with
the laws of the State of California applicable to contracts made and to be
performed in California.
8.7. If in any judicial proceedings a court shall refuse to enforce any of
the provisions of this Agreement, then the unenforceable provision shall be
deemed eliminated from this Agreement for the purpose of those proceedings to
the extent necessary to permit the remaining provisions to be enforced.
9
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
TRUSTEES:
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------- -----------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
BENEFICIARIES:
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------- -----------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇ /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------------- -----------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
----------------------------------- -----------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ /s/ ▇▇▇▇ ▇▇▇▇▇
----------------------------------- -----------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------------- -----------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
COMPANY:
Tier Technologies, Inc.,
a California corporation
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Chairman
10
Exhibit A
---------
TIER TECHNOLOGIES, INC.
VOTING TRUST CERTIFICATE
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE FEDERAL SECURITIES ACT OF 1933 (THE "ACT") OR QUALIFIED UNDER ANY
APPLICABLE STATE SECURITIES LAWS. SUCH SECURITIES MAY NOT BE SOLD OR
TRANSFERRED UNLESS SUCH SALE OR TRANSFER IS IN ACCORDANCE WITH THE
REGISTRATION REQUIREMENTS OF THE ACT AND THE QUALIFICATION REQUIREMENTS OF
ANY APPLICABLE STATE SECURITIES LAWS, OR UNLESS AN EXEMPTION FROM SUCH
REGISTRATION AND QUALIFICATION REQUIREMENTS IS AVAILABLE WITH RESPECT
THERETO.
This certifies that ______________________________ has deposited or
has caused to be deposited ____________ shares of the Class A Common Stock of
Tier Technologies, Inc., a California corporation (the "Company"), with the
undersigned, as trustee (the "Trustee"), under a Voting Trust Agreement, dated
as of ____________ ___, 1997 (the "Voting Trust Agreement"), among the
undersigned as Trustee and those persons who have or shall become Beneficiaries
under the Voting Trust Agreement pursuant to its terms. The Trustee shall
possess and be entitled to the exclusive right to vote such shares upon the
terms and subject to the conditions stated in the Voting Trust Agreement.
This Voting Trust Certificate shall be transferable only on the
records of the Trustee upon surrender hereof by the registered holder in person
or by attorney duly authorized and, until so transferred, the Trustee may treat
the registered holder as the owner of this Voting Trust Certificate for all
purposes whatsoever, unaffected by any notice to the contrary. As a condition
precedent to the making of any transfer of this Voting Trust Certificate, the
Trustee may require the payment of a sum sufficient to cover the amount of any
taxes or other governmental charges incident thereto.
This Voting Trust Certificate is issued pursuant to, and the rights of
the holder hereof are subject to and limited by the terms and conditions of, the
Voting Trust Agreement. The holder of this Voting Trust Certificate, by the
acceptance hereof, assents to and agrees to be bound by all the terms and
conditions of the Voting Trust Agreement. Copies of the Voting Trust Agreement
are on file at the principal office of the Company and at the office of the
Trustee.
Dated: ___________________
TRUSTEE:
________________________________________
Print Name: ____________________________
Exhibit A, Page 1
TIER TECHNOLOGIES, INC.
AGREEMENT REGARDING TERMINATION OF
VOTING TRUST
THIS AGREEMENT ("Agreement") is entered into as of November 3, 1997,
between ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ (with any successors, the
"Trustees" or individually, a "Trustee"), and the persons who have executed this
Agreement as beneficiaries or who become registered owners of voting trust
certificates pursuant to the terms of that certain Voting Trust Agreement of
even date herewith (individually, a "Beneficiary" and collectively, the
"Beneficiaries").
RECITALS
--------
The parties have entered into the Voting Trust Agreement of even date
herewith (the "Voting Trust Agreement") for the purpose of ensuring that, during
the term of the Voting Trust Agreement, the shares of Class A Common Stock of
Tier Technologies, Inc., a California corporation (the "Company"), represented
under the Voting Trust Agreement will be voted in a unified and consistent
manner.
It is the desire of the parties, however, that the voting trust (the
"Trust") that is the subject of the Voting Trust Agreement be terminated in the
event that an initial public offering of the shares of the Company (the "IPO")
is not completed by June 30, 1998.
Any terms capitalized but not defined herein shall have the meaning given
to them in the Voting Trust Agreement.
In consideration of the mutual agreements below, the parties hereto agree
as follows:
2. TERMINATION OF THE TRUST
2.4. In the event that the IPO has not become effective as of June 30,
1998, the Trust shall terminate and the provisions of Sections 6.2 and 6.3 of
the Voting Trust Agreement shall apply.
3. MISCELLANEOUS
3.4. This Agreement shall be binding on and inure to the benefit of the
Trustees and Beneficiaries hereunder and each and all of the heirs, executors,
administrators, successors and assigns thereof.
3.5. Any notice to be given to the holder of a Certificate shall be
sufficiently given if faxed or mailed, postage prepaid, to the registered holder
of the Certificate at the address of the registered holder appearing on the
Trustees' records. Every notice so given shall be effective whether or not
received, and the notice shall for all purposes be deemed to have been given on
the date of mailing thereof.
3.6. Any notice to be given to the Trustees hereunder shall be
sufficiently given if faxed or mailed to the Trustees at the address shown for
the Trustees below, or at any other address as the Trustees may from time to
time designate by written notice given to the holders of Certificates:
1
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Chairman President & COO
TIER Technologies, Inc. TIER Technologies, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇., ▇▇▇. ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇., ▇▇▇. ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇-▇▇▇-▇▇▇▇ (Fax) ▇▇▇-▇▇▇-▇▇▇▇ (Fax)
2.4. This Agreement may be executed in multiple counterparts, each of
which shall be deemed an original but all of which taken together shall
constitute one instrument.
2.5. This Agreement shall be governed by and construed in accordance with
the laws of the State of California applicable to contracts made and to be
performed in California.
2.6. If in any judicial proceedings a court shall refuse to enforce any of
the provisions of this Agreement, then the unenforceable provision shall be
deemed eliminated from this Agreement for the purpose of those proceedings to
the extent necessary to permit the remaining provisions to be enforced.
2
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
TRUSTEES:
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------- ---------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
BENEFICIARIES:
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------- ---------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇ /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------- ---------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------------------- ---------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ /s/ ▇▇▇▇ ▇▇▇▇▇
--------------------------------- ---------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------- ---------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
COMPANY:
Tier Technologies, Inc.,
a California corporation
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Chairman
3
