UNITED
STATES
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SECURITIES AND EXCHANGE COMMISSION
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Washington, D.C. 20549
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SCHEDULE 14A
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(RULE 14a-101)
SCHEDULE 14A INFORMATION
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Proxy
Statement Pursuant to Section 14(a) of
the Securities Exchange Act of 1934 (Amendment No. )
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Filed by the Registrant
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Preliminary Proxy Statement
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Confidential, for
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Definitive Proxy Statement
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Definitive Additional Materials
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Soliciting Material Pursuant to
§240.14a-12
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TIER
TECHNOLOGIES, INC.
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(Name
of Registrant as Specified In Its Charter)
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DISCOVERY
EQUITY PARTNERS, L.P.
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(Name
of Person(s) Filing Proxy Statement, if other than the Registrant)
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Payment of Filing Fee (Check the
appropriate box):
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No fee required.
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Fee computed on table below per
Exchange Act Rules 14a-6(i)(1) and 0-11.
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(1)
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Title of each class of securities to
which transaction applies:
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(2)
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Aggregate number of securities to
which transaction applies:
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(3)
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Per unit price or other underlying
value of transaction computed pursuant to Exchange Act Rule 0-11 (set forth
the amount on which the filing fee is calculated and state how it was
determined):
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(4)
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Proposed maximum aggregate value of
transaction:
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(5)
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Total fee paid:
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(1)
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Amount Previously Paid:
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(2)
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Form, Schedule or Registration
Statement No.:
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(3)
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Filing Party:
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(4)
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Date Filed:
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Michael
R. Murphy
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Managing Partner
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1 312 265 9605
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mmurphy@thediscoverygroup.com
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December 3, 2008
The
Board of Directors
Tier
Technologies, Inc.
10780 Parkridge Boulevard
Suite 400
Reston, VA 20191
Dear
Tier Directors:
Discovery
Equity Partners, L.P. (together with its affiliates, Discovery) is nominating
two of our professionals to serve on the Tier Technologies, Inc. (Tier)
Board of Directors to represent the interests of all fellow shareholders. Discovery is motivated by specific, tangible
opportunities that exist to greatly increase shareholder value and that are
being ignored by the current Tier Board.
This letter will provide background on the governance crisis that has
evolved at Tier and explain why stockholders deserve fellow investors to act as
new representatives to enhance their investment.
Discovery
Discovery
(www.thediscoverygroup.com/tier.htm) manages investment funds that own
approximately 9.9% of the outstanding shares of Tier Technologies. Discovery has a very successful record of
investing in the payment processing sector and we have followed Tier closely
for several years. Since building our
initial investment position in 2007 we have had numerous meetings and
conversations with past and present members of management and the Board of
Directors. We believe we are the second
largest shareholder of the Company.
Discovery has invested over $16 million in Tier and the position is one
of our most important holdings.
Tier
Boards Failures
Discovery believes that Tiers
shares are trading at a significant discount to the companys true value. We believe that the discount is due to
investors lack of confidence in the current Boards ability to deliver value
to shareholders. The Tier Board has
overseen several years of operating losses, has fostered a culture with
excessive corporate overhead, has not unlocked the value of Tiers primary
Electronic Payment Processing or EPP business, has hoarded cash, and has
entrenched itself to prevent a sale of the business. Furthermore, the Directors interests are not
well aligned with shareholders as their collective ownership of Tier stock is
insignificant. Due to this continued
poor oversight, Discovery is nominating its own experienced corporate finance
professionals to the Tier Board.
Discovery is not seeking control of the Tier board. However our nominees, if elected, will
provide the needed perspective of a large institutional investor and work with
other members of the Tier Board to take proactive steps to initiate change. The election of Discoverys nominees will act
as a referendum for shareholders to express a desire for more expeditious and
effective pursuit of shareholder value.
191 N.Wacker Drive, Suite
1685, Chicago, IL 60606
Tier Directors
December 3, 2008
Page 2
The
Board Has Supervised Mismanagement and Losses
The
current Board has overseen a culture of poor management and a long history of
operating losses. The table below in
Table A, taken directly from the Companys most recent 10-K, shows Tiers lack
of profitability for the past 5 Fiscal Years.
TABLE A
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Fiscal year ended September 30,
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(in thousands)
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2003
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2004
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2005
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2006
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2007
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Revenues
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$
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51,779
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$
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61,948
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$
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78,695
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$
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96,492
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$
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111,148
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Costs and
expenses
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$
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81,343
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$
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83,503
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$
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98,936
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$
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118,825
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$
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133,425
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Loss before
discontinued and other income (loss)
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$
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(29,564
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)
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$
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(21,555
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$
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(20,241
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$
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(22,333
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$
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(22,277
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Other Income
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$
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904
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$
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835
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$
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874
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$
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3,457
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$
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4,094
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Loss before
income taxes & discontinued operations
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$
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(28,660
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$
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(20,720
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$
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(19,367
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$
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(18,876
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$
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(18,183
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Income tax
provision (benefit)
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$
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(2,764
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$
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$
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127
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$
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45
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$
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76
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Loss from
continuing operations
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$
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(25,896
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$
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(20,720
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$
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(19,494
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$
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(18,921
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$
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(18,259
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Income from
discontinued operations, net
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$
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20,460
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$
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20,657
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$
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20,620
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$
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9,470
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$
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15,225
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Net (loss)
income
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$
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(5,436
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$
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(63
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$
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1,126
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$
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(9,451
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$
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(3,034
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A
series of 12 acquisitions from 1998 to 2002 were poorly integrated and Tier
struggled to produce profits as a small conglomerate. These struggles led to earnings manipulation,
accounting irregularities in 2005, a Nasdaq de-listing and SEC investigation in
2006, and the need for a severe strategic restructuring. Tiers CEO was replaced in May, 2006 by Ron
Rossetti, a Director since 1995. Rather than act as an agent of change, Mr. Rossetti
has perpetuated the culture of mediocrity that prevailed during his preceding
Board tenure. Since 2006, despite an
attempt to restructure the business, Tier has continued to generate significant
losses for shareholders.
The
Board Has Not Delivered Value for Shareholders
As
a result of poor oversight and ineffective decisions, the Tier Board has not
been able to generate value for shareholders. Tiers stock has languished in a
range of $6.00 to $9.00 for the past 4 years, as shown below in the stock price
graph in Table B. For a brief period in
mid 2007, Tier stock traded over $10.00.
This occurred shortly after Tier became current with SEC filings, was
re-listed on Nasdaq, and made progress on divesting non-core businesses. Many investors wrongly assumed that Tier
would also begin the process of reducing overhead and pursuing action toward a sale
of the company.
In
late 2007, Tier reported segment results disclosing for the first time the
magnitude of the companys inefficient level of corporate overhead. Tier stock began dropping. Shortly thereafter the Board made clear its
intention to remain independent instead of selling EPP or the entire
company. Investors were further
disappointed, dissenting directors resigned from the Board, and several senior
executives departed. Tiers stock has
declined steadily and is currently trading below $5.00.
2
Tier Directors
December 3, 2008
Page 3
TABLE B
Stock Price Graph:
Dec. 13, 2004 through Dec. 1, 2008
The
Board Cannot Deliver Value for EPP as a Stand-Alone Entity
Tiers
primary business today is the EPP segment.
EPP provides government and public-sector clients with an electronic
payment processing alternative for collecting taxes and other fees. EPP generates high growth and good margins as
a stand-alone business segment, as shown below in Table C.
TABLE C
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Fiscal Years Ending
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$ in thousands; FYE 9/30
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2005
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2006
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2007
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2008(b)
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EPP Gross
Revenue
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$
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56,452
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$
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78,578
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$
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99,433
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$
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117,053
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Growth
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39.2
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%
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26.5
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%
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17.7
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%
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Cost of Sales
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42,199
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59,966
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75,294
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88,375
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Gross Profit
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14,253
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18,612
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24,139
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28,678
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Gross
Margin
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25.2
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%
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23.7
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%
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24.3
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%
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24.5
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%
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EPP Operating
Expenses (a)
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12,940
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15,142
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18,203
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21,175
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As % of
Revenue
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22.9
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%
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19.3
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%
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18.3
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%
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18.1
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%
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Operating Income
(a)
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1,313
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3,470
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4,638
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8,173
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Operating
Margin
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2.3
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%
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4.4
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%
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4.7
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%
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7.0
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%
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D&A
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3,428
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3,170
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3,205
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3,500
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EBITDA (a)
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4,741
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6,640
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7,843
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11,673
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EBITDA
Margin
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8.4
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%
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8.5
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%
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7.9
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%
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10.0
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%
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(a)
Excludes All Corporate Overhead
(b)
FY
2008 estimated by Discovery based on Tier management guidance
3
Tier Directors
December 3, 2008
Page 4
Unfortunately,
Tiers very large corporate overhead overwhelms the positive earnings generated
by EPP. Tiers corporate overhead of
over $16 million per year offsets all of EPPs profits. According to Tier, the current management
team will only reduce this amount by approximately $4 million in 2009 and
another $2 million in 2010. Tier claims
that the remaining $10 million of expenses are the unavoidable costs of being
public. This claim exposes the Tier
culture of poor stewardship. Consider
that a recent independent study of the cost of being public for companies that
are much larger than Tier up to $1 billion in revenue shows an average cost
of only $2.8 million per year for expenses such as Audit, Legal, Board
Compensation, D&O Insurance and other corporate overhead.(1)
Discovery
believes that Tiers excessive overhead expenses are unacceptable. We disagree with the current Boards strategy
to let Tier generate losses for several more years. Unfortunately, the current Tier Board appears
to believe ongoing losses are not only acceptable but the best alternative for
shareholders.
The
Board is Hoarding Cash
The
Boards disservice to shareholders is also evident when considering the companys
unusually large cash balance. Tiers
latest 10Q shows $94 million in cash and a recent Company presentation
estimated a cash balance of $90 million as of September, 2008. This equates to over $4.50 per share of Tier
stock. The company has hoarded cash for
years instead of distributing capital through a share repurchase or special
dividend. Institutional shareholders
have made repeated pleas for the Board to return them their excess capital, but
the Board has ignored their requests.
Instead, the excess cash was invested in auction rate securities that
are now illiquid. Investors have become
so wary of the Tier Boards decisions and actions that the market currently
ascribes a value of less than $100 million to a company that has i) $90 million
of cash, and ii) an operation that is generating over $11 million in EBITDA
before corporate overhead expenses.
Board
and CEO Are Entrenched
One
strategy to unlock the value of EPP is to sell Tier to one of the many
strategic parties that are interested in acquiring the business. A strategic buyer could quickly eliminate
Tiers excessive corporate overhead and even add to EPPs growth and
profitability. Because of these obvious
benefits to a buyer, the right transaction could deliver a handsome premium to
Tier shareholders. Unfortunately, Tiers
Board has resisted this logical outcome for the past several years and has even
entrenched itself against logical suitors.
·
In January, 2006, Tier adopted a poison pill and removed the rights of
shareholders owning 10% or more of the company to call a special meeting. These important governance changes were made
unilaterally, without the consent of shareholders. CEO Rossetti later told Discovery that if it
wasnt for the poison pill Tier would no longer be independent.
·
In late 2006, the large shareholder Parthenon (a.k.a. Giant) attempted
to enter into good faith negotiations with Tier regarding an acquisition of
Tier in order to combine the business with an existing portfolio company. When discussions failed, Parthenon asked Tier
to pursue all strategic alternatives available to shareholders but no process
was conducted.
·
In 2007, during divestitures of non-core businesses, Tier management
told Discovery that several parties were interested in acquiring EPP or Tier as
a whole. Management further commented
that they were focused on divesting the unwanted businesses and would not
entertain other discussions.
(1) See
August 2, 2007 publication by Foley & Lardner LLP, The Cost of
Being Public in the Era of Sarbanes-Oxley.
4
Tier Directors
December 3, 2008
Page 5
·
In 2008, Discovery suggested to Tier that it pursue a proactive sale of
the business in order to deliver value for all shareholders. This recommendation was based on the
information Discovery gathered from several larger payment processing companies
that expressed an interest in acquiring the business. Chairman Rossettis response was that The
chances of me selling this business by year end are zero-to-none.
·
In late 2008, after further discussions with strategic buyers,
Discovery learned that otherwise interested acquirers were receiving clear
signals from Tier that the company did not intend to pursue a sale.
It
is not surprising that Tier has not received any unsolicited offers to acquire
the company. Any management team or
Board unwilling to sell can easily dissuade interested buyers from holding the
constructive discussions that are a prerequisite for a premium offer.
From
our contacts in the industry we know that there are logical, qualified, and
very interested buyers that will pay a premium for Tier. However, in order to determine the ultimate
value of a company, acquirers need to have access to the company and Tiers
management must be receptive. Virtually no acquirer is willing to be painted as
a hostile party. Very few will make an offer and fight a company that is
entrenched and ready to employ defenses. Tiers EPP business is a prized asset,
but it is not worth the excessive time, legal costs, and reputational risk that
would come with a litigious takeover battle.
The
Board is Not Aligned with Shareholders
The
Tier Boards complacency with regard to ongoing losses, hoarding of cash and
avoidance of a sale is not surprising given Tiers ownership structure. No Director or officer beneficially owns
more than 2% of the outstanding stock and the ownership level is de minimis if
granted options are excluded from the calculation as shown below in Table
D. In addition, Chairman Rossettis
generous employment contracts have resulted in salary, bonus, and prerequisite
payments (excluding equity compensation) since May, 2006 that exceed
$3,000,000. There seems to be little
incentive for Directors to take steps to increase shareholder value that might
risk the loss of their positions or perquisites. This is one of the key reasons why Discovery
believes that institutional owners deserve new representation on the Tier
Board.
TABLE D
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%
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%
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Number of
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Outstanding
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Options &
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Total Beneficial
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Fully Diluted
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Shares Held (1)
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Common Stock
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Warrants
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Ownership
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Common Stock
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Executive
Officers and Directors (1)
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Ronald L.
Rossetti (Chairman, CEO)
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27,365
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0.1
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%
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420,000
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447,365
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2.0
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%
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Samuel Cabot III
(Director)
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19,810
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0.1
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%
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200,000
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219,810
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1.0
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%
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Ronald Johnston
(CFO)
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0.0
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%
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200,000
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200,000
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0.9
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%
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Morgan P.
Guenther (Director)
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1,000
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0.0
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%
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150,000
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151,000
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0.7
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%
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Charles W.
Berger (Director)
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0.0
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%
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140,000
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140,000
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0.6
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%
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Keith Kendrick
(SVP, Strategic Marketing)
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0.0
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%
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100,000
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100,000
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0.4
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%
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John J. Delucca
(Director)
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0.0
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%
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40,000
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40,000
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0.2
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%
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James R. Stone
(Director)
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0.0
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%
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38,337
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38,337
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0.2
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%
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Philip Heasley
(Director)
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0.0
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%
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10,002
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10,002
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0.0
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%
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David Poe
(Director)
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0.0
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%
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6,668
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6,668
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0.0
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%
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Total (10
persons)
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48,175
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0.2
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%
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1,305,007
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1,353,182
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6.1
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%
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5
Tier Directors
December 3, 2008
Page 6
The
Board Has Had An Opportunity to Deliver Value
The
Tier Board consists of eight Directors, four of whom have had an opportunity to
serve shareholders for a very long period.
Mr. Rossetti has been a Director for 14 years, Mr. Cabot has
been a Director for 12 years, Mr. Guenther has been a Director for 9
years, and Mr. Berger has been a Director for 7 years. These tenured Directors have overseen a long
period of significant losses and have not shown an ability to create value for
shareholders. Three other Directors have
served on the Tier Board in recent years, but all three either resigned or did
not seek re-election. The other four
current directors joined Tier more recently (Mr. Delucca and Mr. Stone
in 2007, Mr. Heasley and Mr. Poe in 2008). Discovery has not been
allowed to meet with the newest Directors, but we hope that their fresh
perspectives and industry experience prove to be beneficial to
shareholders. Nevertheless, none of the
current Directors bring the perspective of an institutional investor and they
have little or no capital invested in Tier.
Solution:
Vote for Discovery Directors
Discovery
is nominating two of its own professionals to the Tier Board in order to
advance the interests of all shareholders.
The two Nominees have extensive experience as executives of financial
institutions, advisors to public and private companies, founders of a successful
investment firm, publishers of research on small capitalization public
companies, valuation experts and leaders of M&A transactions. Discoverys $16 million invested in 9.9% of
Tier is an important investment and the position will align Discovery with all
fellow shareholders.
The
Nominees are not seeking control of the Tier Board. Rather, if elected, the Nominees intend to
bring much needed perspective as a large investor and to work constructively
with the other members of the Tier Board, as well as the existing Tier
management team. Discovery intends to
help Tier expeditiously reduce excessive overhead, determine the appropriate
amount of capital to return to shareholders, eliminate unnecessary corporate
defenses, and proactively evaluate all strategic alternatives to unlock the value
of EPP for all Tier shareholders.
Sincerely,
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DISCOVER
EQUITY PARTNERS, L.P.
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By:
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Discovery
Group I
, LLC,
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its General Partner
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By:
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/s/ Michael R. Murphy
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Michael R. Murphy
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Managing Member
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6
Tier Directors
December 3, 2008
Page 7
SPECIAL NOTE TO TIER
TECHNOLOGIES, INC. STOCKHOLDERS
In
connection with the upcoming 2009 Annual Meeting of Stockholders of Tier
Technologies, Inc. (Tier), Discovery Equity Partners, L.P. and certain
related parties (Discovery) may file a proxy statement with the Securities
and Exchange Commission (the SEC) to solicit stockholders of Tier with
respect to the election of directors and one or more stockholder proposals.
TIER
STOCKHOLDERS ARE STRONGLY ADVISED TO READ THE PROXY STATEMENT WHEN AND IF
AVAILABLE BECAUSE IT WILL CONTAIN IMPORTANT INFORMATION.
Tier stockholders may obtain a free copy of the proxy statement and
other material (when and if available) and any other documents that may be
filed by Discovery in connection with the 2009 Annual Meeting of Stockholders
of Tier for free at the Internet website maintained by the SEC at
www.sec.gov. In addition, if the proxy
statement is filed, Discovery will make additional copies of the proxy
statement and any amendments to the proxy statement available for free to the
stockholders of Tier. Please direct your
request for the proxy statement to Discovery Group, 191 North Wacker Drive, Suite 1685,
Chicago, IL 60606, Attention: Michael Murphy, Tel.: (312) 265-9600.
In accordance with Rule 14a-12(a)(1)(i) of the Securities
Exchange Act of 1934, as amended, the persons who may be deemed participants in
any proxy solicitation in connection with Tiers 2009 Annual Meeting of
Stockholders that Discovery may engage in are as follows: Discovery Equity
Partners, L.P., Discovery Group I, LLC., Daniel J. Donoghue and Michael R.
Murphy. The number of shares of Tier
common stock beneficially owned by these persons as of December 3, 2008
are as follows: Discovery Equity Partners, L.P. (1,684,608), Discovery Group I,
LLC (1,
957,563
), Daniel
J. Donoghue (1,957,563) and Michael
R. Murphy (1,957,563).
7
For Immediate Release
Thursday, December 4, 2008
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|
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Discovery Nominates Two New
Directors to Serve on Tier Board
Chicago, IL Discovery
Equity Partners announced today that it intends to nominate two candidates for
election to the Board of Tier Technologies (Nasdaq TIER) at Tiers 2009
Annual Meeting of Stockholders, expected to take place in February, 2009. Discovery manages funds that own 9.9% of Tiers
outstanding stock.
Discovery expects its two
nominees, Daniel J. Donoghue and Michael R. Murphy, both executives at
Discovery, to bring the much needed perspective of a large shareholder to the
Tier Board of Directors. The nominees
plan to work to help Tier expeditiously reduce unnecessary overhead, determine
the appropriate amount of excess cash to return to shareholders, eliminate
structural defenses, and proactively evaluate all available strategic
alternatives.
Discovery has also
submitted a shareholder proposal to Tier in accordance with SEC Rule 14a-8. This proposal will give shareholders an
opportunity to vote - at the same annual meeting - to recommend the reversal of
a change the Tier Board made almost 3 years ago without shareholder input or
approval. The Discovery proposal allows shareholders to vote to recommend the
rescission of Tiers poison pill and the reinstatement of the right of 10%
shareholders to call a special meeting.
Additional details on the
nominees, Discovery, the reasons for the nomination, and the shareholder
proposal can be found in filings Discovery made with the Securities and
Exchange Commission at www.sec.gov and at www.thediscoverygroup.com/tier.htm.
About The Discovery Group
Discovery Group is a merchant banking firm that manages private
partnerships in highly specialized investment strategies and conducts corporate
merger and advisory services. The business was founded in 2002 and is based in
Chicago. Investors in these funds include several large university endowments,
nationally-recognized charitable foundations and a variety of trusts, family
offices and wealth advisors. Discoverys corporate finance expertise extends to
public and private companies in a broad range of industries.
Contact:
Meghan OCallaghan
The Discovery Group
312-265-9596
mocallaghan@thediscoverygroup.com
SPECIAL NOTE TO TIER
TECHNOLOGIES, INC. STOCKHOLDERS
In
connection with the upcoming 2009 Annual Meeting of Stockholders of Tier
Technologies, Inc. (Tier), Discovery Equity Partners, L.P. and certain
related parties (Discovery) may file a proxy statement with the Securities
and Exchange Commission (the SEC) to solicit stockholders of Tier with
respect to the election of directors and one or more stockholder proposals.
TIER
STOCKHOLDERS ARE STRONGLY ADVISED TO READ THE PROXY STATEMENT WHEN AND IF
AVAILABLE BECAUSE IT WILL CONTAIN IMPORTANT INFORMATION.
Tier stockholders
may obtain a free copy of the proxy statement and other material (when and if
available) and any other documents that may be filed by Discovery in connection
with the 2009 Annual Meeting of Stockholders of Tier for free at the Internet
website maintained by the SEC at www.sec.gov.
In addition, if the proxy statement is filed, Discovery will make
additional copies of the proxy statement and any amendments to the proxy
statement available for free to the stockholders of Tier. Please direct your request for the proxy
statement to Discovery Group, 191 North Wacker Drive, Suite 1685, Chicago,
IL 60606, Attention: Michael Murphy, Tel.: (312) 265-9600.
In accordance with
Rule 14a-12(a)(1)(i) of the Securities Exchange Act of 1934, as
amended, the persons who may be deemed participants in any proxy solicitation
in connection with Tiers 2009 Annual Meeting of Stockholders that Discovery
may engage in are as follows: Discovery Equity Partners, L.P., Discovery Group
I, LLC., Daniel J. Donoghue and Michael R. Murphy. The number of shares of Tier common stock
beneficially owned by these persons as of December 3, 2009 are as follows:
Discovery Equity Partners, L.P. (1,684,608), Discovery Group I, LLC
(1,957,563), Daniel J. Donoghue (1,957,563) and Michael R. Murphy (1,957,563).
- End -
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