- Amended Statement of Beneficial Ownership (SC 13D/A)
16 January 2010 - 6:42AM
Edgar (US Regulatory)
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UNITED STATES
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SECURITIES AND EXCHANGE COMMISSION
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Washington, D.C. 20549
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SCHEDULE 13D
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Under
the Securities Exchange Act of 1934
(Amendment No. 7)*
(Name
of Issuer)
Common Stock, par value $0.01 per share
(Title
of Class of Securities)
(CUSIP
Number)
John C. Rutherford
c/o Parthenon Capital LLC
265 Franklin Street
18
th
Floor
Boston, MA 02110
Telephone: (617) 960-4000
(Name,
Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
WITH A COPY TO:
Joshua N. Korff
Kirkland & Ellis LLP
601 Lexington Avenue
New York, New York 10022
(212) 446-4800
January 8, 2010
(Date
of Event Which Requires Filing of this Statement)
If the filing person has
previously filed a statement on Schedule 13G to report the acquisition that is
the subject of this Schedule 13D, and is filing this schedule because of
§§240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box.
o
Note
: Schedules filed in paper format shall
include a signed original and five copies of the schedule, including all
exhibits. See Rule 13d-7 for other parties to whom copies are to be sent.
*
The
remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities,
and for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on
the remainder of this cover page shall not be deemed to be "filed"
for the purpose of Section 18 of the Securities Exchange Act of 1934
("Act") or otherwise subject to the liabilities of that section of
the Act but shall be subject to all other provisions of the Act (however, see
the Notes).
CUSIP
No.
88650Q100
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1.
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Names of Reporting Persons.
I.R.S. Identification Nos. of above persons (entities only)
Giant Investment, LLC
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2.
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Check
the Appropriate Box if a Member of a Group (See Instructions)
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(a)
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o
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(b)
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o
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3.
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SEC
Use Only
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4.
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Source
of Funds (See Instructions)
WC
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5.
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Check if Disclosure of
Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)
o
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6.
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Citizenship or Place of
Organization
Delaware
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Number of
Shares
Beneficially
Owned by
Each
Reporting
Person With(1)
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7.
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Sole
Voting Power
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8.
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Shared
Voting Power
1,799,321
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9.
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Sole
Dispositive Power
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10.
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Shared Dispositive Power
1,799,321
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11.
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Aggregate
Amount Beneficially Owned by Each Reporting Person
(1)
1,799,321
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12.
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Check
if the Aggregate Amount in Row (11) Excludes Certain Shares (See
Instructions)
o
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13.
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Percent
of Class Represented by Amount in Row (11)
9.9%
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14.
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Type
of Reporting Person (See Instructions)
OO
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(1) See discussion in Item 5 of
this Schedule 13D.
2
CUSIP
No.
88650Q100
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1.
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Names of Reporting Persons.
I.R.S. Identification Nos. of above persons (entities only)
Parthenon Investors II, L.P.
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2.
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Check
the Appropriate Box if a Member of a Group (See Instructions)
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(a)
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o
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(b)
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o
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3.
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SEC
Use Only
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4.
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Source
of Funds (See Instructions)
WC
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5.
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Check if Disclosure of
Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)
o
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6.
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Citizenship or Place of
Organization
Delaware
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Number of
Shares
Beneficially
Owned by
Each
Reporting
Person With(2)
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7.
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Sole
Voting Power
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8.
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Shared
Voting Power
1,748,401
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9.
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Sole
Dispositive Power
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10.
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Shared Dispositive Power
1,748,401
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11.
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Aggregate
Amount Beneficially Owned by Each Reporting Person
(2)
1,748,401
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12.
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Check
if the Aggregate Amount in Row (11) Excludes Certain Shares (See
Instructions)
o
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13.
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Percent
of Class Represented by Amount in Row (11)
9.6%
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14.
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Type
of Reporting Person (See Instructions)
PN
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(2) See discussion in Item 5 of
this Schedule 13D.
3
CUSIP
No.
88650Q100
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1.
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Names of Reporting Persons.
I.R.S. Identification Nos. of above persons (entities only)
PCap Partners II, LLC
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2.
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Check
the Appropriate Box if a Member of a Group (See Instructions)
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(a)
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o
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(b)
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o
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3.
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SEC
Use Only
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4.
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Source
of Funds (See Instructions)
WC
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5.
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Check if Disclosure of
Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)
o
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6.
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Citizenship or Place of
Organization
Delaware
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Number of
Shares
Beneficially
Owned by
Each
Reporting
Person With(3)
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7.
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Sole
Voting Power
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8.
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Shared
Voting Power
1,748,401
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9.
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Sole
Dispositive Power
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10.
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Shared Dispositive Power
1,748,401
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|
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11.
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Aggregate
Amount Beneficially Owned by Each Reporting Person
(3)
1,748,401
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12.
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Check
if the Aggregate Amount in Row (11) Excludes Certain Shares (See
Instructions)
o
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13.
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Percent
of Class Represented by Amount in Row (11)
9.6%
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14.
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Type
of Reporting Person (See Instructions)
OO
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(3) See discussion in Item 5 of
this Schedule 13D.
4
CUSIP No.
88650Q100
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1.
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Names of Reporting Persons. I.R.S. Identification
Nos. of above persons (entities only)
PCap II, LLC
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2.
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Check the Appropriate Box
if a Member of a Group (See Instructions)
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(a)
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o
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(b)
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o
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3.
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SEC Use Only
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4.
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Source of Funds (See
Instructions)
WC
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5.
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Check if Disclosure of Legal Proceedings Is
Required Pursuant to Items 2(d) or 2(e)
o
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6.
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Citizenship or Place of Organization
Delaware
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Number of
Shares
Beneficially
Owned by
Each
Reporting
Person With(4)
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7.
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Sole Voting Power
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8.
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Shared Voting Power
1,748,401
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9.
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Sole Dispositive Power
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10.
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Shared Dispositive Power
1,748,401
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11.
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Aggregate Amount
Beneficially Owned by Each Reporting Person
(4)
1,748,401
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12.
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Check if the Aggregate Amount
in Row (11) Excludes Certain Shares (See Instructions)
o
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13.
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Percent of Class
Represented by Amount in Row (11)
9.6%
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14.
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Type of Reporting Person
(See Instructions)
OO
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(4) See discussion in Item 5 of this Schedule
13D.
5
CUSIP No.
88650Q100
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1.
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Names of Reporting Persons. I.R.S. Identification
Nos. of above persons (entities only)
John C. Rutherford
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2.
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Check the Appropriate Box
if a Member of a Group (See Instructions)
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(a)
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o
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(b)
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o
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3.
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SEC Use Only
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4.
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Source of Funds (See
Instructions)
WC
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5.
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Check if Disclosure of Legal Proceedings Is
Required Pursuant to Items 2(d) or 2(e)
o
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6.
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Citizenship or Place of Organization
New Zealand
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Number of
Shares
Beneficially
Owned by
Each
Reporting
Person With(5)
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7.
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Sole Voting Power
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8.
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Shared Voting Power
1,799,321
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9.
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Sole Dispositive Power
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10.
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Shared Dispositive Power
1,799,321
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11.
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Aggregate Amount
Beneficially Owned by Each Reporting Person(5)
1,799,321
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12.
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Check if the Aggregate
Amount in Row (11) Excludes Certain Shares (See Instructions)
o
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13.
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Percent of Class
Represented by Amount in Row (11)
9.9%
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14.
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Type of Reporting Person
(See Instructions)
IN
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(5) See discussion in Item 5 of this Schedule
13D.
6
CUSIP No.
88650Q100
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1.
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Names of Reporting Persons. I.R.S. Identification
Nos. of above persons (entities only)
Ernest K. Jacquet
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2.
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Check the Appropriate Box
if a Member of a Group (See Instructions)
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(a)
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o
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(b)
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o
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3.
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SEC Use Only
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4.
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Source of Funds (See
Instructions)
WC
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5.
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Check if Disclosure of Legal Proceedings Is
Required Pursuant to Items 2(d) or 2(e)
o
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6.
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Citizenship or Place of Organization
United States
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Number of
Shares
Beneficially
Owned by
Each
Reporting
Person With(6)
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7.
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Sole Voting Power
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8.
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Shared Voting Power
1,799,321
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9.
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Sole Dispositive Power
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10.
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Shared Dispositive Power
1,799,321
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11.
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Aggregate Amount
Beneficially Owned by Each Reporting Person(6)
1,799,321
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12.
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Check if the Aggregate
Amount in Row (11) Excludes Certain Shares (See Instructions)
o
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13.
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Percent of Class
Represented by Amount in Row (11)
9.9%
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14.
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Type of Reporting Person
(See Instructions)
IN
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(6) See discussion in Item 5 of this Schedule
13D.
7
This Statement on Schedule 13D/A (this Statement)
relates to the shares of Common Stock, par value $0.01 per share ,
(the
Common Stock
) of Tier Technologies, Inc. (
Tier
). This
Statement is filed by Giant Investment, LLC, a Delaware limited liability
company (
Giant
); Parthenon Investors II, L.P., a Delaware Limited
Partnership (
Parthenon
); PCap Partners II, LLC, a Delaware limited
liability company (
PCap Partners
); PCap II, LLC, a Delaware limited
liability company (
PCap II
); John C. Rutherford and Ernest K. Jacquet.
The information set forth in response to each separate
Item below shall be deemed to be a response to all Items where such information
is relevant. The Schedule 13D originally
filed on July 15, 2005 and amended on August 9, 2005, December 19, 2005,
February 9, 2007, October 3, 2007, December 30, 2008 and January 6, 2009 is
hereby amended further as follows:
8
CUSIP No.
88650Q100
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Item 4.
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Purpose of Transaction
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Item 4 is hereby amended and
restated in its entirety as follows:
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The reporting persons originally acquired shares of Tier for
investment purposes because of their belief that the market price of the
Common Stock was less than the intrinsic value of Tier on a per-share
basis. The reporting persons intend to
optimize the value of their investments and, therefore, review from time to
time Tiers business affairs, financial position, governance, management,
capital structure, future plans and contractual rights and obligations and
consider all alternatives available to the reporting persons with respect to
their investment. As part of such
review, the reporting persons may also, from time to time, seek to meet with
and have discussions with Tiers management and directors and may communicate
with other holders of the Common Stock to understand their views of Tiers
operating strategy and financial performance.
Based on such review, the reporting persons believe that Tier would
benefit from the re-election of Mr. Zachary Sadek to the board of directors
of Tier.
As a result, on January 8, 2010, Giant, Parthenon, PCap Partners,
PCap II and John C. Rutherford (collectively, the
Parthenon Group
)
entered into an agreement (the
Proxy Agreement
) with Tier, pursuant
to which Tiers board of directors agreed to (i) nominate Mr. Zachary
Sadek for re-election as a director of Tier at Tiers 2010 annual meeting of
stockholders (the
2010 Annual Meeting
), (ii) recommend that the
stockholders of Tier at the 2010 Annual Meeting vote to elect Mr. Zachary
Sadek as a director, and (iii) use its reasonable best efforts (which
shall include the solicitation of proxies and the voting of shares for which
the designees of Tiers board of directors hold proxies) to ensure that Mr. Zachary
Sadek is elected at the 2010 Annual Meeting, subject to certain limitations. In addition, under the Proxy Agreement, the
Parthenon Group granted an irrevocable proxy (the
Proxy
) to certain
executive officers of Tier (the
Proxyholders
) to vote on behalf of
the Parthenon Group all Common Stock and other securities of Tier entitled to
vote in the election of directors (the
Voting Securities
)
beneficially owned by the Parthenon Group at the 2010 Annual Meeting in favor
of the election of any person at the 2010 Annual Meeting (i) nominated
by Tiers board of directors and serving on Tiers board of directors as of January 8,
2010 and/or (ii) nominated by Tiers board of directors in accordance
with the nomination procedures of Tiers board of directors in effect on January 8,
2010 and for whom the Parthenon Group has authorized the Proxyholders to
vote. Pursuant to the Proxy Agreement,
the Parthenon Group is also subject to certain restrictions with respect to,
among other things, the solicitation of proxies, election of directors of
Tier and transfer of beneficial ownership of the Voting Securities until the 2010
Annual Meeting.
In addition to the
foregoing, the reporting persons may engage Tier in discussions that may
include one or more of the other actions described in subsections
(a) through (j) of Item 4 of Schedule 13D. Depending on various factors including,
without limitation, Tiers financial position and strategic direction, the
outcome of the discussions with Tiers management, directors and/or
stockholders, the outcome of the election of directors at Tiers 2010 annual
meeting of stockholders, actions taken by the board of directors of Tier,
price levels of the Common Stock, other investment opportunities available to
the reporting persons, conditions in the securities market and general
economic and industry conditions, the reporting persons may in the future
take such actions with respect to their investments in Tier as they deem
appropriate including, without limitation, acquiring or disposing the Common
Stock or other securities of Tier through open market transactions, privately
negotiated transactions, a tender offer, a merger, an exchange offer, or
otherwise, engaging in any hedging or similar transactions with respect to
the reporting persons holdings of Tiers Common Stock or other securities
and/or otherwise changing their intention with respect to any and all matters
referred to in Item 4 of Schedule 13D.
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Item
5.
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Interest
in Securities of the Issuer
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Item 5
has been amended or supplemented as follows:
As of January 12, 2010:
(a)-(b) Giant directly beneficially owns 1,799,321
shares of Common Stock, representing approximately 9.9% of the outstanding
Common Stock of Tier based on 18,150,965 shares of Common Stock outstanding as
reported in Tiers annual report on Form 10-K filed on November 10, 2009. Accordingly, as parents of Giant, each of
Parthenon (managing member of Giant), PCap Partners (general partner of
Parthenon) and PCap II (managing member of PCap Partners) may be deemed to
beneficially own their proportional interest in the shares of Common Stock
directly beneficially owned by Giant, comprising 1,748,401 shares of Common
Stock, representing approximately 9.6% of the outstanding Common Stock of Tier.
Additionally, as control
persons of various entities indirectly investing in Giant, each of Mr. Rutherford
and Mr. Jacquet may be deemed to beneficially own a proportional interest in
the shares of Common Stock directly beneficially owned by Giant comprising
1,799,321 shares of Common Stock, representing approximately 9.9% of the
outstanding Common Stock of Tier.
(c) No transactions in
the Issuers Common Stock were executed by the reporting persons.
Item 6.
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Contracts, Arrangements, Understandings or
Relationships with Respect to Securities of the Issuer
|
Item
6 is hereby amended and restated in its entirety as follows:
The information set
forth under Item 4 is hereby incorporated by reference.
The descriptions of the
Proxy Agreement and the Proxy do not purpose to be complete and are qualified
in their entirety by reference to the complete text of such documents, copies
of which are filed as exhibits hereto and incorporated herein by reference.
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9
CUSIP No. 88650Q100
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Item 7.
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Material to Be Filed as Exhibits
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99.1
Joint Filing
Agreement.
99.2
Proxy
Agreement, dated January 8, 2010, by and among Giant Investment, LLC,
Parthenon Investors II, L.P., PCap Partners II, LLC, PCap II, LLC, John C.
Rutherford and Tier Technologies, Inc.
99.3
Irrevocable
Proxy, dated January 8, 2010, by and among Giant Investment, LLC, Parthenon
Investors II, L.P., PCap Partners II, LLC, PCap II, LLC and John C.
Rutherford.
|
10
After reasonable inquiry and to the best of each of the undersigned's
knowledge and belief, the undersigned certifies that the information set forth
in this statement is true, complete and correct.
Dated: January 15, 2010
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Giant
Investment, LLC
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By: Parthenon Investors
II, L.P.,
as managing member
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By: PCap Partners II,
LLC,
as general partner
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By: PCap II, LLC,
as general partner
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By: /s/
John C. Rutherford
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Name:
John C. Rutherford
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Title: Managing Member
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Parthenon
Investors II, L.P.
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By: PCap Partners II,
LLC,
as general partner
|
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By: PCap II, LLC,
as general partner
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By: /s/
John C. Rutherford
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Name:
John C. Rutherford
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Title: Managing Member
|
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PCap
Partners II, LLC
|
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By: PCap II, LLC,
as general partner
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By: /s/
John C. Rutherford
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Name:
John C. Rutherford
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Title: Managing Member
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11
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PCap
II, LLC
|
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By: /s/
John C. Rutherford
|
|
|
Name:
John C. Rutherford
|
|
Title: Managing Member
|
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/s/
John C. Rutherford
|
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Name:
John C. Rutherford
|
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/s/
Ernest K. Jacquet
|
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Name:
Ernest K. Jacquet
|
12
INDEX TO EXHIBITS
Exhibit
Number
|
|
Document
|
|
99.1
|
|
Joint Filing Agreement.
|
|
|
|
|
|
99.2
|
|
Proxy Agreement, dated January 8, 2010, by and among Giant Investment,
LLC, Parthenon Investors II, L.P., PCap Partners II, LLC, PCap II, LLC, John
C. Rutherford and Tier Technologies, Inc.
|
|
|
|
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99.3
|
|
Irrevocable Proxy, dated
January 8, 2010, by and among Giant Investment, LLC, Parthenon Investors
II, L.P., PCap Partners II, LLC, PCap II, LLC and John C. Rutherford.
|
|
13
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