EXHIBIT 2.5
CONFIDENTIAL TREATMENT REQUESTED UNDER 17 C.F.R.
Sections 200.80(b)(4), 200.83 AND 240.24b-2
AMENDMENT #3
TO AGREEMENT FOR PURCHASE
AND SALE OF ASSETS
This Amendment #3 (the "Amendment") to the Agreement for Purchase and Sale
of Assets (the "Purchase Agreement") entered into as of March 9, 2000 and
amended on March 29, 2000, by and among Tier Technologies, Inc., a California
corporation ("Tier"), The SCA Group, Inc., an Illinois corporation ("SCA") and
George R. Stout ("Shareholder"), is entered into as of May 15, 2000 (the
"Amendment Date").
Recitals
Whereas, pursuant to the terms of the Purchase Agreement, Tier has
purchased certain assets from SCA;
Whereas, the parties desire to change the scheduled time of payment for the
Post-Closing Payment to November 1, 2000; and
Whereas, the parties desire to set forth their agreement with regard to the
responsibility for any severance payments for a particular Transferring
Employee.
Agreement
Now, Therefore, in consideration of the benefits described in the Recitals
hereto and the mutual promises hereinafter set forth, the parties hereto agree
as follows:
1. Except as otherwise defined herein, capitalized terms used but not defined
herein shall have the respective meanings given to them in the Purchase
Agreement.
2. Section 2.4(b) of the Purchase Agreement is hereby amended and restated in
its entirety as follows:
"(b) Four Million Nine Hundred Fifty Thousand Dollars ($4,950,000),
subject to adjustment for each of the following that apply: (i) in the
event that the pro forma projections for March 2000, as set forth on
Schedule 3.4(b), are not met, then the amount payable to Seller shall
be reduced by an amount equal to Two Hundred Twenty Four Thousand Five
Hundred Twenty Dollars ($224,520) less the actual operating income for
March 2000; (ii) in the event that the actual aggregate EBT excluding
the corporate overhead allocation for the months of April and May is
less than Six Hundred Seventy Two Thousand Dollars ($672,000) then the
amount payable to Seller shall be reduced by that shortfall; and (iii)
in the event that Purchaser incurs any obligation under COBRA (as
defined in Section 10.11) to provide continuation coverage to any
Seller Cobra Individual (as defined in Section
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10.11), the amount payable to Seller shall be reduced by the COBRA
Adjustment, as set forth in Section 10.11 (such adjusted amount
referred to herein as the "Post-Closing Payment"), payable on November
1, 2000. On November 1, 2000, Purchaser shall pay the Post-Closing
Payment in Immediately Available Funds (i) first to deposit with the
Escrow Agent One Hundred Thirty Five Thousand Dollars ($135,000) of
the Post-Closing Payment (this $135,000 deposit, together with the
cash deposited with the Escrow Agent at the time of Closing is
referred to herein as the "Escrow Cash"), and (ii) to pay the
remainder of the Post-Closing Payment to the Seller. Escrow Agent
shall hold the Escrow Cash in an interest-bearing escrow account and
shall disburse funds therefrom in accordance with the Escrow
Agreement. Seller acknowledges that its legal and beneficial interests
in the Escrow Cash are subject to the terms of this Agreement and the
Escrow Agreement.
3. A new section 10.13 is hereby added to the Purchase Agreement as follows:
"10.13 Severance Payments. Shareholder agrees to reimburse Purchaser
for any severance payments made to [* * *] during the three
year period following the Closing Date. Shareholder shall pay to
Purchaser all amounts owing under this Section 10.12 within ten (10)
days of receiving from Purchaser written notice of the amount due."
4. Except as set forth in Sections 2 and 3 above, all terms and conditions of
the Purchase Agreement shall remain in full force and effect.
5. This Amendment shall be governed by and construed in accordance with the
laws of the State of California.
6. This Amendment may be executed in two or more counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument.
* Confidential treatment requested.
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In Witness Whereof, the parties have executed this Amendment on the day and
year first written above.
Tier Technologies, Inc.
By: /S/ JIM BILDNER
---------------------
The SCA Group, Inc.
By: /S/ GEORGE R. STOUT
--------------------
/S/ GEORGE R. STOUT
--------------------
George R. Stout
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