EXHIBIT 10.44


 


 


First Amendment

Third Amended and Restated Employment Agreement


 


This First Amendment  (the “Amendment”) is entered into on August 8, 2002 by
Tier Technologies, Inc., (the “Company”) and James L. Bildner (“Bildner”).  Capitalized terms used herein but not
defined herein shall have the meanings ascribed to them in that certain Third
Amended and Restated Employment Agreement dated October 1, 2000 between the
Company and Bildner (the “Prior Agreement”);


Whereas,  the Company and Bildner previously entered into the
Prior Agreement;


Whereas,  the parties desire to amend such Prior Agreement as
further set forth herein.


Now, Therefore,  in consideration of the premises and the covenants
herein contained, the parties hereby agree to amend the Prior Agreement as
follows:


1.                                      Section 5.1 shall be replaced in its
entirety by:


“In the event that
either: 1) a Change of Control (as defined below) of the Company occurs prior
to the expiration of the Term; provided
that in the event that the Company requests that Bildner provide
transition services following the Change of Control for a period not to exceed
one year (“Transition Services”), Bildner agrees to provide such Transition
Services; or 2) the Company terminates Bildner’s employment without Cause
pursuant to Section 4 herein, within three (3) months prior to the effective
date of a Change of Control of the Company, then: (i) Bildner will be entitled
to a lump sum payment equivalent to three (3) years of Bildner’s Base Salary in
effect at the time of the Change of Control, less standard deductions and
withholdings; (ii) any options to purchase stock (common or otherwise) in the
Company granted to Bildner pursuant to any plan or otherwise, or any equivalent
or similar rights which appreciate or tend to appreciate as the value of the
Company’s stock appreciates, shall become immediately accelerated and fully
vested and any restrictions on such options or equivalent or similar rights
shall, to the extent permissible under applicable securities laws, fully lapse;
and the Company shall endeavor to cause any restrictions on such options or
equivalent or similar rights not lapsed by operation of this clause to so
lapse; and (iii) in the event Bildner elects continued coverage under COBRA,
the Company will reimburse Bildner for the same portion of Bildner’s COBRA
health insurance premium that it paid during Bildner’s employment up until the
earlier of either: (i) the last day of Bildner’s COBRA health insurance
benefits, or ii) the date on which Bildner becomes covered under any other
group health plan (as an employee or otherwise). (Sections 5.1 (i)-(iii) are
collectively referred to herein as the “Change of Control Benefit
Package”).  Subject to the terms herein,
Bildner will be entitled to the Change of Control Benefit Package upon the
effective date of the Change of Control, provided that, in the event the
Company requests that Bildner provide Transition Services, Bildner will be
entitled to the Change of Control Benefit Package on the earlier of: i) the
date upon which the Company terminates Bildner’s employment with or 


 


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without Cause; ii)
the date on which the Company informs Bildner that it does not need him to
provide or no longer needs him to provide the Transition Services; or iii) the
date upon which Bildner completes the Transition Services.  Notwithstanding any other provision of this
Agreement to the contrary, to the extent the Change of Control requires the
approval of the shareholders of the Company at a meeting or by written consent,
this Section 5 and the benefits provided herein shall not have any force or
effect unless either (a) Bildner beneficially owns or otherwise controls the
right to vote, directly or indirectly, shares representing less than twenty
percent (20%) of the voting power of the Company on the record date for a vote
of the shareholders relating to the Change of Control (the “Record Date”) or
(b) to the extent Bildner beneficially owns or otherwise controls the right to
vote, directly or indirectly, shares representing twenty percent (20%) of the
voting power of the Company (“Maximum Voting Shares”) or more on the Record
Date, Bildner authorizes by an irrevocable proxy the vote of all shares in
excess of the Maximum Voting Shares he beneficially owns or otherwise controls
the right to vote, directly or indirectly, in accordance with the vote cast by
shareholders of record voting in such vote, including the vote of shares cast
by Bildner with respect to his Maximum Voting Shares.


2.                                      Section 5.2 shall be replaced in its
entirety by:


“For purposes of
this Agreement, Change of Control means:
(i) a sale or other disposition of all or substantially all of the assets of
the Company; (ii) a merger or consolidation in which the Company is not the surviving
entity and in which the shareholders of the Company immediately prior to such
consolidation or merger own less than fifty percent (50%) of the surviving
entity’s voting power immediately after the transaction; (iii) a reverse merger
in which the Company is the surviving entity but the shares of the Company’s
Common Stock outstanding immediately preceding the merger are converted by
virtue of the merger into other property, whether in the form of securities,
cash or otherwise, and in which the shareholders of the Company immediately
prior to such merger own less than fifty percent (50%) of the Company’s voting
power immediately after the transaction; (iv) a stock exchange or cash tender
offer in which the shareholders of the Company immediately prior to the closing
of resulting acquisition of shares own less than fifty percent (50%) of the
voting power immediately after the closing; or (v) any other capital
reorganization in which more than fifty percent (50%) of the shares of the
Company entitled to vote are exchanged.”


3.             Except as specifically amended by this
Amendment, the terms and conditions of the Prior Agreement shall remain in full
force and effect.  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.


 


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In Witness
Whereof, the
parties have duly executed this Amendment as of the date first written above.


 


	
   

  	
   

  	
  Tier Technologies, Inc.

  	
   

  	
  James L. Bildner

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
  /s/ Laura B. DePole

  	
   

  	
  /s/ James L. Bildner

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Title:

  	
   

  	
  CFO/Secretary

  	
   

  	
  Date: 

  	
   

  	
  September 25, 2002

  	 

	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Date:

  	
   

  	
  September 19, 2002

  	
   

  	
   

  
											



 


 


 


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