As filed with the Securities and Exchange Commission on April 24, 2009
Registration No.
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
TESSCO TECHNOLOGIES INCORPORATED
(Exact name of registrant as specified in its charter)
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Delaware |
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52-0729657 |
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(State or other jurisdiction of |
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(I.R.S. Employer Identification No.) |
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incorporation or organization) |
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11126 McCormick Road |
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Hunt Valley, Maryland |
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21031 |
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(Address of Principal Executive Offices) |
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TESSCO TECHNOLOGIES INCORPORATED
SECOND AMENDED AND RESTATED 1994 STOCK AND INCENTIVE PLAN
(Full title of the plan)
David M. Young
Senior Vice President and Chief Financial Officer
11126 McCormick Road
Hunt Valley, Maryland 21031
(Name and address of agent for service)
(410) 229-1000
(Telephone number, including area code, of agent for service)
with a copy to:
Douglas M. Fox, Esquire
Ballard Spahr Andrews & Ingersoll, LLP
18th Floor
300 East Lombard Street
Baltimore, Maryland 21202-3268
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act.
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Large accelerated filer o |
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Accelerated filer o |
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Non-accelerated filer o (Do not check if a smaller reporting company) |
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Smaller reporting company x |
CALCULATION OF REGISTRATION FEE
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Title of Securities to
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Amount to be
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Proposed Maximum
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Proposed Maximum
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Amount of
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Common Stock, par value $0.01 per share, with attached Preferred Stock Purchase Rights |
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150,000 shares |
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$8.24 |
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$1,236,000 |
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$68.97 |
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(1) |
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Each share of TESSCO Technologies Incorporated (the “Registrant”) common stock, par value $0.01 per share (“Common Stock”), has attached thereto one Preferred Stock Purchase Right (each, a “Right”) issued pursuant to a Rights Agreement, dated as of February 1, 2008, between the Registrant and Mellon Investor Services, LLC, as rights agent. No separate consideration is payable for the Rights. Therefore, the registration fee for such securities is included in the registration fee for the Common Stock. |
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(2) |
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Pursuant to Rule 416(a) promulgated under the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement shall be deemed to cover an indeterminate number of additional shares of Common Stock (and related Rights) issuable in the event the number of outstanding shares of the Registrant is increased by reason of any stock dividend, stock split, recapitalization, merger, consolidation or reorganization or similar transaction. |
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(3) |
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Estimated solely for the purpose of calculating the registration fee. In accordance with Rule 457(h) promulgated under the Securities Act, the price shown is based upon the average of the high and low prices reported for the Common Stock on the NASDAQ Global Market on April 22, 2009. |
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(4) |
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Calculated under Section 6(b) of the Securities Act as .00005580 of the aggregate offering price. |
PART II -
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Explanatory Note
TESSCO Technologies Incorporated (the “Registrant”) is filing this registration statement to register an additional 150,000 shares of its common stock, par value $0.01 per share (“Common Stock”), for issuance under the TESSCO Technologies Incorporated Second Amended and Restated 1994 Stock and Incentive Plan (the “Plan”). The increase in the number of shares authorized for issuance under the Plan as well as certain other amendments to the Plan that are described in the Registrant’s definitive proxy statement, filed with the United States Securities and Exchange Commission (the “Commission”) on June 20, 2008, were approved by the Registrant’s shareholders on July 24, 2008. The Registrant previously filed registration statements on Form S-8 on December 7, 1994 (Reg. No. 33-87178) and August 12, 2004 (Reg. No. 333-118177) covering 1,758,750 split adjusted shares of the Registrant’s Common Stock authorized for issuance under prior versions of the Plan. Pursuant to General Instruction E to Form S-8, the contents of the earlier registration statements are incorporated herein by reference except to the extent supplemented, amended or superseded by the information set forth herein. Only those items of Form S-8 containing new information not contained in the earlier registration statements are presented herein.
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents, filed or to be filed with the Commission, are incorporated herein by reference:
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the Registrant’s Annual Report on Form 10-K for the year ended March 30, 2008, filed with the Commission on June 12, 2008, as amended by Form 10-K/A filed with the Commission on July 25, 2008; |
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the Registrant’s Quarterly Report on Form 10-Q for the quarter ended June 29, 2008, filed with the Commission on August 13, 2008, the Registrant’s Quarterly Report on Form 10-Q for the quarter ended September 28, 2008, filed with the Commission on November 12, 2008 and the Registrant’s Quarterly Report on Form 10-Q for the quarter ended December 28, 2008, filed with the Commission on February 11, 2008; |
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all other reports of the Registrant filed pursuant to Section 13(a) or 15(d) of the Exchange Act since the end of the Registrant’s fiscal year ended March 30, 2008 (except for any reports, or portions of reports, that are not deemed “filed” with the Commission); |
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the description of the Common Stock of the Registrant contained in its Registration Statement on Form S-1, and amendments thereto (File No. 33-82834), which is incorporated by reference into its Registration Statement on Form 8-A (File No. 0-24746) filed by the Registrant pursuant to the Exchange Act; and |
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the description of the Registrant’s Preferred Stock Purchase Rights contained in the Registration Statement on Form 8-A (File No. 1-33938) filed by the Registrant pursuant to the Exchange Act. |
In addition, all reports and other documents subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the filing of a post-effective amendment which indicates that all securities offered hereby have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference herein and to be a part hereof from the date of filing of such document. Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein or in any other subsequently filed document which also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. The statements required to be so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement. The Registrant is not, however, incorporating by reference any documents, or portions of documents, that are not deemed “filed” with the Commission.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, at Hunt Valley, Maryland, on April 24, 2009.
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TESSCO TECHNOLOGIES INCORPORATED |
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By: |
/s/ David M. Young |
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Name: |
David M. Young |
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Title: |
Senior Vice President and Chief Financial Officer |
POWER OF ATTORNEY
KNOW ALL BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Robert B. Barnhill, Jr. and David M. Young, and each of them, as the true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for such person and in such person’s name, place and stead, in any and all capacities, to sign any or all amendments to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
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SIGNATURE |
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TITLE |
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DATE |
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/s/ Robert B. Barnhill, Jr. |
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President, Chief Executive Officer |
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April 24, 2009 |
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Robert B. Barnhill, Jr. |
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and Chairman of the Board |
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(principal executive officer) |
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/s/ David M. Young |
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Senior Vice President and |
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April 24, 2009 |
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David M. Young |
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Chief Financial Officer |
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(principal financial and accounting officer) |
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/s/ John D. Beletic |
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Director |
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April 24, 2009 |
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John D. Beletic |
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/s/ Jay G. Baitler |
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Director |
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April 24, 2009 |
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Jay G. Baitler |
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/s/ Benn R. Konsynski |
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Director |
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April 24, 2009 |
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Benn R. Konsynski |
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/s/ Daniel Okrent |
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Director |
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April 24, 2009 |
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Daniel Okrent |
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/s/ Dennis J. Shaughnessy |
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Director |
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April 24, 2009 |
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Dennis J. Shaughnessy |
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/s/ Morton F. Zifferer, Jr. |
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Director |
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April 24, 2009 |
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Morton F. Zifferer, Jr. |
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EXHIBIT INDEX
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Exhibit
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Description |
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3.1.1 |
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Amended and Restated Certificate of Incorporation of the Registrant filed on September 29, 1993 in the Office of the Secretary of State of the State of Delaware (incorporated by reference to Exhibit 3.1.1 to the Registrant’s Registration Statement on Form S-1 (No. 33-81834)). |
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3.1.2 |
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Certificate of Retirement of the Registrant filed on January 13, 1994 in the Office of the Secretary of State of the State of Delaware (incorporated by reference to Exhibit 3.1.2 to the Registrant’s Registration Statement on Form S-1 (No. 33-81834)). |
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3.1.3 |
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Certificate of Amendment to Certificate of Incorporation of the Registrant filed on July 20, 1994 in the Office of the Secretary of State of the State of Delaware (incorporated by reference to Exhibit 3.1.3 to the Registrant’s Registration Statement of Form S-1 (No. 33-81834)). |
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3.1.4 |
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Certificate of Amendment to Certificate of Incorporation of the Registrant filed on September 6, 1996 in the Office of the Secretary of State of the State of Delaware (incorporated by reference to Exhibit 3.1.4 to the Registrant’s Annual Report on Form 10-K for the fiscal year ended March 28, 1997). |
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3.1.5 |
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Certificate of Correction of Certificate of Amendment of the Registrant filed on February 7, 2007 in the Office of the Secretary of State of the State of Delaware (incorporated by reference to Exhibit 3.1.5 to the Registrant’s Quarterly Report on Form 10-Q for the quarterly period ended December 24, 2006). |
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3.1.6 |
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Certificate of Designation of Series A Junior Participating Preferred Stock of the Registrant filed on February 1, 2008 in the Office of the Secretary of State of the State of Delaware (incorporated by reference to Exhibit 2 to the Registrant’s Registration Statement on Form 8-A, filed with the Commission on February 1, 2008). |
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3.2 |
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Third Amended and Restated By-laws of the Registrant (incorporated by reference to Exhibit 3.2 to the Registrant’s Current Report on Form 8-K, filed with the Commission on February 1, 2008). |
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4.1 |
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Rights Agreement, dated as of February 1, 2008, between the Registrant and Mellon Investor Services, LLC, as rights agent (which includes the Form of Rights Certificate as Exhibit B) (incorporated by reference to the Registrant’s Registration Statement on Form 8-A, filed with the Commission on February 1, 2008). |
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4.2 |
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TESSCO Technologies Incorporated Second Amended and Restated 1994 Stock and Incentive Plan (incorporated by reference to Exhibit 10.1 to the Registrant’s Current Report on Form 8-K, filed with the Commission on July 29, 2008). |
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5.1 |
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Opinion of Ballard Spahr Andrews & Ingersoll, LLP (filed herewith). |
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23.1 |
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Consent of Ernst & Young LLP, Independent Registered Public Accounting Firm (filed herewith). |
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23.2 |
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Consent of Ballard Spahr Andrews & Ingersoll, LLP (contained in Exhibit 5.1). |
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24.1 |
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Power of Attorney (see signatures page to this Registration Statement). |
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Exhibit 5.1
[LETTERHEAD OF BALLARD SPAHR ANDREWS & INGERSOLL, LLP]
April 24, 2009
TESSCO Technologies Incorporated
11126 McCormick Road
Hunt Valley, Maryland 21031
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Re: |
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TESSCO Technologies Incorporated, a Delaware corporation (the “Corporation”): Registration Statement on Form S-8 to be filed on or about the date hereof relating to 150,000 additional shares (the “Shares”) of common stock, par value $0.01 per share (“Common Stock”), of the Corporation subject to sale under the TESSCO Technologies Incorporated Second Amended and Restated 1994 Stock and Incentive Plan (the “Plan”) |
Ladies and Gentlemen:
In connection with the registration by the Corporation of the Shares under a Registration Statement on Form S-8 (the “Registration Statement”), filed on or about the date hereof with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “1933 Act”), you have requested our opinion as to the matters set forth below.
We have acted as counsel to the Corporation in connection with the matters described herein. In our capacity as counsel to the Corporation, we have reviewed and relied upon one or more certificates from the officers of the Corporation and on various certificates from, and documents filed in, the Office of the Secretary of State of the State of Delaware (the “Secretary”), including the certificate of incorporation of the Corporation, consisting of the Amended and Restated Certificate of Incorporation filed with the Secretary on September 29, 1993, the Certificate of Retirement filed with the Secretary on January 13, 1994, the Certificate of Amendment filed with the Secretary on July 20, 1994, the Certificate of Amendment filed with the Secretary on September 6, 1996, the Certificate of Correction of Certificate of Amendment filed with the Secretary on February 7, 2007 and the Certificate of Designation filed with the Secretary on February 1, 2008. We have also reviewed and are familiar with (a) the bylaws of the Corporation, (b) certain resolutions adopted or actions taken by the Board of Directors and stockholders of the Corporation and in full force and effect on the date hereof relating to the authorization and approval of the Plan and the authorization of the issuance and registration of the Shares (the “Resolutions”), (c) the Plan, (d) the Registration Statement and (e) such laws, records, documents, certificates, opinions and instruments as we deem necessary to render this opinion.
In rendering the opinion set forth below, we have assumed the genuineness of all signatures and the authenticity of all documents submitted to us as originals and the conformity to the originals of all documents submitted to us as certified, photostatic or conformed copies. In addition, we have assumed that each person executing any instrument, document or certificate referred to herein on behalf of any party is duly authorized to do so. We have further assumed that (a) the number of Shares issued by the Corporation from the authorized but unissued shares of Common Stock of the Corporation pursuant to the Plan (the “New Shares”) will not exceed 150,000 and (b) the sum of (i) the number of New Shares and (ii) the number of Shares that are treasury shares of the Corporation delivered pursuant to the Plan, will not exceed, in the aggregate, 150,000, in the event that the Corporation delivers treasury shares as permitted in the Plan.
Based upon the foregoing and subject to the assumptions, limitations and qualifications set forth herein, it is our opinion that, as of the date of this letter:
The New Shares have been duly authorized for issuance and, when issued and delivered upon receipt of the consideration therefor as contemplated by the Plan and otherwise in accordance with the Resolutions, will be legally issued, fully paid and nonassessable.
The foregoing opinion is limited to the substantive laws of the State of Delaware and we do not express any opinion herein concerning any other law. We express no opinion as to the applicability or effect of any federal or state securities laws, including the securities laws of the State of Delaware. To the extent that any matter as to which our opinion is expressed herein would be governed by the laws of any jurisdiction other than the State of Delaware, we do not express any opinion on such matter.
We assume no obligation to supplement this opinion if any applicable law changes after the date hereof or if we become aware of any fact that might change the opinion expressed herein after the date hereof.
This opinion is being furnished to you solely for submission to the Commission as an exhibit to the Registration Statement. We consent to the filing of this opinion as an exhibit to the Registration Statement and to the use of the name of our firm in the section entitled “Legal Matters” in the Registration Statement. In giving this consent, we do not admit that we are within the category of persons whose consent is required by Section 7 of the 1933 Act.
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Very truly yours, |
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/s/ BALLARD SPAHR ANDREWS & INGERSOLL, LLP |
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Exhibit 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the incorporation by reference in the Registration Statement (Form S-8) pertaining to the TESSCO Technologies Incorporated Second Amended and Restated 1994 Stock and Incentive Plan, of our report dated June 9, 2008, with respect to the consolidated financial statements and schedule of TESSCO Technologies Incorporated included in its Annual Report (Form 10-K) for the year ended March 30, 2008, filed with the Securities and Exchange Commission.
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/s/ ERNST & YOUNG LLP |
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Ernst & Young LLP |
Baltimore, Maryland
April 24, 2009