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As filed with the Securities and Exchange Commission on October 16, 2000
Registration No. 333-________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
TELECOMMUNICATION SYSTEMS, INC.
(Exact name of registrant as specified in its charter)
MARYLAND 52-1526369
(State or other jurisdiction of (I.R.S. Employer Identification No.)
Incorporation or organization)
275 WEST STREET
ANNAPOLIS, MARYLAND 21401
(Address of principal executive offices) (Zip Code)
TELECOMMUNICATION SYSTEMS, INC. AMENDED AND RESTATED
1997 STOCK INCENTIVE PLAN
AND
TELECOMMUNICATION SYSTEMS, INC. EMPLOYEE STOCK PURCHASE PLAN
(Full title of plans)
(Name, address and telephone
number of agent for service) (Copy to:)
MAURICE B. TOSE WILBERT H. SIROTA, ESQ.
PRESIDENT AND CHIEF EXECUTIVE OFFICER WM. DAVID CHALK, ESQ.
TELECOMMUNICATION SYSTEMS, INC. PIPER MARBURY RUDNICK & WOLFE LLP
275 WEST STREET 6225 SMITH AVENUE
ANNAPOLIS, MARYLAND 21401 BALTIMORE, MARYLAND 21209-3600
(410) 263-7616 (410) 580-3000
CALCULATION OF REGISTRATION FEE
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PROPOSED PROPOSED
AMOUNT MAXIMUM MAXIMUM AMOUNT OF
TO BE OFFERING AGGREGATE REGISTRATION
TITLE OF SECURITIES TO BE REGISTERED REGISTERED PRICE PER OFFERING PRICE FEE
SHARE
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Amended and Restated 1997 Stock Incentive Plan
Class A Common Stock, par value 3,170,053(1)(2) $2.92(3) $9,256,554.76 $2,443.73
$0.01 per share 2,420,951(1)(2) $13.35(4) $32,319,695.85 $8,532.40
Employee Stock Purchase Plan
Class A Common Stock, par value 684,932(1) $13.35(5) $9,143,842.20 $2,413.97
$0.01 per share
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TOTAL 6,275,936(1) $50,720,092.81 $13,390.10
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(1) In addition, pursuant to Rule 416(c) under the Securities Act of 1933, as
amended, this Registration Statement also covers (i) an indeterminate number of
shares of Class A Common Stock that may be offered or issued by reason of stock
splits, stock dividends or similar transactions and (ii) an indeterminate
number of plan participation interests to be offered or issued pursuant to the
Employee Stock Purchase Plan.
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(2) This Registration Statement registers 3,170,053 shares of Class A Common
Stock under the Amended and Restated 1997 Stock Incentive Plan, which are
subject to outstanding but unexercised options outstanding as of the filing
date hereof, and 2,420,951 shares of Class A Common Stock available for future
issuance pursuant to future awards under the Amended and Restated 1997 Stock
Incentive Plan.
(3) Estimated solely for purposes of calculating the registration fee pursuant
to Rule 457(h). The proposed maximum offering price per share is based on the
weighted average per share exercise price (rounded to the nearest cent) of
outstanding but unexercised options previously issued under the Amended and
Restated 1997 Stock Incentive Plan.
(4) Estimated solely for purposes of calculating the registration fee pursuant
to Rule 457(h). The proposed maximum offering price per share with respect to
shares not subject to any outstanding awards under the Amended and Restated
1997 Stock Incentive Plan as of the filing date hereof is based on the average
of the high and low prices of TeleCommunication Systems, Inc. Class A Common
Stock reported on the Nasdaq National Market on October 12, 2000 (i.e., $13.35
per share).
(5) Estimated solely for purposes of calculating the registration fee pursuant
to Rule 457(h). The proposed maximum offering price per share for shares to be
offered under the Employee Stock Purchase Plan is based on the average of the
high and low prices of TeleCommunication Systems, Inc. Class A Common Stock
reported on the Nasdaq National Market on October 12, 2000 (i.e., $13.35).
Pursuant to Rule 457(h)(2), no separate registration fee is provided for the
participation interests in the Employee Stock Purchase Plan.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Not required to be included in this Form S-8 Registration Statement pursuant to
the introductory Note to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents which have been filed by the Registrant with
the Securities and Exchange Commission (the "Commission") are incorporated
herein by reference:
(a) Prospectus filed on August 8, 2000 pursuant to Rule 424(b)
under the Securities Act of 1933, as amended (the "Securities
Act"), (in connection with the Registrant's Registration
Statement on Form S-1, as amended (File No. 333-35522));
(b) All other reports filed pursuant to Sections 13(a) or 15(d)
of the Securities Exchange Act of 1934, as amended ("Exchange
Act"), since the end of the fiscal year covered by the
document referred to in (a) above; and
(c) Description of Class A Common Stock of the Registrant
contained or incorporated in the registration statements
filed by the Registrant under the Exchange Act, including any
amendments or reports filed for the purpose of updating such
description.
All documents subsequently filed by the Registrant with the Commission
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 (i) indicates that all
securities offered under this Registration Statement have been sold or (ii)
which deregisters all securities remaining unsold, shall be deemed to be
incorporated by reference into this Registration Statement and to be a part of
this Registration Statement from the date of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
None.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
As permitted by the Maryland General Corporation Law ("MGCL"), Article
Seventh, Paragraph (5) of the Registrant's Amended and Restated Articles of
Incorporation ("Registrant's Charter") provides for indemnification of
directors and officers of the Registrant, as follows:
The Corporation shall indemnify (A) its directors and officers,
whether serving the Corporation or at its request any other entity, to
the fullest extent required or permitted by the General Laws of the
State of Maryland now or hereafter in force, including the advance of
expenses under the
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procedures and to the full extent permitted by law and (B) other
employees and agents to such extent as shall be authorized by the
Board of Directors or the Corporation's By-Laws and be permitted by
law. The foregoing rights of indemnification shall not be exclusive of
any other rights to which those seeking indemnification may be
entitled. The Board of Directors may take such action as is necessary
to carry out these indemnification provisions and is expressly
empowered to adopt, approve and amend from time to time such by-laws,
resolutions or contracts implementing such provisions or such further
indemnification arrangements as may be permitted by law. No amendment
of the Charter of the Corporation or repeal of any of its provisions
shall limit or eliminate the right to indemnification provided
hereunder with respect to acts or omissions occurring prior to such
amendment or repeal.
Also, the Registrant's By-Laws contain indemnification procedures that
implement the indemnification provisions of the Registrant's Charter. The MGCL
permits a corporation to indemnify its directors and officers, among others,
against judgments, penalties, fines, settlements and reasonable expenses
actually incurred by them in connection with any proceedings to which they may
be a party by reason of their service in those or other capacities, unless it
is established that (a) the act or omission of the director or officer was
material to the matter giving rise to such proceedings and (i) was committed in
bad faith or (ii) was the result of active and deliberate dishonesty, (b) the
director or officer actually received an improper personal benefit in money,
property or services, or (c) in the case of any criminal proceedings, the
director or officer had reasonable cause to believe that the action or omission
was unlawful.
The MGCL permits the charter of a Maryland corporation to include a
provision limiting the liability of its directors and officers to the
corporation and its stockholders for money damages, except to the extent that
(i) the person actually received an improper benefit or profit in money,
property or services or (ii) a judgment or other final adjudication is entered
in a proceeding based on a finding that the person's action, or failure to act,
was the result of active and deliberate dishonesty and was material to the
cause of action adjudicated in the proceeding.
As permitted by the MGCL, Article Seventh, Paragraph (6) of the
Registrant's Charter provides for limitation of liability of directors and
officers of the Registrant, as follows:
To the fullest extent permitted by Maryland statutory or decisional
law, as amended or interpreted, no director or officer of this
Corporation shall be personally liable to the Corporation or its
stockholders for money damages. No amendment of the Charter of the
Corporation or repeal of any of its provisions shall limit or
eliminate the limitation on liability provided to directors and
officers hereunder with respect to any act or omission occurring prior
to such amendment or repeal.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
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ITEM 8. EXHIBITS.
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EXHIBIT
NUMBER DESCRIPTION
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4.1 Amended and Restated Articles of Incorporation (incorporated by reference to
Exhibit No. 3.1 to the Registration Statement on Form S-1, as amended (File
No. 333-35522)).
4.2 Amended and Restated By-Laws (incorporated by reference to Exhibit No. 3.2
to the Registration Statement on Form S-1, as amended (No. 333-35522)).
4.3 TeleCommunication Systems, Inc. Amended and Restated 1997 Stock Incentive
Plan (filed herewith).
4.4 TeleCommunication Systems, Inc. Employee Stock Purchase Plan (filed
herewith).
5.1 Opinion of Piper Marbury Rudnick & Wolfe LLP (filed herewith).
23.1 Consent of Counsel (contained in Exhibit 5.1).
23.2 Consent of Independent Auditors (filed herewith).
24.1 Power of Attorney (filed herewith).
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ITEM 9. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in this Registration Statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the Registration
Statement or any material change to such information in the
Registration Statement.
Paragraphs (l)(i) and (l)(ii) above do not apply if the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed by the Registrant pursuant to Section 13 or
Section 15(d) of the Exchange Act that are incorporated by reference in this
Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
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(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or 15(d) of the Exchange
Act (and, where applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Exchange Act) that is incorporated by
reference in the Registration Statement shall be deemed to be a new
Registration Statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is asserted by
such director, officer or controlling person in connection with the securities
being registered, the Registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act and will be governed
by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, 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, in the City of Annapolis, State of
Maryland, on the 16th day of October, 2000.
TELECOMMUNICATION SYSTEMS, INC.
By: /s/ Maurice B. Tose
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Maurice B. Tose
Chief Executive Officer, President
and Chairman of the Board
Pursuant to the requirements of the Securities Act of 1933, as
amended, the administrator of the Employee Stock Purchase Plan has duly caused
this Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Annapolis, State of Maryland, on the
16th day of October, 2000.
TELECOMMUNICATION SYSTEMS, INC.
EMPLOYEE STOCK PURCHASE PLAN
By: /s/ Clyde A. Heintzelman
------------------------------------------------
Clyde A. Heintzelman
Member of the Compensation Committee
Pursuant to the requirements of the Securities Act of 1933, as
amended, this Registration Statement on Form S-8 has been signed by the
following persons in the capacities and on the dates indicated.
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Signature Title Date
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/s/ Maurice B. Tose Chief Executive Officer, President and Chairman October 16, 2000
--------------------------------- of the Board
Maurice B. Tose (Principal Executive Officer)
/s/ Thomas M. Brandt, Jr. Chief Financial Officer October 16, 2000
--------------------------------- and Senior Vice President
Thomas M. Brandt, Jr. (Principal Financial and Accounting Officer)
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A majority of the Board of Directors (Maurice B. Tose, Clyde A.
Heintzelman, Andrew C. Barrett, Richard A. Kozak, Byron F. Marchant, and
Timothy P. Bradley).
Date: October 16, 2000 By: /s/ Thomas M. Brandt, Jr.
-------------------------
Thomas M. Brandt, Jr., Attorney-In-Fact
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EXHIBIT INDEX
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EXHIBIT
NUMBER DESCRIPTION
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4.1 Amended and Restated Articles of Incorporation (incorporated by reference to
Exhibit No. 3.1 to the Registration Statement on Form S-1, as amended (File
No. 333-35522)).
4.2 Amended and Restated By-Laws (incorporated by reference to Exhibit No. 3.2
to the Registration Statement on Form S-1, as amended (File No. 333-35522)).
4.3 TeleCommunication Systems, Inc. Amended and Restated 1997 Stock Incentive
Plan (filed herewith).
4.4 TeleCommunication Systems, Inc. Employee Stock Purchase Plan (filed
herewith).
5.1 Opinion of Piper Marbury Rudnick & Wolfe LLP (filed herewith).
23.1 Consent of Counsel (contained in Exhibit 5.1).
23.2 Consent of Independent Auditors (filed herewith).
24.1 Power of Attorney (filed herewith).
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