As filed with the Securities and Exchange Commission on December 8, 1998
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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TII INDUSTRIES, INC.
(Exact name of registrant as specified in its charter)
Delaware 66-0328885
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1385 Akron Street, Copiague, New York 11726
(Address of Principal Executive Offices) (Zip Code)
1998 STOCK OPTION PLAN
(Full title of the plan)
Timothy J. Roach, President
TII Industries, Inc.
1385 Akron Street
Copiague, New York 11726
(Name and address of agent for service)
(516) 789-5000
(Telephone number, including area code, of agent for service)
with a copy to:
Leonard W. Suroff, Esq.
1385 Akron Street
Copiague, New York 11726
Approximate date of commencement of proposed sale to public: As soon as
practicable after the effective date of this Registration Statement.
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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Proposed Proposed
Title of maximum maximum
each class Amount offering aggregate Amount of
of securities to be price per offering registration
to be registered registered(1) share (2) price (2) fee (2)
<S> <C> <C> <C> <C>
Common Stock, $.01 par value,
and associated Series D Junior
Participating Preferred Stock,
$1.00 par value, Purchase Rights(3) 1,500,000 shs $2.0625 $3,093.750 $860.07
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</TABLE>
(1) Pursuant to Rule 416(b), there shall also be deemed covered hereby all
additional securities resulting from anti-dilution adjustments under the
1998 Stock Option Plan.
(2) Estimated solely for the purpose of calculating the registration fee on
the basis of, pursuant to Rules 457(h) and 457(c), the average of the high
and low sales prices of the registrant's Common Stock on The Nasdaq Stock
Market's National Market System on December 4, 1998.
(3) Common Stock includes associated rights to purchase shares of the
registrant's Series D Junior Participating Preferred Stock. Until the
occurrence of certain prescribed events, none of which has occurred, the
rights are not detachable from the Common Stock nor exercisable and will
be transferred along with and only with the Common Stock. Accordingly, no
separate registration fee is payable with respect thereto.
<PAGE>
PART II.
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents heretofore filed by the Company with
the Securities and Exchange Commission (File No. 1-8048) pursuant to Section
13(a) of the Securities Exchange Act of 1934 (the "1934 Act") are incorporated
herein by reference:
(a) The registrant's Annual Report on Form 10-K for the fiscal
year ended June 26, 1998, as amended by Amendment No. 1 thereto filed on October
26, 1998;
(b) The registrant's Quarterly Report on Form 10-Q for the
fiscal quarter ended September 25, 1998;
(c) The description of the registrant's Common Stock contained
in the registrant's Registration Statement on Form 8-A filed on November 3, 1980
under the 1934 Act and the description of the Company's Series D Junior
Participating Preferred Stock Purchase Rights contained in the Company's
Registration Statement on Form 8-A as filed May 15, 1998 under the 1934 Act,
including any amendment or report filed for the purpose of updating such
descriptions.
All documents filed subsequent to the date of this
Registration Statement pursuant to Section 13(a), 13(c), 14 or 15(d) of the 1934
Act and prior to the filing of a post-effective amendment which indicates that
all securities offered have been sold or which deregisters all securities then
remaining unsold, shall be deemed to be incorporated by reference in this
Registration Statement and to be a part hereof from the date of the filing of
such documents. Any statement contained in a document incorporated or deemed to
be incorporated herein by reference 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.
Item 4. Description of Securities.
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
Not Applicable.
II-1
<PAGE>
Item 6. Indemnification of Directors and Officers.
Section 145 of the General Corporation Law of the State of Delaware
(the "DGCL") provides, in general, that a corporation incorporated under the
laws of the State of Delaware, such as the registrant, may indemnify any person
who was or is a party, or is threatened to be made a party, to any threatened,
pending or completed action, suit or proceeding , whether civil, criminal,
administrative or investigative (other than a derivative action by or in the
right of the corporation) by reason of the fact that such person is or was a
director, officer, employee or agent of the corporation, or is or was serving at
the request of the corporation as a director, officer, employee or agent of
another enterprise, against expenses (including attorneys' fees), judgments,
fines and amounts paid in settlement actually and reasonably incurred by such
person in connection with such action, suit or proceeding if such person acted
in good faith and in a manner such person reasonably believed to be in or not
opposed to the best interests of the corporation, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe such person's
conduct was unlawful. In the case of a derivative action, a Delaware corporation
may indemnify any such person against expenses (including attorneys' fees)
actually and reasonably incurred by such person in connection with the defense
or settlement of such action or suit if such person acted in good faith and in a
manner such person reasonably believed to be in or not opposed to the best
interests of the corporation, except that no indemnification shall be made in
respect of any claim, issue or matter as to which such person shall have been
adjudged to be liable to the corporation unless and only to the extent that the
court determines such person is fairly and reasonably entitled to indemnity for
such expenses. Article XII of the registrant's By-laws provides that the
registrant shall so indemnify such persons. In addition, Article 12 of the
registrant's Restated Certificate of Incorporation, as amended, provides, in
general, that no director of the registrant shall be personally liable to the
registrant or any of its stockholders for monetary damages for breach of
fiduciary duty as a director, except for liability (i) for any breach of the
director's duty of loyalty to the corporation or its stockholders; (ii) for acts
or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law; (iii) under Section 174 of the DGCL (which provides
that, under certain circumstances, directors may be jointly and severally liable
for willful or negligent violations of the DGCL provisions regarding the payment
of dividends or stock repurchases or redemptions), as the same exists or
hereafter may be amended; or (iv) for any transaction from which the director
derived an improper personal benefit.
Item 7. Exemption from Registration Claimed.
Not Applicable.
II-2
<PAGE>
Item 8. Exhibits.
Exhibit
Number Description
- ------- -----------
4 (a)(1) Restated Certificate of Incorporation of the Company, as filed with the
Secretary of State of the State of Delaware on December 10, 1996.
Incorporated by reference to Exhibit 3 to the Company's Quarterly
Report on Form 10-Q for the fiscal quarter ended December 27, 1996
(File No. 1-8048).
4(a)(2) Certificate of Designation, as filed with the Secretary of State of the
State of Delaware on January 26, 1998. Incorporated by reference to
Exhibit 4.3 to the Company's Current Report on Form 8-K dated (date of
earliest event reported) January 26, 1998 (File No. 1-8048).
4(a)(3) Certificate of Designation, as filed with the Secretary of State of the
State of Delaware on May 15, 1998. Incorporated by reference to Exhibit
4.1 to the Company's Current Report on Form 8-K dated (date of earliest
event reported) May 7, 1998 (File No. 1-8048).
4(b) By-laws of the Company, as amended. Incorporated by reference to
Exhibit 4.02 to Amendment No. 1 to the Company's Registration Statement
on Form S-3 (File No. 33- 64980).
4(c) Rights Agreement, dated as of May 15, 1998, between the Company and
Harris Trust of Chicago. Incorporated by reference to Exhibit 4.1 to
the Company's Current Report on Form 8-K dated (date of earliest event
reported) May 7, 1998 (File No. 1-8048).
5* Opinion of Parker, Chapin, Flattau & Klimpl, LLP as to the legality of
the Common Stock being offered and consent.
23(a)* Consent of Arthur Andersen LLP.
23(b)* Consent of Parker Chapin Flattau & Klimpl, LLP (to be included in
Exhibit 5).
24+ Powers of Attorney of certain officers and directors of the registrant.
99 Registrant's 1988 Stock Option Plan, as amended. Incorporated by
reference to Exhibit A to the Company's Proxy Statement dated November
6, 1998 (File No. 1-8048).
- --------------
* Filed herewith.
+ Filed as part of the signature page of the original filing of this
Registration Statement.
II-3
<PAGE>
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 of 1933;
(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 the
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;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
registration statement is on Form S-3, Form S-8, and 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 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in the
registration statement.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, 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.
(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 of 1933, each
filing of the registrant's annual report pursuant to Section 13(a) or Section
15(d) of the Securities Exchange Act of 1934 that is incorporated by reference
in this registration statement shall be deemed to be a new registration
statement relating to the securities offered herein, 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 of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the provisions described under Item 6
above, or otherwise, the registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public policy
as expressed in the 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 Act and
will be governed by the final adjudication of such issue.
II-4
<PAGE>
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, in the Town of Copiague, State of New York, on the 8th day of
December, 1998.
TII INDUSTRIES, INC.
By: /s/ Timothy J. Roach
-------------------------------
Timothy J. Roach, President
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints each of Timothy J. Roach, Paul G. Sebetic
and Leonard W. Suroff and each of them with power of substitution, as his
attorney-in-fact, in all capacities, to sign any amendments to this registration
statement (including post-effective amendments) and to file the same, with
exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission, hereby ratifying and confirming all that
said attorney-in-facts or their substitutes may 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 below by the following persons in the
capacities indicated on the 8th day of December, 1998.
Signature Title
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- ----------------------------------
Alfred J. Roach Chairman of the Board
/s/ Timothy J. Roach
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Timothy J. Roach President (Chief Executive Officer)
and Director
/s/ Paul G. Sebetic
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Paul G. Sebetic Vice President - Finance (Chief
Financial and Accounting Officer)
/s/ C. Bruce Barksdale
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C. Bruce Barksdale Director
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George S. Katsarakes Director
/s/ James R. Grover, Jr.
- ----------------------------------
James R. Grover, Jr. Director
/s/ Joseph C. Hogan
- ----------------------------------
Joseph C. Hogan Director
- ----------------------------------
Dorothy Roach Director
/s/ William G. Sharwell
- ----------------------------------
William G. Sharwell Director
II-5
<PAGE>
EXHIBIT INDEX
Exhibit
Number Description
- -------- -----------
4 (a)(1) Restated Certificate of Incorporation of the Company, as filed
with the Secretary of State of the State of Delaware on
December 10, 1996. Incorporated by reference to Exhibit 3 to
the Company's Quarterly Report on Form 10-Q for the fiscal
quarter ended December 27, 1996 (File No. 1-8048).
4(a)(2) Certificate of Designation, as filed with the Secretary of
State of the State of Delaware on January 26, 1998.
Incorporated by reference to Exhibit 4.3 to the Company's
Current Report on Form 8-K dated (date of earliest event
reported) January 26, 1998 (File No. 1-8048).
4(a)(3) Certificate of Designation, as filed with the Secretary of
State of the State of Delaware on May 15, 1998. Incorporated
by reference to Exhibit 4.1 to the Company's Current Report on
Form 8-K dated (date of earliest event reported) May 7, 1998
(File No. 1-8048).
4(b) By-laws of the Company, as amended. Incorporated by reference
to Exhibit 4.02 to Amendment No. 1 to the Company's
Registration Statement on Form S-3 (File No. 33- 64980).
4(c) Rights Agreement, dated as of May 15, 1998, between the
Company and Harris Trust of Chicago. Incorporated by reference
to Exhibit 4.1 to the Company's Current Report on Form 8-K
dated (date of earliest event reported) May 7, 1998 (File No.
1-8048).
5* Opinion of Parker, Chapin, Flattau & Klimpl, LLP as to the
legality of the Common Stock being offered and consent.
23(a)* Consent of Arthur Andersen LLP.
23(b)* Consent of Parker Chapin Flattau & Klimpl, LLP (to be included
in Exhibit 5).
24+ Powers of Attorney of certain officers and directors of the
registrant.
99 Registrant's 1988 Stock Option Plan, as amended. Incorporated
by reference to Exhibit A to the Company's Proxy Statement
dated November 6, 1998 (File No. 1-8048).
- --------------
* Filed herewith.
+ Filed as part of the signature page of the original filing of this
Registration Statement.
Exhibit 5
---------
[PARKER CHAPIN FLATTAU & KLIMPL, LLP LETTERHEAD]
December 8, 1998
TII Industries, Inc.
1385 Akron Street
Copiague, New York 11726
Re: TII Industries, Inc.
-------------------
Dear Sir or Madam:
We have acted as counsel to TII Industries, Inc. (the
"Company") in connection with its Registration Statement on Form S-8 (the
"Registration Statement") to be filed with the Securities and Exchange
Commission relating to the offering of up to 1,500,000 shares of common stock,
par value $.01 per share, (the "Common Stock"), to employees and directors of,
and consultants to, the Company or any parent or subsidiary of the Company upon
the exercise of options which have been, or may from time to time be, granted by
the Company under the Company's 1998 Stock Option Plan (the "Plan"), and such
additional indeterminate number of shares of Common Stock as may be issued under
the anti-dilution provisions of the Plan.
In rendering the opinions expressed below, we have examined
the Certificate of Incorporation of the Company, as amended, the By-laws of the
Company, as amended, and minutes of the corporate proceedings of the Company
relating to the Plan. In addition, we have examined and relied upon such other
matters of law, certificates and examinations of public officials as we have
deemed relevant to the rendering of this opinion. We have not examined each
option contract in respect of options granted under the Plan. We have, however,
examined the form of option contract which the Company has advised us is the
form of option contract used by it under the Plan. We have also been informed by
the Company that each option contract between the Company and option holders
under the Plan is substantially in the form of the option contract we have
examined. In all of our examinations, we have assumed the accuracy of all
information furnished to us, the genuineness of all documents, the conformity to
originals of all documents submitted to us as certified, conformed, facsimile or
photostatic copies thereof, as well as the genuineness of all signatures on all
such documents.
Where reference is made in this opinion to matters within our
knowledge, or to facts and circumstances known to us, such reference means the
actual knowledge of those attorneys within the firm who have given substantive
attention to the foregoing agreements and instruments, without, however,
independent investigation of any matter except as otherwise expressly noted
therein.
<PAGE>
Our opinion is limited to the date hereof and we do not in any
event undertake to advise you of any facts or circumstances occurring or coming
to our attention subsequent to the date hereof.
Finally, we are counsel admitted to practice only in the State
of New York, and we express no opinions as to the applicable laws of any
jurisdiction other than those of the State of New York and the United States of
America.
Based upon and subject to the foregoing, we are of the opinion
that the shares of the Company's Common Stock to be issued pursuant to the
exercise of options granted or to be granted under the Plan will be, when issued
pursuant to the provisions of the Plan, legally issued, fully paid and
non-assessable.
We consent to the filing of a copy of this opinion as an
exhibit to the Company's Registration Statement with respect to the Plan.
Very truly yours,
/s/ PARKER CHAPIN FLATTAU & KLIMPL, LLP
PARKER CHAPIN FLATTAU & KLIMPL, LLP
Exhibit 23(a)
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CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our report dated September 25, 1998,
included in TII Industries, Inc.'s Form 10-K for the year ended June 26, 1998,
and to all references to our firm included in this registration statement.
/s/ Arthur Andersen LLP
San Juan, Puerto Rico,
December 9, 1998.
