UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 8)*
TECHNICAL COMMUNICATIONS CORPORATION
(Name of Issuer)
Common Stock, $0.10 par value per share
(Title of Class of Securities)
878 409 101
(CUSIP Number)
M. Mahmud Awan, Ph. D. Paul Bork, Esq.
TechMan International Corporation Hinckley, Allen & Snyder
240 Sturbridge Road 28 State Street
Charlton City, Massachusetts 01506 Boston, Massachusetts 02109
(508) 248-3211 (617) 345-9000
(Name, Address and Telephone Number of Person Authorized to Receive
Notices and Communications)
July 8, 1998
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D and is filing this
schedule because of Rule 13d-1(b)(3) or (4), check the following box [ ].
NOTE: Schedules filed in paper format shall include a signed original and five
copies of the schedule, including all exhibits. See Rule 13d-7(b) for other
parties to whom copies are to be sent.
* The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior coverage page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
<PAGE>
1. Name of Reporting Person: M. Mahmud Awan
SS or IRS Identification Number of the Above Person:
2. Check the Appropriate Box if a Member of a Group: (a) [X]
(b) [ ]
3. SEC Use Only
4. Source of Funds: PF
5. Check Box if Disclosure of Legal Proceedings is Required Pursuant to Items
2(d) or 2(e): [ ]
6. Citizenship or Place of Organization: USA
7. Sole Voting Power: 138,378 shares
8. Shared Voting Power: 0 shares
9. Sole Dispositive Power: 138,378 shares
10. Shared Dispositive Power: 0 shares
11. Aggregate Amount Beneficially Owned by Each Reporting Person: 138,378
shares
12. Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares: [ ]
13. Percent of Class Represented by Amount in Row (11): 10.8%
14. Type of Reporting Person: IN
<PAGE>
1. Name of Reporting Person: Philip A. Phalon
SS or IRS Identification Number of the Above Person:
2. Check the Appropriate Box if a Member of a Group: (a) [X]
(b) [ ]
3. SEC Use Only
4. Source of Funds: PF
5. Check Box if Disclosure of Legal Proceedings is Required Pursuant to Items
2(d) or 2(e): [ ]
6. Citizenship or Place of Organization: USA
7. Sole Voting Power: 2,250 shares
8. Shared Voting Power: 0 shares
9. Sole Dispositive Power: 2,250 shares
10. Shared Dispositive Power: 0 shares
11. Aggregate Amount Beneficially Owned by Each Reporting Person: 2,250 shares
12. Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares: [ ]
13. Percent of Class Represented by Amount in Row (11): 0.2%
14. Type of Reporting Person: IN
<PAGE>
1. Name of Reporting Person: Robert B. Bregman
SS or IRS Identification Number of the Above Person:
2. Check the Appropriate Box if a Member of a Group: (a) [X]
(b) [ ]
3. SEC Use Only
4. Source of Funds: PF
5. Check Box if Disclosure of Legal Proceedings is Required Pursuant to Items
2(d) or 2(e): [ ]
6. Citizenship or Place of Organization: USA
7. Sole Voting Power: 2,700 shares
8. Shared Voting Power: 0 shares
9. Sole Dispositive Power: 2,700 shares
10. Shared Dispositive Power: 0 shares
11. Aggregate Amount Beneficially Owned by Each Reporting Person: 2,700 shares
12. Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares: [ ]
13. Percent of Class Represented by Amount in Row (11): 0.2%
14. Type of Reporting Person: IN
<PAGE>
1. Name of Reporting Person: William C. Martindale, Jr.
SS or IRS Identification Number of the Above Person:
2. Check the Appropriate Box if a Member of a Group: (a) [X]
(b) [ ]
3. SEC Use Only
4. Source of Funds: PF
5. Check Box if Disclosure of Legal Proceedings is Required Pursuant to Items
2(d) or 2(e): [ ]
6. Citizenship or Place of Organization: USA
7. Sole Voting Power: 10,000 shares
8. Shared Voting Power: 67,000 shares
9. Sole Dispositive Power: 10,000 shares
10. Shared Dispositive Power: 67,000 shares
11. Aggregate Amount Beneficially Owned by Each Reporting Person: 77,000 shares
12. Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares: [X]
13. Percent of Class Represented by Amount in Row (11): 6.0%
14. Type of Reporting Person: IN
<PAGE>
Item 1. Security and Issuer
The Statement of M. Mahmud Awan, Philip A. Phalon, Robert B. Bregman and
William C. Martindale, Jr. (the "Purchasing Group") on Schedule 13D dated April
3, 1998, as amended and supplemented by Amendment No. 1 dated May 15, 1998,
Amendment No. 2 dated May 22, 1998, Amendment No. 3 dated June 9, 1998,
Amendment No. 4 dated June 15, 1998, Amendment No. 5 dated June 19, 1998,
Amendment No. 6 dated July 6, 1998, and Amendment No. 7 dated July 7, 1998, in
respect of the common stock, $0.10 par value ("Common Stock"), of Technical
Communications Corporation (the "Issuer") whose principal executive offices are
located at 100 Domino Drive, Concord, Massachusetts 01742, is hereby amended and
supplemented as follows:
Item 4. Purpose of Transaction
Item 4(d) is hereby amended and supplemented by the addition of the following
paragraph:
"On July 2, 1998, the Board of Directors of the Issuer purported to convene
a special meeting at which a resolution was adopted (over Mr. Phalon's
objection) to postpone the July 17, 1998 Annual Meeting to a date thirty days
after such time as the Issuer may obtain approval from the SEC of its proxy
materials. On July 8, 1998, Mr. Phalon and Dr. Awan filed in Middlesex Superior
Court a Motion for Preliminary Injunction seeking to enjoin the Issuer from
changing the Record Date (May 29, 1998) for stockholders entitled to notice of
and to vote at the Annual Meeting or the date for the Annual Meeting (July 17,
1998). A copy of the Motion for Preliminary Injunction is attached hereto as
Exhibit 7 and incorporated herein by reference. The Motion for Preliminary
Injunction is scheduled to be heard on July 10, 1998, together with the
Complaint for Civil Contempt previously filed by Mr. Phalon and Dr. Awan with
respect to actions taken by the Issuer allegedly in violation of the Court's
June 9, 1998 Order."
Item 7. Materials to be Filed as Exhibits
Item 7 is hereby amended and supplemented as follows:
"Schedule of Exhibits
Exhibit 7 Motion for Preliminary Injunction dated
July 8, 1998, in the Massachusetts
Superior Court, Middlesex County, Civil
Action No. 98-2553."
<PAGE>
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
Dated: July 9, 1998 /s/ *
_______________________________________
M. Mahmud Awan
/s/ Philip A. Phalon
_______________________________________
Philip A. Phalon
/s/ *
_______________________________________
Robert B. Bregman
/s/ *
_______________________________________
William C. Martindale, Jr.
*/s/ Philip A. Phalon
__________________________________
Philip A. Phalon
Attorney - in - Fact
<PAGE>
EXHIBIT 7
COMMONWEALTH OF MASSACHUSETTS
MIDDLESEX, ss. Superior Court
Civil Action No. 98-2553
____________________________________
)
PHILIP A. PHALON, and )
M. MAHMUD AWAN, )
)
Plaintiffs, )
)
v. )
)
TECHNICAL COMMUNICATIONS )
CORPORATION, ARNOLD MCCALMONT, )
HERBERT A. LERNER, ROBERT T. )
LESSARD, CARL H. GUILD, )
MITCHELL B. BRISKIN, DONALD )
LAKE, and THOMAS B. PEOPLES, )
)
Defendants. )
____________________________________)
PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION
(EXPEDITED HEARING REQUESTED)
Pursuant to Mass.R.Civ.P. 65(b), Plaintiffs Philip A. Phalon and M. Mahmud
Awan move this Court for the entry of an order preliminarily and permanently:
i) restraining and enjoining Defendant Technical Communications Corporation
("TCC") and the "Individual Defendants," either individually, as members of the
Board of Directors of TCC (the "Board"), or through TCC, from taking any action
that would cause or have the effect of causing an adjournment or rescheduling of
the annual meeting of TCC stockholders (the "Annual Meeting") set for July 17,
1998, or, in the alternative, any adjournment beyond July 28, 1998, so as to
preserve the present record date for determination of the TCC stockholders
entitled to notice of and to vote at the Annual Meeting (the "Record Date").
ii) restraining and enjoining TCC and the Individual Defendants, either
individually, as members of the Board, or through TCC, from taking any action
that would cause or have the effect of causing the establishment of a Record
Date for the Annual Meeting other than May 29, 1998;
iii) invalidating the actions of the Board taken at a purported special
meeting of the Board on July 2, 1998 (the "Special Meeting") to adjourn and
reschedule the July 17, 1998 Annual Meeting to a date thirty days after TCC's
proxy statement may be approved by the Securities and Exchange Commission
("SEC");
iv) invalidating the actions of the Board taken at the Special Meeting to
establish a Record Date other than May 29, 1998;
v) compelling the Defendants to comply with TCC's past practice of secret
balloting by the beneficial owners (employees and former employees of TCC) of
shares of TCC's common stock held by the TCC Employee Stock Ownership Plan
("ESOP"); and
vi) compelling the Individual Defendants to immediately convene a quorum of
TCC's Board and to take any and all actions necessary to rescind and revoke all
actions taken at the Special Meeting.
<PAGE>
In support of this motion, the Plaintiffs rely upon the Affidavit of Philip
A. Phalon (the "Phalon Aff.") attached hereto and incorporated herein, and state
the following:
1. This motion seeks to enjoin the unlawful conduct1 of the Individual
Defendants, in (i) continuing to illegally circumvent this Court's Memorandum of
Decision and Order of June 9, 1998 (the "Memorandum" and the "Order") by the
actions taken at the Special Meeting; (ii) continuing to engage in self-serving
manipulative corporate governance devices by the actions taken at the Special
Meeting; and (iii) intentionally obstructing the Plaintiffs' efforts to conduct
a proxy contest by the actions taken at the Special Meeting.
2. A court in this Commonwealth will exercise its discretion to grant
preliminary injunctive relief pursuant to Mass.R.Civ.P. 65 if four well
established prerequisites are established: (i) substantial likelihood that the
Plaintiffs will succeed on the merits; (ii) substantial threat that the
Plaintiffs will suffer irreparable injury if the injunction is not granted;
(iii) the threatened injury to the Plaintiffs outweighs any harm to the
Defendant that the injunction may cause; and (iv) that granting the injunction
will preserve the public interest. See Packaging Indus. Group, Inc. v. Cheney,
380 Mass. 609 (1980). The Plaintiffs clearly satisfy all four elements.
3. On June 9, 1998, this Court issued the Memorandum and Order invalidating
the staggered Board scheme adopted at a special meeting of the Board on April
30, 1998.2 In identifying the Annual Meeting on July 17, 1998, the Court ordered
that "[TCC] shall mail a copy of the proxy statement submitted by the plaintiffs
to the SEC to each and every stockholder of the corporation on or before June
17, 1998" and that "[TCC]... shall file an affidavit of compliance with this
order on or before July 3, 1998."3 The Court acknowledged that the Annual
Meeting had already been substantially delayed in violation of Massachusetts law
and TCC's bylaws.4
4. In the afternoon, shortly before the Special Meeting occurred, this
Court held a hearing on the Defendants' post facto Motions for Clarification and
Reconsideration of the Memorandum and Order, which were then taken under
advisement and denied on July 6 and 7, 1998.5
5. The Plaintiffs' preliminary proxy materials were first filed with the
SEC on June 8 1998. The Plaintiffs refiled proxy materials in response to the
SEC's comments and were advised by the SEC on June 19, 1998 that no further
comments were forthcoming. The Defendants waited until June 16, 1998 to file
their initial preliminary proxy materials with the SEC, and the materials so
filed assumed that the Order would be overturned on appeal. The Defendants have
effected only one responsive filing of revised proxy materials on July 1, 1998,
more than two weeks after their initial filing. It is highly disingenuous and in
bad faith for the Defendants to now claim after self-created delay that there is
insufficient time to submit a meaningful proxy statement to the stockholders.
6. The actions taken at the Special Meeting represent another example of a
long and continued series of "manipulative devices designed to prevent a
meaningful proxy contest by dissenting shareholders in willful disregard of the
rights of other shareholders." Memorandum pp. 11 - 12 (referring to the adoption
of a staggered Board scheme).6
<PAGE>
7. It is clear that the Plaintiffs will suffer irreparable harm if the
injunction is not granted. The Plaintiffs' proxy statement was delivered to
TCC's transfer agent on June 29, 1998. Upon information and belief (as the
Plaintiffs have never received a copy of the Defendants' compliance certificate
required by the Order) the Plaintiffs' proxy materials were distributed to
stockholders commencing on or about June 29, 1998. Having been cleared by the
SEC, the Plaintiffs have printed proxy materials, undertaken distribution of
these materials, all at substantial expense; and have undertaken solicitations
of proxies and obtained responses. Any adjournment of the Annual Meeting
requiring a new Record Date would invalidate all proxies solicited in favor of
the Plaintiff's slate. Any delay in the Annual Meeting requiring a new Record
Date would require the Plaintiffs to reprint proxy materials, redistribute and
refile the same with the SEC and would invalidate those proxies already received
by the Plaintiffs in response to the solicitation effort to date.7
8. The Defendants have sufficient time to get their proxy statement
approved by the SEC and distribute it to stockholders before the Annual Meeting.
M.G.L. c. 156B, ss. 36 requires only seven days notice to stockholders of the
Annual Meeting. There is no greater requirement in TCC's Articles or bylaws. If
TCC mailed its proxy materials today, the notice would be legally sufficient for
a meeting held on July 17, 1998. Certainly, a rescheduling of the Annual Meeting
to July 28, 1998 would permit the Defendants eleven additional days to conduct
their solicitation representing an additional 150% of the legal notice
requirement. Because M.G.L. c. 156B, ss. 42 requires that the Record Date be set
no more than sixty days prior to the Annual Meeting, any rescheduling of the
Annual Meeting to a date later than July 28, 1998 would require a new Record
Date, and thus cause irreparable harm to the Plaintiffs.
9. The Defendants already have committed serious breaches of fiduciary
duty, and should not be allowed to benefit by their delay, whether intentional
or negligent. Accordingly, for the reasons set forth herein and in the Phalon
Affidavit, the Plaintiffs request that this Court enter an order invalidating
the Special Meeting and requiring TCC to hold the Annual Meeting as scheduled.
(For the Court's convenience, a proposed Order is attached.)
WHEREFORE, Philip A. Phalon and M. Mahmud Awan request that this Court
enter an order: (i) restraining and enjoining the Individual Defendants either
individually, as members of the Board, or through TCC, from taking any action
that would cause or have the effect of causing an adjournment or rescheduling of
the July 17, 1998 Annual Meeting, or in the alternative, any adjournment beyond
July 28, 1998; (ii) restraining and enjoining the Individual Defendants either
individually, as members of the Board, or through TCC, from taking any action
that would cause or have the effect of causing the establishment of a Record
Date for the Annual Meeting other than May 29, 1998; (iii) invalidating the
actions of the Board taken at the purported Special Meeting on July 2, 1998 to
adjourn and reschedule the Annual Meeting previously set for July 17, 1998 to a
date thirty days after TCC's proxy statement may be approved by the SEC; (iv)
invalidating the actions of the Board taken at the Special Meeting to establish
a new Record Date other than May 29, 1998 as the Record Date for the
determination of the TCC stockholders entitled to vote at the Annual Meeting;
(v) compelling the Defendants to comply with TCC's past practice of secret
balloting by the beneficial owners of the shares of TCC's common stock held by
the ESOP; and (vi) compelling the Individual Defendants to immediately convene a
quorum of TCC's Board and to take any and all actions necessary to rescind and
revoke all actions taken at the Special Meeting, and for such other relief as
may be appropriate.
REQUEST FOR DISPOSITION ON AN EMERGENCY BASIS
The Plaintiffs hereby request, pursuant to Superior Court Rule 9A(e)(1),
that the Court, given the pressing nature of the within motion, schedule the
hearing and disposition of this motion along with the Plaintiffs' Complaint for
Civil Contempt, presently scheduled for hearing on July 10, 1998.
Respectfully submitted,
PHILIP A. PHALON, and
M. MAHMUD AWAN,
By their attorneys,
/s/Mark Resnick
_______________________________________
Robert F. Sylvia (BBO #491060)
Paul Bork (BBO #541815)
Mark Resnick (BBO #559885)
HINCKLEY, ALLEN & SNYDER
28 State Street
Boston, Massachusetts 02109
(617) 345-9000
Dated: July 8, 1998
<PAGE>
CERTIFICATE OF SERVICE
I, Mark S. Resnick, hereby certify that I have this 8th day of July, 1998,
caused to be served a true and accurate copy of the foregoing Motion for
Preliminary Injunction of even date upon the defendants by first class mail,
postage prepaid, and upon all counsel of record by hand delivery.
Signed under the penalties of perjury, this 8th day of July, 1998.
/s/Mark S. Resnick
_______________________________________
Mark S. Resnick
________________________
1 The Defendants continue to dispense with any adherence to the requirements of
law at the drop of a hat, again under cover of advice of counsel. As additional
salt in the wounds, the Special Meeting was invalidly called in violation of
TCC's bylaws which do not permit notice of a special meeting to be given by the
Chairman, Secretary or even the Clerk. See Phalon Aff., P. P. 3 and 10; Bylaws,
Art. II, ss. 7, at Phalon Aff., Ex. B. Moreover, because the Directors (other
than Phalon) have personal interests in its outcome, the Special Meeting did not
and could not satisfy Board quorum requirements under TCC's bylaws. Phalon Aff.,
P. 10; see also Graham v. McGrail, 370 Mass 133 (1976).
2 On July 10, 1998, a hearing is scheduled before this Court on the Plaintiffs'
Complaint for Civil Contempt of the Order with respect to the actions taken at a
special meeting of the Board on June 24, 1998 to "re-adopt" a staggered board
scheme.
3 TCC has failed to comply with the Court's Order as it has not filed an
affidavit of compliance concerning the mailing of the Plaintiffs' proxy
statement, which, to some extent, is believed to have occurred on or about June
29, 1998.
4 The Annual Meeting was required to have been held no later than March 26, 1998
pursuant to M.G.L. c. 156B, ss. 33, and on February 9, 1998 pursuant to TCC's
bylaws. The Record Date is required to be established not more than sixty days
prior to the date of the Annual Meeting pursuant to M.G.L. c. 156B, ss. 42. The
Plaintiffs believe that the May 29, 1998 Record Date and the July 17, 1998
Annual Meeting date were established only after the Plaintiffs' demand,
delivered on April 29, 1998, and that, but for said demand, the Defendants would
have indefinitely deferred any day of reckoning before the TCC stockholders.
5 On June 18, 1998, the Massachusetts Appeals Court denied the Defendants'
appeal of the Order.
6 See also Schnell v. Chris-Craft Industries, Inc., 285 A.2d 437 (Del. 1971);
and Blasius Industries, Inc. v. Atlas Corp., 564 A.2d 651 (Del. Ch. 1988).
7 Moreover, while the "McCalmont Group" has voting rights over a minimal number
of shares, and the ESOP may vote 97,762 shares, the Plaintiffs are wary of any
change in the Record Date that may have created an opportunity for the
acquisition of voting influence.
