Attached files
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EX-99.1 - EX-99.1 - TELECOMMUNICATION SYSTEMS INC /FA/ | w77465exv99w1.htm |
EX-23.1 - EX-23.1 - TELECOMMUNICATION SYSTEMS INC /FA/ | w77465exv23w1.htm |
EX-23.2 - EX-23.2 - TELECOMMUNICATION SYSTEMS INC /FA/ | w77465exv23w2.htm |
EX-99.3 - EX-99.3 - TELECOMMUNICATION SYSTEMS INC /FA/ | w77465exv99w3.htm |
EX-99.2 - EX-99.2 - TELECOMMUNICATION SYSTEMS INC /FA/ | w77465exv99w2.htm |
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K/A
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): December 15, 2009
TeleCommunication Systems, Inc.
(Exact name of registrant as specified in its charter)
MARYLAND | 000-30821 | 52-1526369 | ||
(State or other jurisdiction | (Commission File Number) | (IRS Employer | ||
of incorporation) | Identification No.) |
275 West Street
Annapolis, Maryland 21401
(Address of principal executive offices, including zip code)
Annapolis, Maryland 21401
(Address of principal executive offices, including zip code)
(410) 263-7616
(Registrants telephone number, including area code)
(Registrants telephone number, including area code)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the
filing obligation of the registrant under any of the following provisions:
o | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) | |
o | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) | |
o | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) | |
o | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Item 2.01. Completion of Acquisition or Disposition of Assets.
On December 16, 2009, TeleCommunication Systems, Inc. (the Company, we, us and our) filed a
Current Report on Form 8-K to report that, pursuant to an Agreement and Plan of Merger dated
November 25, 2009 (the Merger Agreement) by and among the Company, Networks in Motion, Inc.
(NIM), Olympus Merger Sub Inc., a Delaware corporation and a wholly-owned subsidiary of the
Company (Merger Sub), and G. Bradford Jones, as stockholders representative, Merger Sub merged
with and into NIM (the Merger) with NIM surviving as a wholly owned subsidiary of the Company.
The Merger closed and became effective on December 15, 2009. This Current Report on Form 8-K/A is
being filed in part to provide the financial statements and pro forma financial information
described under Item 9.01 below.
Item 8.01. Other Events.
The Company is also filing this Current Report on Form 8-K for the purpose of updating the
description of its capital stock. That description was contained in the registration statement on
Form 8-A (File No. 000-30821) filed with the Securities and Exchange Commission (the SEC) on June
19, 2000 pursuant to Section 12(g) of the Securities Exchange Act of 1934 (as amended) (the
Exchange Act). To the extent the following description is inconsistent with prior filings, it
modifies and supersedes those filings. This description will be available for incorporation by
reference into certain of the Companys filings with the SEC under the Securities Act of 1933, as
amended, and the Exchange Act, including registration statements.
DESCRIPTION OF CAPITAL STOCK
The following description of our capital stock, together with any additional information we include
in any applicable prospectus supplements, summarizes the material terms and provisions of our
capital stock that we may offer in offerings under this prospectus. For the complete terms of our
capital stock, please refer to our charter and by-laws, which are exhibits to the registration
statement that includes this prospectus. The terms of our capital stock may also be affected by
Maryland law.
Common Stock
As of September 30, 2009, pursuant to our charter, we are authorized to issue 300,000,000 shares of
capital stock, of which 225,000,000 shares are classified as Class A common stock, par value $0.01
per share (Class A Common Stock) and 75,000,000 shares are classified as Class B common stock,
par value $0.01 per share (Class B Common Stock collectively with the Class A Common Stock, the
Common Stock). As of September 30, 2009, there were 42,273,555 shares of Class A Common Stock
issued and outstanding and 6,391,334 shares of Class B Common Stock issued and outstanding.
The holders of our Class A Common Stock and Class B Common Stock have substantially similar rights,
except that the holders of our Class A Common Stock are entitled to one vote per
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share and holders of our Class B Common Stock are entitled to three votes per share on all matters
submitted to a vote of the stockholders. The holders of our Class A Common Stock and Class B Common
Stock will generally vote as a single class on all matters upon which stockholders have a right to
vote. Each share of our Class B Common Stock is convertible at any time, at the option of the
holder, into one share of our Class A Common Stock. Each share of our Class B Common Stock will
convert automatically into one share of our Class A Common Stock upon transfer, with limited
exceptions for transfers to related parties and estate-planning transfers and certain permitted
pledges. Once converted into shares of our Class A Common Stock, shares of our Class B Common Stock
will be cancelled and not reissued. Neither the Class A Common Stock nor the Class B Common Stock
may be subdivided or combined unless the shares of the other class are subdivided or combined in
the same proportion. Shares of our Class B Common Stock are not being registered under this
prospectus and currently we have no plans to offer any shares of our Class B Common Stock in the
future.
Holders of both our Class A Common Stock and Class B Common Stock are entitled to receive
dividends, if any, as our Board of Directors (the Board) may declare out of legally available
funds, on a ratable basis, subject to preferences that may be applicable to any then-outstanding
preferred stock. We may not make any dividend or distribution to any holder of either class of our
Common Stock unless simultaneously with such dividend or distribution we make the same dividend or
distribution with respect to each outstanding share of the other class of Common Stock. In the case
of a dividend or other distribution payable in shares of a class of Common Stock, including
distributions pursuant to stock splits or divisions of our capital stock, only shares of our Class
A Common Stock may be distributed with respect to Class A Common Stock and only shares of our Class
B Common Stock may be distributed with respect to Class B Common Stock. Whenever a dividend or
distribution, including distributions pursuant to stock splits or divisions of the Common Stock, is
payable in shares of a class of Common Stock, the number of shares of each class of Common Stock
payable per share of such class of Common Stock shall be equal in number.
In the event of a liquidation, dissolution, or winding up of our company, holders of our Common
Stock will be entitled to share ratably in the net assets legally available for distribution to
stockholders after payment of all of our liabilities and the liquidation preferences of any
preferred stock then outstanding. Holders of our Common Stock have no preemptive rights,
subscription rights or conversion rights, except as described above. There are no redemption or
sinking fund provisions applicable to our Common Stock.
The rights, preferences and privileges of holders of our Class A Common Stock and holders of our
Class B Common Stock are subject to the rights of the holders of shares of any series of preferred
stock that we may designate and issue in the future.
Under the Maryland General Corporation Law, a Maryland corporation generally cannot dissolve, amend
its charter, merge, sell all or substantially all of its assets, engage in a share exchange or
engage in similar transactions outside the ordinary course of business unless approved by the
affirmative vote of stockholders holding at least two-thirds of the shares entitled to vote on the
matter. A Maryland corporation may provide, however, in its charter for approval of these matters
by a lesser percentage, but not less than a majority of all of the votes entitled to
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be cast on the matter. Our charter provides for approval of these matters by the affirmative vote
of the holders of a majority of the total number of shares of all classes outstanding and entitled
to vote thereon.
Preferred Stock
As of September 30, 2009, pursuant to our charter, our Board has the authority, without further
action by the holders of Common Stock, to issue shares of preferred stock in one or more classes or
series and to fix the relative designations, powers, preferences and privileges of the preferred
stock, any or all of which may be greater than the rights of the Common Stock. Our Board, without
stockholder approval, can issue preferred stock with voting, conversion or other rights that could
adversely affect the voting power and other rights of the holders of Common Stock. Preferred stock
could thus be issued quickly with terms that could delay or prevent a change in control of us or
make removal of our management more difficult. Additionally, the issuance of preferred stock may
decrease the market price of our Class A Common Stock and may adversely affect the voting and other
rights of the holders of our Class A Common Stock and Class B Common Stock. As of September 30,
2009, we do not have any preferred stock authorized or outstanding.
The rights, preferences, privileges and restrictions of the preferred stock of each series will be
fixed by the Board by filing articles supplementary relating to each series. A prospectus
supplement relating to each series will specify the terms of the preferred stock, including, but
not limited to:
| the distinctive designation and the maximum number of shares in the series; | ||
| the terms on which dividends, if any, will be paid; | ||
| the voting rights, if any, on the shares of the series; | ||
| the terms and conditions, if any, on which the shares of the series shall be convertible into, or exchangeable for, shares of any other class or classes of capital stock; | ||
| the terms on which the shares may be redeemed, if at all; | ||
| the liquidation preference, if any; and | ||
| any or all other preferences, rights, restrictions, including restrictions on transferability, and qualifications of shares of the series. |
We will describe the specific terms of a particular series of preferred stock in the prospectus
supplement relating to that series. The description of preferred stock above and the description of
the terms of a particular series of preferred stock in the prospectus supplement are not complete.
You should refer to the applicable articles supplementary for complete information. The prospectus
supplement will contain a description of U.S. federal income tax consequences relating to the
preferred stock.
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Transfer Agent and Registrar
The transfer agent and registrar for our Class A Common Stock is American Stock Transfer & Trust
Company, 59 Maiden Lane, Plaza Level, New York, New York 10038.
Possible Anti-Takeover Effects of Maryland Law and our Charter and Bylaws
Our charter and bylaws contain provisions that may make it more difficult for a third party to
acquire control of us without the approval of our Board. In addition, provisions of the Maryland
General Corporation Law may hinder or delay an attempted takeover of our company other than through
negotiation with our Board. These provisions could discourage attempts to acquire us or remove our
management even if some or a majority of our stockholders believe this action to be in their best
interest, including attempts that might result in our stockholders receiving a premium over the
market price of their shares of our capital stock.
Number of Directors; Classified Board of Directors; Removal; Vacancies. The number of directors on
our Board may only be altered by the action of a majority of the entire Board. Our Board is divided
into three classes serving staggered three-year terms, with the directors in one of these classes
being elected each year. Section 2-406(b)(3) of the Maryland General Corporation Law provides that
stockholders of corporations that have classified boards may only remove directors for cause. Our
charter provides that directors may be removed from office by stockholders only for cause, and then
only by the affirmative vote of a majority of all votes entitled to be cast generally for the
election of directors. The stockholders can fill a vacancy on the Board that results from the
removal of a director. Vacancies resulting from the removal of a director that are not filled by
the stockholders by the conclusion of the next succeeding annual meeting of the stockholders, can
be filled by a majority vote of the remaining directors, whether or not sufficient to constitute a
quorum. A vacancy resulting from an increase in the number of directors can be filled by a majority
of the entire Board. A vacancy resulting from any other reason can be filled by a majority of the
remaining directors, whether or not sufficient to constitute a quorum. A director elected by the
Board to fill a vacancy serves until the next annual meeting of stockholders and until his or her
successor is elected and qualifies.
Power to Issue Preferred Stock. Our Board, has the authority, without further action by the
holders of our Common Stock, to issue shares of preferred stock in one or more classes or series
and to fix the relative designations, powers, preferences and privileges of the preferred stock,
any or all of which may be greater than the rights of the Common Stock. Our Board, without
stockholder approval, can issue preferred stock with voting, conversion or other rights that could
adversely affect the voting power and other rights of the holders of Common Stock.
Power to Reclassify Shares of Our Stock. Our charter authorizes our Board to classify and
reclassify any unissued shares of capital stock into a class or other classes of preferred stock,
preference stock, special stock or other stock and to divide and classify shares of any class into
one or more series of such class. Prior to issuance of shares of each class or series, our Board is
required by the Maryland General Corporation Law and by our charter to set the terms, preferences,
conversion or other rights, voting powers, restrictions, limitations as to dividends or
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other distributions, qualifications and terms of conditions of redemption for each class or series.
Special Stockholders Meetings. Our bylaws provide that special meetings of stockholders may be
called only by a majority of the Board or by our chairman or chief executive officer, or by our
stockholders only upon the written request of stockholders entitled to cast at least a majority of
all the votes entitled to be cast at the meeting.
Advance Notice Provisions. Our bylaws establish an advance written notice procedure for
stockholders seeking to nominate candidates for election as directors at any annual meeting of
stockholders and to bring business before an annual meeting of our stockholders. Our bylaws provide
that only persons who are nominated by or at the direction of our board or by a stockholder who has
given timely written notice to our secretary before the meeting to elect directors will be eligible
for election as our directors. Our bylaws also provide that any matter to be presented at any
meeting of stockholders must be presented either by our board or by a stockholder in compliance
with the procedures in our bylaws. A stockholder must give timely written notice to our secretary
of its intention to present a matter before an annual meeting of stockholders.
Maryland Business Combination Act. In addition to these provisions of our charter and bylaws, we
are subject to the provisions of Maryland Business Combination Act (the Business Combination Act)
which prohibits transactions between a Maryland corporation and an interested stockholder or an
affiliate of an interested stockholder for five years after the most recent date on which the
interested stockholder becomes an interested stockholder. Generally, pursuant to the Business
Combination Act, an interested stockholder is a person who, together with affiliates and
associates, beneficially owns, directly or indirectly, 10% or more of a Maryland corporations
voting stock. These provisions could have the effect of delaying, preventing or deterring a change
in control of our company or reducing the price that certain investors might be willing to pay in
the future for shares of our capital stock. In our charter and bylaws, we have elected not to have
the Business Combination Act apply to a business combination (as such term is defined in the
Business Combination Act) between us and Maurice B. Tosé, our President and Chief Executive
Officer, or any entity controlling, controlled by or under common control with Mr. Tosé or by
certain other persons or entities related to Mr. Tosé.
Maryland Control Share Acquisition Act. The Maryland Control Share Acquisition Act may deny voting
rights to shares involved in an acquisition of one-tenth or more of the voting stock of a Maryland
corporation. In our charter and bylaws, we have elected not to have the Maryland Control Share
Acquisition Act apply to any shares of our capital stock owned or beneficially held by Mr. Tosé or
any entity controlling, controlled by or under common control with Mr. Tosé or by certain other
persons or entities related to Mr. Tosé.
Item 9.01 Financial Statements and Exhibits.
(a) Financial Statements of Business Acquired.
The audited consolidated balance sheets of NIM as of December 31, 2008 and 2007 and the
consolidated statement of operations, consolidated statement of stockholders deficit and
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consolidated statement of cash flows for the two year period ended December 31, 2008 of NIM and the
notes related thereto, along with the Reports of Independent Auditors, Ernst & Young LLP
and PricewaterhouseCoopers LLP are incorporated by reference and attached as Exhibit 99.1 hereto.
The unaudited condensed consolidated balance sheets of NIM as of September 30, 2009 and December
31, 2008 and the unaudited condensed consolidated statements of operations and condensed consolidated
statements of cash flows of NIM for the nine months ended September 30, 2009 and 2008, and the
condensed notes related thereto, are hereby incorporated by reference and attached as Exhibit 99.2
hereto.
(b) Pro Forma Financial Information.
The unaudited pro forma condensed consolidated financial statements are attached hereto as Exhibit
99.3 and incorporated herein by reference.
(d) Exhibits.
23.1 | Consent of Independent Accountants, PricewaterhouseCoopers LLP. | ||
23.2 | Consent of Independent Accountants, Ernst and Young LLP. | ||
99.1 | Audited consolidated financial statements of Networks in Motion, Inc. as of December 31, 2008 and 2007 and for the two year period ended December 31, 2008 with Reports of Independent Auditors. | ||
99.2 | Unaudited condensed consolidated financial statements of Network in Motion, Inc. as of September 30, 2009 and December 31, 2008 and for the nine months ended September 30, 2009 and 2008. | ||
99.3 | Unaudited pro forma condensed consolidated financial statements as of September 30, 2009 and for the nine months ended September 30, 2009 and for the year ended December 31, 2008. |
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused
this report to be signed on its behalf by the undersigned hereunto duly authorized.
TeleCommunication Systems, Inc. |
||||
By: | /s/ Bruce A. White | |||
Name: | Bruce A. White | |||
Title: | Sr. Vice President, General Counsel and Secretary | |||
Dated: February 19, 2010
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