SEC Comment Letter for TESSCO TECHNOLOGIES INC (CIK 0000927355) — Oct 27, 2020
TESSCO TECHNOLOGIES INC (CIK 0000927355)
Date: Oct. 27, 2020 · CIK: 0000927355 · Accession: 0000000000-20-010153
AI Filing Summary & Sentiment
File numbers found in text: 001-33938
Letter
UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 DIVISION OF CORPORATION FINANCE October 27, 2020 Via Email Aric Spitulnik Chief Financial Officer TESSCO Technologies Incorporated 11126 McCormick Road Hunt Valley, Maryland 21031
Re: TESSCO Technologies Incorporated Definitive Additional Materials filed under cover of Schedule 14A Filed on October 26, 2020 File No. 001-33938
Dear Mr. Spitulnik :
We have reviewed the above -captioned filing and have the following comment:
1. The filing contains a number of statements that indicate that Mr. Barnhill is seeking “control” of the Company and/or the Board without “paying” shareholders a “premium” in exchange for that “control .” Those statements and references to “control,” “payment” and “premium” imply that Mr. Barnhill is in fact seeking to acquire control of the Company via the consent solicitation as opposed to simply exercising his rights as a shareholder to solicit consents to remove and replace members of the Board. Given that Mr. Barnhill will n ot own a controlling position in the Company even if his solicitation is successful, it remains unclear why any premium or other payment would be due. We also are unaware of any applicable law that would require Mr. Barnhill to pay a “premium ” in this con text or any solicitation undertaken in compliance with Section 14(a) and corresponding Regulation 14A in which a person soliciting consents or proxies paid a “premium” to shareholders in exchange for a vote in favor of their candidates. In future filings, please refrain from creating the impression that any payment is legally or otherwise owed to shareholders given the Rule 14a -9 prohibition against omissions of material fact necessary to accurately make statements in light of the circumstances under which they are made. Please also refrain from statements that indicate that Mr. Barnhill is seeking to gain “control” of the Company via his consent solicitation. Mr. Barnhill’s nominees, if elected, will owe fiduciary duties and otherwise be accountable to a ll of the Company’s shareholders. While Mr. Barnhill and his nominees, if elected, would comprise a majority of the Board, as a matter of law and fact, Mr. Barnhill will not be obtaining “control” of the Company within the meaning of the term as defined i n Rule 12b -2 if his solicitation succeeds.
Arik Spitulnik TESSCO Technologies Incorporated October 27, 2020 Page | 2
We remind you that the registrant is responsible for the accuracy and adequacy of its disclosures, notwithstanding any review, comments, action or absence of action by the staff.
Please direct any questions t o me, at (202) 551 -8729, or , in my absence, to Daniel Duchovny, Special Counsel , at (202) 551 -3619 .
Sincerely,
/s/ Valian A. Afshar
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
DIVISION OF
CORPORATION FINANCE
October 27, 2020
Via Email
Aric Spitulnik
Chief Financial Officer
TESSCO Technologies Incorporated
11126 McCormick Road
Hunt Valley, Maryland 21031
Re: TESSCO Technologies Incorporated
Definitive Additional Materials filed under cover of Schedule 14A
Filed on October 26, 2020
File No. 001-33938
Dear Mr. Spitulnik :
We have reviewed the above -captioned filing and have the following comment:
1. The filing contains a number of statements that indicate that Mr. Barnhill is seeking
“control” of the Company and/or the Board without “paying” shareholders a “premium”
in exchange for that “control .” Those statements and references to “control,” “payment”
and “premium” imply that Mr. Barnhill is in fact seeking to acquire control of the
Company via the consent solicitation as opposed to simply exercising his rights as a
shareholder to solicit consents to remove and replace members of the Board. Given that
Mr. Barnhill will n ot own a controlling position in the Company even if his solicitation
is successful, it remains unclear why any premium or other payment would be due. We
also are unaware of any applicable law that would require Mr. Barnhill to pay a
“premium ” in this con text or any solicitation undertaken in compliance with Section
14(a) and corresponding Regulation 14A in which a person soliciting consents or
proxies paid a “premium” to shareholders in exchange for a vote in favor of their
candidates. In future filings, please refrain from creating the impression that any
payment is legally or otherwise owed to shareholders given the Rule 14a -9 prohibition
against omissions of material fact necessary to accurately make statements in light of the
circumstances under which they are made. Please also refrain from statements that
indicate that Mr. Barnhill is seeking to gain “control” of the Company via his consent
solicitation. Mr. Barnhill’s nominees, if elected, will owe fiduciary duties and otherwise
be accountable to a ll of the Company’s shareholders. While Mr. Barnhill and his
nominees, if elected, would comprise a majority of the Board, as a matter of law and
fact, Mr. Barnhill will not be obtaining “control” of the Company within the meaning of
the term as defined i n Rule 12b -2 if his solicitation succeeds.
Arik Spitulnik
TESSCO Technologies Incorporated
October 27, 2020
Page | 2
We remind you that the registrant is responsible for the accuracy and adequacy of its
disclosures, notwithstanding any review, comments, action or absence of action by the staff.
Please direct any questions t o me, at (202) 551 -8729, or , in my absence, to Daniel
Duchovny, Special Counsel , at (202) 551 -3619 .
Sincerely,
/s/ Valian A. Afshar
Valian A. Afshar
Special Counsel
Office of Mergers and Acquisitions
cc: Douglas M. Fox , Esq.
Ballard Spahr LLP