As filed with the Securities and Exchange Commission on August 12, 1997
Registratio No. 333 -
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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NEXTLEVEL SYSTEMS, INC.
(Exact name of registrant as specified in its charter)
Delaware 36-4134221
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
8770 West Bryn Mawr Avenue
Chicago, Illinois 60631
(Address of registrant's principal executive
offices)
NEXTLEVEL SYSTEMS, INC. 1997 LONG-TERM INCENTIVE PLAN
(Full title of the plan)
Keith A. Zar, Esq.
Vice President and General Counsel
8770 West Bryn Mawr
Chicago, Illinois 60631
(773) 695-1000
(Name, address, and telephone number of agent for service)
CALCULATION OF REGISTRATION FEE
======================== ============ ============= =============== ============
Proposed
Maximum Proposed
Offering Maximum Amount of
Title of Securities Amount to be Price Aggregate Registration
to be Registered Registered Per Share Offering Price Fee
======================== ============ ============= =============== ============
Common Stock, $.01 par 23,155,562 $16.4087 (1) $379,952,441 (1) $115,137.10
value per share shares
======================== ============ ============= =============== ============
(1) Estimated solely for the purpose of determining the registration fee
pursuant to Rule 457(h) and in accordance therewith includes (i) 6,500,000
shares subject to options to be granted under the Plan based on the basis
of the average of the high and low sales prices for the Common Stock
reported by the New York Stock Exchange on August 8, 1997 and (ii)
16,655,562 shares subject to existing options based upon the price at which
such options may be exercised.
<PAGE>
EXPLANATORY NOTE
As permitted by the rules of the Securities and Exchange Commission,
(the "Commission"), this Registration Statement omits the information specified
in 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 NextLevel Systems,
Inc. (the "Company") with the Securities and Exchange Commission (the
"Commission"), are incorporated by reference in this Registration Statement.
(a) The Prospectus dated June 13, 1997 filed with the
Commission pursuant to Rule 424(b) under the Securities Act of 1933, as
amended (the "Securities Act"), and included in its Registration
Statement on Form S-4 (File No. 333-23935) (the "Form S-4"); and
(b) The Description of the Common Stock of the Company
contained in the Registration Statement on Form 8-A filed with the
Commission on April 24, 1997 including any amendment or report filed
for the purposes of updating such description.
All documents filed subsequent to the date hereof by the
Company pursuant to Sections 13(a), 13(c), 14, and 15(d) of the Securities
Exchange Act of 1934, (the "Exchange Act"), prior to the filing of a
post-effective amendment which indicates that all securities offered hereby have
been sold or which deregisters all securities then remaining unsold, shall be
deemed to be incorporated herein by reference and to be a part hereof from the
date of the filing (such documents and the documents enumerated above, being
hereinafter referred to as "Incorporated Documents"). Any statement contained
herein or in an Incorporated Document deemed to be incorporated by reference
herein shall be deemed to be modified or superseded for purposes hereof to the
extent that a statement contained herein or in any other subsequently filed
Incorporated Document modifies or supersedes such statement. Any such statement
so modified or superseded shall not be deemed, except as so modified or
superseded, to constitute a part hereof.
The combined financial statements of the Communications
Business of General Instrument Corporation, incorporated by reference in this
Registration Statement from the Form S-4 Registration Statement, as of December
31, 1996 and 1995 and for each of the three years in the period ended December
31, 1996 have been audited by Deloitte & Touche LLP, independent auditors, as
stated in their report appearing in the Form S-4 Registration Statement, and are
incorporated herein by reference in reliance upon their authority as experts in
accounting and auditing. Future financial statements of the Registrant and the
reports thereon of the Registrants' independent auditors to be included in
subsequent filed documents also will be incorporated by reference in this
Registration Statement in reliance upon the authority of such independent
auditors as experts in accounting and auditing to the extent such independent
auditors have audited those financial statements and consented to the use of
their reports thereon.
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel
The validity of the securities registered under this Registration
Statement has been passed upon for the Company by Keith A. Zar, Esq., General
Counsel of the Company. Mr. Zar owns and holds options to purchase shares of
common stock of the Company, and is a participant in several of its employee
benefit plans.
Item 6. Indemnification of Directors and Officers
Section 145 of the Delaware General Corporation Law (the "DGCL")
provides that a corporation may indemnify directors and officers as well as
other employees and individuals against expenses (including attorneys' fees),
judgments, fines, and amounts paid in settlement in connection with specified
actions, suits, or proceedings whether civil, criminal, administrative, or
investigative, other than action by or in the right of the corporation (a
"derivative action"), if they acted in good faith and in a manner they
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 their conduct was unlawful. A similar standard is
applicable in the case of derivative actions, except that indemnification only
extends to expenses (including attorney's fees) incurred in connection with the
defense or settlement of such action, and the statute requires court approval
before there can be any indemnification where the person seeking indemnification
has been found liable to the corporation. The statute provides that it is not
exclusive of other indemnification that may be granted by a corporation's
charter, by-laws, disinterested director vote, stockholder vote, agreement, or
otherwise.
Section 102(b)(7) of the DGCL permits a corporation to provide in its
certificate of incorporation that a director of the corporation shall not be
personally liable to the corporation or its stockholders for monetary damages
for breach of fiduciary duty as a director, except for liability for (i) any
breach of the director's duty of loyalty to the corporation or its stockholders,
(ii) acts or omissions not in good faith or which involve intentional misconduct
or a knowing violation of law, (iii) payment of unlawful dividends or unlawful
stock purchases or redemptions, or (iv) any transaction from which the director
derived an improper personal benefit.
Article Sixth of the Amended and Restated Certificate of Incorporation
of the Company provides that directors of the Company shall not, to the fullest
extent permitted by the DGCL, be liable to the Company or any of its
stockholders for monetary damages for any breach of fiduciary duty as director.
The Certificate of Incorporation of the Company also provides that if the DGCL
is amended to permit further elimination or limitation of the personal liability
of directors, then the liability of the directors of the Company shall be
eliminated or limited to the fullest extent permitted by the DGCL as so amended.
The Company has entered into agreements to indemnify its directors and
officers in addition to the indemnification provided for in its Amended and
Restated Certificate of Incorporation and Amended and Restated By-Laws. These
agreements, among other things, indemnify the Company's directors and officers
to the fullest extent permitted by Delaware law for certain expenses (including
attorney's fees), liabilities, judgments, fines and settlement amounts incurred
by such person arising out of or in connection with such person's service as a
director or officer of the Company or an affiliate of the Company.
The Company will maintain directors' and officers' liability insurance
which will provide for payment, on behalf of the directors and officers thereof
and its subsidiaries, of certain losses of such persons (other than matters
uninsurable under law) arising from claims, including claims arising under the
Act, for acts or omissions by such persons while acting as directors or officers
thereof and/or its subsidiaries, as the case may be.
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
Exhibit No. Description of Exhibit
4.1 -- Form of Amended and Restated Certificate of Incorporation (attached
as Annex B to the Proxy Statement-Prospectus dated June 13, 1997
included in Company's Registration Statement on Form S-4 (File
No.333-23935) (the "Form S-4"))*/.
4.2 -- Form of Amended and Restated By-Laws (attached as Annex E to the Proxy
Statement-Prospectus dated June 13, 1997 included in the Form S-4)*/.
4.3 -- Form of Common Stock Certificate (filed as Exhibit 4.2 to the Form
S-4)*/.
4.4 -- Rights Agreement, dated as of June 12, 1997, between NextLevel Systems,
Inc. and ChaseMellon Shareholder Services, L.L.C., as Rights Agent
(filed as Exhibit 1 to the Company's Registration Statement on Form 8-A
filed with the Commission on June 30, 1997 (File No. 001-12925)**/
5.1 -- Opinion of Keith A. Zar, Esq.
23.1 -- Consent of Deloitte & Touche LLP
23.2 -- Consent of Keith A. Zar, Esq. (included in Exhibit 5.1)
24.1 -- Powers of Attorney (included on the signature pages)
*/ Incorporated by Reference (File No. 333-23935)
**/ Incorporated by Reference (File No. 001-12925)
Item 9. Undertakings
The Company hereby undertakes:
(a) To file, during any period in which offers or sales are
being made, a post-effective amendment to the Registration Statement 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.
(b) That, for the purpose of determining any liability under
the Securities Act, each post-effective amendment to this 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.
(c) 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.
(d) That, for the purpose of determining any liability under
the Securities Act, each filing of the Company's annual report pursuant
to Section 13(a) or Section 15(d) of the Exchange Act that is
incorporated by reference in this 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 Company pursuant to the foregoing provisions, or
otherwise, the Company 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 Company of expenses incurred or paid by a director,
officer or controlling person of the Company 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 Company 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.
<PAGE>
SIGNATURES
The Company. Pursuant to the requirements of the Securities Act of
1933, the Company 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 Chicago, Illinois, on August 12, 1997.
NEXTLEVEL SYSTEMS, INC.
By: /s/Richard S. Friedland
-----------------------
Richard S. Friedland
Chairman and
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints Richard S. Friedland and Charles
T. Dickson, and each of them, as his true and lawful attorneys-in-fact and
agents, each acting alone, with full powers of substitution and resubstitution,
for him in his or her name, place and stead, in any and all capacities, to sign
any and all amendments to this Registration Statement, including any and all
amendments, and any and all documents in connection therewith, and to file the
same, with all exhibits thereto, and all documents in connection therewith, with
the Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as fully to all
intents and purposes as he might or could do in person, and hereby ratifies,
approves and confirms all that his said attorneys-in-fact and agents, each
acting alone, or his substitute or substitutes, may lawfully 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 by the following persons in the
capacities and on the dates indicated:
Signature Title Date
--------- ----- ----
/s/Richard S. Friedland Chairman and Chief Executive August 12, 1997
- ------------------------- Officer (Principal Executive
Richard S. Friedland Officer) and Director
/s/Charles T. Dickson Vice President and Chief August 12, 1997
- ------------------------- Financial Officer
Charles T. Dickson (Principal Financial Officer)
/s/Paul J. Berzenski Vice President and Controller August 12, 1997
- ------------------------- (Principal Accounting Officer)
Paul J. Berzenski
/s/John Seely Brown Director August 12, 1997
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John Seely Brown
/s/Frank M. Drendel Director August 12, 1997
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Frank M. Drendel
/s/Lynn Forester Director August 12, 1997
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Lynn Forester
/s/Theodore J. Forstmann Director August 12, 1997
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Theodore J. Forstmann
/s/Alex M. Mandl Director August 12, 1997
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Alex M. Mandl
/s/J. Tracy O'Rourke Director August 12, 1997
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J. Tracy O'Rourke
/s/Roel Pieper Director August 12, 1997
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Roel Pieper
<PAGE>
INDEX TO EXHIBITS
Exhibit No.
Description of Exhibit Page No.
4.1 -- Form of Amended and Restated Certificate of Incorporation (attached
as Annex B to the Proxy Statement-Prospectus dated June 13, 1997
included in Company's Registration Statement on Form S-4 (File No.
333-23935) (the "Form S-4"))*/
4.2 -- Form of Amended and Restated By-Laws (attached as Annex E to the Proxy
Statement-Prospectus included in the Form S-4)*/
4.3 -- Form of Common Stock Certificate (filed as Exhibit 4.2 to the Form
S-4)*/
4.4 -- Rights Agreement, dated as of June 12, 1997, between NextLevel
Systems, Inc. and ChaseMellon Shareholder Services, L.L.C., as Rights
Agent (filed as Exhibit 1 to the Company's Registration Statement on
Form 8-A filed with the Commission on June 30, 1997 (File No.
001-12925)**/
5.1 -- Opinion of Keith A. Zar, Esq. 9
23.1 -- Consent of Deloitte & Touche LLP 11
23.2 -- Consent of Keith A. Zar, Esq. (included in Exhibit 5.1) 9
24.1 -- Powers of Attorney (included on the signature pages) 6
*/ Incorporated by reference (File No. 333-23935)
**/ Incorporated by Reference (File No. 001-12925)
<PAGE>
EXHIBIT 5.1
August 12, 1997
NextLevel Systems, Inc.
8770 West Bryn Mawr
Chicago, IL 60631
Ladies and Gentlemen:
I am General Counsel of NextLevel Systems, Inc., a Delaware
Corporation (the "Company"). In that capacity, I have acted as counsel for the
Company in connection with the registration, pursuant to a Registration
Statement on Form S-8, of 23,155,562 shares (the "Shares") of Common Stock, par
value $.01 per share, of the Company which may be made the subject of options,
stock appreciation rights, restricted stock, performance units, performance
shares and phantom stock that may be granted under the NextLevel Systems, Inc.
1997 Long-Term Incentive Plan (the "Plan") to employees of the Company and its
subsidiaries and which may be made the subject of options granted to
non-employee directors pursuant to the plan.
I, or attorneys under my supervision, have examined the
originals, or certified, conformed or reproduction copies, of all records,
agreements, instruments and documents as I have deemed relevant or necessary as
the basis for the opinion hereinafter expressed. In all such examinations, I, or
attorneys under my supervision, have assumed the genuineness of all signatures
on original or certified copies and the conformity to original or certified
copies of all copies submitted to me as conformed or reproduction copies. I, or
attorneys under my supervision, have relied upon certificates and statements of
public officials and officers or representatives of the Company and of others.
Based upon the foregoing and subject to the limitations,
qualifications and assumptions set forth herein, I am of the opinion that the
issuance of the Shares pursuant to the Plan has been duly authorized and that
such Shares, when issued, sold and delivered as authorized in accordance with
the Plan, will be validly issued, fully paid and non-assessable.
This opinion is limited to the General Corporation of the
State of Delaware.
I hereby consent to the filing of this opinion as an exhibit
to the Company's Registration Statement on Form S-8. In giving such consent, I
do not hereby admit that I am in the category of such persons whose consent is
required under Section 7 of the Securities Act of 1933, as amended.
The opinion expressed here is solely for your benefit and may
not be relied upon in any manner or for any purpose by any other person or
entity and may not be quoted in whole or in part without my prior written
consent.
Very truly yours,
/s/Keith A. Zar
---------------
Keith A. Zar
Vice President and General Counsel
<PAGE>
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
NextLevel Systems, Inc. on Form S-8 of our report relating to the Communications
Business of General Instrument Corporation dated February 3, 1997 (February 28,
1997 as to Note 17), appearing in the Registration Statement on Form S-4 (File
No. 333-23935) of NextLevel Systems, Inc., and to the reference to us as experts
in Part II, Item 3 of this Registration Statement.
/s/Deloitte & Touche LLP
- ------------------------
Deloitte & Touche LLP
Chicago, Illinois
August 11, 1997
<PAGE>
August 12, 1997
BY ELECTRONIC TRANSMISSION
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, DC 20549
Re: NextLevel Systems, Inc.
Registration Statement on Form S-8
Ladies and Gentlemen:
NextLevel Systems, Inc. (the "Company"), pursuant to the Securities Act of 1933,
as amended, is filing by direct transmission in electronic format the Company's
Registration Statement on Form S-8 relating to the registration of 23,155,562
shares of Common Stock, par value $.01 per share, of the Company issuable
pursuant to the Company's 1997 Long-Term Incentive Plan. All of the exhibits are
either included within the direct electronic transmission or incorporated by
reference.
The filing fee of $115,137.10 was paid by intrabank transfer on August 11, 1997,
to the Securities and Exchange Commission, Account Number 910-8739, Mellon Bank
of Pittsburgh, Pennsylvania, ABA No. 043000261.
Please direct any questions or comments that the Commission Staff may have with
regard to the filing to the undersigned at (773) 695-1040.
Very truly yours,
/s/ Keith A. Zar
- ----------------
Keith A. Zar
