AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST
13, 1997
REGISTRATION NO. 333 -
===============================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------------------------
COMMSCOPE, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 36-4135495
(State or other (I.R.S. Employer
jurisdiction of Identification
incorporation or Number)
organization)
1375 LENOIR-RHYNE
BOULEVARD
HICKORY, NORTH CAROLINA
28601
(Address of registrant's
principal executive
offices, including zip
code)
COMMSCOPE, INC. 1997 LONG-TERM INCENTIVE PLAN
(Full title of the plan)
JEARLD L. LEONHARDT
EXECUTIVE VICE PRESIDENT, FINANCE AND
ADMINISTRATION, AND TREASURER
1375 LENOIR-RHYNE BOULEVARD
HICKORY, NORTH CAROLINA 28601
(704) 324-2200
(Name, address, and telephone number of agent for service)
---------------------------------
CALCULATION OF REGISTRATION FEE
=================================================================
PROPOSED PROPOSED
TITLE OF AMOUNT TO MAXIMUM MAXIMUM AMOUNT OF
SECURITIES BE OFFERING AGGREGATE REGISTRATION
TO BE REGISTERED PRICE PER OFFERING FEE
REGISTERED SHARE PRICE
- -----------------------------------------------------------------
Common Stock, 4,349,030 $14.5302(1) $63,192,424 $19,149.22
$.01 par value shares (1)
per share
=================================================================
(1) Estimated solely for the purpose of determining the
registration fee pursuant to Rule 457(h) and in accordance
therewith includes (i) 2,200,000 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 6, 1997 and (ii)
2,149,030 shares subject to existing options based upon the
price at which such options may be exercised.
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 CommScope,
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 consolidated financial statements of CommScope,
Inc. of North Carolina 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
Not applicable.
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
Companay 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
Amended and Restated 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 Registrant'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 CommScope, 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. 001-12929)**/
5.1 -- Opinion of Fried, Frank, Harris, Shriver & Jacobson
23.1 -- Consent of Deloitte & Touche LLP
23.2 -- Consent of Fried, Frank, Harris, Shriver & Jacobson
(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. 001-12929)
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.
SIGNATURES
THE REGISTRANT. 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 Hickory, North
Carolina, on August 13, 1997.
COMMSCOPE, INC.
By: /s/ Frank M. Drendel
-------------------------------
Frank M. Drendel
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 Frank M.
Drendel and Jearld L. Leonhardt, 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/ Frank M. Drendel Chairman and Chief August 13, 1997
--------------------- Executive Officer
Frank M. Drendel (Principal Executive
Officer) and Director
/s/ Jearld L.
Leonhardt Executive Vice President, August 12, 1997
------------------- Finance and
Jearld L. Leonhardt Administration, and
Treasurer (Principal
Financial Officer)
/s/ William R. Gooden
--------------------- Senior Vice President and August 12, 1997
William R. Gooden Controller (Principal
Accounting Officer)
------------------- Director August , 1997
Edward D. Breen
/s/ Nicholas C.
Forstmann Director August 12, 1997
---------------------
Nicholas C. Forstmann
/s/ Boyd L. George Director August 13, 1997
-------------------
Boyd L. George
/s/ George N. Director August 12, 1997
Hutton, Jr.
-------------------
George N. Hutton, Jr.
Director August , 1997
---------------------
James N. Whitson
INDEX TO 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 included in Registrant'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 CommScope, 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. 001-12929)**/
5.1 -- Opinion of Fried, Frank, Harris, Shriver &
Jacobson
23.1 -- Consent of Deloitte & Touche LLP
23.2 -- Consent of Fried, Frank, Harris, Shriver &
Jacobson (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. 001-12929)
Exhibit 5.1
[Fried, Frank, Harris, Shriver & Jacobson Letterhead]
212-859-8076
August 13, 1997 (FAX: 212-859-8587)
CommScope, Inc.
1375 Lenoir-Rhyne Boulevard
Hickory, North Carolina 28601
Ladies and Gentlemen:
We have acted as special counsel for CommScope,
Inc., a Delaware corporation (the "Company"), in connection
with the registration, pursuant to a Registration Statement
on Form S-8 (the "Form S-8"), of 4,349,030 shares (the
"Shares") of Common Stock, par value $.01 per share, of the
Company. The Shares may be issued by the Company under the
CommScope, Inc. 1997 Long-Term Incentive Plan (the "Plan")
upon the exercise or grant of options, stock appreciation
rights, restricted stock, performance units, performance
shares and phantom stock issued under the Plan to employees
of the Company and its subsidiaries and non-employee directors.
With your permission, all assumptions and statements
of reliance herein have been made without any independent
investigation or verification on our part except to the
extent otherwise expressly stated, and we express no
opinion with respect to the subject matter or accuracy
of such assumptions or items relied upon.
In connection with this opinion, we have
(i) investigated such questions of law, (ii) examined
originals or certified, conformed or reproduction copies
of such agreements, instruments, documents and records
of the Company, such certificates of public officials
and such other documents, and (iii) received such
information from officers and representatives of the
Company as we have deemed necessary or appropriate for
the purposes of this opinion. We have examined, among
other documents, the following:
(a) the CommScope, Inc. 1997 Long-Term Incentive Plan;
(b) the Company's Registration Statement on Form S-8;
(c) the Company's Board of Directors' resolutions, dated
June 10, 1997 and July 25, 1997;
(d) the Consent of the Company's Sole Stockholder, dated
July 25, 1997; and
(e) the Company's Amended and Restated Certificate of
Incorporation and By-Laws.
The documents referred to in items (a) through (e) above,
inclusive, are referred to herein collectively as the
"Documents".
In all such examinations, we have assumed the
legal capacity of all natural persons executing
Documents, the genuineness of all signatures, the
authenticity of original and certified documents and the
conformity to original or certified documents of all
copies submitted to us as conformed or reproduction
copies. As to various questions of fact relevant to the
opinions expressed herein, we have relied upon, and
assume the accuracy of, representations and warranties
contained in the Documents and certificates and oral or
written statements and other information of or from
representatives of the Company and others and assume
compliance on the part of all parties to the Documents
with their covenants and agreements contained therein.
Based upon the foregoing and subject to the
limitations, qualifications and assumptions set forth herein, we
are of the opinion that the issuance of the Shares pursuant to
the Plan has been duly authorized and that such Shares, when
issued, paid for and delivered as authorized in accordance with
the Plan, will be validly issued, fully paid and non-assessable.
The opinions expressed herein are limited to
the laws of the United States of America and the General
Corporation Law of the State of Delaware, as currently in
effect. The opinions expressed herein are given as of
the date hereof, and we undertake no obligation to
supplement this letter if any applicable laws change
after the date hereof or if we become aware of any facts
that might change the opinions expressed herein after the
date hereof or for any other reason.
We hereby consent to the filing of this opinion as
an exhibit to the Form S-8 relating to the registration of
the Shares. In giving such consent, we do not hereby admit
that we are in the category of such persons whose consent is
required under Section 7 of the Securities Act of 1933, as
amended.
The opinions expressed herein are solely for
your benefit in connection with the Form S-8 and may not
be relied on in any manner or for any purpose by any
other person or entity.
Very truly yours,
FRIED, FRANK, HARRIS, SHRIVER & JACOBSON
By: /s/ Lois Herzeca
------------------------
Lois Herzeca
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration
Statement of CommScope, Inc. on Form S-8 of our report relating
to CommScope Inc. of North Carolina and subsidiary, dated
February 3, 1997, appearing in the Registration Statement on Form
S-4 (File No. 333-23935) of CommScope, Inc., and to the reference
to us as experts in Part II, Item 3 of this Registration
Statement.
/s/ Deloitte & Touche LLP
August 8, 1997
