<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON NOVEMBER 10, 1999.
REGISTRATION NO. 333-85999
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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POST-EFFECTIVE
AMENDMENT NO. 1
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
NEXT LEVEL COMMUNICATIONS, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
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DELAWARE 3674 94-3342408
(STATE OR OTHER JURISDICTION OF (PRIMARY STANDARD INDUSTRIAL (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) CLASSIFICATION CODE NUMBER) IDENTIFICATION NUMBER)
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6085 STATE FARM DRIVE
ROHNERT PARK, CALIFORNIA 94928
(707) 584-6820
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
JAMES T. WANDREY
SENIOR VICE PRESIDENT AND CHIEF FINANCIAL OFFICER
NEXT LEVEL COMMUNICATIONS, INC.
6085 STATE FARM DRIVE
ROHNERT PARK, CALIFORNIA 94928
(707) 584-6820
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
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COPIES TO:
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JAY K. HACHIGIAN, ESQ. RAYMOND W. WAGNER, ESQ. VINCENT J. PISANO, ESQ.
GUNDERSON DETTMER STOUGH SIMPSON THACHER & BARTLETT SKADDEN, ARPS, SLATE,
VILLENEUVE FRANKLIN & HACHIGIAN, 425 LEXINGTON AVENUE MEAGHER & FLOM LLP
LLP NEW YORK, NEW YORK 10017 919 THIRD AVENUE
155 CONSTITUTION DRIVE (212) 455-2000 NEW YORK, NEW YORK 10022
MENLO PARK, CALIFORNIA 94025 (212) 735-3000
(650) 321-2400
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
As soon as practicable after the effective date of this Registration Statement.
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, as amended, check the following box. [ ]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [X] 333-85999
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
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EXPLANATORY NOTE
This Post-Effective Amendment No. 1 to the Form S-1 Registration Statement
is being filed for the sole purpose of filing exhibits.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 13. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the costs and expenses, other than
underwriting discounts and commissions, payable by the Company in connection
with the sale of Common Stock being registered. All amounts are estimates except
the SEC registration fee and the NASD filing fees.
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SEC Registration fee....................................... $ 34,750
NASD fee................................................... 13,000
Nasdaq National Market listing fee......................... 95,000
Printing and engraving expenses............................ 400,000
Legal fees and expenses.................................... 1,600,000
Accounting fees and expenses............................... 500,000
Blue sky fees and expenses................................. 5,000
Transfer agent fees........................................ 15,000
Miscellaneous fees and expenses............................ 137,250
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Total............................................ $2,800,000
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ITEM 14. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the Delaware General Corporation Law authorizes a court to
award or a corporation's Board of Directors to grant indemnification to
directors and officers in terms sufficiently broad to permit such
indemnification under certain circumstances for liabilities (including
reimbursement for expenses incurred) arising under the Securities Act of 1933,
as amended (the "Securities Act"). The Registrant's Certificate of Incorporation
provides for mandatory indemnification of its directors and officers and
permissible indemnification of employees and other agents to the maximum extent
permitted by the Delaware General Corporation Law. The Registrant's Certificate
of Incorporation provides that, pursuant to Delaware law, its directors shall
not be liable for monetary damages for breach of the directors' fiduciary duty
as directors to the Company and its stockholders. This provision in the
Certificate of Incorporation does not eliminate the directors' fiduciary duty,
and in appropriate circumstances equitable remedies such as injunctive or other
forms of non-monetary relief will remain available under Delaware law. In
addition, each director will continue to be subject to liability for breach of
the director's duty of loyalty to the Company for acts or omissions not in good
faith or involving intentional misconduct, for knowing violations of law, for
actions leading to improper personal benefit to the director, and for payment of
dividends or approval of stock repurchases or redemptions that are unlawful
under Delaware law. The provision also does not affect a director's
responsibilities under any other law, such as the federal securities laws or
state or federal environmental laws. The Registrant has entered into
Indemnification Agreements with its officers and directors, a form of which is
attached as Exhibit 10.1 hereto and incorporated herein by reference. The
Indemnification Agreements provide the Registrant's officers and directors with
further indemnification to the maximum extent permitted by the Delaware General
Corporation Law." Reference is made to Section 6 of the Underwriting
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Agreement contained in Exhibit 1.1 hereto, indemnifying officers and directors
of the Registrant against certain liabilities.
ITEM 15. RECENT SALES OF UNREGISTERED SECURITIES
Within the last three years, a predecessor to the Registrant sold
securities in the following transactions, each of which was intended to be
exempt from the registration requirements of the Securities Act of 1933, as
amended.
In January 1998, Next Level Communications, a subsidiary of General
Instrument, acquired an 89% limited partner interest in Next Level
Communications L.P. (the "Partnership") in exchange for the net assets,
management and workforce of Next Level Communications.
In January 1998, General Instrument advanced $75.0 million to the
Partnership in exchange for a note convertible by the partnership into shares.
The Partnership used these funds for general working capital.
From November 1998 through May 1999, Next Level Communications has provided
an additional $50.0 million of capital contribution in return for an increase in
its partnership interest from 89% to 90.4%. The Partnership used these funds for
general working capital.
The sale of the above securities was deemed to be exempt from registration
under the Act in reliance upon Section 4(2) of the Act as transactions by an
issuer not involving any public offering. The recipients of securities in each
such transaction represented their intentions to acquire the securities for
investment only and not with a view to or for sale in connection with any
distribution thereof and appropriate legends were affixed to the securities used
in such transactions. All recipients had adequate access, through their
relationships with the Registrant, to information about the Registrant.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
(a) EXHIBITS
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EXHIBIT
NUMBER DESCRIPTION
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1.1** -- Form of Underwriting Agreement (preliminary form).
2.1** -- Form of Merger Agreement among General Instrument
Corporation, Spencer Trask Investors LLC, Next Level
Communications, Next Level Communications L.P. and
Registrant.
3.1** -- Form of Restated Certificate of Incorporation to be filed
upon the closing of this offering.
3.2** -- Bylaws of the Registrant.
4.1 -- Reference is made to Exhibits 3.1 and 3.2
4.2** -- Form of Registration Rights Agreement among General
Instrument Corporation, Spencer Trask Investors LLC and
Registrant.
4.3** -- Specimen Common Stock certificate.
5.1** -- Opinion of Gunderson Dettmer Stough Villeneuve Franklin &
Hachigian, LLP.
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II-2
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EXHIBIT
NUMBER DESCRIPTION
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9.1** -- Form of Voting Trust Agreement among General Instrument
Corporation, Registrant and Chase Mellon Shareholder
Services LLC.
10.1** -- Form of Indemnification Agreement.
10.2** -- Form of Corporate and Intercompany Agreement between General
Instrument Corporation and Registrant.
10.3** -- 1999 Equity Incentive Plan.
10.4** -- 1999 Employee Stock Purchase Plan.
10.5** -- Patent and Technical Information Cross-License Agreement.
10.8+** -- Agreement between U S WEST Communications, Inc. and the
Registrant.
10.9+** -- Agreement by and among Telesector Resources Group, Inc.,
General Instrument Corporation and the Registrant.
10.10+** -- Agreement between the Registrant and SCI Technology, Inc.
10.11+** -- Agreement between the Registrant and CMC Mississippi, Inc.
10.12** -- 1999 Stock Plan.
10.13** -- Form of Warrant.
23.1*** -- Independent Auditors' Consent.
23.2** -- Consent of Counsel. Reference is made to Exhibit 5.1.
24.1** -- Power of Attorney (see page II-5).
27.1** -- Financial Data Schedule.
99.1** -- Consent of Lynn Forester filed pursuant to Rule 438 under
the Securities Act.
99.2** -- Consent of John McCartney filed pursuant to Rule 438 under
the Securities Act.
99.3** -- Consent of Paul S. Latchford filed pursuant to Rule 438
under the Securities Act.
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* To be supplied by amendment.
** Previously filed.
*** Filed herewith.
+ Confidential treatment has been requested for certain portions which have
been blacked out in the copy of the exhibit filed with the Securities and
Exchange Commission. The omitted information has been filed separately with
the Securities and Exchange Commission pursuant to the application for
confidential treatment.
(b) FINANCIAL STATEMENT SCHEDULES
Schedules have been omitted because the information required to be set
forth therein is not applicable or is shown in the financial statements or
notes.
ITEM 17. UNDERTAKINGS
The Registrant hereby undertakes to provide to the Underwriters at the
closing specified in the Underwriting Agreement, certificates in such
denominations and registered in such names as required by the Underwriters to
permit prompt delivery to each purchaser.
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Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the Delaware General Corporation Law, the Certificate of
Incorporation or the Bylaws of the Registrant, the Underwriting Agreement, or
otherwise, the Registrant has been advised that in the opinion of the Securities
and Exchange 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 Registrant of expenses incurred or paid by a director, officer,
or controlling person of the Registrant 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 hereunder, the Registrant
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 of 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.
The Registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities
Act, the information omitted from the form of prospectus filed as part of
this Registration Statement in reliance upon Rule 430A and contained in a
form of prospectus filed by the Registrant pursuant to Rule 424(b)(1) or
(4) or 497(h) under the Securities Act shall be deemed to be part of this
Registration Statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities
Act, each post-effective amendment that contains a form of prospectus 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.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
registrant has duly caused this Post-Effective Amendment No. 1 to the
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Rohnert Park, State of California, on this 10th
day of November, 1999.
NEXT LEVEL COMMUNICATIONS, INC.
By: /s/ JAMES T. WANDREY*
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James T. Wandrey
Senior Vice President
and Chief Financial Officer
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS AMENDED,
THIS REGISTRATION STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE
CAPACITIES AND ON THE DATES INDICATED:
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/s/ PETER W. KEELER* Chief Executive Officer, November 10, 1999
- ------------------------------------------ (Principal Executive
Peter W. Keeler Officer) Chairman of the
Board
and President
/s/ JAMES T. WANDREY Senior Vice President and November 10, 1999
- ------------------------------------------ Chief Financial Officer
James T. Wandrey (Principal Financial and
Accounting Officer)
/s/ RICHARD C. SMITH* Director November 10, 1999
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Richard C. Smith
/s/ LYNN FORESTER* Director November 10, 1999
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Lynn Forester
/s/ JOHN MCCARTNEY* Director November 10, 1999
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John McCartney
/s/ PAUL S. LATCHFORD* Director November 10, 1999
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Paul S. Latchford
*By: /s/ JAMES T. WANDREY
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James T. Wandrey
Attorney-in-fact
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EXHIBIT INDEX
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EXHIBIT
NUMBER DESCRIPTION
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1.1** -- Form of Underwriting Agreement (preliminary form).
2.1** -- Form of Merger Agreement among General Instrument
Corporation, Spencer Trask Investors LLC, Next Level
Communications, Next Level Communications L.P. and
Registrant.
3.1** -- Form of Restated Certificate of Incorporation to be filed
upon the closing of this offering.
3.2** -- Bylaws of the Registrant.
4.1 -- Reference is made to Exhibits 3.1 and 3.2.
4.2** -- Form of Registration Rights Agreement among General
Instrument Corporation, Spencer Trask Investors LLC and
Registrant.
4.3** -- Specimen Common Stock certificate.
5.1** -- Opinion of Gunderson Dettmer Stough Villeneuve Franklin &
Hachigian, LLP.
9.1** -- Form of Voting Trust Agreement among General Instrument
Corporation, Registrant and Chase Mellon Shareholder
Services LLC.
10.1** -- Form of Indemnification Agreement.
10.2** -- Form of Corporate and Intercompany Agreement between General
Instrument Corporation and Registrant.
10.3** -- 1999 Equity Incentive Plan.
10.4** -- 1999 Employee Stock Purchase Plan.
10.5** -- Patent and Technical Information Cross-License Agreement.
10.8+** -- Agreement between U S WEST Communications, Inc. and the
Registrant.
10.9+** -- Agreement by and among Telesector Resources Group, Inc.,
General Instrument Corporation and the Registrant.
10.10+** -- Agreement between the Registrant and SCI Technology, Inc.
10.11+** -- Agreement between the Registrant and CMC Mississippi, Inc.
10.12** -- 1999 Stock Plan.
10.13** -- Form of Warrant.
23.1*** -- Independent Auditors' Consent.
23.2** -- Consent of Counsel. Reference is made to Exhibit 5.1.
24.1** -- Power of Attorney (see page II-5).
27.1** -- Financial Data Schedule.
99.1** -- Consent of Lynn Forester filed pursuant to Rule 438 under
the Securities Act.
99.2** -- Consent of John McCartney filed pursuant to Rule 438 under
the Securities Act.
99.3** -- Consent of Paul S. Latchford filed pursuant to Rule 438
under the Securities Act.
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* To be supplied by amendment.
** Previously filed.
*** Filed herewith.
+ Confidential treatment has been requested for certain portions which have
been blacked out in the copy of the exhibit filed with the Securities and
Exchange Commission. The omitted information has been filed separately with
the Securities and Exchange Commission pursuant to the application for
confidential treatment.
<PAGE> 1
Exhibit 23.1
Independent Auditors' Consent
We consent to the use in this Post-Effective Amendment No. 1 to Registration
Statement No. 333-85999 of Next Level Communications, Inc. on Form S-1 of our
reports dated October 15, 1999 (which report expresses an unqualified opinion
and includes an explanatory paragraph relating to additional funding
requirements) relating to the financial statements of Next Level Communications
L.P. and August 25, 1999 (November 9, 1999 as to Notes 2 and 3), relating to the
balance sheet of Next Level Communications, Inc. appearing in the Prospectus,
which is part of this Registration Statement. We also consent to the reference
to us under the headings "Selected Financial Data" and "Experts" in such
Prospectus.
/s/Deloitte & Touche LLP
Deloitte & Touche LLP
San Francisco, California
November 9, 1999
