As filed with the Securities and Exchange Commission on June 19, 1998
Registration No. 333-______
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
ANDREW CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 36-2092797
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
10500 West 153rd Street
Orland Park, Illinois 60462
Telephone: (708) 349-3300
(Address, including zip code, telephone number, including area code, of
registrant's principal executive offices)
ANDREW PROFIT SHARING TRUST
(Full title of the plan)
Charles R. Nicholas
Executive Vice President-Administration and Chief Financial Officer
Andrew Corporation
10500 West 153rd Street
Orland Park, Illinois 60462
Telephone: (708) 349-3300
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
Copies to:
Dewey B. Crawford, Esq.
Gardner, Carton & Douglas
321 North Clark Street, Suite 3200
Chicago, Illinois 60610
<TABLE>
CALCULATION OF REGISTRATION FEE
<CAPTION>
Title of Securities Amount to be Proposed Maximum Proposed Maximum Amount of
to be Registered Registered (1) Offering Price Per Share Aggregate Offering Price Registration Fee
- ---------------- -------------- ------------------- ------------------- ------------
<S> <C> <C> <C> <C>
Common Stock, par value 5,000,000 18.375 91,875,000 27,103.13
$0.01 per share (2)(3)
</TABLE>
(1) Together with an indeterminable number of additional securities in order to
adjust the number of securities reserved for issuance pursuant to the plan
as the result of a stock split, stock dividend or similar transaction
affecting the Common Stock, pursuant to 17 C.F.R. ss. 230.416.
(2) Estimated in accordance with Rule 457(c) and (h)(1), the proposed maximum
offering price per share, proposed maximum aggregate offering price and the
amount of the registration fee are based upon the average of the high and
low prices reported on the Nasdaq National Market on June 18, 1998.
(3) Pursuant to Rule 416(c), the Registration Statement also covers an
indeterminate amount of plan interests to be offered and sold pursuant to
the Andrew Profit Sharing Trust
<PAGE>
ANDREW CORPORATION
REGISTRATION STATEMENT ON FORM S-8
PART II
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
There are hereby incorporated by reference in to this Registration
Statement the following documents and information heretofore filed with the
Securities and Exchange Commission (the "Commission") by the Registrant:
1. The Registrant's Annual Report on Form 10-K for the fiscal year
ended September 30, 1997;
2. The Registrant's Quarterly Reports on Form 10-Q for the three
months ended December 31, 1997 and March 31, 1998; and
3. The description of Registrant's Common Stock contained in
Exhibit 99(a) to the Registrant's Annual Report on Form 10-K
for the fiscal year ended September 30, 1997.
In addition, each document filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act after the date hereof, and prior
to the filing of a post-effective amendment which indicates that all securities
offered hereunder have been sold or which deregisters all securities then
remaining unsold under this registration statement, shall be deemed to be
incorporated by reference herein and to be part hereof from the date of filing
of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Dewey B. Crawford, who is a partner of Gardner, Carton & Douglas, which
is delivering the opinion filed as Exhibit 5.1 to this Registration Statement,
beneficially owned 35,000 shares of the Company's Common Stock as of
June 19, 1998.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law ("DGCL") generally
permits a Delaware corporation to indemnify officers, directors, employees or
agents of the corporation if they are, or are threatened to be made, parties to
any threatened, pending or completed action, suit or proceeding by reason of the
fact that such person was an officer, director, employee or agent of the
corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation or enterprise. The
Registrant's Certificate of Incorporation provides that the Registrant shall,
subject to certain limitations, indemnify its directors and officers against
expenses (including attorneys' fees, judgments, fines and certain settlements)
actually and reasonably incurred by them in connection with any suit or
proceeding to which they are a party so long as they acted in good faith and in
a manner reasonably believed to be in or not opposed to the best interests of
the corporation, and, with respect to a criminal action or proceeding, so long
as they had no reasonable cause to believe their conduct to have been unlawful.
<PAGE>
Section 102 of the DGCL permits a Delaware corporation to include in
its certificate of incorporation a provision eliminating or limiting a
director's liability to a corporation or its stockholders for monetary damages
for breaches of fiduciary duty. DGCL Section 102 provides, however, that
liability for breaches of the duty of loyalty, acts or omissions not in good
faith or involving intentional misconduct, or knowing violation of the law, and
the unlawful purchase or redemption of stock or payment of unlawful dividends or
the receipt of improper personal benefits cannot be eliminated or limited in
this manner. The Registrant's Certificate of Incorporation includes a
provision that eliminates, to the fullest extent permitted, director liability
for monetary damages for breaches of fiduciary duty.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. INDEX TO EXHIBITS.
<TABLE>
<CAPTION>
Exhibit Number Description of Document
-------------- -----------------------
<S> <C>
4.1 Shareholder Rights Agreement dated November 14,
1996 between Andrew Corporation and Harris Trust
and Savings Bank, as Rights Agent, relating to
Rights to purchase Common Stock under certain
circumstances, incorporated herein by reference
from the Registrant's Registration Statement on
Form 8-A filed with the Commission on November 26,
1996
5.1 Opinion of Gardner, Carton & Douglas regarding
legality of securities
23.1 Consent of Ernst & Young LLP
23.2 Consent of Gardner, Carton & Douglas (included in
exhibit 5.1)
24.1 Powers of Attorney (included on signature page)
</TABLE>
<PAGE>
ITEM 9. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) To file during any period in which offers or sales are
being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3)
of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change
in the information set forth in the registration statement;
(iii) 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;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do
not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic
reports filed with or furnished to the Commission by the Registrant
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act
of 1934 that are incorporated by reference in this registration
statement.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective amendment 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.
(3) 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.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in this
registration statement shall be deemed to be a new registration statement
relating to the securities offering herein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the provisions described in Item 6 of this
registration statement, or otherwise, the Registrant has been advised that in
the opinion of the Commission such indemnification is against public policy as
expressed in the 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, 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 whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
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 the City of Orland Park, State of Illinois, on this 19th day
of June 1998.
ANDREW CORPORATION
By:/s/Floyd L. English
---------------------------------
Floyd L. English
Chairman, President and
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Floyd L. English, Charles R. Nicholas or
Gregory F. Maruszak, and each of them, his true and lawful attorneys-in-fact and
agents, with full power of substitution and resubstitution for him and in his
name, place and stead, in any and all capacities, to sign, execute and file this
Registration Statement and any or all amendments (including, without limitation,
post-effective amendments) to this Registration Statement, and to file the same,
with all exhibits thereto and all documents required to be filed with respect
therewith, with the Securities and Exchange Commission or any regulatory
authority, granting unto such 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 connection therewith and about the premises in order to effectuate
the same as fully to all intents and purposes as he might or could do if
personally present, hereby ratifying and confirming all that such
attorneys-in-fact and agents or his or their substitute or substitutes, may
lawfully do or cause to be done.
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 indicated on this 19th day of June 1998.
/s/Floyd L. English /s/Charles R. Nicholas
- ------------------------------------- ----------------------------------------
Floyd L. English Charles R. Nicholas
Chairman, President and Executive Vice President
Chief Executive Officer and Chief Financial Officer
Director (Principal Financial Officer)
(Principal Executive Officer)
/s/Gregory F. Maruszak /s/John G. Bollinger
- ------------------------------------- ----------------------------------------
Gregory F. Maruszak John G. Bollinger
Vice President, Finance Director
(Principal Accounting Officer)
/s/Jon L. Boyes /s/Kenneth J. Douglas
- ------------------------------------- ----------------------------------------
Jon L. Boyes Kenneth J. Douglas
Director Director
/s/Jere D. Fluno /s/Ormand J. Wade
- ------------------------------------- ----------------------------------------
Jere D. Fluno Ormand J. Wade
Director Director
<PAGE>
THE PLAN. Pursuant to the requirements of the Securities Act of 1933,
as amended, the Plan has duly caused this Registration Statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in the City of Orland
Park, State of Illinois, on this 19th day of June 1998.
ANDREW PROFIT SHARING TRUST
By:/s/Charles R. Nicholas
----------------------------------
Charles R. Nicholas
President of Andrew
Profit Sharing Trust
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit Number Description of Document
- -------------- -----------------------
<S> <C>
4.1 Shareholder Rights Agreement dated November 14, 1996 between
Andrew Corporation and Harris Trust and Savings Bank, as
Rights Agent, relating to Rights to purchase Common Stock
under certain circumstances, incorporated herein by reference
from the Registrant's Registration Statement on Form 8-A
filed with the Commission on November 26, 1996
5.1 Opinion of Gardner, Carton & Douglas regarding legality of
securities
23.1 Consent of Ernst & Young LLP
23.2 Consent of Gardner, Carton & Douglas (included in
exhibit 5.1)
24.1 Powers of Attorney (included on signature page)
</TABLE>
EXHIBIT 5.1
Gardner, Carton & Douglas
321 North Clark Street, Suite 3400
Chicago, Illinois 60610
June 19, 1998
Andrew Corporation
10500 West 153rd Street
Orland Park, Illinois 60462
Re: Registration Statement on Form S-8
----------------------------------
Ladies and Gentlemen:
We have acted as counsel to Andrew Corporation, a Delaware corporation
(the "Corporation"), in connection with the filing of a Registration Statement
on Form S-8 by the Corporation under the Securities Act of 1933, as amended (the
"Registration Statement"), which Registration Statement registers 5,000,000
shares of Common Stock, par value $0.01 per share (the "Common Stock"), reserved
for issuance under the Andrew Profit Sharing Trust (the "Plan"). In that
capacity, we have reviewed the Certificate of Incorporation and By-laws of the
Corporation, both as amended to date, the Registration Statement, the Plan, the
originals or copies of corporate records reflecting the corporate action taken
by the Corporation in connection with the approval of the Plan and the issuance
of the Common Stock under the Plan and such other instruments as we have deemed
necessary for the issuance of this opinion.
Based upon the foregoing, we are of the opinion that the Common Stock
to be offered under the Plan has been duly authorized by all requisite action on
the part of the Corporation and, when issued in accordance with the terms and
conditions of the Plan, will be legally issued, fully paid and non-assessable.
We consent to the filing of this opinion as an exhibit to the
Registration Statement. In giving this consent, we do not admit that we are
within the category of persons whose consent is required by Section 7 of the
Securities Act of 1933, as amended.
Very truly yours,
/s/ GARDNER, CARTON & DOUGLAS
-----------------------------
GARDNER, CARTON & DOUGLAS
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement
(Form S-8) pertaining to the Andrew Profit Sharing Trust of our report dated
October 24, 1997, with respect to the consolidated financial statements of
Andrew Corporation incorporated by reference in its Annual Report (Form 10K)
for the year ended September 30, 1997, filed with the Securities and Exchange
Commission.
/s/Ernst & Young, LLP
Chicago, Illinois
June 19, 1998
