AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JANUARY 6, 2000
REGISTRATION NO. 333-88735
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
__________________
POST-EFFECTIVE AMENDMENT NO. 2
ON FORM S-8
TO FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
__________________
MOTOROLA, INC.
(Exact name of Registrant as Specified in its Charter)
DELAWARE 36-1115800
(State or Other Jurisdiction of (I.R.S. Employer Identification No.)
Incorporation or Organization)
1303 EAST ALGONQUIN ROAD
SCHAUMBURG, ILLINOIS 60196
(Address of Principal Executive Offices) (Zip Code)
AMENDED AND RESTATED 1997 LONG-TERM INCENTIVE PLAN
GENERAL INSTRUMENT CORPORATION 1999 LONG-TERM INCENTIVE PLAN
(Full Title of Plans)
__________________
CARL F. KOENEMANN
EXECUTIVE VICE PRESIDENT AND CHIEF FINANCIAL OFFICER
MOTOROLA, INC.
1303 EAST ALGONQUIN ROAD
SCHAUMBURG, ILLINOIS 60196
(Name and Address of Agent for Service)
(847) 576-5000
(Telephone Number, Including Area Code, of Agent for Service)
__________________
Approximate date of commencement of proposed sale to employees: From time
to time after the effective date of this Registration Statement and the
effective time of the merger of General Instrument Corporation with a
wholly-owned subsidiary of Motorola, Inc.
CALCULATION OF REGISTRATION FEE
- --------------------------------------------------------------------------------
TITLE OF EACH AMOUNT TO AMOUNT OF
CLASS OF BE REG- PROPOSED MAXIMUM PROPOSED MAXIMUM REGISTRA-
SECURITIES TO ISTERED OFFERING PRICE AGGREGATE OFFERING TION FEE
BE REGISTERED (2) PER SHARE PRICE (3)
- ------------- --------- ---------------- ------------------ ---------
Common Stock, 5,720,700 N/A N/A $0
$3.00 par value
(and associated
preferred stock
purchase rights)
(1)
- --------------------------------------------------------------------------------
(1) Each share of Motorola common stock is accompanied by a right to purchase
Junior Participating Preferred Stock, Series B of Motorola. Prior to
the occurrence of certain events, none of which have occurred as of this
date, the rights will not be exercisable or evidenced separately from
Motorola common stock.
(2) This Post-Effective Amendment No. 2 on Form S-8 covers 5,720,700 shares
of Motorola common stock and associated preferred share purchase rights
originally registered on the Registration Statement on Form S-4 (File No.
333-88735) filed with the Securities and Exchange Commission on October 7,
1999 to which this Amendment relates.
(3) Motorola previously paid $2,845,227 upon the initial filing of the
Registration Statement to register 122,045,481 shares of Motorola common
stock and associated preferred stock purchase rights issuable to former
stockholders of General Instrument, including 5,720,700 shares of Motorola
common stock and associated preferred stock purchase rights issuable
pursuant to the Amended and Restated 1997 Long-Term Incentive Plan and the
General Instrument Corporation 1999 Long-Term Incentive Plan.
<PAGE>
EXPLANATORY NOTE
Motorola, Inc. ("Motorola" or the "Registrant") hereby amends its
Registration Statement on the Form S-4 (the "Form S-4") by filing this
Post-Effective Amendment No. 2 on Form S-8 to Form S-4 (this "Amendment")
relating to up to 5,720,700 shares of common stock, par value $3.00 per share,
of Motorola ("Motorola Common Stock") and the associated rights (the "Rights")
to purchase Junior Participating Preferred Stock, Series B, par value $100 per
share, issuable by Motorola in connection with the exercise of stock options
that have been granted under the Amended and Restated 1997 Long-Term Incentive
Plan and the General Instrument Corporation 1999 Long-Term Incentive Plan
(collectively, the "Plans") and became options to purchase shares of Motorola
Common Stock as described below. All of such shares of Motorola Common Stock and
the Rights were originally registered pursuant to the Form S-4.
On January 5, 2000, Lucerne Acquisition Corp., a Delaware
corporation and a wholly owned subsidiary of Motorola ("Merger Sub"), merged
(the "Merger") with and into General Instrument Corporation, a Delaware
corporation ("General Instrument"), pursuant to the Agreement and Plan of Merger
(the "Merger Agreement"), dated as of September 14, 1999, among Motorola, Merger
Sub and General Instrument. At the time the Merger was consummated (the
"Effective Time"), among other things, each share of common stock of General
Instrument issued and outstanding immediately prior to the Effective Time was
converted into 0.575 (the "Exchange Ratio") shares of Motorola Common Stock.
Pursuant to the Merger Agreement, the outstanding stock options granted under
the Plans are no longer exercisable for the common stock of General Instrument
but, instead, are exercisable for Motorola Common Stock. Motorola Common Stock
is substituted for common stock of General Instrument under the Plans at the
Exchange Ratio, as set forth in the Merger Agreement.
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
All information required by Part I to be contained in the prospectus
is omitted from this Amendment in accordance with Rule 428 under the Securities
Act of 1933, as amended (the "Securities Act").
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents previously filed by Motorola with the
Securities and Exchange Commission (the "Commission") pursuant to the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), are incorporated herein
by reference:
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(a) Motorola's Annual Report on Form 10-K, as amended, for the fiscal year
ended December 31, 1998.
(b) Motorola's Quarterly Reports on Form 10-Q, as amended, for the quarters
ended April 3, July 3, and October 2, 1999.
(c) Motorola's Current Report on Form 8-K filed September 16, 1999.
(d) The description of Motorola Common Stock contained in Motorola's
Registration Statement on Form 8-B dated July 2, 1973, including any
amendment or report filed with the Commission for the purpose of
updating such description.
(e) The description of the Rights contained in Motorola's Registration
Statement on Form 8-A dated November 5, 1998, including any amendment or
report filed for the purpose of updating such description.
All documents subsequently filed by Motorola pursuant to Sections
13(a), 13(c), 14 or 15(d) of 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 incorporated by reference in this Registration Statement and to be a part
hereof from the date of filing of such documents. Any statement contained herein
or in a document incorporated or deemed to be incorporated by reference herein
shall be deemed to be modified or superseded for purposes of this Registration
Statement to the extent that a statement contained herein or in any subsequently
filed document which also is or is deemed to be incorporated by reference herein
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 of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
The legality of the shares of Motorola Common Stock to be issued in
connection with the Plans was passed upon for Motorola by Donald F. McLellan,
Senior Transactions Counsel of Motorola. As of the date of his opinion letter,
Mr. McLellan owned 174 shares of Motorola Common Stock and held options to
purchase an additional 4,300 shares of Motorola Common Stock (of which 2,600
were vested).
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the Delaware General Corporation Law ("DGCL")
provides that a corporation has the power to indemnify its officers, directors,
employees and agents (or persons serving in such positions in another entity at
the request of the corporation) against the expenses, including attorneys' fees,
judgments, fines or settlement amounts actually and reasonably incurred by them
in connection with the defense of any action by reason of being or having been
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directors or officers, if such person shall have 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 any criminal action, had no reasonable cause
to believe the person's conduct was unlawful), except that, if such action shall
be by or in the right of the corporation, no such indemnification shall be
provided as to any claim, issue or matter as to which such person shall have
been judged to have been liable to the corporation unless and to the extent that
the Court of Chancery of the State of Delaware, or another court in which the
suit was brought, shall determine upon application that, in view of all of the
circumstances of the case, such person is fairly and reasonably entitled to
indemnity.
As permitted by Section 102 of the DGCL, Motorola's Restated
Certificate of Incorporation provides that no director shall be personally
liable to Motorola or its stockholders for monetary damages for any breach of
fiduciary duty as a director, except for liability (i) for breaches of the
director's duty of loyalty to Motorola or its stockholders, (ii) for acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law, (iii) for the unlawful payment of dividends or unlawful stock
purchases or redemptions under Section 174 of the DGCL, or (iv) for any
transaction from which the director derived an improper personal benefit.
Motorola's Restated Certificate of Incorporation further provides
that Motorola must indemnify and hold harmless, to the fullest extent authorized
by the DGCL, as the same exists or may be hereafter amended (but, in the case of
any such amendment, only to the extent that the amendment permits Motorola to
provide broader indemnification rights than the DGCL permitted Motorola to
provide prior to such amendment), each person who was or is made a party or is
threatened to be made a party to or is involved in any action, suit or
proceeding, whether civil, criminal, administrative or investigative, by reason
of the fact that he or she, or a person of whom he or she is the legal
representative, is or was a director or officer of Motorola or is or was serving
(at such time as such person is or was a director or officer of Motorola) at the
request of Motorola as a director, officer, employee or agent of another entity,
including service with respect to employee benefit plans, whether the basis of
such proceeding is alleged action in an official capacity as a director,
officer, employee or agent or in any other capacity while serving as a director,
officer, employee or agent, against all expense, liability and loss reasonably
incurred or suffered by such indemnitee in connection therewith. This right to
indemnification will continue as to an indemnitee who has ceased to be a
director, officer, employee or agent and will inure to the benefit of the
indemnitee's heirs, executors and administrators. However, except as provided
below with respect to proceedings to enforce rights to indemnification, Motorola
will indemnify any such indemnitee in connection with a proceeding (or part
thereof) initiated by that indemnitee only if the proceeding was authorized by
Motorola's Board of Directors.
The Restated Certificate of Incorporation provides that the right to
indemnification is a contract right and includes the right to be paid by
Motorola the expenses incurred in defending any such proceeding in advance of
its final disposition. However, if and to the extent that the DGCL requires, an
advancement of expenses incurred by an indemnitee in his or her capacity as a
director or officer (and not in any other capacity in which service was or is
rendered by such indemnitee, including, without limitation, service to an
employee benefit plan)
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will be made only upon delivery to Motorola of an undertaking, by or on behalf
of such indemnitee, to repay all amounts so advanced if it shall ultimately be
determined by final judicial decision that such indemnitee is not entitled to be
indemnified for such expenses. Motorola's Restated Certificate of Incorporation
also provides that Motorola may, by action of Motorola's Board of Directors or
by action of any person to whom Motorola's Board of Directors has delegated such
authority, provide indemnification to employees and agents of Motorola with the
same scope and effect as the indemnification of Motorola's officers and
directors. The rights to indemnification and to the advancement of expenses
conferred in the Restated Certificate of Incorporation will not be exclusive of
any other right which any person may have or hereafter acquire under the
Restated Certificate of Incorporation, by-law, agreement, vote of stockholders
or disinterested directors or otherwise.
Section 145 of the DGCL also provides that a corporation has the
power to purchase and maintain insurance on behalf of any person who is or was a
director, officer, employee or agent of the corporation (or who was serving at
the request of the corporation in such position at another entity) against any
liability asserted against such person and incurred by such person in any such
capacity, or arising out of such person's status as such, whether or not the
corporation would have the power to indemnify such person against such liability
under the DGCL. The Restated Certificate of Incorporation provides that Motorola
may maintain insurance, at its own expense, to protect itself and any director,
officer, employee or agent of Motorola or another corporation, partnership,
joint venture, trust or other enterprise against any expense, liability or loss,
whether or not Motorola would have the power to indemnify such person against
such expense, liability or loss under the DGCL. All of the directors and
officers of Motorola are covered by insurance policies maintained and held in
effect by Motorola against liabilities for actions taken in such capacities,
including liabilities under the Securities Act, subject to certain exclusions.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable.
ITEM 8. EXHIBITS
See Exhibit Index.
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;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of this Registration Statement (or the most recent
post-effective amendment
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hereof) which, individually or in the aggregate, represent a
fundamental change in the information set forth in this Registration
Statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in this Registration
Statement or any material change to such information in this
Registration Statement;
provided, however, that paragraphs (1)(i) and (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
Securities and Exchange Commission by the Registrant pursuant to Section
13 or Section 15(d) of the Exchange Act that are incorporated by reference
in this Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, 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 any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or 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.
(c) 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 foregoing provisions, or otherwise,
the Registrant 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
Registrant of expenses incurred or paid by a director, officer or controlling
person of 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 Securities Act and will be governed by the
final adjudication of such issue.
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SIGNATURES
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 Amendment to
be signed on its behalf by the undersigned, thereunto duly authorized, in the
City of Schaumburg, State of Illinois, on this 6th day of January, 2000.
MOTOROLA, INC.
By:/s/ Carl F. Koenemann
-----------------------------------
Name: Carl F. Koenemann
Title: Executive Vice President and
Chief Financial Officer
Pursuant to the requirements of the Securities Act of 1933, this
Amendment has been signed by the following persons in the capacities indicated
on January 6, 2000.
SIGNATURE TITLE
PRINCIPAL EXECUTIVE OFFICER:
Chairman of the Board and Chief
* Executive Officer
- -----------------------------------
Christopher B. Galvin
PRINCIPAL FINANCIAL OFFICER:
Executive Vice President and
/s/ Carl F. Koenemann Chief Financial Officer
- -----------------------------------
Carl F. Koenemann
PRINCIPAL ACCOUNTING OFFICER:
* Senior Vice President and
- ----------------------------------- Controller
Anthony M. Knapp
DIRECTORS:
* Director
- -----------------------------------
Ronnie C. Chan
* Director
- -----------------------------------
H. Laurance Fuller
* Director
- -----------------------------------
Robert W. Galvin
<PAGE>
SIGNATURE TITLE
* Director
- -----------------------------------
Robert L. Growney
* Director
- -----------------------------------
Anne P. Jones
* Director
- -----------------------------------
Donald R. Jones
Director
- -----------------------------------
Judy C. Lewent
* Director
- -----------------------------------
Dr. Walter E. Massey
* Director
- -----------------------------------
Nicholas Negroponte
* Director
- -----------------------------------
John E. Pepper, Jr.
* Director
- -----------------------------------
Samuel C. Scott III
* Director
- -----------------------------------
Gary L. Tooker
* Director
- -----------------------------------
B. Kenneth West
* Director
- -----------------------------------
Dr. John A. White
* By: /s/ Carl F. Koenemann
------------------------------
Carl F. Koenemann
Attorney-in-Fact
<PAGE>
EXHIBIT INDEX
EXHIBIT DESCRIPTION
NUMBER
------ -----------
4.1 Restated Certificate of Incorporation, as amended (incorporated by
reference to Exhibit 3(i)(b) to the Registrant's Quarterly Report
on Form 10-Q for the quarter ended April 2, 1994 (File No.
1-7221)).
4.2 Certificate of Designations, Preferences and Rights of Junior
Participating Preferred Stock, Series B (incorporated by reference
to Exhibit 3.3 to the Registrant's Registration Statement on Form
S-3 dated January 20, 1999 (Registration No. 333-70827)).
4.3 By-laws, as amended through February 17, 1999 (incorporated by
reference to Exhibit 3.3 to the Registrant's Annual Report on Form
10-K for the fiscal year ended December 31, 1998 (File No.
1-7221)).
4.4 Rights Agreement, dated as of November 5, 1998 between the
Registrant and Harris Trust and Savings Bank, as Rights Agent
(incorporated by reference to Exhibit 1.1 to the Registrant's
Amendment No. 1 to Registration Statement on Form 8-A/A dated March
16, 1999 (File No. 1-7221)).
5.1 Opinion of Donald F. McLellan, Esq., Senior Transactions Counsel of
the Registrant, as to the legality of the shares to be issued.*
23.1 Consent of KPMG.
23.2 Consent of Donald F. McLellan, Esq., Senior Transactions Counsel
of the Registrant (included in Exhibit 5.1).*
24.1 Power of Attorney.*
99.1 Amended and Restated 1997 Long-Term Incentive Plan (incorporated by
reference to Annex A to General Instrument's Proxy Statement filed
on April 8, 1998 (SEC File No. 001-12925)).
99.2 General Instrument Corporation 1999 Long-Term Incentive Plan
(incorporated by reference to Annex A to General Instrument's Proxy
Statement filed on April 14, 1999 (SEC File No. 001-12925)).
* Previously filed on October 8, 1999
EXHIBIT 23.1
[LETTERHEAD OF KPMG LLP]
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors
Motorola, Inc.:
We consent to incorporation by reference in Post-Effective
Amendment No. 2 on Form S-8 to the registration statement on Form S-4 of
Motorola, Inc. of our reports dated January 13, 1999, except as to Note 8,
which is as of March 1, 1999, relating to the consolidated balance sheets of
Motorola, Inc. and subsidiaries as of December 31, 1998 and 1997, and the
related consolidated statements of operations, stockholders' equity, and cash
flows and related financial statement schedule for each of the years in the
three-year period ended December 31, 1998, which reports appear in or are
incorporated by reference in the annual report on Form 10-K/A of Motorola,
Inc. for the year ended December 31, 1998.
/s/ KPMG LLP
Chicago, Illinois
January 5, 2000
