AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 21, 2004
REGISTRATION 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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COMMSCOPE, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 36-4135495
(State or other (I.R.S. Employer
jurisdiction of Identification Number)
incorporation or
organization)
1100 COMMSCOPE PLACE, S.E.
P.O. BOX 339
HICKORY, NORTH CAROLINA
28602
(Address of registrant's principal executive
offices, including zip code)
AMENDED AND RESTATED COMMSCOPE, INC.
1997 LONG-TERM INCENTIVE PLAN
(Full title of the plan)
FRANK B. WYATT II, ESQ.
SENIOR VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY
1100 COMMSCOPE PLACE, S.E., P.O. BOX 339
HICKORY, NORTH CAROLINA 28602
(828) 324-2200
(Name, address, and telephone number of agent for service)
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CALCULATION OF REGISTRATION FEE
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PROPOSED PROPOSED
TITLE OF SECURITIES AMOUNT MAXIMUM MAXIMUM AMOUNT OF
TO BE REGISTERED TO BE OFFERING AGGREGATE REGISTRATION
REGISTERED PRICE PER OFFERING FEE
(1) SHARE PRICE
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Common Stock, par value 1,500,000 $17.15 (2) $25,725,000 $3,259.36
$.01 per share (the shares (2)
"Common Stock")
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(1) Includes an indeterminate number of shares of Common Stock that may be
issuable by reason of stock splits, stock dividends or similar
transactions in accordance with Rule 416 under the Securities Act of
1933, as amended (the "Securities Act").
(2) Estimated solely for the purpose of determining the registration fee
pursuant to Rule 457(h) of the Securities Act based on the average of
the high and low sales prices for the Common Stock as reported by the
New York Stock Exchange on June 14, 2004, a date within five business
days prior to the date on which this registration statement is being
filed.
EXPLANATORY NOTE
This Registration Statement is filed pursuant to Instruction E to Form
S-8 to register 1,500,000 additional shares of Common Stock issuable under
the Amended and Restated 1997 Long-Term Incentive Plan of CommScope, Inc.
(the "Registrant").
INCORPORATION OF CONTENTS OF
REGISTRATION STATEMENTS BY REFERENCE
Pursuant to Instruction E to Form S-8, the Registrant hereby
incorporates by reference into this Registration Statement the contents of
the Registrant's Registration Statement on Form S-8 (File No. 333-33555),
the Registrant's Registration Statement on Form S-8 (File No. 333-54017),
the Registrant's Registration Statement on Form S-8 (File No. 333-39072),
the Registrant's Registration Statement on Form S-8 (File No. 333-90186)
and any post-effective amendments thereto.
OTHER INFORMATION REQUIRED IN THIS REGISTRATION STATEMENT
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the Delaware General Corporation Law (the "DGCL")
provides that a corporation may indemnify its directors and officers, as
well as other employees and individuals (each an "Indemnified Party," and
collectively, "Indemnified Parties"), 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 in connection with
actions by or in the right of the corporation (a "derivative action"), if
an Indemnified Party acted in good faith and in a manner such Indemnified
Party 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 that his or her conduct was unlawful. A
similar standard is applicable in the case of derivative actions, except
that a corporation may only indemnify an Indemnified Party for expenses
(including attorneys' fees) incurred in connection with the defense or
settlement of such derivative action. Additionally, in the context of a
derivative action, DGCL Section 145 requires court approval before there
can be any indemnification where an Indemnified Party has been found liable
to the corporation. The statute provides that it is not exclusive of other
indemnification arrangements that may be granted pursuant to 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) any willful or
negligent declaration of an unlawful dividend, stock purchase or
redemption, or (iv) any transaction from which the director derived an
improper personal benefit.
The Certificate of Incorporation and By-Laws of the Registrant provide
that directors and officers of the Registrant shall not, to the fullest
extent permitted by the DGCL, be liable to the Registrant or any of its
stockholders for monetary damages for any breach of fiduciary duty as a
director or officer, as the case may be. The Certificate of Incorporation
and By-Laws of the Registrant also provide that if the DGCL is amended to
permit further elimination or limitation of the personal liability of
directors and officers, then the liability of the directors and officers of
the Registrant shall be eliminated or limited to the fullest extent
permitted by the DGCL, as so amended.
The Registrant has entered into agreements to indemnify its directors
and officers in addition to the indemnification provided for in its
Certificate of Incorporation and By-Laws. These agreements, among other
things, indemnify the Registrant's directors and officers to the fullest
extent permitted by Delaware or other applicable state 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 Registrant or an
affiliate of the Registrant.
The Registrant maintains directors' and officers' liability insurance,
under which its directors and officers are insured, within the limits and
subject to the limitations of the policies, against certain expenses in
connection with the defense of, and certain liabilities which might be
imposed as a result of, actions, suits or proceedings to which directors
and officers are parties by reason of being or have been directors or
officers of the Registrant, as the case may be.
ITEM 8. EXHIBITS
EXHIBIT NO. DESCRIPTION OF EXHIBIT
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4.1 Amended and Restated Certificate of Incorporation of the
Registrant (incorporated herein by reference from the
Registrant's Quarterly Report on Form 10-Q for the period
ended June 30, 1997 (File No. 001-12929)).
4.2 Amended and Restated By-Laws of the Registrant (incorporated
herein by reference from the Registrant's Quarterly Report
on Form 10-Q for the period ended June 30, 1997 (File No.
001-12929)).
4.3 Rights Agreement, dated as of June 12, 1997, between the
Registrant and ChaseMellon Shareholder Services, LLC
(incorporated herein by reference from the Registration
Statement on Form 8-A filed with the Securities and Exchange
Commission on June 30, 1997 (File No. 001-12929)).
4.4 Amendment No. 1 to Rights Agreement, dated as of June 14,
1999, between the Registrant and ChaseMellon Shareholder
Services LLC (incorporated herein by reference from the
Registration Statement on Form 8-A/A filed with the
Securities and Exchange Commission on June 14, 1999 (File
No. 001-12929)).
4.5 Amendment No. 2 to Rights Agreement, dated as of November
15, 2001 between the Registrant and Mellon Investor
Services, LLC (incorporated herein by reference from the
Registration Statement on Form 8-A/A filed with the
Securities and Exchange Commission on November 19, 2001
(File No. 001-12929)).
4.6 Amended and Restated CommScope, Inc. 1997 Long-Term
Incentive Plan (as amended and restated May 7, 2004)
(incorporated by reference to Appendix B to Registrant's
Proxy Statement filed on March 24, 2004 (File No.
001-12929)).
5.1* Opinion of Fried, Frank, Harris, Shriver & Jacobson LLP
23.1 Consent of Fried, Frank, Harris, Shriver & Jacobson LLP
(included in Exhibit 5.1)
23.2* Consent of Deloitte & Touche LLP
23.3* Consent of PricewaterhouseCoopers LLP
23.4* Consent of PricewaterhouseCoopers LLP
24.1 Powers of Attorney (included on the signature pages)
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* Filed herewith
SIGNATURES
Pursuant to the requirements of the Securities Act, 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 Hickory, State of North Carolina,
on June 21, 2004.
COMMSCOPE, INC.
By: /s/ Frank M. Drendel
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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, Jearld L.
Leonhardt and Frank B. Wyatt, II, 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, this Registration
Statement has been signed by the following persons in the capacities and on
the dates indicated:
SIGNATURE TITLE DATE
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/s/ Frank M. Drendel Chairman and Chief Executive Officer June 21, 2004
----------------------- (Principal Executive Officer)
Frank M. Drendel
/s/ Jearld L. Leonhardt Executive Vice President and Chief June 21, 2004
----------------------- Financial Officer
Jearld L. Leonhardt (Principal Executive Officer)
/s/ William R. Gooden Senior Vice President and Controller June 21, 2004
----------------------- (Principal Accounting Officer)
William R. Gooden
/s/ Duncan M. Faircloth Director June 21, 2004
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Duncan M. Faircloth
/s/ Boyd L. George Director June 21, 2004
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Boyd L. George
/s/ George N. Hutton, Jr. Director June 21, 2004
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George N. Hutton, Jr.
/s/ June E. Travis Director June 21, 2004
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June E. Travis
/s/ James N. Whitson Director June 21, 2004
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James N. Whitson
INDEX TO EXHIBITS
EXHIBIT NO. DESCRIPTION OF EXHIBIT
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4.1 Amended and Restated Certificate of Incorporation of the
Registrant (incorporated herein by reference from the
Registrant's Quarterly Report on Form 10-Q for the period
ended June 30, 1997 (File No. 001-12929)).
4.2 Amended and Restated By-Laws of the Registrant (incorporated
herein by reference from the Registrant's Quarterly Report
on Form 10-Q for the period ended June 30, 1997 (File No.
001-12929)).
4.3 Rights Agreement, dated as of June 12, 1997, between the
Registrant and ChaseMellon Shareholder Services, LLC
(incorporated herein by reference from the Registration
Statement on Form 8-A filed with the Securities and Exchange
Commission on June 30, 1997 (File No. 001-12929)).
4.4 Amendment No. 1 to Rights Agreement, dated as of June 14,
1999, between the Registrant and ChaseMellon Shareholder
Services LLC (incorporated herein by reference from the
Registration Statement on Form 8-A/A filed with the
Securities and Exchange Commission on June 14, 1999 (File
No. 001-12929)).
4.5 Amendment No. 2 to Rights Agreement, dated as of November
15, 2001 between the Registrant and Mellon Investor
Services, LLC (incorporated herein by reference from the
Registration Statement on Form 8-A/A filed with the
Securities and Exchange Commission on November 19, 2001
(File No. 001-12929)).
4.6 Amended and Restated CommScope, Inc. 1997 Long-Term
Incentive Plan (as amended and restated May 7, 2004)
(incorporated by reference to Appendix B to Registrant's
Proxy Statement filed on March 24, 2004 (File No.
001-12929)).
5.1* Opinion of Fried, Frank, Harris, Shriver & Jacobson LLP
23.1 Consent of Fried, Frank, Harris, Shriver & Jacobson LLP
(included in Exhibit 5.1)
23.2* Consent of Deloitte & Touche LLP
23.3* Consent of PricewaterhouseCoopers LLP
23.4* Consent of PricewaterhouseCoopers LLP
24.1 Powers of Attorney (included on the signature pages)
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* Filed herewith