As filed with the Securities and Exchange Commission on May 17, 2006
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 Number)
incorporation or
organization)
1100 CommScope Place, S.E.
P.O. Box 339
Hickory, North Carolina 28602
(Address of Principal Executive Offices) (Zip Code)
COMMSCOPE, INC. 2006 LONG TERM INCENTIVE PLAN
(Full title of the plan)
Frank B. Wyatt II, Esq.
Senior Vice President, General Counsel and Secretary
1100 CommScope Place, SE, P.O. Box 339
Hickory, North Carolina
(828) 324-2200
(Name, address, and telephone number of agent for service)
CALCULATION OF REGISTRATION FEE
==================================================================================================
Proposed Proposed
Title of Securities Amount Maximum Maximum Amount
to be Registered to be Offering Aggregate of
Registered Price Per Offering Registration
(1) Share (2) Price (2) Fee
--------------------------------------------------------------------------------------------------
Common Stock, par value $0.01 2,300,000 $29.24 $67,252,000 $7,195.96
per share (the "Common Stock")(3) shares
--------------------------------------------------------------------------------------------------
(1) Includes an indeterminate number of shares of Common Stock that may be
issued in the event of stock splits, stock dividends or similar
transactions in accordance with Rule 416 of 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(c) and (h) of the Securities Act based upon the
average of the high and low sales prices for the Common Stock as
reported by the New York Stock Exchange on May 15, 2006.
(3) Each share of Common Stock includes one preferred share purchase
right, initially attached to and traded with each share of Common
Stock. The value attributable to the rights, if any, is reflected in
the value of a share of Common Stock.
EXPLANATORY NOTE
On May 5, 2006, our stockholders approved the CommScope, Inc. 2006
Long Term Incentive Plan (the "Plan"). The purpose of this Registration
Statement on Form S-8 is to register 2,300,000 shares of Common Stock that
may be issued under the Plan.
PART I
Participants in the Plan will be provided with the documents
containing information specified by Part I of this Registration Statement
in accordance with Rule 428(b)(1) promulgated by the Securities and
Exchange Commission (the "SEC") under the Securities Act. These documents
constitute, along with the documents incorporated by reference into this
Registration Statement pursuant to Item 3 of Part II, a prospectus that
meets the requirements of Section 10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
We file annual, quarterly and special reports, proxy statements and
other information with the SEC. You may read and copy any document we file
at the SEC's public reference rooms in Washington, D.C., New York, NY and
Chicago, IL. Please call the SEC at 1-800-SEC-0330 for further information
on the public reference rooms or access our SEC filings on the SEC's web
site at http://www.sec.gov. Reports, proxy and information statements and
other information concerning us can also be inspected at the offices of the
New York Stock Exchange located at 20 Broad Street, New York, NY 10005.
The SEC allows us to "incorporate by reference" information into this
Registration Statement, which means that we can disclose important
information to you by referring you to another document filed separately
with the SEC. The information incorporated by reference is considered to be
part of this Registration Statement, and later information that we file
with the SEC will automatically update this Registration Statement. We
incorporate by reference the following documents and any future filings
made with the SEC under Section 13(a), 13(c), 14 or 15(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), prior to the
termination of the offerings registered on this Registration Statement:
(a) Our Annual Report on Form 10-K for the year ended December 31,
2005.
(b) Our Quarterly Report on Form 10-Q for the period ended March 31,
2006.
(c) Our Current Reports on Form 8-K dated February 13, 2006, March 1,
2006, March 23, 2006 and May 9, 2006 (reporting that our
stockholders approved the Plan).
(d) The description of our common stock contained in our registration
statement on Form S-4 filed with the SEC on June 13, 1997, as
amended.
(e) The description of our preferred share purchase rights contained
in our registration statement on Form 8-A filed with the SEC on
June 30, 1997, as amended.
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel
Certain legal matters with respect to the issuance of the securities
offered hereby will be passed upon for us by Fried, Frank, Harris, Shriver
& Jacobson LLP.
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.
Our Certificate of Incorporation and By-Laws provide that our
directors and officers shall not, to the fullest extent permitted by the
DGCL, be liable to us or any of our stockholders for monetary damages for
any breach of fiduciary duty as a director or officer, as the case may be.
Our Certificate of Incorporation and By-Laws 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 our directors
and officers shall be eliminated or limited to the fullest extent permitted
by the DGCL, as so amended.
We have entered into agreements to indemnify our directors and
officers in addition to the indemnification provided for in our Certificate
of Incorporation and By-Laws. These agreements, among other things,
indemnify our 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 us or one of our affiliates.
We maintain directors' and officers' liability insurance, under which
our 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 our directors and
officers are parties by reason of being or having been our directors or
officers, as the case may be.
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
Exhibit No. Description of Exhibit
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 CommScope, Inc. 2006 Long Term Incentive Plan (incorporated
by reference to Exhibit A to Registrant's Proxy Statement
filed on March 16, 2006 (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
24.1 Powers of Attorney (included on the signature pages)
----------------------
* Filed herewith
Item 9. Undertakings
(a) We hereby undertake:
(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
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; and
(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 the undertakings set forth in
paragraphs (i) and (ii) above do not apply if the
information required to be included in a post-effective
amendment by those paragraphs is contained in periodic
reports we filed under Section 13 or Section 15(d) of the
Exchange Act that are incorporated by reference in the
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) We undertake that, for the purpose of determining any liability
under the Securities Act, each filing of our annual report pursuant to
Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable,
each filing of an employee benefit plan's annual report pursuant to 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 those
securities at that time will be deemed to be the initial bona fide
offering.
(c) To the extent that indemnification for liabilities arising under
the Securities Act may be permitted to our directors, officers and
controlling persons in accordance with the provisions described in Item 6
of this Registration Statement, or otherwise, we have been advised that, in
the opinion of the SEC, 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 us of expenses incurred or paid by one of our directors,
officers or controlling persons in the successful defense of any action,
suit or proceeding) is asserted by a director, officer or controlling
person in connection with the securities being registered, we will, unless
in the opinion of our counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question
whether indemnification is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of the issue.
SIGNATURES
Pursuant to the requirements of the Securities Act, we certify that we
have reasonable grounds to believe that we meet all of the requirements for
filing on Form S-8, and have duly caused this Registration Statement to be
signed on our behalf by the undersigned, thereunto duly authorized, in the
City of Hickory, State of North Carolina, on May 17, 2006.
COMMSCOPE, INC.
/s/ Frank M. Drendel
--------------------------------
By: Frank M. Drendel
Title: Chairman and Chief
Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Frank M. Drendel, Jearld L.
Leonhardt and Frank B. Wyatt, II, and each of them, as his or her true and
lawful attorney-in-fact and agent with full powers of substitution and
resubstitution, for him or her in his or her name, place and stead, in any
and all capacities, to sign any and all amendments to this Registration
Statement (including post-effective amendments), and any and all documents
in connection therewith, and to file the same, with all exhibits thereto,
and other documents in connection therewith, with the SEC, granting unto
said attorney-in-fact and agent 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 in order to effectuate the same, as fully to all intents
and purposes as he or she might or could do in person, and hereby ratifies,
approves and confirms all that his or her said attorney-in-fact and agent,
each acting alone, or his or her substitute or substitutes, may lawfully do
or cause to be done by virtue hereof.
IN WITNESS WHEREOF, each of the undersigned has executed this Power of
Attorney as of the date indicated.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed below by the following persons in the capacities
and on the date indicated.
Signature Title Date
---------------------------- ------------------------- -----------------
/s/ Frank M. Drendel Chairman and Chief May 17, 2006
Frank M. Drendel Executive Officer
(Principal Executive
Officer)
/s/ Jearld L. Leonhardt Executive Vice President May 17, 2006
Jearld L. Leonhardt and Chief Financial
Officer (Principal
Financial Officer)
/s/ William R. Gooden Senior Vice President May 17, 2006
William R. Gooden and Controller
(Principal Accounting
Officer)
/s/ Boyd L. George Director May 17, 2006
Boyd L. George
/s/ George N. Hutton, Jr. Director May 17, 2006
George N. Hutton, Jr.
/s/ Katsuhiko Okubo Director May 17, 2006
Katsuhiko Okubo
/s/ Richard C. Smith Director May 17, 2006
Richard C. Smith
/s/ June E. Travis Director May 17, 2006
June E. Travis
/s/ James N. Whitson Director May 17, 2006
James N. Whitson
INDEX TO EXHIBITS
Exhibit No. Description of Exhibit
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 CommScope, Inc. 2006 Long Term Incentive Plan
(incorporated by reference to Exhibit A to
Registrant's Proxy Statement filed on March 16,
2006 (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
24.1 Powers of Attorney (included on the signature
pages)
----------------------
* Filed herewith