We,
CommScope, Inc. (“CommScope” or the “Registrant”)
entered into an
Agreement and Plan of Merger, dated as of June 26, 2007 (the “Merger Agreement”), with
DJRoss, Inc., a Delaware corporation and an indirect wholly owned subsidiary
of
CommScope, and Andrew Corporation, a Delaware corporation (“Andrew”). Upon
the consummation of the merger on December 27, 2007 (the “Effective Time”), Andrew
became an indirect wholly owned subsidiary of CommScope.
Pursuant
to the Merger Agreement, options to purchase shares of Andrew common stock
that
were outstanding immediately prior to the Effective Time and not cancelled
pursuant to the Merger Agreement were converted into options to purchase
shares
of CommScope common stock, par value $0.01 per share (“Common Stock”) as of the
Effective Time (the “Converted
Options”). The Converted Options were granted pursuant to the
Andrew Corporation Management Incentive Program, approved by the board
of
directors on December 18, 1987 and submitted to the stockholders on February
4,
1988 (the “1988
Plan”), the Allen Telecom Inc. Amended and Restated 1992 Stock
Plan (the “Allen
Plan”), the Andrew Corporation Stock Option Plan for Non-Employee
Directors, approved by the board of directors on November 13, 1997 and
submitted to the stockholders on February 10, 1998 (the “Director Plan”), and the
Andrew Corporation Management Incentive Program, approved by the board
of
directors on November 18, 1999, and submitted to the stockholders on February
8,
2000 (the “2000 Plan”),
and will continue to be governed by the terms and conditions of the plan
pursuant to which they were granted (except for adjustments to the underlying
number of shares and the exercise price as provided in the Merger
Agreement).
The
Registrant is filing this registration statement to register 847,956 shares
of
Common Stock to be issued upon the exercise of the Converted Options originally
granted under the 1988 Plan, the Allen Plan, the Director Plan and the
2000
Plan, and 1,009,393 shares of Common Stock to be issued in connection with
future awards under the 2000 Plan and the Andrew Corporation Long-Term
Incentive
Plan, approved by the board of directors on November 17, 2004 and submitted
to
the stockholders on February 8, 2005 (the “2005
Plan”).
PART
I
The
documents containing the information specified in Part I of Form S-8 will
be
sent or given to plan participants as specified in Rule 428(b)(1) promulgated
by
the U.S. Securities and Exchange Commission (the “SEC”) under the Securities
Act of 1933, as amended (the “Securities
Act”). Such documents are not required to be filed with the
SEC but constitute (along with the documents incorporated by reference
in this
Registration Statement pursuant to Item 3 of Part II hereof) a prospectus
that
meets the requirements of Section 10(a) of the Securities Act.
References
to “us,” “our,” “we,”
and “the Company” shall
mean CommScope, Inc., a Delaware corporation.
PART
II
INFORMATION
REQUIRED IN THE
REGISTRATION STATEMENT
Item
3. Incorporation
of Documents
by Reference
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 documents
listed below:
(a) Our
Annual Report filed on Form 10-K for the year ended December 31, 2006,
filed on
March 1, 2007, which contains the Registrant’s audited consolidated financial
statements for the fiscal year ended December 31, 2006.
(b) Our
Quarterly Reports on Form 10-Q filed on May 1, 2007, August 2, 2007 and
November
7, 2007 for the periods ended March 31, 2007, June 30, 2007 and September
30,
2007, respectively.
(c) Our
Current Reports on Form 8-K filed on October 30, 2007, December 4, 2007,
December 6, 2007, December 26, 2007 and December 28, 2007.
(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.
In
addition, any future filings made by us with the SEC under Sections 13(a),
13(c), 14 or 15(d) of the Exchange Act of 1934 (the “Exchange Act”), prior to the
filing of a post-effective amendment which indicates that all securities
offered
have been sold or which deregisters all securities then remaining unsold,
shall
be deemed to be incorporated by reference in this Registration Statement
and to
be part hereof from the date of filing of such documents.
Any
statement contained in any document 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 other subsequently
filed incorporated document 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
Not
applicable.
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
by-laws, agreement, vote of stockholders or disinterested directors, 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 the DGCL or other
applicable state law for certain losses and 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
Number
|
Description
of Exhibit
|
4.1
|
Amended
and Restated Certificate of Incorporation of CommScope, Inc.
(Incorporated
herein by reference to the Company’s Quarterly Report on Form 10-Q for the
period ended June 30, 1997 (File No. 001-12929)).
|
4.2
|
Amended
and Restated Bylaws of CommScope, Inc. (Incorporated herein
by reference
to the Company’s Quarterly Report on Form 10-Q for the period ended June
30, 1997 (File No. 001-12929)).
|
4.3
|
The
Andrew Corporation Management Incentive Program, dated February
4, 1988
(Incorporated herein by reference to Exhibit 10(c) to Andrew
Corporation’s
Form 10-K for fiscal year ended September 30, 1993 (File No.
000-09514)).
|
4.4
|
Allen
Telecom Inc. Amended and Restated 1992 Stock Plan, dated February 27,
1992 (Incorporated herein by reference to Exhibit 4.5 to Andrew
Corporation’s Form S-8 filed on August 1, 2003 (SEC File No.
333-107550)).
|
4.5
|
The
Andrew Corporation Stock Option Plan for Non-Employee Directors
dated
February 10, 1998, as amended November 18, 1999 (Incorporated
herein by
reference to Exhibit 10(c) to Andrew Corporation’s Form 10-K for fiscal
year ended September 30, 1999 (SEC File No.
(001-14617)).
|
4.6
|
The
Andrew Corporation Management Incentive Program, dated November
18, 1999
(Incorporated herein by reference to Exhibit 10.18 to Andrew
Corporation’s
Form 10-K for fiscal year ended September 30, 2000 and incorporated
herein
by reference (SEC File No. 001-14617)).
|
4.7
|
Long-Term
Incentive Plan, dated November 17, 2004 (Incorporated herein
by reference
to Andrew Corporation’s Proxy Statement filed in connection with the
Annual Meeting held February 8, 2005 (SEC File No.
001-14617)).
|
5.1*
|
Opinion
of Fried, Frank, Harris, Shriver & Jacobson, LLP
|
23.1*
|
Consent
of Independent Accounting Firm
|
23.2*
|
Consent
of Fried, Frank, Harris, Shriver & Jacobson LLP (included in the
opinion filed as Exhibit 5.1)
|
24.1
|
Power
of Attorney (included on signature
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;
(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
hereof) 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 (a)(1)(i) and (a)(1)(ii) of this
section 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 SEC by the Registrant pursuant to 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) The undersigned Registrant hereby
undertakes that, for purposes 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) 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 provisions described in Item 6 of this Registration
Statement,
or otherwise, the Registrant has been advised that in the opinion of
the SEC
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 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
indemnification is against public policy as expressed in the Act and
will be
governed by the final adjudication of the issue.
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 the requirements
for
filing on Form S-8 and has duly caused this Registration Statement to
be signed
on its behalf by the undersigned, hereunto duly authorized, in the city
of
Hickory, state of North Carolina, on December 21, 2007.
|
COMMSCOPE,
INC. |
|
|
|
|
|
|
/s/ Frank
M.
Drendel
|
|
|
|
By:
Frank M. Drendel |
|
|
|
Title:
Chairman and Chief Executive Officer |
|
|
|
|
|
POWER
OF ATTORNEY
Each person whose signature appears below constitutes and appoints Frank
M.
Drendel, Brian D. Garrett, Jearld D. Leonhardt and Frank B. Wyatt, II,
and each
of them (with full power to act alone), as his or her true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution,
for such person and in his or her name, place and stead, in any and all
capacities, to sign any or all further amendments (including post-effective
amendments) to this Registration Statement (and any additional registration
statement related hereto permitted by Rule 462(b) promulgated under the
Securities Act of 1933 (and all further amendments, including post-effective
amendments, thereto)), and to file the same, with all exhibits thereto,
and
other documents in connection therewith, with the U.S. Securities and
Exchange
Commission, granting unto said attorneys-in-fact and agents, and each
of them,
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, hereby ratifying
and
confirming all that said attorney-in-fact and agent, or his substitute
or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration
statement has been signed by the following persons in the capacities
and on the
dates indicated below.
Signature
|
Title
|
Date
|
/s/
Frank M.
Drendel
Frank
M. Drendel
|
Chairman
and Chief Executive Officer
(Principal
Executive Officer)
|
December
21, 2007
|
/s/
Jearld L.
Leonhardt
Jearld
L. Leonhardt
|
Executive
Vice President and Chief Financial Officer
(Principal
Financial Officer)
|
December
21, 2007
|
/s/
William R.
Gooden
William
R. Gooden
|
Senior
Vice President and Controller (Principal Accounting
Officer)
|
December
21, 2007
|
/s/
Boyd L.
George
Boyd
L. George
|
Director
|
December
21, 2007
|
/s/
George N. Hutton,
Jr.
George
N. Hutton, Jr.
|
Director
|
December
21, 2007
|
/s/
June E.
Travis
June
E. Travis
|
Director
|
December
22, 2007
|
/s/
James N.
Whitson
James
N. Whitson
|
Director
|
December
23, 2007
|
/s/
Katsuhiko
Okubo
Katsuhiko
Okubo
|
Director
|
December
23, 2007
|
/s/
Richard C.
Smith
Richard
C. Smith
|
Director
|
December
23, 2007
|
INDEX
TO EXHIBITS
Exhibit
Number
|
|
Description
of Exhibit
|
4.1
|
|
Amended
and Restated Certificate of Incorporation of CommScope, Inc.
(Incorporated
herein by reference to the Company’s Quarterly Report on Form 10-Q for the
period ended June 30, 1997 (File No. 001-12929)).
|
4.2
|
|
Amended
and Restated Bylaws of CommScope, Inc. (Incorporated herein
by reference
to the Company’s Quarterly Report on Form 10-Q for the period ended June
30, 1997 (File No. 001-12929)).
|
4.3
|
|
The
Andrew Corporation Management Incentive Program, dated February
4, 1988
(Incorporated herein by reference to Exhibit 10(c) to Andrew
Corporation’s
Form 10-K for fiscal year ended September 30, 1993 (File No.
000-09514)).
|
4.4
|
|
Allen
Telecom Inc. Amended and Restated 1992 Stock Plan, dated February 27,
1992 (Incorporated herein by reference to Exhibit 4.5 to Andrew
Corporation’s Form S-8 filed on August 1, 2003 (SEC File No.
333-107550)).
|
4.5
|
|
The
Andrew Corporation Stock Option Plan for Non-Employee Directors
dated
February 10, 1998, as amended November 18, 1999 (Incorporated
herein by
reference to Exhibit 10(c) to Andrew Corporation’s Form 10-K for fiscal
year ended September 30, 1999 (SEC File No.
(001-14617)).
|
4.6
|
|
The
Andrew Corporation Management Incentive Program, dated November
18, 1999
(Incorporated herein by reference to Exhibit 10.18 to Andrew
Corporation’s
Form 10-K for fiscal year ended September 30, 2000 and incorporated
herein
by reference (SEC File No. 001-14617)).
|
4.7
|
|
Long-Term
Incentive Plan, dated November 17, 2004 (Incorporated herein
by reference
to Andrew Corporation’s Proxy Statement filed in connection with the
Annual Meeting held February 8, 2005 (SEC File No.
001-14617)).
|
5.1*
|
|
Opinion
of Fried, Frank, Harris, Shriver & Jacobson, LLP
|
23.1*
|
|
Consent
of Independent Accounting Firm
|
23.2*
|
|
Consent
of Fried, Frank, Harris, Shriver & Jacobson LLP (included in the
opinion filed as Exhibit 5.1)
|
24.1
|
|
Power
of Attorney (included on signature
page)
|