lhs8_commscope.htm
As
filed with the Securities and Exchange Commission on February 26,
2009
Registration
No.
333-
UNITED
STATES
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
(State
or other jurisdiction of
incorporation
or organization)
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36-4135495
(I.R.S.
Employer
Identification
Number)
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|
1100
CommScope Place, SE
P.O. Box
339
Hickory,
North Carolina 28602
(828) 324-2200
(Address,
including zip code and telephone number, including area code, of
registrant’s principal executive offices)
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CommScope,
Inc. Retirement Savings Plan
(Full
title of the plan)
Frank
B. Wyatt, II
Senior
Vice President, General Counsel and Secretary
1100
CommScope Place, SE
P.O. Box
339
Hickory,
North Carolina 28602
(828) 324-2200
(Name,
address, including zip code, and telephone number, including area code, of agent
for service)
CALCULATION OF REGISTRATION
FEE
Title
of Securities
to
be Registered
|
Amount to be Registered
(1)
|
Proposed
Maximum Offering Price Per Share
|
Proposed
Maximum Aggregate
Offering
Price
|
Amount
of
Registration Fee
(2)
|
Common
Stock, par value $0.01 per share
|
10,000,000
|
$13.11
|
$131,100,000
|
$5,153
|
Total
|
10,000,000
|
$13.11
|
$131,100,000
|
$5,153
|
(1)
|
In
addition, pursuant to Rule 416(c) under the Securities Act of 1933, as
amended (the “Securities
Act”), this Registration Statement also covers an indeterminate
amount of interests to be offered or sold pursuant to the employee benefit
plan described herein. Pursuant to Rule 457(h)(2), no
registration fee is required with respect to the interests in the
plan.
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(2)
|
Estimated
solely for the purpose of calculating the registration fee in accordance
with Rule 457(c) and 457(h) based upon the average of the high
and low prices of the Common Stock reported on New York Stock Exchange on
February 23, 2009.
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EXPLANATORY
NOTE
By a
Registration Statement on Form S-8 filed with the Securities and Exchange
Commission (the “SEC”)
on June 20, 1997 (File No. 333-29725), CommScope, Inc. (the “Registrant”) registered
3,000,000 shares of Common Stock, reserved for issuance under the CommScope,
Inc. Retirement Savings Plan (formerly known as the CommScope, Inc. Employees
Profit Sharing and Savings Plan), which plan has been amended and restated
effective as of December 31, 2008 (the “Plan”).
This Form
S-8 Registration Statement of the Registrant is being filed pursuant to General
Instruction E to Form S-8 under the Securities Act to register 10,000,000
additional shares of the Company’s Common Stock, par value $0.01, for issuance
under the Plan. In addition to the information required pursuant to
General Instruction E to Form S-8, certain items required by Form S-8 which were
contained in the Registrant’s Form S-8 filed on June 20, 1997 have been updated
in this Form S-8.
References
to “us,” “our,” “we,”
and “the Registrant”
shall mean CommScope, Inc.
PART II
Item
3. Incorporation of Documents
by Reference
This Registration
Statement hereby incorporates by reference the contents of the Registrant’s
Registration Statement on Form S-8 (File No. 333-29725) filed with the SEC on
June 20, 1997.
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 8. Exhibits
Exhibit
Number
|
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Description
of Exhibit
|
5.1*
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Opinion
of Fried, Frank, Harris, Shriver & Jacobson, LLP
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23.1*
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Consent
of Ernst & Young LLP
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23.2*
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Consent
of Deloitte & Touche LLP
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23.3*
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Consent
of Cherry, Bekaert & Holland, L.L.P.
|
23.4*
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Consent
of Deloitte & Touche LLP
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23.5*
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Consent
of Fried, Frank, Harris, Shriver & Jacobson LLP (included in the
opinion filed as Exhibit 5.1)
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24.1
|
|
Power
of Attorney (included on signature
page)
|
_____________________
The
Registrant will submit or has submitted the Plan and any amendments thereto to
the Internal Revenue Service in a timely manner and has made or will make all
changes required by the Internal Revenue Service in order to qualify the Plan
under Section 401 of the Internal Revenue Code.
Item 9. Undertakings
(a) The
undersigned Registrant hereby undertakes:
(1)
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To
file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration
Statement:
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(i)
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To
include any prospectus required by Section 10(a)(3) of the Securities
Act;
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(ii)
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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
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(iii)
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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;
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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 of 1934 (the “Exchange Act”) that are
incorporated by reference in the Registration Statement.
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(2)
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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.
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(3)
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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.
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(b)
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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.
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(c)
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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.
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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 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 February 26, 2009.
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COMMSCOPE,
INC. |
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By:
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/s/ Frank
M. Drendel |
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Name:
Frank M. Drendel |
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Title: Chairman
and Chief Executive Officer |
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POWER
OF ATTORNEY
Each
person whose signature appears below constitutes and appoints Frank M. Drendel,
Brian D. Garrett, Jearld L. 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
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Title
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Date
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/s/ Frank M. Drendel
Frank
M. Drendel
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Chairman
and Chief Executive Officer
(Principal
Executive Officer)
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February
26, 2009
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/s/ Jearld L. Leonhardt
Jearld
L. Leonhardt
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Executive
Vice President and Chief Financial Officer
(Principal
Financial Officer)
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February
26, 2009
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/s/
William R. Gooden
William
R. Gooden
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Senior
Vice President and Controller (Principal Accounting
Officer)
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February
26, 2009
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/s/ Boyd
L. George
Boyd
L. George
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Director
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February
26, 2009
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/s/ George N. Hutton, Jr.
George
N. Hutton, Jr.
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Director
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February
26, 2009
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/s/ June E. Travis
June
E. Travis
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Director
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February
26, 2009
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/s/ James N. Whitson
James
N. Whitson
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Director
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February
26, 2009
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/s/ Katsuhiko Okubo
Katsuhiko
Okubo
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Director
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February
26, 2009
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/s/ Richard C. Smith
Richard
C. Smith
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Director
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February
26,
2009
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INDEX
TO EXHIBITS
Exhibit
Number
|
|
Description
of Exhibit
|
5.1
|
|
Opinion
of Fried, Frank, Harris, Shriver & Jacobson, LLP
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23.1
|
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Consent
of Ernst & Young LLP
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23.2
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Consent
of Deloitte & Touche LLP
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23.3
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Consent
of Cherry, Bekaert & Holland, L.L.P.
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23.4
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Consent
of Deloitte & Touche LLP
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23.5
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Consent
of Fried, Frank, Harris, Shriver & Jacobson LLP (included in the
opinion filed as Exhibit 5.1)
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24.1
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Power
of Attorney (included on signature
page)
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