dc8k2_commscope.htm

0000895345-09-000250.txt : 20090325 0000895345-09-000250.hdr.sgml : 20090325 20090325073335 ACCESSION NUMBER: 0000895345-09-000250 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 5 CONFORMED PERIOD OF REPORT: 20090324 ITEM INFORMATION: Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers: Compensatory Arrangements of Certain Officers ITEM INFORMATION: Financial Statements and Exhibits FILED AS OF DATE: 20090325 DATE AS OF CHANGE: 20090325 FILER: COMPANY DATA: COMPANY CONFORMED NAME: COMMSCOPE INC CENTRAL INDEX KEY: 0001035884 STANDARD INDUSTRIAL CLASSIFICATION: RADIO & TV BROADCASTING & COMMUNICATIONS EQUIPMENT [3663] IRS NUMBER: 364135495 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 001-12929 FILM NUMBER: 09702780 BUSINESS ADDRESS: STREET 1: 1100 COMMSCOPE PLACE SE CITY: HICKORY STATE: NC ZIP: 28602 BUSINESS PHONE: 8283242200 MAIL ADDRESS: STREET 1: 1100 COMMSCOPE PLACE SE CITY: HICKORY STATE: NC ZIP: 28602 8-K 1 dc8k2_commscope.htm dc8k2_commscope.htm

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

___________________________________

FORM 8-K

CURRENT REPORT

Pursuant to Section 13 or 15(d) of the

Securities Exchange Act of 1934

___________________________________

Date of Report (Date of Earliest Event Reported): March 25, 2009 (March 24, 2009)

COMMSCOPE, INC.

(Exact name of registrant as specified in its charter)

Delaware (State or other jurisdiction of incorporation)	1-12929 (Commission File Number)	36-4135495 (I.R.S. Employer Identification Number)
	1100 CommScope Place, SE Hickory, North Carolina 28602 (Address of principal executive offices)

Registrant’s telephone number, including area code: (828) 324-2200

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):

[ ] Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

[ ] Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

[ ] Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

[ ] Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

Item 5.02.

Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.

(e) Compensatory Arrangements of Certain Officers

On March 24, 2009, the Compensation Committee of the Board of Directors of CommScope, Inc. (the “Company”) approved and made grants to the Company’s named executive officers pursuant to the Company’s forms of Nonqualified Stock Option Agreement and Employee Performance Share Unit Award Agreement. These forms provide for grants of awards pursuant to the CommScope, Inc. 2006 Long Term Incentive Plan (the “CommScope LTIP”). The Nonqualified Stock Option Agreement provides grantees an option to purchase a specified number of shares of Company common stock, which option generally vests in one-third increments on each of the first, second and third anniversaries of the date of grant, provided the grantee remains employed with the Company on the applicable vesting date (except in the case of death, disability or retirement under certain circumstances). The Employee Performance Share Unit Award Agreement generally provides that a grantee will be eligible to receive shares of Company common stock upon the third anniversary of the date of grant in respect of performance share units which have vested as a result of the Company’s performance during the applicable performance period, provided the grantee remains employed with the Company on such date (except in the case of death, disability or retirement under certain circumstances). The relevant performance measure under the Performance Share Unit Award Agreement is the Company’s operating income, subject to certain adjustments, for fiscal year 2009. The Compensation Committee also approved the Company’s form of Employee Restricted Stock Unit Agreement (but made no grants to named executive officers pursuant to this form of agreement), which provides for grants of restricted stock units pursuant to the CommScope LTIP. The Employee Restricted Stock Unit Agreement generally provides that a grantee will be eligible to receive shares of Company common stock upon the third anniversary of the date of grant, provided the grantee remains employed with the Company on such date (except in the case of death, disability or retirement under certain circumstances).

The options (which have an exercise price of $9.80 per share) and performance share units granted to our named executive officers on March 24, 2009 are as follows:

Name and Title	Options Granted	Performance Share Units Granted
Name and Title	Options Granted	Threshold Performance	Target Performance	Maximum Performance
Frank M. Drendel Chairman and Chief Executive Officer	133,346	11,106	22,212	33,318
Jearld L. Leonhardt Executive Vice President and Chief Financial Officer	23,350	1,945	3,890	5,835
Brian D. Garrett President and Chief Operating Officer	70,425	5,866	11,731	17,597
Edward A. Hally Executive Vice President and General Manager, Antenna, Cable and Cabinets Group	18,807	1,567	3,133	4,700
Marvin S. Edwards, Jr., Executive Vice President and General Manager, Wireless Network Solutions	15,988	1,332	2,663	3,995

The following chart summarizes the outstanding equity awards, shares available for future awards and other information about outstanding awards granted under the CommScope LTIP, Andrew Corporation Long Term Incentive Plan (the “Andrew LTIP”) and Andrew Corporation Management Incentive Plan (the “Andrew MIP”), after the grant of equity awards on March 24, 2009 to the named executive officers and other employees:

	Number of Shares Available for Future Issuance	Outstanding Unexercised Options			Number of Unvested Full Value Awards
		Number of Shares Underlying Outstanding Options	Weighted Average Exercise Price of Outstanding Options	Weighted Average Remaining Term For Unexercised Options
Total Amounts for CommScope LTIP, Andrew LTIP and Andrew MIP	511,131*	3,265,584	$25.18	5.2 years	1,869,642

This number assumes maximum performance will be achieved with respect to the performance goals set for performance share units granted on March 24, 2009. If maximum performance is achieved, a number of shares equal to 150% of the performance share units granted would be issued following the vesting date. The number of shares available for future awards under each plan is as follows: CommScope LTIP 60,960 (all of which are available to be granted as full value awards and do not include the shares that will become available for issuance under the CommScope LTIP upon approval by the Company’s stockholders on May 1, 2009); Andrew LTIP 127,892 (all of which are available to be granted as full value awards); and Andrew MIP 322,279 (of which 13,301 are available to be granted as full value awards). If stockholders approve an increase in the number of shares available for grant under the CommScope LTIP on May 1, 2009, then any shares remaining available for future grant under the Andrew LTIP and the Andrew MIP will be cancelled and no further grants will be made under those plans.

Also on March 24, 2009, the Compensation Committee of the Company established (i) the classes and number of employees (which includes the Company’s executive officers) eligible to receive awards under the Company’s Annual Incentive Plan (the “AIP”) for the 2009 performance year, (ii) the aggregate target award for each employee class for the 2009 performance year and (iii) the maximum award payable to any employee class under the AIP for the 2009 performance year. The Compensation Committee also amended the AIP to provide the committee with the discretion to reduce the amount of an award that would otherwise be payable to any participant under the AIP.

In addition, the Compensation Committee determined that the Financial Targets (as such term is defined in the AIP) for the 2009 performance year will be expressed in terms of two weighted metrics, namely Free Cash Flow (25%) for the Company and Operating Income (75%), for either the Company or one of its operating units, as applicable. The term “Free Cash Flow” is defined as net cash provided by operating activities less additions to property, plant and equipment, both as reported in the Company’s consolidated statement of cash flows for 2009. The term “Operating Income” is defined as operating income (or loss) as appears on the Company’s consolidated statement of operations for 2009, increased or decreased by certain specified items.

The named executive officers’ target incentive bonuses under the AIP for 2009 (expressed as a percentage of salary) are as follows: Mr. Drendel—115%, Mr. Leonhardt—70%, Mr. Garrett—85%, Mr. Hally—70% and Mr. Edwards—60%. These target bonus percentages are the same percentages as were in effect for 2008. Amounts payable under the AIP for the 2009 performance year can range from 0% to 200% of the targeted awards, based on the extent to which actual Free Cash Flow and Operating Income meet, exceed or are below the applicable Financial Targets.

With respect to the Company’s Policy on Discretionary Performance Compensation (the “Policy”), on March 24, 2009, the Compensation Committee of the Company established the 2009 Percentage (as defined in the Policy) for payment of Discretionary Performance Compensation (also as defined in the Policy). For the 2009 fiscal year, Percentages payable under the Policy can range from 0% to 2% of annualized pay as of December 31, 2009, based on the Company’s Operating Income (as defined for purposes of the Company’s 2009 AIP Financial Targets). For the Company’s executive officers, the Compensation Committee set the percentage at 2% for the 2009 fiscal year if the Company’s Operating Income equals or exceeds 100% of the Corporate target set forth in the AIP. That percentage decreases as the percent of target reached decreases, down to 0% if less than 50% of the AIP Adjusted Operating Income target is reached.

Item 9.01. Financial Statements and Exhibits.

(d) Exhibit Description

99.1	Form of Nonqualified Stock Option Agreement

99.2	Form of Employee Performance Share Unit Award Agreement

99.3	Form of Employee Restricted Stock Unit Agreement

99.4	CommScope, Inc. Annual Incentive Plan (as amended effective March 24, 2009)

SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

Dated: March 25, 2009

	COMMSCOPE, INC.
	By:	/s/ Frank B. Wyatt, II
		Frank B. Wyatt, II
		Senior Vice President, General Counsel and Secretary

Index of Exhibits

Exhibit No.	Description
99.1	Form of Nonqualified Stock Option Agreement
99.2	Form of Employee Performance Share Unit Award Agreement
99.3	Form of Employee Restricted Stock Unit Agreement
99.4	CommScope, Inc. Annual Incentive Plan (as amended effective March 24, 2009)

EX-99.1 2 dc8k2ex99_1.htm dc8k2ex99_1.htm

EXHIBIT 99.1

FORM OF

COMMSCOPE, INC.

2006 LONG TERM INCENTIVE PLAN

NONQUALIFIED STOCK OPTION AGREEMENT (ANNUAL)

THIS AGREEMENT, made as of the ____ day of _________, 2009 (the “Grant Date”), between CommScope, Inc., a Delaware corporation (the “Company”), and (the “Grantee”).

WHEREAS, the Company has adopted the CommScope, Inc. 2006 Long Term Incentive Plan (the “Plan”) in order to provide an additional incentive to certain employees and directors of the Company and its Subsidiaries; and

WHEREAS, the Committee responsible for administration of the Plan has determined to grant an option to the Grantee as provided herein;

NOW, THEREFORE, the parties hereto agree as follows:

1. Grant of Option.

1.1 The Company hereby grants to the Grantee the right and option (the “Option”) to purchase all or any part of an aggregate of whole Shares subject to, and in accordance with, the terms and conditions set forth in this Agreement.

1.2 The Option is not intended to qualify as an Incentive Stock Option.

1.3 This Agreement shall be construed in accordance and consistent with, and subject to, the provisions of the Plan (the provisions of which are incorporated herein by reference); and, except as otherwise expressly set forth herein, the capitalized terms used in this Agreement shall have the same definitions as set forth in the Plan.

2. Purchase Price.

The price at which the Grantee shall be entitled to purchase Shares upon the exercise of the Option shall be $__________ per Share.

3. Duration of Option.

The Option shall be exercisable to the extent and in the manner provided herein for a period of ten (10) years from the Grant Date (the “Exercise Term”); provided, however, that the Option may be earlier terminated as provided in Section 6 hereof.

4. Vesting and Exercisability of Option.

Unless otherwise provided in this Agreement or the Plan, the Option shall entitle the Grantee to purchase, in whole at any time or in part from time to time, thirty-three and one-third percent (33-1/3%) of the total number of Shares covered by the Option after the expiration of one (1) year from the Grant Date, an additional thirty-three and one-third percent (33-1/3%) of the total number of Shares covered by the Option after the second anniversary of the Grant Date, and the remainder of the number of Shares subject to the Option after the third anniversary of the Grant Date, and each such right of purchase shall be cumulative and shall continue, unless sooner exercised as herein provided, during the remaining period of the Exercise Term. Any fractional number of Shares resulting from the application of the percentages set forth in this Section 4 shall be rounded to the next higher whole number of Shares.

5. Manner of Exercise and Payment.

5.1 Subject to the terms and conditions of this Agreement and the Plan, the Option may be exercised by delivery of written notice to the Company, at its principal executive office. Such notice shall state that the Grantee is electing to exercise the Option and the number of Shares in respect of which the Option is being exercised and shall be signed by the person or persons exercising the Option. If requested by the Committee, such person or persons shall (i) deliver this Agreement to the Secretary of the Company who shall endorse on this Agreement a notation of such exercise and (ii) provide satisfactory proof as to the right of such person or persons to exercise the Option.

5.2 The notice of exercise described in Section 5.1 shall be accompanied by the full purchase price for the Shares in respect of which the Option is being exercised, in cash or by check or, if indicated in the notice, such payment shall follow by check from a registered broker acting as agent on behalf of the Grantee. However, at the discretion of the Committee appointed to administer the Plan, the Grantee may pay the exercise price in part or in full by transferring to the Company unrestricted Shares owned by the Grantee prior to the exercise of the Option having a Fair Market Value on the day preceding the date of exercise equal to the cash amount for which such shares are substituted. “Fair Market Value” shall mean (i) if the Shares are listed for trading on the New York Stock Exchange, the closing price at the close of the primary trading session of the Shares on such date on the New York Stock Exchange, or if there has been no such closing price of the Shares on such date, on the next preceding date on which there was such a closing price, (ii) if the Shares are not so listed, but are listed on another national securities exchange, the closing price at the close of the primary trading session of the Shares on such date on such exchange, or if there has been no such closing price of the Shares on such date, on the next preceding date on which there was such a closing price, (iii) if the Shares are not listed for trading on the New York Stock Exchange or on another national securities exchange, the last sale price at the end of normal market hours of the Shares on such date as quoted on the National Association of Securities Dealers Automated Quotation System (“NASDAQ”) or, if no price shall have been so quoted for such date, on the next preceding date for which such price was so quoted, or (iv) if the Shares are not listed for trading on a national securities exchange or are not authorized for quotation on NASDAQ, the fair market value of the Shares as determined in good faith by the Committee.

5.3 Upon receipt of notice of exercise and full payment for the Shares in respect of which the Option is being exercised, the Company shall, subject to this Agreement and the Plan, take such action as may be necessary to effect the transfer to the Grantee of the number of Shares as to which such exercise was effective.

5.4 The Grantee shall not be deemed to be the holder of, or to have any of the rights of a holder with respect to any Shares subject to the Option until (i) the Option shall have been exercised pursuant to the terms of this Agreement and the Grantee shall have paid the full purchase price for the number of Shares in respect of which the Option was exercised, (ii) the Company shall have issued and delivered the Shares to the Grantee, and (iii) the Grantee’s name shall have been entered as a stockholder of record on the books of the Company, whereupon the Grantee shall have full voting and other ownership rights with respect to such Shares.

6. Termination of Employment.

6.1 Death or Disability. In the event the Grantee’s employment is terminated by reason of the Grantee’s death or Disability, any portion of the Option that is not yet vested and exercisable on the Termination Date (as defined below) shall become immediately vested and fully exercisable on such date, and the entire Option shall remain exercisable for a period of five (5) years following the Termination Date by the Grantee or by the Grantee’s legatee or legatees under his will, or by his personal representatives or distributees, as applicable. For purposes of this Agreement, “Termination Date” shall mean the last day on which the Grantee works for the Company, a Subsidiary or a Division.

6.2 Retirement. In the event that (i) the Grantee has completed 10 years of service for the Company, a Subsidiary or a Division, and the Grantee’s employment is terminated as a result of the Grantee’s voluntary retirement after attainment of age 55, or (ii) the Grantee’s employment is terminated as a result of the Grantee’s voluntary retirement after attainment of age 65, the “Pro Rata Portion” (as defined below) of that portion of the Option that would have become vested and exercisable on the anniversary of the Grant Date immediately following the Termination Date shall remain outstanding and shall be eligible to vest on such anniversary date if the Grantee complies with the post-employment covenants described in Appendix A attached hereto. In the event of a breach by the Grantee of the post-employment covenants described in Appendix A, the Option shall immediately be forfeited. The portion of the Option that was previously vested and the portion of the Option that vests pursuant to this Section 6.2 shall, once vested, remain exercisable for a period of five (5) years following the Termination Date, by the Grantee or by the Grantee’s legatee or legatees under his will, or by his personal representatives or distributees, as applicable. Any portion of the Option that is not yet vested and exercisable on the date the Grantee’s employment is terminated by reason of retirement, and which will not become vested and exercisable following the date the Grantee’s employment is terminated by reason of retirement pursuant to this Section 6.2, shall immediately expire on the Termination Date. The “Pro Rata Portion” shall mean a fraction the numerator of which is the number of whole calendar months between (A) the later of the Grant Date or the anniversary of the Grant Date immediately preceding the Termination Date and (B) the Termination Date, and the denominator of which is 12 (rounded to the nearest thousandth).

6.3 Cause. In the event the Grantee’s employment is terminated for Cause, the Option shall immediately expire in its entirety whether or not vested and exercisable. For purposes of this Agreement, “Cause” shall mean (i) in the case of a Grantee whose employment with the Company, a Subsidiary or a Division is subject to the terms of an employment agreement which includes a definition of “Cause,” the meaning set forth in such employment agreement during the period that such employment agreement remains in effect; and (ii) in all other cases, (a) the Grantee’s failure or refusal to perform such Grantee’s substantive duties or to follow the lawful directives of the Board or the board of directors of a Subsidiary, as applicable (or of any superior officer of the Company, a Subsidiary or a Division having direct supervisory authority over such Grantee); (b) the commission of an act of fraud, theft, breach of fiduciary obligation with respect to the Company, a Subsidiary or a Division or a violation of any material policies of the Company, a Subsidiary or a Division, as applicable, of which the Grantee has had prior notice; (c) dishonesty, willful misconduct, or gross negligence in the performance of any substantive duties; or (d) the indictment for, or conviction of or plea of guilty or nolo contendere to any felony (whether or not involving the Company, a Subsidiary or a Division).

6.4 Other Termination of Employment. If the employment of the Grantee is terminated (including the Grantee’s ceasing to be employed by a Subsidiary or a Division as a result of the sale of such Subsidiary or Division or an interest in such Subsidiary or Division) under any circumstance other than those set forth in Section 6.1, Section 6.2 and Section 6.3, any portion of the Option that is not vested and exercisable on the Termination Date shall expire and the Grantee may, at any time within thirty (30) days after the Termination Date, exercise the Option to the extent, but only to the extent, that the Option or portion thereof was vested and exercisable on the Termination Date.

6.5 No Extension of Exercise Term. Notwithstanding the terms of Section 6.1, 6.2 and 6.4 and except as provided in this Section 6.5, in no event may the Option be exercised by anyone after the expiration of the Exercise Term. An Option that becomes vested as a result of a Grantee’s death may be exercised for up to five (5) years following the date of the Grantee’s death but only one (1) of such years may extend beyond expiration of the Exercise Term.

7. Effect of Change in Control.

Notwithstanding anything contained in this Agreement to the contrary, in the event of a Change in Control the Option shall become immediately vested and fully exercisable.

8. Non-transferability.

The Option shall not be assignable or transferable other than by will or the laws of descent and distribution or pursuant to a qualified domestic relations order (within the meaning of Rule 16a-12 promulgated under the Exchange Act). During the lifetime of the Grantee, the Option shall be exercisable only by the Grantee, his or her legal guardian or legal representatives or a bankruptcy trustee. Notwithstanding the foregoing and unless prohibited by applicable law, the Option may be transferred to members of the Grantee’s immediate family, to trusts solely for the benefit of such immediate family members and to partnerships in which such family members and/or trusts are the only partners, and for purposes of this Agreement and the Plan, a transferee of an Option shall be deemed to be the Grantee. For this purpose, immediate family means the Grantee’s spouse, parents, children, stepchildren and grandchildren and the spouses of such parents, children, stepchildren and grandchildren. Notwithstanding anything to the contrary contained herein, the Option may not be exercised by or transferred to any person other than the Grantee, unless such other person presents documentation to the Committee, which proves to the Committee to its reasonable satisfaction such person’s right to the transfer or exercise.

9. No Right to Continued Employment.

Nothing in this Agreement or the Plan shall be interpreted or construed to confer upon the Grantee any right with respect to continuance of employment by the Company, any Subsidiary or any Division, nor shall this Agreement or the Plan interfere in any way with the right of the Company, any Subsidiary or any Division to terminate the Grantee’s employment therewith at any time.

10. Adjustments.

In the event of a Change in Capitalization, the Committee shall make equitable adjustments to the number and class of Shares or other securities subject to the Option and the purchase price for such Shares or other securities. The Committee’s adjustment shall be made in accordance with the provisions of Article 13 of the Plan and shall be final, binding and conclusive for all purposes of the Plan and this Agreement.

11. Effect of Certain Transactions.

Subject to Section 7 hereof, upon the effective date of the liquidation, dissolution, merger or consolidation of the Company (in each case, a “Transaction”), the Option shall continue in effect in accordance with its terms, except that following a Transaction either (a) the Option shall be treated as provided for in the plan or agreement entered into in connection with the Transaction (the “Transaction Agreement”) or (b) if not so provided in the Transaction Agreement, the Grantee shall be entitled to receive in respect of all Shares subject to the Option, upon exercise of the Option, the same number and kind of stock, securities, cash, property or other consideration that each holder of Shares was entitled to receive in the Transaction.

12. Withholding of Taxes.

The Company shall have the right to deduct from any distribution of cash to any Grantee, an amount equal to the federal, state and local income taxes and other amounts as may be required by law to be withheld (the “Withholding Taxes”) with respect to the Option. If a Grantee is entitled to receive Shares upon exercise of the Option, the Grantee shall pay the Withholding Taxes to the Company prior to the issuance of such Shares.

Payment of the applicable Withholding Taxes may be made in any one of: (i) cash, or (ii) by making a Tax Election (as described below), or, if permitted by the Committee, any combination thereof. For purposes of this Article 12, a Grantee may make a written election (the “Tax Election”), which may be accepted or rejected at the discretion of the Committee, to have withheld a portion of the Shares issuable to him or her upon exercise of the Option and valued at its Fair Market Value on the date preceding the date of exercise, equal to the Withholding Taxes.

13. Grantee Bound by the Plan.

The Grantee hereby acknowledges receipt of a copy of the Plan and agrees to be bound by all the terms and provisions thereof.

14. Modification of Agreement.

This Agreement may be modified, amended, suspended or terminated, and any terms or conditions may be waived, but only by a written instrument executed by the parties hereto. No waiver by either party hereto of any breach by the other party hereto of any provision of this Agreement to be performed by such other party shall be deemed a waiver of similar or dissimilar provisions at the time or at any prior or subsequent time.

15. Severability.

Should any provision of this Agreement be held by a court of competent jurisdiction to be unenforceable or invalid for any reason, the remaining provisions of this Agreement shall not be affected by such holding and shall continue in full force in accordance with their terms.

16. Governing Law.

The validity, interpretation, construction and performance of this Agreement shall be governed by the laws of the State of Delaware without giving effect to the conflicts of laws principles thereof.

17. Successors in Interest.

This Agreement shall inure to the benefit of and be binding upon any successor to the Company. This Agreement shall inure to the benefit of the Grantee’s legal representatives. All obligations imposed upon the Grantee and all rights granted to the Company under this Agreement shall be final, binding and conclusive upon the Grantee’s beneficiaries, heirs, executors, administrators and successors.

18. Resolution of Disputes.

Any dispute or disagreement which may arise under, or as a result of, or in any way relate to, the interpretation, construction or application of this Agreement shall be determined by the Committee. Any determination made hereunder shall be final, binding and conclusive on the Grantee and the Company for all purposes.

19. Consent to Jurisdiction.

Each of the parties hereby (a) agrees to personal jurisdiction in any suit, proceeding or action at law or in equity (hereinafter referred to as an “Action”) arising out of or relating to the Plan or this Agreement brought in any state or federal court in the State of North Carolina having subject matter jurisdiction, (b) agrees that such jurisdiction shall be exclusive and that no Action arising out of or relating to the Plan or this Agreement shall be brought in any state or federal court other than that in the State of North Carolina, (c) waives any objection which the party may have now or hereafter to the laying of the venue of any such Action and (d) waives any claim or defense of inconvenient forum.

20. Data Privacy Consent.

Pursuant to applicable personal data protection laws, the Company hereby notifies the Grantee of the following in relation to the Grantee’s personal data and the collection, processing and transfer of such data in relation to the Company’s grant of this Option and the Grantee’s participation in the Plan. The collection, processing and transfer of the Grantee’s personal data is necessary for the Company’s administration of the Plan and the Grantee’s participation in the Plan. The Grantee’s denial and/or objection to the collection, processing and transfer of personal data may affect the Grantee’s participation in the Plan. As such, the Grantee voluntarily acknowledges and consents (where required under applicable law) to the collection, use, processing and transfer of personal data as described herein.

The Company and, if applicable, the Subsidiary employing the Grantee hold certain personal information about the Grantee, including the Grantee’s name, home address and telephone number, date of birth, social security number or other employee identification number, salary, nationality, job title, any Shares or directorships held in the Company, details of all equity awards or any other entitlement to Shares awarded, canceled, purchased, vested, unvested or outstanding in Grantee’s favor, for the purpose of managing and administering the Plan (“Data”). The Data may be provided by the Grantee or collected, where lawful, from third parties, and the Company will process the Data for the exclusive purpose of implementing, administering and managing the Grantee’s participation in the Plan. The Data processing will take place through electronic and non-electronic means according to logics and procedures strictly correlated to the purposes for which Data are collected and with confidentiality and security provisions as set forth by applicable laws and regulations in the Grantee’s country and state of residence. Data processing operations will be performed minimizing the use of personal and identification data when such operations are unnecessary for the processing purposes sought. Data will be accessible within the Company’s organization only by those persons requiring access for purposes of the implementation, administration and operation of the Plan and for the Grantee’s participation in the Plan.

The Company and, if applicable, the Subsidiary employing the Grantee will transfer Data amongst themselves as necessary for the purpose of implementation, administration and management of the Grantee’s participation in the Plan, and the Company and, if applicable, the Subsidiary employing the Grantee may each further transfer Data to any third parties assisting the Company in the implementation, administration and management of the Plan. These recipients may be located in the European Economic Area, or elsewhere throughout the world, such as the United States. The Grantee hereby authorizes (where required under applicable law) them to receive, possess, use, retain and transfer the Data, in electronic or other form, for purposes of implementing, administering and managing the Grantee’s participation in the Plan, including any requisite transfer of such Data as may be required for the administration of the Plan and/or the subsequent holding of Shares on the Grantee’s behalf to a broker or other third party with whom the Grantee may elect to deposit any Shares acquired pursuant to the Plan.

The Grantee may, at any time, exercise his or her rights provided under applicable personal data protection laws, which may include the right to (a) obtain confirmation as to the existence of the Data, (b) verify the content, origin and accuracy of the Data, (c) request the integration, update, amendment, deletion, or blockage (for breach of applicable laws) of the Data, and (d) to oppose, for legal reasons, the collection, processing or transfer of the Data which is not necessary or required for the implementation, administration and/or operation of the Plan and the Grantee’s participation in the Plan. The Grantee may seek to exercise these rights by contacting the Grantee’s local HR manager or the Company’s Human Resources Department.

			COMMSCOPE, INC.

Date:			By:
			Print Name:
			Title:



			GRANTOR

Date:			By:
			Print Name:

Appendix A

Non-Competition and Confidentiality Covenants

By execution of the stock option agreement to which this Appendix A is attached (the “Stock Option Agreement”), the Grantee hereby agrees as follows:

1. Non-competition. The Grantee agrees that the Grantee will not, for a period of two years following his termination of employment as described in Section 6.2 of the Stock Option Agreement (the “Non-Competition Period”), directly or indirectly own, manage, operate, join, control, be employed by, or participate in the ownership, management, operation or control of, or be connected in any manner, including but not limited to holding, the positions of shareholder, director, officer, consultant, independent contractor, employee, partner, or investor, with any Competing Enterprise. For purposes of this paragraph, the term “Competing Enterprise” shall mean any person, corporation, partnership or other entity engaged in a business in the United States or any other geographic area in which the Company does business which is in competition with any of the businesses of the Company or any of its Affiliates as of the date of the termination of the Grantee’s employment with the Company and its Affiliates. Upon request at any time during the Non-Competition Period, the Grantee shall notify the Company of the Grantee’s then current employment status. As used herein, “Affiliate” shall mean the Company’s affiliated companies, divisions, subsidiaries, successors, predecessors and assigns.

2. Non-solicitation. During the Non-Competition Period, the Grantee shall not interfere with the Company’s and any of its Affiliate’s relationship with, or endeavor to entice away from the Company and any of its Affiliates, any person who at any time, during the period that the Grantee was employed by the Company or its Affiliates, was an employee or customer of the Company or any of its Affiliates or otherwise had a material business relationship with the Company or any of its Affiliates.

3. Proprietary Rights. The Grantee represents, warrants and covenants that all patents, patent applications, rights to inventions, copyright registrations and other license, trademark and trade name rights heretofore owned by the Grantee and relating to the business of the Company or any of its Affiliates have been or will be duly transferred to the Company on or prior to the date of termination of employment with the Company and its Affiliates.

4. Confidentiality; Return of Company Property. The Grantee agrees and understands that in the Grantee’s position with the Company and/or its Affiliates and performance of his or her responsibilities, duties and services for the Company and/or its Affiliates, as the case may be, the Grantee has been exposed to, and information relating to, the confidential affairs of the Company and/or its Affiliates, including but not limited to technical information, intellectual property, business and marketing plans, strategies, customer information, other information concerning the products, promotions, development, financing, expansion plans, business policies and practices of the Company and/or its Affiliates, and other forms of confidential information, trade secrets and/or confidential information in the nature of trade secrets of the Company and/or its Affiliates (“Confidential Information”). The Grantee acknowledges and represents that as of the time of execution of this Non-Competition and Confidentiality Agreement the Grantee has not disclosed, and agrees that at any time thereafter the Grantee will not disclose, Confidential Information, either directly or indirectly, to any third person or entity without the prior written consent of the Company and/or its Affiliates, as appropriate. This confidentiality covenant has no temporal, geographical or territorial restriction. Except as otherwise expressly agreed to by the Company or its Affiliates, as appropriate, on or promptly following the date of termination of the Grantee’s employment with the Company and its Affiliates, the Grantee will supply to the Company and/or its Affiliates, as appropriate, all property, keys, mobile phones, computer equipment, software data files, notes, memoranda, writings, lists, files, reports, customer lists, correspondence, tapes, disks, cards, surveys, maps, logs, machines, technical data or any other tangible product or document (and any copies, in whatever medium, thereof) which has been produced by, received by or otherwise submitted to the Grantee: (i) during his or her employment with the Company and/or its Affiliates; and (ii) in the case of a Grantee who was employed by Avaya, Inc. (“Avaya”), during his or her employment with Avaya (but only with respect to employment that related to the Connectivity Solutions business that was acquired by the Company and its Affiliates pursuant to the Asset Purchase Agreement by and among Avaya, the Company and CommScope Solutions Holdings, LLC (formerly SS Holdings, LLC) dated October 23, 2003). Any such data or property (including copies thereof) stored on computer, software data files or other equipment belonging to the Grantee (or to which the Grantee otherwise has lawful access after the date hereof) shall be deleted by the Grantee immediately following the termination of the Grantee’s employment with the Company and its Affiliates.

5. Non-Disparagement. The Grantee agrees not to make any written or oral statement which could disparage the goods, products, services of, employees, officers, directors or reputation of, the Company and its Affiliates.

6. Remedies. The Grantee agrees that any breach of the terms of this Appendix A would result in irreparable injury and damage to the Company and/or its Affiliates for which the Company and/or its Affiliates would have no adequate remedy at law; the Grantee therefore also agrees that in the event of said breach or any threat of breach, the Company and/or its Affiliates shall be entitled to an immediate injunction and restraining order to prevent such breach and/or threatened breach and/or continued breach by the Grantee and/or any and all persons and/or entities acting for and/or with the Grantee, without having to prove damages, and to all costs and expenses, including reasonable attorneys’ fees and costs, in addition to any other remedies to which the Company and/or its Affiliates may be entitled at law or in equity. The terms of this paragraph shall not prevent the Company and/or its Affiliates from pursuing any other available remedies for any breach or threatened breach hereof, including but not limited to the recovery of damages from the Grantee. The Grantee further agrees that the provisions of the covenant not to compete are reasonable. Should a court or arbitrator determine, however, that any provision of the covenant not to compete is unreasonable, either in period of time, geographical area, or otherwise, the parties hereto agree that the covenant should be interpreted and enforced to the maximum extent which such court or arbitrator deems reasonable.

The existence of any claim or cause of action by the Grantee against the Company and/or its Affiliates shall not constitute a defense to the enforcement by the Company and/or its Affiliates of the covenants and agreements of this Appendix A.

7. Miscellaneous. This Appendix A sets forth the entire understanding of the parties hereto with respect to the subject matter hereof and supersedes all prior agreements, written or oral, between them as to such subject matter, other than any confidentiality agreement, any agreement dealing with the assignment to the Company of patents, copyrights or other intellectual property or any other similar agreements.

EX-99.2 3 dc8k2ex99_2.htm dc8k2ex99_2.htm

EXHIBIT 99.2

FORM OF

COMMSCOPE, INC.

2006 LONG TERM INCENTIVE PLAN

EMPLOYEE PERFORMANCE SHARE UNIT AWARD AGREEMENT

(WITH RELATED DIVIDEND EQUIVALENT RIGHTS)

THIS AGREEMENT, made as of the ____ day of ________, 2009 (the “Date of Grant”), between CommScope, Inc., a Delaware corporation (the “Company”), and ____________ (the “Grantee”).

WHEREAS, the Company has adopted the CommScope, Inc. 2006 Long-Term Incentive Plan (the “Plan”) in order to provide an additional incentive to certain employees and directors of the Company and its Subsidiaries; and

WHEREAS, the Committee responsible for the administration of the Plan has determined to grant performance share units to the Grantee as provided herein;

NOW, THEREFORE, the parties hereto agree as follows:

1. Grant.

1.1 The Company hereby grants to the Grantee an award (the “Award”) of ___ performance share units (the “Performance Share Units”) and _____ dividend equivalent rights (the “Dividend Equivalent Rights”), each Performance Share Unit to be accompanied by one (1) related Dividend Equivalent Right. The Performance Share Units and Dividend Equivalent Rights granted pursuant to the Award shall be subject to the execution and return of this Agreement by the Grantee (or the Grantee’s estate, if applicable) to the Company. Subject to the terms of this Agreement, each Performance Share Unit represents the right to receive one (1) Share at the time and in the manner set forth in Section 7 hereof.

1.2 Each Dividend Equivalent Right represents the right to receive all of the cash dividends that are or would be payable with respect to the Share represented by the Performance Share Unit to which the Dividend Equivalent Right relates. With respect to each Dividend Equivalent Right, any such cash dividends shall be paid on the Vesting Date. The Dividend Equivalent Rights shall be subject to the same terms and conditions applicable to the Performance Share Units, including, without limitation, the forfeiture and vesting provisions contained in Sections 2 through 4, inclusive, of this Agreement. In the event that a Performance Share Unit is forfeited pursuant to Section 3 hereof, the related Dividend Equivalent Right shall also be forfeited.

1.3 This Agreement shall be construed in accordance and consistent with, and subject to, the provisions of the Plan (the provisions of which are hereby incorporated by reference) and, except as otherwise expressly set forth herein, the capitalized terms used in this Agreement shall have the same definitions as set forth in the Plan.

2. Vesting.

2.1 Except as provided in Sections 3 and 4 hereof, the Performance Share Units granted hereunder with respect to which the Performance Goals (as defined below) set forth in Section 2.2 have been satisfied will vest on the third (3rd) anniversary of the Date of Grant (the “Vesting Date”) provided the Grantee has remained in continuous employment from the Date of Grant to the Vesting Date.

2.2 The following table sets forth the percentage of Performance Share Units granted hereunder with respect to which the Performance Goals will be satisfied based on the Operating Income (the “Performance Goals”) for fiscal year 2009 (the “Performance Year”):

	< Minimum	Minimum	Target	Maximum	> Maximum
Operating Income	< $___	$___	$___	$___	> $___
Percent of Performance Share Units with respect to which Performance Goals are satisfied	0%	50%	100%*	150%	150%

*	The amount set forth in Section 1.1.

The percentage of Performance Share Units with respect to which the Performance Goals have been satisfied is determined by using a straight line interpolation rounded to the nearest whole number of Performance Share Units between 50% and 100% or between 100% and 150%, as applicable, depending on the Operating Income attained.

For purposes of this Agreement, “Operating Income” shall mean: “Operating Income (Loss),” as such item appears on the Company's Consolidated Statements of Operations for 2009, increased or reduced by each of the following to the extent that any such item is used to determine “Operating Income (Loss)”: (1) impairment charges for goodwill or other long lived assets including fixed assets and investments; (2) any acquisition or divestiture related expenses, gains or losses, including one-time start up and transition costs, amortization of any inventory related fair value adjustments, in process research and development write-offs, and other business acquisition purchase accounting adjustments; (3) any gains or losses on disposal of long lived assets including property, plant and equipment; (4) any restructuring costs; (5) amortization of purchased intangible assets; and (6) any income or charges related to the litigation with TruePosition, Inc. In addition, adjustments shall be made with respect to this determination to reflect any change in accounting standards that affect the calculation of Operating Income (Loss) as reflected on the Company's Consolidated Statements of Operations for 2009.

The Award will terminate as to any and all Performance Share Units with respect to which Performance Goals have not been satisfied as of the end of the Performance Year.

3. Termination of Employment.

3.1 Death or Disability. In the event of the Grantee’s death or Disability (i) during the Performance Year, 100% of the Award shall become immediately vested without regard to satisfaction of the Performance Goals, and (ii) following the completion of the Performance Year but prior to the Vesting Date, the number of Performance Share Units with respect to which the Performance Goals were satisfied for the Performance Year in accordance with Section 2, if any, shall become immediately vested.

3.2 Retirement. In the event that (i) the Grantee has completed 10 years of service for the Company, a Subsidiary or a Division, and the Grantee’s employment is terminated prior to the Vesting Date as a result of the Grantee’s voluntary retirement after attainment of age 55, or (ii) the Grantee’s employment is terminated prior to the Vesting Date as a result of the Grantee’s voluntary retirement after attainment of age 65, the “Pro Rata Portion” (as defined below) of the Award shall remain outstanding and the Pro Rata Portion of the number of Performance Share Units with respect to which the Performance Goals were satisfied for the Performance Year in accordance with Section 2, if any, will vest on the Vesting Date, provided the Grantee complies with the post-employment covenants described in Exhibit A, and the remainder of the Award shall immediately be forfeited. In the event of a breach by the Grantee of any of the post-employment covenants described in Exhibit A hereto, the entire Award shall immediately be forfeited. The “Pro Rata Portion” shall be equal to a fraction (not to exceed one), the numerator of which is the number of whole calendar months between the Date of Grant and the Grantee’s date of retirement and the denominator of which is 36 (rounded to the nearest thousandth).

3.3 Cause. In the event the Grantee’s employment is terminated for Cause prior to the Vesting Date, the Award shall immediately be forfeited. For purposes of this Agreement, “Cause” shall mean (i) in the case of a Grantee whose employment with the Company, a Subsidiary or a Division is subject to the terms of an employment agreement which includes a definition of “Cause,” the meaning set forth in such employment agreement during the period that such employment agreement remains in effect; and (ii) in all other cases, (a) the Grantee’s failure or refusal to perform such Grantee’s substantive duties or to follow the lawful directives of the Board or the board of directors of a Subsidiary, as applicable (or of any superior officer of the Company, a Subsidiary or a Division having direct supervisory authority over such Grantee); (b) the commission of an act of fraud, theft, breach of fiduciary obligation with respect to the Company, a Subsidiary or a Division or a violation of any material policies of the Company, a Subsidiary or a Division, as applicable, of which the Grantee has had prior notice; (c) dishonesty, willful misconduct, or gross negligence in the performance of any substantive duties; or (d) the indictment for, or conviction of or plea of guilty or nolo contendere to any felony (whether or not involving the Company, a Subsidiary or a Division).

3.4 Other Termination of Employment. If the employment of the Grantee is terminated (including the Grantee’s ceasing to be employed by a Subsidiary or a Division as a result of the sale of such Subsidiary or Division or an interest in such Subsidiary or Division) prior to the Vesting Date under any circumstance other than those set forth in Section 3.1, Section 3.2 and Section 3.3, the Award shall immediately be forfeited.

4. Effect of Change in Control.

Notwithstanding anything contained in this Agreement to the contrary, in the event of a Change in Control: (i) at any time during the Performance Year, 100% of the Award shall become immediately vested, without regard to satisfaction of the Performance Goals, and (ii) following the completion of the Performance Year but prior to the Vesting Date, the number of Performance Share Units with respect to which the Performance Goals were satisfied for the Performance Year in accordance with Section 2, if any, shall become immediately vested.

5. Non-transferability.

The Award may not be sold, transferred or otherwise disposed of and may not be pledged or otherwise hypothecated.

6. No Right to Continued Employment.

7. Issuance of Shares.

Except as provided in the following sentence, on the Vesting Date, or as soon thereafter as administratively practicable (but in no event later than 2 ½ months after the Vesting Date occurs), the Company shall issue Shares to the Grantee (or, if applicable, the Grantee’s estate) with respect to Performance Share Units that become vested (A) on the Vesting Date, (B) pursuant to Section 3.1 by reason of the Grantee’s Disability that does not constitute a Section 409A Disability (as defined below) or (C) pursuant to Section 4 by reason of a Change in Control that does not constitute a Section 409A Change in Control (as defined below). Shares with respect to Performance Share Units that become vested (A) pursuant to Section 3.1 by reason of the Grantee’s death, (B) pursuant to Section 3.1 by reason of the Grantee’s Disability that constitutes a “disability” within the meaning of Section 409A of the Code and the regulations and interpretive guidance issued thereunder (a “Section 409A Disability”) or (C) pursuant to Section 4 by reason of a Change in Control which also constitutes a change in control or effective control of the Company or a change in the ownership of a substantial portion of its assets, in each case within the meaning of Section 409A of the Code and the regulations and interpretive guidance issued thereunder (a “Section 409A Change in Control”), shall be issued upon the date such Performance Share Units become vested, or as soon thereafter as administratively practicable (but in no event later than 2 ½ months after the date the Performance Share Unit becomes vested). Notwithstanding anything to the contrary contained herein, no Shares may be transferred to any person other than the Grantee unless such other person presents documentation to the Committee, which proves to the Committee to its reasonable satisfaction such person’s right to the transfer.

8. Withholding of Taxes.

Prior to the delivery to the Grantee (or the Grantee’s estate, if applicable) of Shares pursuant to Sections 1 and 7 hereof, the Grantee (or the Grantee’s estate) shall pay, or make arrangements acceptable to the Company to pay, the federal, state and local income taxes and other amounts as may be required by law to be withheld by the Company (the “Withholding Taxes”) with respect to such Shares. Approximately sixty (60) days prior to any Vesting Date, the Company will advise the Grantee (or the Grantee’s estate, if applicable) of any alternatives that may be available for the payment of Withholding Taxes, and, if there is more than one alternative, will provide the Grantee (or the Grantee’s estate) with a form with which the Grantee (or the Grantee’s estate) may elect from among the alternatives made available for the purpose of paying the Withholding Taxes (“Tax Election”). If a Tax Election is provided, prior to the delivery of Shares, the Grantee (or the Grantee’s estate) shall make a written election specifying the method by which the Grantee (or the Grantee’s estate) will pay the Withholding Taxes by completing and delivering the form of Tax Election in the manner specified in the form of Tax Election; provided, that, for Grantees who are subject to Section 16 of the Exchange Act, one of the alternatives to satisfy all or any portion of the Withholding Taxes shall always be that the Grantee may elect to have withheld a number of whole Shares otherwise deliverable to the Grantee and having a Fair Market Value equal to the Withholding Taxes.

“Fair Market Value” shall mean (i) if the Shares are listed for trading on the New York Stock Exchange, the closing price at the close of the primary trading session of the Shares on such date on the New York Stock Exchange, or if there has been no such closing price of the Shares on such date, on the next preceding date on which there was such a closing price, (ii) if the Shares are not so listed, but are listed on another national securities exchange, the closing price at the close of the primary trading session of the Shares on such date on such exchange, or if there has been no such closing price of the Shares on such date, on the next preceding date on which there was such a closing price, (iii) if the Shares are not listed for trading on the New York Stock Exchange or on another national securities exchange, the last sale price at the end of normal market hours of the Shares on such date as quoted on the National Association of Securities Dealers Automated Quotation System (“NASDAQ”) or, if no price shall have been so quoted for such date, on the next preceding date for which such price was so quoted, or (iv) if the Shares are not listed for trading on a national securities exchange or are not authorized for quotation on NASDAQ, the fair market value of the Shares as determined in good faith by the Committee.

9. Grantee Bound by the Plan.

The Grantee hereby acknowledges receipt of a copy of the Plan and agrees to be bound by all the terms and provisions thereof.

10. Modification of Agreement.

This Agreement may be modified, amended, suspended or terminated, and any terms or conditions may be waived, but only by a written instrument executed by the parties hereto.

11. Severability.

12. Governing Law.

The validity, interpretation, construction and performance of this Agreement shall be governed by the laws of the State of Delaware without giving effect to the conflicts of laws principles thereof.

13. Successors in Interest.

This Agreement shall inure to the benefit of and be binding upon any successor to the Company. This Agreement shall inure to the benefit of the Grantee’s legal representatives. All obligations imposed upon the Grantee and all rights granted to the Company under this Agreement shall be binding upon the Grantee’s heirs, executors, administrators and successors.

14. Resolution of Disputes.

15.

Consent to Jurisdiction.

16.

Data Privacy Consent.

Pursuant to applicable personal data protection laws, the Company hereby notifies the Grantee of the following in relation to the Grantee’s personal data and the collection, processing and transfer of such data in relation to the Company’s grant of this Award and the Grantee’s participation in the Plan. The collection, processing and transfer of the Grantee’s personal data is necessary for the Company’s administration of the Plan and the Grantee’s participation in the Plan. The Grantee’s denial and/or objection to the collection, processing and transfer of personal data may affect the Grantee’s participation in the Plan. As such, the Grantee voluntarily acknowledges and consents (where required under applicable law) to the collection, use, processing and transfer of personal data as described herein.

		COMMSCOPE, INC.

		By:

		Name:

		Title:

		GRANTEE

Exhibit A

Non-Competition and Confidentiality Covenants

By execution of the performance unit award agreement to which this Exhibit A is attached (the “Performance Share Unit Award Agreement”), the Grantee hereby agrees as follows:

1. Non-competition. The Grantee agrees that the Grantee will not, for a period of two years following his termination of employment as described in Section 3.2 of the Performance Share Unit Agreement (the “Non-Competition Period”), directly or indirectly own, manage, operate, join, control, be employed by, or participate in the ownership, management, operation or control of, or be connected in any manner, including but not limited to holding, the positions of shareholder, director, officer, consultant, independent contractor, employee, partner, or investor, with any Competing Enterprise. For purposes of this paragraph, the term “Competing Enterprise” shall mean any person, corporation, partnership or other entity engaged in a business in the United States or any other geographic area in which the Company does business which is in competition with any of the businesses of the Company or any of its Affiliates as of the date of the termination of the Grantee’s employment with the Company and its Affiliates. Upon request at any time during the Non-Competition Period, the Grantee shall notify the Company of the Grantee’s then current employment status. As used herein, “Affiliate” shall mean the Company’s affiliated companies, divisions, subsidiaries, successors, predecessors and assigns.

4. Confidentiality; Return of Company Property. The Grantee agrees and understands that in the Grantee’s position with the Company and/or its Affiliates and performance of his or her responsibilities, duties and services for the Company and/or its Affiliates, as the case may be, the Grantee has been exposed to, and information relating to, the confidential affairs of the Company and/or its Affiliates, including but not limited to technical information, intellectual property, business and marketing plans, strategies, customer information, other information concerning the products, promotions, development, financing, expansion plans, business policies and practices of the Company and/or its Affiliates, and other forms of confidential information, trade secrets and/or confidential information in the nature of trade secrets of the Company and/or its Affiliates (“Confidential Information”). The Grantee acknowledges and represents that as of the time of execution of this Non-Competition and Confidentiality Agreement the Grantee has not disclosed, and agrees that at any time thereafter the Grantee will not disclose, Confidential Information, either directly or indirectly, to any third person or entity without the prior written consent of the Company and/or its Affiliates, as appropriate. This confidentiality covenant has no temporal, geographical or territorial restriction. Except as otherwise expressly agreed to by the Company or its Affiliates, as appropriate, on or promptly following the date of termination of the Grantee’s employment with the Company and its Affiliates, the Grantee will supply to the Company and/or its Affiliates, as appropriate, all property, keys, mobile phones, computer equipment, software data files, notes, memoranda, writings, lists, files, reports, customer lists, correspondence, tapes, disks, cards, surveys, maps, logs, machines, technical data or any other tangible product or document which has been produced by, received by or otherwise submitted to the Grantee: (i) during his or her employment with the Company and/or its Affiliates; and (ii) in the case of a Grantee who was employed by Avaya, Inc. (“Avaya”), during his or her employment with Avaya (but only with respect to employment that related to the Connectivity Solutions business that was acquired by the Company and its Affiliates pursuant to the Asset Purchase Agreement by and among Avaya, the Company and CommScope Solutions Holdings, LLC (formerly SS Holdings, LLC) dated October 23, 2003). Any such data or property (including copies thereof) stored on computer, software data files or other equipment belonging to the Grantee (or to which the Grantee otherwise has lawful access after the date hereof) shall be deleted by the Grantee immediately following the termination of the Grantee’s employment with the Company and its Affiliates.

6. Remedies. The Grantee agrees that any breach of the terms of this Exhibit A would result in irreparable injury and damage to the Company and/or its Affiliates for which the Company and/or its Affiliates would have no adequate remedy at law; the Grantee therefore also agrees that in the event of said breach or any threat of breach, the Company and/or its Affiliates shall be entitled to an immediate injunction and restraining order to prevent such breach and/or threatened breach and/or continued breach by the Grantee and/or any and all persons and/or entities acting for and/or with the Grantee, without having to prove damages, and to all costs and expenses, including reasonable attorneys’ fees and costs, in addition to any other remedies to which the Company and/or its Affiliates may be entitled at law or in equity. The terms of this paragraph shall not prevent the Company and/or its Affiliates from pursuing any other available remedies for any breach or threatened breach hereof, including but not limited to the recovery of damages from the Grantee. The Grantee further agrees that the provisions of the covenant not to compete are reasonable. Should a court or arbitrator determine, however, that any provision of the covenant not to compete is unreasonable, either in period of time, geographical area, or otherwise, the parties hereto agree that the covenant should be interpreted and enforced to the maximum extent which such court or arbitrator deems reasonable.

7. Miscellaneous. This Exhibit A sets forth the entire understanding of the parties hereto with respect to the subject matter hereof and supersedes all prior agreements, written or oral, between them as to such subject matter, other than any confidentiality agreement, any agreement dealing with the assignment to the Company of patents, copyrights or other intellectual property or any other similar agreements.

EX-99.3 4 dc8k2ex99_3.htm dc8k2ex99_3.htm

EXHIBIT 99.3

FORM OF

COMMSCOPE, INC.

2006 LONG TERM INCENTIVE PLAN

EMPLOYEE RESTRICTED STOCK UNIT AGREEMENT

(WITH RELATED DIVIDEND EQUIVALENT RIGHTS)

THIS AGREEMENT, made as of the ____ day of ________, 2009 (the “Date of Grant”), between CommScope, Inc., a Delaware corporation (the “Company”), and _________ (the “Grantee”).

WHEREAS, the Committee responsible for the administration of the Plan has determined to grant restricted stock units to the Grantee as provided herein;

NOW, THEREFORE, the parties hereto agree as follows:

1. Grant.

1.1 The Company hereby grants to the Grantee an award (the “Award”) of ___ restricted stock units (the “Restricted Stock Units”) and ____ dividend equivalent rights (the “Dividend Equivalent Rights”), each Restricted Stock Unit to be accompanied by one (1) related Dividend Equivalent Right. The Restricted Stock Units and Dividend Equivalent Rights granted pursuant to the Award shall be subject to the execution and return of this Agreement by the Grantee (or the Grantee’s estate, if applicable) to the Company. Subject to the terms of this Agreement, each Restricted Stock Unit represents the right to receive one (1) Share at the time and in the manner set forth in Section 7 hereof.

1.2 Each Dividend Equivalent Right represents the right to receive all of the cash dividends that are or would be payable with respect to the Shares represented by the Restricted Stock Unit to which the Dividend Equivalent Right relates. With respect to each Dividend Equivalent Right, any such cash dividends shall be paid on the Vesting Date. The Dividend Equivalent Rights shall be subject to the same terms and conditions applicable to the Restricted Stock Units, including, without limitation, the forfeiture and vesting provisions contained in Sections 2 through 4, inclusive, of this Agreement. In the event that the Restricted Stock Units are forfeited pursuant to Section 3 hereof, the related Dividend Equivalent Right shall also be forfeited.

2. Vesting.

Except as provided in Sections 3 and 4 hereof, 100% of the Restricted Stock Units granted hereunder will vest on the third (3rd) anniversary of the Date of Grant (the “Vesting Date”) provided the Grantee has remained in continuous employment from the Date of Grant to the Vesting Date.

3. Termination of Employment.

3.1 Death or Disability. In the event of the Grantee’s death or Disability prior to the Vesting Date, 100% of the Award shall become immediately vested.

3.2 Retirement. In the event that (i) the Grantee has completed 10 years of service for the Company, a Subsidiary or a Division, and the Grantee’s employment is terminated prior to the Vesting Date as a result of the Grantee’s voluntary retirement after attainment of age 55, or (ii) the Grantee’s employment is terminated prior to the Vesting Date as a result of the Grantee’s voluntary retirement after attainment of age 65, the “Pro Rata Portion” (as defined below) of the Award shall remain outstanding and shall be eligible to vest on the Vesting Date if the Grantee complies with the post-employment covenants described in Exhibit A, and the remainder of the Award shall immediately be forfeited. In the event of a breach by the Grantee of any of the post-employment covenants described in Exhibit A hereto, the entire Award shall immediately be forfeited. The “Pro Rata Portion” shall be equal to a fraction (not to exceed one), the numerator of which is the number of whole calendar months between the Date of Grant and the Grantee’s date of retirement and the denominator of which is 36 (rounded to the nearest thousandth).

4. Effect of Change in Control.

Notwithstanding anything contained in this Agreement to the contrary, in the event of a Change in Control at any time prior to the Vesting Date the Award shall become immediately vested.

5. Non-transferability.

The Award may not be sold, transferred or otherwise disposed of and may not be pledged or otherwise hypothecated.

6. No Right to Continued Employment.

7. Issuance of Shares.

Except as provided in the following sentence, on the Vesting Date, or as soon thereafter as administratively practicable (but in no event later than 2 ½ months after the Vesting Date occurs), the Company shall issue Shares to the Grantee (or, if applicable, the Grantee’s estate) with respect to the Restricted Stock Units that becomes vested (A) on the Vesting Date, (B) pursuant to Section 3.1 by reason of the Grantee’s Disability that does not constitute a Section 409A Disability (as defined below) or (C) pursuant to Section 4 by reason of a Change in Control that does not constitute a Section 409A Change in Control (as defined below). Shares with respect to Restricted Stock Units that become vested (A) pursuant to Section 3.1 by reason of the Grantee’s death, (B) pursuant to Section 3.1 by reason of the Grantee’s Disability that constitutes a “disability” within the meaning of Section 409A of the Code and the regulations and interpretive guidance issued thereunder (a “Section 409A Disability”) or (C) pursuant to Section 4 by reason of a Change in Control which also constitutes a change in control or effective control of the Company or a change in the ownership of a substantial portion of its assets, in each case within the meaning of Section 409A of the Code and the regulations and interpretive guidance issued thereunder (a “Section 409A Change in Control”), shall be issued upon the date such Restricted Stock Units become vested, or as soon thereafter as administratively practicable (but in no event later than 2 ½ months after the date the Restricted Stock Units become vested). Notwithstanding anything to the contrary contained herein, no Shares may be transferred to any person other than the Grantee unless such other person presents documentation to the Committee, which proves to the Committee to its reasonable satisfaction such person’s right to the transfer.

8. Withholding of Taxes.

9. Grantee Bound by the Plan.

The Grantee hereby acknowledges receipt of a copy of the Plan and agrees to be bound by all the terms and provisions thereof.

10. Modification of Agreement.

This Agreement may be modified, amended, suspended or terminated, and any terms or conditions may be waived, but only by a written instrument executed by the parties hereto.

11. Severability.

12. Governing Law.

The validity, interpretation, construction and performance of this Agreement shall be governed by the laws of the State of Delaware without giving effect to the conflicts of laws principles thereof.

13. Successors in Interest.

This Agreement shall inure to the benefit of and be binding upon any successor to the Company. This Agreement shall inure to the benefit of the Grantee’s legal representatives. All obligations imposed upon the Grantee and all rights granted to the Company under this Agreement shall be binding upon the Grantee’s heirs, executors, administrators and successors.

14. Resolution of Disputes.

15.	Consent to Jurisdiction.

16.	Data Privacy Consent.

Pursuant to applicable personal data protection laws, the Company hereby notifies the Grantee of the following in relation to the Grantee’s personal data and the collection, processing and transfer of such data in relation to the Company’s grant of this Award and the Grantee’s participation in the Plan. The collection, processing and transfer of the Grantee’s personal data is necessary for the Company’s administration of the Plan and the Grantee’s participation in the Plan. The Grantee’s denial and/or objection to the collection, processing and transfer of personal data may affect the Grantee’s participation in the Plan. As such, the Grantee voluntarily acknowledges and consents (where required under applicable law) to the collection, use, processing and transfer of personal data as described herein.

		COMMSCOPE, INC.

		By:

		Name:

		Title:

		GRANTEE

Exhibit A

Non-Competition and Confidentiality Covenants

By execution of the restricted stock unit agreement to which this Exhibit A is attached (the “Restricted Stock Unit Agreement”), the Grantee hereby agrees as follows:

1. Non-competition. The Grantee agrees that the Grantee will not, for a period of two years following his termination of employment as described in Section 3.2 of the Restricted Stock Unit Agreement (the “Non-Competition Period”), directly or indirectly own, manage, operate, join, control, be employed by, or participate in the ownership, management, operation or control of, or be connected in any manner, including but not limited to holding, the positions of shareholder, director, officer, consultant, independent contractor, employee, partner, or investor, with any Competing Enterprise. For purposes of this paragraph, the term “Competing Enterprise” shall mean any person, corporation, partnership or other entity engaged in a business in the United States or any other geographic area in which the Company does business which is in competition with any of the businesses of the Company or any of its Affiliates as of the date of the termination of the Grantee’s employment with the Company and its Affiliates. Upon request at any time during the Non-Competition Period, the Grantee shall notify the Company of the Grantee’s then current employment status. As used herein, “Affiliate” shall mean the Company’s affiliated companies, divisions, subsidiaries, successors, predecessors and assigns.

4. Confidentiality; Return of Company Property. The Grantee agrees and understands that in the Grantee’s position with the Company and/or its Affiliates and performance of his or her responsibilities, duties and services for the Company and/or its Affiliates, as the case may be, the Grantee has been exposed to, and information relating to, the confidential affairs of the Company and/or its Affiliates, including but not limited to technical information, intellectual property, business and marketing plans, strategies, customer information, other information concerning the products, promotions, development, financing, expansion plans, business policies and practices of the Company and/or its Affiliates, and other forms of confidential information, trade secrets and/or confidential information in the nature of trade secrets of the Company and/or its Affiliates (“Confidential Information”). The Grantee acknowledges and represents that as of the time of execution of this Non-Competition and Confidentiality Agreement the Grantee has not disclosed, and agrees that at any time thereafter the Grantee will not disclose, Confidential Information, either directly or indirectly, to any third person or entity without the prior written consent of the Company and/or its Affiliates, as appropriate. This confidentiality covenant has no temporal, geographical or territorial restriction. Except as otherwise expressly agreed to by the Company or its Affiliates, as appropriate, on or promptly following the date of termination of the Grantee’s employment with the Company and its Affiliates, the Grantee will supply to the Company and/or its Affiliates, as appropriate, all property, keys, mobile phones, computer equipment, software data files, notes, memoranda, writings, lists, files, reports, customer lists, correspondence, tapes, disks, cards, surveys, maps, logs, machines, technical data or any other tangible product or document which has been produced by, received by or otherwise submitted to the Grantee: (i) during his or her employment with the Company and/or its Affiliates; and (ii) in the case of a Grantee who was employed by Avaya, Inc. (“Avaya”), during his or her employment with Avaya (but only with respect to employment that related to the Connectivity Solutions business that was acquired by the Company and its Affiliates pursuant to the Asset Purchase Agreement by and among Avaya, the Company and CommScope Solutions Holdings, LLC (formerly SS Holdings, LLC) dated October 23, 2003). Any such data or property (including copies thereof) stored on computer, software data files or other equipment belonging to the Grantee (or to which the Grantee otherwise has lawful access after the date hereof) shall be deleted by the Grantee immediately following the termination of the Grantee’s employment with the Company and its Affiliates.

EX-99.4 5 dc8k2ex99_4.htm dc8k2ex99_4.htm

EXHIBIT 99.4

COMMSCOPE, INC.

ANNUAL INCENTIVE PLAN

(as amended effective March 24, 2009)

1. Purpose

The purpose of the Annual Incentive Plan is to enhance CommScope, Inc.’s ability to attract, motivate, reward and retain employees, to strengthen their commitment to the success of the Company and to align their interests with those of the Company’s stockholders by providing additional compensation to designated employees of the Company based on the achievement of performance objectives. To this end, the Annual Incentive Plan provides a means of annually rewarding participants primarily based on the performance of the Company and its Operating Units and secondarily based on the achievement of personal performance objectives. The adoption of this Plan as it relates to Executive Officers is subject to the approval of the stockholders of the Company.

2. Definitions

(a) “Accredited Investor” shall have the meaning ascribed to such term in Rule 501 of Regulation D of the Securities Act of 1933, as amended.

(b) “Award” shall mean the incentive award earned by a Participant under the Plan for any Performance Period.

(c) “Base Salary” shall mean the Participant’s annual base salary actually paid by the Company and received by the Participant during the applicable Performance Period. Annual base salary does not include (i) Awards under the Plan, (ii) long-term incentive awards, (iii) signing bonuses or any similar bonuses, (iv) cash payments received pursuant to the Company’s Retirement Savings Plan, (v) imputed income from such programs as executive life insurance, or (vi) nonrecurring earnings such as moving expenses, and is based on salary earnings before reductions for such items as contributions under Section 401(k) of the Internal Revenue Code of 1986, as amended.

(d) “Beneficial Owner”, “Beneficially Owned” and “Beneficially Owning” shall have the meanings applicable under Rule 13d-3 promulgated under the 1934 Act.

(e) “”Board” shall mean the Board of Directors of the Company.

(f) “CEO” shall mean the Chief Executive Officer of the Company.

(g) “Change in Control” means the occurrence of any of the following:

(1) An acquisition (other than directly from the Company) of any Voting Securities by any Person, immediately after which such Person has Beneficial Ownership of more than thirty-three percent (33%) of (i) the then-outstanding Shares or (ii) the combined voting power of the Company’s then-outstanding Voting Securities; provided, however, that in determining whether a Change in Control has occurred pursuant to this paragraph (a), the acquisition of Shares or Voting Securities in a Non-Control Acquisition (as hereinafter defined) shall not constitute a Change in Control. A “Non-Control Acquisition” shall mean an acquisition by (i) an employee benefit plan (or a trust forming a part thereof) maintained by (A) the Company or (B) any corporation or other Person the majority of the voting power, voting equity securities or equity interest of which is owned, directly or indirectly, by the Company (for purposes of this definition, a “Related Entity”), (ii) the Company or any Related Entity, or (iii) any Person in connection with a Non-Control Transaction (as hereinafter defined);

(2) The individuals who, as of the effective date of the Plan, are members of the Board (the “Incumbent Board”), cease for any reason to constitute at least two-thirds of the members of the Board or, following a Merger (as hereinafter defined), the board of directors of (i) the corporation resulting from such Merger (the “Surviving Corporation”), if fifty percent (50%) or more of the combined voting power of the then-outstanding voting securities of the Surviving Corporation is not Beneficially Owned, directly or indirectly, by another Person (a “Parent Corporation”) or (ii) if there is one or more than one Parent Corporation, the ultimate Parent Corporation; provided, however, that, if the election, or nomination for election by the Company’s common shareholders, of any new director was approved by a vote of at least two-thirds of the Incumbent Board, such new director shall, for purposes of the Plan, be considered a member of the Incumbent Board; and provided, further, however, that no individual shall be considered a member of the Incumbent Board if such individual initially assumed office as a result of an actual or threatened solicitation of proxies or consents by or on behalf of a Person other than the Board (a “Proxy Contest”), including by reason of any agreement intended to avoid or settle any Proxy Contest; or

(3) The consummation of:

(i) A merger, consolidation or reorganization (x) with or into the Company or (y) in which securities of the Company are issued (a “Merger”), unless such Merger is a “Non-Control Transaction.” A “Non-Control Transaction” shall mean a Merger in which:

(A) the shareholders of the Company immediately before such Merger own directly or indirectly immediately following such Merger at least a majority of the combined voting power of the outstanding voting securities of (1) the Surviving Corporation, if there is no Parent Corporation or (2) if there is one or more than one Parent Corporation, the ultimate Parent Corporation;

(B) the individuals who were members of the Incumbent Board immediately prior to the execution of the agreement providing for such Merger constitute at least a majority of the members of the board of directors of (1) the Surviving Corporation, if there is no Parent Corporation, or (2) if there is one or more than one Parent Corporation, the ultimate Parent Corporation; and

(C) no Person other than (1) the Company or another corporation that is a party to the agreement of Merger, (2) any Related Entity, or (3) any employee benefit plan (or any trust forming a part thereof) that, immediately prior to the Merger, was maintained by the Company or any Related Entity, or (4) any Person who, immediately prior to the Merger had Beneficial Ownership of thirty-three percent (33%) or more of the then outstanding Shares or Voting Securities, has Beneficial Ownership, directly or indirectly, of thirty-three percent (33%) or more of the combined voting power of the outstanding voting securities or common stock of (x) the Surviving Corporation, if there is no Parent Corporation, or (y) if there is one or more than one Parent Corporation, the ultimate Parent Corporation;

(ii) A complete liquidation or dissolution of the Company; or

(iii) The sale or other disposition of all or substantially all of the assets of the Company and its Subsidiaries taken as a whole to any Person (other than (x) a transfer to a Related Entity or (y) the distribution to the Company’s shareholders of the stock of a Related Entity or any other assets).

Notwithstanding the foregoing, a Change in Control shall not be deemed to occur solely because any Person (the “Subject Person”) acquired Beneficial Ownership of more than the permitted amount of the then outstanding Shares or Voting Securities as a result of the acquisition of Shares or Voting Securities by the Company which, by reducing the number of Shares or Voting Securities then outstanding, increases the proportional number of shares Beneficially Owned by the Subject Persons; provided that if a Change in Control would occur (but for the operation of this sentence) as a result of the acquisition of Shares or Voting Securities by the Company and, after such share acquisition by the Company, the Subject Person becomes the Beneficial Owner of any additional Shares or Voting Securities and such Beneficial Ownership increases the percentage of the then outstanding Shares or Voting Securities Beneficially Owned by the Subject Person, then a Change in Control shall occur.

(h) “Code” shall mean the Internal Revenue Code of 1986, as amended.

(i) “Committee” shall mean the Compensation Committee of the Board; provided, however, that with respect to Employees who are not Executive Officers, the Compensation Committee may delegate to the CEO the authority and responsibility to administer the Plan to the same extent as the Compensation Committee (or to such lesser extent as the Compensation Committee may provide) and if the Compensation Committee so delegates its authority and responsibility, references herein to the Committee shall be deemed to refer to the CEO to the extent such authority and responsibility has been so delegated.

(j) “Company” shall mean CommScope, Inc., its successors and assigns.

(k) “Disability” shall mean permanent disability, as provided in the Company’s long-term disability plan.

(l) “Effective Date” shall mean the date that the Plan is adopted by the Board.

(m) “Employee” shall mean any person (including an officer) employed by the Company or any of its subsidiaries on a full-time salaried basis.

(n) “Executive Officer” shall mean, for any Performance Period, an Employee who (i) as of the beginning of the Performance Period is an officer subject to Section 16 of the 1934 Act, and (ii) who, prior to determining Target Awards for the Performance Period pursuant to Section 5(a) of the Plan, the Committee designates as an Executive Officer for purposes of this Plan. If the Committee does not make the designation in clause (ii) for a Performance Period, all Employees described in clause (i) shall be deemed to be Executive Officers for purposes of this Plan.

(o) “Financial Target”, for any Performance Period, may be expressed in terms of (i) stock price, (ii) earnings per share, (iii) operating income, (iv) return on equity or assets, (v) cash flow, (vi) earnings before interest, tax, depreciation and amortization (EBITDA), (vii) revenues, (viii) overall revenue or sales growth, (ix) expense reduction or management, (x) market position, (xi) total shareholder return, (xii) return on investment, (xiii) earnings before interest and taxes (EBIT), (xiv) net income, (xv) return on net assets, (xvi) economic value added, (xvii) shareholder value added, (xviii) cash flow return on investment, (xix) net operating profit, (xx) net operating profit after tax, (xxi) return on capital, (xxii) return on invested capital, or (xxiii) any combination, including one or more ratios, of the foregoing. Financial Targets may be expressed as a combination of Company and/or Operating Unit performance goals and may be absolute or relative (to prior performance or to the performance of one or more other entities or external indices) and may be expressed in terms of a progression within a specified range.

(p) “Financial Target Award Earned”, for any Performance Period, shall mean the percentage of Target Awards earned based on the Company’s and/or, if applicable, an Operating Unit’s achievement of Financial Target(s) for that Performance Period.

(q) “1934 Act” shall mean the Securities Exchange Act of 1934, as amended.

(r) “Operating Unit”, for any Performance Period, shall mean a division, Subsidiary, group, product line or product line grouping for which an income statement reflecting sales and operating income is produced.

(s) “Participant”, for any Performance Period, shall mean an Employee selected to participate in the Plan for such Performance Period.

(t) “Performance-Based Compensation” shall mean any Award that is intended to constitute “performance based compensation” within the meaning of Section 162(m)(4)(C) of the Code and the regulations promulgated thereunder.

(u) “Performance Period” shall mean the fiscal year of the Company or such time period designated by the Committee at the time that Financial Targets are established and during which the performance of the Company and/or Operating Units will be measured.

(v) “Person” shall mean a person within the meaning of Sections 13(d) and 14(d) of the 1934 Act.

(w) ”Personal Performance Percentage”, with respect to Participants (other than Executive Officers) for any Performance Period, shall mean the percentage based on the Participant’s personal performance, as determined in accordance with Section 5(e) of the Plan.

(x) “Plan” shall mean this CommScope, Inc. Annual Incentive Plan, as from time to time amended and in effect.

(y) “Retirement” shall mean (i) retirement at or after age 55 and the completion of 10 years of service with the Company or any of its Subsidiaries, (ii) retirement at or after age 65 or (iii) early retirement with the prior written approval of the Company.

(z) “Schedules” for any Performance Period, shall mean the schedules described in Section 5(a) of the Plan.

(aa) “Subsidiary” shall mean a corporation as defined in Section 424(f) of the Internal Revenue Code of 1986, as amended, with the Company being treated as the employer corporation for purposes of this definition.

(bb) “Target Award”, for any Participant with respect to any Performance Period, shall mean the Participant’s Base Salary multiplied by his or her Target Award Percentage.

(cc) “Target Award Percentage” for any Participant with respect to any Performance Period, shall mean the percentage of the Participant’s Base Salary that the Participant would earn as an Award for that Performance Period if each of the Financial Target Award Earned and Personal Performance Percentage (if applicable) for that Performance Period is 100%, and shall be determined by the Committee based on the Participant’s responsibility level or the position or positions held during the Performance Period; provided, however, that if any Participant other than an Executive Officer held more than one position during the Performance Period, then the Committee may designate different Target Award Percentages with respect to each position and the Award will be pro-rated to reflect the number of days during which such Participant had each Target Award Percentage.

(dd) “Voting Securities” shall mean, with the voting securities of the Company.

3. Eligibility

Generally, all Employees are eligible to participate in the Plan for any Performance Period. However, participation may be limited to those Employees who, because of their significant impact on the current and future success of the Company, the Committee selects, in accordance with Section 5 of this Plan, to participate in the Plan for that Performance Period. Notwithstanding the foregoing, the CEO shall participate in the Plan in every Performance Period.

To be eligible to receive an Award in respect of any Performance Period an Employee shall have had at least three months active tenure during such Performance Period and be actively employed by the Company on the Award payment date. The Committee may approve, for Participants other than the Executive Officers and in accordance with Sections 7 and 8 of this Plan, exceptions for special circumstances.

If an Employee other than an Executive Officer, becomes a Participant during a Performance Period, such Participant’s Award will be prorated based on the number of days that he or she is a Participant, unless, with respect to Participants other than Executive Officers, the Committee otherwise determines.

4. Administration

The administration of the Plan shall be consistent with the purpose and the terms of the Plan. The Plan shall be administered by the Committee. Each member of the Committee shall be an “outside director” within the meaning of Treasury Regulations promulgated under Section 162(m) of the Code; provided that if the Compensation Committee has delegated to the CEO any authority or responsibility to administer the Plan with respect to Employees who are not Executive Officers, the CEO shall not be required to be an “outside director.” The Committee shall have full authority to establish the rules and regulations relating to the Plan, to interpret the Plan and those rules and regulations, to select Participants in the Plan, to determine the Company’s and, if applicable, each Operating Unit’s Financial Target(s) and each Participant’s Target Award Percentage for each Performance Period, to approve all the Awards, to decide the facts in any case arising under the Plan and to make all other determinations and to take all other actions necessary or appropriate for the proper administration of the Plan, including the delegation of such authority or power, where appropriate; provided, however, that the Committee shall not be authorized to increase the amount of the Award payable to a Participant that is an Executive Officer that would otherwise be payable pursuant to the terms of the Plan. The Committee may in its sole discretion decrease the amount of an Award that would otherwise be payable to a Participant pursuant to the terms of the Plan, (and no such reduction may increase the Award payable to any other Participant) and, provided, further, that the Committee shall only exercise such discretion over the Plan and the Awards granted thereunder, to the extent permitted under Section 162(m) of the Code and the regulations thereunder without adversely affecting the treatment of any Executive Officer’s Award as Performance-Based Compensation.

The Committee’s administration of the Plan, including all such rules and regulations, interpretations, selections, determinations, approvals, decisions, delegations, amendments, terminations and other actions, shall be final and binding on the Company, the Subsidiaries, their respective stockholders and all employees of the Company and the Subsidiaries, including the Participants and their respective beneficiaries.

5. Determination of Awards

(a) Prior to, or as soon as practicable following, the commencement of each Performance Period, the Committee shall determine the Employees who shall be Participants during that Performance Period and determine each Participant’s Target Award Percentage. The Committee shall also establish the Financial Target(s) for that Performance Period (which, with respect to Executive Officers for that Performance Period, shall be established in writing by the earlier of (1) the date on which one-quarter of the Performance Period has elapsed or (2) the date which is 90 days after the commencement of the Performance Period, and in any event while the performance relating to the Financial Target(s) remains substantially uncertain). The Participants, each Participant’s Target Award Percentage and the Financial Targets for each Performance Period shall be set forth on a Schedule. The Company shall notify each Participant of his or her Target Award Percentage and the applicable Financial Targets for the Performance Period.

(b) Generally, a Participant earns an Award for a Performance Period based on the Company’s and/or his or her Operating Unit’s achievement of applicable Financial Target(s). In addition, the Award for any Participant (other than an Executive Officer) may be adjusted based on the Participant’s Personal Performance Percentage. The Committee may determine that different Financial Targets are applicable to different Participants, groups of Participants, Operating Units or groups of Operating Units with respect to a specific Performance Period. The Committee may also establish a minimum threshold of Company or Operating Unit performance which must be achieved in order for any portion of an Award to be earned for that Performance Period, provided, with respect to Executive Officers for that Performance Period, such threshold is established by the earlier of (1) the date on which one-quarter of the Performance Period has elapsed or (2) the date which is 90 days after the commencement of the Performance Period, and in any event while the performance relating to the Financial Target(s) remains substantially uncertain. Notwithstanding the foregoing, if in any Performance Period a minimum threshold of Company and/or Operating Unit performance is established and the Company’s and/or any Operating Unit’s actual performance as measured against that minimum threshold would otherwise preclude the earning of Awards for that Performance Period, the Committee may upon consideration of the events of the Performance Period, determine that Awards may be earned by Participants (other than Executive Officers) for that Performance Period.

(d) Awards shall be earned by Participants in accordance with such formula or formulas determined by the Committee consistent with the provisions of this Plan.

(e) Personal Performance Percentage. Executive Officers are not eligible for an adjustment based on personal performance. Each other Participant’s performance may be evaluated and a Personal Performance Percentage for such Participant may be recommended for approval by the Committee. If applicable, the Personal Performance Percentage may range from 0 to 120 percent to reflect the Participant’s personal performance during the Performance Period; provided, however, that the application of this Section 5(e) shall not result in an increase in the aggregate dollar amount of all Awards earned by all Participants for that Performance Period determined before the application of this Section 5(e).

6. Changes to the Target Award Percentage

The Committee, with respect to all Participants who are not Executive Officers, may at any time prior to the final determination of Awards change the Target Award Percentage of any such Participant or assign a different Target Award Percentage to any such Participant to reflect any change in the Participant’s responsibility level or position during the course of the Performance Period.

The Committee may at the time Financial Target(s) are determined for a Performance Period, or at any time prior to the final determination of Awards in respect of that Performance Period to the extent permitted under Section 162(m) of the Code and the regulations promulgated thereunder without adversely affecting the treatment of the Award as Performance-Based Compensation, provide for the manner in which performance will be measured against the Financial Target(s) (or to the extent permitted under Section 162(m) of the Code and the regulations promulgated thereunder without adversely affecting the treatment of an Award as Performance-Based Compensation, may adjust the Financial Target(s)) to reflect the impact of (i) any stock dividend or split, recapitalization, combination or exchange of shares or other similar changes in the Company’s stock, (ii) specified corporate transactions (iii) special charges, (iv) foreign currency effects, (v) accounting or tax law changes and (vi) other extraordinary or nonrecurring events.

7. Payment of Awards

As soon as practicable after the close of a Performance Period and prior to the payment of any Award that is intended to constitute Performance-Based Compensation, the Committee shall review each Participant’s Award and certify in writing that the applicable Financial Targets have been satisfied. Subject to the provisions of Section 8 of the Plan, each Award to the extent earned shall be paid in a single lump sum cash payment. Notwithstanding the foregoing, the Committee may permit certain Participants to elect to receive all or a portion of their Award in shares of Company stock (rounded down to the nearest whole number) on such terms and conditions as established by the Committee; provided, however, that no cash will be paid for fractional shares and only Participants who are Accredited Investors may be permitted to make such election. The Committee shall certify in writing the amount of the Executive Officer’s Award prior to payment thereof. Payment of the Award, whether in cash or in shares of Company stock, shall be made as soon as practicable following the Performance Period, but in no event later than two and one-half months following the end of the Performance Period.

If a Change of Control occurs, the Company shall, within 60 days thereafter, pay to each Participant in the Plan immediately prior to the Change of Control (regardless of whether the Participant remains employed after the Change of Control) an Award which is calculated assuming that all performance percentages are 100 percent, and such Award shall be prorated to the date of the Change of Control based on the number of days that have elapsed during the Performance Period through the date of the Change of Control.

8. Limitations on Rights to Payment of Awards

No Participant shall have any right to receive payment of an Award under the Plan for a Performance Period unless the Participant remains in the employ of the Company through the payment date of the Award for such Performance Period, except as provided in the last paragraph of Section 7 of the Plan. However, if the Participant has active service with the Company or the Subsidiary for at least three months during any Performance Period, but, prior to payment of the Award for such Performance Period, a Participant’s employment with the Company terminates due to the Participant’s death, Disability or, except in the case of an Executive Officer, Retirement or such other special circumstances as determined by the Committee, on a case by case basis, the Participant (or, in the event of the Participant’s death, the Participant’s estate, beneficiary or beneficiaries as determined under Section 9 of the Plan) shall remain eligible to receive a prorated portion of any earned Award, based on the number of days that the Participant was actively employed and performed services during such Performance Period.

9.	Designation of Beneficiary

A Participant may designate a beneficiary or beneficiaries who, in the event of the Participant’s death prior to full payment of any Award hereunder, shall receive payment of any Award due under the Plan. Such designation shall be made by the Participant on a form prescribed by the Committee. The Participant may, at any time, change or revoke such designation. A beneficiary designation, or revocation of a prior beneficiary designation, will be effective only if it is made in writing on a form provided by the Company, signed by the Participant and received by the Secretary of the Company. If the Participant does not designate a beneficiary or the beneficiary dies prior to receiving any payment of an Award, Awards payable under the Plan shall be paid to the Participant’s estate.

10. Amendments

The Committee may at any time amend (in whole or in part) this Plan. No such amendment which adversely affects any Participant’s rights to or interest in an Award earned prior to the date of the amendment shall be effective unless the Participant shall have agreed thereto.

11. Termination

The Committee may terminate this Plan (in whole or in part) at any time. In the case of such termination of the Plan, the following provisions of this Section 11 shall apply notwithstanding any other provisions of the Plan to the contrary:

(i) The Committee shall promulgate administrative rules applicable to Plan termination, pursuant to which each affected Participant (other than an Executive Officer) shall receive, with respect to each Performance Period which has commenced on or prior to the effective date of the Plan termination (the “Termination Date”) and for which the Award has not yet been paid, the amount described in such rules and the Executive Officers shall receive an amount equal to the amount his Award would have been had the Plan not been terminated (prorated for the Performance Period in which the Termination Date occurred), subject to reduction in the discretion of the Committee.

(ii) Each Award payable under this Section 11 shall be paid as soon as practicable, but in no event later than two and one-half months after the Termination Date.

12. Miscellaneous Provisions

(a) This Plan is not a contract between the Company and the Employees or the Participants. Neither the establishment of this Plan, nor any action taken hereunder, shall be construed as giving any Employee or any Participant any right to be retained in the employ of the Company or any of its Subsidiaries. Neither the Company nor any of its Subsidiaries is under any obligation to continue the Plan.

(b) A Participant’s right and interest under the Plan may not be assigned or transferred, except as provided in Section 9 of the Plan, and any attempted assignment or transfer shall be null and void and shall extinguish, in the Company’s sole discretion, the Company’s obligation under the Plan to pay Awards with respect to the Participant.

(c) The Plan shall be unfunded. The Company shall not be required to establish any special or separate fund, or to make any other segregation of assets, to assure payment of Awards.

(d) The Company shall have the right to deduct from Awards paid and any interest thereon, any taxes or other amounts required by law to be withheld.

(e) Nothing contained in the Plan shall limit or affect in any manner or degree the normal and usual powers of management, exercised by the officers and the Board of Directors or committees thereof, to change the duties or the character of employment of any employee of the Company or any of its Subsidiaries or to remove the individual from the employment of the Company or any of its Subsidiaries at any time, all of which rights and powers are expressly reserved.