FORM OF COMMSCOPE, INC. NONQUALIFIED STOCK OPTION AGREEMENT (ANNUAL)
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.
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COMMSCOPE, INC.
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Date:
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Print Name:
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Title:
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GRANTOR
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By:
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Print Name:
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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.
