FORM OF COMMSCOPE, INC. EMPLOYEE PERFORMANCE SHARE UNIT AWARD AGREEMENT (WITH RELATED DIVIDEND EQUIVALENT RIGHTS)
EXHIBIT 99.2
FORM
OF
COMMSCOPE,
INC.
2006
LONG TERM INCENTIVE PLAN
(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”):
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<
Minimum
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Minimum
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Target
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Maximum
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>
Maximum
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Operating
Income
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<
$___
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$___
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$___
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$___
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>
$___
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Percent
of Performance Share Units with respect to which Performance Goals are
satisfied
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0%
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50%
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100%*
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150%
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150%
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*
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The
amount set forth in Section 1.1.
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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.
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.
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.
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.
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.
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, the Grantee’s
heirs, executors, administrators and successors, and the Company and its
Subsidiaries for all purposes.
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15.
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Consent to
Jurisdiction.
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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.
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16.
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Data Privacy
Consent.
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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.
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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By:
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Name:
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Title:
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GRANTEE
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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.
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 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 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.
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 Exhibit
A.
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.
