**EXHIBIT10.1**

 

FORM OF

AMENDED AND RESTATED

COMMSCOPE, INC.

1997 LONG-TERM INCENTIVEPLAN

# NONQUALIFIEDSTOCK OPTION AGREEMENT

 

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

 

WHEREAS, the Company has adopted the Amended andRestated CommScope, Inc. 1997 Long-Term Incentive Plan (the “Plan”) inorder to provide an additional incentive to certain employees and directors ofthe Company and its Subsidiaries; and

 

WHEREAS, the Committee responsible for administrationof the Plan has determined to grant an option to the Grantee as providedherein;

 

NOW, THEREFORE, the parties hereto agree as follows:

 

1.                                       Grantof Option.

 

1.1                                 TheCompany hereby grants to the Grantee the right and option (the “Option”) topurchase all or any part of an aggregate of **          ******whole shares of Stock subject to, and in accordance with,the terms and conditions set forth in this Agreement.

 

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

 

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

 

2.                                       PurchasePrice.

 

The price at which the Grantee shall be entitled topurchase shares of Stock upon the exercise of the Option shall be **$        ** per shareof Stock.

 

3.                                       Durationof Option.

 

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

 

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4.                                       Vestingand Exercisability of Option.

 

Unless otherwise provided in this Agreement or thePlan, the Option shall entitle the Grantee to purchase, in whole at any time orin part from time to time, thirty-three and one-third percent (33-1/3%) of thetotal number of shares of Stock covered by the Option after the expiration ofone (1) year from the Grant Date, an additional thirty-three and one-thirdpercent (33-1/3%) of the total number of shares of Stock covered by the Optionafter the second anniversary of the Grant Date, and the remainder of the numberof shares of Stock subject to the Option after the third anniversary of theGrant Date, and each such right of purchase shall be cumulative and shallcontinue, unless sooner exercised as herein provided, during the remainingperiod of the Exercise Term.  Anyfractional number of shares of Stock resulting from the application of the percentagesset forth in this Section 4 shall be rounded to the next higher whole number ofshares of Stock.

 

5.                                       Mannerof Exercise and Payment.

 

5.1                                 Subjectto the terms and conditions of this Agreement and the Plan, the Option may beexercised by delivery of written notice to the Company, at its principalexecutive office.  Such notice shallstate that the Grantee is electing to exercise the Option and the number ofshares of Stock in respect of which the Option is being exercised and shall besigned by the person or persons exercising the Option.  If requested by the Committee, such person orpersons shall (i) deliver this Agreement to the Secretary of the Company whoshall endorse on this Agreement a notation of such exercise and (ii) providesatisfactory proof as to the right of such person or persons to exercise theOption.

 

5.2                                 Thenotice of exercise described in Section 5.1 shall be accompanied by the fullpurchase price for the shares of Stock in respect of which the Option is beingexercised, in cash or by check or, if indicated in the notice, such paymentshall follow by check from a registered broker acting as agent on behalf of theGrantee.  However, at the discretion ofthe Committee appointed to administer the Plan, the Grantee may pay the exerciseprice in part or in full by transferring to the Company shares of restricted or unrestricted Stock owned by the Granteeprior to the exercise of the Option having a Fair Market Value on the daypreceding the date of exercise equal to the cash amount for which such sharesare substituted.

 

5.3                                 Uponreceipt of notice of exercise and full payment for the shares of Stock inrespect of which the Option is being exercised, the Company shall, subject tothis Agreement and the Plan, take such action as may be necessary to effect thetransfer to the Grantee of the number of shares of Stock as to which suchexercise was effective.

 

5.4                                 TheGrantee shall not be deemed to be the holder of, or to have any of the rightsof a holder with respect to any shares of Stock subject to the Option until (i)the Option shall have been exercised pursuant to the terms of this Agreementand the Grantee shall have paid the full purchase price for the number ofshares of Stock in respect of which the Option was exercised, (ii) the Companyshall have issued and delivered the shares of Stock to the Grantee, and (iii)the Grantee’s name shall have been entered as a stockholder of record on thebooks of the Company, whereupon the Grantee shall have full voting and otherownership rights with respect to such shares of Stock.

 

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6.                                       Terminationof Employment.

 

6.1                                 Death,Disability or Retirement.  In theevent the Grantee’s employment is terminated by reason of the Grantee’s deathor Disability, or as a result of the Grantee’s voluntary retirement afterattainment of age 65, any portion of the Option that is not yet vested andexercisable on the Termination Date (as defined below) shall become immediatelyvested and fully exercisable on such date, and shall remain exercisable for aperiod of five (5) years following the Termination Date, by the Grantee or bythe Grantee’s legatee or legatees under his will, or by his personalrepresentatives or distributees, as applicable. For purposes of this Agreement, “Termination Date” shall mean the lastday on which the Grantee works for the Company, a Subsidiary or an operatingdivision or unit of the Company or Subsidiary (a “Division”).

 

6.2                                 EarlyRetirement.  In the event that theGrantee has completed 10 years of service for the Company, a Subsidiary or aDivision, and the Grantee’s employment is terminated as a result of the Grantee’svoluntary retirement after attainment of age 55, (i) any portion of the Optionthat is not yet vested and exercisable on the Termination Date shall become immediatelyvested and fully exercisable on such date, and shall remain exercisable for aperiod of five (5) years following the Termination Date, by the Grantee or bythe Grantee’s legatee or legatees under his will, or by his personalrepresentatives or distributees, as applicable, and (ii) the Grantee will besubject to certain post-employment covenants described in Appendix A attachedhereto; provided, however, that, in the event of a breach by theGrantee of any of the post-employment covenants described in Appendix Aattached hereto, the Option shall immediately expire in its entirety whether ornot vested and exercisable.

 

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

 

6.4                                 OtherTermination of Employment.  If theemployment of the Grantee is terminated (including the Grantee’s ceasing to beemployed by a Subsidiary or a Division as a result of the sale of suchSubsidiary or Division or an interest in such Subsidiary or Division) under anycircumstance other than those set forth in Section 6.1, Section 6.2 and Section6.3, any portion of the Option that is not vested and exercisable on theTermination Date shall expire and the Grantee may, at any time within thirty(30) days after the Termination Date, exercise the Option to the extent, butonly to the extent, that the Option or portion thereof was vested andexercisable on the Termination Date.

 

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6.5                                 NoExtension of Exercise Term.  Notwithstanding the terms of Section 6.1, 6.2and 6.4, in no event may the Option be exercised by anyone after the expirationof the Exercise Term.

 

7.                                       Effectof Change of Control.

 

Notwithstanding anything contained in this Agreementto the contrary, in the event of a Change of Control the Option shall becomeimmediately vested and fully exercisable.

 

8.                                       Non-transferability.

 

The Option shall not be assignable or transferableother than by will or the laws of descent and distribution or pursuant to aqualified domestic relations order (within the meaning of Rule 16a-12promulgated under the Exchange Act). During the lifetime of the Grantee, the Option shall be exercisable onlyby the Grantee, his or her legal guardian or legal representatives or a bankruptcytrustee.  Notwithstanding the foregoing,the Option may be transferred to members of the Grantee’s immediate family, totrusts solely for the benefit of such immediate family members and topartnerships 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 Optionshall be deemed to be the Grantee.  Forthis purpose, immediate family means the Grantee’s spouse, parents, children,stepchildren and grandchildren and the spouses of such parents, children,stepchildren and grandchildren.

 

9.                                       NoRight to Continued Employment.

 

Nothing in this Agreement or the Plan shall beinterpreted or construed to confer upon the Grantee any right with respect tocontinuance of employment by the Company, any Subsidiary or any Division, norshall this Agreement or the Plan interfere in any way with the right of theCompany, any Subsidiary or any Division to terminate the Grantee’s employmenttherewith at any time.

 

10.                                 Adjustments.

 

In the event of a Change in Capitalization, theCommittee may make appropriate adjustments to the number and class of shares ofStock or other stock or securities subject to the Option and the purchase pricefor such shares or other stock or securities.  The Committee’s adjustment shall be made inaccordance with the provisions of Article 19 of the Plan and shall befinal, binding and conclusive for all purposes of the Plan and this Agreement.

 

11.                                 Effectof Certain Transactions.

 

Subject to Section 7 hereof, upon the effective dateof the liquidation, dissolution, merger or consolidation of the Company (ineach case, a “Transaction”), the Option shall continue in effect inaccordance with its terms, except that following a Transaction either (a) theOption shall be treated as provided for in the plan or agreement entered intoin connection with the Transaction (the “Transaction Agreement”) or (b) if notso provided in the Transaction Agreement, the Grantee shall be entitled toreceive in respect of all shares of Stock subject to the Option, upon exerciseof the Option, the same number and kind of stock, securities, cash, property orother consideration that each holder of shares of Stock was entitled to receivein the Transaction.

 

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12.                                 Withholdingof Taxes.

 

The Company shall have the right to deduct from anydistribution of cash to any Grantee, an amount equal to the federal, state andlocal 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 ofStock upon exercise of the Option, the Grantee shall pay the Withholding Taxesto the Company prior to the issuance of such shares of Stock.

 

Payment of the applicable Withholding Taxes may bemade, as determined by the Committee in its discretion, in any one or anycombination of (i) cash, (ii) shares of restricted or unrestricted Stock ownedby the Grantee prior to the exercise of the Option and valued at its Fair MarketValue on the business day immediately preceding the date of exercise, or (iii)by making a Tax Election (as described below). 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 ofthe Committee, to have withheld a portion of the shares of Stock issuable tohim or her upon exercise of the Option and valued at its Fair Market Value onthe date preceding the date of exercise, equal to the Withholding Taxes.

 

13.                                 GranteeBound by the Plan.

 

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

 

14.                                 Modificationof Agreement.

 

This Agreement may be modified, amended, suspended orterminated, and any terms or conditions may be waived, but only by a writteninstrument executed by the parties hereto. No waiver byeither party hereto of any breach by the other party hereto of any provision ofthis Agreement to be performed by such other party shall be deemed a waiver ofsimilar or dissimilar provisions at the time or at any prior or subsequenttime.

 

15.                                 Severability.

 

Should any provision of this Agreement be held by acourt of competent jurisdiction to be unenforceable or invalid for any reason, theremaining provisions of this Agreement shall not be affected by such holdingand shall continue in full force in accordance with their terms.

 

16.                                 GoverningLaw.

 

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

 

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17.                                 Successorsin Interest.

 

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

 

18.                                 Resolutionof Disputes.

 

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

 

19.                                 Consentto Jurisdiction.

 

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

 
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|   | COMMSCOPE, INC. |
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| Date:  |            |   | By: |   |   |
|   | Print Name:     |
|   | Title:          |
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|   | GRANTEE         |
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| Date:  |            |   | By: |   |   |
|   | Print Name:     |
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|        |                 |  |  |  |  |  |  |  |  |

 

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**Appendix A**

CommScope, Inc. Employees

Non-Competition andConfidentiality Covenants

 

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

 

1.                                       Non-competition.  TheGrantee agrees that the Grantee will not, for a period of two years followinghis or her termination of employment as described in Section 6.2 of the StockOption Agreement (the “Non-Competition Period”), directly or indirectly own,manage, operate, join, control, be employed by, or participate in theownership, 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.  Forpurposes of this paragraph, the term “Competing Enterprise” shall mean anyperson, corporation, partnership or other entity engaged in a business in theUnited States or any other geographic area in which the Company does businesswhich is in competition with any of the businesses of the Company or any of itsAffiliates as of the date of the termination of the Grantee’s employment withthe Company and its Affiliates.  Uponrequest at any time during the Non-Competition Period, the Grantee shall notifythe Company of the Grantee’s then current employment status.  As used herein, “Affiliate” shall mean theCompany’s affiliated companies, divisions, subsidiaries, successors,predecessors and assigns.

 

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

 

3.                                       Proprietary Rights.  The Grantee represents and warrants that allpatents, patent applications, rights to inventions, copyright registrations andother license, trademark and trade name rights heretofore owned by the Granteeand relating to the business of the Company or any of its Affiliates have beenduly transferred to the Company.

 

4.                                       Confidentiality; Return of CompanyProperty.  The Grantee agrees and understands that inthe Grantee’s position with the Company and/or its Affiliates and performanceof his or her responsibilities, duties and services for the Company and/or itsAffiliates, as the case may be, the Grantee has been exposed to, andinformation relating to, the confidential affairs of the Company and/or itsAffiliates, including but not limited to technical information, intellectualproperty, business and marketing plans, strategies, customer information, otherinformation concerning the products, promotions, development, financing, expansionplans, business policies and practices of the Company and/or its Affiliates,and other forms of confidential information, trade secrets and/or confidentialinformation in the nature of trade secrets of the Company and/or its Affiliates(“Confidential Information”).  TheGrantee acknowledges and represents that as of the time of execution of thisNon-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 orentity without the prior written consent of the Company and/or its Affiliates,as appropriate.  This confidentialitycovenant has no temporal, geographical or territorial restriction.

 

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Except as otherwiseexpressly agreed to by the Company or its Affiliates, as appropriate, on orpromptly following the date hereof, the Grantee will supply to the Companyand/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 documentwhich has been produced by, received by or otherwise submitted to the Granteeduring his or her employment with the Company and/or its Affiliates and, anycopies, in whatever medium, thereof.  Anysuch data or property (including copies thereof) stored on computer, softwaredata files or other equipment belonging to the Grantee (or to which the Granteeotherwise has lawful access after the date hereof) shall be deleted by theGrantee immediately following execution of this Non-Competition and ConfidentialityAgreement.

 

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

 

6.                                       Remedies.  The Grantee agrees that anybreach of the terms of this Appendix A would result in irreparable injury anddamage to the Company and/or its Affiliates for which the Company and/or itsAffiliates would have no adequate remedy at law; the Grantee therefore alsoagrees that in the event of said breach or any threat of breach, the Companyand/or its Affiliates shall be entitled to an immediate injunction andrestraining order to prevent such breach and/or threatened breach and/orcontinued breach by the Grantee and/or any and all persons and/or entitiesacting for and/or with the Grantee, without having to prove damages, and to allcosts and expenses, including reasonable attorneys’ fees and costs, in additionto any other remedies to which the Company and/or it Affiliates may be entitledat law or in equity.  The terms of thisparagraph shall not prevent the Company and/or its Affiliates from pursuing anyother available remedies for any breach or threatened breach hereof, includingbut not limited to the recovery of damages from the Grantee.  The Grantee further agrees that theprovisions 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 inperiod of time, geographical area, or otherwise, the parties hereto agree thatthe covenant should be interpreted and enforced to the maximum extent whichsuch court or arbitrator deems reasonable.

 

Theexistence of any claim or cause of action by the Grantee against the Companyand/or its Affiliates shall not constitute a defense to the enforcement by theCompany and/or its Affiliates of the covenants and agreements of this AppendixA.

 

7.                                       Miscellaneous.  ThisAppendix A sets forth the entireunderstanding of the parties hereto with respect to the subject matter hereofand supersedes all prior agreements, written or oral, between them as to suchsubject matter, other than any confidentiality agreement, any agreement dealingwith the assignment to the Company of patents, copyrights or other intellectualproperty or any other similar agreements.

 

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