lh8kex10_3.htm


     

     

     

    Exhibit
      10.3

    
      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 _______, 2008 (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 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.

      


      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.

      


      Except
        as
        provided in Sections 3 and 4 hereof, 100% of the Restricted Stock Units granted
        hereunder will vest on the third 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.

      


                                      
        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 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.

      


      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 1⁄2 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
1⁄2
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.

      


      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 to the Company 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.  The Grantee may make a written election (the “Tax
        Election”) by completing and delivering a form of Tax Election in the manner
        specified in the form of Tax Election, which will be provided to the Grantee
        prior to the Vesting Date.  Pursuant to the form of Tax Election,
        Grantee may pay the applicable Withholding Taxes in any one or any combination
        of (i) cash, (ii) unrestricted Shares owned by the Grantee prior to the vesting
        of the Award and valued at its Fair Market Value on the business date
        immediately preceding the Vesting Date, or (iii) by having withheld a portion
        of
        the Shares issuable to him or her upon vesting of the Award and valued at
        its
        Fair Market Value on the date preceding the date of vesting.  For
        purposes of this Section 8, if the Grantee fails to make a Tax Election,
        the
        Withholding Tax obligation will be satisfied by alternative (iii).

      


      “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.

      


      15.           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.

      


      [Signature
        page follows]

       

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

       

       

      
        	 	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.

      


      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.