lh8kex10_2.htm


    Exhibit
      10.2

    FORM
      OF

    COMMSCOPE,
      INC.

    2006
      LONG TERM INCENTIVE PLAN

    EMPLOYEE
      PERFORMANCE SHARE UNIT AWARD AGREEMENT

    (WITH
      RELATED DIVIDEND EQUIVALENT RIGHTS)

    


    THIS
      AGREEMENT, made as of the ____ day of _______, 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 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 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 2008 (the “Performance Year”):

    


    
      	 	
              <
                Minimum

            	
              Minimum

            	
              Target

            	
              Maximum

            	
              >
                Maximum

            
	
              Operating
                

              Income

            	
              <$___

            	
              $___

            	
              $___

            	
              $___

            	
              >$___

            
	
               

              Percent
                of Performance Share Units with respect to which Performance Goals
                are
                satisfied

               

            	
              0%

            	
              50%

            	
              100%*

            	
              150%

            	
              150%

            


    

    
      	
              *

            	
              The
                amount set forth in Section 1.1.

            


    

    


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

    


    For
      purposes of this Agreement,
“Operating Income” shall mean: “Operating Income (Loss),” as such item appears
      on the Company's Consolidated Statements of Operations for 2008, 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, incremental
      depreciation resulting from fair value adjustments to fixed assets acquired
      in
      the three months ended December 31, 2007 or later, amortization of intangible
      assets acquired in the three months ended December 31, 2007 or later, and other
      business acquisition purchase accounting adjustments; (3) any recoveries or
      impairments of Brazilian value-added tax receivables (e.g., federal, state,
      local or other similar value added taxes) recorded as of December 31, 2007
      for
      CommScope Cabos do Brasil, Ltda.; (4) any gains or losses on disposal of long
      lived assets including property, plant and equipment; and (5) any restructuring
      costs.  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 2008.

    


    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.

    


                                   
      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 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 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 1⁄2
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 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 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.