Unassociated Document


     

     

     

    Exhibit
      10.1

    FORM
      OF

    COMMSCOPE,
      INC.

    2006
      LONG
      TERM INCENTIVE PLAN

    NONQUALIFIED
      STOCK OPTION AGREEMENT (ANNUAL)

    


    


    THIS
      AGREEMENT, made as of
      the __________ day of ________________, 2008 (the
“Grant Date”), between CommScope, Inc., a Delaware corporation (the “Company”),
      and (the “Grantee”).

    


    WHEREAS,
      the Company has adopted the
      CommScope, Inc. 2006 Long Term Incentive Plan (the “Plan”) in order to provide
      an additional incentive to certain employees and directors of the Company and
      its Subsidiaries; and

    


    WHEREAS,
      the Committee responsible for
      administration of the Plan has determined to grant an option to the Grantee
      as
      provided herein;

    


    NOW,
      THEREFORE, the parties hereto
      agree as follows:

    


    1.         Grant
      of Option.

    


    1.1             The
      Company hereby grants to the Grantee the right and option (the “Option”) to
      purchase all or any part of an aggregate of
  whole Shares subject to, and in accordance
      with, the terms and conditions set forth in this Agreement.

    


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

    


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

    


    2.         Purchase
      Price.

    


    The
      price at which the Grantee shall
      be entitled to purchase Shares upon the exercise of the Option shall be
      $__________ per Share.

    


    3.         Duration
      of Option.

    


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

     

     4.         Vesting
      and Exercisability of Option.

    


    Unless
      otherwise provided in this
      Agreement or the Plan, the Option shall entitle the Grantee to purchase, in
      whole at any time or in part from time to time, thirty-three and one-third
      percent (33-1/3%) of the total number of Shares covered by the Option after
      the
      expiration of one (1) year from the Grant Date, an additional thirty-three
      and
      one-third percent (33-1/3%) of the total number of Shares covered by the Option
      after the second anniversary of the Grant Date, and the remainder of the number
      of Shares subject to the Option after the third anniversary of the Grant Date,
      and each such right of purchase shall be cumulative and shall continue, unless
      sooner exercised as herein provided, during the remaining period of the Exercise
      Term.  Any fractional number of Shares resulting from the application
      of the percentages set forth in this Section 4 shall be rounded to the next
      higher whole number of Shares.

    


    5.         Manner
      of Exercise and Payment.

    


    5.1             Subject
      to the terms and conditions of this Agreement and the Plan, the Option may
      be
      exercised by delivery of written notice to the Company, at its principal
      executive office.  Such notice shall state that the Grantee is
      electing to exercise the Option and the number of Shares in respect of which
      the
      Option is being exercised and shall be signed by the person or persons
      exercising the Option.  If requested by the Committee, such person or
      persons shall (i) deliver this Agreement to the Secretary of the Company who
      shall endorse on this Agreement a notation of such exercise and (ii) provide
      satisfactory proof as to the right of such person or persons to exercise the
      Option.

    


    5.2             The
      notice of exercise described in Section 5.1 shall be accompanied by the full
      purchase price for the Shares in respect of which the Option is being exercised,
      in cash or by check or, if indicated in the notice, such payment shall follow
      by
      check from a registered broker acting as agent on behalf of the
      Grantee.  However, at the discretion of the Committee appointed to
      administer the Plan, the Grantee may pay the exercise price in part or in full
      by transferring to the Company unrestricted Shares owned by the Grantee prior
      to
      the exercise of the Option having a Fair Market Value on the day preceding
      the
      date of exercise equal to the cash amount for which such shares are
      substituted.  “Fair Market Value” shall mean (i) if the Shares are
      listed for trading on the New York Stock Exchange, the closing price at the
      close of the primary trading session of the Shares on such date on the New
      York
      Stock Exchange, or if there has been no such closing price of the Shares on
      such
      date, on the next preceding date on which there was such a closing price, (ii)
      if the Shares are not so listed, but are listed on another national securities
      exchange, the closing price at the close of the primary trading session of
      the
      Shares on such date on such exchange, or if there has been no such closing
      price
      of the Shares on such date, on the next preceding date on which there was such
      a
      closing price, (iii) if the Shares are not listed for trading on the New York
      Stock Exchange or on another national securities exchange, the last sale price
      at the end of normal market hours of the Shares on such date as quoted on the
      National Association of Securities Dealers Automated Quotation System (“NASDAQ”)
      or, if no price shall have been so quoted for such date, on the next preceding
      date for which such price was so quoted, or (iv) if the Shares are not listed
      for trading on a national securities exchange or are not authorized for
      quotation on NASDAQ, the fair market value of the Shares as determined in good
      faith by the Committee.

    


    5.3             Upon
      receipt of notice of exercise and full payment for the Shares in respect of
      which the Option is being exercised, the Company shall, subject to this
      Agreement and the Plan, take such action as may be necessary to effect the
      transfer to the Grantee of the number of Shares as to which such exercise was
      effective.

    


    5.4             The
      Grantee shall not be deemed to be the holder of, or to have any of the rights
      of
      a holder with respect to any Shares subject to the Option until (i) the Option
      shall have been exercised pursuant to the terms of this Agreement and the
      Grantee shall have paid the full purchase price for the number of Shares in
      respect of which the Option was exercised, (ii) the Company shall have issued
      and delivered the Shares to the Grantee, and (iii) the Grantee’s name shall have
      been entered as a stockholder of record on the books of the Company, whereupon
      the Grantee shall have full voting and other ownership rights with respect
      to
      such Shares.

    


    6.         Termination
      of Employment.

    


    6.1             Death
      or Disability.  In the event the Grantee’s employment is
      terminated by reason of the Grantee’s death or Disability, any portion of the
      Option that is not yet vested and exercisable on the Termination Date (as
      defined below) shall become immediately vested and fully exercisable on such
      date, and the entire Option shall remain exercisable for a period of five (5)
      years following the Termination Date by the Grantee or by the Grantee’s legatee
      or legatees under his will, or by his personal representatives or distributees,
      as applicable.  For purposes of this Agreement, “Termination Date”
shall mean the last day on which the Grantee works for the Company, a Subsidiary
      or a Division.

    


    6.2             Retirement.  In
      the event that (i) the Grantee has completed 10 years of service for the
      Company, a Subsidiary or a Division, and the Grantee’s employment is terminated
      as a result of the Grantee’s voluntary retirement after attainment of age 55, or
      (ii) the Grantee’s employment is terminated as a result of the Grantee’s
      voluntary retirement after attainment of age 65,  the “Pro Rata
      Portion” (as defined below) of that portion of the Option that would have become
      vested and exercisable on the anniversary of the Grant Date immediately
      following the Termination Date shall remain outstanding and shall be eligible
      to
      vest on such anniversary date if the Grantee complies with the post-employment
      covenants described in Appendix A attached hereto.  In the event of a
      breach by the Grantee of the post-employment covenants described in Appendix
      A,
      the Option shall immediately be forfeited.  The portion of the Option
      that was previously vested and the portion of the Option that vests pursuant
      to
      this Section 6.2 shall, once vested, remain exercisable for a period of five
      (5)
      years following the Termination Date, by the Grantee or by the Grantee’s legatee
      or legatees under his will, or by his personal representatives or distributees,
      as applicable.  The “Pro Rata Portion” shall mean a fraction the
      numerator of which is the number of whole calendar months between (A) the later
      of the Grant Date or the anniversary of the Grant Date immediately preceding
      the
      Termination Date and (B) the Termination Date, and the denominator of which
      is
      12.

    


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

    


    6.4             Other
      Termination of Employment.  If the employment of the Grantee is
      terminated (including the Grantee’s ceasing to be employed by a Subsidiary or a
      Division as a result of the sale of such Subsidiary or Division or an interest
      in such Subsidiary or Division) under any circumstance other than those set
      forth in Section 6.1, Section 6.2 and Section 6.3, any portion of the Option
      that is not vested and exercisable on the Termination Date shall expire and
      the
      Grantee may, at any time within thirty (30) days after the Termination Date,
      exercise the Option to the extent, but only to the extent, that the Option
      or
      portion thereof was vested and exercisable on the Termination Date.

    


    6.5             No
      Extension of Exercise Term.  Notwithstanding the terms of Section
      6.1, 6.2 and 6.4 and except as provided in this Section 6.5, in no event may
      the
      Option be exercised by anyone after the expiration of the Exercise
      Term.  An Option that becomes vested as a result of a Grantee’s death
      may be exercised for up to five (5) years following the date of the Grantee’s
      death but only one (1) of such years may extend beyond expiration of the
      Exercise Term.

    


    7.         Effect
      of Change in Control.

    


    Notwithstanding
      anything contained in
      this Agreement to the contrary, in the event of a Change in Control the Option
      shall become immediately vested and fully exercisable.

    


    8.         Non-transferability.

    


    The
      Option shall not be assignable or
      transferable other than by will or the laws of descent and distribution or
      pursuant to a qualified domestic relations order (within the meaning of Rule
      16a-12 promulgated under the Exchange Act).  During the lifetime of
      the Grantee, the Option shall be exercisable only by the Grantee, his or her
      legal guardian or legal representatives or a bankruptcy
      trustee.  Notwithstanding the foregoing and unless prohibited by
      applicable law, the Option may be transferred to members of the Grantee’s
      immediate family, to trusts solely for the benefit of such immediate family
      members and to partnerships in which such family members and/or trusts are
      the
      only partners, and for purposes of this Agreement and the Plan, a transferee
      of
      an Option shall be deemed to be the Grantee.  For this purpose,
      immediate family means the Grantee’s spouse, parents, children, stepchildren and
      grandchildren and the spouses of such parents, children, stepchildren and
      grandchildren.  Notwithstanding anything to the contrary contained
      herein, the Option may not be exercised by or transferred to any person other
      than the Grantee, unless such other person presents documentation to the
      Committee, which proves to the Committee to its reasonable satisfaction such
      person’s right to the transfer or exercise.

    


    9.         No
      Right to Continued Employment.

    


    Nothing
      in this Agreement or the Plan
      shall be interpreted or construed to confer upon the Grantee any right with
      respect to continuance of employment by the Company, any Subsidiary or any
      Division, nor shall this Agreement or the Plan interfere in any way with the
      right of the Company, any Subsidiary or any Division to terminate the Grantee’s
      employment therewith at any time.

    


    10.         Adjustments.

    


    In
      the event of a Change in
      Capitalization, the Committee shall make equitable adjustments to the number
      and
      class of Shares or other securities subject to the Option and the purchase
      price
      for such Shares or other securities.  The Committee’s adjustment shall
      be made in accordance with the provisions of Article 13 of the Plan
      and shall be final, binding and conclusive for all purposes of the Plan and
      this Agreement.

    


    11.         Effect
      of Certain Transactions.

    


    Subject
      to Section 7 hereof, upon the
      effective date of the liquidation, dissolution, merger or consolidation of
      the
      Company (in each case, a “Transaction”), the Option shall continue in
      effect in accordance with its terms, except that following a Transaction either
      (a) the Option shall be treated as provided for in the plan or agreement entered
      into in connection with the Transaction (the “Transaction Agreement”) or (b) if
      not so provided in the Transaction Agreement, the Grantee shall be entitled
      to
      receive in respect of all Shares subject to the Option, upon exercise of the
      Option, the same number and kind of stock, securities, cash, property or other
      consideration that each holder of Shares was entitled to receive in the
      Transaction.

    


    12.         Withholding
      of Taxes.

    


    The
      Company shall have the right to
      deduct from any distribution of cash to any Grantee, an amount equal to the
      federal, state and local income taxes and other amounts as may be required
      by
      law to be withheld (the “Withholding Taxes”) with respect to the
      Option.  If a Grantee is entitled to receive Shares upon exercise of
      the Option, the Grantee shall pay the Withholding Taxes to the Company prior
      to
      the issuance of such Shares.

    


    Payment
      of the applicable Withholding
      Taxes may be made in any one or any combination of: (i) cash, (ii) unrestricted
      Shares owned by the Grantee prior to the exercise of the Option and valued
      at
      its Fair Market Value 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 of the
      Committee, to have withheld a portion of the Shares issuable to him or her
      upon
      exercise of the Option and valued at its Fair Market Value on the date preceding
      the date of exercise, equal to the Withholding Taxes.

    


    13.         Grantee
      Bound by the Plan.

    


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

    


    14.         Modification
      of Agreement.

    


    This
      Agreement may be modified,
      amended, suspended or terminated, and any terms or conditions may be waived,
      but
      only by a written instrument executed by the parties hereto.  No
      waiver by either party hereto of any breach by the other party hereto of any
      provision of this Agreement to be performed by such other party shall be deemed
      a waiver of similar or dissimilar provisions at the time or at any prior or
      subsequent time.

     

     15.         Severability.

    


    Should
      any provision of this
      Agreement be held by a court of competent jurisdiction to be unenforceable
      or
      invalid for any reason, the remaining provisions of this Agreement shall not
      be
      affected by such holding and shall continue in full force in accordance with
      their terms.

     

     
      16.         Governing
      Law.

    


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

    


     17.         Successors
      in Interest.

    


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

     

      18.         Resolution
      of Disputes.

    


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

    


       19.         Consent
      to Jurisdiction.

    


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

     

    
 

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    
      	 	COMMSCOPE,
              INC.	 
	 	 	 	 
	
              Date:

            	 	 	
              By:
                

            	 	 
	 	Print
              Name:
	 	Title :	 


    

    


    
      	
            	GRANTEE	 
	 	 	 	 
	
              Date:

            	 	 	
              By:
                

            	 	 
	 	Print
              Name:
	 


    

     

    


    
      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

    

    


    Appendix
      A

    Non-Competition
      and Confidentiality Covenants

    


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

     

    1.           Non-competition.  The
      Grantee agrees that the Grantee will not, for a period of two years following
      his termination of employment as described in Section 6.2 of the Stock Option
      Agreement (the “Non-Competition Period”), directly or indirectly own, manage,
      operate, join, control, be employed by, or participate in the ownership,
      management, operation or control of, or be connected in any manner, including
      but not limited to holding, the positions of shareholder, director, officer,
      consultant, independent contractor, employee, partner, or investor, with any
      Competing Enterprise.  For purposes of this paragraph, the term
“Competing Enterprise” shall mean any person, corporation, partnership or other
      entity engaged in a business in the United States or any other geographic area
      in which the Company does business which is in competition with any of the
      businesses of the Company or any of its Affiliates as of the date of the
      termination of the Grantee’s employment with the Company and its
      Affiliates.  Upon request at any time during the Non-Competition
      Period, the Grantee shall notify the Company of the Grantee’s then current
      employment status.  As used herein, “Affiliate” shall mean the
      Company’s affiliated companies, divisions, subsidiaries, successors,
      predecessors and assigns.

    


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

    


    3.           Proprietary Rights.  The
      Grantee represents, warrants and covenants that all patents, patent
      applications, rights to inventions, copyright registrations and other license,
      trademark and trade name rights heretofore owned by the Grantee and relating
      to
      the business of the Company or any of its Affiliates have been or will be duly
      transferred to the Company on or prior to the date of termination of employment
      with the Company and its Affiliates.

    


    4.           Confidentiality;
      Return of Company Property.  The Grantee agrees and understands
      that in the Grantee’s position with the Company and/or its Affiliates and
      performance of his or her responsibilities, duties and services for the Company
      and/or its Affiliates, as the case may be, the Grantee has been exposed to,
      and
      information relating to, the confidential affairs of the Company and/or its
      Affiliates, including but not limited to technical information, intellectual
      property, business and marketing plans, strategies, customer information, other
      information concerning the products, promotions, development, financing,
      expansion plans, business policies and practices of the Company and/or its
      Affiliates, and other forms of confidential information, trade secrets and/or
      confidential information in the nature of trade secrets of the Company and/or
      its Affiliates (“Confidential Information”).  The Grantee
      acknowledges and represents that as of the time of execution of this
      Non-Competition and Confidentiality Agreement the Grantee has not disclosed,
      and
      agrees that at any time thereafter the Grantee will not disclose, Confidential
      Information, either directly or indirectly, to any third person or entity
      without the prior written consent of the Company and/or its Affiliates, as
      appropriate.  This confidentiality covenant has no temporal,
      geographical or territorial restriction.  Except as otherwise
      expressly agreed to by the Company or its Affiliates, as appropriate, on or
      promptly following the date of termination of the Grantee’s employment with the
      Company and its Affiliates, the Grantee will supply to the Company and/or its
      Affiliates, as appropriate, all property, keys, mobile phones, computer
      equipment, software data files, notes, memoranda, writings, lists, files,
      reports, customer lists, correspondence, tapes, disks, cards, surveys, maps,
      logs, machines, technical data or any other tangible product or document (and
      any copies, in whatever medium, thereof) which has been produced by, received
      by
      or otherwise submitted to the Grantee: (i) during his or her employment with
      the
      Company and/or its Affiliates; and (ii) in the case of a Grantee who was
      employed by Avaya, Inc. (“Avaya”), during his or her employment with Avaya (but
      only with respect to employment that related to the Connectivity Solutions
      business that was acquired by the Company and its Affiliates pursuant to the
      Asset Purchase Agreement by and among Avaya, the Company and CommScope Solutions
      Holdings, LLC (formerly SS Holdings, LLC) dated October 23,
      2003).  Any such data or property (including copies thereof) stored on
      computer, software data files or other equipment belonging to the Grantee (or
      to
      which the Grantee otherwise has lawful access after the date hereof) shall
      be
      deleted by the Grantee immediately following the termination of the Grantee’s
      employment with the Company and its Affiliates.

     

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

     

    6.           Remedies.  The
      Grantee agrees that any breach of the terms of this Appendix A would result
      in
      irreparable injury and damage to the Company and/or its Affiliates for which
      the
      Company and/or its Affiliates would have no adequate remedy at law; the Grantee
      therefore also agrees that in the event of said breach or any threat of breach,
      the Company and/or its Affiliates shall be entitled to an immediate injunction
      and restraining order to prevent such breach and/or threatened breach and/or
      continued breach by the Grantee and/or any and all persons and/or entities
      acting for and/or with the Grantee, without having to prove damages, and to
      all
      costs and expenses, including reasonable attorneys’ fees and costs, in addition
      to any other remedies to which the Company and/or its Affiliates may be entitled
      at law or in equity.  The terms of this paragraph shall not prevent
      the Company and/or its Affiliates from pursuing any other available remedies
      for
      any breach or threatened breach hereof, including but not limited to the
      recovery of damages from the Grantee.  The Grantee further agrees that
      the provisions of the covenant not to compete are reasonable.  Should
      a court or arbitrator determine, however, that any provision of the covenant
      not
      to compete is unreasonable, either in period of time, geographical area, or
      otherwise, the parties hereto agree that the covenant should be interpreted
      and
      enforced to the maximum extent which such court or arbitrator deems
      reasonable.

    


    The
      existence of any claim or cause of
      action by the Grantee against the Company and/or its Affiliates shall not
      constitute a defense to the enforcement by the Company and/or its Affiliates
      of
      the covenants and agreements of this Appendix A.

     

    7.         Miscellaneous.  This
      Appendix A sets forth the entire understanding of the parties hereto with
      respect to the subject matter hereof and supersedes all prior agreements,
      written or oral, between them as to such subject matter, other than any
      confidentiality agreement, any agreement dealing with the assignment to the
      Company of patents, copyrights or other intellectual property or any other
      similar agreements.