Exhibit 10.7
COMMSCOPE,
INC.
SUPPLEMENTAL EXECUTIVE
RETIREMENT PLAN
As Amended and
Restated
Effective April 9,
2009
ARTICLE I
INTRODUCTION
1.1 Effective Date . The
effective date of the Plan is June 8, 1990, as amended and
restated effective January 1, 2001, as further amended and
restated effective December 15, 2004, as further amended and
restated effective February 24, 2006, as further amended and
restated effective October 8, 2007, and as further amended and
restated herein, effective April 9, 2009.
1.2 Purpose . The purpose of
the Plan is to provide supplemental retirement benefits for a
select group of management and/or highly compensated employees of
CommScope, Inc. and its Subsidiaries. The Plan is an unfunded
arrangement that is not intended to qualify under
Section 401(a) of the Code, nor be generally subject to
ERISA.
1.3 Legal Effect . The terms
and conditions of the Plan as amended and restated herein shall
amend and supersede, prospectively and in its entirety, the terms
and conditions of the CommScope, Inc. Supplemental Executive
Retirement Plan originally adopted June 8, 1990, as amended
and restated effective January 1, 2001, as further amended and
restated effective December 15, 2004, as further amended and
restated effective February 24, 2006, and as further amended
and restated effective October 8, 2007. The provisions of the
Plan as in effect prior to January 1, 2001 shall continue to
govern the benefits and rights of all Participants who were retired
under the terms of the Plan as of December 31,
2000.
1.4 Administration . The Plan
shall be administered by the Board or a Committee appointed by the
Board.
ARTICLE II
DEFINITIONS
2.1 Administrator shall mean
the Board, or the Committee appointed by the Board, responsible for
the overall operation and administration of the Plan.
2.2 Annual Compensation shall
mean the Compensation paid to a Participant by the Company for the
Plan Year.
2.3 Annual Compensation Cap
shall mean the lesser of (i) the limitation amount set forth
under Section 401(a)(17) of the Code for the applicable Plan
Year, and (ii) the amounts as set forth in Appendix A for the
applicable Plan Year.
2.4 Beneficial Owner ,
Beneficial Ownership , Beneficially Owned and
Beneficially Owning shall have the meanings applicable under
Rule 13d-3 promulgated under the Exchange Act.
2.5 Beneficiary shall mean
the person or persons designated by the Participant to receive a
distribution of Plan benefits upon the death of such
Participant.
2.6 Board shall mean the
Board of Directors of the Company.
2.7 Cause shall mean a
Participant’s commission of fraud, embezzlement, gross
misconduct, or other felonies against the Company.
2.8 Change of Control means,
any of the following:
(a) An acquisition (other than
directly from the Company) of any Voting Securities by any
“Person” (as the term “person” is used for
purposes of Section 13(d) or 14(d) of the Securities Exchange
Act of 1934 (the “Exchange Act”)), immediately after
which such Person has Beneficial Ownership of more than
thirty-three percent (33%) of (i) the then-outstanding
shares of common stock of the Company (the “Shares”) or
(ii) the combined voting power of the Company’s
then-outstanding Voting Securities; provided, however, that in
determining whether a Change in Control has occurred pursuant to
this paragraph (a), the acquisition of Shares or Voting Securities
in a Non-Control Acquisition (as hereinafter defined) shall not
constitute a Change in Control. A “Non-Control
Acquisition” shall mean an acquisition by (i) an
employee benefit plan (or a trust forming a part thereof)
maintained by (A) the Company or (B) any corporation or
other Person the majority of the voting power, voting equity
securities or equity interest of which is owned, directly or
indirectly, by the Company (for purposes of this definition, a
“Related Entity”), (ii) the Company or any Related
Entity, or (iii) any Person in connection with a Non-Control
Transaction (as hereinafter defined);
(b) The individuals who, as of
February 24, 2006, are members of the Board (the
“Incumbent Board”), cease for any reason to constitute
at least two-thirds of the members of the Board or, following a
Merger (as hereinafter defined), the board of directors of
(i) the corporation resulting from such Merger (the
“Surviving Corporation”), if fifty percent
(50%) or more of the combined voting power of the
then-outstanding voting securities of the Surviving Corporation is
not Beneficially Owned, directly or indirectly, by another Person
(a “Parent Corporation”) or (ii) if there is one
or more than one Parent Corporation, the ultimate Parent
Corporation; provided, however, that, if the election, or
nomination for election by the Company’s common shareholders,
of any new director was approved by a vote of at least two-thirds
of the Incumbent Board, such new director shall, for purposes of
the Plan, be considered a member of the Incumbent Board; and
provided, further, however, that no individual shall be considered
a member of the Incumbent Board if such individual initially
assumed office as a result of an actual or threatened solicitation
of proxies or consents by or on behalf of a Person other than the
Board (a “Proxy Contest”), including by reason of any
agreement intended to avoid or settle any Proxy Contest;
or
(c) The consummation of:
(i) A merger, consolidation or
reorganization (x) with or into the Company or (y) in
which securities of the Company are issued (a
“Merger”), unless such Merger is a “Non-Control
Transaction.” A “Non-Control Transaction” shall
mean a Merger in which:
(A) the shareholders of the Company
immediately before such Merger own directly or indirectly
immediately following such Merger at
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least a majority of the combined
voting power of the outstanding voting securities of (1) the
Surviving Corporation, if there is no Parent Corporation or
(2) if there is one or more than one Parent Corporation, the
ultimate Parent Corporation;
(B) the individuals who were members
of the Incumbent Board immediately prior to the execution of the
agreement providing for such Merger constitute at least a majority
of the members of the board of directors of (1) the Surviving
Corporation, if there is no Parent Corporation, or (2) if
there is one or more than one Parent Corporation, the ultimate
Parent Corporation; and
(C) no Person other than
(1) the Company or another corporation that is a party to the
agreement of Merger, (2) any Related Entity, or (3) any
employee benefit plan (or any trust forming a part thereof) that,
immediately prior to the Merger, was maintained by the Company or
any Related Entity, or (4) any Person who, immediately prior
to the Merger had Beneficial Ownership of thirty-three percent
(33%) or more of the then outstanding Shares or Voting
Securities, has Beneficial Ownership, directly or indirectly, of
thirty-three percent (33%) or more of the combined voting
power of the outstanding voting securities or common stock of
(x) the Surviving Corporation, if there is no Parent
Corporation, or (y) if there is one or more than one Parent
Corporation, the ultimate Parent Corporation.
(ii) A complete liquidation or
dissolution of the Company; or
(iii) The sale or other disposition
of all or substantially all of the assets of the Company and its
Subsidiaries taken as a whole to any Person (other than (x) a
transfer to a Related Entity or (y) the distribution to the
Company’s shareholders of the stock of a Related Entity or
any other assets).
Notwithstanding the foregoing, a
Change in Control shall not be deemed to occur solely because any
Person (the “Subject Person”) acquired Beneficial
Ownership of more than the permitted amount of the then outstanding
Shares or Voting Securities as a result of the acquisition of
Shares or Voting Securities by the Company which, by reducing the
number of Shares or Voting Securities then outstanding, increases
the proportional number of shares Beneficially Owned by the Subject
Persons; provided that if a Change in Control would occur (but for
the operation of this sentence) as a result of the acquisition of
Shares or Voting Securities by the Company and, after such share
acquisition by the Company, the Subject Person becomes the
Beneficial Owner of any additional Shares or Voting Securities and
such Beneficial Ownership increases the percentage of the then
outstanding Shares or Voting Securities Beneficially Owned by the
Subject Person, then a Change in Control shall occur.
2.9 Code shall mean the
Internal Revenue Code of 1986, as amended from time to
time.
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2.10 Committee shall mean a
committee created by the Board to determine compensation matters
involving officers and directors. Any function exercisable by such
Committee may also be exercised by the Board if no such Committee
is ever created or is created and subsequently disbanded. Members
of the Committee may be Board members or other officers of the
Company as designated by the Board.
2.11 Company shall mean
CommScope, Inc., and any successor corporation or other legal
entity thereto.
2.12 Compensation in respect
of any Plan Year shall mean the cash salary and wages paid to the
Participant by the Company, including annual bonuses and
commissions earned and accrued in respect of such Plan Year
(whether or not actually paid in that Plan Year), but excluding
payments associated with any other employee benefit plan, profit
sharing plan, long term incentive or stock and stock option
programs provided by the Company. Compensation shall also include
any salary reduction contributions made by the Company under
another Company sponsored employee benefit plan that satisfies the
requirements of Section 125 or Section 401(k) of the
Code.
2.13 Early Retirement Date
shall mean, unless determined otherwise by the Administrator on a
case–by-case basis, the first day of the calendar month
coincident with or next following the later of the
Participant’s 55th birthday and the completion of 10 years of
Service with the Company.
2.14 Earnings shall mean the
notional investment amounts periodically credited to each
Participant’s Special Account or Regular Account.
2.15 ERISA shall mean the
Employee Retirement Income Security Act of 1974, as amended from
time to time.
2.16 Normal Retirement Date
shall mean the first day of the calendar month coincident with or
next following the Participant’s 65th birthday.
2.17 Participant shall mean
any individual actively employed by the Company or a Subsidiary who
is a member of a select group of management and/or highly
compensated employees and who is designated a Participant by the
Board or the Committee.
2.18 Participation Date shall
mean the date the Participant receives the notice described in
Section 3.1.
2.19 Payment Commencement
Date shall mean the date that a Participant’s
Supplemental Retirement Account Balance is to be paid or commence
to be paid.
2.20 Plan shall mean the
CommScope, Inc. Supplemental Executive Retirement Plan as Amended
and Restated effective April 9, 2009, as further amended from
time to time.
2.21 Plan Year shall mean the
calendar year.
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2.22 Regular Account shall
mean the individual account established for each Participant to
which the Company credits an annual Company contribution and
Earnings as provided in Article IV herein.
2.23 Service shall mean the
period of full time employment of a Participant with (i) the
Company, (ii) a prior parent corporation and/or a prior
Subsidiary, or (iii) a Subsidiary or parent corporation.
Notwithstanding the above, at the complete discretion of the Board
or Committee, Service for purposes of determining any
Participant’s Special Account may include all or any part of
a Participant’s continuous full time employment with the
company with whom such Participant was employed immediately prior
to becoming employed by the Company or Subsidiary.
2.24 Special Account shall
mean the initial individual account established for each
Participant to which the Company credits a single lump sum amount
and Earnings thereafter as provided in Article IV
herein.
2.25 Subsidiary shall mean
any corporation or other legal entity (whether or not
incorporated), in which the Company directly or indirectly owns
either (A) Voting Securities possessing at least 50% of the
Voting Power of such entity, or (B) if such entity does not
issue Voting Securities, at least 50% of the ownership interests in
such entity.
2.26 Supplemental Retirement
Account Balance shall mean the total of the Participant’s
Regular Account and Special Account, including Earnings thereon, as
of any date.
2.27 Survivor’s Benefit
shall mean the Supplemental Retirement Account Balance payable to
the Participant’s Beneficiary in accordance with Article V
herein.
2.28 Separation from Service
shall mean the separation of a Participant’s active Service
with the Company or any Subsidiary, division or unit whether by
voluntary or involuntary separation, retirement, or death. A
Participant will be treated as having a Separation from Service if
it is not reasonably anticipated that the Participant will continue
to provide services to the Company (whether as an employee or
independent contractor, but not as a director) that exceeds twenty
percent (20%) of the average level of bona fide services
performed by the Participant over the immediately preceding
thirty-six (36) month period (or the full period of services
if the Participant has been providing services less than thirty-six
(36) months).
2.29 Vesting Date shall mean,
for any Participant, the date that is one year and 31 days
following the Participant’s Participation Date.
2.30 Voting Power shall mean
the combined voting power of the then outstanding Voting
Securities.
2.31 Voting Securities shall
mean, with respect to the Company or any Subsidiary, any securities
issued by the Company or such Subsidiary, respectively, which
generally entitle the holder thereof to vote for the election of
directors of the Company.
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ARTICLE III
DESIGNATION OF PARTICIPANTS
AND ELIGIBILITY FOR BENEFITS
3.1 Designation of
Participants . An employee shall become a Participant in the
Plan when the Board or the Committee has (i) approved his
selection to become a Participant in the Plan, (ii) determined
the amount of any Special Account to be credited to the employee,
and (iii) notified the employee, in writing, that he is a
Participant in the Plan. Such notice shall be given to a
Participant by the Company with the concurrence of the Board or the
Committee and shall be accompanied by such information as shall be
deemed appropriate to describe the provisions of the Plan and the
benefits hereunder.
3.2 Eligibility for Benefits
. Benefits shall be payable in respect of a Participant
if:
(a) the Participant’s
Separation from Service occurs on or after the later of his Vesting
Date or his Normal Retirement Date;
(b) the Participant’s
Separation from Service occurs on or after the later of his Vesting
Date or his Early Retirement Date;
(c) the Participant’s
Separation from Service occurs as a result of his death while in
active Service before his Early Retirement Date or Normal
Retirement Date and he is survived by his Beneficiary;
(d) the Participant experiences a
Disability, as defined in Section 5.5;
(e) the Participant experiences an
involuntary Separation from Service with the Company on or after
his Vesting Date for reasons other than for Cause; or
(f) the Participant experiences a
Separation from Service for any reason other than by the Company
for Cause within two (2) years after the later of his Vesting
Date or the date of a Change in Control.
Except as provided in (c), (d),
(e) or (f) above, or upon a complete termination of the
Plan in accordance with section 8.1 below, no benefits shall be
payable hereunder with respect to any Participant whose Separation
from Service occurs prior to the earlier of his Early Retirement
Date or his Normal Retirement Date.
3.3 Continued Employment after
Normal Retirement Date . In the event a Participant remains an
active employee of the Company or any Subsidiary, division or unit
after the later of the Vesting Date or his Normal Retirement Date,
his right to benefits under the Plan shall be fully vested, but no
benefits shall be payable to the Participant until the time set
forth in Sections 5.1, 5.2, 5.3, 5.5 or 5.9, as applicable. In
addition, any such Participant who remains an active employee of
the Company or any Subsidiary, division or unit after his Normal
Retirement Date shall continue to be eligible to receive
(i) annual contributions to his Regular Account in accordance
with Section 4.3 and (ii) Earnings on his Special Account
and Regular Account in accordance with Section 4.5
hereof.
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3.4 Continued Eligibility for
Benefits . Notwithstanding the above, the Participant’s
rights to receive, or continue to receive, his Supplemental
Retirement Plan Account Balance shall be contingent on
his:
(a) rendering reasonable business
consulting and advisory services after a Separation from Service as
the Company may reasonably request from time to time;
provided:
(i) It is understood that such
services shall not require the Participant to be active in the
day-to-day activities of the Company, and that the Participant
shall perform such services as an independent
contractor.
(ii) It is further understood that
the Participant shall be reasonably compensated for such services
in an amount to be then agreed upon, and he shall be reimbursed for
all expenses incurred in performing such services.
(b) not performing services similar
to the services performed by the Participant for the Company or any
affiliate of the Company, in any capacity, for any business
enterprise which competes to a substantial degree with the Company,
nor engaging in any activity, including the solicitation of the
Company’s employees, that involves substantial competition
with the Company, without the prior written consent of the Company,
during the greater of (i) the period during which the
Participant is entitled to payments hereunder, and
(ii) t
