Exhibit 10.9.1
FORM OF
AMENDMENT No. 1
to the
SEVERANCE PROTECTION AGREEMENT
THIS AMENDMENT, dated as of the __ day of ____, 1999 (the
"Amendment"), between CommScope, Inc. a Delaware corporation (the
"Company"), and ____________ (the "Executive"), hereby amends the Severance
Protection Agreement, dated as of August 1, 1997 between the Company and
the Executive (the "Severance Agreement") in the manner set forth herein.
WHEREAS, the Company and the Executive desire to amend the Severance
Agreement to exclude from the definition of Change in Control contained in
Section 13.7 thereof all references to Forstmann Little & Co. and/or any of
their affiliates:
WHEREAS, pursuant to Section 8 of the Severance Agreement, the
Severance Agreement may by modified, amended, suspended or terminated by a
written instrument executed by the parties thereto.
NOW, THEREFORE, the parties hereto agree as follows:
1. Section 13.7 of the Severance Agreement is hereby deleted and
replaced in its entirety with the following:
"Change of Control" means, any of the following:
(i) the acquisition by any Person of Beneficial Ownership of
Voting Securities which, when added to the Voting Securities then
Beneficially Owned by such Person, would result in such Person
Beneficially Owning 33% or more of the combined Voting Power of
the Company's then outstanding Voting Securities; provided,
however, that for purposes of this paragraph (i), a Person shall
not be deemed to have made an acquisition of Voting Securities if
such Person: (1) acquires Voting Securities as a result of a
stock split, stock dividend or other corporate restructuring in
which all stockholders of the class of such Voting Securities are
treated on a pro rata basis; (2) acquires the Voting Securities
directly from the Company; (3) becomes the Beneficial Owner of
33% or more of the combined Voting Power of the Company's then
outstanding Voting Securities solely as a result of the
acquisition of Voting Securities by the Company or any Subsidiary
which, by reducing the number of Voting Securities outstanding,
increases the proportional number of shares Beneficially Owned by
such Person, provided that if (x) a Person would own at least
such percentage as a result of the acquisition by the Company or
any Subsidiary and (y) after such acquisition by the Company or
any Subsidiary, such Person acquires Voting Securities, then an
acquisition of Voting Securities shall have occurred; (4) is the
Company or any corporation or other Person of which a majority of
its voting power or its equity securities or equity interest is
owned directly or indirectly by the Company (a "Controlled
Entity"); or (5) acquires Voting Securities in connection with a
"Non-Control Transaction" (as defined in paragraph (iii) below);
or
(ii) the individuals who, as of the Effective Date, are
members of the Board (the "Incumbent Board") cease for any reason
to constitute at least two-thirds of the Board; provided,
however, that if either the election of any new director or the
nomination for election of any new director by the Company's
stockholders was approved by a vote of at least two-thirds of the
Incumbent Board prior to such election or nomination, such new
director shall be considered as a member of the Incumbent Board;
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 either an actual or threatened
"Election Contest" (as described in Rule 14a-11 promulgated under
the 1934 Act) or other 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 Election Contest or Proxy
Contest; or
(iii) approval by stockholders of the Company of:
(A) a merger, consolidation or reorganization involving
the Company (a "Business Combination"), unless
(1) the stockholders of the Company, immediately
before the Business Combination, own, directly or
indirectly immediately following the Business
Combination, at least a majority of the combined voting
power of the outstanding voting securities of the
corporation resulting from the Business Combination
(the "Surviving Corporation") in substantially the same
proportion as their ownership of the Voting Securities
immediately before the Business Combination, and
(2) the individuals who were members of the
Incumbent Board immediately prior to the execution of
the agreement providing for the Business Combination
constitute at least a majority of the members of the
Board of Directors of the Surviving Corporation, and
(3) no Person (other than the Company or any
Controlled Entity, a trustee or other fiduciary holding
securities under one or more employee benefit plans or
arrangements (or any trust forming a part thereof)
maintained by the Company, the Surviving Corporation or
any Controlled Entity, or any Person who, immediately
prior to the Business Combination, had Beneficial
Ownership of 33% or more of the then outstanding Voting
Securities) has Beneficial Ownership of 33% or more of
the combined voting power of the Surviving
Corporation's then outstanding voting securities (a
Business Combination satisfying the conditions of
clauses (1), (2) and (3) of this subparagraph (A) shall
be referred to as a "Non-Control Transaction");
(B) a complete liquidation or dissolution of the
Company; or
(C) the sale or other disposition of all or
substantially all of the assets of the Company (other than a
transfer to a Controlled Entity).
Notwithstanding the foregoing, a Change of Control shall not be deemed
to occur solely because 33% or more of the then outstanding Voting
Securities is Beneficially Owned by (x) a trustee or other fiduciary
holding securities under one or more employee benefit plans or arrangements
(or any trust forming a part thereof) maintained by the Company or any
Controlled Entity or (y) any corporation which, immediately prior to its
acquisition of such interest, is owned directly or indirectly by the
stockholders of the Company in the same proportion as their ownership of
stock in the Company immediately prior to such acquisition.
2. Except as expressly set forth herein, the Severance Agreement shall
remain in full force and effect.
IN WITNESS WHEREOF, each of the parties hereby has executed this
Amendment as of the date first above written.
COMMSCOPE, INC. EXECUTIVE
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