**Exhibit10-a**

 

EMPLOYMENT AGREEMENT

 

This EMPLOYMENT AGREEMENT(“Agreement”), dated as of February 3, 2003, is made and entered into betweenADC Telecommunications, Inc., a Minnesota corporation (“EMPLOYER”) and WilliamF. O’Brien (“Employee”).

 

**WHEREAS**, Employee hasbeen employed by EMPLOYER since May 21, 2001 (“Hire Date”); and

 

**WHEREAS**, EMPLOYER’soffer letter to Employee, dated May 2, 2001, (“Offer Letter”) provides thatEmployee will receive certain severance benefits if his employment isterminated without cause and within 36 months of his Hire Date, provided hesigns an ADC waiver and release agreement; and

 

**WHEREAS**, EMPLOYER hasnotified Employee that his employment will terminate no later than June 30,2003, and the parties acknowledge that such date is within 36 months of hisHire Date; and

 

**WHEREAS,** the partieswish to enter into an agreement for the duration of Employee’s employment withEMPLOYER; and

 

**WHEREAS,** the partiesacknowledge and agree that the terms of this Agreement fulfill and satisfy theobligations provided in the Offer Letter;

 

**NOWTHEREFORE**, in consideration of the mutual obligationsincurred and benefits obtained hereunder, the sufficiency of which is admitted,EMPLOYER and Employee agree as follows:

 

1.        Employment.  EMPLOYER hereby employs Employee, andEmployee accepts such employment and agrees to perform services for EMPLOYER orany affiliate of EMPLOYER (collectively, the “EMPLOYER Affiliates”), for theperiod and upon the other terms and conditions set forth in this Agreement.

 

2.        Term.  Unless terminated at an earlier date byEmployee in accordance with Section 6.03 or by EMPLOYER for Cause in accordancewith Section 6.02 of this Agreement, this Agreement shall take effect andEmployee’s employment hereunder shall commence immediately and shall end onJune 30, 2003 (the “Term”).  The partiesagree that the last 28 days of the Term shall be a paid leave of absenceperiod, during which period Employee may accept work with another company.

 

3.        Position and Duties.

 

3.01         Servicewith EMPLOYER.  Employee will reportsolely to the Chief Executive Officer of EMPLOYER (“CEO”) and performtransition responsibilities, special projects, and other assignments asassigned from time to time by the CEO. Employee may, at his election, work from EMPLOYER’s offices inMassachusetts.  Employee acknowledgesand agrees that, from time to time, Employee may be required by the CEO toperform duties with respect to one or more EMPLOYER Affiliates.  The parties intend that Employee act in anadvisory and transitional role, and do not consider Employee to be an Officerof EMPLOYER during the Term; provided, however, that Employee agrees during theTerm not to engage in any transactions involving EMPLOYER’s securities withoutfirst obtaining review by EMPLOYER’s internal SEC counsel.

 

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3.02         Performanceof Duties.  Employee agrees to serveEMPLOYER faithfully and to the best of Employee’s ability and, subject to theprovisions of Section 6.04(c), to devote Employee’s time, attention and effortsto the business and affairs of EMPLOYER during the term of Employee’semployment.  Employee hereby confirmsthat Employee is under no contractual commitments inconsistent with Employee’sobligations set forth in this Agreement and that, during the term of thisAgreement, Employee will not render or perform any services for any othercorporation, firm, entity or person which are inconsistent with the provisionsof this Agreement or which would otherwise impair Employee’s ability to performEmployee’s duties hereunder.

 

3.03         Nondisparagement.  Employee agrees not to make any disparaging comments regarding ADC,its affiliates or any present, former orfuture director, officer, employee, advisor or agent of ADC.

 

4.        Compensation.

 

4.01         BaseSalary.  As base compensation forthe Term of this Agreement, EMPLOYER shall pay to Employee an annualized salaryof $280,000.00.  Employee’s salary shallbe paid in accordance with EMPLOYER’s normal payroll procedures and policies,as such procedures and policies may be modified from time to time.

 

4.02         Participationin Benefits. *** ***During the Term of theAgreement, Employee shall be entitled to participate in the employee benefitsoffered generally by EMPLOYER to its employees, to the extent that Employee’sgrade level (23), pay level, position, tenure, salary, health, and otherqualifications make Employee eligible to participate.  Employee’s participation in such benefits shall be subject to theterms of the applicable plans, as the same may be amended from time totime.  EMPLOYER does not guarantee theadoption or continuance of any particular employee benefit during Employee’semployment, and nothing in this Agreement is intended to, or shall in any wayrestrict the right of EMPLOYER, to amend, modify or terminate any of itsbenefits during the term of Employee’s employment; provided, however, thatEMPLOYER agrees during the Term not to modify any of its benefit plans solelyin order to exclude Employee.

 

4.03         ExecutivePerquisites.  During the Term ofthis Agreement, Employee will be eligible to receive any executive perquisites,including the executive perquisite allowance of $10,000 (annualized), thatEMPLOYER may from time to time deem are appropriate and administrativelyfeasible to provide to EMPLOYER executives who are similar in grade level, paylevel, position, title and duties to Employee. Employee understands that EMPLOYER may in its sole discretion modify orterminate any executive perquisite offered to Employee; provided, however, thatEMPLOYER agrees during the Term not to modify any of its executive perquisitessolely in order to exclude Employee.

 

4.04         StockOptions.  At all times, includingduring the Term of the Agreement, any stock options granted to Employee aregoverned by the terms and conditions of the applicable stock option plan andstock option agreement.  Nothing in thisAgreement is intended to amend or modify any such plans or agreements.

 

4.05         Expenses.  In accordance with EMPLOYER’s normalpolicies for expense reimbursement, EMPLOYER will reimburse Employee for allreasonable and necessary expenses incurred by Employee in the performance ofEmployee’s duties under this 

 

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Agreement, subject to the presentment of receipts or otherdocumentation acceptable to EMPLOYER.

 

5.        ConfidentialInformation/Intellectual Property; Other Employment Policies.  As of May 15, 2001, Employee executed anddelivered to EMPLOYER the Employee Invention, Copyright and Trade SecretAgreement, a copy of which is attached hereto as **Exhibit A** (the “EmployeeInvention Agreement”), and Employee agrees to comply with the EmployeeInvention Agreement.  Employee shallalso comply with all of the applicable policies generally in effect foremployees of EMPLOYER or any applicable EMPLOYER Affiliate for which Employeeperforms services, including without limitation, EMPLOYER’s Code of BusinessConduct and EMPLOYER’s policies on trading in EMPLOYER’s securities, as thesame may be amended from time to time.

 

6.        Termination.

 

6.01     Termination Due to Employee’s Death or TotalDisability.  Employee’semployment pursuant to this Agreement shall terminate automatically prior tothe expiration of the Term in the event of Employee’s death or Employee’s totaldisability which results in Employee’s inability to perform the essentialfunctions of Employee’s position, with or without reasonable accommodation,provided Employee has exhausted Employee’s entitlement to any applicable leave.

 

6.02     Termination by EMPLOYER for Cause.  Employee’s employment pursuant to thisAgreement shall terminate prior to the expiration of the Term in the eventEMPLOYER shall determine, upon written notification from the CEO to Employee,that there is “cause” to terminate Employee’s employment, which shall includeany of the following:

 

(a)           Employee’sintentional breach of any contractual obligation to EMPLOYER or any EMPLOYERAffiliate under the terms of this Agreement, where such breach is substantiallydetrimental to EMPLOYER, or Employee’s breach of the Employee Invention Agreementor of any fiduciary duty to EMPLOYER or any EMPLOYER Affiliate;

 

(b)           Employee’sconviction of any crime involving moral turpitude or any felony;

 

(c)           Employee’sintentional failure to carry out any reasonable directive of the CEO ;provided, that, Employee shall have fourteen (14) days to cure any such failureafter the CEO provides Employee written notice of the failure;

 

(d)           Employee’sembezzlement of funds of EMPLOYER or any EMPLOYER Affiliate;

 

(e)           Anyintentional failure by Employee to comply with EMPLOYER’s Code of BusinessConduct or policies, or, as applicable, any EMPLOYER Affiliate; or

 

(f)            Anyconduct that causes substantial and irreparable harm or disruption to EMPLOYER.

 

6.03     Termination by Employee.  Employee may terminate this Agreement at anytime during the Term by giving 10 days written notice thereof to EMPLOYER’s 

 

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Vice President, Human Resources. Upon notice of termination by Employee, EMPLOYER may at its option electto have Employee cease to provide services immediately, provided that duringsuch 10–day notice period Employee shall be entitled to compensation andbenefits pursuant to Section 4.

 

6.04     Termination Compensation.  Upon Employee’s termination by EMPLOYERwithout cause on June 30, 2003 or upon Employee’s voluntary termination beforeJune 30, 2003 pursuant to Section 6.03, and only if Employee signs and does notrescind a waiver and release of claims in the form attached hereto as **Exhibit B**,then Employee shall be entitled to receive the following:

 

(a)                                  A lump sum payment of$258,000.00, less applicable withholdings, payable after the 28 day paid leaveof absence period referenced in Section 2, and payable within three (3)business days after the expiration of applicable rescission periods referencedin Exhibit B; and

 

(b)                                 Payment byEMPLOYER of the EMPLOYER’s contribution for medical and dental insurancepremiums for the two full months immediately following the month in whichEmployee’s employment terminates, if Employee elects to continue coveragethrough COBRA; and

 

(c)                                  “Key executive” transitionaloutplacement assistance paid by ADC through Right Management, it beingunderstood that Employee may immediately utilize such assistance as of the datethis Agreement is fully executed.

 

After termination for any reason, Employee will also receive paymentfor any unused PTO in accordance with EMPLOYER’s ordinary payrollpractices.  This section shall notaffect any other benefits for which Employee may be eligible pursuant to applicablefederal or state statute, if any.

 

6.05     Effect of Termination.  Notwithstanding any termination of Employee’s employment withEMPLOYER, Employee, in consideration of Employee’s employment hereunder to thedate of such termination, shall remain bound by the provisions of thisAgreement and any other agreements which specifically relate to periods,activities or obligations upon or subsequent to the termination of Employee’semployment, including, but not limited to, the covenants contained in Section7, the Employee Invention Agreement and any applicable stock option agreements.

 

In the event that Employee’s employment terminatesdue to Employee’s death or total disability, or EMPLOYER terminates Employee’semployment for Cause in accordance with Section 6.02, Employee shall not beentitled to receive any Termination Compensation or any further compensationunder the provisions of this Agreement after the date of such termination,subject to applicable law and the provisions of any applicable employee benefitplans for which Employee may be eligible.

 

Notwithstanding any other provision in thisAgreement, should Employee’s employment be terminated for any reason, Employeewill not earn and will have no right to receive any compensation except asexpressly provided in this Agreement or in the terms and conditions of anEMPLOYER compensation or benefit plan or program referenced herein.

 

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6.06         Surrenderof Records and Property.  UponEmployee’s last day worked with EMPLOYER, Employee shall deliver promptly toEMPLOYER the SecurID Net Access card, and all records, manuals, books, blankforms, documents, letters, memoranda, notes, notebooks, reports, computerdisks, computer software, computer programs (including source code, objectcode, on-line files, documentation, testing materials and plans and reports),designs, drawings, formulae, data, tables or calculations or copies thereof,which are the property of EMPLOYER or any EMPLOYER Affiliate or which relate inany way to the business, products, practices or techniques of EMPLOYER or anyEMPLOYER Affiliate, and all other property, trade secrets and confidentialinformation of EMPLOYER or any EMPLOYER Affiliate, including, but not limitedto, all tangible, written, graphical, machine readable and other materials(including all copies) which in whole or in part contain any trade secrets orconfidential information of EMPLOYER or any EMPLOYER Affiliate which in any ofthese cases are in Employee’s possession or under Employee’s control.  This Section 6.06 shall not apply toEmployee’s copy of his Offer Letter and Employee’s other personal copies ofdocuments related to this Agreement or describing Employee’s compensation orbenefits.

 

7.        Nonsolicitation.

 

7.01         NonsolicitationRestricted Period.  As used in thisAgreement, “Restricted Period” shall mean the period commencing on theeffective date of this Agreement and ending on the date that is one year afterEmployee’s employment with EMPLOYER is terminated (for whatever reason andwhether such termination is occasioned by Employee or EMPLOYER).

 

7.02         Nonsolicitation;Non-hire and Noninterference. During the Restricted Period, Employee shall not (a) induce or attemptto induce any employee of EMPLOYER or any EMPLOYER Affiliate to leave theemploy of EMPLOYER or such EMPLOYER Affiliate, or in any way interfereadversely with the relationship between any such employee and EMPLOYER or suchEMPLOYER Affiliate; (b) induce or attempt to induce any employee of EMPLOYER orany EMPLOYER Affiliate to work for, render services to, provide advice to, orsupply confidential business information or trade secrets of EMPLOYER or anyEMPLOYER Affiliate to any third person, firm or corporation; or (c) employ, orotherwise pay for services rendered by, any employee of EMPLOYER or anyEMPLOYER Affiliate in any business enterprise with which Employee may beassociated, connected or affiliated.

 

7.03         IndirectSolicitation.  Employee agrees that,during the Restricted Period, Employee will not, directly or indirectly,assist, solicit or encourage any employee of Employer or Employer Affiliate, orany other person in carrying out, directly or indirectly, any activity thatwould be prohibited by the provisions of this Section 7 if such activity werecarried out by Employee, either directly or indirectly.

 

7.04         Notificationof Employment.  If at any timeduring the Restricted Period Employee accepts new employment or becomesaffiliated with a third party, Employee shall immediately notify EMPLOYER ofthe identity and business of the new employer or affiliation.  Employee hereby consents to EMPLOYER’snotification to any such new employer or business venture of the terms ofSections 5, 7 and Exhibit A of this Agreement.

 

7.05         FutureEmployment.  EMPLOYER acknowledgesthat the parties have not entered into a Noncompetition Agreement and theparties have not sought to restrict 

 

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Employee’s ability to seek employment with EMPLOYER’s competitors; provided,however, that Employee remains obligated to fulfill all obligations under theEmployee Invention Agreement, this Section 7, and any other agreements orcommon law or statutory obligations otherwise applicable to him.

 

8.        Change InControl.  Employee will be eligible forcoverage under EMPLOYER’s Change In Control policy, according to the terms ofthat policy, as the same may be amended from time to time.  EMPLOYER does not guarantee the continuanceof its Change In Control policy during Employee’s employment, and nothing inthis Agreement is intended to, or shall in any way restrict the right ofEMPLOYER, to amend, modify or terminate its Change In Control policy during theterm of Employee’s employment; provided, however, that EMPLOYER agrees duringthe Term not to modify its Change In Control policy solely in order to excludeEmployee.

 

The rest of this Agreement notwithstanding, during the Term, if theEmployee’s termination would also be covered by EMPLOYER’s then current ChangeIn Control policy, the Employee will be eligible to receive the greater of (i)the Termination Compensation described in Section 6.04 (provided the Employeesatisfies the requirements for that payment, as are described therein), or (ii)the termination compensation provided for in the then current Change In Controlpolicy, but not both.

 

9.        Miscellaneous.

 

9.01         GoverningLaw and Venue Selection.  ThisAgreement is made under and shall be governed by and construed in accordancewith the laws of the State of Minnesota without regard to conflicts of lawsprinciples thereof, of any of the United States of America, or of any othercountry, province or city.  The partiesagree that any litigation in any way relating to this Agreement or to Employee’semployment by EMPLOYER, including but not limited to the termination of thisAgreement or Employee’s employment, will be venued in the State of Minnesota,Hennepin County District Court, or the United States District Court for theDistrict of Minnesota.  Employee andEMPLOYER hereby consent to the personal jurisdiction of these courts and waiveany objection that such venue is inconvenient or improper.

 

9.02         PriorAgreements.  This Agreement(including other agreements specifically mentioned in this Agreement) containsthe entire agreement of the parties relating to the employment of Employee byEMPLOYER and the other matters discussed herein and supersedes all priorpromises, contracts, agreements and understandings of any kind, whether expressor implied, oral or written, with respect to such subject matter (including,but not limited to, any promise, contract or understanding, whether express orimplied, oral or written, by and between EMPLOYER and Employee), and theparties hereto have made no agreements, representations or warranties relatingto the subject matter of this Agreement which are not set forth herein or inthe other agreements mentioned herein.

 

9.03         WithholdingTaxes.  EMPLOYER or any EMPLOYERAffiliate, as applicable, may take such action as it deems appropriate toinsure that all applicable federal, state, city and other payroll, withholding,income or other taxes (“Taxes”) arising from any compensation, benefits or anyother payments made pursuant to this Agreement, or any other contract,agreement or understanding which relates, in whole or in part, to Employee’semployment with EMPLOYER or any EMPLOYER Affiliate, are withheld or collectedfrom Employee.

 

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9.04         Amendments.  No amendment or modification of thisAgreement shall be deemed effective unless made in writing and signed byEmployee and EMPLOYER.

 

9.05         NoWaiver.  No term or condition ofthis Agreement shall be deemed to have been waived, nor shall there be anyestoppel to enforce any provisions of this Agreement, except by a statement inwriting signed by the party against whom enforcement of the waiver or estoppelis sought.  Any written waiver shall notbe deemed a continuing waiver unless specifically stated, shall operate only asto the specific term or condition waived, and shall not constitute a waiver ofsuch term or condition for the future or as to any act other than asspecifically set forth in the waiver.

 

9.06         Assignment.  This Agreement shall not be assignable, inwhole or in part, by any party without the written consent of the other party,except that EMPLOYER may, without the consent of Employee, assign its rightsand obligations under this Agreement to any EMPLOYER Affiliate or to anycorporation, firm or other business entity with or into which EMPLOYER maymerge or consolidate, or to which EMPLOYER may sell or transfer all orsubstantially all of its assets, or of which 50% or more of the equityinvestment and of the voting control is owned, directly or indirectly, by, oris under common ownership with, EMPLOYER. After any such assignment by EMPLOYER, EMPLOYER shall be discharged fromall further liability hereunder and such assignee shall thereafter be deemed tobe EMPLOYER for the purposes of all provisions of this Agreement including thisSection 9.06.

 

9.07         InjunctiveRelief.  Employee acknowledges andagrees that the services to be rendered by Employee hereunder are of a special,unique and extraordinary character, that it would be difficult to replace suchservices and that any violation of Sections 5, 6.06 or 7 hereof or of theEmployee Invention Agreement would be highly injurious to EMPLOYER and/or toany EMPLOYER Affiliate and that it would be extremely difficult to compensateEMPLOYER and/or any EMPLOYER Affiliate fully for damages for any suchviolation.  Accordingly, Employeespecifically agrees that EMPLOYER or any EMPLOYER Affiliate, as the case maybe, shall be entitled to temporary and permanent injunctive relief to enforcethe provisions of Sections 5, 6.06 and 7 hereof, and the EmployeeInvention Agreement and that such relief may be granted without the necessityof proving actual damages and without necessity of posting any bond.  This provision with respect to injunctiverelief shall not, however, diminish the right of EMPLOYER or any EMPLOYERAffiliate to claim and recover damages, or to seek and obtain any other reliefavailable to it at law or in equity, in addition to injunctive relief.

 

9.08         Severability.  To the extent any provision of thisAgreement shall be determined to be invalid or unenforceable in anyjurisdiction, such provision shall be deemed to be deleted from this Agreementas to such jurisdiction only, and the validity and enforceability of theremainder of such provision and of this Agreement shall be unaffected.  In furtherance of and not in limitation ofthe foregoing, Employee expressly agrees that should the duration of,geographical extent of, or business activities covered by, any provision ofthis Agreement be in excess of that which is valid or enforceable underapplicable law in a given jurisdiction, then such provision, as to suchjurisdiction only, shall be construed to cover only that duration, extent oractivities that may validly or enforceably be covered.  Employee acknowledges the uncertainty of thelaw in this respect and expressly stipulates that this Agreement shall beconstrued in a manner that renders its provisions valid and enforceable to themaximum extent (not exceeding its express terms) possible under applicable lawin each applicable jurisdiction.

 

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IN WITNESS WHEREOF, theparties have executed this Agreement as of the date set forth in the firstparagraph.

 
|   |                    |                             |
|--------|-------------------------|----------------------------------|
|   | **EMPLOYER**            |                             |
|   |                    |                             |
|   | By                      | /s/ Laura N. Owen                |   |
|   | Name:                   | Laura N. Owen                    |   |
|   | Title:                  | Vice President, Human  Resources |   |
|   |                    |                             |
|   | **EMPLOYEE**            |                             |
|   |                    |                             |
|   |                    | /s/ William F. O’Brien      |   |
|   | William F. O’Brien |                             |
|        |                         |                                  |  |  |

 

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Exhibit A

 
|        | **INVENTION, COPYRIGHT AND  TRADE SECRET AGREEMENT** |
|--------|------------------------------------------------------|
|   |                                                 |

 

In part consideration for my employment by ADC The Broadband Company,its affiliates, subsidiaries, successors and assigns, hereinafter referred toas the “Company” I hereby agree:

 

1.                                       A) To disclose promptly and fully to the Company or its authorizedrepresentatives, all inventions, improvements, discoveries, and copyrightablesubject matter made, conceived, reduced to practice or originated by me, eithersolely or jointly with others during the term of my employment with the Companyand to assign transfer and convey to the Company or its authorized representative,both during or subsequent to the term of my employment upon request, allrights, title and interest in and to all such inventions, improvements,discoveries and copyrightable subject matter.

 

B)  The term ofthese provisions shall extend to all such inventions, improvements,discoveries, and copyrightable subject matter made or conceived by me withinone year after termination of my employment if related to product or processupon which I worked during the last three years of my employment with theCompany.

 

C)  To theextent, if any, that Minnesota law is determined to apply to the enforcement ofthe agreement, Minnesota Statute 181.78 provides that the agreement does notapply, and written notification is hereby given to me that this agreement doesnot apply, to an invention for which no equipment, supplies, facilities ortrade secret information of the Company was used and which was developedentirely on my own time, and

 
| i)     |   | which does not relate:                                                |
|--------|--------|-----------------------------------------------------------------------|
|   |   | a)                                                                    | directly to the business of the Company, or |
|   |   | b)                                                                    | to the Company’s actual or demonstrably anticipated  research or development, or |
| ii)    |   | which does not result from any work performed by me  for the Company. |
|   |   |                                                                  |

2.                                       To make, execute and deliver at therequest of the Company all application papers, assignments and instruments andto perform all other lawful acts which the Company may request in making orprosecuting applications for domestic or foreign patents,

 

 

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reissues and extensions thereof, and to assist andcooperate with the Company or its representatives in any controversy or legalproceeding relating to said inventions, improvements, discoveries andcopyrightable subject matter and the patents and registrations which may beprocured thereon.

 

3.                                       To hold in strictest confidence, and notto use or disclose to any person, firm or corporation  either during the term of any employment or afterwards, withoutthe express written authorization of an officer of the Company, annon-published information, manufacturing technique, process, formula, developmentor experimental work, work in process, business, trade secret, or any othersecret or confidential matter relating to the products, customers, sales orbusiness of the company (or of a third party if disclosed to the Company bysuch third party in confidence), except as such disclosure or use may berequired in connection with my work for the Company, and,

 

4.                                       Upon leaving the employ of the Company,to deliver promptly to the Company all models, samples, tools, equipment,notes, books, correspondence, drawings and other written and graphical recordsin my possession or under my control relating to the business, work orinvestigation of the Company.

 

As a matter of record, I have set forth below a complete list and briefdescription of all patented and unpatented inventions which I have made,conceived and reduced to practice and all copyrightable subject matter createdby me prior to my employment by the Company and which are not to be included inthis agreement.  Except as so listed, Iwill not assert any rights under any inventions, improvements, discoveries andcopyrightable subject matter as having been made or acquired by me prior to myemployed by the Company.  The Companymay at its discretion, require a detailed disclosure and/or working model orthe inventions to list.

 

 

This agreement shall supersede all similar previous agreements with theCompany.

 
| Dated this 15th day of May , 2001. |                        |
|-----------------------------------------|-----------------------------|
|                                    |                        |
|                                    | /s/ William F. O’Brien |   |   | William F. O’Brien |   |
| Employee Signature                      | Please Print Full Name      |
|                                    |                        |
| **WITNESS:**                            |                        |
|                                    |                        |
|                                    | /s/ Cori Wideman            |   |   | HR Admin |   |
| Signature of Company Representative     | Please Print Full Name      |
|                                         |                             |  |  |  |  |  |

 

 

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Exhibit B

 

WAIVER AND

RELEASE AGREEMENT

 

ThisWaiver and Release Agreement (“Release”) is made and entered into by andbetween William F. O’Brien (“Employee”) and ADC Telecommunications, Inc.  (“ADC”). The parties to this Release wish to memorialize in this written Releaseand to settle and resolve amicably and voluntarily any and all claims anddifferences that they may have pursuant to the terms of this Release.

 

Theparties have previously entered into an Employment Agreement, dated February 3,2003, (“Employment Agreement”).

 

NOWTHEREFORE, in consideration of the mutual covenants and agreements set forth hereinand other good and valuable consideration, the receipt and adequacy of whichare hereby acknowledged,

 

IT IS HEREBYAGREED AS FOLLOWS:

 

1.        **Period of Time to Consider Signing this Release**. ***Employee cannot accept this Release by signing it until employee’sTermination Date.  If signed before theTermination Date, the Release is void and not enforceable.***  If Employee chooses to accept this Release,it must be signed by Employee and returned to Mary Pat Pearson at ADC by the 45thday after Employee receives this Release or by the seventh day followingEmployee’s Termination Date, whichever date occurs last.  The parties agree that any changes made tothis Release by the parties prior to signing, whether material or immaterial,do not restart the running of the time period Employee has to consider signingthis Release.

 

2.        **Consideration****.**As consideration for Employee signing this Release, and providing employee hasnot rescinded, ADC agrees to provide Employee with the payments described inSection 6.04 of the Employment Agreement under the terms stated therein as fulland fair consideration for the covenants, representations, waivers and releasesset forth herein.

 

3.**       ****Waiverand General Release of Claims.****** By this Release, ADC and Employee also intend to settle any andall claims Employee has or may have against ADC as the result of Employee’semployment and or termination of employment with ADC prior to the date Employeeexecutes this Release.  In exchange forthe consideration expressed in this Release, Employee hereby completelyreleases and waives any and all claims, complaints, causes of action, demands,suits, and damages of any kind or character, which Employee has or may haveagainst ADC and/or its employees, agents, consultants, officers, directors, counsel,predecessors, successors, subsidiaries, affiliates, assigns, and insurers andeach and all thereof (collectively, the “Released Parties”), arising out of anyacts, omissions, statements, conduct, decisions, behavior or events occurringup through the date of Employee’s signature on this Release.

 

Employee understands and accepts that Employee’srelease of claims includes but is not limited to claims based upon:  Title VII of the Federal Civil Rights Act of1964, as amended; the Americans with Disabilities Act; the Age Discriminationin Employment Act of 1967, as amended; Sections 1981 through 1988 of Title 42of the United States Code, as amended; The Family and Medical Leave Act; theEqual Pay Act; the Fair Labor Standards Act; the Employee Retirement IncomeSecurity Act; the Worker Adjustment Retraining Notification Act; the MinnesotaHuman Rights Act; any and all federal, state, or local employment laws, rules,regulations or public policies which apply to Employee in the state 

 

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of Employee’s legal residence and in any state where Employee has beenemployed by ADC; and any other federal state or local statute, ordinance orlaw.  Employee also understands thatEmployee is giving up all other claims, including those grounded in contract ortort theories or other common law, including but not limited to:  wrongful discharge, violation of Minn. Stat.Section 176.82; breach of contract; tortious interference with contractualrelations; promissory estoppel; breach of the implied covenant of good faithand fair dealing; breach of express or implied promise; breach of manuals orother policies; breach of fiduciary duty; assault; battery; fraud; falseimprisonment; invasion of privacy; intentional or negligent misrepresentation;defamation, including libel, slander, discharge defamation and self publicationdefamation; discharge in violation of public policy; intentional or negligentinfliction of emotional distress; or any other theory, whether legal or equitable.  This release of claims further includes allclaims relating to or arising from, Employee’s right to purchase or the actualpurchase of shares of ADC stock, including without limitation, to any claimsfor fraud, misrepresentation, breach of fiduciary duty, breach of duty underapplicable state corporate law, and securities fraud under any state or federallaw.

 

Employee further understands that Employee isreleasing, and does hereby release, any claims for damages, by charge orotherwise, whether brought by Employee or on Employee’s behalf by any otherparty, governmental or otherwise, and agrees not to institute any claims fordamages via administrative or legal proceedings against any of the ReleasedParties.  Employee also waives andreleases any and all rights to money damages or other legal relief awarded byany governmental agency related to any charge or other claim.

 

This Release is not intended to modify or waive anyexisting employee benefit plan or insurance coverage for which Employee may havebeen eligible under the terms and conditions of such plans or policies, nor toaffect any applicable indemnification provisions for which Employee may havebeen eligible.

 

4.        **Covenant Not to Sue**.  Employeeagrees that Employee has not and will not file any grievance, complaint, claimor charge with any local, state or federal agency or judicial body concerningany matter that is the subject of this Release.

 

5.        **Stock Options****.**  Effective as of Employee’s Termination Date,all unvested Employee stock options held by Employee shall expire and beterminated in accordance with the terms of the applicable ADC stock option plandocument and any applicable option agreements reflecting such stock options.

 

6.        **Cooperation****. **Employee agrees to reasonably and in good faith beavailable to, cooperate with and assist ADC as it may reasonably request in connection with any litigation orother legal proceeding, claims or potential claims, or any internal or governmental investigation with respect to matters about which Employee has or may have knowledgeas a result of or in connection with Employee’s employment with ADC.  In the event ADC requests Employee’sassistance in any litigation or regulatory matter after Employee’s employmenttermination, ADC will pay or reimburse Employee for any out-of-pocket costs andfor any time Employee spends on such matter as requested by ADC, at a dailyrate based on Employee’s base salary at the time of termination.

 

7.        **No Admission****.** Nothing in this Release is intended to be, nor will be deemed to be, anadmission of liability by ADC that it has violated any state or federalstatute, local ordinance, or principle of common law, or that it has engaged inany wrongdoing.  ADC expressly deniesany such liability.

 

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8.        **Entire Agreement****.** This Release, the Employment Agreement (andthe agreements referenced herein) constitute the entire agreement between theparties with respect to Employee’s employment relationship with ADC.  The parties agree that there were noinducements or representations leading to the execution of this Release oragreements between the parties other than those contained in the Release.  Any modification of or addition to this Releasemust be in a writing signed by Employee and ADC.

 

9.        **Governing Law, Principles of Construction and VenueSelection****.** This Release is made under and shall be governed by and construedin accordance with the laws of the State of Minnesota, without regard toconflicts of laws principles thereof, or those of any other state of the UnitedStates of America, or of any other country, province or city.  The parties agree that any litigation in anyway relating to this Release or to Employee’s employment by ADC, will be venuedin the State of Minnesota, Hennepin County District Court, or the United StatesDistrict Court for the District of Minnesota. Employee and ADC hereby consent to the personal jurisdiction of thesecourts and waive any objection that such venue is inconvenient or improper.

 

10.       **Successors and Assigns****.** This Release shall be binding upon each partyand upon the party’s heirs, administrators, representatives, executors,successors and assigns.  This Releaseshall inure to the benefit of the parties as well as their heirs, administrators,representatives, executors, successors and assigns.

 

11.       **Severability****.** To the extent any provision of this Release shall be determined to beinvalid or unenforceable in any jurisdiction, such provision shall be deemed tobe deleted from this Release as to such jurisdiction only, and the validity andenforceability of the remainder of such provision and of this Release shall beunaffected.

 

12.       **RIGHT TO REVOKE AND RESCIND****.  After signing anddating this Release, Employee may revoke it insofar as it extends to Employee’srelease of claims under the Age Discrimination in Employment Act and theMinnesota Human Rights ACT (MHRA) only if Employee delivers a writtenrescission to ADC within fifteen (15) days after signing this Release.  In either case, Employee must deliver anysuch revocation by hand within the applicable period or send such revocation bycertified mail within the applicable period to Laura Owen, Vice President –Human Resources, ADC Telecommunications, Inc., 13625 Technology Drive, Eden Prairie,MN  55344-2252; or P.O. Box 1101,Minneapolis, MN  55440-1101.  If Employee exercises such right to revoke,ADC may at its option either nullify this Release or keep it in effect in allrespects other than as to Employee’s release of claims that Employee hasrevoked.  If ADC chooses to nullify thisRelease, neither Employee nor ADC shall have any rights or obligations underit.**

 

13.       **Acknowledgment****.**  Employee affirms that Employee has read thisRelease and understands that it includes a waiver and release of legal rightsEmployee may have.  Employeeacknowledges that Employee has had the opportunity to consult with counsel ofEmployee’s own choosing prior to signing the Release and that Employee issigning the document voluntarily and without any pressure or coercion of anynature from ADC.  Employee acknowledgesthat this Release is null and void if signed prior to Termination Date.

 

Employee affirms that Employee understands Employee is being terminatedas part of a group layoff and employees having a similar grade level subject tothe group layoff are eligible for the consideration referenced in thisRelease.  Employee acknowledges receiptof the attached additional information reflecting job titles and ages of allrelevant individuals in the decisional unit selected for termination andeligible for severance payments, and the ages of all individuals who were noteligible or selected for termination.

 

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| William F. O’Brien | ADC Telecommunications, Inc. |
|-------------------------|------------------------------|
|                    |                         |
|                    |                         |
|                    |                         | By: |   |   |
|                    |                         |   |   |   |
| Date:                   |                         |   | Date: |   |   |
|                         |                              |  |  |  |  |  |  |  |

 

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