**Exhibit10.b**

 

**KRONEACQUISITION**

 

**KEYEMPLOYEE RETENTION PLAN**

 

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**KRONEACQUISITION**

 

**KEYEMPLOYEE RETENTION PLAN**

 

**TABLEOF CONTENTS**

 
| ARTICLE I.   | DEFINITIONS AND  INTERPRETATIONS            |                                                                |
|-------------------|---------------------------------------------|---------------------------------------------------------------------|
|              |                                        |                                                                |
|              | Section 1.01                           | Definitions                                                         |   |
|              | Section 1.02                           | Interpretation                                                      |   |
|              |                                        |                                                                |
| ARTICLE II.  | ELIGIBILITY AND BENEFITS                    |                                                                |
|              |                                        |                                                                |
|              | Section 2.01                           | Eligible Employees                                                  |   |
|              | Section 2.02                           | Termination Notices from Participants                               |   |
|              | Section 2.03                           | Termination Notices from Company                                    |   |
|              |                                        |                                                                |
| ARTICLE III. | SEVERANCE AND RELATED  TERMINATION BENEFITS |                                                                |
|              |                                        |                                                                |
|              | Section 3.01                           | Termination of Employment                                           |   |
|              | Section 3.02                           | Termination of Employment Following  Sale of Krone Business Segment |   |
|              | Section 3.03                           | Condition to Receipt of Severance  Benefits                         |   |
|              | Section 3.04                           | Gross-Up Payment                                                    |   |
|              | Section 3.05                           | Limitation of Benefits                                              |   |
|              | Section 3.06                           | Plan Unfunded; Participant’s Rights  Unsecured                 |   |
|              |                                        |                                                                |
| ARTICLE IV.  | DISPUTE RESOLUTION                          |                                                                |
|              |                                        |                                                                |
|              | Section 4.01                           | Negotiation                                                         |   |
|              | Section 4.02                           | Arbitration                                                         |   |
|              | Section 4.03                           | Exclusivity, etc.                                                   |   |
|              |                                        |                                                                |
| ARTICLE V.   | AMENDMENT AND TERMINATION                   |                                                                |
|              |                                        |                                                                |
| ARTICLE VI.  | MISCELLANEOUS PROVISIONS                    |                                                                |
|              |                                        |                                                                |
|              | Section 6.01                           | Type of Plan                                                        |   |
|              | Section 6.02                           | Cumulative Benefits                                                 |   |
|              | Section 6.03                           | No Mitigation                                                       |   |
|              | Section 6.04                           | Enforceability                                                      |   |
|              | Section 6.05                           | Administration                                                      |   |
|              | Section 6.06                           | Consolidations, Mergers, Etc.                                       |   |

 

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|   | Section 6.07 | Successors and Assigns                     |   |
|--------|-------------------|--------------------------------------------|--------|
|   | Section 6.08 | Notices                                    |   |
|   | Section 6.09 | Tax Withholdings                           |   |
|   | Section 6.10 | No Employment Rights Conferred             |   |
|   | Section 6.11 | Entire Plan                                |   |
|   | Section 6.12 | Severability                               |   |
|   | Section 6.13 | Governing Law                              |   |
|   | Section 6.14 | Service of Legal Process                   |   |
|   | Section 6.15 | Condition Precedent to Plan  Effectiveness |   |

 

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**KRONEACQUISITIONKEY EMPLOYEE RETENTION PLAN**

 

WHEREAS, ADCTelecommunications, Inc., a Minnesota corporation (“ADC”), Krone InternationalHolding Inc., a Delaware corporation (“Krone International”), Krone DigitalCommunications Inc., a Delaware corporation (together with Krone International,“Krone”), GenTek Holding Corporation, a Delaware corporation and the soleshareholder of Krone (“Seller”), and GenTek Inc., a Delaware corporation andthe parent entity of Seller (“GenTek”), have made and entered into a sharepurchase agreement (the “Share Purchase Agreement”), dated March 25, 2004,the terms and conditions of which provide for the acquisition of all of theoutstanding shares of Krone by ADC;

 

WHEREAS, GenTek maintainsthe GenTek Key Employee Retention Plan (the “GenTek KERP”), the purpose ofwhich is to provide key employees of Krone and other affiliated companies ofGenTek with competitive compensation, including severance protection,supplemental retirement benefits and other incentives for continued service;

 

WHEREAS, Pursuant to theShare Purchase Agreement, from and after the closing of the transactionscontemplated by the Share Purchase Agreement, ADC has agreed to assume allliabilities, responsibilities and obligations for any severance benefits(i) to which any Contract Employee (as defined below) may become entitledunder the GenTek KERP, and (ii) subject to GenTek’s obligation to bear thefirst $1,000,000 of severance benefits to become due and payable under theterms of the GenTek KERP (if the terminations or resignations of employmentgiving rise to such $1,000,000 occur within the first twelve months after theclosing date), to which any other participant under the GenTek KERP who is anemployee of Krone (and Krone’s subsidiaries) may become entitled under theGenTek KERP;

 

WHEREAS, concurrent withthe signing of the Share Purchase Agreement, six employees of Krone (the“Contract Employees”) entered into employee retention agreements with ADC whichprovide that, from an after the closing of the transactions contemplated by theShare Purchase Agreement, severance benefits available to Contract Employeesunder the GenTek KERP will be maintained by ADC under a comparable severanceplan;

 

WHEREAS, ADC, byresolution of the Compensation Committee of its Board of Directors, hasauthorized the creation of a key employee retention plan which is intended tosatisfy the requirements of the Share Purchase Agreement and the ContractEmployees’ retention agreements; and

 

WHEREAS, This is the keyemployee retention plan so contemplated.

 

RESOLVED, that subject toand contingent upon the occurrence of closing of the transactions contemplatedby the Share Purchase Agreement, ADC does hereby create and establish thisKRONE ACQUISITION KEY EMPLOYEE RETENTION PLAN.

 

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**ARTICLE I**

 

**DEFINITIONSAND INTERPRETATIONS**

 

Section 1.01                                **Definitions**.  Capitalized terms used in this Plan shall have the followingrespective meanings, except as otherwise provided or as the context shallotherwise require:

 

“**ADC**” shall mean ADC Telecommunications,Inc.

 

“**Administrative Committee**” shall mean thecommittee consisting of the Chief Financial Officer of ADC, the General Counselof ADC, the Vice President of Human Resources of ADC and the Chief ExecutiveOfficer of ADC.

 

“**Annual Salary**” shall mean the base salarypaid to a Participant on an annual basis exclusive of any bonus payments oradditional payments under any Benefit Plan.

 

“**Beneficial Owner**” shall have the meaningset forth in Rule 13d-3 under the Securities Exchange Act of 1934.

 

“**Benefit Plan**” shall mean any “employeebenefit plan” (including any employee benefit plan within the meaning ofSection 3(3) of ERISA), program, arrangement or practice maintained,sponsored or provided by ADC or any Employer, including those relating tocompensation, bonuses, profit-sharing, stock option, or other stock relatedrights or other forms of incentive or deferred compensation, vacation benefits,insurance coverage (including any self-insured arrangements) health or medicalbenefits, disability benefits, workers’ compensation, supplemental unemploymentbenefits, severance benefits and post-employment or retirement benefits(including compensation, pension, health, medical or life insurance or otherbenefits).

 

“**Board”** means the Board of Directors of ADC.

 

“**Cause**” means (a) the continued failureby the Participant substantially to perform his or her duties and obligationsto any Employer (other than any such failure resulting from his or herincapacity due to physical or mental illness), including, without limitation,repeated refusal to follow the reasonable directions of his or her employer,knowing violation of the law in the course of performance of the duties ofParticipant’s employment with any Employer, repeated absences from work withouta reasonable excuse, or intoxication with alcohol or illegal drugs while on anyEmployer’s premises during regular business hours; (b) fraud or materialdishonesty against any Employer; (c) a conviction or plea of guilty ornolo contendere to the commission of a felony or a crime involvingmaterial dishonesty or moral turpitude; or (d) willful malfeasance ormisconduct in connection with a Participant’s duties hereunder or any act oromission that is results in demonstrable injury to the financial condition orbusiness reputation of

 

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ADC or itsaffiliates.  Determination of Causeshall be made by the Compensation Committee in its sole discretion.

 

“**Code**” shall mean the Internal Revenue Codeof 1986, as amended.  Reference in thisPlan to any section of the Code shall be deemed to include any amendmentsor successor provisions to such section and any regulations under suchsection.

 

“**Compensation Committee**” shall mean theCompensation Committee of the Board.

 

“**Contract Employee**”  shall have the meaning set forth in thepreamble to this Plan.

 

“**Disability**” shall mean, when used withreference to any Participant, long term disability under the applicable longterm disability plan maintained by ADC or any Employer under which theParticipant is covered.

 

“**Effective Date**” shall mean the later of thedate the Plan is approved by the Compensation Committee or the date of theclosing of the transactions contemplated by the Share Purchase Agreement.

 

“**Employer**” shall mean Krone, ADC or anyother affiliate of ADC to the extent that such entity is the employer of aParticipant under this Plan.

 

“**Enhanced Severance Participant**” shall meaneach Participant who is entitled to enhanced severance benefits pursuant toSection 3.02.

 

“**ERISA**” shall mean the Employee RetirementIncome Security Act of 1974, as amended, and the rules and regulationspromulgated thereunder.

 

“**Exchange Act**” shall mean the SecuritiesExchange Act of 1934, as amended.

 

“**GenTek KERP**” shall have the meaning setforth in the preamble to this Plan.

 

“**Good Reason**” shall mean, when used withreference to any Participant, any of the following actions or failures to act,but in each case only if it occurs while such Participant is employed by anyEmployer and then only if it is not consented to by such Participant inwriting:

 

(i)                                     amaterial adverse change in such Participant’s reporting responsibilities,titles or elected or appointed offices as in effect immediately prior to theeffective date of such change;

 

(ii)                                  amaterial reduction by ADC in such Participant’s base salary and bonusopportunity in effect immediately prior to the effective date of suchreduction, not including any reduction resulting from changes in the

 

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market value ofsecurities or other instruments paid or payable to Participant; or

 

(iii)          any change of more than50 miles in the location of the principal place of employment of suchParticipant immediately prior to the effective date of such change.

 

For purposes of thisdefinition, none of the actions described in clauses (i) and (ii) aboveshall constitute “Good Reason” with respect to any Participant if it was anisolated and inadvertent action not taken in bad faith by ADC and if it isremedied by ADC within 30 days after receipt of written notice thereofgiven by such Participant (or, if the matter is not capable of remedy within 30days, then within a reasonable period of time following such 30 day period, providedthat ADC has commenced such remedy within said 30 day period); provided that“Good Reason” shall cease to exist for any action described in clauses (i)through (iii) above on the 60th day following the later of the occurrence ofsuch action or the Participant’s knowledge thereof, unless such Participant hasgiven ADC written notice thereof prior to such date.

 

“**Krone**” shall have the meaning set forth inthe preamble to this Plan.

 

“**Participants**” shall mean:  (i) those Contract Employees who wereformerly participants in the GenTek KERP and who are eligible to participate inthis Plan as of the Effective Date and (ii) any other employees of ADC or anEmployer who were formerly participants in the GenTek KERP and who are fromtime to time designated by the Administrative Committee as eligibleParticipants pursuant to the terms of the Share Purchase Agreement.

 

“**Person**” shall have the meaning given inSection 3(a)(9) of the Exchange Act, as modified and used inSections 13(d) and 14(d) thereof, except that such term shall not include(i) ADC or any of its subsidiaries, (ii) a trustee or other fiduciaryholding securities under an employee benefit plan of ADC or any of itsaffiliates, (iii) an underwriter temporarily holding securities pursuant toan offering of such securities, or (iv) a corporation owned, directly orindirectly, by substantially all of the stockholders of ADC in substantiallythe same proportions as their ownership of stock of ADC.

 

“**Plan**” shall mean this Krone Acquisition KeyEmployee Retention Plan, as amended, supplemented or modified from time to timein accordance with its terms.

 

“**Sale of the Krone Business Segment**” meansthe sale of all of the outstanding shares of Krone to ADC.

 

“**Severance Participant**” shall mean eachParticipant who is entitled to severance benefits under Section 3.01 andwho is not an Enhanced Severance Participant entitled to severance benefitsunder Section 3.02.

 

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“**Severance Payment**” shall have the meaningset forth in Article III.

 

“**Share Purchase Agreement**” shall have themeaning set forth in the preamble to this Plan.

 

“**Termination Date**” shall mean, with respectto any Participant, the termination date specified in the Termination Noticedelivered by such Participant to ADC in accordance with Section 2.02 orthe actual date of termination of such Participant’s employment by ADC for anyreason other than Cause or Disability, as applicable.

 

“**Termination Notice**” shall mean, asappropriate, written notice from (a) a Participant to ADC purporting toterminate such Participant’s employment for Good Reason in accordance withSection 2.02 or (b) ADC to any Participant purporting to terminatesuch Participant’s employment for Cause or Disability in accordance withSection 2.03.

 

Section 1.02                                **Interpretation**.  In this Plan, unless a clear contrary intention appears,(a) the words “herein,” “hereof’ and “hereunder” refer to this Plan as awhole and not to any particular Article, Section or other subdivision, (b) referenceto any Article or Section, means such Article or Section hereofand (c) the words “including” (and with correlative meaning “include”)means including, without limiting the generality of any description precedingsuch term.  The Article andSection headings herein are for convenience only and shall not affect theconstruction hereof.

 

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**ARTICLE II**

 

**ELIGIBILITYAND BENEFITS**

 

Section 2.01                                **Eligible Employees**.  This Plan is solely for the benefit ofParticipants, and no other employees, personnel, consultants or independentcontractors shall be eligible to participate in this Plan or to receive anyrights or benefits hereunder. Participants shall include:  (i)those Contract Employees who were formerly participants in the GenTek KERP andwho are eligible to participate in this Plan as of the Effective Date and (ii)any other employees of ADC or an Employer who were formerly participants in theGenTek KERP and who are from time to time designated by the Administrative Committeeas eligible Participants pursuant to the terms of the Share Purchase Agreement.

 

Section 2.02                                **Termination Notices from Participants**.  For purposes of this Plan, in order for anyParticipant to terminate his or her employment for Good Reason, such Participantmust give a Termination Notice to ADC, which notice shall be signed by suchParticipant, shall be dated the date it is given to ADC, shall specify theTermination Date and shall state that the termination is for Good Reason andshall set forth in reasonable detail the facts and circumstances claimed toprovide a basis for such Good Reason. Any Termination Notice given by a Participant that does not comply inall material respects with the foregoing requirements as well as the “GoodReason” definition provisions set forth in Section 1.01 shall be invalidand ineffective for purposes of this Plan. If ADC receives from any Participant a Termination Notice that itbelieves is invalid and ineffective as aforesaid, it shall promptly notify suchParticipant of such belief and the reasons therefor.

 

Section 2.03                                **Termination Notices from Company**.  For purposes of this Plan, in order for ADCto terminate any Participant’s employment for Cause, ADC must give aTermination Notice to such Participant, which notice shall be dated the date itis given to such Participant, shall. specify the Termination Date and shall state that the termination is forCause and shall set forth in reasonable detail the particulars thereof.  For purposes of this Plan, in order for ADCto terminate any Participant’s employment for Disability, ADC must give aTermination Notice to such Participant, which notice shall be dated the date itis given to such Participant, shall specify the Termination Date and shallstate that the termination is for Disability and shall set forth in reasonabledetail the particulars thereof.  AnyTermination Notice given by ADC that does not comply, in all material respects,with the foregoing requirements shall be invalid and ineffective for purposesof this Plan.  Any Termination Noticepurported to be given by ADC to any Participant after the death or retirementof such Participant shall be invalid and ineffective.

 

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**ARTICLE III**

 

**SEVERANCEAND RELATED TERMINATION BENEFITS**

 

Section 3.01                                **Termination of Employment**.  In the event that (i) a SeveranceParticipant terminates his or her employment for Good Reason, (ii) anyEmployer terminates a Severance Participant’s employment for any reason otherthan for Cause; or (iii) any Employer or Severance Participant terminatesemployment due to Disability or death, in each case after the Effective Date,then such Severance Participant (or his or her beneficiary) shall be entitledto receive, and ADC shall be obligated to pay to the Severance Participant,within sixty (60) days after such Severance Participant’s Termination Date, alump sum cash payment equal to (a) the Severance Participant’s currentAnnual Salary on the Termination Date multiplied by the severance multiplierapplicable for such Severance Participant as set forth on the applicableschedule to the GenTek KERP (the “Severance Payment”) plus (b) allunused vacation time accrued by such Severance Participant as of theTermination Date under ADC’s vacation policy, plus (c) all accrued butunpaid compensation earned by such Severance Participant as of the TerminationDate.  In addition, for a period ofmonths equal to the Severance Participant’s applicable severance multipliermultiplied by twelve (12), such Severance Participant (or his or herbeneficiary) shall continue to be covered by all life, health care, medical anddental insurance plans and programs (excluding disability) of the applicableEmployer under which he or she was covered on the Termination Date.

 

Section 3.02                                **Termination of Employment Following Sale of KroneBusiness Segment**.  In theevent of the Sale of the Krone Business Segment which occurs prior toNovember 13, 2004, each Enhanced Severance Participant shall be entitledto receive, in the event of a termination of employment during the twelve-monthperiod immediately following such Sale of the Krone Business Segment by(i) the Enhanced Severance Participant for Good Reason or (ii) ADC or anyEmployer other than for Cause (excluding death or Disability), the benefits setforth in Section 3.01, except that in lieu of the Severance Payment, theEnhanced Severance Participant shall be entitled to receive a lump sum cashpayment equal to the sum of the Severance Participant’s current Annual Salaryon the Termination Date plus such Enhanced Severance Participant’s targetannual bonus with respect to the year in which the Termination Date occurs,multiplied by the change of control severance multiplier applicable for suchEnhanced Severance Participant as set forth in the applicable schedule tothe GenTek KERP, provided, however, that on November 13, 2004, an EnhancedSeverance Participant shall cease to be an Enhanced Severance Participant andshall become a Severance Participant whose severance payments and benefits aregoverned exclusively by Section 3.01. Any obligation incurred by ADC or its successor under thisSection 3.02 shall be paid to the Enhanced Severance Participant withinsixty (60) days of the Termination Date.

 

Section 3.03                                **Condition to Receipt of Severance Benefits**.  As a condition to receipt of any payment orbenefits under this Article III, such Participant must enter into aNon-Solicitation, Non-Compete, Non-Disclosure, and Non-Disparagement Agreementwith ADC and its affiliates

 

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and an additional releaseof claims agreement substantially similar to the form attached hereto pursuantto which agreement Participant releases ADC and its successors, assigns,divisions, affiliates, representatives, agents, officers, directors,stockholders, and employees from any claims, demands and/or causes of actionrelating to or arising out of the termination of his or her employment with ADCor any Employer, including, but not limited to any statutory claims under theAge Discrimination in Employment Act of 1967, the Americans with DisabilitiesAct of 1990 and/or the Civil Rights Acts of 1964 and 1991.

 

Section 3.04                                **Gross-Up Payment**.

 

(a)                                  Anythingin this Plan to the contrary notwithstanding, in the event it shall bedetermined that any payment or distribution to or for the benefit of anyEnhanced Severance Participant under this Plan (the “Triggering Payment”) wouldbe subject to the excise tax imposed by Section 4999 of the Code or any interestor penalties with respect to such excise tax (collectively, such excise tax,together with any such interest or penalties, the “Excise Tax”), then suchEnhanced Severance Participant shall be entitled to receive from ADC anadditional payment (the “Gross-Up Payment”) in an amount such that afterpayment by such Enhanced Severance Participant of all taxes (including anyinterest or penalties imposed with respect to such taxes) including any ExciseTax imposed on the Gross-Up Payment, such Enhanced Severance Participantretains an amount of the Gross-Up Payment equal to the Excise Tax imposed uponthe Triggering Payment.  Alldeterminations required to be made under this Section 3.04 with respect toa particular Enhanced Severance Participant shall be made in writing within ten(10) business days of the receipt of notice from the Enhanced SeveranceParticipant that there has been a Triggering Payment (or at such earlier timeas is requested by ADC and the Enhanced Severance Participant) by theindependent accounting firm then retained by ADC in the ordinary course ofbusiness (which firm shall provide detailed supporting calculations to ADC andsuch Participant) and such determinations shall be final and binding on ADC andall Enhanced Severance Participants.  Anyfees incurred as a result of work performed by any independent accounting firmpursuant to this Section 3.04 shall be paid by ADC.

 

(b)                                 Forpurposes of determining the amount of the Gross-Up Payment, the EnhancedSeverance Participant shall be deemed to pay: (i) Federal income taxes at the highest applicable marginal rate ofFederal income taxation for the calendar year in which the Gross-Up Payment isto be made, and (ii) any applicable state and local income taxes at thehighest applicable marginal rate of taxation for the calendar year in which theGross-Up Payment is to be made, net of the maximum reduction in Federal incomestaxes which could be obtained from the deduction of such state or local taxesif paid in such year.  In the event thatthe Excise Tax is subsequently determined by the independent accounting firm orpursuant to any proceeding or negotiations with the Internal Revenue Service tobe less than the

 

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amount taken into accounthereunder in calculating the Gross-Up Payment made, the Enhanced SeveranceParticipant shall repay to ADC, at the time that the amount of such reductionin the Excise Tax is finally determined, the portion of such prior Gross-UpPayment that would not have been paid if such Excise Tax had been applied ininitially calculating such Gross-Up Payment, plus interest on the amount ofsuch repayment at the rate provided in Section 1274(b)(2)(B) of theCode.  Notwithstanding the foregoing, inthe event any portion of the Gross-Up Payment to be refunded to ADC has beenpaid to any Federal, state or local tax authority, repayment thereof shall notbe required until actual refund or credit of such portion has been made to theEnhanced Severance Participant, and interest payable to ADC shall not exceedinterest received or credited to the Enhanced Severance Participant by such taxauthority for the period it held such portion. The Enhanced Severance Participant and ADC shall mutually agree upon thecourse of action to be pursued (and the method of allocating the expensesthereof) if the Enhanced Severance Participant’s good faith claim for refund orcredit is denied.  In the event that theExcise Tax is later determined by the independent accounting firm or pursuantto any proceeding or negotiations with the Internal Revenue Service to exceedthe amount taken into account hereunder at the time the Gross-Up Payment ismade (including, but not limited to, by reason of any payment the existence oramount of which cannot be determined at the time of the Gross-Up Payment), ADCshall make an additional Gross-Up Payment in respect of such excess (plus anyinterest or penalty payable with respect to such excess) at the time that theamount of such excess if finally determined. The Gross-Up Payment (or portion thereof) provided for in thisSection 3.04 shall be paid to the Enhanced Severance Participant (or tothe applicable taxing authority) not later than ten (10) business daysfollowing the payment of the Triggering Payments; provided, however, that ifthe amount of such Gross-Up Payment (or portion thereof) cannot be finallydetermined on or before the date on which payment is due, ADC shall pay to theEnhanced Severance Participant by such date an amount estimated in good faithby the independent accounting firm to be the minimum amount of such Gross-UpPayment and shall pay the remainder of such Gross-Up Payment (together withinterest at the rate provided in Section 1274(b)(2)(B) of the Code) assoon as the amount thereof can be determined, but in no event later than 45calendar days after payment of the related Triggering Payment.  In the event that the amount of theestimated Gross-Up Payment exceeds the amount subsequently determined to havebeen due, such excess shall be refunded to ADC by the Enhanced SeveranceParticipant on the fifth business day after written demand by ADC for payment(together with interest at the rate provided in Section 1274(b)(2)(B) ofthe Code).

 

Section 3.05                                **Limitation of Benefits**.

 

(a)                                  Anythingin this Plan to the contrary notwithstanding, ADC’s obligation to continuehealth and welfare benefits for any Severance Participant or Enhanced

 

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Severance Participantshall cease if and when such Participant becomes employed by a third party thatprovides such Participant with health and welfare benefits.

 

(b)                                 Anythingin this Plan to the contrary notwithstanding, the amounts payable to anyParticipant under Article III of this Plan shall be reduced by the aggregateamount of all separation, severance or termination payments due to suchParticipant under (i) any Benefit Plan (other than this Plan),(ii) any agreement (except with respect to a severance provision therein)between such Participant and any Employer, or (ii) any applicable law,statute, rule, regulation, order or decree (or other pronouncement having theeffect of law) of any nation or governmental authority; provided, however, thata Participant shall be entitled to decline acceptance of any severance paymentpursuant to Sections 3.01 or 3.02 and choose in lieu thereof any severancebenefits contained in an individual agreement between the Participant and anyEmployer.

 

Section 3.06                                **Plan Unfunded; Participant’s Rights Unsecured**.  ADC shall not be required to establish anyspecial or separate fund or make any other segregation of funds or assets toassure the payment of any benefit hereunder. The right of any Participant to receive the benefits provided for hereinshall be an unsecured claim against the general assets of ADC.

 

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**ARTICLE IV**

 

**DISPUTERESOLUTION**

 

Section 4.01                                **Negotiation**.  In case a claim, dispute or controversy shall arise between anyParticipant (or any person claiming by, through or under any Participant) andADC or any Employer (including the Compensation Committee) relating to orarising out of this Plan, either disputant shall give written notice to theother disputant (“Dispute Notice”) that it wishes to resolve such claim,dispute or controversy by negotiations, in which event the disputants shallattempt in good faith to negotiate a resolution of such claim, dispute orcontroversy.  If the claim, dispute orcontroversy is not so resolved within 30 days after the effective date of theDispute Notice (as described in Section 6.08), subject toSection 4.03, either disputant may initiate arbitration of the claim,dispute or controversy as provided in Section 4.02.  All negotiations pursuant to thisSection 4.01 shall be held at ADC’s principal offices in Eden Prairie,Minnesota (or such other place as the disputants shall mutually agree) andshall be treated as compromise and settlement negotiations for the purposes ofthe federal and state rules of evidence and procedure.

 

Section 4.02                                **Arbitration**.  Subject to Section 4.03, any claim, dispute or controversyarising out of or relating to this Plan which has not been resolved bynegotiations in accordance with Section 4.01 within 30 days of the effectivedate of the Dispute Notice (as described in Section 6.08) shall, upon thewritten request of either disputant, be finally settled by arbitrationconducted expeditiously in accordance with the commercial arbitration rules ofthe American Arbitration Association regarding resolution of employment relateddisputes.  The arbitrator may, withoutlimitation, award injunctive relief, but shall not be empowered to awarddamages in excess of compensatory damages and each disputant shall be deemed tohave irrevocably waived any damages in excess of compensatory damages, such aspunitive damages.  The arbitrator’sdecision shall be final and legally binding on the disputants and theirsuccessors and assigns, and judgment by the arbitrator may be entered in anycourt having jurisdiction.  Each partyshall pay its own fees, disbursements, and costs relating to or arising out ofany arbitration.  All arbitrationconferences and hearings shall be held within a thirty (30) mile radius ofEden Prairie, Minnesota.

 

Section 4.03                                **Exclusivity, etc**.**** The dispute resolutionprocedures set forth in Sections 4.01 and 4.02 shall not apply to any matterwhich, by the express provisions of this Plan, is to be finally determined bythe Compensation Committee or by an accounting firm.  No legal action may be brought with respect to this Plan exceptfor the purpose of specifically enforcing the provisions of thisArticle IV or for the purpose of enforcing any arbitration award madepursuant to Section 4.02.

 

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**ARTICLE V**

 

**AMENDMENTAND TERMINATION**

 

The CompensationCommittee may amend or terminate the Plan at any time; provided however that(i) no such amendment may adversely affect any rights of the Participantswho were Plan Participants prior to the date of such amendment (and may onlyadversely affect the rights of any Plan Participants who become PlanParticipants on or following the date of such amendment or termination), and(ii) with respect to ADC’s obligations to pay severance pursuant toSections 3.01 and 3.02, no termination of the Plan may be made prior toNovember 13, 2008.  Notwithstandingthe foregoing, the Plan shall terminate when all of the obligations toParticipants hereunder have been satisfied in full.

 

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**ARTICLE VI**

 

**MISCELLANEOUSPROVISIONS**

 

Section 6.01                                **Type of Plan**.  The Plan is a severance pay welfare benefit plan and not apension benefit plan.  The Plan isestablished with the understanding that it is an unfounded welfare plan maintainedprimarily for the benefit of a select group of management or highly compensatedindividuals within the meaning of ERISA.

 

Section 6.02                                **Cumulative Benefits**.  Except as to the extent provided inSection 3.05, the rights and benefits provided to any Participant underthis Plan are cumulative of, and are in addition to, all of the other rightsand benefits provided to such Participant under any Benefit Plan or anyagreement between such Participant and any Employer.

 

Section 6.03                                **No Mitigation**.  No Participant shall be required to mitigate the amount of anypayment provided for in this Plan by seeking or accepting other employmentfollowing a termination of his or her employment with ADC or otherwise.  Except as otherwise provided in Section 3.05,the amount of any payment provided for in this Plan shall not be reduced by anycompensation or benefit earned by a Participant as the result of employment byanother employer or by retirement benefits. ADC’s obligations to make payments to any Participant required underthis Plan shall not be affected by any set off, counterclaim, recoupment,defense or other claim, right or action that ADC may have against suchParticipant.

 

Section 6.04                                **Enforceability**.  The provisions of this Plan (i) are for the benefit of, andmay be enforced directly by, each Participant and (ii) constitute acontinuing offer to all present and future Participants, until its terminationin accordance with Article V.  ADC,by its adoption of this Plan, acknowledges and -agrees that each present andfuture Participant (a) has relied upon and will continue to rely upon theprovisions of this Plan in becoming, and serving as, an employee of ADC or anyEmployer, (b) shall not be prejudiced in his or her right to enforcedirectly the provisions of this Plan in accordance with its terms by any act orfailure to act on the part of ADC.  Thefailure of Participants or any applicable Employer to insist upon strictadherence to any term of the Plan on any occasion shall not be considered awaiver of such party’s rights or deprive such party of the right thereafter toinsist upon strict adherence to that term or any other term of the Plan.

 

Section 6.05                                **Administration**.

 

(a)                                  Exceptwith respect to the Administrative Committee’s authority to designate eligibleParticipants in accordance with Section 2.01, the Compensation Committeeshall have exclusive authority to make determinations with respect to theadministration of this Plan, to construe and interpret its provisions and totake all other actions deemed necessary or advisable for the properadministration of this Plan, but such authority shall be subject to theprovisions of this Plan.  No

 

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discretionary action bythe shall amend or supersede the express provisions of this Plan.

 

(b)                                 Themembers of the Administrative Committee and the Compensation Committee shallreceive no additional compensation for their services relating to thisPlan.  Any expenses properly incurred bythe Administrative Committee and the Compensation Committee incident to thisPlan shall be paid by ADC.

 

(c)                                  ADCshall indemnify and hold harmless each member of the Administrative Committeeand the Compensation Committee against and all expenses and liabilities arisingout of his or her administrative functions, including any expenses andliabilities that are caused by or result from an act or omission constitutingthe negligence of such member in the performance of such functions orresponsibilities, but excluding expenses and liabilities that are caused by orresult from such member’s own gross negligence or willful cause.  Expenses against which such member shall beindemnified hereunder shall include, without limitation, the amounts of anysettlement or judgment, costs, counsel fees, and related charges reasonablyincurred in connection with a claim asserted or a proceeding brought orsettlement thereof.

 

Section 6.06                                **Consolidations, Mergers, Etc**.  In the event of a merger, consolidation orother transaction, nothing herein shall relieve ADC from any of the obligationsset forth in the Plan; provided, however, that nothing in thisSection 6.06 shall prevent an acquirer of or successor to ADC fromassuming the obligations, or any portion thereof, of ADC hereunder pursuant tothe terms of the Plan provided that such acquirer or successor providesadequate assurances of its ability to meet this obligation.  In the event that an acquirer of orsuccessor to ADC agrees to perform ADC’s obligations, or any portion thereof, hereunder,ADC shall require any person, firm or entity which becomes its successor toexpressly assume and agree to perform such obligations in writing, in the samemanner and to the same extent that ADC would be required to perform hereunderif no such succession had taken place.

 

Section 6.07                                **Successors and Assigns**.  This Plan shall be binding upon and inure tothe benefit of ADC and its successors and assigns.  This Plan and all rights of each Participant shall inure to thebenefit of and be enforceable by such Participant and his or her personal orlegal representatives, executors, administrators, heirs and permittedassigns.  If any Participant should diewhile any amounts are due and payable to such Participant hereunder, all suchamounts, unless otherwise provided herein, shall be paid in accordance with theterms of this Plan to such Participant’s devisees, legatees or other designeesor, if there be no such devisees, legatees or other designees, to suchParticipant’s estate.  No payments,benefits or rights arising under this Plan may be assigned or pledged by anyParticipant, except under the laws of descent and distribution.

 

Section 6.08                                **Notices**. All notices and other communications provided for in this Plan shall bein writing and shall be sent, delivered or mailed, addressed as follows:  (a) if to ADC, at ADC’s

 

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principal office addressor such other address as ADC may have designated by written notice to allParticipants for purposes hereof, directed to the attention of the Chief OperatingOfficer, and (b) if to any Participant, at his or her residence address onthe records of ADC or to such other address as he or she may have designated toADC in writing for purposes hereof. Each such notice or other communication shall be deemed to have beenduly given or mailed by United States certified or registered mail, returnreceipt requested, postage prepaid, except that any change of notice addressshall be effective only upon receipt.

 

Section 6.09                                **Tax Withholdings**.  ADC shall have the right to deduct from any payment hereunder alltaxes (federal, state or other) which it is required to be withhold therefrom.

 

Section 6.10                                **No Employment Rights Conferred**.  This Plan shall not be deemed to create acontract of employment between any Participant and ADC, any Employer or anyother affiliate of ADC.  Nothingcontained in this Plan shall (i) confer upon any Participant any rightwith respect to continuation of employment with ADC, any Employer or any otheraffiliate of ADC or (ii) subject to the rights and benefits of anyParticipant hereunder, interfere in any way with the right of ADC or anyEmployer to terminate such Participant’s employment at any time.

 

Section 6.11                                **Entire Plan**.  Except as set forth in this Section 6.11, this Plan containsthe entire understanding of the Participants, ADC and any Employer with respectto the severance arrangements maintained on behalf of the Participants by ADCand any Employer.  There are norestrictions, agreements, promises, warranties, covenants or undertakingsbetween the Participants and ADC or any Employer with respect to the subjectmatter herein other than those expressly set forth herein.

 

Section 6.12                                **Severability**.  If any provision of the Plan is, becomes or is deemed to beinvalid, illegal or unenforceable in any respect, the validity, legality andenforceability of the remaining provisions of this Plan shall not be affectedthereby.

 

Section 6.13                                **Governing Law**.  This Plan has been executed and delivered in the State ofMinnesota and has been drawn in conformity to the laws of that State and shall,except to the extent that U.S. federal law is controlling, be construed andenforced in accordance with the domestic laws of the State of Minnesota withoutgiving effect to any choice or conflict of law provision or rule (whether ofthe State of Minnesota or any other jurisdiction) that would cause theapplication of the laws of any jurisdiction other than the State of Minnesota.

 

Section 6.14                                **Service of Legal Process**.  The corporate secretary of ADC Telecommunications,Inc. is designated as agent for service of legal process against the Plan.  Also, service of legal process may be madeupon ADC Telecommunications, Inc. as plan administrator.

 

Section 6.15                                **Condition Precedent to Plan Effectiveness**.  The effectiveness of the Plan and ADC’sobligations thereunder are contingent on the occurrence of closing of thetransactions contemplated by the Share Purchase Agreement.  In the event that such closing does notoccur,

 

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the Plan shall be nulland void, and no party shall be entitled to enforce any rights against ADCthereunder.

 

IN WITNESS WHEREOF, andas conclusive evidence of the adoption of this Plan by the CompensationCommittee, ADC has caused this Plan to be duly executed in its name and behalfby its proper officer thereunto duly authorized as of the Effective Date.

 

 
|   | ADC Telecommunications,  Inc.. |
|--------|--------------------------------|
|   |                           |
|   |                           |
|   | By:                            | /s/ Laura N. Owen |
|   |                           |
|   | Printed Name:                  | Laura N. Owen |
|   |                           |
|   | Title:                         | Vice President, Human  Resources |
|        |                                |  |  |  |

 

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**SEVERANCEAGREEMENT**

 

**ANDGENERAL RELEASE**

 

This Severance Agreementand General Release (“Agreement”) is entered intoby                              (“Employee”),ADC Telecommunications, Inc. (“ADC”), and GenTek Inc. (“GenTek”) (collectively,the “Parties”).

 

**WHEREAS**,Employee is a Participant in the GenTek Inc. Key Employee Retention Plan andhas entered into a GenTek, Inc. Retention Plan Participate Agreementdated                        ;and

 

**WHEREAS**,a triggering event has occurred under the KERP and Employee’s employment withADC is being terminated; and

 

**WHEREAS**,the Employee is entitled to receive certain severance benefits under the termsof a Key Employee Retention Plan (the “KERP”) in exchange for Employee’s fullrelease of any claims that the Employee may have against ADC and GenTek, and inexchange for the other covenants and agreements contained herein;

 

**NOW,THEREFORE**, in consideration of the promises and mutualcovenants contained herein, and for other good and valuable consideration, thereceipt and sufficiency of which are expressly acknowledged, the Parties agreeand promise as follows:

 

1.                                                                                       **EMPLOYEE’S SEPARATION**.  Pursuant to this Agreement, Employee’semployment shall be terminated effective asof                            2004(the “Separation Date”).

 

2.                                                                                       **SEVERANCE CONSIDERATION**.

 

a.                                       Pursuantto the terms and conditions of the KERP and in accordance with the Award Letterto the Employeedated                     settingforth the Employee’s entitlements under the KERP, within sixty (60) days afterthe Separation Date, and provided Employee has not rescinded his acceptance ofthis Agreement as permitted under Section 13 below, Employee shall beentitled to be paid by ADC (i) the severance sum of$                      ,less applicable withholdings, (ii)$        , which represents payment forall unused vacation time accrued by Employee as of the Separation Date, lessapplicable withholdings.  In addition,and as part of Employee’s rights under the federal COBRA legislation, Employeeshall continue to be permitted to participate at employee rates in allapplicable continued life, health care, medical, and dental benefits underwhich the Employee is covered as of the date hereof (the “Benefits”) for aperiod continuing until the earlier of Employee becoming covered under adifferent employer’s plan orthe                 monthfollowing Employee’s Separation Date. The consideration identified herein shall be collectively referred to asthe “Severance Package”;

 

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b.                                      Employeeacknowledges and agrees that the Severance Package constitutes considerationbeyond that which, but for the mutual covenants set forth in this Agreement,ADC would not be obligated to provide, and Employee otherwise would not beentitled to receive;

 

c.                                       Employeeacknowledges that Employee remains bound by the terms of the Non-Solicitation,Non-Compete, Non-disclosure and Non-Disparagement Agreement previously signedby Employee;

 

d.                                      Employeeacknowledges that except as otherwise provided in this Agreement, Employee’sBenefits cease on Employee’s Separation Date and except for (i) the SeverancePackage (which includes the Benefits set forth in Section 2(a)), (ii)Employee’s salary through the Separation Date and [***Following language is optional,depending on circumstances***: (iii) the payment of Employee’s 2004KRONE Management Incentive Plan bonus in accordance with the terms agreedbetween ADC and GenTek, to be paid as soon as reasonably practicable.]  Employee is not entitled to receive anyother compensation or benefits of any sort, including, without limitation,salary, vacation, bonuses, short-term or long-term disability benefits, healthcare continuation coverage (except as provided under federal law), from ADC orGenTek or their respective affiliates, or any of their respective officers,directors, employees, agents, insurance companies, attorneys, subsidiaries,successors or assigns; and

 

e.                                       Employeerepresents that Employee has not filed, initiated, or caused to be filed orinitiated, any legal action covering any claim released in this Agreement andhereby agrees and promises that Employee will never file, initiate or cause tobe filed or initiated, at any time subsequent to the execution of theAgreement, any claim, suit, complaint, action, or cause of action, in any stateor federal court based in whole or in part on the matters herein released,except to the extent such waiver is precluded by law.  Employee further agrees not to seek to share or participate inany recovery arising out of, based upon, or relating to matters releasedhereunder, and agrees not to voluntarily participate, assist or cooperate inany suit, action, or proceeding against or regarding the Released Parties, orany of them, unless compelled by law.

 

3.                                       **GENERAL RELEASE OF CLAIMS**. Inconsideration of the severance and benefits referred to herein, Employee herebyforever releases and discharges ADC and GenTek, and their respectiveaffiliates, and their respective past and present officers, directors,shareholders, partners, members, managers, attorneys, representatives, agentsand employees, and each of their respective predecessors, successors andassigns (collectively, the “Released Parties”), from any and all claims,charges, complaints, liens, demands, causes of action, obligations, damages andliabilities, **KNOWN OR UNKNOWN, SUSPECTEDOR UNSUSPECTED**, that Employee had, now has, or may hereafterclaim to have against the Released Parties from the beginning of time to thedate Employee signs this Agreement. This release specifically extends to,without limitation, claims or causes of action for sexual harassment, wrongfultermination, impairment of ability to compete in the open labor market, breachof an express or implied contract, breach of the covenant of good faith andfair dealing, breach of fiduciary duty, fraud, misrepresentation, defamation,slander, infliction of emotional distress, discrimination, harassment,disability, loss of future earnings, and claims under the United States Constitution,and applicable state and federal

 

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fair employment laws,federal equal employment opportunity laws, and federal and state labor statutesand regulations, including, but not limited to, Title VII of the Civil RightsAct of 1964, as amended, the Fair Labor Standards Act, as amended, the NationalLabor Relations Act, as amended, the Labor-Management Relations Act, asamended, the Worker Retraining and Notification Act of 1988, as amended, theAmericans With Disabilities Act of 1990, as amended, the Rehabilitation Act of1973, as amended, the Employee Retirement Income Security Act of 1974, asamended and the Age Discrimination in Employment Act of 1967, as amended.  Notwithstanding the foregoing, the partiesexpressly agree that Employee does not release any claim relating to theenforcement of this Agreement or the breach hereof.

 

Employee understands andagrees, except as provided herein, that this Agreement is intended to includeall claims, if any, which Employee may have and which Employee does not nowknow or suspect to exist in Employee’s favor against the Released Parties, andthis Agreement extinguishes those claims.

 

4.                                       **OWNERSHIP OF CLAIMS**. Employeerepresents and agrees that neither Employee nor anyone acting on Employee’sbehalf has assigned or transferred, or attempted to assign or transfer, to anyperson or entity, any of the claims Employee is releasing in this Agreement.

 

5.                                       **DISCOVERY OF DIFFERENT OR ADDITIONAL FACTS OR CHANGEIN CIRCUMSTANCES**. Employee acknowledges that Employee mighthereafter discover facts different from, or in addition to, those Employee nowknows or believes to be true with respect to a claim or claims released herein,and Employee expressly agrees to assume the risk of possible discovery ofadditional or different facts, and agrees that this Agreement shall be andremain effective, in all respects, regardless of such additional or differentdiscovered facts.

 

6.                                       **NON-ADMISSION OF LIABILITY**. Nothing inthis Agreement shall be construed as an admission of liability by Employee orthe Released Parties; rather, Employee and the Released Parties are resolvingall matters arising out of their respective employer-employee relationshipswith Employee and all other relationships between Employee and the ReleasedParties, as to each of which each of the Released Parties and Employee deniesany liability.

 

7.                                       **INDEMNIFICATION**.  ADCand Employee acknowledge that nothing in this Agreement shall be construed as awaiver of any rights Employee has to seek indemnification pursuant to Minn.Stat. §302A.521 in relation to work performed by Employee for ADC during theperiod specified in the Retention Agreement. GenTek and Employee acknowledge that nothing in this Agreement shallimpair any rights Employee may have to indemnification pursuant to GenTek’scertificate of incorporation or bylaws or any insurance policy maintained byGenTek that otherwise covers Employee in relation to work performed by Employeefor GenTek.

 

8.                                       **BINDING EFFECT**. This Agreement shall bebinding upon the Parties and their respective heirs, administrators,representatives, executors, successors and assigns,

 

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and shall inure to thebenefit of the Parties and their respective heirs, administrators,representatives, executors, successors and assigns.

 

9.                                       **SEVERABILITY**. While the provisionscontained in this Agreement are considered by the Parties to be reasonable inall circumstances, it is recognized that provisions of the nature in questionmay fail for technical reasons and, accordingly, it is hereby agreed anddeclared that if any one or more of such provisions shall, either by itself orthemselves or taken with others, be adjudged to be invalid as exceeding what isreasonable in all circumstances for the protection of the interests of ADC andGenTek, but would be valid if any particular restrictions or provisions weredeleted or restricted or limited in a particular manner, then the saidprovisions shall apply with any such deletions, restrictions, limitations,reductions, curtailments, or modifications as may be necessary to make themvalid and effective.

 

10.                                 **ENTIRE AGREEMENT; MODIFICATION**. ThisAgreement, the Retention Agreement and Participation Agreement constitute theentire understanding among the Parties and may not be modified without theexpress written consent of both Parties. This Agreement supersedes all priorwritten and/or oral and all contemporaneous oral agreements, understandings andnegotiations regarding its subject matter.

 

11.                                 **DISPUTE RESOLUTION**. Each Party to thisAgreement agrees that any dispute arising under or out of the matters containedherein shall be resolved in accordance with Article VI of the KERP.

 

12.                                 **GOVERNING LAW**. This Agreement shall begoverned by and construed and enforced pursuant to the laws of the State ofMinnesota applicable to contracts made and entirely to be performed therein.

 

13.                                 **RIGHTS TO RESCIND**.  Employee acknowledges that Employee has 21days to consider signing this Agreement. Once executed and delivered by Employee, this Agreement shall becomeeffective even if the 21-day period has not expired, subject to validrescission by Employee.  Employee mayvalidly rescind acceptance of this Agreement to the extent it relates to waiverand release of claims under the Age Discrimination in Employment Act (“ADEA”)and the Minnesota Human Rights Act (“MHRA”) by providing written notice ofrescission within 15 days of signing this Agreement.  ***To beeffective, such rescission shall be******inwriting, delivered by registered mail to Laura Owen, Vice President, HumanResources, ADC Telecommunications, Inc., P.O. Box 1101, Minneapolis, MN 55440.***

 

If EMPLOYEE exercisessuch right to rescind this release of claims under the ADEA and/or MHRA, thenADC may at its option either void and nullify this Agreement in its entirety,or keep it in effect in all respects other than as to Employee’s release ofclaims that Employee has rescinded.  IfADC chooses to void and nullify this Agreement, neither EMPLOYEE nor ADC shallhave any rights or obligations under the Agreement, but Employee’s employmentwith ADC shall, nevertheless, be terminated as of the Separation Date.

 

14.**                                 VOLUNTARYAGREEMENT; NO INDUCEMENTS**.  EachParty to this Agreement acknowledges and represents that Employee or it (a) hasfully and carefully read

 

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this Agreement prior tosigning it, (b) has been, or has had the opportunity to be, advised byindependent legal counsel of his or its own choice at his or its own cost as tothe legal effect and meaning of each of the terms and conditions of thisAgreement, and (c) is entering into this Agreement freely and voluntarily andnot in reliance on any promises or representations other than as set forth inthis Agreement.

 

**PLEASEREAD CAREFULLY. BY SIGNING THIS SEVERANCE RELEASE YOU ARE WAIVING ALL KNOWN ANDUNKNOWN CLAIMS AGAINST ADC AND THE RELEASED PARTIES.**

 

**I HAVEREAD THE FOREGOING AGREEMENT AND I ACCEPT AND AGREE TO ITS PROVISIONS VOLUNTARILYWITH FULL UNDERSTANDING OF ITS CONSEQUENCES.**

 

**INWITNESS WHEREOF**, the Parties have signed this Agreement as ofthe date written below.

 

 
| Dated: |                            |   |   |   |
|--------|---------------------------------|--------|--------|--------|
|   | Employee                        |
|   |                            |
|   |                            |
|   | ADC Telecommunications,  Inc.   |
|   |                            |
| Dated: |                            |   |   |   |
|   | Laura Owen                      |
|   | Vice President, Human Resources |
|   |                            |
|   |                            |
|   | GenTek Inc.                     |
|   |                            |
| Dated: |                            |   |   |   |
|   | By:                             |
|   | Its:                            |

 

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