**Exhibit10-e**

 

**EMPLOYMENT AGREEMENT**

 

This EmploymentAgreement (“Agreement”) is made and entered as of August 13, 2003 (the“Commencement Date”), between ADC Telecommunications, Inc., a Minnesotacorporation (the “Company”), and Robert E. Switz (the “Executive”), a residentof Minnesota.

 

**RECITALS**

 

**WHEREAS**,the Company wishes to employ the Executive as the Company’s President and ChiefExecutive Officer and the Executive desires to accept and serve as theCompany’s President and Chief Executive Officer;

 

**WHEREAS,**the Executive understands that such employment is expressly conditioned onexecution of this Agreement; and

 

**WHEREAS**,the Company desires to employ the Executive as President and Chief ExecutiveOfficer, and the Executive desires to be employed by the Company in thatcapacity pursuant to the terms and conditions of this Agreement.

 

**AGREEMENT**

 

**NOW,THEREFORE**, in consideration of the Executive’s employment asthe Company’s President and Chief Executive Officer and the foregoing premises,the mutual covenants set forth below, and other good and valuableconsideration, the receipt and adequacy of which are hereby acknowledged, theCompany and the Executive agree as follows:

 

**ARTICLEI:****          EMPLOYMENT,TERM AND DUTIES**

 

1.1                               **Employment**.  The Company hereby employs the Executive as President and ChiefExecutive Officer, and the Executive accepts such employment and agrees toperform services for the Company, for the period and upon the other terms andconditions set forth in this Agreement.

 

1.2                                 **Term**. Unless terminated at an earlier date in accordance with Article III ofthis Agreement, the term of this Agreement (“Term”) shall be for a period ofthree (3) years, commencing on the Commencement Date, and shall extend throughAugust 13, 2006.** **Thereafter, the Term shall be automatically extendedfor successive one-year periods unless either party objects to such extensionby written notice to the other party at least sixty (60) days prior to theexpiration of the initial Term or any extension of the Term.  If the Company does not renew this Agreementand thereafter terminates the Executive’s employment with the Company as itsChief Executive Officer, or the Executive is removed as Chief Executive of theCompany after the Term and thereafter resigns, in each case, for reasons thatwould not constitute “Cause” as defined in Section 3.1.2, then notwithstandingtermination of this Agreement, the Executive shall be entitled to the benefitsin Section 3.2.3, subject to the conditions set forth therein.

 

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1.3**                                 Positionand Duties.**

 

1.3.1                        **Service with the Company.**  The Executive agrees to serve as theCompany’s President and Chief Executive Officer and to perform such duties (a)as are set forth for that position in the By-laws of the Company; (b) as theCompany’s Board of Directors (the “Board”) shall assign to the Executive fromtime to time; and (c) that the Executive undertakes or accepts consistent withhis position as President and Chief Executive Officer.  The Executive acknowledges and agrees that,from time to time, he will be required to perform duties with respect to one ormore of the Company’s subsidiary or affiliate companies (each an “Affiliate”),and that he will not be entitled to any additional compensation for performingthose duties.

 

The Executive also agreesto serve, for any period for which the Executive is elected, as a member of theBoard or as a director or officer of any Affiliate; *provided, however*, that the Executive shall not be entitledto any additional compensation for serving in any of such capacities.

 

Upon termination ofEmployee’s employment, for whatever reason, Employee agrees to resignimmediately from the Board and from all Affiliate boards of directors on whichhe is then currently serving.

 

1.3.2                        **Performance of Duties.**  During the Term, the Executive agrees toserve the Company faithfully and to the best of the Executive’s ability and todevote the Executive’s full business time, attention and efforts to thebusiness and affairs of the Company (exclusive of any period of vacation, sick,disability, or other leave to which the Executive is entitled).

 

The Executive herebyconfirms that, during the Term, the Executive will not render or performservices for any other corporation, firm, entity or person that areinconsistent with the provisions of this Agreement, whether or not suchactivity is pursued for gain, profit, or other pecuniary advantage.

 

The rest of this Section1.3.2 notwithstanding, the Executive may (a) serve on the boards of profit ornon-profit corporations (the Executive shall obtain approval to serve on such aboard in accordance with all of the Company’s policies, including, withoutlimitation, the Company’s Policy regarding Conflicts of Interest); (b) deliverlectures or fulfill speaking engagements; and (c) manage personal investments,so long as the activities referred to in clauses (a) through (c) above do notmaterially interfere with the performance of the Executive’s responsibilitiesunder this Agreement.  Notwithstandingthe terms of clause (a) of the preceding sentence, the Executive agrees toresign from any and all boards of profit or non-profit corporations, as andwhen requested to do so by the Board at any time during the Term if, in itsgood faith judgment, the Board

 

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determines that suchservice (or continued service) by the Executive is not in the best interests ofthe Company.

 

The Executive willperform all of the Executive’s responsibilities in compliance with allapplicable laws and with all of the applicable policies generally in effect foremployees of the Company or any applicable policies of the Company Affiliatefor which the Executive performs services, including without limitation, theCompany’s Global Business Code of Conduct and related policies, including theCompany’s Policy on Trading in the Company’s Securities, as the same may beamended from time to time.

 

1.3.3                        **Relocation. **The Executive’s primary office shall be located in thegreater Twin Cities metropolitan area, unless the Company’s headquarters isrelocated. If the Company’s headquarters is relocated, the Executive agrees torelocate his primary office location to the Company’s new headquarters, and theCompany agrees to reimburse the Executive for his reasonable expenses in connectionwith any move he is required to make.

 

1.4                                 **Transitional Services**.  The Executive agrees to continue to serve asthe Company’s Chief Financial Officer, performing the duties of such office ashe currently performs them, between the Commencement Date and the date that theBoard elects a new Chief Financial Officer (or such earlier date, if any, asthe Board determines), without receiving any compensation or benefits inaddition to those set forth in this Agreement.

 

**ARTICLE II.  COMPENSATION, BENEFITS AND EXPENSES**

 

2.1                                 **Base Salary**.  As his initial base compensation for all services he rendersunder this Agreement, the Executive shall receive an annualized base salary(“Annual Base Salary”) of Five Hundred Fifty Thousand Dollars ($550,000.00).  The Annual Base Salary shall be paid inaccordance with the Company’s normal payroll procedures and policies, as suchprocedures and policies may be modified from time to time.  The Annual Base Salary shall be reviewed andadjusted in the sole discretion of the Board’s Compensation Committee (the“Committee”) according to a schedule and in a manner consistent with theCompany’s practices for salary adjustment, which practices may be revised fromtime to time.

 

2.2                                 **Incentive Compensation. **During the Term (and while the Company’sExecutive Management Incentive Plan (the “EMIP”) remains in effect), theCommittee shall continue to designate the Executive as a participant in theEMIP, subject to and in accordance with the terms and conditions thereof,including any goals the Committee establishes to govern the EMIP for any fiscalyear.  For each fiscal year of the EMIPafter fiscal year 2003 during the Term during which the targeted objectiveperformance criteria established by the Committee under the EMIP for suchfiscal year are satisfied by the Executive, the Committee agrees that it shallnot exercise its negative discretion under the EMIP to cause the Executive’sincentive compensation payable thereunder to be less than the “TargetIncentive” (as defined below) applicable to that fiscal year,

 

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so long as the targeted performance criteria established under theCompany’s annual management incentive plan applicable to senior executives notparticipating in the EMIP for such fiscal year have otherwise beensatisfied.  For purposes ofclarification and not in limitation of the preceding sentence, if the targetedperformance criteria established under the Company’s annual management incentiveplan applicable to senior executives not participating in the EMIP for suchfiscal year have not otherwise been satisfied, then the Executive may have theopportunity to earn greater than 100% or may be paid less than 100% of hisAnnual Base Salary for such fiscal year, at the discretion of the Committee,and upon its consideration of relevant performance criteria.

 

For purposes ofthis Agreement, the term “Target Incentive” shall mean an amount equal to 100%of the Annual Base Salary actually paid to the Executive for a given fiscalyear.

 

2.3                                 **Benefit Plans: **During the Term, the Executive shall be entitled toparticipate in the employee benefits offered generally by the Company to itsexecutive employees, to the extent that the Executive’s position, tenure,salary, health, and other qualifications make the Executive eligible toparticipate.  The Executive’sparticipation in such benefits shall be subject to the terms of the applicableplans, as the same may be amended from time to time.  The Company does not guarantee the adoption or continuance of anyparticular employee benefit or benefit plan during the Term, and nothing inthis Agreement is intended to, or shall in any way restrict the right of theCompany, to amend, modify or terminate any of its benefits or benefit plansduring the Term.

 

2.4                                 **Stock Options.**  The Company will grant to the Executive anoption to purchase 1,200,000 shares of the Company’s common stock on August 29,2003, in accordance with the terms of the Company’s Global Stock Incentive Plan(the “Global Plan”), as the same may be amended from time to time, and anon-qualified stock option agreement to be entered into by the Executive andthe Company.  The exercise price forthis option shall be the “fair market value” of the Company’s common stock onAugust 29, 2003, as determined in accordance with the terms of the GlobalPlan.  Except as otherwise provided inSection 3.2.3, assuming the Executive remains employed with the Company or anyAffiliate as of the dates set forth below, these options will vest over a three(3) year-period as follows:

 
| **Grant**                               |   | **Vesting Date**                                                          |
|-----------------------------------------|--------|---------------------------------------------------------------------------|
| 400,000 options                         |   | August 13, 2004                                                           |
|                                    |   |                                                                      |
| 100,000  options per quarter thereafter |   | Last day of each fiscal  quarter thereafter, commencing November 30, 2004 |

 

2.5                                 **Restricted Stock Grant.**  The Company will grant to the Executive650,000 shares of the Company’s common stock in accordance with the terms ofthe Global Plan, as the same may be amended from time to time, and a restrictedstock agreement to be entered into by the Executive and the Company.  Except as otherwise provided in Section3.2.3, assuming that the Executive remains employed with the Company or anyAffiliate as of the dates set forth below, these shares will vest over a three(3) year-period as follows:

 

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| **Grant**      |   | **Vesting Date** |
|----------------|--------|------------------|
| 216,667 shares |   | August 13, 2004  |
| 216,667 shares |   | August 13, 2005  |
| 216,666 shares |   | August 13, 2006  |

 

 

2.6                                 **Additional Equity Grants.**  The Executive will be eligible forconsideration for additional grants of equity in the Company beginning with thefiscal year 2005 Company equity grant cycle, and in conformity with thepractices and procedures of the Committee as in effect at such time.  During the Term, the Executive shall beentitled to participate in the equity plans offered generally by the Company toits executive employees, to the extent that the Executive’s position, tenure,salary and other qualifications make the Executive eligible to participate.

 

2.7                                 **Expenses.**  During the Term, the Executive shall be entitled to reimbursementfor all reasonable business expenses he incurs in carrying out his duties underthis Agreement in accordance with the policies and practices of the Company forsubmission of expense reports, receipts, or similar documentation of suchexpenses as in effect from time to time by the Company.

 

2.8                                 **Executive Perquisites.**  The Executive will be eligible to receiveany executive perquisites that the Company may from time to time deem areappropriate and administratively feasible to provide to its executives, generallyor to the Executive, specifically. Those perquisites shall include:

 

2.8.1                        $24,000annual perquisite allowance, paid at a rate of $2,000 per month, to coveradditional benefits that will best meet the Executive’s personal needs; and

 

2.8.2                        Payment ofreasonable club membership fees and, after the date hereof, payment ofreasonable monthly fees for one club selected by the Executive; provided that,the Committee reserves the right to determine whether such fees are reasonable.

 

**ARTICLE III:  TERMINATION OF EMPLOYMENT**

 

3.1                                 **Termination.**  The Executive’s employment under this Agreement may be terminatedduring the Term as described in this Article III.

 

3.1.1                        **Death orDisability.**  The Executive’s employment shall terminateautomatically upon the Executive’s death. The Executive’s employment shall terminate in the event the Executivebecomes “Totally Disabled.”  Forpurposes of this Agreement, “Totally Disabled” means “totally disabled” asdefined in the Company’s Group Long-Term Disability Plan applicable to seniorexecutives as in effect on the Commencement Date.

 

3.1.2                        **Termination by the Company for Cause.**  The Company may terminate this Agreement andthe Executive’s employment hereunder for Cause at any time after providingwritten notice to the Executive.  Forpurposes of this Agreement, “Cause” means:

 

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(a)                                  thegross neglect or willful failure or refusal of the Executive to perform theExecutive’s duties hereunder (other than as a result of total or partialincapacity due to physical or mental illness) including any breach of theExecutive’s fiduciary duties to the Company (including the Executive’s appropriation or attempted appropriation of a materialbusiness opportunity of  the Company);

 

(b)                                 theengaging by the Executive in intentional or willful misconduct which ismaterially injurious to the reputation, business, financial condition orbusiness relationships of the Company or the Executive’s reputation or businessrelationships;

 

(c)                                  perpetrationof an intentional and knowing fraud against or affecting the Company or anycustomer, supplier, client, agent, or executive thereof;

 

(d)                                 conviction(including conviction on a *nolo contendere*plea) of a felony or any crime involving fraud, dishonesty or moral turpitude;or

 

(e)                                  thebreach of any covenant set forth in Article IV or V hereof;

 

provided, however that:

 

(i)                                     thematters covered by clause (a) or (e) above shall not be deemed to constitute“Cause” hereunder if, in the reasonable good faith belief of the Executive, hisactions were in the best interests of the Company;

 

(ii)                                  atermination pursuant to clauses (a), (b), (c) or (e) shall not become effectiveunless the Company has delivered written notice to the Executive describingExecutive’s actions constituting “Cause” and the Executive has failed toconvince the Board within fifteen business (15) days thereafter that hisactions did not constitute “Cause” as described in such notice; and

 

(iii)                               atermination pursuant to clauses (a) or (e) above, if susceptible of cure, shallnot become effective unless the Executive fails to cure such failure to performor breach within forty-five (45) days after written notice from the Companyidentifying what reasonable actions shall be required to cure such failure toperform.

 

3.1.3                        **Termination by the Company without Cause**.  The Company may terminate this Agreement andthe Executive’s employment hereunder for any reason or no reason at any timeafter providing written notice to the Executive.  If the Company terminates the Executive’s employment for anyreason other than Cause, then the terms of Section 3.2.3 shall apply.

 

3.1.4                        **Termination by the Executive For Good Reason.**  The Executive may terminate his employmentfor Good Reason.  Good Reason will existin the event that the Company, without the Executive’s written consent:

 

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(a)                                  institutesa material adverse change in the Executive’s title or in the duties assigned tothe Executive;

 

(b)                                 requiresthe Executive to relocate his principal residence to a location other than theTwin Cities metropolitan area, except as provided in Section 1.3.3;

 

(c)                                  reducesthe total amount of the Executive’s Annual Base Salary below $550,000;

 

(d)                                 reducesthe annual EMIP Target Incentive for any fiscal year during the Term that theEMIP is in effect;

 

(e)                                  terminatesthe EMIP during the Term and does not offer the Executive an opportunity toearn the Target Incentive under another executive compensation plan of theCompany;

 

(f)                                    reducesthe aggregate benefits package described in Sections 2.3 through 2.8 availableto the Executive in a manner that is materially and adversely disproportionatein effect to the Executive when compared on a relative basis to the effects ofsuch action on other senior executives of the Company, and such reductions werenot supported by the Executive;

 

(g)                                 doesnot nominate the Executive as a candidate to serve on the Board;

 

(h)                                 entersinto a Change in Control (as such term is defined in Section 3.4) transactionthe result of which is that the Executive no longer is serving as the chiefexecutive officer of a publicly reporting company;

 

(i)                                     removes,as a general matter, the Executive’s primary authority to supervise and managethe executive officers of the Company who report directly to the ChiefExecutive Officer through the general assumption of that authority by theBoard, or any committee or individual member of the Board; provided that, anyaction of the Board, or any committee or individual member of the Board, toseek information directly from, or to request that a project be undertaken atthe direction of the Board by, any such executive officer shall not constitute“Good Reason” hereunder; and provided further, that the Executive acknowledges and agrees that neither of the followingsets of activities constitutes “Good Reason:” (i) the Company’s internal audit function continuing to report directlyto the Audit Committee on an ongoing basis, and (ii) certain executive officersand their staffs continuing to have ongoing responsibilities to support theBoard and its committees; or

 

(j)                                     substantiallyfails to comply with the provisions of Article II hereof; provided, however,that an unintentional failure to comply or a failure to

 

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comply that results fromadministrative oversight shall not give rise to Good Reason, if such failure ispromptly corrected.

 

The Executive shall have Good Reason to terminate his employment if (i)within forty-five (45) days following the Executive’s actual knowledge of theevent which the Executive determines constitutes Good Reason, he notifies theCompany in writing that he has determined a Good Reason exists and specifiesthe event creating Good Reason, and (ii) following receipt of such notice, theCompany fails to remedy such event within forty-five (45) days.  If either condition is not met, theExecutive shall not have a Good Reason to terminate his employment.

 

3.1.5                        **Continuation of Provisions.**  Notwithstanding any termination of theExecutive’s employment with the Company, the Executive, in consideration of theExecutive’s employment hereunder to the date of employment termination, shallremain bound by the provisions of this Agreement which specifically relate to periods,activities or obligations upon or subsequent to the termination of theExecutive’s employment, including, but not limited to, the covenants containedin Articles IV and V hereof and the Employee Invention Agreement, as definedin, and subject to the conditions stated in, Section 4.1.

 

3.1.6                        **Surrender of Records and Property.**  Upon any termination of the Executive’semployment with the Company, the Executive shall deliver promptly to theCompany 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 the Company or any Company Affiliate or which relatein any way to the business, products, practices or techniques of the Company orany Company Affiliate, and all other property, trade secrets and “ConfidentialInformation” (as defined in Section 4.2) of the Company or any CompanyAffiliate, including, but not limited to, all tangible, written, graphical,machine readable and other materials (including all copies) which in whole orin part contain any trade secrets or Confidential Information of the Company orany Company Affiliate which in any of these cases are in the Executive’spossession or under the Executive’s control. This includes all copies or specimens in the Executive’s possession,whether prepared or made by others or the Executive.  Upon any termination of the Executive’s employment, the Executiveshall also refrain from accessing the Company’s files via computer or modem.  The Executive shall acknowledge in writingthe return of all such materials, when requested to do so by the Company.

 

Notwithstandingthe foregoing, the Executive shall be entitled to retain one copy of thisAgreement, any stock option, restricted stock or other plan or agreement withthe Company pursuant to which the Executive retains any rights at the time ofhis employment termination with the Company, and documentation provided to theExecutive during his employment relating to such compensation or benefits.

 

3.2                                 **Compensation Following Termination Prior to the End ofthe Term.**  In the eventthat the Executive’s employment hereunder is terminated prior to the end of theTerm, the

 

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Executive shall be entitled only to the following compensation andbenefits upon such termination:

 

3.2.1                        **Termination by Reason of the Executive’s Death orTotal Disability.**  In theevent that the Executive’s employment is terminated prior to the expiration ofthe Term by reason of the Executive’s death or Total Disability, then:

 

(a)                                  TheCompany shall pay the following amounts to the Executive, the Executive’sspouse or his estate, as the case may be: any amounts due to the Executive for Annual Base Salary through the dateof employment termination, together with any other unpaid and pro rata amountsto which the Executive is entitled as of the date of termination pursuant toArticle II of this Agreement, including, without limitation, amounts that theExecutive is entitled to under any benefit plan of the Company in accordancewith the terms of such plan; and

 

(b)                                 Tothe extent vested on the date of the Executive’s employment termination, theexercise period of the options granted to the Executive on August 29, 2003,will be to be extended to the earlier of the third anniversary of the date ofthe Executive’s employment termination and August 29, 2013; and

 

(c)                                  Thevesting of all shares of restricted stock granted to the Executive on August29, 2003, will be accelerated to the date of the Executive’s employment termination.

 

Except as otherwise set forth above, the Executive will have no rightsto any unvested benefits or any other compensation or payments coming due afterthe date of the Executive’s employment termination.

 

3.2.2                        **Termination by the Company for Cause or by theExecutive Without Good Reason.** If the Executive’s employment is terminated by the Company for Cause orthe Executive voluntarily terminates employment without Good Reason, theCompany shall pay to the Executive (a) any Annual Base Salary earned but notpaid through the date of the Executive’s employment termination, plus (b) theamount of any other benefits to which the Executive is legally entitled as ofsuch date under the terms and conditions of any benefit plans of the Company inwhich the Executive is participating as of such date.  The Company shall have no further obligations under thisAgreement.

 

3.2.3                        **Termination by the Executive for Good Reason or by theCompany Without Cause.** In the event that the Executive’s employment is terminated by theExecutive for Good Reason or by the Company without Cause, and provided thatthe Executive has executed a written release to the Company in substantiallythe same form attached hereto as Exhibit A and the rescission period specifiedtherein has expired, the Company shall:

 

(a)                                  paythe following amounts to the Executive:

 

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(i)                                     anyaccrued but unpaid Annual Base Salary in effect at the date of termination ofthe Executive’s employment with the Company for services rendered to such date;

 

(ii)                                  alump sum severance payment of 200% of the sum of the Annual Base Salary and theamount payable under the then-current EMIP, assuming that the Executive wereeligible for a payment thereunder at the EMIP Target Incentive in effect at thedate of termination;

 

(iii)                               uponhis election of COBRA continuation coverage, ADC shall continue to pay anamount equal to the current employer contribution to medical and dentalpremiums until such time as a) the Executive first becomes covered by anothergroup medical and dental coverage or b) six months following the terminationdate, whichever is earlier; and

 

(iv)                              theamount of any other benefits to which the Executive is legally entitled as ofsuch date under the terms and conditions of any benefit plans of the Company inwhich the Executive is participating as of the date of termination; and

 

(b)                                 causethe vesting of the unvested portions of the 1,200,000 options and the 650,000restricted shares granted on August 29, 2003, to be accelerated to the date oftermination; and

 

(c)                                  causethe exercise period for the unexercised options granted to the Executive onAugust 29, 2003, to be extended to the earlier of the third anniversary of thedate of termination and August 29, 2013.

 

The Company shall have no further obligations under this Agreement.

 

3.2.4                        **Change in Control****.**  Following a “Change in Control” (as thatterm is defined in the Company’s Change in Control Plan applicable to theExecutive, as such plan may be amended from time to time), the Executive willbe eligible to receive payments and benefits under such Change in Control Planas then in effect.  If a Change inControl occurs during the Term, this Agreement shall remain in effect followingsuch Change in Control for the remainder of the Term.  If the Executive receives payments and benefits under such Changein Control Plan as then in effect, the Executive shall not be entitled toreceive any payments or benefits under this Agreement.  If the Executive receives payments andbenefits under this Agreement following a Change in Control, then Executiveshall not be entitled to receive any payments or benefits under such Change inControl Plan as then in effect.

 

3.3                                 **No Other Benefits.**  If the Executive receives the payments andbenefits described in this Article III, the Executive will not be eligible toreceive from the Company or any Affiliate any other severance or terminationpayments or benefits of any kind, including but not limited to those providedin Article II of this Agreement.

 

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**ARTICLE IV:  CONFIDENTIAL INFORMATION**

 

4.1                                 **Purpose and Scope. **As a condition precedent to the Companyhiring the Executive as President and Chief Executive Officer and the Company’sperformance of its obligations hereunder, the Executive shall execute anddeliver to the Company the Employee Invention, Copyright and Trade SecretAgreement in the form attached hereto as **ExhibitB** (the “Employee Invention Agreement”).  To the extent of any inconsistencies between the terms of thisAgreement and the terms of the Employee Invention Agreement, the terms of thisAgreement shall control during the Term (and any period during which theinconsistent sections of this Agreement survive beyond such Term).  For purposes of clarification and not inlimitation of the foregoing sentence, the parties acknowledge and agree that,during such period of time, the identified sections of the Agreement shallcontrol over the comparable provisions of the Employee Inventions Agreement, asset forth in Exhibit C hereto.

 

4.2                                 **Nondisclosure.**  At all times during the Executive’semployment and thereafter, the Executive will hold in the strictest confidenceand will not disclose, use, lecture upon or publish any of the Company’sConfidential Information, except as such disclosure, use or publication may berequired in connection with the Executive’s work for the Company, or unless theCompany expressly authorizes such disclosure in writing.  The Executive will obtain the Company’swritten approval before publishing or submitting for publication any material(written, verbal or otherwise) that relates to the Executive’s work at theCompany and/or incorporates any Confidential Information.  The Executive hereby assigns to the Companyany and all rights, title and interest the Executive may have or acquire in theConfidential Information and recognizes that all of the ConfidentialInformation is and shall be the sole property of the Company and its successorsand assigns.

 

As used herein,“Confidential Information” means information that was developed, created, ordiscovered by or on behalf of the Company, or which became or will become knownby, or was or is conveyed to the Company, which has commercial value in theCompany’s business.  “ConfidentialInformation” includes, but is not limited to, software programs, source andobject code, algorithms, trade secrets, designs, technology, know-how,processes, data, ideas, techniques, inventions (whether patentable or not),works of authorship, formulas, business and product development plans, customerlists, terms of compensation and performance levels of the Company employees,financial, strategic and other information concerning the Company’s actual oranticipated business, research or development, or which is received inconfidence by or for the Company from any other person.  Information shall cease to be “ConfidentialInformation” at such time as it becomes known to the general public through nofault of the Executive (including no breach of this Section 4.2 by theExecutive).

 

**ARTICLE V:  NON-COMPETITION, NON-SOLICITATION NON-HIRE AND NON-DISPARAGEMENT**

 

5.1                                 **Non-Competition Covenant.**  In consideration of the financial and otherbenefits described in this Agreement, the Executive agrees that, during theperiod commencing on the Commencement Date and ending on the date thatis one (1) year after the date on which the Executive ceases to beemployed by the Company (for whatever reason and whether such cessation isoccasioned by the Company or the Executive), the Executive shall not, directlyor

 

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indirectly, and in any manner or capacity (e.g., as an advisor,principal, agent, partner, officer, director, investor, shareholder, employee,member of any association or otherwise), engage in any business activities thatare competitive with the business conducted by the Company or any CompanyAffiliate on or prior to the date the Executive ceases to be employed by theCompany.

 

5.2                                 **Geographical Extent of Covenant.**  The Executive acknowledges that the Companydirectly, or indirectly through the Company Affiliates, currently is engaged inbusiness on a world-wide basis.  Consequently, the Executive agrees thathis obligations under this Article V shall apply in any market, foreign ordomestic, in which: (a) the Company or, as applicable, a Company Affiliate(s),operates during the one-year period described in Section 5.1; and (b) theCompany or, as applicable, a Company Affiliate(s), has plans to enter on thedate the Executive ceases to be employed by the Company.

 

5.3                                 **Limitation on Covenant.**  Ownership by the Executive, as a passiveinvestment, of less than one percent (1%) of the outstanding shares of capitalstock of any corporation listed on a national securities exchange or publiclytraded in the over-the-counter market shall not constitute a breach of thisArticle V.

 

5.4                                 **Non-Solicitation And Non-Hire.**  The Executive agrees that, for a period oftwo (2) years after termination of his employment for any reason (and whetheroccasioned by the Company or the Executive), the Executive shall not, exceptwith the prior written consent of the Company: (a) hire or attempt to hire for employment any person who is employed bythe Company or a Company Affiliate, or attempt to influence any such person toterminate employment with the Company or any Company Affiliate; (b) induce orattempt to induce any employee of the Company or any Company Affiliate to workfor, render services to, provide advice to, or supply confidential businessinformation or trade secrets of the Company or any Company Affiliate to anythird person, firm or corporation; or (c) induce or attempt to induce anycustomer, supplier, licensee, licensor or other business relation of the Companyor any Company Affiliate to cease doing business with the Company or suchCompany Affiliate, or in any way interfere with the relationship between anysuch customer, supplier, licensee, licensor or other business relation and theCompany or any Company Affiliate.  Nothing herein shall prohibit theExecutive from general advertising for personnel not specifically targeting anyemployee or other personnel of the Company, or from hiring any such employee orother personnel responding to such general advertising.

 

The foregoing limitations shall not apply with respectto:  (i) any former employee of theCompany whose employment terminated prior to the Commencement Date, or (ii) anyemployee of the Company whose employment is terminated after the CommencementDate and prior to the date of the Executive’s termination of employment, solong as at least six (6) months have passed between the date of such employee’semployment termination and the date of any action by the Executive set forth inthe first sentence of this Section 5.4.

 

5.5                                 **Non-Disparagement. **Duringand after the Term,****the Executive agrees not to make anyremarks (whether in public or private) knowingly or intentionally disparagingthe Company or any Company Affiliate, or their respective products, services,officers, director or

 

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employees, whether past or current, including any present, former orfuture director, officer, employee or agent of the Company or any CompanyAffiliate.

 

**ARTICLE VI:  DISPUTE RESOLUTION PROCESS**

 

6.1                                 **Dispute Defined.**  The Company and the Executive desire toestablish a reasonable and confidential means of resolving any dispute,question or interpretation arising out of or relating to (i) this Agreement orthe alleged breach or threatened breach of it, (ii) the making of thisAgreement, including claims of fraud in the inducement, (iii) the Executive’semployment by the Company pursuant to this Agreement, including claims ofwrongful termination or discrimination, or (iv) any activities by the Executiverestricted by Articles IV and V and by Exhibit B (to the extent applicable) ofthis Agreement following the cessation of his employment with the Company (eachsuch dispute to be referred to herein as a “Dispute”).

 

6.2                                 **Procedure.**  In furtherance of the parties’ mutual desire, the Company and theExecutive agree that if either party believes a Dispute exists, that partyshall provide the other with written notice of the claimed Dispute.  Uponreceipt of that written notice, the following procedure shall be the exclusivemeans of fully and finally resolving the Dispute.  First, within thirty(30) days of the other party receiving that notice, the Executive andappropriate representatives of the Company and/or Board will meet to attempt toresolve amicably the Dispute.  Second, if a mutually agreeable resolutionis not reached within thirty (30) days following the parties’ first meeting,the parties will engage in mediation with a mutually agreeable neutralmediator, said mediation to be held within forty-five (45) days of the finalmeeting between the Executive and representatives of the Company and/orBoard.  The Company shall pay the fees and expenses of the mediator.  Third, if the Dispute is not resolvedthrough mediation within thirty (30) days, the Dispute shall be resolvedexclusively by final and binding arbitration held in accordance with theprovisions of this Agreement and the American Arbitration Association (“AAA”)National Rules for the Resolution of Employment Disputes then in effect, unlesssuch rules are inconsistent with the provisions of this Agreement.  Inconnection with such arbitration:

 

(a)                                  Any sucharbitration shall be conducted: (A) by a neutral arbitrator appointed by mutualagreement of the parties; or (B) failing such agreement, by a neutralarbitrator appointed in accordance with said AAA rules;

 

(b)                                 The partiesshall be permitted reasonable discovery in accordance with the provisions ofthe Minnesota Rules of Civil Procedure, including the production of relevantdocuments by the other party, the exchange of witness lists, and a limitednumber of depositions, including depositions of any expert who will testify atthe arbitration;

 

(c)                                  Thearbitrator’s award shall include findings of fact and conclusions of lawshowing the legal and factual bases for the arbitrator’s decision;

 

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(d)                                 Thearbitrator shall have the authority to award to the prevailing party any remedyor relief that a United States District Court or court of the State ofMinnesota could order or grant if the dispute had first been brought in thatjudicial forum, including costs and attorneys’ fees;

 

(e)                                  Thearbitrator’s award may be entered by any court of competent jurisdiction; and

 

(f)                                    Unlessotherwise agreed by the parties, the place of any arbitration proceeding shallbe Minneapolis, Minnesota.

 

6.3                                 **Confidentiality of Dispute Resolution. **Except as the parties shall agree in writing, upon court order, or as requiredby law, neither the Company nor the Executive will disclose to any third party,except for their counsel, retained experts and other persons directly servingcounsel or retained experts, any fact or information in any way pertaining tothe process of resolving a Dispute under this Article VI, or to the fact of orany term that is part of a resolution or settlement of any Dispute.  Thisprohibition on disclosure specifically includes, without limitation, anydisclosure of an oral statement or of a written document made or provided byeither the Executive or the Company, or by any of its or his representatives,counsel or retained experts, or other persons directly serving anyrepresentatives, counsel or retained experts.

 

6.4                                 **Right to Injunctive Relief.**  The Executive acknowledges and agrees thatthe services to be rendered by him hereunder are of a special, unique andextraordinary character, that it would be difficult to replace such servicesand that any violation of the Executive’s obligations under either Article IVor Article V would be highly injurious to the Company and/or to any CompanyAffiliate and that it would be extremely difficult to compensate the Companyand/or any Company Affiliate fully for damages for any such violation.  Accordingly, notwithstanding the terms ofthis Article VI, the Company or any Company Affiliate, as the case may be,shall be entitled to seek temporary and permanent injunctive relief from acourt of law, in the event of violation by the Executive of any of hisobligations under any provision of either Article IV or Article V.  This provision with respect to injunctiverelief shall not, however, diminish the right of the Company, any CompanyAffiliate or the Executive to claim and recover damages, or to seek and obtainany other relief available to it pursuant to the provisions of this Article VI.

 

**ARTICLE VII:  ASSIGNMENT; SUCCESSORS.**

 

7.1                                 **Assignment**.  This Agreement is personal to the Executive and, without theprior written consent of the Company, shall not be assignable by theExecutive.  This Agreement shall inure to the benefit of and beenforceable by the Executive’s heirs, executors and administrators.

 

7.2                                 **Successors**.  This Agreement shall inure to the benefit of and be binding uponthe Company and its successors and assigns, provided that the Company may notassign this Agree­ment except in connection with the assignment or dispositionof all or substantially all of the as­sets or stock of the Company, or by lawas a result of a merger or consolidation.

 

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**ARTICLE VIII:  MISCELLANEOUS PROVISIONS**

 

8.1                                 **Notices**.  All notices and other communications under this Agreement shallbe in writing and shall be given by hand delivery to the other party, byregistered or certified mail, return receipt requested, postage prepaid, or bytelefacsimile with printed confirmation, addressed as follows:

 

If to the Executive: 

Robert E. Switz

5930 Boulder Bridge Lane

Shorewood, Minnesota  55331

Fax:  (952)401-0061

 

 

With a copy to:

Lindquist & Vennum PLLP

4200 IDS Center

Minneapolis, Minnesota 55402

Fax:  (612) 371-3207

Attention:  Edward J. Wegerson

 

 

If to the Companyby mail or fax:

ADCTelecommunications Inc. 

P.O. Box 1101 

Minneapolis,Minnesota 55440-1101 

Fax:  (952) 917-0708

Attention:  Chairman of Compensation Committee 

With a copyto:  Chief Legal Officer

 

 

If to the Company by handdelivery:

ADC TelecommunicationsInc. 

13625 Technology Drive 

Eden Prairie, Minnesota55344-2252 

Attention:  Chairman of Compensation Committee 

With a copy to:  Chief Legal Officer

 

or to such other address as either party furnishes to the other inwriting in accordance with this paragraph.  Notices and communicationsshall be effective when actually received by the addressee or three (3) daysafter the initiation of delivery; provided, that this period will not extendany period of notice specifically set forth in this Agreement.

 

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Any party maychange the address for the purpose of this Section by giving the other writtennotice of the new address in the manner set forth above.

 

8.2                                 **Enforceability****.**  Tothe extent any provision of this Agreement shall be determined to be invalid orunenforceable in any jurisdiction, such provision shall be deemed to be deletedfrom this Agreement as to such jurisdiction only, and the validity andenforceability of the remainder of such provision and of this Agreement shallbe unaffected.  In furtherance of and not in limitation of the foregoing,the Executive and the Company expressly agree 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 such jurisdictiononly, shall be construed to cover only that duration, extent or activities thatmay validly or enforceably be covered. The Company and the Executive acknowledge the uncertainty of the law inthis area with respect to Sections 5.1 and 5.2, and expressly stipulate thatthis Agreement is to be given the construction that renders its provisionsvalid and enforceable to the maximum extent (not exceeding its express terms)possible under applicable law.

 

8.3                                 **Taxes****.**  Notwithstandingany other provision of this Agreement, the Company shall withhold from anyamount payable under this Agreement all federal, state, local and foreign taxesthat are required to be withheld by applicable laws or regulations, or that areconsistent with the Company’s prevailing practice.

 

8.4**                                 GoverningLaw, Construction, and Severability**. The validity, interpretation, performance and enforcement of thisAgreement shall be governed by the laws of the State of Minnesota.  In the event any provision of this Agreementshall be held illegal or invalid for any reason, said illegality or invalidityshall not in any way affect the legality or validity of any other provision ofthis Agreement.  It is the intention ofthe parties hereto that the Company be given the broadest possible protectionrespecting its Confidential Information and trade secrets and respectingcompetition by the Executive following the Executive’s separation from theCompany.

 

8.5**                                 Venue**.  Any action at law, suit in equity orjudicial proceeding arising directly, indirectly or otherwise in connectionwith, out of, related to or from this Agreement or any provision hereof shallbe litigated only in the State of Minnesota, Hennepin County District Court, orthe United States District Court for the District of Minnesota.  The Executive waives any right the Executivemay have to transfer or change the venue of any litigation brought against theExecutive by the Company.

 

8.6**                                 EntireAgreement**.  This Agreement(together with the Exhibits attached hereto) is the final, complete andexclusive agreement of the parties with respect to the subject matter hereofand supersedes all prior discussions between the Company and the Executiveregarding the subject matter hereof.  Nomodification of, or amendment to, this Agreement, nor any waiver of eitherparty’s rights under this Agreement, will be effective unless in writing andsigned by both parties.  Any subsequentchange or changes in the Executive’s duties, obligations, salary or compensationwill not affect the validity or scope of this Agreement.

 

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8.7**                                 Counterparts**.  This Agreement may be simultaneouslyexecuted in any number of counterparts, and such counterparts executed anddelivered, each as an original, shall constitute but one and the sameinstrument.

 

8.8**                                 Captionsand Headings**.  The captions andparagraph headings used in this Agreement are for convenience of referenceonly, and shall not affect the construction or interpretation of this Agreementor any of the provisions hereof.

 

8.9**                                 Survivability.**  The provisions of this Agreement that bytheir terms call for performance subsequent to termination of the Executive’semployment under this Agreement, or of this Agreement, shall so survive suchtermination.  For purposes of clarificationand not in limitation of the foregoing sentence, the parties acknowledge andagree that Articles IV, V and VIII, Section 3.1.6 and the last sentence ofSection 1.2 (and, solely for purposes of enforcing the last sentence of Section1.2, Sections 3.1.2 and 3.2.3) shall survive the termination of this Agreement.

 

8.10                           **Waiver.**  No waiver by the Company or the Executive of any breach orviolation of this Agreement shall be a waiver of any preceding or succeedingbreach or violation.  No waiver by theCompany or the Executive of any right under this Agreement shall be construedas a waiver of any other right hereunder. Except as otherwise provided in Section 3.1.2 or Section 3.1.4, neitherthe Company nor the Executive shall not be required to give notice to enforcestrict adherence to any of the terms or conditions of this Agreement.

 

8.11                           **No Conflicting Obligations.*** *TheExecutive represents that the Executive’s performance of all the terms of thisAgreement and as an the Executive of the Company does not and will not breachany agreement to keep in confidence information acquired by the Executive inconfidence or in trust prior to the Executive’s employment with theCompany.  The Executive has not enteredinto, and the Executive agrees that he or she will not enter into, anyagreement, either written or oral, in conflict with this Agreement.

 

8.12                           **Representationof the Executive**.  TheExecutive represents and warrants to the Company that the Executive is free toenter into this Agreement and has no contract, commitment, arrangement orunderstanding to or with any party that restrains or is in conflict with theExecutive’s performance of the covenants, services and duties provided for inthis Agreement.  The Executive agrees toindemnify the Company and to hold it harmless against any and all liabilitiesor claims arising out of any unauthorized act or acts by the Executive that,the foregoing representation and warranty to the contrary notwithstanding, arein violation, or constitute a breach, of any such contract, commitment,arrangement or understanding.

 

8.13                           **Advice of Counsel**.  The Executive acknowledges that he has beenprovided the opportunity to seek, and has obtained, the advice of counsel inconnection with the negotiation and execution of this Agreement.

 

8.14                           **No Strict Construction**. Each of theExecutive and the Company acknowledges and agrees that the language used inthis Agreement and the other agreements referred to herein is, and shall bedeemed to be, the language chosen by the parties to express their mutualintent, and no rule of strict construction shall be applied against eitherparty hereto.

 

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8.15                           **Good Faith and Fair Dealing**.  Each of the Executive and the Companyacknowledges and agrees that his or its respective performance of his or itsobligations under this Agreement shall be conducted in good faith and with fairdealing toward the other party hereto.

 

8.15                           **Legal Fees**.  The Company shall reimburse the Executive for the reasonable, andappropriately documented, fees and expenses of counsel to the Executive inconnection with the negotiation and execution of this Agreement, up to amaximum total reimbursement of $10,000.

 

**[REMAINDEROF PAGE INTENTIONALLY LEFT BLANK]**

 

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IN WITNESSWHEREOF, the parties hereto have executed this Agreement as of the date firstabove written.

 

Dated this 29 dayof August, 2003

 

 
| /s/ Robert E. Switz          |                            |
|------------------------------|---------------------------------|
| ROBERT E. SWITZ              |                            |
|                         |                            |
|                         |                            |
| ADC TELECOMMUNICATIONS, INC. |                            |
|                         |                            |
|                         |                            |
| By                           | /s/  Laura Owen                 |   |
|                         | Laura Owen                      |   |
|                         | Vice President, Human Resources |   |

 

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**EXHIBIT A**

 

*GENERAL RELEASE*

 

This GeneralRelease is made and entered into as of the          day of                            ,                , by Robert E. Switz (“the Executive”).

 

***WHEREAS***, ADC Telecommunications, Inc.(the “Company”) and the Executive are parties to an Employment Agreement datedas of August 13, 2003;

 

***WHEREAS***, the Executive intends tosettle any and all claims that the Executive has or may have against theCompany as a result of the Executive’s employment with the Company and thecessation of the Executive’s employment with the Company; and

 

***WHEREAS***, under the terms of theEmployment Agreement, which the Executive agrees are fair and reasonable, theExecutive agreed to enter into this General Release as a condition precedent tothe severance arrangements described in Article III of the EmploymentAgreement;

 

***NOW, THEREFORE***, in consideration ofthe provisions and the mutual covenants herein contained, the parties agree asfollows:

 

**1.****                                      Release.**  For the consideration expressed in theEmployment Agreement, the Executive does hereby fully and completely releaseand waive any and all claims, complaints, causes of action, demands, suits, anddamages, of any kind or character, which the Executive has or may have againstthe Released Parties, as hereinafter defined, arising out of any acts,omissions, conduct, decisions, behavior, or events occurring up through thedate of the Executive’s signature on this General Release, including theExecutive’s employment with the Company and the cessation of thatemployment.  For purposes of thisGeneral Release, “Released Parties” means collectively the Company, itspredecessors, successors, assigns, parents, affiliates, subsidiaries, relatedcompanies, officers, directors, shareholders, agents, servants, executives, andinsurers, and each and all thereof.

 

The Executiveunderstands and accepts that his release of claims includes any and allpossible discrimination claims, including but not limited to claims basedupon:  Title VII of the Federal CivilRights Act of 1964, as amended; the Age Discrimination in Employment Act; theAmericans with Disabilities Act; the Equal Pay Act; the Fair Labor StandardsAct; the Employee Retirement Income Security Act; the Minnesota Human RightsAct; Minn. Stat. §181.81; the Minneapolis Code of Ordinances; or any otherfederal, state or local statute, ordinance or law.  The Executive also understands that the Executive is giving upall other claims, including those grounded in contract or tort theories,including but not limited to:  wrongfuldischarge; violation of Minn. Stat. §176.82; breach of contract; tortiousinterference with contractual relations; promissory estoppel; breach of theimplied covenant of good faith and fair dealing; breach of express or impliedpromise; breach of manuals or other policies; 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; whistleblower; intentionalor negligent infliction of emotional distress; or any other theory, whetherlegal or equitable.

 

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The Executivefurther understands that the Executive is releasing, and does hereby release,any claims for damages, by charge or otherwise, whether brought by him or onhis behalf by any other party, governmental or otherwise, and agrees not toinstitute any claims for damages via administrative or legal proceedingsagainst any of the Released Parties. The Executive also waives and releases any and all rights to moneydamages or other legal relief awarded by any governmental agency related to anycharge or other claim against any of the Released Parties.

 

This Release doesnot apply to any post-termination claim that the Executive may have forbenefits under the provisions of any Executive benefit plan maintained by theCompany, or for any benefits or payments due to the Executive after the datehereof under the terms of the Employment Agreement.

 

The Executive’srelease of claims shall not apply to any claims the Executive might have toindemnification under Minnesota Statute §302A.521, any other applicable statuteor regulation, or the Company’s by-laws.

 

**2.****                                      Rescission.**  The Executive has been informed of theExecutive’s right to rescind this General Release by written notice to theCompany within fifteen (15) calendar days after the execution of this GeneralRelease.  The Executive has beeninformed and understands that any such rescission must be in writing anddelivered to the Company by hand, or sent by mail within the 15-day timeperiod.  If delivered by mail, therescission must be:  (1) postmarkedwithin the applicable period and (2) sent by certified mail, return receiptrequested.

 

The Executiveunderstands that the Company will have no obligations under the EmploymentAgreement in the event a notice of rescission by the Executive is timelydelivered, and, in the event the Executive rescinds this General Release, theExecutive agrees to repay to the Company any payments made to him or benefitsconferred upon him pursuant to Article III of the Employment Agreement prior tothe date of rescission.

 

**3.****                                      AcceptancePeriod; Advice of Counsel. **Theterms of this General Release will be open for acceptance by the Executive fora period of 21 days after the date of the Executive’s employment termination,during which time the Executive may consider whether or not to accept thisGeneral Release.  The Executive agreesthat changes to this General Release, whether material or immaterial, will notrestart this acceptance period.  TheExecutive is hereby advised to seek the advice of an attorney regarding thisGeneral Release.

 

**4.****                                      BindingAgreement. **This General Releaseshall be binding upon, and inure to the benefit of, the Executive and theCompany and their respective successors and permitted assigns.

 

**5.****                                      Representation.  **The Executive hereby acknowledges andstates that he has read this General Release. The Executive further represents that this General Release is written inlanguage that is understandable to him, that he fully appreciates the meaningof its terms, and that he enters into this General Release freely andvoluntarily.

 

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***IN WITNESS WHEREOF,*** the Executive,after due consideration, has authorized, executed, and delivered this GeneralRelease all as of the date first written.

 
|   |            |
|--------|-----------------|
|   | Robert E. Switz |

 

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**EXHIBIT B**

** **

**PROPRIETARY INFORMATION,INVENTION and CONFIDENTIALITY AGREEMENT**

 

In consideration of my employment by ADC Telecommunications,Inc. (hereafter referred to as “the Company”), and the compensation received byme from the Company from time to time, I hereby agree to the following terms ofthis Proprietary Information, Invention and Confidentiality Agreement(hereafter referred to as “Agreement”):

 

1.                                       Definitions:

 

a.                                       As used in this Agreement, **“ADC Telecommunications, Inc.”** and **“the Company”** refer to ADCTelecommunications, Inc. and each of its subsidiaries.  I recognize and agree that my obligationsunder this Agreement and all terms of this Agreement apply to me regardless ofwhether I am employed by or work for ADC Telecommunications, Inc. or anysubsidiary or affiliated company of ADC Telecommunications, Inc.  Furthermore, I understand and agree that theterms of this Agreement will continue to apply to me even if I transfer at sometime from one subsidiary or affiliate of the Company to another.

 

b.                                      I understand that the Company possessesand will possess Proprietary Information which is important to itsbusiness.  For purposes of thisAgreement, **“Proprietary Information”**is information that was developed, created, or discovered by or on behalf ofthe Company, or which became or will become known by, or was or is conveyed tothe Company, which has commercial value in the Company’s business.  “Proprietary Information” includes, but isnot limited to, software programs, source and object code, algorithms, tradesecrets, designs, technology, know-how, processes, data, ideas, techniques,inventions (whether patentable or not), works of authorship, formulas, businessand product development plans, customer lists, terms of compensation andperformance levels of the Company employees, and other information concerningthe Company’s actual or anticipated business, research or development, or whichis received in confidence by or for the Company from any other person.  I understand that my employment creates arelationship of confidence and trust between me and the Company with respect toProprietary Information.

 

c.                                       I understand that the Company possessesor will possess **“Company Documents andMaterials”** which are important to its business.  For purposes of this Agreement, “CompanyDocuments and Materials” are documents or other media or tangible items thatcontain or embody Proprietary Information or any other information concerningthe business, operations or plans of the Company, whether such documents, mediaor items have been prepared by me or by others.   “Company Documents and Materials” include, but are not limitedto, blueprints, drawings, photographs, charts, graphs, notebooks, customerlists, computer disks, tapes or printouts, sound recordings and other printed,typewritten or handwritten documents, sample products, prototypes and models.

 

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2.                                       Confidentialityand Assignment.  All ProprietaryInformation, including but not limited to all patents, patent rights,copyrights, trade secret rights, trademark rights and other rights (including,without limitation, intellectual property rights) anywhere in the world inconnections therewith shall be the sole property of the Company.  I hereby assign to the Company any and allrights, title and interest I may have or acquire in such Proprietary Information.  At all times, both during my employment bythe Company and after its termination, I will keep in confidence and trust andwill not use or disclose any Proprietary Information or anything relating to it(or any information of a third party if disclosed to the Company by such third partyin confidence), without the prior written consent of an officer of the Company,except as my be necessary in the ordinary course of performing my duties to theCompany.

 

3.                                       WrittenRecords and Company Documents.  Iagree to make and maintain adequate and current written records, in a formspecified by the Company, of all inventions, trade secrets and works ofauthorship assigned or to be assigned to the Company pursuant to thisAgreement.  All the Company Documentsand Materials shall be the sole property of the Company.  I agree that during my employment by theCompany, I will not remove any Company Documents and Materials from thebusiness premises of the Company or deliver any Company Documents and Materialsto any person or entity outside the company, except as I am required to do inconnection with performing the duties of my employment.   I further agree that, immediately upon thetermination of my employment by me or by the Company for any reason, or during myemployment if so requested by the Company, I will return all Company Documentsand Materials, apparatus, equipment and other physical property, or anyreproduction of such property, excepting on (i) my personal copies of recordsrelating to my compensation; (ii) my personal copies of any materialspreviously distributed generally to stockholders of the Company; and (iii) mycopy of the Agreement.

 

4.                                       Disclosureof Inventions.  I will promptlydisclose in writing to my immediate supervisor, or to such other persondesignated by the Company, all **“Inventions,”**which includes, without limitation, all software programs or subroutines,source or object code, algorithms, improvements, inventions, works ofauthorship, trade secrets, technology, designs, formulas, ideas, processes,techniques, know-how and data, whether or not patentable, made or discovered orconceived or reduced to practice or developed by me, either alone or jointlywith others, during the term of my employment. I will also disclose to the President of the Company all Inventionsmade, discovered, conceived, reduced to practice, or developed by me within six(6) months after the termination of my employment with the Company whichresulted, in whole or in part, from my prior employment by the Company.  Such disclosures shall be received by theCompany in confidence (to the extent such Inventions are not assigned to theCompany pursuant to paragraph (5) below) and do not extend the assignment madein paragraph (5) below.

 

5.                                       InventionsProperty of the Company.  I agreethat all inventions which I make, discover, conceive, reduce to practice ordevelop (in whole or in part, either alone or jointly with others) during myemployment shall be the sole property of the Company to the maximum extentpermitted by applicable law.  Appendix Ato this Agreement provides notice and a summary of applicable state laws in theU.S.

 

This assignment shall not extend to Inventions, the assignment of whichis prohibited by applicable law, including but not limited to those summarizedin Appendix A.

 

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6.                                       OtherRights of the Company.  The Companyshall be the sole owner of all patents, patent rights, copyrights, trade secretrights, trademark rights and all other intellectual property or other rights inconnection with Inventions that are the sole property of the Company.  I further acknowledge and agree that suchInventions, including, without limitation, any computer programs, programmingdocumentation, and other works of authorship, are “works made for hire” forpurposes of the Company’s rights under copyright laws.  I hereby assign to the Company any and allrights, title and interest I may have or acquire in such Inventions.  If in the course of my employment with theCompany, I incorporate into a Company product, process or machine a priorInvention owned by me or in which I have interest, the Company is herebygranted and shall have a nonexclusive, royalty-free, irrevocable, perpetual,sublicensable, worldwide license to make, have made, modify, use, market, selland distribute such prior Invention as part of or in connection with suchproduct, process or machine.

 

7.                                       Cooperation.  I agree to perform, during and after myemployment, all acts deemed necessary or desirable by the Company to permit andassist it, without charge to the Company but at the Company’s expense, infurther evidencing and perfecting the assignments made to the Company underthis Agreement and in obtaining, maintaining, defending and enforcing patents,patent rights, copyrights, trademark rights, trade secret rights or any otherrights in connection with such Inventions and improvements thereto in any andall countries.  Such acts may include,but are not limited to, execution of documents and assistance or cooperation inlegal proceedings.  I hereby irrevocablydesignate and appoint the Company and its duly authorized officers and agents,as my agents and attorneys-in-fact to act for and on my behalf and instead ofme, to execute and file any documents, applications or related findings and todo all other lawfully permitted acts to further the purposes set forth above inthis subsection (f), including, without limitation, the perfection ofassignment and prosecution and issuance of patents, patent applications,copyright applications and registrations, trademark applications andregistrations or other rights in connection with such Inventions andimprovements thereto with the same legal force and effect as if executed by me.

 

8.                                       MoralRights.  Any assignment of copyrighthereunder (and any ownership of a copyright as a work made for hire) includesall rights of paternity, integrity, disclosure and withdrawal and any otherrights that may be known as or referred to as “moral rights” (collectively **“Moral Rights”**).  To the extent such Moral Rights cannot be assigned underapplicable law and to the extent the following is allowed by the laws in thevarious countries where Moral Rights exist, I hereby waive such Moral Rightsand consent to any action of the Company that would violate such Moral Rightsin the absence of such consent.

 

9.                                       Listof Inventions.  I have attachedhereto as **Appendix B**, a completelist of all Inventions or improvements to which I claim ownership and that Idesire to remove from the operation of this Agreement, and I acknowledge andagree that such list is complete.  If nosuch list is attached to this Agreement, I represent that I have no suchInventions and improvements at the time of signing this Agreement.

 

10.                                 Non-Solicitation.  During the term of my employment and for one(1) year thereafter, I will not directly or indirectly (i) encourage, solicit,or attempt to solicit any employee of the Company to leave the Company for anyreason or in any interfere adversely with the relationship between any suchemployee and the

 

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Company; (ii) induce orattempt to induce any employee of the Company to work for, render services orprovide advice to or supply confidential business information or trade secretsof the Company to any person or entity other than the Company; or (iii) employ,or otherwise pay for services rendered by, any employee of the Company in anyother business enterprise.  As part ofthis restriction, I will not interview or provide any input to any third partyregarding any such person during the period in question.  However, this obligation shall not affectany responsibility I may have as an employee of the Company with respect to thebona fide hiring and firing of the Company personnel.

 

11.                                 Notification.  Prior to my submitting or disclosing forpossible publication or dissemination outside the Company any material preparedby me that incorporates information that concerns the Company’s business oranticipated research, I agree to deliver a copy of such material to an officerof the Company for his or her review. Within twenty (20) days following such submission, the Company agrees tonotify me in writing whether the Company believes such material contains anyProprietary Information or Inventions, and I agree to make such deletions andrevisions as are reasonably requested by the Company to protect its ProprietaryInformation and Inventions.  I furtheragree to obtain the written consent of the Company prior to any review of suchmaterial by persons outside the Company.

 

12.                                 NoCompetition During Employment.  Iagree that, during my employment with the Company, I will not provideconsulting services to or become an employee of, any other firm or personengaged in a business in any way competitive with the Company, or involved inthe design, development, marketing, sale or distribution of any networking orsoftware products, without first informing the Company of the existence of suchproposed relationship and obtaining the prior written consent of my manager andthe Human Resource Manager responsible for the organization in which I work.

 

13.                                 PastEmployment or Agreements.  Irepresent that my performance of all the terms of this Agreement and as anemployee of the Company does not and will not breach any agreement to keep inconfidence proprietary information, knowledge or data acquired by me inconfidence or in trust prior to my employment by the Company, and I will notdisclose to the Company, or induce the Company to use, any confidential orproprietary information or material belonging to any previous employers orothers.  I have not entered into, and Iagree I will not enter into, any agreement either written or oral in conflictherewith or in conflict with my employment with the Company.  I further agree to conform to the rules andregulations of the Company.

 

14.                                 Atwill Employment.  (Applicable in theU.S.)  If I am employed in the U.S., Iagree that I am employed on an “at-will” basis.  This means that I have the right to resign and the Company hasthe right to terminate my employment at any time for any reason, with orwithout cause.  This is the completeagreement between the Company and me on this term of my employment.  I further agree that this term can only bemodified by the Company President and he or she can only do so in a writingsigned and dated by him or her and me.

 

15.                                 Severability.  If one or more provisions of this Agreementare held to be unenforceable under applicable law, such provisions shall beexcluded from this Agreement and the balance of the Agreement shall beinterpreted as if such provision were so excluded and shall be enforceable inaccordance with its terms.

 

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16.                                 Consent.  I hereby authorize the Company to notify mynew employer about my rights and obligations under this Agreement following thetermination of my employment with the Company.

 

17.                                 EntireAgreement.  This Agreement setsforth the entire agreement and understanding between the Company and merelating to the subject matter herein and merges all prior discussions betweenus, including but not limited to any and all statements made by any officer,employee or representative of the Company regarding the Company’s financialcondition or future prospects. I understand and acknowledge that, except as setforth in this Agreement and in the offer letter from the Company to me (i) noother representation or inducement has been made to me, (ii) I have relied onmy own judgment and investigation in accepting my employment with the Company,and (iii) I have not relied on any representation or inducement made by anyofficer, employee or representative of the Company.  No modification of or amendment to this Agreement, nor any waiverof any rights under this Agreement, will be effective unless in a writingsigned by the President of the Company and me. I understand and agree that any subsequent change in my duties, salaryor compensation will not affect the validity or scope of this Agreement.

 

18.                                 Successors.  This Agreement shall be effective as of thefirst day of my employment with the Company and shall be binding upon me, myheirs, executor, assigns, and administrators, and shall inure to the benefit ofthe Company, its subsidiaries, successors and assigns.

 

19.                                 GoverningLaw.  Although I may work for ADCTelecommunications, Inc. outside of Minnesota USA, I understand and agree thatthis Agreement shall be interpreted and enforced in accordance with the laws ofthe State of Minnesota to the extent enforceable.

 

20.                                 DataTransfer.  I acknowledge and agree that personal data about me, to the extentnecessary for the administration and implementation of this Agreement and otheraspects of my employment with the Company, must and may be collected, stored,used, processed by or transmitted within ADC and to ADC’s administrativeagents.  By my signature below, I herebyconsent to the collection, transfer, storage, processing and use of suchpersonal data, for the above described purposes.

 

I HAVE READ THISAGREEMENT CAREFULLY AND I UNDERSTAND AND ACCEPT THE OBLIGATIONS WHICH ITIMPOSES UPON ME WITHOUT RESERVATION.  NOPROMISES OR REPRESENTATIONS HAVE BEEN MADE TO ME TO INDUCE ME TO SIGN THISAGREEMENT.  I SIGN THIS AGREEMENTVOLUNTARILY AND FREELY.

 

 
| Robert E. Switz               |                 |   |
|-------------------------------|----------------------|--------|
| Employee Name  (Please Print) |                 |
|                          |                 |
|                          |                 |
|                          | /s/ Robert E.  Switz |   | 8/29/03 |   |   |
|                          | Employee Signature   |   | Date |   |   |

 

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**Appendix A**

 

 

To the extent, if any, the laws of the following U.S. states are determined to apply to the enforcement of this agreement, written notice is hereby given as follows:

 

• California:

 

Sections 2870-2872 ofthe California Labor Code provide that this agreement does not apply, andwritten notification is hereby provided to me that this agreement does notapply, to an invention that the employee developed entirely on his or her owntime without using the employer’s equipment, supplies, facilities, or tradesecret information except for those inventions that either:

 

(1)                      Relate at the time of conception or reduction to practice of theinvention to the employer’s business, or actual or demonstrably anticipatedresearch or development of the employer; or

(2)                    Result from any work performed by theemployee for the employer.

 

• Illinois:

 

Illinois Statute765-1060 provides that this agreement does not apply, and written notificationis hereby provided to me that this agreement does not apply, to an inventionfor which no equipment, supplies, facility, or trade secret  information of the employer was used and which was developed entirely on theemployee’s own time,  unless  (a) the invention relates (i) to thebusiness of the employer, or (ii) to the employer’s actual or  demonstrably anticipated research  or development,  or  (b) the invention results from any work performed by the employee for theemployer.

 

• Kansas:

 

Kansas Statute44-130 provides that this agreement does not apply, and written notification ishereby provided to me that this agreement does not apply, to an invention forwhich no equipment, supplies, facility or trade secret information of theemployer was used and which was developed entirely on the employee’s own time,unless:

 

(1)                      The invention relates directly to the business of the employeror to the employer’s actual or demonstrably anticipated research ordevelopment; or

(2)                      the invention results from any work performed by the employeefor the employer.

 

• Minnesota:

 

Minnesota Statute 181.78 provides that this agreement does not apply, and written notification is hereby provided to me that this agreement does not apply, to an invention for which no equipment, supplies, facility or trade secret information of the employer was used and which was developed entirely on the employee’s own time, and (1) which does not relate (a) directly to the business of the employer or (b) to the employer’s actual or demonstrably anticipated research or development, or (2) which does not result from any work performed by the employee for the employer.

 

• Washington:

 

Washington Statutes 49.44.140 and 49.44.140 150 provide that this agreement does not apply, and written notification is hereby provided to me that this agreement does not apply, to an invention for which no equipment, supplies, facility, or trade secret information of the employer was used and which was developed entirely on the employee’s own time, unless (a) the invention relates (i) directly to the business of the employer, or (ii) to the employer’s

 

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actual or demonstrably anticipated research or development, or (b) the invention results from any work performed by the employee for the employer.

 

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**AppendixB**

 

 

1.                                       Thefollowing is a complete list of all Inventions or improvements relevant to thesubject matter of my employment by the Company that have been made ordiscovered or conceived or first reduced to practice by me or jointly withothers prior to my employment by the Company that I desire to remove from theoperation of the Company’s Proprietary Information and Inventions Agreement:

 

 

o                                    Noinventions or improvements.

 

 

o                                    Seebelow:  Any and all inventionsregarding:

 

 

o                                    Additionalsheets attached.

 

 

2.                                       Ipropose to bring to my employment the following materials and documents of aformer employer:

 

 

o                                    Nomaterials or documents.

 

 

o                                    Seebelow:

 

 
| Robert E. Switz     |   | 8/29/03 |   |
|---------------------|--------|---------|--------|
| Employee  Signature | Date   |

 

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**EXHIBIT C**

 

**CONTROLLING PROVISIONS**

 

 
| **Employment  Agreement Section** |   | **Exhibit B  Section** |   | **With  Respect To**              |   |
|-----------------------------------|--------|------------------------|--------|-----------------------------------|--------|
| 4.2                               |   | 2                      |   | Confidentiality                   |   |
|                              |   |                   |   |                              |   |
| 3.1.6                             |   | 3 (last sentence       | )      | Return of documents               |   |
|                              |   |                   |   |                              |   |
| 5.4                               |   | 10                     |   | Non-solicitation                  |   |
|                              |   |                   |   |                              |   |
| 4.2                               |   | 11                     |   | Prior notice to publication       |   |
|                              |   |                   |   |                              |   |
| 5.1                               |   | 12                     |   | Non-competition                   |   |
|                              |   |                   |   |                              |   |
| 8.11 and 8.12                     |   | 13                     |   | Prior conflicting agreements      |   |
|                              |   |                   |   |                              |   |
| 1.1                               |   | 14                     |   | At will employment vs. fixed term |   |
|                              |   |                   |   |                              |   |
| 8.6                               |   | 17                     |   | Entire agreement                  |   |

 

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