exv10w5






Exhibit 10.5




NOTICE TO U.S. TAX RESIDENTS:









VESTING OF THIS PERFORMANCE CASH UNIT AWARD WILL BE A TAXABLE EVENT AND WILL RESULT IN THE

RECOGNITION BY YOU OF ORDINARY INCOME IN AN AMOUNT EQUAL TO THE FAIR MARKET VALUE OF THE

UNITS THAT BECOME VESTED. ON SUCH DATE WHEN VESTING OCCURS AND AS A CONDITION TO THE CASH

PAID TO YOU, THE COMPANY MUST COLLECT ALL REQUIRED INCOME, SOCIAL AND OTHER PAYROLL TAX

WITHHOLDING FROM YOU BASED UPON SUCH FAIR MARKET VALUE.








NOTICE TO NON-U.S. RESIDENTS:









YOU MAY HAVE ADDITIONAL TERMS AND CONDITIONS FOR YOUR AWARD, WHICH ARE DESCRIBED IN

EXHIBIT B TO THIS AGREEMENT. IN ADDITION, IF YOU ARE A TAX RESIDENT OF A COUNTRY OUTSIDE THE

U.S., YOUR TAX CONSEQUENCES MAY BE DIFFERENT THAN DESCRIBED ABOVE. AS A CONDITION TO THE

CASH PAID TO YOU, THE COMPANY MUST COLLECT ALL REQUIRED INCOME, SOCIAL AND OTHER PAYROLL

TAX WITHHOLDING THAT MAY BE DUE BY REASON OF THE GRANT OR VESTING OF THIS AWARD.








ADC TELECOMMUNICATIONS, INC.

THREE-YEAR PERFORMANCE-BASED

CASH UNIT AWARD AGREEMENT



TO:        
           
         
          
           
         
         RSU#:     
             
            
              
  SAP EMPLOYEE ID#:        
                
                 



To encourage your continued employment with ADC Telecommunications, Inc. (the “Company”) or its
Affiliates, you have been granted this restricted cash unit award (the “Award”) pursuant to the
Company’s 2010 Global Stock Incentive Plan (the “Plan”). The Award represents the right to receive
a cash award subject to the fulfillment of the vesting conditions set forth in this agreement and
in Exhibit A to this agreement (collectively, this “Agreement”).



The terms of the Award are as set forth in this Agreement and in the Plan. The Plan is
incorporated into this Agreement by reference, which means that this Agreement is limited by and
subject to the express terms and provisions of the Plan. In the event of a conflict between the
terms of this Agreement and the terms of the Plan, the terms of the Plan shall control.
Capitalized terms that are not defined in this Agreement have the meanings given to them in the
Plan. The terms of the Award are:



1. Grant Date:                                          (the “Grant Date”)



2. Number of Restricted Cash Units Subject to this Award:                      (the “Target Award Number”).



3. Vesting Schedule: Subject to the other terms and conditions of this Agreement and the Plan, the
Award will vest, in accordance with, and to the extent provided in, Exhibit A, on                     ;
provided you have been continuously employed since the Grant Date by the Company or its Affiliates.
The day on which your Award is scheduled to vest pursuant to this Section 3 is referred to in this
Agreement as the “Scheduled Vest Date.”



4. Conversion of Restricted Cash Units and Payment. Subject to the other terms of the Award, upon
the Scheduled Vest Date, you shall receive, in accordance with the terms and provisions of the Plan
and this Agreement, a cash payment in U.S. dollars converted to your local currency at the then
current exchange ratio (if applicable) as published on the Scheduled Vesting Date in the Wall
Street Journal (U.S. Midwest Edition) and equivalent to the number of units provided in Exhibit A.
The Company will pay that cash (rounded down to the nearest whole USD or foreign equivalent) to you
as soon as administratively feasible following any vesting of the Award and your agreement to
satisfy any required tax withholding obligations. No fractional amounts shall be issued under this
Agreement. No Cash shall be paid upon vesting of the Award unless such issuance complies with all
relevant provisions of law. You understand that your participation in the Plan is conditioned on
the Company obtaining all necessary orders, decisions, rulings and approvals from the relevant
governmental regulatory authorities. The Company reserves the right to determine the manner in
which the cash is delivered to you, including but not limited to payment through local or corporate
payroll entities as designated by the Company.



5. Termination of Employment.




     (a) For all purposes of this Agreement, the term “Employment Termination Date” shall mean the
earlier of:




     (i) the date, as determined by the Company, that you are no longer actively employed by the
Company or an Affiliate of the Company, and in the case of an involuntarily termination, such
date shall not be extended by any notice period mandated under local law (e.g., active
employment would not include a period of “garden leave” or similar period pursuant to local
law); or




     (ii) the date, as determined by the Company, that your employer is no longer an Affiliate
of the Company.



     (b) Except as provided in Sections 10(a), (b), (c) and (d) below, if your Employment
Termination Date occurs before the Scheduled Vest Date, the entire Award as of your Employment
Termination Date shall be forfeited and immediately cancelled.



 









 





     (c) The Compensation Committee of the Company’s Board of Directors (the “Committee”) shall
have the exclusive discretion to determine the Employment Termination Date.


6. Workforce Protection. You understand that the Company has an important business interest in
preserving and retaining its relationships with its employees. In consideration of your employment
with the Company as well as the entry by the Company into this Agreement, during the term of your
employment and for one year thereafter, you promise that you will not directly or indirectly or in
cooperation with others:




     (a) Seek, encourage, solicit, or attempt to solicit any employee of the Company to leave the
Company for any reason or in any way interfere with the relationship between any such employee and
the Company;



     (b) Induce or attempt to induce any employee of the Company to accept employment with, work
for, render services or provide advice to or supply confidential business information or trade
secrets of the Company to any person or entity other than the Company; or



     (c) Employ, or otherwise pay for services rendered by, any employee of the Company in any
other business enterprise.



     As part of your obligations to the Company and without limiting the foregoing, you
specifically agree that for the one-year period after your employment with the Company terminates,
you will not interview, recommend for hire, identify or provide any input to any third party in
which you have an interest as an employee, officer, consultant, director or owner about a Company
employee where the purpose or outcome of such action by you is to recruit, provide a reference or
otherwise assist a Company employee to leave the Company and join the third party in which you have
an interest as described herein. You also acknowledge that your promises as contained herein are
not excused in circumstances where the Company employee initiates a discussion of this nature with
you. In that event, you agree to advise the Company employee of your obligations hereunder. You
further agree that during the one-year period after you leave the Company, you will inform any new
employer you may have of your obligations under this Agreement.


7. Right to Units. You shall not have any right in, to or with respect to any payment of cash
under the Award until the Award is settled by the payment of cash to you.



8. Tax Withholding.




     (a) Regardless of any action the Company or your employer (the “Employer”) takes with respect
to any or all income tax, social insurance, payroll tax or other tax-related withholding
(“Tax-Related Items”), you acknowledge that the ultimate liability for all Tax-Related Items
legally due by you is and remains your responsibility and that Company and/or your Employer: (1)
make no representations or undertakings regarding the treatment of any Tax-Related Items in
connection with any aspect of the Award, including the grant, vesting or payment of cash; and (2)
do not commit to structure the terms of the Award or any aspect of the Award to reduce or eliminate
your liability for Tax-Related Items.



     (b) You authorize the Company to withhold any Tax-Related Items in accordance with this
Agreement from any cash payment made to you as a result of vesting of the Award. If the
withholding obligations relating to Tax-Related Items are not satisfied by such withholding, you
authorize your Employer to withhold all such obligations from your wages or other cash compensation
that may be payable to you by your Employer.


9. Transfer of Award. Your rights under the Award may only be transferred in accordance with the
terms of the Plan.



10. Acceleration of Scheduled Vest Date.




     (a) In the event of a “Change in Control” of the Company both prior to the Scheduled Vest Date
and while you remain employed by the Company or any of its Affiliates, then the Award shall become
immediately vested with respect to the number of units equal to the Target Award Number on the
effective date of such Change in Control. For purposes of this Agreement, the following terms
shall have the following meanings:




     (1) “Change in Control” shall mean:




     (i) a change in control of the Company of a nature that would be required to be reported
in response to Item 6(e) of Schedule 14A of Regulation 14A promulgated under the U.S.
Securities Exchange Act of 1934, as amended (the “Exchange Act”), whether or not the Company
is then subject to such reporting requirement;




     (ii) the public announcement (which, for purposes of this definition, shall include,
without limitation, a report filed pursuant to Section 13(d) of the Exchange Act) by the
Company or any “person” (as such term is used in Sections 13(d) and 14(d) of the Exchange
Act) that such person has become the “beneficial owner” (as defined in Rule 13d-3 promulgated
under the Exchange Act), directly or indirectly, of securities of the Company representing
twenty percent (20%) or more of the combined voting power of the Company’s then outstanding
securities, determined in accordance with Rule 13d-3, excluding, however, any securities
acquired directly from the Company (other than an acquisition by virtue of the exercise of a
conversion privilege unless the security being so converted was itself acquired directly from
the Company); however, that for purposes of this clause the term “person” shall not include
the Company, any subsidiary of the Company or any employee benefit plan of the Company or of
any subsidiary of the Company or any entity holding shares of Common Stock organized,
appointed or established for, or pursuant to the terms of, any such plan;




     (iii) the Continuing Directors cease to constitute a majority of the Company’s Board of
Directors;




     (iv) consummation of a reorganization, merger or consolidation of, or a sale or other
disposition of all or substantially all of the assets of, the Company (a “Business
Combination”), in each case, unless, following such Business Combination, (A) all or
substantially all of the persons who were the beneficial owners of the Company’s outstanding
voting securities immediately prior to such Business



 









 







Combination beneficially own voting securities of the corporation resulting from such
Business Combination having more than fifty percent (50%) of the combined voting power of the
outstanding voting securities of such resulting Corporation and (B) at least a majority of
the members of the Board of Directors of the corporation resulting from such Business
Combination were Continuing Directors at the time of the action of the Board of Directors of
the Company approving such Business Combination;




     (v) approval by the shareholders of the Company of a complete liquidation or dissolution
of the Company; or




     (vi) the majority of the Continuing Directors determine in their sole and absolute
discretion that there has been a change in control of the Company; and




     (vii) the definition of “Change in Control” is subject to changes as may be determined
by the Committee as necessary to comply with the requirements of Section 409A of the Internal
Revenue Code, as added by the American Jobs Creation Act.




     (2) “Continuing Director” shall mean any person who is a member of the Board of Directors
of the Company, while such person is a member of the Board of Directors, who is not an Acquiring
Person (as defined below) or an Affiliate or Associate (as defined below) of an Acquiring
Person, or a representative of an Acquiring Person or of any such Affiliate or Associate, and
who (i) was a member of the Board of Directors on the date of this Agreement as first written
above or (ii) subsequently becomes a member of the Board of Directors, if such person’s initial
nomination for election or initial election to the Board of Directors is recommended or approved
by a majority of the Continuing Directors. For purposes of this subparagraph (2), “Acquiring
Person” shall mean any “person” (as such term is used in Sections 13(d) and 14(d) of the
Exchange Act) who or which, together with all Affiliates and Associates of such person, is the
“beneficial owner” (as defined in Rule 13d-3 promulgated under the Exchange Act), directly or
indirectly, of securities of the Company representing twenty percent (20%) or more of the
combined voting power of the Company’s then outstanding securities, but shall not include the
Company, any subsidiary of the Company or any employee benefit plan of the Company or of any
subsidiary of the Company or any entity holding shares of Common Stock organized, appointed or
established for, or pursuant to the terms of, any such plan; and “Affiliate” and “Associate”
shall have the respective meanings ascribed to such terms in Rule 12b-2 promulgated under the
Exchange Act.



     (b) If your employment with your Employer is terminated prior to the Scheduled Vest Date
because of your death or long-term disability, then on your Employment Termination Date this Award
will become immediately vested based on the following formula: (1) (i) a fraction the numerator of
which is the number of calendar days you were actively employed during the entire vesting period
and the denominator of which is 1,095 (the “Pro Rata Fraction”) multiplied by (ii) a number equal
to 75% of the Target Award Number, plus (2) (i) the Pro Rata Fraction multiplied by (ii) a number
equal to 25% of the Target Award Number. For example, if you are actively employed for 500 days
during the vesting period, and if your Target Award Number is 100 units, then you would become
vested in 45 units (i.e. ((500/1,095) x 100 x 0.75) + ((500/1,095) x 100 x 0.25) = 45.6, rounded
down to 45).



     On your Employment Termination Date, the portion of your Award that does not vest will be
forfeited and immediately cancelled. You hereby agree that any determination that your employment
has been terminated because of a long-term disability shall be subject to the written
acknowledgment and agreement of the Company’s legal department made in its sole discretion.



     (c) If your employment with your Employer is terminated prior to the Scheduled Vest Date
because of your Retirement, a Divestiture, a Reduction in Force, or an employment separation event
where you receive notice of opportunity to participate in an ADC Telecommunications, Inc. severance
plan, then a prorated portion of this Award will vest on the earlier to occur of (i) the Scheduled
Vest Date or (ii) a Change of Control. If a Change in Control does not occur prior to the
Scheduled Vest Date, then this Award will only vest if and to the extent the economic performance
criteria set forth on Exhibit A are deemed satisfied pursuant to and in accordance with the terms
of this Award. Subject to an interpolation of the results according to the vesting conditions set
forth on Exhibit A, the number of units subject to vesting will be calculated in the same manner as
in (b) above. For example, if: (i) you are actively employed for 500 days during the vesting
period; (ii) your Target Award is 100 units; (iii) the One-Year Adjusted EPS achieved is 92% of the
One-Year Adjusted EPS Target (or 7 percentage points above the One-Year Adjusted EPS Threshold of
85%); and (iv) the Three-Year Adjusted EPS achieved is 118% of (or 18 percentage points above) the
Three-Year Adjusted EPS Target (as each of those terms is defined in Exhibit A), then you would
become vested in 43 units. The calculation for determining your vested units is (500/1,095) x
[(75/2 + (7/15 x 75/2)) + (25 + (18/30 x 25))] = 43.4, rounded down to 43. On your Employment
Termination Date, the portion of your Award that does become subject to vesting will be forfeited
and cancelled.




     (1) “Retirement” shall mean the voluntary termination of your employment with your Employer
if: (a) you are employed in a country on your Employment Termination Date that on the Grant Date
was not a member of the European Union and (i) you are at least 55 years old, and (ii) your age
in years plus your years of service (as defined by the Company in its sole discretion for the
purposes of this Award) equals at least 65; or (b) you are employed in a country on your
Employment Termination Date that on the Grant Date was a member of the European Union and you
have at least 30 years of service (as defined by the Company in its sole discretion for the
purposes of this Award).




     (2) “Divestiture” shall mean the sale or transfer of the business that employs you by the
Company such that either (i) for any period of time immediately after the moment the divestiture
closes you are an Employee of such business but are no longer employed by the Company or an
Affiliate of the Company, or (ii) there has been an involuntary termination of your employment
with your employer both in connection with and prior to the closing of the sale or transfer of
such business; and




     (3) “Reduction in Force” means a termination occurring as part of a position elimination
where an offer is made to the impacted employee to participate in ADC’s general reduction in
force or redundancy program.



     (d) In the event of your Retirement, any vesting of your Award is conditioned upon you
complying with the following non-competition restrictions: For one year following the effective
date of your Retirement from the Company, you may not, without the Company’s prior written



 









 




consent, directly or indirectly, for yourself or any other person or entity, as agent,
employee, officer, director, consultant, owner, principal, partner or material shareholder, or in
any other individual or representative capacity: (i) engage in or participate in any activity that
competes, directly or indirectly, with any Company business, product or service that you engaged
in, participated in, or had confidential information (as described below) about during your
employment; or (ii) assist anyone in engaging in any of the activities which you are prohibited
from engaging in directly in your own capacity. You specifically agree and acknowledge that the
Company’s business competes on a global basis and that this restriction is reasonable and will
apply throughout the global locations where the Company conducts business. To the extent you and
the Company at any time agree to enter into separate agreements containing restrictions with
different or inconsistent terms than those herein, you and the Company acknowledge and agree that
such different or inconsistent terms shall not in any way affect or have relevance to the
restrictions contained herein. By accepting this Restricted Stock Unit Award Agreement, you agree
that the provisions of this non-competition restriction are reasonable and necessary to protect the
legitimate interests of the Company.



11. Further Acts. You agree to execute and deliver any additional documents and to perform any
other acts necessary to give full force and effect to the terms of this Agreement.



12. New, Substituted or Additional Securities. In the event of any stock dividend, stock split or
consolidation or any like capital adjustment of any of the outstanding securities of the Company,
all new, substituted or additional securities or other property to which you become entitled by
reason of the Award shall be subject to forfeiture to the Company with the same force and effect as
is the Award immediately prior to such event.



13. Severability. In the event that any provision of this Agreement is deemed to be invalid or
unenforceable, the remaining provisions shall nevertheless remain in full force and effect without
being impaired or invalidated in any way.



14. Governing Law. This Agreement shall be governed by and construed in accordance with the laws
of the State of Minnesota without regard to conflict of laws principles. By accepting this Award,
you agree to submit to the jurisdiction of any state or federal court sitting in Minneapolis,
Minnesota, in any action or proceeding arising out of or relating to this Agreement or the Award,
and agree that all claims in respect of the action or proceeding may be heard and determined in any
such court. You also agree not to bring any action or proceeding arising out of or relating to
this Agreement in any other court. You hereby waive any defense of inconvenient forum to the
maintenance of any action or proceeding so brought and waive any bond, surety, or other security
that might be required of the Company or any of its Affiliates with respect thereto. You further
agree that a final judgment in any action or proceeding so brought shall be conclusive and may be
enforced by suit on the judgment or in any other manner provided by law or in equity.



15. Limitation on Rights; No Right to Future Grants; Extraordinary Item. By entering into
this Agreement and accepting the Award, you acknowledge that: (a) the Plan is discretionary and may
be modified, suspended or terminated by the Company at any time as provided in the Plan; (b) the
grant of the Award is a one-time benefit and does not create any contractual or other right to
receive future grants of awards or benefits in lieu of awards; (c) all determinations with respect
to any such future grants, including, but not limited to, the times when awards will be granted,
the type and amount of benefits subject to each award, the award price, if any, and the time or
times when each award will be settled, will be at the sole discretion of the Company; (d) your
participation in the Plan is voluntary; (e) the value of the Award is an extraordinary item which
is outside the scope of your employment contract, if any; (f) the Award is not part of normal or
expected compensation for any purpose, including without limitation for calculating any severance,
resignation, termination, redundancy, end of service payments, bonuses, long-service awards,
pension or retirement benefits or similar payments; (g) the future value of the units subject to
the Award is unknown and cannot be predicted with certainty; (h) neither the Plan, the Award, the
issuance of the units nor the payment of Cash confers upon you any right to continue in the employ
of (or any other relationship with) the Company or any of its Affiliates, nor do they limit in any
respect the right of the Company or any of its Affiliates to terminate your employment or other
relationship with the Company or any of its Affiliates, as the case may be, at any time; (i) no
claim or entitlement to compensation or damages arises from termination of the Award which results
from the termination of your employment by the Company or your Employer (for any reason and whether
or not in breach of contract) or any diminution in value of the Award or units issued pursuant to
the Award and you irrevocably release the Company and its Affiliates from any such claim that may
arise; (j) you consent to the delivery by electronic means of any notices, documents or election
forms related to the Award, the Plan or future grants under the Plan, if any; and (k)
notwithstanding any terms or conditions of the Plan to the contrary, in the event of involuntary
termination of your employment (whether or not in breach of local labor laws), your right to
receive Awards under the Plan, if any, will terminate on the Employment Termination Date.



16. Confidential Information.




     (a) In further consideration of the grant of this Award, the Awardee specifically acknowledges
and agrees that Awardee is bound to protect the Company’s confidential information which includes
but is not limited to proprietary information, confidential data and any other representation of
Company knowledge, whether verbal, printed, written or electronically recorded or transmitted.
This includes confidential information concerning any technologies, concepts, engineering, sales
and financial details, customer names and information, pricing, business strategies and other
related or similar confidential data. Awardee acknowledges that the obligation to protect the
Company’s confidential information continues after Awardee leaves the Company, regardless of the
reason. Awardee agrees to refrain from giving future employers any confidential information
belonging to the Company. This obligation to preserve confidential information exists
independently of and in addition to any obligation to which the Awardee is subject under the terms
of the Company’s Invention, Copyright and Trade Secret Agreement, or other similar document.



     (b) The Awardee acknowledges that breach of this Section 16 would be highly injurious to the
Company, and the Company reserves its rights to pursue all available remedies, including but not
limited to equitable and injunctive relief and damages. The Awardee specifically agrees that the
Company shall be entitled to obtain temporary and permanent injunctive relief from a court of law
to enforce the provisions of this Section 16, and that such relief may be granted without the
necessity of proving actual damages and without necessity of posting any bond. This provision with
respect to injunctive relief shall not, however, diminish the right of the Company to claim and
recover damages or to seek and obtain any other relief available to it. The Awardee further
acknowledges that this Section 16 shall be enforceable by the Company even if no portion of this
Award becomes vested.



 









 




17. Data Privacy Consent. You hereby consent to the collection, use and transfer, in electronic or
other form, of your personal data as described in this Agreement by and among, as applicable, the
Company and its Affiliates for the exclusive purpose of implementing, administering and managing
your participation in the Plan.



You understand that the Company and its Affiliates hold certain personal information about you,
including, but not limited to, your name, home address and telephone number, date of birth, social
insurance number or other identification number, salary, nationality, job title, directorships held
in the Company or its Affiliates, and details of all Awards to you under the Plan, for the purpose
of implementing, administering and managing the Plan (“Data”). You understand that Data may be
transferred to any third parties assisting in the implementation, administration and management of
the Plan, that these recipients may be located in your country of residence or elsewhere, and that
the recipient’s country may have different data privacy laws and protections than your country of
residence. You may request a list with the names and addresses of any potential recipients of the
Data by contacting ADC’s Global Rewards – Stock Group. You authorize the recipients to receive,
possess, use, retain and transfer the Data, in electronic or other form, for the purposes of
implementing, administering and managing your participation in the Plan, including any requisite
transfer of such Data as may be required to a broker or other third party with whom you may elect
to deposit any cash acquired upon settlement of the Award. You understand that Data will be held
only as long as is necessary to implement, administer and manage your participation in the Plan and
that you may, at any time, view Data, request additional information about the storage and
processing of Data, require any necessary amendments to Data or refuse or withdraw the consents
herein, in any case without cost, by contacting in writing ADC’s Global Rewards – Stock Group. You
understand, however, that refusing or withdrawing your consent may affect your ability to
participate in the Plan. For more information on the consequences of your refusal to consent or
withdrawal of consent, you may contact ADC’s Global Rewards – Stock Group.




	 	 	 	 	 	 	 

	 

ADC TELECOMMUNICATIONS, INC.

	 	 
	 	 

Date