Exhibit
10-a


 


EMPLOYMENT AGREEMENT


 


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


 


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


 


WHEREAS, EMPLOYER’s
offer letter to Employee, dated May 2, 2001, (“Offer Letter”) provides that
Employee will receive certain severance benefits if his employment is
terminated without cause and within 36 months of his Hire Date, provided he
signs an ADC waiver and release agreement; and


 


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


 


WHEREAS, the parties
wish to enter into an agreement for the duration of Employee’s employment with
EMPLOYER; and


 


WHEREAS, the parties
acknowledge and agree that the terms of this Agreement fulfill and satisfy the
obligations provided in the Offer Letter;


 


NOW
THEREFORE, in consideration of the mutual obligations
incurred and benefits obtained hereunder, the sufficiency of which is admitted,
EMPLOYER and Employee agree as follows:


 


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


 


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


 


3.        Position and Duties.


 


3.01         Service
with EMPLOYER.  Employee will report
solely to the Chief Executive Officer of EMPLOYER (“CEO”) and perform
transition responsibilities, special projects, and other assignments as
assigned from time to time by the CEO. 
Employee may, at his election, work from EMPLOYER’s offices in
Massachusetts.  Employee acknowledges
and agrees that, from time to time, Employee may be required by the CEO to
perform duties with respect to one or more EMPLOYER Affiliates.  The parties intend that Employee act in an
advisory and transitional role, and do not consider Employee to be an Officer
of EMPLOYER during the Term; provided, however, that Employee agrees during the
Term not to engage in any transactions involving EMPLOYER’s securities without
first obtaining review by EMPLOYER’s internal SEC counsel.


 

















 


3.02         Performance
of Duties.  Employee agrees to serve
EMPLOYER faithfully and to the best of Employee’s ability and, subject to the
provisions of Section 6.04(c), to devote Employee’s time, attention and efforts
to the business and affairs of EMPLOYER during the term of Employee’s
employment.  Employee hereby confirms
that Employee is under no contractual commitments inconsistent with Employee’s
obligations set forth in this Agreement and that, during the term of this
Agreement, Employee will not render or perform any services for any other
corporation, firm, entity or person which are inconsistent with the provisions
of this Agreement or which would otherwise impair Employee’s ability to perform
Employee’s duties hereunder.


 


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


 


4.        Compensation.


 


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


 


4.02         Participation
in Benefits.  During the Term of the
Agreement, Employee shall be entitled to participate in the employee benefits
offered generally by EMPLOYER to its employees, to the extent that Employee’s
grade level (23), pay level, position, tenure, salary, health, and other
qualifications make Employee eligible to participate.  Employee’s participation in such benefits shall be subject to the
terms of the applicable plans, as the same may be amended from time to
time.  EMPLOYER does not guarantee the
adoption or continuance of any particular employee benefit during Employee’s
employment, and nothing in this Agreement is intended to, or shall in any way
restrict the right of EMPLOYER, to amend, modify or terminate any of its
benefits during the term of Employee’s employment; provided, however, that
EMPLOYER agrees during the Term not to modify any of its benefit plans solely
in order to exclude Employee.


 


4.03         Executive
Perquisites.  During the Term of
this Agreement, Employee will be eligible to receive any executive perquisites,
including the executive perquisite allowance of $10,000 (annualized), that
EMPLOYER may from time to time deem are appropriate and administratively
feasible to provide to EMPLOYER executives who are similar in grade level, pay
level, position, title and duties to Employee. 
Employee understands that EMPLOYER may in its sole discretion modify or
terminate any executive perquisite offered to Employee; provided, however, that
EMPLOYER agrees during the Term not to modify any of its executive perquisites
solely in order to exclude Employee.


 


4.04         Stock
Options.  At all times, including
during the Term of the Agreement, any stock options granted to Employee are
governed by the terms and conditions of the applicable stock option plan and
stock option agreement.  Nothing in this
Agreement is intended to amend or modify any such plans or agreements.


 


4.05         Expenses.  In accordance with EMPLOYER’s normal
policies for expense reimbursement, EMPLOYER will reimburse Employee for all
reasonable and necessary expenses incurred by Employee in the performance of
Employee’s duties under this 


 


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


 


5.        Confidential
Information/Intellectual Property; Other Employment Policies.  As of May 15, 2001, Employee executed and
delivered to EMPLOYER the Employee Invention, Copyright and Trade Secret
Agreement, a copy of which is attached hereto as Exhibit A (the “Employee
Invention Agreement”), and Employee agrees to comply with the Employee
Invention Agreement.  Employee shall
also comply with all of the applicable policies generally in effect for
employees of EMPLOYER or any applicable EMPLOYER Affiliate for which Employee
performs services, including without limitation, EMPLOYER’s Code of Business
Conduct and EMPLOYER’s policies on trading in EMPLOYER’s securities, as the
same may be amended from time to time.


 


6.        Termination.


 


6.01     Termination Due to Employee’s Death or Total
Disability.  Employee’s
employment pursuant to this Agreement shall terminate automatically prior to
the expiration of the Term in the event of Employee’s death or Employee’s total
disability which results in Employee’s inability to perform the essential
functions of Employee’s position, with or without reasonable accommodation,
provided Employee has exhausted Employee’s entitlement to any applicable leave.


 


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


 


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


 


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


 


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


 


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


 


(e)           Any
intentional failure by Employee to comply with EMPLOYER’s Code of Business
Conduct or policies, or, as applicable, any EMPLOYER Affiliate; or


 


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


 


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


 


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


 


6.04     Termination Compensation.  Upon Employee’s termination by EMPLOYER
without cause on June 30, 2003 or upon Employee’s voluntary termination before
June 30, 2003 pursuant to Section 6.03, and only if Employee signs and does not
rescind a waiver and release of claims in the form attached hereto as Exhibit B,
then Employee shall be entitled to receive the following:


 


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


 


(b)                                 Payment by
EMPLOYER of the EMPLOYER’s contribution for medical and dental insurance
premiums for the two full months immediately following the month in which
Employee’s employment terminates, if Employee elects to continue coverage
through COBRA; and


 


(c)                                  “Key executive” transitional
outplacement assistance paid by ADC through Right Management, it being
understood that Employee may immediately utilize such assistance as of the date
this Agreement is fully executed.


 


After termination for any reason, Employee will also receive payment
for any unused PTO in accordance with EMPLOYER’s ordinary payroll
practices.  This section shall not
affect any other benefits for which Employee may be eligible pursuant to applicable
federal or state statute, if any.


 


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


 


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


 


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


 


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


 


7.        Nonsolicitation.


 


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


 


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


 


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


 


7.04         Notification
of Employment.  If at any time
during the Restricted Period Employee accepts new employment or becomes
affiliated with a third party, Employee shall immediately notify EMPLOYER of
the identity and business of the new employer or affiliation.  Employee hereby consents to EMPLOYER’s
notification to any such new employer or business venture of the terms of
Sections 5, 7 and Exhibit A of this Agreement.


 


7.05         Future
Employment.  EMPLOYER acknowledges
that the parties have not entered into a Noncompetition Agreement and the
parties have not sought to restrict 


 


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


 


8.        Change In
Control.  Employee will be eligible for
coverage under EMPLOYER’s Change In Control policy, according to the terms of
that policy, as the same may be amended from time to time.  EMPLOYER does not guarantee the continuance
of its Change In Control policy during Employee’s employment, and nothing in
this Agreement is intended to, or shall in any way restrict the right of
EMPLOYER, to amend, modify or terminate its Change In Control policy during the
term of Employee’s employment; provided, however, that EMPLOYER agrees during
the Term not to modify its Change In Control policy solely in order to exclude
Employee.


 


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


 


9.        Miscellaneous.


 


9.01         Governing
Law and Venue Selection.  This
Agreement is made under and shall be governed by and construed in accordance
with the laws of the State of Minnesota without regard to conflicts of laws
principles thereof, of any of the United States of America, or of any other
country, province or city.  The parties
agree that any litigation in any way relating to this Agreement or to Employee’s
employment by EMPLOYER, including but not limited to the termination of this
Agreement or Employee’s employment, will be venued in the State of Minnesota,
Hennepin County District Court, or the United States District Court for the
District of Minnesota.  Employee and
EMPLOYER hereby consent to the personal jurisdiction of these courts and waive
any objection that such venue is inconvenient or improper.


 


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


 


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


 


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9.04         Amendments.  No amendment or modification of this
Agreement shall be deemed effective unless made in writing and signed by
Employee and EMPLOYER.


 


9.05         No
Waiver.  No term or condition of
this Agreement shall be deemed to have been waived, nor shall there be any
estoppel to enforce any provisions of this Agreement, except by a statement in
writing signed by the party against whom enforcement of the waiver or estoppel
is sought.  Any written waiver shall not
be deemed a continuing waiver unless specifically stated, shall operate only as
to the specific term or condition waived, and shall not constitute a waiver of
such term or condition for the future or as to any act other than as
specifically set forth in the waiver.


 


9.06         Assignment.  This Agreement shall not be assignable, in
whole or in part, by any party without the written consent of the other party,
except that EMPLOYER may, without the consent of Employee, assign its rights
and obligations under this Agreement to any EMPLOYER Affiliate or to any
corporation, firm or other business entity with or into which EMPLOYER may
merge or consolidate, or to which EMPLOYER may sell or transfer all or
substantially all of its assets, or of which 50% or more of the equity
investment and of the voting control is owned, directly or indirectly, by, or
is under common ownership with, EMPLOYER. 
After any such assignment by EMPLOYER, EMPLOYER shall be discharged from
all further liability hereunder and such assignee shall thereafter be deemed to
be EMPLOYER for the purposes of all provisions of this Agreement including this
Section 9.06.


 


9.07         Injunctive
Relief.  Employee acknowledges and
agrees that the services to be rendered by Employee hereunder are of a special,
unique and extraordinary character, that it would be difficult to replace such
services and that any violation of Sections 5, 6.06 or 7 hereof or of the
Employee Invention Agreement would be highly injurious to EMPLOYER and/or to
any EMPLOYER Affiliate and that it would be extremely difficult to compensate
EMPLOYER and/or any EMPLOYER Affiliate fully for damages for any such
violation.  Accordingly, Employee
specifically agrees that EMPLOYER or any EMPLOYER Affiliate, as the case may
be, shall be entitled to temporary and permanent injunctive relief to enforce
the provisions of Sections 5, 6.06 and 7 hereof, and the Employee
Invention Agreement 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 EMPLOYER or any EMPLOYER
Affiliate to claim and recover damages, or to seek and obtain any other relief
available to it at law or in equity, in addition to injunctive relief.


 


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


 


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IN WITNESS WHEREOF, the
parties have executed this Agreement as of the date set forth in the first
paragraph.


 


	
   

  	
   

  	 

	
   

  	
  EMPLOYER

  	 

	
   

  	
   

  	 

	
   

  	
  By

  	
  /s/ Laura N. Owen

  	
   

  
	
   

  	
  Name:

  	
  Laura N. Owen

  	 

	
   

  	
  Title:

  	
  Vice President, Human
  Resources

  	 

	
   

  	
   

  	 

	
   

  	
  EMPLOYEE

  	 

	
   

  	
   

  	 

	
   

  	
   

  	
  /s/ William F. O’Brien

  	
   

  
	
   

  	
  William F. O’Brien

  	 

					



 


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Exhibit A


 


	
  

  	
  INVENTION, COPYRIGHT AND

  TRADE SECRET AGREEMENT

  
	
   

  	
   

  



 


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


 


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


 


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


 


C)  To the
extent, if any, that Minnesota law is determined to apply to the enforcement of
the agreement, Minnesota Statute 181.78 provides that the agreement does not
apply, and written notification is hereby given to me that this agreement does
not apply, to an invention for which no equipment, supplies, facilities or
trade secret information of the Company was used and which was developed
entirely on my own time, and


 


	
  i)

  	
   

  	
  which does not relate:

  
	
   

  	
   

  	
  a)

  	
  directly to the business of the Company, or

  
	
   

  	
   

  	
  b)

  	
  to the Company’s actual or demonstrably anticipated
  research or development, or

  
	
  ii)

  	
   

  	
  which does not result from any work performed by me
  for the Company.

  
	
   

  	
   

  	
   

  



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


 


 

















 


reissues and extensions thereof, and to assist and
cooperate with the Company or its representatives in any controversy or legal
proceeding relating to said inventions, improvements, discoveries and
copyrightable subject matter and the patents and registrations which may be
procured thereon.


 


3.                                       To hold in strictest confidence, and not
to use or disclose to any person, firm or corporation  either during the term of any employment or afterwards, without
the express written authorization of an officer of the Company, an
non-published information, manufacturing technique, process, formula, development
or experimental work, work in process, business, trade secret, or any other
secret or confidential matter relating to the products, customers, sales or
business of the company (or of a third party if disclosed to the Company by
such third party in confidence), except as such disclosure or use may be
required in connection with my work for the Company, and,


 


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


 


As a matter of record, I have set forth below a complete list and brief
description of all patented and unpatented inventions which I have made,
conceived and reduced to practice and all copyrightable subject matter created
by me prior to my employment by the Company and which are not to be included in
this agreement.  Except as so listed, I
will not assert any rights under any inventions, improvements, discoveries and
copyrightable subject matter as having been made or acquired by me prior to my
employed by the Company.  The Company
may at its discretion, require a detailed disclosure and/or working model or
the inventions to list.


 


 


This agreement shall supersede all similar previous agreements with the
Company.


 


	
  Dated this 15th day of May , 2001.

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/ William F. O’Brien

  	
   

  	
   

  	
  William F. O’Brien

  	
   

  
	
  Employee Signature

  	
  Please Print Full Name

  
	
   

  	
   

  
	
  WITNESS:

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/ Cori Wideman

  	
   

  	
   

  	
  HR Admin

  	
   

  
	
  Signature of Company Representative

  	
  Please Print Full Name

  
							



 


 


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Exhibit B


 


WAIVER AND


RELEASE AGREEMENT


 


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


 


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


 


NOW
THEREFORE, in consideration of the mutual covenants and agreements set forth herein
and other good and valuable consideration, the receipt and adequacy of which
are hereby acknowledged,


 


IT IS HEREBY
AGREED AS FOLLOWS:


 


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


 


2.        Consideration.
As consideration for Employee signing this Release, and providing employee has
not rescinded, ADC agrees to provide Employee with the payments described in
Section 6.04 of the Employment Agreement under the terms stated therein as full
and fair consideration for the covenants, representations, waivers and releases
set forth herein.


 


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


 


Employee understands and accepts that Employee’s
release of claims includes but is not limited to claims based upon:  Title VII of the Federal Civil Rights Act of
1964, as amended; the Americans with Disabilities Act; the Age Discrimination
in Employment Act of 1967, as amended; Sections 1981 through 1988 of Title 42
of the United States Code, as amended; The Family and Medical Leave Act; the
Equal Pay Act; the Fair Labor Standards Act; the Employee Retirement Income
Security Act; the Worker Adjustment Retraining Notification Act; the Minnesota
Human Rights Act; any and all federal, state, or local employment laws, rules,
regulations or public policies which apply to Employee in the state 


 


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of Employee’s legal residence and in any state where Employee has been
employed by ADC; and any other federal state or local statute, ordinance or
law.  Employee also understands that
Employee is giving up all other claims, including those grounded in contract or
tort theories or other common law, including but not limited to:  wrongful discharge, violation of Minn. Stat.
Section 176.82; breach of contract; tortious interference with contractual
relations; promissory estoppel; breach of the implied covenant of good faith
and fair dealing; breach of express or implied promise; breach of manuals or
other policies; breach of fiduciary duty; assault; battery; fraud; false
imprisonment; invasion of privacy; intentional or negligent misrepresentation;
defamation, including libel, slander, discharge defamation and self publication
defamation; discharge in violation of public policy; intentional or negligent
infliction of emotional distress; or any other theory, whether legal or equitable.  This release of claims further includes all
claims relating to or arising from, Employee’s right to purchase or the actual
purchase of shares of ADC stock, including without limitation, to any claims
for fraud, misrepresentation, breach of fiduciary duty, breach of duty under
applicable state corporate law, and securities fraud under any state or federal
law.


 


Employee further understands that Employee is
releasing, and does hereby release, any claims for damages, by charge or
otherwise, whether brought by Employee or on Employee’s behalf by any other
party, governmental or otherwise, and agrees not to institute any claims for
damages via administrative or legal proceedings against any of the Released
Parties.  Employee also waives and
releases any and all rights to money damages or other legal relief awarded by
any governmental agency related to any charge or other claim.


 


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


 


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


 


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


 


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


 


7.        No Admission. 
Nothing in this Release is intended to be, nor will be deemed to be, an
admission of liability by ADC that it has violated any state or federal
statute, local ordinance, or principle of common law, or that it has engaged in
any wrongdoing.  ADC expressly denies
any such liability.


 


4

















 


8.        Entire Agreement.  This Release, the Employment Agreement (and
the agreements referenced herein) constitute the entire agreement between the
parties with respect to Employee’s employment relationship with ADC.  The parties agree that there were no
inducements or representations leading to the execution of this Release or
agreements between the parties other than those contained in the Release.  Any modification of or addition to this Release
must be in a writing signed by Employee and ADC.


 


9.        Governing Law, Principles of Construction and Venue
Selection.  This Release is made under and shall be governed by and construed
in accordance with the laws of the State of Minnesota, without regard to
conflicts of laws principles thereof, or those of any other state of the United
States of America, or of any other country, province or city.  The parties agree that any litigation in any
way relating to this Release or to Employee’s employment by ADC, will be venued
in the State of Minnesota, Hennepin County District Court, or the United States
District Court for the District of Minnesota. 
Employee and ADC hereby consent to the personal jurisdiction of these
courts and waive any objection that such venue is inconvenient or improper.


 


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


 


11.       Severability. 
To the extent any provision of this Release shall be determined to be
invalid or unenforceable in any jurisdiction, such provision shall be deemed to
be deleted from this Release as to such jurisdiction only, and the validity and
enforceability of the remainder of such provision and of this Release shall be
unaffected.


 


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


 


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


 


Employee affirms that Employee understands Employee is being terminated
as part of a group layoff and employees having a similar grade level subject to
the group layoff are eligible for the consideration referenced in this
Release.  Employee acknowledges receipt
of the attached additional information reflecting job titles and ages of all
relevant individuals in the decisional unit selected for termination and
eligible for severance payments, and the ages of all individuals who were not
eligible or selected for termination.


 


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  William F. O’Brien

  	
  ADC Telecommunications, Inc.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
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  Date:

  	
   

  	
   

  	
  Date:

  	
   

  	
   

  
									



 


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