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AMENDMENT TO EMPLOYMENT
AGREEMENT
This Amendment,
effective as of December 28, 2008, is made by and between
Robert E. Switz (“Executive”) and ADC
Telecommunications, Inc. (the “Company”) and amends
that certain employment agreement, dated August 13, 2003,
between Executive and the Company (the “Employment
Agreement”). Except as so amended, the Employment Agreement
otherwise remains in full force and effect.
WHEREAS, the
parties previously entered into the Employment Agreement to provide
for Executive’s services as President and Chief Executive
Officer of the Company;
WHEREAS, Executive
and the Company further desire to amend Executive’s
Employment Agreement on the terms set forth herein to comply with
Section 409A of the Internal Revenue Code of 1986 (the
“Code”) (added by the American Jobs Creation Act of
2004).
NOW, THEREFORE, in
consideration of the representations, warranties, covenants and
agreements contained in this Agreement and other good and valuable
consideration, the sufficiency of which is hereby acknowledged, the
parties hereto agree as follows:
1. 409A
COMPLIANCE . Article III of the Employment Agreement is
amended by the addition of the following new
Section 3.4:
3.4. 409A
Compliance . Notwithstanding anything herein to the
contrary, this Agreement is intended to be interpreted and operated
so that the payment of the compensation and benefits set forth
herein either shall either be exempt from the requirements of
section 409A of the Internal Revenue Code or shall comply with the
requirements of such provision. Accordingly, the following rules
shall apply:
3.4.1.
Separation from Service . The term “termination
of employment” shall be interpreted consistent with the term
“separation from service” within the meaning of
Treasury regulation section §1.409A-1(h), but only to the
extent stri
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