AMENDMENT TO EMPLOYMENT AGREEMENT
Exhibit 10.10
AMENDMENT TO EMPLOYMENT AGREEMENT
This Amendment, effective as of December 28, 2008, is made by and between Xxxxxx X. Xxxxx
(“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 strictly necessary to establish a time of
payment for the deferred compensation described in Section 3.2.3(a)(ii) (lump sum cash severance)
and Section 3.2.3(a)(iii) (subsidized COBRA coverage) that complies with section 409A of the
Internal Revenue Code, without altering any of the conditions of the arrangement that may cause the
Executive’s rights to such amounts to become unconditional (such as an involuntary termination of
employment without Cause or a voluntary termination of employment for Good Reason that entitles the
Executive to such separation benefits). Whether a “separation from service” has occurred depends
on whether the facts and circumstances indicate that the Company and the Executive reasonably
anticipated that no further services would be performed after a certain date or that the level of
bona fide services the Executive would perform after such date (whether as an employee or
independent contractor) would permanently decrease to no more than twenty percent (20%) of the
average level of bona
fide services performed (whether as an employee or an independent contractor) over the immediately
preceding thirty-six (36) month period).
3.4.1. Specified Employee. If on the date of the Executive’s Separation from Service,
the Executive is a “specified employee” as defined in Treasury regulation section 1.409-1(i) or
such other regulation or guidance issued under Section 409A of the Internal Revenue Code, then
payment of the lump sum cash severance described in Section 3.2.3(a)(ii) shall be delayed until the
earlier of the first day of the seventh month following the Executive’s Separation from Service or
the date of his death, at which time the Executive shall receive the lump sum cash severance
payment, together with interest, compounded annually, equal to the prime rate (as published in The
Wall Street Journal) in effect as of the Separation from Service. If the subsizided COBRA coverage
under Section 3.2.3(a)(iii) (or reimbursements for the cost of such coverage, as applicable) is
taxable to the Executive, then to the extent necessary to avoid a violation of section 409A of the
Internal Revenue Code, the Executive shall pay for such coverage for the first six months following
his Separation from Service and shall be reimbursed for such payments on the first day of the
seventh month following his Separation from Service, together with interest, compounded annually,
equal to the prime rate (as published in The Wall Street Journal) in effect as of the Separation
from Service.
IN WITNESS WHEREOF, this Amendment to Employment Agreement has been signed by the parties
hereto on the date set forth below.
ADC Telecommunications, Inc.
/s/
Xxxxx X. Xxxx
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/s/ Xxxxxx X. Xxxxx
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Vice
President, Chief Administrative Officer |
