EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT is made this day of June, 1997, by and between
Joseph H. Gifford, a resident of the Commonwealth of Pennsylvania (the
"Employee"), and InterDigital Communications Corporation, a corporation
organized and existing under the laws of the Commonwealth of Pennsylvania (the
"Company").
WHEREAS, the Company is engaged in the business of developing and marketing
certain types of advanced digital wireless telecommunications systems using
proprietary technologies for voice and data communications, as more particularly
described in the Company's Form 10-K as filed from time to time, and the
licensing of wireless digital telephone technology (the "Business").
WHEREAS, Employee serves in the position of Executive Vice President,
Business Development of the Company (Employee's "Position") .
WHEREAS, the Company and Employee desire to enter into arrangements
covering the termination of Employee's employment with the Company and the
treatment of confidential information by Employee, among other things.
NOW, THEREFORE, in consideration of the mutual covenants and obligations
contained herein, and intending to be legally bound, the parties, subject to the
terms and conditions set forth herein, agree as follows:
1. Employment, Duties and Term. Employee shall serve the Company faithfully
and to the best of his ability and shall devote his full time, attention, skill
and efforts to the performance of the duties required by or appropriate for his
Position until his employment hereunder is terminated pursuant to the provisions
of Section 8 hereto (the "Term"). During the term of his employment, Employee
agrees to assume such duties and responsibilities as may be customarily incident
to his Position, and as may be reasonably assigned to Employee from time to time
by the President of the Company. Employee shall report to the President of the
Company.
2. Other Business Activities. During the Term, Employee will not, without
the prior written consent of the Company, directly or indirectly engage in any
other business activities or pursuits whatsoever, except activities in
connection with any charitable or civic activities, personal investments and
serving as an executor, trustee or in other similar fiduciary capacity;
provided, however, that such activities do not interfere with his performance of
his responsibilities and obligations pursuant to this Agreement.
3. Compensation. The Company shall pay Employee, and Employee hereby agrees
to accept, as compensation for all services rendered hereunder and for
Employee's covenant not to compete as provided for in Section 7 hereof, a base
salary at the annual rate of One Hundred and Fifty Thousand Dollars (subject to
any increase from time to time, the "Base Salary"). The Base Salary shall be
inclusive of all applicable income, social security and other taxes and charges
which are required by law to be withheld by the Company or which are requested
to be withheld by Employee, and which shall be withheld and paid in accordance
with the Company's normal payroll practice for its similarly situated employees
from time to time in effect. In addition to the Base Salary, Employee shall be
eligible to participate in whatever bonus plan, if any, the Company shall adopt
for its executive officers, including without limitation, the Executive Bonus
Plan the Company currently intends to develop and implement with the assistance
of Ernst & Young. Notwithstanding the foregoing two sentences, the Company shall
be under no obligation to develop and/or implement any bonus plan, including
without limitation, the aforesaid Executive Bonus Plan, or to continue any such
plan, if adopted.
4. Benefits and Expenses. Employee shall be entitled to receive those
employee benefits (including expense reimbursement) as shall be provided to
similarly situated executive employees of the Company ("Benefits").
5. Confidentiality. Employee recognizes and acknowledges that the
Proprietary Information (as hereinafter defined) is a valuable, special and
unique asset of the Business of the Company. As a result, both during the Term
and thereafter, Employee shall not, without the prior written consent of the
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Company, for any reason either directly or indirectly divulge to any third-party
or use for his own benefit, or for any purpose other than the exclusive benefit
of the Company, any confidential, proprietary, business and technical
information or trade secrets of the Company or of any subsidiary or affiliate of
the Company ("Proprietary Information") revealed, obtained or developed in the
course of his employment with the Company. Such Proprietary Information shall
include, but shall not be limited to, the intangible personal property described
in Section 7(b) hereof, any information relating to methods of production and
manufacture, research, computer codes or instructions (including source and
object code listings, program logic algorithms, subroutines, modules or other
subparts of computer programs and related documentation, including program
notation), computer processing systems and techniques, concepts, layouts,
flowcharts, specifications, know-how, any associated user or service manuals or
other like textual materials (including any other data and materials used in
performing the Employee's duties), all computer inputs and outputs (regardless
of the media on which stored or located), hardware and software configurations,
designs, architecture, interfaces, plans, sketches, blueprints, and any other
materials prepared by the Employee in the course of, relating to or arising out
of his employment by the Company, or prepared by any other Company employee,
representative, or contractor for the Company, or its customers (including
information and other material relating to the ASIC), costs, business studies,
business procedures, finances, marketing data, methods, plans and efforts, the
identities of licensees, strategic partners, customers, contractors and
suppliers and prospective licensees, strategic partners, customers, contractors
and suppliers, the terms of contracts and agreements with licensees, strategic
partners, customers, contractors and suppliers, the Company's relationship with
actual and prospective licensees, strategic partners, customers, contractors and
suppliers and the needs and requirements of, and the Company's course of dealing
with, any such actual or prospective licensees, strategic partners, customers,
contractors and suppliers, personnel information, customer and vendor credit
information, and any other materials that have not been made available to the
general public, provided, that nothing herein contained shall restrict
Employee's ability to make such disclosures during the course of his employment
as may be necessary or appropriate to the effective and efficient discharge of
the duties required by or appropriate for his Position or as such disclosures
may be required by law; and
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further provided, that nothing herein contained shall restrict Employee from
divulging or using for his own benefit or for any other purpose any Proprietary
Information that is readily available to the general public so long as such
information did not become available to the general public as a direct or
indirect result of Employee's breach of this Section 5. Failure by the Company
to mark any of the Proprietary Information as confidential or proprietary shall
not affect its status as Proprietary Information under the terms of this
Agreement.
6. Property.
(a) All right, title and interest in and to Proprietary Information shall
be and remain the sole and exclusive property of the Company. During the Term,
Employee shall not remove from the Company's offices or premises any documents,
records, notebooks, files, correspondence, reports, memoranda or similar
materials of or containing Proprietary Information, or other materials or
property of any kind belonging to the Company unless necessary or appropriate in
accordance with the duties and responsibilities required by or appropriate for
his Position and, in the event that such materials or property are removed, all
of the foregoing shall be returned to their proper files or places of
safekeeping as promptly as possible after the removal shall serve its specific
purpose. Employee shall not make, retain, remove and/or distribute any copies of
any of the foregoing for any reason whatsoever except as may be necessary in the
discharge of his assigned duties and shall not divulge to any third person the
nature of and/or contents of any of the foregoing or of any other oral or
written information to which he may have access or with which for any reason he
may become familiar, except as disclosure shall be necessary in the performance
of his duties; and upon the termination of his employment with the Company, he
shall leave with or return to the Company all originals and copies of the
foregoing then in his possession, whether prepared by Employee or by others.
(b) (i) Employee agrees that all right, title and interest in and to any
innovations, designs, systems, analyses, ideas for marketing programs, and all
copyrights, patents, trademarks and trade names, or similar intangible personal
property which have been or are developed or created in whole or in part by
Employee (1) at any time and at any place while the
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Employee is employed by Company and which, in the case of any or all of the
foregoing, are related to and used in connection with the Business of the
Company, (2) as a result of tasks assigned to Employee by the Company, or (3)
from the use of premises or personal property (whether tangible or intangible)
owned, leased or contracted for by the Company (collectively, the "Intellectual
Property"), shall be and remain forever the sole and exclusive property of the
Company. The Employee shall promptly disclose to the Company all Intellectual
Property, and the Employee shall have no claim for additional compensation for
the Intellectual Property.
(ii) The Employee acknowledges that all the Intellectual Property that is
copyrightable shall be considered a work made for hire under United States
Copyright Law. To the extent that any copyrightable Intellectual Property may
not be considered a work made for hire under the applicable provisions of the
United States Copyright Law, or to the extent that, notwithstanding the
foregoing provisions, the Employee may retain an interest in any Intellectual
Property that is not copyrightable, the Employee hereby irrevocably assigns and
transfers to the Company any and all right, title, or interest that the Employee
may have in the Intellectual Property under copyright, patent, trade secret and
trademark law, in perpetuity or for the longest period otherwise permitted by
law, without the necessity of further consideration. The Company shall be
entitled to obtain and hold in its own name all copyrights, patents, trade
secrets, and trademarks with respect thereto.
(iii) Employee further agrees to reveal promptly all information relating
to the same to an appropriate officer of the Company and to cooperate with the
Company and execute such documents as may be necessary or appropriate (1) in the
event that the Company desires to seek copyright, patent or trademark
protection, or other analogous protection, thereafter relating to the
Intellectual Property, and when such protection is obtained, to renew and
restore the same, or (2) to defend any opposition proceedings in respect of
obtaining and maintaining such copyright, patent or trademark protection, or
other analogous protection.
(iv) In the event the Company is unable after reasonable effort to secure
Employee's signature on any of the documents referenced in Section 6(b)(iii)
hereof, whether because
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of Employee's physical or mental incapacity or for any other reason whatsoever,
Employee hereby irrevocably designates and appoints the Company and its duly
authorized officers and agents as Employee's agent and attorney-in-fact, to act
for and in his behalf and stead to execute and file any such documents and to do
all other lawfully permitted acts to further the prosecution and issuance of any
such copyright, patent or trademark protection, or other analogous protection,
with the same legal force and effect as if executed by Employee.
7. Covenant Not to Compete. The Employee shall not, during the Term and
thereafter for the Restricted Period (as defined below), do any of the
following, directly or indirectly, without the prior written consent of the
Company:
(a) engage or participate in any product business directly competitive
with the Company's Business, or the business of any of the Company's
subsidiaries or affiliates, as same are conducted during the Term with
respect to any period during the Term, or upon the termination of
Employee's employment hereunder with respect to any period thereafter;
(b) become interested in (as owner, stockholder, lender, partner,
co-venturer, director, officer, employee, agent, consultant or otherwise)
any person, firm, corporation, association or other entity engaged in any
business that is directly competitive with the Business of the Company or
of any subsidiary or affiliate of the Company as conducted during the Term
with respect to any period during the Term, or upon the termination of
Employee's employment hereunder with respect to any period thereafter, or
become interested in (as owner, stockholder, lender, partner, co-venturer,
director, officer, employee, agent, consultant or otherwise) any portion of
the business of any person, firm, corporation, association or other entity
where such portion of such business is directly competitive with the
business of the Company or of any subsidiary or affiliate of the Company as
conducted during the Term with respect to any period during the Term, or
upon termination of Employee's employment hereunder with respect to any
period thereafter. Notwithstanding the foregoing, Employee may hold not
more than one percent (1%) of the outstanding securities of any class of
any publicly-traded securities of a company that is engaged in activities
referenced in Section 7(a) hereof;
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(c) influence or attempt to influence any licensee, strategic partner,
supplier, or customer of the Company or potential licensee, strategic
partner, supplier or customer of the Company to terminate or modify any
written or oral agreement or course of dealing with the Company; or
(d) influence or attempt to influence any person to either (i)
terminate or modify his employment, consulting, agency, distributorship or
other arrangement with the Company, or (ii) employ or retain, or arrange to
have any other person or entity employ or retain, any person who has been
employed or retained by the Company as an employee, consultant, agent or
distributor of the Company at any time during the twelve (12) month period
immediately preceding the termination of Employee's employment hereunder.
For purposes of this Section 7, the Restricted Period shall constitute (as
applicable) (i) the period, if any, that Employee shall receive severance as set
forth in Section 8 hereof, (ii) in the event Employee's employment hereunder is
terminated for cause pursuant to Section 8 hereof, a period of one (1) year
following such termination, or (iii) in the event that Employee terminates this
Agreement without Good Reason, so long as the Company voluntarily pays severance
to Employee (which the Company shall be under no obligation to do), for the
period that Employee shall receive such severance, but in no event for a period
longer than one (1) year.
8. Termination. Employee's employment hereunder may be terminated during
the Term upon the occurrence of any one of the events described in this Section
8. Upon termination, and in consideration of the restrictions contained in
Sections 5, 6 and 7 herein, Employee shall be entitled (but shall only be
entitled) to the compensation and benefits as described in this Section 8.
8.1. Termination for Disability.
(a) In the event of a long-term disability of the Employee (as
such term is defined in the Company's Long-Term Disability Plan) such
that the Employee is not otherwise qualified to perform the essential
functions of the job with or without reasonable accommodation
("Disability"), Employee's employment hereunder may be terminated by
the Company.
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(b) In the event of a termination of Employee's employment
hereunder pursuant to Section 8.1(a), Employee will be entitled to
receive all accrued and unpaid (as of the date of such termination)
Base Salary and Benefits and other forms of compensation and bonus
payable or provided in accordance with the terms of any then existing
compensation, bonus or benefit plan or arrangement ("Other
Compensation"), including payments prescribed under any disability or
life insurance plan or arrangement in which Employee is a participant
or to which Employee is a party as an employee of the Company. In
addition, for a period of one year following such termination,
Employee shall be entitled to receive (i) regular installments of Base
Salary at the rate in effect at the time of such termination, such
amount being reduced by the amount of payments received by the
Employee with respect to this period pursuant to any Social Security
entitlement or any long term disability or any other employee benefit
plan, policy or program maintained to provide benefits in the event of
disability in which the Employee was entitled to participate at the
time of termination under Section 8.1(a), and (ii) medical and dental
coverage on terms and conditions comparable to those most recently
provided to the Employee pursuant to this Agreement, to the extent
such coverage is not provided under other Company policies, plans or
programs relating to Disability. Except as specifically set forth in
this Section 8.1(b), the Company shall have no liability or obligation
to Employee for compensation or benefits hereunder by reason of such
termination.
(c) For purposes of this Section 8.1, the determination as to
whether Employee has a long-term disability (as such term is defined
in the Company's Long-Term Disability Plan) shall be made by a
licensed physician selected by the Company (and reasonably acceptable
to Employee) and shall be based upon a full physical examination and
good faith opinion by such physician.
8.2. Termination by Death. In the event that Employee dies during the
Term, Employee's employment hereunder shall be terminated thereby and the
Company shall pay to Employee's executors, legal representatives or
administrators an amount equal to the accrued and unpaid portion of his
Base Salary, Benefits and Other Compensation up through the date on which
he dies. In addition, subject to the approval of the Compensation and Stock
Option Committee of the Board of Directors (or the Board itself), all
unvested options previously granted to Employee will
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vest on the date of Employee's death. Except as specifically set forth in
this Section 8.2, the Company shall have no liability or obligation
hereunder to Employee's executors, legal representatives, administrators,
heirs or assigns or any other person claiming under or through him by
reason of Employee's death, except that Employee's executors, legal
representatives or administrators will be entitled to receive the payment
prescribed under any death or disability benefits plan in which he is a
participant as an employee of the Company, and to exercise any rights
afforded under any compensation or benefit plan then in effect.
8.3. Termination for Cause.
(a) The Company may terminate Employee's employment hereunder at
any time for "cause" upon written notice to Employee. For purposes of
this Agreement, "cause" shall mean: (i) any material breach by
Employee of any of his obligations under this Agreement, which breach
is not cured within thirty (30) days after Employee's receipt of
written notification from the Company of such breach, (ii) other
conduct of Employee involving any type of willful misconduct with
respect to the Company, including without limitation fraud,
embezzlement, theft or proven dishonesty in the course of his
employment or conviction of a felony.
(b) In the event of a termination of Employee's employment
hereunder pursuant to Section 8.3(a), Employee shall be entitled to
receive all accrued but unpaid (as of the effective date of such
termination) Base Salary, Benefits and Other Compensation. All Base
Salary, Benefits and Other Compensation shall cease at the time of
such termination, subject to the terms of any benefit or compensation
plan then in force and applicable to Employee. Except as specifically
set forth in this Section 8.3, the Company shall have no liability or
obligation hereunder, including without limitation for any severance
whatsoever, by reason of such termination.
8.4. Termination Without Cause.
(a) The Company may terminate Employee's employment hereunder at
any time, for any reason, without cause, effective upon the date
designated by the Company upon thirty (30) days prior written notice
to Employee. Company may elect to have
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Employee remain absent from the workplace and cease Company business
during all or part of such thirty (30) day period.
(b) In the event of a termination of Employee's employment
hereunder pursuant to Section 8.4(a) (including by the Company's
delivery of written notice not to renew the Term in accordance with
the provisions of Section 1 hereof in the event such termination is
not for cause), Employee shall be entitled to receive all accrued but
unpaid (as of the effective date of such termination) Base Salary,
Benefits and Other Compensation. In addition, Employee shall be
entitled to receive (i) severance in an amount equal to Employee's
Base Salary, and (ii) medical and dental coverage on terms and
conditions comparable to those most recently provided to the Employee
pursuant to this Agreement, both for the period of one year commencing
upon the date of such termination. Such severance shall be inclusive
of all applicable income, social security and other taxes and charges
which are required by law to be withheld by the Company and shall be
withheld and paid in accordance with the Company's normal payroll
practice for its executives from time to time in effect. All Base
Salary, Benefits and Bonuses shall cease at the time of such
termination, subject to the terms of any benefit or compensation plan
then in force and applicable to Employee. Except as specifically set
forth in this Section 8.4, the Company shall have no liability or
obligation hereunder by reason of such termination.
8.5. Termination by Employee.
(a) Employee may terminate Employee's employment hereunder at any
time, for Good Reason or without Good Reason, effective upon the date
designated by Employee in written notice of the termination of his
employment hereunder pursuant to this Section 8.5(a); provided that,
such date shall be at least thirty (30) days after the date of such
notice. For purposes of this Agreement, Good Reason shall mean: (i)
the failure by the Company to pay in a timely manner Base Salary or
any other material form of compensation or material benefit to be paid
or provided to Employee hereunder, or (ii) any material breach, not
encompassed within clause (i) of this Section 8.5(a), of the
obligations of the Company under this Agreement which breach is not
cured within thirty (30) days after the Company's receipt of written
notification from the Employee of such breach.
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(b) In the event of a termination of Employee's employment
hereunder pursuant to Section 8.5(a) hereof, Employee shall be
entitled to receive all accrued but unpaid (as of the effective date
of such termination) Base Salary, Benefits and Other Compensation. In
addition, solely if such termination is for Good Reason, Employee
shall be entitled to receive (i) severance in an amount equal to the
Employee's Base Salary, and (ii) medical and dental coverage on terms
and conditions comparable to those most recently provided to the
Employee pursuant to this Agreement, both for the period of one year
commencing upon the date of such termination. Such severance shall be
payable as set forth in Section 8.4(b) hereof. Except as specifically
set forth in this Section 8.5(b), all Base Salary, Benefits and Other
Compensation shall cease at the time of such termination, subject to
the terms of any benefit or compensation plan then in force and
applicable to Employee. Except as specifically set forth in this
Section 8.5, the Company shall have no liability or obligation
hereunder by reason of such termination.
8.6. Change of Control.
(a) If there is a Change of Control during the Term, and
Employee's employment with the Company hereunder is terminated within
one (1) year following such Change of Control by the Company (except
for cause) or by Employee (whether or not for Good Reason), Employee
shall be entitled to receive all accrued but unpaid (as of the
effective date of such termination) Base Salary, Benefits and Other
Compensation. In addition, (i) Employee shall be entitled to receive,
on the date of such termination, an amount equal to two years' worth
of Employee's Base Salary, and (ii) all stock options granted to
Employee by Company which pursuant to the terms of the applicable
stock option plan vest upon a Change in Control (e.g., Section 17(b)
of the 1995 Stock Option Plan for Employees and Outside Directors)
shall vest. Except as specifically set forth in this Section 8.6, all
Base Salary, Benefits and Other Compensation shall cease at the time
of such termination, subject to the terms of any benefit or
compensation plans then in force and applicable to Employee, and the
Company shall have no liability or obligation hereunder by reason of
such termination.
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(b) For purposes of this Section 8.6, a "Change of Control" means
the acquisition (including by merger or consolidation, or by the
issuance by the Company of its securities) by one or more persons in
one transaction or a series of related transactions, of more than
fifty percent (50%) of the voting power represented by the outstanding
stock of the Company on the date hereof. For these purposes, "Person"
means an individual, partnership, corporation, joint venture,
association, trust, unincorporated association, other entity or
association.
8.7. Termination for Absenteeism
(a) Regular attendance at work or in conducting work is an
essential element of Employee's job. Without limiting the Company's
right to terminate Employee pursuant to Section 8.1 or 8.3 herein, in
the event that Employee is absent for more than one hundred and fifty
(150) days within any twelve (12) month period, Employee's employment
hereunder may be terminated by Company.
(b) In the event of a termination of Employee's employment
hereunder pursuant to Section 8.7(a), Employee will be entitled to
receive all accrued and unpaid (as of the date of such termination)
Base Salary and Benefits and other forms of compensation and bonus
payable or provided in accordance with the terms of any then existing
compensation, bonus or benefit plan or arrangement ("Other
Compensation"), including payments prescribed under any disability or
life insurance plan or arrangement in which Employee is a participant
or to which Employee is a party as an employee of the Company. In
addition, for a period of one year following such termination,
Employee shall be entitled to receive (i) regular installments of Base
Salary at the rate in effect at the time of such termination, such
amount being reduced by the amount of payments received by the
Employee with respect to this period pursuant to any Social Security
entitlement or any long term disability or any other employee benefit
plan, policy or program maintained to provide benefits in the event of
disability in which the Employee was entitled to participate at the
time of termination under Section 8.7(a), and (ii) medical and dental
coverage on terms and conditions comparable to those most recently
provided to the Employee pursuant to this Agreement, to the extent
such coverage is not provided under other Company policies, plans or
programs relating to Disability. Except as specifically set forth in
this
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Section 8.7(b), the Company shall have no liability or obligation to
Employee for compensation or benefits hereunder by reason of such
termination.
9. Other Agreements. Employee represents and warrants to the Company that:
(a) There are no restrictions, agreements or understandings whatsoever
to which Employee is a party which would prevent or make unlawful
Employee's execution of this Agreement or Employee's employment hereunder,
or which are or would be inconsistent or in conflict with this Agreement or
Employee's employment hereunder, or would prevent, limit or impair in any
way the performance by Employee of his obligations hereunder,
(b) Employee's execution of this Agreement and Employee's employment
hereunder shall not constitute a breach of any contract, agreement or
understanding, oral or written, to which Employee is a party or by which
Employee is bound, and
(c) Employee is free to execute this Agreement and to enter into the
employ of the Company pursuant to the provisions set forth herein.
(d) Employee shall disclose the existence and terms of the restrictive
covenants set forth in this Agreement to any employer that the Employee may
work for during the term of this Agreement (which employment is not hereby
authorized) or after the termination of the Employee's employment at the
Company.
10. Survival of Provisions. The provisions of this Agreement set forth in
Sections 5, 6, 7, 8 (solely with respect to the payment obligations of the
Company to Employee, if any, set forth therein), 9 and 20 hereof shall survive
the termination of Employee's employment hereunder. If for any reason Employee
shall continue to be employed by the Company following the termination of
Employee's employment hereunder, Employee shall have no right to receive any
severance or other payments hereunder until Employee ceases to be employed by
the Company, whereupon Employee's right to severance or other payments, if any,
shall be governed by the provisions of Section 8 hereof with respect to the
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particular circumstances involved in the Employee's termination of employment.
11. Successors and Assigns. This Agreement shall inure to the benefit of
and be binding upon the Company and Employee and their respective successors,
executors, administrators, heirs and/or permitted assigns; provided, however,
that neither Employee nor the Company may make any assignments of this Agreement
or any interest herein, by operation of law or otherwise, without the prior
written consent of the other parties hereto.
12. Employee Benefits. This Agreement shall not be construed to be in lieu
or to the exclusion of any other rights, benefits and privileges to which
Employee may be entitled as an employee of the Company under any retirement,
pension, profit-sharing, insurance, hospital or other plans or benefits which
may now be in effect or which may hereafter be adopted.
13. Notice. Any notice or communication required or permitted under this
Agreement shall be made in writing and sent by certified or registered mail,
return receipt requested, by hand delivery, or by recognized overnight courier,
addressed as follows:
If to Employee:
Joseph H. Gifford
c/o InterDigital Communications Corporation
781 Third Avenue
King of Prussia, Pennsylvania 19406
If to Company:
InterDigital Communications Corporation
781 Third Avenue
King of Prussia, Pennsylvania 19406
Attn: Harry Campagna, Chairman
with a copy to:
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Pepper, Hamilton & Scheetz
3000 Two Logan Square
18th and Arch Streets
Philadelphia, PA 19103
Barry M. Abelson, Esquire
or to such other address as either party may from time to time duly specify by
notice given to the other party in the manner specified above.
14. Entire Agreement; Amendments. This Agreement and contains the entire
agreement and understanding of the parties hereto relating to the subject matter
hereof, and merges and supersedes all prior and contemporaneous discussions,
agreements and understandings of every nature between the parties hereto
relating to the employment of Employee with the Company. This Agreement may not
be changed or modified, except by an Agreement in writing signed by each of the
parties hereto.
15. Waiver. The waiver of the breach of any term or provision of this
Agreement shall not operate as or be construed to be a waiver of any other or
subsequent breach of this Agreement.
16. Governing Law. This Agreement shall be construed and enforced in
accordance with the laws of the Commonwealth of Pennsylvania.
17. Invalidity. In case any one or more of the provisions contained in this
Agreement shall, for any reason, be held to be invalid, illegal or unenforceable
in any respect, such invalidity, illegality or unenforceability shall not affect
the validity of any other provision of this Agreement, and such provision(s)
shall be deemed modified to the extent necessary to make it enforceable.
18. Section Headings. The section headings in this Agreement are for
convenience only; they form no part of this Agreement and shall not affect its
interpretation.
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19. Number of Days. In computing the number of days for purposes of this
Agreement, all days shall be counted, including Saturdays, Sundays and legal
holidays; provided, however, that if the final day of any time period falls on a
Saturday, Sunday or day which is a holiday in the Commonwealth of Pennsylvania,
then such final day shall be deemed to be the next day which is not a Saturday,
Sunday or legal holiday.
20. Specific Enforcement; Extension of Period.
(a) Employee acknowledges that the restrictions contained in Sections 5, 6,
and 7 hereof are reasonable and necessary to protect the legitimate interests of
the Company and its affiliates and that the Company would not have entered into
this Agreement in the absence of such restrictions. Employee also acknowledges
that any breach by him of Sections 5, 6, or 7 hereof will cause continuing and
irreparable injury to the Company for which monetary damages would not be an
adequate remedy. The Employee shall not, in any action or proceeding to enforce
any of the provisions of this Agreement, assert the claim or defense that an
adequate remedy at law exists. In the event of such breach by Employee, the
Company shall have the right to enforce the provisions of Sections 5, 6, or 7 of
this Agreement by seeking injunctive or other relief in any court, and this
Agreement shall not in any way limit remedies of law or in equity otherwise
available to the Company. If an action at law or in equity is necessary to
enforce or interpret the terms of this Agreement, the prevailing party shall be
entitled to recover, in addition to any other relief, reasonable attorneys'
fees, costs and disbursements. In the event that the provisions of Sections 5,
6, or 7 hereof should ever be adjudicated to exceed the time, geographic, or
other limitations permitted by applicable law in any applicable jurisdiction,
then such provisions shall be deemed reformed in such jurisdiction to the
maximum time, geographic, or other limitations permitted by applicable law.
(b) In the event that Employee shall be in breach of any of the
restrictions contained in Section 8 hereof, then the Restricted Period shall be
extended for a period of time equal to the period of time that Employee is in
breach of such restriction.
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21. Consent to Suit. Any legal proceeding arising out of or relating to
this Agreement shall be instituted in the District Court of the Eastern District
of Pennsylvania, or if such court does not have jurisdiction or will not accept
jurisdiction, in any court of general jurisdiction in the Commonwealth of
Pennsylvania, and the Employee hereby consents to the personal and exclusive
jurisdiction of such court and hereby waives any objection that the Employee may
have to the laying of venue of any such proceeding and any claim or defense of
inconvenient forum.
22. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, and all of which
together shall be deemed to be one and the same instrument.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
the day and year first written above.
ATTEST: INTERDIGITAL COMMUNICATIONS
CORPORATION
By:/s/ Jane S. Schultz By:/s/ William A. Doyle,
------------------------- -------------------------
Title: Asst. Secretary Title: President
[CORPORATE SEAL]
/s/ Joseph H. Gifford
----------------------------
Joseph H. Gifford
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