EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT is made this 16th day of November, 1998, by and
between Richard Fagan, a resident of Chadds Ford, 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
advanced digital wireless telecommunications systems using proprietary
technologies for voice and data communications and the licensing of wireless
digital telephone technology (the "Business").
WHEREAS, the Company and Employee have entered into a letter agreement,
dated November 16, 1998, pursuant to which, inter alia, the Company has offered
Employee and Employee has accepted the position of Senior Vice President and
Chief Financial Officer of the Company (the "Letter Agreement").
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 and Term. The Company hereby employs Employee and Employee
hereby accepts employment with the Company, as Senior Vice President and Chief
Financial Officer (such position, Employee's "Position") for a period commencing
no later than November 16, 1998 and continuing until employment hereunder is
terminated pursuant to the provisions of Section 9 hereto (the "Term").
2. Duties. During the term of his employment, 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. Employee agrees to assume such duties and
responsibilities as may be customarily incident to such position, and as may be
reasonably assigned to Employee from time to time by the President. Employee
shall report to the President of the Company.
3. 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
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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.
4. 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 8 hereof, a base
salary at the annual rate of One Hundred and Sixty 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, commencing in 1999,
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 Hay Associates. 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. Employee shall also be entitled
to receive stock options subject to Board approval as more particularly
described in the Letter Agreement.
5. 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").
6. 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
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)
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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 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 6. 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.
7. 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
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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
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
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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
7(b)(iii) hereof, whether because 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.
8. 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 business activity 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 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,
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consultant or otherwise) any portion of the business of any person, firm,
corporation, association or other entity where such portion of such
business is 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 8(a) hereof;
(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 8, the Restricted Period shall constitute
(as applicable) (i) the period, if any, that Employee shall receive
severance as set forth in Section 9 hereof, (ii) in the event Employee's
employment hereunder is terminated for cause pursuant to Section 9 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.
9. Termination. Employee's employment hereunder may be terminated during
the Term upon the occurrence of any one of the events described in this Section
9. Upon termination, Employee shall be entitled only to such compensation and
benefits as described in this Section 9.
9.1. 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
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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.
(b) In the event of a termination of Employee's employment hereunder
pursuant to Section 9.1(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 9.1(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 9.1(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 9.1, 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.
9.2. 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. Except as specifically
set forth in this Section 9.2, 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
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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.
9.3. 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 9.3(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 9.3, the
Company shall have no liability or obligation hereunder, including without
limitation for any severance whatsoever, by reason of such termination.
9.4. 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 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 9.4(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
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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 9.4, the Company shall have no liability or obligation
hereunder by reason of such termination.
9.5. 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 9.5(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 9.5(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.
(b) In the event of a termination of Employee's employment hereunder
pursuant to Section 9.5(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 9.4(b) hereof. Except as
specifically set forth in this Section 9.5(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
9.5, the Company shall have no liability or obligation hereunder by reason
of such termination.
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9.6. 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
9.6, 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.
(b) For purposes of this Section 9.6, 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.
9.7. 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 9.1 or 9.3 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 9.7(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.
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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 9.7(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 Section 9.7(b), the Company shall have no liability or obligation
to Employee for compensation or benefits hereunder by reason of such
termination.
10. 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.
11. Survival of Provisions. The provisions of this Agreement set forth in
Sections 6, 7, 8, 9 (solely with respect to the payment obligations of the
Company to Employee, if any, set forth therein), 10 and 21 hereof shall survive
the
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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 9 hereof with respect to the particular
circumstances involved in the Employee's termination of employment.
12. 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.
13. 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.
14. 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:
Richard Fagan
1 Cross Creek Lane
Chadds Ford, PA 19317
or
c/o InterDigital Communications Corporation
781 Third Avenue
King of Prussia, Pennsylvania 19406
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If to Company:
InterDigital Communications Corporation
781 Third Avenue
King of Prussia, Pennsylvania 19406
Attn: Harry Campagna, Chairman
with a copy to:
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.
15. Entire Agreement; Amendments. This Agreement and the Letter Agreement
contain 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. The provisions of this Agreement supersede any inconsistent provisions
contained in the Letter Agreement. The balance of the Letter Agreement shall
remain in full force and effect and unaffected hereby. This Agreement may not be
changed or modified, except by an Agreement in writing signed by each of the
parties hereto.
16. 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.
17. Governing Law. This Agreement shall be construed and enforced in
accordance with the laws of the Commonwealth of Pennsylvania.
18. 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
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provision(s) shall be deemed modified to the extent necessary to
make it enforceable.
19. 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.
20. 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.
21. Specific Enforcement; Extension of Period.
(a) Employee acknowledges that the restrictions contained in Sections
6, 7, and 8 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 6, 7, or 8
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 6, 7, and 8 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
6, 7, or 8 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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22. 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.
23. 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 Schultz By: /s/ William A. Doyle
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Jane Schultz William A. Doyle
Asst. Secretary President
[CORPORATE SEAL]
/s/ R. J. Fagan
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RICHARD FAGAN
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