AMENDED AND RESTATED EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT is made as of this 20th day of
November, 2000, by and between Howard E. Goldberg, a Pennsylvania resident (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 the design
and development of advanced wireless technologies and products that drive voice
and data communications and the licensing of wireless digital technology (as
more particularly described in the Company's Form 10-K for the year ended
December 31, 1999 and Form 10-Q for the quarter ended September 30, 2000 (the
"Business"). The definition of Business shall change and evolve over time as the
Company's business changes and evolves, and such definition shall automatically
adjust each year with the filing of the Company's then current Form 10-K to be
consistent with the business of the Company described therein.
WHEREAS, Employee and the Company are parties to a certain
Employment Agreement dated February 25, 1997 and amended as of April 6, 2000
(the "Original Agreement").
WHEREAS, Employee has been promoted to the position of Chief
Executive Officer of the Company (Employee's "Position").
WHEREAS, the Company has offered Employee a substantial
increase in compensation and extended severance benefits on the condition that
Employee enter into this Agreement in order to amend and restate the Original
Agreement so as to set forth certain terms and conditions relating to Employee's
continued employment and directorship with the Company.
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. Salary Increase. The Company hereby grants Employee an increase to his base
salary as set forth in Section 5 below and Employee hereby accepts such
increase.
2. Term and Duties. Until such time as Employee's employment hereunder is
terminated pursuant to the provisions of Section 10 hereto (the "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. 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
Board of Directors of the Company. Employee shall report to the Board of
Directors of the Company.
3. Director Appointment. Employee is being appointed a director of the Company
contemporaneously with Employee's assumption of the Position. Employee agrees
that, without further action or acknowledgment by Employee or the Company, his
position as a director shall terminate upon Employee's termination of employment
regardless of the reason for termination.
4. 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.
5. Compensation.
(a) 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 9 hereof, a base salary at
the annual rate of Three 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.
(b) Employee shall be eligible to participate in the Company's Employee
Incentive Bonus Plan, as amended from time to time (the " Bonus Plan"), on terms
and conditions no less favorable than those provided to the other Company senior
and executive officers so long as the same may be in effect. For the Year 2000,
Employee shall have a target bonus level of 57% of his Base Salary under the
Bonus Plan. The goals shall be consistent with the goals set for other senior
and executive officers. The bonus shall be subject to the terms of the Bonus
Plan, as amended from time to time, and shall be referred to herein as the
"Annual Target Bonus".
(c) Employee will be granted options to purchase 120,000 shares of the
Company's common stock at an exercise price equal to the closing market price on
the NASDAQ on the date of grant as reported in the Wall Street Journal. Such
options shall be granted pursuant to, and shall be governed by, the terms and
conditions of the Company's 2000 Stock Award and Incentive Plan ("Stock Plan").
Subject to such terms and conditions of the Stock Plan, the stock options shall
vest as follows:
December 31, 2000 20,000 shares
June 30, 2001 20,000 shares
December 31, 2001 20,000 shares
June 30, 2002 20,000 shares
December 31, 2002 20,000 shares
June 30, 2003 20,000 shares
(d) For the duration of your Position, the Company will reimburse you
for a leased automobile (the "Automobile") of comparable type to a Lincoln LS,
as determined by the comparability of Lease terms. Employee currently has a
Lease for a 2000 Lincoln LS which terminates on or about April 14, 2002. So long
as you remain an employee of the Company, the Company will pay you on a monthly
basis an amount sufficient to cover the cost of the Lease and insurance and
maintenance on the Automobile. Company will also pay you an amount sufficient to
indemnify you for federal and state taxes you will have on the W-2 income
generated by the Company's payment of these Automobile expenses so as to leave
you with a tax liability equal to what you would have had if no such
reimbursements were made and deductions permitted (the "Gross-Up"). The amount
of the Gross-Up shall be determined in the professional judgment of
InterDigital's CFO after consultation with each party's tax adviser. In
addition, in the event that your employment with the Company terminates under
Sections 10.1 (Termination on Disability), 10.2 (Termination on Death), or 10.4
(Termination Without "Cause"), the Company agrees, at its option, to pay you in
one lump sum either an amount equal to the aggregate total of the remaining base
monthly payments required to be paid under the Automobile Lease less the
security deposit or the residual value required to buy out the Automobile Lease,
or continue to make the Automobile Lease payments through the Automobile Lease's
termination date, or buy-out the Automobile Lease as in effect through the
Automobile Lease's termination date. As conditions to such agreement, if
requested by the Company, you must assign your rights and interest in and to the
Automobile Lease to the Company and any security interest to the Company and
provide possession to the Company in physical condition under which all security
deposits would be required to be refunded to the Company and no fees would be
assessed with respect thereto.
(e) In the event any amount or benefit payable to the Employee under
this Agreement or under any other plan, agreement or arrangement applicable to
the Employee, is subject to an excise tax imposed under Section 4999 of the
Internal Revenue Code of 1986, as amended (the "Code") (or imposed under any
successor provision of the Code imposing a tax liability on "excess parachute
payments" as that term is defined in Code Section 280G), Employee shall be
entitled, in addition to any other amounts payable under the terms of this
Agreement or under any other plan, agreement or arrangement applicable to the
Employee, to a cash payment in an amount sufficient to indemnify the Employee
(or such other person as may be liable for the payment of such excise tax) for
the amount of any such excise tax, and leaving Employee with an amount, net
after all federal, state and local taxes, equal to the amount Employee would
have had if no portion of his benefit under the Plan constituted an "excess
parachute payment. Notwithstanding the foregoing, the determination of the
amount necessary to indemnify the Employee shall be made taking into account all
other payments made to the Employee under any plans, agreements or arrangements
aside from this Agreement that are intended to indemnify the Employee with
respect to excise taxes on "excess parachute payments. Any disputes as to
calculations to be made under this paragraph shall be resolved by the Company's
independent auditors, whose determinations shall be final and binding. This
provision shall survive the termination of this Agreement and Employee's
employment.
6. Benefits and Expenses. Employee and his dependants shall be entitled to
receive those employee benefits (including without limitation medical plan,
dental plan, optional 401K participation and expense reimbursement) as shall be
provided to similarly situated executive employees of the Company ("Benefits").
7. 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
8(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 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 7. 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.
8. 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 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 8(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.
9. 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 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 9(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.
An activity shall be deemed "directly competitive" when there is a
reasonable likelihood based on Employee's actual possession (whether or not in
tangible form) of technical trade secrets or confidential information that the
activity prohibited would result in the use of technical trade secrets or other
highly confidential information of the Company's or its business associates.
For purposes of this Section 9, the Restricted Period shall constitute
a period ending one (1) year after Employee's termination date, regardless of
the reason for termination.
10. Termination. Employee's employment hereunder may be terminated during the
Term upon the occurrence of any one of the events described in this Section 10.
Upon termination, Employee shall be entitled only to such compensation and
benefits as described in this Section 10.
10.1 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.
(b) In the event of a termination of Employee's employment
hereunder pursuant to Section 10.1(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, provided Employee signs Company's standard form termination letter as
provided for in Section 11 below, 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
.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 both for a period of eighteen (18) months
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 employees from
time to time in effect. Except as specifically set forth in this Section
10.1(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 10.1, the determination as to
whether Employee has a Disability 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.
10.2 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 10.2, 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.
10.3 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 10.3(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 10.3, the Company shall have no
liability or obligation hereunder, including without limitation for any
severance whatsoever, by reason of such termination.
10.4 Termination Without Cause.
(a) The Company may terminate Employee's employment hereunder
at any time, for any reason, without cause upon notice to Employee.
(b) In the event of a termination of Employee's employment
hereunder pursuant to Section 10.4(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. In addition, provided Employee signs Company's
standard form termination letter as provided for in Section 11 below, 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 eighteen (18) months commencing upon the date of such
termination. Employee shall also be entitled to receive severance in an amount
equal to fifty percent (50%) of Employee's Target Bonus for the year in which
Employee was terminated, payable over a period of eighteen (18) months
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. Except as specifically set forth in this Section
10.4(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 10.4, the Company shall have no liability or obligation
hereunder by reason of such termination.
10.5 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 10.5(a); provided that, such date shall be at
least thirty (30) days after the date of such notice. 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. 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 10.5(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 10.5(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 and provided Employee signs Company's standard
form termination letter as provided for in Section 11 below, 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 eighteen (18) months commencing upon the date of such
termination. Employee shall also be entitled to receive severance in an amount
equal to fifty percent (50%) of Employee's Target Bonus for the year in which
Employee was terminated, payable over a period of 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. Except as specifically set forth in this Section 10.5(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 10.5, the Company shall have no liability or obligation hereunder by
reason of such termination.
10.6 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), provided Employee signs Company's
standard form termination letter as provided for in Section 11 below, 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 and restricted stock granted to Employee by Company which pursuant to
the terms of the applicable plan vest upon a Change in Control shall vest.
Except as specifically set forth in this Section 10.6, 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 or
a sale of substantially all of the assets of the Company. For these purposes,
"Person" means an individual, partnership, corporation, joint venture,
association, trust, unincorporated association, other entity or association.
10.7 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 10.1 or 10.3 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 10.7(a), Employee will be entitled to receive all
accrued and unpaid (as of the date of such termination) Base Salary and Benefits
and Other 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, provided
Employee signs Company's standard form termination letter as provided for in
Section 11 below, 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 10.8(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, both for a period of eighteen (18) months commencing
upon the date of such termination. Employee shall also be entitled to receive
severance in an amount equal to fifty percent (50%) of Employee's Target Bonus
for the year in which Employee was terminated, payable over a period of eighteen
(18) months commencing upon the date of such termination. Except as specifically
set forth in this Section 10.7(b), the Company shall have no liability or
obligation to Employee for compensation or benefits hereunder by reason of such
termination.
11. Termination Letter. As a condition precedent to the Company's payment of
severance and continuation of medical and dental insurance coverage pursuant to
Sections 10.1, 10.4, 10.5, 10.6 and 10.7 above, Employee must sign and deliver
to Company Company's form of termination letter, without revocation, which
includes a broad-based employment release (containing, without limitation, a
release of claims for age discrimination), an obligation to return Company
property and a reiteration of Employee's confidentiality obligations, within the
time frame specified in the termination letter.
12. 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.
13. Survival of Provisions. The provisions of this Agreement set forth in
Sections 7, 8, 9, 10 (solely with respect to the payment obligations of the
Company to Employee, if any, set forth therein), 11 12, 13, 14, 19, 23 and 24
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 10 hereof with
respect to the particular circumstances involved in the Employee's termination
of employment.
14. 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.
15. 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.
16. 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:
Howard E. Goldberg
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:
Pepper, Hamilton & Scheetz
3000 Two Logan Square
18th and Arch Streets
Philadelphia, PA 19103
Attn: 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.
17. Entire Agreement; Amendments. This 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 excepting the non-disclosure agreement
and the Statement of Ethics signed by Employee at the commencement of Employee's
employment with the Company, various forms related to the commencement of
Employee's employment with the Company and Employee's participation in employee
benefit plans offered by the Company (including, without limitation, option and
restricted stock agreements), and agreements to be bound by Company policies to
the extent that these other agreements do not conflict with the terms of this
Agreement.
18. 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.
19. Governing Law. This Agreement shall be construed and enforced in accordance
with the laws of the Commonwealth of Pennsylvania.
20. 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.
21. 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.
22. 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.
23. Specific Enforcement; Extension of Period.
(a) Employee acknowledges that the restrictions contained in
Sections 7, 8 and 9 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 7, 8 or 9 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 7, 8 and 9 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 7, 8 or 9 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 9 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.
24. 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.
25. 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 Merritt
--------------- ------------------
Title: Asst Secr Title: EVP
[CORPORATE SEAL]
/s/Howard E Goldberg
-------------------------
Howard E. Goldberg