================================================================
EMPLOYMENT AGREEMENT
BETWEEN
BRIAN KIERNAN
AND
INTERDIGITAL COMMUNICATIONS CORPORATION
NOVEMBER 19, 1996
================================================================
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT is made this 19th day of November,
1996, by and between Brian Kiernan, 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 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, Employee serves in the position of Vice President of
the Company (Employee's "Position") .
WHEREAS, the Company has offered Employee a substantial
increase in base salary on the condition that Employee enter into this Agreement
with Company in order to set forth certain terms and conditions relating to
Employee's continued employment 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 4 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 9 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 President or the Chief Executive Officer of the Company. Employee
shall report to the President and the Chief Executive Officer 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 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 Thirty 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 sentence, 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.
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) 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 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 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, 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 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 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 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.
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 9.8(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 9.8(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. Except
as specifically set forth in this Section 9.8(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 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:
Brian Kiernan
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
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 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.
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 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.
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
--------------- -------------------------------
Title: Asst Sect Title: President
[CORPORATE SEAL]
/s/ Brian G. Kiernan
--------------------------
Brian Kiernan