AMENDMENT
This Amendment is made between InterDigital Communications Corporation
("InterDigital") and Brian Kiernan ("Employee"), with reference to the following
recitals:
A. InterDigital and Employee are parties to a certain Employment
Agreement ("Agreement") dated November 19, 1996.
B. InterDigital and Employee desire to amend certain terms of the
Agreement, as set forth herein.
NOW, THEREFORE, in consideration of the above recitals, the mutual promises
contained herein and intending to be legally bound thereby, the parties agree as
follows:
1. Tax Gross-Up. The following provision is hereby added to the end of
Section 5 of the Agreement:
"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 Grantee with an amount,
net after all federal, state and local taxes, equal to the amount
Grantee 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"
2. Business. The definition of "Business" is hereby amended to be "the
design and development of technology content and system solutions for advanced
digital wireless communications applications and the licensing of wireless
digital telephone technology( as more particularly described in the Company's
Form 10-K)". 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.
3. Change in Control Definition. Section 9.6(b) of the Agreement is
hereby amended to read as follows:
"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."
4. Termination Letter. The Agreement shall be amended to provide for
the requirement that Employee sign the Company's standard form termination
letter as a condition to receiving severance and benefits continuation in the
event of a termination for absenteeism and in the event of a Change in Control
and that , to be effective, the termination letters must not be revoked.
Accordingly, the phrase "and provided Employee signs Company's standard form
termination letter as provided for in Section 9.8 below" is hereby added to the
second sentence of Sections 9.1(b), 9.4(b), 9.5(b) and 9.7(b) after the words
"In addition," and to the second sentence of Section 9.6(a) after the words "In
addition, (i)". Further, a new Section 9.8 is hereby added to read as follows:
"As a condition precedent to the Company's payment of severance and
continuation of medical and dental insurance coverage pursuant to
Sections 9.1, 9.4, 9.5, 9.6 and 9.7 herein, Employee must sign and
deliver to Company Company's termination letter (without revocation to
the extent such right is provided) which includes a broad-based
employment release, an obligation to return Company property and a
reiteration of Employee's confidentiality obligations, within the time
frame specified in the termination letter."
5. Covenant Not to Compete. The covenants contained in Sections 8(a)
and 8(b) shall be deemed only to apply to activities that are "directly
competitive" with the Company's Business. An activity shall be deemed "directly
competitive" when there is a reasonable likelihood 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.
6. Entire Agreement. Section 15 of the Agreement is hereby amended to
add the following at the end of the first sentence: "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.
7. Force and Effect. Nothing contained herein or in the Agreement shall
be construed to alter Employee's status as an employee-at-will. Except as
amended and modified herein, the Agreement shall continue in full force and
effect.
INTENDING TO BE LEGALLY BOUND, the parties have executed this Amendment
as of the 6th day of April, 2000.
INTERDIGITAL COMMUNICATIONS CORPORATION
By: /s/William Merritt
/s/Brian G. Kiernan
- -----------------------------
BRIAN KIERNAN