================================================================
EMPLOYMENT AGREEMENT
BETWEEN
WILLIAM C. MILLER
AND
INTERDIGITAL COMMUNICATIONS CORPORATION
JULY 24, 2000
================================================================
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT is made as of this 24th day of July,
2000, by and between William C. Miller, (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 development
and marketing digital wireless telecommunications technologies and components
technologies for advanced wireless applications, including voice and high data
rate applications, and the licensing of wireless digital telephone technology
and patents, as such business may be redefined from time to time and described
as such in the Company's then current Annual Report on Form 10-K (the
"Business").
WHEREAS, the Company has offered Employee employment as Senior
Vice President, Programs and Engineering, and Employee is willing to accept such
offer, as set forth in this 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,
Programs and Engineering of the Company (such position, Employee's
"Position") for a period commencing on July 24, 2000 and continuing
until employment hereunder is terminated pursuant to the provisions of
Section 9 hereof (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 assigned to Employee from time to time
by the Chief Executive Officer of the Company. Employee shall report to
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.
A) Base Salary. 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 in accordance with Company
compensation policies, 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) Annual Incentive Bonus. Employee shall be eligible to
participate in the Company's Employee Incentive Bonus Plan, as
amended from time to time (the " Bonus Plan"), on the terms
and conditions no less favorable than those provided to the
other Company senior and executive officers. For the Year
2000, Employee shall have a target bonus level of 40%, based
on the achievement of business and personal goals to be set by
the Board of Directors, and shall be payable pro-rata based on
the time period Employee is a regular full time employee
during the 2000 calendar year. The bonus shall be subject to
the terms of the Bonus Plan, as amended from time to time.
C) Stock Options. Effective on the first date of Employee's
employment with the Company, Employee will be granted
non-qualified options to purchase 35,000 shares of the
Company's common stock at an exercise price equal to the
closing market price on the NASDAQ of the Company's common
stock on the date of grant as reported in the Wall Street
Journal ("FMV"). 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 and the terms
and conditions in effect thereunder (together, the "Incentive
Plan") under which such options are granted. Subject to such
terms and conditions of the Incentive Plan, the stock options
shall vest as follows:
December 31, 2000 5,833 shares
June 30, 2001 5,833 shares
December 31, 2001 5,833 shares
June 30, 2002 5,833 shares
December 31, 2002 5,834 shares
June 30, 2003 5,834 shares
5. Benefits and Expenses.
A) Company Plan Participation. 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").
B) Vacation. Employee will be entitled to three weeks vacation
with the ability to carry over any unused vacation earned in a
given year to the following year.
C) Tax Gross-Up. 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.
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, 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) Ownership. All right, title and interest in and to Proprietary
Information shall be and remain the sole and exclusive
property of the Company (or its partners, customers, vendors,
etc., as the case may be). 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) Assignment
(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 7.1(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 7(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 Agreement, 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 9.2 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. In the case of (iii)
above, Employee's termination notice shall specify the name of any
employer that Employee intends to accept employment with and the nature
of the proposed position. Company shall render its decision whether or
not to enforce the Restricted Period and notify Employee thereof within
thirty days of Employee's notice of termination to Company.
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 by Employee. 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 9.1. For purposes of this Agreement,
Good Reason shall mean 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 which failure is not cured within ten (10) business
days after notice to Company. In the event of a termination of
Employee's employment hereunder pursuant to this Section 9.1,
this Agreement shall terminate effective upon receipt by
Company of Employee's notice of termination. In such event,
Employee's rights to compensation and benefits hereunder shall
terminate as of the date of termination, except that Employee
shall be entitled to the accrued and unpaid base salary,
employee benefits (including expense reimbursement) as
provided herein ("Benefits") and other forms of compensation
and bonus payable herein ("Other Compensation") up through the
date of termination. 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 10
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 twelve (12) months
commencing upon the date of such termination. Except as
specifically set forth in this Section 9.1, 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 9.1, the
Company shall have no liability or obligation to Employee or
any other person claiming under or through him by reason of
such termination.
9.2 Termination for Cause. If Company terminates Employee's
employment for Cause, then this Agreement shall terminate
immediately and Employee's rights to compensation and benefits
hereunder shall terminate as of the date of termination,
except that Employee shall be entitled to the accrued and
unpaid portion of his base salary, Benefits and Other
Compensation up through the date of termination. For purposes
of this Agreement, the term "Cause" shall mean (i) any
material breach of Employee's employment obligations, which
breach remains uncured seven (7) days after written notice of
such breach from the Company, or (ii) Employee commits an act
or omission which results in or is intended to result in gain
or personal enrichment of Employee at the expense of Company;
or (iii) an act by 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 (iv) during the term of
Employee's employment, Employee's conviction of a felony.
Except as specifically set forth in this Section 9.2, the
Company shall have no liability or obligation to Employee or
any other person claiming under or through him by reason of
such termination.
9.3 Termination on Death. If Employee dies, then this Agreement
shall terminate immediately and Employee's rights to
compensation and benefits hereunder shall terminate as of the
date of death, except that Employee's executors, legal
representatives or administrators shall be entitled to the
accrued and unpaid portion of his base salary, Benefits and
Other Compensation up through the date of death. Except as
specifically set forth in this Section 9.3, 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, administrators, or beneficiaries will
be entitled to receive the payment prescribed under any life,
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.
9.4 Termination on Disability. 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. In such event, this Agreement shall
terminate on the date of termination and Employee will be
entitled to receive all accrued and unpaid base salary and
Benefits and Other Compensation, including payments prescribed
under any disability insurance plan or arrangement in which
Employee is a participant. Except as specifically set forth in
this Section 9.4, the Company shall have no liability or
obligation to Employee or any other person claiming under or
through him by reason of Employee's disability or such
termination.
9.5 Termination Without "Cause". The Company may terminate
Employee's employment hereunder at any time, for any reason,
without cause, effective upon the date designated by the
Company. In the event Company terminates Employee's employment
without Cause or Disability, as set forth above, this
Agreement shall terminate on the date of termination and
Employee shall be entitled to receive all accrued but unpaid
base salary, Benefits and Other Compensation up to the date of
termination. In addition, provided Employee signs Company's
standard form termination letter as provided for in Section 7
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 twelve (12) 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 9.5, the Company shall have no
liability or obligation to Employee or any other person
claiming under or through him by reason of such termination.
9.6 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 9.2 or 9.4 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 9.6(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 10 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 (to the extent
such coverage is not provided under other Company
policies, plans or programs relating to Disability),
both for the period of twelve (12) months commencing
upon the date of such termination. Such severance
amounts shall be 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 9.6(a). Except as
specifically set forth in this Section 9.6(b), the
Company shall have no liability or obligation to
Employee for compensation or benefits hereunder by
reason of such termination.
9.7 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) and
provided Employee signs Company's standard form
termination letter as provided for in Section 10
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 (a) two (2) years' worth of
Employee's base salary, and (b) 100% of the target
annual bonus; and (ii) all stock options granted to
Employee by Company which pursuant to the terms of
the applicable Option Plan vest upon a Change in
Control shall vest, and (iii) all restrictions on
restricted stock and RSUs, to the extent the Company
in its sole discretion subsequently grants such
securities, which pursuant to the terms of the
applicable retsricted stock plan lift (including as
to vesting) shall be lifted. Except as specifically
set forth in this Section 9.7, 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 9.7, 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. Termination Letter. As a condition precedent to the Company's payment
of severance and continuation of medical and dental insurance coverage
pursuant to Sections 9.1, 9.5, 9.6 and 9.7 above, Employee must sign
and deliver to Company 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.
11. Company Understanding. The Company does not want to benefit from any
proprietary or other information, in any form, that Employee is under a
duty not to use or divulge, whether it be from Employee's current
employer or any other person or entity. Accordingly and as a condition
of employment hereunder, Employee is instructed not to violate the
terms of any such restriction or otherwise breach said duty. In
furtherance thereof, and without limiting other action, 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.
12. Survival of Provisions. Notwithstanding anything in this Agreement to
the contrary, all representations, warranties, obligations of
performance, statements, responsibilities, indemnities, terms or
conditions impliedly or expressly involving performance subsequent to
the expiration or termination of this Agreement, or which cannot be
determined to have been fully performed until after such time, or which
by a fair reading of their nature are intended to survive shall be
deemed to survive. If for any reason Employee shall continue to be
employed by the Company following the termination of Employee's
employment under this Agreement, 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.
13. 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.
14. 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.
15. 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:
William C. Miller
c/o InterDigital Communications Corporation
2 Huntington Quadrangle
Melville, N.Y. 11747
If to Company:
InterDigital Communications Corporation
781 Third Avenue
King of Prussia, Pennsylvania 19406
Attn: Mark Gercenstein, CEO
or to such other address as either party may from time to time
duly specify by notice given to the other party n the manner
specified above.
16. Entire Agreement; Amendments. This Agreement contains the entire
agreement and understanding of the parties hereto relating to the
subject matter hereof, and merges and supersedes all prior and
contemporaneous discussions, agreements and understandings of every
nature between the parties hereto relating to the employment of
Employee with the Company 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.. This Agreement may not be changed or modified, except
by an Agreement in writing signed by each of the parties hereto.
17. 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.
18. Governing Law. This Agreement shall be construed and enforced in
accordance with the laws of the Commonwealth of Pennsylvania.
19. 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.
20. 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.
21. 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.
22. 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, and
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, and 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.
23. 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.
24. 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/ M. Gercenstein
--------------------------- ----------------------
Title: Asst Secr Title: C.E.O.
/s/William C Miller
-------------------------------
WILLIAM C. MILLER