As filed with the Securities and Exchange Commission on August 28, 1998.
Registration No. 333-
- ------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
PARKERVISION, INC.
-----------------------------------------------------
(Exact name of registrant as specified in its charter)
Florida 59-2971472
- ----------------------------- -----------------------
(State or jurisdiction of (I.R.S. Employer
Incorporation or organization) Identification Number)
8493 BAYMEADOWS WAY
JACKSONVILLE, FLORIDA 32256
(Address of principal executive offices)
1993 STOCK PLAN
and
OTHER EMPLOYEE OPTION PLAN
---------------------------
(Full title of the Plans)
Jeffrey Parker, Chairman of the Board
ParkerVision, Inc.
8493 Baymeadows Way
Jacksonville, Florida 32256
(904) 737-1367
- -------------------------------------------------------------------------------
(Name, address and telephone number, including area code, of agent for service)
with a copy to:
David Alan Miller, Esq.
Graubard Mollen & Miller
600 Third Avenue
New York, New York 10016
(212) 818-8800
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed Proposed
maximum maximum
Title of Securities Amount to be offering price aggregate Amount of
to be registered registered per share(1) offering price(1) registration fee
==================================== ===================== ===================== ====================== ======================
<S> <C> <C> <C> <C>
Common Stock, par value
$.01 per share 2,000,000 shares(2) $14.50 $29,000,000 $8,787.87
==================================== ===================== ===================== ====================== ======================
</TABLE>
(1) Based upon the last sale price of the Common Stock, as reported by The
Nasdaq National Market, on August 24, 1998, in accordance with Rule 457(c)
promulgated under the Securities Act of 1933, as amended.
(2) Pursuant to Rule 416, there also are being registered additional securities
as may be issued as a result of anti-dilution provisions under each of the
1993 Stock Option Plan and the Other Employee Option Plan.
-----------
In accordance with the provisions of Rule 462 promulgated under the
Securities Act of 1933, as amended, the Registration Statement will become
effective upon filing with the Securities and Exchange Commission.
-----------
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information. *
Item 2. Registrant Information and Employee Plan Annual Information. *
- -------------------------
* Information required by Part I to be contained in the Section 10(a)
prospectus is omitted from this Registration Statement in accordance
with Rules 428 and 424 under the Securities Act of 1933 and the Note to
Part I of the Instructions to Form S-8.
I-1
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Except for Item 8 disclosure, the contents of Part II of the
Registration Statement on Form S-8 (No. 33-93658) previously filed by the
Registrant with the Securities and Exchange Commission ("Commission") on June
19, 1995, are incorporated by reference in this Registration Statement.
On September 19, 1996 and August 22, 1997, the Board of Directors of
the Registrant approved amendments to the 1993 Stock Plan to increase the number
of shares of Common Stock available under the 1993 Stock Plan to an aggregate of
2,000,000 shares of Common Stock. The amendments to the 1993 Stock Plan were
approved by the stockholders of the Registrant on October 29, 1996 and November
7, 1997, respectively. Accordingly, the Registrant is filing this Registration
Statement to register the additional 1,500,000 shares of Common Stock available
under the 1993 Stock Plan.
On May 26, 1998, the Board of Directors of the Registrant approved the
grant of options to purchase up to 500,000 shares of Common Stock to an
executive employee of the Registrant which forms the Other Employee Stock Option
Plan.
Item 8. Exhibits.
Exhibit No. Description
5.1 Opinion of Graubard Mollen & Miller
10.1 1993 Stock Plan of the Registrant (Incorporated by reference to
Exhibit 10.2 from Registration Statement on Form SB-2 No. 33-70588-A)
10.2 Stock Option Agreement (Vesting) dated July 23, 1998 between
Registrant and Richard L. Sisisky
10.3 Stock Option Agreement (Acceleration) dated July 23, 1998 between
Registrant and Richard L. Sisisky
10.4 Employment Agreement dated July 23, 1998 between Registrant and
Richard L. Sisisky
23.1 Consent of Arthur Andersen LLP, independent accountants for Registrant
23.2 Consent of Graubard Mollen & Miller (included in Exhibit 5.1)
24.0 Power of Attorney (included on the signature page hereto.)
II-1
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Jacksonville, State of Florida on this 28th day of
August, 1998.
PARKERVISION, INC.
By: /s/ Jeffrey Parker
----------------------------------------
Jeffrey Parker, Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Jeffrey Parker and David F. Sorrells his
true and lawful attorneys-in-fact and agents, each acting alone, with full power
of substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign any or all amendments to this Registration
Statement, including post-effective amendments, and to file the same, with all
exhibits thereto, and all documents in connection therewith, with the Securities
and Exchange Commission, granting unto said attorneys-in-fact and agents, and
each of them, full power and authority to do and perform each and every act and
thing requisite and necessary to be done in and about the premises, as fully to
all intents and purposes as he might or could do in person, and hereby ratifies
and confirms all that said attorneys-in-fact and agents, each acting alone, or
their substitute or substitutes, may lawfully do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<S> <C> <C>
Chairman of the Board, Chief Executive
/s/ Jeffrey Parker Officer and Director (Principal Executive August 28, 1998
- ------------------------------------ Officer)
Jeffrey Parker
/s/ Richard L. Sisisky President, Chief Operating Officer and August 28, 1998
- ------------------------------------ Director
Richard L. Sisisky
Secretary, Treasurer and Director
/s/ Stacie Parker Wilf (Principal Accounting Officer and August 28, 1998
- ------------------------------------ Principal Financial Officer)
Stacie Parker Wilf
/s/ David F. Sorrells Chief Technical Officer and Director August 28, 1998
- ------------------------------------
David F. Sorrells
/s/ Cynthia Poehlman Controller and Chief Accounting Officer August 28, 1998
- ------------------------------------
Cynthia Poehlman
- ------------------------------------ Director
Todd Parker
/s/ William L. Sammons Director August 28, 1998
- ------------------------------------
William L. Sammons
Director August 28, 1998
/s/ Arthur G.Yeager
- ------------------------------------
Arthur G.Yeager
</TABLE>
II-2
<PAGE>
EXHIBIT INDEX
Exhibit No. Description
5.1 Opinion of Graubard Mollen & Miller
10.1 1993 Stock Plan of the Registrant (Incorporated by reference to
Exhibit 10.2 from Registration Statement on Form SB-2 No. 33-70588-A)
10.2 Stock Option Agreement (Vesting) dated July 23, 1998 between
Registrant and Richard L. Sisisky
10.3 Stock Option Agreement (Acceleration) dated July 23, 1998 between
Registrant and Richard L. Sisisky
10.4 Employment Agreement dated July 23, 1998 between Registrant and
Richard L. Sisisky
23.1 Consent of Arthur Andersen LLP, independent accountants for Registrant
23.2 Consent of Graubard Mollen & Miller (included in Exhibit 5.1)
24.0 Power of Attorney (included on the signature page hereto)
II-3
<PAGE>
August 28, 1998
ParkerVision, Inc.
8493 Baymeadows Way
Jacksonville, Florida 32256
Dear Sirs:
Reference is made to the Registration Statement on Form S-8 ("Registration
Statement") filed by ParkerVision, Inc. ("Company") under the Securities Act of
1933, as amended ("Act"), with respect to an aggregate of 2,000,000 shares of
common stock, par value $.01 per share ("Common Stock") to be offered by the
Company under the Company's 1993 Stock Plan ("Plan") and Sisisky Employment
Option Plan.
We have examined such documents and considered such legal matters as we
have deemed necessary and relevant as the basis for the opinion set forth below.
With respect to such examination, we have assumed the genuineness of all
signatures, the authenticity of all documents submitted to us as originals, the
conformity to original documents of all documents submitted to us as reproduced
or certified copies, and the authenticity of the originals of those latter
documents. As to questions of fact material to this opinion, we have, to the
extent deemed appropriate, relied upon certain representations of certain
officers and employees of the Company. We have also assumed that in granting
awards under the Plan and Other Employee Option Plan, the Board of Directors of
the Company or the appropriate committee thereunder will exercise its discretion
in establishing the terms of such awards within the permissible limits of the
law of the State of Florida.
Based upon the foregoing, it is our opinion that the Common Stock to be
issued by the Company under the Plan and Other Employee Option Plan, when sold
in accordance with the terms of the Plan and Other Employee Option Plan and the
instruments governing their issuance, will be legally issued, fully paid and
nonassessable, although they may be subject to contractual restrictions
established by the applicable Plan instrument and option agreement under the
Other Employee Option Plan.
In giving this opinion, we have assumed that all certificates for the
Company's shares of Common Stock, prior to their issuance, be duly executed on
behalf of the Company by the Company's transfer agent and registered by the
Company's registrar, if necessary, and will conform, except as to denominations,
to specimens which we have examined.
<PAGE>
ParkerVision, Inc.
August 28, 1998
Page 2
We hereby consent to the use of this opinion as an exhibit to the
Registration Statement, to the use of our name as your counsel, and to all
references made to us in the Registration Statement and in the Prospectus
forming a part thereof. In giving this consent, we do not hereby admit that we
are in the category of persons whose consent is required under Section 7 of the
Act, or the rules and regulations promulgated thereunder.
Very truly yours,
GRAUBARD MOLLEN & MILLER
<PAGE>
VESTING OPTIONS
STOCK OPTION AGREEMENT
AGREEMENT dated July 23, 1998 between RICHARD L. SISISKY, residing at
6676 Epping Forest Way North, Jacksonville, Florida 32217 (the "Employee" or
"Grantee") and PARKERVISION, INC., a Florida corporation having its principal
office at 8493 Baymeadows Way, Jacksonville, Florida 32256 ("Company").
WHEREAS, on May 22, 1998, the Board of Directors of the Company
authorized the employment of the Employee pursuant to the terms of an Employment
Agreement executed simultaneously herewith ("Employment Agreement"), and the
grant to the Employee of an option to purchase an aggregate of 250,000 of the
authorized but unissued shares of the Common Stock of the Company, $.01 par
value ("Common Stock"), on the terms and conditions set forth in this Agreement;
and
WHEREAS, the Employee desires to acquire said option on the terms and
conditions set forth in this Agreement;
IT IS AGREED:
1. Grant of Option. The Company hereby grants to the Employee the right
and option to purchase all or any part of an aggregate of 250,000 shares of the
Common Stock on the terms and conditions set forth herein ("Option"). Options to
purchase 4,675 Option shares scheduled to vest on December 31 of each of 1998,
1999, 2000,2001 and 2002 (23,375 Option shares in the aggregate) are intended to
qualify as Incentive Stock Options under Section 422 of the Internal Revenue
Code of 1986 and are granted pursuant to the Company's 1993 Stock Option Plan.
Except for the foregoing, the Option is a non-qualified stock option not
intended to qualify under any section of the Internal Revenue Code of 1986, as
amended, and is not granted under any plan.
2. Exercise Price. The purchase price of each share of Common Stock
subject to the Option ("Option Shares") shall be $21.375.
3. Vesting and Exercisability.
(a) Options to purchase 25,000 Option Shares shall vest and
become exercisable on December 31, 1998 and Options to purchase 50,000, 60,000,
70,000 and 45,000 Option Shares shall vest and become exercisable, respectively,
on December 31st of each of the next four years. After a portion of the Option
vests and becomes exercisable, it shall remain exercisable, except as otherwise
provided herein, until the close of business on June 15, 2008 (the "Exercise
Period"). The Option may be exercised, except as provided in subparagraphs (b)
and (c), below, only if the Employee at the time of exercise is employed by the
Company and shall have been so employed continuously since the date of this
Agreement.
(b) If the Employee's employment with the Company terminates
for any reason prior to the time that the Option has been fully exercised, the
unexercised portion of the Option on the date of termination of employment
(whether exercisable or not) shall immediately expire; provided, however, that
(i) if the Employee's employment is terminated by reason of the Employee's
1
<PAGE>
disability (pursuant to Section 3.3 of the Employment Agreement) or death
(pursuant to Section 3.2 of the Employment Agreement), then the portion of the
Option which is then fully vested and exercisable may be exercised for a period
of five years from the date of such termination of employment or until the
expiration of the Exercise Period, whichever is shorter; (ii) in the event of a
"Without Cause Termination" (pursuant to Section 3.5(a) of the Employment
Agreement) or Executive terminates his employment for "Good Reason" (pursuant to
Section 3.5(b)(i)-(vi) of the Employment Agreement), then, only for purposes of
determining Employee's rights under the Option, Employee shall be considered to
be an employee of the Company for a period of 18 months after such termination
and the Options that would vest on any December 31 in such 18 month period shall
vest and become exercisable on such December 31 and, in case such 18 month
period includes any portion of a calendar year (a "Partial Year") but does not
include December 31 of such year, then one twelfth (1/12) of the Options which
would have vested on the December 31 following such 18 month period shall vest
and become exercisable on the last day of each calendar month during such 18
month period in such Partial Year, and any portion of the Option which was fully
vested and exercisable at the time of termination or which becomes exercisable
pursuant to this clause (ii) may be exercised for a period of five years from
the date of such termination of employment or until the expiration of the
Exercise Period, whichever is shorter; and (iii) in the event Executive
terminates his employment for "Good Reason" (pursuant to Section 3.5(b)(vii) of
the Employment Agreement), then the portion of the Option that would have vested
and become exercisable in accordance with paragraph 3(a) above through December
31 of the year after such termination shall immediately vest and become
exercisable as of the date of such termination and any portion of the Option
which is fully vested and exercisable may be exercised for a period of two years
from the date of such termination of employment or until the expiration of the
Exercise Period, whichever is shorter.
(c) Notwithstanding the foregoing, in the event of the
occurrence of an "Acceleration Event" as defined below, then all of the Option
vesting periods hereunder shall be accelerated, the entire Option will
immediately and entirely vest, and the Employee will have the right to
immediately purchase all Option Shares on the terms set forth in this Agreement
through the end of the Exercise Period.
4. Rights as a Stockholder. The Employee shall not have any of the
rights of a stockholder with respect to the Option Shares until such shares have
been issued after the due exercise of the Option.
5. Adjustments. In the event of a stock split or exchange, stock
dividend, combination of shares, or any other similar change in the Common Stock
of the Company as a whole, the Board of Directors of the Company shall make
equitable, proportionate adjustments in the number and kind of shares covered by
the Option and in the option price thereunder, in order to preserve the
Employee's then proportionate interest in the Company and to maintain the
aggregate option price.
6. Transferability of Option and Option Shares.
(a) The Option shall not be assignable or transferable except
in the event of the death of the Employee, in which case the transfer shall be
by will or by the laws of descent and distribution. No transfer of the Option by
the Employee by will or by the laws of descent and distribution shall be
effective to bind the Company unless the Company shall have been furnished
2
<PAGE>
with written notice thereof and a copy of the will and such other evidence as
the Company may deem necessary to establish the validity of the transfer and the
acceptance by the transferee or transferees of the terms and conditions of the
Option.
(b) The Employee hereby represents and warrants to the Company
that he is acquiring the Option for his own account and not with a view to the
distribution thereof.
(c) The Employee hereby agrees that he shall not sell,
transfer by any means or otherwise dispose of the Option Shares acquired by him
without registration under the Securities Act of 1933 ("Act"), or in the event
that they are not so registered, unless (i) an exemption from the Act is
available thereunder, (ii) the Employee has furnished the Company with notice of
such proposed transfer and (iii) the Company's legal counsel, in its reasonable
opinion, shall deem such proposed transfer to be so exempt.
7. Registration Rights. The Company hereby grants to Employee the right
to have the Option Shares registered (to the extent legally permissible) on a
registration statement on Form S-8 to be filed by the Company on or prior to
August 31, 1998 and the Company shall take such action with respect to such Form
S-8 as may be necessary so that, upon exercise, the shares of Common Stock
issued thereby will be freely transferrable (subject only to applicable volume
limitations contained in Rule 144 under the Act). Notwithstanding the foregoing,
(i) the Company shall have no obligation hereunder in connection with any such
registration statement unless the Option Shares can legally be registered
thereby and the Employee provides to the Company information with respect to his
ownership of Option Shares, manner of proposed disposition and such other
matters as the Company shall reasonably request for disclosure in the
registration statement or any amendment thereto; and (ii) the Company will not
be obligated to prepare, file or print any "reoffer prospectus" in connection
with any "control securities" or "restricted securities" as those terms are
defined in General Instruction C to Form S-8. The Company shall bear all fees,
costs and expenses incurred by it in connection with the filing with the
Securities and Exchange Commission of such registration statement.
8. Employee's Acknowledgments. The Employee hereby acknowledges that:
(a) All reports and documents required to be filed by the
Company with the Securities and Exchange Commission pursuant to the Securities
Exchange Act of 1934 within the last 12 months have been made available to the
Employee for his inspection.
(b) If he exercises the Option, he may have to bear the
economic risk of the investment in the Option Shares for an indefinite period of
time because the Option Shares may not have been registered under the Act and
cannot be sold by him unless they are registered under the Act or an exemption
therefrom is available thereunder.
(c) In his dealings with the Company, he has had both the
opportunity to ask questions of and receive answers from the officers and
directors of the Company and all persons acting on its behalf concerning the
terms and conditions of the offer made hereunder and to obtain any additional
information to the extent the Company possesses or may possess such information
or can acquire it without unreasonable effort or expense necessary to verify the
accuracy of the information obtained pursuant to subparagraph (a) above.
3
<PAGE>
(d) The Company shall place stop transfer orders with its
transfer agent against the transfer of the Option Shares in the absence of
registration under the Act or an exemption therefrom.
(e) In the absence of registration under the Act, the
certificates evidencing the Option Shares shall bear the following legend:
"The Shares represented by this certificate have been acquired
for investment and have not been registered under the
Securities Act of 1933. The shares may not be sold or
transferred in the absence of such registration or an
exemption therefrom under said Act."
9. Exercise of Option.
(a) Subject to the terms and conditions of the Agreement, the
Option may be exercised from time to time, in whole or in part, by written
notice to the Company at its principal place of business. Such notice shall
state the election to exercise the Option and the number of Option Shares in
respect to which it is being exercised, and, if the Option Shares are not then
registered for resale under the Act, such notice shall contain a representation
and agreement by the person or persons so exercising the Option that the Option
Shares are being purchased for investment and not with a view to the
distribution or resale thereof. Such notice shall be accompanied by payment of
the full purchase price of the Option Shares.
(b) Unless the Company consents to a form of "cashless"
exercise, payment of the purchase price shall be made in cash or by check, bank
draft or money order payable to the order of the Company. The Company shall
consent to Executive utilizing the appreciated value of the Option (occasioned
by a substantial increase in the market price of a share of Common Stock over
the exercise price of the Option) to pay the purchase price if the Company, in
its reasonable discretion, determines that it will not adversely affect the
Company in any way other than not receiving cash (it being understood that any
charge against the Company's earnings by virtue of the cashless exercise shall
be deemed to be an adverse effect if exercising the Option for cash would have
resulted in a lesser or no charge to earnings).
(c) The Company shall issue a certificate or certificates
evidencing the Option Shares as soon as practicable after the notice is received
and the payment has cleared the banking system. The certificate or certificates
evidencing the Option Shares shall be registered in the name of the person or
persons so exercising the Option.
(d) The Company hereby represents and warrants to the Employee
that the Option Shares, when issued and delivered by the Company to the Employee
in accordance with the terms and conditions hereof, will be duly and validly
issued and fully paid and non-assessable.
10. Withholding Taxes. Not later than the date as of which an amount
first becomes includible in the gross income of Employee for Federal income tax
purposes with respect to the Option, Employee shall pay to the Company, or make
arrangements satisfactory to the Company regarding the payment of, any Federal,
state and local taxes of any kind required by law to be withheld or paid with
4
<PAGE>
respect to such amount. The obligations of the Company pursuant to this
Agreement shall be conditional upon such payment or arrangements with the
Company and the Company shall, to the extent permitted by law, have the right to
deduct any such taxes from any payment of any kind otherwise due to the Employee
from the Company. Unless the Company consents to a form of "cashless" payment,
any required withholding tax shall be paid in cash.
11. Miscellaneous.
(a) All notices provided for in this Agreement shall be in
writing, and shall be deemed to have been duly given when delivered personally
to the party to receive the same, when transmitted by electronic means, or when
mailed first class postage prepaid, by certified mail, return receipt requested,
addressed to the party to receive the same at his or its address set forth
below, or such other address as the party to receive the same shall have
specified by written notice given in the manner provided for in this Section 11.
All notices shall be deemed to have been given as of the date of personal
delivery, transmittal or mailing thereof.
If to Employee:
Richard L. Sisisky
6676 Epping Forest Way North
Jacksonville, Florida 32217
If to the Company:
ParkerVision, Inc.
8493 Baymeadows Way
Jacksonville, Florida 32256
Attn: Chairman of the Board
(b) This Agreement sets forth the entire agreement of the
parties relating to the Option and is intended to supersede all prior
negotiations, understandings and agreements. No provisions of this Agreement may
be waived or changed except by a writing by the party against whom such waiver
or change is sought to be enforced. The failure of any party to require
performance of any provision hereof or thereof shall in no manner affect the
right at a later time to enforce such provision.
(c) All questions with respect to the construction of this
Agreement and the rights and obligations of the parties hereunder shall be
determined in accordance with the law of the State of Florida applicable to
agreements made and to be performed entirely in Florida.
(d) This Agreement shall inure to the benefit of and be
binding upon the successors and assigns of the Company. This Agreement shall not
be assignable by Employee, but shall inure to the benefit of and be binding upon
Employee's heirs and legal representatives.
(e) Should any provision of this Agreement become legally
unenforceable, no other provision of this Agreement shall be affected, and this
Agreement shall continue as if the Agreement had been executed absent the
unenforceable provision.
5
<PAGE>
(f) An "Acceleration Event" shall occur if:
(i) any "person" or "group" (within the meaning of
Sections 13(d) and 14(d)(2) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act")) becomes the "beneficial owner" (within
the meaning of Rule 13d-3 under the Exchange Act) of common stock
having thirty-five percent (35%) or more of the total voting power of
all of the Company's voting capital stock then outstanding, unless such
person or group is or includes (a) an individual who, as of the date of
this Agreement, is an executive officer of the Company and holds
beneficial ownership in excess of twenty-five percent (25%) of the
outstanding Common Stock of the Company, or an Affiliate or Associate
(within the meaning of Rule 12b-2 under the Exchange Act) of such
individual, or (b) an underwriter who obtains such thirty-five percent
(35%) interest in connection with a public offering;
(ii) a merger or consolidation of the Company other
than one resulting in the Company's voting securities outstanding
immediately prior thereto continuing to represent (either by remaining
outstanding or by being converted into voting securities of the
surviving entity) at least sixty-five percent (65%) of the combined
voting power of the voting securities of the Company and such surviving
entity outstanding immediately after such merger or consolidation; or
(iii) the sale or other disposition of all, or
substantially all, of the Company's assets, or the approval of a plan
of liquidation of the Company other than a sale to an entity which is
owned by the shareholders of the Company in substantially the same
proportion as they own the Company immediately prior to such sale.
IN WITNESS WHEREOF, the parties have executed this Agreement on the
date first above written.
PARKERVISION, INC.
By:_______________________________________
Jeffrey Parker, Chairman of the Board
and Chief Executive Officer
________________________________________
RICHARD L. SISISKY
6
<PAGE>
ACCELERATION OPTIONS
STOCK OPTION AGREEMENT
AGREEMENT dated July 23, 1998 between RICHARD L. SISISKY, residing at
6676 Epping Forest Way North, Jacksonville, Florida 32217 (the "Employee" or
"Grantee") and PARKERVISION, INC., a Florida corporation having its principal
office at 8493 Baymeadows Way, Jacksonville, Florida 32256 ("Company").
WHEREAS, on May 22, 1998, the Board of Directors of the Company
authorized the employment of the Employee pursuant to the terms of an Employment
Agreement executed simultaneously herewith ("Employment Agreement"), and the
grant to the Employee of an option to purchase an aggregate of 250,000 of the
authorized but unissued shares of the Common Stock of the Company, $.01 par
value ("Common Stock"), on the terms and conditions set forth in this Agreement;
and
WHEREAS, the Employee desires to acquire said option on the terms and
conditions set forth in this Agreement;
IT IS AGREED:
1. Grant of Option. The Company hereby grants to the Employee the right
and option to purchase all or any part of an aggregate of 250,000 shares of the
Common Stock on the terms and conditions set forth herein ("Option"). The Option
is a non-qualified stock option not intended to qualify under any section of the
Internal Revenue Code of 1986, as amended, and is not granted under any plan.
2. Exercise Price. The purchase price of each share of Common Stock
subject to the Option ("Option Shares") shall be $21.375.
3. Vesting and Exercisability.
(a) (i) The entire Option shall vest and become exercisable on
December 15, 2003, subject to accelerated vesting, as described below. After a
portion of the Option vests and becomes exercisable, it shall remain
exercisable, except as otherwise provided herein, until the close of business on
June 15, 2008 (the "Exercise Period"). The Option may be exercised, except as
provided in subparagraphs (b) and (c), below, only if the Employee at the time
of exercise is employed by the Company and shall have been so employed
continuously since the date of this Agreement.
(ii) Notwithstanding the foregoing, if the last
sales price of the Common Stock has been at least equal to the "Trigger Price"
indicated below for a period of 20 consecutive trading days during the
applicable "Year" indicated below ("Stock Price Test"), then Options to purchase
the number of "Accelerated Option Shares" indicated below shall vest and become
exercisable at the close of business on the 20th consecutive trading day:
<PAGE>
Year 1998 1999 2000 2001 2002
Trigger Price $30 $34 $38 $42 $46
Accelerated Option Shares 25,000 50,000 60,000 70,000 45,000
------ ------ ------ ------ ------
(iii) If the Accelerated Option Shares do not vest
and become exercisable as a result of the Stock Price test in any given year
("Vesting Year") then, on or prior to April 30 of the following year, the
Company's independent public accountants shall determine the increase, if any,
in the Company's "Gross Profit" (as defined below) from the year immediately
preceding the Vesting Year ("Prior Year") to the Vesting Year. "Gross Profit"
shall mean the Company's gross margin ($4,683,655 for year ended December 31,
1997), as reflected on the audited financial statements of the Company. If there
has been an increase in Gross Profit, then there shall immediately vest and
become exercisable such number of Option Shares as shall be determined by
multiplying the number of Accelerated Option Shares available for accelerated
vesting in the Vesting Year under the Stock Price Test (as indicated above), by
the percentage increase in Gross Profit; provided, however, that the number of
Option Shares so vesting shall not exceed the number of Accelerated Option
Shares which remain unvested for the Vesting Year and years subsequent (but not
prior) thereto.
(b) If the Employee's employment with the Company terminates
for any reason prior to the time that the Option has been fully exercised, the
unexercised portion of the Option on the date of termination of employment
(whether exercisable or not) shall immediately expire; provided, however, that
(i) if the Employee's employment is terminated by reason of the Employee's
disability (pursuant to Section 3.3 of the Employment Agreement) or death
(pursuant to Section 3.2 of the Employment Agreement), then the portion of the
Option which is then fully vested and exercisable may be exercised for a period
of five years from the date of such termination of employment or until the
expiration of the Exercise Period, whichever is shorter; and (ii) in the event
of a \'93Without Cause Termination\'94 (pursuant to Section 3.5(a) of the
Employment Agreement) or Executive terminates his employment for "Good Reason"
(pursuant to Section 3.5(b) of the Employment Agreement), then, only for
purposes of determining Employee's rights under the Option, Employee shall be
considered to be an employee of the Company for a period of 18 months after such
termination and the portion of the Option that would vest pursuant to paragraph
(a), above, with respect to any Vesting Year ending during such 18 month period
shall (if the conditions to vesting are satisfied) vest and become exercisable
in accordance with paragraph (a) and, in case such 18 month period includes any
portion of a calendar year (a "Partial Year") but does not include December 31
of such year, then a Partial Year Portion (as defined below) of the Option which
would vest pursuant to paragraph (a), above, with respect to the Vesting Year
ending on the December 31 following such 18 month period, shall (if the
conditions to vesting are satisfied) vest and become exercisable in accordance
with paragraph (a), and any portion of the Option which was fully vested and
exercisable at the time of termination or which becomes exercisable pursuant to
this clause (ii) may be exercised for a period of five years from the date of
such termination of employment or until the expiration of the Exercise Period,
whichever is shorter. A "Partial Year Portion" shall mean that portion of the
Option that would vest with respect to a Vesting Year determined by multiplying
the Accelerated Option Shares available for vesting during such year by a
fraction, the numerator of which is the number of whole calendar months during
the Vesting Year in which the Employee was considered to be employed by the
Company, and the denominator of which is twelve.
2
<PAGE>
(c) Notwithstanding the foregoing, in the event of the
occurrence of a "Change in Control," as defined below, then all of the Option
vesting periods hereunder shall be accelerated, the entire Option will
immediately and entirely vest, and the Employee will have the right to
immediately purchase all Option Shares on the terms set forth in this Agreement
through the end of the Exercise Period.
4. Rights as a Stockholder. The Employee shall not have any of the
rights of a stockholder with respect to the Option Shares until such shares have
been issued after the due exercise of the Option.
5. Adjustments. In the event of a stock split or exchange, stock
dividend, combination of shares, or any other similar change in the Common Stock
of the Company as a whole, the Board of Directors of the Company shall make
equitable, proportionate adjustments in the number and kind of shares covered by
the Option and in the option price thereunder, in order to preserve the
Employee's then proportionate interest in the Company and to maintain the
aggregate option price.
6. Transferability of Option and Option Shares.
(a) The Option shall not be assignable or transferable except
in the event of the death of the Employee, in which case the transfer shall be
by will or by the laws of descent and distribution. No transfer of the Option by
the Employee by will or by the laws of descent and distribution shall be
effective to bind the Company unless the Company shall have been furnished with
written notice thereof and a copy of the will and such other evidence as the
Company may deem necessary to establish the validity of the transfer and the
acceptance by the transferee or transferees of the terms and conditions of the
Option.
(b) The Employee hereby represents and warrants to the Company
that he is acquiring the Option for his own account and not with a view to the
distribution thereof.
(c) The Employee hereby agrees that he shall not sell,
transfer by any means or otherwise dispose of the Option Shares acquired by him
without registration under the Securities Act of 1933 ("Act"), or in the event
that they are not so registered, unless (i) an exemption from the Act is
available thereunder, (ii) the Employee has furnished the Company with notice of
such proposed transfer and (iii) the Company's legal counsel, in its reasonable
opinion, shall deem such proposed transfer to be so exempt.
7. Registration Rights. The Company hereby grants to Employee the right
to have the Option Shares registered (to the extent legally permissible) on a
registration statement on Form S-8 to be filed by the Company on or prior to
August 31, 1998 and the Company shall take such action with respect to such Form
S-8 as may be necessary so that, upon exercise, the shares of Common Stock
issued thereby will be freely transferrable (subject only to applicable volume
limitations contained in Rule 144 under the Act). Notwithstanding the foregoing,
(i) the Company shall have no obligation hereunder in connection with any such
registration statement unless the Option Shares can legally be registered
thereby and the Employee provides to the Company information with respect to his
ownership of Option Shares, manner of proposed disposition and such other
matters as the Company shall reasonably request for disclosure in the
3
<PAGE>
registration statement or any amendment thereto; and (ii) the Company will not
be obligated to prepare, file or print any "reoffer prospectus" in connection
with any "control securities" or "restricted securities" as those terms are
defined in General Instruction C to Form S-8. The Company shall bear all fees,
costs and expenses incurred by it in connection with the filing with the
Securities and Exchange Commission of such registration statement.
8. Employee's Acknowledgments. The Employee hereby acknowledges that:
(a) All reports and documents required to be filed by the
Company with the Securities and Exchange Commission pursuant to the Securities
Exchange Act of 1934 within the last 12 months have been made available to the
Employee for his inspection.
(b) If he exercises the Option, he may have to bear the
economic risk of the investment in the Option Shares for an indefinite period of
time because the Option Shares may not have been registered under the Act and
cannot be sold by him unless they are registered under the Act or an exemption
therefrom is available thereunder.
(c) In his dealings with the Company, he has had both the
opportunity to ask questions of and receive answers from the officers and
directors of the Company and all persons acting on its behalf concerning the
terms and conditions of the offer made hereunder and to obtain any additional
information to the extent the Company possesses or may possess such information
or can acquire it without unreasonable effort or expense necessary to verify the
accuracy of the information obtained pursuant to subparagraph (a) above.
(d) The Company shall place stop transfer orders with its
transfer agent against the transfer of the Option Shares in the absence of
registration under the Act or an exemption therefrom.
(e) In the absence of registration under the Act, the
certificates evidencing the Option Shares shall bear the following legend:
"The Shares represented by this certificate have been acquired for investment
and have not been registered under the Securities Act of 1933. The shares may
not be sold or transferred in the absence of such registration or an exemption
therefrom under said Act."
9. Exercise of Option.
(a) Subject to the terms and conditions of the Agreement, the
Option may be exercised from time to time, in whole or in part, by written
notice to the Company at its principal place of business. Such notice shall
state the election to exercise the Option and the number of Option Shares in
respect to which it is being exercised, and, if the Option Shares are not then
registered for resale under the Act, such notice shall contain a representation
and agreement by the person or persons so exercising the Option that the Option
Shares are being purchased for investment and not with a view to the
distribution or resale thereof. Such notice shall be accompanied by payment of
the full purchase price of the Option Shares.
4
<PAGE>
(b) Unless the Company consents to a form of \'93cashless\'94
exercise, payment of the purchase price shall be made in cash or by check, bank
draft or money order payable to the order of the Company. The Company shall
consent to Executive utilizing the appreciated value of the Option (occasioned
by a substantial increase in the market price of a share of Common Stock over
the exercise price of the Option) to pay the purchase price if the Company, in
its reasonable discretion, determines that it will not adversely affect the
Company in any way other than not receiving cash (it being understood that any
charge against the Company\'92s earnings by virtue of the cashless exercise
shall be deemed to be an adverse effect if exercising the Option for cash would
have resulted in a lesser or no charge to earnings).
(c) The Company shall issue a certificate or certificates
evidencing the Option Shares as soon as practicable after the notice is received
and the payment has cleared the banking system. The certificate or certificates
evidencing the Option Shares shall be registered in the name of the person or
persons so exercising the Option.
(d) The Company hereby represents and warrants to the Employee
that the Option Shares, when issued and delivered by the Company to the Employee
in accordance with the terms and conditions hereof, will be duly and validly
issued and fully paid and non-assessable.
10. Withholding Taxes. Not later than the date as of which an amount
first becomes includible in the gross income of Employee for Federal income tax
purposes with respect to the Option, Employee shall pay to the Company, or make
arrangements satisfactory to the Company regarding the payment of, any Federal,
state and local taxes of any kind required by law to be withheld or paid with
respect to such amount. The obligations of the Company pursuant to this
Agreement shall be conditional upon such payment or arrangements with the
Company and the Company shall, to the extent permitted by law, have the right to
deduct any such taxes from any payment of any kind otherwise due to the Employee
from the Company. Unless the Company consents to a form of "cashless" payment,
any required withholding tax shall be paid in cash.
11. Miscellaneous.
(a) All notices provided for in this Agreement shall be in
writing, and shall be deemed to have been duly given when delivered personally
to the party to receive the same, when transmitted by electronic means, or when
mailed first class postage prepaid, by certified mail, return receipt requested,
addressed to the party to receive the same at his or its address set forth
below, or such other address as the party to receive the same shall have
specified by written notice given in the manner provided for in this Section 11.
All notices shall be deemed to have been given as of the date of personal
delivery, transmittal or mailing thereof.
If to Employee:
Richard L. Sisisky
6676 Epping Forest Way North
Jacksonville, Florida 32217
5
<PAGE>
If to the Company:
ParkerVision, Inc.
8493 Baymeadows Way
Jacksonville, Florida 32256
Attn: Chairman of the Board
(b) This Agreement sets forth the entire agreement of the
parties relating to he Option and is intended to supersede all prior
negotiations, understandings and agreements. No provisions of this Agreement may
be waived or changed except by a writing by the party against whom such waiver
or change is sought to be enforced. The failure of any party to require
performance of any provision hereof or thereof shall in no manner affect the
right at a later time to enforce such provision.
(c) All questions with respect to the construction of this
Agreement and the rights and obligations of the parties hereunder shall be
determined in accordance with the law of the State of Florida applicable to
agreements made and to be performed entirely in Florida.
(d) This Agreement shall inure to the benefit of and be
binding upon the successors and assigns of the Company. This Agreement shall not
be assignable by Employee, but shall inure to the benefit of and be binding upon
Employee's heirs and legal representatives.
(e) Should any provision of this Agreement become legally
unenforceable, no other provision of this Agreement shall be affected, and this
Agreement shall continue as if the Agreement had been executed absent the
unenforceable provision.
(f) "Change in Control" shall occur if:
(i) any "person" or "group" (within the meaning of
Sections 13(d) and 14(d)(2) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act") becomes the "beneficial owner" (within the meaning of Rule
13d-3 under the Exchange Act) of common stock having thirty-five percent (35%)
or more of the total voting power of all of the Company's voting capital stock
then outstanding, unless such person or group is or includes (a) an individual
who, as of the date of this Agreement, is an executive officer of the Company
and holds beneficial ownership in excess of twenty-five percent (25%) of the
outstanding Common Stock of the Company, or an Affiliate or Associate (within
the meaning of Rule 12b-2 under the Exchange Act) of such individual, or (b) an
underwriter who obtains such thirty-five percent (35%) interest in connection
with a public offering;
(ii) a merger or consolidation of the Company other
than one resulting in the Company's voting securities outstanding immediately
prior thereto continuing to represent (either by remaining outstanding or by
being converted into voting securities of the surviving entity) at least
sixty-five percent (65%) of the combined voting power of the voting securities
of the Company and such surviving entity outstanding immediately after such
merger or consolidation; or
6
<PAGE>
(iii) the sale or other disposition of all, or
substantially all, of the Company's assets, or the approval of a plan of
liquidation of the Company other than a sale to an entity which is owned by the
shareholders of the Company in substantially the same proportion as they own the
Company immediately prior to such sale.
IN WITNESS WHEREOF, the parties have executed this Agreement on the
date first above written.
PARKERVISION, INC.
By: ___________________________________
Jeffrey Parker, Chairman of the Board
and Chief Executive Officer
____________________________________
RICHARD L. SISISKY
7
<PAGE>
EMPLOYMENT AGREEMENT
AGREEMENT dated July 23, 1998 between RICHARD L. SISISKY residing at
6676 Epping Forest Way North, Jacksonville, Florida 32217 ("Executive"), and
PARKERVISION, INC., a Florida corporation having its principal office at 8493
Baymeadows Way, Jacksonville, Florida 32256 ("Company").
WHEREAS, the Company and Executive reached an oral agreement on May 22,
1998 with respect to Executive's employment by the Company;
WHEREAS, Executive commenced employment with the Company on June 15,
1998; and
WHEREAS, the Company and Executive desire to evidence their agreement
in writing and to provide for the employment of Executive by the Company on the
terms set forth herein;
IT IS AGREED:
1. Employment, Duties and Acceptance
1.1 The Company confirms the employment of Executive
commencing June 15, 1998 and continuing through the date hereof. The Company
hereby employs Executive commencing July 23, 1998 as its President and Chief
Operating Officer ("COO"). Executive shall report directly to the Chairman of
the Board and Chief Executive Officer of the Company ("CEO"). All of Executive's
powers and authority in any capacity shall at all times be subject to the
direction and control of the CEO and the Company's Board of Directors.
1.2 The Board and the CEO may assign to Executive such general
management and supervisory responsibilities and executive duties for the Company
or any subsidiary of the Company, including serving as a director, as are
consistent with Executive's status as President and COO. The Company and
Executive acknowledge that Executive's primary functions and duties as President
and COO shall be the overall supervision of, and oversight over, all the
operations and employees (other than the CEO) of the Company and its
subsidiaries and divisions; provided, however, that Executive shall not
supervise or oversee the operations or employees of the Company's advanced
research and development or investor and public relations departments.
1.3 Executive accepts such employment and agrees to devote
substantially all of his business time, energies and attention to the
performance of his duties hereunder. Nothing herein shall be construed as
preventing Executive from making and supervising personal investments, provided
they will not interfere with the performance of Executive's duties hereunder or
violate the provisions of paragraph 5.4 hereof.
1.4 Promptly after the execution of this Agreement, the
Company shall expand its Board of Directors from six to seven members and elect
Executive to serve as a director until the next annual meeting of shareholders
and until his successor is duly elected and qualified.
<PAGE>
2. Compensation and Benefits
2.1 The Company shall pay to Executive a salary at the annual
rate of $250,000 during the term hereof. Executive's compensation shall be paid
in equal, periodic installments in accordance with the Company's normal payroll
procedures.
2.2 The Company shall also pay to Executive on or prior to
April 30 of each year (commencing April 30, 1999 and continuing on each April 30
thereafter) during the term of this Agreement, and on the April 30 following the
termination of Executive employment pursuant to Sections 3.2, 3.3 or 3.5 hereof
Payment Date, a bonus (Bonus) for services rendered during the Company's fiscal
year immediately preceding the Payment Date ("Bonus Year") equal to 5% of the
increase, if any, from (i) the Company's "Pre-Tax Operating Income" (as defined
below) for the Company's fiscal year immediately preceding the Bonus Year
("Prior Year") to (ii) Pre-Tax Operating Income for the Bonus Year. "Pre-Tax
Operating Income" shall mean the Company's consolidated net income before taxes,
interest, and any other charges included in the "Other Interest or Expense" line
item (or similar caption) on the Company's Income Statement, but after
depreciation and amortization, in each case without giving effect to any
extraordinary loss or gain, as determined by the Company's independent public
accountants based on the audited financial statements of the Company. When
determining the Bonus, there shall be deemed to be an "increase" in Pre-Tax
Operating Income to the extent the Pre-Tax Operating Income in the Bonus Year is
less of a negative number than the Pre-Tax Operating Income in the Prior Year.
The Bonus shall be pro-rated if Executive was not employed by the Company for
the full Bonus Year. Such pro-ration shall be accomplished by first calculating
the Bonus based on Pre-Tax Operating Income for the full Bonus Year and then
multiplying it by a fraction, the numerator of which is the number of calendar
months or portions thereof worked by Executive during the Bonus Year and the
denominator of which is 12 (the resulting product being referred to as the
"Pro-Rated Bonus").
2.3 As additional compensation for services to be rendered
by Executive hereunder:
(a) The Company hereby issues to Executive options
to purchase 250,000 shares of the Common Stock of the Company ("Common Stock")
at a price of $21.375 per share ("Vesting Options"), as evidenced by a Stock
Option Agreement of even date herewith between the Company and Executive.
Vesting Options to purchase 25,000 shares of Common Stock shall vest on December
31, 1998 and Vesting Options to purchase 50,000, 60,000, 70,000 and 45,000
shares of common Stock shall vest, respectively, on December 31st of each of the
next four years, and will remain exercisable until June 15, 2008, except as set
forth in the Stock Option Agreement.
(b) The Company also hereby issues to Executive
options to purchase an additional 250,000 shares of Common Stock at a price of
$21.375 per share ("Acceleration Options" and, together with the "Vesting
Options," the "Agreement Options"), as evidenced by a second Stock Option
Agreement of even date herewith between the Company and Executive. The
Acceleration Options will vest on December 15, 2003, but vesting shall be
accelerated based on either the Company generating certain levels of gross
profit and/or the Common Stock attaining certain price levels, and will remain
exercisable until June 15, 2008, except as set forth in the Stock Option
Agreement.
2
<PAGE>
(c) The shares of Common Stock underlying the
Agreement Options shall be included on a Registration Statement on Form S-8 to
be filed by the Company on or prior to August 31, 1998, to the extent it is
legally permissible to include such shares.
2.4 Executive shall be entitled to such medical, disability,
life insurance (of no less than $1,000,000), retirement and other benefits as
are generally afforded to other senior executives of the Company, subject to
applicable waiting periods and other conditions.
2.5 Executive shall be entitled to three weeks of vacation in
each calendar year and to a reasonable number of other days off for religious
and personal reasons (in addition to national holidays observed by the Company
generally).
2.6 The Company will pay or reimburse Executive for all
transportation, hotel and other expenses reasonably incurred by Executive on
business trips and for all other ordinary and reasonable out-of-pocket expenses
actually incurred by him in the conduct of the business of the Company against
itemized vouchers submitted with respect to any such expenses and approved in
accordance with customary procedures.
3. Term and Termination
3.1 The term of this Agreement commences as of June 15, 1998
and shall continue until December 31, 2003, unless sooner terminated as herein
provided.
3.2 If Executive dies during the term of this Agreement, this
Agreement shall thereupon terminate, except that the Company shall pay to the
legal representative of Executive's estate (i) the base salary due Executive
pursuant to paragraph 2.1 hereof through the date of Executive's death, (ii) the
Pro-Rated Bonus with respect to the Bonus Year in which the Agreement is
terminated, (iii) all valid expense reimbursements through the date of the
termination of this Agreement, and (iv) all accrued but unused vacation pay.
3.3 The Company, by notice to Executive, may terminate this
Agreement if Executive shall fail because of illness or incapacity to render,
for three consecutive months, services of the character contemplated by this
Agreement. Notwithstanding such termination, the Company shall pay to Executive
(i) the base salary due Executive pursuant to paragraph 2.1 hereof through the
date of such notice, less any amount Executive receives for such period from any
Company-sponsored or Company-paid source of insurance or disability compensation
or government program, (ii) the Pro Rated Bonus with respect to the Bonus Year
in which the Agreement is terminated, (iii) all valid expense reimbursements
through the date of the termination of this Agreement, and (iv) all accrued but
unused vacation pay.
3.4 The Company, by notice to Executive, may terminate this
Agreement for cause. As used herein, "Cause" shall mean: (a) the refusal or
failure by Executive to carry out specific directions of the Board or the CEO
which are of a material nature and consistent with his status as President and
COO, or the refusal or failure by Executive to perform a material part of
Executive's duties hereunder; (b) the commission by Executive of a material
breach of any of the provisions of this Agreement; (c) fraud or dishonest action
3
<PAGE>
by Executive in his relations with the Company or any of its subsidiaries or
affiliates, or with any customer or business contact of the Company or any of
its subsidiaries or affiliates ("dishonest" for these purposes shall mean
Executive's knowingly or recklessly making of a material misstatement or
omission for his personal benefit); or (d) the conviction of Executive of any
crime involving an act of moral turpitude. Notwithstanding the foregoing, no
"Cause" for termination shall be deemed to exist with respect to Executive's
acts described in clauses (a) or (b) above, unless the Company shall have given
written notice to Executive specifying the "Cause" with reasonable particularity
and, within ten calendar days after such notice, Executive shall not have cured
or eliminated the event or behavior giving rise to such "Cause" or, if a cure
cannot reasonably be completed within ten days, Executive shall not have
commenced and be diligently pursing such cure, which, in any event, is completed
within 30 days after such notice; provided, however, that a repeated breach
after notice and cure of any provision of clauses (a) or (b) above involving the
same or substantially similar actions or conduct shall be grounds for
termination for "Cause" without any additional notice from the Company.
Notwithstanding termination for "Cause," the Company shall pay to Executive (i)
the base salary due Executive pursuant to paragraph 2.1 hereof through the date
of such notice, less any amount Executive receives for such period from any
Company-sponsored or Company-paid source of insurance, disability compensation
or government program, (ii) all valid expense reimbursements through the date of
the termination of this Agreement, and (iii) all accrued but unused vacation
pay.
3.5 (a) The Company, upon ten days notice to Executive, may
terminate this Agreement for any reason other than pursuant to paragraphs 3.2,
3.3 or 3.4 (" Without Cause Termination").
(b) The Executive, by notice to the Company, may
terminate this Agreement if a "Good Reason" exists. For purposes of this
Agreement, "Good Reason" shall mean the occurrence of any of the following
circumstances without the Executive's prior express written consent: (i) a
substantial and material adverse change in the nature of Executive's title,
duties or responsibilities with the Company that represents a demotion from his
title, duties or responsibilities as in effect immediately prior to such change;
(ii) Executive is not nominated to serve as a director by the Company or is
removed from service as a director of the Company (other than for cause); (iii)
a material breach of this Agreement by the Company; (iv) a failure by the
Company to make any payment to Executive when due, unless the payment is not
material and is being contested by the Company, in good faith; (v) an occurrence
of an "Acceleration Event" occurs within the meaning of the Stock Option
Agreement for the Vesting Options; (vi) a liquidation, bankruptcy or
receivership of the Company; or (vii) a person other than Mr. Jeffrey Parker
becomes the CEO, other than by reason of Mr. Parker's death or disability.
Notwithstanding the foregoing, (A) any notice of termination based on
circumstances described in (v) or (vii) above must be given to the Company
within 30 days of the circumstance occurring, and (B) no Good Reason shall be
deemed to exist with respect to the Company's acts described in clauses (i),
(ii), (iii) or (iv) above, unless the Executive shall have given written notice
to the Company specifying the Good Reason with reasonable particularity and,
within ten calendar days after such notice, the Company shall not have cured or
eliminated the event or behavior giving rise to such Good Reason or, if a cure
cannot reasonably be completed within ten days, the Company shall not have
commenced and be diligently pursuing such cure, which, in any event, is
completed within 30 days after such notice; provided, however, that a repeated
breach after notice and cure of any provision of clauses (i), (ii), (iii) or
4
<PAGE>
(iv) above involving the same or substantially similar actions or conduct shall
be grounds for termination for Good Reason without any additional notice from
the Executive.
(c) In the event of a Without Cause Termination
or if Executive terminates this Agreement for Good Reason pursuant to the
provisions of this paragraph 3.5, the Company shall pay to Executive (or in the
case of his death after such termination, the legal representative of
Executive's estate or such other person or persons as Executive shall have
designated by written notice to the Company), (i) for a period of 18 months
after termination of this Agreement, all salary required under paragraph 2.1
and, to the extent legally permissible, benefits required under paragraph 2.4
hereof and (ii) the Pro-Rated Bonus with respect to the Bonus Year in which
Executive's employment is terminated.
3.6 If Executive's employment hereunder is terminated for any
reason, then Executive shall, at the Company's request, resign as a director of
the Company and all of its subsidiaries, effective upon the occurrence of such
termination.
4. Executive Indemnity
4.1 The Company agrees to indemnify Executive and hold
Executive harmless against all losses, damages, costs, expenses (including,
without limitation, reasonable attorneys' fees) and liabilities (other than
settlements to which the Company does not consent, which consent shall not be
unreasonably withheld) (collectively, "Losses") reasonably incurred by Executive
in connection with any claim, action, proceeding or investigation brought
against or involving Executive with respect to, arising out of or in any way
relating to Executive's employment with the Company or Executive's service as a
director of the Company; provided, however, that the Company shall not be
required to indemnify Executive for Losses incurred as a result of Executive's
intentional misconduct or gross negligence (other than matters where Executive
acted in good faith and in a manner he reasonably believed to be in or not
opposed to the Company's best interests). Executive shall promptly notify the
Company of any claim, action, proceeding or investigation under this paragraph
and the Company shall be entitled to participate in the defense of any such
claim, action, proceeding or investigation and, if it so chooses, to assume the
defense with counsel selected by the Company; provided that Executive shall have
the right to employ counsel to represent him (at the Company's expense) if the
representation of both the Company and Executive would be inappropriate because
of actual or potential conflicts of interest between the parties. The Company
shall not settle or compromise any claim, action, proceeding or investigation
without Executive's consent, which consent shall not be unreasonably withheld;
provided, however, that such consent shall not be required if the settlement
entails only the payment of money by the Company and either the Executive is
released from all liability at the time of the settlement or the Company fully
indemnifies Executive in connection therewith in a manner reasonably
satisfactory to Executive. The Company further agrees to advance any and all
expenses (including, without limitation, the fees and expenses of counsel)
reasonably incurred by the Executive in connection with any such claim, action,
proceeding or investigation, provided Executive first enters into an appropriate
agreement for repayment of such advances if indemnification is found not to have
been available.
5
<PAGE>
5. Protection of Confidential Information; Non-Competition
5.1 Executive acknowledges that:
(a) As a result of his employment with the Company,
Executive has obtained and will obtain secret and confidential information
concerning the business of the Company and its subsidiaries and affiliates
(referred to collectively in this paragraph 5 as the "Company"), including,
without limitation, information with respect to the Company's patents, patent
applications and other proprietary rights, trade secrets and "know-how,"
finances, and customer and client relationships ("Confidential Information").
(b) The Company will suffer substantial damage which
will be difficult to
compute if, during the period of his employment with the Company or thereafter,
Executive should enter a business competitive with the Company or divulge
Confidential Information.
(c) The provisions of this Agreement are reasonable
and necessary for the protection of the business of the Company.
5.2 Executive agrees that he will not at any time, either
during the term of this Agreement or thereafter, divulge to any person or entity
any Confidential Information obtained or learned by him as a result of his
employment with, or prior retention by, the Company, except (i) in the course of
performing his duties hereunder, (ii) with the Company's express written
consent; (iii) to the extent that any such information is in the public domain
other than as a result of Executive's breach of any of his obligations
hereunder; or (iv) where required to be disclosed by court order, subpoena or
other government process. If Executive shall be required to make disclosure
pursuant to the provisions of clause (iv) of the preceding sentence, Executive
promptly, but in no event more than three business days after learning of such
subpoena, court order, or other government process, shall notify, by personal
delivery or by electronic means, confirmed by mail, the Company and, at the
Company's expense, Executive shall: (a) take all reasonably necessary and lawful
steps required by the Company to defend against the enforcement of such
subpoena, court order or other government process, and (b) permit the Company to
intervene and participate with counsel of its choice in any proceeding relating
to the enforcement thereof.
5.3 Upon termination of his employment with the Company,
Executive will promptly deliver to the Company all memoranda, notes, records,
reports, manuals, drawings, blueprints and other documents (and all copies
thereof, including copies in electronic format or media) relating to the
business of the Company and all property associated therewith, which he may then
possess or have under his control; provided, however, that Executive shall be
entitled to retain copies of such documents reasonably necessary to document his
financial relationship (both past and future) with the Company.
5.4 During the period commencing on the date hereof and ending
on the two-year anniversary of the date Executive's employment hereunder is
terminated (except for termination by Executive for Good Reason, in which case
the period shall end on the 18-month anniversary), Executive, without the prior
written permission of the Company, shall not, anywhere in the world, (i) be
employed by, or render any services to, any person, firm or corporation engaged
in any business which is directly or indirectly in competition with the Company
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("Competitive Business"); (ii) engage in any Competitive Business for his or its
own account; (iii) be associated with or interested in any Competitive Business
as an individual, partner, shareholder, creditor, director, officer, principal,
agent, employee, trustee, consultant, advisor or in any other relationship or
capacity; (iv) employ or retain, or have or cause any other person or entity to
employ or retain, any person who was employed or retained by the Company during
the year prior to the date Executive\'92s employment is terminated; or (v)
solicit, interfere with, or endeavor to entice away from the Company, for the
benefit of a Competitive Business, any of its customers or other persons with
whom the Company has a contractual relationship. Notwithstanding the foregoing,
nothing in this agreement shall preclude Executive from (a) investing his
personal assets in the securities of any corporation or other business entity
which is engaged in a Competitive Business if such securities are traded on a
national stock exchange or in the over-the-counter market and if such investment
does not result in his beneficially owning, at any time, more than 2.0% of the
publicly-traded equity securities of such Competitive Business.
5.5 If Executive commits a breach, or threatens to commit a
breach, of any of the provisions of Sections 5.2 or 5.4, the Company shall have
the right and remedy:
(a) to have the provisions of this Agreement
specifically enforced by any court having equity jurisdiction, it being
acknowledged and agreed by Executive that the services being rendered hereunder
to the Company are of a special, unique and extraordinary character and that any
such breach or threatened breach will cause irreparable injury to the Company
and that money damages will not provide an adequate remedy to the Company; and
(b) to require Executive to account for and pay
over to the Company all monetary damages suffered by the Company as the result
of any transactions constituting a breach of any of the provisions of Sections
5.2 or 5.4, and Executive hereby agrees to account for and pay over such damages
to the Company.
Each of the rights and remedies enumerated in this Section 5.5 shall be
independent of the other, and shall be severally enforceable, and such rights
and remedies shall be in addition to, and not in lieu of, any other rights and
remedies available to the Company under law or equity.
In connection with any legal action or proceeding arising out of or
relating to this Agreement, the prevailing party in such action or proceeding
shall be entitled to be reimbursed by the other party for the reasonable
attorneys' fees and costs incurred by the prevailing party.
5.6 If any provision of Sections 5.2 or 5.4 is held to be
unenforceable because of the scope, duration or area of its applicability, the
tribunal making such determination shall have the power to modify such scope,
duration, or area, or all of them, and such provision or provisions shall then
be applicable in such modified form.
5.7 The provisions of this paragraph 5 shall survive the
termination of this Agreement for any reason.
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6. Miscellaneous Provisions
6.1 All notices provided for in this Agreement shall be in
writing, and shall be deemed to have been duly given when (i) delivered
personally to the party to receive the same, or (ii) when mailed first class
postage prepaid, by certified mail, return receipt requested, addressed to the
party to receive the same at his or its address set forth below, or such other
address as the party to receive the same shall have specified by written notice
given in the manner provided for in this Section 6.1. All notices shall be
deemed to have been given as of the date of personal delivery or mailing
thereof.
If to Executive:
Richard L. Sisisky
6676 Epping Forest Way North
Jacksonville, Florida 32217
With a copy to:
James L. Main, Esq.
Holland & Knight LLP
1 Independent Drive, Suite 2000
Jacksonville, Florida 32202
If to the Company:
ParkerVision, Inc.
8493 Baymeadows Way
Jacksonville, Florida 32256
With a copy to:
David Alan Miller, Esq.
Graubard Mollen & Miller
600 Third Avenue
New York, NY 10016
6.2 Prior to or simultaneously with commencing employment,
Executive shall execute such customary agreements regarding assignment of
inventions as are executed by the Company's employees generally.
6.3 This Agreement, the Stock Option Agreements executed
simultaneously herewith and the agreements referred to in Section 6.2 above set
forth the entire agreement of the parties relating to the employment of
Executive and are intended to supersede all prior negotiations, understandings
and agreements. No provisions of this Agreement, the Stock Option Agreements or
the agreements referred to in Section 6.2 above may be waived or changed except
by a writing by the party against whom such waiver or change is sought to be
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enforced. The failure of any party to require performance of any provision
hereof or thereof shall in no manner affect the right at a later time to enforce
such provision.
6.4 All questions with respect to the construction of this
Agreement, and the rights and obligations of the parties hereunder, shall be
determined in accordance with the law of the State of Florida applicable to
agreements made and to be performed entirely in Florida.
6.5 This Agreement shall inure to the benefit of and be
binding upon the successors and assigns of the Company. This Agreement shall not
be assignable by Executive, but shall inure to the benefit of and be binding
upon Executive's heirs and legal representatives.
6.6 Should any provision of this Agreement become legally
unenforceable, no other provision of this Agreement shall be affected, and this
Agreement shall continue as if the Agreement had been executed absent the
unenforceable provision.
6.7 If, during the term hereof, Executive is nominated to
serve as a director of the Company but fails to be elected, he shall nonetheless
be invited to attend each meeting of the Board of Directors of the Company
through the remainder of the term hereof.
IN WITNESS WHEREOF, the parties have executed this Agreement on the
date first above written.
-----------------------------------
RICHARD L. SISISKY
PARKERVISION, INC.
By:________________________________
Jeffrey Parker, Chairman of the Board
and Chief Executive Officer
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CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
As independent certified public accountants, we hereby consent to the
incorporation by reference in this registration statement of our report dated
February 9, 1998, included in ParkerVision, Inc.'s Form 10-KSB for the year
ended December 31, 1997 and to all references to our Firm included in this
registration statement.
ARTHUR ANDERSEN LLP
Jacksonville, Florida
August 26, 1998
