Exhibit 10.1
EMPLOYMENT AGREEMENT
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AGREEMENT, dated as of September 7, 2000, between XXXXXXX XXXXXX, with a
business address of X.X. Xxx 00000, Xxxxxxxxxxxx, Xxxxxxx 00000 ("Executive"),
and PARKERVISION, INC., a Florida corporation having its principal office at
0000 Xxxxxxxxxx Xxx, Xxxxxxxxxxxx, Xxxxxxx 00000 ("Company").
WHEREAS, the Company and Executive had entered into an employment agreement
on July 1, 1993 which expired on December 31, 1996; and
WHEREAS, Executive has continued to provide his services since December 31,
1996 without the benefit of a written employment agreement; and
WHEREAS, the Company believes that Executive provides unique management
services for the Company and wishes to retain the continued services of
Executive as its Chairman and Chief Executive Officer; and
WHEREAS, the Company and Executive have reached an understanding with
respect to the extension of Executive's employment with the Company for a five
(5) year period commencing as of October 1, 2000; 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.
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1.1 Effective as of October 1, 2000 ("Renewal Date") the Company
hereby agrees to the continued employment of Executive as its Chairman of the
Board and Chief Executive Officer and Executive hereby accepts such continued
employment on the terms and conditions contained in the Agreement. During the
term of this Agreement, the Executive shall make himself available to the
Company to pursue the business of the Company subject to the supervision and
direction of the Board of Directors of the Company ("Board" or "Board of
Directors") of which he shall be nominated to be a member during the term
hereof.
1.2 The Board may assign the Executive such general management and
supervisory responsibilities and executive duties for the Company as are
appropriate and commensurate with Executive's position as Chairman and Chief
Executive Officer of the Company ("CEO") and would otherwise be consistent in
stature and prestige with the responsibilities of a CEO. The Executive shall
serve as Chairman of the Executive Committee of the Board (if such a committee
is established) and all other officers of the Company shall report to him and be
subject to his supervision and control.
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; provided, however, that Executive may continue to be
actively involved in eleemosynary, educational and civic activities to the
extent that such activities do not materially detract from the reasonable
performance of his duties (such material detraction to be evidenced by a
resolution approved by the majority of the Board and a written notice to
Executive, in which event Executive shall have one hundred and twenty (120) days
to reduce the level of such activities in a reasonable manner). The Company
recognizes the value to it of Executive's continued involvement in these
activities and will reimburse Executive for reasonable expenses incurred by him
in connection with such activities. Nothing herein shall be construed as
preventing Executive from (i) making and supervising investments on a personal
or family basis (including trusts, funds and investment entities in which
Executive or members of his family have an interest) and (ii) in serving on the
Board of Directors of not more than three corporations
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involved primarily in "for profit" business activities; provided, however, that
these activities do not materially interfere with the performance of his duties
hereunder or violate the provisions of Section 4.4 hereof.
2. Compensation and Benefits.
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2.1 The Company shall pay to Executive a salary at an annual base rate
of not less than $275,000 for the first two-year period during the term hereof
(October 1, 2000 - September 30, 2002), not less than $300,000 for the next
two-year period during the term hereof (October 1, 2002 - September 30, 2004)
and not less than $325,000 for the fifth year of the term hereof (October 1,
2004 - September 30, 2005). Executive's salary will be paid not less frequently
than every two weeks without the prior written consent of Executive. Executive's
annual base rate will be reviewed at least one month prior to the commencement
of each new salary period during the term hereof for purposes of determining
whether the minium increase is sufficient.
2.2 The Company shall also pay to Executive such bonuses as may be
determined from time to time by the Compensation Committee of the Board of
Directors. The amount of annual bonus payable to Executive may vary at the
discretion of the Compensation Committee of the Board of Directors. In
determining the annual bonus to be paid to the Executive, the Compensation
Committee may, among other factors they believe to be appropriate, consider, and
give varying degrees of importance to, the Executive's contribution to the
following:
(1) growth in the Company's per share value;
(2) achievement by the Company of specific identified targets
selected by the Committee from time to time;
(3) the attraction and retention of key executive personnel by the
Company;
(4) satisfaction of the Company's capital requirements;
(5) the establishment of strategic direction and significant Company
goals; and
(6) Such other criteria as the Compensation Committee deems to be
relevant.
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2.3 As additional compensation for Executive entering into this
Agreement and agreeing to be bound by its terms (including Article 4 hereof) and
for the services to be rendered by Executive hereunder, the Company hereby
issues to Executive options to purchase 500,000 shares of Common Stock under the
Company's 2000 Performance Equity Plan, which options shall vest in accordance
with this section except for certain acceleration events as set forth in the
Stock Option Agreements or this Agreement. These options ("Agreement Options")
shall be evidenced by one or more Stock Option Agreements of even date herewith
between the Company and Executive. Three hundred fifty thousand (350,000) of the
Agreement Options will have an exercise price of $41.00 per share and will vest
immediately. One hundred and fifty thousand (150,000) of the Agreement Options
will have an exercise price of $61.50 per share and will vest 30,000 on each of
the first five annual anniversaries of the Renewal Date. The Compensation
Committee may, in its discretion, grant additional options to Executive during
the term of this Agreement.
2.4 Executive shall be entitled to such insurance and other benefits
including, among others, medical and disability coverage and life insurance as
are afforded to other senior executives of the Company, subject to applicable
waiting periods and other conditions which may be generally applicable. The
Company also shall purchase (i) long term disability insurance of not less than
50% of Executive's then current annual salary and (ii) split dollar life
insurance with coverage of not less than $1.5 million. The beneficiary of these
policies shall be designated by Executive and these policies shall be
transferred to Executive or his designees by the Company at his written request.
2.5 Executive shall be entitled to vacation time and to days off for
religious and personal reasons in accordance with the Company's policy for its
senior executives.
2.6 Executive shall be entitled, at his option, to maintain a suitable
automobile for business use. The Company shall reimburse Executive for the costs
of leasing such automobile and for all other costs associated with the use of
the vehicle, including insurance costs, repairs and maintenance.
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2.7 The Company will pay or reimburse executive for all
transportation, hotel and other expenses incurred by Executive on business trips
(including first class air travel if the scheduled flight is more than two (2)
consecutive hours) 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.
2.8 Executive agrees that his services shall be rendered primarily at
the Company's executive offices which shall be located in, or within thirty (30)
miles of, the Company's current executive offices located in Jacksonville,
Florida. Notwithstanding the foregoing, Executive may maintain an office
adjacent to his residence and shall be reimbursed for all costs reasonably
related thereto (including secretarial assistance, telephone, fax, computer and
other communications equipment) by the Company.
2.9 The Company shall not move its executive offices without
Executive's written consent. If such consent is provided, the Company will
reimburse Executive for the following, which may be taxable to Executive:
(1) Usual and customary expenses incurred if Executive sells his home
himself or through a broker; however, reimbursement for the broker's commission
(if Executive utilizes the services of a broker) may not exceed six (6) percent
of the sales proceeds;
(2) Reasonable expenses incurred in moving furniture, normal household
goods and personal belongings to the new location and incidental expenses
related to the move;
(3) Reasonable expenses (including travel and hotel) while
house-hunting, including four trips to the new location with Executive's spouse
and children;
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(4) Reasonable and customary closing costs incurred in buying
Executive's new home;
(5) Reasonable temporary living expenses incurred while awaiting
occupancy in Executive's new quarters.
3. Term and Termination.
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3.1 The term of this Agreement commences as of October 1, 2000 and
shall continue until September 30, 2005, 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 the base salary due Executive
pursuant to Section 2.1 hereof through the first anniversary of Executive's
death (or the scheduled expiration under Section 3.1, if earlier than the first
anniversary date) as well as a pro rata allocation of bonus payments under
Section 2.2 based on the days of service during the year of death, and all
amounts owing to Executive at the time of termination, including for previously
accrued but unpaid bonuses, expense reimbursements and accrued but unused
vacation pay.
3.3 If Executive shall be rendered incapable by an incapacitating
illness or disability (either physical or mental) of complying with the terms,
provisions and conditions hereof on his part to be performed for a period in
excess of 180 consecutive days during any consecutive twelve (12) month period,
then the Company, at its option, may terminate this Agreement by written notice
to Executive (the "Disability Notice") delivered prior to the date Executive
resumes the rendering of services hereunder; provided, however, if requested by
Executive (or a representative thereof) such termination shall not occur until
after examination of Executive by a medical doctor (retained by the Company with
the consent of the Executive which consent shall not be unreasonably withheld)
who certifies in a written report to the Board with a copy of such report
delivered simultaneously to Executive that Executive is and shall be incapable
of performing his duties for in excess of two additional months because of the
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continuing existence of such incapacitating illness or disability.
Notwithstanding such termination, the Company (a) shall make a payment to
Executive of a pro rata allocation of payments under Section 2.2 based on the
days of service during the year in which the Disability Notice is delivered and
(b) shall pay to Executive the base salary due Executive pursuant to Section 2.1
hereof through the second anniversary of the date of such notice (the
"Disability Period"), less any amount Executive receives for such period from
any Company-sponsored or Company-paid for source of insurance, disability
compensation or governmental program. The Company shall also pay to Executive
all amounts owing to Executive at the time of termination, including for
previously accrued but unpaid bonuses, expense reimbursements and accrued but
unused vacation pay. At the Executive's request, the Company shall provide to
Executive at the Company's expense an office for his exclusive use at the
Company's principal executive offices with full time confidential secretarial
assistance and office services during the Disability Period.
3.4 The Company, by notice to Executive, may terminate this Agreement
for cause. As used herein, "cause" shall include (a) the refusal in bad faith by
Executive to carry out specific written directions of the Board, (b) intentional
fraud or dishonest action by Executive in his relations with the Company
("dishonest" for these purposes shall mean Executive's knowingly making of a
material misstatement to the Board for the purpose of obtaining direct personal
benefit); or (c) the conviction of Executive of any crime involving an act of
significant moral turpitude after appeal or the period for appeal has elapsed
without an appeal being filed by Executive. Notwithstanding the foregoing, no
"cause" for termination shall be deemed to exist with respect to Executive's
acts described in clause (a) or (b) above, unless the Board shall have given
written notice to Executive (after five (5) days advance written notice to
Executive and a reasonable opportunity to Executive to present his views with
respect to the existence of "cause"), specifying the "cause" with particularity
and , within twenty (20) business days after such notice, Executive shall not
have disputed the Board's determination or in reasonably good faith taken action
to cure or eliminate prospectively the problem or thing giving rise to such
"cause," provided, however, that a repeated breach after notice and cure, of any
provision of clause (a) or (b) above, involving the same or substantially
similar actions or conduct, shall be grounds for termination for cause upon not
less than five (5) days additional
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notice from the Company. In the event of a dispute as to the existence of
suitable "cause" for termination pursuant Section 3.4, Executive shall be
entitled to file for arbitration of such dispute in accordance with the rules of
the American Arbitration Association with one arbitrator to be selected by the
Company and one arbitrator to be selected by the Executive, and pending final
determination of such arbitration proceedings, Executive shall continue to be
compensated and shall be reimbursed for his expenses including his legal costs
in accordance with the terms of this Agreement.
3.5 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: (a) a 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; (b) a material breach of this Agreement
by the Company; (c) 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; (d) a liquidation, bankruptcy or receivership of the
Company; or (e) if Executive is at any time not a member of the Board of
Directors of the Company and a member of the Executive Committee thereof (if
such a committee exists), unless he voluntarily resigns therefrom; or (f) any
person or entity other than the Company and/or any officers or directors of the
Company as of the date of this Agreement acquires securities of the Company
other than from Executive or his affiliates (in one or more transactions) having
35% or more of the total voting power of all the Company's securities then
outstanding. Notwithstanding the foregoing, no Good Reason shall be deemed to
exist with respect to the Company's acts described in clauses (a), (b) or (c)
above, unless Executive shall have given written notice to the Company
specifying the Good Reason with reasonable particularity and, within twenty (20)
business days after such notice, the Company shall not have cured or eliminated
the problem or thing giving rise to such Good Reason; provided, however, that a
repeated breach after notice and cure of any provision of clauses (a), (b) or
(c) above involving the same or substantially similar actions or conduct, shall
be grounds for termination for Good Reason without any additional notice from
Executive.
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3.6 In the event that Executive terminates this Agreement for Good
Reason, pursuant to the provisions of paragraph 3.5, or the Company terminates
this Agreement without "Cause," as defined in paragraph 3.4, the Company shall
continue to pay to Executive (or in the case of his death, the legal
representative of Executive's estate or such other person or persons as
Executive shall have designated by written notice to the Company), all payments,
compensation and benefits required under paragraph 2 hereof through the earlier
of (y) three (3) years from the date of termination or (z) through the term of
this Agreement; provided, however, that (i) a minimum bonus of no less than the
average of the two prior year's bonuses (or the bonus paid for fiscal 2000 if
termination occurs prior to the bonus for 2001 being paid) shall be paid; and
(ii) Executive's insurance coverage shall terminate upon the Executive becoming
covered under a similar program by reason of employment elsewhere. If
Executive's employment is terminated for Good Reason or without "Cause,"
Executive shall have no duty to mitigate awards paid or payable to him pursuant
to this subsection, and any compensation paid or payable to Executive from
sources other than the Company will not offset or terminate the Company's
obligation to pay to Executive the full amounts pursuant to this subsection 3.6.
4. Non-Competition.
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4.1 During the period commencing October 1, 2000 and terminating one
year after termination of employment: (A) Executive, without the prior written
permission of the Company, shall not, anywhere in the United States of America,
(i) enter into the employ of or render any services to any person, firm or
corporation engaged in any business which is directly in competition with the
Company's principal existing business at the time of termination ("Competitive
Business"); (ii) engage 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; (iii) employ, or
have or cause any other person or entity to employ, any person who was employed
by the Company at the time of termination of Executive's employment by the
Company (other than Executive's personal secretary and assistant); or (iv)
solicit, interfere with, or endeavor to entice away from the Company, for the
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benefit of a Competitive Business, any of its customers. Notwithstanding the
foregoing, Executive shall not be precluded from investing and managing the
investment of, his or his family's 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 5% of any class of the publicly-traded equity securities of such
Competitive Business; provided, however, that for a period commencing October 1,
2000 and terminating one year after termination of Executive's employment
(except for investments in a class of securities trading on public markets),
Executive shall refer to the Company for consideration (before any other party)
any and all opportunities to acquire or purchase, or otherwise make equity or
debt investments in, companies primarily involved in a Competitive Business if
such opportunities becomes known to Executive while he is the Chairman and Chief
Executive Officer of the Company. If the Company determines not to exploit any
opportunity referred to in the foregoing sentence, the Company shall determine
what, if anything, should be done with such opportunity. Executive shall not be
entitled to any compensation, as a finder or otherwise, if either the Company or
Executive introduces such opportunity to other persons, it being understood that
all such compensation shall be paid to the Company. Notwithstanding the
foregoing, in the event the Company terminates this Agreement without "cause" or
if Executive terminates this Agreement for Good Reason under Section 3.5 hereof,
Executive's obligations under this Section 4.4 shall terminate one month
following termination.
4.2 If Executive commits a breach of any of the provisions of Section
4.1, the Company shall have the right:
(1) 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 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
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(2) to require Executive to account for and pay over to the Company
all monetary damages determined by a non-appealable decision by a court of law
to have been suffered by the Company as the result of any actions constituting a
breach of any of the provisions of Section 4.1, and Executive hereby agrees to
account for and pay over such damages to the Company (up to the maximum of all
payments made under the Agreement).
4.3 If Executive shall violate any covenant contained in Section 4.1,
the duration of such covenant so violated shall be automatically extended for a
period of time equal to the period of such violation.
4.4 If any provision of Section 4.1 is held to be unenforceable
because of the scope, duration or area of its applicability, the tribunal making
such determination shall not have the power to modify such scope, duration, or
area, or all of them and such provision or provisions shall be void ab initio.
5. Miscellaneous Provisions.
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5.1 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 prepared, 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
5.1. All notices shall be deemed to have been given as of the date of personal
delivery, transmittal or mailing thereof.
If to Executive:
Xxxxxxx Xxxxxx
X.X. Xxx 00000
Xxxxxxxxxxxx, Xxxxxxx 00000
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If to the Company:
ParkerVision, Inc.
0000 Xxxxxxxxxx Xxx
Xxxxxxxxxxxx, Xxxxxxx 00000
Attention: Chief Financial Officer
5.2 In the event of any claims, litigation or other proceedings
arising under this Agreement (including, among others, arbitration under Section
3.4), the Executive shall be reimbursed by the Company within thirty (30) days
after delivery to the Company of statements for the costs incurred by the
Executive in connection with the analysis, defense and prosecution thereof,
including reasonable attorneys' fees and expenses; provided, however, that
Executive shall reimburse the Company for all such costs if it is determined by
a non-appealable final decision of a court of law that the Executive shall have
acted in bad faith with the intent to cause material damage to the Company in
connection with any such claim, litigation or proceeding.
5.3 The Company, shall to the fullest extent permitted by law,
indemnify Executive for any liability, damages, losses, costs and expenses
arising out of alleged or actual claims (collectively, "Claims") made against
Executive for any actions or omissions as an officer and/or director of the
Company or its subsidiary. To the extent that the Company obtains director and
officers insurance coverage for any period in which Executive was an officer,
director or consultant to the Company, Executive shall be a named insured and
shall be entitled to coverage thereunder.
5.4 The provision of Article 4, Sections 5.2 and 5.3 and any
provisions relating to payments owed to Executive after termination of
employment shall survive termination of this Agreement for any reason.
5.5 This Agreement and the Stock Option Agreements executed
simultaneously herewith set forth the entire agreement of the parties relating
to the employment
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of Executive and are intended to supersede all prior negotiations,
understandings and agreements. No provisions of this Agreement or the Stock
Option Agreements 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.
5.6 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.
5.7 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.
5.8 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.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
/s/ Xxxxxxx Xxxxxx
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XXXXXXX XXXXXX
/s/ Xxxxxxx Xxxxxxx
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PARKERVISION, INC.
By: Xxxxxxx X. Xxxxxxx
President and Chief Operating Officer
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