10.21
EMPLOYMENT AGREEMENT
AGREEMENT, effective as of March 6, 2002, between XXXXX XXXXXXXX, with
an address of 0000 Xxxxxxx Xxxx, Xxxxxxxxxx, Xxxxxxx 00000 ("Executive"), and
PARKERVISION, INC., a Florida corporation having its principle office at 0000
Xxxxxxxxxx Xxx, Xxxxxxxxxxxx, Xxxxxxx 00000 ("Company").
WHEREAS, Executive has provided his services without the benefit of a
written employment agreement; and
WHEREAS, the Company believes that Executive provides unique
management and technical services for the Company and wishes to retain the
continued services of Executive as its Chief Technical Officer ("CTO"); 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 March 6, 2002; 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 Effective as of March 6, 2002, the Company hereby agrees to the
continued employment of Executive as its CTO, and to the title of Co-Founder of
the wireless division and CTO 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 Chairman and Chief Executive Officer of the Company ("CEO").
1.2 The CEO 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 CTO and would
otherwise be consistent in stature and prestige with the responsibilities of a
CTO.
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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 the CEO's 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 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 $250,000. Executive's salary will be paid not less frequently than
every two weeks without the prior written consent of Executive. After the first
two years of the term of this Agreement, Executive's annual base rate will be
reviewed at least one month prior to the commencement of each new annual salary
period during the term hereof for purposes of determining whether the minimum
increase is sufficient, it having been agreed that the minimum annual increase
after the first two years of this Agreement will be 5%.
2.2 The Company shall also pay to Executive such bonuses as may be
determined from time to time by the CEO. The amount of annual bonus payable to
Executive may vary at the discretion of the CEO. In determining the annual bonus
to be paid to the Executive, the CEO may, among other factors they believe to be
appropriate, consider, and give varying degrees of importance to, the
Executive's contribution to the following:
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(1) growth in the Company's per share value;
(2) achievement by the Company of specific identified targets selected by
the CEO 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 CEO deems to be relevant.
(7) The Company shall have the option to adopt an Incentive Compensation
Program providing for compensation above the Executive's salary which shall
supplant any bonuses for any time period the Incentive Compensation Program is
in effect.
2.3 Executive has been granted options to purchase shares of Common Stock
under the Company's Plan as set forth in the attached schedule. The CEO may, in
his discretion and with approval of the Company's Board of Directors, 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 shall purchase (i) long term disability insurance of the amount afforded
to other senior executives of the Company except in the instance when the
Executive shall elect to pay a portion or the entirety of the long term
disability insurance and (ii) the Company shall maintain a minimum of a $1
million life insurance policy for the benefit of the Executive's heirs except
when the Executive shall elect to pay a portion or the entirety of the life
insurance policy. At Executive's option the Executive can pay to increase the
coverage of the life insurance policy beyond $1 million coverage to the extent
made available by the insurance carrier. The beneficiary of these policies and
the portion, if any, that the Executive shall pay for each policy, which will be
automatically deducted from the Executive's base salary by the Company, shall be
designated in writing by the Executive to the CEO and the Company's Chief
Accounting Officer and these policies shall be transferred to Executive or his
designees by the Company at his written request.
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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 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.
2.7 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.
2.8 The Company shall only move its executive offices if the parties agree
to such a move. Should the parties not agree, then the Company can move its
executive offices and the Company shall either provide the Executive with an
office within 30 miles of the Company's current executive offices located in
Jacksonville, Florida, or if the Company does not provide an office then the
executive shall have the right to use his home office and the Company shall also
provide secretarial assistance under this circumstance at the home office if the
Executive so desires.
3. Term and Termination.
--------------------
3.1 The term of this Agreement commences as of March 6, 2002 and shall
continue until March 6, 2006, 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 or incentive
compensation 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
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previously accrued but unpaid bonuses or incentive compensation, 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; 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 CEO 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
continuing existence of such incapacitating illness or disability.
Notwithstanding such termination, the Company 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. The Company
shall also pay to Executive all amounts owing to Executive at the time of
termination, including for previously accrued but unpaid bonuses or incentive
compensation, 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 CEO, (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 CEO 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
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termination shall be deemed to exist with respect to Executive's acts described
in clause (a) or (b) above, unless the CEO 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 CEO'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 notice from the Company. In the event of a
dispute as to the existence of suitable "cause" for termination pursuant to
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 unless he voluntarily resigns therefrom. 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 afer such notice, the
Company shall not have cured or eliminated the problem or thing giving rise to
such Good Reason; provided
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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.
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 (a) three (3) years from the date of termination or (b) through the term of
this Agreement; provided, however, that (i) a minimum payment of no less than
the average of the two prior years' bonuses, incentive compensation or
combination thereof 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; however, in the absence of being covered by reason of
employment elsewhere the Company shall pay for Executive's insurance coverage to
the maximum COBRA limits. 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 and Confidentiality.
-----------------------------------
4.1 During Executive's employment with the Company and for a period as
determined by the restrictive covenant defined below, whatever the reason for
Executive's termination of employment, Executive shall not, either directly or
indirectly, either on his own behalf or on behalf of another business, engage in
the following activities, or assist others in such activities: (a) hiring,
recruiting, or attempting to recruit for any entity which competes with the
Company in the areas of radio-based communications, studio automation and/or
webcasting ("Competing Areas"), or otherwise becoming associated in any such
business with, any person employed by the Company, at any time during the
previous twelve (12) months; (b) soliciting or accepting any business in any of
the Competing Areas (on behalf of
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anyone other than the Company) from any of the Company's current, former or
prospective accounts (a prospective account defined as any entity the Company
has actively solicited, planned to solicit, or provided services to, during
Executive's employment with the Company); or (c) entering into, engaging in,
being employed by, being connected to, or consulting for, any entity which
competes with the Company in any of the Competing Areas.
The term of the above restrictive covenant shall be calculated based
on the total of the following: (a) additional salary, bonus, incentive
compensation or any other payment which Executive receives above the amount of
his base salary during the 12 month period immediately preceding the termination
of his employment or within 10 working days thereafter, (b) gains from exercise
of any options to purchase shares of the Company which is realized during the 12
month period immediately preceding the termination of his employment, and (c)
the value of share options available for Executive to exercise on the date of
the termination of Executive's employment based on the option price and the
quoted price per share at the close of that date. The total of all of the
foregoing shall be termed herein "Excess Compensation". The term of the above
restrictive covenant shall be as follows: 1 year if Excess Compensation exceeds
2 times Executive's ending base salary, 2 years if Excess Compensation exceeds 3
times Executive's ending base salary, and 5 years if Excess Compensation exceeds
5 times Executive's ending annual base salary. Upon the termination of
Executive's employment, the Company has the option of paying Executive monies to
include as Excess Compensation for the purpose of determining the term of the
restrictive covenant as an advance against potential gains Executive may realize
as a result of his subsequent exercise of share options; such monies can be paid
in cash or in registered shares of the Company's publicly traded stock which
Executive agrees after receipt of shares to sell in the stock market as quickly
as possible but not more shares than are equal to 10% of the average daily
trading volume of the prior 10 trading days to receiving the shares of stock,
the Company agrees to pay the Executive the difference in cash should there be a
shortfall of what the Executive realizes in selling the stock in the open
market. If the Company pays such an advance, and Executive subsequently
exercises share options which realizes a gain above whatever Executive could
have realized if he had exercised his options at the close of the date of the
termination of his employment, Executive must repay to the Company the amount of
the advance or this gain, whichever is less. In the event
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that the Company chooses to issue registered shares of its stock to cover all or
part of the Excess Compensation requirement(s) for the restrictive covenant as
defined in this section, the registered shares shall be delivered as a tradable
security to the Executive no later than one hundred and twenty (120) days after
the executive's last day of employment by the Company.
4.2 The parties to this Agreement recognize that irreparable harm would
result from any breach by Executive of the covenants of this Agreement and that
monetary damages alone would not provide adequate relief for any such breach.
Accordingly, in addition to any other remedy which may be available to the
Company, if Executive breaches a restrictive covenant in this Agreement, the
parties acknowledge that injunctive relief in favor of the Company is proper.
4.3 If Executive breaches a covenant containing a specified term, the term
shall be extended by the period of time between Executive's termination of
employment with the Company and the date a court of competent jurisdiction
enters an injunction restraining further breach of the covenant.
4.4 If a court of competent jurisdiction determines that any of the
restrictions in this Agreement are overbroad, Executive shall agree to
modification of the affected restriction(s) to permit enforcement to the maximum
extent allowed by law.
4.5 A waiver of any of Executive's obligations under this Agreement or any
other modification of this Agreement shall be ineffective unless it is set forth
in writing and signed by the Company's CEO.
4.6 The parties acknowledge that the restrictive covenants in this
Agreement are essential independent elements of this Agreement and that but for
Executive agreeing to comply with them, the Company would not have employed or
have continued to employ Executive. Accordingly, the existence of any claim by
Executive against the Company, whether based on this Agreement or otherwise,
shall not operate as a defense to the Company's enforcement of any restrictive
covenant against Executive.
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4.7 Executive shall abide by paragraphs 1-7, 11-13 and 15 of the Company's
current Employee Agreement, a copy of which is attached hereto, which paragraphs
are hereby incorporated into this Agreement in their entirety.
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 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 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:
Xxxxx Xxxxxxxx
0000 Xxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxx 00000
If to Company:
Xxxxxxx Xxxxxx
ParkerVision, Inc.
0000 Xxxxxxxxxx Xxx
Xxxxxxxxxxxx, Xxxxxxx 00000
Attention: Chief Executive 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
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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, the selected provisions of the Employee Agreement
referenced in section 4.7 above , and the Stock Option Agreements attached
herein 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 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.
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5.9 IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
/s/ Xxxxx Xxxxxxxx
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Xxxxx Xxxxxxxx
PARKERVISION, INC.
By: /s/ Xxxxxxx X. Xxxxxx
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