EXHIBIT 10.9
STOCK OPTION AGREEMENT
AGREEMENT made as of November 16, 1998, by and between ParkerVision,
Inc., a Florida corporation (the "Company") with offices at 0000 Xxxxxxxxxx Xxx,
Xxxxxxxxxxxx, Xxxxxxx 00000, and ___________________(the "Consultant"), with a
business address at Xxxxx 000, 0000 Xxx Xxxx Xxxxxx, X.X., Xxxxxxxxxx, XX 00000.
WHEREAS, in consideration of Consultant providing consulting services
to the Company in conjunction with the services provided by Sterne, Kessler,
Xxxxxxxxx & Xxx, P.L.L.C., (SKGF) the Company hereby grants to the Consultant as
of November 16, 1998 (the "Grant Date"), an option (the "Option") to purchase an
aggregate of ______ shares of the authorized but unissued Common Stock of the
Company, $.01 par value (the "Common Stock"), conditioned upon the Consultant's
acceptance thereof upon the terms and conditions set forth in this Agreement;
and
WHEREAS, the Consultant desires to acquire the Option on the terms and
conditions set forth in this Agreement;
IT IS AGREED:
1. SERVICES. The Company hereby engages Consultant to provide consulting
services with respect to such matters and at such times as the Consultant and
Company shall agree from time to time, during the period commencing with the
Grant Date and ending on the third anniversary of the Grant Date.
2. GRANT OF STOCK OPTION. The Company hereby grants the Consultant the
Option to purchase all or any part of an aggregate of ______ shares of Common
Stock (the "Option Shares") on the terms and conditions set forth herein. The
Option represented hereby is not one that qualifies as an "incentive option"
under Section 422 of the Internal Revenue Code of 1986, as amended.
3. EXERCISE PRICE. The exercise price of the Option shall be $18.75 per
share, subject to adjustment as hereinafter provided.
4. EXERCISABILITY. This Option shall become exercisable as follows: on
November 16, 1999, this Option may be exercised to purchase ____ option shares,
on November 16, 2000, this Option may be exercised to purchase an additional
_____ shares and on November 16, 2001, this option may be exercised to purchase
an additional ____ shares. After a portion of this Option becomes exercisable,
it shall remain exercisable, except as otherwise provided herein, until the
close of business on the fifth anniversary of the date that portion of this
Option became exerciseable; the exercise period will terminate in all events on
the fifth anniversary of the last vesting of any of the options under this
Agreement (the "Exercise Period").
5. EFFECT OF TERMINATION OF CONSULTING SERVICES.
5.1 TERMINATION DUE TO DEATH. If Consultant's service to the Company
terminates by reason of death, the vested portion of the Option as of the date
of death may thereafter be exercised by the legal representative of the estate
or by the legatee of the Employee under the will of the Consultant, until the
end of the Exercise Period. The unvested portion of this option as of the date
of death will terminate.
5.2 OTHER TERMINATION. If the Company terminates the services of SKGF
for any reason as it determines in its sole discretion, or the Consultant fails
to provide the services requested of him hereunder, after written notice of such
failure followed by a reasonable cure period, then the unvested portion of this
option as of the date of other termination will terminate, unless the Company,
in its sole discretion, shall authorize this option to continue on the same
terms as herein stated. Once the Option becomes exercisable, the Option may not
be terminated by the Company and shall remain exercisable by Consultant or his
estate in accordance with terms herof.
6. WITHHOLDING TAX. Not later than the date as of which an amount first
becomes includible in the gross income of the Consultant for Federal income tax
purposes with respect to the Option, the Consultant 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
Consultant from the Company.
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7. ADJUSTMENTS. If and to the extent that the number of issued shares of
Common Stock shall be increased or reduced by reclassification, split-up, stock
dividend, combination of shares, or any similar structural change in the Common
Stock of the Company as a whole, the Company shall proportionally adjust the
number and kind of Option Shares and the exercise price of the Option, to such
extent and in such manner as shall as closely as possible maintain Optionee's
proportionate interest in the Company and his rights hereunder immediately prior
to such change in the Common Stock. No fractional shares of Common Stock shall
be issued as a result of any adjustment under this provision, and to the extent
any adjustment results in a fractional share of Common Stock, then the
adjustment will be to the lower full share.
8. METHOD OF EXERCISE.
8.1. NOTICE TO THE COMPANY. The Option shall be exercised in whole or
in part by written notice in substantially the form attached hereto as Exhibit A
directed to the Company at its principal place of business accompanied by full
payment as hereinafter provided of the exercise price for the number of Option
Shares specified in the notice.
8.2. DELIVERY OF OPTION SHARES. The Company shall deliver a
certificate for the Option Shares to the Consultant as soon as practicable after
payment therefor.
8.3. PAYMENT OF PURCHASE PRICE.
8.3.1. CASH PAYMENT. The Consultant shall make cash payments by
wire transfer, certified or bank check or personal check, in each case payable
to the order of the Company. The Company shall not be required to deliver
certificates for Option Shares until the Company has confirmed the receipt of
good and available funds in payment of the purchase price thereof.
8.3.2. PAYMENT PRICE OF WITHHOLDING TAX. Any required withholding
tax shall be paid in cash in accordance with Section 8.3.1.
9. NONASSIGNABILITY. The Option shall not be assignable or transferable
except by will or by the laws of descent and distribution in the event of the
death of the Consultant. No transfer of the Option by the Consultant 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
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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.
10. COMPANY REPRESENTATIONS. The Company hereby represents and warrants to
the Consultant that:
10.1 The Company, by appropriate and all required action, is duly
authorized to enter into this Agreement and consummate all of the transactions
contemplated hereunder; and
10.2 The Option Shares, when issued and delivered by the Company to
the Consultant in accordance with the terms and conditions hereof, will be duly
and validly issued and fully paid and non-assessable.
11. CONSULTANT REPRESENTATIONS. The Consultant hereby represents and
warrants to the Company that
11.1 he is acquiring the Option and will acquire the Option Shares for
his own account and not with a view towards the distribution thereof;
11.2 he has received a copy of all reports and other filings made by
the Company under the Securities Exchange Act of 1934, as amended, since January
1, 1997;
11.3 he understands that he must bear the economic risk of the
investment in the Option Shares, which cannot be sold by him unless they are
registered under the Securities Act of 1933 ("1933 Act") or an exemption
therefrom is available thereunder and that the Company is under no obligation to
register the Option Shares for sale under the 1933 Act;
11.4 he has had both the opportunity to ask questions 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
clause 11.2 above;
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11.5 he is aware that 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 1933 Act or an exemption therefrom as provided herein;
11.6 the certificates evidencing the Option Shares may bear the
following legend if the issuance of the Option Shares by the Company is not
registered under the 1933 Act:
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.
11.7 he understands and agrees that he may sell the Option Shares only
in accordance with the Company's Xxxxxxx Xxxxxxx Policy.
12. RESTRICTION ON TRANSFER OF OPTION SHARES. Anything in this Agreement
to the contrary notwithstanding, the Consultant hereby agrees that he shall not
sell, transfer by any means or otherwise dispose of the Option Shares acquired
by him unless registered under the 1933 Act, or in the event that they are not
so registered, pursuant to an exemption from the 1933 Act registration
requirements is available thereunder, and the Consultant has furnished the
Company with notice of such proposed transfer and the Company's legal counsel,
in its reasonable opinion, shall deem such proposed transfer to be so exempt.
13. MISCELLANEOUS.
13.1.NOTICES. All notices, requests, deliveries, payments, demands and
other communications which are required or permitted to be given under this
Agreement shall be in writing and shall be either delivered personally or sent
by registered or certified mail, return receipt requested, postage prepaid or by
private courier which shows the time and date of delivery to the parties at
their respective addresses set forth herein, or to such other address as either
shall have specified by notice in writing to the other. Notice shall be deemed
duly given hereunder when delivered or mailed as provided herein.
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13.2.STOCKHOLDER RIGHTS. The Consultant shall not have any of the
rights of a stockholder with respect to the Option Shares until such shares have
been issued after the exercise of the Option.
13.3.WAIVER. The waiver by any party hereto of a breach of any
provision of this Agreement shall not operate or be construed as a waiver of any
other or subsequent breach.
13.4.ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement between the parties with respect to the subject matter hereof. This
Agreement may not be amended except by a writing executed by the Consultant and
the Company.
13.5.BINDING EFFECT; SUCCESSORS. This Agreement shall inure to the
benefit of and be binding upon the parties hereto and, to the extent not
prohibited herein, their respective heirs, successors, assigns and
representatives. Nothing in this Agreement, expressed or implied, is intended to
confer on any person other than the parties hereto and as provided above, their
respective heirs, successors, assigns and representatives any rights, remedies,
obligations or liabilities.
13.6.GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the laws of the State of Florida (without regard to choice of
law provisions).
13.7.HEADINGS. The headings contained herein are for the sole purpose
of convenience of reference, and shall not in any way limit or affect the
meaning or interpretation of any of the terms or provisions of this Agreement.
IN WITNESS WHEREOF, the parties hereto have signed this Agreement as of the
day and year first above written.
PARKERVISION, INC.
By:
--------------------------------------
Xxxxxxx Xxxxxx
Chairman of the Board
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Consultant: Address:
--------------------------------- c/o Sterne, Kessler, Xxxxxxxxx & Fox, PLLC
Suite 600
0000 Xxx Xxxx Xxxxxx, X.X.
Xxxxxxxxxx, XX 00000
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EXHIBIT A
FORM OF NOTICE OF EXERCISE OF OPTION
------------------------
[Date]
ParkerVision, Inc.
0000 Xxxxxxxxxx Xxx
Xxxxxxxxxxxx, Xxxxxxx 00000
Attention: Stock Option Committee of
the Board of Directors
Re: Purchase of Option Shares
-------------------------
Gentlemen:
In accordance with my Stock Option Agreement dated as of November 16, 1998
with ParkerVision, Inc. (the "Company"), I hereby irrevocably elect to exercise
the right to purchase _________ shares of the Company's Common Stock, par value
$.01 per share ("Common Stock"), which are being purchased for investment and
not for resale.
As payment for my shares, enclosed is (check and complete applicable
box[es]):
___ a [personal check] [certified check] [bank check] payable to the order
of "ParkerVision, Inc." in the sum of $_________;
___ confirmation of wire transfer in the amount of $_____________; and/or
Kindly forward to me my certificate at your earliest convenience.
Very truly yours,
------------------------------ ------------------------------
(Signature) (Address)
------------------------------ ------------------------------
(Print Name) (Address)
------------------------------
(Social Security Number)
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