Exhibit 10.1
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STOCK PURCHASE AGREEMENT
ParkerVision, Inc.
0000 Xxxxxxxxxx Xxx
Xxxxxxxxxxxx, XX 00000
Ladies & Gentlemen:
The undersigned, _________ (the "Investor"), hereby confirms its agreement
with you as follows:
1. This Stock Purchase Agreement (the "Agreement") is made as of November 12,
2003 between ParkerVision, Inc., a Florida corporation (the "Company"), and the
Investor.
2. The Company has authorized the sale and issuance of up to 2,678,373 shares
(the "Shares") of common stock of the Company, $.01 par value per share (the
"Common Stock"), to certain investors in a private placement (the "Offering").
3. The Company and the Investor agree that the Investor will purchase from the
Company and the Company will issue and sell to the Investor ______ Shares, for a
purchase price of $8.75 per share, or an aggregate purchase price of $_____,
pursuant to the Terms and Conditions for Purchase of Shares attached hereto as
Annex I and incorporated herein by reference as if fully set forth herein (the
"Terms and Conditions"). This Stock Purchase Agreement, together with the Terms
and Conditions which are incorporated herein by reference as if fully set forth
herein, may hereinafter be referred to as the "Agreement." Unless otherwise
requested by the Investor, certificates representing the Shares purchased by the
Investor will be registered in the Investor's name and address as set forth
below.
4. The Investor represents that, except as set forth below, (a) it has had no
position, office or other material relationship within the past three years with
the Company or persons known to it to be affiliates of the Company, (b) neither
it, nor any group of which it is a member or to which it is related,
beneficially owns (including the right to acquire or vote) any securities of the
Company and (c) it has no direct or indirect affiliation or association with any
NASD member as of the date hereof. Exceptions:
_______________________________________________________________________________.
(If no exceptions, write "none." If left blank,
response will be deemed to be "none.")
Please confirm that the foregoing correctly sets forth the agreement
between us by signing in the space provided below for that purpose. By executing
this Agreement, the Investor acknowledges that the Company may use the
information in paragraph 4 above and the name and address information below in
preparation of the Registration Statement (as defined in Annex 1). This
Agreement may be executed in separate counterparts, each of which shall be
deemed to be an original and all of which taken together shall constitute one
and the same instrument.
AGREED AND ACCEPTED:
--------------------
ParkerVision, Inc. Investor: ______________________________
By: ____________________________________
_____________________________
By: Xxxxxxx X. Xxxxxxxxx Print Name: ____________________________
Title: President
Title: _________________________________
Address: _______________________________
________________________________________
Tax ID No.: ____________________________
Contact name: __________________________
Telephone: _____________________________
Name in which shares should be
registered (if different):
________________________________________
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ANNEX I
TERMS AND CONDITIONS FOR PURCHASE OF SHARES
1. AUTHORIZATION AND SALE OF THE SHARES. Subject to these Terms and
Conditions, the Company has authorized the sale of up to 2,678,373 Shares. The
Company reserves the right to increase or decrease this number.
2. AGREEMENT TO SELL AND PURCHASE THE SHARES; SUBSCRIPTION DATE.
2.1 At the Closing (as defined in Section 3), the Company will sell to
the Investor, and the Investor will purchase from the Company, upon the terms
and conditions hereinafter set forth, the number of Shares set forth in Section
3 of the Stock Purchase Agreement to which these Terms and Conditions are
attached at the purchase price set forth thereon.
2.2 The Company may enter into the same form of Stock Purchase
Agreement, including these Terms and Conditions, with other investors (the
"Other Investors") and expects to complete sales of Shares to them. (The
Investor and the Other Investors are hereinafter sometimes collectively referred
to as the "Investors," and the Stock Purchase Agreement to which these Terms and
Conditions are attached and the Stock Purchase Agreements (including attached
Terms and Conditions) executed by the Other Investors are hereinafter sometimes
collectively referred to as the "Agreements.") The Company may accept executed
Agreements from Investors for the purchase of Shares commencing upon the date on
which the Company provides the Investors with the proposed purchase price per
Share and concluding upon the date (the "Subscription Date") on which the
Company has (i) executed Agreements with Investors for the purchase of at least
1,714,286 Shares, and (ii) notified Xxxxx Fargo Securities, LLC, in its capacity
as placement agent for this transaction, in writing that it is no longer
accepting additional Agreements from Investors for the purchase of Shares. The
Company may not enter into any Agreements after the Subscription Date except in
respect of up to 392,658 Shares offered to Tyco Sigma Limited, Leucadia National
Corporation and Xxxxx Xxxxxxx pursuant to the exercise of pre-emptive rights
previously granted to such persons (the "Pre-emptive Rights").
2.3 The obligations of each Investor under any Agreement are several
and not joint with the obligations of any Other Investor, and no Investor shall
be responsible in any way for the performance of the obligations of any other
Investor under any Agreement. Nothing contained herein, and no action taken by
any Investor hereto, shall be deemed to constitute the Investors as a
partnership, an association, a joint venture or any other kind of entity, or
create a presumption that the Investors are in any way acting in concert or as a
group with respect to such obligations or the transactions contemplated hereby,
provided that such obligations or the transactions contemplated hereby may be
modified, amended or waived in accordance with Section 9 below. Each Investor
shall be entitled to independently protect and enforce its rights, including
without limitation the rights arising out of this Agreement (provided, that such
rights may be modified, amended or waived in accordance with Section 9 below),
and it shall not be necessary for any Other Investor to be joined as an
additional party in any proceeding for such purpose.
3. DELIVERY OF THE SHARES AT CLOSING. The completion of the purchase and
sale of the Shares (the "Closing") shall occur on November 14, 2003 (the
"Closing Date"), at the offices of the Company's counsel, or at such other time
as the Investor and Company may mutually agree. At the Closing, the Company
shall deliver to the Investor one or more stock certificates representing the
number of Shares set forth pursuant to Section 3 of the Stock Purchase
Agreement, each such certificate to be registered in the name of the Investor
or, if so indicated on the signature page of the Stock Purchase Agreement, in
the name of a nominee designated by the Investor.
The Company's obligation to issue the Shares to the Investor shall be
subject to the following conditions, any one or more of which may be waived by
the Company: (a) receipt by the Company of a certified or official bank check or
wire transfer of funds in the full amount of the purchase price for the Shares
being purchased hereunder as set forth in Section 3 of the Stock Purchase
Agreement; (b) completion of the purchases and sales under the Agreements with
the Other Investors; and (c) the accuracy of the representations and warranties
made by the Investors and the fulfillment of those undertakings of the Investors
to be fulfilled prior to the Closing.
The Investor's obligation to purchase the Shares shall be subject to the
following conditions, any one or more of which may be waived by the Investor:
(a) Investors shall have executed Agreements for the purchase of at least
1,714,286 Shares, (b) the representations and warranties of the Company set
forth herein shall be true and correct as of the Closing Date in all material
respects (except for representations and warranties that speak as of a specific
date, which representations and warranties shall be true and correct as of such
date) and (c) the Investor shall have received such documents as such Investor
shall reasonably have
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requested, including, a standard opinion of the Company's counsel as to the
matters set forth in Section 4.2 and as to exemption from the registration
requirements of the Securities Act of 1933, as amended (the "Securities Act"),
of the sale of the Shares.
4. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE COMPANY. The Company
hereby represents and warrants to, and covenants with, the Investor, as follows:
4.1 ORGANIZATION. The Company is duly organized and validly existing
in good standing under the laws of the jurisdiction of its organization. Each of
the Company and its Subsidiaries (as defined in Rule 405 under the Securities
Act) has full power and authority to own, operate and occupy its properties and
to conduct its business as presently conducted and as described in the documents
filed by the Company under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), since the end of its most recently completed fiscal year
through the date hereof, including, without limitation, its most recent report
on Form 10-K (the "Exchange Act Documents") and is registered or qualified to do
business and in good standing in each jurisdiction in which the nature of the
business conducted by it or the location of the properties owned or leased by it
requires such qualification and where the failure to be so qualified would have
a material adverse effect upon the condition (financial or otherwise), earnings,
business, properties or operations of the Company and its Subsidiaries,
considered as one enterprise (a "Material Adverse Effect"), and no proceeding
has been instituted in any such jurisdiction, revoking, limiting or curtailing,
or seeking to revoke, limit or curtail, such power and authority or
qualification.
4.2 DUE AUTHORIZATION AND VALID ISSUANCE. The Company has all
requisite power and authority to execute, deliver and perform its obligations
under the Agreements, and the Agreements have been duly authorized and validly
executed and delivered by the Company and constitute legal, valid and binding
agreements of the Company enforceable against the Company in accordance with
their terms, except as rights to indemnity and contribution may be limited by
state or federal securities laws or the public policy underlying such laws,
except as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' and contracting
parties' rights generally and except as enforceability may be subject to general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law). The Shares being purchased by the Investor
hereunder will, upon issuance and payment therefor pursuant to the terms hereof,
be duly authorized, validly issued, fully-paid and nonassessable.
4.3 NON-CONTRAVENTION. The execution and delivery of the Agreements,
the issuance and sale of the Shares under the Agreements, the fulfillment of the
terms of the Agreements and the consummation of the transactions contemplated
thereby will not (A) conflict with or constitute a violation of, or default
(with the passage of time or otherwise) under, (i) any material bond, debenture,
note or other evidence of indebtedness, lease, contract, indenture, mortgage,
deed of trust, loan agreement, joint venture or other agreement or instrument to
which the Company or any Subsidiary is a party or by which it or any of its
Subsidiaries or their respective properties are bound (other than notice
required to be delivered to each of Tyco Sigma Limited, Leucadia National
Corporation and Xxxxx Xxxxxxx relating to the Pre-emptive Rights in respect of
the Shares), (ii) the charter, by-laws or other organizational documents of the
Company or any Subsidiary, or (iii) any law, administrative regulation,
ordinance or order of any court or governmental agency, arbitration panel or
authority applicable to the Company or any Subsidiary or their respective
properties, except in the case of clauses (i) and (iii) for any such conflicts,
violations or defaults which are not reasonably likely to have a Material
Adverse Effect or (B) result in the creation or imposition of any lien,
encumbrance, claim, security interest or restriction whatsoever upon any of the
material properties or assets of the Company or any Subsidiary or an
acceleration of indebtedness pursuant to any obligation, agreement or condition
contained in any material bond, debenture, note or any other evidence of
indebtedness or any material indenture, mortgage, deed of trust or any other
agreement or instrument to which the Company or any Subsidiary is a party or by
which any of them is bound or to which any of the material property or assets of
the Company or any Subsidiary is subject. No consent, approval, authorization or
other order of, or registration, qualification or filing with, any regulatory
body, administrative agency, or other governmental body in the United States or
any other person is required for the execution and delivery of the Agreements
and the valid issuance and sale of the Shares to be sold pursuant to the
Agreements, other than such as have been made or obtained, and except for any
post-closing securities filings or notifications required to be made under
federal or state securities laws.
4.4 CAPITALIZATION. The capitalization of the Company as of June 30,
2003 is as set forth in the most recent applicable Exchange Act Documents,
increased as set forth in the next sentence. The Company has not issued any
capital stock since that date other than pursuant to (i) employee benefit plans
disclosed in the Exchange Act Documents, or (ii) outstanding warrants, options
or other securities disclosed in the Exchange Act Documents. The Shares to be
sold pursuant to the Agreements have been duly authorized, and when issued and
paid for in accordance with the terms of the Agreements will be duly and validly
issued, fully paid and nonassessable. The outstanding shares of capital stock of
the Company have been duly and validly issued and are fully paid and
nonassessable, have been issued in compliance with all federal and state
securities laws, and were not issued
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in violation of any preemptive rights or similar rights to subscribe for or
purchase securities. Except as set forth in or contemplated by the Exchange Act
Documents, there are no outstanding rights (including, without limitation,
preemptive rights), warrants or options to acquire, or instruments convertible
into or exchangeable for, any unissued shares of capital stock or other equity
interest in the Company or any Subsidiary, or any contract, commitment,
agreement, understanding or arrangement of any kind to which the Company is a
party or of which the Company has knowledge and relating to the issuance or sale
of any capital stock of the Company or any Subsidiary, any such convertible or
exchangeable securities or any such rights, warrants or options. Without
limiting the foregoing, no preemptive right, co-sale right, right of first
refusal, registration right, or other similar right exists with respect to the
Shares or the issuance and sale thereof. No further approval or authorization of
any stockholder, the Board of Directors of the Company or others is required for
the issuance and sale of the Shares. The Company owns the entire equity interest
in each of its Subsidiaries, free and clear of any pledge, lien, security
interest, encumbrance, claim or equitable interest, other than as described in
the Exchange Act Documents. Except as disclosed in the Exchange Act Documents,
there are no stockholders agreements, voting agreements or other similar
agreements with respect to the Common Stock to which the Company is a party or,
to the knowledge of the Company, between or among any of the Company's
stockholders.
4.5 LEGAL PROCEEDINGS. There is no material legal or governmental
proceeding pending or, to the knowledge of the Company, threatened to which the
Company or any Subsidiary is or may be a party or of which the business or
property of the Company or any Subsidiary is subject that is not disclosed in
the Exchange Act Documents.
4.6 NO VIOLATIONS. Neither the Company nor any Subsidiary is in
violation of its charter, bylaws, or other organizational document, or in
violation of any law, administrative regulation, ordinance or order of any court
or governmental agency, arbitration panel or authority applicable to the Company
or any Subsidiary, which violation, individually or in the aggregate, would be
reasonably likely to have a Material Adverse Effect, or is in default (and there
exists no condition which, with the passage of time or otherwise, would
constitute a default) in any material respect in the performance of any bond,
debenture, note or any other evidence of indebtedness in any indenture,
mortgage, deed of trust or any other material agreement or instrument to which
the Company or any Subsidiary is a party or by which the Company or any
Subsidiary is bound or by which the properties of the Company or any Subsidiary
are bound, which would be reasonably likely to have a Material Adverse Effect.
4.7 GOVERNMENTAL PERMITS, ETC. With the exception of the matters which
are dealt with separately in Sections 4.1, 4.12, 4.13 and 4.14, each of the
Company and its Subsidiaries has all necessary franchises, licenses,
certificates and other authorizations from any foreign, federal, state or local
government or governmental agency, department, or body that are currently
necessary for the operation of the business of the Company and its Subsidiaries
as currently conducted and as described in the Exchange Act Documents except
where the failure to currently possess could not reasonably be expected to have
a Material Adverse Effect.
4.8 INTELLECTUAL PROPERTY. Except as specifically disclosed in the
Exchange Act Documents (i) each of the Company and its Subsidiaries owns or
possesses sufficient rights to conduct its business in the ordinary course,
including, without limitation, rights to use all material patents, patent
rights, industry standards, trademarks, copyrights, licenses, inventions, trade
secrets, trade names and know-how (collectively, "Intellectual Property")
described or referred to in the Exchange Act Documents as owned or possessed by
it or that are necessary for the conduct of its business as now conducted or as
proposed to be conducted except where the failure to currently own or possess
would not have a Material Adverse Effect ("Company Intellectual Property"), (ii)
neither the Company nor any of its Subsidiaries is infringing, or has received
any notice of, or has any knowledge of, any asserted infringement by the Company
or any of its Subsidiaries of, any rights of a third party with respect to any
Intellectual Property that, individually or in the aggregate, would have a
Material Adverse Effect and (iii) neither the Company nor any of its
Subsidiaries has received any notice of, or has any knowledge of, infringement
by a third party with respect to any Intellectual Property rights of the Company
or of any Subsidiary that, individually or in the aggregate, would have a
Material Adverse Effect. Company Intellectual Property does not include any
Publicly Available Software and the Company has not used Publicly Available
Software in whole or in part in the development of any part of Company
Intellectual Property in a manner that may subject the Company or Company
Intellectual Property in whole or in part, to all or part of the license
obligations of any Publicly Available Software. "Publicly Available Software"
means each of (i) any software that contains, or is derived in any manner (in
whole or in part) from, any software that is distributed as free software, open
source software (e.g. Linux), or similar licensing and distribution models; and
(ii) any software that requires as a condition of use, modification, and/or
distribution of such software that such software or other software incorporated
into, derived from, or distributed with such software (a) be disclosed or
distributed in source code form; (b) be licensed for the purpose of making
derivative works; or (c) be redistributable at no or minimal charge. Publicly
Available Software includes, without limitation, software licensed or
distributed under any of the following licenses or distribution models similar
to any of the following: (a) GNU General Public License (GPL) or Lesser/Library
GPL (LGPL), (b) the
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Artistic License (e.g. PERL), (c) the Mozilla Public License, (d) the Netscape
Public License, (e) the Sun Community Source License (SCSL), the Sun Industry
Source License (SISL), and the Apache Server License.
4.9 FINANCIAL STATEMENTS. The financial statements of the Company and
the related notes contained in the Exchange Act Documents present fairly, in
accordance with generally accepted accounting principles, the financial position
of the Company and its Subsidiaries as of the dates indicated, and the results
of its operations and cash flows for the periods therein specified consistent
with the books and records of the Company and its Subsidiaries except that the
unaudited interim financial statements were or are subject to normal and
recurring year-end adjustments which are not expected to be material in amount
and adjustments required pursuant to Section 4 of the Registration Rights and
Lock-Up Agreement between the Company and SkyCross, Inc. dated as of September
19, 2003. Such financial statements (including the related notes) have been
prepared in accordance with generally accepted accounting principles applied on
a consistent basis throughout the periods therein specified, except as may be
disclosed in the notes to such financial statements, or in the case of unaudited
statements, as may be permitted by the Securities and Exchange Commission (the
"SEC") on Form 10-Q under the Exchange Act and except as disclosed in the
Exchange Act Documents. The other financial information contained in the
Exchange Act Documents has been prepared on a basis consistent with the
financial statements of the Company.
4.10 NO MATERIAL ADVERSE CHANGE. Except as disclosed in the Exchange
Act Documents, since June 30, 2003, there has not been (i) any material adverse
change in the financial condition or earnings of the Company and its
Subsidiaries considered as one enterprise, (ii) any material adverse event
affecting the Company or its Subsidiaries, (iii) any obligation, direct or
contingent, that is material to the Company and its Subsidiaries considered as
one enterprise, incurred by the Company, except obligations incurred in the
ordinary course of business, (iv) any dividend or distribution of any kind
declared, paid or made on the capital stock of the Company or any of its
Subsidiaries, or (v) any loss or damage (whether or not insured) to the physical
property of the Company or any of its Subsidiaries which has been sustained
which has a Material Adverse Effect.
4.11 DISCLOSURE. The representations and warranties of the Company
contained in this Section 4 as of the date hereof and as of the Closing Date, do
not contain any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading. Except
with respect to the material terms and conditions of the transaction
contemplated by the Agreements, which shall be publicly disclosed by the Company
pursuant to Section 16 hereof, the Company confirms that neither it nor any
person acting on its behalf has provided Investor with any information that the
Company believes constitutes material, non-public information. The Company
understands and confirms that Investor will rely on the foregoing
representations in effecting transactions in securities of the Company.
4.12 NASDAQ COMPLIANCE. The Company's Common Stock is registered
pursuant to Section 12(g) of the Exchange Act and is listed on The Nasdaq Stock
Market, Inc. National Market (the "Nasdaq National Market"), and the Company has
taken no action designed to, or likely to have the effect of, terminating the
registration of the Common Stock under the Exchange Act or de-listing the Common
Stock from the Nasdaq National Market, nor has the Company received any
notification that the SEC or the National Association of Securities Dealers,
Inc. ("NASD") is contemplating terminating such registration or listing.
4.13 REPORTING STATUS. The Company has filed in a timely manner all
documents that the Company was required to file under the Exchange Act during
the 12 months preceding the date of this Agreement. The Company is eligible to
use Form S-3 to register the Shares to be offered for the account of the
Investors. The following documents complied in all material respects with the
SEC's requirements as of their respective filing dates, and the information
contained therein as of the date thereof did not contain an untrue statement of
a material fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein in light of the circumstances under
which they were made not misleading:
(a) Annual Report on Form 10-K for the year ended December 31, 2002,
Quarterly Reports on Form 10-Q for the quarters ended June 30, 2003
and March 31, 2003, Proxy Statement on Schedule 14A filed on April 30,
2003, as amended on May 5, 2003 and Current Report on Form 8-K filed
on September 4, 2003; and
(b) all other documents, if any, filed by the Company with the SEC
during the one-year period preceding the date of this Agreement
pursuant to the reporting requirements of the Exchange Act.
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4.14 LISTING. The Company shall comply with all requirements of the
National Association of Securities Dealers, Inc. with respect to the issuance of
the Shares and the listing thereof on the Nasdaq National Market.
4.15 NO MANIPULATION OF STOCK. The Company has not taken and will not,
in violation of applicable law, take, any action designed to or that might
reasonably be expected to cause or result in stabilization or manipulation of
the price of the Common Stock to facilitate the sale or resale of the Shares.
4.16 COMPANY NOT AN "INVESTMENT COMPANY". The Company has been advised
of the rules and requirements under the Investment Company Act of 1940, as
amended (the "Investment Company Act"). To the best knowledge of the Company,
the Company is not, and immediately after receipt of payment for the Shares will
not be, an "investment company" or an entity "controlled" by an "investment
company" within the meaning of the Investment Company Act and shall conduct its
business in a manner so that it will not become subject to the Investment
Company Act.
4.17 FOREIGN CORRUPT PRACTICES. Neither the Company, nor to the best
knowledge of the Company, any agent or other person acting on behalf of the
Company, has (i) directly or indirectly, used any corrupt funds for unlawful
contributions, gifts, entertainment or other unlawful expenses related to
foreign or domestic political activity, (ii) made any unlawful payment to
foreign or domestic government officials or employees or to any foreign or
domestic political parties or campaigns from corporate funds, (iii) failed to
disclose fully any contribution made by the Company (or made by any person
acting on its behalf of which the Company is aware) which is in violation of
law, or (iv) violated in any material respect any provision of the Foreign
Corrupt Practices Act of 1977, as amended.
4.18 ACCOUNTANTS. To the Company's knowledge, PricewaterhouseCoopers,
LLP, who the Company expects will consent to the incorporation by reference of
its report dated March 27, 2003 with respect to the consolidated financial
statements of the Company included in the Company's Annual Report on Form 10-K
for the year ended December 31, 2002 into the Registration Statement (as defined
below) and the prospectus which forms a part thereof, are independent
accountants as required by the Securities Act and the rules and regulations
promulgated thereunder.
4.19 CONTRACTS. The contracts described in the Exchange Act Documents
that are material to the Company are in full force and effect on the date
hereof, and neither the Company nor, to the Company's knowledge, any other party
to such contracts is in breach of or default under any of such contracts which
would have a Material Adverse Effect.
4.20 TAXES. The Company has filed all necessary federal, state and
foreign income and franchise tax returns when due (or obtained appropriate
extensions for filing) and has paid or accrued all taxes shown as due thereon,
and the Company has no knowledge of a tax deficiency which has been or might be
asserted or threatened against it which would have a Material Adverse Effect.
4.21 TRANSFER TAXES. On the Closing Date, all stock transfer or other
taxes (other than income taxes) which are required to be paid in connection with
the sale and transfer of the Shares to be sold to the Investor hereunder will
be, or will have been, fully paid or provided for by the Company and all laws
imposing such taxes will be or will have been fully complied with.
4.22 PRIVATE OFFERING. Assuming the correctness of the representations
and warranties of the Investors set forth in Section 5 hereof, the offer and
sale of Shares hereunder is exempt from registration under the Securities Act.
The Company has not distributed and will not distribute prior to the Closing
Date any offering material in connection with this Offering and sale of the
Shares other than the documents of which this Agreement is a part or the
Exchange Act Documents. The Company has not in the past nor will it hereafter
take any action independent of the placement agent to sell, offer for sale or
solicit offers to buy any securities of the Company which would bring the offer,
issuance or sale of the Shares as contemplated by this Agreement, within the
provisions of Section 5 of the Securities Act, unless such offer, issuance or
sale was or shall be within the exemptions of Section 4 of the Securities Act.
4.23 DISCLOSURE CONTROLS AND PROCEDURES; INTERNAL CONTROLS. At all
times since first required by all applicable Exchange Act rules, the Company has
established disclosure controls and procedures (as defined in Exchange Act Rules
13a-15(e) and 15d-15(e)) for the Company and designed such disclosure controls
and procedures to ensure that material information relating to the Company,
including its Subsidiaries, is made known to the certifying officers by others
within those entities, particularly during the period in which the Form 10-K or
Form 10-Q, as the case may be, is being prepared. The Company's certifying
officers have evaluated the effectiveness of the Company's disclosure controls
and procedures as of the end
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of the period covered by each Form 10-K or Form 10-Q for which such evaluation
was required by applicable Exchange Act rules, as the case may be (each such
date, the "Evaluation Date"). The Company presented in each such Form 10-K or
Form 10-Q, as the case may be, the conclusions of the certifying officers about
the effectiveness of the disclosure controls and procedures based on their
evaluations as of the Evaluation Date. Since the most recent Evaluation Date,
there have been no significant changes in the Company's internal controls (as
such term is used in Item 307(b) of Regulation S-K under the Exchange Act) or,
to the Company's knowledge, in other factors that could significantly affect the
Company's internal controls.
4.24 TRANSACTIONS WITH AFFILIATES. Except as disclosed in the Exchange
Act Documents, none of the officers or directors of the Company is presently a
party to any transaction with the Company or any Subsidiary (other than for
services as employees, officers and directors), including any contract,
agreement or other arrangement providing for the furnishing of services to or
by, providing for rental of real or personal property to or from, or otherwise
requiring payments to or from any officer or director or, to the knowledge of
the Company, any entity in which any officer or director has a substantial
interest or is an officer, director, trustee or partner.
5. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE INVESTOR.
5.1 The Investor represents and warrants to, and covenants with, the
Company that: (i) either (A) the Investor is an "accredited investor" as defined
in Regulation D under the Securities Act and the Investor is also knowledgeable,
sophisticated and experienced in making, and is qualified to make decisions with
respect to investments in shares presenting an investment decision like that
involved in the purchase of the Shares, including investments in securities
issued by the Company and investments in comparable companies, and has
requested, received, reviewed and considered all information it deemed relevant
in making an informed decision to purchase the Shares or (B) the Company has
made available to the Investor, prior to the date hereof, the opportunity to ask
questions of and receive complete and correct answers from representatives of
the Company concerning the terms and conditions of the Shares and to obtain any
additional information relating to the financial condition and business of the
Company and the Investor, either alone or with Wellington Management Company,
LLP as its purchaser representative, has such knowledge and experience in
financial and business matters that the Investor is capable of evaluating the
merits and risks of the investment in the Shares; (ii) the Investor is acquiring
the number of Shares set forth in Section 3 of the Stock Purchase Agreement in
the ordinary course of its business and for its own account for investment only
and with no present intention of distributing any of such Shares or any
arrangement or understanding with any other persons regarding the distribution
of such Shares; (iii) the Investor will not, directly or indirectly, offer,
sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy,
purchase or otherwise acquire or take a pledge of) any of the Shares except in
compliance with the Securities Act, applicable state securities laws and the
respective rules and regulations promulgated thereunder; (iv) the Investor has
answered all questions on the Investor Questionnaire for use in preparation of
the Registration Statement and the answers thereto are true, correct and
complete as of the date hereof and will be true, correct and complete as of the
Closing Date; (v) the Investor will notify the Company immediately of any change
in any of such information until such time as the Investor has sold all of its
Shares or until the Company is no longer required to keep the Registration
Statement effective; and (vi) the Investor has, in connection with its decision
to purchase the number of Shares set forth in Section 3 of the Stock Purchase
Agreement, relied only upon the Exchange Act Documents and the representations
and warranties of the Company contained herein. The Investor understands that
its acquisition of the Shares has not been registered under the Securities Act
or registered or qualified under any state securities law in reliance on
specific exemptions therefrom, which exemptions may depend upon, among other
things, the bona fide nature of the Investor's investment intent as expressed
herein. Subject to compliance with the Securities Act, applicable securities
laws and the respective rules and regulations promulgated thereunder, nothing
contained herein shall be deemed a representation or warranty by such Investor
to hold the Shares for any period of time. Investor has completed or caused to
be completed and delivered to the Company the Investor Questionnaire, which
questionnaire is true, correct and complete in all material respects.
5.2 The Investor acknowledges, represents and agrees that no action
has been or will be taken in any jurisdiction outside the United States by the
Company that would permit an offering of the Shares, or possession or
distribution of offering materials in connection with the issue of the Shares,
in any jurisdiction outside the United States where legal action by the Company
for that purpose is required. Each Investor outside the United States will
comply with all applicable laws and regulations in each foreign jurisdiction in
which it purchases, offers, sells or delivers Shares or has in its possession or
distributes any offering material, in all cases at its own expense.
5.3 The Investor hereby covenants with the Company not to make any
sale of the Shares without complying with the provisions of this Agreement and
without causing the prospectus delivery requirement under the Securities Act to
be satisfied (whether by delivery of the Prospectus or pursuant to and in
compliance with an exemption from such requirement), and the Investor
acknowledges that the certificates evidencing the Shares will be imprinted with
a legend that prohibits their
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transfer except in accordance therewith. The Investor acknowledges that there
may occasionally be times when the Company determines that it must suspend the
use of the Prospectus forming a part of the Registration Statement, as set forth
in Section 7.2(c).
5.4 The Investor further represents and warrants to, and covenants
with, the Company that (i) the Investor has full right, power, authority and
capacity to enter into this Agreement and to consummate the transactions
contemplated hereby and has taken all necessary action to authorize the
execution, delivery and performance of this Agreement, and (ii) this Agreement
constitutes a valid and binding obligation of the Investor enforceable against
the Investor in accordance with its terms, except as enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting creditors' and contracting parties' rights generally and
except as enforceability may be subject to general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law) and except as the indemnification agreements of the Investors
herein may be legally unenforceable.
5.5 Investor will not use any of the restricted Shares acquired
pursuant to this Agreement to cover any short position in the Common Stock of
the Company if doing so would be in violation of applicable securities laws and
otherwise will comply with federal securities laws in the holding and sale of
the Shares.
5.6 The Investor understands that nothing in the Exchange Act
Documents, this Agreement or any other materials presented to the Investor in
connection with the purchase and sale of the Shares constitutes legal, tax or
investment advice. The Investor has consulted such legal, tax and investment
advisors as it, in its sole discretion, has deemed necessary or appropriate in
connection with its purchase of Shares.
5.7 The Company acknowledges and agrees that Investor does not make or
has not made any representations or warranties with respect to the transactions
contemplated hereby other than those specifically set forth in Sections 5 and
16(a) of this Agreement, or in the Investor Questionnaire.
5.8 The Investor hereby acknowledges that the Shares purchased
pursuant to this Agreement are being purchased in full satisfaction of the
Investor's pre-emptive rights pursuant to Section 8 of the Subscription
Agreement between the Investor and the Company dated March 26, 2003, in respect
of the Shares sold by the Company pursuant to the Agreements and hereby waives
its notice right pursuant to such provision in respect of the Shares sold by the
Company pursuant to the Agreements.
6. SURVIVAL OF REPRESENTATIONS, WARRANTIES AND AGREEMENTS. Notwithstanding
any investigation made by any party to this Agreement, all covenants,
agreements, representations and warranties made by the Company and the Investor
herein shall survive the execution of this Agreement, the delivery to the
Investor of the Shares being purchased and the payment therefor.
7. REGISTRATION OF THE SHARES; COMPLIANCE WITH THE SECURITIES ACT.
7.1 REGISTRATION PROCEDURES AND OTHER MATTERS. The Company shall:
(a) subject to receipt of necessary information from the
Investors after prompt request from the Company to the Investors to provide such
information, prepare and file with the SEC, within 15 days after the Closing
Date, a registration statement on Form S-3 (the "Registration Statement") to
enable the resale of the Shares by the Investors from time to time through the
automated quotation system of the Nasdaq National Market or in
privately-negotiated transactions;
(b) subject to receipt of necessary information from the
Investors after prompt request from the Company to the Investors to provide such
information, use its reasonable commercial efforts to cause the Registration
Statement to become effective on or prior to February 14, 2004;
(c) use its reasonable commercial efforts to prepare and file
with the SEC such amendments and supplements to the Registration Statement and
the Prospectus used in connection therewith as may be necessary to keep the
Registration Statement current, effective and free from any material
misstatement or omission to state a material fact for a period not exceeding,
with respect to each Investor's Shares purchased hereunder, the earlier of (i)
the second anniversary of the Closing Date, (ii) the date on which the Investor
may sell all Shares then held by the Investor without restriction by the volume
limitations of Rule 144(e) of the Securities Act, or (iii) such time as all
Shares purchased by such Investor in this Offering have been sold pursuant to a
registration statement;
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(d) furnish to the Investor with respect to the Shares registered
under the Registration Statement such number of copies of the Registration
Statement, Prospectuses and Preliminary Prospectuses in conformity with the
requirements of the Securities Act and such other documents as the Investor may
reasonably request, in order to facilitate the public sale or other disposition
of all or any of the Shares by the Investor; provided, however, that the
obligation of the Company to deliver copies of Prospectuses or Preliminary
Prospectuses to the Investor shall be subject to the receipt by the Company of
reasonable assurances from the Investor that the Investor will comply with the
applicable provisions of the Securities Act and of such other securities or blue
sky laws as may be applicable in connection with any use of such Prospectuses or
Preliminary Prospectuses;
(e) file documents required of the Company for normal blue sky
clearance in states specified in writing by the Investor and use its reasonable
commercial efforts to maintain such blue sky qualifications during the period
the Company is required to maintain the effectiveness of the Registration
Statement pursuant to Section 7.1(c); provided, however, that the Company shall
not be required to qualify to do business or consent to service of process in
any jurisdiction in which it is not now so qualified or has not so consented;
(f) bear all expenses in connection with the procedures in
paragraph (a) through (e) of this Section 7.1 (other than underwriting discounts
or commissions, brokers' fees and similar selling expenses, and any other fees
or expenses incurred by the Investor, including attorney fees of the Investor)
and the registration of the Shares pursuant to the Registration Statement; and
(g) advise the Investor, promptly after it shall receive notice
or obtain knowledge of the issuance of any stop order by the SEC delaying or
suspending the effectiveness of the Registration Statement or of the initiation
or threat of any proceeding for that purpose; and it will promptly use its
reasonable commercial efforts to prevent the issuance of any stop order or to
obtain its withdrawal at the earliest possible moment if such stop order should
be issued.
Notwithstanding anything to the contrary herein, the Registration Statement
shall cover only the Shares. In no event at any time before the Registration
Statement becomes effective with respect to the Shares shall the Company
publicly announce or file any other registration statement, other than
registrations on Form S-8, without the prior written consent of a majority in
interest of the Investors.
The Company understands that the Investor disclaims being an underwriter,
but if the SEC deems the Investor to be an underwriter the Company shall not be
relieved of any obligations it has hereunder; PROVIDED, HOWEVER that if the
Company receives notification from the SEC that the Investor is deemed an
underwriter, then the period by which the Company is obligated to submit an
acceleration request to the SEC shall be extended to the earlier of (i) the 90th
day after such SEC notification, or (ii) 120 days after the initial filing of
the Registration Statement with the SEC.
7.2 TRANSFER OF SHARES AFTER REGISTRATION; SUSPENSION.
(a) The Investor agrees that it will not effect any disposition
of the Shares or its right to purchase the Shares that would constitute a sale
within the meaning of the Securities Act except as contemplated in the
Registration Statement referred to in Section 7.1 and as described below or as
otherwise permitted by law, and that it will promptly notify the Company of any
changes in the information set forth in the Registration Statement regarding the
Investor or its plan of distribution.
(b) Except in the event that paragraph (c) below applies, the
Company shall (i) if deemed necessary by the Company, prepare and file from time
to time with the SEC a post-effective amendment to the Registration Statement or
a supplement to the related Prospectus or a supplement or amendment to any
document incorporated therein by reference or file any other required document
so that such Registration Statement will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, and so that, as
thereafter delivered to purchasers of the Shares being sold thereunder, such
Prospectus will not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading; (ii) provide the Investor copies of any documents filed pursuant
to Section 7.2(b)(i) as the Investor may reasonably request; and (iii) inform
each Investor that the Company has complied with its obligations in Section
7.2(b)(i) (or that, if the Company has filed a post-effective amendment to the
Registration Statement which has not yet been declared effective, the Company
will notify the Investor to that effect, will use its reasonable commercial
efforts to secure the effectiveness of such post-effective amendment as promptly
as possible and will promptly notify the Investor pursuant to Section 7.2(b)(i)
hereof when the amendment has become effective).
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(c) Subject to paragraph (d) below, in the event (i) of any
request by the SEC or any other federal or state governmental authority during
the period of effectiveness of the Registration Statement for amendments or
supplements to a Registration Statement or related Prospectus or for additional
information; (ii) of the issuance by the SEC or any other federal or state
governmental authority of any stop order suspending the effectiveness of a
Registration Statement or the initiation of any proceedings for that purpose;
(iii) of the receipt by the Company of any notification with respect to the
suspension of the qualification or exemption from qualification of any of the
Shares for sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose; or (iv) of any event or circumstance which, upon
the advice of its counsel, necessitates the making of any changes in the
Registration Statement or Prospectus, or any document incorporated or deemed to
be incorporated therein by reference, so that, in the case of the Registration
Statement, it will not contain any untrue statement of a material fact or any
omission to state a material fact required to be stated therein or necessary to
make the statements therein not misleading, and that in the case of the
Prospectus, it will not contain any untrue statement of a material fact or any
omission to state a material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading; then the Company shall deliver a certificate in
writing to the Investor (the "Suspension Notice") to the effect of the foregoing
and, upon receipt of such Suspension Notice, the Investor will refrain from
selling any Shares pursuant to the Registration Statement (a "Suspension") until
the Investor's receipt of copies of a supplemented or amended Prospectus
prepared and filed by the Company, or until it is advised in writing by the
Company that the current Prospectus may be used, and has received copies of any
additional or supplemental filings that are incorporated or deemed incorporated
by reference in any such Prospectus. In the event of any Suspension, the Company
will use its reasonable commercial efforts to cause the use of the Prospectus so
suspended to be resumed as soon as reasonably practicable within 20 business
days after the delivery of a Suspension Notice to the Investor. In addition to
and without limiting any other remedies (including, without limitation, at law
or at equity) available to the Investor, the Investor shall be entitled to
specific performance in the event that the Company fails to comply with the
provisions of this Section 7.2(c).
(d) Notwithstanding the foregoing paragraphs of this Section 7.2,
the Investor shall not be prohibited from selling Shares under the Registration
Statement as a result of Suspensions on more than two occasions of not more than
30 days each in any twelve month period, unless, in the good faith judgment of
the Company's Board of Directors, upon the written opinion of counsel of the
Company, the sale of Shares under the Registration Statement in reliance on this
paragraph 7.2(d) would be reasonably likely to cause a violation of the
Securities Act or the Exchange Act and result in liability to the Company.
(e) Provided that a Suspension is not then in effect, the
Investor may sell Shares under the Registration Statement, provided that it
arranges for delivery of a current Prospectus to the transferee of such Shares.
Upon receipt of a request therefor, the Company has agreed to provide an
adequate number of current Prospectuses to the Investor and to supply copies to
any other parties requiring such Prospectuses.
(f) In the event of a sale of Shares by the Investor pursuant to
the Registration Statement, the Investor must also deliver to the Company's
transfer agent, with a copy to the Company, a Certificate of Subsequent Sale
substantially in the form attached hereto as EXHIBIT A, so that the Shares may
be properly transferred.
7.3 INDEMNIFICATION. For the purpose of this Section 7.3:
(i) the term "Selling Stockholder" means the Investor and any
affiliate of such Investor;
(ii) the term "Registration Statement" shall include the Prospectus in
the form first filed with the SEC pursuant to Rule 424(b) of the Securities Act
or filed as part of the Registration Statement at the time of effectiveness if
no Rule 424(b) filing is required, and any exhibit, supplement or amendment
included in or relating to the Registration Statement referred to in Section
7.1; and
(iii) the term "Untrue Statement" means any untrue statement or
alleged untrue statement, or any omission or alleged omission to state in the
Registration Statement a material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
(a) The Company agrees to indemnify and hold harmless each
Selling Stockholder from and against any losses, claims, damages or liabilities
to which such Selling Stockholder may become subject (under the Securities Act
or otherwise) insofar as such losses, claims, damages or liabilities (or actions
or proceedings in respect thereof) arise out of, or are based upon (i) any
breach of the representations or warranties of the Company contained herein or
failure to comply with
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the covenants and agreements of the Company contained herein, (ii) any Untrue
Statement, or (iii) any failure by the Company to fulfill any undertaking
included in the Registration Statement as amended or supplemented from time to
time, and the Company will reimburse such Selling Stockholder for any reasonable
legal or other expenses reasonably incurred in investigating, defending or
preparing to defend any such action, proceeding or claim, or preparing to defend
any such action, proceeding or claim, PROVIDED, HOWEVER, that the Company shall
not be liable in any such case to the extent that such loss, claim, damage or
liability arises out of, or is based upon, an Untrue Statement made in reliance
upon and in conformity with written information furnished to the Company by or
on behalf of such Selling Stockholder specifically for use in preparation of the
Registration Statement, as amended or supplemented from time to time (including,
without limitation, information set forth in the Investor Questionnaire), or the
failure of such Selling Stockholder to comply with its covenants and agreements
contained in Section 7.2 hereof respecting sale of the Shares or any statement
or omission in any Prospectus that is corrected in any subsequent Prospectus
that was delivered to the Selling Stockholder prior to the pertinent sale or
sales by the Selling Stockholder. The Company shall reimburse each Selling
Stockholder for the indemnifiable amounts provided for herein on demand as such
expenses are incurred.
(b) The Investor agrees to indemnify and hold harmless the
Company (and each person, if any, who controls the Company within the meaning of
Section 15 of the Securities Act, each officer of the Company who signs the
Registration Statement and each director of the Company) from and against any
losses, claims, damages or liabilities to which the Company (or any such
officer, director or controlling person) may become subject (under the
Securities Act or otherwise), insofar as such losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) arise out of, or are
based upon, (i) any failure to comply with the covenants and agreements
contained in Section 7.2 hereof respecting sale of the Shares, or (ii) any
Untrue Statement if such Untrue Statement was made in reliance upon and in
conformity with written information furnished by or on behalf of the Investor
specifically for use in preparation of the Registration Statement, as amended or
supplemented from time to time (including, without limitation, information set
forth in the Investor Questionnaire), and the Investor will reimburse the
Company (or such officer, director or controlling person), as the case may be,
for any legal or other expenses reasonably incurred in investigating, defending
or preparing to defend any such action, proceeding or claim. The Investor shall
reimburse the Company or such officer, director or controlling person, as the
case may be, for the indemnifiable amounts provided for herein on demand as such
expenses are incurred. Notwithstanding the foregoing, the Investor's aggregate
obligation to indemnify the Company and such officers, directors and controlling
persons shall be limited to the net amount received by the Investor from the
sale of the Shares.
(c) Promptly after receipt by any indemnified person of a notice
of a claim or the beginning of any action in respect of which indemnity is to be
sought against an indemnifying person pursuant to this Section 7.3, such
indemnified person shall notify the indemnifying person in writing of such claim
or of the commencement of such action, but the omission to so notify the
indemnifying person will not relieve it from any liability which it may have to
any indemnified person under this Section 7.3 (except to the extent that such
omission materially and adversely affects the indemnifying person's ability to
defend such action) or from any liability otherwise than under this Section 7.3.
Subject to the provisions hereinafter stated, in case any such action shall be
brought against an indemnified person, the indemnifying person shall be entitled
to participate therein, and, to the extent that it shall elect by written notice
delivered to the indemnified person promptly after receiving the aforesaid
notice from such indemnified person, shall be entitled to assume the defense
thereof, with counsel reasonably satisfactory to such indemnified person. After
notice from the indemnifying person to such indemnified person of its election
to assume the defense thereof, such indemnifying person shall not be liable to
such indemnified person for any legal expenses subsequently incurred by such
indemnified person in connection with the defense thereof, PROVIDED, HOWEVER,
that if there exists or shall exist a conflict of interest that would make it
inappropriate, in the opinion of counsel to the indemnified person, for the same
counsel to represent both the indemnified person and such indemnifying person or
any affiliate or associate thereof, the indemnified person shall be entitled to
retain its own counsel at the expense of such indemnifying person; provided,
however, that no indemnifying person shall be responsible for the fees and
expenses of more than one separate counsel (together with appropriate local
counsel) for all indemnified parties. In no event shall any indemnifying person
be liable in respect of any amounts paid in settlement of any action unless the
indemnifying person shall have approved the terms of such settlement; PROVIDED
that such consent shall not be unreasonably withheld or delayed. No indemnifying
person shall, without the prior written consent of the indemnified person,
effect any settlement of any pending or threatened proceeding in respect of
which any indemnified person is or could have been a party and indemnification
could have been sought hereunder by such indemnified person, unless such
settlement includes an unconditional release of such indemnified person from all
liability on claims that are the subject matter of such proceeding.
(d) If the indemnification provided for in this Section 7.3 is
unavailable to or insufficient to hold harmless an indemnified person under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) referred to therein,
then each indemnifying person shall contribute to the amount paid or payable by
such indemnified person as a result of such losses, claims, damages or
liabilities (or actions in respect thereof) in such
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proportion as is appropriate to reflect the relative fault of the Company on the
one hand and the Investor, as well as any other Selling Shareholders under such
Registration Statement on the other in connection with the statements or
omissions or other matters which resulted in such losses, claims, damages or
liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative fault shall be determined by reference
to, among other things, in the case of an Untrue Statement, whether the Untrue
Statement relates to information supplied by the Company on the one hand or an
Investor or other Selling Shareholder on the other and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such Untrue Statement. The Company and the Investor agree that it would not be
just and equitable if contribution pursuant to this subsection (d) were
determined by pro rata allocation (even if the Investor and other Selling
Shareholders were treated as one entity for such purpose) or by any other method
of allocation which does not take into account the equitable considerations
referred to above in this subsection (d). The amount paid or payable by an
indemnified person as a result of the losses, claims, damages or liabilities (or
actions in respect thereof) referred to above in this subsection (d) shall be
deemed to include any legal or other expenses reasonably incurred by such
indemnified person in connection with investigating or defending any such action
or claim. Notwithstanding the provisions of this subsection (d), the Investor
shall not be required to contribute any amount in excess of the amount by which
the net amount received by the Investor from the sale of the Shares to which
such loss relates exceeds the amount of any damages which such Investor has
otherwise been required to pay by reason of such Untrue Statement. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. The Investor's obligations in
this subsection to contribute shall be in proportion to its Investor sale of
Shares to which such loss relates and shall not be joint with any other Selling
Shareholders.
(e) The parties to this Agreement hereby acknowledge that they
are sophisticated business persons who were represented by counsel during the
negotiations regarding the provisions hereof including, without limitation, the
provisions of this Section 7.3, and are fully informed regarding said
provisions. They further acknowledge that the provisions of this Section 7.3
fairly allocate the risks in light of the ability of the parties to investigate
the Company and its business in order to assure that adequate disclosure is made
in the Registration Statement as required by the Securities Act and the Exchange
Act. The parties are advised that federal or state public policy as interpreted
by the courts in certain jurisdictions may be contrary to certain of the
provisions of this Section 7.3, and the parties hereto hereby expressly waive
and relinquish any right or ability to assert such public policy as a defense to
a claim under this Section 7.3 and further agree not to attempt to assert any
such defense.
7.4 TERMINATION OF CONDITIONS AND OBLIGATIONS. The conditions
precedent imposed by Section 5 or this Section 7 upon the transferability of the
Shares shall cease and terminate as to any particular number of the Shares when
such Shares shall have been effectively registered under the Securities Act and
sold or otherwise disposed of in accordance with the intended method of
disposition set forth in the Registration Statement covering such Shares or at
such time as an opinion of counsel reasonably satisfactory to the Company shall
have been rendered to the effect that such conditions are not necessary in order
to comply with the Securities Act.
7.5 INFORMATION AVAILABLE. So long as the Registration Statement is
effective covering the resale of Shares owned by the Investor, the Company will
furnish to the Investor:
(a) as soon as practicable after it is available, one copy of (i)
its Annual Report to Stockholders (which Annual Report shall contain financial
statements audited in accordance with generally accepted accounting principles
by a national firm of certified public accountants), (ii) its Annual Report on
Form 10-K and (iii) its Quarterly Reports on Form 10-Q (the foregoing, in each
case, excluding exhibits);
(b) upon the request of the Investor, all exhibits excluded by
the parenthetical to subparagraph (a) of this Section 7.5 as filed with the SEC
and all other information that is made available to shareholders; and
(c) upon the reasonable request of the Investor, the President or
the Chief Financial Officer of the Company (or an appropriate designee thereof)
will meet with the Investor or a representative thereof at the Company's
headquarters to discuss all information relevant for disclosure in the
Registration Statement covering the Shares and will otherwise cooperate with any
Investor conducting an investigation for the purpose of reducing or eliminating
such Investor's exposure to liability under the Securities Act, including the
reasonable production of information at the Company's headquarters; provided,
that the Company shall not be required to disclose any confidential information
to or meet at its headquarters with any Investor until and unless the Investor
shall have entered into a confidentiality agreement in form and substance
reasonably satisfactory to the Company with the Company with respect thereto.
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7.6 LEGEND; RESTRICTIONS ON TRANSFER. The certificate or certificates
for the Shares (and any securities issued in respect of or exchange for the
Shares) shall be subject to a legend or legends restricting transfer under the
Securities Act and referring to restrictions on transfer herein, such legend to
be substantially as follows:
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933 (THE "ACT") AND MAY NOT BE OFFERED, SOLD OR
OTHERWISE TRANSFERRED, OR HYPOTHECATED UNLESS AND UNTIL REGISTERED
UNDER THE ACT OR, IN THE OPINION OF COUNSEL, IN FORM AND SUBSTANCE
SATISFACTORY TO THE ISSUER OF THESE SECURITIES, SUCH OFFER, SALE OR
TRANSFER OR HYPOTHECATION IS IN COMPLIANCE THEREWITH.
The Company and the Investor acknowledge and agree that the Investor may, as
permitted by law, from time to time pledge pursuant to a bona fide margin
agreement or grant a security interest in some or all of the Shares and, if
required under the terms of such arrangement, Investor may, as permitted by law,
transfer pledged or secured Shares to the pledgees or secured parties. So long
as Investor is not an affiliate of the Company, such a pledge or transfer would
not be subject to approval or consent of the Company, provided that, upon the
request of the Company, a legal opinion of legal counsel to the pledgee, secured
party or pledgor shall be obtained. At the Investor's expense, so long as the
Shares are subject to the legend required by this Section 7.6, the Company will
use its reasonable commercial efforts to execute and deliver such reasonable
documentation as a pledgee or secured party of Shares may reasonably request in
connection with a pledge or transfer of the Shares including such amendments or
supplements to the Registration Statement and Prospectus as may be reasonably
required. The foregoing does not affect Investor's obligations pursuant to
Section 7.2(a).
7.7 LIQUIDATED DAMAGES. The Company and Investor agree that Investor
will suffer damages if the Company fails to fulfill its obligations pursuant to
Section 7.1 and 7.2 hereof and that it would not be possible to ascertain the
extent of such damages with precision. Accordingly, the Company hereby agrees to
pay liquidated damages ("Liquidated Damages") to Investor under the following
circumstances: (a) if the Registration Statement is not filed by the Company on
or prior to 15 days after the Closing Date (such an event, a "Filing Default");
(b) if the Registration Statement is not declared effective by the SEC on or
prior to February 14, 2004 (such an event, an "Effectiveness Default"); or (c)
if the Registration Statement (after its effectiveness date) ceases to be
effective and available to Investor for any continuous period that exceeds 30
days or for one or more period that exceeds in the aggregate 60 days in any
12-month period (such an event, a "Suspension Default" and together with a
Filing Default and an Effectiveness Default, a "Registration Default"). In the
event of a Registration Default, the Company shall as Liquidated Damages pay to
Investor, for each 30-day period of a Registration Default, an amount in cash
equal to 1% of the aggregate purchase price paid by Investor pursuant to this
Agreement up to a maximum of 10% of the aggregate purchase price of the Shares,
provided that Liquidation Damages in respect of a Suspension Default shall not
be payable in relation to any Shares not owned by the Investor at the time of
the Suspension Default. The Company shall pay the Liquidated Damages as follows:
(i) in connection with a Filing Default, on the 16th day after the Closing Date,
and each 30th day thereafter until the Registration Statement is filed with the
SEC; (ii) in connection with an Effectiveness Default, on February 15, 2004 and
each 30th day thereafter until the Registration Statement is declared effective
by the SEC; or (iii) in connection with a Suspension Default, on either (x) the
31st consecutive day of any Suspension or (y) the 61st day (in the aggregate) of
any Suspensions in any 12-month period, and each 30th day thereafter until the
Suspension is terminated in accordance with Section 7.2. Notwithstanding the
foregoing, all periods shall be tolled during delays directly caused by the
action or inaction of any Investor, and the Company shall have no liability to
any Investor in respect of any such delay. The Liquidated Damages payable herein
shall apply on a pro rata basis for any portion of a 30-day period of a
Registration Default.
8. NOTICES. All notices, requests, consents and other communications
hereunder shall be in writing, shall be mailed (A) if within the United States
by first-class registered or certified airmail, or nationally recognized
overnight express courier, postage prepaid, or by facsimile, or (B) if delivered
from outside the United States, by International Federal Express (or other
recognized international express courier) or facsimile, and shall be deemed
given (i) if delivered by first-class registered or certified mail, three
business days after so mailed, (ii) if delivered by nationally recognized
overnight carrier, one business day after so mailed, (iii) if delivered by
International Federal Express (or other recognized international express
courier), two business days after so mailed, (iv) if delivered by facsimile,
upon electronic confirmation of receipt and shall be delivered as addressed as
follows:
(a) if to the Company, to:
ParkerVision, Inc.
0000 Xxxxxxxxxx Xxx
Xxxxxxxxxxxx, XX 00000
Attn: Xxxxxxx Xxxxxx and Xxxxx Xxxxxxxx
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(b) with a copy to:
Xxxxxxxx Xxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx Xxxx Xxxxxx
(c) if to the Investor, at its address on the signature page hereto,
or at such other address or addresses as may have been furnished
to the Company in writing.
9. CHANGES. This Agreement may be modified, amended or waived only pursuant
to a written instrument signed by the Company and (a) Investors holding a
majority of the Shares issued and sold in the Offering, provided that such
modification, amendment or waiver is made with respect to all Agreements and
does not adversely affect the Investor without adversely affecting all Investors
in a similar manner; or (b) the Investor.
10. HEADINGS. The headings of the various sections of this Agreement have
been inserted for convenience of reference only and shall not be deemed to be
part of this Agreement.
11. SEVERABILITY. In case any provision contained in this Agreement should
be invalid, illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein shall not in any way
be affected or impaired thereby.
12. GOVERNING LAW. This Agreement shall be governed by, and construed in
accordance with, the internal laws of the State of Florida, without giving
effect to the principles of conflicts of law.
13. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall constitute an original, but all of which, when
taken together, shall constitute but one instrument, and shall become effective
when one or more counterparts have been signed by each party hereto and
delivered to the other parties.
14. ENTIRE AGREEMENT. This Agreement constitute the entire agreement
between the parties hereto and supersedes any prior understandings or agreements
concerning the purchase and sale of the Shares and the resale registration of
the Shares.
15. RULE 144. The Company covenants that it will timely file the reports
required to be filed by it under the Securities Act and the Exchange Act and the
rules and regulations adopted by the SEC thereunder (or, if the Company is not
required to file such reports, it will, upon the request of any Investor holding
Shares purchased hereunder made after the first anniversary of the Closing Date,
make publicly available such information as necessary to permit sales pursuant
to Rule 144 under the Securities Act), and it will take such further action as
any such Investor may reasonably request, all to the extent required from time
to time to enable such Investor to sell Shares purchased hereunder without
registration under the Securities Act within the limitation of the exemptions
provided by (a) Rule 144 under the Securities Act, as such Rule may be amended
from time to time, or (b) any similar rule or regulation hereafter adopted by
the SEC. Upon the request of the Investor, the Company will deliver to such
holder a written statement as to whether it has complied with such information
and requirements.
16. CONFIDENTIAL INFORMATION.
(a) The Investor represents to the Company that, at all times during
the Company's offering of the Shares, the Investor has maintained in confidence
all non-public information regarding the Company received by the Investor from
the Company or its agents, and covenants that it will continue to maintain in
confidence such information until such information (a) becomes generally
publicly available other than through a violation of this provision by the
Investor or its agents or (b) is required to be disclosed in legal proceedings
(such as by deposition, interrogatory, request for documents, subpoena, civil
investigation demand, filing with any governmental authority or similar
process), provided, however, that before making any use or disclosure in
reliance on this subparagraph (b) the Investor shall give the Company at least
fifteen (15) days prior written notice (or such shorter period as required by
law) specifying the circumstances giving rise thereto and will furnish only that
portion of the non-public
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information which is legally required and will exercise its reasonable
commercial efforts to obtain reliable assurance that confidential treatment will
be accorded any non-public information so furnished.
(b) The Company shall on the Closing Date issue a press release
disclosing the material terms of the transactions contemplated hereby (including
at least the number of Shares sold and proceeds therefrom). The Company shall
not publicly disclose the name of Investor, or include the name of Investor in
any filing with the SEC or any state and federal regulatory agency or the Nasdaq
(other than the filing of the Agreements with the SEC pursuant to the Exchange
Act), without the prior written consent of Investor, except to the extent such
disclosure is required by law, regulation or Nasdaq regulations.
17. NO THIRD-PARTY BENEFICIARIES. This Agreement is intended for the
benefit of the parties hereto and their respective successors and permitted
assigns and is not for the benefit of, nor may any provision hereof be enforced
by, any other person.
18. KNOWLEDGE. The term "knowledge" in this Agreement shall mean the
knowledge of the directors and officers of the Company after due inquiry.
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PARKERVISION, INC.
INVESTOR QUESTIONNAIRE
(ALL INFORMATION WILL BE TREATED CONFIDENTIALLY)
To: ParkerVision, Inc.
0000 Xxxxxxxxxx Xxx
Xxxxxxxxxxxx, XX 00000
This Investor Questionnaire ("Questionnaire") must be completed by each
potential investor in connection with the offer and sale of the shares of the
common stock, par value $.01 per share, of ParkerVision, Inc. (the
"Securities"). The Securities are being offered and sold by ParkerVision, Inc.
(the "Corporation") without registration under the Securities Act of 1933, as
amended (the "Act"), and the securities laws of certain states, in reliance on
the exemptions contained in Section 4(2) of the Act and on Regulation D
promulgated thereunder and in reliance on similar exemptions under applicable
state laws. The Corporation must determine that a potential investor meets
certain suitability requirements before offering or selling Securities to such
investor. The purpose of this Questionnaire is to assure the Corporation that
each investor will meet the applicable suitability requirements. The information
supplied by you will be used in determining whether you meet such criteria, and
reliance upon the private offering exemption from registration is based in part
on the information herein supplied.
This Questionnaire does not constitute an offer to sell or a solicitation
of an offer to buy any security. Your answers will be kept strictly
confidential. However, by signing this Questionnaire you will be authorizing the
Corporation to provide a completed copy of this Questionnaire to such parties as
the Corporation deems appropriate in order to ensure that the offer and sale of
the Securities will not result in a violation of the Act or the securities laws
of any state and that you otherwise satisfy the suitability standards applicable
to purchasers of the Securities. All potential investors must answer all
applicable questions and complete, date and sign this Questionnaire. Please
print or type your responses and attach additional sheets of paper if necessary
to complete your answers to any item.
A. BACKGROUND INFORMATION
----------------------
Name: __________________________________________________________________________
Business Address: ______________________________________________________________
(Number and Street)
________________________________________________________________________________
(City) (State) (Zip Code)
Telephone Number: (___)_________________________________________________________
Residence Address: _____________________________________________________________
(Number and Street)
________________________________________________________________________________
(City) (State) (Zip Code)
Telephone Number: (___)_________________________________________________________
If an individual:
Age: ________ Citizenship: _________ Where registered to vote: ___________
If a corporation, partnership, limited liability company, trust or other entity:
Type of entity: ____________________________________________________________
State of formation: ____________________ Date of formation: ________________
Social Security or Taxpayer Identification No. _________________________________
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Send all correspondence to (check one): ___ Residence Address
___ Business Address
Current ownership of securities of the Corporation:
__________ shares of common stock, par value $.01 per share (the "Common Stock")
options to purchase __________ shares of Common Stock.
B. STATUS AS ACCREDITED INVESTOR
I. The undersigned is an "accredited investor" as such term is defined in
Regulation D under the Act, as at the time of the sale of the Securities the
undersigned falls within one or more of the following categories (PLEASE INITIAL
ONE OR MORE, AS APPLICABLE):1
____ (1) a bank as defined in Section 3(a)(2) of the Act, or a savings and
loan association or other institution as defined in Section 3(a)(5)(A) of the
Act whether acting in its individual or fiduciary capacity; a broker or dealer
registered pursuant to Section 15 of the Securities Exchange Act of 1934; an
insurance company as defined in Section 2(13) of the Act; an investment company
registered under the Investment Corporation Act of 1940 or a business
development company as defined in Section 2(a)(48) of that Act; a Small Business
Investment Corporation licensed by the U.S. Small Business Administration under
Section 301(c) or (d) of the Small Business Investment Act of 1958; a plan
established and maintained by a state, its political subdivisions, or any agency
or instrumentality of a state or its political subdivisions for the benefit of
its employees, if such plan has total assets in excess of $5,000,000; an
employee benefit plan within the meaning of the Employee Retirement Income
Security Act of 1974 if the investment decision is made by a plan fiduciary, as
defined in Section 3(21) of such Act, which is either a bank, savings and loan
association, insurance company, or registered investment adviser, or if the
employee benefit plan has total assets in excess of $5,000,000 or, if a
self-directed plan, with the investment decisions made solely by persons that
are accredited investors;
____ (2) a private business development company as defined in Section
202(a)(22) of the Investment Adviser Act of 1940;
____ (3) an organization described in Section 501(c)(3) of the Internal
Revenue Code of 1986, as amended, corporation, Massachusetts or similar business
trust, or partnership, not formed for the specific purpose of acquiring the
Securities offered, with total assets in excess of $5,000,000;
____ (4) a natural person whose individual net worth, or joint net worth
with that person's spouse, at the time of such person's purchase of the
Securities exceeds $1,000,000;
____ (5) a natural person who had an individual income in excess of
$200,000 in each of the two most recent years or joint income with that person's
spouse in excess of $300,000 in each of those years and has a reasonable
expectation of reaching the same income level in the current year;
____ (6) a trust, with total assets in excess of $5,000,000, not formed for
the specific purpose of acquiring the Securities offered, whose purchase is
directed by a sophisticated person as described in Rule 506(b)(2)(ii) of
Regulation D; and
____ (7) an entity in which all of the equity owners are accredited
investors (as defined above).
-----------------------
1 As used in this Questionnaire, the term "net worth" means the excess of
total assets over total liabilities. In computing net worth for the purpose of
subsection (4), the principal residence of the investor must be valued at cost,
including cost of improvements, or at recently appraised value by an
institutional lender making a secured loan, net of encumbrances. In determining
income, the investor should add to the investor's adjusted gross income any
amounts attributable to tax exempt income received, losses claimed as a limited
partner in any limited partnership, deductions claimed for depiction,
contributions to an XXX or XXXXX retirement plan, alimony payments, and any
amount by which income from long-term capital gains has been reduced in arriving
at adjusted gross income.
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II. The undersigned is not an "accredited investor" as such term is defined in
Regulation D under the Act, as at the time of the sale of the Securities,
and each of the following statements is true and correct:
_________ (initial)
(a) The Company has made available to the undersigned, during the course
of this transaction and prior to the acquisition of the Securities,
the opportunity to ask questions of and receive complete and correct
answers from representatives of the Company concerning the terms and
conditions of the Securities and to obtain any additional information
relating to the financial condition and business of the Company;
(b) The undersigned, either alone or with Wellington Management Company,
LLP as its purchaser representative, has such knowledge and experience
in financial and business matters that the undersigned is capable of
evaluating the merits and risks of the investment in the Securities;
(c) The undersigned has received or been given access to all information
required to be furnished to the undersigned pursuant to Rule 502(b) of
the Securities Act.
C. REPRESENTATIONS
---------------
The undersigned hereby represents and warrants to the Corporation as
follows:
1. Any purchase of the Securities would be solely for the account of the
undersigned and not for the account of any other person or with a view to
any resale, fractionalization, division, or distribution thereof.
2. The information contained herein is complete and accurate and may be relied
upon by the Corporation, and the undersigned will notify the Corporation
immediately of any material change in any of such information occurring
prior to the closing, if any, with respect to the purchase of Securities by
the undersigned or any co-purchaser.
3. There are no suits, pending litigation, or claims against the undersigned
that could materially affect the net worth of the undersigned as reported
in this Questionnaire.
4. The undersigned acknowledges that there may occasionally be times when the
Corporation determines that it must suspend the use of the Prospectus
forming a part of the Registration Statement (as such terms are defined in
the Stock Purchase Agreement to which this Questionnaire is attached), as
set forth in Section 7.2(c) of the Stock Purchase Agreement. The
undersigned is aware that, in such event, the Securities will not be
subject to ready liquidation, and that any Securities purchased by the
undersigned would have to be held during such suspension. The overall
commitment of the undersigned to investments which are not readily
marketable is not excessive in view of the undersigned's net worth and
financial circumstances, and any purchase of the Securities will not cause
such commitment to become excessive. The undersigned is able to bear the
economic risk of an investment in the Securities.
5. The undersigned has carefully considered the potential risks relating to
the Corporation and a purchase of the Securities, and fully understands
that the Securities are speculative investments which involve a high degree
of risk of loss of the undersigned's entire investment. Among others, the
undersigned has carefully considered each of the risks identified in
Exhibit 99.1 to the Annual Report on Form 10-K for the year ended December
31, 2002.
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IN WITNESS WHEREOF, the undersigned has executed this Questionnaire this
____ day of November, 2003, and declares under oath that it is truthful and
correct.
________________________________________
Print Name
By: ____________________________________
Signature
Title: ________________________________
(required for any purchaser that
is a corporation, partnership,
trust or other entity)
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[COMPANY LETTERHEAD]
_________, 200_
Re: PARKERVISION, INC.; REGISTRATION STATEMENT ON FORM S-3
Dear Selling Shareholder:
Enclosed please find five (5) copies of a prospectus dated ______________,
200[__] (the "PROSPECTUS") for your use in reselling your shares of common
stock, $.01 par value (the "SHARES"), of ParkerVision, Inc. (the "COMPANY"),
under the Company's Registration Statement on Form S-3 (Registration No. 333- )
(the "REGISTRATION STATEMENT"), which has been declared effective by the
Securities and Exchange Commission. AS A SELLING SHAREHOLDER UNDER THE
REGISTRATION STATEMENT, YOU HAVE AN OBLIGATION TO DELIVER A COPY OF THE
PROSPECTUS TO EACH PURCHASER OF YOUR SHARES, EITHER DIRECTLY OR THROUGH THE
BROKER-DEALER WHO EXECUTES THE SALE OF YOUR SHARES.
The Company is obligated to notify you in the event that it suspends
trading under the Registration Statement in accordance with the terms of the
Stock Purchase Agreement between the Company and you. During the period that the
Registration Statement remains effective and trading thereunder has not been
suspended, you will be permitted to sell your Shares which are included in the
Prospectus under the Registration Statement. Upon a sale of any Shares under the
Registration Statement, you or your broker will be required to deliver to the
Transfer Agent, [Name of Transfer Agent] (1) your restricted stock
certificate(s) representing the Shares, (2) instructions for transfer of the
Shares sold, and (3) a representation letter from your broker, or from you if
you are selling in a privately negotiated transaction, or from such other
appropriate party, in the form of EXHIBIT A attached hereto (the "Representation
Letter"). The Representation Letter confirms that the Shares have been sold
pursuant to the Registration Statement and in a manner described under the
caption "Plan of Distribution" in the Prospectus and that such sale was made in
accordance with all applicable securities laws, including the prospectus
delivery requirements.
Please note that you are under no obligation to sell your Shares during the
registration period. However, if you do decide to sell, you must comply with the
requirements described in this letter or otherwise applicable to such sale. Your
failure to do so may result in liability under the Securities Act of 1933, as
amended, and the Securities Exchange Act of 1934, as amended. Please remember
that all sales of your Shares must be carried out in the manner set forth under
the caption "Plan of Distribution" in the Prospectus if you sell under the
Registration Statement. The Company may require an opinion of counsel reasonably
satisfactory to the Company if you choose another method of sale. YOU SHOULD
CONSULT WITH YOUR OWN LEGAL ADVISOR(S) ON AN ONGOING BASIS TO ENSURE YOUR
COMPLIANCE WITH THE RELEVANT SECURITIES LAWS AND REGULATIONS.
IN ORDER TO MAINTAIN THE ACCURACY OF THE PROSPECTUS, YOU MUST NOTIFY THE
UNDERSIGNED UPON THE SALE, GIFT, OR OTHER TRANSFER OF ANY SHARES BY YOU,
INCLUDING THE NUMBER OF SHARES BEING TRANSFERRED, AND IN THE EVENT OF ANY OTHER
CHANGE IN THE INFORMATION REGARDING YOU WHICH IS CONTAINED IN THE PROSPECTUS.
FOR EXAMPLE, YOU MUST NOTIFY THE UNDERSIGNED IF YOU ENTER INTO ANY ARRANGEMENT
WITH A BROKER-DEALER FOR THE SALE OF SHARES THROUGH A BLOCK TRADE, SPECIAL
OFFERING, EXCHANGE DISTRIBUTION OR SECONDARY DISTRIBUTION OR A PURCHASE BY A
BROKER-DEALER. DEPENDING ON THE CIRCUMSTANCES, SUCH TRANSACTIONS MAY REQUIRE THE
FILING OF A SUPPLEMENT TO THE PROSPECTUS IN ORDER TO UPDATE THE INFORMATION SET
FORTH UNDER THE CAPTION "PLAN OF DISTRIBUTION" IN THE PROSPECTUS.
Should you need any additional copies of the Prospectus, or if you have any
questions concerning the foregoing, please write to me at ParkerVision, Inc.,
0000 Xxxxxxxxxx Xxx, Xxxxxxxxxxxx, XX 00000. Thank you.
Sincerely,
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Exhibit A
---------
CERTIFICATE OF SUBSEQUENT SALE
[Name of Transfer Agent]
[Address of Transfer Agent]
RE: Sale of Shares of Common Stock of ParkerVision, Inc. (the "Company")
pursuant to the Company's Prospectus dated _____________, 200[__] (the
"Prospectus")
Dear Sir/Madam:
The undersigned hereby certifies, in connection with the sale of shares of
Common Stock of the Company included in the table of Selling Shareholders in the
Prospectus, that the undersigned has sold the shares pursuant to the Prospectus
and in a manner described under the caption "Plan of Distribution" in the
Prospectus and that such sale complies with all securities laws applicable to
the undersigned, including, without limitation, the Prospectus delivery
requirements of the Securities Act of 1933, as amended.
Selling Shareholder (the beneficial owner): ____________________________________
Record Holder (e.g., if held in name of nominee): ______________________________
Restricted Stock Certificate No.(s): ___________________________________________
Number of Shares Sold: _________________________________________________________
Date of Sale: __________________________________________________________________
In the event that you receive a stock certificate(s) representing more
shares of Common Stock than have been sold by the undersigned, then you should
return to the undersigned a newly issued certificate for such excess shares in
the name of the Record Holder and BEARING A RESTRICTIVE LEGEND. Further, you
should place a stop transfer on your records with regard to such certificate.
Very truly yours,
Dated: __________________________ By: ____________________________________
Print Name: ____________________________
Title: _________________________________
cc: ParkerVision, Inc.
0000 Xxxxxxxxxx Xxx
Xxxxxxxxxxxx, XX 00000
Attn: [_____________]
-22-
