EXECUTIVE EMPLOYMENT AGREEMENT
This
is an employment agreement (hereafter "this Agreement") between ParkerVision
Inc., a
Florida corporation authorized to do business in Florida (hereafter
"ParkerVision"), and Xxxxxxx
Xxxxxxx (hereafter
"Executive").
Recitals
1.
ParkerVision
is in the business of developing, designing, producing, marketing and selling
RF
technologies and/or integrated circuits for varied applications in wireless
communications markets (hereafter "ParkerVision's Business").
2.
ParkerVision
desires to employ Executive, and Executive desires to work for ParkerVision
under the terms of this Agreement, and the parties recognize that both will
benefit through Executive’s continued productive employment with
ParkerVision.
3.
At
great expense, ParkerVision has developed technology and products which are
protected by patents, trade secrets, and other intellectual property rights,
and
has secured accounts and solicited potential accounts through its sales and
marketing efforts throughout the United States of America (hereafter “U.S.”) and
around the world. In this regard, Executive will have employment
responsibilities involving development of intellectual property and/or products,
marketing and/or account contact within all geographical locations in which
ParkerVision conducts its business. ParkerVision provides an environment
conducive to the development of ParkerVision technologies and products and
enhances Executive’s experience with those technologies and
products.
4.
With
the exception of its employees, ParkerVision considers its most valuable assets
to be its intellectual property, business information and proprietary
information, including but not limited to, matters of a technical nature, such
as the implementation of its intellectual property, associated intellectual
and
other electrical circuits, sources of product components, engineering secrets,
formulae, “know how”, schematics, prototypes, technical drawings, secret
processes or machines, training and operation manuals, inventions, computer
software, product research and designs, and matters of a business nature, such
as information about costs, profits, markets, product development and design,
licensing strategies and targets, personnel, business relationships, legal
strategies, marketing plans and programs, pricing lists, sales, lists of vendors
and/or actual or prospective customers, and any other information, whether
communicated orally or in documentary or other tangible form, concerning how
ParkerVision operates its business, including plans for future development
to an
extent not available to the public (collectively referred to herein as
“Confidential Information”). The parties to this Agreement recognize that
ParkerVision has invested considerable amounts of time and money in attaining
and developing Confidential Information, and any unauthorized disclosure or
release in any form could irreparably harm ParkerVision.
5.
The
parties recognize that Executive may take part in attaining and developing,
and/or otherwise will have access to, ParkerVision's Confidential Information
in
the course of his employment with ParkerVision and will be compensated for
the
services Executive provides. Executive also recognizes and acknowledges the
importance of protecting ParkerVision’s Confidential Information for the benefit
of all of ParkerVision’s employees.
6.
In
light of the foregoing, ParkerVision has legitimate business interests to
protect, including (a) valuable confidential business and technical information
(much of which qualifies as trade secrets under Florida law), (b) substantial
relationships with specific prospective and existing customers, and (c) customer
goodwill associated with promotion of ParkerVision's technologies, products
and
business through its good name in the industry.
In
consideration of mutual promises set forth in this Agreement, the parties to
this Agreement hereby agree to the following:
Nature
of Employment
7.
ParkerVision
shall employ Executive as its Chief
Staff Scientist
with specific duties and responsibilities to be determined by ParkerVision’s
Chief Executive Officer.
Compensation
and Benefits
8.
During
his employment under this Agreement, ParkerVision shall provide Executive with
the following:
| (a) |
A
base salary at no less than the rate of $250,000
annually which ParkerVision may adjust upward from time to time in
its
sole discretion (hereafter “Base
Salary”).
|
| (b) |
A
signing bonus of $70,000,
within ten
(10)
days following execution of this Agreement to be payable in cash
or equity
at ParkerVision’s option.
|
| (c) |
Beginning
with the fiscal year ending December 31, 2008, in addition to his
Base
Salary, Executive is eligible for a bonus opportunity to be earned
on
achievement of annual qualitative and/or financial goals as recommended
by
the Chief Executive Officer (in consultation with Executive) and
approved
by the Compensation Committee of ParkerVision’s Board of Directors
(“Compensation Committee”).
|
| (d) |
ParkerVision
shall grant to Executive restricted share units (“RSUs”) as set forth on
the schedule attached as Exhibit A. These RSUs represent the 2008
and 2009
long term equity incentive awards for Executive. The Compensation
Committee may, at its sole discretion, grant additional equity
compensation in the form of RSUs, restricted shares or share options
during the term of this Agreement.
|
| (e) |
Executive
shall be eligible to participate in the employee benefits plans
ParkerVision maintains for its other executives who are parties to
an
agreement in a form substantially similar to this Agreement (hereafter
“Similarly Situated Executives”), subject in each case to the generally
applicable terms and conditions of the benefit plan or program.
|
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2 of 19
9.
The
bonus described in subparagraph 8(c) above shall be paid no later than
the
later of:
(1)
the
15th
day of the third month following the end of Executive's first taxable year
in
which the right to the payment is no longer subject to a substantial risk of
forfeiture; or (2) the 15th day of the third month
following the end of ParkerVision’s first
taxable
year
in which the right to the payment is no longer subject to a substantial risk
of
forfeiture.
Termination
of Employment
10.
Executive and ParkerVision acknowledge that Executive’s employment under this
Agreement shall be terminated immediately upon his death or the conclusion
of
six (6) months after he becomes disabled (as defined below), whichever is
earlier, or may be terminated any time at will upon either party delivering
to
the other written notice of employment termination at least thirty (30) days
in
advance of the termination date stated in the notice (hereafter “Termination
Date”), with ParkerVision having the right and discretion to provide thirty (30)
days of pay in lieu of prior notice at the rate of Executive’s Base
Salary,
subject to the limitations provided in paragraph 14; providing further
that
Executive will receive such notice pay at the termination day interview. As
of
the Termination Date, except as expressly provided below, ParkerVision’s
obligation to provide compensation and benefits to Executive shall
cease.
Severance
Package
11.
Executive
shall receive a Severance Package from ParkerVision if the following
occurs:
|
(a)
|
Executive
executes, and does not revoke, a Severance Agreement and Release
substantially in the form attached as Exhibit B to this Agreement;
and
|
|
(b)
|
ParkerVision
terminates Executive’s employment without “Cause,” Executive
resigns his
employment from ParkerVision with “Good Reason” or
a “Change in Control” occurs, each as defined below;
or
|
|
(c)
|
Executive
becomes disabled, defined as meeting one of the following
requirements:
|
|
(1)
|
Executive
is unable to engage in any substantial gainful activity by reason
of any
medically determinable physical or mental impairment that can be
expected
to result in death or can be expected to last for a continuous period
of
not less than twelve (12) months;
or
|
|
(2)
|
Executive
is, by reason of any medically determinable physical or mental impairment
that can be expected to result in death or can be expected to last
for a
continuous period of not less than twelve (12) months, receiving
income
replacement benefits for a period or not less than three (3) months
under
an accident and health plan covering Executive.
|
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3 of 19
12.
“Cause”
for ParkerVision to terminate Executive’s employment is defined as one or more
of the following:
|
(a)
|
Willful
and continued failure to perform Executive’s job duties after
ParkerVision’s written notice to Executive of
same.
|
|
(b)
|
A
material violation of a ParkerVision policy or
procedure.
|
|
(c)
|
An
act of dishonesty or fraud intended to result in a benefit to Executive
at
ParkerVision’s expense.
|
|
(d)
|
Misconduct
connected with work as interpreted under Florida’s unemployment
compensation law.
|
|
(e)
|
Conviction
of, or a plea of guilty or no contest to, a felony or other crime
involving dishonesty or violence.
|
|
(f)
|
Executive’s
material breach of this Agreement that is not cured within thirty
(30)
days after ParkerVision delivers to Executive written notice of such
breach.
|
13.
“Good
Reason” for Executive to voluntarily terminate his employment with ParkerVision
is defined as one or more of the following
conditions, which must arise without the consent of Executive:
|
(a)
|
A
material diminution in Executive’s authorities, duties, or
responsibilities.
|
|
(b)
|
A
material diminution in Executive’s base compensation and benefits, except
for a reduction applicable generally to ParkerVision’s Similarly Situated
Executives.
|
|
(c)
|
Material
relocation of Executive’s primary office
location.
|
|
(d)
|
Any
action or inaction by ParkerVision that constitutes a
material breach
by ParkerVision
of this Agreement under
which the
Executive provides
services.
|
The
termination must occur during the six (6) month period following the initial
existence of one or more of the above stated conditions.
Executive
must provide written notice to ParkerVision of the condition which constitutes
“Good Reason” within a period not to exceed ninety (90) days of the initial
existence of the condition. Upon the giving of such notice, ParkerVision shall
have a period of thirty (30) days during which it may remedy the condition,
and
if so remedied, ParkerVision shall not be required to pay the Severance
Package.
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4 of 19
14.
“Severance
Package” is defined as follows:
|
(a)
|
Continuation
of Executive’s ending Base Salary for a twelve (12) month period following
the Termination Date.
|
|
(b)
|
Payment
of the bonus described in subparagraph 8(c) above, prorated by the
number
of weeks Executive worked in the fiscal year divided by fifty two
(52),
determined and payable when bonuses for those Similarly Situated
Executives who worked through the fiscal year are determined and
paid.
|
|
(c)
|
If
Executive timely elects group health insurance continuation coverage
pursuant to the Consolidated Omnibus Budget Reconciliation Act (COBRA),
payment of the premiums for such coverage for the
period
of time during which
the Executive
would be entitled (or would, but
for
such plan, be entitled) to continuation coverage under a
group health plan
of ParkerVision
under section 4980B of the Internal Revenue Code if Executive elected
such
coverage and paid the applicable premiums.
|
|
(d)
|
If
the Termination Date occurs within two (2) years after a Change in
Control
(as defined below) while this Agreement is in effect, in lieu of
the
severance component in subparagraph 14(a) above, 150%
of his greatest final annual Base Salary over the term of this Agreement,
plus an amount equal to the greater
of:
|
|
(i)
|
the
bonus or annual incentive compensation earned by Executive during
the
prior full fiscal year before a Change in
Control,
|
|
(ii)
|
the
average of the bonus or annual incentive compensation earned by Executive
during the three (3) full fiscal years, or that number of full fiscal
years Executive was employed by ParkerVision if less, before a Change
in
Control based on the years in which Executive was eligible to receive
such
compensation; or
|
|
(iii)
|
if
not entitled to any bonus or annual incentive compensation during
any of
the three (3) years before the Change in Control, the amount set
forth in
subparagraph 14(b) above as if no Change in Control had
occurred.
|
|
(e)
|
If
Executive qualifies as a“specified
employee”
under regulations pursuant to Internal Revenue Code section
409A, the foregoing provisions shall be subject to the following
modifications:
|
|
(i)
|
Payments
due within six
(6)
months
of
the Termination Date shall
not exceed two times the lesser of: (1) the sum of Executive's annualized
compensation based upon the annual rate of pay for services provided
to
ParkerVision for the taxable year of Executive preceding the taxable
year
of Executive in which Executive terminates employment with ParkerVision
(adjusted for any increase during that year that was expected to
continue
indefinitely if Executive had not terminated employment),
or (2) the maximum
amount that may be taken into account under a qualified plan
under Internal Revenue Code section
401(a)(17) for the year
in which Executive
has a separation from service (“Specified Employee
Limitation”).
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5 of 19
|
(ii)
|
Where
amounts are paid in the Severance Package to a “specified employee” within
six months following termination, no amount of the Severance Package
may
be paid later than the last day of the second taxable year of the
Executive following the taxable year of the Executive in which occurs
the
separation from service.
|
|
(f)
|
To
the extent that severance benefits set forth in subparagraphs 14(a),
14(b), 14(c) and 14(d) above are deemed to be “parachute payments” in
accordance with Internal Revenue Code regulations, Executive will
be
entitled to a “golden parachute excise tax” gross-up on such benefits,
provided that the parachute payments are at least one hundred ten
percent
(110%) of the “safe harbor” amount (2.99 times average W-2 amount for the
five calendar years preceding the year in which the Change in Control
occurs). Notwithstanding the foregoing, if the parachute payments
to
Executive are between one hundred percent (100%) and one hundred
ten
percent (110%) of the safe harbor amount, then there will be a cut
back of
the total amount to bring the total parachute payments within the
safe
harbor.
|
|
(g)
|
If
Executive’s employment is terminated after six (6) months of his becoming
disabled, the Severance Package shall be limited to the benefit set
forth
in subparagraph 14(c) above.
|
15.
A
Change in Control shall mean any one of the following events:
|
(a)
|
An
acquisition by any one person, or more than one person acting as
a group,
of the ownership of stock of ParkerVision that, together with the
stock
held by such person or group, constitutes more than sixty five percent
(65%) of the total fair market value or combined voting power of
the stock
of ParkerVision (including by way of merger or reorganization). If
any one
person, or more than one person acting as a group, is considered
to own
more than sixty five percent (65%) of the total fair market value
or total
voting power of the stock of ParkerVision, the acquisition of additional
stock by the same person or persons is not considered to cause a
change in
the ownership of ParkerVision. An increase in the percentage of stock
owned by any one person, or persons acting as a group, as a result
of a
transaction in which ParkerVision acquires its stock in exchange
for
property is treated as an acquisition of
stock.
|
|
(b)
|
An
acquisition by any one person,
or more than one person acting as
a
group, or an acquisition during the twelve (12) month period ending
on the
date
of the most
recent acquisition by such person
or persons,
of an
ownership of stock
of ParkerVision possessing
thirty five percent (35%) or more of the total
voting power of the
stock of ParkerVision. If any
one
person,
or more than
one person acting as a group,
is
considered
to effectively control ParkerVision, within
the meaning
of this
subparagraph 16(b), the
acquisition of
additional control of ParkerVision by the same person or persons
is not
considered to cause a change in control of
ParkerVision.
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|
(c)
|
The
replacement, during
any period of twelve
(12)
months of
a
majority of members of ParkerVision's board of
directors by
directors whose appointment
or election
is not endorsed
by a majority of the members
of ParkerVision's board of
directors before
the date
of the appointment
or election.
|
|
(d)
|
An
acquisition by any one person, or more than one person acting as
a group,
or an acquisition during the twelve (12) month period ending on the
date
of the most recent acquisition by such person or persons, of assets
from
ParkerVision that have a total gross fair market value equal to or
more
than sixty five percent (65%) of the total gross fair market value
of all
of the assets of ParkerVision immediately before such acquisition
or
acquisitions. For this purpose, gross fair market value means the
value of
the assets being disposed of, determined without regard to any liabilities
associated with such assets.
|
Other
Simultaneous Employment/Duty of Loyalty
16.
Executive
will at all times perform the duties required of his position and title with
ParkerVision under this Agreement. At all times, Executive will act with honesty
and integrity in the best interest of ParkerVision.
17.
While
in ParkerVision's employ, Executive will refrain from engaging in any other
business activity, including, without limitation, providing consulting services,
without ParkerVision's advance written consent (which shall not be unreasonably
withheld and shall be provided to Executive within 30 days of Executive’s
request), and Executive will promptly notify ParkerVision's Chief Executive
Officer of any information he learns about any current or former Executive
of
ParkerVision engaging in any business activity similar or related to
ParkerVision's Business.
Intellectual
Property
18.
In this Agreement, "Intellectual Property" shall mean all discoveries, concepts,
ideas, inventions, improvements, derivatives, extensions, original works of
authorship, processes, machines, combinations, computer programs, databases,
trademarks, and trade secrets, whether or not protectable under the patent,
copyright, and/or trade secret laws, and all related know-how that Executive
made, developed, conceived, first reduced to practice or created, either alone
or jointly with others, during Executive’s course of employment with
ParkerVision and continuing one (1) year after Executive’s termination of
employment with ParkerVision, as related to items (a), (b), (c), and/or (d)
in
paragraph 19 below, for whatever reason.
19.
Executive shall promptly disclose to ParkerVision all Intellectual Property
that: (a) is developed using equipment, supplies, facilities, Confidential
Information, or personnel of ParkerVision; (b) results from or is suggested
by
work Executive may perform for ParkerVision; (c) relates to the present or
prospective business, work, investigations, research, or development of
ParkerVision; or (d) ParkerVision may claim rights to the extent allowed by
applicable law. Executive further agrees that such Intellectual Property will
be
the sole and exclusive property of ParkerVision and are hereby exclusively
assigned by Executive to ParkerVision.
Page
7 of 19
20.
Executive shall perform all acts that ParkerVision may reasonably request,
at
the expense of ParkerVision, to assist ParkerVision in obtaining and enforcing
the full benefits, enjoyment, rights, and title, in the United States of America
and throughout the world, in ParkerVision's Intellectual Property. Such acts
shall include, without limitation, execution of documents, assistance in the
prosecution and/or enforcement of patents, copyrights, trademarks, and trade
secrets, or in any other legal proceedings.
21.
Executive’s obligations under this section of this Agreement entitled
“Intellectual Property” shall continue beyond the termination of his employment
with ParkerVision, provided that ParkerVision will compensate Executive at
a
reasonable hourly rate as charged by others for similar consulting services
in
the industry for time Executive actually spends on such assistance at
ParkerVision’s request.
22.
In the event that ParkerVision is unable to secure Executive’s signature to any
lawful document required to apply for, prosecute, or enforce any of
ParkerVision’s Intellectual Property, due to Executive’s mental or physical
incapacity, unavailability, or for whatever other reason, Executive hereby
irrevocably appoints ParkerVision and its duly authorized officers and agents
as
Executive’s agents and attorneys-in-fact to apply for, prosecute, or enforce
ParkerVision’s Intellectual Property with the same legal force and effect as if
executed by Executive.
23.
As
to Intellectual Property that qualifies as original works of authorship under
the copyright laws (either U.S. or foreign), Executive acknowledges that such
works shall be considered “works-for-hire” for the exclusive benefit of
ParkerVision, which shall own all rights to such work. Such rights shall include
all “moral” rights under any (either U.S. or foreign) copyright or other similar
law for such works, including, but not limited to, rights to identification
of
authorship, rights to cause or suppress publication, or rights of approval
or
limitations on subsequent modifications.
24.
Executive represents that except for the specific intellectual property he
has
disclosed in Exhibit C (entitled “Prior Inventions”), Executive does not wish to
exclude any Intellectual Property from the operation of this Agreement.
ParkerVision shall have an irrevocable and free right to use any prior
inventions, ideas, copyrights, or other intellectual property of Executive
disclosed on a non-confidential basis to ParkerVision, except for such valid
patent rights as Executive may have obtained before the date hereof which are
disclosed in Exhibit C.
Confidentiality
of ParkerVision's Property
25.
Executive
recognizes that all of the documents and other tangible items which contain
any
of ParkerVision's Confidential Information and/or Intellectual Property are
ParkerVision's property exclusively, including those documents and items which
Executive may have developed or contributed to developing while in
ParkerVision's employ, whether or not developed during regular working hours
or
on ParkerVision's premises.
26.
Executive
recognizes that, without limitation, all books, manuals, records, models,
drawings, reports, notes, contracts, lists, blueprints, identification
information, keys, computer software and hardware, data bases, tapes, technical
notes, tools, equipment, and other documents, materials of any nature, and
tangible items pertaining to Executive's work with, or provided by, ParkerVision
are the exclusive property of ParkerVision, including, but not limited to,
those
documents and items which Executive may have developed or contributed to
developing while in ParkerVision’s employ, whether or not developed during
regular working hours or on ParkerVision’s premises (collectively referred to
herein as “ParkerVision Property”).
Page
8 of 19
27.
Should
Executive's employment be terminated for any reason, Executive
shall:
|
(a)
|
Refrain
from taking any of ParkerVision's Property or allowing any of
ParkerVision's Property to be taken from ParkerVision's
premises;
|
|
(b)
|
Refrain
from transmitting or reproducing in any manner or allowing to be
transmitted or reproduced any of ParkerVision's
Property;
|
|
(c)
|
Refrain
from removing any such reproduction from ParkerVision's premises;
and
|
|
(d)
|
Immediately
return to ParkerVision at its Jacksonville, Florida office any original
or
reproduction of ParkerVision's Property in his
possession.
|
Restrictive
Covenants
28.
During
his employ and thereafter, whatever the reason for his leaving ParkerVision's
employ, Executive shall refrain from directly or indirectly disclosing to any
third party, or using for any purpose other than for the direct benefit of
ParkerVision, any of ParkerVision's Confidential Information or Intellectual
Property and will not directly or indirectly use or disclose any Confidential
Information or Intellectual Property for the benefit of any other person,
entity, firm, organization, association or partnership, nor lecture upon or
publish articles revealing Confidential Information or Intellectual Property,
without the written consent of ParkerVision, except as may be necessary to
perform Executive’s duties as an employee of ParkerVision. Nothing
in this Agreement shall be construed to limit ParkerVision’s statutory or common
law rights and remedies relative to protection of its trade secrets, copyrighted
material and other confidential and proprietary information.
29.
ParkerVision
considers any business or entity which develops RF technologies and/or products,
or develops, designs, or sells the type of RF technologies ParkerVision has
developed or designed, or contemplated developing or designing at the time
of
Executive’s termination of employment with ParkerVision, to constitute a
competing business (hereafter “Competing Business”). In this regard, unless
Executive receives ParkerVision's advance written waiver as described in
paragraph 37 below, during his employment with ParkerVision and the subsequent
Restriction Period defined below, Executive shall not, either directly or
indirectly, engage in the following activities, or assist others in such
activities:
|
(a)
|
Hiring,
recruiting, or attempting to recruit, for a Competing Business, or
otherwise becoming associated in a Competing Business with, any person
employed by ParkerVision or employed by ParkerVision at any time
during
the previous twelve (12) months;
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Page
9 of 19
|
(b)
|
For
a Competing Business, soliciting, or accepting any business from,
any of
ParkerVision's current, former or prospective customers (a prospective
customer defined as any entity ParkerVision has actively solicited,
planned to solicit, or provided services to, during the twelve (12)
months
before Executive's termination of employment with ParkerVision);
or
|
|
(c)
|
Entering
into, engaging in, being employed by, being connected to, or consulting
for, a Competing Business.
|
Any
successor or assignee of ParkerVision is authorized to enforce this and the
other restrictive covenants in this Agreement as if the name of such successor
or assignee replaced ParkerVision throughout this Agreement.
30.
The
Restriction Period is defined as follows:
|
(a)
|
The
number of months ParkerVision offers to continue to compensate Executive
after the Termination Date at the rate of his ending Base Salary
provided
ParkerVision notifies Executive before or within ninety (90) days
of the
Termination Date of the number of such months (a minimum of twelve
(12)
months and maximum of thirty six (36) months), or if ParkerVision
fails to
provide such notification, the offer shall be presumed to be for
twelve
(12) months.
|
|
(b)
|
To
accept ParkerVision’s offer of continued compensation as set forth in
subparagraph 30(a) above, Executive must execute, and not revoke,
the
Severance Agreement and Release referenced in subparagraph 11(a)
above
(Exhibit B). However, Executive’s failure to accept ParkerVision’s offer
of continued compensation shall not operate to limit the Restriction
Period in any way.
|
| (c) |
Severance
Pay provided pursuant to subparagraphs 14(a) and 14(b) above shall
not be
credited toward the monthly payments resulting from Executive’s acceptance
of ParkerVision’s offer of continued compensation described in
subparagraph 30(a) above. However, the following amounts shall be
credited
toward such monthly payment obligation except in the case of Executive’s
resignation for “Good Reason” in which case the following amounts shall
not be credited toward the monthly payment
obligation:
|
|
(i)
|
The
amount of compensation provided pursuant to subparagraph 14(d) above
in
excess of twelve (12) months’ Base
Salary;
|
|
(ii)
|
In
the event of termination for cause or resignation by the Executive
without
“Good Reason”, all gains realized upon Executive’s sale of any
ParkerVision shares from vested RSUs or stock options during the
twelve
(12) month period immediately preceding the Termination Date;
and
|
|
(iii)
|
In
the event of termination for cause or resignation by the Executive
without
“Good Reason”, the total value of any equity instruments ParkerVision
provided to Executive during the entire term of his employment with
ParkerVision, including stock options, restricted shares and/or RSUs,
that
are vested and outstanding as of the Termination Date. The value
shall be
calculated using the closing market price of ParkerVision’s common stock
on the Termination Date.
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19
31.
For
a period of twelve (12) months following the Termination Date, regardless of
the
reason for employment termination, Executive shall not enter the employ of
a
business which is a current, former or prospective customer of ParkerVision
unless Executive receives ParkerVision's Chief Executive Officer’s advance
written consent.
Ethical
Conduct
32.
Executive
shall conduct business in an ethical manner by:
|
(a)
|
Avoiding
conflicts of interest;
|
|
(b)
|
Refusing
to accept, and reporting to ParkerVision the offering of, anything
of
value, including a gift, loan on preferential terms, reward, promise
of
future employment, favor or service which would influence a reasonably
prudent person in the discharge of his duties for ParkerVision or
which is
based on any understanding that his action would be influenced;
and
|
|
(c)
|
With
prior notice to Executive, abiding by policies and guidelines relating
to
ethical conduct applicable to all Similarly Situated Executives which
ParkerVision may issue as it deems
appropriate.
|
Remedies
for Breach of Agreement
33.
The
parties to this Agreement recognize that irreparable harm could result from
any
breach of those provisions of this Agreement set forth in paragraphs 28 through
31 under the heading “Restrictive Covenants” and that monetary damages alone
would not provide adequate relief for any such breach. Accordingly, in addition
to any other remedy which may be available to ParkerVision, if Executive
breaches a restrictive covenant in this Agreement, the parties acknowledge
that
injunctive relief in favor of ParkerVision is proper. Additionally, if Executive
breaches any restrictive covenant in this Agreement, he forfeits his right
to
any compensation described in paragraphs 14 and 30 above payable while Executive
is breaching such covenant or after any such breach has occurred.
34.
If
Executive breaches a covenant containing a specified term, the term shall be
extended by the period of time between Executive's termination of employment
with ParkerVision and the date a court of competent jurisdiction enters an
injunction restraining further breach of the covenant.
35.
If
ParkerVision determines that Executive has breached this Agreement, Executive
shall make himself available for service of process within the State of
Florida.
Page
11 of
19
36.
If
a court of competent jurisdiction determines that any of the restrictions in
this Agreement are overbroad, Executive shall agree to modification of the
affected restriction(s) to permit enforcement to the maximum extent allowed
by
law.
Waiver
37.
A
waiver of any of Executive's obligations under this Agreement or any other
modification of this Agreement shall be ineffective unless it is set forth
in
writing and signed by ParkerVision's Chief Executive Officer.
38.
The
parties acknowledge that the restrictive covenants in this Agreement are
essential independent elements of this Agreement and that but for Executive
agreeing to comply with them, ParkerVision would not have employed or have
continued to employ Executive. Accordingly, the existence of any claim by
Executive against ParkerVision, whether based on this Agreement or otherwise,
shall not operate as a defense to ParkerVision's enforcement of any restrictive
covenant against Executive.
Term
of Agreement
39.
Except
as provided in paragraph 40 below, this Agreement shall be effective on this
date shall continue through May 31, 2011; thereafter, this Agreement shall
continue year-to-year unless at least ninety (90) days before May 31, either
party delivers written notice to the other of his or its intent not to renew
this Agreement for the following calendar year.
40.
The
restrictive covenants in this Agreement still continue in full force and effect
for the periods referenced in paragraphs 28, 29, 30, 31 and 34
above.
Assignment
41.
ParkerVision's
rights and obligations under this Agreement shall inure to the benefit of and
be
binding upon ParkerVision's assigns and successors. Since this Agreement is
personal to Executive, Executive's obligations under this Agreement may not
be
assigned or transferred to any other.
Savings
Clause
42.
If
any provision(s) of this Agreement is declared invalid or unenforceable, the
other provisions of this Agreement shall remain in full force and effect and
shall be construed in a fashion which gives meaning to all of the other terms
of
this Agreement.
Arbitration
and Enforcement
43.
Except
as provided herein, any dispute or controversy between the parties, including
any arising under or in connection with this Agreement, shall be settled
exclusively by arbitration before a single arbitrator in Jacksonville, Florida
in accordance with the Employment Arbitration Rules of the American Arbitration
Association then in effect. Nothing in this section shall be construed, however,
to limit rights, remedies and ability to enforce in a court of competent
jurisdiction ParkerVision’s rights under the restrictive covenants set forth in
this Agreement.
Page
12 of
19
44.
As
to contractual or other common law claims, the arbitrator shall award the
prevailing party its reasonable costs and attorney’s fees incurred in the
arbitration proceeding. If Executive brings any such claims against
ParkerVision, he shall be deemed to be the prevailing party if he prevails
on at
least one of his material claims. Costs and attorney’s fee awards under
statutory claims shall be governed by the statute(s) at issue.
45.
The
laws of the State of Florida shall govern this Agreement, and any action to
enforce the restrictive covenants in this Agreement shall be brought in a court
of competent jurisdiction in Xxxxx County, Florida, where jurisdiction and
venue
shall lie.
Incorporation
46.
This
Agreement expressly supersedes all practices, understandings, and agreements,
whether written or oral, not specifically set forth in this Agreement, regarding
the subject matter of this Agreement. This Agreement constitutes the entire
agreement between ParkerVision and Executive concerning the subject matter
of
this Agreement, and there are no other agreements or understandings concerning
the subject matter of this Agreement which are not fully set forth in this
Agreement.
Notice
47.
Written notices contemplated by this Agreement shall be deemed to have been
duly
given when personally delivered or when mailed by U.S. registered or certified
mail, return receipt requested and postage prepaid. In the case of Executive,
mailed notices shall be addressed to him at the home address which he most
recently communicated to ParkerVision in writing or his office address. In
the
case of ParkerVision, mailed notices shall be addressed to its corporate
headquarters, and all notices shall be directed to the attention of its
Secretary.
Interpretation
48.
The severance provisions and all terms used in this Agreement shall be construed
and administered in a manner so as to comply with the applicable requirements
of
section 409A of the Internal Revenue Code of 1986, as amended, and Treasury
Regulations issued thereunder.
Page
13 of
19
IN
WITNESS WHEREOF, the parties to this Agreement have executed this Agreement
at
Jacksonville, Florida on the 4th day of June,
2008.
| ParkerVision, Inc. | ||||
| By: | /s/ Xxxxxxx Xxxxxx | |||
|
Witness
|
Xxxxxxx Xxxxxx | |||
| Chief Executive Officer | ||||
| /s/ Xxxxxxx Xxxxxxx | ||||
|
Witness
|
Xxxxxxx Xxxxxxx |
Page
14 of
19
Schedule
of RSU Grants*
Exhibit
A to Executive Employment Agreement
|
#
of RSU’s
|
Type
of RSU Grant
|
|
|
20,000
|
Time
based with quarterly vesting over one (1) year period
|
|
|
55,000
|
Time
based with quarterly vesting over three (3) year period
|
|
|
55,000
|
Xxxxx
xxxx at 3rd
anniversary with acceleration based on share price
performance
|
| * |
Refer
to the RSU Agreements executed in connection with the Employment
Agreement
for the specific terms of each RSU granted
hereunder.
|
Page
15 of
19
SEVERANCE
AGREEMENT AND RELEASE
EXHIBIT
B TO EXECUTIVE EMPLOYMENT AGREEMENT
This
Severance Agreement and Release ("this Agreement") is made and entered into
by
and between ParkerVision,
Inc. and its successors and assigns (hereinafter "ParkerVision") and
___________________ and
his/her heirs, spouse, assigns, executors, administrators and attorneys
(hereinafter referred to as "Executive").
Pursuant
to his/her Executive Employment Agreement with ParkerVision, as a condition
and
in consideration of his/her receiving the Severance Package as that term is
defined in the Executive Employment Agreement, Executive and ParkerVision,
desiring to resolve all actual or potential claims Executive may have against
ParkerVision, agree as follows:
1. Obligation
of ParkerVision:
In
consideration of Executive's obligations set forth below, ParkerVision shall
provide to Executive the Severance Package described in paragraph 14 of the
Executive Employment Agreement between ParkerVision and Executive effective
on
[insert
effective date].
2. Obligations
of Executive:
In
consideration of ParkerVision's obligations set forth in this
Agreement:
(a) Executive
waives, and releases ParkerVision, and its directors, officers, shareholders,
employees, representatives, benefit plan administrators, agents and attorneys,
both individually and collectively, (hereinafter collectively referred to as
"the Released Parties") from, all claims, rights, and causes of action, both
known and unknown, in law or in equity, of any kind whatsoever that Executive
has or could have maintained against any of the Released Parties through the
date of signing this Agreement, including any claim for attorney's fees. Without
limiting the generality of the foregoing, Executive waives, and releases all
of
the Released Parties from, all claims, rights, and causes of action relating
to
or arising out of Executive’s employment with, conditions of employment with,
compensation by, or separation of employment from, ParkerVision, including,
without limitation, any claims, rights, charges, or causes of action arising
under Title VII of the Civil Rights Act of 1964, as amended; the Civil Rights
Acts of 1866 and 1871; the Age Discrimination in Employment Act of 1967, as
amended (hereinafter referred to as "the ADEA"); Executive Order Nos. 11246
and
11478; the Equal Pay Act of 1963, as amended; the Employee Retirement Income
Security Act of 1974, as amended; the Rehabilitation Act of 1973, as amended;
the Florida Civil Rights Act of 1992; Florida Statutes §§ 440.205 and 448.102;
the Americans with Disabilities Act of 1990, as amended; the Family and Medical
Leave Act of 1993; the National Labor Relations Act of 1935, as amended; the
Fair Labor Standards Act of 1938, as amended; the Occupational Safety and Health
Act of 1970, as amended; and the Consolidated Omnibus Budget Reconciliation
Act
of 1985, as amended, and any other federal or state law or local ordinance,
including any suit in tort (including fraud, promissory estoppel and negligence)
or contract (whether oral, written or implied), including any claim based on
alleged breach of his/her Executive Employment Agreement, or any other common
law or equitable basis of action, except for any claim which may not lawfully
be
waived in this manner.
(b) Executive
represents that while he/she is not legally barred from filing a charge of
discrimination, he/she has not filed, and does not intend to file, any charge
of
discrimination against any of the Released Parties with any federal, state
or
local agency and understands that ParkerVision has reasonably relied on his/her
representations in this paragraph in agreeing to perform the obligation set
forth in paragraph 1 of this Agreement. Executive further waives any right
to
recovery based on any charge of discrimination filed by him/her or on his/her
behalf.
Page
16 of
19
(c) Executive
shall refrain from expressing (or causing others to express) to any third party
any derogatory or negative opinions or statements concerning ParkerVision or
any
of ParkerVision's executives, shareholders, managers, supervisors,
representatives or employees, or concerning ParkerVision's
operations.
3. Non-Disclosure.
Executive shall not disclose, either directly or indirectly, any of the terms
of
this Agreement, including, but not limited to, the amount of the payments set
forth in paragraph 1 or that ParkerVision is paying Executive, to any person
or
organization, including, but not limited to, members of the press and media,
present and former employees, vendors, suppliers, or other members of the
public. Executive may only disclose those facts in a privileged context
(attorney-client, accountant-client or husband-wife) with the understanding
that
such disclosure will remain privileged and will not be communicated to third
parties. If asked about his/her separation from employment with ParkerVision,
Executive shall state only that he/she has left his/her employment with
ParkerVision amicably to pursue other opportunities.
4. Restrictive
Covenants.
Executive acknowledges that he/she shall also continue to adhere to those
provisions of his/her Executive Employment Agreement with ParkerVision relating
to non-competition and confidentiality of ParkerVision information, and the
Restrictive Covenants in his/her Executive Employment Agreement with
ParkerVision are hereby incorporated into this Agreement by reference as if
fully set forth in this Agreement.
5. Non-Admission.
Neither
this Agreement, nor anything contained in it, shall be construed as an admission
by any of the Released Parties of any liability, wrongdoing or unlawful conduct
whatsoever.
6. Severability.
If a
court of competent jurisdiction invalidates any provision of this Agreement,
then all of the remaining provisions of this Agreement shall continue unabated
and in full force and effect.
7. Entire
Agreement.
This
Agreement contains the entire understanding and agreement between the parties
regarding the subject matter of this Agreement and shall not be modified or
superseded except upon express written consent of the parties to this Agreement.
Executive represents and acknowledges that in executing this Agreement, he/she
does not rely and has not relied upon any representation or statement made
by
ParkerVision or its agents, representatives or attorneys which is not set forth
in this Agreement.
8. Governing
Law.
The
laws of the State of Florida shall govern this Agreement, and any action to
enforce this Agreement shall be brought in Xxxxx County, Florida where
jurisdiction and venue shall lie.
9. Agreement
Not to be Used as Evidence.
This
Agreement shall not be admissible as evidence in any proceeding except one
in
which a party to this Agreement seeks to enforce this Agreement or alleges
this
Agreement has been breached.
10. Attorneys’
Fees.
In any
action to enforce this Agreement, the prevailing party shall be entitled to
recovery of its reasonable attorneys' fees and costs.
Page
17 of
19
11.
Opportunity
to Consider and Confer.
Executive acknowledges that he/she has had the opportunity to read, study,
consider, and deliberate upon this Agreement. He/she further acknowledges and
understands that he/she has been given a period of twenty-one (21) days in
which
he/she may, but is not required to, consider this Agreement, that after he/she
signs it, he/she has seven (7) days in which to revoke it. Executive further
acknowledges that he/she fully understands and completely agrees with all of
the
terms of this Agreement and that he/she has been, and hereby is, specifically
advised to consult with his/her attorney before executing this
Agreement.
IN
WITNESS WHEREOF, and intending to be legally bound hereby, ParkerVision and
Executive hereby execute this Severance Agreement and Release, consisting of
four (4) pages (including this signature page) and including eleven (11)
enumerated paragraphs, by signing below voluntarily and with full knowledge
of
the significance of all of its provisions.
PLEASE
READ CAREFULLY. THIS RESIGNATION AGREEMENT, WAIVER AND RELEASE INCLUDES A
RELEASE OF ALL KNOWN AND UNKNOWN CLAIMS.
|
Sworn
to and subscribed before me
|
|
|
this
day of _____________, 20__.
|
|
|
|
|
|
_____________________________
|
|
|
Notary
Public, State of Florida
|
Executive
|
|
at
Large. My Commission Expires:
|
|
|
Executed
at ___________, _______, this day of ___________________,
20__.
|
|
|
Sworn
to and subscribed before me
|
|
|
this
day of _____________, 20__.
|
|
|
|
|
|
By:
_____________________________
|
|
|
Notary
Public, State of Florida
|
ParkerVision,
Inc.
|
|
at
Large. My Commission Expires:
|
|
|
Executed
at Jacksonville, Florida, this day of ___________________,
20__.
|
Page
18 of
19
EXHIBIT
C
PRIOR
INVENTIONS
|
For
ParkerVision, Inc.
|
||
| ________________________________ |
By:__________________________________
|
|
|
Employee
Signature
|
||
|
Its:__________________________________
|
||
| ________________________________ | ________________________________ | |
|
Date
|
Date
|
Page
19 of
19
