ACCELERATION OPTIONS
STOCK OPTION AGREEMENT
AGREEMENT dated July 23, 1998 between XXXXXXX X. XXXXXXX, residing at
0000 Xxxxxx Xxxxxx Xxx Xxxxx, Xxxxxxxxxxxx, Xxxxxxx 00000 (the "Employee" or
"Grantee") and PARKERVISION, INC., a Florida corporation having its principal
office at 0000 Xxxxxxxxxx Xxx, Xxxxxxxxxxxx, Xxxxxxx 00000 ("Company").
WHEREAS, on May 22, 1998, the Board of Directors of the Company
authorized the employment of the Employee pursuant to the terms of an Employment
Agreement executed simultaneously herewith ("Employment Agreement"), and the
grant to the Employee of an option to purchase an aggregate of 250,000 of the
authorized but unissued shares of the Common Stock of the Company, $.01 par
value ("Common Stock"), on the terms and conditions set forth in this Agreement;
and
WHEREAS, the Employee desires to acquire said option on the terms and
conditions set forth in this Agreement;
IT IS AGREED:
1. Grant of Option. The Company hereby grants to the Employee the right
and option to purchase all or any part of an aggregate of 250,000 shares of the
Common Stock on the terms and conditions set forth herein ("Option"). The Option
is a non-qualified stock option not intended to qualify under any section of the
Internal Revenue Code of 1986, as amended, and is not granted under any plan.
2. Exercise Price. The purchase price of each share of Common Stock
subject to the Option ("Option Shares") shall be $21.375.
3. Vesting and Exercisability.
(a) (i) The entire Option shall vest and become exercisable on
December 15, 2003, subject to accelerated vesting, as described below. After a
portion of the Option vests and becomes exercisable, it shall remain
exercisable, except as otherwise provided herein, until the close of business on
June 15, 2008 (the "Exercise Period"). The Option may be exercised, except as
provided in subparagraphs (b) and (c), below, only if the Employee at the time
of exercise is employed by the Company and shall have been so employed
continuously since the date of this Agreement.
(ii) Notwithstanding the foregoing, if the last
sales price of the Common Stock has been at least equal to the "Trigger Price"
indicated below for a period of 20 consecutive trading days during the
applicable "Year" indicated below ("Stock Price Test"), then Options to purchase
the number of "Accelerated Option Shares" indicated below shall vest and become
exercisable at the close of business on the 20th consecutive trading day:
Year 1998 1999 2000 2001 2002
Trigger Price $30 $34 $38 $42 $46
Accelerated Option Shares 25,000 50,000 60,000 70,000 45,000
------ ------ ------ ------ ------
(iii) If the Accelerated Option Shares do not vest
and become exercisable as a result of the Stock Price test in any given year
("Vesting Year") then, on or prior to April 30 of the following year, the
Company's independent public accountants shall determine the increase, if any,
in the Company's "Gross Profit" (as defined below) from the year immediately
preceding the Vesting Year ("Prior Year") to the Vesting Year. "Gross Profit"
shall mean the Company's gross margin ($4,683,655 for year ended December 31,
1997), as reflected on the audited financial statements of the Company. If there
has been an increase in Gross Profit, then there shall immediately vest and
become exercisable such number of Option Shares as shall be determined by
multiplying the number of Accelerated Option Shares available for accelerated
vesting in the Vesting Year under the Stock Price Test (as indicated above), by
the percentage increase in Gross Profit; provided, however, that the number of
Option Shares so vesting shall not exceed the number of Accelerated Option
Shares which remain unvested for the Vesting Year and years subsequent (but not
prior) thereto.
(b) If the Employee's employment with the Company terminates
for any reason prior to the time that the Option has been fully exercised, the
unexercised portion of the Option on the date of termination of employment
(whether exercisable or not) shall immediately expire; provided, however, that
(i) if the Employee's employment is terminated by reason of the Employee's
disability (pursuant to Section 3.3 of the Employment Agreement) or death
(pursuant to Section 3.2 of the Employment Agreement), then the portion of the
Option which is then fully vested and exercisable may be exercised for a period
of five years from the date of such termination of employment or until the
expiration of the Exercise Period, whichever is shorter; and (ii) in the event
of a \'93Without Cause Termination\'94 (pursuant to Section 3.5(a) of the
Employment Agreement) or Executive terminates his employment for "Good Reason"
(pursuant to Section 3.5(b) of the Employment Agreement), then, only for
purposes of determining Employee's rights under the Option, Employee shall be
considered to be an employee of the Company for a period of 18 months after such
termination and the portion of the Option that would vest pursuant to paragraph
(a), above, with respect to any Vesting Year ending during such 18 month period
shall (if the conditions to vesting are satisfied) vest and become exercisable
in accordance with paragraph (a) and, in case such 18 month period includes any
portion of a calendar year (a "Partial Year") but does not include December 31
of such year, then a Partial Year Portion (as defined below) of the Option which
would vest pursuant to paragraph (a), above, with respect to the Vesting Year
ending on the December 31 following such 18 month period, shall (if the
conditions to vesting are satisfied) vest and become exercisable in accordance
with paragraph (a), and any portion of the Option which was fully vested and
exercisable at the time of termination or which becomes exercisable pursuant to
this clause (ii) may be exercised for a period of five years from the date of
such termination of employment or until the expiration of the Exercise Period,
whichever is shorter. A "Partial Year Portion" shall mean that portion of the
Option that would vest with respect to a Vesting Year determined by multiplying
the Accelerated Option Shares available for vesting during such year by a
fraction, the numerator of which is the number of whole calendar months during
the Vesting Year in which the Employee was considered to be employed by the
Company, and the denominator of which is twelve.
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(c) Notwithstanding the foregoing, in the event of the
occurrence of a "Change in Control," as defined below, then all of the Option
vesting periods hereunder shall be accelerated, the entire Option will
immediately and entirely vest, and the Employee will have the right to
immediately purchase all Option Shares on the terms set forth in this Agreement
through the end of the Exercise Period.
4. Rights as a Stockholder. The Employee shall not have any of the
rights of a stockholder with respect to the Option Shares until such shares have
been issued after the due exercise of the Option.
5. Adjustments. In the event of a stock split or exchange, stock
dividend, combination of shares, or any other similar change in the Common Stock
of the Company as a whole, the Board of Directors of the Company shall make
equitable, proportionate adjustments in the number and kind of shares covered by
the Option and in the option price thereunder, in order to preserve the
Employee's then proportionate interest in the Company and to maintain the
aggregate option price.
6. Transferability of Option and Option Shares.
(a) The Option shall not be assignable or transferable except
in the event of the death of the Employee, in which case the transfer shall be
by will or by the laws of descent and distribution. No transfer of the Option by
the Employee by will or by the laws of descent and distribution shall be
effective to bind the Company unless the Company shall have been furnished with
written notice thereof and a copy of the will and such other evidence as the
Company may deem necessary to establish the validity of the transfer and the
acceptance by the transferee or transferees of the terms and conditions of the
Option.
(b) The Employee hereby represents and warrants to the Company
that he is acquiring the Option for his own account and not with a view to the
distribution thereof.
(c) The Employee hereby agrees that he shall not sell,
transfer by any means or otherwise dispose of the Option Shares acquired by him
without registration under the Securities Act of 1933 ("Act"), or in the event
that they are not so registered, unless (i) an exemption from the Act is
available thereunder, (ii) the Employee has furnished the Company with notice of
such proposed transfer and (iii) the Company's legal counsel, in its reasonable
opinion, shall deem such proposed transfer to be so exempt.
7. Registration Rights. The Company hereby grants to Employee the right
to have the Option Shares registered (to the extent legally permissible) on a
registration statement on Form S-8 to be filed by the Company on or prior to
August 31, 1998 and the Company shall take such action with respect to such Form
S-8 as may be necessary so that, upon exercise, the shares of Common Stock
issued thereby will be freely transferrable (subject only to applicable volume
limitations contained in Rule 144 under the Act). Notwithstanding the foregoing,
(i) the Company shall have no obligation hereunder in connection with any such
registration statement unless the Option Shares can legally be registered
thereby and the Employee provides to the Company information with respect to his
ownership of Option Shares, manner of proposed disposition and such other
matters as the Company shall reasonably request for disclosure in the
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registration statement or any amendment thereto; and (ii) the Company will not
be obligated to prepare, file or print any "reoffer prospectus" in connection
with any "control securities" or "restricted securities" as those terms are
defined in General Instruction C to Form S-8. The Company shall bear all fees,
costs and expenses incurred by it in connection with the filing with the
Securities and Exchange Commission of such registration statement.
8. Employee's Acknowledgments. The Employee hereby acknowledges that:
(a) All reports and documents required to be filed by the
Company with the Securities and Exchange Commission pursuant to the Securities
Exchange Act of 1934 within the last 12 months have been made available to the
Employee for his inspection.
(b) If he exercises the Option, he may have to bear the
economic risk of the investment in the Option Shares for an indefinite period of
time because the Option Shares may not have been registered under the Act and
cannot be sold by him unless they are registered under the Act or an exemption
therefrom is available thereunder.
(c) In his dealings with the Company, he has had both the
opportunity to ask questions of and receive answers from the officers and
directors of the Company and all persons acting on its behalf concerning the
terms and conditions of the offer made hereunder and to obtain any additional
information to the extent the Company possesses or may possess such information
or can acquire it without unreasonable effort or expense necessary to verify the
accuracy of the information obtained pursuant to subparagraph (a) above.
(d) The Company shall place stop transfer orders with its
transfer agent against the transfer of the Option Shares in the absence of
registration under the Act or an exemption therefrom.
(e) In the absence of registration under the Act, the
certificates evidencing the Option Shares shall bear the following legend:
"The Shares represented by this certificate have been acquired for investment
and have not been registered under the Securities Act of 1933. The shares may
not be sold or transferred in the absence of such registration or an exemption
therefrom under said Act."
9. Exercise of Option.
(a) Subject to the terms and conditions of the Agreement, the
Option may be exercised from time to time, in whole or in part, by written
notice to the Company at its principal place of business. Such notice shall
state the election to exercise the Option and the number of Option Shares in
respect to which it is being exercised, and, if the Option Shares are not then
registered for resale under the Act, such notice shall contain a representation
and agreement by the person or persons so exercising the Option that the Option
Shares are being purchased for investment and not with a view to the
distribution or resale thereof. Such notice shall be accompanied by payment of
the full purchase price of the Option Shares.
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(b) Unless the Company consents to a form of \'93cashless\'94
exercise, payment of the purchase price shall be made in cash or by check, bank
draft or money order payable to the order of the Company. The Company shall
consent to Executive utilizing the appreciated value of the Option (occasioned
by a substantial increase in the market price of a share of Common Stock over
the exercise price of the Option) to pay the purchase price if the Company, in
its reasonable discretion, determines that it will not adversely affect the
Company in any way other than not receiving cash (it being understood that any
charge against the Company\'92s earnings by virtue of the cashless exercise
shall be deemed to be an adverse effect if exercising the Option for cash would
have resulted in a lesser or no charge to earnings).
(c) The Company shall issue a certificate or certificates
evidencing the Option Shares as soon as practicable after the notice is received
and the payment has cleared the banking system. The certificate or certificates
evidencing the Option Shares shall be registered in the name of the person or
persons so exercising the Option.
(d) The Company hereby represents and warrants to the Employee
that the Option Shares, when issued and delivered by the Company to the Employee
in accordance with the terms and conditions hereof, will be duly and validly
issued and fully paid and non-assessable.
10. Withholding Taxes. Not later than the date as of which an amount
first becomes includible in the gross income of Employee for Federal income tax
purposes with respect to the Option, Employee shall pay to the Company, or make
arrangements satisfactory to the Company regarding the payment of, any Federal,
state and local taxes of any kind required by law to be withheld or paid with
respect to such amount. The obligations of the Company pursuant to this
Agreement shall be conditional upon such payment or arrangements with the
Company and the Company shall, to the extent permitted by law, have the right to
deduct any such taxes from any payment of any kind otherwise due to the Employee
from the Company. Unless the Company consents to a form of "cashless" payment,
any required withholding tax shall be paid in cash.
11. Miscellaneous.
(a) All notices provided for in this Agreement shall be in
writing, and shall be deemed to have been duly given when delivered personally
to the party to receive the same, when transmitted by electronic means, or when
mailed first class postage prepaid, by certified mail, return receipt requested,
addressed to the party to receive the same at his or its address set forth
below, or such other address as the party to receive the same shall have
specified by written notice given in the manner provided for in this Section 11.
All notices shall be deemed to have been given as of the date of personal
delivery, transmittal or mailing thereof.
If to Employee:
Xxxxxxx X. Xxxxxxx
0000 Xxxxxx Xxxxxx Xxx Xxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
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If to the Company:
ParkerVision, Inc.
0000 Xxxxxxxxxx Xxx
Xxxxxxxxxxxx, Xxxxxxx 00000
Attn: Chairman of the Board
(b) This Agreement sets forth the entire agreement of the
parties relating to he Option and is intended to supersede all prior
negotiations, understandings and agreements. No provisions of this Agreement may
be waived or changed except by a writing by the party against whom such waiver
or change is sought to be enforced. The failure of any party to require
performance of any provision hereof or thereof shall in no manner affect the
right at a later time to enforce such provision.
(c) All questions with respect to the construction of this
Agreement and the rights and obligations of the parties hereunder shall be
determined in accordance with the law of the State of Florida applicable to
agreements made and to be performed entirely in Florida.
(d) This Agreement shall inure to the benefit of and be
binding upon the successors and assigns of the Company. This Agreement shall not
be assignable by Employee, but shall inure to the benefit of and be binding upon
Employee's heirs and legal representatives.
(e) Should any provision of this Agreement become legally
unenforceable, no other provision of this Agreement shall be affected, and this
Agreement shall continue as if the Agreement had been executed absent the
unenforceable provision.
(f) "Change in Control" shall occur if:
(i) any "person" or "group" (within the meaning of
Sections 13(d) and 14(d)(2) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act") becomes the "beneficial owner" (within the meaning of Rule
13d-3 under the Exchange Act) of common stock having thirty-five percent (35%)
or more of the total voting power of all of the Company's voting capital stock
then outstanding, unless such person or group is or includes (a) an individual
who, as of the date of this Agreement, is an executive officer of the Company
and holds beneficial ownership in excess of twenty-five percent (25%) of the
outstanding Common Stock of the Company, or an Affiliate or Associate (within
the meaning of Rule 12b-2 under the Exchange Act) of such individual, or (b) an
underwriter who obtains such thirty-five percent (35%) interest in connection
with a public offering;
(ii) a merger or consolidation of the Company other
than one resulting in the Company's voting securities outstanding immediately
prior thereto continuing to represent (either by remaining outstanding or by
being converted into voting securities of the surviving entity) at least
sixty-five percent (65%) of the combined voting power of the voting securities
of the Company and such surviving entity outstanding immediately after such
merger or consolidation; or
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(iii) the sale or other disposition of all, or
substantially all, of the Company's assets, or the approval of a plan of
liquidation of the Company other than a sale to an entity which is owned by the
shareholders of the Company in substantially the same proportion as they own the
Company immediately prior to such sale.
IN WITNESS WHEREOF, the parties have executed this Agreement on the
date first above written.
PARKERVISION, INC.
By: ___________________________________
Xxxxxxx Xxxxxx, Chairman of the Board
and Chief Executive Officer
____________________________________
XXXXXXX X. XXXXXXX
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