TRANSFER AND REGISTRATION RIGHTS AGREEMENT
------------------------------------------
This Transfer and Registration Rights Agreement ("Agreement") is executed
by ParkerVision, Inc., a Florida corporation, with an office at 0000 Xxxxxxxxxx
Xxx, Xxxxxxxxxxxx, Xxxxxxx 00000 (hereinafter referred to as the "ISSUER") and
Peconic Fund Ltd., a company organized in The Cayman Islands, with an office at
the address on the signature page hereof (hereinafter referred to as the
("PURCHASER") in reliance upon the exemption contained in Section 4(2) of the
Securities Act of 1933, as amended ("Securities Act").
By Subscription Agreement between the ISSUER and Leucadia National
Corporation ("Leucadia") dated May 22, 2000, Leucadia purchased 529,475 shares
of the ISSUERS's Common Stock, $.01 par value ("Common Stock"), and a common
stock purchase option to purchase 529,475 shares of Common Stock.
By agreement between Leucadia and PURCHASER dated the date hereof, Leucadia
has sold to PURCHASER 34,592 shares of Common Stock ("Shares") and a portion of
the common stock purchase option to purchase 34,592 shares of Common Stock
("Purchase Option") which it purchased from ISSUER.
Each of the parties hereto represents and warrants to, and agrees with, the
other as follows:
1. PURCHASER REPRESENTATIONS.
(a) TRANSACTIONAL REPRESENTATIONS. PURCHASER represents and warrants to
ISSUER as follows:
1. PURCHASER is purchasing the Shares and Purchase Option (including
the underlying Common Stock) for its own account for investment
purposes and not with a view toward distribution.
2. PURCHASER understands that the Shares and Purchase Option (and
the underlying Common Stock) have not been registered under the
Securities Act and that such securities are "restricted securities" as
defined in Rule 144 promulgated under the Securities Act. PURCHASER
further understands that the Shares and Purchase Option (and
underlying Common Stock) may not be offered, resold, pledged or
otherwise transferred by such PURCHASER except: A) (1) pursuant to an
effective registration statement under the Securities Act, or (2)
pursuant to an available exemption from the registration requirements
of the Securities Act; and B) in accordance with all applicable
securities laws of the states of the United States and other
jurisdictions;
3. PURCHASER understands that the purchase of the Shares and
Purchase Option (and underlying Common Stock) involves a high degree
of risk and further acknowledges that it can bear the economic risk of
the purchase of the securities, including the total loss of its
investment;
4. PURCHASER understands that the Shares and Purchase Option (and
underlying Common Stock) are being sold to it in reliance on specific
exemptions from the registration requirements of federal and state
securities laws and that the ISSUER is relying upon the truth and
accuracy of the representations, warranties,
1
agreements, acknowledgments and understandings of PURCHASER set forth
herein;
5. PURCHASER is sufficiently experienced in financial and business
matters to be capable of evaluating the merits and risks of its
investment, and to make an informed decision relating thereto; and
6. In evaluating its investment, PURCHASER has consulted its own
investment and/or legal and/or tax advisors.
(b) CURRENT PUBLIC INFORMATION. PURCHASER acknowledges that PURCHASER has
available to it copies of the ISSUER's Annual Report on Form 10-K for
the year ended December 31, 1999, as amended by Form 10-K/A, and Form
10-Q for the quarter ended March 31, 2000, and Proxy Statement for the
Annual Meeting to be held July 13, 2000, all as filed with the
Securities and Exchange Commission (the "SEC"). PURCHASER further
acknowledges that PURCHASER has read and understands the Risk Factors
set forth in Exhibit 99.1 to the ISSUER's Form 10-K for the year ended
December 31, 1999.
(c) INDEPENDENT INVESTIGATION; ACCESS. PURCHASER acknowledges that, in
making its decision to purchase the Shares and Purchase Option, it has
relied on the publicly available information about the ISSUER and upon
independent investigations made by it and its representatives, if any.
(d) NO GOVERNMENT RECOMMENDATION OR APPROVAL. PURCHASER understands that
no federal or state agency has passed on or made any finding or
determination relating to the fairness of an investment in the Shares
and Purchase Option, or has passed or made, or will pass on or make,
any recommendation or endorsement of the Shares and Purchase Option.
2. LEGEND. PURCHASER understands that the ISSUER will instruct its
transfer agent to place a stop transfer order with respect to the certificates
representing the Shares and that such certificates will bear the following
legend, as well as a legend describing the restriction referred to in Section
3(b) hereof: "The shares represented by this certificate have been acquired for
investment and have not been registered under the Securities Act of 1933, as
amended (the "Securities Act"). Transfer of these shares is prohibited except
pursuant to registration under the Securities Act or pursuant to an available
exemption from registration."
3. REGISTRATION RIGHT.
(a) REGISTRATION. The ISSUER shall file a registration statement
under the Securities Act ("Registration Statement") with the
Securities and Exchange Commission registering the Shares and the
shares underlying the Purchase Option for re-offer and re-sale.
The ISSUER agrees to have the Registration Statement declared
effective by May 23, 2001, the first anniversary of the purchase
of the original issuance of the securities by Leucadia
("Anniversary"). Once the Registration Statement is declared
effective, the ISSUER shall keep the Registration Statement
effective and current until all the securities registered
thereunder are sold or may be sold freely by PURCHASER in any 90
day period without registration under an appropriate
2
exemption under the Securities Act. If the Registration Statement
has not been declared effective by the Anniversary or, if it is
so declared effective but after the Anniversary becomes subject
to a stop order or is not otherwise current for use by PURCHASER,
then during such periods, the PURCHASER may have such securities
included on any other applicable registration statement filed by
ISSUER, which "piggyback" registration rights will be subject to
such reasonable terms as are ordinarily offered to investors
purchasing similar securities to those purchased under this
Subscription Agreement.
(b) PUBLIC RESALE LIMITATION. The PURCHASER agrees that it will not
sell any of the Shares or shares of Common Stock underlying the
Purchase Option pursuant to the Registration Statement prior to
the Anniversary, without the written consent of the ISSUER, which
consent may be withheld for any reason without explanation.
(c) TERMS. The ISSUER shall bear all of its fees and expenses
attendant to registering the Shares, but PURCHASER shall pay any
and all underwriting commissions and the expenses of any legal
counsel selected by PURCHASER to represent it in connection with
the registration or sale of the Shares. Promptly upon request,
ISSUER will provide to PURCHASER such number of copies of the
prospectus forming a part of the Registration Statement as are
reasonably requested by the PURCHASER, and all supplements to
such prospectus. ISSUER will promptly notify PURCHASER at any
time that the Registration Statement or the prospectus may not be
used either due to the change of material information contained
therein or the omission of material information therefrom or upon
the receipt by the ISSUER of a cease and desist or stop order of
the Securities and Exchange Commission. The ISSUER will use its
commercially reasonably efforts to amend or supplement the
Registration Statement to permit its continued use by the
PURCHASER.
(d) INDEMNIFICATION BY THE ISSUER. The ISSUER agrees to indemnify and
hold harmless PURCHASER, its directors and officers and each
person, if any, who controls PURCHASER within the meaning of the
Securities Act and/or the Securities Exchange Act of 1934, as
amended ("Exchange Act"), against any losses, claims, damages or
liabilities, joint or several, to which PURCHASER or such person
may become subject, under the Securities Act, Exchange Act or
otherwise, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon
(i) any untrue statement or alleged untrue statement of a
material fact contained (A) in any prospectus or registration
statement for the Shares or (B) in any blue sky application or
other document executed by the ISSUER specifically for blue sky
purposes or based upon any other written information furnished by
the ISSUER or on its behalf to any state or other jurisdiction in
order to qualify any or all of the Shares under the securities
laws thereof (any such application, document or information being
hereinafter called a "Blue Sky Application"), or (ii) the
omission or alleged omission by the ISSUER to state in any
prospectus or registration statement for the Shares or in any
Blue Sky Application a material fact required to be stated
therein or necessary to make
3
the statements therein, in light of the circumstances under which
they were made, not misleading, and will reimburse PURCHASER and
each such person for any legal or other expenses reasonably
incurred by PURCHASER or such person in connection with
investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the ISSUER will not
be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement or omission or
alleged omission made in reliance upon and in conformity with
information regarding PURCHASER which is furnished in writing to
the ISSUER by PURCHASER or its representatives for inclusion in
any registration statement for the Shares or any such Blue Sky
Application ("Non-Indemnity Events").
(e) INDEMNIFICATION BY THE PURCHASER. The PURCHASER agrees to
indemnify and hold harmless the ISSUER, each officer and director
of the ISSUER, and each person, if any, who controls the ISSUER
within the meaning of the Securities Act and/or the Exchange Act
against any losses, claims, damages or liabilities, joint or
several, to which the ISSUER or such person may become subject,
under the Securities Act, Exchange Act or otherwise insofar as
such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any Non-Indemnity
Event; and will reimburse the ISSUER and such persons for any
legal or other expenses reasonably incurred by the ISSUER in
connection with investigating or defending any such loss, claim,
damage, liability or action provided that such loss, claim,
damage or liability is found ultimately to arise out of or be
based upon any Non-Indemnity Event; provided that the maximum
amount of the indemnification payments by PURCHASER shall not
exceed the net sale proceeds of any of the Shares or shares of
Common Stock underlying the Purchase Option sold by the PURCHASER
pursuant to the registration statement.
(f) PROCEDURE. Promptly after receipt by an indemnified party under
this Section 3 of notice of the commencement of any action, such
indemnified party will, if a claim in respect thereof is to be
made against any indemnifying party under this Section 3, notify
in writing the indemnifying party of the commencement thereof;
and the omission so to notify the indemnifying party will relieve
the indemnifying party from any liability under this Section 3 as
to the particular item for which indemnification is then being
sought (if such failure materially prejudices the indemnifying
party), but not from any other liability which it may have to any
indemnified party. In case any such action is brought against any
indemnified party, and it notifies an indemnifying party of the
commencement thereof, the indemnifying party will be entitled to
participate therein, and to the extent that it may wish, jointly
with any other indemnifying party, similarly notified, to assume
the defense thereof, with counsel who shall be to the reasonable
satisfaction of such indemnified party, and after notice from the
indemnifying party to such indemnified party of its election so
to assume the defense thereof, the indemnifying party will not be
liable to such indemnified party under this Section 3 for any
legal or other expenses subsequently incurred by such indemnified
party in connection with the defense thereof other than
reasonable costs of
4
investigation. Any such indemnifying party shall not be liable to
any such indemnified party on account of any settlement of any
claim or action effected without the consent of such indemnifying
party, which consent shall not be unreasonably withheld.
(g) CONTRIBUTION. If the indemnification provided for in this Section
3 is unavailable to any indemnified party in respect to any
losses, claims, damages, liabilities or expenses referred to
therein, then the indemnifying party, in lieu of indemnifying
such indemnified party, will contribute to the amount paid or
payable by such indemnified party, as a result of such losses,
claims, damages, liabilities or expenses in such proportion as is
appropriate to reflect the relative fault of the ISSUER on the
one hand, and of the PURCHASER on the other hand, in connection
with the statements or omissions which resulted in such losses,
claims, damages, liabilities or expenses as well as any other
relevant equitable considerations. The relative fault of the
ISSUER on the one hand, and the PURCHASER on the other hand, will
be determined with reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the
omission to state a material fact relates to information supplied
by the ISSUER, and its relative intent, knowledge, access to
information and opportunity to correct or prevent such statement
or omission.
(h) EQUITABLE CONSIDERATIONS. The ISSUER and the PURCHASER agree that
it would not be just and equitable if contribution pursuant to
this Section 3 were determined by pro rata allocation or by any
other method of allocation which does not take into account the
equitable considerations referred to in the immediately preceding
paragraph.
(i) ATTORNEYS' FEES. The amount payable by a party under this Section
3 as a result of the losses, claims, damages, liabilities or
expenses referred to above will be deemed to include any legal or
other fees or expenses reasonably incurred by such party in
connection with investigating or defending any action or claim
(including, without limitation, fees and disbursements of counsel
incurred by an indemnified party in any action or proceeding
between the indemnifying party and indemnified party or between
the indemnified party and any third party or otherwise).
(j) DOCUMENTS TO BE DELIVERED BY PURCHASER. PURCHASER shall furnish
to the ISSUER a completed and executed questionnaire provided by
the ISSUER requesting information customarily sought of selling
security holders.
4. GOVERNING LAW. This Agreement shall be governed by and interpreted in
accordance with the rulings of the laws of the State of Florida without regard
to conflicts of law. The ISSUER and PURCHASER each hereby agrees that any
action, proceeding or claim against it arising out of, or relating in any way to
this agreement shall be brought and enforced in the courts of the State of
Florida or of the United States of America for the Middle District of Florida,
Jacksonville Division and irrevocably submits to such jurisdiction, which
jurisdiction shall be exclusive. The ISSUER and PURCHASER hereby waives any
objection to such exclusive jurisdiction and that such courts represent an
inconvenient forum. Any process or summons to be
5
served upon the ISSUER and PURCHASER may be served by transmitting a copy
thereof by registered or certified mail, return receipt requested, postage
prepaid, addressed to it at its address set forth herein. Such mailing shall be
deemed personal service and shall be legal and binding upon the ISSUER and
PURCHASER in any action, proceeding or claim. The ISSUER and PURCHASER agrees
that the prevailing party(ies) in any such action shall be entitled to recover
from the other party(ies) all of its reasonable attorneys' fees and expenses
relating to such action or proceeding and/or incurred in connection with the
preparation therefor.
5. ENTIRE AGREEMENT. This Agreement and the Purchase Option issued to
PURCHASER constitutes the entire agreement among the parties hereof with respect
to the subject matter hereof and supersedes any and all prior or contemporaneous
representations, warrants, agreements and understandings in connection
therewith. This Agreement may be amended only by a writing executed by all
parties hereto.
6. NOTICES. Any notice or other document required or permitted to be
given or delivered to the parties to this Subscription Agreement shall be
personally delivered or sent by facsimile or other form of electronic
transmission to the party at the address or addresses or telecopier number on
the signature page hereto. Unless otherwise specified in this agreement, all
notices and other documents given under this agreement shall be deemed to have
been duly given when delivered, if personally delivered, and when transmitted if
sent by facsimile or other form of electronic transmission.
IN WITNESS WHEREOF, this Agreement was duly executed on the date first
written below.
Dated this ____ day of the month of ______, 2000.
PECONIC FUND LTD. PARKERVISION, INC.
By:_____________________________ By:_______________________________
Name: Name: Xxxxxxx X. Xxxxxx
Title: Title: Chief Executive Officer
Notice Addresses: Xxxxxxx X. Xxxxxx, CEO
c/o Ramius Capital Group LLC ParkerVision, Inc.
000 Xxxxx Xxxxxx 0000 Xxxxxxxxxx Xxx
Xxx Xxxx, XX 00000 Xxxxxxxxxxxx, Xxxxxxx 00000
Facsimile: Facsimile: (000) 000-0000
with a copy to
Xxxxx Xxxx Xxxxxx, Esq.
Xxxxxxxx Mollen & Xxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile (212) 818-888
6
