Subscription Agreement
This
subscription (this “Subscription”) is
dated February __, 2009, by and between the investor identified on the signature
page hereto (the “Investor”) and
ParkerVision, Inc., a Florida corporation (the “Company”), whereby
the parties agree as follows:
WHEREAS,
pursuant to two separate underwriting agreements, each of even date hereof,
between the Company and Xxxx Capital Partner, LLC, the Company has agreed to
sell, in underwritten offerings, certain of its securities (the “Underwritten
Offerings”);
WHEREAS,
concurrently with and contingent upon the consummation of Underwritten
Offerings, the Company desires to sell, and the Investor desires to purchase
shares of the Company’s common stock;
NOW,
THEREFORE, in consideration of the mutual agreements contained herein, the
parties hereto agree as follows:
1. Subscription.
(a) Subject
to the consummation of the Underwritten Offerings, Investor agrees to buy and,
subject to acceptance as provided below, the Company agrees to sell and issue to
Investor, such number of shares (the “Shares”) of the
Company’s common stock, $0.01 par value per share (the “Common Stock”), as
are set forth on the signature page hereto, for the aggregate purchase price set
forth on the signature page hereto (the “Purchase
Price”).
(b) The
Shares have been registered pursuant to a Registration Statement on Form S-3,
Registration No. 333-156571, which registration statement (the “Registration
Statement”) has been declared effective by the Securities and Exchange
Commission and is effective on the date hereof. A final prospectus
supplement will be delivered as required by law.
(c) The
Company may accept this Subscription at any time for all or any portion of the
Shares subscribed for by executing a copy hereof as provided and notifying the
Investor within a reasonable time thereafter. The Company has the right to
reject this subscription for the Common Stock, in whole or in part for any
reason and at any time prior to the Closing (as defined below) thereon,
notwithstanding prior receipt by the Investor of notice of acceptance of the
Investor’s subscription. In the event the Investor’s subscription is
rejected, the Investor’s payment will be returned promptly to the Investor
without interest or deduction and this Subscription will have no force or
effect. The Shares subscribed for herein will not be deemed issued to
or owned by the Investor until one copy of this Subscription has been executed
by the Investor and countersigned by the Company and the Closing with respect to
the Investor’s subscription has occurred.
(d) Provided
that the full Purchase Price and a completed and manually executed copy of this
Subscription have been tendered and not returned in accordance with Section 2,
the closing of Investor’s purchase of the Shares shall occur concurrently with
the consummation of the Underwritten Offerings (the “Closing”). Promptly
thereafter, the Company shall cause the Shares to be delivered to the Investor,
which delivery shall be made by delivery of physical certificates to Investor,
or if so designated, through the facilities of The Depository Trust Company’s
DWAC system in accordance with the instructions set forth on the Investor’s
signature page attached hereto under the heading “DWAC
Instructions.”
2. Investor Delivery of
Documents and Payment. The Investor hereby tenders to the
Company (i) the full Purchase Price by check or wire transfer to hold in a
non-interest bearing account until the Closing and (ii) one completed and
manually executed copy of this Subscription. In the event that the
Closing is not consummated within 10 days of the date the Purchase Price is
delivered to the Company, unless otherwise agreed to by Investor in writing, the
Company shall return the Purchase Price to the undersigned, without interest or
deduction.
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3. Company Representations and
Warranties. The Company represents and warrants that: (a) it has
full corporate power and authority to enter into this Subscription and to
perform all of its obligations hereunder; (b) this Subscription has been duly
authorized and executed by and, when delivered in accordance with the terms
hereof, will constitute a valid and binding agreement of the Company enforceable
in accordance with its terms, except as such enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the
rights and remedies of creditors generally or subject to general principles of
equity; (c) the execution and delivery of this Subscription and the consummation
of the transactions contemplated hereby do not conflict with or result in a
breach of (i) the Company’s Certificate of Incorporation or Bylaws, or (ii) any
material agreement to which the Company is a party or by which any of its
property or assets is bound; (d) the Shares when issued and paid for in
accordance with the terms of this Subscription will be duly authorized, validly
issued, fully paid and non-assessable; (e) the Registration Statement and any
post-effective amendment thereto, at the time it became effective, did 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 not
misleading; (f) the prospectus contained in the Registration Statement, as
amended or supplemented, did not contain as of the effective date thereof, and
as of the date hereof does not contain, any untrue statement of a material fact
or omit to state a material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading; and (g) all preemptive rights or rights of first refusal held by
stockholders of the Company and applicable to the transactions contemplated
hereby have been duly satisfied or waived in accordance with the terms of the
agreements between the Company and such stockholders conferring such
rights.
4. Investor Representations,
Warranties and Acknowledgments.
(a) The
Investor represents and warrants that: (i) it has full right, power and
authority to enter into this Subscription and to perform all of its obligations
hereunder; (ii) this Subscription has been duly authorized and executed by the
Investor and , when delivered in accordance with the terms hereof, will
constitute a valid and binding agreement of the Investor enforceable against the
Investor in accordance with its terms, except as such enforceability may be
limited by bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the rights and remedies of creditors generally or subject to general
principles of equity; (iii) the execution and delivery of this Subscription and
the consummation of the transactions contemplated hereby do not conflict with or
result in a breach of (A) the Investor’s certificate of incorporation or by-laws
(or other governing documents), or (B) any material agreement or any law or
regulation to which the Investor is a party or by which any of its property or
assets is bound; (iv) it has had full access to the base prospectus included in
the Registration Statement and the Company’s periodic reports and other
information incorporated by reference therein, and was able to read, review,
download and print such materials; (v) in making its investment decision in this
offering, the Investor and its advisors, if any, have relied solely on the
Company’s public filings with the Securities and Exchange Commission; (vi) it is
knowledgeable, sophisticated and experienced in making, and is qualified to
make, decisions with respect to investments in securities representing an
investment decision like that involved in the purchase of the Shares; and (vii)
except as set forth below, the Investor is not a, and it has no direct or
indirect affiliation or association with any, National Association of Securities
Dealers, Inc. member as of the date hereof.
(If no
exceptions, write “none.” If left blank, response will be deemed to be
“none.”)
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(b) The
Investor also represents and warrants that, other than the transactions
contemplated hereunder, the Investor has not directly or indirectly, nor has any
person acting on behalf of or pursuant to any understanding with the Investor,
executed any disposition, including “short sales” as defined in Rule 200 of
Regulation SHO under the Securities Exchange Act of 1934 (the “Short Sales”), in the
securities of the Company during the period commencing from the time that the
Investor first became aware of the proposed transactions contemplated hereunder
until the date hereof (“Discussion
Time”). The Investor has maintained the confidentiality of all
disclosures made to it in connection with this transaction (including the
existence and terms of this transaction).
5. Investor Covenant Regarding
Short Sales and Confidentiality. The Investor covenants that
neither it nor any affiliates acting on its behalf or pursuant to any
understanding with it will execute any Short Sales or other disposition of
securities of the Company during the period after the Discussion Time and ending
at the time that the transactions contemplated by this Subscription are first
publicly announced through a press release and/or Form 8-K. The
Investor covenants that until such time as the transactions contemplated by this
Subscription are publicly disclosed by the Company through a press release
and/or Form 8-K, the Investor will maintain the confidentiality of all
disclosures made to it in connection with this transaction (including the
existence and terms of this transaction).
6. Miscellaneous.
(a) This
Subscription constitutes the entire understanding and agreement between the
parties with respect to its subject matter, and there are no agreements or
understandings with respect to the subject matter hereof which are not contained
in this Subscription. This Subscription may be modified only in writing
signed by the parties hereto.
(b) This
Subscription may be executed in any number of counterparts, all of which taken
together shall constitute one and the same instrument and shall become effective
when counterparts have been signed by each party and delivered to the other
parties hereto, it being understood that all parties need not sign the same
counterpart. Execution may be made by delivery by facsimile.
(c) The
provisions of this Subscription are severable and, in the event that any court
or officials of any regulatory agency of competent jurisdiction shall determine
that any one or more of the provisions or part of the provisions contained in
this Subscription shall, for any reason, be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provision or part of a provision of this Subscription
and this Subscription shall be reformed and construed as if such invalid or
illegal or unenforceable provision, or part of such provision, had never been
contained herein, so that such provisions would be valid, legal and enforceable
to the maximum extent possible, so long as such construction does not materially
adversely effect the economic rights of either party hereto.
(d) All
communications hereunder, except as may be otherwise specifically provided
herein, shall be in writing and shall be mailed, hand delivered, sent by a
recognized overnight courier service such as Federal Express, or sent via
facsimile and confirmed by letter, to the party to whom it is addressed at the
following addresses or such other address as such party may advise the other in
writing:
To the Seller: as set forth on
the signature page hereto.
To the Buyer: as set forth on the
signature page hereto.
All
notices hereunder shall be effective upon receipt by the party to which it is
addressed.
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(e) This
Subscription shall be governed by and interpreted in accordance with the laws of
the State of New York for contracts to be wholly performed in such state and
without giving effect to the principles thereof regarding the conflict of
laws. To the extent determined by such court, the prevailing party shall
reimburse the other party for any reasonable legal fees and disbursements
incurred in enforcement of, or protection of any of its rights under this
Subscription.
If the
foregoing correctly sets forth our agreement, please confirm this by signing and
returning to us the duplicate copy of this Subscription.
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PARKERVISION,
INC.
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By:
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Name:
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Number
of Shares: ___________________________
Purchase Price Per
Share: $[_______]
Aggregate
Purchase Price: $_________________
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Title:
Address for Notice:
ParkerVision,
Inc.
0000
Xxxxxxxxxx Xxx, Xxxxx 000
Xxxxxxxxxxxx,
Xxxxxxx 00000
Facsimile:
[( )_____]
Attention:
Chief Executive Officer
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INVESTOR:
__________________________________
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By: __________________________________________
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Name:
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Title:
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Address for Notice:
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______________________________________________
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______________________________________________
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______________________________________________
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Facsimile:
_____________________________________
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Attention:
_____________________________________
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DWAC Instructions:
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Name
of DTC Participant (broker-dealer at which the account or accounts to be
credited with the Shares are maintained):
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_________________________________
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DTC
Participant Number:
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_________________________________
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Name
of Account at DTC Participant being
credited
with the Shares:
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_________________________________
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Account
Number at DTC Participant being credited
with
the Shares
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_________________________________
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