10.1
INDEMNIFICATION AGREEMENT
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This Agreement, made and entered into effective as of the ___th day of
______, 2002 ("Agreement"), by and between ParkerVision, Inc., a Florida
corporation ("Corporation"), and ________________ ("Indemnitee"):
WHEREAS, highly competent persons recently have become more reluctant
to serve publicly-held corporations as directors, officers, or in other
capacities, unless they are provided with better protection from the risk of
claims and actions against them arising out of their service to and activities
on behalf of such corporation; and
WHEREAS, the current impracticability of obtaining adequate insurance
and the uncertainties related to indemnification have increased the difficulty
of attracting and retaining such persons; and
WHEREAS, the Board of Directors of the Corporation ("Board") has
determined that the inability to attract and retain such persons is detrimental
to the best interests of the Corporation's stockholders and that such persons
should be assured that they will have better protection in the future; and
WHEREAS, it is reasonable, prudent and necessary for the Corporation
to obligate itself contractually to indemnify such persons to the fullest extent
permitted by applicable law so that such persons will serve or continue to serve
the Corporation free from undue concern that they will not be adequately
indemnified; and
WHEREAS, this Agreement is a supplement to and in furtherance of
Article VII of the By-laws of the Corporation, and Section 6.4 of the Articles
of Incorporation of the Corporation, as amended, and any resolutions adopted
pursuant thereto and shall neither be deemed to be a substitute therefor nor to
diminish or abrogate any rights of Indemnitee thereunder; and
WHEREAS, Indemnitee is willing to serve and to take on additional
service for or on behalf of the Corporation on the condition that he or she be
indemnified according to the terms of this Agreement;
NOW, THEREFORE, in consideration of the premises and the covenants
contained herein, the Corporation and Indemnitee do hereby covenant and agree as
follows:
1. Definitions. For purposes of this Agreement:
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1.1 "Change in Control" means a change in control of the Corporation
occurring after the date hereof of a nature that would be required to be
reported in response to Item 6(e) of Schedule 14A of Regulation 14A (or in
response to any similar item on any similar schedule or form) promulgated under
the Securities Exchange Act of 1934, as amended ("Act"), whether or not the
Corporation is then subject to such reporting requirement provided, however,
that, without limitation, such a Change in
Control shall be deemed to have occurred if after the date hereof (i) any
"person" (as such term is used in Sections 13(d) and 14(d) of the Act) is or
becomes "beneficial owner" (as defined in Rule 13d-3 under the Act), directly or
indirectly, of securities of the Corporation representing 20% or more of the
combined voting power of the then outstanding securities of the Corporation
without the prior approval of at least two-thirds of the members of the Board in
office immediately prior to such person attaining such percentage interest; (ii)
the Corporation is a party to a merger, consolidation, sale of assets or other
reorganization, or a proxy contest, as a consequence of which members of the
Board in office immediately prior to such transaction or event constitute less
than a majority of the Board thereafter; or (iii) during any period of two
consecutive years, individuals who at the beginning of such period constituted
the Board (including for this purpose any new director whose election or
nomination for election by the Corporation's stockholders was approved by a vote
of at least two-thirds of the directors then still in office who were directors
at the beginning of such period) cease for any reason to constitute at least a
majority of the Board.
1.2 "Corporate Status" means the status of a person who is or was a
director, officer, employee, agent or fiduciary of the Corporation or of any
other corporation, partnership, joint venture, trust, employee benefit plan or
other enterprise which such person is or was serving at the request of the
Corporation.
1.3 "Disinterested Director" means a director of the Corporation who is
not and was not a party to the Proceeding in respect of which indemnification is
sought by Indemnitee.
1.4 "Expenses" means all reasonable attorneys' fees, retainers, court
costs (including trial and appeals), transcript costs, fees of experts, witness
fees, travel expenses, duplicating costs, printing and binding costs, telephone
charges, postage, delivery service fees, and all other disbursements or expenses
of the types customarily incurred in connection with prosecuting, defending,
preparing to prosecute or defend, appealing, preparing to appeal, investigating,
or being or preparing to be a witness in a Proceeding.
1.5 "Independent Counsel" means a law firm, or a member of a law firm,
that is experienced in matters of corporation law and neither presently is, nor
in the past five years has been, retained to represent: (i) the Corporation or
Indemnitee in any other matter material to either such party, or (ii) any other
party to the Proceeding giving rise to a claim for indemnification hereunder.
Notwithstanding the foregoing, the term "Independent Counsel" shall not include
any person who, under the applicable standards of professional conduct then
prevailing, would have a conflict of interest in representing either the
Corporation or Indemnitee in an action to determine Indemnitee's rights under
this Agreement. Independent Counsel shall be selected by (a) the Disinterested
Directors or (b) a committee of the Board consisting of two or more
Disinterested Directors or if (a) and (b) above are not possible, then by a
majority of the full Board.
1.6 "Proceeding" means any action, suit, arbitration, alternate dispute
resolution mechanism, investigation, administrative hearing or any other
proceeding,
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whether civil, criminal, administrative or investigative, except one initiated
by an Indemnitee pursuant to Section 11 of this Agreement to enforce his rights
under this Agreement.
2. Services by Indemnitee.
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Indemnitee agrees to serve as a director of the Corporation. Indemnitee may
at any time and for any reason resign from such position (subject to any other
contractual obligation or any obligation imposed by operation of law).
3. Indemnification - General.
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The Corporation shall indemnify, and advance Expenses to, Indemnitee as
provided in this Agreement to the fullest extent permitted by applicable law in
effect on the date hereof and to such greater extent as applicable law may
thereafter from time to time permit. The rights of Indemnitee provided under the
preceding sentence shall include, but shall not be limited to, the rights set
forth in the other Sections of this Agreement.
4. Proceedings Other Than Proceedings by or in the Right of the Corporation.
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Indemnitee shall be entitled to the rights of indemnification provided in
this Section if, by reason of his Corporate Status, he or she is, was or is
threatened to be made, a party to any threatened, pending or completed
Proceeding, other than a Proceeding by or in the right of the Corporation.
Pursuant to this Section, Indemnitee shall be indemnified against Expenses,
judgments, penalties, fines and amounts paid in settlement actually and
reasonably incurred by him or on his behalf in connection with any such
Proceeding or any claim, issue or matter therein, if he or she acted in good
faith and in a manner he or she reasonably believed to be in or not opposed to
the best interests of the Corporation, and, with respect to any criminal
Proceeding, had no reasonable cause to believe his conduct was unlawful.
5. Proceedings by or in the Right of the Corporation.
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Indemnitee shall be entitled to the rights of indemnification provided in
this Section if, by reason of his Corporate Status, he or she is, was or is
threatened to be made, a party to any threatened, pending or completed
Proceeding brought by or in the right of the Corporation to procure a judgment
in its favor. Pursuant to this Section, Indemnitee shall be indemnified against
Expenses and amounts paid in settlement (such settlement amounts not to exceed,
in the judgment of the Board, the estimated expense of litigating the Proceeding
to conclusion) actually and reasonably incurred by him or on his behalf in
connection with any such Proceeding if he or she acted in good faith and in a
manner he or she reasonably believed to be in or not opposed to the best
interests of the Corporation. Notwithstanding the foregoing, no indemnification
against such Expenses or amounts paid in settlement shall be made in respect of
any claim, issue or matter in any such Proceeding as to which Indemnitee shall
have been adjudged to be liable to the Corporation if applicable law prohibits
such indemnification unless the court in which such Proceeding shall have been
brought, was brought or is pending, shall determine that
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indemnification against Expenses or amounts paid in settlement may nevertheless
be made by the Corporation.
6. Indemnification for Expenses of Party Who is Wholly or Partly Successful.
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Notwithstanding any other provision of this Agreement, to the extent that
Indemnitee is, by reason of his Corporate Status, a party to and is successful,
on the merits or otherwise, in any Proceeding, he or she shall be indemnified
against all Expenses (and, when eligible hereunder, amounts paid in settlement)
actually and reasonably incurred by him or on his behalf in connection
therewith. If Indemnitee is not wholly successful in such Proceeding but is
successful, on the merits or otherwise, as to one or more but less than all
claims, issues or matters in such Proceeding, the Corporation shall indemnify
Indemnitee against all Expenses (and, when eligible hereunder, amount paid in
settlement) actually and reasonably incurred by him or on his behalf in
connection with each successfully resolved claim, issue or matter. For purposes
of this Section, the term "successful, on the merits or otherwise," shall
include, but not be limited to, (i) any termination, withdrawal, or dismissal
(with or without prejudice) of any Proceeding against the Indemnitee without any
express finding of liability or guilt against him, and (ii) the expiration of 90
days after the making of any claim or threat of a Proceeding without the
institution of the same and without any promise or payment made to induce a
settlement.
7. Indemnification for Expenses as a Witness.
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Notwithstanding any other provision of this Agreement, to the extent that
Indemnitee is, by reason of his Corporate Status, a witness in any Proceeding,
he or she shall be indemnified against all Expenses actually and reasonably
incurred by him or on his behalf in connection therewith.
8. Advancement of Expenses and Other Amounts.
-----------------------------------------
The Corporation shall advance all Expenses, judgments, penalties, fines
and, when eligible hereunder, amounts paid in settlement, incurred by or on
behalf of Indemnitee in connection with any Proceeding within ten (10) days
after the receipt by the Corporation of a statement or statements from
Indemnitee requesting such advance or advances from time to time, whether prior
to or after final disposition of such Proceeding. Such statement or statements
shall reasonably evidence the Expenses, judgments, penalties, fines and amounts
paid in settlement, incurred by Indemnitee and shall include or be preceded or
accompanied by an undertaking by or on behalf of Indemnitee to repay any
Expenses, judgments, penalties, fines and amounts paid in settlement advanced if
it shall ultimately be determined that Indemnitee is not entitled to be
indemnified against such Expenses, judgments, penalties, fines and, when
eligible hereunder, amounts paid in settlement.
9. Procedure for Determination of Entitlement to Indemnification.
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9.1 To obtain indemnification under this Agreement in connection with any
Proceeding, and for the duration thereof, Indemnitee shall submit to the
Corporation a
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written request, including therein or therewith such documentation and
information as is reasonably available to Indemnitee and is reasonably necessary
to determine whether and to what extent Indemnitee is entitled to
indemnification. The Secretary of the Corporation shall, promptly upon receipt
of any such request for indemnification, advise the Board in writing that
Indemnitee has requested indemnification.
9.2 Upon written request by Indemnitee for indemnification pursuant to
Section 9.1 hereof, a determination, if required by applicable law, with respect
to Indemnitee's entitlement thereto shall be made in such case: (i) if a Change
in Control shall have occurred, by Independent Counsel (unless Indemnitee shall
request that such determination be made by the Board or the stockholders, in
which case in the manner provided for in clauses (ii) or (iii) of this Section
9.2) in a written opinion to the Board, a copy of which shall be delivered to
Indemnitee; (ii) if a Change of Control shall not have occurred, (A) by the
Board by a majority vote of a quorum consisting of Disinterested Directors, or
(B) if a quorum of the Board consisting of Disinterested Directors is not
obtainable, by a majority of a committee of the Board consisting of two or more
Disinterested Directors, or (C) by Independent Counsel in a written opinion to
the Board, a copy of which shall be delivered to Indemnitee, or (D) by the
stockholders of the Corporation, by a majority vote of a quorum consisting of
stockholders who are not parties to the proceeding, or if no such quorum is
obtainable, by a majority vote of stockholders who are not parties to such
proceeding; or (iii) as provided in Section 10.2 of this Agreement. If it is so
determined that Indemnitee is entitled to indemnification, payment to Indemnitee
shall be made within ten (10) days after such determination. Indemnitee shall
cooperate with the person, persons or entity making such determination with
respect to Indemnitee's entitlement to indemnification, including providing to
such person, persons or entity upon reasonable advance request any documentation
or information which is not privileged or otherwise protected from disclosure
and which is reasonably available to Indemnitee and reasonably necessary to such
determination. Any costs or expenses (including attorneys' fees and
disbursements) incurred by Indemnitee in so cooperating with the person, persons
or entity making such determination shall be borne by the Corporation
(irrespective of the determination as to Indemnitee's entitlement to
indemnification) and the Corporation hereby indemnifies and agrees to hold
Indemnitee harmless therefrom.
9.3 If a Change of Control shall have occurred, Independent Counsel shall
be selected by Indemnitee (unless Indemnitee shall request that such selection
be made by the Board), and Indemnitee shall give written notice to the
Corporation advising it of the identity of Independent Counsel so selected. In
either event, Indemnitee or the Corporation, as the case may be, may, within
seven days after such written notice of selection shall have been given, deliver
to the Corporation or to Indemnitee, as the case may be, a written objection to
such selection. Such objection may be asserted only on the ground that
Independent Counsel so selected does not meet the requirements of "Independent
Counsel" as defined in Section 1 of this Agreement, and the objection shall set
forth with particularity the factual basis of such assertion. If such written
objection is made, Independent Counsel so selected may not serve as Independent
Counsel unless and until a court has determined that such objection is without
merit. If, within 20 days after submission by Indemnitee of a written request
for indemnification pursuant to Section 9.1
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hereof, no Independent Counsel shall have been selected and not objected to,
either the Corporation or Indemnitee may petition a court of competent
jurisdiction, for resolution of any objection which shall have been made by the
Corporation or Indemnitee to the other's selection of Independent Counsel and/or
for the appointment as Independent Counsel of a person selected by such court or
by such other person as such court shall designate, and the person with respect
to whom an objection is so resolved or the person so appointed shall act as
Independent Counsel under Section 9.2 hereof. The Corporation shall pay any and
all reasonable fees and expenses of Independent Counsel incurred by such
Independent Counsel in connection with its actions pursuant to this Agreement,
and the Corporation shall pay all reasonable fees and expenses incident to the
procedures of this Section 9.3, regardless of the manner in which such
Independent Counsel was selected or appointed. Upon the due commencement date of
any judicial proceeding pursuant to Section 11.1(iii) of this Agreement,
Independent Counsel shall be discharged and relieved of any further
responsibility in such capacity (subject to the applicable standards of
professional conduct then prevailing).
10. Presumptions and Effects of Certain Proceedings.
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10.1 In making a determination with respect to entitlement to
indemnification hereunder, the person or persons or entity making such
determination shall presume that Indemnitee is entitled to indemnification under
this Agreement if Indemnitee has submitted a request for indemnification in
accordance with Section 9.1 of this Agreement, and the Corporation shall have
the burden of proof to overcome that presumption by clear and convincing
evidence in connection with the making by any person, persons or entity of any
determination contrary to that presumption.
10.2 If the person, persons or entity empowered or selected under Section 9
of this Agreement to determine whether Indemnitee is entitled to indemnification
shall not have made a determination within thirty (30) days after receipt by the
Corporation of the request therefor, the requisite determination of entitlement
to indemnification shall be deemed to have been made and Indemnitee shall be
entitled to such indemnification, absent (i) a misstatement by Indemnitee of a
material fact, or an omission of a material fact necessary to make Indemnitee's
statement not materially misleading, in connection with the request for
indemnification, or (ii) prohibition of such indemnification under applicable
law; provided, however, that such 30-day period may be extended for a reasonable
time, not to exceed an additional thirty (30) days, if the person, persons or
entity making the determination with respect to entitlement to indemnification
in good faith require(s) such additional time for the obtaining or evaluating of
documentation and/or information relating thereto; and provided, further,
however, that the foregoing provisions of this Section 10.2 shall not apply (i)
if the determination of entitlement to indemnification is to be made by the
stockholders pursuant to Section 9.2 of this Agreement and if (A) within 15 days
after receipt by the Corporation of the request for such determination the Board
has resolved to submit such determination to the stockholders for their
consideration at an annual meeting thereof to be held within 75 days after such
receipt and such determination is made thereat, or (B) a special meeting of
stockholders is called within 15 days after such receipt for the purpose of
making such determination, such meeting is held for such purpose within 60 days
after having been so
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called and such determination is made thereat, or (ii) if the determination of
entitlement to indemnification is to be made by Independent Counsel pursuant to
Section 9.2 of this Agreement. In connection with each meeting at which a
stockholder determination will be made, the Corporation shall solicit proxies
that expressly include a proposal to indemnify or reimburse the Indemnitee. The
Corporation shall afford the Indemnitee ample opportunity to present evidence of
the facts upon which the Indemnitee relies for indemnification in any
Corporation proxy statement relating to such shareholder determination. Subject
to the fiduciary duties of its members under applicable law, the Board will not
recommend against indemnification or reimbursement in any proxy statement
relating to the proposal to indemnify or reimburse the Indemnitee.
10.3 The termination of any Proceeding or of any claim, issue or matter
therein, by judgment, order, settlement or conviction, or upon a plea of nolo
contendere or its equivalent, shall not (except as otherwise expressly provided
in this Agreement) of itself adversely affect the right of Indemnitee to
indemnification or create a presumption that Indemnitee did not act in good
faith and in a manner which he or she reasonably believed to be in or not
opposed to the best interests of the Corporation or, with respect to any
criminal Proceeding, that Indemnitee had reasonable cause to believe that his or
her conduct was unlawful.
10.4 Reliance as Safe Harbor.
-----------------------
For purposes of this Agreement, the Indemnitee shall be deemed to have
acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the Corporation, or, with respect to any
criminal Proceeding, to have had no reasonable cause to believe his conduct was
unlawful, if his action is based on (i) the records or books of account of the
Corporation, or another enterprise, including financial statements, (ii)
information supplied to him by the officers of the Corporation or another
enterprise in the course of their duties, (iii) the advice of legal counsel for
the Corporation or another enterprise, or of an independent certified public
accountant or an appraiser or other expert selected with reasonable care by the
Corporation or another enterprise. The term "another enterprise" as used in this
Section shall mean any other corporation or any partnership, joint venture,
trust, employee benefit plan or other enterprise of which the Indemnitee is or
was serving at the request of the Corporation as a director, officer, partner,
trustee, employee or agent. The provisions of this Section shall not be deemed
to be exclusive or to limit in any way the other circumstances in which the
Indemnitee may be deemed to have met the applicable standard of conduct set
forth herein.
11. Remedies of Indemnitee.
----------------------
11.1 In the event that (i) a determination is made pursuant to Section 9 of
this Agreement that Indemnitee is not entitled to indemnification under this
Agreement, (ii) advancement of Expenses is not timely made pursuant to Section 8
of this Agreement, (iii) the determination of indemnification is to be made by
Independent Counsel pursuant to Section 9.2 of this Agreement and such
determination shall not have been made and delivered in a written opinion within
60 days after receipt by the Corporation of the request for indemnification,
(iv) payment of indemnification is not made pursuant to
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Section 7 of this Agreement within ten (10) days after receipt by the
Corporation of a written request therefor, or (v) payment of indemnification is
not made within ten (10) days after a determination has been made that
Indemnitee is entitled to indemnification or such determination is deemed to
have been made pursuant to Section 9 or 10 of this Agreement, Indemnitee shall
be entitled to an adjudication in an appropriate court of the State of Florida,
or in any other court of competent jurisdiction, of his or her entitlement to
such indemnification or advancement of Expenses, judgments, penalties, fines or,
when eligible hereunder, amounts paid in settlement. The Corporation shall not
oppose Indemnitee's right to seek any such adjudication.
11.2 In the event that a determination shall have been made pursuant to
Section 9 of this Agreement that Indemnitee is not entitled to indemnification,
any judicial proceeding commenced pursuant to this Section shall be conducted in
all respects as a de novo trial on the merits and Indemnitee shall not be
prejudiced by reason of that adverse determination.
11.3 If a determination shall have been made or deemed to have been made
pursuant to Section 9 or 10 of this Agreement that Indemnitee is entitled to
indemnification, the Corporation shall be bound by such determination in any
judicial proceeding commenced pursuant to this Section, absent (i) a
misstatement by Indemnitee of a material fact, or an omission of a material fact
necessary to make Indemnitee's statement not materially misleading, in
connection with the request for indemnification, or (ii) prohibition of such
indemnification under applicable law.
11.4 The Corporation shall be precluded from asserting in any judicial
proceeding commenced pursuant to this Section that the procedures and
presumptions of this Agreement are not valid, binding and enforceable and shall
stipulate in any such court that the Corporation is bound by all the provisions
of this Agreement.
11.5 In the event that Indemnitee, pursuant to this Section, seeks a
judicial adjudication of his or her rights under, or to recover damages for
breach of, this Agreement, Indemnitee shall be entitled to recover from the
Corporation, and shall be indemnified by the Corporation against, any and all
expenses (of the kinds described in the definition of Expenses) actually and
reasonably incurred by him in such judicial adjudication, but only if he or she
prevails therein. If it shall be determined in such judicial adjudication that
Indemnitee is entitled to receive less than all of the indemnification or
advancement of expenses sought, the expenses incurred by Indemnitee in
connection with such judicial adjudication shall be appropriately prorated.
12. Non-Exclusivity; Survival of Rights; Insurance; Subrogation; Contribution.
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12.1 The rights of indemnification and to receive advancement of Expenses
as provided by this Agreement shall not be deemed exclusive of any other rights
to which Indemnitee may at any time be entitled under applicable law, the
certificate of incorporation or by-laws of the Corporation, any agreement, a
vote of stockholders or a resolution of directors, or otherwise. No amendment,
alteration or repeal of this Agreement or any provision hereof shall be
effective as to any Indemnitee with respect to
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any action taken or omitted by such Indemnitee in his Corporate Status prior to
such amendment, alteration or repeal.
12.2 To the extent that the Corporation maintains an insurance policy or
policies providing liability insurance for directors, officers, employees,
agents or fiduciaries of the Corporation or of any other corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise
which such person serves at the request of the Corporation, Indemnitee shall be
covered by such policy or policies in accordance with its or their terms to the
maximum extent of the coverage available for any such director, officer,
employee, agent or fiduciary under such policy or policies.
12.3 In the event of any payment under this Agreement, the Corporation
shall be subrogated to the extent of such payment to all of the rights of
recovery of Indemnitee, who shall execute all papers required and take all
action necessary to secure such rights, including execution of such documents as
are reasonably necessary to enable the Corporation to bring suit to enforce such
rights.
12.4 The Corporation shall not be liable under this Agreement to make any
payment of amounts otherwise indemnifiable hereunder if and to the extent that
Indemnitee has otherwise actually received such payment under any insurance
policy, contract, agreement or otherwise.
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12.5 (a) If a determination is made that Indemnitee is not entitled to
indemnification, after Indemnitee submits a written request therefor, under this
Agreement, then in respect of any threatened, pending or completed Proceeding in
which the Corporation is jointly liability with the Indemnitee (or would be if
joined in such Proceeding), the Corporation shall contribute to the amount of
Expenses, judgments, fines and amounts paid in settlement by the Indemnitee in
such proportion as is appropriate to reflect (i) the relative benefits received
by the Corporation on the one hand and the Indemnitee on the other hand from the
transaction from which Proceeding arose, and (ii) the relative fault of the
Corporation on the one hand and of the Indemnitee on the other hand in
connection with the events that resulted in such Expenses, judgments, fines or
amounts paid in settlement, as well as any other relevant equitable
considerations. The relative fault of the Corporation on the one hand and of the
Indemnitee on the other hand shall be determined by reference to, among other
things, the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent the circumstances resulting in such Expenses,
judgments, fines or amounts paid in settlement. The Corporation agrees that it
would not be just and equitable if contribution pursuant to this Section were
determined by pro rata allocation or any other method of allocation that does
not take into account the foregoing equitable considerations.
(b) The determination as to the amount of the contribution, if any,
shall be made by:
(i) a court of competent jurisdiction upon the applicable of
both the Indemnitee and the Corporation (if the Proceeding had been brought
in, and final determination had been rendered by such court);
(ii) the Board by a majority vote of a quorum consisting of
Disinterested Directors; or
(iii)Independent Counsel, if a quorum is not obtainable for
purpose of (ii) above, or, even if obtainable, a quorum of Disinterested
Directors so directs.
13. Duration of Agreement.
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This Agreement shall continue until and terminate upon the later of: (a)
ten (10) years after the date that Indemnitee shall have ceased to serve as a
director of the Corporation, or (b) the final termination of all pending
Proceedings in respect of which Indemnitee is granted rights of indemnification
or advancement of Expenses, judgments, penalties, fines or amounts paid in
settlement hereunder and or any proceeding commenced by Indemnitee pursuant to
Section 11 of this Agreement. This Agreement shall be binding upon the
Corporation and its successors and assigns and shall inure to the benefit of
Indemnitee and his spouse, heirs, executors, personal representatives and
administrators.
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14. Severability.
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If any provision or provisions of this Agreement shall be held to be
invalid, illegal or unenforceable for any reason whatsoever: (a) the validity,
legality and enforceability of the remaining provisions of this Agreement
(including, without limitation, each portion of any Section of this Agreement
containing any such provision held to be invalid, illegal or unenforceable, that
is not itself invalid, illegal or unenforceable) shall not in any way be
affected or impaired thereby; and (b) to the fullest extent possible, the
provisions of this Agreement (including, without limitation, each portion of any
Section of this Agreement containing any such provision held to be invalid,
illegal or unenforceable, that is not itself invalid, illegal or unenforceable)
shall be construed so as to give effect to the intent manifested by the
provision held invalid, illegal or unenforceable.
15. Entire Agreement.
----------------
This Agreement constitutes the entire agreement between the Corporation and
the Indemnitee with respect to the subject matter hereof and supercedes all
prior agreements, understanding, negotiations and discussion, both written and
oral, between the parties hereto with respect to such subject matter (the "Prior
Agreements"); provided, however, that if this Agreement shall ever be held void
or unenforceable for any reasons whatsoever, and is not reformed pursuant to
Section 14 hereof, then (i) this Agreement shall not be deemed to have
superceded any Prior Agreements; (ii) all of such Prior Agreements shall be
deemed to be in full force and effect notwithstanding the execution of this
Agreement; and (iii) the Indemnitee shall be entitled to maximum indemnification
benefits provided under any Prior Agreements, as well as those provided under
applicable law, the certificate of incorporation or by-laws of the Corporation,
a vote of stockholders or resolution of directors.
16. Exception to Right of Indemnification or Advancement of Expenses.
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Except as provided in Section 11.5, Indemnitee shall not be entitled to
indemnification or advancement of Expenses under this Agreement with respect to
any Proceeding, or any claim therein, brought or made by him against the
Corporation.
17. Covenant Not to Sue; Limitation of Actions; Release of Claims.
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No legal action shall be brought and no cause of action shall be asserted
by or on behalf of the Corporation (or any of its subsidiaries) against the
Indemnitee, his spouse, heirs, executors, personal representatives or
administrators after the expiration of two (2) years from the date of accrual of
such cause of action and any claim or cause of action of the Corporation (or any
of its subsidiaries) shall be extinguished and deemed released unless asserted
by the filing of a legal action within such two (2) year period; provided,
however, that if any shorter period of limitation is otherwise applicable to any
such cause of action, such shorter period shall govern.
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18. Identical Counterparts.
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This Agreement may be executed in one or more counterparts, each of which
shall for all purposes be deemed to be an original but all of which together
shall constitute one and the same Agreement.
19. Headings.
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The headings of the paragraphs of this Agreement are inserted for
convenience only and shall not be deemed to constitute part of this Agreement or
to affect the construction thereof.
20. Modification and Waiver.
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No supplement, modification or amendment of this Agreement shall be binding
unless executed in writing by both of the parties hereto. No waiver of any of
the provisions of this Agreement shall be deemed or shall constitute a waiver of
any other provisions hereof (whether or not similar) nor shall such waiver
constitute a continuing waiver.
21. Notice by Indemnitee.
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Indemnitee agrees promptly to notify the Corporation in writing upon being
served with any summons, citation, subpoena, complaint, indictment, information
or other document relating any Proceeding or matter which may be subject to
indemnification or advancement of Expenses, judgments, penalties, fines or
amounts paid in settlement covered hereunder.
22. Notices.
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All notices, requests, demands and other communications hereunder shall be
in writing and shall be deemed to have been duly given if (i) delivered by hand
and receipted for by the party to whom such notice or other communication shall
have been directed, or (ii) mailed by certified or registered mail with postage
prepaid, on the third business day after the date on which it is so mailed:
If to Indemnitee, to:
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If to the Corporation, to:
ParkerVision, Inc.
8493 Baymeadows Way
Jacksonville, Florida 32256
Attention: Corporate Secretary
or to such other address or such other person as Indemnitee or the Corporation
shall designate in writing in accordance with this Section, except that notices
regarding changes in notices shall be effective only upon receipt.
23. Governing Law.
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The parties agree that this Agreement shall be governed by, and construed
and enforced in accordance with, the laws of the State of Florida applicable to
contracts made and performed in that state without giving effect to the
principles of conflicts of laws.
24. Miscellaneous.
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Use of the masculine pronoun shall be deemed to include usage of the
feminine pronoun where appropriate.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
day and year first above written.
PARKERVISION, INC.
By:
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Jeffrey L. Parker
Chief Executive Officer
INDEMNITEE
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The preceding form has been executed by the following directors and officers:
Jeffrey L. Parker
Richard L. Sisisky
David F. Sorrells
Stacie Wilf
William A. Hightower
Richard A. Kashnow
Amy L. Newmark
Todd Parker
William L. Sammons
Oscar S. Schafer
Robert G. Sterne
Cynthia L. Poehlman
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