EMPLOYMENT AGREEMENT
This AGREEMENT is effective as of the second day of September 2003, by and
between William A. Hightower (the "Employee") and ParkerVision, Inc., a Florida
corporation (the "Corporation").
In consideration of the mutual covenants herein contained, and in consideration
of the employment of Employee by the Corporation, the parties agree as follows:
1. Duties and Scope of Employment
(a) POSITION. The Corporation agrees to employ the Employee in the
position of President. Employee shall report directly to the Chairman
of the Board and Chief Executive Officer of the Corporation ("CEO").
All of Employee's powers and authority in any capacity shall at all
times be subject to the direction and control of the CEO and the
Corporation's Board of Directors.
(b) OBLIGATIONS. During his employment under this Agreement, the Employee
shall devote his full business efforts and time to the Corporation.
The foregoing, however, shall not preclude the Employee from engaging
in appropriate civic, charitable or religious activities or from
devoting a reasonable amount of time to private investments or from
serving on the boards of directors of other entities, as long as such
activities and service do not interfere or conflict with his
responsibilities to the Corporation.
2. BASE COMPENSATION. During his employment under this Agreement, the
Corporation agrees to pay the Employee as compensation for his services a
base salary at the annual rate of $250,000, or at such higher rate as the
Corporation's Board of Directors may determine from time to time, along
with such performance incentive amounts, if any, as the Board shall
authorize, in its discretion, from time to time. Such salary shall be
payable in approximately equal bi-weekly installments. (The annual
compensation specified in this Section 2, together with any increases in
such compensation that the Board of Directors may grant from time to time,
is referred to in this Agreement as "Base Compensation".)
3. EMPLOYEE BENEFITS.
(a) GENERAL. During his employment under this Agreement, the Employee
shall be eligible to participate in any employee benefit plans and
executive compensation programs which may be maintained by the
Corporation, including (without limitation) pension plans, savings or
profit-sharing plans, deferred compensation plans, supplemental
retirement or excess-benefit plans, stock option, incentive or other
bonus plans, life, disability, health, accident and other insurance
programs,
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paid vacations, and similar plans or programs, subject in each case to
the generally applicable terms and conditions of the plan or program
in question and to the determination of any committee administering
such plan or program.
(b) STOCK OPTIONS. The Corporation shall grant to the Employee options to
purchase 500,000 shares of the Common Stock of the Corporation at the
closing price on the date hereof. The terms of the options shall be
governed by the Corporation's Stock Option Agreement executed
simultaneously herewith.
4. BUSINESS EXPENSE AND TRAVEL. During his employment under this Agreement,
the Employee shall be authorized to incur necessary and reasonable travel,
entertainment and other business expenses in connection with his duties
hereunder. The Corporation shall reimburse the Employee for such expenses
upon presentation of an itemized account and appropriate supporting
documentation, all in accordance with the Corporation's generally
applicable policies.
5. TERM OF EMPLOYMENT
(a) TERM. The term of Employee's employment hereunder shall be through
September 2, 2008, subject to earlier termination as provided herein.
(b) TERMINATION BY THE CORPORATION. The Corporation may terminate
Employee's employment at any time, for any reason whatsoever, by
giving the Employee thirty (30) day's advance notice in writing. The
Corporation has the option of providing pay in lieu of such notice at
the rate of Employee's Base Compensation.
(i) TERMINATION WITHOUT CAUSE. If the Corporation terminates
Employee's employment without cause, the provisions of Section
6(a) shall apply.
(ii) TERMINATION UPON DISABILITY. If the Corporation terminates the
Employee's employment for Disability, the provisions of Section
6(a) shall apply. For all purposes under this Agreement,
"Disability" shall mean that the Employee, at the time notice is
given, has been unable to perform the essential functions of his
position under this Agreement for a period of not less than six
(6) consecutive months as a result of his incapacity due to
physical or mental illness. In the event that the Employee
resumes the performance of substantially all of his duties
hereunder before the termination of his employment under this
subsection(ii) becomes effective, the notice of termination
shall automatically be deemed to have been revoked.
(iii) TERMINATION WITHIN TWELVE (12) MONTHS OF A CHANGE OF CONTROL. If
the Corporation terminates Employee's employment within twelve
(12) months after a Change in Control, whether such termination
is with or without Cause, is due to Employee's death or
Disability or constitutes a
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Constructive Termination (as defined in Section 5(c) below), the
provisions of Sections 6(a) shall apply. For all purposes under
this Agreement, "Change in Control" shall mean the occurrence of
any of the following events:
1) Any "person" (as such term is used in Sections 13(d) and
14(d) of the Securities Exchange Act of 1934, as amended),
is or becomes the "beneficial owner" (as defined in Rule
13d-3 under said Act), directly or indirectly, of
securities of the Corporation representing fifty percent
(50%) or more of the total voting power represented by the
Corporation's then outstanding voting securities except
that separately or in the aggregate the total voting power
of Jeffrey L. Parker, Stacie P. Wilf, and Todd D. Parker
being fifty percent (50%) or more of the total voting power
of the then outstanding voting securities shall not be
considered a Change of Control, or except pursuant to a
negotiated agreement with the Corporation and pursuant to
which such securities are purchased from the Corporation;
or
2) The shareholders of the Corporation approve a merger or
consolidation of the Corporation with any other
corporation, other than a merger or consolidation which
would result in the voting securities of the Corporation
outstanding immediately prior thereto continuing to
represent (either by remaining outstanding or by being
converted into voting securities of the surviving entity)
at least fifty percent (50%) of the total voting power
represented by the voting securities of the Corporation or
such surviving entity outstanding immediately after such
merger or consolidation.
Any other provision of this Section notwithstanding, the term
"Change in Control" shall not include either of the following
events undertaken at the election of the Corporation:
(1) Any transaction, the sole purpose of which is to
change the state of the Corporation's incorporation;
(2) A transaction, the result of which is to sell all or
substantially all of the assets of the Corporation to
another corporation (the "surviving corporation");
provided that the surviving corporation is owned
directly or indirectly by the shareholders of the
Corporation immediately following such transaction in
substantially the same proportions as their ownership
of the Corporation's common stock immediately
preceding such transaction; and provided, further,
that the surviving corporation expressly assumes this
Agreement.
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(iv) DEATH. Upon the event of the Employee's death, Employee's
employment with the Corporation shall be considered
automatically terminated and the provisions of Section 6(a)
shall apply.
(v) TERMINATION FOR CAUSE. Except as set forth in Section 5(b)(iii),
if the Corporation terminates Employee's employment for Cause,
the provisions of Section 6(b) shall apply. For all purposes
under this Agreement, "Cause" shall mean (i) a failure by the
Employee to substantially perform his duties hereunder (other
than a failure resulting from the Employee's complete or partial
incapacity due to physical or mental illness or impairment)
after there has been delivered to Employee a written demand for
performance from the Corporation which describes the basis for
the Corporation's belief that Employee has not substantially
performed his duties and sets forth specific performance goals
to cure such defaults; provided that upon any determination by
the Corporation that Employee has failed to perform his duties,
Employee shall have 30 days in which to cure such failure to
perform his duties, (ii) a willful act by the Employee which
constitutes misconduct connected with work within the meaning of
Florida's unemployment compensation law, (iii) a breach by the
Employee of a material provision of this Agreement, or (iv) a
violation of a federal, state or local law or regulation other
than a minor traffic offense.
(c) VOLUNTARY TERMINATION BY THE EMPLOYEE. The Employee may terminate his
employment by giving the Corporation thirty (30) days' advance notice
in writing. If the Employee terminates his employment under the
preceding sentence other than as a result of a Constructive
Termination, the provisions of Section 6(c) shall apply. If the
Employee terminates his employment pursuant to this Section 5(c) as a
result of a Constructive Termination, the provisions of Section 6(a)
shall apply. For all purposes under this Agreement, "Constructive
Termination": shall mean a material reduction in salary or benefits,
or a requirement to relocate the Employee's primary residence, except
for office relocations that would not increase the Employee's one-way
commute distance by more than 25 miles.
(d) WAIVER OF NOTICE. Any waiver of notice shall be valid only if it is
made in writing and expressly refers to the applicable notice
requirement in this Section 5.
6. PAYMENTS UPON TERMINATION OF EMPLOYMENT.
(a) PAYMENTS UPON TERMINATION PURSUANT TO SECTION 5(B)(I)-(IV) AND
CONSTRUCTIVE TERMINATION. If during the term of this Agreement, the
Employee's employment is terminated pursuant to any of the reasons set
forth in Section 5(b)(i) - (iv), or voluntarily by the Employee under
Section 5(c) as a result of a Constructive Termination, the Employee
shall be entitled to receive a severance payment from the Corporation
(the "Severance Payment") in
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(i) an amount equal to one hundred percent (100%) of the Employee's
annual Base Compensation in effect on the date of employment
termination; plus
(ii) the greater of an amount equal to one hundred percent (100%) of
the aggregate incentive or bonus, if any, payable to the
employee for the immediately preceding 12 month period or an
amount equal to one hundred percent (100%) of the aggregate
incentive or bonus, if any, paid to the employee for the
immediately preceding fiscal year.
The Employee agrees to allow the Corporation at its option and
at the Corporation's expense to secure Life Insurance and/or
Disability Insurance covering the event of the Employee's death
or disability during the term of his employment. To the extent
insurance is paid to the employee or his heirs in the event of
disability or death the Severance Payment due from the
Corporation will be reduced by the amount of insurance paid. The
Severance Payment shall be made in a lump sum within thirty (30)
days following the date of the employment termination or in the
situation of Life or Disability Insurance payment shall be made
within the timeframe representing the normal practices of the
insurance carrier. The Severance Payment shall be in lieu of any
further payments to the Employee under Section 2 and any further
accrual of benefits under Section 3 with respect to periods
subsequent to the date of the employment termination. The
Severance Payment shall not reduce or offset any benefits the
Employee may be entitled to under the specific terms of the
benefit plans of the Corporation.
The Employee shall not be required to mitigate the amount of any
payment contemplated by this Section 6(a) (whether by seeking
new employment or in any other manner), nor shall any such
payment be reduced by any earnings that the Employee may receive
from any other source.
(b) TERMINATION FOR CAUSE. If the Employee's employment is terminated for
Cause pursuant to Sections 5(b) (v), except as otherwise set forth in
Section 5(b)(iii), no compensation or payments will be paid or
provided to the Employee for the periods following the date when such
a termination of employment is effective. Notwithstanding the
preceding sentence, nothing herein shall be interpreted to reduce or
offset any benefits the Employee may be entitled to under the terms of
the benefit plans of the Corporation.
(c) PAYMENTS UPON VOLUNTARY TERMINATION. In the event that, during the
term of this Agreement, the Employee's employment is terminated
pursuant to Section 5(c) other than as a result of a Constructive
Termination, no compensation or payments will be paid or provided to
the Employee for the periods following the date when such a
termination of employment is effective. Notwithstanding
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the preceding sentence, nothing herein shall be interpreted to reduce
or offset any benefits the Employee may be entitled to under the terms
of the benefit plans of the Corporation.
(d) LIMITATION ON PAYMENTS.
(i) In the event that the severance and other benefits provided for
in this Agreement or otherwise payable to the Employee (i)
constitute "parachute payments" within the meaning of Section
280G of the Internal Revenue Code of 1986, as amended (the
"Code") and (ii) but for this Section would be subject to the
excise tax imposed by Section 4999 of the Code, then the
Employee's severance benefits under Section 6 shall be payable
either (i) in full, or (ii) as to such lesser amount which would
result in no portion of such severance benefits being subject to
excise tax under Section 4999 of the Code, whichever of the
foregoing amounts, taking into account the applicable federal,
state and local income taxes and the excise tax imposed by
Section 4999, results in the receipt by the Employee on an
after-tax basis, of the greatest amount of severance benefits
under this Agreement, notwithstanding that all or some portion
of such severance benefits may be taxable under Section 4999 of
the Code.
(ii) If a reduction in the payments and benefits that would otherwise
be paid or provided to the Employee under the terms of this
Agreement is necessary to comply with the provisions of Section
6(e)(i), the Employee shall be entitled to select which payments
or benefits will be reduced and the manner and method of any
such reduction of such payments or benefits (including but not
limited to the number of options that would vest under Section
6(b) subject to reasonable limitations (including for example,
express provisions under the Corporation's benefit plans) so
long as the requirements of Section 6(e)(i) are met). Within
thirty (30) days after the amount of any required reduction in
payments and benefits is finally determined in accordance with
the provisions of Section 6(e)(iii), the Employee shall notify
the Corporation in writing regarding which payments or benefits
are to be reduced. If the Employee gives no notification, the
Corporation will determine which amounts to reduce. If, as a
result of any reduction required by Section 6(e)(i), amounts
previously paid to the Employee exceed the amount to which the
Employee is entitled, the Employee will promptly return the
excess amount to the Corporation.
(iii) Unless the Corporation and the Employee otherwise agree in
writing, any determination required under this Section shall be
made in writing by the Corporation's independent public
accountants (the "Accountants"), whose determination shall be
conclusive and binding upon the Employee and the Corporation for
all purposes. For purposes of making the calculations required
by this Section, the Accountants may make reasonable assumptions
and approximations concerning applicable taxes and may rely on
reasonable,
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good faith interpretations concerning the application of
Sections 280G and 4999 of the Code. The Corporation and the
Employee shall furnish to the Accountants such information and
documents as the Accountants may reasonably request in order to
make a determination under this Section. The Corporation shall
bear all costs the Accountants may reasonably incur in
connection with any calculations contemplated by this Section.
7. EMPLOYEE'S SUCCESSORS. This Agreement and all rights of the Employee
hereunder shall continue to benefit, and be enforceable by, the Employee's
personal or legal representatives, executors, administrators, successors,
heirs, distributes, devises and legatees.
8. NOTICE. Notices and all other communications contemplated by this Agreement
shall be in writing and 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 the Employee,
mailed notices shall be addressed to him at the home address which he most
recently communicated to the Corporation in writing or his office address.
In the case of the Corporation, mailed notices shall be addressed to its
corporate headquarters, and all notices shall be directed to the attention
of its Secretary.
9. MISCELLANEOUS PROVISIONS.
(a) WAIVER. No provision of this Agreement shall be modified, waived or
discharged unless the modification, waiver or discharge is agreed to
in writing and signed by the Employee and by an authorized officer of
the Corporation (other than the Employee). No waiver by either party
of any breach of, or of compliance with, any condition or provision of
this Agreement by the other party shall be considered a waiver of any
other condition or provision or of the same condition or provision at
another time.
(b) WHOLE AGREEMENT. No agreements, representations or understandings
(whether oral or written and whether express or implied) which are not
expressly set forth in this Agreement have been made or entered into
by either party with respect to employment matters, except for
contractual limitations on the Employee set forth in separate
agreements containing restrictive covenants which (i) limit the
Employee's ability to compete with the Corporation and (ii) protect
the Corporation's confidential proprietary information, as set forth
in such separate agreements.
(c) CHOICE OF LAW. The laws of the State of Florida shall govern the
validity, interpretation, construction and performance of this
Agreement.
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(d) SEVERABILITY. The invalidity or unenforceability of any provision or
provisions of this Agreement shall not affect the validity or
enforceability of any other provision hereof, which shall remain in
full force and effect.
(e) ARBITRATION. Any dispute or controversy arising under or in connection
with this Agreement shall be settled exclusively by arbitration in
Jacksonville, Florida in accordance with the rules of the American
Arbitration Association then in effect. Judgment may be entered on the
arbitrator's award in any court having jurisdiction. Punitive damages
shall not be awarded. Nothing in this section shall be construed,
however, to limit the Corporation's rights, remedies and ability to
enforce in a court of competent jurisdiction its rights under the
aforementioned restrictive covenants.
(f) NO ASSIGNMENT OF BENEFITS. The rights of any person to payments or
benefits under this Agreement shall not be made subject to option or
assignment, either by voluntary or involuntary assignment or by
operation of law, including (without limitation) bankruptcy,
garnishment, attachment or other creditor'' process, and any action in
violation of this subsection (f) shall be void.
(g) EMPLOYMENT AT WILL: Limitation of Remedies. The Corporation and the
Employee acknowledge that the Employee's employment is at will, as
defined under applicable law. If the Employee's employment terminates
for any reason, the Employee shall not be entitled to any payments,
benefits, damages, awards or compensation other than as provided by
this Agreement.
(h) EMPLOYMENT TAXES. All payments made pursuant to this Agreement will be
subject to withholding of applicable taxes.
(i) ASSIGNMENT OF AGREEMENT BY CORPORATION. The Corporation may assign its
rights under this Agreement to an affiliate, and an affiliate may
assign its rights under this Agreement to another affiliate of the
Corporation or to the Corporation. In the case of any such assignment,
the term "Corporation" when used in a section of this Agreement shall
mean the corporation that actually employs the Employee.
(j) COUNTERPARTS. This Agreement may be executed in counterparts, each of
which shall be deemed an original, but all of which together will
constitute one and the same instrument.
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IN WITNESS WHEREOF, each of the parties has executed this Agreement, in the case
of the Corporation by its duly authorized officer, as of the day and year first
above written.
PARKERVISION, INC.
By: _________________________________________
TITLE: ______________________________________
_____________________________________________
William A. Hightower
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