Exhibit 10.6
VOTING AGREEMENT
This VOTING AGREEMENT (this "Agreement") is entered into as of February
25, 2004, by and among Thomson Broadcast & Media Solutions, Inc., a Delaware
corporation ("Lead Purchaser") and Thomson Licensing, S.A., a French corporation
("Patent Purchaser" and collectively with Lead Purchaser, the "Purchasers", and
each individually, a "Purchaser") and Jeffrey Parker, J-Parker Family Limited
Partnership, Eric Parker, Sari Parker, Joshua Parker, Todd Parker, T-Parker
Family Limited Partnership, Juanita Jean Parker (Todd Parker's spouse), Stacie
Wilf, S-Parker Wilf Family Limited Partnership, Parker Wilf, David Wilf, Barbara
Parker and William Sammons (each a "Shareholder" and together, the
"Shareholders"), and solely for purposes of Article V hereof, Deborah Parker
(Jeffrey Parker's spouse), Larry Wilf (Stacie Wilf's spouse) and Chris Sammons
(William Sammons' spouse) (each of the persons in this preamble who are
parenthetically described as a Shareholder's spouse shall be referred to herein
as a "Spouse").
WHEREAS, as of the date hereof, each of the Shareholders owns
beneficially of record or has the power to vote, or direct the vote of, the
number of shares of common stock, par value $0.01 per share ("Company Common
Stock"), of ParkerVision, Inc. a Florida corporation (the "Company") as set
forth opposite such Shareholder's name on Exhibit A hereto (all such Company
Common Stock and any shares of Company Common Stock of which ownership of record
or the power to vote is hereafter acquired by the Shareholders prior to the
termination of this Agreement being referred to herein as the "Shares");
WHEREAS, Purchasers and the Company propose to enter into an Asset
Purchase Agreement, dated as of even date herewith (as the same may be amended
from time to time, the "Asset Purchase Agreement"; capitalized terms used but
not defined in this Agreement shall have the meanings ascribed to them in the
Asset Purchase Agreement), which provides, upon the terms and subject to the
conditions thereof, for the sale of the Company's video division and related
assets and business to Purchasers (the "Acquisition"); and
WHEREAS, as a condition to the willingness of Purchasers to enter into
the Asset Purchase Agreement, Purchasers have requested that the Shareholders
agree, and, in order to induce Purchasers to enter into the Asset Purchase
Agreement, the Shareholders have agreed, severally, to enter into this
Agreement;
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements and covenants set forth herein and in the Asset Purchase Agreement,
and intending to be legally bound hereby, the parties hereto hereby agree as
follows:
ARTICLE I
TRANSFER AND VOTING OF SHARES
SECTION 1.01 Transfer of Shares. No Shareholder shall, directly or
indirectly, (a) sell, pledge or otherwise dispose of any or all of such
Shareholder's Shares, (b) deposit any Shares into a voting trust or enter into a
voting agreement or arrangement with respect to any Shares or grant any proxy
with respect thereto (other than as contemplated hereunder), or (c) enter into
any contract, option or other arrangement or undertaking (other than the Asset
Purchase Agreement) with respect to the direct or indirect acquisition or sale,
assignment, transfer or other disposition of any Shares.
SECTION 1.02 Vote in Favor of Acquisition. During the period commencing
on the date hereof and terminating at the earlier of the Closing and such time
as the Asset Purchase Agreement is terminated pursuant to Section 10.1 thereof,
each Shareholder, solely in such Shareholder's capacity as a Shareholder of the
Company, agrees to vote (or cause to be voted) all Shares currently beneficially
owned by such Shareholder, and all Shares which such Shareholder acquires in the
future, at any meeting of the Shareholders of the Company, and in any action by
written consent of the Shareholders of the Company, (i) in favor of the adoption
of the Asset Purchase Agreement and approval of the Acquisition and the other
transactions contemplated by the Asset Purchase Agreement, (ii) against any
merger, consolidation, sale of assets, recapitalization or other business
combination involving the Company (other than the Acquisition) or any other
action or agreement that would result in a breach of any covenant,
representation or warranty or any other obligation or agreement of the Company
under the Asset Purchase Agreement or that would result in any of the conditions
to the Company's obligations under the Asset Purchase Agreement not being
fulfilled, and (iii) in favor of any other matter relating to consummation of
the transactions contemplated by the Asset Purchase Agreement.
SECTION 1.03 Grant of Proxy; Further Assurances. (a) Each Shareholder,
by this Agreement, with respect to the Shares set out in Exhibit A hereto and
any Shares hereinafter acquired by such Shareholder, does hereby irrevocably
constitute and appoint each Purchaser, acting individually or jointly, or any
nominee of such Purchaser, with full power of substitution, as his or its true
and lawful attorney and proxy, for and in his or its name, place and stead, to
vote each of such Shares as such Shareholder's proxy, at every annual, special
or adjourned meeting of the Shareholders of the Company (including the right to
sign his or its name (as Shareholder) to any consent, certificate or other
document relating to the Company that may be permitted or required by applicable
law) (i) in favor of the adoption of the Asset Purchase Agreement and approval
of the Acquisition and the other transactions contemplated by the Asset Purchase
Agreement, (ii) against any merger, consolidation, sale of assets,
recapitalization or other business combination involving the Company (other than
the Acquisition) or any other action or agreement that would result in a breach
of any covenant, representation or warranty or any other obligation or agreement
of the Company under the Asset Purchase Agreement or that would result in any of
the conditions to the Company's obligations under the Asset Purchase Agreement
not being fulfilled, and (iii) in favor of any other matter relating to
consummation of the transactions contemplated by the Asset Purchase Agreement.
Each Shareholder acknowledges receipt and review of a copy of the Asset Purchase
Agreement.
(b) Each Shareholder shall perform such further acts and execute
such further documents and instruments as may reasonably be required to vest in
Purchasers the power to carry out the provisions of this Agreement.
SECTION 1.04 Termination. The obligations of the Shareholders pursuant
to this Article I (including the grant of the proxy in Section 1.03) shall
terminate upon the earlier of (i) the Closing and (ii) the date of the
termination of the Asset Purchase Agreement pursuant to Section 10.1 thereof.
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SECTION 1.05 Obligations as Director and/or Officer. If any Shareholder
is a member of the board of directors of Company (a "Director") or an officer of
Company (an "Officer"), nothing in this Agreement shall be deemed to limit or
restrict the Director or Officer in acting in his or her capacity as a Director
or Officer of Company, as the case may be, and exercising his or her fiduciary
duties and responsibilities, it being agreed and understood that this Agreement
shall apply to Shareholder solely in his or her capacity as a shareholder of
Company and shall not apply to his actions, judgments or decisions as a Director
or Officer of Company.
ARTICLE II
REPRESENTATIONS AND WARRANTIES;
COVENANTS OF THE SHAREHOLDERS
Each Shareholder hereby severally represents warrants and covenants to
Purchasers as follows:
SECTION 2.01 Authorization. Such Shareholder has full legal capacity
and authority to enter into this Agreement and to carry out such person's
obligations hereunder. This Agreement has been duly executed and delivered by
such Shareholder, and (assuming due authorization, execution and delivery by
Purchasers and the other Shareholders) this Agreement constitutes a legal, valid
and binding obligation of such Shareholder, enforceable against such Shareholder
in accordance with its terms.
SECTION 2.02 No Conflict; Required Filings and Consents.
(a) The execution and delivery of this Agreement by such
Shareholder do not, and the performance of this Agreement by such Shareholder
will not, (i) conflict with or violate any Legal Requirement applicable to such
Shareholder or by which any property or asset of such Shareholder is bound or
affected, or (ii) result in any breach of or constitute a default (or an event
which with notice or lapse of time or both would become a default) under, or
give to others any right of termination, amendment, acceleration or cancellation
of, or result in the creation of any Encumbrance on any property or asset of
such Shareholder, including, without limitation, the Shares, pursuant to, any
note, bond, mortgage, indenture, contract, agreement, lease, license, permit,
franchise or other instrument or obligation. There is no beneficiary or holder
of a voting trust certificate or other interest of any trust of which such
Shareholder is a trustee whose consent is required for the execution and
delivery of this Agreement or the consummation by such Shareholder of the
transactions contemplated by this Agreement.
(b) The execution and delivery of this Agreement by such
Shareholder does not, and the performance of this Agreement by such Shareholder
will not, require any consent, approval, authorization or permit of, or filing
with or notification to, any governmental or regulatory authority, domestic or
foreign, except (i) for applicable requirements, if any, of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and (ii) where the
failure to obtain such consents, approvals, authorizations or permits, or to
make such filings or notifications, would not prevent or materially delay the
performance by such Shareholder of such Shareholder's obligations under this
Agreement. Except pursuant to this Agreement, such Shareholder does not have any
understanding with a third party in effect with respect to the voting of any
Shares.
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SECTION 2.03 Litigation. There is no private or governmental action,
suit, proceeding, claim, arbitration or investigation pending before any agency,
court or tribunal, foreign or domestic, or, to the knowledge of such Shareholder
or any of such Shareholder's affiliates, threatened against such Shareholder or
any of such Shareholder's affiliates or any of their respective properties or
any of their respective officers or directors, in the case of a corporate entity
(in their capacities as such) that, individually or in the aggregate, would
reasonably be expected to materially delay or impair such Shareholder's ability
to consummate the transactions contemplated by this Agreement. There is no
judgment, decree or order against such Shareholder or any of such Shareholder's
affiliates, or, to the knowledge of such Shareholder of any of such
Shareholder's affiliates, any of their respective directors or officers, in the
case of a corporate entity (in their capacities as such), that would prevent,
enjoin, alter or materially delay any of the transactions contemplated by this
Agreement, or that would reasonably be expected to have a material adverse
effect on such Shareholder's ability to consummate the transactions contemplated
by this Agreement.
SECTION 2.04 Title to Shares. Such Shareholder is the legal and
beneficial owner of its Shares free and clear of all Encumbrances, except
restrictions on each Shareholder's ability to transfer the Shares under state
and federal securities laws. Except for this Agreement, there are no voting
trusts, shareholder agreements, proxies or other agreements or understandings in
effect with respect to the voting or transfer of such Shares. Such Shares are
all the securities of the Company owned of record or beneficially by such
Shareholder on the date of this Agreement, other than Shares deemed owned under
options.
ARTICLE III
REPRESENTATIONS AND WARRANTIES;
COVENANTS OF PURCHASERS
Purchasers hereby jointly and severally represent, warrant and covenant
to the Shareholders as follows:
SECTION 3.01 Organization; Authorization. Each Purchaser is a
corporation duly incorporated, validly existing and in good standing under the
laws of the jurisdiction of its incorporation (or, in the case of Patent
Purchaser, has equivalent status under the laws of France) and has all requisite
corporate power and authority to own, lease and operate its properties and to
carry on its business as it is now being conducted. Each Purchaser has all
necessary corporate power and authority to execute and deliver this Agreement
and to perform its obligations hereunder and to consummate the transactions
contemplated by this Agreement. The execution and delivery of this Agreement by
each Purchaser and the consummation by each Purchaser of the transactions
contemplated by this Agreement has been duly and validly authorized by all
necessary corporate action and no other corporate proceedings on the part of
either Purchaser will be necessary to authorize this Agreement and the other
transactions contemplated by this Agreement. This Agreement has been duly and
validly executed and delivered by each Purchaser and, assuming the due
authorization, execution and delivery by the Shareholders, constitutes a legal,
valid and binding obligation of each Purchaser, enforceable against such
Purchaser in accordance with its terms.
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SECTION 3.02 No Conflict; Required Filings and Consents.
(a) The execution and delivery of this Agreement by each Purchaser
and the performance of this Agreement by such Purchaser do not, and the
performance of this Agreement by each Purchaser will not, (i) conflict with or
violate the Certificate of Incorporation or By-laws (or in the case of Patent
Purchaser, any equivalent charter documents) of either Purchaser, or (ii)
conflict with or violate any Legal Requirement applicable to either Purchaser or
by which such Purchaser or any property or asset of such Purchaser is bound or
affected.
(b) The execution and delivery of this Agreement by each Purchaser
and the performance of this Agreement by each Purchaser will not, require any
consent, approval, authorization or permit of, or filing with or notification
to, any Governmental Authority, except (i) for applicable requirements, if any,
of the Exchange Act and state securities laws, and (ii) where the failure to
obtain such consents, approvals, authorizations or permits, or to make such
filings or notifications, would not reasonably be expected to prevent or
materially delay the consummation of the transactions contemplated by this
Agreement.
ARTICLE IV
GENERAL PROVISIONS
SECTION 4.01 Notices. All notices and other communications given or
made pursuant hereto shall be in writing and shall be given (and shall be deemed
to have been duly given upon receipt) by delivery in person, by overnight
courier service, by telecopy, or by registered or certified mail (postage
prepaid, return receipt requested) to the respective parties at the following
addresses (or at such other addresses as shall be specified by notice given in
accordance with this Section 4.01):
(a) if to Purchasers:
Thomson Broadcast & Media Solutions, Inc.
3233 E. Mission Oaks Boulevard
Camarillo, CA 93012
Fax:+805-445-1964
Attention: General Counsel
with a mandatory copy to:
Morrison & Foerster LLP
Attention: Robert Townsend, Esq.
425 Market Street
San Francisco, CA 94105
Facsimile: (415) 268-7522
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and
Thomson Licensing, S.A.
46, Quai Alphonse LeGallo
92100 Boulogne-Billancourt
France
Facsimile: +33 1 4186 5638
Attention: Vice President - Licensing and
Intellectual Property
with a mandatory copy to:
Morrison & Foerster LLP
Attention: Robert Townsend, Esq.
425 Market Street
San Francisco, CA 94105
Facsimile: (415) 268-7522
(b) if to a Shareholder:
to that Shareholder's address as set forth on the
signature page hereof
with a mandatory copy to:
Graubard Miller
attn: David Miller
600 Third Avenue
New York, NY 10016
Facsimile: (212) 818-8881
(c) if to a Spouse:
to that Spouse's address as set forth on the signature
page hereof
with a mandatory copy to:
Graubard Miller
attn: David Miller
600 Third Avenue
New York, NY 10016
Facsimile: (212) 818-8881
SECTION 4.02 Headings. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
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SECTION 4.03 Severability. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any rule of law
or public policy, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic or legal
substance of the transactions contemplated hereby is not affected in any manner
materially adverse to any party. Upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the parties hereto
shall negotiate in good faith to modify this Agreement so as to effect the
original intent of the parties as closely as possible to the fullest extent
permitted by applicable law in an acceptable manner to the end that the
transactions contemplated hereby are fulfilled to the extent possible.
SECTION 4.04 Entire Agreement. This Agreement constitutes the entire
agreement of the parties and supersedes all prior agreements and undertakings,
both written and oral, between the parties, or any of them, with respect to the
subject matter hereof. This Agreement may not be amended or modified except in
an instrument in writing signed by, or on behalf of, the parties hereto.
SECTION 4.05 Assignment. The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and permitted assigns, provided that no party may assign, delegate or
otherwise transfer any of its rights, interests or obligations under this
Agreement without the prior written consent of the other parties hereto,
provided that each Purchaser may assign, delegate or otherwise transfer any of
its rights, interests or obligations under this Agreement to an Affiliate
without the consent of the Shareholders; provided, further that such assignment
shall not relieve such Purchaser of its obligations hereunder without the
consent of Shareholders.
SECTION 4.06 Fees and Expenses. Except as otherwise provided herein,
all costs and expenses (including, without limitation, all fees and
disbursements of counsel, accountants, investment bankers, experts and
consultants to a party) incurred in connection with this Agreement and the
transactions contemplated hereby shall be paid by the party incurring such costs
and expenses.
SECTION 4.07 Specific Performance. The parties hereto agree that
irreparable damage would occur in the event that any provision of this Agreement
was not performed in accordance with the terms hereof and that the parties shall
be entitled to specific performance of the terms hereof, in addition to any
other remedy at law or in equity.
SECTION 4.08 Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York applicable to
contracts executed in and to be performed in that State.
SECTION 4.09 Disputes. All actions and proceedings arising out of or
relating to this Agreement shall be heard and determined exclusively in any New
York state or federal court sitting in the County of New York, New York.
SECTION 4.10 No Waiver. No failure or delay by any party in exercising
any right, power or privilege hereunder shall operate as a waiver thereof nor
shall any single or partial exercise thereof preclude any other or further
exercise thereof or the exercise of any other right, power or privilege. The
rights and remedies herein provided shall be cumulative and not exclusive of any
rights or remedies provided by law.
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SECTION 4.11 Counterparts. This Agreement may be executed in one or
more counterparts, and by the different parties hereto in separate counterparts,
each of which when executed shall be deemed to be an original but all of which
taken together shall constitute one and the same agreement.
SECTION 4.12 Waiver of Jury Trial. Each of the parties hereto
irrevocably and unconditionally waives all right to trial by jury in any action,
proceeding or counterclaim (whether based in contract, tort or otherwise)
arising out of or relating to this Agreement or the Actions of the parties
hereto in the negotiation, administration, performance and enforcement thereof.
SECTION 4.13 Asset Purchase Agreement. All references to the Asset
Purchase Agreement herein shall be to such agreement as may be amended by the
parties thereto from time-to-time.
ARTICLE V
REPRESENTATIONS, WARRANTIES and
COVENANTs OF SPOUSEs
Each Spouse hereby represents warrants and covenants to Purchasers as
follows:
SECTION 5.01 Waiver of Community Property Rights. Such Spouse shall not
assert or enforce, and does hereby waive, any rights granted under any community
property statute with respect to the Shares that would adversely affect the
covenants made by his or her Shareholder spouse pursuant to this Agreement. Such
Spouse acknowledges receipt and review of a copy of the Asset Purchase Agreement
and this Agreement.
SECTION 5.02 Authorization. Such Spouse has full legal capacity and
authority to enter into this Agreement and to carry out such person's
obligations hereunder. This Agreement has been duly executed and delivered by
such Spouse, and (assuming due authorization, execution and delivery by
Purchasers and Shareholders) this Agreement constitutes a legal, valid and
binding obligation of such Spouse, enforceable against such Spouse in accordance
with its terms.
[Signature page(s) follows]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
LEAD PURCHASER
THOMSON BROADCAST & MEDIA Address:
SOLUTIONS, INC.
By:_________________________________
Name:_______________________________
Title:______________________________
PATENT PURCHASER
THOMSON LICENSING, S.A. Address:
By:_________________________________
Name:_______________________________
Title:______________________________
SHAREHOLDERS
_________ Address:
________________________________________
JEFFREY PARKER
Address:
________________________________________
DEBORAH PARKER
J-PARKER FAMILY LIMITED PARTNERSHIP Address:
By:____________________________________
Name: Jeffrey Parker
Title: General Partner
Address:
_______________________________________
ERIC PARKER
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Address:
_______________________________________________
SARI PARKER
Address:
_______________________________________________
JOSHUA PARKER
Address:
_______________________________________________
TODD PARKER
Address:
_______________________________________________
JUANITA JEAN PARKER
T-PARKER FAMILY LIMITED PARTNERSHIP____________ Address:
By:____________________________________________
Name: Todd Parker
Title: General Partner
Address:
_______________________________________________
STACIE WILF
Address:
_______________________________________________
LARRY WILF
S-PARKER WILF FAMILY LIMITED Address:
PARTNERSHIP
By:____________________________________________
Name: Stacie Wilf
Title: General Partner
Address:
_______________________________________________
PARKER WILF
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Address:
_______________________________________________
DAVID WILF
Address:
_______________________________________________
BARBARA PARKER
Address:
_______________________________________________
WILLIAM SAMMONS
Address:
_______________________________________________
CHRIS SAMMONS
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EXHIBIT A
SHAREHOLDERS
Percentage of Outstanding
Shares (Based on
Number of Shares of 17,959,504 Shares of
Company Common Stock Common Stock Outstanding,
Owned Beneficially and of Which is the Number of
Record (except as Such Shares Outstanding
Name of Shareholder set forth below) on the Date Hereof)
------------------- ---------------- -------------------
1. Jeff Parker 227,867 1.27%
2. J-Parker Family Limited Partnership(A) 2,376,974 13.24%
3. Eric Parker(A) 3,167 0.02%
4. Sari Parker(A) 3,167 0.02%
5. Joshua Parker(A) 3,167 0.02%
6. Todd Parker 86,833 0.48%
7. T-Parker Family Limited Partnership(B) 876,225 4.88%
8. Juanita Jean Parker 10,000 0.06%
9. Stacie Wilf 29,505 0.16%
10. S-Parker Wilf Family Limited Partnership(C) 905,811 5.04%
11. Parker Wilf(C) 5,300 0.03%
12. David Wilf(C) 5,300 0.03%
378,681
13. Barbara Parker (all in street name) 2.11%
14. William Sammons 19,750 0.11%
- --- ------ ----
4,931,747 27.46%
____________________
(A) Jeff Parker has the power to vote; considered "Shares" with respect to
Jeff Parker's representations, warranties (except for legal ownership)
and obligations hereunder.
(B) Todd Parker has the power to vote; considered "Shares" with respect to
Todd Parker's representations, warranties (except for legal ownership)
and obligations hereunder.
(C) Stacie Wilf has the power to vote; considered "Shares" with respect to
Stacie Wilf's representations, warranties (except for legal ownership)
and obligations hereunder.