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EXECUTIVE EMPLOYMENT AGREEMENT
This
is an employment agreement (hereafter "this Agreement")
between
ParkerVision Inc., a
Florida corporation authorized to do business in Florida (hereafter
"ParkerVision"), and
Cynthia Poehlman
(hereafter
"Executive").
Recitals
1.
ParkerVision
is in the business of developing, designing, producing,
marketing and selling RF technologies and/or integrated
circuits for varied applications in wireless communications
markets (hereafter "ParkerVision's Business").
2.
ParkerVision
desires to employ Executive, and Executive desires to work for
ParkerVision under the terms of this Agreement, and the
parties recognize that both will benefit through
Executive’s continued productive employment with
ParkerVision.
3.
At
great expense, ParkerVision has developed technology and
products which are protected by patents, trade secrets, and
other intellectual property rights, and has secured accounts
and solicited potential accounts through its sales and
marketing efforts throughout the United States of America
(hereafter “U.S.”) and around the world. In this
regard, Executive will have employment responsibilities
involving development of intellectual property and/or
products, marketing and/or account contact within all
geographical locations in which ParkerVision conducts its
business. ParkerVision provides an environment conducive to
the development of ParkerVision technologies and products and
enhances Executive’s experience with those technologies
and products.
4.
With
the exception of its employees, ParkerVision considers its
most valuable assets to be its intellectual property, business
information and proprietary information, including but not
limited to, matters of a technical nature, such as the
implementation of its intellectual property, associated
intellectual and other electrical circuits, sources of product
components, engineering secrets, formulae, “know
how”, schematics, prototypes, technical drawings, secret
processes or machines, training and operation manuals,
inventions, computer software, product research and designs,
and matters of a business nature, such as information about
costs, profits, markets, product development and design,
licensing strategies and targets, personnel, business
relationships, legal strategies, marketing plans and programs,
pricing lists, sales, lists of vendors and/or actual or
prospective customers, and any other information, whether
communicated orally or in documentary or other tangible form,
concerning how ParkerVision operates its business, including
plans for future development to an extent not available to the
public (collectively referred to herein as “Confidential
Information”). The parties to this Agreement recognize
that ParkerVision has invested considerable amounts of time
and money in attaining and developing Confidential
Information, and any unauthorized disclosure or release in any
form could irreparably harm ParkerVision.
5.
The
parties recognize that Executive may take part in attaining
and developing, and/or otherwise will have access to,
ParkerVision's Confidential Information in the course of his
employment with ParkerVision and will be compensated for the
services Executive provides. Executive also recognizes and
acknowledges the importance of protecting ParkerVision’s
Confidential Information for the benefit of all of
ParkerVision’s employees.
6.
In
light of the foregoing, ParkerVision has legitimate business
interests to protect, including (a) valuable confidential
business and technical information (much of which qualifies as
trade secrets under Florida law), (b) substantial
relationships with specific prospective and existing
customers, and (c) customer goodwill associated with promotion
of ParkerVision's technologies, products and business through
its good name in the industry.
In
consideration of mutual promises set forth in this Agreement,
the parties to this Agreement hereby agree to the
following:
Nature of Employment
7.
ParkerVision
shall employ Executive as its
Chief Financial Officer with
specific duties and responsibilities to be determined by
ParkerVision’s Chief Executive Officer.
Compensation and Benefits
8.
During
his employment under this Agreement, ParkerVision shall
provide Executive with the following:
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(a) |
A
base salary at no less than the rate of $
225,000 annually
which ParkerVision may adjust upward from time to time in its sole
discretion (hereafter “Base Salary”).
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(b) |
This
section intentionally left blank
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(c) |
Beginning
with the fiscal year ending December 31, 2008, in addition to his
Base Salary, Executive is eligible for a bonus opportunity to be
earned on achievement of annual qualitative and/or financial goals
as recommended by the Chief Executive Officer (in consultation with
Executive) and approved by the Compensation Committee of
ParkerVision’s Board of Directors (“Compensation
Committee”).
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(d) |
ParkerVision
shall grant to Executive restricted share units
(“RSUs”) as set forth on the schedule attached as
Exhibit A. These RSUs represent the 2008 and 2009 long term equity
incentive awards for Executive. The Compensation Committee may, at
its sole discretion, grant additional equity compensation in the
form of RSUs, restricted shares or share options during the term of
this Agreement.
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(e) |
Executive
shall be eligible to participate in the employee benefits plans
ParkerVision maintains for its other executives who are parties to
an agreement in a form substantially similar to this Agreement
(hereafter “Similarly Situated Executives”), subject in
each case to the generally applicable terms and conditions of the
benefit plan or program.
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9.
The
bonus described in subparagraph 8(c) above shall be paid no
later than the
later of: (
1
)
the 15th
day of the third month following the end of Executive's first
taxable year in which the right to the payment is no longer
subject to a substantial risk of forfeiture; or (2) the 15th
day of the third month following
the end of ParkerVision’s first
taxable year
in
which the right to the payment is no longer subject to a
substantial risk of forfeiture .
Termination of Employment
10.
Executive
and ParkerVision acknowledge that Executive’s employment
under this Agreement shall be terminated immediately upon his
death or the conclusion of six (6) months after he becomes
disabled (as defined below), whichever is earlier, or may be
terminated any time at will upon either party delivering to
the other written notice of employment termination at least
thirty (30) days in advance of the termination date stated in
the notice (hereafter “Termination Date”), with
ParkerVision having the right and discretion to provide thirty
(30) days of pay in lieu of prior notice at the rate of
Executive’s Base Salary ,
subject to the limitations provided in paragraph 14; providing
further that Executive
will receive such notice pay at the termination day interview.
As of the Termination Date, except as expressly provided
below, ParkerVision’s obligation to provide compensation
and benefits to Executive shall cease.
Severance Package
11.
Executive
shall receive a Severance Package from ParkerVision if the
following occurs:
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(a)
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Executive
executes, and does not revoke, a Severance Agreement and Release
substantially in the form attached as Exhibit B to this Agreement;
and
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(b)
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ParkerVision
terminates Executive’s employment without
“Cause,” Executive resigns his employment from
ParkerVision with “Good Reason”
or
a “Change in Control” occurs, each as defined below;
or
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(c)
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Executive
becomes disabled, defined as meeting one of the following
requirements:
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(1)
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Executive
is unable to engage in any substantial gainful activity by reason
of any medically determinable physical or mental impairment that
can be expected to result in death or can be expected to last for a
continuous period of not less than twelve (12) months;
or
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(2)
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Executive
is, by reason of any medically determinable physical or mental
impairment that can be expected to result in death or can be
expected to last for a continuous period of not less than twelve
(12) months, receiving income replacement benefits for a period or
not less than three (3) months under an accident and health plan
covering Executive.
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12.
“Cause”
for ParkerVision to terminate Executive’s employment is
defined as one or more of the following:
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(a)
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Willful
and continued failure to perform Executive’s job duties after
ParkerVision’s written notice to Executive of
same.
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(b)
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A
material violation of a ParkerVision policy or
procedure.
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(c)
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An
act of dishonesty or fraud intended to result in a benefit to
Executive at ParkerVision’s expense.
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(d)
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Misconduct
connected with work as interpreted under Florida’s
unemployment compensation law.
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(e)
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Conviction
of, or a plea of guilty or no contest to, a felony or other crime
involving dishonesty or violence.
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(f)
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Executive’s
material breach of this Agreement that is not cured within thirty
(30) days after ParkerVision delivers to Executive written notice
of such breach.
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13.
“Good
Reason” for Executive to voluntarily terminate his
employment with ParkerVision is defined as one or more of the
following conditions,
which must arise without the consent of Executive
:
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(a)
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A
material diminution in Executive’s authorities, duties, or
responsibilities.
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(b)
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A
material diminution in Executive’s base compensation and
benefits, except for a reduction applicable generally to
ParkerVision’s Similarly Situated Executives.
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(c)
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Material
relocation of Executive’s primary office
location.
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(d)
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Any
action or inaction by ParkerVision that constitutes a
material
breach by
ParkerVision of
this Agreement under
which the Executive
provides
services .
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The
termination must occur during the six (6) month period
following the initial existence of one or more of the above
stated conditions.
Executive
must provide written notice to ParkerVision of the condition
which constitutes “Good Reason” within a period
not to exceed ninety (90) days of the initial existence of the
condition. Upon the giving of such notice, ParkerVision shall
have a period of thirty (30) days during which it may remedy
the condition, and if so remedied, ParkerVision shall not be
required to pay the Severance Package.
14.
“Severance
Package” is defined as follows:
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(a)
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Continuation
of Executive’s ending Base Salary for a twelve (12) month
period following the Termination Date.
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(b)
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Payment
of the bonus described in subparagraph 8(c) above, prorated by the
number of weeks Executive worked in the fiscal year divided by
fifty two (52), determined and payable when bonuses for those
Similarly Situated Executives who worked through the fiscal year
are determined and paid.
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(c)
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If
Executive timely elects group health insurance continuation
coverage pursuant to the Consolidated Omnibus Budget Reconciliation
Act (COBRA), payment of the premiums for such coverage for
the period
of time during which the
Executive
would be entitled (or would, but for
such
plan, be entitled) to continuation coverage under a
group
health plan
of
ParkerVision
under section 4980B of the Internal Revenue Code if Executive
elected such coverage and paid the applicable premiums
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(d)
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If
the Termination Date occurs within two (2) years after a Change in
Control (as defined below) while this Agreement is in effect, in
lieu of the severance component in subparagraph 14(a) above,
200% of
his greatest final annual Base Salary over the term of this
Agreement, plus an amount equal to the greater of:
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(i)
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the
bonus or annual incentive compensation earned by Executive during
the prior full fiscal year before a Change in Control,
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(ii)
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the
average of the bonus or annual incentive compensation earned by
Executive during the three (3) full fiscal years, or that number of
full fiscal years Executive was employed by ParkerVision if less,
before a Change in Control based on the years in which Executive
was eligible to receive such compensation; or
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(iii)
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if
not entitled to any bonus or annual incentive compensation during
any of the three (3) years before the Change in Control, the amount
set forth in subparagraph 14(b) above as if no Change in Control
had occurred.
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(e)
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If
Executive qualifies as a
“ specified
employee
” under
regulations pursuant to Internal Revenue Code section
409A,
the foregoing provisions shall be subject to the following
modifications:
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(
i
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Payments
due within six (
6
)
months
of the
Termination Date shall
not exceed two times the lesser of: (1) the sum of Executive's
annualized compensation based upon the annual rate of pay for
services provided to ParkerVision for the taxable year of Executive
preceding the taxable year of Executive in which Executive
terminates employment with ParkerVision (adjusted for any increase
during that year that was expected to continue indefinitely if
Executive had not terminated employment) ,
or (2) the maximum
amount that may be taken into account under a qualified plan
under
Internal Revenue Code section
401(a)(17)
for the year in which Executive
has a separation from service (“Specified Employee
Limitation”) .
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(ii)
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Where
amounts are paid in the Severance Package to a “specified
employee” within six months following termination, no amount
of the Severance Package may be paid later than the last day of the
second taxable year of the Executive following the taxable year of
the Executive in which occurs the separation from
service.
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(f)
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To
the extent that severance benefits set forth in subparagraphs
14(a), 14(b), 14(c) and 14(d) above are deemed to be
“parachute payments” in accordance with Internal
Revenue Code regulations, Executive will be entitled to a
“golden parachute excise tax” gross-up on such
benefits, provided that the parachute payments are at least one
hundred ten percent (110%) of the “safe harbor” amount
(2.99 times average W-2 amount for the five calendar years
preceding the year in which the Change in Control occurs).
Notwithstanding the foregoing, if the parachute payments to
Executive are between one hundred percent (100%) and one hundred
ten percent (110%) of the safe harbor amount, then there will be a
cut back of the total amount to bring the total parachute payments
within the safe harbor.
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(g)
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If
Executive’s employment is terminated after six (6) months of
his becoming disabled, the Severance Package shall be limited to
the benefit set forth in subparagraph 14(c) above.
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15.
A
Change in Control shall mean any one of the following
events:
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(a)
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An
acquisition by any one person, or more than one person acting as a
group, of the ownership of stock of ParkerVision that, together
with the stock held by such person or group, constitutes more than
sixty five percent (65%) of the total fair market value or combined
voting power of the stock of ParkerVision (including by way of
merger or reorganization). If any one person, or more than one
person acting as a group, is considered to own more than sixty five
percent (65%) of the total fair market value or total voting power
of the stock of ParkerVision, the acquisition of additional stock
by the same person or persons is not considered to cause a change
in the ownership of ParkerVision. An increase in the percentage of
stock owned by any one person, or persons acting as a group, as a
result of a transaction in which ParkerVision acquires its stock in
exchange for property is treated as an acquisition of
stock.
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(b
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An
acquisition by any one person
,
or more than one person acting as
a
group, or an acquisition during the twelve (12) month period ending
on the date of
the most
recent acquisition by such person or
persons
,
of an
ownership of stock of
ParkerVision possessing
thirty
five percent (35%) or more of the total
voting
power of the
stock of ParkerVision. If any one
person,
or
more than
one person acting as a group ,
is considered
to effectively control ParkerVision, within the
meaning
of
this
subparagraph 16(b), the acquisition
of
additional control of ParkerVision by the same person or persons is
not considered to cause a change in control of
ParkerVision.
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(c)
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The
replacement, during any
period of twelve ( 12)
months
of a
majority of members of ParkerVision's board of directors
by
directors whose appointment or
election
is not endorsed by
a majority of the members
of ParkerVision's board of directors
before
the date of
the appointment
or election .
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(d)
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An
acquisition by any one person, or more than one person acting as a
group, or an acquisition during the twelve (12) month period ending
on the date of the most recent acquisition by such person or
persons, of assets from ParkerVision that have a total gross fair
market value equal to or more than sixty five percent (65%) of the
total gross fair market value of all of the assets of ParkerVision
immediately before such acquisition or acquisitions. For this
purpose, gross fair market value means the value of the assets
being disposed of, determined without regard to any liabilities
associated with such assets.
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Other Simultaneous Employment/Duty of Loyalty
16.
Executive
will at all times perform the duties required of his position
and title with ParkerVision under this Agreement. At all
times, Executive will act with honesty and integrity in the
best interest of ParkerVision.
17.
While
in ParkerVision's employ, Executive will refrain from engaging
in any other business activity, including, without limitation,
providing consulting services, without ParkerVision's advance
written consent (which shall not be unreasonably withheld and
shall be provided to Executive within 30 days of
Executive’s request), and Executive will promptly notify
ParkerVision's Chief Executive Officer of any information he
learns about any current or former Executive of ParkerVision
engaging in any business activity similar or related to
ParkerVision's Business.
Intellectual Property
18.
In
this Agreement, "Intellectual Property" shall mean all
discoveries, concepts, ideas, inventions, improvements,
derivatives, extensions, original works of authorship,
processes, machines, combinations, computer programs,
databases, trademarks, and trade secrets, whether or not
protectable under the patent, copyright, and/or trade secret
laws, and all related know-how that Executive made, developed,
conceived, first reduced to practice or created, either alone
or jointly with others, during Executive’s course of
employment with ParkerVision and continuing one (1) year after
Executive’s termination of employment with ParkerVision,
as related to items (a), (b), (c), and/or (d) in paragraph 19
below, for whatever reason.
19.
Executive
shall promptly disclose to ParkerVision all Intellectual
Property that: (a) is developed using equipment, supplies,
facilities, Confidential Information, or personnel of
ParkerVision; (b) results from or is suggested by work
Execut
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