-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, HM+uINCwCFqMN0k2rvQZ+zZ7HxNb96ZXfhEhb67a8bFASo8b/GgRfXsc/0x3rj6i N02dTodscLLk4z/7Y5RaNw== 0001093801-04-000205.txt : 20040210 0001093801-04-000205.hdr.sgml : 20040210 20040210153921 ACCESSION NUMBER: 0001093801-04-000205 CONFORMED SUBMISSION TYPE: S-3/A PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20040210 FILER: COMPANY DATA: COMPANY CONFORMED NAME: PARKERVISION INC CENTRAL INDEX KEY: 0000914139 STANDARD INDUSTRIAL CLASSIFICATION: RADIO & TV BROADCASTING & COMMUNICATIONS EQUIPMENT [3663] IRS NUMBER: 592971472 STATE OF INCORPORATION: FL FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-3/A SEC ACT: 1933 Act SEC FILE NUMBER: 333-110712 FILM NUMBER: 04581882 BUSINESS ADDRESS: STREET 1: 8493 BAYMEADOWS WAY CITY: JACKSONVILLE STATE: FL ZIP: 32256 BUSINESS PHONE: 9047371367 MAIL ADDRESS: STREET 1: 8493 BAYMEADOWS WAY CITY: JACKSONVILLE STATE: FL ZIP: 32256 S-3/A 1 s3a-204.txt PARKERVISON, INC. As filed with the Securities and Exchange Commission on February 10, 2004 Registration No. 333-110712 - -------------------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 ---------------- AMENDMENT NO. 2 TO FORM S-3 REGISTRATION STATEMENT Under THE SECURITIES ACT OF 1933 ---------------- PARKERVISION, INC. (Exact name of registrant as specified in its charter) FLORIDA 59-2971472 State or Jurisdiction of (I.R.S. Employer Incorporation or Organization Identification Number) 8493 Baymeadows Way Jacksonville, Florida 32256 Telephone (904) 737-1367 (Address of principal executive offices) Jeffrey Parker, President ParkerVision, Inc. 8493 Baymeadows Way Jacksonville, Florida 32256 Telephone (904) 737-1367 (Name, address and telephone number, including area code, of agent for service) with a copy to: David Alan Miller, Esq. Graubard Miller 600 Third Avenue New York, New York 10016-2097 Telephone (212) 818-8800 Facsimile (212) 818-8881 The registrant hereby amends this Registration Statement on such date or dates as may be necessary to delay its effective date until the registrant shall file a further amendment which specifically states that this Registration Statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933 or until the Registration Statement shall become effective on such date as the Commission, acting pursuant to said Section 8(a), may determine. ------------------- THE INFORMATION IN THIS PROSPECTUS IS INCOMPLETE AND MAY BE CHANGED. THE SELLING STOCKHOLDER MAY NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH THE SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER TO SELL THESE SECURITIES AND IS NOT SOLICITING AN OFFER TO BUY THESE SECURITIES IN ANY STATE WHERE THE OFFER OR SALE OF THESE SECURITIES IS NOT PERMITTED. SUBJECT TO COMPLETION, FEBRUARY 10, 2004 PROSPECTUS PARKERVISION, INC. 2,310,714 SHARES OF COMMON STOCK This prospectus covers up to 2,310,714 shares of common stock of ParkerVision, Inc. that may be offered for resale for the account of the selling stockholders set forth in this prospectus under the heading "Selling Stockholders" beginning on page 10. The selling stockholders may sell the shares, from time to time, at prices based on the market at the time of sale. Our common stock is traded on the Nasdaq National Market System under the symbol PRKR. On February 9, 2004 the last reported sale price of our common stock was $7.00. We will not receive any proceeds from the sale of the shares by the selling stockholders. INVESTING IN OUR COMMON STOCK INVOLVES A HIGH DEGREE OF RISK. SEE "RISK FACTORS" BEGINNING ON PAGE 5. Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or passed upon the adequacy or accuracy of this prospectus. Any representation to the contrary is a criminal offense. The date of this prospectus is _________, 2004 -2- YOU SHOULD RELY ONLY ON THE INFORMATION CONTAINED OR INCORPORATED BY REFERENCE IN THIS PROSPECTUS. WE HAVE NOT AUTHORIZED ANYONE TO PROVIDE YOU WITH DIFFERENT INFORMATION. WE ARE NOT MAKING AN OFFER OF THESE SECURITIES IN ANY STATE WHERE THE OFFER IS NOT PERMITTED. YOU SHOULD NOT ASSUME THAT THE INFORMATION IN THIS PROSPECTUS IS ACCURATE AS OF ANY DATE OTHER THAN THE DATE ON THE FRONT PAGE OF THIS PROSPECTUS. TABLE OF CONTENTS BUSINESS SUMMARY...............................................................4 RISK FACTORS...................................................................6 USE OF PROCEEDS...............................................................10 SELLING STOCKHOLDERS..........................................................11 PLAN OF DISTRIBUTION..........................................................13 LEGAL MATTERS.................................................................14 EXPERTS.......................................................................15 WHERE YOU CAN FIND ADDITIONAL INFORMATION.....................................15 --------------------------------------------- -3- BUSINESS SUMMARY GENERAL ParkerVision, Inc., referred to in this prospectus as ParkerVision, we or us, is a company engaged in two lines of business. One is the wireless division engaged in the development and marketing of Direct2DataTM or D2DTM technology, a wireless direct conversion radio frequency technology, and associated products. The other is the video products division engaged in the design, development and marketing of automated production systems and automated video camera control systems. We were incorporated under the laws of the State of Florida on August 22, 1989. Our executive offices are located at 8493 Baymeadows Way, Jacksonville, Florida 32256. Our telephone number is (904) 737-1367. OPERATING HISTORY Since founding, ParkerVision has operated at a loss in each fiscal year. We began offering video products in 1990, and that division currently operates at a small loss. We started the wireless division in 1995 and began offering wireless products in the third quarter 2003, but to date, that division has operated at a substantial loss each year. Revenues for our wireless division products, to date, have been inconsequential, especially when compared with our expenses of operations and the research and development costs incurred in each of our past operating periods. Through September 30, 2003, we have an accumulated deficit of $89,888,723. To date, our operations have been funded by the sale of equity securities from time to time and revenues from our video division products. Our financial statements as of December 31, 2002, included an explanatory paragraph in the audit opinion regarding the company's requirement to obtain additional funding in order to continue its business plan beyond 2003. During fiscal year 2003, we reduced some of our expenses and in March and November 2003 raised an aggregate of approximately $25,000,000 in additional capital from the sale of common stock. We believe that the current cash and investments of the company are sufficient to fund operations for at least the next 12 months. Therefore, the financial issues impacting the implementation of our business plan at December 31, 2002 and during the earlier part of fiscal 2003 are not currently issues. Nonetheless, we expect to continue to have significant research and development costs and marketing expenses in the near term, and we do not expect that revenues will cover all our operating expenses in fiscal year 2004. Therefore, in the future we may have to raise additional capital. WIRELESS DIVISION We have developed radio frequency transceivers based on what we believe to be an entirely new electronic circuit configuration and design. We market these under the names Direct2Data or D2D. We believe our D2D technology enables the creation of practical, high performance transceivers that reduce or eliminate transmission and receiving problems when compared to fundamental circuit configurations based on solutions developed over fifty years ago. Transceiver products using the current widely accepted radio technology have inherent transmission and receiving limitations. These limitations compromise the overall performance of the transceivers, use more power to drive them, are more expensive to manufacture and must be larger in size (which also means heavier) to function at levels similar to products using the D2D technology. Wireless products employing -4- D2D technology, when compared to other products, have the ability to function at farther distances, with increased connection reliability, may be manufactured less expensively, and use less power to drive them. In September and December 2003, we introduced our first D2D-based products, which are a wireless local area networking card marketed under the trade name Horizons,(TM) a wireless four-port router and a wireless universal serial bus adaptor. We promote and sell our wireless consumer products on our website and through an Internet based retailer. We are exploring additional channels of commercial product distribution, but have not entered into any arrangements to date. We also are marketing our designs and semiconductor products to product manufacturers for integration into their products. VIDEO DIVISION The video division encompasses our automated live television production systems, marketed under the tradename PVTV(TM), and automated video camera control systems, marketed under the tradename CameraMan(R). ParkerVision provides training, support and other services related to these products. PVTV systems are marketed to broadcasters in the US and Canada and are designed specifically to meet the needs of studio production markets. The PVTV product line combines a professional television broadcast video production system that integrates video, audio, teleprompter, machine control, character generators and still stores and control functions. PVTV systems, at the election of the customer, also may incorporate ParkerVision camera systems. With the PVTV system, broadcasters are able to economize resources by maximizing their production capabilities with many fewer employee operators. The CameraMan systems permit non-professional video users to create professional-quality video communications. We principally market the CameraMan systems to educational and videoconferencing segments of the commercial market and to the broadcast and professional video user. PATENTS We have approximately 46 issued patents and 132 patent applications filed in the United States and in foreign jurisdictions. We believe the number and scope of these patents are an important asset of ParkerVision and gives it a significant competitive advantage. -5- RISK FACTORS The shares of common stock being offered hereby are speculative and should not be purchased by anyone who cannot afford a loss of their entire investment. Before making an investment in ParkerVision, you should carefully consider the risks described below. PARKERVISION HAS A HISTORY OF LOSSES AND CAPITAL FUNDING WHICH MAY ULTIMATELY COMPROMISE OUR ABILITY TO IMPLEMENT OUR BUSINESS PLAN AND CONTINUE IN OPERATIONS. ParkerVision has had losses in each year since its inception in 1989. For the fiscal years 2001 and 2002 and for the nine months ended September 30, 2003, our losses were approximately $16,600,000, $17,300,000 and $16,200,000, respectively. We had an accumulated deficit of $89,888,723 at September 30, 2003. In our financial statements at December 31, 2002 and during 2003, we indicated that the long-term financial condition of the company was dependent on either generating revenues to off-set our operating expenses or raising additional capital. Our recent operating losses have resulted from declining revenues of our video products and insufficient sales of our wireless products and technology. We also have continued our expenditures on research and development of both video and wireless products and pursing patent protection for our intellectual property. If we are not able to generate sufficient revenues, and we have insufficient capital resources, we will not be able to implement our business plan and investors will suffer a loss in their investment. PARKERVISION MAY REQUIRE ADDITIONAL CAPITAL IN THE FUTURE WHICH IF IT CANNOT RAISE WILL RESULT IN OUR NOT BEING ABLE TO IMPLEMENT OUR BUSINESS PLAN. Because ParkerVision has had net losses and, to date, has not generated positive cash flow from operations, it has funded its operating losses from the sale of equity securities from time to time. The most recent sales were of common stock sold in two private placements in March 2003 and November 2003 in which it raised an aggregate of approximately $25,000,000. ParkerVision anticipates that its business plan will continue to require significant expenditures for research and development, patent protection, manufacturing, marketing and general operations. ParkerVision's current capital resources are expected to sustain operations for at least the next 12 months. Therefore, unless we increase revenues to a level that they cover operating expenses or reduce costs, we may require additional capital in the future to fund these expenses. Financing, if any, may be in the form of loans or additional sales of equity securities. A loan or the sale of preferred stock may result in the imposition of operational limitations and other covenants and payment obligations, any of which may be burdensome to ParkerVision. The sale of equity securities will result in dilution to the current stockholders' ownership. ParkerVision does not have any plans or arrangements for additional financing at this time. MICROELECTRONIC HARDWARE AND SOFTWARE IS SUBJECT TO RAPID TECHNOLOGICAL CHANGES WHICH IF WE ARE UNABLE TO MATCH OR SURPASS, WILL RESULT IN A LOSS OF COMPETITIVE ADVANTAGE AND MARKET OPPORTUNITY. Because of the rapid technological development that regularly occurs in the microelectronics industry, ParkerVision must continually devote substantial resources to developing and improving its technology and introducing new product offerings and creating new products. For example, in fiscal year 2002 and for the nine months ended September 30, 2003, we spent approximately $13,900,000 and $11,600,000, respectively, on research and development, and in the coming year we expect to spend a similar amount. These efforts and expenditures are necessary to establish and increase market share and grow revenues. If another company offers better products or ParkerVision development lags, a competitive position or market window opportunity may be lost, and therefore the revenues or the potential of revenues of ParkerVision may be adversely affected. -6- IF OUR PRODUCTS ARE NOT COMMERCIALLY ACCEPTED, OUR DEVELOPMENTAL INVESTMENT WILL BE LOST AND OUR FUTURE BUSINESS CONTINUATION WILL BE IMPAIRED. There can be no assurance that ParkerVision's research and development will produce commercially viable technologies and products. If new technologies and products are not commercially accepted, the funds expended will not be recoverable, and ParkerVision's competitive and financial position will be adversely affected. In addition, perception of ParkerVision's business prospects will be impaired with an adverse impact on its ability to do business and to attract capital and employees. FAILING TO ACHIEVE MARKET ACCEPTANCE OF OUR D2D TECHNOLOGY WILL RESULT IN AN ADVERSE IMPACT ON OUR BUSINESS PROSPECTS AND COMPROMISE THE MARKET VALUE OF THE TECHNOLOGY. The ParkerVision wireless technology represents what we believe to be a significant change in the circuit design of wireless radio-frequency communications. To achieve market acceptance, we will need to demonstrate the benefits of its technology over more traditional solutions through the development of marketable products and aggressive marketing. In many respects, because the D2D technology is a radically different approach in its industry, it is very difficult for ParkerVision to predict the final economic benefits to users of the technology and the financial rewards that ParkerVision might expect. If the D2D technology is not established in the market place as an improvement over current, traditional solutions in wireless communications, our business prospects and financial condition will be adversely affected. IF OUR PATENTS AND INTELLECTUAL PROPERTY DO NOT PROVIDE US WITH THE ANTICIPATED MARKET PROTECTIONS AND COMPETITIVE POSITION, OUR BUSINESS AND PROSPECTS WILL BE IMPAIRED. ParkerVision has been awarded 46 patents and has approximately 132 patent applications pending relating to its microelectronic technologies. ParkerVision relies on these to provide competitive advantage and protect it from theft of its intellectual property. ParkerVision believes that many of these patents are for entirely new technologies. If the patents are not issued or issued patents are later shown not to be as broad as currently believed or otherwise challenged such that some or all of the protection is lost, ParkerVision will suffer adverse effects from the loss of competitive advantage and its ability to offer unique products and technologies. Concomitantly, there would be an adverse impact on its financial condition and business prospects. IF WE DO NOT COMPLY WITH THE APPROVAL REQUIREMENTS OF THE FEDERAL COMMUNICATIONS COMMISSION IN RESPECT OF OUR PRODUCTS, WE WILL NOT BE ABLE TO MARKET THEM WITH A RESULTING LOSS OF BUSINESS AND PROSPECTS. ParkerVision must obtain approvals from the United States Federal Communications Commission for the regulatory compliance of its products in the United States. ParkerVision also may have to obtain approvals from equivalent foreign government agencies where its products are sold internationally. Currently, ParkerVision has obtained all required approvals. Generally the approval process is routine and takes from one to two months without substantial expense. In the event, however, that approval is not obtained, or there is a change in current regulation that impacts issued approvals or the approval process, there may be an impact on the ability of ParkerVision to market its products and on the business prospects of ParkerVision. -7- IF THE PVTV AND CAMERA SYSTEM PRODUCTS CANNOT COMPETE WITH OTHER PRODUCTS IN THE MARKET PLACE, THERE WILL BE REDUCED SALES AND REVENUES AND A LOSS OF PRIOR RESEARCH AND MARKETING INVESTMENT BY THE COMPANY. The broadcast studio production industry is highly competitive. There are many other companies that offer products that singly or in combination can compete directly or indirectly with those of ParkerVision. The principal competitors include Chryon Corporation, Harris Corporation, Pinnacle Systems, Leitch Technology Corporation, Seachange Corporation, Sony Corporation, and Thompson/Grass Valley, among others. Each of these companies are well established, have substantially greater financial and other resources and have established reputations or success in the development, sale and service of products. They also have significant advertising budgets that permit them to implement extensive advertising and promotional campaigns in response to competitors. If these or other companies improve or change their products or launch significant marketing efforts in the market segments in which ParkerVision operates, ParkerVision may lose market share and revenue opportunities. IF PARKERVISION CANNOT DEMONSTRATE THAT ITS D2D PRODUCTS CAN COMPETE IN THE MARKETPLACE AND ARE BETTER THAN CURRENT ELECTRONICS SOLUTIONS, THEN WE WILL NOT BE ABLE TO GENERATE THE SALES WE NEED TO CONTINUE OUR BUSINESS AND OUR PROSPECTS WILL BE IMPAIRED. In respect of the current product offerings, ParkerVision now faces competition from other chip suppliers such as Philips, Texas Instruments, Analog Devices and Broadcom, and also in finished products suppliers such as Netgear, Cisco, Proxim and D.Link. In respect of future product offerings, it is likely that ParkerVision will face competition from entities such as Qualcom, Nokia, Panasonic, Sony and Samsung. This technology may also face competition from other emerging approaches or new technological advances which are under development and have not yet emerged. PARKERVISION OBTAINS CRITICAL COMPONENTS FOR ITS PRODUCTS FROM VARIOUS SUPPLIERS, SOME OF WHICH ARE SINGLE SOURCES, WHICH PUTS PARKERVISION AT RISK IF THEY DO NOT FULFILL THE PARKERVISION REQUIREMENTS OR THEY INCREASE PRICES THAT CANNOT BE PASSED ON. Both the video and wireless divisions of ParkerVision obtain critical components from various suppliers, including Leitch Incorporated, Snell & Wilcox, Zydas, Texas Instruments, Panasonic and Television Equipment Association. Some of these are single sources. Because ParkerVision depends on outside sources for supplies of various parts of its products, ParkerVision is at risk that it may not obtain these components on a timely basis or may not obtain them at all due to lack of capacity, parts shortages in the overall marketplace and other disruptions at these sources, among other things. To date, ParkerVision has not experienced any significant problems with sources of components that have affected its ability to fulfill its obligations in a timely fashion. In addition, ParkerVision has neither ended or had terminated any supply arrangements of critical components where an alternative has not been readily available. Notwithstanding its past history of supplies and maintaining inventory of some components, if ParkerVision is unable to obtain its components from the current sources, its business would be disrupted, and it would have to expend some of its resources to modify its products or find new suppliers and work with them to develop appropriate components. Although ParkerVision has been able to pass on price increases encountered to date, ParkerVision is at risk for increases in prices imposed by sources over which ParkerVision has no control. Any inability of ParkerVision to obtain components or absorb price increases may have an adverse effect on its own ability to fulfill orders and on its financial condition. -8- IF OUR PVTV PRODUCTS ARE NOT PERCEIVED TO PROVIDE A BETTER BROADCAST OPERATING ENVIRONMENT AND EFFECT SAVINGS TO JUSTIFY THE INVESTMENT OR EXHIBIT OPERATIONAL PROBLEMS, PARKERVISION'S REVENUES WILL BE SIGNIFICANTLY AFFECTED. The PVTV products of ParkerVision were introduced in 1998 and generated revenues of approximately $10,700,000 for the twelve months ended December 31, 2002 and $4,600,000 for the nine months ended September 30, 2003. ParkerVision also receives substantial revenues through support contracts on its PVTV products. If the company is unable to sell the PVTV products to broadcasters that seek a new way of operating or once in place the products do not meet the requirements of customers, ParkerVision will lose product acceptance and market share. The loss of its current customers and markets would diminish future marketing opportunities and presence in the broadcast market segment in which it seeks to be a presence and adversely affect current and future revenues. PARKERVISION BELIEVES THAT IT WILL RELY, IN LARGE PART, ON KEY BUSINESS RELATIONSHIPS FOR THE SUCCESSFUL COMMERCIALIZATION OF ITS D2D TECHNOLOGY, WHICH IF NOT DEVELOPED OR MAINTAINED, WILL HAVE AN ADVERSE IMPACT ON ACHIEVING MARKET AWARENESS AND ACCEPTANCE AND LOSS OF BUSINESS OPPORTUNITY. To achieve a wide market awareness and acceptance of its D2D technology, as part of its business strategy, ParkerVision will attempt to enter into a variety of business relationships with other companies which will incorporate the D2D technology into their products and/or market products based on D2D technology through retail or direct marketing channels. From time to time, the company has had discussions for OEM and other types of supply arrangements of its wireless technology and products, but to date, no supply and similar agreements have been concluded. This commercialization avenue is in addition to the direct marketing that we are engaged in through its Direct2Data.com website. ParkerVision's successful commercialization of the D2D technology will depend in part on its ability to meet its obligations under contracts in respect of its D2D technology and related development requirements and the other parties using the D2D technology as agreed. The failure of the business relationships will limit the commercialization of the ParkerVision D2D technology which will have an adverse impact on the business development of ParkerVision and its ability to generate revenues and recover development expenses. PARKERVISION HAS LIMITED EXPERIENCE IN THE COMMERCIAL DESIGN AND THE OUT-SOURCING OF THE MANUFACTURE OF ELECTRONIC CHIPS THAT MAY RESULT IN PRODUCTION INADEQUACIES, DELAYS AND REJECTION. ParkerVision has established a foundry relationship with Texas Instruments to manufacture the electronic chips that employ its proprietary designs to supply its production needs and those of other potential end users. To date, ParkerVision has entered into one foundry agreement with Texas Instruments, and purchases its needs on a purchase order basis. ParkerVision has limited experience in the commercial design and the manufacture of these kinds of electronic chips. If there are design flaws or manufacturing errors resulting from our inexperience, there may be resulting delays or loss of customer acceptance of the electronic chips. Either of these may be a breach of our agreements to supply chips or may cause a loss of customer willingness to use ParkerVision products. These may result in loss of commercialization opportunities as well as revenues and cause additional, unanticipated expenses with adverse financial effect. PARKERVISION MAY ENCOUNTER MANUFACTURING DIFFICULTIES OR DELAYS IN CONNECTION WITH SOME OF ITS PRODUCTS WHICH MAY HAVE AN ADVERSE EFFECT ON ITS SALES AND REVENUES. ParkerVision manufactures some of its products and in the future expects to add additional products to its manufacturing capabilities. From time to time it has experienced delays in starting production and maintaining production amounts at the quality levels necessary for its products. Similar issues may also arise with independent manufacturers that ParkerVision may employ from time to time. In the event any of these -9- issues becomes a long term or permanent problem, sales would be adversely affected and revenues and market acceptance adversely impacted. PARKERVISION IS HIGHLY DEPENDENT ON MR. JEFFERY PARKER AS ITS CHIEF EXECUTIVE OFFICER WHOSE SERVICES, IF LOST, WOULD HAVE AN ADVERSE IMPACT ON THE LEADERSHIP OF PARKERVISION AND INDUSTRY AND INVESTOR PERCEPTION ABOUT PARKERVISION'S FUTURE. Because of Mr. Parker's position in the company and the respect he has garnered in the industries in which ParkerVision operates and from the investment community, the loss of the services of Mr. Parker might be seen as an impediment to the execution of the ParkerVision business plan. If Mr. Parker were no longer available to the company, investors may experience an adverse impact on their investment. Mr. Parker has an employment contract that expires in September 2005. ParkerVision maintains key-employee life insurance for its benefit on Mr. Parker. IF PARKERVISION IS UNABLE TO ATTRACT THE HIGHLY SKILLED EMPLOYEES IT NEEDS FOR RESEARCH AND DEVELOPMENT AND SALES AND SERVICING, IT WILL NOT BE ABLE TO EXECUTE ITS RESEARCH AND DEVELOPMENT PLANS OR PROVIDE THE HIGHLY TECHNICAL SERVICES THAT ITS PRODUCTS REQUIRE. The business of ParkerVision is very specialized in the areas of automated broadcast and production systems and video camera control systems and wireless direct conversion technology. Because these areas of business are extremely specialized, ParkerVision is dependent on having skilled and specialized employees to conduct its research and development activities, manufacturing, marketing and support. The inability to obtain these kinds of persons will have an adverse impact on its business development because persons will not obtain the information or services expected in the markets and may prevent ParkerVision successfully implementing its current business plans. THE OUTSTANDING OPTIONS AND WARRANTS MAY AFFECT THE MARKET PRICE AND LIQUIDITY OF THE COMMON STOCK. At December 31, 2003, ParkerVision had 17,959,504 shares of common stock outstanding and had issued options and warrants to purchase 7,565,727 shares of common stock. There are 5,620,819 options and warrants currently exercisable, and on each of December 31, 2004 and 2005, there will be 5,944,697 and 6,309,448, respectively, of the currently outstanding options and warrants exercisable. All of the underlying common stock of these securities is or will be registered for sale by ParkerVision to the holder or for public resale by the holder. The amount of common stock available for the sales may have an adverse impact on ParkerVision's ability to raise capital and may affect the price and liquidity of the common stock in the public market. In addition, the issuance of these shares of common stock will have a dilutive effect on the current stockholders' ownership of ParkerVision. PROVISIONS IN THE CERTIFICATE OF THE INCORPORATION AND BY-LAWS COULD HAVE EFFECTS THAT CONFLICT WITH THE INTEREST OF STOCKHOLDERS. Some provisions in the certificate of incorporation and by-laws of ParkerVision could make it more difficult for a third party to acquire control. For example, the board of directors has the ability to issue preferred stock without stockholder approval, and there are pre-notification provisions for director nominations and submissions of proposals from stockholders to a vote by all the stockholders under the by-laws. Florida law also has anti-takeover provisions in its corporate statute. USE OF PROCEEDS All the shares being offered by this prospectus are for the account of the selling stockholders. ParkerVision will not receive any of the proceeds from the sale of the shares by the selling stockholders. -10- SELLING STOCKHOLDERS The following table provides certain information about the selling stockholders' beneficial ownership of our common stock at January 15, 2004. It is also adjusted to give effect to the sale of all of the shares offered by them under this prospectus. Unless otherwise indicated, the selling stockholder possesses sole voting and investment power with respect to the securities shown.
AFTER OFFERING NUMBER OF -------------- SHARES NUMBER OF BENEFICIALLY NUMBER OF SHARES OWNED PRIOR TO PERCENTAGE SHARES BENEFICIALLY % OF NAME OFFERING OF CLASS TO BE SOLD OWNED CLASS - ---- -------- -------- ---------- ----- ----- Wellington Trust Company, National Association Multiple Common Trust Funds Trust, Emerging Companies Portfolio (1) 140,000 * 140,000 -0- * Wellington Trust Company, National Association Multiple Collective Investment Funds Trust, Emerging Companies Portfolio (1) 120,000 * 120,000 -0- * Wellington Management Portfolios (Dublin) - Global Smaller Companies Equity Portfolio (1) 4,500 * 4,500 -0- * BayStar Capital II, LP (2) 454,714 2.5% 454,714 -0- * SEI Institutional Investments Trust, Small Cap Fund (1) (3) 106,600 * 91,000 -0- * SEI Institutional Managed Trust, Small Cap Growth Fund (1)(3) 128,500 * 112,500 -0- * Seligman Global Fund Series, Inc., Seligman Global Smaller Companies Fund (1)(4) 63,000 * 63,000 -0- * Seligman Portfolios, Inc., Seligman Global Smaller Companies Portfolio (1)(4) 2,000 * 2,000 -0- * Government of Singapore Investment Company Pte, Ltd (1) 370,000 2.1% 370,000 -0- * JB Were Global Small Companies Pooled Fund (1)(5) 90,300 * 75,000 -0- * Talvest Global Small Cap Fund (1)(6) 25,800 * 22,000 -0- * TELUS Corporation Foreign Equity Active Plan (1) 9,500 * 9,500 -0- * New Zealand Funds Management Limited (1) 17,000 * 17,000 -0- * -11- AFTER OFFERING NUMBER OF -------------- SHARES NUMBER OF BENEFICIALLY NUMBER OF SHARES OWNED PRIOR TO PERCENTAGE SHARES BENEFICIALLY % OF NAME OFFERING OF CLASS TO BE SOLD OWNED CLASS - ---- -------- -------- ---------- ----- ----- British Columbia Investment Management Corporation (1) 43,000 * 43,000 -0- * Telstra Super Pty Ltd. (1) 22,000 * 22,000 -0- * Oregon Investment Council (1) 242,000 1.3% 242,000 -0- * The Dow Chemical Employees' Retirement Plan (1) 85,000 * 85,000 -0- * The Retirement Program Plan for Employees of Union Carbide Corporation (1) 72,000 * 72,000 -0- * Howard Hughes Medical Institute (1) 87,000 * 87,000 -0- * The Robert Wood Johnson Foundation (1) 95,000 * 95,000 -0- * New York State Nurses Association Pension Plan (1) 52,000 * 52,000 -0- * Ohio Carpenters' Pension Fund (1) 30,000 * 30,000 -0- * Laborers' District Council and Contractors' of Ohio Pension Fund (1) 24,000 * 24,000 -0- * Australian Retirement Fund (1) 29,600 * 25,000 -0- * Emergency Services Superannuation Board (1) 21,100 * 18,000 -0- * Retail Employees Superannuation Trust (1) 27,000 * 27,000 -0- * BC Telecom Pension Plan for Management and Exempt Employees (1) 4,500 * 4,500 -0- * David Cumming 3,000 * 3,000 53,400 *
- -------------------------- * Less than 1.0%. (1) Wellington Management Company, LLP is an investment adviser registered with the Securities and Exchange Commission under Section 203 of the Investment Advisers Act of 1940, as amended. Wellington Management, in its capacity as investment adviser, may be deemed to have beneficial ownership of the shares of common stock of ParkerVision that are owned of record by investment advisory clients of Wellington Management. Beneficial ownership, as such term is used herein, is determined in accordance with Rule 13d-3 promulgated under the Securities Exchange Act of 1934, as amended, and includes voting and/or dispositive power with respect to such shares. Wellington Management has shared voting authority over 824,500 shares and no voting authority over 1,028,500 shares listed as owned prior to the offering. (2) Steven Derby, the managing member of BayStar Capital Management, LLC, the general partner of BayStar Capital II, LP, has the ability to vote and dispose of the shares of common stock of the selling stockholder. -12- (3) SEI Investments Distribution Company, the advisor to the selling stockholder, is a registered broker dealer and is a wholly owned subsidiary of SEI Investments Company, and therefore the selling stockholder may be considered an affiliate of a member of the NASD. (4) The selling stockholder is an affiliate of Seligman Services, a registered broker-dealer. (5) Goldman Sachs & Co., an affiliate of a registered broker-dealer, and JB Were are engaged in a global alliance that offers, among other services, cash management and share trading services to retail investors. Therefore the selling stockholder may be deemed to be an affiliate of a member of the NASD. (6) Talvest Global Small Cap Fund is affiliated with CIBC World Markets Corp. and CIBC World Markets Inc., of which CIBC Wood Gundy, a registered broker-dealer, is a division. On November 14, 2003, ParkerVision consummated the sale of an aggregate of 2,310,714 shares of common stock in a private placement to a limited number of institutional and other investors in a private placement pursuant to offering exemptions under the Securities Act of 1933. The gross proceeds of the offering were $20,218,747.50. ParkerVision engaged Wells Fargo Securities LLC as placement agent pursuant to an agreement dated October 23, 2003, under which it paid an aggregate of $1,243,124 in fees and expenses in connection with the offering. Based on representations to the company in the purchase agreements and investor questionnaires, none of the selling stockholders had agreements or understandings, directly or indirectly, with any person to distribute the shares, and purchased them in the ordinary course for investment purposes. ParkerVision agreed to register the shares of common stock for resale by the investors in the private placement. The registration provisions provide that if the registration statement is not declared effective by February 14, 2004, or the registration statement is suspended after it is declared effective, any selling stockholder who owns shares of common stock purchased in the private placement will be entitled to liquidated damages of 1% of the purchase price, per month, on a pro rata daily basis, until the registration statement is declared effective or available for use after a suspension. The maximum penalty is limited to 10% of the purchase price. ParkerVision and the selling shareholders, severally, have agreed to indemnify each other in certain circumstances in connection with the registration statement. PLAN OF DISTRIBUTION The sale or distribution of the common stock may be made directly to purchasers by the selling stockholders or by any donee, or permitted transferee as principals or through one or more underwriters, brokers, dealers or agents from time to time in one or more public or private transactions, including: o block trades; o on any exchange, Nasdaq or in the over-the-counter market; o in transactions otherwise than on an exchange, Nasdaq or in the over-the-counter market; o through the writing of put or call options relating to the common stock; o the short sales of the common stock; o through the lending of such common stock; o by way of gift, settlement or contribution to capital; o through the distribution of the common stock by any selling stockholder to its partners, members or shareholders; or o through a combination of any of the above. Any of these transactions may be effected: o at market prices prevailing at the time of sale; o at prices related to such prevailing market prices; -13- o at varying prices determined at the time of sale; or o at negotiated or fixed prices. If any of the selling stockholder effects transactions to or through underwriters, brokers, dealers or agents, these underwriters, brokers, dealers or agents may receive compensation in the form of discounts, concessions or commissions from the selling stockholder or purchasers. These discounts may be in excess of those customary for the types of transactions involved. The selling stockholders and any brokers, dealers or agents that participate in the distribution of the common stock may be deemed to be underwriters within the meaning of Section 2 of the Securities Act. Any profit on the sale of common stock by them and any discounts, concessions or commissions received by any of the underwriters, brokers, dealers or agents may be deemed to be underwriting discounts and commissions under the Securities Act. The selling stockholders have agreed with the company to comply with applicable securities laws. Each of the selling shareholders and any securities broker-dealer or others who may be deemed to be statutory underwriters will be subject to the prospectus delivery requirements under the Securities Act. The offer and sale by the selling stockholders may be a "distribution" under Regulation M, in which case the selling stockholder, any "affiliated purchasers", and any broker-dealer or other person who participates in such distribution may be subject to Rule 102 of Regulation M until their participation in that distribution is completed. Rule 102 makes it unlawful for any person who is participating in a distribution to bid for or purchase stock of the same class of securities that are the subject of the distribution. A "distribution" is defined in Rule 102 as an offering of securities "that is distinguished from ordinary trading transactions by the magnitude of the offering and the presence of special selling efforts and selling methods". In addition Rule 101 under Regulation M prohibits any "stabilizing bid" or "stabilizing purchase" by a selling stockholder in connection with a distribution for the purpose of pegging, fixing or stabilizing the price of the common stock in connection with this offering. Under the securities laws of some states, the common stock may be sold in these states only through registered or licensed brokers or dealers. In addition, in some states, the common stock may not be sold unless the common stock has been registered or qualified for sale in the state or an exemption from registration or qualification is available and is complied with. The selling stockholders may also resell all or a portion of the common stock in open market transactions in reliance upon Rule 144 under the Securities Act. In these cases, they must meet the criteria and conform to the sale requirements of that rule, including a holding period of not less than one year from the date of purchase. We will pay all the costs, expenses and fees incident to the registration of the common stock. The selling stockholders will pay the costs, expenses and fees incident to the offer and sale of the common stock to the public, including commissions, fees and discounts of underwriters, brokers, dealers and agents. We have agreed to indemnify the selling stockholders against certain liabilities, including liabilities under the Securities Act. We will not receive any of the proceeds from the sale of any of the securities by the selling stockholders. LEGAL MATTERS The legality of the common stock offered by this prospectus has been passed upon by Graubard Miller. -14- EXPERTS The consolidated financial statements incorporated in this prospectus by reference to the Annual Report on Form 10-K for the year ended December 31, 2002, have been so incorporated in reliance on the report (which contains an emphasis-of-a-matter explanatory paragraph relating to the Company's significant losses and negative cash flows and management's plans to continue the business as described in Notes 2 and 19 to the financial statements) of PricewaterhouseCoopers LLP, independent certified public accountants, given on the authority of said firm as experts in auditing and accounting. WHERE YOU CAN FIND ADDITIONAL INFORMATION We file annual, quarterly and current reports, proxy statements and other information with the Securities and Exchange Commission. Our SEC filings are available to the public over the Internet at the SEC's web site at http://www.sec.gov. You may also read and copy any document we file at the SEC's public reference room at 450 Fifth Street, N.W., Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330 for further information about the public reference room. The SEC allows us to incorporate by reference the information we file with it, which means that we can disclose important information to you by referring you to those documents. The information incorporated by reference is an important part of this prospectus, and information that we file later with the SEC will automatically update and supersede this information. This prospectus incorporates by reference our documents listed below and any future filings we make with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended, until all of the securities are sold. o Annual Report on Form 10-K for the fiscal year ended December 31, 2002; o Quarterly Reports on Form 10-Q for the fiscal quarters ended March 31, 2003, June 30, 2003 and September 30, 2003; o Current Report on Form 8-K dated September 4, 2003; o Proxy Statement dated May 1, 2003, as amended, to be used in connection with the annual meeting of shareholders on June 26, 2003; and o Form 8-A declared effective on November 30, 1993, registering our common stock, under Section 12(g) of the Securities Exchange Act of 1934, as amended. Potential investors may obtain a copy of any of our SEC filings, excluding exhibits, without charge by written or oral request directed to ParkerVision, Inc., Attention: Investor Relations, 8493 Baymeadows Way, Jacksonville, Florida 32256. -15- PART II INFORMATION NOT REQUIRED IN PROSPECTUS ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION. The estimated expenses payable by us in connection with the distribution of the securities being registered are as follows: SEC Registration and Filing Fee................................... $ 1,615.13 Legal Fees and Expenses........................................... 20,000.00 Accounting Fees and Expenses...................................... 10,000.00 Printing ........................................................ 500.00 Miscellaneous..................................................... 2,884.87 ----------- TOTAL........................................................ $ 35,000.00 ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS. The laws of the Florida permit the indemnification of directors, employees, officers and agents of Florida corporations. Our articles of incorporation and bylaws provide that we shall indemnify to the fullest extent permitted by Florida law any person whom we indemnify under that law. The provisions of Florida law that authorize indemnification do not eliminate the duty of care of a director. In appropriate circumstances, equitable remedies such as injunctive or other forms of non-monetary relief will remain available. In addition, each director will continue to be subject to liability for (a) violations of criminal laws, unless the director has reasonable cause to believe that his conduct was lawful or had no reasonable cause to believe his conduct was unlawful, (b) deriving an improper personal benefit from a transaction, (c) voting for or assenting to an unlawful distribution and (d) willful misconduct or conscious disregard for our best interests in a proceeding by or in our right to procure a judgment in its favor or in a proceeding by or in the right of a stockholder. The statute does not affect a director's responsibilities under any other law, such as the federal securities laws. We have entered into indemnification and reimbursement agreements with each of our directors. The effect of the foregoing is to require us to indemnify our officers and directors for any claim arising against such persons in their official capacities if such person acted in good faith and in a manner that he or she reasonably believed to be in or not contrary to the best interests of the corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful. We have directors and officers insurance which includes insurance for claims against these persons brought under securities laws. To the extent that we indemnify our management for liabilities arising under securities laws, we have been informed by the SEC that this indemnification is against public policy and is therefore unenforceable. II-1 ITEM 16. EXHIBITS
Incorporated by Reference from No. in Number Description Document Document Filing Status - ------ ----------- -------- -------- ------------- 5.1 Opinion of Graubard Miller -- -- * 10.1 Form of Stock Purchase Agreement with each of -- -- * the investors in the November 2003 private placement who are the Selling Stockholders 10.2 Schedule of November 2003 Investors -- -- * 10.3 Foundry Agreement with Texas Instruments -- -- Filed herewith 23.1 Consent of PricewaterhouseCoopers LLP -- -- Filed herewith 23.2 Consent of Graubard Miller (included in -- -- * Exhibit 5.1) 24.1 Power of Attorney (included on signature page -- -- * of this Registration Statement)
- ------------------------------- * Previously filed (original Registration Statement No. 333-110712) Item 17. UNDERTAKINGS (a) The undersigned registrant hereby undertakes: (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: (i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933; (ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the SEC pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20 percent change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective registration statement; II-2 (iii)To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement; provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the registration statement is on Form S-3, Form S-8 or Form F-3, and the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the SEC by the registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement. (2) That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. (b) The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the registrant's annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the SEC such indemnification is against public policy expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue. II-3 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the registrant has duly caused this amendment to its registration statement (File Number: 333-110712) to be signed on its behalf by the undersigned, hereunto duly authorized, in Jacksonville, Florida on February 9, 2004. PARKERVISION, INC (Registrant) By: /s/ Jeffrey L. Parker ------------------------------------- Name: Jeffrey L. Parker Title: Chairman of the Board and Chief Executive Officer KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Jeffrey L. Parker, Todd Parker and David F. Sorrells, and each of them, with full power to act without the other, such person's true and lawful attorneys-in-fact and agents, with full power of substitution and re-substitution, for him and in his name, place and stead, in any and all capacities, to sign this Registration Statement, any and all amendments thereto (including post-effective amendments), any subsequent Registration Statements pursuant to Rule 462 of the Securities Act of 1933, as amended, and any amendments thereto and to file the same, with exhibits and schedules thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing necessary or desirable to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities and on the dates indicated. Signatures Title Date ---------- ----- ---- By: * Chief Executive Officer and February 9, 2004 ----------------------- Chairman of the Board Jeffrey L. Parker (Principal Executive Officer) By: * President and Director February 9, 2004 ----------------------- William A. Hightower By: * President, Video Business February 9, 2004 ----------------------- Unit and Director Todd Parker By: * Chief Technical Officer and February 9, 2004 ----------------------- Director David F. Sorrells By: * Secretary and Treasurer February 9, 2004 ----------------------- Stacie Wilf By: * Chief Accounting Officer February 9, 2004 ----------------------- (Principal Accounting Cynthia L. Poehlman Officer) II-4 By: * Director February 9, 2004 ----------------------- Richard A. Kashnow By: * Director February 9, 2004 ----------------------- William L. Sammons By: * Director February 9, 2004 ----------------------- Papken S. Der Torossian By: Director __________, 2004 ----------------------- Nam P. Suh * By Power of Attorney dated November 24, 2003 /s/ Jeffrey L. Parker --------------------- Jeffrey L. Parker, Attorney-in-Fact February 9, 2004 II-5
EX-10.3 3 ex103-204.txt FOUNDRY AGREEMENT WITH TEXAS INSTRUMENTS TI/PV Page 1 DEVELOPMENT AND FOUNDRY / RESALE AGREEMENT This Agreement (hereinafter "Agreement") is made in duplicate original counterparts and effective as of March 8, 2001 ("Effective Date") by and between TEXAS INSTRUMENTS INCORPORATED, a corporation duly organized and validly existing under the laws of the State of Delaware, acting by and through its Semiconductor Group with a principal place of business at 12500 TI Boulevard, Dallas, Texas 75243 (hereinafter "TI") and PARKERVISION INC., a corporation duly organized and validly existing under the laws of the State of Florida, with a principal place of business at 8493 Baymeadows Way, Jacksonville, Florida 32256 (hereinafter "ParkerVision") and TI and/or ParkerVision may be referred to herein individually as a "Party" or collectively as the "Parties", as the case may require. WHEREAS, ParkerVision is engaged in the design and development of RF integrated circuits using a direct conversion technology known within the industry as "D2DTM (Direct to Data) technology" and expects to introduce first samples of its first RF integrated circuit using D2D technology during the fourth (4th) quarter of 2000. WHEREAS, TI is engaged in the design, development and manufacture of digital baseband integrated circuits and RF integrated circuits. WHEREAS, both Parties wish to develop seamless interfaces between TI's digital baseband integrated circuits and ParkerVision's D2D RF integrated circuits such that the Parties' components can be promoted as part of reference designs for wireless applications. WHEREAS, ParkerVision wishes to buy RF integrated circuits from TI acting as ParkerVision's foundry for RF integrated circuits. WHEREAS, TI is willing for some time period to act as ParkerVision's foundry and to treat ParkerVision as a valued foundry customer, and to support ParkerVisions requirements of RF integrated circuits as part of TI's foundry service program. NOW THEREFORE, the Parties have entered into the following agreement: 1. DEFINITIONS: For the purposes of this Agreement, the following underlined terms, in addition to the terms elsewhere defined in this Agreement, will have the meanings set forth below. 1.1. "ACQUIRING PARTY" means a third party who acquires ParkerVision upon the effective date of a Change of Control. TI/PV Page 2 1.2. "AFFILIATE" shall mean, with respect to a specified entity, another person or entity that, directly or indirectly, controls or is controlled by or is under the common control with the entity specified, and the term "control" means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a person or entity, through the ability to exercise voting power, by contract or otherwise. 1.3. "CHANGE OF CONTROL" shall mean a change of control in the ownership of a Party, as further defined in Section [16.5] of this Agreement. 1.4. "COMMERCIALLY REASONABLE EFFORTS" shall mean all commercially reasonable efforts a reasonable business person would use in the performance of a specified obligation taking into account the cost associated with the performance of any such obligation, and the profit or loss to be expected as a result of its performance, and all other commercial, technical and operational factors to be taken into account by a reasonable business person. For the avoidance of any misunderstanding, the Parties hereby expressly agree that the obligation to use Commercially Reasonable Efforts does not encompass an obligation to breach an obligation to a third party. 1.5. "COLLABORATIVE CHIPSET" means a chipset comprising of a Collaborative Product and a Collaborative TI Digital Baseband Processor designated in a Statement of Work, for which the Parties have developed an Interface pursuant to and as specified in that same Statement of Work. 1.6. "COLLABORATIVE PRODUCT" means a Product developed by ParkerVision that includes or operates with an Interface, and also operates with a Collaborative TI Digital Baseband Processor, and which is a designated component of a Collaborative Chipset pursuant to and as specified in a Statement of Work. 1.7. "COLLABORATIVE TI DIGITAL BASEBAND PROCESSOR" means a TI Digital Baseband Processor developed by TI that includes or operates with an Interface, and also operates with a Collaborative Product, and which is a designated component of a Collaborative Chipset pursuant to and as specified in a Statement of Work. 1.8. "COMPETITOR FOUNDRY" means a foundry other than TI. 1.9. "D2D SUB-PART" is one of a D2D receiver, a D2D transmitter, a D2D transceiver or a D2D transmitter/receiver pair implemented in integrated circuit form and designed by ParkerVision. 1.10. "DELIVERABLE" shall mean the items to be delivered by either party to the other party in accordance with a Statement of Work or the Foundry Business Plan. TI/PV Page 3 1.11. "DESIGN WIN" means a written statement from a ParkerVision customer that such customer intends to design a system using ParkerVision's D2D technology. 1.12. "ESTIMATED SHIP DATE" shall mean the date TI approximates that it will ship a Product to ParkerVision. 1.13. " FOUNDRY PERIOD" shall mean the period during which TI acts as ParkerVision's foundry. 1.14. "FOUNDRY BUSINESS PLAN" means a unique document to be generated by the Management Team in accordance with Section [7] below. 1.15. "INDEPENDENT TECHNOLOGY" shall mean either Party's technical information, including, but not limited to, all schematics, layouts, plans, architectures, mathematical models, data, formulae, algorithms, methods, guidelines, practices, prototypes, tests, cell libraries, semiconductor topographies, reports as well as all tools, software, firmware and hardware, and all Intellectual Property Rights relating thereto, developed, owned, or possessed either (1) by a Party prior to this Agreement; or (2) at any time by a Party outside of a Project hereunder without the use of the other Party's Confidential Information. 1.16. "INTELLECTUAL PROPERTY RIGHTS" shall mean all world-wide patents, patent applications, utility models issued or pending, registered and unregistered design rights, copyrights (including copyrights on software in any form and moral rights), trade secrets and proprietary know-how, mask works and other similar statutory intellectual property or industrial rights related thereto, as well as applications for any such rights. 1.17. "INTERFACE" shall mean the gates, modules and input/output and all other semiconductor technology, whether in the form of hardware, firmware or software, which is designed pursuant to a Statement of Work to enable or optimize the exchange of data between a Collaborative Product and a Collaborative TI Digital Baseband Processor in a Collaborative Chipset. Subject to Section 5.3, an Interface may include a Party's Independent Technology. 1.18. "LIFE-TIME BUY PURCHASE ORDERS" shall mean purchase orders submitted by ParkerVision for a Product after notice that TI intends to discontinue the manufacture of a Product, subject to Section 12. 1.19. "MANAGEMENT TEAM" shall mean a team consisting of two representatives of each Party whose charter is set forth in Sections [2.2 and 2.3] below. 1.20. "PARKERVISION TRADEMARKS" means the trademarks itemized in Exhibit E attached hereto and any other Trademarks which ParkerVision elects to add to Exhibit E with TI's consent, which shall not be unreasonably withheld. TI/PV Page 4 1.21. "POINT OF NO RETURN" means a milestone set forth in a Statement of Work beyond which neither party shall be entitled to terminate for its convenience the development contemplated in the Statement of Work. 1.22. "PRODUCT" means a packaged or an unpackaged electrical and mechanical die, designed by ParkerVision and capable of being manufactured using TI Manufacturing Technology. A Product includes one or more D2D Sub-Parts. Until such time when the Management Team makes the determination contemplated in Section [6.2.2] below, the term "Product" shall not include Gallium Arsenide RF Integrated Circuits or other Gallium Arsenide goods. 1.23. "PRODUCT DESIGN DATABASE" shall mean a computer readable file describing the pattern, placement, and interconnection of the semiconductor components (including, but not limited to: transistors, resistors, capacitators, I/O pads, and components that interconnect semiconductor components) within a Product. 1.24. "PRODUCT SPECIFICATION" shall mean the visual inspection criteria, electrical test and electrical parameters and other performance criteria mutually agreed upon between TI and ParkerVision for a particular Finished Product. 1.25. "PROJECT" shall mean the Parties' development work pursuant to a Statement of Work hereunder. 1.26. "PROJECT IP" shall mean software, firmware, hardware, Interfaces and all other technical information, including, without limitations, inventions and technical or commercial know-how, conceived and reduced to practice in the course of a Project hereunder, and all intellectual property relating thereto. For the avoidance of any misunderstanding it is expressly agreed that the term "Project IP" shall not include either Party's Independent Technology, whether knowingly or inadvertently incorporated into Project IP. 1.27. "QUOTED LEAD-TIME" shall mean the approximate length of time TI requires from the date a purchase order for Product is submitted to TI by ParkerVision until such time TI can ship the Product pursuant to such purchase order. Both Parties understand and agree that Quoted Lead-Time may vary during the term of this Agreement as a result of the aggregate demand placed upon TI from all of TI's customers when compared to the aggregate manufacturing supply capability available to TI. 1.28. "REFERENCE DESIGN" means any recommendation by either Party to use its semiconductor integrated circuits in connection with one or more of the other Party's semiconductor integrated circuits; such recommendation can be in the form of schematics, a list of components or any other publication in which a Party endorses the use of its products in conjunction with the other Party's products or technology. TI/PV Page 5 1.29. "REQUESTED DELIVERY DATE" shall mean the requested arrival date for Products ordered by ParkerVision. 1.30. "RESTRICTED FIELDS" mean: (1) WLAN Infrastructure Devices and WLAN Client Devices compliant with WLAN, that support only one or more WLAN operations (single-mode capability); (2) WLAN Infrastructure Devices, compliant with WLAN, that support only dual-mode operation of one or more WLAN operations with one or more WAN operations (dual-mode capability), compliant with WAN; (3) WLAN Infrastructure Devices and WLAN Client Devices, compliant with WLAN, that support only dual-mode operation of one or more WLAN operations with one or more Bluetooth operations (dual-mode capability), compliant with Bluetooth; and/or (4) WLAN Infrastructure Devices, compliant with WLAN, that support only tri-mode operation of one or more WLAN operations with one or more WAN operations with one or more Bluetooth operations (tri-mode capability), compliant with WAN and Bluetooth. 1.31. "RF INTEGRATED CIRCUITS" OR "RF FRONT ENDS" shall mean integrated circuits capable of receiving, transmitting, modulating, and/or converting radio frequency signals and which, individually or collectively, perform the functionality of a radio within a wireless application. 1.32. "STATEMENT OF WORK" OR "SOW" shall mean a written agreement executed by and between the Parties hereunder contemplating a collaborative or joint development of an Interface for a Collaborative Chipset. 1.33. " TI DIGITAL BASEBAND PROCESSOR" means a semiconductor device designed by TI for the processing of digital signals in wireless applications. 1.34. "TI MANUFACTURING TECHNOLOGY" shall mean the know-how, knowledge and technology which, collectively, represents TI's CMOS and Bi-CMOS manufacturing process technology for RF Integrated Circuits, including, without limitation, the design rules and test programs, used in the production, assembly and testing of RF Integrated Circuits. 1.35. "WAFER" means a processed wafer that includes multiple Products which need to be separated, packaged and tested. 1.36. "WAFER PROBE TEST SPECIFICATION" means the quality specification setting forth the die size, wafer thickness and bond pad dimensions agreed upon between the Parties for any particular Product to be supplied by TI to ParkerVision in the form of Wafers, and any TI/PV Page 6 process control monitor circuitry parameters specifically agreed upon between the parties in writing with regard to any such Wafers. 1.37. "WLAN" shall mean a Wireless Local Area Network that is implemented according to and that operates within the following standards: IEEE 802.11a, IEEE 802.11b, HiperLAN1, HiperLAN2, and/or other similar standards presently existing or developed in the future. 1.38. "WLAN CLIENT DEVICE" means hand held computers, personal data assistants (PDAs), automatic identification data collection devices (such as bar code scanners/readers, electronic article surveillance readers, and radio frequency identification readers) and other similar user devices compliant with and implementing WLAN for wireless communications. 1.39. "WLAN INFRASTRUCTURE DEVICE" means access points and other similar devices, compliant with and implementing WLAN, and used to provide the ability for WLAN Client Devices to connect to a wired network and/or to provide the network functionality of a WLAN. 2. PURPOSE AND SCOPE OF THIS AGREEMENT ----------------------------------- 2.1 Subject to the terms and conditions set forth in this Agreement and the Foundry Business Plan to be developed hereunder, (1) both Parties desire to jointly develop Interface technology for Collaborative Chipsets in which ParkerVision's D2D RF Integrated Circuits and TI's digital baseband processors complement and fully exploit each other's performance capabilities, and (2) ParkerVision agrees to first design each Product using TI's design process rules, and TI shall manufacture RF Integrated Circuits designed by ParkerVision. 2.2 The strategic relationship intended under this Agreement will be sponsored, managed, reviewed and up-dated by a Management Team. The Management Team will comprise two representatives from each Party. Each Party reserves the right to replace its representative(s) on written notification to the other Party. 2.3 The Management Team will meet regularly but at least twice per year. The representatives of both Parties shall communicate between meetings as necessary. The charter of the Management Team shall include the following items: o Identification of wireless applications for which the Parties intend to develop Interface technology in accordance with a Statement of Work hereunder. o Review of Project status. o Development, periodic review, and revision of the Foundry Business Plan. TI/PV Page 7 o Review of Issues / Action items arising from the Parties' foundry relationship. 3. REFERENCE DESIGNS ----------------- 3.1 Either Party shall be free to develop Reference Designs based on either Party's semiconductor devices and the Interface technology to be developed hereunder. From time to time, the Parties may discuss and decide to jointly develop a Reference Design in accordance with the terms and conditions provided herein. However, unless expressly provided for in this Agreement or in a Statement of Work, nothing in this Agreement shall be construed as an obligation on either Party to supply semiconductor devices to the other Party or its customers, or to provide the other Party or its customers with any technical assistance in regards to the implementation of any such Reference Design, whether jointly developed hereunder or not. 3.2 In furtherance of the Parties' desire to promote their devices as part of Reference Designs, each Party hereby grants to the other Party the right, under the granting Party's tradenames and copyrights, (i) to refer to the granting Party, in sales or technical documentation pre-approved by the granting Party in writing, as the supplier of semiconductor devices that are included in the other Party's or a jointly developed Reference Design and (ii) to copy and distribute, but not modify, any technical or commercial documentation released by the granting Party to promote the use and sale of any such semiconductor device as part of the other Party's Reference Design. After the effective date of a Change of Control of ParkerVision (as defined in Section [16.5] below), the rights specified above under sub-section (i) shall be revoked, and the rights specified above under sub-section (ii) shall continue, except that each Party must remove the other Party's tradenames prior to distributing the granting Party's technical or commercial documentation described above. PART A: DEVELOPMENT OF INTERFACES FOR WIRELESS APPLICATIONS - ----------------------------------------------------------- 4. JOINT DEVELOPMENT WORK ---------------------- 4.1 After the execution of this Agreement, the Parties shall negotiate in good faith Statement of Works for collaborative efforts relating to WLAN 802.11B and CDMA. 4.2 For each Interface that the Parties decide to develop for a Collaborative Chipset hereunder, the Parties shall execute a written Statement of Work substantially in the form of the model Statement of Work attached hereto as Exhibit [A]. To be effective, each Statement of Work must be signed by both Management Team representatives of both Parties. Each Statement of Work shall set forth, at a minimum, the following technical and operational conditions: 4.2.1 Field of Use; TI/PV Page 8 4.2.2 Functions, specifications and parameters, including those applicable to the Field of Use, of the Interface; 4.2.3 Descriptions of the applicable Collaborative Product and Collaborative TI Digital Baseband Processor. Such descriptions shall be in terms of functionalityand applicable standards related to the Field of Use. It is understood that the Collaborative Product and the Collaborative TI Digital Baseband Processor are to be developed independently by ParkerVision and TI, respectively, and such independent development is outside the Project. 4.2.4 Milestones for the development work and the Point of No Return; 4.2.5 The Deliverables including, but not limited to, application notes and Interface technology to be provided by either Party to the other Party in the course of or at the conclusion of the Parties' performance of the Statement of Work; for each Deliverable the Statement of Work shall specify whether or not the Deliverable is or contains Independent Technology owned or otherwise possessed by the Party providing the Deliverable, subject to Section 5.3; 4.2.6 The procedures and data necessary for the testing and approval of the development work; and 4.2.7 An indication of whether or not the Statement of Work is directed to the Restricted Fields. 4.3 Collaborative Efforts In the Restricted Fields When collaborating in the Restricted Fields under a Statement of Work, ParkerVision shall be responsible for designing D2D Sub-Parts in any Product, and integrating RF Front Ends that include one or more D2D Sub-Parts that are designed for use in the Restricted Fields. 4.4 Termination of Development Work Either Party may terminate for its convenience a Statement of Work executed between the Parties at any time prior to the achievement of the milestone designated in the applicable Statement of Work as the Point of No Return by providing the other party with a ten (10) day prior written notice. The foregoing right to terminate a Statement of Work for convenience does not affect a Party's right to terminate a Statement of Work for cause such as the other Party's breach of this Agreement or for any other cause specified in this Agreement. A Party's termination of a Statement of Work for convenience or for cause shall not affect the validity of any other Statement of Work executed between the Parties unless such other Statement of Work is expressly terminated in the notice of termination. TI/PV Page 9 4.5 Cost of Development Work Unless otherwise expressly provided for in a Statement of Work, each Party shall bear all costs and expenses it may incur in preparation for, and in the performance of, the development work provided for in a Statement of Work. For the avoidance of any misunderstanding, and without limiting the generality of the preceding sentence, a party's obligation to bear its own costs and expenses shall include the costs and expenses associated with the disclosure of Independent Technology by either Party to the other Party pursuant to a Statement of Work. 5. OWNERSHIP OF INTELLECTUAL PROPERTY ---------------------------------- 5.1 REPRESENTATION. Each Party hereby represents to the other Party that it has, or will have prior to commencement of the development work contemplated in any Statement of Work, valid and sufficient agreements with its employees (which term shall include agents, consultants and subcontractors) such that ownership of rights of all technology including, without limitation, Interface technology developed pursuant to a Statement of Work hereunder, shall vest with the Party for which such development work is performed pursuant to the provisions of this Section [5]. 5.2 Rights in Project IP. 5.2.1 All Project IP developed and/or implemented by ParkerVision in the course of a Project without participation of TI's employees, agents, consultants or subcontractors, and without the use of TI Independent Technology, shall be the sole and exclusive property of ParkerVision and all Intellectual Property Rights therein or resulting therefrom shall be vested solely in ParkerVision. All such Project IP shall hereinafter be referred to as "ParkerVision Project IP". 5.2.2 All Project IP developed and/or implemented by TI in the course of a Project without participation of ParkerVision's employees, agents, consultants or subcontractors, and without the use of ParkerVision Independent Technology, shall be the sole and exclusive property of TI and all Intellectual Property Rights therein or resulting therefrom shall be vested solely in TI. All such Project IP shall hereinafter be referred to as "TI Project IP". 5.2.3 All Project IP jointly developed and/or implemented by TI and ParkerVision in the course of a Project (such Project IP shall hereinafter be referred to as "Joint Project IP," and also referred to as "Jointly Owned Project IP" in Exhibit C), shall be jointly owned by ParkerVision and TI with each Party owning an undivided, equal ownership interest in any such Joint Project IP and all Intellectual Property Rights therein or resulting therefrom shall be vested in ParkerVision and TI as joint and equal owners (except as noted in Exhibit C). Subject to any TI/PV Page 10 confidentiality restrictions which may apply, each Party shall be free to use such Joint Project IP to design, develop, make, have made, use, import, sell, offer to sell, or otherwise dispose of integrated circuits incorporating such Joint Project IP (except as noted in Exhibit C). In the event of patentable inventions jointly owned hereunder, the filing and the prosecution of patent applications as well as the maintenance of jointly owned patents shall be handled in accordance with the procedure set out in [Exhibit C] hereto. 5.2.4 Unless explicitly stated otherwise in writing in a Statement of Work, ParkerVision Project IP, TI Project IP, and Joint Project IP shall not individually or collectively include any of either Party's Independent Technology, or any Intellectual Property Rights relating thereto. 5.2.5 ParkerVision hereby grants to TI a non-exclusive, fully paid, royalty-free, worldwide license, with no right to sub-license other than to TI Affiliates, under ParkerVision's Intellectual Property Rights in ParkerVision Project IP only as related to Interface technology developed hereunder according to a Statement of Work whose Point of No Return was achieved prior to any termination of such Statement of Work, for the sole purpose to incorporate or otherwise implement the Interface developed under such Statement of Work in semiconductor devices made by or for TI. All rights not granted herein to TI are hereby reserved by ParkerVision. This license shall survive expiration or termination of this Agreement, unless this Agreement is terminated due to a material breach of TI. 5.2.6 Subject to the provisions of Section 6, TI hereby grants to ParkerVision a non-exclusive, fully paid, royalty-free, worldwide license, with no right to sub-license other than to ParkerVision Affiliates, under TI's Intellectual Property Rights in TI Project IP only as related to Interface technology developed hereunder according to a Statement of Work whose Point of No Return was achieved prior to any termination of such Statement of Work, for the sole purpose to incorporate or otherwise implement the Interface developed under such Statement of Work in semiconductor devices made by or for ParkerVision. All rights not granted herein to ParkerVision are hereby reserved by TI. This license shall survive expiration or termination of this Agreement, unless this Agreement is terminated due to a material breach of ParkerVision. 5.3 License to Use Independent Technology Each Party hereby grants to the other Party a non-exclusive, worldwide license, with no right to sub-license other than to each Parties' respective Affiliates, under its present or future Intellectual Property Rights in the Independent Technology provided by the granting Party to the receiving Party in the course of a Project, for the sole purpose to incorporate or otherwise implement the Interface developed under the applicable Statement of Work for the Project in semiconductor devices made by or for the other TI/PV Page 11 Party, provided that the Point of No Return for such applicable Statement of Work for the Project was achieved prior to any termination of such Statement of Work. The burden shall be on the receiving Party invoking such license to prove that the granting Party in fact disclosed such Independent Technology during the course of the Project to the receiving Party for the purpose of allowing the receiving Party to use such Independent Technology. To avoid any misunderstanding, this section does not grant any license of TI Independent Technology from TI to ParkerVision to design, develop, make, have made, use, import, offer to sell, sell or otherwise dispose of any TI Digital Baseband Processor. Similarly, this section does not grant any license of ParkerVision Independent Technology from ParkerVision to TI to design, develop, make, have made, use, import, offer to sell, sell or otherwise dispose of any ParkerVision Product (for purposes of this sentence only, the term "Product" includes Products capable of being manufactured using any manufacturing technology, and also includes Gallium Arsenide goods). The foregoing license shall be royalty-free unless (i) otherwise provided for in writing in the applicable Statement of Work or (ii) with respect to the disclosure of Independent Technology not specified in a Statement of Work hereunder, the Party intending to provide any such other Independent Technology provides the other Party with prior written notice that the use of such Independent Technology shall be royalty bearing. A Party having received such notice shall be entitled to evaluate the Independent Technology specified in the notice for a reasonable period of time, and, subject to the outcome of such evaluation, both Parties shall negotiate in good faith a mutually acceptable royalty rate for the receiving Party's use of any such Independent Technology under the license granted above. This license grant to ParkerVision shall survive expiration or termination of this Agreement, unless this Agreement is terminated due to a material breach of ParkerVision. Similarly, this license grant to TI shall survive expiration or termination of this Agreement, unless this Agreement is terminated due to a material breach of TI. 5.4 Limited Covenant Against Injunctive Relief and Enhanced Damages 5.4.1 Subject to the exclusions of Section 5.4.4, ParkerVision covenants that: 5.4.1.1 No injunction, temporary restraining order, preliminary injunction, or other enforceable order enjoining conduct shall be effective during the Safe Harbor Period (as defined in Section 5.4.2) as to ParkerVision's Intellectual Property Rights relating to Integrated Circuit Technology against TI or TI Customers based on a claim that a product designed and made by or for TI (or any derivative thereof) infringes such ParkerVision Intellectual Property Rights ("Safe Harbor Product"). For the purposes of this Section 5.4, a "TI Customer" is a third party who directly or indirectly purchases products made by TI, where such TI/PV Page 12 products are designed substantially by TI, and shall include OEMs and users of products that include any such Safe Harbor Products, while the term "Integrated Circuit Technology" shall include all technology used in the design, manufacture, sale and marketing of integrated circuits including, without limitation, discrete devices, modules (i.e., more than one integrated circuit contained in a single package), chipsets, assemblies (i.e., packaged integrated circuits mounted on a single substrate), design tools, software controlling the functionality of any such integrated circuits, and reference designs specifying the use of any such items in any given application. "Integrated Circuit Technology" shall not include ParkerVision's Intellectual Property Rights relating to video camera control and/or production studio automation when directed to the system level, end-user level, or methods of use relating to same. 5.4.1.2 Neither an act nor an omission by TI or TI Customers related to Safe Harbor Products which, directly or indirectly, infringes ParkerVision's Intellectual Property Rights shall give rise to damages exceeding a reasonable royalty rate. All other damages including, without limitation, punitive damages, consequential or treble damages shall be excluded. 5.4.2 Term of Covenant. For each infringement of a ParkerVision Intellectual Property Right alleged in a notice of infringement issued by ParkerVision to TI, the foregoing covenant of Section 5.4.1 shall be effective for a period of five (5) years following TI's receipt of such notice (the "Safe Harbor Period"), except that this covenant shall not apply to any ParkerVision patent claim beyond the five (5) year period triggered by the notice of infringement in which such patent claim is first asserted by ParkerVision. In the event that the discontinuation of an allegedly infringing product would create a materially adverse effect on TI's relationship with a TI customer, TI and ParkerVision shall negotiate in good faith an extension of the Safe Harbor Period. 5.4.3 No Waiver. ParkerVision's compliance with the covenant of Section 5.4.1 shall not be deemed a waiver, by laches, estoppel or otherwise, to sue or otherwise assert a claim against TI or TI Customers before or after the expiration of the Safe Harbor Period. Likewise, TI's failure to bring an action to invalidate or render unenforceable ParkerVision's Intellectual Property Rights before or after the receipt of a notice of infringement issued by PV, shall not be deemed a waiver, by laches, estoppel or otherwise, to sue or otherwise assert a claim challenging the validity or unenforceability of any ParkerVision Intellectual Property Rights. 5.4.4 The covenant of Section 5.4.1 shall not apply: 5.4.4.1 To allegedly infringing products (or any derivative thereof) which TI sells to a New Customer. For the purpose of this exception, a "New Customer" shall TI/PV Page 13 be deemed a third party who has not declared in writing its intent to use the allegedly infringing product (or any derivative thereof) in their application ("design-in") within a period of eighteen (18) months following TI's receipt of ParkerVision's notice of infringement. 5.4.4.2 If, during the Safe Harbor Period, TI files an action challenging the validity or enforceability of the Intellectual Property Right which ParkerVision claims to be infringed by TI, unless such action by TI is in defense to court action initiated by ParkerVision to seek royalties or (other) monetary damages for such alleged infringement or in defense to a claim for injunctive relief. 5.4.4.3 Down-Converter. To subject matter that satisfies the following requirements: (1) the subject matter represents a sub-harmonic sampling RF down-converter with a fixed control signal aperture; and (2) the subject matter implements one or more of the complete schematics shown in Exhibit J with or without minor variations (for the avoidance of doubt, changes in circuit topology, changes in circuit components, and changes in the functionality of circuit components shall NOT be considered minor variations), or circuits that implement one or more of such schematics in their entireties, where such schematic(s) is/are used for the down-conversion function; and (3) the subject matter exhibits a continuous percentage discharge of the output signal by use of a shunt resistor (As shown in Exhibit K) that is greater than or equal to six percent (6%) and less than or equal to fifty percent (50%); and (4) the subject matter achieves a recursive output filtering effect where by use of a series capacitor connected to the input signal, shunt switch, a shunt passive resistor connected to bias for both outputs the current output value depends on the previous output values stored on the series capacitor. 5.4.4.2 Up-Converter. To subject matter that satisfies the following requirements: (1) the subject matter represents a gating RF wireless carrier based communication sub-harmonic up-converter and modulator for use at carrier frequency above 500Mhz with a non-dynamic fixed signal aperture; and TI/PV Page 14 (2) the subject matter implements one or more of the complete schematics shown in Exhibit L with or without minor variations (for the avoidance of doubt, changes in circuit topology, changes in circuit components, and changes in the functionality of circuit components shall NOT be considered minor variations), or circuits that contain one or more of such schematics in their entireties, where such schematic(s) is/are used for the sub-harmonic up-conversion and modulation function (Exhibit L also shows a schematic of an exemplary digital aperture generator circuit); and (3) the subject matter converts an analog amplitude varying input waveform (as shown in Exhibit M), where the amplitude variation represents the desired carrier wave modulation, into a series of pulses defined by a controlled aperture gating function to simultaneously control the output amplitude response, frequency response, and output impedance to provide frequency up-conversion and modulation in a single operation; and (4) the subject matter exhibits non-dynamic signal aperture sub-harmonic up-conversion and modulation with power control by use of a fixed bias control; and (5) the subject matter excludes circuits that modify the aperture time period for the purpose of modulation such as Pulse Width Modulation Circuits. 5.4.5 Whether or not the covenant of Section 5.4.1 applies, if ParkerVision files a claim in a court against TI or TI Customers based on a claim that a product designed and made by or for TI (or any derivative thereof) infringes ParkerVision Intellectual Property Rights, then TI has the right to terminate the foundry relationship with ParkerVision with immediate effect by providing ParkerVision with written notice of its decision to terminate the relationship. 5.4.6 Nothing in this Agreement shall be deemed to be an admission on the part of ParkerVision or TI as to the validity, enforceability, or scope of their respective Intellectual Property Rights. It shall not be a breach of this Agreement if TI makes, has made, uses, sells, or offers to sell a product that infringes a ParkerVision Intellectual Property Right. Internal documentation generated and distributed internally by TI for purposes of implementing Sections 5.4.4.3 and 5.4.4.4 shall not be deemed to be an admission by TI that TI is infringing a ParkerVision Intellectual Property Right. TI/PV Page 15 5.4.7. The covenant provided for in this Section 5.4 shall be binding on ParkerVision and its Affiliates and their respective successors and assigns, and ParkerVision and its Affiliates shall cause any third party acquiring an interest in PakerVision's Intellectual Property Rights which would allow any such third party to assert Intellectual Property Rights affected by this covenant against TI to be bound by same in the same manner as ParkerVision and its Affiliates. 5.5 Except as otherwise specified above in this Section 5, or as otherwise specified elsewhere in this Agreement, ParkerVision and TI respectively retain all of their rights and remedies as to their respective Intellectual Property Rights. PART B: MANUFACTURE AND SUPPLY OF PRODUCTS - ------------------------------------------ 6. FOUNDRY RELATIONSHIP -------------------- 6.1 During the Foundry Period, TI hereby agrees to manufacture for ParkerVision its Products (including Products in Wafers) on a non-exclusive basis using the TI Manufacturing Technology, consistent with TI's standard internal practices, in accordance with the Foundry Business Plan to be developed and revised by the Management Team in accordance with Section [7] below. During the Foundry Period, except for Products based on Gallium Arsenide instead of silicon (see below), ParkerVision agrees to first design each Product using TI's design process rules. ParkerVision agrees to port to TI's design rules its PV1000x 802.11b RF integrated circuits and its CDMA RF integrated circuits (both of which are under development at the time of the execution of this Agreement) by December 31, 2001. As for Products based on Gallium Arsenide, upon notification by TI that a TI Gallium Arsenide device manufactured by TI is qualified for volume production by a TI customer, and subject to any contractual obligations of ParkerVision at the time of such notification, and as long as the foundry relationship between the Parties exists, ParkerVision shall after such notification first design each new Gallium Arsenide Product using TI's design process rules, provided that the price, lead-times, and performance of the TI process matches or exceeds that of ParkerVision's existing Gallium Arsenide manufacturer for substantially similar Products. 6.2 The foundry relationship between the Parties as described herein shall exist during the Foundry Period, which shall begin on the Effective Date of this Agreement, and shall end three (3) years after TI has shipped the first five hundred thousand (500,000) Products. 6.3 The Parties may mutually agree to continue said foundry relationship for successive terms of length to be mutually agreed, provided that such agreement is made in a writing executed TI/PV Page 16 by both Parties no later than six (6) months prior to the expiration of the initial Foundry Period or each subsequent term. 6.4 In the event that either Party decides not to extend the foundry relationship pursuant to Section [6.3], or if this Agreement should expire or terminate for any reason other than a material breach by ParkerVision or pursuant to Section 5.4.5, TI shall continue to manufacture and supply ParkerVision with Product that TI had started to manufacture for ParkerVision prior to such expiration or termination, and TI shall continue to use Commercially Reasonable Efforts to quote competitive Product pricing and the Quoted Lead-Times. However, subject to Section [12] below, for any such Product, TI's foregoing obligation shall terminate as soon as TI discontinues the TI Manufacturing Process used in the manufacture of such Product. 6.5 MARKING REQUIREMENTS AND LIMITED TRADEMARK LICENSE. As space allows, TI shall include the ParkerVision Trademarks on all Products and Collaborative Products manufactured by TI as specified herein. ParkerVision hereby grants to TI a limited world-wide, non-exclusive, royalty free right to the ParkerVision Trademarks to the extent required by TI to comply with the requirements of this Section [6.6]. TI shall not use the ParkerVision Trademarks except as expressly stated in this Agreement. All rights in and to the ParkerVision Trademarks not specifically granted to TI by this Agreement are reserved to ParkerVision for ParkerVision's own use and benefit. The Parties agree to comply with the additional trademark provisions contained in Exhibit G. 7. Foundry Business Plan --------------------- 7.1 A three (3) year rolling business plan specifying TI and TI Manufacturing Technology to be used in the manufacture of Products (the "Foundry Business Plan") will be developed, reviewed, and potentially revised every three (3) months by the Management Team. For the manufacture of Products, TI shall make available TI Manufacturing Technologies that are generally stable, or other TI Manufacturing Technologies that the Parties mutually agree for strategic reasons. Factors for indicating whether a particular TI Manufacturing Technology is generally stable include but are not limited to whether TI makes such TI Manufacturing Technology generally available to third parties for the production of integrated circuits substantially similar in complexity to the Products. In light of such factors (as well as other relevant factors), the Management Team shall determine in good faith whether a particular TI Manufacturing Technology shall be used for the manufacture of any given ParkerVision Product. Without limiting the generality of the foregoing, the Management Team shall consider at least the TI Manufacturing Technologies listed in Exhibit [B] for the manufacture of ParkerVision Products. 7.2 For each TI manufacturing process to be used in the manufacture of ParkerVision Products, the Foundry Business Plan shall specify the design tools that TI shall make available to ParkerVision to allow ParkerVision to design/redesign Products for TI/PV Page 17 manufacture by TI. All such design tools shall be made available to ParkerVision at TI's standard rate for such tools. In the absence of a published price or a reference price charged to other TI foundry customers for identical or substantially similar design tools, the rate at which said design tools shall be made available to ParkerVision shall comprehend all costs associated with the development or procurement of said tools plus a margin which is in line with TI's average gross profit margin on foundry products. 7.3 The Foundry Business Plan shall include specific Product pricing and price reduction goals for each Product that ParkerVision designs for manufacture by TI according to Section 6. Product pricing shall be for processed wafers, good electrical and mechanical die and/or for packaged and tested Products, as specified in the Foundry Business Plan. In addition, the Foundry Business Plan shall specify the Quoted Lead-Times for such Products. TI shall also provide ParkerVision with quotes on available TI packaging services, and ParkerVision shall be allowed at its option to use such services. Such quotes will be committed by TI for a period of six (6) months. An example of such quotes is provided in Exhibit F. The Quoted Lead-Times quoted by TI for a given TI Manufacturing Technology shall be generally comparable over a representative period of time to lead-times quoted by TI to other customers for similar volumes manufactured using the same TI Manufacturing Technology, and supplied to such other customers under substantially similar terms and conditions. The Foundry Business Plan may contain other terms that are mutually agreed upon by the Parties. 7.4 The Product Specification and the Wafer Probe Test Specification for each Product will be mutually agreed upon and included in the Foundry Business Plan. 8. VOLUMES FORECASTS ----------------- Within thirty (30) days following the qualification of ParkerVision's first Product by a ParkerVision customer, ParkerVision shall provide TI with a one (1) year rolling forecast specifying for each quarter ParkerVision's volume requirements of Products which ParkerVisions intends to offer to its customers in commercial volumes. The forecast is to be revised, updated and reconfirmed every three (3) months by ParkerVision and TI during the fifth (5th) week of the first quarter of the rolling forecast for purchase requirement for the next three (3) quarters. Orders to be placed for the first quarter of the rolling forecast shall be considered firm and accepted for committed volumes; orders to to be placed for the second and third quarters may increase or decrease by as much as fifty percent (50%) from those in the forecast; while orders to be placed for the fourth quarter may decrease by one hundred percent (100%) and may increase or decrease by any amount from those in the forecast. TI/PV Page 18 9. PURCHASE ORDERS, ACCEPTANCE AND PERFORMANCE ------------------------------------------- 9.1 This Agreement does not constitute a purchase order. For all purchases of Products, ParkerVision shall place a written purchase order based on the prices and Quoted Lead-Times agreed upon in the Foundry Business Plan (or any amendments thereto). Each purchase order issued by ParkerVision shall specify: (i) a purchase order number and date, (ii) quantity of Product to be delivered, (iii) Product part number, (iv) Product description, (v) Product unit price, (vi) Requested Delivery Date, (vii) shipping instructions, including carrier and delivery address. 9.2 Subject to the following, TI shall use Commercially Reasonable Efforts to accept all purchase orders issued pursuant to and in conformance with the terms of this Agreement, the Foundry Business Plan and the volume forecast, and will accept such purchase orders in a manner that will not substantially deviate from TI's acceptance of the purchase orders from other customers for similar volumes manufactured using the same TI Manufacturing Technology. Within five (5) business days after TI receives ParkerVision's purchase order, TI shall provide to ParkerVision a written Estimated Ship Date for the Product requested pursuant to such purchase order. TI shall use Commercially Reasonable Efforts to comply with applicable Quoted Lead-Times from the Foundry Business Plan. If TI cannot commit to an Estimated Ship Date that satisfies ParkerVision's Requested Delivery Date, TI shall propose, an alternative Estimated Ship Date. ParkerVision shall notify TI in writing of its acceptance or rejection of such alternative Estimated Ship Date within (5) business days after receipt of the alternative Estimated Ship Date. If TI does not receive such notification from ParkerVision, ParkerVision shall be deemed to have accepted such alternative Estimated Ship Date. Any purchase order placed by ParkerVision prior to the termination of this Agreement in which the Estimated Ship Date will be after the termination of this Agreement shall continue to be governed by the terms and conditions of this Agreement. 10. PURCHASES SUBJECT TO TI'S STANDARD TERMS AND CONDITIONS FOR SALES. ------------------------------------------------------------------ All purchases by ParkerVision of Products supplied by TI shall be subject to TI's Standard Terms and Conditions for Sales of Semiconductor Products in the version current at the time of such purchases, provided, however, that in the event of a conflict between this Agreement, a Statement of Work, a purchase order, or the Foundry Business Plan and said Standard Terms and Conditions, the provisions of this Agreement, the Statement of Work, the purchase order, or the Foundry Business Plan, as applicable, shall prevail. This Agreement shall not be considered void for lack of a specified quantity term under the Uniform Commercial Code. A copy of TI's Standard Terms and Conditions for Sales of Semiconductor Products in effect at the time of execution of this Agreement is attached as Exhibit I. Without limiting the generality of the foregoing, at least Sections 8, 9, 10, 11, 12, 13, 16, and 17 from Exhibit I (and from corresponding sections in subsequent versions of that document) are replaced by corresponding provisions in this Agreement, a Statement of Work, a purchase order, or the Foundry Business Plan. TI/PV Page 19 11. PRODUCT SPECIFICATION CHANGE PROCESS. ------------------------------------- Upon receipt of a written request by ParkerVision, TI shall, within fifteen (15) business days, submit to ParkerVision a written summary of estimated adjustments or costs, if any, reasonably required to implement a modification to the Product Specification, Product Design Database, Wafer Probe Test Specification, or other change relating to a Product requested by ParkerVision. Such summary shall include the change, if any, to: (i) the unit price for Products affected by the requested changes, (ii) any applicable Product delivery dates; and (ii) the Product NRE (non-recurring engineering charges). Written approval from ParkerVision must be received by TI prior to implementation of such changes, and will be referenced as an Amendment to this Agreement. If TI does not receive such written approval from ParkerVision within fifteen (15) calendar days after TI submits a summary to ParkerVision, ParkerVision shall have been deemed to have withdrawn such request for change to the Product Specification. 12. PRODUCT DISCONTINUATION AND LIFE-TIME BUY. ------------------------------------------ 12.1 TI may discontinue the manufacture of a Product with six (6) months prior written notice to ParkerVision. Upon receipt of such notice from TI, ParkerVision may submit Life-Time Buy purchase orders. ParkerVision must place a single Life-Time buy order within sixty (60) days of receipt of such notice. Delivery of the discontinued Product shall be made in substantially equal monthly installments (or other increment to be mutually agreed upon) throughout the remainder of the six (6) month period following such notice, and a subsequent period of six (6) months. 12.2 During the Foundry Period, TI shall offer an alternate TI Manufacturing Technology for the production of the affected Products soon after providing such notice. ParkerVision may transfer the affected Products to the alternate TI Manufacturing Technology. ParkerVision has the option of transferring such affected Products to a Competitor Foundry, and ParkerVision shall have the option to take delivery of all technical information relating to the affected Products and, only to the extent strictly necessary for a fabless semiconductor company for purposes of transferring a discontinued Product to another manufacturing process, the technical information related to the manufacturing process used in the manufacture of the discontinued product, provided, however, that ParkerVision's right to use such technical information shall be strictly limited to port the affected Products to the Competitor Foundry. 13. DELIVERY, SHIPMENTS, INVOICES AND PAYMENTS. ------------------------------------------- 13.1 FREIGHT AND TAX CHARGES. Prices set forth in the Foundry Business Plan, in a purchase order or TI's acceptance of a purchase order do not include freight charges or taxes. ParkerVision shall be liable to TI for such sales, use, or like taxes actually charged if TI/PV Page 20 ParkerVision has failed to comply with applicable statutory resale tax certificate requirement(s). ParkerVision shall provide to TI a resale certificate upon TI's request. 13.2 TITLE AND TRANSPORTATION. All shipments of Product to ParkerVision shall be F. O. B. point of shipment. Title and risk of loss or damage shall pass to ParkerVision upon TI's tender of delivery of the Products to a carrier at shipping point. Packing and shipping instructions shall be set out in ParkerVision's purchase order. Absent any such instructions from ParkerVision specifying the method of shipment, TI will use the means of shipment which should permit on-time delivery of Product to ParkerVision. 13.3 EARLY SHIPMENTS. If TI delivers Product more than five (5) calendar days in advance of the scheduled Estimated Ship Date, ParkerVision may postpone payment until such time payment would have been due if TI had delivered Product as scheduled. 13.4 INVOICES. Invoices shall reference the number of ParkerVision's purchase order and the bill of landing. All invoices shall be sent to the following address: ParkerVision, Inc. 8493 Baymeadows Way Jacksonville, Florida 32256 Attention: Accounting Department ParkerVision's payment of invoice shall not constitute acceptance of Products. All invoices may be subject to adjustments for errors, shortages, or defects in Products. 13.5 PAYMENT TERMS. Payment of invoices for Products delivered to ParkerVision shall be net ninety (90) days upon receipt by ParkerVision of each invoice issued by TI. Payments shall be made in US dollars. 13.6 SALES AND USE TAX EXEMPTION. It is hereby certified that the Products purchased hereunder are exempt from the sales and use tax, unless otherwise noted for the reason that Products are purchased for resale or will become an ingredient or component part of, or be incorporated into, or used or consumed in a manufactured product produced for ultimate sale at retail. If the goods are purchased tax exempt and subsequent use makes the goods taxable, ParkerVision will assess and pay tax to the appropriate state. 14. INSPECTION AND ACCEPTANCE. -------------------------- ParkerVision or, in the event of direct shipments, ParkerVision's customers shall perform incoming inspection of Product within fifteen (15) calendar days of receipt of Product. Inspection may be performed at ParkerVision's option on a statistical sampling basis. The entire lot may be rejected based on defects revealed by such sampling. At ParkerVision's option, the rejected lot TI/PV Page 21 will be either returned to TI at TI's cost for replacement or credit or 100% screened by ParkerVision with cost of screening paid by TI. The initial inspection performed at ParkerVision on receipt of material is a conditional acceptance, and shall not waive the right of ParkerVision to return material to TI which exhibits or develops defects during the warranty period defined in Section [15.] below. 15. PRODUCT WARRANTY. ----------------- 15.1 WARRANTY FOR PRODUCT. Within one (1) year after delivery to ParkerVision, ParkerVision may return assembled and tested Product ("Finished Product") that ParkerVision can demonstrate fails to conform to the Product Specification and/or the agreed upon test programs. Additionally, within the earlier of (i) thirty (30) days after delivery to ParkerVision or (ii) the date the wafer in question is processed, ParkerVision may return any Wafers that ParkerVision can demonstrate fails to conform to the applicable Wafer Probe Test Specification. 15.2 All noncompliant Product returned to TI may be either, at TI's option, replaced within current Quoted Lead-Time for such Product, or credit issued by TI; except that Lifetime Buy shipments may be returned by ParkerVision for credit only. TI shall authorize return of nonconforming Product within seventy-two (72) hours of TI's receipt of ParkerVision's notification. 15.3 TEST DATA. For Finished Product, TI will make process control data, inspection and test reports covering the articles or goods and their parts available for review and subject to examination by ParkerVision or its authorized representatives to verify conformance to such applicable specifications and drawings. However, a certificate of conformance must accompany individual shipments when so specified on applicable drawings, or on the applicable purchase order. Any Finished Product not accepted by ParkerVision may be returned to TI at TI's expense for full credit of the purchase price. Inspection may be performed at ParkerVision's option on a statistical sampling basis. The entire lot may be rejected based on defects revealed by such sampling. At ParkerVision's option, the rejected lot will be either returned to TI for replacement or credit, or 100% screened by ParkerVision with cost of screening paid by TI. The initial inspection performed at ParkerVision on receipt of material is a conditional acceptance, and shall not waive the right of ParkerVision to return material to TI which exhibits or develops defects due to latent causes during or after installation or testing of the end product. 15.4 WARRANTY DOCUMENTATION. TI shall preserve all special drawings, dies, patterns, tooling or other items supplied or paid for by ParkerVision in good condition; and TI/PV Page 22 they are the property of ParkerVision and shall be considered to be ParkerVision Confidential Information unless otherwise specified, and the same such items shall be returned in good condition when the work on the order has been completed or terminated, or at any other time as requested by ParkerVision. No special drawing, die, pattern, tool or other item supplied by ParkerVision or made by TI for the use of or delivery to ParkerVision, or for use by TI in supplying ParkerVision, shall be used by TI for any purpose other than supplying ParkerVision, without TI first obtaining the written consent of ParkerVision thereto. TI shall not attempt to reverse engineer any drawing, die, pattern, tool, database file, computer file, integrated circuit, or other item supplied by ParkerVision to TI unless any of the aforementioned activities is necessary or useful for purposes of TI's performance under Section 16.2 of this Agreement. If material, equipment, special drawings, dies, patterns, or other goods are furnished by ParkerVision for performance of a purchase order, all risk of loss thereof or damage thereto shall be upon TI from the time of shipment to TI until redelivery to and receipt by ParkerVision. 15.5 NO ADDITIONAL WARRANTIES. EXCEPT FOR THE EXPRESS WARRANTIES STATED IN THIS AGREEMENT, TI MAKES NO ADDITIONAL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO, ANY WARRANTY FOR UNFINISHED PRODUCTS, IMPLIED CONDITIONS OR WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR ANY OTHER WARRANTY OBLIGATION ON THE PART OF TI. PARKERVISION'S REMEDIES SHALL BE LIMITED TO THE REMEDIES SPECIFIED HEREIN. 16. CHANGE OF CONTROL ----------------- 16.1. Upon a Change of Control of ParkerVision: (a) ParkerVision shall continue to perform under any written supply agreements involving supply of Collaborative Products that were executed by ParkerVision prior to such Change of Control, although failure to so perform shall not be considered to be a breach of this Agreement except as to Section 16.2 ; and (b) the Parties shall continue to perform under any Statement of Work that was executed by the Parties prior to such Change of Control. 16.2 In the event that, (i) following a Change of Control of ParkerVision, the Acquiring Party does not provide TI within ten (10) days after the effective date of the Change of Control with a written and binding assurance in the form of Exhibit H that it will cause TI/PV Page 23 ParkerVision to comply with Section 16.1(a) and 16.1(b) as to a Statement of Work whose Point of No Return was satisfied prior to the Change of Control of ParkerVision, or (ii) following the Change of Control, ParkerVision does not satisfy Section 16.1(a) and 16.1(b) as to a Statement of Work whose Point of No Return was satisfied prior to the Change of Control of ParkerVision, then TI shall provide ParkerVision with written notice specifying the Acquiring Party's non-compliance or ParkerVision's breach, as the case may be. ParkerVision shall have twenty (20) days from receipt of such notice to cause the Acquiring Party to comply with (i), or to cure ParkerVision's breach, as the case may be. If by the end of such cure period the written letter of assurance is not received by TI from the Acquiring Party, or if ParkerVision has not cured the breach by the end of such cure period, then ParkerVision shall pay to TI liquidated damages in the amount of two hundred thousand dollars ($200,000) for each Statement of Work whose Point of No Return was satisfied prior to the Change of Control of ParkerVision, and ParkerVision must provide to TI all technical documents relating to the applicable Collaborative Chipset, and ParkerVision and TI shall collaborate such that TI may, under a non-exclusive, worldwide license (with no right to sub-license other than to TI Affiliates) under ParkerVision's current and future Intellectual Property Rights: (a) in the case of non-satisfaction of Section 16.1(b), if the Collaborative Chipset is not completed prior to such Change of Control, then complete such Collaborative Chipset in conformity with the Statement of Work, provided that TI completes the Collaborative Chipset within one (1) year after the expiration of the above twenty (20) day cure period ; (b) manufacture and sell Collaborative Products (packaged and tested) for two (2) years commencing on the latter of (i) the expiration of the above twenty (20) day cure period, or (ii) once the Collaborative Product is complete pursuant to Section 16.2(a), provided that all such Collaborative Products are sold as part of a Collaborative Chipset, and in the event that TI elects to so manufacture and sell such Collaborative Products, then ParkerVision shall pay to TI an additional one-time liquidated damages amount of two hundred thousand dollars ($200,000); and (c) modify all Collaborative Products during the two (2) year period of Section 16.2(b), provided that such modification changes no more than thirty percent (30%) of the transistors in the Collaborative Product and the modified Collaborative Products are in conformance with any Statement of Work whose Point of No Return was satisfied prior to the Change of Control of ParkerVision. After the expiration of the two (2) year period of Section 16.2(b), the licenses granted to TI by ParkerVision in this Section 16.2 shall be revoked. TI/PV Page 24 The remedies and liabilities provided for in this Section 16.2 represent ParkerVision's complete and total liability to TI for any non-compliance or breach under Sections 16.2(i) and 16.2(ii). 16.3 REVENUE SHARING. For each D2D Sub-Part (that may include modifications made by TI pursuant to Section 16.2(c) in each Collaborative Product sold by TI or a TI Affiliate to a third party other than ParkerVision or a ParkerVision Affiliate, TI shall pay ParkerVision a per unit share to be calculated in accordance with the formula provided in Exhibit [D] hereto. 16.4 REPORTS AND AUDITS. Within forty-five (45) days after the end of each calendar quarter, TI shall pay ParkerVision all per unit shares which accrued to ParkerVision pursuant to this Section [16] during such quarter. Each such payment shall be accompanied by a report setting forth (a) the customer name, contact information, and model number with respect to each Product sold and (b) the total number of Product sold during such quarter. TI shall keep detailed records of its sale or its Affiliates' sale of Products for a period of three (3) years after the date on which such Products are distributed. ParkerVision shall have the right to audit such records once every six (6) months, upon reasonable prior written notice to TI. In addition to any underpayments or related late charges revealed by such audit, TI shall pay for the cost of any audit which reveals an underpayment of more than five percent (5%) for any quarter audited. 16.5 DEFINITION A "Change of Control" of a Party shall be deemed to have occurred in the event that, and is effective on the date that: (i) a third party (other than Jeff Parker, Stacie Parker Wilf, and/or Todd Parker, individually or in any combination, in the case of ParkerVision) becomes the owner of or takes control of, directly or indirectly, by merger or otherwise, beneficially or of record, voting securities representing fifty percent (50%) or more of the total voting power of such Party or such Party's successor ("Controlling Interest"), or (ii) such Party transfers all or substantially all of its assets belonging to such Party's RF or semiconductor business unit to a third party. 16.6. POSSIBLE ADDITIONAL LICENSE TO TI. After a Change of Control of ParkerVision, if ParkerVision or the Acquiring Party grants a non-exclusive license of ParkerVision D2D technology to a third party within five (5) years after such Change of Control, then ParkerVision or the Acquiring Party shall offer the same non-exclusive license under the same terms and conditions to TI. In the event that, after the Effective Date of this Agreement, ParkerVision assigns all or any of its rights in D2D to a third party, in accordance with Section 23.7, ParkerVision shall cause such third party to comply with this Section 16.6. 16.7. QUALITY CONTROL. The quality of Collaborative Products sold by TI according to Section 16.2(b) shall conform to the reasonable quality standards of ParkerVision as it may issue TI/PV Page 25 from time to time; and are of a standard consistent with the prestige and reputation which the ParkerVision Trademarks have heretofore developed or develop in the future. PART C: GENERAL PROVISIONS - -------------------------- 17. REPRESENTATIONS & WARRANTIES ---------------------------- ParkerVision and TI each represents and warrants to the other Party that: 17.1. DUE AUTHORIZATION. It has the requisite corporate power, authority and legal right to execute and deliver this Agreement and to perform each and every of its obligations hereunder and to consummate the transactions contemplated hereby. The execution, delivery and performance of this Agreement has been duly authorized by all necessary corporate and, if applicable, shareholder action. 17.2. NO CONFLICT. The execution, delivery and performance of this Agreement does not and will not violate, conflict with or result in the breach of any term, condition or provision of its Articles of Incorporation or By-Laws (or their equivalent) nor any term, condition or provision of any contract, agreement, document, commitment, undertaking or understanding between it and any other person, or entity. 17.3 NO OTHER PARTY OPTIONS. There are no existing agreements, options, commitments, entitlements or rights of any person to obtain from the Party giving the representation, directly or indirectly, any rights, obligations, grants, or licenses inconsistent with those of the other Party covered by this Agreement. 17.4 The representations and warranties of each Party contained in this Agreement shall have been true in all material respects as of the date hereof. Each Party undertakes to make all commercially reasonable efforts to ensure that the above representations and warranties remain true in all material respects throughout the term of this Agreement. In the event that a Party is unable to comply with the foregoing undertaking it shall notify the other party thereof without undue delay, whereupon the other Party shall have the right to terminate this Agreement by providing the Party which is no longer in compliance with thirty (30) days prior written notice. 18. INFRINGEMENT OF THIRD PARTY INTELLECTUAL PROPERTY. -------------------------------------------------- 18.1. TI'S INDEMNITY TO PARKERVISION. TI shall defend any claim, suit or other proceeding brought against ParkerVision insofar as the proceeding is based on a TI/PV Page 26 claim that TI Manufacturing Technology used in the manufacture of Products supplied by TI to ParkerVision infringes a third party's Intellectual Property Rights, or a claim that ParkerVision indirectly infringes a third party's Intellectual Property Rights based on a claim that a Collaborative TI Digital Baseband Processor sold by TI directly infringes such third party's Intellectual Property Rights, and TI shall pay all damages and costs finally awarded therein against ParkerVision, provided that TI is promptly informed and furnished a copy of each communication, notice or other action relating to the alleged infringement and is given authority, information and assistance necessary to defend or settle the proceeding. TI shall not be obligated to defend or be liable for ParkerVision's costs and damages if the infringement arises due to the design of a Product, Project IP including without limitation Interface technology,and/or a combination with, an addition to, or a modification of the Products by ParkerVision after delivery by TI. 18.2 PARKERVISION'S INDEMNITY TO TI. (a) ParkerVision shall defend any claim, suit or other proceeding brought against TI insofar as the proceeding is based on a claim that Products made by TI for ParkerVision infringes a third party's Intellectual Property Rights, or a claim that TI indirectly infringes a third party's Intellectual Property Rights based on a claim that a Collaborative Product sold by ParkerVision directly infringes such third party's Intellectual Property Rights, and ParkerVision shall pay all damages and costs finally awarded therein against TI, provided that ParkerVision is promptly informed and furnished a copy of each communication, notice or other action relating to the alleged infringement and is given authority, information and assistance necessary to defend or settle the proceeding. ParkerVision shall not be obligated to defend or be liable for TI's costs and damages if the infringement arises from a TI Digital Baseband Processor, Project IP including without limitation Interface technology, and/or a combination with, an addition to, or a modification of the Products by TI, or if the infringement arises from the use of TI Manufacturing Technology. ParkerVision shall defend any claim, suit or other proceeding brought against TI insofar as the proceeding is based on a claim that Collaborative Products sold by TI into the open market in accordance with Section 16.2(b) directly infringes a third party's Intellectual Property Rights, and ParkerVision shall pay all damages and costs finally awarded therein against TI, provided that ParkerVision is promptly informed and furnished a copy of each communication, notice or other action relating to the alleged infringement and is given authority, information and assistance necessary to defend or settle the proceeding. ParkerVision shall not be obligated to defend or be liable for TI's costs and damages if the infringement TI/PV Page 27 arises from a TI Digital Baseband Processor, Project IP including without limitation Interface technology, and/or a combination with, an addition to, or a modification of the Products by TI, or if the infringement arises from the use of TI Manufacturing Technology. 18.3. ACTUAL AND ALLEGED INFRINGEMENT. 18.3.1 TI INDEMNIFICATION. If TI Manufacturing Technology used in the manufacture of the Products supplied by TI to ParkerVision hereunder shall be held to infringe Intellectual Property Rights and ParkerVision shall be enjoined from using or reselling same because of such infringement, or if TI discontinues shipment of such Product after a third party has filed suit in a court alleging such infringement, then TI will exert all Commercially Reasonable Efforts, at its option and at its expense, to: (a) procure for ParkerVision the right to use, sell, resell and otherwise market such Products free of any liability for infringement of such Intellectual Property Rights, or (b) replace such Products with non-infringing substitute products otherwise complying substantially with all requirements of this contract, or (c) refund the purchase price and the transportation costs of infringing Products returned to TI. TI shall not be obligated for any of the foregoing remedies if the infringement arises due to the design of a Product, Project IP including without limitation Interface technology,and/or a combination with, an addition to, or a modification of the Products by ParkerVision after delivery by TI. 18.3.2 PARKERVISION INDEMNIFICATION. If a Collaborative Product made and sold by TI into the open market in accordance with Section 16.2(b) shall be held to infringe Intellectual Property Rights and TI is enjoined from making, using or reselling same because of such infringement, or if TI discontinues shipment of such Collaborative Product to the open market after a third party has filed suit in a court alleging such infringement, then ParkerVision will exert all Commercially Reasonable Efforts, at its option and at its expense, to obtain the right to have made such Collaborative Products by TI, and in the case of Collaborative Products sold by by TI into the open market in accordance with Section 16.2(b) to procure for TI the right to make, have made, use, sell, resell and otherwise market such Collaborative Products to the extent provided for in Section 16.2(b) free of any liability for infringement of such Intellectual Property Rights. ParkerVision shall not be obligated for any of the foregoing remedies if the infringement arises from a TI Digital Baseband Processor, Project IP including without limitation Interface technology, and/or a combination with, an addition to, or a modification of the Products by TI, or if the infringement arises from the use of TI Manufacturing Technology. 18.3.3 Discontinuation of Shipments. If an infringement per Section 18.1 or Section 18.2 is alleged prior to the completion of delivery of Products under this Agreement, TI may decline to TI/PV Page 28 accept new purchase orders or make further shipments without being in breach of this Agreement. The period of foundry exclusivity under Section 6 shall immediately expire for any Product for which TI has elected to reject new purchase orders or discontinue shipments under this Section. 18.4. THE FOREGOING STATES THE SOLE AND EXCLUSIVE LIABILITY OF THE PARTIES FOR INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS AND IS IN LIEU OF ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, IN REGARD THERETO. 19. NO OTHER LICENSE ---------------- EXCEPT FOR THE CONVEYANCES AND THE LICENSES GRANTED IN SECTIONS [3.2; 5.2.5, 5.2.6, 5.3, 6.6 and 16.2] ABOVE, NOTHING IN THIS AGREEMENT, any STATEMENT OF WORK OR THE FOUNDRY BUSINESS PLAN SHALL BE CONSTRUED AS GRANTING OR CONFERRING ANY RIGHTS BY LICENSE OR OTHERWISE, EXPRESSLY, IMPLIED OR OTHERWISE, UNDER ANY INTELLECTUAL PROPERTY RIGHTS OF EITHER PARTY MADE, CONCEIVED OR ACQUIRED PRIOR TO, DURING OR AFTER THE TERM OF THIS AGREEMENT. WITHOUT LIMITING THE GENERALITY OF THE PRECEDING SENTENCE, THE PARTIES HEREBY EXPRESSLY AGREE THAT NOTHING IN THIS AGREEMENT SHALL BE CONSTRUED AS GRANTING OR CONFERING To a party aNY RIGHTS, BY LICENSE OR OTHERWISE, in the OTHER PARTY'S sub-parts, products, integrated circuits, front ends, DEVICES and/OR CHIPSETS. 20. LIMITATION OF DAMAGES. UNLESS EXPRESSLY PROVIDED FOR IN THIS AGREEMENT AND EXCEPT FOR DAMAGES INCURRED BY A PARTY AS A RESULT OF THE OTHER PARTY'S BREACH OF A CONFIDENTIALITY OBLIGATION HEREUNDER OR IN CONNECTION HEREWITH, AND EXCEPT FOR damages that result from PARKERVISION'S or its affiliates breach of the covenant in Section 5.4, NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY LOST PROFITS, LOSS OF GOODWILL, OVERHEAD, OR OTHER INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, HOWEVER CAUSED, AND WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE. THESE LIMITATIONS SHALL APPLY EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY HEREIN. TI/PV Page 29 21. CONFIDENTIAL INFORMATION. 21.1. DEFINITION. "Confidential Information" means information relating to the subject matter of this Agreement which is regarded as confidential or proprietary by one Party or the other, and information transferred during meetings or other communication between the Parties relating to this Agreement which is owned or controlled by either Party and which relates to its past, present or future activities with respect to the subject matter of this Agreement,. if such information is disclosed by one of the Parties to the other Party in written, graphic, model or other tangible form or in the form of a computer program or in a machine readable medium or any derivation thereof and is designated in writing as confidential or proprietary by an appropriate legend, together with the name of the Party so disclosing it, or, if such information is disclosed orally, which is identified at the time of oral disclosure as confidential or proprietary and which is reduced to written, graphic, model, or other tangible form, marked as confidential and delivered by the disclosing Party within thirty (30) days after such oral disclosure. By way of example and not of limitation, information disclosed by a Party will be deemed to be marked as confidential if it is marked as either Party's "Internal Data" or as "Strictly Private". 21.2. CONFIDENTIALITY OBLIGATION. Each Party agrees that the Confidential Information of the other Party which it receives pursuant to this Agreement is received only for its own use and only to the extent provided in this Agreement. Each Party agrees to keep the Confidential Information confidential and to disclose it to no third party, but only to such employees of the receiving Party with a need to know such information, until (i) the expiration or termination of this Agreement or (ii) the date five (5) years from the date of initial disclosure, whichever is later. Neither Party shall be liable for the unauthorized use or disclosure of such information provided that such Party exercises at least the same degree of care as the receiving Party normally exercises to protect against the unauthorized use or disclosure of its own confidential or proprietary data and information of similar importance, and that such degree of care affords at least reasonable protection, and provided that such receiving Party takes reasonable action to prevent further unauthorized use or disclosure after becoming aware of same. 21.3. OWNERSHIP AND USE. All Confidential Information of either Party is and shall remain exclusively owned by the disclosing Party, and the grant in this Agreement of license or other rights therein or access thereto does not transfer to the receiving Party any present or future ownership rights in the Confidential Information. 21.4. CONFIDENTIALITY EXCEPTION. Notwithstanding the provisions of Section [21.1], nothing received by a Party is required to be treated as Confidential Information TI/PV Page 30 which prior hereto, or during the term of this Agreement, or thereafter, is or becomes (1) publicly known through no unauthorized act of the receiving Party, (ii) rightfully received from a third party without obligation of confidentiality, (iii) independently developed by the receiving Party, (iv) already known by the receiving Party without an obligation of confidentiality, (v) intentionally disclosed without similar restrictions by the disclosing Party to a third party, or (vi) approved by the disclosing Party for public disclosure. Evidence supporting (iii) shall be provided by the Party asserting same upon the request of the other Party. 21.5. OTHER DISCLOSURE. Neither Party shall be liable for disclosure of any Confidential Information if such disclosure is in response to a valid order of a court or other government body or any political subdivision thereof, provided, however, that the Party proposing to disclose such information shall first notify the other Party and shall make a good faith effort to obtain a protective order requiring that the Confidential Information so disclosed be used only for the purpose for which such protective order is issued. 21.6 RESTRICTION ON FILING PATENT APPLICATIONS. Neither Party shall file or cause to be filed any patent application on an invention of the other Party disclosed by the other Party as Confidential Information. Without limiting the generality of the foregoing, TI hereby specifically undertakes not to file or cause to be filed any patent application on an invention disclosed by ParkerVision to TI as Confidential Information pursuant to Section 16.2. 22. EXPIRATION AND TERMINATION. --------------------------- 22.1. TERM OF THE AGREEMENT. This Agreement will enter into effect on the Effective Date first stated above and, unless sooner terminated as elsewhere provided in this Agreement, shall continue in full force and effect until the expiration of the foundry relationship contemplated in Section [6] above; provided, however, that notwithstanding such expiration or termination, this Agreement shall remain effective and continue to govern: (a) orders placed by ParkerVision and accepted by TI prior to the expiration or termination of the Agreement; (b) any uncompleted development work that remains to be performed by either Party pursuant to a Statement of Work hereunder unless the Statement of Work is terminated in accordance with Section [4.4] above; and (c) manufacture and supply of Products in accordance with Section [6.4] above. TI/PV Page 31 22.2. TERMINATION. This Agreement may be terminated by a Party for the following reasons: 22.2.1. If either Party shall at any time default, without any material causative fault on the part of the other Party, by failing to perform any material provision of this Agreement, the non-defaulting Party may obtain the right to terminate this Agreement by providing written notice to the defaulting Party specifying the breach. The Agreement will not be terminated if (i) the material breach specified in the notice is remedied within the thirty (30) day period following receipt of the notice by the defaulting Party or (ii) if the breach reasonably requires more than thirty (30) days to correct, the defaulting Party has, within thirty (30) days from receipt of the notice of default, begun substantial corrective action to cure the breach and submitted a written remediation plan to the non-defaulting Party's Program Coordinator providing a detailed explanation of the steps to be taken to cure the breach as quickly as practicable, the defaulting Party diligently pursues such corrective action, and such breach is actually cured within sixty (60) days following receipt of the notice of default. If any default is not cured within the time permitted, the non-defaulting Party shall have the right to terminate this Agreement at any time thereafter by giving written notice of termination to the other Party, and upon the giving of such notice of termination this Agreement shall terminate immediately. The defaulting Party shall have the right to cure any such default up to the date of termination. Termination of this Agreement as provided hereunder shall not prejudice any right or remedy of the non-breaching party. 22.2.2. Upon written notice if the other Party becomes bankrupt or insolvent, suffers a receiver to be appointed or makes assignment for the benefit of creditors. 22.3. SURVIVAL. The Sections of this Agreement relating to warranties (Section 15), duty of payments (Sections 13 and 16), confidential information (Section 21), Intellectual Property Rights (Section 5), licenses granted (3.2; 5.2.5, 5.2.6, 5.3, 6.6 and 16.2), publicity (Section 23.16), indemnification (Section 18), limits of liability (Section 20), relationship of the parties (Section 23.2), Change of Control (Section 16), termination (Section 22.1), and compliance with laws shall survive termination or expiration of this Agreement. TI/PV Page 32 23. MISCELLANEOUS. 23.1. FORCE MAJEURE. Anything contained in this Agreement to the contrary notwithstanding, the obligations of the Parties hereto shall be subject to all laws, both present and future, of any government having jurisdiction over the Parties hereto, and to orders, regulations, directions or requests of any such government, or any department, agency or corporation thereof, and to war, acts of public enemies, strikes or other labor disturbances, accidents, transportation embargo, shortage of supplies, fires, floods, earthquakes, acts of God, or causes of like or different kind beyond the control of the Parties, and the Parties hereto shall be excused from any failure to perform any obligation hereunder to the extent such failure is caused by any such law, order, regulation, direction, request or contingency, for the period such cause endures. Production and deliveries may be allocated in a reasonable manner among its customers by TI when these circumstances create a delay or shortfall in production of the Product or of products of the general type covered by this Agreement. Notwithstanding the foregoing, in the event any such cause delays either Party's performance of any of its material obligations under this Agreement, the other Party may suspend its performance under this Agreement for the period such delay continues and if any such cause renders impossible or delays for a period of more than six months either Party's performance of any of its material obligations under this Agreement, the other Party may upon written notice terminate this Agreement and such termination will be deemed to have occurred with consent of both parties. The Party whose performance is delayed on account of any such cause shall promptly notify the other Party, and shall exert Commercially Reasonable Efforts to recommence performance as soon as possible. 23.2. RELATIONSHIP OF PARTIES. 23.2.1. Neither Party shall have, or shall represent that it has, any power, right, or authority to bind the other Party, or to assume or create any obligation or responsibility, express or implied, on behalf of the other Party or in the other Party's name. 23.2.2. Each Party is an independent contractor, nothing in this Agreement shall be construed as constituting ParkerVision and TI as partners, joint venturers, or as creating the relationships of employer and employee, franchiser and franchisee, principal and agent, or any other form of legal association that would impose liability on one Party for the act or failure to act of the other Party. 23.2.3. EMPLOYEES/NON-SOLLICITATION. An employee of one Party shall not be considered, for any purpose, an employee of the other Party. To the extent this Agreement involves work by one Party on the premises of the other Party, each Party shall instruct and require its respective visiting TI/PV Page 33 employees to observe and obey all rules, policies and procedures in effect at the facilities of the other Party. During the term of this Agreement and for a period of one (1) year thereafter, each Party will not solicit or induce any employee of the other Party who is engaged in transfer of technical information or in rendering technical assistance to become an employee or consultant of such Party. 23.3 NOTICES AND ADMINISTRATION OF THE AGREEMENT. All notices shall be given in writing either by personal delivery to the Party to whom notice is directed, or by confirmed telex or facsimile, or by a commercial overnight courier service, or by registered or certified mail, return receipt requested. The date upon which any such notice is so personally delivered, the date of confirmation of telex, facsimile, or courier delivery, or if the notice is given by registered or certified mail, the date three (3) days after it is deposited in the U.S. mails, shall be deemed to be the date delivered to the Party to whom notice is directed. For and on the behalf of each Party, the person designated below shall have cognizance of the work provided pursuant to this Agreement. General administration of the Agreement shall be through them. Each Party reserves the right to independently appoint a different individual and agrees to notify the other Party in writing of such change. All statements, and notices shall be sent directly to the following individuals: IF TO PARKERVISION: IF TO TI PARKERVISION, INC. TEXAS INSTRUMENTS INCORPORATED 8493 Baymeadows Way 7839 Churchill Way Jacksonville, Florida 32256 Dallas, Texas 75251 Attn: Legal Department Attention: Law Department Telephone: (904) 737-1367 Telephone: (972) 917-4440 Facsimile: (904) 636-6473 Facsimile: (972) 917-4418 23.4 ENTIRE AGREEMENT. This Agreement, including its exhibits and schedules, set forth the entire agreement and understanding between the Parties as to the subject matter hereof and supersedes all prior discussions, negotiations and agreements, written, oral or implied, between them in respect of the subject matter of this Agreement. Neither Party shall be bound by any conditions, definitions, warranties, understandings or representations with respect to such subject matter other than as expressly provided herein or as duly set forth on or subsequent to the date hereof in writing and signed by a proper and duly authorized officer or representative of the Party to be bound thereby. In the event that this Agreement conflicts with a Statement of Work, a purchase order, or the Foundry Business Plan, this Agreement controls. TI/PV Page 34 23.5 APPLICABLE LAW. This Agreement shall be governed by, construed and interpreted and the rights of the parties determined in accordance with the laws of the State of New York without regard to the choice of law principles thereof. 23.6 BIND AND BENEFIT. This Agreement shall be binding upon and shall inure to the benefit of, the Parties' respective successor. 23.7 ASSIGNMENT. Neither Party may assign or delegate or otherwise transfer its rights or obligations under this Agreement either in whole or in part, without the prior written consent of the other Party, which consent shall not be unreasonably withheld in the case of a Change of Control, as defined in Section 16.5(ii), subject to the requirement that the Party's assignee or transferee provides the other Party with prima facie evidence of its technical and commercial capability to perform under this Agreement, and agrees in writing to comply under the terms and conditions of this Agreement. It shall not be deemed to be an assignment or delegation of a Party's rights or obligations hereunder (and, accordingly, no consent of the other Party shall be required) if a Party engages in a merger or other similar transaction, as a result of which the holders of the outstanding voting securities of such Party prior to the transaction own less than 50% of the outstanding voting securities of the surviving corporation after the transaction. TI's consent to an assignment, delegation or other transfer of ParkerVision's rights and obligations hereunder shall not be construed as a waiver of TI's rights under Section 16.2 of this Agreement. Any attempted assignment in violation of the provisions of this Section will be void. 23.8 ALTERATIONS AND WAIVERS. The waiver, amendment or modification of any provision of this Agreement or any right, power or remedy hereunder, whether by agreement of the Parties or by custom, course of dealing or trade practice, shall not be effective unless made in writing and signed by the Parties hereto. No failure or delay by either Party in exercising any right, power or remedy with respect to any of the provisions of this Agreement shall operate as a waiver of such provisions with respect to such occurrences; nor shall any extension of time or other indulgence granted to a Party hereunder otherwise alter or affect any power, remedy or right of the other Party, or the obligations of the Party to whom such extension or indulgence is granted; nor shall the failure by either Party to enforce any provision be deemed a waiver of future enforcement of that or any other provision. 23.9 SEVERABILITY. In the event any provision of this Agreement or the application of any such provision shall be held to be prohibited or unenforceable in any jurisdiction, such provision shall, as to such jurisdiction, be ineffective to the extent of such prohibition or un-enforceability; but, the remaining provisions of this Agreement shall remain in full force and effect, and any such prohibition or TI/PV Page 35 unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. The Parties shall use their Commercially Reasonable Efforts to replace the provision that is contrary to law with a legal one with approximately, to the extent possible, the original intent of the Parties. 23.10 LANGUAGE INTERPRETATION. In the interpretation of this Agreement, unless the context otherwise requires, (a) words importing the singular shall be deemed to import the plural and vice versa, (b) words denoting gender shall include all genders, (c) references to persons shall include corporations or other bodies, and vice versa, (d) references to Parties, sections, schedules, addenda, paragraphs, articles and exhibits shall mean the Parties, sections, schedules, addenda, paragraphs, articles and exhibits of and to this Agreement, and (e) periods of days, weeks or months shall mean calendar days, weeks or months. 23.11 HEADINGS. Article and Section headings are included solely for convenience, are not to be considered a part of this Agreement, and are not intended to be full and accurate descriptions of their contents. 23.12 COUNTERPARTS OF AGREEMENT. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. 23.13 NO THIRD-PARTY BENEFICIARIES. Nothing contained in this Agreement shall be construed to give any person other than ParkerVision and TI any legal or equitable right, remedy or claim under or with respect to this Agreement. 23.14 OTHER RESTRICTIONS. In exercising its rights under this Agreement, each Party agrees to comply strictly and fully with all export controls imposed on Products, by any country or organization or nations within whose jurisdiction each Party operates or does business. Each Party agrees not to export or permit export of Products or any related technical data or any direct Product of any related technical data, without complying with the export control laws in the relevant jurisdiction. 23.15 OZONE DEPLETING SUBSTANCES: Except where the ParkerVision has given written approval to TI, in advance of shipment, TI hereby agrees that it has not used or introduced after May 15, 1993, a Class I or Class II ozone depleting substance (ODS) (as such terms are defined in 40 CFR 82.104), into any product being supplied to or imported by ParkerVision under this Agreement. Where the ParkerVision has so agreed to accept product containing or manufactured using an ODS, TI will label the product with a warning or will otherwise effectively warn ParkerVision of such use in accordance with 40 CFR 82, Subpart E. Should TI choose to warn ParkerVision through a mechanism other than a warning label or TI/PV Page 36 other warning accompanying the shipment, a copy of such warning shall be sent to the ParkerVision, or the otherwise appointed representative of the Buyer of Record, in advance of shipment. Breach of this provision will entitle ParkerVision to all remedies available for breach of this Agreement, including without limitations, the right to reject the product and/or terminate this Agreement. 23.16 CONFIDENTIALITY OF AGREEMENT. Each Party agrees that the terms and conditions of this Agreement shall be treated as Confidential Information. Neither Party will disclose the terms or conditions to any third party without the prior written consent of the other Party, except that either Party may disclose the terms and conditions of this Agreement: 1) as required by any court or other governmental body; 2) as required otherwise by law; 3) to legal counsel of the Parties, accountants, and other professional advisors; or 4) to a third party who is negotiating with a Party to acquire such Party (that is, to cause a Change of Control of such Party as defined in Section 16.5), as long as the third party agrees in writing to maintain as confidential any terms and conditions of this Agreement disclosed to the third party. 23.17 ANNOUNCEMENT. Notwithstanding that the terms and conditions of this Agreement are confidential, TI and ParkerVision agree to issue a mutually agreeable joint press release upon execution of the Agreement Additionally, either Party may file a Report with the Securities and Exchange Commission on Form 8-K with respect to this Agreement. The Report on Form 8-K Report shall be provided to the other Party for review prior to filing, but each Party shall be responsible for its own filing. To the extent permitted by the Securities and Exchange Commission's rules, the filing Party shall apply to the Commission for confidential treatment of commercially sensitive terms of the Agreement, including but not limited to pricing, lead time, and margin sharing provisions. Either Party may also make additional disclosures as are required by law or required of a government agency, subject to prior notice to the other Party so that such other Party may seek an appropriate protective order. Terms and conditions of the Agreement not disclosed in accordance with the foregoing shall be kept confidential by the Parties. 23.18 EXHIBITS. The following is the list of Exhibits which are attached hereto and are hereby incorporated into this Agreement by reference: Exhibit A: Model Statement of Work Exhibit B: TI Manufacturing Technology Exhibit C: Guidelines for the Registration and Protection of Jointly Owned Project IP TI/PV Page 37 Exhibit D: Per Unit Revenue Sharing for Collaborative Products sold by TI in accordance with Section 16. Exhibit E: ParkerVision Trademarks Exhibit F: Example of Product Pricing and Quoted Lead-Time Quoted by TI Exhibit G: Additional Trademark Provisions -License Restrictions Exhibit H: Acquiring Party's Written and Binding Assurance per Section 16.2 Exhibit I: TI's Standard Terms and Conditions for Sales of Semiconductor Products Exhibit J (J1-J3): ParkerVision Down-Converter Schematics Exhibit K: Calculation for Percentage Discharge of Output Signal Exhibit L (L1-L4): ParkerVision Up-Converter Schematics (L1-L3) and an exemplary digital aperture generator circuit (L4) Exhibit M: Analog Amplitude Varying Input Waveform TI/PV Page 38 IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be signed by duly authorized officers or representative as the date first above written. TEXAS INSTRUMENTS INCORPORATED PARKERVISION INCORPORATED By: By: ------------------------------ ------------------------------ Name: Name: --------------------------- ---------------------------- Title: Title: -------------------------- --------------------------- Date: Date: --------------------------- ---------------------------- EX-23.1 4 ex231-204.txt CONSENT OF PRICEWATERHOUSECOOPERS LLP EXHIBIT 23.1 CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS We hereby consent to the incorporation by reference in this Amendment No. 2 to the Registration Statement on Form S-3 of our report dated March 27, 2003 relating to the consolidated financial statements and financial statement schedule, which appears in ParkerVision, Inc.'s Annual Report on Form 10-K for the year ended December 31, 2002. We also consent to the reference to us under the heading "Experts" in such Registration Statement. /s/ PricewaterhouseCoopers LLP - ------------------------------ PricewaterhouseCoopers LLP Jacksonville, Florida February 9, 2004
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