parkervision_s3-0109.htm
As
filed with the Securities and Exchange Commission on January 5,
2009
Registration
No. 333- _______
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
______________________________
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 Other Jurisdiction of
Incorporation or Organization)
|
(I.R.S. Employer Identification
Number)
|
7915
Baymeadows Way, Suite 400
Jacksonville,
Florida 32256
(904)
737-1367
(Address, Including Zip Code, and
Telephone Number, Including Area Code, of Registrant's Principal Executive
Office)
Jeffrey
L. Parker
Chairman
of the Board and Chief Executive Officer
ParkerVision,
Inc.
7915
Baymeadows Way, Suite 400
Jacksonville,
Florida 32256
(904)
737-1367
(Name, Address, Including Zip Code,
and Telephone Number, Including Area Code, of Agent for
Service)
Copies to:
David
Alan Miller, Esq.
Graubard
Miller
405
Lexington Avenue, 19th
Floor
New
York, New York 10174
Telephone: (212)
818-8800
Fax: (212)
818-8881
Approximate date of commencement of
proposed sale to the public: From time to time after the effective
date of this Registration Statement.
If the
only securities being registered on this form are being offered pursuant to
dividend or interest reinvestment plans, please check the following box. o
If any of
the securities being registered on this form are to be offered on a delayed or
continuous basis pursuant to Rule 415 under the Securities Act of 1933, other
than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. x
If this
form is filed to register additional securities for an offering pursuant to Rule
462(b) under the Securities Act, please check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. o
If this
form is a post-effective amendment filed pursuant to Rule 462(c) under the
Securities Act, check the following box and list the Securities Act registration
statement number of the earlier effective registration statement for the same
offering. o
If this
form is a registration statement pursuant to General Instruction I.D. or a
post-effective amendment thereto that shall become effective upon filing with
the Commission pursuant to Rule 462(e) under the Securities Act, check the
following box. o
If this
form is a post-effective amendment to a registration statement filed pursuant to
General Instruction I.D. filed to register additional securities or additional
classes of securities pursuant to Rule 413(b) under the Securities Act, check
the following box o
Indicate
by check mark whether the registrant is a large accelerated filer, an
accelerated filer, a non-accelerated filer, or a smaller reporting
company. See the definitions of “large accelerated filer”,
“accelerated filer” and “smaller reporting company” in Rule 12b-2 of the
Exchange Act.
|
Large
accelerated filer o
|
Accelerated
filer x
|
|
Non-accelerated
filer o
(Do
not check if a smaller reporting company)
|
Smaller
reporting company o
|
CALCULATION
OF REGISTRATION FEE
|
Title
of each class of
securities
to be registered
|
Amount
to be registered
|
Proposed
maximum offering price per unit
|
Proposed
maximum aggregate offering price
|
Amount
of registration fee(3)
|
|
Common
stock, par value $.01 per share
|
(1)
(2)
|
(1)
(2)
|
(1)
(2)
|
-
|
|
Preferred
stock, par value $1.00
|
(1)
(2)
|
(1)
(2)
|
(1)
(2)
|
-
|
|
Warrants
|
(1)
(2)
|
(1)
(2)
|
(1)
(2)
|
-
|
|
Debt
Securities
|
(1)
(2)
|
(1)
(2)
|
(1)
(2)
|
-
|
|
Total
|
|
|
$25,000,000
|
$982.50
|
(1) Omitted
pursuant to General Instruction II.D of Form S-3 and Rule 457(o) promulgated
under the Securities Act of 1933, as amended. The proposed amount to
be registered, maximum offering price per unit and maximum aggregate offering
price per class of security will be determined from time to time by the
registrant in connection with the issuance by the registrant of the securities
registered hereunder.
(2) This
registration statement covers such indeterminate number of shares of common
stock and preferred stock, such indeterminate number of warrants to purchase
common stock, preferred stock or debt securities and such indeterminate
principal amount of debt securities of the registrant as have an aggregate
initial offering price not to exceed $25,000,000. The securities registered
hereunder are to be issued from time to time at prices to be determined. The
securities registered hereunder also include such indeterminate number of shares
of common stock and preferred stock as may be issued upon conversion or exchange
of preferred stock or debt securities that provide for conversion or exchange,
upon exercise of warrants or pursuant to the antidilution provisions of any such
securities. In addition, pursuant to Rule 416 under the Securities Act, the
shares being registered hereunder include such indeterminate number of shares of
common stock and preferred stock as may be issuable with respect to the
securities being registered hereunder as a result of stock splits, stock
dividends or similar transactions.
(3) Calculated
pursuant to Rule 457(o) promulgated under the Securities Act of 1933, as
amended.
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
preliminary prospectus is not complete and may be changed. We
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 is
not
permitted.
|
Subject
to Completion, dated January 5, 2009
Prospectus
PARKERVISION,
INC.
$25,000,000
COMMON
STOCK, PREFERRED STOCK, WARRANTS AND DEBT SECURITIES
By this
prospectus, we will offer and sell from time to time shares of our common stock
and preferred stock, warrants and debt securities at an aggregate initial
offering price not to exceed $25,000,000. The debt
securities that we may offer may consist of senior debt securities or
subordinated debt securities, in each case consisting of notes or other evidence
of indebtedness in one or more series. The warrants that we may offer
will consist of warrants to purchase any of the other securities that may be
sold under this prospectus. The securities offered under this
prospectus may be offered separately, together, or in separate series, and in
amounts, at prices and on terms to be determined at the time of sale. We will provide the
specific terms of these securities in supplements to this
prospectus. You should read this prospectus and any supplements
carefully before you invest.
We expect
to use the net proceeds from the sale of the securites offered hereby to fund
working capital, capital expenditures, operating losses and other general
corporate purposes or to pay outstanding invoices for services or products
supplied to us.
Our
common stock is listed for trading on the NASDAQ Global Market under the symbol
“PRKR.” On January 2, 2009, the last reported sale price of our
common stock was $2.90.
Investing
in our securities involves a high degree of risk. See the section
entitled “Risk Factors” appearing on page 3 in this prospectus and elsewhere in
any supplements for a discussion of information that should be considered in
connection with an investment in our securities.
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.
This
prospectus may not be used to consummate the sale of any securities unless
accompanied by a prospectus supplement relating to the securities
offered.
The date
of this prospectus is January 5, 2009
TABLE
OF CONTENTS
|
PROSPECTUS
SUMMARY
|
1
|
|
RISK
FACTORS
|
3
|
|
NOTE
ON FORWARD-LOOKING STATEMENTS
|
3
|
|
USE
OF PROCEEDS
|
3
|
|
RATIO
OF EARNINGS TO FIXED CHARGES
|
4
|
|
DESCRIPTION
OF CAPITAL STOCK
|
4
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|
DESCRIPTION
OF WARRANTS
|
7
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|
DESCRIPTION
OF DEBT SECURITIES
|
9
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|
PLAN
OF DISTRIBUTION OF SHELF SECURITIES
|
15
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|
LEGAL
MATTERS
|
17
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|
EXPERTS
|
17
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|
WHERE
YOU CAN FIND MORE INFORMATION
|
17
|
______________________________
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.
______________________________
PROSPECTUS
SUMMARY
This
prospectus is part of a registration statement that we filed with the Securities
and Exchange Commission using a “shelf” registration process. Under
this shelf process, we may, from time to time, sell or issue any of the
combination of securities described in this prospectus in one or more offerings
with a maximum aggregate offering price of up to $25,000,000.
This
prospectus provides you with a general description of the securities we may
offer. Each time we sell securities, we will provide a prospectus
supplement that will contain specific information about the terms of that
offering. The prospectus supplement may also add, update or change
information contained in this prospectus. You should read both this
prospectus and any prospectus supplement, together with the additional
information described below under the heading “Where You Can Find More
Information.”
You
should not assume that the information appearing in this prospectus is accurate
as of any date other than the date on the front cover of this
prospectus. You should not assume that the information contained in
the documents incorporated by reference in this prospectus is accurate as of any
date other than the respective dates of those documents. Our
business, financial condition, results of operations, and prospects may have
changed since that date.
References
in this prospectus to “ParkerVision,” “we,” “us” and “our” refer to
ParkerVision, Inc., a Florida corporation.
Company
Summary
General
We
operate in the business of wireless technologies and products. We are
in the business of designing, developing and marketing our proprietary wireless
radio frequency (“RF”) technologies for use in semiconductor circuits for
wireless radio applications. Our primary business strategy is to license our
technologies to chip suppliers and/or mobile handset manufacturers for the
incorporation of our technologies into mobile handsets; however, we will also
produce integrated circuits on a build-to-order basis for customers under supply
agreements. In addition, we have, from time to time, explored
licensing and other opportunities outside the cellular industry to the extent
that the applications are synergistic with our current development
efforts.
We were
incorporated under the laws of the State of Florida on August 22,
1989. Our executive offices are located at 7915 Baymeadows Way, Suite
400, Jacksonville, Florida 32256. Our telephone number is (904)
737-1367.
Initial
Customer Agreements
In 2007
and 2008, we entered into three agreements for the incorporation of our
technologies into RF products.
In May
2007, we executed an Engineering Services Agreement and a Licensing Agreement
with ITT Corporation (“ITT”) for the design and use of our Direct2Power™, or
d2p™, technology in applications worldwide. Under the agreements, we will be
paid royalties on a per unit basis for products sold by ITT that incorporate our
d2p technology. We are also providing engineering consulting and design services
to ITT on a time and materials basis, as requested, for the development of
products using our technology.
In
December 2007, we entered into a Licensing and Engineering Services Agreement
with a mobile handset chip supplier for the design and use of our d2p™ and our
Direct2Data™, or d2d™, technologies in chipsets initially targeted for the 3G
mobile handset market worldwide.
Under the
terms of the agreement, we will be paid royalties on a per unit basis for
chipsets sold which incorporate one or both of our RF technologies.
In
December 2008, we entered into a product and market development agreement with
LG Innotek Co., Ltd. (“LGIT”), a division of LG Group. Under the
terms of the agreement, we and LGIT will work cooperatively to develop and
market LGIT RF System-In-Package modules that incorporate ParkerVision’s
patented RF integrated circuits for the reception, transmission and power
amplification of RF carrier signals. ParkerVision will supply LGIT
with integrated circuits as tested, unpackaged dies under a supply agreement
between the parties, the terms of which will be finalized as part of the program
plan. LGIT intends to sell the RF modules to existing and new
customers for commercial HEDGE mobile handset and datacard
applications. HEDGE applications incorporate support for GSM, EDGE,
WCDMA, and HSPA waveform standards, addressing 3G as well as legacy 2G and 2.5G
applications.
Wireless
Technologies
Our
wireless technologies represent unique, proprietary methods for processing RF
waveforms in wireless applications. The technology applies to the transmit
(baseband data to an RF carrier signal) and receive (RF carrier signal to
baseband data) functions of a radio transceiver. The transmit portion of the
technology is called Direct2Power™, or d2p, and enables the transformation of a
digital baseband signal to an RF carrier waveform, at the desired power output
level, in a single unified operation. The receiver portion of the technology is
called Direct2Data™, or d2d, and enables the direct conversion of an RF carrier
to baseband data signal.
In the
second half of 2005, we began educating prospective customers about the benefits
of our technologies, with a focus on our d2p transmit technology. In 2006, we
completed our first d2p integrated circuit (“IC”) which embodied many of the
advancements of our technology and enabled us to begin demonstrating partially
integrated prototypes. Throughout 2006 and 2007, we continued to further advance
our prototype ICs while cultivating potential customer relationships. Our
sales-related activities from 2006 to 2008 included prototype demonstrations of
our increasingly integrated d2p platform, support of in-depth technical
due-diligence by prospective customers, analysis of prospective customer product
plans, delivery of initial proposals and terms, and, ultimately, negotiations of
proposed business relationships. Our initial target customer base was limited to
top tier mobile handset manufacturers. However, in 2006 and increasingly in
2007, mobile handset manufacturers were shifting RF innovation and developments
to their chipset providers. Accordingly, we expanded our target customer base to
include not only the mobile handset manufacturers, but also their component
suppliers. In addition, we expanded our market awareness campaign to include
network providers who are significant influencers to the OEMs in the mobile
handset industry.
Although
our primary target market is the mobile handset industry, we have explored
potential relationships outside this target market to the extent that the
requirements of the prospective customers are in concert with the needs of our
primary target market. This exploration resulted in our first license agreement,
with ITT Corporation in May 2007. Subsequently, in December 2007 and
December 2008, we entered into agreements for the development of products
incorporating our technology with customers in our primary target
market.
To date,
we have generated no royalty revenue from licensing of our wireless RF
technologies. Our ability to generate revenues sufficient to offset costs is
subject to our ability to successfully support our customers in completing their
initial product designs incorporating our technologies and expand our market
opportunities through additional product offerings with our current customers
and/or the addition of new customers such that we are able to secure a
reasonable share of the market. We believe our technology has substantial
advantages over competing technologies, especially in the third generation, or
3G, mobile handset market and generations that are likely to evolve beyond 3G,
such as 4G mobile handset standards and applications.
Our
unique technologies process the RF waveform in a more optimal manner than
existing technologies, thereby allowing OEMs to create handsets that have
extended battery life, more easily incorporate multiple air interface standards
and frequencies in smaller form factors, and reduce manufacturing costs. Our
technologies provide such attractive benefits, in part, because of the unique
integrated circuit architecture which enables efficient digital circuit
processing, eliminating many of the limitations of legacy analog
processing.
Patents
We
consider our intellectual property, including patents, patent applications,
trademarks, and trade secrets to be significant to our competitive positioning.
We have a program to file applications for and obtain patents, copyrights, and
trademarks in the United States and in selected foreign countries where we
believe filing for such protection is appropriate to establish and maintain our
proprietary rights in our technology and products. As of December 31, 2008, we
have obtained 65 U.S.
and 32
foreign patents related to our RF technologies and have approximately 125
patent applications pending in the United States and other countries. Our
patents have been issuing at a rate of approximately four to six new patents
each quarter. We estimate the economic lives of our patents to be fifteen to
twenty years.
RISK
FACTORS
Any
investment in our securities involves a high degree of
risk. Potential investors are urged to read and consider the risk
factors relating to an investment in our company set forth in our SEC filings,
including our annual report on Form 10-K for the year ended December 31, 2007
and the quarterly report on Form 10-Q for the quarters ended March 31, 2008,
June 30, 2008 and September 30, 2008.
NOTE
ON FORWARD-LOOKING STATEMENTS
Some of
the statements contained in this prospectus and incorporated by reference herein
are forward-looking statements that relate to possible future events, our future
performance and our future operations. In some cases, you can
identify these forward-looking statements by the use of words such as “may,”
“will,” “should,” “anticipates,” “believes,” “expects,” “plans,” “future,”
“intends,” “could,” “estimate,” “predict,” “potential,” “continue,” or the
negative of these terms or other similar expressions. These
statements are only our predictions. We cannot guarantee future
results, levels of activities, performance or achievements. Our
actual results could differ materially from these forward-looking statements for
many reasons, including the risks described from time to time in our SEC filings
and those risks identified under sections entitled “Risk Factors” in any
prospectus supplement. We are under no duty to update or revise any
of the forward-looking statements or risk factors to conform them to actual
results or to changes in our expectations.
USE
OF PROCEEDS
Unless
otherwise indicated in the applicable prospectus supplement, the net proceeds
from the sale of the securities offered hereby will be used to fund working
capital, capital expenditures, acquisitions, operating losses and other general
corporate purposes or to pay outstanding invoices for services or products
supplied to us.
Our
deficiency (excess) of earnings to fixed charges for the indicated periods are
set forth below. The information set forth below should be read in conjunction
with the financial information incorporated by reference herein.
(Amounts
in thousands of dollars)
|
|
|
For
the Nine Months Ended September 30, 2008
|
|
|
For
the Year Ended December 31, 2007
|
|
|
For
the Year Ended December 31, 2006
|
|
|
For
the Year Ended December 31, 2005
|
|
|
For
the Year Ended December 31, 2004
|
|
|
For
the Year Ended December 31, 2003
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
Earnings
|
|
$ |
(17,192 |
) |
|
$ |
(17,960 |
) |
|
$ |
(15,598 |
) |
|
$ |
(22,852 |
) |
|
$ |
(22,360 |
) |
|
$ |
(18,436 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Fixed
charges
|
|
|
154 |
|
|
|
253 |
|
|
|
218 |
|
|
|
247 |
|
|
|
228 |
|
|
|
199 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Ratio
of earnings to fixed charges (A)
|
|
|
- |
|
|
|
- |
|
|
|
- |
|
|
|
- |
|
|
|
- |
|
|
|
- |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Deficiency
of earnings to fixed charges
|
|
|
17,346 |
|
|
|
18,213 |
|
|
|
15,816 |
|
|
|
23,099 |
|
|
|
22,588 |
|
|
|
18,635 |
|
|
(A)
|
Due
to our losses from continuing operations, the ratio coverage is less than
1:1.
|
This
table sets forth our ratio of earnings to fixed charges on a historical basis
for the periods indicated. The ratios are calculated by dividing earnings by
fixed charges. For the purposes of computing the ratio of earnings to fixed
charges, earnings consist of pretax losses from continuing operations plus fixed
charges. Fixed charges consist of estimates of interest inherent in rental
expense.
We had no
shares of preferred stock outstanding for any period presented. As a result, the
ratio of earnings to combined fixed charges and preferred stock dividends is the
same as the ratio of earnings to fixed charges.
DESCRIPTION
OF CAPITAL STOCK
The
following description of our common stock and our preferred stock is a summary.
You should refer to our certificate of incorporation and our bylaws for the
actual terms of our capital stock.
Common
Stock
We are
authorized to issue up to 100,000,000 shares of common stock, $0.01 par value
per share. As of December 31, 2008 there were 26,716,080 shares of our common
stock outstanding. Holders of our common stock are entitled to one vote per
share on all matters submitted to a vote of stockholders and may not cumulate
votes for the election of directors. Common stockholders have the right to
receive dividends when, as, and if declared by the board of directors from funds
legally available therefore. Holders of common stock have no preemptive rights
and have no rights to convert their common stock into any other securities. Our
common stock is subject to the express terms of our preferred stock and any
series thereof.
Preferred
Stock
We are
authorized to issue up to 15,000,000 shares of preferred stock, $1.00 par value
per share. As of December 31, 2008, there were no preferred shares issued or
outstanding. The shares of preferred stock have such rights and preferences as
our board of directors shall determine, from time to time. The issuance of
preferred stock, while providing desirable flexibility in connection with
possible acquisition and other corporate purposes, could have the effect of
making it more difficult for a third party to acquire, or discourage a third
party from acquiring, a majority of our outstanding common stock. Our board of
directors may issue preferred stock with voting and conversion rights that could
adversely affect the voting power of the holders of our common stock or holders
of other series of preferred stock.
If we
offer a series of preferred stock, we will describe the specific terms of that
series in a prospectus supplement, including:
|
·
|
the
title of the series of preferred stock and the number of shares
offered;
|
|
·
|
the
price at which the preferred stock will be issued;
|
|
·
|
the
dividend rate, if any, the dates on which the dividends will be payable
and other terms relating to the payment of dividends on the preferred
stock;
|
|
·
|
the
voting rights of the preferred
stock;
|
|
·
|
whether
the preferred stock is redeemable or subject to a sinking fund, and the
terms of any such redemption or sinking
fund;
|
|
·
|
whether
the preferred stock is convertible into any other securities, and the
terms and conditions of any such
conversion;
|
|
·
|
the
liquidation preference of the preferred stock;
and
|
|
·
|
any
additional rights, preferences and limitations of the preferred
stock.
|
The
description of the terms of a series of preferred stock to be set forth in an
applicable prospectus supplement will not be complete and will be subject to and
qualified in its entirety by reference to the certificate of designation
relating to that series of preferred stock. The registration statement of which
this prospectus forms a part will include the certificate of designation as an
exhibit or as a document incorporated by reference.
Any
preferred stock will, when issued, be fully paid and
non-assessable.
Series
E Preferred Stock
On
November 17, 2005, the board of directors designated 100,000 shares of
authorized preferred stock as the Series E Preferred Stock in conjunction with
its adoption of a Shareholder Protection Rights Plan (as described
below). As of December 31, 2008, there were no shares of this series
issued and outstanding. The following description of the Series E
Preferred Stock, and any description of this series included in a prospectus
supplement, may not be complete and is subject to and qualified in its entirety
by reference to the certificate of designations, which was filed with the SEC on
November 22, 2005 as Exhibit 4.02 to a Current Report on Form 8-K.
Certain
rights of this series of preferred stock are defined in terms of a “Reference
Package.” The “Reference Package” is initially 10,000 shares of
common stock, as adjusted for stock dividends, subdivisions and
combinations.
The
holders of full or fractional shares of this series are entitled to receive
dividends, when and as declared by the board of directors, on each date that
dividends or other distributions (other than dividends or distributions payable
in our common stock) are payable on or in respect of common stock comprising
part of the Reference Package, in an amount per whole share of this series equal
to the aggregate amount of dividends or other distributions that would be
payable on such date to a holder of the Reference Package. In
addition, on the last day of March, June, September and December in each year,
the holders of this series are entitled to receive dividends in an amount per
whole share of this series equal to the excess (if any) of $100 over the
aggregate dividends paid per whole share of this series during the three-month
period ending on such last day. Dividends on each full and each fractional share
of this series are cumulative from the date such full or fractional share is
originally issued.
In the
event of any liquidation, dissolution or winding up of our affairs, whether
voluntary or involuntary, the holders of full and fractional shares of this
series shall be entitled, before any distribution or payment is made on any date
to the holders of the common stock or any other stock of ours ranking junior to
this series upon liquidation, to be paid in full an amount per whole share of
this series equal to the greater of $100 or the aggregate amount distributed or
to be distributed in connection with such liquidation, dissolution or winding up
to a holder of the Reference Package, together with accrued dividends to such
distribution or payment date, whether or not earned or declared.
This
series shall rank junior to all other series or classes of our preferred stock,
now existing or hereafter created, as to payment of dividends and the
distribution of assets, unless the terms of any such other series or class shall
provide otherwise.
Each
whole share of this series shall, on any matter, vote as a class with any other
capital stock comprising part of the Reference Package and voting on such matter
and shall have the number of votes thereon that a holder of the Reference
Package would have.
On
November 21, 2005, we adopted a Shareholder Protection Rights Agreement (“Rights
Agreement”) pursuant to which we issued, on November 29, 2005, as a dividend,
one right to acquire a fraction of a share of Series E Preferred Stock for each
then outstanding share of common stock. Each share of common stock
issued by us after such date also has included, and any subsequent shares of
common stock issued by us prior to the Separation Time (as defined in the Rights
Agreement) will include, an attached right. The following description
of the Rights Agreement, and any description of the Rights Agreement included in
a prospectus supplement, may not be complete and is subject to and qualified in
its entirety by reference to the terms and provisions of the Rights Agreement,
which was filed with the SEC on November 22, 2005 as Exhibit 4.01 to a Current
Report on Form 8-K.
The
principal objective of the Rights Agreement is to cause someone interested in
acquiring us to negotiate with our board of directors rather than launch an
unsolicited or hostile bid. The Rights Agreement subjects a potential
acquirer to substantial voting and economic dilution.
The
rights initially are not exercisable and trade with our common
stock. In the future, the rights may become exercisable with various
provisions that may discourage a takeover bid. If a potential
acquirer initiates a takeover bid or becomes the beneficial owner of 15% or more
of our common stock, the rights will separate from the common
stock. Upon separation, the holders of the rights may exercise their
rights at an exercise price of $45 per right (the “Exercise Price”), subject to
adjustment and payable in cash. Additionally, the rights have what
are known as “flip-in” and “flip-over” provisions that could make any
acquisition of us more costly to the potential acquirer. The “flip-in” provision
provides that, in the event a potential acquirer acquires 15% or more of the
outstanding shares of our common stock, upon payment of the exercise price, the
holders of the rights will receive from us that number of shares of common stock
having an aggregate market price equal to twice the Exercise Price, as adjusted.
The “flip-over” provision allows the holder to purchase that number of shares of
common/voting equity of a successor entity, if we are not the surviving
corporation in a business combination, with an aggregate market price equal to
twice the Exercise Price.
We have
the right to substitute for any of our shares of common stock that we are
obligated to issue, shares of Series E Preferred Stock at a ratio of one
ten-thousandth of a share of Series E Preferred Stock for each share of common
stock.
The
rights may be redeemed upon approval of the board of directors at a redemption
price of $0.01. The Rights Agreement expires on November 21, 2015.
Director
Nominations; Special Meetings
Nominations
for our board of directors may be made by our board or by any holder of common
stock. A shareholder entitled to vote for the election of directors
may nominate a person for election as director only if the shareholder provides
written notice of his nomination to our secretary not later than 120 days in
advance of the same day and month that our proxy statement was released to
shareholders in connection with the previous year’s annual meeting of
shareholders or, if no annual meeting was held in the previous year, then by the
end of the fiscal year to which the annual meeting in which the nomination will
be made relates. A special meeting of our shareholders may be called
only by our board of directors or our chief executive officer. These
provisions and the board of directors’ right to issue shares of our preferred
stock from time to time, in one or more classes or series without stockholder
approval, are intended to enhance the likelihood of continuity and stability in
the composition of the policies formulated by our board of directors. These
provisions are also intended to discourage some tactics that may be used in
proxy fights.
Transfer
Agent and Registrar
The
transfer agent and registrar for our common stock is American Stock Transfer
& Trust Company, 59 Maiden Lane, Plaza Level, New York, New York 10038 and
can be reached at (800) 937-5449. The transfer agent and registrar
for any series of preferred stock will be set forth in the applicable prospectus
supplement.
DESCRIPTION
OF WARRANTS
We may
issue warrants for the purchase of preferred stock, common stock or debt
securities, or any combination of these securities. Warrants may be issued
independently or together with other securities and may be attached to or
separate from any offered securities. Each series of warrants will be issued
under a separate warrant agreement to be entered into between a warrant agent
and us. The warrant agent will act solely as our agent in connection with the
warrants and will not have any obligation or relationship of agency or trust for
or with any holders or beneficial owners of warrants. The following outlines
some of the general terms and provisions of the warrants that we may issue from
time to time. Additional terms of the warrants and the applicable warrant
agreement will be set forth in the applicable prospectus supplement. The
following description, and any description of the warrants included in a
prospectus supplement, may not be complete and is subject to and qualified in
its entirety by reference to the terms and provisions of the applicable warrant
agreement, which we will file with the SEC in connection with any offering of
warrants.
Debt
Warrants
The
prospectus supplement relating to a particular issue of warrants exercisable for
debt securities will describe the terms of those warrants, including the
following:
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the
title of the warrants;
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the
offering price for the warrants, if
any;
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the
aggregate number of the warrants;
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the
designation and terms of the debt securities purchasable upon exercise of
the warrants;
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if
applicable, the designation and terms of the securities that the warrants
are issued with and the number of warrants issued with each
security;
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if
applicable, the date from and after which the warrants and any securities
issued with the warrants will be separately
transferable;
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the
principal amount and price of debt securities that may be purchased upon
exercise of a warrant;
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the
dates on which the right to exercise the warrants commence and
expire;
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if
applicable, the minimum or maximum amount of the warrants that may be
exercised at any one time;
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whether
the warrants represented by the warrant certificates or debt securities
that may be issued upon exercise of the warrants will be issued in
registered or bearer form;
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information
relating to book-entry procedures, if
any;
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if
applicable, a discussion of material U.S. federal income tax
considerations;
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anti-dilution
provisions of the warrants, if any;
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redemption
or call provisions, if any, applicable to the warrants;
and
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any
additional terms of the warrants, including terms, procedures and
limitations relating to the exchange and exercise of the
warrants.
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Stock
Warrants
The
prospectus supplement relating to a particular issue of warrants exercisable for
common stock or preferred stock will describe the terms of the common stock
warrants and preferred stock warrants, including the following:
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the
title of the warrants;
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the
offering price for the warrants, if
any;
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the
aggregate number of the warrants;
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the
designation and terms of the common stock or preferred stock that may be
purchased upon exercise of the
warrants;
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if
applicable, the designation and terms of the securities that the warrants
are issued with and the number of warrants issued with each
security;
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if
applicable, the date from and after which the warrants and any securities
issued with the warrants will be separately
transferable;
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the
number of shares and price of common stock or preferred stock that may be
purchased upon exercise of a
warrant;
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the
dates on which the right to exercise the warrants commence and
expire;
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if
applicable, the minimum or maximum amount of the warrants that may be
exercised at any one time;
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if
applicable, a discussion of material U.S. federal income tax
considerations;
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anti-dilution
provisions of the warrants, if any;
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redemption
or call provisions, if any, applicable to the warrants;
and
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any
additional terms of the warrants, including terms, procedures and
limitations relating to the exchange and exercise of the
warrants.
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Exercise
of Warrants
Each
warrant will entitle the holder of the warrant to purchase at the exercise price
set forth in the applicable prospectus supplement the principal amount of debt
securities or shares of common stock or preferred stock being offered. Holders
may exercise warrants at any time up to the close of business on the expiration
date set forth in the applicable prospectus supplement. After the close of
business on the expiration date, unexercised warrants will be void. Holders may
exercise warrants as set forth in the prospectus supplement relating to the
warrants being offered.
Until a
holder exercises the warrants to purchase any securities underlying the
warrants, the holder will not have any rights as a holder of the underlying
securities by virtue of ownership of warrants.
DESCRIPTION
OF DEBT SECURITIES
We may
offer any combination of senior debt securities or subordinated debt
securities. We may issue the senior debt securities and the
subordinated debt securities under separate indentures between us, as issuer,
and the trustee or trustees identified in a prospectus
supplement. Further information regarding the trustee may be provided
in the prospectus supplement. The form for each type of indenture is
filed as an exhibit to the registration statement of which this prospectus is a
part.
The
prospectus supplement will describe the particular terms of any debt securities
we may offer and may supplement the terms summarized below. The
following summaries of the debt securities and the indentures are not
complete. We urge you to read the indentures filed as exhibits to the
registration statement that includes this prospectus and the description of the
additional terms of the debt securities included in the prospectus
supplement.
General
Within
the total dollar amount of this shelf registration statement, we may issue an
unlimited principal amount of debt securities in separate series. We
may specify a maximum aggregate principal amount for the debt securities of any
series. The debt securities will have terms that are consistent with
the indentures. Senior debt securities will be unsubordinated
obligations and will rank equal with all our other unsubordinated
debt. Subordinated debt securities will be paid only if all payments
due under our senior indebtedness, including any outstanding senior debt
securities, have been made.
The
indentures might not limit the amount of other debt that we may incur or whether
that debt is senior to the debt securities offered by this prospectus, and might
not contain financial or similar restrictive covenants. The
indentures might not contain any provision to protect holders of debt securities
against a sudden or dramatic decline in our ability to pay our
debt.
The
prospectus supplement will describe the debt securities and the price or prices
at which we will offer the debt securities. The description will
include:
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the
title and form of the debt
securities;
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any
limit on the aggregate principal amount of the debt securities or the
series of which they are a part;
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the
date or dates on which we must repay the principal, the maturity date and
the principal amount due at maturity and whether the securities will be
offered at a price such that they will be deemed an “original issue
discount”;
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the
person to whom any interest on a debt security of the series will be
paid;
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the
rate or rates at which the debt securities will bear
interest;
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if
any, the date or dates from which interest will accrue, and the dates on
which we must pay interest;
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the
place or places where we must pay the principal and any premium or
interest on the debt securities;
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the
terms and conditions on which we may redeem any debt security, if at
all;
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any
obligation to redeem or purchase any debt securities, and the terms and
conditions on which we must do so;
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the
denominations in which we may issue the debt
securities;
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the
currency in which we will pay the principal of and any premium or interest
on the debt securities and whether we may pay in property other than cash,
including our securities;
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the
principal amount of the debt securities that we will pay upon declaration
of acceleration of their maturity;
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whether
and under what circumstances, if any, we will pay additional amounts on
any debt securities held by a person who is not a United States person for
tax purposes, and whether we can redeem the debt securities if we have to
pay such additional amounts;
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if
applicable, that the debt securities are defeasible and the terms of such
defeasance;
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if
applicable, the terms of any right to convert debt securities into, or
exchange debt securities for, shares of our debt securities, preferred
stock or common stock or other securities or
property;
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whether
we will issue the debt securities in the form of one or more global
securities and, if so, the respective depositaries for the global
securities and the terms of the global
securities;
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the
subordination provisions that will apply to any subordinated debt
securities;
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any
addition to or change in the events of default applicable to the debt
securities and any change in the right of the trustee or the holders to
declare the principal amount of any of the debt securities due and
payable;
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any
addition to or change in the covenants in the indentures;
and
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any
other terms of the debt securities not inconsistent with the applicable
indentures.
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We may
sell the debt securities at a substantial discount below their stated principal
amount. We will describe U.S. federal income tax considerations, if
any, applicable to debt securities sold at an original issue discount in the
prospectus supplement. An “original issue discount security” is any
debt security sold for less than its face value, and which provides that the
holder cannot receive the full face value if maturity is
accelerated. The prospectus supplement relating to any original issue
discount securities will describe the particular provisions relating to
acceleration of the maturity upon the occurrence of an event of
default. In addition, we will describe U.S. federal income
tax or other considerations applicable to any debt securities that are
denominated in a currency or unit other than U.S. dollars in the
prospectus supplement.
Conversion
and Exchange Rights
The
prospectus supplement will describe, if applicable, the terms on which you may
convert debt securities into or exchange them for debt securities, preferred
stock and common stock or other securities or property. The
conversion or exchange may be mandatory or may be at our option or at your
option. The prospectus supplement will describe how the amount of
debt securities, number of shares of preferred stock and common stock or other
securities or property to be received upon conversion or exchange would be
calculated.
Subordination
of Subordinated Debt Securities
The
indebtedness underlying any subordinated debt securities will be payable only if
all payments due under our senior indebtedness, as defined in the applicable
indenture and any indenture supplement, including any outstanding senior debt
securities, have been made. If we distribute our assets to creditors
upon any dissolution, winding-up, liquidation or reorganization or in
bankruptcy, insolvency, receivership or similar proceedings, we must first pay
all amounts due or to become due on all senior indebtedness before we pay the
principal of, or any premium or interest on, the subordinated debt
securities. In the event the subordinated debt securities are
accelerated because of an event of default, we may not make any payment on the
subordinated debt securities until we have paid all senior indebtedness or the
acceleration is rescinded. If the payment of subordinated debt
securities accelerates because of an event of default, we must promptly notify
holders of senior indebtedness of the acceleration.
If we
experience a bankruptcy, dissolution or reorganization, holders of senior
indebtedness may receive more, ratably, and holders of subordinated debt
securities may receive less, ratably, than our other creditors. The
indenture for subordinated debt securities may not limit our ability to incur
additional senior indebtedness.
Form,
Exchange and Transfer
We will
issue debt securities only in fully registered form, without coupons, and only
in denominations of $1,000 and integral multiples thereof, unless the prospectus
supplement provides otherwise. The holder of a debt security may
elect, subject to the terms of the indentures and the limitations applicable to
global securities, to exchange them for other debt securities of the same series
of any authorized denomination and of similar terms and aggregate principal
amount.
Holders
of debt securities may present them for exchange as provided above or for
registration of transfer, duly endorsed or with the form of transfer duly
executed, at the office of the transfer agent we designate for that
purpose. We will not impose a service charge for any registration of
transfer or exchange of debt securities, but we may require a payment sufficient
to cover any tax or other governmental charge payable in connection with the
transfer or exchange. We will name the transfer agent in the
prospectus supplement. We may designate additional transfer agents or
rescind the designation of any transfer agent or approve a change in the office
through which any transfer agent acts, but we must maintain a transfer agent in
each place where we will make payment on debt securities.
If we
redeem the debt securities, we will not be required to issue, register the
transfer of or exchange any debt security during a specified period prior to
mailing a notice of redemption. We are not required to register the
transfer of or exchange of any debt security selected for redemption, except the
unredeemed portion of the debt security being redeemed.
Global
Securities
The debt
securities may be represented, in whole or in part, by one or more global
securities that will have an aggregate principal amount equal to that of all
debt securities of that series. Each global security will be
registered in the name of a depositary identified in the prospectus
supplement. We will deposit the global security with the depositary
or a custodian, and the global security will bear a legend regarding the
restrictions on exchanges and registration of transfer.
No global
security may be exchanged in whole or in part for debt securities registered,
and no transfer of a global security in whole or in part may be registered, in
the name of any person other than the depositary or any nominee or successor of
the depositary unless:
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the
depositary is unwilling or unable to continue as depositary;
or
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the
depositary is no longer in good standing under the Exchange Act or other
applicable statute or regulation.
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The
depositary will determine how all securities issued in exchange for a global
security will be registered.
As long
as the depositary or its nominee is the registered holder of a global security,
we will consider the depositary or the nominee to be the sole owner and holder
of the global security and the underlying debt securities. Except as
stated above, owners of beneficial interests in a global security will not be
entitled to have the global security or any debt security registered in their
names, will not receive physical delivery of certificated debt securities and
will not be considered to be the owners or holders of the global security or
underlying debt securities. We will make all payments of principal,
premium and interest on a global security to the depositary or its
nominee. The laws of some jurisdictions require that some purchasers
of securities take physical delivery of such securities in definitive
form. These laws may prevent you from transferring your beneficial
interests in a global security.
Only
institutions that have accounts with the depositary or its nominee and persons
that hold beneficial interests through the depositary or its nominee may own
beneficial interests in a global security. The depositary will
credit, on its book-entry registration and transfer system, the respective
principal amounts of debt securities represented by the global security to the
accounts of its participants. Ownership of beneficial interests in a
global security will be shown only on, and the transfer of those ownership
interests will be effected only through, records maintained by the depositary or
any such participant.
The
policies and procedures of the depositary may govern payments, transfers,
exchanges and other matters relating to beneficial interests in a global
security. We and the trustee will assume no responsibility or
liability for any aspect of the depositary’s or any participant’s records
relating to, or for payments made on account of, beneficial interests in a
global security.
Payment
and Paying Agents
We will
pay principal and any premium or interest on a debt security to the person in
whose name the debt security is registered at the close of business on the
regular record date for such interest.
We will
pay principal and any premium or interest on the debt securities at the office
of our designated paying agent. Unless the prospectus supplement
indicates otherwise, the corporate trust office of the trustee will be the
paying agent for the debt securities.
Any other
paying agents we designate for the debt securities of a particular series will
be named in the prospectus supplement. We may designate additional
paying agents, rescind the designation of any paying agent or approve a change
in the office through which any paying agent acts, but we must maintain a paying
agent in each place of payment for the debt securities.
The
paying agent will return to us all money we pay to it for the payment of the
principal, premium or interest on any debt security that remains unclaimed for a
specified period. Thereafter, the holder may look only to us for
payment, as an unsecured general creditor.
Consolidation,
Merger and Sale of Assets
Under the
terms of the indentures, so long as any securities remain outstanding, we may
not consolidate or enter into a share exchange with or merge into any other
person, in a transaction in which we are not the surviving corporation, or sell,
convey, transfer or lease our properties and assets substantially as an entirety
to any person, unless:
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the
successor assumes our obligations under the debt securities and the
indentures; and
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we
meet the other conditions described in the
indentures.
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Events
of Default
Each of
the following will constitute an event of default under each
indenture:
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failure
to pay any interest on any debt security when due, for more than a
specified number of days past the due
date;
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failure
to pay any principal or deposit any sinking fund payment when
due;
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failure
to perform any covenant or agreement in the indenture that continues for a
specified number of days after written notice has been given by the
trustee or the holders of a specified percentage in aggregate principal
amount of the debt securities of that
series;
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events
of bankruptcy, insolvency or reorganization;
and
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any
other event of default specified in the prospectus
supplement.
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If an
event of default occurs and continues, both the trustee and holders of a
specified percentage in aggregate principal amount of the outstanding securities
of that series may declare the principal amount of the debt securities of that
series to be immediately due and payable. The holders of a majority
in aggregate principal amount of the outstanding securities of that series may
rescind and annul the acceleration if all events of default, other than the
nonpayment of accelerated principal, have been cured or waived.
Except
for its duties in case of an event of default, the trustee will not be obligated
to exercise any of its rights or powers at the request or direction of any of
the holders, unless the holders have offered the trustee reasonable
indemnity. If they provide this indemnification and subject to
conditions specified in the applicable indenture, the holders of a majority in
aggregate principal amount of the outstanding securities of any series may
direct the time, method and place of conducting any proceeding for any remedy
available to the trustee or exercising any trust or power conferred on the
trustee with respect to the debt securities of that series.
No holder
of a debt security of any series may institute any proceeding with respect to
the indentures, or for the appointment of a receiver or a trustee, or for any
other remedy, unless:
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the
holder has previously given the trustee written notice of a continuing
event of default;
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the
holders of a specified percentage in aggregate principal amount of the
outstanding securities of that series have made a written request upon the
trustee, and have offered reasonable indemnity to the trustee, to
institute the proceeding;
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the
trustee has failed to institute the proceeding for a specified period of
time after its receipt of the notification;
and
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the
trustee has not received a direction inconsistent with the request within
a specified number of days from the holders of a specified percentage in
aggregate principal amount of the outstanding securities of that
series.
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Modification
and Waiver
We and
the trustee may change an indenture without the consent of any holders with
respect to specific matters, including:
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to
fix any ambiguity, defect or inconsistency in the indenture;
and
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to
change anything that does not materially adversely affect the interests of
any holder of debt securities of any
series.
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In
addition, under the indentures, the rights of holders of a series of notes may
be changed by us and the trustee with the written consent of the holders of at
least a majority in aggregate principal amount of the outstanding debt
securities of each series that is affected. However, we and the
trustee may only make the following changes with the consent of the holder of
any outstanding debt securities affected:
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extending
the fixed maturity of the series of
notes;
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reducing
the principal amount, reducing the rate of or extending the time of
payment of interest, or any premium payable upon the redemption, of any
debt securities; or
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reducing
the percentage of debt securities the holders of which are required to
consent to any amendment.
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The
holders of a majority in principal amount of the outstanding debt securities of
any series may waive any past default under the indenture with respect to debt
securities of that series, except a default in the payment of principal, premium
or interest on any debt security of that series or in respect of a covenant or
provision of the indenture that cannot be amended without each holder’s
consent.
Except in
limited circumstances, we may set any day as a record date for the purpose of
determining the holders of outstanding debt securities of any series entitled to
give or take any direction, notice, consent, waiver or other action under the
indentures. In limited circumstances, the trustee may set a record
date. To be effective, the action must be taken by holders of the
requisite principal amount of such debt securities within a specified period
following the record date.
Defeasance
To the
extent stated in the prospectus supplement, we may elect to apply the provisions
in the indentures relating to defeasance and discharge of indebtedness, or to
defeasance of restrictive covenants, to the debt securities of any
series. The indentures provide that, upon satisfaction of the
requirements described below, we may terminate all of our obligations under the
debt securities of any series and the applicable indenture, known as legal
defeasance, other than our obligation:
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to
maintain a registrar and paying agents and hold monies for payment in
trust;
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to
register the transfer or exchange of the notes;
and
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to
replace mutilated, destroyed, lost or stolen
notes.
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In
addition, we may terminate our obligation to comply with any restrictive
covenants under the debt securities of any series or the applicable indenture,
known as covenant defeasance.
We may
exercise our legal defeasance option even if we have previously exercised our
covenant defeasance option. If we exercise either defeasance option,
payment of the notes may not be accelerated because of the occurrence of events
of default.
To
exercise either defeasance option as to debt securities of any series, we must
irrevocably deposit in trust with the trustee money and/or obligations backed by
the full faith and credit of the United States that will provide money in an
amount sufficient in the written opinion of a nationally recognized firm of
independent public accountants to pay the principal of, premium, if any, and
each installment of interest on the debt securities. We may only
establish this trust if, among other things:
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no
event of default shall have occurred or be
continuing;
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in
the case of legal defeasance, we have delivered to the trustee an opinion
of counsel to the effect that we have received from, or there has been
published by, the Internal Revenue Service a ruling or there has been a
change in law, which in the opinion of our counsel, provides that holders
of the debt securities will not recognize gain or loss for federal income
tax purposes as a result of such deposit, defeasance and discharge and
will be subject to federal income tax on the same amount, in the same
manner and at the same times as would have been the case if such deposit,
defeasance and discharge had not
occurred;
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in
the case of covenant defeasance, we have delivered to the trustee an
opinion of counsel to the effect that the holders of the debt securities
will not recognize gain or loss for federal income tax purposes as a
result of such deposit, defeasance and discharge and will be subject to
federal income tax on the same amount, in the same manner and at the same
times as would have been the case if such deposit, defeasance and
discharge had not occurred; and
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we
satisfy other customary conditions precedent described in the applicable
indenture.
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Notices
We will
mail notices to holders of debt securities as indicated in the prospectus
supplement.
Title
We may
treat the person in whose name a debt security is registered as the absolute
owner, whether or not such debt security may be overdue, for the purpose of
making payment and for all other purposes.
Governing
Law
The
indentures and the debt securities will be governed by and construed in
accordance with the laws of the State of New York.
PLAN
OF DISTRIBUTION OF SHELF SECURITIES
We may
sell or issue the shelf securities from time to time in any one or more of the
following ways:
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through
underwriters or dealers;
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·
|
directly
to a limited number of purchasers or to a single
purchaser;
|
|
·
|
in
payment of outstanding invoices for services or products supplied to us,
to a limited number of persons or a single
person.
|
Registration
of the shelf securities covered by this prospectus does not mean, however, that
those securities will necessarily be offered or sold. For each
offering of securities hereunder, we will describe the method of distribution of
such securities, among other things, in a prospectus supplement. A
prospectus supplement will set forth the terms of the offering of the shelf
securities, including:
|
·
|
the
name or names of any underwriters and the respective amounts of any
securities underwritten or purchased by each of
them;
|
|
·
|
the
name or names of any person or persons to whom we sell or issue any
securities;
|
|
·
|
the
initial public offering price and the proceeds we will
receive;
|
|
·
|
any
discounts, commissions or concessions allowed or paid to dealers;
and
|
|
·
|
any
securities exchanges on which the securities may be
listed.
|
Only
underwriters named in the prospectus supplement are deemed to be underwriters in
connection with the shelf securities offered.
If
underwriters are used in the sale of any shelf securities, the securities will
be acquired by the underwriters for their own account and may be resold from
time to time in one or more transactions, including negotiated transactions, at
a fixed public offering price or at varying prices determined at the time of
sale. The securities may be either offered to the public through
underwriting syndicates represented by managing underwriters or by underwriters
without a syndicate. Unless otherwise set forth in the applicable
prospectus supplement, the obligations of the underwriters to purchase the
securities will be subject to certain conditions precedent and the underwriters
will be obligated to purchase all of the securities if any are
purchased. Any initial public offering price and any discounts or
concessions allowed or paid to dealers may be changed from time to
time.
The shelf
securities may be sold or issued directly by us or through agents designated by
us from time to time. Any agent involved in the offer or sale of the
securities in respect of which a prospectus supplement is delivered will be
named, and any commissions payable by us to such agent will be set forth, in the
prospectus supplement. Unless otherwise indicated in the prospectus
supplement, any agent will be acting on a best efforts basis for the period of
its appointment.
We may
authorize underwriters, dealers or agents to solicit offers by institutional
investors, such as commercial banks and investment companies, to purchase the
shelf securities from us at the public offering price set forth in the
prospectus supplement pursuant to delayed delivery contracts providing for
payment and delivery on a specified date in the future. The
conditions to these contracts and the commissions payable for solicitation of
the contracts will be set forth in the applicable prospectus
supplement.
We may
issue shelf securities directly to service providers or suppliers in payment of
outstanding invoices.
Agents
and underwriters may be entitled to indemnification by us against certain civil
liabilities, including liabilities under the Securities Act of 1933, or to
contribution with respect to payments which the agents or underwriters may be
required to make in respect of their liabilities. Agents and
underwriters may be our customers, engage in transactions with us, or perform
services for us in the ordinary course of business.
During
and after an offering through underwriters, the underwriters may purchase and
sell the securities in the open market. These transactions may
include over allotment and stabilizing transactions and purchases to cover
syndicate short positions created in connection with the
offering. The underwriters may also impose a penalty bid, whereby
selling concessions allowed to syndicate members or other broker-dealers for the
offered securities sold for their account may be reclaimed by the syndicate if
such offered securities are repurchased by the syndicate in stabilizing or
covering transactions. These activities may stabilize, maintain or
otherwise affect the market price of the offered securities, which may be higher
then the price that might otherwise prevail in the open market. If
commenced, these activities may be discontinued at any time.
Any
underwriters who are qualified market makers may engage in passive market making
transactions in the securities in accordance with Rule 103 of Regulation
M.
Unless
otherwise specified in the applicable prospectus supplement, securities offered
under this prospectus will be a new issue and, other than the common stock,
which is quoted on the NASDAQ Global Market, will have no established trading
market. We may elect to list any other class or series of securities on an
exchange, and in the case of the common stock, on any additional exchange, but,
unless otherwise specified in the applicable prospectus supplement, we shall not
be obligated to do so. Any underwriters to whom securities are sold for public
offering and sale may make a market in the securities, but the underwriters will
not be obligated to do so and may discontinue any market making at any time
without notice. The securities may or may not be listed on a national securities
exchange or a foreign securities exchange. No assurance can be given as to the
liquidity of the trading market for any of the securities.
We will
bear all costs, expenses and fees associated with the registration of the shares
of common stock.
LEGAL
MATTERS
The
validity of the securities offered will be passed on for us by our counsel,
Graubard Miller, New York, New York.
EXPERTS
The
financial statements and management’s assessment of the effectiveness of
internal control over financial reporting (which is included in Management’s
Report on Internal Control over Financial Reporting) incorporated in this
Prospectus by reference to the Annual Report on Form 10-K for the year ended
December 31, 2007 have been so incorporated in reliance on the report of
PricewaterhouseCoopers LLP, an independent registered certified public
accounting firm, given on the authority of said firm as experts in auditing and
accounting.
WHERE
YOU CAN FIND MORE 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.
|
·
|
Annual
Report on Form 10-K for the fiscal year ended December 31, 2007, filed on
March 17, 2008;
|
|
·
|
Quarterly
Reports on Form 10-Q for the fiscal quarter ended March 31, 2008, June 30,
2008 and September 30, 2008, filed on May 7, 2008, August 11, 2008 and
November 10, 2008, respectively;
|
|
·
|
Current
Reports on Form 8-K dated May 7, 2008, June 6, 2008 and December 4, 2008,
filed on May 8, 2008, June 6, 2008 and December 4, 2008,
respectively;
|
|
·
|
Proxy
Statement dated July 7, 2008, as amended, used in connection with the
annual meeting of shareholders on August 26, 2008;
and
|
|
·
|
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.
|
Any
statement contained in a document filed before the date of this prospectus and
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this prospectus to the extent that a statement contained herein
modifies or supersedes such statement. Any statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this prospectus. Any information that we file after the
date of this prospectus with the SEC will automatically update and supersede the
information contained in this prospectus. Notwithstanding the
foregoing, we are not incorporating any document or portion thereof or
information deemed to have been furnished and not filed in accordance with SEC
rule.
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, 7915 Baymeadows Way, Suite 400, Jacksonville,
Florida 32256.
PART
II
INFORMATION
NOT REQUIRED IN PROSPECTUS
|
Item
14.
|
Other
Expenses of Issuance and
Distribution.
|
The
estimated expenses in connection with the sale of the securities being
registered hereby, are as follows:
|
SEC
registration fee
|
|
$ |
982.50 |
|
|
Legal
fees and expenses
|
|
$ |
15,000.00 |
|
|
Accounting
fees and expenses
|
|
$ |
5,000.00 |
|
|
Miscellaneous
|
|
$ |
2,500.00 |
|
|
Total
|
|
$ |
23,482.50 |
|
|
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.
A list of
the exhibits required by Item 601 of Regulation S-K to be filed as part of this
registration statement is set forth in the Exhibit Index on page
II-7.
(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) and 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
Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume
and price represent no more than a 20 percent change in the maximum aggregate
offering price set forth in the “Calculation of Registration Fee” table in the
effective registration statement;
(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
(1)(i), (1)(ii) and (1)(iii) of this section do not apply if the registration
statement is on Form S-3 and the information required to be included in a
post-effective amendment by those paragraphs is contained in reports filed with
or furnished to the Commission 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, or is contained in a form of prospectus
filed pursuant to Rule 424(b) that is part of the registration
statement.
(2) That,
for the purposes of determining any liability under the Securities Act of 1933,
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.
(5) (i) That,
for the purpose of determining liability under the Securities Act of 1933 to any
purchaser:
(A) Each
prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to
be part of the registration statement as of the date the filed prospectus was
deemed part of and included in the registration statement; and
(B) Each
prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as
part of a registration statement in reliance on Rule 430B relating to an
offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of
providing the information required by Section 10(a) of the Securities Act of
1933 shall be deemed to be part of and included in the registration statement as
of the earlier of the date such form of prospectus is first used after
effectiveness or the date of the first contract of sale of securities in the
offering described in the prospectus. As provided in Rule 430B, for liability
purposes of the issuer and any person that is at that date an underwriter, such
date shall be deemed to be a new effective date of the registration statement
relating to the securities in the registration statement to which that
prospectus relates, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof. Provided, however, that no
statement made in a registration statement or prospectus that is part of the
registration statement or made in a document incorporated or deemed incorporated
by reference into the registration statement or prospectus that is part of the
registration statement will, as to a purchaser with a time of contract of sale
prior to such effective date, supersede or modify any statement that was made in
the registration statement or prospectus that was part of the registration
statement or made in any such document immediately prior to such effective
date.
(6) That,
for the purpose of determining liability of the registrant under the Securities
Act of 1933 to any purchaser in the initial distribution of the
securities:
The
undersigned registrant undertakes that in a primary offering of securities of
the undersigned registrant pursuant to this registration statement, regardless
of the underwriting method used to sell the securities to the purchaser, if the
securities are offered or sold to such purchaser by means of any of the
following communications, the undersigned registrant will be a seller to the
purchaser and will be considered to offer or sell such securities to such
purchaser:
(i) Any
preliminary prospectus or prospectus of the undersigned registrant relating to
the offering required to be filed pursuant to Rule 424;
(ii) Any
free writing prospectus relating to the offering prepared by or on behalf of the
undersigned registrant or used or referred to by the undersigned
registrant;
(iii) The
portion of any other free writing prospectus relating to the offering containing
material information about the undersigned registrant or its securities provided
by or on behalf of the undersigned registrant; and
(iv) Any
other communication that is an offer in the offering made by the undersigned
registrant to the purchaser.
(b) The
undersigned registrant hereby undertakes that, for purposes of determining any
liability under the Securities Act of 1933, each filing of the registrant’s
annual report pursuant to Section 13(a) or Section 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan’s annual report pursuant to Section 15(d) of the Securities Exchange Act of
1934) 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.
(h) Insofar
as indemnification for liabilities arising under the Securities Act of 1933 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 Securities and Exchange Commission such
indemnification is against public policy as 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.
(j)
The undersigned registrant hereby undertakes to file an application for the
purpose of determining the eligibility of the trustee to act under subsection
(a) of Section 310 of the Trust Indenture Act in accordance with the rules and
regulations prescribed by the SEC under Section 305(b)(2) of the Trust Indenture
Act.
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, the registrant has duly
caused this registration statement to be signed on its behalf by the
undersigned, hereunto duly authorized, in Jacksonville, Florida on January 5,
2009.
|
|
PARKERVISION,
INC
|
|
|
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: /s/ Jeffrey L.
Parker
Jeffrey L.
Parker
|
Chief
Executive Officer and Chairman of the Board (Principal Executive
Officer)
|
January
5, 2009
|
| |
|
|
|
By: /s/ Cynthia L.
Poehlman
Cynthia L.
Poehlman
|
Chief
Financial Officer and Secretary (Principal Financial Officer and Principal
Accounting Officer)
|
January
5, 2009
|
| |
|
|
|
By: /s/ David F.
Sorrells
David F.
Sorrells
|
Chief
Technical Officer and Director
|
January
5, 2009
|
| |
|
|
|
By: /s/ William A.
Hightower
William A.
Hightower
|
Director
|
January
5, 2009
|
|
By: /s/ John
Metcalf
John
Metcalf
|
Director
|
January
5, 2009
|
| |
|
|
|
By: /s/ Todd
Parker
Todd Parker
|
Director
|
January
5, 2009
|
| |
|
|
|
By: /s/ William L.
Sammons
William L.
Sammons
|
Director
|
January
5, 2009
|
| |
|
|
|
By: /s/ Robert G.
Sterne
Robert G.
Sterne
|
Director
|
January
5, 2009
|
| |
|
|
|
By: /s/ Nam P.
Suh
Nam P. Suh
|
Director
|
January
5, 2009
|
| |
|
|
|
By: /s/ Papken S. Der
Torossian
Papken S. Der
Torossian
|
Director
|
January
5,
2009
|
EXHIBIT
INDEX
|
1.1
|
Form
of Underwriting Agreement or other similar
agreement.**
|
|
4.1
|
Specimen
Common Stock Certificate.(1)
|
|
4.2
|
Form
of Certificate of Designation of Preferred
Stock.**
|
|
4.4
|
Form
of Indenture for Senior Debt Securities between the Registrant and Trustee
to be designated.*
|
|
4.5
|
Form
of Indenture for Subordinated Debt Securities between the Registrant and
Trustee to be designated.*
|
|
5.1
|
Opinion
of Graubard Miller.*
|
|
10.1
|
Form
of Securities Purchase Agreement or other similar
agreement.**
|
|
12.1
|
Computation
of ratio of earnings to fixed
charges.*
|
|
23.1
|
Consent
of PricewaterhouseCoopers LLP.*
|
|
23.2
|
Consent
of Graubard Miller (included in its opinion filed as Exhibit
5.1).*
|
|
24
|
Power
of Attorney (set forth on signature
page).*
|
|
25
|
Form
T-1 Statement of Eligibility under the Trust Indenture Act of 1939, as
amended, of the Trustee under an
indenture.***
|
____________________
|
**
|
To
be filed, if applicable, subsequent to the effectiveness of this
Registration Statement by an amendment to this Registration Statement or
by incorporation by reference through a Current Report on Form 8-K filed
in connection with an offering of
securities.
|
|
***
|
To
be filed subsequent to the effectiveness of this Registration Statement
pursuant to Section 305(b)(2) of the Trust Indenture Act of 1939, as
amended.
|
|
(1)
|
Incorporated
by reference to Exhibit 4.1 of Registration Statement No.
33-70588-A.
|
II-7