AMENDED AND RESTATED EMPLOYMENT AGREEMENT
This Amended and Restated Employment Agreement (this
"Agreement") is made and entered into as of this ____ day of
______________, 1995 by and between RENTRAK CORPORATION, an Oregon
corporation ("Employer"), and XXX XXXXXX ("Employee").
WHEREAS, Employer currently employs Employee in the capacity
of Chairman of the Board of Directors ("Chairman"), President and
Chief Executive Officer and Employee is one of the key executives
of the Employer;
WHEREAS, Employer and Employee have entered into an
Employment Agreement dated as of June 1, 1994 (the "Employment
Agreement") and Employer and Employee desire to modify the terms
of the Employment Agreement upon the terms and subject to the
conditions of this Agreement;
WHEREAS, the terms of this Agreement shall supersede in its
entirety the terms of the Employment Agreement;
WHEREAS, Employer considers it essential to the best
interests of its shareholders to xxxxxx the continuous employment
of Employee;
WHEREAS, the Board of Directors of Employer (the "Board")
recognizes that, as is the case with many publicly-held
corporations, the possibility of a Change of Control (as defined
below) may exist and that such possibility, and the uncertainty
and questions which it may raise among management, may result in
the departure or distraction of management personnel to the
detriment of Employer and its shareholders;
WHEREAS, the Board has determined that appropriate steps
should be taken to reinforce and encourage the continued attention
and dedication of members of Employer's management, including
Employee, to their assigned duties without distraction in the face
of potentially disturbing circumstances arising from the
possibility of Change of Control; and
WHEREAS, the Board has determined that it is in the best
interests of Employer and its shareholders to clarify certain
provisions of the Employment Agreement in order to more
effectively carry out the purposes of Employment Agreement and
avoid potential disputes in connection with the enforcement of the
Employment Agreement following a Change of Control.
NOW, THEREFORE, in consideration of the promises and mutual
covenants herein contained, and other good and valuable
consideration, the receipt of which is hereby acknowledged, the
parties hereby agree as follows:
1. EMPLOYMENT.
1.1 Position and Title.
Employer hereby employs and engages the services of Employee
for the position of Chairman of the Board of Directors, Chief
Executive Officer and President of Employer, during the Term (as
the term is defined in Section 2 of this Agreement) of this
Agreement, on the terms and conditions hereinafter set forth.
Employee further agrees to accept election and to serve during the
Term of this Agreement in such positions and as an officer and/or
director of any subsidiary or affiliate of Employer, without any
additional compensation therefor, except as set forth in this
Agreement, when and if elected to any such position by the
shareholders of Employer or by the Board of Directors of Employer,
as the case may be. This employment shall be exclusive to
Employee except that with majority approval of the Board of
Directors of Employer and the written consent of Employee,
Employer may (i) elect a new Chairman provided that Employee shall
remain as the President and Chief Executive Officer of Employer or
(ii) elect a new President provided that Employee shall remain as
Chairman and Chief Executive Officer. Employee agrees to serve
Employer during the Term of this Agreement as provided herein and
that the employment relationship specified herein shall be the
exclusive employment of Employee.
1.2 Duties and Place of Employment.
(a) Employee shall perform all duties customarily
performed by executives of publicly-held companies engaged in a
business similar to Employer's business and who are employed in
the same capacity as Employee pursuant to this Agreement.
Employee shall devote his full business time during normal
business hours to the business and affairs of Employer, use his
best efforts to promote the interests of Employer and, use his
best efforts to perform faithfully and efficiently
responsibilities assigned to Employee hereunder. To the extent
Employee has performed personal, civic or charitable activities or
served on corporate boards or committees not significantly
interfering with the performance of his responsibilities to
Employer prior to the date of this Agreement, the continued
conduct of such activities (or the conduct of activities similar
in nature and scope thereto) subsequent to the date of this
Agreement shall not be deemed to interfere with the performance of
Employee's responsibilities to the Company. It is expressly
agreed that Employee's continuing service on any boards or
committees with which he shall be connected, as a member or
otherwise, as of the date of this Agreement, or any such service
approved by Employer during the Term of this Agreement, shall, not
be deemed to interfere with the performance of Employee's services
to Employer pursuant to this paragraph (a). Employee shall report
directly and only to the Board of Directors or an executive
committee of the Board of Directors. Employee shall perform his
duties, at Employer's principal executive offices which are
currently located at 0000 X.X. 00xx Xxxxxx, Xxxxxxxx, Xxxxxx
00000, or such other location as shall be mutually agreed upon by
Employee and Employer. Subject to the terms of this Agreement,
Employee shall comply promptly and faithfully with Employer's
reasonable instructions, directions, requests, rules and
regulations. Employer shall not be deemed to have waived the
right to require Employee to perform any duties hereunder by
assigning Employee to any other duties or services.
(b) After a Change of Control (as defined below)
during the Term of this Agreement, Employee shall continue to
serve Employer in the same capacity and have the same authority,
responsibilities and status as he had as of the date immediately
prior to the Change of Control. After a Change of Control,
Employee's services shall be performed at the location where
Employee was employed as of the date immediately prior to the
Change of Control, or at such other location as may be mutually
agreed between Employer and Employee.
(c) For purposes of this Agreement, a "Change of
Control" shall be deemed to have occurred upon the first
fulfillment of the conditions set forth in any one of the
following four paragraphs:
(1) any "person" (as such term is defined in
Sections 3(a)(9) and 13(d)(3) of the Securities Exchange Act
of 1934, as amended (the "Exchange Act")), other than a
trustee or other fiduciary holding securities under an
employee benefit plan of Employer, is or becomes a
beneficial owner (within the meaning of Rule 13d-3
promulgated under the Exchange Act), directly or indirectly,
of securities of Employer, representing twenty-five percent
(25%) or more of the combined voting power of Employer's
then outstanding securities; or
(2) a majority of the directors elected at any
annual or special meeting of stockholders are not
individuals nominated by Employer's then incumbent Board; or
(3) the shareholders of Employer approve a merger or
consolidation of Employer with any other corporation, other
than a merger or consolidation which would result in the
voting securities of Employer outstanding immediately prior
thereto continuing to represent (either by remaining
outstanding or by being converted into voting securities of
the surviving entity) at least seventy-five percent (75%) of
the combined voting power of the voting securities of
Employer or such surviving entity outstanding immediately
after such merger or consolidation, or the shareholders of
Employer approve a plan of complete liquidation of Employer
or an agreement for the sale or disposition by Employer of
all or substantially all of its assets.
2. TERM.
The term ("Term") of this Agreement shall commence on June
1, 1994 and shall terminate on May 31, 1999, unless sooner
terminated pursuant to Section 5, provided that in the event of a
Change of Control, this Agreement shall terminate on the later of
May 31, 1999 and two years after such Change of Control, unless
sooner terminated pursuant to Section 5. Notwithstanding the
foregoing, if the parties hereto shall, after such termination
date, continue to perform this Agreement as provided hereunder,
the Term of this Agreement shall automatically be extended until
terminated by either party giving one hundred twenty (120) days
prior written notice to the other at any time thereafter.
3. COMPENSATION.
As full compensation for all services to be performed by
Employee pursuant to this Agreement, Employer agrees to pay
Employee the compensation set forth in this Section 3, in addition
to such other benefits and compensation as are provided elsewhere
in this Agreement.
3.1 Base Salary.
(a) Employee shall be paid an annual base salary of
$300,000 for the first year of employment under this Agreement.
The annual base salary shall be paid to Employee in equal semi-
monthly installments in arrears on the seventh (7th) and twenty-
second (22nd) day of each month, commencing as of the month in
which this Agreement is executed. Should the seventh (7th) or the
twenty-second (22nd) day of any month not be a business day,
Employee's semi-monthly installment of base salary otherwise due
on such date shall be paid to Employee on the immediately
preceding business day. Employee's initial base salary shall be
increased pursuant to Section 3.1(b) hereof and, any increase in
Employee's annual base salary shall in no way limit or reduce any
other obligation of Employer hereunder. Once established at an
increased specified rate, Employee's annual base salary hereunder
shall not thereafter be reduced.
(b) During the Term hereof, the base salary payable
to Employee pursuant to Section 3.1(a) hereof shall be increased
on each anniversary of the date of the commencement of the Term of
this Agreement as follows:
From June 1, 1995 to May 31, 1996 - $320,000
From June 1, 1996 to May 31, 1997 - $340,000
From June 1, 1997 to May 31, 1998 - $360,000
From June 1, 1998 to May 31, 1999 - $390,000
Section 3.1(a) of this Agreement shall thereupon be deemed to be
amended without further action by Employer or Employee and
Employee's base salary shall be as set forth above effective as of
each anniversary date of this Agreement.
(c) Nothing herein contained shall preclude the
Board of Directors of Employer from authorizing the payment of
additional compensation to Employee over and above the base salary
at any time payable to him under this Agreement, whether as a
bonus or otherwise. The payment of such additional compensation
shall not operate as an amendment obligating Employer to make any
similar payment or to pay additional compensation at any future
time or for any future period or be deemed to affect the base
salary in any manner.
3.2 Annual Bonus.
In addition to the base salary, Employee shall be awarded,
for each of Employer's fiscal years during the Term of this
Agreement commencing with fiscal year ending March 31, 1995, an
annual bonus (the "Annual Bonus") as determined by this Section
3.2. The Annual Bonus for fiscal year 1995 shall equal five
percent (5%) of the amount by which "Employer's Pre-Tax Profits"
(as that term is defined in Annex A attached hereto) exceeds $1
million (the "Bonus Base"). Thereafter, for each subsequent year,
the Bonus Base shall be adjusted to equal the. actual Employer's
Pre-Tax Profits for the prior fiscal year plus 15%; or $1,000,000,
whichever is greater. All income below the Bonus Base shall not
qualify for or be used in determining the Annual Bonus. In
subsequent fiscal years during the term of this Agreement, an
Annual Bonus equal to 5% of the amount by which Employer's Pre-Tax
Profits for the current fiscal year exceeds the Bonus Base shall
be paid to Employee. The Annual Bonus shall be paid in cash to
Employee on the earlier of (a) the date Employer files its annual
report on Form 10-K with the Securities and Exchange Commission,
or (b) the date that is one hundred twenty (120) days after the
end of Employer's fiscal year.
3.3 Stock Option.
In connection with and as a further inducement to Employee
to enter into this Agreement, the Employer's Stock Option
Committee has awarded to Employee certain stock options, copies of
which are attached hereto as Exhibit A.
3.4 Additional Benefits.
3.4.1 Business Expenses.
During the Term of this Agreement, Employee shall be
entitled to receive prompt reimbursement for all reasonable
expenses incurred by Employee in the performance of his duties
pursuant to this Agreement in accordance with the policies and
procedures of Employer now or hereinafter in effect. During the
Term of this Agreement, Employer shall furnish Employee with an
automobile to be used by Employee in the performance of his duties
hereunder and shall pay such expenses and other amounts with
respect thereto as are customarily paid for senior executives in
corporations substantially similar to Employer. Such automobile
shall be of a price and class similar to that currently used by
Employee.
3.4.2 Insurance.
During the Term of this Agreement, Employer shall provide,
at no expense to Employee, a term life insurance policy on the
life of Employee and payable to Employee's designated beneficiary
in accordance with the current policies and procedures of Employer
in effect, and shall continue in force the disability insurance
now in effect. Employer shall further provide Employee during the
Term of this Agreement with group accident, medical, dental and
hospital insurance coverage in accordance with the policies and
procedures of Employer in effect from time to time and to the
extent permissible by law, Employer shall extend medical and
health insurance coverage to Employee's wife and child dependents.
Further, Employer shall use its best efforts to provide Employee
with Directors and Officers Liability Insurance appropriate to the
nature of his responsibilities hereunder, provided that Employer
is able to obtain such insurance coverage for all of its directors
and officers at reasonable expense, as determined by the Board of
Directors in its sole discretion. For five years following a
Change of Control, Employer shall use its best efforts to continue
to provide directors' and officers' liability insurance covering
Employee (with respect to events occurring prior to termination of
Employment) on terms no less favorable (in terms of coverage and
amounts) than those of such insurance in effect immediately prior
to the Change of Control. Following a Change of Control, Employer
will indemnify and hold harmless Employee (and advance expenses)
to the full extent provided in the Articles of Incorporation and
Bylaws of Employer as in effect immediately prior to the Change of
Control.
3.4.3 Vacation and Holidays.
Employee shall be entitled to three (3) weeks paid vacation
during each full year of employment. In addition to the above
vacation, Employee shall be entitled to the number of paid
holidays provided for under the current policies and procedures of
Employer in effect from time to time.
3.4.4 Benefits Generally Offered.
In addition to any other compensation or benefits to be
received by Employee pursuant to the terms of this Agreement,
Employee shall be entitled to participate in all employee benefits
which Employer may from time to time provide its key officers.
4. RESTRICTIVE COVENANTS.
4.1 Non-Competition.
(a) During the term of Employee's employment under
this Agreement and for eighteen (18) months thereafter, Employee
shall not own or have any interest directly in, or act as an
officer, director, agent, employee or consultant of, or assist in
any way or in any capacity, any person, firm, association,
partnership, corporation, or other entity which is a wholesale
distributor of home video cassettes or related media or is engaged
in the specialty retail sports apparel business or is otherwise
engaged in a business that is substantially similar to and/or
competes with the business then engaged in by Employer (a
"Competitive Entity") , in any geographical area where Employer
engages in such business. The restrictions of this Section
prohibiting ownership in a competitive business shall not apply to
Employee's ownership of less than ten percent (10%) of the
publicly traded securities of any Competitive Entity.
(b) While the Employer and Employee acknowledge that
the restrictions contained in this Section 4.1 are reasonable, in
the unlikely event that any court should determine that any of the
restrictive covenants contained in Section 4.1(a), or any part
thereof, is unenforceable because of the duration of such
provision or the area covered thereby, such court shall have the
power to reduce the duration or area of such provision and, in its
reduced form, such provision shall then be enforceable and shall
be enforced.
4.2 Delivery of Records.
Upon termination of Employee's employment with Employer,
Employee shall deliver to Employer all books, records, lists,
brochures and all other property belonging to Employer or
developed by Employee in connection with the business of Employer.
4.3 Confidentiality.
Except in connection with the performance of his duties
hereunder, Employee shall not at any time during or after his
employment with Employer, reveal, divulge or make known to any
person, firm or corporation any confidential knowledge or
information which is treated as confidential and secret by
Employer and which relates to Employer's business (the
"Confidential Information"), including, but not limited to, any
confidential facts concerning any suppliers, purchasers, methods,
processes, developments, schedules, lists or loans of or relating
to the business of Employer and Employee will retain all
Confidential Information which he has acquired or which he will
acquire during his employment; provided, however, that this
restriction shall not apply to any knowledge, information or fact
held by or known to Employee that is generally known to the trade
through no fault of Employee or which was acquired by Employee
other than in his capacity as Employee; provided, further, that
this restriction shall not apply to any knowledge, information or
fact that, in the unqualified opinion of Employee's counsel,
Employee is required to reveal or disclose as a result of court
order, subpoena or similar legal duress or if disclosure is
otherwise required by law. Employee shall give Employer prompt
written notice of Employee's intention to disclose such
information along with a copy of any such order or subpoena, and
Employee shall give Employer a reasonable opportunity (under the
circumstances) prior to disclosure to seek a protective order.
Employee shall not be required to seek any protective order or
commence any process to do so.
4.4 Survival.
The provisions of this Section 4 shall survive the
termination of this Agreement and shall inure to the benefit of
Employer, its successors and assigns.
5. TERMINATION.
5.1 Termination for Cause. Employee's employment
may be terminated by Employer immediately for "Cause" as that term
is defined in Section 6.2.1.
5.2 Termination for Death or Disability. Employee's
employment may be terminated by Employer immediately upon
Employee's "Disability" as that term is defined in Section 6.2.2
or death.
5.3 [Intentionally Omitted]
5.4 Termination for Good Reason or by Employer.
(a) Employee's employment may be terminated by
Employee (i) within 120 days after a Change of Control or (ii) at
any time for "Good Reason" as that term is defined in Section
6.2.3. Employee's continued employment shall not constitute
consent to, or a waiver of rights with respect to, any act or
failure to act constituting Good Reason hereunder.
(b) Employee's employment under the terms of
Agreement may be terminated by Employer in the exercise of its
sole discretion at any time upon written notice to Employee.
6. PAYMENTS UPON TERMINATION OF EMPLOYMENT.
6.1 Payments.
(a) In the event of the termination of Employee's
employment by Employer pursuant to Section 5.1 for Cause, within
ten days of termination Employer shall pay to Employee the full
amount of base salary accrued through the date of termination
pursuant to Section 3.1 and the amount of bonus, if any, accrued
through the date of termination pursuant to Section 3.2. No other
compensation shall be due or payable under this Agreement in the
event of a termination for Cause.
(b) In the event of the termination of Employee's
employment by Employer pursuant to Section 5.2 due to the death or
Disability of Employee, within ten days of termination Employer
shall pay to Employee or his estate or legal representative, in a
lump sum, the amount of base salary and bonus accrued through the
date of termination pursuant to Sections 3.1 and 3.2 plus an
additional amount equal to one year's base salary pursuant to
Section 3.1. During the period of Employee's disability, but
prior to Employee's termination of Employment, Employee shall be
entitled to receive all compensation as set forth in this
Agreement.
(c) In the event of the termination of Employee's
employment by Employee pursuant to Section 5.4(a) or following a
Change of Control or Potential Change of Control, the termination
of Employee's employment by Employer pursuant to Section 5.4(b),
within ten days of termination Employer shall pay to Employee, in
a lump sum, the greater of (i) all base salary and bonus which
Employer is obligated to pay to Employee pursuant to Sections 3.1
and 3.2 for the remainder of the Term of this Agreement (with
bonus being calculated as the greater of the bonus amount paid
with respect to the immediately preceding fiscal year or the
average of the bonus amounts paid for the three immediately
preceding fiscal years), or (ii) three times the sum of (A) the
base salary which Employer is obligated to pay to Employee
pursuant to Section 3.1 during the current fiscal year plus (B)
the greater of the bonus amount which Employer paid with respect
to the immediately preceding fiscal year or the average of the
bonus amounts which Employer paid for the three immediately
preceding fiscal years.
(d) In the event of the termination of Employee's
employment by Employer pursuant to Section 5.4(b) (prior to a
Change of Control or Potential Change of Control), Employer shall
pay to Employee all base salary and bonus which Employer is
obligated to pay to Employee pursuant to Sections 3.1 and 3.2 for
the remainder of the Term of this Agreement, when and at such
times as such compensation would otherwise have been earned and
paid to Employee pursuant to the terms of this Agreement, as if
Employee had remained in the employ of Employer through the entire
term of this Agreement.
(e) In the event of a termination of Employee's
employment, all stock options held by Employee as described in
Section 3.3 of this Agreement shall be treated in the manner
described in the stock option agreements entered into between
Employer and Employee.
(f) Employee is entitled to elect to continue the
insurance described in Section 3.4.2 of this Agreement during a
period of two (2) years following an event of termination
described in subsections (c) and (d) of this Section 6.1. If
Employee elects to continue such coverage, Employer shall
reimburse Employee for the premiums paid by Employee for such
insurance as such premiums are paid until such time as the
continued insurance terminates or Employee obtains replacement
full-time employment and is covered by such new employer's group
medical health and life insurance plan with benefits substantially
similar to those provided by Employer's insurance plan and without
any pre-existing conditions, exclusions, limitations or
restrictions, whichever occurs first. Such reimbursement shall be
reduced for an amount equivalent to the amounts charged Employee
for health coverage immediately prior to the occurrence of the
Change of Control.
(g) Employee, in his sole and absolute discretion,
shall have the right to decline all or a portion of any payments
under this Agreement.
6.2 Definitions.
6.2.1 Cause.
"Cause" shall mean (i) an act or acts of personal dishonesty
taken by Employee and intended to result in substantial personal
enrichment of Employee at the expense of Employer, or (ii) the
conviction of Employee of a felony.
6.2.2 Disability.
"Disability" shall mean Employee's inability due to
incapacity due to physical or mental illness to perform Employee's
duties for a consecutive period of at least 90 days or for at
least 180 days in a twelve-month period.
6.2.3 Good Reason.
"Good Reason" shall mean (i) the failure of Employer to
comply with the terms of this Agreement, or (ii) the occurrence
(without Employee's express written consent), within two (2) years
after any Change of Control, or after any Potential Change of
Control (treating all references in subsections (a) through (g)
below to a "Change of Control" as references to a "Potential
Change of Control"), of any one of the following acts by Employer,
or failures by Employer to act:
(a) the assignment to Employee of any duties
inconsistent with Employee's status as an executive officer of
Employer or a substantial adverse alteration in the nature or
status of Employee's title, position, duties, functions, working
conditions or responsibilities from those in effect immediately
prior to the Change of Control other than any such alteration
primarily attributable to the fact that Employer may no longer be
a public company, including, among other things, removal or
failure to nominate Employee as a member of the Board if Employee
is serving as such a member immediately prior to the occurrence of
a Change of Control;
(b) a reduction by Employer in Employee's annual
base salary as in effect on the date hereof or as the same may be
increased from time to time;
(c) the relocation of Employer's principal executive
offices to a location more than thirty-five miles from the
location of such offices immediately prior to the Change of
Control or Employer's requiring Employee to be based anywhere
other than Employer's principal executive offices except for
required travel on Employer's business to an extent substantially
consistent with Employee's business travel obligations immediately
prior to the Change of Control;
(d) the failure by Employer, without Employee's
consent, to pay to Employee any portion of Employee's current
compensation;
(e) the failure by Employer to continue in effect
any compensation plan in which Employee participates immediately
prior to the Change of Control which is material to Employee's
total compensation unless an equitable arrangement (embodied in an
ongoing substitute or alternative plan) has been made with respect
to such plan, or the failure by Employer to continue Employee's
participation therein (or in such substitute or alternative plan)
on a basis not materially less favorable, both in terms of the
amount of benefits provided and the terms and conditions of such
benefits, including, without limitation, the level of Employee's
participation relative to other participants, as such relative
level existed at the time of the Change of Control;
(f) the failure by Employer to continue to provide
Employee with benefits substantially similar to those enjoyed by
Employee under any of Employer's pension, life insurance, medical,
health and accident, or disability plans in which Employee was
participating immediately prior to the Change of Control, the
taking of any action by Employer which would directly or
indirectly materially reduce any of such benefits or deprive
Employee of any material fringe benefit enjoyed by Employee
immediately prior to the Change of Control, or the failure by
Employer to provide Employee with the number of paid vacation days
to which Employee is entitled on the basis of years of service
with Employer in accordance with Employer's normal vacation policy
in effect immediately prior to the Change of Control; or
(g) the failure of Employer to obtain a satisfactory
agreement from any successor to assume and agree to perform this
Agreement, as contemplated in Section 13 hereof.
6.2.4 Potential Change of Control. A "Potential
Change of Control" shall mean a potential change of control of
Employer, which shall be deemed to have occurred if the conditions
set forth in any one of the following three events shall occur:
(i) Employer enters into an agreement, the consummation of which
would result in the occurrence of a Change of Control; (ii) any
person (including Employer) publicly announces an intention to
take or to consider taking actions which, if consummated, would
constitute a Change of Control; or (iii) the Board adopts a
resolution to the effect that, for purposes of this Agreement, a
Potential Change of Control has occurred.
6.3 Disputes Concerning Termination
(a) If within fifteen (15) days after any notice of
termination for Good Reason is given by Employee pursuant to
Section 5.4(a), Employer notifies Employee that a dispute exists
concerning the termination, the date of termination of this
Agreement shall be the date on which the dispute is finally
determined, either by mutual written agreement of the parties or
by a final determination; provided further that the date of
termination shall be extended by a notice of dispute from Employer
only if such notice is given in good faith and Employer pursues
the resolution of such dispute with reasonable diligence.
Employee shall have the right to notify Employer that a dispute
exists within fifteen (15) days after any notice of termination is
given by Employer, and shall have the right to dispute any denial
of the payments and benefits described in this Agreement and to
dispute the amount of such payments and benefits. Following a
Change of Control, a Employer shall provide all witnesses and
evidence reasonably required by Employee to present Employee's
case. Employer shall pay to Employee all reasonable expenses and
legal fees incurred by Employee as a result of a termination in
seeking to obtain or enforce any right or benefit provided by this
Agreement (whether or not Employee is successful in obtaining or
enforcing such right or benefit).
(b) If a purported termination by Employee for Good
Reason occurs and such termination is disputed, Employer shall do
either of the following.
(1) If Employee continues to provide services,
Employer shall continue to pay Employee the full
compensation in effect when the notice giving rise to
the dispute was given (including, but not limited to,
salary and estimated bonus) and continue Employee as a
participant in all compensation, benefit and insurance
plans in which Employee was a participant when the
notice giving rise to the dispute was given, until the
dispute is finally resolved; or
(2) If Employee is no longer providing
services, Employer shall pay Employee fifty percent
(50%) of the amount specified in Sections 6.1(a), (b),
(c) and (d), and Employer will provide Employee with
the other benefits provided in Section 6, if, but only
if, Employee agrees in writing that if the dispute is
resolved against Employee, Employee will promptly
refund to Employer all payments Employee receives
under this paragraph (b) plus interest at the rate
provided in Section 1274(d) of the Internal Revenue
Code of 1986, as amended (the "Code"), compounded
quarterly. If the dispute is resolved in Employee's
favor, promptly after resolution of the dispute
Employer will pay Employee the sum which was withheld
during the period of the dispute plus interest at the
rate provided in Section 1274(d) of the Code,
compounded quarterly.
Amounts paid under this paragraph (b) shall offset against and
reduce other amounts due under this Agreement. If the dispute is
resolved by a determination that Employee did not have Good
Reason, this Agreement, in accordance with its terms, will
continue to apply to the circumstances of Employee's employment by
Employer and any termination thereof.
(c) If there is a termination by Employer followed by
a dispute as to whether Employee is entitled to the payments and
other benefits provided under this Agreement, then, during the
period of that dispute Employer will pay Employee fifty percent
(50%) of the amount specified in Sections 6.1(a), (b), (c) and
(d), and Employer will provide Employee with the other benefits
provided in Section 6, if, but only if, Employee agrees in writing
that if the dispute is resolved against Employee, Employee will
promptly refund to Employer all payments Employee receives under
this paragraph (c) plus interest at the rate provided in Section
1274(d) of the Internal Revenue Code of 1986, as amended (the
"Code"), compounded quarterly. If the dispute is resolved in
Employee's favor, promptly after resolution of the dispute
Employer will pay Employee the sum which was withheld during the
period of the dispute plus interest at the rate provided in
Section 1274(d) of the Code, compounded quarterly.
7. PERSONAL NATURE.
This Agreement is personal, and is being entered into based
upon the singular skill, qualifications and experience of
Employee. Employee shall not assign this Agreement or any rights
hereunder without the express written consent of Employer.
Employee hereby grants to Employer the right to use Employee's
name, likeness and/or biography in connection with the services
performed by Employee hereunder and in connection with the
advertising or exploitation of any project with respect to which
Employee performs services hereunder.
8. NOTICES.
Any and all notices or other communications required or
permitted by this Agreement or by law shall be deemed duly served
and given when personally delivered to the party to whom such
notice or communication is directed or, in lieu of such personal
service, when deposited in the United States mail, certified,
return receipt requested, first class postage prepaid, addressed
as follows:
EMPLOYER: RENTRAK CORPORATION
0000 X.X. 00xx Xxxxxx
P.O. Box 18888
Xxxxxxxx, Xxxxxx 00000
EMPLOYEE: XXX XXXXXX
X.X. Xxx 0000
Xxxxxxx, Xxxxxx 00000
Each party may change its address for purposes of this
Section by giving written notice of such change in the manner
provided for in this Section.
9. GOOD FAITH.
All approvals required to be given by any party shall be
given or denied in good faith and may not be unreasonably denied.
Each party shall use due diligence in its attempt to accomplish
any act to be accomplished by that party.
10. ATTORNEY FEES.
Except as provided in Section 6.3, in the event that it
should become necessary for any party to bring an action,
including arbitration, either at law or in equity, to enforce or
interpret the terms of this Agreement, each party shall pay its
own legal fees in connection with such action.
11. APPLICABLE LAW/VENUE.
This Agreement is executed and intended to be performed in
the State of Oregon and the laws of such State shall govern its
interpretation and effect. If suit is instituted by any party
hereto by any other party hereto for any cause or matter arising
from or in connection with the respective rights or obligations of
the parties hereunder, the sole jurisdiction and venue for such
action shall be the Superior Court of the State of Oregon in and
for the County of Multnomah.
12. INTEGRATED AGREEMENT.
This Agreement constitutes the entire agreement of the
parties with respect to the subject matter of this Agreement and
supersedes all prior agreement between the parties with respect
thereto.
13. HEIRS AND ASSIGNS.
Subject to any restriction on assignment contained herein,
this Agreement shall be binding upon and shall inure to the
benefit of the respective party's heirs, successors and assigns.
Employer will require any successor (whether direct or indirect,
by purchase, merger, consolidation or otherwise) to all or
substantially all the business and/or assets of Employer, by
agreement in form and substance satisfactory to Employee, to
expressly assume and agree to perform this Agreement in the same
manner and to the same extent that Employer would be required to
perform it if no such succession had taken place. This Agreement
shall not be terminated by Employer's voluntary or involuntary
dissolution or by any merger or consolidation in which Employer is
not the surviving or resulting corporation, or on any transfer of
all or substantially all of the assets of Employer. In the event
of any such merger, consolidation, or transfer of assets, the
provisions of this Agreement shall be binding on and inure the
benefit of the surviving business entity or the business entity to
which such assets shall be transferred.
14. SEVERABILITY.
Any provision in this Agreement which is, by competent
judicial authority, declared illegal, invalid or unenforceable in
any jurisdiction shall, as to such jurisdiction, be ineffective to
the extent of such illegality, invalidity or unenforceability
without invalidating the remaining provisions hereof or affecting
the legality, validity or enforceability of such provision in any
other jurisdiction. The parties hereto agree to negotiate in good
faith to replace any illegal, invalid or unenforceable provision
of this Agreement with a legal, valid and enforceable provision
that, to the extent possible, will preserve the economic bargain
of this Agreement, or otherwise to amend this Agreement, including
the provision relating to choice of law, to achieve such result.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the day and year first above written.
EMPLOYER: EMPLOYEE:
RENTRAK CORPORATION,
an Oregon Corporation
BY:
F. XXX XXX XXX XXXXXX
Executive Vice President
BY:
XXXXX XXXXXXX
Chairman, Compensation Committee,
Board of Directors