EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (hereinafter referred to as the
"Agreement") is made and entered into as of this 14th day of August, 1998, by
and between RENTRAK CORPORATION, an Oregon corporation (hereinafter referred to
as "Employer"), and XXXXXXX X. XXXX (hereinafter referred to as "Employee").
WITNESSETH:
WHEREAS, Employer desires to employ Employee in the capacity of Vice
President, Investor Relations;
WHEREAS, Employee will be one of the key executives of the Employer
and desires to be employed in the capacity of Vice President, Investor
Relations; and
WHEREAS, Employer and Employee desire to enter into an Employment
Agreement memorializing the terms and conditions of the employment
relationship.
NOW, THEREFORE, in consideration of the mutual promises, covenants
and agreements herein contained, the recitals set forth hereinabove which by
this reference are incorporated herein, and other good and valuable
consideration, the receipt of which is hereby acknowledged, the parties hereby
agree as follows:
1. EMPLOYMENT
1.01 Duties and Place of Employment.
(a) Employee shall be responsible for, and perform duties
associated with his position as Vice President, Investor Relations or other
duties as may be directed by the Employer, from time to time. Employee shall:
(i) devote his full business time during normal business hours to the business
and affairs of Employer; (ii) use his best efforts to promote the interests of
Employer; (iii) perform faithfully and efficiently his responsibilities.
Employee shall perform his duties at the Employer's principal executive offices
which are currently located at One Airport Center, 7700 N.E. Ambassador Place,
Portland, Oregon, or such other locations as may be directed by Employer from
time to time. Subject to the terms of this Agreement, Employee shall comply
promptly and faithfully with all of Employer's policies, instructions,
directions, requests, rules and regulations.
(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, during the Term of this Agreement, 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.
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(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 AND TERMINATION
2.01 Stated Term. Employment shall commence on September 1, 1998,
and will end on August 31, 2000 (the "End Date"), or until Employee's employment
under this Agreement is terminated pursuant to this Section 2 ("Term").
2.02 At Will Termination. Notwithstanding anything herein to the
contrary, Employee's employment may be terminated at any time without cause upon
thirty (30) days written notice to Employee.
2.03 For Cause Termination. Employee's employment may be terminated
by Employer for "cause" without notice. Termination for "cause" is defined for
purposes of this subsection as termination for: (i)material failure of Employee
to substantially perform the reasonable and attainable instructions of Employer
as to his duties hereunder; or (ii) an act or acts of misconduct by Employee
which is determined by the Employer to be materially injurious to Employer
monetarily or otherwise; or (iii) material violation by Employee of any
provision of this Agreement. For purposes of this subsection, termination for
"cause" shall not include any act or failure to act on Employee's part if done
or omitted to be done by him in demonstrable good faith and with the reasonable
belief that his act or omission was in the best interest of the Employer or
pursuant to an express policy of Employer at the time of such act or omission.
2.04 Disability or Death. Employee's employment shall be terminable
immediately upon Employee's death or disability. "Disability" is defined for
purposes of this subsection as absence from Employee's full time duties with
Employer as a result of Employee's incapacity due to physical or mental illness
for ninety (90) days calculated on a cumulative basis during any one (1)
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year period during the Term of this Agreement. Nothing in this Section 2.04 is
intended to violate any Oregon State law regarding parental or family leave
policies or any other applicable law.
2.05 Termination by Employee for Good Reason. Employee's employment
may be terminated by Employee at any time for "Good Reason" as that term is
defined below. 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. "Good Reason" shall mean (i) a material breach by
Employer of the terms of this Agreement; provided that Employee shall have no
right to terminate this Agreement pursuant to this clause (i) unless Employer
has had at least 15 days to cure such failure, or (ii) the occurrence (without
Employee's express written consent), within two (2) years after any 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;
(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 (35) 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
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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 7.04.
2.06 Other Termination by Employee. Employee's employment may be
terminated by Employee at any time without Good Reason upon thirty (30) days
prior written notice to Employer.
3. COMPENSATION
3.01 Base Salary. Commencing September 1, 1998, through August 31,
1999, Employee shall be paid an annual base salary in the amount of One Hundred
Twenty Thousand Dollars ($120,000) ("Base Salary"). From September 1, 1999,
through August 31, 2000, Employee shall be paid an annual base salary in the
amount of One Hundred Twenty Eight Thousand Dollars ($128,000). The 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
first semi-monthly pay period following the effective date of this Agreement.
Should the seventh (7th) or the twenty-second (22nd) day of any month not be a
business day, Employee's semi-monthly installment of the Base Salary otherwise
due on such date shall be paid to Employee on the business day closest to the
date such semi-monthly installment is due (i.e., if the seventh (7th) day of the
month falls on a Saturday, the semi-monthly installment shall be paid on the
preceding business day or if the 7th day of the month falls on a Sunday, the
semi-monthly installment shall be paid on the next following business day).
3.02 Bonus Compensation. Employee shall be entitled to an annual
cash bonus as set forth in this Section 3.2. Said bonus is in lieu of
participation in any and all other bonus programs, including any cash bonus
pools, established from time to time by Employer for Corporate Officers and
shall be based on the sole criterion of stock price appreciation according to
the following schedule:
(a) For stock price appreciation of less than One Dollar
($1.00) per share, including any loss in share price, no bonus ($0);
(b) For stock price appreciation of at least One Dollar ($1.00)
per share but less than two-dollars ($2.00) per share, a bonus equal to five
percent (5%) of Employee's Base Salary;
(c) For stock price appreciation of at least two-dollars
($2.00) per share but less than Two Dollars and Seventy-Six Cents ($2.76) per
share, a bonus equal to ten percent (10%) of Employee's Base Salary;
(d) For stock price appreciation of at least Two Dollars and
Seventy-Six Cents ($2.76) per share but less than Three Dollars and Fifty-One
Cents ($3.51) per share, a bonus equal to fifteen percent (15%) of Employee's
Base Salary;
(e) For stock price appreciation of at least Three Dollars and
Fifty-One Cents ($3.51) per share but less than Four Dollars and One Cent
($4.01) per share, a bonus equal to twenty percent (20%) of Employee's Base
Salary; and
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(f) For stock price appreciation of Four Dollars and One Cent
($4.01) per share or more, a bonus equal to Thirty percent (30%) of Employee's
Base Salary.
The bonus is payable September 15, 1999, for the period from
September 1, 1998, through August 31, 1999 (the "First Period"), and September
15, 2000, for the period from September 1, 1999, through August 31, 2000 (the
"Second Period"). The bonus owed for the First Period shall be determined by
subtracting the opening price of Rentrak common stock on September 1, 1998, from
the average closing price of said stock for the 30 trading days immediately
preceding August 31, 1999, referring to the above schedule for the appropriate
bonus percentage, and multiplying that percentage by Employee's Base Salary for
the first year of this Agreement. The bonus owed for the Second Period shall be
determined by subtracting the opening price of Rentrak common stock on September
1, 1999, from the average closing price of said stock for the 30 trading days
immediately preceding August 31, 2000, referring to the above schedule for the
appropriate bonus percentage, and multiplying that percentage by Employee's Base
Salary for the second year of this Agreement.
3.03 Benefits
(a) Vacation and Holiday Pay. As of the effective date of this
Agreement, Employee will be entitled to: (i) take vacation from September 28
through October 2, 1998, and January 5 through January 9, 1999, to (ii) accrue
vacation time at the rate of twenty-one (21) days of paid vacation during each
year of employment; and (iii) will be eligible to receive pay for Employer-paid
holidays.
(b) Insurance. Employee shall be entitled to medical, dental,
life, flexplan, employee stock purchase plan, 401k plan, pre-paid legal plan,
worker's compensation, social security and state unemployment insurance benefits
as provided under Employer's then current terms, policies and procedures.
Employee shall also be entitled to officers' disability insurance benefits. 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.
(c) Tuition Reimbursement. Employee shall be entitled to
reimbursement for all tuition, enrollment fees, and books pursuant to Employer's
education assistance program. Employee shall comply with all Employer's terms,
policies and procedures regarding its education assistance program.
(d) 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.
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(e) Moving Expenses. Employer will directly pay to the moving
company selected by Employee the cost of shipping Employee's household goods
from Lawrence, Kansas, to Portland, Oregon. Employer will also reimburse
Employee for travel costs incurred by Employee and his immediate family in
relocating from Lawrence, Kansas, to Portland, Oregon, and for one night's
lodging prior to and one night's lodging after the move. The total amount of
such moving, travel, and lodging expenses shall be reimbursed in an amount not
to exceed Sixteen Thousand Dollars ($16,000). In the event that the cost of
moving, travel, and lodging is less than Sixteen Thousand Dollars ($16,000),
Employer shall pay to Employee on September 1, 1998, the difference between
Sixteen Thousand Dollars ($16,000) and the actual cost of the move. Employee
agrees that this Section establishes Employer's complete liability for
Employee's relocation to Portland, Oregon, and agrees not to submit to Employer
any expenses associated with the move in addition to those referenced herein.
(f) Miscellaneous Benefits. 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 any employee or
officer(s) benefits which Employer may from time to time provide its employees
or officer(s) generally.
3.04 Stock Options. Upon commencement of the Term of this Agreement,
Employer shall grant Employee Ten Thousand (10,000) shares of Employer's stock
with an exercise price equal to the closing price of Rentrak common stock on the
date of grant. Said options shall vest at a rate of Twenty-Five percent (25%)
per year during Employee's employment by Employer. Said options shall remain
exercisable for a period of Ten (10) years from the issue date.
In addition to the aforementioned options, Employee shall be granted
additional options for Five Thousand (5,000) shares per grant on April 1, 1999,
and April 1, 2000. Said options shall carry an exercise price equal to the
closing price of Rentrak common stock on the date of grant, shall vest at a rate
of Twenty-Five percent (25%) per year during Employee's employment by Employer,
and shall remain exercisable for a period of ten years.
4. PAYMENTS UPON TERMINATION OF EMPLOYMENT
4.01 Termination for Cause. In the event of the termination of
Employee's employment by Employer pursuant to Section 2.03 within Ten (10)
days of termination Employer shall pay to Employee only the Base Salary
accrued pursuant to Section 3.01 through and including the date of
termination. No other compensation shall be due or payable under this
Agreement in the event of a termination for Cause.
4.02 Termination for Death or Disability.
(a) Termination for Death. In the event of the termination of
Employee's employment pursuant to Section 2.04 due to his death, within ten days
of termination Employer shall pay to Employee's estate or legal representative,
as the case may be, in a lump sum, the Base Salary accrued pursuant to Section
3.01 through and including the date of termination plus a lump sum severance of
Ninety (90) days Base Salary at the rate in effect on the date of Employee's
death. Employer shall also convey to Employee's estate or legal representative
all options granted to Employee during his employment, regardless of whether or
not said options vested prior to Employee's death. Said options shall remain
exercisable for a period of One (1) year from the date of
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death. No other compensation shall be due or payable under this Agreement in the
event of a termination due to the Employee's death.
(b) Termination for Disability. In the event of the termination
of Employee's employment pursuant to Section 2.04 due to his disability, within
ten days of termination Employer shall pay to Employee or his legal
representative, as the case may be, in a lump sum, the Base Salary accrued
pursuant to Section 3.01 through and including the date of termination. 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. No other compensation shall be due or payable under this
Agreement in the event of a termination due to the Employee's disability.
4.03 Termination by Employer Without Cause After Change of Control
or by Employee for Good Reason. In the event of the termination of Employee's
employment by Employer pursuant to Section 2.02 within two years after a Change
of Control or by Employee pursuant to Section 2.05, within ten days of
termination, Employer shall pay to Employee, in a lump sum, the lesser of (i)
all Base Salary which Employer is obligated to pay to Employee pursuant to
Section 3.01 through the End Date or (ii) one year of Base Salary which Employer
is obligated to pay to Employee pursuant to Section 3.01 during the current
fiscal year.
4.04 Other Termination by Employer. In the event of termination of
Employee's employment by Employer pursuant to Section 2.02 prior to a Change of
Control or more than two years after a Change of Control, Employer shall pay
Employee the Base Salary accrued pursuant to Section 3.01 as of the date of
termination plus a severance payment in an amount equal to six months' Base
Salary at the rate at which Employer is obligated to pay Employee pursuant to
Section 3.01 during the current fiscal year, payable in installments as if still
employed; provided, however, that during the period that Employer is making
severance payments pursuant to this Section 4.04, Employer shall have the right
to request Employee to provide reasonable evidence that he is using his best
efforts to obtain other employment of comparable status in the Portland
metropolitan area, and in the event that Employee fails to provide such
reasonable evidence, then Employer shall not be obligated to pay any severance
payments; and provided further that if Employee is successful in obtaining such
employment, the amount of severance payments that would have been payable after
the time that Employee obtains such employment shall be reduced by the amount of
any remuneration received from such employment. For the purposes of this
Agreement, "remuneration" shall be defined to include cash payments, the face
value of any promissory notes issued to Employee regardless of the terms of
payment or whether payments are ever received, stock or stock options valued as
of the day granted, or any other compensation given in any form whatsoever.
4.05 Other Termination by Employee. In the event of the termination
of Employee's employment by Employee pursuant to Section 2.06 within ten days of
termination, Employer shall pay to Employee only the amount of Base Salary
accrued pursuant to Section 3.01 through and including the date of termination.
No other compensation shall be due or payable under this Agreement in the event
of such a termination.
4.06 Insurance Benefits. Employee is entitled to elect to continue
the insurance as described in Section 3.03(b) for a period of two years
following an event of termination described
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in Section 2.05 and a period of six months following an event of termination
described in Section 2.02. 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.
4.07 Other Compensation. Except as set forth in this Section 4, no
other compensation shall be due or payable to Employee upon termination of his
employment.
4.08 Right to Decline Payments. Employee, in his sole and absolute
discretion, shall have the right to decline all or a portion of any payments
under this Agreement.
5. 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 which may be withheld with or without reason. 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.
6. 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
One Airport Center
0000 X.X. Xxxxxxxxxx Xxxxx
Xxxxxxxx, Xxxxxx 00000
Attn: Xxx Xxxxxx
EMPLOYEE: Xxxxxxx X. Xxxx
0000 Xxxxxxx Xxxx Xxxxx
Xxxxxxxx, 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 herein.
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7. MISCELLANEOUS PROVISIONS
7.01 Attorney Fees; Disputes Concerning Termination.
(a) Subject to Section 7.01(b), 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 attorneys' fees, including those incurred in resolving
the dispute prior to initiation of any litigation and at trial and on any
appeal.
(b) If within Fifteen (15) days after any notice of termination
for Good Reason is given by Employee pursuant to Section 2.05, 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.
Following a Change of Control, Employer shall provide all witnesses and evidence
reasonably required by Employee to present Employee's case. If a purported
termination by Employer within two years after a Change of Control or by
Employee for Good Reason occurs and such termination is disputed, 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).
(c) If a purported termination by Employer within two years
after a Change of Control or by Employee for Good Reason occurs and such
termination is disputed, Employer shall do either of the following:
(i) So long as 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; provided that Employee's right to continue to provide such
services is solely within the discretion of Employer, and nothing
herein shall prohibit Employer from terminating such services.
(ii) If Employee is no longer providing services, Employer
shall pay Employee Fifty percent (50%) of the amount specified in
Sections 4.3 and Employer will provide Employee with the other
benefits provided in Section 4.06 if, but only if, Employee agrees
in writing that if the dispute is resolved against Employee,
Employee will promptly refund to Employer all payments specified in
Section 4.03 that 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.
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Amounts paid under this paragraph (c) 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.
7.02 Applicable Law and Venue. This Agreement is executed and
intended to be performed largely 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 or by any other party 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 Circuit Court of
the State of Oregon in and for the County of Multnomah.
7.03 Integration. Employee has executed an Employee Confidentiality
and Noncompetition Agreement (a copy of which is attached hereto as Exhibit A)
which remains in effect and is incorporated into the terms and conditions of
employment under this Agreement. Except as set forth in the preceding sentence,
this Agreement constitutes the entire agreement of the parties with respect to
the subject matter of this Agreement and supersedes and replaces all prior
agreements, negotiations, or understandings, whether oral or written, between
the parties with respect thereto.
7.04 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 of 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 to the benefit of the surviving business entity or
the business entity to which such assets shall be transferred.
7.05 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 that, to the extent possible, will preserve the economic
bargain of this Agreement, or otherwise to amend this Agreement.
7.06 Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed an original, and the counterparts shall together
constitute one and the same agreement, notwithstanding that all of the parties
are not signatory to the original or the same counterpart.
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7.07 Captions. The headings and captions herein are inserted solely
for the purpose of convenience of reference and are not intended to govern,
limit, or aid in the construction of any term or provision hereof.
7.08 Execution. Each of the parties hereto shall execute,
acknowledge and deliver any instrument necessary to carry out the provisions of
this Agreement.
7.09 Construction. This Agreement has been prepared by legal counsel
for Employer. Employee has been advised and by his execution hereof
acknowledges, that he has the right to and should have this Agreement reviewed
by his own separate legal counsel. This Agreement has been negotiated at arms'
length with the benefit of or opportunity to seek legal counsel and,
accordingly, shall not be construed against any of the parties.
7.10 No Disparagement or Breach of Confidentiality and
Noncompetition. In the event that Employee's employment terminates under this
Agreement in any manner whatsoever, Employee agrees that, except under
compulsion of legal process, he will make no oral or written comments about
Employer or its business for a period of one year following termination of his
employment. In the event that Employee breaches this provision of this
Agreement, or violates the terms of the Employee Confidentiality and
Noncompetition Agreement executed by him, then all severance obligations which
Employer may then have under this Agreement shall immediately cease and Employee
shall be owed nothing under this Agreement other than wages and benefits earned
through the date of the termination of his employment.
IN WITNESS WHEREOF, the parties have executed this Agreement
effective as of the date first written above.
EMPLOYER:
Rentrak Corporation,
an Oregon corporation
By: /s/ Xxx Xxxxxx
------------------------
Xxx Xxxxxx, President
I acknowledge that I have read and agree to the foregoing Agreement, including,
without limitation, the provision allowing termination of my employment "at
will" by Employer in Section 2.02.
/s/ Xxxxxxx X. Xxxx
--------------------------
Xxxxxxx X. Xxxx
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ADDENDUM TO EMPLOYMENT AGREEMENT
THIS CHANGE IN CONTROL ADDENDUM TO EMPLOYMENT AGREEMENT ("Addendum"), dated June
8, 2000, is made by and between Rentrak Corporation, an Oregon corporation (the
"Company"), and Xxxxxxx X. Xxxx (the "Employee").
WHEREAS, the Company considers it essential to the best interests of the Company
to xxxxxx the continued employment of its management personnel; and
WHEREAS, the Company recognizes that, as is the case with many publicly-held
corporations, the possibility of a Change of Control (as defined below) exists
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 the Company; and
WHEREAS, the Board has determined that appropriate steps should be taken to
reinforce and encourage the continued attention and dedication of members of the
Company's management, including the Executive, to their assigned duties without
distraction in the face of potentially disturbing circumstances arising from the
possibility of a Change of Control;
WHEREAS, the Company and Employee executed an Employment Agreement ("Employment
Agreement") on August 14, 1998;
NOW, THEREFORE, in consideration of the promises and the mutual covenants
contained herein, the Company and the Employee hereby amend their Employment
Agreement as follows:
1. Term. Employee's Employment Agreement is hereby extended by two years
beginning on August 31, 2000, and ending on August 31, 2002 (the "End Date"), or
until Employee's employment under his Employment Agreement is terminated
pursuant to Section 2 of that Agreement.
2. Severance. If Employee voluntarily terminates his employment without
"Good Reason" (as defined by Executive's Employment Agreement) within two (2)
months following a Change of Control, Employee shall be eligible to receive the
following payment in proportion to Employee's years' of service to the Company.
Specifically, Employee shall be paid one week of Employee's base salary for each
full year that Employee has been employed with the Company. In no case, however,
shall this payment amount to less than two (2) months' of Employee's base
salary. This payment shall be subject to all normal withholdings and deductions.
Employee acknowledges that voluntary termination by the Employee without Good
Reason at any time following a Change of Control, shall not constitute "Good
Reason" as defined by Section(s) 2.05 of his/her Employment Agreement. Employee
further acknowledges that such termination shall not entitle him to any rights
or benefits provided by Section 4.03 of his Employment Agreement.
3. Change of Control. For purposes of this Addendum, a "Change of Control"
shall be defined pursuant to Executive's Employment Agreement.
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4. Confidentiality, Proprietary, Trade Secret and Non-Competition. Employee
acknowledges that this Change of Control Addendum is only a modification of the
Change of Control provision of his existing Employment Agreement already in
effect and that it in no way alters Employee's obligations under any Agreements,
including, but not limited to, the Employee Confidentiality and Noncompetition
Agreement which remains in full force and effect.
IN WITNESS WHEREOF, the Company has caused this Addendum to be executed on its
behalf by its duly authorized officers, and Employee has set his hand, as of the
date first written above.
XXXXXXX X. XXXX RENTRAK CORPORATION
/s/ Xxxxxxx X. Xxxx By: /s/F. Xxx Xxx
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Date: 6/6/00 Title: President
Date: 6/15/00
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