Employment Agreement - Rentrak Corp. and Ed Barnick
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
This AMENDED AND RESTATED EMPLOYMENT AGREEMENT (hereinafter
referred to as the "Agreement") is made and entered into as of
this 1st day of January, 1996 by and between RENTRAK CORPORATION,
an Oregon corporation (hereinafter referred to as "Employer"),
and ED BARNICK (hereinafter referred to as "Employee").
W I T N E S S E T H:
WHEREAS, Employer currently employs Employee in the capacity
of Vice President-Distribution and Employee is one of the key
executives of the Employer and desires to be so employed;
WHEREAS, Employer and Employee have entered into an
Employment Agreement effective January 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 foster 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 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:
S1. EMPLOYMENT
01 Position and Title. Employer shall employ and engage
the services of Employee, in the position of Vice President-
Distribution for the Term of this Agreement as defined in Section
2, pursuant to the terms and conditions set forth in this
Agreement.
02 Duties and Place of Employment.
(a) Employee shall be responsible for, and perform
duties associated with his position as Vice President-
Distribution and 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; and (iii) perform faithfully and efficiently his
responsibilities. Employee shall perform his duties at the
Employer's distribution center, which is currently located in
Wilmington, Ohio, 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.
(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.
S2. TERM and TERMINATION
01 Stated Term. Employment commenced on January 1, 1996
and shall end on December 31, 1999 (the "End Date") or until
Employee's employment under this Agreement is terminated pursuant
to this Section 2 ("Term").
02 At Will Termination. Notwithstanding anything herein
to the contrary, Employee's employment may be terminated by
Employer at any time without cause upon thirty (30) days written
notice to Employee.
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.
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
two (2) year period during the Term of this Agreement. Nothing
in this Section 2.04 is intended to violate any Federal or Oregon
State law regarding parental or family leave policies or any
other applicable law.
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 not 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 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 7.04.
06 Other Termination by Employee. Employee's employment
may be terminated by Employee at any time without Good Reason
upon thirty (30) days written notice to Employer.
S3. COMPENSATION
01 Base Salary. Commencing on January 1, 1996, Employee
shall be paid an annual base salary in the amount of ninety
thousand eight hundred eighty dollars ($90,880.00) (as initially
established and as increased as set forth below, the "Base
Salary"). During the Term hereof, the Base Salary payable to
Employee shall be automatically increased by four percent (4%) on
January 1, 1997, and by three percent (3%) on each subsequent
January 1st, without action by Employer or Employee. The sum of
the salary plus the automatic percentage of increase for that
year shall become the annual salary in effect for calculating the
following year's automatic increase. 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 semimonthly 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 seventh (7th) day of the month falls on a Sunday, the
semi-monthly installment shall be paid on the next following
business day). Employee's Base Salary may be increased in the
discretion of Employer during the Term of this Agreement.
02 Bonus Compensation. Nothing herein shall preclude the
Employer from authorizing the payment of additional compensation
to Employee over and above the Base Salary at any time payable to
him under his 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 Employee's Base Salary in any
manner. Employee will participate in whatever bonus plan is
adopted by Employer including any cash bonus pools established
from time to time by Employer for Corporate Executives.
03 Stock options. For the fiscal year ended March 31,
1996 and every March 31st thereafter during the term of this
Agreement, Employer shall grant Employee an option to purchase no
fewer than ten thousand (10,000) shares of Employer's stock. In
addition, Employer granted Employee an option to purchase ten
thousand (10,000) shares of Employer's stock at the average of
the high and low prices of the Stock on January 1, 1994. The
stock options were granted pursuant to that certain Incentive
Stock Option Agreement, a copy of which is attached to this
Agreement as Exhibit A. Additional options shall be granted to
Employee pursuant to the terms of the Incentive Stock Option
Agreement.
04 Benefits.
A Vacation and Holiday Pay. As of the effective
date of this Agreement, Employee will be entitled to:
(i) accrue vacation time at the rate of three (3) weeks
of paid vacation during each year of employment; and
(ii) will be eligible to receive pay for Employer-paid
holidays.
B Insurance. Employee shall be entitled to
medical, life, worker's compensation, social security
and state unemployment insurance benefits as provided
under Employer's then current terms, policies and
procedures. Employee shall not be entitled to
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.
E Sign-Up Bonus. Employee shall be entitled to a
"sign-up bonus" of Sixty Four Thousand Dollars
($64,000), payable in four (4) equal installments of
Sixteen Thousand Dollars ($16,000). Employee
acknowledges that he was paid Sixteen Thousand Dollars
($16,000) on January 1, 1996. Employee shall be paid
Sixteen Thousand Dollars ($16,000) on January 1, 1997,
1998, and 1999, provided Employee is then still
employed by Employer.
3.04F Personal Travel. For each twelve month
period covered by this Agreement, Employer shall
reimburse Employee for the cost of up to seven non-
business related round trip coach class tickets between
Wilmington, Ohio and Portland, Oregon. Employee will
"book" such travel through Employer's designated travel
agent. Employee shall provide full substantiation for
travel costs to be reimbursed. Employer shall pay all
valid reimbursements travel claims within ten (10) days
of receiving substantiation.
3.04G Country Club Benefits. The Employer has
paid for a membership at a local area country club of
Employee's selection and has paid to date and will
continue to pay during the term of this Agreement for
the dues of said membership.
3.04H Moving Expenses. In the event of the
termination of Employee's employment by Employee
pursuant to Section 2.05 or by Employer, other than
pursuant to Section 2.03 or 2.04, Employer shall
reimburse up to twenty-five thousand dollars ($25,000)
of Employee's expenses incurred to move back to
Portland, Oregon. Employee shall submit full
substantiation for all expenses to be reimbursed.
Employer shall pay all valid claims within ten (10)
days of receipt of substantiation. The amount of the
reimbursement shall be reduced by any reimbursement
paid by Employee's new employer if his employment with
Employer terminates.
3.04I Automobile Lease. Employer shall pay for
one automobile lease for Employee throughout the term
of this Agreement, said lease not to exceed $500 per
month. Employer will also reimburse employee for the
insurance, license, and maintenance expenses required
for the leased vehicle. Employee shall provide full
substantiation for vehicle costs to be reimbursed.
Employer shall pay all valid reimbuursements for
vehicle claims within ten (10) days of receiving
substantiation.
3.04J 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 benefits which Employer may from time to time
provide its employees generally.
S4. PAYMENTS UPON TERMINATION OF EMPLOYMENT
01 Termination for Cause. In the event of the termination
of Employee's employment by Employer for cause pursuant to
Section 2.03 within ten 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.
02 Termination for Death or Disability. In the event of
the termination of Employee's employment pursuant to Section 2.04
due to his death or disability, within ten days of termination
Employer shall pay to Employee or 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. 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 death or disability.
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) six months'
Base Salary which Employer is obligated to pay to Employee
pursuant to Section 3.01 during the current fiscal year.
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 severance payments in an amount equal to six
months' Base Salary at the rate at which Employer is obligated to
pay to 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, 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.
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 a such a termination.
06 Insurance Benefits. Employee is entitled to elect to
continue the insurance described in Section 3.04B during a period
of two (2) years following an event of termination described in
Section 2.05 and a period of six (6) 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.
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.
08 Stock Options. In the event of a termination of
Employee's employment, all stock options held by Employee shall
be treated in the manner described in the stock option agreements
entered into between Employer and Employee. Such agreements
shall provide that all of Employee's previously issued stock
options in the Company shall fully vest 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.
09 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.
S5. 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.
SECTION 6. RESTRICTIVE COVENANTS
6.01 Non-Competition. 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 entity which is
competitive with the business then engaged in by Employer, in any
area where Employer engages in business (a "Competitive Entity").
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.
6.02 Delivery of Records. Upon termination of Employee's
employment with Employer, Employee shall deliver to Employer all
books, records, lists, brochures and other property belonging to
Employer or developed in connection with the business of
Employer.
6.03 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 or 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
knowledge and information which he has acquired or which he will
acquire during his employment therewith relating to such
suppliers, purchasers, methods, processes, developments,
schedules, lists or plans and the business of Employer for the
sole benefit of Employer, its successors and assigns; provided,
however, that this restriction shall not apply to any knowledge,
information or fact held by or known to Employee that is
available from sources other than 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 upon Employee's receipt of any
such order or subpoena and a reasonable opportunity (in the
circumstances) prior to disclosure to seek a protective order.
Employee shall not be required to seek any protective order or
commence any proceeding to do so.
6.04 Survival. The provisions of this Section 6 shall
survive the termination of the basic term of this Agreement and
shall inure to the benefit of Employer, its successors and
assigns.
SECTION 7. 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
7227 N.E. 55th Avenue
P.O. Box 18888
Portland, Oregon 97218
Attn: Ron Berger
EMPLOYEE: Ed Barnick
P.O. Box 993
Wilmington, Ohio 45177
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.
SECTION 8. MISCELLANEOUS PROVISIONS.
8.01 Attorneys' Fees; Disputes Concerning Termination. (a)
Subject to Section 8.01(b), in the event that it should be 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.
(1) 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.
(2) If Employee is no longer providing
services, Employer shall pay Employee fifty percent
(50%) of the amount specified in Sections 4.03 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.
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.
8.02 Applicable Law and 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 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.
8.03 Integration. Employee has executed an Incentive Stock
Option Agreement (a copy of which is attached hereto as Exhibit
A) and may have executed certain Nonstatutory Stock Option
Agreements (which, if executed, are attached hereto as Exhibit
B). 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
all prior agreements, negotiations, or understandings, whether
oral or written, between the parties with respect thereto.
8.04 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 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.
8.05 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 or
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.
8.06 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.
8.07 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.
8.08 Execution. Each of the parties hereto shall execute,
acknowledge and deliver any instrument necessary to carry out the
provisions of this Agreement.
8.09 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.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement effective as of the day and year first above written.
EMPLOYER:
RENTRAK CORPORATION,
an Oregon corporation
By: s/s Ron Berger
Ron Berger, 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
2.01.
s/s Ed Barnick
Ed Barnick