Employment Agreement - Rentrak Corp. and Ron Berger
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
This Amended and Restated Employment Agreement (this
"Agreement") is made and entered into as of this ______ day of
______________, 1998 by and between RENTRAK CORPORATION, an
Oregon corporation ("Employer"), and RON BERGER ("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
Amended and Restated Employment Agreement dated as of September
11, 1995 (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 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.
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 One Airport Center, 7700 N.E.
Ambassador Place, Portland, Oregon 97220, 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 as 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 an 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
April 1, 1998 and shall terminate on March 31, 2003, 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 March 31, 2003 or 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
$400,000 through March 31, 1999 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 semimonthly 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 by the greater of four percent (4%) or the change
in the Consumer Price Index for the preceding calendar year.
Section 3.l(a) of this Agreement shall thereupon be deemed to be
amended without further action by Employer or Employee.
(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, 1998,
an annual bonus (the "Annual Bonus") as determined by this
Section 3.2. The Annual Bonus for each fiscal year 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 the Employer's Pre-Tax Profits in the prior fiscal year
(the "Bonus Base"). All income below the Bonus Base shall not
qualify for or be used in determining the Annual Bonus. 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, except that
Employer agrees that Employee and his spouse may travel first
class to business functions as Employee deems appropriate.
Except as specifically authorized by the Board, Employee's spouse
may travel first class for only one international trip each year.
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
purchase, at no expense to Employee, a term life insurance policy
on the life of Employee in the amount of $10 million, payable to
Employer. Employer shall also reimburse Employee or the trust
established by Employee for premiums paid by Employee or the
trust for a term life insurance policy on the life of Employee in
the amount of $5 million, payable to Employee's designated
beneficiary or beneficiaries. Employer shall also continue in
force the disability insurance now in effect for Employee.
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 four (4) 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
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 by Employee.
(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 this
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 Employee's 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 or following a
Change of Control or Potential Change of Control, or 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) Employer and Employee will negotiate a new five-
year agreement in good faith prior to January 1, 2002.
Alternatively, Employer may notify Employee prior to such date
that Employer does not intend to extend Employee's employment.
In the event of non-renewal or termination of this Agreement for
any reason other than for Cause as defined in Section 6.2.1,
Employee shall receive one year's salary continuance at the Base
rate following expiration of this Agreement in addition to any
compensation payable under 6.1(c).
(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 vest immediately.
(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) are in addition to all
other amounts due under this Agreement and shall not be offset
against or reduce any 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. l(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
One Airport Center
7700 N.E. Ambassador Place
Portland, Oregon 97220
EMPLOYEE: RON BERGER
P.O. Box 2190
Gresham, Oregon 97030
Each party may change its address for purposes of this
Section by giving written notice of such change in the manner
provided for in his 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. ATTORNEYS' FEES.
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.
15. INDEMNIFICATION.
Employer shall indemnify Employee to the fullest extent
permitted by law for and against any and all cost, loss, expense
and liability including, without limitation, attorneys' fees,
incurred by Employee as a result of the performance of his duties
for Employer. Such obligation to indemnify shall include,
without limitation, indemnification against any and all claims
arising out of the Non-Disparagement Agreement entered into on
July 10, 1997 between Employer, Employee, Kim Cox and Michael R.
Lightbourne.
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. KIM COX RON BERGER
Executive Vice President
STEVE ROBERTS
Chairman, Compensation
Committee,
Board of Directors