Employment Agreement - Rentrak Corp. and F. Kim Cox
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (hereinafter referred to as the "Agreement") is
made and entered into effective April 20, 1995, by and between RENTRAK
CORPORATION, an Oregon corporation (hereinafter referred to as "Employer"), and
F. KIM COX (hereinafter referred to as "Employee").
W I T N E S S E T H:
WHEREAS, Employer is a publicly held corporation which, in turn, owns one
hundred percent of several subsidiary companies including, but not limited to
Rentrak Home Entertainment, The Pro Image, Inc., Streamlined Solutions, Inc.
also conducting business as Streamlined Information Systems, Dover Aggregates,
Inc., BlowOut Video, Inc., and Mortco, Inc.; and
WHEREAS, Employer desires to employ Employee in the position of Executive
Vice President, and Employee desires to be so employed.
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:
SECTION 1. EMPLOYMENT
1.01 POSITION AND TITLE. Employer shall employ and engage the services
of Employee, in the position of Executive Vice President for the term of this
Agreement as defined in Section 2, INFRA, pursuant to the terms and conditions
set forth in this Agreement.
1.02 DUTIES AND PLACE OF EMPLOYMENT. Employee shall be responsible for,
and perform duties associated with his position as Executive Vice President 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 principal
executive offices which are currently located at 7227 N.E. 55th Avenue,
Portland, Oregon 97218, or such other locations as may be reasonably 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.
SECTION 2. TERM AND TERMINATION
2.01 STATED TERM. Employment shall commence on the effective date of
this Agreement and shall continue for a period of five (5) years ending on April
19, 1999 or until Employee's employment under this Agreement is terminated
pursuant to Section 2.02, Section 2.03, or Section 2.04, INFRA ("Term").
2.02 AT WILL TERMINATION. Notwithstanding anything herein to the
contrary, Employee's employment may be terminated at any time with or without
reason, by Employer upon thirty (30) days written notice to Employee, or by
Employee upon thirty (30) days written notice to Employer.
2.03 FOR CAUSE TERMINATION. Employee's employment may be terminated by
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Employer without notice for "cause." Termination for "cause" is defined for
purposes of this subsection as termination upon: (i) the final conviction of
Employee for a felony involving willful conduct materially injurious, harmful or
detrimental to Employer; or (ii) the final adjudication of Employee in a civil
proceeding for acts or omissions to act involving willful conduct materially
injurious, harmful or detrimental to Employer. For the purposes of this
subsection, "final conviction" and "final adjudication" shall be and mean a
conviction or and adjudication, as the case may be, that is no longer appealable
due to the passage of time or otherwise, and with respect to which a final
judgment has been entered on the judgment roles of the court in which the action
was commenced. Further, for the purposes of this subsection, no act or omission
to act on Employee's part shall be considered "willful" unless done, or omitted
to be dome, by Employee in bad faith and without reasonable belief that
Employee's act of omission was in the best interest of Employer.
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 two (2) 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.
SECTION 3. COMPENSATION
3.01 BASE SALARY. Commencing December 15, 1994, through June 30, 1995
Employee shall be paid an annual base salary in the amount of one hundred forty
thousand dollars ($140,000.00); commencing July 1, 1995 Employee shall be paid
an annual base salary in the amount of one hundred sixty thousand dollars
($160,000)("Base Salary"). The Base Salary shall be paid to Employee in equal
semi-monthly installments in arrears on the seventh (7th) and twenty-second (n)
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 (n) 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
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.
3.02 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.
3.03 STOCK OPTIONS. Upon the commencement of the Term of this Agreement,
Employer shall grant Employee one hundred thirty thousand (130,000) options for
Employer's stock. To the extent allowed under the Internal Revenue Code of 1986
("Code"), the stock options will be granted pursuant to that certain Incentive
Stock Option Agreement, a copy of which is attached to this Agreement as Exhibit
A. The remaining options, if any, not allowed
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as incentive stock options under the Code will be granted as nonqualified
options, copies of which are attached hereto as Exhibit B.
3.04 BENEFITS.
3.04A 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 four (4) weeks of paid vacation during each year of
employment; and (ii) will be eligible to receive pay for
Employer-paid holidays.
3.04B 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, except that the ninety day waiting period
for such insurance benefits shall be waived.
3.04C TUITION REIMBURSEMENT. Employee shall be entitled to
reimbursement for all tuition, enrollment fees, and books pursuant
to Employers education assistance program. Employee shall comply
with all Employer's terms, policies and procedures regarding its
education assistance program.
3.04D 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 or its corporate officers generally.
SECTION 4. PAYMENTS UPON TERMINATION OF EMPLOYMENT
4.01 TERMINATION FOR CAUSE. In the event of the termination of
Employee's employment by Employer for cause as defined in Section 2.03, SUPRA,
or in the event of termination of Employee's employment by Employee, Employer
shall pay to Employee only the amount of compensation accrued pursuant to
Section 3.01, SUPRA, through and including the date of termination.
4.02 TERMINATION FOR DEATH OR DISABILITY. In the event of the
termination of Employee's employment due to his death or disability, Employer
shall pay to Employee or Employee's estate or legal representative, as the case
may be, the amount of compensation accrued pursuant to Section 3.01, SUPRA, as
of the date of termination plus a lump sum severance payment equal to one
hundred eighty (180) days Base Salary in effect as of the date of termination.
4.03 OTHER TERMINATION. In the event of termination of Employee's
employment by Employer other than as provided in Section 4.01 or 4.02, SUPRA,
Employer shall pay Employee the amount of compensation accrued pursuant to
Section 3.01, SUPRA, as of the date of termination plus severance payments in an
amount equal to one years Base Salary in effect as of the date of termination,
payable in installments as if still employed; subject however, to Employee
demonstrating that he is using his best efforts to find employment of comparable
status within one hundred (100) miles of wherever last located. For purposes of
this Agreement, "employment" shall be defined to include self-
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employment and the offering of consulting services. In the event Employee does
not use, or cannot demonstrate that he is using, his best efforts to obtain
other employment severance payments shall cease. If Employee does use his best
efforts to obtain other employment and is successful in obtaining such
employment, severance payments 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.
4.04 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.
SECTION 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.
SECTION 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
7227 N.E. 55th Avenue
P.O. Box 18888
Portland, Oregon 97218
Attn: Ron Berger
//
//
//
COPY TO: Andrea Bushnell
Corporate Director of Legal and Business
Affairs
7227 N.E. 55th Avenue
P.O. Box 18888
Portland, Oregon 97218
EMPLOYEE: F. Kim Cox
8036 S.E. 141st Court
Portland, Oregon 97236
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 7. MISCELLANEOUS PROVISIONS.
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7.01 ATTORNEYS' FEES. 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.
7.02 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.
7.03 INTEGRATION. Employee has simultaneously executed an Incentive
Stock Option Agreement (a copy of which is attached hereto as Exhibit A), a
Nonqualified Stock Option Agreement (a copy of which is attached hereto as
Exhibit B) and has previously executed an Employee Confidentiality and
Noncompetition Agreement (a copy of which is attached hereto as Exhibit C) which
remain in effect and are 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 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.
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 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.
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.
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
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not be construed against any of the parties.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
EMPLOYER: EMPLOYEE:
RENTRAK CORPORATION, I acknowledge that I have
an Oregon Corporation read and agree to the foregoing
Agreement including, without
By:/s/ Ron Berger limitation, the provision
Ron Berger, President allowing termination of my employment
"at will" by Employer in Section 2.01,
SUPRA.
/s/ F. Kim Cox
F. Kim Cox