Employment Agreement - Rentrak Corp. and Ronald Giambra
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT is entered into effective as of July 1, 2002,
by and between RENTRAK CORPORATION, an Oregon corporation ("Company"), and
RONALD GIAMBRA ("Executive"). RECITALS
Company and Executive desire to enter into an Employment Agreement
setting forth the terms and conditions of Executive's employment with Company.
AGREEMENT
In consideration of the mutual covenants and agreements set forth in this
Agreement, Company and Executive agree as follows:
1. Employment
1.1 Term. Company agrees to employ Executive to serve as Vice-President
of Company's Theatrical Operations division and to serve in such additional or
different position or positions not inconsistent with that position as Company
and Executive mutually agree. The term of employment will be for a period (the
"Employment Period") commencing on the effective date of this Agreement and
expiring June 30, 2005, unless earlier terminated as set forth in this
Agreement.
1.2 Duties and Responsibilities. Executive will report directly to
Christopher Aronson, Senior Vice-President of Company's Theatrical Operations
Division. Executive will perform such duties on behalf of Company and its
Theatrical Operations division as may be assigned from time to time by Company's
Senior Vice President - Theatrical Operations.
1.3 Location. The principal locations at which Executive will perform
services for Company will be at Company's Theatrical Operations office in the in
Los Angeles, California, area. Executive will do such traveling as may be
required from time to time in the performance of his duties under this
Agreement.
1.4 Outside Activities. During his employment under this Agreement,
Executive will devote his full business time, energies, and attention to the
business and affairs of Company, and to the promotion and advancement of its
interests. Executive will perform his services faithfully, competently, and to
the best of his abilities and will not engage in professional or personal
business activities that may require an appreciable portion of Executive's time
or effort to the detriment of Company's business.
1
<PAGE>
1.5 Application of Corporate Policies. Executive will, except as
otherwise provided in this Agreement, be subject to Company's rules, practices,
and policies applicable generally to Company's executive employees as set forth
in Company's Employee Handbook, as such rules, practices, and policies may be
revised from time to time by the Board.
2. Compensation
2.1 Base Salary. Executive will be paid a base salary ("Base Salary") at
the annual rate of $135,000 (effective May 1, 2002). The annual Base Salary will
be reviewed by the Company's Senior Vice-President-Theatrical Operations on or
before April 1 of each year (commencing in 2003), unless Executive's employment
has been terminated earlier pursuant to this Agreement, to determine if such
Base Salary should be increased for the following year in recognition of
services to Company. 2.2 Payment. Payment of all compensation to Executive will
be made in accordance with the relevant Company policies in effect from time to
time, including normal payroll practices, and will be subject to all applicable
employment and withholding taxes. 2.3 Bonuses. -------
2.3.1 Annual Bonus. Executive will participate, together with
Company's other executives, in Company's discretionary annual bonus program and
will be eligible to receive an annual bonus in such amounts, if any, as are
determined by the Board in its discretion.
3. Other Employment Benefits
3.1 Business Expenses. Upon submission of itemized expense statements in
the manner specified by Company, Executive will be entitled to reimbursement for
reasonable travel and other reasonable business expenses duly incurred by
Executive in the performance of his duties under this Agreement. Executive's
travel expenses, and all other expenditures by Executive in connection with his
services for Company, must be strictly in accordance with the budget for the
Theatrical Operations approved by Company. Executive will have an active role in
the creation and periodic revision of such budget.
3.2 Benefit Plans. Executive will be entitled to participate in Company's
medical and dental plans, life and disability insurance plans, retirement plans,
and other benefit plans offered by Company to its executives during the term of
this Agreement (collectively the "Benefit Plans") pursuant to the respective
terms and conditions of such Benefit Plans. Nothing in this Agreement will
preclude Company or any affiliate of Company from terminating or amending any
Benefit Plan or benefit program from time to time.
2
<PAGE>
3.3 Personal Time Off. Executive will receive an annual grant of 208
hours of credit (or such higher number of hours as are credited to Company's
other executives) under Company's Personal Time Off (PTO) program.
3.4 Stock Options. Effective May 8, 2002, Company granted Executive an
option (the "Option") to purchase 10,000 shares of Company's common stock
pursuant to the terms of Company's 1997 Equity Participation Plan (the "Plan").
The Option will be evidenced by a stock option agreement (the "Option
Agreement") dated May 8, 2002 (the "Grant Date"), subject to the provisions of
the Plan and the following terms and conditions:
(a) The option purchase price is $ 5.73 per-share;
(b) The Option is initially not exercisable and will vest and become
exercisable in full on the first anniversary of the Grant Date;
(c) The Option will not continue to vest after Executive's death,
disability, or termination of employment with Company for any reason;
(d) The Option will be an incentive stock option (within the meaning
of Internal Revenue Code ("IRC") ss. 422);
(e) The Option will become fully and immediately exercisable upon (i)
a change in control of Company (as that term is defined in the Plan or in
Executive's Option Agreement), (ii) any sale of all or a substantial
portion of Company's business operations, (iii) a sale by Company of its
Theatrical Operations business, or (4) a termination of Executive's
employment by Company without Cause or by Executive for Good Reason (as
those terms are defined in Section 4.3.2 and 4.5.2); and
(f) The Option will be subject to such other terms and conditions as
determined by Company's Compensation Committee and set forth in the
Option Agreement.
4. Termination of Employment Prior to a Change in Control
4.1 Death. Upon the death of Executive during the Employment Period, this
Agreement will automatically terminate and all rights of Executive and his
heirs, executors and administrators to compensation and other benefits under
this Agreement will cease, except that Executive's heirs, executors and
administrators, as the case may be, will be entitled to:
(a) Accrued Base Salary through Executive's date of death;
(b) Other benefits under Benefit Plans to which Executive was entitled
on Executive's date of death in accordance with the terms of such Benefit
Plans, including without limitation payment for all accrued and unused
Person Time Off credits; and
(c) The accrued but unpaid annual bonus, if any, for any fiscal year
of Company ended prior to the date of death.
3
<PAGE>
4.2 Disability. Company may, at its option, terminate Executive's
employment under this Agreement upon written notice to Executive if Executive,
because of physical or mental incapacity or disability, fails to perform the
essential functions of his position, with reasonable accommodation, required of
him under this Agreement for a continuous period of 120 days or any 180 days
within any 12-month period. Upon such termination during the Employment Period,
all obligations of the Company under this Agreement will cease, except that
Executive will be entitled to:
(a) Accrued Base Salary through the date of Executive's termination of
employment;
(b) Other benefits under Benefit Plans to which Executive was entitled
upon such termination of employment in accordance with the terms of such
Benefit Plans, including without limitation payment for all accrued and
unused Person Time Off credits; and
(c) The accrued but unpaid annual bonus, if any, for any fiscal year
ended prior to the date of such termination.
In the event of any dispute regarding the existence of Executive's incapacity or
disability, the matter will be resolved by the determination of an independent
physician to be selected by the Board. Executive agrees to submit to appropriate
medical examinations for purposes of such determination.
4.3 Cause.
4.3.1 Termination for Cause. The Company may, at its option,
terminate Executive's employment under this Agreement for Cause (as defined in
Section 4.3.2). Any such termination for Cause must be authorized by the Board.
At least 60 days prior to such Board authorization, Executive must be given
written notice by the Board of the claimed bases for the termination of his
employment for Cause and must be given the opportunity to appear before the
Board, with legal representation, to present arguments and evidence on his own
behalf.
4.3.2 Definition. As used in this Agreement, the term "Cause"
means:
(a) Commission of an act of fraud, embezzlement, or theft constituting
a felony; or
(b) Willful commission of an act (or failure to take an action) that
is intentionally against the interest of Company and that causes Company
material injury.
For purposes of this Agreement, Executive will not be deemed to be terminated
for Cause unless and until Company delivers to Executive a copy of a formal
resolution duly adopted by the affirmative vote of not less than two-thirds of
the entire membership of the Board at a meeting of the Board called and held for
this purpose (after reasonable notice to Executive and an opportunity for
Executive, together with his legal counsel, to attend and be heard before the
4
<PAGE>
Board) expressly finding that in the good faith opinion of the Board Executive
was guilty of conduct constituting Cause as defined in this Section and
specifying in detail the particulars of such conduct.
4.3.3 Effect on Other Remedies. The exercise of the right of the
Company to terminate this Agreement pursuant to this Section 4.3.3 will not
abrogate the rights or remedies of the Company in respect of the actions giving
rise to such termination.
4.3.4 Effect of Termination for Cause. If the Company terminates
Executive's employment for Cause, all obligations of the Company under this
Agreement will cease, except that Executive will be entitled to the payments and
benefits specified in Sections 4.2(a) and 4.2(b).
4.4 Termination Without Cause. If during the Employment Period and prior
to a Change in Control (or more than two years following a Change in Control),
the Board terminates the employment of Executive for any reason other than a
reason set forth in Sections 4.1 (death), 4.2 (Disability), or 4.3 (Cause), all
obligations of the Company under this Agreement will cease, except that
Executive will be entitled to:
(a) The payments and benefits specified in Sections 4.2(a) and 4.2(b);
and
(b) The accrued but unpaid annual bonus, if any, for any fiscal year
ended prior to the date of such termination; and, in addition
(c) Severance payments (the "Severance Payments") equal to the amounts
described in either paragraph (i), (ii), or (iii) below, payable
contingent on Executive's execution of a comprehensive release (in a form
to be drafted by Company and its counsel) of any and all claims that
Executive may hold through the date such release is executed against
Company or any of its subsidiaries or affiliates. Executive will not be
entitled to Severance Payments in the event the Employment Period is not
extended or this Agreement is not renewed by Company.
(i) In the event that, on or before the date of
termination, Company has signed two of the following studios
(Fox, Columbia, Disney, Paramont, MGM, Universal, or Warner) to
a theatrical agreement satisfactory to Company, the Severance
Payments will be equal to either (at the election of Executive,
subject to the approval of Company): (A) a continuation of
Executive's Base Salary for two years, payable in accordance
with Company's regular payroll practices, or (B) a single lump
sum cash payment equal to 18 months of Base Salary (net of
applicable taxes);
(ii) If paragraph (i) does not apply, the Severance
Payments will be an amount equal to a continuation of
Executive's Base Salary for
5
<PAGE>
six months, payable in accordance with Company's regular
payroll practices; or
(iii) In the event such termination (whether paragraph
(i) or paragraph (ii) would otherwise apply) is in connection
with a sale or closure by Company of its Theatrical Operations
business, the Severance Payments will be equal to a continuation
of Executive's Base Salary, payable in accordance with Company's
regular payroll practices, through the expiration of the
Employment Period or the expiration of two years following the
date of termination, which ever is greater.
During the period that Executive is receiving Severance Payments pursuant to
either paragraph (i), (ii), or (iii) of this Section 4.4(c), Company will pay
(or reimburse Executive for) Executive's cost for COBRA continuation of his
health insurance coverage at the same levels as he enjoyed prior to termination.
4.5 Good Reason.
4.5.1 Termination for Good Reason. Executive may terminate his employment with
the Company prior to the end of the Employment Period for Good Reason (as
defined in Section 4.5.2) upon 60 days prior written notice to the Company (or
such shorter period as may be permitted by the Board). If Executive terminates
his employment under this Agreement for Good Reason during the Employment Period
and prior to a Change in Control, all obligations of the Company under this
Agreement will cease, except that Executive will be entitled to:
(a) The payments and benefits specified in Sections 4.2(a) and 4.2(b);
(b) The accrued but unpaid annual bonus, if any, for any fiscal year
ended prior to the date of such termination; and
(c) The Severance Payments described in Section 4.4, subject to the
release condition set forth in that Section.
4.5.2 Definition. As used in this Agreement, the term "Good
Reason" means the occurrence, without Executive's written consent, of any one or
more of the following, to the extent not cured within a reasonable period of
time (not to exceed 30 days) after written notice specifying the basis for
Executive's termination of employment pursuant to this Section 5(e) is given to
Company by Executive:
(a) Any reduction in the Base Salary of Executive;
(b) Any reduction in the benefits, taken as a whole, provided to
Executive pursuant to the Benefit Plans;
(c) Any reduction in the Severance Payments or in the events upon
which such payments are to be made to Executive under this Agreement;
6
<PAGE>
(d) Any reduction or elimination of Executive's right to participate
in Company's annual bonus program or the 1997 Equity Participation Plan
(or any successor or similar annual bonus program or stock-based
compensation plan);
(e) Any diminution in the title or position or reporting level of
Executive; or
(f) Any significant diminution in the responsibilities of Executive,
as set forth in this Agreement.
4.6 Voluntary Termination Other Than For Good Reason. Executive may
voluntarily terminate his employment with Company prior to the end of the
Employment Period for any reason other than a reason set forth in Section 4.5
upon 60 days prior written notice to the Company (or such shorter period as may
be permitted by the Board). If Executive voluntarily terminates his employment
pursuant to this Section 4.6, all obligations of the Company under this
Agreement will cease, except that Executive will be entitled to the payments and
benefits specified in Sections 4.2(a) and 4.2(b).
4.7 Cooperation. After notice of termination and prior to the effective
date of termination, Executive will cooperate with Company, as reasonably
requested by Company, to effect a transition of Executive's responsibilities and
to ensure that Company is aware of all matters being handled by Executive.
5. Effect Of Change In Control
5.1 Definitions.
"Change in Control". For purposes of this Agreement, a "Change in
Control" will be deemed to have occurred upon the first fulfillment of the
conditions set forth in any one of the following three paragraphs unless the
events leading to such condition have been approved by two-thirds of the
directors of Company then in office:
(a) Any "person" (as that term is defined in Section 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 Company, is or becomes a
beneficial owner (within the meaning of Rule 13d-3 promulgated under the
Exchange Act), directly or indirectly, of securities of Company
representing 25 percent or more of the combined voting power of Company's
then outstanding securities;
(b) A majority of the directors elected at any annual or special
meeting of shareholders are not individuals nominated by Company's then
incumbent Board; or
(c) The shareholders of Company approve a merger or consolidation of
Company with any other corporation, other than a merger or consolidation
which would result in the voting securities of Company outstanding
immediately prior to such transaction continuing to represent (either by
remaining outstanding or by being converted into
7
<PAGE>
voting securities of the surviving entity) at least 75 percent of the
combined voting power of the voting securities of Company or of such
surviving entity outstanding immediately after such merger or
consolidation, or the shareholders of Company approve a plan of complete
liquidation of Company or an agreement for the sale or disposition by
Company of all or substantially all of its assets.
"Excise Tax" means a tax imposed by IRC ss. 4999(a), or any successor
provision, with respect to "excess parachute payments" as described in IRC ss.
280G(b).
"Other Agreement" means a plan, arrangement, or agreement pursuant to
which an Other Payment is made.
"Other Payment" means any payment or benefit payable to Executive in
connection with a Change in Control of Company pursuant to any plan,
arrangement, or agreement (other than this Agreement) with Company, a person
whose actions result in such Change in Control, or any person affiliated with
Company or such person.
"Total Payments" means all payments or benefits payable to Executive in
connection with a Change in Control, including Change in Control Payments
pursuant to this Agreement and any other payments or benefits pursuant to any
other plan, agreement, or arrangement with Company, a person whose actions
result in the Change in Control, or any person affiliated with Company or such
person.
5.2 Compensation Upon Termination Following a Change in Control. In the
event of Company's termination of Executive without Cause, or Executive's
termination of employment with Company for Good Reason, at any time within two
years following a Change in Control during the Employment Period, Executive will
be entitled to the payments described in Section 4.4; provided, however, that
the Severance Payments described in Section 4.4 will be equal to a continuation
of Executive's Base Salary through the expiration of two years following the
date of termination. The payments and benefits payable to Executive pursuant to
this Section 5.2 in connection with a Change in Control of Company are referred
to as the "Change in Control Payments."
5.3 Reduction in Change in Control Payments to Avoid Excess Parachute Tax
Payments.
5.3.1 Reduction. In the event that any portion of the Total
Payments payable to Executive in connection with a Change in Control of Company
would constitute an "excess parachute payment" within the meaning of IRC ss.
280G(b) that is subject to an Excise Tax, the Change in Control Payments
otherwise payable under this Agreement will be reduced to the extent necessary
to avoid such excise tax if, and only if, such reduction would result in a
larger after-tax benefit to Executive, taking into account all applicable
federal, state, and local income
8
<PAGE>
and excise taxes, until either (i) no portion of the Total Payments are subject
to such Excise Tax or (ii) the Change in Control Payments are reduced to zero.
5.3.2 Application. For purposes of this limitation:
(a) No portion of the Total Payments, the receipts or enjoyment of
which Executive has effectively waived in writing prior to the date of
payment of any Change in Control Payments, will be taken into account;
(b) No portion of the Total Payments will be taken into account which,
in the opinion of tax counsel selected by Company and reasonably
acceptable to Executive ("Tax Counsel"), does not constitute a "parachute
payment" within the meaning of IRC ss. 280G;
(c) If Executive and Company disagree whether any payment of Change in
Control Payments will result in an Excise Tax or whether a reduction in
any Change in Control Payments will result in a larger after-tax benefit
to Executive, the matter will be conclusively resolved by an opinion of
Tax Counsel;
(d) Executive agrees to provide Tax Counsel with all financial
information necessary to determine the after-tax consequences of payments
of Change in Control Payments for purposes of determining whether, or to
what extent, Change in Control Payments are to be reduced pursuant to
this Section 5.3; and
(e) The value of any noncash benefit or any deferred payment or
benefit included in the Total Payments, and whether or not all or a
portion of any payment or benefit is a "parachute payment" for purposes
of this Section 5.3, will be determined by Company's independent
accountants in accordance with the principles of IRC ss. 280(G)(d)(3) and
(4).
5.3.3 Effect on Other Agreements. In the event that any Other
Agreement has a provision that requires a reduction in the Other Payment
governed by such Other Agreement to avoid or eliminate an "excess parachute
payment" for purposes of IRC ss. 280G, the reduction in Change in Control
Payments pursuant to this Section 5.3 will be given effect before any reduction
in the Other Payment pursuant to the Other Agreement. To the extent possible,
Company and Executive agree that reductions in benefits under any plan, program,
or arrangement of Company will be reduced (only to the extent described in
Section 5.3.1) in the following order of priority:
(a) Change in Control Payments under this Agreement; (b) Benefit Plan
benefit continuation; and
(c) The acceleration in the exercisability of any stock option or
other stock related award granted by Company.
6. No Mitigation
9
<PAGE>
In the event Company makes payments to Executive pursuant to any
provision of this Agreement following a termination of his employment
relationship with Company, Executive will not be required to mitigate damages
with respect to the amount of any such payments by seeking other employment or
otherwise, nor will the amount of any such payments pursuant to this Agreement
be reduced by any compensation earned or received by Executive as a result of
employment by another employer.
7. Confidential Information
7.1 Definition. "Confidential Information" is all nonpublic information
relating to Company or its business that is disclosed to Executive, that
Executive produces, or that Executive otherwise obtains during employment.
Confidential Information also includes information received from third parties
that Company has agreed to treat as confidential. Examples of Confidential
Information include, without limitation, marketing plans, customer lists or
other customer information, product design and manufacturing information, and
financial information. Confidential Information does not include any information
that (i) is within the public domain other than as a result of disclosure by
Executive in violation of this Agreement, (ii) was, on or before the date of
disclosure to Executive, already known by Executive, or (iii) Executive is
required to disclose in any governmental, administrative, judicial, or
quasi-judicial proceeding, but only to the extent that Executive is so required
to disclose and provided that Executive takes reasonable steps to request
confidential treatment of such information in such proceeding.
7.2 Access to Information. Executive acknowledges that in the course of
his employment he expects to have access to Confidential Information, that such
information is a valuable asset of Company, and that its disclosure or
unauthorized use will cause Company substantial harm.
7.3 Ownership. Executive acknowledges that all Confidential Information
will continue to be the exclusive property of Company (or the third party that
disclosed it to Company), whether or not prepared in whole or in part by
Executive and whether or not disclosed to Executive or entrusted to his custody
in connection with his employment by Company.
7.4 Nondisclosure and Nonuse. Unless authorized or instructed in advance
in writing by Company, or required by law (as determined by licensed legal
counsel), Executive will not, except as required in the course of Company's
business, during or after his employment, disclose to others or use any
Confidential Information, unless and until, and then only to the extent that,
such items become available to the public through no fault of Executive.
10
<PAGE>
7.5 Return of Confidential Information. Upon request by Company during or
after his employment, and without request upon termination of employment
pursuant to this Agreement, Executive will deliver immediately to Company all
written, stored, saved, or otherwise tangible materials containing Confidential
Information without retaining any excerpts or copies.
7.6 Duration. The obligations set forth in this Section 7 will continue
beyond the term of employment of Executive by Company and for so long as
Executive possesses Confidential Information.
8. Exclusive Employment
During employment with Company, Executive will not do anything to compete
with Company's present or contemplated business, nor will he plan or organize
any competitive business activity. Executive will not enter into any agreement
which conflicts with his duties or obligations to Company. Executive will not
during his employment or within one year after it ends, without Company's
express written consent, directly or indirectly, solicit or encourage any
employee, agent, independent contractor, supplier, customer, consultant or any
other person or company to terminate or alter any existing contractual
relationship with Company.
9. Assignment and Transfer
Executive's rights and obligations under this Agreement are not
transferable by assignment or otherwise, and any purported assignment, transfer
or delegation of such rights or obligations will be void. This Agreement will
inure to the benefit of, and be binding upon and enforceable by, any purchaser
of substantially all of Company's assets, any successor to Company or any
assignee from Company or such successor.
10. No Inconsistent Obligations
Executive is aware of no obligations, legal or otherwise, inconsistent
with the terms of this Agreement or with his undertaking employment with
Company. Executive will not disclose to Company, or use, or induce Company to
use, any proprietary information or trade secrets of others. Executive
represents and warrants that he or she has returned all property and
confidential information belonging to all prior employers.
11. Miscellaneous
11.1 Governing Law. This Agreement will be governed by and construed in
accordance with the laws of the State of California without regard
to conflict of law principles.
11
<PAGE>
11.2 Entire Agreement. This Agreement contains the entire agreement and
understanding between the parties and supersedes any prior or contemporaneous
written or oral agreements, representations and warranties between them
respecting the subject matter of this Agreement.
11.3 Amendment. This Agreement may be amended only by a writing signed by
Executive and by a duly authorized representative of Company.
11.4 Severability. If any term, provision, covenant or condition of this
Agreement, or the application of any such term, provision, covenant, or
condition to any person, place or circumstance, is held to be invalid,
unenforceable or void, the remainder of this Agreement and such term, provision,
covenant or condition as applied to other persons, places and circumstances will
remain in full force and effect.
11.5 Construction. The headings and captions of this Agreement are
provided for convenience only and are intended to have no effect in construing
or interpreting this Agreement. The language in all parts of this Agreement will
be in all cases construed according to its fair meaning and not strictly for or
against Company or Executive.
11.6 Rights Cumulative. The rights and remedies provided by this
Agreement are cumulative, and the exercise of any right or remedy by either
party (or by his or its successor), whether pursuant to this Agreement, to any
other agreement, or to law, will not preclude or waive its right to exercise any
or all other rights and remedies.
11.7 Nonwaiver. No failure or neglect of either party in any instance to
exercise any right, power or privilege under this Agreement or under law will
constitute a waiver of any other right, power or privilege or of the same right,
power or privilege in any other instance. All waivers by either party must be
contained in a written instrument signed by the party to be charged and, in the
case of Company, by an officer of Company (other than Executive) or other person
duly authorized by Company.
11.8 Equitable Remedies for Breach. The parties agree that, in the event
of breach or threatened breach of any covenants of Executive, the damage or
imminent damage to the value and the goodwill of Company's business will be
inestimable, and that therefore any remedy at law or in damages will be
inadequate. Accordingly, the parties agree that Company will be entitled to
injunctive relief against Executive in the event of any breach or threatened
breach of any of such provisions by Executive, in addition to any other relief
(including damages) available to Company under this Agreement or under law.
12
<PAGE>
11.9 Notices. Any notice, request, consent or approval required or
permitted to be given under this Agreement or pursuant to law will be sufficient
if in writing, and if and when sent by certified or registered mail, with
postage prepaid, to Executive's residence (as noted in Company's records), or to
Company's principal office, as the case may be.
11.10 Assistance in Litigation. Executive will, during and after
termination of employment, upon reasonable notice, furnish such information and
proper assistance to Company as may reasonably be required by Company in
connection with any litigation in which it or any of its subsidiaries or
affiliates is, or may become a party; provided, however, that such assistance
following termination will be furnished at mutually agreeable times and for
mutually agreeable compensation.
11.11 Attorneys' Fees. In the event of any suit or action or arbitration
proceeding to enforce or interpret any provision of this Agreement (or which is
based on this Agreement), the prevailing party will be entitled to recover, in
addition to other costs, reasonable attorneys' fees in connection with such
suit, action, arbitration, and in any appeal. The determination of who is the
prevailing party and the amount of reasonable attorneys' fees to be paid to the
prevailing party will be decided by the arbitrator or arbitrators (with respect
to attorneys' fees incurred prior to and during any arbitration proceedings) and
by the court or courts, including any appellate courts, in which the matter is
tried, heard, or decided, including the court which hears any exceptions made to
an arbitration award submitted to it for confirmation as a judgment (with
respect to attorneys' fees incurred in any such judicial proceedings).
The parties have duly executed this Agreement effective as of July 1,
2002.
RENTRAK CORPORATION EXECUTIVE:
By
---------------------------- --------------------------------
Name: Ronald Giambra
------------------------
Title:
-----------------------