Employment Agreement - Rentrak Corp. and Marty Graham
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 17th day of May, 1997 by and between RENTRAK CORPORATION, an
Oregon corporation (hereinafter referred to as "Employer"), and
MARTY GRAHAM (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, Product Development 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 June 1, 1995, as amended,
(collectively the "Employment Agreement") and Employer and
Employee desire to enter into a new 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:
1. EMPLOYMENT
1.01. Duties and Place of Employment.
(a) Employee shall be responsible for, and perform
duties associated with his position as Vice President, Product
Development, including title management so as to minimize risk
and maximize profits, 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 One Airport Center, 7700 N.E. Ambassador
Place,, Portland, Oregon 97220, 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.
2. TERM AND TERMINATION
2.01. Stated Term.
Employment commenced on April 15, 1997 and will end on April
15, 2002 (the "End Date") or until Employee's employment under
this Agreement is terminated pursuant to this Section 2 ("Term").
2.02. At Will Termination.
Notwithstanding anything herein to the contrary, Employee's
employment may be terminated by Employer at any time without
cause upon thirty (30) days written notice to Employee.
2.03. For Cause Termination.
Employee's employment may be terminated by Employer for
"cause" without notice. Termination for "cause" is defined for
purposes of this subsection as termination for: (i) material
failure of Employee to substantially perform the reasonable and
attainable instructions of Employer as to his duties hereunder;
or (ii) an act or acts of misconduct by Employee which is
determined by the Employer to be materially injurious to Employer
monetarily or otherwise; or (iii) material violation by Employee
of any provision of this Agreement. For purposes of this
subsection, termination for "cause" shall not include any act or
failure to act on Employee's part if done or omitted to be done
by him in demonstrable good faith and with the reasonable belief
that his act or omission was in the best interest of the Employer
or pursuant to an express policy of Employer at the time of such
act or omission.
2.04. Disability or Death.
Employee's employment shall be terminable immediately upon
Employee's death or disability. "Disability" is defined for
purposes of this subsection as absence from Employee's full time
duties with Employer as a result of Employee's incapacity due to
physical or mental illness for ninety (90) days calculated on a
cumulative basis during any one (1) year period during the Term
of this Agreement. Nothing in this Section 2.04 is intended to
violate any Oregon State law regarding parental or family leave
policies or any other applicable law.
2.05. Termination by Employee for Good Reason.
Employee's employment may be terminated by Employee at any
time for "Good Reason" as that term is defined below. Employee's
continued employment shall not constitute consent to, or a waiver
of rights with respect to, any act or failure to act constituting
Good Reason hereunder. "Good Reason" shall mean (i) a material
breach by Employer of the terms of this Agreement; provided that
Employee shall have no right to terminate this Agreement pursuant
to this clause (i) unless Employer has had at least 15 days to
cure such failure, or (ii) the occurrence (without Employee's
express written consent), within two (2) years after any Change
of Control of any one of the following acts by Employer, or
failures by Employer to act:
(a) the assignment to Employee of any duties
inconsistent with Employee's status as an executive officer of
Employer or a substantial adverse alteration in the nature or
status of Employee's title, position, duties, functions, working
conditions or responsibilities from those in effect immediately
prior to the Change of Control other than any such alteration
primarily attributable to the fact that Employer may no longer be
a public company;
(b) a reduction by Employer in Employee's annual Base
Salary as in effect on the date hereof or as the same may be
increased from time to time;
(c) the relocation of Employer's principal executive
offices to a location more than thirty-five 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.
2.06. 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.
3. COMPENSATION
3.01. Base Salary.
Commencing April 15, 1997, Employee shall be paid an annual
base salary in the amount of One Hundred Thirty Thousand Dollars
($130,000) ("Base Salary"). The Base Salary shall be paid to
Employee in equal semi-monthly installments in arrears on the
seventh (7th) and twenty-second (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 shall be increased during
the Term of this Agreement by Ten Thousand Dollars ($10,000) per
annum, said increase to be effective as of April 15 of each year
during the Term of this Agreement.
3.02. Bonus Compensation.
Employee shall be entitled to participate in whatever bonus
plan is adopted by Employer, including any cash bonus pools
established from time to time by Employer, for Corporate
Officers. Additionally, Employee shall be entitled to a
performance bonus in the amounts set forth below upon achievement
of the specified objectives:
(a) For the establishment of PPT operations, defined
as shipment of the first cassette, in a non-Asian foreign
territory, Fifteen Thousand Dollars ($15,000);
(b) For obtaining a fulfillment agreement no less than
one (1) year in duration with any retailer with One Hundred (100)
or more stores for all product of either Warner, Paramount, Sony,
Fox, Universal or Disney, Fifteen Thousand Dollars ($15,000); and
(c) For obtaining a fulfillment agreement no less than
one (1) year in duration with any retailer with One Hundred (100)
or more stores for all product of either Orion, LIVE, MGM,
Polygram, NewLine or Trimark, Seven Thousand Five Hundred Dollars
($7,500).
3.03. 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 one hundred sixty (160) hours 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 also be
entitled to officers' disability insurance benefits. For five
years following a Change of Control, Employer shall use its best
efforts to continue to provide directors' and officers' liability
insurance covering Employee (with respect to events occurring
prior to termination of Employment) on terms no less favorable
(in terms of coverage and amounts) than those of such insurance
in effect immediately prior to the Change of Control. Following
a Change of Control, Employer will indemnify and hold harmless
Employee (and advance expenses) to the full extent provided in
the Articles of Incorporation and Bylaws of Employer as in effect
immediately prior to the Change of Control.
(c) Tuition Reimbursement. Employee shall be entitled
to reimbursement for all tuition, enrollment fees, and books
pursuant to Employer's education assistance program. Employee
shall comply with all Employer's terms, policies and procedures
regarding its education assistance program.
(d) Business Expenses. During the Term of this
Agreement, Employee shall be entitled to receive prompt
reimbursement for all reasonable expenses incurred by Employee in
the performance of his duties pursuant to this Agreement in
accordance with the policies and procedures of Employer now or
hereinafter in effect.
(e) Miscellaneous Benefits. In addition to any other
compensation or benefits to be received by Employee pursuant to
the terms of this Agreement, Employee shall be entitled to
participate in any employee or officer(s) benefits which Employer
may from time to time provide its employees or officer(s)
generally.
3.04. Stock Options.
Upon the commencement of the Term of this Agreement, all
options previously granted to Employee shall fully vest. Also
upon commencement of the Term of this Agreement, Employer shall
grant Employee Twenty-Five Thousand (25,000) shares of Employer's
stock at the market rate as set forth in Employer's Stock Option
Plan on the date of execution of this Agreement. Said options
shall vest at a rate of Twenty percent (20%) per year (i.e.,
5,000 options shall vest at the end of each full year of
Employee's employment during the five-year Term of this
Agreement). Said options shall remain exercisable for a period
of Ten (10) years from the issue date.
In addition to the aforementioned options, Employee shall be
granted additional options for Five Thousand (5,000) shares per
grant during each year that this Agreement remains in effect,
commencing on the anniversary date of execution of this Agreement
in 1998. Said options shall be at a price to be set by the Board
of Directors of Employer and shall be the same price at which
options are offered to all other employees during the year in
which the options are granted. Said options shall vest at a rate
of Twenty percent (20%) per year (i.e., 1,000 options shall vest
at the end of each full year of Employee's employment) and shall
remain exercisable for a period of Ten (10) years from the issue
date.
3.05. Loan.
Employer has advanced to Employee Thirty-Five Thousand
Dollars ($35,000) (the "Loan"). The Loan is to be repaid in
full, with interest at the rate of Eight-and-a-half percent
(8.5%); provided however, that if Employee is still employed by
Employer on the anniversary date of the execution of this
Agreement in 2002, the Loan shall be forgiven. All interest will
accrue to the fifth anniversary of this Agreement. In the event
of termination of Employee's employment by Employer for reason
other than cause, or by Employee for good reason, or by
Employee's death or disability, the Loan shall be forgiven. If
Employee resigns other than for good reason or his employment is
terminated for cause by Employer, then the loan shall be repaid
on the last date of Employee's employment.
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 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.
4.02. Termination for Death or Disability.
(a) Termination for Death. In the event of the termination
of Employee's employment pursuant to Section 2.04 due to his
death, within ten days of termination Employer shall pay to
Employee's estate or legal representative, as the case may be, in
a lump sum, the Base Salary accrued pursuant to Section 3.01
through and including the date of termination plus a lump sum
severance of Ninety (90) days Base Salary at the rate in effect
on the date of Employee's death. Employer shall also convey to
Employee's estate or legal representative all options granted to
Employee during his employment, regardless of whether or not said
options vested prior to Employee's death. Said options shall
remain exercisable for a period of One (1) year from the date of
death. No other compensation shall be due or payable under this
Agreement in the event of a termination due to the Employee's
death.
(b) Termination for Disability. In the event of the
termination of Employee's employment pursuant to Section 2.04 due
to his disability, within ten days of termination Employer shall
pay to Employee or his legal representative, as the case may be,
in a lump sum, the Base Salary accrued pursuant to Section 3.01
through and including the date of termination. During the period
of Employee's disability, but prior to Employee's termination of
Employment, Employee shall be entitled to receive all
compensation as set forth in this Agreement. No other
compensation shall be due or payable under this Agreement in the
event of a termination due to the Employee's disability.
4.03. Termination by Employer Without Cause After Change
of Control or by Employee for Good Reason.
In the event of the termination of Employee's employment by
Employer pursuant to Section 2.02 within two years after a Change
of Control or by Employee pursuant to Section 2.05, within ten
days of termination Employer shall pay to Employee, in a lump
sum, the lesser of (i) all Base Salary which Employer is
obligated to pay to Employee pursuant to Section 3.01 through the
End Date or (ii) one year of Base Salary which Employer is
obligated to pay to Employee pursuant to Section 3.01 during the
current fiscal year.
4.04. Other Termination by Employer.
In the event of termination of Employee's employment by
Employer pursuant to Section 2.02 prior to a Change of Control or
more than two years after a Change of Control, Employer shall pay
Employee the Base Salary accrued pursuant to Section 3.01 as of
the date of termination plus 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 of comparable status in the Portland
metropolitan area, and in the event that Employee fails to
provide such reasonable evidence, then Employer shall not be
obligated to pay any severance payments; and provided further
that if Employee is successful in obtaining such employment, the
amount of severance payments that would have been payable after
the time that Employee obtains such employment shall be reduced
by the amount of any remuneration received from such employment.
For the purposes of this Agreement, "remuneration" shall be
defined to include cash payments, the face value of any
promissory notes issued to Employee regardless of the terms of
payment or whether payments are ever received, stock or stock
options valued as of the day granted, or any other compensation
given in any form whatsoever.
4.05. Other Termination by Employee.
In the event of the termination of Employee's employment by
Employee pursuant to Section 2.06, within ten days of termination
Employer shall pay to Employee only the amount of Base Salary
accrued pursuant to Section 3.01 through and including the date
of termination. No other compensation shall be due or payable
under this Agreement in the event of a such a termination.
4.06. 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.
4.07. Other Compensation.
Except as set forth in this Section 4, no other compensation
shall be due or payable to Employee upon termination of his
employment.
4.08. Right to Decline Payments.
Employee, in his sole and absolute discretion, shall have
the right to decline all or a portion of any payments under this
Agreement.
5. PERSONAL NATURE
This Agreement is personal, and is being entered into based
upon the singular skill, qualifications and experience of
Employee. Employee shall not assign this Agreement or any rights
hereunder without the express written consent of Employer which
may be withheld with or without reason. Employee hereby grants
to Employer the right to use Employee's name, likeness and/or
biography in connection with the services performed by Employee
hereunder and in connection with the advertising or exploitation
of any project with respect to which Employee performs services
hereunder.
6. NOTICES
Any and all notices or other communications required or
permitted by this Agreement or by law shall be deemed duly served
and given when personally delivered to the party to whom such
notice or communication is directed or, in lieu of such personal
service, when deposited in the United States mail, certified,
return receipt requested, first class postage prepaid, addressed
as follows:
EMPLOYER: Rentrak Corporation
One Airport Center
7700 N.E. Ambassador Place
Portland, Oregon 97220
Attn: Ron Berger
EMPLOYEE: Marty Graham
1914 N.E. 213th Avenue
Troutdale, Oregon 97060
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.
7. MISCELLANEOUS PROVISIONS.
7.01. Attorneys' Fees; Disputes Concerning Termination.
(a) Subject to Section 7.01(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.
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 executed an Employee Confidentiality and
Noncompetition Agreement (a copy of which is attached hereto as
Exhibit A) which remains in effect and is incorporated into the
terms and conditions of employment under this Agreement. Except
as set forth in the preceding sentence, this Agreement
constitutes the entire agreement of the parties with respect to
the subject matter of this Agreement and supersedes all prior
agreements, negotiations, or understandings, whether oral or
written, between the parties with respect thereto.
7.04. Heirs and Assigns.
Subject to any restriction on assignment contained herein,
this Agreement shall be binding upon and shall inure to the
benefit of the respective party's heirs, successors and assigns.
Employer will require any successor (whether direct or indirect,
by purchase, merger, consolidation or otherwise) to all or
substantially all 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.
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 not
be construed against any of the parties.
7.10. No Disparagement or Breach of Confidentiality and
Noncompetition Agreement.
In the event that Employee's employment terminates under this
Agreement in any manner whatsoever, Employee agrees that, except
under compulsion of legal process, he will make no oral or
written comments about Employer or its business for a period of
one year following termination of his employment. In the event
that Employee breaches this provision of this Agreement, or
violates the terms of the Employee Confidentiality and
Noncompetition Agreement executed by him, then all severance
obligations which Employer may then have under this Agreement
shallimmediately cease and Employee shall be owed nothing under this
Agreement other than wages and benefits earned through the date
of the termination of his employment.
IN WITNESS WHEREOF, the parties 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
2.02.
s/s Marty Graham
Marty Graham
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