Employment Agreement - Rentrak Corp. and Kenneth M. Papagan
EMPLOYMENT AGREEMENT
This Employment Agreement is entered into as of November 18, 2002, between
KENNETH M. PAPAGAN ("Executive") and RENTRAK CORPORATION, an Oregon corporation
("Corporation").
1. SERVICES
1.1 Employment Position. Corporation agrees to employ Executive as
Executive Vice President - New Business and Strategic Planning, and Executive
accepts such employment, under the terms and conditions of this Agreement.
Executive also agrees to serve, if elected, without separate compensation, as a
director of Corporation and an officer and/or director of any subsidiary or
affiliate of Corporation. In the event that the Corporation pays directors fees
to other directors who are also officers of Corporation, Corporation will pay
directors fees to Executive on the same basis. Corporation represents to
Executive that it currently has and will maintain directors and officers
liability insurance.
1.2 Term.
1.2.1 Initial Term. The term of this Agreement (the "Term") will
commence on November 18, 2002, and will expire December 31, 2003.
1.2.2 Subsequent Terms. On or before September 1, 2003, Corporation
and Executive mutually agree to enter into negotiations concerning an
extension of the Term or of this Agreement or the terms of a new employment
agreement with a term commencing January 1, 2004. The extension of the Term
beyond December 31, 2003, will require the mutual approval of both parties
as to the terms of such extension, including Executive's title, duties, and
overall compensation. In the event that, prior to the expiration of the
Term, Corporation and Executive are not able to reach agreement for such an
extension, Executive will be entitled to severance payments pursuant to
Section 6.2.1(b).
1.3 Duties. During the Term, Executive will serve in an executive capacity
as the Executive Vice President - New Business and Strategic Planning. Executive
will report directly to Corporation's Chief Executive Officer. Executive will be
responsible for new business development and strategic planning and such other
or different duties on behalf of Corporation as may be assigned from time to
time by Corporation's Chief Executive Officer or Corporation's Board of
Directors (the "Board"). Executive will do such traveling as may be required in
the performance of his duties under this Agreement.
1.4 Outside Activities. Except as expressly provided in this Section,
during his employment under this Agreement, Executive will devote his full
business time, energies, and attention to the business and affairs of
Corporation, 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 Corporation's business. For a transition period of six months from
the date of this Agreement, Executive may continue to list
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himself as CEO of MeSoft Partners and as President of DelMar Media.Net (the
"Prior Companies") and may devote up to 10 hours per month in connection with
Prior Companies and other consulting activities provided that (i) such
activities do not violate the noncompetition provisions of Section 4 of this
Agreement and (ii) such services will not interfere with Executive's performance
of his duties for Corporation.
1.5 Application of Corporate Policies. Executive will, except as otherwise
provided in this Agreement, be subject to Corporation's rules, practices, and
policies applicable generally to Corporation's senior executive employees, as
such rules, practices, and policies may be revised from time to time by the
Board.
2. COMPENSATION AND EXPENSES
2.1 Base Salary. As compensation for services under this Agreement,
Corporation will pay to Executive a base salary of $225,000 per year, payable in
a manner consistent with Corporation's payroll practices for management
employees, as such practices may be revised from time to time. (In no event will
Executive's base salary be payable less often than monthly.)
2.2 Bonus Compensation. For the Term of this Agreement (through December
31, 2003), subject to the provisions of Section 6 of this Agreement, Corporation
will pay Executive a bonus in an amount determined by Corporation's Chief
Executive Officer, after consultation with the Committee, in his discretion
based on Executive's contributions to Corporation; provided, however, that such
bonus will not be less than $60,000. Such bonus will be payable on or before
February 15, 2004 (and the obligation to pay such bonus will survive the
expiration of the Term).
2.3 Stock Options.
2.3.1 General. Executive will participate, together with Corporation's
other senior executives, in Corporation's 1997 Equity Participation Plan
(the "Plan"). Executive will be granted options to purchase shares of
Corporation's common stock and/or other awards under the Plan at the times
and in the amounts determined by the Committee. All options will be subject
to the provisions of the Plan.
2.3.2 Initial Grant. Effective as of the date of this Agreement,
Executive will be granted a combination of an incentive stock option and a
nonqualified stock option to purchase an aggregate of 75,000 shares of
Corporation's common stock with an exercise price equal to the fair market
value of the stock on the date of the grant, subject to the vesting and
other provisions set forth in award agreements in the form attached to this
Agreement as Appendix 2.3.2.
2.4 Additional Employee Benefits Executive will receive an annual grant of
208 hours of credit (or such higher number of hours as are credited to
Corporation's other senior executives) under Corporation's Personal Time Off
(PTO) program. Personal time off and vacation may be taken in accordance with
Corporation's rules, practices, and policies applicable to Corporation's senior
executive employees, as such rules, practices, and policies may be revised from
time to time by the Board or the Committee. During the Term, Executive will be
entitled to any other employee benefits approved by the Board or the Committee,
or available to officers and other management employees generally, including any
life and medical insurance
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plans, 401(k) and other similar plans, and health and welfare plans, each
whether now existing or hereafter approved by the Board or the Committee
("Benefit Plans"). The foregoing will not be construed to require Corporation to
establish any such plans or to prevent Corporation from modifying or terminating
any such Benefit Plans.
2.5 Expenses. Corporation will reimburse Executive for reasonable expenses
actually incurred by Executive in connection with the business of Corporation.
Executive will submit to Corporation such substantiation for such expenses as
may be reasonably required by Corporation. In connection with Executive's
commencement of employment, Corporation will reimburse Executive for (a) moving
expenses to Portland (up to $5,000), (b) up to $4,000 for transition automobile
expense, (c) up to 45 days temporary lodging at the Portland Embassy Suites
Hotel, and (d) up to $5,000 for attorney's fees.
3. CONFIDENTIAL INFORMATION
3.1 Definition. "Confidential Information" is all nonpublic information
relating to Corporation 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 Corporation has agreed to treat as confidential; provided that Executive
has knowledge that Corporation has agreed to treat such information 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.
3.2 Access to Information. Executive acknowledges that in the course of his
employment he will have access to Confidential Information, that such
information is a valuable asset of Corporation, and that its disclosure or
unauthorized use will cause Corporation substantial harm.
3.3 Ownership. Executive acknowledges that all Confidential Information
will continue to be the exclusive property of Corporation (or the third party
that disclosed it to Corporation), 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 Corporation.
3.4 Nondisclosure and Nonuse. Unless authorized or instructed in advance in
writing by Corporation, or required by law (as determined by licensed legal
counsel or judicial or quasi-judicial order), Executive will not, except as
required in the course of Corporation'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.
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3.5 Return of Confidential Information. Upon request by Corporation during
or after his employment, and without request upon termination of employment
pursuant to this Agreement, Executive will deliver immediately to Corporation
all written, stored, saved, or otherwise tangible materials containing
Confidential Information without retaining any excerpts or copies.
3.6 Duration. The obligations set forth in this Section 3 will continue
beyond the term of employment of Executive by Corporation and for so long as
Executive possesses Confidential Information.
4. NONCOMPETITION
4.1 Competitive Entity. For purposes of this Agreement, a Competitive
Entity is any firm, corporation, partnership, limited liability company,
business trust, or other entity that is engaged in all or any of the following
business activities:
(a) The wholesale and/or revenue sharing physical or electronic
distribution of home entertainment software in any media, including without
limitation video cassettes, DVDs, video games and PC software
("Entertainment Software");
(b) The fulfillment, warehouse, or distributing business in connection
with the Entertainment Software industry;
(c) The collection, aggregation, tracking and dissemination of market
information and data (sales, marketing, inventory), occurrence and
expenditure data, and advertising data related to consumer activity in
various industries including, but not limited to the entertainment
industry;
(d) The delivery of technological intelligence, industry analysis, and
strategic and tactical guidance with respect to consumer activity in
various industries including, but not limited to the entertainment
industry; or
(e) Any business directly competitive with a business then engaged in
by Corporation or identified in Corporation's three-year business plan.
4.2 Covenant. During the Term and for a period ending on the last day of
the applicable Noncompete Period described in Section 5.7, Executive will not,
within any geographical area where Corporation engages in business:
(a) Directly or indirectly, alone or with any individual, partnership,
limited liability company, corporation, or other entity, become associated
with, render services to, invest in, represent, advise, or otherwise
participate in any Competitive Entity; provided, however, that nothing
contained in this Section 4.2 will prevent Executive from owning less than
5 percent of any class of equity or debt securities listed on a national
securities exchange or market, provided such involvement is solely as a
passive investor;
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(b) Solicit any business on behalf of a Competitive Entity from any
individual, firm, partnership, corporation, or other entity that is a
customer of Corporation during the 12 months immediately preceding the date
Executive's employment with Corporation is terminated; or
(c) Employ or otherwise engage or offer to employ the services of any
person (other than Executive's assistant) who has been an employee, sales
representative, or agent of Corporation during the 12 months preceding the
date Executive's employment with Corporation is terminated.
For purposes of this Section 4, "Corporation" means Corporation and its
subsidiaries (whether now existing or subsequently created) and their successors
and assigns.
4.3 Severability; Reform of Covenant. If, in any judicial proceeding, a
court refuses to enforce this covenant not to compete because it covers too
extensive a geographic area or is too long in its duration, the parties intend
that it be reformed and enforced to the maximum extent permitted under
applicable law.
5. TERMINATION
Executive's employment under this Agreement will terminate prior to the end
of the Term as follows:
5.1 Death. Executive's employment will terminate automatically upon the
date of Executive's death.
5.2 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.
5.3 Termination by Corporation for Cause. Corporation may terminate
Executive's employment under this Agreement for Cause at any time. For purposes
of this Agreement, "Cause" means: (a) a material breach of this Agreement by
Executive; (b) Executive's refusal, failure, or inability to comply with any of
the material and lawful policies or standards of Corporation or to perform any
material job duties of Executive set forth in this Agreement; (c) any act of
fraud by Executive, (d) any material act of dishonesty by Executive involving
Corporation or its business; or (e) Executive's conviction of or a plea of nolo
contendere to a felony; provided that Cause will not include any actions or
circumstances constituting Cause under (a) or (b) above if Executive cures such
actions or circumstances within 30 days of receipt of written notice from
Corporation setting forth the actions or circumstances constituting Cause.
5.4 Termination by Executive for Good Reason. Executive may terminate his
employment with Corporation under this Agreement for "Good Reason" if
Corporation has not cured the actions or circumstances which are the basis for
such termination within 30 days following receipt by the Board of written notice
from Executive setting forth the actions or
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circumstances constituting Good Reason. For purposes of this Agreement, "Good
Reason" means:
(a) Failure of Corporation to comply with the terms of this Agreement
or any other agreement entered into with Executive by Corporation or any
affiliate of Corporation; or
(b) The occurrence (without Executive's express written consent) of
any of the following acts by Corporation or failures by Corporation to act:
(i) A substantial adverse alteration in the nature or status of
Executive's title, position, duties, or reporting responsibilities as
an executive of Corporation; (ii) A reduction in Executive's base
salary or other material non-discretionary compensation or benefits as
set forth in this Agreement or as the base salary or other material
non-discretionary compensation or benefits may be increased from time
to time;
(iii) The failure by Corporation to continue to provide Executive
with benefits and participation in Benefit Plans made available by
Corporation to its senior executives; or
(iv) The relocation of Corporation's executive offices at which
Executive is to provide services to a location more than 35 miles from
its current location on N.E. Ambassador Place in Portland, Oregon.
5.5 Termination by Corporation Without Cause. Corporation may terminate
Executive's employment with Corporation without Cause at any time by written
notice to Executive.
5.6 Termination by Executive Without Good Reason. Executive may terminate
Executive's employment with Corporation other than for Good Reason at any time
by written notice to the Secretary of the Corporation.
5.7 Applicable Noncompete Periods upon Termination. The duration of
Executive's obligations under Section 4 (the "Noncompete Period") will be as
follows:
5.7.1 In the event Executive terminates his employment with
Corporation for Good Reason under Section 5.4 or Corporation terminates
Executive's employment with Corporation without Cause under Section 5.5,
the Noncompete Period will continue so long as Executive receives Monthly
Severance Payments under Section 6.2. Executive's obligations under this
Agreement will terminate immediately if Corporation fails to make a Monthly
Severance Payment within 15 days after it is due. For this purpose, a check
for a Monthly Severance Payment mailed within such 15 day period (as
evidenced by official postmark) will be deemed to be made within such 15
day period.
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5.7.2 In the event Corporation terminates Executive's employment for
Cause, Executive terminates his employment with Corporation other than for
Good Reason under Section 5.6, or Executive's employment with Corporation
terminates due to the expiration of the Term, the Noncompete Period will be
one year from the date of termination.
6. COMPENSATION UPON TERMINATION
6.1 Death, Disability, or Expiration of Term. Upon termination of
Executive's employment pursuant to Section 5.1, Section 5.2, or due to the
Expiration of the Term, all obligations of Corporation 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) A prorated portion of the bonus described in Section 2.1 (not less
than a pro rata portion of the minimum bonus described in that Section);
and
(c) Other benefits under Benefit Plans to which Executive was entitled
upon such termination of employment in accordance with the terms of such
Benefit Plans.
6.2 Termination Without Cause or by Executive for Good Reason; Nonrenewal
of Term.
6.2.1 Monthly Severance Payments.
(a) In the event that no Change in Control (as defined in Section 7)
has occurred and, prior to the expiration of the Term, Executive terminates
his employment with Corporation for Good Reason under Section 5.4 or
Corporation terminates Executive's employment with Corporation without
Cause under Section 5.5, Executive will be entitled to the amounts
described in Section 6.1 plus severance payments equal to the number of
calendar months remaining in the Term plus six months multiplied by the
base salary per month in effect as of the date of termination, payable in
equal monthly installments (each installment, a "Monthly Severance
Payment").
(b) In the event that Corporation and Executive do not extend the Term
of this Agreement or enter into a replacement agreement as described in
Section 1.2.2, Executive will be entitled to the amounts described in
Section 6.1 plus Monthly Severance Payments equal to six months multiplied
by the base salary per month in effect as of the end of the Term.
(c) Corporation's obligations to pay Monthly Severance Payments (under
either paragraph (a) or (b) of this Section 6.2.1) are expressly
conditioned on (i)Executive's execution of a release (in the form attached
to this Agreement as Appendix 6.2.1(c), with such modifications
specifically in response to changes in
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applicable law as counsel for Corporation determines to be reasonably
necessary or desirable to ensure effective release of all claims) of any
and all claims that Executive may hold through the date such release is
executed against Corporation or any of its subsidiaries or affiliates, and
(ii) the expiration of any applicable revocation period specified in such
release without revocation of the release by Executive.
(d) Monthly Severance Payments will be payable in a manner consistent
with Corporation's payroll practices for management employees.
(e) Executive will not be required to mitigate the Monthly Severance
Payments pursuant to this Agreement by seeking other employment; provided
however, that amounts payable by Corporation as Monthly Severance Payments
will be reduced by compensation actually received by Executive from a new
employer during the applicable severance period described above.
6.2.2 Medical and Dental Insurance Benefits. In addition to Monthly
Severance Payments, Corporation will continue to provide or will arrange to
provide Executive with medical and dental insurance benefits substantially
similar to those to which Executive was entitled as of the date of
termination until Corporation's obligation to make Monthly Severance
Payments expires; provided, however, that if Executive is employed with
another employer and is eligible to receive medical and dental insurance
benefits under another employer-provided plan, the medical and dental
benefits described in this paragraph will be secondary to those provided
under such other plan.
6.2.3 Effect of Competition. Corporation's obligation to make Monthly
Severance Payments and provide medical and dental insurance benefits to
Executive will terminate if Executive breaches a material provision of
Section 4.
6.3 Termination For Cause or by Executive Without Good Reason. In the event
that, prior to the expiration of the Term, Corporation terminates Executive's
employment with Corporation for Cause under Section 5.3, or Executive terminates
his employment with Corporation for other than Good Reason under Section 5.6,
Corporation's obligations under this Agreement will cease and Executive will be
entitled to that portion of his base salary and employment benefits for which he
is qualified as of the date of termination and Executive will not be entitled to
any other compensation or consideration.
7. EFFECT OF CHANGE IN CONTROL
7.1 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:
(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
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benefit plan of Corporation, is or becomes a beneficial owner
(within the meaning of Rule 13d-3 promulgated under the Exchange Act),
directly or indirectly, of securities of Corporation representing 30
percent or more of the combined voting power of Corporation's then
outstanding securities;
(b) A majority of the directors elected at any annual or special
meeting of shareholders are not individuals nominated by Corporation's then
incumbent Board; or
(c) The shareholders of Corporation approve a merger or consolidation
of Corporation with any other corporation, other than a merger or
consolidation which would result in the voting securities of Corporation
outstanding immediately prior to such transaction continuing to represent
(either by remaining outstanding or by being converted into voting
securities of the surviving entity) at least 51 percent of the combined
voting power of the voting securities of Corporation or of such surviving
entity outstanding immediately after such merger or consolidation, or the
shareholders of Corporation approve a plan of complete liquidation of
Corporation or an agreement for the sale or disposition by Corporation of
all or substantially all of its assets.
"Other Payment" means any payment or benefit payable to Executive in
connection with a Change in Control of Corporation pursuant to any plan,
arrangement, or agreement (other than this Agreement) with Corporation, a person
whose actions result in such Change in Control, or any person affiliated with
Corporation 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 pursuant to any other plan,
agreement, or arrangement with Corporation, a person whose actions result in the
Change in Control, or any person affiliated with Corporation or such person.
7.2 Compensation Upon Termination Following a Change in Control.
7.2.1 Change in Control Payments. In the event of Corporation's
termination of Executive without Cause, or Executive's termination of
employment with Corporation for Good Reason, at any time following a Change
in Control during the Term of this Agreement, Executive will be entitled to
the following payments (the "Change in Control Payments"):
(a) A lump sum severance payment equal to two times Executive's annual
base salary as in effect immediately before the Change in Control plus two
times Executive's bonus compensation for the most recent fiscal year ended
prior to the Change in Control;
(b) Continuation for a period of two years following such termination
of Executive's participation in all Benefit Plans in which Executive was
entitled to participate immediately before the Change in Control, provided
that such continued participation is possible under the general terms and
provisions of such
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Benefit Plans. In the event Executive's continued participation in any
Benefit Plan is barred by the provisions of the Benefit Plan, Corporation
will arrange to provide Executive with benefits substantially similar to
those which Executive was entitled to receive under the Benefit Plan.
7.2.2 Reduction. In the event that any portion of the Total Payments
payable to Executive in connection with a Change in Control of Corporation
would constitute an "excess parachute payment" within the meaning of IRC
ss. 280G(b) that is subject to the excise tax imposed on so-called excess
parachute payments pursuant to IRC ss.4999 (an "Excise Tax"), the Change in
Control Payments otherwise payable under this Section 7.2.1 will be reduced
to avoid such Excise Tax if, and to the extent that, such reduction will
result in a larger after-tax benefit to Executive, taking into account all
applicable federal, state, and local income and excise taxes.
7.2.3 Application. For purposes of this Section 7.2:
(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 Corporation and reasonably
acceptable to Executive ("Tax Counsel"), does not constitute a "parachute
payment" within the meaning of IRC ss. 280G;
(c) If Executive and Corporation 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
Section 7.2.2; 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 7.2, will be determined by Corporation's independent accountants in
accordance with the principles of IRC ss. 280(G)(d)(3) and (4).
7.2.4 Effect on Other Agreements. In the event that any other
agreement, plan, or arrangement providing for Other Payments (an "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 Section 7.2.2 will be given effect before any
reduction in the Other Payment pursuant to the Other Agreement. To the
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extent possible, Corporation and Executive agree that reductions in
benefits under any plan, program, or arrangement of Corporation will be
reduced (only to the extent described in Section 7.2.2) in the following
order of priority:
(a) Change in Control Payments under this Agreement;
(b) Benefit Plan benefit continuation pursuant to Section 7.2.1(b);
and
(c) The acceleration in the exercisability of any stock option or
other stock related award granted by Corporation.
8. REMEDIES
The respective rights and duties of Corporation and Executive under this
Agreement are in addition to, and not in lieu of, those rights and duties
afforded to and imposed upon them by law or at equity. Executive acknowledges
that any breach or threatened breach of Sections 3 or 4 of this Agreement will
cause irreparable harm to Corporation and that any remedy at law would be
inadequate to protect the legitimate interests of Corporation. Executive agrees
that Corporation will be entitled to seek specific performance, or to seek any
other form of injunctive relief, to enforce its rights under Sections 3 or 4 of
this Agreement. Such remedies will be in addition to any other remedy available
to Corporation at law or in equity.
9. SEVERABILITY OF PROVISIONS
The provisions of this Agreement are severable, and if any provision of
this Agreement is held invalid, unenforceable, or unreasonable, it will be
enforced to the maximum extent permissible, and the remaining provisions of the
Agreement will continue in full force and effect.
10. NONWAIVER
Failure of Corporation at any time to require performance of any provision
of this Agreement will not limit the right of Corporation to enforce the
provision. No provision of this Agreement or breach of this Agreement may be
waived by either party except in writing signed by that party. A waiver of any
breach of a provision of this Agreement will be construed narrowly and will not
be deemed to be a waiver of any succeeding breach of that provision or a waiver
of that provision itself or of any other provision.
11. NOTICES
All notices required or permitted under this Agreement must be in writing
and will be deemed to have been given if delivered by hand, or mailed by
first-class, certified mail, return receipt requested, postage prepaid, to the
respective parties as follows (or to such other address as any party may
indicate by a notice delivered to the other parties hereto): (i) if to
Executive, to his residence as listed in Corporation's records, with a copy to:
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Weissmann, Wolff, Bergman, Coleman, Grodin & Evall, LLP
9665 Wilshire Boulevard
Suite 900
Los Angeles, California 90212
Attn: Mr. Alan L. Grodin Esq.
and (ii) if to Corporation, to the address of the principal office
of Corporation, at:
One Airport Center
7700 N.E. Ambassador Place
Portland, Oregon 97220
12. ATTORNEY 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,
the reasonable attorney fees incurred by the prevailing party in connection with
such suit, action, or arbitration, and in any appeal therefrom. The
determination of who is the prevailing party and the amount of reasonable
attorney fees to be paid to the prevailing party will be decided by the
arbitrator or arbitrators (with respect to attorney fees incurred prior to and
during the 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 attorney fees incurred in such
confirmation proceedings).
13. GOVERNING LAW
This Agreement will be construed in accordance with the laws of the state
of Oregon, without regard to any conflicts of laws rules. Any suit or action
arising out of or in connection with this Agreement, or any breach of this
Agreement, must be brought and maintained in the Circuit Courts of the State of
Oregon. The parties hereby irrevocably submit to the jurisdiction of such court
for the purpose of such suit or action and hereby expressly and irrevocably
waive, to the fullest extent permitted by law, any claim that any such suit or
action has been brought in an inconvenient forum.
14. GENERAL TERMS AND CONDITIONS
This Agreement and the Option Agreement constitute the entire understanding
of the parties relating to the employment of Executive by Corporation, and
supersede and replace all written and oral agreements heretofore made or
existing by and between the parties relating thereto. Executive acknowledges
that he has read and understood all of the provisions of this Agreement, that
the restrictions contained in Sections 4 and 5.7 of this Agreement are
reasonable and necessary for the protection of Corporation's business and that
Executive entered into this contract in connection with a bona fide advancement
of Executive with Corporation in that Executive was granted a long-term
employment contract. This Agreement will inure to the benefit of any successors
or assigns of Corporation. All captions used in this Agreement are intended
solely for convenience of reference and will in no way limit any of the
provisions of this Agreement.
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The parties have executed this Employment Agreement as of the date stated
above.
RENTRAK CORPORATION
/s/ Kenneth M. Papagan By /s/ F. Kim Cox
Kenneth M. Papagan Title President
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APPENDIX 6.2.1(c)
AGREEMENT AND RELEASE
THIS AGREEMENT AND RELEASE ("Release") is made on this ___ day of
_______________, 200__, by and between Rentrak Corporation, an Oregon
corporation ("Corporation") and Kenneth M. Papagan ("Executive"). Corporation
and Executive agree as follows:
1. Payment to Executive.
(a) Upon the execution of this Release, and after expiration of the
revocation period specified in Section 9 of this Release, Corporation will
commence payment of the applicable Monthly Severance Payments described in
Section 6 of Executive's Employment Agreement dated __________, 2002 (the
"Employment Agreement"), less normal deductions and withholdings.
(b) Executive specifically acknowledges and agrees that Corporation has
paid Executive all wages and other compensation and benefits to which Executive
is entitled except those described in Paragraph 1(a) of this Release and that
the execution of this Release (and compliance with the noncompetition provisions
of Section 4 of the Employment Agreement) are conditions precedent to
Corporation's obligation to make the Monthly Severance Payments.
2. Release by Executive.
Executive hereby completely releases and forever discharges Corporation and
each of its past, present, and future parent and subsidiary corporations and
affiliates and each of their respective past, present, and future shareholders,
officers, directors, agents, employees, insurers, successors, and assigns
(collectively, the "Released Parties"), from any and all claims, liabilities,
demands, and causes of action of any kind, whether statutory or common law, in
tort, contract, or otherwise, in law or in equity, and whether known or unknown,
foreseen or unforeseen, in any way arising out of, concerning, or related to,
directly or indirectly, Executive's employment with Corporation, including, but
not limited to, the termination of Executive's employment based on any act or
omission on or prior to the effective date of this Release, but not including
any claim for workers' compensation or unemployment insurance benefits. Without
limiting the generality of the foregoing, this release specifically includes,
but is not limited to, a release of claims arising under Title VII of the Civil
Rights Act of 1964; the Age Discrimination in Employment Act; the Americans with
Disabilities Act; the Family and Medical Leave Act; the Employee Retirement
Income Security Act; the Worker Adjustment and Retraining Notification Act; and
ORS chapters 652, 653, and 659A, and any amendments to any of such laws.
3. Return of Corporation Property.
Executive represents and warrants that Executive has returned to
Corporation all property belonging to Corporation, including, but not limited
to, all documents or other media containing confidential or proprietary
information of Corporation (including without limitation customer,
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production, and pricing information), and all Corporation credit cards, keys,
cellular telephones, and computer hardware and software.
4. No Liability or Wrongdoing.
Corporation specifically denies any liability or wrongdoing whatsoever.
Neither this Release nor any of its provisions, terms, or conditions constitute
an admission of liability or wrongdoing or may be offered or received in
evidence in any action or proceeding as evidence of an admission of liability or
wrongdoing.
5. Severability.
If any provision of this Release is found by any court to be illegal or
legally unenforceable for any reason, the remaining provisions of this Release
will continue in full force and effect.
6. Attorney Fees.
If any action is brought to interpret or enforce this Release or any part
of it, the prevailing party will be entitled to recover from the other party its
reasonable attorney fees and costs incurred therein, including all attorney fees
and costs on any appeal or review.
7. Choice of Law.
This Release will be governed by the laws of the state of Oregon, without
regard to its principles of conflicts of laws.
8. Consideration of Agreement.
Executive acknowledges that Corporation has advised him in writing to
consult with an attorney before signing this Release and that he has been given
at least 21 days to consider whether to execute this Release. For purposes of
this 21-day period, Executive acknowledges that this Release was delivered to
him on ________, 20__, that the 21-day period will expire ___________, 20__, and
that he may have until that date to consider the Release.
9. Revocation.
Executive may revoke this Release by written notice, delivered to
___________ within seven days following his date of signature as set forth
below. This Release becomes effective and enforceable after such seven-day
period has expired.
10. Knowing and Voluntary Agreement.
Executive acknowledges and agrees that: (a) the only consideration for this
Release is the consideration expressly described in this document; (b) he has
carefully read the entire Release; (c) he has had the opportunity to review this
Release and to have it reviewed and explained to him by an attorney of his
choosing; (d) he fully understands the final and binding
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effect; and (e) he is signing this Release voluntarily and with the full intent
of releasing Corporation from all claims.
11. Miscellaneous.
The benefits of this Release will inure to the successors and assigns of
the parties. This is the entire agreement between Executive and Corporation
regarding the subject matter of this Release and neither party has relied on any
representation or statement, written or oral, that is not set forth in this
Release. Executive represents and warrants that Executive has not assigned any
claim that Executive may have against the Released Parties to any person or
entity.
RENTRAK CORPORATION
By:
---------------------- ----------------------------
Kenneth M. Papagan
Title:
---------------------
Date: Date:
---------------------- ---------------------------
STATE OF ___________________ )
) SS
COUNTY OF __________________ )
This instrument was acknowledged before me on __________, 2002,
by Kenneth M. Papagan.
Notary Public for
My commission expires:
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