Back to top

Employment Agreement

Employee Retention Agreement

Employment Agreement | Document Parties: RENTRAK CORPORATION You are currently viewing:
This Employee Retention Agreement involves

RENTRAK CORPORATION

. RealDealDocs™ contains millions of easily searchable legal documents and clauses from top law firms. Search for free - click here.
Title: Employment Agreement
Governing Law: Oregon     Date: 6/13/2008
Industry: Motion Pictures     Law Firm: Miller Nash     Sector: Services

Employment Agreement, Parties: rentrak corporation
50 of the Top 250 law firms use our Products every day

EXHIBIT 10.36

EMPLOYMENT AGREEMENT

This Employment Agreement is entered into effective as of January 1, 2008, by and between Christopher E. Roberts (“Executive”) and RENTRAK CORPORATION , an Oregon corporation (the “Corporation”).

 

1. SERVICES

1.1 Employment Position . Corporation agrees to employ Executive as Sr. Vice President, Home Entertainment Media & Information Services, and Executive accepts such employment, under the terms and conditions of this Agreement. Executive also agrees to serve, if elected, without separate compensation, as an officer and/or director of any subsidiary or affiliate of Corporation. Corporation represents to Executive that it currently has and will maintain directors and officers liability insurance.

1.2 Term .

1.2.1 General . The term of this Agreement (the “Term”) will commence on January 1, 2008, and, subject to the other provisions of this Section 1.2, will expire December 31, 2008.

1.2.2 Renewal Term or Terms . The term of this Agreement will automatically extend into one or more “Renewal Terms” of an additional one-year period that will expire on December 31, 2008 (or December 31 of any such subsequent Renewal Term), unless Corporation, not later than October 31, 2008 (or October 31 of any subsequent Renewal Term), gives written notice (a “Notice of Non-Renewal”) to Executive that the Term will not extend into a Renewal Term. Corporation may give a Notice of Non-Renewal for any reason or for no reason. Failure to extend the Term into a Renewal Term will not constitute a termination of Executive’s employment effective as of the end of the Term or any applicable Renewal Term for purposes of this Agreement. References to the “Term” of this Agreement include the initial Term and, if the Agreement extends into one or more Renewal Terms pursuant to this Section, the Renewal Term or Terms.

1.2.3 Extension of Term Upon Change in Control . Notwithstanding the foregoing, in the event of a Change in Control of Corporation, as defined in Section 8.1 of this Agreement, during the Term (or any Renewal Term) of this Agreement, the Term will automatically be extended to December 31 of the second calendar year following the calendar year in which the Change in Control occurs.

1.2.4 At-Will Employment . The parties acknowledge that Executive is and will be an at-will employee of Corporation and nothing in this Agreement will limit the right of Corporation or Executive to terminate this Agreement at any time for any reason or for no reason, subject to the provisions of this Agreement describing the compensation payable, if any, in connection with such a termination of employment.

1.2.5 Compensation Upon Termination Following Term Of Agreement . Notwithstanding termination of this Agreement, the provisions of Section 7 will continue to apply.

1.3 Duties . During the Term, Executive will serve in an executive capacity as Sr. Vice President, Home Entertainment Media & Information Services. Executive will report directly to President, Home Entertainment. Executive will be responsible for the direction and supervision of Home Entertainment Essentials (Retail & Rental), Direct Revenue Share (DRS) and Digital Download Essentials Services on behalf of Corporation, and such other or different duties on behalf of Corporation as may be assigned from time to time by President, Home Entertainment, Corporation’s President, Chief Executive Officer, or 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 . 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

 

E MPLOYMENT A GREEMENT    - 1 -   

 


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.

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 $175,100 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. Executive’s annual base salary will be reviewed by Corporation’s Chief Executive Officer and Compensation Committee (the “Committee”) on or before April 1 of each year during the Term (commencing in 2008), unless Executive’s employment has been terminated earlier pursuant to this Agreement, to determine if such annual base salary should be increased (but not decreased) for the following fiscal year in recognition of services to Corporation.

2.2 Corporate and Personal Performance Improvement Incentive Plan .

2.2.1 Definitions . For purposes of this Section 2.2, the following terms have this meanings set forth below:

“Bonus Income” means, for any Fiscal Year, the excess of the Net Income for Corporation for the Fiscal Year over the Threshold Income for the Fiscal Year.

“Corporate Performance Incentive Bonus” means a bonus under the Incentive Plan to reflect Corporate performance improvement equal to, for each Fiscal Year, the product of (a) the Bonus Income for that Fiscal Year, (b) Executive’s Performance Achievement Factor for the Fiscal Year, and (c) Executive’s Participation Percentage for the Fiscal Year.

“Fiscal 2008” means the fiscal year beginning April 1, 2007, and ending March 31, 2008.

“Fiscal 2008” means the fiscal year beginning April 1, 2008, and ending March 31, 2009.

“Incentive Plan” means Corporation’s Corporate and Personal Performance Improvement Incentive Plan.

“Net Income” means, for each Fiscal Year, the net income before income taxes for Corporation as determined for financial accounting purposes in accordance with Corporation’s standard accounting policies and principles, consistently applied.

“Parameters” mean, for each Fiscal Year, the Corporate “Report Card” parameters and the “Personal Expectation” performance parameters established by Corporation’s CEO, with the approval of the Compensation Committee for Executive for a Fiscal Year. Executive’s Corporate Report Card parameters and Personal Expectation performance parameters for Fiscal 2008 were previously designated by Corporation’s CEO, with the approval of the Compensation Committee, and communicated to Executive. For Fiscal 2009 and any subsequent Fiscal Year beginning in a Renewal Term, Corporation’s CEO, with the approval of the Compensation Committee will designate Executive’s Corporate Report Card parameters and Personal Expectation performance parameters no later than May 31, 2008 (or May 31 of that Fiscal Year).

 

E MPLOYMENT A GREEMENT    - 2 -   

 


“Parameter Achievement Factors” mean, for each Fiscal Year, the factors, expressed as percentages, determined by Corporation’s CEO, with the approval of the Compensation Committee after the end of the Fiscal Year to reflect the extent to which the Corporate Report Card Parameters and Executive’s Personal Expectation Parameters for the Fiscal Year have been accomplished.

“Participation Percentage” means, for a Fiscal Year, a percentage specified by Corporation’s CEO, with the approval of the Compensation Committee, to determine Executive’s Corporate Performance Incentive Bonus. For Fiscal 2008, Executive’s Participation Percentage is          %. For Fiscal 2009 and any subsequent Fiscal Year beginning in a Renewal Term, Corporation’s CEO, with the approval of the Compensation Committee will specify Executive’s Participation Percentage no later than May 31, 2008 (or May 31 of that Fiscal Year).

“Personal Performance Incentive Bonus” means a bonus under the Incentive Plan to reflect personal performance equal to, for each Fiscal Year, the product of (a) the Personal Performance Incentive Maximum Bonus for the Fiscal Year and (b) the Executive’s Performance Achievement Factor for the Fiscal Year.

“Personal Performance Incentive Maximum Bonus” means an amount of money set for a Fiscal Year by the Corporation’s CEO, with the approval of the Compensation Committee, as the maximum amount of money that the Executive might earn as a Personal Performance Incentive Bonus. The Personal Performance Incentive Maximum Bonus for Fiscal 2008 was previously designated by Corporation’s CEO, with the approval of the Compensation Committee, and communicated to Executive. For Fiscal 2009 and any subsequent Fiscal Year beginning in a Renewal Term, the Compensation Committee will designate the Personal Performance Incentive Maximum Bonus no later than May 31, 2008 (or May 31 of that Fiscal Year).

“Performance Achievement Factor” means a factor, expressed as a percentage, rounded to the nearest whole percent, based on the arithmetic average of the Parameter Achievement Factors for a Fiscal Year; provided however that (a) if the average of the Parameter Achievement Factors is less than 75%, the Performance Achievement Factor will be zero, and (b) the Performance Achievement Factor may not exceed 100% unless expressly approved by Corporation’s CEO, with the approval of the Compensation Committee.

“Threshold Income” means the level of Net Income for Corporation for a Fiscal Year as designated by Corporation’s CEO, with the approval of the Compensation Committee. The Threshold Income for Fiscal 2008 was previously designated by Corporation’s CEO, with the approval of the Compensation Committee, and communicated to Executive. For Fiscal 2009 and any subsequent Fiscal Year beginning in a Renewal Term, the Compensation Committee will designate the Threshold Income no later than May 31, 2008 (or May 31 of that Fiscal Year).

2.2.2 Determination of Parameter Achievement Factors . As soon as practicable after March 31, 2008 (or March 31 of any Fiscal Year beginning in a Renewal Term), Corporation’s CEO, with the approval of the Compensation Committee will evaluate the extent to which Corporation and Executive have met the Report Card and Personal Expectation parameters and determine the Parameter Achievement Factors for Fiscal 2008 (or such Fiscal Year).

2.2.3 Aggregate Incentive Bonus.

(a) Fiscal 2008 . Provided Executive remains an employee of Corporation through at least March 31, 2008, Corporation will pay Executive a bonus under the Incentive Plan equal to the sum of the Corporate Performance Incentive Bonus for Fiscal 2008 and the Personal Performance Incentive Bonus for Fiscal 2008. Such bonus, if any, will be paid to Executive by June 1, 2008.

 

E MPLOYMENT A GREEMENT    - 3 -   

 


(b) Fiscal 2009 and Subsequent Fiscal Years Beginning in a Renewal Term . Provided Executive remains an employee of Corporation through at least March 31, 2009 (or March 31 of any subsequent Fiscal Year that begins during a Renewal Year), Corporation will pay Executive a bonus under the Incentive Plan equal to the sum of the Corporate Performance Incentive Bonus for Fiscal 2009 (or such subsequent Fiscal Year) and the Personal Performance Incentive Bonus for Fiscal 2009 (or such subsequent Fiscal Year). Such bonus, if any, will be paid to Executive by June 1, 2009 (or June 1 of such subsequent Fiscal Year).

2.3 Equity-Based or Other Long-Term Incentive Compensation . Executive will participate, together with Corporation’s other senior executives, in Corporation’s 2005 Stock Incentive Plan (the “Plan”). Executive will be granted options to purchase shares of Corporation’s common stock and/or other equity-based awards under the Plan, or under another long-term incentive compensation plan that may be developed by Corporation for its senior executives, at the times and in the amounts determined by the Committee. All awards will be subject to the provisions of the Plan or such other long-term plan.

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 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 . Subject to review and approval by the chairman of Corporation’s audit committee, 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.

 

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. 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.

 

E MPLOYMENT A GREEMENT    - 4 -   

 


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), 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.

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.

3.7 Effect of Prior Agreement . Executive acknowledges that the provisions of this Section 3 are in addition to and do not supersede the provisions of that Employee Confidentiality Agreement (the “Prior Agreement”) between Corporation and Executive dated effective June 17, 1992, and that the Prior Agreement remains in full force and effect.

 

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 (such as sales, marketing, inventory, occurrence, expenditure, 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

 

E MPLOYMENT A GREEMENT    - 5 -   

 


any class of equity or debt securities listed on a national securities exchange or market, provided such involvement is solely as a passive investor;

(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 for Executive or any other person, entity, or corporation, the services or employment of any person 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, is too long in its duration, or for any other reason, 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) Executive’s willful material misconduct in performance of the duties of his position with Corporation or a material breach by Executive of this Agreement, (b) Executive’s willful commission of a material act of malfeasance, dishonesty, or breach of trust against Corporation or its successors that materially harms or discredits Corporation or its successors or is materially detrimental to the reputation of Corporation or its successors, or (c) Executive’s conviction of or a plea of nolo contendere to a felony involving moral turpitude. In all cases, Corporation will give Executive notice setting for forth in reasonable detail the specific respects in which the Corporation believes it has Cause to terminate Executive and allow Executive a reasonable opportunity to correct such conduct.

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 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

(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;

 


 
SITE SEARCH

AGREEMENTS / CONTRACTS

Document Title:

Entire Document: (optional)

Governing Law:(optional)


Try our advanced search >>
 

CLAUSES

Search Contract Clauses >>

Browse Contract Clause Library>>

Get Email Updates
Email:
This is only a partial view of this document. We have millions of legal documents and clauses drafted by top law firms. learn more search for free browse for free learn more