THE EXECUTIVE NONQUALIFIED ?EXCESS? PLAN
ADOPTION AGREEMENT
Equity Incentive Plan Agreement
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Rentrak Corporation | Principal Life Insurance Company
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Title: THE EXECUTIVE NONQUALIFIED ?EXCESS? PLAN
ADOPTION AGREEMENT Governing Law: Oregon Date: 6/13/2008 Industry: Motion Pictures Sector: Services
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Exhibit
10.35
NOTE: Execution of this Adoption
Agreement creates a legal liability of the Employer with
significant tax consequences to the Employer and Participants. The
Employer should obtain legal and tax advice from its professional
advisors before adopting the Plan. Principal Life Insurance Company
disclaims all liability for the legal and tax consequences which
result from the elections made by the Employer in this Adoption
Agreement.
Principal Life Insurance
Company, Raleigh, NC 27612
A member of the Principal
Financial Group ®
THE EXECUTIVE NONQUALIFIED
“EXCESS” PLAN
ADOPTION
AGREEMENT
THIS AGREEMENT is the
adoption by Rentrak Corporation (the “Company”)
of the Executive Nonqualified Excess Plan
(“Plan”).
W I T N E S S E T
H:
WHEREAS, the Company desires
to adopt the Plan as an unfunded, nonqualified deferred
compensation plan; and
WHEREAS, the provisions of
the Plan are intended to comply with the requirements of
Section 409A of the Code and the regulations thereunder and
shall apply to amounts subject to section 409A; and
WHEREAS, the Company has been
advised by Principal Life Insurance Company to obtain legal and tax
advice from its professional advisors before adopting the
Plan,
NOW, THEREFORE, the Company
hereby adopts the Plan in accordance with the terms and conditions
set forth in this Adoption Agreement:
ARTICLE I
Terms used in this Adoption
Agreement shall have the same meaning as in the Plan, unless some
other meaning is expressly herein set forth. The Employer hereby
represents and warrants that the Plan has been adopted by the
Employer upon proper authorization and the Employer hereby elects
to adopt the Plan for the benefit of its Participants as referred
to in the Plan. By the execution of this Adoption Agreement, the
Employer hereby agrees to be bound by the terms of the
Plan.
ARTICLE II
The Employer hereby makes the following
designations or elections for the purpose of the Plan:
2.6 Committee: The duties of the
Committee set forth in the Plan shall be satisfied by:
XX
(a)
Company
(b)
The
administrative committee appointed by the Board to serve at the
pleasure of the Board.
(c)
Board.
(d)
Other
(specify):
.
2.8 Compensation: The
“Compensation” of a Participant shall mean all of a
Participant’s:
XX
(a)
Base
salary.
XX
(b)
Service
Bonus.
XX
(c)
Performance-Based Compensation earned in a period of 12 months
or more.
XX
(d)
Commissions.
(e)
Compensation
received as an Independent Contractor reportable on Form
1099.
(f)
Other:
2.9 Crediting Date: The Deferred
Compensation Account of a Participant shall be credited with the
amount of any Participant Deferral to such account at the time
designated below:
(a)
The last
business day of each Plan Year.
(b)
The last
business day of each calendar quarter during the Plan
Year.
(c)
The last
business day of each month during the Plan Year.
(d)
The last
business day of each payroll period during the Plan
Year.
(e)
Each pay day
as reported by the Employer.
XX
(f)
Any business
day on which Participant Deferrals are received by the
administrative recordkeeper.
(g)
Other:
.
2.13 Effective Date:
XX
(a)
This is a newly-established Plan, and the Effective Date of the
Plan is April 1, 2008 .
(b)
This is an amendment and restatement of a plan named
with an effective date of
. The Effective Date of this amended and restated Plan is
. This is amendment number
.
(i)
All amounts in Deferred Compensation Accounts shall be subject
to the provisions of this amended and restated Plan.
(ii)
Any Grandfathered Amounts shall be subject to the Plan rules in
effect on October 3, 2004.
2
2.20 Normal Retirement Age: The
Normal Retirement Age of a Participant shall be:
XX
(a)
Age
65 .
(b)
The later of
age
or the
anniversary of the participation commencement date. The
participation commencement date is the first day of the first Plan
Year in which the Participant commenced participation in the
Plan.
(c)
Other:
.
2.23 Participating Employer(s):
As of the Effective Date, the following Participating Employer(s)
are parties to the Plan:
Name of
Employer
Address
Telephone No.
EIN
Rentrak
Corporation
7700 N.E. Ambassador Pl.
503-284-7581
93-0780536
Portland, OR 97220
LRC
7700 N.E. Ambassador Pl.
503-284-7581
91-1850044
Portland, OR 97220
2.26 Plan: The name of the Plan
is
The Executive
Nonqualified Excess Plan of Rentrak Corporation
2.28 Plan Year: The Plan Year
shall end each year on the last day of the month of
December.
2.30 Seniority Date: The date on
which a Participant has:
XX
(a)
Attained age
65 .
(b)
Completed
Years of Service from First Date of Service.
(c)
Attained age
and completed
Years of Service from First Date of Service.
(d)
Attained an
age as elected by the Participant.
(e)
Not
applicable – distribution elections for Separation from
Service are not based on Seniority Date
3
4.1 Participant Deferral Credits:
Subject to the limitations in Section 4.1 of the Plan, a
Participant may elect to have his Compensation (as selected in
Section 2.8 of this Adoption Agreement) deferred within the
annual limits below by the following percentage or amount as
designated in writing to the Committee:
XX
(a)
Base salary:
minimum deferral:
%
maximum deferral:
$
or
%
XX
(b)
Service Bonus:
minimum
deferral:
%
maximum
deferral:
$
or
%
XX
(c)
Performance-Based Compensation:
minimum
deferral:
%
maximum
deferral:
$
or
%
XX
(d)
Commissions:
minimum
deferral:
%
maximum
deferral:
$
or
%
(e)
Form 1099 Compensation:
minimum
deferral:
%
maximum deferral:
$
or
%
(f)
Other:
minimum
deferral:
%
maximum
deferral:
$
or
%
(g)
Participant deferrals not allowed.
4
4.2 Employer Credits: Employer
Credits will be made in the following manner:
XX
(a)
Employer Discretionary Credits: The Employer may make
discretionary credits to the Deferred Compensation Account of each
Active Participant in an amount determined as follows:
XX
(i)
An amount determined each Plan Year by the
Employer.
(ii)
Other:
.
(b)
Other Employer Credits: The Employer may make other
credits to the Deferred Compensation Account of each Active
Participant in an amount determined as follows:
(i)
An amount determined each Plan Year by the
Employer.
(ii)
Other:
.
(c)
Employer Credits not allowed.
5.2 Disability of a
Participant:
XX
(a)
A Participant’s becoming Disabled shall be a Qualifying
Distribution Event and the Deferred Compensation Account shall be
paid by the Employer as provided in Section 7.1.
(b)
A Participant becoming Disabled shall not be a
Qualifying Distribution Event.
5.3 Death of a Participant: If
the Participant dies while in Service, the Employer shall pay a
benefit to the Beneficiary in an amount equal to the vested balance
in the Deferred Compensation Account of the Participant determined
as of the date payments to the Beneficiary commence,
plus:
(a)
An amount to be determined by the Committee.
(b)
Other:
.
XX
(c)
No additional benefits.
5
5.4 In-Service or Education
Distributions: In-Service and Education Accounts are permitted
under the Plan:
XX
(a)
In-Service Accounts are allowed with respect to:
XX
Participant
Deferral Credits only.
Employer
Credits only.
Participant
Deferral and Employer Credits.
In-service distributions may be made in the following
manner:
XX
Single lump
sum payment.
XX
Annual
installments over a term certain not to exceed
5 years.
Education Accounts are allowed with respect to:
XX
Participant
Deferral Credits only.
Employer
Credits only.
Participant
Deferral and Employer Credits.
Education Accounts distributions may be made in the following
manner:
XX
Single lump
sum payment.
XX
Annual
installments over a term certain not to exceed
5 years.
If applicable, amounts not vested at the time payments due
under this Section cease will be:
Forfeited
Distributed
at Separation from Service if vested at that time
(b)
No In-Service or Education Distributions permitted.
5.5 Change in Control
Event:
XX
(a)
Participants may elect upon initial enrollment to have accounts
distributed upon a Change in Control Event.
(b)
A Change in Control shall not be a Qualifying
Distribution Event.
5.6 Unforeseeable Emergency
Event:
XX
(a)
Participants may apply to have accounts distributed upon an
Unforeseeable Emergency event.
(b)
An Unforeseeable Emergency shall not be a Qualifying
Distribution Event
6
6. Vesting: An Active Participant
shall be fully vested in the Employer Credits made to the Deferred
Compensation Account upon the first to occur of the following
events:
XX
(a)
Normal Retirement Age.
XX
(b)
Death.
XX
(c)
Disability.
XX
(d)
Change in Control Event
(e)
Other:
XX
(f)
Satisfaction of the vesting requirement as specified
below:
XX
Employer Discretionary Credits:
(i)
Immediate 100% vesting.
XX
(ii)
100% vesting after 5
Years of Service.
(iii)
100% vesting at age
.
(iv)
Number of Years
of Service
Vested
Percentage
Less than
1
%
1
%
2
%
3
%
4
%
5
%
6
%
7
%
8
%
9
%
10 or more
%
For this purpose, Years of Service of a Participant shall be
calculated from the date designated below:
(1)
First Day of Service.
(2)
Effective Date of Plan Participation.
XX
(3)
Each Crediting Date. Under this option (3), each Employer
Credit shall vest based on the Years of Service of a Participant
from the Crediting Date on which each Employer Discretionary Credit
is made to his or her Deferred Compensation Account.
7
Other Employer Credits:
(i)
Immediate 100% vesting.
(ii)
100% vesting after
Years of Service.
(iii)
100% vesting at age
.
(iv)
Number of Years
of Service
Vested
Percentage
Less than
1
%
1
%
2
%
3
%
4
%
5
%
6
%
7
%
8
%
9
%
10 or more
%
For this purpose, Years of Service of a Participant shall be
calculated from the date designated below:
(1)
First Day of Service.
(2)
Effective Date of Plan Participation.
(3)
Each Crediting Date. Under this option (3), each Employer
Credit shall vest based on the Years of Service of a Participant
from the Crediting Date on which each Employer Discretionary Credit
is made to his or her Deferred Compensation Account.
8
7.1 Payment Options: Any benefit
payable under the Plan upon a permitted Qualifying Distribution
Event may be made to the Participant or his Beneficiary (as
applicable) in any of the following payment forms, as selected by
the Participant in the Participation Agreement:
(a)
Separation from Service prior to Seniority Date, or
Separation from Service if Seniority Date is Not
Applicable
XX
(i)
A lump sum.
XX
(ii)
Annual installments over a term certain as elected by the
Participant not to exceed 10
years.
(iii)
Other:
.
(b)
Separation from Service on or After Seniority Date, If
Applicable
XX
(i)
A lump sum.
XX
(ii)
Annual installments over a term certain as elected by the
Participant not to exceed 10
years.
(iii)
Other:
.
(c)
Separation from Service Upon a Change in Control
Event
XX
(i)
A lump sum.
(ii)
Annual installments over a term certain as elected by the
Participant not to exceed
years.
(iii)
Other:
.
(d)
Death
XX
(i)
A lump sum.
(ii)
Annual installments over a term certain as elected by the
Participant not to exceed
years.
(iii)
Other:
.
(e)
Disability
XX
(i)
A lump sum.
(ii)
Annual installments over a term certain as elected by the
Participant not to exceed
years.
(iii)
Other:
.
(iv)
Not applicable.
If applicable, amounts not vested at the time payments due
under this Section cease will be:
Forfeited
Distributed at Separation from Service if vested at that
time
9
(f)
Change in Control Event
XX
(i)
A lump
sum.
(ii)
Annual
installments over a term certain as elected by the Participant not
to exceed
years.
(iii)
Other:
.
(iv)
Not
applicable.
If applicable, amounts not
vested at the time payments due under this Section cease will
be:
Forfeited
Distributed
at Separation from Service if vested at that time
7.4 De Minimis
Amounts.
(a)
Notwithstanding any payment election made by the Participant,
the vested balance in the Deferred Compensation Account of the
Participant will be distributed in a single lump sum payment at the
time designated under the Plan if at the time of a permitted
Qualifying Distribution Event that is either a Separation from
Service, death, Disability (if applicable) or Change in Control
Event (if applicable) the vested balance does not exceed $
. In addition, the Employer may distribute a Participant’s
vested balance at any time if the balance does not exceed the limit
in Section 402(g)(1)(B) of the Code and results in the
termination of the Participant’s entire interest in the
Plan
XX
(b)
There shall
be no pre-determined de minimis amount under the Plan; however, the
Employer may distribute a Participant’s vested balance at any
time if the balance does not exceed the limit in
Section 402(g)(1)(B) of the Code and results in the
termination of the Participant’s entire interest in the
Plan.
10.1 Contractual Liability:
Liability for payments under the Plan shall be the responsibility
of the:
XX
(a)
Company.
(b)
Employer or
Participating Employer who employed the Participant when amounts
were deferred.
14. Amendment and Termination of
Plan: Notwithstanding any provision in this Adoption Agreement
or the Plan to the contrary, Section
of the Plan shall be amended to read as provided in attached
Exhibit
.
XX
There are no
amendments to the Plan.
10
17.9 Construction: The provision
of the Plan shall be construed and enforced according to the laws
of the State of Oregon , except to the extent that such laws
are superseded by ERISA and the applicable provisions of the
Code.
IN WITNESS WHEREOF, this
Agreement has been executed as of the day and year stated
below.
