EXHIBIT 10.2
CONSULTING AGREEMENT
This Consulting Agreement ("Agreement") is entered into between F. ▇▇▇ ▇▇▇
("Consultant") and Rentrak Corporation, an Oregon corporation ("Rentrak"), on
January 25, 2005.
Consultant and Rentrak agree as follows:
1. SERVICES
1.1 Engagement. Consultant will provide consulting services as needed
during regular business hours regarding (1) Rentrak's currently-pending
arbitration with 3PF; and (2) Rentrak's strategic planning and business
development issues, as assigned from time to time by the Chief Executive Officer
of Rentrak during the term of this Agreement, not to exceed twenty (20) hours
per month.
1.2 Location and Notice. Consultant may perform the consulting services at
such locations as Consultant may choose. Consultant will be reasonably available
by telephone during regular business hours and will keep Rentrak advised of the
telephone number at which he may be contacted; provided that Rentrak will
accommodate Consultant's vacation plans (with reasonable prior notice),
sickness, and partial disability. Rentrak will provide reasonable notice of the
services needed. Subject to Section 1.1 herein, the parties will act in good
faith to mutually accommodate Consultant's availability to provide services and
Rentrak's need for these services.
1.3 Expenses. Rentrak will reimburse Consultant for all expenses actually
incurred by Consultant in connection with Consultant's services pursuant to
receipts submitted therefor.
1.4 Outside Activities. Nothing in this Agreement prevents Consultant from
providing services for other parties during the term of this Agreement, or
becoming employed by another company, provided the services are not rendered in
violation of Section 4 or 5 of this Agreement.
2. TERM
This Agreement will be effective for a term commencing on February 16, 2005
(the "Effective Date") and ending (a) on ▇▇▇▇▇ ▇▇, ▇▇▇▇, (▇) when terminated
with Cause by Rentrak by written notice, (c) when terminated for any reason by
Consultant by written notice, or (d) upon revocation by Consultant of the
Separation Agreement and Release of Claims between Consultant and Rentrak (the
"Separation Agreement"), whichever occurs first. The date on which this
Agreement ceases to be effective is hereinafter referred to as the "Termination
Date." "Cause" means (a) a material breach by Consultant of Section 4 or 5 of
this Agreement, (b) any material act of dishonesty by Consultant involving
Rentrak or its business, (c) Consultant's conviction of or a plea of nolo
contendere to a felony, or (d) Consultant's failure to pay all amounts due and
payable under the loan to be extended by Rentrak to Consultant under Section
7(d) of the Separation Agreement when due. Any actions or circumstances
described
under clauses (a) or (b) above will not constitute "Cause" if Consultant cures
such actions or circumstances within thirty (30) days following the date of
receipt of written notice (the "Notice Date") by Consultant from Rentrak setting
forth such actions or circumstances. If Consultant does not have an opportunity
to cure under the foregoing sentence, the Termination Date will be deemed to
occur on the Notice Date. If Consultant does have an opportunity to cure under
the sentence preceding the foregoing sentence, Rentrak's obligation to pay fees
pursuant to Section 3 herein for the month during which the Notice Date occurs
will be suspended until Consultant provides evidence reasonably satisfactory to
Rentrak that such actions or circumstances have been cured. If Consultant is
unable to cure the actions or circumstances within thirty (30) days of the
Notice Date, Rentrak will not owe any payment for the month during which the
Notice Date occurs or thereafter and the Termination Date will be deemed to
occur on the 30th day following the Notice Date.
3. FEES
Rentrak will pay Consultant at the rate of $25,000 per calendar month
($11,607 for the portion of February 2005 beginning on the Effective Date) for
services under this Agreement, payable in arrears on the last day of each
calendar month during which this Agreement is in effect. In the event of
Consultant's death or disability, the fee obligation set forth above will
continue until the earlier of (1) March 31, 2007, and (2) either the expiration
of six (6) months from the date of death or disability, or three-quarters of the
term remaining under this Agreement, whichever is greater. In the event of
Consultant's death, the fee obligation will be payable to the death beneficiary
designated by Consultant in writing for purposes of this Agreement. If there is
no effective death beneficiary designation, Consultant's death beneficiary will
be the personal representative of Consultant's estate.
4. CONFIDENTIAL INFORMATION
4.1 Defined. "Confidential Information" is all nonpublic information
relating to Rentrak or its business that Rentrak designates, has designated, or
has treated as confidential. "Confidential Information" also includes
information received from third parties that Rentrak has agreed to treat as
confidential and directed Consultant to keep confidential.
"Confidential Information" does not include information that (a) is or
becomes generally available to the public other than as a result of a disclosure
by Consultant; (b) becomes available to Consultant on a nonconfidential basis
from a source other than Rentrak or its representatives, provided that such
source is not known by Consultant to be bound by a confidentiality agreement
with Rentrak or its representatives or otherwise prohibited from transmitting
the information to Consultant by a contractual, legal, or fiduciary obligation;
(c) can be demonstrated by written evidence or other reasonable evidence to have
been known by Consultant on a nonconfidential basis prior to its disclosure to
Consultant by Rentrak or one of its representatives; or (d) can be demonstrated
by written or other reasonable evidence to have been developed by Consultant in
good faith and independent of Confidential Information.
4.2 Access to Information. Consultant acknowledges that in the course of
his employment with Rentrak and in the course of rendering services pursuant to
this Agreement
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he has had and will have access to Confidential Information, that such
information is a valuable asset of Rentrak, and that its disclosure or
unauthorized use will cause Rentrak substantial harm.
4.3 Ownership. Consultant acknowledges that all Confidential Information
will continue to be the exclusive property of Rentrak (or the third party that
disclosed it to Rentrak), whether or not prepared in whole or in part by
Consultant and whether or not disclosed to Consultant or entrusted to his
custody by Rentrak in connection with rendering services pursuant to this
Agreement.
4.4 Nondisclosure and Nonuse. Unless otherwise authorized or instructed in
writing by Rentrak, or required by legally constituted authority, Consultant
will not, except as required to provide services to Rentrak, during or after the
term of this Agreement, disclose to others or use any Confidential Information.
4.5 Duration. The obligations set forth in this Section 4 will continue
beyond the Termination Date for so long as Consultant possesses Confidential
Information.
4.6 Return of Confidential Information. Upon request by Rentrak during or
after the term of this Agreement, and without request upon termination of this
Agreement by Rentrak, Consultant will deliver immediately to Rentrak all written
or tangible materials containing Confidential Information without retaining any
excerpts or copies, and all equipment, supplies, or other property belonging to
Rentrak.
5. NONCOMPETITION
5.1 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 directly competitive with a business
activity engaged in by Rentrak (or an activity specifically identified in
Rentrak's three-year business plan) as of the Effective Date. In the event that
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ceases to be an officer or director of Rentrak prior to the
Termination Date, Rentrak will promptly provide a list of the activities
referred to in the preceding sentence to Consultant.
5.2 Prior Approval. For so long as ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ continues to be an
officer or director of Rentrak, Consultant will consult with ▇▇. ▇▇▇▇▇▇▇▇▇
before entering into an employment arrangement or other engagement with any
entity that could reasonably be viewed as a Competitive Entity within the
meaning of Section 5.1 and will request that Rentrak (acting through ▇▇.
▇▇▇▇▇▇▇▇▇) give its approval that such entity is not a Competitive Entity for
purposes of this Agreement, which approval will not be unreasonably withheld;
provided that Rentrak will not be bound by such approval if it is later
determined that the entity is, in fact, a Competitive Entity and the information
provided by Consultant was not consistent with that fact.
5.3 Covenant. Until the earlier of (1) one year following the Termination
Date, or (2) March 31, 2007, Consultant will not, within any geographical area
where Rentrak engages in business:
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(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 5.3 will prevent Consultant from owning less than
5 percent of any class of equity or debt securities listed on a national
securities exchange or trading 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 Rentrak during the term of this Agreement; or
(c) Employ or otherwise engage or offer to employ the services of any
person who has been an employee, sales representative, or agent of Rentrak
during the term of this Agreement.
For purposes of this Section 5, "Rentrak" means Rentrak and its subsidiaries
(whether now existing or subsequently created) and their successors and assigns.
5.4 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.
6. INDEPENDENT CONTRACTOR STATUS
Consultant is an independent contractor, and not an employee of Rentrak.
Accordingly:
6.1 Withholding. Rentrak will not withhold from payments to Consultant any
amount that would normally be withheld from an employee's pay. Consultant will
be solely responsible for taxes required by federal, state, or local law with
respect to amounts paid under this Agreement. Consultant will comply with all
reporting, payment, and withholding obligations applicable to such payments.
Consultant will indemnify Rentrak against any loss, liability, or cost
(including attorney fees at trial and on appeal) resulting from Consultant's
failure to comply with such obligations. Consultant will maintain and provide to
Rentrak his state uniform business identification number and his federal tax
identification number.
6.2 No Benefits. Except as provided in the Separation Agreement, Consultant
will not be entitled to receive or otherwise participate in any employee
benefits that Rentrak provides to its employees. Consultant will provide all
insurance for Consultant and any employees of Consultant that is required by
law.
6.3 Equipment. Consultant will furnish all equipment and materials used to
provide services, except to the extent that Consultant's work must be performed
on or with Rentrak's equipment or materials.
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6.4 No Agency. Nothing in this Agreement creates a partnership, joint
venture, or employer-employee relationship. Consultant is not the agent of
Rentrak or authorized to make any representation, contract, or commitment on
behalf of Rentrak.
6.5 Indemnification by Rentrak. Except for amounts that Consultant is
obligated to pay pursuant to Section 6.1 herein, Rentrak will indemnify and hold
Consultant harmless for any loss, cost, expenses, assessments or damages
incurred by Consultant due to or stemming from the characterization of
Consultant as an independent contractor rather than as an employee.
7. REMEDIES
7.1 Generally. The respective rights and duties of Rentrak and Consultant
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.
7.2 Rentrak's Remedy. Consultant acknowledges that breach of Section 4 or 5
of this Agreement would cause irreparable harm to Rentrak and agrees to the
entry of a temporary restraining order and permanent injunction by any court of
competent jurisdiction to prevent any breach or further breach of Section 4 or 5
of this Agreement. Such remedy will be in addition to any other remedy available
to Rentrak at law or in equity.
7.3 Consultant's Remedy. Rentrak agrees that if Rentrak breaches this
Agreement or the Separation Agreement, Consultant will be entitled to all of the
payments, benefits, and other terms described in Sections 6.2.1 and 6.2.2 of the
Amended and Restated Employment Agreement entered into as of April 1, 2004,
between Consultant and Rentrak for termination without cause (as defined
therein). Such remedy will be in addition to any other remedy available to
Consultant at law or in equity; provided, however, that any monthly fees
received under this Agreement pursuant to Section 3 herein will be credited
against such amounts owed.
7.4 Rentrak's Indemnification of Consultant. Rentrak will indemnify and
hold harmless Consultant against all claims, losses, liabilities, damages,
judgments, fines, fees, costs, and expenses (including attorneys' fees and
disbursements), excluding those arising from the gross negligence or willful
misconduct of Consultant, incurred in connection with (i) any activity
undertaken on Rentrak's behalf and at Rentrak's direction or request, and (ii)
any claim, action, suit, proceeding, or investigation, whether civil, criminal,
administrative, or investigative, arising out of or pertaining to the fact that
Consultant is or was a consultant of Rentrak or any of its subsidiaries, with
such indemnification to be provided to the fullest extent permitted under
applicable law. Consultant will be entitled to advancement of expenses incurred
in the defense of any claim, action, suit, proceeding, or investigation from
Rentrak within ten (10) business days of receipt by Rentrak from Consultant of a
request therefor; provided, however, that Consultant will repay such advances if
it is ultimately found that Consultant is not entitled to indemnification.
Rentrak's obligation to indemnify Consultant will remain in full force and
effect for a period of three years from the Effective Date. If any claims are
asserted or made as to matters subject to the foregoing indemnity provisions
within such three-year period, all rights to indemnification in respect of any
such claim or claims will continue until the disposition thereof.
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8. SEVERABILITY OF PROVISIONS
The provisions of this Agreement are severable, and if any provision of
this Agreement is held invalid or unenforceable, it will be enforced to the
maximum extent permissible, and the remaining provisions of this Agreement will
continue in full force and effect.
9. NONWAIVER
Failure of either party at any time to require performance of any provision
of this Agreement will not limit such party's right to enforce the provision. No
provision of this Agreement or breach thereof may be waived by either party
except by a 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.
10. 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
Consultant, to his residence at:
▇▇▇ ▇▇▇
With a copy to:
▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇.▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
and (ii) if to Rentrak, to the address of the principal office of Rentrak, at:
Rentrak Corporation
One Airport Center
▇▇▇▇ ▇.▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
With a copy to:
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ LLP
▇▇▇ ▇.▇. ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
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11. 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).
12. 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.
13. GENERAL TERMS AND CONDITIONS
This Agreement constitutes the entire understanding of the parties relating
to Consultant's engagement as a consultant to Rentrak and supersedes and
replaces all written and oral agreements previously made or existing by and
between the parties relating to services of Consultant, except as specifically
provided hereunder or in the Separation Agreement. This Agreement and
Consultant's rights under this Agreement may not be assigned or transferred by
Consultant. This Agreement will inure to the benefit of any successors or
assigns of Rentrak. All captions are intended solely for convenience of
reference and will in no way limit any of the provisions of this Agreement.
F. ▇▇▇ ▇▇▇ RENTRAK CORPORATION
/s/ F. ▇▇▇ ▇▇▇ By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Chief Executive Officer
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