As filed with the Securities and Exchange Commission on June 5, 1997
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
____________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Rentrak Corporation
(Exact name of registrant as specified in its charter)
OREGON 93-0780536
(State or other jurisdiction (IRS Employer
ofincorporation or organization) Identification Number)
One Airport Center
7700 N.E. Ambassador Place
Portland, OR 97220
(503) 284-7581
(Address of principal executive offices)
____________________
The1997 Non-Officer Employee Stock Option Plan of Rentrak Corporation
(Full title of the plan)
____________________
F. Kim Cox
Executive Vice President/Chief Financial Officer
Rentrak Corporation
One Airport Center
7700 N.E. Ambassador Place
Portland, OR 97220
(503) 284-7581
(Name, address and telephone number, including area code, of agent for service)
Copies to:
Scott R. Haber, Esq.
Latham & Watkins
505 Montgomery Street, Suite 1900
San Francisco, California 94111
(415) 391-0600
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Title of Amount Proposed Proposed Amount of
Securities To Be Maximum Maximum Registration
To Be Registered Offering Aggregate Fee
Registered Price Per Offering
Share(1) Price(1)
<S> <C> <C> <C> <C>
Common 200,000 $3.281 $656,250 $198.86
Stock, shares
par value
$0.001
per share
Preferred 200,000 (2) (2) $
Share rights
Purchase
Rights(2)
(1)Estimated solely for the purpose of computing the
registration fee, based on the average of the high and low
prices for the Common Stock as reported on the Nasdaq
National Market System on May 29, 1997.
(2)Rights are attached to and trade with Common Stock of Rentrak
Corporation. The value attributable to such Rights, if any,
is reflected in the market price of the Common Stock.
</TABLE>
PART I
Item 1. Plan Information
Not required to be filed with this Registration Statement.
Item 2. Registrant Information and Employee Plan AnnualInformation
Not required to be filed with this Registration Statement.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference.
The following documents filed with the Commission by Rentrak
Corporation (the "Company" or the "Registrant") are incorporated
herein by reference:
(a) The Registrant's Annual Report on Form 10-K for
the fiscal year ended March 31, 1996 (the "1996 Rentrak
Form 10-K");
(b) The portions of the Registrant's Proxy Statement
on Schedule 14A dated July 11, 1996 that have been
incorporated by reference into the 1996 Rentrak Form 10-
K;
(c) Quarterly Reports on Form 10-Q dated February 13,
1997, November 13, 1996 and August 12, 1996.
(d) Current Reports on Form 8-K dated January 2, 1997,
December 10, 1996 and April 2, 1996; and
(e) Description of the Registrant's Common Stock
contained in a Registration Statement on Form 8-A filed
with the Commission, including any amendment or report
filed for the purpose of updating such description.
All documents subsequently filed by the Registrant pursuant
to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior
to the filing of a post-effective amendment which indicates that
all securities offered hereby have been sold or which deregisters
all securities then remaining unsold, shall be deemed to be
incorporated by reference herein and to be a part hereof from the
date of filing of such documents.
Any statement contained in a document incorporated by
reference herein shall be deemed to be modified or superseded for
purposes hereof to the extent that a statement contained herein
(or in any other subsequently filed document which also is
incorporated by reference herein) modifies or supersedes such
statement. Any statement so modified or superseded shall not be
deemed to constitute a part hereof except as so modified or
superseded.
Item 4. Description of Securities
Not Applicable.
Item 5. Interests of Named Experts and Counsel
Not Applicable.
Item 6. Indemnification of Directors and Officers
Article VIII, Section 2 of the Company's Amended and
Restated Articles of Incorporation ("Article VIII") and Article
10 of the Company's Restated Bylaws ("Article 10") require the
Company to indemnify officers, directors and employees to the
fullest extent authorized by the Oregon Business Corporation Act
("the Act"). The effect of these provisions is summarized below
but the description is qualified in its entirety by reference to
the Act, Article VIII and Article 10.
Indemnification is granted in respect to any action, suit or
proceeding (other than an action by or in the right of the
corporation) against all expense, liability and loss reasonably
incurred (including attorneys' fees, judgments, fines, ERISA
excise taxes or penalties and amounts paid in settlement), if the
indemnitee's conduct was in good faith, the indemnitee
reasonably believed that his conduct was in the best interests of
the Company, or at least not opposed to its best interests, and,
with respect to any criminal proceeding, the indemnitee had no
reasonable cause to believe his conduct was unlawful.
Indemnification is not permitted in connection with a proceeding
in which a person is adjudged liable on the basis that personal
benefit was improperly received, unless indemnification is
permitted by a court upon a finding that the person is fairly and
reasonably entitled to indemnification in view of all the
relevant circumstances.
In addition, indemnification is granted in respect to any
proceeding by or in the right of the Company against the expenses
(including attorneys' fees) actually and reasonably incurred if
the person acted in good faith and a manner reasonably believed
to be in, or not opposed to, the best interests of the Company.
No right of indemnity is granted if the person is adjudged liable
to the Company, unless permitted by the court.
Termination of a proceeding by judgment, order, settlement,
conviction or upon a plea of nolo contendere or its equivalent is
not, of itself, determinative that the person did not meet the
standard of conduct described above. If wholly successful on the
merits of a proceeding, a person is entitled to indemnity as a
matter of right. Because the limits of indemnity under Oregon
law are not clearly defined, Article VIII and Article 10 may
provide indemnity broader than that described above.
Article VIII and Article 10 provide that the right of
indemnification is a contract right and include the right to be
paid by the Company the expenses incurred in defending a
proceeding in advance of its final disposition; provided that, if
required by Oregon law, the person seeking advances provides to
the Company an undertaking to repay advanced amounts if it is
determined by a final adjudication that the recipient is not
entitled to indemnity. Any person claiming indemnity is
explicitly authorized to sue the Company for payment and the
Company will have the burden of proving the claimant failed to
meet the standards of conduct making indemnity permissible. If
the person claiming indemnity is successful in whole or in part
in such a suit (or in a suit brought by the Company to recover an
advancement of expenses), the person claiming indemnity shall
also be entitled to be paid the expense of prosecuting (or
defending) the suit.
Article VIII and Article 10 also provide that the Company
may maintain insurance to protect itself and its directors,
officers, employees or agents against any expense, liability or
loss whether or not the Company has the power to indemnify such
person against such expense, liability or loss under Oregon law.
The Company currently has liability insurance to indemnify its
directors and officers against expense, liability or loss arising
from claims by reason of their acts or omissions as officers and
directors.
The rights of indemnification described above are not
exclusive of any other rights of indemnification to which the
persons indemnified may be entitled under any agreements,
statute, vote of shareholders, action of directors or otherwise.
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
Exhibit No. Description
4.1 The 1997 Non-Officer Employee Stock Option
Plan of Rentrak Corporation.
4.2 Form of stock option agreement for use with
The 1997 Non-Officer Employee Stock Option Plan of
Rentrak Corporation.
5.1 Opinion and Consent of Garvey, Schubert &
Barer.
23.1 Consent of Garvey, Schubert & Barer, Counsel
to Rentrak Corporation (included in opinion filed
as Exhibit 5.1).
23.2 Consent of Arthur Andersen LLP.
24.1 Power of Attorney (included on the signature page
of this Registration Statement).
_________________
Item 9. Undertakings
(a) The Registrant hereby undertakes:
(1) To file, during any period in which offers or
sales are being made, a post-effective amendment to this
registration statement:
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts
or events arising after the effective date of the
registration statement (or the most recent post-
effective amendment thereof) which, individually or in
the aggregate, represent a fundamental change in the
information set forth in the registration statement;
and
(iii) To include any material information
with respect to the plan of distribution not previously
disclosed in the registration statement or any material
change to such information in the registration
statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) shall
not apply to information contained in periodic reports filed by
the registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by
reference in this registration statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such post-effective
amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering
of such securities at that time shall be deemed to be the
initial bona fide offering thereof; and
(3) To remove from registration by means of a post-
effective amendment any of the securities being registered
which remain unsold at the termination of the offering.
(b) The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act of
1933, each filing of the registrant's annual report pursuant to
Section 13(a) or Section 15(d) of the Securities Exchange Act of
1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Securities
Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising
under the Securities Act of 1933 may be permitted to directors,
officers and controlling persons of the registrant pursuant to
the foregoing provisions, or otherwise, the registrant has been
advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as
expressed in the Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities
(other than the payment by the registrant of expenses incurred or
paid by a director, officer or controlling person of the
registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in
the Act and will be governed by the final adjudication of such
issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
the registrant certifies that it has reasonable grounds to
believe that it meets all of the requirements for filing on Form
S-8 and has duly caused this registration statement to be signed
on its behalf by the undersigned, thereunto duly authorized, in
the City of Portland, State of Oregon, on the 5th day of June,
1997.
RENTRAK CORPORATION
By /s/ F. Kim Cox
F. Kim Cox
Executive Vice President/ChiefFinancial Officer
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears on the signature page to this Registration Statement
constitutes and appoints Ron Berger and F. Kim Cox, and each of them,
his true and lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, for him and in his name, place and
stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Registration Statement,
and to file the same, with all exhibits thereto, and other documents
in connection therewith, with the Securities and Exchange Commission,
and grants unto said attorneys-in-fact and agents, and each of them,
full power and authority to do and perform each and every act and
thing requisite and necessary to be done in and about the premises,
as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorneys-in-
fact and agents, or each of them, or his substitute, may lawfully do
or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as
amended, this Registration Statement has been signed by the following
persons in the capacities and on the dates indicated:
Signature Title Date
/s/ Ron Berger April 11
President and Chief ____________, 1997
Ron Berger Executive Officer and
Chairman of the Board
/s/ F. Kim Cox April 11
Executive Vice President/____________, 1997
F. Kim Cox Chief Financial Officer
/s/ Peter Dal Bianco April 10
Director ____________, 1997
Peter Dal Bianco
/s/ James Jimirro April 10
Director ____________, 1997
James Jimirro
/s/ Bill LeVine April 10
Director ____________, 1997
Bill LeVine
/s/ Muneaki Masuda April 23
Director ____________, 1997
Muneaki Masuda
/s/ Steve Roberts April 10
Director ____________, 1997
Stephen Roberts
/s/ Herbert M. Fischer April 23
Director ____________, 1997
Herbert M. Fischer
EXHIBIT INDEX
Exhibit
Number Description
4.1 The 1997 Non-Officer Employee Stock Option
Plan of Rentrak Corporation.
4.2 Form of stock option agreement under The
1997 Non-Officer Employee Stock Option Plan of
Rentrak Corporation.
5.1 Opinion and Consent of Garvey, Schubert &
Barer.
23.1 Consent of Garvey, Schubert & Barer, Counsel
to Rentrak Corporation (included in opinion filed
as Exhibit 5.1).
23.2 Consent of Arthur Andersen LLP.
24.1 Power of Attorney (included on the signature page
of this Registration Statement).
EXHIBIT 4.1
THE 1997 NON-OFFICER EMPLOYEE
STOCK OPTION PLAN
OF
RENTRAK CORPORATION
Rentrak Corporation, an Oregon corporation, has adopted
The 1997 Non-Officer Employee Stock Option Plan of Rentrak
Corporation (the "Plan"), effective March 31, 1997, for the
benefit of its eligible Employees (as defined below) and
consultants. An eligible Employee or consultant shall mean any
Employee or consultant of the Company or any Subsidiary who is
not an officer or director of the Company.
The purposes of this Plan are as follows:
(1) To provide an additional incentive for eligible
Employees and consultants to further the growth, development and
financial success of the Company by personally benefiting through
the ownership of options to purchase Company stock which
recognize such growth, development and financial success.
(2) To enable the Company to obtain and retain the
services of eligible Employees and consultants considered
essential to the long range success of the Company by offering
them an opportunity to own stock in the Company, which will
reflect the growth, development and financial success of the
Company.
ARTICLE I
DEFINITIONS
1.1. General. Wherever the following terms are used in
this Plan they shall have the meanings specified below, unless
the context clearly indicates otherwise.
1.2. Board. "Board" shall mean the Board of Directors
of the Company.
1.3. Change in Control. "Change in Control" shall mean
a change in ownership or control of the Company effected through
either of the following transactions:
(a) any person or related group of persons (other than
the Company or a person that directly or indirectly controls, is
controlled by, or is under common control with, the Company)
directly or indirectly acquires beneficial ownership (within the
meaning of Rule 13d-3 under the Exchange Act) of securities
possessing more than fifty percent (50%) of the total combined
voting power of the Company's outstanding securities pursuant to
a tender or exchange offer made directly to the Company's
stockholders which the Board does not recommend such stockholders
to accept; or
(b) there is a change in the composition of the Board
over a period of thirty-six (36) consecutive months (or less)
such that a majority of the Board members (rounded up to the
nearest whole number) ceases, by reason of one or more proxy
contests for the election of Board members, to be comprised of
individuals who either (i) have been Board members continuously
since the beginning of such period or (ii) have been elected or
nominated for election as Board members during such period by at
least a majority of the Board members described in clause (i) who
were still in office at the time such election or nomination was
approved by the Board.
1.4. Code. "Code" shall mean the Internal Revenue Code
of 1986, as amended.
1.5. Committee. "Committee" shall mean the Stock
Option Committee of the Board, or another committee of the Board,
appointed as provided in Section 6.1.
1.6. Common Stock. "Common Stock" shall mean the
common stock of the Company, par value $.001 per share, and any
equity security of the Company issued or authorized to be issued
in the future, but excluding any preferred stock and any
warrants, options or other rights to purchase Common Stock. Debt
securities of the Company convertible into Common Stock shall be
deemed equity securities of the Company.
1.7. Company. "Company" shall mean Rentrak
Corporation, an Oregon corporation.
1.8. Corporate Transaction. "Corporate Transaction"
shall mean any of the following stockholder-approved transactions
to which the Company is a party:
(a) a merger or consolidation in which the Company is
not the surviving entity, except for a transaction the principal
purpose of which is to change the State in which the Company is
incorporated, form a holding company or effect a similar
reorganization as to form whereupon this Plan and all Options are
assumed by the successor entity;
(b) the sale, transfer, exchange or other disposition
of all or substantially all of the assets of the Company, in
complete liquidation or dissolution of the Company in a
transaction not covered by the exceptions to clause (a), above;
or
(c) any reverse merger in which the Company is the
surviving entity but in which securities possessing more than
fifty percent (50%) of the total combined voting power of the
Company's outstanding securities are transferred or issued to a
person or persons different from those who held such securities
immediately prior to such merger.
1.9. Employee. "Employee" shall mean any employee (as
defined in accordance with Section 3401(c) of the Code) of the
Company, or of any corporation which is a Subsidiary.
1.10. Exchange Act. "Exchange Act" shall mean the
Securities Exchange Act of 1934, as amended.
1.11. Fair Market Value. "Fair Market Value" of a share
of Common Stock as of a given date shall be (i) the closing price
of a share of Common Stock on the principal exchange on which
shares of Common Stock are then trading, if any (or as reported
on any composite index which includes such principal exchange),
on the trading day previous to such date, or if shares were not
traded on the trading day previous to such date, then on the next
preceding date on which a trade occurred, or (ii) if Common Stock
is not traded on an exchange but is quoted on NASDAQ or a
successor quotation system, the mean between the closing
representative bid and asked prices for the Common Stock on the
trading day previous to such date as reported by NASDAQ or such
successor quotation system; or (iii) if Common Stock is not
publicly traded on an exchange and not quoted on NASDAQ or a
successor quotation system, the Fair Market Value of a share of
Common Stock as established by the Committee acting in good
faith.
1.12. Option. "Option" shall mean a non-qualified
option to purchase Common Stock granted under Article III of this
Plan.
1.13. Optionee. "Optionee" shall mean an eligible
Employee or consultant granted an Option under this Plan.
1.14. Plan. "Plan" shall mean The 1997 Non-Officer
Employee Stock Option Plan of Rentrak Corporation.
1.15. QDRO. "QDRO" shall mean a qualified domestic
relations order as defined by the Code or Title I of the Employee
Retirement Income Security Act of 1974, as amended, or the rules
thereunder.
1.16. Subsidiary. "Subsidiary" shall mean any
corporation in an unbroken chain of corporations beginning with
the Company if each of the corporations other than the last
corporation in the unbroken chain then owns stock possessing 50
percent or more of the total combined voting power of all classes
of stock in one of the other corporations in such chain.
1.17. Termination of Consultancy. "Termination of
Consultancy" shall mean the time when the engagement of an
Optionee as a consultant to the Company or a Subsidiary is
terminated for any reason, with or without cause, including, but
not by way of limitation, by resignation, discharge, death or
retirement; but excluding terminations where there is a
simultaneous commencement of employment with the Company or any
Subsidiary. The Committee, in its sole and absolute discretion,
shall determine the effect of all matters and questions relating
to Termination of Consultancy, including, but not by way of
limitation, the question of whether a Termination of Consultancy
resulted from a discharge for good cause, and all questions of
whether particular leaves of absence constitute Terminations of
Consultancy. Notwithstanding any other provision of this Plan,
the Company or any Subsidiary has an absolute and unrestricted
right to terminate a consultant's service at any time for any
reason whatsoever, with or without cause, except to the extent
expressly provided otherwise in writing.
1.18. Termination of Employment. "Termination of
Employment" shall mean the time when the employee-employer
relationship between an Optionee and the Company or any
Subsidiary is terminated for any reason, with or without cause,
including, but not by way of limitation, a termination by
resignation, discharge, death, disability or retirement; but
excluding (i) terminations where there is a simultaneous
reemployment or continuing employment of an Optionee by the
Company or any Subsidiary, (ii) at the sole and absolute
discretion of the Committee, terminations which result in a
temporary severance of the employee-employer relationship, and
(iii) at the sole and absolute discretion of the Committee,
terminations which are followed by the simultaneous establishment
of a consulting relationship by the Company or a Subsidiary with
the former employee. The Committee, in its sole and absolute
discretion, shall determine the effect of all matters and
questions relating to Termination of Employment, including, but
not by way of limitation, the question of whether a Termination
of Employment resulted from a discharge for good cause, and all
questions of whether particular leaves of absence constitute
Terminations of Employment. Notwithstanding any other provision
of this Plan, the Company or any Subsidiary has an absolute and
unrestricted right to terminate an Employee's employment at any
time for any reason whatsoever, with or without cause, except to
the extent expressly provided otherwise in writing.
ARTICLE II
SHARES SUBJECT TO PLAN
2.1. Shares Subject to Plan. The shares of stock
subject to Options shall be Common Stock, initially shares of the
Company's Common Stock, par value $.001 per share. The aggregate
number of such shares which may be issued upon exercise of such
Options under the Plan shall not exceed two hundred thousand
(200,000). The shares of Common Stock issuable upon exercise of
such Options may be either previously authorized but unissued
shares or treasury shares.
2.2. Add-back of Options. If any Option expires or is
canceled without having been fully exercised, or is exercised in
whole or in part for cash as permitted by this Plan, the number
of shares subject to such Option but as to which such Option was
not exercised prior to its expiration, cancellation or exercise
may again be optioned hereunder, subject to the limitations of
Section 2.1. Furthermore, any shares subject to Options which
are adjusted pursuant to Section 7.3 and become exercisable with
respect to shares of stock of another corporation shall be
considered canceled and may again be optioned hereunder, subject
to the limitations of Section 2.1. Shares of Common Stock which
are delivered by the Optionee or withheld by the Company upon the
exercise of any Option under this Plan, in payment of the
exercise price thereof, may again be optioned hereunder, subject
to the limitations of Section 2.1.
ARTICLE III
GRANTING OF OPTIONS
3.1. Eligibility. Any Employee or consultant selected
by the Committee pursuant to Section 3.2(a)(i) shall be eligible
to be granted an Option, provided that an eligible Employee or
consultant shall mean any Employee or consultant of the Company
or any Subsidiary who is not an officer or director of the
Company.
3.2. Granting of Options
(a) The Committee shall from time to time, in its sole
and absolute discretion, and subject to applicable limitations of
this Plan:
(i) Determine which Employees are eligible
Employees and select from among the eligible Employees or
consultants (including Employees or consultants who have
previously received Options under this Plan) such of them as
in its opinion should be granted Options;
(ii) Determine the number of shares to be
subject to such Options granted to the selected eligible
Employees or consultants; and
(iii) Determine the terms and conditions of
such Options, consistent with this Plan.
Notwithstanding the above, the Committee may delegate
certain powers relating to the granting of Options as it deems
appropriate to executive officers of the Company.
(b) Upon the selection of an eligible Employee or
consultant to be granted an Option, the Committee shall instruct
the Secretary of the Company to issue the Option and may impose
such conditions on the grant of the Option as it deems
appropriate. Without limiting the generality of the preceding
sentence, the Committee may, in its sole and absolute discretion
and on such terms as it deems appropriate, require as a condition
on the grant of an Option to an Employee or consultant that the
Employee or consultant surrender for cancellation some or all of
the unexercised Options which have been previously granted to him
under this Plan or otherwise. An Option, the grant of which is
conditioned upon such surrender, may have an option price lower
(or higher) than the exercise price of such surrendered Option or
other award, may cover the same (or a lesser or greater) number
of shares as such surrendered Option or other award, may contain
such other terms as the Committee deems appropriate, and shall be
exercisable in accordance with its terms, without regard to the
number of shares, price, exercise period or any other term or
condition of such surrendered Option.
ARTICLE IV
TERMS OF OPTIONS
4.1. Option Agreement. Each Option shall be evidenced
by a written Stock Option Agreement, which shall be executed by
the Optionee and an authorized officer of the Company and which
shall contain such terms and conditions as the Committee shall
determine, consistent with this Plan.
4.2. Option Price. The price per share of the shares
subject to each Option shall be set by the Committee; provided,
however, that such price shall be no less than the par value of a
share of Common Stock, unless otherwise permitted by applicable
state law.
4.3. Option Term. The term of an Option shall be set
by the Committee in its sole and absolute discretion. The
Committee may extend the term of any outstanding Option in
connection with any Termination of Employment or Termination of
Consultancy of the Optionee, or amend any other term or condition
of such Option relating to such a termination.
4.4. Option Vesting
(a) The period during which the right to exercise an
Option in whole or in part vests in the Optionee shall be set by
the Committee and the Committee may determine that an Option may
not be exercised in whole or in part for a specified period after
it is granted. At any time after grant of an Option, the
Committee may, in its sole and absolute discretion and subject to
whatever terms and conditions it selects, accelerate the period
during which an Option vests.
(b) No portion of an Option which is unexercisable at
Termination of Employment or Termination of Consultancy, as
applicable, shall thereafter become exercisable, except as may be
otherwise provided by the Committee either in the Stock Option
Agreement or by action of the Committee following the grant of
the Option.
4.5 Consideration. In consideration of the granting
of an Option, the Optionee shall agree, in the written Stock
Option Agreement, to remain in the employ of or to consult for,
as applicable, the Company or any Subsidiary for a period of at
least one year (or such shorter period as may be fixed in the
Stock Option Agreement or by action of the Committee following
grant of the Option) after the Option is granted. Nothing in
this Plan or in any Stock Option Agreement hereunder shall confer
upon any Optionee any right to continue in the employ of, or as a
consultant for, the Company or any Subsidiary, or shall interfere
with or restrict in any way the rights of the Company and any
Subsidiary, which are hereby expressly reserved, to discharge any
Optionee at any time for any reason whatsoever, with or without
good cause.
ARTICLE V
EXERCISE OF OPTIONS
5.1. Partial Exercise. An exercisable Option may be
exercised in whole or in part. However, an Option shall not be
exercisable with respect to fractional shares and the Committee
may require, by the terms of the Option, that a partial exercise
involve a minimum number of shares.
5.2. Manner of Exercise. All or a portion of an
exercisable Option shall be deemed exercised upon delivery of all
of the following to the Secretary of the Company or his office:
(a) A written notice complying with the applicable
rules established by the Committee stating that the Option, or a
portion thereof, is exercised. The notice shall be signed by the
Optionee or other person then entitled to exercise the Option or
such portion;
(b) Such representations and documents as the
Committee, in its sole and absolute discretion, deems necessary
or advisable to effect compliance with all applicable provisions
of the Securities Act of 1933, as amended, and any other federal
or state securities laws or regulations. The Committee may, in
its sole and absolute discretion, also take whatever additional
actions it deems appropriate to effect such compliance including,
without limitation, placing legends on share certificates and
issuing stop-transfer notices to agents and registrars;
(c) In the event that the Option shall be exercised
pursuant to Section 7.1 by any person or persons other than the
Optionee, appropriate proof of the right of such person or
persons to exercise the Option; and
(d) Full cash payment to the Secretary of the Company
for the shares with respect to which the Option, or portion
thereof, is exercised. However, the Committee may in its sole
and absolute discretion (i) allow a delay in payment up to thirty
(30) days from the date the Option, or portion thereof, is
exercised; (ii) allow payment, in whole or in part, through the
delivery of shares of Common Stock owned by the Optionee, duly
endorsed for transfer to the Company with a Fair Market Value on
the date of delivery equal to the aggregate exercise price of the
Option or exercised portion thereof; (iii) allow payment, in
whole or in part, through the surrender of shares of Common Stock
then issuable upon exercise of the Option having a Fair Market
Value on the date of Option exercise equal to the aggregate
exercise price of the Option or exercised portion thereof;
(iv) allow payment, in whole or in part, through the delivery of
property of any kind which constitutes good and valuable
consideration; (v) allow payment, in whole or in part, through
the delivery of a full recourse promissory note bearing interest
(at no less than such rate as shall then preclude the imputation
of interest under the Code) and payable upon such terms as may be
prescribed by the Committee or the Board; (vi) allow payment, in
whole or in part, through the delivery of a notice that the
Optionee has placed a market sell order with a broker with
respect to shares of Common Stock then issuable upon exercise of
the Option, and that the broker has been directed to pay a
sufficient portion of the net proceeds of the sale to the Company
in satisfaction of the Option exercise price; or (vii) allow
payment through any combination of the consideration provided in
the foregoing subparagraphs (ii), (iii), (iv), (v) and (vi). In
the case of a promissory note, the Committee may also prescribe
the form of such note and the security to be given for such note.
The Option may not be exercised, however, by delivery of a
promissory note or by a loan from the Company when or where such
loan or other extension of credit is prohibited by law.
5.3. Conditions to Issuance of Stock Certificates. The
Company shall not be required to issue or deliver any certificate
or certificates for shares of stock purchased upon the exercise
of any Option or portion thereof prior to fulfillment of all of
the following conditions:
(a) The admission of such shares to listing on all
stock exchanges on which such class of stock is then listed;
(b) The completion of any registration or other
qualification of such shares under any state or federal law, or
under the rulings or regulations of the Securities and Exchange
Commission or any other governmental regulatory body which the
Committee or Board shall, in its sole and absolute discretion,
deem necessary or advisable;
(c) The obtaining of any approval or other clearance
from any state or federal governmental agency which the Committee
shall, in its sole and absolute discretion, determine to be
necessary or advisable;
(d) The lapse of such reasonable period of time
following the exercise of the Option as the Committee may
establish from time to time for reasons of administrative
convenience; and
(e) The receipt by the Company of full payment for
such shares, including payment of any applicable withholding tax.
5.4. Rights as Stockholders. The holders of Options
shall not be, nor have any of the rights or privileges of,
stockholders of the Company in respect of any shares purchasable
upon the exercise of any part of an Option unless and until
certificates representing such shares have been issued by the
Company to such holders.
5.5. Ownership and Transfer Restrictions. The
Committee, in its sole and absolute discretion, may impose such
restrictions on the ownership and transferability of the shares
purchasable upon the exercise of an Option as it deems
appropriate. Any such restriction shall be set forth in the
respective Stock Option Agreement and may be referred to on the
certificates evidencing such shares. The Committee may direct
that the certificates evidencing shares acquired by exercise of
an Option refer to such requirement to give prompt notice of
disposition.
ARTICLE VI
ADMINISTRATION
6.1. Stock Option Committee. The Stock Option
Committee (or another committee or a subcommittee of the Board
assuming the functions of the Committee under this Plan) shall
consist solely of two or more Directors appointed by and holding
office at the pleasure of the Board. Appointment of Committee
members shall be effective upon acceptance of appointment.
Committee members may resign at any time by delivering written
notice to the Board. Vacancies in the Committee may be filled by
the Board.
6.2. Duties and Powers of Committee. It shall be the
duty of the Committee to conduct the general administration of
this Plan in accordance with its provisions. The Committee shall
have the power to interpret this Plan and the agreements pursuant
to which Options are granted, and to adopt such rules for the
administration, interpretation, and application of this Plan as
are consistent therewith and to interpret, amend or revoke any
such rules. Any such grant under this Plan need not be the same
with respect to each Optionee. In its sole and absolute
discretion, the Board may at any time and from time to time
exercise any and all rights and duties of the Committee under
this Plan.
6.3. Majority Rule; Unanimous Written Consent. In
administering the Plan, the Committee shall act by a majority of
its members in attendance at a meeting at which a quorum is
present or by a memorandum or other written instrument signed by
all members of the Committee.
6.4. Compensation; Professional Assistance; Good Faith
Actions. Members of the Committee shall receive such
compensation for their services as members as may be determined
by the Board. All expenses and liabilities which members of the
Committee incur in connection with the administration of this
Plan shall be borne by the Company. The Committee may, with the
approval of the Board, employ attorneys, consultants,
accountants, appraisers, brokers, or other persons. The
Committee, the Company and the Company's officers and directors
shall be entitled to rely upon the advice, opinions or valuations
of any such persons. All actions taken and all interpretations
and determinations made by the Committee or the Board in good
faith shall be final and binding upon all Optionees, the Company
and all other interested persons. No members of the Committee or
Board shall be personally liable for any action, determination or
interpretation made in good faith with respect to this Plan and
Options, and all members of the Committee and the Board shall be
fully protected by the Company in respect of any such action,
determination or interpretation.
ARTICLE VII
MISCELLANEOUS PROVISIONS
7.1. Not Transferable. Options may not be sold,
pledged, assigned, or transferred in any manner other than by
will or the laws of descent and distribution or pursuant to a
QDRO, unless and until the shares underlying such Options have
been issued, and all restrictions applicable to such shares have
lapsed. No Option or interest or right therein shall be liable
for the debts, contracts or engagements of the Optionee or his
successors in interest or shall be subject to disposition by
transfer, alienation, anticipation, pledge, encumbrance,
assignment or any other means whether such disposition be
voluntary or involuntary or by operation of law by judgment,
levy, attachment, garnishment or any other legal or equitable
proceedings (including bankruptcy), and any attempted disposition
thereof shall be null and void and of no effect, except to the
extent that such disposition is permitted by the preceding
sentence.
During the lifetime of the Optionee, only he may
exercise an Option (or any portion thereof) granted to him under
the Plan, unless it has been disposed of pursuant to a QDRO.
After the death of the Optionee, any exercisable portion of an
Option may, prior to the time when such portion becomes
unexercisable under the Plan or the applicable Stock Option
Agreement, be exercised by his personal representative or by any
person empowered to do so under the deceased Optionee's will or
under the then applicable laws of descent and distribution.
7.2. Amendment, Suspension or Termination of this Plan.
Except as otherwise provided in this Section 7.2, this Plan may
be wholly or partially amended or otherwise modified, suspended
or terminated at any time or from time to time by the Board or
the Committee, provided that no action of the Board or the
Committee may be taken that would otherwise require stockholder
approval as a matter of applicable law, regulation or rule. No
amendment, suspension or termination of this Plan shall, without
the consent of the holder of Options, alter or impair any rights
or obligations under any Options theretofore granted, unless the
grant itself otherwise expressly so provides. No Options may be
granted during any period of suspension or after termination of
this Plan.
7.3. Changes in Common Stock or Assets of the Company,
Acquisition or Liquidation of the Company and Other Corporate
Events.
(a) In the event that the Committee determines that
any dividend or other distribution (whether in the form of cash,
Common Stock, other securities, or other property),
recapitalization, reclassification, stock split, reverse stock
split, reorganization, merger, consolidation, split-up, spin-off,
combination, repurchase, liquidation, dissolution, or sale,
transfer, exchange or other disposition of all or substantially
all of the assets of the Company (including, but not limited to,
a Corporate Transaction), or exchange of Common Stock or other
securities of the Company, issuance of warrants or other rights
to purchase Common Stock or other securities of the Company, or
other similar corporate transaction or event, in the Committee's
sole and absolute discretion, affects the Common Stock such that
an adjustment is determined by the Committee to be appropriate in
order to prevent dilution or enlargement of the benefits or
potential benefits intended to be made available under the Plan
or with respect to an Option, then the Committee shall, in such
manner as it may deem equitable, adjust any or all of
(i) the number and kind of shares of Common
Stock (or other securities or property) with respect to
which Options may be granted under the Plan, (including, but
not limited to, adjustments of the limitations in Section
2.1 on the maximum number and kind of shares which may be
issued);
(ii) the number and kind of shares of Common
Stock (or other securities or property) subject to
outstanding Options; and
(iii) the grant or exercise price with respect
to any Option.
(b) In the event of any Corporate Transaction or other
transaction or event described in Section 7.3(a) or any unusual
or nonrecurring transactions or events affecting the Company, any
affiliate of the Company, or the financial statements of the
Company or any affiliate, or of changes in applicable laws,
regulations, or accounting principles, the Committee in its sole
and absolute discretion is hereby authorized to take any one or
more of the following actions whenever the Committee determines
that such action is appropriate in order to prevent dilution or
enlargement of the benefits or potential benefits intended to be
made available under the Plan or with respect to any option under
this Plan, to facilitate such transactions or events or to give
effect to such changes in laws, regulations or principles:
(i) In its sole and absolute discretion, and
on such terms and conditions as it deems appropriate, the
Committee may provide, either by the terms of the agreement
or by action taken prior to the occurrence of such
transaction or event and either automatically or upon the
Optionee's request, for either the purchase of any such
Option for an amount of cash equal to the amount that could
have been attained upon the exercise of such option, or
realization of the Optionee's rights had such Option been
currently exercisable or payable or fully vested or the
replacement of such Option with other rights or property
selected by the Committee in its sole and absolute
discretion;
(ii) In its sole and absolute discretion, the
Committee may provide, either by the terms of such Option or
by action taken prior to the occurrence of such transaction
or event that it cannot be exercised after such event;
(iii) In its sole and absolute discretion, and
on such terms and conditions as it deems appropriate, the
Committee may provide, either by the terms of such Option or
by action taken prior to the occurrence of such transaction
or event, that for a specified period of time prior to such
transaction or event, such Option shall be exercisable as to
all shares covered thereby, notwithstanding anything to the
contrary in (i) Section 4.4 or (ii) the provisions of such
Option;
(iv) In its sole and absolute discretion, and
on such terms and conditions as it deems appropriate, the
Committee may provide, either by the terms of such Option or
by action taken prior to the occurrence of such transaction
or event, that upon such event, such Option be assumed by
the successor or survivor corporation, or a parent or
subsidiary thereof, or shall be substituted for by similar
options covering the stock of the successor or survivor
corporation, or a parent or subsidiary thereof, with
appropriate adjustments as to the number and kind of shares
and prices; and
(v) In its sole and absolute discretion, and
on such terms and conditions as it deems appropriate, the
Committee may make adjustments in the number and type of
shares of Common Stock subject to outstanding Options and/or
in the terms and conditions of (including the exercise
price), and the criteria included in, outstanding Options
and options which may be granted in the future.
(c) The number of shares of Common Stock subject to
any option shall always be rounded to the next whole number.
7.4. Tax Withholding. The Company shall be entitled to
require payment in cash or deduction from other compensation
payable to each Optionee of any sums required by federal, state
or local tax law to be withheld with respect to the issuance,
vesting or exercise of any Option. The Committee may in its sole
and absolute discretion and in satisfaction of the foregoing
requirement allow such Optionee to elect to have the Company
withhold shares of Common Stock otherwise issuable under such
Option or other award (or allow the return of shares of Common
Stock) having a Fair Market Value equal to the sums required to
be withheld.
7.5. Loans. The Committee may, in its sole and
absolute discretion, extend one or more loans to eligible
Employees in connection with the exercise or receipt of an Option
granted under this Plan. The terms and conditions of any such
loan shall be set by the Committee.
7.6. Forfeiture Provisions. Pursuant to its general
authority to determine the terms and conditions applicable to
awards under the Plan, the Committee shall have the right to
provide, in the terms of Options made under the Plan, or to
require the recipient to agree by separate written instrument,
that (i) any proceeds, gains or other economic benefit actually
or constructively received by the recipient upon any receipt or
exercise of the Option, or upon the receipt or resale of any
Common Stock underlying such Option, must be paid to the Company,
and (ii) the Option shall terminate and any unexercised portion
of such Option (whether or not vested) shall be forfeited, if (a)
a Termination of Employment or Termination of Consultancy occurs
prior to a specified date, or within a specified time period
following receipt or exercise of the award, or (b) the recipient
at any time, or during a specified time period, engages in any
activity in competition with the Company, or which is inimical,
contrary or harmful to the interests of the Company, as further
defined by the Committee.
7.7. Effect of Plan Upon Compensation and Incentive
Plans. The adoption of this Plan shall not affect any other
compensation or incentive plans in effect for the Company or any
Subsidiary. Nothing in this Plan shall be construed to limit the
right of the Company (i) to establish any other forms of
incentives or compensation for Employees or consultants of the
Company or any Subsidiary or (ii) to grant or assume options
otherwise than under this Plan in connection with any proper
corporate purpose including but not by way of limitation, the
grant or assumption of options in connection with the acquisition
by purchase, lease, merger, consolidation or otherwise, of the
business, stock or assets of any corporation, partnership,
limited liability company, firm or association.
7.8. Compliance with Laws. This Plan and the granting
and vesting of Options under this Plan and the issuance and
delivery of shares of Common Stock and the payment of money under
this Plan or under Options granted hereunder are subject to
compliance with all applicable federal and state laws, rules and
regulations (including but not limited to state and federal
securities law and federal margin requirements) and to such
approvals by any listing, regulatory or governmental authority as
may, in the opinion of counsel for the Company, be necessary or
advisable in connection therewith. Any securities delivered
under this Plan shall be subject to such restrictions, and the
person acquiring such securities shall, if requested by the
Company, provide such assurances and representations to the
Company as the Company may deem necessary or desirable to assure
compliance with all applicable legal requirements. To the extent
permitted by applicable law, the Plan and Options granted
hereunder shall be deemed amended to the extent necessary to
conform to such laws, rules and regulations.
7.9. Titles. Titles are provided herein for
convenience only and are not to serve as a basis for
interpretation or construction of this Plan.
7.10. Governing Law. This Plan and any agreements
hereunder shall be administered, interpreted and enforced under
the internal laws of the State of Oregon without regard to
conflicts of laws thereof.
* * *
I hereby certify that the foregoing Plan was duly
adopted by the Board of Directors of Rentrak Corporation on March
31, 1997.
Executed on this 6th day of May 1997.
/s/ F. Kim Cox
F. Kim Cox
Secretary
EXHIBIT 4.2
NON-QUALIFIED STOCK OPTION AGREEMENT
THIS AGREEMENT, dated ____________, 199__, is made by
and between Rentrak Corporation, an Oregon corporation
(hereinafter referred to as "Company"), and
_________________________, an employee of the Company or a
Subsidiary of the Company (hereinafter referred to as
"Optionee"):
WHEREAS, the Company wishes to afford the Optionee the
opportunity to purchase shares of its $0.001 par value Common
Stock; and
WHEREAS, the Company wishes to carry out the Plan (the
terms of which are hereby incorporated by reference and made a
part of this Agreement); and
WHEREAS, the Committee, appointed to administer the
Plan, has delegated to certain officers of the Company the
authority to implement grants of Options under the Plan; and
WHEREAS, such officers have determined that it would be
to the advantage and best interest of the Company and its
shareholders to grant the non-qualified Option provided for
herein to the Optionee as an inducement to enter into or remain
in the service of the Company or its Subsidiaries and as an
incentive for increased efforts during such service;
NOW, THEREFORE, in consideration of the mutual
covenants herein contained and other good and valuable
consideration, receipt of which is hereby acknowledged, the
parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Whenever the following terms are used in this
Agreement, they shall have the meaning specified below unless the
context clearly indicates to the contrary. The masculine pronoun
shall include the feminine and neuter, and the singular the
plural, where the context so indicates. All capitalized terms
used herein without definition shall have the meanings ascribed
to such terms in the Plan.
Section 1.1. - Board
"Board" shall mean the Board of Directors of the
Company.
Section 1.2. - Code
"Code" shall mean the Internal Revenue Code of 1986, as
amended.
Section 1.3. - Committee
"Committee" shall mean the Stock Option Committee of
the Board, or another committee of the Board, appointed as
provided in Section 6.1 of the Plan.
Section 1.4. - Company
"Company" shall mean Rentrak Corporation, an Oregon
corporation.
Section 1.5. - Exchange Act
"Exchange Act" shall mean the Securities Exchange Act
of 1934, as amended.
Section 1.6. - Option
"Option" shall mean the non-qualified option to
purchase Common Stock of the Company granted under this
Agreement.
Section 1.7. - Plan
"Plan" shall mean The 1997 Non-Officer Employee Stock
Option Plan of Rentrak Corporation, as amended from time to time.
Section 1.8. - Rule 16b-3
"Rule 16b-3" shall mean that certain Rule 16b-3 under
the Exchange Act, as such Rule may be amended from time to time.
Section 1.9. - Secretary
"Secretary" shall mean the Secretary of the Company.
Section 1.10. - Securities Act
"Securities Act" shall mean the Securities Act of 1933,
as amended.
Section 1.11. - Subsidiary
"Subsidiary" shall mean any corporation in an unbroken
chain of corporations beginning with the Company if each of the
corporations other than the last corporation in the unbroken
chain then owns stock possessing fifty percent (50%) or more of
the total combined voting power of all classes of stock in one
(1) of the other corporations in such chain.
Section 1.12. - Termination of Employment
"Termination of Employment" shall mean the time when
the employee-employer relationship between the Optionee and the
Company or any Subsidiary is terminated for any reason, with or
without cause, including, but not by way of limitation, a
termination by resignation, discharge, death, disability or
retirement; but excluding (i) terminations where there is a
simultaneous reemployment or continuing employment of the
Optionee by the Company or any Subsidiary, (ii) at the discretion
of the Committee, terminations which result in a temporary
severance of the employee-employer relationship, and (iii) at the
discretion of the Committee, terminations which are followed by
the simultaneous establishment of a consulting relationship by
the Company or a Subsidiary with the former employee. The
Committee, in its absolute discretion, shall determine the effect
of all matters and questions relating to Termination of
Employment, including, but not by way of limitation, the question
of whether a Termination of Employment resulted from a discharge
for good cause, and all questions of whether particular leaves of
absence constitute Terminations of Employment. Notwithstanding
any other provision of this Agreement or of the Plan, the Company
or any Subsidiary has an absolute and unrestricted right to
terminate the Optionee's employment at any time for any reason
whatsoever, with or without cause, except to the extent expressly
provided otherwise in writing.
ARTICLE II
GRANT OF OPTION
Section 2.1. - Grant of Option
In consideration of the Optionee's agreement to remain
in the employ of the Company or its Subsidiaries and for other
good and valuable consideration, on the date hereof the Company
irrevocably grants to the Optionee the option to purchase any
part or all of an aggregate of ________ shares of its $0.001 par
value Common Stock upon the terms and conditions set forth in
this Agreement.
Section 2.2. - Purchase Price
The purchase price of the shares of stock covered by
the Option shall be $_____ per share, without commission or other
charge.
Section 2.3. - Consideration to Company
In consideration of the granting of this Option by the
Company, the Optionee agrees to render faithful and efficient
services to the Company or a Subsidiary, with such duties and
responsibilities as the Company shall from time to time
prescribe, for a period of at least [one (1) year] from the date
this Option is granted. Nothing in this Agreement or in the Plan
shall confer upon the Optionee any right to continue in the
employ of the Company or any Subsidiary, or as a director of the
Company, or shall interfere with or restrict in any way the
rights of the Company and its Subsidiaries, which are hereby
expressly reserved, to discharge the Optionee at any time for any
reason whatsoever, with or without cause.
Section 2.4. - Adjustments in Option
The Committee shall make adjustments with respect to
the Option in accordance with the provisions of Section 7.3 of
the Plan.
ARTICLE III
PERIOD OF EXERCISABILITY
Section 3.1. - Commencement of Exercisability
(a) Subject to Section 5.6, the Option shall become
exercisable in [five (5) cumulative installments as follows:
(i) The first installment shall consist of twenty
percent (20%) of the shares covered by the Option and shall
become exercisable on the first anniversary of the date the
Option is granted.
(ii) The second installment shall consist of
twenty percent (20%) of the shares covered by the Option and
shall become exercisable on the second anniversary of the
date the Option is granted.
(iii) The third installment shall consist of twenty
percent (20%) of the shares covered by the Option and shall
become exercisable on the third anniversary of the date the
Option is granted.
(iv) The fourth installment shall consist of
twenty percent (20%) of the shares covered by the Option and
shall become exercisable on the fourth anniversary of the
date the Option is granted.
(v) The fifth installment shall consist of twenty
percent (20%) of the shares covered by the Option and shall
become exercisable on the fifth anniversary of the date the
Option is granted.] [or other installment schedule.]
(b) No portion of the Option which is unexercisable at
Termination of Employment shall thereafter become exercisable.
Section 3.2. - Duration of Exercisability
The installments provided for in Section 3.1 are
cumulative. Each such installment which becomes exercisable
pursuant to Section 3.1 shall remain exercisable until it becomes
unexercisable under Section 3.3.
Section 3.3. - Expiration of Option
The Option may not be exercised to any extent by anyone
after the first to occur of the following events:
(a) The expiration of ten (10) years from the date the
Option was granted; or
(b) The time of the Optionee's Termination of
Employment unless such Termination of Employment results from his
death, his retirement, his disability or his being discharged not
for good cause; or
(c) The expiration of three (3) months from the date
of the Optionee's Termination of Employment by reason of his
retirement or his being discharged not for good cause, unless the
Optionee dies within said three-month period; or
(d) The expiration of one (1) year from the date of
the Optionee's Termination of Employment by reason of his
disability; or
(e) The expiration of one (1) year from the date of
the Optionee's death; or
(f) The effective date of either the merger or
consolidation of the Company with or into another corporation, or
the acquisition by another corporation or person of all or
substantially all of the Company's assets or eighty percent (80%)
or more of the Company's then outstanding voting stock, or the
liquidation or dissolution of the Company, unless the Committee
waives this provision in connection with such transaction. At
least ten (10) days prior to the effective date of such merger,
consolidation, acquisition, liquidation or dissolution, the
Committee shall give the Optionee notice of such event if the
Option has then neither been fully exercised nor become
unexercisable under this Section 3.3.
Section 3.4. - Acceleration of Exercisability
In the event of the merger or consolidation of the
Company with or into another corporation, or the acquisition by
another corporation or person of all or substantially all of the
Company's assets or eighty percent (80%) or more of the Company's
then outstanding voting stock, or the liquidation or dissolution
of the Company, the Committee may, in its absolute discretion and
upon such terms and conditions as it deems appropriate, provide
by resolution, adopted prior to such event and incorporated in
the notice referred to in Section 3.3(f), that at some time prior
to the effective date of such event this Option shall be
exercisable as to all the shares covered hereby, notwithstanding
that this Option may not yet have become fully exercisable under
Section 3.1(a). [; provided, however, that this acceleration of
exercisability shall not take place if:
(a) This Option becomes unexercisable under Section
3.3 prior to said effective date; or
(b) In connection with such an event, provision is
made for an assumption of this Option or a substitution therefor
of a new option by an employer corporation or a parent or
subsidiary of such corporation; and
provided, further, that nothing in this Section 3.4 shall make
this Option exercisable if it is otherwise unexercisable by
reason of Section 5.6.]
[The Committee may make such determinations and adopt
such rules and conditions as it, in its absolute discretion,
deems appropriate in connection with such acceleration of
exercisability, including, but not by way of limitation,
provisions to ensure that any such acceleration and resulting
exercise shall be conditioned upon the consummation of the
contemplated corporate transaction.]]
ARTICLE IV
EXERCISE OF OPTION
Section 4.1. - Person Eligible to Exercise
During the lifetime of the Optionee, only he may
exercise the Option or any portion thereof. After the death of
the Optionee, any exercisable portion of the Option may, prior to
the time when the Option becomes unexercisable under Section 3.3,
be exercised by his personal representative or by any person
empowered to do so under the deceased Optionee's will or under
the then applicable laws of descent and distribution.
Section 4.2. - Partial Exercise
Any exercisable portion of the Option or the entire
Option, if then wholly exercisable, may be exercised in whole or
in part at any time prior to the time when the Option or portion
thereof becomes unexercisable under Section 3.3; provided,
however, that each partial exercise shall be for not less than
____________ (__) shares (or the minimum installment set forth in
Section 3.1, if a smaller number of shares) and shall be for
whole shares only.
Section 4.3. - Manner of Exercise
The Option, or any exercisable portion thereof, may be
exercised solely by delivery to the Secretary or his office of
all of the following prior to the time when the Option or such
portion becomes unexercisable under Section 3.3:
(a) A written notice complying with the applicable
rules established by the Committee stating that the Option, or a
portion thereof, is exercised. The notice shall be signed by the
Optionee or other person then entitled to exercise the Option or
such portion; and
(b) [(i)] Full cash payment to the Secretary of the
Company for the shares with respect to which such Option or
portion is exercised; [or] and
[(ii) With the consent of the Committee, (A)
shares of the Company's Common Stock owned by the Optionee,
duly endorsed for transfer to the Company, with a Fair
Market Value on the date of delivery equal to the aggregate
exercise price of the Option or exercised portion thereof,
or (B) shares of the Company's Common Stock issuable to the
Optionee upon exercise of the Option, with a Fair Market
Value on the date of delivery equal to the aggregate
exercise price of the Option or exercised portion thereof;
or]
[(iii) With the consent of the Committee, a full
recourse promissory note bearing interest (at no less than
such rate as shall then preclude the imputation of interest
under the Code or successor provision) and payable upon such
terms as may be prescribed by the Committee. The Committee
may also prescribe the form of such note and the security to
be given for such note. The Option may not be exercised,
however, by delivery of a promissory note or by a loan from
the Company when or where such loan or other extension of
credit is prohibited by law; or]
[(iv) With the consent of the Committee, property
of any kind which constitutes good and valuable
consideration; or]
[(v) With the consent of the Committee, a notice
that the Optionee has placed a market sell order with a
broker with respect to shares of the Company's Common Stock
then issuable upon exercise of the Option, and that the
broker has been directed to pay a sufficient portion of the
net proceeds of the sale to the Company in satisfaction of
the Option exercise price; or]
[(vi) With the consent of the Committee, any
combination of the consideration provided in the foregoing
subparagraphs (i), (ii), (iii), (iv) and (v); and]
(c) A bona fide written representation and agreement,
in a form satisfactory to the Committee, signed by the Optionee
or other person then entitled to exercise such Option or portion,
stating that the shares of stock are being acquired for his own
account, for investment and without any present intention of
distributing or reselling said shares or any of them except as
may be permitted under the Securities Act and then applicable
rules and regulations thereunder, and that the Optionee or other
person then entitled to exercise such Option or portion will
indemnify the Company against and hold it free and harmless from
any loss, damage, expense or liability resulting to the Company
if any sale or distribution of the shares by such person is
contrary to the representation and agreement referred to above.
The Committee may, in its absolute discretion, take whatever
additional actions it deems appropriate to insure the observance
and performance of such representation and agreement and to
effect compliance with the Securities Act and any other federal
or state securities laws or regulations. Without limiting the
generality of the foregoing, the Committee may require an opinion
of counsel acceptable to it to the effect that any subsequent
transfer of shares acquired on an Option exercise does not
violate the Securities Act, and may issue stop-transfer orders
covering such shares. Share certificates evidencing stock issued
on exercise of this Option shall bear an appropriate legend
referring to the provisions of this subsection (c) and the
agreements herein. The written representation and agreement
referred to in the first sentence of this subsection (c) shall,
however, not be required if the shares to be issued pursuant to
such exercise have been registered under the Securities Act, and
such registration is then effective in respect of such shares;
and
(d) Full payment to the Company (or other employer
corporation) of all amounts which, under federal, state or local
tax law, it is required to withhold upon exercise of the Option;
with the consent of the Committee, (i) shares of the Company's
Common Stock owned by the Optionee, duly endorsed for transfer,
with a Fair Market Value equal to the sums required to be
withheld, or (ii) shares of the Company's Common Stock issuable
to the Optionee upon exercise of the Option with a Fair Market
Value equal to the sums required to be withheld, may be used to
make all or part of such payment; and
(e) In the event the Option or portion shall be
exercised pursuant to Section 4.1 by any person or persons other
than the Optionee, appropriate proof of the right of such person
or persons to exercise the Option.
Section 4.4. - Conditions to Issuance of Stock Certificates
The shares of stock deliverable upon the exercise of
the Option, or any portion thereof, may be either previously
authorized but unissued shares or issued shares which have then
been reacquired by the Company. Such shares shall be fully paid
and nonassessable. The Company shall not be required to issue or
deliver any certificate or certificates for shares of stock
purchased upon the exercise of the Option or portion thereof
prior to fulfillment of all of the following conditions:
(a) The admission of such shares to listing or
quotation on all stock exchanges or securities markets on which
such class of stock is then listed or quoted; and
(b) The completion of any registration or other
qualification of such shares under any state or federal law or
under rulings or regulations of the Securities and Exchange
Commission or of any other governmental regulatory body, which
the Committee shall, in its absolute discretion, deem necessary
or advisable; and
(c) The obtaining of any approval or other clearance
from any state or federal governmental agency which the Committee
shall, in its absolute discretion, determine to be necessary or
advisable; and
(d) The receipt by the Company of full payment for
such shares, including payment of all amounts which, under
federal, state or local tax law, the Company (or other employer
corporation) is required to withhold upon exercise of the Option;
and
(e) The lapse of such reasonable period of time
following the exercise of the Option as the Committee may from
time to time establish for reasons of administrative convenience.
Section 4.5 - Rights as Shareholder
The holder of the Option shall not be, nor have any of
the rights or privileges of, a shareholder of the Company in
respect of any shares purchasable upon the exercise of any part
of the Option unless and until certificates representing such
shares shall have been issued by the Company to such holder.
ARTICLE V
OTHER PROVISIONS
Section 5.1. - Administration
The Committee shall have the power to interpret the
Plan and this Agreement and to adopt such rules for the
administration, interpretation and application of the Plan as are
consistent therewith and to interpret, amend or revoke any such
rules. All actions taken and all interpretations and
determinations made by the Committee in good faith shall be final
and binding upon the Optionee, the Company and all other
interested persons. No member of the Committee shall be
personally liable for any action, determination or interpretation
made in good faith with respect to the Plan or the Option. In
its absolute discretion, the Board may at any time and from time
to time exercise any and all rights and duties of the Committee
under the Plan and this Agreement.
Section 5.2. - Option Not Transferable
Neither the Option nor any interest or right therein or
part thereof shall be sold, pledged, assigned, or transferred in
any manner other than by will or the laws of descent and
distribution, unless and until such Option has been exercised, or
the shares underlying such Option have been issued, and all
restrictions applicable to such shares have lapsed. Neither the
Option nor any interest or right therein or part thereof shall be
liable for the debts, contracts or engagements of the Optionee or
his successors in interest or shall be subject to disposition by
transfer, alienation, anticipation, pledge, encumbrance,
assignment or any other means whether such disposition be
voluntary or involuntary or by operation of law by judgment,
levy, attachment, garnishment or any other legal or equitable
proceedings (including bankruptcy), and any attempted disposition
thereof shall be null and void and of no effect, except to the
extent that such disposition is permitted by the preceding
sentence.
Section 5.3. - Shares to Be Reserved
The Company shall at all times during the term of the
Option reserve and keep available such number of shares of stock
as will be sufficient to satisfy the requirements of this
Agreement.
Section 5.4. - Notices
Any notice to be given under the terms of this
Agreement to the Company shall be addressed to the Company in
care of its Secretary, and any notice to be given to the Optionee
shall be addressed to him at the address given beneath his
signature hereto. By a notice given pursuant to this Section
5.4, either party may hereafter designate a different address for
notices to be given to him. Any notice which is required to be
given to the Optionee shall, if the Optionee is then deceased, be
given to the Optionee's personal representative if such
representative has previously informed the Company of his status
and address by written notice under this Section 5.4. Any notice
shall be deemed duly given when enclosed in a properly sealed
envelope or wrapper addressed as aforesaid, deposited (with
postage prepaid) in a post office or branch post office regularly
maintained by the United States Postal Service.
Section 5.5. - Titles
Titles are provided herein for convenience only and are
not to serve as a basis for interpretation or construction of
this Agreement.
Section 5.6. - Construction
This Agreement shall be administered, interpreted and
enforced under the internal laws of the State of Oregon without
regard to conflicts of laws thereof.
Section 5.7. - Conformity to Securities Laws
The Optionee acknowledges that the Plan is intended to
conform to the extent necessary with all provisions of the
Securities Act and the Exchange Act and any and all regulations
and rules promulgated by the Securities and Exchange Commission
thereunder, including without limitation Rule 16b-3.
Notwithstanding anything herein to the contrary, the Plan shall
be administered, and the Option is granted and may be exercised,
only in such a manner as to conform to such laws, rules and
regulations. To the extent permitted by applicable law, the Plan
and this Agreement shall be deemed amended to the extent
necessary to conform to such laws, rules and regulations.
[Section . - Company's Right to Repurchase Shares
Upon Termination of Employment [which results from any
reason other than (a) a discharge by the Company not for good
cause or (b) the Optionee's death or retirement], the Company
shall have the option to repurchase all (but not less than all)
of the shares of stock which have been purchased by the Optionee
pursuant to exercise of the Option and which the Optionee then
holds. The repurchase price payable by the Company if it
exercises its repurchase option shall be $______ [or a formula
price].
The Company's repurchase option shall be exercisable by
giving written notice (accompanied by payment for the shares) to
the Optionee within thirty (30) calendar days after the
Termination of Employment [which gives rise to the Company's
repurchase option]. [In the event that the book value of such
shares as of the end of the immediately preceding fiscal year has
not yet been certified by the Company's accountants at the time
of said Termination of Employment, said thirty (30) calendar day
period for the Company's exercise of its repurchase option shall
commence upon said certification.]
[Section . - Restrictions on Transfer of Shares
(a) There can be no valid transfer (as hereinafter
defined) of any shares of stock purchased on exercise of the
Option, or any interest in such shares, by any holder of such
shares or interests unless such transfer is solely for cash
consideration and is made in compliance with the following
provisions:
(1) Before there can be a valid transfer of any
shares or any interest therein, the record holder of the
shares to be transferred (the "Offered Shares") shall give
written notice (by registered or certified mail) to the
Company. Such notice shall specify the identity of the
proposed transferee, the cash price offered for the Offered
Shares by the proposed transferee and the other terms and
conditions of the proposed transfer. The date such notice
is mailed shall be hereinafter referred to as the "notice
date" and the record holder of the Offered Shares shall be
hereinafter referred to as the "Offeror."
(2) For a period of thirty (30) calendar days
after the notice date, the Company shall have the option to
purchase all (but not less than all) of the Offered Shares
at the purchase price and on the terms set forth in
subsection (a)(3) of this Section __.__. This option shall
be exercisable by the Company by mailing (by registered or
certified mail) written notice of exercise to the Offeror
prior to the end of said thirty (30) days.
(3) The price at which the Company may purchase
the Offered Shares pursuant to the exercise of such option
shall be the cash price offered for the Offered Shares by
the proposed transferee (as set forth in the notice required
under subsection (a)(1) of this Section __.__). The
Company's notice of exercise of such option shall be
accompanied by full payment for the Offered Shares and, upon
such payment by the Company, the Company shall acquire full
right, title and interest to all of the Offered Shares.
(4) If, and only if, the option given pursuant to
subsection (a)(2) of this Section __.__ is not exercised,
the transfer proposed in the notice given pursuant to
subsection (a)(1) of this Section __.__ may take place;
provided, however, that such transfer must, in all respects,
be exactly as proposed in said notice except that such
transfer may not take place either before the tenth (10th)
calendar day after the expiration of said thirty-day option
exercise period or after the ninetieth (90th) calendar day
after the expiration of said thirty-day option exercise
period, and if such transfer has not taken place prior to
said ninetieth (90th) day, such transfer may not take place
without once again complying with subsection (a) of this
Section __.__.
(b) As used in this Section __.__, the term "transfer"
means any sale, encumbrance, pledge, gift or other form of
disposition or transfer of shares of the Company's stock or any
legal or equitable interest therein; provided, however, that the
term "transfer" does not include a transfer of such shares or
interests by will or by the applicable laws of descent and
distribution or a gift of such shares if the donee agrees to be
bound by the provisions of this Section __.__.
(c) None of the shares of the Company's stock
purchased on exercise of the Option shall be transferred on the
Company's books nor shall the Company recognize any such transfer
of any such shares or any interest therein unless and until all
applicable provisions of this Section __.__ have been complied
with in all respects. The certificates of stock evidencing
shares of stock purchased on exercise of the Option shall bear an
appropriate legend referring to the transfer restrictions imposed
by this Section __.__ and to the repurchase option provided for
in Section __.__.]
IN WITNESS WHEREOF, this Agreement has been executed
and delivered by the parties hereto.
RENTRAK CORPORATION
By ___________________________
President
By ___________________________
Secretary
____________________________
Optionee
____________________________
____________________________
Address
Optionee's Taxpayer
Identification Number:
____________________________
Exhibit 5.1
[Garvey Schubert & Barer Letterhead]
June 4, 1997
Rentrak Corporation
One Airport Center
7700 N.E. Ambassador Place
Portland, OR 97070
Ladies and Gentlemen:
Reference is made to the registration statement on Form S-8
(the "Registration Statement") that you intend to file with the
Securities and Exchange Commission in connection with the
registration, under the Securities Act of 1933, as amended, of
200,000 shares of common stock (the "Shares") of Rentrak
Corporation (the "Company") issuable under the 1997 Non-Officer
Stock Option Plan of Rentrak Corporation (the "Plan").
We have reviewed those documents, corporate records, and
other instruments we deemed necessary for the purposes of this
opinion. As to matters of fact which have not been independently
established, we have relied upon representations of officers of
the Company.
Subject to the foregoing, it is our opinion that, under the
corporate laws of the State of Oregon, upon the exercise of
options granted under the Plan and the issuance and sale of the
Shares, each in the manner contemplated by the Plan, and subject
to the Company completing all action and proceedings required on
its part to be taken prior to the issuance of the Shares in
accordance with the terms of the Plan, including, without
limitation, collection of the required payment for the Shares,
the Shares will be validly issued, fully paid and nonassessable
securities of the Company.
This opinion is dated as of the date hereof.
We hereby consent to the filing of this opinion as an
exhibit to the Registration Statement and to the reference to
this opinion under Item 5 in the Registration Statement.
Sincerely,
GARVEY, SCHUBERT & BARER
Exhibit 23.2
[ARTHUR ANDERSEN LLP LETTERHEAD]
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this registration statement of
our reports dated June 3, 1996, included in Rentrak
Corporation's Form 10-K for the year ended March 31, 1996.
ARTHUR ANDERSEN LLP
Portland, Oregon
June 2, 1997
