RENTRAK CORPORATION
NON-QUALIFIED STOCK OPTION AGREEMENT
THIS AGREEMENT, effective as of March 30, 2001, is made by and
between Rentrak Corporation, an Oregon corporation (hereinafter referred to as
"Company"), and Xxxx X. Xxxxxxxxx, an employee of the Company (hereinafter
referred to as "Employee"):
WHEREAS, the Company wishes to afford the Employee the opportunity
to purchase shares of its $.001 par value Common Stock; and
WHEREAS, the Company has adopted the 1997 Equity Participation Plan
of Rentrak Corporation (hereinafter referred to as "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
determined that it would be to the advantage and best interest of the Company
and its shareholders to grant the Non-Qualified Stock Option (the "Option")
provided for herein to the Employee as an inducement to remain in the service of
the Company 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 agree as follows:
ARTICLE X.
XXXXX OF OPTION
Section 1.1. - Grant of Option
In consideration of the Employee's agreement to remain in the employ
of the Company or its Subsidiaries and for other good and valuable
consideration, effective as of the date hereof, the Company irrevocably grants
to the Employee an Option to purchase any part or all of an aggregate of 71,429
shares of its $.001 par value Common Stock upon the terms and conditions set
forth in this Agreement.
Section 1.2. - Purchase Price
The purchase price of the shares of Common Stock covered by the
Option shall be $3.50 per share, without commission or other charge, subject to
adjustment as provided in Section 9.3(a) of the Plan.
Section 1.3. - Consideration to Company
In consideration of the granting of this Option by the Company, the
Employee 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. Nothing in this Agreement or in the Plan shall confer upon
the Employee 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 Employee at any time for any reason
whatsoever, with or without cause.
Section 1.4. - Adjustments in Option
The Committee shall make adjustments with respect to the Option in
accordance with the provisions of Section 9.3 of the Plan.
-1-
ARTICLE II.
PERIOD OF EXERCISABILITY
Section 2.1. - Commencement of Exercisability
(a) Subject to Sections 2.1(b) and 2.3, the Option shall become
exercisable in four cumulative installments as follows:
(i) The first installment shall consist of 25 percent 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 25 percent 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 25 percent 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 25 percent of the
shares covered by the Option and shall become exercisable on the fourth
anniversary of the date the Option is granted.
(b) No portion of the Option which is unexercisable at Termination
of Employment shall thereafter become exercisable.
Section 2.2. - Duration of Exercisability
Once the Option becomes exercisable pursuant to Section 2.1, it
shall remain exercisable until it becomes unexercisable under Section 2.3.
Section 2.3. - 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 expiration of one (1) month from the date of the Employee's
voluntary Termination of Employment; or
(c) The expiration of three (3) months from the date of the
Employee's Termination of Employment by reason of his retirement or his being
discharged not for good cause (for purposes of this Agreement, "good cause"
means any act of fraud by the Employee, any act of dishonesty by the Employee
involving the Company or its business, the Employee's conviction of or a plea of
nolo contendere to a felony, or the commission of any act in direct or indirect
competition with or materially detrimental to the best interests of the Company
that is in breach of the Employee's fiduciary duties to the Company), unless the
Employee dies within said three-month period; or
(d) The expiration of one (1) year from the date of the Employee's
Termination of Employment by reason of his permanent and total disability; or
(e) The expiration of one (1) year from the date of the Employee's
death; or
(f) Immediately following the Employee's Termination of Employment
by reason of being discharged for good cause; or
(g) 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. As soon as practicable prior to
the effective date of such merger, consolidation, acquisition, liquidation or
dissolution, the Committee shall give the Employee notice of such event if the
Option has then neither been fully exercised nor become unexercisable under this
Section 2.3.
Section 2.4. - Adjustments to and/or Cancellation of the Option
Neither (i) the issuance of additional shares of stock of the
Company in exchange for adequate consideration (including services), nor (ii)
the conversion of outstanding preferred shares of the Company into Common Stock,
shall be deemed to require an adjustment in the shares covered by the Option or
in the Purchase price of shares subject to the Option pursuant to Section 9.3(a)
of the Plan. In the event the Committee shall determine that an event has
occurred affecting the Company such that an adjustment to the Option under
-2-
Section 9.3(a) of the Plan should be made but that it is not practical or
feasible to make such an adjustment, such event shall be deemed a Termination
Event subject to the following paragraph.
Subject to Section 9.3(b)(vii) of the Plan, in the event of (a) the
dissolution or liquidation of the Company, (b) a reorganization, merger, or
consolidation of the Company with one or more corporations as a result of which
the Company will not be a surviving corporation, (c) the sale of all or
substantially all of the assets of the Company, (d) a sale or other transfer of
more than eighty percent (80%) of the then outstanding shares of Common Stock of
the Company, or (e) the occurrence of an event in accordance with the last
sentence of the previous paragraph (any of such events is herein referred to as
a "Terminating Event"), the Committee shall determine whether a provision will
be made in connection with the Terminating Event for an appropriate assumption
of the Option by or substitution of appropriate new options covering stock of, a
successor corporation employing the Employee or stock of an affiliate of such
successor employer corporation . If the Committee determines that such an
appropriate assumption or substitution will be made, the Committee shall give
notice of the determination to the Employee and the terms of such assumption or
substitution, and any adjustments made (i) to the number and kind of shares
subject to the Option outstanding under the Plan (or to options issued in
substitution therefor), (ii) to the Option purchase price and (iii) to the terms
and conditions of the Option, shall be binding upon the Employee. If the
Committee determines that no assumption or substitution will be made, the
Committee shall give notice of this determination to the Employee, whereupon the
Employee shall have the right for a period of thirty (30) days following the
notice to exercise in full or in part the unexercised and unexpired portion of
this Option without regard to the limitation on exercisability specified in
Section 2.1(a) above. Upon the expiration of this thirty (30) day period, the
option shall expire to the extent not earlier exercised.
ARTICLE III.
GRANT OF OPTION
Section 3.1. - 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
2.3; provided, however, that each partial exercise shall be for not less than
100 shares and shall be for whole shares only.
Section 3.2. - Manner of Exercise
The Option, or any exercisable portion thereof, may be exercised
solely by delivery to the Company's Secretary or his office of all of the
following prior to the time when the Option or such portion becomes
unexercisable under Section 2.3:
(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 Employee or other person then entitled to
exercise the Option or such portion.
(b) Full payment to the Company for the shares with respect to which
such Option or portion is exercised, which shall be:
(i) In cash; or
(ii) With the consent of the Committee, (A) shares of the
Company's Common Stock owned by the Employee (and, if acquired from the
Company, held for at least six months), duly endorsed for transfer to the
Company, with a Fair Market Value on the date of delivery equal to the
aggregate purchase price of the shares as to which the Option is
exercised, or (B) shares of the Company's Common Stock issuable to the
Employee upon exercise of the Option, with a Fair Market Value on the date
of delivery equal to the aggregate purchase price of the shares as to
which the Option is exercised; or
-3-
(iii) With the consent of the Committee, by delivery of a
notice that the Employee 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 purchase price of the shares as to which the Option is
exercised.
(c) A bona fide written representation and agreement, in a form
satisfactory to the Committee, signed by the Employee or other person then
entitled to exercise such Option or portion, as the Committee in its discretion
shall determine is necessary or appropriate to effect compliance with the
Securities Act of 1933 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 exercise of the Option does not violate the
Securities Act of 1933, 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 of 1933, and such registration is then effective in respect of
such shares.
(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 Employee, 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 Employee 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.
(e) In the event the Option or portion shall be exercised pursuant
to Section 4.1 by any person or persons other than the Employee, appropriate
proof of the right of such person or persons to exercise the Option.
Section 3.3. - Rights as Shareholder
The holder of the Option shall not be, and shall not 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 IV.
OTHER PROVISIONS
Section 4.1. - 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 Employee 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 4.2. - 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 Common Stock as will be sufficient
to satisfy the requirements of this Agreement.
-4-
Section 4.3. - 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 Employee shall be addressed to him at the address
given beneath his signature hereto. By a notice given pursuant to this Section
4.3, either party may hereafter designate a different address for notices to be
given. Any notice which is required to be given to the Employee shall, if the
Employee is then deceased, be given to the Employee's personal representative if
such representative has previously informed the Company of his status and
address by written notice under this Section 4.3. 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 4.4. - Titles
Titles are provided herein for convenience only and are not to serve
as a basis for interpretation or construction of this Agreement.
Section 4.5.- 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 4.6. - Conformity to Securities Laws
The Employee acknowledges that the Plan is intended to conform to
the extent necessary with all provisions of the Securities Act of 1933 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 4.7 - Definition of Terms
All capitalized terms used herein without definition have the
meanings ascribed to such terms in the Plan.
IN WITNESS WHEREOF, this Agreement has been executed and delivered
by the parties hereto.
RENTRAK CORPORATION
By /s/ F. Xxx Xxx
-----------------
President
/s/ Xxxx X. Xxxxxxxxx
----------------------
(Xxxx X. Xxxxxxxxx)
Address:
==========================
--------------------------
Employee's Taxpayer Identification Number: ___________________
-5-
