RENTRAK CORPORATION
AMENDED AND RESTATED
2005 STOCK INCENTIVE PLAN
Effective August 20, 2009
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TABLE OF CONTENTS
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Page
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1.
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ESTABLISHMENT
AND PURPOSE
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1
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1.1
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Establishment
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1
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1.2
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Purpose
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1
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1.3
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Prior
Plans
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1
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1.4
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Reservation of
Right to Amend to Comply with Section 409A
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1
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2.
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DEFINITIONS
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1
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2.1
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Defined
Terms
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1
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2.2
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Gender and
Number
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6
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3.
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ADMINISTRATION
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6
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3.1
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General
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6
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3.2
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Composition of
the Committee
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6
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3.3
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Authority of
the Committee
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6
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3.4
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Action by the
Committee
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7
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3.5
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Delegation
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7
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3.6
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Liability of
Committee Members
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7
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3.7
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Costs of
Plan
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7
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4.
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DURATION OF THE
PLAN AND SHARES SUBJECT TO THE PLAN
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7
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4.1
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Duration of the
Plan
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7
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4.2
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Shares Subject
to the Plan
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7
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5.
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ELIGIBILITY
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8
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6.
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AWARDS
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8
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6.1
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Types of
Awards
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8
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6.2
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General
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8
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6.3
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Nonuniform
Determinations
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8
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6.4
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Award
Agreements
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8
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6.5
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Provisions
Governing All Awards
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9
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7.
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OPTIONS
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13
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7.1
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Types of
Options
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13
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7.2
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General
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13
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7.3
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Option
Price
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13
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7.4
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Option
Term
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13
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TABLE OF CONTENTS
(continued)
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Page
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7.5
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Time of
Exercise
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13
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7.6
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Special Rules
for Incentive Stock Options
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14
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7.7
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Restricted
Shares
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14
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7.8
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Limitation on
Number of Shares Subject to Options
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14
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8.
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STOCK
APPRECIATION RIGHTS
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14
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8.1
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General
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14
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8.2
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Nature of Stock
Appreciation Right
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14
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8.3
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Exercise
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15
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8.4
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Form of
Payment
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15
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8.5
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Limitation on
Number of Stock Appreciation Rights
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15
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9.
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RESTRICTED
AWARDS
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15
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9.1
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Types of
Restricted Awards
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15
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9.2
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General
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16
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9.3
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Restriction
Period
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16
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9.4
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Forfeiture
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16
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9.5
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Settlement of
Restricted Awards
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16
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9.6
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Rights as a
Shareholder
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17
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9.7
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Limitation in
Number of Restricted Awards
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17
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10.
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PERFORMANCE
AWARDS
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17
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10.1
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General
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17
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10.2
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Nature of
Performance Awards
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17
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10.3
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Performance
Cycles
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17
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10.4
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Performance
Goals
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10.5
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Performance
Goals for Executive Officers
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18
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10.6
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Determination
of Awards
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18
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10.7
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Timing and Form
of Payment
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18
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10.8
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Limitation on
Number of Performance Awards
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18
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11.
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OTHER
STOCK-BASED AND COMBINATION AWARDS
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11.1
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Other
Stock-Based Awards
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18
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11.2
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Combination
Awards
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19
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12.
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DIVIDEND
EQUIVALENTS
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TABLE OF CONTENTS
(continued)
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Page
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13.
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ADJUSTMENTS
UPON CHANGES IN CAPITALIZATION, ETC.
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13.1
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Plan Does Not
Restrict Corporation
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13.2
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Adjustments to
Shares Subject to the Plan and Outstanding Awards
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14.
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AMENDMENT AND
TERMINATION
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15.
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MISCELLANEOUS
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15.1
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Tax
Withholding
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20
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15.2
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Unfunded
Plan
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20
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15.3
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Annulment of
Awards
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20
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15.4
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Engaging in
Competition With Corporation
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21
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15.5
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Other
Corporation Benefit and Compensation Programs
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21
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15.6
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Securities Law
Restrictions
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21
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15.7
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Governing
Law
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21
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16.
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SHAREHOLDER
APPROVAL
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RENTRAK CORPORATION
AMENDED AND RESTATED
2005 STOCK INCENTIVE PLAN
1. ESTABLISHMENT
AND PURPOSE
1.1 Establishment. Rentrak
Corporation, an Oregon corporation ("Corporation"), established the
Rentrak Corporation 2005 Stock Incentive Plan effective as of
August 25, 2005 (the "Effective Date"). The original
Plan was approved at Corporation's 2005 annual shareholders'
meeting. The Plan is hereby amended and restated in the
form of this Rentrak Corporation Amended and Restated 2005 Stock
Incentive Plan (the "Plan"), effective as of the time of and
subject to shareholder approval as provided in
Section 16.
1.2
Purpose . The purpose of the Plan is to promote
and advance the interests of Corporation and its shareholders by
enabling Corporation to attract, retain, and reward key employees,
directors, and outside consultants of Corporation and its
subsidiaries. It is also intended to strengthen the
mutuality of interests between such employees, directors, and
consultants and Corporation's shareholders. The Plan is
designed to serve these purposes by offering stock options and
other equity-based incentive awards in order to provide
participants a proprietary interest in pursuing the long-term
growth, profitability, and financial success of
Corporation.
1.3
Prior Plans . The Plan is separate from the
Rentrak Corporation 1997 Equity Participation Plan and the Rentrak
Corporation 1997 Non-Officer Employee Stock Option Plan (the "Prior
Plans"). The adoption of the Plan neither affects nor is
affected by the continued existence of the Prior Plans except
that:
(a) No
further Awards will be granted under the Prior Plans;
and
(b) The
number of Shares which may be made subject to Awards under the Plan
will be adjusted from time to time pursuant to Section 4.2 to
reflect cancellation, termination, or expiration of stock options
previously granted under the Prior Plans.
1.4
Reservation of Right to Amend to Comply with Section 409A
. The Board and the Committee reserve the right to amend
the Plan, either retroactively or prospectively, in whatever
respect is required to achieve and maintain compliance with the
requirements of Code Section 409A and the regulations and other
guidance issued by the Department of the Treasury thereunder
(collectively, "Section 409A").
2. DEFINITIONS
2.1
Defined Terms . For purposes of the Plan, the
following terms have the meanings set forth below:
" Award " means an award or grant
made to a Participant of Options, Stock Appreciation Rights,
Restricted Awards, Performance Awards, or Other Stock-Based Awards
pursuant to the Plan.
" Award Agreement " means an
agreement as described in Section 6.4 of the Plan.
" Board " means the Board of
Directors of Corporation.
" Change in Control " has the
meaning given by the Committee in each Award Agreement, or, if the
term is not otherwise defined in an Award Agreement, the first
occurrence of any of the following:
(a) Any
person (including any individual, corporation, limited liability
company, partnership, trust, group, association, or other "person,"
as such term is used in Section 13(d)(3) or 14(d) of the
Exchange Act) other than a trustee or other fiduciary holding
securities under an employee benefit plan of Corporation, is or
becomes a beneficial owner (within the meaning of Rule 13d-3
promulgated under the Exchange Act), directly or indirectly, of
securities of Corporation representing 25 percent or more of the
combined voting power of Corporation's then outstanding
securities;
(b) A
majority of the directors elected at any annual or special meeting
of shareholders are not individuals nominated by Corporation's then
incumbent Board; or
(c) The
shareholders of Corporation approve (i) a merger or consolidation
of Corporation with any other corporation, other than a merger or
consolidation which would result in the Voting Securities (defined
as all issued and outstanding securities ordinarily having the
right to vote at elections of Corporation's directors) of
Corporation outstanding immediately prior to such transaction
continuing to represent (either by remaining outstanding or by
being converted into voting securities of the surviving entity) at
least 75 percent of the combined voting power of the Voting
Securities of Corporation or of such surviving entity outstanding
immediately after such merger or consolidation, (ii) a plan of
complete liquidation of Corporation, or (iii) an agreement for the
sale or disposition by Corporation of all or substantially all of
its assets.
" Code " means the Internal
Revenue Code of 1986, as amended and in effect from time to time,
or any successor statute, together with rules, regulations, and
interpretations promulgated under the Code. Where the
context so requires, any reference to a particular Code section
will be construed to refer to the successor provision to such Code
section.
" Committee " means the committee
appointed by the Board to administer the Plan as provided in
Section 3 of the Plan.
" Common Stock " means the $.001
par value Common Stock of Corporation.
" Consultant " means any
consultant or adviser to Corporation or a Subsidiary selected by
the Committee who is not an employee of Corporation or a Subsidiary
and who provides services to Corporation or a Subsidiary other than
services of a capital-raising nature.
" Continuing Restriction " means a
Restriction contained in Sections 6.5(g), 6.5(i), 15.3, 15.4,
and 15.6 of the Plan and any other Restriction expressly designated
by the Committee in an Award Agreement as a Continuing
Restriction.
" Corporation " means Rentrak
Corporation, an Oregon corporation, or any successor
corporation.
" Disability " means the condition
of being permanently "disabled" within the meaning of Section
22(e)(3) of the Code, namely being unable to engage in any
substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to
result in death or which has lasted or can be expected to last for
a continuous period of not less than 12 months. However,
the Committee may change the foregoing definition of "Disability"
or may adopt a different definition for purposes of specific
Awards.
" Exchange Act " means the
Securities Exchange Act of 1934, as amended and in effect from time
to time, or any successor statute. Where the context so
requires, any reference to a particular section of the Exchange
Act, or to any rule promulgated under the Exchange Act, will be
construed to refer to successor provisions to such section or
rule.
" Fair Market Value " means, on
any given day, the fair market value per share of the Common Stock
determined as follows:
(a) If
the Common Stock is traded on an established securities exchange,
the closing sale price of Common Stock as reported for such day by
the principal exchange on which Common Stock is traded (as
determined by the Committee) or, if Common Stock was not traded on
such day, on the next preceding day on which Common Stock was
traded;
(b) If
trading activity in Common Stock is reported on The Nasdaq Stock
Market, the closing sale price of Common Stock as reported for such
day by Nasdaq or, if Common Stock trades were not reported on such
day, on the next preceding day on which Common Stock trades were
reported by Nasdaq;
(c) If
trading activity in Common Stock is reported on the OTC Bulletin
Board, the average of the closing representative bid and asked
prices for such day as reported on the OTC Bulletin Board or, if
there are no such quotes for Common Stock for such day, on the next
preceding day for which bid and asked price quotes for Common Stock
were reported on the OTC Bulletin Board; or
(d) If
there is no market for Common Stock or if trading activities for
Common Stock are not reported in one of the manners described
above, the fair market value will be as determined by the
Committee.
" Incentive Stock Option " or "
ISO " means any Option granted pursuant to
the Plan that is intended to be and is specifically designated in
its Award Agreement as an "incentive stock option" within the
meaning of Section 422 of the Code.
" Non-Employee Board Director "
means a member of the Board who is not an employee of Corporation
or any Subsidiary.
" Non-Employee Subsidiary Director
" means a member of the board of directors of a Subsidiary who is
neither an employee of Corporation or a Subsidiary nor a member of
the Board.
" Nonqualified Option " or "
NQO " means any Option granted pursuant to the Plan
that is not an Incentive Stock Option.
" Option " means an ISO or an
NQO.
" Option Committee " means a
committee of one or more members of the Board (who need not be
members of the Committee) to whom the Committee may delegate
authority to grant Awards to Participants who are not Reporting
Persons.
" Other Stock-Based Award " means
an Award as defined in Section 11.1 of the Plan.
" Participant " means an employee
of Corporation or a Subsidiary, a Consultant, a Non-Employee Board
Director, or a Non-Employee Subsidiary Director who is granted an
Award under the Plan.
" Performance Award " means an
Award granted pursuant to the provisions of Section 10 of the
Plan, the Vesting of which is contingent on attainment of
Performance Goals.
" Performance Cycle " means a
designated performance period pursuant to the provisions of
Section 10.3 of the Plan.
" Performance Goal " means a
designated performance objective pursuant to the provisions of
Section 10.4 of the Plan.
" Plan " means this Rentrak
Corporation 2005 Amended and Restated Stock Incentive Plan, as set
forth in this document and as it may be amended from time to
time.
" Reporting Person " means a
Participant who is subject to the reporting requirements of
Section 16(a) of the Exchange Act.
" Restricted Award " means a
Restricted Share or a Restricted Stock Unit granted pursuant to
Section 9 of the Plan.
" Restricted Share " means an
Award described in Section 9.1(a) of the Plan.
" Restricted Stock Unit " means an
Award of units representing Shares described in Section 9.1(b)
of the Plan.
" Restriction " means a provision
in the Plan or in an Award Agreement which limits the
exercisability or transferability, or which governs the forfeiture,
of an Award or the Shares, cash, or other property payable pursuant
to an Award.
" Restriction Period " means a
designated period pursuant to the provisions of Section 9.3 of the
Plan.
" Retirement " has the meaning
given by the Committee in each Award Agreement, or, if the term is
not otherwise defined in an Award Agreement, has the following
meaning:
(a) For
Participants who are employees, retirement from active employment
with Corporation and its Subsidiaries on or after age 65, or
such earlier retirement date as approved by the Committee for
purposes of the Plan;
(b) For
Participants who are Non-Employee Board Directors or Non-Employee
Subsidiary Directors, retirement from the applicable board of
directors after attaining the age and service period specified in
the Corporate Governance Guidelines adopted by the Board;
or
(c) For
Participants who are Consultants, termination of service as a
Consultant after attaining a retirement age specified by the
Committee for purposes of an Award to such Consultant.
" Settlement Period " means, with
respect to any Restricted Stock Unit Award or Performance Award,
the period following the expiration of the Restriction Period or
the Performance Cycle, respectively, for such Award specified by
the Committee in the Award Agreement for such Award so that the
Restricted Stock Unit Award or Performance Award will either (a)
not be treated as a deferred compensation arrangement for income
tax purposes under Section 409A, or (b) if treated as a deferred
compensation arrangement for such purposes, will meet all
requirements under Section 409A.
" Share " means a share of Common
Stock.
" Stock Appreciation Right " or "
SAR " means an Award to benefit from the appreciation
of Common Stock granted pursuant to the provisions of
Section 8 of the Plan.
" Subsidiary " means (i) a
"subsidiary corporation" of Corporation, within the meaning of
Section 424(f) of the Code, namely any corporation in which
Corporation directly or indirectly controls 50 percent or more
of the total combined voting power of all classes of stock having
voting power, and (ii) any partnership, limited liability company,
or other business entity of which Corporation owns or controls 50
percent or more of the voting interests and which has been
designated by the Committee as a subsidiary; provided, however,
that with respect to ISOs, only employees of subsidiary
corporations as described in clause (i) may receive such
Awards.
" Vest ," " Vesting
," or " Vested " means:
(a) In
the case of an Award that requires exercise, to be or to become
immediately and fully exercisable and free of all Restrictions
(other than Continuing Restrictions);
(b) In
the case of an Award that is subject to forfeiture, to be or to
become nonforfeitable, freely transferable, and free of all
Restrictions (other than Continuing Restrictions);
(c) In
the case of an Award that is required to be earned by attaining
specified Performance Goals, to be or to become earned and
nonforfeitable, freely transferable, and free of all Restrictions
(other than Continuing Restrictions); or
(d) In
the case of any other Award as to which payment is not dependent
solely upon the exercise of a right, election, or option, to be or
to become immediately payable and free of all Restrictions (except
Continuing Restrictions).
2.2
Gender and Number . Except where otherwise
indicated by the context, any masculine or feminine terminology
used in the Plan also includes the opposite gender; and the
definition of any term in Section 2.1 in the singular also
includes the plural, and vice versa.
3. ADMINISTRATION
3.1
General . The Plan will be administered by a
Committee composed as described in Section 3.2.
3.2
Composition of the Committee . The Committee will
be appointed by the Board and will consist of not less than a
sufficient number of Non-Employee Board Directors so as to qualify
the Committee to administer the Plan as contemplated by
Section 162(m)(4)(C) of the Code, Rule 16b-3 under the
Exchange Act and Rule 5605(d) of the Nasdaq Marketplace
Rules. The Board may from time to time remove members
from, or add members to, the Committee. Vacancies on the
Committee, however caused, will be filled by the
Board. In the event that the Committee ceases to
satisfy the requirements of Section 162(m)(4)(C), Rule 16b-3,
or Rule 5605(d), the Board will reconstitute the Committee as
necessary to satisfy such requirements.
3.3
Authority of the Committee . The Committee has
full power and authority (subject to such orders or resolutions as
may be issued or adopted from time to time by the Board) to
administer the Plan in its sole discretion, including the authority
to:
(a) Construe
and interpret the Plan and any Award Agreement;
(b) Promulgate,
amend, and rescind rules and procedures relating to the
implementation of the Plan;
(c) Select
the employees, Non-Employee Board Directors, Non-Employee
Subsidiary Directors, and Consultants who will be granted
Awards;
(d) Determine
the number and types of Awards to be granted to each such
Participant;
(e) Determine
the number of Shares, or Share equivalents, to be subject to each
Award;
(f)
Determine the option price, purchase price, base price,
or similar feature for any Award; and
(g) Determine
all the terms and conditions of all Award Agreements, consistent
with the requirements of the Plan.
Decisions of the Committee, or any delegate as
permitted by the Plan, will be final, conclusive, and binding on
all Participants.
3.4
Action by the Committee . A majority of the
members of the Committee will constitute a quorum for the
transaction of business. Action approved by a majority
of the members present at any meeting at which a quorum is present,
or action in writing by all of the members of the Committee, will
be the valid acts of the Committee.
3.5
Delegation . Notwithstanding any other provision
of this Section 3, the Committee may delegate to the Option
Committee the authority, subject to such conditions or limitations
as the Committee may designate, to determine the recipients, types,
amounts, and terms of Awards granted to Participants who are not
Reporting Persons.
3.6
Liability of Committee Members . No member of the
Committee or the Option Committee will be liable for any action or
determination made in good faith with respect to the Plan, any
Award, or any Participant.
3.7
Costs of Plan . The costs and expenses of
administering the Plan will be borne by Corporation.
4. DURATION
OF THE PLAN AND SHARES SUBJECT TO THE PLAN
4.1
Duration of the Plan . The Plan became effective
on August 25, 2005, and subject to approval by Corporation's
shareholders as provided in Section 16 is amended and restated
as of the date of such approval. The Plan will remain in
effect until Awards have been granted covering all the available
Shares or the Plan is otherwise terminated by the
Board. Termination of the Plan will not affect
outstanding Awards.
4.2
Shares Subject to the Plan . The shares which may
be made subject to Awards under the Plan are Shares of Common
Stock, which may be either authorized and unissued Shares or
reacquired Shares. No fractional Shares may be issued
under the Plan. Subject to adjustment pursuant to
Section 13, the maximum number of Shares for which Awards may
be granted under the Plan is 2,000,000. If an Award
under the Plan (or any option previously granted under the Prior
Plans) is canceled or expires for any reason prior to having been
fully Vested or exercised by a Participant or is settled in cash in
lieu of Shares or is exchanged for other Awards, all Shares covered
by such Awards will be added back into the number of Shares
available for future Awards under the Plan.
5. ELIGIBILITY
Officers and other key employees of Corporation
and its Subsidiaries (including employees who may also be directors
of Corporation or a Subsidiary), Consultants, Non-Employee Board
Directors, and Non-Employee Subsidiary Directors who, in the
Committee's judgment, are or will be contributors to the long-term
success of Corporation are eligible to receive Awards under the
Plan.
6. AWARDS
6.1
Types of Awards . The types of Awards that may be
granted under the Plan are:
(a) Options
governed by Section 7 of the Plan;
(b) Stock
Appreciation Rights governed by Section 8 of the
Plan;
(c) Restricted
Awards governed by Section 9 of the Plan;
(d) Performance
Awards governed by Section 10 of the Plan; and
(e) Other
Stock-Based Awards or combination awards governed by
Section 11 of the Plan.
In the
discretion of the Committee, any Award may be granted alone, in
addition to, or in tandem with other Awards under the
Plan.
6.2
General . Subject to the limitations of the Plan,
the Committee may cause Corporation to grant Awards to such
Participants, at such times, of such types, in such amounts, for
such periods, with such option prices, purchase prices, or base
prices, and subject to such terms, conditions, limitations, and
restrictions as the Committee, in its discretion, deems
appropriate. Awards may be granted as additional
compensation to a Participant or in lieu of other compensation to
such Participant. A Participant may receive more than
one Award and more than one type of Award under the
Plan.
6.3
Nonuniform Determinations . The Committee's
determinations under the Plan or under one or more Award
Agreements, including, without limitation, (a) the selection
of Participants to receive Awards, (b) the type, form, amount,
and timing of Awards, (c) the terms of specific Award
Agreements, and (d) elections and determinations made by the
Committee with respect to exercise or payments of Awards, need not
be uniform and may be made by the Committee selectively among
Participants and Awards, whether or not Participants are similarly
situated.
6.4
Award Agreements . Each Award will be evidenced
by a written Award Agreement between Corporation and the
Participant. Award Agreements may, subject to the
provisions of the Plan, contain any provision approved by the
Committee.
6.5
Provisions Governing All Awards . All Awards are
subject to the following provisions:
(a)
Alternative Awards . If any Awards are designated
in their Award Agreements as alternative to each other, the
exercise of all or part of one Award will automatically cause an
immediate equal (or pro rata) corresponding termination of the
other alternative Award or Awards.
(b)
Rights as Shareholders . No Participant will have
any rights of a shareholder with respect to Shares subject to an
Award until such Shares are issued in the name of the
Participant.
(c)
Employment Rights . Neither the adoption of the
Plan nor the granting of any Award confers on any person the right
to continued employment with Corporation or any Subsidiary or the
right to remain as a director of or a Consultant to Corporation or
any Subsidiary, as the case may be, nor does it interfere in any
way with the right of Corporation or a Subsidiary to terminate such
person's employment or to remove such person as a Consultant or as
a director at any time for any reason, or for no reason, with or
without cause.
(d)
Restriction on Transfer . Unless otherwise
expressly provided in an individual Award Agreement, no Award
(other than Restricted Shares after they Vest) will be transferable
other than by will or the laws of descent and distribution and each
Award will be exercisable (if exercise is required), during the
lifetime of the Participant, only by the Participant or, in the
event the Participant becomes legally incompetent, by the
Participant's guardian or legal
representative. Notwithstanding the foregoing, the
Committee, in its discretion, may provide in any Award Agreement
that the Award:
· May
be freely transferred;
· May
be freely transferred to a class of transferees specified in the
Award Agreement; or
· May
be transferred, but only subject to any terms and conditions
specified in the Award Agreement (including, without limitation, a
condition that an Award may only be transferred without payment of
consideration).
Furthermore,
notwithstanding the foregoing, any Award may be surrendered to
Corporation pursuant to Section 6.5(h) in connection with the
payment of the purchase or option price of another Award or the
payment of the Participant's federal, state, or local tax
withholding obligation with respect to the exercise or payment of
another Award.
(e)
Termination of Employment . The terms and
conditions under which an Award may be exercised, if at all, after
a Participant's termination of employment or service as a
Non-Employee Board Director, Non-Employee Subsidiary Director, or
Consultant will be determined by the Committee and specified in the
applicable Award Agreement.
(f)
Change in Control . The Committee, in its
discretion, may provide in any
