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 of incorporation) (I.R.S. Employer Identification No.)
One Airport Center
7700 N.E. Ambassador Place
Portland, Oregon 97220
(Address of principal executive offices) (Zip code)
THE 1997 NON-OFFICER EMPLOYEE STOCK OPTION PLAN OF RENTRAK CORPORATION
(Full title of the plan)
Paul A. Rosenbaum
Chairman and Chief Executive Officer
Rentrak Corporation
One Airport Center
7700 N.E. Ambassador Place
Portland, Oregon 97220
Telephone: (503) 284-7581
(Name and address and telephone number of agent for service)
================================== ================ ====================== ======================= ==================
CALCULATION OF REGISTRATION FEE
================================== ================ ====================== ======================= ==================
Proposed Maximum Proposed Maximum
Title of Securities Amount to be Offering Price Aggregate Amount of
to be Registered Registered (1) Per Share Offering Price Registration Fee
---------------------------------- ---------------- ---------------------- ----------------------- ------------------
Common Stock, par value $0.001
per share, and options related 300,000 shares $7.79(2) $2,337,000(2) $190
thereto
Preferred Share Purchase Rights
300,000 rights (3) (3) (3)
================================== ================ ====================== ======================= ==================
(1) Pursuant to Rule 416 under the Securities Act of 1933, this registration
statement also covers an indeterminate number of additional shares reserved
for issuance under the 1997 Non-Officer Employee Stock Option Plan as a
result of any future stock split, stock dividend, or similar adjustment of
the outstanding Common Stock.
(2) Pursuant to Rule 457(h), the proposed maximum aggregate offering price and
the registration fee have been computed based on the average of the high
and low sales prices, $7.79, reported for the Common Stock on the Nasdaq
National Market System on November 24, 2003.
(3) Rights are attached to and trade with the Common Stock of Rentrak
Corporation. The value attributable to such Rights, if any, is reflected in
the market price of the Common Stock.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by the registrant with the
Securities and Exchange Commission are incorporated by reference in this
registration statement:
(a) The registrant's annual report on Form 10-K for the fiscal
year ended March 31, 2003.
(b) The registrant's quarterly reports on Form 10-Q for the
quarters ended June 30, 2003 and September 30, 2003.
(c) The registrant's current report on Form 8-K filed on June
25, 2003 (except as provided in Item 9 thereof).
(d) Description of the registrant's Common Stock contained in
a Registration Statement on Form 8-A, as supplemented by the description set
forth in Exhibit 99 to the registrant's annual report on Form 10-K for the
fiscal year ended March 31, 2001.
All documents filed by the registrant subsequent to those
listed above pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities
Exchange Act of 1934, as amended, prior to the filing of a post-effective
amendment which indicates that all securities offered 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.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
ORS 60.367, a section of the Oregon Business Corporation Act
(the "Act"), provides that any director held liable for an unlawful distribution
in violation of ORS 60.367 is entitled to contribution from (i) every other
director who voted for or assented to the distribution without complying with
the applicable statutory standards of conduct and (ii) each shareholder for the
amount the shareholder accepted knowing the distribution was made in violation
of the Act or the corporation's articles of incorporation.
Article VIII, Section 2, of the registrant's Amended and
Restated Articles of Incorporation ("Article VIII") and Article 10 of the
registrant's Restated Bylaws, as amended ("Article 10"), require the registrant
to indemnify officers, directors and employees to the fullest extent authorized
by 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.
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Indemnification is granted with 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 attorney 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
registrant, 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 registrant against the expenses (including
attorney 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 registrant. No right of indemnity is granted if the person is
adjudged liable to the registrant, 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 includes the right to be paid by the
registrant 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 registrant 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
registrant for payment and the registrant 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 registrant 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 also provides for the elimination of personal
liability of directors to the registrant or its shareholders for monetary
damages for conduct as a director to the full extent permitted by the Act. Under
Section 60.047 of the Act, a corporation may not eliminate or limit the
liability of a director for: (i) any breach of the director's duty of loyalty to
the corporation or its shareholders, (ii) acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii) any
unlawful distribution under Section 60.367 of the Act, or (iv) any transaction
from which the director derived an improper personal benefit.
Article VIII and Article 10 provide that the registrant may
maintain insurance to protect itself and its directors, officers, employees or
agents against any expense, liability or loss whether or not the registrant has
the power to indemnify such person against such expense, liability or loss under
Oregon law. The registrant 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.
Item 7. Exemption from Registration Claimed.
Not applicable.
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Item 8. Exhibits.
The Index to Exhibits listing the exhibits required by Item
601 of Regulation S-K is located on page II-6.
Item 9. Undertakings.
(a) The undersigned 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 ("Securities Act");
(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;
(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) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 ("Exchange Act") that are incorporated by
reference in the registration statement.
(2) That, for the purpose of determining any liability
under the Securities Act, 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.
(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, each filing of
the registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) 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 may be permitted to directors, officers, and controlling
persons of the registrant pursuant to the provisions described in Item 6 above
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 Securities 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
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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
Securities Act and will be governed by the final adjudication of such issue. The
undertaking of the registrant in the preceding sentence does not apply to
insurance against liability arising under the Securities Act.
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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, as of the 25th day of
November, 2003.
RENTRAK CORPORATION
(Registrant)
By: /s/ PAUL A. ROSENBAUM
--------------------------------
Paul A. Rosenbaum
Chairman and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933,
this registration statement has been signed by the following persons in the
capacities indicated as of the 25th day of November, 2003.
Signature Title
PRINCIPAL EXECUTIVE OFFICER AND
DIRECTOR:
/s/ PAUL A. ROSENBAUM Chairman and Chief Executive
--------------------- Officer and Director
Paul A. Rosenbaum
PRINCIPAL FINANCIAL AND
ACCOUNTING OFFICER:
/s/ MARK L. THOENES Senior Vice President and Chief
------------------- Financial Officer
Mark L. Thoenes
A MAJORITY OF THE BOARD OF
DIRECTORS:
CECIL D. ANDRUS* Director
GEORGE H. KUPER* Director
JOON S. MOON* Director
JAMES G. PETCOFF* Director
STANFORD C. STODDARD* Director
*By /s/ MARK L. THOENES
-------------------
Mark L. Thoenes, Attorney-in-Fact
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INDEX TO EXHIBITS
4.1 Instruments defining the rights of security holders. See Article III
of the registrant's Amended and Restated Articles of Incorporation, incorporated
by reference to the registrant's Form S-3 Registration Statement (No. 33-8511)
filed on November 21, 1994, and Articles 2, 3, 5, 7, 9, and 11 of the
registrant's 1995 Restated Bylaws, as amended, incorporated by reference to
Exhibit 3.1 to the registrant's Quarterly Report on Form 10-Q for the quarter
ended December 31, 2000.
4.2 Rights Agreement dated as of May 18, 1995, between the registrant
and U.S. Stock Transfer Corporation as Rights Agent ("Rights Agreement"),
incorporated by reference to Exhibit 4 to the registrant's current Report on
Form 8-K filed June 5, 1995.
5 Opinion of Miller Nash LLP as to the legality of the securities
being registered.
23.1 Consent of KPMG LLP.
23.2 Consent of Miller Nash LLP (included in Exhibit 5).
24 Power of attorney of officers and directors.
Other exhibits listed in Item 601 of Regulation S-K are not applicable.
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Exhibit 5
Miller Nash LLP
3400 U.S. Bancorp Tower
111 S.W. Fifth Avenue
Portland, Oregon 97204-3699
(503) 224-5858
(503) 224-0155 fax
November 25, 2003
Rentrak Corporation
One Airport Center
7700 N.E. Ambassador Place
Portland, Oregon 97220
Subject: Registration Statement on Form S-8 Relating to the
1997 Non-Officer Employee Stock Option Plan
Gentlemen:
Reference is made to the Registration Statement on Form S-8
("Registration Statement") to be filed by Rentrak Corporation, an Oregon
corporation ("Company"), with the Securities and Exchange Commission for the
purpose of registering under the Securities Act of 1933, as amended (the
"Securities Act"), an aggregate of 300,000 shares of the Company's Common Stock,
par value $0.001 per share ("Common Stock"), to be issued under the Company's
1997 Non-Officer Employee Stock Option Plan (the "Plan"), together with options
and other rights relating thereto.
We have examined originals or copies, certified or otherwise
identified to our satisfaction, of such corporate records, certificates of
public officials, and other documents as we have deemed necessary or relevant as
a basis for the opinion set forth herein.
Based on the foregoing, it is our opinion that:
1. The Plan has been duly adopted and approved by all
necessary corporate action and, when options relating to the 300,000 shares of
Common Stock referred to above are granted in accordance with the Plan, such
options have or will have been legally issued.
2. When shares of Common Stock are issued and sold by the
Company upon exercise of options duly granted under the Plan while the
Registration Statement is effective, and the Company receives payment for such
shares to the extent and in the manner required by the Plan, such shares will be
legally issued, fully paid, and nonassessable.
We consent to the use of this opinion in the Registration
Statement and in any amendments thereof. In giving this consent, we do not
thereby admit that we are in the category of persons whose consent is required
under Section 7 of the Securities Act.
Very truly yours,
/s/ MILLER NASH LLP
Exhibit 23.1
Consent of Independent Public Auditors
We consent to the incorporation by reference in the Registration Statement on
Form S-8 of Rentrak Corporation to register shares for the Rentrak 1997
Non-Officer Employee Stock Option Plan of our report dated June 9, 2003, with
respect to the consolidated balance sheets of Rentrak Corporation and
subsidiaries as of March 31, 2003 and 2002, and the related consolidated
statements of operations, stockholders' equity, and cash flows and the related
financial statement schedule for each of the years in the three-year period
ended March 31, 2003, which report appears in the annual report on Form 10-K of
Rentrak Corporation.
/s/ KPMG LLP
-------------------
Portland, Oregon
November 25, 2003
Exhibit 24
POWER OF ATTORNEY
Each person whose signature appears below designates and appoints PAUL A.
ROSENBAUM and MARK L. THOENES, and either of them, his true and lawful
attorneys-in-fact and agents to sign a registration statement on Form S-8 to be
filed by Rentrak Corporation, an Oregon corporation, with the Securities and
Exchange Commission under the Securities Act of 1933, as amended, for the
purpose of registering 300,000 additional shares of common stock of Rentrak
Corporation, and options and other rights relating thereto, to be issued
pursuant to the Rentrak Corporation 1997 Non-Officer Employee Stock Option Plan,
together with any and all amendments (including post-effective amendments) to
the registration statement. Each person whose signature appears below also
grants full power and authority to these attorneys-in-fact and agents to take
any action and execute any instruments that they deem necessary or desirable in
connection with the preparation and filing of the registration statement, as
fully as he could do in person, hereby ratifying and confirming all that the
attorneys-in-fact and agents or their substitutes may lawfully do or cause to be
done.
IN WITNESS WHEREOF, this power of attorney has been executed by each of the
undersigned as of the 17th day of November, 2003.
Signature Title
---------- ------
/s/ PAUL A. ROSENBAUM Chairman and Chief Executive Officer
--------------------------- and Director (Principal Executive Officer)
Paul A. Rosenbaum
/s/ MARK L. THOENES Senior Vice President and Chief Financial
--------------------------- Officer (Principal Financial and Accounting
Mark L. Thoenes Officer)
/s/ CECIL D. ANDRUS Director
---------------------------
Cecil D. Andrus
/s/ GEORGE H. KUPER Director
---------------------------
George H. Kuper
/s/ JOON S. MOON Director
---------------------------
Joon S. Moon
/s/ JAMES G. PETCOFF Director
---------------------------
James G. Petcoff
/s/ STANFORD C. STODDARD Director
------------------------
Stanford C. Stoddard