Stock Pledge Agreement - Rentrak Corp. and Ron Berger
STOCK PLEDGE AGREEMENT
DATE: June 16, 2000
BETWEEN: Ron Berger (Pledgor)
AND: Rentrak Corporation ("Secured Party" or "Company")
RECITALS
A. Pledgor and Secured Party entered into a Loan Agreement of even date
herewith (the "Loan Agreement"), wherein the Secured Party agreed to loan funds
to Pledgor to exercise certain options to purchase stock of the Company, and
Pledgor agreed to execute and deliver a Promissory Note to the Secured Party in
payment therefor, a copy of which is attached to the Loan Agreement as Exhibit A
(the "Note").
B. Pledgor agreed within the Loan Agreement to grant Secured Party a
security interest in the shares of the common stock of the Company that Pledgor
purchased with the proceeds of the Note (the "Shares" or "Pledged Shares"), to
secure payment of Pledgor's obligations under the Loan Agreement and the Note.
NOW, THEREFORE, in order to secure payment of the Note, the parties agree
as follows:
AGREEMENT
1. Grant of Security Interest. Pledgor grants to Secured Party a first
priority security interest in the Shares.
2. Obligations. The obligations secured by this Agreement are the
obligations of Pledgor on the Note, the Loan Agreement and this Agreement,
including the obligation to make all payments on the Note.
3. Delivery of Certificates for Pledged Shares. Pledgor has delivered to
Secured Party one or more stock certificates evidencing the Pledged Shares (the
"Certificates"), together with a stock power endorsed in blank, to hold subject
to the terms of this Agreement.
4. Care of Certificates. Secured Party shall take reasonable care in the
custody and the preservation of the Certificates. On performance in full of all
obligations secured by this Agreement, Secured Party shall deliver the
Certificates to Pledgor, together with the stock power endorsed by Pledgor in
blank.
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5. Covenants of Pledgor with Respect to Pledged Shares. Pledgor agrees
that:
(a) Pledgor shall not allow or grant any other lien or security interest
with respect to the Pledged Shares.
(b) Pledgor shall procure, execute, and deliver from time to time any
endorsements, assignments, financing statements, and other writings deemed
necessary or appropriate by Secured Party to perfect, maintain, and protect
Secured Party's security interest and priority in the Pledged Shares.
6. Authorized Action by Secured Party; Proxy. Pledgor irrevocably
appoints Secured Party as attorney-in-fact and grants Secured Party a proxy to
do (but Secured Party shall not be obligated to, and shall incur no liability
to, Pledgor or any third party for failure to, do so), after and during the
continuance of an Event of Default (as defined in Section 8, below), any act
that Pledgor is obligated by this Agreement to do and to exercise such rights
and powers as Pledgor might exercise with respect to the Pledged Shares. With
respect to voting the Pledged Shares, this Section 6 constitutes an irrevocable
appointment of a proxy, coupled with an interest, which shall continue until all
obligations secured hereunder are performed in full, provided, however, Secured
Party shall have no rights under such proxy unless and until there is an
occurrence of an Event of Default by Pledgor hereunder.
7. Voting Pledged Shares; Custody of Certificates.
(a) As long as no Event of Default (as defined in Section 8, below) shall
have occurred, and further subject to the other provisions of this Agreement,
Pledgor shall be entitled to vote the Pledged Shares.
(b) If at any time or from time to time, with respect to the Pledged
Shares, Pledgor shall receive or shall become entitled to receive any dividend,
warrant, option, or any other distribution (including bonus payments as
discussed in the Loan Agreement), whether in securities or other property, for
any reason, including without limitation, liquidation, stock split, spin-off,
split-up or reclassification, combination of shares, or the like, or in case of
any reorganization, consolidation, or merger, Pledgor shall immediately deliver
all such dividends or other distribution, in pledge, to Secured Party as
security for the payment and performance of the obligations secured by this
Agreement. Pledgor shall immediately notify the Company to make all such
distributions directly to Secured Party. Secured Party may endorse, in Secured
Party's name or in the name of Pledgor, any and all instruments by which any
payment on the Pledged Shares may be made and may take such action as Secured
Party may deem appropriate from time to time, in Secured Party's name or in the
name of Pledgor, to enforce collection of the Pledged Shares. For such purpose,
Pledgor appoints Secured Party the attorney-in-fact of Pledgor, under a power
coupled with an interest, with full power of substitution.
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(c) So long as the obligations secured by this Agreement remain
outstanding, Pledgor will not transfer, whether by sale, gift, or otherwise, any
ownership interest in the Shares without Secured Party's prior written approval.
8. Events of Default. Any one or more of the following events constitutes
an event of default under this Agreement ("Event of Default"):
(a) The occurrence of an Event of Default under the Loan Agreement, as
such term is defined in the Loan Agreement, specifically including, without
limitation, failure of the Pledgor to comply with any term or condition of, or
fulfill any of Pledgor's obligations under, the Note attached as an Exhibit to
the Loan Agreement within the applicable cure periods, if any, set forth
therein.
(b) A breach of or failure to perform any of the terms of this Agreement,
which has not been cured within 5 days after notice has been given of such
breach or failure, including, without limitation, the covenants contained in
this Agreement.
9. Remedies Upon Default. Upon the occurrence of any Event of Default by
Pledgor, Secured Party may, in Secured Party's sole discretion, take the
following steps:
(a) Secured Party may foreclose on its security interest in the Pledged
Shares in accordance with the Oregon Uniform Commercial Code, provided, however,
in no event shall Pledgor be personally liable for any Principal Deficiency
(such term meaning that portion of the Note balance attributable to principal
(but not to interest) under the terms of the Note and Loan Agreement) in any
action or suit to foreclose on Secured Party's security interest in the Pledged
Shares, or any deficiency resulting from the sale of the Pledged Shares, nor
shall any action or proceeding be brought against Pledgor to recover judgment
against Pledgor upon any outstanding obligations or liabilities of Pledgor under
the Loan Agreement or any of the Agreements attached as Exhibits thereto; and
(b) Pursue any other remedy available at law or equity to recover any sums
other than a Principal Deficiency.
10. Limited Recourse. Notwithstanding any provision express or implied
herein to the contrary, in the event of the occurrence of an Event of Default by
Pledgor hereunder, including a default by Pledgor in the payment of principal,
on the Note, Pledgor shall not be personally liable therefor and Secured Party's
sole remedy for such default shall be limited to the remedies set forth in
Section 9 above. This Agreement and the Note are non-recourse to Pledgor with
respect to Principal Deficiencies, but not with respect to payment of interest.
In no event shall Pledgor be personally liable for any Principal Deficiency in
any action or suit to foreclose on Secured Party's security interest in the
Pledged Shares.
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11. Miscellaneous.
11.1 Entire Agreement; Amendment. This document and the documents
referenced herein are the entire, final and complete Agreement and understanding
of the parties with respect to the subject manner hereof, and supersedes and
replaces all written and oral agreements and understandings heretofore made or
existing by and between the parties or their representatives with respect
thereto. No supplement, modification or amendment of this Agreement shall be
valid, unless the same is in writing and signed by all parties hereto.
11.2 Waiver. No waiver of any provision of this Agreement shall be
deemed, or shall constitute, a waiver of any other provision, whether or not
similar, nor shall any waiver constitute a continuing waiver. No waiver shall be
binding unless executed in writing by the party making the waiver.
11.3 Binding Effect. All rights, remedies and liabilities herein
given to or imposed upon the parties shall extend to, inure to the benefit of
and bind, as the circumstances may require, the parties and their respective
heirs, personal representatives, administrators, successors and assigns.
11.4 Notices. Any notice or other communication required or
permitted under this Agreement shall be in writing and shall be deemed given on
the date of transmission when sent by telex or facsimile transmission, on the
third business day after the date of mailing when mailed by certified mail,
postage prepaid, return receipt requested, from within the United States, or on
the date of actual delivery, whichever is the earliest, and shall be sent to the
following addresses, or to such other address as any party may hereafter
designate by written notice to the others:
Secured Party Pledgor
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Rentrak Corporation Ron Berger
One Airport Center 20929 SE Tillstrom Road
7700 N.E. Ambassador Place Gresham, Oregon 97030
Portland, Oregon 97220
11.5 Severability. If any portion of this Agreement or its
application is construed to be invalid, illegal or unenforceable, then the other
portions of the Agreement or its application thereof shall not be affected
thereby and shall be given full force and effect without regard to the invalid
or unenforceable portions.
11.6 Attorney's Fees. In the event any suit, action or other legal
proceeding shall be instituted to declare or enforce any right created by this
Agreement, or by reason of any breach of this Agreement, the prevailing party
shall be entitled to recover reasonable attorney fees as fixed by the trial
court and all appellate courts.
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11.7 Governing Law. This Agreement shall be governed, construed and
enforced in accordance with the laws of the State of Oregon, excluding its
conflict of law principles.
11.8 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original instrument and all
of which together shall constitute a single agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed in duplicate as of the day and year first above written.
PLEDGOR:
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Name: Ron Berger
SECURED PARTY: RENTRAK CORPORATION
By: F. Kim Cox
Title: President
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