REGISTRATION RIGHTS AGREEMENT
Exhibit 4.4
Execution Copy
THIS REGISTRATION RIGHTS AGREEMENT (this “Agreement”) is made and entered into as of
November 3, 2010, by and between RealPage, Inc., a Delaware corporation (the “Company”) and
each of the other parties signatory hereto (the “Investors”).
RECITALS
WHEREAS, pursuant to that certain Asset Purchase Agreement dated as of
November 3, 2010, by and among the Company, RP Newco LLC, a wholly owned subsidiary of the
Company (the “Buyer”), and the Seller Parties named therein, including the Investors (the
“Asset Purchase Agreement”), on the Holdback Payment Date (as defined in the Asset Purchase
Agreement), the Company may issue, and the Investors may receive, shares of Common Stock in payment
of a portion of the Holdback Consideration Amount (as defined in the Asset Purchase Agreement) to
which the Investors are entitled to on the Holdback Payment Date pursuant to the terms of the Asset
Purchase Agreement subject to the Buyer’s sole and exclusive right to elect to make full or partial
payment of such amount in cash in lieu of Common Stock.
WHEREAS, the execution and delivery of this Agreement by the Investors and Company are
inducements and conditions precedent to the consummation of the transactions contemplated in the
Asset Purchase Agreement;
NOW, THEREFORE, in consideration of the mutual promises and agreements set forth herein and in
the Asset Purchase Agreement, and other valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto hereby agree as follows:
1. Certain Definitions. Unless otherwise set forth in this Agreement, all capitalized
terms shall have the meaning set forth in the Asset Purchase Agreement. As used in this Agreement,
the following terms shall have the following respective meanings:
“Company” shall have the meaning set forth in the preamble and shall include the
Company’s successors by merger, acquisition, reorganization or otherwise.
“Commission” shall mean the United States Securities and Exchange Commission, or any
other federal agency administering the Securities Act and the Exchange Act at the time.
“Common Stock” shall mean the common stock, par value $0.001 per share, of the
Company, and any other common equity securities issued by the Company, and any other shares of
stock issued or issuable with respect thereto (whether by way of a stock dividend or stock split or
in exchange for or upon conversion of such shares or otherwise in connection with a combination of
shares, recapitalization, merger, consolidation or other corporate reorganization).
“Exchange Act” shall mean the Securities Exchange Act of 1934, as amended from time to
time, or any similar successor federal statute, and the rules and regulations of the Commission
thereunder.
“Holder” shall mean any Investor who holds Registrable Securities.
“Person” shall mean an individual, a corporation, a partnership, a joint venture, a
trust, an unincorporated organization, a limited liability company or partnership, a government and
any agency or political subdivision thereof.
“Registrable Securities” shall mean (i) any shares of Common Stock issued to the
Investors in payment of any portion of the Holdback Consideration Amount to which the Investors are
entitled under the terms of the Asset Purchase Agreement, and (ii) any other securities issued or
issuable with respect to any such shares described in clause (i) above by way of a stock dividend
or stock split or in connection with a combination of shares, recapitalization, merger,
consolidation or other reorganization; provided, however, that Registrable Securities shall not
include any shares of Common Stock described in clause (i) or (ii) above which have previously been
registered or sold to the public pursuant to a registration statement, which have been sold or
could be sold during any ninety (90) day period without volume limitations under Rule 144 or which
have been sold in a private transaction in which the transferor’s rights under this Agreement are
not validly assigned in accordance with this Agreement.
“register,” “registered” and “registration” shall refer to a
registration effected by preparing and filing a registration statement in compliance with the
Securities Act and applicable rules and regulations thereunder, and the declaration or ordering of
the effectiveness of such registration statement.
“Registration Expenses” shall mean the expenses so described in Section 5 hereof.
“registration statement” shall refer to a registration statement in compliance with
the Securities Act and applicable rules and regulations thereunder, used to register any
Registrable Securities pursuant to this Agreement.
“Rule 144” shall mean Rule 144 as promulgated by the Commission under the Securities
Act, as may be amended from time to time, or any similar successor rule that may be promulgated by
the Commission.
“Securities Act” shall mean the Securities Act of 1933, as amended from time to time,
or any similar successor federal statute, and the rules and regulations of the Commission
thereunder.
“Selling Expenses” shall mean any underwriting discounts, selling commissions and
stock transfer taxes applicable to the sale of Registrable Securities and the fees and
disbursements of counsel or any other professional advisors for any Holders incurred in connection
with a registration.
“Senior Holders” shall mean the holders of the registration rights set forth in the
Senior Registration Rights Agreement.
“Senior Registration Rights Agreement” shall mean that certain Second Amended and
Restated Registration Rights Agreement dated February 22, 2008, between the Company and certain of
its securityholders, as may be amended from time to time.
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2. Registration Rights.
(a) S-3 Registration. After the Holdback Payment Date, and only if the Company has
issued shares of Common Stock to the Investors in payment of any portion of the Holdback
Consideration Amount to which the Investors are entitled under the terms of the Asset Purchase
Agreement, subject to the terms and conditions of this Agreement, the Company shall use reasonable
efforts as described in this Section to register for resale the Registrable Securities on a
registration statement on Form S-3 (or any successor form) under the Securities Act (or, if the
Company is not eligible to use a Form S-3 registration statement or if a Form S-3 registration
statement is otherwise not available, such other form that the Company is eligible to use and that
is available in order to register the Registrable Securities) the “Registration
Statement”). Subject to the terms and conditions of this Agreement, the Company shall use
reasonable efforts to cause such Registration Statement to be filed with the Commission no later
than thirty (30) days following the date on which the Company issues shares of Common Stock to the
Investors in payment of any portion of the Holdback Consideration Amount to which the Investors are
entitled under the terms of the Asset Purchase Agreement, and shall use reasonable efforts to cause
such Registration Statement to be declared effective as soon as reasonably practicable after the
filing thereof.
(b) Piggyback Registration. If at any time within one hundred eighty (180) days
following the Holdback Payment Date, and only if the Company has issued shares of Common Stock to
the Investors in payment of any portion of the Holdback Consideration Amount to which the Investors
are entitled under the terms of the Asset Purchase Agreement, the Company proposes to register any
of its securities under the Securities Act for sale to the public on its own account or the account
of any of its securityholders (other than a registration pursuant to Section 2(a), a registration
relating solely to employee benefit plans, a registration relating to the offer and sale of debt
securities, a registration relating to a corporate reorganization or other Rule 145 transaction, or
a registration on any registration form that does not permit secondary sales), then the Company
shall give written notice of such proposed registration to the Holders. Within ten (10) days after
the Company’s notice is deemed given pursuant to Section 8(b), any Holder who desires to include
Registrable Securities in such proposed registration shall deliver to the Company a written request
specifying the number of Registrable Securities that such Holder desires to include in the proposed
registration. Upon receipt of such written request, the Company shall, subject to Section 2(c) and
Section 2(d), use its commercially reasonable efforts to include in such proposed registration (and
any related qualification under “blue sky” laws) all Registrable Securities of the Holder requested
to be registered. If any Holder decides not to include all of its Registrable Securities in a
registration by the Company pursuant to this Section 2(b), the registration rights of such Holder
under this Section 2(b) shall continue to apply to subsequent registrations with respect to
Registrable Securities retained by such Holder, all upon the terms and conditions set forth in this
Agreement. The Company shall have the right to
terminate or withdraw any registration initiated by it under this Section 2(b) prior to the
effectiveness of such registration whether or not any Holder has elected to include securities in
such registration.
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(c) Participation in Underwritten Registrations. No Holder of Registrable Securities
may participate in any underwritten registration hereunder unless such Holder (a) enters into an
underwriting agreement in customary form with the representative of the underwriter or underwriters
selected by the Company or other Persons entitled to select such underwriters and agrees to sell
its Registrable Securities on the basis of the terms in such underwriting agreement, and (b)
completes and executes all questionnaires, lock-up agreements, powers of attorney, indemnities,
custody agreements and other documents required under the terms of such underwriting agreement. If
a Holder who has requested inclusion in an underwritten offering does not agree to the terms of any
such underwriting, such Holder and such Holder’s securities shall be excluded therefrom and from
the registration statement by written notice from the Company or the underwriter.
(d) Senior Registration Rights. Notwithstanding anything contained herein, the
registration rights of the Holders set forth in this Agreement shall be subordinate to the
registration rights of the Senior Holders under the Senior Registration Rights Agreement and, in
the event of any reduction in the number of shares to be registered in a proposed registration, the
number of shares of Registrable Securities to be included in the proposed registration shall be
reduced prior to any reduction in the number of shares to be registered on the account of the
Senior Holders in such registration to the extent required by, and in accordance with, the Senior
Registration Rights Agreement.
(e) Postponement of Effectiveness. Upon receipt of any notice (a “Suspension
Notice”) from the Company of the happening of any event which makes any statement made or
incorporated in the registration statement or related prospectus untrue or which requires the
making of any changes in such registration statement or prospectus (or the information incorporated
therein) so that they will not contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements therein in the
light of the circumstances under which they were made not misleading, each holder of Registrable
Securities registered under such registration statement shall forthwith discontinue disposition of
Registrable Securities pursuant to such registration statement until such holder’s receipt of the
copies of the supplemented or amended prospectus or until it is advised in writing (the
“Advice”) by the Company that the use of the prospectus may be resumed, and has received
copies of any additional or supplemental filings which are incorporated by reference in the
prospectus. In the event that the Company shall give any Suspension Notice, the Company shall use
commercially reasonable efforts to render the Advice and end the suspension period as promptly as
reasonably practicable. The Company shall prepare and file with the Commission such amendments and
supplements to the registration statement and the prospectus used in connection therewith as may be
necessary to keep the registration statement continuously effective and in compliance with
applicable laws until such time as all Registrable Securities have been sold pursuant to the
registration statement; provided, however, the Company shall not be required to
keep such registration statement effective for more than 120 days (or such shorter period which
will terminate when all Registrable Securities covered by such registration statement have been
sold, but not prior to the expiration of the
applicable period referred to in Section 4(3) of the Securities Act and Rule 174 thereunder,
if applicable) (the first to occur, the “Expiration Date”).
The Company may require each seller of Registrable Securities as to which any registration is
being effected to furnish to the Company such information as is required to be included with
respect to such seller in a registration statement including information regarding themselves, the
Registrable Securities held by them and the intended method of disposition of such securities,
which information may be requested pursuant to an investor questionnaire prepared for such purpose.
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Each Holder will be deemed to have agreed by virtue of its execution and delivery of this
Agreement and its acquisition of Registrable Securities that, upon receipt of any notice from the
Company of a Suspension Notice as set forth in Section 2(e) such Holder will forthwith discontinue
disposition of such Registrable Securities covered by such registration statement or prospectus
until such Holder’s receipt of the copies of the supplemented or amended prospectus contemplated by
Section 2(e) hereof, or until it receives Advice that the use of the prospectus may be resumed and
such Holder has received copies of any additional or supplemental filings that are incorporated or
deemed to be incorporated by reference in such prospectus. Further, each Holder acknowledges and
agrees that its receipt of a Suspension Notice may constitute material, non-public information
under federal and/or applicable state securities laws.
3. Registration Procedures.
When the Company is required pursuant to the provisions of this Agreement to effect the
registration of any of its securities under the Securities Act, the Company will:
(a) prepare and file with the Commission a registration statement on the appropriate form
under the Securities Act with respect to such securities, which form shall comply in all material
respects with the requirements of the applicable form and include all financial statements required
by the Commission to be filed therewith, and use its commercially reasonable efforts to cause such
registration statement to become and remain effective until completion of the proposed offering;
(b) prepare and file with the Commission such amendments and supplements to such registration
statement and the prospectus used in connection therewith as may be necessary to keep such
registration statement effective until the Expiration Date and to comply with the provisions of the
Securities Act with respect to the sale or other disposition of all securities covered by such
registration statement, but only to the extent provided in this Agreement;
(c) file and use its commercially reasonable efforts to register or qualify the securities
covered by such registration statement under such other securities or state securities or “blue
sky” laws of such jurisdictions as each selling Holder shall reasonably request, and do any and all
other acts and things that may be necessary under such state securities or “blue sky” laws to
enable such selling Holder to consummate the public sale or other disposition in such jurisdictions
of the securities owned by such selling Holder, except that the Company shall not
for any such purpose be required to qualify to do business as a foreign corporation or consent
to service of process in any jurisdiction wherein it is not so qualified or has not so consented;
(d) make generally available to the Holders an earnings statement satisfying the provisions of
Section 11(a) of the Securities Act no later than seventy-five (75) days after the end of the
twelve (12)-month period beginning with the first (1st) day of the Company’s first fiscal quarter
commencing after the effective date of a registration statement, which earnings statement shall
cover said twelve (12)-month period, and which requirement will be deemed to be satisfied if the
Company satisfies the requirements of Rule 158 under the Securities Act;
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(e) if the Registrable Securities are of a class of securities that is listed on a national
securities exchange, file copies of any prospectus with the Commission in compliance with Rule 153
under the Securities Act so that the holders of Registrable Securities benefit from the prospectus
delivery procedures described therein;
(f) cooperate with each Holder and each underwriter, if any, participating in the disposition
of Registrable Securities and their respective counsel in connection with any filings required to
be made with the Financial Industry Regulatory Authority, Inc. (“FINRA”), including, if
appropriate, the pre-filing of a prospectus as part of a shelf registration statement in advance of
an underwritten offering;
(g) during the period when the prospectus is required to be delivered under the Securities
Act, promptly file all documents required to be filed with the Commission, including pursuant to
Sections 13(a), 13(c), 14, or 15(d) of the Exchange Act;
(h) provide a transfer agent and registrar for all Registrable Securities registered pursuant
hereunder and a CUSIP number for all such Registrable Securities, in each case no later than the
effective date of such registration;
(i) cause all Registrable Securities registered pursuant to the registration statement to be
listed on the NASDAQ Stock Market (“NASDAQ”) or other exchange on which securities of the
same class issued by the Company are then listed prior to or concurrent with the effectiveness of
the registration statement;
(j) provide copies to and permit one legal counsel designated by the selling Holders to review
the registration statement and all amendments and supplements thereto no fewer than three (3) days
prior to their filing with the Commission; provided, however, that notwithstanding
the foregoing, if the Company intends to file any prospectus, prospectus supplement or prospectus
sticker which does not make any material changes in the documents already filed (including, without
limitation, any prospectus under Rule 430A or 424(b)), then the counsel for the selling Holders
will be afforded such opportunity to review such documents prior to filing consistent with the time
constraints involved in filing such document, but in any event no less than one (1) day;
(k) upon request of a selling Holder or the legal counsel designated by the selling Holders,
furnish (i) one (1) copy of any registration statement and any amendment thereto, each preliminary
prospectus and prospectus and each amendment or supplement thereto,
and each letter written by or on behalf of the Company to the Commission or the staff of the
Commission, and each item of correspondence from the Commission or the staff of the Commission, in
each case relating to such registration statement (other than any portion of any thereof which
contains information for which the Company has sought confidential treatment) by electronic
transmission, and (ii) such number of copies of a prospectus, including a preliminary prospectus,
and all amendments and supplements thereto and such other documents as selling Holder may
reasonably request in order to facilitate the disposition of the Registrable Securities owned by
such selling Holder that are covered by the related registration statement;
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(l) use commercially reasonable efforts to (i) prevent the issuance of any stop order or other
suspension of effectiveness and, (ii) if such order is issued, obtain the withdrawal of any such
order as soon as reasonably practicable; and
(m) promptly notify the holders of Registrable Securities at any time when a prospectus
relating to Registrable Securities is required to be delivered under the Securities Act, upon the
Company’s becoming aware that the prospectus included in a registration statement, as then in
effect, includes an untrue statement of a material fact or omits to state any material fact
required to be stated therein or necessary to make the statements therein not misleading in light
of the circumstances then existing, and at the request of any such holder, use commercially
reasonable efforts to promptly prepare and furnish to such holder a reasonable number of copies of
a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter
delivered to the purchasers of such Registrable Securities, such prospectus shall not include an
untrue statement of a material fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein not misleading in light of the circumstances then
existing; and
(n) otherwise use commercially reasonable efforts to comply with all applicable rules and
regulations of the Commission under the Securities Act and the Exchange Act.
4. Indemnification.
(a) Indemnification by the Company. To the extent permitted by law, the Company will
indemnify and hold harmless each Investor, the members, owners, partners, officers, directors,
employees, agents, successors and assigns of each Investor, and each Person controlling such
Investor within the meaning of Section 15 of the Securities Act (individually and collectively the
“Indemnified Person”), against any losses, claims, damages, or liabilities (individually
and collectively, the “Liability”) (joint or several) to which such Indemnified Person may
become subject under the Securities Act or otherwise, insofar as such Liability (or actions or
proceedings in respect thereof) arises out of or is based upon any of the following statements,
omissions or violations (collectively a “Violation”) by the Company: (i) any untrue
statement or alleged untrue statement of a material fact contained in any registration statement
under which such Registrable Securities were registered under the Securities Act pursuant to this
Agreement, including any final prospectus contained therein or any amendments or supplements
thereto, (ii) the omission or alleged omission to state therein a material fact required to be
stated therein, or necessary to make the statements therein not misleading, or (iii) any
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violation
or alleged violation of the Securities Act, or any applicable federal or state securities law or
any
rule or regulation promulgated under the Securities Act, or any applicable federal or state
securities law in connection with the offering covered by such registration statement;
provided however, that the Company shall not be required to indemnify any Person
against any Liability to the extent that such Liability (or actions or proceedings in respect
thereof) arises out of or is based upon a Violation which occurs in reliance upon and in conformity
with written information furnished by such Investor, any of such Investor’s officers, directors,
partners, legal counsel or accountants or any Person controlling such Investor expressly for use in
connection with a registration statement, including any final prospectus contained therein or any
amendments or supplements thereto; provided further, that the Company shall not be
required to indemnify any Person against Liability to the extent that such Liability (or actions or
proceedings in respect thereof) arises out of or is based upon an untrue statement or omission made
in any preliminary prospectus if (i) such Investor failed to send or deliver a copy of the final
prospectus with or prior to the delivery of written confirmation of the sale by such Investor to
the Person asserting the claim from which such Liabilities arise, and (ii) the final prospectus
would have corrected such untrue statement or such omission; provided further, that
the Company shall not be required to indemnify any Person against Liability to the extent that such
Liability (or actions or proceedings in respect thereof) arises out of or is based upon an untrue
statement or omission in any prospectus if (x) such untrue statement or omission is corrected in an
amendment or supplement to such prospectus, and (y) having previously been furnished by or on
behalf of the Company with copies of such prospectus as so amended or supplemented, such Investor
thereafter fails to deliver such prospectus as so amended or supplemented prior to or concurrently
with the sale of a Registrable Security to the Person asserting the claim from which such
Liabilities arise; and provided further, that the indemnity agreement contained in this
Section 4(a) shall not apply to amounts paid in settlement if such settlement is effected without
the consent of the Company (which consent shall not be unreasonably withheld). The Company’s
indemnification obligations shall survive any transfer by such Investor of its Registrable
Securities.
(b) Indemnification by Investors. To the extent permitted by law, each Investor
agrees to indemnify and hold harmless the Company, each of the officers, directors, employees,
agents, successors and assigns of the Company, any other stockholder selling shares of Common Stock
in such registration, and each Person controlling the Company or such other stockholder within the
meaning of Section 15 of the Securities Act the Company (individually and collectively also the
“Indemnified Person”), from and against any Liability (joint or several) to which any such
Indemnified Person may become subject under the Securities Act or otherwise, insofar as such
Liability (or actions or proceedings in respect thereof) arises out of, or is based upon (i) any
untrue statement or alleged untrue statement of a material fact contained in any registration
statement under which such Registrable Securities were registered under the Securities Act pursuant
to this Agreement, including any final prospectus contained therein or any amendments or
supplements thereto, or (ii) the omission or alleged omission to state therein a material fact
required to be stated therein, or necessary to make the statements therein not misleading, in each
case to the extent that such untrue statement or alleged untrue statement or omission or alleged
omission occurs in reliance upon and conformity with written information furnished by such
Investor, any of such Investor’s officers, directors, partners, legal counsel or accountants or any
Person controlling such Investor expressly for use in connection with a registration statement,
including any final prospectus contained therein or any amendments or
supplements thereto. The liability of any Investor for indemnification contained in this
Section 4(b) shall not exceed the net proceeds from the sale of shares of Common Stock sold under
such registration statement received by such Investor, except in the case of willful fraud, or
intentional misstatement or omission by such Investor. Each Investor’s indemnification obligations
shall survive any transfer by such Investor of its Registrable Securities.
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(c) Conduct of Indemnification Proceedings. In the event the Company, any Investor or
other Indemnified Person receives a complaint, claim or other notice of any liability or action,
giving rise to a claim for indemnification under Sections 4(a) or (b) above, the Person claiming
indemnification under such paragraphs shall promptly notify the Person against whom indemnification
is sought (the “Indemnifying Person”) of such complaint, notice, claim or action, and the
Indemnifying Person shall have the right to investigate and defend any such loss, claim, damage,
liability or action; provided, that the failure to promptly give notice shall not relieve
the Indemnifying Person from any Liability except to the extent that it is materially prejudiced by
the failure or delay of the Indemnified Person in giving such notice. If any such complaint, claim
or other notice of any Liability or action is brought against any Indemnified Person and it
notifies the Indemnifying Person of its commencement, the Indemnifying Person will be entitled to
participate in and, to the extent that it elects by delivering written notice to the Indemnified
Person promptly after receiving notice of the commencement of the action from the Indemnified
Person, jointly with any other Indemnifying Person similarly notified, to assume the defense of the
action, with counsel reasonably satisfactory to the Indemnified Person, and after notice from the
Indemnifying Person to the Indemnified Person of its election to assume the defense, the
Indemnifying Person shall not be liable to the Indemnified Person for any legal or other expenses
except as provided below. The Indemnified Person shall have the right to employ its own counsel in
any such action, but the fees, expenses and other charges of such counsel shall be at the expense
of the Indemnified Person unless (i) the Indemnified Person has reasonably concluded (based on
advice of legal counsel) that there may be legal defenses available to it or other Indemnified
Persons different from or in addition to those available to the Indemnifying Person or Persons, or
(ii) a conflict or potential conflict exists (based on advice of counsel to the Indemnified Person)
between the Indemnified Person and the Indemnifying Person (in which case the Indemnifying Person
shall not have the right to direct the defense of such action on behalf of the Indemnified Person),
in each of which cases the reasonable fees, disbursements and other charges of counsel will be at
the expense of the Indemnifying Person or Persons. The Indemnifying Person or Persons shall not,
unless there exists a conflict of interest among the Indemnified Persons, in connection with any
proceeding or related proceedings in the same jurisdiction, be liable for the reasonable fees,
disbursements and other charges of more than one separate firm admitted to practice in such
jurisdiction at any time for all such Indemnified Persons. All such fees, disbursements and other
charges shall be reimbursed by the Indemnifying Person promptly as they are incurred. An
Indemnifying Person shall not be liable for any settlement of any action or claim effected without
its written consent (which consent will not be unreasonably withheld). No Indemnifying Person
shall, without the prior written consent of each Indemnified Person, settle or compromise or
consent to the entry of any judgment in any pending or threatened claim, action or proceeding
relating to the matters contemplated by this Section 4 (whether or not any Indemnified Person is a
party thereto) unless such settlement, compromise or consent includes an unconditional release of
each Indemnified Person from all liability arising or that may arise out of such claim, action or
proceeding.
(d) Contribution. If the indemnification provided for in this Section 4 from the
Indemnifying Person is held by a court of competent jurisdiction to be unavailable to an
Indemnified Person hereunder in respect of any Liability or expenses referred to herein, then the
Indemnifying Person, in lieu of indemnifying such Indemnified Person, shall contribute to the
amount paid or payable by such Indemnified Person as a result of such Liability or expenses in such
proportion as is appropriate to reflect the relative fault of the Indemnifying Person and
Indemnified Persons in connection with the actions which resulted in such Liability or expenses, as
well as any other relevant equitable considerations. The relative fault of such Indemnifying
Person and Indemnified Persons shall be determined by reference to, among other things, whether any
action in question, including any untrue or alleged untrue statement of a material fact, has been
made by, or relates to information supplied by, such Indemnifying Person or Indemnified Persons,
and the parties’ relative intent, knowledge, access to information and opportunity to correct or
prevent such action.
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The parties hereto agree that it would not be just and equitable if contribution pursuant to
this Section 4(d) were determined by pro rata allocation or by any other method of allocation that
does not take into account the equitable considerations referred to in the immediately preceding
paragraph. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f)
of the Securities Act) will be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
(e) The amount paid by an Indemnifying Person or payable to an Indemnified Person as a result
of the Liabilities or expenses referred to in this Section 4 shall be deemed to include, subject to
limitations set forth above, any legal or other expenses, in each case, reasonably incurred by such
Indemnified Person in connection with investigating or defending any such action or claim. The
indemnification and contribution provided for in this Section 4 shall remain in full force and
effect regardless of any investigation made by or on behalf of the Indemnified Persons or any other
officer, director, employee, agent or controlling person of the Indemnified Persons.
5. Registration Expenses.
All expenses incurred in connection with effecting the registrations provided for in
Section 2 including, without limitation, all registration and filing fees, printing expenses, fees
and disbursements of counsel for the Company, expenses of any audits incident to or required by
any such registration and expenses of complying with the state securities or “blue sky” laws of
any jurisdictions but excluding any Selling Expenses (all of such expenses referred to as
“Registration Expenses”), shall be paid by the Company whether or not the registration
statement to which such Registration Expenses relate becomes effective; provided,
however, that the Company shall not be liable (and shall be reimbursed by the
participating Holders) for any Registration Expenses if such registration statement does not
become effective as a result of the actions or omissions of the Holders participating in the
registration. All Selling Expenses relating to securities registered on behalf of the Holders
shall be paid by the Holders.
6. Lock Up.
Each Holder agrees not to directly or indirectly offer, sell, contract to sell, sell any
option or contract to purchase, purchase any option or contract to sell, grant any option, right or
warrant for the sale of or otherwise dispose of or transfer any shares of capital stock of the
Company held by it during the period commencing ten (10) days prior to the effective date of a
registration statement related to an underwritten public offering of the Company’s securities and
ending one hundred and eighty (180) days following the effective date of such registration
statement (or for such shorter period of time as is sufficient and appropriate in the opinion of
the managing underwriter or for such longer period of time as may be requested by the Company or an
underwriter to accommodate regulatory restrictions on (i) the publication or other distribution of
research reports and (ii) analyst recommendations and opinions, including, but not limited to, the
restrictions contained in NASD Rule 2711(f)(4) or NYSE Rule 472(f)(4), or any successor provisions
or amendments thereto) and, if so requested by the Company or managing underwriter, each Holder
shall execute an agreement with respect to the foregoing.
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7. Rule 144.
The Company covenants that it will timely file the reports required to be filed by it under
the Securities Act and the Exchange Act and the rules and regulations adopted by the Commission
thereunder and to take such further action as any Holder may reasonably request, all to the extent
required from time to time to enable such Holder to sell Registrable Securities without
registration under the Securities Act subject to the limitations of the exemptions provided by
Rule 144 or any similar rule or regulation hereafter adopted by the Commission. Upon request, the
Company will provide to a Holder written certification of its compliance with the reporting
requirements of Rule 144.
Restrictions on Transfer.
(a) The holder of each certificate representing Registrable Securities by acceptance thereof
agrees to comply in all respects with the provisions of this Section 8. Each Holder agrees not to
make any sale, assignment, transfer, pledge or other disposition of all or any portion of the
Registrable Securities, or any beneficial interest therein, unless and until:
(i) There is then in effect a registration statement under the Securities Act covering such
proposed disposition and the disposition is made in accordance with the registration statement; or
(ii) The Holder shall have given prior written notice to the Company of the Holder’s intention
to make such disposition and shall have furnished the Company with a detailed description of the
manner and circumstances of the proposed disposition, and the Holder shall have furnished the
Company, at the Holder’s expense, with an opinion of counsel reasonably satisfactory to the Company
to the effect that such disposition will not require registration of such Registrable Securities
under the Securities Act whereupon the holder of such
Registrable Securities shall be entitled to transfer such Registrable Securities in accordance
with the terms of the notice delivered by the Holder to the Company.
(b) Notwithstanding the provisions of Section 8(a), no such registration statement or opinion
of counsel shall be necessary for (i) a transfer not involving a change in beneficial ownership, or
(ii) transactions involving the distribution without consideration of Registrable Securities by any
Holder to (x) a parent, subsidiary or other affiliate of the Holder, if the Holder is a
corporation, (y) any of the Holder’s partners, members or other equity owners, or retired partners,
retired members or other equity owners, or to the estate of any of the Holder’s partners, members
or other equity owners or retired partners, retired members or other equity owners, or (z) a
venture capital fund that is controlled by or under common control with one or more general
partners or managing members of, or shares the same management company with, the Holder; provided,
in each case, that the Holder shall give written notice to the Company of the Holder’s intention to
effect such disposition and shall have furnished the Company with a detailed description of the
manner and circumstances of the proposed disposition and the transferor delivers an executed copy
of the Instrument of Accession attached hereto as Exhibit A.
11
(c) Each certificate representing Registrable Securities shall (unless otherwise permitted by
the provisions of this Agreement) be stamped or otherwise imprinted with a legend substantially
similar to the following (in addition to any legend required under applicable state securities
laws):
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE “ACT”), OR UNDER THE SECURITIES LAWS OF CERTAIN STATES. THESE SECURITIES MAY
NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED, PLEDGED OR HYPOTHECATED EXCEPT AS PERMITTED
UNDER THE ACT AND APPLICABLE STATE SECURITIES LAWS PURSUANT TO REGISTRATION OR AN EXEMPTION
THEREFROM. THE ISSUER OF THESE SECURITIES MAY REQUIRE AN OPINION OF COUNSEL REASONABLY
SATISFACTORY TO THE ISSUER THAT SUCH OFFER, SALE OR TRANSFER, PLEDGE OR HYPOTHECATION
OTHERWISE COMPLIES WITH THE ACT AND ANY APPLICABLE STATE SECURITIES LAWS.
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO RESTRICTIONS ON TRANSFERABILITY
AND RESALE, INCLUDING A LOCK-UP PERIOD IN THE EVENT OF A PUBLIC OFFERING, AS SET FORTH IN A
REGISTRATION RIGHTS AGREEMENT AMONG THE COMPANY AND THE ORIGINAL HOLDERS OF THESE SHARES, A
COPY OF WHICH MAY BE OBTAINED AT THE PRINCIPAL OFFICE OF THE COMPANY.
The Holders consent to the Company making a notation on its records and giving instructions to
any transfer agent of the Registrable Securities in order to implement the restrictions on transfer
established in this Section 8. The legends stamped on a certificate evidencing the Registrable
Securities and the stock transfer instructions and record notations with respect to the Registrable
Securities shall be removed and the Company shall issue a certificate without such legend to the
holder if (i) those securities are registered under the
Securities Act, or (ii) the holder provides the Company with an opinion of counsel reasonably
acceptable to the Company to the effect that a sale or transfer of those securities may be made
without registration or qualification.
12
9. Termination.
This Agreement shall terminate on the date on which the portion of the Holdback Consideration
Amount to which the Investors are entitled under the terms of the Asset Purchase Agreement is paid
in full if no shares of Common Stock are issued in payment of any portion of the Holdback
Consideration Amount.
10. Miscellaneous.
(a) Amendments and Waivers. The provisions of this Agreement may be amended,
modified, supplemented or waived with the prior written consent of the Company and the Holders of a
majority of the Registrable Shares then outstanding.
(b) Notices.
(i) All notices, demands and other communications given with respect to this Agreement shall
be in writing and shall be given by one of the following methods (all charges prepaid and properly
addressed to the addresses set forth in Section 8(b)(ii)):
(A) by personal delivery, in which case the notice, demand or communication will be
deemed given upon receipt;
(B) by facsimile or electronic mail transmission, in which case the notice, demand or
communication will be deemed given when directed to the relevant facsimile number or
electronic mail address, if sent during normal business hours, or if not sent during normal
business hours, then on the next business day;
(C) by prepaid, nationally recognized overnight courier service, in which case the
notice, demand or communication will be deemed given one business day after deposit with
such overnight courier service;
(D) by first class U.S. mail (return receipt requested), in which case the notice,
demand or communication will be deemed given five business days after being deposited into
the U.S. mail.
(ii) All notices, demands and communications sent pursuant to this Section 8(b) must be
addressed as follows:
If to an Investor: To the address, facsimile number or electronic
mail address set forth on the signature page of such Investor to this
Agreement (as may be updated in accordance with Section 8(b)(iii)).
With a copy to (which copy does not constitute notice):
Xxxxxxx Xxxxxxx XXX
Xxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Facsimile No.: (000) 000-0000
Email Address: xxxxxx@xxxxxxxxxxxxxx.xxx
Attention: Xxxxxx X. Cable, Esq.
Xxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Facsimile No.: (000) 000-0000
Email Address: xxxxxx@xxxxxxxxxxxxxx.xxx
Attention: Xxxxxx X. Cable, Esq.
13
If to a Holder: To such address, facsimile number or electronic mail
address as shown in the Company’s records, or, until any such Holder
furnishes contact information, the to the address, facsimile number or
electronic mail address of the last holder of such shares for which the
Company has contact information in its records.
With a copy to (which copy does not constitute notice):
Xxxxxxx Xxxxxxx XXX
Xxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Facsimile No.: (000) 000-0000
Email Address: xxxxxx@xxxxxxxxxxxxxx.xxx
Attention: Xxxxxx X. Cable, Esq.
Xxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Facsimile No.: (000) 000-0000
Email Address: xxxxxx@xxxxxxxxxxxxxx.xxx
Attention: Xxxxxx X. Cable, Esq.
If to the Company:
0000 Xxxxxxxxxxxxx Xxxxxxx
Xxxxxxxxxx, XX 00000-0000
Attention: Xxxxxxx X. Xxxx
E-mail: xxxxx.xxxx@xxxxxxxx.xxx
Facsimile: (000) 000-0000
Xxxxxxxxxx, XX 00000-0000
Attention: Xxxxxxx X. Xxxx
E-mail: xxxxx.xxxx@xxxxxxxx.xxx
Facsimile: (000) 000-0000
With a copy to (which copy does not constitute notice):
0000 Xxxxxxxxxxxxx Xxxxxxx
Xxxxxxxxxx, XX 00000-0000
Attention: Xxxxxx Xxxxxxxxx, Chief Legal Officer
E-mail: xxxxxx.xxxxxxxxx@xxxxxxxx.xxx
Facsimile: (000) 000-0000
Xxxxxxxxxx, XX 00000-0000
Attention: Xxxxxx Xxxxxxxxx, Chief Legal Officer
E-mail: xxxxxx.xxxxxxxxx@xxxxxxxx.xxx
Facsimile: (000) 000-0000
(iii) A party may change its address set forth in Section 8(b)(ii) by giving notice pursuant
to this Section 8(b).
(c) Successors and Assigns. This Agreement will inure to the benefit of and be
binding upon the successors and assigns of the Company. This Agreement may not be assigned by any
Investor without the prior written consent of the Company; provided, however, that
any Investor shall be permitted to assign the rights under this Agreement without such consent to
any person to whom such Investor transfers Registrable Securities in accordance with
Section 8(b). Except as otherwise provided in this Section 8(c), any attempted assignment by
any Holder will be void and of no effect.
14
(d) Counterparts; Electronic Delivery. This Agreement may be executed and delivered by
facsimile or other electronic means and in any number of counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same instrument.
(e) Headings. The article and section headings contained in this Agreement are solely
for the purpose of reference, are not part of this Agreement and shall not in any way affect the
meaning or interpretation of this Agreement.
(f) Governing Law. This Agreement will be governed by and construed in accordance
with the laws of the State of Delaware, as applied to contracts made and performed within the State
of Delaware, without regard to principles of conflict of laws.
(g) Dispute Resolution.
(i) No party to this Agreement shall institute a proceeding in any court or administrative
agency to resolve a dispute between the parties arising out of or related to this Agreement before
that party has sought to resolve the dispute through direct negotiation with the other party.
(ii) If the dispute is not resolved within three (3) weeks after a demand for direct
negotiation, the parties shall attempt to resolve the dispute through mediation in New York, New
York, administered by the American Arbitration Association under its commercial mediation rules and
procedures then in effect.
(iii) If the mediator is unable to facilitate a settlement of the dispute within a reasonable
period of time, as determined by the mediator, the mediator shall issue a written statement to the
parties to that effect and the aggrieved party may then seek relief in the state and federal courts
located in New York, New York.
(iv) Each party consents to the exclusive personal and subject matter jurisdiction of the
mediation and arbitration proceedings as provided in this Section 8(g) and waives any defense based
upon forum non conveniens or lack of personal or subject matter jurisdiction.
(v) Notwithstanding any other provision of this Agreement, including this Section 8(g), each
party shall have the right to at any time apply to any court of competent jurisdiction for
preliminary injunctive relief.
(h) Severability. In the event that any provision in this Agreement shall be
determined to be invalid, illegal or unenforceable in any respect, the remaining provisions of this
Agreement shall not be in any way impaired, and the illegal, invalid or unenforceable provision
shall be fully severed from this Agreement and there shall be automatically added a replacement
provision as similar in terms and intent to such severed provision as may be legal, valid and
enforceable.
15
(i) Entire Agreement. This Agreement, together with the documents and instruments
delivered pursuant to this Agreement, constitute the entire contract between the parties to this
Agreement pertaining to the subject matter of this Agreement and supersede all prior and
contemporaneous agreements and understandings between the parties with respect to such subject
matter.
(j) Attorneys’ Fees. In any action or proceeding brought to enforce any provision of
this Agreement, or where any provision hereof is validly asserted as a defense, the prevailing
party, as determined by the court, will be entitled to recover reasonable attorneys’ fees in
addition to any other available remedy.
[Remainder of Page Left Intentionally Blank]
16
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written
above.
| REALPAGE, INC. |
||||
| By: | /s/ Xxxxxxx X. Xxxx | |||
| Name: | Xxxxxxx X. Xxxx | |||
| Title: | Chief Executive Officer | |||
| INVESTOR: IAS Holdings, LLC |
||||
| By: | L1 Holdings, Inc., its Manager | |||
| By: | /s/ Xxxx X. Xxxxxxx | |||
| Name: | Xxxx X. Xxxxxxx | |||
| Title: | President | |||
| INVESTOR: Level One, LLC |
||||
| By: | /s/ Xxxx X. Xxxxxxx | |||
| Name: | Xxxx X. Xxxxxxx | |||
| Title: | Manager | |||
| INVESTOR: L1 Technology, LLC |
||||
| By: | /s/ Xxxx X. Xxxxxxx | |||
| Name: | Xxxx X. Xxxxxxx | |||
| Title: | Manager | |||
[Signature Page to Registration Rights Agreement]
| INVESTOR: L1 Land, LLC |
||||
| By: | /s/ Xxxx X. Xxxxxxx | |||
| Name: | Xxxx X. Xxxxxxx | |||
| Title: | Manager | |||
| INVESTOR: L1 Holdings, Inc. |
||||
| By: | /s/ Xxxx X. Xxxxxxx | |||
| Name: | Xxxx X. Xxxxxxx | |||
| Title: | President | |||
| INVESTOR: |
||||
| /s/ Xxxx X. Xxxxxxx | ||||
| Xxxx X. Xxxxxxx | ||||
| INVESTOR: |
||||
| /s/ Xxxxxx X. Xxxx XX | ||||
| Xxxxxx X. Xxxx, XX | ||||
| INVESTOR: |
||||
| /s/ Xxxxxxxx Xxxxxxxx | ||||
| Xxxxxxxx Xxxxxxxx | ||||
[Signature Page to Registration Rights Agreement]
EXHIBIT A — INSTRUMENT OF ACCESSION FOR INVESTORS
INSTRUMENT OF ACCESSION
INSTRUMENT OF ACCESSION
The undersigned, , as a condition precedent to becoming the owner or holder
of record of ( ) shares of Common Stock of RealPage, Inc., a Delaware
corporation (the “Company”), hereby agrees to become an “Investor” under that
certain Registration Rights Agreement dated as of November 3, 2010 by and among the Company and
each of the other parties signatory thereto. This Instrument of Accession shall take effect and
shall become an integral part of, and the undersigned shall become a party to and bound by, said
Registration Rights Agreement immediately upon execution and delivery to the Company of this
Instrument.
IN WITNESS WHEREOF, this INSTRUMENT OF ACCESSION has been duly executed by or on behalf of the
undersigned, as a sealed instrument under the laws of the State of Delaware, as of the date below
written.
| Signature: | ||||||
| (Print Name) | ||||||
| Address: | ||||||
| Date: | ||||||
