REALPAGE, INC.
Exhibit 4.9
REALPAGE, INC.
2010 EQUITY INCENTIVE PLAN
Unless otherwise defined herein, the terms defined in the RealPage, Inc. 2010 Equity Incentive
Plan (the “Plan”) will have the same defined meanings in this Restricted Stock Award Agreement (the
“Award Agreement”).
| I. | NOTICE OF RESTRICTED STOCK GRANT | |
| Participant Name: | ||
| Address: |
You have been granted the right to receive an Award of Restricted Stock, subject to the terms
and conditions of the Plan and this Award Agreement, as follows:
| Grant Number | ||||||
| Date of Grant | ||||||
| Vesting Commencement Date | ||||||
| Total Number of Shares Granted | ||||||
Vesting Schedule:
Subject to any acceleration provisions contained in the Plan or set forth below, the
Restricted Stock will vest and the Company’s right to reacquire the Restricted Stock will lapse in
accordance with the following schedule:
[INSERT VESTING SCHEDULE]
By Participant’s signature and the signature of the representative of RealPage, Inc. (the
“Company”) below, Participant and the Company agree that this Award of Restricted Stock is granted
under and governed by the terms and conditions of the Plan and this Award Agreement, including the
Terms and Conditions of Restricted Stock Grant, attached hereto as Exhibit A, all of which
are made a part of this document. Participant has reviewed the Plan and this Award Agreement in
their entirety, has had an opportunity to obtain the advice of counsel prior to executing this
Award Agreement and fully understands all provisions of the Plan and Award Agreement. Participant
hereby agrees to accept as binding, conclusive and final all decisions or interpretations of the
Administrator upon any questions relating to the Plan and Award Agreement. Participant further
agrees to notify the Company upon any change in the residence address indicated above.
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PARTICIPANT:
|
REALPAGE, INC. | |
Signature
|
By | |
Print Name
|
Title |
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EXHIBIT A
TERMS AND CONDITIONS OF RESTRICTED STOCK GRANT
1. Grant of Restricted Stock. The Company hereby grants to the individual named in
the Notice of Grant attached as Part I of this Award Agreement (the “Participant”) under the Plan
for past services and as a separate incentive in connection with his or her services and not in
lieu of any salary or other compensation for his or her services, an Award of Shares of Restricted
Stock, subject to all of the terms and conditions in this Award Agreement and the Plan, which is
incorporated herein by reference. Subject to Section 19 of the Plan, in the event of a conflict
between the terms and conditions of the Plan and the terms and conditions of this Award Agreement,
the terms and conditions of the Plan will prevail.
2. Escrow of Shares.
(a) All Shares of Restricted Stock will, upon execution of this Award Agreement, be delivered
and deposited with an escrow holder designated by the Company (the “Escrow Holder”). The Shares of
Restricted Stock will be held by the Escrow Holder until such time as the Shares of Restricted
Stock vest or the date Participant ceases to be a Service Provider.
(b) The Escrow Holder will not be liable for any act it may do or omit to do with respect to
holding the Shares of Restricted Stock in escrow while acting in good faith and in the exercise of
its judgment.
(c) Upon Participant’s termination as a Service Provider for any reason, the Escrow Holder,
upon receipt of written notice of such termination, will take all steps necessary to accomplish the
transfer of the unvested Shares of Restricted Stock to the Company. Participant hereby appoints
the Escrow Holder with full power of substitution, as Participant’s true and lawful
attorney-in-fact with irrevocable power and authority in the name and on behalf of Participant to
take any action and execute all documents and instruments, including, without limitation, stock
powers which may be necessary to transfer the certificate or certificates evidencing such unvested
Shares of Restricted Stock to the Company upon such termination.
(d) The Escrow Holder will take all steps necessary to accomplish the transfer of Shares of
Restricted Stock to Participant after they vest following Participant’s request that the Escrow
Holder do so.
(e) Subject to the terms hereof, Participant will have all the rights of a stockholder with
respect to the Shares while they are held in escrow, including without limitation, the right to
vote the Shares and to receive any cash dividends declared thereon.
(f) In the event of any dividend or other distribution (whether in the form of cash, Shares,
other securities, or other property), recapitalization, stock split, reverse stock split,
reorganization, merger, consolidation, split-up, spin-off, combination, repurchase, or exchange of
Shares or other securities of the Company, or other change in the corporate structure of the
Company affecting the Shares, the Shares of Restricted Stock will be increased, reduced or
otherwise changed, and by virtue of any such change Participant will in his or her capacity as
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owner of unvested Shares of Restricted Stock be entitled to new or additional or different
shares of stock, cash or securities (other than rights or warrants to purchase securities); such
new or additional or different shares, cash or securities will thereupon be considered to be
unvested Shares of Restricted Stock and will be subject to all of the conditions and restrictions
which were applicable to the unvested Shares of Restricted Stock pursuant to this Award Agreement.
If Participant receives rights or warrants with respect to any unvested Shares of Restricted Stock,
such rights or warrants may be held or exercised by Participant, provided that until such exercise
any such rights or warrants and after such exercise any shares or other securities acquired by the
exercise of such rights or warrants will be considered to be unvested Shares of Restricted Stock
and will be subject to all of the conditions and restrictions which were applicable to the unvested
Shares of Restricted Stock pursuant to this Award Agreement. The Administrator in its absolute
discretion at any time may accelerate the vesting of all or any portion of such new or additional
shares of stock, cash or securities, rights or warrants to purchase securities or shares or other
securities acquired by the exercise of such rights or warrants.
(g) The Company may instruct the transfer agent for its Common Stock to place a legend on the
certificates representing the Restricted Stock or otherwise note its records as to the restrictions
on transfer set forth in this Award Agreement.
3. Vesting Schedule. Except as provided in Section 4 below and Section 14 of the
Plan, and subject to Section 5 below, the Shares of Restricted Stock awarded by this Award
Agreement will vest in accordance with the vesting provisions set forth in the Notice of Grant.
Shares of Restricted Stock scheduled to vest on a certain date or upon the occurrence of a certain
condition will not vest in Participant in accordance with any of the provisions of this Award
Agreement, unless Participant will have been continuously a Service Provider from the Date of Grant
until the date such vesting occurs.
4. Administrator Discretion. The Administrator, in its discretion, may accelerate the
vesting of the balance, or some lesser portion of the balance, of the unvested Restricted Stock at
any time, subject to the terms of the Plan. If so accelerated, such Restricted Stock will be
considered as having vested as of the date specified by the Administrator.
5. Forfeiture upon Termination of Status as a Service Provider. Notwithstanding any
contrary provision of this Award Agreement, the balance of the Shares of Restricted Stock that have
not vested at the time of Participant’s termination as a Service Provider for any reason will be
forfeited and automatically transferred to and reacquired by the Company at no cost to the Company
upon the date of such termination and Participant will have no further rights thereunder.
Participant will not be entitled to a refund of the price paid for the Shares of Restricted Stock,
if any, returned to the Company pursuant to this Section 5. Participant hereby appoints the Escrow
Agent with full power of substitution, as Participant’s true and lawful attorney-in-fact with
irrevocable power and authority in the name and on behalf of Participant to take any action and
execute all documents and instruments, including, without limitation, stock powers which may be
necessary to transfer the certificate or certificates evidencing such unvested Shares to the
Company upon such termination of service.
6. Death of Participant. Any distribution or delivery to be made to Participant under
this Award Agreement will, if Participant is then deceased, be made to Participant’s designated
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beneficiary, or if no beneficiary survives Participant, the administrator or executor of
Participant’s estate. Any such transferee must furnish the Company with (a) written notice of his
or her status as transferee, and (b) evidence satisfactory to the Company to establish the validity
of the transfer and compliance with any laws or regulations pertaining to said transfer.
7. Withholding of Taxes. Notwithstanding any contrary provision of this Award
Agreement, no certificate representing the Shares of Restricted Stock may be released from the
escrow established pursuant to Section 2, unless and until satisfactory arrangements (as determined
by the Administrator) will have been made by Participant with respect to the payment of income,
employment and other taxes which the Company determines must be withheld with respect to such
Shares, if any. The Administrator, in its sole discretion and pursuant to such procedures as it
may specify from time to time, may permit Participant to satisfy such tax withholding obligation,
in whole or in part (without limitation) by (a) paying cash, (b) electing to have the Company
withhold otherwise deliverable Shares having a Fair Market Value equal to the minimum amount
required to be withheld, (c) delivering to the Company already vested and owned Shares having a
Fair Market Value equal to the amount required to be withheld, or (d) selling a sufficient number
of such Shares otherwise deliverable to Participant through such means as the Company may determine
in its sole discretion (whether through a broker or otherwise) equal to the amount required to be
withheld. To the extent determined appropriate by the Company in its discretion, it will have the
right (but not the obligation) to satisfy any tax withholding obligations by reducing the number of
Shares otherwise deliverable to Participant. If Participant fails to make satisfactory
arrangements for the payment of any required tax withholding obligations hereunder at the time any
applicable Shares otherwise are scheduled to vest pursuant to Sections 3 or 4 (or Section 14 of the
Plan), Participant will permanently forfeit such Shares and the Shares will be returned to the
Company at no cost to the Company.
8. Rights as Stockholder. Neither Participant nor any person claiming under or
through Participant will have any of the rights or privileges of a stockholder of the Company in
respect of any Shares deliverable hereunder unless and until certificates representing such Shares
will have been issued, recorded on the records of the Company or its transfer agents or registrars,
and delivered to Participant or the Escrow Agent. Except as provided in Section 2, after such
issuance, recordation and delivery, Participant will have all the rights of a stockholder of the
Company with respect to voting such Shares and receipt of dividends and distributions on such
Shares.
9. No Guarantee of Continued Service. PARTICIPANT ACKNOWLEDGES AND AGREES THAT THE
VESTING OF THE SHARES OF RESTRICTED STOCK PURSUANT TO THE VESTING SCHEDULE HEREOF IS EARNED ONLY BY
CONTINUING AS A SERVICE PROVIDER AT THE WILL OF THE COMPANY (OR THE PARENT OR SUBSIDIARY EMPLOYING
OR RETAINING PARTICIPANT) AND NOT THROUGH THE ACT OF BEING HIRED, BEING GRANTED THIS RESTRICTED
STOCK OR ACQUIRING SHARES HEREUNDER. PARTICIPANT FURTHER ACKNOWLEDGES AND AGREES THAT THIS AWARD
AGREEMENT, THE TRANSACTIONS CONTEMPLATED HEREUNDER AND THE VESTING SCHEDULE SET FORTH HEREIN DO NOT
CONSTITUTE AN EXPRESS OR IMPLIED PROMISE OF CONTINUED ENGAGEMENT AS A SERVICE PROVIDER FOR THE
VESTING PERIOD, FOR ANY PERIOD, OR AT
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ALL, AND WILL NOT INTERFERE IN ANY WAY WITH PARTICIPANT’S RIGHT OR THE RIGHT OF THE COMPANY
(OR THE PARENT OR SUBSIDIARY EMPLOYING OR RETAINING PARTICIPANT) TO TERMINATE PARTICIPANT’S
RELATIONSHIP AS A SERVICE PROVIDER AT ANY TIME, WITH OR WITHOUT CAUSE.
10. Address for Notices. Any notice to be given to the Company under the terms of
this Award Agreement will be addressed to the Company, in care of its [TITLE] at RealPage, Inc.,
0000 Xxxxxxxxxxxxx Xxxxxxx, Xxxxxxxxxx, Xxxxx 00000, or at such other address as the Company may
hereafter designate in writing.
11. Grant is Not Transferable. Except to the limited extent provided in Section 6,
the unvested Shares subject to this grant and the rights and privileges conferred hereby will not
be transferred, assigned, pledged or hypothecated in any way (whether by operation of law or
otherwise) and will not be subject to sale under execution, attachment or similar process. Upon
any attempt to transfer, assign, pledge, hypothecate or otherwise dispose of any unvested Shares of
Restricted Stock subject to this grant, or any right or privilege conferred hereby, or upon any
attempted sale under any execution, attachment or similar process, this grant and the rights and
privileges conferred hereby immediately will become null and void.
12. Binding Agreement. Subject to the limitation on the transferability of this grant
contained herein, this Award Agreement will be binding upon and inure to the benefit of the heirs,
legatees, legal representatives, successors and assigns of the parties hereto.
13. Additional Conditions to Release from Escrow. The Company will not be required to
issue any certificate or certificates for Shares hereunder or release such Shares from the escrow
established pursuant to Section 2 prior to fulfillment of all the following conditions: (a) the
admission of such Shares to listing on all stock exchanges on which such class of stock is then
listed; (b) the completion of any registration or other qualification of such Shares under any
state or federal law or under the rulings or regulations of the Securities and Exchange Commission
or any other governmental regulatory body, which the Administrator will, in its absolute
discretion, deem necessary or advisable; (c) the obtaining of any approval or other clearance from
any state or federal governmental agency, which the Administrator will, in its absolute discretion,
determine to be necessary or advisable; and (d) the lapse of such reasonable period of time
following the date of grant of the Restricted Stock as the Administrator may establish from time to
time for reasons of administrative convenience.
14. Plan Governs. This Award Agreement is subject to all terms and provisions of the
Plan. In the event of a conflict between one or more provisions of this Award Agreement and one or
more provisions of the Plan, the provisions of the Plan will govern. Capitalized terms used and
not defined in this Award Agreement will have the meaning set forth in the Plan.
15. Administrator Authority. The Administrator will have the power to interpret the
Plan and this Award Agreement and to adopt such rules for the administration, interpretation and
application of the Plan as are consistent therewith and to interpret or revoke any such rules
(including, but not limited to, the determination of whether or not any Shares of Restricted Stock
have vested). All actions taken and all interpretations and determinations made by the
Administrator in good faith will be final and binding upon Participant, the Company and all other
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interested persons. No member of the Administrator will be personally liable for any action,
determination or interpretation made in good faith with respect to the Plan or this Award
Agreement.
16. Electronic Delivery. The Company may, in its sole discretion, decide to deliver
any documents related to the Shares of Restricted Stock awarded under the Plan or future Restricted
Stock that may be awarded under the Plan by electronic means or request Participant’s consent to
participate in the Plan by electronic means. Participant hereby consents to receive such documents
by electronic delivery and agrees to participate in the Plan through any on-line or electronic
system established and maintained by the Company or another third party designated by the Company.
17. Captions. Captions provided herein are for convenience only and are not to serve
as a basis for interpretation or construction of this Award Agreement.
18. Agreement Severable. In the event that any provision in this Award Agreement will
be held invalid or unenforceable, such provision will be severable from, and such invalidity or
unenforceability will not be construed to have any effect on, the remaining provisions of this
Award Agreement.
19. Modifications to the Agreement. This Award Agreement constitutes the entire
understanding of the parties on the subjects covered. Participant expressly warrants that he or
she is not accepting this Award Agreement in reliance on any promises, representations, or
inducements other than those contained herein. Modifications to this Award Agreement or the Plan
can be made only in an express written contract executed by a duly authorized officer of the
Company. Notwithstanding anything to the contrary in the Plan or this Award Agreement, the Company
reserves the right to revise this Award Agreement as it deems necessary or advisable, in its sole
discretion and without the consent of Participant, to comply with Section 409A of the Internal
Revenue Code of 1986, as amended (the “Code”) or to otherwise avoid imposition of any additional
tax or income recognition under Section 409A of the Code in connection to this Award of Restricted
Stock.
20. Amendment, Suspension or Termination of the Plan. By accepting this Award,
Participant expressly warrants that he or she has received an Award of Restricted Stock under the
Plan, and has received, read and understood a description of the Plan. Participant understands
that the Plan is discretionary in nature and may be amended, suspended or terminated by the Company
at any time.
21. Forfeiture Events. Participant acknowledges and agrees that, (a) if Participant’s
status as a Service Provider terminates for Cause (as defined herein), or (b) if Participant’s
status as a Service Provider terminates by reason of a Voluntary Termination (as defined herein)
and participant discloses any trade secret or confidential information of the Company under
circumstances injurious to the Company within one (1) year after the Voluntary Termination, as
determined by the Administrator, then, to the extent permitted by applicable law, (i) the
Participant will (A) immediately forfeit any right the Shares of Restricted Stock issued under this
Award Agreement, whether vested or unvested, and shall, within three (3) business days after
receiving a written demand therefor from the Company, return and surrender to the Company for
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cancellation all Shares of Restricted Stock of the Company received by the Participant
pursuant to this Award Agreement, and (B) immediately forfeit any right to, and shall, within three
(3) business days after receiving a written demand therefor from the Company, pay to the Company a
cash payment equal to the value of all proceeds received by Participant within six (6) months
before or after the date of the termination of Participant’s status as a Service Provider from the
sale of any Shares of the Restricted Stock originally acquired by Participant pursuant to this
Award of Restricted Stock.
For purposes of this provision, “Cause” shall mean (a) the unauthorized disclosure of any
trade secret or confidential information of the Company; (b) the commission of any act of
dishonesty, embezzlement or fraud; (c) the commission of any act of insubordination or willful
violation of law or any policy of the Company; or (d) conviction of a felony, which in the
determination of the Administrator, causes substantial injury and discredit to the Company.
For purposes of this provision, “Voluntary Termination” shall mean, (a) with respect to an
Employee, a termination of employment with the Company, or any Parent or Subsidiary, which is
initiated voluntarily by the Employee, as determined in the sole discretion of the Administrator;
provided, however, that a Voluntary Termination shall not include a termination of employment by
reason of death, Disability or retirement from active service at or after age sixty-five (65) or a
breach of any material obligation by the Company; (b) with respect to a Consultant, a cessation of
services for the Company, or any Parent or Subsidiary, which is initiated voluntarily by the
Consultant, as determined in the sole discretion of the Administrator; or (c) with respect to a
Director, a resignation or other cessation of service as a member of the Board initiated
voluntarily by the Director, as determined in the sole discretion of the Administrator.
22. Governing Law. This Award Agreement will be governed by the laws of the State of
Texas, without giving effect to the conflict of law principles thereof. For purposes of litigating
any dispute that arises under this Award of Restricted Stock or this Award Agreement, the parties
hereby submit to and consent to the jurisdiction of the State of
Texas, and agree that such
litigation will be conducted in the courts of Xxxxxx County, Texas, or the federal courts for the
United States for the Northern District of Texas, and no other courts, where this Award of
Restricted Stock is made and/or to be performed.
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