Form of Performance-Based Restricted Stock Unity Award
Exhibit 10.12
RE/MAX holdings, inc. 2013 omnibus incentive plan
NOTICE OF Restricted Stock Unit AWARD
Grantee’s Name:
You (the “Grantee”) have been granted an award of Restricted Stock Units (the “Award”), subject to the terms and conditions of this Notice of Restricted Stock Unit Award (the “Notice”), the RE/MAX Holdings, Inc. 2013 Omnibus Incentive Plan, as amended from time to time (the “Plan”) and the Restricted Stock Unit Agreement (the “Agreement”) attached hereto, as follows. Unless otherwise provided herein, the terms in this Notice shall have the same meaning as those defined in the Plan.
Award Number:
Date of Award: March 1, 2021
Target Number of Restricted Stock
Units Awarded (the “Target Award”)*:
Performance Period: [___]
*The actual number of Restricted Stock Units (the “Units”) that vest will range from 0% to [___]% of each Tranche (as defined below) of the Target Award, depending on the extent to which applicable vesting requirements are satisfied, as determined by the Administrator.
Performance Periods:
The Target Award shall be divided into three equal tranches (subject to rounding to the nearest full Unit) (each a “Tranche”), each of which shall correspond to a one-year Performance Period (each, a “Performance Period” and collectively, the “Performance Periods”). The performance period for the first Tranche is the calendar year in which the award is granted (the “First Performance Period”). The calendar year following the First Performance Period is the “Second Performance Period” and the calendar year following the Second Performance Period is the “Third Performance Period.”
Vesting Schedules:
Except as otherwise set forth below, subject to the Grantee’s Continuous Service through the day following the last day of the Third Performance Period (the “Vesting Date”), and the other limitations set forth in this Notice, the Agreement and the Plan, the Award will vest as set forth below.
Vesting of each Tranche will be based on Revenue achievement during the corresponding Performance Period.
Each Performance Period shall have a Threshold Revenue level, a Target Revenue level, and a Stretch Revenue level (collectively referred to as the “Performance Levels”), each of which shall be determined by the Administrator and communicated to the Grantee no later than March 31 of the applicable Performance Period. The percentage of each Tranche that vests for each Performance Period shall be determined by the Administrator following the end of the Performance Period, based on the table below. If, for any Performance Period, Revenue is between two Performance Levels, then the portion of the Target Award that vests for the Tranche corresponding to that Performance Period will be determined using linear interpolation. Following the end of each Performance Period, the award shall remain unvested subject to the Grantee’s Continuous Service through the Vesting Date.
If Revenue is: | Then, the % of the Revenue Target Award That Vests is:* |
Below Threshold Revenue | 0% |
equal to Threshold Revenue | [__]% |
equal to Target Revenue | [__]% |
equal to or greater than Stretch Revenue | [__]% |
For purposes of the vesting schedules, “Revenue” means, as determined by the Administrator, the Company’s revenue during the applicable Performance Period, determined in accordance with generally accepted accounting principles, as reported in the Company’s periodic filings with the Securities and Exchange Commission (including revenue from any acquisitions), plus (or minus) pro-forma adjustments for extraordinary events (such as fee waivers for unusual events such as natural disasters), as may be determined by the Administrator in good faith. In setting the Performance Levels of a Performance Period, expected revenue from acquisitions for the first nine months after closing shall not be taken into account. (The preceding sentence shall not apply to acquisitions that closed prior to December 31, 2020.) If an acquisition occurs before March 31 of any Performance Period but after the Performance Level for such Performance Period was determined by the Administrator, the Performance Level for that Performance Period shall be increased by the amount of expected revenue from the acquisition during the portion of the Performance Period that is more than nine months after the acquisition.
Notwithstanding anything to the contrary, in the event of a Corporate Transaction or a Change in Control prior to the Vesting Date in connection with which the Award is not assumed or converted into an equivalent award by the acquiring or successor entity (or a Parent thereof), then, to the extent the Award is then outstanding and unvested, subject to the Grantee’s Continuous Service through the date of such Corporate Transaction or Change in Control (the “Transaction Date”) each Tranche shall vest as follows:
(i) each Tranche corresponding to a Performance Period that is completed on or prior to the Transaction Date shall vest based on Revenue during the corresponding Performance Period;
(ii) If the Transaction Date occurs prior to the last day of a Performance Period, the Tranche corresponding to the Performance Period in which the Transaction Date falls shall vest based on the greater of (a) the amount that would vest based on revenue for that Performance Period through the end of the most recently completed calendar month ending on or prior to the Transaction Date, except that, for purposes of determining such vesting, the Performance Levels for that Performance Period shall each be multiplied by a fraction, the numerator of which shall be the total number of completed calendar months that have elapsed in the Performance Period through Transaction Date and the denominator of which shall be 12 and (b) the Target Revenue level; and
(iii) each Tranche corresponding to a Performance Period that has not begun as of the Transaction Date shall vest at the Target Revenue level.
Notwithstanding the foregoing, in the event of a Corporate Transaction or a Change in Control during the Performance Period in connection with which the Award is assumed or converted into an equivalent award by the acquiring or successor entity (or a Parent thereof), then, immediately prior to such assumption or conversion, the Award shall be modified such that the Award (i) covers a number of Units equal to the number of Units that would have vested pursuant to the immediately preceding paragraph had the Award not been assumed or converted into an equivalent award by the acquiring or successor entity (or a Parent thereof) in connection with such Corporate Transaction or Change in Control and (ii) vests as to 100% of such covered Units on the last day of the Third Performance Period, subject to the Grantee’s Continuous Service through such last day, provided that if, during the 24-month period
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following such Corporate Transaction, the Grantee’s Continuous Service is terminated by such entity (or an Affiliate thereof) without Cause or if the Grantee’s Continuous Service terminates due to death or Disability, the Award shall vest as to 100% of such covered Units on the day of such termination. For this purpose, “Cause” means, with respect to the termination by such entity (or an Affiliate thereof) of the Grantee’s Continuous Service, that such termination is for “Cause” as such term (or word of like import) is expressly defined in a then-effective written agreement between the Grantee and such entity (or an Affiliate thereof), or in the absence of such then-effective written agreement and definition, is based on, in the determination of the Administrator, the Grantee’s: (i) performance of any act or failure to perform any act in bad faith and to the detriment of such entity (or an Affiliate thereof); (ii) dishonesty, intentional misconduct or material breach of any agreement with such entity (or an Affiliate thereof); or (iii) commission of a crime involving dishonesty, breach of trust, or physical or emotional harm to any person.
In the event of the Grantee’s change in status from Employee to Consultant or Director, the determination of whether such change in status results in a termination of Continuous Service will be determined in accordance with Section 409A of the Code.
For purposes of this Notice and the Agreement, the term “vest” shall mean, with respect to any Units, that such Units are no longer subject to forfeiture to the Company.
Except as otherwise provided above, if the Grantee’s Continuous Service terminates for any reason on or before the last day of the Performance Period, other than due to death or Disability, the Units shall immediately be forfeited and deemed reconveyed to the Company and the Company shall thereafter be the legal and beneficial owner of such reconveyed Units and shall have all rights and interest in or related thereto without further action by the Grantee. If the Grantee’s Continuous Service terminates due to the Grantee’s death or Disability during the Performance Period and prior to a Corporate Transaction or Change in Control, (i) if Grantee’s Continuous Service terminates after the completion of one or more Performance Periods, the Tranche(s) corresponding to such Performance Period(s) shall vest on the date of termination based on Revenue during the corresponding Performance Period(s), (ii) if Grantee’s Continuous Service terminates during a Performance Period, the Tranche corresponding to such Performance Period shall vest on the date of termination based on Revenue through the end of the Company’s most recently completed calendar month ending on or prior to such termination, except that, for purposes of determining such vesting, the Performance Levels for that Performance Period shall each be multiplied by a fraction, the numerator of which shall be the total number of completed calendar months that have elapsed in the Performance Period through the date of such termination, and the denominator of which shall be 12, and (iii) any Tranche(s) of the Award corresponding to any Performance Period(s) that had not begun as of the date of termination shall be forfeited.
IN WITNESS WHEREOF, the Company and the Grantee have executed this Notice and agree that the Award is to be governed by the terms and conditions of this Notice, the Plan, and the Agreement.
RE/MAX Holdings, Inc.,
a Delaware corporation
By:
[Name]
[Title]
[Date]
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THE GRANTEE ACKNOWLEDGES AND AGREES THAT THE UNITS SHALL VEST, IF AT ALL, ONLY DURING THE PERIOD OF THE GRANTEE’S CONTINUOUS SERVICE OR AS OTHERWISE SPECIFICALLY PROVIDED HEREIN (NOT THROUGH THE ACT OF BEING HIRED, BEING GRANTED THIS AWARD OR ACQUIRING SHARES HEREUNDER). THE GRANTEE FURTHER ACKNOWLEDGES AND AGREES THAT NOTHING IN THIS NOTICE, THE AGREEMENT, NOR IN THE PLAN, SHALL CONFER UPON THE GRANTEE ANY RIGHT WITH RESPECT TO CONTINUATION OF THE GRANTEE’S CONTINUOUS SERVICE, NOR SHALL IT INTERFERE IN ANY WAY WITH THE GRANTEE’S RIGHT OR THE COMPANY’S RIGHT TO TERMINATE THE GRANTEE’S CONTINUOUS SERVICE AT ANY TIME, WITH OR WITHOUT CAUSE, AND WITH OR WITHOUT NOTICE. THE GRANTEE ACKNOWLEDGES THAT UNLESS THE GRANTEE HAS A WRITTEN EMPLOYMENT AGREEMENT WITH THE COMPANY TO THE CONTRARY, THE GRANTEE’S STATUS IS AT WILL.
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Grantee Acknowledges and Agrees:
The Grantee acknowledges receipt of a copy of the Plan and the Agreement and represents that he or she is familiar with the terms and provisions thereof, and hereby accepts the Award subject to all of the terms and provisions hereof and thereof. The Grantee has reviewed this Notice, the Agreement and the Plan in their entirety, has had an opportunity to obtain the advice of counsel prior to executing this Notice and fully understands all provisions of this Notice, the Agreement and the Plan. The Grantee further agrees and acknowledges that this Award is a non-elective arrangement pursuant to Section 409A of the Code.
The Grantee further acknowledges that, from time to time, the Company may be in a “blackout period” and/or subject to applicable federal securities laws that could subject the Grantee to liability for engaging in any transaction involving the sale of the Company’s Shares. The Grantee further acknowledges and agrees that, prior to the sale of any Shares acquired under this Award, it is the Grantee’s responsibility to determine whether or not such sale of Shares will subject the Grantee to liability under insider trading rules or other applicable federal securities laws.
The Grantee understands that the Award is subject to the Grantee’s consent to access this Notice, the Agreement, the Plan and the Plan prospectus (collectively, the “Plan Documents”) in electronic form on the Company’s intranet or the website of the Company’s designated brokerage firm, if applicable. By signing below (or providing an electronic signature by clicking below) and accepting the grant of the Award, the Grantee: (i) consents to access electronic copies (instead of receiving paper copies) of the Plan Documents via the Company’s intranet or the website of the Company’s designated brokerage firm, if applicable; (ii) represents that the Grantee has access to the Company’s intranet or the website of the Company’s designated brokerage firm, if applicable; (iii) acknowledges receipt of electronic copies, or that the Grantee is already in possession of paper copies, of the Plan Documents; and (iv) acknowledges that the Grantee is familiar with and accepts the Award subject to the terms and provisions of the Plan Documents.
If Grantee does not sign this grant within 90 days of the Award Date, the Award shall be deemed rejected by the Grantee and Grantee shall have no right to the Award or the Units.
The Company may, in its sole discretion, decide to deliver any Plan Documents by electronic means or request the Grantee’s consent to participate in the Plan by electronic means. The Grantee hereby consents to receive such documents by electronic delivery and agrees to participate in the Plan through an on-line or electronic system established and maintained by the Company or a third party designated by the Company.
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The Grantee hereby agrees that all questions of interpretation and administration relating to this Notice, the Plan and the Agreement shall be resolved by the Administrator in accordance with Section 8 of the Agreement. The Grantee further agrees to the venue and jurisdiction selection in accordance with Section 9 of the Agreement. The Grantee further agrees to notify the Company upon any change in his or her residence address indicated in this Notice.
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Exhibit 10.12
Name:
Award Number:
RE/MAX holdings, inc. 2013 omnibus incentive plan
RESTRICTED STOCK UNIT AGREEMENT
Notwithstanding the foregoing, the Company or a Related Entity also may satisfy any Tax Withholding Obligation by offsetting any amounts (including, but not limited to, salary, bonus and severance payments) payable to the Grantee by the Company and/or a Related Entity. Furthermore, in the event of any determination that the Company has failed to withhold a sum sufficient to pay all withholding taxes due in connection with the Award, the Grantee agrees to pay the Company the amount of such deficiency in cash within five (5) days after receiving a written demand from the Company to do so, whether or not the Grantee is an employee of the Company at that time.
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END OF AGREEMENT
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Exhibit 10.12
RE/MAX HOLDINGS, INC. 2013 OMNIBUS INCENTIVE PLAN
NOTICE OF Restricted Stock Unit AWARD
Grantee’s Name:
You (the “Grantee”) have been granted an award of Restricted Stock Units (the “Award”), subject to the terms and conditions of this Notice of Restricted Stock Unit Award (the “Notice”), the RE/MAX Holdings, Inc. 2013 Omnibus Incentive Plan, as amended from time to time (the “Plan”) and the Restricted Stock Unit Agreement (the “Agreement”) attached hereto, as follows. Unless otherwise provided herein, the terms in this Notice shall have the same meaning as those defined in the Plan.
Award Number:
Date of Award: March 1, 2021
Total Number of Restricted Stock Units Awarded (the “Units”):
Vesting Schedule:
Subject to the Grantee’s Continuous Service and other limitations set forth in this Notice, the Agreement and the Plan, the Units will “vest” in accordance with the following schedule (the “Vesting Schedule”):
One third (1/3) of the Award shall vest on each of March 1, 2022 and March 1, 2023, and the remainder of the Award shall vest on March 1, 2024 (subject to rounding at each vesting).
In the event of a Corporate Transaction or a Change in Control in connection with which the Award is not assumed or converted into an equivalent award by the acquiring or successor entity (or a Parent thereof), the Units, to the extent outstanding and unvested, shall automatically become fully vested immediately prior to the effective date of such Corporate Transaction or Change in Control.
In the event of a Corporate Transaction or a Change in Control in connection with which the Award is assumed or converted into an equivalent award by the acquiring or successor entity (or a Parent thereof), if the Grantee’s Continuous Service is terminated by such entity (or an Affiliate thereof) without Cause during the 24-month period following such Corporate Transaction or Change in Control, the assumed or converted award shall automatically become fully vested on the day of such termination. For this purpose, “Cause” means, with respect to the termination by such entity (or an Affiliate thereof) of the Grantee’s Continuous Service, that such termination is for “Cause” as such term (or word of like import) is expressly defined in a then-effective written agreement between the Grantee and such entity (or an Affiliate thereof), or in the absence of such then-effective written agreement and definition, is based on, in the determination of the Administrator, the Grantee’s: (i) performance of any act or failure to perform any act in bad faith and to the detriment of such entity (or an Affiliate thereof); (ii) dishonesty, intentional misconduct or material breach of any agreement with such entity (or an Affiliate thereof); or (iii) commission of a crime involving dishonesty, breach of trust, or physical or emotional harm to any person.
In the event of the Grantee’s change in status from Employee to Consultant or Director, the determination of whether such change in status results in a termination of Continuous Service will be determined in accordance with Section 409A of the Code.
For purposes of this Notice and the Agreement, the term “vest” shall mean, with respect to any Units, that such Units are no longer subject to forfeiture to the Company. If the Grantee would become vested in a fraction of a Unit, such Unit shall not vest until the Grantee becomes vested in the entire Unit.
Except as otherwise provided above, vesting shall cease upon the date the Grantee terminates Continuous Service for any reason, excluding death or Disability. In the event the Grantee terminates Continuous Service for any reason, excluding death or Disability, any unvested Units held by the Grantee immediately upon such termination of the Grantee’s Continuous Service shall be forfeited and deemed reconveyed to the Company and the Company shall thereafter be the legal and beneficial owner of such reconveyed Units and shall have all rights and interest in or related thereto without further action by the Grantee.
If the Grantee’s Continuous Service terminates due to the Grantee’s death or Disability, the Units that would have vested on the vesting date next following the date of such termination of Continuous Services shall immediately become vested as of the date of such termination of Continuous Service, and all remaining unvested Units shall be forfeited and deemed reconveyed to the Company and the Company shall thereafter be the legal and beneficial owner of such reconveyed Units and shall have all rights and interest in or related thereto without further action by the Grantee.
IN WITNESS WHEREOF, the Company and the Grantee have executed this Notice and agree that the Award is to be governed by the terms and conditions of this Notice, the Plan, and the Agreement.
RE/MAX Holdings, Inc.,
a Delaware corporation
By:
Susan Zimmerman
Senior Vice President
March 1, 2020
THE GRANTEE ACKNOWLEDGES AND AGREES THAT THE UNITS SHALL VEST, IF AT ALL, ONLY DURING THE PERIOD OF THE GRANTEE’S CONTINUOUS SERVICE OR AS OTHERWISE SPECIFICALLY PROVIDED HEREIN (NOT THROUGH THE ACT OF BEING HIRED, BEING GRANTED THIS AWARD OR ACQUIRING SHARES HEREUNDER). THE GRANTEE FURTHER ACKNOWLEDGES AND AGREES THAT NOTHING IN THIS NOTICE, THE AGREEMENT, NOR IN THE PLAN, SHALL CONFER UPON THE GRANTEE ANY RIGHT WITH RESPECT TO CONTINUATION OF THE GRANTEE’S CONTINUOUS SERVICE, NOR SHALL IT INTERFERE IN ANY WAY WITH THE GRANTEE’S RIGHT OR THE COMPANY’S RIGHT TO TERMINATE THE GRANTEE’S CONTINUOUS SERVICE AT ANY TIME, WITH OR WITHOUT CAUSE, AND WITH OR WITHOUT NOTICE. THE GRANTEE ACKNOWLEDGES THAT UNLESS THE GRANTEE HAS A WRITTEN EMPLOYMENT AGREEMENT WITH THE COMPANY TO THE CONTRARY, THE GRANTEE’S STATUS IS AT WILL.
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Grantee Acknowledges and Agrees:
The Grantee acknowledges receipt of a copy of the Plan and the Agreement and represents that he or she is familiar with the terms and provisions thereof, and hereby accepts the Award subject to all of the terms and provisions hereof and thereof. The Grantee has reviewed this Notice, the Agreement and the Plan in their entirety, has had an opportunity to obtain the advice of counsel prior to executing this Notice and fully understands all provisions of this Notice, the Agreement and the Plan. The Grantee further agrees and acknowledges that this Award is a non-elective arrangement pursuant to Section 409A of the Code.
The Grantee further acknowledges that, from time to time, the Company may be in a “blackout period” and/or subject to applicable federal securities laws that could subject the Grantee to liability for engaging in any transaction involving the sale of the Company’s Shares. The Grantee further acknowledges and agrees that, prior to the sale of any Shares acquired under this Award, it is the Grantee’s responsibility to determine whether or not such sale of Shares will subject the Grantee to liability under insider trading rules or other applicable federal securities laws.
The Grantee understands that the Award is subject to the Grantee’s consent to access this Notice, the Agreement, the Plan and the Plan prospectus (collectively, the “Plan Documents”) in electronic form on the Company’s intranet or the website of the Company’s designated brokerage firm, if applicable. By signing below (or providing an electronic signature by clicking below) and accepting the grant of the Award, the Grantee: (i) consents to access electronic copies (instead of receiving paper copies) of the Plan Documents via the Company’s intranet or the website of the Company’s designated brokerage firm, if applicable; (ii) represents that the Grantee has access to the Company’s intranet or the website of the Company’s designated brokerage firm, if applicable; (iii) acknowledges receipt of electronic copies, or that the Grantee is already in possession of paper copies, of the Plan Documents; and (iv) acknowledges that the Grantee is familiar with and accepts the Award subject to the terms and provisions of the Plan Documents.
If Grantee does not sign this grant within 90 days of the Award Date, the Award shall be deemed rejected by the Grantee and Grantee shall have no right to the Award or the Units.
The Company may, in its sole discretion, decide to deliver any Plan Documents by electronic means or request the Grantee’s consent to participate in the Plan by electronic means. The Grantee hereby consents to receive such documents by electronic delivery and agrees to participate in the Plan through an on-line or electronic system established and maintained by the Company or a third party designated by the Company.
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The Grantee hereby agrees that all questions of interpretation and administration relating to this Notice, the Plan and the Agreement shall be resolved by the Administrator in accordance with Section 8 of the Agreement. The Grantee further agrees to the venue and jurisdiction selection in accordance with Section 9 of the Agreement. The Grantee further agrees to notify the Company upon any change in his or her residence address indicated in this Notice.
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Exhibit 10.12
Name:
Award Number:
RE/MAX HOLDINGS, INC. 2013 OMNIBUS INCENTIVE PLAN
RESTRICTED STOCK UNIT AGREEMENT
Notwithstanding the foregoing, the Company or a Related Entity also may satisfy any Tax Withholding Obligation by offsetting any amounts (including, but not limited to, salary, bonus and severance payments) payable to the Grantee by the Company and/or a Related Entity. Furthermore, in the event of any determination that the Company has failed to withhold a sum sufficient to pay all withholding taxes due in connection with the Award, the Grantee agrees to pay the Company the amount of such deficiency in cash within five (5) days after receiving a written demand from the Company to do so, whether or not the Grantee is an employee of the Company at that time.
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END OF AGREEMENT
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