As filed with the Securities and Exchange Commission
on February 22, 2024
Registration Statement No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
RE/MAX HOLDINGS, INC.
(Exact name of registrant as specified in its
charter)
| Delaware |
80-0937145 |
(State or other jurisdiction of
Incorporation or organization) |
(I.R.S. Employer
Identification No.) |
5075 South Syracuse Street
Denver, Colorado 80237
(303) 7770-5531
(Address, including zip code, of principal executive
offices)
Restricted Stock Unit Inducement Award Agreement
(Time-Vested)
Restricted Stock Unit Inducement Award Agreement
(Performance-Vested)
(Full title of the plan)
Erik Carlson
Chief Executive Officer
5075 South Syracuse Street
Denver, Colorado 80237
(303) 770-5531
(Name, address, including zip code, and telephone
number, including area code, of agent for service)
With Copies to:
Gavin B. Grover, Esq.
John M. Rafferty, Esq.
Morrison & Foerster LLP
425 Market Street
San Francisco, California 94105
(415) 268-7000
Indicate by check mark whether
the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company or an emerging
growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting
company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act:
| Large accelerated filer |
¨ |
Accelerated filer |
x |
| Non-accelerated filer |
¨ |
Smaller reporting company |
¨ |
| |
|
Emerging growth company |
¨ |
If an emerging growth company,
indicate by checkmark if the registrant has elected not to use the extended transition period for complying with any new or revised financial
accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ¨
EXPLANATORY NOTE
This Registration Statement
on Form S-8 registers shares of Class A common stock, par value $0.0001 per share (the “Common Stock”), of RE/MAX Holdings,
Inc., a Delaware corporation (the “Registrant”), issuable pursuant to the following inducement awards made to Erik Carlson
to induce Mr. Carlson to accept employment with the Registrant on November 13, 2023: (i) restricted stock units (“RSUs”)
covering 93,815 shares of Common Stock, which RSUs are scheduled to vest on November 13, 2024; (ii) RSUs covering 193,549 shares
of Common Stock, which RSUs are scheduled to vest in equal installments on March 1, 2025, March 1, 2026, and March 1, 2027; and (iii) RSUs
covering 580,648 shares of Common Stock (the “performance-vesting award”), which RSUs are subject to vesting based on the
price of the Common Stock during a performance period from the date of grant through December 31, 2027 (which number of shares represents
the maximum number of shares under such performance-vesting award). The inducement awards were approved by the Registrant’s Board
of Directors in compliance with and in reliance on New York Stock Exchange Rule 303A.08. The inducement awards were granted outside of
the Registrant’s 2023 Omnibus Incentive Plan.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The information specified
in Item 1 and Item 2 of Part I of this Registration Statement is omitted from this filing in accordance with the provisions
of Rule 428 under the Securities Act of 1933, as amended (the “Securities Act”), and the introductory note to Part I
of the Registration Statement on Form S-8. The documents containing the information specified in Part I will be delivered to
the person to whom the inducement awards have been granted as required by Rule 428(b)(1) under the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item
3. Incorporation of Documents by Reference.
The following documents,
which are on file with the United States Securities and Exchange Commission (the “Commission”), are incorporated herein by
reference:
All reports and other documents
subsequently filed by the Registrant with the Commission pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange
Act of 1934, as amended (the “Exchange Act”), after the date hereof, and prior to the filing of a post-effective amendment
that indicates that all securities offered hereby have been sold or which deregisters all securities then remaining unsold, shall be deemed
incorporated by reference into this Registration Statement and to be a part hereof from the date of the filing of such report or other
document. The Registrant is not, however, incorporating by reference any documents or portions thereof, whether specifically listed above
or filed in the future, that are not deemed “filed” with the Commission, including any information furnished pursuant to Item 2.02
or Item 7.01 of Form 8-K or related exhibits furnished pursuant to Item 9.01 of Form 8-K.
Any statement contained in
a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of
this Registration Statement to the extent that a statement contained herein or in any other subsequently filed document that also is or
is deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement.
Item
4. Description of Securities.
Not Applicable.
Item
5. Interests of Named Experts and Counsel.
Not Applicable.
Item
6. Indemnification of Directors and Officers.
Section 102(b)(7) of the
Delaware General Corporation Law (“DGCL”) provides that a corporation may, in its original certificate of incorporation or
an amendment thereto, eliminate or limit the personal liability of a director for violations of the director’s fiduciary duty, except
(1) for any breach of the director’s duty of loyalty to the corporation or its stockholders, (2) for acts or omissions not in good
faith or which involve intentional misconduct or a knowing violation of law, (3) pursuant to Section 174 of the DGCL, which provides for
liability of directors for unlawful payments of dividends or unlawful stock purchases or redemptions or (4) for any transaction from which
a director derived an improper personal benefit. The Amended and Restated Certificate of Incorporation of the Company (the “Certificate
of Incorporation”) provides for such limitation of liability.
Section 145 of the DGCL provides
that a corporation may indemnify any person, including an officer or director, who is, or is threatened to be made, party to any threatened,
pending or completed legal action, suit or proceeding, whether civil, criminal, administrative or investigative, other than an action
by or in the right of such corporation, by reason of the fact that such person was an officer, director, employee or agent of such corporation
or is or was serving at the request of such corporation as an officer, director, employee or agent of another corporation or enterprise.
The indemnity may include expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by such person in connection with such action, suit or proceeding, provided such officer, director, employee or agent acted in
good faith and in a manner he reasonably believed to be in, or not opposed to, the corporation’s best interest and, for criminal
proceedings, had no reasonable cause to believe that his conduct was unlawful. A Delaware corporation may indemnify any officer or director
in an action by or in the right of the corporation under the same conditions, except that no indemnification is permitted without judicial
approval if the officer or director is adjudged to be liable to the corporation. Where an officer or director is successful on the merits
or otherwise in the defense of any action referred to above, the corporation must indemnify him against the expenses that such officer
or director actually and reasonably incurred.
The Certificate of Incorporation
provides for the indemnification of directors to the fullest extent permissible under Delaware law.
The Bylaws of the Company
provide for the indemnification of officers and directors acting on the Company’s behalf if this person acted in good faith and
in a manner reasonably believed to be in and not opposed to the Company’s best interest, and, with respect to any criminal action
or proceeding, the indemnified party had no reason to believe his or her conduct was unlawful.
In addition, the Company
has entered into separate indemnification agreements with each of its executive officers and directors, a form of which has been filed
with the SEC. Such agreements may require the Company, among other things, to advance expenses and otherwise indemnify its executive officers
and directors against certain liabilities that may arise by reason of their status or service as executive officers or directors, to the
fullest extent permitted by law. The Company intends to enter into indemnification agreements with any new directors and executive officers
in the future.
The Company maintains insurance
on behalf of itself and any person who is or was a director or officer against any loss arising from any claim asserted against him or
her and incurred by him or her in that capacity, subject to certain exclusions and limits of the amount of coverage.
Item
7. Exemption from Registration Claimed.
Not Applicable.
Item
8. Exhibits.
| * |
Incorporated by reference to exhibits previously filed. |
Item
9. Undertakings.
(a)
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement:
| (i) | To include any prospectus required by Section 10(a)(3) of the Securities Act; |
| (ii) | To reflect in the prospectus any facts or events arising after the effective date of this Registration
Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change
in the information set forth in this Registration Statement. Notwithstanding the foregoing, any increase or decrease in volume of securities
offered (if the total dollar value of securities offered would not exceed that which
was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20% change
in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective Registration
Statement; and |
| (iii) | To include any material information with respect to the plan of distribution not previously disclosed
in this Registration Statement or any material change to such information in this Registration Statement. |
Provided,
however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the Registrant pursuant to Section 13
or Section 15(d) of the Exchange Act that are incorporated by reference in this Registration Statement.
(2)
That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(3)
To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at
the termination of the offering.
(b)
The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing
of the Registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable,
each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated
by reference in this Registration Statement shall be deemed to be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(c)
Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of
the Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In
the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or
paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted
by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the
opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question
whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication
of such issue.
SIGNATURES
Pursuant to the requirements
of the Securities Act of 1933, as amended, the Registrant certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Denver, State of Colorado, on February 22, 2024.
| |
RE/MAX HOLDINGS, INC. |
| |
|
| |
By: |
/s/ Karri R. Callahan |
| |
|
Karri R. Callahan |
| |
|
Chief Financial Officer |
| |
|
(Principal Financial Officer) |
POWER OF ATTORNEY
KNOW ALL PERSONS BY
THESE PRESENTS, that each person whose signature appears below constitutes and appoints Erik Carlson and Karri R. Callahan,
and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution,
for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including
post-effective amendments) to this Registration Statement on Form S-8, and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done
in connection therewith, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents or any of them, or his or her or their substitute or substitutes, may lawfully
do or cause to be done by virtue hereof. This Power of Attorney may be signed in several counterparts.
Pursuant to the requirements
of the Securities Act of 1933, as amended, this Registration Statement has been signed by the following persons in the capacities and
on the dates indicated.
| /s/ Erik Carlson |
|
Director and Chief Executive Officer |
|
February 22, 2024 |
| Erik Carlson |
|
(Principal Executive Officer) |
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| /s/ Karri R.
Callahan |
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Chief Financial Officer |
|
February 22, 2024 |
| Karri R. Callahan |
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(Principal Financial Officer) |
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| /s/ Leah R. Jenkins |
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Chief Accounting Officer |
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February 22, 2024 |
| Leah R. Jenkins |
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(Principal Accounting Officer) |
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| /s/ David L.
Liniger |
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Chairman and Co-Founder |
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February 22, 2024 |
| David L. Liniger |
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| /s/ Kathleen
J. Cunningham |
|
Director |
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February 22, 2024 |
| Kathleen J. Cunningham |
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| /s/ Roger J. Dow |
|
Director |
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February 22, 2024 |
| Roger J. Dow |
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| /s/ Norman K. Jenkins |
|
Director |
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February 22, 2024 |
| Norman K. Jenkins |
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| /s/ Stephen P. Joyce |
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Director |
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February 22, 2024 |
| Stephen P. Joyce |
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| /s/ Laura G.
Kelly |
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Director |
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February 22, 2024 |
| Laura G. Kelly |
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| /s/ Annita M.
Menogan |
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Director |
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February 22, 2024 |
| Annita M. Menogan |
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| /s/ Christine
M. Riordan |
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Director |
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February 22, 2024 |
| Christine M. Riordan |
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| /s/ Katherine
L. Scherping |
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Director |
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February 22, 2024 |
| Katherine L. Scherping |
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| /s/ Teresa S.
Van De Bogart |
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Director |
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February 22, 2024 |
| Teresa S. Van De Bogart |
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Exhibit 5.1
February 22, 2024
Board of Directors
RE/MAX Holdings, Inc.
5075 South Syracuse Street
Denver, Colorado 80237
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
We are acting as
counsel to RE/MAX Holdings, Inc., a Delaware corporation (the “Company”), in connection with its registration statement
on Form S-8 (the “Registration Statement”), filed with the Securities and Exchange Commission under the Securities
Act of 1933, as amended (the “Securities Act”), relating to the registration of 868,012 shares (the “Shares”)
of the Company’s Class A common stock, par value $0.0001 per share (“Common Stock”), issuable pursuant to restricted
stock units granted to Erik Carlson as inducement awards on November 13, 2023 (collectively, the “Inducement Award Agreements”).
As counsel for the
Company, we have examined originals or copies, certified or otherwise identified to our satisfaction, of such documents, corporate records,
certificates of public officials and other instruments as we have deemed necessary for the purposes of rendering this opinion and we are
familiar with the proceedings taken and proposed to be taken by the Company in connection with the authorization, issuance and sale of
the Shares. In our examination, we have assumed the genuineness of all signatures, the legal capacity and competency of all natural persons,
the authenticity of all documents submitted to us as originals and the conformity with the originals of all documents submitted to us
as copies. This opinion letter is given, and all statements herein are made, in the context of the
foregoing.
This opinion letter
is based as to matters of law solely on the Delaware General Corporation Law, as amended. We express no opinion herein as to any other
laws, statutes, ordinances, rules, or regulations. As used herein, the term “Delaware General Corporation Law, as amended”
includes the statutory provisions contained therein, all applicable provisions of the Delaware Constitution and reported judicial decisions
interpreting these laws.
Based upon, and
subject to and limited by the foregoing, we are of the opinion that following (i) effectiveness of the Registration Statement and
(ii) issuance and sale of the Shares in accordance with the terms set forth in the Inducement Award Agreements, the Shares will be
validly issued, fully paid and nonassessable.
This opinion letter
has been prepared for use in connection with the Registration Statement. We assume no obligation to advise you of any changes in the foregoing
subsequent to the effective date of the Registration Statement.
We consent to the
use of this opinion as an exhibit to the Registration Statement, and we consent to the reference of our name wherever appearing in the
Registration Statement and any amendments thereto. In giving such consent, we do not thereby admit that we are in the category of persons
whose consent is required under Section 7 of the Securities Act.
| Very truly yours, |
|
| |
|
| /s/ Morrison & Foerster LLP |
|
Exhibit 23.1
Consent of Independent Registered Public Accounting
Firm
We consent to the incorporation by reference in
the Registration Statement (Form S-8) of RE/MAX Holdings, Inc. for the registration of shares of Class A common stock issuable
pursuant to inducement awards made to Erik Carlson of our reports dated February 22, 2024, with respect to the consolidated financial
statements of RE/MAX Holdings, Inc. and the effectiveness of internal control over financial reporting of RE/MAX Holdings, Inc.
included in its Annual Report (Form 10-K) for the year ended December 31, 2023, filed with the Securities and Exchange Commission.
Denver, Colorado
February 22, 2024
Exhibit 23.2
Consent of Independent Registered Public Accounting
Firm
We consent to the use of our report dated February 28, 2023,
with respect to the consolidated financial statements of RE/MAX Holdings, Inc., incorporated herein by reference.
Denver, Colorado
February 22, 2024
Exhibit
107
Calculation of Filing Fee Tables
FORM S-8
(Form Type)
RE/MAX Holdings, Inc.
(Exact Name of Registrant as Specified in its Charter)
Table 1: Newly Registered Securities
Security
Type |
Security Class
Title |
Fee Calculation
Rule |
Amount
Registered(1) |
Proposed
Maximum
Offering Price
Per Unit(3) |
Maximum Aggregate Offering
Price |
Fee Rate |
Amount of
Registration Fee |
| Equity |
Class A Common Stock |
Rule 457(c) and Rule 457(h) |
868,012(2) |
$9.32 |
$8,089,871.84 |
0.00014760 |
$1,194.07 |
| Total Offering Amounts |
$8,089,871.84 |
|
$1,194.07 |
| Total Fee Offsets |
|
|
$1,194.07 |
| Net Fee Due |
|
|
$0.00(5) |
Table 2: Fee Offset Claims and Sources
| |
Registrant
or
Filer Name |
Form or
Filing
Type |
File
Number |
Initial
Filing
Date |
Filing
Date |
Fee
Offset
Claimed |
Security
Type
Associated
with Fee
Offset
Claimed |
Security
Title
Associated
with Fee
Offset
Claimed |
Unsold
Securities
Associated
with Fee
Offset
Claimed |
Unsold
Aggregate
Offering
Amount
Associated
with Fee
Offset
Claimed |
Fee Paid
with
Fee Offset
Source |
| Rule 457(p) |
| Fee Offset Claims |
RE/MAX Holdings, Inc. |
S-3 |
333- 234187 |
October 15, 2019 |
|
$1,194.07 |
Unallocated (Universal) Shelf |
Unallocated (Universal) Shelf |
(4) |
$400,000,000 |
|
| Fee Offset Sources |
RE/MAX Holdings, Inc. |
S-3 |
333- 234187 |
|
October 15, 2019 |
|
|
|
|
|
$1,194.07 |
| (1) | Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the “Securities
Act”), this Registration Statement shall also cover any additional shares of Class A common stock, $0.0001 par value per share (“Class A
Common Stock”), of RE/MAX Holdings, Inc., a Delaware corporation (the “Registrant”), that become issuable by reason
of any of stock dividend, stock split, recapitalization or other similar transaction effected without receipt of consideration that increases
the number of the Registrant’s outstanding shares of Class A Common Stock. |
| (2) | Represents shares of Class A Common Stock issuable upon the vesting restricted stock units (“RSUs”)
granted to the Chief Executive Officer of the Registrant, effective as of November 13, 2023, as an employment inducement award under Section 303A.08
of the NYSE Listed Company Manual. |
| (3) | The proposed maximum offering price per share has been estimated in accordance with Rule 457(c) and
Rule (h) under the Securities Act solely for the purpose of calculating the registration fee. The computation is based upon the average
of the high and low sales prices of shares of Class A Common Stock as reported on the New York Stock Exchange on February 20, 2024, because
the price at which the securities to be granted in the future may be exercised is not currently determinable. |
| (4) | The Registrant previously registered the offering of $400,000,000 of securities under a Registration Statement
on Form S-3 filed with the Securities and Exchange Commission (the “SEC”) on October 15, 2019 (File No. 333-234187)
(the “Prior Registration Statement on Form S-3”), which was declared effective on December 30, 2019 and expired
on December 30, 2022. Of the $400,000,000 of securities registered on the Prior Registration Statement, for which a contemporaneous
fee payment of $51,920.00 was paid, all $400,000,000 of the securities remained unsold when the Prior Registration
Statement expired, leaving $51,920.00 in previously paid fees available for future offset. Subsequently, the Registrant registered
the offering of $350,000,000 of securities under a Registration Statement on Form S-3 filed with the SEC on February 28, 2023
(File No. 333-270127) (the “2023 Registration Statement on Form S-3”), claiming a fee offset of $38,570.00
pursuant to Rule 457(p) under the Securities Act, leaving $13,350.00 in previously paid fees available for future offset. Thereafter,
the Registrant registered the offering of $53,803,516.14 of securities under a Registration Statement on Form S-8 filed with the
SEC on May 26, 2023 (File No. 333-272219) (the “2023 Registration Statement on Form S-8”), claiming a fee offset
of $5,929.15 pursuant to Rule 457(p) under the Securities Act, leaving $7,420.85 in previously paid fees available for future offset.
Pursuant to Rule 457(p) under the Securities Act, the registration fee applicable to the offering of $8,089,871.84 of securities
being registered hereby in the amount of $1,194.07 is offset by $1,194.07 in registration fees previously paid by the Registrant with
respect to securities that were not issued pursuant to the Prior Registration Statement and not claimed for offset in connection with
the 2023 Registration Statement on Form S-3 or the 2023 Registration Statement on Form S-8. Accordingly, no additional registration
fees are due to be paid at this time. |
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