Securities Registration: Employee Benefit Plan (s-8)
01 Octobre 2013 - 11:21PM
Edgar (US Regulatory)
As filed with the Securities and Exchange Commission on October 1, 2013
Registration 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)
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Delaware
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6531
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80-0937145
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(State or other jurisdiction of
incorporation or organization)
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(Primary Standard Industrial
Classification Code Number)
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(I.R.S. Employer
Identification Number)
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5075 South Syracuse Street
Denver, Colorado 80237
(303) 770-5531
(Address,
including zip code, and telephone number, including area code, of registrants principal executive offices)
RE/MAX
Holdings, Inc. 2013 Omnibus Incentive Plan
(Full title of the Plan)
Geoffrey D. Lewis
Executive Vice President and Chief Legal and Compliance 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)
Copies to:
Gavin B. Grover, Esq.
David B. Strong, Esq.
John M. Rafferty, Esq.
Morrison & Foerster LLP
425 Market Street
San
Francisco, CA 94105
Tel: (415) 268-7000
Fax: (415) 268-7522
Indicate by check mark whether
the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of large accelerated filer, accelerated filer and smaller reporting
company in Rule 12b-2 of the Exchange Act. (Check one):
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Large accelerated filer
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¨
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Accelerated filer
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¨
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Non-accelerated filer
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x
(Do not check if a smaller reporting company)
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Smaller reporting company
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¨
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CALCULATION OF REGISTRATION FEE
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Title of Securities
to be Registered
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Amount
to be
Registered (1)
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Proposed
Maximum
Offering
Price
Per Share
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Proposed
Maximum
Aggregate
Offering Price
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Amount of
Registration Fee
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Class A common stock, $0.0001 par value per share:
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RE/MAX Holdings, Inc. 2013 Omnibus Incentive Plan
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2,365,793(2)
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$22.00(3)
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$52,047,446
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$6,703.72
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(1)
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Pursuant to Rule 416(a) of the Securities Act of 1933, as amended, this Registration Statement shall also cover any additional shares of the Registrants Class A common stock that become issuable under the
2013 Omnibus Incentive Plan (the Plan) by reason of any stock dividend, stock split, recapitalization or other similar transaction effected without receipt of consideration that increases the number of the Registrants outstanding
shares of Class A common stock.
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(2)
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Shares of Class A common stock reserved for issuance under the Plan.
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(3)
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Estimated in accordance with Rule 457(h) solely for the purpose of calculating the registration fee on the basis of $22.00, the initial public offering price of the Registrants Class A common stock.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The information required by Part I is not filed as part of this Registration Statement in accordance with Rule 428 under the Securities Act of
1933, as amended (the Securities Act), and the Note to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE
REGISTRATION STATEMENT
Item 3.
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Incorporation of Documents by Reference.
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RE/MAX Holdings, Inc. (the
Registrant) hereby incorporates by reference into this Registration Statement the following documents previously filed with the Securities and Exchange Commission:
(1) The Registrants Preliminary Prospectus filed with the Commission on September 19, 2013, pursuant to Rule 430 under the
Securities Act of 1933, as amended (the Securities Act), relating to the Registration Statement on Form S-1, as amended (File No. 333-190699), which contains the Registrants audited financial statements for the latest
fiscal year for which such statements have been filed; and
(2) The description of the Registrants Class A common stock
contained in the Registrants Registration Statement on Form 8-A (File No. 001-36101) filed with the Commission on September 30, 2013, pursuant to Section 12(b) of the Securities Exchange Act of 1934, as amended (the
Exchange Act), including any amendment or report filed for the purpose of updating such description.
All documents filed by
the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act on or after the date of this Registration Statement and prior to the filing of a post-effective amendment to this Registration Statement that indicates that all
securities offered have been sold or that deregisters all securities then remaining unsold shall be deemed to be incorporated by reference in this Registration Statement and to be part hereof from the date of filing of such documents;
provided
,
however
, that documents or information deemed to have been furnished and not filed in accordance with the rules of the Commission shall not be deemed incorporated by reference into this Registration Statement. 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 subsequently
filed document which also 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.
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Description of Securities.
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Not applicable.
Item 5.
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Interests of Named Experts and Counsel.
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Not applicable.
Item 6.
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Indemnification of Directors and Officers.
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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
II-1
personal liability of a director for violations of the directors fiduciary duty, except (1) for any breach of the directors 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. Our 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 corporations 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.
Our certificate of incorporation as it will be in effect upon the completion of this offering provides for the indemnification of directors to
the fullest extent permissible under Delaware law.
Our bylaws as will be in effect upon the completion of this offering provide for the
indemnification of officers and directors acting on our behalf if this person acted in good faith and in a manner reasonably believed to be in and not opposed to our 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, we have entered into separate indemnification
agreements with each of our executive officers and directors. Such agreements may require us, among other things, to advance expenses and otherwise indemnify our 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. We intend to enter into indemnification agreements with any new directors and executive officers in the future.
We intend to purchase and maintain insurance on behalf of us 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.
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Exemption from Registration Claimed.
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Not applicable.
II-2
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Exhibit
Number
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Exhibit Description
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Incorporated by Reference
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Form
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File No.
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Exhibit
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Filing Date
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4.1*
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Form of RE/MAX Holdings, Inc. Class A common stock certificate.
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S-1/A
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333-190699
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4.1
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September 27,
2013
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4.2
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2013 Omnibus Incentive Plan and related documents.
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5.1
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Opinion of Morrison & Foerster LLP.
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23.1
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Consent of KPMG LLP, Independent Registered Public Accounting Firm for RMCO, LLC.
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23.2
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Consent of KPMG LLP, Independent Auditors for RE/MAX/KEMCO Partnership.
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23.3
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Consent of KPMG LLP, Independent Registered Public Accounting Firm for RE/MAX Holdings, Inc.
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23.4
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Consent of Counsel (included in Exhibit 5.1).
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24.1
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Power of Attorney (see page II-5).
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Incorporated by reference to exhibits previously filed.
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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 of 1933;
(ii) To reflect in the prospectus any facts or events arising after the effective date of the 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 the 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 a 20 percent change in the maximum aggregate offering price set forth in the Calculation of Registration Fee table in the
effective registration statement;
(iii) To include any material information with respect to the plan of distribution not
previously disclosed in the registration statement or any material change to such information in the registration statement.
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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 periodic reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in this registration statement.
(2) That, for the
purpose of determining any liability under the Securities Act of 1933, 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 of 1933, each filing of the Registrants annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and,
where applicable, each filing of an employee benefit plans annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the 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 of 1933 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 Securities and Exchange Commission such indemnification is against public policy as expressed in the 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 of 1933 and will be governed by the final adjudication of such issue.
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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 the 1st day of
October, 2013.
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RE/MAX HOLDINGS, INC.
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By:
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/s/ Geoffrey D. Lewis
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Geoffrey D. Lewis
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Executive Vice President and
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Chief Legal and Compliance Officer
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POWER OF ATTORNEY
Know all men by these presents, that each person whose signature appears below hereby constitutes and appoints Margaret M. Kelly, David L.
Liniger and Geoffrey D. Lewis, and each of them, any of whom may act without joinder of the other, the individuals true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for the person and in his or
her name, place and stead, in any and all capacities, to sign this Registration Statement and any or all amendments, including post-effective amendments to the Registration Statement, including a prospectus or an amended prospectus therein and any
Registration Statement for the same offering that is to be effective upon filing pursuant to Rule 462(b) under the Securities Act, and all other documents in connection therewith to be filed 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 and about the premises, 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 as agents or any of them, or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement on Form S-8 has been signed by the
following persons in the capacities and on the dates indicated.
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Signature
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Title
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Date
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/s/ David L. Liniger
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Chairman of the Board and Co-Founder
(Principal Executive Officer)
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October 1, 2013
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David L. Liniger
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/s/ Margaret M. Kelly
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Chief Executive Officer and Director
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October 1, 2013
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Margaret M. Kelly
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(Principal Executive Officer)
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/s/ David M. Metzger
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Chief Operating Officer and Chief Financial Officer
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October 1, 2013
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David M. Metzger
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(Principal Financial Officer and Principal Accounting Officer)
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/s/ Gail A. Liniger
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Vice Chair of the Board and Co-Founder
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October 1, 2013
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Gail A. Liniger
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/s/ Vincent J. Tracey
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President and Director
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October 1, 2013
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Vincent J. Tracey
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/s/ Gilbert Baird III
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Director
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October 1, 2013
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Gilbert Baird III
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/s/ Scott M. Bell
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Director
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October 1, 2013
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Scott M. Bell
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/s/ Richard O. Covey
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Director
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October 1, 2013
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Richard O. Covey
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/s/ Kathleen J. Cunningham
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Director
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October 1, 2013
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Kathleen J. Cunningham
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/s/ Roger J. Dow
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Director
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October 1, 2013
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Roger J. Dow
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/s/ David L. Ferguson
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Director
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October 1, 2013
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David L. Ferguson
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/s/ Ronald E. Harrison
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Director
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October 1, 2013
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Ronald E. Harrison
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/s/ Daryl L. Jesperson
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Director
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October 1, 2013
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Daryl L. Jesperson
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/s/ Daniel J. Predovich
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Director
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October 1, 2013
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Daniel J. Predovich
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INDEX TO EXHIBITS
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Exhibit
Number
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Exhibit Description
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Incorporated by Reference
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Form
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File No.
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Exhibit
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Filing Date
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4.1*
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Form of RE/MAX Holdings, Inc. Class A common stock certificate.
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S-1/A
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333-190699
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4.1
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September 27,
2013
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4.2
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2013 Omnibus Incentive Plan and related documents.
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5.1
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Opinion of Morrison & Foerster LLP.
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23.1
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Consent of KPMG LLP, Independent Registered Public Accounting Firm for RMCO, LLC.
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23.2
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Consent of KPMG LLP, Independent Auditors for RE/MAX/KEMCO Partnership.
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23.3
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Consent of KPMG LLP, Independent Registered Public Accounting Firm for RE/MAX Holdings, Inc.
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23.4
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Consent of Counsel (included in Exhibit 5.1).
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24.1
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Power of Attorney (see page II-5).
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