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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form 8-K
CURRENT REPORT
Pursuant to Section 13
or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event
reported): November 13, 2023
RE/MAX
Holdings, Inc.
(Exact
name of registrant as specified in its charter)
| Delaware |
|
001-36101 |
|
80-0937145 |
(State
or other jurisdiction of
incorporation
or organization) |
|
(Commission
File
Number) |
|
(IRS
Employer
Identification
No.) |
5075
South Syracuse Street
Denver,
Colorado 80237
(Address of principal executive offices, including
Zip code)
(303)
770-5531
(Registrant’s telephone number, including
area code)
Check the appropriate box below if the Form 8-K
filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
| ¨ | Written
communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
| | | |
| ¨ | Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| | | |
| ¨ | Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| | | |
| ¨ | Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities registered pursuant to Section 12(b) of the Act:
| Title of each class |
|
Trading Symbol(s) |
|
Name of Each Exchange on Which Registered |
| Class
A Common Stock $0.0001 par value per share |
|
RMAX |
|
New
York Stock Exchange |
Indicate by check mark whether the registrant is
an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2
of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company
¨
If
an emerging growth company, indicate by check mark 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 13(a) of the Exchange Act. ¨
Item 5.02 Departure of Directors or Certain
Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangement of Certain Officers.
Appointment of Chief Executive Officer
On November 7, 2023, the Board of Directors
of RE/MAX Holdings, Inc. (the “Company”) appointed Erik Carlson as the Company’s Chief Executive Officer, effective
November 13, 2023 (the “Start Date”). The Board of Directors also appointed Mr. Carlson to the Company’s Board
of Directors, effective as of the Start Date. Mr. Carlson will serve as a Class II director, with a term through the Company’s
2024 annual meeting of stockholders. Mr. Carlson was not appointed to any committees of the Board of Directors.
Mr. Carlson, age 53, previously served as
the President and Chief Executive Officer of DISH Network Corporation from 2017 through November 12, 2023. He continues to serve
on the Board of Directors of DISH Network Corporation, which he joined in December 2021.
On November 10, 2023, the Company entered
into an Executive Agreement with Mr. Carlson (the “Executive Agreement”). Pursuant to the Executive Agreement, Mr. Carlson
will receive an annual base salary of $825,000, a bonus for the remainder of 2023 equal to 100% of his annual base salary, pro-rated for
the portion of the year that he serves as Chief Executive Officer, and an annual target bonus of 125% of his base salary for subsequent
years. In the event that the Company terminates Mr. Carlson’s employment without Cause or Mr. Carlson terminates his employment
for Good Reason (as such terms are defined in the Executive Agreement), Mr. Carlson would be entitled to a pro-rated bonus based
on actual performance and salary continuation and benefits for 12 months if he was employed by the Company for less than two years and
salary continuation and benefits for 18 months if he was employed for two years or more. If Mr. Carlson’s employment is terminated
without Cause or by Mr. Carlson with Good Reason within two years following a Change in Control (as defined in the Executive Agreement),
in lieu of the compensation and benefits described in the preceding sentence, Mr. Carlson would be entitled to a lump sum equal to
two-and-one-half times the sum of his then current base salary and target annual bonus, and Mr. Carlson would be entitled to benefits
continuation for 30 months. Mr. Carlson will not receive any additional compensation for his service on the Company’s Board
of Directors.
In addition, pursuant to the inducement award
exception under New York Stock Exchange Rule 303A.08, to induce Mr. Carlson to accept employment with the Company, he will be
granted on the Start Date equity awards with a total intended value at grant of $5,500,000, which will consist of restricted stock units
(“RSUs”) that are scheduled to vest as follows:
| · | $1,000,000: time-based RSUs scheduled to vest one year after the Start Date. |
| · | $1,800,000: time-based RSUs scheduled to vest in equal installments on March 1, 2025, March 1,
2026, and March 1, 2027. |
| · | $2,700,000: performance-based RSUs that vest based on the price of the Company’s class A common
stock during the performance period that runs from the Start Date through December 31, 2027 (the “Performance Period”).
For the performance-based awards, the actual number of RSUs that vest will range from 0-200% of the target (for a potential maximum intended
value at grant of $5,400,000), based on the table below. |
60-Day VWAP Stock
Price Level | |
Percent of RSUs That Vest | |
| $20 | |
| 25 | % |
| $25 | |
| 50 | % |
| $30 | |
| 75 | % |
| $35 (Target level) | |
| 100 | % |
| $40 | |
| 125 | % |
| $45 | |
| 150 | % |
| $50 | |
| 175 | % |
| $55 | |
| 200 | % |
For purposes of meeting any stock price level
with respect to the performance-based RSUs, the “60-Day VWAP” means the volume-weighted average trading price per share of
the Company’s Class A common stock measured over any rolling 60 calendar day period (i.e., any 60 consecutive calendar days)
occurring after the date of the award and within the Performance Period. With respect to the performance-based RSUs, in the event of a
Change in Control (as defined in the Executive Agreement) during the Performance Period, then, subject to Mr. Carlson’s continuous
service to the Company through the date of such Change in Control, the unvested portion of the award shall vest as follows: if the price
per share of Class A common stock of the Company paid by an acquiror in connection with a Change of Control equals or exceeds a stock
price target level set forth in the table above with respect to any unvested portion of the award, then the award will vest at the percentage
for the applicable stock price target level immediately prior to the date of such Change in Control and the remainder of the unvested
award shall be forfeited. With respect to the time-based RSUs, in the event of a Change in Control in connection with which the award
is assumed or converted into an equivalent award by the acquiring entity, if Mr. Carlson’s continuous service with the Company
is terminated by such entity without Cause or by Mr. Carlson with Good Reason following such Change in Control, the assumed or converted
award shall automatically become fully vested on the date of such termination.
Mr. Carlson will be entitled to receive a
future equity award in 2025 based on a compensation analysis performed by a third-party compensation consultant in the aggregate value
of at least $4,500,000, subject to the Company’s standard governance approval process.
The foregoing summary of the Executive Agreement
and equity awards does not purport to be complete and is qualified in its entirety by reference to the Executive Agreement and equity
award forms, which are filed as Exhibits 10.1, 10.2, and 10.3 and are incorporated herein by reference.
There are no related party transactions between
Mr. Carlson and the Company as defined in Item 404(a) of Regulation S-K. There are no family relationships between Mr. Carlson
and any other director, executive officer, or person nominated or
chosen to be a director or executive officer of
the Company.
Departure of Chief Executive Officer
In connection with Mr. Carlson’s appointment
as Chief Executive Officer, Stephen Joyce, who has served as the Company’s Chief Executive Officer on an interim basis, resigned
as the Company’s Chief Executive Officer, effective November 13, 2023. Mr. Joyce continues to serve on the Company’s
Board of Directors.
Approval of Retention Agreements
On November 10, 2023, the Compensation Committee
of the Board (the “Committee”) approved Retention Agreements (the “Retention Agreements”), which provide for special
cash awards to certain of the Company’s Named Executive Officers: Nicholas R. Bailey, President and Chief Executive Officer of RE/MAX,
LLC; Karri R. Callahan, the Company’s Chief Financial Officer; Ward M. Morrison, President and Chief Executive Officer of Motto
Mortgage and wemlo; and Serene M. Smith, the Company’s Chief Operating Officer and Chief of Staff. The Committee approved the Retention
Agreements to encourage retention of the Company’s management team given the transition of the Company’s Chief Executive Officer
and amidst the highly competitive market for talent, both within the real estate and mortgage industries and, more generally, for seasoned
top leadership with the specific expertise possessed by these Named Executive Officers.
Under
the Retention Agreements, certain of the Company’s Named Executive Officers will be eligible for special cash bonus awards in the
following amounts: $478,931 for Mr. Bailey; $712,500 for Ms. Callahan; $430,363 for Mr. Morrison; and $391,230 for Ms. Smith.
These cash retention awards will be payable on the first anniversary of Mr. Carlson’s Start Date, other than Ms. Callahan’s
award, which will be payable on February 28, 2025, subject in each case to the grantee’s employment through the applicable
date. The awards also require the grantees to agree to certain restrictive covenants, including non-disparagement, and confidentiality
provisions. The foregoing description of the Retention Agreements does not purport to be complete and is qualified in its entirety by
reference to the form of Retention Agreement, which is filed hereto as Exhibit 10.4 and incorporated herein by reference.
Item 7.01. Regulation FD Disclosure.*
The Company issued a
press release announcing Mr. Carlson’s appointment on November 13, 2023. A copy of the press release is furnished as Exhibit 99.1
to this Current Report on Form 8-K.
Item 9.01. Financial Statements and Exhibits.*
Footnotes:
* The information contained in Items 7.01 and
9.01 and Exhibit 99.1 of this Current Report on Form 8-K is being “furnished” and shall not be deemed “filed”
for purpose of Section 18 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or otherwise subject
to the liabilities of that section, nor shall it be deemed incorporated by reference into any registration statement or other filings
of the Company under the Securities Act of 1933, as amended, or the Exchange Act, except as shall be set forth by specific reference in
such filing.
** Certain exhibits and schedules have been omitted
pursuant to Item 601(b)(2) of Regulation S-K. The Registrant hereby undertakes to furnish supplemental copies of any omitted exhibits
and schedules upon request by the SEC.
SIGNATURES
Pursuant to the requirements of the Securities
Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| |
RE/MAX HOLDINGS, INC. |
| |
|
|
| Date: November 13, 2023 |
By: |
/s/ Karri Callahan |
| |
|
Karri Callahan |
| |
|
Chief Financial Officer |
Exhibit 10.1
EXECUTIVE AGREEMENT
This Executive Agreement (“Agreement”)
is entered into November 9, 2023 (the “Effective Date”) by and between RE/MAX, LLC, a Delaware limited
liability company (the “Company”), RE/MAX Holdings, Inc. (“Holdings”) and W.
Erik Carlson (“Executive”). The Company, Holdings and Executive are collectively referred to herein as the “parties”.
WHEREAS, Executive
acknowledges and agrees that Executive is not currently employed by the Company, Executive has been provided this Agreement prior to accepting
an offer for employment, and Executive has received, under separate cover, a clear and conspicuous notice describing the restrictions
contained herein;
WHEREAS, the Company
desires to employ Executive and, in connection therewith, to compensate Executive for Executive’s personal services to the Company;
and
WHEREAS, Executive
wishes to be employed by the Company and provide personal services to the Company in return for certain compensation.
NOW THEREFORE, in consideration
of the mutual promises and covenants contained herein, the parties agree to the following:
1. EMPLOYMENT
BY THE COMPANY.
1.1 Position.
Subject to the terms set forth herein, the Company agrees to employ Executive in the position of Chief Executive Officer of Holdings (“CEO”),
and Executive hereby accepts such employment. Executive will report to the Board of Directors of Holdings (the “Board”).
Executive will perform such duties as are normally associated with Executive’s position or as reasonably assigned by the Board from
time to time. While Executive serves as CEO, Executive shall also serve as a Director of the Board, for no additional consideration. During
the term of Executive’s employment with the Company, and excluding periods of vacation, disability and sick or other lawful leave
to which Executive is entitled, Executive will devote Executive’s best efforts and substantially all of Executive’s business
time and attention to the business of the Company, Holdings, RMCO, LLC and their respective direct and indirect wholly-owned subsidiaries
(collectively, the Company, Holdings and their respective direct and indirect subsidiaries are referred to as the “Company
Group”). Executive owes the Company, Holdings and other members of the Company Group fiduciary duties (including (a) duties
of loyalty and disclosure and (b) such fiduciary duties applicable to officers of the Company Group), and the obligations described
in this Agreement are in addition to, and not in lieu of, the obligations Executive owes each member of the Company and Holdings under
statutory and common law. For the avoidance of doubt, franchisees and sub-franchisors of the Company Group, and their respective representatives,
agents and employees, are not within the “Company Group”, are not owed fiduciary duties under this Agreement or law, and are
not third-party beneficiaries of this Agreement, including pursuant to Section 26.
1.2 Employment
Commencement Date. Executive’s employment pursuant to this Agreement will commence on November 13, 2023, or such other
date as may be agreed to by the parties (the “Employment Commencement Date”). If Executive does not commence
employment with the Company prior to December 31, 2023, the Agreement will automatically become null and void.
1.3 Location.
Executive shall perform Executive’s duties under this Agreement principally out of the Company’s Denver, Colorado office.
Executive shall spend sufficient time on business travel to fulfill his duties and responsibilities as CEO of the Company.
1.4 Company
Policies. The employment relationship between the parties shall also be subject to the Company’s personnel policies and procedures
as they may be interpreted, adopted, revised or deleted from time to time in the Company’s sole discretion, including but not limited
to codes of ethics and conduct, insider trading policies, and clawback policies. Notwithstanding the foregoing, in the event of a conflict
between an express term or condition of this Agreement and such policies and procedures this Agreement shall control.
2. COMPENSATION.
2.1 Base
Salary. While employed by the Company, the Company shall pay to Executive a base salary of $825,000 per year (the “Base
Salary”) in consideration for Executive’s services under this Agreement, payable in substantially equal installments
in conformity with the Company’s customary payroll practices for similarly situated employees as may exist from time to time.
2.2 Bonus.
While employed by the Company, Executive shall be eligible to earn an annual bonus (the “Annual Bonus”), which
will be paid approximately half in cash and approximately half in immediately vested Holdings common stock. Executive’s target opportunity
for the Annual Bonus shall be equal to one hundred twenty-five percent (125%) of the Base Salary (the “Target Annual Bonus”),
with a maximum target opportunity of two hundred percent (200%) of the Base Salary, based on the Company’s and Executive’s
achievement of performance goals, as reasonably established by the Compensation Committee of the Board (the “Compensation
Committee”) each year in its sole discretion. The Board or the Compensation Committee will determine in its sole discretion
the extent to which the performance goals have been achieved. The annual period over which performance is measured for purposes of this
Section 2.2 is January 1 through December 31. The Annual Bonus, if earned, will be paid no later than March 15
of the year following the calendar year to which the Annual Bonus relates and shall be subject to applicable deductions and withholdings.
In order to be eligible to earn an Annual Bonus, except as provided otherwise in Sections 6.4 and 6.5, Employee must be employed
by the Company through the date any Annual Bonus is paid. For the 2023 year, subject to Executive’s continued employment through
the applicable payment date of the 2023 Annual Bonus (except as provided otherwise in Sections 6.4 and 6.5), Executive shall receive
a prorated Annual Bonus at a level equal to one hundred percent (100%) of the Base Salary (calculated by multiplying the Base Salary by
a fraction, the numerator of which is equal to the number of days from and including the Employment Commencement Date through December 31,
2023, and the denominator of which is 365), which will be paid no later than March 15, 2024, subject to applicable deductions and
withholdings.
2.3 Equity
Awards.
(a) Sign-On
Inducement Award. Executive shall be granted a restricted stock unit award with the number of restricted stock units calculated by
dividing one million dollars ($1,000,000) by the average of the closing price of a share of Holdings class A common stock on each of the
fifteen (15) NYSE trading days prior to the date that Executive’s employment is first publicly announced by the Company or by Holdings
(the “Sign-On Inducement Award”). The Sign-On Inducement Award will be granted as an inducement award under
NYSE listing standard 303A.08, and will be subject to the terms of the RE/MAX Holdings, Inc. 2023 Omnibus Incentive Plan (as amended
from time to time, the “Plan”), an award agreement in a form approved by the Board and/or the Compensation Committee
and reflecting the terms described herein, and this Agreement. The Sign-On Inducement Award will vest on the 1st anniversary
of the Employment Commencement Date, subject (except as set forth in the Plan, the award agreement and this Agreement) to Executive’s
Continuous Service (as that term is defined in the Plan) through such date.
(b) Additional
Inducement Award. Executive shall be granted an additional restricted stock unit award with an aggregate value (as determined below)
of $4,500,000 (the “Additional Inducement Award”), with 40% of the Additional Inducement Award vesting in equal
amounts on each of March 1, 2025, 2026, and 2027, based solely on Executive’s Continuous Service (as that term is defined in
the Plan) and 60% of the Additional Inducement Award eligible for vesting over a measurement period between the date of grant and December 31,
2027, based upon Executive’s Continuous Service, the achievement of stock price performance metrics, and other terms as set forth
in Exhibit A to this Agreement. The number of restricted stock units subject to the time-based portion of the Additional Inducement
Award will be determined by dividing $1,800,000 by the closing price of a share of Holding’s common stock on the last Business Day
prior to the Employment Commencement Date and the “target” number of restricted stock units subject to the performance-based
portion of the Additional Inducement Award will be determined by dividing $2,700,000 by the closing price of a share of Holding’s
common stock on the last Business Day before the Employment Commencement Date. The Additional Inducement Award will be granted as an inducement
award under NYSE listing standard 303A.08 and will be subject to the terms and conditions of the Plan, an award agreement in a form approved
by the Board and/or the Compensation Committee and reflecting the terms described herein, and this Agreement.
(c) Future
Annual Equity Awards. Subject to the Company’s standard governance approval process, while employed by the Company, Executive
will be entitled to receive a future equity award in 2025 based on a compensation analysis performed by a third-party compensation consultant
in the aggregate value of at least $4,500,000. Beginning in 2026, Executive will be eligible to receive future equity awards as part of
the Company’s annual grant process, with vesting and other terms as determined by the Compensation Committee consistent with
those applicable to equity incentive grants awarded to other executive officers of the Company. While award types, vesting terms and weighting
between time-based and performance-based vesting will be subject to Compensation Committee discretion, it is initially anticipated that
future annual equity awards would be 40% time based, with vesting over a three- or four-year period in equal amounts on the annual grant
date anniversaries, and 60% performance based, with vesting over a period of three or four calendar years.
2.4 Vacation
and Standard Company Benefits. Executive shall receive other paid time-off in accordance with the Company’s policies for executive
officers as such policies may exist from time to time. While employed by the Company, Executive shall be eligible to participate in the
same benefit plans and programs in which other similarly situated Company employees are eligible to participate, subject to the terms
and conditions of the applicable plans and programs in effect from time to time; provided, however, that Executive will not be eligible
to participate in Holding’s change in control or other severance plans or policies or otherwise receive severance payments or benefits
other than pursuant to this Agreement. Subject to the prior sentence, all matters of eligibility for coverage or benefits under any benefit
plan shall be determined in accordance with the provisions of such plan. The Company Group reserves the right to change, alter, or terminate
any benefit plan in its sole discretion. Notwithstanding the foregoing, in the event that the terms of this Agreement differ from or are
in conflict with the Company’s general employment policies or practices, this Agreement shall control.
2.5 Expenses
for Negotiation of Agreement. The Company shall reimburse Executive for all reasonable attorneys’ fees incurred in connection
with the negotiation and execution of this Agreement, up to a maximum of $20,000, which reimbursement shall be provided as soon as practicable
following the receipt by the Company of documentation from Executive detailing the amount of such fees (but in any event not later than
the close of Executive’s taxable year following the taxable year in which such fees are incurred by Executive).
3. BUSINESS
EXPENSES. Subject to Section 23, the Company shall reimburse Executive for Executive’s reasonable out-of-pocket
business-related expenses actually incurred in the performance of Executive’s duties under this Agreement in accordance with the
Company’s Reimbursement of Business Travel and Expenses Policy and The Executive Addendum thereto (but in any event not later than
the close of Executive’s taxable year following the taxable year in which the expense is incurred by Executive).
4. OUTSIDE
ACTIVITIES. Except with the prior written consent of the Board, Executive will not, while employed by the Company, undertake or
engage in any other employment, occupation or business enterprise, such as service on another company’s board. This restriction
shall not, however, preclude Executive from serving on the board of Denver Downtown Partnership and one additional for profit or non-profit
company’s board (provided pre-approval is given by the Board), or from owning a passive investment in less than two percent (2%)
of the total outstanding shares of a publicly traded company. Executive has listed all boards on which Executive currently serves on Schedule
1 (other than boards Executive will resign from prior to the Employment Commencement Date). Executive agrees to resign from any boards
Executive is serving on that could present a conflict of interest with the Company Group or as reasonably requested by the Board.
5. NO
CONFLICT WITH EXISTING OBLIGATIONS. Executive hereby represents and warrants that other than his restrictive covenants imposed
in his former employment with DISH Network Corporation (which do not prohibit or restrict his work as CEO of Holdings and do not restrict
his performance under this Agreement), Executive is not the subject of, or a party to, any employment agreement, non-competition, non-solicitation,
restrictive covenant, non-disclosure agreement, or any other agreement, obligation, restriction or understanding that would prohibit Executive
from executing this Agreement or fully performing each of Executive’s duties and responsibilities hereunder, or would in any manner,
directly or indirectly, limit or affect any of the duties and responsibilities that may now or in the future be assigned to Executive
hereunder. Executive expressly acknowledges and agrees that Executive is strictly prohibited from using or disclosing any confidential
information belonging to any prior employer in the course of performing services for any member of the Company Group, and Executive promises
that Executive shall not do so. Executive shall not introduce documents or other materials containing confidential information of any
such prior employer to the premises or property (including computers and computer systems) of the Company, Holdings, or any other member
of the Company Group. Executive shall not use any intellectual property of any prior employer or any other person or entity in any way
that infringes upon any intellectual property rights, misappropriates any third-party trade secrets, or violates any other rights.
6. TERMINATION
OF EMPLOYMENT. The parties acknowledge that Executive’s employment relationship with the Company is at-will. Either Executive
or the Company may terminate the employment relationship at any time, with or without Cause. The provisions in this Section govern
the amount of compensation, if any, to be provided to Executive upon termination of employment and do not alter this at-will status.
6.1 Termination
by the Company with Cause.
(a) The
Company shall have the right to terminate Executive’s employment with the Company at any time for Cause (as defined below). Notwithstanding
any of the language within Section 6, Cause under Sections 6.1 (b)(i), (ii), (iii), (vi) and/or (vii) shall
only arise if the Board gives Executive written notice (pursuant to this Agreement) describing in detail such Cause and Executive fails
to cure said Cause within thirty (30) days of receipt of the notice. If Executive’s employment hereunder is terminated by the Company
for Cause, then Executive shall be: (i) paid any previously earned but unpaid Base Salary through the date of termination, if any,
which shall be paid in conformity with the Company’s customary payroll practice, (ii) reimbursed for any business expenses
incurred by but not yet paid to Executive, pursuant to Section 3 above, (iii) entitled to any vested benefits under any
benefit plans and programs described in Section 2.4, above (except for equity), and (iv) paid or provided with any other
amounts or benefits, as required by applicable law, which shall be paid in the time period required by applicable law (the “Accrued
Obligations”). In the event Executive’s employment is terminated by the Company for Cause, all of Executive’s
unvested equity awards shall be immediately forfeited and canceled and Executive shall not receive the Severance Benefits, or any other
severance compensation or benefit, except that, pursuant to the Company’s standard payroll policies, the Company shall provide Executive
only the Accrued Obligations.
(b) For
purposes of this Agreement, “Cause” means the following on the part of Executive:
(i) Violation
of any of the material terms of any member of the Company Group’s written policies of which Executive has been advised in writing;
(ii) Material
breach of this Agreement or any other written Agreement between Executive and any member of the Company Group;
(iii) Obtaining
a material personal profit not thoroughly disclosed to and approved by the Board in connection with any transaction entered into by, or
on behalf of, or in relation to, any member of the Company Group;
(iv) The
commission of a felony or other crime involving moral turpitude which is reasonably likely to cause any member of the Company Group material
and lasting public disgrace or demonstrable economic harm;
(v) Fraud
or embezzlement against any member of the Company Group or theft or misappropriation of property belonging to any member of the Company
Group;
(vi) Breach
of a fiduciary duty against any member of the Company Group; or
(vii) Repeated
failure to obey lawful and reasonable instructions from the Board consistent with his position and this Agreement.
The Board may also place Executive on paid leave
for up to thirty (30) days while it is determining whether there is a basis to terminate Executive’s employment for Cause, should
the Board believe in good faith that there are grounds for termination of Executive’s employment for Cause. In such an instance,
the Board will be required to notify Executive in writing at the time of his suspension of the specific factual grounds that it believes
may support termination of his employment for Cause and allow Executive to respond to said allegations. Any such action by the Board will
not constitute Good Reason.
6.2 Resignation
by Executive. Executive shall have the right to terminate employment with the Company at any time and for any reason, or no reason
at all, upon providing thirty (30) days’ advance written notice to the Company; provided, however, that if Executive
has provided notice to the Company of Executive’s resignation of employment, the Board may determine, in its sole discretion, that
such resignation shall be effective on any date prior to the effective date of resignation provided in such notice (and, if such earlier
date is so required by the Board, then such earlier date shall not change the nature of Executive’s resignation of employment nor
be construed or interpreted as a termination of employment without Cause pursuant to Section 6.4). If Executive resigns Executive’s
employment with the Company as described in this Section 6.2 (other than for Good Reason pursuant to Section 6.4),
then Executive shall not receive the Severance Benefits, or any other severance compensation or benefit, except that, pursuant to the
Company’s standard payroll policies, the Company shall provide to Executive only the Accrued Obligations.
6.3 Termination
by Virtue of Death or Disability of Executive.
(a) In
the event of Executive’s death while employed pursuant to this Agreement, all obligations of the parties hereunder shall terminate
immediately, and Executive will not receive the Severance Benefits, or any other severance compensation or benefit, except that, the Company
shall, pursuant to the Company’s standard payroll policies, provide to Executive’s legal representatives Executive’s
Accrued Obligations. Notwithstanding the foregoing, treatment of any unvested equity awards shall be governed by the terms of the applicable
equity plans and award agreements.
(b) The
Company shall at all times have the right, upon written notice to Executive from the Board, to terminate Executive’s employment
due to Executive’s Disability (as defined below). Upon written notice to Executive of termination due to Disability, Executive’s
employment with the Company shall automatically (and without any further action by any person or entity) terminate. For purposes of this
Agreement, termination by the Company of Executive’s employment based on a “Disability” shall mean termination
because Executive is unable due to a physical or mental condition to perform the essential functions of his position with or without reasonable
accommodation for ninety (90) days consecutively or one hundred eighty (180) days in the aggregate during any twelve (12) month period
or the Board makes such determination (at its sole discretion) based on the written certification by two (2) licensed physicians
of the likely continuation of such condition for such periods. The determination of whether Executive has incurred a Disability shall
be interpreted and applied consistent with the Americans with Disabilities Act, the Family and Medical Leave Act, and other applicable
law. In the event Executive’s employment is terminated based on Executive’s Disability, Executive will not receive the Severance
Benefits, or any other severance compensation or benefit, except that, pursuant to the Company’s standard payroll policies, the
Company shall provide to Executive the Accrued Obligations. Notwithstanding the foregoing, treatment of any unvested equity awards shall
be governed by the terms of the applicable equity plans and award agreements.
6.4 Termination
by the Company without Cause or by Executive with Good Reason.
(a) The
Board (in its sole discretion) shall have the right to terminate Executive’s employment with the Company immediately without Cause
by providing Executive written notice of such termination. If Executive’s employment is terminated without Cause or Executive resigns
for Good Reason (defined in Section 6.4(c)), then Executive shall be paid the Accrued Obligations and, if Executive complies
with all of the obligations in Section 6.4(b) below and, in the case of resignation by the Executive with Good Reason,
Executive has served as the Company’s Chief Executive Officer for a minimum of one year, Executive shall also be eligible to receive
the following severance benefits in Sections 6.4(a)(i)-(iv) (the “Severance Benefits”). Notwithstanding
anything to the contrary, in the event Executive is entitled to Change in Control Severance Benefits under Section 6.5, Executive
shall not be entitled to Severance Benefits under this Section 6.4.
(i) The
Company will pay Executive an amount equal to (x) twelve (12) months if Executive was employed by the Company for less than two (2) years
and (y) eighteen (18) months if Executive was employed by the Company for two (2) years or more of Executive’s then current
Base Salary, less all applicable withholdings and deductions (“Severance”), to be paid in equal installments
over a period of the number of months of Base Salary Executive is receiving, in accordance with the Company’s regular payroll practices
beginning on the Company’s first regularly scheduled payroll date following the Release Effective Date (as defined in Section 6.4(b) of
this Agreement), with the first installment including any amount of the Severance that would otherwise have been due prior to the Release
Effective Date.
(ii) The
Company will pay Executive the prior year’s Annual Bonus if the termination occurs after such calendar year but prior to payment
of any Annual Bonus relating to such prior calendar year, provided such Annual Bonus would have otherwise been payable to Executive had
Executive remained employed by the Company, which will be paid to Executive less applicable deductions and withholdings when such prior
year Annual Bonuses are otherwise paid.
(iii) The
Company will pay Executive a pro-rata amount of the Annual Bonus relating to the year of termination that Executive would have received
had Executive remained employed through the date such Annual Bonus is paid, which payment shall be equal to (i) the Annual Bonus,
if any, that Executive would have earned for the calendar year in which Executive’s termination occurs based on achievement of the
applicable performance goals for the Annual Bonus; and (ii) a fraction, the numerator of which is the number of days Executive was
employed by the Company during the year of termination and the denominator of which is the number of days in such year (the “Pro-Rata
Bonus”). The Pro-Rata Bonus shall be paid on or around the date that the Annual Bonus is paid to other employes and shall
be subject to standard payroll deductions and withholdings.
(iv) During
the Benefit Continuation Period (as defined below), the Company will provide (or cause to be provided) continued participation by Executive
and his eligible dependents in the health, dental and vision benefit plans in which Executive participated immediately prior to the termination
on the same basis (and cost) as Grantee and his eligible dependents were participating immediately prior to the termination if possible
under the terms of such benefit plans; provided, that if the provision of such continued benefits is not possible under the terms of such
benefit plans or if the Company determines that the provision of such continued benefits would result in a violation of the nondiscrimination
rules of Section 105(h)(2) of the Internal Revenue Code of 1986 (the “Code”), or otherwise result
in adverse tax consequences or violate applicable law (including but not limited to the 2010 Patient Protection and Affordable Care Act,
as amended by the 2010 Health Care and Education Reconciliation Act), then, in lieu of providing the coverage described above, the Company
will instead pay fully taxable cash payments in substantially equal installments for the remaining Benefit Continuation Period in accordance
with the Company’s normal payroll schedule in an amount equal to the product of (A) the applicable premium for such health,
dental and/or vision benefit (less any amount Grantee would have paid as an active employee for such coverage) and (B) the number
of months in the Benefit Continuation Period. Benefit Continuation shall be provided concurrently with any health care benefit required
under COBRA. The “Benefit Continuation Period” shall be twelve (12) months if Executive was employed with the
Company for less two (2) years and shall be eighteen (18) months if Executive was employed by the Company for two (2) years
or more.
(b) Notwithstanding
anything to the contrary, Executive shall only be entitled to receive the Severance Benefits pursuant to Section 6.4(a) of
this Agreement if: (i) by the 60th day following the date of Executive’s termination of employment from the Company,
Executive has signed, returned to the Company and not revoked a general release of claims in favor of the Company and its affiliates and
representatives, in a form presented by the Company, a release which includes only language necessary to effectuate a global release of
claims (the “Release”); (ii) if Executive holds any other positions with the Company or any affiliate,
including a position on the Board, Executive resigns such position(s) to be effective no later than the date of Executive’s
termination date (or such other date as requested by the Board); and (iii) Executive complies with Executive’s post-termination
obligations under this Agreement.
(c) For
the purposes of Sections 6.4 and 6.5, “Good Reason” shall mean the occurrence of any of the following
events without Employee’s consent:
(i) material
breach by the Company of the material terms of this Agreement;
(ii) a
material reduction in Executive’s duties, authority, responsibilities, or title relative to Executive’s duties, authority,
responsibilities, and title in effect immediately prior to such reduction, provided, however, that the acquisition of Holdings
and subsequent conversion of Holdings to a division or unit of the acquiring company will not by itself result in a diminution of Executive’s
duties, authority, or responsibilities;
(iii) Executive’s
reporting structure changing to Executive no longer reporting directly to the Board;
(iv) a
reduction in Employee’s Base Salary or Target Annual Bonus of at least fifteen percent (15%), other than a general reduction in
base salary or target bonus opportunities that affects all senior executives of the Company in substantially the same proportions; or
(v) the
Company requires Executive to relocate to any office or location more than 30 miles from the Company’s current headquarters in Denver,
Colorado, provided that any request or directive from the Company to not work in such office pursuant to any stay-at-home or work
from home or similar law, order, directive, request or recommendation from a governmental entity shall not give rise to Good Reason under
this Agreement.
Notwithstanding the foregoing, Executive’s
resignation shall not constitute a resignation for “Good Reason” as a result of any event described above unless: (1) Executive
gives the Board written notice of Executive’s intent to resign for Good Reason within one hundred eighty (180) days following the
first occurrence of the condition(s) that Executive believes constitute(s) Good Reason, which notice shall describe such condition(s);
(2) the Company fails to remedy such condition(s) within thirty (30) days following receipt of such written notice (the “Cure
Period”); (3) the Company or the Board have not, prior to receiving such notice from Executive, already provided notice
to Executive that his employment with the Company is being terminated for Cause (and those grounds, if subsequently challenged, are determined
by the fact finder to meet the definition herein of “Cause”); and (4) Executive voluntarily resigns Executive’s
employment no later than five (5) days after the end of the Cure Period. For the avoidance of doubt, if Holdings ceases to be a publicly-traded
company, Executive will not have Good Reason due to any reduction in Executive’s duties, authority, responsibilities resulting directly
or indirectly from Holdings no longer being a publicly-traded company such as if Executive is reporting to an officer of the acquiring
company versus to the Board.
6.5 Termination
by the Company without Cause or Resignation by the Executive for Good Reason following a Change in Control.
(a) If
Executive’s employment hereunder is terminated by the Company without Cause (other than on account of Executive’s death or
Disability) or Executive resigns for Good Reason (defined in Section 6.4(c)), in each case within two (2) years immediately
following the date a Change in Control (as defined below) occurs, Executive shall be eligible to receive the Accrued Obligations and subject
to Executive’s timely and complete compliance with all requirements in Section 6.4(b), including (without limitation)
execution and non-revocation of the Release, Executive shall be eligible to receive the following change in control severance under Sections
6.5(a)(i)-(iv) (the “Change in Control Severance Benefits”) in lieu of (and not in addition to) the
Severance Benefits. For avoidance of doubt, if Executive’s employment terminates before or more than two years after the date of
a Change in Control, Executive shall not be eligible for the Change in Control Severance Benefits.
(i) The
Company will pay Executive an amount equal to two-and-one-half times (2.5x) the sum of Executive’s then current Base Salary and
Target Annual Bonus, to be paid in a lump sum, less applicable deductions and withholdings, on the Company’s first, regular payroll
date after the Release Effective Date.
(ii) The
Company will pay Executive the prior year’s Annual Bonus if the termination occurs after such calendar year but prior to payment
of any Annual Bonus relating to such prior calendar year, provided such Annual Bonus would have otherwise been payable to Executive had
Executive remained employed by the Company through the date of payment, which will be paid to Executive less applicable deductions and
withholdings when such prior year Annual Bonuses are otherwise paid.
(iii) The
benefits provided under Section 6.4(a)(iv), except that the Benefit Continuation Period shall be thirty (30) months.
(iv) All
of Executive’s then outstanding and unvested equity awards shall be governed by the terms of the applicable equity plans and award
agreements.
(b) For
purposes of this Agreement, “Change in Control” shall mean the occurrence of any of the following after the
Employment Commencement Date:
(i) any
person (as defined in Section 3(a)(9) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”),
as modified and used in Sections 13(d) and 14(d) thereof, a “Person”), other than (x) a trustee
or other fiduciary holding securities under an employee benefit plan of Holdings or (y) an affiliate as of the Employment Commencement
Date, is or becomes the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act),
directly or indirectly, of securities of Holdings representing 50% or more of the combined voting power of Holding’s then outstanding
securities;
(ii) during
any period of two consecutive years after the Employment Commencement Date, individuals who at the beginning of such period constitute
the Board and any new director (other than a director designated by a Person who has entered into an agreement with Holdings to effect
a transaction described in clauses (i), (iii) or (iv) of this definition) whose election by the Board or nomination for election
by Holding’s shareholders was approved by a vote of at least two-thirds of the directors then still in office who either were directors
at the beginning of the period or whose election or nomination for election was previously so approved, cease for any reason to constitute
a majority of the Board;
(iii) the
consummation of a merger, share exchange or consolidation of Holdings with any other entity, other than a merger, share exchange or consolidation
that would result in the voting securities of Holdings outstanding immediately prior thereto continuing to represent (either by remaining
outstanding or by being converted into voting securities of the surviving entity) at least 50% of the combined voting power of the voting
securities of Holdings or such surviving entity outstanding immediately after such merger, share exchange or consolidation; or
(iv) the
complete liquidation of Holdings and/or the Company or consummation of the sale or disposition by Holdings or an Affiliate of all or substantially
all of Holdings’ and/or the Company’s assets.
(c) Notwithstanding
the foregoing, (i) a Change in Control shall not be deemed to have occurred by virtue of the consummation of any transaction or series
of integrated transactions immediately following which the holders of common shares of Holdings immediately prior to such transaction
or series of transactions continue to have substantially the same proportionate ownership in an entity which owns, directly or indirectly,
all or substantially all of the assets of Holdings and/or the Company immediately following such transaction or series of transactions
such as a reincorporation of Holdings; and (ii) to the extent necessary to avoid the imposition of adverse taxation under Section 409A
of the Code, in no event will a Change in Control be deemed to have occurred if such transaction is not also a “change in the ownership
or effective control” or “a change in the ownership of a substantial portion of the assets” of Holdings and/or the Company,
as determined under Treasury Regulation Section 1.409A-3(i)(5).
6.6 Deemed
Resignations. Except as otherwise determined by the Board or as otherwise agreed to in writing by Executive and any authorized member
of the Company Group prior to the termination of Executive’s employment with the Company or any member of the Company Group, any
termination of Executive’s employment shall constitute, as applicable, an automatic resignation of Executive: (a) as an officer
of the Company and each member of the Company Group; and (b) from the Board and from the Board of Directors or Board of Managers
(or similar governing body) of any member of the Company Group and of any corporation, limited liability entity, unlimited liability entity
or other entity in which any member of the Company Group holds an equity interest and with respect to which Board of Directors or Board
of Managers (or similar governing body) Executive serves as such Company Group member’s designee or other representative.
7. DISCLOSURES.
Promptly (and in any event, within three (3) Business Days) upon becoming aware of any actual or potential Conflict of Interest Executive
shall disclose such actual or potential Conflict of Interest or such lawsuit, claim or arbitration to the Board. A “Conflict
of Interest” shall exist when Executive engages in, or plans to engage in, any activities, associations, or interests that
Executive reasonably believes will conflict with Executive’s duties, responsibilities, authorities, or obligations for and to Company
Group as required in accordance with the terms of this Agreement. As used herein, the term “Business Day” means
any day except a Saturday, Sunday or other day on which commercial banks in Denver, Colorado, are authorized or required by law to be
closed.
8. CONFIDENTIALITY.
In the course of Executive’s employment with the Company and the performance of Executive’s duties on behalf of the Company
Group hereunder, Executive will be provided with, and will have access to Confidential Information (as defined below) of the Company and
other members of the Company Group. In consideration of Executive’s receipt and access to such Confidential Information and in exchange
for other valuable consideration provided hereunder, and as a condition of Executive’s employment, Executive shall comply with this
Section 8.
8.1 Subject
to Section 8.2, both while employed by the Company and thereafter, except as expressly permitted by this Agreement, including
in the performance of his duties hereunder, or by directive of the Board, Executive shall not disclose any Confidential Information to
any person or entity and shall not use any Confidential Information obtained in connection with Executive’s employment pursuant
to this Agreement or affiliation with the Company Group as a Board member except for the benefit of the Company or the Company Group.
Executive shall follow all Company and Company Group policies and protocols of which he is advised regarding the security of all documents
and other materials containing Confidential Information (regardless of the medium on which Confidential Information is stored). The covenants
of this Section 8.1 shall apply to all Confidential Information, whether now known or later to become known to Executive during
the period that Executive is employed by the Company or any other member of the Company Group.
8.2 Notwithstanding
any provision of Section 8.1 to the contrary, while employed by the Company, Executive may make the following disclosures
and uses of Confidential Information:
(a) disclosures
to other employees of the Company Group who have a need to know the information in connection with the businesses of the Company Group;
(b) disclosures
to customers and suppliers when, in the reasonable and good faith belief of Executive, such disclosure is in connection with Executive’s
performance of Executive’s duties under this Agreement and is in the best interests of the Company Group;
(c) disclosures
and uses that are approved in writing by the Board; or
(d) disclosures
to a person or entity that has (x) been retained by a member of the Company Group to provide services to one or more members of the
Company Group and (y) agreed in writing to abide by the terms of a confidentiality agreement or has a similar obligation of confidentiality
to the Company Group.
8.3 Following
the termination of Executive’s employment with the Company or at any time upon request of the Company or the Board, Executive shall
promptly surrender and deliver to the Company all documents (including electronically stored information) and all copies thereof and all
other materials of any nature containing or pertaining to all Confidential Information and any other Company Group property (including
any Company Group-issued computer, mobile device or other equipment) in Executive’s possession, custody or control and Executive
shall not retain any such documents or other materials or property of the Company Group following the termination of Executive’s
employment with the Company or upon such request. Executive shall be entitled to retain any Confidential Information within his possession
to the extent needed to comply with any reporting obligations to a governmental agency and/or in any legal proceedings between the Parties.
For avoidance of doubt, Executive’s eligibility to receive the Severance Benefits shall cease should the Company or the Board establish
the same factual grounds as meets the definition of “Cause” above.
8.4 For
purposes of this Agreement, “Confidential Information” shall mean all non-public information and materials of
or pertaining to the Company that is valuable, proprietary and/or unique to the Company or any member of the Company Group in any form
or medium, including (without limitation) all notes, analyses, compilations, copies, documents, recordings, summaries, reproductions,
copies, translations, electronic copies or versions (in any medium including video, email, audio, video, MP3, or voicemail), regardless
of where the same may have been stored (including on any personal devices of Executive and information and materials generated by Executive
or third parties, received by a member of the Company Group from third parties). By way of example, “Confidential Information”
includes any and all of the following types of information: as to any Company Group member’s business practices, operations, prospects,
franchisees and franchisee agreements, or legal information and advice; protected by any and all non-disclosure agreements signed by Executive
during employment; concerning claims against or by any member of the Company Group; acquired by Executive in Executive’s capacity
as an employee of any member of the Company Group; education or training programs and materials developed by the Company Group or acquired
from a third party; contained in a Company Group member’s financial records; concerning regional, agent and franchise agreements,
prospects, events, information technology techniques and arrangements, processes and procedures for creating IT related resources, contemplated
products and services and agreement terms; concerning past acquisitions (closed or not closed) and acquisitions being planned or considered,
concerning data and issues related to public filings, and/or concerning purchasing information and other business, marketing, sales, strategic
and operational data of the Company Group and its franchisees. Confidential Information includes all other Company Group information and
materials which are of a propriety or confidential nature, even if they are not marked as such. Moreover, all documents, videotapes, written
presentations, brochures, drawings, memoranda, notes, records, files, correspondence, manuals, models, specifications, computer programs,
e-mail, voice mail, electronic databases, maps, drawings, architectural renditions, models and all other writings or materials of any
type including or embodying any of such information, ideas, concepts, improvements, discoveries, inventions and other similar forms of
expression are and shall be the sole and exclusive property of the Company Group and be subject to the same restrictions on disclosure
applicable to all Confidential Information pursuant to this Agreement. For purposes of this Agreement, Confidential Information shall
not include any information that (i) is or becomes generally available or is readily ascertainable to the public other than as a
result of a disclosure or wrongful act of Executive or any of Executive’s agents; (ii) arises from Executive’s general
training, knowledge, skill, or experience, whether gained on the job or otherwise, (iii) was available to Executive on a non-confidential
basis before its disclosure by a member of the Company Group; or (iii) becomes available to Executive on a non-confidential basis
from a source other than a member of the Company Group; provided, however, that, to the knowledge of Executive, such source
is not bound by a confidentiality agreement with, or other obligation with respect to confidentiality to, a member of the Company Group.
8.5 Notwithstanding
the foregoing, nothing in this Agreement shall prohibit or restrict Executive from lawfully: (a) initiating communications directly
with, cooperating with, providing information to, causing information to be provided to, or otherwise assisting in an investigation by,
any governmental authority regarding a possible violation of any law; (b) responding to any inquiry or legal process directed to
Executive from any such governmental authority; (c) testifying, participating or otherwise assisting in any action or proceeding
by any such governmental authority relating to a possible violation of law; (d) making any other disclosures that are protected under
the whistleblower provisions of any applicable law; or (e) discussing or disclosing underlying facts of any alleged discriminatory
or unfair employment practice, such as sexual harassment or sexual abuse, discriminatory or unfair employment practices, or any other
conduct that Executive has reason to believe is unlawful. Additionally, pursuant to the federal Defend Trade Secrets Act of 2016, an individual
shall not be held criminally or civilly liable under any federal or state trade secret law for the disclosure of a trade secret that:
(A) is made (1) in confidence to a federal, state or local government official, either directly or indirectly, or to an attorney
and (2) solely for the purpose of reporting or investigating a suspected violation of law; or (B) is made to the individual’s
attorney in relation to a lawsuit for retaliation against the individual for reporting a suspected violation of law or (C) is made
in a complaint or other document filed in a lawsuit or proceeding, if such filing is made under seal or other protected status. Nothing
in this Agreement requires Executive to obtain prior authorization before engaging in any conduct described in this paragraph, or to notify
the Company that Executive has engaged in any such conduct.
9. NON-COMPETITION;
NON-SOLICITATION.
9.1 The
Company and other members of the Company Group shall provide Executive access to trade secrets, as defined in C.R.S. § 7-74-101,
et seq., while employed by the Company, and Executive acknowledges and agrees that the Company and other members of the Company Group
will be entrusting Executive, based on Executive’s unique and special capacity as a senior executive and board member, with: (a) trade
secrets, proprietary rights and Confidential Information concerning the Company and other members of the Company Group and (b) access
to relationships and building goodwill with clients, employees, vendors, consultants, distributors, sales representatives or other business
counterparts of the Company and other members of the Company Group. In consideration of the Company and other members of the Company Group
providing Executive with access to such information and contacts and as an express incentive for the Company to enter into this Agreement
and employ Executive, Executive has voluntarily agreed to the covenants set forth in this Section 9. Executive agrees and
acknowledges that the limitations and restrictions set forth herein, including geographical and temporal restrictions on certain competitive
activities, are reasonable in all respects, will not cause Executive undue hardship or affect Executive’s ability to earn a livelihood,
and are material and substantial parts of this Agreement intended and necessary to protect the trade secrets and legitimate business interests
of the Company and other members of the Company Group. Executive agrees and acknowledges that at the time Executive first received this
Agreement, Executive was provided with the notice entitled “Notice of Covenant Not to Compete,” which Executive acknowledges
fully complies with the requirements of Colorado law, including C.R.S. § 8-2-113, et seq.
9.2 During
the Prohibited Period (as defined below), Executive shall not, without the prior written approval of the Board, directly or indirectly,
for Executive or on behalf of or in conjunction with any other person or entity of any nature:
(a) Provide
any services or engage in any activity that competes against the Company or any member of the Company Group in the Business in the Market
Area; provided that this Section 9.2(a) will only restrict Executive from providing services or engaging in activities
that are the same as or similar to the duties or responsibilities that Executive had on behalf of the Company or any member of the Company
Group or that require Executive to use or disclose the Company Group’s trade secrets;
(b) appropriate
any Business Opportunity located in the Market Area where such Business Opportunity relates to the Company or any member of the Company
Group;
(c) solicit,
encourage, entice or induce any Restricted Business Relationship: (i) to end their franchise or contract (or reduce their business)
with the Company or any member of the Company Group; or (ii) to enter into any service to Executive or any other business, organization,
program or activity, in each case (with respect to this clause (ii)) that competes with the Business; or
(d) solicit,
encourage, entice or induce any Restricted Service Provider to terminate his, her or its employment or engagement with the Company or
any member of the Company Group in any manner that is competitive to the Company or any member of the Company Group.
Notwithstanding the foregoing, nothing in this
Section 9 shall restrict Executive from engaging or participating in any activity permitted pursuant to Section 4.
9.3 Because
of the difficulty of measuring economic losses to the Company and other members of the Company Group as a result of a breach or threatened
breach of the covenants set forth in this Section 9, and because of the immediate and irreparable damage that would be caused
to the Company and other members of the Company Group for which they would have no other adequate remedy, the Company and each other member
of the Company Group shall be entitled to enforce the foregoing covenants, in the event of a breach or threatened breach, by preliminary
and permanent injunctions and restraining orders from any court of competent jurisdiction, without the necessity of showing any actual
damages, and without the necessity of posting any bond or other security. The aforementioned equitable relief shall not be the Company’s
or any other member of the Company Group’s exclusive remedy for a breach but instead shall be in addition to all other rights and
remedies available to the Company and each other member of the Company Group at law and equity.
9.4 The
covenants in this Section 9, and each provision and portion hereof, are severable and separate, and the unenforceability of
any specific covenant (or portion thereof) shall not affect the provisions of any other covenant (or portion thereof). Moreover, in the
event any court of competent jurisdiction shall determine that the scope, time or territorial restrictions set forth are unreasonable,
then it is the intention of the parties that such restrictions be enforced to the fullest extent which such court deems reasonable, and
this Agreement shall thereby be reformed.
9.5 The
following terms shall have the following meanings:
(a) “Business”
shall mean the business, operations, products, or services that are the same or substantially similar to those performed by the Company
and any other member of the Company Group while Executive was employed by the Company or that are the same or substantially similar to
the business, operations, products, or services which the Company or any member of the Company Group had active plans to provide while
Executive was employed by the Company; provided that “Business” shall not include any Company Group member: (i) for which
Executive did not perform services while employed by the Company; or (ii) Executive did not obtain trade secrets about such Company
Group member. The parties agree that as of the Employment Commencement Date, the Company Group’s business and operations include:
(A) franchising real estate brokerages, franchising mortgage brokerages, real estate brokerages, mortgage lending, or mortgage brokerages;
or (B) website or mobile applications designed for the display of real estate listing data, or lead generation or business development
for franchising real estate brokerages, franchising mortgage brokerages, real estate brokerages, or mortgage brokerages.
(b) “Business
Opportunity” shall mean any commercial, investment or other business opportunity of the Company or any member of the Company
relating to the Business that Executive learned about while employed by the Company due to Executive’s employment with the Company
or Executive’s services to any member of the Company Group.
(c) “Market
Area” shall mean any of the following locations: (i) during Executive’s employment or engagement with the Company,
every state, city, county, territory or other locale in which the Company (including franchisees of the Company Group) operates or has
taken recent and significant preparatory steps to enter, and (ii) after the termination of Executive’s employment or engagement
with the Company, any of the following locations: (A) the fifty (50) mile radius around any Company business location at which Executive
has worked on a regular basis during Executive’s employment with the Company; (B) the fifty (50) mile radius around Executive’s
home if Executive worked from home on a regular or occasional basis; or (C) any state, city, county, or similar political subdivision
in the United States or internationally in which: (x) the Company or any member of the Company Group regularly conducted Business
during Executive’s last twelve (12) months of employment with the Company; and (y) where Executive conducted business on behalf
of the Company during the last twelve (12) months prior to Executive’s termination of employment with the Company.
(d) “Prohibited
Period” shall mean the period during which Executive is employed by the Company and continuing for a period of (i) twelve
(12) months if Executive was employed by the Company for less than two (2) years and (ii) eighteen (18) months if Executive
was employed by the Company for two (2) years or more following the date that Executive is no longer employed by the Company, regardless
of whether Executive’s employment with the Company was voluntarily or involuntarily terminated. The Prohibited Period may not be
tolled or extended except by mutual agreement of the parties.
(e) “Restricted
Business Relationship” shall mean: (i) during Executive’s employment or engagement with the Company, any customer,
franchisee, real estate sales associate, loan originator, or regional owner of a franchise of the Company or any member of the Company
Group for which Executive provides services or about which Executive learned trade secrets; and (ii) after the termination of Executive’s
employment with the Company, any customer, franchisee, real estate sales associate, loan originator, or regional owner of a franchise
of the Company or any member of the Company Group which, during Executive’s last twelve (12) months of employment with the Company,
Executive: (a) solicited, serviced or had established a business-relationship; (b) was introduced to directly or through Executive’s
direct or indirect reports, or (c) about which Executive learned trade secrets.
(f) “Restricted
Service Provider” shall mean: (i) during Executive’s employment or engagement with the Company, any employee,
consultant, agent, representative, or independent contractor of the Company or any member of the Company Group for which Executive provides
services or about which Executive learned trade secrets; and (ii) after the termination of Executive’s employment or engagement
with the Company, any employee, consultant, agent, representative, or independent contractor of the Company or any member of the Company
Group which, during Executive’s last twelve (12) months of employment with the Company, Executive: (A) Executive had direct
business-related contacts with through Executive’s employment or services to the Company or any member of the Company Group; (B) was
responsible for and directed the operations of (directly or through Executive’s direct or indirect reports) through Executive’s
employment or services to the Company or any member of the Company Group; or (C) about which Executive learned trade secrets. Notwithstanding
the foregoing, Restricted Service Provider shall not include any person or entity who has not had any business-related contact with the
Company or any member of the Company Group within the twelve (12) months immediately preceding Executive’s last date of employment
with the Company.
10. NONDISPARAGEMENT.
10.1 Subject
to Section 8.5 above, Executive agrees that from and after the Employment Commencement Date, Executive will not, directly
or indirectly, make, publish, or communicate any disparaging or defamatory comments regarding the Company or any of its current or former
directors, officers, or executives. The foregoing shall not be violated by truthful statements in response to legal process, required
governmental testimony or filings or administrative or arbitral proceedings (including, without limitation, depositions in connection
with such proceedings). This provision shall not be interpreted to require or encourage Executive to make any misrepresentations. Further,
nothing in this Section prevents Executive from discussing or disclosing information including the underlying facts of any alleged
discriminatory or unfair employment practice, such as sexual harassment or sexual abuse, or any other conduct that Executive has reason
to believe is unlawful or violative of the Company’s policies or procedures. The parties agree that disclosure of the underlying
facts of any alleged discriminatory or unfair employment practice does not constitute disparagement.
10.2 Company
agrees that Company’s and Holding’s executive officers (the “Covered Individuals”) will not disparage
Executive. This provision shall not prohibit Company and the Covered Individuals from making any statements or taking any actions required
by law, reporting any actions or inactions to a governmental agency that Company or the Covered Individuals believe to be unlawful, or
participating in or cooperating with a governmental investigation. This provision shall not be interpreted to require or encourage Company
or the Covered Individuals to make any misrepresentations. If the Covered Individuals disparage Executive to a third party, Company will
not seek to enforce the non-disparagement provisions of this Agreement or seek damages against Executive or any other party to this Agreement
for violating those provisions, but all other remaining terms of this Agreement remain enforceable.
10.3 At
the same time that this Agreement is signed, Company and Executive will sign the addendum attached hereto as Exhibit B attesting
to compliance with C.R.S. § 24-34-407(b).
11. OWNERSHIP
OF INTELLECTUAL PROPERTY.
11.1 Executive
agrees that the Company shall own, and Executive shall (and hereby does) assign, all right, title and interest (including patent rights,
copyrights, trade secret rights, mask work rights, trademark rights, and all other intellectual and industrial property rights of any
sort throughout the world) relating to any and all inventions (whether or not patentable), works of authorship, mask works, designs, know-how,
ideas and information authored, created, contributed to, made or conceived or reduced to practice, in whole or in part, by Executive during
the period in which Executive is or has been employed by or affiliated with the Company or any other member of the Company Group that
either (a) relate, at the time of conception, reduction to practice, creation, derivation or development, to any member of the Company
Group’s businesses or actual or anticipated research or development, or (b) were developed on any amount of the Company’s
or any other member of the Company Group’s time or with the use of any member of the Company Group’s equipment, supplies,
facilities or trade secret information (all of the foregoing collectively referred to herein as “Company Intellectual Property”),
and Executive shall promptly disclose all Company Intellectual Property to the Company. All of Executive’s works of authorship and
associated copyrights created during the period in which Executive is employed by or affiliated with the Company or any other member of
the Company Group and in the scope of Executive’s employment or engagement (the “Works”) shall be deemed
to be “works made for hire” within the meaning of the Copyright Act and shall belong exclusively to Company, without Company
having the obligation of paying additional compensation to Executive. To the extent that the foregoing does not apply, Executive hereby
irrevocably assigns to the Company, for no additional consideration, Executive’s entire right, title, and interest in and to all
Works and all intellectual property rights therein, including the right to sue, counterclaim, and recover for all past, present, and future
infringement, misappropriation, or dilution thereof, and all rights corresponding thereto throughout the world. Executive shall perform,
during and after the period in which Executive is or has been employed by or affiliated with the Company or any other member of the Company
Group, all reasonable acts deemed necessary by the Company to assist each member of the Company Group, at the Company’s expense,
in obtaining and enforcing its rights throughout the world in the Company Intellectual Property. Such acts may include execution of documents
and assistance or cooperation (i) in the filing, prosecution, registration, and memorialization of assignment of any applicable patents,
copyrights, mask work, or other applications, (ii) in the enforcement of any applicable patents, copyrights, mask work, moral rights,
trade secrets, or other proprietary rights, and (iii) in other legal proceedings related to the Company Intellectual Property.
11.2 Executive
has identified and listed on Exhibit C attached hereto, a complete list of all intellectual property that Executive authored,
conceived, developed, reduced to practice, modified, or improved (either solely or jointly with others) prior to the Employment Commencement
Date that has not been legally assigned or licensed to the Company (collectively, “Prior Inventions”). If no
Prior Inventions are listed on Exhibit C, Executive represents and warrants that Executive has no Prior Inventions to disclose.
Executive hereby agrees not to incorporate, or permit to be incorporated, Prior Inventions into any Company Intellectual Property without
the Company’s prior written consent. If Executive incorporates or causes to be incorporated into any Company Intellectual Property,
or otherwise exploits therewith, any Prior Inventions, then the Company shall own all such Prior Inventions, and Executive hereby assigns
all right, title, and interest in such Prior Inventions the Company. Executive hereby grants to the Company a non-exclusive, perpetual,
irrevocable, transferable, worldwide, fully paid license, with the right to sublicense (through multiple tiers of sublicenses), to use,
offer to sell, sell, distribute, or otherwise exploit any Prior Inventions that are incorporated into any Company Intellectual Property,
but that are not assigned to the Company pursuant to the preceding sentence. The Company shall own all right, title and interest in and
to any derivative works of, or improvements, enhancements or updates to, the Prior Inventions made by or on behalf of any of the Company
pursuant to the license granted herein. For purposes of this Agreement, “Intellectual Property” shall mean any
patent rights, copyrights, trade secret rights, mask work rights, trademark rights, and all other intellectual and industrial property
rights of any sort throughout the world.
11.3 Executive
understands that this Agreement does not, and shall not be construed to, grant Executive any license or right of any nature with respect
to any Works, Company Intellectual Property or any Confidential Information, materials, software, or other resources or tools made available
to Executive by the Company or the Company Group.
11.4 Executive
hereby irrevocably consents to any and all uses and displays, by the Company and the Company Group and their licensees, of Executive's
name, voice, likeness, image, appearance, and biographical information in, on or in connection with any images, photographs, audio and
video recordings, websites, broadcast or streamed programs and advertising, other advertising and publicity, sales and marketing brochures,
books, magazines, other publications, and all other printed and electronic forms and media throughout the world, at any time during or
after the term of Executive’s employment with the Company, for all legitimate commercial and business purposes of the Company or
the Company Group (“Permitted Uses”) without further consent from or royalty, payment, or other compensation
to Executive. Executive hereby forever waives and releases the Company and the Company Group and their directors, officers, employees,
and agents from any and all claims, actions, damages, losses, costs, expenses, and liability of any kind, arising under any legal or equitable
theory whatsoever at any time during or after the term of Executive’s employment with the Company, arising directly or indirectly
from any Permitted Uses engaged in by the Company, the Company Group or their licensees.
12. DEFENSE
OF CLAIMS; COOPERATION WITH COMPANY AFTER TERMINATION OF EMPLOYMENT AND DUTY TO DEFEND/INDEMNIFY. While employed by the Company
and thereafter, upon request from the Company, Executive shall reasonably cooperate with the Company and any member of the Company Group
in the defense of any claims or actions that may be made by or against any member of the Company Group that relate to Executive’s
actual or prior areas of responsibility to the Company Group. Following termination of Executive’s employment for any reason, Executive
shall fully cooperate with the Company in all matters relating to the winding up of Executive’s pending work including, but not
limited to, any litigation in which the Company is involved, and the orderly transfer of any such pending work to such other employees
as may be designated by the Company. In the event such cooperation requires Executive to dedicate more than (i) fifty (50) hours
in the twelve months following termination of employment or (ii) twenty-five (25) hours in any subsequent twelve-month period beginning
one year after termination of Executive’s employment with the Company, Company shall reimburse Executive at a rate of two hundred
fifty dollars ($250) per hour. Further, Company shall reimburse Executive for any reasonable, actual, and documented out-of-pocket expenses.
13. WITHHOLDINGS;
DEDUCTIONS. The Company may withhold and deduct from any benefits and payments made or to be made pursuant to this Agreement (a) all
federal, state, local and other taxes as may be required pursuant to any law or governmental regulation or ruling and (b) any deductions
consented to by Executive.
14. TITLE
AND HEADINGS; CONSTRUCTION. Titles and headings to Sections hereof are for the purpose of reference only and shall in no way limit,
define or otherwise affect the provisions hereof. Any and all exhibits or attachments referred to in this Agreement are, by such reference,
incorporated herein and made a part hereof for all purposes. Unless the context requires otherwise, all references to laws, regulations,
contracts, agreements and instruments refer to such laws, regulations, contracts, agreements and instruments as they may be amended from
time to time, and references to particular provisions of laws or regulations include a reference to the corresponding provisions of any
succeeding law or regulation. All references to “dollars” or “$” in this Agreement refer to United States dollars.
The words “herein”, “hereof”, “hereunder” and other compounds of the word “here” shall
refer to the entire Agreement, including all exhibits and attachments attached hereto, and not to any particular provision hereof. Wherever
the context so requires, the masculine gender includes the feminine or neuter, and the singular number includes the plural and conversely.
All references to “including” shall be construed as meaning “including without limitation.”
15. GOVERNING
LAW; VENUE. This Agreement will be governed by and construed according to the internal laws of the State of Colorado without regards
to the conflicts of law provisions. With respect to any claim or dispute related to or arising under this Agreement, the parties hereby
consent to the exclusive jurisdiction, forum and venue of the state and federal courts (as applicable) located in Denver, Colorado.
16. MEDIATION
AND WAIVER OF JURY TRIAL.
16.1 Except
for claims or actions by Executive alleging sexual harassment or sexual assault (which Executive may still agree to submit to mediation),
the parties and members of the Company Group agree they must, as a pre-requisite to filing a lawsuit against each other regarding any
provision of this Agreement, or the enforcement or interpretation thereof, engage in non-binding mediation of their dispute. The mediation
shall be set for a full day, and shall be conducted in Denver, Colorado. The mediation shall be private and shall be before a single mediator
employed by Denver’s Judicial Arbitration and Mediation Services, Inc. (“JAMS”). Each side shall
be responsible for half of all JAMS fees and costs incurred in the mediation process, and for their respective attorney fees and costs
incurred in the mediation process. The mediation must be held within forty-five (45) days of the demanding party’s request for mediation.
The mediator shall be selected as follows: the party first demanding mediation (the “demanding party”) shall, at the
time a demand for mediation is made, provide the names of six (6) JAMS Denver mediators who are available within the forty-five (45)
day period to mediate. The responding party shall then have three (3) business days to return to the demanding party the names of
two (2) JAMS mediators acceptable to the responding party. The demanding party shall then be responsible for scheduling the mediation
with JAMS on the calendars of one of those mediators. If both mediators are available to the parties, the demanding party may make the
final selection of a mediator. Nothing in this provision is intended to prevent or otherwise limit the parties from obtaining injunctive
relief from a court of competent jurisdiction.
16.2 WITH
RESPECT TO ANY DISPUTE ARISING OUT OF OR RELATED TO THIS AGREEMENT, EACH PARTY TO THIS AGREEMENT HEREBY KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY
AGREES TO WAIVE ANY RIGHT SUCH PARTY MAY HAVE TO A JURY TRIAL AND FURTHER AGREES THAT ALL SUCH DISPUTES WILL BE RESOLVED SOLELY BY
A JUDGE. BY SIGNING THIS AGREEMENT, EXECUTIVE AND COMPANY ARE EACH GIVING UP HIS/ITS RIGHT TO A JURY TRIAL.
16.3 Nothing
in this Section 16 precludes Executive from filing a charge or complaint with a federal, state or other governmental administrative
agency.
17. ENTIRE
AGREEMENT AND AMENDMENT. This Agreement together with the equity award agreements contains the entire agreement of the parties
with respect to the matters covered herein and, supersedes all prior and contemporaneous agreements and understandings, oral or written,
between the parties hereto concerning the subject matter hereof. This Agreement may be amended only by a written instrument executed by
both Executive and an authorized officer of the Company (as approved by the Board in writing). The parties may enter into other award
agreements governing Executive’s equity and Executive’s obligations to the Company Group or restrictive covenants to the Company
Group. Any such separate agreements govern other aspects of the relationship between the parties, have or may have provisions that survive
termination of Executive’s employment under this Agreement, may be amended or superseded by the parties without regard to this agreement
and are enforceable according to their terms without regard to the enforcement provision of this Agreement.
18. WAIVER
OF BREACH. Any waiver of this Agreement must be executed by the party to be bound by such waiver. No waiver by either party hereto
of a breach of any provision of this Agreement by the other party, or of compliance with any condition or provision of this Agreement
to be performed by such other party, will operate or be construed as a waiver of any subsequent breach by such other party or any similar
or dissimilar provision or condition at the same or any subsequent time. The failure of either party hereto to take any action by reason
of any breach will not deprive such party of the right to take action at any time.
19. ASSIGNMENT.
This Agreement is personal to Executive, and neither this Agreement nor any rights or obligations hereunder shall be assignable or otherwise
transferred by Executive, except for payments or benefits to Executive’s estate upon Executive’s death. The Company may assign
this Agreement without Executive’s consent, including to any member of the Company Group and to any successor to or acquirer of
(whether by merger, purchase or otherwise) all or substantially all of the equity, assets or businesses of the Company.
20. NOTICES.
Notices provided for in this Agreement shall be in writing and shall be deemed to have been duly received: (a) when delivered in
person; (b) when sent by electronic mail, telex or confirmed facsimile if sent during normal business hours of the recipient, and
if not, then on the next business day, (c) on the first Business Day after such notice is sent by express overnight courier service;
or (d) on the second Business Day following deposit with an internationally-recognized second-day courier service with proof of receipt
maintained, in each case, to the following address, as applicable:
If to the Company, addressed
to:
RE/MAX, LLC
5075 South Syracuse Street
Denver, Colorado 80237-2712
Attn: General Counsel
By e-mail to: legal@remax.com
If to Executive, at Executive’s
last known address on file with the Company.
21. COUNTERPARTS.
This Agreement may be executed in any number of counterparts, including by electronic mail, each of which when so executed and delivered
shall be an original, but all such counterparts shall together constitute one and the same instrument. Each counterpart may consist of
a copy hereof containing multiple signature pages, each signed by one party, but together signed by both parties hereto.
22. SECTION 409A.
22.1 Notwithstanding
any provision of this Agreement to the contrary, all provisions of this Agreement are intended to comply with Section 409A of the
Code, and the applicable Treasury regulations and administrative guidance issued thereunder (collectively, “Section 409A”)
or an exemption therefrom and shall be construed and administered in accordance with such intent. Any payments under this Agreement that
may be excluded from Section 409A either as separation pay due to an involuntary separation from service or as a short-term deferral
shall be excluded from Section 409A to the maximum extent possible. For purposes of Section 409A, each installment payment provided
under this Agreement shall be treated as a separate payment. Any payments to be made under this Agreement that constitute “nonqualified
deferred compensation” within the meaning of Section 409A and are payable upon a termination of Executive’s employment,
or for which a termination of Executive’s employment is intended to be treated as a “substantial risk of forfeiture”
for purposes of Section 409A, shall only be made if such termination of employment constitutes a “separation from service”
under Section 409A.
22.2 To
the extent that any right to reimbursement of expenses or payment of any benefit in-kind under this Agreement constitutes nonqualified
deferred compensation (within the meaning of Section 409A), (i) any such expense reimbursement shall be made by the Company
no later than the last day of Executive’s taxable year following the taxable year in which such expense was incurred by Executive,
(ii) the right to reimbursement or in-kind benefits shall not be subject to liquidation or exchange for another benefit, and (iii) the
amount of expenses eligible for reimbursement or in-kind benefits provided during any taxable year shall not affect the expenses eligible
for reimbursement or in-kind benefits to be provided in any other taxable year; provided, that the foregoing clause shall not be
violated with regard to expenses reimbursed under any arrangement covered by Section 105(b) of the Code solely because such
expenses are subject to a limit related to the period in which the arrangement is in effect.
22.3 Notwithstanding
any provision in this Agreement to the contrary, (a) if any payments hereunder could occur in one of two calendar years as a result
of being dependent upon the Release becoming non-revocable, then, to the extent required to avoid penalties under Section 409A, such
payments shall commence or be made on the first regularly scheduled payroll date of the Company, following the date the Release becomes
non-revocable, that occurs in the second of such two calendar years and (b) if any payment or benefit provided for herein would be
subject to additional taxes and interest under Section 409A if Executive’s receipt of such payment or benefit is not delayed
until the earlier of the date of Executive’s death or the date that is six (6) months after the date of Executive’s separation
from service (such date, the “Section 409A Payment Date”), then such payment or benefit shall not be provided
to Executive (or Executive’s estate, if applicable) until the Section 409A Payment Date. Notwithstanding the foregoing, the
Company makes no representations that the payments and benefits provided under this Agreement are exempt from, or compliant with, Section 409A
and in no event shall any member of the Company Group be liable for all or any portion of any taxes, penalties, interest or other expenses
that may be incurred by Executive on account of non-compliance with Section 409A.
23. SECTION 280G.
Notwithstanding anything in this Agreement to the contrary, if any payment or distribution Executive would receive pursuant to this Agreement
or otherwise (“Payment”) would (a) constitute a “parachute payment” within the meaning of Section 280G
of the Code, and (b) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise
Tax”), then such Payment shall either be (i) delivered in full, or (ii) delivered as to such lesser extent which
would result in no portion of such Payment being subject to the Excise Tax, whichever of the foregoing amounts, taking into account the
applicable federal, state and local income taxes and the Excise Tax, results in the receipt by Executive on an after-tax basis, of the
largest payment, notwithstanding that all or some portion of the Payment may be taxable under Section 4999 of the Code. The Company
shall, prior to the effective date of the Change in Control, appoint an accounting firm or firm specializing in Section 280G of the
Code to perform the foregoing calculations. The Company shall bear all expenses with respect to the determinations by such accounting
firm required to be made hereunder. Any good faith, reasonable determinations of the accounting firm made hereunder shall be final, binding
and conclusive upon the Company (and successors) and Executive. Any reduction in payments and/or benefits pursuant to this Section 23
will occur in the following order: (1) reduction of cash payments the full amount of which are treated as parachute payments; (2) reduction
in payments due in respect of equity awards the full amount of which are treated as parachute payments; (3) reduction of cash payments
less than the full amount of which are treated as parachute payments, with the highest values reduced first; (4) reduction in payments
due in respect of equity awards less than the full amount of which are treated as parachute payments, with the highest values reduced
first; and (5) reduction of other benefits payable to Executive, with the highest values reduced first. Nothing in this Section 23 shall
require the Company or any of its affiliates to be responsible for, or have any liability or obligation with respect to, Executive’s
excise tax liabilities under Section 4999 of the Code.
24. CLAWBACK.
To the extent required by applicable law or any applicable securities exchange listing standards, or as otherwise provided in any recoupment,
clawback or similar policy that is adopted or amended by Holdings or any other member of the Company Group, amounts paid or payable pursuant
to this Agreement shall be subject to the provisions of any applicable clawback policies or procedures adopted by the Company, which clawback
policies or procedures may provide for forfeiture and/or recoupment of amounts paid or payable pursuant to this Agreement. Notwithstanding
any provision of this Agreement to the contrary, members of the Company Group reserve the right, without the consent of Executive, to
adopt or amend any such clawback policies and procedures, including such policies and procedures applicable to this Agreement with retroactive
effect, provided that any policy shall apply to other C-level executive officers of the Company.
25. EFFECT
OF TERMINATION. Subject to Section 1.2, this Agreement shall become effective on the Employment Commencement Date
and will remain in effect until the earlier of the date Executive’s employment terminates or the date the Agreement is terminated
by written agreement of the parties; provided, that the provisions of Sections 6 (if Executive’s employment terminates prior
to the parties’ termination of the Agreement), and 7 through 27 of this Agreement and those provisions necessary to
interpret and enforce them, shall survive any termination of this Agreement and any termination of Executive’s employment with the
Company.
26. THIRD-PARTY
BENEFICIARIES. Each member of the Company Group that is not a signatory to this Agreement shall be a third-party beneficiary of
Executive’s obligations under Sections 7, through 11 of this Agreement and shall be entitled to enforce such obligations
as if a party hereto; provided that, there will be no other third-party beneficiaries to this Agreement.
27. SEVERABILITY.
Should any provision of this Agreement be held by a court of competent jurisdiction to be enforceable only if modified, or if any portion
of this Agreement shall be held as unenforceable and thus stricken, such holding shall not affect the validity of the remainder of this
Agreement, the balance of which shall continue to be binding upon the parties with any such modification to become a part hereof and treated
as though originally set forth in this Agreement. The parties further agree that any such court is expressly authorized to modify any
such unenforceable provision of this Agreement in lieu of severing such unenforceable provision from this Agreement in its entirety, whether
by rewriting the offending provision, deleting any or all of the offending provision, adding additional language to this Agreement, or
by making such other modifications as it deems warranted to carry out the intent and agreement of the parties as embodied herein to the
maximum extent permitted by law. The parties expressly agree that this Agreement as so modified by the court shall be binding upon and
enforceable against each of them. In any event, should one or more of the provisions of this Agreement be held to be invalid, illegal,
or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provisions hereof, and if
such provision or provisions are not modified as provided above, this Agreement shall be construed as if such invalid, illegal, or unenforceable
provisions had not been set forth herein.
28. ACKNOWLEDGEMENT
OF FULL UNDERSTANDING. EXECUTIVE ACKNOWLEDGES AND AGREES THAT EXECUTIVE HAS FULLY READ, UNDERSTANDS
AND VOLUNTARILY ENTERS INTO THIS AGREEMENT. EXECUTIVE ACKNOWLEDGES AND AGREES THAT EXECUTIVE HAS BEEN REPRESENTED BY AN ATTORNEY OF EXECUTIVE’S
CHOICE IN NEGOTIATING AND ENTERING INTO THIS AGREEMENT.
[Remainder of Page Intentionally Blank;
Signature Page Follows]
IN WITNESS WHEREOF,
Executive and the Company have executed this Agreement effective of the date first above written.
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EXECUTIVE |
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/s/
W. Erik Carlson |
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W. Erik Carlson |
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Date: |
November 10, 2023 |
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COMPANY |
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|
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By: |
/s/
Roger Dow |
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Name: |
Roger Dow |
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Title: |
Lead Independent Director |
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Date: |
November 9, 2023 |
Exhibit A
Additional Inducement Award
Performance-Based Vesting Terms
Stock Price Levels
Threshold: $20 (total of 25% of Target vests)
$25 (total of 50% of Target vests)
$30 (total of 75% of Target vests)
Target: $35 (total of Target vests)
$40 (total of 125% of Target vests)
$45 (total of 150% of Target vests)
$50 (total of 175% of Target vests)
Stretch: $55 (total of 200% of Target vests)
| · | The performance-based award will have a target number of RSUs, as set forth in Section 2.3(b) (such
number, the “Target”). |
| · | The award will be eligible for vesting based upon the achievement of stock price levels through December 31,
2027, as set forth in the table above. Each stock price level in the table above is referred to as a “Stock Price Level”. |
| · | Twenty-five (25%) of the Target is eligible to vest when each Stock Price Level is achieved. |
| · | Achievement of each Stock Price Level will be satisfied when the volume weighted average stock price over
a 60-day measurement period first meets or exceeds the applicable Stock Price Level, the “Achievement Date”. |
| · | When a Stock Price Level is met, the RSUs for that Stock Price Level will vest, so long as Executive remains
in Continuous Service through the Achievement Date, provided that no RSUs from this award shall vest later than December 31, 2027. |
Exhibit 10.2
RE/MAX
HOLDINGS, INC.
NOTICE
OF Restricted Stock Unit INDUCEMENT AWARD
Grantee’s Name:
You (the “Grantee”) have been granted
an award of Restricted Stock Units (the “Award”) as an “inducement” award under applicable New York Stock Exchange
rules and regulations. The Award is granted outside of the RE/MAX Holdings, Inc. (the “Company”) 2023 Omnibus Incentive
Plan (“Plan”) but will be governed in all respects as if issued under the Plan, as currently in effect and as may be amended
hereafter from time to time, and will be subject to the terms and conditions of this Notice of Restricted Stock Unit Award (the “Notice”)
and the attached Restricted Stock Unit Agreement (the “Agreement”). Capitalized terms used but not defined in the Notice or
the Agreement shall have the meanings ascribed to such terms under the Plan.
Award Number: [___]
Date of Award: [___]
Total Number of Restricted Stock Units Awarded (the “Units”):
[___]
Vesting Schedule:
[Time-based vesting schedule]
In the event of 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 Change in Control.
In the event of 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 a Related Entity) without Cause or by the Grantee with Good Reason,
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 a Related Entity) 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 a Related Entity). For this purpose, “Good Reason” means, with respect to the termination by Grantee of
Grantee’s Continuous Service, that such termination is for “Good Reason” as such term (or word(s) of like import)
is expressly defined in a then-effective written agreement between the Grantee and such entity (or a Related Entity) In the event there
is no effective written agreement between Company (or a Related Entity) that defines “Good Reason” and “Cause”
(or words of like import), then such terms shall have the definitions given to them in the employment agreement that was most recently
in effect between the Company (or a Related Entity) and Grantee prior to termination of Grantee’s Continuous Service.
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, all unvested Units shall immediately become vested as of the date of such termination
of Continuous Service.
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.
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RE/MAX Holdings, Inc., |
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a Delaware corporation |
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|
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By: |
|
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[Name] |
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[Title] |
| |
[Date] |
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.
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.
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.
Name:
Award Number:
RE/MAX
HOLDINGS, INC.
RESTRICTED STOCK UNIT INDUCEMENT AWARD AGREEMENT
1. Issuance
of Units. RE/MAX Holdings, Inc., a Delaware corporation (the “Company”), hereby issues to the Grantee (the “Grantee”)
named in the Notice of Restricted Stock Unit Award (the “Notice”) an award (the “Award”) of the Total Number of
Restricted Stock Units Awarded set forth in the Notice (the “Units”), subject to the Notice and this Restricted Stock Unit
Agreement (the “Agreement”). Although the Award is not granted under the Company’s 2023 Omnibus Incentive Plan (“Plan”),
the Award will be governed in all respects as if issued under the Plan, which is incorporated herein by reference. Unless otherwise provided
herein, the terms in this Agreement shall have the same meaning as those defined in the Plan.
2. Transfer
Restrictions. The Units may not be transferred in any manner other than by will or by the laws of descent and distribution.
3. Conversion
of Units and Issuance of Shares.
(a) General.
Subject to Section 3(b), one share of Common Stock shall be issuable for each Unit subject to the Award (the “Shares”)
upon vesting. Immediately thereafter, or as soon as administratively feasible, the Company will transfer the appropriate number of Shares
to the Grantee, subject to satisfaction of any required tax or other withholding obligations. Any fractional Unit remaining after the
Award is fully vested shall be discarded and shall not be converted into a fractional Share. Notwithstanding the foregoing, the relevant
number of Shares shall be issued no later than sixty (60) days following the date the Unit vests.
(b) Delay
of Issuance of Shares. The Company shall delay the issuance of any Shares under this Section 3 to the extent necessary to comply
with Section 409A(a)(2)(B)(i) of the Code (relating to payments made to certain “specified employees” of certain
publicly-traded companies); in such event, any Shares to which the Grantee would otherwise be entitled during the six (6) month period
following the date of the Grantee’s termination of Continuous Service will be issuable on the first business day following the expiration
of such six (6) month period. Further, the Company shall delay the issuance of any Shares under this Section 3 as provided in
any deferred compensation arrangement that Grantee has entered into and that has been approved by the Company (such arrangement, a “Compensation
Deferral Arrangement”).
4. Right
to Shares and Dividends; Dividend Equivalent Rights. The Grantee shall not have any right in, to or with respect to any of the Shares
(including any voting rights or rights with respect to dividends paid on the Shares) issuable under the Award until the Award is settled
by the issuance of such Shares to the Grantee, except that Dividend Equivalent Rights shall be earned with respect to Units that vest.
The amount of Dividend Equivalent Rights earned with respect to each such Unit that vests shall be equal to the total ordinary cash dividends,
if any, declared on a Share where the record date of the dividend is between the Grant Date of this Award and the date a Share is issued
upon vesting of the Unit. Any Dividend Equivalent Rights earned shall be paid in cash to the Grantee when the Shares subject to the vested
Units to which they relate are issued (provided, that, to the extent issuance of Shares in settlement of the Award is deferred pursuant
to an applicable Compensation Deferral Arrangement, any Dividend Equivalent Rights Grantee is entitled to under this Agreement shall be
paid as set forth in the Compensation Deferral Arrangement). No Dividend Equivalent Rights shall be earned or paid with respect to any
Units that do not vest. Dividend Equivalent Rights shall not accrue interest.
5. Taxes.
(a) Tax
Liability. The Grantee is ultimately liable and responsible for all taxes owed by the Grantee in connection with the Award, regardless
of any action the Company or any Related Entity takes with respect to any tax withholding obligations that arise in connection with the
Award. Neither the Company nor any Related Entity makes any representation or undertaking regarding the treatment of any tax withholding
in connection with any aspect of the Award, including the grant, vesting, assignment, release or cancellation of the Units, the delivery
of Shares, the subsequent sale of any Shares acquired upon vesting and the receipt of any dividends or dividend equivalent rights. The
Company does not commit and is under no obligation to structure the Award to reduce or eliminate the Grantee’s tax liability.
(b) Payment
of Withholding Taxes. Prior to any event in connection with the Award (e.g., vesting or issuance of Shares) that the Company determines
may result in any tax withholding obligation, whether United States federal, state, local or non-U.S., including any social insurance,
employment tax, payment on account or other tax-related obligation (the “Tax Withholding Obligation”), the Grantee must arrange
for the satisfaction of the minimum amount of such Tax Withholding Obligation in a manner acceptable to the Company.
| (i) | By Share Withholding. If permissible under Applicable Law, the Grantee authorizes the Company to, upon the exercise of its
sole discretion, withhold from those Shares otherwise issuable to the Grantee the whole number of Shares sufficient to satisfy the minimum
applicable Tax Withholding Obligation. The Grantee acknowledges that the withheld Shares may not be sufficient to satisfy the Grantee’s
minimum Tax Withholding Obligation. Accordingly, the Grantee agrees to pay to the Company or any Related Entity as soon as practicable,
including through additional payroll withholding, any amount of the Tax Withholding Obligation that is not satisfied by the withholding
of Shares described above. |
| (ii) | By Sale of Shares. The Grantee’s acceptance of this Award constitutes the Grantee’s authorization to the Company
and any brokerage firm determined acceptable to the Company for such purpose to, upon the exercise of Company’s sole discretion,
sell on the Grantee’s behalf a whole number of Shares from those Shares issuable to the Grantee as the Company determines to be
appropriate to generate cash proceeds sufficient to satisfy the minimum applicable Tax Withholding Obligation. Such Shares will be sold
on the day such Tax Withholding Obligation arises (e.g., a vesting date) or as soon thereafter as practicable. The Grantee will be responsible
for all broker’s fees and other costs of sale, and the Grantee agrees to indemnify and hold the Company harmless from any losses,
costs, damages, or expenses relating to any such sale. To the extent the proceeds of such sale exceed the Grantee’s minimum Tax
Withholding Obligation, the Company agrees to pay such excess in cash to the Grantee. The Grantee acknowledges that the Company or its
designee is under no obligation to arrange for such sale at any particular price, and that the proceeds of any such sale may not be sufficient
to satisfy the Grantee’s minimum Tax Withholding Obligation. Accordingly, the Grantee agrees to pay to the Company or any Related
Entity as soon as practicable, including through additional payroll withholding, any amount of the Tax Withholding Obligation that is
not satisfied by the sale of Shares described above. |
(c) 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 thirty (30) 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.
6. Entire
Agreement; Governing Law. The Notice, the Plan and this Agreement constitute the entire agreement of the parties with respect to the
subject matter hereof and supersede in their entirety all prior undertakings and agreements of the Company and the Grantee with respect
to the subject matter hereof, and may not be modified adversely to the Grantee’s interest except by means of a writing signed by
the Company and the Grantee. These agreements are to be construed in accordance with and governed by the internal laws of the State of
Colorado without giving effect to any choice of law rule that would cause the application of the laws of any jurisdiction other than
the internal laws of the State of Colorado to the rights and duties of the parties. Should any provision of the Notice or this Agreement
be determined to be illegal or unenforceable, the other provisions shall nevertheless remain effective and shall remain enforceable.
7. Construction.
The captions used in the Notice and this Agreement are inserted for convenience and shall not be deemed a part of the Award for construction
or interpretation. Except when otherwise indicated by the context, the singular shall include the plural and the plural shall include
the singular. Use of the term “or” is not intended to be exclusive, unless the context clearly requires otherwise.
8. Administration
and Interpretation. Any question or dispute regarding the administration or interpretation of the Notice, the Plan or this Agreement
shall be submitted by the Grantee or by the Company to the Administrator. The resolution of such question or dispute by the Administrator
shall be final and binding on all persons.
9. Venue
and Jurisdiction. The parties agree that any suit, action, or proceeding arising out of or relating to the Notice, the Plan or this
Agreement shall be brought exclusively in the United States District Court for Colorado (or should such court lack jurisdiction to hear
such action, suit or proceeding, in a Colorado state court) and that the parties shall submit to the jurisdiction of such court. The parties
irrevocably waive, to the fullest extent permitted by law, any objection the party may have to the laying of venue for any such suit,
action or proceeding brought in such court. THE PARTIES ALSO EXPRESSLY WAIVE ANY RIGHT THEY HAVE OR MAY HAVE TO A JURY TRIAL OF ANY
SUCH SUIT, ACTION OR PROCEEDING. If any one or more provisions of this Section 9 shall for any reason be held invalid or unenforceable,
it is the specific intent of the parties that such provisions shall be modified to the minimum extent necessary to make it or its application
valid and enforceable.
10. Notices.
Any notice required or permitted hereunder shall be given in writing and shall be deemed effectively given upon personal delivery, upon
deposit for delivery by an internationally recognized express mail courier service or upon deposit in the United States mail by certified
mail (if the parties are within the United States), with postage and fees prepaid, addressed to the other party at its address as shown
in these instruments, or to such other address as such party may designate in writing from time to time to the other party.
11. Amendment
and Delay to Meet the Requirements of Section 409A. The Grantee acknowledges that the Company, in the exercise of its sole discretion
and without the consent of the Grantee, may amend or modify this Agreement in any manner and delay the issuance of any Shares issuable
pursuant to this Agreement to the minimum extent necessary to meet the requirements of Section 409A of the Code as amplified by any
Treasury regulations or guidance from the Internal Revenue Service as the Company deems appropriate or advisable. Notwithstanding anything
in this Agreement or the Plan to the contrary, to the extent the Award is determined to be subject to Section 409A of the Code and
Shares will be issued pursuant to the Award on account of such Change in Control, no Change in Control shall be deemed to have occurred
for purposes of this Award unless such Change in Control also constitutes a change in the ownership or effective control of the Company
or a change in the ownership of a substantial portion of the assets of the Company, as those terms are used in Section 409A of the
Code. In addition, the Company makes no representation that the Award will comply with Section 409A of the Code and makes no undertaking
to prevent Section 409A of the Code from applying to the Award or to mitigate its effects on any deferrals or payments made in respect
of the Units. The Grantee is encouraged to consult a tax adviser regarding the potential impact of Section 409A of the Code.
END OF AGREEMENT
Exhibit 10.3
RE/MAX
holdings, inc.
NOTICE
OF Restricted Stock Unit INDUCEMENT AWARD
Grantee’s Name:
You (the “Grantee”) have been granted
an award of Restricted Stock Units (the “Award”) as an “inducement” award under applicable New York Stock Exchange
rules and regulations. The Award is granted outside of the RE/MAX Holdings, Inc. (the “Company”) 2023 Omnibus Incentive
Plan (“Plan”) but will be governed in all respects as if issued under the Plan, as currently in effect and as may be amended
hereafter from time to time, and will be subject to the terms and conditions of this Notice of Restricted Stock Unit Award (the “Notice”)
and the attached Restricted Stock Unit Agreement (the “Agreement”). Capitalized terms used but not defined in the Notice or
the Agreement shall have the meanings ascribed to such terms under the Plan.
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: [__]
Target Number of Restricted Stock
Units Awarded (the “Target Award”)*: [__]
Performance Period: Date of Award through [___]
*The actual number of Restricted Stock Units (the “Units”)
that vest will range from 0% to 200% of the Target Award, depending on the extent to which applicable vesting requirements are satisfied,
as determined by the Administrator.
Vesting Schedules:
Except as otherwise set forth below, subject to
the Grantee’s Continuous Service through the day that a stock price level is first achieved (each such date, a “Vesting Date”),
and the other limitations set forth in this Notice, the Agreement and the Plan, the Award will vest based on achievement of certain stock
price levels during the Performance Period for the Company’s Shares as set forth below:
If 60-Day VWAP for a
Share is: |
Then, the % of the Target
Award That Vests is: |
Cumulative % of the
Target Award That Has
Vested: |
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For purposes of the vesting schedules, the “60-Day
VWAP” means, as of any date, the volume-weighted average trading price per share of the Company’s Common Stock measured over
any rolling 60 calendar day period (i.e., any 60 consecutive calendar days) occurring after the date of the Award and during the Performance
Period. For the avoidance of doubt, no portion of the Award shall vest after the last day of the Performance Period.
The stock price levels set forth above (i.e., the
60-day VWAP for a share) and the number of shares of stock awarded under this Agreement shall be subject to adjustment in connection with
stock splits, reverse stock splits, dividends of additional shares of common stock to the holders of outstanding common stock and other
similar transactions that have an effect on all of the outstanding shares of the Company’s Common Stock with the adjustments to
be determined as provided in Section 10 of the Plan by the Administrator in its reasonable discretion.
Notwithstanding anything to the contrary, in the
event of a Change in Control during the Performance Period, then, to the extent any portion of the Award is then outstanding and unvested,
subject to the Grantee’s Continuous Service through the date of such Change in Control, the unvested portion of the Award shall
vest as follows: if the price per share of Common Stock of the Company paid by an acquiror in connection with a Change of Control equals
or exceeds a stock price target level set forth in the table above with respect to any unvested portion of the Award, as determined in
the sole discretion of the Administrator and without regard to whether such stock price target level has been met over a 60-day period,
then the Award will vest at the percentage for the applicable stock price target level immediately prior to the date of such Change in
Control and the remainder of the unvested Award, if any, shall be forfeited upon the consummation of such Change in Control.
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, any unvested 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.
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.
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RE/MAX Holdings, Inc., |
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a Delaware corporation |
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By: |
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[Name] |
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[Title] |
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[Date] |
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.
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.
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.
Name:
Award Number:
RE/MAX holdings, inc.
RESTRICTED STOCK UNIT INDUCEMENT AWARD AGREEMENT
1. Issuance
of Units. RE/MAX Holdings, Inc., a Delaware corporation (the “Company”), hereby issues to the Grantee (the “Grantee”)
named in the Notice of Restricted Stock Unit Award (the “Notice”) an award (the “Award”) of up to 200% of the
Target Number of Restricted Stock Units Awarded set forth in the Notice (the “Units”), subject to the Notice and this Restricted
Stock Unit Agreement (the “Agreement”). Although the Award is not granted under the Company’s 2023 Omnibus Incentive
Plan (the “Plan”), the Award will be governed in all respects as if issued under the Plan, which is incorporated herein by
reference. Unless otherwise provided herein, the terms in this Agreement shall have the same meaning as those defined in the Plan.
2. Transfer
Restrictions. The Units may not be transferred in any manner other than by will or by the laws of descent and distribution.
3. Conversion
of Units and Issuance of Shares.
(a) General.
Subject to Section 3(b), as soon as administratively feasible (but in all events not more than 60 days) following each Vesting Date
(or other day on which any portion of the Award vests), one Share shall be issued for each Unit that vests, subject to satisfaction of
any required tax or other withholding obligations, with any fractional Unit discarded and not converted into a fractional Share.
(b) Delay
of Issuance of Shares. The Company shall delay the issuance of any Shares under this Section 3 to the extent necessary to comply
with Section 409A(a)(2)(B)(i) of the Code (relating to payments made to certain “specified employees” of certain
publicly-traded companies); in such event, any Shares to which the Grantee would otherwise be entitled during the six (6) month period
following the date of the Grantee’s termination of Continuous Service will be issuable on the first business day following the expiration
of such six (6) month period. Further, the Company shall delay the issuance of any Shares under this Section 3 as provided in
any deferred compensation arrangement that Grantee has entered into and that has been approved by the Company (such arrangement, a “Compensation
Deferral Arrangement”).
4. Right
to Shares and Dividends; Dividend Equivalent Rights. The Grantee shall not have any right in, to or with respect to any of the Shares
(including any voting rights or rights with respect to dividends paid on the Shares) issuable under the Award until the Award is settled
by the issuance of such Shares to the Grantee, except that Dividend Equivalent Rights shall be earned with respect to Units that vest.
The amount of Dividend Equivalent Rights earned with respect to each such Unit that vests shall be equal to the total ordinary cash dividends,
if any, declared on a Share where the record date of the dividend is between the Grant Date of this Award and the date a Share is issued
upon vesting of the Unit. Any Dividend Equivalent Rights earned shall be paid in cash to the Grantee when the Shares subject to the vested
Units to which they relate are issued (provided, that, to the extent issuance of Shares in settlement of the Award is deferred pursuant
to an applicable Compensation Deferral Arrangement, any Dividend Equivalent Rights Grantee is entitled to under this Agreement shall be
paid as set forth in the Compensation Deferral Arrangement). No Dividend Equivalent Rights shall be earned or paid with respect to any
Units that do not vest. Dividend Equivalent Rights shall not accrue interest.
5. Taxes.
(a) Tax
Liability. The Grantee is ultimately liable and responsible for all taxes owed by the Grantee in connection with the Award, regardless
of any action the Company or any Related Entity takes with respect to any tax withholding obligations that arise in connection with the
Award. Neither the Company nor any Related Entity makes any representation or undertaking regarding the treatment of any tax withholding
in connection with any aspect of the Award, including the grant, vesting, assignment, release or cancellation of the Units, the delivery
of Shares, the subsequent sale of any Shares acquired upon vesting and the receipt of any dividends or dividend equivalent rights. The
Company does not commit and is under no obligation to structure the Award to reduce or eliminate the Grantee’s tax liability.
(b) Payment
of Withholding Taxes. Prior to any event in connection with the Award (e.g., vesting or issuance of Shares) that the Company determines
may result in any tax withholding obligation, whether United States federal, state, local or non-U.S., including any social insurance,
employment tax, payment on account or other tax-related obligation (the “Tax Withholding Obligation”), the Grantee must arrange
for the satisfaction of the minimum amount of such Tax Withholding Obligation in a manner acceptable to the Company.
(i) By
Share Withholding. If permissible under Applicable Law, the Grantee authorizes the Company to, upon the exercise of its sole discretion,
withhold from those Shares otherwise issuable to the Grantee the whole number of Shares sufficient to satisfy the minimum applicable Tax
Withholding Obligation. The Grantee acknowledges that the withheld Shares may not be sufficient to satisfy the Grantee’s minimum
Tax Withholding Obligation. Accordingly, the Grantee agrees to pay to the Company or any Related Entity as soon as practicable, including
through additional payroll withholding, any amount of the Tax Withholding Obligation that is not satisfied by the withholding of Shares
described above.
(ii) By
Sale of Shares. The Grantee’s acceptance of this Award constitutes the Grantee’s authorization to the Company and any
brokerage firm determined acceptable to the Company for such purpose to, upon the exercise of Company’s sole discretion, sell on
the Grantee’s behalf a whole number of Shares from those Shares issuable to the Grantee as the Company determines to be appropriate
to generate cash proceeds sufficient to satisfy the minimum applicable Tax Withholding Obligation. Such Shares will be sold on the day
such Tax Withholding Obligation arises or as soon thereafter as practicable. The Grantee will be responsible for all broker’s fees
and other costs of sale, and the Grantee agrees to indemnify and hold the Company harmless from any losses, costs, damages, or expenses
relating to any such sale. To the extent the proceeds of such sale exceed the Grantee’s minimum Tax Withholding Obligation, the
Company agrees to pay such excess in cash to the Grantee. The Grantee acknowledges that the Company or its designee is under no obligation
to arrange for such sale at any particular price, and that the proceeds of any such sale may not be sufficient to satisfy the Grantee’s
minimum Tax Withholding Obligation. Accordingly, the Grantee agrees to pay to the Company or any Related Entity as soon as practicable,
including through additional payroll withholding, any amount of the Tax Withholding Obligation that is not satisfied by the sale of Shares
described above.
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 thirty (30) 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.
6. Entire
Agreement; Governing Law. The Notice, the Plan and this Agreement constitute the entire agreement of the parties with respect to the
subject matter hereof and supersede in their entirety all prior undertakings and agreements of the Company and the Grantee with respect
to the subject matter hereof, and may not be modified adversely to the Grantee’s interest except by means of a writing signed by
the Company and the Grantee. These agreements are to be construed in accordance with and governed by the internal laws of the State of
Colorado without giving effect to any choice of law rule that would cause the application of the laws of any jurisdiction other than
the internal laws of the State of Colorado to the rights and duties of the parties. Should any provision of the Notice or this Agreement
be determined to be illegal or unenforceable, the other provisions shall nevertheless remain effective and shall remain enforceable.
7. Construction.
The captions used in the Notice and this Agreement are inserted for convenience and shall not be deemed a part of the Award for construction
or interpretation. Except when otherwise indicated by the context, the singular shall include the plural and the plural shall include
the singular. Use of the term “or” is not intended to be exclusive, unless the context clearly requires otherwise.
8. Administration
and Interpretation. Any question or dispute regarding the administration or interpretation of the Notice, the Plan or this Agreement
shall be submitted by the Grantee or by the Company to the Administrator. The resolution of such question or dispute by the Administrator
shall be final and binding on all persons.
9. Venue
and Jurisdiction. The parties agree that any suit, action, or proceeding arising out of or relating to the Notice, the Plan or this
Agreement shall be brought exclusively in the United States District Court for Colorado (or should such court lack jurisdiction to hear
such action, suit or proceeding, in a Colorado state court) and that the parties shall submit to the jurisdiction of such court. The parties
irrevocably waive, to the fullest extent permitted by law, any objection the party may have to the laying of venue for any such suit,
action or proceeding brought in such court. THE PARTIES ALSO EXPRESSLY WAIVE ANY RIGHT THEY HAVE OR MAY HAVE TO A JURY TRIAL OF ANY
SUCH SUIT, ACTION OR PROCEEDING. If any one or more provisions of this Section 9 shall for any reason be held invalid or unenforceable,
it is the specific intent of the parties that such provisions shall be modified to the minimum extent necessary to make it or its application
valid and enforceable.
10. Notices.
Any notice required or permitted hereunder shall be given in writing and shall be deemed effectively given upon personal delivery, upon
deposit for delivery by an internationally recognized express mail courier service or upon deposit in the United States mail by certified
mail (if the parties are within the United States), with postage and fees prepaid, addressed to the other party at its address as shown
in these instruments, or to such other address as such party may designate in writing from time to time to the other party.
11. Amendment
and Delay to Meet the Requirements of Section 409A. The Grantee acknowledges that the Company, in the exercise of its sole discretion
and without the consent of the Grantee, may amend or modify this Agreement in any manner and delay the issuance of any Shares issuable
pursuant to this Agreement to the minimum extent necessary to meet the requirements of Section 409A of the Code as amplified by any
Treasury regulations or guidance from the Internal Revenue Service as the Company deems appropriate or advisable. Notwithstanding anything
in this Agreement or the Plan to the contrary, to the extent the Award is determined to be subject to Section 409A of the Code and
Shares will be issued pursuant to the Award on account of such Change in Control, no Change in Control shall be deemed to have occurred
for purposes of this Award unless such Change in Control also constitutes a change in the ownership or effective control of the Company
or a change in the ownership of a substantial portion of the assets of the Company, as those terms are used in Section 409A of the
Code. In addition, the Company makes no representation that the Award will comply with Section 409A of the Code and makes no undertaking
to prevent Section 409A of the Code from applying to the Award or to mitigate its effects on any deferrals or payments made in respect
of the Units. The Grantee is encouraged to consult a tax adviser regarding the potential impact of Section 409A of the Code.
END OF AGREEMENT
Exhibit 10.4
| To: |
[Executive
Officers] |
| |
|
| From: |
Roger
Dow, Lead Independent Director and Compensation Committee Chair |
| |
|
| Re: |
Retention
Bonus Agreement (the “Agreement”) |
In light of the anticipated appointment of a new
Chief Executive Officer of RE/MAX Holdings, Inc. (together with its subsidiaries and corporate affiliates, the “Company”),
the knowledge, expertise and experience of key leaders will be critical in assuring a successful transition and in helping the Company
continue to execute on its strategy. As a result, this Agreement is structured to encourage retention of the Company’s executive
management team given that transition and amidst the highly competitive market for talent, within the real estate and mortgage industries
and, more generally, for seasoned top leadership with the specific expertise possessed by the Company’s Executive Officers.
Retention Bonus
We are offering you an opportunity to earn a bonus
(the “Retention Bonus”), which equals [$ ] (your “Bonus Amount”), as described below.
If you remain employed with the Company and satisfy
the Employment Conditions described below from the date of this Agreement through [___] or if, before such date, your employment is terminated
by the Company without Cause (as defined below), by you for Good Reason (as defined below), or by reason of your death or by the Company
due to your Disability (as defined below) (the first to occur of such dates or events, the “Bonus Date”), then the Company
will pay you a cash lump sum payment equal to the Bonus Amount, less applicable tax withholdings, within 15 days after the Bonus Date.
If your employment with the Company terminates for any other reason prior to the Bonus Date, or if you otherwise fail to satisfy the Employment
Conditions described below, then you will not be paid the Bonus Amount and the opportunity to receive such amount will be forfeited without
consideration.
Employment Conditions
You must remain continuously employed by the Company
for the period provided in this Agreement with respect to the Retention Bonus, with the exception of authorized FMLA leave in accordance
with federal law. The Employment Conditions for receipt of the Retention Bonus also include compliance with the Restrictive Covenants
contained herein through the date of payment of the Retention Bonus, and, in the event of noncompliance with any Restrictive Covenant,
the Retention Bonus will not be paid and the opportunity to receive such amount will be forfeited without consideration. In addition,
any act or omission that constitutes Cause may result in disciplinary action, including termination of employment.
The offer of a Retention Bonus does not change
the at-will nature of our employment relationship, which means that both you and the Company have the right to terminate your employment
at any time, with or without advance notice and with or without cause.
Restrictive Covenants
(a) Confidentiality.
In the course of Employee’s employment by the Company, Employee has had access to Confidential Information (as defined below) of
the Company and its franchisees, agents, and sales associates (collectively, the “Company Group”). Employee agrees to maintain
the strict confidentiality of all Confidential Information. For purposes of this Agreement, "Confidential Information" shall
mean all non-public information and materials of or pertaining to the Company Group in any form or medium including all notes, analyses,
compilations, copies, documents, recordings, summaries, reproductions, copies, translations, electronic copies or versions (in any medium
including video, email, audio, video, or voicemail) regardless of where the same may have been lodged including on any personal devices
of Employee, including information and materials: generated by Employee or third parties; received by the Company Group from third parties;
concerning or pertaining to the Company Group or its business in any respect including information as to the Company Group’s business
practices, operations, prospects, franchisees and franchisee agreements; or legal information and advice. Confidential Information shall
include, without limitation, information: protected by any and all non-disclosure agreements signed by Employee during employment; concerning
claims against or by the Company Group, legal issues and advice, or other information or communications acquired by Employee in your capacity
as an employee of the Company; contained in the Company Group’s financial records; concerning regional, agent and franchise agreements,
prospects, information technology techniques and arrangements, processes and procedures for creating IT related resources, contemplated
products and services and agreement terms; concerning past acquisitions (closed or not closed) and acquisitions planned or considered,
concerning data and issues related to public filings, and concerning purchasing information and other business, marketing, sales, strategic
and operational data of the Company Group. Confidential Information includes all other information and materials which are of a propriety
or confidential nature, even if they are not marked as such. This provision shall survive indefinitely including in the event of any termination
of your employment or this Agreement.
(b) Confidentiality
of Agreement. Except to the extent that this Agreement or its terms have been publicly disclosed by the Company, Employee shall keep
the fact of and payment terms of this Agreement strictly confidential and shall not disclose them to anyone other than Employee’s
spouse, legal or tax advisors, or as may be required by law. Prior to disclosing the terms of this agreement to any spouse, or any legal
or tax advisor, Employee shall obtain such individual(s) agreement to be bound by this confidentiality provision.
(c) Notice
Under the Defend Trade Secrets Act of 2016. The Company provides Employee with notice that 18 U.S.C. § 1833(b)(1) states
as follows:
An individual shall not be held criminally
or civilly liable under any Federal or State trade secret law for the disclosure of a trade secret that—(A) is made—(i) in
confidence to a Federal, State, or local government official, either directly or indirectly, or to an attorney; and (ii) solely for
the purpose of reporting or investigating a suspected violation of law; or (B) is made in a complaint or other document filed in
a lawsuit or other proceeding, if such filing is made under seal.
Accordingly, notwithstanding anything
to the contrary in this Agreement or in any confidentiality agreement Employee has signed with the Company, Employee understands that
he has the right to disclose in confidence trade secrets to federal, state, and local government officials, or to an attorney, for the
sole purpose of reporting or investigating a suspected violation of law. Employee further understands that he also has the right to disclose
trade secrets in a document filed in a lawsuit or other proceeding, but only if the filing is made under seal and protected from public
disclosure. Employee understands and acknowledges that nothing in this Agreement or in any confidentiality agreement Employee signed with
the Company is intended to conflict with 18 U.S.C. § 1833(b) or create liability for disclosures of trade secrets that are expressly
allowed by 18 U.S.C. § 1833(b).
(d) Intellectual
Property. Employee recognizes and agrees that all copyrights, trademarks, patents, and other intellectual property rights to works
or marks arising in, from or in connection with Employee’s employment by the Company, are the sole and exclusive property of the
Company. Employee agrees not to assert any such rights against the Company or any third party. Employee agrees to assign, and hereby does
assign, to the Company all rights, if any, in or to such works or marks that may have accrued to Employee during Employee’s employment.
(e) Non-Disparagement.
Employee agrees not to defame or disparage the Company, their subsidiaries, or affiliates, or any of their past, present or future partners,
members, directors, accounting firms, third party investigators, attorneys, shareholders, officers, employees, franchisees or sales associates,
agents, or family members of officers or directors. This provision shall not prohibit Employee from making any statements or taking any
actions required by law, reporting any actions or inactions to a governmental agency that Employee believes to be unlawful, or participating
in or cooperating with a governmental investigation. This provision shall not be interpreted to require or encourage Employee to make
any misrepresentations. In response to requests for references from prospective employers, the Company will provide the dates of Employee’s
employment and positions held.
(f) Reasonableness
of Restrictive Covenants. Employee acknowledges that the Restrictive Covenants in this section are necessary to protect the Company’s
trade secrets, business relationships, goodwill and shareholder value. Employee acknowledges that the Company conducts the Company’s
business throughout the United States and internationally, that the above restrictive covenants cannot be meaningfully restricted geographically,
and that the covenants only reasonably restrict Employee from competing in any market – domestic or foreign – in which the
Company conducts the Company’s business. Without altering the meaning of the foregoing covenants, both the Company and Employee
acknowledge that the above restrictive covenants do not prevent Employee from becoming employed in a similar position in a business that
is not competitive with the Company’s business.
Other Details
This Agreement is independent of the Company’s
other compensation programs and Company policies, including its Severance Policy and Corporate Bonus Program. All payments under this
Agreement are subject to applicable tax withholding.
Section 409A
This Agreement is intended to comply with Section 409A
of the Internal Revenue Code and the rules thereunder (“Section 409A”) or an exemption under Section 409A and
shall be construed and interpreted in a manner that is consistent with the requirements for avoiding additional taxes or penalties under
Section 409A. To the extent that the Compensation Committee determines that this Agreement or a Retention Bonus may not be exempt
from Section 409A, then, if Employee is deemed to be a “specified employee” within the meaning of Section 409A,
as determined by the Compensation Committee, at a time when Employee becomes eligible for payment of a Retention Bonus upon Employee’s
“separation from service” within the meaning of Section 409A, then to the extent necessary to prevent any accelerated
or additional tax under Section 409A, such payment will be delayed until the earlier of: (a) the date that is six months following
Employee’s separation from service and (b) Employee’s death. Notwithstanding the foregoing, the Company makes no representations
that the payments and benefits provided under this Agreement are exempt from or compliant with Section 409A and in no event shall
the Company be liable for all or any portion of any taxes, penalties, interest or other expenses that may be incurred by Employee on account
of non-compliance with Section 409A.
Definitions
For the purpose of this Agreement:
“Cause” means Employee’s
(i) willful dishonesty, theft, disclosure of trade secrets, and/or embezzlement from the Company or an affiliate determined by the
Compensation Committee in good faith to be materially injurious to the business or reputation of the Company or an affiliate, (ii) commission
of a willful felonious act while in the employment of the Company, or (iii) willful engagement in other activities determined by
the Compensation Committee in good faith to be materially injurious to the business or reputation of the Company or an affiliate; provided
that for these purposes, no act, or failure to act, on the part of Employee shall be deemed “willful” unless the Compensation
Committee finds that the act or failure to act was done, or omitted to be done, by Employee in other than good faith and without reasonable
belief that the act or omission was in the best interest of the Company.
“You” and “Employee”
refer to you, the undersigned employee.
“Disability” has the meaning
given to it in the RE/MAX Holdings, Inc. 2023 Omnibus Incentive Plan.
“Good Reason” means, in
each case without Employee’s consent, (i) a diminution in the combined value of Employee’s base salary, annual bonus
opportunity, and annual long-term incentive opportunity (based on the grant date fair value if in the form of equity-based incentives
and based on the “target” cash potential if in the form of cash-based incentives) or a diminution of more than 10% in any
such component of compensation, (ii) a material diminution in Employee’s title, (iii) a change of more than 30 miles in
the geographic location at which Employee must perform Employee’s services for the Company (other than a change to require that
Employee work at the Company’s principal place of business, 5075 S Syracuse St, Denver, Colorado if Employee was previously allowed
to work from home), or (iv) a material breach by the Company of any material written agreement between Employee and the Company.
Employee’s continued employment shall not constitute consent to, or a waiver of rights with respect to, any act or failure to act
constituting Good Reason hereunder; provided, however, none of these events or conditions shall constitute Good Reason unless: (x) Employee
provides the Company with written objection to the event or condition within 60 days following the date Employee becomes first becomes
aware of such event or condition; (y) the Company does not reverse or otherwise cure the event or condition within 30 days of
receiving that written objection; and (z) Employee terminates Employee’s employment within 30 days following the expiration
of such 30-day cure period.
Agreement
By signing below, you agree to be bound by the
terms of this Agreement. The offer of this Retention Bonus Agreement will expire unless signed by [___].
ACCEPTED AND AGREED TO BY EMPLOYEE:
| ACCEPTED AND AGREED TO BY COMPANY: |
| |
| BY: |
|
|
|
| |
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Date |
| NAME: |
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| TITLE: |
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Exhibit 99.1
RE/MAX HOLDINGS, INC. NAMES ERIK CARLSON
CEO AND BOARD MEMBER
DENVER, Nov. 13, 2023 — RE/MAX Holdings, Inc.
(the “Company” or “RE/MAX Holdings”) (NYSE: RMAX), parent company of RE/MAX, one of the world's leading franchisors
of real estate brokerage services, and of Motto Mortgage, the first national mortgage brokerage franchise brand in the U.S., today announced
that following a comprehensive search, the Company’s Board of Directors has appointed Erik Carlson as Chief Executive Officer and
a member of the RE/MAX Holdings Board of Directors, effective today.
Mr. Carlson was most recently President and CEO of DISH Network
Corporation (“DISH”), a Fortune 200 connectivity company, where he ran DISH’s two largest businesses, DISH TV
and SLING TV. In that role, he oversaw the company’s day-to-day operations, managing over $15 billion in revenue, and was instrumental
in successful acquisitions, including that of Boost Mobile. He also serves on the DISH Board. Mr. Carlson succeeds Stephen Joyce,
RE/MAX Holdings CEO, who served on an interim basis. Mr. Joyce will remain on the Company’s Board of Directors.
RE/MAX Holdings Chairman of the Board and Co-Founder Dave Liniger said:
“Erik is the ideal executive to take over as the new RE/MAX Holdings CEO, having excelled in various operational, customer-centric
and sales roles at DISH. He is a strong, well-rounded leader with decades-long experience overseeing large businesses and managing high-performance
teams in a disruptive industry, with a self-described ‘obsessive focus on the customer,’ all of which makes him uniquely qualified
to lead RE/MAX Holdings through its next phase of growth.”
Mr. Liniger continued: “We thank Steve for his contributions
as our CEO and we look forward to his continued involvement as a director on the RE/MAX Holdings Board.”
Mr. Carlson commented: “I am excited
to start this next chapter in my career as CEO of RE/MAX Holdings, and I am honored to be part of the all-time global leader in its industry,
a company whose entrepreneurial spirit I have long admired. Dave and Gail Liniger founded and have built an enduring real estate institution
with great brands and highly productive networks that span the world. I look forward to joining the RE/MAX Holdings team and applying
my operational expertise as well as my experience working with local businesses and serving local communities to further extend the Company’s
success.”
During Mr. Carlson’s tenure as President and CEO, DISH won
recognition for customer satisfaction for six consecutive years. He also was a key driver behind the DISH Cares initiative, DISH’s
corporate citizenship effort focused on “Our People, Our Communities and Our Planet.” Prior to becoming President and CEO
of DISH in 2017, Mr. Carlson held several other leadership roles at the company, including President and Chief Operating Officer,
overseeing day-to-day operations and managing DISH’s In-Home services and customer service centers. Early in his career, he led
DISH’s indirect sales operations. Mr. Carlson is a DISH veteran of more than two decades, having joined the company in
1995 after graduating from Bradley University. He is a Denver resident and a member of the Downtown Denver Partnership Board.
Notice of Issuance of Inducement Grants Under NYSE Rule 303A.08
The Company also announced awards of restricted stock units (“RSUs”)
to Mr. Carlson in connection with his appointment as the Company’s Chief Executive Officer.
The awards to Mr. Carlson consist of 287,364 time-based RSUs and
a target number of 290,323 performance-based RSUs. For the time-based RSUs, 93,815 are scheduled to vest on November 13, 2024, and
the remaining 193,549 time-based RSUs are scheduled to vest in three equal installments on March 1, 2025, March 1, 2026, and
March 1, 2027. The performance-based award vests based upon the price of RE/MAX Holdings, Inc. stock between the grant date
and December 31, 2027, and the number of shares that may be earned will vary between 0% and 200% of the target number of performance-based
RSUs.
The RSU awards were granted outside of the RE/MAX Holdings, Inc.
2023 Omnibus Incentive Plan (the “Plan”) but will be governed as if they were issued under the Plan. Vesting of the RSUs is
subject to the terms and conditions set forth in the applicable award agreements and the Plan. The RSU awards were approved by the Compensation
Committee of the Board of Directors in reliance on the employment inducement exemption under NYSE Listed Company Manual Rule 303A.08,
which requires public announcement of the award.
# # #
About RE/MAX Holdings, Inc.
RE/MAX Holdings, Inc. (NYSE: RMAX) is one
of the world’s leading franchisors in the real estate industry, franchising real estate brokerages globally under the RE/MAX®
brand, and mortgage brokerages within the U.S. under the Motto® Mortgage brand. RE/MAX was founded in 1973 by Dave and
Gail Liniger, with an innovative, entrepreneurial culture affording its agents and franchisees the flexibility to operate their businesses
with great independence. Now with more than 140,000 agents in over 9,000 offices across more than 110 countries and territories, nobody
in the world sells more real estate than RE/MAX, as measured by total residential transaction sides. Dedicated to innovation and change
in the real estate industry, RE/MAX launched Motto Franchising, LLC, a ground-breaking mortgage brokerage franchisor, in 2016. Motto Mortgage
has grown to over 225 offices across more than 40 states.
Forward-Looking Statements
This press release includes
"forward-looking statements" within the meaning of the "safe harbor" provisions of the United States Private Securities
Litigation Reform Act of 1995. Forward-looking statements are often identified by the use of words such as "believe," "intend,"
"expect," "estimate," "plan," "outlook," "project," "anticipate," "may,"
"will," "would" and other similar words and expressions that predict or indicate future events or trends that are
not statements of historical matters. Forward-looking statements include statements related to: the Company’s growth and success,
the incoming CEO’s leadership of the Company, and Mr. Joyce’s continued service on the Board of Directors. Forward-looking
statements should not be read as a guarantee of future performance or results and will not necessarily accurately indicate the times at
which such performance or results may be achieved. Forward-looking statements are based on information available at the time those statements
are made and/or management’s good faith belief as of that time with respect to future events and are subject to risks and uncertainties
that could cause actual performance or results to differ materially from those expressed in or suggested by the forward-looking statements.
These risks and uncertainties include, without limitation, (1) changes in the real estate market or interest rates and availability
of financing, (2) changes in business and economic activity in general, (3) the Company’s ability to attract and retain
quality franchisees, (4) the Company’s franchisees’ ability to recruit and retain real estate agents and mortgage loan
originators, (5) changes in laws and regulations, (6) the Company’s ability to enhance, market, and protect its brands,
including the RE/MAX and Motto Mortgage brands, (7) the Company’s ability to implement its technology initiatives, and (8) risks
related to the Company’s CEO transition, (9) fluctuations in foreign currency exchange rates, and (10) those risks and
uncertainties described in the sections entitled “Risk Factors” and “Management’s Discussion and Analysis of Financial
Condition and Results of Operations” in the most recent Annual Report on Form 10-K and Quarterly Reports on Form 10-Q
filed with the Securities and Exchange Commission (“SEC”) and similar disclosures in subsequent periodic and current reports
filed with the SEC, which are available on the investor relations page of the Company’s website at www.remaxholdings.com and
on the SEC website at www.sec.gov. Readers are cautioned not to place undue reliance on forward-looking statements, which speak only as
of the date on which they are made. Except as required by law, the Company does not intend, and undertakes no obligation, to update this
information to reflect future events or circumstances.
| Investor Contact: | |
Media Contact: |
| Andy Schulz | |
Kimberly Golladay |
| 303-796-3287 | |
303-224-4258 |
| aschulz@remax.com | |
kgolladay@remax.com |
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-Name Securities Act
-Number 230
-Section 425
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RE MAX (NYSE:RMAX)
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RE MAX (NYSE:RMAX)
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