Registration No. 333-_______
Filed January 27, 1998
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-----------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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OCWEN FINANCIAL CORPORATION
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(Exact Name of Registrant as specified in its Articles of Incorporation)
FLORIDA 65-0039856
------------------------ ---------------------------------
(State of incorporation) (IRS Employer Identification No.)
The Forum, Suite 1000
1675 Palm Beach Lakes Boulevard
WEST PALM BEACH, FLORIDA 33401
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(Address of principal executive offices, including zip code)
1991 NON-QUALIFIED STOCK OPTION PLAN
1996 STOCK PLAN FOR DIRECTORS
-------------------------------------------------
(Full Title of the Plans)
Copies to:
William C. Erbey
President and Chief Executive Officer Gerard L. Hawkins, Esq.
Ocwen Financial Corporation Kenneth B. Tabach, Esq.
The Forum, Suite 1000 Elias, Matz, Tiernan & Herrick L.L.P.
1675 Palm Beach Lakes Boulevard 734 15th Street, N.W.
West Palm Beach, Florida 33401 Washington, D.C. 20005
(561) 681-8000 (202) 347-0300
- ------------------------------------
(Name, address, and telephone number
of agent for service)
Page 1 of 11 pages Index to
Exhibits is located on page 8.
<PAGE>
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
Title of Proposed Proposed
Securities Maximum Maximum Amount of
to be Amount to be Offering Price Aggregate Registration
Registered Registered(1) Per Share Offering Price Fee
- -----------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par
value $.01 1,267,814 $ 9.80(3) $ 12,424,577(3) $3,665.25
Common Stock, par
value $.01 11,828,108 $24.97(4) $295,347,857(4) 87,127.62
---------- ----- ----------- ---------
Total 13,095,922(2) $307,772,434 $90,792.87
========== =========== =========
- -----------------------------------------------------------------------------------
</TABLE>
(1) Together with an indeterminate number of additional shares which may be
necessary to adjust the number of shares reserved for issuance pursuant to the
Ocwen Financial Corporation (the "Company" or the "Registrant") 1991
Non-Qualified Stock Option Plan (the "Option Plan") and the 1996 Stock Plan for
Directors (the "Directors Plan" and together, the "Plans") as a result of a
stock split, stock dividend or similar adjustment of the outstanding common
stock, $.01 par value per share (the "Common Stock"), of the Company.
(2) Represents 12,605,814 currently reserved for issuance pursuant to the Option
Plan and 490,108 currently reserved for issuance pursuant to the Directors Plan.
(3) Estimated solely for the purpose of calculating the registration fee, which
has been calculated pursuant to Rule 457(h) promulgated under the Securities Act
of 1933, as amended ("Securities Act"). The Proposed Maximum Offering Price Per
Share is equal to the weighted average exercise price for options to purchase
1,267,814 shares of Common Stock which are outstanding under the Option Plan as
of the date hereof.
(4) Estimated solely for the purposes of calculating the registration fee in
accordance with Rule 457(c) promulgated under the Securities Act. The Proposed
Maximum Offering Price Per Share for 11,338,000 shares for which stock options
have not been granted under the Option Plan and the 490,108 shares to be offered
under the Directors Plan is equal to the average of the high and low prices of
the Common Stock of the Company on January 21, 1998 as reported by the New York
Stock Exchange.
--------------------------
This Registration Statement shall become effective automatically upon
the date of filing in accordance with Section 8(a) of the Securities Act and 17
C.F.R. Section 230.462.
2
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed or to be filed with the Securities and
Exchange Commission (the "Commission") are incorporated by reference in this
Registration Statement:
(a) The Annual Report on Form 10-K of the Company for the year
ended December 31, 1996;
(b) All reports filed by the Company pursuant to Sections
13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), since the end of the fiscal year covered by the
Company's Annual Report on Form 10-K referred to in clause (a) above;
(c) The description of the Common Stock of the Company
contained in the Company's Registration Statement on Form 8-A
(Commission File No. 1-3219) filed with the Commission on July 25,
1997;
(d) All documents filed by the Company pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Exchange Act after the date hereof and
prior to the filing of a post-effective amendment which indicates that
all securities offered have been sold or which deregisters all
securities then remaining unsold.
Any statement contained in this Registration Statement, or in a
document incorporated or deemed to be incorporated by reference herein, shall be
deemed to be modified or superseded for purposes of this Registration Statement
to the extent that a statement contained herein, or in any other subsequently
filed document which also is or is deemed to be incorporated by reference
herein, modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable since the Company's Common Stock is registered under
Section 12 of the Exchange Act.
ITEM. 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
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ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Article V of the Company's Articles of Incorporation provides as
follows:
INDEMNIFICATION
This corporation shall, to the fullest extent permitted by the
provisions of Fla. Stat. Section 607.0850, as the same may be amended and
supplemented, indemnify any and all persons whom it shall have power to
indemnify under said section from and against any and all of the expenses,
liabilities, or other matters referred to in or covered by said section, and the
indemnification provided for herein shall not be deemed exclusive of any other
rights to which those indemnified may be entitled under any Bylaw, agreement,
vote of stockholders or disinterested directors or otherwise, both as to action
in his official capacity and as to action in another capacity while holding such
office, and shall continue as to a person who has ceased to be a director,
officer, employee, or agent and shall inure to the benefit of the heirs,
executors, and administrators of such a person.
Section 607.0850 of the Florida Business Corporation Act provides as
follows:
607.0850 INDEMNIFICATION OF OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS.
- -- (1) A corporation shall have the power to indemnify any person who was or is
a party to any proceeding (other than an action by, or in the right of, the
corporation), by reason of the fact that he is or was a director, officer,
employee, or agent of the corporation or is or was serving at the request of the
corporation as a director, officer, employee, or agent of another corporation,
partnership, joint venture, trust, or other enterprise against liability
incurred in connection with such proceeding, including any appeal thereof, if he
acted in good faith and in a manner he reasonably believed to be in, or not
opposed to, the best interests of the corporation and, with respect to any
criminal action or proceeding, had no reasonable cause to believe his conduct
was unlawful. The termination of any proceeding by judgment, order, settlement,
or conviction or upon a plea of nolo contendere or its equivalent shall not, of
itself, create a presumption that the person did not act in good faith and in a
manner which he reasonably believed to be in, or not opposed to, the best
interests of the corporation or, with respect to any criminal action or
proceeding, had reasonable cause to believe that his conduct was unlawful.
(2) A corporation shall have power to indemnify any person, who was or
is a party to any proceeding by or in the right of the corporation to procure a
judgment in its favor by reason of the fact that he is or was a director,
officer, employee, or agent of the corporation or is or was serving at the
request of the corporation as a director, officer, employee, or agent of another
corporation, partnership, joint venture, trust, or other enterprise, against
expenses and amounts paid in settlement not exceeding, in the judgment of the
board of directors, the estimated expense of litigating the proceeding to
conclusion, actually and reasonably incurred in connection with the defense or
settlement of such proceeding, including any appeal thereof. Such
indemnification shall be authorized if such person acted in good faith and in a
manner he reasonably believed to be in, or not opposed to, the best interests of
the corporation, except that no indemnification shall be made under this
subsection in respect of any claim, issue, or matter as to which such person
shall have
4
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been adjudged to be liable unless, and only to the extent that, the court in
which such proceeding was brought, or any other court of competent jurisdiction,
shall determine upon application that, despite the adjudication of liability but
in view of all circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which such court shall deem proper.
(3) To the extent that a director, officer, employee, or agent of a
corporation has been successful on the merits or otherwise in defense of any
proceeding referred to in subsection (1) or subsection (2), or in defense of any
claim, issue, or matter therein, he shall be indemnified against expenses
actually and reasonably incurred by him in connection therewith.
(4) Any indemnification under subsection (1) or subsection (2), unless
pursuant to a determination by a court, shall be made by the corporation only as
authorized in the specific case upon a determination that indemnification of the
director, officer, employee, or agent is proper in the circumstances because he
has met the applicable standard of conduct set forth in subsection (1) or
subsection (2). Such determination shall be made:
(a) By the board of directors by a majority vote of a quorum
consisting of directors who were not parties to such proceeding;
(b) If such a quorum is not obtainable or, even if obtainable,
by majority vote of a committee duly designated by the board of directors (in
which directors who are parties may participate) consisting solely of two or
more directors not at the time parties to the proceeding;
(c) By independent legal counsel:
(1) Selected by the board of directors prescribed in paragraph (a) or
the committee prescribed in paragraph (b); or
(2) If a quorum of the directors cannot be obtained for paragraph (a)
and the committee cannot be designated under paragraph (b), selected by majority
vote of the full board of directors (in which directors who are parties may
participate); or
(d) By the shareholders by a majority vote of a quorum
consisting of shareholders who were not parties to such proceeding or, if no
such quorum is obtainable, by a majority vote of shareholders who were not
parties to such proceeding.
(5) Evaluation of the reasonableness of expenses and authorization of
indemnification shall be made in the same manner as the determination that
indemnification is permissible. However, if the determination of permissibility
is made by independent legal counsel, persons specified by paragraph (4)(c)
shall evaluate the reasonableness of expenses and may authorize indemnification.
(6) Expenses incurred by an officer or director in defending a civil or
criminal proceeding may be paid by the corporation in advance of the final
disposition of such
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proceeding upon receipt of an undertaking by or on behalf of such director or
officer to repay such amount if he is ultimately found not to be entitled to
indemnification by the corporation pursuant to this section. Expenses incurred
by other employees and agents may be paid in advance upon such terms or
conditions that the board of directors deems appropriate.
(7) The indemnification and advancement of expenses provided pursuant
to this section are not exclusive, and a corporation may make any other or
further indemnification or advancement of expenses of any of its directors,
officers, employees, or agents, under any bylaw, agreement, vote of shareholders
or disinterested directors, or otherwise, both as to action in his official
capacity and as to action in another capacity while holding such office.
However, indemnification or advancement of expenses shall not be made to or on
behalf of any director, officer, employee, or agent if a judgment or other final
adjudication establishes that his actions, or omissions to act, were material to
the cause of action so adjudicated and constitute:
(a) A violation of the criminal law, unless the director,
officer, employee, or agent had reasonable cause to believe his conduct was
lawful or had no reasonable cause to believe his conduct was unlawful;
(b) A transaction from which the director, officer, employee,
or agent derived an improper personal benefit;
(c) In the case of a director, a circumstance under which the
liability provisions of s.607.0834 are applicable; or
(d) Willful misconduct or a conscious disregard for the best
interests of the corporation in a proceeding by or in the right of the
corporation to procure a judgment in its favor or in a proceeding by or in the
right of a shareholder.
(8) Indemnification and advancement of expenses as provided in this
section shall continue as, unless otherwise provided when authorized or
ratified, to a person who has ceased to be a director, officer, employee, or
agent and shall inure to the benefit of the heirs, executors, and administrators
of such a person, unless otherwise provided when authorized or ratified.
(9) Unless the corporation's articles of incorporation provide
otherwise, notwithstanding the failure of a corporation to provide
indemnification, and despite any contrary determination of the board or of the
shareholders in the specific case, a director, officer, employee, or agent of
the corporation who is or was a party to a proceeding may apply for
indemnification or advancement of expenses, or both, to the court conducting the
proceeding, to the circuit court, or to another court of competent jurisdiction.
On receipt of an application, the court, after giving notice that it considers
necessary, may order indemnification and advancement of expenses, including
expenses incurred in seeking court-ordered indemnification or advancement of
expenses, if it determines that:
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(a) The director, officer, employee, or agent is entitled to
mandatory indemnification under subsection (3), in which case the court shall
also order the corporation to pay the director reasonable expenses incurred in
obtaining court-ordered indemnification or advancement of expenses;
(b) The director, officer, employee or agent is entitled to
indemnification or advancement of expenses, or both, by virtue of the exercise
by the corporation of its power pursuant to subsection (7); or
(c) The director, officer, employee, or agent is fairly and
reasonably entitled to indemnification or advancement of expenses, or both, in
view of all the relevant circumstances, regardless of whether such person met
the standard of conduct set forth in subsection (1), subsection (2), or
subsection (7).
(10) For purposes of this section, the term "corporation" includes, in
addition to the resulting corporation, any constituent corporation (including
any constituent of a constituent) absorbed in a consolidation or merger, so that
any person who is or was a director, officer, employee, or agent of a
constituent corporation, or is or was serving at the request of a constituent
corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust, or other enterprise, is in the same position
under this section with respect to the resulting or surviving corporation as he
would have with respect to such constituent corporation if its separate
existence had continued.
(11) For purposes of this section:
(a) The term "other enterprises" includes employee benefit plans;
(b) The term "expenses" includes counsel fees, including those for
appeal;
(c) The term "liability" includes obligations to pay for a
judgment, settlement, penalty, find (including an excise tax assessed with
respect to any employee benefit plan), and expenses actually and reasonably
incurred with respect to a proceeding;
(d) The term "proceeding" includes any threatened, pending, or
completed action, suit, or other type of proceeding, whether civil, criminal,
administrative, or investigative and whether formal or informal;
(e) The term "agent" includes a volunteer;
(f) The term "serving at the request of the corporation" includes
any service as a director, officer, employee, or agent of the corporation that
imposes duties on such persons, including duties relating to an employee benefit
plan and its participants or beneficiaries; and
(g) The term "not opposed to the best interest of the corporation"
describes the actions of a person who acts in good faith and in a manner he
reasonably believes to be in the best interests of the participants and
beneficiaries of an employee benefit plan.
7
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(12) A corporation shall have power to purchase and maintain insurance
on behalf of any person who is or was a director, officer, employee, or agent of
the corporation or is or was serving at the request of the corporation as a
director, officer, employee, or agent of another corporation, partnership, joint
venture, trust, or other enterprise against any liability asserted against him
and incurred by him in any such capacity or arising out of his status as such,
whether or not the corporation would have the power to indemnify him against
such liability under the provisions of this section.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable since no restricted securities will be reoffered or
resold pursuant to this Registration Statement.
ITEM 8. EXHIBITS
The following exhibits are filed with or incorporated by reference into
this Registration Statement on Form S-8 (numbering corresponds to Exhibit Table
in Item 601 of Regulation S-K):
No. Exhibit Page
--- ------- ----
4 Common Stock Certificate* --
5 Opinion of Elias, Matz, Tiernan & Herrick E-1
L.L.P. as to the legality of the securities
23.1 Consent of Elias, Matz, Tiernan & Herrick --
L.L.P. (contained in the opinion included
as Exhibit 5)
23.2 Consent of Price Waterhouse LLP E-3
24 Power of attorney for any subsequent --
amendments is located in the signature pages
99.1 1991 Non-Qualified Stock Option Plan, as amended E-4
99.2 1996 Stock Plan for Directors, as amended E-12
- ----------
* Incorporated by reference from the Company's Registration Statement on
Form S-1 (Commission File No. 333-5153) declared effective by the Commission on
September 25, 1996, as amended.
8
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ITEM 9. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
1. To file, during any period in which offers or sales are being made,
a post-effective amendment to this Registration Statement (i) to include any
prospectus required by Section 10(a)(3) of the Securities Act, (ii) to reflect
in the prospectus any facts or events arising after the effective date of the
Registration Statement (or the most recent post-effective amendment thereof)
which, individually or in the aggregate, represent a fundamental change in the
information set forth in the Registration Statement, and (iii) to include any
material information with respect to the plan of distribution not previously
disclosed in the Registration Statement or any material change in such
information in the Registration Statement; provided, however, that clauses (i)
and (ii) do not apply if the information required to be included in a
post-effective amendment by those clauses is contained in periodic reports filed
by the Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act
that are incorporated by reference in the Registration Statement.
2. That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
3. To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
4. That, for the purposes of determining any liability under the
Securities Act, each filing of the Registrant's annual report pursuant to
Section 13(a) or Section 15(d) of the Exchange Act that is incorporated by
reference in the Registration Statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
5. Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions or otherwise, the
Registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the questions whether such indemnification by it is against public
policy expressed in the Securities Act and will be governed by the final
adjudication of such issue.
9
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized in the city of West Palm Beach, State of Florida, on the 26th day of
January 1998.
OCWEN FINANCIAL CORPORATION
By: /s/ WILLIAM C. ERBEY
-------------------------------------
William C. Erbey, President and
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated. Each person whose signature appears below
hereby makes, constitutes and appoints William C. Erbey his true and lawful
attorney, with full power to sign for such person and in such person's name and
capacity indicated below, and with full power of substitution any and all
amendments to this Registration Statement, hereby ratifying and confirming such
person's signature as it may be signed by said attorney to any and all
amendments.
/s/ WILLIAM C. ERBEY January 26, 1998
- ----------------------------------------
William C. Erbey
Chairman, President and
Chief Executive Officer
(Principal Executive Officer)
/s/ THOMAS F. LEWIS January 26, 1998
- ----------------------------------------
Hon. Thomas F. Lewis
Director
/s/ W.C. MARTIN January 26, 1998
- ----------------------------------------
W.C. Martin
Director
10
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/s/ HOWARD H. SIMON January 26, 1998
- ----------------------------------------
Howard H. Simon
Director
/s/ BARRY N. WISH January 26, 1998
- ----------------------------------------
Barry N. Wish
Director
/s/ MARK S. ZEIDMAN January 26, 1998
- ----------------------------------------
Mark S. Zeidman
Senior Vice President and
Chief Financial Officer
(principal financial and
accounting officer)
11
EXHIBIT 5
Law Offices
ELIAS, MATZ, TIERNAN & HERRICK L.L.P.
12th Floor 734 15th Street,
N.W.
Washington, D.C. 20005
Telephone (202) 347-0300
January 27, 1998
Board of Directors
Ocwen Financial Corporation
The Forum, Suite 1000
1675 West Palm Beach Boulevard
West Palm Beach, Florida 33401
Re: Registration Statement on Form S-8
13,095,922 Shares of Common Stock
Ladies and Gentlemen:
We have acted as special counsel to Ocwen Financial Corporation, a
Florida corporation (the "Corporation"), in connection with the preparation and
filing with the Securities and Exchange Commission pursuant to the Securities
Act of 1933, as amended, of a Registration Statement on Form S-8 (the
"Registration Statement"), relating to the registration of up to 490,108 shares
of common stock, par value $.01 per share ("Common Stock"), to be issued under
the Corporation's 1996 Stock Plan for Directors (the "Directors Plan") and up to
12,605,814 shares of Common Stock to be issued pursuant to the Corporation's
1991 Non-Qualified Stock Option Plan (the "Option Plan") upon the exercise of
stock options (collectively, the "Shares"). The Registration Statement also
registers an indeterminate number of additional shares which may be necessary
under the plans to adjust the number of shares reserved thereby for issuance as
the result of a stock split, stock dividend or similar adjustment of the
outstanding Common Stock of the Corporation. We have been requested to furnish
an opinion to be included as an exhibit to the Registration Statement.
In this regard, we have reviewed the Registration Statement, the
Restated Articles of Incorporation and Bylaws of the Corporation, the Directors
Plan, the Option Plan, a specimen stock certificate evidencing the Common Stock
of the Corporation and such other corporate records and documents as we have
deemed appropriate for the purposes of this opinion. We are relying upon the
originals, or copies certified or otherwise identified to our satisfaction, of
the corporate records of the Corporation and such other instruments,
certificates and representations of public officials, officers and
representatives of the
<PAGE>
Board of Directors
January 27, 1998
Page 2
Corporation as we have deemed applicable or relevant as a basis for the opinion
set forth below. In addition, we have assumed, without independent verification,
the genuineness of all signatures and the authenticity of all documents
furnished to us and the conformance in all respects of copies to originals.
Furthermore, we have made such factual inquiries and reviewed such laws as we
determined to be relevant for the purposes of this opinion.
For purposes of this opinion, we have also assumed that (i) the shares
of Common Stock issuable pursuant to stock options granted under the terms of
the Option Plan will continue to be validly authorized on the dates the Common
Stock is issued pursuant to such stock options; (ii) the shares of Common Stock
issuable pursuant to the Directors Plan will continue to be validly authorized
on the dates the Common Stock is issued in accordance with the terms of such
plan; (iii) on the dates the stock options are exercised, the stock options
granted under the terms of the Option Plan will constitute valid, legal and
binding obligations of the Corporation and will (subject to applicable
bankruptcy, moratorium, insolvency, reorganization and other laws and legal
principles affecting the enforceability of creditors' rights generally) be
enforceable as to the Corporation in accordance with their terms; (iv) no change
occurs in applicable law or the pertinent facts; and (v) the provisions of "blue
sky" and other securities laws as may be applicable have been complied with to
the extent required.
Based on the foregoing, and subject to the assumptions set forth
herein, we are of the opinion as of the date hereof that the shares of Common
Stock to be issued pursuant to the Directors Plan and the Option Plan when
issued and sold pursuant to the Directors Plan or the Option Plan and upon
receipt of the consideration required thereby, will be legally issued, fully
paid and non-assessable shares of Common Stock of the Corporation.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
ELIAS, MATZ, TIERNAN & HERRICK L.L.P.
By: /s/ KENNETH B. TABACH
----------------------------------
Kenneth B. Tabach, a Partner
Exhibit 23.2
Consent of Independent Certified Public Accountants
We hereby consent to the incorporation by reference in the Registration
Statement on Form S-8 of our report dated January 21, 1997 appearing on page F-2
of Ocwen Financial Corporation's Annual Report on Form 10-K for the year ended
December 31, 1996.
/s/ PRICE WATERHOUSE LLP
- --------------------------------
Price Waterhouse LLP
Fort Lauderdale, Florida
January 27, 1998
EXHIBIT 99.1
AS AMENDED THROUGH JANUARY 26, 1998
AS ADJUSTED FOR THE TEN-FOR-ONE STOCK
SPLIT IN JULY 1996 AND THE TWO-FOR-ONE
STOCK SPLIT IN NOVEMBER 1997
OCWEN FINANCIAL CORPORATION
1991 NON-QUALIFIED STOCK OPTION PLAN
ARTICLE I
DEFINITIONS
As used herein, the following terms have the meanings hereinafter set
forth unless the context clearly indicates to the contrary:
(a) "Board" shall mean the Board of Directors of the Company.
(b) "Committee" shall mean the Compensation Committee of the
Board, which shall consist of such person or persons as may be
appointed from time to time by the Board until such time as
the Stock is registered under the Exchange Act, following
which time the Committee shall consist of not less than the
minimum number of persons from time to time required by Rule
16b-3, each of whom, to the extent necessary to comply with
Rule 16b-3 only, shall be a "disinterested person" within the
meaning of Rule 16b-3.
(c) "Company" shall mean Ocwen Financial Corporation, a Florida
corporation.
(d) "Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended.
(e) "Fair Value" of the Stock shall mean (i) if the Stock is
listed or admitted to trading on any securities exchange or
national market system in the United States, the average of
the high and low sales prices on such day on the principal
securities exchange or national market system in the United
States on which the Stock is traded, (ii) if the Stock is not
then listed or admitted to trading on any such day, or if no
sale takes place on such day, the average of the closing bid
and asked prices in the United States on such day, as reported
by a reputable quotation source designated by the Committee,
and (iii) if the Stock is not then listed or admitted to
trading on any such securities exchange or national market
system and no such reported sale price or bid and asked prices
are available, the average of the reported high bid and low
asked prices in the United States on such day, as reported in
THE WALL STREET JOURNAL (Eastern edition) or other newspaper
designated by the Committee.
(f) "Option" shall mean an option to purchase Stock granted
pursuant to the provisions of Article VI hereof.
(g) "Optionee" shall mean a person to whom an Option has been
granted hereunder.
<PAGE>
(h) "Option Price" shall mean the price at which an Optionee may
purchase a share of stock under a Stock Option Agreement which
price may be less than Fair Value at the time the Option is
granted.
(i) "Plan" shall mean the Ocwen Financial Corporation 1991
Non-Qualified Stock Option Plan, as amended.
(j) "Rule 16b-3" shall mean Rule 16b-3 as promulgated and
interpreted by the Securities and Exchange Commission under
the Exchange Act, or any successor rule or regulation thereto
as in effect from time to time.
(k) "Stock" shall mean the common stock, $.01 par value, of the
Company or, in the event that the outstanding shares of Stock
are hereinafter changed into or exchanged for shares of a
different stock or securities of the Company or some other
corporation, such other stock or securities.
(l) "Stock Option Agreement" shall mean an agreement between the
Company and the Optionee under which the Optionee may purchase
Stock hereunder.
(m) "Subsidiary" shall mean any corporation, the majority of the
outstanding voting stock of which is owned, directly or
indirectly, by the Company.
ARTICLE II
THE PLAN
2.1 NAME. This plan shall be known as the "Ocwen Financial Corporation
1991 Non- Qualified Stock Option Plan."
2.2 PURPOSE. The purpose of the Plan is to advance the interests of the
Company, its Subsidiaries and its shareholders by affording certain officers and
other key employees of the Company and its Subsidiaries an opportunity to
acquire or increase their proprietary interests in the Company by granting such
persons Options to purchase Stock in the Company. The Options will promote the
growth and profitability of the Company and its Subsidiaries because the
Optionees will be provided with an additional incentive to achieve the Company's
objectives through participation in its success and growth and by encouraging
their continued employment with the Company.
2.3 EFFECTIVE DATE; TERMINATION DATE. The effective date of the Plan is
December 1, 1991. The Plan shall terminate, and no further Options shall be
granted hereunder, after November 30, 2006.
ARTICLE III
PARTICIPANTS
Any "key employee," as determined by the Committee, including executive
personnel, department heads and directors, of the Company or its Subsidiaries
shall be eligible to participate in the Plan, provided that they are full-time
employees of the Company or any of its Subsidiaries.
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ARTICLE IV
ADMINISTRATION
4.1 DUTIES AND POWERS OF COMMITTEE. The Plan shall be administered by
the Committee. In administering the Plan, the Committee's actions and
determinations shall be binding on all interested parties. Subject to the
express provisions of the Plan, the Committee shall have the sole discretion and
authority to determine from among eligible key employees those to whom an Option
shall be granted, the number of shares of Stock subject to the Option, and the
terms and conditions of the Stock Option Agreement. Subject to the express
provisions of the Plan, the Committee shall also have complete authority to
interpret the Plan, to prescribe, amend and rescind rules and regulations
relating to it, to determine the details and provisions of each Stock Option
Agreement, and to make all other determinations necessary or advisable in the
administration of the Plan, including, without limitation, the amending or
altering of the Plan and any Options granted hereunder as may be required to
comply with or to conform to any federal, state or local laws or regulations.
The Committee shall have the power to authorize the issuance of Stock in
accordance with the provisions of the Plan. No member of the Committee shall be
liable to any person for any determination made in good faith with respect to
the Plan or any Option granted hereunder.
4.2 COMMITTEE PROCEDURES. The Committee may make such rules and
regulations for the conduct of its business as it may deem necessary or
appropriate. A majority of the members of the Committee shall constitute a
quorum, and any action taken by a majority at a meeting at which a quorum is
present or any action taken without a meeting evidenced by a writing executed by
all the members of the Committee, shall constitute the action of the Committee.
The Committee shall keep minutes of its meetings.
The Company shall supply full and timely information to the Committee
on all matters relating to eligible persons as the Committee may require. The
Company shall furnish the Committee with such clerical and other assistance as
is necessary in the performance of its duties.
4.3 AUTHORITY OF THE BOARD. Notwithstanding anything to the contrary
contained in the Plan, the Plan also may be administered by the Board until such
time as the Stock is registered under the Exchange Act, following which time the
Plan also may be administered by the Board only to the extent permitted by Rule
16b-3. In the event of such administration by the Board, all references to the
Committee in the Plan shall be deemed to refer to the Board and any
employee-director of the Company shall be eligible to be designated a "key
employee" for purposes of the Plan.
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ARTICLE V
SHARES OF STOCK SUBJECT TO PLAN
5.1 LIMITATIONS. Subject to any adjustment pursuant to the provisions
of Section 5.2 hereof, the maximum number of shares of Stock which may be issued
and sold hereunder shall not exceed 20,000,000 shares. Shares subject to an
Option may be either authorized and unissued shares or shares issued and later
acquired by the Company. Any shares of Stock that are subject to an Option and
which are forfeited, and any shares of Stock that for any other reason are not
issued to an Optionee, shall automatically become available again for use under
the Plan if Rule 16b-3 under the Exchange Act, as such rule may be amended, or
any successor rule, and interpretations thereof by the Securities and Exchange
Commission or its staff permit such share replenishment.
5.2 ANTIDILUTION. In the event that the outstanding shares of Stock are
changed into or exchanged for a different number or kind of shares or other
securities of the Company or of another corporation by reason of merger,
consolidation, reorganization, recapitalization, reclassification, combination
of shares, stock splitup or stock dividend:
(a) The aggregate number and kind of shares of Stock on
which Options may be granted hereunder shall be
adjusted appropriately;
(b) The rights under outstanding Options granted
hereunder, both as to the number of subject shares
and the Option Price, shall be adjusted
appropriately; and
(c) Where dissolution or liquidation of the Company is
involved, the Optionee shall have the right,
immediately prior to such dissolution or liquidation,
to exercise his Option, in whole or in part, to the
extent that it shall not have been exercised,
subject, however, to the limitations set forth in
Article VI hereof.
The foregoing adjustments and the manner of application thereof shall
be determined solely by the Committee, and any such adjustment may provide for
the elimination of fractional share interests. The adjustments required under
this Article shall apply to any successor or successors of the Company and shall
be made regardless of the number or type of successive events requiring
adjustments hereunder.
ARTICLE VI
OPTIONS
6.1 OPTION GRANT AND AGREEMENT. Each Option granted hereunder shall be
evidenced by minutes of a meeting or the written consent of the Committee and by
a written Stock Option
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Agreement dated as of the date of grant and executed by the Company and the
Optionee. As to each grant hereunder, the terms of the Option, including the
Option's exercise price, shall be stated in the Stock Option Agreement or
incorporated therein by reference to the resolution or written consent of the
Committee setting the terms of the Option. The terms and conditions of the
Option shall be consistent with the Plan.
6.2 OPTION PRICE. The Option Price of the Stock subject to each Option
shall be determined by the Committee.
6.3 EXERCISE PERIOD. The period for the exercise of each Option shall
be ten years from the date of grant, unless the Option is earlier terminated as
may be provided in the Stock Option Agreement.
6.4 OPTION EXERCISE. An Option shall be exercisable in full or in part,
subject to the terms of the Stock Option Agreement, prior to expiration or
termination of the Option.
An Option may be exercised at any time or from time to time during the
term of the Option as to any or all full shares, but not at any time as to less
than 50 shares unless the remaining shares subject to the Option are less than
50 shares. The Option Price is to be paid in full in cash upon the exercise of
the Option, and the Company shall not be required to deliver certificates for
such shares until such payment has been made; provided, however, that in lieu of
cash all or any portion of the Option Price may be paid in such other manner as
may be acceptable to the Committee prior to delivery of the certificate(s)
representing said Stock which may, in the sole discretion of the Committee,
include the tendering to the Company shares of Stock duly endorsed for transfer
and owned by the Optionee, to be credited against the Option Price at their Fair
Value on the date of exercise. The holder of an Option shall not have any of the
rights of a stockholder with respect to the shares of Stock subject to the
Option until such shares have been issued or transferred to him upon the
exercise of his Option.
An Option shall be exercised by written notice of intent to exercise
the Option with respect to a specified number of shares of Stock, which notice
shall include the agreement to sign and abide by the terms and conditions of all
then applicable stockholders' agreements and transfer restrictions and by
payment in full to the Company in accordance with the preceding paragraph of the
Option Price for the number of shares of Stock with respect to which the Option
is then being exercised. The foregoing notice and payment shall be delivered to
the Secretary of the Company. In addition to and at the time of payment of the
Option Price, the Optionee shall pay to the Company in cash the full amount of
any federal and state withholding or other employment taxes applicable to the
taxable income of such Optionee resulting from such exercise; provided, however,
that in lieu of cash all or any portion of such tax obligations, together with
additional taxes not exceeding the actual additional taxes to be owed by the
Optionee as a result of such exercise, may, upon the irrevocable election of the
Optionee, be paid by tendering to the Company shares of Stock duly endorsed for
transfer and owned by the Optionee, or by authorization to the Company to
withhold shares of Stock otherwise issuable upon exercise of the
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Option, in either case in that number of shares having a Fair Value at the time
of exercise equal to the amount of such taxes thereby being paid.
6.5 NONTRANSFERABILITY OF OPTION. No Option shall be transferred by an
Optionee otherwise than by will or the laws of descent and distribution. During
the lifetime of an Optionee, his Option shall be exercisable only by him (or by
his guardian or legal representative, should one be appointed).
ARTICLE VII
STOCK CERTIFICATES
The Company shall not be required to issue or deliver a certificate for
shares of Stock purchased upon the exercise of any Option granted hereunder or
any portion thereof, prior to fulfillment of all of the following conditions:
(a) The execution of all then applicable stockholders' agreements
and agreement to all then applicable transfer restrictions;
(b) The obtaining of any approval or other clearance from any
federal or state governmental agency which the Company upon
the advice of counsel shall determine to be necessary or
advisable; and
(c) The lapse of such reasonable period of time following the
exercise of the Option as may be appropriate for reasons of
administrative convenience.
ARTICLE VIII
TERMINATION, AMENDMENT AND MODIFICATION OF PLAN
The Board may at any time terminate the Plan and may at any time and
from time to time and in any respect amend or modify the Plan; provided,
however, that if the Plan is approved by the stockholders of the Company, the
Board may not thereafter, without further stockholder approval, amend the Plan
to:
(a) Increase the total number of shares of Stock subject to the
Plan;
(b) Materially change or modify the class of employees that may
participate in the Plan; or
(c) Otherwise materially increase the benefits accruing to
participants under the Plan.
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No termination, amendment or modification of the Plan shall adversely
affect any Option previously granted hereunder without the written consent of
the Optionee or his guardian, legal representative or legatee.
ARTICLE IX
MISCELLANEOUS
9.1 PLAN BINDING ON SUCCESSORS. The Plan shall be binding upon the
successors and assigns of the Company.
9.2 SINGULAR, PLURAL; GENDER. Whenever used herein, nouns in the
singular shall include the plural, and the masculine pronoun shall include the
feminine gender.
9.3 HEADINGS, ETC., NO PART OF PLAN. Headings of articles and sections
hereof are inserted for convenience and reference; they constitute no part of
the Plan.
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EXHIBIT 99.2
AS AMENDED THROUGH JANUARY 26, 1998
AS ADJUSTED FOR THE TEN-FOR-ONE
STOCK SPLIT IN JULY 1996 AND THE
TWO-FOR-ONE STOCK SPLIT IN NOVEMBER 1997
OCWEN FINANCIAL CORPORATION
1996 STOCK PLAN FOR DIRECTORS
SECTION 1. INTRODUCTION
1.1 ESTABLISHMENT. Ocwen Financial Corporation, a Florida corporation
(the "Company"), has established the 1996 Stock Plan for Directors (the "Plan")
for all Directors of the Company, including Directors who are officers or
employees of the Company or its subsidiaries. The Plan provides, among other
things, for the payment of the Annual Director's Fee in the form of Restricted
Stock and for the payment of the Annual Committee Chair's Fee in the form of
Restricted Stock. Unless otherwise provided for herein, the term Company
includes Ocwen Financial Corporation and its subsidiaries.
1.2 PURPOSES. The purposes of the Plan are to encourage Directors to
own shares of the Company's stock and thereby to align their interests more
closely with the interests of the other shareholders of the Company, to
encourage the highest level of Director performance and to provide a financial
incentive that will help attract and retain the most qualified Directors.
SECTION 2. DEFINITIONS
2.1 DEFINITIONS. The following terms shall have the meanings set forth
below:
(a) "ANNUAL COMMITTEE CHAIR'S FEE" means the annual amount established
from time to time by the Board as the annual fee to be paid to Directors for
their services as chairs of standing committees of the Board.
(b) "ANNUAL DIRECTOR'S FEE" means the annual amount (which may be
prorated for a Director serving less than a full one year term, as in the case
of a Director who will be retiring or not standing for reelection at the annual
meeting of shareholders or a Director joining the Board after the annual meeting
of shareholders) established from time to time by the Board as the annual fee to
be paid to Directors for their services as directors.
(c) "ATTENDANCE PERCENTAGE" for a Director with respect to a particular
Grant Year means the percentage of the aggregate of all meetings of the Board
and committees of which the Director was a member held during the Grant Year
(or, for Directors who are elected after the beginning of the Grant Year,
Directors who retire at the next annual meeting of shareholders, Directors who
do not stand for reelection at the next annual meeting of shareholders or
Directors who die during the Grant Year, the aggregate of all such meetings held
for the portion of the Grant Year during which the Director served as a
director), which were attended by the Director.
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In the event that a Director ceases to be a director at any time during the
Grant Year for any reason other than retirement at the annual meeting of
shareholders, not standing for reelection at the annual meeting of shareholders,
or death, all meetings held during the Grant Year of the Board and committees of
which he was a member at the time of termination of service will continue to be
included as meetings when calculating the Attendance Percentage.
(d) "BOARD" means the Board of Directors of the Company.
(e) "CAUSE" means any act of (a) fraud or intentional misrepresentation
or (b) embezzlement, misappropriation or conversion of assets or opportunities
of the Company or any of its direct or indirect majority-owned subsidiaries.
(f) "CHANGE IN CONTROL" shall have the meaning assigned to it in
Section 6.2 hereof.
(g) "COMMITTEE" means the Compensation Committee of the Board or any
successor established by the Board.
(h) "DIRECTOR" means a member of the Board, including a member who is
an officer or an employee of the Company.
(i) "EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended from time to time.
(j) "EXISTING PRINCIPAL STOCKHOLDERS" means, individually or
collectively, William C. Erbey, Barry N. Wish and Harold D. Price and their
respective estates, spouses, heirs, ancestors, lineal descendants, legatees and
legal representatives of any of the foregoing, the trustee of any bona fide
trust of which one or more of the foregoing are the trustees or the majority
beneficiaries, and any entity of which any of the foregoing, individually or
collectively, beneficially owns more than fifty percent (50%) of the voting
securities thereof.
(k) "FAIR MARKET VALUE" means (i) if the Stock is listed or admitted to
trading on any securities exchange or national market system in the United
States, the average of the high and low sales prices on such day on the
principal securities exchange or national market system in the United States on
which the Stock is traded, (ii) if the Stock is not then listed or admitted to
trading on any such day, or if no sale takes place on such day, the average of
the closing bid and asked prices in the United States on such day, as reported
by a reputable quotation source designated by the Committee, and (iii) if the
Stock is not then listed or admitted to trading on any such securities exchange
or national market system and no such reported sale price or bid and asked
prices are available, the average of the reported high bid and low asked prices
in the United States on such day, as reported in THE WALL STREET JOURNAL
(Eastern edition) or other newspaper designated by the Committee.
(l) "GRANT DATE" means the date of grant pursuant to Section 5.1.
(m) "GRANT YEAR" means, as to a particular award, the 12 full calendar
months following the date on which the award was granted.
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(n) "INTERNAL REVENUE CODE" means the Internal Revenue Code of 1986, as
amended from time to time.
(o) "RESTRICTED STOCK" means shares of Stock awarded to a Director
pursuant to Section 5 and subject to certain restrictions in accordance with the
Plan.
(p) "RESTRICTED STOCK AWARD" means an award of shares of Restricted
Stock granted to a Director pursuant to Section 5 of the Plan.
(q) "STOCK" means the common stock, $0.01 par value, of the Company.
2.2 GENDER AND NUMBER. Except when otherwise indicated by the context,
the masculine gender shall also include the feminine gender, and the definition
of any term herein in the singular shall also include the plural.
SECTION 3. PLAN ADMINISTRATION
(a) The Plan shall be administered by the Committee. The members of the
Committee shall be members of the Board appointed by the Board, and any vacancy
on the Committee shall be filled by the Board.
The Committee shall keep minutes of its meetings and of any action
taken by it without a meeting. A majority of the Committee shall constitute a
quorum, and the acts of a majority of the members present at any meeting at
which a quorum is present shall be the acts of the Committee. Any action that
may be taken at a meeting of the Committee may be taken without a meeting if a
consent or consents in writing setting forth the action so taken shall be signed
by all of the members of the Committee. The Committee shall make appropriate
reports to the Board concerning the operations of the Plan.
(b) Subject to the limitations of the Plan, the Committee shall have
the sole and complete authority: (i) to impose such limitations, restrictions
and conditions upon such awards as it shall deem appropriate; (ii) to interpret
the Plan and to adopt, amend and rescind administrative guidelines and other
rules and regulations relating to the Plan; and (iii) to make all other
determinations and to take all other actions necessary or advisable for the
implementation and administration of the Plan. Notwithstanding the foregoing,
the Committee shall have no authority, discretion or power to select the
Directors who will receive awards pursuant to the Plan, determine the awards to
be granted pursuant to the Plan, the number of shares of Stock to be issued
thereunder or the price thereof or the time at which such awards are to be
granted, establish the duration and nature of awards or alter any other terms or
conditions specified in the Plan, except in the sense of administering the Plan
subject to the provisions of the Plan. The Committee's determinations on matters
within its authority shall be conclusive and binding upon the Company and all
other persons. The Plan shall be interpreted and implemented in a manner so that
Directors will not fail, by reason of the Plan or its implementation, to be
"disinterested persons" within the meaning of Rule 16b-3 under Section 16 of the
Exchange Act, as such rule may be amended, or any successor rule.
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(c) Notwithstanding anything to the contrary contained in the Plan, the
Plan also may be administered by the Board until such time as the Stock is
registered under the Exchange Act, following which time the Plan also may be
administered by the Board only to the extent permitted by Rule 16b-3 of the
Exchange Act, as such rule may be amended, or any successor rule. In the event
of such administration by the Board, all references to the Committee in the Plan
shall be deemed to refer to the Board.
(d) The Company shall be the sponsor of the Plan. All expenses
associated with the Plan shall be borne by the Company.
SECTION 4. STOCK SUBJECT TO THE PLAN
4.1 NUMBER OF SHARES. 500,000 shares of Stock are authorized for
issuance under the Plan in accordance with the provisions of the Plan, subject
to adjustment and substitution as set forth in this Section 4. This
authorization may be increased from time to time by approval of the Board and,
if such approval is required, by the shareholders of the Company. The Company
shall at all times during the term of the Plan retain as authorized and unissued
Stock at least the number of shares from time to time required under the
provisions of the Plan, or otherwise assure itself of its ability to perform its
obligations hereunder.
4.2 OTHER SHARES OF STOCK. Any shares of Stock that are subject to a
Restricted Stock Award and which are forfeited, and any shares of Stock that for
any other reason are not issued to a Director, shall automatically become
available again for use under the Plan if Rule 16b-3 under the Exchange Act, as
such rule may be amended, or any successor rule, and interpretations thereof by
the Securities and Exchange Commission or its staff permit such share
replenishment.
4.3 ADJUSTMENTS UPON CHANGES IN STOCK. If after adoption of the Plan by
the Board there shall be any change in the Stock of the Company, through merger,
consolidation, division, share exchange, combination, reorganization,
recapitalization, stock dividend, stock split, spinoff, split up, dividend in
kind or other change in the corporate structure or distribution to the
shareholders, appropriate adjustments may be made by the Committee (or, if the
Company is not the surviving corporation in any such transaction, the board of
directors of the surviving corporation) in the aggregate number and kind of
shares subject to the Plan, and the number and kind of shares which may be
issued under the Plan. Appropriate adjustments may also be made by the Committee
in the terms of any awards under the Plan to reflect such changes and to modify
any other terms of outstanding awards on an equitable basis as the Committee in
its discretion determines.
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SECTION 5. RESTRICTED STOCK AWARDS.
5.1 GRANTS OF RESTRICTED STOCK AWARDS.
(a) Each Director will receive the value of his Annual Director's Fee
in the form of a Restricted Stock Award. Such Restricted Stock shall be granted
automatically each year immediately following the annual meeting of shareholders
and the organization meeting of the Board related to such annual meeting of
shareholders, beginning with the annual meeting of shareholders and related
organization meeting held in 1996, to each Director who is elected to the Board.
If a person is elected to the Board at any time other than the annual meeting of
shareholders, whether by action of the shareholders of the Company or the Board,
such person upon becoming a Director shall be granted automatically the value of
his or her Annual Director's Fee for that period remaining prior to the next
annual meeting of shareholders in the form of a Restricted Stock Award
immediately following such person's election to the Board.
(b) Each Director who is the chair of a standing committee of the Board
will receive the value of his Annual Committee Chair's Fee in the form of a
Restricted Stock Award. Such Restricted Stock shall be granted automatically
each year immediately following the annual meeting of shareholders and the
organization meeting of the Board related to such annual meeting of
shareholders, beginning with the annual meeting of shareholders and related
organization meeting held in 1996, to each Director who is elected at such
organization meeting to serve as the chair of a standing committee of the Board.
(c) The total number of shares of Stock representing any such
Restricted Stock Award will be the number of shares determined by dividing the
amount of the Annual Director's Fee or the Annual Committee Chair's Fee, as the
case may be, to be paid in the form of a Restricted Stock Award by the Fair
Market Value of a share of Stock on the Grant Date, rounded up to the nearest
whole share.
(d) Notwithstanding anything to the contrary contained in the Plan, (i)
each Director elected at the annual meeting of shareholders held in 1996 shall
receive the value of his Annual Director's Fee and each Director who is elected
as the chair of a standing committee of the Board at the related organization
meeting held in 1996 shall receive the value of his Annual Committee Chair's Fee
in the form of a Restricted Stock Award granted automatically on the date on
which the Stock is registered under the Exchange Act, and (ii) the Grant Date
for each Restricted Stock Award granted under Section 5.1(d)(i) shall for all
purposes under the Plan be deemed to be the date of the annual meeting of
shareholders held in 1996.
(e) Restricted Stock granted pursuant to Section 5.1 shall be subject
to adjustment as provided in Section 4.3.
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5.2 TERMS AND CONDITIONS OF RESTRICTED STOCK. Restricted Stock granted
under the Plan shall be subject to the following terms and conditions:
(a) RESTRICTION PERIOD. Restricted Stock will be subject to a
Restriction Period ("Restriction Period") beginning on the Grant Date and
continuing through last day of the Grant Year.
(b) VESTING.
(1) Except as set forth in Section 5.2(b)(3), a Director's right to
ownership in shares of Restricted Stock granted to a Director pursuant to
Section 5.1(a) will vest on the first day of the month immediately following the
expiration of the Restriction Period for such shares (the "Restricted Stock
Vesting Date") if the Director has an Attendance Percentage of at least
seventy-five percent (75%) for the Grant Year. In the event that a Director has
an Attendance Percentage of less than seventy-five percent (75%) for the Grant
Year, a number of shares of Restricted Stock equal to the Director's Attendance
Percentage for the Grant Year multiplied by the total number of shares of
Restricted Stock granted pursuant to Section 5.1(a) during the Grant Year
(rounded up to the nearest whole share) will vest on the Restricted Stock
Vesting Date and the remaining shares of Restricted Stock granted pursuant to
Section 5.1(a) during the Grant Year will be forfeited as of the Restricted
Stock Vesting Date.
(2) Except as set forth in Section 5.2(b)(3), a Director's right to
ownership in shares of Restricted Stock granted to a committee chair pursuant to
Section 5.1(b) will vest on the Restricted Stock Vesting Date.
(3) Notwithstanding anything to the contrary herein, (i) in the event
that a director is removed from office for Cause prior to the Restricted Stock
Vesting Date, all of such Director's shares of Restricted Stock that have not
yet vested will be forfeited immediately as of the time the grantee is so
removed from office and the Company will have the right to complete the blank
stock power described below with respect to such shares, and (ii) upon the
occurrence of a Change in Control, all shares of Restricted Stock that have not
yet vested will immediately vest.
(c) ISSUANCE OF SHARES. On the Grant Date, a certificate representing
the shares of Restricted Stock will be registered in the Director's name and
deposited by the Director, together with a stock power endorsed in blank, with
the Company. Subject to the transfer restrictions set forth in Section 5.2(d)
and to the last sentence of this Section 5.2(c), the Director as owner of shares
of Restricted Stock will have the rights of the holder of such Restricted Stock
during the Restriction Period. Following expiration of the Restriction Period,
on the Restricted Stock Vesting Date, vested shares of Restricted Stock will be
redelivered by the Company to the Director and nonvested shares of Restricted
Stock will be forfeited and the Company will have the right to complete the
blank stock power with respect to such shares. For shares of Restricted Stock
granted prior to the effective date of the Plan as set forth in Section 11, no
certificate will be issued, such shares will not be issued and outstanding, and
the Director will not have any of the rights of the owner of the shares until
such effective date has occurred.
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(d) TRANSFER RESTRICTIONS; MANDATORY HOLDING OF STOCK. Except as
otherwise provided in Section 5.5 or Section 7, shares of Restricted Stock are
not transferable during the Restriction Period. Once the Restriction Period
lapses and shares vest, except as otherwise provided in Section 5.5 or Section
7, shares acquired as a Restricted Stock Award must be held by the grantee for a
minimum of: (1) three years from the Grant Date, (2) two years from the date the
grantee ceases to be a director of the Company, or (3) until the occurrence of a
Change in Control, whichever first occurs (the "Restricted Shares Holding
Period").
(e) RESTRICTED STOCK AGREEMENT. All Restricted Stock Awards will be
confirmed by an agreement, or an amendment thereto, which will be executed on
behalf of the Company by the Chief Executive Officer, the President, any
Managing Director, any Senior Vice President or any Vice President and the
grantee.
(f) GENERAL RESTRICTIONS.
(1) The obligation of the Company to issue shares of Restricted Stock
under the Plan shall be subject to the condition that, if at any time the
Company shall determine that (a) the listing, registration or qualification of
shares of Restricted Stock upon any securities market or exchange or under any
state or federal law, or (b) the consent or approval of any government or
regulatory body is necessary or desirable, then such Restricted Stock shall not
be issued unless such listing, registration, qualification, consent or approval
shall have been effected or obtained free from any conditions not acceptable to
the Company.
(2) Shares of Stock for use under the provisions of this Section 5
shall not be issued until they have been duly listed, upon official notice of
issuance, upon the Nasdaq system and/or such other markets or exchanges, if any,
as the Board shall determine, and a registration statement under the Securities
Act of 1933 with respect to such shares shall have become, and be, effective.
Subject to the foregoing provisions of this Section 5.2 and the other
provisions of the Plan, any shares of Restricted Stock granted under the Plan
shall be subject to such restrictions and other terms and conditions, if any, as
shall be determined by the Committee, in its discretion, and set forth in the
agreement referred to in Section 5.2(e), or an amendment thereto; provided,
however, that in no event shall the Committee or the Board have any power or
authority which would cause the Directors to cease to be "disinterested persons"
or would cause transactions pursuant to the Plan to cease to be exempt from the
provisions of Section 16(b) of the Exchange Act pursuant to Rule 16b-3, as such
rule may be amended, or any successor rule.
5.3 ANNUAL STATEMENT. A statement will be sent to each Director as to
the status of his Restricted Stock at least once each calendar year.
5.4 DESIGNATION OF A BENEFICIARY. A Director may designate a
beneficiary to hold shares of Restricted Stock in accordance with the Plan in
the event of the Director's death.
5.5 HOLDING PERIOD APPLICABLE TO A DECEASED GRANTEE'S ESTATE. As long
as at least six months have elapsed since the Grant Date, a properly designated
beneficiary, or a person holding shares of Restricted Stock under a deceased
grantee's will or under the applicable laws
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of descent or distribution, will not be subject to the Restricted Shares Holding
Period with respect to such shares of Restricted Stock.
SECTION 6. CHANGE IN CONTROL
6.1 SETTLEMENT OF COMPENSATION. In the event of a Change in Control of
the Company as defined herein, to the extent not already vested, all Stock
Option Awards, Restricted Stock Awards and other benefits hereunder shall be
vested immediately.
6.2 DEFINITION OF CHANGE IN CONTROL. A Change in Control shall mean the
occurrence of one or more of the following events:
(a) there shall be consummated (i) any consolidation or merger of the
Company in which the Company is not the continuing or surviving corporation or
pursuant to which shares of the Company's Stock would be converted into cash,
securities or other property, other than a merger of the Company in which the
holders of the Company's Stock immediately prior to the merger have the same
proportionate ownership of common stock of the surviving corporation immediately
after the merger, or (ii) any sale, lease, exchange or other transfer (in one
transaction or a series of related transactions) of all, or substantially all,
of the assets of the Company; or
(b) the shareholders of the Company shall approve of any plan or
proposal for the liquidation or dissolution of the Company; or
(c)(i) any person (as such term is defined in Section 13(d) of the
Exchange Act), corporation or other entity shall purchase any Stock of the
Company (or securities convertible into the Company's Stock) for cash,
securities or any other consideration pursuant to a tender offer or exchange
offer, unless, prior to the making of such purchase of Stock (or securities
convertible into Stock), the Board shall determine that the making of such
purchase shall not constitute a Change in Control, or (ii) any person (as such
term is defined in Section 13(d) of the Exchange Act), corporation or other
entity (other than the Existing Principal Stockholders, the Company or any
benefit plan sponsored by the Company or any of its subsidiaries) shall become
the "beneficial owner" (as such term is defined in Rule 13d-3 under the Exchange
Act), directly or indirectly, of securities of the Company representing forty
percent (40%) or more of the combined voting power of the Company's then
outstanding securities ordinarily (and apart from any rights accruing under
special circumstances) having the right to vote in the election of directors
(calculated as provided in Rule 13d-3(d) in the case of rights to acquire any
such securities), unless, prior to such person so becoming such beneficial
owner, the Board shall determine that such person so becoming such beneficial
owner shall not constitute a Change in Control; or
(d) during any period of two consecutive years, individuals who at the
beginning of such period constituted the Board, or whose nomination for election
by the shareholders of the Company was approved by a vote of a majority of the
Directors then still in office who were either Directors at the beginning of
such period or whose election or nomination for election was
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previously so approved, cease for any reason to constitute a majority of the
Directors then in office.
SECTION 7. ASSIGNABILITY
The right to receive payments or distributions hereunder (including any
"derivative security" issued pursuant to the Plan, as such term is defined by
the rules promulgated under Section 16 of the Exchange Act) and any shares of
Restricted Stock granted hereunder during the Restriction Period shall not be
transferable or assignable by a director other than by will, by the laws of
descent and distribution, to a properly designated beneficiary in the event of
death, or pursuant to a domestic relations order as defined by Section
414(p)(1)(B) of the Internal Revenue Code or the rules thereunder that satisfies
Section 414(p)(1)(A) of the Internal Revenue Code or the rules thereunder. In
addition, Stock acquired as Restricted Stock shall not be transferable prior to
the end of the applicable Restricted Shares Holding Period, if any, set forth in
Sections 5.2(d) and 5.5, in either case other than by will, by transfer to a
properly designated beneficiary in the event of death, by the applicable laws of
descent and distribution or pursuant to a domestic relations order as defined by
Section 414(p)(1)(B) of the Internal Revenue Code or the rules thereunder that
satisfies Section 414(p)(1)(A) of the Internal Revenue Code or the rules
thereunder.
SECTION 8. RETENTION; WITHHOLDING OF TAX
8.1 RETENTION. Nothing contained in the Plan or in any Restricted Stock
Award granted under the Plan shall interfere with or limit in any way the right
of the Company to remove any director from the Board pursuant to the Articles of
Incorporation and the Bylaws of the Company, nor confer upon any director any
right to continue in the service of the Company.
8.2 WITHHOLDING OF TAX. To the extent required by applicable law and
regulation, each director must arrange with the Company for the payment of any
federal, state or local income or other tax applicable to any payment or any
delivery of Stock hereunder before the Company shall be required to make such
payment, issue or, in the case of Restricted Stock, deliver such shares under
the Plan.
SECTION 9. PLAN AMENDMENT, MODIFICATION AND TERMINATION
The Board may at any time terminate, and from time to time may amend or
modify, the Plan; provided, however, that no amendment or modification may
become effective without approval of the amendment or modification by the
shareholders if shareholder approval is required to enable the Plan to satisfy
any applicable statutory or regulatory requirements and provide further, that,
unless otherwise permitted by the rules under Section 16 of the Exchange Act, no
amendment or modification shall be made more than once every six months that
would change the amount, price, or timing of the Restricted Stock Awards
hereunder, other than to
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comport with changes in the Internal Revenue Code, the Employee Retirement
Income Security Act of 1974, as amended, or the rules promulgated thereunder.
SECTION 10. REQUIREMENTS OF LAW
10.1 FEDERAL SECURITIES LAW REQUIREMENTS. Implementation and
interpretations of, and transactions pursuant to, the Plan shall be subject to
all conditions required under Rule 16b-3, as such rule may be amended, or any
successor rule, to qualify such transactions for any exemption from the
provisions of Section 16(b) of the Exchange Act available under that rule, or
any successor rule, and to permit the Directors to be "disinterested persons"
within the meaning of that rule, or any successor rule, insofar as the Plan or
its implementation shall impact such disinterested status.
10.2 GOVERNING LAW. The Plan and all agreements hereunder shall be
construed in accordance with and governed by the laws of the State of Florida.
SECTION 11. EFFECTIVE DATE OF AMENDMENT
The Plan shall be effective on the date on which the Stock is
registered under the Exchange Act. The Plan shall not preclude the adoption by
appropriate means of any other compensation or deferral plan for directors.
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