d
Exhibit 10.2
FORM OF REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT ("Agreement") is entered into as of the
day of , 1997 by and among Ocwen Asset Investment Corp. (the
"Company"), Ocwen Financial Corporation ("OFC") and Ocwen Capital Corporation
(the "Manager").
RECITALS
WHEREAS, the Company and OFC have entered into an agreement (the "Purchase
Agreement") pursuant to which the Company has agreed to sell to OFC, and OFC has
agreed to purchase, 1,875,000 shares of common stock in the Company ("Common
Stock");
WHEREAS, the Company and the Manager have entered into an agreement (the
"Management Agreement") pursuant to which the Manager will perform managerial
services for the Company and its subsidiaries;
WHEREAS, the Company has established a stock option plan (the "Plan")
pursuant to which options to acquire shares of Common Stock may be granted, and,
pursuant to an agreement (the "Stock Option Agreement") the Company has granted
all of the options available under the Plan (the "Options") to the Manager,
which will entitle the Manager to acquire 1,437,500 shares (1,625,000 assuming
the Underwriters exercise their overallotment option) of Common Stock (or, at
the election of the Company, units of limited partnership interest in Ocwen
Partnership, L.P., which units will be redeemable for shares of Common Stock)
over a four-year vesting period.
WHEREAS, neither the shares of Common Stock to be acquired by OFC nor the
shares of Common Stock subject to the Options have been registered under the
Securities Act of 1933, as amended (the "Securities Act");
WHEREAS, from time to time, OFC or the Manager may acquire additional
shares of Common Stock;
WHEREAS, the parties hereto desire to set forth certain rights of OFC and
the Manager as holders of Common Stock;
NOW, THEREFORE, for and in consideration of the mutual promises and
agreements contained in this Agreement, the parties hereto mutually agree as
follows:
AGREEMENT
ARTICLE I
DEFINITIONS
"Affiliate" means (i) any Person that, directly or indirectly, controls or
is controlled by or is under common control with such Person, (ii) any other
Person that beneficially owns, directly or indirectly, 5% or more of the
outstanding capital stock, shares or equity interests of such Person, or (iii)
any officer, director, employee, partner or trustee of such Person or any Person
controlling, controlled by or under common control with such Person (excluding
trustees and persons serving in similar capacities who are not otherwise
Affiliates of such Person). For the purposes of this definition, "control"
(including the correlative meanings of the terms "controlled by" and "under
common control with"), as used with respect to any Person, shall mean the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of such Person, through the ownership
of voting securities, partnership interests or other equity interests.
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"Agreement" means this Registration Rights Agreement, as the same shall be
amended, modified, or supplemented from time to time.
"Closing" means the date on which the Company's registration statement on
Form S-11, pursuant to which the Company's initial public offering of Common
Stock will be made, is declared effective.
"Closing Date" means the date on which the Closing occurs.
"Closing Price" means the average of the high bid and low asked prices in
the over-the-counter market, as reported by The Nasdaq Stock Market.
"Code" means the Internal Revenue Code of 1986, as amended, and as hereafter
amended from time to time. Reference to any particular provision of the Code
shall mean that provision of the Code as of the date hereof and any succeeding
provision of the Code.
"Market Price" means, as of any determination date, the average of the
Closing Prices for the five consecutive Trading Days ending on such date.
"Person" means a natural person, a corporation, a partnership, a trust, a
joint venture, any regulatory authority, or any other entity or organization.
"SEC" means the United States Securities and Exchange Commission.
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Shelf Registration" shall mean the registration of the shares owned by OFC
and the Manager by the Company effected pursuant to Section 2.01 hereof.
"Shelf Registration Period" shall mean the period of time the Company is
required to make and maintain the Shelf Registration as defined in Section 2.01
hereof.
"Trading Day" means any day other than a Saturday, a Sunday or a day on
which banking institutions in the State of New York are authorized or obligated
by law or executive order to close.
ARTICLE II
SHELF REGISTRATION
SECTION 2.01. Shelf Registration. If the Manager ceases to act as manager
for the Company, then, upon the request of OFC or the Manager, the Company
agrees to file with the SEC, no later than thirty days after the request, a
shelf registration statement under Rule 415 of the Securities Act, or similar
rule that may be adopted by the SEC (a "Shelf Registration") with respect to all
shares of Common Stock held by OFC and the Manager (or, if so requested by OFC
or the Manager, a specified portion of such shares). The Company will use its
best efforts to have such Shelf Registration declared effective under the
Securities Act as soon as possible. OFC and the Manager shall notify the Company
of the method or methods of disposition that may be utilized by them in
disposing of such shares and such information shall be included in the
prospectus included in such Shelf Registration to the extent such methods are
permitted by applicable law.
The Company will use its best efforts to keep the Shelf Registration
continuously effective until the date when all of the shares of Common Stock
covered thereby are sold thereunder (the "Shelf Registration Period"). The
Company agrees to furnish OFC and the Manager such number of copies of the
relevant prospectuses, and supplements or amendments thereto, and such other
documents as OFC or the Manager reasonably requests, during the Shelf
Registration Period. The Company further agrees to supplement or make amendments
to any Shelf Registration, if required by the rules, regulations or instructions
applicable to the registration form utilized by the Company or by the Securities
Act or rules and regulations thereunder for the Shelf Registration. The Company
shall keep OFC and the Manager advised as to the initiation and progress of the
registration of the shares pursuant to the Shelf Registration.
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Moreover, upon request of OFC or the Manager, the Company shall register or
qualify the shares covered by the Shelf Registration under the securities or
blue sky laws of such jurisdictions within the United States as OFC or the
Manager shall reasonably request, and do such other reasonable acts and things
as may be required to enable OFC and the Manager to consummate the sale or other
disposition in such jurisdiction of the shares of Common Stock.
SECTION 2.02. Allocation of Expenses. The Company shall pay all expenses in
connection with the Shelf Registration, including, without limitation (a) all
expenses incident to filing with the National Association of Securities Dealers,
Inc., (b) registration fees, (c) printing expenses, (d) accounting and legal
fees and expenses, except to the extent OFC or the Manager elects to engage
accountants or attorneys in addition to the accountants and attorneys engaged by
the Company, (e) accounting expenses incident to or required by any such
registration or qualification, and (f) expenses of complying with the securities
or blue sky laws of any jurisdictions in connection with such registration or
qualifications; provided, however, the Company shall not be liable for (i) any
underwriting discounts or commissions to any broker attributable to the sale of
OFC's or the Manager's shares, or (ii) any fees or expenses incurred by OFC or
the Manager in connection with such registration which, according to the written
instructions of any regulatory authority, the Company is not permitted to pay.
SECTION 2.03. Indemnification. In connection with the Shelf Registration,
the Company agrees to indemnify OFC and the Manager in accordance with the
provisions of Sections 4.05 through 4.08 hereof.
SECTION 2.04. Listing on Securities Exchange. If the Company shall list or
maintain the listing of any Common Stock on any securities exchange or national
market system, it will at its expense and as necessary to permit the
registration and sale of OFC's and the Manager's shares of Common Stock
hereunder, list and maintain such shares thereon.
ARTICLE III
OTHER REGISTRATIONS
SECTION 3.01. Participation in Other Registrations.
(a) If at any time on or after the date that is two (2) years after the
Closing the Company shall propose the registration under the Securities Act of a
public offering of Common Stock, the Company shall give written notice of such
proposed registration as promptly as practicable to OFC and the Manager, and if,
within fifteen (15) days after the giving of such notice, OFC or the Manager
request the Company in writing to include any shares of Common Stock that are
owned by OFC or the Manager and that have not previously registered under a
Shelf Registration declared effective by the SEC, the Company shall include in
the registration such amount of such shares of Common Stock as OFC or the
Manager shall request; provided, however, that the Company shall not be required
to give notice or include such shares in any such registration if the proposed
registration relates solely to (i) securities to be offered to employees
pursuant to a stock option, stock savings, or other employee benefit plan, (ii)
securities proposed to be issued in exchange for securities or assets of, or in
connection with a merger of consolidation with, another entity, (iii) securities
to be offered by the Company generally to any class or series of its then
existing security holders, (iv) securities issuable upon the conversion of
securities which are the subject of an underwritten redemption, or (v)
securities to be offered or issued pursuant to a combination of transactions
referred to in clauses (i) through (iv).
(b) If the proposed public offering is to be made pursuant to a firm
commitment underwriting, at the option of either the Company or the proposed
managing underwriter, the shares requested to be included by OFC and the Manager
shall be included in such underwriting, on the same terms and conditions as to
underwriting discounts and commissions.
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SECTION 3.02. Obligations of the Company. The Company shall undertake the
following obligations to OFC and the Manager in connection with the registration
of the shares of OFC and the Manager pursuant to Section 3.01 hereof:
(a) The Company shall furnish to OFC and the Manager or their managing
underwriter such number of copies of each preliminary prospectus and final
prospectus and amendment or supplement thereto as OFC or the Manager may
reasonably request in order to effect the sale of the shares to be offered
and sold by OFC and the Manager pursuant to Section 3.01 hereof, but only
while the Company is required to cause the registration statement to remain
current.
(b) The Company shall use its best efforts to qualify the offering under
applicable blue sky or other securities laws of such jurisdictions as may be
specified by OFC or the Manager.
(c) If necessary, the Company shall furnish to OFC and the Manager
certificates representing ownership of the shares being offered which
contain no restrictive legends, in such numbers and denominations as OFC and
the Manager shall reasonably request.
(d) The Company shall use its best efforts (including, without
limitation, preparation of necessary post-effective amendments and
supplements) to cause the registration statement to remain current for
ninety (90) calendar days following its effective date or such lesser period
as OFC, the Manager and their managing underwriter may accept.
(e) The Company shall afford OFC and the Manager and their
representatives the opportunity to make such reasonable examination and
inquiry into the financial condition and business of the Company and its
Affiliates as OFC's and the Manager's counsel may deem necessary or prudent
in connection with the preparation of the registration statement or any
other materials to be used in connection with OFC's and the Manager's
offering.
SECTION 3.03. Conditions to Obligations of the Company. The obligations of
the Company to use its best efforts to cause the shares owned by OFC and the
Manager to be registered under the Securities Act are subject to the following
conditions:
(a) In no event will the Company's obligations or duties under Article
IV hereof apply or extend to any shares previously registered under a Shelf
Registration pursuant to Article II hereof that was declared by the SEC to
be, and that remains, effective.
(b) Any request by OFC or the Manager for registration shall specify the
amount of shares intended to be sold, contain the undertaking of OFC or the
Manager, as the case may be, to provide all such information as may be
reasonably required in order to permit the Company to comply with all
applicable requirements of the SEC and to obtain acceleration of the
effective date of the registration statement, identify any proposed
underwriters, and specify the proposed method of offering and sale.
(c) The Company may require, as a condition to fulfilling its
obligations hereunder, the indemnification agreements described in Section
3.06 from OFC or the Manager, as the case may be, and their underwriters.
(d) The Company shall not be required to register shares pursuant to
Section 3.01 if, within ten (10) calendar days following receipt of the
request for registration, the Company shall commit itself to repurchase the
shares at the Market Price of such shares as of the date the Company
receives such request.
SECTION 3.04. Expenses of Registration. All underwriting discounts and
commissions attributable to shares being sold by OFC or the Manager shall be
borne by the OFC or the Manager, as applicable. As to the other expenses of
registration:
(a) In connection with any registration pursuant to Section 2.01, OFC or
the Manager shall pay or reimburse the Company for the SEC registration fee,
printing expenses, and the reasonable
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expenses of qualifying the offering under applicable blue sky or other
securities laws; provided, however, that such fees and expenses shall be
borne by the Company with respect to the first two (2) registrations
requested by OFC or the Manager under Section 2.01; and provided, further,
that if the Company shall include any other securities of its issue in any
registration pursuant to Section 2.01, such fees and expenses shall be
apportioned among OFC, the Manager and the other offerors in accordance with
the amount of securities being offered.
(b) In connection with the first two (2) registrations requested by OFC
or the Manager under Section 3.01, the Company shall pay the fees and
expenses referred to in Section 3.04(a); provided, however, that as to any
fees and expenses required to be paid by other security holders of the
Company, such fees and expense shall be apportioned among OFC, the Manager
and other security holders in accordance with the amount of securities being
offered.
(c) Any other fees or expenses incurred by one of the parties to a
registration, including, without limitation, fees and expenses of attorneys
and accountants, shall be borne by such party.
SECTION 3.05. Indemnification by the Company. In the case of each
registration pursuant to Article II or III hereof, the Company agrees to
indemnify and hold harmless OFC and the Manager, the directors and officers of
OFC and the Manager, each underwriter of the shares of OFC and the Manager so
registered, and each person (if any) who controls OFC or the Manager or any such
underwriter within the meaning of Section 15 of the Securities Act, against any
and all losses, claims, damages, or liabilities to which they or any of them may
become subject under the Securities Act or any other statute or common law,
including any amount paid in settlement of any litigation, commenced or
threatened, if such settlement is effected with the written consent of the
Company, and to reimburse them for any legal or other expenses incurred by them
in connection with investigating any claims and defending any actions, insofar
as any such losses, claims, damages, liabilities, or actions arise out of or are
based upon (a) any untrue statement or alleged untrue statement of a material
fact contained in the registration statement filed to register the sale of such
shares or any post-effective amendment thereto or in any filing made in
connection with the qualification of the offering under blue sky or other
securities laws of jurisdictions in which the shares are offered (a "Blue Sky
Filing"), or the omission or alleged omission to state therein a material fact
required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading, or (b) any untrue statement or alleged untrue statement of a
material fact contained in any preliminary prospectus, if used prior to the
effective date of such registration statement, or contained in the final
prospectus (as amended or supplemented if the Company shall have filed with the
SEC any amendment thereof or supplement thereto) if used within the period
during which the Company is required to keep the registration statement to which
such prospectus relates current, or the omission or alleged omission to state
therein (if so used) a material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading; provided, however, that the indemnification agreement contained in
this Section 3.05 shall not (i) apply to such losses, claims, damages,
liabilities, or actions arising out of, or based upon, any such untrue statement
or alleged untrue statement, or any such omission or alleged omission, if such
statement or omission was made in reliance upon and in conformity with written
information furnished to the Company by OFC or the Manager or such underwriter
specifically for use in connection with preparation of the registration
statement, any preliminary prospectus or final prospectus contained in the
registration statement, any such amendment or supplement thereto or any Blue Sky
Filing, or (ii) inure to the benefit of any underwriter or any person
controlling such underwriter, if such underwriter failed to send or give a copy
of the final prospectus to the person asserting the claim at or prior to the
written confirmation of the sale of such shares to such person and if the untrue
statement or omission concerned has been corrected in such final prospectus.
SECTION 3.06. Indemnification by OFC and the Manager. In the case of each
registration pursuant hereto, OFC and the Manager and each underwriter of the
shares of OFC or the Manager so registered shall agree in the same manner and to
the same extent as set forth in Section 3.05 hereof to indemnify and
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hold harmless the Company, each person (if any) who controls the Company within
the meaning of Section 15 of the Securities Act, the directors of the Company,
and those officers of the Company who shall have signed any such registration
statement, with respect to any untrue statement or alleged untrue statement in,
or omission or alleged omission from, such registration statement or any
post-effective amendment thereto or any preliminary prospectus or final
prospectus (as amended or supplemented if amended or supplemented as aforesaid)
contained in such registration statement or any Blue Sky Filing, if such
statement or omission was made in reliance upon and in conformity with written
information furnished to the Company by such indemnifying party specifically for
use in accordance with the preparation of the registration statement, any
preliminary prospectus or final prospectus contained in the registration
statement, any such amendment or supplement thereto, or any Blue Sky Filing.
SECTION 3.07. Indemnification Procedures.
(a) Each indemnified party shall, with reasonable promptness after its
receipt of written notice of the commencement of any action against such
indemnified party in respect of which indemnity may be sought from an
indemnifying party on account of an indemnity agreement contained herein, notify
the indemnifying party in writing of the commencement thereof.
(b) The omission to notify the indemnifying party shall not relieve it from
any liability which it may have to any indemnified party unless the failure to
give notice materially adversely affects the ability of the indemnifying party
to defend a claim which is the subject of indemnification hereunder (in which
case the indemnifying party shall be relieved of its obligation only to the
extent of offsetting any loss, damage, or liability it suffers as a consequence
of the failure against its monetary obligation to the indemnified party).
(c) In case any such action shall be brought against any indemnified party
and the indemnified party shall so notify an indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate
therein and to the extent it may wish, jointly with any other indemnifying party
similarly notified, to assume the defense thereof with counsel reasonably
satisfactory to such indemnified party and, after notice from the indemnifying
party to such indemnified party of its election so to assume the defense
thereof, the indemnifying party shall not be liable to such indemnified party
hereunder for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable
costs of investigation, except as provided below.
(d) The indemnified party shall have the right to employ separate counsel in
any such action and participate in the defense thereof, but the fees and
expenses of such counsel (other than reasonable costs of investigation) shall be
paid by the indemnified party unless (i) the indemnifying party agrees to pay
the same, (ii) the indemnifying party fails to assume the defense of such action
with counsel reasonably satisfactory to the indemnified party, or (iii) the
named parties to any such action (including any impleaded parties) have been
advised by such counsel that representation of such indemnified party and the
indemnifying party by the same counsel would be inappropriate under applicable
standards of professional conduct (in which case the indemnifying party shall
not have the right to assume the defense of such action on behalf of such
indemnified party). No indemnifying party shall be liable for any settlement
entered into without its consent.
(e) The indemnity agreements contained herein shall be in addition to any
liabilities which the indemnifying party may have pursuant to law.
SECTION 3.08. Contribution.
(a) If for any reason the indemnification provisions contemplated herein are
either unavailable or insufficient to hold harmless an indemnified party in
respect of any losses, claims, damages, or liabilities referred to therein, then
the party that otherwise would be required to provide indemnification or the
indemnifying party (in either case, for purposes of this section, the
"Indemnifying Party") in respect of such losses, claims, damages, or
liabilities, shall contribute to the amount paid or payable by the party that
would otherwise be entitled to indemnification or the indemnified party (in
either case, for purposes of this
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section, the "Indemnified Party") as a result of such losses, claims, damages,
liabilities, or expense, in such proportion as is appropriate to reflect the
relative fault of the Indemnifying Party and the Indemnified Party, as well as
any other relevant equitable considerations. The relative fault of the
Indemnifying Party and Indemnified Party shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or omission or alleged omission to state a material fact related to
information supplied by the Indemnifying Party or Indemnified Party, and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The amount paid or payable by a
party as a result of the losses, claims, damages, liabilities, and expenses
referred to above shall be deemed to include any legal or other fees or expenses
reasonably incurred by such party. In no event shall any holder of shares
covered by the registration be required to contribute an amount greater than the
dollar amount of the proceeds received by such holder from the sale of shares
pursuant to the registration giving rise to the liability.
(b) The parties hereto agree that it would not be just and equitable if
contribution pursuant to this section were determined by PRO RATA allocation
(even if the holders or any underwriters or all of them were treated as one
entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to in the immediately
preceding paragraph. No person or entity determined to have committed a
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person or entity who
was not guilty of such fraudulent misrepresentation.
ARTICLE IV
GENERAL
SECTION 4.01. Notices. All communications required or permitted under this
Agreement shall be in writing and shall be deemed to have been given when
delivered personally or upon deposit in the United States mail, registered,
postage prepaid return receipt requested, to OFC and the Manager at 0000 Xxxx
Xxxxx Xxxxx Xxxxxxxxx, Xxxx Xxxx Xxxxx, Xxxxxxx 00000; provided, however, that
OFC or the Manager may specify a different address by notifying the Company in
writing of such different address. Notices to the Company shall be delivered at
or mailed to 0000 Xxxx Xxxxx Xxxxx Xxxxxxxxx, Xxxx Xxxx Xxxxx, Xxxxxxx 00000, or
such different address as the Company may notify OFC and the Manager in writing.
SECTION 4.02. Entire Agreement. This Agreement and exhibits attached hereto
constitute the entire agreement of the parties and supersede all prior written
agreements and prior and contemporaneous oral agreements, understandings and
negotiations with respect to the subject matter hereof.
SECTION 4.03. Pronouns and Plurals. When the context in which words are used
in this Agreement indicates that such is the intent, words in the singular
number shall include the plural and the masculine gender shall include the
neuter or female gender as the context may require.
SECTION 4.04. Headings. The article headings or sections in this Agreement
are for convenience only and shall not be used in construing the scope of this
Agreement or any particular article.
SECTION 4.05. Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed to be an original copy and all of
which together shall constitute one and the same instrument binding on all
parties hereto, notwithstanding that all parties shall not have signed the same
counterpart.
SECTION 4.06. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the Commonwealth of Virginia.
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IN WITNESS WHEREOF, each party hereto, through its officer thereunto duly
authorized, has duly executed this Agreement as of the day and year first above
written.
OCWEN ASSET INVESTMENT CORP.
By:
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Name:
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Its:
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OCWEN FINANCIAL CORPORATION
By:
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Name:
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Its:
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OCWEN CAPITAL CORPORATION
By:
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Name:
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Its:
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