EXHIBIT 10.9
SEPARATION AGREEMENT AND FULL RELEASE
-------------------------------------
This Separation Agreement and Full Release (the "Agreement") dated as
of February 28, 2001 by and between Xxxxxxxxx X. Xxxxx ("Xxxxx") and Ocwen
Federal Bank FSB, its parent company, subsidiaries and affiliates, including
without limitation Ocwen Financial Corporation, its subsidiaries and affiliates
(collectively, the "Company").
In consideration of the mutual covenants and agreements contained
herein and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree as follows:
1. The parties agree that Xxxxx'x employment with the Company
will end effective March 1, 2001 (the "Separation Date").
Thereafter, Xxxxx will serve as a consultant to the Company
subject to termination at any time by either Xxxxx or the
Company (the "Consulting Termination Date"), but in any event
no later than May 16, 2001. Ocwen shall pay to Xxxxx by check
the sum of $12,307.69 every two weeks commencing March 16,
2001 and ending 52 weeks after the Consulting Termination
Date.
2. On or prior to the Consulting Termination Date, the Company
and Xxxxx shall enter into the Amended and Restated
Non-Qualified Option Agreements in the form of Exhibits A
through D attached hereto and incorporated herein by reference
(the "Amended Option Agreements").
3. In consideration for the payments set forth above, Xxxxx
hereby (i) waives any and all rights to salary, incentive
compensation and benefits, whether earned or unearned, and
whether due or to become due, from the Company; (ii) agrees
that the Amended Option Agreements set forth the full and
complete agreement between Xxxxx and the Company regarding any
and all right to acquire stock or securities of the Company
(via options or otherwise); and (iii) fully and forever
releases and discharges from liability, and covenants not to
xxx, the Company and its affiliates (including parent and
subsidiary companies), officers, directors, managers, counsel
and agents and representatives of any sort, both present and
former, for any and all claims, damages, actions and causes of
action, in law or in equity, of every nature which Xxxxx may
ever have had, now has or may in the future have which are
known or may subsequently be discovered by Xxxxx arising out
of, or in connection with or related to Xxxxx'x employment
with the Company and/or separation from employment with the
Company (including as relates to her employment as a
consultant to the Company), including but not limited to any
contracts, agreements and promises, written and oral; any and
all claims of discrimination on account of sex, race, age,
disability, handicap, national origin, religion, veteran
status, marital status or sexual orientation and claims or
causes of action based upon any equal opportunity laws,
ordinances, regulations or orders including, but not limited
to, Title VII of the Civil Rights Act of 1964, the Age
Discrimination in Employment Act, Executive Order 11246, The
Americans with Disabilities Act, The Rehabilitation Act and
any applicable state or local antidiscrimination statutes;
claims for wrongful termination actions of any type; breach of
express or implied covenant of good faith and fair dealing;
intentional or negligent infliction of emotional distress;
1
intentional or negligent failure to supervise, train, hire or
dismiss; and claims for fraud, misrepresentation, libel,
slander or invasion of privacy. Xxxxx agrees that she will not
file any claim or join in any claim as an individual or a
member of a class in any federal, state or local court or
agency in regards to claims of herself or others relating to
her employment with the Company or her knowledge gained during
the course of that employment. Nothing in this paragraph is
intended to limit in any way the Company's responsibility to
indemnify Xxxxx for actions taken prior to the Consulting
Termination Date in accordance with the Florida Business
Corporation Act.
4. Xxxxx further agrees and covenants that Xxxxx has not and will
not remove from the Company premises any item belonging to the
Company and its affiliates, including office equipment, files,
business records or correspondence, customer lists, computer
data and proprietary or confidential information
("Information") and that Xxxxx has not and will not disclose
or use any Information and/or trade secrets of the Company and
its affiliates. Xxxxx agrees to keep all such Information
confidential and not disclose or use the Information for any
purpose, or divulge or disclose that Information to any person
other than Employees of the Company. Xxxxx acknowledges and
agrees that nothing in the preceding sentence shall be
interpreted or construed as creating or establishing the
relationship of employer and employee between Company and
Xxxxx during the period in which Xxxxx serves as a consultant
to the Company.
5. Xxxxx acknowledges that during the term of her employment she
has been provided access to confidential information and
Company's clients, customers and others with whom Company has
formed valuable business arrangements. Xxxxx agrees that
during the period in which she serves as a consultant to the
Company and for a period of eighteen (18) months from the
Consulting Termination Date she will not
(i) Take any action that would interfere with, diminish or impair
the valuable relationships that Company and/or Company's
Affiliates have with its or their customers and clients and
others with which Company and/or the Company's Affiliates have
business relationships or to which services are rendered;
(ii) Recruit or otherwise solicit or induce any person (natural or
otherwise) who is or becomes an employee or consultant of
Company or the Company's Affiliates to terminate his or her
employment with, or otherwise cease his or her relationship
with, Company or Company's Affiliates or hire any such
employee or consultant who has left the employ of the Company
or the Company's Affiliates within two (2) years after the
termination or expiration of such employee's or consultant's
employment with the Company or the Company's Affiliates, as
the case may be; or
(iii) Assist with others in engaging in any of the foregoing.
6. Xxxxx shall not, either directly or indirectly, disclose,
discuss or communicate to any entity or person, except her
attorney and/or her immediate family, any information
whatsoever regarding the existence or terms of this Agreement,
its nature or scope or the negotiations leading to it, unless
she is compelled to disclose such information pursuant to
legal process, and then only after reasonable notice to the
Company. Xxxxx shall not take any action or make any statement
which might tend to impugn, disparage, defame, discredit or
detract from the Company, its officers, employees (past or
present) or businesses. Xxxxx shall be responsible for
assuring that her family complies with the nondisclosure
commitments of this section. A breach by Xxxxx'x family will
be considered a breach by Xxxxx. The Company agrees not to
2
disclose or discuss the existence of this Agreement or any of
the terms hereof, its nature or its scope with any person
other than attorneys for the Company and officers, directors
and management employees of the Company who have a legitimate
need to know in order to maintain compliance with this
Agreement, unless the Company is compelled to disclose such
information pursuant to legal process.
7. Xxxxx shall fully cooperate with the Company and, upon
reasonable notice, furnish such information and assistance to
the Company, at Company's expense, as may be required by the
Company in connection with the Company's defense or pursuit of
any litigation, administrative action or investigation in
which the Company or any of its subsidiaries, parent companies
or affiliates is or hereafter becomes a party. Xxxxx affirms
that she has made no agreements, promises, representations,
express or implied, oral or written, or offered any
inducements on behalf of the Company that are not expressly
included in any contracts executed by the Company.
8. Violation of any provision of this Agreement by Xxxxx will
entitle the Company, in addition to and not in limitation of
any and all other remedies available to the Company at law or
in equity, upon proper showing, (a) to reimbursement of all
monies paid to Xxxxx pursuant to Paragraph 2 of this
Agreement, and (b) to payment by Xxxxx of the gain in value of
the Company's common stock received pursuant to the Amended
Option Agreement, or if the options have not yet been
exercised, the termination of the Amended Option Agreements.
Violation of any provision of this Agreement by others who
have learned the information from Xxxxx will subject Xxxxx to
an action for breach of the Agreement.
9. Any dispute with respect to this Agreement or Xxxxx'x
employment with the Company shall be decided by arbitration,
in the City of West Palm Beach, Florida, pursuant to the rules
of the American Arbitration Association then in effect.
Florida law shall apply to every aspect of this Agreement,
including but not limited to the interpretation, application
and enforcement of the terms of this Agreement.
10. The parties agree that this Agreement sets forth all the
promises and agreements between them and supersedes all prior
and contemporaneous agreements, understandings, inducements or
conditions, express or implied, oral or written, except as
contained herein. Notwithstanding any other term herein, Xxxxx
acknowledges and reaffirms her obligations in the Employee
Intellectual Property Agreement and understands that those
obligations remain effective following her separation from the
Company.
11. Both parties acknowledge that they have had the opportunity to
freely consult, if they so desire, with attorneys of their own
choosing prior to signing this document regarding the contents
and consequences of this document. The parties understand that
the payment and other matters agreed to herein are not to be
construed as an admission of or evidence of liability for any
violation of the law, willful or otherwise, by any person or
entity.
12. Xxxxx acknowledges that she has had the opportunity to request
and receive from the Company any information she needs in
order to make a knowing and voluntary release of all claims
and that she has had a sufficient time to consider the
consequences of this Agreement and understands each of the
statements in this Agreement.
3
IN WITNESS WHEREOF, the parties hereby voluntarily and knowingly enter into this
unconditional Separation Agreement and Full Release.
OCWEN FEDERAL BANK FSB
---------------------------
By:
Its:
/s/ XXXXXXXXX X. XXXXX
--------------------------
Xxxxxxxxx X. Xxxxx
STATE OF FLORIDA )
)SS
COUNTY OF PALM BEACH )
I hereby certify that on this __ day of March, 2001 personally appeared
Xxxxxxxxx X. Xxxxx, who is personally known to me, or who produced the following
as identification ___________________, and who acknowledged before me that she
executed the foregoing document as her free act and deed.
In Witness Whereof, I have hereunto set my hand and seal in the State
and County aforesaid as of this __ day of March, 2001.
-----------------------------------
Notary Public Signature
-----------------------------------
Printed or Typed Name of Notary
4
EXHIBIT A
AMENDED AND RESTATED NON-QUALIFIED STOCK OPTION AGREEMENT
THIS AMENDED AND RESTATED NON-QUALIFIED STOCK OPTION AGREEMENT made in the City
of West Palm Beach, Florida as of January 31, 1998, between OCWEN FINANCIAL
CORPORATION, a Florida corporation (the "Corporation"), and Xxxxxxxxx X. Xxxxx,
an employee of the Corporation or of a subsidiary (the "Employee").
As of January 31, 1998 the Corporation and the Employee entered into a
Non-Qualified Stock Option Agreement (the "Original Agreement") regarding the
Option (as defined therein) to purchase 147,348 shares of the Corporation's
common stock, par value $.01 per share ("Stock"). A copy of the Original
Agreement is attached hereto as Exhibit 1.
The parties have entered into that Separation Agreement and Full Release dated
February 28, 2001 (the "Separation Agreement") which sets forth the terms and
conditions by which Employee separated from employment with the Corporation.
The Corporation and the Employee desire hereby to amend and restate the Original
Agreement in its entirety to provide, INTER ALIA, for the Options to vest
pursuant to the terms and conditions hereof.
NOW THEREFORE, in consideration of the mutual covenants hereinafter set forth
and for other good and valuable consideration, and intending to be legally bond
hereby, the parties hereto have agreed, and do hereby agree, as follows:
1. OPTION GRANT
The Corporation hereby grants to the Employee, pursuant to and subject to the
1991 Plan, the right and option (the "Option") to purchase all or any part of an
aggregate of 147,348 shares of Stock from the Corporation for a purchase price
of $20.35 per share, on the terms and conditions herein set forth.
2. OPTION TERM
The term of the Option shall begin on the date of this Agreement and will
continue until the date which is 18 months from the Consulting Termination Date,
as such term is defined in the Separation Agreement, unless the Option is
earlier terminated under the terms of paragraph 5 hereof.
3. EXERCISE OF OPTION
The Option will be exercisable in whole or in part after the commencement of the
second year of the term of the Option and thereafter may, subject to the terms
and conditions of this Agreement, be exercised in whole or in part at any time
before it terminates. In no case may the Option be exercised as to less than 50
shares at any one time (or the remaining shares then purchasable under the
Option, if less than 50 shares). During the Employee's lifetime, the Option may
be exercised only by him/her or his/her guardian or legal representative. The
Employee shall have none of the rights of a stockholder with respect to any of
the shares of the Stock subject to the option until such shares shall be issued
in his/her name or the name of his/her designee following the exercise of the
Option.
4. METHOD OF OPTION EXERCISE
A. Subject to the terms and conditions of this Agreement, the Option may be
exercised by written notice to the Corporation at its Executive Offices
attention of the Secretary. Such notice shall state the election to exercise the
Option, shall state the number of shares in respect of which it is being
exercised (the "Purchased Shares") and shall be signed by the person or persons
so exercising the Option. Such notice shall be accompanied by (i) a personal
check payable to the order of the Corporation for payment of the full purchase
price of the Purchased Shares, (ii) delivery to the Corporation of the number of
shares of Stock duly endorsed for transfer and owned by the Employee which have
an aggregate Fair Value equal to the aggregate purchase price of the Purchased
Shares or (iii) payment therefor made in such other manner as may be acceptable
to the Corporation on such terms as may be determined by the Committee. "Fair
Value" shall mean the book value of the Stock as determined by the Committee
pursuant to the 1991 Plan. In addition to and at the time of payment of the
purchase price, the person exercising the Option shall pay to the Corporation
the full amount of any federal and state withholding or other taxes applicable
to the taxable income of such person resulting from such exercise in cash unless
the Committee in its sole discretion shall permit such taxes to be paid in
Stock.
5
B. The Corporation shall deliver a certificate or certificates representing said
shares as soon as practicable after receipt of the notice and all required
payments by the person or persons exercising the Option as provided in paragraph
4A. hereof. The certificate or certificates for the shares as to which the
Option have been so exercised shall not be registered until at least five
business days after the date of the exercise of the Option. Unless the person or
persons exercising the Option shall otherwise direct the Corporation in writing,
such certificate or certificates for the shares shall be registered in the name
of the person or persons so exercising the Option and shall be delivered as
aforesaid to or upon the written order of the person or persons exercising the
Option.
C. In the event the Option shall be exercised, pursuant to paragraphs 3 and 5
hereof, by any person or persons other than the Employee, such notice shall be
accompanied by appropriate proof of the derivative right of such person or
persons to exercise the Option.
D. The date of exercise of the Option shall be the date on which the notice, the
documents and all payments required under this paragraph 4 are received by the
Secretary. All shares that shall be purchased upon the exercise of the Option as
provided herein shall be fully paid and non-assessable.
5. TERMINATION OF OPTION
The Option may not be exercised to any extent after termination of the Option in
one of the ways, whichever first occurs, set forth below in this paragraph 5.
A. The Option shall terminate upon the exercise of such Option in the manner
provided in this Agreement and the 1991 Plan, whether or not the shares are
ultimately delivered.
B. The Option shall terminate on the date which is 18 months from the Consulting
Termination Date, as such term is defined in the Separation Agreement, in
accordance with paragraph 2 hereof.
6. ADJUSTMENT UPON CHANGES IN STOCK
If there shall be any change in the stock subject to the Option granted
hereunder, through merger, consolidation, reorganization, recapitalization,
stock dividend, stock split or other change in the corporate structure,
appropriate adjustments may be made by the Board of Directors of the Corporation
(or if the Corporation 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 1991 Plan and the number and kind of shares and
the price per share subject to the Option.
7. NON-TRANSFERABILITY OF OPTION
The Option shall not be transferable otherwise than by will or by the applicable
laws of descent and distribution. More particularly (but without limiting the
generality of the foregoing), the Option may not be assigned, transferred
(except as aforesaid), pledged or hypothecated in any way (whether by operation
of law or otherwise) and shall not be subject to execution, attachment or
similar process. Any attempted assignment, transfer, pledge, hypothecation or
other disposition of the Option contrary to the provisions hereof, and the levy
of any execution, attachment or similar process upon the Option, shall be null
and void and without effect.
8. PAYMENT OF EXPENSES AND COMPLIANCE WITH LAWS
The Corporation shall at all times during the term of the Option reserve and
keep available such number of shares of Stock as will be sufficient to satisfy
the requirements of this Agreement, shall pay all original issue and/or transfer
taxes with respect to the issue and/or transfer of shares pursuant hereto and
all other fees and expenses necessarily incurred by the Corporation in
connection therewith and will from time to time use its best efforts to comply
with all laws and regulations which, in the opinion of counsel for the
Corporation, shall be applicable thereto.
9. DEFINITIONS
As used herein, the term "subsidiary" shall mean any corporation (other than the
Corporation) in an unbroken chain of corporations beginning with the Corporation
if each of the corporations, other than the last corporation in such chain, owns
stock possessing at least 50% of the voting power in one of the other
corporations in such chain.
10. AMENDMENT
In the event that the Board of Directors of the Corporation shall amend the 1991
Plan under the provisions of Article VIII of the 1991 Plan and such amendment
shall modify or otherwise affect the subject matter of this Agreement, this
Agreement shall, to that extent, be deemed to be amended by such amendment to
the 1991 Plan. The Corporation shall notify the Employee in writing of any such
amendment to the 1991 Plan and this Agreement as soon as practicable after its
approval.
6
11. CONSTRUCTION
In the event of any conflict between the 1991 Plan and this Agreement, the
provisions of the 1991 Plan shall control. This Agreement shall be governed in
all respects by the laws of the State of Florida.
12. ENTIRE AGREEMENT
This Agreement constitutes the entire agreement between the Corporation and the
Employee and supersedes all other discussions, correspondence, representations,
understandings and agreements between the parties, with respect to the subject
matter hereof.
13. HEADINGS
The headings of the paragraphs of this Agreement are inserted for convenience
only and shall not be deemed a part hereof.
ATTEST: OCWEN FINANCIAL CORPORATION
By: /s/ XXXX X. XXXXX By: /s/ XXXXXXX X. XXXXX
----------------- ------------------------
Xxxx X. Xxxxx, Secretary Xxxxxxx X. Xxxxx, Chairman
and Chief Executive Officer
EMPLOYEE
By:
---------------------------------
(Legal Signature)
Name:
-------------------------------
(Print)
7
EXHIBIT B
AMENDED AND RESTATED NON-QUALIFIED STOCK OPTION AGREEMENT
THIS AMENDED AND RESTATED NON-QUALIFIED STOCK OPTION AGREEMENT made in the City
of West Palm Beach, Florida as of January 31, 1999, between OCWEN FINANCIAL
CORPORATION, a Florida corporation (the "Corporation"), and Xxxxxxxxx X. Xxxxx,
an employee of the Corporation or of a subsidiary (the "Employee").
As of January 31, 1999 the Corporation and the Employee entered into a
Non-Qualified Stock Option Agreement (the "Original Agreement") regarding the
Option (as defined therein) to purchase 12,572 shares of the Corporation's
common stock, par value $.01 per share ("Stock"). A copy of the Original
Agreement is attached hereto as Exhibit 1.
The parties have entered into that Separation Agreement and Full Release dated
February 28, 2001 (the "Separation Agreement") which sets forth the terms and
conditions by which Employee separated from employment with the Corporation.
The Corporation and the Employee desire hereby to amend and restate the Original
Agreement in its entirety to provide, INTER ALIA, for the Options to vest
pursuant to the terms and conditions hereof.
NOW THEREFORE, in consideration of the mutual covenants hereinafter set forth
and for other good and valuable consideration, and intending to be legally bond
hereby, the parties hereto have agreed, and do hereby agree, as follows:
1. OPTION GRANT
The Corporation hereby grants to the Employee, pursuant to and subject to the
1991 Plan, the right and option (the "Option") to purchase all or any part of an
aggregate of 12,572 shares of Stock from the Corporation for a purchase price of
$12.3125 per share, on the terms and conditions herein set forth.
2. OPTION TERM
The term of the Option shall begin on the date of this Agreement and will
continue until the date which is 18 months from the Consulting Termination Date,
as such term is defined in the Separation Agreement, unless the Option is
earlier terminated under the terms of paragraph 5 hereof.
3. EXERCISE OF OPTION
One third of the Option will be exercisable in whole or in part after the
commencement of each of the second, third and fourth years of the term of the
Option and thereafter each such third may, subject to the terms and conditions
of this Agreement, be exercised in whole or in part at any time before the
Option terminates. In no case may the Option be exercised as to less than 50
shares at any one time (or the remaining shares then purchasable under the
Option, if less than 50 shares) or for a fractional share. During the Employee's
lifetime, the Option may be exercised only by him/her or his/her guardian or
legal representative. The Employee shall have none of the rights of a
stockholder with respect to any of the shares of the Stock subject to the option
until such shares shall be issued in his/her name or the name of his/her
designee following the exercise of the Option.
4. METHOD OF OPTION EXERCISE
A. Subject to the terms and conditions of this Agreement, the Option may be
exercised by written notice to the Corporation at its Executive Offices
attention of the Secretary. Such notice shall state the election to exercise the
Option, shall state the number of shares in respect of which it is being
exercised (the "Purchased Shares") and shall be signed by the person or persons
so exercising the Option. Such notice shall be accompanied by (i) a personal
check payable to the order of the Corporation for payment of the full purchase
price of the Purchased Shares, (ii) delivery to the Corporation of the number of
shares of Stock duly endorsed for transfer and owned by the Employee which have
an aggregate Fair Value equal to the aggregate purchase price of the Purchased
Shares or (iii) payment therefor made in such other manner as may be acceptable
to the Corporation on such terms as may be determined by the Committee. "Fair
Value" shall mean the book value of the Stock as determined by the Committee
pursuant to the 1991 Plan. In addition to and at the time of payment of the
purchase price, the person exercising the Option shall pay to the Corporation
the full amount of any federal and state withholding or other taxes applicable
to the taxable income of such person resulting from such exercise in cash unless
the Committee in its sole discretion shall permit such taxes to be paid in
Stock.
8
B. The Corporation shall deliver a certificate or certificates representing said
shares as soon as practicable after receipt of the notice and all required
payments by the person or persons exercising the Option as provided in paragraph
4A. hereof. The certificate or certificates for the shares as to which the
Option have been so exercised shall not be registered until at least five
business days after the date of the exercise of the Option. Unless the person or
persons exercising the Option shall otherwise direct the Corporation in writing,
such certificate or certificates for the shares shall be registered in the name
of the person or persons so exercising the Option and shall be delivered as
aforesaid to or upon the written order of the person or persons exercising the
Option.
C. In the event the Option shall be exercised, pursuant to paragraphs 3 and 5
hereof, by any person or persons other than the Employee, such notice shall be
accompanied by appropriate proof of the derivative right of such person or
persons to exercise the Option.
D. The date of exercise of the Option shall be the date on which the notice, the
documents and all payments required under this paragraph 4 are received by the
Secretary. All shares that shall be purchased upon the exercise of the Option as
provided herein shall be fully paid and non-assessable.
5. TERMINATION OF OPTION
The Option may not be exercised to any extent after termination of the Option in
one of the ways, whichever first occurs, set forth below in this paragraph 5.
A. The Option shall terminate upon the exercise of such Option in the manner
provided in this Agreement and the 1991 Plan, whether or not the shares are
ultimately delivered.
B. The Option shall terminate on the date which is 18 months from the Consulting
Termination Date, as such term is defined in the Separation Agreement, in
accordance with paragraph 2 hereof.
6. ADJUSTMENT UPON CHANGES IN STOCK
If there shall be any change in the stock subject to the Option granted
hereunder, through merger, consolidation, reorganization, recapitalization,
stock dividend, stock split or other change in the corporate structure,
appropriate adjustments may be made by the Board of Directors of the Corporation
(or if the Corporation 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 1991 Plan and the number and kind of shares and
the price per share subject to the Option.
7. NON-TRANSFERABILITY OF OPTION
The Option shall not be transferable otherwise than by will or by the applicable
laws of descent and distribution. More particularly (but without limiting the
generality of the foregoing), the Option may not be assigned, transferred
(except as aforesaid), pledged or hypothecated in any way (whether by operation
of law or otherwise) and shall not be subject to execution, attachment or
similar process. Any attempted assignment, transfer, pledge, hypothecation or
other disposition of the Option contrary to the provisions hereof, and the levy
of any execution, attachment or similar process upon the Option, shall be null
and void and without effect.
8. PAYMENT OF EXPENSES AND COMPLIANCE WITH LAWS
The Corporation shall at all times during the term of the Option reserve and
keep available such number of shares of Stock as will be sufficient to satisfy
the requirements of this Agreement, shall pay all original issue and/or transfer
taxes with respect to the issue and/or transfer of shares pursuant hereto and
all other fees and expenses necessarily incurred by the Corporation in
connection therewith and will from time to time use its best efforts to comply
with all laws and regulations which, in the opinion of counsel for the
Corporation, shall be applicable thereto.
9
9. DEFINITIONS
As used herein, the term "subsidiary" shall mean any corporation (other than the
Corporation) in an unbroken chain of corporations beginning with the Corporation
if each of the corporations, other than the last corporation in such chain, owns
stock possessing at least 50% of the voting power in one of the other
corporations in such chain.
10. AMENDMENT
In the event that the Board of Directors of the Corporation shall amend the 1991
Plan under the provisions of Article VIII of the 1991 Plan and such amendment
shall modify or otherwise affect the subject matter of this Agreement, this
Agreement shall, to that extent, be deemed to be amended by such amendment to
the 1991 Plan. The Corporation shall notify the Employee in writing of any such
amendment to the 1991 Plan and this Agreement as soon as practicable after its
approval.
11. CONSTRUCTION
In the event of any conflict between the 1991 Plan and this Agreement, the
provisions of the 1991 Plan shall control. This Agreement shall be governed in
all respects by the laws of the State of Florida.
12. ENTIRE AGREEMENT
This Agreement constitutes the entire agreement between the Corporation and the
Employee and supersedes all other discussions, correspondence, representations,
understandings and agreements between the parties, with respect to the subject
matter hereof.
13. HEADINGS
The headings of the paragraphs of this Agreement are inserted for convenience
only and shall not be deemed a part hereof.
ATTEST: OCWEN FINANCIAL CORPORATION
By: /s/ XXXX X. XXXXX By:/s/ XXXXXXX X. XXXXX
------------------------ --------------------------
Xxxx X. Xxxxx, Secretary Xxxxxxx X. Xxxxx, Chairman
and Chief Executive Officer
EMPLOYEE
By:
---------------------------------
(Legal Signature)
Name:
-------------------------------
(Print)
10
EXHIBIT C
AMENDED AND RESTATED NON-QUALIFIED STOCK OPTION AGREEMENT
THIS AMENDED AND RESTATED NON-QUALIFIED STOCK OPTION AGREEMENT made in the City
of West Palm Beach, Florida as of March 7, 2000, between OCWEN FINANCIAL
CORPORATION, a Florida corporation (the "Corporation"), and Xxxxxxxxx X. Xxxxx,
an employee of the Corporation or of a subsidiary (the "Employee").
As of March 7, 2000 the Corporation and the Employee entered into a
Non-Qualified Stock Option Agreement (the "Original Agreement") regarding the
Option (as defined therein) to purchase 28,894 shares of the Corporation's
common stock, par value $.01 per share ("Stock"). A copy of the Original
Agreement is attached hereto as Exhibit 1.
The parties have entered into that Separation Agreement and Full Release dated
as of February 28, 2001 (the "Separation Agreement") which sets forth the terms
and conditions by which Employee separated from employment with the Corporation.
The Corporation and the Employee desire hereby to amend and restate the Original
Agreement in its entirety to provide, INTER ALIA, for the Options to vest
pursuant to the terms and conditions hereof.
NOW THEREFORE, in consideration of the mutual covenants hereinafter set forth
and for other good and valuable consideration, and intending to be legally bond
hereby, the parties hereto have agreed, and do hereby agree, as follows:
1. OPTION GRANT
The Corporation hereby grants to the Employee, pursuant to and subject to the
1991 Plan, the right and option (the "Option") to purchase all or any part of an
aggregate of 28,894 shares of Stock from the Corporation for a purchase price of
$6.25 per share, on the terms and conditions herein set forth.
2. OPTION TERM
The term of the Option shall begin on the date of this Agreement and will
continue until the date which is 18 months from the Consulting Termination Date,
as such term is defined in the Separation Agreement, unless the Option is
earlier terminated under the terms of paragraph 5 hereof.
3. EXERCISE OF OPTION
One third of the Option will be exercisable in whole or in part after the
commencement of each of the second, third, fourth years of the term of the
Option and thereafter each such third may, subject to the terms and conditions
of this Agreement, be exercised in whole or in part at any time before the
Option terminates. In no case may the Option be exercised as to less than 50
shares at any one time (or the remaining shares then purchasable under the
Option, if less than 50 shares) or for a fractional share. During the Employee's
lifetime, the Option may be exercised only by him/her or his/her guardian or
legal representative. The Employee shall have none of the rights of a
stockholder with respect to any of the shares of the Stock subject to the option
until such shares shall be issued in his/her name or the name of his/her
designee following the exercise of the Option.
4. METHOD OF OPTION EXERCISE
A. Subject to the terms and conditions of this Agreement, the Option may be
exercised by written notice to the Corporation at its Executive Offices
attention of the Secretary. Such notice shall state the election to exercise the
Option, shall state the number of shares in respect of which it is being
exercised (the "Purchased Shares") and shall be signed by the person or persons
so exercising the Option. Such notice shall be accompanied by (i) a personal
check payable to the order of the Corporation for payment of the full purchase
price of the Purchased Shares, (ii) delivery to the Corporation of the number of
shares of Stock duly endorsed for transfer and owned by the Employee which have
an aggregate Fair Value equal to the aggregate purchase price of the Purchased
Shares or (iii) payment therefor made in such other manner as may be acceptable
to the Corporation on such terms as may be determined by the Committee. "Fair
Value" shall mean the book value of the Stock as determined by the Committee
pursuant to the 1991 Plan. In addition to and at the time of payment of the
purchase price, the person exercising the Option shall pay to the Corporation
the full amount of any federal and state withholding or other taxes applicable
to the taxable income of such person resulting from such exercise in cash unless
the Committee in its sole discretion shall permit such taxes to be paid in
Stock.
11
B. The Corporation shall deliver a certificate or certificates representing said
shares as soon as practicable after receipt of the notice and all required
payments by the person or persons exercising the Option as provided in paragraph
4A. hereof. The certificate or certificates for the shares as to which the
Option have been so exercised shall not be registered until at least five
business days after the date of the exercise of the Option. Unless the person or
persons exercising the Option shall otherwise direct the Corporation in writing,
such certificate or certificates for the shares shall be registered in the name
of the person or persons so exercising the Option and shall be delivered as
aforesaid to or upon the written order of the person or persons exercising the
Option.
C. In the event the Option shall be exercised, pursuant to paragraphs 3 and 5
hereof, by any person or persons other than the Employee, such notice shall be
accompanied by appropriate proof of the derivative right of such person or
persons to exercise the Option.
D. The date of exercise of the Option shall be the date on which the notice, the
documents and all payments required under this paragraph 4 are received by the
Secretary. All shares that shall be purchased upon the exercise of the Option as
provided herein shall be fully paid and non-assessable.
5. TERMINATION OF OPTION
The Option may not be exercised to any extent after termination of the Option in
one of the ways, whichever first occurs, set forth below in this paragraph 5.
A. The Option shall terminate upon the exercise of such Option in the manner
provided in this Agreement and the 1991 Plan, whether or not the shares are
ultimately delivered.
B. The Option shall terminate on the date which is 18 months from the Consulting
Termination Date, as such term is defined in the Separation Agreement, in
accordance with paragraph 2 hereof.
6. ADJUSTMENT UPON CHANGES IN STOCK
If there shall be any change in the stock subject to the Option granted
hereunder, through merger, consolidation, reorganization, recapitalization,
stock dividend, stock split or other change in the corporate structure,
appropriate adjustments may be made by the Board of Directors of the Corporation
(or if the Corporation 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 1991 Plan and the number and kind of shares and
the price per share subject to the Option.
7. NON-TRANSFERABILITY OF OPTION
The Option shall not be transferable otherwise than by will or by the applicable
laws of descent and distribution. More particularly (but without limiting the
generality of the foregoing), the Option may not be assigned, transferred
(except as aforesaid), pledged or hypothecated in any way (whether by operation
of law or otherwise) and shall not be subject to execution, attachment or
similar process. Any attempted assignment, transfer, pledge, hypothecation or
other disposition of the Option contrary to the provisions hereof, and the levy
of any execution, attachment or similar process upon the Option, shall be null
and void and without effect.
8. PAYMENT OF EXPENSES AND COMPLIANCE WITH LAWS
The Corporation shall at all times during the term of the Option reserve and
keep available such number of shares of Stock as will be sufficient to satisfy
the requirements of this Agreement, shall pay all original issue and/or transfer
taxes with respect to the issue and/or transfer of shares pursuant hereto and
all other fees and expenses necessarily incurred by the Corporation in
connection therewith and will from time to time use its best efforts to comply
with all laws and regulations which, in the opinion of counsel for the
Corporation, shall be applicable thereto.
12
9. DEFINITIONS
As used herein, the term "subsidiary" shall mean any corporation (other than the
Corporation) in an unbroken chain of corporations beginning with the Corporation
if each of the corporations, other than the last corporation in such chain, owns
stock possessing at least 50% of the voting power in one of the other
corporations in such chain.
10. AMENDMENT
In the event that the Board of Directors of the Corporation shall amend the 1991
Plan under the provisions of Article VIII of the 1991 Plan and such amendment
shall modify or otherwise affect the subject matter of this Agreement, this
Agreement shall, to that extent, be deemed to be amended by such amendment to
the 1991 Plan. The Corporation shall notify the Employee in writing of any such
amendment to the 1991 Plan and this Agreement as soon as practicable after its
approval.
11. CONSTRUCTION
In the event of any conflict between the 1991 Plan and this Agreement, the
provisions of the 1991 Plan shall control. This Agreement shall be governed in
all respects by the laws of the State of Florida.
12. ENTIRE AGREEMENT
This Agreement constitutes the entire agreement between the Corporation and the
Employee and supersedes all other discussions, correspondence, representations,
understandings and agreements between the parties, with respect to the subject
matter hereof.
13. HEADINGS
The headings of the paragraphs of this Agreement are inserted for convenience
only and shall not be deemed a part hereof.
ATTEST: OCWEN FINANCIAL CORPORATION
By: /s/ XXXX X. XXXXX By: /s/ XXXXXXX X. XXXXX
----------------- --------------------
Xxxx X. Xxxxx, Secretary Xxxxxxx X. Xxxxx, Chairman
and Chief Executive Officer
EMPLOYEE
By:
---------------------------------
(Legal Signature)
Name:
-------------------------------
(Print)
13
EXHIBIT D
AMENDED AND RESTATED NON-QUALIFIED STOCK OPTION AGREEMENT
THIS AMENDED AND RESTATED NON-QUALIFIED STOCK OPTION AGREEMENT made in the City
of West Palm Beach, Florida as of January 31, 2001, between OCWEN FINANCIAL
CORPORATION, a Florida corporation (the "Corporation"), and Xxxxxxxxx X. Xxxxx,
an employee of the Corporation or of a subsidiary (the "Employee").
As of January 1, 2001 the Corporation and the Employee entered into a
Non-Qualified Stock Option Agreement (the "Original Agreement") regarding the
Option (as defined therein) to purchase 85,790 shares of the Corporation's
common stock, par value $.01 per share ("Stock"). A copy of the Original
Agreement is attached hereto as Exhibit 1.
The parties have entered into that Separation Agreement and Full Release dated
as of February 28, 2001 (the "Separation Agreement") which sets forth the terms
and conditions by which Employee separated from employment with the Corporation.
The Corporation and the Employee desire hereby to amend and restate the Original
Agreement in its entirety to provide, INTER ALIA, for the Options to vest
pursuant to the terms and conditions hereof.
NOW THEREFORE, in consideration of the mutual covenants hereinafter set forth
and for other good and valuable consideration, and intending to be legally bond
hereby, the parties hereto have agreed, and do hereby agree, as follows:
1. OPTION GRANT
The Corporation hereby grants to the Employee, pursuant to and subject to the
1991 Plan, the right and option (the "Option") to purchase all or any part of an
aggregate of 85,790 shares of Stock from the Corporation for a purchase price of
$4.08625 per share, on the terms and conditions herein set forth.
2. OPTION TERM
The term of the Option shall begin on the date of this Agreement and will
continue until the date which is 18 months from the Consulting Termination Date,
as such term is defined in the Separation Agreement, unless the Option is
earlier terminated under the terms of paragraph 5 hereof.
3. EXERCISE OF OPTION
One fifth of the Option will be exercisable in whole or in part immediately upon
grant and one fourth of the of the balance of the Option will be exercisable in
whole or in part after the commencement of each of the second, third, fourth and
fifth years of the term of the Option and thereafter each such portion may,
subject to the terms and conditions of this Agreement, be exercised in whole or
in part at any time before the Option terminates. In no case may the Option be
exercised as to less than 50 shares at any one time (or the remaining shares
then purchasable under the Option, if less than 50 shares) or for a fractional
share. During the Employee's lifetime, the Option may be exercised only by
him/her or his/her guardian or legal representative. The Employee shall have
none of the rights of a stockholder with respect to any of the shares of the
Stock subject to the option until such shares shall be issued in his/her name or
the name of his/her designee following the exercise of the Option.
4. METHOD OF OPTION EXERCISE
A. Subject to the terms and conditions of this Agreement, the Option may be
exercised by written notice to the Corporation at its Executive Offices
attention of the Secretary. Such notice shall state the election to exercise the
Option, shall state the number of shares in respect of which it is being
exercised (the "Purchased Shares") and shall be signed by the person or persons
so exercising the Option. Such notice shall be accompanied by (i) a personal
check payable to the order of the Corporation for payment of the full purchase
price of the Purchased Shares, (ii) delivery to the Corporation of the number of
shares of Stock duly endorsed for transfer and owned by the Employee which have
an aggregate Fair Value equal to the aggregate purchase price of the Purchased
Shares or (iii) payment therefor made in such other manner as may be acceptable
to the Corporation on such terms as may be determined by the Committee. "Fair
Value" shall mean the book value of the Stock as determined by the Committee
pursuant to the 1991 Plan. In addition to and at the time of payment of the
purchase price, the person exercising the Option shall pay to the Corporation
the full amount of any federal and state withholding or other taxes applicable
to the taxable income of such person resulting from such exercise in cash unless
the Committee in its sole discretion shall permit such taxes to be paid in
Stock.
14
B. The Corporation shall deliver a certificate or certificates representing said
shares as soon as practicable after receipt of the notice and all required
payments by the person or persons exercising the Option as provided in paragraph
4A. hereof. The certificate or certificates for the shares as to which the
Option have been so exercised shall not be registered until at least five
business days after the date of the exercise of the Option. Unless the person or
persons exercising the Option shall otherwise direct the Corporation in writing,
such certificate or certificates for the shares shall be registered in the name
of the person or persons so exercising the Option and shall be delivered as
aforesaid to or upon the written order of the person or persons exercising the
Option.
C. In the event the Option shall be exercised, pursuant to paragraphs 3 and 5
hereof, by any person or persons other than the Employee, such notice shall be
accompanied by appropriate proof of the derivative right of such person or
persons to exercise the Option.
D. The date of exercise of the Option shall be the date on which the notice, the
documents and all payments required under this paragraph 4 are received by the
Secretary. All shares that shall be purchased upon the exercise of the Option as
provided herein shall be fully paid and non-assessable.
5. TERMINATION OF OPTION
The Option may not be exercised to any extent after termination of the Option in
one of the ways, whichever first occurs, set forth below in this paragraph 5.
A. The Option shall terminate upon the exercise of such Option in the manner
provided in this Agreement and the 1991 Plan, whether or not the shares are
ultimately delivered.
B. The Option shall terminate on the date which is 18 months from the Consulting
Termination Date, as such term is defined in the Separation Agreement, in
accordance with paragraph 2 hereof.
6. ADJUSTMENT UPON CHANGES IN STOCK
If there shall be any change in the stock subject to the Option granted
hereunder, through merger, consolidation, reorganization, recapitalization,
stock dividend, stock split or other change in the corporate structure,
appropriate adjustments may be made by the Board of Directors of the Corporation
(or if the Corporation 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 1991 Plan and the number and kind of shares and
the price per share subject to the Option.
7. NON-TRANSFERABILITY OF OPTION
The Option shall not be transferable otherwise than by will or by the applicable
laws of descent and distribution. More particularly (but without limiting the
generality of the foregoing), the Option may not be assigned, transferred
(except as aforesaid), pledged or hypothecated in any way (whether by operation
of law or otherwise) and shall not be subject to execution, attachment or
similar process. Any attempted assignment, transfer, pledge, hypothecation or
other disposition of the Option contrary to the provisions hereof, and the levy
of any execution, attachment or similar process upon the Option, shall be null
and void and without effect.
8. PAYMENT OF EXPENSES AND COMPLIANCE WITH LAWS
The Corporation shall at all times during the term of the Option reserve and
keep available such number of shares of Stock as will be sufficient to satisfy
the requirements of this Agreement, shall pay all original issue and/or transfer
taxes with respect to the issue and/or transfer of shares pursuant hereto and
all other fees and expenses necessarily incurred by the Corporation in
connection therewith and will from time to time use its best efforts to comply
with all laws and regulations which, in the opinion of counsel for the
Corporation, shall be applicable thereto.
15
9. DEFINITIONS
As used herein, the term "subsidiary" shall mean any corporation (other than the
Corporation) in an unbroken chain of corporations beginning with the Corporation
if each of the corporations, other than the last corporation in such chain, owns
stock possessing at least 50% of the voting power in one of the other
corporations in such chain.
10. AMENDMENT
In the event that the Board of Directors of the Corporation shall amend the 1991
Plan under the provisions of Article VIII of the 1991 Plan and such amendment
shall modify or otherwise affect the subject matter of this Agreement, this
Agreement shall, to that extent, be deemed to be amended by such amendment to
the 1991 Plan. The Corporation shall notify the Employee in writing of any such
amendment to the 1991 Plan and this Agreement as soon as practicable after its
approval.
11. CONSTRUCTION
In the event of any conflict between the 1991 Plan and this Agreement, the
provisions of the 1991 Plan shall control. This Agreement shall be governed in
all respects by the laws of the State of Florida.
12. ENTIRE AGREEMENT
This Agreement constitutes the entire agreement between the Corporation and the
Employee and supersedes all other discussions, correspondence, representations,
understandings and agreements between the parties, with respect to the subject
matter hereof.
13. HEADINGS
The headings of the paragraphs of this Agreement are inserted for convenience
only and shall not be deemed a part hereof.
ATTEST: OCWEN FINANCIAL CORPORATION
By: /s/ XXXX X. XXXXX By:/s/ XXXXXXX X. XXXXX
----------------- --------------------
Xxxx X. Xxxxx, Secretary Xxxxxxx X. Xxxxx, Chairman
and Chief Executive Officer
EMPLOYEE
By:
---------------------------------
(Legal Signature)
Name:
-------------------------------
(Print)
16
