FORM OF PUT OPTION AGREEMENT
Exhibit 10.13
FORM OF
PUT OPTION AGREEMENT
PUT OPTION AGREEMENT
This
PUT OPTION AGREEMENT (the “Agreement”) is dated
as of February
, 2010 by and
among Altisource Portfolio Solutions S.A., an entity organized under the laws of Luxembourg (the
“Company”), and (the “Management Trust”).
WHEREAS, the Company, the Management Trust and other parties thereto are parties to the
Purchase Agreement; and
WHEREAS, pursuant to the terms of the Purchase Agreement, the Company has agreed to issue
shares of Common Stock to the Management Trust and to enter into this Agreement granting certain
put rights with respect to 157,613 shares of such Common Stock (the “Put Eligible Shares”) on the
terms and subject to the conditions set forth herein; and
WHEREAS, the Management Trust has agreed to certain transfer restrictions on the disposition
of the Common Stock as set forth herein and in the Rights Agreement.
NOW, THEREFORE, in consideration of the mutual covenants herein contained and other valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto
hereby agree as follows:
1. Certain Definitions.
As used in this Agreement, the following terms shall have the following meanings:
“Affiliate” shall mean, with respect to any Person, any direct or indirect subsidiary
of such Person and any other Person directly or indirectly controlling, controlled by, or under
common control with such Person. As used in this definition, “control” (including with correlative
meanings, “controlled by” and “under common control with”) means possession, directly or
indirectly, of the power to direct or cause the direction of management or policies, or the power
to appoint and remove a majority of the board or other governing body (whether through ownership of
securities or partnership or other ownership interests, by contract or otherwise), of a Person.
“Agreement” shall have the meaning set forth in the opening paragraph.
“Anniversary Date” shall mean the first Business Day subsequent to each anniversary of
the date of the closing of the transactions contemplated by the Purchase Agreement.
“Business Day” shall mean a day other than a Saturday, Sunday or other day on which
commercial banks in St. Louis, Missouri are authorized or required by Law to remain closed. Any
event the scheduled occurrence of which would fall on a day that is not a Business Day shall be
deferred until the next succeeding Business Day.
“Change in Control” with respect to any company shall occur upon (A) the closing of
the sale, conveyance, lease, license, transfer or other disposition of all or substantially all of
such
company’s assets, property or business to any Person or “group” (within the meaning of Section
13(d) or 14(d) of the 1934 Act), (B) the consummation of a merger or consolidation of such company
with or into another entity (except a merger or consolidation in which the holders of voting
securities of such company immediately prior to such merger or consolidation continue to hold at
least 50% of the voting securities of the surviving entity after the transaction), or (C) the
closing of the transfer of such company’s securities (whether by merger, consolidation or
otherwise), in one transaction or a series of related transactions, to any Person or “group”, if
after such closing, such Person or “group” would hold more than 50% of the outstanding voting
securities of such company (or the surviving entity); provided, however, that no Change in Control
shall occur under subsections (A), (B) or (C) if 50% or more of the outstanding voting securities
of such Person or “group” that acquires such assets, property, business or securities or that is a
party to such merger or consolidation is owned, directly or indirectly, by a Person or a “group”
that owns, directly or indirectly, a majority of the voting securities of such company. Without
limiting the applicability of the forgoing and by example only, a Change in Control with respect to
MPA would not occur after the date hereof upon the transfer of the assets or equity of MPA to any
entity of which the Company owns, directly or indirectly, at least 50% of the outstanding voting
securities of such entity.
“Common Stock” shall mean the Company’s common stock, par value $1.00 per share, and
any securities into which such shares may hereinafter be reclassified.
“Company” shall have the meaning set forth in the opening paragraph.
“Excluded Members” shall have the meaning set forth in Section 2(d) of the Agreement.
“Indemnity Escrow Agreement” shall have the meaning set forth in Section 2(b) of the
Agreement.
“MPA” shall mean The Mortgage Partnership of America, L.L.C., a Missouri limited
liability company.
“Net Payment” shall have the meaning set forth in Section 2(c) of the Agreement.
“Notice of Objection” shall have the meaning set forth in Section 2(e) of the
Agreement.
“Person” shall mean any individual, corporation, partnership, limited liability
company, firm, joint venture, association, joint-stock company, trust, unincorporated organization,
governmental authority or other entity.
“Purchase Agreement” shall mean the Purchase and Sale Agreement, dated the date
hereof, by and among the Company, the Management Trust and any other parties identified on the
signature pages thereto, as such agreement may be amended from time to time after the date hereof.
“Put” shall have the meaning set forth in Section 2 of the Agreement.
“Put Eligible Shares” shall have the meaning set forth in the Recitals to this
Agreement.
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“Put Failure” shall have the meaning set forth in Section 2(f) of the Agreement.
“Put Failure Escrow” shall mean the amount held in escrow pursuant to the Put Right
Escrow Agreement.
“Put Notice” shall have the meaning set forth in Section 2(a) of the Agreement.
“Put Obligation” shall have the meaning set forth in Section 2(a) of the Agreement.
“Put Purchase Price” shall have the meaning set forth in Section 2(a) of the
Agreement.
“Put Right Escrow Agreement” shall mean the Put Right Escrow Agreement dated as of the
date hereof by and among the Company, each management owned trust and the escrow agent.
“Redemption” shall have the meaning set forth in Section 2(c) of the Agreement.
“Registration Statement” shall mean any registration statement of the Company filed
with the SEC under the 1933 Act that covers the resale of any of the Shares, amendments and
supplements to such registration statement, including post-effective amendments, all exhibits and
all material incorporated by reference or deemed to be incorporated by reference in such
registration statement.
“Rights Agreement” shall mean the Rights Agreement dated as of the date hereof by and
between the Company and the Management Trust and any other parties identified on the signature
pages thereto.
“SEC” shall mean the U.S. Securities and Exchange Commission.
“Shares” shall mean the total shares of Common Stock initially issued pursuant to the
Purchase Agreement and held by the Management Trust and any permitted assignees to which shares
have been transferred.
“Threshold Insider Sale Amount” shall have the meaning set forth in Section 3(a)(ii)
of the Agreement.
“Top 20 Members” shall mean twenty (20) members of MPA and shall include the following
members: (x) the fifteen members of MPA who have been both members of MPA during each of the last
24 consecutive months and were the fifteen highest revenue generators for MPA in the prior calendar
year; and (y) five other members of MPA not listed in (x) above that the Company and the Management
Owner mutually agree are members that are integral to the overall success of MPA regardless of
revenue. The initial Top 20 Members shall be scheduled as of the entering into of this Agreement
on Schedule 1, attached hereto, and such Top 20 Members shall be redetermined as of each
Anniversary Date subject to the mutual agreement of the Company and the Management Owner; provided,
however, the initial Top 20 Members and subsequent Top 20 Members shall be subject to changes
caused as a result of a member becoming an Excluded Member, as described in Section 2(d)(ii). To
the extent the parties are to
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mutually agree on the five other members, such parties agree to be reasonable in determining
the five other members without delay or intent to hinder the process.
“1933 Act” shall mean the Securities Act of 1933, as amended, and the rules and
regulations promulgated thereunder.
“1934 Act” shall mean the Securities Exchange Act of 1934, as amended, and the rules
and regulations promulgated thereunder.
2. Put Rights
(a) Grant of Right. The Management Trust shall have the right on each Anniversary
Date through the fourth Anniversary Date, subject to the limitations set forth below, to require
the Company to redeem (the “Put”) up to 25% of the Put Eligible Shares (the “Put
Obligation”); provided, however, that, to the extent the Management Trust sells or otherwise
disposes of any Shares during the preceding 12-month period, the number of Put Eligible Shares
eligible to be Put to the Company on the subsequent Anniversary Date shall be reduced by the number
of Shares so sold or otherwise disposed during such preceding 12-month period. For purposes of the
above sentence and this Agreement, to the extent any Shares are transferred to successors or
assigns as described in Section 4(c) herein, then such Shares shall not be treated as “sold or
otherwise disposed of” in the above definition. The Management Trust may exercise its Put right
independently of any other Person. The price per share under the Put Obligation shall be US$16.84
as equitably adjusted for any stock splits, reverse stock splits, stock dividends, reorganizations,
recapitalization or other similar corporate events following the date hereof (the “Put Purchase
Price”). The Management Trust must provide an irrevocable notice to the Company of its desire
to exercise its Put on or before the relevant Anniversary Date (a “Put Notice”). Except in
the event of death or transfer to the grantor of the revocable trust, the rights pursuant to this
Section 2 shall not be transferrable by the Management Trust without the Company’s prior written
consent.
(b) Shares Ineligible for Put. No Share owned by the Management Trust shall be
subject to the Put Obligation that: (i) is held in escrow pursuant to the Indemnity Escrow
Agreement (the “Indemnity Escrow Agreement”); or (ii) is eligible for sale by the
Management Trust pursuant to Section 3(b)(i) of this Agreement; or (iii) was eligible to be Put
under the Put Obligation on any prior Anniversary Date (collectively, “Ineligible Shares”), and
such Put right with respect to such Share shall be forfeited. It is understood and agreed that
Ineligible Shares shall be included as part of the initial calculation of the total Shares eligible
for the Put and further described in Section 2(b) above. Notwithstanding the foregoing, for
purposes of calculating the total number of Put Eligible Shares subject to the Put Obligation, any
Shares held in escrow pursuant to the Indemnity Escrow Agreement that are released as a result of a
calculation made on an applicable Anniversary Date, shall not be deemed an “Ineligible Share”.
(c) Satisfaction of Put Obligation. The Company shall satisfy the Put Obligation by
paying to the Management Trust an amount equal to the number of Shares that are Put to the Company
by the Management Trust multiplied by either (i) the Put Purchase Price (a “Redemption”) or
(ii) the amount by which the Put Purchase Price exceeds the average closing price of the Common
Stock for the ten trading days preceding the most recent Anniversary Date
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(a “Net Payment”); provided that if the Company elects to make a Net Payment, the
Management Trust shall retain the Shares subject to the Put. Such payment shall be by wire
transfer or other immediately available funds to a bank or other account designated by the
Management Trust, which bank or other accounts were designated in writing by the Management Trust
to the Company at least two (2) Business Days prior to such payment date by the Company. The
Company’s election of method to satisfy the Put Obligation shall be in its sole discretion, may
vary among Anniversary Dates and may vary among the other Persons exercising the Put. If the
Company elects Redemption, the Management Trust shall deliver to the Company within 30 days after
the applicable Anniversary Date assignments of stock or similar documentation as might be required
by the Company’s transfer agent to effect the transfer of ownership of such Shares Put to the
Company. The Company shall deliver to the Management Trust the funds necessary to satisfy the
Redemption or Net Payment, as applicable, within 45 days after the applicable Anniversary Date.
(d) Conditions Precedent to Put Obligation. The Put Obligation shall terminate:
(i) If the employment with the Company or one of its Affiliates of
(“Management Owner”) is terminated by the Company based solely upon a felony conviction or
the Management Owner resigns for other than “good reason” (as defined in the Management Owner’s
employment agreement). Notwithstanding the foregoing, if the Management Owner’s employment is
terminated for other than a felony conviction, or the Management Owner resigns for “good reason,”
dies or becomes permanently disabled, the Management Owner will retain the rights under the Put
Obligation.
(ii) With respect to the Shares that may be Put to the Company as of any Anniversary Date if
either (A) 80% of the Top 20 Members of the Best Mortgage Cooperative, Inc. (the
“Cooperative”) during the prior twelve months determined as of the date hereof, and
determined on each Anniversary Date, respectively, are not members of the Cooperative on the
subsequent Anniversary Date, provided, however, that the Top 20 Members shall be determined after
excluding those members of the Cooperative that are (x) acquired in an arm’s length transaction by
an unaffiliated third party, (y) asked by the Company to resign as a member due to failure to
follow a management directive, or (z) who cease operations (each, an “Excluded Member”) or
(B) the overall number of members of the Cooperative fails to grow annually on a cumulative basis,
after exclusion of the Excluded Members for all prior twelve (12) month periods. By way of
example, if a Top 20 Member as of the date hereof ceased operations as of the first Anniversary
Date, then such member would not be counted as a Top 20 Member in such calculation set forth in
Section 2(d)(ii)(A) above and such member would be replaced by the next member on the list of
members that would otherwise qualify as a potential Top 20 Member and did not become an Excluded
Member as a result of a subsequent event in the succeeding 12 months.
(iii) If the conditions set forth in Section 2(d)(ii)(A) are not satisfied as of an applicable
Anniversary Date, the Management Trust shall forfeit its Put right with respect to such Anniversary
Date, but the Management Trust may exercise its Put right with respect to a successive Anniversary
Date (through the fourth Anniversary Date), if the other conditions set
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forth in Section 2(d)(ii)(A) and otherwise contained in this Agreement are satisfied for such
subsequent Anniversary Date.
(e) Dispute Resolution. If the Management Trust submits a Put Notice with respect to
Shares that the Company disputes are eligible to be Put because such Share is ineligible to be Put
under Section 2(b) or one or more conditions precedent to the Put Obligation under Section 2(d) are
not satisfied, then the Company shall provide a “Notice of Objection” to such Management
Trust by the tenth (10th) Business Day following the Company’s receipt of the applicable
Put Notice. The Company’s failure to provide timely a Notice of Objection shall be deemed an
acceptance by the Company of the Put Notice and upon such failure, with respect to such Put Notice
only, then the following shall occur (i) the conditions precedent under Section 2(d) shall
automatically be deemed satisfied, (ii) the Company shall have waived its right to object under the
Put Failure Escrow and (iii) Section 2(d) shall not be applicable. The Notice of Objection shall
contain information sufficient to support the Company’s objection. The Company and the Management
Trust shall attempt to resolve the dispute during the successive 10-Business Day period, after
which either party may submit the dispute to binding arbitration to be conducted in Indianapolis,
Indiana, or such other location mutually agreed to by the Company and the Management Trust with
whom an unresolved objection remains. The arbitration shall be governed by the Commercial
Arbitration Rules of the American Arbitration Association and decided by a panel of three impartial
and independent arbitrators. The Management Trust shall select one arbitrator; the Company shall
select one arbitrator; and the two selected arbitrators shall select the third arbitrator within 15
days of the day the last of the two arbitrators is selected. If the two arbitrators cannot agree
on the third arbitrator, the third arbitrator shall be selected pursuant to the Commercial
Arbitration Rules of the American Arbitration Association. Within 45 days of the date of
submission of the matter(s) to binding arbitration, the arbitrators shall convene a preliminary
hearing to determine the schedule for the arbitration, including the date of the arbitration
hearing which shall be conducted as expeditiously as possible after the demand for arbitration and
in any event within 120 days after the submittal of the matter(s) to arbitration, unless otherwise
agreed to by the parties thereto. The award rendered by the arbitrators shall be final,
non-appealable and binding on all parties, and judgment may be entered upon it by any court of
competent jurisdiction.
(f) Put Failure. In the event the conditions precedent under Section 2(d) are deemed
to have been satisfied, either automatically or as determined by binding arbitration, and the
Shares Put to the Company are Put Eligible Shares, and the Company then fails to duly satisfy a Put
Obligation within the next five Business Days (each, a “Put Failure”), the following rights
and remedies will be available to the Management Trust in addition to the Management Trust having
the right to enforce its rights under any other agreement and pursue any other rights and remedies
available to the Management Trust at law or in equity including, but not limited to, seeking
specific performance (subject to the case of (i) and (ii) below of the Management Trust’s
compliance with its share transfer obligations under Section 2(c)):
(i) that amount of the Put Failure Escrow required to satisfy such Put Obligation would be
released to the Management Trust; and
(ii) any non-compete and non-poaching obligations of the Management Trust and Management Owner
would be eliminated in the Purchase Agreement,
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such Management Owner Employment Agreement and any other Transaction Documents (as defined in
the Purchase Agreement) (unless the parties otherwise agree in writing), and all Shares held by the
Management Trust would fully vest and immediately become Unrestricted Stock (as defined in the
Purchase Agreement) if such stock were previously Restricted Stock (as defined in the Purchase
Agreement); and
(iii) all transfer restrictions imposed by this Agreement or imposed by the Rights Agreement
on all Shares of the Management Trust shall terminate, and all Shares of the Management Trust shall
fully vest.
(g) Funding of Put Right Escrow Agreement. The Company shall deposit a total of
$1,063,896 in cash into escrow pursuant to the Put Right Escrow Agreement, which shall satisfy the
Company’s obligation to fund such escrow with respect to the Management Trust and all other parties
to the Put Right Escrow Agreement and shall be deposited in 12 monthly installments of $88,658 on
the first Business Day of each calendar month following the closing of the transactions
contemplated by the Purchase Agreement.
3. Transfer Restrictions.
(a) Volume Limitations.
(i) Until the fourth Anniversary Date, after the Shares are transferrable pursuant to an
effective Registration Statement or otherwise not subject to volume limitations imposed by the 1933
Act, the Management Trust may only sell up to 25% of the shares of Restricted Stock (as defined in
the Purchase Agreement) received by the Management Trust (excluding any shares of Restricted Stock
then held pursuant to the Indemnity Escrow Agreement) during any twelve-month period ending on an
Anniversary Date.
(ii) The number of Shares that may be sold by the Management Trust will be increased (subject
to any federal or state securities laws) if the Insider Shareholders (defined as Xxxxxxx X. Xxxxxx,
Xxxxxx X. Xxxxxx and Xxxxx X. Xxxxxx) sell, a weighted average based on holdings of each such
Insider Shareholder on the date hereof or such Anniversary Date as appropriate, during the
applicable twelve-month period ending on an Anniversary Date more than 25% of the Company shares
(excluding shares acquired pursuant to any Company incentive compensation program) that they own as
of the date hereof or the immediately preceding Anniversary Date, as applicable (the “Threshold
Insider Sale Amount”). If sales by the Insider Shareholders during any twelve-month period
ending on an Anniversary Date exceed the Threshold Insider Sale Amount, then the Management Trust
may sell, during the next applicable twelve-month period ending on the subsequent Anniversary Date
only, a number of additional Shares not to exceed the absolute percentage of total shares sold by
the Insider Shareholders in excess of 25%. Any increase in the number of Shares eligible for sale
by the Management Trust pursuant to this subsection shall not increase the number of Shares subject
to the Put Obligation. If the Management Trust elects to sell Shares that become transferrable
pursuant to this subsection, the Management Trust must give the Company ten Business Days’ notice,
and the Company may elect to redeem such Shares within five Business Days at the then market price.
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(iii) Notwithstanding anything to the contrary in this Agreement, Section 3(a)(i) of this
Agreement shall not be applicable to any Shares held by a Management Trust that were eligible to be
sold under Section 3(a)(i) during the twelve-month period ending on any prior Anniversary Date but
were not sold by such Management Trust.
(b) Vesting.
(i) If at any time after the second Anniversary Date, shares of Common Stock reach or exceed
at closing a price of $45.00 per share (as adjusted for any stock splits, stock dividends or
recapitalizations following the date hereof) for thirty (30) consecutive trading days, all Shares
shall fully vest with such holder and all transfer restrictions imposed by this Agreement and all
rights under Section 2(a) shall terminate.
(ii) All transfer restrictions imposed by this Agreement on all Shares of the Management Trust
shall terminate and all Shares and all rights under Section 2(a) of the Management Trust shall
fully vest (resulting, without limitation, in the Management Trust having the right to Put, and the
associated Put Obligation covering up to, 100% of the Put Eligible Shares received by the
Management Trust pursuant to the Purchase Agreement less the number of Ineligible Shares) upon (i)
a Change in Control of the Company or MPA and (ii) the occurrence of one of the following
events within six (6) months from the date of such Change in Control: (A) the Management Owner has
his responsibilities significantly reduced, his employment is terminated without “cause” (as
defined in the Management Owner’s employment agreement), or the Management Owner resigns from the
Company for “good reason” (as defined in the Management Owner’s employment agreement) or (B) the
business of MPA is discontinued by the Person or “group” that is the successor to the Company after
the Change in Control.
4. Miscellaneous.
(a) Notices. All notices, consents, waivers, and other communications under this
Agreement must be in writing and will be deemed to have been duly given when (i) delivered by hand
(with written confirmation of receipt), (ii) sent by telecopier (with written confirmation of
receipt), or (c) when received by the addressee, if sent by a nationally recognized overnight
delivery service (receipt requested), in each case to the appropriate addresses and telecopier
numbers set forth below (or to such other addresses and telecopier numbers as a party may designate
by notice to the other Parties):
If to the Management Trust:
| , | ||||
| Attention: | ||||
| Telephone: | ||||
| Telecopier: | ||||
| Email: |
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with a copy to:
Gallop, Xxxxxxx & Xxxxxx, X.X.
Interco Corporate Tower
000 X. Xxxxxx Xxxx, Xxxxx 0000
Xx. Xxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx and Xxxxxxx X. Xxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
Email: xxxxxxxxx@xxx.xxx and xxxxxxxx@xxx.xxx
Interco Corporate Tower
000 X. Xxxxxx Xxxx, Xxxxx 0000
Xx. Xxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx and Xxxxxxx X. Xxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
Email: xxxxxxxxx@xxx.xxx and xxxxxxxx@xxx.xxx
If to the Parent or the Purchaser, to:
Altisource Portfolio Solutions S.A.
0 xxx Xxxx Xxxxxxxxx
X-0000 Xxxxxxxxxx
Attention: Xxxxxxx X. Xxxxxx and Xxxxx X. Xxxxxx
Telephone: x(000) 0000-0000
Telecopier: x(000) 0000-0000
Email: Xxxxxxx.Xxxxxx@xxxxxxxxxx.xx and Xxxxx.Xxxxxx@xxxxxxxxxx.xx
0 xxx Xxxx Xxxxxxxxx
X-0000 Xxxxxxxxxx
Attention: Xxxxxxx X. Xxxxxx and Xxxxx X. Xxxxxx
Telephone: x(000) 0000-0000
Telecopier: x(000) 0000-0000
Email: Xxxxxxx.Xxxxxx@xxxxxxxxxx.xx and Xxxxx.Xxxxxx@xxxxxxxxxx.xx
with a copy to:
Xxxxx Xxxx LLP
One Atlantic Center, Fourteenth Floor
0000 Xxxx Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000-0000
Attention: Xxxxxxx X. Xxxxxx and Xxxxx X. Xxxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
Email: Xxxx.Xxxxxx@XxxxxXxxx.xxx and Xxx.Xxxxxxx@XxxxxXxxx.xxx
One Atlantic Center, Fourteenth Floor
0000 Xxxx Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000-0000
Attention: Xxxxxxx X. Xxxxxx and Xxxxx X. Xxxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
Email: Xxxx.Xxxxxx@XxxxxXxxx.xxx and Xxx.Xxxxxxx@XxxxxXxxx.xxx
(b) Construction. Within this Agreement, the singular shall include the plural and
the plural shall include the singular, and any gender shall include all other genders, all as the
meaning and the context of this Agreement shall require. The parties have participated jointly in
the negotiation and drafting of this Agreement. In the event an ambiguity or question of intent or
interpretation arises, this Agreement shall be construed as if drafted jointly by the parties and
no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the
authorship of any of the provisions of this Agreement. Any reference to any federal, state, local,
or foreign statute or law shall be deemed also to refer to all rules and regulations promulgated
thereunder and any successor statute or law thereto, unless the context requires otherwise. Unless
otherwise expressly provided, the word “including” does not limit the preceding words or terms.
(c) Successors and Assigns. This Agreement shall be binding upon and inure to the
benefit of the parties and their respective permitted successors and assigns. Neither this
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Agreement, nor any of the rights hereunder or thereunder, may be assigned by any party, nor
may any party delegate any obligations hereunder or thereunder, without the written consent of the
other party hereto or thereto, provided that the Management Trust may, without the consent
of the Company and without affecting the Management Trust’s rights and obligations hereunder,
assign the Management Trust’s same rights and obligations under this Agreement to any of its
respective Affiliates or subsidiaries, and to the grantor of such trust’s heirs, to the extent they
are transferees of Shares. This Agreement shall not be construed as giving any Person, other than
the parties hereto and their permitted successors, heirs and assigns, any legal or equitable right,
remedy or claim under or in respect of this Agreement or any of the provisions herein contained,
this Agreement and all provisions and conditions hereof being intended to be, and being, for the
sole and exclusive benefit of such parties, and their respective permitted successors, heirs and
assigns and for the benefit of no other Person or entity.
(d) Amendment and Waiver. The parties hereto may amend or modify, or may waive any
right or obligation under, this Agreement in any respect, provided that any such amendment,
modification or waiver shall be in writing and executed by each of the Company and the Management
Trust. No waiver of any breach of any provision of this Agreement shall constitute or operate as a
waiver of any other breach of such provision or of any other provision hereof, nor shall any
failure to enforce any provision hereof operate as a waiver of such provision or of any other
provision hereof.
(e) Governing Law; Consent to Jurisdiction. This Agreement is made pursuant to, and
shall be construed and enforced in accordance with, the laws of the State of Delaware applicable to
contracts executed in and to be performed in that State, irrespective of the principal place of
business, residence or domicile of the parties hereto, and without giving effect to otherwise
applicable principles of conflicts of law. Any legal action, suit or proceeding arising out of or
relating to this Agreement (other than as covered by Section 2(e)) shall be instituted, heard and
determined exclusively in any federal court or in any state court located in Wilmington, Delaware,
and each party hereto hereby waives any objection which such party may now or hereafter have to the
laying of the venue of any such action, suit or proceeding, and hereby irrevocably and
unconditionally submits to the jurisdiction of any such court. Any and all service of process and
any other notice in any such action, suit or proceeding shall be effective against any party hereto
if given as provided in Section 4(a) hereof. Nothing herein contained shall be deemed to affect the
right of any party to serve process in any other manner permitted by applicable law.
(f) Section Headings and Defined Terms. The section headings contained herein are for
reference purposes only and shall not in any way affect the meaning and interpretation of any of
the provisions of this Agreement. Except as otherwise indicated, all agreements defined herein
refer to the same as from time to time amended or supplemented or the terms thereof waived or
modified in accordance herewith and therewith.
(g) Severability. If any term or other provision of this Agreement is invalid,
illegal or incapable of being enforced by any rule of law or public policy, all other conditions
and provisions of this Agreement shall nevertheless remain in full force and effect so long as the
economic or legal substance of the transactions contemplated hereby is not affected in any manner
materially adverse to any party. Upon such determination that any term or other
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provision is invalid, illegal or incapable of being enforced, the parties hereto shall
negotiate in good faith to modify this Agreement so as to effect the original intent of the parties
as closely as possible in a mutually acceptable manner in order that the transactions contemplated
hereby be consummated as originally contemplated to the fullest extent possible.
(h) Counterparts. This Agreement and the other documents required to consummate the
transactions contemplated herein may be executed in one or more counterparts, each of which shall
be deemed an original (including facsimile and PDF signatures), and all of which together shall be
deemed to be one and the same instrument. The parties hereto may deliver this Agreement and the
other documents required to consummate the transactions contemplated herein by telecopier
machine/facsimile or via e-mail and each party shall be permitted to rely upon the signatures so
transmitted to the same extent and effect as if they were original signatures.
(i) Entire Agreement. This Agreement supersedes all prior agreements and
understandings (written or oral), between the parties with respect to its subject matter and
constitutes (along with the documents referred to in this Agreement and the Purchase Agreement) a
complete and exclusive statement of the terms of the agreement between the parties with respect to
its subject matter. This Agreement may not be amended except by a written agreement executed by
each of the parties.
[Remainder of the page is intentionally left blank.]
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IN WITNESS WHEREOF, the parties have executed this Agreement or caused their duly authorized
officers to execute this Agreement as of the date first above written.
| ALTISOURCE PORTFOLIO SOLUTIONS S.A. |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| THE “MANAGEMENT TRUST”: |
||||
| REVOCABLE TRUST | ||||
| ________________, Trustee | ||||
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