UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
SCHEDULE
14A INFORMATION
Proxy
Statement Pursuant to Section 14(a) of the
Securities
Exchange Act of 1934
Filed
by the Registrant [X]
Filed
by a Party other than the Registrant [ ]
Check
the appropriate box:
[ ]
Preliminary Proxy Statement
[ ]
Confidential, For Use of the Commission only (as permitted by Rule 14a-6(e)(2))
[X]
Definitive Proxy Statement
[ ]
Definitive Additional Materials
[ ]
Soliciting Material Pursuant to ss.240.14a-12
OCWEN
FINANCIAL CORPORATION
(Name
of Registrant as Specified in its Charter)
N/A
(Name
of Person(s) Filing Proxy Statement, if other than the Registrant)
Payment
of Filing Fee (Check the appropriate box):
[X]
No Fee Required
[ ]
Fee computed on table below per Exchange Act Rules 14a-6(i)(1) and 0-11
1)
|
|
Title
of each class of securities to which transaction applies: N/A
|
|
|
|
2)
|
|
Aggregate
number of securities to which the transaction applies: N/A
|
|
|
|
3)
|
|
Per
unit price or other underlying value of transaction computed pursuant to Exchange Act Rule 0-11 (Set forth the amount on which
the filing fee is calculated and state how it was determined.): N/A
|
|
|
|
4)
|
|
Proposed
maximum aggregate value of transaction: N/A
|
|
|
|
5)
|
|
Total
fee paid:
|
|
|
|
|
[ ]
|
Fee
paid previously with preliminary materials.
|
|
[ ]
|
Check
box if any part of the fee is offset as provided by Exchange Act Rule 0-11(a)(2) and identify the filing for which the offsetting
fee was paid previously. Identify the previous filing by registration statement number, or the Form or Schedule and the date
of its filing.
|
|
|
|
1)
|
|
Amount
Previously Paid: N/A
|
|
|
|
2)
|
|
Form,
Schedule or Registration Statement No.: N/A
|
|
|
|
3)
|
|
Filing
Party: N/A
|
|
|
|
4)
|
|
Date
Filed: N/A
|
OCWEN
FINANCIAL CORPORATION
1661
Worthington Road, Suite 100
West
Palm Beach, Florida 33409
NOTICE
OF SPECIAL MEETING OF SHAREHOLDERS
NOTICE
Notice
is hereby given that a Special Meeting of Shareholders of Ocwen Financial Corporation will be held:
|
Date:
|
Friday,
November 16, 2018
|
|
|
|
|
Time:
|
11:00
a.m., Eastern Standard Time
|
|
|
|
|
Location:
|
Embassy
Suites Hotel
1601
Belvedere Road
West
Palm Beach, Florida 33406
|
PURPOSE
The
Special Meeting of the Shareholders will be held for the following purposes:
|
●
|
To
approve an amendment to our Amended and Restated Articles of Incorporation, as amended, to preserve our net operating losses
for tax purposes; and
|
|
|
|
|
●
|
To
permit the adjournment of the Special Meeting, if necessary, to solicit additional proxies in the event that there are insufficient
shares present, in person or by proxy, voting in favor of the proposal above.
|
PROCEDURES
|
●
|
Our
Board of Directors has fixed September 20, 2018 as the record date for the determination of shareholders entitled to notice
of and to vote at the Special Meeting. Only shareholders of record at the close of business on the record date will be entitled
to vote at the Special Meeting.
|
On or about September 24, 2018, this
proxy statement for our Special Meeting of Shareholders will be available on our website at
www.ocwen.com
in the Financial
Information section under the “Shareholders” tab, and this proxy statement and the proxy card will be mailed to shareholders
on or about September 24, 2018.
By
Order of the Board of Directors,
Michael
J. Stanton
Secretary
September 24, 2018
YOUR
VOTE IS VERY IMPORTANT.
WE
ENCOURAGE YOU TO COMPLETE YOUR PROXY CARD IN ONE OF THE MANNERS DESCRIBED IN THE ACCOMPANYING MATERIALS, EVEN IF YOU PLAN TO ATTEND
THE SPECIAL MEETING. THIS WILL NOT PREVENT YOU FROM VOTING IN PERSON, BUT WILL ENSURE THAT YOUR VOTE IS COUNTED IF YOU ARE UNABLE
TO ATTEND.
OCWEN
FINANCIAL CORPORATION
PROXY
STATEMENT
SPECIAL
MEETING OF SHAREHOLDERS
General
Information
This proxy statement is being furnished to
you in connection with the solicitation of proxies by the Board of Directors (the “Board”) of Ocwen Financial Corporation
(“we” or the “Company”) for use at our Special Meeting of Shareholders (the “Special Meeting”)
and at any postponement or adjournment of this meeting. This proxy statement and proxy card are first being sent or given to shareholders
on or about September 24, 2018. The Special Meeting will be held at the Embassy Suites Hotel located at 1601 Belvedere
Road, West Palm Beach, Florida 33406, on Friday, November 16, 2018, at 11:00 a.m., Eastern Standard Time.
What
You are Being Asked to Vote Upon
The
Special Meeting has been called for the following purposes:
|
●
|
To
approve an amendment to our Amended and Restated Articles of Incorporation, as amended (the “Articles of Incorporation”),
to preserve our net operating losses for tax purposes (the “Protective Amendment”); and
|
|
|
|
|
●
|
To
permit the adjournment of the Special Meeting, if necessary, to solicit additional proxies in the event that there are insufficient
shares present, in person or by proxy, voting in favor of the Protective Amendment (the “Adjournment Proposal”).
|
Recommendation
of the Board of Directors
After
careful consideration, the Board recommends that you vote “FOR” each of the two proposals presented at the Special
Meeting. See Protective Amendment (Proposal 1), beginning on page 12 of this proxy statement and Adjournment Proposal (Proposal
2), beginning on page 17 of this proxy statement.
How
Your Proxy Works
The
Board has appointed Timothy M. Hayes, Executive Vice President and General Counsel, and Michael J. Stanton, Senior Vice President,
Deputy General Counsel and Secretary, as the management proxy holders for the Special Meeting. If you properly complete, sign
and return your proxy card by mail, or submit your proxy by Internet or telephone, and do not revoke it prior to its use, your
shares will be voted in accordance with your instructions. If you do not give contrary instructions, the management proxy holders
will vote all shares represented by valid proxies in accordance with the Board’s recommendations as follows:
|
●
|
“FOR”
the Protective Amendment; and
|
|
|
|
|
●
|
“FOR”
the Adjournment Proposal.
|
Who
May Vote at the Special Meeting
All
shareholders of record or beneficial owners of shares of our common stock who owned our common stock as of the close of business
on September 20, 2018 (the “Record Date”) are entitled to attend and vote at the Special Meeting or any postponement
or adjournment of this meeting. On all matters properly presented at the Special Meeting, each share of our common stock is entitled
to one vote.
If
your shares are registered directly in your name with American Stock Transfer & Trust Company, our stock transfer agent, you
are the “shareholder of record” with respect to those shares. If your shares are held in an account at a brokerage
firm, bank, broker-dealer, or similar organization (collectively, “Broker”), then you are the “beneficial owner
of shares held in street name.” As a beneficial owner, you have the right to instruct your Broker how to vote your shares.
Most individual shareholders are beneficial owners of shares held in street name. At the close of business on the Record Date,
there were 133,912,425 shares of common stock issued and outstanding.
Quorum
and Voting Information
The
presence at the Special Meeting of a majority of the votes of our common stock entitled to vote, represented in person or by proxy,
will constitute a quorum for the transaction of business at the Special Meeting.
You
may vote “FOR”, “AGAINST” or “ABSTAIN” with respect to each of the proposals. The table below
sets forth the necessary votes to pass each proposal.
Proposal
|
|
Necessary
Votes
|
1.
Protective Amendment
|
|
A
Majority of our Outstanding Shares
|
|
|
|
2.
Adjournment Proposal
|
|
A
Majority of the Votes Cast
|
Abstentions
will be counted as present and entitled to vote for purposes of determining whether a quorum is present, but are not considered
to be votes “cast” with respect to any proposal. Proposal 1, the Protective Amendment, requires approval of the majority
of our outstanding shares eligible to be cast; therefore abstentions will have the same effect as a vote against such proposal.
However, Proposal 2, the Adjournment Proposal, requires approval of the majority of the votes cast; therefore abstentions will
not have any effect on the approval of this proposal.
How
to Vote if you are a Shareholder of Record
If
you are a shareholder of record and you have received a printed set of the proxy materials by mail, we encourage you to fill in,
date and sign the enclosed proxy card and mail it promptly in the enclosed envelope to make sure that your shares are represented
at the Special Meeting. Shareholders of record also have the option of voting by using a toll-free telephone number or via the
Internet. Instructions for using these services are included on the proxy card. If you are a shareholder of record and attend
the Special Meeting in person, you may, if you desire, revoke your proxy in accordance with the procedures described in this proxy
statement and vote your shares in person.
How
to Give Voting Instructions if you are a Beneficial Owner of Shares held in Street Name
If
you are a beneficial owner of shares held in street name, you are considered the beneficial owner of the shares, and your shares
may be voted at the Special Meeting only by the Broker that holds your shares. To instruct your Broker how your shares are to
be voted at the Special Meeting, you will need to follow the instructions provided by the Broker that holds your shares. Many
Brokers offer the option of submitting voting instructions over the Internet or by telephone. You are also welcome to attend the
Special Meeting, but you may only vote in person at the Special Meeting if you obtain and present at the Special Meeting a legal
proxy from the Broker that holds your shares, giving you the right to vote the shares in person at the meeting. Please contact
your Broker for further information.
What
Happens if Beneficial Owners Do Not Give Voting Instructions to Their Brokers
If
you hold your shares in street name through a brokerage account and you do not submit instructions to your Broker about how your
shares are to be voted, one of two things can happen depending on the type of proposal. If the proposal involves a “routine”
matter, then the rules of the New York Stock Exchange provide Brokers discretionary authority to vote your shares even if you
do not provide instructions. If, however, the proposal involves a “non-routine” matter, then Brokers are not permitted
to vote your shares without instruction from you.
If
you do not submit voting instructions to your Broker, your Broker may exercise its discretion to vote your shares on Proposal
2, the Adjournment Proposal. However, because the Protective Amendment proposal is “non-routine,” your shares will
constitute broker “non-votes” on the Protective Amendment proposal, which will have the same effect as a vote against
the proposal.
The
table below sets forth whether or not your Broker has discretionary authority to vote your shares if you do not provide instructions
and, if applicable, the effect of Broker “non-votes” on each proposal.
Proposal
|
|
Broker
Discretionary Authority
|
|
Impact
of Broker Non-Vote
|
1.
Protective Amendment
|
|
No
|
|
Vote
Against the Proposal
|
|
|
|
|
|
2.
Adjournment Proposal
|
|
Yes
|
|
No
Effect
|
It
is important that you provide instructions to your Broker if your shares are held by a Broker so that your vote with respect to
the Protective Amendment is counted.
Dissenters’
Rights of Appraisal
No
appraisal rights are available under Florida law, our Articles of Incorporation, or our bylaws if you dissent from or vote against
the proposals at the Special Meeting.
Special
Meeting Admission
For
information on attending the Special Meeting and voting in person, please contact us at
shareholderrelations@ocwen.com
.
If you wish to attend the Special Meeting in person, you must notify us
no less than seven days in advance
at
shareholderrelations@ocwen.com
so that we can make appropriate arrangements to accommodate attendees (i.e., you must notify us at
shareholderrelations@ocwen.com
on or before Friday, November 9, 2018
in order to attend our Special Meeting). You must also present a form of government-issued
personal identification (e.g., driver’s license or passport) and proof of ownership as of the Record Date to be admitted
to the Special Meeting. If you are a beneficial owner of shares held in street name, a recent brokerage statement or a letter
from your Broker are examples of proof of ownership. Only shareholders of record will be permitted to vote at the meeting unless
a beneficial owner obtains and presents at the Special Meeting a legal proxy from the Broker that holds such beneficial owner’s
shares, giving the beneficial owner the right to vote the shares in person at the meeting. No cameras, recording equipment, electronic
devices, large bags, briefcases or packages will be permitted in the meeting. Shareholders attending the Special Meeting will
be expected to abide by rules of conduct established by Ocwen in connection with meetings of our shareholders.
How
to Revoke a Proxy
Your
proxy may be used only at the Special Meeting and any postponement or adjournment of this meeting and may not be used for any
other meeting. You have the power to revoke your proxy at any time before it is exercised by:
|
●
|
filing
written notice of revocation with our Secretary at the following address:
|
|
|
Michael
J. Stanton, Secretary
|
|
|
Ocwen
Financial Corporation
|
|
|
1661
Worthington Road, Suite 100
|
|
|
West
Palm Beach, Florida 33409
|
|
●
|
submitting
a properly executed proxy bearing a later date, or
|
|
●
|
appearing
at the Special Meeting and giving the Secretary notice of your intention to vote in person.
|
SECURITY
OWNERSHIP OF CERTAIN BENEFICIAL OWNERS
AND
RELATED SHAREHOLDER MATTERS
Beneficial
Ownership of Equity Securities
The
following table sets forth certain information regarding the beneficial ownership of our common stock as of the Record Date by:
|
●
|
each
of our directors;
|
|
|
|
|
●
|
each
“named executive officer” as defined in applicable regulations promulgated by the Securities and Exchange Commission;
and
|
|
|
|
|
●
|
all
of our directors and current executive officers as a group.
|
Each
of Ocwen’s directors and named executive officers may be reached through Ocwen Corporate Headquarters
at 1661 Worthington Road, Suite 100, West Palm Beach, Florida 33409.
The
following table also sets forth information with respect to each person known by Ocwen to beneficially own more than five percent
of the outstanding shares of its common stock.
The
table is based upon information supplied to us by directors and executive officers and filings under the Securities Exchange Act
of 1934, as amended. We have based our calculation of the percentage of beneficial ownership on 133,912,425 shares of our common
stock outstanding as of September 20, 2018, unless otherwise noted.
Shares Beneficially Owned
(1)
|
Name and Address of Beneficial Owner:
|
|
Amount of Beneficial Ownership
|
|
|
Percent of Class
|
|
Leon G. Cooperman
(2)
St. Andrew’s Country Club
7118 Melrose Castle Lane
Boca Raton, FL 33428
|
|
|
15,924,184
|
|
|
|
11.9
|
%
|
|
|
|
|
|
|
|
|
|
D. John Devaney
(3)
240 Crandon Boulevard, Suite 167
Key Biscayne, FL 33149
|
|
|
12,951,161
|
|
|
|
9.7
|
%
|
|
|
|
|
|
|
|
|
|
Deer Park Road Management Company, LP
(4)
1195 Bangtail Way
Steamboat Springs, CO 80487
|
|
|
12,691,147
|
|
|
|
9.5
|
%
|
|
|
|
|
|
|
|
|
|
The Vanguard Group
(5)
100 Vanguard Boulevard
Malvern, PA 19355
|
|
|
8,215,331
|
|
|
|
6.1
|
%
|
|
|
|
|
|
|
|
|
|
William C. Erbey
(6)
P.O. Box 25437
Christiansted, VI 00824
|
|
|
7,940,361
|
|
|
|
5.9
|
%
|
|
|
|
|
|
|
|
|
|
BlackRock Inc.
(7)
55 East 52nd Street
New York, NY 10055
|
|
|
6,933,425
|
|
|
|
5.2
|
%
|
|
|
|
|
|
|
|
|
|
Directors and Named Executive Officers:
|
|
|
|
|
|
|
|
|
Scott W. Anderson
(8)
|
|
|
196,147
|
|
|
|
|
*
|
Michael R. Bourque, Jr.
(9)
|
|
|
80,957
|
|
|
|
|
*
|
Alan J. Bowers
(10)
|
|
|
66,943
|
|
|
|
|
*
|
John V. Britti
(11)
|
|
|
211,010
|
|
|
|
|
*
|
Jacques J. Busquet
(10)
|
|
|
64,445
|
|
|
|
|
*
|
Phyllis R. Caldwell
(10)
|
|
|
69,316
|
|
|
|
|
*
|
Ronald M. Faris
(12)
|
|
|
690,488
|
|
|
|
|
*
|
Carol J. Galante
(13)
|
|
|
25,544
|
|
|
|
|
*
|
Robert J. Lipstein
(10)
|
|
|
37,175
|
|
|
|
|
*
|
Robert A. Salcetti
(14)
|
|
|
19,928
|
|
|
|
|
*
|
DeForest B. Soaries, Jr.
(15)
|
|
|
37,175
|
|
|
|
|
*
|
Arthur C. Walker, Jr.
(16)
|
|
|
82,031
|
|
|
|
|
*
|
All Current Directors and Executive Officers as a Group (13 persons)
(17)
|
|
|
992,865
|
|
|
|
0.7
|
%
|
*
|
Less
than 1%
|
|
|
(1)
|
For
purposes of this table, an individual is considered the beneficial owner of shares of common stock if he or she has the right
to acquire within 60 days of September 20, 2018 such common stock and directly or indirectly has or shares voting power or
investment power, as defined in the rules promulgated under the Securities Exchange Act of 1934, as amended. Unless otherwise
indicated, each person has sole voting power and sole investment power with respect to the reported shares. No shares have
been pledged as security by the named executive officers or directors.
|
(2)
|
Based
solely on information contained in a Form 4 filed with the Securities and Exchange Commission on March 2, 2018 reporting securities
beneficially owned on such date. Includes 3,680,644 shares held in the account of Omega Capital Partners, LP, a private investment
entity over which Mr. Cooperman has investment discretion, 2,171,039 shares held in the account of Omega Equity Investors,
LP, a private investment entity over which Mr. Cooperman has investment discretion, 963,980 held in the account of Omega Capital
Investors, LP, a private investment entity over which Mr. Cooperman has investment discretion, 1,750,666 held in the account
of Omega Overseas Partners Ltd, a private investment entity over which Mr. Cooperman has investment discretion, 5,857,855
shares held in the account of Omega Credit Opportunities Master Fund L.P., a private investment entity over which Mr. Cooperman
has investment discretion, and 500,000 shares held in the account of Mrs. Toby Cooperman over which Mr. Cooperman has investment
discretion. Mr. Cooperman disclaims beneficial ownership of all of the foregoing securities. Also includes 1,000,000 shares
held directly by Mr. Cooperman.
|
|
|
(3)
|
Based
solely on information contained in a Schedule 13G/A filed with the Securities and Exchange Commission on February 1, 2018,
reporting securities deemed to be beneficially owned as of December 31, 2017 by D. John Devaney, United Aviation Holdings,
Inc. (“UAHI”), United Capital Markets Holding, Inc. (“UCMHI”), and United Real Estate Ventures, Inc.
UCMHI is the beneficial owner of 5,109,991 shares indirectly through UAHI, a wholly-owned subsidiary of UCMHI. Mr. Devaney
controls UAHI and UCMHI and therefore may be deemed to be the beneficial owner of the 8,133,108 shares owned directly and
indirectly by UAHI and UCMHI. Mr. Devaney may also be deemed to be the beneficial owner of 5,109,991 shares controlled personally
and through retirement accounts.
|
|
|
(4)
|
Based
solely on information contained in a Schedule 13G/A filed with the Securities and Exchange Commission on February 14, 2018,
reporting securities deemed to be beneficially owned as of December 31, 2017, by Deer Park Road Management Company, LP (“Deer
Park”); Deer Park Road Management GP, LLC (“DPRM”); Deer Park Road Corporation (“DPRC”); Michael
David Craig-Scheckman; AgateCreek LLC (“AgateCreek”); and Scott Edward Burg, each of which reports shared voting
and dispositive power of 12,691,147 shares held for the account of STS Master Fund, Ltd. (the “STS Master Fund”),
which is an exempted company organized under the laws of the Cayman Islands. Deer Park serves as investment adviser to the
STS Master Fund and, in such capacity, exercises voting and investment power over the shares held in the account for the STS
Master Fund. DPRM is the general partner of Deer Park. Each of DPRC and AgateCreek is a member of DPRM. Mr. Craig-Scheckman
is the Chief Executive Officer of each of Deer Park and DPRC and the sole owner of DPRC. Mr. Burg is the Chief Investment
Officer of Deer Park and the sole member of AgateCreek.
|
|
|
(5)
|
Based
solely on information contained in a Schedule 13G/A filed with the Securities and Exchange Commission on February 9, 2018,
reporting securities deemed to be beneficially owned as of December 31, 2017, by The Vanguard Group, Inc. Vanguard Fiduciary
Trust Company, a wholly-owned subsidiary of The Vanguard Group, Inc., is the beneficial owner of 114,246 shares as a result
of its serving as investment manager of collective trust accounts. Vanguard Investments Australia, Ltd., a wholly-owned subsidiary
of The Vanguard Group, Inc., is the beneficial owner of 9,760 shares as a result of its serving as investment manager of Australian
investment offerings. The Vanguard Group, Inc., has sole voting power over 119,446 shares, shared voting power over 4,560
shares, sole dispositive power over 8,096,525 shares and shared dispositive power over 118,806 shares.
|
|
|
(6)
|
Based
solely on information contained in a Form 4 filed with the Securities and Exchange Commission on January 23, 2018 reporting
securities deemed beneficially owned as of January 19, 2018 and a Schedule 13G filed with the Securities and Exchange Commission
on February 14, 2018, reporting securities deemed to be beneficially owned as of December 31, 2017, Mr. Erbey’s beneficial
ownership is comprised of the following holdings: 69,805 shares held directly by Mr. Erbey, 5,849,704 shares held by Munus
L.P., 1,020,852 shares held by Tribue Limited Partnership and options to acquire 3,400,000 shares exercisable within 60 days
from December 31, 2017 held directly by Mr. Erbey. However, based on a Form 4 filed by Mr. Erbey on July 16, 2008 reporting
the initial acquisition of 2,400,000 of those options, 2,400,000 of the options held on December 31, 2017 expired on July
13, 2018 and thus they are not included in his holdings in the above table. According to Mr. Erbey’s February 14, 2018
Schedule 13G, the ownership structure of the entities through which Mr. Erbey reported beneficial ownership is as follows:
Munus, L.P. is a Georgia limited partnership (“Munus”), in which Elaine Erbey, Mr. Erbey’s spouse (“Mrs.
Erbey”), has a 0.18% preferred limited partner interest; The Community Foundation of West Georgia, Inc., a Georgia nonprofit
corporation, has a 89.64% preferred limited partner interest with no right to vote or control the assets of Munus; Erbey Holding
Corporation, Inc., a Delaware corporation (“Erbey Holding”), has a 9% common limited partner interest; and Carisma
Trust, a Nevada trust of which Venia, LLC, a Nevada limited liability company (“Venia”) is trustee, has a 1.0%
general partner interest and a 0.18% preferred limited partner interest. Tribue Limited Partnership is a U.S. Virgin Islands
limited partnership (“Tribue”), in which Mr. Erbey has a 0.1% general partner interest, and Salt Pond Holdings,
LLC, a U.S. Virgin Islands limited liability company (“Salt Pond”), has a 90% preferred limited partner interest
and a 9.9% common limited partner interest. The members of Salt Pond are Erbey Holding (19.3%), Christiansted Trust (56.2%),
a U.S. Virgin Islands trust (the “C-Trust”), and Frederiksted Trust (24.5%), a U.S. Virgin Islands trust (the
“F-Trust” and together with Mr. Erbey, Mrs. Erbey, Erbey Holding, Munus, Tribue, Salt Pond, the C-Trust, Carisma
Trust and Venia, the “Reporting Persons”); Erbey Holding is wholly owned by Carisma Trust. The members of Venia
are Mrs. Erbey, John Erbey (Mr. Erbey’s brother) and Andrew Burnett, although Mr. Erbey is given sole investment and
voting control over any securities owned by Venia or Carisma Trust. Mr. Erbey, John Erbey, Mrs. Erbey and Salt Pond are co-trustees
of the C-Trust, with Mr. Erbey and Salt Pond having authority over investment decisions of the C-Trust. Mr. Erbey, John Erbey,
and Salt Pond are co-trustees of the F-Trust.
|
(7)
|
Based
solely on information contained in a Schedule 13G/A filed with the Securities and Exchange Commission on January 23, 20187,
reporting securities deemed to be beneficially owned as of December 31, 2017, by BlackRock, Inc. Pursuant to the Schedule
13G/A, BlackRock, Inc. has sole voting power of 6,672,804 shares and sole dispositive power of 6,933,425 shares and is reporting
beneficial ownership of the shares as the parent holding company or control person of BlackRock Advisors, LLC, BlackRock Investment
Management (UK) Limited, BlackRock Asset Management Canada Limited, BlackRock Investment Management (Australia) Limited, BlackRock
(Netherlands) B.V., BlackRock Fund Advisors, BlackRock Asset Management Ireland Limited, BlackRock Institutional Trust Company,
National Association, BlackRock Financial Management, Inc., BlackRock Asset Management Schweiz AG, and BlackRock Investment
Management, LLC.
|
|
|
(8)
|
Includes
options to acquire 63,954 shares which are exercisable on or within 60 days of September 20, 2018.
|
|
|
(9)
|
Mr.
Bourque resigned effective June 22, 2018.
|
|
|
(10)
|
Does
not include 22,272 restricted stock units granted for Board service for the period from May 23, 2018 through our 2019 Annual
Meeting which will not vest within 60 days of September 20, 2018.
|
|
|
(11)
|
Includes
options to acquire 124,579 shares which are exercisable on or within 60 days of September 20, 2018.
|
|
|
(12)
|
Mr.
Faris retired effective June 30, 2018. Includes 115,582 shares jointly held by Mr. and Mrs. Ronald M. Faris.
|
|
|
(13)
|
Does
not include 37,175 shares credited to Carol J. Galante pursuant to our Deferral Plan for Directors, which are not settleable
until the six-month anniversary of the director’s termination of service. Also does not include 22,272 restricted stock
units granted for Board service for the period from May 23, 2018 through our 2019 Annual Meeting which will not vest within
60 days of September 20, 2018.
|
|
|
(14)
|
Does
not include 57,076 shares credited to Robert A. Salcetti pursuant to our Deferral Plan for Directors, which are not settleable
until the six-month anniversary of the director’s termination of service. Also does not include 22,272 restricted stock
units granted for Board service for the period from May 23, 2018 through our 2019 Annual Meeting which will not vest within
60 days of September 20, 2018.
|
|
|
(15)
|
Does
not include 32,141 shares credited to DeForest B. Soaries, Jr. pursuant to our Deferral Plan for Directors, 12,240 of which
are not settleable until the six-month anniversary of the director’s termination of service and 19,901 of which are
not settleable until January 1, 2023. Also does not include 22,272 restricted stock units granted for Board service for the
period from May 23, 2018 through our 2019 Annual Meeting which will not vest within 60 days of September 20, 2018.
|
|
|
(16)
|
Includes
options to acquire 24,790 shares which are exercisable on or within 60 days of September 20, 2018.
|
|
|
(17)
|
Includes
options to acquire 276,442 shares which are exercisable on or within 60 days of September 20, 2018. The group of current Executive
Officers also includes Catherine M. Dondzila, Timothy M. Hayes, and Peter Moenickheim, and omits Ronald M. Faris and Michael
R. Bourque, Jr. Although Messrs. Faris and Bourque have terminated their employment with the Company, under Securities and
Exchange Commission rules they remain “named executive officers” for the purposes of this proxy statement.
|
Beneficial
Ownership of Equity Securities of Subsidiary
The
following table sets forth certain information regarding the beneficial ownership of preferred stock of our subsidiary, Ocwen
Mortgage Servicing, Inc. (“OMS” and such stock, “OMS Preferred Stock”), as of September 20, 2018 by (i)
each of our directors (ii) each named executive officer and (iii) all of our directors and current executive officers as a group.
Shares Beneficially Owned
|
Directors and Named Executive Officers:
|
|
Title of Class
|
|
|
Amount of Beneficial Ownership
|
|
|
Percent of Class (as of September 20, 2018)
|
|
Scott W. Anderson
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
Michael R. Bourque, Jr.
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
Alan J. Bowers
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
John V. Britti
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
Jacques J. Busquet
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
Phyllis R. Caldwell
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
Ronald M. Faris
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
Carol J. Galante
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
Robert J. Lipstein
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
Robert A. Salcetti
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
DeForest B. Soaries, Jr.
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
Arthur C. Walker, Jr.
|
|
|
Class B Preferred
|
|
|
|
1,000
|
|
|
|
100
|
%
|
All Current Directors and Executive Officers as a Group (13 persons)
|
|
|
Class B Preferred
|
|
|
|
1,000
|
|
|
|
100
|
%
|
All
Current Directors and Executive Officers as a Group (13 persons)
(1)
|
|
|
Class D Preferred
|
|
|
|
1,000
|
|
|
|
100
|
%
|
(1)
Includes
Timothy M. Hayes, who beneficially owns 1,000 shares of Class D Preferred Stock. Does not include Ronald M. Faris and Michael
R. Bourque, Jr., who have terminated their employment with the Company, but under Securities and Exchange Commission rules
remain “named executive officers” for the purposes of this proxy statement.
PROTECTIVE
AMENDMENT TO THE ARTICLES OF INCORPORATION
(Proposal
1)
For
the reasons discussed below under “Background to Proposal 1,” the Board recommends that shareholders adopt the Protective
Amendment. The Protective Amendment is designed to prevent certain transfers of our securities that could result in an “ownership
change” under Section 382 of the Internal Revenue Code of 1986, as amended (the “Code”) and, therefore, materially
inhibit our ability to use certain tax benefits to reduce future income taxes. The Board believes it is in our best interest and
the best interest of our shareholders to adopt the Protective Amendment to help avoid this result. As of June 30, 2018, we had
total net operating loss carryforwards of approximately $400 million in the United States and United States Virgin Islands jurisdictions,
which we estimated to be worth approximately $60 million in potential tax savings under assumptions related to our various relevant
jurisdictional tax rates (which assumptions reflect a significant degree of uncertainty) (the “Tax Benefits”).
The
purpose of the Protective Amendment is to protect the long-term value of our accumulated Tax Benefits by limiting direct or indirect
transfers of our outstanding common stock that could affect the percentage of stock that is treated as being owned by a holder
of more than 4.99% of our common stock. The Protective Amendment includes a mechanism to block the impact of such transfers while
generally allowing purchasers to receive their money back from prohibited purchases. The Board has adopted resolutions declaring
the advisability of amending our Articles of Incorporation as described below and as provided in the accompanying Appendix A,
subject to shareholder approval.
The
Protective Amendment, if approved by shareholders, would become effective upon filing Articles of Amendment to our Articles of
Incorporation with the Secretary of State of the State of Florida, which we would expect to do as soon as practicable after the
Protective Amendment is approved by shareholders. Even if approved by the shareholders, the Board retains the authority to abandon
the Protective Amendment for any reason at any time prior to the effectiveness of the filing of the Protective Amendment with
the Secretary of State of the State of Florida.
Background
to Proposal 1
We
have significant net operating losses that we believe could offset otherwise taxable income in the United States and United States
Virgin Islands.
Our
ability to utilize the Tax Benefits to offset future taxable income may be significantly limited if we experience an “ownership
change” as defined in Section 382 of the Code (“Section 382”). In general, an “ownership change”
will occur when the percentage of our ownership (by value) by one or more “5-percent shareholders” (as defined in
the Code) has increased by more than 50% over the lowest percentage owned by such shareholders at any time during the prior three
years (calculated on a rolling basis). Accordingly, for the purposes of determining whether there has been an “ownership
change,” the change in ownership as a result of purchases by “5-percent shareholders” must be aggregated with
certain changes in ownership that occurred over the three-year period ending on the date of such purchases. We are currently in
the process of evaluating whether we experienced an ownership change as measured under Section 382, and during 2017 identified
risk that an ownership change may have occurred in the United States jurisdiction, which would also result in an ownership change
under Section 382 in the United States Virgin Islands jurisdiction. As part of this evaluation, Ocwen is seeking additional information
pertaining to certain identified 5% shareholders, and their economic ownership for Section 382 purposes.
An
entity that experiences an “ownership change” generally will be subject to an annual limitation on its pre-“ownership
change” tax losses and credit carryforwards equal to the equity value of the corporation immediately before the “ownership
change,” multiplied by the long-term, tax-exempt rate posted monthly by the Internal Revenue Service (the “IRS”)
(subject to certain adjustments). If we were to experience an “ownership change,” it is possible that a significant
portion of the Tax Benefits would expire before we would be able to use them to offset future taxable income.
After
careful consideration, the Board believes the most effective way to continue to preserve the Tax Benefits for long-term shareholder
value is to amend our Articles of Incorporation as described in this proxy statement.
The
Protective Amendment, which is designed to prevent certain transfers of our securities that could result in an “ownership
change,” is described below and its full terms can be found in Appendix A to this proxy statement.
The
Board urges our shareholders to carefully read this Proposal 1 and the full terms of the Protective Amendment.
It
is important to note that the Protective Amendment does not offer a complete solution and an “ownership change” may
occur even if the Protective Amendment is adopted. It is also possible that events constituting an “ownership change”
may occur prior to the adoption of the Protective Amendment. The limitations of this measure are described in more detail below.
Regardless
of whether the Protective Amendment is approved, the Board may, in the future, determine that it is in the best interests of the
Company and our shareholders to take further measures intended to protect the Tax Benefits, such as implementing a so-called “rights
plan” that would dilute the ownership of individuals or entities attempting to increase their ownership stake beyond prescribed
limits.
Notwithstanding
the potential limitations of the Protective Amendment and the availability of additional protective measures, the Board believes
that the Protective Amendment is an important tool to help prevent an “ownership change” that could substantially
reduce or eliminate the significant long-term potential of the Tax Benefits. Accordingly, the Board recommends that shareholders
adopt the Protective Amendment.
Description
of Protective Amendment
The
following description of the Protective Amendment is qualified in its entirety by reference to the full text of the Protective
Amendment, which can be found in the accompanying Appendix A. Please read the Protective Amendment in its entirety as the discussion
below is only a summary.
Prohibited
Transfers.
The Protective Amendment generally will restrict any direct or indirect transfer of our common stock (such
as transfers of our securities that result from the transfer of interests in other entities that own our common stock) if the
effect would be to:
|
●
|
increase
the direct or indirect ownership of our common stock by any Person (as defined below) from less than 4.99% to 4.99% or more
of our common stock; or
|
|
●
|
increase
the percentage of our common stock owned directly or indirectly by a Person owning or deemed to own 4.99% or more of our common
stock.
|
“Person”
means any individual, partnership, joint venture, limited liability company, firm, corporation, unincorporated association or
organization, trust or other “entity” within the meaning of Treasury Regulation § 1.382-3(a)(1), and includes
any successor (by merger or otherwise) of any such entity.
Restricted
transfers include sales to Persons whose resulting percentage ownership (direct or indirect) of our common stock would exceed
the 4.99% thresholds discussed above, or to Persons whose direct or indirect ownership of our common stock would, by attribution,
cause another Person to exceed such threshold. Complicated stock ownership rules prescribed by the Code (and regulations promulgated
thereunder) will apply in determining whether a Person is a 4.99% shareholder under the Protective Amendment. A transfer from
one member of a “public group” (as that term is defined in the regulations under Section 382) to another member of
the same public group that does not result in such transferee being treated as a “5-percent shareholder” does not
increase the percentage interests taken into account for purposes of determining an “ownership change” and, therefore,
such transfers are not restricted. For purposes of determining the existence and identity of, and the amount of our common stock
owned by, any shareholder, we will be entitled to rely on the existence or absence of certain public securities filings as of
any date, subject to our actual knowledge of the ownership of its common stock. The Protective Amendment includes the right to
require a proposed transferee, as a condition to registration of a transfer of our common stock, to provide all information reasonably
requested regarding such Person’s direct and indirect ownership of our common stock.
These
transfer restrictions may result in the delay or refusal of certain requested transfers of our common stock, or prohibit ownership
(thus requiring dispositions) of our common stock due to a change in the relationship between two or more persons or entities
or to a transfer of an interest in an entity other than us that, directly or indirectly, owns our common stock. The transfer restrictions
will also apply to proscribe the creation or transfer of certain “options” (which are broadly defined by Section 382)
with respect to our securities to the extent that, in certain circumstances, the creation, transfer or exercise of the option
would result in a proscribed level of ownership.
Consequences
of Prohibited Transfers.
Upon adoption of the Protective Amendment, any direct or indirect transfer of excess stock (as
defined below) attempted in violation of the Protective Amendment would be void as of the date of the prohibited transfer as to
the purported transferee (or, in the case of an indirect transfer, the direct owner of our common stock would be deemed to have
disposed of, and would be required to dispose of, the excess stock with such disposition being deemed to occur simultaneously
with the transfer), and the purported transferee (or in the case of any indirect transfer, the direct owner) would not be recognized
as the owner of the shares owned in violation of the Protective Amendment for any purpose, including for purposes of voting and
receiving dividends or other distributions in respect of such shares, or in the case of options, receiving our common stock in
respect of their exercise. In this proxy statement, “excess stock” refers to shares of our common stock purportedly
acquired in violation of the Protective Amendment; provided that, with respect to any purported transfer of our common stock (or
series of transfers of which such transfer is a part) that would result in any person or persons becoming a 4.99% shareholder,
only those shares of our common stock that cause the applicable person’s or persons’ ownership to exceed the 4.99%
ownership percentage threshold set forth above would be excess stock.
In
addition to a prohibited transfer being void as of the date it is attempted, upon demand, the purported transferee must transfer
the excess stock to an agent designated by the Board (the “Agent”) along with any dividends or other distributions
paid with respect to such excess stock. The Agent is required to sell such excess stock in an arm’s-length transaction (or
series of transactions) that would not constitute a violation under the Protective Amendment. The net proceeds of the sale, together
with any other distributions with respect to such excess stock received by the Agent, after deduction of all costs incurred by
the Agent, will be transferred first to the purported transferee in an amount, if any, up to the cost (or, in the case of gift,
inheritance or similar transfer, the fair market value of the excess stock on the date of the prohibited transfer) incurred by
the purported transferee to acquire such excess stock, and the balance of the proceeds, if any, will be distributed to a charitable
beneficiary. If the excess stock is sold by the purported transferee, such person will be treated as having sold the excess stock
on behalf of the Agent, and will be required to remit all proceeds to the Agent (except to the extent we grant written permission
to the purported transferee to retain an amount, not to exceed the amount such person otherwise would have been entitled to retain
had the Agent sold such shares).
To
the extent permitted by law, any shareholder who knowingly violates the Protective Amendment will be liable for any and all damages
we suffer as a result of such violation, including damages resulting from any limitation in our ability to use the Tax Benefits
and any professional fees incurred in connection with addressing such violation.
With
respect to any transfer that does not involve a transfer of our securities within the meaning of Florida law but that would cause
a person to violate the Protective Amendment, the following procedures will apply in lieu of those described above: The person
to whom ownership of our securities is attributed, and/or the direct holder of the securities which are the subject of the ownership
attribution, will be deemed to have disposed of (and will be required to dispose of) sufficient securities, simultaneously with
the transfer, to avoid violation of the Protective Amendment, and such securities will be treated as excess stock to be disposed
of through the Agent under the provisions summarized above, with the maximum amount payable to such shareholder that was the direct
holder of such excess stock from the proceeds of sale by the Agent being the fair market value of such excess stock at the time
of the prohibited transfer.
Public
Groups; Modification and Waiver of Transfer Restrictions.
Generally, but not always, shareholders owning less than 5%
of our outstanding common stock are aggregated together as a “public group” for the purposes of Section 382. A transfer
from one member of a “public group” to another member of the same public group that does not result in such transferee
being treated as a “5-percent shareholder” does not increase the percentage interests taken into account for purposes
of determining an “ownership change” and, therefore, such transfers are generally not restricted.
In
addition, the Board will have the discretion to approve a transfer of our common stock that would otherwise violate the transfer
restrictions if it determines that the transfer would not cause an “ownership change” under Section 382. While such
a transfer would not itself cause an “ownership change,” such a transfer could increase the likelihood of, or accelerate
the timing of, a future “ownership change” that could limit our use of the Tax Benefits. Further, the Board may permit
a transfer even if such transfer is likely to cause an “ownership change” if it determines such a transfer would be
in the best interests of the Company and our shareholders, notwithstanding the potential impairment of the Tax Benefits, including,
without limitation, in circumstances involving an acquisition of the Company. In deciding whether to grant a waiver, the Board
may seek the advice of counsel and tax experts with respect to the preservation of the Tax Benefits. In addition, the Board may
request relevant information from the acquirer and/or selling party in order to determine compliance with the Protective Amendment
or the status of the Tax Benefits, including an opinion of counsel selected by the Company (the cost of which will be borne by
the transferor and/or the transferee) that the transfer will not result in a limitation on the use of the Tax Benefits. If the
Board decides to grant a waiver, it may impose conditions on such waiver on the acquirer or selling party.
In
the event of a change in law, the Board will be authorized to modify the applicable allowable percentage ownership interest (currently
less than 4.99%) or modify any of the definitions, terms and conditions of the transfer restrictions or to eliminate the transfer
restrictions, provided that the Board determines, by adopting a resolution, that such action is reasonably necessary or advisable
to preserve the Tax Benefits or that the continuation of these restrictions is no longer reasonably necessary for such purpose,
as applicable. Our shareholders will be notified of any such determination through a filing with the Securities and Exchange Commission
or such other method of notice as our Secretary shall deem appropriate. The Board may establish, modify, amend or rescind bylaws
and procedures for purposes of determining whether any transfer of our common stock would jeopardize our ability to preserve and
use the Tax Benefits.
Implementation
and Expiration of the Protective Amendment
If
our shareholders approve the Protective Amendment, we intend to file it promptly with the Secretary of State of the State of Florida,
whereupon the Protective Amendment will become effective. Subject to possible waivers, we intend to enforce the restrictions in
the Protective Amendment to preserve the future use of the Tax Benefits. We also intend to include a legend reflecting the transfer
restrictions included in the Protective Amendment on certificates representing newly issued or transferred shares and to disclose
such restrictions to our stock transfer agent, to persons holding our common stock in uncertificated form, and to the public generally
via our filings with the Securities and Exchange Commission.
The
Protective Amendment would expire on the earliest of (i) the close of business on the second anniversary of the date on which
the Protective Amendment is filed with the Secretary of State of the State of Florida, (ii) the Board’s determination that
the Protective Amendment is no longer necessary for the preservation of the Tax Benefits because of the repeal of Section 382
or any successor statute, (iii) the beginning of a taxable year to which the Board determines that none of the Tax Benefits may
be carried forward, and (iv) such date as the Board otherwise determines that the Protective Amendment is no longer reasonably
necessary or advisable for the preservation of the Tax Benefits due to a change in the law or otherwise.
Effectiveness
and Enforceability
Although
the Protective Amendment is intended to reduce the likelihood of an “ownership change,” we cannot eliminate the possibility
that an “ownership change” will occur even if the Protective Amendment is adopted given that:
|
●
|
The
Board can permit a transfer to an acquirer that results or contributes to an “ownership change” if it determines
that such transfer is in our best interest and the best interest of our shareholders.
|
|
●
|
A
court could find that part or all of the Protective Amendment is not enforceable, either in general or as to a particular
fact situation. Florida law provides that transfer restrictions with respect to shares issued prior to the adoption of the
restriction are effective against (i) holders of those securities that are parties to the applicable agreement or voted in
favor of the restriction and (ii) purported transferees of such holders if (A) the transfer restriction is noted conspicuously
on the certificate(s) representing such shares or (B) the transfer restriction is contained in an information statement required
by Section 607.0626(2) of the Florida Business Corporations Act; provided that no transfer restriction is enforceable
if the holder or transferee had no actual knowledge of the transfer restrictions. We intend to cause shares of our common
stock issued after the effectiveness of the Protective Amendment to be issued with the relevant transfer restriction conspicuously
noted on the certificate(s) representing such shares, and therefore under Florida law such newly issued shares will be subject
to the transfer restriction. We also intend to disclose such restrictions to persons holding our common stock in uncertificated
form. For the purpose of determining whether a shareholder is subject to the Protective Amendment, we intend to take the position
that all shares issued prior to the effectiveness of the Protective Amendment that are proposed to be transferred were voted
in favor of the Protective Amendment, unless the contrary is established. We may also assert that shareholders have waived
the right to challenge or otherwise cannot challenge the enforceability of the Protective Amendment, unless a shareholder
establishes that it did not vote in favor of the Protective Amendment. Nonetheless, despite these actions, a court still could
find that the Protective Amendment is unenforceable, either in general or as applied to a particular shareholder or fact situation.
|
|
●
|
Despite
the adoption of the Protective Amendment, there is still a risk that certain changes in relationships among shareholders or
other events could cause an “ownership change” under Section 382. Accordingly, we cannot assure that an “ownership
change” will not occur even if the Protective Amendment is made effective.
|
As
a result of these and other factors, the Protective Amendment serves to reduce, but does not eliminate, the risk that we will
undergo an “ownership change” that would limit our ability to utilize the Tax Benefits.
Section
382 Ownership Change Determinations
The
rules of Section 382 are very complex, some of which are beyond the scope of this summary discussion. Some of the factors that
must be considered in determining whether a Section 382 “ownership change” has occurred include the following:
|
●
|
Each
shareholder who owns less than 5% of our common stock is generally (but not always) aggregated with other such shareholders
and treated as a single “5-percent shareholder” that is a “public group” for purposes of Section 382.
Transactions within a “public group” among such shareholders are generally (but not always) excluded from the
Section 382 calculation.
|
|
●
|
There
are several rules regarding the aggregation and segregation of shareholders who are not individually “5-percent shareholders.”
Ownership of stock is generally attributed to its ultimate beneficial owner without regard to ownership by nominees, trusts,
corporations, partnerships or other entities.
|
|
●
|
Acquisitions
by a person that cause the person to become a “5-percent shareholder” may result in a 5% (or more) change in ownership,
regardless of the size of the final purchase(s) that caused the threshold to be exceeded.
|
|
●
|
Certain
constructive ownership rules, which generally attribute ownership of stock owned by estates, trusts, corporations, partnerships
or other entities to the ultimate indirect individual owner thereof, or to related individuals, are applied in determining
the level of stock ownership of a particular shareholder. Special rules can result in the treatment of options (including
warrants) or other similar interests as having been exercised if such treatment would result in an “ownership change.”
|
|
●
|
A
redemption or buyback of our common stock by us would increase the ownership of any “5-percent shareholder” (including
groups of shareholders who are not individually 5-percent shareholders) and subject to certain exceptions can contribute to
an “ownership change.” In addition, it is possible that a redemption or buyback of shares could cause a holder
of less than 5% to become a “5-percent shareholder,” which may result in a 5% (or more) change in ownership.
|
OUR
BOARD OF DIRECTORS UNANIMOUSLY RECOMMENDS
THAT
YOU VOTE “FOR”
THE
PROTECTIVE AMENDMENT TO THE ARTICLES OF INCORPORATION
ADJOURNMENT
PROPOSAL
(Proposal
2)
Approval
of Proposal 2 would permit the adjournment of the Special Meeting, if necessary, for the purpose of soliciting additional proxies,
if there are not sufficient votes at the time of the Special Meeting to approve the Protective Amendment.
If
Proposal 2 is approved, we may adjourn the meeting to solicit additional proxies. We do not anticipate that we will adjourn or
postpone the Special Meeting except for this purpose, unless we are advised by counsel that such adjournment or postponement is
necessary under applicable law. Any adjournment or postponement of the Special Meeting for the purpose of soliciting additional
proxies will allow our shareholders who have already submitted their proxies to revoke them prior to the Special Meeting, as adjourned
or postponed.
OUR
BOARD OF DIRECTORS UNANIMOUSLY RECOMMENDS
THAT
YOU VOTE “FOR” THE ADJOURNMENT PROPOSAL
CERTAIN
CONSIDERATIONS RELATED TO THE PROTECTIVE AMENDMENT
The
Board believes that attempting to protect our Tax Benefits as described above under “Background to Proposal 1” is
in our best interest and the best interest of our shareholders. However, we cannot eliminate the possibility that an “ownership
change” will occur even if the Protective Amendment is adopted. Please consider the items discussed below in voting on Proposal
1.
Risk
of IRS and/or BIR Challenge
Neither
the U.S. Internal Revenue Service (“IRS”) nor the Virgin Islands Bureau of Internal Revenue (“BIR”) has
audited or otherwise validated the amount of Tax Benefits. The IRS and/or the BIR could challenge the amount of Tax Benefits,
which could limit our ability to utilize the Tax Benefits to reduce our future income tax liability. In addition, the complexity
of Section 382 of the Code and the limited knowledge any public company has about the ownership of its publicly traded stock make
it difficult to determine whether an “ownership change” has occurred. Therefore, we cannot assure you that neither
the IRS nor the NIR will claim that we have experienced an “ownership change” and attempt to reduce or eliminate the
benefit of the Tax Benefits even if the Protective Amendment is in place.
Continued
Risk of Ownership Change
Although
the Protective Amendment is intended to reduce the likelihood of an “ownership change,” we cannot provide assurance
that it would prevent all transfers of our common stock that could result in an “ownership change.” In particular,
absent a court determination, we cannot provide assurance that the Protective Amendment’s restrictions on acquisition of
our common stock will be enforceable against all of our shareholders, and they may be subject to legal challenge, as discussed
above under Proposal 1 and below under “Effect of the Protective Amendment if you vote against it.”
Potential
Effects on Liquidity
The
Protective Amendment will restrict a shareholder’s ability to acquire, directly or indirectly, additional shares of our
common stock in excess of the specified limitations. Furthermore, a shareholder’s ability to dispose of our common stock
may be limited by reducing the number of potential acquirers for such common stock. In addition, a shareholder’s ownership
of our common stock may become subject to the restrictions of the Protective Amendment upon actions taken by persons related to,
or affiliated with, such shareholder. Shareholders are advised to monitor carefully their ownership of our common stock and consult
with their own legal advisors and/or the Company to determine whether their ownership of our common stock approaches the restricted
levels.
Potential
Impact on Value
If
the Protective Amendment is adopted, the Board intends to disclose the transfer restrictions in the Protective Amendment to persons
holding our common stock in uncertificated form, disclose such restrictions to the public generally and include a legend reflecting
such restrictions on certificates representing newly issued or transferred shares. We cannot offer any assurances as to how potential
buyers of our common stock will respond to these restrictions. Persons who might otherwise purchase shares may be deterred by
the knowledge that their ownership stake will (absent a waiver) be capped at 4.99%. In addition, certain institutional holders
or others may not be comfortable holding stock with restrictive legends. Consequently, we may reduce the pool of interested buyers
for our common stock, which could have a depressive effect on our stock price.
Anti-Takeover
Effect
The
Board has proposed the Protective Amendment in order to preserve the long-term value of the Tax Benefits and the Protective Amendment
is not primarily intended to protect against potential corporate takeovers. Nonetheless, the Protective Amendment, if approved
by shareholders, could have an anti-takeover effect because, among other things, it will restrict the ability of a person, entity
or group to accumulate 4.99% or more of our common stock. As discussed above, because the Board may, but is not required to, waive
the restrictions under the Protective Amendment as to a potential acquirer, the overall effect of the Protective Amendment, if
approved by our shareholders, may be to render more difficult, or discourage, a merger, tender offer, proxy contest or assumption
of control by a substantial holder of our securities.
Effect
of the Protective Amendment if you vote for it
Regardless
of whether you own more than 4.99% of our outstanding common stock or less than 4.99%, if the Protective Amendment is approved,
you will be able to transfer shares of our common stock only if the transfer does not increase the percentage of stock ownership
of a holder of 4.99% or more of our common stock or create a new holder of 4.99% or more of our common stock. You will also be
able to transfer your shares of our common stock through open-market sales to a “public group” as discussed above
under Proposal 1.
If
you already own more than 4.99% of our common stock, you will not be able to acquire additional shares. If you own less than 4.99%
of our common stock, you may acquire additional shares so long as after such acquisition, you would continue to own less than
4.99% of our common stock.
All
of the above restrictions are subject to waiver at the discretion of the Board, as described above under Proposal 1.
Effect
of the Protective Amendment if you vote against it
Florida
law provides that transfer restrictions with respect to shares issued prior to the adoption of the restriction are effective against
(i) holders of those securities that are parties to the applicable agreement or voted in favor of the restriction and (ii) purported
successors or transferees of such holders if (A) the transfer restriction is noted conspicuously on the certificate(s) representing
such shares or (B) the transfer restriction is contained in an information statement required by Section 607.0626(2) of the Florida
Business Corporations Act; provided that no transfer restriction is enforceable if the holder or transferee had no actual
knowledge of the transfer restrictions. We intend to cause shares of our common stock issued after the effectiveness of the Protective
Amendment to be issued with the relevant transfer restriction conspicuously noted on the certificate(s) representing such shares,
and therefore, under Florida law, such newly issued shares will be subject to the transfer restriction. We also intend to disclose
such restrictions to persons holding our common stock in uncertificated form. For the purpose of determining whether a shareholder
is subject to the Protective Amendment, we intend to take the position that all shares issued prior to the effectiveness of the
Protective Amendment that are proposed to be transferred were voted in favor of the Protective Amendment, unless the contrary
is established. We may also assert that shareholders have waived the right to challenge or otherwise cannot challenge the enforceability
of the Protective Amendment, unless a shareholder establishes that it did not vote in favor of the Protective Amendment. Nonetheless,
despite these actions, a court still could find that the Protective Amendment is unenforceable, either in general or as applied
to a particular shareholder or fact situation.
SUBMISSION
OF SHAREHOLDER PROPOSALS FOR 2019 ANNUAL MEETING
Requirements
for Proposals to be Considered for Inclusion in Proxy Materials
Any
proposal which a shareholder desires to have considered for inclusion in our proxy materials relating to our 2019 Annual Meeting
of Shareholders must be received by the Secretary of Ocwen at our principal executive offices no later than December 20, 2018
and must comply with the procedures prescribed in Rule 14a-8 under the Securities Exchange Act of 1934, as amended.
Requirements
for Proposals Not Intended for Inclusion in Proxy Materials and for Nomination of Director Candidates
If
a shareholder wants to present a proposal, or nominate a person for election as Director, at the 2019 Annual Meeting, we must
receive written notice of the proposal or nomination no earlier than December 20, 2018 and no later than January 19, 2019, which
notice of the proposal or nomination must meet the requirements set forth in Sections 1.1 and 2.2 of our Bylaws, respectively.
Under the circumstances described in, and upon compliance with, Rule 14a-4(c) under the Securities Exchange Act of 1934, as amended,
management proxies would be allowed to use their discretionary voting authority to vote on any matter with respect to which the
foregoing requirements have been met.
Procedure
for Submitting Proposals and Nomination of Director Candidates
Requests
to have a shareholder proposal considered for inclusion in our 2019 proxy materials and notices of intent to present a proposal
or nomination directly at the 2019 Annual Meeting should be mailed to our Secretary at Ocwen Financial Corporation, 1661 Worthington
Road, Suite 100, West Palm Beach, Florida 33409. Notices should be sent by first class United States mail or by a nationally recognized
courier service. If you use the mail, we recommend that you use certified mail, return receipt requested.
OTHER
MATTERS
Solicitation
Proxies
will be solicited on behalf of the Board by mail or electronic means, and we will pay the solicitation costs. Copies of this proxy
statement will be supplied to Brokers for the purpose of soliciting proxies from beneficial owners. In addition to solicitations
by mail or electronic means, our Directors, officers and employees may solicit proxies personally or by telephone without additional
compensation. In addition, we have engaged D.F. King & Co., Inc. to act as our proxy solicitor and have agreed to pay approximately
$6,000 plus reasonable expenses for such services.
Householding
We
have adopted a procedure called “householding,” which the Securities and Exchange Commission has approved. Under this
procedure, shareholders of record who have the same address and last name and did not receive their proxy materials electronically
will receive only one copy of our proxy materials unless we receive contrary instructions from one or more of such shareholders.
Upon oral or written request, we will deliver promptly a separate copy of the proxy materials to a shareholder at a shared address
to which a single copy of proxy materials was delivered. If you are a shareholder of record at a shared address to which we delivered
a single copy of the proxy materials and you desire to receive a separate copy of the proxy materials for the Special Meeting
or for our future meetings, or if you are a shareholder at a shared address to which we delivered multiple copies of the proxy
materials and you desire to receive one copy in the future, please submit your request to the Householding Department of Broadridge
Financial Solutions, Inc. at 51 Mercedes Way, Edgewood, New York 11717, or at 1-800-542-1061. If you are a beneficial shareholder,
please contact your Broker directly if you have questions, require additional copies of the proxy materials, wish to receive multiple
reports by revoking your consent to householding or wish to request single copies of the proxy materials in the future.
Electronic
Access
This
proxy statement may be viewed online at
www.ocwen.com
in the Financial Information section under the “Shareholders”
tab. If you are a shareholder of record, you can elect to access future proxy statements electronically by following the instructions
provided on the proxy card. If you choose this option, you will receive a notice by mail listing the website locations, and your
choice will remain in effect until you notify us by mail that you wish to resume mail delivery of these documents. If you hold
your common stock through a Broker, refer to the information provided by your Broker for instructions on how to elect this option.
Appendix
A
FORM
OF ARTICLES OF AMENDMENT
TO
AMENDED AND RESTATED ARTICLES OF INCORPORATION
OF
OCWEN FINANCIAL CORPORATION
PURSUANT TO SECTION 607.1006 OF THE
FLORIDA BUSINESS CORPORATION ACT
Ocwen
Financial Corporation, a Florida corporation (the “Company”) adopts the following Articles of Amendment to its Amended
and Restated Articles of Incorporation. These Articles of Amendment to the Amended and Restated Articles of Incorporation add
an Article VI to the Amended and Restated Articles of Incorporation to read in its entirety as follows:
ARTICLE
VI
1.
Definitions
. As used in this Article VI, the following capitalized terms have the following meanings when used herein with
initial capital letters (and any references to any portions of Treas. Reg. § 1.382-2T shall include any successor provisions):
|
(a).
|
“
4.99-percent
Transaction
” means any Transfer described in clause (a) or (b) of Section 2 of this Article VI.
|
|
(b).
|
“
4.99-percent
Shareholder
” means a Person or group of Persons that is a “5-percent shareholder” of the Company pursuant
to Treas. Reg. § 1.382-2T(g), as applied by replacing “5-percent” with “4.99-percent” and “five
percent” with “4.99 percent,” where applicable.
|
|
(c).
|
“
Agent
”
has the meaning set forth in Section 5 of this Article VI
.
|
|
(d).
|
“Board
of Directors
” means the board of directors of the Company.
|
|
(e).
|
“
Code
”
means the United States Internal Revenue Code of 1986, as amended. For the avoidance of doubt, Code also includes “An
Act to provide for reconciliation pursuant to titles II and V of the concurrent resolution on the budget for fiscal year 2018,”
(P.L. 115-97).
|
|
(f).
|
“
Company
Security
” or “
Company Securities
” means (i) any Stock, (ii) shares of preferred stock issued
by the Company (other than preferred stock described in § 1504(a)(4) of the Code), and (iii) warrants, rights, or options
(including options within the meaning of Treas. Reg. § 1.382-2T(h)(4)(v) or Treas. Reg. § 1.382-4(d)(9)) to purchase
securities of the Company.
|
|
(g).
|
“
Effective
Date
” means the initial date of filing of these Articles of Amendment to the Amended and Restated Articles of Incorporation
of the Company with the Secretary of State of the State of Florida.
|
|
(h).
|
“
Excess
Securities
”
has the meaning set forth in Section 4 of this Article VI.
|
|
(i).
|
“
Expiration
Date
” means the earliest of (i) the close of business on the date that is the second anniversary of the Effective
Date, (ii) the repeal of Section 382 of the Code or any successor statute if the Board of Directors determines that this Article
VI is no longer necessary or desirable for the preservation of Tax Benefits, (iii) the close of business on the first day
of a taxable year of the Company as to which the Board of Directors determines that no Tax Benefits may be carried forward
or (iv) such date as the Board of Directors shall fix in accordance with Section 12 of this Article VI.
|
|
(j).
|
“
Percentage
Stock Ownership
” means the percentage Stock Ownership interest of any Person or group (as the context may require)
for purposes of Section 382 of the Code as determined in accordance with Treas. Reg. § 1.382-2(a)(3), Treas. Reg. §
1.382-2T(g), (h), (j) and (k) and Treas. Reg. § 1.382-4, or any successor provisions and other pertinent Internal Revenue
Service guidance.
|
|
(k).
|
“
Person
”
means any individual, partnership, joint venture, limited liability company, firm, corporation, unincorporated association
or organization, trust or other entity or any group of such “Persons” having a formal or informal understanding
among themselves to make a “coordinated acquisition” of shares within the meaning of Treas. Reg. § 1.382-3(a)(1)
or who are otherwise treated as an “entity” within the meaning of Treas. Reg. § 1.382-3(a)(1), and shall
include any successor (by merger or otherwise) of any such entity or group.
|
|
(l).
|
“
Prohibited
Distributions
” means any and all dividends or other distributions paid by the Company with respect to any Excess
Securities received by a Purported Transferee.
|
|
(m).
|
“
Prohibited
Transfer
” means any Transfer or purported Transfer of Company Securities to the extent that such Transfer is prohibited
and/or void under this Article VI.
|
|
(n).
|
“
Public
Group
” has the meaning set forth in Treas. Reg. § 1.382-2T(f)(13).
|
|
(o).
|
“
Purported
Transferee
” has the meaning set forth in Section 4 of this Article VI.
|
|
(p).
|
“
Remedial
Holder
” has the meaning set forth in Section 7 of this Article VI.
|
|
(q).
|
“
Stock
”
means any interest that would be treated as “stock” of the Company pursuant to Treas. Reg. § 1.382-2T(f)(18).
|
|
(r).
|
“
Stock
Ownership
” means any direct or indirect ownership of Stock, including any ownership by virtue of application of
constructive ownership rules, with such direct, indirect and constructive ownership determined under the provisions of Section
382 of the Code and the Treasury Regulations thereunder, including, for the avoidance of doubt, any ownership whereby a Person
owns Stock pursuant to a “coordinated acquisition” treated as a single “entity” as defined in Treas.
Reg. § 1.382-3(a)(1), or such Stock is otherwise aggregated with Stock owned by such Person pursuant to the provisions
of Section 382 of the Code and the Treasury Regulations thereunder.
|
|
(s).
|
“
Tax
Benefits
” means the net operating loss carry forwards, capital loss carry forwards, general business credit carry
forwards, alternative minimum tax credit carry forwards, foreign tax credit carry forwards, disallowed net business interest
expense carry forwards under Section 163(j), any credits under Section 53, and any other item that may reduce or result in
any credit against any income taxes owed by the Company or any of its subsidiaries or refundable credits, including, but not
limited to, any item subject to limitation under Section 382 or Section 383 of the Code and the Treasury Regulations promulgated
thereunder, as well as any loss or deduction attributable to a “net unrealized built-in loss” of the Company or
any direct or indirect subsidiary thereof, within the meaning of Section 382 of the Code and the Treasury Regulations promulgated
thereunder.
|
|
(t).
|
“
Transfer
”
means, any direct or indirect sale, transfer, assignment, conveyance, pledge or other disposition, event or occurrence or
other action taken by a Person, other than the Company, that alters the Percentage Stock Ownership of any Person or group,
including, a transfer by gift or by operation of law. A Transfer also shall include the creation or grant of an option (including
an option within the meaning of Treas. Reg. § 1.382-4(d)). For the avoidance of doubt, a Transfer shall not include the
creation or grant of an option by the Company, nor shall a Transfer include the issuance of Stock by the Company.
|
|
(u).
|
“
Transferee
”
means any Person to whom Company Securities are Transferred.
|
|
(v).
|
“
Treasury
Regulations
” or “
Treas. Reg.
” means the regulations, including temporary regulations or any successor
regulations, promulgated under the Code, as amended from time to time.
|
2.
Transfer and Ownership Restrictions
. In order to preserve the Tax Benefits, from and after the Effective Date of this Article
VI any attempted Transfer of Company Securities prior to the Expiration Date and any attempted Transfer of Company Securities
pursuant to an agreement entered into prior to the Expiration Date shall be prohibited and void
ab initio
to the extent
(and only to the extent) that, as a result of such Transfer (or any series of Transfers of which such Transfer is a part), either
(a) any Person or Persons would become a 4.99-percent Shareholder or (b) the Percentage Stock Ownership in the Company of any
4.99-percent Shareholder would be increased. The prior sentence is not intended to prevent Company Securities from being DTC-eligible
and shall not preclude the settlement of any transaction in Company Securities entered into through the facilities of a national
securities exchange;
provided
,
however
, that the Company Securities and parties involved in such transaction shall
remain subject to the provisions of this Article VI in respect of such transaction.
3.
Exceptions
.
(a)
Notwithstanding anything to the contrary herein, Transfers to a Public Group (including a new Public Group created under Treas.
Reg. § 1.382-2T(j)(3)(i)) shall be permitted.
(b)
The restrictions set forth in Section 2 of this Article VI shall not apply to an attempted Transfer that is a 4.99-percent Transaction
if the transferor or the Transferee obtains the written approval of the Board of Directors or a duly authorized committee thereof.
As a condition to granting its approval pursuant to this Section 3 of this Article VI, the Board of Directors may, in its discretion,
require (at the expense of the transferor and/or Transferee) an opinion of counsel selected by the Board of Directors that the
Transfer shall not result in a limitation on the use of the Tax Benefits as a result of the application of Section 382 of the
Code; provided that the Board of Directors may grant such approval notwithstanding the effect of such approval on the Tax Benefits
if it determines that the approval is in the best interests of the Company. The Board of Directors may grant its approval in whole
or in part with respect to such Transfer and may impose any conditions that it deems reasonable and appropriate in connection
with such approval, including, without limitation, restrictions on the ability of any Transferee to Transfer Stock acquired through
a Transfer. Approvals of the Board of Directors hereunder may be given prospectively or retroactively. The Board of Directors,
to the fullest extent permitted by law, may exercise the authority granted by this Article VI through duly authorized officers
or agents of the Company. Nothing in this Section 3 of this Article VI shall be construed to limit or restrict the Board of Directors
in the exercise of its fiduciary duties under applicable law.
4.
Excess Securities
.
(a)
No employee or agent of the Company shall record any Prohibited Transfer, and the purported transferee of such a Prohibited Transfer
(the “
Purported Transferee
”) shall not be recognized as a shareholder of the Company for any purpose whatsoever
in respect of the Company Securities to the extent such Company Securities are the subject of the Prohibited Transfer (the “
Excess
Securities
”); it being understood that with respect to any Transfer (or series of Transfers of which such Transfer is
a part) that would result in any Person or Persons becoming a 4.99-percent Shareholder, only those Corporation Securities that
cause the applicable Person’s or Persons’ Percentage Stock Ownership to exceed the threshold set forth in the definition
of “4.99-percent Shareholder” shall be Excess Securities. The Purported Transferee shall not be entitled, with respect
to such Excess Securities, to any rights of shareholders of the Company, including, without limitation, the right to vote such
Excess Securities and to receive dividends or distributions, whether liquidating or otherwise, in respect thereof, if any, and
the Excess Securities shall be deemed to remain with the transferor unless and until the Excess Securities are transferred to
the Agent pursuant to Section 5 of this Article VI or until an approval is obtained under Section 3 of this Article VI. After
the Excess Securities have been acquired in a Transfer that is not a Prohibited Transfer, the Company Securities shall cease to
be Excess Securities. For this purpose, any Transfer of Excess Securities not in accordance with the provisions of this Section
4 or Section 5 of this Article VI shall also be a Prohibited Transfer.
(b)
The Company may require as a condition to the registration of the Transfer of any Company Securities or the payment of any distribution
on any Company Securities that the proposed Transferee or payee furnish to the Company all information reasonably requested by
the Company with respect to its direct or indirect ownership interests in such Company Securities. The Company may make such arrangements
or issue such instructions to its stock transfer agent as may be determined by the Board of Directors to be necessary or advisable
to implement this Article VI, including, without limitation, authorizing such transfer agent to require an affidavit from a Purported
Transferee regarding such Person’s actual and constructive ownership of Stock and other evidence that a Transfer will not
be prohibited by this Article VI as a condition to registering any transfer.
5.
Transfer to Agent
. If the Board of Directors determines that a Transfer of Company Securities constitutes a Prohibited
Transfer, then, upon written demand by the Company sent within thirty days of the date on which the Board of Directors determines
that a Transfer constitutes a Prohibited Transfer, the Purported Transferee shall transfer or cause to be transferred any certificate
or other evidence of ownership of the Excess Securities within the Purported Transferee’s possession or control, together
with any Prohibited Distributions, to an agent designated by the Board of Directors (the “
Agent
”). The Agent
shall thereupon sell to a buyer or buyers, which may include the Company, the Excess Securities transferred to it in one or more
arm’s-length transactions (on the public securities market on which such Excess Securities are traded, if possible, or otherwise
privately);
provided
,
however
, that any such sale must not constitute a Prohibited Transfer and
provided
,
further
, that the Agent shall effect such sale or sales in an orderly fashion and shall not be required to effect any such
sale within any specific time frame if, in the Agent’s discretion, such sale or sales would disrupt the market for the Company
Securities or otherwise would adversely affect the value of the Company Securities. If the Purported Transferee has resold the
Excess Securities before receiving the Company’s demand to surrender Excess Securities to the Agent, the Purported Transferee
shall be deemed to have sold the Excess Securities for the Agent, and shall be required to transfer to the Agent any Prohibited
Distributions and proceeds of such sale, except to the extent that the Company grants written permission to the Purported Transferee
to retain a portion of such sale proceeds not exceeding the amount that the Purported Transferee would have received from the
Agent pursuant to Section 6 of this Article VI if the Agent rather than the Purported Transferee had resold the Excess Securities.
6.
Application of Proceeds and Prohibited Distributions
. The Agent shall apply any proceeds of a sale by it of Excess Securities
and, if the Purported Transferee has previously resold the Excess Securities, any amounts received by it from a Purported Transferee,
together, in either case, with any Prohibited Distributions, as follows: (i) first, such amounts shall be paid to the Agent to
the extent necessary to cover its costs and expenses incurred in connection with its duties hereunder; (ii) second, any remaining
amounts shall be paid to the Purported Transferee, up to the amount paid by the Purported Transferee for the Excess Securities
(or the fair market value at the time of the Transfer, in the event the purported Transfer of the Excess Securities was, in whole
or in part, a gift, inheritance or similar Transfer) which amount (or fair market value) shall be determined at the discretion
of the Board of Directors; and (iii) third, any remaining amounts shall be paid to one or more organizations selected by the Board
of Directors which is described under Section 501(c)(3) of the Code (or any comparable successor provision) and contributions
to which are eligible for deduction under each of Sections 170(b)(1)(A), 2055 and 2552 of the Code. The Purported Transferee of
Excess Securities shall have no claim, cause of action or any other recourse whatsoever against any transferor of Excess Securities.
The Purported Transferee’s sole right with respect to such shares shall be limited to the amount payable to the Purported
Transferee pursuant to this Section 6 of this Article VI. In no event shall the proceeds of any sale of Excess Securities pursuant
to this Section 6 of this Article VI inure to the benefit of the Company or the Agent, except to the extent used to cover costs
and expenses incurred by Agent in performing its duties hereunder.
7.
Modification of Remedies for Certain Indirect Transfers
. In the event of any Transfer that does not involve a transfer
of Company Securities within the meaning of Florida law but that would cause a 4.99-percent Shareholder to violate a restriction
on Transfers provided for in this Article VI, the application of Sections 5 and 6 of this Article VI shall be modified as described
in this Section 7 of this Article VI. In such case, no such 4.99-percent Shareholder shall be required to dispose of any interest
that is not a Company Security, but such 4.99-percent Shareholder and/or any Person whose ownership of Company Securities is attributed
to such 4.99-percent Shareholder (such 4.99-percent Shareholder or other Person, a “
Remedial Holder
”) shall
be deemed to have disposed of and shall be required to dispose of sufficient Company Securities (which Company Securities shall
be disposed of in the inverse order in which they were acquired) to cause such 4.99-percent Shareholder, following such disposition,
not to be in violation of this Article VI. Such disposition shall be deemed to occur simultaneously with the Transfer giving rise
to the application of this provision, and such number of Company Securities that are deemed to be disposed of shall be considered
Excess Securities and shall be disposed of through the Agent as provided in Sections 5 and 6 of this Article VI, except that the
maximum aggregate amount payable to a Remedial Holder in connection with such sale shall be the fair market value of such Excess
Securities at the time of the purported Transfer. A Remedial Holder shall not be entitled, with respect to such Excess Securities,
to any rights of shareholders of the Company, including, without limitation, the right to vote such Excess Securities and to receive
dividends or distributions, whether liquidating or otherwise, in respect thereof, if any, following the time of the purported
Transfer. All expenses incurred by the Agent in disposing of such Excess Stock shall be paid out of any amounts due such 4.99-percent
Shareholder or such other Person. The purpose of this Section 7 of this Article VI is to extend the restrictions in Sections 2
and 5 of this Article VI to situations in which there is a 4.99-percent Transaction without a direct Transfer of Company Securities,
and this Section 7 of this Article VI, along with the other provisions of this Article VI, shall be interpreted to produce the
same results, with differences as the context requires, as a direct Transfer of Company Securities.
8.
Legal Proceedings; Prompt Enforcement
. If the Purported Transferee fails to surrender the Excess Securities or the proceeds
of a sale thereof, in either case, with any Prohibited Distributions, to the Agent within thirty days from the date on which the
Company makes a written demand pursuant to Section 5 of this Article VI (whether or not made within the time specified in Section
5 of this Article VI), then the Company may take such actions as it deems appropriate to enforce the provisions hereof, including
the institution of legal proceedings to compel the surrender. Nothing in this Section 8 of this Article VI shall (i) be deemed
inconsistent with any Transfer of the Excess Securities provided in this Article VI being void
ab initio
, (ii) preclude
the Company in its discretion from immediately bringing legal proceedings without a prior demand or (iii) cause any failure of
the Company to act within the time periods set forth in Section 5 of this Article VI to constitute a waiver or loss of any right
of the Company under this Article VI. The Board of Directors may authorize such additional actions as it deems advisable to give
effect to the provisions of this Article VI.
9.
Liability
. To the fullest extent permitted by law, any shareholder subject to the provisions of this Article VI who knowingly
violates the provisions of this Article VI and any Persons controlling, controlled by or under common control with such shareholder
shall be jointly and severally liable to the Company for, and shall indemnify and hold the Company harmless against, any and all
damages suffered as a result of such violation, including but not limited to damages resulting from a reduction in, or elimination
of, the Company’s ability to utilize its Tax Benefits, and attorneys’ and auditors’ fees incurred in connection
with such violation.
10.
Obligation to Provide Information
. As a condition to the registration of the Transfer of any Stock, any Person who is a
beneficial, legal or record holder of Stock, and any proposed Transferee and any Person controlling, controlled by or under common
control with the proposed Transferee, shall provide such information as the Company may request from time to time in order to
determine compliance with this Article VI or the status of the Tax Benefits of the Company.
11.
Legends
. The Board of Directors will require that any certificates issued by the Company evidencing ownership of shares
of Stock that are subject to the restrictions on transfer and ownership contained in this Article VI bear the following legend:
“THE
AMENDED AND RESTATED ARTICLES OF INCORPORATION OF THE COMPANY CONTAIN RESTRICTIONS PROHIBITING THE TRANSFER (AS DEFINED IN THE
AMENDED AND RESTATED ARTICLES OF INCORPORATION) OF STOCK OF THE COMPANY (INCLUDING THE CREATION OR GRANT OF CERTAIN OPTIONS, RIGHTS
AND WARRANTS) WITHOUT THE PRIOR AUTHORIZATION OF THE BOARD OF DIRECTORS OF THE COMPANY (THE “BOARD OF DIRECTORS”)
IF SUCH TRANSFER AFFECTS THE PERCENTAGE OF STOCK OF THE COMPANY (WITHIN THE MEANING OF SECTION 382 OF THE INTERNAL REVENUE CODE
OF 1986, AS AMENDED (THE “CODE”) AND THE TREASURY REGULATIONS PROMULGATED THEREUNDER) THAT IS TREATED AS OWNED BY
A 4.99-PERCENT SHAREHOLDER (AS DEFINED IN THE AMENDED AND RESTATED ARTICLES OF INCORPORATION). IF THE TRANSFER RESTRICTIONS ARE
VIOLATED, THEN THE TRANSFER WILL BE VOID AB INITIO AND THE PURPORTED TRANSFEREE OF THE STOCK WILL BE REQUIRED TO TRANSFER EXCESS
SECURITIES (AS DEFINED IN THE AMENDED AND RESTATED ARTICLES OF INCORPORATION) TO THE COMPANY’S AGENT. IN THE EVENT OF A
TRANSFER WHICH DOES NOT INVOLVE SECURITIES OF THE COMPANY WITHIN THE MEANING OF THE FLORIDA BUSINESS CORPORATION ACT (“SECURITIES”)
BUT WHICH WOULD VIOLATE THE TRANSFER RESTRICTIONS, THE PURPORTED TRANSFEREE (OR THE RECORD OWNER) OF THE SECURITIES THAT VIOLATE
THE TRANSFER RESTRICTIONS WILL BE REQUIRED TO TRANSFER SUFFICIENT SECURITIES PURSUANT TO THE TERMS PROVIDED FOR IN THE AMENDED
AND RESTATED ARTICLES OF INCORPORATION TO CAUSE THE 4.99-PERCENT SHAREHOLDER TO NO LONGER BE IN VIOLATION OF THE TRANSFER RESTRICTIONS.
THE COMPANY WILL FURNISH WITHOUT CHARGE TO THE HOLDER OF RECORD OF THIS CERTIFICATE A COPY OF THE AMENDED AND RESTATED ARTICLES
OF INCORPORATION CONTAINING THE ABOVE-REFERENCED TRANSFER RESTRICTIONS UPON WRITTEN REQUEST TO THE COMPANY AT ITS PRINCIPAL PLACE
OF BUSINESS.”
The
Board of Directors may also require that any certificates issued by the Company evidencing ownership of shares of Stock that are
subject to conditions imposed by the Board of Directors under Section 3 of this Article VI also bear a conspicuous legend referencing
the applicable restrictions.
12.
Authority of Board of Directors
.
(a)
The Board of Directors shall have the power to determine all matters necessary for assessing compliance with this Article VI,
including, without limitation, (1) the identification of 4.99-percent Shareholders, (2) whether a Transfer is a 4.99-percent Transaction
or a Prohibited Transfer, (3) the Percentage Stock Ownership in the Company of any 4.99-percent Shareholder, (4) whether an instrument
constitutes a Company Security, (5) the amount (or fair market value) due to a Purported Transferee pursuant to Section 6 of this
Article VI, and (6) any other matters which the Board of Directors determines to be relevant; and the good faith determination
of the Board of Directors on such matters shall be conclusive and binding for all the purposes of this Article VI. In addition,
the Board of Directors may, to the extent permitted by law, from time to time establish, modify, amend or rescind bylaws, regulations
and procedures of the Company not inconsistent with the provisions of this Article VI for purposes of determining whether any
Transfer of Company Securities would jeopardize or endanger the Company’s ability to preserve and use the Tax Benefits and
for the orderly application, administration and implementation of this Article VI.
(b)
Nothing contained in this Article VI shall limit the authority of the Board of Directors to take such other action to the extent
permitted by law as it deems necessary or advisable to protect the Company and its shareholders in preserving the Tax Benefits.
Without limiting the generality of the foregoing, in the event of a change in law making one or more of the following actions
necessary or desirable, the Board of Directors may, by adopting a written resolution, (1) accelerate the Expiration Date, (2)
modify the ownership interest percentage in the Company or the Persons or groups covered by this Article VI, (3) modify the definitions
of any terms set forth in this Article VI or (4) modify the terms of this Article VI as appropriate, in each case, in order to
prevent an ownership change for purposes of Section 382 of the Code as a result of any changes in applicable Treasury Regulations
or otherwise;
provided, however,
that the Board of Directors shall not cause there to be such acceleration or modification
unless it determines, by adopting a written resolution, that such action is reasonably necessary or advisable to preserve the
Tax Benefits or that the continuation of these restrictions is no longer reasonably necessary for the preservation of the Tax
Benefits. Shareholders of the Company shall be notified of such determination through a filing with the Securities and Exchange
Commission or such other method of notice as the Secretary of the Company shall deem appropriate.
(c)
In the case of an ambiguity in the application of any of the provisions of this Article VI, including any definition used herein,
the Board of Directors shall have the power to determine the application of such provisions with respect to any situation based
on its reasonable belief, understanding or knowledge of the circumstances. In the event this Article VI requires an action by
the Board of Directors but fails to provide specific guidance with respect to such action, the Board of Directors shall have the
power to determine the action to be taken so long as such action is not contrary to the provisions of this Article VI. All such
actions, calculations, interpretations and determinations which are done or made by the Board of Directors in good faith shall
be conclusive and binding on the Company, the Agent, and all other parties for all other purposes of this Article VI. The Board
of Directors may delegate all or any portion of its duties and powers under this Article VI to a committee of the Board of Directors
as it deems necessary or advisable and, to the fullest extent permitted by law, may exercise the authority granted by this Article
VI through duly authorized officers or agents of the Company. Nothing in this Article VI shall be construed to limit or restrict
the Board of Directors in its exercise of its fiduciary duties under applicable law.
13.
Reliance
. To the fullest extent permitted by law, the Company and the members of the Board of Directors shall be fully
protected in relying in good faith upon the information, opinions, reports or statements of the chief executive officer, the chief
financial officer, the chief accounting officer or the corporate controller of the Company and the Company’s legal counsel,
independent auditors, transfer agent, investment bankers or other employees and agents in making the determinations and findings
contemplated by this Article VI. The members of the Board of Directors shall not be responsible for any good faith errors made
in connection therewith. For purposes of determining the existence and identity of, and the amount of any Company Securities owned
by, any shareholder, the Company is entitled to rely on the existence and absence of filings of Schedule 13D or 13G under the
Securities Exchange Act of 1934, as amended (or similar filings), as of any date, subject to its actual knowledge of the ownership
of Company Securities.
14.
Benefits of this Article VI
. Nothing in this Article VI shall be construed to give to any person other than the Company
or the Agent any legal or equitable right, remedy or claim under this Article VI. This Article VI shall be for the sole and exclusive
benefit of the Company and the Agent.
15.
Severability
. The purpose of this Article VI is to facilitate the Company’s ability to maintain or preserve its Tax
Benefits. If any provision of this Article VI or the application of any such provision to any Person or under any circumstance
shall be held invalid, illegal or unenforceable in any respect by a court of competent jurisdiction, such invalidity, illegality
or unenforceability shall not affect any other provision of this Article VI.
16.
Waiver
. With regard to any power, remedy or right provided herein or otherwise available to the Company or the Agent under
this Article VI, (i) no waiver will be effective unless expressly contained in a writing signed by the waiving party and (ii)
no alteration, modification or impairment will be implied by reason of any previous waiver, extension of time, delay or omission
in exercise or other indulgence.
|
|
OCWEN
FINANCIAL CORPORATION
1661
Worthington Road, Suite 100, West Palm Beach, Florida 33409
|
|
|
|
FOR
USE ONLY AT THE SPECIAL MEETING OF SHAREHOLDERS
TO
BE HELD ON NOVEMBER 16, 2018, AND AT ANY POSTPONEMENT OR ADJOURNMENT THEREOF.
|
|
|
|
|
|
|
|
The
shares represented by this proxy, when properly executed, will be voted in the manner directed herein by the undersigned Shareholder(s).
If no direction is made, this proxy will be voted FOR an amendment to our Amended and Restated Articles of Incorporation to
preserve our net operating losses for tax purposes and FOR the adjournment of the Special Meeting, if necessary, to solicit
additional proxies in the event there are not sufficient votes at the time of the Special Meeting, as disclosed in the proxy
statement. If any other matters properly come before the meeting, the persons named in this proxy will vote in their discretion.
|
|
|
|
|
|
|
|
|
|
|
|
|
Important
Notice Regarding the Availability of Proxy Materials for the Special Meeting:
The Notice and Proxy Statement are available
at
www.proxyvote.com
.
|
|
|
|
|
|
|
|
|
|
|
|
OCWEN
FINANCIAL CORPORATION
Special
Meeting of Shareholders
November
16, 2018 11:00 AM
This
proxy is solicited by the Board of Directors
|
|
|
|
|
|
|
|
|
|
|
|
|
The
undersigned hereby appoints Timothy M. Hayes and Michael J. Stanton, or either of them, as proxy, with full powers of substitution,
and hereby authorizes them to represent and vote, as designated on the reverse side, all the shares of Common Stock of Ocwen
Financial Corporation (the “Company”) held of record by the undersigned on Thursday, September 20, 2018, at the
Special Meeting of Shareholders to be held at the Embassy Suites Hotel located at 1601 Belvedere Road, West Palm Beach, Florida
33406 on Friday, November 16, 2018, at 11:00 a.m., Eastern Time and at any postponement or adjournment thereof.
|
|
|
|
|
|
|
|
|
|
Shares
of Common Stock of the Company will be voted as specified. If you execute and return this proxy without specific voting instructions,
this proxy will be voted FOR an amendment to our Amended and Restated Articles of Incorporation to preserve our net operating
losses for tax purposes and FOR the adjournment of the Special Meeting, if necessary, to solicit additional proxies in the
event there are not sufficient votes at the time of the Special Meeting, as disclosed in the proxy statement. You may revoke
this proxy at any time prior to the time it is voted at the Special Meeting.
|
|
|
|
|
|
|
|
|
|
The
undersigned hereby acknowledges receipt of the Notice of Special Meeting of Shareholders of Ocwen Financial Corporation to
be held on November 16, 2018, or any postponement or adjournment thereof, and a Proxy Statement for the Special Meeting prior
to the signing of this proxy.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Continued
and to be signed on reverse side
|
|
|
|
|
|
|
|
|
|
|
Ocwen Financial (NYSE:OCN)
Historical Stock Chart
From Aug 2024 to Sep 2024
Ocwen Financial (NYSE:OCN)
Historical Stock Chart
From Sep 2023 to Sep 2024