UNITED STATES
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||
SECURITIES AND EXCHANGE COMMISSION
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Washington, D.C. 20549
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SCHEDULE 13D/A
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Under the Securities Exchange Act of 1934
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(Amendment No. 7)*
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OCWEN FINANCIAL CORPORATION
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(Name of Issuer)
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||
Common Stock
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||
(Title of Class of Securities)
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||
675746 30 9
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(CUSIP Number)
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||
William C. Erbey
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P.O. Box 25437
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||
Christiansted, United States
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Virgin Islands 00824
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(340) 692-1055
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||
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
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May 18, 2015
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||
(Date of Event Which Requires Filing of this Statement)
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*
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The remainder of this cover page shall be filled out for a reporting person’s initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.
|
1
|
NAMES OF REPORTING PERSONS
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||
|
|
||
|
William C. Erbey
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||
2
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS)
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||
|
|
||
|
(a) T
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||
|
(b) £
|
||
3
|
SEC USE ONLY
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||
|
|
||
4
|
SOURCE OF FUNDS (SEE INSTRUCTIONS)
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||
|
|
||
|
N/A
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||
5
|
CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e)
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||
|
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||
|
£
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||
6
|
CITIZENSHIP OR PLACE OF ORGANIZATION
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||
|
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||
|
U.S.A.
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||
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON
WITH
|
7
|
SOLE VOTING POWER
|
|
|
|
||
|
0
|
||
8
|
SHARED VOTING POWER
|
||
|
|
||
|
21,193,1781
|
||
9
|
SOLE DISPOSITIVE POWER
|
||
|
|
||
|
0
|
||
10
|
SHARED DISPOSITIVE POWER
|
||
|
|
||
|
21,193,1781
|
||
11
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
|
||
|
|
||
|
21,193,178
|
||
12
|
CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
(SEE INSTRUCTIONS)
|
||
|
|
||
|
o
|
||
13
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
|
||
|
|
||
|
16.9%*
|
||
14
|
TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)
|
||
|
|
||
|
IN
|
1
|
NAMES OF REPORTING PERSONS
|
||
|
|
||
|
E. Elaine Erbey
|
||
2
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS)
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||
|
|
||
|
(a) T
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||
|
(b) £
|
||
3
|
SEC USE ONLY
|
||
|
|
||
4
|
SOURCE OF FUNDS (SEE INSTRUCTIONS)
|
||
|
|
||
|
N/A
|
||
5
|
CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e)
|
||
|
|
||
|
£
|
||
6
|
CITIZENSHIP OR PLACE OF ORGANIZATION
|
||
|
|
||
|
U.S.A.
|
||
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON
WITH
|
7
|
SOLE VOTING POWER
|
|
|
|
||
|
0
|
||
8
|
SHARED VOTING POWER
|
||
|
|
||
|
12,460,8522
|
||
9
|
SOLE DISPOSITIVE POWER
|
||
|
|
||
|
0
|
||
10
|
SHARED DISPOSITIVE POWER
|
||
|
|
||
|
12,460,8522
|
||
11
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
|
||
|
|
||
|
12,460,852
|
||
12
|
CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
(SEE INSTRUCTIONS)
|
||
|
|
||
|
o
|
||
13
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
|
||
|
|
||
|
9.9%*
|
||
14
|
TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)
|
||
|
|
||
|
IN
|
1
|
NAMES OF REPORTING PERSONS
|
||
|
|
||
|
Caritas Partners, LLC
|
||
2
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS)
|
||
|
|
||
|
(a) T
|
||
|
(b) £
|
||
3
|
SEC USE ONLY
|
||
|
|
||
4
|
SOURCE OF FUNDS (SEE INSTRUCTIONS)
|
||
|
|
||
|
N/A
|
||
5
|
CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e)
|
||
|
|
||
|
£
|
||
6
|
CITIZENSHIP OR PLACE OF ORGANIZATION
|
||
|
|
||
|
Georgia
|
||
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON
WITH
|
7
|
SOLE VOTING POWER
|
|
|
|
||
|
0
|
||
8
|
SHARED VOTING POWER
|
||
|
|
||
|
2,440,000
|
||
9
|
SOLE DISPOSITIVE POWER
|
||
|
|
||
|
0
|
||
10
|
SHARED DISPOSITIVE POWER
|
||
|
|
||
|
2,440,000
|
||
11
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
|
||
|
|
||
|
2,440,000
|
||
12
|
CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
(SEE INSTRUCTIONS)
|
||
|
|
||
|
o
|
||
13
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
|
||
|
|
||
|
1.9%*
|
||
14
|
TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)
|
||
|
|
||
|
CO
|
1
|
NAMES OF REPORTING PERSONS
|
||
|
|
||
|
Caritas Charitable Remainder Trust
|
||
2
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS)
|
||
|
|
||
|
(a) T
|
||
|
(b) £
|
||
3
|
SEC USE ONLY
|
||
|
|
||
4
|
SOURCE OF FUNDS (SEE INSTRUCTIONS)
|
||
|
|
||
|
N/A
|
||
5
|
CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e)
|
||
|
|
||
|
£
|
||
6
|
CITIZENSHIP OR PLACE OF ORGANIZATION
|
||
|
|
||
|
Georgia
|
||
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON
WITH
|
7
|
SOLE VOTING POWER
|
|
|
|
||
|
0
|
||
8
|
SHARED VOTING POWER
|
||
|
|
||
|
2,440,0003
|
||
9
|
SOLE DISPOSITIVE POWER
|
||
|
|
||
|
0
|
||
10
|
SHARED DISPOSITIVE POWER
|
||
|
|
||
|
2,440,0003
|
||
11
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
|
||
|
|
||
|
2,440,000
|
||
12
|
CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
(SEE INSTRUCTIONS)
|
||
|
|
||
|
o
|
||
13
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
|
||
|
|
||
|
1.9%*
|
||
14
|
TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)
|
||
|
|
||
|
OO
|
1
|
NAMES OF REPORTING PERSONS
|
||
|
|
||
|
Salt Pond Holdings, LLC
|
||
2
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS)
|
||
|
|
||
|
(a) T
|
||
|
(b) £
|
||
3
|
SEC USE ONLY
|
||
|
|
||
4
|
SOURCE OF FUNDS (SEE INSTRUCTIONS)
|
||
|
|
||
|
N/A
|
||
5
|
CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e)
|
||
|
|
||
|
£
|
||
6
|
CITIZENSHIP OR PLACE OF ORGANIZATION
|
||
|
|
||
|
Delaware
|
||
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON
WITH
|
7
|
SOLE VOTING POWER
|
|
|
|
||
|
0
|
||
8
|
SHARED VOTING POWER
|
||
|
|
||
|
10,020,852
|
||
9
|
SOLE DISPOSITIVE POWER
|
||
|
|
||
|
0
|
||
10
|
SHARED DISPOSITIVE POWER
|
||
|
|
||
|
10,020,852
|
||
11
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
|
||
|
|
||
|
10,020,852
|
||
12
|
CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
(SEE INSTRUCTIONS)
|
||
|
|
||
|
o
|
||
13
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
|
||
|
|
||
|
8.0%*
|
||
14
|
TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)
|
||
|
|
||
|
CO
|
1
|
NAMES OF REPORTING PERSONS
|
||
|
|
||
|
Erbey Holding Corporation
|
||
2
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS)
|
||
|
|
||
|
(a) T
|
||
|
(b) £
|
||
3
|
SEC USE ONLY
|
||
|
|
||
4
|
SOURCE OF FUNDS (SEE INSTRUCTIONS)
|
||
|
|
||
|
N/A
|
||
5
|
CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e)
|
||
|
|
||
|
£
|
||
6
|
CITIZENSHIP OR PLACE OF ORGANIZATION
|
||
|
|
||
|
Delaware
|
||
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON
WITH
|
7
|
SOLE VOTING POWER
|
|
|
|
||
|
0
|
||
8
|
SHARED VOTING POWER
|
||
|
|
||
|
15,430,5564
|
||
9
|
SOLE DISPOSITIVE POWER
|
||
|
|
||
|
0
|
||
10
|
SHARED DISPOSITIVE POWER
|
||
|
|
||
|
15,430,5564
|
||
11
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
|
||
|
|
||
|
15,430,556
|
||
12
|
CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
(SEE INSTRUCTIONS)
|
||
|
|
||
|
o
|
||
13
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
|
||
|
|
||
|
12.3%*
|
||
14
|
TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)
|
||
|
|
||
|
CO
|
Item 1.
|
Security and Issuer.
|
Item 2.
|
Identity and Background.
|
Item 4.
|
Purpose of Transaction.
|
Item 5.
|
Interests in Securities of the Issuer.
|
Item 6.
|
Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer.
|
●
●
|
Mr. Erbey releases the Issuer and its affiliates with respect to any employment-related claims.
Mr. Erbey agrees that he will not disclose any confidential information of the Issuer or its affiliates.
|
●
|
Mr. Erbey agrees that, for a period of 24 months after the Retirement Date, he will not engage in certain activities that are competitive with the Issuer and its affiliates.
|
●
|
Mr. Erbey agrees that, for a period of 24 months after the Retirement Date, he will not solicit any employee or independent contractor of the Issuer or any of its affiliates.
|
●
|
Mr. Erbey agrees that, for a period of 24 months after the Retirement Date, he will not use trade secrets of the Issuer or any of its affiliates to solicit any customers, vendors, suppliers, licensors, lessors, joint venturers, associates, consultants, agents, or partners of the Issuer or any of its affiliates.
|
●
|
Mr. Erbey agrees that, following the Retirement Date, he will cooperate with the Issuer and its affiliates in connection with certain litigation and audit matters relating to his employment with, or service as a member of the board of directors of the Issuer of, the Issuer or any of its affiliates.
|
●
|
OMS will consider Mr. Erbey for an annual bonus for fiscal 2014, determined by OMS in a manner consistent with its determination of bonuses for 2014 for its other senior executives.
|
●
|
OMS will pay Mr. Erbey a $725,000 cash severance payment (the “Lump Sum Severance Payment”).
|
●
|
OMS will pay Mr. Erbey $475,000 in lieu of certain relocation benefits (the “Lump Sum Relocation Payment”).
|
●
|
Mr. Erbey and his spouse will be entitled to continued medical coverage.
|
●
|
Mr. Erbey’s outstanding Issuer stock options would otherwise become fully vested in connection with Mr. Erbey’s separation and retirement in accordance with the existing terms of the awards. The Retirement Agreement provides that Mr. Erbey’s outstanding Company stock options granted in 2008 and 2012 will continue to be exercisable for the balance of the original 10-year term of the awards.
|
●
|
Mr. Erbey is entitled to a 2015 dividend of $725,000 on his shares of OMS Class A Preferred Stock. Promptly after payment of that dividend, OMS will redeem all of Mr. Erbey’s Class A Preferred Stock for $100.
|
●
|
Mr. Erbey has certain rights to require the Company to file a registration statement on Form S-3 to register the resale of his shares of Issuer common stock (the “Registration Rights”).
|
Item 7.
|
Material to be Filed as Exhibits.
|
Exhibit
Number
|
Description
|
|
Exhibit 1
|
Joint Filing Agreement, dated March 4, 2015, by and among William C. Erbey, E. Elaine Erbey, Erbey Holding Corporation, Caritas Partners LLC, Caritas Charitable Remainder Trust and Salt Pond Holdings, LLC (incorporated by reference to Exhibit 1 of the Reporting Persons’ Schedule 13D/A filed with the SEC on March 4, 2015).
|
|
Exhibit 2
|
Retirement Agreement by and between the Issuer, OMS and Mr. Erbey dated January 16, 2015 (incorporated by reference to Exhibit 10.1 of Ocwen Financial Corporation’s Current Report on Form 8-K filed with the SEC on January 20, 2015 (File No. 001-13219)).
|
|
Exhibit 3
|
Form of Master Agreement for Equity Options, dated May 1, 2015, among Salt Pond Holdings LLC, UBS Securities LLC and UBS AG, London Branch.
|
|
Exhibit 4
|
Form of Confirmation (Call Option), dated May 18, 2015, among Salt Pond Holdings LLC and UBS AG, London Branch (regarding tranche one).
|
|
Exhibit 5
|
Form of Confirmation (Call Option), dated May 18, 2015, among Salt Pond Holdings LLC and UBS AG, London Branch (regarding tranche two).
|
|
Exhibit 6
|
Form of Confirmation (Call Option), dated May 18, 2015, among Salt Pond Holdings LLC and UBS AG, London Branch (regarding tranche three).
|
|
Exhibit 7
|
Form of Confirmation (Call Option), dated May 18, 2015, among Salt Pond Holdings LLC and UBS AG, London Branch (regarding tranche four).
|
|
Exhibit 8
|
Form of Pledge and Security Agreement, dated May 1, 2015, among Salt Pond Holdings LLC, UBS AG, London Branch and UBS AG, Stamford Branch.
|
Dated:
|
May 20, 2015
|
William C. Erbey
|
|||
/s/ William C. Erbey
|
|||
William C. Erbey
|
Dated:
|
May 20, 2015
|
E. Elaine Erbey
|
|||
/s/ E. Elaine Erbey
|
|||
E. Elaine Erbey
|
Dated:
|
May 20, 2015
|
Caritas Partners, LLC
|
|||
By:
|
/s/ William C. Erbey
|
||
Name:
|
William C. Erbey
|
||
Title:
|
Manager
|
Dated:
|
May 20, 2015
|
Caritas Charitable Remainder Trust
|
|||
By:
|
/s/ William C. Erbey
|
||
Name:
|
William C. Erbey
|
||
Title:
|
Co-Trustee
|
Dated:
|
May 20, 2015
|
Caritas Charitable Remainder Trust
|
|||
By:
|
/s/ E. Elaine Erbey
|
||
Name:
|
E. Elaine Erbey
|
||
Title:
|
Co-Trustee
|
Dated:
|
May 20, 2015
|
Salt Pond Holdings, LLC
|
|||
By:
|
/s/ William C. Erbey
|
||
Name:
|
William C. Erbey
|
||
Title:
|
President
|
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M?\$]/"RZDGQ:U32KCXP?$"VU*_UGP_X:T?3KMKB&*&XN9G21A-B0/"^R0`1!
MY7D/D?O]X*\'V'P]\':3H.DP"UTO0[*'3[.$?\LH8D6-%_!5`_"@#^?7P[^U
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M8%V1I)%L$4D2RK)*IEDF;ZZ_X-O/^"<_[2/_``3S^*WQJM?CEX=\/W%IXPLM
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Date:
|
May 1, 2015
|
To:
|
Salt Pond Holdings LLC
PO Box 25437
Christiansted, VI 00824-1437
|
Term
|
Paragraph
|
“Affected Party”
|
10.1
|
“Affected Transaction”
|
10.2
|
“Agent”
|
Preamble
|
“Agreement”
|
Preamble
|
“Change”
|
13.1
|
“Confirmation”
|
2
|
“Counterparty”
|
Preamble
|
“Defaulting Party”
|
9.1
|
“Early Termination Date”
|
9.2
|
“Event of Default”
|
9.1
|
“Non-Affected Party”
|
10.1
|
“Non-Defaulting Party”
|
9.1
|
“Options”
|
Preamble
|
“Original Date”
|
11
|
“Proceedings”
|
15
|
“Representation Letter”
|
Preamble
|
“Security Agreement”
|
Preamble
|
“Settlement Date”
|
5.1
|
“Trade Summary”
|
2
|
“Transacting Branch”
|
Preamble
|
“Unpaid Amounts”
|
9.2
|
“1933 Act”
|
12.4
|
UBS Securities LLC
|
|||
By:
|
/s/ Jennifer Van Nest
|
By:
|
/s/ Samuel Benelbas
|
Name: Jennifer Van Nest
|
Name: Samuel Benelbas
|
||
Title: Executive Director
|
Title: Associate Director, UBS Investment Bank
|
UBS AG, London Branch
|
|||
By:
|
/s/ Gordon S. Kiesling
|
By:
|
/s/ Sergio Breton
|
Name: Gordon S. Kiesling
|
Name: Sergio Breton
|
||
Title: Executive Director and Counsel
|
Title: Director
|
||
Region Americas Legal
|
Region Americas Legal
|
Salt Pond Holdings LLC
|
|
/s/ William C. Erbey
|
May 1, 2015
|
By: William C. Erbey
|
Date
|
Title: President and CEO
|
|
Address: PO Box 25437
|
|
Christiansted, VI 00824
|
UBS AG, LONDON BRANCH
|
|
100 Liverpool Street
|
|
London EC2M 2RH
|
|
Documentation: Tel: +44 207 568 0673
|
|
Fax: +44 207 568 9895/ 9896
|
Date:
|
May 18, 2015
|
To:
|
Salt Pond Holdings LLC (“Party B”)
|
From:
|
UBS AG London Branch (“Party A”)
as Transacting Branch
|
Re:
|
Equity Option Confirmation
UBS Reference Number BKP352STM4260782
|
Master Agreement Date:
|
May 1, 2015
|
Pledge Agreement Date:
|
May 1, 2015
|
Trade Date:
|
May 18, 2015
|
Buyer:
|
Party A
|
Seller:
|
Party B
|
Option Type:
|
Call
|
Option Style:
|
European
|
Underlying Shares:
|
Common Stock of Ocwen Financial Corporation (Ticker: OCN)
|
Number of Underlying Shares:
|
2,500,000
|
Strike Price:
|
USD 12.1562
|
Premium:
|
USD 1,595,500
|
Premium Payment Date:
|
May 21, 2015
|
Exchange:
|
The primary national securities market or automated quotation system on which the Underlying Shares are admitted for trading or quoted.
|
Related Exchange:
|
The primary exchange on which options or futures on the Shares are traded
|
Calculation Agent:
|
Party A, whose calculations shall be binding absent manifest error
|
Clearance System:
|
The Depository Trust Company, or any successor to or transferee of such clearance system.
|
Expiration Date:
|
December 18, 2015, or, if that day is not an Exchange Business Day, the first following day that is an Exchange Business Day.
|
Expiration Time:
|
At the close of trading on the Exchange (without regard to any extended or after-hours trading sessions).
|
Automatic Exercise:
|
Applicable
|
Party A:
|
Telephone: 212-713-3638
Fax: 212-821-2407
|
Party B:
|
Telephone: 340-244-3910
|
Settlement:
|
Physical Settlement shall apply. Seller agrees to deliver to Buyer on the Settlement Date a number of Shares equal to the Number of Underlying Shares plus any amounts that Buyer is obligated to pay as a result of physically settling a derivative contract pursuant to Section 31 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and Buyer agrees to pay to Seller the Strike Price per Share delivered; provided, however, that Party B may elect Cash Settlement (whether Party B is the Seller or Buyer) by giving notice to Party A no later than ten Exchange Business Days prior to the Expiration Date.
|
Reference Price:
|
The closing price per underlying Share as reported by the Exchange at the Valuation Time on the Valuation Date
|
Cash Settlement:
|
If the Transaction is to be Cash Settled, on the Settlement Date, payment shall be made by Seller to Buyer in an amount equal to (i) the Number of Underlying Shares, and (ii) the amount, if any, by which the Reference Price exceeds the Strike Price.
|
Account for payments to Party A:
|
As separately notified.
|
Account for payments to Party B:
|
As separately notified.
|
Security Agreement:
|
The Transaction shall be subject to the Pledge Agreement, pursuant to which Party B is required to deliver the Required Collateral and pursuant to which UBS AG, Stamford Branch acts as Collateral Agent.
|
Required Collateral:
|
2,500,000 Underlying Shares.
|
Dividend Amount Payment:
|
On each Dividend Payment Date, Party B shall pay to Party A an amount in cash equal to the product of (i) either, as the case may be, (a) the amount or value of the Ordinary Dividend per share less the Dividend Cap Amount per share, provided the amount or value is greater than zero, or (b) the Extraordinary Dividend per share, and (ii) the Number of Shares representing Party A’s theoretical hedge position as of the ex-dividend date for such dividend, as determined by the Calculation Agent.
|
Dividend Payment Date:
|
With respect to each Ordinary Dividend or Extraordinary Dividend, the day on which the corresponding dividend is paid by to shareholders of Common Stock.
|
Ordinary Dividend:
|
Any ordinary cash dividend on the shares.
|
Dividend Cap Amount:
|
$0
|
Extraordinary Dividend:
|
Any dividend or distribution on the Shares excluding any Ordinary Dividend, as determined by the Calculation Agent.
|
1. Hedge Transactions:
|
In connection with establishing its hedge with respect to the Options, Party A may execute one or more transactions with its affiliates or third parties.
|
2. Related Compensation:
|
In connection with the Options, Party A has paid a commission to UBS Financial Services.
|
3. Additional Termination Events:
|
The occurrence of either a Hedging Disruption Event or an Excess Borrow Cost Event shall constitute an Event of Default with respect to the portion of the Transaction affected by the Hedging Disruption Event or the Excess Borrow Cost Event, and the amount(s) payable, if any, by one or the other party will be determined by the Calculation Agent as if Counterparty is the Defaulting Party.
WHERE
“Excess Borrow Cost Event” shall mean events or circumstances occurring any time after the Trade Date which are beyond the control of Party A and that have resulted in Party A’s inability to, after using commercially reasonable efforts, maintain a borrow of Shares (up to a number equal to the Number of Shares) on terms that require Party A to pay borrow costs in an amount less than or equal to the Fixed Borrow Cost.
“Excess Borrow Costs” for any day equals the amount per Share by which Party A’s direct or indirect average cost of borrowing the Shares for such day exceeds the Fixed Borrow Cost.
“Hedging Disruption Event” shall mean events or circumstances occurring any time following the Trade Date hereof, which are beyond the control of Party A and that have resulted in Party A’s inability to, after using commercially reasonable efforts, (1) successfully borrow the Shares, (2) acquire, establish, re-establish, substitute, maintain, unwind or dispose of any transaction(s) or asset(s) it deems necessary to hedge the equity price risk of entering into and performing its obligations with respect to the relevant Transaction, or (3) realize, recover or remit the proceeds of any such transaction(s) or asset(s).
“Fixed Borrow Cost” means 75 basis points.
|
4. Role of Agent:
|
UBS Securities LLC shall act as agent (the “Agent”) for Party A and Party B within the meaning of Rule 15a-6 under the Exchange Act of 1934 in connection with this Transaction. Each party agrees and acknowledges that (i) the Agent acts solely as agent on a disclosed basis with respect to the transactions contemplated hereunder, and (ii) the Agent has no obligation, by guaranty, endorsement or otherwise, with respect to the obligations of either Party A or Party B hereunder. In this regard, each of Party A and Party B acknowledges and agrees to look solely to the other for performance hereunder, and not to the Agent. Party A is not a member of the Securities Investor Protection Corporation (SIPC).
|
5. Additional Representations,
Warranties and Agreements:
|
(i) Delivery of Shares (or security entitlements in respect thereof) by Seller pursuant to this Agreement will pass to Buyer title to such Shares (or security entitlements) free and clear of any Liens and any Transfer Restrictions, except for those created pursuant to the Pledge Agreement.
(ii) Seller is not the beneficial owner (as defined in Rule 13d-3 under the Exchange Act, but treating any securities beneficially owned by Seller that are convertible, exchangeable or exercisable into or for equity securities of the Company as if they had been converted, exchanged or exercised) of more than twenty percent of the outstanding Shares of any class or series of equity securities issued by the Company. For purposes of this representation, Seller shall be deemed to have beneficial ownership of any securities beneficially owned by Seller within the meaning of said Rule 13d-3 whether such beneficial ownership is direct or indirect and whether it is based on securities individually owned by Seller or securities owned as a member of a “group” within the meaning of Rule 13d-5(b) under the Exchange Act.
(iii) Seller acknowledges and agrees that Buyer and its affiliates may engage in proprietary trading for their own accounts and the accounts of their affiliates in the Shares or in securities that are convertible, exercisable or exchangeable into or for Shares (including such trading as Buyer or its affiliates deem appropriate in their sole discretion to hedge its or their market risk in any transaction whether between Buyer and Seller or with other third parties) and that such trading may affect the value of the Shares.
(iv) Seller is not an “affiliate” of the issuer of the Shares within the meaning of Rule 144 under the Securities Act.
(v) Seller (1) acquired and made full payment for all shares of Common Stock pledged under the Pledge Agreement (or in respect of which security entitlements are pledged hereunder) at least one year prior to pledging such shares thereunder and owns and, at all times prior to the release of the Collateral pursuant to the terms of the Pledge Agreement, will own the Collateral free and clear of any Liens (other than the Security Interests) or Transfer Restrictions and (2) is not and will not become a party to or otherwise bound by any agreement, other than this Agreement, that (x) restricts in any manner the rights of any present or future owner of the Collateral with respect thereto or (y) provides any person other than Pledgor, the Collateral Agent, the Secured Party or any securities intermediary (including the Securities Intermediary) (but in the case of any such securities intermediary only in respect of Collateral held through it) with control (as defined in Section 8-106 of the UCC) with respect to any Collateral, including without limitation, the Securities Account and the financial assets and other property held therein or credited thereto.
|
Rule 144:
|
Means Rule 144 under the Securities Act.
|
Transfer Restriction:
|
Means, with respect to any share of Shares (or security entitlements in respect thereof) or other item of collateral pledged under the Pledge Agreement, any condition to or restriction on the ability of the holder thereof to sell, assign or otherwise transfer
|
such share of Shares (or security entitlements in respect thereof) or other item of collateral or to enforce the provisions thereof or of any document related thereto whether set forth in such item of Collateral itself or in any document related thereto, including, without limitation, (i) any requirement that any sale, assignment or other transfer or enforcement of such share of Shares (or security entitlements in respect thereof) or other item of collateral be consented to or approved by any Person, including, without limitation, the issuer thereof or any other obligor thereon, (ii) any limitations on the type or status, financial or otherwise, of any buyer, pledgee, assignee or transferee of such share of Shares (or security entitlements in respect thereof) or other item of collateral, (iii) any requirement of the delivery of any certificate, consent, agreement, opinion of counsel, notice or any other document of any Person to the issuer of, any other obligor on or any registrar or transfer agent for, such share of Shares (or security entitlements in respect thereof) or other item of collateral, prior to the sale, pledge, assignment or other transfer or enforcement of such share of Shares (or security entitlements in respect thereof) or other item of collateral and (iv) any registration or qualification requirement or prospectus delivery requirement for such share of Shares (or security entitlements in respect thereof) or other item of collateral pursuant to any federal, state or foreign securities law (including, without limitation, any such requirement arising as a result of Rule 144 or Rule 145 under the Securities Act); provided that the required delivery of any assignment, instruction or entitlement order from the seller, pledgor, assignor or transferor of such share of Shares (or security entitlements in respect thereof) or other item of collateral, together with any evidence of the corporate or other authority of such Person, shall not constitute a “Transfer Restriction”.
|
UBS Securities LLC
|
||||
By:
|
/s/ Jennifer Van Nest
|
By:
|
/s/ Samuel Benelbas
|
|
Name: Jennifer Van Nest
|
Name: Samuel Benelbas
|
|||
Title: Executive Director
|
Title: Associate Director, UBS Investment Bank
|
|||
UBS AG, London Branch
|
||||
By:
|
/s/ Tracy Johnson
|
By:
|
/s/ Lisa Woo
|
|
Name: Tracy Johnson
|
Name: Lisa Woo
|
|||
Title: Director
|
Title: Associate Director
|
Accepted and agreed,
|
|||
SALT POND HOLDINGS LLC
|
|||
By:
|
/s/ William C. Erbey
|
May 19, 2015
|
|
Name: William C. Erbey
|
Date
|
||
Title: President
|
UBS AG, LONDON BRANCH
|
|
100 Liverpool Street
|
|
London EC2M 2RH
|
|
Documentation: Tel: +44 207 568 0673
|
|
Fax: +44 207 568 9895/ 9896
|
Date:
|
May 18, 2015
|
To:
|
Salt Pond Holdings LLC (“Party B”)
|
From:
|
UBS AG London Branch (“Party A”)
as Transacting Branch
|
Re:
|
Equity Option Confirmation
UBS Reference Number BKP352STM4260783
|
Master Agreement Date:
|
May 1, 2015
|
Pledge Agreement Date:
|
May 1, 2015
|
Trade Date:
|
May 18, 2015
|
Buyer:
|
Party A
|
Seller:
|
Party B
|
Option Type:
|
Call
|
Option Style:
|
European
|
Underlying Shares:
|
Common Stock of Ocwen Financial Corporation (Ticker: OCN)
|
Number of Underlying Shares:
|
500,000
|
Strike Price:
|
USD 12.1562
|
Premium:
|
USD 541,950
|
Premium Payment Date:
|
May 21, 2015
|
Exchange:
|
The primary national securities market or automated quotation system on which the Underlying Shares are admitted for trading or quoted.
|
Related Exchange:
|
The primary exchange on which options or futures on the Shares are traded
|
Calculation Agent:
|
Party A, whose calculations shall be binding absent manifest error
|
Clearance System:
|
The Depository Trust Company, or any successor to or transferee of such clearance system.
|
Expiration Date:
|
May 20, 2016, or, if that day is not an Exchange Business Day, the first following day that is an Exchange Business Day.
|
Expiration Time:
|
At the close of trading on the Exchange (without regard to any extended or after-hours trading sessions).
|
Automatic Exercise:
|
Applicable
|
Party A:
|
Telephone: 212-713-3638
Fax: 212-821-2407
|
Party B:
|
Telephone: 340-244-3910
|
Settlement:
|
Physical Settlement shall apply. Seller agrees to deliver to Buyer on the Settlement Date a number of Shares equal to the Number of Underlying Shares plus any amounts that Buyer is obligated to pay as a result of physically settling a derivative contract pursuant to Section 31 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and Buyer agrees to pay to Seller the Strike Price per Share delivered; provided, however, that Party B may elect Cash Settlement (whether Party B is the Seller or Buyer) by giving notice to Party A no later than ten Exchange Business Days prior to the Expiration Date.
|
Reference Price:
|
The closing price per underlying Share as reported by the Exchange at the Valuation Time on the Valuation Date
|
Cash Settlement:
|
If the Transaction is to be Cash Settled, on the Settlement Date, payment shall be made by Seller to Buyer in an amount equal to (i) the Number of Underlying Shares, and (ii) the amount, if any, by which the Reference Price exceeds the Strike Price.
|
Account for payments to Party A:
|
As separately notified.
|
Account for payments to Party B:
|
As separately notified.
|
Security Agreement:
|
The Transaction shall be subject to the Pledge Agreement, pursuant to which Party B is required to deliver the Required Collateral and pursuant to which UBS AG, Stamford Branch acts as Collateral Agent.
|
Required Collateral:
|
500,000 Underlying Shares.
|
Dividend Amount Payment:
|
On each Dividend Payment Date, Party B shall pay to Party A an amount in cash equal to the product of (i) either, as the case may be, (a) the amount or value of the Ordinary Dividend per share less the Dividend Cap Amount per share, provided the amount or value is greater than zero, or (b) the Extraordinary Dividend per share, and (ii) the Number of Shares representing Party A’s theoretical hedge position as of the ex-dividend date for such dividend, as determined by the Calculation Agent.
|
Dividend Payment Date:
|
With respect to each Ordinary Dividend or Extraordinary Dividend, the day on which the corresponding dividend is paid by to shareholders of Common Stock.
|
Ordinary Dividend:
|
Any ordinary cash dividend on the shares.
|
Dividend Cap Amount:
|
$0
|
Extraordinary Dividend:
|
Any dividend or distribution on the Shares excluding any Ordinary Dividend, as determined by the Calculation Agent.
|
1. Hedge Transactions:
|
In connection with establishing its hedge with respect to the Options, Party A may execute one or more transactions with its affiliates or third parties.
|
2. Related Compensation:
|
In connection with the Options, Party A has paid a commission to UBS Financial Services.
|
3. Additional Termination Events:
|
The occurrence of either a Hedging Disruption Event or an Excess Borrow Cost Event shall constitute an Event of Default with respect to the portion of the Transaction affected by the Hedging Disruption Event or the Excess Borrow Cost Event, and the amount(s) payable, if any, by one or the other party will be determined by the Calculation Agent as if Counterparty is the Defaulting Party.
WHERE
“Excess Borrow Cost Event” shall mean events or circumstances occurring any time after the Trade Date which are beyond the control of Party A and that have resulted in Party A’s inability to, after using commercially reasonable efforts, maintain a borrow of Shares (up to a number equal to the Number of Shares) on terms that require Party A to pay borrow costs in an amount less than or equal to the Fixed Borrow Cost.
“Excess Borrow Costs” for any day equals the amount per Share by which Party A’s direct or indirect average cost of borrowing the Shares for such day exceeds the Fixed Borrow Cost.
“Hedging Disruption Event” shall mean events or circumstances occurring any time following the Trade Date hereof, which are beyond the control of Party A and that have resulted in Party A’s inability to, after using commercially reasonable efforts, (1) successfully borrow the Shares, (2) acquire, establish, re-establish, substitute, maintain, unwind or dispose of any transaction(s) or asset(s) it deems necessary to hedge the equity price risk of entering into and performing its obligations with respect to the relevant Transaction, or (3) realize, recover or remit the proceeds of any such transaction(s) or asset(s).
“Fixed Borrow Cost” means 75 basis points.
|
4. Role of Agent:
|
UBS Securities LLC shall act as agent (the “Agent”) for Party A and Party B within the meaning of Rule 15a-6 under the Exchange Act of 1934 in connection with this Transaction. Each party agrees and acknowledges that (i) the Agent acts solely as agent on a disclosed basis with respect to the transactions contemplated hereunder, and (ii) the Agent has no obligation, by guaranty, endorsement or otherwise, with respect to the obligations of either Party A or Party B hereunder. In this regard, each of Party A and Party B acknowledges and agrees to look solely to the other for performance hereunder, and not to the Agent. Party A is not a member of the Securities Investor Protection Corporation (SIPC).
|
5. Additional Representations,
Warranties and Agreements:
|
(i) Delivery of Shares (or security entitlements in respect thereof) by Seller pursuant to this Agreement will pass to Buyer title to such Shares (or security entitlements) free and clear of any Liens and any Transfer Restrictions, except for those created pursuant to the Pledge Agreement.
(ii) Seller is not the beneficial owner (as defined in Rule 13d-3 under the Exchange Act, but treating any securities beneficially owned by Seller that are convertible, exchangeable or exercisable into or for equity securities of the Company as if they had been converted, exchanged or exercised) of more than twenty percent of the outstanding Shares of any class or series of equity securities issued by the Company. For purposes of this representation, Seller shall be deemed to have beneficial ownership of any securities beneficially owned by Seller within the meaning of said Rule 13d-3 whether such beneficial ownership is direct or indirect and whether it is based on securities individually owned by Seller or securities owned as a member of a “group” within the meaning of Rule 13d-5(b) under the Exchange Act.
(iii) Seller acknowledges and agrees that Buyer and its affiliates may engage in proprietary trading for their own accounts and the accounts of their affiliates in the Shares or in securities that are convertible, exercisable or exchangeable into or for Shares (including such trading as Buyer or its affiliates deem appropriate in their sole discretion to hedge its or their market risk in any transaction whether between Buyer and Seller or with other third parties) and that such trading may affect the value of the Shares.
(iv) Seller is not an “affiliate” of the issuer of the Shares within the meaning of Rule 144 under the Securities Act.
(v) Seller (1) acquired and made full payment for all shares of Common Stock pledged under the Pledge Agreement (or in respect of which security entitlements are pledged hereunder) at least one year prior to pledging such shares thereunder and owns and, at all times prior to the release of the Collateral pursuant to the terms of the Pledge Agreement, will own the Collateral free and clear of any Liens (other than the Security Interests) or Transfer Restrictions and (2) is not and will not become a party to or otherwise bound by any agreement, other than this Agreement, that (x) restricts in any manner the rights of any present or future owner of the Collateral with respect thereto or (y) provides any person other than Pledgor, the Collateral Agent, the Secured Party or any securities intermediary (including the Securities Intermediary) (but in the case of any such securities intermediary only in respect of Collateral held through it) with control (as defined in Section 8-106 of the UCC) with respect to any Collateral, including without limitation, the Securities Account and the financial assets and other property held therein or credited thereto.
|
Rule 144:
|
Means Rule 144 under the Securities Act.
|
Transfer Restriction:
|
Means, with respect to any share of Shares (or security entitlements in respect thereof) or other item of collateral pledged under the Pledge Agreement, any condition to or restriction on the ability of the holder thereof to sell, assign or otherwise transfer
|
such share of Shares (or security entitlements in respect thereof) or other item of collateral or to enforce the provisions thereof or of any document related thereto whether set forth in such item of Collateral itself or in any document related thereto, including, without limitation, (i) any requirement that any sale, assignment or other transfer or enforcement of such share of Shares (or security entitlements in respect thereof) or other item of collateral be consented to or approved by any Person, including, without limitation, the issuer thereof or any other obligor thereon, (ii) any limitations on the type or status, financial or otherwise, of any buyer, pledgee, assignee or transferee of such share of Shares (or security entitlements in respect thereof) or other item of collateral, (iii) any requirement of the delivery of any certificate, consent, agreement, opinion of counsel, notice or any other document of any Person to the issuer of, any other obligor on or any registrar or transfer agent for, such share of Shares (or security entitlements in respect thereof) or other item of collateral, prior to the sale, pledge, assignment or other transfer or enforcement of such share of Shares (or security entitlements in respect thereof) or other item of collateral and (iv) any registration or qualification requirement or prospectus delivery requirement for such share of Shares (or security entitlements in respect thereof) or other item of collateral pursuant to any federal, state or foreign securities law (including, without limitation, any such requirement arising as a result of Rule 144 or Rule 145 under the Securities Act); provided that the required delivery of any assignment, instruction or entitlement order from the seller, pledgor, assignor or transferor of such share of Shares (or security entitlements in respect thereof) or other item of collateral, together with any evidence of the corporate or other authority of such Person, shall not constitute a “Transfer Restriction”.
|
UBS Securities LLC
|
||||
By:
|
/s/ Jennifer Van Nest
|
By:
|
/s/ Samuel Benelbas
|
|
Name: Jennifer Van Nest
|
Name: Samuel Benelbas
|
|||
Title: Executive Director
|
Title: Associate Director, UBS Investment Bank
|
|||
UBS AG, London Branch
|
||||
By:
|
/s/ Tracy Johnson
|
By:
|
/s/ Lisa Woo
|
|
Name: Tracy Johnson
|
Name: Lisa Woo
|
|||
Title: Director
|
Title: Associate Director
|
Accepted and agreed,
|
|||
SALT POND HOLDINGS LLC
|
|||
By:
|
/s/ William C. Erbey
|
May 19, 2015
|
|
Name: William C. Erbey
|
Date
|
||
Title: President
|
UBS AG, LONDON BRANCH
|
|
100 Liverpool Street
|
|
London EC2M 2RH
|
|
Documentation: Tel: +44 207 568 0673
|
|
Fax: +44 207 568 9895/ 9896
|
Date:
|
May 18, 2015
|
To:
|
Salt Pond Holdings LLC (“Party B”)
|
From:
|
UBS AG London Branch (“Party A”)
as Transacting Branch
|
Re:
|
Equity Option Confirmation
UBS Reference Number BKP352STM4260784
|
Master Agreement Date:
|
May 1, 2015
|
Pledge Agreement Date:
|
May 1, 2015
|
Trade Date:
|
May 18, 2015
|
Buyer:
|
Party A
|
Seller:
|
Party B
|
Option Type:
|
Call
|
Option Style:
|
European
|
Underlying Shares:
|
Common Stock of Ocwen Financial Corporation (Ticker: OCN)
|
Number of Underlying Shares:
|
500,000
|
Strike Price:
|
USD 13.1692
|
Premium:
|
USD 390,000
|
Premium Payment Date:
|
May 21, 2015
|
Exchange:
|
The primary national securities market or automated quotation system on which the Underlying Shares are admitted for trading or quoted.
|
Related Exchange:
|
The primary exchange on which options or futures on the Shares are traded
|
Calculation Agent:
|
Party A, whose calculations shall be binding absent manifest error
|
Clearance System:
|
The Depository Trust Company, or any successor to or transferee of such clearance system.
|
Expiration Date:
|
May 20, 2016, or, if that day is not an Exchange Business Day, the first following day that is an Exchange Business Day.
|
Expiration Time:
|
At the close of trading on the Exchange (without regard to any extended or after-hours trading sessions).
|
Automatic Exercise:
|
Applicable
|
Party A:
|
Telephone: 212-713-3638
Fax: 212-821-2407
|
Party B:
|
Telephone: 340-244-3910
|
Settlement:
|
Physical Settlement shall apply. Seller agrees to deliver to Buyer on the Settlement Date a number of Shares equal to the Number of Underlying Shares plus any amounts that Buyer is obligated to pay as a result of physically settling a derivative contract pursuant to Section 31 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and Buyer agrees to pay to Seller the Strike Price per Share delivered; provided, however, that Party B may elect Cash Settlement (whether Party B is the Seller or Buyer) by giving notice to Party A no later than ten Exchange Business Days prior to the Expiration Date.
|
Reference Price:
|
The closing price per underlying Share as reported by the Exchange at the Valuation Time on the Valuation Date
|
Cash Settlement:
|
If the Transaction is to be Cash Settled, on the Settlement Date, payment shall be made by Seller to Buyer in an amount equal to (i) the Number of Underlying Shares, and (ii) the amount, if any, by which the Reference Price exceeds the Strike Price.
|
Account for payments to Party A:
|
As separately notified.
|
Account for payments to Party B:
|
As separately notified.
|
Security Agreement:
|
The Transaction shall be subject to the Pledge Agreement, pursuant to which Party B is required to deliver the Required Collateral and pursuant to which UBS AG, Stamford Branch acts as Collateral Agent.
|
Required Collateral:
|
500,000 Underlying Shares.
|
Dividend Amount Payment:
|
On each Dividend Payment Date, Party B shall pay to Party A an amount in cash equal to the product of (i) either, as the case may be, (a) the amount or value of the Ordinary Dividend per share less the Dividend Cap Amount per share, provided the amount or value is greater than zero, or (b) the Extraordinary Dividend per share, and (ii) the Number of Shares representing Party A’s theoretical hedge position as of the ex-dividend date for such dividend, as determined by the Calculation Agent.
|
Dividend Payment Date:
|
With respect to each Ordinary Dividend or Extraordinary Dividend, the day on which the corresponding dividend is paid by to shareholders of Common Stock.
|
Ordinary Dividend:
|
Any ordinary cash dividend on the shares.
|
Dividend Cap Amount:
|
$0
|
Extraordinary Dividend:
|
Any dividend or distribution on the Shares excluding any Ordinary Dividend, as determined by the Calculation Agent.
|
1. Hedge Transactions:
|
In connection with establishing its hedge with respect to the Options, Party A may execute one or more transactions with its affiliates or third parties.
|
2. Related Compensation:
|
In connection with the Options, Party A has paid a commission to UBS Financial Services.
|
3. Additional Termination Events:
|
The occurrence of either a Hedging Disruption Event or an Excess Borrow Cost Event shall constitute an Event of Default with respect to the portion of the Transaction affected by the Hedging Disruption Event or the Excess Borrow Cost Event, and the amount(s) payable, if any, by one or the other party will be determined by the Calculation Agent as if Counterparty is the Defaulting Party.
WHERE
“Excess Borrow Cost Event” shall mean events or circumstances occurring any time after the Trade Date which are beyond the control of Party A and that have resulted in Party A’s inability to, after using commercially reasonable efforts, maintain a borrow of Shares (up to a number equal to the Number of Shares) on terms that require Party A to pay borrow costs in an amount less than or equal to the Fixed Borrow Cost.
“Excess Borrow Costs” for any day equals the amount per Share by which Party A’s direct or indirect average cost of borrowing the Shares for such day exceeds the Fixed Borrow Cost.
“Hedging Disruption Event” shall mean events or circumstances occurring any time following the Trade Date hereof, which are beyond the control of Party A and that have resulted in Party A’s inability to, after using commercially reasonable efforts, (1) successfully borrow the Shares, (2) acquire, establish, re-establish, substitute, maintain, unwind or dispose of any transaction(s) or asset(s) it deems necessary to hedge the equity price risk of entering into and performing its obligations with respect to the relevant Transaction, or (3) realize, recover or remit the proceeds of any such transaction(s) or asset(s).
“Fixed Borrow Cost” means 75 basis points.
|
4. Role of Agent:
|
UBS Securities LLC shall act as agent (the “Agent”) for Party A and Party B within the meaning of Rule 15a-6 under the Exchange Act of 1934 in connection with this Transaction. Each party agrees and acknowledges that (i) the Agent acts solely as agent on a disclosed basis with respect to the transactions contemplated hereunder, and (ii) the Agent has no obligation, by guaranty, endorsement or otherwise, with respect to the obligations of either Party A or Party B hereunder. In this regard, each of Party A and Party B acknowledges and agrees to look solely to the other for performance hereunder, and not to the Agent. Party A is not a member of the Securities Investor Protection Corporation (SIPC).
|
5. Additional Representations,
Warranties and Agreements:
|
(i) Delivery of Shares (or security entitlements in respect thereof) by Seller pursuant to this Agreement will pass to Buyer title to such Shares (or security entitlements) free and clear of any Liens and any Transfer Restrictions, except for those created pursuant to the Pledge Agreement.
(ii) Seller is not the beneficial owner (as defined in Rule 13d-3 under the Exchange Act, but treating any securities beneficially owned by Seller that are convertible, exchangeable or exercisable into or for equity securities of the Company as if they had been converted, exchanged or exercised) of more than twenty percent of the outstanding Shares of any class or series of equity securities issued by the Company. For purposes of this representation, Seller shall be deemed to have beneficial ownership of any securities beneficially owned by Seller within the meaning of said Rule 13d-3 whether such beneficial ownership is direct or indirect and whether it is based on securities individually owned by Seller or securities owned as a member of a “group” within the meaning of Rule 13d-5(b) under the Exchange Act.
(iii) Seller acknowledges and agrees that Buyer and its affiliates may engage in proprietary trading for their own accounts and the accounts of their affiliates in the Shares or in securities that are convertible, exercisable or exchangeable into or for Shares (including such trading as Buyer or its affiliates deem appropriate in their sole discretion to hedge its or their market risk in any transaction whether between Buyer and Seller or with other third parties) and that such trading may affect the value of the Shares.
(iv) Seller is not an “affiliate” of the issuer of the Shares within the meaning of Rule 144 under the Securities Act.
(v) Seller (1) acquired and made full payment for all shares of Common Stock pledged under the Pledge Agreement (or in respect of which security entitlements are pledged hereunder) at least one year prior to pledging such shares thereunder and owns and, at all times prior to the release of the Collateral pursuant to the terms of the Pledge Agreement, will own the Collateral free and clear of any Liens (other than the Security Interests) or Transfer Restrictions and (2) is not and will not become a party to or otherwise bound by any agreement, other than this Agreement, that (x) restricts in any manner the rights of any present or future owner of the Collateral with respect thereto or (y) provides any person other than Pledgor, the Collateral Agent, the Secured Party or any securities intermediary (including the Securities Intermediary) (but in the case of any such securities intermediary only in respect of Collateral held through it) with control (as defined in Section 8-106 of the UCC) with respect to any Collateral, including without limitation, the Securities Account and the financial assets and other property held therein or credited thereto.
|
Rule 144:
|
Means Rule 144 under the Securities Act.
|
Transfer Restriction:
|
Means, with respect to any share of Shares (or security entitlements in respect thereof) or other item of collateral pledged under the Pledge Agreement, any condition to or restriction on the ability of the holder thereof to sell, assign or otherwise transfer
|
such share of Shares (or security entitlements in respect thereof) or other item of collateral or to enforce the provisions thereof or of any document related thereto whether set forth in such item of Collateral itself or in any document related thereto, including, without limitation, (i) any requirement that any sale, assignment or other transfer or enforcement of such share of Shares (or security entitlements in respect thereof) or other item of collateral be consented to or approved by any Person, including, without limitation, the issuer thereof or any other obligor thereon, (ii) any limitations on the type or status, financial or otherwise, of any buyer, pledgee, assignee or transferee of such share of Shares (or security entitlements in respect thereof) or other item of collateral, (iii) any requirement of the delivery of any certificate, consent, agreement, opinion of counsel, notice or any other document of any Person to the issuer of, any other obligor on or any registrar or transfer agent for, such share of Shares (or security entitlements in respect thereof) or other item of collateral, prior to the sale, pledge, assignment or other transfer or enforcement of such share of Shares (or security entitlements in respect thereof) or other item of collateral and (iv) any registration or qualification requirement or prospectus delivery requirement for such share of Shares (or security entitlements in respect thereof) or other item of collateral pursuant to any federal, state or foreign securities law (including, without limitation, any such requirement arising as a result of Rule 144 or Rule 145 under the Securities Act); provided that the required delivery of any assignment, instruction or entitlement order from the seller, pledgor, assignor or transferor of such share of Shares (or security entitlements in respect thereof) or other item of collateral, together with any evidence of the corporate or other authority of such Person, shall not constitute a “Transfer Restriction”.
|
UBS Securities LLC
|
||||
By:
|
/s/ Jennifer Van Nest
|
By:
|
/s/ Samuel Benelbas
|
|
Name: Jennifer Van Nest
|
Name: Samuel Benelbas
|
|||
Title: Executive Director
|
Title: Associate Director, UBS Investment Bank
|
|||
UBS AG, London Branch
|
||||
By:
|
/s/ Tracy Johnson
|
By:
|
/s/ Lisa Woo
|
|
Name: Tracy Johnson
|
Name: Lisa Woo
|
|||
Title: Director
|
Title: Associate Director
|
Accepted and agreed,
|
|||
SALT POND HOLDINGS LLC
|
|||
By:
|
/s/ William C. Erbey
|
May 19, 2015
|
|
Name: William C. Erbey
|
Date
|
||
Title: President
|
UBS AG, LONDON BRANCH
|
|
100 Liverpool Street
|
|
London EC2M 2RH
|
|
Documentation: Tel: +44 207 568 0673
|
|
Fax: +44 207 568 9895/ 9896
|
Date:
|
May 18, 2015
|
To:
|
Salt Pond Holdings LLC (“Party B”)
|
From:
|
UBS AG London Branch (“Party A”)
as Transacting Branch
|
Re:
|
Equity Option Confirmation
UBS Reference Number BKP352STM4260785
|
Master Agreement Date:
|
May 1, 2015
|
Pledge Agreement Date:
|
May 1, 2015
|
Trade Date:
|
May 18, 2015
|
Buyer:
|
Party A
|
Seller:
|
Party B
|
Option Type:
|
Call
|
Option Style:
|
European
|
Underlying Shares:
|
Common Stock of Ocwen Financial Corporation (Ticker: OCN)
|
Number of Underlying Shares:
|
1,000,000
|
Strike Price:
|
USD 14,1822
|
Premium:
|
USD 1,266,200
|
Premium Payment Date:
|
May 21, 2015
|
Exchange:
|
The primary national securities market or automated quotation system on which the Underlying Shares are admitted for trading or quoted.
|
Related Exchange:
|
The primary exchange on which options or futures on the Shares are traded
|
Calculation Agent:
|
Party A, whose calculations shall be binding absent manifest error
|
Clearance System:
|
The Depository Trust Company, or any successor to or transferee of such clearance system.
|
Expiration Date:
|
April 21, 2017, or, if that day is not an Exchange Business Day, the first following day that is an Exchange Business Day.
|
Expiration Time:
|
At the close of trading on the Exchange (without regard to any extended or after-hours trading sessions).
|
Automatic Exercise:
|
Applicable
|
Party A:
|
Telephone: 212-713-3638
Fax: 212-821-2407
|
Party B:
|
Telephone: 340-244-3910
|
Settlement:`
|
Physical Settlement shall apply. Seller agrees to deliver to Buyer on the Settlement Date a number of Shares equal to the Number of Underlying Shares plus any amounts that Buyer is obligated to pay as a result of physically settling a derivative contract pursuant to Section 31 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and Buyer agrees to pay to Seller the Strike Price per Share delivered; provided, however, that Party B may elect Cash Settlement (whether Party B is the Seller or Buyer) by giving notice to Party A no later than ten Exchange Business Days prior to the Expiration Date.
|
Reference Price:
|
The closing price per underlying Share as reported by the Exchange at the Valuation Time on the Valuation Date
|
Cash Settlement:
|
If the Transaction is to be Cash Settled, on the Settlement Date, payment shall be made by Seller to Buyer in an amount equal to (i) the Number of Underlying Shares, and (ii) the amount, if any, by which the Reference Price exceeds the Strike Price.
|
Account for payments to Party A:
|
As separately notified.
|
Account for payments to Party B:
|
As separately notified.
|
Security Agreement:
|
The Transaction shall be subject to the Pledge Agreement, pursuant to which Party B is required to deliver the Required Collateral and pursuant to which UBS AG, Stamford Branch acts as Collateral Agent.
|
Required Collateral:
|
1,000,000 Underlying Shares.
|
Dividend Amount Payment:
|
On each Dividend Payment Date, Party B shall pay to Party A an amount in cash equal to the product of (i) either, as the case may be, (a) the amount or value of the Ordinary Dividend per share less the Dividend Cap Amount per share, provided the amount or value is greater than zero, or (b) the Extraordinary Dividend per share, and (ii) the Number of Shares representing Party A’s theoretical hedge position as of the ex-dividend date for such dividend, as determined by the Calculation Agent.
|
Dividend Payment Date:
|
With respect to each Ordinary Dividend or Extraordinary Dividend, the day on which the corresponding dividend is paid by to shareholders of Common Stock.
|
Ordinary Dividend:
|
Any ordinary cash dividend on the shares.
|
Dividend Cap Amount:
|
$0
|
Extraordinary Dividend:
|
Any dividend or distribution on the Shares excluding any Ordinary Dividend, as determined by the Calculation Agent.
|
1. Hedge Transactions:
|
In connection with establishing its hedge with respect to the Options, Party A may execute one or more transactions with its affiliates or third parties.
|
2. Related Compensation:
|
In connection with the Options, Party A has paid a commission to UBS Financial Services.
|
3. Additional Termination Events:
|
The occurrence of either a Hedging Disruption Event or an Excess Borrow Cost Event shall constitute an Event of Default with respect to the portion of the Transaction affected by the Hedging Disruption Event or the Excess Borrow Cost Event, and the amount(s) payable, if any, by one or the other party will be determined by the Calculation Agent as if Counterparty is the Defaulting Party.
WHERE
“Excess Borrow Cost Event” shall mean events or circumstances occurring any time after the Trade Date which are beyond the control of Party A and that have resulted in Party A’s inability to, after using commercially reasonable efforts, maintain a borrow of Shares (up to a number equal to the Number of Shares) on terms that require Party A to pay borrow costs in an amount less than or equal to the Fixed Borrow Cost.
“Excess Borrow Costs” for any day equals the amount per Share by which Party A’s direct or indirect average cost of borrowing the Shares for such day exceeds the Fixed Borrow Cost.
“Hedging Disruption Event” shall mean events or circumstances occurring any time following the Trade Date hereof, which are beyond the control of Party A and that have resulted in Party A’s inability to, after using commercially reasonable efforts, (1) successfully borrow the Shares, (2) acquire, establish, re-establish, substitute, maintain, unwind or dispose of any transaction(s) or asset(s) it deems necessary to hedge the equity price risk of entering into and performing its obligations with respect to the relevant Transaction, or (3) realize, recover or remit the proceeds of any such transaction(s) or asset(s).
“Fixed Borrow Cost” means 75 basis points.
|
4. Role of Agent:
|
UBS Securities LLC shall act as agent (the “Agent”) for Party A and Party B within the meaning of Rule 15a-6 under the Exchange Act of 1934 in connection with this Transaction. Each party agrees and acknowledges that (i) the Agent acts solely as agent on a disclosed basis with respect to the transactions contemplated hereunder, and (ii) the Agent has no obligation, by guaranty, endorsement or otherwise, with respect to the obligations of either Party A or Party B hereunder. In this regard, each of Party A and Party B acknowledges and agrees to look solely to the other for performance hereunder, and not to the Agent. Party A is not a member of the Securities Investor Protection Corporation (SIPC).
|
5. Additional Representations,
Warranties and Agreements:
|
(i) Delivery of Shares (or security entitlements in respect thereof) by Seller pursuant to this Agreement will pass to Buyer title to such Shares (or security entitlements) free and clear of any Liens and any Transfer Restrictions, except for those created pursuant to the Pledge Agreement.
(ii) Seller is not the beneficial owner (as defined in Rule 13d-3 under the Exchange Act, but treating any securities beneficially owned by Seller that are convertible, exchangeable or exercisable into or for equity securities of the Company as if they had been converted, exchanged or exercised) of more than twenty percent of the outstanding Shares of any class or series of equity securities issued by the Company. For purposes of this representation, Seller shall be deemed to have beneficial ownership of any securities beneficially owned by Seller within the meaning of said Rule 13d-3 whether such beneficial ownership is direct or indirect and whether it is based on securities individually owned by Seller or securities owned as a member of a “group” within the meaning of Rule 13d-5(b) under the Exchange Act.
(iii) Seller acknowledges and agrees that Buyer and its affiliates may engage in proprietary trading for their own accounts and the accounts of their affiliates in the Shares or in securities that are convertible, exercisable or exchangeable into or for Shares (including such trading as Buyer or its affiliates deem appropriate in their sole discretion to hedge its or their market risk in any transaction whether between Buyer and Seller or with other third parties) and that such trading may affect the value of the Shares.
(iv) Seller is not an “affiliate” of the issuer of the Shares within the meaning of Rule 144 under the Securities Act.
(v) Seller (1) acquired and made full payment for all shares of Common Stock pledged under the Pledge Agreement (or in respect of which security entitlements are pledged hereunder) at least one year prior to pledging such shares thereunder and owns and, at all times prior to the release of the Collateral pursuant to the terms of the Pledge Agreement, will own the Collateral free and clear of any Liens (other than the Security Interests) or Transfer Restrictions and (2) is not and will not become a party to or otherwise bound by any agreement, other than this Agreement, that (x) restricts in any manner the rights of any present or future owner of the Collateral with respect thereto or (y) provides any person other than Pledgor, the Collateral Agent, the Secured Party or any securities intermediary (including the Securities Intermediary) (but in the case of any such securities intermediary only in respect of Collateral held through it) with control (as defined in Section 8-106 of the UCC) with respect to any Collateral, including without limitation, the Securities Account and the financial assets and other property held therein or credited thereto.
|
Rule 144:
|
Means Rule 144 under the Securities Act.
|
Transfer Restriction:
|
Means, with respect to any share of Shares (or security entitlements in respect thereof) or other item of collateral pledged under the Pledge Agreement, any condition to or restriction on the ability of the holder thereof to sell, assign or otherwise transfer
|
such share of Shares (or security entitlements in respect thereof) or other item of collateral or to enforce the provisions thereof or of any document related thereto whether set forth in such item of Collateral itself or in any document related thereto, including, without limitation, (i) any requirement that any sale, assignment or other transfer or enforcement of such share of Shares (or security entitlements in respect thereof) or other item of collateral be consented to or approved by any Person, including, without limitation, the issuer thereof or any other obligor thereon, (ii) any limitations on the type or status, financial or otherwise, of any buyer, pledgee, assignee or transferee of such share of Shares (or security entitlements in respect thereof) or other item of collateral, (iii) any requirement of the delivery of any certificate, consent, agreement, opinion of counsel, notice or any other document of any Person to the issuer of, any other obligor on or any registrar or transfer agent for, such share of Shares (or security entitlements in respect thereof) or other item of collateral, prior to the sale, pledge, assignment or other transfer or enforcement of such share of Shares (or security entitlements in respect thereof) or other item of collateral and (iv) any registration or qualification requirement or prospectus delivery requirement for such share of Shares (or security entitlements in respect thereof) or other item of collateral pursuant to any federal, state or foreign securities law (including, without limitation, any such requirement arising as a result of Rule 144 or Rule 145 under the Securities Act); provided that the required delivery of any assignment, instruction or entitlement order from the seller, pledgor, assignor or transferor of such share of Shares (or security entitlements in respect thereof) or other item of collateral, together with any evidence of the corporate or other authority of such Person, shall not constitute a “Transfer Restriction”.
|
UBS Securities LLC
|
||||
By:
|
/s/ Jennifer Van Nest
|
By:
|
/s/ Samuel Benelbas
|
|
Name: Jennifer Van Nest
|
Name: Samuel Benelbas
|
|||
Title: Executive Director
|
Title: Associate Director, UBS Investment Bank
|
|||
UBS AG, London Branch
|
||||
By:
|
/s/ Tracy Johnson
|
By:
|
/s/ Lisa Woo
|
|
Name: Tracy Johnson
|
Name: Lisa Woo
|
|||
Title: Director
|
Title: Associate Director
|
Accepted and agreed,
|
|||
SALT POND HOLDINGS LLC
|
|||
By:
|
/s/ William C. Erbey
|
May 19, 2015
|
|
Name: William C. Erbey
|
Date
|
||
Title: President
|
Salt Pond Holdings LLC
|
|
/s/ William C. Erbey
|
May 1, 2015
|
By: William C. Erbey
|
Date
|
Title: President and CEO
|
|
Address: PO Box 25437
Christiansted, VI 00824
|
UBS AG, London Branch,
|
|||
as Options Office
|
|||
By: /s/ Gordon S. Kiesling
|
By: /s/ Hina Mehta
|
||
Name: Gordon S. Kiesling
|
Name: Hina Mehta
|
||
Title: Executive Director and Counsel
Region Americas Legal
|
Title: Executive Director and Counsel
Region Americas Legal
|
UBS AG, Stamford Branch,
|
|||
as Collateral Agent
|
|||
By: /s/ Gordon S. Kiesling
|
By: /s/ Hina Mehta
|
||
Name: Gordon S. Kiesling
|
Name: Hina Mehta
|
||
Title: Executive Director and Counsel
Region Americas Legal
|
Title: Executive Director and Counsel
Region Americas Legal
|
UBS Financial Services Inc.,
|
|
as Securities Intermediary
|
|
By: /s/ Debra Ricki
|
|
Name: Debra Ricki
|
|
Title: Complex Administrative Manager
|
By: /s/ Robert Jareat
|
|
Name: Robert Jareat
|
|
Title: Director
|
Salt Pond Holdings LLC
|
|
|
|
By:
|
Date
|
Title:
|
|
Address:
|
UBS AG, London Branch,
|
|||
as Options Office
|
|||
By: ____________________________
|
By: _____________________________
|
||
Name:
|
Name:
|
||
Title:
|
Title:
|
UBS AG, Stamford Branch,
|
|||
as Collateral Agent
|
|||
By: ____________________________
|
By: _____________________________
|
||
Name:
|
Name:
|
||
Title:
|
Title:
|
UBS Financial Services Inc.,
|
|
as Securities Intermediary
|
|
By: ___________________
|
|
Name:
|
|
Title:
|
By: ______________________________
|
|
Name:
|
|
Title:
|