Registration No. 333-_______
Filed August ___ ,1998
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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OCWEN FINANCIAL CORPORATION
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(Exact Name of Registrant as specified in its Articles of Incorporation)
FLORIDA 65-0039856
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(State of incorporation) (IRS Employer Identification No.)
The Forum, Suite 1000
1675 Palm Beach Lakes Boulevard
WEST PALM BEACH, FLORIDA 33401
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(Address of principal executive offices, including zip code)
OCWEN FINANCIAL CORPORATION
LONG-TERM INCENTIVE PLAN
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(Full Title of the Plan)
Copy to:
William C. Erbery James J. Barnes, Esquire
Chairman and Chief Executive Officer Buchanan Ingersoll
Ocwen Financial Corporation Professional Corporation
The Forum, Building A One Oxford Centre
1675 Palm Beach Lakes Boulevard 301 Grant Street, 20th Floor
West Palm Beach, FL 33401 Pittsburgh, PA 15219-1410
(561) 682-8000 (412) 562-1415
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(Name, address, and telephone number
of agent for service)
CALCULATION OF REGISTRATION FEE
Title of Proposed Proposed
Securities Maximum Maximum
to be Amount to be Offering Price Aggregate Amount of
Registered Registered Per Share Offering Price Registration Fee
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Common Stock, par
value $.01 3,646,314 (1) $18.4375(1) $67,228,914(1) $19,833
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(1) Estimated solely for the purpose of calculating the registration fee, which
has been calculated pursuant to Rule 457(h) promulgated under the Securities Act
of 1933, as amended ("Securities Act"). In accordance with Rule 457(h), such
price is the average of the high and low sale prices for the Common Stock as
quoted on the New York Stock Exchange on August 21, 1998, as reported in The
Wall Street Journal.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
ITEM 1. PLAN INFORMATION.
The documents containing the information specified in Part I of this
Registration Statement will be sent or given to employees as specified by Rule
428(b)(1). Such documents are not required to be and are not filed with the
Securities and Exchange Commission (the "Commission") either as a part of this
Registration Statement or as prospectuses or prospectus supplements pursuant to
Rule 424. These documents and the documents incorporated by reference in this
Registration Statement pursuant to Item 3 of Part II of this Form S-8, taken
together, constitute a prospectus that meets the requirements of Section 10(a)
of the Securities Act.
ITEM 2. COMPANY INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
Upon written or oral request, any of the documents incorporated herein
by reference in Item 3 of Part II of this Registration Statement (which
documents are incorporated by reference in this Section 10(a) Prospectus) and
other documents required to be delivered to eligible employees pursuant to Rule
428(b) or additional information about the Ocwen Financial Corporation Long-Term
Incentive Plan and its administrators are available without charge by
contacting:
Ocwen Financial Corporation
The Forum, Building A
1675 Palm Beach Lakes Boulevard
West Palm Beach, Florida 33401
(561) 682-8000
Attention: Secretary
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed or to be filed with the Commission are
incorporated by reference in this Registration Statement:
(a) The Annual Report on Form 10-K of the Company for the
year ended December 31, 1997;
(b) All reports filed by the Company pursuant to Sections
13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), since the end of the fiscal year covered by the
Company's Annual Report on Form 10-K referred to in clause (a) above;
(c) The description of the Common Stock of the Company
contained in the Company's Registration Statement on Form 8-A
(Commission File No. 1-3219) filed with the Commission on July 25,
1997; and
(d) All documents filed by the Company pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Exchange Act after the date hereof and
prior to the filing of a post-effective amendment which indicates that
all securities offered have been sold or which deregisters all
securities then remaining unsold.
Any statement contained in this Registration Statement, or in a
document incorporated or deemed to be incorporated by reference herein, shall be
deemed to be modified or superseded for purposes of this Registration Statement
to the extent that a statement contained herein, or in any other subsequently
filed document which also is or is deemed to be incorporated by reference
herein, modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM. 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The financial statements and schedules incorporated by reference in the
Company's 1997 Annual Report on Form 10-K, also incorporated by reference in the
prospectus and elsewhere in this Registration Statement, have been so
incorporated in reliance on the report of PricewaterhouseCoopers LLP,
independent accountants, given on the authority of said firm as experts in
accounting and auditing.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Article V of the Company's Articles of Incorporation provides as
follows:
INDEMNIFICATION
This corporation shall, to the fullest extent permitted by the
provisions of Fla. Stat. Section 607.0850, as the same may be amended and
supplemented, indemnify any and all persons whom it shall have power to
indemnify under said section from and against any and all of the expenses,
liabilities, or other matters referred to in or covered by said section, and the
indemnification provided for herein shall not be deemed exclusive of any other
rights to which those indemnified may be entitled under any Bylaw, agreement,
vote of stockholders or disinterested directors or otherwise, both as to action
in his official capacity and as to action in another capacity while holding such
office, and shall continue as to a person who has ceased to be a director,
officer, employee, or agent and shall inure to the benefit of the heirs,
executors, and administrators of such a person.
Section 607.0850 of the Florida Business Corporation Act provides as
follows:
607.0850 INDEMNIFICATION OF OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS.
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(1) A corporation shall have the power to indemnify any person who was
or is a party to any proceeding (other than an action by, or in the right of,
the corporation), by reason of the fact that he or she is or was a director,
officer, employee, or agent of the corporation or is or was serving at the
request of the corporation as a director, officer, employee, or agent of another
corporation, partnership, joint venture, trust, or other enterprise against
liability incurred in connection with such proceeding, including any appeal
thereof, if he or she acted in good faith and in a manner he or she reasonably
believed to be in, or not opposed to, the best interests of the corporation and,
with respect to any criminal action or proceeding, had no reasonable cause to
believe his or her conduct was unlawful. The termination of any proceeding by
judgment, order, settlement, or conviction or upon a plea of nolo contendere or
its equivalent shall not, of itself, create a presumption that the person did
not act in good faith and in a manner which he or she reasonably believed to be
in, or not opposed to, the best interests of the corporation or, with respect to
any criminal action or proceeding, had reasonable cause to believe that his or
her conduct was unlawful.
(2) A corporation shall have power to indemnify any person, who was or
is a party to any proceeding by or in the right of the corporation to procure a
judgment in its favor by reason of the fact that the person is or was a
director, officer, employee, or agent of the corporation or is or was serving at
the request of the corporation as a director, officer, employee, or agent of
another corporation, partnership, joint venture, trust, or other enterprise,
against expenses and amounts paid in settlement not exceeding, in the judgment
of the board of directors, the estimated expense of litigating the proceeding to
conclusion, actually and reasonably incurred in connection with the defense or
settlement of such proceeding, including any appeal thereof. Such
indemnification shall be authorized if such person acted in good faith and in a
manner he or she reasonably believed to be in, or not opposed to, the best
interests of the corporation, except that no indemnification shall be made under
this subsection in respect of any claim, issue, or matter as to which such
person shall have been adjudged to be liable unless, and only to the extent
that, the court in which such proceeding was brought, or any other court of
competent jurisdiction, shall determine upon application that, despite the
adjudication of liability but in view of all circumstances of the case, such
person is fairly and reasonably entitled to indemnity for such expenses which
such court shall deem proper.
(3) To the extent that a director, officer, employee, or agent of a
corporation has been successful on the merits or otherwise in defense of any
proceeding referred to in subsection (1) or subsection (2), or in defense of any
claim, issue, or matter therein, he or she shall be indemnified against expenses
actually and reasonably incurred by him or her in connection therewith.
(4) Any indemnification under subsection (1) or subsection (2), unless
pursuant to a determination by a court, shall be made by the corporation only as
authorized in the specific case upon a determination that indemnification of the
director, officer, employee, or agent is proper in the circumstances because he
or she has met the applicable standard of conduct set forth in subsection (1) or
subsection (2). Such determination shall be made:
(a) By the board of directors by a majority vote of a quorum
consisting of directors who were not parties to such proceeding;
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(b) If such a quorum is not obtainable or, even if obtainable,
by majority vote of a committee duly designated by the board of directors (in
which directors who are parties may participate) consisting solely of two or
more directors not at the time parties to the proceeding;
(c) By independent legal counsel:
(1) Selected by the board of directors prescribed in
paragraph (a) or the committee prescribed in paragraph (b); or
(2) If a quorum of the directors cannot be obtained for
paragraph (a) and the committee cannot be designated under paragraph (b),
selected by majority vote of the full board of directors (in which directors who
are parties may participate); or
(d) By the shareholders by a majority vote of a quorum
consisting of shareholders who were not parties to such proceeding or, if no
such quorum is obtainable, by a majority vote of shareholders who were not
parties to such proceeding.
(5) Evaluation of the reasonableness of expenses and authorization of
indemnification shall be made in the same manner as the determination that
indemnification is permissible. However, if the determination of permissibility
is made by independent legal counsel, persons specified by paragraph (4)(c)
shall evaluate the reasonableness of expenses and may authorize indemnification.
(6) Expenses incurred by an officer or director in defending a civil or
criminal proceeding may be paid by the corporation in advance of the final
disposition of such proceeding upon receipt of an undertaking by or on behalf of
such director or officer to repay such amount if he or she is ultimately found
not to be entitled to indemnification by the corporation pursuant to this
section. Expenses incurred by other employees and agents may be paid in advance
upon such terms or conditions that the board of directors deems appropriate.
(7) The indemnification and advancement of expenses provided pursuant
to this section are not exclusive, and a corporation may make any other or
further indemnification or advancement of expenses of any of its directors,
officers, employees, or agents, under any bylaw, agreement, vote of shareholders
or disinterested directors, or otherwise, both as to action in his official
capacity and as to action in another capacity while holding such office.
However, indemnification or advancement of expenses shall not be made to or on
behalf of any director, officer, employee, or agent if a judgment or other final
adjudication establishes that his or her actions, or omissions to act, were
material to the cause of action so adjudicated and constitute:
(a) A violation of the criminal law, unless the director,
officer, employee, or agent had reasonable cause to believe his or her conduct
was lawful or had no reasonable cause to believe his or her conduct was
unlawful;
(b) A transaction from which the director, officer, employee, or
agent derived an improper personal benefit;
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(c) In the case of a director, a circumstance under which the
liability provisions of s.607.0834 are applicable; or
(d) Willful misconduct or a conscious disregard for the best
interests of the corporation in a proceeding by or in the right of the
corporation to procure a judgment in its favor or in a proceeding by or in the
right of a shareholder.
(8) Indemnification and advancement of expenses as provided in this
section shall continue as, unless otherwise provided when authorized or
ratified, to a person who has ceased to be a director, officer, employee, or
agent and shall inure to the benefit of the heirs, executors, and administrators
of such a person, unless otherwise provided when authorized or ratified.
(9) Unless the corporation's articles of incorporation provide
otherwise, notwithstanding the failure of a corporation to provide
indemnification, and despite any contrary determination of the board or of the
shareholders in the specific case, a director, officer, employee, or agent of
the corporation who is or was a party to a proceeding may apply for
indemnification or advancement of expenses, or both, to the court conducting the
proceeding, to the circuit court, or to another court of competent jurisdiction.
On receipt of an application, the court, after giving notice that it considers
necessary, may order indemnification and advancement of expenses, including
expenses incurred in seeking court-ordered indemnification or advancement of
expenses, if it determines that:
(a) The director, officer, employee, or agent is entitled to
mandatory indemnification under subsection (3), in which case the court shall
also order the corporation to pay the director reasonable expenses incurred in
obtaining court-ordered indemnification or advancement of expenses;
(b) The director, officer, employee or agent is entitled to
indemnification or advancement of expenses, or both, by virtue of the exercise
by the corporation of its power pursuant to subsection (7); or
(c) The director, officer, employee, or agent is fairly and
reasonably entitled to indemnification or advancement of expenses, or both, in
view of all the relevant circumstances, regardless of whether such person met
the standard of conduct set forth in subsection (1), subsection (2), or
subsection (7).
(10) For purposes of this section, the term "corporation" includes, in
addition to the resulting corporation, any constituent corporation (including
any constituent of a constituent) absorbed in a consolidation or merger, so that
any person who is or was a director, officer, employee, or agent of a
constituent corporation, or is or was serving at the request of a constituent
corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust, or other enterprise, is in the same position
under this section with respect to the resulting or surviving corporation as he
would have with respect to such constituent corporation if its separate
existence had continued.
(11) For purposes of this section:
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(a) The term "other enterprises" includes employee benefit
plans;
(b) The term "expenses" includes counsel fees, including those
for appeal;
(c) The term "liability" includes obligations to pay for a
judgment, settlement, penalty, find (including an excise tax assessed with
respect to any employee benefit plan), and expenses actually and reasonably
incurred with respect to a proceeding;
(d) The term "proceeding" includes any threatened, pending, or
completed action, suit, or other type of proceeding, whether civil, criminal,
administrative, or investigative and whether formal or informal;
(e) The term "agent" includes a volunteer;
(f) The term "serving at the request of the corporation"
includes any service as a director, officer, employee, or agent of the
corporation that imposes duties on such persons, including duties relating to an
employee benefit plan and its participants or beneficiaries; and
(g) The term "not opposed to the best interest of the
corporation" describes the actions of a person who acts in good faith and in a
manner he or she reasonably believes to be in the best interests of the
participants and beneficiaries of an employee benefit plan.
(12) A corporation shall have power to purchase and maintain insurance
on behalf of any person who is or was a director, officer, employee, or agent of
the corporation or is or was serving at the request of the corporation as a
director, officer, employee, or agent of another corporation, partnership, joint
venture, trust, or other enterprise against any liability asserted against him
and incurred by him in any such capacity or arising out of his or her status as
such, whether or not the corporation would have the power to indemnify him
against such liability under the provisions of this section.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The following exhibits are filed with or incorporated by reference into
this Registration Statement on Form S-8 (numbering corresponds to Exhibit Table
in Item 601 of Regulation S-K):
No. Exhibit
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4.01 Amended and Restated Articles of Incorporation (incorporated
by reference to the similarly described exhibit filed in
connection with the Company's Registration Statement on Form
S-1, File No. 333-5153)
4.02 Bylaws, as amended (incorporated by reference to the similarly
described exhibit filed in connection with the Company's
Registration Statement on Form S-1, File No. 333-5153)
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5 Opinion of Buchanan Ingersoll Professional Corporation (filed
herewith)
23.01 Consent of PricewaterhouseCoopers LLP (filed herewith)
23.02 Consent of Buchanan Ingersoll Professional Corporation
(contained in opinion filed as Exhibit 5.01 hereto)
24 Power of attorney for any subsequent amendments (contained in
the signature pages hereto)
99.1 Ocwen Financial Corporation Long-Term Incentive Plan
(incorporated by reference to the similarly described exhibit
to the Company's Definitive Proxy Statement with respect to
the Company's 1998 Annual Meeting as filed with the Commission
on March 31, 1998)
ITEM 9. UNDERTAKINGS.
The undersigned Company hereby undertakes:
1. To file, during any period in which offers or sales are being made,
a post-effective amendment to this Registration Statement: (i) to include any
prospectus required by Section 10(a)(3) of the Securities Act; (ii) to reflect
in the prospectus any facts or events arising after the effective date of the
Registration Statement (or the most recent post-effective amendment thereof)
which, individually or in the aggregate, represent a fundamental change in the
information set forth in the Registration Statement; and (iii) to include any
material information with respect to the plan of distribution not previously
disclosed in the Registration Statement or any material change in such
information in the Registration Statement; provided, however, that clauses (i)
and (ii) do not apply if the information required to be included in a
post-effective amendment by those clauses is contained in periodic reports filed
by the Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act
that are incorporated by reference in the Registration Statement.
2. That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
3. To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
4. That, for the purposes of determining any liability under the
Securities Act, each filing of the Registrant's annual report pursuant to
Section 13(a) or Section 15(d) of the Exchange Act that is incorporated by
reference in the Registration Statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
5. Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Registrant pursuant to the foregoing provisions or otherwise, the
Registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against liabilities (other than the
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payment by the Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the Registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the questions whether
such indemnification by it is against public policy expressed in the Securities
Act and will be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized in the city of West Palm Beach, State of Florida, on the 25th
day of August, 1998.
OCWEN FINANCIAL CORPORATION
By: /s/ WILLIAM C. ERBEY
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William C. Erbey, Chairman and
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities and on the dates indicated. Each person whose signature appears below
hereby makes, constitutes and appoints William C. Erbey his true and lawful
attorney, with full power to sign for such person and in such person's name and
capacity indicated below, and with full power of substitution any and all
amendments to this Registration Statement, hereby ratifying and confirming such
person's signature as it may be signed by said attorney to any and all
amendments.
/s/ WILLIAM C. ERBEY August 25, 1998
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William C. Erbey
Chairman and Chief Executive Officer
(Principal Executive Officer)
/s/ THOMAS F. LEWIS August 25, 1998
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Hon. Thomas F. Lewis
Director
/s/ W.C. MARTIN August 11, 1998
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W.C. Martin
Director
/s/ HOWARD H. SIMON August 25, 1998
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Howard H. Simon
Director
/s/ BARRY N WISH August 25, 1998
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Barry N. Wish
Director
/s/ MARK S. ZEIDMAN August 25, 1998
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Mark S. Zeidman
Senior Vice President and
Chief Financial Officer
(Principal Financial and
Accounting Officer)
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Exhibit 5.01
August 25, 1998
Board of Directors
Ocwen Financial Corporation
The Forum, Building A
1675 Palm Beach Lakes Boulevard
West Palm Beach, FL 33401
Gentlemen:
We have acted as counsel to Ocwen Financial Corporation, a Florida
corporation (the "Company"), in connection with the proposed issuance by the
Company of up to 3,646,314 shares of the Company's Common Stock, par value $0.01
per share (the "Common Stock"), pursuant to the terms of the Ocwen Financial
Corporation Long-Term Incentive Plan (the "Plan").
In connection with such proposed issuance, we have examined the Plan,
the Articles of Incorporation of the Company, as amended, the Bylaws of the
Company, as amended, the relevant corporate proceedings of the Company, the
Registration Statement on Form S-8 covering the issuance of such shares, and
such other documents, records, certificates of public officials, statutes and
decisions as we consider necessary to express the opinions contained herein. In
the examination of such documents, we have assumed the genuineness of all
signatures and the authenticity of all documents submitted to us as originals
and the conformity to those original documents of all documents submitted to us
as certified or photostatic copies.
Based on the foregoing, we are of the opinion that when the
Registration Statement shall have been declared effective by order of the
Securities and Exchange Commission and when the Common Stock has been duly
issued and delivered pursuant to the terms of the Plan, such shares of Common
Stock will be validly issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
BUCHANAN INGERSOLL
PROFESSIONAL CORPORATION
By: /s/ James J. Barnes, Esquire
Exhibit 23.01
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We hereby consent to the incorporation by reference in this
registration statement on Form S-8 of our report dated January 27, 1998,
incorporated by reference into Ocwen Financial Corporation's Annual Report on
Form 10-K for the year ended December 31, 1997. We also consent to the
references to us under the heading Interest of Named Experts and Counsel.
/s/ PRICEWATERHOUSECOOPERS LLP
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PricewaterhouseCoopers LLP
Ft. Lauderdale, Florida
August 25, 1998
