Exhibit 10.1 


EXECUTION COPY 


SHARE PURCHASE AGREEMENT


          This
Share Purchase Agreement (this “Agreement”)
is dated as of March 27, 2009, by and among Ocwen Financial Corporation, a
Florida corporation (the “Company”),
and each purchaser identified on the signature pages hereto (each, including
its successors and assigns, a “Purchaser”
and collectively, the “Purchasers”).



RECITALS


          A.
The Company and each Purchaser is executing and delivering this Agreement in
reliance upon the exemption from securities registration afforded by Section
4(2) of the Securities Act of 1933, as amended (the “Securities Act”), and Rule 506 of Regulation D
(“Regulation D”) as promulgated by the
United States Securities and Exchange Commission (the “Commission”) under the Securities Act. 


          B.
Each Purchaser, severally and not jointly, wishes to purchase, and the Company
wishes to sell, upon the terms and conditions stated in this Agreement, that
aggregate number of shares of common stock, par value $0.01 per share (the “Common Stock”), of the Company, set forth
below such Purchaser’s name on the signature page of this Agreement (which
aggregate amount for all Purchasers together shall be 5,471,500 shares of
Common Stock and shall be collectively referred to herein as the “Shares”). 


          C.
Contemporaneously with the execution and delivery of this Agreement, the
parties hereto are executing and delivering a Registration Rights Agreement,
substantially in the form attached hereto as Exhibit A (the “Registration Rights Agreement”), pursuant
to which, among other things, the Company will agree to provide certain
registration rights with respect to the Shares under the Securities Act and the
rules and regulations promulgated thereunder and applicable state securities
laws.  


          NOW,
THEREFORE, IN CONSIDERATION of the mutual covenants contained in this
Agreement, and for other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the Company and the Purchasers
hereby agree as follows: 


ARTICLE I. 

DEFINITIONS


          1.1
Definitions. In addition to the terms defined elsewhere in this
Agreement, for all purposes of this Agreement, the following terms shall have
the meanings indicated in this Section 1.1: 


          “Action” means any action, suit, notice
of
violation, proceeding (including any partial proceeding such as a deposition)
or investigation pending or, to the Company’s Knowledge, threatened in writing
against the Company, any Subsidiary or any of their respective properties or
any officer, director or employee of the Company or any Subsidiary acting in
his or her capacity as an officer, director or employee before or by any
federal, state, county, local or foreign court, arbitrator, governmental or
administrative agency, regulatory authority, stock market, stock exchange or
trading facility. 






          “Affiliate” means, with respect to any
Person, any other Person that, directly or indirectly through one or more
intermediaries, Controls, is controlled by or is under common control with such
Person, as such terms are used in and construed under Rule 405 under the
Securities Act. With respect to a Purchaser, any investment fund or managed
account that is managed on a discretionary basis by the same investment manager
as such Purchaser will be deemed to be an Affiliate of such Purchaser. 


          “Agreement” shall have the meaning
ascribed
to such term in the Preamble. 


          “Business Day” means a day, other than a
Saturday or Sunday, on which banks in New York City are open for the general
transaction of business. 


          “Closing” means the closing of the
purchase
and sale of the Shares pursuant to this Agreement. 


“Closing Date” means the Trading Day when
all of the Transaction Documents have been executed and delivered by the
applicable parties thereto, and all of the conditions set forth in Sections
2.1, 2.2, 5.1 and 5.2 hereof are satisfied, or such other date as the parties
may agree. 


          “Commission” has the meaning set forth in
the Recitals. 


          “Common Stock” has the meaning set forth
in
the Recitals, and also includes any securities into which the Common Stock may
hereafter be reclassified or changed. 


          “Common Stock Equivalents” means any
securities of the Company or any Subsidiary which would entitle the holder
thereof to acquire at any time Common Stock, including, without limitation, any
debt, preferred stock, rights, options, warrants or other instrument that is at
any time convertible into or exchangeable for, or otherwise entitles the holder
thereof to receive, Common Stock or other securities that entitle the holder to
receive, directly or indirectly, Common Stock. 


          “Company Counsel” means O’Melveny
&
Myers LLP. 


          “Company Deliverables” has the meaning
set
forth in Section 2.2(a). 


          “Company’s Knowledge” means with
respect to
any statement made to the knowledge of the Company, that the statement is based
upon the actual knowledge of William Erbey, David Gunter, Paul Koches and Kevin
Wilcox (such persons, the “Knowledge Persons”)
after inquiry of their respective direct reporting officers as would be usual
and customary under the circumstances. 


          “Control” (including the terms
“controlling”, “controlled by” or “under common control with”) means the
possession, direct or indirect, of the power to direct or cause the direction
of the management and policies of a Person, whether through the ownership of
voting securities, by contract or otherwise. 


          “Disclosure Materials” has the meaning
set
forth in Section 3.1(h). 


          “Effective Date” means the date on which
the initial Registration Statement required by Section 2(a) of the Registration
Rights Agreement is first declared effective by the Commission. 


          “Environmental Laws” has the meaning set
forth in Section 3.1(l). 


          “Exchange Act” means the Securities
Exchange Act of 1934, as amended, or any successor statute, and the rules and
regulations promulgated thereunder. 


          “GAAP” means U.S. generally accepted
accounting principles, as applied by the Company. 


2






          “Intellectual Property” has the meaning
set
forth in Section 3.1(r). 


          “Lien” means any lien, charge, claim,
encumbrance, security interest, right of first refusal, preemptive right or
other restrictions of any kind. 


          “Material Adverse Effect” means any of
(i)
a material adverse effect on the legality, validity or enforceability, as it
would relate to the Company, of any Transaction Document, (ii) a material
adverse effect on the Company’s ability to perform its obligations under any
Transaction Document or (iii) a material adverse effect on the results of
operations, business or condition (financial or otherwise) of the Company and
the Subsidiaries, taken as a whole; provided, that none of the following (or
the results thereof) shall be a Material Adverse Effect: (A) any occurrence,
condition, change, event or effect resulting from changes (x) in general
economic or political conditions or financial, credit or securities markets
conditions or (y) that generally affect the industries in which the Company
operates, except, in each case under subclauses (x) or (y), to the extent that
such occurrence, condition, change, event or effect has had a materially
disproportionate effect on the Company and the Subsidiaries, taken as a whole,
as compared to other Persons engaged in the industries which the Company
operates; (B) any change in the stock price of, or any change in the trading
volume of, the Company’s Common Stock on The New York Stock Exchange (provided
that the underlying cause for such changes may be taken into consideration to
the extent it is not otherwise excluded from the definition of “Material
Adverse Effect”); (C) the outbreak or escalation of hostilities involving the
United States, the declaration by the United States of war or the occurrence of
any natural disasters and acts of terrorism; (D) any occurrence, condition,
change, event or effect resulting from or relating to the announcement or
pendency of the transactions contemplated by the Transaction Documents or from
compliance by the Company and the Subsidiaries with the terms of any
Transaction Agreement; or (E) any change in GAAP, or in the interpretation
thereof, as imposed upon the Company, the Subsidiaries or their respective
businesses or any change in law, or in the interpretation thereof.  


          “Material Contract” means any contract of
the Company that was filed as an exhibit to the SEC Reports pursuant to Item
601of Regulation S-K. 


          “Material Permits” has the meaning set
forth in Section 3.1(p). 


          “Outside Date” means the thirtieth day
following the date of this Agreement; provided that if such day is not a
Business Day, the first day following such day that is a Business Day. 


          “Person” means an individual,
corporation,
partnership, limited liability company, trust, business trust, association,
joint stock company, joint venture, sole proprietorship, unincorporated
organization, governmental authority or any other form of entity not
specifically listed herein. 


          “Principal Trading Market” means the
Trading Market on which the Common Stock is primarily listed on and quoted for
trading, which, as of the date of this Agreement and the Closing Date, shall be
the New York Stock Exchange. 


          “Proceeding” means an action, claim,
suit,
investigation or proceeding (including, without limitation, an investigation or
partial proceeding, such as a deposition), whether commenced or threatened. 


          “Purchase Price” means $11.00 per Share.



          “Purchaser Deliverables” has the meaning
set forth in Section 2.2(b). 


          “Purchaser Party” has the meaning set
forth
in Section 4.9(a). 


          “Registration Rights Agreement” has the
meaning set forth in the Recitals. 


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          “Registration Statement” means a
registration statement meeting the requirements set forth in the Registration
Rights Agreement and covering the resale by the Purchasers of the Registrable
Securities (as defined in the Registration Rights Agreement). 


          “Required Approvals” has the meaning set
forth in Section 3.1(e). 


          “Rule 144” means Rule 144 promulgated by
the Commission pursuant to the Securities Act, as such Rule may be amended from
time to time, or any similar rule or regulation hereafter adopted by the
Commission having substantially the same effect as such Rule. 


          “Schedules” means the Schedules to this
Agreement, which, among other matters, list certain exceptions and other
information with respect to the representations and warranties in this
Agreement. 


          “SEC Reports” has the meaning set forth
in
Section 3.1(h). 


          “Secretary’s Certificate” has the
meaning
set forth in Section 2.2(a)(vi). 


          “Securities Act” means the Securities Act
of 1933, as amended. 


          “Short Sales” include, without
limitation,
all “short sales” as defined in Rule 200 promulgated under Regulation SHO under
the Exchange Act, whether or not against the box, and all types of direct and
indirect stock pledges, forward sale contracts, options, puts, calls, short
sales, swaps, “put equivalent positions” (as defined in Rule 16a-1(h) under the
Exchange Act) and similar arrangements (including on a total return basis), and
sales and other transactions through non-U.S. broker dealers or foreign
regulated brokers. 


          “Subscription Amount” means with respect
to
each Purchaser, the aggregate amount to be paid for the Shares purchased
hereunder as indicated on such Purchaser’s signature page to this Agreement
next to the heading “Aggregate Purchase Price (Subscription Amount)”. 


          “Subsidiary” means any entity in which
the
Company, directly or indirectly, owns more than 50% of the capital stock or
more than 50% of the equity or similar interest such that it is consolidated
with the Company in the financial statements of the Company. 


          “Trading Day” means (i) a day on which
the
Common Stock is listed or quoted and traded on its Principal Trading Market
(other than the OTC Bulletin Board), or (ii) if the Common Stock is not listed
on a Trading Market (other than the OTC Bulletin Board), a day on which the
Common Stock is traded in the over-the-counter market, as reported by the OTC
Bulletin Board, or (iii) if the Common Stock is not quoted on any Trading
Market, a day on which the Common Stock is quoted in the over-the-counter
market as reported in the “pink sheets” by Pink Sheets LLC (or any similar
organization or agency succeeding to its functions of reporting prices); provided , that in the event that the
Common Stock is not listed or quoted as set forth in (i), (ii) and (iii)
hereof, then Trading Day shall mean a Business Day. 


          “Trading Market” means whichever of the
New
York Stock Exchange, the NYSE Amex, the NASDAQ Global Select Market, the NASDAQ
Global Market, the NASDAQ Capital Market or the OTC Bulletin Board on which the
Common Stock is listed or quoted for trading on the date in question. 


          “Transaction Documents” means this
Agreement, the schedules and exhibits attached hereto, the Registration Rights
Agreement and any other documents or agreements executed in connection with the
transactions contemplated hereunder. 


          “Transfer” has the meaning set forth in
Section 4.1(a). 


          “Transfer Agent” means American Stock
Transfer & Trust Company, or any successor transfer agent for the Company. 



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ARTICLE II.

 PURCHASE AND SALE


          2.1
Closing.


               (a)
Amount. Subject to the terms and conditions set forth in this Agreement, at the
Closing the Company shall issue and sell to each Purchaser, and each Purchaser
shall, severally and not jointly, purchase from the Company, such number of
Shares set forth on the signature pages hereto under such Purchaser’s name, in
exchange for the payment by such Purchaser to the Company of the purchase price
set forth on the signature pages hereto under such Purchaser’s name.  


               (b)
Closing. The Closing of the purchase and sale of the Shares shall take
place at the offices of O’Melveny & Myers LLP, Times Square Tower, 7 Times
Square, New York, New York, on the Closing Date or at such other locations or
remotely by facsimile transmission or other electronic means as the parties may
mutually agree. 


               (c)
Form of Payment. Unless otherwise agreed to by the Company and a
Purchaser (as to itself only), on the Closing Date, (1) the Company shall
deliver to each Purchaser one or more stock certificates, evidencing the number
of Shares such Purchaser is purchasing as is set forth on such Purchaser’s
signature page to this Agreement next to the heading “Number of Shares to be
Acquired” and (2) each Purchaser shall wire its Subscription Amount, in United
States dollars and in immediately available funds, in accordance with the
Company’s written wire transfer instructions. 


          2.2
Closing Deliveries.


               (a)
On or prior to the Closing, the Company shall issue, deliver or cause to be
delivered to each Purchaser the following (the “Company Deliverables”): 


          (i)
this Agreement, duly executed by the Company; 


          (ii)
one or more stock certificates, evidencing the Shares subscribed for by
Purchaser hereunder, registered in the name of such Purchaser or as otherwise
set forth on the Stock Certificate Questionnaire included as Exhibit B-2 hereto
(the “Stock Certificates”);  


          (iii)
a legal opinion of Company Counsel and in-house counsel of the Company, dated
as of the Closing Date and in the form attached hereto as (and as divided
between such counsel in) Exhibit C, executed by such counsel and addressed to
the Purchasers;  


          (iv)
the Registration Rights Agreement, duly executed by the Company; 


          (v)
a certificate of the Secretary of the Company (the “Secretary’s Certificate”), dated as of the Closing Date, (a)
certifying the resolutions adopted by the Board of Directors of the Company or
a duly authorized committee thereof approving the transactions contemplated by
this Agreement and the other Transaction Documents and the issuance of the Shares,
(b) certifying the current versions of the certificate or articles of
incorporation, as amended, and by-laws of the Company and (c) certifying as to
the signatures and authority of persons signing the Transaction Documents and
related documents on behalf of the Company, in the form attached hereto as Exhibit
E;


5






          (vi)
the Compliance Certificate referred to in Section 5.1(g); 


          (vii)
a certificate evidencing the formation and good standing of the Company in its
jurisdiction of formation issued by the Secretary of State (or comparable
office) of such jurisdiction, as of a date within five (5) Business Days of the
Closing Date; and 


          (viii)
a certified copy of the Amended and Restated Articles of Incorporation, as
certified by the Secretary of State of the State (or comparable office) of such
entity’s jurisdiction of formation, as of a date within ten (10) Business Days
of the Closing Date. 


               (b)
On or prior to the Closing, each Purchaser shall deliver or cause to be
delivered to the Company the following (the “Purchaser
Deliverables”): 


          (i)
this Agreement, duly executed by such Purchaser; 


          (ii)
its Subscription Amount, in U.S. dollars and in immediately available funds, in
the amount set forth as the “Purchase Price” indicated below such Purchaser’s
name on the applicable signature page hereto under the heading “Aggregate
Purchase Price (Subscription Amount)” by wire transfer in accordance with the
Company’s written wire instructions; 


          (iii)
the Registration Rights Agreement, duly executed by such Purchaser; 


          (iv)
the Compliance Certificate referred to in Section 5.2(f); 


          (v)
a fully completed and duly executed Selling Stockholder Questionnaire,
reasonably satisfactory to the Company, in the form attached as Annex B to the
Registration Rights Agreement; and 


          (vi)
a fully completed and duly executed Accredited Investor Questionnaire,
reasonably satisfactory to the Company, and Stock Certificate Questionnaire in
the forms attached hereto as Exhibits B-1 and B-2 , respectively. 


ARTICLE III. 

REPRESENTATIONS AND WARRANTIES


          3.1
Representations and Warranties of the Company. The Company hereby
represents and warrants as of the date hereof and the Closing Date (except for
the representations and warranties that speak as of a specific date, which
shall be made as of such date), to each of the Purchasers that: 


               (a)
Subsidiaries. The Company has no direct or indirect Significant
Subsidiaries other than those listed in Schedule 3.1(a) hereto. Except as
disclosed in Schedule 3.1(a) hereto, the Company owns, directly or indirectly,
all of the capital stock or comparable equity interests of each Significant
Subsidiary free and clear of any and all Liens, and all the issued and
outstanding shares of capital stock or comparable equity interest of each
Significant Subsidiary are validly issued and are fully paid, non-assessable
and free of preemptive and similar rights to subscribe for or purchase securities. 



               (b)
 Organization and Qualification. The Company and each of its “Significant
Subsidiaries” (as defined in Rule 1-02 of Regulation S-X)(a “Significant
Subsidiary”) is an entity duly incorporated or otherwise organized, validly
existing and in good standing under the laws of the jurisdiction of its
incorporation or organization (as applicable), with the requisite power and
authority to own or lease and use its properties and assets and to carry on its
business as currently conducted. Neither the Company nor any Significant
Subsidiary is in violation in any material respect of any of the provisions of
its respective certificate or articles of incorporation, bylaws or other
organizational or charter documents. The Company and each of its Significant
Subsidiaries is duly qualified to conduct business and is in good standing as a
foreign corporation or other entity in each jurisdiction in which the nature of
the business conducted or property owned by it makes such qualification
necessary, except where the failure to be so qualified or in good standing, as
the case may be, would not in the reasonable judgment of the Company be
expected to have a Material Adverse Effect. The Company has conducted its
business in compliance with all applicable federal, state and foreign laws,
orders, judgments, decrees, rules, regulations and applicable stock exchange
requirements, except for any noncompliance that, individually or in the
aggregate, has not had and would not be reasonably expected to have a Material
Adverse Effect. 


6






               (c)
Authorization; Enforcement; Validity. The Company has the requisite
corporate power and authority to enter into and to consummate the transactions
contemplated by each of the Transaction Documents to which it is a party and
otherwise to carry out its obligations hereunder and thereunder. The Company’s
execution and delivery of each of the Transaction Documents to which it is a
party and the consummation by it of the transactions contemplated hereby and
thereby (including, but not limited to, the sale and delivery of the Shares)
have been duly authorized by all necessary corporate action on the part of the
Company, and no further corporate action is required by the Company, its Board
of Directors or its stockholders in connection therewith other than in
connection with the Required Approvals. Each of the Transaction Documents to
which it is a party has been (or upon delivery will have been) duly executed by
the Company and is, or when delivered in accordance with the terms hereof, will
constitute the legal, valid and binding obligation of the Company enforceable
against the Company in accordance with its terms, except (i) as such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium, liquidation or similar laws relating to, or
affecting generally the enforcement of, creditors’ rights and remedies or by
other equitable principles of general application, (ii) as limited by laws
relating to the availability of specific performance, injunctive relief or
other equitable remedies and (iii) insofar as indemnification and contribution
provisions may be limited by applicable law. Except for Material Contracts,
there are no stockholder agreements, voting agreements, or other similar arrangements
with respect to the voting of the Company’s capital stock to which the Company
is a party or, to the Company’s Knowledge, between or among any of the
Company’s stockholders. 


               (d)
 No Conflicts. The execution, delivery and performance by the Company of the
Transaction Documents to which it is a party and the consummation by the
Company of the transactions contemplated hereby or thereby (including, without
limitation, the issuance of the Shares) do not and will not (i) conflict with or
violate any provisions of the Company’s or any Significant Subsidiary’s
certificate or articles of incorporation, bylaws or otherwise result in a
violation of the organizational documents of the Company or any Significant
Subsidiary, (ii) conflict with, or constitute a default (or an event that with
notice or lapse of time or both would result in a default) under, result in the
creation of any Lien upon any of the properties or assets of the Company or
give to others any rights of termination, amendment, acceleration or
cancellation (with or without notice, lapse of time or both) of, any Material
Contract, or (iii) subject to the Required Approvals, conflict with or result
in a violation of any law, rule, regulation, order, judgment, injunction,
decree or other restriction of any court or governmental authority to which the
Company is subject (including federal and state securities laws and regulations
and the rules and regulations, assuming the correctness of the representations
and warranties made by the Purchasers herein, of any self-regulatory
organization to which the Company or its securities are subject, including all
applicable Trading Markets), or by which any property or asset of the Company
is bound, except in the case of clauses (ii) and (iii) such as would not have
or reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect. 


7






               (e)
Filings, Consents and Approvals. Neither the Company nor any of its
Subsidiaries is required to obtain any consent, waiver, authorization or order
of, give any notice to, or make any filing or registration with, any court or
other federal, state, local or other governmental authority or other Person
in  connection with the execution,
delivery and performance by the Company of the Transaction Documents
(including, without limitation, the issuance of the Shares), other than (i) the
filing with the Commission of one or more Registration Statements in accordance
with the requirements of the Registration Rights Agreement, (ii) filings
required by applicable state securities laws, (iii) the filing of a Notice of
Sale of Securities on Form D with the Commission under Regulation D of the
Securities Act, (iv) the filing of any requisite notices and/or application(s)
to the Principal Trading Market for the issuance and sale of the Common Stock
and the listing of the Common Stock for trading or quotation, as the case may
be, thereon in the time and manner required thereby, (v) the filings required
in accordance with Section 4.6 of this Agreement and (vi) those that have been
made or obtained prior to the date of this Agreement, in each case other than
where the failure to obtain such items would not have or reasonably be expected
to have, individually or in the aggregate, a Material Adverse Effect
(collectively, the “Required Approvals”).



               (f)
 Issuance of the Shares. The Shares have been duly authorized and, when
issued and paid for in accordance with the terms of the Transaction Documents,
will be duly and validly issued, fully paid and nonassessable and free and
clear of all Liens, other than restrictions on transfer provided for in the
Transaction Documents or imposed by applicable securities laws, and shall not
be subject to preemptive or similar rights. Assuming the accuracy of the
representations and warranties of the Purchasers in this Agreement, the Shares
will be issued in compliance with all applicable federal and state securities
laws. 


               (g)
Capitalization. The number of shares and type of all authorized, issued
and outstanding capital stock, options and other equity-linked securities of
the Company (whether or not presently convertible into or exercisable or
exchangeable for shares of capital stock of the Company) has been set forth in
the SEC Reports and has changed since the date of such SEC Reports only due to
stock grants or other equity awards or stock option and warrant exercises that
do not, individually or in the aggregate, have a material effect on the issued
and outstanding capital stock, options and other securities. All of the
outstanding shares of capital stock of the Company are duly authorized, validly
issued, fully paid and non-assessable, have been issued in compliance in all
material respects with all applicable federal and state securities laws, and
none of such outstanding shares was issued in violation of any preemptive
rights or similar rights to subscribe for or purchase any capital stock of the
Company. Except as disclosed in the SEC Reports (including the financial
statements therein) or in Schedule 3.1(g): (i) no shares of the
Company’s outstanding capital stock are subject to preemptive rights or any
other similar rights; (ii) there are no outstanding options, warrants, scrip,
rights to subscribe to, calls or commitments of any character whatsoever
relating to, or securities or rights convertible into, or exercisable or
exchangeable for, any shares of capital stock of the Company, or contracts,
commitments, understandings or arrangements by which the Company is or may
become bound to issue additional shares of capital stock of the Company or
options, warrants, scrip, rights to subscribe to, calls or commitments of any
character whatsoever relating to, or securities or rights convertible into, or
exercisable or exchangeable for, any shares of capital stock of the Company
(all of the foregoing, collectively, “Equity
Rights”), other than those issued or granted pursuant to Material
Contracts or equity or incentive plans or arrangements described in the SEC
Reports and/or any such Equity Rights as are de
minimis in amount; (iii) there are no material outstanding debt
securities of the Company or by which the Company is bound; (iv) except as
identified in Schedule 3.1(y) hereto and the Registration Rights
Agreement, there are no agreements or arrangements under which the Company is
obligated to register the sale of any of their securities under the Securities
Act; (v) there are no outstanding securities of the Company or which contain
any redemption or similar provisions, and there are no contracts, commitments,
understandings or arrangements by which the Company is or may become bound to
redeem a security of the Company; (vi) the Company does not have any stock
appreciation rights or “phantom stock” plans or agreements or any similar plan
or agreement; and (vii) the Company has no liabilities or obligations required
to be disclosed in the SEC Reports but not so disclosed in the SEC Reports,
other than those which, individually or in the aggregate, do not or would not
have or reasonably be expected to have a Material Adverse Effect. Except as set
forth on Schedule 3.1(g), there are no securities or instruments
containing anti-dilution or similar provisions that will be triggered by the
issuance of the Shares. 


8






               (h)
SEC Reports; Disclosure Materials. The Company has filed all reports,
schedules, forms, statements and other documents required to be filed by it
under the Exchange Act, including pursuant to Section 13(a) or 15(d) thereof,
for the twelve months preceding the date hereof (the foregoing materials,
including the exhibits thereto and documents incorporated by reference therein,
being collectively referred to herein as the “SEC
Reports” and together with this Agreement and the Schedules to this
Agreement, the “Disclosure Materials”),
on a timely basis or has received a valid extension of such time of filing and
has filed any such SEC Reports prior to the expiration of any such extension.
As of their respective filing dates, the SEC Reports complied in all material
respects with the requirements of the Securities Act and the Exchange Act and
the rules and regulations of the Commission promulgated thereunder, and none of
the SEC Reports, when filed, contained any untrue statement of a material fact
or omitted to state a material fact required to be stated therein or necessary
in order to make the statements therein, in light of the circumstances under
which they were made, not misleading. 


               (i)
Financial Statements. The financial statements of the Company included
in the SEC Reports complied in all material respects with applicable rules and
regulations of the Commission with respect thereto as in effect at the time of
filing. Such financial statements have been prepared in accordance with GAAP
applied on a consistent basis during the periods involved, except as may be
otherwise specified in such financial statements or the notes thereto and
except that unaudited financial statements may not contain all footnotes
required by GAAP, and fairly present in all material respects the balance sheet
of the Company and its consolidated subsidiaries taken as a whole as of and for
the dates thereof and the results of operations and cash flows for the periods
then ended, subject, in the case of unaudited statements, to normal, year-end
audit adjustments. 


               (j)
Tax Matters. The Company (i) has prepared and filed all foreign, federal
and state income and all other tax returns, reports and declarations required
by any jurisdiction to which it is subject, (ii) has paid all taxes and other
governmental assessments and charges that are material in amount, shown or
determined to be due on such returns, reports and declarations, except those
being contested in good faith, with respect to which adequate reserves have been
set aside on the books of the Company and (iii) has set aside on its books
provisions reasonably adequate for the payment of all taxes for periods
subsequent to the periods to which such returns, reports or declarations apply,
except, in the case of clauses (i) through (iii) above, where the failure to so
pay or file any such tax, assessment, charge or return or to so set aside would
not have or reasonably be expected to have a Material Adverse Effect. 


               (k)
Material Changes. Since the date of the latest audited financial statements
included within the SEC Reports, except as disclosed in subsequent SEC Reports
filed prior to the date hereof or on Schedule 3.1(k), (i) there have been no
events, occurrences or developments that have had or would reasonably be
expected to have, either individually or in the aggregate, a Material Adverse
Effect, (ii) the Company has not incurred any liabilities (contingent or
otherwise) other than (A) trade payables, accrued expenses and other
liabilities incurred in the ordinary course of business consistent with past
practice, (B) liabilities not required to be reflected in the Company’s
financial statements pursuant to GAAP or required to be disclosed in filings
made with the Commission and (C) such liabilities as would not reasonably be
expected to have, individually or in the aggregate, a Material Adverse Effect,
(iii) the Company has not altered materially its method of accounting or the
manner in which it keeps its accounting books and records, (iv) the Company has
not declared or made any dividend or distribution of cash or other property to
its stockholders or purchased, redeemed or made any agreements to purchase or
redeem any shares of its capital stock (other than in connection with
repurchases of unvested stock issued to employees of the Company), and (v) the
Company has not issued any equity securities to any officer, director or
Affiliate, except Common Stock issued pursuant to existing Company stock option
or stock purchase plans or executive and director corporate arrangements
disclosed in the SEC Reports. Except as disclosed on Schedule 3.1(k) and except
for the transactions contemplated by this Agreement, no event, liability or
development has occurred or exists with respect to the Company or its Subsidiaries
or their respective business, properties, operations or financial condition
that would be required to be disclosed by the Company under applicable U.S.
federal securities laws at the time this representation is made that has not
been publicly disclosed at least one Trading Day prior to the date that this
representation is made.  


9






               (l)
Environmental Matters. Neither the Company nor any of its Subsidiaries
(i) is in violation of any statute, rule, regulation, decision or order of any
governmental agency or body or any court, domestic or foreign, relating to the
use, disposal or release of hazardous or toxic substances or relating to the
protection or restoration of the environment or human exposure to hazardous or
toxic substances (collectively, “Environmental
Laws”), (ii) owns or operates any real property contaminated with
any substance that is in violation of any Environmental Laws, (iii) is liable
for any off-site disposal or contamination pursuant to any Environmental Laws,
or (iv) is subject to any claim relating to any Environmental Laws; in each
case, which violation, contamination, liability or claim has had or would
reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect; and, to the Company’s Knowledge, there is no pending or
threatened investigation that might lead to such a claim. 


               (m)
Litigation. There is no Action which (i) adversely affects or challenges
the legality, validity or enforceability of any of the Transaction Documents
(as to the Company) or the Shares, or (ii) except as disclosed in the SEC
Reports, is reasonably likely to have a Material Adverse Effect, individually
or in the aggregate, if there were an unfavorable decision. Neither the Company
nor any Subsidiary, nor to the Company’s Knowledge any director or officer
thereof, is the subject of any Action involving a claim of violation of or
liability under federal or state securities laws or a claim of breach of
fiduciary duty. There has not been in the last 24 months, and to the Company’s
Knowledge there is not pending or contemplated, any investigation by the
Commission involving the Company or any current or former director or officer
of the Company in their capacity as such or involving any of the Knowledge
Persons. To the Company’s Knowledge, the Commission has not issued any stop
order or other order suspending the effectiveness of any registration statement
filed by the Company or any of its Subsidiaries under the Exchange Act or the
Securities Act. 


               (n)
Employment Matters. No material labor dispute exists or, to the
Company’s Knowledge, is imminent with respect to any of the employees of the
Company which would have or reasonably be expected to have a Material Adverse
Effect. To the Company’s Knowledge, no executive officer is, in violation of
any material term of any employment contract, confidentiality, disclosure or
proprietary information agreement or non-competition agreement or
non-solicitation covenant in favor of a third party, and to the Company’s
Knowledge, the continued employment of each such executive officer does not
subject the Company or any Subsidiary to any liability with respect to any of
the foregoing matters. 


               (o)
Compliance. Neither the Company nor any of its Subsidiaries (i) is in
default under or in violation of (and no event has occurred that has not been
waived that, with notice or lapse of time or both, would result in a default by
the Company or any of its Subsidiaries under), nor has the Company or any of
its Subsidiaries received written notice of a claim that it is in default under
or that it is in violation of, any Material Contract (whether or not such
default or violation has been waived), (ii) is in violation of any order of
which the Company or any of its Subsidiaries has been made aware in writing of
any court, arbitrator or governmental body having jurisdiction over the Company
or any of its Subsidiaries or their respective properties or assets, or (iii)
is in violation of, or in receipt of written notice that it is in violation of,
any statute, rule or regulation of any governmental authority applicable to the
Company or any of its Subsidiaries, except in each case as would not have or
reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect. 


10






               (p)
Regulatory Permits. The Company and each of its Subsidiaries possess or
have applied for all certificates, authorizations and permits issued by the
appropriate federal, state, local or foreign regulatory authorities necessary
to conduct their respective businesses as currently conducted and as described
in the SEC Reports, except where the failure to possess such permits,
individually or in the aggregate, has not and would not reasonably be expected
to have, individually or in the aggregate, a Material Adverse Effect (“Material Permits”), and (i) neither the
Company nor, to the Company’s Knowledge, any of its Subsidiaries has received
in the last 24 months any notice in writing of proceedings relating to the
revocation or material adverse modification of any such Material Permits, nor
are any proceedings relating to the revocation or material adverse modification
of any such Material Permits pending as of the date hereof and (ii) the Company
has no Knowledge of any facts or circumstances that would give rise to the
revocation or material adverse modification of any Material Permits. 


               (q)
Title to Assets. Except as set forth in the SEC Reports, (i) the Company
and its Subsidiaries have good and marketable title to all real property and
tangible personal property owned by them which is material to the business of
the Company and its Subsidiaries, taken as a whole, in each case free and clear
of all Liens except such as do not materially affect the value of such property
or do not interfere with the use made and proposed to be made of such property
by the Company and any of its Subsidiaries and (ii) any real property and
facilities held under lease by the Company and any of its Subsidiaries are held
by them under valid, subsisting and enforceable leases with such exceptions as
are not material to the Company and its Subsidiaries taken as a whole and do
not interfere with the use made and proposed to be made of such property and
buildings by the Company and its Subsidiaries. 


               (r)
Patents and Trademarks. The Company and its Subsidiaries own, possess,
license or have other rights to use all foreign and domestic patents, patent
applications, trade and service marks, trade and service mark registrations,
trade names, copyrights, inventions, trade secrets, technology, Internet domain
names, know-how and other intellectual property (collectively, the “Intellectual Property”) necessary for the
conduct of their respective businesses as now conducted or as proposed to be
conducted in the SEC Reports except where the failure to own, possess, license
or have such rights would not have or reasonably be expected to have a Material
Adverse Effect. Except as set forth in the SEC Reports or on Schedule 3.1(r)
and except where such violations or infringements would not have or reasonably
be expected to have, either individually or in the aggregate, a Material
Adverse Effect, (a) there are no rights of third parties to any such
Intellectual Property; and (b) to the Company’s Knowledge, there is no
infringement by third parties of any such Intellectual Property. 


               (s)
Insurance. The Company and each of the Subsidiaries are insured by
insurers that the Company believes are financially responsible against such
losses and risks and in such amounts as the Company believes to be prudent and
customary in the businesses and locations in which the Company and the
Subsidiaries are engaged. To the Company’s Knowledge, neither the Company nor
any of its Subsidiaries has received any notice of cancellation of any such
insurance, nor, to the Company’s Knowledge, will it or any Subsidiary be unable
to renew their respective existing insurance coverage as and when such coverage
expires or to obtain similar coverage from similar insurers as may be necessary
to continue its business at a cost that would not have a Material Adverse
Effect. 


               (t)
Transactions With Affiliates and Employees. Except as set forth in the
SEC Reports or on Schedule 3.1(t) and other than the grant of stock options or
other equity awards that are not individually or in the aggregate material in
amount, none of the officers or directors of the Company and, to the Company’s
Knowledge, none of the employees of the Company, is presently a party to any
transaction with the Company or to a presently contemplated transaction
involving a Knowledge Person or to a presently contemplated transaction that
would occur within 30 days after the Closing involving any other officer or director
of the Company (other than for services as employees, officers and directors)
that would be required to be disclosed pursuant to Item 404 of Regulation S-K
promulgated under the Securities Act.  


11






               (u)
Internal Accounting Controls. The Company maintains internal control
over financial reporting (as such term is defined in Rule 13a-15(f) under the
Exchange Act) designed to provide reasonable assurance regarding the
reliability of financial reporting and the preparation of financial statements
for external purposes in accordance with generally accepted accounting
principles. Under the supervision of and with the participation of the
Company’s management, including its Chief Executive Officer and Chief Financial
Officer, the Company conducted an evaluation of its internal control over
financial reporting as of December 31, 2008, based on the framework set forth
by the Committee of Sponsoring Organizations of the Treadway Commission (COSO)
in Internal Control – Integrated Framework.
Based on that evaluation, the Company’s management concluded that, as of
December 31, 2008, internal control over financial reporting is effective based
on criteria established in Internal Control
– Integrated Framework issued by the COSO. 


               (v)
Disclosure Controls. The Company maintains disclosure controls and
procedures (as such term is defined in Rule 13a-15(e) and 15d-15(e) under the
Exchange Act). The Company’s management, under the supervision of and with the
participation of its Chief Executive Officer and Chief Financial Officer, has
evaluated the effectiveness of the Company’s disclosure controls and procedures
as of the end of the period covered by the Company’s Annual Report on Form 10-K
for the fiscal year ended December 31, 2008. Based on such evaluation, the
Company’s Chief Executive Officer and Chief Financial Officer have concluded
that, as of the end of such period, the Company’s disclosure controls and
procedures are effective. 


               (w)
Certain Fees. No person or entity will be entitled, as a result of the
transactions contemplated by this Agreement, to any commission, or broker’s or
other similar fee pursuant to any agreement, arrangement or understanding
entered into by or on behalf of the Company. 


               (x)
Private Placement. Assuming the accuracy of the Purchasers’
representations and warranties set forth in Section 3.2 of this Agreement and
the accuracy of the information disclosed in the Accredited Investor
Questionnaires, no registration under the Securities Act is required for the
offer and sale of the Shares by the Company to the Purchasers under the
Transaction Documents. Assuming the accuracy of the Purchasers’ representations
and warranties set forth in Section 3.2 of this Agreement and the representations
and warranties set forth in that certain side letter, dated as of the date
hereof (and in the update to that certain side letter, to be delivered at the
Closing), the issuance and sale of the Shares hereunder does not contravene the
rules and regulations of the Principal Trading Market. 


               (y)
Registration Rights. Other than as set forth in the SEC Reports and
other than each of the Purchasers or as set forth in Schedule 3.1(y)
hereto, no Person has any right to cause the Company to effect the registration
under the Securities Act of any securities of the Company other than those
securities which are currently registered on an effective registration
statement on file with the Commission. 


               (z)
No Integrated Offering. Assuming the accuracy of the Purchasers’
representations and warranties set forth in Section 3.2, none of the Company,
its Subsidiaries nor, to the Company’s Knowledge, any of its Affiliates has,
directly or indirectly, at any time within the past six months, made any offers
or sales of any Company security or solicited any offers to buy any security
under circumstances that would (i) eliminate the availability of the exemption
from registration under Regulation D under the Securities Act in connection
with the offer and sale by the Company of the Shares as contemplated hereby or
(ii) cause the offering of the Shares pursuant to the Transaction Documents to
be integrated with prior offerings by the Company for purposes of any
applicable law, regulation or stockholder approval provisions, including,
without limitation, under the rules and regulations of any Trading Market on
which any of the securities of the Company are listed or designated. 


12






               (aa)
Listing and Maintenance Requirements. The Company’s Common Stock is
registered pursuant to Section 12(b) of the Exchange Act, and the Company has
taken no action designed to terminate the registration of the Common Stock
under the Exchange Act nor has the Company received any  notification that the Commission is
contemplating terminating such registration. The Company has not, in the 12
months preceding the date hereof, received written notice from any Trading
Market on which the Common Stock is listed or quoted to the effect that the
Company is not in compliance with the listing or maintenance requirements of
such Trading Market. The Company is in compliance in all material respects with
the listing and maintenance requirements for continued trading of the Common
Stock on the New York Stock Exchange and has no Knowledge of any facts or
circumstances which would reasonably be expected to lead to the NYSE delisting
or suspending the Common Stock from listing or trading on the New York Stock
Exchange due to violations by the Company of the rules or regulations of the
NYSE in the foreseeable future. 


               (bb)
Investment Company. Neither the Company nor any of its Subsidiaries is
required to be registered as, and is not an Affiliate of, and immediately
following the Closing will not be required to register as, an “investment
company” within the meaning of the Investment Company Act of 1940, as amended. 


               (cc)
Questionable Payments. Neither the Company nor any of its Subsidiaries,
nor any directors, officers, nor to the Company’s Knowledge, employees, agents
or other Persons acting at the direction of or on behalf of the Company or any
of its Subsidiaries has, in the course of its actions for, or on behalf of, the
Company: (a) directly or indirectly, used any corporate funds for unlawful contributions,
gifts, entertainment or other unlawful expenses relating to foreign or domestic
political activity; (b) made any direct or indirect unlawful payments to any
foreign or domestic governmental officials or employees or to any foreign or
domestic political parties or campaigns from corporate funds; (c) violated any
provision of the Foreign Corrupt Practices Act of 1977, as amended, or (d) made
any other unlawful bribe, rebate, payoff, influence payment, kickback or other
material unlawful payment to any foreign or domestic government official or
employee. 


               (dd)
Application of Takeover Protections; Rights Agreements. The Company has
not adopted any stockholder rights plan or similar arrangement relating to
accumulations of beneficial ownership of Common Stock or a change in control of
the Company. The Company is not subject to Section 607.0901 or Section 607.0902
of the Florida Business Corporation Act. 


               (ee)
Off Balance Sheet Arrangements. Except as disclosed on Schedule 3.1(ee),
there is no transaction, arrangement, or other relationship between the Company
(or any Subsidiary) and an unconsolidated or other off balance sheet entity
that is required to be disclosed by the Company in its Exchange Act filings and
is not so disclosed and would have or reasonably be expected to have a Material
Adverse Effect.  


               (ff)
Acknowledgment Regarding Purchasers’ Purchase of Shares. The Company
acknowledges and agrees that each of the Purchasers is acting solely in the
capacity of an arm’s length purchaser with respect to the Transaction Documents
and the transactions contemplated hereby and thereby. The Company further
acknowledges that no Purchaser is acting as a financial advisor or fiduciary of
the Company (or in any similar capacity) with respect to the Transaction
Documents and the transactions contemplated thereby and any advice given by any
Purchaser or any of their respective representatives or agents in connection
with the Transaction Documents and the transactions contemplated thereby is
merely incidental to the Purchasers’ purchase of the Shares. 


               (gg)
Certain Matters. In the last thirty days to the date hereof, the Company
has not, and to the Company’s Knowledge no one acting on its behalf has, (i)
taken, directly or indirectly, any action designed to cause or to result in the
stabilization or manipulation of the price of any security of the Company to
facilitate the sale or resale of any of the Shares, (ii) sold, bid for,
purchased, or paid any compensation for soliciting purchases of, any of the
securities of the Company or (iii) paid or agreed to pay to any Person any
compensation for soliciting another to purchase any other securities of the
Company, other than in each of clauses (i), (ii) and (iii), (A) activities by
stock specialists or market makers in respect of the Common Stock not done at
the specific direction of the Company, (B) purchases of convertible debt
securities of the Company or (C) other ordinary course trading activities on
the Principal Trading Market. 


13






               (hh)
No Additional Agreements. The Company does not have any agreement with
any Purchaser with respect to the transactions contemplated by the Transaction
Documents other than as specified in the Transaction Documents. 


               (ii)
No General Solicitation or General Advertising. Neither the Company nor
any person acting on its behalf has engaged in any form of general solicitation
or general advertising (within the meaning of Regulation D under the Securities
Act) in connection with any offer or sale of the Shares. 


               (jj)
Shell Company Status. The Company is not, and has never been, an issuer
identified in Rule 144(i)(1). 


               (kk)
Registration Eligibility. The Company is eligible to register the resale
of the Shares by the Purchasers using Form S-3 promulgated under the Securities
Act 


          3.2
Representations and Warranties of the Purchasers. Each Purchaser hereby,
for itself and for no other Purchaser, represents and warrants as of the date
hereof and as of the Closing Date to the Company as follows: 


               (a)
Organization; Authority. It is duly organized, validly existing and in
good standing under the laws of the jurisdiction of its organization with the
requisite corporate or partnership power and authority to enter into and to
consummate the transactions contemplated by the applicable Transaction
Documents and otherwise to carry out its obligations hereunder and thereunder.
The execution, delivery and performance by such Purchaser of the transactions
contemplated by this Agreement have been duly authorized by all necessary
corporate or, if such Purchaser is not a corporation, such partnership, limited
liability company or other applicable like action, on the part of such
Purchaser. Each of this Agreement and the Registration Rights Agreement has
been duly executed by such Purchaser, and when delivered by such Purchaser in
accordance with the terms hereof, will constitute the valid and legally binding
obligation of such Purchaser, enforceable against it in accordance with its
terms, except as such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium, liquidation or similar laws relating
to, or affecting generally the enforcement of, creditors’ rights and remedies
or by other equitable principles of general application. 


               (b)
No Conflicts. The execution, delivery and performance by such Purchaser
of this Agreement and the Registration Rights Agreement and the consummation by
such Purchaser of the transactions contemplated hereby and thereby will not (i)
result in a violation of the organizational documents of such Purchaser (if
such Purchaser is an entity), (ii) conflict with, or constitute a default (or
an event which with notice or lapse of time or both would become a default)
under, or give to others any rights of termination, amendment, acceleration or
cancellation of, any agreement, indenture or instrument to which such Purchaser
is a party, or (iii) result in a violation of any law, rule, regulation, order,
judgment or decree (including federal and state securities laws) applicable to
such Purchaser, except in the case of clauses (ii) and (iii) above, for such
conflicts, defaults, rights or violations which would not, individually or in
the aggregate, reasonably be expected to have a material adverse effect on the
ability of such Purchaser to perform its obligations hereunder. 


14






               (c)
Investment Intent. Such Purchaser understands that the Shares are
“restricted securities” and have not been registered under the Securities Act
or any applicable state securities law and is acquiring the Shares as principal
for its own account and not with a view to, or for distributing or reselling  such Shares or any part thereof in violation
of the Securities Act or any applicable state securities laws, provided, however, that by making the
representations herein, such Purchaser does not agree to hold any of the Shares
beyond the period of time provided in this Agreement and reserves the right,
subject to the provisions of this Agreement and the Registration Rights
Agreement, after the period of time provided in this Agreement to sell or
otherwise dispose of all or any part of such Shares pursuant to an effective
registration statement under the Securities Act or under an exemption from such
registration and in compliance with applicable federal and state securities
laws. Such Purchaser is acquiring the Shares hereunder in the ordinary course
of its business. Such Purchaser does not presently have any agreement, plan or
understanding, directly or indirectly, with any Person to distribute or effect
any distribution of any of the Shares (or any securities which are derivatives
thereof) to or through any person or entity. 


               (d)
Purchaser Status. At the time such Purchaser was offered the Shares, it
was, at the date hereof it is, and on and as of the Closing Date it will be, an
“accredited investor” as defined in Rule 501(a) under the Securities Act. Such
Purchaser is not a registered broker dealer registered under Section 15(a) of
the Exchange Act, or a member of FINRA or an entity engaged in the business of
being a broker dealer. Such Purchaser is not affiliated with any broker dealer
registered under Section 15(a) of the Exchange Act, or a member of FINRA or an
entity engaged in the business of being a broker dealer. 


               (e)
General Solicitation. Such Purchaser is not purchasing the Shares as a
result of any advertisement, article, notice or other communication regarding
the Shares published in any newspaper, magazine or similar media or broadcast
over television or radio or presented at any seminar or any other general
advertisement. 


               (f)
Experience of Such Purchaser. Such Purchaser, either alone or together
with its representatives, has such knowledge, sophistication and experience in
business and financial matters so as to be capable of evaluating the merits and
risks of the prospective investment in the Shares, and has so evaluated the
merits and risks of such investment. Such Purchaser is able to bear the
economic risk of an investment in the Shares and, at the present time is and at
the Closing Date will be, able to afford a complete loss of such investment. 


               (g)
Access to Information. Such Purchaser acknowledges that it has had the
opportunity to review the Disclosure Materials and has been afforded (i) the
opportunity to ask such questions as it has deemed necessary of, and to receive
answers from, representatives of the Company concerning the terms and
conditions of the offering of the Shares and the merits and risks of investing
in the Shares; (ii) access to information about the Company and the
Subsidiaries and their respective financial condition, results of operations,
business, properties, management and prospects sufficient to enable it to
evaluate its investment; and (iii) the opportunity to obtain such additional
information that the Company possesses or can acquire without unreasonable
effort or expense that is necessary to make an informed investment decision
with respect to the investment. Such Purchaser has sought such accounting,
legal and tax advice as it has considered necessary to make an informed
decision with respect to its acquisition of the Shares. 


               (h)
Brokers and Finders. No Person will have, as a result of the
transactions contemplated by this Agreement, any valid right, interest or claim
against or upon the Company or any Purchaser for any commission, fee or other
compensation pursuant to any agreement, arrangement or understanding entered
into by or on behalf of the Purchaser. 


               (i)
Independent Investment Decision. Such Purchaser has independently
evaluated the merits of its decision to purchase Shares pursuant to the
Transaction Documents, and such Purchaser confirms that it has not relied on
the advice of any other Purchaser’s or the Company’s business and/or legal
counsel in making such decision. Such Purchaser understands that nothing in
this Agreement or any other materials presented by or on behalf of the Company
to the Purchaser in connection with the purchase of the Shares constitutes
legal, tax or investment advice. Such Purchaser has consulted such legal, tax
and investment advisors as it, in its sole discretion, has deemed necessary or
appropriate in connection with its purchase of the Shares. 


15






               (j)
Reliance on Exemptions. Such Purchaser understands that the Shares being
offered and sold to it in reliance on specific exemptions from the registration
requirements of U.S. federal and state securities laws and that the Company is
relying in part upon the truth and accuracy of, and such Purchaser’s compliance
with, the representations, warranties, agreements, acknowledgements and
understandings of such Purchaser set forth herein in order to determine the
availability of such exemptions and the eligibility of such Purchaser to
acquire the Shares. 


               (k)
No Governmental Review. Such Purchaser understands that no U.S. federal
or state agency or any other government or governmental agency has passed on or
made any recommendation or endorsement of the Shares or the fairness or
suitability of the investment in the Shares nor have such authorities passed
upon or endorsed the merits of the offering of the Shares. 


               (l)
Residency. Such Purchaser’s residence (if an individual) or office in
which its investment decision with respect to the Shares was made (if an
entity) are located at the address immediately below such Purchaser’s name on
its signature page hereto. 


               (m)
Litigation. There is no Action that (i) adversely affects or challenges
the legality, validity or enforceability of any of the Transaction Documents
(as to such Purchaser), or (ii) is reasonably likely to have a material and
adverse effect, individually or in the aggregate, on the ability of such
Purchaser to consummate the transactions contemplated by the Transaction
Documents. 


               (n)
Ownership of Common Stock. Except as set forth on Schedule 3.2(n), no
Purchaser beneficially owns (as such term is defined in Rule 13d-3 under the
Exchange Act) any Common Stock or is the record owner of any Common Stock, or
any derivatives based on Common Stock, or any securities convertible into or
exchangeable for Common Stock. Since March 6, 2009, such Purchaser has not, and
to such Purchaser’s knowledge, no one acting on its behalf has, directly or
indirectly engaged in Short Sales with respect to the Common Stock. 


               (o)
No Additional Agreements. Such Purchaser does not have any agreement
with the Company or any other Purchaser with respect to the transactions
contemplated by the Transaction Documents other than as specified in the
Transaction Documents. 


               (p)
Financial Capability. Each Purchaser currently has and will have at the
Closing Date sufficient available funds to pay its respective Purchase Price as
contemplated by Section 2.2(b)(ii). 


               The
Company and each of the Purchasers acknowledge and agree that no party to this
Agreement has made or makes any representations or warranties with respect to
the transactions contemplated hereby other than those specifically set forth in
this Article III and the Transaction Documents. 


16






ARTICLE IV.

OTHER AGREEMENTS OF THE PARTIES


          4.1
Transfer Restrictions. 


               (a)
Certain Trading Limitations. Each Purchaser covenants that for the period
commencing on the date hereof and ending on the date that is twelve (12) months
after the Closing Date, it will not sell or transfer (or enter into any Short
Sale, pledge, hedging, derivative or other transaction that is designed to
result in substantially the same economic effect as a sale, including, for this
purpose, with respect to Common Stock Equivalents) (“Transfer”) any of the Shares; provided, however,
that the foregoing shall not prohibit the following actions by each such
Purchaser: (i) Transfers to an Affiliate or a Person that shares a common
investment adviser, provided that such Affiliate or Person, as applicable,
agrees pursuant to a Joinder Agreement to be subject to the restrictions set
forth in this Section 4.1 and Section 4.10; and (ii) Transfers pursuant to a
merger, tender offer or exchange offer or other business combination,
acquisition of assets or similar transaction or change of control transaction
involving the Company or any of its Significant Subsidiaries that is approved
by the Board of Directors of the Company.  


               (b)
Compliance with Laws. Notwithstanding any other provision of this
Article IV (but, for the avoidance of doubt, subject to Section 4.1(a) above),
each Purchaser covenants that the Shares may be disposed of only pursuant to an
effective registration statement under, and in compliance with the requirements
of, the Securities Act, or pursuant to an available exemption from, or in a
transaction not subject to, the registration requirements of the Securities
Act, and in compliance with any applicable state, federal or foreign securities
laws. In connection with any transfer of the Shares other than (i) pursuant to
an effective registration statement, (ii) to the Company or (iii) pursuant to
Rule 144 (provided that the transferor provides the Company with reasonable
assurances (in the form of seller and broker representation letters) that the
securities may be sold pursuant to such rule) (any transfer described in
clauses (i), (ii) or (iii), an “Exempt
Transfer”), the Company may require the transferor thereof to
provide to the Company and the Transfer Agent, at the transferor’s expense, an
opinion of counsel selected by the transferor and reasonably acceptable to the
Company and the Transfer Agent, the form and substance of which opinion shall
be reasonably satisfactory to the Company and the Transfer Agent, to the effect
that such transfer does not require registration of such transferred Shares
under the Securities Act. As a condition of a transfer of Shares (other than an
Exempt Transfer), any such transferee shall agree in a written instrument in
form and substance reasonably acceptable to the Company to be bound as a
“Purchaser” by Section 4.1 and Section 4.10 of this Agreement (such agreement
in writing, a “Joinder Agreement”),
which Joinder Agreement shall also provide that any transferee of 7.5% or more
of the aggregate amount of Shares sold by the Company pursuant to this
Agreement shall have the rights and obligations of a “Purchaser” under the
Registration Rights Agreement with respect to such transferred Shares. For the
avoidance of doubt, any transferee of Shares in an Exempt Transfer and any
transferee of less than 7.5% of the aggregate amount of Shares sold by the
Company pursuant to this Agreement, shall not receive any rights under the
Registration Rights Agreement.  


               (c)
Legends. Certificates evidencing the Shares shall bear any legend as
required by the “blue sky” laws of any state and a restrictive legend in
substantially the following form, until such time as they are not required
under Section 4.1(b) or applicable law: 


THESE
SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE “SECURITIES ACT”), OR APPLICABLE STATE SECURITIES LAWS. THE
SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED OR ASSIGNED (I) IN
THE ABSENCE OF (A) AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER
THE SECURITIES ACT OR (B) AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT
SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN
ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS OR BLUE SKY LAWS AS EVIDENCED
BY A LEGAL OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE COMPANY AND ITS
TRANSFER AGENT OR (II) UNLESS SOLD PURSUANT TO RULE 144 UNDER SAID ACT
(PROVIDED THAT THE TRANSFEROR PROVIDES THE COMPANY WITH REASONABLE ASSURANCES
(IN THE FORM OF SELLER AND BROKER REPRESENTATION LETTERS) THAT THE SECURITIES
MAY BE SOLD PURSUANT TO SUCH RULE). NO REPRESENTATION IS MADE BY THE ISSUER AS
TO THE AVAILABILITY OF THE EXEMPTION PROVIDED BY RULE 144 UNDER THE SECURITIES
ACT FOR RESALES OF THESE SECURITIES.


17






               (d)
Removal of Legends. The restrictive legend set forth in Section 4.1(c)
above shall be removed and the Company shall issue a certificate without such
restrictive legend or any other restrictive legend to the holder of the
applicable Shares upon which it is stamped or issue to such holder by
electronic delivery at the applicable balance account at the Depository Trust
Company (“DTC”), if (i) such
Shares are registered for resale under the Securities Act (provided that, if
the Purchaser is selling pursuant to the effective registration statement
registering the Shares for resale, the Purchaser agrees to only sell such
Shares during such time that such registration statement is effective and such
Purchaser is not aware or has not been notified by the Company that such
registration statement has been withdrawn or suspended, and only as permitted
by such registration statement), (ii) such Shares are sold or transferred
pursuant to Rule 144 (if the transferor is not an Affiliate of the Company), or
(iii) such Shares are eligible for sale under Rule 144, without the requirement
for the Company to be in compliance with the current public information
required under Rule 144 as to such securities and without volume or manner-of-sale
restrictions. Following the earlier of (i) the Effective Date or (ii) Rule 144
becoming available for the resale of Shares, without the requirement for the
Company to be in compliance with the current public information required under
Rule 144 as to the Shares and without volume or manner-of-sale restrictions,
the Company shall instruct the Transfer Agent to remove the legends from the
Shares and shall cause its counsel to issue any legend removal opinion required
by the Transfer Agent. Any fees (with respect to the Transfer Agent or
otherwise) associated with the issuance of such opinion or the removal of such
legend shall be borne by the Company. Following the Effective Date, or at such
earlier time as a restrictive legend is no longer required for certain Shares,
the Company will use its reasonable best efforts to, no later than three (3)
Trading Days following the delivery by a Purchaser to the Company or the
Transfer Agent (with notice to the Company) of a legended certificate
representing such Shares (endorsed or with stock powers attached, signatures
guaranteed, and otherwise in form necessary to affect the reissuance and/or
transfer) and an opinion of counsel to the extent required by Section 4.1(a),
(such third Trading Day, the “Legend Removal
Date”), deliver or cause to be delivered to such Purchaser a
certificate representing such Shares that is free from all restrictive legends.
The Company may not make any notation on its records or give instructions to
the Transfer Agent that enlarge the restrictions on transfer set forth in
Section 4.1(b) or this Section 4.1(d). Certificates for Shares free from all
restrictive legends may be transmitted by the Transfer Agent to the Purchasers
by crediting the account of the Purchaser’s prime broker with DTC as directed
by such Purchaser. 


               (e)
Acknowledgement. Each Purchaser hereunder acknowledges its primary
responsibilities under the Securities Act and accordingly will not sell or
otherwise transfer the Shares or any interest therein without complying with
the requirements of the Securities Act. Except as otherwise provided below,
while the above-referenced registration statement remains effective, each
Purchaser hereunder may sell the Shares in accordance with the plan of
distribution contained in the registration statement and if it does so it will
comply therewith and with the related prospectus delivery requirements unless
an exemption therefrom is available. Each Purchaser, severally and not jointly
with the other Purchasers, agrees that if it is notified by the Company in
writing at any time that the registration statement registering the resale of
the Shares is not effective or that the prospectus included in such
registration statement no longer complies with the requirements of Section 10
of the Securities Act, the Purchaser will refrain from selling such Shares
until such time as the Purchaser is notified by the Company that such
registration statement is effective or such prospectus is compliant with
Section 10 of the Exchange Act, unless such Purchaser is able to, and does,
sell such Shares pursuant to an available exemption from the registration
requirements of Section 5 of the Securities Act. Both the Company and its
Transfer Agent, and their respective directors, officers, employees and agents,
may rely on this subsection (e) and each Purchaser hereunder will indemnify and
hold harmless each of such persons from any breaches or violations of this
paragraph.


18






          4.2
Acknowledgment of Dilution. The Company acknowledges that the issuance
of the Shares may result in dilution of the outstanding shares of Common Stock.



          4.3
Furnishing of Information. In order to enable the Purchasers to sell the
Shares under Rule 144 of the Securities Act, for a period of one year from the
Closing, the Company shall use commercially reasonable efforts to timely file
(or obtain extensions in respect thereof and file within the applicable grace
period) all reports required to be filed by the Company after the date hereof
pursuant to the Exchange Act. During such one year period, if the Company is
not required to file reports pursuant to such laws, it will prepare and furnish
to the Purchasers and make publicly available the information described in Rule
144(c)(2), if the provision of such information will allow resales of the
Shares pursuant to Rule 144. 


          4.4
Form D and Blue Sky. The Company agrees to timely file a Form D with
respect to the Shares as required under Regulation D. The Company, on or before
the Closing Date, shall take such action as the Company shall reasonably
determine is necessary in order to obtain an exemption for or to qualify the
Shares for sale to the Purchasers at the Closing pursuant to this Agreement
under applicable securities or “Blue Sky” laws of the states of the United
States (or to obtain an exemption from such qualification). The Company shall
make all filings and reports relating to the offer and sale of the Shares
required under applicable securities or “Blue Sky” laws of the states of the
United States following the Closing Date. 


          4.5
No Integration; No Distribution. The Company shall not, and shall use
its commercially reasonable efforts to ensure that no Affiliate of the Company
shall, sell, offer for sale or solicit offers to buy or otherwise negotiate in
respect of any security (as defined in Section 2 of the Securities Act) that
will be integrated with the offer or sale of the Shares in a manner that would
require the registration under the Securities Act of the sale of the Shares to
the Purchasers, or that will be integrated with the offer or sale of the Shares
for purposes of the rules and regulations of any Trading Market such that it
would require stockholder approval prior to the closing of such other
transaction unless stockholder approval is obtained before the closing of such
subsequent transaction. Each Purchaser shall not engage in any such
transactions or take any such actions that would be considered a distribution
of the Shares in violation of the Securities Act. 


          4.6
Securities Laws Disclosure; Publicity. Promptly after the execution
hereof, but no later than 6:00 pm on the Business Day immediately following
execution of this Agreement, the Company shall issue one or more press releases
(each, a “Press Release”) reasonably acceptable to the Purchasers disclosing
all material terms of the transactions contemplated hereby and any other
material, nonpublic information that the Company may have provided any
Purchaser at any time prior to the filing of the Press Release. If required by
law, the Company will file a Current Report on Form 8-K with the Commission
describing the terms of the Transaction Documents (and including as exhibits to
such Current Report on Form 8-K the material Transaction Documents (including,
without limitation, this Agreement and the Registration Rights Agreement)).
Notwithstanding the foregoing, the Company shall not publicly disclose the name
of any Purchaser or any Affiliate or investment adviser of any Purchaser, or
include the name of any Purchaser or any Affiliate or investment adviser of any
Purchaser in any press release or filing with the Commission (other than the
Registration Statement) or any regulatory agency or Trading Market, without the
prior written consent of such Purchaser, except (i) as required by federal
securities law in connection with (A) any registration statement contemplated
by the Registration Rights Agreement and (B) the filing of final Transaction
Documents with the Commission and (ii) to the extent such disclosure is
required by law, at the request of the Staff of the Commission or Trading
Market regulations, in which case the Company shall provide the Purchasers with
prior written notice of such disclosure permitted under this subclause (ii).
From and after the issuance of the Press Release(s), no Purchaser shall be in
possession of any material, non public information received from the Company,
any Subsidiary or any of their respective officers, directors or employees,
that is not disclosed in the Press Release(s). Each Purchaser, severally and
not jointly with the other Purchasers, covenants that until such time as the
transactions contemplated by this Agreement are publicly disclosed by the
Company as described in this Section 4.6, such Purchaser will maintain the
confidentiality of all disclosures made to it in connection with this
transaction (including the existence and terms of this transaction). 


19






          4.7
Non-Public Information. Except with respect to the material terms and
conditions of the transactions contemplated by the Transaction Documents, and
except with the express written consent of such Purchaser and unless prior
thereto such Purchaser shall have executed a written agreement regarding the
confidentiality and use of such information, the Company shall not, and shall
cause each Subsidiary and each of their respective officers, directors,
employees and agents, not to, and each Purchaser shall not solicit the Company,
any of its Subsidiaries or any of their respective officers, directors, employees
or agents to provide any Purchaser with any material, non-public information
regarding the Company or any of its Subsidiaries from and after the filing of
the Press Release(s). 


          4.8
[Intentionally Omitted]. 


          4.9
Listing of Common Stock. The Company will use its reasonable best
efforts to list the Shares for trading on the New York Stock Exchange, subject
to official notice of issuance, as promptly as reasonably practicable, after
the date hereof. As soon as practicable after the date hereof, the Company
shall file a supplemental listing application with the New York Stock Exchange
to list the Shares (the “Application”).



          4.10
Standstill. (a) Each Purchaser covenants that during the Standstill
Period, without the Company’s prior written consent, neither such Purchaser nor
any of its Affiliates will, directly or indirectly: 


          (i)
acquire, offer or propose or agree to acquire Beneficial Ownership of any
Voting Securities, if such acquisition would result in the Purchasers having
beneficial ownership of more than 15.0% of the Company’s outstanding shares of
Common Stock (the “Ownership Limit”);



          (ii)
make any public announcement with respect to any proposal for, or make a
private written proposal for, the acquisition by such Purchaser or any of its
Affiliates of any Voting Securities in excess of the Ownership Limit; 


          (iii)
make any public announcement with respect to any proposal for, or make a
private written proposal for, any merger, consolidation, business combination,
recapitalization, asset sale or other extraordinary transaction involving the
Company or its subsidiaries; 


          (iv)
make, or in any way participate in, any “solicitation” of “proxies” (as such
terms are defined or used in Regulation 14A under the Exchange Act) to vote any
Voting Securities or make or propose any shareholder proposal under Rule 14a-8
of the Exchange Act; provided,
that nothing in this clause (iii) shall prevent any Purchasers from voting any
Voting Securities then beneficially owned by them in any manner; 


          (v)
seek to place a director on the Board of Directors of the Company, or seek the
removal of any director of the Company; 


          (vi)
call or seek to have called any meeting of the shareholders of the Company, or
execute any written consent in lieu of a meeting of the shareholders of the
Company that is not approved by the Board of Directors of the Company; 


20






          (vii)
enter into any negotiations, arrangements or understandings with or assist or
request any third party with respect to any of the items set forth in clauses
(iii), (iv), (v) or (vi) above, or otherwise form, join or in any way engage in
discussions relating to the formation of, or participate in, a “group” within
the meaning of Section 13(d)(3) of the Exchange Act, as amended, in connection
with any of the foregoing; or 


          (viii)
make a request to amend or waive any provision of this Section 4.10 or contest
the validity of this Section 4.10. 


               (b)
For purposes of this Section 4.10, (w) the term “Affiliate” shall exclude such Purchaser’s investment adviser
(except to the extent acting directly or indirectly on behalf of such
Purchaser) and any Person that shares a common investment adviser (but only to
the extent that sharing a common investment adviser is the sole reason such
Person would otherwise be an Affiliate), (x) a Person shall be deemed to have “Beneficial Ownership” of any securities of
which such Person is considered to be a “Beneficial Owner” under Rule 13d-3
under the Exchange Act as in effect on the date hereof (including without
limitation, for the avoidance of doubt, through the use of derivative
securities or derivative transactions), (y) “Voting
Securities” shall mean Common Stock or shares of any class of
capital stock of the Company that are then entitled to vote generally in the
election of directors or any securities that are convertible into, or
exchangeable or exercisable for, any such shares, and any direct or indirect
rights or options to acquire Common Stock or such shares or any derivative
based on or relating to such Common Stock or such shares and (z) “Standstill Period” shall mean the period
beginning on the Closing Date and ending on first anniversary of the Closing
Date. 


               (c)
The foregoing clauses (a)(iii), (a)(v) or (a)(vi) of Section 4.10 shall not
prohibit any private verbal communications between representatives of a
Purchaser and representatives of the Company regarding any matters described in
such clauses (a)(iii), (a)(v) or (a)(vi) of Section 4.10 involving solely other
third parties who are not affiliated or associated with any such Purchaser or
its Affiliates and which matters are not being proposed principally on behalf
of any such Purchaser or its Affiliates, and not as a means of such Purchaser
or its Affiliates to avoid or evade the provisions of this Section 4.10. 


ARTICLE V.

CONDITIONS PRECEDENT TO CLOSING


          5.1
Conditions Precedent to the Obligations of the Purchasers to Purchase Shares.
The obligation of each Purchaser to acquire Shares at the Closing is subject to
the fulfillment to such Purchaser’s satisfaction, on or prior to the Closing
Date, of each of the following conditions, any of which may be waived by such
Purchaser (as to itself only): 


               (a)
Representations and Warranties. The representations and warranties of
the Company contained herein (i) that are qualified by materiality or Material
Adverse Effect shall be true and correct in all respects and (ii) that are not
qualified by materiality or Material Adverse Effect shall be true and correct
in all material respects, in each case as of the date when made and as of the
Closing Date, as though made on and as of such date, except for such
representations and warranties that speak as of a specific date. 


               (b)
Performance. The Company shall have performed, satisfied and complied in
all material respects with all covenants, agreements and conditions required by
the Transaction Documents to be performed, satisfied or complied with by it at
or prior to the Closing. 


               (c)
No Injunction. No statute, rule, regulation, executive order, decree,
ruling or injunction shall have been enacted, entered or promulgated by any
court or governmental authority of competent jurisdiction that prohibits the
consummation of any of the transactions contemplated by the Transaction
Documents.


21






               (d)
Consents. The Company shall have obtained in a timely fashion any and
all consents, permits, approvals, registrations and waivers required to be
obtained by the Company and necessary for consummation of the purchase and sale
of the Shares at the Closing, all of which shall be and remain so long as
necessary in full force and effect. 


               (e)
No Suspensions of Trading in Common Stock; Listing. The Common Stock (i)
shall be listed on the New York Stock Exchange and (ii) shall not have been
suspended, as of the Closing Date, by the Commission or the New York Stock
Exchange from trading on the New York Stock Exchange nor shall suspension by
the Commission or the New York Stock Exchange have been threatened, as of the
Closing Date, either (A) in writing by the Commission or the New York Stock
Exchange or (B) by falling below the minimum listing maintenance requirements
of the New York Stock Exchange. The Company shall have filed the Application
with the New York Stock Exchange. If required by the rules of the New York
Stock Exchange, the Shares shall have been authorized for listing on the New
York Stock Exchange, subject to official notice of issuance. 


               (f)
Company Deliverables. The Company shall have delivered the Company
Deliverables in accordance with Section 2.2(a). 


               (g)
Compliance Certificate. The Company shall have delivered to each
Purchaser a certificate, dated as of the Closing Date and signed by its Chief
Executive Officer or its Chief Financial Officer, dated as of the Closing Date,
certifying to the fulfillment of the conditions specified in Sections 5.1(a)
and (b) in the form attached hereto as Exhibit F.  


               (h)
Lock-up Agreement. The Company shall have obtained and delivered to each
Purchaser an executed lock-up agreement, dated as of the Closing Date, from
William C. Erbey in the form attached hereto as Exhibit H.  


               (i)
Termination. This Agreement shall not have been terminated as to such
Purchaser in accordance with Section 6.17 herein. 


          5.2
Conditions Precedent to the Obligations of the Company to sell Shares.
The Company’s obligation to sell and issue the Shares at the Closing is subject
to the fulfillment to the satisfaction of the Company on or prior to the
Closing Date of the following conditions, any of which may be waived by the
Company: 


               (a)
Representations and Warranties. The representations and warranties made
by the Purchaser in Section 3.2 hereof (i) that are qualified by materiality
shall be true and correct in all respects and (ii) that are not qualified by
materiality shall be true and correct in all material respects, in each case as
of the date when made, and as of the Closing Date as though made on and as of
such date, except for representations and warranties that speak as of a
specific date. 


               (b)
Performance. Such Purchaser shall have performed, satisfied and complied
in all material respects with all covenants, agreements and conditions required
by the Transaction Documents to be performed, satisfied or complied with by
such Purchaser at or prior to the Closing Date. 


               (c)
No Injunction. No statute, rule, regulation, executive order, decree,
ruling or injunction shall have been enacted, entered or promulgated by any
court or governmental authority of competent jurisdiction that prohibits the
consummation of any of the transactions contemplated by the Transaction
Documents.


22






               (d)
Consents. The Purchasers shall have obtained in a timely fashion any and
all consents, permits, approvals, registrations and waivers required to be
obtained by the Purchasers and necessary for consummation of the purchase and
sale of the Shares, all of which shall be and remain so long as necessary in
full force and effect. 


               (e)
Purchasers Deliverables. Such Purchaser shall have delivered its
Purchaser Deliverables in accordance with Section 2.2(b). 


               (f)
Compliance Certificate. Each Purchaser shall have delivered to the
Company a certificate, dated as of the Closing Date and signed by a duly
authorized signatory thereof, dated as of the Closing Date, certifying to the
fulfillment of the conditions specified in Sections 5.2(a) and (b) in the form
attached hereto as Exhibit G.  


               (g)
Listing. The Company shall have filed the Application with the New York
Stock Exchange. If required by the rules of the New York Stock Exchange, the
Shares shall have been authorized for listing on the New York Stock Exchange,
subject to official notice of issuance. 


               (h)
Termination. This Agreement shall not have been terminated as to such
Purchaser in accordance with Section 6.17 herein. 


ARTICLE VI. 

MISCELLANEOUS


          6.1
Fees and Expenses. The Company and the Purchasers shall each pay the
fees and expenses of their respective advisers, counsel, accountants and other
experts, if any, and all other expenses incurred by such party in connection
with the negotiation, preparation, execution, delivery and performance of this
Agreement. The Company shall pay all Transfer Agent fees, stamp taxes and other
taxes and duties levied in connection with the sale and issuance of the Shares
to the Purchasers. 


          6.2
Entire Agreement. The Transaction Documents, together with the Exhibits
and Schedules thereto, contain the entire understanding of the parties with
respect to the subject matter hereof and supersede all prior agreements,
understandings, discussions and representations, oral or written, with respect
to such matters, which the parties acknowledge have been merged into such
documents, exhibits and schedules. At or after the Closing, and without further
consideration, the Company and the Purchasers will execute and deliver to the
other such further documents as may be reasonably requested in order to give
practical effect to the intention of the parties under the Transaction
Documents. 


          6.3
Notices. Any and all notices or other communications or deliveries
required or permitted to be provided hereunder shall be in writing and shall be
deemed given and effective on the earliest of (a) the date of transmission, if
such notice or communication is delivered via facsimile (provided the sender
receives a machine-generated confirmation of successful transmission) at the
facsimile number specified in this Section prior to 5:00 p.m., New York City
time, on a Trading Day, (b) the next Trading Day after the date of
transmission, if such notice or communication is delivered via facsimile at the
facsimile number specified in this Section on a day that is not a Trading Day
or later than 5:00 p.m., New York City time, on any Trading Day, (c) the
Trading Day following the date of mailing, if sent by U.S. nationally
recognized overnight courier service with next day delivery specified, or (d)
upon actual receipt by the party to whom such notice is required to be given.
The address for such notices and communications shall be as follows: 


23






	
          If
  to the Company:

	
Ocwen
  Financial Corporation


	
 

	
1661
  Worthington Road, Suite 100


	
 

	
West Palm
  Beach, Florida 33409


	
 

	
Telephone
  No.: Separately Supplied


	
 

	
Facsimile
  No.: Separately Supplied


	
 

	
Attention:
  Chief Executive Officer


	
 

	
 


	
          If
  to a Purchaser:

	
To the
  address set forth under such Purchaser’s name on the signature page hereof;





or such other
address as may be designated in writing hereafter, in the same manner, by such
Person. 


          6.4
Amendments; Waivers; No Additional Consideration. No provision of this
Agreement may be waived or amended except in a written instrument signed, in
the case of an amendment, by the Company and each of the Purchasers or, in the
case of a waiver, by the party against whom enforcement of any such waiver is
sought. No waiver of any default with respect to any provision, condition or
requirement of this Agreement shall be deemed to be a continuing waiver in the
future or a waiver of any subsequent default or a waiver of any other
provision, condition or requirement hereof, nor shall any delay or omission of
either party to exercise any right hereunder in any manner impair the exercise
of any such right. No consideration shall be offered or paid to any Purchaser
to amend or consent to a waiver or modification of any provision of any
Transaction Document unless the same consideration is also offered to all
Purchasers who then hold Shares. 


          6.5
Construction. The headings herein are for convenience only, do not constitute
a part of this Agreement and shall not be deemed to limit or affect any of the
provisions hereof. The language used in this Agreement will be deemed to be the
language chosen by the parties to express their mutual intent, and no rules of
strict construction will be applied against any party. This Agreement shall be
construed as if drafted jointly by the parties, and no presumption or burden of
proof shall arise favoring or disfavoring any party by virtue of the authorship
of any provisions of this Agreement or any of the Transaction Documents. 


          6.6
Successors and Assigns. The provisions of this Agreement shall inure to
the benefit of and be binding upon the parties and their successors and
permitted assigns. Except as specifically provided in Section 4.1 with respect
to a Joinder Agreement, this Agreement, or any rights or obligations hereunder,
may not be assigned by the Company or any Purchaser without the prior written
consent of the Company and all of the Purchasers. 


          6.7
No Third-Party Beneficiaries. This Agreement is intended for the benefit
of the parties hereto and their respective successors and permitted assigns and
is not for the benefit of, nor may any provision hereof be enforced by, any
other Person. 


          6.8
Governing Law. All questions concerning the construction, validity,
enforcement and interpretation of this Agreement shall be governed by and
construed and enforced in accordance with the internal laws of the State of
Delaware, without regard to the principles of conflicts of law thereof. Each
party agrees that all Proceedings concerning the interpretations, enforcement
and defense of the transactions contemplated by this Agreement and any other
Transaction Documents (whether brought against a party hereto or its respective
Affiliates, employees or agents) shall be commenced exclusively in the Delaware
Courts. Each party hereto hereby irrevocably submits to the exclusive
jurisdiction of the Delaware Courts for the adjudication of any dispute
hereunder or in connection herewith or with any transaction contemplated hereby
or discussed herein (including with respect to the enforcement of any of the
Transaction Documents), and hereby irrevocably waives, and agrees not to assert
in any Proceeding, any claim that it is not personally subject to the
jurisdiction of any such Delaware Court, or that such Proceeding has been
commenced in an improper or inconvenient forum. Each party hereto hereby
irrevocably waives personal service of process and consents to process being served
in any such Proceeding by mailing a copy thereof via registered or certified
mail or overnight delivery (with evidence of delivery) to such party at the
address in effect for notices to it under this Agreement and agrees that such
service shall constitute good and sufficient service of process and notice
thereof. Nothing contained herein shall be deemed to limit in any way any right
to serve process in any manner permitted by law. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED
BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY.


24






          6.9
Survival. The representations and warranties contained herein shall
survive the Closing and the delivery of the Shares for a period of twelve
months following the Closing, and thereafter shall expire and have no further
force and effect (except with respect to claims properly made before the
expiration of such period). Except as otherwise provided herein, all covenants
and agreements contained herein shall survive for the duration of any
applicable statutes of limitations or until, by their respective terms, they
are no longer operative. 


          6.10
Execution. This Agreement may be executed in two or more counterparts,
all of which when taken together shall be considered one and the same agreement
and shall become effective when counterparts have been signed by each party and
delivered to the other party, it being understood that both parties need not
sign the same counterpart. In the event that any signature is delivered by
facsimile transmission, or by e-mail delivery of a “.pdf” format data file,
such signature shall create a valid and binding obligation of the party executing
(or on whose behalf such signature is executed) with the same force and effect
as if such facsimile signature page were an original thereof. 


          6.11
Severability. If any provision of this Agreement is held to be invalid
or unenforceable in any respect, the validity and enforceability of the
remaining terms and provisions of this Agreement shall not in any way be
affected or impaired thereby and the parties will attempt to agree upon a valid
and enforceable provision that is a reasonable substitute therefor, and upon so
agreeing, shall incorporate such substitute provision in this Agreement. 


          6.12
Replacement of Shares. If any certificate or instrument evidencing any
Shares is mutilated, lost, stolen or destroyed, the Company shall issue or
cause to be issued in exchange and substitution for and upon cancellation
thereof, or in lieu of and substitution therefor, a new certificate or
instrument, but only upon receipt of evidence reasonably satisfactory to the
Company and the Transfer Agent of such loss, theft or destruction and the
execution by the holder thereof of a customary lost certificate affidavit of
that fact and an agreement to indemnify and hold harmless the Company and the
Transfer Agent for any losses in connection therewith or, if required by the
Transfer Agent, a bond in such form and amount as is required by the Transfer
Agent. The applicants for a new certificate or instrument under such
circumstances shall also pay any reasonable third-party costs associated with
the issuance of such replacement Shares. If a replacement certificate or
instrument evidencing any Shares is requested due to a mutilation thereof, the
Company may require delivery of such mutilated certificate or instrument as a
condition precedent to any issuance of a replacement. 


          6.13
Remedies. In addition to being entitled to exercise all rights provided
herein or granted by law, including recovery of damages, each of the Purchasers
and the Company will be entitled to specific performance under the Transaction
Documents. The parties agree that monetary damages may not be adequate
compensation for any loss incurred by reason of any breach of obligations
described in the foregoing sentence and hereby agree to waive in any action for
specific performance of any such obligation (other than in connection with any
action for a temporary restraining order) the defense that a remedy at law
would be adequate. 


25






          6.14
Payment Set Aside. To the extent that the Company makes a payment or
payments to any Purchaser pursuant to any Transaction Document or a Purchaser
enforces or exercises its rights thereunder, and such payment or payments or
the proceeds of such enforcement or exercise or any part thereof are
subsequently invalidated, declared to be fraudulent or preferential, set aside,
recovered from, disgorged by or are required to be refunded, repaid or
otherwise restored to the Company, a trustee, receiver or any other person
under any law (including, without limitation, any bankruptcy law, state or
federal law, common law or equitable cause of action), then to the extent of
any such restoration the obligation or part thereof originally intended to be
satisfied shall be revived and continued in full force and effect as if such
payment had not been made or such enforcement or setoff had not occurred. 


          6.15
Adjustments in Common Stock Numbers and Prices. In the event of any
stock split, subdivision, dividend or distribution payable in shares of Common
Stock (or other securities or rights convertible into, or entitling the holder
thereof to receive directly or indirectly shares of Common Stock), combination
or other similar recapitalization or event occurring after the date hereof and
prior to the Closing, each reference in any Transaction Document to a number of
shares or a price per share shall be deemed to be amended to appropriately
account for such event. 


          6.16
Independent Nature of Purchasers’ Obligations and Rights. The
obligations of each Purchaser under any Transaction Document are several and
not joint with the obligations of any other Purchaser, and no Purchaser shall
be responsible in any way for the performance of the obligations of any other
Purchaser under any Transaction Document. The decision of each Purchaser to purchase
Shares pursuant to the Transaction Documents has been made by such Purchaser
independently of any other Purchaser and independently of any information,
materials, statements or opinions as to the business, affairs, operations,
assets, properties, liabilities, results of operations, condition (financial or
otherwise) or prospects of the Company or any Subsidiary which may have been
made or given by any other Purchaser or by any agent or employee of any other
Purchaser, and no Purchaser and any of its agents or employees shall have any
liability to any other Purchaser (or any other Person) relating to or arising
from any such information, materials, statement or opinions. Nothing contained
herein or in any Transaction Document, and no action taken by any Purchaser
pursuant thereto, shall be deemed to constitute the Purchasers as a
partnership, an association, a joint venture or any other kind of entity, or
create a presumption that the Purchasers are in any way acting in concert or as
a group with respect to such obligations or the transactions contemplated by
the Transaction Documents. Each Purchaser acknowledges that no other Purchaser
has acted as agent for such Purchaser in connection with making its investment
hereunder and that no Purchaser will be acting as agent of such Purchaser in
connection with monitoring its investment in the Shares or enforcing its rights
under the Transaction Documents. Each Purchaser shall be entitled to
independently protect and enforce its rights, including without limitation the
rights arising out of this Agreement or out of the other Transaction Documents,
and it shall not be necessary for any other Purchaser to be joined as an
additional party in any proceeding for such purpose. 


          6.17
Termination. This Agreement may be terminated and the sale and purchase
of the Shares abandoned at any time prior to the Closing by either the Company
or any Purchaser (with respect to itself only) upon written notice to the
other, if the Closing has not been consummated on or prior to 5:00 p.m., New
York City time, on the Outside Date; provided, however, that the right to
terminate this Agreement under this Section 6.17 shall not be available to any
Person whose failure to comply with its obligations under this Agreement has
been the cause of or resulted in the failure of the Closing to occur on or
before such time. Nothing in this Section 6.17 shall be deemed to release any
party from any liability for any willful breach by such party of the terms and
provisions of this Agreement or the other Transaction Documents or to impair
the right of any party to compel specific performance by any other party of its
obligations under this Agreement or the other Transaction Documents, subject to
Section 6.13. In the event of a termination pursuant to this Section, the
Company shall promptly notify all non-terminating Purchasers. Upon a
termination in accordance with this Section, the Company and the terminating
Purchaser(s) shall not have any further obligation or liability (including
arising from such termination) to the other, and no Purchaser will have any
liability to any other Purchaser under the Transaction Documents as a result
therefrom.


26






          IN
WITNESS WHEREOF, the parties hereto have caused this Share Purchase Agreement
to be duly executed by their respective authorized signatories as of the date
first indicated above. 


	
 

	
 

	
 

	
 


	
 

	
OCWEN
  FINANCIAL CORPORATION 

	 
	
 

	
 


	
 

	
By:

	
/s/ David J.
  Gunter 

	 
	
 

	
 

	 

	 
	
 

	
 

	
Name: David
  J. Gunter 

	 
	
 

	
 

	
Title:
  Executive Vice President and Chief Financial Officer 





[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] 

[SIGNATURE PAGES FOR PURCHASERS FOLLOW]






	
 

	
 

	
 


	
 

	
NAME OF
  PURCHASER: 


	
 

	
 


	
 

	
Bay Pond
  Partners, L.P. 


	
 

	
 

	
 


	
 

	
By:
  Wellington Management Company, LLP 

  as Investment Adviser 
 


	
 

	
By:

	
/s/ Steven
  M. Hoffman 


	
 

	
 

	 


	
 

	
Name: Steven
  M. Hoffman 


	
 

	
Title: Vice
  President and Counsel 


	
 

	
 


	
 

	
Aggregate
  Purchase Price (Subscription Amount): $24,070,200 


	
 

	
 


	
 

	
Number of
  Shares to be Acquired: 2,188,200 


	
 

	
 


	
 

	
Tax ID No.:
  ____________________ 


	
 

	
 


	
 

	
Address for
  Notice: 


	
 

	
 


	
 

	
c/o
  Wellington Management Company, LLP 


	
 

	
 

	
75 State
  Street, Boston, MA 02109 


	
 

	
 

	
 


	
 

	
Telephone
  No.: 617.790.7535 


	
 

	
 


	
 

	
Facsimile
  No.: 617.289.5699


	
 

	
 


	
 

	
E-mail
  Address: seclaw@wellington.com


	
 

	
 


	
 

	
Attention:
  Legal/Compliance 





Delivery
Instructions: 
(if different than above)


c/o
_______________________________ 


Street:
____________________________ 


City/State/Zip:
______________________ 


Attention:
__________________________ 


Telephone No.:
______________________






	
 

	
 

	
 


	
 

	
NAME OF
  PURCHASER: 


	
 

	
 


	
 

	
Bay Pond
  Investors (Bermuda) L.P. 


	
 

	
 


	
 

	
By:
  Wellington Management Company, LLP 


	
 

	
as
  Investment Adviser 


	
 

	
 

	
 


	
 

	
By:

	
/s/ Steven
  M. Hoffman 


	
 

	
 

	 


	
 

	
Name: Steven
  M. Hoffman 


	
 

	
Title: Vice
  President and Counsel 


	
 

	
 


	
 

	
Aggregate
  Purchase Price (Subscription Amount): $7,400,800 


	
 

	
 


	
 

	
Number of Shares
  to be Acquired: 672,800 


	
 

	
 


	
 

	
Tax ID No.:
  ____________________ 

Address for Notice: 


	
 

	
 


	
 

	
c/o
  Wellington Management Company, LLP 


	
 

	
 

	
75 State
  Street, Boston, MA 02109 


	
 

	
 

	
 


	
 

	
Telephone
  No.: 617.790.7535


	
 

	
 


	
 

	
Facsimile
  No.: 617.289.5699


	
 

	
 


	
 

	
E-mail Address:
  seclaw@wellington.com


	
 

	
 


	
 

	
Attention:
  Legal/Compliance 





Delivery
Instructions: 

(if different than above) 


c/o
_______________________________ 


Street:
____________________________ 


City/State/Zip:
______________________ 


Attention:
__________________________ 


Telephone No.:
____________________________ 






	
 

	
 

	
 


	
 

	
NAME OF
  PURCHASER: 


	
 

	
 


	
 

	
Ithan Creek
  Master Investors (Cayman) L.P. 


	
 

	
 


	
 

	
By:
  Wellington Management Company, LLP 


	
 

	
as
  Investment Adviser 


	
 

	
 


	
 

	
By:

	
/s/ Steven
  M. Hoffman 


	
 

	
 

	 


	
 

	
Name: Steven
  M. Hoffman 


	
 

	
Title: Vice
  President and Counsel 


	
 

	
 


	
 

	
Aggregate
  Purchase Price (Subscription Amount): $15,716,800 


	
 

	
 


	
 

	
Number of
  Shares to be Acquired: 1,428,800 


	
 

	
 


	
 

	
Tax ID No.:
  ____________________ 

Address for Notice: 


	
 

	
 


	
 

	
c/o
  Wellington Management Company, LLP 


	
 

	
 

	
75 State
  Street, Boston, MA 02109 


	
 

	
 


	
 

	
Telephone
  No.: 617.790.7535


	
 

	
 


	
 

	
Facsimile
  No.: 617.289.5699


	
 

	
 


	
 

	
E-mail
  Address: seclaw@wellington.com 


	
 

	
 


	
 

	
Attention:
  Legal/Compliance 





Delivery
Instructions: 

(if different than above) 


c/o _______________________________



Street:
____________________________ 


City/State/Zip:
______________________ 


Attention:
__________________________ 


Telephone No.:
____________________________ 






	
 

	
 

	
 


	
 

	
NAME OF
  PURCHASER: 


	
 

	
 


	
 

	
Wolf Creek
  Partners, L.P. 


	
 

	
 


	
 

	
By:
  Wellington Management Company, LLP 


	
 

	
as
  Investment Adviser 


	
 

	
 


	
 

	
By:

	
/s/ Steven
  M. Hoffman 


	
 

	
 

	 


	
 

	
Name: Steven
  M. Hoffman 


	
 

	
Title: Vice
  President and Counsel 


	
 

	
 


	
 

	
Aggregate
  Purchase Price (Subscription Amount): $5,091,900 


	
 

	
 


	
 

	
Number of
  Shares to be Acquired: 462,900 


	
 

	
 


	
 

	
Tax ID No.:
  ____________________ 

Address for Notice: 


	
 

	
 


	
 

	
c/o
  Wellington Management Company, LLP 


	
 

	
 

	
75 State
  Street, Boston, MA 02109 


	
 

	
 

	
 


	
 

	
Telephone
  No.: 617.790.7535


	
 

	
 


	
 

	
Facsimile
  No.: 617.289.5699 


	
 

	
 


	
 

	
E-mail
  Address: seclaw@wellington.com 


	
 

	
 


	
 

	
Attention:
  Legal/Compliance 





Delivery
Instructions: 

(if different than above) 


c/o
_______________________________


Street:
____________________________ 


City/State/Zip:
______________________ 


Attention:
__________________________ 


Telephone No.:
____________________________ 






	
 

	
 

	
 


	
 

	
NAME OF
  PURCHASER: 


	
 

	
 


	
 

	
Wolf Creek
  Investors (Bermuda) L.P. 


	
 

	
 


	
 

	
By:
  Wellington Management Company, LLP 


	
 

	
as
  Investment Adviser 


	
 

	
 


	
 

	
By:

	
/s/ Steven
  M. Hoffman 


	
 

	
 

	 


	
 

	
Name: Steven
  M. Hoffman 


	
 

	
Title: Vice
  President and Counsel 


	
 

	
 


	
 

	
Aggregate
  Purchase Price (Subscription Amount): $5,045,700 


	
 

	
 


	
 

	
Number of
  Shares to be Acquired: 458,700 


	
 

	
 


	
 

	
Tax ID No.:
  ____________________ 

Address for Notice: 


	
 

	
 


	
 

	
c/o
  Wellington Management Company, LLP 


	
 

	
 

	
75 State
  Street, Boston, MA 02109 


	
 

	
 

	
 


	
 

	
Telephone
  No.: 617.790.7535


	
 

	
 


	
 

	
Facsimile
  No.: 617.289.5699


	
 

	
 


	
 

	
E-mail
  Address: seclaw@wellington.com 


	
 

	
 


	
 

	
Attention:
  Legal/Compliance 





Delivery
Instructions: 

(if different than above) 


c/o
_______________________________ 


Street:
____________________________ 


City/State/Zip:
______________________ 


Attention:
__________________________ 


Telephone No.:
____________________________ 






	
 

	
 

	
 


	
 

	
NAME OF
  PURCHASER: 


	
 

	
 


	
 

	
First
  Opportunity Fund, Inc. 


	
 

	
 


	
 

	
By:
  Wellington Management Company, LLP 


	
 

	
as
  Investment Adviser 


	
 

	
 


	
 

	
By:

	
/s/ Steven
  M. Hoffman 


	
 

	
 

	 


	
 

	
Name: Steven
  M. Hoffman 


	
 

	
Title: Vice
  President and Counsel 


	
 

	
 


	
 

	
Aggregate
  Purchase Price (Subscription Amount): $2,861,100 


	
 

	
 


	
 

	
Number of
  Shares to be Acquired: 260,100 


	
 

	
 


	
 

	
Tax ID No.:
  ____________________ 

Address for Notice: 


	
 

	
 


	
 

	
c/o
  Wellington Management Company, LLP 


	
 

	
 

	
75 State
  Street, Boston, MA 02109 


	
 

	
 

	
 


	
 

	
Telephone
  No.: 617.790.7535


	
 

	
 


	
 

	
Facsimile
  No.: 617.289.5699


	
 

	
 


	
 

	
E-mail
  Address: seclaw@wellington.com


	
 

	
 


	
 

	
Attention:
  Legal/Compliance 





Delivery
Instructions: 

(if different than above) 


c/o
_______________________________ 


Street:
____________________________ 


City/State/Zip:
______________________ 


Attention:
__________________________ 


Telephone No.:
____________________________