Exhibit 10.75
SEPARATION AGREEMENT AND GENERAL RELEASE
THIS SEPARATION AGREEMENT AND GENERAL RELEASE ("Separation Agreement" or
"Agreement") is made effective as of December 27, 2000, by and between New
Century Financial Corporation ("New Century" or "Company"), a corporation with
offices located at 00000 Xxx Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxxxxxxx 00000, and
XXXXX XXXXXX ("Xx. XXXXXX"), an individual, with reference to the following:
1. TERMINATION OF THE EMPLOYMENT AGREEMENT. New Century and Xx. XXXXXX
voluntarily agree mutually to terminate Xx. XXXXXX'x Employment Agreement
("Employment Agreement"), dated January 1, 1999, with New Century, pursuant to
the terms and conditions of this Agreement. Accordingly, Xx. XXXXXX'x employment
with New Century will terminate, effective December 27, 2000. In this regard,
both New Century and Xx. XXXXXX expressly waive the termination and notice
requirements concerning the termination of his employment contained in the
Employment Agreement and its amendments.
2. WRITTEN RESIGNATIONS. In connection with the termination of the Employment
Agreement, Xx. XXXXXX agrees to submit written resignations, effective December
27, 2000, from all of his positions as a Member of the Board of Directors and as
an Officer of the Company within five (5) business days of his execution of this
Agreement.
3. SEVERANCE PAYMENT AND BENEFITS. In consideration of Xx. XXXXXX'x agreement
to enter into this Agreement, New Century agrees to provide Xx. XXXXXX the
following severance payment and benefits ("the Severance Package"):
3a. SEVERANCE PAYMENTS. The Company will pay Xx. XXXXXX: An initial
payment of One Hundred Thousand Dollars ($100,000) and twelve (12)
monthly payments in the amount of Thirty-Seven Thousand Five Hundred
Dollars ($37,500) each. The initial payment and monthly payments for
January and February 2001 will be made upon the expiration of the
revocation period referred to in Section 11c, below, after Xx.
XXXXXX executes this Agreement, and thereafter on the last day of
each month, commencing on March 31, 2001 and ending on December 31,
2001. In addition, on January 15, 2002, the Company will pay Xx.
XXXXXX One Hundred Thousand Dollars ($100,000), and on February 15,
2002, the Company will pay Xx. XXXXXX a final payment of One Hundred
Thousand Dollars ($100,000).
All payments shall be subject to applicable withholding. In
addition, the Company's payment obligation will be contingent upon
Xx. XXXXXX'x continued compliance with the terms of this Agreement
and Xx. XXXXXX'x Consulting Agreement with the Company, attached
hereto as Appendix A.
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3b. STOCK OPTIONS. The Compensation Committee of the Company's Board of
Directors will permit Xx. XXXXXX to remain a participant under the Company's
1995 Stock Option Plan in accordance with the terms of the Consulting Agreement
referred to in Xxxxxxxxx 0x xxxxx. This will allow Xx. XXXXXX'x June 1997, July
1998 and February 1999 stock option awards under the Stock Option Plan to remain
outstanding and to continue to vest in accordance with the applicable award
agreement.
3c. CONSULTANT STATUS. Xx. XXXXXX agrees that upon the termination of
his employment at New Century, he shall become a Consultant to the Company,
according to the terms set out in the Consulting Agreement, attached hereto as
Appendix A.
4. GENERAL RELEASE BY XX. XXXXXX. For and in consideration of the Severance
Package described in Paragraph 3, and other good and valuable consideration:
4a. Xx. XXXXXX hereby voluntarily, knowingly and willingly releases,
acquits and forever discharges New Century and each of its former, current and
future parents, subsidiaries, divisions, affiliates, predecessors, successors
and assigns, and each of its and their respective venturers, attorneys,
representatives, predecessors, successors, assigns, owners, and servants, from
any and all claims, costs or expenses of any kind or nature whatsoever, whether
known or unknown, foreseen or unforeseen, including, without limitation, any
discrimination claims under the Age Discrimination in Employment Act, the
Americans with Disabilities Act, Title VII of the Civil Rights Act, the
California Fair Employment & Housing Act, the California Labor Code or common
law, which against any or all of them Xx. XXXXXX ever had, now has or
hereinafter may have, up to and including the date of his execution of this
Agreement, including, without limitation, those arising out of or in any way
related to Xx. XXXXXX'x employment at New Century, his Employment Agreement, or
the termination of his employment.
4b. It is a condition hereof, and it is Xx. XXXXXX'x intention in the
execution of the General Release in subparagraph 4.a. above, that the same shall
be effective as a bar to each and every claim hereinabove specified, and in
furtherance of this intention, Xx. XXXXXX hereby expressly waives any and all
rights and benefits conferred upon him by Section 1542 of the California Civil
Code, which provides:
A general release does not extend to claims which the creditor does not
know or suspect to exist in his favor at the time of executing the
Release, which if known by him must have materially affected his
settlement with the debtor.
5. GENERAL RELEASE BY THE COMPANY. For and in consideration of the General
Release in Paragraph 4, and other good and valuable consideration:
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5a. New Century hereby voluntarily, knowingly and willingly releases,
acquits and forever discharges Xx. Xxxxxx and each of his representatives,
attorneys, heirs, distributees, devisees, legatees, executors, administrators,
successors and assigns, from any and all claims, costs or expenses of any kind
or nature whatsoever, whether known or unknown, foreseen or unforeseen, arising
out of or in any way related to Xx. XXXXXX'x employment at New Century, his
Employment Agreement, or the termination of his employment.
5b. It is a condition hereof, and it is New Century's intention in the
execution of the General Release in subparagraph 5.a. above, that the same shall
be effective as a bar to each and every claim hereinabove specified, and in
furtherance of this intention, New Century hereby expressly waives any and all
rights and benefits conferred upon it by Section 1542 of the California Civil
Code, which provides:
A general release does not extend to claims which the creditor does not
know or suspect to exist in his favor at the time of executing the
Release, which if known by him must have materially affected his
settlement with the debtor.
6. COVENANT NOT TO XXX. Xx. XXXXXX and New Century each agrees that
he or it will not make, assert or maintain against any person, firm,
corporation or entity included in the General Releases in Paragraph 4
and 5, above, any claim, demand, action, suit or proceeding arising out
of, related to or in any manner whatsoever connected with the claims
and other matters therein released.
7. CONFIDENTIALITY, NON-COMPETITION AND NONDISCLOSURE.
7a. CONFIDENTIALITY. Xx. XXXXXX will not during his employment by the
Company or thereafter at any time disclose, directly or indirectly, to any
person or entity or use for Xx. XXXXXX'x own benefit any trade secrets or
confidential information relating to the Company's or its affiliates' business
operations, marketing data, business plans, strategies, employees, negotiations
and contracts with other companies, or any other subject matter pertaining to
the business of the Company, its affiliates or any of their clients, customers,
consultants, licensees, or affiliates, known, learned, or acquired by Xx. XXXXXX
during the period of his employment by the Company (collectively "Confidential
Information"). For the purposes of this Agreement, Confidential Information does
not include (i) information that has been disclosed publicly by the Company,
(ii) information that Xx. XXXXXX had in his possession prior to the formation of
the Company, and (iii) information that is or becomes available from other
sources.
7b. RETURN OF CONFIDENTIAL MATERIAL. Xx. XXXXXX shall promptly deliver to
the Company on termination of his employment with the Company, whether or not
for cause and whatever the reason, or at any time the Company may so request,
all memoranda, notes, records, reports, manuals, drawings, blueprints, and any
other documents of a confidential nature belonging to the
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Company or its affiliates, including all copies of such materials which Xx.
XXXXXX may then possess or have under his control. Upon termination of Xx.
XXXXXX'x employment by the Company, Xx. XXXXXX shall not take any document,
data, or other material of any nature containing or pertaining to the
proprietary information of the Company.
7c. NO COMPETING EMPLOYMENT. Until December 31, 2001, Xx. XXXXXX shall
not, unless he receives the prior written consent of the Company, directly or
indirectly own an interest in, manage, operate, join, control, lend money or
render financial assistance to, as an officer, employee, partner, stockholder,
consultant or otherwise, any individual, partnership, firm, corporation or other
business organization or entity that, at such time directly competes with, or
intends to compete with, the Company or its affiliates in the business of
underwriting, purchasing, securitizing, selling or servicing subprime credit
grade secured loans or any other principal line of business engaged in by the
Company at the time of such termination (a "Competing Company"). Notwithstanding
the foregoing, Xx. XXXXXX shall be entitled to own securities of any entity if
such securities are registered under Section 12(b) or (g) of the Securities
Exchange Act of 1934, as amended, and, upon approval of the Company's Board of
Directors, Xx. XXXXXX shall be entitled to purchase securities of a Competing
Company entity if such securities are offered to investors irrespective of any
employment or other participation in the entity by the investor. In addition,
Xx. XXXXXX may engage in any of the businesses described in Appendix B attached
hereto without violating this Section 7c.
7d. PROHIBITION ON SOLICITATION OF CUSTOMERS. Until December 31, 2001, Xx.
XXXXXX shall not, directly or indirectly, either for Xx. XXXXXX or for any other
person or entity, solicit any person or entity to terminate such person's or
entity's contractual and/or business relationship with the Company or its
affiliates, nor shall XX. XXXXXX interfere with or disrupt or attempt to
interfere with or disrupt any such relationship.
7e. PROHIBITION OF SOLICITATION OF THE COMPANY'S EMPLOYEES OR INDEPENDENT
CONTRACTORS AFTER TERMINATION. Until December 31, 2001, Xx. XXXXXX shall not
directly or indirectly solicit any of the Company's or its affiliates'
employees, agents, or independent contractors to leave the employ of the Company
or its affiliates for a competitive company or business, and Xx. XXXXXX will not
in any capacity, directly or indirectly, hire or cause to be hired, any the
Company's or its affiliates' current or former employees, who voluntarily
terminate their employment, for a period of at least one hundred twenty (120)
days after the termination of their employment with the Company or its
affiliates. This employee hiring prohibition will not apply to any employee
which the Company or its affiliates terminates. If Xx. XXXXXX breaches this
provision, whether intentionally or inadvertently, he shall have fifteen (15)
days from the earlier of (i) his discovery of the breach or (ii) his receipt of
written notice from the Company about the breach, in which to cure the breach.
The Company's
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notice under clause (ii) in the preceding sentence must be delivered within 90
days after the applicable employee has commenced the employment deemed to breach
this Paragraph 7e.
7f. RIGHT TO INJUNCTIVE AND EQUITABLE RELIEF. Xx. XXXXXX'x obligations not
to disclose or use Confidential Information and to refrain from the
solicitations and other prohibited actions described in Sections 7a through 7e
of this Agreement are of a special and unique character which gives them
peculiar value. The Company cannot be reasonably or adequately compensated in
damages in an action at law in the event Xx. XXXXXX breaches such obligations.
Therefore, Xx. XXXXXX expressly agrees that the Company shall be entitled to
injunctive and other equitable relief without bond or other security in the
event of such breach in addition to any other rights or remedies which the
Company may possess. Furthermore, the obligations of Xx. XXXXXX and the rights
and remedies of the Company under this Section are cumulative and in addition
to, and not in lieu of, any obligations, rights, or remedies created by
applicable law relating to misappropriation or theft of trade secrets or
confidential information.
7g. NO VIOLATION OF OTHER AGREEMENTS. Xx. XXXXXX represents that his
performance of all the terms of this Agreement and as an employee of the Company
does not and will not breach any agreement to (i) not compete or interfere with
the business of a former employer (which term for purposes of this Section 7g
shall also include persons, firms, corporations and other entities for which Xx.
XXXXXX has acted as an independent contractor or consultant), (ii) not solicit
employees, customers or vendors of any former employer or (iii) keep in
confidence proprietary information acquired by Xx. XXXXXX in confidence or in
trust prior to Xx. XXXXXX'x employment with the Company.
8. XX. XXXXXX'X OFFICE. Xx. XXXXXX agrees to vacate his New Century office on
or before January 1, 2001. Xx. XXXXXX will return all Company property (except
his Mercedes lease, as stated below) to New Century on or before that date.
The Company will forward all personal mail, telephone calls, and emails
that may be sent to Xx. XXXXXX after he vacates his office to 0000 Xxxxxxxxx,
X-000, Xxxxxx, XX 00000 for a period of twelve (12) of months, to and including
December 27, 2001.
Xx. Xxxxxx will assume all payments and other obligations with respect to his
Mercedes lease, but until such assumption is complete, the Company may deduct
all such amounts from the Severance Package payments due hereunder
9. NON-DISPARAGEMENT . Xx. XXXXXX agrees that he will not at any time make or
publish any negative, derogatory or disparaging remarks, either orally or in
writing, regarding the Company, its products, officers, affiliates or employees
to any persons or entities. New Century agrees that its senior executives will
not
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at any time make or publish any negative, derogatory or disparaging remarks,
either orally or in writing, regarding Xx. XXXXXX.
10. COOPERATION IN PROCEEDINGS. Xx. XXXXXX agrees to cooperate fully with the
Company, its attorneys and other representatives in investigating, prosecuting
and defending any charges, claims, demands, liabilities, causes of action,
lawsuits or other proceedings by, against or involving the Company or its
affiliates relating to the period during which Xx. XXXXXX was employed by the
Company or relating to matters of which Xx. XXXXXX has or should have knowledge
or information. This includes making himself available in and around Southern
California and to be interviewed by and to cooperate fully with the Company and
its representatives in connection with potential or actual litigation, including
discovery and trial preparation and proceedings. In the event that Xx. Xxxxxx is
asked to cooperate in any of these proceedings and he in fact does so, such time
that Xx. Xxxxxx spends shall be considered consulting services for the purposes
of the Consulting Agreement, Appendix A.
11. MISCELLANEOUS.
11a. Xx. XXXXXX and New Century each represents and warrants that he
and it has not heretofore assigned or transferred, or purported to assign or
transfer, to any person, firm, corporation or entity any claim or other matter
herein released. Xx. XXXXXX and New Century each agrees to indemnify the other
and anyone else herein released and hold them harmless against any claims, costs
or expenses, including, without limitation, attorneys' fees actually paid or
incurred, arising out of, related to or in any manner whatsoever connected with
any such transfer or assignment or purported or claimed transfer or assignment.
11b. Xx. XXXXXX and New Century agree to attempt in good faith to
resolve any dispute, controversy or claim (a "Dispute") between them involving
the interpretation of this Agreement, the obligations of a party hereto, or the
breach thereof. If, notwithstanding such efforts, within twenty (20) days after
one party gives the other party notice of the Dispute, which notice shall
contain a reasonable description of the Dispute, the parties cannot resolve such
Dispute, then the Dispute will be settled by binding arbitration in accordance
with the employment dispute arbitration rules of JAMS/ENDISPUTE. There will be
one arbitrator mutually selected by the parties within ten (10) business days
from the date of notification made to one of the parties of the other party's
request for arbitration. If the parties fail to agree upon an arbitrator within
such ten (10) days, JAMS/ENDISPUTE wll promptly appoint the arbitrator in
accordance with its rules. The place of the arbitration will be in Orange
County, California, United States of America. The arbitrator will have at least
10 years experience in employment disputes. The arbitration will commence within
30 business days after appointment of the arbitrator and will continue
uninterrupted unless otherwise suspended by the arbitrator for good cause, for
not longer than 90 days (including without limitation any discovery permitted by
the arbitrator). The arbitrator will, within such 90-day period, render a
written decision with findings of fact and conclusions of law and deliver such
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decision to the parties. The resulting arbitration will be binding and judgment
upon the award rendered by the arbitrator may be enforced in the Superior Court
of the County of Orange, California or the United States District Court for the
Central District of California. The prevailing party in such arbitration, and
subsequent enforcement thereof, will be entitled to recover from the other party
all costs and expenses (including reasonable attorneys' fees and costs)
incurred. Notwithstanding the foregoing, nothing contained in this Section 11b
will prevent or be construed to prevent either party from seeking a temporary
restraining order or a preliminary or permanent injunction or any other form of
interim, provisional or temporary equitable relief in any court of competent
jurisdiction. In such circumstances, however, all obligations under this
Agreement, including, without limitation, the General Release and Covenants Not
to Xxx in Paragraphs 4 and 5, above, shall remain in full force and effect.
11c. Pursuant to the Older Workers Benefit Protection Act, Xx.
XXXXXX has twenty-one (21) days from his receipt of this Agreement to consider
its terms before signing it. In this regard, Xx. XXXXXX acknowledges that (i) he
is not waiving any rights or claims that may arise after the date she executes
this Agreement and (ii) NEW CENTURY has advised him to consult with an attorney
prior to signing this Agreement. This Agreement shall become effective seven (7)
days after he signs it. During this seven (7) day period, Xx. XXXXXX may revoke
his consent to this Agreement, in which case this Agreement becomes null and
void. NEW CENTURY will not make the Severance Payments referred to in Paragraph
3a, above, until the expiration of this revocation period, without Xx. XXXXXX
having exercised his right of revocation.
11d. This Agreement sets forth the entire agreement between Xx.
XXXXXX and NEW CENTURY and fully supersedes any and all prior agreements or
understandings between them pertaining to the subject matter of this Agreement.
It may not be altered, modified, amended or changed, in whole or in part, except
in a writing executed by Xx. XXXXXX and NEW CENTURY.
11e. Should any provision or term, or part of a provision or term,
of this Agreement be declared or determined by any court to be illegal or
invalid, the validity of the remaining parts, provisions or terms shall not be
affected thereby and said illegal or invalid part, provision or term shall not
be deemed to be a part of this Agreement.
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11f. This Agreement shall be governed by the laws of the State
of California.
IN WITNESS HEREOF, this Agreement is effective as of the date first stated
above.
"NEW CENTURY" "Xx. XXXXXX"
New Century Financial Corporation
By: /s/ Xxxxxx X. Xxxx By: /s/ Xxxxxx Xxxxxx
--------------------------- ----------------------
Xxxxxx X. Xxxx Xxxxxx Xxxxxx
Chief Executive Officer
Dated: March 9, 2001 Dated: March 9, 2001
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APPENDIX A
CONSULTING AGREEMENT
THIS AGREEMENT ("Consulting Agreement") is made as of December 27, 2000
between New Century Financial Corporation (the "Company"), a corporation with
offices located at 00000 Xxx Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxxxxxxx 00000, and
Xxxxxx Xxxxxx (the "Consultant"), an individual with an address at 0000
Xxxxxxxxx, X-000, Xxxxxx, XX 00000.
RECITALS
WHEREAS, the Company has engaged the Consultant to provide consulting
services to the Company, and the Consultant desires to provide such consulting
services to the Company, for the period provided herein upon the terms and
conditions previously agreed and set forth herein;
CONSULTING AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
and agreements herein contained, and intending to be legally bound hereby, the
Company and the Consultant hereby agree as follows.
1. CONSULTING PERIOD. The Consultant's engagement will commence on the
effective date of this Consulting Agreement through December 31, 2001. The
Consultant will make himself available to provide mortgage lending
operations-related consulting services for up to ten (10) hours each month
during the term of the Consulting Agreement. The Consultant or the Company may
terminate the Consulting Agreement with or without cause. If the Consultant
terminates the Consulting Agreement for any reason, the Company's payment
obligations will end on the termination date. If the Company terminates the
Consulting Agreement without cause, the Consultant shall be entitled to the
payments and other rights set forth in Section 3, below. If the Company
terminates the Consulting Agreement for cause, as defined in Section 4, below,
then the Consultant will not be entitled to any further payments.
2. DUTIES. The Consultant has agreed to render consulting services to
the Company, as requested by the Company from time to time, which services will
generally be rendered in Orange County, California, except for such times the
Consultant may be engaged in other business activities during the Consulting
Period, and the Company will reasonably cooperate with the Consultant in
scheduling the performance of his duties so as to minimize the interference with
such other duties; however, the Consultant agrees (i) to consult with the
Company on a first priority basis and to devote as much time as necessary to
fulfill the requirements of his duties and (ii) not to engage in other business
activities (except those activities specifically stated in Appendix B to the
parties' Separation Agreement and General Release), while a consultant to the
Company, which would conflict with the performance of his duties under this
Consulting Agreement or for any third party that is engaged in a similar
business to the Company. In performing his duties for the Company, the
Consultant will report to the Chief Executive Officer of the Company, as well as
such other employees of the Company as may be designated by the Chief Executive
Officer of the Company from time to time. The Consultant will perform the
consulting services at such locations as the parties may agree to be appropriate
with regard to a particular assignment.
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3. COMPENSATION. As compensation for the consulting services to be
rendered under this Consulting Agreement, the Company agrees to pay the
Consultant Thirty-Seven Thousand Five Hundred Dollars ($37,500) per month for
twelve (12) months. The first paymentS for January and February 2001 shall be
made within ten (10) business days of the Consultant's return of the executed
Consulting Agreement to the Company. Thereafter, payments will be made on the
last day of each month, from March 31, 2001. The Company will permit all of the
Consultant's stock options granted in June 1997, July 1998 and February 1999
under the 1995 Stock Option Plan to continue to remain outstanding and vest
until the expiration or earlier termination of the Consulting Agreement, except
that if Company terminates this Consulting Agreement without "cause" (as defined
in Paragraph 4, below), the Company will permit such stock options to continue
to vest as provided in Paragraph 4. The Consultant's May 1997 stock options
under the 1995 Stock Option Plan and $3.50 options that were issued outside the
1995 Stock Option Plan will not be covered by this arrangement.
4. TERMINATION. The Consulting Period may be terminated by written
notice by either party upon thirty (30) days' prior notice. The Consulting
Period may also be immediately terminated at the option of the Company prior to
the end of the Consulting Period, by notice to the Consultant, for cause.
"Cause" includes (i) dishonesty, gross negligence, or malfeasance by the
Consultant in the performance of his duties, (ii) acts which are materially
injurious to the reputation, business, or goodwill of the Company, (iii) the
failure of the Consultant to substantially perform his duties hereunder, or (iv)
the breach by Consultant of his obligations under this Consulting Agreement or
any other agreement with the Company. In the event of the termination of this
Consulting Agreement without cause by the Company, it shall pay the Consultant
the remainder of his compensation pursuant to the terms of Paragraph 3, above,
and the Consultant's stock options will continue to vest through the scheduled
expiration date of this Consulting Agreement. In the event of the termination of
this Consulting Agreement for cause by the Company, the Consultant shall be
entitled to all compensation for his consulting services which is due and
payable up to and including the date of termination. Payments for his consulting
services through the date of termination shall be the Consultant's sole remedy
under this Consulting Agreement.
5. INDEPENDENT CONTRACTOR. It is the express intention of the parties
that the Consultant render his services hereunder in the capacity of an
independent contractor and that the Company will not have the right to direct,
control, or supervise the Consultant in the performance of such services. In
keeping with this status, the Consultant will be free to control his method of
work within the framework of his obligation to the Company. The Consultant will
not be treated as an employee, officer, or agent of the Company for any purpose,
and, except as otherwise set forth in Section 3 hereof and the Separation
Agreement, the Consultant will not participate in or have any rights under any
employee benefit plans or other compensation arrangements maintained by the
Company for its employees. It is also understood that the Consultant will not
have the power or authority to supervise, direct or manage any employee of the
Company, or to enter into contracts on behalf of the Company or to borrow or
incur debts or liabilities on behalf of the Company of any kind or nature
whatsoever. The Consultant will be responsible for obtaining all necessary
licenses, permits and visas for the conduct of the Consultant's business and in
all other ways to fully comply with the requirements of applicable laws. The
Consultant will provide his own business cards indicating his trade name or,
with the permission of the Company, that he is on assignment to the Company.
6. CONFIDENTIALITY. The Consultant agrees to keep secret and retain in
the strictest confidence all confidential matters of the Company and its clients
and not to disclose any such information to anyone outside of the Company,
except in the course of performing the consulting services hereunder or as may
be required by law. The Consultant also agrees that all records, files and other
memoranda made or kept by the Consultant in connection with the consulting
services rendered by the Consultant under this Consulting Agreement shall be the
exclusive property of the Company. The Consultant agrees to return to the
Company all records, documents, files and other records relating to the business
of the Company and its clients and all copies thereof in whatever media. The
Consultant also agrees to execute the Company's standard form of non-disclosure
agreement for independent contractors.
7. SURRENDER OF BOOKS AND RECORDS. All documents, notes, data,
reference materials, marketing plans, customer lists, memoranda, course
materials, documentation, and records in any way incorporating or reflecting any
of the products and results of the Consultant's services hereunder, and all
proprietary rights therein, including without limitation copyrights, will, as
between the Company and the
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Consultant, belong to the Company, and the Consultant agrees to deliver all
copies of such materials in the Consultant's control to the Company upon request
or upon termination of the Consultant's engagement with the Company. Consultant
agrees that on the termination of his engagement with the Company in any manner,
he will participate in an exit interview conducted by a representative of the
Company.
8. PROPRIETARY INFORMATION OF FORMER EMPLOYERS. In providing services
to the Company under this Consulting Agreement, Consultant agrees that he will
not use or disclose any confidential or proprietary information or trade secrets
belonging to his former employers or any other persons, and will not bring into
the Company's premises any non-published document or any other property
belonging to any such persons, unless consented to in writing by such persons.
9. POWER TO ENTER INTO CONSULTING AGREEMENT . The Consultant represents
and warrants that he is free to enter into this Consulting Agreement and that
his performance of services under this Consulting Agreement will not result in a
breach of, or constitute a default under, any agreement or understanding to
which the Consultant is a party or by which he may be bound.
10. NON-COMPETITION. During the term of this Consulting Agreement, the
Consultant shall not, unless he receives the prior written consent of the
Company, directly or indirectly own an interest in, manage, operate, join,
control, lend money or render financial assistance to, as an officer, employee,
partner, stockholder, consultant or otherwise, any individual, partnership,
firm, corporation or other business organization or entity that, at such time
directly competes with, or intends to compete with, the Company or its
affiliates in the business of underwriting, purchasing, securitizing, selling or
servicing subprime credit grade secured loans or any other principal line of
business engaged in by the Company at the time of such termination (a "Competing
Company"). Notwithstanding the foregoing, the Consultant shall be entitled to
own securities of any entity if such securities are registered under Section
12(b) or (g) of the Securities Exchange Act of 1934, as amended, and, upon
approval of the Company's Board of Directors, the Consultant shall be entitled
to purchase securities of a Competing Company entity if such securities are
offered to investors irrespective of any employment or other participation in
the entity by the investor. In addition, the Consultant may engage in any of the
businesses described in Appendix B attached to his Separation Agreement and
General Release without violating this Section 10. 11. RIGHT TO INJUNCTIVE AND
EQUITABLE RELIEF. The Consultant's obligations not to disclose or use
Confidential Information and to refrain from competition described in Sections 6
and 10 of this Consulting Agreement are of a special and unique character which
gives them peculiar value. The Company cannot be reasonably or adequately
compensated in damages in an action at law in the event the Consultant breaches
such obligations. Therefore, the Consultant expressly agrees that the Company
shall be entitled to injunctive and other equitable relief without bond or other
security in the event of such breach, in addition to any other rights or
remedies which the Company may possess. Furthermore, the obligations of the
Consultant and the rights and remedies of the Company under this Section are
cumulative and in addition to, and not in lieu of, any obligations, rights, or
remedies created by applicable law relating to misappropriation or theft of
trade secrets or confidential information.
12. NO WITHHOLDING. The Consultant acknowledges that all payments to be
made hereunder will be made without any deduction by the Company for federal,
state, and local payroll, withholding and social security taxes, or any
unemployment and workers' compensation insurance costs, all of which taxes and
deductions will remain the exclusive responsibility of the Consultant.
13. NO ASSIGNMENT OR WAIVER. The Consultant may not assign any of his
rights or delegate any of his duties under this Consulting Agreement . Any
attempted assignment in violation of this provision will be void. The failure of
a party to insist upon strict adherence to any term of this Consulting Agreement
on any occasion will not be considered a waiver or deprive that party of the
right hereafter to insist upon strict adherence to that term or any other term
of this Consulting Agreement . Any waiver must be in writing.
14. ENTIRE AGREEMENT. This Consulting Agreement contains the entire
agreement between the Consultant and the Company with respect to the consulting
services to be provided by the Consultant. It may not be changed orally, but
only by a written agreement signed by each of the parties. This
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Consulting Agreement supersedes all prior discussions, negotiations, agreements,
and understandings between the parties with respect to the transactions
contemplated herein.
15. NOTICES. Any notice required or permitted to be given under this
Consulting Agreement will be in writing and will be (i) personally delivered,
(ii) transmitted by mail, postage prepaid, registered or certified, return
receipt requested, (iii) transmitted by an overnight courier of recognized
international reputation, or (iv) transmitted by telecopier (with confirmation
by airmail), to the other parties as follows, as elected by the party giving
such notice:
To the Company: New Century Financial Corporation
00000 Xxx Xxxxxx, Xxxxx 0000
Xxxxxx, XX 00000
Facsimile No.: (000) 000-0000
Attn: Xx. Xxxxxx X. Xxxx
To the Consultant: Xxxxxx Xxxxxx
2967 Xxxxxxxxx, G-411
Xxxxxx, XX 00000
Facsimile No.: (000) 000-0000
Except as otherwise specified herein, all notices and other
communications will be deemed to have been duly given on the date of actual
receipt when sent in accordance herewith. Any party hereto may change its
address for purposes hereof by notice as aforesaid to the other parties hereto.
16. GOVERNING LAW. This Consulting Agreement and the rights and
obligations of the parties hereunder will be governed by, and construed and
interpreted in accordance with, the laws of California without giving effect to
the choice of law provisions thereof. Solely for purposes relating to seeking
equitable relief set forth in Section 16 hereof, each party hereby submits to
the non-exclusive jurisdiction of the courts of California in respect of any
claim or matter arising under this Consulting Agreement .
17. ARBITRATION. All disputes, controversies, and claims between the
parties under this Consulting Agreement involving its interpretation, the
obligations of a party hereto, or the breach thereof will be settled by binding
arbitration in accordance with the employment dispute arbitration rules of
JAMS/ENDISPUTE. There will be one arbitrator mutually selected by the parties
within ten (10) business days from the date of notification made to one of the
parties of the other party's request for arbitration. If the parties fail to
agree upon an arbitrator within such ten (10) days, JAMS/ENDISPUTE will promptly
appoint the arbitrator in accordance with its rules. The place of the
arbitration will be in Orange County, California, United States of America. The
arbitrator will have at least 10 years experience in employment disputes. The
arbitration will commence within 30 business days after appointment of the
arbitrator and will continue uninterrupted unless otherwise suspended by the
arbitrator for good cause, for not longer than 90 days (including without
limitation any discovery permitted by the
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arbitrator). The arbitrator will, within such 90-day period, render a written
decision with findings of fact and conclusions of law and deliver such decision
to the parties. The resulting arbitration will be binding and judgment upon the
award rendered by the arbitrator may be enforced in the Superior Court of the
County of Orange, California or the United States District Court for the Central
District of California. The prevailing party in such arbitration, and subsequent
enforcement thereof, will be entitled to recover from the other party all costs
and expenses (including reasonable attorneys' fees and costs) incurred.
Notwithstanding the foregoing, nothing contained in this Section 16 will prevent
or be construed to prevent either party from seeking a temporary restraining
order or a preliminary or permanent injunction or any other form of interim,
provisional or temporary equitable relief in any court of competent
jurisdiction.
18. COUNTERPARTS. This Consulting Agreement may be executed in two or
more counterparts, each of which will be deemed an original, but all of which
together will constitute one and the same instrument.
19. HEADINGS. The headings of the Sections of this Consulting Agreement
are inserted for convenience of reference only and do not constitute a part
hereof or affect in any way the meaning or interpretation of this Consulting
Agreement .
20. SEVERABILITY. In the event that any one or more of the provisions of
this Consulting Agreement are held to be invalid, illegal, or unenforceable in
any respect, such invalidity, illegality, or unenforceability will not affect
any of the other provisions hereof, which will nevertheless remain in full force
and effect, and this Consulting Agreement will be construed as if such invalid,
illegal, or unenforceable provisions had never been contained herein.
IN WITNESS WHEREOF, the parties have executed this Consulting Agreement as
of the date first above set forth.
NEW CENTURY FINANCIAL CORPORATION
Dated:___________________
---------------------------------
Xxxxxx X. Xxxx
Chief Executive Officer
Dated:____________________ CONSULTANT
------------------------------------
Xxxxxx Xxxxxx
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