EXHIBIT 7(b)
STOCK REPURCHASE AGREEMENT
This Stock Repurchase Agreement (this "Agreement"), dated as
of February 28, 2002, is entered into by and between New Century Financial
Corporation, a Delaware corporation (the "Company"), and U.S. Bancorp, a
Delaware corporation ("Seller").
RECITALS
WHEREAS, Seller desires to sell 7,144 shares of the Company's
Series 1999-A preferred stock, $0.01 par value per share (the "Repurchase
Shares"), to the Company, and the Company desires to repurchase all of the
Repurchase Shares upon the terms and subject to the conditions set forth below
(the "Repurchase"); and
WHEREAS, the Board of Directors of the Company has approved
the transactions contemplated by this Agreement.
In consideration of the premises and the agreements,
provisions and covenants herein contained, the parties hereto agree as follows:
1. REPURCHASE OBLIGATIONS. The Company will repurchase all of the
Repurchase Shares from Seller, and Seller will sell all of the Repurchase Shares
to the Company on the terms and conditions set forth in this Agreement. The
price per Repurchase Share shall be $979.72 (the "Repurchase Price").
2. CLOSING.
(a) Closing. The consummation of the transactions contemplated
by this Agreement (the "Closing") shall take place at the offices of O'Melveny &
Xxxxx LLP, 000 Xxxxxxx Xxxxxx Xxxxx, Xxxxxxx Xxxxx, Xxxxxxxxxx, or such other
location agreed upon by the parties, on February 28, 2002 or the first business
day thereafter as of which all of the conditions to the Closing have been
satisfied or waived in accordance with Section 6 below.
(b) Sellers' Obligations. Upon the Closing, Seller shall
deliver to the Company one or more stock certificates representing the
Repurchase Shares, duly endorsed for transfer, with appropriate stock powers
attached, properly signed and with any necessary documentary or transfer tax
stamps duly affixed and cancelled and free and clear of all liens, encumbrances,
security interests and claims, except for restrictions imposed by applicable
securities laws.
(c) Company's Obligation. Against delivery of the stock
certificates in accordance with Section 2(b) above, the Company shall deliver to
Seller an amount in cash (paid via wire transfer in immediately available funds
to an account designated by Seller in writing on or before the second business
day prior to the Closing) equal to $6,999,119.68 which is the Repurchase Price
multiplied by the number of Repurchase Shares to be repurchased by the Company
hereunder.
3. RIGHTS AS A STOCKHOLDER. Prior to the Repurchase, Seller
shall retain all rights as a stockholder of the Company with respect to the
Repurchase Shares, including, without limitation, the right to vote the
Repurchase Shares and the right to receive and retain any dividends thereon.
4. REPRESENTATIONS AND WARRANTIES OF SELLER. Seller hereby
represents and warrants to the Company, as follows:
(a) Good Title. Seller has valid title to the Repurchase
Shares being sold pursuant to this Agreement, free and clear of all
encumbrances, except for restrictions imposed by applicable securities laws; and
upon sale and delivery of, and payment for, such Repurchase Shares, as provided
herein at the Closing, Seller will convey to the Company good and valid title to
such Repurchase Shares free and clear of all encumbrances, except for
restrictions imposed by applicable securities laws.
(b) Corporate Existence; Authority. Seller is duly
incorporated and is validly existing as a corporation in good standing under the
laws of the State of Delaware with corporate power and authority to enter into
and perform its obligations under this Agreement and to consummate the
transactions contemplated hereby. The execution, delivery and performance of
this Agreement by Seller and the consummation by Seller of the transactions
contemplated hereby have been duly authorized by Seller.
(c) No Conflicts. None of the execution and delivery of this
Agreement by Seller, the sale of the Repurchase Shares by Seller, the
consummation of any of the other transactions contemplated herein, or the
fulfillment of the terms hereof, will violate the terms of, or result in a
default under, Seller's Certificate of Incorporation or Bylaws, any material
agreement to which Seller is a party or any provision of law to which such
Seller is subject.
(d) Enforceability. Upon the execution and delivery hereof by
the parties, this Agreement will be a binding obligation of Seller, enforceable
against Seller in accordance with its terms, except as may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting creditors' rights generally.
(e) Investment Representation. By reason of its business or
financial experience, Seller has the capacity to protect its own interests in
connection with the transactions contemplated hereby. Seller is aware of and has
considered the financial and market risk of selling the Repurchase Shares on the
terms set forth in this Agreement and is willing to forego through such sale the
potential for future economic gain that might be realized from owning the
Repurchase Shares.
5. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
(a) Corporate Existence; Authority. The Company is duly
incorporated and is validly existing as a corporation in good standing under the
laws of the State of Delaware with corporate power and authority to enter into
and perform its obligations under this Agreement and to consummate the
transactions contemplated hereby. The execution, delivery and performance
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of this Agreement by the Company and the consummation by the Company of the
transactions contemplated hereby have been duly authorized by the Company's
Board of Directors.
(b) No Conflicts. None of the execution and delivery of this
Agreement by the Company, the repurchase of the Repurchase Shares by the
Company, the consummation of any of the other transactions contemplated herein,
or the fulfillment of the terms hereof, will violate the terms of, or result in
a default under, the Certificate of Incorporation or Bylaws of the Company, any
material agreement to which the Company is a party or any provision of law to
which the Company is subject.
(c) Enforceability. Upon the execution and delivery hereof by
the parties, this Agreement will be a binding obligation of the Company,
enforceable against the Company in accordance with its terms, except as may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting creditors' rights generally.
6. CONDITIONS TO CLOSING.
(a) Seller's Conditions. The obligation of Seller to
consummate the transactions contemplated by this Agreement is subject to the
satisfaction or waiver of the following conditions:
(i) The representations and warranties of the Company
set forth in Section 5 hereof shall be true and correct in all material
respects on and as of the Closing Date, with the same force and effect
as though made on such date; and
(ii) The Company shall have fully performed all other
obligations and agreements and complied with all other covenants and
conditions contained in this Agreement to be performed or complied with
by it prior to the Closing Date.
(b) Company's Conditions. The obligation of the Company to
consummate the transactions contemplated by this Agreement is subject to the
satisfaction or waiver of the following conditions:
(i) The representations and warranties of Seller set
forth in Section 4 hereof shall be true and correct in all material
respects on and as of the Closing Date, with the same force and effect
as though made on such date; and
(ii) Seller shall have fully performed all other
obligations and agreements and complied with all other covenants and
conditions contained in this Agreement to be performed or complied with
by it prior to the Closing Date.
7. FURTHER ASSURANCES. From time to time after the Closing, at the
Company's request, Seller agrees to execute and deliver such other instruments
of conveyance and transfer and take such other actions as the Company may
reasonably request to effectively convey, transfer to and vest in the Company,
all right, title and interest in and to the Repurchase Shares.
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8. EXPENSES. Each party hereto agrees to bear its own fees and expenses
relating to the Repurchase.
9. GOVERNING LAW. This Agreement shall be construed with and enforced
in accordance with the laws of the State of California, without reference to the
choice of law principles thereof.
10. ASSIGNMENT. The rights and obligations under this Agreement may not
be assigned (a) by Seller, without the consent of the Company, or (b) by the
Company, without the consent of Seller.
11. ENTIRE AGREEMENT. This Agreement constitutes the entire and final
agreement and understanding between the parties with respect to the subject
matter hereof and supersedes all prior agreements relating to the subject matter
hereof which are of no further force and effect.
12. AMENDMENTS. No amendment or other modification of this Agreement
shall be effective unless set forth in writing and signed by the parties hereto.
13. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties have executed this Agreement the day
and year first above written.
NEW CENTURY FINANCIAL CORPORATION,
a Delaware corporation
By: /s/ Xxxxxxx Xxxxxxxx
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Name: Xxxxxxx Xxxxxxxx
Title: Executive Vice President
U.S. BANCORP,
a Delaware corporation
By: /s/ Xxxxxxxx X. Xxxxxx
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Name: Xxxxxxxx X. Xxxxxx
Title: SVP, Senior Portfolio Mgr.
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