EXHIBIT 10.46
FIRST AMENDMENT
TO
EMPLOYMENT AGREEMENT
THIS FIRST AMENDMENT TO EMPLOYMENT AGREEMENT (the "First Amendment"),
dated as of November ___, 1998, is made and entered into by and among New
Century Financial Corporation, a Delaware corporation (the "Company"), and
________ (the "Executive").
R E C I T A L S
WHEREAS, the Company and the Executive are parties to that certain
Employment Agreement, effective as of June 1, 1997 (the "Agreement"); and
WHEREAS, the Company and the Executive desire to amend the Agreement
to extend the term of employment of the Executive under the Agreement;
NOW, THEREFORE, the parties agree as follows:
1. Term. Section 1.2 (a) of the Agreement shall be amended to read
----
in its entirety as follows:
"(a) December 31, 2002,".
2. No Waiver. No provision of this First Amendment may be modified,
---------
waived or discharged unless such waiver, modification or discharge is agreed to
in writing signed by the Executive and the Company. No waiver by either party
hereto at any time of any breach by the other party hereto of, or compliance
with, any condition or provision of this First Amendment to be performed by such
other party shall be deemed a waiver of similar or dissimilar provisions or
conditions at the same or at any prior or subsequent time.
3. Governing Law. This First Amendment shall be governed by and
-------------
construed in accordance with the laws of the State of California.
4. Counterparts. This First Amendment may be executed in one or more
------------
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
5. Legal Fees and Expenses. Should any party institute any action or
-----------------------
proceeding to enforce this First Amendment or any provision hereof, or for
damages by reason of any alleged breach of this First Amendment or any provision
hereof, or for a declaration of rights hereunder, the prevailing party in any
such action or proceeding shall be entitled to receive from the other party all
costs and expenses, including reasonable attorneys' fees, incurred by the
prevailing party in connection with such action or proceeding.
6. Assignment. This First Amendment and the rights, duties and
----------
obligations hereunder may not be assigned or delegated by any party without the
prior written consent of the
other party and any such attempted assignment and delegation shall be void and
be of no effect. Notwithstanding the foregoing provisions of this Section 6, the
Company may assign or delegate its rights, duties and obligations hereunder to
any person or entity which succeeds to all or substantially all of the business
of the Company through merger, consolidation, reorganization or other business
combination or by acquisition of all or substantially all of the assets of the
Company; provided that such person assumes the Company's obligations under this
First Amendment and the Agreement in accordance with Section 5.1 of the
Agreement.
7. Arbitration. Any controversy, dispute, claim or other matter in
-----------
question arising out of or relating to this First Amendment shall be settled
pursuant to the arbitration provision in Section 6.9 of the Agreement.
8. Future Amendments. The Company and the Executive acknowledge and
-----------------
agree that they intend to amend and/or restate the Agreement after the date
hereof; provided that any amendment to or restatement of the Agreement after the
date hereof shall be subject to the approval of the Compensation Committee of
the Board of Directors of the Company; provided, further that the nonsolicit and
noncompete provisions of the Agreement shall not be amended or restated without
the consent of U.S. Bancorp, a Delaware corporation ("USB"), but only if such
consent is required pursuant to Section 7.1(i) of that certain Preferred Stock
Purchase Agreement, dated as of October 18, 1998, between the Company and USB.
2
IN WITNESS WHEREOF, the parties hereto have executed this First
Amendment as of the date first above written.
NEW CENTURY FINANCIAL CORPORATION [NAME OF EXECUTIVE]
By:_______________________ ____________________________
Name:_____________________
Title:____________________
S-1
