Exhibit 99.4
AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
This AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT (the
"Agreement") is entered into as of April 28, 2000, by and among New Century
Financial Corporation, a Delaware corporation (the "Company"), and U.S.
Bancorp, a Delaware corporation ("USB") and U.S. Bank National Association
("US Bank").
WHEREAS, the Company and USB are a party to the Amended and Restated
Registration Rights Agreement dated as of July 26, 1999 (the "Registration
Rights Agreement") relating to the Company's agreements to register under the
Securities Act the shares of the Company's Common Stock issuable upon
conversion of the Company's outstanding Series 1998A Convertible Preferred
Stock and the Series 1999A Convertible Preferred Stock.
WHEREAS, in connection with a Subordinated Loan Agreement dated as
of April 28, 2000 between New Century Mortgage Corporation (a wholly owned
subsidiary of the Company) and US Bank, the Company has agreed to issue to US
Bank warrants to purchase up to an aggregate of 725,000 shares of the
Company's Common Stock, $.01 par value per share, upon the terms and subject
to the conditions set forth in the Warrant Issuance Agreement dated as of
April 28, 2000 among the Company, USB and US Bank.
WHEREAS, in connection with the issuance of such warrants, the
Company and USB desire to amend and restate the Registration Rights Agreement
to include certain arrangements with respect to the registration for public
sale under the Securities Act of 1933, as amended (the "Securities Act"), of
the shares of the Company's Common Stock issuable upon conversion of the
warrants and to make US Bank a party to such Agreement.
NOW, THEREFORE, in consideration of the mutual promises and
agreements contained herein, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the Company,
USB and US Bank hereby agree as follows:
1. DEFINITIONS.
1.1 "AFFILIATE" shall mean any person that directly or
indirectly controls or is controlled by, or is under common control with,
another specified person.
1.2 "COMMISSION" shall mean the Securities and Exchange
Commission or any other federal agency at the time administering the
Securities Act.
1.3 "COMPANY" shall mean New Century Financial
Corporation, a Delaware corporation.
1.4 "COMMON SHARES" shall mean the shares of common
stock, par value $.01 per share, authorized by the Company's Certificate of
Incorporation and any additional shares of common stock which may be
authorized in the future by the Company, and any stock into which such Common
Shares may hereafter be changed, and shall also include capital stock of any
other class of the Company which is not preferred as to dividends or assets
over any other class of stock of the Company and which is not subject to
redemption.
1.5 "FOUNDING MANAGERS" shall mean Xxxxxx X. Xxxx, Xxxx
X. Xxxxxxx, Xxxxxx X. Xxxxxx and Xxxxxx X. Xxxxxxxxx.
1.6 "OTHER SHAREHOLDERS" shall mean Xxxx X. Xxxxx and
Xxxx Xxxxxxx, and their successors in interest, under that certain Merger
Agreement, dated as of December 17, 1997, among the Company, NC Acquisition
Corp., PFW Corporation and the shareholders named therein.
1.7 "PREFERRED STOCK" shall mean all outstanding shares
of (a) the Series 1999A Convertible Preferred Stock, par value $.01 per
share, of the Company, and any securities (other than Common Shares) into
which such shares may hereafter be changed and (b) the Series 1998A
Convertible Preferred Stock, par value $.01 per share, of the Company, and
any Securities (other than the Common Shares) into which such shares may
hereafter be changed.
1.8 "PUBLIC OFFERING" shall mean any offering of Common
Shares to the public, either on behalf of the Company or any of its security
holders, pursuant to an effective registration statement under the Securities
Act.
1.9 "REGISTRABLE SECURITIES" shall mean (a) the Common
Shares at any time issued or subject to issuance upon the conversion of the
Preferred Stock, (b) the Common Shares at any time issued or subject to
issuance upon exercise or conversion of the Warrants, and (c) any additional
securities issued with respect to the above-described securities upon any
stock split, stock dividend, recapitalization, or similar event. Registrable
Securities shall cease to be Registrable Securities when (w) a registration
statement with respect to the sale of such securities shall have been
declared effective under the Securities Act and such securities shall have
been disposed of in accordance with such registration statement, (x) such
securities shall be eligible to be distributed pursuant to Rule 144(k) under
the Securities Act, (y) such securities shall have ceased to be outstanding,
or (z) such securities are transferred in a transaction in which the rights
hereunder are not assigned as permitted by Section 9.
1.10 "REGISTRATION EXPENSES" shall mean the expenses
described in Section 5.
1.11 "SECURITIES ACT" shall mean the Securities Act of
1933, as amended.
1.12 "STOCK PURCHASE AGREEMENT" shall mean the Preferred
Stock Purchase Agreement dated October 18, 1998 between the Company and USB.
1.13 "USB" shall mean U.S. Bancorp, a Delaware
corporation.
-2-
1.14 "WARRANTS" shall mean the warrants to purchase up to
725,000 Common Shares issued or to be issued pursuant to the Warrant Issuance
Agreement dated as of April 28, 2000 among the Company, USB and US Bank.
2. DEMAND REGISTRATION.
2.1 Subject to Sections 2.3, 2.4, 2.5 and 2.6, if at any
time the Company shall receive a written request therefor from the record
holder or holders of an aggregate of at least 51% of the Registrable
Securities, the Company shall prepare and file a registration statement under
the Securities Act covering such number of Registrable Securities as are the
subject of such request and shall use its best efforts to cause such
registration statement to become effective. Upon the receipt of a
registration request meeting the requirements of this Section 2.1, the
Company shall promptly give written notice to all other record holders of
Registrable Securities that such registration is to be effected. The Company
shall include in such registration statement such additional Registrable
Securities as such other record holders request in writing within fifteen
(15) days after the date of the Company's written notice to them. If (a) the
holders of a majority of the Registrable Securities for which registration
has been requested pursuant to this Section 2.1 determine for any reason not
to proceed with the registration at any time before the related registration
statement has been declared effective by the Commission, (b) such
registration statement, if theretofore filed with the Commission, is
withdrawn and (c) the holders of the Registrable Securities subject to such
registration statement agree to bear their own Registration Expenses incurred
in connection therewith and to reimburse the Company for the Registration
Expenses incurred by it in such connection or if such registration statement,
if theretofore filed with the Commission, is withdrawn at the initiative of
the Company, then the holders of the Registrable Securities shall not be
deemed to have exercised their demand registration right pursuant to this
Section 2.1.
2.2 At the request of the holders of a majority of the
Registrable Securities to be registered, the method of disposition of all
Registrable Securities included in such registration shall be an underwritten
Public Offering. The managing underwriter of any such Public Offering shall
be selected by the majority of the Registrable Securities, provided that such
managing underwriter is reasonably acceptable to the Company.
2.3 The Company shall be obligated to prepare, file and
cause to be effective not more than two registration statements pursuant to
Section 2.1.
2.4 Notwithstanding the foregoing, the Company may delay
initiating the preparation and filing of any registration statement requested
pursuant to Section 2.1 for a period not to exceed one hundred eighty (180)
days if, in the good faith judgment of the Company's Board of Directors,
filing the registration statement would reasonably be expected to have a
Material Adverse Effect (as defined in the Stock Purchase Agreement), which
Material Adverse Effect could reasonably be expected to be avoided by
delaying such filing for such period.
-3-
2.5 Notwithstanding anything to the contrary contained
herein, at any time within thirty (30) days after receiving a demand for
registration pursuant to Section 2.1, the Company may elect to effect an
underwritten primary registration in lieu of the requested registration. If
the Company so elects, the Company shall give prompt written notice to all
holders of Registrable Securities of its intention to effect such a
registration and shall afford such holders the rights contained in Article 3
with respect to "piggyback" registrations. In such event, the demand for
registration pursuant to Section 2.1 shall be deemed to have been withdrawn.
2.6 The Company shall not be obligated to effect a demand
registration within 180 days after the effective date of a previous demand
registration or a previous registration in which the holders of Registrable
Securities were given piggy-back registration rights pursuant to this
Agreement and in which there was no reduction in the number of Registrable
Securities requested to be included.
3. PIGGYBACK REGISTRATION.
3.1 Each time the Company shall determine to proceed with
the actual preparation and filing of a registration statement under the
Securities Act in connection with the proposed offer and sale for money of
any of its securities by it or any of its security holders (other than a
registration statement on Form X-0, Xxxx X-0 or other limited purpose form),
the Company will give written notice of its determination to all record
holders of Registrable Securities. Upon the written request of a record
holder of any Registrable Securities given within 15 days after the date of
the receipt of any such notice from the Company, the Company will, except as
herein provided, use its best efforts to cause all Registrable Securities the
registration of which is requested to be included in such registration
statement, all to the extent requisite to permit the sale or other
disposition by the prospective seller or sellers of the Registrable
Securities to be so registered; PROVIDED, HOWEVER, that nothing herein shall
prevent the Company from, at any time, abandoning or delaying in its sole and
absolute discretion any registration.
3.2 If any registration pursuant to Section 3.1 is
underwritten in whole or in part, the Company may require that the
Registrable Securities included in the registration be included in the
underwriting on the same terms and conditions as the securities otherwise
being sold through the underwriters. If, in the good faith judgment of the
managing underwriter of the Public Offering, marketing factors require a
limitation of the number of shares to be underwritten, the managing
underwriter may exclude some or all of the Registrable Securities from such
registration and underwriting. Any reduction in the number of securities of
the Company included in such registration and underwriting shall be borne (i)
first by the Founding Managers and the Other Shareholders pro rata based on
the number of shares, if any, for which registration was requested by the
Founding Managers and the Other Shareholders, (ii) second by the holders of
Registrable Securities pro rata based on the number of shares, if any, for
which registration was requested by such holders, and (iii) then equally by
the other holders of securities of the Company requested to be included in
such registration and underwriting, as a group, pro rata based on the number
of shares for which registration was requested by such holders. The
Registrable Securities which are thus excluded from the underwritten Public
Offering shall be
-4-
withheld from the market by the holders thereof for a period which the
managing underwriter reasonably determines is necessary in order to effect
the Public Offering.
4. REGISTRATION PROCEDURES. If and whenever the Company is
required by the provisions of Article 2 or Article 3 to effect a registration
of Registrable Securities under the Securities Act, the Company will use its
best efforts to effect the registration and sale of such Registrable
Securities in accordance with the intended methods of disposition specified
by the holders participating therein. Without limiting the foregoing, the
Company in each such case will, as expeditiously as possible:
4.1 In the case of a demand registration pursuant to
Section 2.1, prepare and file with the Commission the requisite registration
statement to effect such registration (including such audited financial
statements as may be required by the Securities Act or the rules and
regulations thereunder) and use its best efforts to cause such registration
statement to become effective; PROVIDED, HOWEVER, that as far in advance as
practical before filing such registration statement or any amendment thereto,
the Company will furnish counsel for the requesting holders of Registrable
Securities with copies of reasonably complete drafts of all such documents
proposed to be filed (including exhibits), and any such holder shall have the
opportunity to object to any information pertaining solely to such holder
that is contained therein and the Company will make the corrections
reasonably requested by such holder with respect to such information prior to
filing such registration statement or amendment.
4.2 Prepare and file with the Commission such amendments
and supplements to such registration statement and any prospectus used in
connection therewith as may be necessary to maintain the effectiveness of
such registration statement and to comply with the provisions of the
Securities Act with respect to the disposition of all Registrable Securities
included in such registration statement, in accordance with the intended
methods of disposition thereof, until the earlier of (a) such time as all of
the Registrable Securities included in such registration statement have been
disposed of in accordance with the intended methods of disposition by the
holder or holders thereof as set forth in such registration statement or (b)
180 days (or, if the filing was on a Form S-3 registration statement, 365
days) after such registration statement becomes effective; provided, that, in
the event the holder of Registrable Securities is required to discontinue
such holder's disposition of Registrable Securities pursuant to Section 4.11
hereof, such 180-days (or 365 days, if applicable) shall be extended for such
additional period as is equal to the period during which such holders was
required to discontinue such disposition.
4.3 Promptly notify each requesting holder and the
underwriter or underwriters, if any, of:
(a) when such registration statement or any prospectus
used in connection therewith, or any amendment or supplement thereto, has
been filed and, with respect to such registration statement or any
post-effective amendment thereto, when the same has become effective;
-5-
(b) any written request by the Commission for amendments
or supplements to such registration statement or prospectus;
(c) any notification received by the Company from the
Commission regarding the Commission's initiation of any proceeding with
respect to, or of the issuance by the Commission of, any stop order
suspending the effectiveness of such registration statement; and
(d) the receipt by the Company of any notification with
respect to the suspension of the qualification of any Registrable Securities
for sale under the applicable securities or blue sky laws of any jurisdiction.
4.4 Furnish to each holder of Registrable Securities
included in such registration statement such number of conformed copies of
such registration statement and of each amendment and supplement thereto, and
such number of copies of the prospectus contained in such registration
statement (including each preliminary prospectus and any summary prospectus)
and any other prospectus filed under Rule 424 promulgated under the
Securities Act relating to such seller's Registrable Securities, and such
other documents, as such holder may reasonably request to facilitate the
disposition of its Registrable Securities.
4.5 Use its best efforts to register or qualify all
Registrable Securities included in such registration statement under the
securities or "blue sky" laws of such states as each holder of Registrable
Securities shall reasonably request within twenty (20) days following the
original filing of such registration statement and to keep such registration
or qualification in effect for so long as such registration statement remains
in effect, and take any other action which may be reasonably necessary or
advisable to enable such holder to consummate the disposition in such states
of the Registrable Securities owned by such holder, except that the Company
shall not for any such purpose be required (a) to qualify generally to do
business as a foreign corporation in any jurisdiction wherein it would not
but for the requirements of this Section 4.5 be obligated to be so qualified,
(b) to consent to general service of process in any such jurisdiction or (c)
to subject itself to taxation in any such jurisdiction by reason of such
registration or qualification.
4.6 Use its best efforts to cause all Registrable
Securities included in such registration statement to be registered with or
approved by such other governmental agencies or authorities as may be
necessary to enable each holder thereof to consummate the disposition of such
Registrable Securities.
4.7 Notify each holder whose Registrable Securities are
included in such registration statement, at any time when a prospectus
relating thereto is required to be delivered under the Securities Act, of the
happening of any event as a result of which any prospectus included in such
registration statement, as then in effect, includes an untrue statement of a
material fact or omits to state any material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, and at the request
of any such holder promptly prepare and furnish to such holder a reasonable
number of copies of a supplement to or an amendment of such prospectus as may
be necessary so that, as thereafter delivered to each holder of such
Registrable Securities, such
-6-
prospectus shall not include an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances under which they
were made, not misleading.
4.8 Otherwise use its best efforts to comply with all
applicable rules and regulations of the Commission.
4.9 Use its best efforts to cause all Registrable
Securities included in such registration statement to be listed, upon
official notice of issuance, on any securities exchange or quotation system
on which any of the securities of the same class as the Registrable
Securities are then listed.
4.10 The Company may require each holder whose
Registrable Securities are being registered to, and each such holder, as a
condition to including Registrable Securities in such registration statement,
shall, furnish the Company and the underwriters with such information and
affidavits regarding such holder and the distribution of such Registrable
Securities as the Company and the underwriters may from time to time
reasonably request in writing in connection with such registration statement.
At any time during the effectiveness of any registration statement covering
Registrable Securities offered by a holder, if such holder becomes aware of
any change materially affecting the accuracy of the information contained in
such registration statement or the prospectus (as then amended or
supplemented) relating to such holder, it will immediately notify the Company
of such change.
4.11 Upon receipt of any notice from the Company of the
happening of any event of the kind described in Section 4.7, each holder will
forthwith discontinue such holder's disposition of Registrable Securities
pursuant to the registration statement relating to such Registrable
Securities until such holder receives the copies of the supplemented or
amended prospectus contemplated by Section 4.7 and, if so directed by the
Company, shall deliver to the Company all copies, other than permanent file
copies, then in such holder's possession of the prospectus relating to such
Registrable Securities.
4.12 As used in this Agreement, the term "best efforts"
shall not mean efforts which require the performing party to do any act that
is unreasonable under the circumstances or to expend any funds other than
reasonable out-of-pocket expenses incurred in satisfying its obligations
hereunder, including but not limited to the fees, expenses and disbursements
of its accountants, counsel and other professionals.
5. EXPENSES. With respect to any registration requested pursuant
to Article 2 (except as otherwise provided in such Article with respect to a
registration voluntarily terminated at the request of the requesting holders
of Registrable Securities) the Company shall bear all of the expenses
("Registration Expenses") incident to the Company's performance of or
compliance with its obligations under this Agreement in connection with such
registration including, without limitation, all registration, filing,
securities exchange listing and NASD fees, all registration, filing,
qualification and other fees and expenses or complying with state securities
or "blue sky" laws, all word processing, duplicating and printing expenses,
messenger and delivery expenses,
-7-
the fees and disbursements of counsel for the Company and of its independent
public accountants, including the expenses of any special audits or "cold
comfort" letters required by or incident to such performance and compliance,
premiums and other costs of any policies of insurance against liabilities
arising out of the Public Offering of the Registrable Securities being
registered obtained by the Company (it being understood that the Company
shall have no obligation to obtain such insurance) and any fees and
disbursements of underwriters customarily paid by issuers or sellers of
securities; but excluding underwriting discounts and commissions and transfer
taxes, if any, in respect of Registrable Securities and any fees and
disbursements of counsel and accountants to the holders of the Registrable
Securities, which discounts, commissions, transfer taxes, fees and
disbursements shall in any registration be payable by the holders of the
Registrable Securities being registered, PRO RATA in proportion to the number
of Registrable Securities being sold by them.
6. INDEMNIFICATION.
6.1 The Company will, to the full extent permitted by
law, indemnify and hold harmless each holder of Registrable Securities which
are included in a registration statement pursuant to the provisions of this
Agreement, and its directors, officers and partners and each other person, if
any, who controls such holder within the meaning of the Securities Act, from
and against any and all losses, claims, damages, expenses or liabilities,
joint or several (collectively, "Losses") to which such holder or any such
director, officer, partner or controlling person may become subject under the
Securities Act or otherwise, insofar as such Losses (or actions or
proceedings, whether commenced or threatened, in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of any
material fact contained in a registration statement prepared and filed
hereunder, any preliminary, final or summary prospectus contained therein or
any amendment or supplement thereto or any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to
make the statements therein (in the case of a prospectus, in the light of the
circumstances under which they were made) not misleading, and the Company
will reimburse the holder and each such director, officer, partner and
controlling person for any legal or other expenses reasonably incurred by
them in connection with investigating or defending against any such Losses
(or action or proceeding in respect thereof); PROVIDED, HOWEVER, that the
Company will not be liable in any such case to the extent that any such
Losses arise out of or are based upon (a) an untrue statement or alleged
untrue statement or omission or alleged omission made in conformity with
written information furnished by such holder specifically for use in the
preparation of the registration statement or (b) such holder's failure to
send or give a copy of the final prospectus to the persons asserting an
untrue statement or alleged untrue statement or omission or alleged omission
at or prior to the written confirmation of the sale of Registrable Securities
to such person if such statement or omission was corrected in such final
prospectus. Such indemnity shall remain in full force and effect regardless
of any investigation made by or on behalf of such holder or any such
director, officer, partner or controlling person of such holder and shall
survive the transfer of such securities by such holder. The Company shall
also indemnify each other person who participates (including as an
underwriter) in the offering or sale of Registrable Securities, their
officers and directors, and partners, and each other person, if any, who
controls any such participating person
-8-
within the meaning of the Securities Act to the same extent provided above
with respect to holders of Registrable Securities.
6.2 Each holder of Registrable Securities which are
included in a registration pursuant to the provisions of this Agreement will,
to the full extent permitted by law, indemnify and hold harmless the Company,
its officers, directors and each other person, if any, who controls the
Company within the meaning of the Securities Act from and against any and all
Losses to which the Company or any such officer, director or controlling
person may become subject under the Securities Act or otherwise, insofar as
such Losses (or actions or proceedings, whether commenced or threatened, in
respect thereof) arise out of or are based upon any untrue or alleged untrue
statement of any material fact contained in a registration statement prepared
and filed hereunder, any preliminary, final or summary prospectus contained
therein or any amendment or supplement thereto, or arise out of or are based
upon the omission or the alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein (in
the case of a prospectus, in the light of the circumstances under which they
were made) not misleading, in each case to the extent, but only to the
extent, that such untrue statement or alleged untrue statement or omission or
alleged omission was so made in reliance upon and in strict conformity with
written information furnished by such holder specifically for use in the
preparation of such registration statement. Such indemnity shall remain in
full force and effect regardless of any investigation made by or on behalf of
the Company or any such director, officer or controlling person of the
Company. The holder of Registrable Securities included in a registration
statement shall also indemnify each other person who participates (including
as an underwriter) in the offering or sale of Registrable Securities, their
officers and directors, and partners, and each other person, if any, who
controls any such participating person within the meaning of the Securities
Act to the same extent as provided above with respect to the Company. In no
event shall the liability of any holder under this Section 6.2 exceed the
gross proceeds received by such holder from the sale of their Registrable
Securities.
6.3 Promptly after receipt by a party indemnified
pursuant to the provisions of Section 6.1 or Section 6.2 of notice of the
commencement of any action involving the subject matter of the foregoing
indemnity provisions, such indemnified party will, if a claim thereof is to
be made against the indemnifying party pursuant to the provisions of Section
6.1 or Section 6.2, promptly notify the indemnifying party of the
commencement thereof; but the omission so to notify the indemnifying party
will not relieve the indemnifying party from any liability which it may have
to any indemnified party except to the extent that the indemnifying party is
actually prejudiced by such failure to give notice. In case any such action
is brought against any indemnified party, the indemnifying party shall have
the right to participate in, and, to the extent that it may wish, jointly
with any other indemnifying party, to assume the defense thereof, with
counsel reasonably satisfactory to such indemnified party; PROVIDED, HOWEVER,
that if the defendants in any action include both the indemnified party and
the indemnifying party and the indemnified party reasonably concludes that
there is a conflict of interest that would prevent counsel for the
indemnifying party from also representing the indemnified party, the
indemnified party shall have the right to select one separate counsel to
participate in the defense of such action on behalf of the indemnified party
or parties. After notice from the indemnifying party to such indemnified
party of its election so to assume the defense thereof, the indemnifying
party
-9-
will not be liable to such indemnified party pursuant to the provisions of
Section 6.1 or Section 6.2 for any legal or other expense subsequently
incurred by such indemnified party in connection with the defense thereof
unless (a) the indemnified party shall have employed counsel in accordance
with the proviso of the preceding sentence, (b) the indemnifying party shall
not have employed counsel reasonably satisfactory to the indemnified party to
represent the indemnified party within a reasonable time after the notice of
the commencement of the action or (c) the indemnifying party has authorized
the employment of counsel for the indemnified party at the expense of the
indemnifying party. If the indemnifying party is not entitled to, or elects
not to, assume the defense of a claim, it will not be obligated to pay the
fees and expenses of more than one counsel for the indemnified parties with
respect to such claim, unless in the reasonable judgment of any indemnified
party a conflict of interest may exist between such indemnified party and any
other indemnified parties with respect to such claim, in which event the
indemnifying party shall be obligated to pay the fees and expenses of
additional counsel or counsels for the indemnified parties, but only to the
extent necessary to cure such conflict of interest. No indemnifying party
shall consent to entry of any judgment or enter into any settlement which
does not include as an unconditional term thereof the giving by the claimant
or plaintiff to such indemnified party of a release from all liability in
respect to such claim or litigation without the consent of the indemnified
party. No indemnifying party shall be subject to any liability for any
settlement made without its consent. An indemnified party may at any time
elect to participate in the defense of any claim or proceeding at its own
expense.
7. UNDERWRITTEN OFFERINGS. If a distribution of Registrable
Securities pursuant to a registration statement is to be underwritten, the
holders whose Registrable Securities are to be distributed by such
underwriters shall be parties to such underwriting agreement. No requesting
holder may participate in such underwritten offering unless such holder
agrees to sell its Registrable Securities on the basis provided in such
underwriting agreement and completes and executes all questionnaires, powers
of attorney, indemnities and other documents reasonably required under the
terms of such underwriting agreement. If any requesting holder disapproves of
the terms of an underwriting, such holder may elect to withdraw therefrom and
from such registration by notice to the Company and the managing underwriter,
and each of the remaining requesting holders shall be entitled to increase
the number of Registrable Securities being registered to the extent of the
Registrable Securities so withdrawn in the proportion which the number of
Registrable Securities being registered by such remaining requesting holder
bears to the total number of Registrable Securities being registered by all
such remaining requesting holders.
8. STAND-OFF AGREEMENT. Each holder of Registrable Securities
agrees, so long as such holder holds at least 5% of the Company's outstanding
voting equity securities, in connection with a Public Offering, upon request
of the Company or the underwriters managing such Public Offering, not to
sell, make any short sale of, loan, grant any option for the purchase of, or
otherwise dispose of any Common Shares of the Company without the prior
written consent of the Company or such underwriters, as the case may be, for
such period of time (not exceeding 180 days) from the effective date of the
registration statement relating to such Public Offering as may be requested
by the underwriters; PROVIDED, HOWEVER, that all other persons with
registration rights (whether or not pursuant to this Agreement) and all of
the executive officers
-10-
and directors of the Company who own stock of the Company must also agree to
not less onerous restrictions.
9. ASSIGNMENT OF REGISTRATION RIGHTS. The rights to cause the
Company to register the Registrable Securities pursuant to this Agreement may
not be assigned by USB or US Bank except (a) to an Affiliate of USB or US
Bank without limitation or (b) to a transferee or assignee of Registrable
Securities representing or convertible into 5% or more of the Company's
outstanding Common Shares. In the case of either (a) or (b) USB or US Bank
shall, within a reasonable time after such transfer or assignment, furnish to
the Company written notice of the name and address of such transferee or
assignee and the securities with respect to which such registration rights
are being assigned. Any transferee asserting registration rights hereunder
shall be bound by the applicable provisions of this Agreement.
10. AMENDMENT. The Company shall not amend this Agreement without
the written consent of the holders of more than 50% of the Registrable
Securities.
11. TERMINATION. This Agreement, and all of the Company's
obligations hereunder (other than its obligations pursuant to Article 6,
which obligations shall survive such termination), shall terminate upon the
earlier to occur of (i) the date on which there are no Registrable Securities
outstanding and (ii) April 28, 2005.
12. SEVERABILITY. Whenever possible, each provision of this
Agreement shall be interpreted in such a manner as to be effective and valid
under applicable law but if any provision of this Agreement is held to be
invalid, illegal or unenforceable under any applicable law or rule, the
validity, legality and enforceability of the other provision of this
Agreement will not be affected or impaired thereby.
13. NOTICES. All notices, consents, requests, instructions,
approvals or other communications provided for herein shall be in writing and
delivered by personal delivery, overnight courier, mail or electronic
facsimile addressed to the receiving party at the address set forth herein.
All such communications shall be effective when received.
(a) If to any holder of any Registrable Securities
addressed to such holder at its address as shown on the books
of the Company, or at such other address as such holder may
specify by written notice to the Company, or
(b) if to the Company, at New Century Financial
Corporation, 00000 Xxx Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxxxxxxx
00000, Attention: Xxxx X. Xxxxxxx, Fax: 000-000-0000; or at
such other address as the Company may specify by written
notice to the holders of Registrable Securities hereunder.
14. COUNTERPARTS. This Agreement may be executed concurrently 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. Facsimile
signatures shall constitute original signatures for all purposes of this
Agreement.
-11-
15. SUCCESSORS AND ASSIGNS. Except as otherwise provided herein,
this Agreement shall inure to the benefit of and be binding upon the
successors and assigns of each of the parties.
16. GOVERNING LAW. This Agreement shall be governed by,
interpreted under, and construed and enforced in accordance with the internal
laws, and not the laws pertaining to the conflicts or choice of laws, of the
State of Delaware.
17. ENTIRE AGREEMENT; EFFECTIVENESS. This Agreement is intended by
the parties hereto to be the final expression of their agreement and
constitutes and embodies the entire agreement and understanding between the
parties hereto with regard to the subject matter hereof and is a complete and
exclusive statement of the terms and conditions thereof, and shall supersede
any and all prior oral or written correspondence, conversations,
negotiations, agreements and understandings relating to the same subject
matter. This Agreement shall take effect upon its execution by the Company,
USB and US Bank and shall amend and replace the Registration Rights
Agreement. Upon the effectiveness of this Agreement, the Registration Rights
Agreement shall be of no further force and effect.
-12-
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed and delivered by their proper and duly authorized representatives as
of the day and year first above written.
NEW CENTURY FINANCIAL
CORPORATION
By
----------------------------------
Its
----------------------------------
U.S. BANCORP
By
----------------------------------
Its
----------------------------------
U.S. BANK NATIONAL ASSOCIATION
By
----------------------------------
Its
----------------------------------
-13-
