Exhibit 10.76
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.
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
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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 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
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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 Consulting
Agreement supersedes all prior discussions, negotiations, agreements, and
understandings between the parties with respect to the transactions contemplated
herein.
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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 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
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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: 3/9/01
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/s/ Xxxxxx X. Xxxx
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Xxxxxx X. Xxxx
Chief Executive Officer
Dated: 3/9/01 CONSULTANT
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/s/ Xxxxxx Xxxxxx
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Xxxxxx Xxxxxx
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