EXHIBIT 10.45
SHAREHOLDER AGREEMENT
SHAREHOLDER AGREEMENT, dated as of November 24, 1998, between U.S.
Bancorp, a Delaware corporation ("Purchaser"), and _________________
("Shareholder").
WHEREAS, Purchaser and New Century Financial Corporation, a Delaware
corporation (the "Company"), are entering into a Preferred Stock Purchase
Agreement, dated the date hereof (the "Purchase Agreement"), which provides for
the purchase of shares of the Company's Series 1998A Convertible Preferred Stock
by the Purchaser;
WHEREAS, Shareholder is the beneficial owner of certain shares of the
outstanding common stock, par value $.01 per share, of the Company (the "Common
Stock") as described herein; and
WHEREAS, as a condition to the willingness of Purchaser and the
Company to enter into the Purchase Agreement, Shareholder has agreed to certain
restrictions on his ability to sell the shares of Common Stock owned by him as
of the date hereof and any shares acquired by Shareholder after the date hereof
(including any shares acquired pursuant to the exercise of any rights to
purchase or otherwise acquire shares) (the "Shares") as provided in this
Agreement.
NOW THEREFORE, the parties hereby agree as follows:
1. Right of First Refusal.
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(a) If, after the date hereof, Shareholder should decide to sell,
transfer or otherwise dispose of any or all of the Shares (other than any
Permitted Transfers as defined in Section 3), Shareholder shall first offer to
sell such Shares to the Purchaser upon substantially the same terms and
conditions as Shareholder is proposing to sell such Shares to others.
(b) In the event that Shareholder is required to make an offer of
Shares to the Purchaser pursuant to this Agreement, Shareholder shall give the
Purchaser written notice of such offer, indicating the estimated price and the
general terms upon which Shareholder proposes to sell the Shares (the "Sale
Notice"). The Purchaser shall have ten business days from the date of receipt
of any Sale Notice to subscribe for the purchase of such Shares for the price
and upon the general terms specified in the Sale Notice by giving written notice
to Shareholder. The closing of the sale of the Shares to the Purchaser shall
take place within the later of (i) ten business days after the delivery of such
notice to Shareholder, or (ii) three business days after all necessary
regulatory or governmental filings, authorizations or approvals, if any,
required to consummate such purchase shall have been duly made or obtained and
all statutory waiting periods in respect thereof shall have expired; provided
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that, if such closing has not occurred within 90 days after the date of delivery
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of Purchaser's notice to the Shareholder, the Shareholder shall have the right
to sell such Shares without regard to the limitations of paragraph (c) below.
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The Purchaser agrees that it will use all reasonable efforts to make any such
filing and obtain any such authorization or approval as promptly as practicable.
In the event that making such filing or obtaining such authorization or approval
takes more than 60 days after the delivery of such notice to Shareholder, the
Purchaser will use reasonable efforts to arrange for a six-month line of credit
for the Shareholder.
(c) In the event that the Purchaser fails to subscribe for the
purchase of all of the Shares offered to it pursuant to this Agreement within
ten business days after the date of receipt of a Sale Notice, Shareholder shall
have 120 days thereafter to sell the Shares at a price which is not less than
95% of the price specified in the Sale Notice and upon terms otherwise no more
favorable to the purchasers thereof than the terms specified in the Sale Notice.
In the event Shareholder has not sold the Shares within such 120 day period,
Shareholder shall not thereafter sell any Shares without first offering such
Shares to the Purchaser as required by this Agreement.
2. No Preclusive Agreements. The Shareholder shall not enter into
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any agreement or understanding with any Person (as defined in Section 5),
including any voting, lock-up or option agreement, the effect of which would be
inconsistent with or violate the provisions and agreements contained in Section
5 or would preclude the Purchaser from exercising its rights pursuant to Section
5.
3. Permitted Transfers. "Permitted Transfers" mean (a) any transfer
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of Shares by gift or otherwise not for value if, at or before the transfer,
the transferee executes an instrument (i) acknowledging that the Shares being
acquired are subject to the provisions of this Agreement, and (ii) agreeing to
be bound by the terms and conditions of this Agreement with respect to the
Shares, (b) any sale of Shares by a pledgee or by Shareholder after a default in
an obligation secured by a bona fide pledge of the Shares by Shareholder as
security for a loan (including a margin loan), (c) any transfer by Shareholder
to Shareholder's spouse in conjunction with any consent decree or other
settlement order relating to Shareholder's pending divorce proceeding and (d)
sales of Shares in accordance with Rule 144 promulgated under the Securities Act
of 1933, or any successor rule ("Rule 144 Sales"), not to exceed in the
aggregate during any 365-day period 0.50% of the shares of Common Stock
outstanding at the beginning of the calendar year of such sale, provided that no
Trigger Date (as defined in Section 5) has occurred within the nine-month period
prior to any such Rule 144 Sale and provided further that prior to each such
Rule 144 Sale (x) Shareholder shall have given Purchaser notice (the "144 Sale
Notice") in accordance with the special notice provisions of Section 14 hereof
of his intention to sell Shares in accordance with this Section 3(d) (which 144
Sale Notice shall include the number of Shares (the "144 Shares") that
Shareholder intends to sell and Shareholder's offer to sell such 144 Shares to
Purchaser at the price determined pursuant to this Section 3(d)) and (y) prior
to the expiration of the Acceptance Window (as defined in the next sentence),
Purchaser has not communicated (by phone or by facsimile) its agreement to
purchase the 144 Shares from Shareholder. For purposes of this Section 3(d),
the Acceptance Window shall end at 3:30 p.m. Central Time on the day of receipt
by Purchaser of the 144 Sale Notice unless such 144 Sale Notice was received
after 2:00 p.m. Central Time on a business day or was received on a non-business
day, in which case the Acceptance Window would end at 8:30 a.m. Central Time on
the next business day following receipt by Purchaser of the 144 Sale Notice. If
Purchaser timely
agrees to purchase the 144 Shares, the purchase shall close by wire transfer of
same day funds within three business days of such agreement to purchase, and the
purchase price per share shall be the most recent sale price on the Nasdaq
market prior to time at which Purchaser communicated its acceptance to
Shareholder.
4. Representations and Warranties of Shareholder. Shareholder
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represents and warrants to Purchaser that:
(a) this Agreement has been duly executed and delivered by
Shareholder and constitutes a valid and legally binding obligation of
Shareholder enforceable in accordance with its terms;
(b) Shareholder is not subject to or obligated under any provision of
(i) any contract, (ii) any license, franchise or permit or (iii) any law,
regulation, order, judgment or decree which would be breached or violated by his
execution, delivery and performance of this Agreement and the consummation of
the transactions contemplated hereby;
(c) no authorization, consent or approval of, or any filing with, any
public body or authority is necessary for consummation by him of the
transactions contemplated by this Agreement;
(d) as of the date of this Agreement, the Shares consist of
_____________ shares of Common Stock (including ____________ shares of Common
Stock which represent shares that would be acquired by Shareholder if all of the
rights to purchase or otherwise acquire shares of Common Stock held by
Shareholder on the date hereof were exercised); and
(e) except as set forth on Schedule 1 hereto on the date hereof
Shareholder has, and he will have at the time of any purchase by Purchaser of
the Shares, good and marketable title to the Shares free and clear of all
claims, liens, charges, encumbrances and security interests.
5. Voting Agreement. The Shareholder hereby agrees that, if a
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Trigger Date (as defined herein) occurs on or before December 31, 2002, in
connection with the Acquisition Transaction relating to the Trigger Date, he
shall vote (or cause to be voted) at any meeting of the holders of the Common
Stock, however called, or in connection with any written consent of the holders
of the Common Stock, the Shares held of record by him or with respect to which
he has or shares the power to vote, whether now owned or hereafter acquired, (i)
in favor of approval of a Purchaser Transaction (as defined herein) and any
actions required in furtherance thereof and hereof; and (ii) except as otherwise
agreed to in writing in advance by Purchaser, against (A) any action or
agreement that is intended, or could reasonably be expected, to impede,
interfere with, delay, postpone, or materially adversely affect a Purchaser
Transaction; (B) any Competing Transaction; (C) any change in a majority of the
persons who constitute the board of directors of the Company; or (D) any change
in the capitalization of the Company or any amendment of the Company's
Certificate of Incorporation or Bylaws. Such Shareholder shall not enter into
any agreement or understanding with any Person (as defined herein) the effect of
which would be inconsistent with or violate the provisions and agreements
contained in this Section 5.
Notwithstanding the foregoing, the Shareholder shall have the right to vote at
any meeting of the Board of Directors of the Company (or by written consent of
the directors) in his capacity as a director of the Company in his sole
discretion and to comply with his fiduciary duties as a director of the Company
under applicable law.
For purposes of this Agreement, the following terms shall have the
following respective meanings:
"Acquisition Transaction" shall mean any of the following actions: (A) any
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extraordinary corporate transaction, such as a merger, consolidation or other
business combination involving the Company; or (B) a sale, lease or transfer of
a material amount of assets of the Company, or a reorganization,
recapitalization, dissolution or liquidation of the Company.
"Competing Transaction" shall mean an Acquisition Transaction involving any
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Person other than Purchaser or an affiliate of Purchaser.
"Person" shall mean an individual, corporation, partnership, joint venture,
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association, trust, unincorporated organization or other entity.
"Purchaser Transaction" shall mean an Acquisition Transaction by Purchaser
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or an affiliate of Purchaser.
"Trigger Date" shall mean the date the Company receives a bona fide
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proposal regarding an Acquisition Transaction (a "Proposal"), unless, within 15
days of the date Purchaser is notified in writing of all material terms of such
Proposal, the Purchaser has failed to make an offer that is similar to, and on
terms no less favorable to the Company and its shareholders than, such Proposal.
Notwithstanding the foregoing, a Trigger Event shall not be deemed to have
occurred if: (i) prior to the date of a definitive agreement with respect to a
Purchaser Transaction, the terms of the Proposal are improved or a new proposal
regarding an Acquisition Transaction that is financially superior to such
original proposal (a "Superior Proposal") is received by the Company and the
Purchaser fails to match such improved terms or such Superior Proposal within
five business days of Purchaser's receipt of written notice of all material
terms thereof; or (ii) the Purchaser withdraws its offer.
6. Irrevocable Proxy. The Shareholder agrees that he will, promptly
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following any Trigger Date, execute and deliver, or cause to be executed and
delivered, an irrevocable proxy, in form and substance reasonably satisfactory
to Purchaser, appointing Purchaser or any designee of Purchaser as such
Shareholder's agent, attorney and proxy, to vote (or cause to be voted) the
Shares held of record by him or with respect to which he has the power to vote,
whether now owned or hereafter acquired, in the manner provided in Section 5,
and to execute and deliver, or cause to be executed and delivered such
additional or further transfers, assignments, endorsements, consents and other
instruments as the Purchaser may reasonably request for the purpose of
effectively carrying out the transactions contemplated by Section 5 and to vest
the power to vote the Shares as contemplated by Section 5.
7. Term. This Agreement shall terminate on the earlier of December
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31, 2002 or the date on which all of Purchaser's rights under Section 8.4 of the
Purchase Agreement have terminated; provided that if a Trigger Date has occurred
prior to December 31, 2002, the Shareholder's agreement in Section 5 shall
survive with respect to such Trigger Date.
8. Capacity. The parties hereby agree that Shareholder is executing
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this Agreement solely in his individual capacity. Nothing contained in this
Agreement shall limit or otherwise affect Shareholder's conduct or exercise of
his fiduciary duties as a director of the Company.
9. Counterparts. This Agreement may be executed in separate
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counterparts, each of which will be an original and all of which taken together
shall constitute one and the same agreement, and any party hereto may execute
this Agreement by signing any such counterpart.
10. Severability. Whenever possible, each provision of this
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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 provisions of this Agreement
will not be affected or impaired thereby.
11. Successors and Assigns. This Agreement shall be binding upon and
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inure to the benefit of the parties hereto and their respective heirs, personal
representatives and, to the extent permitted by paragraph 12, successors and
assigns.
12. Assignment. This Agreement and the rights and obligations of the
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parties hereunder shall not be assignable, in whole or in part, by either party
without the prior written consent of the other party.
13. Modification, Amendment, Waiver or Termination. No provision of
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this Agreement may be modified, amended, waived or terminated except by an
instrument in writing signed by the parties to this Agreement. No course of
dealing between the parties will modify, amend, waive or terminate any provision
of this Agreement or any rights or obligations of any party under or by reason
of this Agreement.
14. Notices. Except for notices to be given in connection with a
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Rule 144 Sale in accordance with Section 3(d) herein, 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.
Notices to the Purchaser: with a copy to:
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U.S. Bancorp Xxxxxx & Xxxxxxx LLP
000 Xxxxxx Xxxxxx Xxxxx 000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000 Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxx X. Mitau, Esq. Attention: Xxxxxxxxx X. Xxxxx, Esq.
Telecopy: (000) 000-0000 Telecopy: (000) 000-0000
Notices to Shareholder: with a copy to:
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______________________
O'Melveny & Xxxxx LLP
c/o New Century Financial Corporation 000 Xxxxxxx Xxxxxx Drive, 17th Floor
00000 Xxx Xxxxxx, Xxxxx 0000 Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Xxxxxx, Xxxxxxxxxx 00000 Attention: Xxxxx X. Xxxxxxx, Esq.
Telecopy: 000-000-0000 Telecopy: 000-000-0000
Any party may change the address set forth above by notice to each other party
given as provided herein.
Any Rule 144 Sale Notice required to be given to Purchaser must be given by
a live telephone communication (i.e., not by voice-mail) directly to one of the
following persons or to such other persons as may be designated in writing from
time to time by Purchaser:
Xxx Xxxxxx, Telephone (000) 000-0000
Xxxxx Xxxxxxxx, Telephone (000) 000-0000
15. Governing Law. All matters relating to the interpretation,
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construction, validity and enforcement of this Agreement shall be governed by
the internal laws of the state of Delaware, without giving effect to any choice
of law provisions thereof.
16. Third-Party Benefit. Nothing in this Agreement, express or
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implied, is intended to confer upon any other person any rights, remedies,
obligations or liabilities of any nature whatsoever.
17. Survival of Representations and Warranties. Notwithstanding any
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investigation made by either of the parties hereto and notwithstanding the
Closing or any actions taken after the execution hereof, the representations and
warranties made in this Agreement shall survive for the term of this Agreement.
18. Remedies. The parties agree that money damages may not be an
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adequate remedy for any breach of the provisions of this Agreement and that any
party may, in its discretion, apply to any court of law or equity of competent
jurisdiction for specific performance and injunctive relief in order to enforce
or prevent any violations this Agreement, and any party against whom such
proceeding is brought hereby waives the claim or defense that such party has an
adequate remedy at law and agrees not to raise the defense that the other party
has an adequate remedy at law.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the day and year first above written.
U.S. BANCORP
By ________________________
Its ____________________
SHAREHOLDER
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