EX-10.1






EXHIBIT 10.1




EMPLOYMENT AGREEMENT




THIS EMPLOYMENT AGREEMENT (this “Agreement”) is made and entered into this 25th day of
October 2006 (the “Effective Date”), by and between New Century Financial Corporation, a
Maryland corporation (the “Corporation”) and Tajvinder S. Bindra, an individual (the
“Executive”).



RECITALS




THE CORPORATION AND THE EXECUTIVE ENTER INTO THIS AGREEMENT on the basis of the following
facts, understandings and intentions:



A. The Corporation desires to employ the Executive as Executive Vice President, as of November
6, 2006, and Chief Financial Officer, as of November 15, 2006, of the Corporation to carry out the
duties and responsibilities described below, all on the terms and conditions hereinafter set forth.



B. The Executive desires to accept employment on such terms and conditions.



C. This Agreement shall govern the employment relationship between the Executive and the
Corporation during the Period of Employment (as defined in Section 2 below) and, as of the
Effective Date, will supersede and negate all previous understandings and agreements with respect
to such relationship between the parties.



NOW, THEREFORE, in consideration of the above recitals incorporated herein and the mutual
covenants and promises contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby expressly acknowledged, the Corporation and the Executive agree as
follows:



1. Retention and Duties.



1.1 Effective Date. This Agreement shall become effective as of the Effective Date.



1.2 Retention. The Corporation hereby agrees to engage and employ the Executive for
the Period of Employment (as defined in Section 2) on the terms and conditions expressly set forth
in this Agreement. The Executive hereby accepts and agrees to such engagement and employment, on
the terms and conditions expressly set forth in this Agreement.



1.3 Duties. During the Period of Employment (as defined in Section 2 below), the
Executive shall serve the Corporation as its Executive Vice President and Chief Financial Officer.
In such positions, the Executive shall be principally responsible for the general supervision,
direction and control of the financial aspects of the business, including, without limitation,
being principally responsible for setting the strategic directions of the Corporation’s financial
initiatives, formulating financial policy and plans, risk management, budgeting, and leading and
managing strategic initiatives and acquisitions, in each case subject to the general direction of
the Chief Executive Officer of the Corporation (the “CEO”) and the Corporation’s Board of
Directors (the “Board”). During the Period of Employment, the Executive shall have the
general powers and duties usually vested in the offices of executive vice president and chief
financial officer of a corporation of the size and nature of the Corporation and such other powers
and duties commensurate with his positions as the CEO or Board may assign from time to time.
During the Period of Employment, the Executive shall be a member of the Corporation’s executive
management committee or any successor thereto (“EMC”), if any. The Executive shall also be
subject to the corporate policies of the Corporation as they are in effect from time to time
throughout the Period of Employment (including, without limitation, the Corporation’s insider
trading policy, Code of Business Conduct and Ethics, and Code of Ethics for Senior Financial
Officers, as they may change from time to time), but no such provisions of such policies with
regard to termination of employees shall apply to the Executive except to the extent they
constitute Cause hereunder. During the Period of Employment, the Executive shall report directly
to the CEO.



1.4 No Other Employment; Minimum Time Commitment. During the Period of Employment,
the Executive shall devote substantially all of the Executive’s business time, energy and skill to
the performance of the Executive’s duties for the Corporation, and hold no other employment.
Nothing herein shall preclude the Executive from (i) serving on boards of directors of other
business entities as the Board approves in writing, (ii) engaging in a reasonable level of
charitable activities and community affairs, including serving on boards of directors or the
equivalent, and (iii) managing his personal and family investments and affairs, provided that such
activities do not materially interfere with the effective discharge of his duties and
responsibilities to the Corporation. The Corporation hereby agrees that the Executive’s service on
the boards of directors of any entity approved by the Board shall not be deemed a violation of the
non-competition and non-solicitation provisions of this Agreement. However, the Corporation shall
have the right (upon written notice) to require the Executive to resign from any board or similar
body on which he may now or in the future serve (or reduce his involvement) if the Board reasonably
determines in good faith that such service materially interferes with the effective discharge of
the Executive’s duties and responsibilities to the Corporation or that any business related to such
service is then in material competition with any business of any entity within the Corporation or
any of its affiliates. In the event any such resignation (or reduction in involvement) is required
of the Executive, the Executive shall so resign (or reduce his involvement) as soon as he can
practicably do so without violating any fiduciary duty he may have to such other organization.



1.5 No Breach of Contract. The Executive hereby represents to the Corporation that:
(i) the execution and delivery of this Agreement by the Executive and the Corporation and the
performance by the Executive of the Executive’s duties hereunder shall not constitute a breach of,
or otherwise contravene, the terms of any other agreement to which the Executive is a party or
otherwise bound; and (ii) that in the performance of his duties hereunder the Executive will not
use any information (including, without limitation, confidential information and trade secrets)
which the Executive is not legally and contractually free to disclose to the Corporation. The
Executive represents that any confidentiality, trade secret or similar agreement to which he is a
party or otherwise bound will not interfere with the effective performance by the Executive of his
duties hereunder.



1.6 Location. The Executive acknowledges that the Corporation’s principal executive
offices are currently located in Irvine, California. The Executive’s principal place of employment
shall be the Corporation’s principal executive offices, as (subject to Section 5.5(e)(vi)) they may
be moved from time to time at the discretion of the Corporation. The Executive agrees that he will
be regularly present at the Corporation’s principal executive offices, subject to travel in the
course of performing his duties for the Corporation, paid-time off and approved leaves of absence.



2. Period of Employment. Subject to earlier termination as provided in this Agreement, the
“Period of Employment” shall be the period commencing on November 6, 2006 (the
“Commencement Date”) and ending at the close of business on December 31, 2009 (the
“Termination Date”); provided, however, that the Period of Employment shall be
automatically extended for one (1) additional year on the Termination Date and each subsequent
anniversary of the Termination Date, unless either party gives notice, in writing, no less than
thirty (30) days prior to such date that the Period of Employment shall not be extended (or further
extended, as the case may be). The term “Period of Employment” shall include any extension thereof
pursuant to the preceding sentence and shall terminate on the Severance Date (as defined in
Section 5.3 hereof). Provision of notice that the Period of Employment shall not be extended or
further extended, as the case may be, shall not constitute a breach of this Agreement.



3. Compensation.



3.1 Base Salary. The Executive’s base salary for the Period of Employment (the
“Base Salary”) shall be at a rate of FIVE HUNDRED THOUSAND DOLLARS ($500,000) per annum and
shall be paid in accordance with the Corporation’s regular payroll practices in effect from time to
time, but not less frequently than in monthly installments. During the Period of Employment, the
CEO and/or the Compensation Committee of the Board (the “Compensation Committee”), as
applicable based on Corporation practice as in effect from time to time, will review the
Executive’s Base Salary on an annual basis (commencing in 2007) and may increase (but not decrease)
the Base Salary from the rate in effect immediately preceding any such change. For purposes of
this Agreement after any such increase, “Base Salary” shall mean such increased amount.



3.2 Annual Incentive Bonus. During the Period of Employment, the Executive shall be
eligible to receive an annual incentive bonus in an amount to be determined by the CEO and/or the
Compensation Committee, as applicable based on Corporation practice as in effect from time to time,
in good faith, taking into account the performance of the Corporation and the Executive (the
“Incentive Bonus”). With respect to each calendar year during the Period of Employment,
the Executive’s target Incentive Bonus opportunity shall equal TWO HUNDRED AND FIFTY PERCENT (250%)
of the Executive’s Base Salary for that year (the “Target Bonus”), with the actual bonus
amount of any such calendar year based on performance targets and objectives, and actual
performance against those targets and objectives, as determined in good faith by the CEO and/or the
Compensation Committee, as applicable based on Corporation practice as in effect from time to time,
for such calendar year. Notwithstanding the foregoing, for calendar year 2006, the Executive shall
be entitled to a pro-rata Incentive Bonus based on the Target Bonus for the period he is employed
by the Corporation during 2006, and for calendar 2007, the Executive shall be paid an Incentive
Bonus of no less than 200% of the Executive’s Base Salary for that year. Any Incentive Bonus
payable hereunder shall be paid at such times as such bonuses are generally paid to other senior
executives of the Corporation.



3.3 Annual Long-Term Incentive Awards. During the Period of Employment commencing in
the first fiscal quarter of each calendar year (commencing in 2007), the Executive shall receive
long-term incentive award opportunities that the CEO and/or the Compensation Committee, as
applicable based on Corporation practice as in effect from time to time, determines to have an
approximate aggregate value at the time of grant equal to at least TWO HUNDRED FIFTY PERCENT (250%)
of the Executive’s Base Salary in effect at that time. Such awards shall be subject to such other
terms and conditions as the CEO or the Compensation Committee, as applicable, may provide at the
time of grant of each applicable award (including, without limitation, vesting requirements). The
awards may be in such form(s) as the CEO or the Compensation Committee, as applicable, deems
appropriate at the time of grant (such as, without limiting other types of awards that may be
granted, stock options, restricted stock, restricted stock units, performance stock or units, and
dividend equivalents), and the aggregate grant for any one year may consist of more than one form
of award. Notwithstanding the foregoing, the Executive’s awards shall be in a form and have terms
and conditions that are generally consistent with the form and terms and conditions applicable to
other members of the EMC or, if there is no EMC, other senior executives of the Corporation (“Peer
Executives”). For purposes of clarity, the CEO is not a Peer Executive. The CEO or the
Compensation Committee, as applicable, may determine the grant date aggregate value of the awards
based on such methodology, and taking into account such facts and circumstances, as it in good
faith considers appropriate at the time of grant of the awards. The methodology and facts
considered may change from year to year but in all events shall be generally consistent with the
method and/or facts applicable to the same or similar type of award made to other Peer Executives.
Notwithstanding anything else to the contrary, Section 7.7 of the Corporation’s 2004 Performance
Incentive Plan (the “Plan”) (or any similar type of provision whether in an equity award agreement
or other plan) shall not apply to the Executive’s outstanding equity awards.



3.4 Sign-On Equity Award. No later than December 1, 2006, the Corporation shall grant
the Executive 15,000 restricted stock units (“Unit Grant”) pursuant to the Plan, with each
unit representing the right to receive one share of the Corporation’s common stock (subject to
adjustments for stock splits, stock dividends and similar events consistent with the terms of the
Plan). Except as otherwise provided in Section 5 hereof or to the extent earlier vesting is
provided in the Plan or the applicable award agreement, the Unit Grant shall vest over time, with
25% vesting on each of the first, second, third and fourth anniversaries of the Commencement Date
so long as the Executive is continuously employed with the Corporation through the applicable
vesting date; and once vested shall not, except as required by applicable law, be subject to
forfeiture by the Corporation or repayment by the Executive for any reason. The Unit Grant will
carry dividend equivalents from the grant date as provided in, and the Unit Grant shall be granted
pursuant to, the form of award agreement attached hereto as Exhibit A.



4. Benefits and Other Entitlements.



4.1 Retirement, Welfare and Fringe Benefits. During the Period of Employment, the
Executive shall be entitled to participate in all employee retirement, pension, deferred
compensation, supplemental retirement, change in control severance, and welfare benefit plans and
programs, and fringe benefit plans and programs, made available by the Corporation to the
Corporation’s senior executives generally on a basis that is generally consistent with the level
and terms of such benefits as provided to other Peer Executives, provided such participation shall
be in accordance with the eligibility and participation provisions of such plans and as such plans
or programs may be in effect from time to time. Notwithstanding anything else to the contrary,
with respect to any change in control severance, the Executive shall be treated no less favorably
than any other Peer Executive and, further, the Executive shall be designated a participant on
Schedule A of the Change in Control Severance Policy as in effect on the Effective Date and such
designated cannot be changed or modified without the Executive’s prior written consent; provided
that the foregoing shall not otherwise limit the Corporation’s ability to amend or terminate such
policy from time to time in accordance with its terms.



4.2 Reimbursement of Business Expenses. The Corporation shall reimburse the Executive
for all reasonable business expenses the Executive incurs during the Period of Employment in
connection with carrying out his duties to the Corporation under this Agreement, subject to the
Corporation’s expense reimbursement policies in effect from time to time. In addition, the
Corporation shall reimburse the Executive for or pay the reasonable legal fees incurred by the
Executive relating to the negotiation and preparation of this Agreement up to a maximum
reimbursement of $25,000.



4.3 Vacation and Other Leave. During the Period of Employment, the Executive shall
accrue and be entitled to take paid vacation at a rate of four (4) weeks per year (or such greater
vacation benefits as may be provided under the vacation policies generally applicable to other Peer
Executives in effect from time to time), subject to the Corporation’s policies regarding vacation
accruals (including, without limitation, limits on the amount of vacation that may be accrued and
untaken before future accruals cease). The Executive shall also be entitled to all other holiday
and leave pay generally available to other Peer Executives.



4.4 Relocation. The Corporation shall pay the Executive’s reasonable expenses related
to the relocation of his primary residence to Southern California (such relocation to be completed
not later than the first anniversary of the Commencement Date) as a Tier I executive in accordance
with the Corporation’s relocation policy for such executives as in effect as of the Effective Date
(“Relocation Policy”), with the following additions and modifications:



(a) The miscellaneous allowance under the Relocation Policy shall equal no less than three (3)
months of the Executive’s Base Salary;



(b) If the Executive’s employment is terminated for Cause, he shall not be required to repay
any amounts paid to him pursuant to the Relocation Policy and, upon all terminations, other than a
voluntary resignation by the Executive other than for Good Reason or Disability, the Corporation
shall pay the Executive any amounts due to him under such Policy which remain unpaid; and



(c) The application of any time limits in the Relocation Policy shall be extended to take into
account the fact the Executive and his family will not be required to relocate permanently to
California until the first anniversary of the Commencement Date.



5. Termination.



5.1 Termination by the Corporation. The Executive’s employment by the Corporation,
and the Period of Employment, may be terminated at any time by the Corporation: (i) with Cause (as
defined in Section 5.5), or (ii) on no less than thirty (30) days prior written notice to the
Executive, without Cause, or (iii) in the event of the Executive’s death, or (iv) in the event the
Executive has a Disability (as defined in Section 5.5). In addition, if the Corporation provides a
notice of non-renewal of the Period of Employment in accordance with Section 2 hereof, the
Executive’s employment shall terminate upon the expiration of the Period of Employment and, unless
the Corporation shall have offered the Executive a new employment agreement on terms substantially
similar to those set forth herein no later than fourteen (14) days prior to the expiration of the
Period of Employment, executed by the Corporation and irrevocable by the Corporation unless and
until the Executive has failed to deliver to the Corporation an executed copy of such agreement on
or prior to the date the Period of Employment expires, such termination shall be deemed to have
been a termination by the Corporation without Cause.



5.2 Termination by the Executive. The Executive’s employment by the Corporation, and
the Period of Employment, may be terminated at any time with or without Good Reason by the
Executive, on no less than thirty (30) days prior written notice to the Corporation.



5.3 Benefits Upon Termination. If the Executive’s employment by the Corporation is
terminated during the Period of Employment for any reason by the Corporation or by the Executive,
or upon or following the expiration of the Period of Employment (in any case, the date that the
Executive’s employment by the Corporation terminates in accordance with this Agreement is referred
to as the “Severance Date”), the Corporation shall have no further obligation to make or
provide to the Executive, and the Executive shall have no further right to receive or obtain from
the Corporation, any payments or benefits except:



(a) the Corporation shall pay the Executive (or, in the event of his death, the Executive’s
estate) any Accrued Obligations (as defined in Section 5.5) and the Executive (or, in the event of
his death, the Executive’s estate) shall be entitled to the provisions of Section 5.3(d) hereof;



(b) if, during the Period of Employment (but not following the expiration of the Period of
Employment), the Executive’s employment is terminated by the Corporation without Cause (including a
deemed termination of the Period of Employment by the Corporation without Cause as provided in the
last sentence of Section 5.1) or by the Executive for Good Reason (as defined in Section 5.5) (and,
in each case, other than due to either (i) the Executive’s death, or (ii) the Executive’s
Disability), the Corporation shall, subject to the following provisions of this Section 5.3 and the
provisions of Section 5.4, pay (in addition to the Accrued Obligations) and/or provide the
Executive the following severance benefits:




(i) The Corporation shall pay the Executive, subject to Section 23, an amount in cash,
subject to tax withholding and other authorized deductions, equal to (A) two (2) times the
Executive’s Base Salary at the highest annualized rate in effect during the one (1) year
period immediately prior to the Severance Date (determined without regard to any reduction
in Base Salary giving rise to a termination for Good Reason by the Executive hereunder),
plus (B) either (x) in the event the Executive’s Severance Date is prior to the payment of
all quarterly bonuses for 2007, one (1) times the Executive’s Target Bonus for 2007 (based
on the Base Salary as determined in clause A hereof ) or (y) in the event the Executive’s
Severance Date occurs after the payment of such bonuses, one (1) times the highest annual
Incentive Bonus paid to the Executive by the Corporation for any one of the three calendar
years preceding the calendar year in which the Severance Date occurs. For purposes of
subclause (y) of the foregoing clause (B), the amount of the annual Incentive Bonus paid to
the Executive for any calendar year shall include the portion of any such Incentive Bonus
that was paid in cash and any portion that was deferred at the election of the Executive
pursuant to a deferred compensation plan maintained by the Corporation. Except as provided
in the next two sentences, any amounts payable pursuant to this Section 5.3(b)(i) shall be
paid in a series of substantially equal monthly installments over a period commencing with
the Executive’s Severance Date and continuing through the second anniversary of the
Severance Date (the “Severance Period”). In the event the Executive’s employment
terminates in circumstances that entitle the Executive to payments pursuant to this Section
5.3(b)(i), and a Special Change in Control Event (as defined below) occurs after such
payments commence but before all such payments have been made, any remaining payments
otherwise due to the Executive pursuant to this Section 5.3(b)(i) after the date of such
Special Change in Control Event shall be paid in a single non-discounted lump sum payment no
later than thirty (30) days after the date of the Special Change in Control Event. To the
extent payment in a lump sum following a Special Change in Control Event would be in
violation of Section 409A of the of the Internal Revenue Code of 1986, as amended (the
“Code”), such payments shall instead be paid in a series of substantially equal
monthly installments during the Severance Period. A “Special Change in Control
Event” means a Change in Control Event that also constitutes a “change in the ownership
or effective control” of the Corporation or a change “in the ownership of a substantial
portion of the assets” of the Corporation that is a permissible distribution event under
Section 409A(a)(2)(A)(v) of the Code and any regulations and other guidance promulgated
thereunder.




(ii) The Corporation will pay or reimburse the Executive for his premiums charged to
continue medical coverage pursuant to the Consolidated Omnibus Budget Reconciliation Act
(“COBRA”), at the same or reasonably equivalent medical coverage for the Executive
(and, if applicable, the Executive’s eligible dependents) as in effect immediately prior to
the Severance Date, to the extent that the Executive elects such continued coverage;
provided that the Corporation’s obligation to make any payment or reimbursement pursuant to
this clause (ii) shall cease upon the first to occur of (A) eighteen (18) months after the
Severance Date; (B) the Executive’s death; (C) the date the Executive becomes eligible for
coverage under the health plan of a future employer; or (D) the date the Corporation ceases
to offer any group medical coverage to its active executive employees or the Corporation is
otherwise under no obligation to offer COBRA continuation coverage to the Executive.




(iii) The Corporation, subject to Section 23, shall provide the Executive and his
family with the same benefits as set forth in Section 4.4 hereof to relocate to the
Tri-State area; provided the Executive relocates to Tri-State area promptly after (and in no
event more than twelve (12) months after) the Severance Date.




(iv) Any and all equity-based awards, including, without limitation, the Unit Grant
(which shall be deemed to have been granted as of the Severance Date if such grant has not
been made by such date), any restricted stock, restricted stock units, performance units,
dividend equivalents or stock options, granted by the Corporation to the Executive and
outstanding immediately prior to such termination of employment shall continue to vest
pursuant to their original vesting schedule as if the Executive had remained employed
through the applicable vesting date; provided, however, that any such equity awards that are
subject to performance based vesting conditions with no opportunity to vest based solely on
continued employment for a period of time shall remain outstanding until the conclusion of
the applicable performance period and shall vest only (and to the extent) that the
applicable performance criteria are satisfied. Any exercise period applicable to any such
award that vests shall terminate no earlier than the thirtieth (30th) day
following the date of such portion of the award vests, subject to accelerated vesting and
termination in connection with a change in control of the Corporation or similar event
pursuant to the terms of the plan under which the awards were granted and/or the applicable
award agreement. The preceding provisions of this Section 5.3(b)(iv) do not limit the
Executive’s right to any accelerated vesting upon any other event or in any other
circumstances (such as upon a change in control event itself or retirement, to the extent
provided for under the terms of the applicable plan and/or award agreement), and shall
control over any contrary provision of any such plan or award agreement (whether entered
into before or after the date hereof) that does not provide for such accelerated vesting in
such circumstances. Except as provided in this Section 5.3(b)(iv), the effect of a
termination of the Executive’s employment on the Executive’s stock options and other
equity-based awards granted by the Corporation shall be determined under the terms of the
award agreement evidencing such option or other award or as otherwise provided herein.



(c) if, during the Period of Employment, the Executive’s employment is terminated by the
Corporation without Cause, by the Executive for Good Reason, or due to the Executive’s death or
Disability, or if the Executive’s employment is terminated by the Corporation or by the Executive
for any reason (other than by the Corporation for Cause) upon or at any time following the
Termination Date, the Corporation shall pay the Executive a pro-rated share of any bonus
(including, without limitation, the Incentive Bonus) otherwise payable to the Executive, for the
period from the beginning of the fiscal year in which the Severance Date occurs through the
Severance Date, based on the actual performance for such fiscal year. Notwithstanding the
foregoing, if the Severance Date occurs prior to January 1, 2008, the pro-rata bonus pursuant to
this Section 5.3(d) shall be deemed to be no less than the guaranteed bonus for 2007 (to the extent
any such amount remains unpaid) as set forth in Section 3.2 hereof. The bonus hereunder shall,
subject to Section 23, be paid when bonuses for such year are paid generally to the Corporation’s
active executives.



(d) The foregoing provisions of this Section 5.3 shall not affect: (i) the Executive’s receipt
of benefits otherwise due terminated employees under group insurance coverage consistent with the
terms of the applicable Corporation welfare benefit plan; (ii) the Executive’s rights under the
Consolidated Omnibus Budget Reconciliation Act to continue participation in medical, dental,
hospitalization and life insurance coverage; (iii) the Executive’s receipt of benefits otherwise
due in accordance with the terms of the Corporation’s 401(k) plan (if any), or any deferred
compensation and/or any supplemental executive retirement plan; (iv) any rights that the Executive
may have under and with respect to a stock option, restricted stock or other equity-based award, to
the extent that such award was granted before the Severance Date and to the extent expressly
provided in the written agreement evidencing such award; or (v) any right to indemnification the
Executive may have from the Corporation or the Executive’s right to be covered under any applicable
insurance policy, with respect to any liability the Executive incurred or might incur as an
employee, officer or director of the Corporation or its affiliates, including, without limitation,
pursuant to Section 22.



5.4 Release; Exclusive Remedy.



(a) This Section 5.4 shall apply notwithstanding anything else contained in this Agreement to
the contrary. As a condition precedent to any Corporation obligation to the Executive pursuant to
Section 5.3(b), the Executive shall, upon or promptly following his last day of employment with the
Corporation, provide the Corporation with a valid, executed, written release of claims (in the form
attached hereto as Exhibit B or such other form as the Corporation may reasonably require
in the circumstances, which other form shall be as attached hereto as Exhibit B but with
such changes as may be required or reasonably advisable in order to make the release enforceable
and otherwise compliant with applicable laws) and such release shall have not been revoked by the
Executive pursuant to any revocation rights afforded by applicable law. The Corporation shall have
no obligation to make any payment to the Executive pursuant to Section 5.3(b) unless and until the
release contemplated by this Section 5.4 becomes irrevocable by the Executive in accordance with
its provisions.



(b) The Executive agrees that the payments, benefits and entitlements contemplated by Section
5.3 shall, if the release contemplated by Section 5.4(a) is signed and the amounts, benefits or
entitlements paid or provided, constitute the exclusive and sole remedy for any termination of his
employment and in such case the Executive covenants not to assert or pursue any other remedies, at
law or in equity, with respect to any termination of employment (other than with respect to those
claims not released by the Executive in Exhibit B). The Corporation and the Executive acknowledge
and agree that there is no duty of the Executive to mitigate damages under this Agreement, and
there shall be no offset against any amounts due to the Executive under this Agreement on account
of any remuneration attributable to any subsequent employment that the Executive may obtain. All
amounts paid to the Executive pursuant to Section 5.3 shall be paid without regard to whether the
Executive has taken or takes actions to mitigate damages and, subject to all applicable laws and
regulations, shall not be subject to setoff, counterclaim, recoupment, defense or other right which
the Corporation may have against the Executive or others.



5.5 Certain Defined Terms.



(a) As used herein, “Accrued Obligations” means:




(i) any Base Salary that had accrued but had not been paid (including accrued and
unpaid vacation time) prior to the Severance Date;




(ii) any Incentive Bonus payable pursuant to Section 3.2 with respect to the calendar
year preceding the year in which the Severance Date occurs (if the Executive was employed by
the Corporation on the last day of that calendar year) that had not previously been paid;




(iii) any reimbursement due to the Executive pursuant to Section 4.2 or Section 4.4 for
expenses incurred by the Executive prior to the Severance Date; and




(iv) any other amounts or benefits required to be paid or provided by law or under any
employee benefit plan, program, policy or practice of the Corporation (other than benefits
in the nature of severance pay under any such plan, program, policy or practice).



Subject to Section 23, all amounts in (i), (ii) and (iii) shall be paid promptly after the
Severance Date and the amounts and benefits in (iv) shall be paid or provided in accordance with
their terms.



(b) As used herein, “Cause” shall mean that, during the Period of Employment, any of the
following events or contingencies exists or has occurred:




(i) the Executive is convicted of, or pleads guilty or nolo contendre to, a felony
(whether or not involving the Corporation or any of its affiliates), which constitutes a
crime of moral turpitude and is punishable by imprisonment in a state or federal correction
facility; or




(ii) the Executive commits an act involving willful misconduct of a material nature or
gross negligence with regard to the Corporation or any of its affiliates; or




(iii) the Executive commits an act of material fraud or material dishonesty with regard
to the Corporation or any of its affiliates; or




(iv) the Executive willfully and repeatedly fails or refuses to perform his duties as
required by this Agreement; provided that there shall be no determination of Cause pursuant
to this subparagraph (iv) unless the Executive shall have received written notice from the
CEO and/or the Board stating the nature of such failure or refusal and affording the
Executive at least ten (10) days to correct the act or omission asserted to constitute
Cause; or




(v) the willful and material violation by the Executive of any reasonable written rule,
regulation or policy of the Corporation applicable to senior executives of the Corporation
unless such violation is cured following written notice by the Board to the Executive.



However, no act or failure to act, on the Executive’s part shall be considered “willful”
unless done, or omitted to be done, by the Executive not in good faith and without reasonable
belief that the Executive’s action or omission was in the best interest of the Corporation. A
determination by the Board that Cause exists shall be effective only if approved by at least a
majority of the Board (not counting the Executive if he is then a member of the Board) voting in
person at a meeting at which Executive is entitled to be present (with counsel) and respond to any
basis that may be asserted as constituting Cause (a summary of which shall be supplied to the
Executive in writing at least five (5) days before any such meeting).



(c) As used herein, “Change in Control Event” shall have the meaning ascribed to the such term
in the Plan.



(d) As used herein, “Disability” shall mean a physical or mental impairment which has rendered
the Executive unable to perform the essential functions of his employment with the Corporation,
even with reasonable accommodation that does not impose an undue hardship on the Corporation, for
more than 180 calendar days in any 12-month period, unless a longer period is required by federal
or state law, in which case that longer period would apply. The determination of whether or not a
Disability exists for purposes of this Agreement shall be based upon the findings of a qualified
medical doctor reasonably agreed to by the Corporation and the Executive (or, in the event of the
Executive’s incapacity, his legal representative). In the absence of agreement between the
Corporation and the Executive, each party shall nominate a qualified medical doctor, and the two
doctors so nominated shall select a third qualified medical doctor, who shall make the
determination as to Disability.



(e) As used herein, “Good Reason” shall mean the occurrence of one or more of the following
without the Executive’s written consent:




(i) a material breach of this Agreement by the Corporation (with any reduction in the
Executive’s rate of Base Salary or Target Bonus or target equity opportunity as a percentage
of Base Salary as set forth in Section 3.3 hereof from the rate then in effect or any other
failure of the Corporation to pay the compensation due pursuant to this Agreement or
otherwise provide the annual and long-term incentives required pursuant to Sections 3.2 and
3.3 being deemed material); or




(ii) a material diminution in the Executive’s responsibilities, duties, authority or
status (when viewed together, in the aggregate) including, without limitation, any change in
title or position such that the Executive is no longer the Executive Vice President and
Chief Financial Officer of the Corporation or the Executive no longer reports directly to
the Chief Executive Officer; or




(iii) an assignment of duties to the Executive that are materially inconsistent with
the Executive’s positions and status; or




(iv) any failure to elect or reelect the Executive as Executive Vice President and
Chief Financial Officer of the Corporation or removal of the Executive from any such
position; or




(v) the failure of the Corporation to obtain the assumption in writing of its
obligations to perform this Agreement by any successor to all or substantially all of the
assets or business of the Corporation within fifteen (15) days upon a merger, consolidation,
sale or similar transaction and delivery of a copy of such assumption to the Executive; or




(vi) the assignment of the Executive to duties that would require him to relocate or
transfer his principal place of residence to a location outside of Orange County,
California, or that would make the continuance of his principal place of residence in Orange
County, California unreasonably difficult;



provided, however, that none of the events specified in this Section 5.5(e)
shall constitute Good Reason unless the Executive shall have notified the Corporation in writing
describing the events which constitute Good Reason and the Corporation shall have failed to cure
such event within a reasonable period, not to exceed ten (10) days, after the Corporation’s actual
receipt of such written notice. For purposes of clarity, a termination of the Executive’s
employment for Cause or due to the Executive’s death, Disability or voluntary retirement shall not
constitute Good Reason.



5.6 Section 280G Gross-Up. The Executive shall be entitled to the tax gross-up
provisions set forth in Appendix A of the Change in Control Severance Policy in effect as of the
Effective Date, which shall apply to any payments, benefits or entitlements hereunder or otherwise
without regard to whether the Executive’s employment has been terminated.



6. Means and Effect of Termination. Any termination of the Executive’s employment under
this Agreement shall be communicated by written notice of termination from the terminating party to
the other party. The notice of termination shall indicate the specific provision(s) of this
Agreement relied upon in effecting the termination. Upon the occurrence of any such termination in
accordance with this Agreement, the Executive shall be deemed to have resigned as a director and/or
officer of the Corporation and its affiliates as of the Severance Date without the giving of any
notice or taking of any other action.



7. Protective Covenants.



7.1 Confidential Information. As a material part of the consideration for the
Corporation’s commitment to the terms of this Agreement, the Executive hereby agrees that the
Executive will not at any time (whether during or after the Executive’s employment with the
Corporation), other than in the course of the Executive’s duties hereunder, disclose or use for the
Executive’s own benefit or purposes or the benefit or purposes of any other person, firm,
partnership, joint venture, association, corporation or other business organization, entity or
enterprise, any trade secrets, or other confidential data or information relating to customers,
development programs, costs, marketing, trading, investment, sales activities, promotion, credit
and financial data, financing methods, or plans of the Corporation or any of its affiliates
(collectively, “Confidential Information”); provided, however, that the
foregoing shall not apply to information which is generally known to the industry or the public,
other than as a result of the Executive’s breach of this covenant. The Executive further agrees
that the Executive will not retain or use for his account, at any time, any trade names, trademark
or other proprietary business designation used or owned in connection with the business of the
Corporation or any of its affiliates (the Corporation and its affiliates are referred to,
collectively, as the “Company Group”). Notwithstanding the foregoing, this Section 7.1
shall not apply (i) when disclosure of Confidential Information is required by law or by any court,
arbitrator, mediator or administrative or legislative body (including any committee thereof) with
actual or apparent jurisdiction to order the Executive to disclose or make available such
information (provided, however, that the Executive shall immediately notify the Corporation in
writing upon receiving a request for such information), (ii) with respect to any other litigation,
arbitration or mediation involving this Agreement or any other agreement between the parties,
including but not limited to enforcement of such agreement, or (iii) to any part of the
Confidential Information that becomes generally known to the public (other than by the breach of
this Agreement by the Executive).



7.2 Return of Confidential Material. The Executive shall promptly deliver to the
Corporation upon the termination of Executive’s employment with the Corporation, for any reason, or
any time the Corporation may so request, all memoranda, notes, records, reports, manuals, charts,
and any other documents of a confidential nature belonging to the Company Group, including all
copies, wherever and however located, including electronically, of such materials which the
Executive may then possess or have under the Executive’s control. Upon termination of the
Executive’s employment with the Corporation, the Executive shall not take any document, data, or
other material of any nature containing or pertaining to the proprietary information of the Company
Group; provided that the Executive may retain and use his rolodex and similar address books.



7.3 No Competing Employment. The Executive acknowledges and recognizes the highly
competitive nature of the businesses of the Corporation, the amount of sensitive and confidential
information involved in the discharge of the Executive’s position with the Corporation, and the
harm to the Corporation that would result if such knowledge or expertise was disclosed or made
available to a competitor. Based on that understanding, the Executive hereby expressly agrees
that, during the Period of Employment and for a period of one year following the Severance Date
(or, if longer, during any period in which the Executive is receiving severance or other payments
from the Corporation hereunder, or during any period in which any equity-based award granted by the
Corporation to the Executive remains outstanding and unvested), the Executive shall not, without
prior written approval of the Corporation, 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 time directly competes with the Company Group
in the business of, underwriting, purchasing, securitizing, selling or servicing residential
mortgage loans and lines of credit (a “Competing Company”). In addition, a business that
does not directly compete with the Company Group but is affiliated with an individual, partnership,
firm, corporation or other business organization or entity that does compete with the Company Group
shall not itself be considered a Competing Company so long as not more than one-third of the
aggregate gross revenues, and not more than one-third of the aggregate net income, of such business
and its affiliates (in each case, on a consolidated basis for the fiscal year immediately preceding
the fiscal year in which the Executive becomes involved with such business) is derived from the
business of underwriting, purchasing, securitizing, selling or servicing residential mortgage loans
and lines of credit. Notwithstanding the foregoing, the Executive shall be entitled to own up to
5% of the outstanding 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 Board,
the Executive 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. Furthermore, the Executive may hold less than five percent (5%) interest
in mutual funds, private equity funds, hedge funds and similar pooled entities that have interests
in competitive entities so long as such investments are completely passive; provided, however, that
in no event shall the Executive’s aggregate ownership (whether such ownership is direct or through
a fund or other entity) in any Competing Company exceed 5% of the outstanding securities of such
entity. For purposes of this Section 7.3 and Sections 7.4, 7.5 and 7.8, the vested portion of any
equity-based award shall be determined before giving effect to any accelerated vesting or continued
vesting that may otherwise be required pursuant to Section 5.3(b) or any similar provision of the
applicable award agreement.



7.4 Prohibition on Solicitation of Customers. During the Period of Employment and for
a period of one year following the Severance Date (or, if longer, during any period in which the
Executive is receiving severance or other payments from the Corporation hereunder or during any
period in which any equity-based award granted by the Corporation to the Executive remains
outstanding and unvested), the Executive shall not, directly or indirectly, either for the
Executive or for any other person or entity other than in the ordinary course of the Corporation’s
business for the benefit of the Corporation, solicit any person or entity to terminate such
person’s or entity’s contractual and/or business relationship with the Company Group, nor shall the
Executive interfere with or disrupt or attempt to interfere with or disrupt any such relationship.
The foregoing shall not be violated by general advertising of a customary nature not targeted at
such persons or entities, nor by serving as a reasonable and customary reference upon request.



7.5 Prohibition on Solicitation of the Company’s Employees or Independent Contractors
After Termination. During the Period of Employment and for a period of one year following the
Severance Date (or, if longer, during any period in which the Executive is receiving severance or
other payments from the Corporation hereunder, or during any period in which any equity-based award
granted by the Corporation to the Executive remains outstanding and unvested), the Executive will
not directly or indirectly solicit any of the Company Group’s employees, agents, or independent
contractors to leave the employ of the Company Group for a Competing Company. The foregoing shall
not be violated by general advertising of a customary nature not targeted at such employees, agents
or independent contractors, nor be serving as a reasonable and customary reference upon request.



7.6 Right to Injunctive and Equitable Relief. The Executive’s obligations not to
disclose or use Confidential Information and to refrain from the solicitations described in this
Section 7 are of a special and unique character, which gives them a peculiar value. The
Corporation cannot be reasonably or adequately compensated in damages in an action at law in the
event the Executive breaches such obligations, and the breach of such obligations would cause
irreparable harm to the Corporation. Therefore, the Executive expressly agrees that the
Corporation shall be entitled to injunctive and other equitable relief subject to the limitations
contained in this Section 7.6 without bond or other security in the event of such breach in
addition to any other rights or remedies which the Corporation may possess. Furthermore, the
obligations of the Executive and the rights and remedies of the Corporation under this Section 7
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. Notwithstanding anything to the contrary contained in this Agreement, the Corporation
shall not have the right to seek injunctive relief against the Executive to enforce the provisions
of Section 7.3 following the Severance Date. Notwithstanding anything to the contrary contained in
this Agreement, the maximum period for which the Corporation shall have the right to seek
injunctive relief against the Executive to enforce the provisions of Sections 7.4 and 7.5 is two
years following the Severance Date.



7.7 Cooperation. The Executive agrees that during the Period of Employment and
thereafter, he shall respond to all reasonable inquiries of the Corporation about any matters
concerning the Corporation or its affairs that occurred or arose during the Executive’s employment
by the Corporation, and the Executive further agrees to reasonably cooperate with the Corporation
in investigating, prosecuting and defending any charges, claims, demands, liabilities, causes of
action, lawsuits or other proceedings by, against or involving the Corporation relating to the
period during which the Executive was employed by the Corporation or relating to matters of which
the Executive has or should have knowledge or information. The Executive further agrees that,
except as required by law, the Executive will at no time voluntarily serve as a witness or offer
written or oral testimony against the Corporation in conjunction with any complaints, charges or
lawsuits brought against the Corporation by or on behalf of any current or former employees, or any
governmental or administrative agencies related to his period of employment and, except as
otherwise prohibited by law, will provide the Corporation with notice of any subpoena or other
request for such information or testimony. To the extent any such cooperation is requested by the
Corporation, the Corporation shall promptly reimburse the Executive, to the extent permitted by
law, for any reasonable expenses incurred by him in connection with his cooperation hereunder,
including, without limitation, reasonable expenses for travel, meals and lodging, and reasonable
attorneys’ fees to the extent that the Executive reasonably believes that separate representation
for him is warranted by the circumstances.



7.8 Remedy for Breach of Section 7.



(a) In the event the Executive willfully breaches Section 7.3 in any material manner, and
notwithstanding anything else to the contrary, then, in addition to any other legal remedies the
Corporation may have, the Corporation shall have the right, in its sole discretion, to take any or
all of the following actions: (i) terminate the payments and benefits otherwise due pursuant to
Section 5.3(b)(i) and/or (ii) terminate any and all stock options and other equity-based awards
theretofore granted to the Executive by the Corporation (to the extent not vested prior to such
breach by the Executive); provided, however, that if a cure is reasonably possible in the
circumstances, the Corporation shall provide the Executive with written notice of the breach and
shall not take any of the above actions unless the Executive fails to cure the breach within ten
(10) business days’ after such notice, and the Executive agrees to not exercise any such stock
options after the Corporation provides the Executive with such notice and before such cure is made.
Notwithstanding anything else to the contrary, including without limitation, pursuant to any
applicable award agreement or plan, any determination of whether the Executive’s equity awards
granted on or prior to December 31, 2009 are subject to forfeiture for violating any restrictions
on the Executive’s activities during or following employment shall be determined solely in
accordance with this Section 7.8(a).



(b) In the event the Executive willfully breaches any provision of Section 7 (other than
Section 7.3) in any material manner, and notwithstanding anything else to the contrary, then, in
addition to any other legal remedies the Corporation may have, the Corporation shall have the
right, in its sole discretion, to terminate the payments and benefits otherwise due pursuant to
Section 5.3(b)(i) (but not any payments or benefits provided pursuant to Section 5.3(b)(ii));
provided, however, that if a cure is reasonably possible in the circumstances, the Corporation
shall provide the Executive with written notice of the breach and shall not terminate such payments
and benefits unless the Executive fails to cure the breach within ten (10) business days’ after
such notice.



8. Withholding Taxes. Notwithstanding anything else herein to the contrary, the
Corporation may withhold (or cause there to be withheld, as the case may be) from any amounts
otherwise due or payable under or pursuant to this Agreement such federal, state and local income,
employment, or other taxes as may be required to be withheld pursuant to any applicable law or
regulation.



9. Assignment. This Agreement 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 9, in the event of a merger, consolidation, or transfer or
sale of all or substantially all of the assets of the Corporation with or to any other
individual(s) or entity, this Agreement shall, subject to the provisions hereof, be binding upon
and inure to the benefit of such successor and such successor shall discharge and perform all the
promises, covenants, duties, and obligations of the Corporation hereunder. Following any such
transaction, “Corporation” for purposes of this Agreement, except for Section 7 hereof, shall mean
such successor entity, including, without limitation, its ultimate parent, if the successor is a
subsidiary of another entity.



10. Number and Gender. Where the context requires, the singular shall include the plural,
the plural shall include the singular, and any gender shall include all other genders.



11. Section Headings. The section headings of, and titles of paragraphs and subparagraphs
contained in, this Agreement are for the purpose of convenience only, and they neither form a part
of this Agreement nor are they to be used in the construction or interpretation thereof.



12. Governing Law. This Agreement, and all questions relating to its validity,
interpretation, performance and enforcement, as well as the legal relations hereby created between
the parties hereto, shall be governed by and construed under, and interpreted and enforced in
accordance with, the laws of the State of California, notwithstanding any California or other
conflict of law provision to the contrary. (The Executive and the Corporation are sometimes
referred to in this Agreement as the “parties” hereto.)



13. Severability. If any provision of this Agreement or the application thereof is held
invalid, the invalidity shall not affect other provisions or applications of this Agreement which
can be given effect without the invalid provisions or applications and to this end the provisions
of this Agreement are declared to be severable.



14. Entire Agreement. This Agreement embodies the entire agreement of the parties hereto
respecting the matters within its scope. As of the Effective Date, this Agreement shall supersede
all agreements of the parties hereto that are prior to or contemporaneous with the Effective Date
and that directly or indirectly bear upon the subject matter hereof. Any negotiations,
correspondence, agreements, proposals or understandings prior to the Effective Date relating to the
subject matter hereof shall be deemed to have been merged into this Agreement, and to the extent
inconsistent herewith, such negotiations, correspondence, agreements, proposals, or understandings
shall be deemed to be of no force or effect. There are no representations, warranties, or
agreements, whether express or implied, or oral or written, with respect to the subject matter
hereof, except as expressly set forth herein. This Agreement is an integrated Agreement.



15. Modifications. This Agreement may not be amended, modified or changed (in whole or in
part), except by a formal, definitive written agreement expressly referring to this Agreement,
which agreement is executed by both of the parties hereto.



16. Waiver. Neither the failure nor any delay on the part of a party to exercise any
right, remedy, power or privilege under this Agreement shall operate as a waiver thereof, nor shall
any single or partial exercise of any right, remedy, power or privilege preclude any other or
further exercise of the same or of any right, remedy, power or privilege, nor shall any waiver of
any right, remedy, power or privilege with respect to any occurrence be construed as a waiver of
such right, remedy, power or privilege with respect to any other occurrence. No waiver shall be
effective unless it is in writing, specifically referencing the provision being waived, and is
signed by the party asserted to have granted such waiver.



17. Arbitration. Any controversy arising out of or relating to this Agreement, its
enforcement or interpretation, or because of an alleged breach, default, or misrepresentation in
connection with any of its provisions, or any other controversy arising out of the Executive’s
employment, including, but not limited to, any state or federal statutory claims, shall be
submitted to arbitration in Orange County, California, before a sole arbitrator selected from
Judicial Arbitration and Mediation Services, Inc., Orange County, California, or its successor
(“JAMS”), or if JAMS is no longer able to supply the arbitrator, such arbitrator shall be
selected from the American Arbitration Association, and shall be conducted in accordance with the
provisions of California Code of Civil Procedure §§ 1280 et seq. as the exclusive forum for
the resolution of such dispute; provided, however, that provisional injunctive relief may, but need
not, be sought by either party to this Agreement in a court of law while arbitration proceedings
are pending, and any provisional injunctive relief granted by such court shall remain effective
until the matter is finally determined by the Arbitrator. Final resolution of any dispute through
arbitration may include any remedy or relief which the Arbitrator deems just and equitable,
including any and all remedies provided by applicable state or federal statutes. At the conclusion
of the arbitration, the Arbitrator shall issue a written decision that sets forth the essential
findings and conclusions upon which the Arbitrator’s award or decision is based. Any award or
relief granted by the Arbitrator hereunder shall be final and binding on the parties hereto and may
be enforced by any court of competent jurisdiction. The parties hereto acknowledge and agree that
they are hereby waiving any rights to trial by jury in any action, proceeding or counterclaim
brought by either of the parties hereto against the other in connection with any matter whatsoever
arising out of or in any way connected with this Agreement or the Executive’s employment. The
parties agree hereto that the Corporation shall be responsible for payment of the forum costs of
any arbitration hereunder, including the Arbitrator’s fee. The Executive and the Corporation
further agree that in any proceeding to enforce the terms of this Agreement, each party shall bear
its own attorneys’ fees and costs. Notwithstanding this provision, the parties hereto may mutually
agree to mediate any dispute prior to or following submission to arbitration.



18. Notices.




(a) All notices, requests, demands and other communications required or permitted
under this Agreement shall be in writing and shall be deemed to have been duly given
and made if (i) delivered by hand, (ii) otherwise delivered against receipt
therefor, or (iii) sent by registered or certified mail, postage prepaid, return
receipt requested. Any notice shall be duly addressed to the parties hereto as
follows:




(i) if to the Corporation:



New Century Financial Corporation



18400 Von Karman Avenue, Suite 1000



Irvine, California 92612



Attn: General Counsel



with a copy to:



New Century Financial Corporation



18400 Von Karman Avenue, Suite 1000



Irvine, California 92612



Attn: Lead Director



if to the Executive, at the last address of the Executive on the books of the Corporation; with a
copy to:




Morrison Cohen LLP




909 Third Avenue, 27th Floor




New York, NY 10022




Attn: Robert M. Sedgwick, Esq.




(b) Any party may alter the address to which communications or copies are to be sent
by giving notice of such change of address in conformity with the provisions of this
Section 18 for the giving of notice. Any communication shall be effective when
delivered by hand, when otherwise delivered against receipt therefor, or five (5)
business days after being mailed in accordance with the foregoing.



19. Legal Counsel; Mutual Drafting. Each party recognizes that this is a legally binding
contract and acknowledges and agrees that they have had the opportunity to consult with legal
counsel of their choice. Each party has cooperated in the drafting, negotiation and preparation of
this Agreement. Hence, in any construction to be made of this Agreement, the same shall not be
construed against either party on the basis of that party being the drafter of such language.
Executive agrees and acknowledges that he has read and understands this Agreement, is entering into
it freely and voluntarily, and has been advised to seek counsel prior to entering into this
Agreement and has had ample opportunity to do so.



20. Provisions that Survive Termination. The provisions of Sections 5.3, 5.4, 5.5, 5.6, 7
through 19, 21 through 23, this Section 20, and any other section hereof that by its terms is
required to survive under the circumstances shall survive any termination of the Period of
Employment.



21. Counterparts. This Agreement may be executed in any number of counterparts, each of
which shall be deemed an original as against any party whose signature appears thereon, and all of
which together shall constitute one and the same instrument. This Agreement shall become binding
when one or more counterparts hereof, individually or taken together, shall bear the signatures of
all of the parties hereto reflected hereon as the signatories. Photographic copies of such signed
counterparts may be used in lieu of the originals for any purpose.



22. Indemnification.



(a) The Corporation agrees that (i) if the Executive is made a party, or is threatened to be
made a party, to any threatened or actual action, suit or proceeding whether civil, criminal,
administrative, investigative, appellate or other (a “Proceeding”) by reason of the fact that he is
or was a director, officer or employee of the Corporation or is or was serving at the request of
the Corporation as a director, officer, member, employee, agent, manager, consultant or
representative of another person or (ii) if any claim, demand, request, investigation, controversy,
threat, discovery request or request for testimony or information (a “Claim”) is made, or
threatened to be made, that arises out of or relates to the Executive’s service in any of the
foregoing capacities, whether arising before or after the Effective Date, then the Executive shall
promptly be indemnified and held harmless by the Corporation to the fullest extent legally
permitted or authorized by the Corporation’s Articles of Amendment and Restatement, bylaws or Board
resolutions or, if greater, by the laws of the State of Maryland, against any and all costs,
expenses, liabilities and losses (including, without limitation, attorney’s fees, judgments,
interest, expenses of investigating, defending or obtaining indemnity with respect to any
Proceeding or Claim, penalties, fines, ERISA excise taxes or penalties and amounts paid or to be
paid in settlement) incurred or suffered by the Executive in connection therewith, and such
indemnification shall continue as to the Executive even if he has ceased to be a director, officer
or employee of the Corporation or a director, officer, member, employee, agent, manager, consultant
or representative of such other person and shall inure to the benefit of the Executive’s heirs,
executors and administrators. To the extent permitted by law, the Corporation shall advance to the
Executive all costs and expenses incurred by him in connection with any such Proceeding or Claim
within thirty (30) days after receiving written notice requesting such an advance. Such notice
shall include, to the extent required by applicable law, an undertaking by the Executive to repay
the amount advanced if he is ultimately determined not to be entitled to indemnification against
such costs and expenses.



(b) Neither the failure of the Corporation (including its Board, independent legal counsel or
stockholders) to have made a determination in connection with any request for indemnification or
advancement under Section 22(a) that the Executive has satisfied any applicable standard of
conduct, nor a determination by the Corporation (including its Board, independent legal counsel or
stockholders) that the Executive has not met any applicable standard of conduct, shall create a
presumption that the Executive has not met an applicable standard of conduct.



(c) During the Period of Employment and for a period of six (6) years thereafter, the
Corporation shall keep in place a directors and officers’ liability insurance policy (or policies)
providing comprehensive coverage to the Executive to the extent that the Corporation provides such
coverage for any other present or former senior executive or director of the Corporation.



(d) The provisions of this Section 22 shall apply to the estate, executor, administrator,
heirs, legatees or devisees of the Executive.



23. Section 409A.



(a) Notwithstanding any provision of this Agreement to the contrary, if the Executive is a
“specified employee” as defined in Section 409A of the Code (“Code Section 409A”), the Executive
shall not be entitled to any payments upon a termination of his employment until the earlier of (i)
the date which is six (6) months after his termination of employment for any reason other than
death, or (ii) the date of the Executive’s death. Furthermore, with regard to any benefit to be
provided upon a termination of employment, to the extent required by Code Section 409A, the
Executive shall pay the premium for such benefit during the aforesaid period and be reimbursed by
the Corporation therefor promptly after the end of such period. Any amounts otherwise payable to
the Executive following a termination of his employment that are not so paid by reason of this
Section 23(a) shall be paid as soon as practicable after the date that is six (6) months after the
termination of the Executive’s employment (or, if earlier, the date of the Executive’s death). The
provisions of this Section 23(a) shall only apply if, and to the extent, required to comply with
Code Section 409A in a manner such that the Executive is not subject to additional taxes and/or
penalties under Code Section 409A.



(b) The Corporation shall use its best efforts to design, administer and timely amend (to the
extent necessary) its benefit plans, programs, agreements, awards and arrangements with, covering,
granted to, or in which the Executive participates so as to comply with the requirements of Code
Section 409A. Any amendment required pursuant to the preceding sentence shall be designed to
preserve the intended benefits to the maximum extent reasonably possible. To the extent the
Executive’s consent is required to effect any such amendment, the Executive agrees to so consent.



(c) To the extent that this Agreement or any plan, program or award of the Corporation in
which the Executive participates or which has been or is granted by the Corporation to the
Executive, as applicable, is subject to Code Section 409A, the Corporation and the Executive agree
that the terms and conditions of plan, program or award shall be construed and interpreted to the
maximum extent reasonably possible, without altering the fundamental intent of the agreement, to
comply with Code Section 409A.



24. Corporation’s Representations. The Corporation represents and warrants that (i) the
execution, delivery and performance of this Agreement by the Corporation has been fully and validly
authorized by all necessary corporate action, and (ii) the officer signing this Agreement on behalf
of the Corporation is duly authorized to do so.



[The remainder of this page has intentionally been left blank.]




1




IN WITNESS WHEREOF, the Corporation and the Executive have executed this Agreement as
of the Effective Date.



“CORPORATION”



New Century Financial Corporation,


a Maryland corporation



By: /s/ Brad A. Morrice



Print Name: Brad A. Morrice

Title: President and Chief Financial Officer



“EXECUTIVE”



/s/ Tajvinder S. Bindra


Tajvinder S. Bindra






2






EXHIBIT A




3




FORM OF RESTRICTED STOCK UNIT AGREEMENT

NEW CENTURY FINANCIAL CORPORATION

2004 PERFORMANCE INCENTIVE PLAN

STOCK UNIT AWARD AGREEMENT




THIS STOCK UNIT AWARD AGREEMENT (this “Agreement”) is dated as of [     , 2006] by and
between New Century Financial Corporation, a Maryland corporation (the “Corporation”), and
[     ] (the “Participant”).



W I T N E S S E T H




WHEREAS, pursuant to the New Century Financial Corporation 2004 Performance Incentive Plan
(the “Plan”), the Corporation has granted to the Participant effective as of the date hereof (the
“Award Date”), a credit of stock units under the Plan (the “Stock Unit Award” or “Award”), upon the
terms and conditions set forth herein and in the Plan.



NOW THEREFORE, in consideration of services rendered and to be rendered by the Participant,
and the mutual promises made herein and the mutual benefits to be derived therefrom, the parties
agree as follows:



1. Defined Terms. Capitalized terms used herein and not otherwise defined herein
shall have the meaning assigned to such terms in the Plan.



2. Grant. Subject to the terms of this Agreement, the Corporation hereby grants to
the Participant a Stock Unit Award with respect to an aggregate of [     ] stock units (subject
to adjustment as provided in Section 7.1 of the Plan) (with any dividends credited pursuant to
Section 5(b), the “Stock Units”). As used herein, the term “stock unit” shall mean a non-voting
unit of measurement which is deemed for bookkeeping purposes to be equivalent to one outstanding
share of the Corporation’s Common Stock (subject to adjustment as provided in Section 7.1 of the
Plan) solely for purposes of the Plan and this Agreement. The Stock Units shall be used solely as
a device for the determination of the payment to eventually be made to the Participant if such
Stock Units vest pursuant to Section 3. The Stock Units shall not be treated as property or as a
trust fund of any kind.



3. Vesting. Subject to Section 8 and Section 9 below, the Award shall vest and become
nonforfeitable with respect to one-fourth of the total number of Stock Units (subject to adjustment
under Section 7.1 of the Plan) on each of the first, second, third and fourth anniversaries of the
Vesting Commencement Date. The “Vesting Commencement Date” shall be the date the Participant
commenced employment with the Corporation and its Subsidiaries.



4. Continuance of Employment. Except as otherwise provided in Section 8 below, the
vesting schedule requires continued employment or service through each applicable vesting date as a
condition to the vesting of the applicable installment of the Award and the rights and benefits
under this Agreement. Employment or service for only a portion of the vesting period, even if a
substantial portion, will not entitle the Participant to any proportionate vesting or avoid or
mitigate a termination of rights and benefits upon or following a termination of employment or
services except as provided in Section 8 below or under the Plan.



Nothing contained in this Agreement or the Plan constitutes an employment or service
commitment by the Corporation, affects the Participant’s status as an employee at will who is
subject to termination without cause, confers upon the Participant any right to remain employed by
or in service to the Corporation or any Subsidiary, interferes in any way with the right of the
Corporation or any Subsidiary at any time to terminate such employment or services, or affects the
right of the Corporation or any Subsidiary to increase or decrease the Participant’s other
compensation or benefits. Nothing in this paragraph, however, is intended to adversely affect any
independent contractual right of the Participant without his consent thereto.



5. Dividend and Voting Rights.



(a) Limitations on Rights Associated with Units. The Participant shall have no rights
as a stockholder of the Corporation, no dividend rights (except as expressly provided in Section
5(b) with respect to Dividend Equivalent Rights) and no voting rights, with respect to the Stock
Units and any shares of Common Stock underlying or issuable in respect of such Stock Units until
such shares of Common Stock are actually issued to and held of record by the Participant. No
adjustments will be made for dividends or other rights of a holder for which the record date is
prior to the date of issuance of the stock certificate.



(b) Dividend Equivalent Rights Distributions. In the event that the Corporation pays
an ordinary cash dividend on its Common Stock and the related dividend payment record date occurs
at any time after the Award Date and before all of the Stock Units subject to the Award have either
been paid pursuant to Section 7 or terminated pursuant to Section 8, the Corporation shall credit
the Participant as of such record date with an additional number of Stock Units equal to (i) the
per-share cash dividend paid by the Corporation on its Common Stock with respect to such record
date, multiplied by (ii) the total number of outstanding and unpaid Stock Units (including any
dividend equivalents previously credited hereunder) (with such total number adjusted pursuant to
Section 7.1 of the Plan and/or Section 9 hereof) subject to the Award as of such record date,
divided by (iii) the fair market value of a share of Common Stock (as determined under the Plan) on
such record date. Any Stock Units credited pursuant to the foregoing provisions of this Section
5(b) shall be subject to the same vesting, payment and other terms, conditions and restrictions as
the original Stock Units to which they relate. No crediting of Stock Units shall be made pursuant
to this Section 5(b) with respect to any Stock Units which, as of such record date, have either
been paid pursuant to Section 7 or terminated pursuant to Section 8.



6. Restrictions on Transfer. Neither the Stock Unit Award, nor any interest therein
or amount or shares payable in respect thereof may be sold, assigned, transferred, pledged or
otherwise disposed of, alienated or encumbered, either voluntarily or involuntarily. The transfer
restrictions in the preceding sentence shall not apply to (a) transfers to the Corporation, (b) the
designation of a beneficiary to receive benefits in the event of the Participant’s death or, if the
participant has died, transfers to the Participant’s beneficiary, or, in the absence of a validly
designated beneficiary, transfers by will or the laws of descent and distribution or (c) if the
Participant has suffered a disability, permitted transfers on behalf of the Participant by his
legal representative.



7. Timing and Manner of Payment of Stock Units. On or as soon as administratively
practical following each vesting of the applicable portion of the total Award pursuant to Section
3, Section 8 or Section 9, the Corporation shall deliver to the Participant a number of shares of
Common Stock (either by delivering one or more certificates for such shares or by entering such
shares in book entry form, as determined by the Corporation in its discretion) equal to the number
of Stock Units subject to this Award that vest on the applicable vesting date, unless such Stock
Units terminate prior to the given vesting date pursuant to Section 8. The Corporation’s
obligation to deliver shares of Common Stock or otherwise make payment with respect to vested Stock
Units is subject to the condition precedent that the Participant or other person entitled under the
Plan to receive any shares with respect to the vested Stock Units deliver to the Corporation any
representations or other documents or assurances required pursuant to Section 8.1 of the Plan. The
Participant shall have no further rights with respect to any Stock Units that are paid or that
terminate pursuant to Section 8.



8. Effect of Termination of Employment.



(a) Termination of Employment. The Participant’s Stock Units shall terminate to the
extent such units have not become vested prior to the first date the Participant is no longer
employed by the Corporation or one of its Subsidiaries (which if the Participant is subject to a
written employment agreement with the Corporation or a Subsidiary as of the Award Date (the
“Employment Agreement”) shall be the termination date as defined in the Employment Agreement),
regardless of the reason for the termination of the Participant’s employment with the Corporation
or a Subsidiary, whether with or without cause, voluntarily or involuntarily. If any unvested
Stock Units are terminated hereunder, such Stock Units shall automatically terminate and be
cancelled as of the applicable termination date without payment of any consideration by the
Corporation and without any other action by the Participant, or the Participant’s beneficiary or
personal representative, as the case may be.



(b) Employment Agreement. Notwithstanding Section 8(a), if the Participant would be
entitled to accelerated or continued vesting of the Stock Units under the Employment Agreement in
connection with the termination of the Participant’s employment that is greater in the
circumstances of the termination than any accelerated or continued vesting of the Stock Units that
would occur in the circumstances under this Agreement or under the Plan, then the provisions of the
Employment Agreement shall control with respect to such accelerated or continued vesting.



9. Adjustments Upon Specified Events. The Administrator may accelerate payment and
vesting of the Stock Units in such circumstances as it, in its sole discretion, may determine. The
Stock Units are also subject to accelerated vesting in accordance with Article VII of the Plan;
provided that Section 7.7 of the Plan shall not be applicable to this Award. In addition, upon the
occurrence of certain events relating to the Corporation’s stock contemplated by Section 7.1 of the
Plan (including, without limitation, an extraordinary cash dividend on such stock), the
Administrator shall make adjustments in accordance with such section in the number of Stock Units
then outstanding and the number and kind of securities that may be issued in respect of the Award.
No such adjustment shall be made with respect to any ordinary cash dividend for which dividend
equivalents are credited pursuant to Section 5(b).



10. Tax Withholding. Subject to Section 8.1 of the Plan, upon any distribution of
shares of Common Stock in respect of the Stock Units, the Corporation shall automatically reduce
the number of shares to be delivered by (or otherwise reacquire) the appropriate number of whole
shares, valued at their then fair market value (with the “fair market value” of such shares
determined in accordance with the applicable provisions of the Plan), to satisfy any withholding
obligations of the Corporation or its Subsidiaries with respect to such distribution of shares at
the minimum applicable withholding rates. In the event that the Corporation cannot legally satisfy
such withholding obligations by such reduction of shares, or in the event of a cash payment or any
other withholding event in respect of the Stock Units, the Corporation (or a Subsidiary) shall be
entitled to require a cash payment by or on behalf of the Participant and/or to deduct from other
compensation payable to the Participant any sums required by federal, state or local tax law to be
withheld with respect to such distribution or payment.



11. Notices. Any notice to be given under the terms of this Agreement shall be in
writing and addressed to the Corporation at its principal office to the attention of the Secretary,
and to the Participant at the Participant’s last address reflected on the Corporation’s records, or
at such other address as either party may hereafter designate in writing to the other. Any such
notice shall be given only when received, but if the Participant is no longer an employee of the
Corporation, shall be deemed to have been duly given by the Corporation when enclosed in a properly
sealed envelope addressed as aforesaid, registered or certified, and deposited (postage and
registry or certification fee prepaid) in a post office or branch post office regularly maintained
by the United States Government.



12. Plan. The Award and all rights of the Participant under this Agreement are
subject to the terms and conditions of the provisions of the Plan, incorporated herein by
reference. The Participant agrees to be bound by the terms of the Plan and this Agreement. The
Participant acknowledges having read and understanding the Plan, the Prospectus for the Plan, and
this Agreement. Unless otherwise expressly provided in other sections of this Agreement,
provisions of the Plan that confer discretionary authority on the Board or the Administrator do not
(and shall not be deemed to) create any rights in the Participant unless such rights are expressly
set forth herein or are otherwise in the sole discretion of the Board or the Administrator so
conferred by appropriate action of the Board or the Administrator under the Plan after the
date hereof. In the event of any conflict between (i) the Plan and this Agreement and (ii) Section
7.8 of the Employment Agreement, then Section 7.8 of the Employment Agreement shall govern as to
the Award.



13. Entire Agreement. This Agreement, the Plan and the Employment Agreement together
constitute the entire agreement with respect to the subject matter hereof and supersede all prior
understandings and agreements, written or oral, of the parties hereto with respect to the subject
matter hereof. The Plan and this Agreement may be amended only by a writing entered into by the
parties. The Corporation may, however, unilaterally waive any provision hereof in writing to the
extent such waiver does not adversely affect the interests of the Participant hereunder, but no
such waiver shall operate as or be construed to be a subsequent waiver of the same provision or a
waiver of any other provision hereof.



14. Limitation on Participant’s Rights. Participation in the Plan confers no rights
or interests other than as herein provided. This Agreement creates only a contractual obligation
on the part of the Corporation as to amounts payable and shall not be construed as creating a
trust. Neither the Plan nor any underlying program, in and of itself, has any assets. The
Participant shall have only the rights of a general unsecured creditor of the Corporation with
respect to amounts credited and benefits payable, if any, with respect to the Stock Units, and
rights no greater than the right to receive the Common Stock as a general unsecured creditor with
respect to Stock Units, as and when payable hereunder.



15. Counterparts. This Agreement may be executed simultaneously in any number of
counterparts, each of which shall be deemed an original but all of which together shall constitute
one and the same instrument.



16. Section Headings. The section headings of this Agreement are for convenience of
reference only and shall not be deemed to alter or affect any provision hereof.



17. Governing Law. This Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of Maryland without regard to conflict of law principles
thereunder.



18. Construction. It is intended that the terms of the Award will not result in the
imposition of any tax liability pursuant to Section 409A of the Code. The Agreement shall be
construed and interpreted consistent with that intent.



[Remainder of page intentionally left blank]




4




IN WITNESS WHEREOF, the Corporation has caused this Agreement to be executed on its behalf
by a duly authorized officer and the Participant has hereunto set his or her hand as of the date
and year first above written.



NEW CENTURY FINANCIAL CORPORATION,


a Maryland corporation



By:



Print Name:



Its:



PARTICIPANT



     


Signature



     


Print Name






5






EXHIBIT B




FORM OF RELEASE AGREEMENT




1. Release. Tajvinder S. Bindra (“Executive”), on his own behalf and behalf
of his descendants, dependents, heirs, executors, administrators, assigns and successors, and each
of them, hereby acknowledges full and complete satisfaction of and releases and discharges and
covenants not to sue New Century Financial Corporation (the “Company”), its divisions,
subsidiaries, parents, or affiliated corporations, past and present, and each of them, as well as
its and their assignees and successors (individually and collectively, “Company
Releasees”), from and with respect to any and all claims, agreements, obligations, demands and
causes of action, known or unknown, suspected or unsuspected, arising out of or in any way
connected with Executive’s employment or any other relationship with or interest in the Company,
including without limiting the generality of the foregoing, any claim for severance pay, profit
sharing, bonus or similar benefit, pension, retirement, life insurance, health or medical insurance
or any other fringe benefit, or disability, or any other claims, agreements, obligations, demands
and causes of action, known or unknown, suspected or unsuspected resulting from any act or omission
by or on the part of Company Releasees committed or omitted prior to the date of this Agreement,
including, without limiting the generality of the foregoing, any claim under Title VII of the Civil
Rights Act of 1964, the Americans with Disabilities Act, the Family and Medical Leave Act, the
California Fair Employment and Housing Act, California Labor Code Section 132a, the California
Family Rights Act, or any other federal, state or local law, regulation or ordinance; provided,
however, that the foregoing release does not apply to any obligation of the Company to Executive
pursuant to any of the following: (1) Sections 5.3, 5.6, 9, 14, 17, 22 and 23 of the Employment
Agreement dated as of October 25, 2006 by and between the Company and Executive (the
“Employment Agreement”), or (2) any equity-based awards previously granted by the Company
to Executive (and interpreted consistent with the Employment Agreement).



2. Waiver of Civil Code Section 1542. This Agreement is intended to be effective as a
general release of and bar to each and every claim, agreement, obligation, demand and cause of
action hereinabove specified (collectively, the “Claims”). Accordingly, Executive hereby
expressly waives any rights and benefits conferred by Section 1542 of the California Civil Code as
to the Claims. Section 1542 of the California Civil Code provides:



“A GENERAL RELEASE DOES NOT EXTEND TO A CLAIM WHICH THE CREDITOR DOES NOT
KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE
RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR
HER SETTLEMENT WITH THE DEBTOR.”



Executive acknowledges that he later may discover claims, demands, causes of action or facts in
addition to or different from those which Executive now knows or believes to exist with respect to
the subject matter of this Agreement and which, if known or suspected at the time of executing this
Agreement, may have materially affected its terms. Nevertheless, Executive hereby waives, as to
the Claims, any claims, demands, and causes of action that might arise as a result of such
different or additional claims, demands, causes of action or facts.



3. Additional Release by Executive. In addition to the release set forth in Section 1
above, Executive, on his own behalf and behalf of his descendants, dependents, heirs, executors,
administrators, assigns and successors, and each of them, hereby acknowledges full and complete
satisfaction of and releases and discharges and covenants not to sue any director, officer,
shareholder, partner, representative, attorney, agent or employee, past or present, of any Company
Releasee (individually and collectively, “Individual Releasees”), from and with respect to
any and all claims, agreements, obligations, demands and causes of action (collectively, “Known
Claims”), arising out of or in any way connected with Executive’s employment or any other
relationship with or interest in the Company; provided that “Known Claims” shall not include any
claims not released by the Executive (or his estate, as the case may be) hereunder. The Executive
represents and agrees that he has no knowledge of any facts or circumstances that may reasonably
constitute or lead to any such Known Claim.



4. ADEA Waiver. Executive expressly acknowledges and agrees that by entering into
this Agreement, he is waiving any and all rights or claims that he may have arising under the Age
Discrimination in Employment Act of 1967, as amended, which have arisen on or before the date of
execution of this Agreement. Executive further expressly acknowledges and agrees that:



(a) In return for this Agreement, he will receive consideration beyond that which he was
already entitled to receive before entering into this Agreement;



(b) He is hereby advised in writing by this Agreement to consult with an attorney before
signing this Agreement;



(c) He was given a copy of this Agreement on [     , 20     ] and informed that he had at
least twenty-one (21) days within which to consider the Agreement; and



(d) He was informed that he has seven (7) days following the date of execution of the
Agreement in which to revoke the Agreement.



5. No Transferred Claims. Each party hereto represents and warrants to the other that
he or it, as applicable, has not heretofore assigned or transferred to any person not a party to
this Agreement any released matter or any part or portion thereof.



[Continued on the next page.]






6






The undersigned have read and understand the consequences of this Agreement and voluntarily
sign it. The undersigned declare under penalty of perjury under the laws of the State of
California that the foregoing is true and correct.



EXECUTED this      day of      20     , at      County, California.



“Executive”



Tajvinder S. Bindra



NEW CENTURY FINANCIAL CORPORATION


and its divisions, subsidiaries, parents, and affiliated corporations, past and present, and each
of them



By:



[NAME]




7