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OMB APPROVAL |
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OMB Number:
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3235-0059 |
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 14A
Proxy Statement Pursuant to Section 14(a) of the Securities
Exchange Act of 1934 (Amendment No. )
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Filed by the Registrant
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Filed by a Party other than the Registrant
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Check the appropriate box: |
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o Preliminary Proxy Statement |
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Confidential, for Use of the Commission Only (as permitted by
Rule 14a-6(e)(2)) |
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o Definitive Proxy Statement |
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o Definitive Additional Materials |
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Soliciting Material Pursuant to §240.14a-12 |
NEW CENTURY FINANCIAL CORPORATION
(Name of Registrant as Specified In Its Charter)
Greenlight Capital,
L.L.C.
Greenlight Capital, Inc.
DME Advisors, L.P.
(Name of Person(s) Filing Proxy
Statement, if other than the Registrant)
Payment of Filing Fee (Check the appropriate box):
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þ No fee required. |
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Fee computed on table below per Exchange Act Rules 14a-6(i)(1)
and 0-11. |
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1) Title of each class of securities to which transaction applies: |
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2) Aggregate number of securities to which transaction applies: |
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3) Per unit price or other underlying value of transaction computed
pursuant to Exchange Act Rule 0-11 (set forth the amount on which the
filing fee is calculated and state how it was determined): |
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4) Proposed maximum aggregate value of transaction: |
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o Fee paid previously with preliminary materials. |
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o Check box if any part of the fee is offset as provided by Exchange Act
Rule 0-11(a)(2) and identify the filing for which the offsetting fee
was paid previously. Identify the previous filing by registration
statement number, or the Form or Schedule and the date of its filing. |
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1) Amount Previously Paid: |
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2) Form, Schedule or Registration Statement No.: |
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SEC 1913 (11-01) |
Persons who are to respond to the collection of information
contained in this form are not required to respond unless the form displays a currently valid
OMB control number. |
On February 16, 2006, Greenlight Capital, L.L.C., Greenlight Capital, Inc., DME Advisors,
L.P., DME Advisors GP, L.L.C. and Mr. David Einhorn filed an amendment to their Schedule 13D with
the Securities and Exchange Commission, which amendment contained the following statements in its
Item 4 disclosure :
Since August 2005, the Principal has engaged in discussions with members of New Centurys
Board of Directors (the Board) concerning a variety of matters related to New Centurys business
strategy and Greenlights desire that New Century focus on per share value maximization. The
Principal also expressed a desire to join the Board in order to participate actively in New
Centurys business strategy.
On February 16, 2006, the Principal sent a letter to Mr. Fredric J. Forster, lead director of
New Century, informing him that he was disappointed with the Boards offer that he make periodic
formal presentations to the Board in lieu of a Board seat. The Principal also explained in the
letter that, in view of the Boards response, Greenlight was left with no choice other than to
propose its own slate of directors for election at the 2006 Annual Meeting of Stockholders of New
Century (the 2006 Meeting). A copy of the Principals letter is attached hereto as Exhibit 99.1
and incorporated herein by reference.
On February 16, 2006, Greenlight Fund sent a notice (the Notice) to the Secretary of New
Century formally notifying New Century of its intent to nominate David Einhorn, David A. Cohen and
Thomas J. Edelman (each a Nominee and collectively, the Nominees) for election to the Board at
the 2006 Meeting and to solicit proxies in connection therewith. A copy of the Notice is attached
hereto as Exhibit 99.2 and incorporated herein by reference.
2
Representatives of the Reporting Persons may make proposals to New Centurys management and
Board and may engage financial, legal and other advisors to explore value creating alternatives
including changes to the overall strategic direction of New Century, corporate structure, capital
allocation, capital raising activities, declassification of the Board, Board and management
composition and related topics. The Reporting Persons may also contact other shareholders of New
Century to discuss any and all of the above.
The Reporting Persons reserve the right to acquire, or dispose of, additional securities of
New Century, in the ordinary course of business, to the extent deemed advisable in light of the
Reporting Persons general investment and trading policies, market conditions, the availability of
shares of Common Stock or other factors.
IMPORTANT INFORMATION
Greenlight LLC, Greenlight Inc and DME intend to make a preliminary filing with the Commission
of a proxy statement and an accompanying proxy card to be used to solicit proxies for the election
of the Nominees at the 2006 Meeting.
SECURITY HOLDERS ARE ADVISED TO READ THE PROXY STATEMENT AND OTHER DOCUMENTS RELATED TO THE
SOLICITATION OF PROXIES BY GREENLIGHT LLC, GREENLIGHT INC AND DME FROM THE STOCKHOLDERS OF NEW
CENTURY FOR USE AT THE 2006 MEETING WHEN THEY BECOME AVAILABLE, BECAUSE THEY WILL CONTAIN IMPORTANT
INFORMATION, INCLUDING INFORMATION RELATING TO THE PARTICIPANTS IN SUCH PROXY SOLICITATION. WHEN
COMPLETED, A DEFINITIVE PROXY STATEMENT AND A FORM OF PROXY WILL BE MAILED TO STOCKHOLDERS OF NEW
CENTURY AND WILL BE AVAILABLE AT NO CHARGE AT THE COMMISSIONS WEBSITE AT HTTP://WWW.SEC.GOV.
INFORMATION RELATING TO THE PARTICIPANTS (WHICH MAY BE DEEMED TO CONSIST OF THE REPORTING PERSONS,
THE GREENLIGHT ENTITIES, DAVID A. COHEN AND THOMAS J. EDELMAN) AND THEIR DIRECT AND INDIRECT
INTERESTS IN SUCH PROXY SOLICITATION IS CONTAINED IN EXHIBIT 99.2 HERETO.
Defined terms used in Item 4 above but not defined therein are defined as follows: The
Principal means David Einhorn. New Century means New Century Financial Corporation.
Greenlight LLC means Greenlight Capital, L.L.C. Greenlight Inc means Greenlight Capital, Inc.
Greenlight Fund means Greenlight Capital, L.P., Greenlight means collectively Greenlight LLC,
Greenlight Inc, DME Advisors GP, L.L.C. and DME Advisors, L.P. The Reporting Persons means
Greenlight together with the Principal. DME means DME Advisors, L.P. The Greenlight Entities
means Greenlight Fund, Greenlight Capital Qualified, L.P., Greenlight Capital Offshore, Ltd. and
the managed account advised by DME.
On February 16, 2006, Mr. Einhorn sent a letter to Mr. Fredric J. Forster, the Lead Director
of the Board, a copy of which is attached hereto as Exhibit 1.
3
On February 16, 2006, Greenlight Fund sent the Notice to the Secretary of New Century
notifying New Century of its intent to nominate David Einhorn, David A. Cohen and Thomas J.
Edelman (the Nominees) for election to the Board at the 2006 meeting. A copy of the Notice
is attached hereto as Exhibit 2.
Information relating to the Nominees and the other Participants is contained in the Notice
attached hereto as Exhibit 2.
SECURITY HOLDERS ARE ADVISED TO READ THE PROXY STATEMENT AND OTHER DOCUMENTS RELATED TO THE
SOLICITATION OF PROXIES BY GREENLIGHT CAPITAL, L.L.C. AND GREENLIGHT CAPITAL, INC. AND DME
ADVISORS, L.P., FROM THE STOCKHOLDERS OF NEW CENTURY FINANCIAL CORPORATION FOR USE AT THE 2006
ANNUAL MEETING OF STOCKHOLDERS WHEN THEY BECOME AVAILABLE, BECAUSE THEY WILL CONTAIN IMPORTANT
INFORMATION, INCLUDING INFORMATION RELATING TO THE PARTICIPANTS IN SUCH PROXY SOLICITATION. WHEN
COMPLETED, A DEFINITIVE PROXY STATEMENT AND A FORM OF PROXY WILL BE MAILED TO STOCKHOLDERS OF NEW
CENTURY AND WILL BE AVAILABLE AT NO CHARGE AT THE SECURITIES AND EXCHANGE COMMISSIONS WEBSITE AT
HTTP://WWW.SEC.GOV. INFORMATION RELATING TO THE PARTICIPANTS (WHICH MAY BE DEEMED TO CONSIST OF
GREENLIGHT CAPITAL, L.L.C., GREENLIGHT CAPITAL, INC., DME ADVISORS, L.P., DME ADVISORS GP, L.L.C.,
GREENLIGHT CAPITAL, L.P., GREENLIGHT CAPITAL QUALIFIED, L.P., GREENLIGHT CAPITAL OFFSHORE, LTD.,
DAVID EINHORN, DAVID A. COHEN AND THOMAS J. EDELMAN) AND THEIR DIRECT AND INDIRECT INTERESTS IN
SUCH PROXY SOLICITATION IS CONTAINED IN EXHIBIT 2 HERETO.
4
EXHIBIT 1
February 16, 2006
Mr. Fredric J. Forster
Lead Director
New Century Financial Corporation
18400 Von Karman, Suite 1000
Irvine, CA 92612
VIA E-MAIL
Dear Mr. Forster:
We are writing to follow-up on our phone call on February 14, 2006 and in response to your
letter dated February 14, 2006. I was very disappointed with your response that it is not in the
best interests of shareholders to offer a board seat to your largest shareholder.
Your suggested proposal of inviting me to make regular two-hour presentations to the Board
three times a year for the next two years so as to ensure you hear our views regularly in exchange
for a customary two year standstill agreement is not acceptable to us. In view of your response,
we are left with no choice other than to propose our own slate of directors for election to the
board. Accordingly, we are delivering today to the company a formal notice that we will nominate
three directors for election at New Centurys 2006 Annual Meeting.
While it is kind of you to recognize that our suggestions have been helpful and enabled New
Century to make incremental adjustments to its strategy, we are disappointed that the Board of
Directors has now opted for a proxy contest in lieu of an amicable compromise of expanding the
Board by a single seat to formalize our ongoing participation in ensuring that New Century adopts a
business plan centered around per share value maximization.
On our phone call, you made a number of troubling comments demonstrating a surprising
misperception of Greenlights agenda that neither reflect our previous discussions nor our actual
views. Let us set the record straight, so there is no confusion.
Our agenda is for New Century to make its capital allocation decisions for the sole purpose of
maximizing per share values for all shareholders, while adopting conservative accounting practices
that do not front-load earnings and maintaining a conservative capital structure so as to enable
New Century to both survive and thrive through the volatility inherent in the mortgage banking
business.
We believe that a per share value maximization policy requires different decisions at
different times depending on facts and circumstances. For example, at the August 2005 Board of
Directors meeting I was explicitly asked whether we favored a share repurchase. With the shares
trading at $53, I responded that we were not big supporters of a share repurchase at that time.
However, as the shares have subsequently fallen to a lower level, the facts have changed and
our views have changed.
For you to now advance the notion that the whole purpose of our year-long dialogue has been to
radically downsize the capital base, reflects, at best, a faulty memory.
To respond to your misperceptions, we do not advocate reducing New Centurys capital by
two-thirds and we do not advocate abandonment of the portfolio strategy. We have never advanced
either idea in any context. As I pointed out to you on the phone, we believe that per share value
maximization requires New Century to weigh its cost of equity properly against investment
opportunities. We believe that New Century should deploy its capital toward its best risk-adjusted
opportunities. In some circumstances, that could entail a substantial return of capital or
wholesale modification of the business plan.
For example, the risk-adjusted return available on capital deployed for share repurchases
should be compared to the risk-adjusted return available on capital deployed to hold incremental
levered subprime loans. At first, we were pleased to hear your assertion that the Board is already
performing this exercise. However, I became troubled when I asked you again what New Centurys
cost of equity is under this analysis. First, you again declined to answer and then you proceeded
to ask us what we thought the cost of equity is.
Of course, this exchange furthers our conviction that we can add substantial additional value
through a direct presence on New Centurys Board of Directors.
We strongly disagree with your comment that the only reason that the stock is where it is now,
is that the industry is being colored in a horrendous way. We believe that New Century shares are
depressed due to a history of capital misallocation, market anticipation of future capital
misallocation and a number of other self-inflicted actions that we have previously discussed with
you.
We have been large, long-term shareholders in New Century since 2002. As we have said, we
believe that New Centurys origination platform is an extraordinary, though volatile, asset. Our
investment in New Century has performed well over the years because the value of the origination
platform has experienced extraordinary growth. This growth has been mitigated by a series of
capital allocation decisions taken in the absence of a proper determination of per share value
maximization. We believe that the future of New Century will be brighter and the experience of all
New Century shareholders will be much improved if future decisions are made in a better fashion.
Sincerely,
/s/ DAVID EINHORN
David Einhorn
President
Greenlight Capital, Inc.
-2-
EXHIBIT 2
February 16, 2006
By Hand Delivery and Facsimile
New Century Financial Corporation
18400 Von Karman Avenue, Suite 1000
Irvine, California 92612
Attention Corporate Secretary
Re: Stockholders Notice of Intent to Nominate Director Candidates
Dear Sir or Madam:
Greenlight Capital, L.P., a Delaware limited partnership (the Record Owner or Greenlight LP),
hereby submits this notice (this Notice) of intent to nominate David Einhorn, David A. Cohen and
Thomas J. Edelman (each a Nominee and collectively the Nominees) for election to the Board of
Directors (the Board) of New Century Financial Corporation (New Century) at the 2006 Annual
Meeting of the Stockholders, and any adjournments or postponements thereof (the 2006 Meeting),
pursuant to Section 2.8 of the Third Amended and Restated Bylaws (the Bylaws) of New Century
filed as Exhibit 3.1 to the Form 8-K filed with the Securities and Exchange Commission (the
Commission) on October 31, 2005.
The record address of the Record Owner is 140 East 45th Street, Floor 24, New York, New York 10017.
The Record Owner currently holds of record 100 shares (the Record Shares) of common stock, par
value $0.01 (Common Stock), of New Century. In addition to the Record Shares, the Record Owner
holds 612,900 shares of Common Stock through its account with Goldman Sachs & Co. The Record Owner
may be deemed to beneficially own (within the meaning of such term under Section 13(d) of the
Securities Exchange Act of 1934, as amended (the Exchange Act), and Regulation 13D-G thereunder)
such 613,000 shares of Common Stock. Other than such 613,000 shares of Common Stock, the Record
Owner does not beneficially own (within the meaning of Section 13(d) of the Exchange Act and
Regulation 13D-G thereunder) any other shares of New Century. Greenlight Capital, L.L.C., a
Delaware limited liability company (Greenlight LLC), directs the voting and disposition of the
Record Shares, as well as the other shares held by the Record Owner, as the general partner of the
Record Owner and as such may be deemed the beneficial owner of the Record Shares and such other
shares within the meaning of Section 13(d) of the Exchange Act and Regulation 13D-G thereunder.
The address for Greenlight LLC is 140 East 45th Street, Floor 24, New York, New York 10017.
Greenlight LLC also serves as the general partner and directs the voting and disposition of
1,902,300 shares of Common Stock held by Greenlight Capital Qualified, L.P., a Delaware limited
partnership (Greenlight Qualified), through its account with Goldman Sachs & Co. The address for
Greenlight Qualified is 140 East 45th Street, Floor 24, New York, New York 10017. Greenlight LLC
may be deemed the beneficial owner (within the meaning of Section 13(d) of the Exchange Act and
Regulation 13D-G thereunder) of an aggregate of 2,515,300 shares of Common Stock, consisting of the
613,000 shares held by the Record Owner and the 1,902,300 shares held by Greenlight Qualified.
Greenlight LLC does not own of record any shares of stock of New Century and other than the 2,515,300 shares of Common Stock described
above, does not beneficially own (within the meaning of
Section 13(d) of the Exchange Act and
Regulation 13D-G thereunder) any other shares of stock of New Century. An affiliate of Greenlight
LLC, Greenlight Capital, Inc., a Delaware corporation (Greenlight Inc), acts as the investment
advisor for Greenlight Capital Offshore, Ltd., a British Virgin Islands international business
company (Greenlight Offshore), which is the holder of 2,583,900 shares of Common Stock through
its account with Goldman Sachs & Co. Greenlight Incs address is 140 East 45th Street, Floor 24,
New York, New York 10017. Greenlight Offshores address is c/o Citco BVI Limited, Citco Building,
Wickhams Cay 1, P.O. Box 662, Road Town, Tortola, British Virgin Islands. Another affiliate of
Greenlight LLC, DME Advisors, LP, a Delaware limited partnership (DME), is an investment advisor
to a managed account which is the holder of 400,800 shares of Common Stock through its account with
Goldman Sachs & Co. DMEs address is 140 East 45th Street, Floor 24, New York, New York 10017.
David Einhorn is the Senior Managing Member of Greenlight LLC and DME Advisors GP, LLC, the general
partner of DME (DME GP and, collectively with DME, Greenlight LLC and Greenlight Inc, the
"Management Entities), and the President of Greenlight Inc. DME GPs address is 140 East 45th
Street, Floor 24, New York, New York 10017. As the principal executive officer of each of the
Management Entities, David Einhorn directs the voting and disposition of all of the 5,500,000
shares of Common Stock described above and, therefore, may be deemed the beneficial owner of all
of such shares within the meaning of Section 13(d) of the Exchange Act and Regulation 13D-G
thereunder. David Einhorn does not own of record any shares of stock of New Century and other than
the 5,500,000 shares described above, does not beneficially own (within the meaning of Section
13(d) of the Exchange Act and Regulation 13D-G thereunder) any other shares of stock of New
Century. David Einhorns address is 140 East 45th Street, Floor 24, New York, New York 10017. If
the Record Owner, Greenlight Qualified, Mr. Einhorn and the Management Entities were deemed to be a
group for the purposes of Section 13(d) of the Exchange Act and Regulation 13D-G thereunder, such
group would be deemed to be a beneficial owner of all such 5,500,000 shares.
The Record Owner hereby represents that it: (i) is a stockholder of record of New Century entitled
to vote at the 2006 Meeting, (ii) intends to deliver a proxy statement and form of proxy to holders
of at least the percentage of New Centurys outstanding capital stock required to elect the
Nominees at the 2006 Meeting, and (iii) intends to appear in person or by proxy at the 2006 Meeting
to nominate the Nominees.
To the knowledge of the Record Owner, the Board consists of ten directors and only three candidates
will be nominated for election at the 2006 Meeting. If, for any reason, more than three directors
are to be elected at the 2006 Meeting, the Record Owner reserves the right to nominate additional
persons to be so elected (each such additional nominee, an Additional Nominee). Additionally, if
a Nominee or an Additional Nominee is unable to stand for election at the 2006 Meeting for any
reason, the Record Owner intends to nominate a substitute candidate to stand for election at the
2006 Meeting. The Record Owner will provide notice to New Century as soon as practicable after
identifying such substitute nominee or Additional Nominee.
2
Attached as Annex A hereto, and by this reference incorporated in this Notice, is information
relating to each of the Nominees required by the Bylaws. All of the Annexes to this Notice are
incorporated into and made a part of this Notice. Accordingly, all matters disclosed in any part
of this Notice, including the Annexes and under any heading therein, shall be deemed disclosed
for all purposes of this Notice. Certain capitalized terms used in the Annexes and not defined
therein are defined in this Notice.
Please be advised that, notwithstanding our compliance with the requirements relating to the
provision of notice relating to the nomination of director candidates by stockholders of New
Century in the Bylaws (the Bylaw Requirements), neither the delivery of this notice in accordance
with the terms of the Bylaw Requirements nor the delivery of any additional information, if any,
provided by us from and after the date hereof shall be deemed to constitute an admission by us of
the legality or enforceability of the Bylaw Requirements or a waiver by us of our right to, in any
way, contest or challenge the enforceability thereof.
The Nominees have each consented to stand for election, to being named in the proxy statement to be
filed by the Record Owner or any of its affiliates with the Commission and to stand as director if
elected. Such consents are attached hereto as Annexes B, C and D, which annexes are incorporated
herein by reference.
It is our belief that we have complied with all of the requirements to provide notice to New
Century of the intent to nominate directors for the 2006 Meeting. Please advise us if you believe
there are any deficiencies in this Notice.
[Signature Page Follows]
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Sincerely, |
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Greenlight Capital, L.P. |
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By: |
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Greenlight Capital, L.L.C. |
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its general partner |
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By: |
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/s/ DAVID EINHORN |
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David Einhorn |
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Senior Managing Member |
[Signature Page for Notice of Intent to Nominate Directors]
Annex A
Information Regarding the Nominees Required by Section 2.8 of the Bylaws
I. Information Regarding David Einhorn
Name: David Einhorn
Business address: 140 East 45th Street, Floor 24, New York, New York 10017
Principal Occupation and Background: David Einhorn is (i) the President and a Director of
Greenlight Inc, (ii) the Senior Managing Member of Greenlight LLC, DME GP, Greenlight Masters, LLC
and Greenlight Masters GP, LLC (collectively with Greenlight Masters, LLC, the Masters Entities)
and (iii) the Managing Member of Greenlight Capital Management, LLC and GCM Advisors, LLC (together
with Greenlight Capital Management, LLC, the GCM Entities). The address of each of the above
entities is 140 East 45th Street, Floor 24, New York, New York 10017. Greenlight Inc is the
investment advisor to Greenlight Offshore and provides certain management services (but not
investment control or voting control) to Greenlight LP and Greenlight Qualified. Greenlight LLC
acts as the general partner of Greenlight LP and Greenlight Qualified. DME GP acts as the general
partner to DME, which in turn manages an investment account. The primary business of Greenlight
LP, Greenlight Qualified and Greenlight Offshore is investing in and holding securities of various
entities. Greenlight Masters GP, LLC and Greenlight Masters, LLC are the general partner and
investment manager of a complex of funds, whose primary purpose is investing in other private
investment vehicles. Greenlight Capital Management, LLC and GCM Advisors, LLC are the general
partner and investment manager of a private equity fund. None of the entities described above is a
parent, subsidiary or affiliate of New Century.
Mr. Einhorn has served as Senior Managing Member of Greenlight LLC since December 2003 and the
Masters Entities since September 2003. Mr. Einhorn has served as the Managing Member and President
of each of the GCM Entities since December 2002. Since February 2005, Mr. Einhorn has been the
Senior Managing Member of DME GP, and, from April 2004 to February 2005, Mr. Einhorn was the Senior
Managing Member to the predecessor to DME, Greenlight Capital Advisors, LLC. Greenlight Capital
Advisors, LLC is not a parent, subsidiary or affiliate of New Century. From December 2002 to
September 2003, Mr. Einhorn was the sole Managing Member of the Masters Entities. From April 1996
to December 2003, Mr. Einhorn served as a Managing Member of Greenlight LLC. Mr. Einhorn has
served as a President and Director of Greenlight Inc since January 1996. In January 1996, Mr.
Einhorn co-founded Greenlight Inc and served as one of its co-presidents and directors. Prior to
founding Greenlight Inc, Mr. Einhorn worked as an investment analyst at Siegler, Collery & Co., an
investment firm involved in both public and private investments. Prior to that experience, Mr.
Einhorn was an analyst in the Investment Banking Group of Donaldson, Lufkin & Jenrette. Mr.
Einhorn graduated summa cum laude with distinction in all subjects from Cornell University in 1991.
He earned a B.A. in Government from the College of Arts and Sciences.
A-1
Directorships: Mr. Einhorn is not the director of any company with a class of equity securities
registered under Section 12 of the Exchange Act or subject to the requirements of Section 15(d) of
the Exchange Act or any company registered as an investment company under the Investment Company
Act of 1940.
Age: 37
Legal Proceedings Adverse to New Century: Neither Mr. Einhorn nor any associate of Mr. Einhorn is
a party to any legal proceeding that is adverse to New Century or any of its subsidiaries or has a
material adverse interest to New Century or any of its subsidiaries in any legal proceeding.
Certain Legal Proceedings: Mr. Einhorn has not been convicted in a criminal proceeding (excluding
traffic violations or similar misdemeanors) within the last ten years and is not a named subject of
any pending criminal proceedings. Within the last five years, no petition under the federal
bankruptcy laws or any state insolvency law has been filed by or against, or a receiver, fiscal
agent or similar officer appointed by a court for the business or property of (i) Mr. Einhorn, (ii)
any partnership in which Mr. Einhorn was a general partner at or within two years before the time
of such filing or appointment or (iii) any corporation or business association of which Mr. Einhorn
was an executive officer at or within two years before the time of such filing or appointment.
Within the last five years, Mr. Einhorn has not been the subject of any order, judgment or decree,
not subsequently reversed, suspended or vacated, of any court of competent jurisdiction,
permanently or temporarily enjoining him from, or otherwise limiting Mr. Einhorn from (i) acting as
a futures commission merchant, introducing broker, commodity trading advisor, commodity pool
operator, floor broker, leverage transaction merchant, any other person regulated by the Commodity
Futures Trading Commission, or an associated person of any of the foregoing, or as an investment
adviser, underwriter, broker or dealer in securities, or as an affiliated person, director or
employee of any investment company, bank, savings and loan association or insurance company, or
engaging in or continuing any conduct or practice in connection with any such activity, (ii)
engaging in any type of business practice or (iii) engaging in any activity in connection with the
purchase or sale of any security or commodity or in connection with any violation of any federal or
state securities laws or federal commodities laws. Within the last five years, Mr. Einhorn has not
been the subject of any order, judgment or decree, not subsequently reversed, suspended or vacated,
of any federal or state authority barring, suspending or otherwise limiting, for more than 60 days,
his right to engage in any activity described in clause (i) of the preceding sentence or to be
associated with any person engaged in any such activity. Within the last five years, Mr. Einhorn
has not been found by a court of competent jurisdiction in a civil action or by the SEC to have
violated any federal or state securities law and such judgment or finding has not been subsequently
reversed, suspended or vacated. Within the last five years, Mr. Einhorn has not been found by a
court of competent jurisdiction in a civil action or by the Commodity Futures Trading Commission to
have violated any federal commodities law and such judgment or finding has not been subsequently
reversed, suspended or vacated.
Ownership of Securities: Mr. Einhorn does not own any securities of New Century of record. Mr.
Einhorn does not beneficially own any securities of New Century directly. Mr. Einhorn may
A-2
be deemed an indirect beneficial owner (within the meaning of Section 13(d) of the Exchange Act and
Rule 13d-3 thereunder) of 5,500,000 shares (the Greenlight Shares) of Common Stock because of his
position as principal executive officer of each of Greenlight Inc, Greenlight LLC and DME GP, which
control the voting and disposition of the shares of Common Stock owned by Greenlight Offshore,
Greenlight LP, Greenlight Qualified and a managed account (each a Greenlight Fund and
collectively the Greenlight Funds). Mr. Einhorn disclaims all beneficial ownership over such
Greenlight Shares. The Greenlight Shares constitute 9.7% of the outstanding shares of Common Stock
of New Century. Neither Mr. Einhorn, the Management Entities, the Greenlight Funds nor any other
entity affiliated with Mr. Einhorn is the direct or indirect beneficial owner of any securities of
any parent or subsidiary of New Century. Other than as is set forth in this Notice, no associate
of Mr. Einhorn directly or indirectly beneficially owns any securities of New Century.
Other than the transactions described below, Mr. Einhorn has not directly or indirectly purchased
or sold any securities of New Century in the past two years.
Transactions in the Common Stock
by Mr. Einhorn Directly
None
Transactions in New Century
Common Stock by the Greenlight Funds
Transactions in New Century Common Stock by Greenlight LP during the last two years
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Number of Shares of |
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Common Stock |
Date of Transaction |
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Nature of Transaction |
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of New Century |
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April 1, 2004 |
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Purchase of Common Stock |
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14,900 |
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April 12, 2004 |
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Purchase of Common Stock |
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26,800 |
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April 12, 2004 |
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Purchase of Common Stock |
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26,700 |
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April 13, 2004 |
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Purchase of Common Stock |
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6,700 |
|
April 13, 2004 |
|
Purchase of Common Stock |
|
|
17,300 |
|
April 13, 2004 |
|
Purchase of Common Stock |
|
|
6,700 |
|
April 14, 2004 |
|
Purchase of Common Stock |
|
|
20,100 |
|
April 15, 2004 |
|
Purchase of Common Stock |
|
|
6,700 |
|
July 2, 2004 |
|
Sale of Common Stock |
|
|
18,700 |
|
October 11, 2004 |
|
Purchase of Common Stock |
|
|
5,100 |
|
October 20, 2004 |
|
Purchase of Common Stock |
|
|
3,000 |
|
December 1, 2004 |
|
Sale of Common Stock |
|
|
17,900 |
|
December 1, 2004 |
|
Sale of Common Stock |
|
|
8,200 |
|
December 2, 2004 |
|
Sale of Common Stock |
|
|
8,300 |
|
December 3, 2004 |
|
Sale of Common Stock |
|
|
5,800 |
|
December 6, 2004 |
|
Sale of Common Stock |
|
|
5,900 |
|
February 9, 2005 |
|
Sale of Common Stock |
|
|
12,000 |
|
March 15, 2005 |
|
Purchase of Common Stock |
|
|
24,600 |
|
A-3
|
|
|
|
|
|
|
|
|
|
|
Number of Shares of |
|
|
|
|
Common Stock |
Date of Transaction |
|
Nature of Transaction |
|
of New Century |
|
|
|
|
|
|
|
March 16, 2005 |
|
Purchase of Common Stock |
|
|
11,400 |
|
March 18, 2005 |
|
Purchase of Common Stock |
|
|
19,100 |
|
March 22, 2005 |
|
Purchase of Common Stock |
|
|
1,200 |
|
March 23, 2005 |
|
Purchase of Common Stock |
|
|
17,100 |
|
March 23, 2005 |
|
Purchase of Common Stock |
|
|
5,300 |
|
April 15, 2005 |
|
Purchase of Common Stock |
|
|
17,100 |
|
April 18, 2005 |
|
Purchase of Common Stock |
|
|
22,300 |
|
April 19, 2005 |
|
Purchase of Common Stock |
|
|
12,800 |
|
April 20, 2005 |
|
Purchase of Common Stock |
|
|
50,200 |
|
April 20, 2005 |
|
Purchase of Common Stock |
|
|
300 |
|
September 16, 2005 |
|
Purchase of Common Stock |
|
|
17,800 |
|
September 19, 2005 |
|
Purchase of Common Stock |
|
|
30,600 |
|
September 20, 2005 |
|
Purchase of Common Stock |
|
|
8,400 |
|
September 29, 2005 |
|
Sale of Common Stock |
|
|
56,800 |
|
October 11, 2005 |
|
Purchase of Common Stock |
|
|
41,300 |
|
October 11, 2005 |
|
Purchase of Common Stock |
|
|
7,600 |
|
October 12, 2005 |
|
Purchase of Common Stock |
|
|
4,400 |
|
Transactions in New Century Common Stock by Greenlight Qualified during the last two years
|
|
|
|
|
|
|
|
|
|
|
Number of Shares of |
|
|
|
|
Common Stock |
Date of Transaction |
|
Nature of Transaction |
|
of New Century |
|
|
|
|
|
|
|
April 1, 2004 |
|
Sale of Common Stock |
|
|
15,450 |
|
April 12, 2004 |
|
Purchase of Common Stock |
|
|
76,300 |
|
April 12, 2004 |
|
Purchase of Common Stock |
|
|
77,000 |
|
April 13, 2004 |
|
Purchase of Common Stock |
|
|
19,000 |
|
April 13, 2004 |
|
Purchase of Common Stock |
|
|
48,750 |
|
April 13, 2004 |
|
Purchase of Common Stock |
|
|
19,100 |
|
April 14, 2004 |
|
Purchase of Common Stock |
|
|
57,200 |
|
April 15, 2004 |
|
Purchase of Common Stock |
|
|
19,000 |
|
July 2, 2004 |
|
Sale of Common Stock |
|
|
11,900 |
|
October 11, 2004 |
|
Purchase of Common Stock |
|
|
28,600 |
|
October 20, 2004 |
|
Purchase of Common Stock |
|
|
8,700 |
|
December 1, 2004 |
|
Sale of Common Stock |
|
|
49,900 |
|
December 1, 2004 |
|
Sale of Common Stock |
|
|
24,400 |
|
December 2, 2004 |
|
Sale of Common Stock |
|
|
24,700 |
|
December 3, 2004 |
|
Sale of Common Stock |
|
|
17,500 |
|
December 6, 2004 |
|
Sale of Common Stock |
|
|
17,400 |
|
February 9, 2005 |
|
Sale of Common Stock |
|
|
6,900 |
|
March 15, 2005 |
|
Purchase of Common Stock |
|
|
76,100 |
|
March 16, 2005 |
|
Purchase of Common Stock |
|
|
34,800 |
|
March 18, 2005 |
|
Purchase of Common Stock |
|
|
58,400 |
|
March 22, 2005 |
|
Purchase of Common Stock |
|
|
3,400 |
|
March 23, 2005 |
|
Purchase of Common Stock |
|
|
52,200 |
|
March 23, 2005 |
|
Purchase of Common Stock |
|
|
16,200 |
|
April 15, 2005 |
|
Purchase of Common Stock |
|
|
74,200 |
|
A-4
|
|
|
|
|
|
|
|
|
|
|
Number of Shares of |
|
|
|
|
Common Stock |
Date of Transaction |
|
Nature of Transaction |
|
of New Century |
|
|
|
|
|
|
|
April 18, 2005 |
|
Purchase of Common Stock |
|
|
69,200 |
|
April 19, 2005 |
|
Purchase of Common Stock |
|
|
39,800 |
|
April 20, 2005 |
|
Purchase of Common Stock |
|
|
155,600 |
|
April 20, 2005 |
|
Purchase of Common Stock |
|
|
1,000 |
|
September 16, 2005 |
|
Purchase of Common Stock |
|
|
56,700 |
|
September 19, 2005 |
|
Purchase of Common Stock |
|
|
96,600 |
|
September 20, 2005 |
|
Purchase of Common Stock |
|
|
43,600 |
|
September 20, 2005 |
|
Purchase of Common Stock |
|
|
15,200 |
|
September 29, 2005 |
|
Sale of Common Stock |
|
|
212,100 |
|
October 11, 2005 |
|
Purchase of Common Stock |
|
|
130,500 |
|
October 11, 2005 |
|
Purchase of Common Stock |
|
|
24,100 |
|
October 12, 2005 |
|
Purchase of Common Stock |
|
|
14,100 |
|
Transactions in New Century Common Stock by Greenlight Offshore during the last two years
|
|
|
|
|
|
|
|
|
|
|
Number of Shares of |
|
|
|
|
Common Stock |
Date of Transaction |
|
Nature of Transaction |
|
of New Century |
|
|
|
|
|
|
|
April 1, 2004 |
|
Purchase of Common Stock |
|
|
550 |
|
April 12, 2004 |
|
Purchase of Common Stock |
|
|
96,900 |
|
April 12, 2004 |
|
Purchase of Common Stock |
|
|
96,300 |
|
April 13, 2004 |
|
Purchase of Common Stock |
|
|
24,300 |
|
April 13, 2004 |
|
Purchase of Common Stock |
|
|
62,300 |
|
April 13, 2004 |
|
Purchase of Common Stock |
|
|
24,200 |
|
April 14, 2004 |
|
Purchase of Common Stock |
|
|
72,700 |
|
April 15, 2004 |
|
Purchase of Common Stock |
|
|
24,300 |
|
July 2, 2004 |
|
Purchase of Common Stock |
|
|
30,600 |
|
October 11, 2004 |
|
Purchase of Common Stock |
|
|
38,300 |
|
October 20, 2004 |
|
Purchase of Common Stock |
|
|
11,400 |
|
December 1, 2004 |
|
Sale of Common Stock |
|
|
32,100 |
|
December 1, 2004 |
|
Sale of Common Stock |
|
|
54,800 |
|
December 2, 2004 |
|
Sale of Common Stock |
|
|
32,700 |
|
December 3, 2004 |
|
Sale of Common Stock |
|
|
22,900 |
|
December 6, 2004 |
|
Sale of Common Stock |
|
|
23,000 |
|
February 9, 2005 |
|
Purchase of Common Stock |
|
|
18,900 |
|
March 15, 2005 |
|
Purchase of Common Stock |
|
|
103,000 |
|
March 16, 2005 |
|
Purchase of Common Stock |
|
|
46,700 |
|
March 18, 2005 |
|
Purchase of Common Stock |
|
|
78,600 |
|
March 22, 2005 |
|
Purchase of Common Stock |
|
|
4,600 |
|
March 23, 2005 |
|
Purchase of Common Stock |
|
|
70,100 |
|
March 23, 2005 |
|
Purchase of Common Stock |
|
|
21,800 |
|
April 15, 2005 |
|
Purchase of Common Stock |
|
|
120,900 |
|
April 18, 2005 |
|
Purchase of Common Stock |
|
|
93,900 |
|
April 19, 2005 |
|
Purchase of Common Stock |
|
|
54,000 |
|
April 20, 2005 |
|
Purchase of Common Stock |
|
|
211,400 |
|
April 20, 2005 |
|
Purchase of Common Stock |
|
|
1,500 |
|
September 16, 2005 |
|
Purchase of Common Stock |
|
|
76,600 |
|
A-5
|
|
|
|
|
|
|
|
|
|
|
Number of Shares of |
|
|
|
|
Common Stock |
Date of Transaction |
|
Nature of Transaction |
|
of New Century |
|
|
|
|
|
|
|
September 19, 2005 |
|
Purchase of Common Stock |
|
|
130,800 |
|
September 20, 2005 |
|
Purchase of Common Stock |
|
|
58,400 |
|
September 20, 2005 |
|
Purchase of Common Stock |
|
|
4,800 |
|
September 29, 2005 |
|
Sale of Common Stock |
|
|
135,300 |
|
September 30, 2005 |
|
Sale of Common Stock |
|
|
135,300 |
|
October 11, 2005 |
|
Purchase of Common Stock |
|
|
176,700 |
|
October 11, 2005 |
|
Purchase of Common Stock |
|
|
32,700 |
|
October 12, 2005 |
|
Purchase of Common Stock |
|
|
19,400 |
|
Transactions in New Century Common Stock by the account managed by DME during the last two years
|
|
|
|
|
|
|
|
|
|
|
Number of Shares of |
|
|
|
|
Common Stock |
Date of Transaction |
|
Nature of Transaction |
|
of New Century |
|
|
|
|
|
|
|
October 1, 2004 |
|
Purchase of Common Stock |
|
|
250,000 |
|
October 11, 2004 |
|
Purchase of Common Stock |
|
|
32,000 |
|
October 11, 2004 |
|
Purchase of Common Stock |
|
|
2,000 |
|
October 20, 2004 |
|
Purchase of Common Stock |
|
|
1,900 |
|
December 1, 2004 |
|
Sale of Common Stock |
|
|
5,300 |
|
December 1, 2004 |
|
Sale of Common Stock |
|
|
17,400 |
|
December 2, 2004 |
|
Sale of Common Stock |
|
|
5,300 |
|
December 3, 2004 |
|
Sale of Common Stock |
|
|
3,800 |
|
December 6, 2004 |
|
Sale of Common Stock |
|
|
3,700 |
|
March 15, 2005 |
|
Purchase of Common Stock |
|
|
1,300 |
|
March 16, 2005 |
|
Purchase of Common Stock |
|
|
7,100 |
|
March 18, 2005 |
|
Purchase of Common Stock |
|
|
11,900 |
|
March 22, 2005 |
|
Purchase of Common Stock |
|
|
800 |
|
March 23, 2005 |
|
Purchase of Common Stock |
|
|
10,600 |
|
March 23, 2005 |
|
Purchase of Common Stock |
|
|
3,300 |
|
April 15, 2005 |
|
Purchase of Common Stock |
|
|
23,800 |
|
April 18, 2005 |
|
Purchase of Common Stock |
|
|
14,600 |
|
April 19, 2005 |
|
Purchase of Common Stock |
|
|
8,400 |
|
April 20, 2005 |
|
Purchase of Common Stock |
|
|
32,800 |
|
April 20, 2005 |
|
Purchase of Common Stock |
|
|
200 |
|
September 16, 2005 |
|
Purchase of Common Stock |
|
|
26,900 |
|
September 19, 2005 |
|
Purchase of Common Stock |
|
|
20,400 |
|
September 29, 2005 |
|
Sale of Common Stock |
|
|
23,650 |
|
September 30, 2005 |
|
Sale of Common Stock |
|
|
23,650 |
|
October 11, 2005 |
|
Purchase of Common Stock |
|
|
27,600 |
|
October 11, 2005 |
|
Purchase of Common Stock |
|
|
5,100 |
|
October 12, 2005 |
|
Purchase of Common Stock |
|
|
2,900 |
|
Leverage or Margin: While a portion of the purchase price or market value of the shares of
which Mr. Einhorn may be deemed the beneficial owner was represented by funds borrowed or otherwise
obtained for the purpose of acquiring or holding such securities, at the present time, all
A-6
such shares are held in a cash account and no borrowings are currently in effect with respect to
such shares. The portion of the purchase price or market value of the shares that was represented
by funds borrowed or otherwise obtained was pursuant to a brokerage margin account.
Contracts, Arrangements or Understandings: Except as disclosed in this Notice, neither Mr.
Einhorn, the Management Entities, the Greenlight Funds nor any other entity affiliated with Mr.
Einhorn is, or has been within the past year, a party to any contract, arrangement or understanding
with any person with respect to any securities of New Century, including but not limited to joint
ventures, loan or option arrangements, puts or calls, guarantees against loss or guarantees of
profit, division of losses or profits, or the giving or withholding of proxies.
Other Interests Relating to New Century: Each of the Greenlight Funds is a party to a cash-settled
equity-based swap contract pursuant to a standard ISDA form and swap confirmation with an
independent bank counterparty based on the value of a specified number of shares of Common Stock
(the Basket). Pursuant to the terms of each swap contract, if the per share price of the Common
Stock is greater than $36.55 as of the payment date, the swap counterparty must pay the respective
Greenlight Fund the product of (a) the number of shares in the Basket on the payment date,
multiplied by (b) the volume weighted average price per share on the payment date, less $36.55 per
share, subject to set off versus such Greenlight Funds payment obligation. In the event that the
per share price of the Common Stock is less than $36.55 as of the payment date, the respective
Greenlight Fund must pay the swap counterparty the product of (a) the number of shares in the
Basket on the payment date, multiplied by (b) $36.55 per share, less the volume weighted average
price per share on the payment date. On the payment date, each Greenlight Fund must pay the swap
counterparty an amount equal to the product of (a) the number of reference shares in the Basket,
multiplied by (b) $36.55, multiplied by (c) an annual rate of interest of the one day federal funds
rate plus fifty basis points, subject to set off versus the swap counterpartys payment obligation.
Each swap is scheduled to terminate on October 4, 2006. Each swap may be terminated on two days
notice from the respective Greenlight Fund. The Basket for the Greenlight Funds in the aggregate
is 2,091,800 shares of Common Stock, divided among the Greenlight Funds as follows: the Basket for
Greenlight LP is an aggregate 167,900 shares of Common Stock; the Basket for Greenlight Qualified
is an aggregate 811,500 shares of Common Stock; the Basket for Greenlight Offshore is an aggregate
954,600 shares of Common Stock; and the Basket for the account managed by DME is an aggregate
157,800 shares of Capital Stock. The Greenlight Funds do not have the right to vote any shares of
Common Stock or dispose of any shares of Common Stock pursuant to any swap contract, and the
counterparty is under no obligation to purchase, sell or hold any shares of Common Stock. In
addition, the swaps may only be settled for cash.
Transactions with New Century: There has not been since the beginning of New Centurys last fiscal
year, and there is not currently proposed, any transaction, or series of similar transactions, to
which New Century or any of its subsidiaries was or is a party, in which the amount involved
exceeds $60,000 and in which Mr. Einhorn, the Management Entities, the Greenlight Funds, any other
entity affiliated with Mr. Einhorn or any immediate family member or other associate of Mr. Einhorn
had, or will have, a direct or indirect material interest. None of Mr. Einhorn, the Management
Entities, the Greenlight Funds, any other entity affiliated with Mr. Einhorn, any corporation or
organization of which Mr. Einhorn is an executive officer or partner, or is, directly
A-7
or indirectly, the beneficial owner of 10 percent or more of any class of equity securities, any
trust or other estate in which Mr. Einhorn has a substantial beneficial interest or as to which he
serves as a trustee or in a similar capacity or any immediate family member of Mr. Einhorn has been
indebted to New Century or any of its subsidiaries at any time since the beginning of New Centurys
last fiscal year in an amount in excess of $60,000.
Certain Business Relationships: Since the beginning of New Centurys last fiscal year, Mr. Einhorn
is not, and has not been, an executive officer or more than 10% record or beneficial owner of any
business or professional entity that (i) has made, or proposes to make, payments to New Century or
any of its subsidiaries in an amount for which disclosure would be required under the federal proxy
rules, (ii) has received, or proposes to receive, payments from New Century or any of its
subsidiaries in an amount for which disclosure would be required under the federal proxy rules or
(iii) to which New Century or any of its subsidiaries was indebted. Mr. Einhorn is not associated
with or an owner of any law firm or investment banking firm.
Section 16 Reporting: Mr. Einhorn has not failed to file any reports related to New Century that
are required by Section 16(a) of the Exchange Act.
Arrangement Relating to Employment; Family Relationships. Neither Mr. Einhorn nor any of his
associates has any office or position with New Century or any arrangement or understanding with any
person with respect to any future employment by New Century or its affiliates or with respect to
any future transactions to which New Century or any of its affiliates will or may be a party.
There are no family relationships between any current director or executive officer of New Century
and Mr. Einhorn or between Mr. Einhorn and any Nominee. Mr. Einhorn has not received any
compensation from New Century as a director or executive officer.
Arrangements Relating to Nomination: Each Nominee will enter into an indemnification agreement
with Greenlight LLC pursuant to which Greenlight LLC will indemnify such Nominee from and against
any losses incurred by such Nominee arising out of his nomination for election as a director of New
Century at the 2006 Meeting, his election to the Board and his serving on the Board. Each
indemnification agreement will provide that if the Nominee is elected to the Board, any
indemnification of losses from Greenlight LLC shall apply only after giving effect to any
indemnification provided by New Century.
Interest in Matters to be Acted Upon: Due to their direct or indirect ownership interests in the
Common Stock and their other interests relating to New Century described above under Other
Interests Relating to New Century, Mr. Einhorn, the Management Entities and the Greenlight Funds
have an interest in the solicitation of proxies in support of the Nominees. Mr. Einhorn directly
or indirectly owns limited partnership interests or shares in each of the Greenlight Funds. The
Nominees and Greenlight LLC have an interest in the solicitation of proxies in support of the
Nominees through the indemnification agreements described above. The Nominees are expected to
receive customary compensation from New Century in exchange for their services as directors, if
elected. The Greenlight Funds may seek reimbursement from New Century for their costs and expenses
incurred in connection with the solicitation of proxies in support of the Nominees.
A-8
Greenlight LP believes that Mr. Einhorn is independent for purposes of Rule 10A-3 of the Exchange
Act and Paragraph 303A.02 of the New York Stock Exchanges Listed Company Manual and is financially
literate. Therefore, Greenlight LP believes that Mr. Einhorn is eligible to serve on New Centurys
Audit Committee, Compensation Committee or Nominating and Governance Committee.
A-9
II. Information Regarding David A. Cohen
Name: David A. Cohen
Business address: 12100 Wilshire Boulevard, Suite 800, Los Angeles, California 90025
Principal Occupation and Background: Mr. Cohen, age 42, currently is the President of GKM Capital
(GKM). GKMs address is 12100 Wilshire Boulevard, Suite 800, Los Angeles, California 90025. GKM
is a private investment firm with an equity capital base of over $1 billion.
Mr.. Cohen has over 18 years of experience in principal investing, private equity, corporate
finance and capital markets. He has been an active private investor in operating companies and
public securities. Mr. Cohen has been the President of GKM since June 2005. From May 2003 to June
2005, Mr. Cohen was a private equity investor with Malibu Capital Partners, a private equity
investment firm. From September 2001 to May 2003, he was a principal of Quellos Group, a global
alternative investment firm with assets of more than $16 billion. None of GKM, Malibu Capital
Partners or Quellos Group is a parent, subsidiary or affiliate of New Century. For most of the
1990s, Mr. Cohen held a variety of senior executive positions with Pacific Holdings, a privately
held enterprise with 25 operating companies across a variety of industries. He was responsible for
Pacific Holdings public and private investments strategy. Mr. Cohen served simultaneously as
Senior Vice President at Pacific Holdings largest investment, Dole Food Company/Castle & Cooke, a
fruit and vegetable producer and marketer. Mr. Cohen started his career as a capital markets
professional at Lazard Freres in New York. He holds a B.S. in engineering and applied sciences
(summa cum laude) from Boston University, attended graduate school at Sydney University (Australia)
as a Rotary Foundation Scholar, and holds a Masters Degree in Finance (honors) from Cambridge
University (England).
Directorships: Mr. Cohen is not a director of any company with a class of equity securities
registered under Section 12 of the Exchange Act or subject to the requirements of Section 15(d) of
the Exchange Act or any company registered as an investment company under the Investment Company
Act of 1940.
Age: 42
Legal Proceedings Adverse to New Century: Neither Mr. Cohen nor any associate of Mr. Cohen is a
party to any legal proceeding that is adverse to New Century or any of its subsidiaries or has a
material adverse interest to New Century or any of its subsidiaries in any legal proceeding.
Certain Legal Proceedings: Mr. Cohen has not been convicted in a criminal proceeding (excluding
traffic violations or similar misdemeanors) within the last ten years and is not a named subject of
any pending criminal proceedings. Within the last five years, no petition under the federal
bankruptcy laws or any state insolvency law has been filed by or against, or a receiver, fiscal
agent or similar officer appointed by a court for the business or property of (i) Mr. Cohen, (ii)
any partnership in which Mr. Cohen was a general partner at or within two years before the time of
such filing or appointment or (iii) any corporation or business association of
A-10
which Mr. Cohen was an executive officer at or within two years before the time of such filing or
appointment. Within the last five years, Mr. Cohen has not been the subject of any order, judgment
or decree, not subsequently reversed, suspended or vacated, of any court of competent jurisdiction,
permanently or temporarily enjoining him from, or otherwise limiting Mr. Cohen from (i) acting as a
futures commission merchant, introducing broker, commodity trading advisor, commodity pool
operator, floor broker, leverage transaction merchant, any other person regulated by the Commodity
Futures Trading Commission, or an associated person of any of the foregoing, or as an investment
adviser, underwriter, broker or dealer in securities, or as an affiliated person, director or
employee of any investment company, bank, savings and loan association or insurance company, or
engaging in or continuing any conduct or practice in connection with any such activity, (ii)
engaging in any type of business practice or (iii) engaging in any activity in connection with the
purchase or sale of any security or commodity or in connection with any violation of any federal or
state securities laws or federal commodities laws. Within the last five years, Mr. Cohen has not
been the subject of any order, judgment or decree, not subsequently reversed, suspended or vacated,
of any federal or state authority barring, suspending or otherwise limiting, for more than 60 days,
his right to engage in any activity described in clause (i) of the preceding sentence or to be
associated with any person engaged in any such activity. Within the last five years, Mr. Cohen has
not been found by a court of competent jurisdiction in a civil action or by the SEC to have
violated any federal or state securities law and such judgment or finding has not been subsequently
reversed, suspended or vacated. Within the last five years, Mr. Cohen has not been found by a
court of competent jurisdiction in a civil action or by the Commodity Futures Trading Commission to
have violated any federal commodities law and such judgment or finding has not been subsequently
reversed, suspended or vacated.
Ownership of Securities: Mr. Cohen does not own any securities of New Century of record. Mr.
Cohen does not directly or indirectly beneficially own (within the meaning of Section 13(d) of the
Exchange Act and Rule 13d-3 thereunder) any securities of New Century. Mr. Cohen does not directly
or indirectly beneficially own any securities of any parent or subsidiary of New Century. No
associate of Mr. Cohen directly or indirectly beneficially owns any securities of New Century.
Mr. Cohen has not directly or indirectly purchased or sold any securities of New Century in the
past two years.
Contracts, Arrangements or Understandings: Mr. Cohen is not, and has not been within the past
year, a party to any contract, arrangement or understanding with any person with respect to any
securities of New Century, including but not limited to joint ventures, loan or option
arrangements, puts or calls, guarantees against loss or guarantees of profit, division of losses or
profits, or the giving or withholding of proxies.
Transactions with New Century: There has not been since the beginning of New Centurys last fiscal
year, and there is not currently proposed, any transaction, or series of similar transactions, to
which New Century or any of its subsidiaries was or is a party, in which the amount involved
exceeds $60,000 and in which Mr. Cohen, any immediate family member of Mr. Cohen or any other
associate of Mr. Cohen had, or will have, a direct or indirect material interest. None of Mr.
A-11
Cohen, any corporation or organization of which Mr. Cohen is an executive officer or partner, or
is, directly or indirectly, the beneficial owner of 10 percent or more of any class of equity
securities, any trust or other estate in which Mr. Cohen has a substantial beneficial interest or
as to which he serves as a trustee or in a similar capacity or any immediate family member of Mr.
Cohen has been indebted to New Century or any of its subsidiaries at any time since the beginning
of New Centurys last fiscal year in an amount in excess of $60,000.
Certain Business Relationships: Since the beginning of New Centurys last fiscal year, Mr. Cohen
is not, and has not been, an executive officer or more than 10% record or beneficial owner of any
business or professional entity that (i) has made, or proposes to make, payments to New Century or
any of its subsidiaries in an amount for which disclosure would be required under the federal proxy
rules, (ii) has received, or proposes to receive, payments from New Century or any of its
subsidiaries in an amount for which disclosure would be required under the federal proxy rules or
(iii) to which New Century or any of its subsidiaries was indebted. Mr. Cohen is not associated
with or an owner of any law firm or investment banking firm.
Section 16 Reporting: Mr. Cohen has not failed to file any reports related to New Century that are
required by Section 16(a) of the Exchange Act.
Arrangement Relating to Employment; Family Relationships. Neither Mr. Cohen nor any of his
associates has any office or position with New Century or any arrangement or understanding with any
person with respect to any future employment by New Century or its affiliates or with respect to
any future transactions to which New Century or any of its affiliates will or may be a party.
There are no family relationships between any current director or executive officer of New Century
and Mr. Cohen or between Mr. Cohen and any Nominee. Mr. Cohen has not received any compensation
from New Century as a director or executive officer.
Arrangements Relating to Nomination: Mr. Cohen will enter into an indemnification agreement with
Greenlight LLC pursuant to which Greenlight LLC will indemnify such Nominee from and against any
losses incurred by such Nominee arising out of his nomination for election as a director of New
Century at the 2006 Meeting, his election to the Board and his serving on the Board. Each
indemnification agreement will provide that if the Nominee is elected to the Board, any
indemnification of losses from Greenlight LLC shall apply only after giving effect to any
indemnification provided by New Century.
Interest in Matters to be Acted Upon: Mr. Cohen indirectly owns a limited partnership interest in
Greenlight Qualified. Due to its ownership interest in the Common Stock and its other interests
relating to New Century described above under Other Interests Relating to New Century, Greenlight
Qualified has an interest in the solicitation of proxies in support of the Nominees. The Nominees
and Greenlight LLC have an interest in the solicitation of proxies in support of the Nominees
through the indemnification agreements described above. The Nominees are expected to receive
customary compensation from New Century in exchange for their services as directors, if elected.
Greenlight LP believes that Mr. Cohen is independent for purposes of Rule 10A-3 of the Exchange Act
and Paragraph 303A.02 of the New York Stock Exchanges Listed Company
A-12
Manual and is financially literate. Therefore, Greenlight LP believes that Mr. Cohen is eligible
to serve on New Centurys Audit Committee, Compensation Committee or Nominating and Governance
Committee.
A-13
III. Information Regarding Thomas J. Edelman
Name: Thomas J. Edelman
Business address: 535 Madison Avenue, New York, New York 10022
Principal Occupation and Background: Mr. Edelman, age 55, currently is a director of Noble Energy,
Inc., a Delaware corporation listed on the New York Stock Exchange (Noble), and Chairman of Bear
Cub Investments LLC (Bear Cub). Nobles address is 100 Glenborough Drive, Suite 100, Houston,
Texas 77067. Noble is an independent energy company that, directly or through its subsidiaries or
various arrangements with other companies, explores for, develops and produces crude oil and
natural gas. Bear Cubs address is 1625 Broadway, Denver, Colorado 80202. Bear Cubs principal
business is the gathering and processing of natural gas and the marketing of crude oil and natural
gas liquids.
Mr. Edelman founded Patina Oil & Gas Corporation (Patina) and served as Chairman of the Board and
Chief Executive Officer from its formation in 1996 through the completion of its merger with and
into a subsidiary of Noble in May 2005. Mr. Edelman was also appointed Patinas President in
December 2004. Patina was an energy company engaged in the acquisition, development and
exploitation of oil and natural gas properties within the continental United States. None of
Noble, Patina or Bear Cub is a parent, subsidiary or affiliate of New Century. Mr. Edelman
co-founded Snyder Oil Corporation and was its President from 1981 through 1997. From 1980 to 1981,
he was with The First Boston Corporation and, from 1975 through 1980, with Lehman Brothers Kuhn
Loeb Incorporated. Mr. Edelman received a Bachelor of Arts Degree in Political Science and
Economics from Princeton University in 1973 and a Masters Degree in Finance from Harvard
Universitys Graduate School of Business Administration in 1975.
Directorships: Other than serving as a director of Noble Energy, Inc., a Delaware corporation
listed on the New York Stock Exchange, Mr. Edelman is not a director of any company with a class of
equity securities registered under Section 12 of the Exchange Act or subject to the requirements of
Section 15(d) of the Exchange Act or any company registered as an investment company under the
Investment Company Act of 1940.
Age: 55
Legal Proceedings Adverse to New Century: Neither Mr. Edelman nor any of his associates is a party
to any legal proceeding that is adverse to New Century or any of its subsidiaries or has a material
adverse interest to New Century or any of its subsidiaries in any legal proceeding.
Certain Legal Proceedings: Mr. Edelman has not been convicted in a criminal proceeding (excluding
traffic violations or similar misdemeanors) within the last ten years and is not a named subject of
any pending criminal proceedings. Within the last five years, no petition under the federal
bankruptcy laws or any state insolvency law has been filed by or against, or a receiver, fiscal
agent or similar officer appointed by a court for the business or property of (i) Mr. Edelman, (ii)
any partnership in which Mr. Edelman was a general partner at or within two
A-14
years before the time of such filing or appointment or (iii) any corporation or business
association of which Mr. Edelman was an executive officer at or within two years before the time of
such filing or appointment. Within the last five years, Mr. Edelman has not been the subject of
any order, judgment or decree, not subsequently reversed, suspended or vacated, of any court of
competent jurisdiction, permanently or temporarily enjoining him from, or otherwise limiting Mr.
Edelman from (i) acting as a futures commission merchant, introducing broker, commodity trading
advisor, commodity pool operator, floor broker, leverage transaction merchant, any other person
regulated by the Commodity Futures Trading Commission, or an associated person of any of the
foregoing, or as an investment adviser, underwriter, broker or dealer in securities, or as an
affiliated person, director or employee of any investment company, bank, savings and loan
association or insurance company, or engaging in or continuing any conduct or practice in
connection with any such activity, (ii) engaging in any type of business practice or (iii) engaging
in any activity in connection with the purchase or sale of any security or commodity or in
connection with any violation of any federal or state securities laws or federal commodities laws.
Within the last five years, Mr. Edelman has not been the subject of any order, judgment or decree,
not subsequently reversed, suspended or vacated, of any federal or state authority barring,
suspending or otherwise limiting, for more than 60 days, his right to engage in any activity
described in clause (i) of the preceding sentence or to be associated with any person engaged in
any such activity. Within the last five years, Mr. Edelman has not been found by a court of
competent jurisdiction in a civil action or by the SEC to have violated any federal or state
securities law and such judgment or finding has not been subsequently reversed, suspended or
vacated. Within the last five years, Mr. Edelman has not been found by a court of competent
jurisdiction in a civil action or by the Commodity Futures Trading Commission to have violated any
federal commodities law and such judgment or finding has not been subsequently reversed, suspended
or vacated.
Ownership of Securities: Mr. Edelman does not own any securities of New Century of record. Mr.
Edelman does not directly or indirectly beneficially own (within the meaning of Section 13(d) of
the Exchange Act and Rule 13d-3 thereunder) any securities of New Century. Mr. Edelman does not
directly or indirectly beneficially own any securities of any parent or subsidiary of New Century.
No associate of Mr. Edelman directly or indirectly beneficially owns any securities of New Century.
Mr. Edelman has not directly or indirectly purchased or sold any securities of New Century in the
past two years.
Contracts, Arrangements or Understandings: Mr. Edelman is not, and has not been within the past
year, a party to any contract, arrangement or understanding with any person with respect to any
securities of New Century, including but not limited to joint ventures, loan or option
arrangements, puts or calls, guarantees against loss or guarantees of profit, division of losses or
profits, or the giving or withholding of proxies.
Transactions with New Century: There has not been since the beginning of New Centurys last fiscal
year, and there is not currently proposed, any transaction, or series of similar transactions, to
which New Century or any of its subsidiaries was or is a party, in which the amount involved
exceeds $60,000 and in which Mr. Edelman, any immediate family member of Mr. Edelman or
A-15
any other associate of Mr. Edelman had, or will have, a direct or indirect material interest. None
of Mr. Edelman, any corporation or organization of which Mr. Edelman is an executive officer or
partner, or is, directly or indirectly, the beneficial owner of 10 percent or more of any class of
equity securities, any trust or other estate in which Mr. Edelman has a substantial beneficial
interest or as to which he serves as a trustee or in a similar capacity or any immediate family
member of Mr. Edelman has been indebted to New Century or any of its subsidiaries at any time since
the beginning of New Centurys last fiscal year in an amount in excess of $60,000.
Certain Business Relationships: Since the beginning of New Centurys last fiscal year, Mr. Edelman
is not, and has not been, an executive officer or more than 10% record or beneficial owner of any
business or professional entity that (i) has made, or proposes to make, payments to New Century or
any of its subsidiaries in an amount for which disclosure would be required under the federal proxy
rules, (ii) has received, or proposes to receive, payments from New Century or any of its
subsidiaries in an amount for which disclosure would be required under the federal proxy rules or
(iii) to which New Century or any of its subsidiaries was indebted. Mr. Edelman is not associated
with or an owner of any law firm or investment banking firm.
Section 16 Reporting: Mr. Edelman has not failed to file any reports related to New Century that
are required by Section 16(a) of the Exchange Act.
Arrangement Relating to Employment; Family Relationships. Neither Mr. Edelman nor any of his
associates has any office or position with New Century or any arrangement or understanding with any
person with respect to any future employment by New Century or its affiliates or with respect to
any future transactions to which New Century or any of its affiliates will or may be a party.
There are no family relationships between any current director or executive officer of New Century
and Mr. Edelman or between Mr. Edelman and any Nominee. Mr. Edelman has not received any
compensation from New Century as a director or executive officer.
Arrangements Relating to Nomination: Mr. Edelman will enter into an indemnification agreement with
Greenlight LLC pursuant to which Greenlight LLC will indemnify such Nominee from and against any
losses incurred by such Nominee resulting from, relating to or arising out of his nomination for
election as a director of New Century at the 2006 Meeting, his election to the Board and his
serving on the Board. Each indemnification agreement will provide that if the Nominee is elected
to the Board, any indemnification of losses from Greenlight LLC shall apply only after giving
effect to any indemnification provided by New Century.
Interest in Matters to be Acted Upon: Mr. Edelman is a limited partner in Greenlight Qualified.
Due to its ownership interest in the Common Stock and its other interests relating to New Century
described above under Other Interests Relating to New Century, Greenlight Qualified has an
interest in the solicitation of proxies in support of the Nominees. The Nominees and Greenlight
LLC have an interest in the solicitation of proxies in support of the Nominees through the
indemnification agreements described above. The Nominees are expected to receive customary
compensation from New Century in exchange for their services as directors, if elected.
A-16
Greenlight LP believes that Mr. Edelman is independent for purposes of Rule 10A-3 of the Exchange
Act and Paragraph 303A.02 of the New York Stock Exchanges Listed Company Manual and is financially
literate. Therefore, Greenlight LP believes that Mr. Edelman is eligible to serve on New Centurys
Audit Committee, Compensation Committee or Nominating and Governance Committee.
A-17
Annex B
Consent of David Einhorn to be Named in Proxy and Serve as Director
[Attached]
B-1
CONSENT
TO BE NAMED
IN THE PROXY STATEMENT
AND
NOTICE OF NOMINATION
OF
GREENLIGHT CAPITAL, LP
RELATING TO
NEW CENTURY FINANCIAL CORPORATION
I, David Einhorn, (Nominee) hereby voluntarily consent to each of the following: (i) being
named as a nominee for election to the Board of Directors (the Board) of New Century Financial
Corporation, a Maryland corporation (the Corporation), at the 2006 Annual Meeting of the
Stockholders of the Corporation (the 2006 Meeting) in the notice of nomination to be delivered to
the Corporation by Greenlight Capital, LP or any of its affiliates (collectively, Greenlight);
(ii) being named as a nominee for election to the Board in the proxy statement (the Proxy
Statement) to be filed by Greenlight with the Securities and Exchange Commission and to be
distributed to stockholders of the Corporation prior to the 2006 Meeting; (iii) the public
disclosure of any of the information about myself required to be disclosed in the Proxy Statement;
and (iv) to serve as a director of the Corporation, if elected.
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Dated:
February 13, 2006
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/s/ DAVID EINHORN
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David Einhorn |
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Annex C
Consent of David A. Cohen to be Named in Proxy and Serve as Director
[Attached]
C-1
CONSENT
TO BE NAMED
IN THE PROXY STATEMENT
AND
NOTICE OF NOMINATION
OF
GREENLIGHT CAPITAL, LP
RELATING TO
NEW CENTURY FINANCIAL CORPORATION
I, David Cohen, (Nominee) hereby voluntarily consent to each of the following: (i) being
named as a nominee for election to the Board of Directors (the Board) of New Century Financial
Corporation, a Maryland corporation (the Corporation), at the 2006 Annual Meeting of the
Stockholders of the Corporation (the 2006 Meeting) in the notice of nomination to be delivered to
the Corporation by Greenlight Capital, LP or any of its affiliates (collectively, Greenlight);
(ii) being named as a nominee for election to the Board in the proxy statement (the Proxy
Statement) to be filed by Greenlight with the Securities and Exchange Commission and to be
distributed to stockholders of the Corporation prior to the 2006 Meeting; (iii) the public
disclosure of any of the information about myself required to be disclosed in the Proxy Statement;
and (iv) to serve as a director of the Corporation, if elected.
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Dated:
February 10, 2006
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/s/ DAVID COHEN
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David Cohen |
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Annex D
Consent of Thomas J. Edelman to be Named in Proxy and Serve as Director
[Attached]
D-1
CONSENT
TO BE NAMED
IN THE PROXY STATEMENT
AND
NOTICE OF NOMINATION
OF
GREENLIGHT CAPITAL, LP
RELATING TO
NEW CENTURY FINANCIAL CORPORATION
I, Thomas J. Edelman, (Nominee) hereby voluntarily consent to each of the following: (i)
being named as a nominee for election to the Board of Directors (the Board) of New Century
Financial Corporation, a Maryland corporation (the Corporation), at the 2006 Annual Meeting of
the Stockholders of the Corporation (the 2006 Meeting) in the notice of nomination to be
delivered to the Corporation by Greenlight Capital, LP or any of its affiliates (collectively,
Greenlight); (ii) being named as a nominee for election to the Board in the proxy statement (the
Proxy Statement) to be filed by Greenlight with the Securities and Exchange Commission and to be
distributed to stockholders of the Corporation prior to the 2006 Meeting; (iii) the public
disclosure of any of the information about myself required to be disclosed in the Proxy Statement;
and (iv) to serve as a director of the Corporation, if elected.
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Dated:
February 12, 2006
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/s/ THOMAS J. EDELMAN
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Thomas J. Edelman |
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