EXHIBIT 10.20
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EMPLOYMENT AGREEMENT
between
ASSET ACCEPTANCE HOLDINGS LLC
and
XXXX X. XXXXXX
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Dated as of September 30, 2002
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TABLE OF CONTENTS
PAGE
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1. Employment; Term................................ 1
2. Position and Duties............................. 1
3. Compensation; Benefits.......................... 2
4. Exclusivity..................................... 3
5. Reimbursement for Expenses...................... 3
6. Termination..................................... 3
7. Confidentiality and Non Competition............. 6
8. Deductions from Compensation.................... 9
9. Termination Benefits............................ 9
10. Injunctive Relief............................... 10
11. Extension of Restricted Periods................. 10
12. Successors; Binding Agreement................... 10
13. Waiver and Modification......................... 10
14. Severability.................................... 11
15. Submission to Jurisdiction; Venue............... 11
16. WAIVER OF JURY TRIAL............................ 12
17. Blue Pencilling................................. 12
18. Notices......................................... 12
19. Captions and Paragraph Headings................. 13
20. Entire Agreement................................ 13
21. Counterparts.................................... 14
22. Acknowledgment and Independent Legal Advice..... 14
23. Governing Law................................... 14
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT is made and entered into this 30th
day of September, 2002, among ASSET ACCEPTANCE HOLDINGS LLC, a Delaware limited
liability company (the "Company"), and XXXX X. XXXXXX (the "Executive").
The Company acquired (the "Acquisition") substantially all of
the assets of AAC Holding Corp., a Nevada corporation and its subsidiaries and
affiliated entities (the "AAC Operating Companies") pursuant to a certain Asset
Contribution and Securities Purchase Agreement dated as of September 30, 2002,
among the Company, AAC Holding Corp., Consumer Credit Corp., a Michigan
corporation, the holders, directly or indirectly, of all the outstanding capital
stock of the AAC Operating Companies, and AAC Investors, Inc., a Virginia
corporation (the "Contribution Agreement"). The Executive has served the AAC
Operating Companies (or their predecessors) continuously during the past four
(4) years as a principal executive officer. The Executive's services have
constituted a material factor in the successful growth and development of the
AAC Operating Companies. The Company desires to retain the unique experience,
ability and services of the Executive and to prevent any other competitive
business from securing his services and utilizing his experience, background and
know-how.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements contained herein, the parties hereto agree as follows:
1. EMPLOYMENT; TERM. The Company hereby agrees to employ the
Executive and the Executive hereby accepts employment with the Company, on the
terms and subject to the conditions hereinafter set forth in this Agreement. The
Executive's employment hereunder shall commence on the date hereof and shall end
on the third (3rd) anniversary of the date hereof unless otherwise terminated or
extended pursuant to the terms of this Agreement (the "Employment Period"). In
the event the Executive continues to be employed after the expiration of the
Employment Period or any extension (deemed or otherwise) thereof, and this
Agreement is not terminated or renewed in writing, then his employment (and the
Employment Period) shall be extended for a period of one year, and any other
provisions of this Agreement, to the extent applicable, shall remain in full
force and effect.
2. POSITION AND DUTIES. Subject to the terms and conditions
contained herein, the Executive shall serve as Chief Financial Officer of the
Company and, in such capacity, shall provide such services and perform such
functions, consistent with the nature of such position, as shall be determined
from time to time by, or pursuant to authority of, the board of directors of the
Company (the "Board of Directors") and such other reasonable duties as are from
time to time agreed to between the Chairman of the Board of Directors and the
Executive. The Executive shall have the authority set forth in the Authorization
Limits set forth in Schedule 1 attached hereto as such Schedule shall be amended
from time to time by the Board of Directors. The Executive shall observe all
directives, rules, policies, regulations, customs and practices now or hereafter
established by the Company for the conduct of its business to the extent the
foregoing are not materially inconsistent with the terms of this Agreement. The
Executive understands and agrees that he may be required to undertake normal
business travel from time to time.
3. COMPENSATION; BENEFITS.
(a) As compensation for the performance of the
Executive's services hereunder, the Company shall pay to the Executive
an annual salary (the "Regular Base Salary") of $160,000 (less
deductions required by law) payable in arrears in accordance with the
Company's payroll policy as the same may be modified by the Company
from time to time. So long as this Agreement is in effect, the Regular
Base Salary shall be subject to annual review, but shall not be reduced
below $160,000.
(b) The Executive shall be entitled to participate in the
Company's Annual Incentive Compensation Plan for Key Management (the
"Incentive Plan"), the terms and conditions of which, including the
approval of Management's Annual EBITDA Forecast, will be determined by
the Board of Directors from time to time, but shall be substantially in
accordance with Schedule 2 hereto. Pursuant to such Plan, if
Management's Annual EBITDA Forecast is achieved with respect to a
fiscal year commencing with the fiscal year ending December 31, 2002,
the Executive shall be entitled to receive in respect to such fiscal
year an annual cash bonus (the "Bonus"), payable within thirty days
after approval by the Board of Directors of the Company's audited
financial statements following the end of such fiscal year. The terms
and conditions of the Incentive Plan for the fiscal year ending
December 31, 2002 are set forth in Schedule 2 hereto; provided that any
Bonus payable for the fiscal year ending December 31, 2002, shall be
pro rated as set forth in Schedule 2. Upon termination of employment,
all rights to receive any Bonus for any period shall also terminate;
provided, that if the Executive's employment is terminated during a
fiscal year under the circumstances contemplated by Section 6(c) or
6(d) and Management's Annual EBITDA Forecast for such fiscal year is
achieved, the Executive shall be entitled to receive the pro rata
portion (based upon the number of days in such fiscal year that the
Executive was employed by the Company) of the Bonus, if any, that would
have been paid to the Executive pursuant to this Section 3(b) at the
time such Bonus would have been paid had the Executive's employment not
been terminated under the circumstances contemplated by Section 6(c) or
6(d).
(c) During the Employment Period, the Executive shall be
entitled to receive such other benefits and conditions of employment,
including, without limitation, participation in such group health,
life, and disability plans provided by the Company (such benefits
collectively, the "Welfare Benefits"), as are afforded from time to
time hereafter to the other senior executives of the Company with
similar position, tenure, salary and other qualifications as the
Executive's; provided that such Welfare Benefits shall be substantially
the same as those enjoyed by the Executive with the AAC Operating
Companies prior to the date hereof as set forth in Schedule 3.22 to the
Contribution Agreement. The Executive acknowledges and agrees that the
Company does not guarantee the adoption of any particular employee
benefit plan or program or other fringe benefit during the Employment
Period, and participation by the Executive in any such plan or program
shall be subject to the rules and regulations applicable thereto.
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(d) During the Employment Period the Executive shall be
entitled to four (4) weeks' paid vacation during each full calendar
year to be scheduled at the mutual convenience of the Executive and the
Company. Any vacation not taken during a calendar year shall be
forfeited. For 2002, the Executive's four (4) weeks of paid vacation
shall include paid vacation time taken in 2002 and prior to the date
hereof.
(e) During the Employment Period the Company shall
provide the Executive with a $500.00 per month allowance for an
automobile for the Executive's business and personal use.
4. EXCLUSIVITY. During the Employment Period, and excluding any
periods of vacation and sick leave to which the Executive is entitled, the
Executive shall devote his full attention and time during normal business hours
to the business and affairs of the Company, shall perform his services primarily
at the Company's headquarters, wherever the Board of Directors may from time to
time designate them to be, but in any case, within a 50 mile radius of Detroit,
Michigan, and at all times use his best efforts to carry out such
responsibilities faithfully and efficiently and to advance the business of the
Company. During the Employment Period, the Executive will not be engaged in any
other business activity which, in the reasonable judgment of the Board of
Directors or its designee, conflicts with the duties of the Executive hereunder,
whether or not such activity is pursued for gain, profit or other pecuniary
advantage. It shall not be considered a violation of the foregoing for the
Executive to (i) serve on civic or charitable boards or committees, (ii) deliver
lectures, fulfill speaking engagements or teach at educational institutions and
(iii) manage personal investments, including the Executive's involvement in Arco
Iris and FMC of Brasil, two Brazilian entities, in a manner consistent with
Xxxxx X. Xxxxxxx, Xx.'s and Xxxxxxxxx X. Xxxxxxx IV's current involvement, so
long as such activities do not compete with and are not provided to or for any
entity that competes with or intends to compete with the Company or any of its
subsidiaries and affiliates and do not interfere significantly with the
performance of the Executive's responsibilities as an employee of the Company in
accordance with this Agreement.
5. REIMBURSEMENT FOR EXPENSES. Upon the presentation of itemized
vouchers and receipts to the reasonable satisfaction of the Company, the Company
shall reimburse the Executive for travel, meals, entertainment and other
expenses reasonably incurred by the Executive in the performance of his duties
under this Agreement in accordance with the Company's expense reimbursement
policy as the same may be modified by the Company from time to time.
6. TERMINATION.
(a) The Company shall be entitled to terminate this
Agreement and the employment relationship established hereby
immediately for Cause by giving written notice of termination to the
Executive of such termination in the event of the following:
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(i) continual or deliberate neglect by
the Executive in the performance of his material duties under
this Agreement;
(ii) failure by the Executive to devote
substantially all of his working time to the business of the
Company and its Subsidiaries in accordance with Section 4
hereof;
(iii) the Executive's willful failure to
follow the directives of the Board of Directors of the Company
in any material respect; provided that such directives are not
materially inconsistent with the terms of this Agreement;
(iv) the Executive's engaging willfully
in misconduct in connection with the performance of any of his
or her duties hereunder which is reasonably likely to result,
in the Board's good faith judgment, in material injury to the
reputation of the Company or any of its Subsidiaries,
including, without limitation, the misappropriation of funds;
(v) the Executive's breach of the
provisions of Section 7 or 8 of this Agreement or any other
noncompetition, noninterference, nondisclosure,
confidentiality or other similar agreement executed by the
Executive with the Company or any of its Subsidiaries; or
(vi) the Executive's engaging in conduct
which is reasonably likely to result, in the Board's good
faith judgment, in material injury to the reputation of the
Company or any of its Subsidiaries, including, without
limitation, commission of a felony, fraud, embezzlement or
other crime involving moral turpitude;
provided that with respect to the events set forth in clauses (i)
through (iii), the Executive shall have been given written notice of
the act, omission or event constituting Cause and shall not have cured
such act, omission or event within 30 days after the giving of such
notice.
After the effective date of termination under this Section
6(a), the Company shall not be obligated to make any further payments
to the Executive under this Agreement, except for amounts due the
Executive hereunder as of such effective date or amounts or benefits to
which the Executive may be entitled under the terms of any employee
benefit plan of the Company.
(b) In the event that the Executive resigns, other than
upon Retirement or for Substantial Breach (as those terms are
hereinafter defined), this Agreement and the employment relationship
established hereby shall terminate immediately upon the receipt
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by the Company of notice of the Executive's resignation. After the
effective date of termination under this Section 6(b), the Company
shall not be obligated to make any further payments under this
Agreement, except for amounts due the Executive hereunder as of such
effective date or for amounts or benefits to which the Executive may be
entitled under the terms of any employee benefit plan of the Company.
(c) In the event that the Executive dies, Retires (as
hereinafter defined) or becomes Disabled (as hereinafter defined)
during the term of this Agreement, this Agreement and the employment
relationship established hereby shall terminate immediately upon the
date on which the Executive dies, Retires or becomes Disabled, as the
case may be. After the effective date of termination under this Section
6(c), the Company shall not be obligated to make any further payments
under this Agreement, other than payment to the Executive or the
Executive's heirs, devisees, executors, administrators, legal
representatives or the trustee of a revocable trust of which the
Executive is the grantor, as the case may be, of (i) all amounts due
the Executive hereunder as of such effective date, including any
amounts or benefits to which the Executive may be entitled under the
terms of any employee benefit plan of the Company, as in effect on the
effective date of such termination and (ii) the pro rata portion of the
Bonus, if any, due to the Executive in accordance with Section 3(b).
For purposes of this Section 6(c) "Retires" or "Retirement" shall mean
the voluntary termination of employment by the Executive after the
Executive attains age 65 and "Disabled" shall mean, as of any date, the
inability of the Executive to perform his essential duties hereunder
without reasonable accommodation for a period of six months as
determined in the good faith judgment of the Board of Directors.
(d) In the event that (i) the Company elects to terminate
the employment of the Executive prior to the expiration of the
Employment Period (other than pursuant to paragraphs (a) through (c) of
this Section 6), or (ii) the Executive resigns from his employment
hereunder following a Substantial Breach, as defined in this Section
6(d) (such Substantial Breach having not been corrected by the Company
within 30 days of receipt of written notice from the Executive of the
occurrence of such Substantial Breach, which notice shall specifically
set forth the nature of the Substantial Breach which is the reason for
such resignation), then, in either such event, the Company shall
continue to pay the Executive as provided in Section 9 hereof.
"Substantial Breach" shall mean any material breach by the
Company of its obligations under this Agreement including without
limitation, (i) the assignment of the Executive to a position or duties
materially inconsistent with those normally assigned to a chief
financial and administrative officer of a business enterprise
comparable to the Company; (ii) a reduction in the Executive's Regular
Base Salary below $160,000; (iii) a change in the location at which the
Executive is required to perform his duties for the Company and its
Subsidiaries which is outside a 50 mile radius of Detroit, Michigan; or
(iv) the failure by the Company to allow the Executive to participate
in the Company's
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employee benefit plans or incentive compensation plans generally
available from time to time to senior executives of the Company in
comparable positions; provided, that the term "Substantial Breach"
shall not include (X) an immaterial breach by the Company of any
provisions of this Agreement or (Y) a termination for Cause under
paragraph (a) of this Section 6.
The date of termination of employment by the Company under
this Section 6(d) (the "Section 6(d) Termination Date") shall, as the
case may be, be the later of the date, if any, specified in a written
notice of termination to the Executive or the date on which such notice
is given to the Executive. The date of resignation under this Section
6(d) shall be 30 days after receipt by the Company of written notice of
resignation; provided that the Substantial Breach specified in such
notice shall not have been corrected by the Company during such 30-day
period.
(e) Notwithstanding anything in this Section 6 to the
contrary, but subject to the consequences set forth in this Section 6,
(i) the Company may terminate the Executive's employment at any time
with or without Cause, (ii) the Executive may terminate his employment
at any time whether or not there has been a Substantial Breach and
(iii) the Executive's rights in any employee benefit plans offered by
the Company shall be governed by the rules of such plans as well as by
applicable law.
(f) Notwithstanding anything in this Section 6 to the
contrary, the provisions of Sections 7 and 8 shall survive termination
of this Agreement.
7. CONFIDENTIALITY AND NON COMPETITION. The Executive
acknowledges that (i) the agreements and covenants contained herein are
essential to protect the Company's business and assets and (ii) by virtue of his
past and continued association with the AAC Operating Companies, the Executive
had access to and has obtained and will continue to have access to and obtain
such knowledge, know-how, proprietary information, training and experience,
which is known only to the members, officers or managers of the AAC Operating
Companies, or other employees, former employees, consultants, or others in a
confidential relationship with the Company and its subsidiaries, and there is a
substantial probability that such knowledge, know-how, proprietary information,
training and experience could be used to the substantial advantage of a
competitor of the Company and to the Company's substantial detriment.
(a) COVENANT NOT TO COMPETE.
(i) The Executive agrees that, for the period commencing
on the date of this Agreement and ending on the date which is the later
of (A) one year after the termination of the Executive's employment and
(B) the date the Company ceases making to the Executive the severance
payments, if any, required to be made pursuant to Section 6 (the
"Restricted Period"), the Executive shall not, in the Territory
(hereinafter defined), directly or indirectly, either for himself or
for, with or through any other Person, own,
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manage, operate, control, be employed by, participate in, loan money to
or be connected in any manner with, or permit his name to be used by,
any business which is engaged in the business of purchasing and
collecting Charged Off Accounts and financing sales of consumer product
retailers (a "Competitive Activity"); provided that (A) the Company
may, at its option, extend the Restricted Period for up to one
additional year by continuing to pay to the Executive on the regular
payment dates the Executive's regular installments of Regular Base
Salary as in effect on the day immediately preceding the date of
termination and (B) this Section 7(a) shall not prohibit including the
Executive's in Arco Iris and FMC of Brasil, two Brazilian entities, in
a manner consistent with Xxxxx X. Xxxxxxx, Xx.'s and Xxxxxxxxx X.
Xxxxxxx IV's current involvement.
(ii) For purposes of this Agreement, the term
"participate" includes any direct or indirect interest, whether as an
officer, director, employee, partner, sole proprietor, trustee,
beneficiary, agent, representative, independent contractor, consultant,
advisor, provider of personal services, creditor, owner (other than by
ownership of less than one (1) percent of the stock of a corporation
that has a class of equity securities registered under the Securities
Exchange Act of 1934 (a "Public Company")). Territory means North
America, South America, Europe and Asia.
(b) NONDISCLOSURE OF CONFIDENTIAL INFORMATION.
(i) The Executive shall not, whether during or after
employment, disclose to any person or entity or use, any information
not in the public domain, in any form, acquired by the Executive while
he was employed or associated with the Company or the AAC Operating
Companies or, if acquired following the termination of such
association, such information which, to the Executive's knowledge, has
been acquired, directly or indirectly, from any person or entity owing
a duty of confidentiality to the Company, the AAC Operating Companies
or their business (the "Confidential Information"). By way of
illustration but not limitation, Confidential Information may include
trade secrets, Charged Off Accounts supplier lists, collection methods,
information regarding bulk purchases of Charged Off Accounts, employee
compensation arrangements, business practices, plans, policies, secret
inventions, processes and compilations of information, records and
specifications, as well as information related to the management
policies and plans for the Company or the AAC Operating Companies.
(ii) Notwithstanding the foregoing, the restrictions in
subsection (b)(i) of this Section 7 are not applicable to the
disclosure of use of Confidential Information in connection with the
following: (A) in the course of faithfully performing the Executive's
duties as an employee of the Company; (B) with the Company's express
written consent; (C) to the extent that any such Confidential
Information is in the public domain other than as a result of the
Executive's breach of any of his obligations hereunder; or (D) where
required to be disclosed by court order, subpoena or other governmental
process.
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In the event that the Executive shall be required to make disclosure
pursuant to the provisions of clause (D) of the preceding sentence, the
Executive promptly (but in no event more than forty-eight (48) hours
after learning of such subpoena, court order, or other governmental
process) shall notify the Company in writing, by personal delivery or
by facsimile, confirmed by mail or by certified mail, return receipt
requested.
(iii) The Executive agrees and acknowledges that all of
such Confidential Information, in any form, and copies and extracts
thereof are and shall remain the sole and exclusive property of the
Company, and the Executive shall on request return to the Company the
originals and all copies of any such information provided to or
acquired by the Executive in connection with his association with the
AAC Operating Companies or the Company, and shall return to the Company
all files, correspondence and/or other communications received,
maintained and/or originated by the Executive during the course of such
association.
(c) NO INTERFERENCE. During the Restricted Period, the
Executive shall not, without the prior written approval of Investors,
directly or indirectly through any other Person (i) induce or attempt
to induce any employee of the Company to leave the employ of the
Company, or in any way interfere with the relationship between the
Company and its subsidiaries and any employee thereof, (ii) hire any
Person who was an employee of the Company or any of its subsidiaries
within twelve months after such Person's employment with the Company
and its subsidiaries was terminated for any reason, (iii) induce or
attempt to induce any supplier of Charged Off Accounts or other
business relation of the Company or any of its subsidiaries to cease
doing business with the Company or its subsidiaries, or in any way
interfere with the relationship between any such supplier or business
relation and the Company and its subsidiaries or (iv) acquire Charged
Off Accounts from any Person that was a seller of Charged Off Accounts
to the Company or its subsidiaries during the twelve (12) month period
immediately preceding the date of termination of the Restricted Period;
provided that (A) the Company may, at its option, extend the Restricted
Period for up to one additional year by continuing to pay to the
Executive on the regular payment dates the Executive's regular
installments of Regular Base Salary as in effect on the day immediately
preceding the date of termination and (B) this Section 7(c) shall not
prohibit including the Executive's involvement in Arco Iris and FMC of
Brasil, two Brazilian entities, in a manner consistent with Xxxxx X.
Xxxxxxx, Xx.'s and Xxxxxxxxx X. Xxxxxxx IV's current involvement.
(d) INVENTIONS. The Executive hereby sells, transfers and
assigns to the Company or to any person or entity designated by the
Company all of the entire right, title and interest of the Executive in
and to all inventions, ideas, disclosures and improvements, whether
patented or unpatented, and copyrightable material, made or conceived
by the Executive, solely or jointly, or in whole or in part, during his
employment (including employment prior to the date hereof) by the
Company which are not generally known to the public or recognized as
standard practice and which (i) relate
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to methods, apparatus, designs, products, processes or devices sold,
leased, used or under construction or development by the Company or any
subsidiary and (ii) arise (wholly or partly) from the efforts of the
Executive during his employment with the Company (an "Invention"). The
Executive shall communicate promptly and disclose to the Company, in
such form as the Company requests, all information, details and data
pertaining to any such Inventions; and, whether during the Restricted
Period or thereafter, the Executive shall execute and deliver to the
Company such form of transfers and assignments and such other papers
and documents as reasonably may be required of the Executive to permit
the Company or any person or entity designated by the Company to file
and prosecute the patent applications and, as to copyrightable
material, to obtain a copyright thereon. The Company shall pay all
costs incident to the execution and delivery of such transfers,
assignments and other documents. Any invention by the Executive within
six months following the termination of his employment hereunder shall
be deemed to fall within the provisions of this Section 7(d) unless the
Executive bears the burden of proof of showing that the Invention was
first conceived and made following such termination.
8. DEDUCTIONS FROM COMPENSATION. The Executive agrees that the
Company shall be entitled to deduct and withhold from any compensation payable
to the Executive hereunder (i) any taxes in respect of the Executive that the
Company is required to deduct and withhold under federal, state or local law
whether arising from compensation hereunder or otherwise and (ii) any other
amounts lawfully due from the Executive as determined in good faith by the
Company and/or the Board of Directors. In the event that the Executive is no
longer employed by the Company at a time when the Company otherwise would be
entitled to deduct and withhold any amount pursuant to the preceding sentence,
the Executive shall remit such amount to the Company within five days after the
receipt of notice from the Company specifying such amount or otherwise in
accordance with the Executive's obligations with respect thereto.
9. TERMINATION BENEFITS. If the Executive's employment with the
Company is terminated pursuant to Section 6(d) hereof, the Executive shall be
entitled to receive as his sole and exclusive remedy the termination benefits
provided under this Section 9.
(a) COMPENSATION-REGULAR BASE SALARY AND BONUS. In lieu
of notice, if any, required under applicable law which may be in force
from time to time, for a period of two (2) years after the Section 6(d)
Termination Date, (i) the Executive shall be paid periodically,
according to the Company's payroll policy, his Regular Base Salary at
the rate in effect on the Section 6(d) Termination Date and (ii) the
Executive shall be paid the pro rata portion of the Bonus, if any, due
to the Executive in accordance with Section 3(b) as if his employment
had continued until the second anniversary of the Section 6(d)
Termination Date; provided that the Company, in its sole discretion,
may elect to pay the Executive's Regular Base Salary for up to one
additional year for the purpose of extending the term of the
Executive's covenants set forth in Sections 7(a) and 7(c). The
Executive shall not be entitled to any further notice, severance pay,
pay in lieu of notice or any compensation whatsoever, except any
amounts owning under this Agreement.
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The Executive agrees that the foregoing notice is deemed conclusively
to be reasonable notice of termination at common law and the Executive
is not entitled to any additional notice or pay in lieu of notice or
severance pay. The Executive acknowledges that the Company has drawn
his attention to the provisions contained herein prior to executing
this Agreement.
(b) WELFARE BENEFITS, ETC. The Company shall pay the
costs necessary to continue the Executive's participation pursuant to
COBRA for a period of 18 months following the Section 6(d) Termination
Date (including dependent coverage) in any life, disability, group
health and dental benefit plans provided by the Company, in effect
immediately prior to the Section 6(d) Termination Date, and thereafter
the Company shall pay the cost of providing comparable benefits until
the second anniversary of the Section 6(d) Termination Date. Following
the Section 6(d) Termination Date, the Company shall not be obligated
to (i) provide business accident insurance covering the Executive and
(ii) make contributions in respect of the Executive to any qualified
retirement and pension plans or profit sharing plans.
10. INJUNCTIVE RELIEF. Without intending to limit the remedies
available to the Company, the Executive acknowledges that a breach of any of the
covenants contained in Section 7 hereof may result in material irreparable
injury to the Company or its affiliates for which there is no adequate remedy at
law, that it will not be possible to measure damages for such injuries precisely
and that, in the event of such a breach or threat thereof, the Company shall be
entitled to obtain a temporary restraining order and/or a preliminary or
permanent injunction restraining the Executive from engaging in activities
prohibited by Section 7 hereof or such other relief as may be required to
specifically enforce any of the covenants in Section 7 hereof. The Executive
hereby agrees and consents that such injunctive relief may be sought in any
state or federal court of record in Xxxx County, Illinois, or in the state in
which such violation may occur, or in any other court having jurisdiction, at
the election of the Company.
11. EXTENSION OF RESTRICTED PERIODS. In addition to the remedies
the Company may seek and obtain pursuant to Section 10 of this Agreement, the
restricted periods set forth therein shall be extended by any and all periods
during which the Executive shall be found by a court to have been in violation
of the covenants contained in Section 7 hereof.
12. SUCCESSORS; BINDING AGREEMENT. This Agreement is personal to
the Executive and, without the prior written consent of the Company, shall not
be assignable by the Executive otherwise than by will, the laws of descent and
distribution or the terms of a revocable trust of which the Executive is the
grantor. This Agreement shall inure to the benefit of and be enforceable by the
Executive's legal representatives. This Agreement shall inure to the benefit of
and be binding upon the Company and its successors and assigns.
13. WAIVER AND MODIFICATION. Any waiver, alteration or
modification of any of the terms of this Agreement shall be valid only if made
in writing and signed by the parties hereto;
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provided that any such waiver, alteration or modification is consented to on the
Company's behalf by the Board of Directors. No waiver by either of the parties
hereto of their rights hereunder shall be deemed to constitute a waiver with
respect to any subsequent occurrences or transactions hereunder unless such
waiver specifically states that it is to be construed as a continuing waiver.
14. SEVERABILITY. The Executive acknowledges and agrees that the
covenants set forth in Section 7 hereof are reasonable and valid in geographical
and temporal scope and in all other respects. If any of such covenants or such
other provisions of this Agreement are found to be invalid or unenforceable by a
final determination of a court of competent jurisdiction (i) the remaining terms
and provisions hereof shall be unimpaired and (ii) the invalid or unenforceable
term or provision shall be deemed replaced by a term or provision that is valid
and enforceable and that comes closest to expressing the intention of the
invalid or unenforceable term or provision.
15. SUBMISSION TO JURISDICTION; VENUE.
(a) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS
AGREEMENT OR ANY TRANSACTIONS CONTEMPLATED HEREBY SHALL BE BROUGHT IN
THE COURTS OF THE COMMONWEALTH OF VIRGINIA OR THE STATE OF MICHIGAN OR
IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF
VIRGINIA SITTING IN RICHMOND, VIRGINIA, OR THE UNITED STATES DISTRICT
COURT FOR THE EASTERN DISTRICT OF MICHIGAN SITTING IN DETROIT,
MICHIGAN, AND, BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH OF THE
PARTIES HEREBY ACCEPTS FOR HIMSELF, HERSELF OR ITSELF AND IN RESPECT OF
HIS, HER OR ITS PROPERTY GENERALLY AND UNCONDITIONALLY, THE
NON-EXCLUSIVE JURISDICTION OF THE AFORESAID COURTS. EACH OF THE PARTIES
IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OUT OF ANY OF THE
AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING BY MAILING
COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO
SUCH PARTY AT HIS, HER OR ITS ADDRESS AS PROVIDED IN SECTION 18 HEREOF.
NOTHING IN THIS PARAGRAPH (a) SHALL AFFECT THE RIGHT OF ANY PARTY TO
SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL
PROCEEDINGS IN ANY OTHER JURISDICTION.
(b) EACH PARTY HEREBY IRREVOCABLY WAIVES ANY OBJECTIONS
WHICH HE, SHE OR IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF
ANY OF THE AFORESAID ACTIONS OR PROCEEDINGS ARISING OUT OF OR IN
CONNECTION WITH THIS AGREEMENT BROUGHT IN THE COURTS REFERRED TO IN
PARAGRAPH (a) OF THIS SECTION 15 AND HEREBY FURTHER IRREVOCABLY WAIVES
AND
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AGREES NOT TO PLEAD OR CLAIM IN ANY SUCH COURT THAT ANY ACTION OR
PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM.
(c) WITHOUT LIMITING THE GENERALITY OF THE FOREGOING,
EACH OF THE PARTIES TO THIS AGREEMENT AGREES THAT, AT THE TIME OF ANY
SUCH ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY
TRANSACTIONS CONTEMPLATED HEREBY, EACH OF THE PARTIES WILL EXECUTE SUCH
INSTRUMENTS AND OTHER DOCUMENTS AS MAY BE NECESSARY TO CONSENT TO AND
WAIVE ANY OBJECTION TO VENUE AND JURISDICTION IN THE COURTS IDENTIFIED
IN SUBSECTIONS (a) AND (b) ABOVE.
16. WAIVER OF JURY TRIAL. EACH PARTY ACKNOWLEDGES AND AGREES THAT
ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE
COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH PARTY HEREBY IRREVOCABLY
AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN
RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO
THIS AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.
17. BLUE PENCILLING. In the event that, notwithstanding the first
sentence of Section 14 hereof, any of the provisions of Section 7 relating to
the geographic or temporal scope of the covenants contained therein or the
nature of the business restricted thereby shall be declared by a court of
competent jurisdiction to exceed the maximum restrictiveness such court deems
enforceable, such provision shall be deemed to be replaced herein by the maximum
restriction deemed enforceable by such court.
18. NOTICES. All notices required to be given hereunder shall be
in writing and shall be deemed to have been given if (i) delivered personally or
by documented courier or delivery service, (ii) transmitted by facsimile or
(iii) mailed by registered or certified mail (return receipt requested and
postage prepaid) to the following listed persons at the addresses and facsimile
numbers specified below, or to such other persons, addresses or facsimile
numbers as a party entitled to notice shall give, in the manner hereinabove
described, to the others entitled to notice:
In the case of the Company:
Asset Acceptance Holdings LLC
0000 Xxxxxx Xxxx
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxxxx X. Xxxxxxx XX
Facsimile No.: 000-000-0000
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with copies to:
Quad-C Management, Inc.
000 Xxxx Xxxx Xxxxxx
Xxxxxxxxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx
Facsimile No.: 434-979-1145
and to:
McGuireWoods LLP
Xxx Xxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx
Facsimile No.: 000-000-0000
In the case of the Executive:
Xxxx X. Xxxxxx
0000 Xxxx Xxxxx
Xxxxxxxxx, XX 00000
Facsimile No.: 000-000-0000
with a copy to:
Xxxxxx Xxxxxxx PLLC
000 Xxxxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: J. Xxxxxxx Xxxxxxx, Esq.
Facsimile No.: 000-000-0000
Notice pursuant hereto shall be deemed given (i) if delivered personally, when
so delivered, (ii) if given by facsimile, when transmitted to the facsimile
number set forth above, when so transmitted if transmitted during normal
business hours at the location to which it is transmitted or upon the opening of
business on the next Business Day if transmitted other than during normal
business hours at the location to which it is transmitted and (iii) if given by
mail, on the third business day following the day on which it was posted.
19. CAPTIONS AND PARAGRAPH HEADINGS. Captions and section headings
herein are for convenience only, are not a part hereof and shall not be used in
construing this Agreement.
20. ENTIRE AGREEMENT. This Agreement, including the Schedules
hereto, constitutes the entire understanding and agreement of the parties hereto
regarding the employment of the Executive, and supersedes all prior agreements
and understandings between the parties.
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21. COUNTERPARTS. This Agreement may be executed in counterparts,
each of which shall be deemed an original, but all of which taken together shall
constitute one and the same instrument.
22. ACKNOWLEDGMENT AND INDEPENDENT LEGAL ADVICE. The Executive
acknowledges that he has read and understands this Agreement and that the
Company has advised him that the foregoing alters and supersedes his common law
rights. The Executive acknowledges that the Company has advised him to seek
legal advice prior to executing this Agreement.
23. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the domestic laws of the State of Michigan, without
giving effect to any choice of law or conflict of law provision or rule (whether
of the State of Michigan or any other jurisdiction) that would cause the
application of the laws of any jurisdiction other than the State of Michigan.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the day and year first above written.
ASSET ACCCEPTANCE HOLDINGS LLC
By: /s/ Xxxxxxx X. Xxxxxxxx
-----------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
/s/ Xxxx X. Xxxxxx
---------------------------------
Xxxx X. Xxxxxx
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FORM OF
AMENDMENT NO. 1
TO
EMPLOYMENT AGREEMENT
This AMENDMENT NO. 1 TO EMPLOYMENT AGREEMENT ("Amendment No. 1"), dated
as of January __, 2004, is made between ASSET ACCEPTANCE HOLDINGS LLC, a
Delaware limited liability company (the "Company") and XXXX X. XXXXXX (the
"Executive").
RECITALS
1. Prior to the date hereof, the parties hereto entered into that
certain Employment Agreement, dated September 30, 2002 (the "Employment
Agreement"). Capitalized terms not otherwise defined herein shall have the
respective meanings set forth in the Employment Agreement.
2. The parties hereto desire to amend the Employment Agreement in the
manner set forth below.
AGREEMENT
NOW THEREFORE, in consideration of these premises and subject to the
terms and conditions contained herein and for other consideration provided
herein, the parties agree as follows:
A. Employment; Term. The second sentence of Section 1 of the
Employment Agreement is hereby amended and restated in its entirety as follows:
The Executive's employment hereunder shall commence on
September 30, 2002 and shall end on December 31, 2006 unless
otherwise terminated or extended pursuant to the terms of this
Agreement (the "Employment Period").
B. Miscellaneous.
(1) Effective Date. This Amendment No. 1 shall be effective as
of the closing of the initial public offering described in the Registration
Statement on Form S-1 (Registration No. 333-109987), as amended, filed with the
Securities and Exchange Commission by Asset Acceptance Capital Corp.
(2) Continuation of Employment Agreement. Except as expressly
modified or amended hereby, all of the terms and conditions of the Employment
Agreement shall continue and remain in full force and effect.
(3) Counterparts. This Amendment No. 1 may be executed in any
number of counterparts, each of which shall be treated as an original but all of
which, collectively, shall constitute a single instrument.
(4) Governing Law. This Amendment No. 1 shall be governed by
and construed in accordance with the domestic laws of the State of Michigan,
without giving effect to any choice or conflict of law provision or rule
(whether of the State of Michigan or any other jurisdiction) that would cause
the application of the laws of any jurisdiction other than the State of
Michigan.
(5) Cooperation. In case at any time after the date hereof any
further action is necessary to carry out the purposes of this Amendment No. 1,
each of the parties hereto will take such further action (including the
execution and delivery of such further instruments and documents) as the other
party or parties reasonably may request, all at the sole cost and expense of the
requesting party or parties.
[Signatures Appear on the Following Page]
In WITNESS WHEREOF, the parties hereto have duly executed this
Amendment No. 1 as of the day and year first above written.
ASSET ACCEPTANCE HOLDINGS LLC
By:
-------------------------------
Xxxxxxxxx X. Xxxxxxx XX,
President and Chief Executive
Officer
----------------------------------
XXXX X. XXXXXX
