EXHIBIT 10.26
AMENDMENT NO. 2
TO
EMPLOYMENT AGREEMENT
This AMENDMENT NO.2 TO EMPLOYMENT AGREEMENT ("Amendment No. 2"), dated as
of December 23, 2005, is made between Asset Acceptance Holdings LLC, a Delaware
limited liability company (the Company") and XXXXX X. XXXXXXX XX. (the
"Executive").
RECITALS
1. Prior to the date hereof, the parties hereto entered into that certain
Employment Agreement, dated September 30, 2002, along with one amendment thereto
(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 further 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. Compensation; Benefits. Section 3(f) of the Employment Agreement is
hereby amended and restated in its entirety as follows:
(f) After the Executive's termination of employment with the Company, the
Company will arrange and pay for insurance coverage for the Executive, for
his lifetime, with respect to any medical or hospitalization expenses
incurred by him (to the extent such expenses are not paid by Medicare, or
any similar supplemental or successor government program); provided, that
(i) such coverage may be comparable in scope to, and subject to a maximum
lifetime dollar limit that is consistent with, the coverage provided under
the Company's health insurance plan for active employees that provides the
highest level of available benefits, as is in effect from time to time,
and (ii) the Executive agrees to enroll in and maintain during his
lifetime, all coverages available to him under Medicare, and any similar
supplemental or successor government programs. To the extent that such
coverage is deemed to be taxable to the Executive, the Company will pay to
him such additional amount as is required to offset the amount of any tax
which is payable for any calendar year with respect to both the coverage
and the additional amount paid to offset the tax; provided
that such amount shall be paid to the Executive no later than 2-1/2 months
after the end of the calendar year to which such tax relates.
B. 409A Tax Matters. The Employment Agreement is hereby amended by the
addition of a new Section 24 to read as follows:
24. Tax Matters. Notwithstanding any other provision of this Agreement,
the parties hereto agree to take all actions (including adopting
amendments to this Agreement) as are required to comply with or to
minimize any potential interest charges and/or additional taxes as may be
imposed under Internal Revenue Code Section 409A with respect to any
payment or benefit due to Executive under this Agreement (including a
delay in payment until six months after the date of termination of
Executive's employment hereunder, in the event Executive is a "specified
employee" within the meaning of Code Section 409A).
C. Miscellaneous.
(1) Effective Date. This Amendment No. 2 shall be effective as of
the date first set forth above.
(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. 2 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. 2 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. 2,
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. 2 as of the day and year first above written.
ASSET ACCEPTANCE HOLDINGS LLC
By: /s/ Xxxxxxxxx X. Xxxxxxx XX
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Xxxxxxxxx X. Xxxxxxx XX,
President and Chief Executive Officer
/s/ Xxxxx X. Xxxxxxx, Xx.
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XXXXX X. XXXXXXX, XX.
