EXHIBIT 10.4
EXECUTION
EMPLOYMENT AGREEMENT
by and among
ASSET ACCEPTANCE HOLDINGS LLC
and
PREMIUM ASSET RECOVERY CORP.
and
XXXXXXXXXXX X. XXXXXX
--------------------------------
Dated as of April 28, 2006
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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.......................................................... 6
5. Reimbursement for Expenses........................................... 6
6. Termination.......................................................... 7
7. Confidentiality and Non Competition.................................. 9
8. Remedies............................................................. 12
9. Deductions from Compensation......................................... 12
10. Termination Benefits................................................. 13
11. Extension of Restricted Periods...................................... 14
12. Successors; Binding Agreement........................................ 14
13. Waiver and Modification.............................................. 14
14. Severability......................................................... 14
15. Submission to Jurisdiction; Venue.................................... 15
16. WAIVER OF JURY TRIAL................................................. 15
17. Blue Pencilling...................................................... 16
18. Notices.............................................................. 16
19. Captions and Paragraph Headings...................................... 17
20. Entire Agreement..................................................... 17
21. Counterparts......................................................... 17
22. Acknowledgment and Independent Legal Advice.......................... 17
23. Governing Law........................................................ 17
EMPLOYMENT AGREEMENT
This Employment Agreement (this "Agreement") is made and entered into as
of this 28th day of April, 2006 (the "Effective Date"), by and among Asset
Acceptance Holdings LLC, a Delaware limited liability company (the "Company"),
Premium Asset Recovery Corp., a Florida corporation ("PARC"), and Xxxxx Xxxxxx
(the "Executive").
BACKGROUND
A. The Company acquired 100% of the issued and outstanding shares of the
capital stock of PARC, pursuant to a certain Stock Purchase Agreement dated as
of April 26, 2006, among the Company, the Executive, and PARC's other
stockholders (the "Stock Purchase Agreement").
B. The Executive is PARC's founder and is currently a stockholder and has
served PARC continuously during the past eight (8) years as its principal
executive officer and the Executive's services have constituted a material
factor in the successful growth and development of PARC.
C. PARC 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.
D. The execution and delivery of this Agreement is a condition to the
consummation of the transactions contemplated by the Stock Purchase Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, the parties hereto agree as follows.
AGREEMENT
1. EMPLOYMENT; TERM. PARC hereby agrees to employ the Executive and the
Executive hereby accepts employment with PARC, on the terms and subject to the
conditions set forth in this Agreement. The Executive's employment hereunder
shall commence on the Effective Date and shall end on the third anniversary of
the Effective Date 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, the
Executive shall be an "at-will" employee of PARC who may terminate his
employment with PARC at any time, or the Executive may be terminated by PARC or
the Company, at any time, with or without Cause (as hereinafter defined).
2. POSITION AND DUTIES.
(a) Subject to the terms and conditions contained herein, the
Executive shall continue to serve as President of PARC 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
PARC (the "Board of Directors") and such other reasonable duties as are
from time to
time designated by the President of the Company. The Executive shall
observe all directives, rules, policies, regulations, customs and
practices now or hereafter established by PARC or the Company for the
conduct of its business to the extent the foregoing are not materially
inconsistent with the terms of this Agreement.
(b) The Executive understands and agrees that he may be required to
undertake normal business travel from time to time, however, not to exceed
30 Business travel days per year ("Business Travel Days"), provided that:
(i) the Executive shall be solely obligated annually to
provide written notice to the Board of Directors when the number of
Business Travel Days reaches 20 days (the "Travel Notice"), and upon
the Executive's failure to provide such Travel Notice, no Business
Travel Days occurring after the 20th Business Travel Day but prior
to the Board of Directors' receipt of the Travel Notice, shall count
toward the Business Travel Days;
(ii) any extraordinary business travel required by PARC with
respect to transactions or special projects mutually agreed to by
the Board of Directors and the Executive that are outside of the
ordinary course of PARC's business shall not count toward the
Business Travel Days; and
(iii) for purposes of this Section 2, a "Business Travel Day"
does not require an overnight stay by the Executive. Business travel
by the Executive less than 250 miles from Deerfield Beach, Florida
requiring an overnight stay shall constitute a "Business Travel
Day," however, in no event shall business travel by the Executive
less than 250 miles from Deerfield Beach, Florida in which the
Executive is not required to stay overnight be counted toward the
Executive's Business Travel Days.
3. COMPENSATION; BENEFITS.
(a) As compensation for the performance of the Executive's services
hereunder, PARC shall pay to the Executive an annual salary (the "Regular
Base Salary") of $250,000 (less deductions required by law) payable in
arrears in accordance with PARC's payroll policy as the same may be
modified by PARC from time to time, as such is applicable to all employees
of PARC. So long as this Agreement is in effect, the Regular Base Salary
shall be subject to annual review, but shall not be reduced below $250,000
per year.
(b) In addition to the Regular Base Salary, PARC shall pay the
Executive an annual profit sharing cash bonus beginning the fiscal year
ending December 31, 2006 (the "Annual Profit Sharing Bonus") calculated as
set forth in subsection (b) and (c). The Annual Profit Sharing Bonus shall
be based on PARC's earnings before interest, taxes, depreciation and
amortization for the applicable fiscal year, which earnings calculation
shall be equal to the following:
(i) the aggregate amount of cash collections on portfolios
owned by PARC. For purposes of this subsection (b)(i), "portfolios
owned by PARC" shall constitute those portfolios (A) owned by PARC
prior to the Effective Date, (B)
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owned by PARC prior to the Effective Date and transferred from PARC
after the Effective Date to another affiliate or subsidiary of Asset
Acceptance Capital Corp. ("AACC") for collection; (C) owned by AACC
and transferred to PARC for collection from an AACC affiliate or
subsidiary after the Effective Date, and (D) purchased by PARC from
any third-parties after the Effective Date (the "PARC Owned
Portfolios");
(ii) plus the aggregate amount of revenue PARC recognizes from
contingent collections;
(iii) minus the aggregate amount of PARC's operating expenses,
relating solely to the PARC Owned Portfolios, which include a proportional
cost of the internal and external services provided by the Company to
PARC. The proportional cost for services to be added back to the PARC
operating expenses for each fiscal year shall be an amount equal to (A)
the total amount of all shared administrative expenses for AACC on a
consolidated basis for the applicable fiscal year, multiplied by (B) a
fraction, the numerator of which is the aggregate sum of all collections
and contingent revenue of PARC for the applicable fiscal year and the
denomination of which is the aggregate sum of all collections and
contingent revenues for AACC on a consolidated basis for the applicable
fiscal year (the "Add Back Amount"). For purposes of this subsection
(b)(iii), the "shared administrative expenses," as reflected on AACC's
Consolidated Statement of Income, used to determine the Add Back Amount
shall include (A) administrative compensation, (B) payroll taxes and
related benefits relating to accounting and human resources, (C)
information technology, (D) regulatory compliance, (E) outside accounting
and tax services, (F) legal fees and costs (of an administrative, as
opposed to a collection nature), (G) investor relations and other
professional services, (H) direct Sarbanes Oxley costs, and (I) directors
fees and expenses; and
(iv) minus, without duplication (A) accruals for any cash bonuses
payable to PARC's senior executives, and (B) accruals and expenses
relating to legal and accounting fees incurred by PARC or the Company on
behalf of PARC's former shareholders in connection with the transactions
contemplated by the Stock Purchase Agreement (subsections (b)(i) - (iv)
constitute the "PARC EBITDA").
(c) Each of the financial measures in subsection (b) above shall be as
reflected on PARC's internally prepared financial statements used as part of the
consolidated financial statements of AACC, which PARC financial statements shall
be prepared consistent with the same policies and procedures as AACC uses in the
preparation of its consolidated audited financial statements. The Annual Profit
Sharing Bonus shall be payable thirty (30) days after AACC's Board of Directors
(or the appropriate committee of such board) approves PARC's financial
statements for the applicable fiscal year. The amount of the Annual Profit
Sharing Bonus for each fiscal year this Agreement is in effect shall be
determined as follows.
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(i) For purposes of this Section 3, the PARC EBITDA target
amounts upon which the Annual Profit Sharing Bonus shall be granted
shall be determined at the end of each fiscal year and shall be the
greater of (A) the prior fiscal year's PARC EBITDA, or (B) an amount
equal to $7,700,00 for fiscal 2006, $8,470,000 for fiscal 2007, and
$9,317,000 for fiscal 0000 (xxx "XXXX XXXXXX Xxxxx").
(ii) If the PARC EBITDA for the applicable fiscal year meets
or exceeds an amount equal to (A) that fiscal year's PARC EBITDA
Floor, plus (B) 10% of that fiscal year's PARC EBITDA Floor, then
the Annual Profit Sharing Bonus shall be equal to 2.5% of the PARC
EBITDA for the applicable fiscal year.
(iii) If the PARC EBITDA for the applicable fiscal year meets
or exceeds that fiscal year's PARC EBITDA Floor, but is 110% or less
than that fiscal year's PARC EBITDA Floor, then the Annual Profit
Sharing Bonus shall be equal to 1.25% of the PARC EBITDA for
applicable fiscal year.
(iv) If the PARC EBITDA for the applicable fiscal year is less
than that fiscal year's PARC EBITDA Floor, then the Annual Profit
Sharing Bonus shall be $0.
Notwithstanding the foregoing calculation, up to 25% of the Annual Profit
Sharing Bonus may be subject to the business objective measurements and policies
governing the performance of AACC's management, which objectives include
achieving budgeted investment in purchased receivables of $5,000,000 in medical
debt and $12,000,000 total debt and preparing PARC for compliance with required
Xxxxxxxx-Xxxxx Act Section 404 certification, and other relevant regulatory and
Xxxxxxxx-Xxxxx Act policies, by the end of 2006 that will be required beginning
in 2007.
Notwithstanding the foregoing to the contrary, all Annual Profit Sharing Bonus
amounts payable pursuant to Sections 3(b) and (c) shall be paid to the Executive
no later than 2-1/2 months after the end of the calendar year to which such
bonus amount relates.
(d) Upon termination of employment, all rights to receive any Annual
Profit Sharing 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 Sections 6(c) or 6(d) (each, a "Termination
Payment Event") and the PARC EBITDA Floor 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 PARC) of the Annual Profit Sharing Bonus, if any, that would
have been paid to the Executive pursuant to Section 3(b) and (c) at the
time the Annual Profit Sharing Bonus would have been paid had the
Executive's employment not been terminated due to a Termination Payment
Event. Notwithstanding the foregoing to the contrary, all Annual Profit
Sharing Bonus amounts payable pursuant to this Section 3(d) shall be paid
to the Executive no later than 2-1/2 months after the end of the calendar
year to which such bonus amount relates.
(e) The Executive shall also be granted 25,114 shares of restricted
stock (the "Restricted Shares") under AACC's 2004 Stock Incentive Plan
(the "Plan"), which shall
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vest as follows.
(i) 50% of the Restricted Shares shall vest on March 31, 2009,
if the PARC EBITDA (as defined in subsection (b) above) for the
fiscal year ending December 31, 2008 is greater than $10,248,700 but
equal to or less than $13,305,600, and the other 50% of the
Restricted Shares shall be forfeited.
(ii) 100% of the Restricted Shares shall vest on March 31,
2009, if the PARC EBITDA for the fiscal year ending December 31,
2008 is greater than $13,305,600.
(iii) If the Executive dies, Retires (as defined below) or
becomes Disabled (as defined below) or is terminated by PARC other
than pursuant to Section 6(a) (a "Not For Cause Termination") or a
"Substantial Breach" occurs before March 31, 2009, then a pro rata
number of the Restricted Shares shall vest on the date of the
Executive's death or the effective date the Executive Retires,
becomes Disabled or the termination of employment due to a
Substantial Breach or Not For Cause Termination (the "Pro Rata
Vesting Date"). The pro rata number of Restricted Shares shall be
determined by whether the PARC financial statements for the quarter
ended immediately prior to the Pro Rata Vesting Date projects that
PARC would achieve the cumulative compound annual growth rates
indicated by Sections 3(e)(i) and (ii). If the cumulative compound
annual growth rates are projected to be met as of the effective date
of employment termination or becoming Disabled, then the percentage
amount of Restricted Shares set forth in Sections 3(e)(i) and (ii),
as applicable, shall be pro rated based on the period of time
between the Effective Date and the Pro Rata Vesting Date relative to
the period of time between the Effective Date and December 31, 2008,
regardless of the cumulative compound annual growth rate of the PARC
EBITDA during such period.
(iv) All of the Restricted Shares shall be forfeited if either
(A) the PARC EBITDA for the fiscal year ending December 31, 2008 is
less than $10,248,700, (B) the Executive resigns before March 31,
2009 other than upon death, Disability, Retirement or a Substantial
Breach (as defined below), or (C) the Executive is terminated with
Cause by PARC before March 31, 2009.
(v) In the event of a "Change in Control" (as defined herein)
all of the Restricted Shares shall immediately vest prior to such
Change in Control. For the purpose of this Agreement a "Change in
Control" means the occurrence at any time after the Effective Date
of any of the following events: (i) the acquisition of ownership by
a person, corporation or other entity, or a group acting in concert,
of fifty-one percent, or more, of the outstanding Common Stock of
AACC in a single transaction or a series of related transactions
within a one-year period; (ii) a sale of all or substantially all of
the assets of AACC to any person, corporation or other entity; or
(iii) a merger or similar transaction between AACC and another
entity if shareholders of AACC do not own a majority of the voting
stock of the surviving entity or any parent thereof and a majority
in value of the total
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outstanding stock of such surviving entity or any parent thereof.
Provided, however, that there shall not be included within the
meaning of "Change in Control," any such event involving: (A) any
employee benefit plan (or related trust) sponsored or maintained by
AACC; or (B) any of the current shareholders of AACC as of the
Effective Date (or any entity at any time controlled by any such
shareholder or shareholders).
Except as set forth in this subsection (e), the terms of the Plan shall govern
the Restricted Shares.
(f) During the Employment Period, the Executive shall be entitled to
receive such other benefits and conditions of employment, including,
without limitation, four weeks paid vacation (plus five personal days),
participation in such group health, life and disability plans covering the
Executive (and in the case of group health plans, his spouse and dependent
children), and the other benefits set forth on Exhibit A (such benefits
collectively, the "Welfare Benefits"), as are afforded from time to time
hereafter to the other senior executives of PARC as provided in the PARC
employee handbook, as may be amended from time to time, or as superseded
by AACC's or the Company's employee handbook. The Executive acknowledges
and agrees that neither the Company nor PARC guarantees 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.
(g) The Executive's domestic travel time and attendance at events
for the Young Presidents Organization shall not be counted toward vacation
days or Business Travel Days, provided that, any international travel time
and attendance by the Executive at such events shall be counted toward
vacation days, unless otherwise agreed to by the Board of Directors. For
purposes of this Section 3, domestic travel shall include travel by the
Executive within or between the United States, and its territories and
possessions.
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 PARC, shall perform his services primarily at PARC's office
located at 000 Xxx Xxxxx Xxxx, Xxxxx 000, Xxxxxxxxx Xxxxx, Xxxxxxx, and at all
times use his best efforts to carry out such responsibilities faithfully and
efficiently and to advance the business of PARC and 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 (a) serve on
civic or charitable boards or committees, or (b) manage personal investments
(including "Executive Collection Activities" (as defined herein)), so long as
such activities do not (i) compete with or are not provided to or for any entity
that competes with or intends to compete with PARC, the Company or any of their
subsidiaries and affiliates, or (ii) interfere in any material respect with the
performance of the Executive's responsibilities as an employee of PARC in
accordance with this Agreement.
5. REIMBURSEMENT FOR EXPENSES. Upon the presentation of itemized vouchers
and
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receipts to the reasonable satisfaction of PARC, PARC 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 PARC's expense reimbursement policy as the same may be
modified by PARC from time to time without prejudice to any rights of the
Executive which may have accrued prior to such notification.
6. TERMINATION.
(a) PARC 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. As used in this
Agreement, the term "Cause" shall mean any of the following events:
(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 PARC in accordance with Section
4;
(iii) the Executive's willful failure to follow the lawful
directives of the Board of Directors 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 duties hereunder,
which is reasonably likely to result, in the Board of Director's
good faith judgment, in material injury to the reputation of the
Company, PARC or any of their respective subsidiaries, including,
without limitation, the misappropriation of funds or determinations
of discrimination or harassment, except as to any claims with regard
to Xxxxx Xxxxx.
(v) the Executive's breach of the provisions of Section 7 or
any other noncompetition, noninterference, nondisclosure,
confidentiality or other similar agreement executed by the Executive
with the Company, PARC or any of their respective subsidiaries; or
(vi) the commission by the Executive 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), upon the delivery of written notice to the Executive setting forth the
act, omission or event constituting Cause, the Executive shall have thirty (30)
days in which to cure such act, omission or event after the delivery of such
written notice. If the Executive's employment is terminated under the provisions
of this clause (a), all rights of the Executive to compensation and benefits
pursuant to Section 3 shall cease as of the effective date of such termination,
except for amounts due to the Executive hereunder as of such effective date, or
amounts or benefits to which the Executive may be entitled to under the terms of
any employee benefit plan of the Company or PARC.
(b) In the event that the Executive resigns, other than upon
Retirement or for
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Substantial Breach, (as those terms are hereinafter defined), this
Agreement and the employment relationship established hereby shall
terminate immediately upon the receipt by the Company and PARC of written
notice of the Executive's resignation. After the effective date of
termination under this Section 6(b), neither the Company nor PARC shall 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 Section 10 or any employee benefit plan of the Company or PARC.
(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), PARC 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 or PARC, as in effect on
the effective date of such termination, (ii) the pro rata portion of the
Bonus, if any, due to the Executive in accordance with Section 3(d), and
(iii) the pro rata portion of the Restricted Shares, if any, due to the
Executive in accordance with Section 3(e)(iii).. 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 with or without
reasonable accommodation for a period of six (6) months as determined in
the good faith judgment of the Board of Directors.
(d) In the event that (i) PARC elects to terminate the employment of
the Executive prior to the expiration of the Employment Period (other than
pursuant to Sections 6(a), (b), and (c)), or (ii) the Executive resigns
from his employment hereunder following a Substantial Breach (such
Substantial Breach having not been corrected by PARC within fifteen (15)
days of a 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, PARC shall continue to pay the
Executive as provided in Section 10.
"Substantial Breach" shall mean any material breach by PARC 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 senior executive of a
division of AACC, (ii) a reduction in the Executive's Regular Base Salary
below $250,000, (iii) a change in the primary location at which the
Executive is required to perform his duties for PARC and its subsidiaries
which is outside a fifteen (15) mile radius of Deerfield Beach, Florida,
or (iv) the failure by PARC to (A) allow the Executive to participate in
PARC's employee benefit plans generally available from time
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to time to senior executives of PARC, or (B) provide employee benefits at
levels equivalent to (1) PARC's employee benefits as of the date
immediately preceding the date of this Agreement, or (2) those employee
benefits which are generally available from time to time to the senior
executives of AACC, whichever is less generous to the Executive, or (iv)
its obligations under Section 2(b) and Section 3(b) - (f) provided that,
the term "Substantial Breach" shall not include (A) an immaterial breach
by PARC or the Company of any provisions of this Agreement, or (B) a
termination for Cause under Section 6(a).
The date of termination of employment by the Company or PARC 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
fifteen (15) days after receipt by PARC and 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 15-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 or
PARC 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 PARC 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, 8, and 10 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 and PARC's business and assets, and (ii) by virtue of his past and
continued association with PARC, 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
directors, officers or managers of PARC or any employees, former employees,
consultants or others in a confidential relationship with the Company, PARC or
their respective affiliates or 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 or PARC and to the Company's or PARC's substantial detriment.
(a) COVENANT NOT TO COMPETE.
(i) The Executive agrees that, for the period beginning on the
Effective Date and ending on the later of (A) the fifth anniversary
of the Effective Date, and (B) the third anniversary of the
effective date of the termination of the Executive's employment with
PARC (regardless of the reason for the Executive's termination) (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 (as defined herein), own,
manage, operate, control, be
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employed by, participate in, loan money to or permit his name to be
used by, any business which is engaged in the business of purchasing
and collecting consumer accounts receivable of any type that have
been charged off by the original creditor ("Charged Off Accounts")
and financing sales of consumer product retailers (a "Competitive
Activity") or any other business whose products or activities
compete in whole or in part with the Company or PARC; provided,
however, that collection activities relating to nominal debt
purchases made by the Executive or his spouse more than five (5)
years prior to the Effective Date (collectively, the "Executive
Collection Activities"), shall not constitute control, management,
operation of, or participation in a Competitive Activity if the
Executive Collection Activities do not interfere in any material
respect with the performance of the Executive's responsibilities as
an employee of PARC. In the event that PARC is collecting on
accounts acquired by the Executive and/or his spouse more than five
(5) years prior to the Effective Date, the Executive and his spouse
shall pay PARC a commercially reasonable contingent fee on those
collections
(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 or owner (other than by
ownership of less than five (5) percent of the stock of a
corporation that has a class of equity securities registered under
the Securities Exchange Act of 1934). Territory means North America,
South America, Europe and Asia.
(iii) The Executive and the Company acknowledge and agree that
the restrictions contained in this Section 7(a) are reasonable for
the purpose of preserving the Company and PARC and their respective
goodwill, proprietary rights and going concern value.
(iv) The Executive, PARC and the Company acknowledge and agree
that as added consideration, to be paid in connection with this
Agreement and the non-compete covenants set forth in Sections
7(a)(i) - (iii), PARC shall pay the Executive One Million Dollars
($1,000,000) in immediately available funds on Effective Date.
Executive agrees that as a condition precedent to filing any lawsuit
challenging or seeking declaratory relief as to any covenant set
forth in Section 7, he will return this One Million dollar
($1,000,000) payment to PARC. It is agreed that failure to return
the payment prior to initiation of suit is a fatal defect meriting
immediate dismissal of the lawsuit challenging or seeking
declaratory relief as to a covenant contained in this Section 7. The
respective rights of PARC and the Company to enforce the provisions
of this Section 7 shall not be waived, restricted or modified in any
way as a result of any return of such payment.
(b) NONDISCLOSURE OF CONFIDENTIAL INFORMATION.
(i) The Executive shall not, whether during or after the Employment
Period, disclose to any person or other entity or use, for his own
purposes or for
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the benefit of any person or other entity (except PARC or the Company),
any information relating to PARC or its customers or the Company, not in
the public domain, in any form, acquired by the Executive while he was
employed or associated with the Company or PARC 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 owing a duty of confidentiality to the Company or PARC (the
"Confidential Information"). Confidential Information includes, but is not
limited to, trade secrets, Charged Off Accounts supplier lists, collection
methods, information regarding bulk purchases of Charged Off Accounts, all
credit and financial data concerning 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 PARC.
(ii) Notwithstanding the foregoing, the restrictions in subsection
(b)(i) of this Section 7 are not applicable to the disclosure or use of
Confidential Information in connection with the following: (A) in the
course of faithfully performing the Executive's duties as an employee of
PARC; (B) with the Company's or PARC'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. 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
five (5) business days after learning of such subpoena, court order or
other governmental process) shall notify the Company and PARC 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 or
PARC, as applicable, and the Executive shall, upon request, return to the
Company the originals and all copies of any such Confidential Information
provided to or acquired by the Executive in connection with his
association with PARC 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, directly or indirectly through any other individual, legal entity, business
enterprise, governmental body or unit, including any corporation, partnership,
limited partnership or limited liability company ("Person"): (i) solicit, induce
or attempt to induce any employee of the Company, PARC or any of their
respective subsidiaries, to leave the employ of the Company, PARC or any of
their respective subsidiaries, or in any way
11
interfere with the relationship between the Company, PARC or any of their
respective subsidiaries, and its subsidiaries and any employee or independent
contractor thereof; (ii) hire or retain or attempt to hire or retain any Person
who was an employee or independent contractor of the Company, PARC or any of
their respective subsidiaries while the Executive was employed by PARC; (iii)
cause, induce or attempt to cause or induce any supplier of Charged Off
Accounts, licensee, licensor, franchisee, employee, consultant or other business
relation of the Company, PARC or any of their respective subsidiaries to cease
doing business with the Company, PARC or any of their respective subsidiaries,
to deal with any competitor of the Company, PARC or any of their respective
subsidiaries, or in any way interfere with its relationship with the Company,
PARC or any of their respective subsidiaries; or (iv) acquire Charged Off
Accounts from any Person that was a seller of Charged Off Accounts to the
Company, PARC or any of their respective subsidiaries, other than in connection
with the Executive Collection Activities.
8. REMEDIES.
(a) The Executive hereby acknowledges that the Executive's covenants
and obligations hereunder are of special, unique, unusual, extraordinary
and intellectual character, which gives them a peculiar value, the actual
or threatened breach of which shall result in substantial injuries and
damages, for which monetary relief may fail to provide an adequate remedy
at law. Accordingly, the Executive agrees that the Company and PARC shall
be entitled, in the event of an actual or threatened breach of this
Agreement, to seek remedies including but not necessarily limited to (i)
temporary or permanent injunctive relief restraining the Executive from
engaging in activities prohibited by Section 7 or such other relief as may
be required to specifically enforce any of the covenants in Section 7,
(ii) specific performance, and (iii) monetary relief, to the extent that
monetary relief may constitute an adequate remedy in whole or in part;
provided that, the Executive does not waive the right to oppose relief on
the grounds that no breach or threatened breach has occurred. The
Executive hereby agrees and consents that such injunctive relief may be
sought in any state or federal court, in the state in which such violation
may occur, or in any other court having jurisdiction, at the election of
the Company or PARC.
(b) If any proceeding for injunctive relief and/or specific
performance is brought by the Company or PARC to enforce the terms of this
Agreement, the Executive shall be deemed to have waived, and shall not
assert, any claim or defense that the Company or PARC has an adequate
remedy at law or that such a remedy at law exists.
(c) If any action at law or in equity is brought to enforce or
interpret the terms of this Agreement, the party that prevails in such
action, shall be entitled to reasonable attorneys' fees, costs and
necessary disbursements in addition to any other relief which a court of
competent jurisdiction may order.
9. DEDUCTIONS FROM COMPENSATION. The Executive agrees that PARC shall be
entitled to deduct and withhold from any compensation payable to the Executive
hereunder any taxes in respect of the Executive that PARC is required to deduct
and withhold under federal, state or local law whether arising from compensation
hereunder or otherwise. In the event that
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the Executive is no longer employed by PARC at a time when PARC otherwise would
be entitled to deduct and withhold any amount pursuant to the preceding
sentence, the Executive shall remit such amount to PARC within five (5) days
after the receipt of notice from PARC specifying such amount or otherwise in
accordance with the Executive's obligations with respect thereto.
10. TERMINATION BENEFITS. If the Executive's employment with PARC is
terminated pursuant to Section 6(d), the Executive shall be entitled to receive,
as his sole and exclusive remedy, the termination benefits provided under this
Section 10.
(a) COMPENSATION-REGULAR BASE SALARY AND BONUSES. In lieu of notice,
if any, required under applicable law which may be in force from time to
time, upon the Section 6(d) Termination Date occurring prior to the end of
the Employment Period (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 for the remainder of
the Employment Period, and (ii) the Executive shall be paid the pro rata
portion of the Annual Profit Sharing Bonus, if any, only for the fiscal
year in which the Section 6(d) Termination Date occurs, due to the
Executive in accordance with Section 3(c) as if his employment had
continued. The Employment Period shall end upon the third anniversary of
the Effective Date, unless otherwise terminated, after which time the
Executive shall be deemed to be an at-will employee and shall be entitled
to severance pursuant to PARC's policy then in effect or as required by
applicable law. The Executive shall not be entitled to any further notice,
severance pay, pay in lieu of notice or any compensation whatsoever,
except any amounts owed to the Executive under this Agreement. 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 and PARC has drawn his
attention to the provisions contained herein prior to executing this
Agreement.
(b) WELFARE BENEFITS, ETC. If the Executive timely makes the
appropriate COBRA election, PARC or the Company shall pay the costs
necessary to continue the Executive's participation pursuant to COBRA for
a period of eighteen (18) months following the Section 6(d) Termination
Date (including dependent family coverage for those family members who are
"qualified beneficiaries" as defined by ERISA) in any group health and
dental benefit plans provided by PARC, in effect immediately prior to the
Section 6(d) Termination Date. Following the Section 6(d) Termination
Date, PARC shall not be obligated to (i) provide business accident
insurance covering the Executive, or (ii) make contributions in respect of
the Executive to any qualified retirement and pension plans or profit
sharing plans.
(c) TIMING RESTRICTIONS. Notwithstanding the foregoing or any
provisions of this Agreement to the contrary, in the event that the
Executive is determined by the Board of Directors in its good faith
judgment to be a "specified employee" within the meaning of Internal
Revenue Code Section 409A, none of the termination benefits contemplated
by this Section 10 shall be paid or provided to the Executive prior to the
first day of the seventh month after the Executive's termination of
employment, at which
13
time such benefits shall commence; provided that all benefits accumulated
from the date of the Executive's termination of employment to which
Executive is entitled under this Agreement and which were not paid or
provided sooner because of this provision, also will immediately become
payable at that time. Subject to PARC's obligations to timely pay the
amounts due to the Executive as set forth in the preceding sentence, with
respect to the amounts payable to the Executive pursuant to Section 10(a),
any Regular Base Salary amounts shall be paid no later than the end of the
calendar year to which such salary amounts relate (determined by dividing
the Executive's annual Regular Base Salary by twelve and allocating such
salary to each month following the Executive's termination of employment),
and any Annual Profit Sharing Bonus or other bonus amount shall be paid no
later than 2-1/2 months after the end of the calendar year to which such
Bonus amount relates.
(d) NO MITIGATION. The Executive shall not be required to mitigate
the amount of any compensation payable to him pursuant to Section 10,
whether by seeking other employment or otherwise. If, during the period
which the Executive is receiving compensation pursuant to Section 10, the
Executive obtains new full-time employment, the Company and PARC shall
remain obligated to continue to compensate the Executive pursuant to this
Section 10, except PARC's and the Company's obligations to make COBRA
payments pursuant to subsection (b) above shall terminate if the
Executive's new employer provides health benefits to the Executive and his
dependents.
11. EXTENSION OF RESTRICTED PERIODS. In addition to the remedies the
Company or PARC may seek and obtain pursuant to Section 8, the Restricted
Period, 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.
12. SUCCESSORS; BINDING AGREEMENT. This Agreement is personal to the
Executive and, without the prior written consent of the Company and PARC, 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, PARC and their respective 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; provided that, any such waiver, alteration or
modification is consented to on the Company's and PARC's behalf by their
respective Boards of Directors. No waiver by any 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 are reasonable and valid in geographical and temporal
scope and in all other respects. If any of such covenants or other provisions of
this Agreement are found to be invalid or unenforceable by a final determination
of a court of competent jurisdiction (a) the remaining terms and provisions
hereof shall be unimpaired, and (b) the invalid or unenforceable term or
14
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
STATE OF FLORIDA IN PALM BEACH COUNTY OR IN THE UNITED STATES DISTRICT
COURT FOR THE SOUTHERN DISTRICT OF FLORIDA, AND, BY EXECUTION AND DELIVERY
OF THIS AGREEMENT, EACH OF THE PARTIES HEREBY ACCEPTS FOR HIMSELF, OR
ITSELF AND IN RESPECT OF HIS 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 OR ITS ADDRESS AS PROVIDED IN SECTION 18. 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 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 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
15
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 PENCILING. In the event that, notwithstanding the first sentence
of Section 14, 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 (a) delivered personally or by
documented courier or delivery service, (b) transmitted by facsimile, or (c)
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 or PARC:
Asset Acceptance Holdings LLC
00000 Xxx Xxxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxxxx X. Xxxxxxx XX
Facsimile No.: 000-000-0000
In the case of the Executive:
Xxxxxxxxxxx X. Xxxxxx
0000 XX 00xx Xxxxxx
Xxxx Xxxxx, Xxxxxxx 00000
Facsimile No.: 000-000-0000
With a copy to (which shall not be considered notice):
Xxxxx X. Xxxxx, Esq.
Gunster, Yoakley & Xxxxxxx P.A.
Xxxxxxxx Point
777 South Flagler Drive, Suite 000 Xxxx
Xxxx Xxxx Xxxxx, XX 00000
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
16
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 SECTION HEADINGS. Captions and section headings in this
Agreement are for convenience only, are not a part hereof and shall not be used
in construing this Agreement. Unless otherwise specified in this Agreement, all
references to sections in this Agreement shall mean sections of 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.
21. COUNTERPARTS. This Agreement may be executed in counterparts
(including by facsimile or electronic transmittal copy), 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 and PARC have advised him that the foregoing alters and supersedes his
common law rights. The Executive acknowledges that the Company and PARC have
advised him to seek legal advice prior to executing this Agreement and that he
has obtained such advice.
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.
24. TAX MATTERS. Notwithstanding any other provision of this Agreement,
the parties to this Agreement 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).
* * * * * * * * * * * * * * * * *
17
The parties hereto have executed this Employment Agreement as of the
day and year first above written.
ASSET ACCEPTANCE HOLDINGS LLC
By: /s/ Xxxxxxxxx X. Xxxxxxx XX
--------------------------------------
Xxxxxxxxx X. Xxxxxxx XX, Manager
PREMIUM ASSET RECOVERY CORP.
By: ______________________________________
Name: ________________________________
Title: ______________________________
EXECUTIVE
/s/ Xxxxxxxxxxx X. Xxxxxx
-------------------------------------
Xxxxxxxxxxx X. Xxxxxx
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EXHIBIT A
ADDITIONAL EXECUTIVE WELFARE BENEFITS
Dues and meeting fees in connection to the Executive's participation in the
Healthcare Financial Management Association, Debt Buyers Association and such
other professional development organizations as may be approved from time to
time by PARC's Board of Directors.
19
