EXHIBIT 10.29
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 XXXXXXX X. XXXXXXX (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.
(1) A new sentence is added to the end of Section 3(b), to read as
follows:
Notwithstanding the foregoing or any provisions of the Summary Terms
for the Incentive Plan as set forth in Schedule 2 to the contrary,
all Bonus amounts payable pursuant to this Section 3(b) 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.
(2) 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 her lifetime, with respect to any medical or
hospitalization expenses incurred by her (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 her lifetime, all coverages available
to her 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 her 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. Termination Benefits. Section 9 of the Employment Agreement is hereby
amended by the addition of a new Section 9(c) to read as follows:
(c) Notwithstanding the foregoing or any provisions of this
Agreement to the contrary, in the event that the Executive is
determined to be a "specified employee" within the meaning of
Internal Revenue Code Section 409A, none of the termination benefits
contemplated by this Section 9 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 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 hereunder and which were not paid or provided sooner
because of this provision, also will immediately become payable at
that time. Subject to the foregoing, with respect to the amounts
payable to the Executive pursuant to Section 9(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 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.
C. 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).
D. 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
----------------------------------
Xxxxxxxxx X. Xxxxxxx XX,
President and Chief Executive Officer
/s/ XXXXXXX X. XXXXXXX
-------------------------------------
XXXXXXX X. XXXXXXX
