EXHIBIT 10.3
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FORM OF
AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
AMONG
ASSET ACCEPTANCE CAPITAL CORP.,
AAC QUAD-C INVESTORS, LLC
AAC INVESTORS, INC.
ASSET ACCEPTANCE HOLDINGS, LLC
RBR HOLDING CORP.
AND
CERTAIN OTHER HOLDERS OF SHARES OF ASSET ACCEPTANCE CAPITAL CORP.
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Dated as of January __, 2004
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TABLE OF CONTENTS
Page
1. DEFINITIONS...........................................................2
2. REGISTRATION UNDER SECURITIES ACT.....................................3
(a) REGISTRATION ON REQUEST......................................3
(i) REQUEST.................................................3
(ii) EFFECTIVE REGISTRATION STATEMENT....................4
(iii) REGISTRATION STATEMENT FORM.........................4
(iv) EXPENSES............................................4
(v) SELECTION OF UNDERWRITERS...........................4
(vi) PRIORITY IN REQUESTED REGISTRATIONS.................4
(b) INCIDENTAL REGISTRATION......................................5
(i) RIGHT TO INCLUDE REGISTRABLE SECURITIES.................5
(ii) EXPENSES............................................5
(iii) PRIORITY IN INCIDENTAL REGISTRATIONS................5
(c) REGISTRATION PROCEDURES......................................6
(d) UNDERWRITTEN OFFERINGS.......................................9
(i) REQUESTED UNDERWRITTEN OFFERINGS........................9
(ii) INCIDENTAL UNDERWRITTEN OFFERINGS...................9
(iii) HOLDBACK AGREEMENTS................................10
(e) INDEMNIFICATION.............................................10
(i) INDEMNIFICATION BY THE COMPANY.........................10
(ii) INDEMNIFICATION BY THE SELLERS.....................12
(iii) NOTICES OF CLAIMS, ETC.............................12
(iv) OTHER INDEMNIFICATION..............................13
(v) INDEMNIFICATION PAYMENTS...........................13
(vi) CONTRIBUTION.......................................13
(vii) CONTROLING PROVISIONS..............................14
(f) PARTICIPATION IN UNDERWRITTEN REGISTRATIONS.................14
(g) TRANSFER OR ASSIGNMENT OF REGISTRATION RIGHTS...............14
(h) TERMINATION OF REGISTRATION RIGHTS..........................14
3. RULE 144; RULE 144A..................................................14
4. OTHER REGISTRATION RIGHTS............................................15
5. AMENDMENTS AND WAIVERS...............................................15
6. NOTICES..............................................................15
7. BINDING AGREEMENT....................................................17
8. NOMINEES FOR BENEFICIAL OWNERS.......................................17
9. DESCRIPTIVE HEADINGS.................................................17
10. SPECIFIC PERFORMANCE.................................................17
11. COUNTERPARTS.........................................................17
12. SEVERABILITY.........................................................18
13. ENTIRE AGREEMENT.....................................................18
14. SUBMISSION TO JURISDICTION; VENUE....................................18
15. WAIVER OF JURY TRIAL.................................................19
16. GOVERNING LAWS.......................................................19
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FORM OF
AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
This AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT (the
"Agreement") is made as of January __, 2004, among ASSET ACCEPTANCE CAPITAL
CORP., a Delaware corporation (the "Company"), ASSET ACCEPTANCE HOLDINGS, LLC, a
Delaware limited liability company ("Asset Acceptance Holdings"), AAC QUAD-C
INVESTORS, LLC a Virginia limited liability company ("Investors"), AAC
INVESTORS, INC., a Virginia corporation ("AAC Investors"), RBR HOLDING CORP., a
Nevada corporation ("RBR Holding"), XXXXX X. XXXXXXX, XX., XXXXXXX X. XXXXXXX,
XXXXXXXXX X. XXXXXXX XX, and XXXX X. XXXXXX (the "Executives") and the TRUSTS
listed on the signature pages hereto. The parties hereof, other than the
Company, Asset Acceptance Holdings, AAC Investors, and RBR Holding are
collectively referred to as the "Shareholders" and individually as a
"Shareholder."
WHEREAS, Asset Acceptance Holdings, AAC Investors, RBR Holding
(formerly known as AAC Holding Corp.), Consumer Credit Corp., a Michigan
corporation that was merged into RBR Holding, the Executives and the TRUSTS
listed on the signature pages hereto, entered into that certain Registration
Rights Agreement, dated September 30, 2002 (the "Registration Rights
Agreement");
WHEREAS, the Company was formed in August 2003 for the
purposes of consummating an initial public offering of the Company's common
stock;
WHEREAS, in connection with the initial public offering of the
Company, all the shares of capital stock of RBR Holding and AAC Investors, which
hold sixty percent (60%) and forty percent (40%), respectively, of the equity
membership interests in Asset Acceptance Holdings, will be contributed to the
Company in exchange for shares of common stock of the Company (the
"Reorganization");
WHEREAS, as a result of this Reorganization, Asset Acceptance
Holdings and its subsidiaries will become indirect wholly-owned subsidiaries of
the Company; and
WHEREAS, as of the date hereof, all of the shares of AAC
Investors are held by Investors; and
WHEREAS, to reflect the changed relationship between the
parties, they wish to replace the Registration Rights Agreement with this
Amended and Restated Registration Rights Agreement.
In consideration of the parties entering into the agreements
and carrying out the transactions herein described, and for other good and
valuable consideration, the parties agree to amend and restate the Registration
Rights Agreements in its entirety as follows, with this Agreement to 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 Exchange Commission by the Company (the "Initial
Public Offering"):
1. DEFINITIONS. As used herein, unless the context otherwise
requires, the following terms have the following respective meanings:
"Commission" means the Securities and Exchange Commission or
any other United States agency at the time administering the Securities Act.
"Common Shares" means the common stock, $.01 par value, of
Asset Acceptance Capital Corp.
"Exchange Act" means the Securities Exchange Act of 1934, or
any similar United States statute, and the rules and regulations of the
Commission thereunder, all as the same shall be in effect at the time.
"Executive Holders" means the Executives, the TRUSTS listed on
the signature pages hereto, and any Person who is the transferee of the
Executives or such TRUSTS of Registerable Securities other than in a Public
Sale.
"Long-Form Registration" means registration under the
Securities Act (hereinafter defined) on Form S-1 or similar long form adopted by
the Commission for registration of securities under the Securities Act.
"Person" means an individual, a partnership, a joint venture,
a corporation, a limited liability company, a trust, an unincorporated
organization and a government or any department or agency thereof.
"Public Offering" means any primary or secondary public
offering of Common Shares pursuant to an effective registration statement under
the Securities Act other than a registration statement on a form registering the
types of transactions generally eligible for registration on Form S-4 or S-8 or
any successor or similar form.
"Public Sale" means any Public Offering or any sale of Common
Shares to the public pursuant to Rule 144 (or any successor provision) effected
through a broker or dealer.
"Quad-C Holders" means Investors and any Person who is the
transferee of Investors of Registrable Securities other than in a Public Sale.
"Registrable Securities" means (i) any outstanding Common
Shares issued to any Shareholder and (ii) any securities issued or issuable with
respect to any such Common Shares by way of stock dividend or stock split or in
connection with a combination of shares, recapitalization, merger, consolidation
or other reorganization or otherwise. As to any particular Registrable
Securities, once issued such securities shall cease to be Registrable Securities
when (i) they shall have been distributed in a Public Sale, (ii) they shall have
been otherwise transferred and subsequent disposition of them shall not require
registration or qualification of them under the Securities Act or any similar
state law then in force or (iii) they shall have ceased to be outstanding.
"Registration Expenses" means all expenses incident to the
Company's performance of or compliance with Section 2, including, without
limitation, (i) all registration,
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filing and NASD fees, (ii) all fees and expenses of complying with securities or
blue sky laws, (iii) all word processing, duplicating and printing expenses,
(iv) messenger and delivery expenses, (v) the fees and disbursements of counsel
for the Company and of its independent public accountants, including the
expenses of any special audits or "cold comfort" letters required by or incident
to such performance and compliance, (vi) the reasonable fees and expenses of one
counsel, who may be counsel for the Company, chosen by the holders of a majority
of the Registrable Securities included in such Public Offering, (vii) premiums
and other costs of policies of insurance against liabilities arising out of the
public offering of the Registrable Securities being registered (if the Company
elects to obtain any such insurance), and (viii) any fees and disbursements of
underwriters customarily paid by issuers or sellers of securities, but excluding
underwriting discounts and commissions and transfer taxes, if any.
"Requesting Holder" means, in respect of any registration
pursuant to Section 2 hereof, any holder of Registrable Securities who gives
notice to the Company of its request to include Registrable Securities in such
registration.
"Rule 144" means Rule 144 promulgated by the Commission under
the Securities Act as such rule may be amended from time to time, or any similar
rule then in force.
"Securities Act" means the Securities Act of 1933, or any
similar United States statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time.
2. REGISTRATION UNDER SECURITIES ACT. (a) REGISTRATION ON
REQUEST. (i) REQUEST. If at any time the Quad-C Holders who hold in excess of
five (5%) percent of the outstanding Common Shares, or if at any time the
Executive Holders who hold in excess of five (5%) percent of the outstanding
Common Shares, request in writing that the Company effect the registration under
the Securities Act of a specified number of the Registrable Securities held by
them and specifying the intended method of disposition thereof, the Company will
promptly give written notice of such requested registration to all registered
holders of Registrable Securities, and thereupon the Company, in accordance with
the provisions of Section 2(c) hereof, will use its reasonable efforts to effect
the registration under the Securities Act of:
(A) the Registrable Securities which the Company has
been so requested to register for disposition in accordance
with the intended method or methods of disposition stated in
such request, and
(B) all other Registrable Securities which the
Company has been requested to register by the holders thereof
by written request given to the Company within 20 days after
the giving of such written notice by the Company,
all to the extent requisite to permit the disposition (in accordance with the
intended methods thereof as aforesaid) of Registrable Securities so to be
registered; provided that the Company shall not be required (i) to effect a
registration under this Section 2(a) unless the anticipated gross proceeds of
the offering of all Registrable Securities to be included therein is at least
$5,000,000, (ii) to effect more than two Long-Form Registrations each at the
request of the Quad-C Holders or at the request of the Executive Holders, as the
case may be, or (iii) to effect a registration
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under this Section 2(a) prior to the date that is twelve months after the
effective date of the Company's most recent registration statement; provided
that the Initial Public Offering shall not be counted as a request for
registration pursuant to this Section 2(a)(i) by any Shareholder.
(ii) EFFECTIVE REGISTRATION STATEMENT. A registration
requested pursuant to this Section 2(a) shall not be deemed to be effected (A)
if a registration statement with respect thereto shall not have become
effective, (B) if, after it has become effective, such registration is
interfered with for any reason by any stop order, injunction or other order or
requirement of the Commission or any other governmental agency or any court, and
the result of such interference is to prevent the holders of Registrable
Securities to be sold thereunder from disposing thereof in accordance with the
intended methods of disposition, or (C) if the conditions to closing specified
in the purchase agreement or underwriting agreement entered into in connection
with any underwritten registration shall not be satisfied or waived with the
consent of the holders of Registrable Securities that were to have been sold
thereunder, other than as a result of any breach by any holder of its
obligations thereunder or hereunder.
(iii) REGISTRATION STATEMENT FORM. Registrations under this
Section 2(a) shall be on such appropriate registration form of the Commission as
shall be selected by the Company and as shall permit the disposition of the
Registrable Securities so to be registered in accordance with the intended
method or methods of disposition specified in the request of the holders of
Registrable Securities being registered for such registration. The Company
agrees to include in any such registration statement all information which the
holders of Registrable Securities being registered shall reasonably request in
writing. All Long-Form Registrations shall be underwritten registrations and
shall not be "shelf-registrations."
(iv) EXPENSES. The Company will pay all Registration Expenses
in connection with any registration requested pursuant to this Section 2(a). To
the extent expenses of the registration are not required to be paid by the
Company, each holder of securities included in the registration will pay those
expenses allocable to the registration of such holder's securities, and any
expenses not so allocable will be borne by all sellers of securities included in
the registration in proportion to the aggregate selling price of the securities
to be so registered.
(v) SELECTION OF UNDERWRITERS. If a requested registration
pursuant to this Section 2(a) involves an underwritten offering, the managing
underwriter or underwriters shall be selected by the Company's Board of
Directors.
(vi) PRIORITY IN REQUESTED REGISTRATIONS. If a requested
registration pursuant to this Section 2(a) involves an underwritten offering,
and the managing underwriter shall advise the Company in writing (with a copy to
each Person requesting registration of Registrable Securities) that, in its
opinion, the number of securities requested to be included in such registration
exceeds the number which can be sold in such offering within a price range
acceptable to the Company and holders of Registrable Securities who initiated
the registration, the Company will include in such registration to the extent of
the number which the Company is so advised can be sold in such offering (A)
first, Registrable Securities requested to be included in such registration by
the Quad-C Holders and the Executive Holders, pro rata among such holders in
proportion to the number of Registrable Securities held by them, and (B) second,
Registrable Securities requested to be included in such registration by all
other holders thereof;
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pro rata among such holders on the basis of the number of Registrable Securities
requested to be so registered.
(b) INCIDENTAL REGISTRATION. (i) RIGHT TO INCLUDE REGISTRABLE
SECURITIES. If the Company at any time proposes to register any of its
securities under the Securities Act (other than the Company's Initial Public
Offering and other than by a registration on Form S-4 or S-8 or any successor or
similar forms or filed in connection with an exchange offer, or any offering of
securities solely to the Company's existing security holders, and other than
pursuant to Section 2(a)), whether or not for sale for its own account, the
Company will at each such time give prompt confidential written notice to all
holders of Registrable Securities of its intention to do so and of such holders'
rights under this Section 2(b). Upon the written request of any holder of
Registrable Securities made within 20 days after the receipt of any such notice
(which request shall specify the Registrable Securities intended to be disposed
of by such holder and the intended method of disposition thereof), the Company
will, subject to the provisions of paragraph (iii) of this Section 2(b), use its
reasonable efforts to effect the registration under the Securities Act of all
Registrable Securities which the Company has been so requested to register by
the holders thereof, to the extent requisite to permit the disposition (in
accordance with the intended methods thereof as aforesaid) of the Registrable
Securities so to be registered; provided, that if, at any time after giving
written notice of its intention to register any securities and prior to the
effective date of the registration statement filed in connection with such
registration, the Company shall determine for any reason not to register or to
delay registration of such securities, the Company may, at its election, give
written notice of such determination to each Requesting Holder and, thereupon,
(A) in the case of a determination not to register, shall be relieved of its
obligation to register any Registrable Securities in connection with such
registration and (B) in the case of a determination to delay registering, shall
be permitted to delay registering any Registrable Securities, for the same
period as the delay in registering such other securities.
(ii) EXPENSES. The Company will pay all Registration Expenses
in connection with each registration of Registrable Securities requested
pursuant to this Section 2(b) including, without limitation, any such
registration not effected by the Company. To the extent expenses of the
registration are not required to be paid by the Company, each holder of
securities included in the registration will pay those expenses allocable to the
registration of such holder's securities, and any expenses not so allocable will
be borne by all sellers of securities included in the registration in proportion
to the aggregate selling price of the securities to be so registered.
(iii) PRIORITY IN INCIDENTAL REGISTRATIONS. If a registration
pursuant to this Section 2(b) involves an underwritten offering, and the
managing underwriter shall advise the Company in writing, that, in its opinion,
the number of securities requested and otherwise proposed to be included in such
registration exceeds the number which can be sold in such offering within a
price range acceptable to the Company, or that the kind of securities requested
or otherwise proposed to be included in such registration statement would
materially and adversely affect the success of such offering, the Company will
include in such registration, to the extent of the number which the Company is
so advised can be sold in such offering, (A) if the registration is a primary
registration on behalf of the Company, (1) first, the securities proposed to be
registered by the Company, (2) second, Registrable Securities requested to be
included in such registration by the Quad-C Holders and the Executive Holders,
pro rata among such holders in proportion to the number of Registrable
Securities held by them, and (3) third, securities of
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other Persons, if any, requested to be included in such registration pro rata in
accordance with the numbers of other securities proposed to be registered by the
other Persons or otherwise allocated among such other Persons in such proportion
as such holders and the Company shall agree, and (B) if the registration is a
secondary registration on behalf of other Persons, the Registrable Securities
and securities of other Persons included in such registration pro rata in
accordance with the numbers of Registrable Securities requested to be included
by the Requesting Holders and the numbers of other securities proposed to be
registered by the other Persons; provided in each such case that if the
registration involves an underwritten offering and the managing underwriter(s)
shall advise the Company in writing (with a copy to each Shareholder requesting
registration of Registrable Securities) that, in its opinion, the number of
securities requested to be included in such registration by Executive Holders or
other holders of Registrable Shares exceeds the number which can be sold in such
offering within a price range acceptable to the Company, or that the kind of
securities requested or otherwise proposed to be included in such registration
by Executive Holders or other holders of Registrable Securities would materially
and adversely affect the success of such offering, the number of securities
permitted to be included in such registration by each Executive Holder or other
holder Registrable Shares under clause (A)(2) or (A)(3) above, as applicable,
shall be ratably reduced by the amount of such excess. In the event a
contemplated distribution does not involve an underwritten public offering, the
determinations contemplated by this Section 2(b) shall be made by the Board of
Directors.
(c) REGISTRATION PROCEDURES. If and whenever the Company is
required to use its reasonable efforts to effect the registration of any
Registrable Securities under the Securities Act as provided in Sections 2(a) and
(b) the Company will as expeditiously as possible:
(i) prepare and file with the Commission the requisite
registration statement to effect such registration and thereafter use its
reasonable efforts to cause such registration statement to become effective;
provided that before filing such registration statement or any amendments
thereto, the Company will furnish to the Requesting Holders copies of all such
documents proposed to be filed; provided further that the Company may postpone
the filing or effectiveness of a registration if the Company reasonably believes
that such registration might reasonably be expected to have an adverse effect on
any proposal or plan to engage in any acquisition of assets or capital stock or
any merger, consolidation, tender offer or similar transaction; or would
otherwise require disclosure of information which the Board of Directors of the
Company determines should not be disclosed;
(ii) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in connection
therewith as may be necessary to keep such registration statement continuously
effective for a period of either (A) not more than 180 days or, if such
registration statement relates to an underwritten offering, such longer period
as in the opinion of counsel for the underwriters a prospectus is required by
law to be delivered in connection with sales of Registrable Securities by an
underwriter or dealer or (B) such shorter period as will terminate when all of
the securities covered by such
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registration statement have been disposed of in accordance with the intended
methods of disposition by the seller or sellers thereof set forth in such
registration statement (but in any event not before the expiration of any longer
period required under the Securities Act), and to comply with the provisions of
the Securities Act with respect to the disposition of all securities covered by
such registration statement until such time as all of such securities have been
disposed of in accordance with the intended methods of disposition by the seller
or sellers thereof set forth in such registration statement; provided that the
Company may terminate the effectiveness of a registration if the Company
reasonably believes that such registration might reasonably be expected to have
an adverse effect on any proposal or plan to engage in any acquisition of assets
or capital stock or any merger, consolidation, tender offer or similar
transaction or would otherwise require disclosure of information which the Board
of Directors of the Company determines should not be disclosed, in which event,
such registration will not count as a registration pursuant to Section 2(a) with
respect to Requesting Holders who have not sold thereunder at least 75% of the
Registrable Securities included in such registration;
(iii) furnish to each Requesting Holder such number of
conformed copies of such registration statement and of each such amendment and
supplement thereto (in each case including all exhibits, but only one copy
thereof to each such Requesting Holder), such number of copies of the prospectus
contained in such registration statement (including each preliminary prospectus
and any summary prospectus) and any other prospectus filed under Rule 424 under
the Securities Act, in conformity with the requirements of the Securities Act,
and such other documents in order to facilitate the disposition of the
Registrable Securities owned by such Requesting Holder, as such Requesting
Holder may reasonably request;
(iv) use its reasonable efforts to register or qualify such
Registrable Securities and other securities covered by such registration
statement under such other securities or blue sky laws of such jurisdictions as
each seller thereof shall reasonably request, to keep such registration or
qualification in effect for so long as such registration statement remains in
effect, and to take any other action which may be reasonably necessary or
advisable to enable such seller to consummate the disposition in such
jurisdictions of the securities owned by such seller; provided that the Company
shall not for any such purpose be required to (A) qualify generally to do
business as a foreign corporation in any jurisdiction where it would not
otherwise be required to qualify but for the requirements of this clause (iv),
(B) consent to general service of process in any such jurisdiction or (C)
subject itself to taxation in such jurisdiction;
(v) use its reasonable efforts to cause all Registrable
Securities covered by such registration statement to be registered with or
approved by such other governmental agencies or authorities as may be necessary
by virtue of the business and operations of the Company to enable the seller or
sellers thereof to consummate the disposition of such Registrable Securities;
(vi) promptly notify each seller of Registrable Securities, at
any time when a prospectus relating thereto is required to be delivered under
the Securities Act, upon discovery that, or upon the discovery of the happening
of any event as a result of which the prospectus included in such registration
statement, as then in effect, includes an untrue statement of a material fact or
omits to state any material fact required to be stated therein or necessary to
make the statements therein not misleading in light of the circumstances under
which they were made, and at the request of any such seller promptly prepare and
furnish to such seller a reasonable number of copies of a supplement to or an
amendment of such prospectus as may be necessary so that, as thereafter
delivered to the purchasers of such securities, such prospectus shall not
include an untrue statement of a material fact or omit to state a material fact
required to be stated
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therein or necessary to make the statements therein not misleading in light of
the circumstances under which they were made;
(vii) otherwise use its reasonable efforts to comply with all
applicable rules and regulations of the Commission, and make available to its
security holders, as soon as reasonably practicable, an earnings statement
covering a period of at least twelve months, but not more than eighteen months,
beginning with the first full calendar month after the effective date of such
registration statement, which earnings statement shall satisfy the provisions of
Section 11(a) of the Securities Act;
(viii) provide and cause to be maintained a transfer agent and
registrar for all Registrable Securities covered by such registration statement
from and after a date not later than the effective date of such registration
statement;
(ix) use its reasonable efforts (A) to cause all such
Registrable Securities covered by such registration statement to be listed on
any national securities exchange (if such Registrable Securities are not already
so listed), and on each other securities exchange, on which similar securities
issued by the Company are then listed, if the listing of such Registrable
Securities is then permitted under the rules of such exchange or (B) to secure
the designation of all such Registrable Securities covered by such registration
statement as a "national market security" in the Nasdaq Stock Market within the
meaning of Rule 11Aa2-1 of the Commission or, failing that, to secure Nasdaq
Stock Market authorization for such Registrable Securities, in each case if the
Registrable Securities so qualify, and, without limiting the generality of the
foregoing, to arrange for at least two market makers to register as such with
respect to such Registrable Securities with the National Association of
Securities Dealers, in the case of each action referred to in this clause (B) if
requested by a majority of holders covered by such registration statement or by
the managing underwriter;
(x) obtain one or more comfort letters, dated the effective
date of such registration statement (and, if such registration includes an
underwritten public offering, dated the date of the closing under the
underwriting), signed by the Company's independent public accountants in
customary form and covering such matters as are customarily covered by comfort
letters as the holders of a majority of the Registrable Securities being sold
reasonably request (provided that such Registrable Securities constitute at
least ten percent (10%) of the securities covered by such registration
statement); and
(xi) as required by the Securities Act or by the underwriters,
if any, obtain a legal opinion of the Company's counsel, dated the effective
date of such registration statement (or, if such registration includes an
underwritten public offering, dated the date of the closing under the
underwriting agreement) customary in transactions of this type.
The Company may require each seller of Registrable Securities
as to which any registration is being effected to furnish the Company such
information regarding such seller and the distribution of such securities as the
Company may from time to time reasonably request in writing and to furnish a
legal opinion of each seller's counsel customary in transactions of this type.
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Each holder of Registrable Securities agrees that upon receipt
of any notice from the Company of the happening of any event of the kind
described in clause (vi) of this Section 2(c), such holder will forthwith
discontinue such holder's disposition of Registrable Securities pursuant to the
registration statement relating to such Registrable Securities until such
holder's receipt of the copies of the supplemented or amended prospectus
contemplated by clause (vi) of this Section 2(c) and, if so directed by the
Company, such holder will use its reasonable efforts to deliver to the Company
all copies, other than permanent file copies then in such holder's possession,
of the prospectus relating to such Registrable Securities current at the time of
receipt of such notice.
(d) UNDERWRITTEN OFFERINGS. (i) REQUESTED UNDERWRITTEN
OFFERINGS. If requested by the underwriters for any underwritten offering of
Registrable Securities pursuant to a registration requested under Section 2(a),
the Company will enter into an underwriting agreement with such underwriters for
such offering. Such agreement shall be reasonably satisfactory in substance and
form to the holders of a majority of the Registrable Securities requesting such
registration and the underwriters and shall contain such representations and
warranties by the Company and by the selling shareholders and such other terms
as are generally prevailing in agreements of this type, including, without
limitation, indemnities to the effect and to the extent provided in Section
2(e). The holders of Registrable Securities to be distributed by such
underwriters shall be parties to such underwriting agreement and may, at their
option, require that any or all of the representations and warranties by, and
the other agreements on the part of, the Company to and for the benefit of such
underwriters shall also be made to and for the benefit of such holders and that
any or all of the conditions precedent to the obligations of such underwriters
under such underwriting agreement be conditions precedent to the obligations of
such holders of Registrable Securities. In addition, the Company may, at its
option, require that any or all of the representations and warranties by, and
the other agreements on the part of holders of Registrable Securities to and for
the benefit of such underwriters shall also be made and for the benefit of the
Company.
(ii) INCIDENTAL UNDERWRITTEN OFFERINGS. If the Company at any
time proposes to register any of its securities under the Securities Act as
contemplated by Section 2(b) and such securities are to be distributed by or
through one or more underwriters, (i) the managing underwriter or underwriters
shall be selected by the Company, and (ii) the Company will, if requested by any
holder of Registrable Securities as provided in Section 2(b), and subject to the
provisions of Section 2(b)(ii), use its reasonable efforts to arrange for such
underwriters to include all the Registrable Securities to be offered and sold by
such holder among the securities to be distributed by such underwriters. The
holders of Registrable Securities to be distributed by such underwriters shall
be parties to the underwriting agreement between the Company and such
underwriters and may, at their option, require that any or all of the
representations and warranties by, and the other agreements on the part of, the
Company to and for the benefit of such underwriters shall also be made to and
for the benefit of such holders and that any or all of the conditions precedent
to the obligations of such underwriters under such underwriting agreement be
conditions precedent to the obligations of such holders of Registrable
Securities. In addition, the Company may, at its option, require that any or all
of the representations and warranties by, and the other agreements on the part
of holders of Registrable Securities to and for the benefit of such underwriters
shall also be made and for the benefit of the Company.
9
(iii) HOLDBACK AGREEMENTS.
(A) Each holder of Registrable Securities agrees for the
benefit of the Company not to effect any sale or distribution of any equity
securities of the Company, or any securities convertible into or exchangeable or
exercisable for such securities, including a sale pursuant to Rule 144 under the
Securities Act (or any similar provision then in force), during the ten days
before and the 180 days after any underwritten registration pursuant to Section
2(a) or 2(b) has become effective, except as part of such underwritten
registration.
(B) The Company agrees (X) without the consent of the managing
underwriter not to effect any public sale or distribution of its equity
securities or securities convertible into or exchangeable or exercisable for any
of such securities during the ten days before and the 180 days after any
underwritten registration pursuant to Section 2(a) or (b) has become effective,
except as part of such underwritten registration and except pursuant to
registrations on Form S-4 or S-8, or any successor or similar forms thereto or
pursuant to an unregistered offering to employees of the Company or its
Subsidiaries pursuant to an employee benefit plan as defined in Rule 405 of
Regulation C under the Securities Act, and (Y) to use its reasonable efforts to
cause each holder of its equity securities or any securities convertible into or
exchangeable or exercisable for any of such securities, whether outstanding on
the date of this Agreement or issued at any time after the date of this
Agreement (other than any such securities acquired in a public offering
including any distribution to the public pursuant to Rule 144), to agree not to
effect any such public sale or distribution of such securities during such
period, except as part of any such registration if permitted; provided that the
provisions of this clause (B) shall not prevent the conversion or exchange of
any securities pursuant to their terms into or for other securities.
(e) INDEMNIFICATION.
(i) INDEMNIFICATION BY THE COMPANY. In the event of any
registration of any securities of the Company under the Securities Act pursuant
to this Section 2, the Company will, and hereby does, indemnify and hold
harmless, the seller of any Registrable Securities covered by such registration
statement, its directors, officers, agents and employees, each other Person who
participates as an underwriter in the offering or sale of such securities and
each other Person, if any, who controls such seller or any such underwriter
within the meaning of the Securities Act, against any losses, claims, damages,
liabilities or expenses, joint or several, to which such seller or any such
director, officer, agent, employee, underwriter or controlling person may become
subject under the Securities Act or otherwise, insofar as such losses, claims,
damages, liabilities or expenses (or actions or proceedings, whether commenced
or threatened, in respect thereof) arise out of or are based upon (A) any untrue
statement or alleged untrue statement of any material fact contained (x) in any
registration statement under which such securities were registered under the
Securities Act, any preliminary prospectus, final prospectus or summary
prospectus contained therein or used in connection with the offering of
securities covered thereby, or any amendment or supplement thereto or any
document included by reference therein, or (y) in any application or other
document or communication (in this Section 2(f) collectively called an
"application") executed by or on behalf of the Company or based upon written
information furnished by or on behalf of the Company filed in any jurisdiction
in order to qualify any securities covered by such registration statement under
the
10
"blue sky" or securities laws thereof, or (B) any omission or alleged omission
to state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, and, in connection with any of the
foregoing in this clause (i), the Company will reimburse such seller and each
such director, officer, agent, employee, underwriter and controlling person for
any legal or any other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, liability, action or
proceeding; provided that the Company shall not be liable in any such case to
the extent that any such loss, claim, damage, liability (or action or proceeding
in respect thereof) or expense arises out of or is based upon an untrue
statement or alleged untrue statement, or omission or alleged omission, made in
such registration statement, any such preliminary prospectus, final prospectus,
summary prospectus, amendment or supplement, or in any application, in reliance
upon and in conformity with written information prepared and furnished to the
Company by such seller specifically for use in the preparation thereof which
information contained any untrue statement of any material fact or omitted to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading; and provided further, that the Company
shall not be liable to any Person who participates as an underwriter in any such
registration or any other Person who controls such underwriter within the
meaning of the Securities Act, in any such case to the extent that any such
loss, claim, damage, liability (or action or proceeding in respect thereof) or
expense arises out of such Person's failure to send or give a copy of the final
prospectus, as the same may be then supplemented or amended (provided it has
been made available to such Person in accordance with the terms hereof), to the
Person asserting an untrue statement or alleged untrue statement or omission or
alleged omission at or prior to the written confirmation of the sale of the
securities to such Person if such statement or omission was corrected in such
final prospectus. Such indemnity shall remain in full force and effect
regardless of any investigation made by or on behalf of such seller or any such
director, officer, agent, employee, underwriter or controlling Person and shall
survive the transfer of such securities by such seller. The Company shall not be
obligated to pay the fees and expenses of more than one counsel or firm of
counsel for all parties indemnified in respect of a claim for each jurisdiction
in which such counsel is required unless in the reasonable judgment of such
counsel a conflict of interest may exist between such indemnified party and any
other indemnified party in respect of such claim. It is agreed that the
indemnity agreement contained in this clause (i) shall not apply to amounts paid
in settlement of any loss, claim, damage, liability or expense if such
settlement is effected without the consent of the Company (which consent shall
not be unreasonably withheld).
(ii) INDEMNIFICATION BY THE SELLERS. The Company may require,
as a condition to including any Registrable Securities in any registration
statement filed pursuant to this Section 2, that the Company shall have received
an undertaking satisfactory to it from the prospective seller of such
securities, to indemnify and hold harmless (in the same manner and to the same
extent as set forth in clause (i) of this Section 2(e)) the Company, each
director of the Company, each officer of the Company and each other Person, if
any, who controls the Company within the meaning of the Securities Act, with
respect to any statement or alleged statement in or omission or alleged omission
from such registration statement, any preliminary prospectus, final prospectus
or summary prospectus contained therein, or any amendment or supplement thereto,
or any application, if such statement or alleged statement or omission or
alleged omission was made in reliance upon and in conformity with written
information prepared and furnished to the
11
Company by such seller specifically for use in the preparation of such
registration statement, preliminary prospectus, final prospectus, summary
prospectus, amendment or supplement, or such application, which information
contained any untrue statement of any material fact or omitted to state therein
a material fact required to be stated therein or necessary to make the
statements therein not misleading. Such indemnity shall remain in full force and
effect, regardless of any investigation made by or on behalf of the Company or
any such director, officer or controlling Person and shall survive the transfer
of such securities by such seller. The indemnity provided by each seller of
securities under this Section 2(e)(ii) shall be provided severally, and not
jointly or jointly and severally with any other seller or prospective seller of
securities, and shall be limited in amount to the lesser of (A) such seller's
allocable portion (based upon the number of Registrable Securities included in
the registration statement) of the liability for indemnification and (B) the net
amount of proceeds received by such seller from the sale of Registrable
Securities pursuant to such registration statement. It is agreed that the
indemnity agreement contained in this clause (ii) shall not apply to amounts
paid in settlement of any loss, claim, damage, liability or expense if such
settlement is effected without the consent of such seller of such securities
(which consent shall not be unreasonably withheld).
(iii) NOTICES OF CLAIMS, ETC. Promptly after receipt by an
indemnified party of notice of the commencement of any action or proceeding
involving a claim referred to in the preceding subdivisions of this Section
2(e), such indemnified party will, if a claim in respect thereof is to be made
against an indemnifying party, give written notice to the latter of the
commencement of such action; provided that the failure of any indemnified party
to give notice as provided herein shall not relieve the indemnifying party of
its obligations under the preceding subdivisions of this Section 2(e), except to
the extent that the indemnifying party is actually prejudiced by such failure to
give notice. In case any such action is brought against an indemnified party,
unless in such indemnified party's reasonable judgment a conflict of interest
between such indemnified and indemnifying parties may exist in respect of such
claim, the indemnifying party shall be entitled to participate in and to assume
the defense thereof, jointly with any other indemnifying party similarly
notified to the extent that it may wish, with counsel reasonably satisfactory to
such indemnified party. No indemnifying party shall, without the consent of the
indemnified party, consent to entry of any judgment or enter into any settlement
which does not include as an unconditional term thereof the giving by the
claimant or plaintiff to such indemnified party of a release from all liability
in respect to such claim or litigation. Each indemnified party shall furnish
such information regarding itself or the claim in question as the indemnifying
party may request and as shall be reasonably required in connection with the
defense of such claim and litigation resulting therefrom.
(iv) OTHER INDEMNIFICATION. Indemnification similar to that
specified in the preceding subdivisions of this Section 2(e) (with appropriate
and reasonable modifications) shall be given by the Company and each seller of
Registrable Securities with respect to any required registration or other
qualification of securities under any federal, state or provincial law or
regulation of any governmental authority, other than the Securities Act.
(v) INDEMNIFICATION PAYMENTS. The indemnification required by
this Section 2(e) shall be made by periodic payments of the amount thereof
during the course of the investigation or defense, as and when bills are
received or expense, loss, damage or liability is
12
incurred, subject to refund if the party receiving such payments is subsequently
found not to have been entitled thereto hereunder.
(vi) CONTRIBUTION. In order to provide for just and equitable
contribution in circumstances under which the indemnity contemplated by this
Section 2(e) is for any reason not available, the parties required to indemnify
by the terms hereof shall contribute to the aggregate losses, liabilities,
claims, damages and expenses of the nature contemplated by such indemnity
agreement incurred by the Company, any seller of Registrable Securities and one
or more of the underwriters, except to the extent that contribution is not
permitted under Section 11(f) of the Securities Act. In determining the amounts
which the respective parties shall contribute, there shall be considered the
relative benefits received by each party from the offering of the Registrable
Securities (taking into account the portion of the proceeds of the offering
realized by each), the parties' relative knowledge and access to information
concerning the matter with respect to which the claim was asserted, the
opportunity to correct and prevent any statement or omission and any other
equitable considerations appropriate under the circumstances. The Company and
each Person selling securities agree with each other that no seller of
Registrable Securities shall be required to contribute any amount in excess of
the amount such seller would have been required to pay to an indemnified party
if the indemnities under clauses (i) and (ii) above of this Section 2(e) were
available. The Company and each such seller agree with each other and the
underwriters of the Registrable Securities, if requested by such underwriters,
that it would not be equitable if the amount of such contribution were
determined by pro rata or per capita allocation (even if the underwriters were
treated as one entity for such purpose) or for the underwriters' portion of such
contribution to exceed the percentage that the underwriting discount bears to
the initial public offering price of the Registrable Securities. For purposes of
this clause (vi), each Person, if any, who controls an underwriter within the
meaning of Section 15 of the Securities Act shall have the same rights to
contribution as such underwriter, and each director and each officer of the
Company who signed the registration statement, and each Person, if any, who
controls the Company or a seller of Registrable Securities within the meaning of
Section 15 of the Securities Act shall have the same rights to contribution as
the Company or a seller of Registrable Securities, as the case may be.
(vii) CONTROLLING PROVISIONS. Notwithstanding the foregoing, to the
extent that the provisions on indemnification and contribution contained in any
underwriting agreement entered into in connection with any underwritten Public
Offering are in conflict with the foregoing provisions, the provisions in any
such underwriting agreement shall control.
(f) PARTICIPATION IN UNDERWRITTEN REGISTRATIONS. No Person may
participate in any underwritten registration hereunder unless such Person agrees
to sell such Person's securities on the basis provided in any underwriting
arrangements reasonably approved by the Company.
(g) TRANSFER OR ASSIGNMENT OF REGISTRATION RIGHTS. The rights to cause
the Company to register securities granted to a Shareholder by the Company
hereunder may be transferred or assigned by a Shareholder only to a transferee
or assignee of not less than five percent (5%) of the then outstanding Common
Shares; provided that the Company is given written notice at the time or within
a reasonable time after such transfer or assignment, stating
13
the name and address of the transferee or assignee and identifying the
securities with respect to which such registration rights are being transferred
or assigned; provided further that the transferee or assignee of such rights
assumes in writing the obligations of such Shareholder under this Agreement.
(h) TERMINATION OF REGISTRATION RIGHTS. The right of any
Shareholder to request registration or inclusion in any registration pursuant to
this Section 2 shall terminate three (3) years after the closing of the
Company's Initial Public Offering, provided that the foregoing shall not apply
to any Shareholder who owns more than one percent (1%) of the then outstanding
Common Shares until the earlier of (i) such time as the Shareholder owns less
than one percent (1%) of the then outstanding Common Shares, or (ii) the
expiration of seven (7) years after the closing of the Company's Initial Public
Offering.
3. RULE 144; RULE 144A.
(a) If the Company shall have filed a registration statement
which has become effective pursuant to Section 12 of the Exchange Act or a
registration statement which has become effective pursuant to the Securities
Act, the Company will use its reasonable best efforts to file the reports
required to be filed by it under the Exchange Act and the rules and regulations
adopted by the Commission thereunder (or, if the Company is not required to file
such reports, will, upon the request of the Quad-C Holders or any other holder
of more than five percent of the Registrable Securities make publicly available
other information) and will take such further action as the Quad-C Holders or
such other holders may reasonably request, all to the extent required from time
to time to enable such holder to sell Registrable Securities without
registration under the Securities Act within the limitation of the exemptions
provided by (i) Rule 144 under the Securities Act, as such Rule may be amended
from time to time, or (ii) any similar rule or regulation hereafter adopted by
the Commission.
(b) Except at such times as the Company is a reporting company
under Section 13 or 15(d) of the Exchange Act, the Company shall, upon the
written request of any holder of Registrable Securities, provide to any such
holder and to any prospective institutional transferee of Registrable Securities
designated by such holder, such financial and other information as is available
to the Company or can be obtained by the Company without material expense and as
such holder may reasonably determine is required to permit a transfer of such
Registrable Securities to comply with the requirements of Rule 144A promulgated
under the Securities Act.
4. OTHER REGISTRATION RIGHTS. Notwithstanding anything to the
contrary in this Agreement the Company shall be permitted to grant to any Person
the right to request the Company to register any equity securities of the
Company, or any securities convertible or exchangeable into or exercisable for
such securities, without the consent of holders of any Registrable Securities
and nothing in this Agreement shall restrict the Company's ability to give any
other persons registration rights which are senior to the registration rights
granted hereunder.
5. AMENDMENTS AND WAIVERS. This Agreement may be amended and
the Company may take any action herein prohibited, or omit to perform any act
herein required to be performed by it, only if the Company shall have obtained
the written consent to such
14
amendment, action or omission to act of the holders of at least a majority of
all Registrable Securities at the time outstanding; provided that any amendment
to this Agreement that materially adversely affects the rights of any Holder of
Registrable Securities differently than such amendment affects the rights of
other Holders of Registrable securities shall also require the approval of the
affected Holder; and provided further that, without limiting the generality of
the foregoing, the written consent of any of Asset Acceptance Holdings, AAC
Investors, and RBR Holding shall not be required with respect to any amendment
to, modification of or waiver related to this Agreement.
6. 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 nationally recognized overnight 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:
If to the Company, to:
Asset Acceptance Capital Corp.
0000 Xxxxxx Xxxx
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxxxx X. Xxxxxxx XX
Facsimile No.: 000-000-0000
with a copy to:
c/o 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
15
and to:
Xxxxxx Xxxxxxx PLLC
000 Xxxxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: J. Xxxxxxx Xxxxxxx, Esq.
Facsimile No.: 000-000-0000
If to the Executive Holders, to:
Xxxxx X. Xxxxxxx, Xx.
00 Xxxxxx Xxxx
Xxxxxxxx, Xxxxxxx 00000
Facsimile No.: 000-000-0000
and to:
Xxxxxxxxx X. Xxxxxxx XX
0000 Xxxxxx Xxxx
Xxxxxx, Xxxxxxxx 00000
Facsimile No.: 000-000-0000
If to the Quad-C Holders, to:
AAC Quad-C Investors, Inc.
c/o Quad-C Management, Inc.
000 Xxxx Xxxx Xxxxxx
Xxxxxxxxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx
Facsimile No.: 434-979-1145
with a copy to:
McGuireWoods LLP
Xxx Xxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx
Facsimile No.: 000-000-0000
Notice pursuant hereto shall be deemed given (i) if delivered
personally, when so delivered, (ii) if given by nationally recognized overnight
delivery, one business day after delivery to the delivery service for next
business day delivery, (iii) 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
16
to which it is transmitted and (iv) if given by mail, on the third business day
following the day on which it was posted.
7. BINDING AGREEMENT. This Agreement shall be binding upon and
inure to the benefit of and be enforceable by the parties hereto and their
respective successors and assigns. In addition, and whether or not any express
assignment shall have been made, the provisions of this Agreement which are for
the benefit of the holders of Registrable Securities as such shall be for the
benefit of and enforceable by any subsequent holder of any Registrable
Securities who acquires such shares in compliance with the applicable provisions
of the Shareholders Agreement, subject to the provisions respecting the minimum
numbers or percentages of shares of Registrable Securities required in order to
be entitled to certain rights, or take certain actions, contained herein.
8. NOMINEES FOR BENEFICIAL OWNERS. In the event that
Registrable Securities are held by a nominee for the beneficial owner thereof,
the beneficial owner thereof may, at its option and by written notice to the
Company, be treated as the holder of such Registrable Securities for purposes of
any request or other action by any holder or holders of Registrable Securities
pursuant to this Agreement (or any determination of any percentage of
Registrable Securities held by any holder or holders of Registrable Securities
contemplated by this Agreement).
9. DESCRIPTIVE HEADINGS. The descriptive headings of the
several sections and paragraphs of this Agreement are inserted for reference
only and shall not limit or otherwise affect the meaning hereof.
10. SPECIFIC PERFORMANCE. The parties hereto recognize and
agree that money damages may be insufficient to compensate the holders of any
Registrable Securities for breaches by the Company of the terms hereof and,
consequently, that the equitable remedy of specific performance of the terms
hereof will be available in the event of any such breach.
11. COUNTERPARTS. This Agreement may be executed
simultaneously in any number of counterparts, each of which shall be deemed an
original, but all such counterparts shall together constitute one and the same
instrument.
12. SEVERABILITY. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstances, is
held invalid, illegal or unenforceable in any respect for any reason, the
validity, legality and enforceability of any such provision in every other
respect and of the remaining provisions contained herein shall not be in any way
impaired thereby, it being intended that all of the rights and privileges of the
holders of Registrable Securities shall be enforceable to the fullest extent
permitted by law.
13. ENTIRE AGREEMENT. This Agreement is intended by the
parties hereto as a final expression of their agreement and intended to be a
complete and exclusive statement of their agreement and understanding in respect
to the subject matter contained herein. This Agreement supersedes all prior
agreements and understandings between the parties with respect to such subject
matter.
17
14. 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 party hereto 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 party 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 Shareholder at his, her or its address
as provided in Section 6 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 14
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.
15. 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.
16. 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.
18
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered as of the date first above written.
ASSET ACCEPTANCE CAPITAL CORP.
By:
-------------------------------------------------
Xxxxxxxxx X. Xxxxxxx XX,
President and Chief Executive Officer
ASSET ACCEPTANCE HOLDINGS, LLC
By:
-------------------------------------------------
Xxxxxxxxx X. Xxxxxxx XX, President
AAC QUAD-C INVESTORS LLC
By:
-------------------------------------------------
Name:
-----------------------------------------------
Title:
----------------------------------------------
AAC INVESTORS, INC.
By:
-------------------------------------------------
Name:
-----------------------------------------------
Title:
----------------------------------------------
RBR HOLDING CORP.
By:
-------------------------------------------------
Xxxxxxxxx X. Xxxxxxx XX, President
19
-----------------------------------------------------
XXXXX X. XXXXXXX, XX.
-----------------------------------------------------
XXXXXXX X. XXXXXXX
-----------------------------------------------------
XXXXXXXXX X. XXXXXXX XX
-----------------------------------------------------
XXXX X. XXXXXX
XXXXXXXXX X. XXXXXXX XX REVOCABLE
LIVING TRUST, AS AMENDED
By:
-------------------------------------------------
Xxxxxxxxx X. Xxxxxxx XX, Trustee
XXXXX X. XXXXXXX, XX., REVOCABLE
LIVING TRUST, AS AMENDED
By:
-------------------------------------------------
Xxxxx X. Xxxxxxx, Xx., Trustee
XXXXXXX XXXXXXX REVOCABLE LIVING TRUST, AS AMENDED
By:
-------------------------------------------------
Xxxxxxx Xxxxxxx, Trustee
20
THE XXXX X. XXXXXXX TRUST -- 1999
By:
-------------------------------------------------
Xxxxx X. Xxxxxxx, Xx., Co-Trustee
By:
-------------------------------------------------
Xxxxxxx Xxxxxxx, Co-Trustee
THE XXXXX X. XXXXXXX TRUST -- 1999
By:
-------------------------------------------------
Xxxxx X. Xxxxxxx, Xx., Co-Trustee
By:
-------------------------------------------------
Xxxxxxx Xxxxxxx, Co-Trustee
THE XXXXX XXXXXXX XXXXX TRUST -- 1999
By:
-------------------------------------------------
Xxxxx X. Xxxxxxx, Xx., Co-Trustee
By:
-------------------------------------------------
Xxxxxxx Xxxxxxx, Co-Trustee
THE XXXXXX XXXXX XXXXXXX TRUST -- 1999
By:
-------------------------------------------------
Xxxxx X. Xxxxxxx, Xx., Co-Trustee
By:
-------------------------------------------------
Xxxxxxx Xxxxxxx, Co-Trustee
21
