EXHIBIT 10.28
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 MARK A. REDMAN (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. 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.
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/ NATHANIEL F. BRADLEY IV
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Nathaniel F. Bradley IV,
President and Chief Executive Officer
/s/ MARK A. REDMAN
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MARK A. REDMAN