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Exhibit 10.1
AMENDMENT NO. 1
TO
EMPLOYMENT AGREEMENT
This AMENDMENT NO. 1 TO EMPLOYMENT AGREEMENT ("Amendment
No. 1"), dated as of December 19, 2008, is made between ASSET
ACCEPTANCE LLC, a Delaware limited liability company (the
"Company"), a wholly owned subsidiary of Asset Acceptance Capital
Corp., a Delaware corporation ("AACC") and DEBORAH L. EVERLY (the
"Executive").
Recitals
1. Prior to the date hereof, the parties hereto entered into
that certain Employment Agreement, entered into as of
October 1, 2007 (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. TERMINATION . The last paragraph in Section 6(a)
is hereby amended and restated to read as follows:
After the effective date of termination for Cause under this
Section 6(a), the Company shall not be obligated to make any
further payments to the Executive under this Agreement, except for
amounts due the Executive hereunder as of such effective date
(which shall be paid by the end of the next payroll period
following the date of termination), or amounts or benefits to which
the Executive may be entitled under the terms of any employee
benefit plan of the Company.
B. TERMINATION . The last sentence in Section 6(b)
is hereby amended and restated to read as follows:
After the effective date of termination under this
Section 6(b), the Company shall not be obligated to make any
further payments under this Agreement, except for amounts due the
Executive hereunder as of such effective date (which shall be paid
by the end of the next payroll period following the date of
termination), or for
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amounts or benefits to which the Executive may be
entitled under the terms of any employee benefit plan of the
Company.
C. TERMINATION . Clause (i) in Section 6(c) is
hereby amended and restated to read as follows:
(i) all amounts due the Executive hereunder as of such effective
date (which shall be paid by the end of the next payroll period
following the date of termination), plus any amounts or benefits to
which the Executive may be entitled under the terms of any employee
benefit plans of the Company, as in effect on the effective date of
such termination, which shall be paid in accordance with the terms
of such plans, and
D. TERMINATION. The second and third paragraphs of
Section 6(d) are hereby amended and restated to read as
follows:
"Substantial Breach" shall mean any material breach by the
Company of its obligations under this Agreement, including without
limitation: (i) the assignment of the Executive to a position
or duties materially diminished from those normally assigned to a
Chief Acquisitions Officer of a business enterprise comparable to
the Company and AACC; (ii) a material reduction in the
Executive’s Regular Base Salary; (iii) a change in the
location where the Executive is required to perform her duties for
the Company, AACC and their subsidiaries and affiliates, which is
outside a 50 mile radius of Detroit, Michigan; provided that the
term "Substantial Breach" shall not include (x) an immaterial
breach by the Company of any provisions of this Agreement or
(y) a termination for Cause under Section 6(a).
The Executive must notify the Company in writing of the
Executive’s intention to invoke termination for "Substantial
Breach" within 90 days after the initial existence of such event
and provide the Company with 30 days for cure, or such event shall
not constitute a "Substantial Breach" under this Agreement.
Additionally, the Executive must terminate employment within one
year following the existence of one or more of the events listed
above for the termination to be considered a "Substantial Breach."
The date of resignation under this Section 6(d) shall be 31
days after the Company’s receipt of written notice of the
Executive’s resignation, provided that the Substantial Breach
specified in such notice shall not have been corrected by the
Company during the preceding 30-day period. The effective date of
the Executive’s resignation under this Section 6(d)
shall be referred to as the "Section 6(d) Termination Date."
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E. CONFIDENTIALITY AND NON COMPETITION .
Section 7(a)(i) is hereby amended by replacing the semi-colon
after (a "Competitive Activity") with a period, and deleting the
remainder of the paragraph.
F. CONFIDENTIALITY AND NON COMPETITION .
Section 7(c) is hereby amended by replacing the semi-colon
after "during the Restricted Period" in clause (iv) with a
period, and deleting the remainder of the paragraph.
G. TERMINATION BENEFITS . Paragraphs (a) and
(b) in Section 9 are hereby amended and restated in their
entirety and paragraph (c) is added to Section 9 to read
as follows:
(a)(1) The Executive shall be paid her Regular Base Salary
periodically, according to the Company’s payroll policy at
the rate in effect on the Section 6(d) Termination Date for a
period of one year following the Section 6(d) Termination
Date; provided that, if the Executive is a "specified employee"
within the meaning of Code Section 409A on the
Section 6(d) Termination Date, the sum of such amount that is
paid within the first six months following the Section 6(d)
Termination Date shall not exceed two times the lesser of:
(A) the
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