EXHIBIT 2.2
EXECUTION
SHARE EXCHANGE AGREEMENT
This Share Exchange Agreement (the "Agreement"), dated as of October 24,
2003, is entered into by and among AAC Investors, Inc., a Virginia corporation
("AAC Investors"), AAC Quad-C Investors LLC, a Virginia limited liability
company (the "AAC Investors Shareholder"), RBR Holding Corp., a Nevada
corporation (the "RBR Holding"), the undersigned shareholders of RBR Holding
(the "RBR Shareholders"), and Asset Acceptance Capital Corp., a Delaware
corporation ("Asset Acceptance"). The AAC Investors, the AAC Investors
Shareholder, RBR Holding, the RBR Shareholders, and Asset Acceptance are
referred to from time to time in this Agreement individually as a "Party" and
together as the "Parties."
AGREEMENT
A. AAC Investors owns 60% of the membership interests of Asset Acceptance
Holdings LLC, a Delaware limited liability company ("Holdings LLC").
RBR Holding owns 40% of the membership interests of Holdings LLC.
B. The AAC Investors Shareholder owns all of the issued and outstanding
shares of the capital stock of AAC Investors as listed on Exhibit A
(the "AAC Investors Shares"). The RBR Shareholders collectively own all
of the issued and outstanding shares of the capital stock of RBR
Holding and individually own the shares listed opposite their names on
Exhibit B (the "RBR Holding Shares").
C. AAC Investors and RBR Holding have determined to reorganize the
ownership of Holdings LLC in order to facilitate an initial public
offering.
D. To effect the reorganization, the AAC Investors Shareholder and the RBR
Shareholders have agreed to contribute all of their shares of the
capital stock of AAC Investors and RBR Holding, respectively, to Asset
Acceptance in exchange for shares of the common stock of Asset
Acceptance.
Now, therefore, the Parties have agreed as follows.
AGREEMENT
ARTICLE I
THE EXCHANGE
1.1 THE EXCHANGE.
(a) Subject to the terms and conditions set forth in this Agreement,
the AAC Investors Shareholder and each RBR Shareholder (individually, a
"Shareholder" and collectively the "Shareholders") agree to assign and transfer,
effective as of the Closing Date (as defined below), to Asset Acceptance all of
such Shareholder's AAC Investors Shares or RBR Holding Shares, as applicable
(with respect to each Shareholder, the "Shareholder's Shares"). In exchange for
the Shareholders' Shares, Asset Acceptance shall issue to each Shareholder the
number of shares of the common stock of Asset Acceptance determined in
accordance with the procedure set forth on Exhibit C (the "Shareholder's Asset
Acceptance Shares").
(b) The Board of Directors of Asset Acceptance shall be responsible for
making the final calculation of the number of Shareholder's Asset Acceptance
Share to be issued to each Shareholder pursuant to the terms of this Agreement.
(c) The transactions contemplated by this Agreement are referred to in
this Agreement as the "Exchange."
1.2 CLOSING.
(a) The obligations of the Parties to consummate the Exchange are
conditioned on the Securities and Exchange Commission (the "SEC") declaring
effective a registration statement on Form S-1 filed by Asset Acceptance after
the date of this Agreement regarding the initial public offering (the "IPO") of
shares of Asset Acceptance's common stock (the "Registration Statement"). No
Party shall have an obligation to consummate the Exchange unless the SEC
declares the Registration Statement effective.
(b) The closing of the Exchange (the "Closing") shall take place on the
date the SEC declares the Registration Statement effective. The date on which
the Closing occurs is referred to in this Agreement as the "Closing Date" and
the Closing shall be deemed to be effective immediately prior to the SEC
declaring the Registration Statement effective.
(c) On the Closing Date:
(i) each Shareholder shall deliver to Asset Acceptance the original
stock certificate(s) listed opposite such shareholder's name on Exhibit A or B,
as applicable, representing all such Shareholder's Shares (the "Certificates"),
with each Certificate accompanied by an Assignment Separate from Certificate in
the form attached as Exhibit D (the "Assignment") duly endorsed by the
Shareholder; and
(ii) Asset Acceptance shall deliver to each Shareholder an original
stock certificate representing the Shareholder's Asset Acceptance Shares.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE AAC INVESTORS SHAREHOLDER
The AAC Investors Shareholder represents and warrants to the other Parties
that the following are true and correct as of the date of this Agreement and
will be true and correct as of the Closing Date.
2.1 THE SHAREHOLDER'S SHARES.
(a) The Shareholder has good and marketable title to the Shareholder's
Shares and is the sole beneficial and record owner of such shares, free and
clear of any and all liens, claims, charges, encumbrances, forfeitures,
covenants, conditions, pledges, penalties, buy-sell agreements, rights of first
refusal, equities or claims or rights of others whatsoever ("Liens").
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(b) The Shareholder's Shares constitute all of the shares of the
capital stock of AAC Investors owned, directly or indirectly, by the
Shareholder. Other than the Shareholder's Shares, the Shareholder does not,
directly or indirectly own or control (i) any shares of the capital stock, or
any other security, of AAC Investors, (ii) any security convertible into, or
exchangeable for, or other rights to acquire, such shares or other security, or
(iii) have any phantom stock rights or other equity-based rights related to AAC
Investors.
(c) Except as set forth in this Agreement, the Shareholder is not
entitled under any circumstances to any dividends, distributions or any other
payment from AAC Investors after the Closing Date, except for the repayment of
notes outstanding plus accrued and unpaid interest to the Shareholder which will
occur upon the closing of the IPO.
2.2 EXISTENCE AND GOOD STANDING. The Shareholder is a limited liability
company duly organized, validly existing, and in good standing under the laws of
the Commonwealth of Virginia.
2.3 AUTHORITY; ENFORCEABILITY. The Shareholder has full power and
authority to enter into this Agreement and to carry out the transactions
contemplated by this Agreement. All company, manager, member or other
proceedings required to be taken by or on the Shareholder's behalf to authorize
the execution, delivery and performance of this Agreement have been duly and
properly taken. This Agreement has been duly and validly executed and delivered
by the Shareholder and constitutes a valid and binding agreement of the
Shareholder enforceable in accordance with its terms, subject to bankruptcy,
insolvency, reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally, by general equitable principles
(regardless of whether such enforceability is considered in a proceeding in
equity or at law).
2.4 NO CONFLICTS. The execution and delivery of this Agreement, the
consummation of the transactions contemplated by this Agreement and the
compliance with the terms of this Agreement do not and will not:
(a) conflict with or result in any breach of any provision of the
Shareholder's Articles of Organization or Operating Agreement or other similar
governing documents or the terms of any agreement or other instrument to which
the Shareholder is a party;
(b) conflict with, result in a breach of any provision of, constitute
(with or without due notice or lapse of time or both) a default under, result in
the modification or cancellation of, or give rise to any right of termination or
acceleration in respect of, any contract, agreement, commitment, understanding,
arrangement or restriction of any kind to which the Shareholder is a party;
(c) violate or conflict with any law, ordinance, code, rule,
regulation, decree, order or ruling of any court or governmental authority, to
which the Shareholder is subject; or
(d) require any authorization, consent, order, permit or approval of,
or notice to, or filing, registration or qualification with, any governmental,
administrative or judicial authority or any other person or entity.
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2.5 KNOWLEDGE AND EXPERIENCE; INVESTMENT INTENT.
(a) The Shareholder is an "accredited investor" (as such term is
defined under Regulation D promulgated under the Securities Act of 1933 (the
"Securities Act")).
(b) The Shareholder has such knowledge and experience in business and
financial matters as to be capable of evaluating the merits and risks of the
transactions contemplated by this Agreement. The Shareholder and its advisors
have been afforded the opportunity to ask questions of Asset Acceptance's
executive officers and have been given the opportunity to obtain any additional
information they requested in connection with the transactions contemplated by
this Agreement.
(c) The Shareholder represents that it is acquiring the Shareholder's
Asset Acceptance Shares for its own account, for investment only and not with a
view to, or any present intention of, effecting a distribution of such shares or
any part thereof except pursuant to a registration or an available exemption
under applicable law. The Shareholder acknowledges that the Shareholder's Asset
Acceptance Shares have not been registered under the Securities Act or the
securities laws of any state or other jurisdiction and cannot be disposed of
unless they are subsequently registered under the Securities Act and any
applicable state laws or exemption from such registration is available.
(d) The Shareholder acknowledges that it is able to bear the economic
risk of its acquisition of the Shareholder's Asset Acceptance Shares for an
indefinite period of time because such shares are being issued under exemptions
from registration provided in the Securities Act and under applicable state
securities laws and, therefore, cannot be sold unless subsequently registered
under the Securities Act or applicable state securities laws or an exemption
from such registrations is available.
2.6 CAPITALIZATION OF AAC INVESTORS.
(a) AAC Investors has an authorized capitalization consisting of
20,000,000 shares of common stock, no par value, of which 10,000,000 shares are
issued and outstanding.
(b) Except for the AAC Investors Shares, AAC Investors has not (i)
issued to any person or entity any shares of the capital stock of AAC Investors,
or any other security, or any right to acquire any such shares or other
securities, or (ii) entered into any agreement regarding the issuance of any
such shares or other securities.
2.7 BALANCE SHEET OF AAC INVESTORS.
(a) Attached to this Agreement as Schedule 2.6 is the balance sheet of
AAC Investors dated as of June 30, 2003 (the "AAC Investors Balance Sheet"). The
AAC Investors Balance Sheet (i) presents fairly the financial position of AAC
Investors as of the date of such balance sheet, and (ii) was prepared in
accordance with generally accepted accounting principles, except as noted
therein.
(b) AAC Investors does not have any material obligation or liability
(whether accrued, absolute, contingent, unliquidated or otherwise, whether due
or to become due), which
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are required to be set forth or provided for in the AAC Investors Balance Sheet
but which are not so set forth or provided for.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE RBR SHAREHOLDERS
Each RBR Shareholder, severally and not jointly, represents and warrants to
the other Parties that the following are true and correct as of the date of this
Agreement and will be true and correct as of the Closing Date.
3.1 THE SHAREHOLDER'S SHARES.
(a) The Shareholder has good and marketable title to the Shareholder's
Shares and is the sole beneficial and record owner of such shares, free and
clear of any and all Liens.
(b) The Shareholder's Shares constitute all of the shares of the
capital stock of RBR Holding owned, directly or indirectly, by the Shareholder.
Other than the Shareholder's Shares, the Shareholder does not, directly or
indirectly own or control (i) any shares of the capital stock, or any other
security, of RBR Holding, (ii) any security convertible into, or exchangeable
for, or other rights to acquire, such shares or other security, or (iii) have
any phantom stock rights or other equity-based rights related to RBR Holding.
(c) Except as set forth in this Agreement, the Shareholder is not
entitled under any circumstances to any dividends, distributions or any other
payment from RBR Holding after the Closing Date.
3.2 AUTHORITY; ENFORCEABILITY. The Shareholder has full power and authority
to enter into this Agreement and to carry out the transactions contemplated by
this Agreement. All corporate proceedings required to be taken by or on the
Shareholder's behalf to authorize the execution, delivery and performance of
this Agreement have been duly and properly taken. This Agreement has been duly
and validly executed and delivered by the Shareholder and constitutes a valid
and binding agreement of the Shareholder enforceable in accordance with its
terms, subject to bankruptcy, insolvency, reorganization, moratorium and other
similar laws relating to or affecting creditors' rights generally, by general
equitable principles (regardless of whether such enforceability is considered in
a proceeding in equity or at law).
3.3 NO CONFLICTS. The execution and delivery of this Agreement by the
Shareholder, the consummation of the transactions contemplated by this Agreement
by the Shareholder, and the compliance with the terms of this Agreement by the
Shareholder do not and will not:
(a) conflict with or result in any breach of any provision of the
Shareholder's governing documents, if applicable, or the terms of any agreement
or other instrument to which the Shareholder is a party;
(b) conflict with, result in a breach of any provision of, constitute
(with or without due notice or lapse of time or both) a default under, result in
the modification or cancellation of, or give rise to any right of termination or
acceleration in respect of, any contract,
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agreement, commitment, understanding, arrangement or restriction of any kind to
which the Shareholder is a party;
(c) violate or conflict with any law, ordinance, code, rule,
regulation, decree, order or ruling of any court or governmental authority, to
which the Shareholder is subject; or
(d) require any authorization, consent, order, permit or approval of,
or notice to, or filing, registration or qualification with, any governmental,
administrative or judicial authority or any other person or entity.
3.4 KNOWLEDGE AND EXPERIENCE; INVESTMENT INTENT.
(a) The Shareholder is an "accredited investor" (as such term is
defined under Regulation D promulgated under the Securities Act).
(b) The Shareholder has such knowledge and experience in business and
financial matters as to be capable of evaluating the merits and risks of the
transactions contemplated by this Agreement. The Shareholder and its advisors
have been afforded the opportunity to ask questions of Asset Acceptance's
executive officers and have been given the opportunity to obtain any additional
information they requested in connection with the transactions contemplated by
this Agreement.
(c) The Shareholder represents that it is acquiring the Shareholder's
Asset Acceptance Shares for its own account, for investment only and not with a
view to, or any present intention of, effecting a distribution of such shares or
any part thereof except pursuant to a registration or an available exemption
under applicable law. The Shareholder acknowledges that the Shareholder's Asset
Acceptance Shares have not been registered under the Securities Act or the
securities laws of any state or other jurisdiction and cannot be disposed of
unless they are subsequently registered under the Securities Act and any
applicable state laws or exemption from such registration is available.
(d) The Shareholder acknowledges that it is able to bear the economic
risk of its acquisition of the Shareholder's Asset Acceptance Shares for an
indefinite period of time because such shares are being issued under exemptions
from registration provided in the Securities Act and under applicable state
securities laws and, therefore, cannot be sold unless subsequently registered
under the Securities Act or applicable state securities laws or an exemption
from such registrations is available.
3.5 CAPITALIZATION OF RBR HOLDING.
(a) RBR Holding has an authorized capitalization consisting of (i)
10,000 shares of Class A Voting Common Stock, no par value, of which 1,000
shares are issued and outstanding, and (ii) 90,000 shares of Class B Non-Voting
Common Stock, no par value, of which 9,526.316 shares are issued and
outstanding.
(b) Except for the RBR Holding Shares, RBR Holding has not (i) issued
to any person or entity any shares of the capital stock of RBR Holding, or any
other security, or any
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right to acquire any such shares or other securities, or (ii) entered into any
agreement regarding the issuance of any such shares or other securities.
3.6 BALANCE SHEET OF RBR HOLDING.
(a) Attached to this Agreement as Schedule 3.6 is the balance sheet of
RBR Holding dated as of June 30, 2003 (the "RBR Holding Balance Sheet"). The RBR
Holding Balance Sheet (i) presents fairly the financial position of RBR Holding
as of the date of such balance sheet, and (ii) was prepared in accordance with
generally accepted accounting principles, except as noted therein.
(b) RBR Holding does not have any material obligation or liability
(whether accrued, absolute, contingent, unliquidated or otherwise, whether due
or to become due), which are required to be set forth or provided for in the RBR
Holding Balance Sheet but which are not so set forth or provided for.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF AAC INVESTORS
AAC Investors represents and warrants to the other Parties that the
following are true and correct as of the date of this Agreement and will be true
and correct as of the Closing Date.
4.1 EXISTENCE AND GOOD STANDING. AAC Investors is a corporation duly
organized, validly existing, and in good standing under the laws of the
Commonwealth of Virginia.
4.2 AUTHORITY; ENFORCEABILITY. AAC Investors has full power and authority
to enter into this Agreement and to carry out the transactions contemplated by
this Agreement. All corporate, shareholder, or other proceedings required to be
taken by or on AAC Investors' behalf to authorize the execution, delivery and
performance of this Agreement have been duly and properly taken. This Agreement
has been duly and validly executed and delivered by AAC Investors and
constitutes a valid and binding agreement of AAC Investors enforceable in
accordance with its terms, subject to bankruptcy, insolvency, reorganization,
moratorium and other similar laws relating to or affecting creditors' rights
generally, by general equitable principles (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
4.3 NO CONFLICTS. The execution and delivery of this Agreement, the
consummation of the transactions contemplated by this Agreement and the
compliance with the terms of this Agreement do not and will not:
(a) conflict with or result in any breach of any provision of AAC
Investors' Articles of Incorporation or Bylaws or other similar governing
documents or the terms of any agreement or other instrument to which AAC
Investors is a party;
(b) conflict with, result in a breach of any provision of, constitute
(with or without due notice or lapse of time or both) a default under, result in
the modification or cancellation of, or give rise to any right of termination or
acceleration in respect of, any contract,
7
agreement, commitment, understanding, arrangement or restriction of any kind to
which AAC Investors is a party;
(c) violate or conflict with any law, ordinance, code, rule,
regulation, decree, order or ruling of any court or governmental authority, to
which AAC Investors is subject; or
(d) require any authorization, consent, order, permit or approval of,
or notice to, or filing, registration or qualification with, any governmental,
administrative or judicial authority or any other person or entity.
4.4 CAPITALIZATION OF AAC INVESTORS.
(a) AAC Investors has an authorized capitalization consisting of
20,000,000 shares of common stock, no par value, of which 10,000,000 shares are
issued and outstanding.
(b) Except for the AAC Investors' Shares, AAC Investors has not (i)
issued to any person or entity any shares of the capital stock of AAC Investors,
or any other security, or any right to acquire any such shares or other
securities, or (ii) entered into any agreement regarding the issuance of any
such shares or other securities.
4.5 BALANCE SHEET OF AAC INVESTORS.
(a) The AAC Investors Balance Sheet (i) presents fairly the financial
position of AAC Investors as of the date of such balance sheet, and (ii) was
prepared in accordance with generally accepted accounting principles, except as
noted therein.
(b) AAC Investors does not have any material obligation or liability
(whether accrued, absolute, contingent, unliquidated or otherwise, whether due
or to become due), which are required to be set forth or provided for in the AAC
Investors Balance Sheet but which are not so set forth or provided for.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF RBR HOLDING
RBR Holding represents and warrants to the other Parties that the
following are true and correct as of the date of this Agreement and will be true
and correct as of the Closing Date.
5.1 EXISTENCE AND GOOD STANDING. RBR Holding is a corporation duly
organized, validly existing, and in good standing under the laws of the State of
Nevada.
5.2 AUTHORITY; ENFORCEABILITY. RBR Holding has full power and authority
to enter into this Agreement and to carry out the transactions contemplated by
this Agreement. All corporate, shareholder, or other proceedings required to be
taken by or on RBR Holding's behalf to authorize the execution, delivery and
performance of this Agreement have been duly and properly taken. This Agreement
has been duly and validly executed and delivered by RBR Holding and constitutes
a valid and binding agreement of RBR Holding enforceable in accordance with its
terms, subject to bankruptcy, insolvency, reorganization, moratorium and other
similar laws relating to or affecting creditors' rights generally, by general
equitable
8
principles (regardless of whether such enforceability is considered in a
proceeding in equity or at law).
5.3 NO CONFLICTS. The execution and delivery of this Agreement, the
consummation of the transactions contemplated by this Agreement and the
compliance with the terms of this Agreement do not and will not:
(a) conflict with or result in any breach of any provision of RBR
Holding's Articles of Incorporation or Bylaws or other similar governing
documents or the terms of any agreement or other instrument to which RBR Holding
is a party;
(b) conflict with, result in a breach of any provision of, constitute
(with or without due notice or lapse of time or both) a default under, result in
the modification or cancellation of, or give rise to any right of termination or
acceleration in respect of, any contract, agreement, commitment, understanding,
arrangement or restriction of any kind to which RBR Holding is a party;
(c) violate or conflict with any law, ordinance, code, rule,
regulation, decree, order or ruling of any court or governmental authority, to
which RBR Holding is subject; or
(d) require any authorization, consent, order, permit or approval of,
or notice to, or filing, registration or qualification with, any governmental,
administrative or judicial authority or any other person or entity.
5.4 CAPITALIZATION OF RBR HOLDING.
(a) RBR Holding has an authorized capitalization consisting of (i)
10,000 shares of Class A Voting Common Stock, no par value, of which 1,000
shares are issued and outstanding, and (ii) 90,000 shares of Class B Non-Voting
Common Stock, no par value, of which 9,526.316 shares are issued and
outstanding.
(b) Except for the RBR Holding Shares, RBR Holding has not (i) issued
to any person or entity any shares of the capital stock of RBR Holding, or any
other security, or any right to acquire any such shares or other securities, or
(ii) entered into any agreement regarding the issuance of any such shares or
other securities.
5.5 BALANCE SHEET OF RBR HOLDING.
(a) The RBR Holding Balance Sheet (i) presents fairly the financial
position of RBR Holding as of the date of such balance sheet, and (ii) was
prepared in accordance with generally accepted accounting principles, except as
noted therein.
(b) RBR Holding does not have any material obligation or liability
(whether accrued, absolute, contingent, unliquidated or otherwise, whether due
or to become due), which are required to be set forth or provided for in the RBR
Holding Balance Sheet but which are not so set forth or provided for.
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ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF ASSET ACCEPTANCE
Asset Acceptance represents and warrants to the other Parties that the
following are true and correct as of the date of this Agreement and will be true
and correct as of the Closing Date.
6.1 EXISTENCE AND GOOD STANDING. Asset Acceptance is a corporation duly
organized, validly existing, and in good standing under the laws of the State of
Delaware.
6.2 AUTHORITY; ENFORCEABILITY. Asset Acceptance has full power and
authority to enter into this Agreement and to carry out the transactions
contemplated by this Agreement. All corporate, shareholder, or other proceedings
required to be taken by or on Asset Acceptance's behalf to authorize the
execution, delivery and performance of this Agreement have been duly and
properly taken. This Agreement has been duly and validly executed and delivered
by Asset Acceptance and constitutes a valid and binding agreement of Asset
Acceptance enforceable in accordance with its terms, subject to bankruptcy,
insolvency, reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally, by general equitable principles
(regardless of whether such enforceability is considered in a proceeding in
equity or at law).
6.3 NO CONFLICTS. The execution and delivery of this Agreement, the
consummation of the transactions contemplated by this Agreement and the
compliance with the terms of this Agreement do not and will not:
(a) conflict with or result in any breach of any provision of Asset
Acceptance's Certificate of Incorporation or Bylaws or other similar governing
documents or the terms of any agreement or other instrument to which Asset
Acceptance is a party;
(b) conflict with, result in a breach of any provision of, constitute
(with or without due notice or lapse of time or both) a default under, result in
the modification or cancellation of, or give rise to any right of termination or
acceleration in respect of, any contract, agreement, commitment, understanding,
arrangement or restriction of any kind to which Asset Acceptance is a party;
(c) violate or conflict with any law, ordinance, code, rule,
regulation, decree, order or ruling of any court or governmental authority, to
which Asset Acceptance is subject; or
(d) require any authorization, consent, order, permit or approval of,
or notice to, or filing, registration or qualification with, any governmental,
administrative or judicial authority or any other person or entity.
6.4 THE ASSET ACCEPTANCE SHARES. The Asset Acceptance Shares, when issued
pursuant to the terms of this Agreement, will be duly authorized, validly
issued, fully paid and non-assessable, and free and clear of any and all Liens.
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ARTICLE VII
COVENANTS OF THE PARTIES
7.1 ADDITIONAL DOCUMENTS AND FURTHER ASSURANCES. Each Party, at the request
of another Party, shall execute and deliver such other instruments and do and
perform such other acts and things as may be necessary or desirable for
effecting completely the consummation of the transactions contemplated by this
Agreement.
ARTICLE VIII
MISCELLANEOUS
8.1 PRESS RELEASES AND PUBLIC ANNOUNCEMENTS. No Party shall issue any press
release or make any public announcement relating to the subject matter of this
Agreement without the prior written approval of the other Parties.
8.2 MODIFICATION OR AMENDMENT. The Parties may modify or amend this
Agreement only by a written agreement executed and delivered by all of the
Parties.
8.3 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, including by fax or scanned copy, each such counterpart shall
constitute an original instrument, and all such counterparts shall together
constitute the same agreement.
8.4 GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware, without giving effect to its
conflicts of law principles.
8.5 NOTICES. Any notice, request, instruction or other document to be given
under this Agreement by any Party to the other Parties shall be in writing and
delivered personally or sent by registered or certified mail, postage prepaid,
by recognized overnight courier, or by fax (with a confirming copy sent by
overnight courier) to the address the Party has given to Asset Acceptance.
8.6 ENTIRE AGREEMENT. This Agreement constitutes the entire agreement among
the Parties with respect to the subject matter of this Agreement and supersede
all other prior and contemporaneous agreements and understandings, both written
and oral, among the Parties or any of them with respect to the subject matter of
this Agreement.
8.7 PARTIES IN INTEREST. This Agreement shall be binding upon and inure
solely to the benefit of each Party and its respective successors and assigns.
Nothing in this Agreement, express or implied, is intended to or shall confer
upon any other person any rights, benefits or remedies of any nature whatsoever
under or by reason of this Agreement.
8.8 PARTIAL INVALIDITY. Insofar as possible, each provision of this
Agreement shall be interpreted so as to render it valid and enforceable under
applicable law and severable from the remainder of this Agreement. A finding
that any provision is invalid or unenforceable in any jurisdiction shall not
affect the validity or enforceability of any other provision or the validity or
enforceability of such provision under the laws of any other jurisdiction.
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8.9 ASSIGNMENT. No Party may assign this Agreement nor any of its rights,
interests, or obligations under this Agreement without the prior written consent
of all of the other Parties.
* * * * * * * * * * * * * * * * * * *
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The Parties executed this Share Exchange Agreement as of the date first-
above written.
ASSET ACCEPTANCE CAPITAL CORP.
/s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇
------------------------------
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇, Chief Executive Officer
AAC INVESTORS, INC.
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇ ▇. ▇▇▇▇▇, Vice President and Secretary
AAC QUAD-C INVESTORS LLC
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇ ▇. ▇▇▇▇▇, Vice President and Secretary
RBR HOLDING CORP.
/s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇
------------------------------
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇, President
[Signature Page to Share Exchange Agreement]
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▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇ REVOCABLE LIVING TRUST,
AS AMENDED
/s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇
------------------------------
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇, Trustee
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇., REVOCABLE LIVING TRUST,
AS AMENDED
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇., Trustee
▇▇▇▇ ▇. ▇▇▇▇▇▇ REVOCABLE LIVING TRUST, DATED
OCTOBER 22, 2001
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇, Trustee
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ REVOCABLE LIVING TRUST, AS AMENDED
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Trustee
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ V IRREVOCABLE TRUST 2003
/s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇
------------------------------
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇, Co-Trustee
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Co-Trustee
[Signature Page to Share Exchange Agreement]
14
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ IRREVOCABLE TRUST 2003
/s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇
------------------------------
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇, Co-Trustee
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Co-Trustee
▇▇▇▇▇▇▇ IRREVOCABLE TRUST 2003
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Trustee
THE ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ TRUST - 1999
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇., Co-Trustee
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Co-Trustee
THE ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ TRUST - 1999
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇., Co-Trustee
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Co-Trustee
[Signature Page to Share Exchange Agreement]
15
THE ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ TRUST - 1999
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇., Co-Trustee
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Co-Trustee
THE ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ TRUST - 1999
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇., Co-Trustee
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Co-Trustee
THE ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ IRREVOCABLE TRUST - 2003
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇., Co-Trustee
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Co-Trustee
[Signature Page to Share Exchange Agreement]
16
SCHEDULE 2.6
AAC INVESTORS BALANCE SHEET
See attached.
SCHEDULE 3.6
RBR BALANCE SHEET
See attached.
EXHIBIT A
AAC INVESTORS, INC.
Name of Shareholder Class No. of Shares % of Class Certif. No.
------------------- ----- ------------- ---------- -----------
AAC Quad-C Investors LLC Common 10,000,000 100.0%
A-1
EXHIBIT B
RBR HOLDING CORP.
CURRENT HOLDINGS
CLASS A VOTING
Name of Shareholder Class No. of Shares % of Class Certif. No.
------------------- ----- ------------- ---------- -----------
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇ Revocable Living Class A Voting 400 40.00 2A
Trust, as amended
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇. Revocable Living Class A Voting 600 60.00 7A
Trust, as amended
TOTAL CLASS A VOTING 1,000 100.00%
===== ======
B-1
CLASS B NON-VOTING
Name of Shareholder Class No. of Shares % of Class Certif.
------------------- ----- ------------- ---------- -------
No.
-------
▇▇▇▇ ▇. ▇▇▇▇▇▇ Revocable Living Trust, dated October 22, 2001 Class B Non-Voting 526.316 5.525 13B
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇. Revocable Living Trust, as amended Class B Non-Voting 2,280.000 23.934 14B
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Revocable Living Trust, as amended Class B Non-Voting 2,280.000 23.934 15B
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ V Irrevocable Trust 2003 Class B Non-Voting 536.000 5.626 18B
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Irrevocable Trust 2003 Class B Non-Voting 536.000 5.626 19B
▇▇▇▇▇▇▇ Irrevocable Trust 2003 Class B Non-Voting 162.000 1.700 16B
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇ Revocable Living Trust, as amended Class B Non-Voting 2,366.000 24.836 17B
The ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Trust - 1999 Class B Non-Voting 168.000 1.763
The ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Trust - 1999 Class B Non-Voting 168.000 1.763
The ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ Trust - 1999 Class B Non-Voting 168.000 1.763
The ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ Trust - 1999 Class B Non-Voting 168.000 1.763
The ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Irrevocable Trust - 2003 Class B Non-Voting 168.000 1.763
TOTAL CLASS B NON-VOTING 9,526.316 100.000%*
========= =========
* Subject to correction for rounding.
B-2
EXHIBIT C
EXCHANGE CALCULATION
Before the Closing Date, the Board of Directors of Asset Acceptance will
determine the aggregate number of shares of Asset Acceptance common stock to be
issued and outstanding prior to (a) the issuance of shares pursuant to the
Registration Statement, and (b) the issuance of shares pursuant to the Asset
Acceptance Holdings LLC Year 2002 Share Appreciation Rights Plan (the "Total
Number of Shares"). The valuation of Asset Acceptance common stock before the
Closing Date will be equal to the price per common share given by the
underwriters in connection with the Registration Statement multiplied by the
Total Number of Shares (the "Asset Acceptance Valuation").
The number of Asset Acceptance Shares which the Shareholders will receive in
exchange for the Shareholders' Shares will be determined as follows.
AAC INVESTORS SHAREHOLDER
The AAC Investors Shareholder will receive the number of shares of Asset
Acceptance common stock equal to the product of (a) the Total Number of Shares,
multiplied by (b) the fraction calculated as follows.
The numerator of the fraction is an amount equal to:
(a) the product of (i) 0.60, multiplied by (ii) the sum of (A)
the Asset Acceptance Valuation, plus (B) the outstanding principal
amount of AAC Investors debt and all accrued but unpaid interest on
such debt as of the Closing Date, minus
(b) the outstanding principal amount of AAC Investors debt and
all accrued but unpaid interest on such debt as of the Closing Date.
The denominator of the fraction is the Asset Acceptance Valuation.
THE RBR SHAREHOLDERS
The RBR Shareholders collectively will receive the number of shares of Asset
Acceptance common stock equal to the product of (a) the Total Number of Shares,
multiplied by (b) the fraction calculated as follows.
The numerator of the fraction is an amount equal to the product of (i)
0.40, multiplied by (ii) the sum of (A) the Asset Acceptance Valuation,
plus (B) the outstanding principal amount of AAC Investors debt and all
accrued but unpaid interest on such debt as of the Closing Date.
The denominator of the fraction is the Asset Acceptance Valuation.
C-1
The individual RBR Shareholders will receive a portion of the aggregate number
of Asset Acceptance shares received by the RBR Shareholders as a group in the
percentage listed opposite their names below.
Name of RBR Shareholder % of Total Rec'd By
----------------------- RBR Shareholders
-------------------
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇ Revocable Living 26.277
Trust, as amended
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇. Revocable Living Trust, 27.360
as amended
▇▇▇▇ ▇. ▇▇▇▇▇▇ Revocable Living Trust, dated 5.000
October 22, 2001
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Revocable Living Trust, as 21.660
amended
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ V Irrevocable Trust 2003 5.092
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Irrevocable Trust 2003 5.092
▇▇▇▇▇▇▇ Irrevocable Trust 2003 1.539
The ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Trust - 1999 1.596
The ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Trust - 1999 1.596
The ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ Trust - 1999 1.596
The ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ Trust - 1999 1.596
The ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Irrevocable Trust - 2003 1.596
TOTAL 100.000%
C-2
EXAMPLE
Assuming the Asset Acceptance Valuation is $350.0 million and assuming that the
AAC Investors debt and accrued interest on the Closing Date is $38.5 million,
then the AAC Investors Shareholder and the RBR Shareholders will receive the
following percentage of the Total Number of Shares.
The AAC Investors Shareholder.
Percentage = [(0.60)($350.0 million + $38.5 million)] - $38.5 million
--------------------------------------------------------
$350.0 million
Percentage = [(0.60)($388.5 million)] - $38.5 million
----------------------------------------
$350.0 million
Percentage = $233.1 million - $38.5 million
------------------------------
$350.0 million
Percentage = $194.6 million
--------------
$350.0 million
Percentage = 0.556
Therefore, the AAC Investors Shareholder would receive 55.6% of the Total
Number of Shares.
The RBR Shareholders.
Percentage = [(0.40)($350.0 million + $38.5 million)]
----------------------------------------
$350.0 million
Percentage = [(0.40)($388.5 million)]
------------------------
$350.0 million
Percentage = $155.4 million
--------------
$350.0 million
Percentage = 0.444
Therefore, the RBR Shareholders collectively would receive 44.4% of the
Total Number of Shares.
C-3
Assuming for purposes of this example that the Total Number of Shares is
20,000,000, the Shareholders would receive the following number of Asset
Acceptance Shares.
Name of Shareholder Total Number of Shares % of Total Number of Shares
------------------- ---------------------- ---------------------------
AAC Quad-C Investors LLC 11,120,000 55.600%
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇ Revocable Living Trust, 2,333,400 11.667%
as amended
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇. Revocable Living Trust, 2,429,600 12.148%
as amended
▇▇▇▇ ▇. ▇▇▇▇▇▇ Revocable Living Trust, dated 440,000 2.220%
October 22, 2001
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Revocable Living Trust, as 1,923,400 9.617%
amended
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ V Irrevocable Trust 2003 452,200 2.261%
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Irrevocable Trust 2003 452,200 2.261%
▇▇▇▇▇▇▇ Irrevocable Trust 2003 136,600 0.683%
The ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Trust - 1999 141,800 0.709%
The ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Trust - 1999 141,800 0.709%
The ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ Trust - 1999 141,800 0.709%
The ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ Trust - 1999 141,800 0.709%
The ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Irrevocable Trust - 2003 141,800 0.709%
TOTAL 20,000,000* 100.000%*
* Subject to correction for rounding.
C-4
EXHIBIT D
ASSIGNMENT SEPARATE FROM CERTIFICATE
October ___, 2003
The undersigned (the "Assignor") hereby fully and irrevocably grants,
assigns, and transfers to Asset Acceptance Capital Corp., a Delaware
corporation, and its successors and assigns (collectively, "the "Assignee"), the
following property:
All of the shares of [___________________] stock of [AAC
Investors/RBR] (the "Company"), represented by Certificate No.
____, and standing in the Assignor's name in the books and
records of the Company (the "Shares").
The Assignor hereby irrevocably appoints _____________________________
to be the Assignor's true and lawful attorney-in-fact, with full power of
substitution, to sell, transfer, hypothecate, liquidate or otherwise dispose of
all or any portion of the Shares, from time to time, and, for that purpose, to
make, sign, execute, and deliver any documents or perform any other act
necessary for such sale, transfer, hypothecation, liquidation or other
disposition. The Assignor acknowledges that this appointment is coupled with an
interest and shall not be revocable for any reason.
ASSIGNOR
---------------------------------
Printed Name of Selling Shareholder
By: ________________________
Name: ________________________
Title: ________________________
D-1
