Exhibit 10.2
RESTRICTED STOCK AGREEMENT
This Restricted Stock Agreement ("Agreement") dated January 28, 2003 (the
"Effective Date"), is by and between Ace Cash Express, Inc., a Texas corporation
(the "Company"), and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ("Grantee").
WHEREAS, the Company desires to provide an incentive to Grantee, in the
form of shares of the Company's capital stock, to encourage Grantee's long-term
performance for the Company and its shareholders and more closely align
Grantee's interest in the Company with that of the Company's shareholders;
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
set forth in this Agreement, and intending to be legally bound hereby, Grantee
and the Company (collectively, the "Parties") hereby agree as follows:
1. Issuance of Stock. The Company hereby agrees to issue to Grantee, and
Grantee hereby agrees to purchase, 2,500 shares (the "Restricted Shares") of the
Common Stock, $0.01 par value per share, of the Company ("Common Stock"), at a
purchase price of $0.01 per share (the "Purchase Price Per Share"), in
accordance with this Agreement and subject to the terms and conditions of the
Ace Cash Express, Inc. 1997 Stock Incentive Plan (the "Plan"), which are
incorporated herein, as an incentive for Grantee's continued efforts on behalf
of the Company as one of its executive officers. The total purchase price for
the Restricted Shares shall be paid by Grantee's delivery to the Company at the
time of execution of this Agreement of cash or a check or any combination
thereof.
2. Forfeiture and Repurchase. Upon any cessation of Grantee's employment
by, as an executive officer of, the Company (regardless of the circumstances in
which such employment ceases) before the Restricted Shares are released from the
Forfeiture Restrictions described in Section 3, the Company shall have, on the
date of such cessation of employment (the "Termination Date"), an irrevocable,
exclusive option (the "Forfeiture Repurchase Option"), for a period of ninety
(90) days from the Termination Date (the "Forfeiture Repurchase Period"), to
repurchase up to all of the Restricted Shares on the Termination Date at the
original Purchase Price Per Share (the "Repurchase Price"). The Forfeiture
Repurchase Option shall be exercisable by written notice delivered to Grantee
before the expiration of the Forfeiture Repurchase Period. The notice shall
indicate the number of the Restricted Shares to be repurchased and the date on
which the repurchase is to be effected, such date to be not later than fifteen
(15) days after the expiration of the Forfeiture Repurchase Period. On the date
of the repurchase, the Company and/or its assignee(s) shall pay to Grantee, at
the Company's and/or each assignee's option, in cash, by check of the Company
and/or such assignee, by cancellation of all or a portion of any indebtedness of
Grantee to the Company or such assignee, or a combination of the foregoing, an
amount equal to the Repurchase Price for each of the Restricted Shares that is
to be repurchased from Grantee. Upon such payment to Grantee or deposit of such
amount into escrow for the benefit of Grantee, the Company and/or its
assignee(s) shall become the legal and beneficial
owner of the Restricted Shares being repurchased and all rights and interests
therein or related thereto, and the Company shall have the right to transfer to
its own name or to the names of its assignee(s) the Restricted Shares being
forfeited and repurchased without any further action of Grantee. The Company may
designate and assign one or more other persons or entities (including any
affiliates of the Company) to exercise all or any part of the Forfeiture
Repurchase Option. The Parties expressly agree that these provisions governing
the forfeiture and repurchase of the Restricted Shares shall be specifically
enforceable by the Company in a court of equity or law.
3. Forfeiture Restrictions. The Grantee may not sell, transfer, pledge,
exchange, hypothecate, or otherwise dispose of any of the Restricted Shares
(collectively, the "Forfeiture Restrictions"), before the termination or lapse
of the Forfeiture Restrictions as described below, except in connection with the
escrow described in Section 7. Upon the termination of Forfeiture Restrictions
regarding the Restricted Shares, one or more stock certificates representing the
Restricted Shares, free of Forfeiture Restrictions, shall be delivered to
Grantee at Grantee's request in accordance with this Agreement. The Forfeiture
Restrictions shall terminate upon the occurrence of:
(a) July 1, 2007, if Grantee is then employed by, as an executive officer,
of the Company and has been continuously so employed since the Effective Date;
(b) a Change of Control, as defined in Exhibit A attached hereto, on or
after the first anniversary of the Effective Date and before July 1, 2007; or
(c) a decision by the Compensation Committee (the "Committee") of the
Company's Board of Directors (the "Board"), in its sole discretion and as of a
date determined by the Committee, fully vesting any or all of the Restricted
Shares (with the result that only the Forfeiture Restrictions affecting those
Restricted Shares which the Committee chooses to vest in Grantee shall
terminate).
As permitted by clause (ii) of the second paragraph of Section 14 of the
Plan, subsection (b) of this Section 3 is a partial exception to the general
rule stated in that clause (ii). Subsection (b) of this Section 3 refers to the
only events, of the various events described at the beginning of the second
paragraph of Section 14 of the Plan, in which the Forfeiture Restrictions shall
terminate or lapse, unless the Committee otherwise decides in accordance with
subsection (c) of this Section 3.
4. Representations of Grantee. Grantee represents and warrants to the
Company as follows:
(a) Grantee has received, read, and understood the Plan and this Agreement
and agrees to abide by and be bound by their terms and conditions.
(b) Grantee is acquiring the Restricted Shares for his own account for
investment purposes only and not with a view to, or for sale in connection with,
any unregistered distribution or sale of the Restricted Shares in violation of
the Securities Act of 1933, as amended (the "Securities Act"), or any applicable
state securities laws.
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(c) Grantee has no present intention of selling or otherwise disposing of
all or any number of the Restricted Shares.
(d) Grantee is fully aware of the financial risks involved in an
acquisition of the Restricted Shares and the lack of liquidity of the Restricted
Shares (because of the restrictions on transferability of the Restricted Shares
-- e.g., that Grantee may not be able to sell or dispose of the Restricted
Shares or use them as collateral for loans).
(e) Grantee is capable of evaluating the merits and risks of this
acquisition of the Restricted Shares, has the ability to protect his own
interests in this transaction, and is financially capable of bearing a loss of
the value of the Restricted Shares.
(f) Grantee represents that he is a resident of the State of Texas.
5. Compliance with Securities Law. Grantee understands and acknowledges
that the Restricted Shares have not been registered under the Securities Act or
any state securities laws and that, notwithstanding any other provision of this
Agreement to the contrary, his acquisition of the Restricted Shares is expressly
conditioned upon compliance with the Securities Act and all applicable state
securities laws. Grantee agrees to cooperate with the Company to ensure
compliance with such laws. The Restricted Shares are being issued under the
Securities Act pursuant to the exemption provided by Rule 506 under the
Securities Act.
6. Certain Restrictions on Transfer. Grantee understands that the
Restricted Shares must be held indefinitely unless they are registered under the
Securities Act and applicable state securities laws or unless exemptions from
such registration are available and that the certificate(s) representing the
Restricted Shares shall bear a legend to that effect. Grantee understands that
the Company is under no obligation to register any resale of any of the
Restricted Shares that may become transferable upon the termination or lapse of
Forfeiture Restrictions and that an exemption may not be available or may not
permit Grantee to resell or transfer any of such Restricted Shares in the
amounts or at the times proposed by Grantee. Grantee has been advised that Rule
144 promulgated under the Securities Act, which permits certain resales of
unregistered securities, is not now available with respect to the Restricted
Shares and, in any event, currently requires that the Restricted Shares be paid
for and held for a minimum of one year before they may be resold under Rule 144.
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7. Escrow of Restricted Shares.
(a) To ensure the availability for delivery of the Restricted Shares upon
forfeiture and repurchase in accordance with Section 2, Grantee shall, upon
execution of this Agreement, deliver and deposit with an escrow holder
designated by the Company (the "Escrow Holder") the share certificate(s)
representing the Restricted Shares, together with the stock assignment attached
hereto as Exhibit B duly endorsed in blank. The Restricted Shares and stock
assignment shall be held by the Escrow Holder, pursuant to the Joint Escrow
Instructions of the Company and Grantee attached hereto as Exhibit C, until such
time as the Forfeiture Restrictions terminate or lapse or the Restricted Shares
are forfeited and repurchased in accordance with Section 2.
(b) The Escrow Holder shall not be liable for any act he or she may do or
omit to do with respect to holding the Restricted Shares and/or any other
property in escrow while acting in good faith and in the exercise of his or her
judgment.
(c) Upon the forfeiture and repurchase of all or any number of the
Restricted Shares by the Company in accordance with Section 2, the Escrow
Holder, upon receipt of written notice from the Company, shall take all steps
necessary to accomplish the transfer of the Restricted Shares to the Company
and/or its assignee(s).
(d) Upon the termination or lapse of the Forfeiture Restrictions regarding
all or any number of the Restricted Shares and the request of Grantee, the
Escrow Holder shall promptly deliver the certificate(s) to Grantee representing
those Restricted Shares.
(e) Subject to the terms of this Agreement, Grantee shall have all the
rights of a shareholder with respect to the Restricted Shares while they are
held in escrow, including the right to vote the Restricted Shares and to receive
any dividends thereon.
8. Capital Adjustments and Distributions.
(a) The number of the Restricted Shares and the Repurchase Price of each
of the Restricted Shares shall be adjusted in accordance with the provisions of
the first paragraph of Section 14 of the Plan.
(b) Any new, substituted or additional securities or other property
(including any money paid other than as a regular cash dividend) that is, by
reason of any stock dividend, stock split, recapitalization, or other change in
the outstanding Common Stock, distributed on or with respect to the Restricted
Shares shall be immediately subject to the Forfeiture Restrictions described in
Section 3 and to the forfeiture and repurchase provisions of Section 2.
Appropriate adjustments, as determined by the Committee, to reflect the
distribution of such securities or other property shall be made to the number of
the Restricted Shares and to the Repurchase Price of each of the Restricted
Shares in order to reflect any such event; except that the aggregate Repurchase
Price for all of the Restricted Shares shall remain unchanged.
9. Administration. The Committee shall interpret this Agreement and shall
prescribe such rules and regulations in connection with the operation of the
Agreement as the Committee determines (in good faith) to be advisable. The
Committee may rescind and amend its rules and
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regulations from time to time. The good-faith interpretation by the Committee of
any of the provisions of this Agreement shall be final and binding upon the
Company and Grantee.
10. Effect of Agreement. Neither the execution of this Agreement nor any
action of the Board or the Committee in connection with or relating to this
Agreement shall be deemed to give Grantee any rights except as may be expressed
in this Agreement. The existence of the Plan and this Agreement shall not affect
in any way the right of the Board, the Committee, or the shareholders of the
Company to make or authorize any adjustment, recapitalization, reorganization,
or other change in the Company's capital structure or its business, any merger
or consolidation or other transaction involving the Company, any issuance of
other shares of Common Stock or any other securities of the Company (including
bonds, debentures, or shares of preferred stock ahead of or affecting the Common
Stock or the rights thereof), the dissolution or liquidation of the Company or
any sale or transfer of all or any part of the Company's assets or business, or
any other corporate act or proceeding by or for the Company. Nothing in the Plan
or in this Agreement shall confer upon Grantee any right with respect to the
Grantee's employment with the Company or affect or interfere in any way with the
right of either the Company or Grantee to terminate Grantee's employment (with
or without cause).
11. Refusal to Transfer. The Company shall not be required to (i) transfer
on its books, or authorize the Company's transfer agent to transfer on its
books, any Restricted Shares purported to have been sold or otherwise
transferred in violation of any of the provisions of the Plan or this Agreement,
or (ii) treat as owner of such Restricted Shares, or accord the right to vote or
to any dividends or other distributions to, any purchaser or other transferee to
whom or which such Restricted Shares have been purported to be so transferred.
12. Legend. The share certificate(s) representing the Restricted Shares
shall be endorsed with the following legend, in addition to any legend, required
under applicable securities laws:
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO FORFEITURE AND
REPURCHASE AND TO CERTAIN RESTRICTIONS ON RESALE AND TRANSFER. NONE OF THE
SHARES MAY BE TRANSFERRED EXCEPT AS SET FORTH IN THAT CERTAIN RESTRICTED STOCK
AGREEMENT BETWEEN THE COMPANY AND THE ORIGINAL HOLDER OF THESE SHARES, A COPY OF
WHICH MAY BE OBTAINED AT THE PRINCIPAL OFFICE OF THE COMPANY.
13. Tax Consequences. Grantee has reviewed with his own tax advisor(s) the
federal, state, and local tax consequences of this acquisition of the Restricted
Shares and the other transactions contemplated by this Agreement. Grantee is
relying solely on such advisor(s) and not on any statements or representations
of the Company or any of its agents. Grantee understands and agrees that he, and
not the Company, shall be responsible for his own tax liability that may arise
as a result of the transactions contemplated by this Agreement. Grantee
understands that Section 83 of the Internal Revenue Code of 1986, as amended
(which, including any amendments and successor provisions to any section
referenced herein and any Treasury regulations promulgated under such section,
is hereinafter referred to as the "Code"), taxes as ordinary income the
difference between the purchase price for the Restricted Shares and the fair
market value of the Restricted Shares as of the date any restrictions on the
Restricted Shares
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terminate or lapse. In this context, "restriction" includes the Forfeiture
Restrictions and the right of the Company to repurchase the Restricted Shares
pursuant to Section 2. Grantee understands that he may elect to be taxed at the
time the Restricted Shares are granted, rather than when and as the restrictions
terminate or lapse (if ever), by filing an election under Section 83(b) of the
Code with the Internal Revenue Service within thirty (30) days from the
Effective Date. GRANTEE ACKNOWLEDGES THAT IT IS HIS SOLE RESPONSIBILITY (AND NOT
THE COMPANY'S) TO FILE TIMELY THE ELECTION UNDER SECTION 83(b), EVEN IF GRANTEE
REQUESTS THE COMPANY OR ITS REPRESENTATIVES TO MAKE THAT FILING ON HIS BEHALF.
14. Entire Agreement; Governing Law. This Agreement and the Plan
constitute the entire agreement of the Parties with respect to the subject
matter hereof and supersede all prior undertakings and agreements of the Parties
with respect to the subject matter hereof. Nothing in the Plan or in this
Agreement (except as expressly provided herein) is intended to confer any rights
or remedies on any person other than the Parties. This Agreement is to be
construed in accordance with, enforced under, and governed by the laws of the
State of Texas.
15. Amendment. The Committee may at any time or from time to time amend
this Agreement in any respect, except that no amendment that adversely affects
Grantee may be effected without a writing signed by the Parties.
16. Effectiveness and Term. This Agreement is effective upon the Effective
Date, and it shall continue in effect until the termination or lapse of the
Forfeiture Restrictions or until all of the Restricted Shares are transferred to
the Company and/or its assignee(s), unless sooner terminated by the Parties.
17. Interpretive Matters. Whenever required by the context, pronouns and
any variation thereof used in this Agreement shall be deemed to refer to the
masculine, feminine, or neuter, and the singular shall include the plural, and
vice versa. The term "include" or "including" does not denote or imply any
limitation. The term "business day" means any Monday through Friday other than
such a day on which banks are authorized to be closed in the State of Texas.
Each reference in this Agreement to a "Section" shall be deemed to be to a
section of this Agreement, unless otherwise stated. The captions and headings
used in this Agreement are inserted for convenience and shall not be deemed a
part of this Agreement for construction or interpretation.
18. Venue. Any suit, action, or proceeding arising out of or relating to
this Agreement shall be brought in the United States District Court for the
Northern District of Texas or in a Texas state court in Dallas County, Texas,
and the Parties shall submit to the jurisdiction of such court. Each of the
Parties irrevocably waives, to the fullest extent permitted by law, any
objection it or he may have to the laying of venue for any such suit, action, or
proceeding brought in such court. EACH OF THE PARTIES ALSO EXPRESSLY WAIVES ANY
RIGHT IT OR HE HAS OR MAY HAVE TO A JURY TRIAL OF ANY SUCH SUIT, ACTION, OR
PROCEEDING.
19. Severability and Reformation. If any provision of this Agreement is
held to be illegal, invalid, or unenforceable under present or future law, such
provision shall be fully
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severable and severed, and this Agreement shall be construed and enforced as if
such illegal, invalid, or unenforceable provision were never a part hereof, and
the remaining provisions of the Agreement shall remain in full force and effect
and shall not be affected by the illegal, invalid, or unenforceable provision or
its severance.
20. Notice. Any notice or other communication required or permitted
hereunder shall be given in writing and shall be deemed given, effective, and
received upon prepaid delivery in person or by courier, or upon the earlier of
delivery or the third business day after deposit in the United States mail if
sent by certified mail, with postage and fees prepaid, in any case addressed to
the other Party at its or his address as shown beneath its or his signature to
this Agreement, or to such other address as such Party may designate in writing
from time to time by notice to the other Party in accordance with this Section
20.
ACE CASH EXPRESS, INC.
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
--------------------
▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, President & COO
Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
GRANTEE ACKNOWLEDGES AND AGREES THAT THE FORFEITURE RESTRICTIONS ON THE
RESTRICTED SHARES SHALL LAPSE, IF AT ALL, ONLY AS EXPRESSLY STATED IN THIS
AGREEMENT (NOT THROUGH BEING ISSUED THE RESTRICTED SHARES).
DATED: January 28, 2003 SIGNED: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
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Exhibit A to Restricted Stock Agreement
"CHANGE OF CONTROL"
The following are definitions of "Change of Control" and of various terms used
in the definition of "Change of Control".
"Change of Control" means the occurrence of any one or more of the following:
(i) Any Person becomes an Acquiring Person, except as the result of (A) any
acquisition of Voting Securities of the Company by the Company or (B) any
acquisition of Voting Securities of the Company directly from the Company
(as authorized by the Board).
(ii) Individuals who constitute the Incumbent Board cease for any reason to
constitute at least a majority of the Board; and for this purpose, any
individual who becomes a member of the Board after the date of this
Agreement whose election, or nomination for election by holders of the
Company's Voting Securities, was approved by the vote of at least a
majority of the individuals then constituting the Incumbent Board shall be
considered a member of the Incumbent Board (except that any such
individual whose initial election as director occurs as the result of an
actual or threatened election contest, within the meaning of Rule 14a-11
under the Exchange Act, or other actual or threatened solicitation of
proxies or consents by or on behalf of a Person other than the Board shall
not be so considered).
(iii) The consummation of a reorganization, merger, share exchange,
consolidation, or sale or disposition of all or substantially all of the
assets of the Company unless, in any case, the Persons who or which
Beneficially Own the Voting Securities of the Company immediately before
that transaction Beneficially Own, directly or indirectly, immediately
after the transaction, at least 75% of the Voting Securities of the
Company or any other corporation or other entity resulting from or
surviving the transaction (including a corporation or other entity which,
as the result of the transaction, owns all or substantially all of Voting
Securities of the Company or all or substantially all of the Company's
assets, either directly or indirectly through one or more subsidiaries) in
substantially the same proportion as their respective ownership of the
Voting Securities of the Company immediately before that transaction.
(iv) The Company's shareholders approve a complete liquidation or dissolution
of the Company.
"Acquiring Person" means any Person (other than an Excluded Person) who or
which, alone or together with all Affiliates and Associates of that Person, is
the Beneficial Owner of 25% or more of the Voting Securities of the Company then
outstanding.
"Affiliate" and "Associate" have the respective meanings ascribed to them in
Rule 12b-2 under the Exchange Act.
A-1
"Beneficial Owner" means beneficial owner as defined in Rule 13d-3 under the
Exchange Act. ("Beneficially Owns" has the correlative meaning.) Any calculation
of the number of Voting Securities outstanding at any particular time, including
for purposes of determining the particular percentage of such outstanding Voting
Securities of which any Person is the Beneficial Owner, shall be made in
accordance with the last sentence of Rule 13d-3(d)(1)(i) under the Exchange Act.
"Board" means the Board of Directors of the Company.
"Company" means Ace Cash Express, Inc., a Texas corporation.
"Exchange Act" means the Securities Exchange Act of 1934, as amended from time
to time.
"Excluded Person" means:
(i) Grantee or any group (within the meaning of Section 13(d)(3) of the
Exchange Act) of which Grantee is a member;
(ii) any Person that controls (as defined in Rule 12b-2 under the Exchange Act)
the Company as of the date of the Agreement or any group of which any such
Person is a member;
(iii) any employee-benefit plan, or related trust, sponsored or maintained by
the Company or any of its subsidiaries, or any trustee or other fiduciary
thereof; or
(iv) any corporation or other entity owned directly or indirectly by the
shareholders of the Company in substantially the same proportions as their
ownership of the Voting Securities of the Company.
"Grantee" means ▇▇▇▇▇ ▇. ▇▇▇▇▇▇.
"Incumbent Board" means the members of the Board on the effective date of the
Agreement (subject, however, to clause (ii) of the definition of "Change of
Control").
"Person" means any individual, firm, corporation, partnership, limited liability
company, trust, or other entity, including any successor (by merger or
otherwise) of such entity.
"Voting Securities" means securities or other interests having by their terms
ordinary voting power to elect members of the board of directors of a
corporation or individuals serving similar functions for a noncorporate entity.
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Exhibit B to Restricted Stock Agreement
ASSIGNMENT SEPARATE FROM CERTIFICATE
FOR VALUE RECEIVED, I, _______________________, hereby sell, assign, and
transfer unto Ace Cash Express, Inc. (the "Company") or ____________________ a
total of ____________________ (________________) shares of the Company's Common
Stock standing in my name in the share transfer records of the Company
represented by Certificate No. ___ delivered herewith and do hereby irrevocably
constitute and appoint _________________________ as attorney-in-fact, with full
power of substitution, to transfer such shares in the share transfer records of
the Company.
-------------------------------------
(Signature)
------------------------------------
(Printed name)
INSTRUCTIONS:
Please do not fill in any blanks other than the signature and name lines. The
purpose of this assignment is to enable the transfer of shares upon forfeiture
and repurchase under the Restricted Stock Agreement, without requiring
additional signatures on the part of Grantee.
B-1
Exhibit C to Restricted Stock Agreement
JOINT ESCROW INSTRUCTIONS
January 28, 2003
P. ▇▇▇▇▇▇ ▇▇▇▇▇▇
Ace Cash Express, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Dear ▇▇▇▇▇▇:
As Escrow Agent for both Ace Cash Express, Inc., a Texas corporation (the
"Company"), and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ("Grantee") of 2,500 restricted shares of Common
Stock, $0.01 par value per share, of the Company (the "Restricted Shares") under
that certain Restricted Stock Agreement between the Company and Grantee dated as
of this date (the "Agreement"), you are hereby authorized and directed to hold
the Restricted Shares, the stock certificate(s) evidencing the Restricted
Shares, and any other property and documents delivered to you pursuant to the
Agreement (all of which being deemed part of the "Restricted Shares" hereunder)
in accordance with the following instructions:
1. In the event any or all of the Restricted Shares are forfeited and to be
repurchased by the Company and/or its assignee(s) under the Agreement, the
Company shall give Grantee and you a written notice of forfeiture and
repurchase which sets forth the number of the Restricted Shares to be
forfeited and repurchased under the Agreement (the "Forfeited Shares"),
the aggregate purchase price for the Forfeited Shares, and the time for
the closing of the repurchase transaction at the principal office of the
Company (the "Notice"). Grantee and the Company hereby irrevocably
authorize and direct you to complete the transaction described in the
Notice in accordance with the terms of the Notice.
2. To complete the transaction described in the Notice, you are directed to
(a) complete, as appropriate, the stock assignment(s) necessary for the
transfer of Forfeited Shares as described in the Notice, and (b) deliver
them, together with the certificate(s) evidencing the Forfeited Shares to
be transferred, to the Company and/or its assignee(s), against the
delivery to you of the aggregate purchase price for the Forfeited Shares.
You are then directed to deliver to Grantee the aggregate purchase price
for the Forfeited Shares and the certificate(s) evidencing any of the
Restricted Shares that are not Forfeited Shares.
3. Grantee irrevocably authorizes the Company to deposit with you any and all
certificates evidencing the Restricted
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Shares, and any additions to and substitutions for the Restricted Shares
as described in the Agreement, to be held by you hereunder. Grantee hereby
irrevocably constitutes and appoints you as his attorney-in-fact and agent
for the term of this escrow to execute with respect to such Restricted
Shares all documents necessary or appropriate to make such Restricted
Shares negotiable and to complete any transaction herein contemplated.
Subject to the provisions of this paragraph 3, Grantee shall be entitled
to exercise all rights and privileges of a shareholder of the Company with
respect to the Restricted Shares while the Restricted Shares are held by
you.
4. Upon written request to you and the Company by Grantee following the
termination or lapse of the Forfeiture Restrictions described in the
Agreement, you shall deliver to Grantee one or more certificates
representing those Restricted Shares as to which the Forfeiture
Restrictions have terminated or lapsed.
5. If, at the time of termination of this escrow (upon the termination or
lapse of the Forfeiture Restrictions regarding all of the Restricted
Shares or upon transfer of all of the Forfeited Shares to the Company
and/or its assignee(s), in accordance with the Agreement), you should have
in your possession any documents, securities, or other property belonging
to Grantee, you shall deliver all of the same to the Grantee and shall be
discharged of all further obligations hereunder.
6. Your duties hereunder may be altered, amended, modified, or revoked only
by a writing signed by all of the parties hereto.
7. You shall be obligated only for the performance of such duties as are
specifically set forth herein and may rely, and shall be protected in
relying or refraining from acting, on any instrument reasonably believed
by you to be genuine and to have been signed or presented by the proper
party or parties. You shall not be personally liable for any act you may
do or omit to do hereunder as Escrow Agent or as attorney-in-fact for
Grantee while acting in good faith, and any act done or omitted by you
pursuant to the advice of your own attorneys shall be conclusive evidence
of such good faith.
8. You are hereby expressly authorized to disregard any and all warnings
given by any of the other parties hereto or by any other person or entity,
excepting only orders or process of courts of law, and are hereby
expressly authorized to comply with and obey orders, judgments, or decrees
of any court. In case you obey or comply with any such order, judgment, or
decree, you shall not be liable to any of the other parties hereto or to
any other person or entity by reason of such compliance, notwithstanding
any such order, judgment, or decree being subsequently reversed, modified,
annulled, set aside, vacated, or found to have been entered without
jurisdiction.
9. You shall not be liable in any respect on account of the identity,
authorities, or rights of the parties executing or delivering, or
purporting to execute or deliver, the Agreement or any documents or papers
deposited or called for hereunder.
10. You shall be entitled to employ such legal counsel and other experts as
you may deem necessary properly to advise you in connection with your
obligations hereunder, may rely
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upon the advice of such counsel, and may pay such counsel reasonable
compensation therefor, for which you will be reimbursed by the Company.
11. Your responsibilities as Escrow Agent hereunder shall terminate if you
shall cease to be an officer or agent of the Company or if you shall
resign by written notice to each other party hereto. In the event of any
such termination, the Company shall appoint a successor Escrow Agent.
12. If you reasonably require other or further instruments in connection with
these Joint Escrow Instructions or any obligations in respect hereto, the
necessary party or parties hereto shall join in furnishing such
instruments.
13. It is understood and agreed that should any dispute arise with respect to
the delivery and/or ownership or right of possession of the Restricted
Shares or any other property held by you hereunder, you are authorized and
directed to retain in your possession, without liability to anyone, all or
any part of such property until such dispute shall have been settled
either by mutual written agreement of the parties concerned or by a final
order, decree, or judgment of a court of competent jurisdiction after the
time for appeal has expired and no appeal has been perfected, but you
shall be under no duty whatsoever to institute or defend any such
proceedings.
14. Any notice required or permitted hereunder shall be given in writing and
shall be given by personal or courier delivery or deposit in the United
States mail, by registered or certified mail with postage and fees
prepaid, addressed to each of the other parties thereunto entitled at the
following addresses or at such other addresses as a party may designate by
advance written notice to each of the other parties hereto:
If to the Company: Ace Cash Express, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
If to Grantee: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
c/o ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
If to the Escrow Agent: P. ▇▇▇▇▇▇ ▇▇▇▇▇▇
c/o ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Any notice so given by personal or courier delivery shall be deemed to
have been duly given upon delivery, and any notice so given by United
States mail shall be deemed to
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have been duly given upon the earlier of receipt by the addressee or the
third business day after deposit in the mail.
15. By signing these Joint Escrow Instructions, you become a party hereto only
for the purpose of the Joint Escrow Instructions; you do not become a
party to the Agreement.
16. This instrument shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and permitted assigns.
17. These Joint Escrow Instructions shall be governed by, and construed and
enforced in accordance with, the laws of the State of Texas.
Very truly yours,
ACE CASH EXPRESS, INC.
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
--------------------
▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, President & COO
GRANTEE:
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
ESCROW AGENT:
/s/ P. ▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------
P. ▇▇▇▇▇▇ ▇▇▇▇▇▇, Corporate Attorney
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