Exhibit 10.1
RESTRICTED STOCK AGREEMENT
This Restricted Stock Agreement ("Agreement") made as of October 30,
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 Restricted Stock. The Company hereby agrees to
issue to Grantee, and Grantee hereby agrees to purchase, 5,000 shares (the
"Restricted Shares") of Common Stock, at a purchase price of $0.01 per share
(the "Purchase Price Per Share"), in accordance with this Agreement and as a
Restricted Stock Award 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 key employees. This Agreement is a Restricted Stock Agreement
under the Plan, and unless otherwise defined in this Agreement, the capitalized
terms used in this Agreement have the respective meanings assigned to them in
the Plan. 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 (as defined
below) of Grantee's employment as a key employee of the Company, 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 Unvested Restricted Shares
(as defined below) at the original Purchase Price Per Share (the "Repurchase
Price"). The "Cessation" of Grantee's employment with the Company is any
cessation of Grantee's full-time employment with the Company and its
Subsidiaries for any reason or under any circumstances, other than because of
Grantee's death or Grantee's disability (within the meaning of Section 22(e)(3)
of the Internal Revenue Code) as determined by the Committee ("Disability");
Grantee's employment with the Company shall not be considered to have ceased for
this purpose because of any (a) transfer of employment between or among the
Company or any of its Subsidiaries, or (b) any sick leave, military leave, or
any other authorized temporary personal leave of absence. "Unvested Restricted
Shares" are the Restricted Shares that are subject to Forfeiture Restrictions
(i.e., Restricted Shares that have not been released from the Forfeiture
Repurchase Option). In addition, if Grantee breaches any of the terms and
conditions of this Agreement or the Plan, or any rules and regulations of the
Committee for this Agreement or the
Plan, the Company shall have a Forfeiture Repurchase Option to the same extent
as if there had been a Cessation of Grantee's employment by the Company, except
that, for this purpose, the "Termination Date" shall be the date of such breach,
and the "Forfeiture Repurchase Period" shall be a period of ninety (90) days
from the date of the Committee's discovery of such breach. 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 Unvested 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 Unvested
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 Unvested 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 Unvested 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. Grantee, by his acceptance of the Restricted Stock
Award granted under this Agreement, irrevocably grants to the Company a power of
attorney to transfer any and all Unvested Restricted Shares that are forfeited
and agrees to execute any documents requested by the Company in connection with
such forfeiture and transfer. Grantee shall have no further right to or interest
in any Unvested Restricted Shares that are so forfeited and transferred. The
Parties expressly agree that these provisions governing the forfeiture and
repurchase of the Unvested Restricted Shares shall be specifically enforceable
by the Company in a court of equity or law.
3. Lapse of Forfeiture Restrictions. Upon the termination or
lapse of Forfeiture Restrictions regarding any or all of the Restricted Shares
(those Restricted Shares no longer subject to Forfeiture Restrictions being
"Vested Restricted Shares"), one or more stock certificates representing the
Vested 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 or lapse, and certain or all (as described below)
of the Unvested Restricted Shares shall become Vested Restricted Shares, if
there has been no Cessation of Grantee's employment with the Company and no
breach by Grantee as described in Section 2 before the date of vesting, as
follows:
(a) A number of Unvested Restricted Shares equal to 20% of the
total number of Restricted Shares shall become Vested Restricted Shares as of
August 5, 2006.
(b) A number of Unvested Restricted Shares equal to an additional
30% of the total number of Restricted Shares shall become Vested Restricted
Shares as of August 5, 2007.
(c) All of the Unvested Restricted Shares shall become Vested
Restricted Shares as of August 5, 2008.
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(d) All of the Unvested Restricted Shares shall become Vested
Restricted Shares upon Grantee's death or Disability.
(e) All of the Unvested Restricted Shares shall become Vested
Restricted Shares upon a Change of Control, as defined in Exhibit A attached
hereto.
If the installment of vesting of the Restricted Shares set forth in subsection
(a) or subsection (b) of this Section 3 would result in the vesting of a
fractional Restricted Share, such installment will result in the vesting of the
next higher Restricted Share, and the final installment (set forth in subsection
(c) of this Section 3) will result in the vesting of the balance of the
Restricted Shares. As permitted by clause (ii) of the second paragraph of
Section 14 of the Plan, subsection (e) of this Section 3 is a partial exception
to the general rule stated in that clause (ii). Subsection (e) 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 addition, any or all of the Unvested Restricted Shares shall vest upon a
decision by the Committee, in its sole discretion and as of a date determined by
the Committee, to vest those Unvested Restricted Shares.
4. Representations of Grantee. Grantee represents and warrants to
the Company as follows:
(a) Grantee has received a copy of the Plan and has read and
become familiar with the terms and conditions of the Plan and agrees to be
bound, and to abide, by the Plan.
(b) Grantee has reviewed this Agreement, has had an opportunity to
obtain the advice of counsel before executing this Agreement, and fully
understands all of the terms and conditions of this Agreement and the Plan.
(c) Grantee hereby accepts the Restricted Stock Award granted by
this Agreement subject to all of the terms and conditions of this Agreement and
the Plan.
(d) Grantee is fully aware of the lack of liquidity of the
Restricted Shares (e.g., because of the restrictions on transferability of the
Unvested Restricted Shares, Grantee may not be able to sell or dispose of the
Unvested Restricted Shares or use them as collateral for loans).
5. Certain Restrictions on Transfer. Grantee may not sell,
transfer, pledge, exchange, hypothecate, or otherwise dispose of any or all of
the Unvested Restricted Shares, or any rights thereto or interests therein, by
operation of law or otherwise. Any transfer in violation of this Section 5 shall
be void and without any force or effect and shall constitute a breach of the
terms and conditions of this Agreement and the Plan. Grantee also understands
that the Company is under no obligation to register, under any applicable
securities laws, any resale of any of the Restricted Shares that become Vested
Restricted Shares, and therefore transferable, upon the termination or lapse of
Forfeiture Restrictions and that an exemption from such registration
requirements may not be available or may not permit Grantee to resell or
transfer any of such Vested Restricted Shares in the amounts or at the times
proposed by Grantee.
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6. Dividend and Voting Rights. Subject to this Agreement, Grantee
shall have all of the rights of a shareholder with respect to the Restricted
Shares, including the Unvested Restricted Shares while they are held in escrow,
including the right to vote the Restricted Shares and to receive any and all
dividends and other distributions made with respect to the Restricted Shares.
Without limiting the preceding sentence, Grantee shall be entitled to receive
any cash dividends or other cash distributions paid or made by the Company with
respect to the Unvested Restricted Shares, without deposit into escrow, and any
other distributions of property with respect to the Unvested Restricted Shares
shall be deposited into escrow in accordance with Section 8(b). Upon any
forfeiture of Unvested Restricted Shares, Grantee shall have no further rights
with respect to those Unvested Restricted Shares, but the forfeiture of Unvested
Restricted Shares shall not invalidate any votes or consents made or executed by
Grantee with respect to those Unvested Restricted Shares before their forfeiture
or create any obligation to repay any cash dividend or other cash distribution
received with respect to those Unvested Restricted Shares before their
forfeiture.
7. Escrow of Restricted Shares.
(a) To ensure the availability for delivery of Unvested 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 Unvested Restricted Shares, together with corresponding stock
assignment(s), in the form attached hereto as Exhibit B, duly endorsed in blank.
The Unvested Restricted Shares and stock assignment(s) shall be held by the
Escrow Holder, pursuant to the Joint Escrow Instructions of the Company and
Grantee attached hereto as Exhibit C, until the Forfeiture Restrictions
terminate or lapse regarding those Unvested Restricted Shares or until those
Unvested Restricted Shares are forfeited and repurchased in accordance with
Section 2.
(b) The Escrow Holder shall not be liable for any act that 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 of the
Unvested 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 those Unvested Restricted Shares
to the Company and/or its assignee(s).
(d) Upon the termination or lapse of the Forfeiture Restrictions
regarding all or any of the Unvested Restricted Shares and the request of
Grantee, the Escrow Holder shall promptly deliver to Grantee the certificate(s)
representing those Vested Restricted Shares.
8. Capital Adjustments and Distributions.
(a) The number of the Unvested Restricted Shares and the
Repurchase Price of each of the Unvested Restricted Shares shall be adjusted in
accordance with the provisions of the first paragraph of Section 14 of the Plan.
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(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, or
exchanged for, the Unvested Restricted Shares shall immediately be subject to
the Forfeiture Restrictions, the forfeiture and repurchase provisions of Section
2, and the escrow requirement of Section 7, all to the same extent as the
Unvested Restricted Shares on or with respect to which such distribution or
exchange was made. Appropriate adjustments, as determined by the Committee, to
reflect the distribution or exchange of such securities or other property shall
be made to the number of the Unvested Restricted Shares and to the Repurchase
Price of each of the Unvested Restricted Shares in order to reflect any such
event; except that the aggregate Repurchase Price for all of the Unvested
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 this Agreement as the Committee determines (in good faith) to be advisable.
The Committee may rescind and amend its rules and 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 Parties.
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 Unvested 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 Unvested 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 Unvested Restricted Shares have been
purported to be so transferred.
12. Legend. If the Company so determines, the share certificate(s)
representing the Unvested Restricted Shares may 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.
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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
(including any amendments and successor provisions to section and any
regulations promulgated under such section), 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 terminate or lapse. In this context, "restriction" includes
the Forfeiture Restrictions and the right of the Company to repurchase Unvested
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 Internal Revenue 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. Grantee also acknowledges and agrees that the
transactions contemplated by this Agreement may cause the Company to have
reporting and tax-withholding obligations under applicable law and that the
Company may withhold or collect from Grantee amounts necessary to satisfy those
tax-withholding obligations.
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; Waiver. 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. Any provision of this Agreement for the benefit of the Company may be
waived by the Committee or the Board. Unless otherwise expressed in the waiver,
such a waiver in one instance or with respect to one provision of this Agreement
shall not be deemed to be a waiver in any other instance or with respect to any
other provision of this Agreement.
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
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regarding all of the Restricted Shares 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 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.
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ACE CASH EXPRESS, INC.
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
--------------------
▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, President and
Chief Operating Officer
Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
GRANTEE ACKNOWLEDGES AND AGREES THAT THE FORFEITURE RESTRICTIONS ON THE
RESTRICTED SHARES SHALL TERMINATE OR LAPSE, IF AT ALL, ONLY AS EXPRESSLY STATED
IN THIS AGREEMENT (NOT THROUGH THE GRANT OF THE RESTRICTED STOCK AWARD OR THE
ISSUANCE OF THE RESTRICTED SHARES). GRANTEE FURTHER ACKNOWLEDGES AND AGREES THAT
NOTHING IN THIS AGREEMENT OR THE PLAN SHALL CONFER UPON GRANTEE ANY RIGHT WITH
RESPECT TO CONTINUATION OF GRANTEE'S EMPLOYMENT OR TO ANY FUTURE AWARDS.
DATED: October 30, 2003 SIGNED: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
8
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.
A-2
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.
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------
(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
October 30, 2003
P. ▇▇▇▇▇▇ ▇▇▇▇▇▇
Ace Cash Express, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Dear ▇▇▇▇▇▇:
As Escrow Agent for both Ace Cash Express, Inc., a Texas corporation (the
"Company"), and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ("Grantee") of 5,000 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 shall be 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 and any other property to which Grantee is entitled
under the Agreement.
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3. Grantee irrevocably authorizes the Company to deposit with you any and
all certificates evidencing the Restricted Shares and corresponding
stock assignments, 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 under 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 and any corresponding property
to which Grantee is then entitled under the Agreement.
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 when acting 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.
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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 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, employee, 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 ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
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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 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/ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, President and
Chief Operating Officer
GRANTEE:
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
ESCROW AGENT:
/s/ P. ▇▇▇▇▇▇ ▇▇▇▇▇▇
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P. ▇▇▇▇▇▇ ▇▇▇▇▇▇, Corporate Attorney
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