Restricted Stock Agreement - Ace Cash Express Inc. and Jay B. Shipowitz
RESTRICTED STOCK AGREEMENT
This Restricted Stock Agreement ("Agreement") dated to be effective as of
July 1, 2004 (the "Effective Date"), is by and between Ace Cash Express, Inc., a
Texas corporation (the "Company"), and Jay B. Shipowitz ("Grantee").
WHEREAS, the Company and Grantee (the "Parties") are entering into an
Executive Employment Agreement dated as of the Effective Date (the "Employment
Agreement") that sets forth the terms of Grantee's employment with the Company;
and
WHEREAS, the Employment Agreement contemplates (among other things) the
Parties' entering into this Agreement as part of Grantee's employment
compensation thereunder;
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, 50,000 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 Forfeiture Cessation (as defined
below) of Grantee's employment, the Company shall have, on the date that
Grantee's employment ceases or terminates (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
"Forfeiture Cessation" of Grantee's employment with the Company is any cessation
or termination of Grantee's employment under the Employment Agreement other than
a Vesting Cessation; and a "Vesting Cessation" is the cessation or termination
of Grantee's employment under the Employment Agreement (i) by the Company as a
termination without Cause or because of Grantee's Disability, in each case as
defined in and under the terms of the Employment Agreement, or (ii) because of
Executive's death. "Unvested Restricted Shares" are the Restricted Shares that
are subject to Forfeiture Restrictions (i.e., Restricted Shares that have not
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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 Forfeiture Cessation, 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") and upon the satisfaction of the Withholding Liability (as
defined below) corresponding to the Vested Restricted Shares in accordance with
Section 13(a), 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 Forfeiture Cessation 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 15% of the total
number of Restricted Shares shall become Vested Restricted Shares as of the date
that is one month after the Effective Date.
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(b) A number of Unvested Restricted Shares equal to an additional 17% of
the total number of Restricted Shares shall become Vested Restricted Shares as
of July 1, 2005.
(c) A number of Unvested Restricted Shares equal to an additional 17% of
the total number of Restricted Shares shall become Vested Restricted Shares as
of July 1, 2006.
(d) A number of Unvested Restricted Shares equal to an additional 17% of
the total number of Restricted Shares shall become Vested Restricted Shares as
of July 1, 2007.
(e) A number of Unvested Restricted Shares equal to an additional 17% of
the total number of Restricted Shares shall become Vested Restricted Shares as
of July 1, 2008.
(f) All of the Unvested Restricted Shares shall become Vested Restricted
Shares as of July 1, 2009.
If the installment of vesting of the Restricted Shares set forth in any of
subsections (a) through (e) 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
(e) of this Section 3) will result in the vesting of the balance of the
Restricted Shares.
In addition, (i) all of the Unvested Restricted Shares shall become Vested
Restricted Shares upon (A) a "Change of Control," as defined in Exhibit A
attached hereto, or (B) a Vesting Cessation, subject to the terms of the
Employment Agreement, and (ii) any or all of the Unvested Restricted Shares
shall become Vested Restricted Shares 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. As permitted by clause (ii) of the second paragraph
of Section 14 of the Plan, the immediately preceding clause (i)(A) of this
Section 3 is a partial exception to the general rule stated in that clause (ii)
of the second paragraph of Section 14 of the Plan. The immediately preceding
clause (i)(A) 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.
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.
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(d) Grantee is fully aware of the lack of liquidity of the Restricted
Shares -- e.g., because of the restrictions on transferability of the Restricted
Shares held by the Escrow Holder (as defined below), Grantee may not be able to
sell or dispose of the Restricted Shares or use them as collateral for loans.
5. Certain Restrictions on Transfer. Except as provided in Section 2,
Grantee may not sell, transfer, pledge, exchange, hypothecate, or otherwise
dispose of (whether voluntarily, by operation of law, or otherwise) any or all
of the Unvested Restricted Shares, or any rights thereto or interests therein,
or any or all of the Vested Restricted Shares held by the Escrow Holder, or any
rights thereto or interests therein. 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 delivered to Grantee 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.
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.
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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 and to ensure
satisfaction of the Withholding Liability regarding Vested Restricted Shares in
accordance with Section 13(a), 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
either (i) those Unvested Restricted Shares are forfeited and repurchased in
accordance with Section 2 or (ii) the Forfeiture Restrictions terminate or lapse
regarding those Unvested Restricted Shares, which thereby become Vested
Restricted Shares, and the Withholding Liability regarding those Vested
Restricted Shares is satisfied.
(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 upon the Company's
acknowledgment that the corresponding Withholding Liability is satisfied, 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 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.
(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, (i) 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, and (ii) the Vested Restricted Shares that are held by the Escrow Holder
shall immediately be subject to the escrow requirement of Section 7, to the same
extent as the Vested Restricted Shares on or with respect to which such
distribution or exchange was made. Appropriate adjustments, as determined by the
Committee,
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to reflect the distribution or exchange 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 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 or effectiveness 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; the Parties acknowledge and agree
that their respective rights and obligations regarding Grantee's employment or
the termination thereof are governed by the Employment Agreement.
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, or any Vested Restricted Shares held
by the Escrow Holder pending satisfaction of the corresponding Withholding
Liability, 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, and any Vested Restricted Shares
held by the Escrow Holder pending satisfaction of the corresponding Withholding
Liability, 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. NONE OF THE
SHARES MAY BE TRANSFERRED EXCEPT AS SET FORTH IN THAT CERTAIN RESTRICTED STOCK
AGREEMENT BETWEEN THE COMPANY AND THE
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ORIGINAL HOLDER OF THESE SHARES, A COPY OF WHICH MAY BE OBTAINED AT THE
PRINCIPAL OFFICE OF THE COMPANY.
13. Tax Matters.
(a) If the Company becomes obligated to withhold an amount on account of
any federal, state, or local tax imposed because of the grant or sale of the
Restricted Shares to Grantee under this Agreement or the termination or lapse of
the Forfeiture Restrictions regarding any of the Unvested Restricted Shares
under this Agreement, including any federal, state, or other income tax, any
FICA, or any disability insurance or employment tax, then Grantee shall pay that
amount (the "Withholding Liability") to the Company on or promptly after the
date of the event that imposes the obligation to withhold on the Company.
Payment of the Withholding Liability to the Company shall be made in cash, by
certified or cashier's check payable to the Company, or in any other form
acceptable to the Committee. Grantee hereby acknowledges and agrees that the
Company may withhold or offset the Withholding Liability from any compensation
or other amounts payable to Grantee from the Company if Grantee does not pay the
Withholding Liability to the Company, and Grantee agrees that the Company's
withholding and offset of any such amount, and the payment of it to the relevant
taxing authority or authorities, shall constitute full satisfaction of the
Company's obligation to pay any such compensation or other amounts to Grantee.
Further, unless the Committee otherwise determines, the Company's obligation to
deliver any Vested Restricted Shares, or any stock certificate or certificates
representing Vested Restricted Shares, to Grantee shall be subject to, and
conditioned upon, payment of the Withholding Liability. Accordingly, the Company
shall be entitled to cause the Escrow Holder to continue to hold the stock
certificate or certificates representing any Vested Restricted Shares until the
Withholding Liability corresponding to those Vested Restricted Shares has been
or is satisfied. The Company shall also be entitled to cause a sale or sales of
Vested Restricted Shares on behalf of Grantee pursuant to which all or a portion
of the proceeds are paid to the Company to satisfy the Withholding Liability and
all remaining proceeds (if any) are delivered to Grantee, and Grantee agrees to
take all such action as may be necessary or appropriate to effect such sales.
(b) 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.
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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; 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 (i) the termination or
lapse of the Forfeiture Restrictions, and the satisfaction of all of the
corresponding Withholding Liability, regarding all of the Restricted Shares or
(ii) 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.
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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.
ACE CASH EXPRESS, INC.
By: /s/ WALTER E. EVANS
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Address: 1231 Greenway Drive
Suite 600
Irving, Texas 75038
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: August 23, 2004 SIGNED: /s/ JAY B. SHIPOWITZ
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JAY B. SHIPOWITZ
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.
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"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 Jay B. Shipowitz.
"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 printed 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.
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Exhibit C to Restricted Stock Agreement
JOINT ESCROW INSTRUCTIONS
August 23, 2004
P. Sandra Landau
Ace Cash Express, Inc.
1231 Greenway Drive, Suite 600
Irving, TX 75038
Dear Sandra:
As Escrow Agent for both Ace Cash Express, Inc., a Texas corporation (the
"Company"), and Jay B. Shipowitz ("Grantee") of 50,000 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 (i) the aggregate purchase
price for the Forfeited Shares, (ii) the certificate(s) evidencing any of
the Restricted Shares that are not Forfeited Shares ("Vested Restricted
Shares") as to which the Company has acknowledged that the Withholding
Liability (as defined in the Agreement) has been or is satisfied, and
(iii) any other property to which Grantee is entitled under the Agreement.
Unless otherwise then instructed by the Company, you shall continue to
hold any then Vested Restricted Shares
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as to which the Company has not acknowledged to you that the Withholding
Liability has been or is satisfied.
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 the termination or lapse of the Forfeiture Restrictions regarding any
or all of the Restricted Shares under the Agreement, such that they become
Vested Restricted Shares, and upon the Company's acknowledgment to you
that the corresponding Withholding Liability has been or is satisfied, you
shall deliver to Grantee one or more certificates representing those
Vested Restricted Shares and any corresponding property to which Grantee
is then entitled under the Agreement. Notwithstanding the termination or
lapse of the Forfeiture Restrictions regarding any or all of the
Restricted Shares under the Agreement, such that they become Vested
Restricted Shares, you shall continue to hold the certificate or
certificates representing those Vested Restricted Shares, and any
corresponding property, hereunder until receipt of the Company's
acknowledgment that the Withholding Liability corresponding to those
Vested Restricted Shares has been or is satisfied (which, the Company and
Grantee have agreed, may be effected at the Company's instruction through
a sale or sales of Vested Restricted Shares on behalf of Grantee pursuant
to which all or a portion of the proceeds are paid to the Company to
satisfy the Withholding Liability and all remaining proceeds, if any, are
delivered to Grantee).
5. If, at the time of termination of this escrow (i.e., upon either (a) the
termination or lapse of the Forfeiture Restrictions regarding all of the
Restricted Shares and the satisfaction of all of the corresponding
Withholding Liability, or (b) 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
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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 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.
1231 Greenway Drive
Suite 600
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Irving, Texas 75038
Attention:______________________
If to Grantee: Jay B. Shipowitz
________________________
________________________
________________________
If to the Escrow Agent: P. Sandra Landau
c/o 1231 Greenway Drive
Suite 600
Irving, Texas 75038
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/ WALTER E. EVANS
---------------------
GRANTEE:
/s/ JAY B. SHIPOWITZ
---------------------
JAY B. SHIPOWITZ
ESCROW AGENT:
/s/ P. SANDRA LANDAU
--------------------
P. SANDRA LANDAU
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