RESTRICTED STOCK AGREEMENT (PERFORMANCE AWARD)
Exhibit 10.2
GENERAL FORM
RESTRICTED STOCK AGREEMENT
(PERFORMANCE AWARD)
(PERFORMANCE AWARD)
This Restricted Stock Agreement (“Agreement”) dated to be effective ___, 200___
(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, ___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.
(a) On the date of any Cessation (as defined below) of Grantee’s employment (the
“Termination Date”) before the Forfeiture Restrictions lapse with respect to any of the
Restricted Shares in accordance with Section 3, all of the Restricted Shares that are then subject
to the Forfeiture Restrictions (the “Unvested Restricted Shares”) shall then automatically
be forfeited by Grantee and returned and delivered to the Company without any obligation of the
Company to pay any amount to Grantee or to any other person or entity and without any further
action by Grantee. 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, including 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, except
for any (i) transfer of employment between or among the Company or any of its Subsidiaries, or (ii)
any sick leave, military leave, or any other temporary personal leave of absence authorized by the
Company.
(b) 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, all of the Unvested Restricted Shares as of the date of such breach shall then automatically
be forfeited by Grantee and returned and delivered to the Company without any obligation of the
Company to pay any amount to Grantee or to any other person or entity and without any further
action by Grantee.
(c) In addition, if [all of] the performance goal[s] set forth in Section 3 [is/are]
not satisfied by ___[Designate or describe time, event, or condition for
performance]___, all of the Unvested Restricted Shares shall then automatically be
forfeited by Grantee and returned and delivered to the Company without any obligation of the
Company to pay any amount to Grantee or to any other person or entity and without any further
action by Grantee.
(d) 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
1
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 transfer 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 Cessation of Grantee’s employment with the Company and no
breach by Grantee as described in Section 2 before the attainment of the following performance
goal[s]:
[Describe performance goal(s) and state related terms and provisions]
Restricted Shares that are not released from the Forfeiture Restrictions because [all of] the
performance goal[s] [was/were] not attained as set forth in Section 2(c) shall automatically be
forfeited and promptly delivered to the Company without any obligation of the Company to pay any
amount to Grantee or to any other person or entity, as provided for in Section 2(c).
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 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.
2
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 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 A,
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 B, until either (i) those Unvested Restricted Shares are forfeited 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 of all or any of the Unvested Restricted Shares to 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.
(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 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 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, to reflect the distribution or
exchange of such securities or other property shall be made to the number of the Restricted Shares
in order to reflect any such event.
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
3
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 (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, 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 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 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.
4
(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 under 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.
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 first to occur of: (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, 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.
5
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: | ||||
Address: | 0000 Xxxxxxxx Xxxxx | |||
Xxxxx 000 | ||||
Xxxxxx, Xxxxx 00000 | ||||
6
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: _________, 200___
|
SIGNED:__________________ |
Address: | ||||
7
Exhibit A 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 under the Restricted Stock
Agreement, without requiring additional signatures on the part of Grantee.
A-1
Exhibit B to Restricted Stock Agreement
JOINT ESCROW INSTRUCTIONS
_________________, 200___
________________________________
Ace Cash Express, Inc.
0000 Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxxx, XX 00000
0000 Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxxx, XX 00000
Dear ____________:
As Escrow Agent for both Ace Cash Express, Inc., a Texas corporation (the “Company”), and
___(“Grantee”) of ___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 under the Agreement, the Company shall give Grantee and you a written notice of forfeiture (the “Notice”) which sets forth the number of the Restricted Shares to be forfeited under the Agreement (the “Forfeited Shares”). 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 forfeiture of the Shares 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. You are then directed to deliver to Grantee (i) 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 (ii) 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 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 |
B-1
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, 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. | |
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: |
B-2
If to the Company: |
Ace Cash Express, Inc. 0000 Xxxxxxxx Xxxxx Xxxxx 000 Xxxxxx, Xxxxx 00000 Attention: Xxx X. Xxxxxxxxx |
|
If to Grantee: |
||
If to the Escrow Agent:
|
Xxxxx 000 Xxxxxx, Xxxxx 00000 |
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:
|
___________________________________ |
||
GRANTEE: |
|||
___________________________________ |
|||
ESCROW AGENT: |
|||
_______________________________ |
|||
___________________, ____________________ |
B-3