ChangeInControl Executive Severance Agreement.docx

1、ChangeInControl Executive Severance Agreement CHANGE-IN-CONTROL EXECUTIVE SEVERANCE AGREEMENTThis Change-in-Control Executive Severance Agreement (this Agreement), datedand effective July 1, 2004, is between Ace Cash Express, Inc., a Texascorporation (the Company), and Jay B. Shipowitz (the Executiv

2、e). Statement of PurposeThe Company desires, for its continued success, to have the benefit of servicesof experienced management personnel like the Executive. The Board of Directorsof the Company therefore believes that it is in the best interest of the Companythat, in the event of any prospective c

3、hange in control of the Company, theExecutive be reasonably secure in his employment and position with the Company,so that the Executive can exercise independent judgment as to the best interestof the Company and its shareholders, without distraction by any personaluncertainties or risks regarding t

4、he Executives continued employment with theCompany created by the possibility of a change in control of the Company.Therefore, the Company and the Executive entered into a Change-in-ControlExecutive Severance Agreement dated August 20, 1998 (the Previous SeveranceAgreement), to assure severance bene

5、fits to the Executive in connection withcertain terminations of employment upon or after a change in control of theCompany, and they now wish to amend and supersede the Previous SeveranceAgreement (as previously amended) with this Agreement to effect the samepurpose. AgreementIn consideration of the

6、 statements made in the Statement of Purpose and themutual agreements set forth below, the Company and the Executive agree asfollows:1. Definitions and Interpretation. Various terms used in this Agreement are defined in Exhibit A; each of the defined terms used in this Agreement begins with a capita

7、l letter. Various interpretative matters for this Agreement are also set forth in Exhibit A. Exhibit A is an integral part of this Agreement and is incorporated in this Agreement by reference.2. Term of Agreement. This Agreement will continue in effect until the earlier of: (a) The termination or ce

8、ssation of the Executives employment with the Company under the Employment Agreement, or the termination of the Employment Agreement, before a Change in Control. (b) The Companys performance of all of its obligations, and the Executives receipt of all of the payments and benefits to which he is enti

9、tled, under this Agreement after a Severance Payment Event.3. Severance Benefits. Upon a Severance Payment Event, in addition to any Other severance or employment-termination compensation or benefits to which the Executive may be entitled from the Company or any Subsidiary under the terms of any Pla

10、n of which the Executive was a participant or a beneficiary immediately before the Severance Payment Event, the Company shall: (a) Pay the Executive in cash, within five Business Days after the Severance Payment Event, all of his Base Salary and all other earned but unpaid cash compensation or entit

11、lements due to the Executive through (and including) the date of the Severance Payment Event, including unused earned and accrued vacation pay and unreimbursed reimbursable business expenses. (b) Make the Severance Payment in cash within five Business Days after the Severance Payment Event. (c) Prov

12、ide or arrange to provide the Executive (whether or not under any Welfare Benefit Plan then maintained), at the Companys sole expense and for the Benefit Continuation Period, Welfare Benefits that are substantially the same the Welfare Benefits provided to the Executive (and the Executives dependent

13、s and beneficiaries) immediately before the Severance Payment Event, except that the Welfare Benefits to which the Executive is entitled under this subsection (c) will be subject to the Executives compliance with Section 4 and will be reduced to the extent that comparable welfare benefits are receiv

14、ed by the Executive from an employer other than the Company or any Subsidiary during the Benefit Continuation Period. (The fact that the cost of the participation by the Executive, or the Executives dependents or beneficiaries, in any Welfare Benefit Plan was paid indirectly by the Company, as a rei

15、mbursement or a credit to the Executive, before the Severance Payment Event does not mean that the corresponding Welfare Benefits were not provided to the Executive by the Company for the purpose of this subsection (c).) In addition, each Stock Award outstanding immediately before the Severance Paym

16、ent Event and not yet exercised or forfeited (as the case may be) will accelerate and become fully vested, exercisable, or nonforfeitable upon the Severance Payment Event, as though all requisite time had passed to vest the Stock Award or cause it to become exercisable or nonforfeitable.4. Nondisclo

17、sure and Noncompetition. As an inducement to the Company to enter into this Agreement, the Executive represents to and covenants with or in favor of the Company as follows: (a) The Executive has acquired and will acquire during his employment with the Company knowledge or awareness of various Trade

18、Secrets. All of the Trade Secrets are valuable, special, and unique assets of the Company, and the disclosure of any of them, or their use in any manner, other than on behalf of the Company would cause substantial injury, loss of profits, and loss of goodwill to the Company. (b) During his employmen

19、t with the Company and at all times thereafter, the Executive shall not, directly or indirectly, disclose or disseminate any Trade Secret to any other Person or lecture upon, publish articles concerning, or otherwise use or employ any Trade Secret, except (in any case) to the extent required in the

20、course of his employment with the Company or by applicable law, rule, or regulation (including legal process). In addition, all Trade Secrets and materials containing Trade Secrets prepared or compiled by the Executive or furnished or made available to him during his employment with the Company are

21、the sole and exclusive property of the Company, and none of those Trade Secrets or materials containing Trade Secrets may be retained by the Executive upon or following any termination of his employment with the Company. (c) If the Executives employment with the Company terminates (other than becaus

22、e of the Executives death or Disability) upon or before the termination of this Agreement, the Executive shall not, at any time during the first year after that termination of employment anywhere in the Restricted Territory, directly or indirectly engage in any activity which, or any activity for an

23、y enterprise or entity a material part of the business of which, is competitive with the business conducted, or proposed during his employment with the Company to be conducted, by the Company. The activity prohibited by the preceding sentence includes any kind of ownership (other than ownership of s

24、ecurities of a publicly held entity of which the Executive owns less than 1% of a class of outstanding securities) in or of, or acting as a director, officer, agent, employee, or consultant of or for, any enterprise or entity referred to in the preceding sentence. (d) The Executive acknowledges and

25、agrees that the restrictions in this Section 4 are reasonable and not unduly burdensome to him under the circumstances. (e) The Executives compliance with this Section 4 and with the post-employment restrictive covenants in the Employment Agreement is a condition to the Companys obligation to contin

26、ue to provide Welfare Benefits to the Executive under subsection (c) of Section 3 and to make one or more Gross-Up Payments to the Executive under Section 5; the Company may refuse to continue providing those Welfare Benefits or to make all or any Gross-Up Payment if there is any such noncompliance,

27、 as reasonably determined by the Board. For the purpose of this Agreement only, the Company shall have the burden of proof regarding any question of the Executives compliance or noncompliance with this Section 4 or to make all or any Gross-Up Payment.5. Excise Taxes. (a) If all or any portion of the

28、 Total Severance Benefits, determined without regard to any additional payments required under this Section 5 (a Payment), would be subject to the Excise Tax, then the Executive shall be entitled to receive an additional payment (Gross-Up Payment) in an amount such that after payment by the Executiv

29、e of all taxes (including any interest or penalties imposed with respect to such taxes), including any income taxes (and any interest and penalties imposed with respect thereto) and Excise Tax, imposed upon the Gross-Up Payment, the Executive retains an amount of the Gross-Up Payment equal to the Ex

30、cise Tax imposed upon the Payment, multiplied by the percentage set forth below corresponding to the Per Share Change-in-ControlPrice: Per Share Change-in-Control Price Percentage- - Less than $33 0%$33 to less than $39 25%$39 to less than $45 50%$45 to less than $51 75%$51 or more 100% (b) Subject

31、to subsection (c) of this Section 5, all determinations required to be made under this Section 5, including whether and when a Gross-Up Payment is required, the amount of any Gross-Up Payment, and the assumptions to be used in arriving at such determination, shall be made by the Accounting Firm, whi

32、ch shall be retained to provide detailed supporting calculations to the Parties within 15 Business Days of the Accounting Firms receipt of written notice from the Company or the Executive that there has been a Payment or such earlier time as is requested by the Company. All fees and expenses of the Accoun