As filed with the Securities and Exchange Commission on August 31, 1998
Registration No. 333-
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
------
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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ACE CASH EXPRESS, INC.
(Exact name of registrant as specified in its charter)
TEXAS 75-2142963
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1231 GREENWAY DRIVE, SUITE 800
IRVING, TEXAS 75038
(972) 550-5000
(Address of registrant's principal executive offices)
ACE CASH EXPRESS, INC.
1997 STOCK OPTION PLAN
(Full Title of Plan)
------
Donald H. Neustadt
President and Chief Executive Officer
Ace Cash Express, Inc.
1231 Greenway Drive, Suite 800
Irving, Texas 75038
(972) 550-5000
(Name and address, including zip code, and telephone number,
including area code, of registrant's agent for service)
Copy to: Richard A. Tulli, Esq.
Gardere & Wynne, L.L.P
1601 Elm Street, Suite 3000
Dallas, Texas 75201
(214) 999-3000
CALCULATION OF REGISTRATION FEE
===============================================================================================
Title of each class Proposed Proposed Amount of
of securities to be Amount to be maximum maximum registration fee
registered registered (1) offering price per aggregate offering (2)
- -----------------------------------------------------------------------------------------------
Common Stock,
$0.01 par value 900,000 shs. $15.07 $13,563,000.00 $4,001.08
===============================================================================================
(1) Consists of shares of Common Stock that may become issuable under the
Registrant's 1997 Stock Option Plan (the "Plan") described herein. There are
also registered hereby such indeterminate number of shares as may become
issuable by reason of the adjustment provisions of the Plan.
(2) Estimated solely for calculating the registration fee pursuant to Rule
457(h), based on the average of the high and low prices for the Common Stock on
August 26, 1998, as quoted in the Nasdaq National Market.
===============================================================================
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
ITEM 1. PLAN INFORMATION.*
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.*
- ---------------------------------
* Information required by Part I to be contained in the Section 10(a)
prospectus is omitted from this Registration Statement in accordance with
Rule 428 under the Securities Act of 1933, as amended (the "Securities Act"),
and the Note to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents previously filed by the Registrant with the
Securities and Exchange Commission (the "Commission") are incorporated by
reference in this Registration Statement:
(1) The Registrant's Annual Report on Form 10-K for the fiscal year
ended June 30, 1997, filed with the Commission on September 26, 1997.
(2) The Registrant's Quarterly Report on Form 10-Q for the quarter
ended September 30, 1997, filed with the Commission on October 30, 1997, as
amended by the Registrant's Quarterly Report on Form 10-Q/A, filed with the
Commission on October 31, 1997.
(3) The Registrant's Quarterly Report on Form 10-Q for the quarter
ended December 31, 1997, filed with the Commission on February 4, 1998.
(4) The Registrant's Quarterly Report on Form 10-Q for the quarter
ended March 31, 1998, filed with the Commission on May 5, 1998.
(5) The description of the Registrant's Common Stock contained in the
Registrant's Registration Statement on Form 8-A, as filed with the Commission
on October 26, 1992, which incorporated by reference the section titled
"Description of Capital Stock" contained in the Prospectus as part of the
Registrant's Registration Statement on Form S-1 (Registration No. 33-53286).
In addition, all documents subsequently filed by the Registrant with the
Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), prior to the filing of a
post-effective amendment which indicates that all securities offered hereby
have been sold or which deregisters all securities then remaining unsold, shall
be deemed to be incorporated by reference in this Registration Statement and to
be a part hereof from the date of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
II-2
ITEM 5. INTEREST OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Texas law permits a Texas corporation to include in its articles of
incorporation a provision eliminating or limiting the liability of a director
to the corporation or its shareholders for monetary damages arising from acts
or omissions in the director's capacity as a director. Such a provision may
not, however, eliminate or limit a director's liability to the extent the
director is found liable for (i) a breach of the director's duty of loyalty to
the corporation or its shareholders, (ii) an act or omission not in good faith
that constitutes a breach of duty of the director to the corporation or an act
or omission that involves intentional misconduct or a knowing violation of the
law, (iii) a transaction from which the director received an improper benefit,
whether or not the benefit resulted from an action taken within the scope of
the director's office, or (iv) an act or omission for which the liability of a
director is expressly provided by an applicable statute. The Registrant's
Restated Articles of Incorporation, as amended, contain a provision eliminating
the liability of the Registrant's directors to the Registrant and its
shareholders to the fullest extent permitted by Texas law, as it exists or may
be amended or interpreted from time to time.
In addition, the Registrant's Bylaws, as amended (the "Bylaws"), require it
to indemnify its directors and officers against any and all liability and
reasonable expenses that may be incurred by them in connection with or
resulting from (i) any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative, arbitrative, or
investigative, (ii) an appeal of such action, suit or proceeding, or (iii) an
inquiry or investigation that could lead to such an action, suit or proceeding,
all to the fullest extent permitted by Texas law. The Bylaws also require the
Registrant to pay or reimburse, in advance of the final disposition of any
action, suit, or proceeding, all reasonable expenses incurred by a director or
officer who was, is, or is threatened to be made a named defendant or
respondent in an action, suit, or proceeding, all to the fullest extent
permitted by Texas law.
Texas law and the Bylaws also permit the Registrant to purchase and
maintain insurance on behalf of its directors and officers against liabilities
that they may incur in their capacities as such, whether or not the Registrant
would have the power to indemnify them under Texas law or the Bylaws. The
Registrant currently maintains such insurance for the benefit of its directors
and officers.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
* 5.1 Opinion of Gardere & Wynne, L.L.P.
* 10.34 Ace Cash Express, Inc. 1997 Stock Option Plan, as adopted August 4,
1997.
* 10.35 Form of Incentive Stock Option Agreement.
* 23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Gardere & Wynne, L.L.P. (included as part of Exhibit
5.1).
24 Power of Attorney (set forth on the signature pages of the
registration statement).
- --------------------
* Filed herewith
II-3
ITEM 9. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made of the securities registered hereby, a post-effective amendment
to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3)
of the Securities Act;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of this Registration
Statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate,
represent a fundamental change in the information set
forth in this Registration Statement;
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in
this Registration Statement or any material change to
such information in this Registration Statement;
provided, however, that the undertakings set forth in paragraphs (1)(i) and
-------- -------
(1)(ii) above do not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic
reports filed by the Registrant pursuant to Section 13 or Section 15(d) of
the Exchange Act that are incorporated by reference in this registration
statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post- effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
The undersigned Registrant hereby further undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act that is incorporated by reference in this Registration Statement
shall be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the Commission such indemnification is
against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrant of expenses incurred or
paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act and will be governed
by the final adjudication of such issue.
II-4
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Irving, State of Texas, on the 31st day of August,
1998.
ACE CASH EXPRESS, INC.
(Registrant)
By:/S/ DONALD H. NEUSTADT
----------------------------------------
Donald H. Neustadt
President and Chief Executive Officer
Each person whose signature appears below hereby constitutes and appoints
Donald H. Neustadt and Jay B. Shipowitz, and each of them (with full power in
each of them to act alone), his true and lawful attorneys-in-fact and agents,
with full power of substitution and resubstitution, for him and in his name,
place and stead, in any and all capacities, to sign and to file with the
Commission any and all amendments, exhibits, certificates, and other documents
in connection therewith, in connection with the registration under the
Securities Act of shares of Common Stock issuable pursuant to the Plan,
granting unto said attorneys-in-fact and agents, and each of them, full power
and authority to do and perform each and every act and thing requisite and
necessary to be done, as fully to all intents and purposes as he might or could
do in person, hereby ratifying and confirming all that said attorneys-in-fact
and agents, or either of them, or their or his substitute or substitutes, may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the date indicated below.
Name Title Date
- ---- ----- ----
/S/ RAYMOND C. HEMMIG Chairman of the Board, August 31, 1998
- ------------------------ Director
Raymond C. Hemmig
/S/ DONALD H. NEUSTADT President, Chief Executive August 31, 1998
- ------------------------ Officer, and Director
Donald H. Neustadt (Principal Executive Officer)
/S/ JAY B. SHIPOWITZ Senior Vice President, August 31, 1998
- ------------------------ Chief Financial Officer,
Jay B. Shipowitz Treasurer and Secretary
(Principal Financial and
Accounting Officer)
II-5
/S/ HOWARD W. DAVIS Director August 31, 1998
- ------------------------
Howard W. Davis
/S/ MARSHALL B. PAYNE Director August 31, 1998
- ------------------------
Marshall B. Payne
/S/ EDWARD W. ROSE, III Director August 31, 1998
- ------------------------
Edward W. Rose, III
/S/ CHARLES DANIEL YOST Director August 31, 1998
- ------------------------
Charles Daniel Yost
II-6
INDEX TO EXHIBITS
Sequentially
Exhibit Numbered
Number Exhibit Page
- ------- ------- -----------
* 5.1 Opinion of Gardere & Wynne, L.L.P.
* 10.34 Ace Cash Express, Inc. 1997 Stock Option Plan, as
adopted August 4, 1997.
* 10.35 Form of Incentive Stock Option Agreement.
* 23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Gardere & Wynne, L.L.P. (included as part
of Exhibit 5.1).
24 Power of Attorney (set forth on the signature pages
of the registration statement).
- --------------------
* Filed herewith
II-7
EXHIBIT 10.34
ACE CASH EXPRESS, INC. 1997 STOCK OPTION PLAN
ACE CASH EXPRESS, INC.
1997 STOCK OPTION PLAN
On August 4, 1997, the Board of Directors of Ace Cash Express, Inc. adopted the
following 1997 Stock Option Plan:
1. PURPOSE. The purpose of the Plan is to provide key employees with
a proprietary interest in the Company through the granting of options which
will
(a) increase the interest of the key employees in the Company's
and its Subsidiaries' welfare;
(b) furnish an incentive to the key employees to continue their
services for the Company and its Subsidiaries; and
(c) provide a means through which the Company and its Subsidiaries
may attract able persons to enter its employ.
2. ADMINISTRATION. The Plan will be administered by the Committee.
3. PARTICIPANTS. The Committee shall, from time to time, select the
particular key employees of the Company and its Subsidiaries to whom options
are to be granted and who will, upon such grant, become participants in the
Plan. For purposes of the Plan, "key employees" are those officers and
employees whose performance and responsibilities are determined by the
Committee to be influential to the success of the Company and its Subsidiaries.
4. STOCK OWNERSHIP LIMITATION. No Incentive Option may be granted to
a key employee who owns more than 10% of the voting power of all classes of
capital stock of the Company or its Parent or Subsidiaries; except that this
limitation will not apply if the option price is at least 110% of the fair
market value of the Common Stock at the time the Incentive Option is granted
and the Incentive Option is not exercisable more than five years from the date
it is granted.
5. SHARES SUBJECT TO PLAN. The Committee may not grant options under
the Plan for more than 600,000 shares of Common Stock, but this number may be
adjusted to reflect, if deemed appropriate by the Committee, any stock dividend
, stock split, share combination, recapitalization, or the like of or by the
Company. Shares to be optioned and sold may be made available from either
authorized but unissued Common Stock or Common Stock held by the Company in its
treasury. Shares that by reason of the expiration of an option or otherwise
are no longer subject to purchase pursuant to an option granted under the Plan
may be re-offered under the Plan.
6. LIMITATION ON AMOUNT. The aggregate fair market value (determined
at the time of grant) of the shares of Common Stock which any key employee is
first eligible to purchase in any calendar year by exercise of Incentive
Options granted under the Plan and all incentive stock option plans of the
Company or its Parent or Subsidiaries shall not exceed $100,000. For this
purpose, the fair market value (determined at the date of grant of each option)
of the Common Stock purchasable by exercise of an Incentive Option (or an
installment thereof) shall be counted against the $100,000 annual limitation
for a key employee only for the calendar year such Common Stock is first
purchasable under the terms of the option.
7. ALLOTMENT OF SHARES. The Committee shall determine the number of
shares of Common Stock to be offered from time to time by grant of options to
key employees of the Company or its Subsidiaries. The grant of an option to a
key employee shall not be deemed to entitle the employee to, or to disqualify
the employee from, participation in any other grant of options under the Plan.
8. GRANT OF OPTIONS. All options under the Plan shall be granted by
the Committee, which is authorized to grant Incentive Options and Nonqualified
Options under the Plan. Each grant of options shall be evidenced by a stock
option agreement containing such terms and provisions as are approved by the
Committee, but not inconsistent with the Plan, including (without limitation)
provisions that may be necessary to assure that any option that is intended to
be an Incentive Option will comply with Section 422 of the Internal Revenue
Code. The Company shall execute stock option agreements upon instructions from
the Committee. The Plan shall be submitted to the Company's shareholders for
approval. The Committee may grant options under the Plan prior to the time of
shareholder approval, and those options will be effective when granted, but if
for any reason the shareholders of the Company do not approve the Plan prior to
one year from the date of adoption of the Plan by the Board, all options
granted under the Plan will be terminated and of no effect. No option may be
exercised in whole or in part prior to such shareholder approval. A stock
option agreement may provide that the participant may request approval from the
Committee to exercise an option or a portion thereof by tendering shares of
Common Stock, at the fair market value per share on the date of exercise, in
lieu of cash payment of the exercise price.
2
9. OPTION PRICE. The option price of an Incentive Option shall not be
less than 100% of the fair market value per share of the Common Stock (or 110%
of such value if required by Section 4) on the date the Incentive Option is
granted. The Committee shall determine the fair market value of the Common
Stock on the date of grant of the Incentive Option, using any reasonable
valuation method, and shall set forth the determination in the resolutions it
adopts or in minutes.
10. OPTION PERIOD. The Option Period will begin on the date the option
is granted, which will be the date the Committee authorizes the option unless
the Committee specifies another date (which can only be a later date if the
option is an Incentive Option). No option may terminate later than ten years
from the date the option is granted. The Committee may provide for the
exercise of options in installments and upon such terms, conditions, and
restrictions as it may determine. The Committee may provide for termination of
the option in the case of termination of employment or for any other reason.
11. RIGHTS IN EVENT OF DEATH OR DISABILITY. If a participant dies or
becomes disabled (within the meaning of Section 22(e)(3) of the Internal
Revenue Code) prior to expiration of his or her right to exercise an option in
accordance with the provisions of the applicable stock option agreement without
having totally exercised the option, the option may be exercised, to the extent
of the shares with respect to which the option could have been exercised by the
participant on the date of his or her death or disability (or to such other
extent provided in the stock option agreement), (a) in the case of death, by
the participant's estate or by the person who acquired the right to exercise
the option by bequest or inheritance or by reason of the death of the
participant, or (b) in the case of disability, by the participant or his or her
personal representative, provided the option is exercised prior to the date of
its expiration or not more than 180 days after the date of termination of the
participant's employment because of his or her death or disability (or such
other date as may be provided in the stock option agreement), whichever first
occurs. The date of disability of a participant shall be determined by the
Committee.
12. PAYMENT. Full payment for shares purchased upon exercising an
option shall be made at the time of exercise in cash or by check, or if the
stock option agreement so permits, by tendering shares of Common Stock at the
fair market value per share at that time, or on such other terms as are set
forth in the applicable stock option agreement. No shares may be issued until
full payment of the purchase price therefor has been made, and a participant
will have none of the rights of a shareholder of the Company regarding those
shares until those shares are issued to him. In addition, the participant
shall tender payment of such amount as may be requested by the
3
Company, if any, for the purpose of satisfying its liability to withhold
federal, state, or local income or other taxes incurred by reason of the
exercise of an option.
13. EXERCISE OF OPTION. Options granted under the Plan may be
exercised during the Option Period at such times, in such amounts, in
accordance with such terms, and subject to such restrictions as are set forth
in the applicable stock option agreements. A stock option agreement may
provide for acceleration of exercise upon termination of employment for any
reason. In no event may an option be exercised or shares be issued pursuant to
the exercise of an option if any requisite action, approval, or consent of any
governmental authority of any kind having jurisdiction over the exercise of
options shall not have been taken or secured.
14. CAPITAL ADJUSTMENTS AND REORGANIZATIONS. The number of shares of
Common Stock covered by each outstanding option granted under the Plan and the
option or purchase price may be adjusted to reflect, as deemed appropriate by
the Committee, any stock dividend, stock split, share combination, exchange of
shares, sale of all or substantially all outstanding capital stock,
recapitalization, merger, consolidation, separation, reorganization, sale of
all or substantially all assets, liquidation, or the like of or by the Company.
In the event of a merger, consolidation, share exchange, sale of all or
substantially all outstanding capital stock, reorganization, sale of all or
substantially all assets, liquidation, recapitalization, separation, or the
like of or by the Company, the Company (acting by or through the Board or the
Committee) may make such arrangements as it deems advisable with respect to
outstanding options granted under the Plan, and those arrangements shall be
binding upon each participant who holds an outstanding option granted under the
Plan, including (without limitation) arrangements for the substitution of new
options for any options then outstanding (by conversion or otherwise), the
assumption of any such outstanding options, or the payment for any such
outstanding options. Any such arrangements relating to an Incentive Option
shall comply with the requirements of Section 422 of the Internal Revenue Code
and the regulations thereunder. If (a) the Company becomes a party to an
agreement providing for the merger, consolidation, or share exchange of or by
the Company, any other sale of all or substantially all of the outstanding
Common Stock, or any sale of all or substantially all of the assets of the
Company (any such transaction, a "Transaction") and the agreement provides that
the holders of the outstanding shares of Common Stock will receive cash,
securities, or other property directly or indirectly from one or more persons
or entities other than the Company or any of its Subsidiaries (collectively, if
more than one, the "Purchaser") upon the effectiveness of the Transaction, and
(b) the Company does not make arrangements for the substitution of new options
from the
4
Purchaser for any options then outstanding (by conversion or otherwise), the
assumption of such options by the Purchaser, or the payment for such options,
then the Plan shall terminate and any options outstanding under the Plan shall
terminate upon the effectiveness of such Transaction; provided, however, that
all outstanding options granted under the Plan (whether or not theretofore
vested or exercisable) shall become immediately exercisable during the ten days
immediately preceding the effective date of such Transaction as well as on the
effective date of the Transaction until it is effective. If the options will
so terminate upon the effectiveness of a Transaction, the Company shall give
each holder of an option at least ten days' notice of the opportunity to
exercise his or her options before such termination. The Company shall, prior
to the effectiveness of the Transaction, issue all Common Stock purchased by
exercise of outstanding options, and such Common Stock shall be treated as
issued and outstanding for purposes of the Transaction.
15. NON-ASSIGNABILITY. Incentive Options and, unless specified in the
applicable stock option agreement, Nonqualified Options may not be transferred
other than by will or by the laws of descent and distribution. Except to the
extent provided in Section 11, during a participant's lifetime, Incentive
Options and, unless specified in the applicable stock option agreement,
Nonqualified Options granted to a participant may be exercised only by the
participant.
16. INTERPRETATION AND LIABILITY. The Committee shall interpret the
Plan and shall prescribe such rules and regulations in connection with the
operation of the Plan as it determines to be advisable for the administration
of the Plan. The Committee may rescind and amend its rules and regulations.
Neither the Committee nor any member thereof shall be liable for any action,
omission, interpretation, construction, or determination made in connection
with the Plan in good faith, and the members of the Committee shall be entitled
to indemnification and reimbursement by the Company in respect of any claim,
loss, damage, or expense (including, without limitation, attorneys' fees)
arising therefrom to the full extent permitted by law and the Articles of
Incorporation and the Bylaws of the Company.
17. AMENDMENT OR DISCONTINUANCE. The Plan may be amended or
discontinued by the Board or the Committee without the approval of the
shareholders of the Company, except that any amendment that would (a)
materially increase the number of securities that may be issued under the Plan
or (b) materially modify the requirements of eligibility for participation in
the Plan must be approved by the shareholders of the Company.
5
18. EFFECT OF PLAN. Neither the adoption of the Plan nor any action of
the Board or the Committee shall be deemed to give any key employee any right
to be granted an option to purchase Common Stock or any other rights except as
may be evidenced by a stock option agreement, or any amendment thereto, duly
authorized by the Committee and executed on behalf of the Company, and then
only to the extent and on the terms and conditions expressly set forth therein.
The existence of the Plan and the options granted hereunder shall not affect in
any way the right or power of the Board 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 of the Company, any issue of bonds, debentures, or shares of
preferred stock ahead of or affecting the Common Stock or the rights of the
holders thereof, the dissolution or liquidation of the Company or any sale or
transfer of all or any part of its assets or business, or any other corporate
act or proceeding. Nothing in this Plan shall be construed as conferring upon
any participant the right to continue as an employee, officer, or director of
the Company.
19. TERM. Unless sooner terminated by action of the Board, this Plan
will terminate on August 4, 2007. The Committee may not grant options under
the Plan after that date, but options granted before that date will continue to
be effective in accordance with their terms.
20. APPLICABLE LAW. This Plan shall be construed and enforced in
accordance with, and governed by, the laws of the State of Texas.
21. DEFINITIONS. For the purpose of this Plan, unless the context
requires otherwise, the following terms shall have the meanings indicated:
(a) "Board" means the Board of Directors of the Company.
(b) "Committee" means the committee of the Board appointed to
administer the Plan, or in the absence of such a committee, the
entire Board.
(c) "Common Stock" means the Common Stock which the Company is
currently authorized to issue or may in the future be authorized to
issue (as long as the common stock varies from that currently
authorized, if at all, only in amount of par value).
(d) "Company" means Ace Cash Express, Inc., a Texas corporation.
(e) "Incentive Option" means an option granted under the Plan which
meets the requirements of Section 422 of the Internal Revenue Code.
6
(f) "Internal Revenue Code" means the Internal Revenue Code of 1986, as
amended, and any successor statute.
(g) "Nonqualified Option" means an option granted under the Plan which
is not an Incentive Option.
(h) "Option Period" means the period during which an option may be
exercised.
(i) "Parent" means any corporation in an unbroken chain of corporations
ending with the Company if, at the time of granting of the option,
each of the corporations other than the Company owns capital stock
possessing 50% or more of the total combined voting power of all
classes of capital stock in one of the other corporations in the
chain.
(j) "Plan" means this 1997 Stock Option Plan as may be amended from
time to time.
(k) "Subsidiary" means any corporation in an unbroken chain of
corporations beginning with the Company if, at the time of the
granting of the option, each of the corporations other than the
last corporation in the unbroken chain owns capital stock
possessing 50% or more of the total combined voting power of all
classes of capital stock in one of the other corporations in the
chain, and "Subsidiaries" means more than one of any such
corporations.
7
EXHIBIT 10.35
FORM OF INCENTIVE STOCK OPTION AGREEMENT
ACE CASH EXPRESS, INC.
INCENTIVE STOCK OPTION AGREEMENT
1. Grant of Option. Pursuant to the 1997 Stock Option Plan (the "Plan")
----------------
for key employees of Ace Cash Express, Inc., a Texas corporation (the
"Company"), and its Subsidiaries, the Company grants to
---------------------------
(the "Option Holder")
an Incentive Option to purchase from the Company a total of ____________ shares
of Common Stock at $__________ per share (being at least the fair market value
per share of the Common Stock on the date of grant) in the amounts, during the
periods, and upon the other terms and conditions set forth in this Agreement.
2. Time of Exercise. Except only as specifically provided elsewhere in
-----------------
this Agreement, this option is exercisable in the following cumulative
installments:
(a) Up to 25% of the total optioned shares at any time after
________________________;
(b) Up to an additional 25% of the total optioned shares at any time
after ________________________;
(c) Up to an additional 25% of the total optioned shares at any time
after ________________________;
(d) Up to an additional 25% of the total optioned shares at any time
after ________________________.
If an installment covers a fractional share, such installment will be rounded
off to the next highest share, except for the final installment, which will be
for the balance of the total optioned shares. In the event of the termination
of the Option Holder's employment with the Company and its Subsidiaries for any
reason, the option will be exercisable only to the extent that the Option
Holder could have exercised it on the date of his termination of employment.
The installments of the option may become exercisable earlier than stated above
in this Section 2 to the extent provided in Section 14 of the Plan.
3. Subject to Plan. This option and the grant and exercise thereof are
----------------
subject to the terms and conditions of (including, without limitation, the
definitions set forth in) the Plan, which is incorporated herein by reference
and
<PAGE
made a part hereof, but the terms of the Plan shall not be considered an
enlargement of any benefits under this Agreement. In the event of any conflict
between the terms of the Plan and the terms of this Agreement, the terms of the
Plan shall control. In addition, this option is subject to any rules and
regulations promulgated pursuant to the Plan, now or hereafter in effect.
4. Term. This option will terminate at the first to occur of the
-----
following:
(a) 5 p.m., Dallas, Texas time, on ______________________.
(b) 5 p.m., Dallas, Texas time, on the date that is 180 days after the
date the Option Holder's employment with the Company and its Subsidiaries
terminates by reason of the Option Holder's death or disability.
(c) 5 p.m., Dallas, Texas time, on the date on which the Option
Holder's employment with the Company or any of its Subsidiaries is
terminated for Cause (as defined below in this Section 4).
(d) 5 p.m., Dallas, Texas time, on the date that is 30 days after the
date the Option Holder's employment with the Company and its Subsidiaries
terminates for a reason other than death, disability, or Cause.
For the purposes of this Agreement, "Cause" shall mean (i) the involvement of
the Option Holder in a felony-grade crime or any crime involving theft or
fraud; (ii) the violation by the Option Holder of any provision of Section 11
hereof; or (iii) the Option Holder's gross and willful inattention to his or
her duties as a key employee of the Company, other than due to a cause beyond
the reasonable control of the Option Holder. The existence of Cause for the
termination of Option Holder's employment, as determined in good faith by the
Company, shall be binding for the purposes of this Agreement.
5. Who May Exercise. During the lifetime of the Option Holder, this
-----------------
option may be exercised only by the Option Holder. If the Option Holder dies
or becomes disabled (within the meaning of Section 22(e)(3) of the Internal
Revenue Code) prior to the termination date specified in Section 4(a) hereof
without having exercised this option as to all of the optioned shares, this
option may be exercised, to the extent the Option Holder could have exercised
this option on the date of his or her death or disability, at any time prior to
the earlier of the dates specified in Sections 4(a) and 4(b) hereof by (i) the
Option Holder's estate or a person who acquired the right to exercise the
option by bequest or inheritance or by reason of the death of the Option Holder
in the event of the Option Holder's death, or (ii) the Option Holder or his or
her personal representative in the event of the Option Holder's disability,
subject to
-2-
the other terms of this Agreement, the Plan, and applicable laws, rules, and
regulations. For the purposes of this Agreement, the Company shall determine
the date of disability of the Option Holder.
6. Restrictions on Exercise. This option:
-------------------------
(a) may be exercised only with respect to full shares, and no
fractional share of stock shall be issued;
(b) may not be exercised in whole or in part, and no cash or
certificates representing shares subject to this option shall be delivered,
if any requisite action, approval, or consent of any governmental authority
of any kind having jurisdiction over the exercise of options shall not have
been secured; and
(c) may be exercised only if, at all times during the period beginning
with the date of grant of this option and ending on the date 30 days prior
to the date of exercise, the Option Holder was an employee of the Company
or any of its Subsidiaries; provided, that if the Option Holder's
continuous employment is terminated (i) for Cause, the option shall
terminate in accordance with Section 4(c) hereof, or (ii) by death or
disability, or if the Option Holder dies or becomes disabled within such
30-day period, the option may be exercised in accordance with Section 5
hereof.
7. Manner of Exercise. Subject to such administrative regulations as the
-------------------
Committee may from time to time adopt, the Option Holder or beneficiary shall,
in order to exercise this option, give written notice to the Company of the
number of shares being purchased and the purchase price to be paid therefor,
accompanied by the following:
(a) full payment in United States dollars of the option or purchase
price in the form of cash or a check for the shares of Common Stock being
purchased; and
(b) such documents as the Company, in its discretion, deems necessary
(i) to evidence the exercise, in whole or in part, of the option evidenced
by this Agreement, (ii) to determine whether registration is then required
under the Securities Act of 1933, or any other similar law, as then in
effect, and (iii) to comply with or satisfy the requirements of the
Securities Act of 1933, or any other similar law, as then in effect.
The Company may permit the Option Holder to exercise this option by delivering
to the Company, in lieu of payment of the option or purchase price directly by
the Option Holder, a properly executed notice of exercise together with
irrevocable instructions to a securities broker to promptly deliver to the
Company cash or a check payable and acceptable to the Company in the full
amount of the option or purchase price to exercise the option; provided, that
the Option Holder and
-3-
the broker shall comply with such procedures and enter into such agreements of
indemnity and other agreements as the Company shall prescribe as a condition of
such payment procedure.
8. Non-Assignability. This option is not assignable or transferable by the
------------------
Option Holder except by will or by the laws of descent and distribution.
9. Rights of Shareholder. The Option Holder will have no rights as a
----------------------
shareholder of the Company with respect to any shares covered by this option
until the issuance of a certificate or certificates to the Option Holder for
those shares. Except as otherwise provided in Section 10 hereof, no adjustment
shall be made for dividends or other rights for which the record date is prior
to the issuance of such certificates.
10. Capital Adjustments and Reorganizations. The number of shares of
----------------------------------------
Common Stock covered by this option, and the option or purchase price thereof,
shall be subject to such adjustment as the Committee may deem appropriate to
reflect any stock dividend, stock split, share combination, exchange of shares,
sale of all or substantially all outstanding capital stock, recapitalization,
merger, consolidation, separation, reorganization, sale of all or substantially
all assets, liquidation, or the like of or by the Company. The Company (acting
by or through the Board or the Committee) may also, in the event of a merger,
consolidation, share exchange, sale of all or substantially all outstanding
capital stock, reorganization, sale of all or substantially all assets,
liquidation, recapitalization, separation, or the like of or by the Company,
make such arrangements as it deems advisable with respect to outstanding
options granted under the Plan, and those arrangements shall be binding upon
the Option Holder. As provided in Section 14 of the Plan, those arrangements
may include (without limitation) arrangements for the substitution of new
options for any options then outstanding (by conversion or otherwise), the
assumption of any such outstanding options, or the payment for any such
outstanding options. Any such arrangements relating to the option evidenced by
this Agreement shall comply with the requirements of Section 422 of the
Internal Revenue Code and the regulations thereunder.
11. Nondisclosure, Noncompetition, and Nonsolicitation.
---------------------------------------------------
(a) The Option Holder is entering into and agreeing to the provisions
of this Section 11 to induce the Company to offer to him or her an option
to acquire an equity interest in the Company and in consideration of the
grant of the option provided for in this Agreement. The Option Holder
hereby acknowledges that in his or her capacity as a key employee of the
Company, he or she will acquire knowledge of and have contact with valuable
customers of the Company and will acquire confidential information
relating to the Company's business, including (without limitation)
information about the needs of customers served by the Company, knowledge
of trained executives and employees, compilations of information, records
and specifications, processes, programs, systems, and methods of doing
business of the Company (all of which knowledge and information being
hereinafter collectively referred to as "Trade Secrets"). (In this Section
11, all references to the "Company" after the first sentence of this
subsection (a) shall include the Subsidiaries.)
(b) The Option Holder acknowledges and agrees that all Trade Secrets
are valuable, special, and unique assets of the Company, the disclosure of
which would cause substantial injury and loss of profits and goodwill to
the Company. The Option Holder therefore agrees that, during the term of
his or her employment and at all times thereafter, he or she shall not,
directly or indirectly, disclose or disseminate any Trade Secret to any
other person, partnership, association, corporation, or other entity, or
lecture upon, publish articles concerning, or otherwise use or employ any
such Trade Secret, except (in any case) as required in the course of his or
her employment with the Company. In addition, all data, drawings, programs
, systems, and other records and written materials prepared or compiled by
the Option Holder or furnished to him or her during the term of his or her
employment with the Company shall be the sole and exclusive property of the
Company, and none of such data, drawings, programs, systems, or other
records or written materials, or copies thereof, shall be retained by the
Option Holder upon or following termination of his or her employment.
(c) The Option Holder further acknowledges and agrees that the
experience which he or she will gain and the information which he or she
will acquire while an employee of the Company regarding the Trade Secrets
will enable him or her to injure the Company if he or she should compete
with the Company in any enterprise a material part of the business of which
is competitive with the business conducted or proposed during his or her
employment to be conducted by the Company. For those reasons and in
consideration of the Company's granting
-5-
the Option Holder this option or permitting him or her to acquire shares of
Common Stock under this option, the Option Holder hereby agrees to the
following:
(i) Without the prior written consent of the Company, the Option Holder
shall not during the period of his or her employment, directly or
indirectly, invest or engage in any business that is competitive with
that of the Company or accept employment with or render services to a
competitor of the Company as a director, officer, agent, employee or
consultant, or take any action inconsistent with the fiduciary
responsibility of any employee to his or her employer. If the
employment of the Option Holder is terminated by the Company other than
for Cause within 18 months from the date of this Agreement, the Option
Holder shall not thereafter be subject to any noncompetition
restriction contained in this Agreement (though any noncompetition
restriction contained in any other agreement shall not be affected).
Except as provided in the immediately preceding sentence, if the
employment of the Option Holder is terminated for any reason other than
death or disability by either the Option Holder or the Company, the
Option Holder agrees that for two years following such termination, he
or she shall not, directly or indirectly, either through any kind of
ownership (other than ownership of securities of publicly held
corporations of which he or she owns less than 1% of any class of
outstanding securities) or as a director, officer, agent, employee or
consultant, engage in any enterprise a material part of the business of
which is competitive with the business conducted or proposed during his
or her employment to be conducted by the Company in Dallas County,
Texas, in any county of any State, District, or territory of the United
States in which he or she had supervisory responsibility at the time of
termination, and in any county adjacent to such counties, that is
competitive with the business conducted by the Company during his or
her employment or, to his or her knowledge, proposed during such term
of employment to be conducted by the Company, nor shall the Option
Holder contact, solicit, or divert any past or present customers of the
Company in the course of engaging in such competition or otherwise.
The Option Holder expressly agrees that the restrictions contained
herein are reasonable under the circumstances.
(ii) During the term of his or her employment by the Company and for
two years after the termination of such employment for any reason
whatsoever, the Option Holder shall not use or disclose to any person,
partnership, association, corporation or other entity, except as
required in the course of his or her
-6-
employment with the Company, any information (whether constituting a
Trade Secret or otherwise) obtained while an employee of the Company
and shall not, on his or her own behalf or on the behalf of any other
person, partnership, association, corporation or other entity, solicit
customers or employees of the Company or in any manner attempt to
induce any person to leave the employment of the Company or cease his
or her business or commercial relationship with the Company.
12. Law Governing. This Agreement is to be performed in the State of Texas
--------------
and shall be construed and enforced in accordance with, and governed by, the
laws of such State.
13. Date of Grant. The date of grant of this option is _________________.
--------------
14. Notices. All notices or other communications required or permitted
--------
hereunder to be given to either of the parties hereto shall be in writing and
shall be effective upon receipt by the party entitled to such notice when
personally delivered or when transmitted by overnight or same-day courier or by
United States registered or certified mail, postage prepaid, to the appropriate
one of the following addresses:
If to the Company: Ace Cash Express, Inc.
1231 Greenway Drive
Suite 800
Irving, Texas 75038
Attention:____________________
If to the Option Holder:
_________________________________
_________________________________
_________________________________
_________________________________
A party's address for notice may be changed by that party's giving notice of
such change of address to the other party hereto in accordance with the
foregoing provisions of this Section 14.
15. Inurement. Subject to the restrictions against transfer or assignment
----------
set forth herein, the provisions of this Agreement shall inure to the benefit
of, and shall be binding upon, the assignee, successors in interest, personal
representatives, guardians, estates, heirs, and legatees of the parties hereto
(as appropriate). Except as permitted or contemplated by this Agreement, the
Option Holder agrees that he or she will not hypothecate or otherwise create or
suffer to exist any lien, claim, or encumbrance on this option or on any of the
optioned shares owned by him or her. Except as
-7-
provided herein, this Agreement is not intended to confer any rights or
benefits upon any person or entity that is not a party hereto.
16. Severability and Reformation. The parties intend all provisions of
-----------------------------
this Agreement to be enforced to the fullest extent permitted by law.
Accordingly, should a court of competent jurisdiction determine that the scope
of any provision is too broad to be enforced as written, the parties intend
that the court should reform the provision to such narrower scope as it
determines to be enforceable. If, however, any provision of this Agreement is
held to be wholly illegal, invalid, or unenforceable under present or future
law, such provision shall be fully severable, 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 hereof shall remain in
full force and effect and shall not be affected by the illegal, invalid, or
unenforceable provision or by its severance. The covenants and agreements of
the Option Holder contained in Section 11 shall survive the termination or
expiration of this Agreement.
17. Attorneys' Fees. If any legal action is brought by either party to
----------------
enforce the terms and conditions of this Agreement, the prevailing party shall
be entitled, in addition to any other relief which may be awarded, to recover
from the other party the prevailing party's reasonable attorneys' fees together
with its other costs and reasonable and necessary expenses incurred in
connection with such litigation.
18. Definitions; Gender and Number. In this Agreement, (i) terms with
-------------------------------
their initial letters capitalized are used as defined in the Plan, unless
otherwise defined herein, and (ii) whenever required by the context, the
pronouns and any variation thereof shall be deemed to refer to the masculine,
feminine, or neuter, and the singular shall include the plural, and vice versa.
19. Counterparts. This Agreement may be executed in counterparts, each of
-------------
which shall be deemed an original, but all of which together shall constitute
one instrument.
-8-
IN WITNESS WHEREOF, the Company has caused this Agreement to be executed by
its duly authorized officer, and the Option Holder, to evidence his or her
consent and approval of all the terms hereof, has duly executed this Agreement
to be effective as of the date specified in Section 13 hereof.
Company:
--------
ACE CASH EXPRESS, INC.
By: ______________________________
Option Holder:
--------------
__________________________________
-9-
EXHIBIT 5.1
OPINION OF GARDERE & WYNNE, L.L.P.
214-999-3000
August 31, 1998
Ace Cash Express, Inc.
1231 Greenway Drive, Suite 800
Irving, Texas 75038
Gentlemen:
We have served as counsel for Ace Cash Express, Inc., a Texas corporation
(the "Company"), in connection with the Registration Statement on Form S-8 (the
"Registration Statement"), filed with the Securities and Exchange Commission
under the Securities Act of 1933, as amended, with respect to 900,000 shares
(the "Shares") of the Common Stock, $0.01 par value, of the Company ("Common
Stock") that may be issued and sold by the Company pursuant to the Ace Cash
Express, Inc. 1997 Stock Option Plan (the "Option Plan").
With respect to the foregoing, we have examined the Registration Statement
and such other documents, and such legal matters, as we have deemed necessary
to render the opinion expressed herein. Based on the foregoing, we are of the
opinion that the Shares reserved for issuance pursuant to the Option Plan, when
issued and sold in accordance with the Option Plan and the corresponding option
agreements entered into by the Company for consideration equal to at least the
par value per Share, will be duly authorized, validly issued, and fully paid
and nonassessable.
We consent to the use of this opinion as Exhibit 5.1 to the Registration
Statement and to the use of our name in the Registration Statement under the
heading "Interests of Named Experts and Counsel."
Very truly yours,
GARDERE & WYNNE, L.L.P.
By: /S/ RICHARD A. TULLI
--------------------
Richard A. Tulli, Partner
EXHIBIT 23.1
CONSENT OF ARTHUR ANDERSEN LLP
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this Registration Statement on Form S-8 of our report dated August
15, 1997, included in the Annual Report on Form 10-K of Ace Cash Express, Inc.
for the fiscal year ended June 30, 1997, and to all references to our Firm
included in this Registration Statement on Form S-8.
ARTHUR ANDERSEN LLP
Dallas, Texas
August 31, 1998