EXHIBIT 10.68
[EBS LOGO]
THE EXECUTIVE NONQUALIFIED "EXCESS" PLAN
SERVICE AGREEMENT -- COLI
This agreement is between Executive Benefit Services, Inc. ("EBS"), a North
Carolina corporation, located at 434 Fayetteville St., Ste. 1160, Raleigh N.C.,
27601 and ACE Cash Express, located at ____________________________ ("COMPANY").
Whereas, the company wishes to use the administrative services of EBS to provide
plan level administration for the COMPANY'S nonqualified deferred compensation
plan, hereinafter referred to as the "Plan".
NOW, THEREFORE, in consideration of the terms and conditions contained herein,
the parties hereto agree as follows:
1.0 PLAN IMPLEMENTATION:
EBS will provide the following services in coordination with the
servicing representative(s) to assist the COMPANY in the implementation
of the Plan:
a) Coordinate the preparation of the enrollment material, review
executive communication and organize enrollment meetings and
presentations.
b) Coordinate and implement Plan financing (Investments, Corporate
Owned Life Insurance).
c) Review Plan documents to make sure they are coordinated with
Plan administration capabilities.
d) Coordinate with COMPANY representative(s) the transfer of data
to EBS that is necessary to administer the plan.
2.0 PLAN LEVEL ADMINISTRATION:
a) Executive Level Administration Services:
(i) Daily valuation of Excess Plan accounts.
(ii) Executive statements identifying their account values,
asset allocation, share prices and supplemental
supporting information.
(iii) Internet access to account values and asset allocations.
(iv) Toll free number for account inquiry during business
hours.
b) Company Level Administration Services:
(i) EBS Internet access to view executive values and
allocations.
(ii) Plan liability report to account for Deferred
Compensation expense.
(iii) Plan financing report identifying plan assets, if
corporate owned life insurance or securities managed by
EBS is used.
(iv) General payroll and accounting guidance as necessary.
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3.0 CLIENT REPRESENTATIVES:
a) COMPANY shall provide EBS the most recent copy of the Plan
documents, Retirement Committee administrative procedures
affecting the Plan and any such documents needed for EBS to
administer the Plan.
b) COMPANY shall provide EBS current participant data and other
information as needed to perform its duties. All information
provided to EBS by the COMPANY or its agents may be relied
upon by EBS as being complete and accurate.
c) COMPANY shall appoint one or more employees to act as a
representative for the COMPANY to coordinate the
administration of the Plan with EBS.
4.0 ACKNOWLEDGMENTS:
a) EBS shall not be liable to the COMPANY for any damages arising
out of EBS's duties under this agreement.
b) EBS does not provide legal or accounting advice.
c) EBS may provide general information on the Employee Retirement
Income Security Act of 1974 ("ERISA") but it is solely up to
the client and its advisors on how the Plan is treated under
ERISA. It is acknowledged and agreed that EBS is not the Plan
Administrator or fiduciary of the Plan as those terms are
defined in ERISA.
d) EBS may provide general information on tax consequences of the
Plan but it is solely the responsibility of the COMPANY to
determine actual tax consequences, associated with the Plan.
e) EBS may provide general information as to Plan registration
under the Securities Act of 1933. However, it is solely the
responsibility of the COMPANY to determine whether
registration is required.
f) EBS may provide the COMPANY model documents but it is solely
the responsibility of the COMPANY to determine whether
documents are appropriate for the Plan.
5.0 TERM OF AGREEMENT:
a) This Agreement shall commence as of the date of this Agreement
and continue thereafter, subject to the right by either party
to terminate such Agreement upon providing ninety (90) days
written notice.
b) In the event COMPANY or EBS files a petition for bankruptcy,
or loses any licenses required in order to perform the
services contained herein, this Agreement shall be deemed to
immediately terminate.
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6.0 ELECTION OF SERVICES AND FEES:
[X] ONE TIME PLAN SET UP FEE COLI
----
$500.00
ENROLLMENT PACKETS - $5 per Eligible Employee
o ANNUAL RECORD KEEPING FEES BILLED QUARTERLY
<Table>
<Caption>
# OF ACTIVE PARTICIPANTS
------------------------
first next next
[X] Corporate Owned Life Insurance 1 - 25 26 - 100 100+
------ -------- ---
(i) $1,000.00 annual record keeping fee
(ii) Quarterly Executive statements $100.00 $ 75.00 $50.00
</Table>
<Table>
<Caption>
o OPTIONAL FEATURES o CUSTOMIZED WORK
[ ] Statements mailed to residences [ ] Billed hourly at $100.00 per hour.
($1.00 each statement mailed)
[X] Corporate reports provided quarterly [ ] Fixed fee negotiated in advance.
</Table>
THE FEES LISTED ARE ANNUAL FEES AND ARE BILLED QUARTERLY AND DUE WITHIN 30 DAYS.
A 25% DISCOUNT PER PARTICIPANT APPLIES SHOULD THE EMPLOYER ELECT SEMI-ANNUAL
STATEMENTS. THIS DISCOUNT DOES NOT APPLY TO THE ANNUAL ADMINISTRATIVE FEE.
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7.0 ASSET MANAGEMENT: (please choose one option)
[ ] COMPANY WILL MANAGE SUPPORTING ASSETS. It will be the
responsibility of COMPANY to monitor the relationship between the
Plan Liability portfolio and the supporting asset portfolio. EBS
will provide COMPANY with an Allocation Comparison report on a
quarterly basis. COMPANY will contact the institution holding the
assets and direct fund transfers as it deems appropriate.
[X] EBS WILL MANAGE SUPPORTING ASSETS. By checking this box and
signing this form, COMPANY gives EBS the authority to direct asset
fund transfers in an attempt to maintain a balance between the
overall asset and liability portfolios. An "attempt to maintain a
balance" does not mean that the asset portfolio will always mirror
the liability portfolio. The relationship between the asset and
liability portfolios will be monitored monthly and adjustments to
the assets will be made. No action will be taken by EBS unless a
fund is off balance by more than 5%. Confirmation statements will
be generated and mailed to COMPANY by the asset institution after
every asset fund transfer.
8.0 STATEMENT OF SPONSORED CONTRIBUTIONS/BILLINGS
[X] By checking this box the Company elects not to receive billing
statements from Principal Life Insurance Company for Corporate
Owned Life Insurance premiums. Instead, participants' periodic
salary deferrals define Company contributions.
CHOICE OF LAW: This Agreement will be governed by the laws of the State of
North Carolina.
IN WITNESS WHEREOF, this Agreement is executed at Irving ,
-----------------------------
(City)
Texas . This 15 day of November , 2001 .
- ------- ----- --------------------------- ---------------------
(State) (Day) (Month) (Year)
/s/ T.J. CARTER /s/ JERRY D. SHOOK
- ------------------------------- ------------------------------------------
(Signature of COMPANY) (Signature of EBS)
Vice President, Human Resources Executive Vice President and Trust Officer
- ------------------------------- ------------------------------------------
(Title) (Title)
4
THE ACE CASH EXPRESS
EXECUTIVE NONQUALIFIED EXCESS PLAN
TRUST AGREEMENT
This Agreement made this 30th day of September, 2001, by and between
ACE Cash Express, Inc. (the Plan Sponsor) and First American Bank (the Trustee);
WITNESSETH:
WHEREAS, the Plan Sponsor has adopted a nonqualified deferred
compensation plan, The Ace Cash Express Executive Nonqualified Excess Plan (the
Plan);
WHEREAS, the Plan Sponsor wishes to establish a trust (the Trust) and
to contribute to the Trust assets that shall be held therein, subject to the
claims of the Plan Sponsor's creditors in the event of the Plan Sponsor's
Insolvency as herein defined, until paid to Plan participants and their
beneficiaries in such manner and at such times as specified in the Plan;
WHEREAS, it is the intention of the parties that this Trust shall
constitute an unfunded arrangement and shall not affect the status of the Plan
as an unfunded plan maintained for the purpose of providing deferred
compensation for a select group of management or highly compensated employees
for purposes of Title I of the Employee Retirement Income Security Act of 1974
(ERISA); and
WHEREAS, it is the intention of the Plan Sponsor to make contributions
to the Trust to provide itself with a source of funds to assist it in the
meeting of its liabilities under the Plan;
NOW, THEREFORE, the parties do hereby establish the Trust Agreement and
agree that the Trust shall be comprised, held, and disposed of as follows:
SECTION 1
ESTABLISHMENT OF TRUST
(a) The Plan Sponsor has deposited with the Trustee in trust certain
sums of money which are the principal of the Trust to be held, administered, and
disposed of by the Trustees as provided in this Trust Agreement.
(b) The Trust shall be irrevocable.
(c) The Trust is intended to be a grantor trust, of which the Plan
Sponsor is the grantor, within the meaning of subpart E, part I, subchapter J,
chapter 1, subtitle A of the Internal Revenue Code of 1986, as amended, and
shall be construed accordingly.
(d) The principal of the Trust, and any earnings thereon shall be held
separate and apart from other funds of the Plan Sponsor and shall be used
exclusively for the uses and purposes of Plan participants and general creditors
as herein set forth. Plan participants and their beneficiaries shall have no
preferred claim on, or any beneficial ownership interest in, any assets of the
Trust. Any rights created under the Plan and this Trust Agreement shall be mere
unsecured contractual rights of Plan participants and their beneficiaries
against the Plan Sponsor. Any assets held by the Trust will be subject to the
claims of the Plan Sponsor's general creditors under federal and state law in
the event of Insolvency, as defined in Section 3(a) herein.
(e) The Plan Sponsor, in its sole discretion, may at any time, or from
time to time, make additional deposits of cash or other property in trust with
the Trustee to augment the principal to be held, administered, and disposed of
by the Trustee as provided in this Trust Agreement. Neither the Trustee nor any
Plan participant or beneficiary shall have any right to compel such additional
deposits.
SECTION 2
PAYMENTS TO PLAN PARTICIPANTS AND THEIR BENEFICIARIES
(a) The Plan Sponsor shall deliver to the Trustee a schedule (the
"Payment Schedule") that indicates the amounts payable in respect of each Plan
participant (and his beneficiaries), that provides a formula or other
instructions acceptable to the Trustee for determining the amounts so payable,
the form in which the amount is to be paid (as provided for or available under
the Plan), and the time of commencement for payment of the amounts. Except as
otherwise provided herein, the Trustee shall make payments to the Plan
participants and their beneficiaries in accordance with the Payment Schedule.
The Trustee shall make provision for the reporting and withholding of any
federal, state, or local taxes that may be required to be withheld with respect
to the payment of benefits pursuant to the terms of the Plan and shall pay
amounts withheld to the appropriate taxing authorities or determine that such
amounts have been reported, withheld, and paid by the Plan Sponsor.
(b) The entitlement of a Plan participant or his beneficiaries to
benefits under the Plan shall be determined by the Plan Administrator or such
party as it shall designate under the Plan, and any claim for such benefits
shall be considered and reviewed under the procedures set out in the Plan.
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(c) The Plan Sponsor may make payment of benefits directly to Plan
participants or their beneficiaries as they become due under the terms of the
Plan. The Plan Sponsor shall notify the Trustee of its decision to make payment
of benefits directly prior to the time amounts are payable to participants or
their beneficiaries. In addition, if the principal of the Trust, and any
earnings thereon, are not sufficient to make payments of benefits in accordance
with the terms of the Plan, the Plan Sponsor shall make the balance of each
payment as it falls due. The Trustee shall notify the Plan Sponsor where
principal and earnings are not sufficient to make payment of benefits under the
Plan.
SECTION 3
TRUSTEE RESPONSIBILITY REGARDING PAYMENTS
TO TRUST BENEFICIARY WHEN THE PLAN SPONSOR IS INSOLVENT
(a) The Trustee shall cease payment of benefits to Plan participants
and their beneficiaries if the Plan Sponsor is Insolvent. The Plan Sponsor shall
be considered "Insolvent" for purposes of this Trust Agreement if (i) the Plan
Sponsor is unable to pay its debts as they become due, or (ii) the Plan Sponsor
is subject to a pending proceeding as a debtor under the United States
Bankruptcy Code.
(b) At all times during the continuance of this Trust, as provided in
Section 1(d) hereof, the principal and income of the Trust shall be subject to
claims of general creditors of the Plan Sponsor under federal and state law as
set forth below.
(1) The Board of Directors and the (Chief Executive Officer of the
Plan Sponsor shall have the duty to inform the Trustee in writing of the Plan
Sponsor's Insolvency. If a person claiming to be a creditor of the Plan Sponsor
alleges in writing to the Trustee that the Plan Sponsor has become Insolvent,
the Trustee shall determine whether the Plan Sponsor is Insolvent and, pending
such determination, the Trustee shall discontinue payment of benefits to Plan
participants or their beneficiaries.
(2) Unless the Trustee has actual knowledge of the Plan Sponsor's
Insolvency, or has received notice from the Plan Sponsor or a person claiming to
be a creditor alleging that the Plan Sponsor is Insolvent, the Trustee shall
have no duty to inquire whether the Plan Sponsor is Insolvent. The Trustee may
in all events rely on such evidence concerning the Plan Sponsor's solvency as
may be furnished to the Trustee and that provides the Trustee with a reasonable
basis for making a determination concerning the Plan Sponsor's solvency.
(3) If at anytime the Trustee has determined that the Plan Sponsor
is Insolvent, the Trustee shall discontinue payments to Plan participants or
their beneficiaries and shall hold the assets of the Trust for the benefit of
the Plan Sponsor's general creditors. Nothing in this Trust Agreement shall in
any way diminish any rights as general creditors of the Plan Sponsor with
respect to benefits due under the Plan or otherwise.
(4) The Trustee shall resume the payment of benefits to Plan
participants or their beneficiaries in accordance with Section 2 of this Trust
Agreement only after the Trustee has determined that the Plan Sponsor is not
Insolvent (or is no longer Insolvent).
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(c) Provided that there are sufficient assets, if the Trustee
discontinues the payment of benefits from the Trust pursuant to Section 3(b)
hereof and subsequently resumes such payments, the first payment following such
discontinuance shall include the aggregate amount of all payments due to Plan
participants or their beneficiaries under the terms of the Plan for the period
of such discontinuance, less the aggregate amount of any payments made to Plan
participants or their beneficiaries by the Plan Sponsor in lieu of the payments
provided for hereunder during any such period of discontinuance.
SECTION 4
PAYMENTS TO THE PLAN SPONSOR
Except as provided in Section 3 hereof or except for reimbursements to
the Plan Sponsor of benefits payments required by the Plan which have been paid
directly by the Plan Sponsor, the Plan Sponsor shall have no right or power to
direct the Trustee to return to the Plan Sponsor or to divert to others any of
the Trust assets before all payment of benefits has been made to Plan
participants and their beneficiaries pursuant to the terms of the Plan.
SECTION 5
INVESTMENT AUTHORITY
In no event may the Trustee invest in securities (including stock or
rights to acquire stock) or obligations issued by the Plan Sponsor, other than a
de minimis amount held in common investment vehicles in which the Trustee
invests. All rights associated with assets of the Trust shall be exercised by
the Trustee or the person designated by the Trustee, and shall in no event be
exercisable by or rest with Plan participants.
SECTION 6
DISPOSITION OF INCOME
During the term of this Trust; all income received by the Trust; net of
expenses and taxes, shall be accumulated and reinvested.
SECTION 7
ACCOUNTING BY TRUSTEE
The Trustee shall keep accurate and detailed records of all
investments, receipts, disbursements, and all other transactions required to be
made, including such specific records as shall be agreed upon in writing between
the Plan Sponsor and the Trustee. Within 60 days following the close of each
calendar year and within 60 days after the removal or resignation of the
Trustee, the Trustee shall deliver to the Plan Sponsor a written account of the
administration of the Trust during such year or during the period from the close
of the last preceding year to the date of such removal or resignation, setting
forth all investments, receipts, disbursements, and other transactions effected
by it, including a description of all
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securities and investments purchased and sold with the cost or net proceeds of
such purchases or sales (accrued interest paid or receivable being shown
separately), and showing all cash, securities, and other property held in the
Trust at the end of such year or as of the date of such removal or resignation,
as the case may be.
SECTION 8
RESPONSIBILITY OF TRUSTEE
(a) The Trustee shall act with the care, skill, prudence, and diligence
under the circumstances then prevailing that a prudent person acting in like
capacity and familiar with such matters would use in the conduct of an
enterprise of a like character and with like aims; provided, however, that the
Trustee shall incur no liability to any person for any action taken pursuant to
a direction, request, or approval given by the Plan Sponsor which is
contemplated by, and in conformity with, the terms of the Plan or this Trust and
is given in writing by the Plan Sponsor. In the event of a dispute between the
Plan Sponsor and a party; the Trustee may apply to a court of competent
jurisdiction to resolve the dispute.
(b) If the Trustee undertakes or defends any litigation arising in
connection with this Trust, the Plan Sponsor agrees to indemnify the Trustee
against the Trustee's costs, expenses, and liabilities (including, without
limitation, attorneys' fees and expenses) relating thereto and to be
primarily liable for such payments. If the Plan Sponsor does not pay such costs,
expenses, and liabilities in a reasonably timely manner, the Trustee may obtain
payment from the Trust.
(c) The Trustee may consult with legal counsel (who may also be counsel
for the Plan Sponsor generally) with respect to any of the duties or obligations
hereunder.
(d) The Trustee may hire agents, accountants, actuaries, investment
advisors, financial consultants, or other professionals to assist the Trustee in
performing any of the duties or obligations hereunder.
(e) The Trustee shall have, without exclusion, all powers conferred on
the Trustee by applicable law, unless expressly provided otherwise herein;
provided, however, that if an insurance policy is held as an asset of the Trust,
the Trustee shall have no power to name a beneficiary of the policy other than
the Trust; to assign the policy (as distinct from conversion of the policy to a
different form) other than to a successor Trustee, or to loan to any person the
proceeds of any borrowing against such policy.
(f) Notwithstanding any powers granted to the Trustee pursuant to this
Trust Agreement or to applicable law, the Trustee shall not have any power that
could give this Trust the objective of carrying on a business and dividing the
gains therefrom, within the meaning of section 301.7701-2 of the Procedure and
Administrative Regulations promulgated pursuant to the Internal Revenue Code.
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SECTION 9
COMPENSATION AND EXPENSES OF TRUSTEE
The Plan Sponsor shall pay all administrative fees and expenses and all
Trustee's expenses. If not so paid, the fees and expenses shall be paid from the
Trust.
SECTION 10
RESIGNATION AND REMOVAL OF TRUSTEE
(a) The Trustee may resign at any time by written notice to the Plan
Sponsor, which shall be effective 60 days after receipt of such notice unless
the Plan Sponsor and the Trustee agree otherwise.
(b) The Trustee may be removed by the Plan Sponsor on 60 days notice or
upon shorter notice as accepted by the Trustee.
(c) Upon resignation or removal of any Trustee and appointment of a
successor Trustee, all assets shall subsequently be transferred to any such
successor Trustee. The transfer shall be completed within 30 days after receipt
of notice of resignation, removal, or transfer, unless the Plan Sponsor extends
the time limit.
(d) If a Trustee resigns or is removed, a successor Trustee shall be
appointed by the Plan Sponsor, in accordance with Section 11 hereof, by the
effective date of resignation or removal under this Section 10. If no
appointment of a successor Trustee is made, Trustee may apply to a court of
competent jurisdiction for appointment of a successor or for instructions. All
expenses of the Trustee in connection with the proceedings shall be allowed as
administrative expenses of the Trust.
SECTION 11
APPOINTMENT OF SUCCESSOR
(a) The appointment of a successor Trustee by the Plan Sponsor shall be
effective when accepted in writing by the successor Trustee. Any such successor
Trustee shall have the same rights, title, interest, powers, and duties as those
conferred upon the Trustee who resigned or was removed and shall have no
liability for any actions or omissions of any predecessor Trustee. The former
Trustee shall execute any instrument necessary or reasonably requested by the
successor Trustee to evidence the transfer.
(b) The successor Trustee need not examine the records and acts of any
prior Trustee and may retain or dispose of existing Trust assets, subject to
Sections 7 and 8 hereof. The successor Trustee shall not be responsible for and
the Plan Sponsor shall indemnify and defend the successor Trustee from any claim
or liability resulting from any action or inaction of any prior Trustee or from
any other past event; or any condition existing at the time it becomes successor
Trustee.
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SECTION 12
AMENDMENT OR TERMINATION
(a) This Trust Agreement maybe amended by a written instrument executed
by the Trustee and the Plan Sponsor. Notwithstanding the foregoing, no such
amendment shall conflict with the terms of the Plan or shall make the Trust
revocable.
(b) The Trust shall not terminate until the date on which Plan
participants and their beneficiaries are no longer entitled to benefits pursuant
to the terms of the Plan. Upon termination of the Trust any assets remaining in
the Trust shall be returned to the Plan Sponsor.
(c) Upon written approval of all participants or beneficiaries entitled
to payment of benefits pursuant to the terms of the Plan, the Plan Sponsor
may terminate this Trust prior to the time all benefit payments under the Plan
have been made. All assets in the Trust at termination shall be returned to the
Plan Sponsor.
SECTION 13
MISCELLANEOUS
(a) Any provision of this Trust Agreement prohibited by law shall be
ineffective to the extent of any such prohibition, without invalidating the
remaining provisions hereof.
(b) Benefits payable TO Plan participants and their beneficiaries
under this Trust Agreement may not be anticipated, assigned (either at law or in
equity), alienated, pledged, or encumbered; or subjected to attachment,
garnishment, levy, execution, or other legal or equitable process.
(c) This Trust Agreement shall be governed by and construed in
accordance with the laws of the State of Texas.
SECTION 14
EFFECTIVE DATE
The effective date of this Trust Agreement shall be the date first set
forth above.
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IN WITNESS WHEREOF, this Trust has been executed on the day and year
first set forth above.
PLAN SPONSOR:
ACE CASH EXPRESS, INC.
By: MIKE BRISKEY
----------------------------------
Title: VP Finance
----------------------------------
ATTEST:
/s/ T.J. CARTER
- ----------------------------------
Title: VP -- Human Resources
---------------------------
[CORPORATE SEAL]
TRUSTEE:
-----------------------------------------------
By: JERRY D. SHOOK
----------------------------------------
Title: Executive Vice President & Trust Officer
----------------------------------------
ATTEST:
/s/ [ILLEGIBLE]
- ------------------------------------------
Title: Vice President and Trust Officer
-----------------------------------
[BANK SEAL]
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INVESTMENT AGREEMENT
WHEREAS, ACE Cash Express. Inc. (the Company) has retained First American Bank
as Trustee of the Trust Fund (the Trust) established with respect to certain
plans established to provide deferred compensation, for certain of its
employees.
AND WHEREAS, that Trust is evidenced by certain Trust Agreement by virtue of
which First American Bank agreed to serve as Trustee,
AND WHEREAS, that section 2.0 of the Trust authorized First American Bank to
act pursuant to investment guidelines agreed to in writing from time to time by
the Company and ____________________,
NOW, THEREFORE, in consideration of mutual promises and covenants contained
herein and the performance thereof, it is hereby agreed by and between these
Parties:
1. All contribution to the aforementioned Plan and all assets of the Trust
will be held in certain annuity contracts, mutual fund shares, or other
instruments issued by Principal Life Insurance Company or other
companies which are members of The Principal Financial Group.
2. First American Bank will not be liable for the acts or omission of
Principal Life Insurance Company or other companies which are members
of The Principal Financial Group with regard to the investment of the
contributions of the aforementioned plans and all assets of the Trust.
3. That this agreement shall run for the full term of the Trust unless
superseded by a subsequent written agreement between the Parties. This
Agreement shall be terminated immediately and without notice if the
Trust is terminated, or if First American Bank resigns or is removed
from its role as Trustee.
4. That this agreement shall be construed, interpreted, and governed by
the laws of the State of Iowa.
This Agreement shall be effective on this _____________ day of __________, 20__.
AGREED & ACCEPTED:
/s/ MIKE BRISKEY /s/ JERRY D. SHOOK
- -------------------------- -------------------------------------------
Company ACE Cash Express Executive Vice President & Trust Officer
-------------------------------------------
Title VP Finance Trust Officer
-------------------
Date Date July 17, 2001
-------------------- --------------------------------------
[EBS LOGO]
THE EXECUTIVE NONQUALIFIED EXCESS PLAN
ADOPTION AGREEMENT
THIS AGREEMENT is made the 1st day of October, 2001, by ACE Cash
Express, Inc. (the "Employer"), having its principal office at 1231 Greenway
Drive, #800, Irving, TX 79038 and EXECUTIVE BENEFIT SERVICES, INC. (the
"Sponsor"), having its principal office at 434 Fayetteville Street, Suite 1160,
Raleigh, North Carolina 27601.
WITNESSETH:
WHEREAS, the Sponsor has established The Executive Nonqualified Excess
Plan (the "Plan"); and
WHEREAS, the Employer desires to adopt the Plan as an unfunded,
nonqualified deferred compensation plan, for the benefit of the Employer's [X]
Employees and/or [ ] Independent Contractors;
NOW, THEREFORE, the Employer hereby adopts the Plan in accordance with
the terms and conditions set forth in this Adoption Agreement:
ARTICLE I
Terms used in this Adoption Agreement shall have the same meaning as in
the Plan, unless some other meaning is expressly herein set forth. The Employer
hereby represents and warrants that the Plan has been adopted by the Employer
upon proper authorization and the Employer hereby elects to adopt the Plan for
the benefit of its Participants as referred to in the Plan. By the execution of
this Adoption Agreement, the Employer hereby agrees to be bound by the terms of
the Plan.
This Adoption Agreement may only be used in connection with The
Executive Nonqualified Excess Plan. The Sponsor will inform the Employer of any
amendments to the Plan or of the discontinuance or abandonment of the Plan. For
questions concerning the Plan, the Employer may call the Sponsor at (919)
833-1042.
ARTICLE II
The Employer hereby makes the following designations or elections for
the purpose of the Plan [Section references below correspond to Section
references in the Plan]:
(C) 2000 EXECUTIVE BENEFIT SERVICES, INC.
1
2.4 ADJUSTMENT DATE: The Deferred Compensation Account of Participants
shall be adjusted for the amount of any Salary Deferral Credits, Employer
Matching Credits and Employer Performance Incentive Credits to such account on
the last business day of each Plan Year and such other times as may be
designated below [check any additional desired Adjustment Dates]:
(i) The last business day of each calendar quarter during
---- the Plan Year.
(ii) The last business day of each month during the Plan
---- Year.
XX (iii) The last business day of each payroll period during the
---- Plan Year.
(iv) Each day securities are traded on a national stock
---- exchange.
(v) Other [specify] ________________________________________
---- _______________________________________________________.
2.9 COMPENSATION: The "Compensation" of a Participant shall mean all of
each Participant's [check desired option(s)]:
XX (i) compensation received as an Employee reportable in box
---- 1, Wages, Tips and other Compensation, on Form W-2.
(ii) annual base salary.
----
(iii) annual bonus.
----
(iv) long term incentive plan compensation.
----
(v) compensation received as an Independent Contractor
---- reportable on Form 1099.
(vi) Other [specify] ________________________________________
---- _______________________________________________________.
Notwithstanding the foregoing, Compensation [X] SHALL [ ] SHALL NOT include
Salary Deferral Credits under this Plan and amounts contributed by the
Participant pursuant to a Salary Deferral Agreement to another employee benefit
plan of the Employer which are not includible in the gross income of the
Employee under Section 125, 402(e)(3), 402(h) or 403(b) of the Code.
2
2.13 EFFECTIVE DATE: [check desired option]:
XX (i) This is a newly-established Plan, and the Effective
---- Date of the Plan is JULY 1, 2001.
(ii) This is an amendment and restatement of a Plan with
---- an effective date of ________, and the Effective Date
of this amended and restated Plan is ___________. This
is amendment number _____.
2.20 NORMAL RETIREMENT AGE: The Normal Retirement Age of a Participant
shall be [check desired option]:
XX (i) Age 65.
----
(ii) The later of age ____ or the ______ anniversary of the
---- participation commencement date. The participation
commencement date is the first day of the first Plan
Year in which the Participant commenced participation
in the Plan.
2.22 PARTICIPATING EMPLOYER(S): As of the Effective Date, the following
Participating Employer(s) are parties to the Plan [list all employer-parties,
including the Employer]:
<Table>
<Caption>
Name of Employer Address Telephone No. EIN
- ---------------- ------- ------------- ---
ACE CASH EXPRESS, INC. 1231 GREENWAY DRIVE, #800 (972) 550-5010 75-2142963
IRVING, TX 79038
</Table>
2.23 PLAN: The name of the Plan as applied to the Employer is:
THE EXECUTIVE NONQUALIFIED EXCESS PLAN OF ACE CASH EXPRESS, INC.
3
2.24 PLAN ADMINISTRATOR: The Plan Administrator shall be [check desired
option]:
XX (i) Committee.
--
(ii) Employer.
--
(iii) Other (specify): ____________________________________
--
2.25 PLAN YEAR: The Plan Year shall be the 12 consecutive calendar
month period ending on the last day of the month of December, and each
anniversary thereof.
2.33 TRUST: [check desired option]:
XX (i) The Employer DOES desire to establish a "rabbi" trust
-- for the purpose of setting aside assets of the
Employer contributed thereto for the payment of
benefits under the Plan.
(ii) The Employer DOES NOT desire to establish a "rabbi"
-- trust for the purpose of setting aside assets of the
Employer contributed thereto for the payment of
benefits under the Plan.
2.35 YEARS OF SERVICE: For vesting purposes, Years of Service of a
Participant shall be calculated from the date designated below [check desired
option]:
(i) First Day of Service.
--
XX (ii) Effective Date of the Plan.
--
(iii) Each Contribution Date. Under this option (iii), each
-- Employer Matching Credit or Performance Incentive
Credit shall vest in accordance with the applicable
schedule selected in Section 7 of this Adoption
Agreement based on the Years of Service of a
Participant from the Adjustment Date on which each
Employer Matching Credit or Performance Incentive
Credit is credited to his or her Deferred
Compensation Account.
4
3.1 SALARY DEFERRAL CREDITS: A Participant may elect to have his
Compensation (as selected in Section 2.9 of this Adoption Agreement) reduced by
the following percentage or amount per pay period, or for a specified pay period
or periods, as designated in writing to the Committee [check the applicable
options]:
XX (i) annual base salary:
--
[complete the following blanks only if a minimum or
maximum deferral is desired]:
minimum deferral: $__________ or__________%
maximum deferral: $__________ or 25%
XX (ii) annual bonus:
--
[complete the following blanks only if a minimum or
maximum deferral is desired]:
minimum deferral: $__________ or__________%
maximum deferral: $__________ or 25%
(iii) other [please specify type, as selected in Section
-- 2.9 of this Adoption Agreement]: ________________:
[complete the following blanks only if a minimum or
maximum deferral is desired]:
minimum deferral: $__________ or__________%
maximum deferral: $__________ or _________%
(iv) no salary deferral provision.
--
3.1.3 TERMINATION OF SALARY DEFERRALS: A Participant may terminate his
Salary Deferral Agreement effective as of [check desired option]:
XX (i) the first full payroll period commencing after the
-- date written notice of the termination is received by
the Committee.
(ii) the January 1 occurring after the date written notice
-- of the termination is received by the Committee.
5
3.2 EMPLOYER MATCHING CREDITS: The Employer may make matching credits
to the Deferred Compensation Account of each Participant in an amount determined
as follows [check desired option(s)]:
(i) ______% of the Participant's Salary Deferral Credits.
--
(ii) ______% of the first ______% of the Participant's
-- Compensation which is elected as a Salary Deferral
Credit.
(iii) An amount determined each Plan Year by the Employer.
--
(iv) The Employer shall decide from year to year whether
-- matching credits will be made and shall notify
Participants annually of the manner in which matching
credits will be calculated for the subsequent year.
(v) The Employer shall not match amounts provided above
-- in excess of $ __, or in excess of ___% of the
Participant's Compensation per Plan Year.
(vi) No Employer matching credits provision.
--
XX (vii) Other: 25% OF THE PARTICIPANT'S 401(k) LIMIT.
--
3.3 EMPLOYER PERFORMANCE INCENTIVE CREDITS: The Employer may make
performance incentive credits to the Deferred Compensation Account of each
Active Participant in an amount determined as follows:
(i) Such amount out of the current or accumulated net
-- profit of the Employer for such year as the Employer
in its sole discretion shall determine.
XX (ii) Such amount as the Employer in its sole discretion
-- shall determine without regard to current or
accumulated net profit.
(iii) The Employer shall not make Performance Incentive
-- Credits in excess of $ __, or in excess of __% of the
Participant's Compensation per Plan Year.
(iv) No Employer performance incentive credits provision.
--
6
4.1 DEATH OF A PARTICIPANT: If the Participant dies while in Service,
the Employer shall pay a benefit to the Beneficiary in an amount equal to the
Accrued Benefit of the Participant determined as of the date payments to the
Beneficiary commence, plus [check if desired]:
(i) An amount to be determined by the Committee.
--
(ii) A lump sum of $ __________.
--
(iii) _____ times the annual base salary of the Participant
-- at his date of death.
(iv) Other [specify]:
-- ___________________________________________.
XX (v) No additional benefits.
--
4.4.2 EARLY RETIREMENT: The Employer may elect to provide for Early
Retirement. If Early Retirement is permitted, it shall be subject to the
following eligibility requirements [check desired option and fill in appropriate
blanks]:
(i) Completion of_____ Years of Service.
--
XX (ii) Attainment of age 55
--
(iii) Completion of __________ Years of Service and
-- attainment of age __________.
(iv) No Early Retirement provisions.
--
7
5.1 REGULAR IN-SERVICE WITHDRAWALS: [check desired option]:
(i) The Employer DOES elect to permit regular in-service
-- withdrawals by a Participant from his Deferred
Compensation Account.
XX (ii) The Employer DOES NOT elect to permit regular
-- in-service withdrawals by a Participant from his
Deferred Compensation Account.
5.3 "HAIRCUT" WITHDRAWALS: [check desired option]:
XX (i) The Employer DOES elect to permit "haircut"
-- withdrawals by a Participant from his Deferred
Compensation Account.
Specify percentage (not less than 10%) of amount
withdrawn that shall be forfeited: ________________%
(ii) The Employer DOES NOT elect to permit "haircut"
-- withdrawals by a Participant from his Deferred
Compensation Account.
5.4 COLLEGE EDUCATION WITHDRAWALS: [check desired option]:
XX (i) The Employer DOES elect to permit college education
-- withdrawals by a Participant from his Deferred
Compensation Account.
(ii) The Employer DOES NOT elect to permit college
-- education withdrawals by a Participant from his
Deferred Compensation Account.
8
6.1 PAYMENT OPTIONS: Any benefit payable under the Plan may be made to
the Participant or his Beneficiary (as applicable) in any of the following
payment forms, as selected by the Participant upon his entry into the Plan
[check desired option(s)]:
XX (i) A lump sum in cash as soon as feasible following the
-- date Participant's service with the Employer
terminates for any reason (including Retirement,
Disability or death).
XX (ii) Approximately equal annual installments over a term
-- no longer than 20 years as elected by the Participant
upon his entry into the Plan.
Payment of the benefit shall commence as of the
following date [select desired option]:
The first business day of the calendar year
-- following the date Participant's service
with the Employer terminates for any reason
(including Retirement, Disability or death).
The first business day of the calendar
-- quarter following the date Participant's
service with the Employer terminates for any
reason (including Retirement, Disability or
death).
XX The first business day of the calendar month
-- following the date Participant's service
with the Employer terminates for any reason
(including Retirement, Disability or death).
The payment of each annual installment shall be made
on the anniversary of the date selected for the
commencement of the installment payments in this
subsection (ii). The amount of the annual installment
shall be adjusted on each anniversary date of the
commencement of the installment payments for credits
or debits to the Participant's account pursuant to
Section 8 of the Plan. Such adjustment shall be made
by dividing the balance in the Deferred Compensation
Account on each such date (following adjustment on
such date) by the number of annual installments
remaining to be paid hereunder; provided that the
last annual installment due under the Plan shall be
the entire amount credited to the Participant's
account on the date of payment.
(iii) Other [specify]: ___________________________________
--
9
7. VESTING:
(i) VESTING OF EMPLOYER MATCHING CREDITS: The nonforfeitable
percentage of each Participant in his Accrued Benefit
attributable to any applicable Employer Matching Credits shall
be as follows [check (a), (b), (c), (d), (e), (f) or (g)]:
XX (a) Immediate 100% vesting.
--
(b) 100% vesting after ___ Years of Service.
--
(c) 100% vesting at age ____.
--
<Table>
<Caption>
(d) Number of Years Vested
-- of Service Percentage
--------------- ----------
Less than 1 0%
1 20%
2 40%
3 60%
4 80%
5 or more 100%
</Table>
<Table>
<Caption>
(e) Number of Years Vested
-- of Service Percentage
--------------- ----------
Less than 3 0%
3 20%
4 40%
5 60%
6 80%
7 or more 100%
</Table>
<Table>
<Caption>
(f) Number of Years Vested
-- of Service Percentage
--------------- ----------
Less than 1 ___%
1 ___%
2 ___%
3 ___%
4 ___%
5 ___%
6 ___%
7 ___%
8 ___%
9 ___%
10 or more ___%
</Table>
(g) Not applicable
--
In addition, the nonforfeitable percentage of each Participant in his Accrued
Benefit attributable to any applicable Employer Matching Credits [X] SHALL [ ]
SHALL NOT become 100% vested at the Death or Disability of the Participant.
10
(ii) VESTING OF EMPLOYER PERFORMANCE INCENTIVE CREDITS: The
nonforfeitable percentage of each Participant in his Accrued
Benefit attributable to any applicable Employer Performance
Incentive Credits shall be as follows [check (a), (b), (c),
(d), (e), (f) or (g)]:
(a) Immediate 100% vesting.
--
XX (b) 100% vesting after 5 Years of Service.
--
(c) 100% vesting at age _______.
--
<Table>
<Caption>
(d) Number of Years Vested
-- of Service Percentage
--------------- ----------
Less than 1 0%
1 20%
2 40%
3 60%
4 80%
5 or more 100%
</Table>
<Table>
<Caption>
(e) Number of Years Vested
-- of Service Percentage
--------------- ----------
Less than 3 0%
3 20%
4 40%
5 60%
6 80%
7 or more 100%
</Table>
<Table>
<Caption>
(f) Number of Years Vested
-- of Service Percentage
--------------- ----------
Less than 1 ___%
1 ___%
2 ___%
3 ___%
4 ___%
5 ___%
6 ___%
7 ___%
8 ___%
9 ___%
10 or more ___%
</Table>
(g) Not applicable
--
In addition, the nonforfeitable percentage of each Participant in his Accrued
Benefit attributable to any applicable Employer Performance Incentive Credits
[X] SHALL [ ] SHALL NOT become 100% vested at the Death or Disability of the
Participant.
11
14. AMENDMENT OR TERMINATION OF PLAN: [check or complete all that
apply]:
XX (i) Notwithstanding any provision in this Adoption
-- Agreement or the Plan to the contrary, Section _____
of the Plan shall be amended to read as follows:
See attached Exhibit A.
(ii) The Plan shall be terminated upon the occurrence of
-- one or more of the following events [check if
desired]:
(a) The amount of shareholders equity shown
-- on the financial statements of the Employer
for each of the two most recent fiscal years
is less than $_____________.
(b) The aggregate net loss (after tax) as
-- reported on the financial statements of the
Employer for the two most recent fiscal
years is greater than $______________.
XX (c) There is a change of control of the
-- Employer. For this purpose, a "change of
control" shall be deemed to have occurred
if: (A) any person other than an officer who
is an employee of the Employer for at least
one year preceding the change of control,
acquires or becomes the beneficial owner,
directly or indirectly, of securities of the
Employer representing 50% [insert
percentage] or more of the combined voting
power of the Employer's then outstanding
securities and thereafter, the membership of
the Board becomes such that a majority are
persons who were not members of the Board at
the time of the acquisition of securities;
or (B) the Employer, or its assets, are
acquired by or combined with another entity
and less than a majority of the outstanding
voting shares of such entity after the
acquisition or combination are owned,
immediately after the acquisition or
combination, by the owners of voting shares
of the Employer immediately prior to the
acquisition or combination.
(d) Other [specify]:
-- ____________________________________________
____________________________________________
____________________________________________
17.9 CONSTRUCTION: The provisions of the Plan and Trust (if any) shall
be construed and enforced according to the laws of the State of TEXAS, except to
the extent that such laws are superseded by ERISA.
12
IN WITNESS WHEREOF, this Agreement has been executed as of the day and
year first above stated.
-----------------------------------
ACE Cash Express, Inc.
By: /s/ T.J. CARTER
--------------------------------
Authorized Person
NOTE: EXECUTION OF THIS ADOPTION AGREEMENT CREATES A LEGAL LIABILITY OF THE
EMPLOYER WITH SIGNIFICANT TAX CONSEQUENCES TO THE EMPLOYER AND PARTICIPANTS. THE
EMPLOYER SHOULD OBTAIN LEGAL AND TAX ADVICE FROM ITS PROFESSIONAL ADVISORS
BEFORE ADOPTING THE PLAN. THE SPONSOR DISCLAIMS ALL LIABILITY FOR THE LEGAL AND
TAX CONSEQUENCES WHICH RESULT FROM THE ELECTIONS MADE BY THE EMPLOYER IN THIS
ADOPTION AGREEMENT.
13
EXHIBIT A
TO THE ADOPTION AGREEMENT
OF THE ACE CASH EXPRESS
EXECUTIVE NONQUALIFIED EXCESS PLAN
FIRST AMENDMENT TO THE
ACE CASH EXPRESS
EXECUTIVE NONQUALIFIED EXCESS PLAN
THIS FIRST AMENDMENT, made and entered into on this 1st day of October,
2001, by ACE Cash Express, Inc. (the Employer).
WITNESSETH:
WHEREAS, the Employer heretofore established a nonqualified deferred
compensation plan known as The ACE Gash Express Executive Nonqualified Excess
Plan (the Plan); and
WHEREAS, the Employer has the ability to amend the Plan pursuant to
Section 14 thereof; and
WHEREAS, the Employer desires to amend the Plan to clarify that the
Plan is maintained only for the benefit of the Employers, employees and that
persons classified as independent contractors are not eligible to participate in
the Plan;
NOW, THEREFORE, the Employer does hereby amend the Plan, effective July
1, 2001, as follows:
1.
The second sentence of Section 1 of the Adoption Agreement is hereby
deleted in its entirety and replaced with the following:
The Employer hereby represents and warrants that the Plan has been
adopted by the Employer upon proper authorization and the Employer
hereby elects to adopt the Plan for the benefit of its Participants as
referred to by the Plan; provided, an Independent Contractor as defined
by the Plan shall not be eligible to participate in the Plan and shall
therefore be excluded from the definition of Participant thereunder.
14
2.
Except as specifically amended hereby, the Plan shall remain in full
force and effect as prior to this First Amendment.
IN WITNESS WHEREOF, the Employer has caused this First Amendment to be
executed on the date first above written.
ACE CASH EXPRESS, INC.
By: /s/ T.J. CARTER
----------------------------------
Title: Vice President, Human Resources
-------------------------------
ATTEST:
/s/ J.W. Conner
- -----------------------------------
Title: Secretary
----------------------------
[CORPORATE SEAL]
15