exv10w3



 






Exhibit 10.3




CHANGE-IN-CONTROL EXECUTIVE SEVERANCE AGREEMENT



This Change-in-Control Executive Severance Agreement (this “Agreement”), dated and
effective July 26, 2005, is between Ace Cash Express, Inc., a Texas corporation (the
“Company”), and Walter E. Evans (the “Executive”).




Statement of Purpose



The Company desires, for its continued success, to have the benefit of services of experienced
management personnel like the Executive. The Board of Directors of the Company therefore believes
that it is in the best interest of the Company that, in the event of any prospective change in
control of the Company, the Executive be reasonably secure in his employment and position with the
Company, so that the Executive can exercise independent judgment as to the best interest of the
Company and its shareholders, without distraction by any personal uncertainties or risks regarding
the Executive’s continued employment with the Company created by the possibility of a change in
control of the Company. Therefore, the Company and the Executive are entering into this Agreement
to assure severance benefits to the Executive in connection with certain terminations of employment
upon or after a change in control of the Company.




Agreement



In consideration of the statements made in the Statement of Purpose and the mutual agreements set
forth below, the Company and the Executive agree as follows:





	1.	 	Definitions and Interpretation. Various terms used in this Agreement are defined in
Exhibit A; each of the defined terms used in this Agreement begins with a capital letter.
Various interpretative matters for this Agreement are also set forth in Exhibit A. Exhibit A
is an integral part of this Agreement and is incorporated in this Agreement by reference.






	2.	 	Term of Agreement. This Agreement will continue in effect until the earliest of the
following:






	 	(a)	 	Any termination of the Executive’s employment with the Company before a Change
in Control. (If the Executive is employed by any Subsidiary, whether or not he is also
employed by the Company, any reference in this Agreement to the Executive’s employment
by the Company shall be deemed to include his employment by a Subsidiary.)
	 
	 	(b)	 	11:59 p.m. on June 30 following at least six months’ Notice of termination of
this Agreement by either Party, if that June 30 occurs before a Change in Control.




-1-









 






	 	(c)	 	The Company’s performance of all of its obligations, and the Executive’s
receipt of all of the payments and benefits to which he is entitled, under this
Agreement after a Severance Payment Event.






	3.	 	Severance Benefits. Upon a Severance Payment Event, in addition to any other
severance or employment-termination compensation or benefits to which the Executive may be
entitled from the Company or any Subsidiary under the terms of any Plan of which the Executive
was a participant or a beneficiary immediately before the Severance Payment Event, the Company
shall:






	 	(a)	 	Pay the Executive in cash, within five Business Days after the Severance
Payment Event, all of his Base Salary and all other earned but unpaid cash compensation
or entitlements due to the Executive through (and including) the date of the Severance
Payment Event, including unused earned and accrued vacation pay and unreimbursed
reimbursable business expenses.
	 
	 	(b)	 	Make the Severance Payment in cash within five Business Days after the
Severance Payment Event.
	 
	 	(c)	 	Provide or arrange to provide the Executive (whether or not under any Welfare
Benefit Plan then maintained), at the Company’s sole expense and for the Benefit
Continuation Period, Welfare Benefits that are substantially the same as the Welfare
Benefits provided to the Executive (and the Executive’s dependents and beneficiaries)
immediately before the Severance Payment Event, except that the Welfare Benefits to
which the Executive is entitled under this subsection (c) will be subject to the
Executive’s compliance with Section 4 and will be reduced to the extent that comparable
welfare benefits are received by the Executive from an employer other than the Company
or any Subsidiary during the Benefit Continuation Period. (The fact that the cost of
the participation by the Executive, or the Executive’s dependents or beneficiaries, in
any Welfare Benefit Plan was paid indirectly by the Company, as a reimbursement or a
credit to the Executive, before the Severance Payment Event does not mean that the
corresponding Welfare Benefits were not “provided to the Executive” by the Company for
the purpose of this subsection (c).)






	 	 	In addition, each Stock Award outstanding immediately before the Severance Payment Event and
not yet exercised or forfeited (as the case may be) will accelerate and become fully vested,
exercisable, or nonforfeitable upon the Severance Payment Event, as though all requisite
time had passed to vest the Stock Award or cause it to become exercisable or nonforfeitable.










-2-









 












	4.	 	Nondisclosure and Noncompetition. As an inducement to the Company to enter into
this Agreement, the Executive represents to and covenants with or in favor of the Company as
follows:






	 	(a)	 	The Executive has acquired and will acquire during his employment with the
Company knowledge or awareness of various Trade Secrets. All of the Trade Secrets are
valuable, special, and unique assets of the Company, and the disclosure of any of them,
or their use in any manner, other than on behalf of the Company would cause substantial
injury, loss of profits, and loss of goodwill to the Company.
	 
	 	(b)	 	During his employment with the Company and at all times thereafter, the
Executive shall not, directly or indirectly, disclose or disseminate any Trade Secret
to any other Person or lecture upon, publish articles concerning, or otherwise use or
employ any Trade Secret, except (in any case) to the extent required in the course of
his employment with the Company or by applicable law, rule, or regulation (including
legal process). In addition, all Trade Secrets and materials containing Trade Secrets
prepared or compiled by the Executive or furnished or made available to him during his
employment with the Company are the sole and exclusive property of the Company, and
none of those Trade Secrets or materials containing Trade Secrets may be retained by
the Executive upon or following any termination of his employment with the Company.
	 
	 	(c)	 	If the Executive’s employment with the Company terminates (other than because
of the Executive’s death or Disability) upon or before the termination of this
Agreement, the Executive shall not, at any time during the first year after that
termination of employment anywhere in the Restricted Territory, directly or indirectly
engage in any activity which, or any activity for any enterprise or entity a material
part of the business of which, is competitive with the business conducted, or proposed
during his employment with the Company to be conducted, by the Company. The activity
prohibited by the preceding sentence includes any kind of ownership (other than
ownership of securities of a publicly held entity of which the Executive owns less than
1% of a class of outstanding securities) in or of, or acting as a director, officer,
agent, employee, or consultant of or for, any enterprise or entity referred to in the
preceding sentence.
	 
	 	(d)	 	The Executive acknowledges and agrees that the restrictions in this Section 4
are reasonable and not unduly burdensome to him under the circumstances. The
Executive’s compliance with this Section 4 is a condition to the Company’s obligation
to continue to provide Welfare Benefits to the Executive under subsection (c) of
Section 3; the Company may refuse to continue providing those Welfare Benefits if there
is any such noncompliance. The Company shall have the burden of proof regarding any
question of the Executive’s compliance or noncompliance with this Section 4.










-3-









 












	5.	 	Executive’s Legal Expenses. The Company shall pay the Executive an amount equal to
the reasonable legal fees and other expenses incurred in good faith by him in obtaining or
retaining payments and benefits under this Agreement, including all such fees and expenses
(if any) in enforcing, in good faith, any right or benefit provided by this Agreement or in
connection with the contest or defense of any tax audit or proceeding by the Internal
Revenue Service to the extent that Section 4999 of the Code is alleged or claimed to apply
to any payment or benefit provided under this Agreement. The Company will be obligated
under the preceding sentence even if the Executive is not successful in any enforcement
claim or counterclaim by him, or in any such tax contest or defense, so long as he acted in
good faith. The Company shall make any payment required by this Section 5 within five
Business Days after Notice from the Executive requesting payment and providing such evidence
of the incurrence of those fees and expenses as the Company may reasonably request.
	 
	6.	 	No Mitigation. If a Severance Payment Event occurs, the Executive need not seek
other employment or attempt in any way to reduce the amount of any payments or benefits to the
Executive by the Company under this Agreement. The amount of the Severance Payment and,
except as stated in subsection (c) of Section 3 and in subsection (d) of Section 4, any other
severance benefit provided or to be provided to the Executive by the Company under Section 3
shall not be reduced by any compensation earned by the Executive as the result of any other
employment, consulting relationship, or other business activity.
	 
	7.	 	No Set-off. The Company’s obligations under this Agreement are absolute and
unconditional, and not subject to any set-off, counterclaim, recoupment, defense, or other
right that the Company or any Subsidiary may have against the Executive, except as stated in
subsection (c) of Section 3 and in subsection (d) of Section 4.
	 
	8.	 	Tax Withholding. The Company shall withhold from any payments or benefits under this
Agreement (whether or not otherwise acknowledged under this Agreement) all federal, state,
local, or other taxes as may be legally required to be withheld.
	 
	9.	 	Employment Status. Nothing in this Agreement provides the Executive with any
continued employment with the Company or any Subsidiary or shall interfere with the Company’s
right to terminate the Executive’s employment at any time and for any (or no) reason.
	 
	10.	 	No Exclusivity. Nothing in this Agreement prevents or limits the Executive’s
participation in any Plan for which the Executive may qualify or shall impair any rights that
the Executive may have under any other contract or agreement with the Company or any
Subsidiary.
	 
	11.	 	Governing Law; Jurisdiction. All matters or issues relating to the interpretation,
construction, validity, and enforcement of this Agreement shall be governed by the laws of
Texas, without giving effect to any choice-of-law principle that would cause the application
of the laws of any jurisdiction other than Texas. Jurisdiction and venue of




-4-









 






	 	 	any action or proceeding relating to this Agreement or any Dispute (to the extent
arbitration is not required under Section 12) shall be exclusively in Dallas County, Texas.
	 
	12.	 	Arbitration. Except as provided in subsection (h) of this Section 12, any Dispute
must be resolved by binding arbitration in accordance with the following:






	 	(a)	 	A Party may begin arbitration by filing a demand for arbitration in accordance
with the Arbitration Rules and concurrently Notifying the other Party of that demand.
If the Parties are unable to agree upon a panel of three arbitrators within ten days
after the demand for arbitration was filed (and do not agree to an extension of that
ten-day period), either Party may request the Dallas office of the American Arbitration
Association to appoint the arbitrator or arbitrators necessary to complete the panel in
accordance with the Arbitration Rules. Each arbitrator so appointed shall be deemed
accepted by the Parties as part of the panel.
	 
	 	(b)	 	The arbitration shall be conducted in the Dallas-Fort Worth, Texas metropolitan
area at a place and time agreed upon by the Parties with the panel, or if the Parties
cannot agree, as designated by the panel. The panel may, however, call and conduct
hearings and meetings at such other places as the Parties may agree or as the panel
may, on the motion of one Party, determine to be necessary to obtain significant
testimony or evidence.
	 
	 	(c)	 	The panel may authorize any and all forms of discovery upon a Party’s showing
of need that the requested discovery is likely to lead to material evidence needed to
resolve the Dispute and is not excessive in scope, timing, or cost.
	 
	 	(d)	 	The arbitration shall be subject to the Federal Arbitration Act and conducted
in accordance with the Arbitration Rules to the extent that they do not conflict with
this Section 12. The Parties and the panel may, however, agree to vary to provisions
of this Section 12 or the matters otherwise governed by the Arbitration Rules.
	 
	 	(e)	 	The arbitration hearing shall be held within 30 days after the appointment of
the panel. The panel’s final decision or award shall be made within 30 days after the
hearing. That final decision or award shall be made by unanimous or majority vote or
consent of the arbitrators constituting the panel, and shall be deemed issued at the
place of arbitration. The panel’s final decision or award shall be based on this
Agreement and applicable law; the panel may not act according to equity and conscience
or apply the law merchant.
	 
	 	(f)	 	The panel’s final decision or award may include injunctive relief in response
to any actual or impending breach of this Agreement or any other actual or impending
action or omission of a Party under or in connection with this Agreement.




-5-









 






	 	(g)	 	The panel’s final decision or award shall be final and binding upon the Parties, and
judgment upon that decision or award may be entered in any court having
jurisdiction. The Parties waive any right to apply or appeal to any court for
relief from the preceding sentence or from any decision of the panel made before the
final decision or award.
	 
	 	(h)	 	Nothing in this Section 12 limits the right of either Party to apply to a court
having jurisdiction to (i) enforce the agreement to arbitrate in accordance with this
Section 12, (ii) seek provisional or temporary injunctive relief, in response to an
actual or impending breach of the Agreement or otherwise so as to avoid a irrevocable
damage or maintain the status quo, until a final arbitration decision or award is
rendered or the Dispute is otherwise resolved, or (iii) challenge or vacate any final
arbitration decision or award that does not comply with this Section 12. In addition,
nothing in this Section 12 prohibits the Parties from resolving any Dispute (in whole
or in part) by agreement.






	13.	 	Company’s Successor. In addition to any obligations imposed by law upon any
successor to the Company, the Company shall require any successor to all or substantially all
of the Company’s business or assets (whether direct or indirect and whether by purchase,
reorganization, merger, share exchange, consolidation, or otherwise) to expressly assume and
agree to perform the Company’s obligations under this Agreement to the same extent, and in the
same manner, as the Company would be required to perform if no such succession had occurred.
This Agreement shall be binding upon, and inure to the benefit of, any successor to the
Company.






	14.	 	Executive’s Successor. This Agreement shall inure to the benefit of, and be
enforceable by, the Executive’s personal or legal representatives, administrators, successors,
executors, heirs, distributees, devisees, and legatees. If the Executive should die after a
Severance Payment Event, but before any payment or benefit to which the Executive is entitled
under this Agreement has been received by the Executive, all payments or benefits to which the
Executive would have been entitled had he continued to live (other than any such Welfare
Benefits that, by their terms, terminate upon the Executive’s death) shall be made or provided
in accordance with this Agreement to the representatives, executors, or administrators of the
Executive’s estate.






	15.	 	Restricted Assignment. Except as expressly provided in Sections 13 and 14, neither
Party may assign, transfer, or delegate this Agreement or any of its or his rights or
obligations under this Agreement without the prior written consent of the other Party. Any
attempted assignment, transfer, or delegation in violation of the preceding sentence shall be
void and of no effect.






	16.	 	Waiver and Amendment. No term or condition of this Agreement shall be deemed waived
other than by a writing signed by the Party against whom or which enforcement of the waiver is
sought. Without limiting the generality of the preceding sentence, a Party’s failure to
insist upon the other Party’s strict compliance with any provision of this Agreement or to
assert any right that a Party may have under this Agreement shall not be




-6-









 






	 	 	deemed a waiver of that provision or that right. Any written waiver shall operate only as
to the specific term or condition waived under the specific circumstances and shall not
constitute a waiver of that term or condition for the future or a waiver of any other term
or condition. No amendment or modification of this Agreement shall be deemed effective
unless stated in a writing signed by the Parties.
	 
	17.	 	Entire Agreement. This Agreement, including the Statement of Purpose, contains the
Parties’ entire agreement regarding the subject matter of this Agreement and supersedes all
prior agreements and understandings between them regarding that subject matter. The Parties
have made no agreements, representations, or warranties regarding the subject matter of this
Agreement that are not set forth in this Agreement.






	18.	 	Notice. Each notice or other communication required or permitted under this
Agreement shall be in writing and transmitted, delivered, or sent by personal delivery,
prepaid courier or messenger service (whether overnight or same-day), prepaid telecopy or
facsimile, or prepaid certified United States mail (with return receipt requested), addressed
(in any case) to the other Party at the address or number for that Party set forth below that
Party’s signature on this Agreement, or at such other address or number as the recipient has
designated by Notice to the other Party. Each notice or communication so transmitted,
delivered, or sent:






	 	(a)	 	in person, by courier or messenger service, or by certified United States mail
shall be deemed given, received, and effective on the date delivered to or refused by
the intended recipient (with the return receipt, or the equivalent record of the
courier or messenger, being deemed conclusive evidence of delivery or refusal), or
	 
	 	(b)	 	by telecopy or facsimile shall be deemed given, received, and effective on the
date of actual receipt (with the confirmation of transmission being deemed conclusive
evidence of receipt, except where the intended recipient has promptly Notified the
other Party that the transmission is illegible).






	 	 	Nevertheless, if the date of delivery or transmission is not a Business Day, or if the
delivery or transmission is after 5:00 p.m. on a Business Day, the notice or other
communication shall be deemed given, received, and effective on the next Business Day.
	 
	19.	 	Severability. If any provision of this Agreement is or becomes invalid or
unenforceable, that provision (to the extent invalid or unenforceable) shall be deemed amended
or reformed to the extent required to render it valid and enforceable, and the remainder of
this Agreement shall be unaffected and shall continue in effect.
	 
	20.	 	Counterparts. This Agreement may be signed in counterparts, with the same effect as
if both Parties had signed the same document. All counterparts shall be construed together to
constitute one, and the same, document.




-7-









 










The Parties have signed this Agreement to be effective as of the date set forth in the first
paragraph.




	 	 	 
	Company:	 	Executive:
	 
	 	 
	ACE CASH EXPRESS, INC.
	 	 
	 
	 	 
	/s/ JAY B. SHIPOWITZ

	 	/s/ WALTER E. EVANS
	 

	 	 
	Jay B. Shipowitz, CEO and President

	 	Walter E. Evans
	 
	 	 
	Address for Notice:

	 	Address for Notice:
	1231 Greenway Drive

	 	                                                            
	Suite 600

	 	                                        , Texas                     

	Irving, Texas 75038

	 	Telecopy no. (___) ______-______
	Telecopy no. (972) 550-5150
	 	 
	Attention: Chief Executive Officer
	 	 









-8-









 








Exhibit A




to




Change-in-Control Executive Severance Agreement



Defined Terms. In the Agreement, the following terms have the corresponding meanings:



“Acquiring Person” means any Person (other than an Excluded Person) who or which, alone or
together with all Affiliates and Associates of that Person, is the Beneficial Owner of 25% or more
of the Voting Securities of the Company then outstanding.



“Affiliate” and “Associate” have the respective meanings ascribed to them in Rule
12b-2 under the Exchange Act.



“Agreement” means the Change-in-Control Executive Severance Agreement between the Parties
of which this Exhibit A is a part.



“Arbitration Rules” means the Rules for Commercial Arbitration of the American Arbitration
Association in effect at the time of an arbitration of a Dispute.



“Base Salary” means the Executive’s annual salary, or base or fixed annual compensation, of
record from the Company or a Subsidiary that is his primary employer, excluding any amount received
or to be received under incentive compensation Plans, whether or not deferred.



“Beneficial Owner” means beneficial owner as defined in Rule 13d-3 under the Exchange Act.
(“Beneficially Owns” has the correlative meaning.) Any calculation of the number of Voting
Securities outstanding at any particular time, including for purposes of determining the particular
percentage of such outstanding Voting Securities of which any Person is the Beneficial Owner, shall
be made in accordance with the last sentence of Rule 13d-3(d)(1)(i) under the Exchange Act.



“Benefit Continuation Period” means 20 consecutive months after a Severance Payment Event.



“Board” means the Board of Directors of the Company.



“Business Day” means any Monday through Friday, excluding any such day on which banks are
authorized to be closed in Texas.



“Cause” means:





	(i)	 	the Executive’s willful failure to substantially perform his employment duties to the
Company, as such duties may exist from time to time, or comply with the written policies of
the Company (other than any such failure resulting from Disability or the Executive’s




A-9









 






	 	 	termination for Good Reason) which continues for a reasonable time after a Notice to the
Executive from the Board that (A) identifies the manner in which the Board believes that the
Executive has not substantially performed the Executive’s duties or complied with written
policies and (B) demands substantial performance or compliance within a specified reasonable
time; or
	 
	(ii)	 	the Executive’s willful engaging in conduct (including any illegal conduct) that is
demonstrably and materially injurious to the Company or any Subsidiary, monetarily or
otherwise.




For purposes of this definition, no act, or failure to act, by the Executive shall be deemed
“willful” unless done, or omitted to be done, by the Executive not in good faith and without
reasonable belief that the Executive’s act, or failure to act, was in the best interest of the
Company and its Subsidiaries. For the purpose of clause (i) of this definition, a “reasonable
time” shall be a time period determined by the Board, acting in good faith, to be sufficient under
normal circumstances to correct the deficient performance or compliance described in the Notice to
the Executive.



“Change in Control” means the occurrence of any one or more of the following:





	(i)	 	Any Person becomes an Acquiring Person, except as the result of (A) any acquisition of Voting
Securities of the Company by the Company or (B) any acquisition of Voting Securities of the
Company directly from the Company (as authorized by the Board).
	 
	(ii)	 	Individuals who constitute the Incumbent Board cease for any reason to constitute at least a
majority of the Board; and for this purpose, any individual who becomes a member of the Board
after the date of this Agreement whose election, or nomination for election by holders of the
Company’s Voting Securities, was approved by the vote of at least a majority of the
individuals then constituting the Incumbent Board shall be considered a member of the
Incumbent Board (except that any such individual whose initial election as director occurs as
the result of an actual or threatened election contest, within the meaning of Rule 14a-11
under the Exchange Act, or other actual or threatened solicitation of proxies or consents by
or on behalf of a Person other than the Board shall not be so considered).
	 
	(iii)	 	The consummation of a reorganization, merger, share exchange, consolidation, or sale or
disposition of all or substantially all of the assets of the Company unless, in any case, the
Persons who or which Beneficially Own the Voting Securities of the Company immediately before
that transaction Beneficially Own, directly or indirectly, immediately after the transaction,
at least 75% of the Voting Securities of the Company or any other corporation or other entity
resulting from or surviving the transaction (including a corporation or other entity which, as
the result of the transaction, owns all or substantially all of Voting Securities of the
Company or all or substantially all of the Company’s assets, either directly or indirectly
through one or more subsidiaries) in substantially the same proportion as their respective
ownership of the Voting Securities of the Company immediately before that transaction.




A-10









 






	(iv)	 	The Company’s shareholders approve a complete liquidation or dissolution of the Company.




“Code” means the Internal Revenue Code of 1986, as amended from time to time.



“Company” means Ace Cash Express, Inc., a Texas corporation.



“Disability” means the Executive’s inability, because of any physical or mental illness or
impairment, to substantially perform all of his employment duties to the Company, on a full-time
basis, for a period of at least 90 consecutive days, as reasonably determined by the Board, based
on advice from one or more competent medical doctors selected by the Company or any of its insurers
and acceptable to the Executive or his legal representative.



“Dispute” means any dispute, disagreement, claim, or controversy arising in connection with
or relating to the Agreement or the validity, interpretation, performance, breach, or termination
of the Agreement.



“Exchange Act” means the Securities Exchange Act of 1934, as amended from time to time.



“Excluded Person” means:





	(i)	 	the Executive or any group (within the meaning of Section 13(d)(3) of the Exchange Act) of
which the Executive is a member;
	 
	(ii)	 	any Person that controls (as defined in Rule 12b-2 under the Exchange Act) the Company as of
the date of the Agreement or any group of which any such Person is a member;
	 
	(iii)	 	any employee-benefit plan, or related trust, sponsored or maintained by the Company or any
of its Subsidiaries, or any trustee or other fiduciary thereof; or
	 
	(iv)	 	any corporation or other entity owned directly or indirectly by the shareholders of the
Company in substantially the same proportions as their ownership of the Voting Securities of
the Company.




“Executive” means Walter E. Evans.



“Good Reason” means:





	(i)   	 	the assignment to the Executive of any duties inconsistent in any material respect with the
Executive’s position (which, in this definition, includes status, office, title, and reporting
requirements), duties, or responsibilities as an officer of the Company or any Subsidiary, or
any other material diminution in the Executive’s position, authority, duties, or
responsibilities from those in effect as of three months before a Change in Control, other
than (in any case) an isolated and inadvertent action not taken in bad faith that is remedied
by the Company promptly after Notice thereof to the Company by the Executive;




A-11









 






	(ii)	 	the Company’s requiring the Executive to be based at any office or location farther than 50
miles from the Executive’s office or principal job location immediately before a Change in
Control, except for required business travel to an extent substantially consistent with the
Executive’s travel obligations immediately before the Change in Control;
	 
	(iii)	 	any failure to comply with and satisfy Section 13, if the Company’s successor has received
at least ten days’ prior written notice from the Company or the Executive of the requirements
of Section 13;
	 
	(iv)	 	a material reduction in the Executive’s Base Salary from the highest amount in effect at any
time within three months before a Change in Control;
	 
	(v)	 	the failure by the Company or any Subsidiary to continue in effect any compensation Plan in
which the Executive participates immediately before the Change in Control that is material to
the Executive’s total compensation, unless an equitable arrangement (embodied in an ongoing
substitute or alternative Plan or arrangement) has been made with respect to that Plan, or the
failure by the Company or any Subsidiary to continue the Executive’s participation in any such
compensation Plan (or in such substitute or alternative Plan or arrangement) on a basis not
materially less favorable to the Executive, both in terms of the amount of benefits provided
and the level of the Executive’s participation relative to other participants, than existed at
any time within three months before the Change in Control; or
	 
	(vi)	 	the failure by the Company or any Subsidiary to continue to provide the Executive with
benefits similar in all material respects to those enjoyed by the Executive under any Plan in
which the Executive was participating at any time within three months before the Change in
Control, the taking of action by the Company or any Subsidiary which would directly or
indirectly materially reduce any of such benefits or deprive the Executive of any material
fringe benefit enjoyed by the Executive at any time three months before the Change in Control,
or the failure by the Company or any Subsidiary to provide the Executive with the number of
paid vacation days to which the Executive is entitled on the basis of years of service with
the Company and its Subsidiary in accordance with the Company’s or a Subsidiary’s normal
vacation policy in effect at any time within three months before the Change in Control.




“Incumbent Board” means the members of the Board on the effective date of the Agreement
(subject, however, to clause (ii) of the definition of “Change in Control”).



“Notice” means a written communication complying with Section 18. (“Notify” has
the correlative meaning.)



“Parties” means, collectively, the Company and the Executive. (“Party” means
either the Company or the Executive.)



“Person” means any individual, firm, corporation, partnership, limited liability company,
trust, or other entity, including any successor (by merger or otherwise) of such entity.




A-12









 







“Plan” means any bonus, incentive compensation, savings, retirement, stock option, stock
appreciation, stock ownership or purchase, pension, deferred compensation, or Welfare Benefits
plan, policy, practice, program, or arrangement of (including any separate contract or agreement
with) the Company or any Subsidiary for its employees.



“Restricted Territory” means, collectively, Dallas County, Texas; each county (or
equivalent subdivision) of any state, district, or territory of the United States of America as to
which the Executive had supervisory responsibility for the Company during his employment with the
Company; and each county (or equivalent territory) adjacent to any of the preceding counties (or
equivalent territories).



“Severance Payment” means an amount equal to one and two-thirds (1 2/3) times the sum of:





	(i)	 	the Executive’s highest Base Salary in effect at any time within three months before the
Change in Control;
	 
	(ii)	 	the highest amount of the annual automobile allowance payable to the Executive within three
months before the Change in Control; and
	 
	(iii)	 	an amount equal to the average of the annual bonuses or incentive cash compensation paid or
payable to the Executive by the Company and any Subsidiary for the three fiscal years of the
Company preceding the fiscal year in which the Change in Control occurs, but in any event no
less than the Executive’s targeted bonus or amount of incentive cash compensation for the
fiscal year in which the Change in Control occurs (or if not yet determined for that fiscal
year before the Change in Control occurs, the Executive’s targeted bonus or amount of
incentive compensation for the preceding fiscal year).




For clause (iii) of this definition: (a) if the Executive has not been employed by the
Company and a participant in a bonus or incentive cash compensation Plan during the three completed
fiscal years of the Company before the Change in Control, the average of the annual bonuses or
incentive cash compensation shall be calculated over the completed fiscal years of the Company
during which the Executive was so employed and a participant in a bonus or incentive cash
compensation Plan; (b) the calculation of the average of the annual bonuses or incentive cash
compensation of the Executive shall include a fiscal year during which the Executive was employed
by the Company and a participant in a bonus or incentive cash compensation Plan even if the
Executive did not earn any bonus or incentive cash compensation for that fiscal year; (c) the bonus
or incentive cash compensation paid or payable to the Executive for only part of a fiscal year of
the Company shall be annualized (on the same basis as the one on which the bonus or compensation
was prorated) for that fiscal year to calculate the average; and (d) the “targeted” bonus or
incentive cash compensation for the fiscal year of the Company in which the Change in Control
occurs shall be the amount identified as a “target” by the Board (or its compensation committee
that administers the bonus or incentive cash compensation Plan) for the Executive, or if no amount
is identified as a “target,” the “targeted” amount shall be the amount of the bonus or incentive
cash compensation that the Executive could earn for that fiscal year if the business plan for the
Company or the Executive, or both, is satisfied (but not exceeded).




A-13









 







“Severance Payment Event” means the occurrence of a Change in Control coincident with or
followed, at any time before the end of the 24th month immediately following the month in which the
Change in Control occurred, by the termination of the Executive’s employment with the Company for
any reason other than (a) by the Executive without Good Reason, (b) by the Company because of
Disability or for Cause, or (c) by the death of the Executive. Any transfer of the Executive’s
employment from the Company to a Subsidiary, from a Subsidiary to the Company, or from one
Subsidiary to another Subsidiary is not a termination of the Executive’s employment by the Company
for purposes of the Agreement (though any such transfer might, depending on the circumstances,
constitute or result in a termination of employment by the Executive for Good Reason).



“Stock Award” means a stock option, stock appreciation right, restricted stock grant,
performance share plan, or any other agreement in which the Executive has, or will (by the passage
of time only, not based on the Executive’s performance) have, (a) an interest in capital stock of
the Company or a right to obtain capital stock or an interest in capital stock of the Company, or
(b) an interest or right the economic value of which depends solely on the performance of the
capital stock of the Company.



“Subsidiary” means a corporation or other entity, whether incorporated or unincorporated,
of which at least a majority of the Voting Securities is owned, directly or indirectly, by the
Company.



“Total Severance Benefits” means the Severance Payment and all other payments and benefits
received or to be received by the Executive under the Agreement and all payments and benefits (if
any) to which the Executive may be entitled under any Plan upon or as the result of a Change in
Control or the termination of his employment with the Company, or both.



“Trade Secrets” means any and all information and materials (in any medium) that are
proprietary to the Company or are treated as confidential by the Company as part of or relating to
all or any portion of the Company’s business, including information and materials about the
products and services offered, or the needs of customers served, by the Company; compilations of
information, records and specifications, processes, programs, and systems of the Company; research
of or for the Company; and methods of doing business of the Company.



“Voting Securities” means securities or other interests having by their terms
ordinary voting power to elect members of the board of directors of a corporation or individuals
serving similar functions for a noncorporate entity.



“Welfare Benefits” means medical, prescription, dental, disability, employee life, group
life, accidental death, and travel accident insurance (whether funded by insurance policy or
self-insured by the Company or any Subsidiary) provided or arranged by the Company or any
Subsidiary to be provided to its employees.



“Welfare Benefit Plan” means any Plan that provides any Welfare Benefits.




A-14









 







Interpretive Matters. In the interpretation of the Agreement, except where the context
otherwise requires:





	(a)	 	“including” or “include” does not denote or imply any limitation;
	 
	(b)	 	“or” has the inclusive meaning “and/or”;
	 
	(c)	 	the singular includes the plural, and visa a versa, and each gender includes each of the
others;
	 
	(d)	 	captions or headings are only for reference and are not to be considered in interpreting the
Agreement;
	 
	(e)	 	“Section” refers to a Section of the Agreement, unless otherwise stated in the Agreement;
	 
	(f)	 	“month” refers to a calendar month; and
	 
	(g)	 	a reference to any statute, rule, or regulation includes any amendment thereto or any
statute, rule, or regulation enacted or promulgated in replacement thereof.






A-15