<PAGE> 1
SCHEDULE 14A
(RULE 14A-101)
INFORMATION REQUIRED IN PROXY STATEMENT
SCHEDULE 14A INFORMATION
PROXY STATEMENT PURSUANT TO SECTION 14(a)
OF THE SECURITIES EXCHANGE ACT OF 1934
Filed by the Registrant [X]
Filed by a party other than the Registrant [ ]
Check the appropriate box:
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[ ] Preliminary proxy statement
[X] Definitive proxy statement
[ ] Definitive additional materials
[ ] Soliciting material pursuant to Rule 14a-11(c) or Rule 14a-12
Credit Depot Corporation
(Name of Registrant as Specified in Its Charter)
(Name of Person(s) Filing Proxy Statement)
Payment of filing fee (Check the appropriate box):
[X] No fee required.
[ ] Fee computed on table below per Exchange Act Rules 14a-6(i)(4) and 0-11.
(1) Title of each class of securities to which transaction applies:
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(2) Aggregate number of securities to which transaction applies:
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(3) Per unit price or other underlying value of transaction computed
pursuant to Exchange Act Rule 0-11:(1)
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(4) Proposed maximum aggregate value of transaction:
[ ] Check box if any part of the fee is offset as provided by Exchange Act
Rule 0-11(a)(2) and identify the filing of which the offsetting fee was paid
previously. Identify the previous filing by registration statement number, or
the form or schedule and the date of its filing.
(1) Amount previously paid:
- --------------------------------------------------------------------------------
(2) Form, schedule or registration statement no.:
- --------------------------------------------------------------------------------
(3) Filing party:
- --------------------------------------------------------------------------------
(4) Date filed:
- --------------------------------------------------------------------------------
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(1) Set forth the amount on which the filing fee is calculated and state how it
was determined.
<PAGE> 2
CREDIT DEPOT CORPORATION
700 WACHOVIA CENTER
GAINESVILLE, GEORGIA 30501
---------------------
NOTICE OF SPECIAL MEETING OF SHAREHOLDERS
TO BE HELD ON OCTOBER 24, 1997
---------------------
To the holders of Common Stock of Credit Depot Corporation:
Notice is hereby given that the Special Meeting of Shareholders of
CREDIT DEPOT CORPORATION (the "Company"), will be held at the Lanier Centre
Hotel, 400 E.E. Butler Parkway, Gainesville, Georgia on October 24, 1997, at
2:00 p.m., local time, for the following purposes:
1. To consider and act upon a proposal to amend the Company's
Certificate of Incorporation. The Amendment to the Certificate of
Incorporation (a form of which is attached hereto as Exhibit A) will
effect a reverse stock split in which each five shares of issued common
stock, par value $.001 per share, of the Company, whether issued and
outstanding or held in treasury, will be reclassified and changed into
one share of new common stock ("New Common Stock"), par value $.001 per
share, of the Company.
2. To consider and act upon a proposal to amend the Certificate
of Designation of 9% Cumulative Convertible Preferred Stock (the "9%
Preferred Stock"). The Amendment to the Certificate of Designation (a
form of which is attached hereto as Exhibit B) will eliminate certain
protective provisions currently contained in the Certificate of
Designation, (i) which restrict payment of dividends for any period on
capital stock ranking pari passu with 9% Preferred Stock without
declaring and paying dividends on the 9% Preferred Stock for such period
and (ii) which restrict the issuance of preferred stock ranking senior
with respect to liquidation preference or dividend rights to the 9%
Preferred Stock without the consent of the holders of a majority of the
outstanding 9% Preferred Stock.
3. To consider and take action upon such other matters as may
properly come before the meeting and any adjournment or adjournments
thereof.
The Board of Directors recommends a vote FOR each proposal. Questions
regarding the proposals can be directed to D.F. King & Co. at 1-800-848-3094.
The close of business on September 19, 1997, has been fixed as the record date
for the determination of shareholders entitled to notice of and to vote at the
meeting. The transfer books of the Company will not be closed.
All shareholders are cordially invited to attend the meeting. Whether or
not you expect to attend, you are respectfully requested to sign, date and
return the enclosed proxy promptly in the accompanying envelope which requires
no postage if mailed in the United States.
By Order of the Board of Directors,
/s/ John C. Thomas
John C. Thomas, Secretary
September 19, 1997
<PAGE> 3
CREDIT DEPOT CORPORATION
700 WACHOVIA CENTER
GAINESVILLE, GEORGIA 30501
---------------------
PROXY STATEMENT
SPECIAL MEETING OF SHAREHOLDERS
TO BE HELD OCTOBER 24, 1997
---------------------
This Proxy Statement is furnished in connection with the solicitation by
the Board of Directors of Credit Depot Corporation (the "Company") of proxies to
be voted at the Special Meeting of Shareholders to be held at the Lanier Centre
Hotel, 400 E.E. Butler Parkway, Gainesville, Georgia on October 24, 1997, at
2:00 p.m. local time, and at any adjournment or adjournments thereof, for the
purposes set forth in the accompanying Notice of Special Meeting of
Shareholders. Any shareholder giving such a proxy may revoke it by written
notice to the Secretary of the Company at the above-stated address at any time
before it is exercised. Attendance at the meeting will not have the effect of
revoking the proxy unless such written notice is given, or unless the
shareholder votes by ballot at the meeting.
The approximate date on which this Proxy Statement and the accompanying
form of proxy will first be sent or given to the Company's shareholders is
September 22, 1997.
VOTING SECURITIES
Only holders of shares of Common Stock, $.001 par value per share (the
"Common Stock"), of record at the close of business on September 19, 1997, are
entitled to vote at the meeting. On the record date, the Company had issued and
outstanding 4,072,761 shares of Common Stock. Each outstanding share of Common
Stock is entitled to one vote upon all matters to be acted upon at the meeting.
The presence, in person or by proxy, of the holders of shares representing a
majority of the outstanding shares of Common Stock will constitute a quorum.
The affirmative vote of a majority of the shares of Common Stock is
necessary to approve the amendment to the Company's Certificate of Incorporation
to effect the reverse stock split (the "Reverse Stock Split"), and to approve
the amendment to the Certificate of Designation, Preferences and Rights of 9%
Cumulative Convertible Preferred Stock, eliminating certain protective
provisions currently contained therein (the "Amendment to the Certificate of
Designation"). Abstentions and broker non-votes are counted for purposes of
determining the presence or absence of a quorum for the transaction of business.
If a shareholder, present in person or by proxy, abstains on any matter, the
shareholder's Common Stock will not be voted on such matter. Accordingly, an
abstention from voting on a matter by a person present in person or represented
by proxy at the Meeting has the same legal effect as a vote against the matter.
Broker non-votes will also have the same effect as a vote against the Reverse
Stock Split and the Amendment to the Certificate of Designation.
If the enclosed proxy is properly executed and returned, the Common Stock
represented thereby will be voted in accordance with the instructions thereon.
If no instructions are indicated, the Common Stock represented thereby will be
voted FOR approval of the Reverse Stock Split and the Amendment to the
Certificate of Designation.
YOUR VOTE IS IMPORTANT. BECAUSE THE AFFIRMATIVE VOTE OF A MAJORITY OF THE
OUTSTANDING SHARES OF COMMON STOCK IS NECESSARY FOR APPROVAL OF THE PROPOSALS,
YOUR FAILURE TO VOTE WILL HAVE THE SAME EFFECT AS A VOTE AGAINST THE PROPOSALS.
ACCORDINGLY, YOU ARE URGED TO SIGN AND RETURN THE ACCOMPANYING PROXY CARD
WHETHER OR NOT YOU PLAN TO ATTEND THE MEETING. If you do attend, you may vote by
ballot at the meeting, thereby canceling any proxy previously given.
<PAGE> 4
PRINCIPAL SHAREHOLDERS
The following table sets forth certain information regarding ownership of
Common Stock for (i) each person known by the Company to own beneficially five
percent or more of the outstanding shares of the Company's Common Stock, (ii)
each director of the Company, (iii) each of the executive officers of the
Company, and (iv) all officers and directors of the Company as a group as of
September 19, 1997. This table does not give effect to the Reverse Stock Split.
As a result of the Conversion Offer, the number of shares of outstanding Common
Stock beneficially owned by principal shareholders of the Company (assuming that
they convert their shares in the Conversion Offer) will be increased. Set forth
below in the "As Adjusted" column is the number of shares of Common Stock that
beneficial owners of 5% of the Common Stock will beneficially own after giving
effect to the Conversion Offer.
<TABLE>
<CAPTION>
SHARES BENEFICIALLY OWNED(1)
NAME AND ADDRESS OF BENEFICIAL -----------------------------------------------
OWNER OR IDENTITY OF GROUP NUMBER PERCENT OF CLASS AS ADJUSTED(2)
------------------------------ --------- ---------------- --------------
<S> <C> <C> <C>
Gerald F. Sullivan(3).............................. 355,000(12) 8.02 *
Craig J. Brunet(3)................................. 160,000(13) 3.78 *
Samuel R. Dunlap, Jr.(3)........................... 399,064(14) 8.92 *
Joel C. Williams(3)................................ 90,000(15) 2.16 *
Samuel Scott Hemingway(3).......................... 125,000(16) 2.98 *
Carlos R. Munoz(3)................................. 20,000(17) .48 *
John C. Thomas, Jr.(3)............................. 167,584(18) 3.95 *
Donald S. Sigler................................... 383,688 8.61 *
3242 Dunlap Drive
Gainesville, Georgia 30506
Greenwich Capital Products, Inc.................... 300,000(19) 6.86 *
600 Steamboat Road
Greenwich, CT. 06830
NewSouth Special Equities, L.P..................... 920,000(20) 18.43 *
1000 Ridgeway Loop Rd.
Memphis, Tennessee 38117
Jackt Holdings Corp.(4)............................ 300,000(21) 6.86 *
Ranier Heubach(5).................................. 551,250(22) 11.92 1,746,635
VPM Verwaltungs AG(6).............................. 854,639(23) 17.34 1,993,101
Kingsley & Company(7).............................. 393,750(24) 8.82 1,247,596
Muico & Company(8)................................. 315,000(25) 7.18 998,077
Dr. Dieter Quast(9)................................ 452,500(26) 10.00 2,166,346
Arkansas Teachers Retirement System(10)............ 360,000(27) 8.12 1,800,000
Michigan Municipal Employee Retirement
System(10)....................................... 800,000(28) 16.42 4,000,000
Lancer Partners, LP................................ 660,000(29) 13.95 3,300,000
237 Park Avenue
New York, NY 10017
The Intergroup Corporation(35)..................... 870,000(30) 17.60 *
Portsmouth Square(35).............................. 350,000(31) 7.91 *
Santa Fe Financial(35)............................. 870,000(32) 17.60 *
</TABLE>
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<PAGE> 5
<TABLE>
<CAPTION>
SHARES BENEFICIALLY OWNED(1)
NAME AND ADDRESS OF BENEFICIAL -----------------------------------------------
OWNER OR IDENTITY OF GROUP NUMBER PERCENT OF CLASS AS ADJUSTED(2)
------------------------------ --------- ---------------- --------------
<S> <C> <C> <C>
E. H. Arnold....................................... 500,000(33) 10.93 *
c/o Taglich Brothers,
D'Amadeo & Wagner
100 Wall Street
New York, NY 10005
Thieme Fonds International(11)..................... 1,881,250(34) 31.60 *
2 Place de Metz L-1930
Luxembourg
All executive officers and directors as a group (9
persons)......................................... 1,516,648(36) 27.13 *
</TABLE>
- ---------------
* Less than 1%
(1) Except as otherwise indicated, each of the parties has sole voting and
investment power over the shares owned.
(2) Adjusted to give effect to the conversion of all 9% Preferred Stock and/or
Secured Notes held by such beneficial owner; an "*" indicates no change in
beneficial ownership.
(3) c/o Credit Depot Corporation, 700 Wachovia Center, Gainesville, Georgia
30501.
(4) c/o Promena AG, Rheinstrasse 81, CH-4133 Pratteln 1, Switzerland.
(5) Unterberstrasse 104, A-5084, Grossgrnain, Salzburg, Austria.
(6) Therwilerstrasse 10, CH-4103 Bottmingen, Switzerland.
(7) c/o Quintus Trust, Mr. Charles T. Collis Sr. & Mr. Werner Hoffer, TTEE,
Coyers, Dill & Pearman, Clarendon House, Church Street, Hamilton, Bermuda.
(8) c/o Putnam Investments, One Post Office Square, 11 FL, Boston, MA 02109.
(9) c/o Soriano-Eupen GmbH, Friesenplatz 5, D-50672 Keoln, Germany.
(10) c/o KCM, 10829 Olive Blvd., St. Louis, MO 63141-7739.
(11) c/o Thieme Consulting, Inc. 1370 Avenue of the Americas, New York, New York
10019, Attention: Heiko Thieme. Heiko Thieme is the President of Thieme
Fonds International.
(12) Includes Common Stock issuable on exercise of options to purchase 293,750
shares of Common Stock under the Company's 1990 Stock Option Plan and the
1993 Plan (collectively, the "Plans") exercisable within 60 days and
options to purchase 55,000 shares of Common Stock that have been granted
outside the Plans exercisable within 60 days. Does not include 11,250
shares issuable on exercise of options of Common Stock issuable on exercise
of options which are not exercisable within 60 days.
(13) Includes Common Stock issuable on exercise of options to purchase 155,000
shares of Common Stock under the Plans exercisable within 60 days.
(14) Includes Common Stock issuable on exercise of options to purchase 85,000
shares of Common Stock under the Plans exercisable within 60 days.
(15) Includes Common Stock issuable on exercise of options to purchase 90,000
shares under the Plans exercisable within 60 days.
(16) Includes Common Stock issuable on exercise of options to purchase 125,000
shares of Common Stock under the Plans exercisable within 60 days.
(17) Includes Common Stock issuable on exercise of options to purchase 20,000
shares of Common Stock under the Plans exercisable within 60 days.
(18) Includes Common Stock issuable on exercise of options to purchase 85,000
shares of Common Stock under the Plans exercisable within 60 days and
options to purchase 45,000 shares of Common Stock that have been granted
outside the Plans exercisable within 60 days.
(19) Represents immediately exercisable warrants to purchase 300,000 shares of
Common Stock.
(20) Represents 920,000 shares of Common Stock issuable upon the conversion of a
10% convertible warehouse line.
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<PAGE> 6
(21) Represents 300,000 shares of Common Stock issuable upon the conversion of
convertible participations and warrants.
(22) Represents 551,250 shares of Common Stock issuable upon the conversion of
9% Preferred Stock and warrants.
(23) Represents 525,000 shares of Common Stock issuable upon the conversion of
9% Preferred Stock, and 329,639 shares issuable on exercise of immediately
exercisable warrants.
(24) Represents 393,750 shares of Common Stock issuable upon the conversion of
9% Preferred Stock and warrants.
(25) Represents 315,000 shares of Common Stock issuable upon the conversion of
9% Preferred Stock.
(26) Represents 400,000 shares of Common Stock issuable upon the conversion of
10% convertible debt and 52,500 shares of Common Stock issuable upon
conversion of preferred stock.
(27) Represents 360,000 shares of Common Stock issuable upon conversion of 10%
convertible debt.
(28) Represents 800,000 shares of Common Stock issuable upon the conversion of
10% convertible debt.
(29) Represents 660,000 shares of Common Stock issuable upon the conversion of
10% convertible debt.
(30) Represents 870,000 shares of Common Stock issuable upon conversion of 11%
Series B Convertible Preferred Stock and warrants.
(31) Represents 350,000 shares of Common Stock issuable upon conversion of 11%
Series B Convertible Preferred Stock and warrants.
(32) Represents 870,000 shares of Common Stock issuable upon conversion of 11%
Series B Convertible Preferred Stock and warrants.
(33) Represents 500,000 shares of Common Stock issuable upon conversion of 10%
secured promissory note and warrants.
(34) Represents 1,750,000 shares of Common Stock issuable upon conversion of 10%
secured promissory notes and exercise of warrants and 131,250 shares
issuable upon conversion of 9% Preferred Stock and exercise of warrants.
(35) 2121 Avenue of the Stars, Suite 2020, Los Angeles, CA 90067.
(36) Includes 930,250 shares of Common Stock issuable upon exercise of options
under the Plan exercisable within 60 days. Does not include 123,500 shares
issuable on exercise of options to purchase Common Stock not exercisable
within 60 days.
The Company is currently conducting discussions with Heiko Thieme, the
President of Thieme Fonds, International, the beneficial owner of a 31.6% of the
Common Stock of the Company, concerning Mr. Thieme's serving as a director or
Chairman of the Board of the Company. The election of Mr. Thieme to either of
these positions is subject to the approval of the Board of Directors and there
can be no assurance that Mr. Thieme will be elected to either of such positions.
PROPOSAL 1
PROPOSAL TO AMEND THE COMPANY'S RESTATED CERTIFICATE
OF INCORPORATION TO EFFECT THE
ONE-FOR-FIVE REVERSE COMMON STOCK SPLIT
The Board of Directors has adopted and recommended to the shareholders
approval of an amendment to the Company's Certificate of Incorporation to effect
the Reverse Stock Split, pursuant to which each five shares of Common Stock of
the Company, whether issued or held in treasury, will be reclassified and
changed into one share of Common Stock of the Company.
The Company believes that it is necessary to complete the Company's
recapitalization pursuant to a conversion offer (the "Conversion Offer") being
made to holders of the 10% Convertible Secured Notes (the "Secured Notes") and
the 9% Preferred Stock in order to enable the Company to raise additional
capital to meet its operating expenses and continue as a going concern. The
Company does not have sufficient authorized Common Stock to permit it to issue
the shares of Common Stock pursuant to the Conversion Offer. In addition, the
Company intends to commence a proposed private placement of a maximum of
$5,000,000 of 11% Convertible Preferred Stock, convertible into Common Stock at
$.40 per share (the
4
<PAGE> 7
"Proposed Financing"). In connection therewith, the conversion price of the
16,740 shares of 11% Preferred Stock currently outstanding (having an aggregate
liquidation preference of $1,674,000) will also be adjusted to $.40 per share.
The Company also requires additional authorized Common Stock to be reserved for
issuance on conversion of the 11% Preferred Stock proposed to be issued in the
Proposed Financing. The Reverse Stock Split will increase the number of
authorized shares of Common Stock available for issuance by the Company and the
Conversion Offer and the Proposed Financing are conditioned, among other things,
on the Reverse Stock Split.
In addition, on September 3, 1997, the last reported sale price of the
Common Stock on the Nasdaq SmallCap Market was $.75 per share. The Company's
Common Stock does not currently meet the requirements for continued listing on
the Nasdaq SmallCap Market, which requires a minimum bid price of the Common
Stock of at least $1.00 per share or more and a minimum of $2,000,000 in net
tangible assets. The Board of Directors believes that the Reverse Stock Split,
by decreasing the number of shares outstanding, should increase the bid price
per Common Stock, and is necessary in order to permit the Company to meet the
requirements for continued listing on the Nasdaq SmallCap Market. The Board of
Directors also believes that the recent per share price of the Common Stock has
affected the marketability of the existing shares. The Company believes that,
frequently, following a reverse stock split, a company's stock price will fail
to reach or sustain a price equal to the pre-split price multiplied by the
reverse split multiple.
As a means of increasing the number of shares of authorized Common Stock
available for issuance by the Company, increasing the price per share of Common
Stock to permit the Company's Common Stock to continue to be listed on the
Nasdaq SmallCap Market, improving marketability of the Common Stock and based on
other considerations, on August 20, 1997, the Board of Directors approved,
subject to the stockholder approval solicited hereby, a proposal to amend the
Certificate of Incorporation to effect the Reverse Stock Split.
Although the Company's Board of Directors believes as of the date of this
Proxy Statement that the one-for-five Reverse Stock Split is advisable, the
Reverse Stock Split may be abandoned by the Board of Directors at any time
before, during, or after the Special Meeting. In addition, depending upon
prevailing market conditions, the Board of Directors may deem it advisable to
implement the Reverse Stock Split and concurrently declare a stock-for-stock
dividend in a ratio to be determined, the latter of which does not require
stockholder approval. Depending upon the amount of any such stock-for-stock
dividend, this would partially offset the decrease in the number of issued
shares resulting from the one-for-five Reverse Stock Split, potentially to the
extent that the result will be the same as if a one-for-four, one-for-three or
other reverse stock split ratio had been approved by the Company's stockholders.
The net effect of implementation of the Reverse Stock Split and any subsequent
dividend declarations described herein will not result in more than five shares
being surrendered for each share of New Common Stock.
REASONS FOR THE REVERSE STOCK SPLIT PROPOSAL
By its nature, the Company's business requires continual access to
short-term and long-term sources of debt and equity capital. The Company
requires cash for loan originations and loan repurchases, as well as payment of
operating and interest expense, capital expenditures, and start-up expenses for
expansion into new geographic areas. Recently, the Company has sold mortgage
loans to a major loan securitizer pursuant to which the premium received by the
Company on sale has been in the form of an interest only strip receivable. As a
result, the Company's gain on sale of mortgage loans was not paid in cash and
instead was in the form of a receivable which is converted to cash over the
lives of the mortgage loans sold. While the Company believes that sales of loans
on these terms results in a higher premium and increased revenues on the sale of
mortgage loans, the sale of mortgage loans on such terms has also increased the
Company's need for additional capital.
In recent years, the Company has taken steps to raise additional financing
in order to meet the Company's capital requirements. In 1995, the Company
completed an offering of $3 million of convertible mortgage participations. In
October 1995, the Company issued $6,400,000 of 9% Preferred Stock, $2,500,000 of
which was issued on conversion of the convertible mortgage participations. In
January 1996 the Company obtained a $1,050,000 term loan which was repaid in
August 1996. In February 1996, the Company sold
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<PAGE> 8
$500,000 of convertible mortgage participations. In the period of June through
August 1996, the Company issued $9 million of 10% Convertible Secured Notes. In
April, 1997 the Company sold $1,674,000 of 11% Convertible Redeemable Preferred
Stock. These financings provided the Company with capital to expand its mortgage
loan origination, expand its offices for mortgage loan originations and meet its
working capital. In addition, the Company has been advanced $2,236,000 against
the interest only strip receivable pursuant to its agreement with the mortgage
loan securitizer. In addition, the Company has warehouse lines of credit with
two providers of such credit pursuant to which the Company can obtain
$13,500,000 of credit for the origination or acquisition of mortgage loans which
enable the Company to continue its mortgage lending activities (the "Warehouse
Line of Credit"). In July and August 1997, the Company received the proceeds of
a secured bridge loan (the "Bridge Loan") in the principal amount of $850,000,
bearing interest at the rate of 10% per annum and convertible into Common Stock
at the rate of $.40 per share of Common Stock.
In the Company's fiscal year ended June 30, 1997, the Company realized a
net loss of approximately $3,363,000, of which $3,210,000 was realized in the
last six months. The loss in the second half of the fiscal year 1997 was the
result of certain factors. The Company had a marginally profitable quarter
ending December 31, 1996 and began a rapid origination expansion program in
January 1997, increasing its sales force from 13 persons in December 1996 to 24
persons in April 1997. Total employee headcount went from 67 to 85 persons
during the same period as support personnel were added for the new salespeople.
To help supplement loan originations when a majority of the sales force was
recently hired, the Company executed several bulk purchases of loans. When these
loans were eventually sold, the profit margins received on them were
significantly less than anticipated. A contributing factor to the reduced margin
on the sale of the bulk purchase loans and other loans sold was the relatively
sharp rise in interest rates which occurred during the Company's third fiscal
quarter ending March 31, 1997. The Company was unable to increase its rates on
mortgage loans originated or purchased by it or increase its loan volumes to
offset the reduced margins at the time of sale. The Company also experienced
working capital shortages. Because the Company had no warehouse lines of credit
until June 1997 and was funding all of its loan production with working capital,
loan production was negatively impacted during these shortages. Many of the
factors resulting in the loss for the quarter ending March 31, 1997 carried
forward into the fourth fiscal quarter. The significant expense of the expansion
effort was not matched by a corresponding increase in revenues. Several of the
less productive offices opened during this expansion were recently closed,
although not in time to positively affect the financial results for the year
ended June 30, 1997. As a result of these losses, which were not anticipated by
the Company at the time it completed its sale of the 11% Convertible Redeemable
Preferred Stock in April, 1997, the Company requires additional capital to meet
its working capital requirements and to increase its mortgage loan originations.
At August 31, 1997, the Company had approximately $100,000 of cash and liquid
assets, all of which was provided pursuant to the Bridge Loan. The holders were
issued warrants to purchase 2,875,000 shares of Common Stock at an exercise
price of $.40 per share, subject to adjustment, among others, in the event of
issuances of Common Stock by the Company at prices below the exercise price. The
loan is due October 31, 1997.
The Company requires additional short term bridge financing to enable it to
continue to meet its working capital requirements. In addition, the Company
requires additional longer term financing to meet its working capital
requirements prior to such time, if ever, that it can generate positive cash
flow from its operations and to repay the Bridge Loan. The Company also believes
that it is necessary to obtain a larger warehouse line of credit at some point
in the future in order to meet its long term loan production targets.
Accordingly, the Company requires significant additional financing. The Company
believes that it is necessary to effect a recapitalization to reduce or
eliminate its outstanding Secured Notes and 9% Preferred Stock to enable the
Company to obtain such required financing.
The Company intends to commence a conversion offer (the "Conversion Offer")
pursuant to which it will offer to issue additional shares of its Common Stock
to holders of its Secured Notes and 9% Preferred Stock if they elect to convert
their 9% Preferred Stock and Secured Notes pursuant to the Conversion Offer.
Pursuant to the Conversion Offer, the 9% Preferred Stock, which is currently
convertible at the rate of eight shares of Common Stock for each share of 9%
Preferred Stock (or $2.50 per share) will be convertible at the option of the
Holder into 30.8 shares of Common Stock for each share of 9% Preferred Stock
resulting from a
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<PAGE> 9
reduction of the Conversion Price to $.65 per share of Common Stock (plus such
additional number shares of Common Stock issuable pursuant to conversion of 9%
Preferred Stock dividends declared and accrued). In addition, pursuant to the
Conversion Offer, the Secured Notes, which are currently convertible at the rate
of 400 shares of Common Stock for each $1,000 principal amount of Secured Notes
(or $2.50 per share) will be convertible at the option of the Holder into 2,000
shares of Common Stock for each $1,000 principal amount of Secured Notes
resulting from a reduction in the conversion price to $.50 per share of Common
Stock (plus such additional number of shares of Common Stock issuable pursuant
to conversion of accrued interest payable on the Secured Notes). As a result, if
all of the holders of the 9% Preferred Stock and Secured Notes accept the
Conversion Offer, the Company will issue an aggregate of 26,122,308 shares of
Common Stock (not including shares issuable pursuant to conversion of accrued
dividends and interest) pursuant to the Conversion Offer and $8,215,000 of
Secured Notes and 315,000 shares of 9% Preferred Stock (having an aggregate
liquidation preference of $6,300,000) will be cancelled. The Conversion Offer is
conditioned on at least 75% of the holders of the 9% Preferred Stock and 75% of
the holders of Secured Notes accepting the Conversion Offer, although this
condition may be waived by the Company. The Conversion Offer is also conditioned
on the Reverse Stock Split. If the Reverse Stock Split is not approved, the
Company will not have sufficient authorized shares of Common Stock for issuance
pursuant to the Conversion Offer. Upon completion of the Conversion Offer, the
Company intends to seek to raise a maximum of $3,000,000 through the offer of
additional shares of 11% Convertible Redeemable Preferred Stock which will be
convertible into Common Stock at the rate of $.40 per share. The Conversion
Offer may be modified by the Board of Directors of the Company without approval
of the stockholders. Additionally, the approval of the stockholders of the
Reverse Stock Split is not conditioned on the Conversion Offering being
consummated in the form set forth above. There can be no assurance that the
Conversion Offer or the Proposed Financing will be consummated.
The Company believes that the proposed changes in the capital structure
pursuant to the Conversion Offer are necessary to enable the Company to raise
additional financing and obtain a larger warehouse credit facility. The Company
believes that the amount of secured and unsecured indebtedness, unsecured
indebtedness and preferred stock (approximately $7,240,000 of secured
indebtedness of unsecured indebtedness and 331,740 shares of preferred stock
having an aggregate liquidation preference of $7,974,000), makes it more
difficult for the Company to raise equity capital. The amendment to the
Certificate of Incorporation to effect the Reverse Stock Split is a condition to
the Conversion Offer and the Proposed Financing. If the Company is unable to
obtain additional financing, it will be unable to meet its operating expenses
and continue and expand its current mortgage loan origination and purchase
activities and fulfill its business objectives. However, there can be no
assurance that, even if the Reverse Stock Split effected, the Conversion Offer
will be consummated and the Company will be able to raise sufficient capital and
obtain sufficient credit facilities to meet its cash requirements and,
ultimately, to become profitable.
The Reverse Stock Split will increase the number of shares available for
future issuances. The Company is authorized to issue 35,000,000 shares of Common
Stock. The Reverse Stock Split, by decreasing the number of outstanding shares
of Common Stock and the number of shares of Common Stock the holders of
outstanding convertible securities options and warrants are entitled to
purchase, but not changing the number of authorized shares, has the effect of
increasing the number of shares available for future issuances.
If for any reason the Board of Directors deems it advisable to do so, the
Reverse Stock Split may be abandoned by the Board of Directors at any time
before, during, or after the Special Meeting and prior to filing of the
amendment to the Restated Certificate of Incorporation with the Secretary of
State of the State of Delaware, pursuant to Section 242(c) of the Delaware
General Corporation Law, without further action by the stockholders of the
Company. In addition, the effect of the Reverse Stock Split may be partially
offset if the Board of Directors elects to declare a stock-for-stock dividend as
described above.
As of August 30, 1997, in addition to the 4,072,761 shares of Common Stock
outstanding ("Shares") and without giving effect to the Reverse Stock Split, the
Company had (i) 400,000 Shares reserved for issuance upon exercise of options
under the 1990 Plan, under which options to purchase 382,500 Shares are
outstanding; (ii) 1,600,000 Shares reserved for issuance upon exercise of
options under the 1993 Plan, under which options to purchase 962,000 Shares are
outstanding; (iii) 3,075,000 Shares reserved for issuance upon conversion of
convertible warehouse lines of credit; (iv) 6,705,000 Shares reserved for
issuance upon
7
<PAGE> 10
conversion of issued shares of convertible preferred stock; (v) 1,469,600 Shares
issuable upon exercise of warrants issued in connection with the sale of
preferred stock; (vi) 3,256,000 Shares issuable upon conversion of Convertible
Debt; (vii) 4,250,000 Shares issuable upon conversion of the 10% Convertible
Notes issued in the Bridge Financing and exercise of associated warrants; and
(viii) 2,284,418 Shares issuable upon exercise of underwriters' and other
warrants. As a result, 26,457,279 Shares are outstanding or reserved for
issuance on exercise of outstanding options or warrants or conversion of
convertible securities, and only 8,542,721 additional Shares are currently
available for issuance. If the Conversion Offer is accepted by the holders of
75% of the outstanding shares of 9% Preferred Stock and 75% of the outstanding
principal amount of the Secured Notes, the Company will be required to issue or
reserve for issuance 13,703,231 additional Shares, which exceeds the 8,542,721
Shares currently available for issuance. If the Reverse Stock Split is approved,
assuming acceptance of the Conversion Offer by the holders of 75% of the 9%
Preferred Stock and 75% of the Secured Notes there will be approximately
3,554,600 shares outstanding, 31,445,400 shares reserved for issuance on
conversion or exercise of outstanding convertible securities, warrants or
options and 29,708,544 authorized Shares available for issuance, in addition to
the Shares reserved for issuance, on such terms and conditions as may be
determined by the Board of Directors. The above share amounts do not give effect
to the conversion of accrued interest and dividends.
The Company's Common Stock is currently listed on the Nasdaq SmallCap
Market. The Board of Directors believes that the continued listing of the
Company's Common Stock on the Nasdaq SmallCap Market is important for the
marketability of the Common Stock and the prestige of the Company in the
financial community. Nasdaq requires, with respect to continued listing, (i)
either at least $2,000,000 in net tangible assets, a $35,000,000 market
capitalization or net income of at least $500,000 for the latest fiscal year or
in two of the last three fiscal years, (ii) at least 500,000 shares in the
public float valued at $1,000,000 or more, (iii) a minimum Common Stock bid
price of $1.00, (iv) at least two active market makers, and (v) at least 300
holders of the Common Stock. The Board of Directors believes that the Reverse
Stock Split, by decreasing the number of shares outstanding, should increase the
bid price per share of Common Stock and is necessary in order to permit the
Company to meet the bid price requirement for continued listing on the Nasdaq
SmallCap Market. The Company has received a letter from Nasdaq stating that the
Company has failed to maintain a $1.00 minimum bid price on its Common Stock and
also does not appear to meet the $2,000,000 minimum in assets necessary for
continued listing on the Nasdaq Stock Market. The Company must respond by
October 22, 1997 with a plan and schedule to get the Company back in compliance
with these requirements. In the event the Company is not in compliance by
October 22, 1997 or Nasdaq does not accept the Company's plan for achieving
compliance, a formal notice of deficiency would be issued specifying a delisting
date for the Company's Common Stock. The Company's securities will remain listed
on the Nasdaq SmallCap Market pending review of their continued listing by a
Committee of the NASD Board of Governors. On September 3, 1997, the last
reported sale price of the Common Stock on the Nasdaq SmallCap Market was $.75
per share. The Company believes that the consummation of the conversion of at
least 75% of the principal amount of the Secured Notes and 75% of the 9%
Preferred Stock will be sufficient to satisfy the asset requirement for
continued listing, in conjunction with the increased share price expected to
result from the Reverse Stock Split, will enable the Company to continue to list
its Common Stock on the Nasdaq SmallCap Market. However, the decision of the
NASD committee is beyond the control of the Company and may depend on a number
of factors in addition to the quantitive criteria discussed herein, and there
can be no assurance that the Company will be successful in its appeal. There can
be no assurance that the market price of the Common Stock will increase to, or
remain above $1.00 per share after the Reverse Stock Split or, even if it does,
that the Company will be able to raise a minimum of $2,000,000 in the Proposed
Financing to meet the criteria for continued listing of its Common Stock on the
Nasdaq SmallCap Market. The Company believes that, frequently, following a
reverse stock split, a company's stock price will fail to reach or sustain a
price equal to the pre-split price multiplied by the reverse split multiple.
If the Company does not effect the consummation of the conversion of at
least 75% of the principal amount of the Secured Notes and 75% of the 9%
Preferred Stock and/or is unsuccessful in its appeal of the Nasdaq determination
to delist the Company's securities, or is unable in the future to satisfy
Nasdaq's maintenance requirements, its securities can be expected to be delisted
from Nasdaq. In such event, trading, if any, in the Common Stock would
thereafter be conducted in the over-the-counter market in the so-called
8
<PAGE> 11
"pink sheets" or the NASD's "Electronic Bulletin Board." Consequently, the
liquidity of the Company's Common Stock could be severely adversely affected,
not only in the number of shares which could be bought and sold, but also
through delays in the timing of transactions, reduction in security analysts'
and the news media's coverage of the Company and lower prices for the Company's
Common Stock than might otherwise be attained.
Theoretically, the number of shares outstanding should not, by itself,
affect the marketability of the stock, the type of investor who acquires it, or
the Company's reputation in the financial community. However, in practice this
is not necessarily the case, as certain investors view low-priced stock as
unattractive or, as a matter of policy, will not extend margin credit on stock
trading at low prices, although certain other investors may be attracted to
low-priced stock because of the greater trading volatility sometimes associated
with such securities. Many brokerage houses are reluctant to recommend
lower-priced stock to their clients or to hold it in their own portfolios.
Further, a variety of brokerage house policies and practices discourage
individual brokers within those firms from dealing in low-priced stock because
of the time-consuming procedures that make the handling of low-priced stock
unattractive to brokerage houses from an economic standpoint.
If the Reverse Stock Split is not implemented, the Company intends to seek
the approval of its shareholders to increase the number of authorized shares of
Common Stock. The Company's ability to finance its operations will be materially
adversely affected if neither the Reverse Stock Split nor the increase in the
number of authorized shares is implemented.
There can be no assurance, however, that the foregoing effects will occur
or that the market price of the Common Stock immediately after implementation of
the proposed Reverse Stock Split will be maintained for any period of time, that
such market price will approximate five times (or some other multiple of) the
market price of the Common Stock before the proposed Reverse Stock Split, or
that such market price of the Common Stock issuable pursuant to the Reverse
Stock Split will exceed or remain in excess of the current market price of the
Common Stock.
CERTAIN EFFECTS OF THE REVERSE STOCK SPLIT
If the Reverse Stock Split is approved by the Stockholders at the Special
Meeting and the Company's Board of Directors subsequently determines that it is
advisable to proceed with the Reverse Stock Split, the result (without giving
effect to the stock dividend, if any, referred to above) would be that each
Company stockholder who owns five or more shares of Common Stock will receive
one share of New Common Stock for each five shares of Common Stock held at the
Effective Time (defined below). No fractional shares or scrip would be issued
and the number of shares of Common Stock issuable to each Holder will be rounded
up to the next whole number. If for any reason the Board of Directors deems it
advisable to do so, the Reverse Stock Split may be abandoned by the Board of
Directors at any time before, during, or after the Special Meeting and prior to
filing of the amendment to the Restated Certificate of Incorporation with the
Secretary of State of the State of Delaware, pursuant to Section 242(c) of the
Delaware General Corporation Law, without further action by the stockholders of
the Company.
The Reverse Stock Split would not affect any stockholder's percentage
ownership interest in the Company or proportional voting power, except for minor
differences resulting from fractional shares. In addition, the Reverse Stock
Split should not reduce the number of stockholders of the Company other than
with respect to stockholders owning less than five shares of Common Stock. The
shares of Common Stock that will be issued upon approval of the Reverse Stock
Split will be fully paid and nonassessable. The voting rights and other
privileges of the holders of Common Stock would not be affected substantially by
adoption of the Reverse Stock Split or subsequent implementation thereof.
However, a Common Stockholder's percentage interest will be affected if the
Conversion Offer is consummated.
If the Conversion Offer is consummated, the Company will issue an
additional 25,972,308 shares of Common Stock (assuming 100% acceptance) on
conversion of the Secured Notes and 9% Preferred Stock (consisting of 5,776,000
shares issuable on conversion of the Secured Notes and the 9% Preferred Stock
based on the conversion rate in effect prior to the Conversion Offer and an
additional 20,196,308 shares of Common
9
<PAGE> 12
Stock resulting from the change in the conversion rate pursuant to the
Conversion Offer). In addition, simultaneously with the consummation of the
Conversion Offer, the exercise price of outstanding warrants to purchase 900,000
shares of Common Stock will be adjusted from $2.50 per share to $.90 per share,
and the exercise price on another 1,351,918 warrants will be adjusted from $2.50
per share to $.50 per share.
As a result of these changes in the capital structure, there will be an
aggregate of 30,045,069 shares of Common Stock outstanding (assuming that the
Conversion Offer is accepted in full), 7,260,000 shares of Common Stock reserved
for issuance on conversion of outstanding shares of convertible securities
(32,260,000 shares if the Proposed Financing is consummated in full) and
6,973,518 shares reserved for issuance on exercise of outstanding warrants and
options. Accordingly, the Conversion Offer and the Proposed Financing will
result in substantial dilution to holders of Common Stock.
The following table presents the pro forma capitalization of the company i)
as of August 30, 1997 and ii) giving effect to the conversion of 100% of the
Secured Notes and 100% of the 9% Preferred Stock, the sale of a maximum of
$3,000,000 of 11% Preferred Stock in the Proposed Financing and the repayment of
the Bridge Loan. This table does not give effect to the Reverse Stock Split.
PRO FORMA CAPITALIZATION TABLE(1)
<TABLE>
<CAPTION>
PRIOR TO AFTER
DESCRIPTION CONVERSION OFFER(2) CONVERSION OFFER(4)
- ------------------------------------------------------------ ------------------- -------------------
<S> <C> <C>
EXISTING SHARES OUTSTANDING................................. 4,072,761 30,045,069
Shares Reserved for Issuance
CONVERTIBLE DEBT:
10% convertible notes..................................... 3,256,000 0
10% convertible warehouse lines........................... 3,075,000 3,075,000
10% convertible secured notes............................. 2,125,000 0
CONVERTIBLE PREFERRED STOCK:
11% convertible preferred stock........................... 4,185,000 4,185,000
9% convertible preferred stock............................ 2,520,000 0
Proposed Financing (11% preferred stock).................. 0 7,500,000
WARRANTS ISSUED TO CONVERTIBLE SECURITY HOLDERS:
11% convertible preferred stock........................... 669,600 669,600
9% convertible preferred stock............................ 800,000 800,000
10% convertible secured notes............................. 2,125,000 2,125,000
Proposed Financing........................................ 0 7,500,000
OTHER CONVERTIBLE INSTRUMENTS:
Underwriter's warrants.................................... 1,351,918 1,351,918
Employee stock option plans (actual outstanding).......... 1,344,500 1,344,500
Other warrants............................................ 932,500 932,500
---------- -----------
FULLY DILUTED SHARES OUTSTANDING............................ 26,457,279 59,528,587
Shares authorized........................................... 35,000,000 35,000,000
Shares available............................................ 8,542,721 (24,528,587)
</TABLE>
- ---------------
(1) Does not give effect to the Reverse Stock Split or the conversion of accrued
9% Preferred Stock dividends or accrued interest on the Secured Notes.
(2) At August 30, 1997
(3) Assumes: (i) 100% conversion of the Secured Notes and the 9% Preferred
Stock,
(ii) Maximum amount of $3,000,000 of 11% Preferred Stock is
raised
(iii) Bridge Loan is repaid out of the proceeds Proposed
Financing
(4) If the reverse stock split is approved, there would be 35,000,000 shares
authorized, 6,009,014 shares outstanding, 7,896,703 reserved for issuance,
and 21,094,283 shares authorized but not reserved or issued.
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<PAGE> 13
The following table presents the pro forma balance sheet of the Company i)
as of June 30, 1997 and ii) giving effect to the conversion of 75% of the
Secured Notes and 75% of the 9% Preferred Stock.
PRO FORMA BALANCE SHEET(1)
<TABLE>
<CAPTION>
AFTER
AT EFFECT OF CONVERSION
JUNE 30, 1997 CONVERSION* OFFER
-------------------- ------------------- --------------------
<S> <C> <C> <C>
ASSETS
Cash.................................................... $ 1,536,252 $ 1,536,252
Loans receivable........................................ 5,256,518 5,256,518
Interest-only strip receivable.......................... 7,268,930 7,268,930
Other Assets............................................ 3,263,021 $(1,000,000) 2,263,021
----------- ----------- -----------
Total Assets.................................. $17,324,721 $16,324,721
=========== =========== ===========
LIABILITIES
10% Convertible notes................................... $ 8,140,000 $(6,105,000) $ 2,035,000
Warehouse lines of credit............................... 5,656,386 5,656,386
Advance on interest-only strip receivable............... 2,100,651 2,100,651
Other debt and liabilities.............................. 1,050,846 1,050,846
----------- ----------- -----------
Total Liabilities............................. $16,947,883 $10,842,883
=========== =========== ===========
SHAREHOLDERS EQUITY
Common Stock............................................ $ 4,073 $ 13,700 $ 17,773
Preferred Stock......................................... 332 (225) 107
Paid-in-capital & retained earnings..................... 372,433 5,091,525 5,463,958
----------- ----------- -----------
Total Shareholders Equity..................... 376,838 5,481,838
----------- ----------- -----------
Total Liabilities & Shareholders Equity....... $17,324,721 $16,324,721
=========== =========== ===========
</TABLE>
- ---------------
(1) Assuming 75% of the Secured Notes and 9% Preferred Stock convert to Common
Stock pursuant to the Conversion Offer.
Dissenting stockholders have no appraisal rights under Delaware law or
under the Company's Restated Certificate of Incorporation or Bylaws in
connection with the Reverse Stock Split.
While the Company has no specific plans, arrangements, or agreements to
issue Shares other than those described above, the Board of Directors of the
Company believes it is advisable and in the best interest of the Company to have
available authorized but unissued Shares in an amount adequate to provide for
the future needs of the Company. The additional authorized Shares will benefit
the Company by providing flexibility to the Board of Directors without further
action or authorization by shareholders (except as required by law), in
responding to business needs and opportunities as they arise, or for other
proper corporate purposes. These corporate purposes might include issuance of
additional shares of preferred stock, acquisitions of securities or other assets
of other corporations, stock dividends, stock splits, employee stock options,
convertible debt financings, the obtaining of capital funds through public and
private offerings of shares of Common Stock or of securities convertible into
shares, or to compensate employees or retain consultants, and issuance of
warrants in connection with any of the foregoing. The issuance of any additional
Shares will be on terms deemed to be, at the time of such issuances, in the best
interests of the Company and its shareholders. If such additional authorized
shares of Common Stock are subsequently issued to other than existing
shareholders, the percentage interest of existing shareholders in the Company
will be reduced. Holders of Common Stock have no pre-emptive rights with respect
to future issuances of Common Stock.
The Board of Directors is not aware of any attempt to gain control of the
Company nor is it recommending this amendment to increase the number of
authorized Shares of Common Stock in response to any specific effort to obtain
control of the Company. The proposed amendment to increase the number of
authorized Shares is not designed as nor intended to be an anti-takeover
measure; however, the authorized but
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<PAGE> 14
unissued Shares could be used by incumbent management to make a change in
control of the Company more difficult and time-consuming. Under certain
circumstances, such unissued Shares could be used to create obstacles or to
frustrate persons seeking to effect a takeover or otherwise gain control of the
Company with a view to instituting a merger, sale of all or part of the
Company's assets, or other similar transaction which may not be in the best
interest of the shareholders.
If the Reverse Stock Split is approved, a portion of the additional
authorized shares resulting from the Reverse Stock Split will be issued upon
conversion of the Secured Notes and the 9% Preferred Stock. The following is a
brief description of the terms of the 9% Preferred Stock and the Secured Notes:
9% PREFERRED STOCK
DIVIDENDS. The holders of the 9% Preferred Stock are entitled to receive
cumulative dividends at the rate of 9% per annum per share on the purchase price
of the 9% Preferred Stock, payable quarterly. No dividends may be paid on any
shares of capital stock ranking pari passu with or junior to the 9% Preferred
Stock (including Common Stock) unless and until all accumulated and unpaid
dividends on the 9% Preferred Stock have been declared and paid in full.
Pursuant to the Amendment to the Certificate of Designation set forth in
Proposal 2, the Company will be able to pay dividends for any period on any such
shares of capital stock ranking pari passu with the 9% Preferred Stock without
declaring and paying dividends on the 9% Preferred Stock for such period.
Additionally, pursuant to the Amendment to the Certificate of Designation, the
restrictions on the Company's ability to issue preferred stock senior to the 9%
Preferred Stock with respect to liquidation rights or the payment of dividends
will be eliminated.
CONVERSION. Each share of 9% Preferred Stock is convertible, at any time
prior to redemption, at the option of the holder, into shares of Common Stock at
a conversion price per share equivalent to $2.50 (reduced from $4.00 as a result
of prior anti-dilution adjustment). The number of shares of Common Stock to be
received upon conversion of 9% Preferred Stock and the conversion price per
share of Common Stock are subject to adjustment in certain circumstances.
REDEMPTION. The Company may at its option, commencing on the second
anniversary of the initial closing, redeem the shares of 9% Preferred Stock, in
whole or in part, at a redemption price of $20.00 per share plus accrued and
unpaid dividends, provided the average of the closing bid prices of the Common
Stock as reported by Nasdaq shall have for 20 consecutive trading days ending
within 10 days of the date of the notice of redemption is given by the Company
equalled or exceeded two hundred fifty percent (250%) of the then conversion
price and a registration statement covering the underlying Common Stock is then
in effect and current or the Common Stock is freely transferable without
registration.
VOTING RIGHTS. The Certificate of Designation currently provides that
affirmative vote of the holders of at least a majority of the outstanding shares
of 9% Preferred Stock, voting as a class, shall be required to authorize, effect
or validate the creation and issuance of any class or series of capital stock
ranking senior to the 9% Preferred Stock with respect to the declaration and
payment of dividends or distribution of assets on liquidation, dissolution or
winding up. Pursuant to the Amendment to the Certificate of Designation, this
provision will be eliminated.
LIQUIDATION PREFERENCE. In the event of any voluntary or involuntary
liquidation, dissolution or winding-up of the Company, before any payment or
distribution of the assets of the Company may be made or set apart for the
holders of Common Stock or any series or class of stock ranking junior to the 9%
Preferred Stock, the holders of 9% Preferred Stock will be entitled to receive,
out of the assets of the Company available for distribution to stockholders, a
liquidating distribution of $20.00 per share, plus any accumulated and unpaid
dividends.
SECURED NOTES
The Secured Notes bear interest at a rate of 10% per annum and mature on
June 30, 2001 with interest payable semiannually. The Secured Notes are
redeemable at the option of the Company after January 1, 1998. The Secured Notes
are convertible at the holder's option into shares of Common Stock at a
conversion price
12
<PAGE> 15
of $2.50 per share (subject to certain adjustments) and at the Company's option
under certain circumstances. The Secured Notes are secured by a lien on all of
the Company's assets (subject to certain permitted liens) and are guaranteed by
the Subsidiaries which guarantees are secured by a pledge of the assets of the
subsidiaries, other than certain excluded assets. So long as the Secured Notes
are outstanding, the Company is subject to certain covenants, including
covenants restricting in its ability to incur liens on its assets and to pay
dividends on Common Stock, and to repurchase shares of Common Stock and
Preferred Stock from holders thereof.
EFFECTIVE TIME
If the Reverse Stock Split is approved by the stockholders at the Special
Meeting, and upon a determination by the Board of Directors that the Reverse
Stock Split is in the best interest of the Company and its stockholders, an
amendment to the Certificate of Incorporation would be filed with the Secretary
of State of the State of Delaware on any date selected by the Board of Directors
on or prior to the Company's next Annual Meeting of Stockholders, providing that
the Reverse Stock Split would become effective as of 5:00 p.m. New York City
time on the date of such filing (the "Effective Time"). Without any further
action on the part of the Company or the stockholders, the shares of Common
Stock held by stockholders of record as of the Effective Time will be converted
at the Effective Time into the right to receive a number of shares of New Common
Stock equal to the number of their shares of Common Stock divided by five, with
cash paid in lieu of any fractional share.
EXCHANGE OF STOCK CERTIFICATES
As soon as practicable after the Effective Time, the Company will send a
letter of transmittal to each stockholder of record at the Effective Time for
use in transmitting certificates representing shares of Common Stock ("old
certificates") to the Company's transfer agent, Continental Stock Transfer &
Trust Company (the "Exchange Agent"). The letter of transmittal will contain
instructions for the surrender of old certificates to the Exchange Agent in
exchange for certificates representing the appropriate number of whole shares of
New Common Stock and cash in lieu of any fractional share. No new certificates
will be issued to a stockholder until such stockholder has surrendered all old
certificates together with a properly completed and executed letter of
transmittal to the Exchange Agent.
Upon proper completion and execution of the letter of transmittal and
return thereof to the Exchange Agent, together with all old certificates,
stockholders will receive a new certificate or certificates representing the
number of whole shares of Common Stock into which their shares of Common Stock
represented by the old certificates have been converted as a result of the
Reverse Stock Split. Until surrendered, outstanding old certificates held by
stockholders will be deemed for all purposes to represent the number of whole
shares of Common Stock to which such stockholders are entitled as a result of
the Reverse Stock Split. Stockholders should not send their old certificates to
the Exchange Agent until they have received the letter of transmittal. Shares
not presented for surrender as soon as is practicable after the letter of
transmittal is sent shall be exchanged at the first time they are presented for
transfer.
No service charges will be payable by stockholders in connection with the
exchange of certificates, all expenses of which will be borne by the Company.
FEDERAL INCOME TAX CONSEQUENCES
The following is a summary of the material anticipated Federal income tax
consequences of the Reverse Stock Split to stockholders of the Company. This
summary is based on the Federal income tax laws now in effect and as currently
interpreted; it does not take into account possible changes in such laws or
interpretations, including amendments to applicable statutes, regulations, and
proposed regulations or changes in judicial or administrative rulings, some of
which may have retroactive effect. This summary is provided for general
information only and does not purport to address all aspects of the possible
Federal income tax consequences of the Reverse Stock Split and IS NOT INTENDED
AS TAX ADVICE TO ANY PERSON.
13
<PAGE> 16
In particular, and without limiting the foregoing, this summary does not
consider the Federal income tax consequences to stockholders of the Company in
light of their individual investment circumstances or to holders subject to
special treatment under the Federal income tax laws (for example, life insurance
companies, regulated investment companies, and foreign taxpayers). The summary
does not address any consequence of the Reverse Stock Split under any state,
local, or foreign tax laws.
No ruling from the Internal Revenue Service ("Service") or opinion of
counsel will be obtained regarding the Federal income tax consequences to the
stockholders of the Company as a result of the Reverse Stock Split. ACCORDINGLY,
EACH STOCKHOLDER IS ENCOURAGED TO CONSULT HIS OR HER TAX ADVISOR REGARDING THE
SPECIFIC TAX CONSEQUENCES OF THE PROPOSED TRANSACTION TO SUCH STOCKHOLDER,
INCLUDING THE APPLICATION AND EFFECT OF STATE, LOCAL, AND FOREIGN INCOME AND
OTHER TAX LAWS.
The Company believes that the Reverse Stock Split would be a tax-free
recapitalization to the Company and its stockholders. If the Reverse Stock Split
qualifies as a recapitalization under Section 368(a)(1)(E) of the Internal
Revenue Code of 1986, as amended, a stockholder of the Company who exchanges his
or her Common Stock solely for New Common Stock should recognize no gain or loss
for Federal income tax purposes. A stockholder's aggregate tax basis in his or
her shares of Common Stock received from the Company should be the same as his
or her aggregate tax basis in the Common Stock exchanged therefor. The holding
period of the Common Stock received by such stockholder should include the
period during which the Common Stock surrendered in exchange therefor was held,
provided all such Common Stock was held as a capital asset at the Effective
Time.
Cash received by a stockholder in lieu of a fractional share is treated as
if the Company actually issued the fractional share and redeemed it for cash. A
portion of the stockholder's aggregate tax basis in the Common Stock is
allocated to the fractional share of Common Stock. Gain or loss is recognized
measured by the difference between the cash received in lieu of the fractional
share and the basis allocated to it, and such gain or loss will be a capital
gain or loss if the Common Stock was held as a capital asset at the Effective
Time.
VOTE REQUIRED
In order to effect the Reverse Stock Split, the Certificate of
Incorporation must be amended, which requires, under Delaware law, the
affirmative vote of holders of a majority of the outstanding shares of Common
Stock.
The Board of Directors recommends that you vote FOR the proposal to amend
the Restated Certificate of Incorporation to effect the one-for-five Reverse
Stock Split.
PROPOSAL 2
PROPOSAL TO AMEND THE CERTIFICATE OF
DESIGNATION OF 9% PREFERRED STOCK
The Board of Directors has approved an amendment to the Certificate of
Designation of the 9% Preferred Stock which eliminates the following provisions
of the Certificate of Designation of the 9% Preferred Stock: (i) the restriction
on the Company paying dividends for any period on shares of capital stock
ranking pari passu with the 9% Preferred Stock unless dividends on the 9%
Preferred Stock are declared and paid for such period and (ii) the restriction
on the Company authorizing, effecting or validating the creation or issuance of
any class or series of preferred stock ranking senior to the 9% Preferred Stock
with respect to the declaration and payment of dividends or distribution of
assets on liquidation dissolution or winding up.
The Board of Directors believes that the elimination of these protective
provisions will provide increased flexibility to the Company in connection with
the issuance of additional series of preferred stock, including the 11%
Preferred Stock which the Company proposes to issue pursuant to the Proposed
Financing. Additionally, in an action which does not require the vote of the
Preferred or Common Stockholders of the Company,
14
<PAGE> 17
certain anti-dilution provisions relating to the adjustment of the 9% Preferred
Stock Conversion Price on the issuance of Common Stock by the Company at prices
below the Conversion Price will be eliminated.
VOTE REQUIRED
In order to effect the Amendment to the Certificate of Designation, the
approval of the holders of a majority of the outstanding 9% Preferred Stock and
a majority of the outstanding shares of Common Stock is required.
The Board of Directors recommends a vote FOR the Amendment to the
Certificate of Designation.
GENERAL
The Management of the Company does not know of any matters other than those
stated in this Proxy Statement which are to be presented for action at the
meeting. If any other matters should properly come before the meeting, proxies
will be voted on these other matters in accordance with the judgment of the
persons voting the proxies. Discretionary authority to vote on such matters is
conferred by such proxies upon the persons voting them.
The Company will bear the cost of preparing, printing, assembling and
mailing all proxy materials which may be sent to shareholders in connection with
this solicitation. Arrangements will also be made with brokerage houses, other
custodians, nominees and fiduciaries, to forward soliciting material to the
beneficial owners of the Company's shares of Common Stock held by such persons.
The Company will reimburse such persons for reasonable out-of-pocket expenses
incurred by them. In addition to the solicitation of proxies by use of the
mails, officers and regular employees of the Company may solicit proxies without
additional compensation, by telephone or telegraph. The Company has retained
D.F. King & Co., Inc., to assist with the solicitation of proxies at an
estimated cost of $7,500 plus out-of-pocket expenses.
The Company's statements of operations for the years ended June 30, 1996
and 1997 and the related statements of stockholders' equity and cash flows and
the Company's balance sheets at June 30, 1996 and 1997 are incorporated herein
by reference to the Company's Report on Form 8-K for the year ended June 30,
1997, a copy of which is being delivered to stockholders simultaneously with the
delivery of this proxy statement.
Upon written request, the Company will provide each shareholder being
solicited by this Proxy Statement, a copy of the exhibits and schedules to the
Company's Form 10-KSB for its fiscal year ended June 30, 1997, when it is filed
with the Securities and Exchange Commission and which accompanies this Proxy
Statement. All such requests should be directed to Credit Depot Corporation, 700
Wachovia Center, Gainesville, Georgia 30501, Attention: Treasurer.
SHAREHOLDER'S PROPOSALS
All proposals of shareholders intended to be presented at the Company's
next Annual Meeting of Shareholders were required to be received at the
Company's executive office no later than July 15, 1997 for inclusion in the
proxy statement and form of proxy related to that meeting.
By Order of the Board of Directors,
/s/ John C. Thomas
John C. Thomas, Secretary
September 23, 1997
15
<PAGE> 18
EXHIBIT A
CERTIFICATE OF AMENDMENT TO THE
CERTIFICATE OF INCORPORATION
OF
CREDIT DEPOT CORPORATION
Credit Depot Corporation (the "Corporation"), a corporation organized and
existing under and by virtue of the General Corporation Law of the State of
Delaware (the "General Corporation Law"), hereby certifies as follows:
A. The name of the Corporation is Credit Depot Corporation. A Certificate
of Incorporation of the Corporation originally was filed by the Corporation with
the Secretary of State of Delaware on August 7, 1990, a Certificate of Agreement
of Merger of the Corporation was filed with the Secretary of State of Delaware
on August 23, 1990, a Certificate of Amendment was filed with the Secretary of
State of Delaware on October 10, 1990, a Certificate of Designation was filed
with the Secretary of State of Delaware on October 10, 1995, a Certificate of
Amendment was filed with the Secretary of State of Delaware on January 18, 1996,
a Certificate of Amendment was filed with the Secretary of State of Delaware on
February 7, 1997, and a Certificate of Designation was filed with the Secretary
of State of Delaware on April 22, 1997.
B. This Amendment to the Certificate of Incorporation was duly adopted and
approved by written consent of the stockholders of the Corporation in accordance
with the provisions of Section 242 of the General Corporation Law.
C. (1) Each issued and outstanding share of the Common Stock and each
share held in treasury shall be, without any further action on the part of the
Corporation or any stockholder, automatically changed and reclassified into
one-fifth of a share of Common Stock of the Corporation (the "Recapitalization")
and each certificate representing outstanding shares of Common Stock shall
automatically and without further action on the part of the holder thereof
represent the number of shares of Common Stock issuable with respect to the
number of shares of Common Stock represented by such certificate.
(2) No fractional shares of Common Stock shall be issued in connection with
the Recapitalization and the number of shares of Common Stock issuable in
connection with the Recapitalization shall be rounded up to the next highest
number.
(3) The Recapitalization shall be deemed to be effectuated immediately upon
the filing of this Amendment.
IN WITNESS WHEREOF, the undersigned has caused this Fourth Certificate of
Amendment to the Certificate of Incorporation to be duly executed on its behalf
as of the day of , 1997.
CREDIT DEPOT CORPORATION
By:
-----------------------------------------
Gerald F. Sullivan President
President
A-1
<PAGE> 19
EXHIBIT B
AMENDMENT TO CERTIFICATE OF DESIGNATION, PREFERENCES
AND RIGHTS OF 9% CUMULATIVE CONVERTIBLE
PREFERRED STOCK
OF
CREDIT DEPOT CORPORATION
CREDIT DEPOT CORPORATION, a corporation organized and existing under the
General Corporation Law of the State of Delaware (the "Company"), by its
President and Secretary, does hereby certify that, pursuant to authority
conferred upon the Board of Directors of the Company by Paragraph 3 of Article
Sixth of the Certificate of Incorporation of the Company, as amended, the Board
of Directors, at a meeting duly held on , 1997, duly adopted a resolution
providing for the amendment of the Certificate of Designation, Preferences and
Rights of 9% Cumulative Convertible Preferred Stock, which resolution was duly
adopted by the stockholders of the Corporation in accordance with the provisions
of Section 242 of the Delaware General Corporation Law, as amended, as follows:
RESOLVED, that the Certificate of Designation, Preferences and Rights of 9%
Cumulative Convertible Preferred Stock be amended by terminating the following
provisions thereof:
1. Dividends. Section 2, paragraph (E); and
2. Voting Rights. Section 7, paragraph (A).
IN WITNESS WHEREOF, Credit Depot Corporation has caused this Amendment to
be signed by Gerald F. Sullivan, its President, on this day of ,
1997, and such person hereby affirms under penalty of perjury that this
Amendment is the act and deed of Credit Depot Corporation and that the facts
stated herein are true and correct.
CREDIT DEPOT CORPORATION
By:
-----------------------------------
Gerald F. Sullivan
President
Attest:
- --------------------------------------
John C. Thomas
Secretary
B-1
<PAGE> 20
<TABLE>
<S> <C>
STATE OF GEORGIA
SS.:
COUNTY OF HALL
</TABLE>
On this day of , 1997, before me, the undersigned, a
Notary Public of the State of New York, personally appeared Gerald F. Sullivan,
known to me to be the President of CREDIT DEPOT CORPORATION, the corporation
that executed the within instrument, and known to me to be the person who
executed the within instrument on behalf of said corporation and acknowledged to
me that such corporation executed the same pursuant to its By-Laws and a
resolution of its Board of Directors.
WITNESS my hand and official seal the day and year first above written.
-------------------------------------
Notary Public
B-2
<PAGE> 21
[CREDIT DEPOT LOGO]
<PAGE> 22
APPENDIX
PROXY
CREDIT DEPOT CORPORATION
SPECIAL MEETING OF STOCKHOLDERS
THIS PROXY IS SOLICITED ON BEHALF OF THE BOARD OF DIRECTORS
The undersigned hereby appoints John C. Thomas as proxy to represent the
undersigned at the Special Meeting of Stockholders to be held at Lanier Centre
Hotel 400 E.E. Butler Parkway, Gainesville, Georgia on October 24, 1997 at 2:00
p.m. and at any adjournment thereof, and to vote the shares of Common Stock
and/or the shares of 9% Preferred Stock the undersigned would be entitled to
vote if personally present, as indicated below. The Board of Directors
recommends a vote FOR each of the following proposals.
1. To approve and ratify an Amendment to the Company's Certificate of
Incorporation to effect a one-for-five reverse stock split.
[ ] FOR [ ] AGAINST [ ] ABSTAIN
2. To approve and ratify an Amendment to the Company's Certificate of
Designation of 9% Cumulative Convertible Preferred Stock eliminating provisions
therein, i) restricting payment of dividends for any period on capital stock of
the Company ranking pari passu with the 9% Preferred Stock without declaring and
paying dividends on the 9% Preferred Stock for such period and ii) restricting
the issuance of preferred stock ranking senior to the 9% Preferred Stock with
respect to liquidation preference or dividend rights.
[ ] FOR [ ] AGAINST [ ] ABSTAIN
3. IN THEIR DISCRETION, PROXIES ARE AUTHORIZED TO VOTE UPON SUCH BUSINESS AS
MAY PROPERLY COME BEFORE THE MEETING.
The Shares represented by this proxy will be voted as directed. IF NO
CONTRARY INSTRUCTION IS GIVEN, THE SHARES WILL BE VOTED FOR THE APPROVAL AND
RATIFICATION OF THE AMENDMENT TO THE CERTIFICATE OF INCORPORATION AND FOR THE
APPROVAL AND RATIFICATION OF THE AMENDMENT TO THE CERTIFICATE OF DESIGNATION.
Dated: , 1997
------------------
------------------------------
Signature
------------------------------
Signature if held jointly
(Please date, sign as name
appears at the left, and
return promptly. If the Shares
are registered in the names of
two or more persons, each
should sign. When signing as
Corporate Officer, Partner,
Executor, Administrator,
Trustee or Guardian, please
give full title. Please note
any changes in your address
alongside the address as it
appears in the proxy.)
