REGISTRATION NO. 333-____
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
THE MONEY STORE INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
NEW JERSEY 22-2293022
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER IDENTIFICATION
INCORPORATION OR ORGANIZATION) NUMBER)
2840 MORRIS AVENUE
UNION, NEW JERSEY 07083
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
1995 STOCK INCENTIVE PLAN
OF
THE MONEY STORE INC.
(FULL TITLE OF THE PLAN)
ERIC R. ELWIN, ESQ.
VICE PRESIDENT AND CORPORATE COUNSEL
2840 MORRIS AVENUE
UNION, NEW JERSEY 07083
(NAME AND ADDRESS OF AGENT FOR SERVICE)
(908) 686-2000
(TELEPHONE NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE)
----------------
Copy to:
Richard S. Forman, Esq.
Stroock & Stroock & Lavan
2029 Century Park East
Los Angeles, California 90067
(310) 556-5800
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
- -------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
TITLE OF SECURITIES TO BE Amount to be Proposed Maximum Offering Proposed Maximum Aggregate Amount of
REGISTERED Registered Price Per Share (1) Offering Price (1) Registration Fee
- -------------------------------------------------------------------------------------------------------------------------
Common Stock, 2,812,500 $23.25 (3) $65,390,625.00 $22,548.49
no par value shares (2)
- -------------------------------------------------------------------------------------------------------------------------
(1) Estimated solely for purposes of calculating the registration fee
pursuant to Rules 457(c) and 457(h) under the
Securities Act of 1933, as amended (the "Securities Act").
(2) Pursuant to Rule 416 under the Securities Act, this Registration
Statement also covers an indeterminate number of shares of Common Stock
which may be issued by reason of the anti-dilution provisions of the
plan.
(3) Based upon the average of the high and low prices for the Common Stock
reported by the NASDAQ National Market on September 9, 1996.
</TABLE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
Note: The documents containing the information specified in
Part I of Form S-8 will be sent or given to participants
in the 1995 Stock Incentive Plan (the "1995 Plan") of
The Money Store Inc. (the "Registrant") as specified by
Rule 428(b)(1) promulgated under the Securities Act of 1933,
as amended (the "Securities Act"). Such documents need
not be filed with the Securities and Exchange Commission
(the "Commission") either as part of this Registration
Statement or as prospectuses or prospectus supplements
pursuant to Rule 424 under the Securities Act. These
documents and the documents incorporated by reference in
the Registration Statement pursuant to Item 3 of Part II
of this Form S-8, taken together, constitute a
prospectus that meets the requirements of Section 10(a) of the
Securities Act. See Rule 428(a)(1) under the Securities
Act.
If it is necessary for a prospectus to be used for reoffers of the
Registrant's Common Stock acquired pursuant to the 1995 Plan, a prospectus
prepared in accordance with the requirements of Part I of Form S-3 will be filed
as part of this Registration Statement by means of a post-effective amendment
hereto.
PART II
INFORMATION REQUIRED IN THE
REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed by the Registrant with the
Securities and Exchange Commission (the "Commission") are incorporated herein by
reference:
(a) The Registrant's Annual Report on Form 10-K for the
fiscal year ended December 31, 1995;
(b) The Registrant's Quarterly Reports on Form 10-Q for
the quarters ended March 31 and June 30, 1996;
(c) The Registrant's Current Reports on Form 8-K dated
February 14 and March 5, 1996; and
(d) The description of the Registrant's Common Stock,
no par value, which is contained in the
Registrant's Registration Statement on Form 8-A,
declared effective September 20, 1991, filed with
the Commission to register such Common Stock
pursuant to Section 12(b) of the Securities
Exchange Act of 1934, as amended (the "Exchange
Act").
All documents subsequently filed by the Registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of
a post-effective amendment which indicates that all securities offered hereby
have been sold or which deregisters all securities then remaining unsold, shall
be deemed to be incorporated by reference herein and to be a part hereof from
the date of filing of such documents.
Any statement contained herein or in a document incorporated or
deemed to be incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this Registration Statement to the extent that a
statement contained herein or in any other subsequently filed document which
also is or is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any statement so modified or superseded shall not be
deemed, except as so modified or superseded, to constitute a part of this
Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES
(Not applicable.)
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
(Not applicable.)
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 14A:3-5 of the New Jersey Business Corporation Act
provides that New Jersey corporations such as the Registrant may indemnify any
director, officer, employee or agent against expenses and liabilities in
connection with any proceeding involving the director, officer, employee or
agent by reason of him or her acting in such capacity, other than a proceeding
by or in the right of the corporation, if he or she acted in good faith and in a
manner he or she reasonably believed to be in or not opposed to the best
interests of the corporation, and with respect to any criminal action or
proceeding, did not have reasonable cause to believe such conduct was unlawful.
Section Fifth of the Registrant's Amended and Restated Certificate of
Incorporation and Article VII of the Registrant's Amended and Restated By-Laws
entitle officers, directors, employees and agents to indemnification to the
fullest extent permitted by Section 14A:3-5 of the New Jersey Business
Corporation Act.
Section Sixth of the Registrant's Amended and Restated
Certificate of Incorporation provides that no director or officer shall be
personally liable to the Registrant or its shareholders for damages for breach
of any duty owed to the Registrant or its shareholders, except that a director
or officer shall not be relieved from liability for any breach of duty based
upon an act or omission (i) in breach of the duty of loyalty to the Registrant
or its shareholders, (ii) not in good faith or involving a knowing violation of
law, or (iii) resulting in receipt by such director or officer of an improper
personal benefit.
The Registrant maintains directors' and officers' liability
insurance which covers the directors and officers of the Registrant with policy
limits of $10,000,000, with excess coverage of an additional $10,000,000.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
(Not Applicable.)
ITEM 8. EXHIBITS
EXHIBIT NO. DESCRIPTION
4.1 Restated Certificate of Incorporation of the Registrant.*
4.2 Amended and Restated By-Laws of the Registrant.
Incorporated by reference to Exhibit 3.2 to Registration
Statement on Form S-1 (No. 33-41172).
4.3 1995 Stock Incentive Plan of the Registrant.*
5 Opinion of Eric R. Elwin, Esq., Corporate Counsel of the
Registrant.*
23.1 Consent of Eric R. Elwin, Esq., Corporate Counsel of the
Registrant. Included in Exhibit 5 hereto.
23.2 Consent of KPMG Peat Marwick.*
24 Power of Attorney (included at page II-5).*
- --------------------
* Filed herewith by electronic submission.
ITEM 9. UNDERTAKINGS
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or
sales are being made, a post-effective amendment to this Registration Statement
to include any material information with respect to the plan of distribution not
previously disclosed in the Registration Statement or any material change to
such information in the Registration Statement;
(2) That, for the purpose of determining any
liability under the Securities Act of 1933, each such post-effective amendment
shall be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-
effective amendment any of the securities being registered which remain unsold
at the termination of the offering.
(4) If the Registrant is a foreign private issuer,
to file a post-effective amendment to the Registration Statement to include any
financial statements required by Rule 3-19 of Regulation S-X at the start of any
delayed offering or throughout a continuous offering. Financial statements and
information otherwise required by Section 10(a)(3) of the Act need not be
furnished, provided, that the Registrant includes in the prospectus, by means of
a post-effective amendment, financial statements required pursuant to this
paragraph (a)(4) and other information necessary to insure that all other
information in the prospectus is at least as current as the date of those
financial statements. Notwithstanding the foregoing, with respect to
registration statements on Form F-3, a post-effective amendment need not be
filed to include financial statements and information required by Section
10(a)(3) of the Act or Rule 3-19 of this chapter if such financial statements
and information are contained in periodic reports filed with or furnished to the
Commission by the registrant pursuant to section 13 or 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in the Form F-3.
(b) The Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
Registration Statement shall be deemed to be a new Registration Statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise,
the Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Union, State of New Jersey, on the 12th day of
September 1996.
THE MONEY STORE INC.
By: /S/ MORTON DEAR
Morton Dear,
Executive Vice President
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that each of the undersigned hereby
constitutes and appoints Morton Dear, Eric Elwin and Harry Puglisi, and each of
them, acting together or alone, as his true and lawful attorneys-in-fact and
agents, with full power of substitution, for him and in his name, place and
stead, in any and all capacities, to sign a registration statement on Form S-8
(the "Registration Statement") relating to the 1995 Stock Incentive Plan of The
Money Store Inc., and any and all amendments (including post-effective
amendments) to the Registration Statement, and to file the same, with all
exhibits thereto, and all documents in connection therewith, with the Securities
and Exchange Commission, granting unto said attorneys-in-fact and agents, and
each of them, acting together or alone, full power and authority to do and
perform each and every act and thing requisite and necessary to be done in and
about the premises, as fully to all intents and purposes as he might or could do
in person, hereby ratifying and confirming all that said attorneys-in-fact and
agents or any of them, or their or his substitute or substitutes, may lawfully
do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities indicated on September 12, 1996:
SIGNATURE TITLE
/S/ ALAN TURTLETAUB Chairman of the Board of Directors
Alan Turtletaub
/S/ MARC TURTLETAUB President, Chief Executive Officer
Marc Turtletaub and Director (Principal Executive
Officer)
/S/ MORTON DEAR Executive Vice President and
Chief
Morton Dear Financial Officer, Secretary and
Director (Principal Financial
Officer)
/S/ ANTHONY R. MEDICI Executive Vice President and
Director
Anthony R. Medici
/S/ HARRY PUGLISI Treasurer and Director
Harry Puglisi
/S/ ALEXANDER C. SCHWARTZ, JR. Director
Alexander C. Schwartz, Jr.
/S/ ANTHONY L. WATSON Director
Anthony L. Watson
/S/ JAMES K. RANSOM Vice President (Principal
Accounting James K. Ransom Officer)
<PAGE>
EXHIBIT INDEX
Sequential
Exhibit Page
Number Description
4.1 Restated Certificate of
Incorporation of The Money Store
Inc.*
4.2 Amended and Restated By-Laws of
The Money Store Inc. Incorporated by
reference to Exhibit 3.2 to
Registration Statement on Form S-1
(No. 33-41172).
4.3 1995 Stock Incentive Plan of The Money
Store Inc.*
5 Opinion of Eric R. Elwin, Esq.,
Corporate Counsel of The Money Store
Inc.*
23.1 Consent of Eric R. Elwin, Esq.,
Corporate Counsel of The Money
Store Inc. (included in Exhibit 5
hereto).
23.2 Consent of KPMG Peat Marwick.*
24 Power of Attorney. Included at
page II-5.
*Filed herewith by electronic submission.
EXHIBIT 4.1
RESTATED CERTIFICATE OF INCORPORATION
OF
THE MONEY STORE INC.
Pursuant to the provisions of Section 14A:9-5, Corporations, General, of
the New Jersey Statutes, the undersigned corporation hereby adopts the following
Restated Certificate of Incorporation:
FIRST: The name of the corporation is
THE MONEY STORE INC.
SECOND: The purpose for which the corporation is organized to engage in is
any activity within the purposes for which corporations may be organized under
the New Jersey Business Corporation Act.
THIRD: A. The total number of shares which the corporation is authorized to
issue is twenty-five million (25,000,000), of which twenty-four million
(24,000,000) shares shall be Common Stock, no par value, and one million
(1,000,000) shares shall be Preferred Stock with no par value.
B. The Board of Directors of the corporation is authorized at any time and
from time to time, to issue the Preferred Stock in one or more series, and, in
connection with the creation of each such series, to fix by the resolution or
resolutions providing for the issue of shares thereof the number of shares to be
included in such series, and the designation, powers, preferences and rights of
the shares of each such series and the qualifications, limitations or
restrictions thereof, to the fullest extent now or hereafter permitted by the
laws of the State of New Jersey. The authority of the Board of Directors with
respect to each series of Preferred Stock shall include, but not be limited to,
determination of the following:
(i) The number of shares constituting that series and the distinctive
designation of that series;
(ii) The dividend rate on the shares of that series, whether dividends
shall be cumulative, and, if so, the date or dates, and the relative rights of
priority, if any, of payment of dividends on shares of that series;
(iii) Whether that series shall have voting rights, in addition to the
voting rights provided by law, and, if so, the terms of such voting rights;
(iv) Whether that series shall have conversion privileges, and, if so, the
terms and conditions of such conversion, including provision for adjustment of
the conversion rate in such events as the Board of Directors shall determine;
(v) Whether or not the shares of that series shall be redeemable, and, if
so, the terms and conditions of such redemption, including the date or date upon
or after which they shall be redeemable, and the amount per share payable in
case of redemption which amount may vary under different conditions and at
different redemption rates;
(vi) Whether that series shall have a sinking fund for the redemption or
purchase of shares of that series, and, if so, the terms and amount of such
sinking fund;
(vii) The rights of the shares of that series in the event of voluntary or
involuntary liquidation, dissolution or winding up of the corporation, and the
relative rights of priority, if any, of payment of shares of that series; and
(viii) Any other relative rights, preferences and limitations of that
series.
Dividends on outstanding shares of Preferred Stock shall be paid or
declared and set apart for payment before any dividends shall be paid or
declared and set apart for payment on the Common Stock with respect to the same
dividend period.
If upon any voluntary or involuntary liquidation, dissolution or winding up
of the corporation, the assets available for distribution to holders of shares
of Preferred Stock of all series shall be insufficient to pay such holders the
full preferential amount to which they are entitled, then such assets shall be
distributed ratably among the shares of all series of Preferred Stock in
accordance with the respective preferential amounts (including unpaid cumulative
dividends, if any) payable with respect thereto.
C. Except for and subject to those rights expressly granted to the holders
of Preferred Stock, or any series thereof, pursuant hereto or pursuant to the
authority hereby vested in the Board of Directors or except as may be provided
by the laws of the State of New Jersey, the holders of Common Stock shall have
exclusively all rights of shareholders including but not limited to the entire
voting power, all dividends declared by the corporation and all assets of the
corporation in the event of any liquidation, dissolution or winding up of the
corporation. Subject to paragraph D of this Section Third covering elections of
directors, each holder of Common Stock shall be entitled to one vote in person
or by proxy for each share.
D. At each election for directors each shareholder who is entitled to vote
at such election shall have the right to vote, in person or by proxy, the number
of shares owned by him for as many persons as there are directors to be elected
and for whose election he has a right to vote, or to cumulate his votes by
giving one candidate as many votes as the number of his shares shall equal, or
to distribute such votes on the same principle among any number of such
candidates.
FOURTH: A. The number of directors constituting the entire Board of
Directors shall be determined in the By-Laws as provided therein; provided,
however, that the number of directors shall not be reduced so as to shorten the
term of any director at the time in office; and provided further, that the
number of directors constituting the entire Board of Directors shall be seven
unless otherwise fixed by a majority of the entire Board of Directors.
B. The Board of Directors shall be divided into three classes to be equal,
or as nearly equal as possible, in number: Class A, Class B and Class C; the
term of office of those of the Class A to expire at the annual meeting of
shareholders next ensuing after the date of this Restated Certificate of
Incorporation; of the Class B one year thereafter; of the Class C two years
thereafter; and at each annual election held after such classification and
election, directors of each class shall be chosen for three year terms to
succeed those whose terms expire.
C. The power to fill vacancies on the Board of Directors (whether by reason
of resignation, removal with or without cause, creation of new directorships or
otherwise) shall be vested solely in the Board of Directors, except as provided
below, and vacancies may be filled by a majority of the directors then in
office, although less than a quorum, unless all directorships are vacant, in
which case the shareholders shall fill the then existing vacancies. Any director
chosen by the Board of Directors to fill a vacancy shall hold office only until
the next election of directors by shareholders and until that director's
successor shall be elected and shall have qualified. In the case of removal of a
director by the affirmative vote of the shareholders pursuant to Paragraph E of
this Section Fourth, the vacancy created by such removal shall be filled by the
affirmative vote of the holders of record of a majority of the outstanding
shares of stock entitled to vote thereon; provided that should the shareholders
entitled to vote thereon fail to elect a director to fill a vacancy caused by
the removal of a director by the affirmative vote of the shareholders pursuant
to Paragraph E of this Section Fourth, such vacancy shall be filled by the Board
of Directors as provided herein.
D. Special meetings of the shareholders of the corporation for any purpose
may be called at any time by the Board of Directors, or by a committee of the
Board of Directors which has been duly designated by the Board of Directors and
whose power and authority, as provided in a resolution of the Board of Directors
or in the By-Laws of the corporation, include the power to call such meetings.
Special meetings may also be called upon request, in writing, of the holders of
record of 66-2/3% of the outstanding shares of stock entitled to vote at such a
meeting.
E. Notwithstanding any other provisions of this Restated Certificate of
Incorporation or the By-Laws of the corporation (and notwithstanding the fact
that some lesser percentage may be specified by this Restated Certificate of
Incorporation or the By-Laws of the corporation), any director or the entire
Board of Directors of the corporation may be removed at any time, but only by
the affirmative vote of the holders of record of 66-2/3% of the outstanding
shares of capital stock of the corporation entitled to vote generally in the
election of directors (considered for this purpose as one class) cast at a
meeting of the shareholders called for that purpose, and the vacancy caused by
such removal shall be filled as provided herein; provided that whenever the
holders of any one or more series of Preferred Stock shall have the right,
voting separately as a class, to elect one or more directors of the corporation,
as the provisions of this paragraph E of this Section Fourth shall not apply
with respect to the director or directors elected by such holders of Preferred
Stock and the provisions in the Certificate of Designation of such class or
series of Preferred Stock shall apply, in respect of removal, with or without
cause, of a director or directors so elected.
FIFTH: The corporation shall, to the fullest extent permitted by Section
14A:3-5, Corporations, General, of the New Jersey Statutes, as it exists on the
date hereof or as it may hereafter be amended, or by any successor thereto,
indemnify any and all persons whom it shall have power to indemnify under said
section from and against any and all of the expenses, liabilities or other
matters referred to in or covered by said section. The corporation shall advance
expenses to the fullest extent permitted by said section. Such right to
indemnification and advancement of expenses shall continue as to a person who
has ceased to be a director, officer, employee or agent and shall inure to the
benefit of the heirs, executors and administrators of such a person. The
indemnification and advancement of expenses provided for herein shall not be
deemed exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any By-Law, agreement, vote of
shareholders or disinterested directors or otherwise.
SIXTH: A director or officer shall not be personally liable to the
corporation or its shareholders for damages for breach of any duty owed to the
corporation or its shareholders, except that a director or officer shall not be
relieved from liability for any breach of duty based upon an act or omission (a)
in breach of the duty of loyalty to the corporation or its shareholders, (b) not
in good faith or involving a knowing violation of law, or (c) resulting in
receipt by such person of an improper personal benefit.
SEVENTH: A. In addition to any affirmative vote required by the New Jersey
Shareholders Protection Act, Section 14A:10A, Corporations General, of the New
Jersey Statutes, as it exists on the date hereof or as it may hereafter be
amended, or by any successor thereto, or this Restated Certificate of
Incorporation, and except as otherwise expressly provided in paragraph B of this
Section Seventh, no Business Combination (as hereinafter defined) shall be
consummated unless such Business Combination shall have been approved by the
affirmative vote of the holders of record of outstanding shares representing at
least 66- 2/3% of the voting power of the then outstanding Voting Shares (as
hereinafter defined), voting together as a single class. Such affirmative vote
shall be required notwithstanding the fact that no vote may be required by law
or that a lesser percentage may be specified in this Restated Certificate of
Incorporation or in any agreement with any national securities exchange or
otherwise.
B. The provisions of paragraph A of this Section Seventh shall not be
applicable to any particular Business Combination and such Business Combination
shall require only such affirmative vote as is required by law and any other
provision of this Restated Certificate of Incorporation, if the Business
Combination shall have been approved by a majority of the Continuing Directors
(as hereinafter defined) or all of the following conditions shall have been met:
(i) The transaction constituting the Business Combination shall provide for
consideration to be received by all holders of Common Stock in exchange for all
their shares of Common Stock, and the aggregate amount of the cash and the Fair
Market Value (as hereinafter defined) as of the date of the consummation of the
Business Combination of consideration other than cash to be received per share
by holders of Common Stock in such Business Combination shall be at least equal
to the higher of the following:
(a) if applicable, the highest per-share price (including any brokerage
commissions, transfer taxes and soliciting dealers' fees) paid in order to
acquire any shares of Common Stock beneficially owned by an Interested Person
(1) within the two-year period immediately prior to the Announcement Date (as
hereinafter defined), (2) within the two-year period immediately prior to the
Determination Date (as hereinafter defined) or (3) in the transaction in which
it became an Interested Person, whichever is highest; or
(b) the Fair Market Value per share of Common Stock on the Announcement
Date or on the Determination Date, whichever is higher;
(ii) If the transaction constituting the Business Combination shall provide
for a consideration to be received by holders of any class or series of
outstanding Voting Shares other than Common Stock the aggregate amount of the
cash and the Fair Market Value as of the date of the consummation of the
Business Combination of consideration other than cash to be received per share
shall be at least equal to the highest of the following (it being intended that
the requirements of this subparagraph (ii) shall be required to be met with
respect to every class and series of outstanding Voting Shares, whether or not
an Interested Person has previously acquired any shares of a particular class of
Voting Shares):
(a) if applicable, the highest per-share price (including any brokerage
commissions, transfer taxes and soliciting dealers fees) paid in order to
acquire any shares of Common Stock beneficially owned by a Interested Person (1)
within the two-year period immediately prior to the Announcement Date, (2)
within the two-year period immediately prior to the Determination Date or (3) in
the transaction in which it became an Interested person, whichever is highest;
or
(b) the Fair Market Value per share of such class or series of Voting
Shares on the Announcement Date or the Determination Date, whichever is higher;
or
(c) if applicable, the highest preferential amount per share to which the
holders of shares of such class or series of Voting Shares are entitled in the
event of any voluntary or involuntary liquidation, dissolution or winding up of
the corporation;
(iii) The price determined in accordance with subparagraphs (i) and (ii) of
this paragraph B shall be subject to appropriate adjustment in the event of any
recapitalization, stock dividend, stock split, combination of shares or similar
event;
(iv) The consideration to be received by holders of a particular class or
series of outstanding Voting Shares (including Common stock) shall be in cash or
in the same form as was previously paid in order to acquire shares of such class
or series of Voting Shares which are beneficially owned by an Interested Person
and, if an Interested Person beneficially owns shares of any class or series of
Voting Shares which were acquired with varying forms of consideration, the form
of consideration for such class or series of Voting Shares shall be either cash
or the form used to acquire the largest number of shares of such class or series
of Voting Shares beneficially owned by it;
(v) After such Interested Person has become an Interested Person and prior
to the consummation of such Business Combination, such Interested Person shall
not have become the beneficial owner of any additional shares of Voting Shares
except as part of the transaction in which it became an Interested Person;
(vi) After such Interested Person has become an Interested Person, such
Interested Person shall not have received the benefit, directly or indirectly
(except proportionately as a stockholder), of any loans, advances, guarantees,
pledges or other financial assistance or any tax credits or other tax advantages
provided by the corporation, whether in anticipation of or in connection with
such Business Combination or otherwise; and
(vii) A proxy or information statement describing the proposed Business
Combination and complying with the requirements of the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), and the rules and regulations
thereunder (or any subsequent provisions replacing the Exchange Act or such
rules or regulations) shall be mailed to the stockholders of the corporation, no
later than the earlier of (a) thirty (30) days prior to any vote on the proposed
Business Combination or (b) if no vote on such Business Combination is required,
sixty (60) days prior to the consummation of such Business Combination (whether
or not such proxy or information statement is required to be mailed pursuant to
the Exchange Act or subsequent provisions). Such proxy statement shall contain
at the front thereof, in a prominent place, any recommendations as to the
advisability (or inadvisability) of the Business Combination which the
Continuing Directors, or any of them, may have furnished in writing and, if
deemed advisable by a majority of the Continuing Directors, an opinion of a
reputable investment banking firm as to the fairness (or lack of fairness) of
the terms of such Business Combination, from the point of view of the holders of
Voting Shares other than an Interested Person (such investment banking firm to
be selected by a majority of the Continuing Directors to be furnished with all
information it reasonably requests and to be paid a reasonable fee for its
services upon receipt by the corporation of such opinion).
C. For the purpose of this section:
(i) "Affiliate" of another Person shall mean (a) any Person directly or
indirectly owning, controlling, or holding with power to vote, 5% or more of the
outstanding voting securities of such other Person; (b) any Person 5% or more of
whose outstanding voting securities are directly or indirectly owned,
controlled, or held with power to vote, by such other Person; (c) any Person
directly or indirectly controlling, controlled by, or under common control with,
such other Person; (d) any officer, director, partner, copartner, or employee of
such other Person; (e) if such other Person is an investment company, any
investment adviser thereof or any member of an advisory board thereof; and (f)
if such other Person is an unincorporated investment company not having a board
of directors, the depositor thereof.
(ii) "Announcement Date" shall mean the date of the first public
announcement of the proposed Business Combination.
(iii) "Business Combination shall mean:
(a) any merger or consolidation of the corporation or any direct or
indirect subsidiary of the corporation with (i) an Interested Person (as
hereinafter defined) or (ii) any other Person (as hereinafter defined) whether
or not itself an Interested Person which is, or after such merger or
consolidation would be, an Affiliate (as hereinafter defined) of an Interested
Person, or
(b) any sale, lease, exchange, mortgage, pledge, grant of a security
interest, transfer or other disposition (in one transaction or a series of
transactions) to or with (i) an Interested Person or (ii) any other Person
(whether or not itself an Interested Person) which is, or after such sale,
lease, exchange, mortgage, pledge, grant of a security interest, transfer or
other disposition would be, an Affiliate of an Interested Person, directly or
indirectly, of assets of the corporation (including, without limitation, any
voting securities of any direct or indirect subsidiary of the corporation) or
any direct or indirect subsidiary of the corporation, or both, having an
aggregate Fair Market Value of $10,000,000 or more, or
(c) the issuance or transfer by the corporation or any direct or indirect
subsidiary of the corporation (in one transaction or in a series of
transactions) of any securities of the corporation or any direct or indirect
subsidiary of the corporation, or both, to (i) an Interested Person or (ii) any
other Person (whether or not itself an Interested Person) which is, or after
such issuance or transfer would be, an Affiliate of an Interested Person in
exchange for cash, securities or other property (or a combination thereof)
having an aggregate Fair Market Value of $10,000,000 or more, other than the
issuance of securities upon the conversion of convertible securities of the
corporation or any direct or indirect subsidiary of the corporation which were
not acquired by such Interested Person (or such other Person) from the
corporation or a direct or indirect subsidiary of the corporation, or
(d) the adoption of any plan or proposal for the liquidation, dissolution
or winding up of the corporation proposed by or on behalf of (i) an Interested
Person or (ii) any other Person (whether or not itself an Interested Person)
which is or after such liquidation, dissolution or winding up would be, an
Affiliate of an Interested Person, or
(e) any reclassification of securities (including any reverse stock split),
or recapitalization of the corporation, or any merger or consolidation of the
corporation with any of its direct or indirect subsidiaries or any other
transaction (whether or not with or into or otherwise involving an Interested
Person) which has the effect, directly or indirectly, of increasing the
proportionate share of the outstanding shares of any class of equity or
convertible securities of the corporation or any direct or indirect subsidiary
of the corporation directly or indirectly beneficially owned by (i) an
Interested Person or (ii) any other Person (whether or not itself an Interested
Person) which is, or after such reclassification, recapitalization, merger or
consolidation or other transaction would be, an Affiliate of an Interested
Person.
(iv) "Continuing Director" shall mean (i) any member of the Board of
Directors of the corporation, while such Person is a member of the Board, who is
not an Interested Person, or an Affiliate of an Interested Person, or a
representative or nominee of an Interested Person or of any such Affiliate, and
who was a member of the Board prior to the date of this Restated Certificate of
Incorporation, or (ii) any Person who subsequently becomes a member of the
Board, while such Person is a member of the Board, who is not an Interested
Person, or an Affiliate of an Interested Person, or a representative or nominee
of an Interested Person or of any such Affiliate, if such Person's nomination
for election or election to the Board is recommended or approved by a majority
of the Continuing Directors.
(v) "Determination Date" shall mean the date on which an Interested Person
became an Interested Person.
(vi) "Fair Market Value" on a specified date shall mean (i) with respect to
shares of Common Stock or shares of any other class or series of Voting Shares,
of the average of the bid and asked closing prices at which one such share is
traded on the over-the-counter market, as reported on the National Association
of Security Dealers Automated Quotation System, or on the stock exchange, if
any, on which such shares are primarily traded, but if no such shares were
traded on such date, then on the last previous date on which a share was so
traded, or, if none of the above are applicable, the value of a share as
established by the Continuing Directors for such date using any reasonable
method of valuation, and (ii) with respect to all other property, real or
personal, other than cash, the fair market value of that property on the date in
question as determined by the Board of Directors in good faith.
(vii) "Interested Person" shall mean any Person other than the corporation
that:
(1) is the beneficial owner, directly or indirectly, of 10% or more of the
voting power of the outstanding Voting Shares of the corporation; or
(2) is an Affiliate of that Person and at any time within the five-year
period immediately prior to the date in question was the beneficial owner,
directly or indirectly, of 10% or more of the voting power of the then
outstanding stock of the corporation.
(viii) "Person" shall mean an individual, corporation, a partnership, an
association, a joint-stock company, a trust or any unincorporated organization.
(ix) "Voting Shares" shall mean stock of all classes and series of the
corporation entitled to vote generally in the election of directors.
D. A majority of the Continuing Directors shall have the power and duty to
determine for the purposes of this Section Seventh, on the basis of information
known to them after reasonable inquiry, all facts necessary to determine
compliance with this Section Seventh including, without limitation, (i) whether
a Person is an Interested Person, (ii) the number of shares of Voting Shares
beneficially owned by any Person, (iii) whether a Person is an Affiliate of
another, (iv) whether the assets which are the subject of any Business
Combination have, or the consideration to be received for the issuance or
transfer of securities by the corporation or any subsidiary in any Business
Combination has, an aggregate Fair Market Value of $10,000,000 or more, (v)
whether the requirements of this Section Seventh have been met and (vi) such
other matters with respect to which a determination is required under this
Section Seventh. The good faith determination of a majority of the Continuing
Directors on such matters shall be conclusive and binding for all purposes of
this Section Seventh.
E. Nothing contained in this section shall be construed to relieve the
members of the Board of Directors or an Interested Person from any fiduciary
obligation imposed by law.
F. The fact that any Business Combination complies with the provisions of
this Section Seventh shall not be construed to impose any fiduciary duty,
obligation or responsibility on the Board of Directors, or any member thereof,
to approve such Business Combination or recommend its adoption or approval to
the shareholders of the corporation, nor shall such compliance limit, prohibit
or otherwise restrict in any manner the Board of Directors, or any member
thereof, with respect to evaluations of or actions and responses taken with
respect to such Business Combination.
EIGHTH: The corporation reserves the right to amend, alter, change or
repeal any provision contained in this Restated Certificate of Incorporation, in
the manner now or hereafter prescribed by statute, and all rights conferred on
shareholders herein are granted subject to this reservation. Notwithstanding the
preceding sentence, the provisions of this Restated Certificate of Incorporation
relating to (i) cumulative voting (Section Third, Paragraph D), (ii) any matter
with respect to the Board of Directors (all of Section Fourth), (iii) the merger
or consolidation of the corporation (Section Seventh), and (iv) the amendment,
alteration, change or repeal of this Restated Certificate of Incorporation
(Section Eighth) may not be amended without the affirmative vote of the holders
of 66-2/3% of the shares entitled to vote in the election of directors.
NINTH: In furtherance and not in limitation of the powers conferred by
statute, the Board of Directors is expressly authorized to amend, alter, change
and repeal the By-Laws of the corporation.
TENTH: The address of the corporation's current registered office is 2840
Morris Avenue, Union, New Jersey 07083 and the name of the corporation's current
registered agent is Eric R. Elwin.
ELEVENTH: The number of directors constituting the current Board of
Directors is five. The name and addresses of the directors constituting the
current Board of Directors are:
NAME
ADDRESS
Alan Turtletaub
65 Dorison Drive
Short Hills, NJ 07078
Marc Turtletaub
4434 Mapel Lane
Carmichael, CA 95608
Morton Dear
22 Fordham Road
Livingston, NJ 07039
Anthony R. Medici
37 Remington Drive
Edison, NJ 08817
Harry Puglisi
46 Wisteria Street
Edison, NJ 08817
DATED, this 12th day of June, 1991.
THE MONEY STORE INC.
By:/s/ Morton Dear
Morton Dear
Executive Vice President and
Secretary
(SEAL)
<PAGE>
CERTIFICATE OF AMENDMENT
TO THE
RESTATED CERTIFICATE OF INCORPORATION
OF
THE MONEY STORE INC.
Pursuant to the provisions of Section 14A:9-2(4) of the New Jersey
Business Corporation Act, the undersigned corporation executes the following
Certificate of Amendment to its Restated
Certificate of Incorporation:
1. The name of the corporation is The Money Store Inc.
(the "Corporation").
2. Paragraph A of Article THIRD of the Corporation's
Restated Certificate of Incorporation shall be amended to read
as follows:
"The total number of shares which the corporation is
authorized to issue is One Hundred Ten Million (110,000,000),
of which One Hundred Million (100,000,000) shares shall be
Common Stock, with no par value, and Ten Million (10,000,000)
shares shall be Preferred Stock, with no par value."
3. The amendment was adopted by the shareholders of the
Corporation on October 12, 1995.
4. The total number of shares entitled to vote on the
amendment was 13,637,900.
5. The number of shares voting for and against the
amendment was as follows:
Number of Shares Number of Shares
Voting For Voting Against
Amendment
8,008,887 3,826,559
Dated: October 12, 1995
THE MONEY STORE INC.
By: /s/ Morton Dear
Name: Morton Dear
Title: Executive Vice
President
<PAGE>
CERTIFICATE OF AMENDMENT
TO THE
RESTATED CERTIFICATE OF INCORPORATION
OF
THE MONEY STORE INC.
Pursuant to the provisions of Section 14A:9-2(4) of the New Jersey
Business Corporation Act, the undersigned corporation executes the following
Certificate of Amendment to its Restated
Certificate of Incorporation:
1. The name of the corporation is The Money Store Inc.
(the "Corporation").
2. Paragraph A of Article THIRD of the Corporation's
Restated Certificate of Incorporation shall be amended to read
as follows:
"The total number of shares which the corporation is
authorized to issue is Two Hundred Sixty Million
(260,000,000), of which Two Hundred Fifty Million
(250,000,000) shares shall be Common Stock, with no par value,
and Ten Million (10,000,000) shares shall be Preferred Stock,
with no par value."
3. The amendment was adopted by the shareholders of the
Corporation on May 15, 1996.
4. The total number of shares entitled to vote on the
amendment was 57,394,794.
5. The number of shares voting for and against the
amendment was as follows:
Number of Shares Number of Shares
Voting For Voting Against
Amendment Amendment
35,657,613 15,159,408
Dated: May 15, 1996 THE MONEY STORE INC.
By: /s/ Morton Dear
Name: Morton Dear
Title: Executive Vice
President
<PAGE>
EXHIBIT 4.3
1995 STOCK INCENTIVE PLAN
OF
THE MONEY STORE INC.
1. Purpose. The purpose of this Stock Incentive Plan is to advance the
interests of the Corporation by encouraging and enabling the acquisition of a
larger personal proprietary interest in the Corporation by directors and
employees of the Corporation and its Subsidiaries upon whose judgment and keen
interest the Corporation is largely dependent for the successful conduct of its
operations and by providing such directors and employees with incentives to put
forth maximum efforts for the success of the Corporation's business. It is
anticipated that the acquisition of such proprietary interest in the Corporation
and such incentives will stimulate the efforts of such directors and employees
on behalf of the Corporation and its Subsidiaries and strengthen their desire to
remain with the Corporation and its Subsidiaries. It is also expected that such
incentives and the opportunity to acquire such a proprietary interest will
enable the Corporation and its Subsidiaries to attract desirable personnel.
2. Definitions. When used in this Plan, unless the context
otherwise requires:
(a) "Alternative Rights" shall have the meaning set forth
in Section 7.
(b) "Board of Directors" shall mean the Board of Directors
of the Corporation, as constituted at any time.
(c) "Chairman of the Board" shall mean the person who at the time shall be
Chairman of the Board of Directors.
(d) "Committee" shall mean the Committee hereinafter described in
Section 3.
(e) "Conjunctive Rights" shall have the meaning set forth in Section 7.
(f) "Corporation" shall mean The Money Store Inc.
(g) "Eligible Persons" shall mean those persons described in Section 4 who
are potential recipients of Incentive Awards.
(h) "Fair Market Value" on a specified date shall mean the closing price at
which a Share is traded on the stock exchange, if any, on which Shares are
primarily traded or, if the Shares are not then traded on a stock exchange, the
closing price of a Share as reported on the NASDAQ National Market System or, if
the Shares are not then traded on the NASDAQ National Market System, the average
of the closing bid and asked prices at which a Share is traded on the
over-the-counter market, but if no Shares were traded on such date, then on the
last previous date on which a Share was so traded, or, if none of the above are
applicable, the value of a Share as established by the Committee for such date
using any reasonable method of valuation.
(i) "Incentive Award" shall mean an Option, Restricted Stock Award or
Rights granted pursuant to this Plan.
(j) "Options" shall mean the Stock Options granted pursuant to this Plan.
(k) "Plan" shall mean this 1995 Stock Incentive Plan of The Money Store
Inc., as adopted by the Board of Directors on August 15, 1995, as such Plan from
time to time may be amended.
(l) "President" shall mean the person who at the time shall be the
President of the Corporation.
(m) "Restricted Shares" shall mean the Shares issued as a result of a
Restricted Stock Award.
(n) "Restricted Stock Award" shall mean a grant of Shares or of the right
to purchase Shares pursuant to Section 12 hereof. Such Shares, when and if
issued, shall be subject to such transfer restrictions and risk of forfeiture as
the Committee shall determine at the time the Award is granted, until such
specific conditions are met. Such conditions may be based on continuing
employment or achievement of pre-established performance objectives, or both.
(o) "Rights" shall mean stock appreciation rights granted pursuant to the
Plan, which shall entitle the holder thereof to receive from the Corporation
cash or Shares or a combination of cash and Shares based upon the excess of the
Fair Market Value of Shares at the time of exercise over the purchase price of
the Shares subject to the related Option, or the Fair Market Value of Shares on
the date the Rights were granted, as the case may be, subject to the terms and
conditions of the Plan.
(p) "Share" shall mean a share of common stock of the Corporation.
(q) "Spread" shall mean (i) with respect to Conjunctive Rights and
Alternative Rights, the excess of the Fair Market Value of one Share on the date
of exercise of such Rights over the purchase price per Share payable under the
related Option and (ii) with respect to Rights not granted in connection with an
Option, the excess of the Fair Market Value of one Share on the date of exercise
of such Rights over the Fair Market Value of one Share on the date such Rights
were granted.
(r) "Subsidiary" shall mean any corporation 50% or more of whose stock
having general voting power is owned by the Corporation, or by another
Subsidiary as herein defined, of the Corporation.
3. Committee. The Plan shall be administered by a Committee of the Board of
Directors, which shall consist of two or more directors of the Corporation, each
of whom shall be a "disinterested person" within the meaning of Rule 16b-3(c)(2)
under the Securities Exchange Act of 1934, as from time to time amended (the
"Exchange Act"). The members of the Committee shall be selected by the Board of
Directors. Any member of the Committee may resign by giving written notice
thereof to the Board of Directors, and any member of the Committee may be
removed at any time, with or without cause, by the Board of Directors. If, for
any reason, a member of the Committee shall cease to serve, the vacancy shall be
filled by the Board of Directors. The Committee shall establish such rules and
procedures as are necessary or advisable to administer the Plan.
4. Participants. Except as hereinafter provided, the class of persons who
are potential recipients of Incentive Awards granted under this Plan consist of
(i) the directors of the Corporation or a Subsidiary and (ii) employees of the
Corporation or a Subsidiary, as determined by the Committee. The parties to whom
Incentive Awards are granted under this Plan, and the number of Shares subject
to each such Incentive Award, shall be determined by the Committee in its sole
discretion, subject, however, to the terms and conditions of this Plan. Persons
to whom Incentive Awards may be granted include employees who are also directors
of the Corporation or a Subsidiary and also directors who are not also
employees. Notwithstanding the foregoing, Alan Turtletaub and Marc Turtletaub
shall not be eligible to receive grants of Incentive Awards under this Plan.
5. Shares. Subject to the provisions of Section 16 hereof, the Committee
may grant Incentive Awards with respect to an aggregate of up to 750,000 Shares,
all of which shares may be either Shares held in treasury or authorized but
unissued Shares; provided, however, that Alternative Rights shall not be subject
to the foregoing limitation. The maximum number of Shares which may be the
subject of Options and Rights granted during the duration of the Plan to any
individual who is a "covered employee" within the meaning of Section 162(m) of
the Code shall not exceed 250,000 Shares. If the Shares that would be issued or
transferred pursuant to any Incentive Awards are not issued or transferred and
cease to be issuable or transferable for any reason, or if Restricted Shares
which are subject to a Restricted Stock Award are forfeited, the number of
Shares subject to such Incentive Award will no longer be charged against the
limitation provided for herein and may again be made subject to Incentive
Awards; provided, however, that Shares as to which an Option has been
surrendered in connection with the exercise of a related Alternative Right shall
not again be available for the grant of any further Incentive Awards; and
provided, further, that the counting of Shares subject to Incentive Awards
granted under the Plan against the number of Shares available for further
Incentive Awards shall in all cases conform to the requirements of Rule 16b-3
under the Exchange Act. Notwithstanding the preceding, with respect to any
Option and/or any Rights granted to any individual who is a "covered employee"
within the meaning of Section 162(m) of the Code that is cancelled, the number
of shares subject to such Option and/or Rights shall continue to count against
the maximum number of shares which may be the subject of Options and Rights
granted to such individual. For purposes of the preceding sentence, if, after
grant, the exercise price of an Option and/or the base amount of any Rights is
reduced, such reduction shall be treated as a cancellation of such Option and/or
Rights and the grant of a new Option and/or Rights (if any), and both the
cancellation of the Option and/or Rights and the new Option and/or Rights shall
reduce the maximum number of shares for which Options and Rights may be granted
to the holder of such Option and/or Rights.
6. Grant of Options. The number of Options to be granted to any Eligible
Person shall be determined by the Committee in its sole discretion. At the time
an Option is granted, the Committee may, in its sole discretion, designate
whether such Option (a) is to be considered as an incentive stock option within
the meaning of Section 422 of the Internal Revenue Code of 1986, as amended
("Internal Revenue Code"), or (b) is not to be treated as an incentive stock
option for purposes of this Plan and the Internal Revenue Code. No Option which
is intended to qualify as an incentive stock option shall be granted under this
Plan to any individual who, at the time of such grant, is not an employee of the
Corporation or a Subsidiary.
Notwithstanding any other provision of this Plan to the contrary, to the
extent that the aggregate Fair Market Value (determined as of the date an Option
is granted) of the Shares with respect to which Options which are designated as
(or deemed to be) incentive stock options granted to an employee (and any
incentive stock options granted to such employee under any other incentive stock
option plan maintained by the Corporation or any Subsidiary that meets the
requirements of Section 422 of the Internal Revenue Code) first become
exercisable in any calendar year exceeds $100,000, such Options shall be treated
as Options which are not incentive stock options. Options with respect to which
no designation is made by the Committee shall be deemed to be incentive stock
options to the extent that the $100,000 limitation described in the preceding
sentence is met. This paragraph shall be applied by taking options into account
in the order in which they are granted.
Nothing herein contained shall be construed to prohibit the issuance of
Options at different times to the same person.
The form of Option shall be determined from time to time by the Committee.
A certificate of Option signed by the Chairman of the Board or the President or
a Vice President of the Corporation, attested by the Treasurer or an Assistant
Treasurer, or Secretary or an Assistant Secretary of the Corporation and bearing
the seal of the Corporation affixed thereto, shall be issued to each person to
whom an Option is granted. The certificate of Option for an Option shall be
legended to indicate whether or not the Option is an incentive stock option.
7. Grant of Rights. The Committee shall have the authority in its
discretion to grant to any Eligible Person Rights which may be granted
separately, or in connection with an Option at the time of grant of the Option.
Rights granted in connection with an Option shall be granted with respect to the
same number of Shares covered by the Option, subject to adjustment pursuant to
the provisions of Section 16 hereof, and may be exercised, as determined by the
Committee in its discretion at the time of the grant of the Rights, either in
conjunction with, or as an alternative to, the exercise of the related Option.
Conjunctive Rights ("Conjunctive Rights") granted in connection with an
Option shall entitle the holder thereof to receive payment from the Corporation,
determined as hereinafter provided, only if and to the extent that the related
Option is exercisable and is exercised. Upon any exercise of an Option in
respect of which Conjunctive Rights shall have been granted, the holder of the
Rights shall be entitled to receive payment of an amount equal to the product
obtained by multiplying (i) the Spread, or a portion of the Spread determined by
the Committee at the time of grant, by (ii) the number of Shares in respect of
which the related Option shall have then been so exercised.
Alternative Rights ("Alternative Rights") granted in connection with an
Option shall entitle the holder thereof to receive payment from the Corporation,
determined as hereinafter provided, only if and to the extent that the related
Option is exercisable, by surrendering the Option with respect to the number of
Shares as to which such Rights are then exercised. Such Option, to the extent
surrendered, shall be deemed exercised. Upon any exercise of Alternative Rights,
the holder thereof shall be entitled to receive payment of an amount equal to
the product obtained by multiplying (i) the Spread, or a portion of the Spread
determined by the Committee at the time of grant, by (ii) the number of Shares
in respect of which the Rights shall have then been so exercised.
Notwithstanding anything contained herein, Alternative Rights granted in
connection with an Option that is an incentive stock option may not be exercised
at any time when the Fair Market Value of the Shares subject thereto is less
than the exercise price of such Option.
Rights granted without relationship to an Option shall be exercisable for a
duration determined by the Committee, but in no event more than ten years from
the date of grant. Such Rights shall entitle the holder, upon the exercise
thereof, to receive payment from the Corporation of an amount equal to the
product obtained by multiplying (i) the Spread, or a portion of the Spread
determined by the Committee at the time of grant, by (ii) the number of Shares
in respect of which the Rights shall have then been so exercised.
Notwithstanding anything contained herein, the Committee may, in its sole
discretion, limit the amount payable upon the exercise of Rights. Any such
limitation shall be determined as of the date of grant and noted on the
certificate evidencing the grant of the Rights.
At the holder's election, payment of the amount determined hereunder upon
the exercise of Rights may be made solely in cash, or solely in Shares valued at
their Fair Market Value on the date of exercise of Rights, or in a combination
of cash and Shares. Notwithstanding any other provision of the Plan or of any
Option or Rights, upon the exercise of Rights, the Committee shall have the
power, in its sole discretion, to disapprove the holder's election as to the
form (i.e., cash or Shares, or part in cash and part in Shares) in which payment
of the Rights will be made and to substitute therefor payment as it determines.
If the Committee does not disapprove an election made upon the exercise of
Rights within 60 days after such exercise or election then the Committee shall
be deemed to have approved such election. No fractional Shares shall be issued
by the Corporation, and settlement therefor shall be made in cash.
Notwithstanding any other provision of the Plan or of the Rights, for
purposes of determining the amount of the Spread in the case of a holder of
Rights who is a Director or officer subject to Section 16(b) of the Exchange
Act, the Committee, in its sole discretion, may designate a single Fair Market
Value per Share with respect to all such holders who exercise Rights during any
single ten-day period specified in Rule 16b-3(e)(3) under the Exchange Act;
provided, however, that the Fair Market Value per Share designated by the
Committee during any such period shall in no event be greater than the highest
Fair Market Value per Share on any day during such period or less than the
lowest Fair Market Value per Share on any day during such period.
The form of Rights shall be as determined from time to time by the
Committee. A certificate of Rights signed by the Chairman of the Board or the
President or a Vice President, attested by the Treasurer or an Assistant
Treasurer, or Secretary or an Assistant Secretary, of the Corporation and having
the seal of the Corporation affixed thereto, shall be delivered to each person
to whom Rights are granted.
8. Purchase Price. The price per Share of the Shares to be purchased
pursuant to the exercise of any Option shall be fixed by the Committee at the
time of grant; provided, however, that the purchase price per Share for the
Shares to be purchased pursuant to the exercise of an incentive stock option
shall not be less than the Fair Market Value of a Share on the day on which the
Option is granted.
The purchase price per Share for Restricted Shares to be purchased pursuant
to Restricted Stock Awards shall be fixed by the Committee at the time of the
grant of the Restricted Stock Award; provided, however, that such purchase price
shall not be less than the par value of such Shares. Payment of such purchase
price shall be made in cash or by check payable to the order of the Corporation,
or by such other method as the Committee may permit.
9. Duration of Options and Related Rights. The duration of any Option
granted under this Plan shall be fixed by the Committee at the time of grant;
provided, however, that no Option shall remain in effect for a period of more
than ten years from the date upon which the Option is granted. The duration of
any Rights granted in connection with any Option shall be coterminous with the
duration of the related Option.
10. Ten Percent Stockholders. Notwithstanding any other provision of this
Plan to the contrary, no Option which is intended to qualify as an incentive
stock option may be granted under this Plan to any employee who, at the time the
Option is granted, owns shares possessing more than ten percent of the total
combined voting power or value of all classes of stock of the Corporation,
unless the exercise price under such Option is at least 110% of the Fair Market
Value of a Share on the date such Option is granted and the duration of such
Option is no more than five years.
11. Exercise of Options and Rights. Except as otherwise provided herein,
Options and Rights, after the grant thereof, shall be exercisable by the holder
at such rate and times as may be fixed by the Committee; provided, however, that
no Options or Rights may be exercised in part or in full prior to six months
following the later of the date of grant or the date of approval of the Plan by
the shareholders of the Corporation as provided in Section 21.
Notwithstanding the foregoing, all or any part of any remaining unexercised
Options or Rights granted to any person may, after approval of the Plan by the
shareholders of the Corporation as provided in Section 21, be exercised in the
following circumstances (but in no event during the six-month period commencing
on the later of the date granted or the date of shareholder approval of the
Plan): (a) immediately upon (but prior to the expiration of the term of the
Option or Rights) the holder's retirement from the Corporation and all
Subsidiaries on or after his 65th birthday, (b) subject to the provisions of
Section 15 hereof, upon the disability (to the extent and in a manner as shall
be determined by the Committee in its sole discretion) or death of the holder,
(c) upon the occurrence of such special circumstance or event as in the opinion
of the Committee merits special consideration, or (d) if, while the holder is
employed by, or serving as a director of, the Corporation or a Subsidiary, there
occurs a Change in Control. For purposes of this Plan, a "Change in Control"
shall be deemed to have occurred if (x) both (i) any "person" or group of
"persons" (as the term "person" is used in Sections 13(d) and 14(d) of the
Exchange Act) ("Person"), acquires (or has acquired during the twelve-month
period ending on the date of the most recent acquisition by such Person) direct
or indirect beneficial ownership of securities of the Corporation representing
40% or more of the combined voting power of the then outstanding securities of
the Corporation and (ii) on the date of the most recent acquisition by any
Person referred to in the preceding clause (i), the direct and indirect
beneficial ownership by Alan Turtletaub and Marc Turtletaub of the securities of
the Corporation represents in the aggregate less than 40% of the combined voting
power of the then outstanding securities of the Corporation or (y) a Person
acquires (or has acquired during the twelve-month period ending on the date of
the most recent acquisition by such Person) assets from the Corporation that
have a total fair market value equal to or more than one-third of the total fair
market value of all of the assets of the Corporation immediately prior to such
acquisition; provided, however, that if any transaction or event or series of
transactions or events resulting in a Change in Control is approved by a
majority of the members of the Board of Directors holding office prior to the
transaction or event or series of transactions or events, then the transaction
or event or series of transactions or events shall not be deemed to be a Change
in Control. Notwithstanding the foregoing, for purposes of subsection (x), a
Change in Control will not be deemed to have occurred if the power to control
(directly or indirectly) the management and policies of the Corporation is not
transferred from a Person to another Person; and, for purposes of subsection
(y), a Change in Control will not be deemed to occur if the assets of the
Corporation are transferred: (i) to a shareholder in exchange for his stock,
(ii) to an entity in which the Corporation has (directly or indirectly) 50%
Ownership, or (iii) to a Person that has (directly or directly) at least 50%
Ownership of the Corporation with respect to its stock outstanding, or to any
entity in which such Person possesses (directly or indirectly) 50% Ownership.
An Option shall be exercised by the delivery of a written notice duly
signed by the holder thereof to such effect ("Exercise Notice"), together with
the Option certificate and the full purchase price of the Shares purchased
pursuant to the exercise of the Option, to the Chairman of the Board or an
officer of the Corporation appointed by the Chairman of the Board for the
purpose of receiving the same. Payment of the full purchase price shall be made
as follows: in cash or by check payable to the order of the Corporation; by
delivery to the Corporation of Shares which shall be valued at their Fair Market
Value on the date of exercise of the Option (provided, that a holder may not use
any Shares acquired pursuant to this Plan or any other plan maintained by the
Company or a Subsidiary unless the holder has beneficially owned such Shares for
at least six months); by providing with the Exercise Notice an order to a
designated broker to sell part or all of the Shares and to deliver sufficient
proceeds to the Corporation, in cash or by check payable to the order of the
Corporation, to pay the full purchase price of the Shares and all applicable
withholding taxes; or by such other methods as the Committee may permit from
time to time. Any Conjunctive Rights granted in connection with such Option
shall be exercised by the inclusion in the Exercise Notice of a notice of
exercise of Rights, together with the Rights certificate and a specification of
the percentages of the Rights which the holder desires to receive in cash and in
Shares.
Within a reasonable time after the exercise of an Option, the Corporation
shall cause to be delivered to the person entitled thereto, a certificate for
the Shares purchased pursuant to the exercise of the Option and, if Conjunctive
Rights have been exercised in connection therewith, the amount of cash and/or a
certificate for the number of Shares determined in accordance with Section 7
hereof. If the Option and any Conjunctive Rights shall have been exercised with
respect to less than all of the Shares subject to the Option and Rights, the
Corporation shall also cause to be delivered to the person entitled thereto a
new Option certificate and a new Rights certificate in replacement of the
certificates surrendered at the time of the exercise of the Option and Rights,
indicating the number of Shares with respect to which the Option and Rights
remain available for exercise, or the original Option certificate and Rights
certificate shall be endorsed to give effect to the partial exercise thereof.
Alternative Rights or Rights not granted in connection with an Option shall
be exercised by the delivery of a duly signed notice in writing to such effect,
together with the Rights certificate, and a specification of the percentages of
the Rights which the holder desires to receive in cash and in Shares. Holders of
Alternative Rights shall also surrender the related Option certificate. Within a
reasonable time thereafter, the Corporation shall cause to be delivered to the
person entitled thereto, the amount of cash and/or a certificate for the number
of Shares determined in accordance with Section 7 hereof. Upon the exercise of
Alternative Rights, the number of Shares subject to exercise under the related
Option or portion thereof shall be reduced by the number of Shares represented
by the Option or portion thereof surrendered. Shares subject to Options or
portions thereof surrendered upon the exercise of Alternative Rights shall not
be available for subsequent Incentive Awards under the Plan. If the Rights shall
have been exercised with respect to less than all of the Shares subject thereto
(or to the related Option, if any), the Corporation shall also cause to be
delivered to the person entitled thereto a Rights certificate (and an Option
certificate, in the case of Alternative Rights) with respect to the difference
between the number of Shares of the Rights certificate (and related Option
certificate, if any) surrendered at the time of the exercise of the Rights and
the number of Shares with respect to which the Rights were so exercised (and the
related Option, if any, was so surrendered), or the original Rights certificate
(and related Option certificate, if any) shall be endorsed to give effect to the
partial exercise (and surrender) thereof.
Notwithstanding any other provision of the Plan or of any Option or Rights,
no Option or Rights granted pursuant to the Plan may be exercised at any time
when the Option or Rights or the granting or exercise thereof violates any law
or governmental order or regulation.
12. Terms and Conditions of Restricted Stock Awards.
(a) All Restricted Shares granted to or purchased by an eligible person
pursuant to the Plan shall be subject to the following conditions:
(i) the Restricted Shares may not be sold, transferred, or
otherwise alienated or hypothecated until the restrictions are
satisfied, removed or expire;
(ii) each certificate representing Restricted Shares issued pursuant
to a Restricted Stock Award under this Plan shall bear a legend making
appropriate reference to the restrictions imposed; and
(iii) the Committee may impose such other conditions as it may deem
advisable on any Restricted Shares granted to or purchased by an eligible person
pursuant to a Restricted Stock Award under this Plan, including, without
limitation, restrictions under the requirements of any stock exchange upon which
such Shares or shares of the same class are then listed, and under any
securities law applicable to such Shares.
(b) The restrictions imposed under subsection (a) hereof upon Restricted
Stock Awards shall lapse in accordance with a schedule or such other conditions
as shall be determined by the Committee, subject to the provisions of Section 15
hereof.
(c) Prior to the satisfaction, expiration or lapse of all of the
restrictions and conditions imposed upon Restricted Shares, a stock certificate
or certificates representing such Restricted Shares shall be registered in the
holder's name but shall be retained by the Corporation for the holder's account.
The holder shall have the right to vote such Restricted Shares and shall have
all other rights and privileges of a beneficial and record owner with respect
thereto, including, without limitation, the right to receive dividends,
distributions and adjustments with respect thereto; provided, however, that such
dividends, distributions and adjustments shall be retained by the Corporation
for the holder's account and for delivery to the holder, together with the stock
certificate or certificates representing such Restricted Shares, as and when
said restrictions and conditions shall have been satisfied, expired or lapsed.
13. Consideration for Incentive Awards. The Corporation shall obtain such
consideration for the grant of an Incentive Award as the Committee in its
discretion may determine.
14. Non-transferability of Incentive Awards. Options and Rights shall not
be transferable or assignable by the holder thereof except to the extent that
the Estate or heirs of a deceased holder of Options or Rights may be permitted
to exercise them. Restricted Stock Awards shall not be transferable or
assignable by the holder thereof, except that any Restricted Shares subject to
restrictions at the time of the holder's death (and any dividends, distributions
and adjustments with respect thereto) shall be transferred to the holder's
Estate or heirs. Incentive Awards may be exercised or surrendered during the
holder's lifetime only by the holder thereof.
15. Termination of Employment or Service. All or any part of any Option
and/or Rights, to the extent unexercised, shall terminate immediately, upon the
cessation or termination for any reason of the holder's employment by, or
service as a director of, the Corporation or any Subsidiary, except that the
holder shall have until the end of the tenth business day following the
cessation of his employment or service with the Corporation or its Subsidiaries,
and no longer, to exercise any unexercised Option and/or Rights that he could
have exercised on the day on which such employment or service terminated;
provided, that such exercise must be accomplished prior to the expiration of the
term of such Option and Rights. Notwithstanding the foregoing, if the cessation
of employment or service is due to retirement on or after attaining the age of
sixty-five (65) years, or to disability (to an extent and in a manner as shall
be determined in each case by the Committee in its sole discretion) or to death,
the holder or the representative of the Estate or the heirs of a deceased holder
shall have the privilege of exercising the Options and Rights which are
unexercised at the time of such retirement, or of such disability or death;
provided, however, that such exercise must be accomplished prior to the
expiration of the term of such Option and Rights and (a) within three months of
the holder's retirement or disability, or (b) within six months of the holder's
death, as the case may be. If the employment or service of any holder of an
Option or Rights with the Corporation or a Subsidiary shall be terminated
because of the holder's violation of the duties of such employment or service
with the Corporation or a Subsidiary as he may from time to time have, the
existence of which violation shall be determined by the Committee in its sole
discretion (which determination by the Committee shall be conclusive) all
unexercised Options and Rights of such holder shall terminate immediately upon
such termination of the holder's employment or service with the Corporation and
all Subsidiaries, and a holder of Options or Rights whose employment or service
with the Corporation and Subsidiaries is so terminated, shall have no right
after such termination to exercise any unexercised Option or Rights he might
have exercised prior to the termination of his employment or service with the
Corporation and Subsidiaries.
Except as hereinafter provided, if a holder of a Restricted Stock Award
shall voluntarily or involuntarily leave the employ of the Corporation or any
Subsidiary, all such Restricted Shares subject to restrictions at the time his
employment terminates (and any dividends, distributions and adjustments retained
by the Corporation with respect thereto) shall be forfeited and any
consideration received therefor from the holder shall be returned to the holder.
Notwithstanding the foregoing, all restrictions to which Restricted Stock Awards
are subject shall lapse (a) upon the death or disability of the holder, (b) upon
the occurrence of such special circumstance or event as in the opinion of the
Committee merits special considerations or (c) upon a Change in Control while
the holder is employed by, or serving as a director of, the Corporation or a
Subsidiary.
16. Adjustment Provision. If prior to the complete exercise of any Option,
or prior to the satisfaction, expiration or lapse of all of the restrictions and
conditions imposed pursuant to a Restricted Stock Award, there shall be declared
and paid a stock dividend upon the Shares or if the Shares shall be split up,
converted, exchanged, reclassified, or in any way substituted for,
(a) in the case of an Option, then the Option, to the extent that it has
not been exercised, shall entitle the holder thereof upon the future exercise of
the Option to such number and kind of securities or cash or other property
subject to the terms of the Option to which he would have been entitled had he
actually owned the Shares subject to the unexercised portion of the Option at
the time of the occurrence of such stock dividend, split-up, conversion,
exchange, reclassification or substitution, and the aggregate purchase price
upon the future exercise of the Option shall be the same as if the originally
optioned Shares were being purchased thereunder; and
(b) in the case of a Restricted Share issued pursuant to a Restricted Stock
Award, the holder of such Award shall receive, subject to the same restrictions
and other conditions of such Award as determined pursuant to the provisions of
Section 12, the same securities or other property as are received by the holders
of the Corporation's Shares pursuant to such stock dividend, split-up,
conversion, exchange, reclassification or substitution.
Any fractional shares or securities issuable upon the exercise of the
Option as a result of such adjustment shall be payable in cash based upon the
Fair Market Value of such shares or securities at the time of such exercise. If
any such event should occur, the number of Shares with respect to which
Incentive Awards remain to be issued, or with respect to which Incentive Awards
may be reissued, shall be adjusted in a similar manner.
In addition to the adjustments provided for in the preceding paragraph,
upon the occurrence of any of the events referred to in said paragraph prior to
the complete exercise of any Rights, the Committee, in its sole discretion,
shall determine the amount of cash and/or number of Shares or other property to
which the holder of the Rights shall be entitled upon their exercise, so that
there shall be no increase or dilution in the cash and/or value of the Shares or
other property to which the holder of Rights shall be entitled by reason of such
events.
Notwithstanding the foregoing, upon the dissolution or liquidation of the
Corporation, or the occurrence of a merger or consolidation in which the
Corporation is not the surviving corporation, or in which the Corporation
becomes a subsidiary of another corporation or in which the voting securities of
the Corporation outstanding immediately prior thereto do not continue to
represent (either by remaining outstanding or by being converted into voting
securities of the surviving entity) more than 50% of the combined voting
securities of the Corporation or such surviving entity immediately after such
merger or consolidation, or upon the sale of all or substantially all of the
assets of the Corporation, this Plan and the Options and Rights granted
hereunder shall terminate unless provision is made by the Corporation in
connection with such transaction for the assumption of Options and Rights
theretofore granted, or the substitution for such Options and Rights of new
options of, and rights with respect to, the successor corporation or a parent or
subsidiary thereof, with appropriate adjustments as to the number and kinds of
shares and the per share exercise prices. In the event the Options terminate as
aforesaid in connection with such a dissolution, liquidation, merger,
consolidation or sale, the Committee may provide that the holder of any such
Option shall be entitled to receive from the Corporation cash in an amount equal
to the excess of (i) the Fair Market Value (determined on the basis of the
amount received by shareholders in connection with such transaction) of the
Shares subject to the portion of the Option not theretofore exercised (whether
or not the Option is then exercisable pursuant to its terms or otherwise), over
(ii) the aggregate purchase price which would be payable for such Shares upon
the exercise of the Option. In the event Conjunctive Rights or Rights granted
independently of an Option terminate as aforesaid in connection with such a
dissolution, liquidation, merger, consolidation or sale, the Committee may
provide that the holder of any such Rights (whether or not such Rights are then
exercisable pursuant to their terms or otherwise) shall be entitled to receive
from the Corporation cash in an amount equal to (i) in the case of Conjunctive
Rights, the amount of cash received by the holder with respect to the related
Option (or a portion of such amount equal to the portion of the Spread to which
the holder is entitled under the terms of such Rights), or (ii) in the case of
Rights granted without relationship to an Option, the excess of (A) the Fair
Market Value (determined on the basis of the amount received by shareholders in
connection with such transaction) of the Shares subject to the portion of the
Rights not theretofore exercised, over (B) the Fair Market Value of such Shares
on the date such Rights were granted (or a portion of such excess equal to the
portion of the Spread to which the holder is entitled under the terms of such
Rights). In the event of any other change in the corporate structure or
outstanding Shares, the Committee may make such equitable adjustments to the
number of Shares and the class of shares available hereunder or to any
outstanding Incentive Awards as it shall deem appropriate to prevent dilution or
enlargement of rights.
17. Issuance of Shares and Compliance with Securities Act. The Corporation
may postpone the issuance and delivery of Shares pursuant to the grant or
exercise of any Incentive Award until (a) the admission of such Shares to
listing on any stock exchange on which Shares of the Corporation of the same
class are then listed, and (b) the completion of such registration or other
qualification of such Shares under any State or Federal law, rule or regulation
as the Corporation shall determine to be necessary or advisable. Any holder of
an Incentive Award shall make such representations and furnish such information
as may, in the opinion of counsel for the Corporation, be appropriate to permit
the Corporation, in the light of the then existence or non-existence with
respect to such Shares of an effective Registration Statement under the
Securities Act of 1933, as from time to time amended (the "Securities Act"), to
issue the Shares in compliance with the provisions of the Securities Act or any
comparable act. The Corporation shall have the right, in its sole discretion, to
legend any Shares which may be issued pursuant to the grant or exercise of any
Incentive Award, or may issue stop transfer orders in respect thereof.
18. Income Tax Withholding. If the Corporation or a Subsidiary shall be
required to withhold any amounts by reason of any Federal, State or local tax
rules or regulations in respect of the issuance of Shares pursuant to the grant
or exercise of any Incentive Award, the Corporation or the Subsidiary shall be
entitled to deduct and withhold such amounts from any cash payments to be made
to the holder of such Incentive Award. In any event, the holder shall make
available to the Corporation or Subsidiary, promptly when requested by the
Corporation or such Subsidiary, sufficient funds to meet the requirements of
such withholding; and the Corporation or Subsidiary shall be entitled to take
and authorize such steps as it may deem advisable in order to have such funds
made available to the Corporation or Subsidiary out of any funds or property due
or to become due to the holder of such Incentive Award.
19. Administration and Amendment of the Plan. Except as hereinafter
provided, the Board of Directors or the Committee may at any time withdraw or
from time to time amend the Plan as it relates to, and the terms and conditions
of, any Incentive Awards not theretofore granted, and the Board of Directors or
the Committee, with the consent of the affected holder of an Incentive Award,
may at any time withdraw or from time to time amend the Plan as it relates to,
and the terms and conditions of, any outstanding Incentive Award.
Notwithstanding the foregoing, any amendment by the Board of Directors or the
Committee which would increase the number of Shares issuable under the Plan or
to any individual or change the class of Eligible Persons shall be subject to
the approval of the shareholders of the Corporation within one year of such
amendment.
Determinations of the Committee as to any question which may arise with
respect to the interpretation of the provisions of the Plan and Incentive Awards
shall be final. The Committee may authorize and establish such rules,
regulations and revisions thereof not inconsistent with the provisions of the
Plan, as it may deem advisable to make the Plan and Incentive Awards effective
or provide for their administration, and may take such other action with regard
to the Plan and Incentive Awards as it shall deem desirable to effectuate their
purpose.
The Plan is intended to comply with Rule 16b-3 under the Exchange Act. Any
provision inconsistent with such Rule shall be inoperative and shall not affect
the validity of the Plan.
20. No Right of Employment. Nothing contained herein or in an Incentive
Award shall be construed to confer on any employee or director any right to be
continued in the employ of the Corporation or any Subsidiary or as a director of
the Corporation or a Subsidiary or derogate from any right of the Corporation
and any Subsidiary to retire, request the resignation of or discharge such
employee or director (without or with pay), at any time, with or without cause.
21. Effective Date of the Plan. This Plan is conditioned upon its approval
by the shareholders of the Corporation on or before August 14, 1996, by the vote
of the holders of a majority of the Shares present in person or by proxy and
entitled to vote at any special or annual meeting of the shareholders of the
Corporation; except that this Plan is adopted and approved by the Board of
Directors effective August 15, 1995, to permit the grant of Incentive Awards
prior to the approval of the Plan by the shareholders of the Corporation as
aforesaid. In the event that this Plan is not approved by the shareholders of
the Corporation as aforesaid, this Plan and any Incentive Awards granted
hereunder shall be void and of no force or effect.
22. Final Issuance Date. No Incentive Award shall be granted under the Plan
after August 14, 2005.
EXHIBIT 5
[Letterhead of The Money Store Inc.]
September 12, 1996
The Money Store Inc.
2840 Morris Avenue
Union, New Jersey 07083
Gentlemen:
I am Corporate Counsel of The Money Store Inc., a New Jersey corporation (the
"Company"), and am rendering this opinion in connection with the Company's
preparation and filing with the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933, as amended (the "Act"), of a
Registration Statement on Form S-8 (the "Registration Statement"), relating to
the issuance of up to 2,812,500 shares (the "Securities") of common stock, no
par value per share (the "Common Stock"), of the Company, upon exercise of
options granted and to be granted under the 1995 Stock Incentive Plan of The
Money Store Inc. (the "Plan"), and such indeterminate number of shares of Common
Stock which may be issued by reason of the anti-dilution provisions of the Plan.
This opinion letter is Exhibit 5.1 to the Registration Statement.
In rendering this opinion, I have examined copies of the Restated Certificate of
Incorporation of the Company and the Amended and Restated By-Laws of the
Company, each as amended to the date hereof, the Registration Statement, the
Plan, and originals or copies of such other corporate minutes, records,
agreements and other instruments of the Company, certificates of public
officials and other documents and have made such examinations of law, as I have
deemed necessary to form the basis of the opinion hereinafter expressed. In my
examination of such materials, I have assumed the genuineness of all signatures,
the authenticity of all documents submitted to us as originals and the
conformity to original documents of all copies submitted to me. As to various
questions of fact material to such opinion, I have relied, to the extent I
deemed appropriate, upon representations, statements and certificates of
officers and representatives of the Company and others.
I express no opinion except as to the laws of the State of New Jersey.
Based on the foregoing, I am of the opinion that the Securities have been duly
authorized and, when issued and delivered in accordance with the terms of the
Plan and the stock option certificates authorized and required thereunder
(including due payment of any exercise price in the amount and in the manner set
forth therein), will be validly issued, fully paid and non-assessable.
I hereby consent to the filing of this opinion as an exhibit to the Registration
Statement and to the filing of this opinion as an exhibit to any application
made by or on behalf of the Company or any dealer in connection with the
registration of the Securities under the securities or blue sky laws of any
state or jurisdiction. In giving such consent, I do not admit hereby that I come
within the category of persons whose consent is required under Section 7 of the
Act or the rules and regulations of the Commission thereunder.
Yours truly,
/s/ Eric R. Elwin
Eric R. Elwin
Corporate Counsel
EXHIBIT 23.2
[Letterhead of KPMG Peat Marwick LLP]
INDEPENDENT AUDITORS' CONSENT
The Board of Directors and Shareholders
The Money Store Inc.:
We consent to incorporation by reference in the Registration Statement on Form
S-8 of The Money Store Inc. of our report dated February 14, 1996, relating to
the consolidated statements of financial condition of The Money Store Inc. and
subsidiaries as of December 31, 1995 and 1994 and the related consolidated
statements of income, shareholders' equity and cash flows for each of the years
in the three-year period ended December 31, 1995, which report appears in the
December 31, 1995 annual report on Form 10-K of The Money Store Inc.
KPMG Peat Marwick LLP
/s/ KPMG Peat Marwick LLP
Sacramento, California
September 12, 1996
