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)
1997 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)
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Copy to:
Richard S. Forman, Esq.
Stroock & Stroock & Lavan LLP
2029 Century Park East
Los Angeles, California 90067
(310) 556-5800
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
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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
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<S> <C> <C> <C> <C>
Common Stock, 2,800,000 $24.875(3) $69,650,000 $20,546.75
no par value shares (2)
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(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 November 26, 1997.
</TABLE>
<PAGE>
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 1997
Stock Incentive Plan (the "1997 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 1997 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.
<PAGE>
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, 1996;
(b) The Registrant's Quarterly Reports on Form 10-Q for the
quarters ended March 31, June 30 and September 30, 1997;
(c) The Registrant's Current Reports on Form 8-K dated April
9 and April 15, 1997; 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
$15,000,000, with excess coverage of $25,000,000.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
(Not Applicable.)
ITEM 8. EXHIBITS
EXHIBIT NO. DESCRIPTION
4.1 Restated Certificate of Incorporation of the
Registrant. Incorporated by reference to Exhibit
3.1 to the Registrant's Annual Report on Form 10-K
for the year ended December 31, 1996 (the "1996
10-K").
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 Certificate of Amendment to the Restated Certificate
of Incorporation of the Registrant, dated October
12, 1995. Incorporated by reference to Exhibit 3.3
to the Registrant's 1996 10-K.
4.4 Certificate of Amendment to the Restated Certificate
of Incorporation of the Registrant, dated May 15,
1996. Incorporated by reference to Exhibit 3.4 to
the Registrant's 1996 10-K.
4.5 Certificate of Amendment to the Restated Certificate
of Incorporation of the Registrant, dated October
30, 1996. Incorporated by reference to Exhibit 3.5
to the Registrant's 1996 10-K.
4.6 1997 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 LLP.*
24 Power of Attorney (included at page 6).*
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* 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 1st day of
December 1997.
THE MONEY STORE INC.
By:/s/ MORTON DEAR
Morton Dear,
SENIOR EXECUTIVE VICE PRESIDENT
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that each of the undersigned hereby
constitutes and appoints Morton Dear, Eric R. Elwin, Michael H. Benoff 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 1997 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 December 1, 1997:
SIGNATURE TITLE
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 Senior Executive Vice President,
Morton Dear Secretary and Director
/s/ MICHAEL H. BENOFF Executive Vice President and Chief
Michael H. Benoff Financial Officer (Principal
Financial Officer)
/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/ WILLIAM S. TEMPLETON Executive Vice President and Director
William s. Templeton
/s/ JAMES K. RANSOM Vice President (Principal
James K. Ransom Accounting Officer)
<PAGE>
EXHIBIT INDEX
EXHIBIT SEQUENTIAL
NUMBER DESCRIPTION PAGE
4.1 Restated Certificate of Incorporation
of the Registrant. Incorporated by
reference to Exhibit 3.1 to the
Registrant's 1996 10-K.
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 Certificate of Amendment to the Restated
Certificate of Incorporation of the
Registrant, dated October 12, 1995.
Incorporated by reference to Exhibit 3.3
to the Registrant's 1996 10-K.
4.4 Certificate of Amendment to the Restated
Certificate of Incorporation of the
Registrant, dated May 15, 1996.
Incorporated by reference to Exhibit 3.4
to the Registrant's 1996 10-K.
4.5 Certificate of Amendment to the Restated
Certificate of Incorporation of the
Registrant, dated October 30, 1996.
Incorporated by reference to Exhibit 3.5
to the Registrant's 1996 10-K.
4.6 1997 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 LLP.*
24 Power of Attorney. Included at page 6.
*Filed herewith by electronic submission.
EXHIBIT 4.6
1997 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 key
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 key 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 key
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, if any, established by the Board
of Directors pursuant to Section 3 to administer the Plan.
(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 Board of Directors 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) "Incentive Stock Option" shall have the meaning set forth in section
422 of the Internal Revenue Code.
(k) "Internal Revenue Code" shall mean the Internal Revenue Code of 1986,
as amended.
(l) "Options" shall mean the stock options granted pursuant to this Plan.
(m) "Plan" shall mean this 1997 Stock Incentive Plan of The Money Store
Inc., as adopted by the Board of Directors on April 14, 1997, as such Plan from
time to time may be amended.
(n) "President" shall mean the person who at the time shall be the
President of the Corporation.
(o) "Restricted Shares" shall mean the Shares issued as a result of a
Restricted Stock Award.
(p) "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 Board of Directors 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.
(q) "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.
(r) "Share" shall mean a share of common stock of the Corporation.
(s) "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.
(t) "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. ADMINISTRATION. The Plan shall be administered by the Board of
Directors, or if the Board of Directors shall so determine, 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 "Non-Employee Director" within the meaning
of Rule 16b-3 under the Securities Exchange Act of 1934, as from time to time
amended (the "Exchange Act"). During any period in which the Plan is
administered by a Committee, all references herein to the Board of Directors
shall be deemed to refer to the Committee, except for purposes of the definition
of a "Change in Control" (as set forth in Section 11) and of Section 19. The
Board of Directors shall establish such rules and procedures as are necessary or
advisable to administer the Plan.
Determinations of the Board of Directors 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 Board of Directors 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.
4. PARTICIPANTS. Except as hereinafter provided, the class of persons who
are potential recipients of Incentive Awards granted under this Plan shall
consist of (i) the directors of the Corporation or a Subsidiary and (ii) key
employees of the Corporation or a Subsidiary, as determined by the Board of
Directors. 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 Board of Directors in its sole discretion, subject, however, to the terms
and conditions of this Plan. Persons to whom Incentive Awards may be granted
include key employees who are also directors of the Corporation or a Subsidiary
and also directors who are not also key 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 Board of
Directors may grant Incentive Awards with respect to an aggregate of up to
2,800,000 Shares, all of which shares may be either Shares held in treasury or
authorized but unissued Shares. 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 Internal Revenue Code shall not exceed 1,400,000 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 an Alternative Right shall not
again be available for the grant of any further Incentive Awards.
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 Internal Revenue 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 Board of Directors in its sole discretion. At
the time an Option is granted, the Board of Directors may, in its sole
discretion, designate whether such Option (a) is to be considered as an
Incentive Stock Option, 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 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 Board of Directors 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 Board of
Directors. 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 Board of Directors shall have the authority to
grant to any Eligible Person, in its sole discretion, Rights which may be
granted separately, or in connection with an Option at the time of the grant of
an Option. Rights granted in connection with an Option shall be granted with
respect to the same number of Shares as are covered by the Option, subject to
adjustment pursuant to the provisions of Section 16 hereof, and may be
exercised, as determined by the Board of Directors 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 Board of Directors 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 for purposes of the limitations under
Section 5. 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 Board
of Directors 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 Board of Directors, 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 Board of Directors 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 Board of Directors 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. No fractional Shares shall be issued by the Corporation, and
settlement therefor shall be made in cash.
The form of Rights shall be as determined from time to time by the Board of
Directors. 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 Eligible
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 Board of Directors
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 Board of Directors 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 Board of Directors may permit.
9. DURATION OF OPTIONS AND RELATED RIGHTS. The duration of any Option
granted under this Plan shall be fixed by the Board of Directors 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 10 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 Board of Directors; provided,
however, that no Options or Rights may be exercised in part or in full prior to
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: (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 Board of Directors in its sole discretion)
or the death of the holder, (c) upon the occurrence of such special circumstance
or event as in the opinion of the Board of Directors 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) 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 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
Corporation 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 Board of Directors 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 Board of Directors 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 Board of Directors, 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 Board of Directors 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 Board of Directors 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 Board of Directors in
its sole discretion (which determination by the Board of Directors 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 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
Board of Directors 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 Board of Directors, 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 a spin-off (including a reverse spin-off) by
the Corporation, but only as to the holders of Incentive Awards who are to be
employed immediately after the spin-off by the entity which represents less than
fifty percent (50%) of the value of the Corporation immediately prior to the
transaction and any holders who will serve as directors of such entity and not
of the Corporation, or upon the sale of all or substantially all of the assets
of the Corporation, the Board of Directors may, in its sole discretion,
terminate the Options and Rights granted hereunder, 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, spin-off or sale, the Board of Directors shall provide
that the holder of any such Option shall be entitled to receive from the
Corporation 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, spin-off or sale, the Board of Directors shall 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 an amount equal to (i) in the case of Conjunctive Rights, the amount
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 Board of
Directors 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. 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.
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 April 13, 1998 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 April 14,
1997 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 April 13, 2007.
EXHIBIT 5
[Letterhead of The Money Store Inc.]
December 1, 1997
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 2,800,000 shares (the "Securities") of common stock, no
par value per share (the "Common Stock"), of the Company, pursuant to the 1997
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 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 me 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 incentive awards 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. 1997 Stock Incentive Plan of our report dated
February 12, 1997, relating to the consolidated statements of financial
condition of The Money Store Inc. and subsidiaries as of December 31, 1996 and
1995 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,
1996, which report appears in the December 31, 1996 annual report on Form 10-K
of The Money Store Inc.
/s/ KPMG PEAT MARWICK LLP
KPMG Peat Marwick LLP
Sacramento, California
November 28, 1997
