EXHIBIT 1.2
SCHEDULE III
4,600,000 Shares
The Money Store Inc.
(a New Jersey corporation)
$1.72 Mandatory Convertible Preferred Stock
PRICING AGREEMENT
-----------------
October 30, 1996
PRUDENTIAL SECURITIES INCORPORATED
BEAR, XXXXXXX & CO. INC.
XXXXXXXXXX SECURITIES
XXXXXXXXXXX & CO., INC.
As Representatives of the several Underwriters
c/o Prudential Securities Incorporated
One New York Plaza
New York, New York 10292
Dear Sirs:
Reference is made to the Underwriting Agreement, dated October 30,
1996 (the "Underwriting Agreement"), relating to the purchase by the several
Underwriters named in Schedule II thereto (the "Underwriters"), for whom you are
acting as representatives (the "Representatives"), of the above shares of $1.72
Mandatory Convertible Preferred Stock (the "Initial Shares") of The Money Store
Inc. (the "Company").
We confirm that the Closing Date (as defined in Section 3 of the
Underwriting Agreement) shall be at 9:30 AM., New York City time, on November 5,
1996 at the offices of Cleary, Gottlieb, Xxxxx & Xxxxxxxx.
Pursuant to Section 2 of the Underwriting Agreement, the Company
agrees with each Underwriter as follows:
1. The initial public offering price per share for the Initial
Shares, determined as provided in said Section 2, shall be $26.50.
2. The purchase price per share for the Initial Shares to be paid by
the several Underwriters shall be $25.64, being an amount equal to the initial
public offering price set forth above less $0.86 per share.
If the foregoing is in accordance with your understanding of our
agreement, please sign and deliver to Xx. Xxxxxx Dear a counterpart hereof,
whereupon this instrument, along with all counterparts, will become a binding
agreement between the Underwriters and the Company in accordance with its terms.
Very truly yours,
THE MONEY STORE INC.
By: /s/ XXXXXX DEAR
__________________________
Xxxxxx Dear
Executive Vice President
The foregoing Agreement is
hereby confirmed and accepted
as of the date first written
above.
PRUDENTIAL SECURITIES INCORPORATED
BEAR, XXXXXXX & CO. INC.
XXXXXXXXXX SECURITIES
XXXXXXXXXXX & CO., INC.
By: PRUDENTIAL SECURITIES INCORPORATED
By: /s/ XXXX-XXXXXX XXXXXX
____________________________________
Xxxx-Xxxxxx Xxxxxx, Director
For itself and on behalf of the Underwriters
EXHIBIT A
Form of opinion of Xxxx X. Xxxxx, Esq.
pursuant to Section 6(b) of the Underwriting Agreement
1. The Company has been duly incorporated and is validly existing and in good
standing under the laws of the State of New Jersey.
2. The Company has all requisite corporate power and authority to issue the
Shares, to issue the shares of Common Stock issuable upon conversion of the
Shares, to execute, deliver and perform its obligations under the
Underwriting Agreement and the Certificate of Designations for the Shares
and to carry on its business and own or lease its real property as
described in the Registration Statement and the Final Prospectus.
3. Each of the subsidiaries listed on Exhibit ___ hereto (the "Material
Subsidiaries") which is incorporated in the State of New Jersey (the "New
Jersey Material Subsidiaries") has been duly incorporated and is validly
existing and in good standing under the laws of the State of its
incorporation.
4. Each New Jersey Material Subsidiary has all requisite corporate power and
authority to carry on its respective businesses and own or lease its
respective real property as described in the Registration Statement and the
Final Prospectus.
5. The issued shares of capital stock of each New Jersey Material Subsidiary
have been duly authorized and validly issued, are fully paid and
nonassessable, and are owned beneficially directly by the Company free and
clear of any perfected security interests or, to my knowledge, any other
security interests, liens, encumbrances or claims.
6. The Company has authorized capital stock as set forth in the Final
Prospectus under the caption "Capitalization"; all of the issued shares of
capital stock of the Company have been duly authorized and validly issued
and are fully paid and nonassessable and were not issued in violation of or
subject to any preemptive or other rights to subscribe for or purchase
securities.
7. The Shares have been duly authorized by all necessary corporate action of
the Company and, when issued and delivered to and paid for by the
Underwriters pursuant to the Underwriting Agreement, will be validly
issued, fully paid and nonassessable; the certificates for the Shares are
in valid and sufficient form; the shares of Common Stock issuable upon
conversion of the Shares have been duly authorized and reserved for
issuance upon conversion of the Shares and, when issued upon conversion,
will be validly issued, fully paid and nonassessable; no holders of the
outstanding shares of capital stock of the Company are entitled as such to
any preemptive or other rights to subscribe for or purchase any of the
Shares or any shares of Common Stock issuable upon conversion of the
Shares; and no holders of securities of the Company are entitled to have
such securities registered under the Registration Statement.
8. The statements included in the Basic Prospectus under the captions
"Description of Securities--Common Stock" and "Description of Securities--
Preferred Stock", insofar as such statements purport to summarize certain
provisions of the capital stock of the Company, provide a fair summary of
such provisions.
9. The Statements included in the Final Prospectus under the caption
"Description of Preferred Shares", insofar as such statements purport to
summarize certain provisions of the Shares, provide a fair summary of such
provisions.
10. The execution and delivery of the Underwriting Agreement and the
Certificate of Designations for the Shares and the consummation of the
transactions contemplated thereby have been duly authorized by all
necessary corporate action of the Company; the Underwriting Agreement and
the Certificate of Designations for the Shares have been duly executed and
delivered by the Company; and the Certificate of Designations for the
Shares has been duly filed with the Secretary of State of the State of New
Jersey as an amendment to the Company's Certificate of Incorporation.
11. The issuance, offering and sale of the Shares to the Underwriters by the
Company pursuant to the Underwriting Agreement, the issuance of the shares
of Common Stock issuable upon conversion of the Shares, the compliance by
the Company with the other provisions of the Underwriting Agreement and the
consummation of the other transactions therein contemplated do not (i)
require the consent, approval, authorization, registration or qualification
of or with any governmental authority, except as may be required under
federal or state securities or blue sky laws (as to which I express no
opinion), (ii) conflict with or violate (A) the Certificate of
Incorporation, the Bylaws or the charter documents or bylaws of any New
Jersey Material Subsidiary, or (B) any statute, rule or regulation
applicable to the Company or any of the Material Subsidiaries, or (C) any
judgment, decree or order of any court or other governmental authority or
any arbitrator and applicable to the Company or any of the Material
Subsidiaries, or (iii) conflict with or result in a breach or violation of
any of the terms and provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, lease or other agreement or instrument
to which the Company or any of the Material Subsidiaries or any of their
respective properties are bound; except in the case of clauses (ii)(C) or
(iii) for such conflicts, violations, breaches, defaults or liens that,
individually or in the aggregate, will not have a material adverse effect
on the Company and its subsidiaries taken as a whole.
12. To my knowledge, after due inquiry, no Material Subsidiary of the Company
is currently prohibited, directly or indirectly, from paying any dividends
to the Company, from making any other distribution on such Material
Subsidiary's capital stock, from repaying to the Company any loans or
advances to such Material Subsidiary from the Company or from transferring
any of such Material Subsidiary's property or assets to the Company or any
other Material Subsidiary of the Company, except as described in or
contemplated by the Final Prospectus.
13. To my knowledge, after due inquiry, neither the Company nor any of the
Material Subsidiaries is in violation of any federal or state law or
regulation relating to their respective lending activities, including,
without limitation, rules and regulations of the United States Small
Business Administration, rules and regulations of the Guaranteed Student
Loan Program and applicable banking laws, rules and regulations, except for
any such violation of law or regulation which would not, individually or in
the aggregate, have a material adverse effect on the Company and its
subsidiaries, taken as a whole.
14. To my knowledge, after due inquiry, the Company and each of its
subsidiaries possesses all certificates, authorizations and permits issued
by the appropriate federal, state or foreign regulatory authorities
necessary to conduct their respective businesses as described in the Final
Prospectus, and neither the Company nor any of its subsidiaries has
received any notice of proceedings relating to the revocation or
modification of any such certificate, authorization or permit which, singly
or in the aggregate, if the subject of an unfavorable decision, ruling or
finding, would have a material adverse effect on the Company and its
subsidiaries, taken as a whole.
15. To my knowledge, after due inquiry, no default exists, and no event has
occurred which, with notice or lapse of time or both, would constitute a
default in the due performance and observance of any term, covenant or
condition of any indenture, mortgage, deed of trust, lease or other
agreement or instrument to which the Company or any of the Material
Subsidiaries is a party or by which the Company or any of the Material
Subsidiaries or any of their respective properties is bound or may be
affected, except for defaults which would not, individually or in the
aggregate, have a material adverse effect on the Company and its
subsidiaries, taken as a whole.
16. There is no pending or, to my knowledge, threatened action, suit or
proceeding before any court or governmental agency, authority or body or
any arbitrator involving the Company or any of its subsidiaries or any of
their respective properties of a character required to be described in the
Registration Statement or the Final Prospectus; and, to my knowledge, there
is no contract or other document of a character required to be described in
the Registration Statement or the Final Prospectus, or to be filed as an
exhibit to the Registration Statement, which is not described or filed as
required.
17. The statements set forth under the subheadings "Home Equity Loans," "SBA
Loans," "Student Loans," "Loan Funding and Borrowing Arrangements,"
"Regulation" and "Environmental Policies" under the heading "Item 1.
Business" and under the heading "Item 3. Legal Proceedings" in the
Company's Annual Report on Form 10-K for the year ended December 31, 1995,
insofar as such statements constitute a summary of the legal matters,
documents or proceedings referred to therein, provide a fair summary of
such legal matters, documents and proceedings.
18. Each of the Material Subsidiaries is duly qualified and in good standing as
a foreign corporation in each state listed on Exhibit ___ hereto (except as
otherwise indicated on Exhibit ___ hereto) and (ii) to my knowledge, after
due inquiry, in each other jurisdiction
where each such entity owns or leases real property or where the conduct of
its business requires such qualification, except where the failure to be so
qualified or in good standing will not have a material adverse effect on
the Company and its subsidiaries, taken as a whole.
19. Insofar as any of the foregoing opinions relate to the validity or issuance
of the Shares under the law of the State of New Jersey, I have, with the
Underwriters' consent, relied as to all such matters on the opinion of
Xxxxx Xxxxxx Xxxxxxxxx Xxxxx Xxxxxxxx Xxxxxxx & Xxxxx, special New Jersey
counsel to the Company.
EXHIBIT B
Form of opinion of Stroock & Xxxxxxx & Xxxxx
pursuant to Section 6(c) of the Underwriting Agreement
1. Each of the subsidiaries of the Company listed on Exhibit ___ hereto (the
"Material Subsidiaries") that is incorporated under the laws of the State of
Delaware (the "Delaware Material Subsidiaries") has been duly incorporated and
is validly existing and in good standing under the laws of the State of
Delaware.
2. Each Delaware Material Subsidiary has all requisite corporate power to
carry on its business and own or lease its real property as described in the
Registration Statement and the Final Prospectus.
3. The issued shares of capital stock of each Delaware Material Subsidiary
have been duly authorized and validly issued, are fully paid and nonassessable
and are, to our knowledge, owned, directly or indirectly, beneficially by the
Company free and clear of any perfected security interests or any other security
interests, liens, encumbrances or claims.
4. All of the issued shares of capital stock of the Company (i) have been
issued in compliance with all applicable federal securities laws and (ii) to our
knowledge, were not issued in violation of or subject to any preemptive or other
rights to subscribe for or purchase securities (other than statutory preemptive
rights as to which we express no opinion); the Shares and the Common Stock
issuable upon conversion of the Shares have been duly included for trading on
the Nasdaq National Market; and, to our knowledge, no holders of outstanding
shares of capital stock of the Company are entitled to any preemptive or other
rights to subscribe for or purchase any of the Shares or any shares of Common
Stock issuable upon conversion of the Shares (other than statutory preemptive
rights as to which we express no opinion).
5. To our knowledge, (i) no legal or governmental proceedings are pending to
which the Company or any of the Material Subsidiaries is a party or to which the
property of the Company or any of the Material Subsidiaries is subject that are
required to be described in the Registration Statement or the Final Prospectus
("Proceedings") and are not described therein, (ii) no Proceedings have been
threatened against the Company or any of the Material Subsidiaries or with
respect to any of their respective properties and (iii) no contract or other
document is required to be described in the Registration Statement or the Final
Prospectus or to be filed as an exhibit to the Registration Statement that is
not described therein or filed as required.
6. The issuance, offering and sale of the Shares to the Underwriters
pursuant to the Underwriting Agreement, the compliance by the Company with the
other provisions of the Underwriting Agreement and the consummation of the other
transactions therein contemplated do not (i) require the consent, approval,
authorization, registration or qualification of or with
any governmental authority, except such as have been obtained and such as may be
required under state securities or blue sky laws (as to which we express no
opinion), (ii) conflict with or violate (A) the certificate of incorporation or
bylaws of any of the Delaware Material Subsidiaries, or (B) any statute, rule or
regulation applicable to the Company or any of the Material Subsidiaries, or
(iii) conflict with or result in a breach or violation of any of the terms and
provisions of, or constitute a default under, any agreement or document listed
on Exhibit ___ attached hereto (the "Material Agreements").
7. The Registration Statement is effective under the Act; any required
filing of the Final Prospectus pursuant to Rule 424(b) has been made in the
manner and within the time period required by Rule 424(b); and, to our
knowledge, no stop order suspending the effectiveness of the Registration
Statement and no order directed at any document incorporated by reference in the
Registration Statement or the Final Prospectus has been issued, and no
proceedings for that purpose have been instituted or threatened or are
contemplated by the Commission.
8. The Registration Statement and the Final Prospectus (in each case,
including the documents incorporated by reference therein but not including the
financial statements and related notes, financial statement schedules and other
financial and statistical information and exhibits included or incorporated by
reference therein or omitted therefrom, as to which we express no opinion)
comply as to form in all material respects with the applicable requirements of
the Act and the Exchange Act and the rules and regulations of the Commission
thereunder.
9. The Underwriting Agreement has been duly authorized, executed and
delivered by the Company.
10. To our knowledge, no default exists, and no event has occurred which,
with notice or lapse of time or both, would constitute a default in the due
performance and observance of any term, covenant or condition of any indenture,
mortgage, deed of trust, lease or other agreement or instrument listed on
Exhibit ___ hereto, except where such default or event will not have a material
adverse effect on the Company and its subsidiaries taken as a whole.
We have participated in conferences with officers and other representatives
of the Company, representatives of the independent certified public accountants
of the Company and your representatives at which the contents of the
Registration Statement, the Final Prospectus and related matters were discussed,
and, although we have not undertaken to investigate or verify independently, and
assume no responsibility for, the accuracy, completeness or fairness of the
statements contained in the Registration Statement or the Final Prospectus, on
the basis of the foregoing (relying as to materiality to a large extent upon the
opinions of officers and other representatives of the Company) no facts have
come to our attention which lead us to believe (i) that the Registration
Statement (other than the financial statements and related notes, financial
statement schedules and other financial and statistical information and exhibits
included or incorporated by reference therein or omitted therefrom, as to which
we express no belief) at the time it became effective contained an untrue
statement of a material fact or omitted to state any material fact required to
be stated therein or necessary to make the
statements therein not misleading or (ii) that the Final Prospectus (other than
the financial statements and related notes, financial statement schedules and
other financial and statistical information and exhibits included or
incorporated by reference therein or omitted therefrom, as to which we express
no belief), as of the date thereof and the date of this opinion, contained or
contains an untrue statement of a material fact or omitted or omits to state any
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading.
EXHIBIT C
Form of opinion of Xxxxx Xxxxxx Xxxxxxxxx Xxxxx
Xxxxxxxx Xxxxxxx & Xxxxx, pursuant to Section 6(d)
of the Underwriting Agreement
1. The Shares have been duly authorized by all necessary corporate action of
the Company and, when issued and delivered to and paid for by the
Underwriters pursuant to the Underwriting Agreement, will be validly issued,
fully paid and nonassessable.
2. The Certificate of Designations for the Shares has been duly authorized and
executed by the Company and has been duly filed in accordance with the laws
of the State of New Jersey with the Secretary of State of the State of New
Jersey as an amendment to the Company's Certificate of Incorporation.
3. The certificates for the Shares are in valid and sufficient form.
4. The shares of Common Stock issuable upon conversion of the Shares have been
duly authorized and reserved for issuance by the Company, and when the
Shares are converted in accordance with the terms of the Certificate of
Designations for the Shares, the shares of Common Stock issued therefor will
be validly issued, fully paid and nonassessable.
5. The issuance and sale by the Company of the Shares and the Common Stock
issuable upon conversion thereof pursuant to the Underwriting Agreement and
the Certificate of Designations for the Shares will not violate or conflict
with any New Jersey statute, rule or regulation or the Certificate of
Incorporation or by-laws of the Company.
