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0000931763-98-001978.txt : 19980803
0000931763-98-001978.hdr.sgml : 19980803
ACCESSION NUMBER: 0000931763-98-001978
CONFORMED SUBMISSION TYPE: S-1
PUBLIC DOCUMENT COUNT: 14
FILED AS OF DATE: 19980731
SROS: NONE
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: CHECK INTO CASH INC
CENTRAL INDEX KEY: 0001067289
STANDARD INDUSTRIAL CLASSIFICATION: []
IRS NUMBER: 621666096
STATE OF INCORPORATION: DE
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: S-1
SEC ACT:
SEC FILE NUMBER: 333-60377
FILM NUMBER: 98675565
BUSINESS ADDRESS:
STREET 1: 224 NORTH OCOEE STREET
STREET 2: P O BOX 550
CITY: CLEVELAND
STATE: OH
ZIP: 37364-0550
BUSINESS PHONE: 4234792400
MAIL ADDRESS:
STREET 1: 224 NORTH OCOEE STREET
STREET 2: P O BOX 550
CITY: CLEVELAND
STATE: OH
ZIP: 37364-0550
S-1
1
FORM S-1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 31, 1998
REGISTRATION NO. 333-
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------
CHECK INTO CASH, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
----------------
DELAWARE 62-1666096
(STATE OR OTHER (PRIMARY STANDARD (I.R.S. EMPLOYER
JURISDICTION OF INDUSTRIAL IDENTIFICATION NO.)
INCORPORATION OR CLASSIFICATION CODE
ORGANIZATION) NUMBER)
224 NORTH OCOEE STREET
P.O. BOX 550
CLEVELAND, TENNESSEE 37364-0550
(423) 479-2400
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
THE REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
----------------
J. SAMUEL CHOATE, JR.
EXECUTIVE VICE PRESIDENT AND GENERAL COUNSEL
CHECK INTO CASH, INC.
224 NORTH OCOEE STREET
P.O. BOX 550
CLEVELAND, TENNESSEE 37364-0550
TELEPHONE: (423) 479-2400
FACSIMILE: (423) 559-1099
(NAME, ADDRESS, INCLUDING ZIP CODE AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
COPIES TO:
DAVID E. BROWN, JR. STEVEN R. FINLEY
MICHAEL R. MCALEVEY GIBSON, DUNN & CRUTCHER LLP
ALSTON & BIRD LLP 200 PARK AVENUE
ONE ATLANTIC CENTER NEW YORK, NEW YORK 10166
1201 WEST PEACHTREE STREET TELEPHONE: (212) 351-4000
ATLANTA, GEORGIA 30309-3424 FACSIMILE: (212) 351-4035
TELEPHONE: (404) 881-7000
FACSIMILE: (404) 881-4777
----------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO PUBLIC: As soon as
practicable after the effectiveness of this registration statement.
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following box. [_]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [_]
If this form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration number of the earlier effective registration statement for the
same offering. [_]
If this form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration number of the earlier effective registration statement for the
same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [_]
CALCULATION OF REGISTRATION FEE
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
PROPOSED
MAXIMUM
AGGREGATE AMOUNT OF
TITLE OF EACH CLASS OF OFFERING REGISTRATION
SECURITIES TO BE REGISTERED PRICE(1) FEE
- -------------------------------------------------------------------------------
Common Stock, $.01 par value per share........... $50,000,000 $14,750
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
(1) Estimated solely for purposes of determining the registration fee pursuant
to Rule 457(o).
----------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS
REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH
SECTION 8(A) OF THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT
SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID
SECTION 8(A), MAY DETERMINE.
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
+INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A +
+REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE +
+SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY +
+OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT +
+BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR +
+THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE +
+SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE +
+UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF +
+ANY SUCH STATE. +
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
SUBJECT TO COMPLETION, DATED JULY 31, 1998
PROSPECTUS
SHARES
[LOGO] CHECK INTO CASH, INC.
COMMON STOCK
-----------
Of the shares of common stock, par value $0.01 (the "Common Stock") offered
hereby (the "Offering"), shares are being sold by Check Into Cash, Inc.
("Check Into Cash" or the "Company") and shares are being sold by Sirrom
Capital Corporation ("Sirrom" or the "Selling Stockholder"). See "Principal and
Selling Stockholders." The Company will receive no proceeds from the sale of
shares by the Selling Stockholder. See "Use of Proceeds."
Prior to the Offering, there has been no public trading market for the Common
Stock, and there can be no assurance that any active trading market will
develop. It currently is anticipated that the initial public offering price
will be between $ and $ per share. See "Underwriting" for information
relating to the determination of the initial public offering price.
The Company has applied for the Common Stock to be approved for quotation on
the Nasdaq National Market ("Nasdaq") under the symbol "CHEK."
THE COMMON STOCK OFFERED HEREBY INVOLVES A HIGH DEGREE OF RISK. SEE "RISK
FACTORS" BEGINNING ON PAGE 7 HEREOF FOR A DISCUSSION OF CERTAIN FACTORS THAT
SHOULD BE CONSIDERED BY PROSPECTIVE PURCHASERS OF SHARES OF COMMON STOCK.
-----------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY
IS A CRIMINAL OFFENSE.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
PROCEEDS TO
PRICE TO UNDERWRITING PROCEEDS TO SELLING
PUBLIC DISCOUNT(1) COMPANY(2) STOCKHOLDER
- --------------------------------------------------------------------------------
Per Share......................
- --------------------------------------------------------------------------------
Total(3).......................
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(1) See "Underwriting" for information concerning indemnification of the
Underwriters and other information.
(2) Before deducting expenses of the Offering payable by the Company estimated
at $ .
(3) The Company has granted the Underwriters an option, exercisable within 30
days from the date hereof, to purchase up to additional shares of
Common Stock at the Price to Public per share, less the Underwriting
Discount, solely for the purpose of covering over-allotments, if any. If
the Underwriters exercise such option in full, the total Price to Public,
Underwriting Discount and Proceeds to Company and Proceeds to Selling
Stockholder will be $ , $ , $ and $ , respectively. See
"Underwriting."
-----------
The shares of Common Stock are offered by the Underwriters when, as and if
delivered to and accepted by them, subject to their right to withdraw, cancel
or reject orders in whole or in part and subject to certain other conditions.
It is expected that delivery of certificates representing the shares of Common
Stock will be made against payment on or about , 1998 at the office of CIBC
Oppenheimer Corp., CIBC Oppenheimer Tower, World Financial Center, New York,
New York 10281.
-----------
CIBC OPPENHEIMER J.C. BRADFORD & CO.
, 1998
[U.S. MAP SHOWING THE COMPANY'S COVERAGE AREA]
CERTAIN PERSONS PARTICIPATING IN THIS OFFERING MAY ENGAGE IN TRANSACTIONS
THAT STABILIZE, MAINTAIN, OR OTHERWISE AFFECT THE PRICE OF THE COMMON STOCK.
SPECIFICALLY, THE UNDERWRITERS MAY OVER-ALLOT IN CONNECTION WITH THE OFFERING,
AND MAY BID FOR, AND PURCHASE, SHARES OF THE COMMON STOCK IN THE OPEN MARKET.
FOR A DESCRIPTION OF THESE ACTIVITIES, SEE "UNDERWRITING."
2
PROSPECTUS SUMMARY
The following summary is qualified in its entirety by the more detailed
information and financial statements, including the notes thereto, appearing
elsewhere in this Prospectus. Unless the context indicates otherwise, all
references to the "Company" or "Check Into Cash" include Check Into Cash, Inc.
and its subsidiaries. All information contained herein reflects the 1,000-for-1
stock split effected on May 12, 1997 and a 7.49-for-1 stock split that will be
effected contemporaneously with the Offering and, except as otherwise noted,
assumes no exercise of the Underwriters' over-allotment option.
THE COMPANY
Check Into Cash, Inc. (the "Company") is a specialty financial services
company that advances cash to its customers by cashing their personal checks
and agreeing to hold the checks until they are redeemed by the customers or
until a short holding period, typically less than 17 days, has expired. The
Company targets customers who are currently employed and have an active
checking account. To initiate a relationship with the Company, each customer is
required to provide proof of income, proof of an active personal checking
account, proof of residence and proper identification. The Company limits the
amount of cash that it advances to customers to $300 per transaction and
prohibits customers from having more than one outstanding transaction with the
Company. The Company generally does not cash checks with a face amount
exceeding 50.0% of the net "take-home" amount of the customer's next paycheck.
In exchange for its service, the Company receives a fee ranging from
approximately 11.5% to 18.0% of the face amount of the check.
The Company believes that its customers have access to alternative sources of
cash to satisfy their short-term financial needs but prefer the Company's
simple, convenient, confidential service that enables customers to quickly
obtain small amounts of short term cash, with payment due generally as of the
date of the customers' next paycheck. In addition, management believes that the
Company's customers prefer (i) to have the ability to redeem their checks
rather than having them deposited and (ii) to pay the one-time flat fee charged
by the Company as opposed to the ongoing finance charges associated with other
alternatives. Moreover, because the Company does not require its customers to
provide collateral or to satisfy traditional credit criteria, the Company
believes that it eliminates the consumers' fear of credit denial. Management
further believes that a primary reason for the growth in its business is the
high cost of insufficient funds charges ("NSF") assessed by both banks and
merchants and the high finance costs charged by financial service providers for
small amounts of short-term cash.
The Company's growth strategy is to open stores rapidly in middle income
neighborhoods in high traffic shopping centers with a significant anchor tenant
such as a supermarket or major discount retail store. The Company is also
testing store locations in certain supermarkets, convenience stores and retail
stores. Management targets particular geographic areas for development and
seeks to develop all of the major, and many of the secondary, markets in that
area in a "clustered" fashion that maximizes the effectiveness and efficiency
of store opening processes, recruiting and training functions, and advertising
and promotional efforts. The Company uses intensive employee training in
customer service and targeted local advertising in order to build brand loyalty
and customer awareness and to increase transaction volume.
The Company commenced operations in June 1993 with one store and has expanded
rapidly to a total of 266 stores at June 30, 1998. Revenues have increased
substantially from $78,000 in 1993 to $21.4 million in 1997 and $21.2 million
for the six months ended June 30, 1998. The Company's average store revenues
from stores open for at least 12 months at the beginning of each of the
following periods was $213,000 (two stores) in 1995, $255,000 (nine stores) in
1996, $233,000 (52 stores) in 1997 and $132,000 (63 stores) for the six months
ended June 30, 1998. During the six months ended June 30, 1998, the Company
completed 652,000 transactions attributable to 120,000 customers. As of June
30, 1998, the Company had approximately 67,000 held checks with an aggregate
outstanding balance of $15.4 million. The Company incurred bad debt expense of
$1,826 for 1993 (2.3% of revenues), $50,976 for 1994 (5.2% of revenues),
$113,931 for 1995 (3.1% of revenues), $438,551
3
for 1996 (4.3% of revenues), $1.2 million for 1997 (5.6% of revenues) and $1.1
million (5.3% of revenues) for the six months ended June 30, 1998. Charge-offs,
net, for such periods were $2,000 for 1993, $ 39,000 for 1994, $72,000 for
1995, $357,000 for 1996, $1.1 million for 1997 and $1.1 million for the six
months ended June 30, 1998.
The Company was incorporated in Delaware on December 23, 1996. The mailing
address of its principal executive office is 224 North Ocoee Street, P.O. Box
550, Cleveland, Tennessee 37364-0550, and its telephone number is (423) 479-
2400.
THE OFFERING
Common Stock offered by the Company.. shares
Common Stock offered by the Selling shares(1)
Stockholder.........................
Common Stock to be outstanding after shares(2)
the Offering........................
Use of proceeds by the Company....... Repay certain indebtedness, pay S
corporation dividends and for working
capital and general corporate purposes,
including the opening of new stores. See
"Use of Proceeds."
Proposed Nasdaq National Market sym- CHEK
bol.................................
- --------
(1) See "Principal and Selling Stockholders."
(2) Excludes shares that will be subject to outstanding warrants following
completion of the Offering and 561,750 shares of Common Stock reserved for
issuance under the Company's Amended and Restated 1997 Long-Term Incentive
Plan, of which options to purchase 364,344 shares of Common Stock had been
granted at June 30, 1998 at a weighted average exercise price of $6.95 per
share. See "Management--Incentive Plan," "Shares Eligible for Future Sale"
and Note 7 to the Company's Consolidated Financial Statements.
4
SUMMARY CONSOLIDATED FINANCIAL AND OPERATING DATA
SIX MONTHS ENDED
YEAR ENDED DECEMBER 31, JUNE 30,
---------------------------------------------------------- -----------------------
1993 1994 1995 1996 1997 1997 1998
--------- --------- ---------- ----------- ----------- ---------- -----------
STATEMENT OF OPERATIONS
DATA:
Revenues................ $ 77,743 $ 980,048 $3,715,056 $10,252,085 $21,446,588 $8,007,852 $21,241,222
--------- --------- ---------- ----------- ----------- ---------- -----------
Store expenses:
Salaries and bene-
fits.................. 15,851 202,585 783,615 2,374,450 5,031,970 2,068,250 4,715,050
Occupancy.............. 7,363 70,416 401,322 1,017,438 2,470,382 980,536 2,505,996
Bad debt expense....... 1,826 50,976 113,931 438,551 1,196,469 213,839 1,135,456
Other store expenses... 21,513 161,582 838,674 1,468,739 4,398,982 1,834,609 3,869,307
--------- --------- ---------- ----------- ----------- ---------- -----------
Total store ex-
penses.............. 46,553 485,559 2,137,542 5,299,178 13,097,803 5,097,234 12,225,809
--------- --------- ---------- ----------- ----------- ---------- -----------
General and administra-
tive expenses:
Legal and professional
expenses.............. -- 15,466 49,222 266,073 3,192,732 (1) 454,633 561,102
Other general and
administrative
expenses.............. -- 201,269 612,075 2,306,986 5,406,352 1,948,178 4,630,223
--------- --------- ---------- ----------- ----------- ---------- -----------
Total general and
administrative
expenses............. -- 216,735 661,297 2,573,059 8,599,084 2,402,811 5,191,325
--------- --------- ---------- ----------- ----------- ---------- -----------
Interest expense, net... -- 15,590 36,649 124,217 621,452 194,568 620,443
--------- --------- ---------- ----------- ----------- ---------- -----------
Income (loss) before in-
come taxes............. 31,190 262,164 879,568 2,255,631 (871,751) 313,239 3,203,645
Provision for (benefit
from) income taxes..... 1,958 46,080 346,540 515,109 (594,236) 200,636 1,082,515(2)
--------- --------- ---------- ----------- ----------- ---------- -----------
Net income (loss)....... $ 29,232 $ 216,084 $ 533,028 $ 1,740,522 $ (277,515) $ 112,603 $ 2,121,130
========= ========= ========== =========== =========== ========== ===========
Historical net income
(loss) per share:
Basic.................. $ -- $ 0.02 $ 0.06 $ 0.19 $ (0.03) $ 0.01 $ 0.23
========= ========= ========== =========== =========== ========== ===========
Diluted................ $ -- $ 0.02 $ 0.06 $ 0.19 $ (0.03) $ 0.01 $ 0.22
========= ========= ========== =========== =========== ========== ===========
Weighted average common
shares outstanding--
basic.................. 8,988,000 8,988,000 8,988,000 8,988,000 9,123,929 8,988,000 9,257,640
========= ========= ========== =========== =========== ========== ===========
Weighted average common
shares outstanding--
diluted................ 8,988,000 8,988,000 8,988,000 9,060,084 9,123,929 9,475,247 9,778,397
========= ========= ========== =========== =========== ========== ===========
PRO FORMA DATA(3):
Historical income (loss)
before income taxes.... $ (871,751) $ 3,203,645
Pro forma provision for
(benefit from) income
taxes.................. (331,265) 1,217,385
----------- -----------
Pro forma net income
(loss)................. $ (540,486) $ 1,986,260
=========== ===========
Pro forma earnings per
share:
Basic.................. $ $
=========== ===========
Diluted................ $ $
=========== ===========
Weighted average common
shares outstanding--
basic..................
=========== ===========
Weighted average common
shares outstanding--
diluted................
=========== ===========
OPERATING DATA:
Stores open at beginning
of period.............. -- 2 9 52 69 69 176
Stores opened during pe-
riod................... 2 7 43 20 107 53 91
Stores closed during pe-
riod................... -- -- -- (3) -- -- (1)
--------- --------- ---------- ----------- ----------- ---------- -----------
Stores open at end of
period................. 2 9 52 69 176 122 266
========= ========= ========== =========== =========== ========== ===========
Held checks at end of
period, net............ $ 49,610 $ 455,719 $1,922,738 $ 3,466,898 $ 9,847,430 $5,000,455 $15,119,598
========= ========= ========== =========== =========== ========== ===========
Number of held checks at
end of period.......... 374 1,683 9,728 19,012 45,871 26,255 67,195
========= ========= ========== =========== =========== ========== ===========
Bad debt expense as a
percentage of
revenues............... 2.3% 5.2% 3.1% 4.3% 5.6% 2.7% 5.3%
========= ========= ========== =========== =========== ========== ===========
5
DECEMBER 31, JUNE 30, 1998
-------------------------------------------------- -----------------------
1993 1994 1995 1996 1997 ACTUAL ADJUSTED(4)
------- -------- --------- ----------- ----------- ----------- -----------
BALANCE SHEET DATA:
Working capital......... $25,911 $194,047 $ 459,387 $ 3,212,497 $ 9,124,337 $14,834,241
Property and equipment,
net.................... 2,861 58,872 287,036 645,859 2,184,527 3,032,223
Total assets............ 70,585 595,062 2,590,388 6,114,331 15,925,011 23,169,506
Long-term debt, less
current maturities..... -- -- -- 562,939 8,650,069 13,591,392
Total stockholders'
equity................. 29,232 255,601 788,629 3,112,284 2,433,121 3,893,460
- --------
(1) Includes nonrecurring charges of $2.2 million for the settlement of a class
action lawsuit filed against the Company in Tennessee and related legal
expenses of approximately $500,000. See "Business--Legal Proceedings."
(2) On January 1, 1998, in connection with the S corporation election of
Creditcorp of Tennessee, Inc., a wholly-owned subsidiary of the Company,
the Company eliminated approximately $709,000 of previously recognized net
deferred federal tax benefits.
(3) Gives effect to the following in connection with the Company's termination
of its S corporation status as if such termination occurred on January 1,
1997: (i) the estimated number of shares of Common Stock that would be
required to be sold (at an assumed initial public offering price of $
per share) to fund the $3.9 million S corporation distribution and (ii) the
recognition of federal and state income taxes as if the Company had been a
C corporation based on the effective tax rates that would have been in
effect during the periods reported. See "Prior S Corporation Status."
(4) Adjusted to reflect the sale of shares of Common Stock offered
hereby by the Company at an assumed initial public offering price of $
per share and the application of the estimated net proceeds therefrom to
reduce long-term debt by $13.9 million and to fund the $3.9 million S
corporation distribution to be effected at the closing of the Offering. See
"Prior S Corporation Status," "Use of Proceeds," and "Capitalization."
6
RISK FACTORS
An investment in the shares of Common Stock offered hereby involves a high
degree of risk. In addition to the other information contained in this
Prospectus, prospective investors should consider the following factors
carefully in evaluating an investment in the Common Stock offered hereby. This
Prospectus contains "forward-looking statements" relating to, without
limitation, future economic performance, plans and objectives of management
for future operations, and projections of revenues and other financial items
that are based on the beliefs of, assumptions made by and information
currently available to the Company's management. The words "expect,"
"estimate," "anticipate," "believe," "intend," "plan" and similar expressions
and variations thereof are intended to identify forward-looking statements.
The cautionary statements set forth in this "Risk Factors" section and
elsewhere in this Prospectus identify important factors with respect to such
forward-looking statements, including certain risks and uncertainties, that
could cause actual results to differ materially from those expressed in or
implied by such forward-looking statements.
GROWTH STRATEGY; ABILITY TO IMPLEMENT AND MANAGE GROWTH STRATEGY
The Company has experienced substantial growth in recent years. The
Company's failure or inability to implement and manage its growth strategy
successfully may have a material adverse effect on the Company's business,
operating results and financial condition. The Company's growth strategy,
which is based on rapidly opening a large number of stores in selected
markets, is subject to significant risks. In addition to expanding operations
in its existing markets, the Company intends to enter new markets. There can
be no assurance that the Company will be able to expand its market presence in
its current locations or successfully enter other markets through the opening
of new stores or acquisitions. The Company's future expansion may be limited
to those states that the Company believes have laws and regulations that are
favorable to the Company's business. The Company may also compete for
expansion opportunities with companies that have significantly greater
financial and other resources than the Company. The Company's ability to
execute its growth strategy will depend on a number of factors, including: (i)
the ability to obtain adequate financing for expansion plans; (ii) the
prevailing laws and regulatory environment of each state in which the Company
operates or seeks to operate, which are subject to change at any time; (iii)
the ability to adapt its infrastructure and systems to accommodate growth;
(iv) the ability to recruit, train and retain additional qualified personnel,
particularly store managers; (v) the availability of suitable locations; and
(vi) the ability to obtain regulatory approvals or any government permits and
licenses that may be required and other factors, some of which are beyond the
control of the Company.
There can be no assurance that the Company's systems, procedures, controls
and existing space will be adequate to support expansion of the Company's
operations. The Company's growth has placed significant demands on all aspects
of the Company's business, including its administrative, technical and
financial personnel and systems. Additional expansion by the Company may
further strain the Company's management, financial and other resources. The
Company's future operating results will substantially depend on the ability of
its officers and key employees to manage changing business conditions and to
implement and improve its technical, administrative, financial control and
reporting systems. In addition, there can be no assurance that the Company
will be able to implement its business strategy profitably in geographic areas
it does not currently serve. See "Management's Discussion and Analysis of
Financial Condition and Results of Operations," "Business--Growth Strategy"
and "Management."
LIQUIDITY AND ABILITY TO OBTAIN ADDITIONAL FINANCING
The Company requires a substantial amount of cash to implement its business
strategy, including, without limitation, cash to fund: held checks; operating
costs such as payroll, occupancy, general and administrative expenses; start-
up expenses of new stores; initial operating losses of new stores; and
investments in capital equipment primarily for new stores. These cash
requirements will increase as the number of stores increases. No assurance can
be given that the Company will have access to the capital markets in the
future for equity or debt financings or that financing through bank lines of
credit or other means will be available on acceptable terms to satisfy the
Company's cash requirements. The Company's inability to access the capital
markets or obtain
7
acceptable bank lines of credit or other financing could have a material
adverse effect on the Company's business, operating results, financial
condition and growth. See "Management's Discussion and Analysis of Financial
Condition and Results of Operations--Liquidity and Capital Resources."
RISKS ASSOCIATED WITH OPENING NEW STORES
The Company intends to grow primarily by opening new stores. Historically,
opening new stores has involved losses over the initial period such stores are
open. Stores opened during the year ended December 31, 1997 averaged 4.5
months for revenues to equal operating expenses. Moreover, for the year ended
December 31, 1997, it averaged nine months for the Company to recapture the
initial capital investment and operating losses incurred during the initial
4.5 month period. There can be no assurance, however, that new stores can be
operated profitably within such time, if at all. Moreover, the start-up costs
and the losses from initial operations attributable to each newly opened store
place demands upon the Company's liquidity and cash flow, and there can be no
assurance that the Company will be able to satisfy such demands. The opening
of additional stores, individually or in the aggregate, may have a material
adverse effect on the Company's business, operating results and financial
condition. See "--Liquidity and Ability to Obtain Additional Financing" and
"Business--Growth Strategy."
CREDIT RISK ASSOCIATED WITH CUSTOMERS; LACK OF COLLATERAL
The Company does not perform a credit check on its customers and does not
require that its customers provide collateral as security for their advances.
As a result, the Company is more susceptible to the risk that its customers
will not satisfy their repayment obligations than are consumer lenders or
finance companies that have underwriting criteria and typically have
collateral which they can repossess in the event of a borrower's default. In
addition, because the Company's customers often have limited liquidity, there
can be no assurance that customer funds will be available to redeem or honor
checks cashed by the Company. There can be no assurance that the rate of
delinquencies and defaults will not increase in the future.
MARKET ACCEPTANCE OF CASH ADVANCE SERVICES
The operating success of the Company, like other participants in the cash
advance industry, depends upon a number of factors, including consumer
perception of the industry's role in the financial community, the regulatory
environment for the industry's business and the market acceptance of its
services. The Company believes that broad market acceptance of its services
depends on several factors, including ease of use, price, access and quality
of service, and the effectiveness of marketing efforts. There can be no
assurance that the Company's services will achieve broad market acceptance. A
decline in the demand for, or the failure to achieve broad market acceptance
of, the Company's services would have a material adverse effect on the
Company's business, operating results and financial condition. See "Business--
Market for Company's Service," "--Competition" and "--The Customer
Transaction."
LITIGATION AND GOVERNMENT REGULATION
Several lawsuits have challenged cash advance transactions as violating
state usury laws, as unauthorized small loan lending, or as violations of
consumer protection laws. There can be no assurance that the Company will not
be materially adversely affected by litigation or consumer initiatives
directed against the Company or the cash advance industry generally. Several
states have also raised questions related to the proper regulatory framework
for cash advance transactions. The Company's business is regulated in each
state where it operates by state laws and regulations, including those
governing consumer protection and, in some cases, lending practices (such as
truth-in-lending and state usury laws), which are subject to change. These
laws and regulations, among other things, establish licensing requirements,
regulate the Company's credit approval and application procedures, establish
maximum fees and late charges, require specified disclosures to customers, and
govern collection practices. Any adverse change in or interpretation of
existing laws or regulations or the failure to comply with any such laws and
regulations could result in fines, class-action litigation or interruption or
cessation of certain business activities of the Company. In Tennessee and
North Carolina, the Company is regulated under
8
laws that contain "sunset" provisions, pursuant to which such laws will
expire, if not renewed or amended, in 1999 and 2001, respectively. In the
event these laws are not renewed or amended, the Company's business will be
unregulated in these states. Any of these events could have a material adverse
effect on the Company's business, operating results and financial condition.
In addition, there can be no assurance that amendments to, or renewals of,
such laws and regulations or new or more restrictive laws or regulations or
interpretations thereof will not be adopted in the future which may make
compliance more difficult or expensive, further limit or restrict fees and
other charges, curtail the current operations of the Company, restrict the
Company's ability to operate or otherwise materially adversely affect the
Company's business, operating results and financial condition. See "Business--
Government Regulation."
GENERAL ECONOMIC RISK
The risks associated with the Company's business may become more significant
in an economic slowdown or recession. During periods of economic slowdown or
recession, the Company may experience an increase in demand for its financial
services and an increase in rates of delinquencies and frequency of losses.
The Company's actual rates of delinquencies and frequency and severity of
losses may be higher under adverse economic conditions than those experienced
in the financial services industry generally due to several factors, including
the Company's lack of credit requirements, the fact that each transaction is
the result of a customer's short-term financial need, and the overall nature
of the Company's business. Any sustained period of economic slowdown or
recession could have a material adverse effect upon the Company's business,
operating results and financial condition.
INHERENT RISKS OF CASH BUSINESS
Since the Company's business requires it to maintain a significant supply of
cash in each of its stores, the Company is subject to the risk of cash
shortfalls resulting from employee errors and from theft by employees or third
parties. There can be no assurance that cash shortfalls will not increase in
future periods. See "Business--Organizational Structure and Procedures" and
"--Management Information Systems."
RELIANCE ON INTERNAL CONTROLS
Because the daily operations of each of the Company's stores, including
decisions to advance cash, are managed by individual store managers, assistant
managers and other on-site personnel, the Company's operations are dependent
upon internal controls. There can be no assurance that these internal controls
will result in sound employee decisions or prevent fraud, employee theft or
other abuses. In addition, there can be no assurance that the Company's
training program will result in the proper implementation and execution of any
internal controls that the Company adopts. The Company's business, operating
results and financial condition would be adversely affected to the extent that
the Company's internal controls and training program prove to be inadequate or
improperly implemented. See "Business--Organizational Structure and
Procedures."
DEPENDENCE ON KEY MANAGEMENT AND PERSONNEL
The Company's success is largely dependent upon its executive officers and
other key personnel, including W. Allan Jones, Jr., Chairman of the Board and
Chief Executive Officer, Steve Scoggins, President and Chief Operating
Officer, J. Samuel Choate, Jr., Executive Vice President and General Counsel,
and Henry E. Ryan, Vice President-Development. The loss of one or more of
these officers could have a material adverse effect on the Company's business,
operating results and financial condition. The Company also believes that to
be successful it must hire and retain highly qualified development and
marketing personnel. The inability of the Company to locate, hire and retain
such personnel could have a material adverse effect on the Company's business,
operating results and financial condition. The Company's growth also will
depend upon its ability to attract and retain additional skilled management
personnel. No assurance can be given that the Company will be able to retain
its key employees or that it will be able to attract qualified personnel in
the future. See "Management" and "Business--Employees."
9
CONCENTRATION OF BUSINESS IN CERTAIN STATES
The Company's business is and will likely continue to be highly concentrated
within certain states. As a result, the Company's business relies strongly
upon the prevailing economic, demographic, regulatory, competitive, and other
conditions within each state in which its operations are concentrated, and
changes in these conditions within any such state could have an adverse impact
on the Company's business, operating results and financial condition. For the
six months ended June 30, 1998, approximately 60.6% of the Company's revenues
were derived from stores located in Ohio, Tennessee, Indiana and California.
There can be no assurance that the Company's business will not continue to
become more concentrated in these states in the future. See "Business--
Stores."
COMPETITION
In addition to other cash advance companies in its markets, the Company also
competes with banks, credit card issuers, pawn shops, title pawn
establishments and other financial services entities and retail businesses
that provide short-term loans. The Company believes that the cash advance
industry will become more competitive as the industry consolidates, and the
Company could face additional competition as increasing numbers of traditional
check cashers, pawn shops, commercial banks and other retail credit outlets
add cash advance services and overdraft lines of credit to their financial
product offerings. The entry of such competitors into the Company's markets
could have a material adverse effect on the Company's business, operating
results and financial condition. Commercial banks could also lower demand for
the Company's services by reducing charges for insufficient funds fees. Some
of the Company's competitors have larger and more established customer bases
and substantially greater financial, marketing and other resources than the
Company. See "Business--Market for Company's Service" and "--Competition."
ACQUISITION RISKS
Although the Company's growth strategy currently is not predicated on
acquisitions, the Company may consider acquisitions of other companies in its
industry. There can be no assurance that the Company will be able to
successfully identify suitable acquisition candidates, complete acquisitions
or integrate acquired businesses into its operations. Once integrated,
acquired companies may not achieve levels of revenues, profitability or
productivity comparable to those of the Company's existing locations or
otherwise perform as expected. Acquisitions also involve special risks,
including risks associated with unanticipated liabilities and contingencies,
diversion of management attention and possible adverse effects on earnings
resulting from goodwill amortization, increased interest costs, the issuance
of additional securities and difficulties related to the integration of the
acquired business, some or all of which could have a material adverse effect
on the Company's business, operating results and financial condition. By
acquiring another company, the Company may also become subject to litigation
arising from the acquired company's operations prior to the acquisition, and,
by virtue of its increased market share, the Company could become a more
suitable target for class-action litigation brought by its cash advance
customers. The Company is unable to predict whether or when any prospective
acquisition candidate will become available or the likelihood that any
acquisition will be completed. In addition, the value of Common Stock held by
stockholders at the time of any acquisition may be diluted if the Company
issues Common Stock to complete such acquisition. See "Management's Discussion
and Analysis of Financial Condition and Results of Operations--Liquidity and
Capital Resources" and "Business--Growth Strategy."
CONCENTRATION OF STOCK OWNERSHIP; VOTING CONTROL BY CERTAIN OFFICERS
Upon completion of the Offering, W. Allan Jones, Jr. and members of his
family will beneficially own approximately % of the Common Stock outstanding
(approximately % of the outstanding Common Stock assuming full exercise of
the Underwriters' over-allotment option). As a result, Mr. Jones and his
family, voting together, will be able to control, or at a minimum to exercise
significant influence over, all matters requiring stockholder approval,
including the election of directors and approval of significant corporate
transactions. Such concentration of ownership also may have the effect of
delaying or preventing a change in
10
control of the Company. Purchasers in the Offering will become minority
stockholders of the Company and will be unable to control the management or
business policies of the Company. See "Principal and Selling Stockholders" and
"Description of Capital Stock--Certain Provisions of the Certificate, Bylaws
and Delaware Law."
ABSENCE OF PRIOR PUBLIC MARKET; OFFERING PRICE DETERMINED BY AGREEMENT
Prior to the Offering, there has been no public market for the Common Stock.
The initial public offering price of the Common Stock will be determined
solely by negotiations among the Company and the representatives of the
Underwriters and will not necessarily be related to the Company's book value,
net worth or any other established criteria of value and may not be indicative
of the market price for shares of Common Stock after the Offering. See
"Underwriting" for a discussion of the factors to be considered in determining
the initial public offering price for the Common Stock.
VOLATILITY OF MARKET PRICE
From time to time after the Offering, there may be significant volatility in
the market price for the Common Stock. There can be no assurance that the
market price of the Common Stock will not decline below the initial public
offering price. The stock market has from time to time experienced significant
price and volume fluctuations, which have particularly affected the market
prices of the stocks of financial services companies, and which may be
unrelated to the operating performance of particular companies. General market
conditions, including changes in interest rates, could substantially affect
the market value of the Common Stock. Moreover, numerous other factors, such
as government regulatory action, could have a significant impact on the future
market price of the Common Stock. The market price of the Common Stock could
be subject to significant fluctuation in response to, and may be adversely
affected by, variations in quarterly operating results, changes in earnings
estimates by analysts, developments in the cash advance industry and general
stock market conditions, as well as other factors. Any future shortfall in
revenue or earnings from levels expected by securities analysts could have an
immediate and significant adverse effect on the trading price of the Common
Stock in any given period. The Company's financial performance may in the
future experience substantial fluctuations as a consequence of industry
patterns, general economic conditions and other factors affecting capital
spending. There can be no assurance that such factors will not have a material
adverse effect on the Company's business, operating results and financial
condition.
SHARES ELIGIBLE FOR FUTURE SALE
Future sales, or the availability for future sale, of a significant number
of shares of Common Stock could adversely affect the prevailing market price
of the Common Stock. The million shares offered hereby will be eligible for
immediate sale in the public market without restriction, except for any shares
purchased in the Offering by "affiliates" of the Company, as such term is
defined in Rule 144 of the Securities and Exchange Commission (the
"Commission"). Of the remaining million shares of Common Stock which will
be outstanding upon the completion of the Offering, all shares held by the
directors and executive officers of the Company, all beneficial owners of more
than 5% of the Common Stock and Sirrom will be subject to 180-day lock-up
agreements with the Underwriters. Following the expiration of the 180-day
lock-up period, substantially all such shares of Common Stock will be eligible
for sale in the public market subject to compliance with certain volume
limitations and other conditions of Rule 144. Following the Offering, sales,
or the availability for future sale, of a significant number of shares of
Common Stock not only would have the potential to cause a material decrease in
the trading price of the Common Stock but also could impair the future ability
of the Company to raise capital at prices or on terms favorable to the
Company.
The warrants that Sirrom will hold following the Offering provide certain
rights with respect to the registration under the Securities Act of 1933, as
amended (the "Securities Act"), of up to shares of Common Stock
issuable upon exercise thereof. In the event the Company registers any of its
Common Stock either for its own account or for the account of other
securityholders, Sirrom is entitled to include such shares of Common Stock in
the registration, subject to certain limitations. See "Description of Capital
Stock--Warrants."
11
Further, the Company intends to file a Registration Statement on Form S-8 as
soon as practicable after the completion of the Offering to register 562,000
shares of Common Stock that are issuable upon the exercise of outstanding
stock options or that are available for issuance pursuant to the Amended and
Restated 1997 Long-Term Incentive Plan (the "Incentive Plan"). All of such
registered shares also generally would then be eligible for immediate sale in
the public market. Public sales of a significant number of such registered
shares could have a material adverse effect on the market price of the Common
Stock and the Company's ability to raise funds in the capital markets at a
time and price favorable to the Company. As a result, the Company may be
materially and adversely affected. See "Certain Transactions," "Shares
Eligible for Future Sale" and "Underwriting."
SUBSTANTIAL DISCRETION OF MANAGEMENT CONCERNING USE OF PROCEEDS
The Company expects to use approximately $17.8 million of the net proceeds
of the Offering for specific, identified purposes, with the remaining net
proceeds, expected to be approximately $ million, to be used for working
capital and general corporate purposes, including the opening of new stores.
Accordingly, management will have substantial discretion in spending a large
part of the net proceeds to be received by the Company. There can be no
assurance that management will use these proceeds in a manner that enhances
stockholder value. See "Use of Proceeds."
DILUTION
The initial public offering price is substantially higher than the tangible
book value per share of the outstanding Common Stock. Investors purchasing
shares of Common Stock in the Offering therefore will incur immediate and
substantial tangible book value dilution, and existing stockholders will
receive a material increase in the tangible book value per share of their
shares of Common Stock. At an assumed initial public offering price of $ .
per share (the midpoint of the estimated price range set forth on the cover
page of this Prospectus), the immediate dilution to new investors would be
$ . per share. In addition, investors purchasing shares of Common Stock in
the Offering will incur additional tangible book value dilution to the extent
outstanding options and warrants are exercised. See "Dilution."
DIVIDEND POLICY; RESTRICTIONS ON PAYMENT
The Company currently anticipates that after completion of the Offering all
of its earnings will be retained for development and expansion of its
business. The Company does not anticipate paying any cash dividends in the
foreseeable future. In addition, the Credit Facility prohibits the payment of
cash dividends without the lender's consent. See "Prior S Corporation Status"
and "Dividend Policy."
ANTI-TAKEOVER EFFECTS OF CERTAIN PROVISIONS OF THE CERTIFICATE OF
INCORPORATION, BYLAWS AND DELAWARE LAW
Certain provisions of the Company's Restated Certificate of Incorporation
(the "Certificate") and Restated Bylaws (the "Bylaws") and the Delaware
General Corporation Law could, together or separately, discourage potential
acquisition proposals, delay or prevent a change in control of the Company and
limit the price that certain investors might be willing to pay in the future
for shares of the Common Stock. Certain of these provisions provide for the
issuance, without further stockholder approval, of preferred stock with rights
and privileges which could be senior to the Common Stock, the payment of a
"fair" price in connection with certain business combinations with interested
stockholders, provide no right of the stockholders to call a special meeting
of stockholders, and limit the ability of stockholders to nominate directors
and submit proposals to be considered at stockholders' meetings. The
Certificate contains provisions that classify the Company's Board of Directors
into three classes, each of which will serve for different three-year periods
commencing with the Company's 1999 annual meeting of stockholders. The
classified board provisions could prevent a party who acquires control of a
majority of the outstanding voting stock of the Company from obtaining control
of the Board of Directors until the second annual stockholders meeting
following the date the acquiror obtains the controlling interest.
The Company also is subject to Section 203 of the Delaware General
Corporation Law which, subject to certain exceptions, prohibits a Delaware
corporation from engaging in any of a broad range of business
12
combinations with any "interested" stockholder for a period of three years
following the date that such stockholder became an interested stockholder. The
Company may enter into employment agreements with certain of its employees
that contain change in control provisions. The change in control provisions
may hinder, delay, deter or prevent a tender offer, proxy contest or other
attempted takeover because the covered employees can terminate their
employment if such provisions are triggered and thereby receive severance pay
of a lump sum. See "Management--Board of Directors" and "Description of
Capital Stock--Certain Provisions of the Certificate, Bylaws and Delaware
Law."
13
PRIOR S CORPORATION STATUS
Because the Company has been an S corporation for federal and certain state
income tax purposes, the Company's income (excluding the C corporation income
of Creditcorp of Tennessee, Inc., a wholly-owned subsidiary of the Company
("CCT"), through December 31, 1997) has been allocated to the Company's
individual stockholders rather than to the Company. The Company will terminate
its S corporation status in connection with the closing of the Offering and
will thereafter be taxed as a C corporation for federal and state income tax
purposes. Prior to the termination of the Company's S corporation status, the
Company expects to declare a distribution to its stockholders (the
"Distribution"), which Distribution will be paid out of a portion of the net
proceeds of the Offering. The Company estimates that the amount of the
Distribution would have been approximately $3.9 million if the termination of
the Company's S corporation status had occurred on June 30, 1998. The actual
amount of the Distribution will reflect the Company's taxable income through
the termination of its S corporation status. See "Use of Proceeds" and Note 2
of Notes to Consolidated Financial Statements. The Company's stockholders have
agreed to indemnify the Company for any federal, state and other income taxes
(including interest and penalties and other additions to tax) incurred by the
Company for the period for which it reported its taxable income as an S
corporation.
In addition, as a result of the termination of its S corporation status in
connection with the Offering, the Company will record a nonrecurring income
tax benefit and a corresponding net deferred income tax asset (the "Deferred
Tax Asset"). The amount of the Deferred Tax Asset would have been
approximately $166,000 if the termination of the Company's S corporation
status had occurred on June 30, 1998, but the actual amount will be adjusted
based on the tax effect of differences in the bases in assets and liabilities
for financial reporting and income tax purposes as of the date of the
termination of S corporation status.
USE OF PROCEEDS
The net proceeds to the Company from the sale of the shares of Common
Stock being offered by the Company at an assumed initial public offering price
of $ . per share (the midpoint of the estimated price range set forth on
the cover page of this Prospectus) are estimated to be approximately $
million (approximately $ million if the Underwriters' over-allotment option
is exercised in full) after deducting estimated underwriting discounts and
Offering expenses payable by the Company. The Company will not receive any
proceeds from the sale of the shares of Common Stock offered by the Selling
Stockholder. See "Principal and Selling Stockholders."
The Company currently intends to reduce outstanding indebtedness under the
Company's credit agreement (the "Credit Facility"), which indebtedness totaled
approximately $9.6 million at June 30, 1998. The Credit Facility carries a
variable interest rate (9.0% at June 30, 1998) based, at the Company's
election, on: (i) the lender's prime rate plus/less an incentive pricing
spread (the "Incentive Pricing Spread") based on certain financial ratios of
the Company; or (ii) LIBOR plus the Incentive Pricing Spread. Substantially
all assets have been pledged to secure indebtedness under the Credit Facility.
The Company has historically used the Credit Facility for working capital and
to finance the opening of new stores. The Credit Facility will terminate on
October 14, 2000. The anticipated reduction in amounts outstanding under the
Credit Facility will increase the availability of bank credit for general
business purposes, including the opening of new stores. See "Management's
Discussion and Analysis of Financial Condition and Results of Operations--
Liquidity and Capital Resources."
The Company currently intends to repay outstanding indebtedness under its
credit agreement with Sirrom (the "Sirrom Loan"), which indebtedness totaled
approximately $4.3 million at June 30, 1998. The Sirrom Loan bears interest at
14.0% per annum. The Company has used the proceeds from the Sirrom Loan for
working capital and to finance store openings. The Sirrom Loan will terminate
on November 7, 2001.
The Company currently intends to pay the Distribution to its existing
stockholders, which the Company estimates would have been approximately $3.9
million if the termination of the Company's S corporation status
14
had occurred on June 30, 1998. The actual amount of the Distribution will
reflect the Company's taxable income through the termination of the Company's
S corporation status. See "Prior S Corporation Status" and "Management's
Discussion and Analysis of Financial Condition and Results of Operations."
The Company currently intends to use the remaining approximately $
million of net proceeds for working capital and general corporate purposes,
including the opening of new stores. Pending application of the net proceeds
as described above, the Company intends to invest the net proceeds in short-
term, interest-bearing, investment grade securities.
DIVIDEND POLICY
The Company presently intends to employ all available funds for the
expansion of its business and therefore does not anticipate declaring or
paying cash dividends on the Common Stock, other than the Distribution, in the
foreseeable future. The Company has paid no cash dividends on its Common Stock
in the past, other than payment of the prior S corporation dividends. See
"Prior S Corporation Status." The payment of cash dividends, if any, in the
future will depend upon the Company's earnings, financial condition, capital
requirements, cash flow, long range plans and such other factors as the Board
of Directors of the Company may deem relevant at that time. Additionally, the
terms of the Credit Facility prohibit the Company, without the prior written
consent of the Company's lender, from paying cash dividends. See Note 3 to the
Company's Consolidated Financial Statements.
15
CAPITALIZATION
The following table sets forth the indebtedness and capitalization of the
Company at June 30, 1998: (i) on a historical basis, (ii) on a pro forma basis
to reflect the transactions set forth in note (1) hereto, and (iii) on a pro
forma as adjusted basis to reflect the sale by the Company of shares of
the Common Stock offered hereby and the application of the estimated net
proceeds therefrom, as described in "Use of Proceeds." This table should be
read in conjunction with "Use of Proceeds," "Management's Discussion and
Analysis of Financial Condition and Results of Operations" and the
Consolidated Financial Statements and Notes thereto included elsewhere in this
Prospectus.
JUNE 30, 1998
------------------------------------------
PRO FORMA
ACTUAL PRO FORMA (1) AS ADJUSTED (2)
----------- ------------- ---------------
Short-term debt (including current
portion of long-term debt)........ $ 33,672
=========== ==== ====
Long-term debt (3):
Sirrom Loan, net of unamortized
discount........................ 3,921,314
Credit Facility.................. 9,644,930
Other............................ 25,148
----------- ---- ----
Total long-term debt........... 13,591,392
=========== ==== ====
Warrants with redemption feature... 911,299
=========== ==== ====
Stockholders' equity:
Preferred Stock.................. --
Common Stock(4).................. 92,576
Additional paid-in capital....... 851,442
Retained earnings................ 3,034,091
Accumulated other comprehensive
loss............................ (84,649)
----------- ---- ----
Total stockholders' equity..... 3,893,460
=========== ==== ====
Total capitalization........... $18,429,823
=========== ==== ====
- --------
(1) Assumes the following transactions occurred as of June 30, 1998: (i) the
completion of the Distribution of approximately $3.9 million in connection
with the Company's termination of its S corporation status and (ii) the
recognition of a net deferred tax asset of $166,000 resulting from the
termination of the Company's S corporation status. See "Prior S
Corporation Status."
(2) Adjusted to reflect the sale of Common Stock offered by the Company and
the use of the net proceeds therefrom. See "Use of Proceeds."
(3) See Note 3 to the Company's Consolidated Financial Statements for a
description of the Company's long-term debt.
(4) Excludes shares that will be subject to outstanding warrants following
completion of the Offering and 561,750 shares of Common Stock reserved for
issuance under the Incentive Plan, of which options to purchase 364,344
shares of Common Stock had been granted at June 30, 1998 at a weighted
average exercise price of $6.95 per share. See "Management--Incentive
Plan," "Shares Eligible for Future Sale" and Note 7 to Consolidated
Financial Statements.
16
DILUTION
As of June 30, 1998, the net tangible book value of the Company was
approximately $3.4 million, or $0.37 per share of Common Stock. "Net tangible
book value per share" is defined as the book value of tangible assets of the
Company less all liabilities, divided by the number of issued and outstanding
shares of Common Stock. After giving effect to the sale by the Company of the
shares of Common Stock offered by the Company at an assumed initial
public offering price of $ . per share, the exercise of warrants to purchase
an aggregate of shares of Common Stock, and the payment of the
Distribution, and after deducting the estimated underwriting discounts and
Offering expenses payable by the Company, the pro forma net tangible book
value of the Company as of June 30, 1998, would have been approximately $ .
or $ . per share. This represents an immediate increase in net tangible book
value of $ . per share to existing stockholders and an immediate dilution in
net tangible book value of $ . per share to purchasers of shares of Common
Stock in the Offering. The following table illustrates the per share dilution:
Assumed initial public offering price per share.................. $
---
Net tangible book value before the Offering.................... $0.37
Decrease per share attributable to the Distribution............
Increase per share attributable to new stockholders............
-----
Pro forma net tangible book value per share after giving effect
to the Offering.................................................
---
Dilution per share to new stockholders........................... $
---
The following table sets forth, as of June 30, 1998, with respect to the
existing stockholders and the new investors in the Offering, a comparison of
the number of shares of Common Stock acquired from the Company, the percentage
ownership of such shares, the total consideration paid, the percentage of
total cash consideration paid and the average price per share:
SHARES TOTAL AVERAGE
PURCHASED CONSIDERATION PRICE
-------------- -------------- PER
NUMBER PERCENT AMOUNT PERCENT SHARE
------ ------- ------ ------- -------
Existing stockholders..................... % $ % $
New stockholders
--- ----- ---- -----
Total................................. 100.0% $ 100.0%
=== ===== ==== =====
Sales by Sirrom in the Offering will reduce the number of shares held by
existing stockholders to , or %, and will increase the number of shares to
be held by new investors to , or %, of the total number of shares of the
Common Stock to be outstanding after the Offering ( shares, or %, if the
Underwriters' over-allotment option is exercised in full). See "Principal and
Selling Stockholders."
The foregoing tables do not take into account the exercise of outstanding
warrants and options to acquire shares of Common Stock. At June 30, 1998,
there were outstanding warrants to purchase 487,247 shares of Common Stock at
an aggregate exercise price of $0.05. In addition, at June 30, 1998, there
were outstanding options to purchase 364,344 shares of Common Stock at a
weighted average exercise price of $6.95 per share. See Note 7 to Consolidated
Financial Statements and "Management--Incentive Plan."
17
SELECTED CONSOLIDATED FINANCIAL AND OPERATING DATA
The following selected consolidated financial data as of December 31, 1996
and 1997 and for the years ended December 31, 1995, 1996, and 1997, have been
derived from the consolidated financial statements of the Company included in
this Prospectus, which have been audited by Arthur Andersen LLP, independent
public accountants. The following selected consolidated financial data as of
and for the years ended December 31, 1993 and 1994 and the six months ended
June 30, 1997 and 1998, have been derived from unaudited consolidated
financial statements of the Company and, in the opinion of management, have
been prepared on the same basis as the audited financial statements and
include all adjustments, consisting only of normal recurring accruals,
necessary for a fair presentation of such information. Operating results for
the six months ended June 30, 1998 are not necessarily indicative of the
results that may be expected for the entire year. Prior to the Offering, the
Company was an S corporation; accordingly, certain financial data may not be
comparable to or indicative of post-Offering results. The selected
consolidated financial data are qualified by reference to, and should be read
in conjunction with, the Company's consolidated financial statements and the
notes thereto included in this Prospectus, as well as "Management's Discussion
and Analysis of Financial Condition and Results of Operations."
SIX MONTHS ENDED
YEAR ENDED DECEMBER 31, JUNE 30,
------------------------------------------------------ ----------------------
1993 1994 1995 1996 1997 1997 1998
--------- --------- ---------- ----------- ----------- ---------- -----------
STATEMENT OF OPERATIONS
DATA:
Revenues................ $ 77,743 $ 980,048 $3,715,056 $10,252,085 $21,446,588 $8,007,852 $21,241,222
Store expenses:
Salaries and benefits.. 15,851 202,585 783,615 2,374,450 5,031,970 2,068,250 4,715,050
Occupancy.............. 7,363 70,416 401,322 1,017,438 2,470,382 980,536 2,505,996
Bad debt expense....... 1,826 50,976 113,931 438,551 1,196,469 213,839 1,135,456
Other store expenses... 21,513 161,582 838,674 1,468,739 4,398,982 1,834,609 3,869,307
--------- --------- ---------- ----------- ----------- ---------- -----------
Total store expenses... 46,553 485,559 2,137,542 5,299,178 13,097,803 5,097,234 12,225,809
--------- --------- ---------- ----------- ----------- ---------- -----------
General and administra-
tive expenses:
Legal and professional
expenses ............. -- 15,466 49,222 266,073 3,192,732(1) 454,633 561,102
Other general and
administrative
expenses.............. -- 201,269 612,075 2,306,986 5,406,352 1,948,178 4,630,223
--------- --------- ---------- ----------- ----------- ---------- -----------
Total general and
administrative
expenses............. -- 216,735 661,297 2,573,059 8,599,084 2,402,811 5,191,325
--------- --------- ---------- ----------- ----------- ---------- -----------
Interest expense, net... -- 15,590 36,649 124,217 621,452 194,568 620,443
--------- --------- ---------- ----------- ----------- ---------- -----------
Income (loss) before in-
come taxes............. 31,190 262,164 879,568 2,255,631 (871,751) 313,239 3,203,645
Provision for (benefit
from) income taxes..... 1,958 46,080 346,540 515,109 (594,236) 200,636 1,082,515(2)
--------- --------- ---------- ----------- ----------- ---------- -----------
Net income (loss)....... $ 29,232 $ 216,084 $ 533,028 $ 1,740,522 $ (277,515) $ 112,603 $ 2,121,130
========= ========= ========== =========== =========== ========== ===========
Historical earnings per
share:
Basic.................. $ -- $ 0.02 $ 0.06 $ 0.19 $ (0.03) $ 0.01 $ 0.23
========= ========= ========== =========== =========== ========== ===========
Diluted................ $ -- $ 0.02 $ 0.06 $ 0.19 $ (0.03) $ 0.01 $ 0.22
========= ========= ========== =========== =========== ========== ===========
Weighted average common
shares outstanding--
basic.................. 8,988,000 8,988,000 8,988,000 8,988,000 9,123,929 8,988,000 9,257,640
========= ========= ========== =========== =========== ========== ===========
Weighted average common
shares outstanding--
diluted................ 8,988,000 8,988,000 8,988,000 9,060,084 9,123,929 9,475,247 9,778,397
========= ========= ========== =========== =========== ========== ===========
PRO FORMA DATA(3):
Historical income (loss)
before income taxes.... $ (871,751) $ 3,203,645
Pro forma provision for
(benefit from) income
taxes.................. (331,265) 1,217,385
----------- -----------
Pro forma net income
(loss)................. $ (540,486) $ 1,986,260
=========== ===========
Pro forma earnings per
share:
Basic.................. $ $
=========== ===========
Diluted................ $ $
=========== ===========
Weighted average common
shares outstanding--
basic..................
=========== ===========
Weighted average common
shares outstanding--
diluted................
=========== ===========
18
SIX MONTHS ENDED
YEAR ENDED DECEMBER 31, JUNE 30,
------------------------------------------------------ ------------------------
1993 1994 1995 1996 1997 1997 1998
------- -------- ---------- ---------- ----------- ----------- -----------
OPERATING DATA:
Stores open at beginning
of period.............. -- 2 9 52 69 69 176
Stores opened during pe-
riod................... 2 7 43 20 107 53 91
Stores closed during pe-
riod................... -- -- -- (3) -- -- (1)
------- -------- ---------- ---------- ----------- ----------- -----------
Stores open at end of
period................. 2 9 52 69 176 122 266
======= ======== ========== ========== =========== =========== ===========
Held checks at end of
period, net............ $49,610 $455,719 $1,922,738 $3,466,898 $ 9,847,430 $ 5,000,455 $15,119,598
======= ======== ========== ========== =========== =========== ===========
Number of checks held at
end of period.......... 374 1,683 9,728 19,012 45,871 26,255 67,195
======= ======== ========== ========== =========== =========== ===========
Bad debt expense as a
percentage of
revenues............... 2.3% 5.2% 3.1% 4.3% 5.6% 2.7% 5.3%
======= ======== ========== ========== =========== =========== ===========
DECEMBER 31 JUNE 30, 1998
-------------------------------------------------- -----------------------
1993 1994 1995 1996 1997 ACTUAL ADJUSTED(4)
------- -------- ---------- ---------- ----------- ----------- -----------
BALANCE SHEET DATA:
Working capital......... $25,911 $194,047 $ 459,387 $3,212,497 $ 9,124,337 $14,834,241
Property and equipment,
net.................... 2,861 58,872 287,036 645,859 2,184,527 3,032,223
Total assets............ 70,585 595,062 2,590,388 6,114,331 15,925,011 23,169,506
Long-term debt, less
current maturities..... 0 0 0 562,939 8,650,069 13,591,392
Total stockholders' eq-
uity................... 29,232 255,601 788,629 3,112,284 2,433,121 3,893,460
- --------
(1) Includes nonrecurring charges of $2.2 million for the settlement of a
class action lawsuit filed against the Company in Tennessee and related
legal expenses of approximately $500,000. See "Business--Legal
Proceedings."
(2) On January 1, 1998, in connection with the S corporation election of CCT,
the Company eliminated approximately $709,000 of previously recognized net
deferred federal tax benefits.
(3) Gives effect to the following in connection with the Company's termination
of its S corporation status as if such termination occurred on January 1,
1997: (i) the estimated number of shares of Common Stock that would be
required to be sold (at an assumed initial public offering price of
$ . per share) to fund the $3.9 million Distribution and (ii) the
recognition of federal and state income taxes as if the Company had been a
C corporation based on the effective tax rates that would have been in
effect during the periods reported. See "Prior S Corporation Status."
(4) Adjusted to reflect the sale of shares of Common Stock offered
hereby by the Company at an assumed initial public offering price of
$ . per share and the application of the estimated net proceeds
therefrom to reduce long-term debt by $13.9 million and to fund the $3.9
million Distribution to be effected at the closing of the Offering. See
"Prior S Corporation Status," "Use of Proceeds" and "Capitalization."
19
MANAGEMENT'S DISCUSSION AND ANALYSIS
OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS
The following analysis of the financial condition and results of operations
of the Company should be read in conjunction with the preceding "Selected
Consolidated Financial Data," the Company's Consolidated Financial Statements
and the related Notes thereto included elsewhere in this Prospectus. With the
exception of historical information, certain of the matters discussed in this
Prospectus are forward-looking statements that involve risks and uncertainties
and actual results could differ materially from those discussed. The words and
phrases "should be," "will be," "predicted," "believe," "expect," "anticipate"
and similar expressions identify forward-looking statements. These forward-
looking statements reflect the Company's current views in respect of future
events in financial performance, but are subject to many uncertainties and
factors relating to the Company's operations and business environment which
may cause its actual results to differ materially from any future results
expressed or implied by such forward-looking statements. See "Risk Factors."
OVERVIEW
The Company is a specialty financial services company that advances cash to
its customers by cashing their personal checks and agreeing to hold the checks
until they are redeemed by the customers or until a short holding period,
typically less than 17 days, has expired. The Company targets customers who
are currently employed and have an active checking account. To initiate a
relationship with the Company, each customer is required to provide proof of
income, proof of an active personal checking account, proof of residence and
proper identification. The Company limits the amount of cash that it advances
to customers to $300 per transaction and prohibits customers from having more
than one outstanding transaction with the Company. The Company generally does
not cash checks with a face amount exceeding 50.0% of the net "take-home"
amount of the customer's next paycheck. In exchange for its service, the
Company receives a fee ranging from approximately 11.5% to 18.0% of the face
amount of the check. As of June 30, 1998, the Company operated 266 stores in
12 states.
The Company records an allowance for uncollectible checks based on its
historical bad debt experience. The Company's practice is to charge off those
checks that, as of the fifth day of each month, have remained in default for a
period of at least 30 days. An analysis of the Company's allowance for
uncollectible checks is as follows:
YEAR ENDED DECEMBER 31,
-------------------------------- SIX MONTHS ENDED
1995 1996 1997 JUNE 30, 1998
-------- --------- ----------- ----------------
Beginning balance............ $ 11,631 $ 53,762 $ 135,000 $ 255,000
Bad debt expense............. 113,931 438,551 1,196,469 1,135,456
Charge-offs, net............. (71,800) (357,313) (1,076,469) (1,125,456)
-------- --------- ----------- -----------
Ending balance............... $ 53,762 $ 135,000 $ 255,000 $ 265,000
======== ========= =========== ===========
The Company commenced operations in June 1993 and has expanded rapidly,
opening seven stores in 1994, 43 stores in 1995, 20 stores in 1996, 107 stores
in 1997 and 91 stores during the six months ended June 30, 1998. Accordingly,
the Company's recent rapid growth may distort some of the Company's ratios and
financial statistics and may make period-to-period comparisons difficult.
Furthermore, the Company's historical financial statistics may not be
indicative of the Company's results in future periods. The Company's revenues,
expenses and gross margin are all significantly affected by the number of new
store openings as well as by the size of the markets in which these stores are
opened. Moreover, because the Company expenses most of its store opening costs
as incurred, the number of store openings significantly affects the Company's
gross margin. The Company believes that its gross margin will continue to be
adversely affected by new store openings.
Revenues. The Company's revenues are derived from the fees that it charges
its customers for its check cashing services. These fees range from
approximately 11.5% to 18.0% of the face amount of the check. The Company
recognizes revenues when cash is advanced to the customer. For the year ended
December 31, 1997 and the six months ended June 30, 1998, the Company had
revenues of $21.4 and $21.2 million, respectively. Growth in revenues has been
driven by the number of new store openings and by increases in revenues
generated
20
by existing stores. For example, revenue increased $11.1 million to $21.4
million for the year ended December 31, 1997 from $10.3 million for the year
ended December 31, 1996. Of this increase, $5.5 million was attributable to
the 107 stores opened during 1997 and $5.4 million was attributable to the 69
stores already opened at January 1, 1997.
Revenues are also affected by the amount of fees the Company may charge for
its services in the states in which it operates. For example, in Kentucky the
Company may charge up to 15.0% of the face amount of the check, whereas in
Mississippi the Company may charge up to 18.0% of the face amount of the
check. In 1997, new legislation in Tennessee resulted in a 21.1% reduction of
the Company's maximum fee on a transaction. At the same time, Tennessee
increased the minimum capital requirements for companies to operate in the
check cashing business within the state. The Company's revenue per store in
Tennessee decreased as a result of the new legislation. The decrease, however,
was partly offset by an increase in transaction volume as a result of a
decrease in competition due to the implementation of the maximum permissible
fee and to competitors being unable to meet the new minimum capital
requirements. The ability of the Company to increase revenue depends upon the
Company's ability to continue to open new stores, to increase the number of
transactions at existing stores, and the effect of legislation.
Store Expenses. Store expenses consist of salaries and benefits, occupancy
costs and other store expenses. Occupancy costs consist of store rental,
maintenance, utility and telephone charges. Rent expense constitutes the
greatest portion of occupancy costs. In 1997, the Company experienced an
increase of 27.0% in average monthly rent expense. This increase resulted from
the opening of 107 additional stores and the Company's decision to locate its
new stores in higher income neighborhoods where rents are higher. The Company
expects rental expense to continue to increase at a moderate pace as the
Company continues to open new stores in locations that charge higher rents.
Other store expenses consist of bad debt expense and store-level
advertising, depreciation and amortization, small equipment expense, travel
and opening expenses for new stores. The Company's practice is to charge off
those checks that, as of the fifth day of each month, have remained in default
for a period of at least 30 days. In addition, an allowance for uncollectible
checks is estimated and recorded (annually through December 31, 1997 and
quarterly thereafter) based on the Company's historical bad debt experience.
For the year ended December 31, 1997 and the six months ended June 30, 1998,
the Company's bad debt expense was $1.2 million (5.6% of revenues) and $1.1
million (5.3% of revenues), respectively. Store opening costs are included in
other store expenses and are expensed as incurred. For the year ended December
31, 1997, the initial capital required to open a new store averaged
approximately $20,000 per store, primarily for leasehold improvements. Stores
opened during the year ended December 31, 1997 averaged 4.5 months for
revenues to increase to a level that equaled operating expenses. Moreover, for
the year ended December 31, 1997, it averaged nine months for the Company to
recapture the initial capital investment and operating losses incurred during
the initial 4.5 month period. Other store expenses for the year ended December
31, 1996 were lower as a percentage of revenue than in 1995 or 1997 because
the Company opened only 20 stores in 1996, whereas it had opened 43 stores in
1995 and 107 stores in 1997. In particular, in 1997, the Company opened 45
stores in the last four months of the year, which resulted in cumulative
operating losses of approximately $500,000 for these stores during this
period.
General and Administrative Expenses. General and administrative expenses
consist of general and administrative expenses not directly attributable to
store operations, including legal and professional expenses, corporate
salaries and bonuses, depreciation and amortization, occupancy costs,
maintenance, utility and telephone charges, general advertising, travel and
insurance. Legal and professional expenses increased significantly in 1996 and
1997 as a result of certain litigation in which the Company was involved. In
1997, the Company settled a class action lawsuit filed against the Company in
Tennessee for $2.2 million and incurred additional legal expenses of
approximately $500,000 resulting from the defense of such lawsuit.
Termination of S Corporation Status. As a result of the termination of its S
corporation status in connection with the Offering, the Company will record a
nonrecurring income tax benefit and a corresponding net deferred income tax
asset (the "Deferred Tax Asset"). The amount of the Deferred Tax Asset would
have been approximately $166,000 if the termination of the Company's S
corporation status had occurred on June 30, 1998, but the actual amount will
be adjusted based on the tax effect of differences in the bases in assets and
liabilities for financial reporting and income tax purposes as of the date of
the termination of S corporation status.
21
RESULTS OF OPERATIONS
The following table sets forth, for the periods indicated, the components of
the Company's consolidated statements of operations expressed as a percentage
of revenues:
SIX MONTHS
YEAR ENDED ENDED
DECEMBER 31, JUNE 30,
------------------- ------------
1995 1996 1997 1997 1998
----- ----- ----- ----- -----
Revenue................................. 100.0% 100.0% 100.0% 100.0% 100.0%
Store expenses:
Salaries and benefits.................. 21.1 23.2 23.5 25.8 22.2
Occupancy.............................. 10.8 9.9 11.5 12.2 11.8
Bad debt expense....................... 3.1 4.3 5.6 2.7 5.3
Other store expenses................... 22.5 14.3 20.5 22.9 18.3
----- ----- ----- ----- -----
Total store expenses.................. 57.5 51.7 61.1 63.7 57.6
----- ----- ----- ----- -----
Gross margin............................ 42.5 48.3 38.9 36.3 42.4
----- ----- ----- ----- -----
General and administrative expenses:
Legal and professional................. 1.3 2.6 14.9 5.7 2.6
Other general and administrative....... 16.5 22.5 25.2 24.3 21.8
----- ----- ----- ----- -----
Total general and administrative ex-
penses 17.8 25.1 40.1 30.0 24.4
----- ----- ----- ----- -----
Interest expense, net................... 1.0 1.2 2.9 2.4 2.9
----- ----- ----- ----- -----
Income (loss) before income taxes....... 23.7 22.0 (4.1) 3.9 15.1
Provision for (benefit from) income tax-
es..................................... 9.3 5.0 (2.8) 2.5 5.1
----- ----- ----- ----- -----
Net income (loss)....................... 14.4% 17.0% (1.3)% 1.4% 10.0%
===== ===== ===== ===== =====
The following table presents, for each period indicated, the contribution of
those stores opened during a given period as a percent of total revenues:
YEAR ENDED DECEMBER 31, SIX MONTHS ENDED JUNE 30,
----------------------------------------------- -------------------------------
1995 1996 1997 1997 1998
--------------- --------------- --------------- --------------- ---------------
NUMBER PERCENT NUMBER PERCENT NUMBER PERCENT NUMBER PERCENT NUMBER PERCENT
OF OF TOTAL OF OF TOTAL OF OF TOTAL OF OF TOTAL OF OF TOTAL
STORES REVENUES STORES REVENUES STORES REVENUES STORES REVENUES STORES REVENUES
------ -------- ------ -------- ------ -------- ------ -------- ------ --------
1993 Stores............. 2 14.1% 2 5.8% 2 2.7% 2 3.8% 2 1.2%
1994 Stores............. 7 41.1 7 17.0 7 7.9 7 11.0 7 3.9
1995 Stores............. 43 44.8 43 67.6 43 46.7 43 57.4 43 25.9
1996 Stores............. 17 9.6 17 16.5 17 18.4 17 11.7
1997 Stores............. 107 26.2 53 9.5 107 50.9
1998 Stores............. 90 6.3
--- ----- --- ----- --- ----- --- ----- --- -----
Total................... 52 100.0% 69 100.0% 176 100.0% 122 100.0% 266 100.0%
=== ===== === ===== === ===== === ===== === =====
COMPARISON OF THE SIX MONTHS ENDED JUNE 30, 1998 TO THE SIX MONTHS ENDED JUNE
30, 1997
Revenues. Revenues for the six months ended June 30, 1998 increased $13.2
million, or 165%, to $21.2 million from $8.0 million for the same period in
1997. This growth resulted primarily from the increase in revenue generated by
the 107 new stores opened in 1997 and the 71 stores opened in previous years.
Additional growth resulted from the 91 stores opened during the six months
ended June 30, 1998 as compared to 53 stores opened during the same period in
1997. The Company closed one store in January 1998. The Company's average
store revenues for stores opened for at least 12 months at the beginning of
each of the following periods was $132,000 (63 stores) for the six months
ended June 30, 1998 as compared to $116,000 (19 stores) for the six months
ended June 30, 1997.
22
The following table presents, for the periods provided, the amount of
revenues, the number of stores and the average revenues per store for those
stores opened during a given year, net of closings:
SIX MONTHS ENDED JUNE 30,
--------------------------------------------------------------
1997 1998
------------------------------ -------------------------------
AVERAGE AVERAGE
NUMBER OF REVENUES NUMBER OF REVENUES
REVENUES STORES PER STORE REVENUES STORES PER STORE
---------- --------- --------- ----------- --------- ---------
1993 Stores.. $ 294,361 2 $147,180 $ 260,749 2 $130,375
1994 Stores.. 858,440 7 122,634 825,785 7 117,969
1995 Stores.. 4,485,635 43 104,317 5,468,745 43 127,180
1996 Stores.. 1,439,517 17 84,677 2,471,569 17 145,386
1997 Stores.. 740,835 53 13,978 10,733,359 107 100,312
1998 Stores.. 1,328,485 90 14,761
---------- --- -------- ----------- --- --------
Total........ $7,818,788 122 $ 64,088 $21,088,692 266 $ 79,281
========== === ======== =========== === ========
Store Expenses. Store expenses increased $7.1 million, or 140%, to $12.2
million for the six months ended June 30, 1998 from $5.1 million for the same
period in 1997. The following table sets forth a line item comparison of store
expenses for the six months ended June 30, 1998 and the six months ended June
30, 1997:
SIX MONTHS ENDED JUNE 30,
--------------------------
1997 1998
------------ -------------
Salaries and benefits............................ $ 2,068,250 $ 4,715,050
Occupancy costs.................................. 980,536 2,505,996
Advertising...................................... 623,354 1,327,715
Bad debt expense................................. 213,839 1,135,456
Depreciation and amortization.................... 171,825 590,986
Supplies......................................... 247,085 602,817
Small equipment expenses......................... 248,698 329,817
Miscellaneous store expenses..................... 543,647 1,017,972
------------ -------------
Total store expenses............................ $ 5,097,234 $ 12,225,809
============ =============
The increase in store expenses was due primarily to the increase in the
total number of stores. Store expenses as a percent of revenue decreased to
57.6% for the six months ended June 30, 1998 from 63.7% for the same period in
1997. Bad debt expense increased $922,000, or 431%, to $1.1 million (5.3% of
revenues) for the six months ended June 30, 1998 from $214,000 (2.7% of
revenues) for the same period in 1997. This increase reflected management's
decision to pursue a broader customer base in the belief that the increase in
revenues would exceed any corresponding increases in bad debt expense.
General and Administrative Expenses. General and administrative expenses
increased $2.8 million, or 116%, to $5.2 million for the six months ended June
30, 1998 from $2.4 million during the same period in 1997. The following table
sets forth a line item comparison of general and administrative expenses for
the six months ended June 30, 1998 and the six months ended June 30, 1997:
SIX MONTHS ENDED JUNE 30,
-------------------------
1997 1998
------------ ------------
Salaries and wages................................ $ 1,161,211 $ 2,303,857
Legal and professional expenses................... 454,633 561,102
Depreciation and amortization..................... 50,922 139,239
Occupancy costs................................... 182,302 323,884
Other costs....................................... 553,743 1,863,243
------------ ------------
Total general and administrative expenses........ $ 2,402,811 $ 5,191,325
============ ============
23
The increase in general and administrative expenses for the six months ended
June 30, 1998 was primarily due to the opening of 91 new stores. General and
administrative expenses as a percent of revenue, however, declined to 24.4%
for the six months ended June 30, 1998 from 30.0% for the same period in 1997.
This percentage decrease was primarily the result of the Company's rapid
growth coupled with the fixed nature of various expense items and the
Company's commitment to control expenses.
Interest Expense. Interest expense increased $425,000, or 218%, to $620,000
for the six months ended June 30, 1998 from $195,000 during the same period in
1997. The increase in interest expense resulted from increased borrowings to
fund the Company's growth. The Company's weighted average cost of borrowings
decreased to 10.5% in 1998 from 12.6% in 1997 due to the Company's lower cost
of borrowings on the Credit Facility that was put in place in mid-1997.
Provision for (Benefit from) Income Taxes. As of June 30, 1998, taxable
income or loss of the Company and its subsidiaries, for federal income tax
purposes, was reported by the equity holders on their respective income tax
returns. Accordingly, no provision for federal income taxes was recorded on
the consolidated statement of income for the Company as of June 30, 1998. The
expense of $1.1 million as shown for the six months ended June 30, 1998
represents (i) a reversal of the previously recorded deferred federal tax
asset of $709,000 for CCT, and (ii) the accrual of $374,000 for state income
taxes owed on amounts earned during the first six months of 1998. CCT
converted from a C corporation to an S corporation in January 1998,
necessitating the reversal of the previously-recorded deferred federal tax
asset.
The tax provision of $201,000 for the six months ended June 30, 1997
principally reflects the federal and state income tax on income reported by
the Company's two C corporation subsidiaries, CCT and Check into Cash
Holdings, Inc. ("CICH"), for the six months ended June 30, 1997.
COMPARISON OF THE YEAR ENDED DECEMBER 31, 1997 TO THE YEAR ENDED DECEMBER 31,
1996
Revenues. Revenues for the year ended December 31, 1997 increased $11.1
million, or 109%, to $21.4 million from $10.3 million for the year ended
December 31, 1996. This growth resulted primarily from the increase in revenue
generated by the 107 new stores opened in 1997 compared to 20 in 1996. The
continuing growth of the stores opened in 1995 and 1996 also contributed to
the growth in revenues. For the year ended December 31, 1997, 73.8% of the
Company's revenues were derived from stores that were open at the beginning of
the year, whereas 26.2% were derived from new stores that were opened during
the year. The Company's average store revenues from stores open for at least
12 months at the beginning of 1996 and 1997 were $258,000 (nine stores) and
$232,000 (52 stores), respectively.
The following table presents, for the periods provided, the amount of
revenues, the number of stores and the average revenues per store for those
stores opened during a given year, net of closings:
YEAR ENDED DECEMBER 31,
---------------------------------------------------------------
1996 1997
------------------------------- -------------------------------
AVERAGE AVERAGE
NUMBER OF REVENUES NUMBER OF REVENUES
REVENUES STORES PER STORE REVENUES STORES PER STORE
----------- --------- --------- ----------- --------- ---------
1993 Stores............. $ 588,792 2 $294,396 $ 564,779 2 $282,390
1994 Stores............. 1,729,061 7 247,009 1,670,982 7 238,712
1995 Stores............. 6,859,330 43 159,519 9,831,234 43 228,633
1996 Stores............. 968,722 17 56,984 3,483,581 17 204,917
1997 Stores............. 5,507,925 107 51,476
----------- --- -------- ----------- --- --------
Total.................. $10,145,905 69 $147,042 $21,058,501 176 $119,651
=========== === ======== =========== === ========
24
Store Expenses. Store expenses increased $7.8 million, or 147%, to $13.1
million for the year ended December 31, 1997 from $5.3 million for the year
ended December 31, 1996. The following table sets forth a line item comparison
of store expenses for the year ended December 31, 1997 to the year ended
December 31, 1996:
YEAR ENDED
DECEMBER 31,
----------------------
1996 1997
---------- -----------
Salaries and benefits................................ $2,374,450 $ 5,031,970
Occupancy............................................ 1,017,438 2,470,382
Advertising.......................................... 503,745 1,580,160
Bad debt expense..................................... 438,551 1,196,469
Depreciation and amortization........................ 94,599 625,116
Supplies............................................. 217,731 543,199
Small equipment expense.............................. 73,410 364,366
Miscellaneous store expenses......................... 579,254 1,286,141
---------- -----------
Total store expenses............................... $5,299,178 $13,097,803
========== ===========
The increase in store expenses was due primarily to the increased number of
stores and the Company's decision to increase its advertising expenditures,
which resulted in advertising costs increasing $1.1 million, or 214%, to $1.6
million in 1997 from $504,000 in 1996. In addition, the Company, based on
increased demographic knowledge of its customer base, began locating its
stores in higher income neighborhoods. Rent for new store openings, together
with higher rent for more desirable locations, resulted in the rental
component of occupancy costs increasing $938,000, or 148%, to $1.6 million in
1997 from $636,000 in 1996. The average monthly rental for stores in existence
at December 31, 1997 increased $265, or 27.3%, to $1,234 from $969 for those
in existence at December 31, 1996. Bad debt expense increased $758,000, or
173%, to $1.2 million (5.6% of revenues) for 1997 from $439,000 (4.3% of
revenues) for 1996. Also, depreciation and amortization increased $531,000 to
$625,000 in 1997 from $95,000 in 1996. This increase was primarily due to the
opening of 107 stores during 1997. Depreciation and amortization as a
percentage of revenue increased because store opening costs are incurred
before the new stores begin to generate revenues. In particular, in 1997, the
Company opened 45 stores in the last four months of the year, which resulted
in cumulative operating losses of approximately $500,000 for these stores.
General and Administrative Expenses. General and administrative expenses
increased $6.0 million, or 234%, to $8.6 million for 1997 from $2.6 million
for 1996. The following table sets forth a line item comparison of general and
administrative expenses for the year ended December 31, 1997 to the year ended
December 31, 1996:
YEAR ENDED DECEMBER 31,
-----------------------
1996 1997
----------- -----------
Salaries and wages.................................. $ 1,429,448 $2,959,340
Legal and professional expenses..................... 266,073 3,192,732
Depreciation and amortization....................... 21,598 284,224
Occupancy costs..................................... 98,421 382,530
Other costs......................................... 757,519 1,780,258
----------- -----------
Total general and administrative expenses......... $ 2,573,059 $ 8,599,084
=========== ===========
The increase in general and administrative expenses was due in part to the
increased number of stores and the significant increase in legal and
professional expenses. Legal and professional expenses increased $2.9 million
to $3.2 million for the year ended December 31, 1997 from $266,000 for the
year ended December 31, 1996. This increase was due primarily to the Company's
defense of the multiparty class action lawsuit filed against CCT on March 4,
1996, and its ultimate settlement on September 19, 1997 for $2.2 million which
was all reflected in legal and professional fees. The Company estimates that
it spent an additional $500,000 defending this lawsuit. Of the increase in
salaries and wages in 1997, $266,400 is attributable to the grant of shares of
Common Stock to Mr. Steve Scoggins.
25
Interest Expense. Interest expense increased $497,000, or 400%, to $621,000
for the year ended December 31, 1997 from $124,000 for 1996. This increase
resulted from increased borrowings to fund the Company's growth. The Company's
weighted average cost of borrowings increased to 11.6% in 1997 from 9.1% in
1996 due to the Company's higher cost of borrowings on the Sirrom Loan that
was put in place in late 1996.
Provision for (Benefit from) Income Taxes. In 1997, the Company and all its
subsidiaries, except CCT and CICH, which were C corporations, were limited
liability and S corporations. Accordingly, taxable income or loss, for federal
income tax purposes, was reported by the equity holders on their respective
income tax returns. The benefit from income taxes of $594,000 for the year
ended December 31, 1997 represents the $709,000 benefit attributable to CCT's
pre-tax loss for the year ended December 31, 1997, less $115,000 of state
income tax accruals on earnings generated by certain subsidiaries in 1997. The
tax of $515,000 for the year ended December 31, 1996 principally represents
the income tax on the income attributable to the two C corporations, CCT and
CICH.
COMPARISON OF THE YEAR ENDED DECEMBER 31, 1996 TO THE YEAR ENDED DECEMBER 31,
1995
Revenues. Revenues for the year ended December 31, 1996 increased $6.6
million, or 176%, to $10.3 million from $3.7 million for the year ended
December 31, 1995. This growth resulted from the increase in revenues
generated by 69 stores in 1996 as compared to 52 stores in 1995. The Company
consolidated the operations of three stores into other stores in 1996. The
Company's average store revenues from stores open for at least 12 months at
the beginning of each of the following periods was $263,000 (two stores) in
1995 and $258,000 (nine stores) in 1996.
The following table presents, for the periods provided, the amount of
revenues, the number of stores and the average revenues per store for those
stores opened during a given year:
YEAR ENDED DECEMBER 31,
--------------------------------------------------------------
1995 1996
------------------------------ -------------------------------
AVERAGE AVERAGE
NUMBER OF REVENUES NUMBER OF REVENUES
REVENUES STORES PER STORE REVENUES STORES PER STORE
---------- --------- --------- ----------- --------- ---------
1993 Stores.. $ 525,306 2 $262,653 $ 588,792 2 $294,396
1994 Stores.. 1,526,258 7 218,037 1,729,061 7 247,009
1995 Stores.. 1,663,492 43 38,686 6,859,330 43 159,519
1996 Stores.. 968,722 17 56,984
---------- --- -------- ----------- --- --------
Total....... $3,715,056 52 $ 71,443 $10,145,905 69 $147,042
========== === ======== =========== === ========
Store Expenses. Store expenses increased $3.2 million, or 148%, to $5.3
million for the year ended December 31, 1996 from $2.1 million for the year
ended December 31, 1995. The following table sets forth a line item comparison
of store expenses for the year ended December 31, 1996 to the year ended
December 31, 1995:
YEAR ENDED DECEMBER 31,
-----------------------
1995 1996
----------- -----------
Salaries and benefits............................... $ 783,615 $ 2,374,450
Occupancy costs..................................... 401,322 1,017,438
Advertising......................................... 445,188 503,745
Bad debt expense.................................... 113,931 438,551
Depreciation and amortization....................... 47,514 94,599
Supplies............................................ 82,490 217,731
Small equipment expense............................. 106,826 73,410
Miscellaneous store expenses........................ 156,656 579,254
----------- -----------
Total store expense................................ $ 2,137,542 $ 5,299,178
=========== ===========
26
The increase in store expenses was due primarily to the increased number of
stores in 1996 as compared to 1995. Store expenses as a percent of revenue
decreased to 51.7% for the year ended December 31, 1996 from 57.5% for the
year ended December 31, 1995 primarily as a result of a decrease in the rate
of store openings from 43 in 1995 to 20 in 1996. In addition, advertising as a
percent of revenue decreased to 4.9% for the year ended December 31, 1996 from
12.0% for the year ended December 31, 1995 as a result of management's
decision to curtail its advertising campaign in light of the filing of the
class action lawsuit against CCT. Bad debt expense increased $325,000, or
285%, to $439,000 (4.3% of revenues) for 1996 from $113,931 (3.1% of revenues)
for 1995. The increase in miscellaneous store expenses was primarily
attributable to a $299,000 increase in contract labor, which largely consisted
of security services.
General and Administrative Expenses. General and administrative expenses
increased $1.9 million, or 289%, to $2.6 million for the year ended December
31, 1996 from $661,000 in 1995. The following table provides a line item
comparison of general and administrative expenses for the year ended December
31, 1995 to the year ended December 31, 1996:
YEAR ENDED DECEMBER 31,
-----------------------
1995 1996
-----------------------
Salaries and wages.................................. $ 393,812 $ 1,429,448
Legal and professional expenses..................... 49,222 266,073
Depreciation and amortization....................... 3,582 21,598
Occupancy costs..................................... 37,557 98,421
Other costs......................................... 177,124 757,519
---------- ------------
Total general and administrative expenses.......... $ 661,297 $ 2,573,059
========== ============
The most significant increase in general and administrative expenses was the
result of the increase in salaries and wages, which increased $1.0 million, or
263%, to $1.4 million for the year ended December 31, 1996 from $394,000 in
1995. This increase is the result of the Company's personnel additions to
build the necessary infrastructure to support the Company's growth. The
increase in legal and professional expenses was due largely to the use of
outside professionals to assist in the Company's evaluation of various state
regulations, and initial expenses of $80,000 incurred by CCT in defending
against the class action lawsuit filed against it.
Interest Expense. Interest expense increased $88,000, or 239%, to $124,000
for the year ended December 31, 1996 from $37,000 in 1995. This increase in
interest expense was due to increased borrowings to fund the Company's growth.
Provision for (Benefit from) Income Taxes. The provision for income taxes
increased to $515,000 for the year ended December 31, 1996 from $347,000 for
the year ended December 31, 1995. The effective tax rate, however, decreased
to 23% in 1996 from 39% in 1995 due to the fact that all of the companies
during 1996 elected to become limited liability and subchapter S corporations
except CCT and CICH, which continued to be C corporations, and thus the
taxable income or loss of the Company and its subsidiaries, for federal income
tax purposes, was reported by the equityholders on their respective income tax
returns.
LIQUIDITY AND CAPITAL RESOURCES
The Company's uses of cash are to fund held checks; operating costs such as
payroll, occupancy, general and administrative expenses; start-up expenses of
new stores; initial operating losses of new stores; and investments in capital
equipment primarily for new stores. The Company's sources of cash are funds
generated from operations and borrowings from banks and other lenders.
Cash Flows from Operating Activities. Cash used in operating activities was
$1.7 million for the six months ended June 30, 1998 and $1.4 million for the
six months ended June 30, 1997. The increased use of cash in operating
activities was primarily the result of the increase in held checks and prepaid
expenses offset by the increase in net income and depreciation. Cash provided
by (used in) operating activities for the year
27
ended December 31, 1997 and 1996 was ($3.5 million) and $809,000,
respectively. The decrease in cash flows from operating activities from 1996
to 1997 was primarily the result of a decrease in net income and the increase
in held checks, offset by increases in accounts payable and accrued
liabilities.
Cash Flows from Investing Activities. Cash used in investing activities was
$1.5 million for the six months ended June 30, 1998 and $1.2 million for the
six months ended June 30, 1997. Cash used in investing activities totaled $2.4
million and $652,000 in 1997 and 1996, respectively. Substantially all
investing activities relate to capital expenditures for the Company's store
expansions. The Company expects total budgeted capital expenditures for the
remainder of 1998 to be approximately $1.8 million. These capital expenditures
relate to planned openings of new stores. The actual amount of capital
expenditures will depend in part on the actual number of stores opened.
Cash Flows from Financing Activities. Cash provided from financing
activities was $4.4 million for the six months ended June 30, 1998 and $2.7
million for the six months ended June 30, 1997. The increase was primarily the
result of increased borrowings and decreased repayments of long-term debt and
distributions to shareholders. Cash provided from financing activities totaled
$6.0 million and $527,000 for 1997 and 1996, respectively. The increase
resulted primarily from additional borrowings under long-term debt offset
partially by increased repayment of long-term debt and distributions to
shareholders.
On November 8, 1996, the Company entered into the Sirrom Loan, which allows
the Company to borrow up to $3.5 million until November, 2001. Borrowings
under the Sirrom Loan bear interest at a rate of 14.0% per annum. On June 26,
1998, the Company amended the Sirrom Loan to allow the Company to borrow up to
an additional $3.5 million (in increments of no less than $250,000) until June
2003. The outstanding borrowings under this line were $4.25 million at June
30, 1998.
On June 2, 1997, the Company entered into a credit agreement with
NationsBank (the "Credit Facility") which allows the Company to borrow up to
$11.5 million until October 2000. Borrowings under the Credit Facility bear
interest at LIBOR plus approximately 1.0% and miscellaneous fees (9.0% at June
30, 1998). The outstanding borrowings under the Credit Facility were $9.6
million at June 30, 1998. The availability of credit is determined based on
two times the Company's earnings before interest, taxes, depreciation, and
amortization for the last twelve months. Under the terms of the Credit
Facility, the Company is required to maintain certain financial covenants.
Substantially all assets have been pledged to secure indebtedness under the
Credit Facility.
As of June 30, 1998, the Company had $2.3 million in cash. The net proceeds
from the Offering remaining after deducting (i) underwriting discounts, (ii)
estimated offering expenses, and (iii) the repayment of outstanding
indebtedness are expected to total approximately $ million.
The Company expects to repay all amounts outstanding under the Sirrom Loan
and all amounts to NationsBank under the Credit Facility with the net proceeds
of the Offering.
The Company believes that the proceeds of the Offering, funds to be provided
by operations, and funds available under its existing borrowing arrangements
will be sufficient to meet the Company's anticipated needs for working capital
and store expansions for the next 12 months. The Company's working capital and
store expansion plans beyond the next 12 months may require additional debt
and/or equity financing. The Company's estimate of the time that its funding
sources will be sufficient to meet its current needs is a forward-looking
statement that is subject to risks and uncertainties. Actual results and
working capital needs may differ materially from estimates.
IMPACT OF INFLATION
Inflation has not had a material effect on the Company's results of
operations or financial condition during the past three years and management
does not anticipate that future results will be materially affected by the
levels of inflation.
28
YEAR 2000
The Year 2000 issue is the result of potential problems with computer
systems or any equipment with computer chips that use dates that have been
stored as two digits rather than four (e.g., "98" for 1998). On January 1,
2000, any clock or date recording mechanism, including date sensitive
software, which uses only two digits to represent the year may recognize a
date using "00" as the year 1900 rather than the year 2000. This could result
in system failures or miscalculations causing disruption of operations,
including, among other things, a temporary inability to process transactions,
send invoices or perform similar tasks.
The Company has assessed the Year 2000 issue with respect to the software
used by the Company in providing its services and with respect to its
computerized information and operating systems. Although work is required to
have its accounting software year 2000 compliant, the Company expects to
complete all Year 2000 modifications by early 1999, leaving adequate time to
assess and correct any significant issues that may materialize. Management
does not believe that the costs to resolve the Company's Year 2000 issues will
be material to the Company. This assessment is based on management's best
estimates, which were derived utilizing numerous assumptions of future events.
The Company is also discussing the Year 2000 issue with its significant
suppliers to determine the extent to which the Company is vulnerable to those
third parties' failures to remediate their own Year 2000 issues. The Company
is not yet certain as to the extent to which the computer software and
business systems of its suppliers are Year 2000 compliant. If systems of third
parties on which the Company's systems rely are not timely converted or if
such conversions are incompatible with the Company's systems, or if the
Company fails to timely complete the remaining modifications to its own
systems, the Year 2000 issue could have a material adverse effect on the
Company's business, financial condition and results of operations.
RECENTLY ISSUED ACCOUNTING PRONOUNCEMENTS
In February 1997, the Financial Accounting Standards Board (the "FASB")
issued Statement No. 128, "Earnings Per Share." This statement establishes
standards for computing and presenting earnings per share and is effective for
financial statements issued for periods ending after December 15, 1997. The
Company adopted this statement effective January 1, 1998. This statement
requires restatement (as applicable) of all prior-period earnings per share
data presented.
In February 1997, the FASB issued Statement No, 129, "Disclosure of
Information about Capital Structure." This statement establishes standards for
disclosing information about an entity's capital structure. Management intends
to comply with the disclosure requirements of this statement, which are
effective for periods ending after December 15, 1997. The implementation of
this standard did not affect the Company's financial statements.
In June 1997, the FASB issued Statement No. 130, "Reporting Comprehensive
Income" ("SFAS 130"). This statement requires companies to classify items of
other comprehensive income by their nature in a financial statement and
display the accumulated balance of other comprehensive income separately from
retained earnings and additional paid-in capital in the equity section of a
statement of financial position. SFAS 130 is effective for financial
statements issued for fiscal years beginning after December 15, 1997. The
Company adopted SFAS 130 effective January 1, 1998. All prior periods have
been restated to report and present comprehensive income and its components.
In June 1997, the FASB also issued Statement No. 131, "Disclosure About
Segments of an Enterprise and Related Information" ("SFAS 131"). This
statement establishes additional standards for segment reporting in the
financial statements and is effective for fiscal years beginning after
December 15, 1997. Management believes that SFAS 131 will not affect the
Company's financial statements.
29
BUSINESS
GENERAL
The Company is a specialty financial services company that advances cash to
its customers by cashing their personal checks and agreeing to hold the checks
until they are redeemed by the customers or until a short holding period,
typically less than 17 days, has expired. The Company targets customers who
are currently employed and have an active checking account. To initiate a
relationship with the Company, each customer is required to provide proof of
income, proof of an active personal checking account, proof of residence and a
form of identification. The Company limits the amount of cash that it advances
to customers to $300 per transaction and prohibits customers from having more
than one outstanding transaction with the Company. The Company generally does
not cash checks with a face amount exceeding 50.0% of the net "take-home"
amount of the customer's next paycheck. In exchange for its service, the
Company receives a fee ranging from approximately 11.5% to 18.0% of the face
amount of the check.
The Company's growth strategy is to rapidly open stores in middle income
neighborhoods in high traffic shopping centers with a significant anchor
tenant such as a supermarket or major discount retail store. The Company is
also testing store locations in certain supermarkets, convenience stores and
retail stores. Management targets particular geographic areas for development
and seeks to develop all of the major, and many of the secondary, markets in
that area in a "clustered" fashion that maximizes the effectiveness and
efficiency of store opening processes, recruiting and training functions, and
advertising and promotional efforts. The Company uses intensive employee
training in customer service and targeted local advertising in order to build
brand loyalty and customer awareness and to increase transaction volume.
The Company commenced operations in June 1993 with one store and has
expanded rapidly to a total of 266 stores at June 30, 1998. Revenues have
increased substantially from $78,000 in 1993 to $21.4 million in 1997 and
$21.2 million for the six months ended June 30, 1998. The Company's average
store revenues from stores open for at least 12 months at the beginning of
each of the following periods was $213,000 (two stores) in 1995, $255,000
(nine stores) in 1996, $233,000 (52 stores) in 1997 and $132,000 (63 stores)
for the six months ended June 30, 1998. During the six months ended June 30,
1998, the Company completed 652,000 transactions attributable to 120,000
customers. As of June 30, 1998, the Company had approximately 67,000 held
checks with an aggregate outstanding balance of $15.4 million. The Company
incurred bad debt expense of $1,826 for 1993 (2.3% of revenues), $50,976 for
1994 (5.2% of revenues), $113,931 for 1995 (3.1% of revenues), $438,551 for
1996 (4.3% of revenues), $1.2 million for 1997 (5.6% of revenues) and $1.1
million (5.3% of revenues) for the six months ended June 30, 1998. Charge-
offs, net, for such periods were $2,000 for 1993, $ 39,000 for 1994, $72,000
for 1995, $357,000 for 1996, $1.1 million for 1997 and $1.1 million for the
six months ended June 30, 1998.
During the six months ended June 30, 1998, approximately 93.4% of the
Company's transactions were closed during the holding period or within four
days following the expiration thereof and 6.6% remained open. Of the
transactions closed within such period, approximately (i) 64.1% of the
customers' checks were redeemed with cash and (ii) 24.4% were redeemed and
immediately followed by "same day" transactions with the customer and 11.5%
were extended, depending upon the Company's procedures and applicable state
law. Of the 6.6% of transactions that remained open following the holding
period, as of July 13, 1998, approximately 77.1% were ultimately closed and
12.9% (0.9% of the total transactions) were charged off, and the remaining
10.0% remain outstanding.
The Company emphasizes a professional approach to collections that is
designed to maintain a positive public image. Once a check is delinquent,
store employees contact customers and encourage them to honor their checks.
The Company's practice is to charge off those checks that, as of the fifth day
of each month, have remained in default for a period of at least 30 days.
Following charge off, the customer's account is referred to the Company's
centralized internal collection department, which continues to contact the
customers. In addition to providing an effective means of tracking and
verifying the frequency and amount of the Company's bad debts, the Company's
centralized internal collection procedures serve an important monitoring and
internal audit function.
30
MARKET FOR COMPANY'S SERVICE
Historically, consumers have satisfied their short-term cash needs by
choosing from among the following alternatives: (i) charge cards, credit
cards, home equity lines of credit, and bank overdraft lines of credit, (ii)
unsecured loans from banks and finance companies, (iii) loans from friends and
family members, (iv) payroll advances from employers, (v) title pawn loans or
pawn shop transactions, (vi) sales of personal assets, (vii) overdrawing their
personal bank accounts or (viii) defaulting on obligations.
The Company believes that these traditional alternatives have not adequately
satisfied consumers' needs and that the Company's business has developed in
response to various shortcomings and disadvantages presented by such
alternatives. Specifically, the Company believes that these alternatives are
unattractive to many consumers for the following reasons: (i) consumers may
dislike the complexity, inconvenience, or lead time associated with such
alternatives, (ii) the minimum amount required to be borrowed or the repayment
or other terms may be unsatisfactory in light of the consumers' needs, (iii)
consumers may be ineligible by virtue of credit or other criteria, (iv)
consumers may be unwilling or unable to pay the high costs of NSF and
overdraft fees charged by banks and merchants or (v) consumers may fear the
personal embarrassment that may result from the denial of credit or from
approaching friends and family members for money. Management believes that its
customers prefer the ease, convenience and simplicity of the Company's
service.
The Company's business, unlike that offered by these traditional
alternatives, provides customers with a simple, convenient, confidential means
of quickly obtaining small amounts of short term cash, with a single up-front
fee and payment due generally as of the date of the customers' next paycheck.
In addition, management believes that the Company's customers prefer (i) to
have the ability to redeem their checks rather than having them deposited and
(ii) to pay the one-time flat fee charged by the Company as opposed to the
ongoing finance charges associated with other alternatives. Moreover, because
the Company does not require its customers to provide collateral or to satisfy
traditional credit criteria, the Company believes that it eliminates the
consumer's fear of credit denial. Management further believes that a primary
reason for the growth in its business is the high cost of NSF assessed by both
banks and merchants and the high finance costs charged by financial service
providers for small amounts of short-term cash.
The Company's check cashing service is distinct from the services provided
by traditional check cashers. Traditional check cashers generally operate in
low-income neighborhoods of urban areas, providing a diverse range of consumer
financial products and services primarily consisting of third-party check
cashing, money orders, money transfers, consumer loans, insurance and bill
payments, and in some cases serve as distribution centers for public
assistance benefits and food stamps under government contracts. In contrast,
the Company provides only personal check cashing services to those customers
who can demonstrate that they are earning an income, work or reside in the
area in which the store is located and have an active personal checking
account. The Company generally locates its stores in middle-income
neighborhoods in high traffic shopping centers with a significant anchor
tenant such as a supermarket or a major discount retail store.
GROWTH STRATEGY
The Company intends to continue its rapid growth through continued
implementation of the following strategies:
. Open New Stores. The Company plans to increase revenue and profits
primarily by opening new stores. The Company has grown from two stores in
1993 to 266 as of June 30, 1998 exclusively from internal expansion.
Management believes new store development is currently more economical than
growth through acquisition because of the relatively low cost of opening
new stores as compared to acquiring and integrating existing stores. During
1997 and the first six-months of 1998, under the existing operational
framework, the Company opened 5 to 30 new stores per month, with an average
of 9 new stores per month in 1997 and 15 per month in 1998.
. Enter New Markets and Develop Existing Markets. The Company seeks to
develop its markets in a systematic, progressive fashion. The Company
generally expands into states that, in the opinion of
31
management, have a favorable cash advance regulatory scheme. The Company
analyzes the regulatory environment of each market and reviews demographic
information to determine the numbers and profiles of potential customers.
The Company enters into and develops its targeted markets in a progressive
"clustered" fashion, initially locating a sufficient number of stores in a
given area to realize efficiencies of scale and to maximize the
effectiveness and efficiency of store opening costs, recruiting and
training and advertising and promotional efforts. The Company generally
locates its stores in middle income neighborhoods in high traffic shopping
centers with a significant anchor tenant such as a supermarket or major
discount retail store. Following entry into a new market, the Company opens
additional stores within the area to further develop the cluster and to
capture more of the market area. Generally, the Company continues to expand
within a particular market as long as management believes that market will
provide profitable incremental sales volume.
. Develop Brand Awareness. The Company seeks to establish brand name
awareness of its stores and its service in order to establish long-term
franchise value. The Company operates under the federally registered
service marks Check Into Cash(R), Quick, Easy and Confidential!(R) and Bob
Cash(R) and the logos Check Into Cash and Bob Cash. The Company uses
aggressive advertising campaigns to promote its business in its markets.
The Company also believes that providing fast, personalized and courteous
service in a clean and professional environment promotes the Company's
image and leads to referral business.
. Increase Same Store Revenues. The Company has historically pursued its
growth strategy by rapidly opening clusters of stores in new geographic
markets; however, the Company also believes that there is additional growth
potential in most of its existing markets. The Company expands same store
revenues through advertising and promotional campaigns. Management intends
to increase same store revenues by continuing to emphasize its customer
referral program. For the six months ended June 30, 1998, the Company
attributed approximately 27.2% of the new business that it received to
customer referrals.
. Emphasize a High Standard of Customer Service. Fast, personalized customer
service is critical to the Company's ability to generate repeat and
referral business. The Company emphasizes courteous service and encourages
store employees to recognize and develop good relationships with their
customers. The Company also maintains a toll-free customer service line and
a dedicated Internet e-mail address for customer service inquiries.
Management believes that its service-oriented strategy has been successful
and that a significant percentage of the Company's customers are repeat
customers or referrals from existing customers. This emphasis on customer
service also reinforces the Company's credibility with its customers,
builds customer loyalty and minimizes customer complaints. For the six
months ended June 30, 1998, approximately 89.2% of the Company's
transactions were with repeat customers and the remaining 10.8% of
transactions were with new customers. For the 12 months ended June 30,
1998, the Company's customers completed an average of approximately 12.6
transactions, including "same day" or extended transactions. Management
attributes the Company's success in attracting repeat customers to the
professional manner in which the Company's employees approach each
transaction.
32
STORES
The Company's stores are located in the States of California, Illinois,
Indiana, Iowa, Kentucky, Mississippi, Missouri, North Carolina, Ohio,
Tennessee, Washington and Wisconsin. As of June 30, 1998, the Company had 266
stores. The following table provides a breakdown of (i) the number of stores
located in each state, and
(ii) the percent of revenues attributable to such stores, for each of the
periods presented:
YEARS ENDED DECEMBER 31, SIX MONTHS
------------------------------------------------------------------------------- ENDED
1993 1994 1995 1996 1997 JUNE 30, 1998
--------------- --------------- --------------- --------------- --------------- ---------------
NUMBER PERCENT NUMBER PERCENT NUMBER PERCENT NUMBER PERCENT NUMBER PERCENT NUMBER PERCENT
OF OF TOTAL OF OF TOTAL OF OF TOTAL OF OF TOTAL OF OF TOTAL OF OF TOTAL
STORES REVENUES STORES REVENUES STORES REVENUES STORES REVENUES STORES REVENUES STORES REVENUES
------ -------- ------ -------- ------ -------- ------ -------- ------ -------- ------ --------
Tennessee............ 2 100.0% 9 100.0% 25 84.4% 28 51.9% 29 28.2% 31 15.1%
Kentucky............. 8 3.6 9 12.7 9 11.5 10 6.9
Indiana.............. 18 11.9 23 31.3 25 24.8 26 14.5
Illinois............. 1 0.1 6 3.7 11 9.2 13 9.2
Wisconsin............ 3 0.4 17 7.2 18 7.5
California........... 32 3.0 54 13.5
Iowa................. 11 3.5 11 5.7
North Carolina....... 8 0.4 28 8.3
Ohio................. 34 12.2 38 17.5
Missouri............. 12 0.7
Washington........... 11 1.0
Mississippi.......... 14 0.1
--- ----- --- ----- --- ----- --- ----- --- ----- --- -----
2 100.0% 9 100.0% 52 100.0% 69 100.0% 176 100.0% 266 100.0%
=== ===== === ===== === ===== === ===== === ===== === =====
The Company enters into and develops its targeted markets in a progressive
"clustered" fashion, initially locating a sufficient number of stores in a
given area to maximize the effectiveness and efficiency of store opening
costs, recruiting and training and advertising and promotional efforts. Prior
to entering a market, the Company's development department analyzes the
market's demographic information, applicable laws and regulations, the
proximity of competitors, traffic counts, area population, accessibility and
cost. Management believes that most consumers reside within a five-mile radius
of the store that they visit and that the convenience of a store's location is
extremely important to customers. As a result, management seeks to open each
new store within three miles of the market area that it is intended to serve.
Stores are typically located in shopping centers that contain a large anchor
tenant, usually a supermarket or major discount retail store, and other
compatible tenants such as auto parts retailers, drugstores, convenience
stores and fast food outlets. The surrounding area is typically populated with
a high concentration of middle-income consumers. Following entry into a new
market, the Company opens additional stores within the area to further develop
the cluster and to capture more of the market area.
Once a lease has been signed, the Company begins to prepare the location for
the store opening. The preparation of each leased premises requires
approximately two weeks at a cost of approximately $20,000 per store. The
Company's typical store contains approximately 1,200-1,500 square feet
consisting of a customer waiting area, customer service counter and a small
office. Stores are well lighted and decorated to provide a professional and
comfortable atmosphere. Stores opened during the year ended December 31, 1997
averaged 4.5 months for revenues to increase to a level that equaled operating
expenses. Moreover, for the year ended December 31, 1997, it averaged nine
months for the Company to recapture the initial capital investment and
operating losses incurred during the initial 4.5 month period.
MARKETING
The Company markets its services primarily through radio, television, print,
yellow pages, direct-mail and billboard advertising and the Company's customer
referral program. For the six months ended June 30, 1998, the Company
attributed 27.0% of the new business that it received to customer referrals,
26.0% to direct location signage, 17.0% to radio advertising and 13.0% to
television advertising. The Company's television, radio and
33
direct-mail advertising explains how to use the Company's services and
emphasizes the Company's quality of service, convenience and competitive
rates. The Company provides a credit of up to $20 towards the fee on the
referring customer's next transaction with the Company in exchange for
successfully referring a new customer to the Company. The opening of a cluster
of stores is followed by intensive advertising and promotions in the stores'
area of dominant influence to educate consumers as to the Company's services,
generate brand awareness and develop an initial customer base. Management
believes that, by focusing on opening stores in multiple locations within a
market and targeting advertising efforts towards the stores' area of dominant
influence, the Company increases the effectiveness of its advertising
expenditures.
THE CUSTOMER TRANSACTION
A typical transaction for a new customer begins when that customer needs
short-term cash and visits one of the Company's stores. The customer is
required to produce the following items: (i) a valid driver's license or other
acceptable form of identification, (ii) a copy of his or her most recent bank
statement which must reflect that the customer has a local, open checking
account, which, in the Company's judgment, is active and (iii) his or her most
recent payroll stub or other acceptable proof of income. In addition, each
customer must satisfy two of the following three criteria: reside, work and
bank locally. The customer also completes an information statement, which
requires the customer to supply certain demographic, employment and other
information including addresses and phone numbers at which the customer may be
contacted.
Prior to opening an account for the customer, the employee must search the
records of Tele-Track(R) ("Tele-Track"), a database service that maintains
records of uncured defaults with other Tele-Track subscribers. As of the date
of this Prospectus, approximately 25.0% of the Company's stores access the
Tele-Track service via modem and 75.0% use touchtone telephones followed by
receipt of facsimile responses from Tele-Track. Management believes that,
within six months, all of the Company's stores will access the Tele-Track
system via modem. Upon receipt of a search request from the Company, the
transaction inquiry is simultaneously entered into the Tele-Track database.
The employee then completes a customer approval checklist to ensure that he
has not overlooked any steps or failed to obtain any required information.
Following this approval process, a customer file folder is created and a
computer-generated account number is assigned.
The employee then explains the terms of the transaction to the customer and
asks the customer to execute the check cashing agreement. The agreements,
which are a standard form developed by the Company with counsel, are generated
by the stores' computer systems and customized to comply with state regulatory
requirements. The computer systems require each portion of the agreement to be
completed before the agreement can be printed and a transaction may be
completed. The agreement provides that the customer will deliver a check
payable to the Company, the face amount of which generally is equal to the sum
of (i) the cash advanced and (ii) a prescribed fee, which is calculated
according to guidelines established by the Company for each state in which it
operates. The face amount of the check generally may not exceed 50.0% of the
customer's net "take home" pay for their next paycheck. In exchange for its
receipt of the check, the Company advances cash to the customer and agrees to
hold the check until it is redeemed by the customer or until a short holding
period has expired. The holding period typically extends from the date the
check is cashed to the date of the customer's next paycheck, but generally
does not exceed 17 days.
After a new customer has established a relationship with one of the
Company's stores, the procedures for a subsequent transaction are less
burdensome. Repeat customers are required only to tender a check and execute a
new check cash agreement without being re-approved. The computer located in
each store has a "pop-up" feature that requires store employees to verify and
update the information contained in a customer's file folder every six months
before doing business with that customer again.
SERVICING AND COLLECTIONS
The Company emphasizes a professional approach to collections that is
designed to maintain a positive public image. If on the last day prior to the
expiration of the holding period (the "pickup date") a customer has
34
not redeemed his check, the Company places a courtesy telephone call to the
customer to remind him that his outstanding check will become due the next
day. If the customer fails to redeem his check on the pickup date, the Company
initiates its internal collection procedures the following morning.
The Company first contacts the customer's bank to verify the availability of
funds in the customer's checking account. In the event that the necessary
funds are available, the Company presents the check to the customer's bank and
receives a cashier's check in exchange. If, however, the customer's checking
account does not contain adequate funds, the Company telephones the customer
on a daily basis to remind them of their payment obligation. Employees who
make contact with customers are instructed to politely encourage the customer
to redeem his check and to refrain from threatening or arguing with the
customer.
The Company delivers a notice letter to any customer whose check remains due
for three days and whom the Company has been unable to contact, and, if the
check remains due for five days without contact, an employee of the Company
may make a field call to the customer's residence. Once a check has remained
due for 10 days without contact, the Company sends a certified notice letter
to the customer if a suitable commitment to repay has not been received. The
Company's practice is to charge off those checks that, as of the fifth day of
each month, have remained in default for a period of at least 30 days.
Following charge off, the customer's account is referred to the Company's
centralized internal collection department, which continues to contact the
customers. In addition to reducing the Company's bad debt expense, the
Company's centralized internal collection procedures serve an important
monitoring function, reducing employee theft.
Once a check has been charged off, the customer's account is removed
permanently from the store's eligible customer list and the amount outstanding
is written off as a bad debt. Every store is provided with the identity of the
customer whose check has been charged off and the account is then turned over
to the Company's internal collection department, which continues to attempt to
contact the customer. Members of the Company's internal collection department
apply the same professional approach to collection as the store employees,
and, in addition, are authorized to develop payment plans to assist customers
in honoring their debt. The Company does not presently employ an outside
collection agency.
ORGANIZATIONAL STRUCTURE AND PROCEDURES
The Company's 266 stores are organized into three divisions. A divisional
vice president directs five to seven regional managers who are in turn
responsible for 10 to 15 stores each. Divisional vice presidents are
experienced executives who report directly to the President. Regional managers
reside in the regions that they supervise and monitor individual store
performance on a daily basis. Each store is typically staffed with a manager
and either an assistant manager or a customer service representative (a
"CSR"). Individual store managers are responsible for customer relations,
development of new accounts, cash entries, staffing and training and
collections. Management at the Company's corporate offices directs and
coordinates planning and controls, advertising and marketing, employee
training and personnel matters. Operations personnel at the Company's
corporate offices evaluate the performance of each store using on-site reviews
and daily reports on operations.
The Company distributes to all its employees written procedures and policies
covering all aspects of store-level operations. These policies and procedures
have been established to minimize the operating risks inherent in the cash
advance business and to maintain uniformity in operations on a national basis.
Management is also committed to providing its employees formal, supervised
training. CSRs and store managers must complete formal training programs
conducted by the Company. Training of new hires is conducted at the largest
office in each region by corporate trained personnel. New CSRs typically
receive four days of initial orientation followed by two weeks of supervised
on-the-job training. A key objective of this training program is to teach new
employees how to identify risks associated with cashing customer checks and
the steps that can be taken to reduce these risks. Store managers are trained
at one of the Company's stores for approximately two or three weeks prior to
assignment to their store. After such assignment, the store managers are
closely monitored on a daily basis for two to three months.
35
The Company has structured its compensation arrangements to provide
divisional, regional and store-level manager's with an incentive to increase
store revenue and profits. Store managers receive a monthly commission based
on their store's performance as measured by: (i) growth in numbers of held
checks, (ii) delinquencies rates and (iii) losses. Division and regional
managers receive commissions based on the performance of the group of stores
for which they are responsible.
All store cash is deposited at the end of the business day with that store's
bank. The deposit is reconciled against the transactions performed at each
store by the Company's centralized accounting department on a daily basis. In
addition, the Company's regional managers perform periodic internal audits and
the Company employs two full-time auditors who perform cash audits on a random
basis. The Company has also implemented various programs and systems
(including alarms and security cameras) to reduce the risk of third party
theft and to provide security for its facilities and employees. The Company
also maintains insurance coverage for theft.
MANAGEMENT INFORMATION SYSTEMS
The Company employs a number of information systems and internal reporting
processes to monitor the daily operations of each store and to gather
information relating to its customers. These systems provide management with
daily, weekly, monthly or year-to-date reports detailing key operational
statistics for all stores. These systems have enabled the Company to expand
its operations while maintaining a high degree of control over revenues,
expenses and customer transactions. The Company believes that the following
reporting procedures provide a significant competitive advantage over small
local cash advance providers.
At the end of each business day, each store manager completes and delivers
to the appropriate regional manager (i) a report summarizing the store's
transaction history for that day, the amount of checks held and present cash
position, and (ii) a past due report detailing the status of payments and any
collection efforts that have been made with respect to each customer account
that is overdue. In addition, the store manager faxes to the Company's
accounting department copies of any deposit slips, together with an exception
report that explains any difference between the deposit slips and the amount
of cash that should have been received and deposited. Divisional vice
presidents and senior executives review group summaries, and exceptions to
Company standards are addressed each day.
On a weekly basis, store managers complete and deliver to the appropriate
regional manager a held check summary, time sheets completed by each employee
and a past due report summary. On a monthly basis, store managers mail to the
appropriate regional manager all mileage and expense reports and copies of any
correspondence with customers. On a monthly basis, store managers also mail
any charge off requests to the collection supervisor at the Company's
corporate offices.
The Company equips each of its stores with an on-site computer. Employees
create a customer account for each customer and record each transaction that
is consummated as well as each collection action that is taken. Each night all
newly entered information in each store's computer is downloaded to the
central computer at the Company's corporate office. The data maintained by the
store computers and the central computer are regularly backed-up. The Company
uses the central computer's records to verify the written reports regularly
delivered by the store managers. In addition, these records are used by the
Company's internal auditors who regularly visit each store to ensure that
there are no discrepancies between the records maintained at each store and
those maintained on the central computer system.
The Company presently has no plans to upgrade or replace its central
computer system or any of the computers at its store locations, and management
believes that the Company's central computer will adequately handle up to
1,000 stores without modification or upgrade.
COMPETITION
The cash advance industry is highly fragmented and highly competitive, and
there is significant competition within each of the markets in which the
Company operates. Competition within the industry is based primarily
36
on store location, convenience and customer service. Most of the Company's
competitors are small, owner-operated stores that operate in a limited
geographic area. Management believes that most store owners operate fewer than
20 stores. Management believes that, in many cases, these stores are operated
by individuals who lack the capital resources and marketing expertise to
expand their business, increase their profitability and compete effectively
with larger operations.
The Company believes that larger companies are able to operate more
efficiently and provide a higher level of customer service than smaller
companies. Management believes that these competitive advantages are the
result of greater managerial and financial resources as well as economies of
scale related to systems and marketing expenses. Management believes that
these factors present an opportunity for well-capitalized operators to open
additional businesses and create a high level of brand recognition and
customer loyalty. In this regard, the Company faces competition from at least
three large privately held check cashing chains. In addition, several large
chains of traditional check cashing outlets are moving into cash advance
services.
In addition to other cash advance stores, the Company competes with banks,
credit card issuers, pawn shops, title pawn establishments and other financial
service entities and retail business that provide short-term loans. The
Company could face additional competition as an increasing number of
traditional check cashers, pawn shops, commercial banks and other retail
outlets add cash advance services to their financial product portfolios.
GOVERNMENT REGULATION
The Company is regulated in each state in which it operates as (i) a
consumer lender, (ii) a provider of deferred deposit services or (iii) a
lender or deferred depositor, as authorized pursuant to a check cashing
statute. In each state, the Company is licensed and regularly audited by a
state supervisory agency. In addition, the Company is required to comply with
certain federal regulations governing consumer protection and lending
practices.
State Small Loan Laws. In the states of Illinois, Indiana, Missouri,
Washington and Wisconsin, the Company is licensed as a consumer lender. In
these states the Company completed a licensing application process before
doing business. The license is issued by the agency having general supervisory
authority over financial institutions in the state. A separate license is
required for each location. The Company is required to maintain its records
for a designated period of time and to submit to regular audits by the state
regulatory agency. These statutes generally establish a schedule of allowable
fees that the Company may charge its customers and limit the size and number
of loans that the Company may have with any one customer at any given time. In
addition, these statutes require that the Company provide its customers with
certain contractual disclosures explaining various aspects of their loan, such
as principal, fees, annual percentage rate ("APR") and due dates. Finally,
these statutes regulate the nature of the Company's advertising.
State Deferred Deposit Laws. In Iowa, Kentucky, South Carolina and
Tennessee, the Company is licensed as a provider of delayed, or deferred
deposit, or presentment services. In these deferred deposit states the Company
is authorized to accept, or cash, checks and hold them for a designated period
of time within which the customer may redeem the check or the Company may
deposit it for payment by the customer's bank. In these states, the Company is
also required to be licensed by the state agency having general supervisory
authority over financial institutions. The Company is required to complete a
formal application process prior to receiving its license, which includes the
provision for a minimum capital requirement for each location. A separate
license is required for each location. The Company is also required to
maintain its records for a designated period of time and to submit to regular
audits by the state regulatory agency. The applicable state statutes generally
establish a schedule of allowable fees that the Company may charge its
customers and limit the size and number of transactions that the Company may
have with any one customer at any given time.
37
In addition, the Company is required to provide its customers with certain
contractual disclosures explaining various aspects of the transaction, such as
cash advanced, the fee for deferring deposit of the customer's check and such
fee expressed as an APR. These statutes also prohibit the Company from
enforcing its transactions with its customers by use of the state's criminal
bad check laws.
State Check Cashing Laws. In California, Mississippi and North Carolina the
Company is regulated as a check casher. In these states the Company is
authorized to defer the deposit of personal checks that it cashes, or accepts,
for a designated fee. These statutes require the Company to be licensed by the
agency charged with the general supervisory authority over financial
institutions. In each check cashing state, the Company is required to complete
a formal application process prior to receiving its license to cash checks. In
each check cashing state, the Company is required to maintain its records for
a designated period of time and to submit to regular audits by the state
regulatory agency. The size and number of transactions that the Company can
have outstanding with any one customer is limited and the Company must provide
its customers with contractual disclosures explaining various aspects of its
transaction, such as the amount of cash advanced, fee for the advance and that
fee expressed as an APR. In Ohio the Company is also regulated as a check
casher, but its transaction is authorized as a check cashing loan. As such,
the Company must also apply for an additional endorsement allowing it to
engage in the business of check cashing loans.
Federal Regulation. The Company's loan activities are subject to certain
federal regulation, including the Truth-in-Lending Act ("TILA"), the Equal
Credit Opportunity Act ("ECOA"), the Fair Credit Reporting Act ("FCRA") and
the regulations promulgated for each. In addition, some of the check cashing
and deferred deposit statutes require that TILA disclosures be given to
customers. These laws require that Company to provide disclosure of the
principal terms of each transaction to every customer, prohibit misleading
advertising, protect against discriminatory lending practices and proscribe
unfair credit practices. TILA and Regulation Z promulgated thereunder require,
among other things, disclosure of pertinent elements of consumer credit
transactions, including the dollar amount of the finance charge and that
charge expressed in terms of an APR. The ECOA prohibits creditors from
discriminating against loan applicants on the basis of race, sex, age or
marital status. Pursuant to Regulation B promulgated under the ECOA, creditors
are required to make certain disclosures regarding consumer rights and advise
consumers whose credit applications are not approved of the reasons for the
rejection. The FCRA requires the Company to provide certain information to
consumers whose credit applications are not approved on the basis of a report
obtained from a consumer reporting agency.
EMPLOYEES
As of June 30, 1998, the Company had approximately 575 employees, including
72 corporate and general administrative employees, three divisional vice
presidents, three divisional directors, 24 regional directors and 266 store
managers. None of the Company's employees are covered by a collective
bargaining agreement nor has the Company ever experienced a work stoppage. The
Company believes that its relationship with employees is satisfactory.
PROPERTIES
The Company's corporate headquarters consist of 13,800 square feet that the
Company leases at four locations in Cleveland, Tennessee for an aggregate of
$6,546 per month. The leases for the four locations expire in December 2006,
December 2005, March 2001, and May 1999. The Company presently intends to
renew these leases upon their expiration. The Company intends to expand its
headquarters in the future to support additional growth.
The Company leases all of its store locations, typically for a term of three
to five years. Each store generally consists of 1,200 to 1,500 square feet at
an average monthly lease rate of $1,234. The 266 store leases expire at
various times through the year 2003, of which 43 will expire on or before June
30, 1999. Most of the store leases contain renewal options for additional
periods at rental rates adjusted according to agreed upon formulas.
38
LEGAL PROCEEDINGS
On March 4, 1996, a class action lawsuit was filed in the Circuit Court for
Bradley County, Tennessee against a wholly-owned subsidiary of the Company,
and W. Allan Jones, Jr., the Company's Chief Executive Officer, individually.
This lawsuit, which alleged common law fraud as well as violations of TILA,
the Tennessee usury statute, and the Tennessee Consumer Protection Act, sought
injunctive relief and money damages. Although the Company believes this
lawsuit was without merit, on September 19, 1997, the Company entered into a
settlement agreement in order to allow management to focus its resources on
the Company's operations. On January 21, 1998, the Court approved the
settlement and entered an order of Final Judgment and Dismissal. The
settlement agreement established a settlement fund of $1,380,000 for the
benefit of class members, $23,000 for notice administration and $598,000 for
the attorneys representing the class. On June 2, 1998, the court ordered
settlement notices to be sent to an additional 5,939 class members, granted
preliminary approval of an additional $166,000 to be included in the
settlement fund, authorized an additional $33,000 of attorney fees to class
counsel, ordered that claim forms be sent to all class members and scheduled a
hearing on August 6, 1998 to consider any objections to the settlement that
might be filed by any of the additional 5,939 class members. On July 9, 1998,
representative plaintiffs filed a motion alleging that the Company collected
and continues to collect money from class members for transactions which
occurred prior to October 1, 1997, and that such collections violate the
judgement and orders of the Court. The Company does not believe that the
motion will result in a material liability to the Company and intends to
vigorously defend against it.
On April 28, 1998, a class action lawsuit was filed against Check Into Cash
of Kentucky, LLC, a wholly-owned subsidiary of the Company ("CIC of Kentucky")
and W. Allan Jones, Jr., individually, in the United States District Court of
Eastern Kentucky. The lawsuit claims violations of TILA, violation of the
Kentucky Disclosure of Finance Charge on Installment Credit Transaction Act,
violation of the Kentucky usury statute, violation of the Kentucky Consumers
Loans Act, violation of the Kentucky Consumer Protection Act and violation of
the RICO Act. CIC of Kentucky and Mr. Jones have moved the Court to dismiss
all counts for failure to state a claim and for lack of personal jurisdiction
over Mr. Jones. CIC of Kentucky has asserted its licensure under the Kentucky
Check Cashing Act as a complete defense. The Company believes this lawsuit to
be without merit and intends to vigorously defend against it.
On June 1, 1998 an adversary proceeding was filed against CIC of Kentucky in
the Bankruptcy Court for the Eastern District of Kentucky alleging that its
licensed check cashing transaction with a debtor violated the Kentucky usury
statute and that agents of CIC of Kentucky violated the automatic stay
provisions of 11 U.S.C. (S) 362 by contacting the debtor via phone after she
had filed for bankruptcy and attempted to coerce the debtor to pay. The
Company believes this adversary proceeding to be without merit and intends to
vigorously defend against it.
In addition, the Company is from time to time involved in other litigation
incidental to the conduct of its business, none of which the Company believes
to be material.
39
MANAGEMENT
DIRECTORS AND EXECUTIVE OFFICERS OF THE COMPANY
The executive officers and directors of the Company and their ages as of
July 29, 1998, are as follows:
NAME AGE POSITION
---- --- --------
W. Allan Jones, Jr...... 45 Chairman of the Board, Chief Executive Officer and Director
Steve M. Scoggins....... 37 President, Chief Operating Officer and Director
J. Samuel Choate, Jr.... 50 Executive Vice President and General Counsel
Frederick Krosner....... 62 Executive Vice President, Treasurer, Controller and Director
Henry E. Ryan........... 37 Vice President--Development
W. ALLAN JONES, JR. has been Chairman of the Board and Chief Executive
Officer of the Company since December 1996. Mr. Jones also served as President
of the Company from 1993 through July 1997. Mr. Jones has served as Chairman,
President and Chief Executive Officer of Credit Bureau Services, Inc. and
affiliated companies since 1976. He served on the Board of Directors of
Interfed Savings Bank, a publicly traded bank located in Chattanooga,
Tennessee from 1990 to 1992.
STEVE M. SCOGGINS has been the President and Chief Operating Officer of the
Company since July 1997 and a Director of the Company since December 1996.
Prior to that appointment, Mr. Scoggins served in a number of senior
management positions with the Company since January 1994, including Resource
Development Director, Senior Vice President of Operations and Executive Vice
President of New Business Development. Prior to joining the Company, Mr.
Scoggins was the Vice President of Human Resources and the Director of
Training for McKenzie Development Corporation, a rental purchase company
located in Cleveland, Tennessee.
J. SAMUEL CHOATE, JR. has been Executive Vice President and General Counsel
of the Company since April 1998. Prior to joining the Company, Mr. Choate was
the principal of Choate & Associates, P.C., a private law firm based in
Alexandria, Virginia.
FREDERICK KROSNER has served as the Executive Vice President, Treasurer and
Controller of the Company since May 1998 and has been a Director of the
Company since December 1994. From December 1994 to May 1998, Mr. Krosner
served in a number of senior management positions with the Company. From 1991
to 1994, Mr. Krosner was the President of First Thermal Systems, a
manufacturer of industrial furnaces that filed for bankruptcy in 1994 and was
subsequently liquidated. Mr. Krosner is a Certified Public Accountant.
HENRY E. RYAN has been Vice President--Development of the Company since
November 1996. Prior to that appointment, Mr. Ryan served in a number of
management positions with the Company since July 1995. Prior to joining the
Company, Mr. Ryan was a Regional Development Director of Studio Plus, Inc., an
extended stay hotel company located in Lexington, Kentucky.
BOARD OF DIRECTORS
The Company's Board of Directors (the "Board") currently consists of three
members who will serve a term expiring at the Company's 1999 annual meeting of
stockholders. The Company intends to add two directors who are not executive
officers of the Company (the "Outside Directors") within 90 days after listing
on the Nasdaq National Market. It will be necessary for the Company to appoint
these Outside Directors within the 90-day period to maintain its Nasdaq
National Market listing. Failure to appoint such Outside Directors could
result in delisting of the Common Stock from the Nasdaq National Market.
The Company's Certificate provides that the Board of Directors shall consist
of three classes of directors serving for staggered terms, beginning with the
1999 annual meeting of stockholders. The Board of Directors will be divided as
equally as possible into Classes I, II and III, with the directors elected to
such classes at the 1999 annual meeting of stockholders serving initial terms
of one, two and three years, respectively. Upon the expiration of such terms,
all classes of directors will be elected to serve three-year terms.
40
COMPENSATION OF DIRECTORS
Prior to the completion of the Offering, each director received a fee of
$400 for each quarterly meeting attended in person. Following the completion
of the Offering, the Company intends to pay each director who is not an
employee of the Company fees of $400 and $200 for each meeting and committee
meeting attended in person, respectively. Directors are reimbursed for their
out-of-pocket expenses incurred in connection with their service on the Board
of Directors. In addition, following the completion of the Offering, under the
Incentive Plan, directors may receive discretionary grants of options to
purchase shares of Common Stock. See "--Incentive Plan."
COMMITTEES OF THE BOARD
Upon consummation of the Offering, the Board of Directors will establish a
Compensation Committee and an Audit Committee. The Compensation Committee will
consist of at least two directors who are "disinterested persons" within the
meaning of Rule 16b-3, as amended from time to time, under the Exchange Act
and "outside directors" within the meaning of Section 162(m) of the Internal
Revenue Code of 1986, as amended (the "Code"), and will have the authority to
determine compensation for the Company's executive officers and to administer
the Incentive Plan. The Audit Committee will consist of at least two "outside
directors" (as defined above) and will have the authority to review with the
Company's independent accountants their audit plan, the scope and results of
their audit engagement and the accompanying management letter, if any, review
the scope and results of the Company's internal auditing procedures, consult
with the independent accountants and management with regard to the Company's
accounting methods and the adequacy of its internal accounting controls,
approve professional services provided by the independent accountants, review
the independence of the independent accountants, and review the range of the
independent accountants' audit and non-audit fees.
41
EXECUTIVE COMPENSATION
Summary Compensation
The following table summarizes the compensation paid or accrued by the
Company for services rendered by the Company's Chief Executive Officer and the
Company's other executive officers whose total salary and bonus for 1997
exceeded $100,000 (collectively, the "Named Executive Officers").
SUMMARY COMPENSATION TABLE
ANNUAL COMPENSATION
----------------------------------
OTHER ANNUAL ALL OTHER
NAME AND PRINCIPAL SALARY BONUS COMPENSATION(1) COMPENSATION(2)
POSITION YEAR ($) ($) ($) ($)
------------------ ---- ------- ------- --------------- ---------------
W. Allan Jones, Jr. .... 1997 150,000 134,005(3) 588,000(4) 1,200
Chairman of the Board,
Chief Executive Officer
and Director
Steve M. Scoggins....... 1997 94,367 76,095(3) 346,320(5) 4,697
President, Chief
Operating Officer and
Director
Frederick Krosner....... 1997 156,154 -- -- 4,685
Executive Vice Presi-
dent,
Treasurer, Controller
and Director
- --------
(1) Excludes perquisites and other personal benefits which for each Named
Executive Officer did not exceed the lesser of $50,000 or 10.0% of such
individual's salary plus annual bonus.
(2) Represents contributions by the Company under its 401(k) Plan on behalf of
the Named Executive Officers.
(3) Includes $26,095 of personal property.
(4) Reflects a reimbursement by the Company of $588,000 for the payment of Mr.
Jones' taxes.
(5) Reflects a reimbursement by the Company of $79,920 for the payment of Mr.
Scoggins' taxes, which is represented by an account receivable from Mr.
Scoggins, one-third of which will be forgiven by the Company each year
beginning in 1998, subject to Mr. Scoggins' continuing employment. Also
reflects a grant by the Company of 179,760 shares of unrestricted Common
Stock to Mr. Scoggins on August 1, 1997, valued at $177,600, or $0.99 per
share (based upon an independent third party evaluation, as of such date)
and a grant by the Company of 89,880 shares of restricted Common Stock to
Mr. Scoggins on January 10, 1997, valued at $88,800, or $0.99 per share
(based upon such independent third party evaluation), the restrictions
with respect to which lapsed on July 31, 1997, pursuant to Mr. Scoggins'
Employment Agreement.
Stock Options
The Named Executive Officers were not granted, and did not exercise, any
stock options or stock appreciation rights during 1997, and no such options or
rights were held by the Named Executive Officers at December 31, 1997. See
Note 7 to the Company's Consolidated Financial Statements.
42
COMPENSATION COMMITTEE INTERLOCKS AND INSIDER PARTICIPATION
As of the date of this Prospectus, the Board of Directors has not appointed
a Compensation Committee or a committee performing similar functions. W. Allan
Jones, Jr., Steve M. Scoggins and Frederick K. Krosner participated in
deliberations of the Company's Board of Directors concerning executive
compensation during 1997. Neither Messrs. Jones, Scoggins, or Krosner, nor any
other executive officer of the Company, serves as a member of a board of
directors or compensation committee of any entity that has one or more
executive officers serving as a member of the Board of Directors.
EMPLOYMENT AGREEMENTS
The Company entered into employment agreements with Steve M. Scoggins on
July 31, 1997 and with J. Samuel Choate, Jr. on April 28, 1998. Each
employment agreement has a term of three years, with an automatic annual
renewal, which may be terminated by either party to such agreement at any
time. The employment agreements provide for minimum annual salaries to Messrs.
Scoggins and Choate of $150,000 and $325,000, respectively. In addition, Mr.
Scoggins' agreement provides for (i) the lapse of all contractual restrictions
on the 89,880 shares of restricted Common Stock granted to Mr. Scoggins
pursuant to a Restricted Stock Agreement with the Company, dated as of January
10, 1997, (ii) a grant to Mr. Scoggins of an additional 179,760 shares of
unrestricted Common Stock, and (iii) the payment of an automobile allowance
and country club dues. Mr. Choate's agreement provides for (i) the use of an
automobile, (ii) the grant to Mr. Choate of options to purchase 251,686 shares
of Common Stock at $7.88 per share, vesting at varying amounts over a four-
year period, and (iii) the payment of certain insurance premiums, country club
dues, professional licensing expenses, moving expenses, and certain expenses
in connection with the winding up of the affairs of Choate & Associates, P.C.
The Company may terminate either employment agreement at any time. Each
employment agreement provides that upon its termination by the executive for
"good reason" or by the Company other than for cause, death, disability or
retirement, the executive shall receive all accrued obligations that remain
unpaid plus an amount equal to one year's base salary, in the case of Mr.
Scoggins, or up to two full years' base salary, in the case of Mr. Choate.
Additionally, each employment agreement provides that upon such termination,
the executive is entitled to continue to participate in the Company's benefit
plans for one year and to receive certain other benefits. If the termination
is by the Company for cause, death, or disability or by the executive for
other than "good reason," the executive will be entitled only to receive
payment of his accrued obligations and certain other benefits; provided that
upon Mr. Choate's death, disability, or retirement, the option granted
pursuant to his employment agreement shall vest and, in the event the Common
Stock is not then freely tradeable, he shall have the right to require the
Company to repurchase some or all of the option shares at their fair market
value. Similarly, in the event Mr. Scoggins' employment agreement is
terminated by reason of his death and the Common Stock is not then freely
tradeable, Mr. Scoggins' estate shall have the right to require the Company to
purchase some or all shares then owned by Mr. Scoggins.
The Company entered into employment agreements with Henry E. Ryan on August
1, 1997 and with Frederick Krosner on May 1, 1998. Employment under each
agreement is at will and may be terminated by either party at any time. The
agreements provide for minimum annual salaries to Messrs. Ryan and Krosner of
$60,000 and $170,000, respectively. In addition, Mr. Ryan's agreement provides
that in the event the Company terminates such agreement for any reason, he
shall be entitled to receive an amount equal to the greater of $30,000 or six
months' base salary as severance pay. Mr. Krosner's agreement similarly
provides for severance pay in an amount equal to one year's base salary. The
agreements also provide for the grant to Messrs. Ryan and Krosner of options
to purchase 55,359 and 57,299 shares of Common Stock at $1.81 and $7.88,
respectively.
Each of the agreements between the Company and Messrs. Scoggins, Choate,
Ryan, and Krosner prohibit, for certain periods of time following the
termination of his employment, the executive's disclosure and use of
confidential information, his solicitation of certain employees of the
Company, and his competition with the Company within a certain geographic
area.
43
INCENTIVE PLAN
The Check Into Cash, Inc. Amended and Restated 1997 Long-Term Incentive Plan
was adopted by the Board of Directors of the Company on May 1, 1998 and was
approved by the Company's stockholders on that date. A summary of the
Incentive Plan is set forth below. The summary is qualified in its entirety by
reference to the full text of the Incentive Plan.
General. The purpose of the Incentive Plan is to promote the success and
enhance the value of the Company by linking the personal interests of
employees, officers, consultants and directors to those of the stockholders,
and by providing such persons with an incentive for outstanding performance.
As of June 30, 1998, there were approximately 575 persons eligible to
participate in the Incentive Plan.
The Incentive Plan authorizes the granting of awards ("Awards") to key
employees, officers, consultants and directors of the Company or its
subsidiaries in the following forms: (i) options to purchase shares of Common
Stock ("Options"), which may be incentive stock options or non-qualified, (ii)
stock appreciation rights ("SARs"); (iii) performance shares ("Performance
Shares"); (iv) restricted stock ("Restricted Stock"); and (v) other stock-
based awards.
Subject to adjustment as provided in the Incentive Plan, the aggregate
number of shares of Common Stock reserved and available for Awards or which
may be used to provide a basis of measurement for or to determine the value of
an Award (such as with a SAR or Performance Share) is 561,750. The maximum
number of shares of Common Stock with respect to one or more Options and/or
SARs that may be granted during any one calendar year under the Incentive Plan
to any one participant is 394,500. The maximum fair market value of any Awards
(other than Options and SARs) that may be received by a participant (less any
consideration paid by the participant for such Award) during any one calendar
year under the Incentive Plan is $500,000.
Administration. The Incentive Plan will be administered by the Compensation
Committee of the Board of Directors of the Company (the "Committee"). The
Committee has the power, authority and discretion to: (i) designate
participants; (ii) determine the type or types of Awards to be granted to each
participant and the terms and conditions thereof; (iii) establish, adopt or
revise any rules and regulations as it may deem necessary or advisable to
administer the Incentive Plan; and (iv) make all other decisions and
determinations that may be required under the Incentive Plan, or that the
Committee deems necessary or advisable.
Awards. The Committee may determine that any Award will be determined solely
on the basis of (i) the achievement by the Company or a Parent or Subsidiary
of a specified target return, or target growth in return, on equity or assets,
(ii) the Company's, Parent's or Subsidiary's stock price, (iii) the
achievement by the Company, Parent or Subsidiary or a business unit of the
Company of a specified target, or target growth in, revenues, operating
income, net income or earnings per share, or (iv) any combination of the goals
set forth in (i) through (iii) above. Furthermore, the Committee reserves the
right for any reason to reduce (but not increase) any Award, notwithstanding
the achievement of a specified goal. If an Award is made on such basis, the
Committee must establish goals prior to the beginning of the period for which
such performance goal relates (or such later date as may be permitted under
Section 162(m) of the Code or the regulations thereunder). Any payment of an
Award granted with performance goals will be conditioned on the written
certification of the Committee in each case that the performance goals and any
other material conditions were satisfied.
No unexercised or restricted Award will be assignable or transferable by a
participant other than by will or the laws of descent and distribution or,
except in the case of an incentive stock option, pursuant to a qualifying
domestic relations order; provided, however, that the Committee may (but need
not) permit other transfers where the Committee concludes that such
transferability (i) does not result in accelerated taxation, (ii) does not
cause any Option intended to be an incentive stock option to fail to be
described in Code Section 422(b), and (iii) is otherwise appropriate and
desirable, taking into account any factors deemed relevant, including without
limitation, any state or federal tax or securities laws or regulations
applicable to transferable Awards. A participant may, in the manner determined
by the Committee, designate a beneficiary to exercise the rights of the
participant and to receive any distribution with respect to any Award upon the
participant's death.
44
Upon the participant's death or disability during his or her employment or
his or her service as a director, all outstanding Options, SARs, and other
Awards in the nature of rights that may be exercised will become fully
exercisable and all restrictions on outstanding Awards will lapse. Any Options
or SARs or other Awards will thereafter continue or lapse in accordance with
the other provisions of the Incentive Plan and the Award Agreement. In the
event of a Change in Control of the Company (as defined in the Incentive
Plan), all outstanding Options, SARs, and other Awards in the nature of rights
that may be exercised will become fully vested and all restrictions on all
outstanding Awards will lapse. In the event of the occurrence of any
circumstance, transaction or event not constituting a Change in Control as
defined in the Incentive Plan but which the Board of Directors deems to be, or
to be reasonably likely to lead to, an effective change in control of the
Company, the Committee may in its sole discretion declare all outstanding
Options, SARs, and other Awards in the nature of rights that may be exercised
to become fully vested, and/or all restrictions on all outstanding Awards to
lapse, in each case as of such date as the Committee may, in its sole
discretion, declare, which may be on or before the consummation of such
transaction or event.
Termination and Amendment. The Board or the Committee may terminate, amend
or modify the Incentive Plan without stockholder approval; provided, however,
that the Board or the Committee may condition any amendment on the approval of
stockholders of the Company if such approval is necessary or deemed advisable
with respect to tax, securities or other applicable laws, policies or
regulations. No termination, amendment, or modification of the Incentive Plan
may adversely affect any Award previously granted under the Incentive Plan,
without the consent of the participant.
Benefits to Named Executive Officers and Others. As of June 30, 1998,
364,344 stock options had been granted or approved for grant under the
Incentive Plan. Any additional future Awards will be made at the discretion of
the Committee. Therefore, it is not presently possible to determine the number
or terms of Awards to be made in the future.
Section 162(m). The Omnibus Budget Reconciliation Act of 1993 added Section
162(m) to the Internal Revenue Code of 1986, as amended. Section 162(m)
generally disallows a public company's tax deduction for compensation to the
chief executive officer and four other most highly compensated executive
officers in excess of $1.0 million in any tax year beginning on or after
January 1, 1994. Compensation that qualifies as "performance-based
compensation" is excluded from the $1 million deductibility cap, and therefore
remains fully deductible by the company that pays it. The Company intends that
options granted with an exercise price at least equal to 100.0% of fair market
value of the underlying stock at the date of grant will qualify as such
"performance-based compensation," although other awards under the Incentive
Plan may not so qualify.
45
401(K) PLAN
The Company sponsors a defined contribution plan (the "401(k) Plan") for
eligible employees of the Company under Section 401(k) of the Code.
Participants may contribute up to 15.0% of their annual salaries to the 401(k)
Plan, subject to certain limitations. All contributions made by an employee
are fully vested and are not subject to forfeiture. The Company may make
discretionary matching contributions to the 401(k) Plan on behalf of all
eligible employees. During the fiscal year ended December 31, 1997, the
Company made matching contributions equal to 50.0% of the eligible
contribution made by each employee to the 401(k) Plan.
CERTAIN TRANSACTIONS
The Company leases an aircraft from Jones Airways, LLC ("Jones Airways").
Jones Airways is wholly- owned by W. Allan Jones, Jr. and his wife. The terms
of the lease dated November 14, 1997, call for a monthly fee of $30,000 plus
$750 per flight hour in excess of 30 hours per month, plus certain operating
costs. Prior to entering the November 14, 1997 lease, the Company leased an
aircraft from Jones Airways pursuant to a lease dated May 2, 1997, for $500
per hour for each hour of use by the Company, plus certain fees. This lease
was terminated and succeeded by the November 14, 1997 lease. Fees paid in 1996
and 1997 and for the six months ended June 30, 1998 were $232,000, $295,000
and $511,000, respectively. The Company believes that the terms of the lease
are as favorable as could be obtained from unaffiliated third parties on an
arm's length basis.
During 1995, 1996 and 1997, the Company loaned amounts to Mr. Jones and
various entities owned by Mr. Jones and his wife pursuant to several
promissory notes (the "Jones Notes"). The Jones Notes permit the borrowers
thereunder to borrow up to an aggregate of $1.3 million from the Company and
each note bears interest at 9.0% per annum. As of June 30, 1998, the aggregate
principal amount outstanding under the Jones Notes was $782,000 and aggregate
accrued interest equaled $26,000. Mr. Jones intends to repay all amounts owed
to the Company under the Jones Notes prior to the commencement of the
Offering.
On August 15, 1996 the Company and Credit Adjustment Bureau, Inc. ("CAB")
entered into a promissory note pursuant to which the Company agreed to loan up
to $132,000 to CAB. Allan Jones owned 49.0% of CAB. The note bore interest at
9.0% per annum. CAB borrowed an aggregate of $132,000 under the note. On
November 1, 1997 CAB was dissolved and all principal and interest on the note
was simultaneously written off by the Company.
On January 1, 1997, Mr. Jones and his wife contributed all of their equity
interests in CCT, Creditcorp of Indiana, LLC, Creditcorp of Kentucky, LLC,
Creditcorp of Wisconsin, LLC and Jones Management Services to the Company in
exchange for 7.5 million shares of Common Stock. On March 31, 1997 and May 1,
1997, Mr. Jones and his wife contributed their equity interests in Creditcorp
of Ohio, LLC and Creditcorp of Illinois, LLC , respectively, to the Company in
exchange for 1.5 million shares of Common Stock.
Prior to January 1, 1997, when it became a wholly-owned subsidiary of the
Company, Jones Management Services was wholly-owned by Mr. Jones and his wife
and provided executive management and advisory services to various other
entities owned by Mr. Jones and his wife, including entities which are now
part of the Company. Fees for services rendered in 1996 were $106,000.
During 1995, 1996 and 1997, the Company borrowed an aggregate of $582,000
from Allan Jones and various entities owned by Mr. Jones and his wife pursuant
to several promissory notes (the "Company Notes"). The Company Notes bore
interest at 9.0% per annum. The entire principal amount of and accrued
interest on the Company Notes has been repaid.
46
During 1995, 1996 and 1997, Mr. Jones and his wife capitalized several of
the Company's subsidiaries in part with an aggregate of $409,000 evidenced by
promissory notes which bore interest at 9.0% per annum. The entire principal
amount of and accrued interest on the notes has been paid.
The Company leases properties located in Cleveland, Tennessee (i) from Mr.
Jones d/b/a Jones Properties pursuant to a Commercial Lease dated January 20,
1997 for a term of 120 months at a monthly rental rate of $1,250, (ii) from
Mr. Jones d/b/a Jones Properties pursuant to a Commercial Lease dated January
20, 1997 for a term of 108 months at a monthly rental rate of $1,250 and (iii)
from Jones Properties LLC pursuant to a Commercial Lease dated March 16, 1998
for a term of 36 and one-half months at a monthly rental rate of $1,000.
Certain of the transactions described above may be on terms more favorable
to officers, directors and principal stockholders and their affiliates than
they could obtain in a transaction with an unaffiliated party.
47
PRINCIPAL AND SELLING STOCKHOLDERS
The following table sets forth certain information regarding the beneficial
ownership of Common Stock as of July 29, 1998, and as adjusted to reflect the
sale of Common Stock offered hereby, by: (i) each director of the Company who
beneficially owns Common Stock; (ii) each Named Executive Officer of the
Company; (iii) all directors and executive officers of the Company as a group;
(iv) each person known to the Company to beneficially own more than 5% of the
outstanding Common Stock; and (v) the Selling Stockholder. Unless otherwise
indicated, shares of Common Stock all are owned directly and the indicated
person has sole voting and investment power.
SHARES BENEFICIALLY
OWNED SHARES BENEFICIALLY
PRIOR TO OFFERING (1) NUMBER OF OWNED AFTER OFFERING
-----------------------SHARES TO BE------------------------
NAME NUMBER PERCENT OFFERED NUMBER PERCENT
---- ------------ ---------------------- ---------- ----------
W. Allan Jones, Jr.(2).. 8,988,000 97.1 --
Janie Jones (3)......... 8,988,000 97.1 --
Steve M. Scoggins....... 269,640 2.9 --
Henry E. Ryan(4)........ 55,359 * --
Frederick Krosner(5).... 57,298 * --
J. Samuel Choate,
Jr.(6)................. 62,922 * --
Sirrom(7)............... 487,247 5.0
All directors and
executive officers as a
group (5 persons)(8)... 9,433,219 100.0 --
- --------
(1) For purposes of this table, a person or group of persons is deemed to have
"beneficial ownership" of any shares that such person or group has the
right to acquire within 60 days after the date of this Prospectus or with
respect to which such person has or shares voting or investment power. For
purposes of computing the percentages of outstanding shares held by each
person or group of persons, shares which such person or group has the
right to acquire within 60 days after such date are deemed to be
outstanding for purposes of computing the percentage for such person or
group but are not deemed to be outstanding for the purpose of computing
the percentage of any other person or group.
(2) Includes 3,595,200 shares held by Mr. Jones' wife, as to which shares Mr.
Jones may be deemed to have beneficial ownership.
(3) Includes 5,392,800 shares held by Mr. Jones, as to which Mrs. Jones may be
deemed to have beneficial ownership
(4) Represents options to purchase 55,359 shares of Common Stock that become
exercisable on the consummation of the Offering.
(5) Represents options to purchase 57,298 shares of Common Stock that become
exercisable on the consummation of the Offering.
(6) Represents options to purchase 62,922 shares of Common Stock that are
currently exercisable.
(7) Represents 487,247 shares of Common Stock issuable upon exercise of the
Sirrom Warrants, all of which become exercisable on the consummation of
the Offering.
(8) Includes options to purchase 175,579 shares of Common Stock that are
exercisable or will become exercisable on the consummation of the
Offering.
48
DESCRIPTION OF CAPITAL STOCK
Upon consummation of the Offering, the authorized capital stock of the
Company will consist of a total of 45.0 million shares of capital stock. Of
the total shares authorized, 40.0 million shares have been authorized as
Common Stock, par value $0.01 per share ("Common Stock"), and 5.0 million
shares have been authorized as Preferred Stock, par value $0.01 per share
("Preferred Stock").
The following summary does not purport to be complete and is subject to and
qualified in its entirety by the provisions of the Company's Certificate and
Bylaws, and by the provisions of applicable law.
COMMON STOCK
Shares of Common Stock are identical in all respects and for all purposes.
Holders of Common Stock are entitled to one vote per share on all matters on
which the holders of Common Stock are entitled to vote. Holders of Common
Stock have no preemptive, conversion, redemption or sinking fund rights. In
the event of a liquidation, dissolution or winding up of the Company, holders
of Common Stock are entitled to share ratably in the assets of the Company, if
any, remaining after the payment of all debts and liabilities of the Company
and the liquidation preference of any outstanding class or series of Preferred
Stock. The outstanding shares of Common Stock are, and the shares of Common
Stock offered by the Company hereby when issued will be, fully paid and
nonassessable. The rights, preferences and privileges of holders of Common
Stock are subject to any series of Preferred Stock which the Company may issue
in the future as described below. As of July 29, 1998, the Company had 9.3
million shares of Common Stock issued and outstanding, all of which was held
by three stockholders.
PREFERRED STOCK
The Board of Directors has the authority, pursuant to the Certificate, to
issue the Preferred Stock in one or more series and to fix the price, rights,
preferences, privileges and restrictions thereof, including dividend rights,
dividend rates, conversion rights, voting rights, terms of redemption,
redemption prices, liquidation preferences and the number of shares
constituting any series or the designation of such series without further vote
or action by the stockholders. The issuance of Preferred Stock by the Board of
Directors could adversely affect the rights of holders of Common Stock.
The issuance of Preferred Stock may have the effect of delaying, deferring
or preventing a change in control of the Company without further action by the
stockholders and may adversely affect the voting and other rights of the
holders of Common Stock. There are currently no agreements or understandings
regarding the issuance of Preferred Stock which agreements or understandings
will survive the consummation of the Offering, and the Board of Directors has
no present intention of issuing any shares of Preferred Stock.
OPTIONS
561,750 million shares of Common Stock are reserved for issuance under the
Incentive Plan. As of July 29, 1998, options to purchase an aggregate of
364,344 shares of Common Stock were outstanding at a weighted average exercise
price of $6.95 per share.
49
WARRANTS
In connection with the Sirrom Loan, the Company issued to Sirrom warrants to
purchase 487,247 shares of Common Stock. In the event that the Sirrom Loan
remains outstanding on November 8, 1999, Sirrom will receive an additional
51,561 shares of common stock; if the Sirrom Loan remains outstanding on
November 8, 2000, Sirrom will receive an additional 52,115 shares of common
stock, at an aggregate exercise price of $0.05. Sirrom has the option to
require the Company to redeem the warrants for a period of 30 days prior to
the expiration of the Sirrom Loan in November 2001, at a purchase price equal
to fair market value, as defined. Upon completion of the Offering, such
redemption right terminates.
In connection with the June 1998 amendment to the Sirrom Loan, the Company
issued to Sirrom warrants to purchase 5,415 shares of Common Stock. For each
additional borrowing under the amended Sirrom Loan the Company will grant
Sirrom additional warrants to purchase shares of Common Stock, up to a total
of 0.25 percent of the capital stock of the Company as calculated on a fully
diluted basis after exercise. However, the Company presently intends to repay
all outstanding borrowings under the Sirrom Loan with proceeds of the
Offering, and, as a result, the warrants issued in connection with such
amendment will be cancelled.
CERTAIN PROVISIONS OF THE CERTIFICATE, BYLAWS AND DELAWARE LAW
The Company's Certificate and Bylaws contain certain provisions, described
below, that could delay, defer or prevent a change in control of the Company
that a stockholder may deem to be in such stockholder's best interest.
Number, Term, Classification and Removal of Directors. The Company's Bylaws
provide that the size of the Company's Board of Directors shall be fixed from
time to time pursuant to a resolution adopted by a majority of the Board of
Directors, but in no case shall the number of directors be less than three.
The Company's Certificate provides that the Board of Directors shall consist
of three classes of directors serving for staggered terms, beginning with the
1999 Annual Meeting of Stockholders. The Board of Directors will be divided as
equally as possible into Classes I, II and III, with the directors elected to
such classes at the 1999 Annual Meeting of Stockholders serving initial terms
of one, two and three years, respectively. Upon the expiration of such terms,
all classes of directors will be elected to serve three-year terms. The
classified board provision could prevent a party who acquires control of a
majority of the outstanding voting stock of the Company from obtaining control
of the Board of Directors until the second annual stockholders meeting
following the date the acquiror obtains the controlling interest.
A director may be removed from office only with cause, upon the majority
vote of the stockholders, at a meeting for which notice of the removal action
was properly given. The directors may fill the place of any director which may
become vacant prior to the expiration of his or her term, such appointment by
the directors to continue until the expiration of the term of the director
whose place has become vacant; or, the directors may fill any directorship
created by reason of an increase in the number of directors, such appointment
by the directors to continue for a term of office until the next election of
directors by the stockholders and until the election and qualification of the
successor.
Call of and Notices Relating to Stockholder Meetings; Actions by Written
Consent of Stockholders. The Company's Bylaws provide that special meetings of
stockholders may be called at any time only by the Chairman of the Board or
the Board of Directors of the Company. Special meetings are to be held at such
time and place and on such date as specified in the notice of the meeting.
Notice of annual or special stockholders' meetings shall be given not less
than ten nor more than 60 days before the date of the meeting, and notice of
any special meeting of stockholders shall state the purpose or purposes for
which the meeting is called. Actions required to be taken at a stockholder
meeting may be taken without a meeting only if the unanimous written consent
of the stockholders entitled to vote at such meeting is obtained and delivered
to the Company for inclusion in its minute book or other corporate records.
DGCL Section 203. The Company is subject to the provisions of the Delaware
General Corporate Law ("DGCL"), including the provisions of Section 203
prohibiting various "business combinations" involving "interested
stockholders" for a period of five years after the stockholder becomes an
interested stockholder of the Company. Such provisions prohibit any business
combination with a interested stockholder unless either (i) prior to such
time, the Board of Directors approves either the business combination or the
transaction by which
50
such stockholder became an interested stockholder, (ii) in the transaction
that resulted in the stockholder becoming an interested stockholder, the
interested stockholder became the beneficial owner of at least 85% of the
outstanding voting stock of the Company which was not held by directors,
officers, affiliates thereof, subsidiaries or certain employee stock option
plans of the Company, or (iii) subsequent to becoming an interested
stockholder, such stockholder acquired additional shares resulting in such
stockholder owning at least 85% of the outstanding voting stock of the Company
and the business combination is approved by a majority of the disinterested
stockholders' shares not held by directors, officers, affiliates thereof,
subsidiaries or certain employee stock options plans of the Company. Under the
relevant provisions of Section 203, a "business combination" is defined to
include, among other things, (i) any merger, consolidation, share exchange or
any sale, transfer or other disposition (or series of related sales or
transfers) of assets of the Company having an aggregate book value of 10% or
more of the Company's net assets (measured as of the end of the most recent
fiscal quarter), with an interested stockholder of the Company or any other
corporation which is or, after giving effect to such business combination,
becomes an affiliate of any such interested stockholder, (ii) the liquidation
or dissolution of the Company, (iii) the receipt by an interested stockholder
of any benefit from any loan, advance, guarantee, pledge, tax credit or other
financial benefit from the Company, other than in the ordinary course of
business and (iv) certain other transactions involving the issuance or
reclassification of securities of the Company which produce the result that 5%
or more of the total equity shares of the Company, or of any class or series
thereof, is owned by an interested stockholder. An "interested stockholder" is
defined by the DGCL to include any person or entity that, together with its
affiliates, beneficially owns or has the right to own 15% or more of the
outstanding voting shares of the Company, or any person that is an affiliate
of the Company and has, at any time within the preceding two-year period, been
the beneficial owner of 15% or more of the outstanding voting shares of the
Company. The restrictions on business combinations shall not apply to any
person who was an interested stockholder before the adoption of the Bylaw
which made the provisions applicable to the Company nor to any persons who
subsequently become interested stockholders inadvertently, subsequently divest
sufficient shares so that the stockholder ceases to be an interested
stockholder and would not, at any time within the five-year period immediately
before a business combination involving the stockholder have been an
interested stockholder but for the inadvertent acquisition.
51
SHARES ELIGIBLE FOR FUTURE SALE
Prior to the Offering, there has been no public market for the Common Stock.
Sales of substantial amounts of shares of the Common Stock in the public
market following the Offering, or the perception that such sales could occur
could adversely affect the market price of the Common Stock prevailing from
time to time and could impair the Company's ability to raise capital in the
future through sales of its equity securities at a time and price which it
deems appropriate.
Upon completion of the Offering, assuming no exercise of outstanding options
or warrants, the Company will have shares of Common Stock outstanding. Of
these shares, the shares of Common Stock sold in the Offering will be
freely tradable without restriction or further registration under the
Securities Act, except that any shares purchased by "affiliates" of the
Company, as that term is defined in Rule 144 ("Rule 144") under the Securities
Act ("Affiliates"), may generally only be sold in compliance with Rule 144
described below. The remaining shares of Common Stock are "Restricted
Securities" as defined in Rule 144. Restricted Securities may be sold in the
public market only if registered or if they qualify for an exemption from
registration under Rules 144, 144(k) or 701 under the Securities Act, which
rules are summarized below.
SALES OF RESTRICTED SECURITIES
Subject to the provisions of Rule 144 under the Securities Act, beginning 90
days after the Offering, shares will be eligible for immediate sale in the
public market that are not otherwise subject to certain lock-up agreements
among certain stockholders of the Company, including directors, officers and
Selling Stockholders and the Underwriters (the "Lock-Up Agreements").
Beginning 180 days after the offering (or earlier with the written consent of
CIBC Oppenheimer Corp. in its discretion), an aggregate of shares will be
available for immediate sale in the public market upon expiration of Lock-Up
Agreements and subject to the provisions of Rule 144.
In general, under Rule 144 as currently in effect, beginning 90 days after
the effective date of the registration statement containing this Prospectus, a
person (or persons whose shares are aggregated) who has beneficially owned
Restricted Securities for at least one year, including a person who may be
deemed an Affiliate of the Company, is entitled to sell, within any three-
month period, a number of shares of Common Stock equal to the greater of one
percent of the shares of Common Stock outstanding (approximately shares
after giving effect to the Offering) and the average weekly reported trading
volume of the Common Stock during the four calendar weeks preceding such sale.
Sales under Rule 144 are subject to certain restrictions relating to manner of
sale, notice and availability of current public information about the Company.
In addition, under Rule 144(k), a person who is not an Affiliate and has not
been an Affiliate at any time during the 90 days preceding a sale, and who has
beneficially owned shares for at least two years, would be entitled to sell
such shares immediately following the offering without regard to the volume
limitations, manner of sale provisions or notice or other requirements of Rule
144. In meeting the one and two year holding periods described above, a holder
of Restricted Securities can include the holding periods of those persons from
whom he or she purchased the Restricted Securities. The holding periods
described above do not begin to run until the full purchase price or other
consideration is paid by the person acquiring the Restricted Securities from
the issuer or an Affiliate.
OPTIONS AND WARRANTS
As of July 29, 1998, options and warrants to purchase an aggregate of
851,591 shares of Common Stock were outstanding of which shares are being
offered hereby by Sirrom. See "Management--Executive Compensation."
Rule 701 under the Securities Act provides that shares of Common Stock
acquired on the exercise of outstanding options may be resold by persons other
than Affiliates, beginning 90 days after the date of this Prospectus, subject
only to the manner of sale provisions of Rule 144, and by Affiliates under
Rule 144 without compliance with its one-year minimum holding period, subject
to certain limitations.
52
The Company may file one or more registration statements on Form S-8 under
the Securities Act to register 561,750 shares of Common Stock issuable
pursuant to the Incentive Plan. Shares of Common Stock covered by these
registration statements will thereupon be eligible for sale in the public
markets subject to Lock-Up Agreements, if applicable.
The Sirrom warrants provide that, pursuant to certain "piggyback"
registration rights, Sirrom is entitled to include up to an aggregate of
487,247 shares of Common Stock in any registration statement filed by the
Company of which shares of Common Stock are being registered in connection
with the Offering.
LOCK-UP AGREEMENTS
The Company, Sirrom, and all executive officers and directors of the Company
have agreed, pursuant to Lock-Up Agreements, not to directly or indirectly,
without the prior written consent of CIBC Oppenheimer Corp., offer to sell,
contract to sell, or otherwise sell, dispose of, loan, pledge, or grant any
rights with respect to an aggregate of shares of Common Stock, options to
purchase an aggregate of shares of Common Stock and any securities
convertible or exchangeable for shares of Common Stock beneficially owned by
them or any such securities hereafter acquired by them for a period of 180
days after the date of this Prospectus other than (i) certain transfers to
immediate family members during the security holder's lifetime or by laws of
testamentary or intestate descent, or (ii) certain distributions to such
holder's limited partners, stockholders, or other equity holders, as the case
may be, provided any such transferee agrees to be bound by the terms of the
Lock-Up Agreements.
53
UNDERWRITING
Subject to the terms and conditions set forth in the Underwriting Agreement
among the Company and the underwriters named below (the "Underwriters"), for
whom CIBC Oppenheimer Corp. and J.C. Bradford & Co. are acting as
representatives (the "Representatives"), each of the Underwriters has
severally agreed to purchase from the Company, and the Company has agreed to
sell to the Underwriters, the respective numbers of shares of Common Stock set
forth opposite their names below:
NAME NUMBER OF SHARES
---- ----------------
CIBC Oppenheimer Corp......................................
J.C. Bradford & Co.........................................
----
Total.....................................................
====
The Underwriting Agreement provides that the obligations of the several
Underwriters thereunder are subject to approval of certain legal matters by
counsel and to various other conditions. The Underwriters are committed to
purchase and pay for all of the above shares of Common Stock if any are
purchased.
The Underwriters have advised the Company that the Underwriters propose to
offer the shares of Common Stock directly to the public at the offering price
set forth on the cover page of this Prospectus, and to certain dealers at such
price less a concession not in excess of $ . per share of Common Stock. The
Underwriters may allow, and such dealers may re-allow, a concession not in
excess of $ . per share of Common Stock on sales to certain other dealers.
After the initial public offering of the shares, the public offering price,
concession and re-allowance to dealers may be changed by the Underwriters.
The Company has granted the Underwriters an option exercisable during the
30-day period after the date of this Prospectus to purchase up to
additional shares of Common Stock, solely to cover over-allotments, if any, at
the public offering price less the underwriting discount, as set forth on the
cover page of this Prospectus. If the Underwriters exercise such over-
allotment option, the Underwriters have severally agreed, subject to certain
conditions, to purchase approximately the same percentage thereof as the
number of shares of Common Stock offered hereby. The Underwriters may exercise
such option only to cover over-allotments made in connection with the sale of
the shares of Common Stock offered hereby.
Prior to the Offering, there has been no public trading market for the
Common Stock. Although the Company has applied for the Common Stock to be
approved for quotation on Nasdaq, there can be no assurance that any active
trading market will develop for the Common Stock or, if developed, will be
maintained. The initial public offering price was determined through
negotiations among the Company and the Representatives. The factors considered
in determining the initial public offering price included the history of and
the prospects for the industry in which the Company competes, the ability of
the Company's management, the past and present operations of the Company, the
historical results of operations of the Company, the prospects for future
earnings of the Company, the general condition of the securities markets at
the time of the Offering and the recent market prices of securities of
generally comparable companies.
54
In connection with the Offering, the Underwriters may engage in transactions
that stabilize, maintain or otherwise affect the price of the Common Stock.
Specifically, the Underwriters may overallot the Offering, creating a short
position in the Common Stock for their own account. The Underwriters may bid
for and purchase shares of Common Stock in the open market to cover such short
position or to stabilize the price of the Common Stock. In addition, the
underwriting syndicate may reclaim selling concessions from syndicate members
if it repurchases previously distributed Common Stock in syndicate covering
transactions, in stabilizing transactions or otherwise. These activities may
stabilize or maintain the market price of the Common Stock above independent
market levels. The Underwriters are not required to engage in these activities
and may terminate any of these activities at any time.
The executive officers, directors and certain stockholders of the Company
have agreed with the Representatives not to offer to sell or otherwise dispose
of, or transfer, directly or indirectly, any shares of Common Stock they
currently own, or any securities convertible into or exchangeable or
exercisable for, any rights to purchase or acquire, shares of Common Stock for
a period of 180 days from the date of this Prospectus, without the prior
written consent of CIBC Oppenheimer Corp., except that the Company may issue
shares in connection with the exercise of stock options granted pursuant to
the Company's stock option plans. See "Shares Eligible for Future Sale."
The Representatives have informed the Company that the Underwriters will not
confirm, without customer authorization, sales to their customer accounts as
to which they have discretionary trading power.
The Underwriting Agreement provides that the Company will indemnify the
Underwriters and controlling persons, if any, against certain civil
liabilities, including liabilities under the Securities Act, or will
contribute to payments that the Underwriters or any such controlling persons
may be required to make in respect thereof.
LEGAL MATTERS
The legality of the shares of Common Stock offered hereby and certain other
legal matters will be passed upon for the Company by Alston & Bird LLP,
Atlanta, Georgia. Certain legal matters related to the Offering will be passed
upon for the Underwriters by Gibson, Dunn & Crutcher LLP, New York, New York.
EXPERTS
The consolidated financial statements and schedules included in this
Prospectus and elsewhere in the Registration Statement have been audited by
Arthur Andersen LLP, independent public accountants, as indicated in their
reports with respect thereto, and are included herein in reliance upon the
authority of said firm as experts in giving said reports.
AVAILABLE INFORMATION
The Company has not previously been subject to the reporting requirements of
the Securities Exchange Act of 1934, as amended. The Company has filed with
the Securities and Exchange Commission (the "Commission") a Registration
Statement on Form S-1 (together with all amendments and exhibits thereto, the
"Registration Statement") under the Securities Act of 1933, as amended (the
"Securities Act") with respect to the offer and sale of Common Stock pursuant
to this Prospectus. This Prospectus, filed as a part of the Registration
Statement, does not contain all of the information set forth in the
Registration Statement or the exhibits and schedules thereto in accordance
with the rules and regulations of the Commission and reference is hereby made
to such omitted information. Statements made in this Prospectus concerning the
contents of any contract, agreement or other document filed as an exhibit to
the Registration Statement are summaries of the terms of such contracts,
agreements or documents. Reference is made to each such exhibit for a more
complete description of the matters
55
involved. The Registration Statement and the exhibits and schedules thereto
filed with the Commission may be inspected, without charge, and copies may be
obtained at prescribed rates, at the public reference facility maintained by
the Commission at Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C.
20549 and at the regional offices of the Commission located at 7 World Trade
Center, 13th Floor, New York, New York 10048 and Citicorp Center, 500 West
Madison Street, Suite 1400, Chicago, Illinois 60661-2511. The Registration
Statement and other information filed by the Company with the Commission are
also available at the web site maintained by the Commission on the World Wide
Web at http://www.sec.gov. For further information pertaining to the Company
and the Common Stock offered by this Prospectus, reference is made to the
Registration Statement.
The Company intends to furnish its stockholders with annual reports
containing financial statements audited by its independent accountants and
quarterly reports for the first three quarters of each fiscal year containing
unaudited financial statements.
56
CHECK INTO CASH, INC.
INDEX TO FINANCIAL STATEMENTS
PAGE
----
Report of Independent Public Accountants................................. F-2
Consolidated Balance Sheets as of December 31, 1996 and 1997, and June
30, 1998 (Unaudited).................................................... F-3
Consolidated Statements of Operations and Comprehensive Income (Loss) for
the Years Ended December 31, 1995, 1996, and 1997, and for the Six
Months Ended June 30, 1997 and 1998 (Unaudited)......................... F-4
Consolidated Statements of Stockholders' Equity for the Years Ended De-
cember 31, 1995, 1996, and 1997, and for the Six Months Ended June 30,
1998 (Unaudited)........................................................ F-5
Consolidated Statements of Cash Flows for the Years Ended December 31,
1995, 1996, and 1997, and for the Six Months Ended June 30, 1997 and
1998 (Unaudited)........................................................ F-6
Notes to Consolidated Financial Statements............................... F-7
F-1
After the stock split discussed in Note 11 to Check Into Cash, Inc.'s
consolidated financial statements is affected, we expect to be in a position
to render the following audit report.
ARTHUR ANDERSEN LLP
Chattanooga, Tennessee
July 9, 1998
REPORT OF INDEPENDENT PUBLIC ACCOUNTANTS
To Check Into Cash, Inc.:
We have audited the accompanying consolidated balance sheets of CHECK INTO
CASH, INC. (a Delaware corporation) AND SUBSIDIARIES as of December 31, 1996
and 1997 and the related consolidated statements of operations and
comprehensive income (loss), stockholders' equity, and cash flows for the each
of the three years in the period ended December 31, 1997. These financial
statements are the responsibility of the Company's management. Our
responsibility is to express an opinion on these financial statements based on
our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to
obtain reasonable assurance about whether the financial statements are free of
material misstatement. An audit includes examining, on a test basis, evidence
supporting the amounts and disclosures in the financial statements. An audit
also includes assessing the accounting principles used and significant
estimates made by management, as well as evaluating the overall financial
statement presentation. We believe that our audits provide a reasonable basis
for our opinion.
In our opinion, the financial statements referred to above present fairly,
in all material respects, the financial position of Check Into Cash, Inc. and
subsidiaries as of December 31, 1996 and 1997 and the results of their
operations and their cash flows for each of the three years in the period
ended December 31, 1997 in conformity with generally accepted accounting
principles.
F-2
CHECK INTO CASH, INC.
CONSOLIDATED BALANCE SHEETS
PRO FORMA
DECEMBER 31 STOCKHOLDERS'
----------------------- JUNE 30, EQUITY AT
1996 1997 1998 JUNE 30, 1998
---------- ----------- ----------- -------------
(UNAUDITED) (NOTE 6)
(UNAUDITED)
ASSETS
Current assets:
Cash..................... $ 997,212 $ 1,149,925 $ 2,282,009
Marketable securities.... 157,065 81,164 87,854
Held checks, less allow-
ance for uncollectible
checks of $135,000,
$255,000, and $265,000,
respectively............ 3,466,898 9,847,430 15,119,598
Other receivables........ 21,100 301,739 115,728
Receivables from related
parties................. 478,384 666,941 929,093
Prepaid expenses and oth-
er...................... 32,546 164,779 795,812
Deferred income taxes.... 30,400 885,999 139,502
---------- ----------- -----------
Total current assets... 5,183,605 13,097,977 19,469,596
---------- ----------- -----------
Property and equipment,
net....................... 645,859 2,184,527 3,032,223
---------- ----------- -----------
Other assets, net.......... 284,867 642,507 667,687
---------- ----------- -----------
$6,114,331 $15,925,011 $23,169,506
========== =========== ===========
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Notes payable............ $ 606,773 $ 45,587 $ 33,672
Accounts payable......... 235,047 1,352,225 1,378,611
Payables to related par-
ties.................... 304,789 118,120 90,013
Accrued wages............ 229,269 302,069 875,524
Accrued income taxes..... 499,254 222,570 334,304
Other accrued liabili-
ties.................... 95,976 101,069 164,394
Accrued litigation set-
tlement (Note 9)........ 0 1,832,000 1,758,837
---------- ----------- -----------
Total current liabili-
ties.................. 1,971,108 3,973,640 4,635,355
---------- ----------- -----------
Long term debt, net of un-
amortized discount of
$437,061, $344,861, and
$328,686, respectively.... 562,939 8,650,069 13,591,392
---------- ----------- -----------
Deferred income taxes...... 7,000 7,000 0
---------- ----------- -----------
Other liabilities (Note
9)........................ 0 368,000 138,000
---------- ----------- -----------
Commitments and contingen-
cies (Note 9)
Warrants with redemption
feature (Note 5).......... 461,000 493,181 911,299
---------- ----------- -----------
Stockholders' equity:
Preferred stock, $.01 par
value, 1,000,000 shares
authorized, none is-
sued.................... 0 0 0
Common stock, $.01 par
value; shares
authorized, 8,988,000,
9,257,640, and 9,257,640
shares issued and
outstanding in 1996,
1997 and 1998,
respectively............ 89,880 92,576 92,576
Additional paid in capi-
tal..................... 587,738 851,442 851,442
Retained earnings........ 2,446,772 1,549,076 3,034,091
Accumulated other compre-
hensive loss............ (12,106) (59,973) (84,649)
---------- ----------- ----------- ---------
Total stockholders' eq-
uity.................. 3,112,284 2,433,121 3,893,460
---------- ----------- ----------- ---------
$6,114,331 $15,925,011 $23,169,506
========== =========== =========== =========
The accompanying notes are an integral part of these consolidated balance
sheets.
F-3
CHECK INTO CASH, INC.
CONSOLIDATED STATEMENTS OF OPERATIONS
AND COMPREHENSIVE INCOME (LOSS)
FOR THE SIX MONTHS ENDED
FOR THE YEAR ENDED DECEMBER 31 JUNE 30
----------------------------------- -------------------------
1995 1996 1997 1997 1998
---------- ----------- ----------- ------------ ------------
(UNAUDITED)
Revenues:
Store revenues......... $3,715,056 $10,145,905 $21,058,501 $ 7,818,788 $ 21,088,692
Other revenues......... 0 106,180 388,087 189,064 152,530
---------- ----------- ----------- ----------- ------------
Total revenues........ 3,715,056 10,252,085 21,446,588 8,007,852 21,241,222
---------- ----------- ----------- ----------- ------------
Store expenses:
Salaries and benefits.. 783,615 2,374,450 5,031,970 2,068,250 4,715,050
Occupancy.............. 401,322 1,017,438 2,470,382 980,536 2,505,996
Other store expenses... 952,605 1,907,290 5,595,451 2,048,448 5,004,763
---------- ----------- ----------- ----------- ------------
Total store expenses.. 2,137,542 5,299,178 13,097,803 5,097,234 12,225,809
---------- ----------- ----------- ----------- ------------
General and administra-
tive expenses:
Legal and professional
expense (Note 9)...... 49,222 266,073 3,192,732 454,633 561,102
Other general and ad-
ministrative ex-
penses................ 612,075 2,306,986 5,406,352 1,948,178 4,630,223
---------- ----------- ----------- ----------- ------------
Total general and ad-
ministrative ex-
penses............... 661,297 2,573,059 8,599,084 2,402,811 5,191,325
---------- ----------- ----------- ----------- ------------
Interest expense, net... 36,649 124,217 621,452 194,568 620,443
---------- ----------- ----------- ----------- ------------
Income (loss) before in-
come taxes............. 879,568 2,255,631 (871,751) 313,239 3,203,645
Provision for (benefit
from) income taxes..... 346,540 515,109 (594,236) 200,636 1,082,515
---------- ----------- ----------- ----------- ------------
Net income (loss)....... $ 533,028 $ 1,740,522 $ (277,515) $ 112,603 $ 2,121,130
========== =========== =========== =========== ============
Other comprehensive
loss, net of tax:
Unrealized holding
(losses) gain arising
during period......... 0 (19,506) (75,901) (49,758) 6,690
Income tax effect of
unrealized holding
losses................ 0 7,400 28,034 18,908 (31,366)
---------- ----------- ----------- ----------- ------------
Other comprehensive
loss, net of tax..... 0 (12,106) (47,867) (30,850) (24,676)
---------- ----------- ----------- ----------- ------------
Comprehensive income
(loss)................. $ 533,028 $ 1,728,416 $ (325,382) $ 81,753 $ 2,096,454
========== =========== =========== =========== ============
Net income (loss) per
share (Note 2):
Basic.................. $ 0.06 $ 0.19 $ (0.03) $ 0.01 $ 0.23
========== =========== =========== =========== ============
Diluted................ $ 0.06 $ 0.19 $ (0.03) $ 0.01 $ 0.22
========== =========== =========== =========== ============
Weighted average common
shares outstanding--
basic................. 8,988,000 8,988,000 9,123,929 8,988,000 9,257,640
========== =========== =========== =========== ============
Weighted average common
shares outstanding--
diluted............... 8,988,000 9,060,084 9,123,929 9,475,247 9,778,397
========== =========== =========== =========== ============
Pro forma data (unau-
dited) (Notes 2 and 4):
Historical (loss) in-
come before pro forma
income taxes.......... $ (871,751) $ 3,203,645
Pro forma (benefit
from) provision for
income taxes.......... (331,265) 1,217,385
----------- ------------
Pro forma net (loss)
income................ $ (540,486) $ 1,986,260
=========== ============
Pro forma net (loss)
income per share:
Basic.................. $ $
=========== ============
Diluted................ $ $
=========== ============
Weighted average common
shares outstanding--
basic.................
=========== ============
Weighted average common
shares outstanding--
diluted...............
=========== ============
The accompanying notes are an integral part of these consolidated statements.
F-4
CHECK INTO CASH, INC.
CONSOLIDATED STATEMENTS OF STOCKHOLDERS' EQUITY
ACCUMULATED
COMMON STOCK ADDITIONAL OTHER
----------------- PAID IN RETAINED COMPREHENSIVE
SHARES AMOUNT CAPITAL EARNINGS LOSS TOTAL
--------- ------- ---------- ---------- ------------- ----------
BALANCE, DECEMBER 31,
1994................... 8,988,000 $89,880 $ 0 $ 173,222 $ 0 $ 263,102
Net income.............. 0 0 0 533,028 0 533,028
--------- ------- -------- ---------- -------- ----------
BALANCE, DECEMBER 31,
1995................... 8,988,000 89,880 0 706,250 0 796,130
Net income.............. 0 0 0 1,740,522 0 1,740,522
Contributions from
stockholders........... 0 0 587,738 0 0 587,738
Unrealized loss on
marketable securities,
net.................... 0 0 0 0 (12,106) (12,106)
--------- ------- -------- ---------- -------- ----------
BALANCE, DECEMBER 31,
1996................... 8,988,000 89,880 587,738 2,446,772 (12,106) 3,112,284
Net loss................ 0 0 0 (277,515) 0 (277,515)
Accretion of warrants... 0 0 0 (32,181) 0 (32,181)
Unrealized loss on
marketable securities,
net.................... 0 0 0 0 (47,867) (47,867)
Issuance of common stock
to employee............ 269,640 2,696 263,704 0 0 266,400
Distribution to stock-
holders................ 0 0 0 (588,000) 0 (588,000)
--------- ------- -------- ---------- -------- ----------
BALANCE, DECEMBER 31,
1997................... 9,257,640 92,576 851,442 1,549,076 (59,973) 2,433,121
Net income.............. 0 0 0 2,121,130 0 2,121,130
Accretion of warrants... 0 0 0 (418,118) 0 (418,118)
Unrealized loss on
marketable securities,
net.................... 0 0 0 0 (24,676) (24,676)
Distribution to stock-
holders................ 0 0 0 (217,997) 0 (217,997)
--------- ------- -------- ---------- -------- ----------
BALANCE, JUNE 30, 1998
(Unaudited)............ 9,257,640 $92,576 $851,442 $3,034,091 $(84,649) $3,893,460
========= ======= ======== ========== ======== ==========
The accompanying notes are an integral part of these consolidated statements.
F-5
CHECK INTO CASH, INC.
CONSOLIDATED STATEMENTS OF CASH FLOWS
FOR THE SIX MONTHS
FOR THE YEAR ENDED DECEMBER 31 ENDED JUNE 30
------------------------------------- ------------------------
1995 1996 1997 1997 1998
----------- ----------- ----------- ----------- -----------
(UNAUDITED)
CASH FLOWS FROM OPERAT-
ING ACTIVITIES:
Net income (loss)...... $ 533,028 $ 1,740,522 $ (277,515) $ 112,603 $ 2,121,130
Adjustments to
reconcile net income
(loss) to net cash
(used in) provided by
operating activities:
Depreciation and
amortization......... 51,096 140,136 990,073 268,847 776,325
Deferred income tax
(benefit) provision.. (4,000) (12,000) (827,565) 0 708,131
Compensation expense
related to issuance
of common stock...... 0 0 266,400 0 0
Changes in operating
assets and
liabilities:
Held checks, net..... (1,467,064) (1,544,115) (6,380,532) (1,533,557) (5,272,168)
Prepaid expenses..... (638) (31,908) (132,233) (106,132) (648,025)
Other assets......... (48,101) (31,868) (282,944) (174,007) 117,282
Accounts payable..... 31,492 191,833 1,109,677 224,787 26,385
Accrued liabilities.. 385,480 356,737 2,001,209 (193,683) 445,352
----------- ----------- ----------- ----------- -----------
Net cash (used in)
provided by
operating
activities......... (518,707) 809,337 (3,533,430) (1,401,142) (1,725,588)
----------- ----------- ----------- ----------- -----------
CASH FLOWS FROM INVEST-
ING ACTIVITIES:
Purchases of property
and equipment......... (279,260) (475,020) (2,363,876) (1,185,373) (1,517,380)
Investment in market-
able securities....... 0 (176,571) 0 0 0
----------- ----------- ----------- ----------- -----------
Net cash used in
investing
activities......... (279,260) (651,591) (2,363,876) (1,185,373) (1,517,380)
----------- ----------- ----------- ----------- -----------
CASH FLOWS FROM FINANC-
ING ACTIVITIES:
Proceeds from
borrowings............ 588,559 1,086,159 8,049,059 4,046,112 5,108,308
Principal payments on
borrowings............ 0 (67,945) (615,315) (615,315) (225,000)
Debt issuance costs.... 0 (220,000) (428,000) (46,689) 0
Capital contributions.. 0 587,738 0 0 0
Distributions to stock-
holders............... 0 0 (588,000) (588,000) (217,997)
Borrowings from (pay-
ments to) related par-
ties, net............. 447,767 (859,318) (367,725) (71,756) (290,259)
----------- ----------- ----------- ----------- -----------
Net cash provided by
financing
activities......... 1,036,326 526,634 6,050,019 2,724,352 4,375,052
----------- ----------- ----------- ----------- -----------
Net increase in cash.... 238,359 684,380 152,713 137,837 1,132,084
Cash, beginning of
year................... 74,473 312,832 997,212 997,212 1,149,925
----------- ----------- ----------- ----------- -----------
Cash, end of year....... $ 312,832 $ 997,212 $ 1,149,925 $ 1,135,049 $ 2,282,009
=========== =========== =========== =========== ===========
SUPPLEMENTAL DISCLOSURES
OF CASH FLOW
INFORMATION:
Cash paid during the
year for:
Interest.............. $ 24,765 $ 129,787 $ 528,648 $ 223,078 $ 717,090
=========== =========== =========== =========== ===========
Income taxes.......... $ 45,197 $ 347,040 $ 402,779 $ 487,250 $ 290,589
=========== =========== =========== =========== ===========
The accompanying notes are an integral part of these consolidated statements.
F-6
CHECK INTO CASH, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(INFORMATION AS OF JUNE 30, 1997 AND 1998 IS UNAUDITED)
1. ORGANIZATION AND BUSINESS ACTIVITIES
As of December 31, 1997, Check Into Cash, Inc. and subsidiaries (the
"Company") operates 176 retail stores in twelve states across the United
States. These retail stores advance cash against their customers' personal
checks and hold the checks until they are redeemed by the customers or until
the holding period, which is typically 14 to 17 days, has expired. In exchange
for its service, the Company receives a fee ranging from approximately 11.5%
to 18.5% of the face amount of the check.
In June 1993, the Company commenced its operations in Tennessee as
Creditcorp of Tennessee, Inc. ("Creditcorp"). During 1995, Creditcorp created
three wholly-owned subsidiaries for the purpose of opening and operating
stores in Kentucky, Illinois and Indiana. On January 1, 1996, Creditcorp
distributed its interest in the three subsidiaries to its principal
shareholder. During 1996, these companies, along with additional companies
organized in 1996 to open and operate new stores in Wisconsin, Ohio and Iowa,
existed as stand-alone entities with common majority ownership in each. On
January 1, 1997, the majority shareholders merged these companies and
exchanged their equity interests for common stock in the newly created Check
Into Cash, Inc. During 1997, Check Into Cash, Inc. organized five new
subsidiaries to open and operate locations in North Carolina, California,
Missouri, Nebraska and Washington.
2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
Basis of Consolidation
The accompanying consolidated financial statements of Check Into Cash, Inc.
include the accounts of its wholly-owned subsidiaries, including six S
corporations, six limited liability companies, and two C corporations. The
1997 merger described in Note 1 has been reflected retroactively in a manner
similar to a pooling-of-interests transaction. All material intercompany
transactions and balances have been eliminated.
Risks and Uncertainties
The Company's business is regulated by state laws and regulations in each
state in which it operates, including those governing consumer protection and,
in some cases, lending practices (such as truth-in-lending and state usury
laws), which are subject to change. These laws and regulations, among other
things, establish licensing requirements, regulate the Company's credit
approval and application procedures, establish maximum fees and late charges,
require specified disclosures to customers, and govern collection practices.
Any adverse change in or interpretation of existing laws or regulations or the
failure to comply with any such laws and regulations could result in fines,
class-action litigation, or interruption or cessation of certain business
activities of the Company. Any of these events could have a material adverse
effect on the Company's business. In addition, there can be no assurance that
amendments to such laws and regulations or new or more restrictive laws or
regulations or interpretations thereof will not be adopted in the future which
may make compliance more difficult or expensive, further limit or restrict
fees and other charges, curtail the current operations of the Company,
restrict the Company's ability to expand its operations or otherwise
materially adversely affect the business or prospects of the Company.
Uses of Estimates in the Preparation of Financial Statements
The preparation of financial statements in conformity with generally
accepted accounting principles requires management to make estimates and
assumptions that affect the reported amounts of assets and liabilities at the
date of the financial statements and the reported amounts of revenues and
expenses during the reporting period. Actual results could differ from those
estimates, although, in the opinion of the Company's management, such
differences would not be significant.
F-7
CHECK INTO CASH, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
Unaudited Interim Financial Information
The accompanying consolidated financial statements as of June 30, 1998 and
for the six months ended June 30, 1997 and 1998 are unaudited. In the opinion
of the management of the Company, these financial statements reflect all
adjustments, consisting only of normal recurring adjustments, necessary for a
fair presentation of the financial statements. The results of operations for
the six months ended June 30, 1997 and 1998 are not necessarily indicative of
the results that may be expected for a full year.
Revenue Recognition
The Company recognizes revenue when cash is advanced to the customer.
Recognized revenue represents the Company's fee on the face amount of held
checks. An allowance for uncollectible checks is estimated and recorded based
on the Company's historical bad debt experience.
Marketable Securities
All marketable securities are classified as available-for-sale and are
available to support current operations. These securities are stated at their
estimated fair value based upon quoted market prices. Unrealized gains and
losses, net of tax, are computed on the basis of specific identification and
are included as a component of accumulated other comprehensive income (loss)
in stockholders' equity. Realized gains, realized losses, and declines in
value, judged to be other-than-temporary, are included in other income
(expense).
Property and Equipment
Property and equipment are stated at cost. Expenditures, which materially
increase useful lives, are capitalized and ordinary maintenance and repairs
are expensed as incurred. When properties are retired or otherwise disposed
of, their cost and accumulated depreciation are removed from the related
accounts and any gain or loss is reflected in income. Depreciation is provided
for using accelerated methods over the estimated useful life of the asset.
Leasehold improvements are depreciated using the straight-line method over the
shorter of the estimated useful life of the asset or the remaining term of the
lease. Depreciation expense was $51,096, $116,197 and $825,208 for the years
ended December 31, 1995, 1996 and 1997, respectively.
Property and equipment at December 31, 1996 and 1997, consisted of the
following:
1996 1997 USEFUL LIVES
--------- ---------- -------------------
Furniture and fixtures.......... $ 175,403 $ 456,939 Seven years
Computer and processing equip-
ment........................... 162,179 925,722 Three to five years
Leasehold improvements.......... 480,799 1,799,596 Lease term
--------- ----------
818,381 3,182,257
Accumulated depreciation........ (172,522) (997,730)
--------- ----------
$ 645,859 $2,184,527
========= ==========
Deferred Loan Costs
Included in other assets in the accompanying consolidated balance sheets are
deferred loan costs of approximately $220,000 and $428,000 for 1996 and 1997,
respectively. Such costs consist of fees and other expenses incurred in
connection with the Company entering into certain debt agreements (Note 3).
These amounts are being amortized over the term of the related financing
agreements. Amortization expense for the years ended December 31, 1995, 1996
and 1997 was $0, $0 and $72,665.
F-8
CHECK INTO CASH, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
Long-Lived Assets
The Company periodically reviews the values assigned to long-lived assets to
be held and used when events and circumstances warrant such a review. The
carrying value of a long-lived asset is considered impaired when the
anticipated undiscounted cash flow from such asset is separately identified
and is less than its carrying value. In that event, a loss is recognized based
on the amount by which the carrying value exceeds the fair market value of the
long-lived asset. Fair market value is determined primarily using anticipated
cash flows discounted at a rate commensurate with the risk involved. Losses on
long-lived assets to be disposed of are determined in a similar manner, except
that fair market values are reduced for the cost to dispose.
Advertising
The Company expenses all advertising costs as incurred. The Company incurred
and expensed advertising costs of $474,622, $617,272 and $1,968,513 during the
years ended December 31, 1995, 1996 and 1997, respectively.
Store Opening Costs
Store opening costs, including advertising, payroll, legal, travel,
training, and small equipment costs, are expensed as incurred.
Income Taxes
Except for two of the Company's wholly-owned subsidiaries, the taxable
income or loss of all subsidiaries included in the consolidated financial
statements of the Company, is reported by the owners/members on their
respective individual income tax returns.
Creditcorp of Tennessee, Inc. and Check Into Cash Holdings, Inc., account
for income taxes in accordance with SFAS No. 109, "Accounting for Income
Taxes." Deferred income tax assets or liabilities are computed based on the
differences in financial statement and income tax bases of assets and
liabilities using the enacted tax rate.
Effective January 1, 1998, Creditcorp elected to be taxed under the
provisions of Subchapter S of the Internal Revenue Code. As such, the taxable
income or loss of Creditcorp after January 1, 1998 will be included in the tax
return of the shareholders for federal income tax purposes (Note 4).
Prior to the proposed initial public offering (the "Offering") of its common
stock as discussed in Note 11, the Company will convert from an S corporation
to a C corporation (Note 4). Proceeds of the Offering will be used to fund a
distribution of approximately $3,900,000 in previously undistributed S
corporation earnings on which the shareholders have paid taxes.
Net Income (Loss) Per Share
Effective January 1, 1998, the Company adopted the requirements of Statement
of Financial Accounting Standards ("SFAS") No. 128, "Earnings Per Share".
Basic earnings (loss) per share is based on the weighted average number of
shares outstanding. Diluted earnings (loss) per share is based on the weighted
average number of shares outstanding and the dilutive effect of common stock
equivalent shares issuable upon the exercise of stock options and warrants
(using the treasury stock method). All common stock equivalents have been
excluded for the year ended December 31, 1997 due to their antidilutive
effect. The difference in basic and diluted earnings per share for the year
ended December 31, 1996 was due to the assumed conversion of 487,247 warrants
(Note 5).
F-9
CHECK INTO CASH, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
Unaudited pro forma net income (loss) per share was calculated by dividing
pro forma net income (loss) by the weighted average number of shares
outstanding for the periods presented after giving effect to the number of
shares that would be required to fund the $3,900,000 S corporation
distribution.
Fair Value of Financial Instruments
The carrying values of cash, held checks and other receivables, trade accounts
payable, and other accruals approximate their fair values principally because
of the short-term nature of these instruments. The carrying value of the
Company's long-term debt approximates its fair value based on the current
rates offered to the Company for debt of similar terms and maturities.
New Accounting Pronouncements
In June 1997, the Financial Accounting Standards Board issued SFAS No. 130,
"Reporting Comprehensive Income," which establishes standards for reporting
and presentation of comprehensive income and its components in a full set of
general purpose financial statements. The Company adopted SFAS No. 130
effective January 1, 1998. All prior periods have been restated to report and
present comprehensive income and its components.
3. LONG-TERM DEBT
Long-term debt consisted of the following at December 31, 1996 and 1997:
1996 1997
---------- ----------
Line of credit, due November 2001.................... $1,000,000 $3,500,000
Line of credit with bank, due October 2000........... 0 5,494,930
8.25% note payable to bank, repaid during 1997....... 585,614 0
Other notes payable.................................. 21,159 45,587
---------- ----------
1,606,773 9,040,517
Less current portion................................. (606,773) (45,587)
---------- ----------
1,000,000 8,994,930
Less original issue discount......................... (437,061) (344,861)
---------- ----------
$ 562,939 $8,650,069
========== ==========
In November 1996, the Company entered into a $3,500,000 credit agreement
with Sirrom Capital Corporation ("Sirrom") which matures November 2001 (the
"Sirrom Credit Agreement"). Borrowings under this line of credit bear interest
at 14% and are secured by substantially all assets of the Company and all
common shares of the principal stockholders. In connection with the Sirrom
Credit Agreement, the Company issued warrants to Sirrom to purchase 487,247
shares of the Company's common stock (Note 5). Upon their issuance, the value
of these warrants was determined to be approximately $461,000 based on the
relative fair value of the warrants to the line of credit. A corresponding
amount of the loan proceeds has been allocated to the warrants and has been
accounted for as debt discount and warrants with redemption feature in the
accompanying consolidated balance sheet.
In June 1997, the Company entered into a revolving credit facility with a
bank (the "Credit Facility"). The Credit Facility is available to the Company
up to $11,500,000, or such lesser amount as is determined to be available
under the terms of the credit facility, and matures October 2000. Through
December 31, 1997, the availability of credit under the Credit Facility is
determined based on two and one-half times the Company's earnings before
interest, taxes, depreciation, and amortization for the last twelve months.
After December 31,
F-10
CHECK INTO CASH, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
1997, the availability of credit is determined based on two times the
Company's earnings before interest, taxes, depreciation, and amortization for
the last twelve months.
Borrowings outstanding under the Credit Facility bear interest at a variable
rate (8.97% at December 31, 1997) based on LIBOR plus a rate margin that
fluctuates on the basis of the Company's leverage ratio. The maximum rate
margin is 3%.
Among other restrictions, the Credit Facility contains covenants relating to
tangible net worth, leverage ratio, and ratio of held checks to indebtedness,
as defined in the agreement. The Credit Facility is secured by substantially
all of the Company's assets and is guaranteed by all of the Company's
subsidiaries and by the Company's principal stockholder.
At December 31, 1997, aggregate maturities of long-term debt are as follows:
1998.............................. $ 45,587
1999.............................. 0
2000.............................. 5,494,930
2001.............................. 3,500,000
----------
$9,040,517
==========
On June 26, 1998, the Company entered into an amendment to its credit
agreement with Sirrom which allows the Company to borrow up to an additional
$3,500,000 through 2003. Borrowings under this amended agreement are made in
increments of no less than $250,000 and bear interest at 14%. In connection
with this amended agreement, the Company issued warrants to purchase .25% (on
a pro rata basis, determined by each draw) of the fully diluted outstanding
common stock at $.01 per share beginning October 15, 1998 if borrowings are
then outstanding. The full .25% will be earned on January 21, 1999 if any
portion of the loan is still outstanding at that date. If any portion of the
loan remains outstanding on June 26, 1999, the warrant will increase to 1.5%
of the fully diluted common stock then outstanding. On June 26, 2001, if
borrowings remain outstanding, additional shares will accrue at the rate of
.25% per year until maturity. Sirrom has the option to require the Company to
redeem the warrants for a period of 60 days after the maturity of the line of
credit, at a purchase price equal to fair market value, as defined.
4. INCOME TAXES
Taxable income or loss of all companies, except for Creditcorp of Tennessee,
Inc. and Check Into Cash Holdings, Inc., is reported by the owners/members on
their respective individual income tax returns. Accordingly, no provision for
income taxes is recorded in the accompanying consolidated statement of income
for these companies.
The following is a reconciliation of income taxes at the federal statutory
rate to income taxes recorded by the Company for the years ended December 31,
1995, 1996 and 1997:
1995 1996 1997
-------- --------- ---------
Income tax provision (benefit) computed at
the federal statutory rate............... $299,053 $ 766,915 $(296,395)
Effect of income or loss of nontaxable
subsidiaries............................. (33,831) (309,727) (261,872)
State income tax provision (benefit) of
taxable
subsidiaries, net of federal income tax
benefit.................................. 54,815 53,248 (71,078)
Other, net................................ 26,503 4,673 35,109
-------- --------- ---------
$346,540 $ 515,109 $(594,236)
======== ========= =========
F-11
CHECK INTO CASH, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
Deferred income tax assets and liabilities for 1996 and 1997 reflect the
impact of temporary differences between the amounts of assets and liabilities
for financial reporting and income tax reporting purposes. Temporary
differences that give rise to deferred tax assets and liabilities at December
31, 1996 and 1997 are as follows:
1996 1997
------- --------
Deferred tax assets:
Allowance for uncollectible checks..................... $23,000 $ 13,744
Accrued litigation settlement.......................... 0 836,000
Other.................................................. 7,400 36,255
------- --------
Deferred tax assets.................................. 30,400 885,999
Deferred tax liability:
Depreciation........................................... 7,000 7,000
------- --------
Net deferred tax assets.............................. $23,400 $878,999
======= ========
As discussed in Note 2, effective January 1, 1998, Creditcorp elected to be
taxed under the provisions of Subchapter S of the Internal Revenue Code. As
such, the taxable income or losses of Creditcorp will be included in the
individual tax returns of the Company's stockholders for federal income tax
purposes. On January 1, 1998, in connection with this election, the Company
eliminated $708,580 of previously recognized net deferred federal tax
benefits.
As discussed in Note 2, in connection with the Offering, the Company will
convert from an S corporation to a C corporation. Following the Offering, the
Company will make a distribution to its current stockholders to pay income
taxes, the amount of which is not presently determinable, on earnings for the
period from January 1, 1998 through the date of the termination of S
corporation status. Additionally, proceeds of approximately $3,900,000 from
the Offering will be used to fund a distribution of previously undistributed S
corporation earnings on which the stockholders have paid taxes.
Upon conversion to C corporation status, the Company will record deferred
taxes for which it will be responsible. If the S corporation status had been
terminated as of June 30, 1998, the Company would have recorded the following
pro forma net deferred tax asset:
Deferred tax assets:
Depreciation................................................... $256,000
Allowance for uncollectible checks............................. 100,700
--------
Deferred tax assets.......................................... 356,700
Deferred tax liability:
Deferred revenue............................................... 190,700
--------
Net pro forma deferred tax asset............................. $166,000
========
The accompanying financial statements reflect a provision for (benefit from)
income taxes on a pro forma basis as if the Company were a taxable corporate
entity throughout the periods presented. The difference between the federal
statutory income tax rate and the Company's pro forma effective tax rate
results from state income taxes, net of the federal income tax benefit.
F-12
CHECK INTO CASH, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
5. WARRANTS WITH REDEMPTION FEATURE
In connection with the issuance of the Sirrom Credit Agreement (Note 3), the
Company issued warrants to purchase 487,247 shares of common stock. In the
event that the Sirrom Credit Agreement remains outstanding on November 8,
1999, Sirrom will receive an additional 51,561 shares of common stock; if the
Sirrom Note remains outstanding on November 8, 2000, Sirrom will receive an
additional 52,115 shares of common stock, at an exercise price of $0.01 per
percentage of ownership. As discussed in Note 3, the value assigned to these
warrants was $461,000.
Sirrom has the option to require the Company to redeem the warrants for a
period of 30 days prior to the expiration of the Sirrom Note in November 2001,
at a purchase price equal to fair market value, as defined. Upon completion of
an initial public offering by the Company, the redemption right terminates.
Accordingly, in periods prior to an initial public offering, the Company has
accounted for the warrants as temporary equity under EITF 88-9, "Put
Warrants." The excess of the redemption value over the carrying value is being
accrued by periodic charges to retained earnings over the redemption period.
This accrual amounted to $32,181 and $418,118 for the year ended December 31,
1997 and the six months ended June 30, 1998, respectively. Upon the completion
of an initial public offering, the value of the warrants will be transferred
to permanent equity.
6. STOCKHOLDERS' EQUITY
Common Stock
The holders of common stock shall be entitled to one vote for each share of
such stock held by such holder. The holders of common stock are entitled to
participate share for share in and cash or stock dividend and to receive pro
rata the net assets of the Corporation upon liquidation.
During 1997, the Company amended its Articles of Incorporation and increased
the number of authorized shares of common stock to 5,000,000 shares. The
Company's board of directors approved a 1,000-for-1 split of its common stock
in the form of a stock dividend to stockholders of record as of May 12, 1997.
All references to the number of common shares and per share amounts in the
consolidated financial statements and related footnotes have been restated as
appropriate to give effect to the split for all periods presented.
On January 10, 1997 and August 1, 1997, the Company's board of directors
granted 89,880 and 179,760 shares, respectively, of common stock to a Company
officer under the Company's long-term incentive plan (Note 7).
Preferred Stock
During 1997, the Board of Directors approved the authorization of 1,000,000
shares of preferred stock with $.01 par value per share. The preferred stock
may be of one or more classes or series thereof, as determined by the Board of
Directors with each class having the voting powers, preferences and other
rights as determined by the Board of Directors. At December 31, 1997, no
shares of preferred stock were issued and outstanding.
F-13
CHECK INTO CASH, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
Unaudited Pro Forma Stockholders' Equity
Unaudited pro forma stockholders' equity at June 30, 1998 assumes the
distribution of $3.9 million of previously undistributed S corporation
earnings, the Company's conversion from an S corporation to a C corporation,
and the termination of the redemption rights under the warrants with
redemption feature.
7. LONG-TERM INCENTIVE PLAN
In 1997, the Company's board of directors approved a long-term incentive
plan for employees (the "Incentive Plan"). At the discretion of the board of
directors, awards of stock, stock options, or other stock rights may be
granted to employees, officers, directors, or consultants. Such awards are
intended to constitute qualified performance-based compensation under Internal
Revenue Code Section 162(m).
On January 10, 1997 and August 1, 1997, the Company issued 89,880 and
179,760 shares, respectively, of common stock to an officer of the Company.
Based on the estimated fair value at the dates of grant, the Company recorded
$266,400 of compensation expense related to this stock issuance.
On August 1, 1997, the Company granted 55,359 stock options to an employee.
These options vest over three years and expire after ten years. All options
will immediately vest upon the completion of the initial public offering.
Although the Company adopted SFAS No. 123, "Accounting for Stock-Based
Compensation," during 1997, it elected to continue to account for compensation
expense for stock options granted under its Incentive Plan under APB No. 25.
Accordingly, no compensation expense has been recognized for the Company's
stock option grant since the options have an exercise price in excess of the
market value at the date of grant.
For FASB No. 123 purposes, the fair value of the Company's stock option
grant during the year ended December 31, 1997 has been estimated as of the
date of grant using the minimum-value option-pricing model with the following
assumptions: risk-free interest rate of 6.06%, expected dividend yield of 0%,
and expected life of 5 years. There were no stock options issued or
outstanding during 1995 and 1996.
The following table summarizes the stock option transactions under the
Incentive Plan:
SHARES UNDER WEIGHTED AVERAGE
OPTION EXERCISE PRICE
------------ ----------------
Outstanding at December 31, 1996............. 0 0
Granted...................................... 55,359 $1.81
------ -----
Outstanding at December 31, 1997............. 55,359 $1.81
====== =====
At December 31, 1997, the options had a remaining contractual life of 9.6
years. None of the options were exercisable as of December 31, 1997. The
weighted average fair value of the options granted during the year ended
December 31, 1997 was $0.99.
On May 1, 1998, the Company granted 308,985 stock options to two officers of
the Company. These options vest over three years and expire after ten years.
Upon the completion of the initial public offering, 57,299 of these options
will immediately vest.
F-14
CHECK INTO CASH, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
8. RELATED PARTY TRANSACTIONS
The Company leases certain office space from other entities affiliated with
the Company by common ownership. Rental expense on these leases amounted to
$32,200, $56,400, and $144,060 for the years ended December 31, 1995, 1996,
and 1997.
Jones Management Services, LLC provides executive management and advisory
services to certain entities owned by the principal owner. Fees for these
services totaled $0, $106,180, and $388,087 for the years ended December 31,
1995, 1996, and 1997, respectively, and are included in revenues in the
consolidated statements of operations.
The Company leases an aircraft from a company affiliated with the Company by
common ownership. Aircraft expenses for the years ended December 31, 1995,
1996, and 1997 totaled $0, $232,281, and $294,509, respectively.
9. COMMITMENTS AND CONTINGENCIES
Leases
The Company leases certain facilities under operating leases. Lease terms
generally cover periods from three to five years. The following summarizes the
future minimum lease payments under operating lease obligations:
1998.............................. $2,026,217
1999.............................. 1,693,223
2000.............................. 1,070,557
2001.............................. 420,621
2002.............................. 251,388
2003 and thereafter............... 205,180
Contingencies
On April 3, 1996, a class action lawsuit was filed against Creditcorp of
Tennessee, Inc. and W. Allan Jones, Jr., individually, in the Circuit Court
for Bradley County, Tennessee. These lawsuits, which alleged common law fraud
as well as violations of the Federal Truth in Lending Act, the Tennessee usury
statute, and the Tennessee Consumer Protection Act, sought injunctive relief
and money damages.
In May 1997, the State of Tennessee enacted legislation, the Deferred
Presentation Services Act, which specifically stated that the fee charged by
Creditcorp of Tennessee, Inc. is to be characterized as a fee for service, not
interest, and that the transaction was not a loan, but a deferred presentation
transaction. This law, had it been in effect prior to the litigation, would
have negated such a cause against the Company.
On January 21, 1998, pursuant to a settlement reached in September 1997 by
the parties, the court issued a final judgment and order of settlement, which
became final on February 20, 1998. The total obligation of Creditcorp of
Tennessee, Inc. under this settlement was $2,200,000 payable as follows:
February 19, 1998................. $ 303,000
September 30, 1998................ 199,000
October 30, 1998.................. 1,330,000
January 15, 1999.................. 230,000
January 15, 2000.................. 138,000
F-15
CHECK INTO CASH, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
The current portion of this obligation has been included in accrued
liabilities and the non-current portion as other liabilities in the
accompanying financial statements.
On July 9, 1998, representative plaintiffs filed a motion alleging that the
Company collected and continues to collect money from class members for
transactions which occurred prior to October 1, 1997, and that such
collections violate the judgment and orders of the Court. The Company does not
believe that the motion will result in a material liability to the Company and
intends to vigorously defend against it.
On April 28, 1998, a class action lawsuit was filed against Check Into Cash
of Kentucky, LLC, a wholly owned subsidiary of the Company (the "Subsidiary")
and W. Allan Jones, Jr. in the United States District Court of Eastern
Kentucky. The lawsuit claims violations of the Federal Truth in Lending Act
("TILA"), the Kentucky Disclosure of Finance Charge on Installment Credit
Transaction Act, the Kentucky usury statute, the Kentucky Consumers Loans Act,
the Kentucky Consumer Protection Act and the RICO Act. The Subsidiary and Mr.
Jones have requested the Court to dismiss all counts for failure to state a
claim and for lack of personal jurisdiction over Mr. Jones. The Subsidiary has
asserted its licensure under the Kentucky Check Cashing Act as a complete
defense. As of this date, this suit is in its preliminary stage of litigation.
The Company believes the suit to be without merit and intends to defend it
vigorously.
10. DEFINED CONTRIBUTION PLAN
The Company has a defined contribution plan covering all eligible full-time
employees. Eligible participants may contribute up to 15% of their salary and
receive a 50% matching employer contribution up to 6% of their salary. Under
the terms of the plan, the Company may also make discretionary profit-sharing
contributions. Company matching to the plan for the years ended December 31,
1995, 1996, and 1997 was approximately $3,496, $6,000, and $25,044. During
1995, 1996, and 1997, no discretionary profit-sharing contributions were made
by the Company.
11. INITIAL PUBLIC OFFERING
In the third quarter of 1998, the Company plans to sell approximately
shares of common stock at an estimated initial public offering price of $ -
$ per share in an initial public offering. There can be no assurance,
however, that the initial public offering will be completed at a per share
price within the estimated range or completed at all.
In contemplation of the initial public offering, the Company effected a
7.49-for-1 stock split (in the form of a stock dividend) resulting in
9,257,640 shares of common stock outstanding. All amounts in the accompanying
financial statements have been retroactively adjusted to give effect to this
stock split.
F-16
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
NO DEALER, SALESPERSON OR ANY OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATION IN CONNECTION WITH THIS OFFERING
OTHER THAN THOSE CONTAINED IN THIS PROSPECTUS, AND, IF GIVEN OR MADE, SUCH IN-
FORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED
BY ANY UNDERWRITER OR THE COMPANY OR ANY SELLING SHAREHOLDER. THIS PROSPECTUS
DOES NOT CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF AN OFFER TO BUY THE
COMMON STOCK BY ANYONE IN ANY JURISDICTION IN WHICH SUCH OFFER OR SOLICITATION
IS NOT AUTHORIZED, OR IN WHICH THE PERSON MAKING SUCH OFFER OR SOLICITATION IS
NOT QUALIFIED TO DO SO, OR TO ANYONE TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER
OR SOLICITATION. NEITHER THE DELIVERY OF THIS PROSPECTUS NOR ANY SALE MADE
HEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE ANY IMPLICATION THAT THERE
HAS BEEN NO CHANGE IN THE AFFAIRS OF THE COMPANY SINCE THE DATE HEREOF.
---------------
TABLE OF CONTENTS
PAGE
----
Prospectus Summary....................................................... 3
Risk Factors............................................................. 7
Prior S Corporation Status............................................... 14
Use of Proceeds.......................................................... 14
Dividend Policy.......................................................... 15
Capitalization........................................................... 16
Dilution................................................................. 17
Selected Consolidated Financial and Operating Data....................... 18
Management's Discussion and Analysis of Financial Condition and Results
of Operations........................................................... 20
Business................................................................. 30
Management............................................................... 40
Certain Transactions..................................................... 46
Principal and Selling Stockholders....................................... 48
Description of Capital Stock............................................. 49
Shares Eligible for Future Sale.......................................... 52
Underwriting............................................................. 54
Legal Matters............................................................ 55
Experts.................................................................. 55
Available Information.................................................... 55
Index to Financial Statements............................................ F-1
UNTIL , 1998 (25 DAYS AFTER THE DATE OF THIS PROSPECTUS), ALL DEALERS EF-
FECTING TRANSACTIONS IN THE REGISTERED SECURITIES, WHETHER OR NOT PARTICIPAT-
ING IN THIS DISTRIBU-TION, MAY BE REQUIRED TO DELIVER A PROSPECTUS. THIS IS IN
ADDITION TO THE OBLIGATION OF DEALERS TO DELIVER A PROSPECTUS WHEN ACTING AS
UNDERWRITERS AND WITH RESPECT TO THEIR UNSOLD ALLOTMENTS OR SUBSCRIPTIONS.
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
SHARES
[LOGO]
CHECK INTO CASH, INC.
COMMON STOCK
---------------
PROSPECTUS
---------------
CIBC OPPENHEIMER
J.C. BRADFORD & CO.
, 1998
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 13. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the various expenses in connection with the
issuance and distribution of the securities being registered hereby, other
than underwriting discounts and commissions.
SEC registration fee............................................. $ 14,750
NASD filing fee.................................................. 5,500
Accounting fees and expenses*.................................... 250,000
Nasdaq National Market listing fee............................... 84,875
Legal fees and expenses*......................................... 300,000
Printing and engraving expenses*................................. 150,000
Blue Sky fees and expenses*...................................... 10,000
Transfer agent and registrar fees and expenses*.................. 15,000
Miscellaneous*................................................... 19,875
--------
Total*......................................................... $850,000
========
- --------
* Estimated solely for the purposes of this filing.
ITEM 14. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145(a) of the Delaware General Corporation Law ("DGCL") provides
that a Delaware corporation may indemnify any person who was or is a party or
is threatened to be made a party to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the corporation) by
reason of the fact that such person is or was a director, officer, employee or
agent of the corporation, or is or was serving at the request of the
corporation as a director, officer, employee or agent of another corporation
or enterprise, against expenses, judgments, fines and amounts paid in
settlement actually and reasonably incurred by such person in connection with
such action, suit or proceeding 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, had no cause to believe his or her conduct was unlawful.
Section 145(b) of the DGCL provides that a Delaware corporation may
indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action or suit by or in the right of
the corporation to procure a judgment in its favor by reason of the fact that
such person acted in any of the capacities set forth above, against expenses
actually and reasonably incurred by such person in connection with the defense
or settlement of such action or suit if he or she acted under similar
standards, except that no indemnification may be made in respect of any claim,
issue or matter as to which such person shall have been adjudged to be liable
for negligence or misconduct in the performance of his or her duty to the
corporation unless and only to the extent that the court in which such action
or suit was brought shall determine that, despite the adjudication of
liability but in view of all the circumstances of the case, such person is
fairly and reasonably entitled to be indemnified for such expenses which the
court shall deem proper.
Section 145 of DGCL further provides that to the extent a director or
officer of a corporation has been successful in the defense of any action,
suit or proceeding referred to in subsection (a) and (b) or in the defense of
any claim, issue or matter therein, such officer or director shall be
indemnified against expenses actually and reasonably incurred by him or her in
connection therewith; that indemnification provided for by Section 145 shall
not be deemed exclusive of any other rights to which the indemnified party may
be entitled; and that the
II-1
corporation may purchase and maintain insurance on behalf of a director or
officer of the corporation against any liability asserted against such officer
or director and incurred by him or her in any such capacity or arising out of
his or her status as such, whether or not the corporation would have the power
to indemnify him or her against such liabilities under Section 145.
As permitted by Section 102(b)(7) of the DGCL, the Company's Restated
Certificate of Incorporation ("Certificate"), provides that a director shall
not be liable to the Company or its stockholders for monetary damages for
breach of fiduciary duty as a director. However, such provision does not
eliminate or limit the liability of a director for acts or omissions not in
good faith or for breaching his or her duty of loyalty, engaging in
intentional misconduct or knowingly violating a law, paying a dividend or
approving a stock repurchase which was illegal, or obtaining an improper
personal benefit. A provision of this type has no effect on the availability
of equitable remedies, such as injunction or rescission, for breach of
fiduciary duty.
The Company's Restated Bylaws ("Bylaws") require the Company to indemnify
any person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (other than an action by or in the
right of the Company) by reason of the fact that he is or was a director,
officer or employee of the Company, or that being such a director, officer or
employee he is or was serving at the request of the Company as a director,
officer or employee of another corporation, partnership, joint venture, trust
or other enterprise, against expenses (including attorneys' fees), judgments,
fines and amounts paid in settlement actually and reasonably incurred by him
in connection with such action, suit or proceeding if he acted in good faith
and in a manner he reasonably believed to be in or not opposed to the best
interests of the Company, and with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful. The
termination of any action, suit or proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent, does not, of
itself, create a presumption that the person did not act in good faith and in
a manner which he reasonably believed to be in or not opposed to the best
interests of the Company, and, with respect to any criminal action or
proceeding, that he had reasonable cause to believe that his conduct was
unlawful.
In addition, the Company's Bylaws require the Company to indemnify any
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in the right of the
Company to procure a judgment in its favor by reason of the fact that he is or
was a director, officer, employee or agent of the Company, or that being such
a director, officer or employee he is or was serving at the request of the
Company as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit if he acted
in good faith and in a manner he reasonably believed to be in or not opposed
to the best interests of the Company, except that no indemnification may be
made in respect of any claim, issue or matter as to which such person shall
have been adjudged to be liable for negligence or misconduct in the
performance of his duty to the Company unless and only to the extent that the
Court of Chancery or the court in which such action or suit was brought shall
determine upon application that, despite the adjudication of liability but in
view of all the circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expenses which the Court of Chancery
or such other court shall deem proper.
Any indemnification (unless ordered by a court) made by the Company may be
only as authorized in the specific case upon a determination that
indemnification of the director, officer, employee or agent is proper in the
circumstances because he has met the applicable standard of conduct as set
forth above. Such determination must be made (i) by the Board by a majority
vote of a quorum consisting of directors who were not parties to such action,
suit or proceeding, or (ii) if such a quorum is not obtainable, or, even if
obtainable, a quorum of disinterested directors so directs, by independent
legal counsel in a written opinion, or (iii) by the stockholders.
To the extent that a director, officer, employee or agent of the Company has
been successful on the merits or otherwise in defense of any covered action,
suit or proceeding, or in defense of any covered claim, issue or
II-2
matter therein, he will be indemnified against expenses (including attorneys'
fees) actually and reasonably incurred by him in connection therewith.
Expenses incurred by an officer or director in defending a civil or criminal
action, suit or proceeding may be paid by the Company in advance of the final
disposition of such action, suit or proceeding as authorized by the Board in
the specific case upon receipt of an undertaking by or on behalf of the
director or officer to repay such amount unless it shall ultimately be
determined that he is entitled to be indemnified by the Company as authorized
in the Bylaws. Such expenses incurred by other employees and agents may be so
paid upon such terms and conditions, if any, as the Board deems appropriate.
The Company maintains policies of directors' and officers' liability
insurance.
ITEM 15. RECENT SALES OF UNREGISTERED SECURITIES
On November 8, 1996, the Company issued to Sirrom warrants to purchase
486,768 shares of Common Stock in a transaction exempt from registration under
the Securities Act pursuant to Section 4(2) of the Securities Act.
On January 1, 1997, the Company issued and sold 7,415,000 shares of Common
Stock in exchange for the shares of Creditcorp, Inc. and member interests in
Creditcorp of Kentucky, LLC, Creditcorp of Indiana, LLC and Creditcorp of
Wisconsin, LLC in a transaction exempt from registration under the Securities
Act pursuant to Rule 505 of Regulation D. The shares of Common Stock were
offered to and purchased by a limited number of accredited investors,
including certain directors and executive officers of the Company.
On January 10, 1997, the Company issued 89,880 shares of restricted Common
Stock to Steve Scoggins, an executive officer and director of the Company, in
a transaction exempt from registration under the Securities Act pursuant to
Section 4(2) of the Securities Act.
On March 31, 1997, the Company issued and sold 749,000 shares of Common
Stock in exchange for the member interests in Check Into Cash of Ohio, LLC in
a transaction exempt from registration under the Securities Act pursuant to
Rule 505 of Regulation D. The shares of Common Stock were offered to and
purchased by a limited number of accredited investors, including certain
directors and executive officers of the Company.
On May 2, 1997, the Company issued 14,980 shares of restricted Common Stock
to Steve Scoggins, an executive officer and director of the Company, in a
transaction exempt from registration under the Securities Act pursuant to
Section 4(2) of the Securities Act. The shares were canceled as of July 1,
1997.
On May 31, 1997, the Company issued and sold 749,000 shares of Common Stock
in exchange for the member interests in Creditcorp of Illinois, LLC in a
transaction exempt from registration under the Securities Act pursuant to Rule
505 of Regulation D. The shares of Common Stock were offered to and purchased
by a limited number of accredited investors, including certain directors and
executive officers of the Company.
On August 1, 1997, the Company issued 179,760 shares of Common Stock to
Steve Scoggins, an executive officer and director of the Company, in a
transaction exempt from registration under the Securities Act pursuant to
Section 4(2) of the Securities Act.
II-3
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
(a) The following exhibits are filed as a part of this Registration
Statement:
1 Underwriting Agreement*
3.1 Restated Certificate of Incorporation of Check Into Cash, Inc.*
3.2 Restated Bylaws of Check Into Cash, Inc.*
5 Opinion of Alston & Bird LLP*
10.1 Check Into Cash, Inc. Amended and Restated 1997 Long-Term Incentive
Plan, dated as of May 1, 1998
10.2 Loan Agreement, dated as of June 2, 1997, by and between Check Into
Cash, Inc. and NationsBank of Tennessee, N.A., as amended
10.3 Amended and Restated Loan Agreement, dated as of February 28, 1997, by
and between Check Into Cash, Inc. and Sirrom Capital Corporation
10.4.1 Amended and Restated Stock Purchase Warrant, dated February 28, 1997,
by and between Check into Cash, Inc. and Sirrom Capital Corporation
10.4.2 Stock Purchase Warrant, dated June 26, 1998, by and between Check Into
Cash, Inc. to Sirrom Capital Corporation
10.5 Aircraft Lease, dated as of November 14, 1997, by and between Jones
Airways, LLC and Check Into Cash, Inc.
10.6.1 Employment Agreement, dated as of July 3, 1997, by and between Check
Into Cash, Inc. and Steve Scoggins
10.6.2 Employment, Confidentiality and Non-Competition Agreement, dated as of
August 1, 1997, by and between Check Into Cash, Inc. and Ed Ryan.
10.6.3 Employment Agreement, dated as of April 28, 1998, by and among Check
Into Cash, Inc., W. Allan Jones Jr. and J. Samuel Choate, Jr.
10.6.4 Employment, Confidentiality and Non-Competition Agreement, dated as of
May 1, 1998, by and between Check Into Cash, Inc. and Frederick Krosner
21 Subsidiaries of the Registrant
23.1 Consent of Alston & Bird LLP (Included in Exhibit 5)
23.2 Form of Consent of Arthur Andersen LLP
24 Power of Attorney (included in Part II of the Registration Statement)
27 Financial Data Schedule
- --------
* To be filed by amendment
(b) The following Financial Statement Schedules of Check Into Cash, Inc. are
included in this Registration Statement:
Report of Independent Public Accountants............................... S-1
Schedule II--Valuation and Qualifying Accounts......................... S-2
ITEM 17. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes to provide to the
Underwriters at the closing specified in the Underwriting Agreement
certificates in such denomination and registered in such names as required by
the Underwriters to permit prompt delivery to each purchaser.
II-4
(b) 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 of the
registrant 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 is against public policy as expressed in
the Act and will be governed by the final adjudication of such issue.
(c) The undersigned Registrant hereby undertakes that:
(1) For the purposes of determining any liability under the Securities
Act, the information omitted from the form of prospectus filed as part of
this Registration Statement in reliance upon Rule 430A and contained in a
form of prospectus filed by the Registrant pursuant to Rule 424(b)(1) or
(4), or 497(h) under the Securities Act, shall be deemed to be part of this
Registration Statement as of the time it was declared effective.
(2) For the purposes of determining any liability under the Securities
Act, each post-effective amendment that contains a form of prospectus 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.
II-5
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THE REGISTRANT
HAS DULY CAUSED THIS REGISTRATION STATEMENT TO BE SIGNED ON ITS BEHALF BY THE
UNDERSIGNED, THEREUNTO DULY AUTHORIZED, IN THE CITY OF CLEVELAND, STATE OF
TENNESSEE, ON THE 31ST DAY OF JULY, 1998.
CHECK INTO CASH, INC.
/s/ W. Allan Jones, Jr.
By: _________________________________
W. ALLAN JONES, JR.
CHAIRMAN OF THE BOARD,
CHIEF EXECUTIVE OFFICER AND
DIRECTOR
POWER OF ATTORNEY
Know All Men By These Presents, that each person whose signature appears
below constitutes and appoints W. Allan Jones, Jr. and J. Samuel Choate, Jr.,
or either of them, his true and lawful attorney-in-fact and agent, with full
power of substitution and resubstitution, for him and in his name, place and
stead, in any and all capacities, to sign any and all amendments (including
pre-effective and post-effective amendments) to this Registration Statement
and to sign any registration statement (and any post-effective amendments
thereto) effective upon filing pursuant to Rule 462(b) under the Securities
Act of 1933, and to file the same, with all exhibits thereto, and other
documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorney-in-fact and agent 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
purposed as he might or could do in person, hereby ratifying and confirming
that said attorney-in-fact, agent or their 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 JULY 31, 1998.
SIGNATURE TITLE
--------- -----
/s/ W. Allan Jones, Jr. Chairman of the Board, Chief Executive Officer
______________________________________ and Director (Principal Executive Officer)
W. ALLAN JONES, JR.
/s/ Steve M. Scoggins President and Director
______________________________________
STEVE M. SCOGGINS
/s/ Frederick Krosner Executive Vice President, Treasurer and
______________________________________ Controller, and Director (Principal Financial
FREDERICK KROSNER and Accounting Officer)
II-6
After the stock split discussed in Note 11 to Check into Cash, Inc.'s
consolidated financial statements is affected, we expect to be in a position
to render the following audit report.
ARTHUR ANDERSEN LLP
Chattanooga, Tennessee
July 9, 1998
REPORT OF INDEPENDENT PUBLIC ACCOUNTANTS
To Check into Cash, Inc.:
We have audited in accordance with generally accepted auditing standards,
the consolidated financial statements of Check Into Cash, Inc. included in
this registration statement and have issued our report thereon dated ,
1998. Our audit was made for the purpose of forming an opinion on the basic
consolidated financial statements taken as a whole. The schedule listed in the
index is the responsibility of the Company's management and is presented for
purposes of complying with the Securities and Exchange Commission's rules and
are not part of the basic financial statements. The schedule has been
subjected to the auditing procedures applied in the audit of the basic
financial statements and, in our opinion, fairly states in all material
respects the financial data required to be set forth therein in relation to
the basic financial statements taken as a whole.
S-1
CHECK INTO CASH, INC.
SCHEDULE II--VALUATION AND QUALIFYING ACCOUNTS
ADDITIONS
----------------
BALANCE AT CHARGED TO WRITE OFFS, BALANCE AT
BEGINNING COSTS AND NET OF END OF
OF PERIOD EXPENSES OTHER RECOVERIES PERIOD
---------- ---------- ----- ----------- ----------
Year ended 12/31/97
Allowance for uncollecti-
ble checks............... $135,000 $1,196,469 -- $(1,076,469) $255,000
Year ended 12/31/96
Allowance for uncollecti-
ble checks............... 53,762 438,551 -- (357,313) 135,000
Year ended 12/31/95
Allowance for uncollecti-
ble checks............... 11,631 113,931 -- (71,800) 53,762
S-2
EXHIBIT INDEX
(a) The following exhibits are filed as a part of this Registration
Statement:
1 Underwriting Agreement*
3.1 Restated Certificate of Incorporation of Check Into Cash, Inc.*
3.2 Restated Bylaws of Check Into Cash, Inc.*
5 Opinion of Alston & Bird LLP*
10.1 Check Into Cash, Inc. Amended and Restated 1997 Long-Term Incentive
Plan, dated as of May 1, 1998
10.2 Loan Agreement, dated as of June 2, 1997, by and between Check Into
Cash, Inc. and NationsBank of Tennessee, N.A., as amended
10.3 Amended and Restated Loan Agreement, dated as of February 28, 1997, by
and between Check Into Cash, Inc. and Sirrom Capital Corporation
10.4.1 Amended and Restated Stock Purchase Warrant, dated February 28, 1997,
by and between Check into Cash, Inc. and Sirrom Capital Corporation
10.4.2 Stock Purchase Warrant, dated June 26, 1998, by and between Check Into
Cash, Inc. to Sirrom Capital Corporation
10.5 Aircraft Lease, dated as of November 14, 1997, by and between Jones
Airways, LLC and Check Into Cash, Inc.
10.6.1 Employment Agreement, dated as of July 3, 1997, by and between Check
Into Cash, Inc. and Steve Scoggins
10.6.2 Employment, Confidentiality and Non-Competition Agreement, dated as of
August 1, 1997, by and between Check Into Cash, Inc. and Ed Ryan.
10.6.3 Employment Agreement, dated as of April 28, 1998, by and among Check
Into Cash, Inc., W. Allan Jones Jr. and J. Samuel Choate, Jr.
10.6.4 Employment, Confidentiality and Non-Competition Agreement, dated as of
May 1, 1998, by and between Check Into Cash, Inc. and Frederick Krosner
21 Subsidiaries of the Registrant
23.1 Consent of Alston & Bird LLP (Included in Exhibit 5)
23.2 Form of Consent of Arthur Andersen LLP
24 Power of Attorney (included in Part II of the Registration Statement)
27 Financial Data Schedule
- --------
* To be filed by amendment
(b) The following Financial Statement Schedules of Check Into Cash, Inc. are
included in this Registration Statement:
Report of Independent Public Accountants............................... S-1
Schedule II--Valuation and Qualifying Accounts......................... S-2
EX-10.1
2
CHECK INTO CASH, INC. AMENDED AND RESTATED
EXHIBIT 10.1
CHECK INTO CASH, INC.
AMENDED AND RESTATED
1997 LONG-TERM INCENTIVE PLAN
ARTICLE I
PURPOSE
1.1 GENERAL. The purpose of the Check into Cash, Inc. Amended and
-------
Restated 1997 Long-Term Incentive Plan (the "Plan") is to promote the success,
and enhance the value, of Check into Cash, Inc. (the "Corporation"), by linking
the personal interests of its employees, officers and directors to those of
Corporation stockholders and by providing such persons with an incentive for
outstanding performance. The Plan is further intended to provide flexibility to
the Corporation in its ability to motivate, attract, and retain the services of
persons upon whose judgment, interest, and special effort the successful conduct
of the Corporation's operation is largely dependent. Accordingly, the Plan
permits the grant of incentive awards from time to time to selected employees,
officers and directors. From and after the date, if any, upon which the
Corporation's common stock shall be traded on a national securities exchange or
on the Nasdaq National Market, consultants of the Corporation will also be
eligible to receive Awards under the Plan.
ARTICLE 2
EFFECTIVE DATE
2.1 EFFECTIVE DATE. The Plan shall be effective as of the date upon which
--------------
it shall be approved by the Board. However, the Plan shall be submitted to the
stockholders of the Corporation for approval within 12 months of the Board's
approval thereof. No Incentive Stock Options granted under the Plan may be
exercised prior to approval of the Plan by the stockholders and if the
stockholders fail to approve the Plan within 12 months of the Board's approval
thereof, any Incentive Stock Options previously granted hereunder shall be
automatically converted to Non-Qualified Stock Options without any further act.
In the discretion of the Committee, Awards may be made to Covered Employees
which are intended to constitute qualified performance-based compensation under
Code Section 162(m). Any such Awards shall be contingent upon the stockholders
having approved the Plan.
ARTICLE 3
DEFINITIONS
3.1 DEFINITIONS. When a word or phrase appears in this Plan with the
-----------
initial letter capitalized, and the word or phrase does not commence a sentence,
the word or phrase shall generally be given the meaning ascribed to it in this
Section or in Section 1.1 unless a clearly different meaning is required by the
context. The following words and phrases shall have the following meanings:
(a) "Award" means any Option, Stock Appreciation Right, Restricted
Stock Award, Performance Share Award, Dividend Equivalent Award, or Other
Stock-Based
Award, or any other right or interest relating to Stock or cash, granted to
a Participant under the Plan.
(b) "Award Agreement" means any written agreement, contract, or other
instrument or document evidencing an Award.
(c) "Board" means the Board of Directors of the Corporation.
(d) "Change in Control" means and includes each of the following:
(1) The acquisition by any individual, entity or group (within
the meaning of Section 13(d)(3) or 14(d)(2) of the 1934 Act) (a
"Person") of beneficial ownership (within the meaning of Rule 13d-3
promulgated under the 1934 Act) of 25% or more of the combined voting
power of the then outstanding voting securities of the Corporation
entitled to vote generally in the election of directors (the
"Outstanding Company Voting Securities"); provided, however, that for
purposes of this subsection (1), the following acquisitions shall not
constitute a Change of Control: (i) any acquisition by a Person who is
on the Effective Date the beneficial owner of 25% or more of the
Outstanding Company Voting Securities, (ii) any acquisition directly
from the Corporation, including without limitation a public offering
of securities, (iii) any acquisition by the Corporation, (iv) any
acquisition by any employee benefit plan (or related trust) sponsored
or maintained by the Corporation or any corporation controlled by the
Corporation, or (v) any acquisition by any corporation pursuant to a
transaction which complies with clauses (i), (ii) and (iii) of
subsection (3) of this definition; or
(2) Individuals who, as of the Effective Date, constitute the
Board (the "Incumbent Board") cease for any reason to constitute at
least a majority of the Board; provided, however, that any individual
becoming a director subsequent to the Effective Date whose election,
or nomination for election by the Corporation's stockholders, was
approved by a vote of at least a majority of the directors then
comprising the Incumbent Board shall be considered as though such
individual were a member of the Incumbent Board, but excluding, for
this purpose, any such individual whose initial assumption of office
occurs as a result of an actual or threatened election contest with
respect to the election or removal of directors or other actual or
threatened solicitation of proxies or consents by or on behalf of a
Person other than the Board; or
(3) Consummation of a reorganization, merger or consolidation to
which the Corporation is a party or a sale or other disposition of all
or substantially all of the assets of the Corporation (a "Business
Combination"), in each case, unless, following such Business
Combination, (i) all or substantially all of the individuals and
entities who were the beneficial owners of the Outstanding Company
Voting Securities immediately prior to such Business Combination
beneficially own, directly or indirectly, more than 50% of the
combined voting
-2-
power of the then outstanding voting securities entitled to vote
generally in the election of directors of the corporation resulting
from such Business Combination (including, without limitation, a
corporation which as a result of such transaction owns the Corporation
or all or substantially all of the Corporation's assets either
directly or through one or more subsidiaries) in substantially the
same proportions as their ownership, immediately prior to such
Business Combination of the Outstanding Company Voting Securities, and
(ii) no Person (excluding any corporation resulting from such Business
Combination or any employee benefit plan (or related trust) of the
Corporation or such corporation resulting from such Business
Combination) beneficially owns, directly or indirectly, 25% or more of
the combined voting power of the then outstanding voting securities of
the corporation resulting from such Business Combination except to the
extent that such ownership existed prior to the Business Combination,
and (iii) at least a majority of the members of the board of directors
of the corporation resulting from such Business Combination were
members of the Incumbent Board (including persons deemed to be members
of the Incumbent Board by reason of the proviso to subsection (2) of
this definition at the time of the execution of the initial agreement,
or of the action of the Board, providing for such Business
Combination.
(e) "Code" means the Internal Revenue Code of 1986, as amended from
time to time.
(f) "Committee" means the committee of the Board described in Article
4.
(g) "Corporation" means Check into Cash, Inc., a Delaware corporation.
(h) "Covered Employee" means a covered employee as defined in Code
Section 162(m)(3), provided that no employee shall be a Covered Employee
until the deduction limitations of Section 162(m) are applicable to the
Corporation and any reliance period under Section 162(m) has expired, as
described in Section 16.15.
(i) "Disability" shall mean any illness or other physical or mental
condition of a Participant that renders the Participant incapable of
performing his customary and usual duties for the Corporation, or any
medically determinable illness or other physical or mental condition
resulting from a bodily injury, disease or mental disorder which, in the
judgment of the Committee, is permanent and continuous in nature. The
Committee may require such medical or other evidence as it deems necessary
to judge the nature and permanency of the Participant's condition.
(j) "Dividend Equivalent" means a right granted to a Participant under
Article 11.
(k) "Effective Date" has the meaning assigned such term in Section
2.1.
(l) "Fair Market Value," on any date, means (i) if the Stock is not
-3-
listed on a securities exchange or traded over the Nasdaq National Market
or otherwise publicly quoted or traded, Fair Market Value will be
determined by such method as the Committee determines in good faith to be
reasonable; (ii) if the Stock is listed on a securities exchange or is
traded over the Nasdaq National Market, the closing sales price on such
exchange or the last reported sale price over such system on such date or,
in the absence of reported sales on such date, the closing sales price or
last sale price, as applicable on the immediately preceding date on which
sales were reported; or (iii) if the Stock is not listed on a securities
exchange or traded over the Nasdaq National Market, the mean between the
bid and offered prices as quoted by Nasdaq or, if not quoted on Nasdaq,
other recognized quotations service selected by the Committee in good faith
for such date, provided that if it is determined that the fair market value
is not properly reflected by such Nasdaq quotations, Fair Market Value will
be determined by such other method as the Committee determines in good
faith to be reasonable.
(m) "Incentive Stock Option" means an Option that is intended to meet
the requirements of Section 422 of the Code or any successor provision
thereto.
(n) "Non-Qualified Stock Option" means an Option that is not an
Incentive Stock Option.
(o) "Option" means a right granted to a Participant under Article 7 of
the Plan to purchase Stock at a specified price during specified time
periods. An Option may be either an Incentive Stock Option or a Non-
Qualified Stock Option.
(p) "Other Stock-Based Award" means a right, granted to a Participant
under Article 12, that relates to or is valued by reference to Stock or
other Awards relating to Stock.
(q) "Parent" means a corporation which owns or beneficially owns a
majority of the outstanding voting stock or voting power of the
Corporation. For Incentive Stock Options, the term shall have the same
meaning as set forth in Code Section 424(e).
(r) "Participant" means a person who, as an officer, employee,
consultant or director of the Corporation or any Parent or Subsidiary, has
been granted an Award under the Plan.
(s) "Performance Share" means a right granted to a Participant under
Article 9, to receive cash, Stock, or other Awards, the payment of which is
contingent upon achieving certain performance goals established by the
Committee.
(t) "Plan" means the Check into Cash, Inc. 1997 Long-Term Incentive
Plan, as amended from time to time.
-4-
(u) "Restricted Stock Award" means Stock granted to a Participant
under Article 10 that is subject to certain restrictions and to risk of
forfeiture.
(v) "Retirement" means a Participant's termination of employment with
the Corporation, Parent or Subsidiary after attaining any normal or early
retirement age specified in any pension, profit sharing or other retirement
program sponsored by the Corporation, or, in the event of the
inapplicability thereof with respect to the person in question, as
determined by the Committee in its judgment.
(w) "Stock" means the $0.01 par value Common Stock of the Corporation
and such other securities of the Corporation as may be substituted for
Stock pursuant to Article 14.
(x) "Stock Appreciation Right" or "SAR" means a right granted to a
Participant under Article 8 to receive a payment equal to the difference
between the Fair Market Value of a share of Stock as of the date of
exercise of the SAR over the grant price of the SAR, all as determined
pursuant to Article 8.
(y) "Subsidiary" means any corporation, limited liability company,
partnership or other entity of which a majority of the outstanding voting
stock or voting power is beneficially owned directly or indirectly by the
Corporation. For Incentive Stock Options, the term shall have the meaning
set forth in Code Section 424(f).
(z) "1933 Act" means the Securities Act of 1933, as amended from time
to time.
(aa) "1934 Act" means the Securities Exchange Act of 1934, as amended
from time to time.
ARTICLE 4
ADMINISTRATION
4.1 COMMITTEE. The Plan shall be administered by the Compensation
---------
Committee of the Board or, at the discretion of the Board from time to time, by
the Board. The Committee shall consist of two or more members of the Board who
are both (i) "outside directors" as that term is used in Section 162(m) of the
Code and the regulations promulgated thereunder, to the extent Section 162(m) is
applicable to the Corporation as described in Section 16.15 hereof, and (ii)
"Non-Employee Directors" as that term is defined in Rule 16b-3 promulgated under
the 1934 Act, if and when such rule applies with respect to officers and
directors of the Corporation. Until such time as there shall be a Compensation
Committee of the Board, the Plan shall be administered by the full Board and the
Board shall have all the powers of the Committee hereunder, and any reference
herein to the Committee (other than in this Section 4.1) shall include the
Board.
-5-
4.2 ACTION BY THE COMMITTEE. For purposes of administering the Plan, the
-----------------------
following rules of procedure shall govern the Committee. A majority of the
Committee shall constitute a quorum. The acts of a majority of the members
present at any meeting at which a quorum is present and acts approved
unanimously in writing by the members of the Committee in lieu of a meeting
shall be deemed the acts of the Committee. Each member of the Committee is
entitled to, in good faith, rely or act upon any report or other information
furnished to that member by any officer or other employee of the Corporation or
any Parent or Subsidiary, the Corporation's independent certified public
accountants, or any executive compensation consultant or other professional
retained by the Corporation to assist in the administration of the Plan.
4.3 AUTHORITY OF COMMITTEE. The Committee has the exclusive power,
----------------------
authority and discretion to:
(a) Designate Participants;
(b) Determine the type or types of Awards to be granted to each
Participant;
(c) Determine the number of Awards to be granted and the number of
shares of Stock to which an Award will relate;
(d) Determine the terms and conditions of any Award granted under the
Plan, including but not limited to, the exercise price, grant price, or
purchase price, any restrictions or limitations on the Award, any schedule
for lapse of forfeiture restrictions or restrictions on the exercisability
of an Award, and accelerations or waivers thereof, based in each case on
such considerations as the Committee in its sole discretion determines;
(e) Accelerate the vesting or lapse of restrictions of any outstanding
Award, based in each case on such considerations as the Committee in its
sole discretion determines;
(f) Determine whether, to what extent, and under what circumstances an
Award may be settled in, or the exercise price of an Award may be paid in,
cash, Stock, other Awards, or other property, or an Award may be canceled,
forfeited, or surrendered;
(g) Prescribe the form of each Award Agreement, which need not be
identical for each Participant;
(h) Decide all other matters that must be determined in connection
with an Award;
(i) Establish, adopt or revise any rules and regulations as it may
deem necessary or advisable to administer the Plan; and
(j) Make all other decisions and determinations that may be required
under the Plan or as the Committee deems necessary or advisable to
administer the Plan, and
-6-
(k) Amend the Plan or any Award Agreement as provided herein.
4.4. DECISIONS BINDING. The Committee's interpretation of the Plan, any
-----------------
Awards granted under the Plan, any Award Agreement and all decisions and
determinations by the Committee with respect to the Plan are final, binding, and
conclusive on all parties.
ARTICLE 5
SHARES SUBJECT TO THE PLAN
5.1. NUMBER OF SHARES. Subject to adjustment as provided in Section 14.1,
----------------
the aggregate number of shares of Stock reserved and available for Awards or
which may be used to provide a basis of measurement for or to determine the
value of an Award (such as with a Stock Appreciation Right or Performance Share
Award) shall be 75,000 shares.
5.2. LAPSED AWARDS. To the extent that an Award is canceled, terminates,
-------------
expires or lapses for any reason, any shares of Stock subject to the Award will
again be available for the grant of an Award under the Plan and shares subject
to SARs or other Awards settled in cash will be available for the grant of an
Award under the Plan.
5.3. STOCK DISTRIBUTED. Any Stock distributed pursuant to an Award may
-----------------
consist, in whole or in part, of authorized and unissued Stock, treasury Stock
or Stock purchased on the open market.
5.4. LIMITATION ON NUMBER OF SHARES SUBJECT TO AWARDS. Notwithstanding any
------------------------------------------------
provision in the Plan to the contrary, the maximum number of shares of Stock
with respect to one or more Options and/or SARs that may be granted during any
one calendar year under the Plan to any one Covered Employee shall be 50,000.
The maximum fair market value of any performance-based Awards (other than
Options and SARs) that may be received by a Covered Employee (less any
consideration paid by the Participant for such Award) during any one calendar
year under the Plan shall be $1,000,000.
ARTICLE 6
ELIGIBILITY
6.1. GENERAL. Awards may be granted only to individuals who are employees,
-------
officers or directors of the Corporation or a Parent or Subsidiary. From and
after the date, if any, upon which the Stock shall be traded on a national
securities exchange or on the Nasdaq National Market, consultants of the
Corporation will also be eligible to receive Awards under the Plan.
ARTICLE 7
STOCK OPTIONS
7.1. GENERAL. The Committee is authorized to grant Options to Participants
-------
on the following terms and conditions:
-7-
(a) EXERCISE PRICE. The exercise price per share of Stock under an
--------------
Option shall be determined by the Committee.
(b) TIME AND CONDITIONS OF EXERCISE. The Committee shall determine
-------------------------------
the time or times at which an Option may be exercised in whole or in part.
The Committee also shall determine the performance or other conditions, if
any, that must be satisfied before all or part of an Option may be
exercised. The Committee may waive any exercise provisions at any time in
whole or in part based upon such factors as the Committee may determine in
its sole discretion so that the Option becomes exercisable at an earlier
date.
(c) PAYMENT. The Committee shall determine the methods by which the
-------
exercise price of an Option may be paid, the form of payment, including,
without limitation, cash, shares of Stock, or other property (including
"cashless exercise" arrangements), and the methods by which shares of Stock
shall be delivered or deemed to be delivered to Participants. Without
limiting the power and discretion conferred on the Committee pursuant to
the preceding sentence, the Committee may, in the exercise of its
discretion, but need not, allow a Participant to pay the Option price by
directing the Corporation to withhold from the shares of Stock that would
otherwise be issued upon exercise of the Option that number of shares
having a Fair Market Value on the exercise date equal to the Option price,
all as determined pursuant to rules and procedures established by the
Committee.
(d) EVIDENCE OF GRANT. All Options shall be evidenced by a written
-----------------
Award Agreement between the Corporation and the Participant. The Award
Agreement shall include such provisions as may be specified by the
Committee.
7.2. INCENTIVE STOCK OPTIONS. The terms of any Incentive Stock Options
-----------------------
granted under the Plan must comply with the following additional rules:
(a) EXERCISE PRICE. The exercise price per share of Stock shall be
--------------
set by the Committee, provided that the exercise price for any Incentive
Stock Option shall not be less than the Fair Market Value as of the date of
the grant.
(b) EXERCISE. In no event may any Incentive Stock Option be
--------
exercisable for more than ten years from the date of its grant.
(c) LAPSE OF OPTION. An Incentive Stock Option shall lapse under the
---------------
earliest of the following circumstances; provided, however, that the
Committee may, prior to the lapse of the Incentive Stock Option under the
circumstances described in paragraphs (3), (4) and (5) below, provide in
writing that the Option will extend until a
-8-
later date, but if Option is exercised after the dates specified in
paragraphs (3), (4) and (5) above, it will automatically become a Non-
Qualified Stock Option:
(1) The Incentive Stock Option shall lapse as of the option
expiration date set forth in the Award Agreement.
(2) The Incentive Stock Option shall lapse ten years after it is
granted, unless an earlier time is set in the Award Agreement.
(3) If the Participant terminates employment for any reason other
than as provided in paragraph (4) or (5) below, the Incentive Stock
Option shall lapse, unless it is previously exercised, three months
after the Participant's termination of employment; provided, however,
that if the Participant's employment is terminated by the Corporation
for cause or by the Participant without the consent of the
Corporation, the Incentive Stock Option shall (to the extent not
previously exercised) lapse immediately.
(4) If the Participant terminates employment by reason of his
Disability, the Incentive Stock Option shall lapse, unless it is
previously exercised, one year after the Participant's termination of
employment.
(5) If the Participant dies while employed, or during the three-
month period described in paragraph (3) or during the one-year period
described in paragraph (4) and before the Option otherwise lapses, the
Option shall lapse one year after the Participant's death. Upon the
Participant's death, any exercisable Incentive Stock Options may be
exercised by the Participant's beneficiary.
Unless the exercisability of the Incentive Stock Option is accelerated
as provided in Article 13, if a Participant exercises an Option after
termination of employment, the Option may be exercised only with respect to
the shares that were otherwise vested on the Participant's termination of
employment.
(d) INDIVIDUAL DOLLAR LIMITATION. The aggregate Fair Market Value
----------------------------
(determined as of the time an Award is made) of all shares of Stock with
respect to which Incentive Stock Options are first exercisable by a
Participant in any calendar year may not exceed $100,000.00.
(e) TEN PERCENT OWNERS. No Incentive Stock Option shall be granted to
------------------
any individual who, at the date of grant, owns stock possessing more than
ten percent of the total combined voting power of all classes of stock of
the Corporation or any Subsidiary unless the exercise price per share of
such Option is at least 110% of the Fair Market Value per share of Stock at
the date of grant and the Option expires no later than five years after the
date of grant.
(f) EXPIRATION OF INCENTIVE STOCK OPTIONS. No Award of an Incentive
-------------------------------------
Stock Option may be made pursuant to the Plan after the day immediately
prior to the tenth anniversary of the Effective Date.
-9-
(g) RIGHT TO EXERCISE. During a Participant's lifetime, an Incentive
-----------------
Stock Option may be exercised only by the Participant or, in the case of
the Participant's Disability, by the Participant's guardian or legal
representative.
(h) DIRECTORS. The Committee may not grant an Incentive Stock Option
---------
to a non-employee director. The Committee may grant an Incentive Stock
Option to a director who is also an employee of the Corporation or Parent
or Subsidiary but only in that individual's position as an employee and not
as a director.
ARTICLE 8
STOCK APPRECIATION RIGHTS
8.1. GRANT OF SARs. The Committee is authorized to grant SARs to
-------------
Participants on the following terms and conditions:
(a) RIGHT TO PAYMENT. Upon the exercise of a Stock Appreciation
----------------
Right, the Participant to whom it is granted has the right to receive the
excess, if any, of:
(1) The Fair Market Value of one share of Stock on the date of
exercise; over
(2) The grant price of the Stock Appreciation Right as determined
by the Committee, which shall not be less than the Fair Market Value of
one share of Stock on the date of grant in the case of any SAR related
to an Incentive Stock Option.
(b) OTHER TERMS. All awards of Stock Appreciation Rights shall be
-----------
evidenced by an Award Agreement. The terms, methods of exercise, methods
of settlement, form of consideration payable in settlement, and any other
terms and conditions of any Stock Appreciation Right shall be determined by
the Committee at the time of the grant of the Award and shall be reflected
in the Award Agreement.
ARTICLE 9
PERFORMANCE SHARES
9.1. GRANT OF PERFORMANCE SHARES. The Committee is authorized to grant
---------------------------
Performance Shares to Participants on such terms and conditions as may be
selected by the Committee. The Committee shall have the complete discretion to
determine the number of Performance Shares granted to each Participant. All
Awards of Performance Shares shall be evidenced by an Award Agreement.
9.2. RIGHT TO PAYMENT. A grant of Performance Shares gives the Participant
----------------
rights, valued as determined by the Committee, and payable to, or exercisable
by, the Participant to whom the Performance Shares are granted, in whole or in
part, as the Committee shall establish at grant or thereafter. The Committee
-10-
shall set performance goals and other terms or conditions to payment of the
Performance Shares in its discretion which, depending on the extent to which
they are met, will determine the number and value of Performance Shares that
will be paid to the Participant.
9.3. OTHER TERMS. Performance Shares may be payable in cash, Stock, or
-----------
other property, and have such other terms and conditions as determined by the
Committee and reflected in the Award Agreement.
ARTICLE 10
RESTRICTED STOCK AWARDS
10.1. GRANT OF RESTRICTED STOCK. The Committee is authorized to make
-------------------------
Awards of Restricted Stock to Participants in such amounts and subject to such
terms and conditions as may be selected by the Committee. All Awards of
Restricted Stock shall be evidenced by a Restricted Stock Award Agreement.
10.2. ISSUANCE AND RESTRICTIONS. Restricted Stock shall be subject to
-------------------------
such restrictions on transferability and other restrictions as the Committee may
impose (including, without limitation, limitations on the right to vote
Restricted Stock or the right to receive dividends on the Restricted Stock).
These restrictions may lapse separately or in combination at such times, under
such circumstances, in such installments, upon the satisfaction of performance
goals or otherwise, as the Committee determines at the time of the grant of the
Award or thereafter.
10.3. FORFEITURE. Except as otherwise determined by the Committee at the
----------
time of the grant of the Award or thereafter, upon termination of employment
during the applicable restriction period or upon failure to satisfy a
performance goal during the applicable restriction period, Restricted Stock that
is at that time subject to restrictions shall be forfeited and reacquired by the
Corporation; provided, however, that the Committee may provide in any Award
Agreement that restrictions or forfeiture conditions relating to Restricted
Stock will be waived in whole or in part in the event of terminations resulting
from specified causes, and the Committee may in other cases waive in whole or in
part restrictions or forfeiture conditions relating to Restricted Stock.
10.4. CERTIFICATES FOR RESTRICTED STOCK. Restricted Stock granted under
---------------------------------
the Plan may be evidenced in such manner as the Committee shall determine. If
certificates representing shares of Restricted Stock are registered in the name
of the Participant, certificates must bear an appropriate legend referring to
the terms, conditions, and restrictions applicable to such Restricted Stock.
ARTICLE 11
DIVIDEND EQUIVALENTS
11.1 GRANT OF DIVIDEND EQUIVALENTS. The Committee is authorized to grant
-----------------------------
Dividend Equivalents to Participants subject to such terms and conditions as may
-11-
be selected by the Committee. Dividend Equivalents shall entitle the
Participant to receive payments equal to dividends with respect to all or a
portion of the number of shares of Stock subject to an Option Award or SAR
Award, as determined by the Committee. The Committee may provide that Dividend
Equivalents be paid or distributed when accrued or be deemed to have been
reinvested in additional shares of Stock, or otherwise reinvested.
ARTICLE 12
OTHER STOCK-BASED AWARDS
12.1. GRANT OF OTHER STOCK-BASED AWARDS. The Committee is authorized,
---------------------------------
subject to limitations under applicable law, to grant to Participants such other
Awards that are payable in, valued in whole or in part by reference to, or
otherwise based on or related to shares of Stock, as deemed by the Committee to
be consistent with the purposes of the Plan, including without limitation shares
of Stock awarded purely as a "bonus" and not subject to any restrictions or
conditions, convertible or exchangeable debt securities, other rights
convertible or exchangeable into shares of Stock, and Awards valued by reference
to book value of shares of Stock or the value of securities of or the
performance of specified Parents or Subsidiaries. The Committee shall determine
the terms and conditions of such Awards.
ARTICLE 13
PROVISIONS APPLICABLE TO AWARDS
13.1. STAND-ALONE, TANDEM, AND SUBSTITUTE AWARDS. Awards granted under
------------------------------------------
the Plan may, in the discretion of the Committee, be granted either alone or in
addition to, in tandem with, or in substitution for, any other Award granted
under the Plan. If an Award is granted in substitution for another Award, the
Committee may require the surrender of such other Award in consideration of the
grant of the new Award. Awards granted in addition to or in tandem with other
Awards may be granted either at the same time as or at a different time from the
grant of such other Awards.
13.2. EXCHANGE PROVISIONS. The Committee may at any time offer to
-------------------
exchange or buy out any previously granted Award for a payment in cash, Stock,
or another Award (subject to Section 14.1), based on the terms and conditions
the Committee determines and communicates to the Participant at the time the
offer is made.
13.3. TERM OF AWARD. The term of each Award shall be for the period as
-------------
determined by the Committee, provided that in no event shall the term of any
Incentive Stock Option or a Stock Appreciation Right granted in tandem with the
Incentive Stock Option exceed a period of ten years from the date of its grant
(or, if Section 7.2(e) applies, five years from the date of its grant).
13.4. FORM OF PAYMENT FOR AWARDS. Subject to the terms of the Plan and
--------------------------
any applicable law or Award Agreement, payments or transfers to be made by the
Corporation or a Parent or Subsidiary on the grant or exercise of an Award may
be made in such form as the Committee determines at or after the time of grant,
-12-
including without limitation, cash, Stock, other Awards, or other property, or
any combination, and may be made in a single payment or transfer, in
installments, or on a deferred basis, in each case determined in accordance with
rules adopted by, and at the discretion of, the Committee.
13.5. LIMITS ON TRANSFER. No right or interest of a Participant in any
------------------
unexercised or restricted Award may be pledged, encumbered, or hypothecated to
or in favor of any party other than the Corporation or a Parent or Subsidiary,
or shall be subject to any lien, obligation, or liability of such Participant to
any other party other than the Corporation or a Parent or Subsidiary. No
unexercised or restricted Award shall be assignable or transferable by a
Participant other than by will or the laws of descent and distribution or,
except in the case of an Incentive Stock Option, pursuant to a domestic
relations order which would satisfy Section 414(p)(1)(A) of the Code if such
Section applied to an Award under the Plan; provided, however, that the
Committee may (but need not) permit other transfers where the Committee
concludes that such transferability (i) does not result in accelerated taxation,
(ii) does not cause any Option intended to be an incentive stock option to fail
to be described in Code Section 422(b), and (iii) is otherwise appropriate and
desirable, taking into account any state or federal securities laws applicable
to transferable Awards.
13.6 BENEFICIARIES. Notwithstanding Section 13.5, a Participant may, in
-------------
the manner determined by the Committee, designate a beneficiary to exercise the
rights of the Participant and to receive any distribution with respect to any
Award upon the Participant's death. A beneficiary, legal guardian, legal
representative, or other person claiming any rights under the Plan is subject to
all terms and conditions of the Plan and any Award Agreement applicable to the
Participant, except to the extent the Plan and Award Agreement otherwise
provide, and to any additional restrictions deemed necessary or appropriate by
the Committee. If no beneficiary has been designated or survives the
Participant, payment shall be made to the Participant's estate. Subject to the
foregoing, a beneficiary designation may be changed or revoked by a Participant
at any time provided the change or revocation is filed with the Committee.
13.7. STOCK CERTIFICATES. All Stock certificates delivered under the Plan
------------------
are subject to any stop-transfer orders and other restrictions as the Committee
deems necessary or advisable to comply with federal or state securities laws,
rules and regulations and the rules of any national securities exchange or
automated quotation system on which the Stock is listed, quoted, or traded. The
Committee may place legends on any Stock certificate to reference restrictions
applicable to the Stock.
13.8 ACCELERATION UPON DEATH OR DISABILITY. Notwithstanding any other
-------------------------------------
provision in the Plan or any Participant's Award Agreement to the contrary, upon
the Participant's death or Disability during his employment or his service as a
director, all outstanding Options, Stock Appreciation Rights, and other Awards
in the nature of rights that may be exercised shall become fully exercisable and
all restrictions on outstanding Awards shall lapse. Any such Option, Stock
Appreciation Rights or other Awards shall thereafter continue or lapse in
accordance with the other provisions of the Plan and the Award Agreement. To the
extent that this provision causes Incentive Stock Options to exceed the dollar
limitation set forth in Section 7.2(d), the excess Options shall be deemed to be
Non-Qualified Stock Options.
-13-
13.9. ACCELERATION UPON A CHANGE IN CONTROL. Except as otherwise provided
-------------------------------------
in the Award Agreement, upon the occurrence of a Change in Control, all
outstanding Options, Stock Appreciation Rights, and other Awards in the nature
of rights that may be exercised shall become fully exercisable and all
restrictions on outstanding Awards shall lapse; provided, however, that such
acceleration will not occur if, in the opinion of the Corporation's accountants,
such acceleration would preclude the use of "pooling of interest" accounting
treatment for a Change in Control transaction that (a) would otherwise qualify
for such accounting treatment, and (b) is contingent upon qualifying for such
accounting treatment. To the extent that this provision causes Incentive Stock
Options to exceed the dollar limitation set forth in Section 7.2(d), the excess
Options shall be deemed to be Non-Qualified Stock Options.
13.10. ACCELERATION UPON CERTAIN EVENTS NOT CONSTITUTING A CHANGE IN
-------------------------------------------------------------
CONTROL. In the event of the occurrence of any circumstance, transaction or
- -------
event not constituting a Change in Control (as defined in Section 3.1) but which
the Board of Directors deems to be, or to be reasonably likely to lead to, an
effective change in control of the Corporation of a nature that would be
required to be reported in response to Item 6(e) of Schedule 14A of the 1934 Act
(regardless of whether the Corporation is then subject to such Act), the
Committee may in its sole discretion declare all outstanding Options, Stock
Appreciation Rights, and other Awards in the nature of rights that may be
exercised to be fully exercisable, and/or all restrictions on all outstanding
Awards to have lapsed, in each case as of such date as the Committee may, in its
sole discretion, declare, which may be on or before the consummation of such
transaction or event. To the extent that this provision causes Incentive Stock
Options to exceed the dollar limitation set forth in Section 7.2(d), the excess
Options shall be deemed to be Non-Qualified Stock Options.
13.11. ACCELERATION FOR ANY OTHER REASON. Regardless of whether an event
---------------------------------
has occurred as described in Section 13.9 or 13.10 above, the Committee may in
its sole discretion at any time determine that all or a portion of a
Participant's Options, Stock Appreciation Rights, and other Awards in the nature
of rights that may be exercised shall become fully or partially exercisable,
and/or that all or a part of the restrictions on all or a portion of the
outstanding Awards shall lapse, in each case as of such date as the Committee
may, in its sole discretion, declare. The Committee may discriminate among
Participants and among Awards granted to a Participant in exercising its
discretion pursuant to this Section 13.11.
13.12 EFFECT OF ACCELERATION. If an Award is accelerated under Section
----------------------
13.9, 13.10 or 13.11, the Committee may, in its sole discretion, provide (i)
that the Award will expire after a designated period of time after such
acceleration to the extent not then exercised, (ii) that the Award will be
settled in cash rather than Stock, (iii) that the Award will be assumed by
another party to the transaction giving rise to the acceleration or otherwise be
equitably converted in connection with such transaction, or (iv) any combination
of the foregoing. The Committee's determination need not be uniform and may be
different for different Participants whether or not such Participants are
similarly situated.
-14-
13.13. PERFORMANCE GOALS. The Committee may determine that any Award
-----------------
granted pursuant to this Plan to a Participant (including, but not limited to,
Participants who are Covered Employees) shall be determined solely on the basis
of (a) the achievement by the Corporation or a Parent or Subsidiary of a
specified target return, or target growth in return, on equity or assets, (b)
the Corporation's, Parent's or Subsidiary's stock price, (c) the achievement by
the Corporation, Parent or Subsidiary or a business unit of the Corporation,
Parent or Subsidiary of a specified target, or target growth in, revenues,
operating income, net income or earnings per share, or (d) any combination of
the goals set forth in (a) through (c) above. Furthermore, the Committee
reserves the right for any reason to reduce (but not increase) any Award,
notwithstanding the achievement of a specified goal. If an Award is made on
such basis, the Committee shall establish goals prior to the beginning of the
period for which such performance goal relates (or such later date as may be
permitted under Code Section 162(m) or the regulations thereunder). Any payment
of an Award granted with performance goals shall be conditioned on the written
certification of the Committee in each case that the performance goals and any
other material conditions were satisfied.
13.14. TERMINATION OF EMPLOYMENT. Whether military, government or other
-------------------------
service or other leave of absence shall constitute a termination of employment
shall be determined in each case by the Committee at its discretion, and any
determination by the Committee shall be final and conclusive. A termination of
employment shall not occur in a circumstance in which a Participant transfers
from the Corporation to one of its Parents or Subsidiaries, transfers from a
Parent or Subsidiary to the Corporation, or transfers from one Parent or
Subsidiary to another Parent or Subsidiary.
ARTICLE 14
CHANGES IN CAPITAL STRUCTURE
14.1. GENERAL. In the event a stock dividend is declared upon the Stock,
-------
the number of shares of Stock subject to grant pursuant to this Plan shall be
increased proportionately and the number of shares of Stock then subject to each
Award shall be increased proportionately without any change in the aggregate
purchase price therefor. In the event the Stock shall be changed into or
exchanged for a different number or class of shares of stock or securities of
the Corporation or of another corporation, whether through reorganization,
recapitalization, stock split-up, combination of shares, merger or
consolidation, there shall be substituted for each such share of Stock then
subject to each Award the number and class of shares into which each outstanding
share of Stock shall be so exchanged, all without any change in the aggregate
purchase price for the shares then subject to each Award. In the event the
Stock shall be changed into or exchanged for cash or other property not
consisting of shares of stock or securities of the Corporation or of another
corporation, whether through reorganization, recapitalization, merger or
consolidation, the Committee may, in its sole discretion, provide (i) that the
Award will expire after a designated period of time to the extent not then
exercised, (ii) that the Award will be settled in cash rather than Stock, (iii)
that the Award will be assumed by another party to the transaction or otherwise
be equitably converted in connection with such transaction, or (iv) any
combination of the foregoing. The Committee's determination need not be uniform
and may be different for different Participants whether or not such Participants
are similarly situated.
-15-
ARTICLE 15
AMENDMENT, MODIFICATION AND TERMINATION
15.1. AMENDMENT, MODIFICATION AND TERMINATION. The Board or the Committee
---------------------------------------
may, at any time and from time to time, amend, modify or terminate the Plan
without stockholder approval; provided, however, that the Board or Committee may
condition any amendment or modification on the approval of stockholders of the
Corporation if such approval is necessary or deemed advisable with respect to
tax, securities or other applicable laws, policies or regulations.
15.2 AWARDS PREVIOUSLY GRANTED. At any time and from time to time, the
-------------------------
Committee may amend, modify or terminate any outstanding Award without approval
of the Participant; provided, however, that such amendment, modification or
termination shall not, without the Participant's consent, reduce or diminish the
value of such Award determined as if the Award had been exercised, vested,
cashed in or otherwise settled on the date of such amendment or termination.
ARTICLE 16
GENERAL PROVISIONS
16.1. NO RIGHTS TO AWARDS. No Participant or any employee, officer,
-------------------
consultant or director shall have any claim to be granted any Award under the
Plan, and neither the Corporation nor the Committee is obligated to treat
Participants or employees, officers, directors or consultants uniformly.
16.2. NO STOCKHOLDER RIGHTS. No Award gives the Participant any of the
---------------------
rights of a stockholder of the Corporation unless and until shares of Stock are
in fact issued to such person in connection with such Award.
16.3. WITHHOLDING. The Corporation or any Parent or Subsidiary shall have
-----------
the authority and the right to deduct or withhold, or require a Participant to
remit to the Corporation, an amount sufficient to satisfy federal, state, and
local taxes (including the Participant's FICA obligation) required by law to be
withheld with respect to any taxable event arising as a result of the Plan.
With respect to withholding required upon any taxable event under the Plan, the
Committee may, at the time the Award is granted or thereafter, require that any
such withholding requirement be satisfied, in whole or in part, by withholding
shares of Stock having a Fair Market Value on the date of withholding equal to
the amount to be withheld for tax purposes, all in accordance with such
procedures as the Committee establishes.
16.4. NO RIGHT TO EMPLOYMENT OR DIRECTORSHIP. Nothing in the Plan or any
--------------------------------------
Award Agreement shall interfere with or limit in any way the right of the
Corporation or any Parent or Subsidiary to terminate any Participant's
employment or status as a director or consultant at any time, nor confer upon
any Participant any right to continue in the employ or directorship of the
Corporation or any Parent or Subsidiary.
-16-
16.5. UNFUNDED STATUS OF AWARDS. The Plan is intended to be an "unfunded"
-------------------------
plan for incentive and deferred compensation. With respect to any payments not
yet made to a Participant pursuant to an Award, nothing contained in the Plan or
any Award Agreement shall give the Participant any rights that are greater than
those of a general creditor of the Corporation or any Parent or Subsidiary.
16.6. INDEMNIFICATION. To the extent allowable under applicable law, each
---------------
member of the Committee shall be indemnified and held harmless by the
Corporation from any loss, cost, liability, or expense that may be imposed upon
or reasonably incurred by such member in connection with or resulting from any
claim, action, suit, or proceeding to which such member may be a party or in
which he may be involved by reason of any action or failure to act under the
Plan and against and from any and all amounts paid by such member in
satisfaction of judgment in such action, suit, or proceeding against him
provided he gives the Corporation an opportunity, at its own expense, to handle
and defend the same before he undertakes to handle and defend it on his own
behalf. The foregoing right of indemnification shall not be exclusive of any
other rights of indemnification to which such persons may be entitled under the
Corporation's Articles of Incorporation or Bylaws, as a matter of law, or
otherwise, or any power that the Corporation may have to indemnify them or hold
them harmless.
16.7. RELATIONSHIP TO OTHER BENEFITS. No payment under the Plan shall be
------------------------------
taken into account in determining any benefits under any pension, retirement,
savings, profit sharing, group insurance, welfare or benefit plan of the
Corporation or any Parent or Subsidiary unless provided otherwise in such other
plan.
16.8. EXPENSES. The expenses of administering the Plan shall be borne by
--------
the Corporation and its Parents or Subsidiaries.
16.9. TITLES AND HEADINGS. The titles and headings of the Sections in the
-------------------
Plan are for convenience of reference only, and in the event of any conflict,
the text of the Plan, rather than such titles or headings, shall control.
16.10. GENDER AND NUMBER. Except where otherwise indicated by the
-----------------
context, any masculine term used herein also shall include the feminine; the
plural shall include the singular and the singular shall include the plural.
16.11. FRACTIONAL SHARES. No fractional shares of Stock shall be issued
-----------------
and the Committee shall determine, in its discretion, whether cash shall be
given in lieu of fractional shares or whether such fractional shares shall be
eliminated by rounding up.
16.12. GOVERNMENT AND OTHER REGULATIONS. The obligation of the
--------------------------------
Corporation to make payment of awards in Stock or otherwise shall be subject to
all applicable laws, rules, and regulations, and to such approvals by government
agencies as may be required. The Corporation shall be under no obligation to
register under the 1933 Act, any of the shares of Stock paid under the Plan. If
the shares paid under the Plan may in certain circumstances be exempt from
-17-
registration under the 1933 Act, the Corporation may restrict the transfer of
such shares in such manner as it deems advisable to ensure the availability of
any such exemption.
16.13. GOVERNING LAW. To the extent not governed by federal law, the Plan
--------------
and all Award Agreements shall be construed in accordance with and governed by
the laws of the State of Delaware.
16.14 ADDITIONAL PROVISIONS. Each Award Agreement may contain such other
---------------------
terms and conditions as the Committee may determine; provided that such other
terms and conditions are not inconsistent with the provisions of this Plan.
16.15 CODE SECTION 162(m). The deduction limits of Code Section 162(m)
-------------------
and the regulation thereunder do not apply to the Corporation until such time,
if any, as any class of the Corporation's common equity securities is registered
under Section 12 of the 1934 Act or the Corporation otherwise meets the
definition of a "publicly held corporation" under Treasury Regulation 1.162-
27(c) or any successor provision. Upon becoming a publicly held corporation,
the deduction limits of Code Section 162(m) and the regulations thereunder shall
not apply to compensation payable under this Plan until the expiration of the
reliance period described in Treasury Regulation 1.162-27(f) or any successor
regulation.
The foregoing is hereby acknowledged as being the Check Into Cash, Inc.
Amended and Restated 1997 Long-Term Incentive Plan as adopted by the Board of
Directors of the Corporation on May 1, 1998.
CHECK INTO CASH, INC.
By: /s/ W. Allan Jones, Jr.
------------------------------
W. Allan Jones, Jr.
Chairman of the Board and
Chief Executive Officer
-18-
EX-10.2
3
NATIONSBANK OF TENNESSEE, INC.
EXHIBIT 10.2
- --------------------------------------------------------------------------------
LOAN AGREEMENT
between
CHECK INTO CASH, INC.
and
NATIONSBANK OF TENNESSEE, N.A.
Dated as of June 2, 1997
- --------------------------------------------------------------------------------
TABLE OF CONTENTS
-----------------
Page
----
SECTION 1. DEFINITIONS................................................... 1
1.1 Defined Terms...................................................... 1
-------------
1.2 Other Definitional Provisions...................................... 11
-----------------------------
SECTION 2. AMOUNT AND TERMS OF REVOLVING CREDIT COMMITMENT............... 11
2.1 Revolving Credit Commitment........................................ 11
---------------------------
2.2 Note............................................................... 11
----
2.3 Procedure for Revolving Credit Borrowing........................... 11
----------------------------------------
2.4 Credit Account..................................................... 12
--------------
2.5 Letter of Credit Subfeature........................................ 12
---------------------------
2.6 Usage Fee.......................................................... 13
---------
SECTION 3. GENERAL PROVISIONS APPLICABLE TO THE LOANS.................... 13
3.1 Optional Prepayments............................................... 13
--------------------
3.2 Interest Rates and Payment Dates................................... 13
--------------------------------
3.3 Computation of Interest and Fees................................... 14
--------------------------------
SECTION 4. REPRESENTATIONS AND WARRANTIES................................ 14
4.1 Financial Condition................................................ 14
-------------------
4.2 No Change.......................................................... 15
---------
4.3 Existence; Compliance with Law..................................... 15
------------------------------
4.4 Power; Authorization; Enforceable Obligations...................... 15
---------------------------------------------
4.5 No Legal Bar....................................................... 16
------------
4.6 No Litigation...................................................... 16
-------------
4.7 No Default......................................................... 16
----------
4.8 Ownership of Property; Liens....................................... 16
----------------------------
4.9 Intellectual Property.............................................. 16
---------------------
4.10 No Burdensome Restrictions........................................ 17
--------------------------
4.11 Taxes............................................................. 17
-----
4.12 Federal Regulations............................................... 17
-------------------
4.13 ERISA............................................................. 17
-----
4.14 Investment Company Act; Other Regulations......................... 18
-----------------------------------------
4.15 Subsidiaries...................................................... 18
------------
4.16 Purpose of Loans.................................................. 18
----------------
4.17 Environmental Matters............................................. 19
---------------------
4.18 Security Agreement................................................ 19
------------------
4.19 Capitalization.................................................... 20
--------------
4.20 Solvency.......................................................... 20
--------
4.21 Fees; Commissions................................................. 20
-----------------
4.22 Truth of Representations.......................................... 20
------------------------
SECTION 5. CONDITIONS PRECEDENT.......................................... 21
5.1 Conditions to Initial Loans........................................ 21
---------------------------
5.2 Conditions to All Loans............................................ 23
-----------------------
SECTION 6. AFFIRMATIVE COVENANTS......................................... 24
6.1 Financial Statements............................................... 24
--------------------
6.2 Certificates; Other Information.................................... 25
-------------------------------
6.3 Payment of Obligations............................................. 26
----------------------
i
6.4 Conduct of Business, Maintenance of Existence............... 26
---------------------------------------------
6.5 Maintenance of Property; Insurance.......................... 26
----------------------------------
6.6 Inspection of Property; Books and Records;
-----------------------------------------
Discussions................................................. 27
-----------
6.7 Notices..................................................... 27
-------
6.8 Environmental Laws.......................................... 28
------------------
6.9 Accounts.................................................... 28
--------
6.10 ERISA....................................................... 28
-----
SECTION 7. NEGATIVE COVENANTS........................................ 29
7.1 Financial Condition Covenants............................... 29
-----------------------------
7.2 Limitation on Indebtedness.................................. 30
--------------------------
7.3 Limitation on Liens......................................... 30
-------------------
7.4 Limitation on Guarantee Obligations......................... 31
-----------------------------------
7.5 Limitation on Fundamental Changes........................... 31
---------------------------------
7.6 Limitation on Sale of Assets................................ 31
----------------------------
7.7 Limitation on Dividends and Stock Redemption................ 32
--------------------------------------------
7.8 Intentionally omitted....................................... 32
---------------------
7.9 Limitation on Investments, Loans and Advances............... 32
---------------------------------------------
7.10 Transactions with Affiliates............................... 32
----------------------------
7.11 Sale and Leaseback......................................... 33
------------------
7.12 Fiscal Year................................................ 33
-----------
7.13 Limitation on Negative Pledge Clauses...................... 33
-------------------------------------
7.14 Remuneration............................................... 33
------------
SECTION 8. EVENTS OF DEFAULT......................................... 33
8.1 Events of Default........................................... 33
-----------------
SECTION 9. MISCELLANEOUS............................................. 37
9.1 Amendments and Waivers...................................... 37
----------------------
9.2 Notices..................................................... 38
-------
9.3 No Waiver; Cumulative Remedies.............................. 38
------------------------------
9.4 Survival of Representations and Warranties................... 38
-----------------------------------------
9.5 Payment of Expenses and Taxes............................... 38
-----------------------------
9.6 Successors and Assigns; Participations...................... 39
--------------------------------------
9.7 Adjustments; Set-off........................................ 40
--------------------
9.8 Counterparts................................................ 40
------------
9.9 Severability................................................ 40
------------
9.10 Integration................................................ 40
-----------
9.11 GOVERNING LAW.............................................. 41
-------------
9.12 Acknowledgements........................................... 41
----------------
9.13 Further Assurances......................................... 41
------------------
9.14 Release and Indemnification................................ 41
---------------------------
9.15 Joint and Several Liability................................ 42
---------------------------
9.16 Arbitration................................................ 42
-----------
EXHIBIT 4.6...................................................... 46
-----------
EXHIBIT 4.9...................................................... 47
-----------
EXHIBIT 4.10..................................................... 48
------------
EXHIBIT 4.15..................................................... 49
------------
EXHIBIT 4.19..................................................... 50
------------
ii
LOAN AGREEMENT, dated as of June 2, 1997, among CHECK INTO CASH,
INC., a Delaware corporation (the "Company"), NATIONSBANK OF TENNESSEE, N.A., a
national banking association (the "Bank"), and the Subsidiary Guarantors
described below.
The parties hereto hereby agree as follows:
SECTION 1. DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the following terms
-------------
shall have the following meanings:
"Affiliate": as to any Person, (a) any other Person which, directly
---------
or indirectly, is in control of, is controlled by, or is under common
control with, such Person or (b) any Person who is a director, officer,
shareholder or partner (i) of such Person, (ii) of any Subsidiary of such
Person or (iii) of any Person described in the preceding clause (a). For
purposes of this definition, "control" of a Person means the power,
directly or indirectly, either to (i) vote 50% or more of the securities
having ordinary voting power for the election of directors of such Person
or (ii) direct or cause the direction of the management and policies of
such Person whether by contract or otherwise.
"Agreement": this Loan Agreement, as amended, supplemented or
---------
otherwise modified from time to time.
"Authorized Employee": as defined in subsection 2.3.
-------------------
"Available Credit Commitment": means from time to time, as determined
---------------------------
as of the end of each month, the product determined by multiplying
Corporate EBITDA for the preceding twelve (12) months (on a trailing 12-
month basis) times two (2).
"Business Day": a day other than a Saturday, Sunday or other day on
------------
which commercial banks in Chattanooga, Tennessee, are authorized or
required by law to close.
"Capital Stock": any and all shares, interests, participations or
-------------
other equivalents (however designated) of capital stock of a corporation,
any and all equivalent ownership interests in a Person (other than a
corporation) such as membership interests in limited liability companies
and partnership interests in partnerships, and any and all warrants,
options, rights or conversion privileges to purchase any of the foregoing.
"Cash Equivalents": any of the following: (i) direct obligations of
----------------
the United States or any agency thereof with maturities of one year or less
from the date of acquisition;
1
(ii) commerical paper of a domestic issuer rated at least "A-1" by Standard &
Poors Corporation or "P-1" by Moody's Investors Service, Inc.; and (iii)
certificates of deposit with maturities of one year or less from the date of
acquisition issued by any commerical bank having capital and surplus in excess
of One Hundred Million Dollars ($100,000,000).
"Change in Control": shall mean at any time: (i) if the Individual
-----------------
Guarantor and Janie P. Jones do not own at least fifty-one percent (51%) of the
Capital stock of the Company unless otherwise consented to in writing by the
Bank (which consent will not be unreasonably withheld in connection with a
public offering of the Company's Capital Stock or in connection with Individual
Guarantor's estate planning); (ii) if the Individual Guarantor at any time
ceases to serve as chief executive officer of the Company; or (iii) if the
Company does not own at least fifty-one percent (51%) of the Capital Stock of
each Subsidiary Guarantor.
"Closing Date": the date on which the Bank makes the initial Loans.
------------
"Code": the Internal Revenue Code of 1986, as amended from time to time.
----
"Collateral": all of the items and types of property on which the Bank is
----------
granted a Lien pursuant to the Security Documents.
"Commitment Period": the period from and including the date hereof to, but
------------------
not including, the Termination Date or such earlier date on which the Revolving
Credit Commitment shall terminate as provided herein.
"Commonly Controlled Entity": an entity, whether or not incorporated,
--------------------------
which is under common control with the Company within the meaning of Section
4001(b) of ERISA or is part of a group which includes the Company and which is
treated as a single employer under Sections 414(b) or (c) of the Code including,
without limitation, the Subsidiary Guarantors. In addition, for purposes of this
Agreement as it relates to Code Section 412(n), the term Commonly Controlled
Entity shall mean any entity aggregated with the Company under Code Section
414(b), (c), (m) or (o).
2
"Contractual Obligation": as to any Person, any provision of any security
----------------------
issued by such Person or of any agreement, instrument or other undertaking
(written or oral) to which such Person is a party or by which it or any of its
property is bound.
"Corporate EBITDA": with respect to the applicable periods as set forth
----------------
herein, the sum, without duplication, of (i) Corporate Net Income for such
period less gain on the sale of assets, dividends and other distributions,
withdrawals, and treasury stock purchases and similar transactions and (ii) to
the extent deducted in determining such Corporate Net Income: (A) all income
taxes, including but not limited to, Federal, foreign and state income taxes
(including any deferred taxes); (B) Corporate InterestExpense; and (C)
depreciation, amortization and similar non-cash charges, provided, that there
--------
shall be excluded therefrom non-operating gains and non-operating losses.
"Corporate Fixed Charges": for the applicable fiscal period of the Company
-----------------------
and the Subsidiary Guarantors on a consolidated basis, the sum of (i) the
aggregate principal amount of Indebtedness scheduled to be paid during such
period (including, without limitation, amounts scheduled to be paid under
Finance Leases and with respect to other Indebtedness for Borrowed Money) plus
(ii) Corporate Interest Expense scheduled to be paid during such period.
"Corporate Interest Expense": for the applicable fiscal period of the
--------------------------
Company and the Subsidiary Guarantors on a consolidated basis, the amount which,
in conformity with GAAP, would be set forth opposite the caption "interest
expense" or any like caption (excluding amortization of deferred finance
charges) on the consolidated income statement of the Company and Subsidiary
Guarantors for such period, provided, however, that in no event shall interest
-------- -------
income be deducted therefrom in computing such amount.
"Corporate Lease Expense": for the applicable fiscal period, the aggregate
-----------------------
rental expenses of the Company and the Subsidiary Guarantors on a consolidated
basis, determined in accordance with GAAP, payable in respect of such period
under leases (other than Financing Leases) for real and/or personal property.
"Corporate Net Income": for the applicable fiscal period, the amount
--------------------
which, in conformity with GAAP, will be set forth opposite the caption "net
income or loss" (after taxes) or any like caption on the income statement of the
Company and the Subsidiaries on a consolidated basis for such period.
3
"Corporate Net Worth": at a particular date, all amounts which would be
-------------------
included under shareholders' equity on the consolidated balance sheet of the
Company determined in accordance with GAAP.
"Credit Account": as defined in subsection 2.4.
--------------
"Current Assets": shall mean, as of the date of determination, all assets
--------------
of the Company and the Subsidiary Guarantors which would, in accordance with
GAAP, be classified as current assets.
"Current Liabilities": shall mean, as of the date of determination, all
-------------------
liabilities (including tax and other proper accruals) of the Company and the
Subsidiary Guarantor which would, in accordance with GAAP, be classified as
current liabilities, but in any event including all Indebtedness, whether
secured or unsecured, payable on demand or maturing not more than one (1) year
after such date, including any fixed and (at such time as the amount thereof
shall be determined) any contingent payments required to be made by the Company
or any Subsidiary Guarantor not more than one (1) year after such date in
respect of the principal of any of its Indebtedness for Borrowed Money.
"Default": any of the events specified in Section 8, whether or not any
-------
requirement for the giving of notice, the lapse of time, or both, or any other
condition, has been satisfied.
"Dollars" and "$": dollars in lawful currency of the United States of
------- -
America.
"Environmental Laws": any and all Federal, state, local or municipal laws,
------------------
rules, orders, regulations, statutes, ordinances, codes, decrees or
requirements of any Governmental Authority regulating, relating to or imposing
liability or standards of conduct concerning environmental protection matters,
including without limitation, Hazardous Materials, as now or may at any time
hereafter be in effect.
"ERISA": the Employment Retirement Income Security Act of 1974, as amended
-----
from time to time, any successor statutes thereto, and any regulations or
guidance promulgated thereunder.
"Event of Default": any of the events specified in Section 8, provided that
---------------- --------
any requirement for the giving of notice, the lapse of time, or both, or any
other condition, has been satisfied.
4
"Financing Lease": any lease of property, real or personal, the
---------------
obligations of the lessee in respect of which are required in accordance with
GAAP to be capitalized on a balance sheet of the lessee.
"Fixed Charges Coverage": means for the appropriate period of Company and
----------------------
Subsidiary Guarantors on a consolidated basis the ratio of (i) Corporate EBITDA
to (ii) the sum of Corporate Fixed Charges plus one-third of the principal
amount of the Loan outstanding on the last day of that period provided that such
amounts are not already included as scheduled principal payments of Indebtedness
in the definition of Corporate Fixed Charges.
"GAAP": generally accepted accounting principles in the United States of
----
America applied on a consistent basis with prior periods.
"Governmental Authority": any nation or government, any state or other
----------------------
political subdivision thereof and any entity exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining to government.
"Guarantee": the Continuing Guaranty executed by the Individual Guarantor
---------
in favor of the Bank on or about even date herewith, and the Continuing Guaranty
executed by Subsidiary Guarantors in favor of the Bank on or about even date
herewith, all as the same may be amended, supplemented or otherwise modified
from time to time.
"Guarantee Obligation": as to any Person (the "guaranteeing person"), any
-------------------- -------------------
obligation of (i) the guaranteeing person or (ii) another Person (including
without limitation, any bank under any letter or credit) to induce the creation
of any Indebtedness for which the guaranteeing person has issued a
reimbursement, counter, indemnity or similar obligation, in either case
guaranteeing or in effect guaranteeing any Indebtedness, leases, dividends or
other obligations (the "primary obligations") of any other third Person (the
-------------------
"primary obligor") in any manner, whether directly or indirectly, including,
---------------
without limitation, any obligation of the guaranteeing person, whether or not
contingent, (a) to purchase any such primary obligation or any property
constituting direct or indirect security therefor, (b) to advance or supply
funds (1) for the purchase or payment of any such primary obligation or (2) to
maintain working capital or equity capital of the primary obligor or otherwise
to maintain the net worth or solvency of the primary obligor, (c) to purchase
property, securities or services primarily for the purpose of assuring the owner
of any such primary obligation of the ability of the primary obligor to make
payment of such primary
5
obligation or (d) otherwise to assure or hold harmless the owner of any such
primary obligation against loss in respect thereof; provided, however, that the
-------- -------
term Guarantee Obligation shall not include endorsements of instruments for
deposit or collection in the ordinary course of business. The amount of any
Guarantee Obligation of any guaranteeing person shall be deemed to be the lower
of (i) an amount equal to the stated or determinable amount of the primary
obligation in respect of which such Guarantee Obligation is made and (ii) the
maximum amount for which such guaranteeing person may be liable pursuant to the
terms of the instrument embodying such Guarantee Obligation, unless such primary
obligation and the maximum amount for which such guaranteeing person may be
liable are not stated or determinable, in which case the amount of such
Guarantee Obligation shall be such guaranteeing person's maximum reasonably
anticipated liability in respect thereof as determined by the Bank in good
faith.
"Hazardous Materials": friable asbestos and other asbestos contaminating
-------------------
material, urea formaldehyde foam insulation, polychlorinated biphenyls,
petroleum and petroleum byproducts, pesticides, herbicides, and any and all
substances and materials now or hereafter defined or designated as hazardous
materials, hazardous waste, hazardous constituents, or hazardous or toxic
substances as defined or regulated as such in or under any Environmental Law.
"Indebtedness": all liabilities, obligations and indebtedness of any Person
------------
at any date of any and every kind and nature, whether matured or not matured,
whether joint or several, and whether heretofore, now or hereafter owing,
arising, due or payable and howsoever evidenced, created, incurred, acquired or
owing, whether primary, secondary, direct, contingent, fixed or otherwise and
regardless of the class of such liabilities, obligations and indebtedness
including, without in any way limiting the generality of the foregoing, the
following: (i) all Indebtedness for Borrowed Money of such Person; (ii) all
obligations of such Person in respect of acceptances issued or created for the
account of such Person; and (iii) all liabilities secured by any Lien on any
property owned by such Person even though such Person has not assumed or
otherwise become liable for the payment thereof. "Indebtedness" shall not
include any lease that is not a Financing Lease.
"Indebtedness for Borrowed Money": as applied to any Person, all
-------------------------------
Indebtedness of such Person evidenced by any note, bond, debenture or other
instrument or in respect of borrowed money, and any Financing Lease or any
portion of the purchase price of property or services that is deferred for
a period of one year or more from the date of purchase.
6
"Individual Guarantor": W. Allan Jones, Jr., an individual residing in
--------------------
Bradley County, Tennessee.
"Insolvency": with respect to any Multiemployer Plan, the condition that
----------
such Plan is insolvent within the meaning of Section 4245 of ERISA.
"Insolvent": pertaining to a condition of Insolvency.
---------
"Intellectual Property": has the meaning given such term in Section 4.9.
---------------------
"Intercreditor Agreements": the subordination and intercreditor
------------------------
agreements between the Bank and: (i) Sirrom Capital Corporation; and (ii)
Individual Guarantor, relating to the Indebtedness of the Company and the
Subsidiary Guarantors all in form and substance satisfactory to Bank.
"Interest Payment Date": the first day of each calendar month to occur
---------------------
while the Loan is outstanding commencing July 1, 1997.
"Landlord's Waiver": that certain Landlord's Waiver executed by W. Allan
-----------------
Jones, Jr. d/b/a Jones Properties in favor of the Bank in form and substance
satisfactory to the Bank.
"Letter of Credit": as defined in subsection 2.5.
----------------
"Leverage ratio": means for the applicable fiscal period of the Company
--------------
and Subsidiary Guarantors on a consolidated basis, the ratio of Indebtedness
for Borrowed Money (including subordinated Indebtedness for Borrowed Money) of
the Company and Subsidiary Guarantors to Corporate EBITDA.
"Lien": any mortgage, pledge, hypothecation, assignment, deposit
----
arrangement, encumbrance, lien (statutory or other), or preference, priority or
other security agreement or preferential arrangement of any kind or nature
whatsoever (including, without limitation, any conditional sale or other title
retention agreement, any Financing Lease having substantially the same economic
effect as any of the foregoing, and the filing of any financing statement under
the UCC or comparable law of any jurisdiction in respect of any of the
foregoing).
"Loan": the loan made by the Bank pursuant to this Agreement as further
----
defined in Section 2.1.
7
"Loan Documents": this Agreement, the Note, the Security Documents, the
--------------
Intercreditor Agreements and any other document, instrument or agreement now or
hereafter existing, evidencing, securing or otherwise relating to any
Indebtedness of the Company, the Individual Guarantor, or any Subsidiary
Guarantor to the Bank.
"Material Adverse Effect": a material adverse effect on (i) the business,
-----------------------
operations, assets, or position (financial or otherwise) of the Company and
Subsidiary Guarantors taken as a whole or the Individual Guarantor (ii) the
ability of the Company, Individual Guarantor, or any Subsidiary Guarantor
generally to perform its obligations under this Agreement, the Note or any of
the other Loan Documents, or (iii) the validity or enforceability of this
Agreement, the Note, any Guarantee, any Security Document, or any of the other
Loan Documents or the rights or remedies of the Bank hereunder or thereunder.
"Maximum Credit Amount": means the lesser of (i) Three Million One Hundred
---------------------
Thousand Dollars ($3,100,000) and (ii) the Available Credit Commitment.
"Multiemployer Plan": a Plan which is a multiemployer plan as defined in
------------------
Section 4001(a)(3) of ERISA.
"Note": the Promissory Note in the principal amount of Three Million One
----
Hundred Thousand Dollars ($3,100,000) executed by the Company payable to Bank
dated on or about even date herewith, as the same may be amended, supplemented
or otherwise modified from time to time, together with all other promissory
notes now or hereafter payable by the Company or any Subsidiary Guarantor to the
Bank and all amendments, supplements and modifications thereof.
"Operating Account": means a checking account maintained by the Company
-----------------
with the Bank.
"PBGC": the Pension Benefit Guaranty Corporation established pursuant to
----
Subtitle A of Title IV of ERISA or any entity succeeding to any or all of its
functions.
"Participant": as defined in subsection 9.6.
-----------
"Person": an individual, partnership, corporation, limited liability
------
company, business trust, joint stock company, trust, unincorporated association,
joint venture, Governmental Authority or other entity of whatever nature.
"Permitted Liens": as defined in subsection 7.3.
---------------
8
"Plan": at a particular time, any employee benefit plan which is covered
----
by ERISA and in respect of which the Company or a Commonly Controlled Entity is
(or, if such plan were terminated at such time, would under Section 4069 of
ERISA be deemed to be) an "employer" as defined in Section 3(5) of ERISA.
"Prohibited Transaction": any transaction set forth in Section 406 of
----------------------
ERISA or Section 4975 of the Code, for which a statutory, regulatory or
individual exemption is not applicable.
"Regulation U": Regulation U of the Board of Governors of the Federal
------------
Reserve System.
"Reorganization": with respect to any Multiemployer Plan, the condition
--------------
that such plan is in reorganization within the meaning of Section 4241 of ERISA.
"Reportable Event": any of the events set forth in Section 4043 of ERISA
----------------
(other than a Reportable Event as to which the provision of 30 days' notice has
been waived by the PBGC under applicable regulations or to which penalties for
failure to provide notice have been waived by applicable regulation or
administrative action by the PBGC).
"Requirement of Law": as to any Person, the charter (certificate of
------------------
incorporation) and by-laws, articles of organization and operating agreements,
and other organizational or governing documents of such Person, and any law,
treaty, rule, order, regulation, statute, ordinance, code, decree or requirement
of any Governmental Authority, in each case applicable to or binding upon such
Person or any of its property or to which such Person or any of its property is
subject, as may nor or at any time hereafter be in effect.
"Responsible Officer": the president of the Company or, with respect to
-------------------
financial matters, the chief financial officer of the Company.
"Revolving Credit Commitment": the obligation of the Bank to make the Loan
---------------------------
to the Company hereunder in an aggregate principal amount at any one time
outstanding not to exceed the Maximum Credit Amount.
"Security Agreement": the Security Agreement entered into by the Company
------------------
and the Bank on or about even date herewith, and the Security Agreement(s)
entered into by the Subsidiary Guarantors and the Bank on or about even date
herewith, all as the same may be amended, supplemented or otherwise modified
from time to time, and related UCC financing statements.
9
"Security Documents": the Security Agreement and the financing statements
-------------------
relating thereto, the Guarantee, the Security Agreement and Collateral
Assignment of Membership Interests entered into between the Company and Bank on
or about even date herewith, the Pledge and Security Agreement entered into
between the Company and Bank on or about even date herewith, the Trademark
Security Agreement entered into between the Company and the Bank on or about
even date herewith, and all other documents, instruments and agreements now or
hereafter securing repayment of the Loan.
"Single Employer Plan": any Plan which is covered by Title IV of ERISA, but
---------------------
which is not a Multiemployer Plan.
"Subsidiary": as to any Person, a corporation, partnership or other entity
-----------
of which shares of stock or other ownership interests having ordinary voting
power to elect a majority of the board of directors or other managers of such
corporation, partnership or other entity are at the time owned, or the
management of which is otherwise controlled, directly or indirectly through one
or more intermediaries, or both, by such Person. With respect to the Company,
the term "Subsidiary" shall include, without limitation, the Subsidiary
Guarantors.
"Subsidiary Guarantor(s)": Creditcorp of Tennessee, Inc., Check Into Cash
------------------------
of Iowa, Inc., Check into Cash of Kentucky, LLC, Check into Cash of Indiana,
LLC, Check into Cash of Illinois, LLC, Check into Cash of Wisconsin, LLC, Check
into Cash of Ohio, LLC, Jones Management Services, LLC, Check into Cash
Holdings, Inc., Check into Cash of California, Inc., Check into Cash of
Missouri, Inc., and Check into Cash of Nebraska, Inc., together with all other
Persons now or hereafter party to the Guarantee executed by the Subsidiary
Guarantors.
"Tangible Net Worth": at any time, Corporate Net Worth less all amounts
-------------------
included in the calculation thereof attributable to (i) goodwill (including all
customer lists), (ii) intellectual property, (iii) non-competition agreements,
(iv) unamortized financing costs, (v) amounts due from Affiliates, Subsidiaries
and other inter-company debts (but not including bona fide amounts owing for
transactions permitted by Section 7.10) and (vi) all other intangibles which
appear on the consolidated balance sheet of the Company and the Subsidiary
Guarantors, all as determined in accordance with GAAP. The capitalized value of
the warrants issued in favor of Sirrom Capital Corporation and the
organizational expenses incurred by the Company and the Subsidiary Guarantors
shall not be deducted from Corporate Net Worth in determining Tangible Net
---
Worth.
"Termination Date": June 2, 2000.
-----------------
10
"UCC": the Uniform Commercial Code as from time to time in effect in
---
the State of Tennessee.
"Working Capital": at any time, the amount equal to the difference
----------------
between Current Assets and Current Liabilities.
1.2 Other Definitional Provisions. (a) Unless otherwise specified
-----------------------------
therein, all terms defined in this Agreement shall have the defined meanings
when used in the Note and other Loan Documents or any certificate or other
document made or delivered pursuant hereto.
(b) As used herein and in the Note, and any certificate or other
document made or delivered pursuant hereto accounting terms relating to the
Company and the Subsidiary Guarantors not defined in subsection 1.1 and
accounting terms partly defined in subsection 1.1, to the extent not defined,
shall have the respective meanings given to them under GAAP.
(c) The words "hereof", "herein" and "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement as a whole and
not to any particular provision of this Agreement, and Section, subsection and
Schedule references are to this Agreement unless otherwise specified.
(d) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
SECTION 2. AMOUNT AND TERMS OF REVOLVING CREDIT COMMITMENT
2.1 Revolving Credit Commitment. Subject to the terms and conditions
---------------------------
hereof, the Bank agrees to make revolving credit loans (the "Loan") to the
Company from time to time during the Commitment Period in an aggregate principal
amount at any one time outstanding not to exceed the Maximum Credit Amount.
Notwithstanding anything to the contrary contained in any Loan Document, if the
aggregate principal amount of the Loan at any time outstanding exceeds the
Maximum Credit Amount, the Company shall immediately pay to the Bank such
amounts necessary to reduce the then outstanding principal amount of the Loan to
an amount not exceeding such Maximum Credit Amount.
2.2 Note. The Loan made by the Bank shall be evidenced by the Note.
----
2.3 Procedure for Revolving Credit Borrowing. The Company shall
----------------------------------------
designate to the Bank from time to time the officers and employees of the
Company who may request that the Bank make advances of the Loan (an "Authorized
Employee"). An Authorized Employee shall be deemed to be an Authorized Employee
for the purpose of requesting advances of the Revolving Credit
11
Loans until thirty (30) days after the Bank receives written notice from the
Company to the contrary. The Bank shall have no duty to verify the authenticity
of the signature of any Authorized Employee on a written request for an advance
of the Loan and, with respect to a verbal request for an advance of the Loan,
the Bank shall have no duty to verify the identity of any person who represents
himself or herself as an Authorized Employee. The Company shall make verbal
requests for advances which shall be promptly confirmed in writing (by facsimile
notice or other means) on such form reasonably required from time to time by the
Bank. Each such request shall be given to the Bank not later than 12:00 p.m.
E.S.T. on the Business Day during which the requested advance is to be made. All
advances of the Loan may be made by the Bank into the Operating Account. The
Bank shall not be required to make any advances into the Operating Account
unless such advances are in accordance with this Agreement. The failure of the
Bank to require any written requests for an advance or to follow any other
procedures set forth in this Agreement shall not in any way affect the treatment
of any advance into the Operating Account as an advance of the Loan under this
Agreement.
2.4 Credit Account. The Bank shall maintain on its books an account
--------------
(the "Credit Account") which shall be debited for advances of the Loan
(including all advances into the Operating Account) and other amounts chargeable
to the Company with respect thereto (including interest accruing thereon) and
credited for all payments received on the Loan. Each month the Bank shall render
to the Company a statement of the Company's Credit Account which shall be deemed
correct and accepted by and binding upon the Company unless the Bank receives a
written statement of the Company's specific exceptions thereto within thirty
(30) days from the date of mailing of the written statement to the Company. The
statements of the Credit Account and books of account of the Bank shall
constitute prima facie evidence of the balance in the Credit Account.
2.5 Letter of Credit Subfeature. As a subfeature under the Loan, Bank
---------------------------
may from time to time up to and including the Termination Date, issue letters of
credit for the account of Company (each a "Letter of Credit" and collectively,
"Letters of Credit"); provided, however, that the form and substance of each
Letter of Credit shall be subject to the approval by Bank in its sole discretion
and the Company shall pay the Bank a fee of one percent (1%) per annum due upon
issuance or renewal of a Letter of Credit; provided further that the aggregate
undrawn amount of all outstanding Letters of Credit shall not at any time exceed
Five Hundred Thousand Dollars ($500,000.00). Each Letter of Credit shall be
issued for a term not to exceed three hundred and sixty (360) days, as
designated by Company. The undrawn amount of all Letters of Credit plus any and
all amounts paid by Bank in connection with drawings under any Letter of Credit
for which the Bank has not been reimbursed shall be reserved under the
12
revolving credit facility established under this Agreement, shall be considered
an outstanding Loan under this Agreement for purposes of computing the Maximum
Credit Amount. Each draft paid by Bank under a Letter of Credit shall be deemed
an advance under the Loan and shall be repaid in accordance with the terms of
the Note; provided, however, that if at the time any draft is paid by the Bank,
advances are not available under the Loan due to any limitation of borrowing set
forth herein or in any other Loan Document or for any other reason (including,
without limitation, at any time the then outstanding Loans exceed the Maximum
Credit Amount or any time a draft is paid by the Bank after the Termination
Date), then the full amount of such draft shall be immediately due and payable,
together with interest thereon, from the date such amount is paid by Bank to
the date such amount is fully repaid by Borrower, at the Default Rate of
interest as set forth in the Note. In such event, Company agrees that Bank, in
Bank's sole discretion, may debit the Company's deposit accounts with Bank for
the amount of such draft. If the expiry date of any Letter of Credit is later
than the Termination Date, then at least fifteen (15) days prior to the
Termination Date the Company shall deposit with the Bank funds in the amount of
the face amount of such Letters of Credit or such other collateral as Bank may
reasonably request.
2.6 Usage Fee. Company will pay hereafter on the last day of each
---------
March, June, September and December, during the Commitment Period, commencing
September 30, 1997, and shall also pay on the Termination Date, an unused loan
fee at a rate of .125 percent per annum of the average daily unused portion of
the Loan (the aggregate undrawn amount of all outstanding Letters of Credit
shall be considered as used for purposes of calculating this fee) during the
prior period. The Company may at any time upon written notice to Bank
permanently reduce the amount of the Loan at which time the obligation of the
Company to pay an unused loan fee shall thereupon correspondingly be reduced.
SECTION 3. GENERAL PROVISIONS APPLICABLE TO THE LOANS
3.1 Optional Prepayments. The Company may at any time and from time
--------------------
to time prepay the Loan, in whole or in part, on one Business Days' irrevocable
notice to the Bank, specifying the date and amount of prepayment. If any such
notice is given, the amount specified in such notice shall be due and payable on
the date specified therein.
3.2 Interest Rates and Payment Dates. (a) The Loan shall bear
--------------------------------
interest at a rate per annum equal to the rate set forth in the Note.
(b) Upon the occurrence of an Event of Default and the acceleration of
the amounts due under the Note, to the extent permitted by applicable law, the
rate of interest on the
13
aggregate of the unpaid principal amount of the Note, accrued interest and all
other sums payable in connection therewith, shall (as well after as before
judgment), at the option of Bank, be increased to an amount equal to two percent
(2%) above the then applicable interest rate set forth in the Note, such amount
not to exceed the Maximum Rate (as defined in the Note). In addition to the
foregoing, to the extent permitted by applicable law, Bank may impose a
delinquency charge in an amount not to exceed five percent (5%) of any payment
not received within fifteen (15) days of its due date.
(c) Interest shall be payable in arrears on each Interest Payment
Date, provided that interest accruing pursuant to paragraph (b) of this
--------
subsection shall be payable on demand.
3.3 Computation of Interest and Fees. (a) Interest on the Loan shall
--------------------------------
be calculated on the basis of a 360-day year for the actual number of days
elapsed to the extent permitted by applicable law. To the extent applicable, any
change in the interest rate on the Loan resulting from a change in the LIBOR
Rate (as defined in the Note) shall become effective as of the opening of
business on the day on which such change is announced.
(b) All payments (including prepayments) to be made by the Company
hereunder and under the Note, whether on account of principal, interest, fees or
otherwise, shall be made without set off or counterclaim and shall be made prior
to 12:00 Noon, Chattanooga time, on the due date thereof to the Bank, at its
offices in Chattanooga, Tennessee, in Dollars and in immediately available
funds. If any payment hereunder becomes due and payable on a day other than a
Business Day, such payment shall be extended to the next succeeding Business
Day, and, with respect to payments of principal, interest thereon shall be
payable at the then applicable rate during such extension.
SECTION 4. REPRESENTATIONS AND WARRANTIES
To induce the Bank to enter into this Agreement and to make the Loan,
the Company and each Subsidiary Guarantor hereby represents and warrants to the
Bank that:
4.1 Financial Condition. The combined balance sheet of the Company
-------------------
and Subsidiary Guarantors as at December 31, 1996, and the related combined
statements of income, of equity and of cash flows for the period ended on such
date, copies of which have heretofore been furnished to the Bank, are complete
and correct and present fairly the combined financial position of the Company
and Subsidiary Guarantors as at such date, and the combined results of its
operations and cash flows for the period then ended. The unaudited balance sheet
of the Individual Guarantor as of December 31, l996, and the related unaudited
statements of income and of cash flows for the period ending on
14
such date, copies of which have heretofore been furnished to the Bank, are
complete and correct and present fairly the financial position of the Individual
Guarantor as at such date. All such financial statements, including the related
schedules and notes thereto, have been prepared in accordance with GAAP applied
consistently throughout the periods involved.
4.2 No Change. Since the date of the financial statements referred to
---------
in subsection 4.1, there has been no development or event nor any prospective
development or event, which has had or could have a Material Adverse Effect and
there are no liabilities of the Company, any Subsidiary Guarantor or the
Individual Guarantor, fixed or contingent, which are material but are not
reflected in such financial statements other than liabilities arising in the
ordinary course of business since December 31, 1996. The Company, the Individual
Guarantor, and the Subsidiary Guarantors do not have any Indebtedness or
Guarantee Obligation other than those which have been disclosed to the Bank in
writing.
4.3 Existence; Compliance with Law. The Company and each Subsidiary
------------------------------
Guarantor (a) is duly organized, validly existing and in good standing under the
laws of the state of its organization, (b) has the power, authority, and legal
right to own and operate its property, to lease the property it operates as
lessee and to conduct the business in which it is currently engaged, (c) is duly
qualified as a foreign corporation and in good standing under the laws of each
jurisdiction where its ownership, lease or operation of property or the conduct
of its business requires such qualification and (d) is in compliance with all
Requirements of Law except any noncompliance which in the aggregate would not
have a Material Adverse Effect. The Company, each Subsidiary Guarantor, and the
Individual Guarantor have complied with all Requirements of Law in the operation
of their business and the ownership of their assets (including obtaining
licenses and permits necessary for the operation of their business) except any
noncompliance which in the aggregate would not have a Material Adverse Effect.
4.4 Power; Authorization; Enforceable Obligations. Company and each
---------------------------------------------
Subsidiary Guarantor has the power and authority, and the legal right, to make,
deliver and perform this Agreement, the Note, the Guarantee, and the other Loan
Documents to which it is a party, as applicable, and to borrow hereunder and has
taken all necessary action to authorize the borrowings on the terms and
conditions of this Agreement, the Note, the Guarantee, and the other Loan
Documents to which it is a party and to authorize the execution, delivery and
performance of this Agreement, the Note, the Guarantee, and the other Loan
Documents to which it is a party. No consent or authorization of, filing with
or other act by or in respect of, any Governmental Authority or any other Person
is required in connection with the borrowings hereunder or with respect to the
execution, delivery,
15
performance, validity or enforceability of this Agreement, the Note, the
Guarantee, or any of the other Loan Documents. This Agreement has been, and each
Note, the Guarantee, and other Loan Document will be, duly executed and
delivered on behalf of the Company and each Subsidiary Guarantor (as
applicable). This Agreement constitutes, and the Note, the Guarantee, and the
other Loan Documents when executed and delivered will constitute, legal, valid
and binding obligations of the Company, the Individual Guarantor, and the
Subsidiary Guarantors (as applicable), enforceable against the Company, the
Individual Guarantor, and the Subsidiary Guarantors (as applicable) in
accordance with its terms.
4.5 No Legal Bar. The execution, delivery and performance of this
------------
Agreement, the Note and the other Loan Documents, the borrowings hereunder and
the use of the proceeds thereof will not violate any Requirement of Law or
Contractual Obligation of the Company, the Individual Guarantor, or any
Subsidiary Guarantor and will not result in, or require, the creation or
imposition of any Lien on any of its or their respective properties or revenues
pursuant to any such Requirement of Law or Contractual Obligation.
4.6 No Litigation. No litigation, investigation or proceeding of or
-------------
before any arbitrator or Governmental Authority is pending or, to the knowledge
of the Company or any Subsidiary Guarantor, threatened by or against the
Company, the Individual Guarantor, or any Subsidiary Guarantor, or against any
of its or their respective properties or revenues except as set forth on Exhibit
4.6.
4.7 No Default. None of the Company, the Individual Guarantor, or any
----------
Subsidiary Guarantor is in default under or with respect to any of its
Contractual Obligations except such defaults which in the aggregate do not have
a Material Adverse Effect. No Default or Event of Default has occurred and is
Continuing.
4.8 Ownership of Property; Liens. The Company and each Subsidiary
----------------------------
Guarantor has good and marketable title to all its assets and none of such
assets is subject to any Lien other than a Permitted Lien.
4.9 Intellectual Property. The Company and each Subsidiary Guarantor
---------------------
owns, or is licensed to use, all trademarks, trade names, service names, service
marks, copyrights, patents, technology, know-how and processes necessary for the
conduct of its business as currently conducted (the "Intellectual Property").
No claim has been asserted and is pending by any Person challenging or
questioning the use of any such Intellectual Property or the validity or
effectiveness of any such Intellectual Property, nor does the Company or any
Subsidiary know of any valid basis for any such claim. The use
16
of such Intellectual Property by the Company or any Subsidiary does not infringe
on the rights of any Person. Except as set forth on Exhibit 4.9, neither the
Company nor any Subsidiary Guarantor has registered any trademark, trade name,
service name, service mark, copyright, or patent.
4.10 No Burdensome Restrictions. Except as set forth on Exhibit 4.10,
--------------------------
there is no Requirement of Law or Contractual Obligation of the Company or any
Subsidiary Guarantor with respect to which the Company or Subsidiary Guarantor
is not in compliance, the failure to be in compliance with which would have a
Material Adverse Effect.
4.11 Taxes. The Company, the Individual Guarantor, and each
-----
subsidiary Guarantor has filed or caused to be filed all tax returns which are
required to be filed and have paid all taxes shown to be due and payable on said
returns or on any assessments made against any of them or any of their property
and all other taxes, fees or other charges imposed on any of them or any of
their property by any Governmental Authority (other than any the amount or
validity of which are currently being contested in good faith by appropriate
proceedings and with respect to which reserves in conformity with GAAP have been
provided on its books); no tax Lien has been filed; and, no claim is being
asserted, with respect to any such tax, fee or other charge.
4.12 Federal Regulations. No part of the proceeds of the Loan will be
-------------------
used for "purchasing" or "carrying" any "margin stock" within the respective
meanings of each of the quoted terms under Regulation U of the Board of
Governors of the Federal Reserve System as now and from time to time hereafter
in effect or for any purpose which violates the provisions of the Regulations of
such Board of Governors. If requested by the Bank, the Company will furnish to
the Bank a statement to the foregoing effect in conformity with the requirements
of FR Form 0-1 referred to in said Regulation U.
4.13 ERISA. Each Plan which is intended to be qualified under Section
-----
401(a) of the Code as currently in effect has been determined by the Internal
Revenue Service to be so qualified, and each trust related to any such Plan is
exempt from federal income tax under Section 501(a) of the Code as currently in
effect. Neither a Reportable Event nor Prohibited Transaction which could
reasonably result in a Material Adverse Effect has occurred with respect to any
Plan. Each Plan has complied in all material respects with the applicable
provisions of ERISA and the Code. No circumstances exist which constitute
reasonable grounds entitling the PBGC to institute proceedings to terminate, or
appoint a trustee to administer, any Plan, nor has the PBGC instituted any such
proceeding. The present value of all benefit liabilities under each Single
Employer Plan maintained by the Company or any Commonly Controlled Entity (based
on those assumptions used to fund the Plans) did not, as of the last
17
annual valuation date prior to the date on which this representation is made or
deemed made, exceed the value of the assets of such Plan allocable to such
benefit liabilities. Neither the Company nor any Commonly Controlled Entity has
had a complete or partial withdrawal from any Multiemployer Plan that could
reasonably result in a Material Adverse Effect. Neither the Company nor any
Commonly Controlled Entity would become subject to any liability under ERISA
that could reasonably result in a Material Adverse Effect if the Company or any
such Commonly Controlled Entity were to withdraw completely from all
Multiemployer Plans as of the valuation date most closely preceding the date on
which this representation is made or deemed made. To the knowledge of the
Company, no such Multiemployer Plan is in Reorganization or Insolvent. The
present value (determined using actuarial and other assumptions which are
reasonable in respect of the benefits provided and the employees participating)
of the liability of the Company and each Commonly Controlled Entity for post
retirement benefits to be provided to their current and former employees under
Plans which are welfare benefit plans (as defined in Section 3(1) of ERISA) does
not, in the aggregate, exceed the assets under all such Plans allocable to such
benefits.
4.14 Investment Company Act; Other Regulations. Neither the Company
-----------------------------------------
nor any Subsidiary Guarantor is an "investment company", or a company
"controlled" by an "investment company", within the meaning of the Investment
Company Act of 1940, as amended. Neither the Company nor any Subsidiary
Guarantor is subject to regulation under any Federal or State statute or
regulation which limits its ability to incur Indebtedness.
4.15 Subsidiaries. The Company has no Subsidiaries or Affiliates that
------------
are not natural Persons except for the Subsidiary Guarantors and the other
------
Affiliates and Subsidiaries identified on Exhibit 4.15 (as such Exhibit 4.15 may
be updated from time to time in connection with the formation of new Affiliates
and Subsidiaries). The Subsidiary Guarantors have no Subsidiaries and have no
Affiliates that are not natural Persons except the Company, the other Subsidiary
Guarantors and the other Affiliates identified on Exhibit 4.15 (as such Exhibit
4.15 may be updated from time to time in connection with the formation of new
Affiliates and Subsidiaries).
4.16 Purpose of Loans. The proceeds of the Loan shall be used by the
----------------
Company and the Subsidiary Guarantors for general working capital, to fund the
operations of the Company and the Subsidiary Guarantors (including but not
limited to, capitalizing new Subsidiary Guarantors, lending or contributing
funds to Subsidiary Guarantors to finance their respective operations, and
expanding the existing operations of the Company and the Subsidiary Guarantors
in existing and new markets), and to refinance existing senior debt facilities
(not including the
18
current debt facilities owing to Sirrom Capital Corporation) and for capital
expenditures. The proceeds of the Loan will not be used for any other purpose.
4.17 Environmental Matters. To the best of the Company's and each
---------------------
Subsidiary Guarantor's knowledge and except as to matters which individually or
in the aggregate are not reasonably expected to result in a Material Adverse
Effect, each of the representations and warranties set forth in paragraphs (a)
through (e) of this subsection is true and correct with respect to each parcel
of real property owned or leased by the Company or any Subsidiary Guarantor
(individually, a "Property" and collectively, the "Properties"):
(a) The Properties do not contain in, on, or under, including, without
limitation, the soil and groundwater thereunder, any Hazardous Materials.
(b) The Properties and all operations and facilities at the Properties
are in material compliance with all applicable Environmental Laws, and
there is no violation of any applicable Environmental Law which will
materially interfere with the continued operation of any of the Properties
or materially impair the fair saleable value of any thereof.
(c) Neither the Company nor any Subsidiary Guarantor has received any
notice of material violation or violation of any applicable Environmental
Law, the violation of which will have a Material Adverse Effect, with
regard to the Properties, nor is the Company or any Subsidiary Guarantor
aware that any Governmental Authority is contemplating delivering to the
Company any such notice.
(d) Hazardous Materials have not been generated, treated, stored,
disposed of by the Company or any Subsidiary Guarantor, at, on or under any
of the Properties, nor have any Hazardous Materials been transferred by the
Company or any Subsidiary Guarantor from the Properties to any other
location.
(e) There are no governmental, administrative actions or judicial
proceedings pending under any Environmental Laws to which the Company is
named as a party with respect to the Properties which if adversely
determined is likely to have a Material Adverse Effect, nor are there any
consent decrees, consent orders or administrative orders outstanding under
any applicable Environmental Law with respect to any of the Properties.
4.18 Security Agreement. The provisions of the Security Documents are
------------------
effective to create in favor of the Bank a legal, valid and enforceable security
interest in all right,
19
title and interest of the Company and the Subsidiary Guarantors in the
Collateral described therein, and upon the filing and recording of the financing
statements executed in connection with this Agreement, the Bank shall have a
fully perfected security interest in all right, title and interest of the
Company and Subsidiary Guarantors in such Collateral in which a security
interest may be perfected by the filing of a financing statement superior in
right to any Liens which any third Person may have against such Collateral or
interests therein (assuming the validity and enforceability of the Intercreditor
Agreement entered into between the Bank and Sirrom Capital Corporation) save and
except for Permitted Liens.
4.19 Capitalization. As of the date of this Agreement, the
--------------
Capital Stock of the Company and each of the Subsidiary Guarantors is owned as
set forth in Exhibit 4.19. Neither Company nor any Subsidiary Guarantor is a
party to any agreement, whether oral or written, or both, concerning the
issuance, repurchase or redemption of any of its Capital Stock except for the
Stock Purchase Warrants issued in favor of Sirrom Capital Corporation and the
potential forfeiture of restricted stock issued to Steven Scoggins as described
on Exhibit 4.19. All of the Capital Stock of the Company and each Subsidiary
Guarantor has been validly and properly issued in accordance with all
Requirements of Law including, without limitation, the "blue sky" laws of all
applicable state and the federal securities laws.
4.20 Solvency. The Company and the Subsidiary Guarantors on a
--------
consolidated basis are and after the consummation of the transactions described
in this Agreement will be solvent, able to pay their debts as they become due,
and have and will have sufficient capital to carry on their businesses. The
Company and the Subsidiary Guarantors now own property having a value on a
consolidated basis both of fair valuation and at present fair salable value
greater than the amount required to pay the Company's and the Subsidiary
Guarantors' (as applicable) Indebtedness (including all Indebtedness
contemplated by this Agreement). The Company and the Subsidiary Guarantors on a
consolidated basis will not be rendered insolvent by the execution and delivery
of this Agreement or any of the other Loan Documents or by the transactions
contemplated hereby or thereby.
4.21 Fees; Commissions. The Company and Subsidiary Guarantors
-----------------
have not agreed to pay any finder's fee, commissions, origination fee or other
fee or charge to any Person or entity other than Bank with respect to the
transactions contemplated by this Agreement.
4.22 Truth of Representations. Neither this Agreement nor any
------------------------
of the other Loan Documents, nor any other agreements, instruments, reports,
schedules, certificates or documents heretofore simultaneously with the
execution of this Agreement
20
delivered to Bank in connection with the negotiation and the making of the Loans
contains any misrepresentation or untrue statement of a material fact or omits
to state any material fact necessary to make this Agreement, the other Loan
Documents, and such other agreements, instruments, reports, schedules,
certificates and documents not misleading.
SECTION 5. CONDITIONS PRECEDENT
5.1 Conditions to Initial Loans. The agreement of the Bank to
---------------------------
make the Loan is subject to the satisfaction, immediately prior to or
concurrently with the making of such Loan on the Closing Date, of the following
conditions precedent:
(a) Loan Documents. The Bank shall have received (i) this
--------------
Agreement, executed and delivered by a duly authorized officer of the
Company and each Subsidiary Guarantor (as applicable), (ii) the Note
executed by a duly authorized officer of the Company, (iii) the
Security Agreements and related UCC-l financing statements, executed
and delivered by a duly authorized officer of the Company and each
Subsidiary Guarantor (as applicable), (iv) the Guarantee, executed and
delivered by the Individual Guarantor and each Subsidiary Guarantor
(as applicable), and (v) all of the other Loan Documents executed by a
duly authorized officer of the Company or Subsidiary Guarantor (as
applicable) and by the Individual Guarantor where required.
(b) Corporate Proceedings. The Bank shall have received: (i)
---------------------
a copy of the resolutions, in form and substance satisfactory to the
Bank, of the Board of Directors of the Company and the Board of
Directors or Members, as applicable of each Subsidiary Guarantor
authorizing (a) the execution, delivery and performance of this
Agreement, the Note and the other Loan Documents, and (b) the
borrowings contemplated hereunder, certified by the Secretary of the
Company and appropriate officer of each Subsidiary Guarantor as of the
Closing Date, which certificate shall state that the resolutions
thereby certified have not been amended, modified, revoked or
rescinded and shall be in form and substance satisfactory to the Bank;
and (ii) an incumbency certificate concerning the Company's and each
Subsidiary Guarantor's officers certified by the Secretary of the
Company and appropriate officer of each Subsidiary Guarantor in form
and substance satisfactory to the Bank.
(c) Corporate Documents. The Bank shall have received true
-------------------
and complete copies of the certificate of incorporation of the Company
and certificate of incorporation/articles of organization, as amended,
of each Subsidiary Guarantor, certified as of the Closing Date by the
Secretary of State as a complete and correct copy thereof, a
certificate of
21
existence regarding the Company and each Subsidiary Guarantor from the
Secretary of State, and bylaws of the Company and bylaws/operating
agreement of each Subsidiary Guarantor, certified as of the Closing
Date as a complete and correct copy thereof by the Secretary of the
Company and appropriate officer of the Subsidiary Guarantor.
(d) No Violation. The consummation of the transactions
------------
contemplated hereby shall not contravene, violate or conflict with,
nor involve the Bank, Company, any Subsidiary Guarantor, or the
Individual Guarantor in any violation of, any Requirement of Law.
(e) Officer's Certificate. The Bank shall have received a
---------------------
certificate of a Responsible Officer of the Company and an appropriate
officer of each Subsidiary Guarantor stating that all of the
representations and warranties are true and correct in all material
respects as of the Closing Date.
(f) Legal Opinions. The Bank shall have received the executed
--------------
legal opinion of Alston & Bird LLP, counsel to the Company and the
Subsidiary Guarantors in the form and substance satisfactory to Bank.
(g) Filings, Registrations and Recordings. Any documents,
-------------------------------------
including, without limitation, financing statements, required to be
filed, and any other actions required to be taken, under or in
connection with any of the Security Documents in order to create, in
favor of the Bank, a perfected first priority security interest in the
Collateral, shall have been properly filed and the Bank shall have
received evidence satisfactory to it of each such filing,
registration, recordation or other action and satisfactory evidence of
the payment of any necessary fee, tax or expense relating thereto.
(h) Lien Releases. The Bank shall have received evidence
-------------
satisfactory to it that UCC-3 termination statements and other Lien
release documentation shall have been duly executed and properly filed
or delivered to the Bank for filing on terms and conditions acceptable
to the Bank, and all other necessary actions shall have been taken, to
the extent necessary to effect the complete and irrevocable release of
all Liens on the assets of the Company or any Subsidiary Guarantor
except for Permitted Liens.
(i) Lien Searches. The Bank shall have received the results
-------------
of a recent search by a Person satisfactory to the Bank of the Uniform
Commercial Code filings and tax and judgment liens which may have been
filed with respect to the
22
personal or real property of the Company and each Subsidiary
Guarantor.
23
(j) Insurance. The Bank shall have received such
---------
certificates, endorsements and other evidence satisfactory to it that
the Company and each Subsidiary Guarantor has obtained the insurance
policies required by subsection 6.5 and by the Security Documents all
in form and substance satisfactory to the Bank.
(k) Financial Statements. The Bank shall have received
--------------------
consolidated financial statements of the Company and Subsidiary
Guarantors and financial statements of the Individual Guarantor which
must be satisfactory in form and substance to the Bank.
(1) Intercreditor Agreements. The Bank shall have received
------------------------
the Intercreditor Agreements which shall be in form and substance
satisfactory to the Bank.
(m) Landlord's Waiver. The Bank shall have received the
-----------------
Landlord's Waiver which shall be in form and substance satisfactory to
the Bank, and a certified copy of the leases relating to the
Landlord's Waiver.
(n) Miscellaneous. The Bank shall have received such other
-------------
approvals, opinions, documents and agreements as Bank shall reasonably
request all in form and substance satisfactory to Bank.
5.2 Conditions to All Loans. The agreement of the Bank to
-----------------------
make any advance of the Loan requested to be made by it on any date is subject
to the satisfaction of the following conditions precedent:
(a) Representations and Warranties. Each of the
------------------------------
representations and warranties made by the Company, any Subsidiary
Guarantor, or Individual Guarantor in or pursuant to the Loan
Documents shall be true and correct in all material respects on and as
of such date as if made on and as of such date, except any and all
representations made as of a specified date, and by this subsection,
the Company and each Subsidiary Guarantor represents and warrants that
on the date of each Loan such representations and warranties shall be
true and correct in all material respects.
(b) No Default. No Default or Event of Default shall have
----------
occurred and be continuing on such date or after giving effect to the
advance requested to be made on such date.
(c) Additional Documents. The Bank shall have received each
--------------------
additional document, instrument, legal opinion or item of information
reasonably requested by it.
24
(d) Additional Matters. All corporate and other proceedings, and all
------------------
documents, instruments and other legal matters in connection with the
transactions contemplated by this Agreement, and the other Loan Documents
shall be satisfactory in form and substance to the Bank, and the Bank shall
have received such other documents and legal opinions in respect of any
aspect or consequence of the transactions contemplated hereby or thereby as
it shall reasonably request.
Each borrowing by the Company hereunder shall constitute a representation and
warranty by the Company and each Subsidiary Guarantor as of the date of such
Loan that the conditions contained in this subsection 5.2 have been satisfied.
SECTION 6. AFFIRMATIVE COVENANTS
The Company and each Subsidiary Guarantor hereby agrees that, so long
as the Revolving Credit Commitment remains in effect, any Note (or Letter of
Credit) remains outstanding and unpaid or any other Indebtedness is owing to the
Bank hereunder or under any other Loan Document, the Company and each Subsidiary
Guarantor shall:
6.1 Financial Statements. Furnish to the Bank:
--------------------
(a) as soon as available, but in any event within one hundred twenty
(120) days after the end of each fiscal year of the Company, a copy of the
consolidated balance sheet of the Company and the Subsidiary Guarantors as
at the end of such year and the related consolidated statements of income,
of equity and of cash flows for such year, setting forth in each case in
comparative form the figures for the previous year, reported on without a
"going concern" or like qualification or exception, or qualification
arising out of the scope of the audit, accompanied by an audit report
including an unqualified opinion on such statements acceptable to the Bank
by an independent certified public accountant selected by the Company and
acceptable to the Bank; and
(b) as soon as available, but in any event not later than forty-five
(45) days after the end of each month, the consolidated balance sheet of
the Company and the Subsidiary Guarantors as at the end of such month and
the related unaudited statements of income and retained earnings and of
cash flows of the Company and the Subsidiary Guarantors for such month and
the portion of the fiscal year through the end of such month and for the
twelve month period ending at the end of such month (i.e., rolling twelve
month), setting forth in each case in comparative form the figures for the
previous year, certified and signed by a Responsible Officer as being
fairly stated in all material respects.
25
(c) As soon as available, but in any event not later than fifteen (15)
days after the end of each month, a monthly volume and status report to
include the total amount of checks then held by the Company and Subsidiary
Guarantors, the bad debt reserve of the Company and the Subsidiary
Guarantors, the delinquencies, and aged recency and contractual basis
reports, all of which shall be certified and signed by a Responsible
Officer as being fairly stated in all material respects; and
(d) as soon as available, but in any event not later than one hundred
twenty (120) days after the end of each calendar year, the unaudited
balance sheet of the Individual Guarantor as at the end of such year and
related statements as reasonably requested by Bank certified and signed by
the Guarantor as being fairly stated in all material respects all in such
form as Bank may from time to time request;
all such financial statements to be complete and correct in all material
respects and to be prepared in reasonable detail and in the case of items (a),
(b), and (d) of this Section 6.1, in accordance with GAAP applied consistently
throughout the periods reflected therein and with prior periods.
6.2 Certificates; Other Information. Furnish to Bank:
-------------------------------
(a) concurrently with the delivery of the financial statements
referred to in subsection 6.1(a), a certificate of the independent
certified public accountants reporting on such financial statements stating
that in making the examination necessary therefor no knowledge was obtained
of any Default or Event of Default, except as specified in such
certificate;
(b) concurrently with the delivery of the financial statements
referred to in subsections 6.1(a) and with delivery of the monthly
statements referred to in subsection 6.1(b), a certificate of a Responsible
Officer stating that the Company and Subsidiary Guarantors during such
period have observed or performed all of the covenants and other
agreements, and satisfied every condition, contained in this Agreement and
in the Note and the other Loan Documents to which it is a party to be
observed, performed or satisfied by it, and that no Default or Event of
Default has occurred except as specified in such certificate, which
certificates shall also include a computation of all quantitative covenants
(including, without limitation, the computation of the Leverage Ratio for
purposes of adjusting the interest rate under the Note);
(c) not later than thirty (30) days prior to the end of each fiscal
year of the Company and Subsidiary Guarantors, a copy of the projections by
the Company of the operating
26
budget and cash flow budget of the Company and Subsidiary Guarantors for
the succeeding fiscal year, such projections to be accompanied by a
certificate of a Responsible Officer to the effect that such officer has no
reason to believe they are incorrect or misleading in any material respect
and are based on reasonable assumptions;
(d) promptly, such additional financial and other information as Bank
may from time to time reasonably request.
6.3 Payment of Obligations. Pay, discharge or otherwise satisfy at or
----------------------
before maturity or before they become delinquent, as the case may be, all its
obligations and Indebtedness of whatever nature (including, without limitation,
the obligations and Indebtedness under the Loan Documents and all taxes and
other charges levied by any Governmental Authority), except where the amount or
validity thereof is currently being contested in good faith by appropriate
proceedings and reserves in conformity with GAAP with respect thereto have been
provided on the books of the Company.
6.4 Conduct of Business, Maintenance of Existence and Compliance with
-----------------------------------------------------------------
Law. Continue to engage in business of the same general type as now conducted by
- ---
it and preserve, renew and keep in full force and effect its corporate
(organizational) existence, good standing and qualification in all jurisdictions
where such qualification is required, and take all reasonable action to maintain
all rights, privileges, franchises and Intellectual Property necessary or
desirable in the normal conduct of its business; comply with all Contractual
Obligations and Requirements of Law except for noncompliances which in the
aggregate do not have a Material Adverse Effect. If Company or any Subsidiary
Guarantor begins using any new trademark, trade name, service name, service
mark, copyright or patent then Company and the Subsidiary Guarantor shall
provide Bank prompt notice of that use and execute all documents and take such
other actions as may be requested by Bank to perfect Bank's security interest
therein.
6.5 Maintenance of Property; Insurance. Keep all assets useful and
----------------------------------
necessary in its business in good working order and condition; maintain with
financially sound and reputable insurance companies insurance in at least such
amounts and against at least such risks (but including in any event public
liability, product liability, fire and extended coverage, worker's compensation,
and business interruption) as are usually insured against in the same general
area by companies engaged in the same or a similar business and in accordance
with the Security Documents and as otherwise from time to time reasonably
requested by Bank; and furnish to the Bank, upon written request, full
information as to the insurance carried.
27
6.6 Inspection of Property; Books and Records; Discussions.
------------- ----------------------------------------
Keep proper books of records and account in which full, true and correct entries
in conformity with GAAP and all Requirements of Law shall be made of all
dealings and transactions in relation to its business and activities, and permit
representatives of the Bank to visit and inspect any of its properties and
Collateral (including all checks and other instruments then held by it) and
examine and make abstracts from any of its books and records at any reasonable
time and as often as may reasonably be desired and to discuss the business,
operations, properties and financial and other condition of the Company and
Subsidiary Guarantors with officers and employees of the Company and Subsidiary
Guarantors and with their independent certified public accountants.
6.7 Notices. Promptly give notice to the Bank of:
-------
(a) the occurrence of any Default or Event of Default;
(b) any (i) default or event of default under any Contractual
Obligation of the Company or any Subsidiary Guarantor which may have a
Material Adverse Effect or (ii) litigation, investigation or proceeding
which may exist at any time between the Company or any Subsidiary Guarantor
and any Governmental Authority which may have a Material Adverse Effect;
(c) any litigation or proceeding affecting the Company, the Individual
Guarantor, or any Subsidiary Guarantor in which the amount involved is
Fifty Thousand Dollars ($50,000) or more or in which injunctive or similar
relief is sought;
(d) the following events, as soon as possible and in any event within
thirty (30) days after the Company or any Subsidiary Guarantor knows or has
reason to know thereof: (i) the occurrence or expected occurrence of any
Reportable Event with respect to any Plan, or any withdrawal from, or the
termination, Reorganization or Insolvency of any Multiemployer Plan or (ii)
the institution of proceedings or the taking of any other action by the
PBGC or the Company or any Commonly Controlled Entity or any Multiemployer
Plan with respect to the withdrawal from, or the terminating,
Reorganization or Insolvency of, any Plan;
(e) a material adverse change in the business, operations, assets or
position (financial or otherwise) of the Company, Individual Guarantor or
any Subsidiary Guarantor; and
28
(f) any default by Company, Individual Guarantor or any Subsidiary
under any other Indebtedness including, without limitation, any
Indebtedness owing to any other party to the Intercreditor Agreements.
Each notice pursuant to this subsection shall be accompanied by a statement of a
Responsible Officer setting forth details of the occurrence referred to therein
and stating what action the Company, Individual Guarantor or Subsidiary
Guarantor proposes to take with respect thereto.
6.8 Environmental Laws.
------------------
(a) Comply with, and insure material compliance by all tenants and
subtenants, if any, with, all applicable Environmental Laws and obtain and
comply with and maintain, and insure that all tenants and subtenants obtain
and comply with and maintain, any and all licenses, registrations or
permits required by applicable Environmental Laws;
(b) conduct all investigations, studies, sampling and testing, and all
remedial, removal and other actions required of the Company or any
Subsidiary Guarantor under applicable Environmental Laws and comply with
all lawful orders against the Company or any Subsidiary Guarantor of all
Governmental Authorities respecting applicable Environmental Laws; and
(c) defend, indemnify and hold harmless the Bank and its employees,
agents, officers and directors, from and against any claims, demands,
penalties, fines, liabilities, settlements, damages, costs and expenses of
whatever kind or nature known or unknown, contingent or otherwise, arising
out of, or in any way relating to the material violation of or
noncompliance by the Company or any Subsidiary Guarantor with any
applicable Environmental Laws or the presence of any Hazardous Wastes on
any property owned or operated by Company or any Subsidiary Guarantor, or
any orders, requirements or demands of Governmental Authorities related
thereto, including, without limitation, reasonable attorney's and
consultant's fees, investigation and laboratory fees, court costs and
litigation expenses. The covenants contained in this Section shall survive
the repayment of the Indebtedness hereunder and the termination of this
Agreement.
6.9 Accounts. Maintain the Operating Account at Bank into which
--------
advances of the Loan may be made in accordance with Section 2.3.
6.10 ERISA. Fund all Plans in accordance with ERISA and not permit,
-----
with respect to a Single Employer Plan, any unfunded pension liability or
Reportable Event to occur that
29
could reasonably result in a Material Adverse Effect, and cause each Plan (other
than a Multiemployer Plan) to comply in all material respects with the
provisions of ERISA and the Code and all other Requirements of Law and the
respective requirements of the governing documents for such Plans. With respect
to any Plan (other than a Multiemployer Plan), neither Company, any Commonly
Controlled Entity, nor any such Plan shall engage in any Prohibited Transaction,
incur any "accumulated funding deficiency" (as defined in ERISA) whether or not
waived, under fund or terminate any Plan in an manner which could result in the
imposition of a Lien on any assets of the Company or any Commonly Controlled
Entity under ERISA, or take, or permit to be taken, any act which would
constitute a violation of Section 4.13 except for such actions, omissions or
failures that would not in the aggregate reasonably result in a Material Adverse
Effect.
SECTION 7. NEGATIVE COVENANTS
The Company and each Subsidiary Guarantor hereby agrees that, so long
as the Revolving Credit Commitment remains in effect, any Note (or Letter of
Credit) remains outstanding and unpaid or any other Indebtedness is owing to the
Bank hereunder or under any other Loan Document, the Company and each Subsidiary
Guarantor shall not:
7.1 Financial Condition Covenants
-----------------------------
(a) Maintenance of Tangible Net Worth. Permit Tangible Net Worth
---------------------------------
(measured at the end of each fiscal quarter beginning with the quarter
ended December 31, 1996) of Company and Subsidiary Guarantors on a
consolidated basis to be less than the sum of: $1,750,000 (giving effect to
the 1996 tax allowance) plus seventy-five percent (75%) of cumulative
----
Corporate Net Income (after allowance for shareholders tax liability if S
corporation election is made and after allowance for member tax liability
with respect to limited liability companies including allowance for such
shareholder and member tax liabilities for the period ending December 31,
1996) for each fiscal quarter beginning with the quarter ending March 31,
1997, plus any amounts received in connection with the issuance of any
----
Capital Stock.
(b) Leverage Ratio. Permit the Leverage Ratio to be greater than the
--------------
amount set opposite such period below:
30
Period Ratio
------ -----
Closing Date through
Fiscal Year Ending
December 31, 1997 2.8 to 1
January 1, 1998 through
June 30, 1998 2.5 to 1
For each period after
June 30, 1998 2.0 to 1
The Leverage Ratio shall be measured at the end of each fiscal quarter on a
rolling four-quarter basis.
(c) Fixed Charges Coverage Ratio. Permit Fixed Charges Coverage of
----------------------------
Company and Subsidiary Guarantors on a consolidated basis to be less than or
equal to the ratio set forth opposite such period below:
Period Ratio
------ -----
Closing Date through
Fiscal Year Ending
December 31, 1997 1.25 to 1
Fiscal Year Ending
December 31, 1998 1.35 to 1
For each period after
December 31, 1998 1.4 to 1
The Fixed Charges Coverage ratio shall be measured at the end of each fiscal
quarter on a rolling four-quarter basis.
7.2 Limitation on Indebtedness. Create, incur, assume or suffer to
--------------------------
exist any Indebtedness, except: (i) Indebtedness in respect of the Loan, the
Note and other obligations of the Company under this Agreement and the other
Loan Documents; (ii) accounts payable for goods or services which are incurred
in the ordinary course of business; (iii) Indebtedness permitted under the
Intercreditor Agreements to the extent such Indebtedness is subordinated to the
Indebtedness owing to the Bank pursuant to the Intercreditor Agreements; (iv)
Indebtedness relating to purchase money security interests to the extent
permitted under Subsection 7.3 below; and (v) Indebtedness from a Subsidiary
Guarantor to the Company or between or among Subsidiary Guarantors.
7.3 Limitation on Liens. Create, incur, assume or suffer to exist any
-------------------
Lien upon any of its property, assets or revenues (including, without
limitation, the Collateral), whether now owned or hereafter acquired, except for
(i) Liens for taxes
31
not yet due or which are being contested in good faith by appropriate
proceedings, provided that adequate reserves with respect thereto are maintained
--------
on the books of the Company or Subsidiary Guarantor (as applicable) in
conformity with GAAP, (ii) Liens in favor of the Bank under the Loan Documents,
(iii) Liens in favor of Sirrom Capital Corporation to the extent such Liens are
subordinated to the Liens in favor of the Bank pursuant to the provisions of the
Intercreditor Agreements, (iv) Liens for purchase money security interests on
the assets financed with such purchase money loans so long as the aggregate
amount of such purchase money loans does not exceed $150,000 per calendar year,
and (v) mechanics' and materialmens' Liens for amounts payable by the Company or
a Subsidiary Guarantor which are not yet due or which are being contested in
good faith by appropriate proceedings, provided that adequate reserves with
--------
respect thereto are maintained on the books of the Company or Subsidiary
Guarantor (as applicable) in conformity with GAAP ("Permitted Liens").
7.4 Limitation on Guarantee Obligations. Create, incur, assume or
-----------------------------------
suffer to exist any Guarantee Obligation other than the Guarantee Obligations of
the Subsidiary Guarantors in favor of the Bank and in favor of Sirrom Capital
Corporation so long as such Guarantee Obligations are subordinated to the
Indebtedness owing to the Bank in accordance with the provisions of the
Intercreditor Agreements.
7.5 Limitations on Fundamental Changes. Enter into any merger,
----------------------------------
consolidation or amalgamation, or liquidate, wind up or dissolve itself (or
suffer any liquidation or dissolution), or convey, sell, lease, assign, transfer
or otherwise dispose of, all or substantially all of its property, business or
assets, or make any material change in its present method of conducting
business. Neither Company nor any Subsidiary Guarantor shall have any
Affiliates (other than Creditors' Adjustment Bureau, Inc.) or subsidiaries which
are engaged in the check cashing or deferred deposit business or operate with
the trade style "Check into Cash" or any similar trade style other than Company
and the Subsidiary Guarantors (provided that Company may form such Subsidiaries
after the date of this Agreement if such Subsidiaries become Subsidiary
Guarantors before commencing active operation of their respective businesses).
All new Subsidiary Guarantors shall join in the Guarantee and shall execute an
appropriate Security Agreement and other Security Documents, and the Company
shall execute appropriate stock/membership pledge agreements relating to the
Capital Stock of all new Subsidiary Guarantors. Neither Company nor any
Subsidiary Guarantor shall begin operations in any new market or other territory
without providing Bank prior written notice of the intended operations and
providing Bank all UCC-l Financing Statements and other documents necessary to
perfect Bank's interest in the Collateral in or with respect to the new market
or territory.
32
7.6 Limitation on Sale of Assets. Convey, sell, lease, assign,
----------------------------
transfer or otherwise dispose of any of its property, business or assets
(including, without limitation, receivables and leasehold interests and
including, without limitation, the Collateral), whether now owned or hereafter
acquired, except that any Subsidiary Guarantor may enter into any such
transaction with the Company or any other Subsidiary Guarantor.
7.7 Limitation on Dividends and Stock Redemption. Declare or pay any
--------------------------------------------
dividend (other than dividends payable solely in common stock) on, make any
other distribution in respect of, or make any payment on account of, or set
apart assets for a sinking or other analogous fund for, the purchase,
redemption, defeasance, retirement or other acquisition of, any Capital Stock of
the Company or any Subsidiary Guarantor or any warrants or options to purchase
any such Capital Stock, whether now or hereafter outstanding, or make any other
distribution in respect thereof, either directly or indirectly, whether in cash
or property or in obligations of the Company or any Subsidiary Guarantor except
that (i) any Subsidiary Guarantor which is a limited liability company may make
distributions to its members in the amount necessary for those members to pay
income taxes on amounts attributable to the operations of the Subsidiary
Guarantor; (ii) any Subsidiary Guarantor may make distributions to any other
Subsidiary Guarantor or the Company, as the case may be; and (iii) the Company,
as appropriate and required, may redeem the shares of restricted stock issued to
Steven Scoggins in accordance with the terms described on Exhibit 4.19.
7.8 Intentionally omitted.
---------------------
7.9 Limitation on Investments, Loans and Advances. Make any advance,
---------------------------------------------
loan, extension of credit or capital contribution to, or purchase any stock,
bonds, notes, debentures or other securities of or any assets constituting a
business unit of, or make any other investment in, any Person, except:
(a) advances of cash in the ordinary course of business; and
(b) investments in and loans to (i) the Subsidiary Guarantors by the
Company or any other Subsidiary Guarantor or (ii) the Company by any
Subsidiary Guarantor (provided that the Company or the Subsidiary Guarantor
(as the case may be) making such loan or advance shall, if such loan or
advance is evidenced by an instrument or other document, deliver such
document or instrument to the Bank with all necessary endorsements as
additional Collateral); and
(c) investments in Cash Equivalents.
33
7.10 Transactions with Affiliates. Enter into any transaction,
----------------------------
including, without limitation, any purchase, sale, lease or exchange of property
or the rendering of any service, with any Affiliate or Subsidiary unless such
transaction is otherwise not prohibited under this Agreement, is in the ordinary
course of the Company's or Subsidiary Guarantor's business and is upon fair and
reasonable terms no less favorable to the Company or the Subsidiary Guarantor,
as the case may be, than it would obtain in a comparable arm's length
transaction with a Person not an Affiliate or Subsidiary. Without limiting the
generality of the foregoing, neither the Company nor any Subsidiary Guarantor
will transfer any funds to any other Affiliate or Subsidiary except that the
Company and the Subsidiary Guarantors may, in the ordinary course of business,
transfer funds among each other and the Company and Subsidiary Guarantors may
enter into transactions with other Affiliates and Subsidiaries if such
transactions are not prohibited by the preceding sentence, Section 7.2, or any
other provision of this Agreement or any other Loan Document.
7.11 Sale and Leaseback. Enter into any arrangement with any Person
------------------
providing for the leasing by the Company or the Subsidiary Guarantor of real or
personal property which has been or is to be sold or transferred by the Company
or the Subsidiary Guarantor to such Person or to any other Person to whom funds
have been or are to be advanced by such Person on the security of such property
or rental obligations of the Company or the Subsidiary Guarantor.
7.12 Fiscal Year. Permit the fiscal year of the Company or any
-----------
Subsidiary Guarantor to be any period other than January 1 through December 31.
7.13 Limitation on Negative Pledge Clauses. Enter into any agreement
-------------------------------------
with any Person other than the Bank and the parties to the Intercreditor
Agreements which prohibits or limits the ability of the Company or any
Subsidiary Guarantor to create, incur, assume or suffer to exist any Lien upon
any of its property, assets or revenues, whether now owned or hereafter
acquired.
7.14 Remuneration. Pay compensation, directly or indirectly, whether
------------
by way of salaries, bonuses, participations in pension or profit sharing plans,
fees under management contracts or professional services, to any of its
officers, directors, stockholders, members or owners, or other management and
key employees, or to any of their family members or relatives in amounts which
are in excess of the aggregate amount agreed to by Bank from time to time
provided, however, that Bank agrees that performance bonuses and similar
payments to management and key employees in an amount not exceeding $400,000 per
year on an aggregate basis (i.e., from all Subsidiary Guarantors and the
Company) may be made.
34
SECTION 8. EVENTS OF DEFAULT
8.1 Events of Default. If any of the following events shall occur:
-----------------
(a) The Company, the Individual Guarantor or any Subsidiary Guarantor
shall fail to pay any principal, interest or other sum when due under any
Note or any of the other Loan Documents (provided, however, that the
Company will be given the opportunity to cure the nonpayment of interest
under the Note within fifteen (15) days of Default two (2) times during any
twelve (12) month period); or
(b) Any representation or warranty made or deemed made by the Company,
the Individual Guarantor, or any Subsidiary Guarantor herein or in any
other Loan Document or which is contained in any certificate, document or
financial or other statement furnished at any time under or in connection
with this Agreement shall prove to have been incorrect in any material
respect on or as of the date made or deemed made; or
(c) The Company, the Individual Guarantor, or any Subsidiary Guarantor
shall default in the observance or performance of any covenant, term or
agreement contained in this Agreement or any of the other Loan Documents
(provided that the Company shall have forty-five (45) days after it knows
or through the exercise of reasonable diligence should have known of a
violation of a financial covenant in Section 7.1 to cure that Default if
curable and the Company shall have thirty (30) days after it knows or
through the exercise of reasonable diligence should have known of a
violation of any other term or agreement to cure that Default if curable,
if the violation was not intentionally caused by the Company or a
Subsidiary Guarantor, and if any delay resulting from the application of
the cure period will not have a Material Adverse Effect);
(d) The Company, the Individual Guarantor, or any Subsidiary Guarantor
shall (i) default in any payment of principal of or interest on any
Indebtedness (including, without limitation, any Indebtedness owing to
Bank, any of the parties to the Intercreditor Agreements, or any other
Person) or in the payment of any Guarantee Obligation, beyond the period of
grace (not to exceed 45 days), if any, provided in the instrument or
agreement under which such Indebtedness or Guarantee Obligation was
created; or (ii) default in the observance or performance of any other
covenant, term or agreement relating to any such Indebtedness or Guarantee
Obligation or contained in any instrument or agreement evidencing, securing
or relating thereto (subject to any applicable cure periods contained
therein), or any other event shall occur or condition exist,
35
the effect of which default or other event or condition is to cause, or to
permit the holder or holders of such Indebtedness or beneficiary or
beneficiaries of such Guarantee Obligation (or a trustee or agent on behalf
of such holder or holders or beneficiary or beneficiaries) to cause, with
the giving of notice if required, such Indebtedness to become due prior to
its stated maturity or such Guarantee Obligation to become payable unless
the default caused by the failure to observe or perform that covenant, term
or agreement or such other event or condition has been unconditionally
waived in writing by the holders of such of Indebtedness; or
(e) (i) The Company, the Individual Guarantor, or any Subsidiary
Guarantor shall commence any case, proceeding or other action (A) under any
existing or future law of any jurisdiction, domestic or foreign, relating
to bankruptcy, insolvency, reorganization or relief of debtors, seeking to
have an order for relief entered with respect to it, or seeking to
adjudicate it a bankrupt or insolvent, or seeking reorganization,
arrangement, adjustment, winding-up, liquidation, dissolution, composition
or other relief with respect to it or its debts, or (B) seeking appointment
of a receiver, trustee, custodian or other similar official for it or for
all or any substantial part of its assets, or the Company, the Individual
Guarantor, or any Subsidiary Guarantor shall make a general assignment for
the benefit of its creditors; or (ii) there shall be commenced against the
Company, the Individual Guarantor, or any Subsidiary Guarantor any case,
proceeding or other action of a nature referred to in clause (i) above
which (A) results in the entry of an order for relief or any such
adjudication or appointment or (B) remains undismissed, undischarged or
unbonded for a period of 30 days; or (iii) there shall be commenced against
the Company, the Individual Guarantor, or any Subsidiary Guarantor any
case, proceeding or other action seeking issuance of a warrant of
attachment, execution, distraint or similar process against all or any
substantial part of its assets which results in the entry of an order for
any such relief which shall not have been vacated, discharged, or stayed or
bonded pending appeal within 30 days from the entry thereof; or (iv) the
Company, the Individual Guarantor, or any Subsidiary Guarantor shall take
any action in furtherance of, or indicating its consent to, approval of, or
acquiescence in, any of the acts set forth in clause (i), (ii), or (iii)
above; or (v) the Company, the Individual Guarantor, or any Subsidiary
Guarantor shall generally not, or shall be unable to, or shall admit in
writing its inability to, pay its debts as they become due; or
(f) (i) The Company or any of its Affiliates or Subsidiaries shall
engage in any "prohibited transaction"
36
(as defined in Section 406 of ERISA or Section 4975 of the Code) involving
any Plan, (ii) any "accumulated funding deficiency" (as defined in Section
302 of ERISA), whether or not waived, shall exist with respect to any Plan,
(iii) a Reportable Event shall occur with respect to, or proceedings shall
commence to have a trustee appointed, or a trustee shall be appointed, to
administer or to terminate, any Single Employer Plan, which Reportable
Event or commencement of proceedings or appointment of a trustee is, in the
reasonable opinion of the Bank, likely to result in the termination of such
Plan for purposes of Title IV of ERISA, (iv) any Single Employer Plan shall
terminate for purposes of Title IV of ERISA, (v) the Company or any
Commonly Controlled Entity or Subsidiary shall, or in the reasonable
opinion of the Bank is likely to, incur any liability in connection with a
withdrawal from, or the Insolvency or Reorganization of, a Multiemployer
Plan or (vi) any other adverse event or condition shall occur or exist,
with respect to a Plan; and in each case in clauses (i) through (vi) above,
such event or condition, together with all other such events or conditions,
if any, could subject the Company or any Subsidiary Guarantor to any tax,
penalty or other liabilities that could reasonably result in a Material
Adverse Effect; or
(g) One or more final judgments or decrees shall be entered against
the Company, the Individual Guarantor, or any Subsidiary Guarantor
involving in the aggregate a liability (not paid or fully covered by
insurance) of Fifty Thousand Dollars ($50,000.00) or more and all such
judgments and decrees shall remain unsatisfied for 30 days from the entry
thereof or if any execution or similar process is issued with respect to
any such judgment or decree; or
(h) A Change in Control shall occur; or
(i) The Security Documents shall at any time cease to create a valid
and perfected first priority Lien on the Collateral subject only to
Permitted Liens; or
(j) The Guarantee (or any of them) shall at any time cease to be in
full force and affect or shall be declared null and void, or the validity or
enforceability thereof shall be contested by the Individual Guarantor or any
Subsidiary Guarantor, or the Individual Guarantor or any Subsidiary Guarantor
shall deny it has any further liability or obligation thereunder or shall fail
to perform its obligations thereunder or if the Individual Guarantor shall die
or become incompetent; or
(k) Any default or event of default occurs under any of the other Loan
Documents (including, without limitation
37
any default under the Intercreditor Agreements by any party thereto);
(l) If in the reasonable judgement of Bank a materially adverse change
in the business, operations, assets, or position (financial or otherwise)
of the Company and the Subsidiary Guarantors taken as a whole, or of the
Individual Guarantor, has occurred or the occurrence of any other condition
which, in Bank's reasonable determination, constitutes an impairment of the
Company's and the Subsidiary Guarantor's ability (taken as a whole) or the
Individual Guarantor's ability to perform its obligations under the Loan
Documents, the foregoing including, without limitation, any materially
adverse decision in the litigation described in Exhibit 4.6.
then, and in any such event (after the expiration of any applicable cure period)
(A) if such event is an Event of Default specified in paragraph (e) above
automatically the Revolving Credit Commitment shall immediately terminate and
the Loan hereunder (with accrued interest thereon) and all other amounts owing
under this Agreement, the Note and all other Loan Documents shall immediately
become due and payable, and (B) if such event is any other Event of Default, the
following actions (or any of them) may be taken: (i) the Bank may in its sole
discretion and without notice to the Company or any other Person declare the
Revolving Credit Commitment to be terminated forthwith, whereupon the Revolving
Credit Commitment shall immediately terminate; (ii) the Bank may in its sole
discretion and without notice to the Company or any other Person declare the
Loan hereunder (with accrued interest thereon) and all other amounts owing under
this Agreement, the Note and the other Loan Documents to be immediately due and
payable, whereupon the same shall immediately become due and payable. Except as
expressly provided in this Agreement, presentment, demand, protest and all
notices of any kind are hereby expressly waived. In addition to the remedies set
forth above, upon the occurrence of any Event of Default the Bank may
immediately exercise any and all rights and remedies possessed by it pursuant to
the terms of the Security Documents and the other Loan Documents, all of the
rights and remedies of secured party under the UCC, and all other rights and
remedies which the Bank may now or hereafter possess at law, in equity or by
statute. In addition to all other remedies, upon the occurrence of any Event of
Default, the Company and each Subsidiary Guarantor shall immediately deliver to
the Bank all checks, drafts and other instruments and Collateral then in
possession of the Company or any Subsidiary Guarantor with all endorsements
requested by Bank.
SECTION 9. MISCELLANEOUS
9.1 Amendments and Waivers. Neither this Agreement, any Note, any
----------------------
other Loan Document, nor any terms hereof of
38
thereof may be amended, supplemented, modified or waived except in writing
signed by the party sought to be bound thereby. No such waiver shall extend to
any subsequent or other Default or Event of Default, or impair any right
consequent thereon.
9.2 Notices. All notices, requests and demands to or upon the
-------
respective parties hereto to be effective shall be in writing (including by
telecopy, telegraph or telex), and, unless otherwise expressly provided herein,
shall be deemed to have been duly given or made when delivered by hand, three
days after being deposited in the mail, postage prepaid, when deposited with a
national overnight carrier service, or, in the case of telecopy notice, when
received, addressed as follows, or to such other address as may be hereafter
notified by the respective parties hereto and any future holders of the Note:
The Company and
Subsidiary Guarantors: Check Into Cash, Inc.
205 Second Street, N.W.
Cleveland, Tennessee 37364
Attention: Chief Financial Officer
Facsimile: 423/476-9200
The Bank: NationsBank of Tennessee, N.A.
One Republic Centre
633 Chestnut Street
Chattanooga, Tennessee 37450
Attention: Lawrence Richey
Senior Vice President
Facsimile: 423/755-0689
9.3 No Waiver; Cumulative Remedies. No failure to exercise and no
------------------------------
delay in exercising, on the part of the Bank, any right, remedy, power or
privilege hereunder or under any other Loan Document shall operate as a waiver
thereof, nor shall any single or partial exercise of any right, remedy, power or
privilege hereunder preclude any other or further exercise thereof or the
exercise of any other right, remedy, power or privilege. The rights, remedies,
powers and privileges provided herein and in the other Loan Documents are
cumulative and not exclusive of any rights, remedies, powers and privileges
provided by law, in equity or by statute.
9.4 Survival of Representations and Warranties. All representations
------------------------------------------
and warranties made hereunder, under any other Loan Document, and in any
document, certificate or statement delivered pursuant hereto or in connection
herewith shall survive the execution and delivery of this Agreement, the Note
and the other Loan Documents.
9.5 Payment of Expenses and Taxes. The Company and each Subsidiary
-----------------------------
Guarantor jointly and severally agrees (a) to pay or reimburse the Bank for all
its reasonable out-of-pocket costs
39
and expenses incurred in connection with the development, preparation and
execution of, and any amendment, supplement or modification to, this Agreement
and the Note and the other Loan Documents and any other documents prepared in
connection herewith or therewith, and the consummation of the transactions
contemplated hereby and thereby, including, without limitation, the reasonable
fees and disbursements of counsel to the Bank, (b) to pay or reimburse the Bank
for all its reasonable costs and expenses incurred in connection with the
enforcement or preservation of any rights under this Agreement, the Note, the
other Loan Documents and any such other documents, including, without
limitation, the reasonable fees and disbursements of counsel to the Bank, and
(c) to pay, indemnify, and hold the Bank harmless from, any and all recording
and filing fees and any and all liabilities with respect to, or resulting from
any delay in paying, stamp, excise and other taxes, if any, which may be payable
or determined to be payable in connection with the execution and delivery of, or
consummation of any of the transactions contemplated by, or any amendment,
supplement or modification of, or any waiver or consent under or in respect of,
this Agreement, the Note, the other Loan Documents and any such other documents,
and (d) to pay, indemnify, and hold the Bank harmless from and against any and
all other liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature
whatsoever with respect to the execution, delivery, enforcement, performance and
administration of this Agreement, the Note, the other Loan Documents and any
such other documents.
9.6 Successors and Assigns; Participations. This Agreement, the Note
--------------------------------------
and all the other Loan Documents may be endorsed, assigned and/or transferred in
whole or in part by Bank, and any such holder and/or assignee of the same shall
succeed to and be possessed of the rights and powers of the Bank under all of
the same to the extent transferred and assigned. Bank may grant participations
in all or any portion of its interest in this Agreement and the other Loan
Documents to any other Person ("Participants"). In the event of any sale or
other transfer or assignment by the Bank of any interest in this Agreement or
the other Loan Documents or the participation of this Agreement or any of the
other Loan Documents to any Participant, the Bank shall remain responsible for
the Revolving Credit Commitment in accordance with the terms of this Agreement.
The Company and each Subsidiary Guarantor authorizes Bank to disclose to any
prospective Participant and any prospective successor or assignee of Bank any
and all financial information in the Bank's possession concerning the Company,
the Individual Guarantor and the Subsidiary Guarantors which has been delivered
to the Bank by or on behalf of the Company pursuant to this Agreement or which
has been delivered to the Bank by or on behalf of the Company in connection with
such Bank's credit evaluation of the Company, Individual Guarantor, or any
Subsidiary Guarantor prior to becoming a party to this Agreement. Neither
Company nor
40
any Subsidiary Guarantor may assign any of its rights or delegate any of its
duties under this Agreement or any of the other Loan Documents without the prior
written consent of the Bank.
9.7 Adjustments; Set-off. In addition to any rights and remedies of
--------------------
the Bank provided by law, the Bank, its successors and assigns, and each
Participant shall have the right, without prior notice to the Company or any
Subsidiary Guarantor, any such notice being expressly waived by the Company and
Subsidiary Guarantors to the extent permitted by applicable law, upon the
occurrence of any Event of Default to set-off and appropriate and apply against
such amount then owing any and all deposits (general or special, time or demand,
provisional or final), in any currency, and any other credits, indebtedness or
claims, in any currency, in each case whether direct or indirect, absolute or
contingent, matured or unmatured, at any time held or owing by the Bank to or
for the credit or the account of the Company or any Subsidiary Guarantor.
9.8 Counterparts. This Agreement may be executed by one or more of
------------
the parties to this Agreement on any number of separate counterparts, and all of
said counterparts taken together shall be deemed to constitute one and the same
instrument.
9.9 Severability. Any provision of this Agreement or any other Loan
------------
Document which is prohibited or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction. In any action or
proceeding involving bankruptcy, insolvency, reorganization or other law
affecting the rights of creditors generally, if the indebtedness, obligations or
liabilities of Company or any Subsidiary Guarantor to Bank would otherwise be
held or determined to be void, invalid or unenforceable on account of the amount
of its liability hereunder or under any other Loan Document, notwithstanding any
other provision to the contrary, the amount of the liability of the affected
Company or Subsidiary Guarantor, without, further action by any party or any
other Person, shall be automatically limited and reduced to the highest amount
which is valid and enforceable as determined in such action or proceeding, it
being the intention of the parties that the indebtedness, obligations and
liabilities of the Company and the Subsidiary Guarantors hereunder and under the
other Loan Documents be valid and enforceable to the maximum extent permitted by
applicable law.
9.10 Integration. This Agreement represents the agreement of the
-----------
Company and the Bank with respect to the subject matter hereof, and there are no
promises, undertakings, representations or warranties by the Bank relative to
subject
41
matter hereof not expressly set forth or referred to herein or in the other Loan
Documents.
9.11 GOVERNING LAW. THIS AGREEMENT, THE NOTE AND THE OTHER LOAN
-------------
DOCUMENTS AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT,
THE NOTE AND THE OTHER LOAN DOCUMENTS SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF TENNESSEE WITHOUT
REFERENCE TO ANY CONFLICTS OF LAW PRINCIPLES.
9.12 Acknowledgements. The Company and each Subsidiary Guarantor
----------------
hereby acknowledges that:
(a) it has been advised by counsel in the negotiation, execution and
delivery of this Agreement and the Note and the other Loan Documents;
(b) the Bank has no fiduciary relationship to the Company or any
Subsidiary Guarantor, and the relationship between the Bank, on one hand,
and the Company and Subsidiary Guarantors, on the other hand, is solely
that of debtor and creditor; and
(c) no joint venture exists between the Bank and the Company or
Subsidiary Guarantors.
9.13 Further Assurances. The Company and each Subsidiary Guarantor
------------------
agrees from time to time to execute and deliver such additional documents,
instruments and agreements, and to take all actions necessary or required in
Bank's judgment, to more fully carry out the intent of this Agreement.
9.14 Release and Indemnification. Company and each Subsidiary
---------------------------
Guarantor releases Bank (and each director, officer, employee and agent of Bank)
from, and will jointly and severally indemnify and hold Bank (and each director,
officer, employee and agent of Bank) harmless against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses and disbursements of any kind or nature whatsoever, whether now
existing or hereafter arising, and regardless by whom asserted or imposed, which
arise out of, result from, or are otherwise connected with the transactions
contemplated by this Agreement, the other Loan Documents, and any of the rights
or remedies of Bank hereunder or thereunder unless and only to the extent that
it shall be finally judicially determined that such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses and
disbursements resulted primarily from the negligence or willful misconduct of
the Bank. Company and each Subsidiary Guarantor will jointly or severally pay or
reimburse all legal or other expenses reasonably incurred by Bank (and each
director, officer, employee and agent of Bank) in connection with the
investigation or defense of any action or proceeding (whether or not resulting
42
in liability) with respect to any such liabilities, obligations, losses,
damages, penalties, costs, expenses or disbursements in respect of which
indemnity may be sought pursuant to this subsection. The covenants of Company
and Subsidiary Guarantors contained in this subsection shall survive the
execution of this Agreement and the other Loan Documents and the repayment of
the Indebtedness hereunder and thereunder.
9.15 Joint and Several Liability. The liability of the Company and
---------------------------
each Subsidiary Guarantor hereunder is joint and several.
9.16 Arbitration. ANY CONTROVERSY OR CLAIM BETWEEN OR
-----------
AMONG THE PARTIES HERETO INCLUDING BUT NOT LIMITED TO THOSE ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, INCLUDING ANY CLAIM BASED
ON OR ARISING FROM AN ALLEGED TORT, SHALL BE DETERMINED BY BINDING ARBITRATION
IN ACCORDANCE WITH THE FEDERAL ARBITRATION ACT (OR IF NOT APPLICABLE, THE
APPLICABLE STATE LAW), THE RULES OF PRACTICE AND PROCEDURE FOR THE ARBITRATION
OF COMMERCIAL DISPUTES OF JUDICIAL ARBITRATION AND MEDIATION SERVICES, INC.
(J.A.M.S.), AND THE "SPECIAL RULES" SET FORTH BELOW. IN THE EVENT OF ANY
INCONSISTENCY, THE SPECIAL RULES SHALL CONTROL. JUDGMENT UPON ANY ARBITRATION
AWARD MAY BE ENTERED IN ANY COURT HAVING JURISDICTION. ANY PARTY TO THIS
AGREEMENT MAY BRING AN ACTION, INCLUDING A SUMMARY OR EXPEDITED PROCEEDING, TO
COMPEL ARBITRATION OF ANY CONTROVERSY OR CLAIM TO WHICH THIS AGREEMENT APPLIES
IN ANY COURT HAVING JURISDICTION OVER SUCH ACTION.
(a) SPECIAL RULES. THE ARBITRATION SHALL BE CONDUCTED IN HAMILTON
-------------
COUNTY, TENNESSEE AND ADMINISTERED BY J.A.M.S. WHO WILL APPOINT AN
ARBITRATOR; IF J.A.M.S. IS UNABLE OR LEGALLY PRECLUDED FROM ADMINISTERING
THE ARBITRATION, THEN THE AMERICAN ARBITRATION ASSOCIATION WILL SERVE. ALL
ARBITRATION HEARINGS WILL BE COMMENCED WITHIN 90 DAYS OF THE DEMAND FOR
ARBITRATION; FURTHER, THE ARBITRATOR SHALL ONLY UPON A SHOWING OF CAUSE, BE
PERMITTED TO EXTEND THE COMMENCEMENT OF SUCH HEARING FOR UP TO AN
ADDITIONAL 60 DAYS.
(b) RESERVATION OF RIGHTS. NOTHING IN THIS AGREEMENT SHALL BE
---------------------
DEEMED TO (I) LIMIT THE APPLICABILITY OF ANY OTHERWISE APPLICABLE STATUTES
OF LIMITATION OR REPOSE AND ANY WAIVERS CONTAINED IN THIS AGREEMENT; OR
(II) BE A WAIVER BY THE BANK OF THE PROTECTION AFFORDED TO IT BY 12 U.S.C.
SEC. 91 OR ANY SUBSTANTIALLY EQUIVALENT STATE LAW; OR (III) LIMIT THE RIGHT
OF THE BANK HERETO (A) TO EXERCISE SELF HELP REMEDIES SUCH AS (BUT NOT
LIMITED TO) SETOFF, OR (B) TO FORECLOSE AGAINST ANY REAL OR PERSONAL
PROPERTY COLLATERAL, OR (C) TO OBTAIN PROM A COURT PROVISIONAL OR ANCILLARY
REMEDIES SUCH AS (BUT NOT LIMITED TO) INJUNCTIVE RELIEF, WRIT OF POSSESSION
OR THE APPOINTMENT OF A RECEIVER. THE BANK MAY EXERCISE SUCH SELF HELP
RIGHTS, FORECLOSE UPON
43
SUCH PROPERTY, OR OBTAIN SUCH PROVISIONAL OR ANCILLARY REMEDIES BEFORE,
DURING AND AFTER THE PENDENCY OF ANY ARBITRATION PROCEEDING BROUGHT
PURSUANT TO THIS AGREEMENT. NEITHER THIS EXERCISE OF SELF HELP REMEDIES NOR
THE INSTITUTION OR MAINTENANCE OF ANY ACTION FOR FORECLOSURE OR PROVISIONAL
OR ANCILLARY REMEDIES SHALL CONSTITUTE A WAIVER OF THE RIGHT OF ANY PARTY,
INCLUDING THE CLAIMANT IN ANY SUCH ACTION, TO ARBITRATE THE MERITS OF THE
CONTROVERSY OF CLAIM OCCASIONING RESORT TO SUCH REMEDIES.
[REMAINDER OF PAGE LEFT INTENTIONALLY BLANK]
44
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered in Chattanooga, Tennessee by their proper and
duly authorized officers as of the day and year first above written.
COMPANY:
CHECK INTO CASH, INC.
By: [SIGNATURE APPEARS HERE]
------------------------------
Title: EXECUTIVE V.P.
BANK: [SIGNATURE APPEARS HERE]
----------------------------
NATIONSBANK OF TENNESSEE, N.A.
By: /s/ Lawrence M. Richey
------------------------------
Title: Senior Vice President
The undersigned Subsidiary Guarantors join in executing this Agreement for the
purpose of making the representations and warranties and agreeing to be bound by
the covenants and other agreements applicable to the Subsidiary Guarantors
hereunder.
CREDITCORP OF TENNESSEE, INC.
By: /s/ Fred Krosner
------------------------------
Title: V.P.
CHECK INTO CASH OF IOWA, INC.
By: /s/ Fred Krosner
------------------------------
Title: V.P.
45
CHECK INTO CASH OF KENTUCKY, LLC
By: /s/ Fred Krosner
------------------------------
Title: VP
CHECK INTO CASH OF INDIANA, LLC
By: /s/ Fred Krosner
------------------------------
Title: VP
CHECK INTO CASH OF ILLINOIS, LLC
By: /s/ Fred Krosner
-------------------------------
Title: VP
CHECK INTO CASH OF WISCONSIN, LLC
By: /s/ Fred Krosner
-------------------------------
Title: VP
JONES MANAGEMENT SERVICES, LLC.
By: /s/ Fred Krosner
------------------------------
Title: VP
46
CHECK INTO CASH HOLDINGS, INC.
By: /s/ Fred Krosner
-------------------------------------
Title: Vice President
CHECK INTO CASH OF CALIFORNIA, INC.
By: /s/ Fred Krosner
-------------------------------------
Title: Treasurer
CHECK INTO CASH OF NEBRASKA, INC.
By: /s/ Fred Krosner
-------------------------------------
Title: Vice President
CHECK INTO CASH OF MISSOURI, INC.
By: /s/ Fred Krosner
-------------------------------------
Title: Vice President
CHECK INTO CASH OF OHIO, LLC
By: /s/ Fred Krosner
-------------------------------------
Title: Vice President
47
STATE OF TENNESSEE :
: S.S. ###-##-####
COUNTY OF BRADLEY :
Before me, a Notary Public of the state and county aforesaid, personally
appeared Fred Krosner, with whom I am personally acquainted (or proved to me on
the basis of satisfactory evidence), and who, upon oath, acknowledged himself to
be Vice-President of Check into Cash, Inc., the within named bargainor, a
corporation, and that he as such Fred Krosner executed the foregoing instrument
for the purposes therein contained, by signing the name of the corporation by
himself as Vice-President.
WITNESS my hand and seal, at office in Bradley County, Tennessee, this
3rd day of June, 1997.
/s/ Claudia S. Gray
------------------------------
Notary Public
My Commission Expires: 11-5-2000
---------
48
STATE OF TENNESSEE :
: S.S. ###-##-####
COUNTY OF BRADLEY :
Before me, a Notary Public of the state and county aforesaid, personally
appeared Steve Scoggins, with whom I am personally acquainted (or proved to me
on the basis of satisfactory evidence), and who, upon oath, acknowledged himself
to be Executive Vice-President of Check into Cash of Iowa, Inc., the within
named bargainor, a corporation, and that he as such Steve Scoggins, executed the
foregoing instrument for the purposes therein contained, by signing the name of
the corporation by himself as Executive Vice-Pres.
WITNESS my hand and seal, at office in Bradley County, Tennessee, this
3rd day of June, 1997.
/s/ Claudia S. Gray
------------------------------
Notary Public
My Commission Expires: 11-5-2000
---------
49
EXHIBIT 4.6
-----------
LITIGATION
----------
CASE NAME COURT CASE NUMBER DATE FILED
- --------------------------------------------------------------------------------
Goins, et al v. Creditcorp Bradley County, TN V-96-175 3/4/96
Circuit Court
Bennett, et al v. W. Allan Bradley County, TN V-96-245 3/20/96
Jones, Jr. d/b/a Check Into Circuit Court
Cash
Bennett, et al v. Creditcorp Bradley County, TN V-96-249 3/20/96
d/b/a Check Into Cash Circuit Court
The two Bennett cases, along with several other similar lawsuits filed against
other defendants in the Bradley County Circuit Court, have all been consolidated
with the Goins case and are currently being treated as one lawsuit.
Claims. All three cases make the same allegations, that the check cashing
- ------
business in Tennessee violates the Tennessee usury statute, the federal Truth-
In-Lending Act, the Tennessee Consumer Protection Act, the Tennessee
Constitution, and other laws and regulations. The plaintiffs in all of the
consolidated cases, including the three cases specifically listed above, have
filed a motion for certification of a plaintiffs class. The defendants are
opposed to class action certification and have filed papers objecting to the
certification. A hearing was held on May 21, 1997, on the Plaintiffs' Motion for
Class Certification, and the court took the motion under advisement.
Amount Involved. The plaintiffs seek to recover prejudgment interest, three
- ---------------
times actual damages (although they do not specify the amount of their actual
damages), refund of fees, and twice the amount of all other charges, and
attorneys' fees and costs of litigation. No specific dollar amount is claimed.
Status. A Special Judge has been appointed to hear all of the consolidated cases
- ------
in Bradley County. An Answer has been filed on behalf of Creditcorp and W. Allan
Jones, Jr. in the Goins case denying all material allegations. Prior to the
-----
consolidation, Motions to Dismiss were filed on behalf of W. Allan Jones, Jr.
and Creditcorp in the two Bennett cases. These motions are still pending. Much
-------
discovery has already been accomplished, and the current discovery deadline is
July 24, 1997. The case is scheduled to go to trial on September 9, 1997, before
a jury.
EEOC Claim
----------
On or about February 25, 1997, a former employee of Creditcorp of
Tennessee, Inc., Susan L. West, who was employed in Tennessee, filed a complaint
with the EEOC against the Check into Cash, Inc. She alleges that she was denied
hospitalization coverage in connection with her colitis. Additionally, she
indicates she was discharged on September 10, 1996, because of poor performance
and because she was found under the influence of alcohol at work.
A response to the Charge of Discrimination was sent out on or about March
21, 1997. We believe the Check into Cash, Inc. has meritorious defenses and we
will assist them in vigorously defending the action, but at this point in time
it is difficult to assess potential for liability.
-2-
EXHIBIT 4.9
-----------
INTELLECTUAL PROPERTY
---------------------
United States Registration
- --------------------------------------------------------------------------------
| MARK | REG. NO. | REG. DATE | OWNER |
- --------------------------------------------------------------------------------
| CHECK INTO CASH & Design | 1,987,021 | July 16, 1996 | Check Into Cash, |
| | | | Inc. |
- --------------------------------------------------------------------------------
Tennessee State Registrations
- --------------------------------------------------------------------------------
| MARK | REG. NO. | REG. DATE | OWNER |
- --------------------------------------------------------------------------------
| CASH IN A FLASH | N/A | March 9, 1994 | Creditcorp |
| | | | |
- --------------------------------------------------------------------------------
| CHECK INTO CASH CHECK | N/A | March 9, 1994 | Creditcorp |
| SERVICES & Design | | | |
| | | | |
- --------------------------------------------------------------------------------
| IF YOU HAVE AN ACTIVE | N/A | June 28, 1994 | Creditcorp |
| CHECKING ACCOUNT AND | | | |
| NEED CASH TODAY, WE WILL | | | |
| CASH YOUR PERSONAL | | | |
| CHECK AND WAIT EITHER | | | |
| DAYS OR YOUR NEXT PAY | | | |
| DAY TO DEPOSIT | | | |
| | | | |
- --------------------------------------------------------------------------------
| OVERDRAFT CHECK | N/A | March 9, 1994 | Creditcorp |
| CASHING SERVICES | | | |
| | | | |
- --------------------------------------------------------------------------------
| QUICK, EASY, CONFIDENTIAL | N/A | March 9, 1994 | Creditcorp |
| | | | |
- --------------------------------------------------------------------------------
Wisconsin State Registration
- --------------------------------------------------------------------------------
| MARK | REG. NO. | REG. DATE | OWNER |
- --------------------------------------------------------------------------------
| CHECK INTO CASH | N/A | March 27, 1996| Creditcorp of |
| | | | Wisconsin, LLC |
- --------------------------------------------------------------------------------
EXHIBIT 4.10
------------
NON-COMPLIANCE WITH LAWS OR CONTRACTS
-------------------------------------
During the course of the litigation described in Exhibit 4.6,
Creditcorp of Tennessee, Inc. has been accused of violating laws relating to the
provision of consumer credit services. See Exhibit 4.6 for a more complete
description of these allegations.
In connection with the EEOC claim described in Exhibit 4.6, Check into
Cash, Inc. has been accused of violating laws relating to employment and the
provision of employee benefits. See Exhibit 4.6 for a more complete description
of these allegations.
EXHIBIT 4.15
------------
NON-GUARANTOR AFFILIATES
------------------------
Credit Bureau Services, Inc., a Tennessee corporation.
Jones Airways, LLC, a Tennessee limited liability company.
Creditors' Adjustment Bureau, Inc., a Tennessee corporation.
Preferred One, LLC, a Tennessee limited liability company.
EXHIBIT 4.19
------------
CAPITAL STOCK
-------------
Entity Shares Authorized Total Shares Owners
Issued &
Outstanding
Check into Cash, 5,000,000 Common 1,212,000 Common W. Allan Jones, Jr.
Inc. 720,000 shares;
1,000,000 Preferred -0- Preferred Janie Jones 480,000
shares;
Stephen Scoggins
36,000 shares.
Check into Cash 1,000 Common 1,000 Common Check into Cash,
Holdings, Inc. Inc. 1,000 shares.
Creditcorp of 10,000 Common 1,000 Common Check into Cash,
Tennessee, Inc. Inc. 1,500 shares.
Check into Cash of 1,000 Common 1,000 Common Check into Cash,
Iowa, Inc. Inc. 1,000 shares.
Check into Cash of n/a n/a Check into Cash,
Kentucky, LLC Inc. 99%;
Check into Cash
Holdings, Inc. 1%
Check into Cash of n/a n/a Check into Cash,
Indiana, LLC Inc. 99%;
Check into Cash
Holdings, Inc. 1%
Check into Cash of n/a n/a Check into Cash,
Illinois, LLC Inc. 99%;
Check into Cash
Holdings, Inc. 1%
Check into Cash of n/a n/a Check into Cash,
Wisconsin, LLC Inc. 99%;
Check into Cash
Holdings, Inc. 1%
Entity Shares Authorized Total Shares Owners
Issued &
Outstanding
Check into Cash of n/a n/a Check into Cash,
Ohio, LLC Inc. 99%;
Check into Cash
Holdings, Inc. 1%
Check into Cash of 1,000 Common 1,000 Common Check into Cash,
California, Inc. Inc. 1,000 shares.
Check into Cash of 1,000 Common 1,000 Common Check into Cash,
Nebraska, Inc. Inc. 1,000 shares.
Check into Cash of 1,000 Common 1,000 Common Check into Cash,
Missouri, Inc. Inc. 1,000 shares.
Jones Management n/a n/a Check into Cash,
Services, LLC Inc. 99%;
Check into Cash
Holdings, Inc. 1%
In addition to the above, Check into Cash, Inc. is party to the following
agreements relating to the purchase of its capital stock:
1. Stock Purchase Warrant, dated February 28, 1997, issued by Check into Cash,
Inc. to Sirrom Capital Corporation.
2. Check into Cash, Inc. 1997 Long Term Incentive Plan, dated January 10, 1997.
3. Restricted Stock Award Agreement, dated May 2, 1997, between Check into
Cash, Inc. and Stephen Scoggins.
-2-
EXHIBIT 2(f)
------------
PREVIOUS NAMES OF DEBTORS AND GUARANTORS
----------------------------------------
Current Name of Entity Previous Name(s) of Entity
Check into Cash, Inc. None.
Check into Cash Holdings, Inc. None.
Creditcorp of Tennessee, Inc. Creditcorp.
Check into Cash of Iowa, Inc. None.
Check into Cash of Kentucky, LLC. Creditcorp of Kentucky, LLC; COK, LLC;
Creditcorp of Kentucky, Inc.
Check into Cash of Indiana, LLC. Creditcorp of Indiana, LLC; Creditcorp
of Indiana, Inc.
Check into Cash of Illinois, LLC. Creditcorp of Illinois, LLC; Creditcorp
of Illinois, Inc.
Check into Cash of Wisconsin, LLC. Creditcorp of Wisconsin, LLC.
Check into Cash of Ohio, LLC. Creditcorp of Ohio, LLC; Creditcorp of
Ohio, Ltd.
Check into Cash of California, Inc. None.
Check into Cash of Nebraska, Inc. None.
Check into Cash of Missouri, Inc. None.
Jones Management Services, LLC. None.
FIRST AMENDMENT TO LOAN AGREEMENT
---------------------------------
THIS FIRST AMENDMENT TO LOAN AGREEMENT (the "Amendment"), dated as of
September 1, 1997, is made and entered into by and between CHECK INTO CASH,
INC., a Delaware corporation (the "Company"), and NATIONSBANK OF TENNESSEE,
N.A., a Tennessee corporation (the "Bank").
WITNESSETH
----------
WHEREAS, the Bank and the Company entered into a Loan Agreement, dated as
of June 2, 1997; and
WHEREAS, the Company is an "S" corporation under the Internal Revenue Code
of 1986, as amended; and
WHEREAS, the Bank and the Company agree that the covenants of the Company
in the Loan Agreement should not prevent the Company from making distributions
to its shareholders for the purpose of paying federal income taxes on the income
of Borrower that is attributed to Borrower's shareholders; and
WHEREAS, the Bank and the Company agree that the covenants of the Company
in the Loan Agreement should not prevent the Company from extending a loan to
Stephen Scoggins for the payment of income taxes incurred by Scoggins in
connection with the lapse of restrictions on shares of the Company's common
stock held by Scoggins and the grant of additional unrestricted shares of the
Company's common stock to Scoggins; and
WHEREAS, this Amendment shall amend the Loan Agreement.
AGREEMENT
---------
1. The Loan Agreement is hereby amended such that the following language
is added at the end of Section 7.7;
"(iv) the Company may, so long as it retains "S" corporation status under
the Internal Revenue Code, make distributions to its shareholders for the
payment of federal income taxes on Company income that is attributed to such
shareholders."
2. The parties agree that any distributions made prior to the date of this
Amendment that would have been permissible had this Amendment been in effect are
hereby approved by the Bank.
3. Bank hereby waives the Company's covenant not to extend credit or make
loans contained in Section 7.9 of the Loan Agreement, to the extent such
covenant prevents the Company from lending money to Stephen Scoggins
("Scoggins"), pursuant to Section 6(c) of that certain Employment Agreement,
dated as of July 31, 1997 by and between Scoggins and the Company (the
"Scoggins Employment Agreement"), for the payment of taxes incurred by Scoggins
in connection with the lapse of restrictions on shares of the Company's common
stock held by Scoggins and the grant of additional unrestricted shares of the
Company's common stock to Scoggins, pursuant to Sections 6(a) and 6(b) of the
Scoggins Employment Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their duly authorized officers, as of the date first written above.
NATIONSBANK OF TENNESSEE, N.A.
By: /s/ Lawrence M. Richey
----------------------------------
Title: Senior Vice President
-------------------------------
CHECK INTO CASH, INC.
By: /s/ Fred Krosner
----------------------------------
Title: VP
-------------------------------
-2-
SECOND AMENDMENT TO LOAN AGREEMENT AND LOAN DOCUMENTS
-----------------------------------------------------
THIS SECOND AMENDMENT TO LOAN AGREEMENT AND LOAN DOCUMENTS ("Second
Amendment") is entered into on October 23, 1997, among CHECK INTO CASH, INC., a
Delaware corporation (the "Company"), NATIONSBANK OF TENNESSEE, N.A., a national
banking association (the "Bank"), W. Allan Jones, Jr. ("Individual Guarantor"),
and Creditcorp of Tennessee, Inc., Check Into Cash of Iowa, Inc., Check into
Cash of Kentucky, LLC, Check into Cash of Indiana, LLC, Check Into Cash of
Illinois, LLC, Check Into Cash of Wisconsin, LLC, Check Into Cash of Ohio, LLC,
Jones Management Services, LLC, Check into Cash Holdings, Inc., Check into Cash
of California, Inc., Check into Cash of Nebraska, Inc., Check into Cash of
Missouri, Inc. (collectively "Subsidiary Guarantors").
WITNESSETH:
----------
WHEREAS, on June 2, 1997, the Company, the Bank, and the Subsidiary
Guarantors entered into a certain Loan Agreement (the "Original Agreement")
pursuant to which the Bank made a certain credit facility available to the
Company; and
WHEREAS, on September 1, 1997, the Company and the Bank entered into a
certain First Amendment to Loan Agreement (the "First Amendment"; the Original
Agreement as amended by the First Amendment and as amended hereby is referred to
as the "Agreement") in order to amend certain covenants contained in the
Original Agreement; and
WHEREAS, the parties have agreed to increase the Maximum Credit Amount
available under the Agreement and make certain other modifications to the
Agreement and the other Loan Documents;
NOW, THEREFORE, in consideration of the premises, the mutual covenants
contained herein, and other good and valuable consideration the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1. The definition of "Available Credit Commitment" as set forth in
Section 1.1 of the Agreement is amended to read as follows:
"Available Credit Commitment": means from time to time, as determined
----------------------------
as of the end of each month, the product determined by multiplying
Corporate EBITDA for the preceding twelve (12) months (on a trailing
12-month basis) times two (2); provided, however, that through and
including December 31, 1997, "Available Credit Commitment" shall mean
the product determined by multiplying Corporate EBITDA for the
preceding twelve
(12) months (on a trailing-12 month basis) times two and one-half
(2.5).
2. The definition of the term "Corporate EBITDA" as set forth in
Section 1.1 of the Agreement is amended to read as follows:
"Corporate EBITDA" with respect to the applicable periods as set forth
----------------
herein, the sum, without duplication, of (i) Corporate Net Income for
such period less gain on the sale of assets, dividends and other
distributions, withdrawals, and treasury stock purchases and similar
transactions and (ii) to the extent deducted in determining such
Corporate Net Income: (A) all income taxes, including but not limited
to, Federal, foreign and state income taxes (including any deferred
taxes); (B) Corporate Interest Expense; and (C) depreciation,
amortization and similar non-cash charges, provided, that there shall
--------
be excluded therefrom non-operating gains and non-operating losses,
and provided further that with respect to the fiscal year ending
----------------
December 31, 1996, there shall be added to the amount calculated in
accordance with the foregoing the 1996 tax distributions of
$297,733.00 made by the Company in December, 1996, and that with
respect to the fiscal year ending December 31, 1997, there shall be
added to the amount calculated in accordance with the foregoing the
compensation in the amount of $266,400.00 paid to Steven Scoggins by
the Company in August, 1997, in connection with the issuance of
Capital Stock in the Company to Steven Scoggins.
3. The definition of the term "Maximum Credit Amount" as set forth in
Section 1.1 of the Agreement is amended to read as follows:
"Maximum Credit Amount": means the lesser of (i) Eleven Million
---------------------
Five Hundred Thousand Dollars ($11,500,000.00) and (ii) the
Available Credit Commitment.
4. The definition of the term "Note" as set forth in Section 1.1 of
the Agreement is amended to read as follows:
"Note": the Amended and Restated Promissory Note dated October 23,
1997, in the principal amount of Eleven Million Five Hundred Thousand
Dollars ($l1,500,000.00) executed by the Company payable to Bank, as
the same may be amended, supplemented or otherwise modified from time
to time, together with all other promissory notes now or hereafter
payable by the Company or any
Subsidiary Guarantor to the Bank and all amendments, supplements, and
modifications thereof.
The Agreement, the Security Documents (including, without limitation, the
Guarantee, the Security Agreement, the Security Agreement and Collateral
Assignment of Membership Interests described below, the Pledge and Security
Agreement described below, and the Trademark Security Agreement described
below), and the other Loan Documents are amended so that: (i) all references to
the "Note" therein shall include, without limitation, the Amended and Restated
Promissory Note dated October 23, 1997, in the principal amount of Eleven
Million Five Hundred Thousand Dollars ($11,500,000.00) executed by the Company
payable to the Bank, as the same may be amended, supplemented or otherwise
modified from time to time; and (ii) all references to the "Loan Agreement"
shall include the Original Agreement as amended by the First Amendment and as
amended hereby, and as further amended, supplemented or otherwise modified from
time to time.
5. The definition of the term "Termination Date" as set forth in
Section 1.1 of the Agreement is amended to read as follows:
"Termination Date": October 23, 2000.
-----------------
6. The date "December 31, 1996" contained in Section 4.1 is deleted
and in place thereof the date "August 31, 1997" is inserted, the Company hereby
making all of the representations and warranties contained in Section 4.1 with
respect to the financial statements for the period ending August 31, 1997.
7. Section 7.1(b) of the Agreement is amended to read as follows:
(b) Leverage Ratio. Permit the Leverage Ratio to be greater than the
--------------
amount set opposite such period below:
Period Ratio
------ -----
Closing Date through Fiscal 2.8 to 1
Year ending December 31,
1997
January 1, 1998 through 2.5 to 1
December 31, 1998
For each period after 2.0 to 1
December 31, 1988
The Leverage Ratio shall be measured at the end of each fiscal quarter
on a rolling four-quarter basis.
8. Section 7.1(c) of the Agreement is amended to read as follows:
(c) Held Check Ratio. At any time permit the aggregate amount of (A)
----------------
all checks then being held by the Company and the Subsidiary
Guarantors plus (B) $3,000.00 for each store (location) then being
----
operated by Company and Subsidiary Guarantors to be greater than
Indebtedness for Borrowed Money (including subordinated Indebtedness
for Borrowed Money) after deducting the notes payable discount (if
any) permitted in accordance with GAAP with respect to the
Indebtedness for Borrowed Money owing to Sirrom Capital Corporation
and reflected on the consolidated balance sheet of the Company and the
Subsidiary Guarantors.
9. The following Section 7.15 is inserted in the Agreement:
7.15 Limitation on Acquisitions. Acquire any other Person (whether
--------------------------
through the acquisition of Capital Stock or acquisition of assets) if
the cash portion of the acquisition price paid by the Company or the
Subsidiary Guarantor is greater than $500,000.00.
10. Exhibit 4.6, Exhibit 4.9, and Exhibit 4.19 to the Agreement are
amended to read as attached to this Second Amendment.
11. The Company, the Individual Guarantor and the Subsidiary
Guarantors hereby reaffirm all of the representations and warranties contained
in Agreement, the Guarantee and the other Loan Documents and represent to the
Bank that such representations and warranties are true and correct as of the
date of this Second Amendment.
12. The Agreement and the other Loan Documents are hereby amended
where appropriate to reflect: (i) the increase in the Maximum Credit Amount;
(ii) the extension of the Termination Date until October 23, 2000; and (iii) the
other amendments set forth in this Second Amendment. The parties specifically
agree that the Security Agreement, the Guarantee, the Security Agreement and
Collateral Assignment of Membership Interest between the Company and the Bank
dated June 2, 1997, the Pledge and Security Agreement between the Company and
the Bank dated June 2, 1997, the Trademark Security Agreement between the
Company and the Bank dated June 2, 1997, and all of the other Security Documents
continue to secure all indebtedness, obligations and liabilities now or
hereafter owing by the Company, the Subsidiary Guarantors or the Individual
Guarantor (as applicable and as more specifically set forth in the Security
Documents) including the indebtedness, obligations and liabilities under the
Agreement and other Loan Documents as
amended hereby, it being the intention of the parties that the increase in the
amount of the Revolving Credit Commitment be entitled to all of the rights and
benefits of all of the Loan Documents. The parties to the Security Agreement and
Collateral Assignment of Membership Interest and the Pledge and Security
Agreement hereby acknowledge and consent to the continuing security interests
and assignments thereunder and to the extent permitted by applicable law waive
any requirements or conditions contained in any certificate of incorporation,
charter, bylaws, articles or certificate of organization, operating agreement,
shareholder or member agreement, or any other agreement or instrument of any
kind that would restrict the assignments and security interests created
thereunder (including, without limitation, any rights of first refusal, any
requirement that a opinion of counsel be obtained to the effect that no
registration under federal or state securities laws is required, and any other
prohibition or restriction on transfer).
13. The parties agree that the Agreement, the Guarantee, the Security
Documents, and all of the other Loan Documents remain in full force and effect
as amended hereby. Nothing in this Second Amendment shall constitute a novation
of the Agreement, the Guarantee, the Security Documents or any other Loan
Document. All capitalized terms used in this Second Amendment shall have the
meanings given such terms in the Agreement unless otherwise defined herein. The
Agreement and the other Loan Documents are incorporated herein by reference.
IN WITNESS WHEREOF, the parties executed this Second Amendment
effective as of the date first above written.
[COUNTERPART SIGNATURE PAGES ATTACHED]
COMPANY:
CHECK INTO CASH, INC.
By: [SIGNATURE APPEARS HERE]
------------------------------------
Title: PRESIDENT
------------------------------
BANK:
NATIONSBANK OF TENNESSEE, N.A.
By: /s/ Lawrence M. Richey
------------------------------------
LAWRENCE M. RICHEY
Senior Vice President
SUBSIDIARY GUARANTORS:
CREDITCORP OF TENNESSEE, INC.
By: /s/ Fred Krosner
------------------------------------
Title: VP
CHECK INTO CASH OF IOWA, INC.
By: /s/ Fred Krosner
------------------------------------
Title: VP
CHECK INTO CASH OF KENTUCKY, LLC
By: /s/ Fred Krosner
------------------------------------
Title: VP
CHECK INTO CASH OF INDIANA, LLC
By: /s/ Fred Krosner
------------------------------------
Title: VP
[COUNTERPART SIGNATURE PAGE]
CHECK INTO CASH OF ILLINOIS, LLC
By: /s/ Fred Krosner
--------------------------------------
Title: VP
CHECK INTO CASH OF WISCONSIN, LLC
By: /s/ Fred Krosner
--------------------------------------
Title: VP
JONES MANAGEMENT SERVICES, LLC.
By: /s/ Fred Krosner
--------------------------------------
Title: VP
CHECK INTO CASH HOLDINGS, INC.
By: /s/ Fred Krosner
--------------------------------------
Title: VP
CHECK INTO CASH OF CALIFORNIA, INC.
By: /s/ Fred Krosner
--------------------------------------
Title: VP
CHECK INTO CASH OF NEBRASKA, INC.
By: /s/ Fred Krosner
--------------------------------------
Title: VP
CHECK INTO CASH OF MISSOURI, INC.
By: /s/ Fred Krosner
--------------------------------------
Title: VP
[COUNTERPART SIGNATURE PAGE]
CHECK INTO CASH OF OHIO, LLC
By: /s/ Fred Krosner
--------------------------------------
Title: VP
[COUNTERPART SIGNATURE PAGE]
INDIVIDUAL GUARANTOR:
/s/ W. Allan Jones, Jr.
------------------------------------
W. ALLAN JONES, JR. Personally
STATE OF TENNESSEE
COUNTY OF Bradley
Before me, a Notary Public of the state and county aforesaid, personally
appeared W. ALLAN JONES, to me known (or proved to me on the basis of
satisfactory evidence) to be the person described in and who executed the
foregoing instrument, and acknowledged that he executed the same as his free act
and deed.
WITNESS my hand and seal, at office in Cleveland, Tennessee, this 23rd day
of October, 1997.
/s/ Claudia S. Gray
------------------------------------
Notary Public
My Commission Expires: 11-5-2000
---------
[COUNTERPART SIGNATURE PAGE]
EXHIBIT 4.6
-----------
LITIGATION
----------
CASE NAME COURT CASE NUMBER DATE FILED
- --------------------------------------------------------------------------------
Goins, et al v. Creditcorp Bradley County, TN V-96-I75 3/4/96
Circuit Court
Bennett, et al v. W. Allan Bradley County, TN V-96-245 3/20/96
Jones, Jr. d/b/a Check Into Circuit Court
Cash
Bennett, et al v. Creditcorp Bradley County, TN V-96-249 3/20/96
d/b/a Check Into Cash Circuit Court
The two Bennett cases, along with several other similar lawsuits filed against
other defendants in the Bradley County Circuit Court, have all been consolidated
with the Goins case and are currently being treated as one lawsuit.
Claims. All three cases make the same allegations, that the check cashing
- ------
business in Tennessee violates the Tennessee usury statute, the federal Truth-
In-Lending Act, the Tennessee Consumer Protection Act, the Tennessee
Constitution, and other laws and regulations. The plaintiffs in all of the
consolidated cases, including the three cases specifically listed above, have
filed a motion for certification of a plaintiffs class. The defendants are
opposed to class action certification and have filed papers objecting to the
certification. A hearing was held on May 21, 1997, on the Plaintiffs' Motion
for Class Certification, and the court took the motion under advisement.
Amount Involved. The plaintiffs seek to recover prejudgment interest, three
- ---------------
times actual damages (although they do not specify the amount of their actual
damages), refund of fees, and twice the amount of all other charges, and
attorneys' fees and costs of litigation. No specific dollar amount is claimed.
Status. A Special Judge has been appointed to hear all of the consolidated cases
- ------
in Bradley County. An Answer has been filed on behalf of Creditcorp and W. Allan
Jones, Jr. in the Goins case denying all material allegations. Prior to the
consolidation, Motions to Dismiss were filed on behalf of W. Allan Jones, Jr.
and Creditcorp in the two Bennett cases. These motions are still pending. Much
discovery has already been accomplished, and the current discovery deadline is
July 24, 1997. As of October 9, 1997, the parties are engaged in settlement
negotiations, subject to a definitive settlement agreement and approval of such
agreement by the Special Judge appointed to hear this case.
EEOC Claim
----------
On or about February 25, 1997, a former employee of Creditcorp of
Tennessee, Inc., Susan L. West, who was employed in Tennessee, filed a complaint
with the EEOC against the Check into Cash, Inc. She alleges that she was denied
hospitalization coverage in connection with her colitis. Additionally, she
indicates she was discharged on September 10, 1996, because of poor performance
and because she was found under the influence of alcohol at work.
A response to the Charge of Discrimination was sent out on or about
March 21, 1997. We believe the Check into Cash, Inc. has meritorious defenses
and we will assist them in vigorously defending the action, but at this point in
time it is difficult to assess potential for liability.
-2-
EXHIBIT 4.9
-----------
INTELLECTUAL PROPERTY
---------------------
United States Registration
- -------------------------------------------------------------------------------
|MARK | REG. NO./ | REG. DATE/ | OWNER |
| | APP. NO. | FILING DATE | |
|---------------------------|-------------|-----------------|-----------------|
|CHECK INTO CASH & Design | 1,987,021 | July 16, 1996 | Check Into Cash,|
| | | | Inc. |
| | | | |
|---------------------------|-------------|-----------------|-----------------|
|BOB CA$H CHECK INTO CA$H | 75/308009 | June 12, 1997 | Check Into Cash,|
|CASH ADVANCE IT'S QUICK, | | | Inc. |
|EASY & CONFIDENTIAL and | | | |
|Design | | | |
- -------------------------------------------------------------------------------
Tennessee State Registrations
- -------------------------------------------------------------------------------
|MARK | REG. NO. | REG. DATE | OWNER |
|---------------------------|-------------|-----------------|-----------------|
|CASH IN A FLASH | N/A | March 9, 1994 | Creditcorp |
| | | | |
|---------------------------|-------------|-----------------|-----------------|
|CHECK INTO CASH CHECK | N/A | March 9, 1994 | Creditcorp |
|SERVICES & Design | | | |
| | | | |
|---------------------------|-------------|-----------------|-----------------|
|IF YOU HAVE AN ACTIVE | N/A | June 28, 1994 | Creditcorp |
|CHECKING ACCOUNT AND | | | |
|NEED CASH TODAY, WE WILL | | | |
|CASH YOUR PERSONAL | | | |
|CHECK AND WAIT EITHER... | | | |
|DAYS OR YOUR NEXT PAY | | | |
|DAY TO DEPOSIT | | | |
| | | | |
|---------------------------|-------------|-----------------|-----------------|
|OVERDRAFT CHECK | N/A | March 9, 1994 | Creditcorp |
|CASHING SERVICES | | | |
| | | | |
|---------------------------|-------------|-----------------|-----------------|
|QUICK, EASY, CONFIDENTIAL | N/A | March 9, 1994 | Creditcorp |
| | | | |
- -------------------------------------------------------------------------------
Wisconsin State Registration
- -------------------------------------------------------------------------------
|MARK | REG. NO. | REG. DATE | OWNER |
- -------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
CHECK INTO CASH N/A March 27, 1996 Creditcorp of
Wisconsin, LLC
- --------------------------------------------------------------------------------
-4-
EXHIBIT 4.19
------------
CAPITAL STOCK
-------------
Entity Shares Authorized Total Shares Owners
Issued &
Outstanding
Check into Cash, 5,000,000 Common 1,212,000 Common W. Allan Jones, Jr.
Inc. 720,000 shares;
1,000,000 Preferred -0- Preferred Janie Jones 480,000
shares;
Stephen Scoggins
36,000 shares.
Check into Cash 1,000 Common 1,000 Common Check into Cash,
Holdings, Inc. Inc. 1,000 shares.
Creditcorp of 10,000 Common 1,000 Common Check into Cash,
Tennessee, Inc. Inc. 1,500 shares.
Check into Cash of 1,000 Common 1,000 Common Check into Cash,
Iowa, Inc. Inc. 1,000 shares.
Check into Cash of n/a n/a Check into Cash,
Kentucky, LLC Inc. 99%;
Check into Cash,
Holdings, Inc. 1%
Check into Cash of n/a n/a Check into Cash,
Indiana, LLC Inc. 99%;
Check into Cash
Holdings, Inc. 1%
Check into Cash of n/a n/a Check into Cash,
Illinois, LLC Inc. 99%;
Check into Cash
Holdings, Inc. 1%
Check into Cash of n/a n/a Check into Cash,
Wisconsin, LLC Inc. 99%;
Check into Cash
Holdings, Inc. 1%
Entity Shares Authorized Total Shares Owners
Issued &
Outstanding
Check into Cash of n/a n/a Check into Cash,
Ohio, LLC Inc. 99%;
Check into Cash
Holdings, Inc. 1%
Check into Cash of 1,000 Common 1,000 Common Check into Cash,
California, Inc. Inc. 1,000 shares.
Check into Cash of 1,000 Common 1,000 Common Check into Cash,
Nebraska, Inc. Inc. 1,000 shares.
Check into Cash of 1,000 Common 1,000 Common Check into Cash,
Missouri, Inc. Inc. 1,000 shares.
Jones Management n/a n/a Check into Cash,
Services, LLC Inc. 99%;
Check into Cash
Holdings, Inc. 1%
In addition to the above, Check into Cash, Inc. is party to the
following agreements relating to the purchase of its capital stock:
1. Stock Purchase Warrant, dated February 28, 1997, issued by Check into
Cash, Inc. to Sirrom Capital Corporation.
2. Check into Cash, Inc. 1997 Long Term Incentive Plan, dated January 10,
1997.
-2-
EX-10.3
4
SIRROM CAPITAL CORPORATION $7,000,000 LOAN AGREEMENT
EXHIBIT 10.3
AMENDED AND RESTATED LOAN AGREEMENT
-----------------------------------
THIS AMENDED AND RESTATED LOAN AGREEMENT ("Agreement"), dated as of the
28th day of February, 1997, is made and entered into on the terms and conditions
hereinafter set forth, by and between CHECK INTO CASH, INC., a Delaware
corporation ("Borrower"), and SIRROM CAPITAL CORPORATION, a Tennessee
corporation ("Lender").
RECITALS:
--------
WHEREAS, Lender made a loan to Creditcorp of Tennessee, Inc. (f/k/a
Creditcorp.), Creditcorp of Kentucky, LLC, Creditcorp of Illinois, LLC,
Creditcorp of Indiana, LLC and Creditcorp of Wisconsin, LLC (the "Original
Borrowers") in the original principal amount of up to $3,500,000 (the "Loan")
pursuant to a Loan Agreement dated as of November 8, 1996 (the "Original Loan
Agreement"), and Borrower has assumed the obligations of the Original Borrowers
in connection with the Loan; and
WHEREAS, Lender and Borrower, in connection with Borrower's assumption of
the obligations of the Original Borrowers under the Loan Agreement, desire to
amend and restate the Loan Agreement;
WHEREAS, in order to induce Lender to agree to the assumption of the Loan
by Borrower, Borrower has made certain representations to Lender; and
WHEREAS, Lender, in reliance upon the representations and inducements of
Borrower, has agreed to the assumption of the Loan by Borrower upon the terms
and conditions hereinafter set forth.
AGREEMENT:
---------
NOW, THEREFORE, in consideration of the agreement of Lender to make the
Loan, the mutual covenants and agreements hereinafter set forth, and other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Borrower and Lender hereby agree as follows:
ARTICLE 1
THE LOAN
--------
1.1 Evidence of Loan Indebtedness and Repayment. Subject to the terms and
-------------------------------------------
conditions hereof, Lender shall make the Loan to Borrower by wire transfer in
immediately available funds. The Loan shall be advance to Borrower in up to
eight (8) advances (individually, an "Advance" and collectively, the
"Advances"). The first Advance was in the principal amount of $500,000 and was
made on November 8, 1996. The second advance was in the principal amount of
$500,000 and was made on December 26, 1996. Subsequent Advances shall be in
amount of not less than $500,000 each (except for the last advance which may be
for the remainder of the Loan amount) and shall be made as requested by
Borrower, provided, however, that Lender's obligation to fund subsequent
Advances shall be subject to the conditions set forth in Section 4.2. The Loan
shall be evidenced by one (1) or more Secured Promissory Notes in the original
principal amount of the applicable advance, substantially in the form of Exhibit
A attached hereto and incorporated herein by this reference (individually, a
"Note" and collectively, the "Notes"), dated as of the date of the applicable
Advance, executed by Borrower, in favor of Lender. Each Advance shall be payable
in accordance with the terms of the applicable Note. The Notes, this Agreement
and any other instruments and documents executed by Borrower, any guarantor of
the Loan, or any shareholder, member, partner, subsidiary, or affiliate of
Borrower, now or hereafter evidencing, securing or in any way related to the
indebtedness evidenced by the Notes are herein individually referred to as a
"Loan Document" and collectively referred to as the "Loan Documents."
1.2 Processing Fee. A processing fee of $70,000 has been paid to Lender
--------------
in connection with the Loan.
1.3 Purpose(s) of Loan and Use of Proceeds. The purposes of the Loan shall
--------------------------------------
be (i) to provide working capital to Borrower and any or all of the other CIC
Entities (as hereinafter defined), (ii) to finance new store expansion
(including expansion into other states through other affiliates of Borrower),
(iii) to pay all costs and expenses incurred by the parties hereto in connection
with the making and documenting of the Loan, including attorneys' fees and
expenses, and (iv) for general corporate and business purposes.
1.4 Prepayment. Borrower any prepay the indebtedness evidenced by the
----------
Notes in whole or in part at any time and from time to time without premium or
penalty.
2
ARTICLE 2
REPRESENTATIONS AND WARRANTIES
------------------------------
2.1 Borrower's Representations. Borrower hereby represents and warrants to
--------------------------
Lender as follows:
(a) Corporate Status. Borrower is a corporation duly organized,
----------------
validly existing and in good standing under the laws of the State of
Delaware; and has the corporate power to own and operate its properties, to
carry on its business as now conducted and to enter into and to perform its
obligations under this Agreement and the other Loan Documents to which it
is a party. Borrower is duly qualified to do business and in good standing
in each state in which a failure to be so qualified and in good standing
would have a material adverse effect on Borrower's financial position or
its ability to conduct its business in the manner now conducted.
(b) Other Business Organizations. Schedule 2.1(b) hereto is a
---------------------------- ---------------
complete list as of the date hereof of each corporation, limited liability
company, partnership, joint venture or other business organization (whether
now or hereafter existing, the "Subsidiary" or, with respect to all
organizations, the "Subsidiaries"; Borrower, the Subsidiaries, Creditcorp
of Illinois, LLC and Creditcorp of Ohio, LLC are referred to hereinafter,
individually as a "CIC Entity" and collectively as the "CIC Entities") in
which Borrower or any Subsidiary owns, directly or indirectly, and capital
stock or other equity interest, or with respect to which Borrower or any
Subsidiary, alone or in combination with others, is in a control position,
which list shows the jurisdiction of incorporation or other organization
and the percentage of stock or other equity interest of each Subsidiary.
Each CIC Entity which is a corporation is duly organized, validly existing
and in good standing under the laws of the jurisdiction of its
incorporation and is duly qualified to transact business as a foreign
corporation and is in good standing in the jurisdictions listed in Schedule
--------
2.1(b), and there is no other jurisdiction in which a failure to be so
------
qualified and in good standing would have a material adverse effect on such
CIC Entity's financial position or its ability to conduct its business in
the manner now being conducted. Each CIC Entity which is not a corporation
is a limited liability company duly organized and validly existing under
the laws of the jurisdiction of its organization and is duly qualified to
transact business as a foreign entity and is in good standing in the
jurisdictions listed in Schedule 2.1(b), and then is no other jurisdiction
---------------
in which a failure to be so qualified and in good standing would have a
material adverse effect on such CIC Entity's financial position or its
ability to conduct is business in the manner now being conducted. The
outstanding capital stock of each CIC Entity which is a corporation is
validly issued, fully paid and nonassessable. The CIC Entities have good
and valid title to the equity interests in the Subsidiaries shown as owned
by each of them on Schedule 2.1(b), free and clear of all liens, claims,
---------------
charges, restrictions, security interests, equities, proxies, pledges or
encumbrances of any kind, except for any and all pledges in favor of
Lender.
3
(c) Authorization. Each of the CIC Entities has full legal right,
-------------
power and authority to conduct its business and affairs. Each of the CIC
Entities has full legal right, power and authority to enter into and
perform its obligations under the Loan Documents to which it is a party,
without the consent or approval of any other person, firm, governmental
agency or other legal entity. The execution and delivery of this Agreement,
the borrowing hereunder, the execution and delivery of each Loan Document
to which each CIC Entity is a party, and the performance by each CIC Entity
of its obligations thereunder are within the powers of such CIC Entity
(corporate or otherwise) and have been duly authorized by all necessary
action (corporate or otherwise) properly taken, have received all necessary
governmental approvals, if any were required, and do not and will not
contravene or conflict with any provision of law, any applicable judgment,
ordinance, regulation or order of any court or governmental agency, the
charter of bylaws or other organizational documents of such CIC Entity, or
any agreement binding upon such CIC Entity. The officer(s) executing this
Agreement, the Note and all of the other Loan Documents to which Borrower
is a party are duly authorized to act on behalf of such Borrower, The
officers executing the Loan Documents on behalf of each of the other CIC
Entities are duly authorized to act on behalf of such other CIC Entities.
(d) Validity and Binding Effect. This Agreement and the other Loan
---------------------------
Documents to which any CIC Entity is a party are the legal, valid and
binding obligations of such CIC Entity, enforceable in accordance with
their respective terms, subject to limitations imposed by bankruptcy,
insolvency, moratorium or other similar laws affecting the rights of
creditors generally or the application of general equitable principles.
(e) Capitalization of Borrower and CIC Entities Which Are Not
---------------------------------------------------------
Subsidiaries.
-----------
(1) As of the date hereof, the authorized capital stock of
Borrower consists solely of ten thousand (10,000) shares of common
stock, $0.01 par value per share ("Common Stock"), of which one
thousand ten (1,010) shares are issued and outstanding (the "Shares")
and sixty-five (65) shares of which shall be reserved for issuance
upon exercise of the Stock Purchase Warrant dated as of the date
hereof and issued to Lender by Borrower (the "Borrower Warrant");
provided, however, that the number shares reserved for issuance upon
exercise of the Borrower Warrant shall be increased from time to time
in accordance with the terms of the Borrower Warrant. As of the date
hereof, Borrower shall not have outstanding any stock or securities
convertible or exchangeable for any shares of its Common Stock or
containing any profit participation features, nor (other than employee
stock options which grant options entitling the holders thereof to
acquire shares which do not exceed 15% of the shares outstanding
provided that the exercise price per share of capital stock under each
option or other right granted under the option plan shall in no event
be less than 100% of the fair market value of the capital
4
stock on the date such option or other right is granted) shall it have
outstanding any rights or options to subscribe for or to purchase its Common
Stock or any stock or securities convertible into or exchangeable for its Common
Stock or any stock appreciation rights or phantom stock plans, except for the
Borrower Warrant. As of the date hereof, Borrower shall not be subject to any
obligation (contingent or otherwise) to repurchase, redeem, retire or otherwise
acquire any shares of its capital stock or any warrants, options or other rights
to aquire its capital stock (other than forfeitures which do not require
Borrower to pay consideration), except as set forth in the Warrant. As of the
date hereof, all of the outstanding shares of Borrower's capital stock shall be
validly issued, fully paid and nonassessable. There are no statutory or
contractual preemptive rights, rights of first refusal, antidilution rights or
any similar rights, held by stockholders or option holders of Borrower, with
respect to the issuance of the Warrant or the issuance of the Common Stock upon
exercise of the Warrant. Borrower has not violated any applicable federal or
state securities laws in connection with the offer, sale or issuance of any of
its capital stock, and (assuming Lender is an "accredited investor" as defined
in SEC Rule 501(a) and complies with the covenants therein contained) the offer,
sale and issuance of the Warrant hereunder do not require registration under the
Securities Act or any applicable state securities laws. To the best of
Borrower's knowledge, there are no agreements among Borrower's stockholders with
respect to any aspect of Borrower's affairs.
(2) Creditcorp of Illinois, LLC and Creditcorp of Ohio, LLC are
hereinafter referred to sometimes as the "Non-Subsidiary Entities." As of the
date hereof, the membership interests of the Non-Subsidiary Entities are owned
as follows: W. Allan Jones - 81% and Janie P. Jones - 19%. As of the date
hereof, neither of the Non-Subsidiary Entities is subject to any obligation
(contingent or otherwise) to repurchase, redeem, retire or otherwise acquire any
of its membership interests or any warrants, options or other rights to acquire
its membership interests, except for warrants issued or to be issued by the Non-
Subsidiary Entities to Lender in connection with the Loan (the "Non-Subsidiary
Warrants") and employee options which grant options entitling the holders
thereof to acquire interests which do not exceed 15% of the membership interests
outstanding (provided that the exercise price for any interests under each
option or other right granted under the option plan shall in no event be less
than 100% of the fair market value of the interests on the date such option or
other right is granted). There are no statutory or contractual rights of first
refusal, or any similar rights, held by members or option holders of any of the
Non-Subsidiary Entities, with respect to the Non-Subsidiary Entities or the
issuance of membership interests upon exercise of any of the Non-Subsidiary
Warrants. Neither of the Non-Subsidiary Entities has violated any applicable
federal or state securities laws in connection with the offer, sale or issuance
of its membership interest, and (assuming Lender
5
is an "accredited investor" as defined in SEC Rule 501(a) and complies with
the covenants therein contained) the offer, sale and issuance of the Non-
Subsidiary Warrants hereunder do not require registration under the
Securities Act or any applicable state securities law. Except for their
Operating Agreements, there are no agreements among the members of the Non-
Subsidiary Entities with respect to any aspect of the Non-Subsidiary
Entities' affairs.
(f) Trademarks, Patents, Etc. Schedule 2.1(f) is an accurate and complete
-----------------------------------------
list of all patents, trademarks, tradenames, trademark registrations, service
names, service marks, copyrights, licenses, formulas and applications therefor
owned by any of the CIC Entities or used or required by any of the CIC Entities
in the operation of its business, title to each of which is, except as set
forth in Schedule 2.1(f) hereto, held by Borrower, free and clear of all adverse
---------------
claims, liens, security agreements, restrictions or other encumbrances. There is
no infringement action, lawsuit, claim or complaint which asserts that the
operations of any of the CIC Entities violate or infringe the rights or the
trade names, trademarks, trademark registration, service name, service mark or
copyright of others with respect to any apparatus or method of any of the CIC
Entities or any adversely held trademark, trade name, trademark registration,
service name, service mark or copyright, nor are any of the CIC Entities in any
way making use of any confidential information or trade secrets of any person
except with the consent of such person.
(g) No Conflicts. Consummation of the transactions hereby contemplated and
------------
the performance of the obligations of any of the CIC Entities under and by
virtue of the respective Loan Documents to which they are a party will not
result in any breach of, or constitute a default under, any material mortgage,
security deed or agreement, deed of trust, lease, bank loan or credit agreement,
corporate charter or bylaws, articles or certificate of organization or
operating agreement, agreement or certificate of limited partnership,
partnership agreement, license, franchise or any other material instrument or
agreement to which any of the CIC Entities are a party or by which any of the
CIC Entities, or their respective properties may be bound or affected or to
which any of the CIC Entities have not obtained an effective waiver.
(h) Litigation. Except as set forth on Schedule 2.1(h), as of the date of
---------- ---------------
this Agreement there are no actions, suits or proceedings pending, or, to the
knowledge of Borrower, threatened, against or affecting any of the CIC Entities
or involving the validity or enforceability of any of the Loan Documents at law
or in equity, or before any governmental or administrative agency; and to
Borrower's knowledge, none of the CIC Entities are in default with respect to
any order, writ, injunction, decree or demand of any court or any governmental
authority where such default could have a material adverse effect on it.
6
(i) Financial Statements. The financial statements of the CIC Entities,
--------------------
dated December 31, 1996, attached hereto as Schedule 2.1(i)(A), are true and
-------------------
correct in all material respects have been prepared on the basis of accounting
principles consistently applied, and fairly present the financial condition of
the CIC Entities as of the date(s) thereof. No material adverse change has
occurred in the financial condition of Borrower since the date(s) thereof, and
as of the date of this Agreement, no additional borrowings beyond those
borrowings reflected on such financial statements have been made by any of the
CIC Entities since the date(s) thereof other than as set forth on Schedule
--------
2.1(i)(B).
- ---------
(j) Other Agreements; No Defaults. None of the CIC Entities is a party to
-----------------------------
indentures, loan or credit agreements, leases or other agreements or
instruments, or subject to any charter or corporate restrictions that could have
a material adverse effect on its business, properties, assets, operations or
conditions, financial or otherwise, or its ability to carry out its obligations
under the Loan Documents to which it is a party. None of the CIC Entities is in
default in any respect in the performance, observance or fulfillment of any of
the obligations, covenants or conditions contained in any agreement or
instrument material to its business, including but not limited to this Agreement
and the other Loan Documents to which it is a party, and no other default or
event has occurred and is continuing that with notice or the passage of time or
both would constitute a default or event of default under any of same.
(k) Compliance With Law. Each of the CIC Entities has obtained all
-------------------
material licenses, permits and approvals and authorizations necessary or
required in order to conduct its business and affairs as heretofore conducted
and as hereafter intended to be conducted. To Borrower's knowledge, each of the
CIC Entities is in compliance with all laws, regulations, decrees and orders
applicable to it (including but not limited to laws, regulations, decrees and
orders relating to environmental, occupational and health standards and
controls, antitrust, monopoly, restraint of trade or unfair competition), except
to the extent that noncompliance, in the aggregate, cannot reasonably be
expected to have a material adverse effect on its business, operations, property
or financial condition and will not materially adversely affect its ability to
perform its obligations under the Loan Documents to which it is a party.
(l) Debt. Schedule 2.1(l) is a complete and correct list of all credit
---- ---------------
agreements, indentures, purchase agreements, promissory notes and other
evidences of indebteness, guaranties, capital leases and other instruments,
agreements and arrangements presently in effect providing for or relating to
extensions of credit (including agreements and arrangements for the issuance of
letters of credit or for acceptance financing) in respect of which any of the
CIC Entities, or any of the properties thereof, are in any manner directly or
contingently obligated as of the date hereof; and the maximum principal or face
amounts of the credit in question that are outstanding and that can be
outstanding are correctly stated, and all liens of any
7
nature given or agreed to be given as security therefor are correctly
described or indicated in such Schedule.
(m) Taxes. Each of the CIC Entities has filed or caused to be filed
-----
all tax returns that to Borrower's knowledge are required to be filed
(except for returns that have been appropriately extended), and has paid,
or will pay when due, all taxes shown to be due and payable on said returns
and all other taxes, impositions, assessments, fees or other charges
imposed on them by any governmental authority, agency or instrumentality,
prior to any delinquency with respect thereto (other than taxes,
impositions, assessments, fees and charges currently being contested in
good faith by appropriate proceedings, for which appropriate amounts have
been reserved). No tax liens have been filed against any of the CIC
Entities, or any of the property thereof.
(n) [Intentionally omitted.]
(o) Certain Transactions. Except as set forth on Schedule 2.1(o), as
-------------------- ---------------
of the date hereof, none of the CIC Entities is indebted, directly or
indirectly, to any of its shareholders, officers, directors, members,
governors or managers, or to their respective spouses or children, in any
amount whatsoever; except as set forth on Schedule 2.1(o), as of the date
---------------
hereof, none of said shareholders, officers, directors, members, governors
or managers or any members of their immediate families, is indebted to any
of the CIC Entities or has any direct or indirect ownership interest in any
firm or corporation with which any of the CIC Entities have a business
relationship, or any firm or corporation which competes with any of the CIC
Entities, except that shareholders, officers, directors, members, governors
or managers of any of the CIC Entities may own no more than 4.9% of
outstanding stock of publicly traded companies which may compete with any
of the CIC Entities. Except as set forth on Schedule 2.1(o), as of the date
---------------
hereof, no officer, director, member, governor or manager of any of the CIC
Entities or any member of their immediate families, is, directly or
indirectly, interested in any material contract with any of the CIC
Entities. Except as contemplated hereby, none of the CIC Entities is a
guarantor or indemnitor of any indebtedness of any other person, firm or
corporation.
(p) Statements Not False or Misleading. No representation or warranty
----------------------------------
given as of the date hereof by Borrower contained in this Agreement or any
schedule attached hereto or any statement in any document, certificate or
other instrument furnished or to be furnished by any of the CIC Entities to
Lender pursuant hereto, taken as a whole, contains or will (as of the time
so furnished) contain any untrue statement of a material fact, or omits or
will (as of the time so furnished) omit to state any material fact required
to be stated therein and necessary in order to make the statements
contained therein not misleading.
8
(q) Margin Regulations. None of the CIC Entities are engaged in the
------------------
business of extending credit for the purpose of purchasing or carrying
margin stock. No proceeds received pursuant to this Agreement will be used
to purchase or carry any equity security of a class which is registered
pursuant to Section 12 of the Securities Exchange Act of 1934, as amended.
(r) Significant Contracts. Schedule 2.1(r) is a complete and correct
--------------------- ---------------
list of all contracts, agreements and other documents pursuant to which any
of the CIC Entities receives, as of the date hereof, revenues in excess of
$25,000 per fiscal year. Each such contract, agreement and other document
is in full force and effect as of the date hereof and Borrower knows of no
reason why such contracts, agreements and other documents would not remain
in full force and effect pursuant to the terms thereof.
(s) Environmental Matters. Each of the CIC Entities has duly complied
---------------------
with, and its business, operations, assets, equipment, property, leaseholds
or other facilities are in compliance with, the provisions of all federal,
state and local environmental, health, and safety laws, codes and
ordinances, and all rules and regulations promulgated thereunder, except to
the extent that failure to do so would not have a material adverse effect
on its business. Each of the CIC Entities has been issued and will
maintain all required federal, state and local permits, licenses,
certificates and approvals relating to (1) air emissions; (2) discharges to
surface water or groundwater; (3) noise emissions; (4) solid or liquid
waste disposal; (5) the use, generation, storage, transportation or
disposal of toxic or hazardous substances or wastes (which shall include
any and all such materials listed in any federal, state or local law, code
or ordinance and all rules and regulations promulgated thereunder as
hazardous or potentially hazardous); or (6) other environmental, health or
safety matters, except to the extent that failure to do so would not have a
material adverse effect on its business. None of the CIC Entities has
received notice of, or knows of, or suspects facts which might constitute
any violations of any federal, state or local environmental, health or
safety laws, codes or ordinances, and any rules or regulations promulgated
thereunder with respect to its businesses, operations, assets, equipment,
property, leaseholds, or other facilities. Except in accordance with a
valid governmental permit, license, certificate or approval, with respect
to the operation of the CIC Entities, there has been no emission, spill,
release or discharge into or upon (1) the air; (2) soils, or any
improvements located thereon; (3) surface water or groundwater; or (4) the
sewer, septic system or waste treatment, storage or disposal system
servicing the premises, of any toxic or hazardous substances or wastes at
or from the premises; and accordingly the premises of each of the CIC
Entities are free of all such toxic or hazardous substances or wastes.
There has been no complaint, order, directive, claim, citation or notice by
any governmental authority or any person or entity with respect to (1) air
emissions; (2) spills, releases or discharges to soils or improvements
located thereon, surface water, groundwater or the sewer, septic system or
waste treatment, storage or disposal systems servicing the premises; (3)
noise emissions; (4) solid or liquid waste disposal; (5) the use,
9
generation, storage, transportation or disposal of toxic or hazardous substances
or waste; or (6) other environmental, health or safety matters affecting any of
the CIC Entities or their respective businesses, operations, assets, equipment,
property, leaseholds or other facilities. None of the CIC Entities has any
indebtedness, obligation or liability (absolute or contingent, matured or not
matured), with respect to the storage, treatment, cleanup or disposal of any
solid wastes, hazardous wastes or other toxic or hazardous substances (including
without limitation any such indebtedness, obligation, or liability with respect
to any current regulation, law or statute regarding such storage, treatment,
cleanup or disposal).
(t) Fees; Commissions. Except for the processing and commitment fees paid
-----------------
pursuant to Section 1.2 and paid to Decosimo Management Consulting, LLP, none of
the CIC Entities has agreed to pay any finder's fee, commission, origination fee
or other fee or charge to any person or entity with respect to the Loan and
investment transactions contemplated hereunder.
(u) ERISA. Each of the CIC Entities is in compliance in all material
-----
respects with all applicable provisions of ERISA (as defined in Section 3.11
hereof). With respect to each of the CIC Entities, neither a reportable event
nor a prohibited transaction (as defined in ERISA) has occurred and is
continuing with respect to any Plan (as defined in Section 3.11 hereof); no
notice of intent to terminate a Plan has been filed nor has any Plan been
terminated; no circumstances exist which constitute grounds entitling the
Pension Benefit Guaranty Corporation (together with any entity succeeding to any
or all of its functions, the "PBGC") to institute proceedings to terminate, or
appoint a trustee to administer, a Plan, nor has the PBGC instituted any such
proceedings; neither the CIC Entities, nor any commonly controlled entity (as
defined in ERISA) has completely or partially withdrawn from a multiemployer
plan (as defined in ERISA); Each of the CIC Entities and each commonly
controlled entity has met its minimum funding requirements under ERISA with
respect to all of its Plans and the present fair market value of all Plan
property exceeds the present value of all vested benefits under each Plan, as
determined on the most recent valuation date of the Plan and in accordance with
the provisions of ERISA and the regulations thereunder for calculating the
potential liability of each of the CIC Entities, or any commonly controlled
entity to the PBGC or the Plan under Title IV of ERISA; and neither the CIC
Entities, nor any commonly controlled entity has incurred any liability to the
PBGC under ERISA.
(v) Title to Properties. Each of the CIC Entities has good, indefeasible
-------------------
and insurable title to, or valid leasehold interests in, all its real properties
and good title to its other assets, free and clear of all liens other than
Permitted Liens (as defined in Section 3.15 hereof).
10
(w) Material Adverse Effect. Since December 31, 1996, no event has
-----------------------
occurred which has resulted or which Borrower reasonably believes could be
expected to result in a material adverse effect on any of the CIC Entity's
ability to perform its obligations under the Loan Documents to which it is
a party. No default or event of default under any other agreement will
occur as a result of the transactions contemplated by this Agreement or by
the Warrant.
(x) Financial Solvency. Neither Borrower nor any of the other CIC
------------------
Entities are entering into the arrangements contemplated by this Agreement
and the other Loan Documents to which each is a party with actual intent to
hinder, delay or defraud either present or future creditors. On and as of
the date hereof on a pro forma basis after giving effect to the
transactions contemplated by the Loan Documents and to all debts incurred
or to be created in connection herewith:
(1) the present fair salable value of the assets of each of the
CIC Entities (on a going concern basis) will exceed its probable
liability on its debts (including its contingent obligations);
(2) None of the CIC Entities has incurred, nor does it intend to
or believe that it will incur, debts (including contingent
obligations) beyond its ability to pay such debts as such debts mature
(taking into account the timing and amounts of cash to be received
from any source, and of amounts to be payable on or in respect of
debts); and the amount of cash available to each of the CIC Entities
after taking into account all other anticipated uses of funds is
anticipated to be sufficient to pay all such amounts on or in respect
of debts, when such amounts are required to be paid; and
(3) Each of the CIC Entities will have sufficient capital with
which to conduct its present and proposed business and the property of
each of the CIC Entities does not constitute unreasonably small
capital with which to conduct its current business at present levels
of operations.
For purposes of this Section 2.1(x) "debt" means any liability on a
(i) right to payment whether or not such a right is reduced to judgment,
liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed,
undisputed, legal, equitable, secured, or unsecured; or (ii) right to an
equitable remedy for breach of performance if such breach gives rise to a
payment, whether or not such a right to an equitable remedy is reduced to
judgment, fixed, contingent, unmatured, disputed, undisputed, secured, or
unsecured.
(y) Offering of Notes and Warrant. None of the CIC Entities, nor
-----------------------------
anyone acting on their behalf, has offered the Notes, the Warrants (as
hereinafter defined) or any similar securities for sale, to or solicited
any offer to buy any of the same from, or otherwise approached or
negotiated in respect thereof, with, any person other than Lender and not
more than 35 other institutional investors. None of the
11
CIC Entities, nor anyone acting on their behalf, has taken, or will take,
any action which would subject the issuance or sale of the Notes or the
Warrants to Section 5 of the Securities Act of 1933, as amended, or the
registration or qualification provisions of the blue sky laws of any state.
(z) Registration Rights. Except as described in the Warrants, none of
-------------------
the CIC Entities is under any obligation to register under the Securities
Act of 1933, as amended, or the Trust Indenture Act of 1939, as amended,
any of its presently outstanding securities or any of its securities that
may subsequently be issued.
(aa) Employees. None of the CIC Entities has any current labour
---------
problems or disputes which have resulted in, or which Borrower reasonably
believes could be expected to have, a material adverse effect.
(ab) Issuance Taxes. All taxes imposed on any of the CIC Entities in
--------------
connection with the issuance, sale and delivery of the Notes, the Warrants,
and the capital stock or other equity interests issuable upon exercise of
the Warrants have been or will be fully paid, and all laws imposing such
taxes have been or will be fully satisfied.
(ac) List of Deposit Institutions. Schedule 2.1(ac) sets forth a true
---------------------------- ---------------
and complete list of all deposit institutions at which any of the CIC
Entities has or maintains an account or deposits of any kind.
(ad) Locations and Names. Except as set forth on Schedule 2.1(ad),
------------------- ------------
none of the CIC Entities has, during the five years preceding the date of
this Agreement, been known as or used any other corporate, trade or
fictitious name, nor acquired all or substantially all of the assets,
capital stock or operating units of any person. None of the CIC Entities
has, during the five years preceding the date of this Agreement, had a
business location at any address other than its address(es) set forth on
Schedule 2.1(ad).
---------------
ARTICLE 3
COVENANTS AND AGREEMENTS
------------------------
Borrower covenants and agrees that during the term of this Agreement:
3.1 Payment of Obligations. Borrower shall pay the indebtedness evidenced
----------------------
by the Notes according to the respective terms thereof, and shall timely pay or
perform, as the case may be, all of the other obligations of Borrower to Lender,
direct or contingent, however evidenced or denominated, and however and whenever
incurred, including but not limited to indebtedness incurred pursuant to any
present or future commitment of Lender to Borrower, together with interest
thereon, and any extensions, modifications, consolidations and/or renewals
thereof and any notes given in payment thereof.
12
3.2 Financial Statements and Reports. Borrower shall furnish to Lender (i)
--------------------------------
as soon as practicable and in any event within ninety (90) days after the end of
each fiscal year of the CIC Entities, a consolidated or combined balance sheet
of the CIC Entities as of the close of such fiscal year, a consolidated or
combined statement of earnings and retained earnings of the CIC Entities as of
the close of such fiscal year and a consolidated or combined statement of cash
flows for the CIC Entities for such fiscal year, prepared in accordance with
generally accepted accounting principles consistently applied ("GAAP"), audited
by an independent certified public accountant reasonably acceptable to Lender
and certified by an officer of Borrower and accompained by a certificate of the
President of Borrower stating that to the best of the knowledge of such officer,
each of the CIC Entities has kept, observed, performed and fulfilled each
covenant, term and condition of this Agreement and the other Loan Documents to
which it is a party during the preceding fiscal year and that no Event of
Default, as herein defined, has occurred and is continuing (or if an Event of
Default has occurred and is continuing, specifying the nature of same, the
period of existence of same and the action taken or proposed to be taken in
connection therewith), (ii) within fifteen (15) days after the end of each
calendar month, a consolidated or combined balance sheet of the CIC Entities as
of the close of such month and a consolidated or combined statement of earnings
and retained earnings of the CIC Entities as of the close of such month, all in
reasonable detail (including financial information for the preceding six (6)
months), and prepared substantially in accordance with GAAP (except for the
absence of footnotes and subject to year-end adjustments), and (iii) with
reasonable promptness, such other financial data as Lender may reasonably
request. Without Lender's prior written consent, none of the CIC Entities shall
modify or change any accounting policies or procedures in effect on the date
hereof.
3.3 Maintenance of Books and Records; Inspection. Each of the CIC Entities
--------------------------------------------
shall maintain its books, accounts and records in accordance with GAAP, and
after reasonable notice from Lender, shall permit Lender, its officers,
employees and any professionals designated by Lender in writing, at such CIC
Entity's expense, to visit, inspect and/or audit any of its properties, books
and financial records, and to discuss its accounts, affairs and finances with
such CIC Entity or the principal officers of such CIC Entity during reasonable
business hours, all at such times as Lender may reasonably request; provided
that no such visit, inspection and/or audit shall materially interfere with the
conduct of such CIC Entity's business and the cost of such visit, inspection
and/or audit shall not exceed an aggregate of $5,000 per year.
3.4 Insurance. Without limiting any of the requirements of any of the
---------
other Loan Documents, each of the CIC Entities shall maintain in amounts
customary for entities engaged in comparable business activity (i) to the extent
required by applicable law, worker's compensation insurance (or maintain a
legally sufficient amount of self insurance against worker's compensation
liabilities, with adequate reserves, under a plan approved by Lender, such
approval not to be unreasonably withheld or delayed) and (ii) fire and "all
risk" casualty insurance on its properties against such hazards and in at least
such amounts as are customary in its business. Each of the CIC Entities will
make reasonable efforts to obtain and maintain public liability insurance in an
amount, and at a cost, deemed reasonable to
13
its Board of Directors or Board of Governors, as the case may be. At the request
of Lender, Borrower will deliver forthwith a certificate specifying the details
of such insurance in effect.
3.5 Taxes and Assessments. Each of the CIC Entities shall (i) file all tax
---------------------
returns and appropriate schedules thereto that are required to be filed under
applicable law, prior to the date of delinquency, (ii) pay and discharge all
taxes, assessments and governmental charges or levies imposed upon it with
respect to its income and profits or upon any properties belonging to it, prior
to the date on which penalties attach thereto, and (iii) pay all taxes,
assessments and governmental charges or levies that, if unpaid, might become a
lien or charge upon any of its properties; provided, however, that any of the
CIC Entities, in good faith, may contest any such tax, assessment, governmental
charge or levy described in the foregoing clauses (ii) and (iii) so long as
appropriate reserves are maintained with respect thereto.
3.6 Legal Existence. Each of the CIC Entities shall maintain its legal
---------------
existence and good standing in the state of its formation, and its
qualification and good standing as a foreign entity in each jurisdiction in
which a failure to be so qualified would have a material adverse effect on its
financial position or its ability to conduct its business in the manner now
being conducted.
3.7 Compliance with Law and Other Agreements. Except where the failure to
----------------------------------------
do so would not materially adversely affect such CIC Entity's operations or its
ability to fulfill its obligations under the Loan Documents to which it is a
party, each of the CIC Entities shall maintain its business, operations and
property owned or used in connection therewith in compliance with (i) all
applicable federal, state and local laws, regulations and ordinances governing
such business operations and the use and ownership of such property, and (ii)
all agreements, licenses, franchises, indentures and mortgages to which it is a
party or by which it or any of its properties is bound. Without limiting the
foregoing, each of the CIC Entities shall pay all of its indebtedness promptly
in accordance with the terms thereof.
3.8 Notice of Default. Borrower shall give written notice to Lender of the
-----------------
occurrence of any default or Event of Default under this Agreement or any other
Loan Document promptly upon the occurrence thereof.
3.9 Notice of Litigation. Borrower shall give notice, in writing, to
--------------------
Lender of (i) any actions, suits or proceedings instituted by any persons
whomsoever against any of the CIC Entities, or affecting any of the assets of
any the CIC Entities, wherein the amount at issue is in excess of Twenty-Five
Thousand and No/100ths Dollars ($25,000.00), and (ii) any dispute, not resolved
within sixty (60) days of the commencement thereof, between any of the CIC
Entities on the one hand and any governmental regulatory body on the other hand,
which dispute might materially interfere with the normal operations of any of
the CIC Entities.
14
3.10 Conduct of Business, Name and Location of Business. Each of the CIC
--------------------------------------------------
Entities will continue to engage in a business of the same general type and
manner as conducted by it on the date of this Agreement. Without Lender's prior
written consent (which will not be unreasonably withheld), none of the CIC
Entities shall modify or change any terms or conditions of any material
contracts and/or agreements to which it is a party on the date hereof. None of
the CIC Entities will change its name or any location of its business without
providing Lender with 10 days' written notice of such change. In the event any
of the CIC Entities makes a change of its name or location of business, Borrower
shall cause it to promptly execute any and all financing statements, and
amendments or continuations thereof and any other documents that Lender may
reasonably request to evidence, continue, and/or perfect any security interest
in or pledge of collateral securing the Loan.
3.11 ERISA Plan. If any of the CIC Entities has in effect, or hereafter
----------
institutes, a pension plan that is subject to the requirements of Title IV of
the Employee Retirement Income Security Act of 1974, Pub. L. No. 93-406,
September 2, 1974, 88 Stat. 829, 29 U.S.C.A. (S) 1001 et seq. (1975), as amended
------
from time to time ("ERISA"), then the following warranty and covenants shall be
applicable during such period as any such plan (the "Plan") shall be in effect:
(i) Borrower hereby warrants that no fact that might constitute grounds for the
involuntary termination of the Plan, or for the appointment by the appropriate
United States District Court of a trustee to administer the Plan, exists at the
time of execution of this Agreement, (ii) Borrower hereby covenants that
throughout the existence of the Plan, the contributions of such CIC Entity under
the Plan will meet the minimum funding standards required by ERISA and such CIC
Entity will not institute a distress termination of the Plan, and (iii) Borrower
covenants that it will send to Lender a copy of any notice of a reportable event
(as defined in ERISA) required by ERISA to be filed with the Labor Department or
the Pension Benefit Guaranty Corporation, at the time that such notice is so
filed.
3.12 Dividends, Distributions, Stock Rights, etc. Except as set forth in
-------------------------------------------
this Section 3.12 below, none of the CIC Entities which are corporations shall
declare or pay any dividend of any kind (other than stock dividends payable to
all holders of any class of capital stock), in cash or in property, on any class
of its capital stock, or purchase, redeem, retire or otherwise acquire for value
any shares of such stock, nor make any distribution of any kind in cash or
property in respect thereof, nor make any return of capital of shareholders, nor
make any payments in cash or property in respect of any stock options, stock
bonus or similar plan (except as required or permitted hereunder), nor make any
payments in cash or property in respect of any bonus or similar plan, nor pay
any performance bonuses (in excess of $400,000 in the aggregate in any calendar
year) and similar payments to management or key employees nor grant any
preemptive rights with respect to its capital stock, without the prior written
consent of Lender. Except as set forth in this Section 3.12 below, none of the
CIC Entities which are limited liability companies shall make any distributions
to their members (except to the extent necessary for members to pay taxes
attributable to income from their operations) or purchase, redeem, retire or
otherwise acquire for value any membership interest, nor make any distribution
of any kind in cash or
15
property in respect thereof, nor make any return of capital of members, nor make
any payments in cash or property in respect of any bonus or similar plan,
performance bonuses (in excess of $400,000 in the aggregate in any calendar
year) and similar payments to management or key employees, nor grant any
preemptive rights with respect to their membership interests, without the prior
written consent of Lender. Notwithstanding anything in this Section 3.12 or
elsewhere to the contrary, nothing herein shall prevent any CIC Entity from
declaring or paying any dividend of any kind or making any other distribution of
any kind to Borrower.
3.13 Guaranties; Loans; Payment of Debt. Without Lender's prior express
----------------------------------
written consent, none of the CIC Entities shall guarantee nor be liable in any
manner, whether directly or indirectly, or become contingently liable after the
date of this Agreement in connection with the obligations or indebtedness in
excess of $100,000 of any person or entity whatsoever, except for the
endorsement of negotiable instruments payable to any of the CIC Entities for
deposit or collection in the ordinary course of business. Without Lender's
prior express written consent, except as set forth in Section 3.14 hereof, none
of the CIC Entities shall (i) make any loan, advance or extension of credit to
any person other than in the normal course of its business or (ii) make any
payment on any subordinated debt.
3.14 Debt. Without the express prior written consent of Lender, none of
----
the CIC Entities may create, incur, assume or suffer to exist indebtedness of
any description whatsoever, excluding (i) the indebtedness evidenced by the
Notes, (ii) the endorsement of negotiable instruments payable to any of the CIC
Entities for deposit or collection in the ordinary course of business, (iii)
indebtedness incurred in the ordinary course of business (each of which,
individually, does not exceed $100,000), (iv) the indebtedness listed on
Schedule 2.1(1) hereto), and (v) loans by any of the CIC Entities to any of the
- ---------------
other CIC Entities. Notwithstanding the foregoing, Lender agrees that Borrower
may incur additional indebtedness up to $2,500,000 in the aggregate (the
"Additional Indebtedness") from a bank, venture capital company or other
institutional lender and Lender agrees to subordinate the Loan and any security
interest in favor of Lender with respect to the Loan to the Additional
Indebtedness and enter into intercreditor agreements with respect to the
Additional Indebtedness, all on terms reasonably acceptable to Lender.
3.15 No Liens. None of the CIC Entities shall create, incur, assume or
--------
suffer to exist any lien, security interest, security title, mortgage, deed of
trust or other encumbrance upon or with respect to any of its properties, now
owned or hereafter acquired, except the following permitted liens (the
"Permitted Liens"):
(a) liens in favor of Lender;
(b) liens for taxes or assessments or other governmental charges
or levies if not yet due and payable;
(c) liens in connection with the leasing of equipment in favor
of the lessor of such equipment;
16
(d) liens described on Schedule 2.1(I) hereto;
---------------
(e) liens securing the Additional Indebtedness;
(f) rights reserved to or vested in any public authority by the terms
of any provision of law affecting the properties of any of the CIC
Entities;
(g) any liens of mechanics, materialmen and laborers for work or
services performed or materials furnished in connection with the properties
of any of the CIC Entities, which are not due and payable or which are not
delinquent or which, or the amount or validity of which, are being
contested in good faith by proper proceedings or otherwise preliminary to
the institution of such proceedings and for which reasonable reserves have
been established; and
(h) easements, rights-of-way, servitudes, restrictions and other
minor defects, encumbrances and irregularities in the title to such
property (including, without limitation, leases in the ordinary course of
business) which do not materially adversely affect the value thereof.
3.16 Mergers, Consolidations, Acquisitions and Sales. Without the prior
-----------------------------------------------
written consent of Lender which consent will not be unreasonably withheld, none
of the CIC Entities shall (a) be a party to any merger, consolidation or
reorganization unless (i) all of the parties to the merger, consolidation or
reorganization are CIC Entities, (ii) if Borrower is a party to the merger,
consolidation or reorganization, Borrower survives the merger, consolidation or
reorganization, and (iii) Borrower causes each CIC Entity that survives the
merger, consolidation or reorganization to execute and deliver to Lender any and
all documents requested by Lender in order for Lender to receive a pledge of,
and/or security interest in, the capital stock or other ownership interest of
said CIC Entity, a security interest and/or lien on all of the assets of such
CIC Entity, and a guaranty by such CIC Entity of the obligations of Borrower
pursuant hereto, nor (b) except in connection with the organization of
subsidiaries to do business in additional states, purchase or otherwise acquire
all or substantially all of the assets or stock of, or any partnership or joint
venture interest in, any other person, firm or entity, nor (c) except for
Permitted Liens, sell, transfer, convey, grant a security interest in or lease
all or any substantial part of its assets, nor (d) except in connection with the
organization of subsidiaries to do business in additional states, create any
Subsidiaries nor convey any of its assets to any Subsidiary. In the event that
any of the CIC Entities (or individual owners thereof with respect to the
creation of new entities for the purpose of conducting business in other states)
create or acquire any new subsidiaries, then any such CIC Entity shall, and/or
shall cause each new subsidiary to, execute any and all documents requested by
Lender in order for Lender to receive a pledge of, and/or a security interest
in, the capital stock or other ownership of said subsidiary, a security interest
in and/or lien on all of the assets of said subsidiary, and a guarantee by said
subsidiary of the obligations of the CIC Entities pursuant hereto.
17
3.17 Transactions With Affiliates. None of the CIC Entities shall enter
----------------------------
into any transaction, including, without limitation, the purchase, sale or
exchange of property or the rendering of any service, with any affiliate, except
as set forth on Schedule 2.1(o) on the date hereof or, subsequently, in the
---------------
ordinary course of and pursuant to the reasonable requirements of their
respective business and upon fair and reasonable terms no less favorable to them
than they would obtain in a comparable arm's length transaction with a person
not an affiliate. For the purposes of this Section 3.17, "affiliate" shall mean
a person, corporation, partnership or other entity controlling by or under
common control with any CIC Entity.
3.18 Environment. Each of the CIC Entities shall be and remain in
-----------
compliance with the provisions of all federal, state and local environmental,
health, and safety laws, codes and ordinances, and all rules and regulations
issued thereunder; notify Lender immediately of any notice of a hazardous
discharge or environmental complaint received from any governmental agency or
any other party; notify Lender immediately of any hazardous discharge from or
affecting its premises; immediately contain and remove the same, in compliance
with all applicable laws; promptly pay any fine or penalty assessed in
connection therewith; permit Lender to inspect the premises, to conduct tests
thereon, and to inspect all books, correspondence, and records pertaining
thereto; and at Lender's request, and at its expense, provide a report of a
qualified environmental engineer, satisfactory in scope, form, and content to
Lender, and such other and further assurances reasonably satisfactory to Lender
that the condition has been corrected.
ARTICLE 4
CONDITIONS TO CLOSING
---------------------
4.1 Closing of the Loan. The obligation of Lender to fund the Loan on the
-------------------
date hereof (the "Closing Date") is subject to the fulfillment, on or prior to
the Closing Date, of each of the following conditions:
(a) Borrower shall have performed and complied in all material
respects with all of the covenants, agreements, obligations and conditions
required by this Agreement.
(b) Lender shall have received an opinion of Borrower's counsel,
Alston & Bird dated the Closing Date, in form and substance satisfactory to
Lender's counsel, Chambliss & Bahner, PLLC.
(c) Lender shall have received opinions of local counsel to Check
Into Cash of Iowa, Inc. and Creditcorp of Ohio, LLC (such local counsel
must be satisfactory to Lender's counsel, Chambliss & Bahner, PLLC), dated
the Closing Date, in form and substance satisfactory to Lender's counsel,
Chambliss & Bahner, PLLC.
(d) Borrower shall have delivered to Lender an Amended, Restated and
Consolidated Second Promissory Note executed by Borrower.
18
(e) Borrower shall have delivered to Lender the Borrower Warrant
executed by Borrower, in a form acceptable to Lender and each of the Non-
Subsidiary Warrants executed by the applicable Non-Subsidiary Entity, each
in a form acceptable to Lender (collectively, by the "Warrants").
(f) Borrower shall have delivered to Lender a Security Agreement
executed by Borrower (in form acceptable to Lender) and related UCC-1
Financing Statement(s) (in form acceptable to Lender) executed by
Borrower.
(g) Borrower shall have delivered to Lender a Pledge and Security
Agreement (in a form acceptable to Lender) and a related stock proxy, stock
power, and stock certificate (all in form acceptable to Lender), executed
by each shareholder of Borrower, and a related stock pledge letter (in the
form acceptable to Lender) executed by Borrower with respect to each such
shareholder.
(h) Borrower shall have delivered to Lender a Security Agreement and
Collateral Assignment of Membership Interests (all in a form acceptable to
Lender) and related UCC-1 Financing Statements (all in a form acceptable to
Lender) executed by Borrower with respect to each of the Subsidiaries which
are limited liability companies.
(i) Borrower shall have delivered to Lender a Security Agreement and
Collateral Assignment of Membership Interests (all in form acceptable to
Lender) and related UCC-1 Financing Statements (all in a form acceptable to
Lender) executed by W. Allan Jones, Jr. with respect to each of the Non-
Subsidiary Entities.
(j) Borrower shall have delivered to Lender a Security Agreement and
Collateral Assignment of Membership Interests (all in form acceptable to
Lender) and related UCC-1 Financing Statements (all in a form acceptable to
Lender) executed by Janie P. Jones with respect to each of the Non-
Subsidiary Entities.
(k) Borrower shall have delivered to Lender a Pledge and Security
Agreement (in form acceptable to Lender) executed by Borrower with respect
to each of the Subsidiaries which are corporations.
(l) Borrower shall have delivered to Lender an Amended and Restated
Security Agreement executed by each of the CIC Entities other than Borrower
(in form acceptable to Lender) and related UCC-1 Financing Statements (in
form acceptable to Lender) executed by each of the CIC Entities other than
Borrower.
(m) Borrower shall have delivered to Lender a Guaranty Agreement
executed by each of the CIC Entities other than Borrower (in form
acceptable to Lender).
(n) Borrower shall have delivered to Lender a Landlord's Consent and
Subordination of Lien with respect to Borrower's corporation headquarters,
executed by the applicable landlord and in a form acceptable to Lender.
19
(o) Lender shall have received copies of the charter (or certificate of
incorporation) and other publicly filed organizational documents of Borrower
(and each of the other CIC Entities which are corporations), certified by the
Secretary of State or other appropriate public official in the jurisdiction in
which Borrower (and each of the other CIC Entities which are corporations) is
incorporated.
(p) Lender shall have received copies of the operating agreements of each
of the CIC Entities which are limited liability companies, certified to Lender
by an officer, manager or member of the applicable CIC Entity, and copies of the
articles of organization and other publicly filed documents of each of the CIC
Entities which are limited liability companies, certified by the Secretary of
State or other appropriate public official jurisdiction in which each of such
CIC Entities is organized.
(q) Lender shall have received certified (as of the date of this
Agreement) copies of all corporate action taken by Borrower, including
resolutions of its Board of Directors, authorizing the execution, delivery and
performance of the Loan Documents to which Borrower is a party.
(r) Lender shall have received certified (as of the date of this
Agreement) copies of all actions taken by each of the CIC Entities other than
Borrower, including resolutions of their directors, members or managers (as
applicable), authorizing the execution, delivery and performance of the Loan
Documents to which each such CIC Entity is a party.
(s) Lender shall have received a certificate as to the legal existence and
good standing of Creditcorp of Ohio, LLC and Check Into Cash of Iowa, Inc.,
issued by the Secretary of State or other appropriate public official in the
jurisdiction in which each such party is incorporated or formed.
(t) With respect to each of the CIC Entities, Lender shall have received
certificates of the Secretaries of State or other appropriate public officials
as to their qualification to do business and good standing in each jurisdiction
in which a failure to be so qualified would have a material adverse effect on
their financial positions or their ability to conduct their business in the
manner now conducted and as hereafter intended to be conducted.
(u) Each of the CIC Entities shall have delivered to Lender a Collateral
Assignment of Note, executed by each of them, in a form acceptable to Lender,
together with all original promissory notes held by each of them.
(v) Borrower shall have delivered to Lender a Trademark Security Agreement
executed by Borrower (in form acceptable to Lender) and related UCC-1 Financing
Statement(s) (in form acceptable to Lender) executed by Borrower.
20
(w) Lender shall have received an Intercreditor Estoppel Agreement
executed by Cleveland Bank & Trust Company in a form acceptable to Lender.
(x) Lender shall have received an Intercreditor Agreement executed by
W. Allan Jones, Jr. d/b/a Jones Properties in a form acceptable to Lender.
4.2 Subsequent Advances. The obligation of Lender to fund the subsequent
-------------------
Advances of the Loan on the date of each such Advance is subject to the
fulfillment, on or prior to such date, of each of the following conditions:
(a) An Event of Default (as herein defined) shall not have occurred
and be continuing.
(b) Borrower shall have delivered a Note executed by Borrower in the
original principal amount of the applicable Advance.
(c) Borrower shall have delivered a Closing Certificate (in form
acceptable to Lender), executed by Borrower.
(d) Borrower shall have caused to be delivered to Lender any and all
documents reasonably necessary to secure the Loan with the assets and
ownership interest of any subsidiaries and/or affiliates of Borrower
created for the expansion of Borrower's business into a state other than
one in which Borrower operates on the date hereof.
ARTICLE 5
DEFAULT AND REMEDIES
--------------------
5.1 Events of Default. The occurrence of any of the following shall
-----------------
constitute an Event of Default hereunder:
(a) Default by Borrower in the payment of the principal of or
interest on the indebtedness evidenced by the Note in accordance with the
terms of the Note, which default is not cured within five (5) days;
(b) Any misrepresentation by any of the CIC Entities, or any
subsidiary, member, shareholder or affiliate of any of the CIC Entities, as
to any material matter hereunder or under any of the other Loan Documents,
or delivery by any of the CIC Entities or any subsidiary, member,
shareholder or affiliate of any of the CIC Entities of any schedule,
statement, resolution, report, certificate, notice or writing to Lender
that is untrue in any material respect on the date as of which the facts
set forth therein are stated or certified;
21
(c) Failure of any of the CIC Entities, or any subsidiary, member,
shareholder or affiliate of any of the CIC Entities, to perform any of its
obligations, covenants or agreements under this Agreement, the Note or any
of the other Loan Documents to which it is a party;
(d) Any of the CIC Entities or their members (i) shall generally not
pay or shall be unable to pay its debts as such debts become due; or (ii)
shall make an assignment for the benefit of creditors or petition or apply
to any tribunal for the appointment of a custodian, receiver or trustee
for it or a substantial part of its assets; or (iii) shall commence any
proceeding under any bankruptcy, reorganization, arrangement, readjustment
of debt, dissolution or liquidation law or statute of any jurisdiction,
whether now or hereafter in effect; or (iv) shall have had any such
petition or application filed or any such proceeding commenced against it
in which an order for relief is entered or an adjudication or appointment
is made; or (v) shall indicate, by any act or intentional and purposeful
omission, its consent to, approval of or acquiescence in any such petition,
application, proceeding or order for relief or the appointment of a
custodian, receiver or trustee for it or a substantial part of its assets;
or (vi) shall suffer any such custodianship, receivership or trusteeship to
continue undischarged for a period of sixty (60) days or more;
(e) Any of the CIC Entities shall be liquidated, dissolved,
partitioned or terminated, or the charter thereof shall expire or be
revoked;
(f) A default or event of default shall occur under any of the other
Loan Documents and, if subject to a cure right, such default or event of
default shall not be cured within the applicable cure period;
(g) Any of the CIC Entities shall default in the timely payment or
performance of any obligation now or hereafter owed to Lender in connection
with any other indebtedness of Borrower or any of the CIC Entities now or
hereafter owed to Lender;
(h) Any of the CIC Entities shall have defaulted and continue to be
in default in the timely payment or performance of any other indebtedness
or obligation, which in the aggregate exceeds Fifty Thousand and No/100ths
Dollars ($50,000.00) or materially adversely affects Borrower's financial
condition;
(i) W. Allan Jones, Jr. shall no longer be significantly involved in
the management of Borrower.
With respect to any Event of Default described above that is capable of being
cured and that does not already provide its own cure procedure (a "Curable
Default"), the occurrence of such Curable Default shall not constitute an Event
of Default hereunder if such Curable Default is fully cured and/or corrected
within thirty (30) days (ten (10) days, if such Curable Default may be cured by
payment of a sum of money) of notice thereof to Borrower given in accordance
with the provisions hereof; provided, however, that this provision shall not
require notice to
22
Borrower and an opportunity to cure any Curable Default of which Borrower
has had actual knowledge for the requisite number of days set forth.
5.2 Acceleration of Maturity; Remedies. Upon the occurrence of any
----------------------------------
Event of Default described in subsection 5.1(d), the indebtedness evidenced
by the Notes as well as any and all other indebtedness of any of the CIC
Entities to Lender shall be immediately due and payable in full; and upon
the occurrence of any other Event of Default described above, Lender at any
time thereafter may at its option accelerate the maturity of the
indebtedness evidenced by the Notes as well as any and all other
indebtedness of any of the CIC Entities to Lender; all without notice of
any kind. Upon the occurrence of any such Event of Default and the
acceleration of the maturity of the indebtedness evidenced by the Notes:
(a) Lender shall be immediately entitled to exercise any and all
rights and remedies possessed by Lender pursuant to the terms of the
Notes and all of the other Loan Documents; and
(b) Lender shall have any and all other rights and remedies that
Lender may now or hereafter possess at law, in equity or by statute.
5.3 Remedies Cumulative; No Wavier. No right, power or remedy
------------------------------
conferred upon or reserved to Lender by this Agreement or any of the other
Loan Documents is intended to be exclusive of any other right, power or
remedy, but each and every such right, power and remedy shall be cumulative
and concurrent and shall be in addition to any other right, power and
remedy given hereunder, under any of the other Loan Documents or now or
hereafter existing at law, in equity or by statute. No delay or omission by
Lender to exercise any right, power or remedy accruing upon the occurrence
of any Event of Default shall exhaust or impair any such right, power or
remedy or shall be construed to be a waiver of any such Event of Default or
an acquiescence therein, and every right, power and remedy given by this
Agreement and the other Loan Documents to Lender may be exercised from time
to time and as often as may be deemed expedient by Lender.
5.4 Proceeds of Remedies. Any or all proceeds resulting from the
--------------------
exercise of any or all of the foregoing remedies shall be applied as set
forth in the Loan Document(s) providing the remedy or remedies exercised;
if none are specified, or if the remedy is provided by this Agreement, then
as follows:
First, to the costs and expenses, including, without limitation,
reasonable attorney's fees incurred by Lender in connection with the
exercise of its remedies;
Second, to the expenses of curing the default that has occurred,
in the event that Lender elects, in its sole discretion, to cure the
default that has occurred;
Third, to the payment of the obligations of the CIC Entities
under the Loan Documents (the "Obligations"), including but not
limited to the payment of the principal
23
of and interest on the indebtedness evidenced by the Note, in such
order of priority as Lender shall determine in its sole discretion;
and
Fourth, the remainder, if any, to Borrower or to any other person
lawfully thereunto entitled.
ARTICLE 6
TERMINATION
-----------
6.1 Termination of this Agreement. This Agreement shall remain in
-----------------------------
full force and effect until the later of (i) the Maturity Date (as defined
in the Notes), or (ii) the payment by Borrower of all amounts owed to
Lender, at which time Lender shall cancel the Notes and deliver them to
Borrower; provided, however, that if at any time Borrower has satisfied all
obligations to Lender, Borrower may terminate this Agreement by providing
written notice to Lender.
ARTICLE 7
MISCELLANEOUS
-------------
7.1 Performance By Lender. If Borrower shall default in the payment,
---------------------
performance or observance of any covenant, term or condition of this
Agreement, which default is not cured within the applicable cure period,
then Lender may, at its option, pay, perform or observe the same, and all
payments made or costs or expenses incurred by Lender in connection
therewith (including but not limited to reasonable attorney's fees), with
interest thereon at the highest default rate provided in the Note, shall be
immediately repaid to Lender by Borrower and shall constitute a part of the
Obligations. Lender shall be the sole judge of the necessity for any such
actions and of the amounts to be paid.
7.2 Successors and Assigns Included in Parties. Whenever in this
------------------------------------------
Agreement one of the parties hereto is named or referred to, the heirs,
legal representatives, successors, successors-in-title and assigns of such
parties shall be included, and all covenants and agreements contained in
this Agreement by or on behalf of Borrower or by or on behalf of Lender
shall bind and inure to the benefit of their respective heirs, legal
representatives, successors-in-title and assigns, whether so expressed or
not.
7.3 Costs and Expenses. Borrower agrees to pay all reasonable costs
------------------
and expenses incurred by Lender in connection with the making of the Loan,
including but not limited to filing fees, recording taxes, indebtedness
taxes, and reasonable attorneys' fees, promptly upon demand of Lender.
Borrower further agrees to pay all premiums for insurance required to be
maintained by the CIC Entities pursuant to the terms of the Loan Documents
and all of the out-of-pocket costs and expenses incurred by Lender in
connection with the collection of the Loan, amendment to the Loan
Documents, or prepayment of the Loan, including but not limited to
reasonable attorneys' fees, promptly upon demand of Lender.
24
7.4 Assignment. The Note, this Agreement and the other Loan Documents may
----------
be endorsed, assigned and/or transferred in whole or in part by Lender, and any
such holder and/or assignee of the same shall succeed to and be possessed of the
rights and powers of Lender under all of the same to the extent transferred and
assigned. Lender may grant participations in all or any portion of its interest
in the indebtedness evidenced by the Notes, and in such event Borrower shall
continue to make payments due under the Loan Documents to which it is a party to
Lender and Lender shall have the sole responsibility of allocating and
forwarding such payments in the appropriate manner and amounts. Borrower
covenants that none of the CIC Entities shall assign any of its rights nor
delegate any of its duties hereunder or under any of the other Loan Documents
without the prior express written consent of Lender.
7.5 Time of the Essence. Time is of the essence with respect to each and
-------------------
every covenant, agreement and obligation of any of the CIC Entities hereunder
and under all of the other Loan Documents.
7.6 Severability. If any provision(s) of this Agreement or the application
------------
thereof to any person or circumstance shall be invalid or unenforceable to any
extent, the remainder of this Agreement and the application of such provisions
to other persons or circumstances shall not be affected thereby and shall be
enforced to the greatest extent permitted by law.
7.7 Interest and Loan Charges Not to Exceed Maximum Allowed by Law.
--------------------------------------------------------------
Anything in this Agreement, the Notes or any of the other Loan Documents to the
contrary notwithstanding, in no event whatsoever, whether by reason of
advancement of proceeds of the Loan, acceleration of the maturity of the unpaid
balance of the Loan or otherwise, shall the interest and loan charges agreed to
be paid to Lender for the use of the money advanced or to be advanced hereunder
exceed the maximum amounts collectible under applicable laws in effect from time
to time. It is understood and agreed by the parties that, if for any reason
whatsoever the interest or loan charges paid or contracted to be paid by
Borrower in respect of the indebtedness evidenced by the Notes shall exceed the
maximum amounts collectible under applicable laws in effect from time to time,
then ipso facto, the obligation to pay such interest and/or loan charges shall
----------
be reduced to the maximum amounts collectible under applicable laws in effect
from time to time, and any amounts collected by Lender that exceed such maximum
amounts shall be applied to the reduction of the principal balance of the
indebtedness evidenced by the Notes and/or refunded to Borrower so that at no
time shall the interest or loan charges paid or payable in respect of the
indebtedness evidenced by the Notes exceed the maximum amounts permitted from
time to time by applicable law.
7.8 Article and Section Headings: Terminology. Numbered and titled article
-----------------------------------------
and section headings and defined terms are for convenience only and shall not be
construed as amplifying or limiting any of the provisions of this Agreement. All
personal pronouns used in this Agreement, whether used on the masculine,
feminine or neuter gender, shall include all other genders; the singular shall
include the plural and vice versa.
25
7.9 Notices. Any and all notices, elections or demands permitted or
-------
required to be made under this Agreement or any of the Loan Documents shall be
in writing, signed by the party giving such notice, election or demand and shall
be delivered personally, telecopied, or sent by certified mail or overnight via
nationally recognized courier service (such as Federal Express), to the other
party at the address set forth below, or at such other address as may be
supplied in writing and of which receipt has been acknowledged in writing. The
date of personal delivery, telecopy or telex or two (2) business days after the
date of mailing (or the next business day after delivery to such courier
service), as the case may be, shall be the date of such notice, election or
demand. For the purposes of this Agreement:
The Address of Lender is: Sirrom Capital Corporation
Suite 200
500 Church Street
Nashville, TN 37219
Attention: John Harrison
Telecopy: 615/726-1208
with a copy to: Chambliss & Bahner, PLLC
1000 Tallan Building
Two Union Square
Chattanooga, TN 37402
Attention: J. Patrick Murphy, Esq.
Telecopy: 423/265-9574
The Address of Borrower is: Check into Cash, Inc.
P.O. Box 1015
205 Second Street N.W., Jones Building
Cleveland, TN 37364-1015
Attention: W. Allan Jones, Jr.
Telecopy: 423/476-9200
with a copy to: Alston & Bird
One Atlantic Center
1201 West Peachtree Street
Atlanta, Georgia 30309-3424
Attention: David B. Brown, Jr.
Telecopy: (404) 881-7777
7.10 Entire Agreement. This Agreement and the other written agreements
----------------
between Borrower and Lender represent the entire agreement between the parties
concerning the subject matter hereof, and all oral discussions and prior
agreements are merged herein; provided, if there is a conflict between this
Agreement and any other document executed contemporaneously herewith with
respect to the Obligations, the provision of this Agreement shall control. The
execution and delivery of this Agreement and the other Loan Documents by the CIC
Entities were not based upon any fact or material provided by Lender, nor were
the
26
CIC Entities induced or influenced to enter into this Agreement or the other
Loan Documents by any representation, statement, analysis or promise by Lender.
7.11 Governing Law and Amendments. This Agreement and all of the Loan
----------------------------
Documents shall be construed and enforced under the laws of the State of
Tennessee applicable to contracts to be wholly performed in such State except to
the extent certain rights and privileges may be granted Lender under applicable
federal laws in which event federal law shall control. No amendment or
modification hereof shall be effective except in a writing executed by each of
the parties hereto.
7.12 Survival of Representations and Warranties. All covenants,
------------------------------------------
representations and warranties contained herein or in any of the Loan Documents,
or made by or furnished on behalf of the CIC Entities in connection herewith or
any of the Loan Documents, shall survive the execution and delivery of this
Agreement and all other Loan Documents and shall continue in full force and
effect so long as the Obligations are unpaid.
7.13 Jurisdiction and Venue. Borrower, for itself and the other CIC
----------------------
Entities, hereby consents to the jurisdiction of the courts of the State of
Tennessee and the United States District Court for the Middle District of
Tennessee, as well as to the jurisdiction of all courts from which an appeal may
be taken from such courts, for the purpose of any suit, action or other
proceeding arising out of any obligations arising under this Agreement or any
other Loan Documents or with respect to the transactions contemplated hereby,
and expressly waives any and all objections it may have as to venue in any of
such courts.
7.14 Waiver of Trial by Jury. LENDER AND BORROWER (FOR ITSELF AND THE
-----------------------
OTHER CIC ENTITIES) HEREBY WAIVE TRIAL BY JURY IN ANY ACTIONS, PROCEEDINGS,
CLAIMS OR COUNTER-CLAIMS, WHETHER IN CONTRACT OR TORT, AT LAW OR IN EQUITY,
ARISING OUT OF OR IN ANY WAY RELATING TO THIS AGREEMENT OR THE LOAN DOCUMENTS.
7.15 Counterparts. This Agreement may be executed in any number of
------------
counterparts and by different parties to this Agreement in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same Agreement.
7.16 Construction and Interpretation. Should any provision of this
-------------------------------
Agreement require judicial interpretation, the parties hereto agree that the
court interpreting or construing the same shall not apply a presumption that the
terms hereof shall be more strictly construed against one party by reason of the
rule of construction that a document is to be more strictly construed against
the party that itself or through its agent prepared the same, it being agreed
that Borrower, Lender and their respective agents have participated in the
preparation hereof.
27
IN WITNESS WHEREOF, the parties hereto have executed this Agreement, or
have caused this Agreement to be executed by their duly authorized officers, as
of the day and year first above written.
LENDER:
------
SIRROM CAPITAL CORPORATION, a Tennessee
corporation
By: /s/ John C. Harrison
----------------------------
Title: VP
-------------------------
BORROWER:
--------
CHECK INTO CASH, INC., a Delaware
corporation
By: /s/ Nelson Bechhon
-----------------------------
Title: President
--------------------------
28
FIRST AMENDMENT TO
AMENDED AND RESTATED LOAN AGREEMENT
-----------------------------------
THIS FIRST AMENDMENT TO AMENDED AND RESTATED LOAN AGREEMENT (the
"Amendment") dated as of the 1st day of July, 1997, is made and entered into on
the terms and conditions hereinafter set forth, by and between CHECK INTO CASH,
INC., a Delaware corporation ("Borrower"), and SIRROM CAPITAL CORPORATION, a
Tennessee corporation ("Lender").
WITNESSETH:
----------
WHEREAS, Lender made a term loan to Borrower in the original principal
amount of Three Million Five Hundred Thousand and No/100ths Dollars
($3,500,000.00) (the "Loan") on the terms and conditions set forth in that
certain Amended and Restated Loan Agreement dated as of February 28, 1997, by
and between Lender and Borrower (as now or hereafter amended, the "Loan
Agreement"); capitalized terms used herein but not otherwise defined shall have
the meanings ascribed thereto in the Loan Agreement; and
WHEREAS, Borrower has created certain new Subsidiaries which are Check into
Cash of California, Inc., Check into Cash of Missouri, Inc., and Check into Cash
of Nebraska, Inc. (collectively, the "New Subsidiaries"), changed the name of
other Subsidiaries, and taken other actions with respect to its corporate
structure, and in connection therewith, is obligated pursuant to the Loan
Agreement to execute and deliver to Lender the additional agreements and
documents described below; and
WHEREAS, this Agreement shall amend the Loan Agreement.
AGREEMENT:
---------
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Borrower and Lender hereby agree as follows:
1. Borrower confirms to Lender that the representations, warranties and
covenants contained in the Loan Agreement apply to all of its Subsidiaries (as
defined in the Loan Agreement).
2. Borrower hereby represents and warrants to Lender that all of the
representations made in Section 2.1 of the Loan Agreement are (i) now applicable
to Borrower and the Subsidiaries and (ii) true and correct as of the date
hereof.
3. Contemporaneous with the execution and delivery of this Amendment.
Borrower shall cause to be delivered to Lender the following:
(a) an Amended and Restated Stock Purchase Warrant executed by Borrower,
together with a warrant valuation letter, each in form and substance acceptable
to Lender;
(b) a Second Amended and Restated Security Agreement and an Amended and
Restated Guaranty Agreement executed by each of the Subsidiaries and in form and
substance satisfactory to Lender;
(c) UCC-3 Financing Statements executed by each of the Subsidiaries
("changed Subsidiaries") whose names have changed since February 28, 1997, for
filing with the Tennessee Secretary of State and each of the Changed
Subsidiaries' state of incorporation, each in form and substance satisfactory to
Lender;
(d) UCC-1 Financing Statements executed by each of the New Subsidiaries as
debtors for filing with the Tennessee Secretary of State and the state of each
of the New Subsidiaries' incorporation, each in form and substance statisfactory
to Lender;
(e) a First Amended to Security Agreement and Collateral Assignment of
Membership Interests and an Amended and Restated Membership Assignment Letter,
each executed by Borrower and in form and substance satisfactory to Lender;
(f) Amendments to Pledge and Security Agreement executed by Allan Jones
and Janie Jones in form and substance acceptable to Lender;
(g) such additional stock powers, stock proxies, and other instruments as
may be required to evidence Lender's security interests and/or pledges in
Borrower and the Subsidiaries, all in form and substance satisfactory to Lender;
(h) certified resolutions of the New Subsidiaries approving the Loan
Documents to which each is a party; and
(i) UCC-3 Amendments executed by Borrower and Check into Cash Holdings,
Inc. reflecting the name changes to the Changed Subsidiaries.
4. The terms "Loan Document" and "Loan Documents" as defined in the Loan
Agreement are amended to include this Amendment and any and all other documents
relating to the Loan or the Additional Loan (i) by and between Borrower or any
other person or entity and Lender or (ii) executed by Borrower or any other
person or entity in favor of Lender. All capitalized terms not defined herein
shall have the meanings given to them in the Loan Agreement.
5. Except as modified and amended hereby, the Loan Agreement shall remain
in full force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment, or
have caused this Amendment to be executed by their duly authorized officers, as
of the day and year first above written.
BORROWER: LENDER:
- -------- ------
CHECK INTO CASH, INC., SIRROM CAPITAL CORPORATION,
a Delaware corporation a Tennessee corporation
By: /s/ Fred Krosner By: /s/ John C. Harrison
---------------------------- -----------------------------
Title: VP Title: VP
------------------------ ------------------------
3
SECOND AMENDMENT TO
-------------------
AMENDED AND RESTATED LOAN AGREEMENT
-----------------------------------
THIS SECOND AMENDMENT TO AMENDED AND RESTATED LOAN AGREEMENT (the
"Amendment"), dated as of September ___,1997, is made and entered into on the
terms and conditions hereinafter set forth, by and between CHECK INTO CASH,
INC., a Delaware corporation ("Borrower"), and SIRROM CAPITAL CORPORATION, a
Tennessee corporation ("Lender").
WITNESSETH
----------
WHEREAS, Lender and Borrower entered into an Amended and Restated Loan
Agreement, dated as of February 28, 1997, ("Loan Agreement") and subsequently
agreed to a First Amendment to Amended and Restated Loan Agreement, dated as of
June 2, 1997; and
WHEREAS, Borrower is an "S" corporation under the Internal Revenue Code of
1986, as amended; and
WHEREAS, Lender and Borrower agree that the affirmative covenants of
Borrower in the Loan Agreement should not prevent Borrower from making
distributions to its shareholders for the purpose of paying federal income
taxes on the income of Borrower that is attributed to Borrower's shareholders;
and
WHEREAS, Lender and Borrower agree that the covenants of the Borrower in
the Loan Agreement should not prevent the Borrower from granting a stock bonus
to Stephen Scoggins or extending a loan to Scoggins to pay income taxes incurred
in connection with such bonus; and
WHEREAS, this Amendment shall amend the Loan Agreement.
AGREEMENT
---------
1. The Loan Agreement is hereby amended by striking the last sentence of
Section 3.l2 and replacing that sentence with the following:
"Notwithstanding anything in this Section 3.12 or elsewhere to the
contrary, nothing herein shall prevent any CIC Entity from declaring or paying
any dividend of any kind or making any other distribution of any kind to
Borrower, nor shall anything in this Section 3.12 or elsewhere prevent Borrower,
while it retains its status as an "S" corporation under the Internal Revenue
Code, from declaring or paying any dividend to is shareholders for the payment
of federal income taxes on Borrower's income that is attributed to such
shareholders."
2. The parties hereto agree that any distributions made by Borrower prior
to the date of this Amendment that would have been permissible if this Amendment
had been in effect, are hereby approved by Lender.
3. Lender hereby waives Borrower's covenants, contained in Sections 3.12
and 3.13 of the Loan Agreement, not to pay dividends, make distributions or make
any payments in cash or property to its shareholders or employees, nor to make
loans, advances or other extensions of credit, to the extent such covenants
prevent Borrower from making the following distributions, paying the following
bonuses or making the following loans:
(i) July 1, 1997, stock bonus to Stephen Scoggins, pursuant to that
certain Employment Agreement by and between Borrower and Stephen Scoggins, dated
July 31, 1997 (the "Scoggins Employment Agreement"); and
(ii) Loan to Stephen Scoggins, on a future date to be determined, pursuant
to Section 6(c) of the Scoggins Employment Agreement, for the purpose of paying
federal income taxes incurred by Stephen Scoggins in connection with the July 1,
1997 stock bonus, and the future forgiveness of such loan in consideration of
Mr. Scoggins' continued service to Borrower.
4. Pursuant to Section 3.13 of the Loan Agreement, this letter shall also
constitute Lender's written consent to Borrower's extension of a loan to Stephen
Scoggins, pursuant to Section 6(c) of the Scoggins Employment Agreement, in the
amount of the income taxes payable as a result of the July 1, 1997 stock bonus,
and the future forgiveness of such loan by the Borrower in consideration of
Scoggins' continued service to Borrower.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their duly authorized officers, as of the date first written above.
SIRROM CAPITAL CORPORATION
By:/s/ John C. Harrison
-----------------------
Title: VP
--------------------
CHECK INTO CASH, INC.
By:/s/ Fred Krosner
-----------------------
Title: VP
--------------------
-2-
THIRD AMENDMENT TO AMENDED
AND RESTATED LOAN AGREEMENT
---------------------------
THIS THIRD AMENDMENT TO AMENDED AND RESTATED LOAN AGREEMENT ("Amendment")
dated as of the 26th day of June, 1998, is made and entered into on the terms
and conditions hereinafter set forth, by and between CHECK INTO CASH, INC., a
Delaware corporation ("Borrower"), SIRROM CAPITAL CORPORATION, a Tennessee
corporation ("Lender"), and SIRROM FUNDING CORPORATION, a Delaware corporation
and a wholly-owned subsidiary of Lender ("Funding").
RECITALS:
--------
WHEREAS, Lender has previously made a term loan to Borrower in the original
principal amount of Three Million Five Hundred Thousand and No/100ths Dollars
($3,500,000.00) (the "Original Loan") on the terms and conditions set forth in
that certain Amended and Restated Loan Agreement dated February 28, 1997, by and
between Lender and Borrower, as amended by that certain First Amendment to
Amended and Restated Loan Agreement dated July 1, 1997 by and between Lender and
Borrower (the "First Amendment") and that certain Second Amendment to Amended
and Restated Loan Agreement dated September 1997 (the "Second Amendment") (the
Loan Agreement, as amended by the First Amendment and the Second Amendment, and
as now or hereafter amended, is hereinafter referred to as the "Loan
Agreement");
WHEREAS, the Original Loan is further evidenced and secured by certain
agreements, documents and instruments as more particularly described in the Loan
Agreement and defined therein as the "Loan Documents";
WHEREAS, Borrower desires to borrow from Lender and Lender desires to lend
to Borrower up to an additional Three Million Five Hundred Thousand and
No/100ths Dollars ($3,500,000.00) (the "Additional Loan") pursuant to a Secured
Promissory Note of even date herewith by Borrower in favor of Lender, on the
terms and conditions set forth in the Loan Agreement, secured by the Loan
Documents, including without limitation (a) a security interest in certain
tangible and intangible personal property granted pursuant to that certain
Security Agreement dated February 28, 1997, by and between Borrower and Lender;
(b) a security interest in certain royalties, trademarks and other general
intangibles granted pursuant to the Trademark Security Agreement dated February
28, 1997, by and between Borrower and Lender; (c) a pledge of certain securities
pursuant to the terms of that certain Pledge and Security Agreement dated
February 28, 1997, as amended, by and between Allan Jones and Lender (the "A.J.
Pledge Agreement"); (d) a pledge of certain securities pursuant to the terms of
that certain Pledge and Security Agreement dated February 28, 1997, as amended,
by and between Janie Jones and
Lender (the "J.J. Pledge Amendment"); (e) an Amended and Restated Guaranty
Agreement dated July 1, 1997 by the Current Subsidiaries (as defined on the
execution pages hereof) in favor of Lender (the "Guaranty"); (f) a Second
Amended and Restated Security Agreement dated July 1, 1997 by and between the
Current Subsidiaries and Lender (the "Guarantor Security Agreement"); (g) a
Security Agreement and Collateral Assignment of Membership Interests dated
February 28, 1997, as amended, by and between Borrower and Lender; and (h) a
Pledge and Security Agreement dated February 28, 1997, by and between Borrower
and Lender (the "Borrower Pledge Agreement").
WHEREAS, Lender has transferred the Original Loan and the Loan Documents to
Funding, subject to the reservation by Lender of certain rights with respect to
the making of additional loans to Borrower; and
WHEREAS, this Amendment shall amend the Loan Documents.
AGREEMENT:
---------
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Borrower, Funding and Lender hereby agree as follows:
1. Capitalized terms used herein but not otherwise defined shall have the
meanings ascribed thereto in the Loan Agreement.
2. Section 1.1 of the Agreement is hereby amended to read in its entirety
as follows:
(a) Subject to the terms and conditions hereof, Lender shall make the
Loan to Borrower by wire transfer in immediately funds. The Loan shall be
evidenced by (i) certain Secured Promissory Notes (collectively, the
"Original Notes") in the aggregate original principal amount of Three
Million Five Hundred Thousand and No/100th Dollars ($3,500,000.00), dated
respectively, November 8, 1996, December 26, 1996, March 11, 1997, April 3,
1997, April 17, 1997, May 2, 1997, and May 21, 1997, each in the original
principal amount of Five Hundred Thousand and No/100th Dollars
($500,000.00), executed by Borrower in favor of Lender, substantially in
the form attached hereto as Exhibit A and incorporated herein by this
reference and (ii) a Secured Promissory Note (the "New Note") in the
original principal amount of up to Three Million Five Hundred Thousand and
No/100th Dollars ($3,500,000.00), dated of even date herewith, executed by
Borrower in favor of Lender, substantially in the form of Exhibit A
attached to the Third Amendment to Loan Agreement and
2
Loan Documents and incorporated herein by this reference (the Original
Notes and the New Note shall be referred to herein collectively as the
"Notes"). The Loan shall be payable in accordance with the Notes. The
Notes, this Agreement and any other instruments and documents executed by
Borrower, any guarantor of the Loan, or any shareholder, member, partner,
subsidiary, or affiliate of Borrower, now or hereafter evidencing, securing
or in any way related to the indebtedness evidenced by the Notes are herein
individually referred to as a "Loan Document" and collectively referred to
as the "Loan Documents."
(b) The portion of the Loan represented by the New Note shall be
advanced to Borrower in multiple advances (individually, an "Advance" and
collectively, the "Advances"). The first Advance shall be in the principal
amount of $750,000 and shall be made on the date hereof. The subsequent
Advances shall be in increments of at least $500,000. Lender's obligation
to fund the subsequent Advances shall be subject to the conditions set
forth in Section 4.2. In no event shall the subsequent Advances be made
after October 15, 1998.
3. Section 4.2. of the Loan Agreement is hereby amended to read as
follows:
4.2 Subsequent Advances. The obligation of Lender to fund the
-------------------
subsequent Advances on the date of any Advance is subject to the
fulfillment, on or prior to such date, of each of the following conditions:
(a) An Event of Default (as herein defined) shall not have
occurred and be continuing;
(b) Borrower shall have delivered a Closing Certificate (in a
form acceptable to Lender), executed by Borrower; and
(c) Borrower shall have delivered to Lender a Closing Statement
(in a form acceptable to Lender), executed by Borrower.
4. The obligations of Borrower in connection with and/or relating to the
Additional Loan are further evidenced and/or secured by the Loan Documents. In
connection therewith:
(a) Each of the New Subsidiaries (as defined in the execution pages
hereof) hereby agree to be a party to and subject to the Guaranty in
accordance with its terms. Without limiting the foregoing, each of the New
Subsidiaries guarantees to Lender the full and prompt payment and
performance of (a) the indebtedness evidenced by the Notes,
3
including, without limitation, principal and any and all interest accrued
or to accrue thereon, (b) the obligations of Borrower to Lender pursuant to
the Notes, the Loan Agreement and any and all other instruments, documents
and/or agreements now or hereafter further evidencing, securing or
otherwise related to the indebtedness evidenced by the Notes (collectively
the "Loan Documents") and (c) any and all other indebtedness and other
obligations of Borrower to Lender, direct or contingent (including but not
limited to obligations incurred as indorser, guarantor or surety), however
evidenced or denominated, and however and whenever incurred, including but
not limited to indebtedness incurred pursuant to any present or future
commitment of Lender to Borrower (the aforesaid indebtedness and other
obligations are sometimes herein collectively referred to as the
"Guaranteed Obligations").
(b) Each of the New Subsidiaries agree to be a party to and subject
to the Guarantor Security Agreement in accordance with its terms. Without
limiting the foregoing, each of the New Subsidiaries ("Grantor") hereby
grants to Lender a security interest in the following described property
and any and all proceeds and products thereto and accessions thereto:
(i) Equipment. All equipment and other tangible personal
---------
property of Grantor of any kind and description, whether now owned or
hereafter acquired and wherever located, together with all parts,
accessories and attachments and all replacements thereof and additions
thereto;
(ii) Inventory, Accounts, Contract Rights, Chattel Paper,
---------------------------------------------------
Documents, Instruments and General Intangibles. All of Grantor's
----------------------------------------------
inventory and any agreements for lease of same and rentals therefrom,
and all of Grantor's accounts, accounts receivable, contract rights,
chattel paper, software, documents, instruments and general
intangibles (including but not limited to goodwill, patents and
trademarks) and the proceeds therefrom, whether now in existence or
owned or hereafter arising or acquired, entered into or created, and
wherever located; and whether held for lease or sale, or furnished or
to be furnished under contracts of service;
(iii) Trademarks, Etc. All trademarks, trade names, and service
---------------
marks now held or hereafter acquired by Grantor, both those that are
registered with the United States Patent and Trademark office and any
unregistered marks used by Grantor in the United States, and trade
dress, including logos and designs, in connection with which any such
marks are used,
4
together with all registrations regarding such marks and the rights to
renewals thereof, and the goodwill of the business of Grantor
symbolized by such marks, and all patents, licenses, technology and
other intangible property of Grantor, whether now owned or
hereafter acquired;
(iv) Copyrights. All copyrights now held or hereafter acquired by
----------
Grantor and any applications for U.S. copyrights hereafter made by
Grantor; and
(v) Proprietary Information, Computer Data, Etc. All proprietary
--------------------------------------------
information and trade secrets of Grantor with respect to Grantor's
business, whether now owned or hereafter acquired, and all of
Grantor's computer programs and the information contained therein and
all intellectual property rights with respect thereto, whether now
owned or hereafter acquired.
5. Borrower hereby represents and warrants to Lender that all of the
representations made in Section 2 of the Loan Agreement are true and correct as
of the date hereof except for those representations and warranties which
expressly relate to an earlier date (which representations and warranties shall
be true and correct as of such date), and except as modified or supplemented by
Schedule A attached hereto and incorporated herein by this reference. With
- ----------
respect to any representations and warranties which expressly relate to an
earlier date, Borrower represents that it has set forth on Schedule A any
----------
exceptions to such representations and warranties that are necessary to make
them true and correct as of the date hereof.
6. Borrower hereby represents and warrants to Lender that the address
designated as Borrower's principal place of business on Schedule B attached
----------
hereto and incorporated herein by this reference is the principal place of
Borrower's business and that all of the locations set forth on said Schedule B
----------
are the records of all tangible collateral and the place where the records
concerning all intangible collateral are kept and/or maintained.
7. Borrower shall pay to Lender a processing fee of 2% of the Additional
Loan which will be paid on a pro rata basis at the time each Advance. In
addition, Borrower shall pay all expenses of Lender incurred in connection with
the Additional Loan upon the funding of the First Advance of the Additional
Loan.
8. Borrower hereby covenants to Lender that it shall use the proceeds of
the Additional Loan for working capital.
5
9. The obligation of Lender to fund the Additional Loan on the date
hereof is subject to Borrower's delivery to Lender or Lender's receipt of each
of the following:
(a) a Secured Promissory Note executed by Borrower, in form and
substance acceptable to Lender;
(b) a Stock Purchase Warrant executed by Borrower, in form and
substance acceptable to Lender and a related warrant valuation letter
executed by Borrower in form acceptable to Lender;
(c) an opinion of Borrower's counsel Alston & Bird, in form and
substance satisfactory to Lender's counsel;
(d) a BIDCO Report executed by Borrower, in form and substance
acceptable to Lender;
(e) a Second Amendment to a Subordination Agreement between
NationsBank of Tennessee, Inc., N.A. ("NationsBank") and Borrower executed
by NationsBank in form acceptable to Lender;
(f) a UCC-3 statement of Amendment executed by Borrower for recording
with the Tennessee Secretary of State to reflect the increase in the
maximum principal indebtedness of the Loan;
(g) UCC-1 Financing Statements executed by each of the New
Subsidiaries for recording with the Tennessee Secretary of State and their
respective states of incorporation;
(h) an Amendment to Stock Pledge Agreement executed by Borrower in
form acceptable to Lenders together with related stock proxies, stock
powers and stock certificates with respect to each of the New Subsidiaries
(all in form acceptable to Lender), executed by Borrower, and related stock
pledge letters (all in form acceptable to Lender) executed by each of the
New Subsidiaries.
(i) copies of the certificates or articles of incorporation of
Borrower and each of the New Subsidiaries certified by the Secretary of
State or other appropriate public official in their respective states of
incorporation;
(j) a certificate as to the legal existence and good standing of
Borrower and each of the New Subsidiaries issued by the Secretary of State
or other appropriate public official in their respective states of
incorporation;
(k) certified resolutions of the Board of Directors of Borrower and
each of the Subsidiaries (including the Subsidiaries) set forth on the
signature page hereof
6
authorizing their participation in the transactions set forth and
contemplated hereby; and
(l) the execution of this Agreement by each of the parties set forth
on the execution pages hereof.
10. Borrower represents and warrants that (a) the Loan Documents are
valid, binding and enforceable against Borrower and each of the New Subsidiaries
and the Current Subsidiaries according to their terms, subject to principles of
equity and laws applicable to the rights of creditors generally, including
bankruptcy laws, and (b) no default or Event of Default presently exists under
the Loan Documents and no condition presently exists which, with the giving of
notice, the passing of time, or both would cause such a default or Event of
Default. Borrower further acknowledges that the obligations of Borrower and each
of the New Subsidiaries and the Current Subsidiaries evidenced by the Loan
Documents are not subject to any counterclaim, defense or right of setoff, and
Borrower hereby releases Lender from any claim, known or unknown, that Borrower
may have against Lender as of the date of execution of this Amendment.
11. The terms "Loan Document" and "Loan Documents" as defined in the Loan
Agreement are amended to include this Amendment.
12. This Amendment may be executed in any number of counterparts and by
different parties to this Amendment in separate counterparts, each of which when
so executed shall be deemed to be an original and all of which taken together
shall constitute one and the same Amendment.
13. Borrower hereby acknowledges that the Loan Documents have been
assigned to Funding, subject to the reservation of certain rights with respect
to the making of additional loans, and that all references to Lender in the Loan
Documents shall hereafter include Funding and Funding is and shall be entitled
to all rights and benefits thereunder.
14. Except as modified and amended hereby, the Loan Documents shall remain
in full force and effect.
7
IN WITNESS WHEREOF, the parties hereto have executed this Amendment,
or have caused this Amendment to be executed by their duly authorized
officers, as of the day and year first above written.
BORROWER: LENDER:
-------- ------
CHECK INTO CASH, INC. SIRROM CAPITAL CORPORATION,
a Delaware corporation a Tennessee corporation
By: /s/ Fred Krosner By: JOHN C. HARRISON
--------------------------- --------------------------
Title: VP Title: VP
----------------------- ------------------------
SIRROM FUNDING CORPORATION,
a Delaware corporation
By:JOHN C. HARRISON
--------------------------
Title: VP
-----------------------
8
CURRENT SUBSIDIARIES
--------------------
The following parties (the "Current Subsidiaries") join in the execution of
this Amendment to acknowledge and confirm that the Additional Loan is guaranteed
pursuant to the Guaranty and is secured by the Guarantor Security Agreement.
The terms of the Guaranty and the Guarantor Security Agreement are hereby
modified accordingly.
CREDITCORP OF TENNESSEE, INC.
By: /s/ Fred Krosner
--------------------------
Title: VP
------------------------
CHECK INTO CASH HOLDINGS, INC.
By: /s/ Fred Krosner
--------------------------
Title: VP
------------------------
CHECK INTO CASH OF IOWA, INC.
By: /s/ Fred Krosner
--------------------------
Title: VP
------------------------
CHECK INTO CASH OF KENTUCKY, LLC
By: /s/ Fred Krosner
--------------------------
Title: VP
------------------------
CHECK INTO CASH OF INDIANA, LLC
By: /s/ Fred Krosner
--------------------------
Title: VP
------------------------
CHECK INTO CASH OF ILLINOIS, LLC
By: /s/ Fred Krosner
--------------------------
Title: VP
------------------------
9
CHECK INTO CASH OF WISCONSIN, LLC.
By: /s/ Fred Krosner
------------------------------
Title: VP
----------------------------
CHECK INTO CASH OF OHIO, LLC
By: /s/ Fred Krosner
------------------------------
Title: VP
----------------------------
JONES MANAGEMENT SERVICES, LLC
By: /s/ Fred Krosner
------------------------------
Title: VP
----------------------------
CHECK INTO CASH OF NEBRASKA, INC.
By: /s/ Fred Krosner
------------------------------
Title: VP
----------------------------
CHECK INTO CASH OF MISSOURI, INC.
By: /s/ Fred Krosner
------------------------------
Title: VP
----------------------------
CHECK INTO CASH OF CALIFORNIA, INC.
By: /s/ Fred Krosner
------------------------------
Title: VP
----------------------------
10
NEW SUBSIDIARIES
----------------
The following parties (the "New Subsidiaries") join in the execution of
this Amendment for the purpose of agreeing to be bound by Subsections 4(a) and
4(b) hereof.
CHECK INTO CASH OF PENNSYLVANIA,
INC.
By: /s/ Fred Krosner
--------------------------
Title: VP
------------------------
CHECK INTO CASH OR OREGON, INC.
By: /s/ Fred Krosner
--------------------------
Title: VP
------------------------
CHECK INTO CASH OR WASHINGTON, INC.
By: /s/ Fred Krosner
--------------------------
Title: VP
------------------------
CHECK INTO CASH OF NORTH CAROLINA,
INC.
By: /s/ Fred Krosner
--------------------------
Title: VP
------------------------
CHECK INTO CASH OF MISSISSIPPI,
INC.
By: /s/ Fred Krosner
--------------------------
Title: VP
------------------------
CHECK INTO CASH OF SOUTH CAROLINA,
INC.
By: /s/ Fred Krosner
--------------------------
Title:
------------------------
11
PLEDGES
-------
The following parties join in the execution of this Amendment to
acknowledge and confirm that the Additional Loan is secured by (i) the A.J.
Pledge Agreement, and (ii) the J.J. Pledge Agreement, as applicable.
/s/ W. Allan Jones Jr.
-------------------------
W. Allan Jones, Jr.
/s/ Janie P. Jones
-------------------------
Janie P. Jones
12
EX-10.4.1
5
AMENDED AND RESTATED STOCK PURCHASE WARRANT
EXHIBIT 10.4.1
THE SHARES OF COMMON STOCK REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR ANY
APPLICABLE STATE SECURITIES LAW AND MAY NOT BE TRANSFERRED UNTIL (I) A
REGISTRATION STATEMENT UNDER THE ACT OR SUCH APPLICABLE STATE SECURITIES
LAWS SHALL HAVE BECOME EFFECTIVE WITH REGARD THERETO, OR (II) IN THE
OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY, REGISTRATION UNDER SUCH
SECURITIES ACTS OR SUCH APPLICABLE STATE SECURITIES LAWS IS NOT REQUIRED IN
CONNECTION WITH SUCH PROPOSED TRANSFER.
AMENDED AND RESTATED STOCK PURCHASE WARRANT
-------------------------------------------
This Amended and Restated Warrant (the "Warrant") is issued this 12th day
of May, 1997, by CHECK INTO CASH, INC., a Delaware corporation (the "Company"),
to SIRROM CAPITAL CORPORATION, a Tennessee corporation (SIRROM CAPITAL
CORPORATION and any subsequent assignee or transferee hereof are hereinafter
referred to collectively as "Holder" or "Holders").
WHEREAS, the Company and the Holder are parties to that certain Stock
Purchase Warrant dated February 28, 1997; and
WHEREAS, as a result of a stock split, the number of shares of the
Company's common stock outstanding has increased, and the Holder and the Company
desire to amend and restate the Stock Purchase Warrant described above to
accurately reflect the number of shares to which Holder is entitled;
NOW, THEREFORE, in consideration of the premises, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Company and the Holder hereby agree that the above-referenced
Stock Purchase Warrant is amended to read as follows:
AGREEMENT:
1. Issuance of Warrant; Term. For and in consideration of SIRROM CAPITAL
-------------------------
CORPORATION making a loan to the Company in an amount of up to Three Million
Five Hundred Thousand and no/100ths Dollars ($3,500,000) pursuant to one or more
secured promissory notes (collectively, the "Note") and a related Amended and
Restated Loan Agreement dated February 28, 1997 (the "Loan Agreement"), and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Company hereby grants to Holder the right to purchase
63,789 shares of the Company's common stock (the "Common Stock"), which the
Company represents equals 5% of the capital stock of the Company on the date
hereof, calculated on a fully diluted basis after exercise ("Base Amount"),
provided that in the event that the indebtedness evidenced by the Note is
outstanding on the following dates, the Base Amount shall be increased to the
corresponding number set forth below:
1
Date Base Amount
------------------------------ -----------------------------------------
November 8, 1999 70,540 shares of Common Stock, which
the Company represents equals 5.5% of
the capital stock of the Company on
the date hereof calculated on a fully
diluted basis after exercise.
November 8, 2000 77,362 shares of Common Stock, which
the Company represents equals 6% of the
capital stock of the Company on the
date hereof calculated on a fully
diluted basis after exercise.
The shares of Common Stock issuable upon exercise of this Warrant are
hereinafter referred to as the "Shares." This Warrant shall be exercisable at
any time and from time to time from the date hereof until December 31, 2001. For
purposes of this Warrant the term "fully diluted basis" shall be determined in
accordance with generally accepted accounting principles as of the date hereof.
2. Exercise Price. The exercise price (the "Exercise Price") per share
--------------
for which all or any of the Shares may be purchased pursuant to the terms of
this Warrant shall be One Cent ($.01).
3. Exercise. This Warrant may be exercised by the Holder hereof (but only
--------
on the conditions hereinafter set forth) as to all or any increment hereof, upon
delivery of written notice of intent to exercise to the Company at the following
address: 205 Second Street N.W., Jones Building, Cleveland, TN 37364-1015, or
such other address as the Company shall designate in a written notice to the
Holder hereof, together with this Warrant and payment to the Company of the
aggregate Exercise Price of the Shares so purchased. The Exercise Price shall be
payable, at the option of the Holder, (i) by certified or bank check, (ii) by
the surrender of the Note or portion thereof having an outstanding principal
balance equal to the aggregate Exercise Price or (iii) by the surrender of a
portion of this Warrant having a fair market value equal to the aggregate
Exercise Price. Upon exercise of this Warrant as aforesaid, the Company shall as
promptly as practicable, and in any event within fifteen (15) days thereafter,
execute and deliver to the Holder of this Warrant a certificate or certificates
for the total number of whole Shares for which this Warrant is being exercised
in such names and denominations as are requested by such Holder. If this Warrant
shall be exercised with respect to less than all of the Shares, the Holder shall
be entitled to receive a new Warrant covering the number of Shares in respect of
which this Warrant shall not have been exercised, which new Warrant shall in all
other respects be identical to this Warrant. The Company covenants and agrees
that it will pay when due any and all state and federal issue taxes which may be
payable in respect of the issuance of this Warrant or the issuance of any Shares
upon exercise of this Warrant.
2
4. Covenants and Conditions. The above provisions are subject to the
------------------------
following:
(a) Neither this Warrant nor the Shares have been registered under
the Securities Act of 1933, as amended ("Securities Act") or any state
securities laws ("Blue Sky Laws"). This Warrant has been acquired for
investment purposes and not with a view to distribution or resale and may
not be pledged, hypothecated, sold, made subject to a security interest, or
otherwise transferred without (i) an effective registration statement for
such Warrant under the Securities Act and such applicable Blue Sky Laws, or
(ii) an opinion of counsel, which opinion and counsel shall be reasonably
satisfactory to the Company and its counsel, that registration is not
required under the Securities Act or under any applicable Blue Sky Laws
(the Company hereby acknowledges that Bass, Berry & Sims, PLC is acceptable
counsel). Transfer of the shares issued upon the exercise of this Warrant
shall be restricted in the same manner and to the same extent as the
Warrant and the certificates representing such Shares shall bear
substantially the following legend:
THE SHARES OF COMMON STOCK REPRESENTED BY THIS CERTIFICATE
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE "ACT"), OR ANY APPLICABLE STATE SECURITIES
LAW AND MAY NOT BE TRANSFERRED UNTIL (I) A REGISTRATION
STATEMENT UNDER THE ACT OR SUCH APPLICABLE STATE SECURITIES
LAWS SHALL HAVE BECOME EFFECTIVE WITH REGARD THERETO, OR
(II) IN THE OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY,
REGISTRATION UNDER SUCH SECURITIES ACTS OR SUCH APPLICABLE
STATE SECURITIES LAWS IS NOT REQUIRED IN CONNECTION WITH
SUCH PROPOSED TRANSFER.
The Holder hereof and the Company agree to execute such other documents and
instruments as counsel for the Company reasonably deems necessary to effect
the compliance of the issuance of this Warrant and any shares of Common
Stock issued upon exercise hereof with applicable federal and state
securities laws.
(b) The Company covenants and agrees that all Shares which may be
issued upon exercise of this Warrant will, upon issuance and payment
therefor, be legally and validly issued and outstanding, fully paid and
nonassessable, free from all taxes, liens, charges and preemptive rights,
if any, with respect thereto or to the issuance thereof. The Company shall
at all times reserve and keep available for issuance upon the exercise of
this Warrant such number of authorized but unissued shares of Common Stock
as will be sufficient to permit the exercise in full of this Warrant.
3
(c) In the event that the Company sells shares of the Company's
capital stock at a price below the fair market value of such shares, the
number of shares of Common Stock issuable upon exercise of this Warrant
shall be equal to the product obtained by multiplying the number of shares
then issuable pursuant to this Warrant prior to such sale by a fraction,
the numerator of which shall be the product of (x) the total number of
shares of Common Stock outstanding on a fully diluted basis immediately
after such issuance or sale, multiplied by (y) the fair market value of a
share of Common Stock immediately prior to such issuance or sale and the
denominator of which shall be the sum of (i) the number of shares of Common
Stock outstanding on a fully diluted basis immediately prior to such
issuance or sale multiplied by the fair market value of a share of Common
Stock immediately prior to such issuance or sale, plus (ii) the aggregate
amount of the consideration received by the Company upon such issuance or
sale (as illustrated on Schedule I hereto).
5. Transfer of Warrant. Subject to the provisions of Section 4 hereof,
-------------------
this Warrant may be transferred, in whole or in part, to any person or business
entity, by presentation of the Warrant to the Company with written instructions
for such transfer. Upon such presentation for transfer, the Company shall
promptly execute and deliver a new Warrant or Warrants in the form hereof in
the name of the assignee or assignees and in the denominations specified in such
instructions. The Company shall pay all expenses incurred by it in connection
with the preparation, issuance and delivery of Warrants under this Section.
6. Warrant Holder Not Shareholder; Rights Offering; Preemptive Rights;
-------------------------------------------------------------------
Preference Rights. Except as otherwise provided herein, this Warrant does not
- -----------------
confer upon the Holder, as such, any right whatsoever as a shareholder of the
Company. Notwithstanding the foregoing, if the Company should offer to all of
the Company's shareholders the right to purchase any securities of the Company,
then all shares of Common Stock that are subject to this Warrant shall be deemed
to be outstanding and owned by the Holder and the Holder shall be entitled to
participate in such rights offering. The Company shall not grant any preemptive
rights with respect to any of its capital stock without the prior written
consent of the Holder. The Company shall not issue any securities which entitle
the holder thereof to obtain any preference over holders of Common Stock upon
the dissolution, liquidation, winding-up, sale, merger, or reorganization of the
Company without the prior written consent of the Holder.
7. Observation Rights. The Holder of this Warrant shall (a) receive
------------------
notice of and be entitled to attend or may send a representative to attend all
meetings of the Company's Board of Directors in a non-voting observation
capacity, (b) receive copies of all notices, packages and documents provided to
members of the Company's Board of Directors for each board of directors meeting,
and (c) receive copies of all actions taken by written consent by the Company's
Board of Directors, from the date hereof until such rime as the indebtedness
evidenced by the Note has been paid in full. Holder agrees to hold as
confidential information received pursuant to this Section 7, to the same extent
as if Holder were a director of the Company.
4
8. Adjustment Upon Changes in Stock.
--------------------------------
(a) If all or any portion of this Warrant shall be exercised
subsequent to any stock split, stock dividend, recapitalization,
combination of shares of the Company, or other similar event, occurring
after the date hereof, then the Holder exercising this Warrant shall
receive, for the aggregate price paid upon such exercise, the aggregate
number and class of shares which such Holder would have received if this
Warrant had been exercised immediately prior to such stock split, stock
dividend, recapitalization, combination of shares, or other similar event.
If any adjustment under this Section 8(a) would create a fractional share
of Common Stock or a right to acquire a fractional share of Common Stock,
such fractional share shall be disregarded and the number of shares subject
to this Warrant shall be the next higher number of shares, rounding all
fractions upward. Whenever there shall be an adjustment pursuant to this
Section 8(a), the Company shall forthwith notify the Holder or Holders of
this Warrant of such adjustment, setting forth in reasonable detail the
event requiring the adjustment and the method by which such adjustment was
calculated.
(b) If all or any portion of this Warrant shall be exercised
subsequent to any merger, consolidation, exchange of shares, separation,
reorganization or liquidation of the Company, or other similar event,
occurring after the date hereof, as a result of which shares of Common
Stock shall be changed into the same or a different number of shares of the
same or another class or classes of securities of the Company or another
entity or other property or assets of the Company or another entity or
cash, then the Holder exercising this Warrant shall receive, for the
aggregate price paid upon such exercise, the aggregate number and class of
shares, other property or assets or cash which such Holder would have
received if this Warrant had been exercised immediately prior to such
merger, consolidation, exchange of shares, separation, reorganization or
liquidation, or other similar event. If any adjustment under this
Section 8(b) would create a fractional share of Common Stock or any other
security or a right to acquire a fractional share of Common Stock or any
other security, such fractional share shall be disregarded and the number
of shares subject to this Warrant shall be the next higher number of
shares, rounding all fractions upward. Whenever there shall be an
adjustment pursuant to this Section 8(b), the Company shall forthwith
notify the Holder or Holders of this Warrant of such adjustment, setting
forth in reasonable detail the event requiring the adjustment and the
method by which such adjustment was calculated. The provisions of this
paragraph shall similarly apply to successive mergers, consolidations,
exchanges of shares, separations, reorganizations or liquidations, or other
similar events. Upon any merger, consolidation, exchange of shares,
separation, reorganization, liquidation or other similar event hereinabove
referred to, this Warrant shall continue in full force and effect and the
terms hereof shall be applicable to the shares of stock and other
securities, property, assets and cash receivable upon the exercise of this
Warrant after the consummation of such merger, consolidation, exchange of
shares, separation, reorganization, liquidation or other similar event, as
the case may be.
5
9. Put Agreement.
-------------
(a) The Company hereby irrevocably grants and issues to Holder the
right and option to sell to the Company (the "Put") this Warrant for a
period of 30 days immediately prior to the expiration thereof, at a
purchase price (the "Purchase Price") equal to the excess of the Fair
Market Value (as hereinafter defined) of the shares of Common Stock then
issuable to Holder upon exercise of this Warrant over the aggregate
exercise price payable upon exercise of this Warrant.
(b) The Company shall pay to the Holder, in cash or certified or
cashier's check, the Purchase Price in exchange for the delivery to the
Company of this Warrant within thirty (30) days of the receipt of written
notice, addressed as set forth in Section 3 hereto, from the Holder of its
intention to exercise the Put.
(c) The Fair Market Value of the shares of Common Stock of the
Company issuable pursuant to this Warrant shall be the average trading
price of shares of Common Stock during the week preceding the date of
purchase or if the Common Stock is not publicly traded at such time shall
be determined as follows:
(i) The Company and the Holder shall each appoint an
independent, experienced appraiser who is a member of a recognized
professional association of business appraisers or of an investment
banking firm. The two appraisers shall determine the value of the
shares of Common Stock which would be issued upon the exercise of the
Warrant, taking into consideration that such shares would constitute a
minority interest, and would lack liquidity, and further assuming that
the sale would be between a willing buyer and a willing seller, both
of whom have full knowledge of the financial and other affairs of the
Company, and neither of whom is under any compulsion to sell or to
buy.
(ii) If the highest of the two appraisals is not more than 10%
more than the lowest of the appraisals, the Fair Market Value shall be
the average of the two appraisals. If the highest of the two
appraisals is 10% or more higher than the lowest of the two
appraisals, then a third appraiser shall be appointed by the two
appraisers, and if they cannot agree on a third appraiser, the
American Arbitration Association shall appoint the third appraiser.
The third appraiser, regardless of who appoints him or her, shall have
the same qualifications as the first two appraisers.
(iii) The Fair Market Value after the appointment of the third
appraiser shall be the arithmetic mean of the three appraisals.
(iv) The fees and expenses of the appraisers shall be paid
one-half by the Company and one-half by the Holder.
6
(v) The Put shall terminate upon the Company's successful
completion of a bona fide underwritten public offering of its capital
stock with net proceeds to the Company of at least $10,000,000
("IPO"), or upon the conversion of this Warrant into the right to
receive a publicly traded security of an entity having an aggregate
market value of at least $30,000,000.
10. Registration.
------------
(a) The Company and the holders of the Shares agree that if at any
time after the date hereof the Company shall propose to file a registration
statement with respect to any of its Common Stock on a form suitable for a
secondary offering, it will give notice in writing to such effect to the
registered holder(s) of the Shares at least thirty (30) days prior to such
filing, and, at the written request of any such registered holder, made
within ten (10) days after the receipt of such notice, will include therein
at the Company's cost and expense (including the fees and expenses of
counsel to such holder(s), but excluding underwriting discounts,
commissions and filing fees attributable to the Shares included therein)
such of the Shares as such holder(s) shall request; provided, however, that
if the offering being registered by the Company is underwritten, the Shares
included in such registration shall be included in such underwriting, and
if the representative of the underwriters certifies in writing that the
inclusion therein of the Shares would materially and adversely affect the
sale of the securities to be sold by the Company thereunder, then the
Company shall be required to include in the offering and such underwriting
only that number of securities, including the Shares, which the
underwriters determine in their sole discretion will not jeopardize the
success of the offering (the securities so included to be apportioned pro
rata among all selling shareholders according to the total amount of
securities entitled to be included therein owned by each selling
shareholder, but in no event shall the total number of Shares included in
the offering be less than the number of securities included in the offering
by any other single selling shareholder) and any Shares not so included
shall not be registered in such registration statement.
(b) Whenever the Company undertakes to effect the registration of
any of the Shares, the Company shall, as expeditiously as reasonably
possible:
(i) Prepare and file with the Securities and Exchange
Commission (the "Commission") a registration statement covering such
Shares and use its best efforts to cause such registration statement
to be declared effective by the Commission as expeditiously as
possible and to keep such registration effective until the earlier of
(A) the date when all Shares covered by the registration statement
have been sold or (B) ninety (90) days from the effective dare of the
registration statement; provided, that before filing a registration
statement or prospectus or any amendment or supplements thereto, the
Company will furnish to each Holder of Shares covered by such
registration statement and the underwriters, if any, copies of all
such documents proposed to be filed (excluding exhibits, unless any
such person shall specifically request exhibits),
7
which documents will be subject to the review of such Holders and
underwriters, and the Company will not file such registration statement or
any amendment thereto or any prospectus or any supplement thereto
(including any documents incorporated by reference therein) with the
Commission if (A) the underwriters, if any, shall reasonably object to such
filing or (B) if information in such registration statement or prospectus
concerning a particular selling Holder has changed and such Holder or the
underwriters, if any, shall reasonably object.
(ii) Prepare and file with the Commission such amendments and
post-effective amendments to such registration statement as may be
necessary to keep such registration statement effective during the period
referred to in Section 1O(b)(i) and to comply with the provisions of the
Securities Act with respect to the disposition of all securities covered by
such registration statement, and cause the prospectus to be supplemented by
any required prospectus supplement, and as so supplemented to be filed with
the Commission pursuant to Rule 424 under the Securities Act.
(iii) Furnish to the selling Holder(s) such numbers of copies of such
registration statement, each amendment thereto, the prospectus included in
such registration statement (including each preliminary prospectus), each
supplement thereto and such other documents as they may reasonably request
in order to facilitate the disposition of the Shares owned by them.
(iv) Use its best efforts to register and qualify under such other
securities laws of such jurisdictions as shall be reasonably requested by
any selling Holder and do any and all other acts and things which may be
reasonably necessary or advisable to enable such selling Holder to
consummate the disposition of the Shares owned by such Holder, in such
jurisdictions; provided, however, that the Company shall not be required in
connection therewith or as a condition thereto to qualify to transact
business or to file a general consent to service of process in any such
states or jurisdictions.
(v) Promptly notify each selling Holder of the happening of any event
as a result of which the prospectus included in such registration statement
contains an untrue statement of a material fact or omits any fact necessary
to make the statements therein not misleading and, at the request of any
such Holder, the Company will prepare a supplement or amendment to such
prospectus so that, as thereafter delivered to the purchasers of such
Shares, such prospectus will not contain an untrue statement of a material
fact or omit to state any fact necessary to make the statements therein not
misleading.
(vi) Provide a transfer agent and registrar for all such Shares not
later than the effective date of such registration statement.
8
(vii) Enter into such customary agreements (including underwriting
agreements in customary form for a primary offering) and take all such
other actions as the underwriters, if any, reasonably request in order to
expedite or facilitate the disposition of such Shares (including, without
limitation, effecting a stock split or a combination of shares).
(viii) Make available for inspection by any selling Holder or any
underwriter participating in any disposition pursuant to such registration
statement and any attorney, accountant or other agent retained by any such
selling Holder or underwriter, all financial and other records, pertinent
corporate documents and properties of the Company, and cause the officers,
directors, employees and independent accountants of the Company to supply
all information reasonably requested by any such seller, underwriter,
attorney, accountant or agent in connection with such registration
statement.
(ix) Promptly notify the selling Holder(s) and the underwriters, if
any, of the following events and (if requested by any such person) confirm
such notification in writing: (A) the filing of the prospectus or any
prospectus supplement and the registration statement and any amendment or
post-effective amendment thereto and, with respect to the registration
statement or any post-effective amendment thereto, the declaration of the
effectiveness of such documents, (B) any requests by the Commission for
amendments or supplements to the registration statement or the prospectus
or for additional information, (C) the issuance or threat of issuance by
the Commission of any stop order suspending the effectiveness of the
registration statement or the initiation of any proceedings for that
purpose, and (D) the receipt by the Company of any notification with
respect to the suspension of the qualification of the Shares for sale in
any jurisdiction or the initiation or threat of initiation of any
proceeding for such purposes.
(x) Make every reasonable effort to prevent the entry of any order
suspending the effectiveness of the registration statement and to obtain at
the earliest possible moment the withdrawal of any such order, if entered.
(xi) Cooperate with the selling Holder(s) and the underwriters, if
any, to facilitate the timely preparation and delivery of certificates
representing the Shares to be sold and not bearing any restrictive legends,
and enable such Shares to be in such lots and registered in such names as
the underwriters may request at least two (2) business days prior to any
delivery of the Shares to the underwriters.
(xii) Provide a CUSIP number for all the Shares not later than the
effective date of the registration statement.
9
(xiii) Prior to the effectiveness of the registration statement and any
post-effective amendment thereto and at each closing of an underwritten
offering, (A) make such representations and warranties to the selling
Holder(s) and the underwriters, if any, with respect to the Shares and the
registration statement as are customarily made by issuers in primary
underwritten offerings; (B) use its best efforts to obtain "cold comfort"
letters and updates thereof from the Company's independent certified public
accountants addressed to the selling Holders and the underwriters, if any,
such letters to be in customary form and covering matters of the type
customarily covered in "cold comfort" letters by underwriters in connection
with primary underwritten offerings; (C) deliver such documents and
certificates as may be reasonably requested (1) by the holders of a
majority of the Shares being sold, and (2) by the underwriters, if any, to
evidence compliance with clause (A) above and with any customary conditions
contained in the underwriting agreement or other agreement entered into by
the Company; and (D) obtain opinions of counsel to the Company and updates
thereof (which counsel and which opinions shall be reasonably satisfactory
to the underwriters, if any), covering the matters customarily covered in
opinions requested in underwritten offerings and such other matters as may
be reasonably requested by the selling Holders and underwriters or their
counsel. Such counsel shall also state that no facts have come to the
attention of such counsel which cause them to believe that such
registration statement, the prospectus contained therein, or any amendment
or supplement thereto, as of their respective effective or issue dates,
contains any untrue statement of any material fact or omits to state any
material fact necessary to make the statements therein not misleading
(except that no statement need be made with respect to any financial
statements, notes thereto or other financial data or other expertized
material contained therein). If for any reason the Company's counsel is
unable to give such opinion, the Company shall so notify the Holders of the
Shares and shall use its best efforts to remove expeditiously all
impediments to the rendering of such opinion.
(xiv) Otherwise use its best efforts to comply with all applicable
rules and regulations of the Commission, and make generally available to
its security holders earnings statements satisfying the provisions of
Section 11(a) of the Securities Act, no later than forty-five (45) days
after the end of any twelve-month period (or ninety (90) days, if such
period is a fiscal year) (A) commencing at the end of any fiscal quarter in
which the Shares are sold to underwriters in a firm or best efforts
underwritten offering, or (B) if not sold to underwriters in such an
offering, beginning with the first month of the first fiscal quarter of the
Company commencing after the effective date of the registration statement,
which statements shall cover such twelve-month periods.
10
(c) After the date hereof the Company shall not grant to any holder
of securities of the Company any registration rights which have a priority
greater than or equal to those granted to Holders pursuant to this Warrant
without the prior written consent of the Holder(s).
(d) The Company's obligations under Section 10(a) above with respect
to each holder of Shares are expressly conditioned upon such holder's
furnishing to the Company in writing such information concerning such
holder and the terms of such holder's proposed offering as the Company
shall reasonably request for inclusion in the registration statement and in
the event that the offering is underwritten, upon such Holder executing an
underwriting agreement in customary form. If any registration statement
including any of the Shares is filed, then the Company shall indemnify each
holder thereof (and each underwriter for such holder and each person, if
any, who controls such underwriter within the meaning of the Securities
Act) from any loss, claim, damage or liability arising out of, based upon
or in any way relating to any untrue statement of a material fact contained
in such registration statement or any omission to state therein a material
fact required to be stated therein or necessary to make the statements
therein not misleading, except for any such statement or omission based on
information furnished in writing by such holder of the Shares expressly for
use in connection with such registration statement; and such holder shall
indemnify the Company (and each of its officers and directors who has
signed such registration statement, each director, each person, if any, who
controls the Company within the meaning of the Securities Act, each
underwriter for the Company and each person, if any, who controls such
underwriter within the meaning of the Securities Act) and each other such
holder against any loss, claim, damage or liability arising from any such
statement or omission which was made in reliance upon information furnished
in writing to the Company by such holder of the Shares expressly for use in
connection with such registration statement.
(e) For purposes of this Section 10, all of the Shares shall be
deemed to be issued and outstanding.
11. Certain Notices. In case at any time the Company shall propose to:
---------------
(a) declare any cash dividend upon its Common Stock;
(b) declare any dividend upon its Common Stock payable in stock or
make any special dividend or other distribution to the holders of its
Common Stock;
(c) offer for subscription to the holders of any of its Common Stock
any additional shares of stock in any class or other rights;
(d) reorganize, or reclassify the capital stock of the Company, or
consolidate, merge or otherwise combine with, or sell all or substantially
all of its assets to, another corporation; or
11
(e) voluntarily or involuntarily dissolve, liquidate or wind up the
affairs of the Company;
then, in any one or more of said cases, the Company shall give to the
Holder of the Warrant, by certified or registered mail, (i) at least thirty
(30) days' prior written notice of the date on which the books of the
Company shall close or a record shall be taken for such dividend,
distribution or subscription rights or for determining rights to vote in
respect of any such reorganization, reclassification, consolidation,
merger, sale, dissolution, liquidation or winding up, and (ii) in the case
of such reorganization, reclassification, consolidation, merger, sale,
dissolution, liquidation or winding up, at least twenty (20) days' prior
written notice of the date when the same shall take place. Any notice
required by clause (i) shall also specify, in the case of any such
dividend, distribution or subscription rights, the date on which the
holders of Common Stock shall be entitled thereto, and any notice required
by clause (ii) shall specify the date on which the holders of Common Stock
shall be entitled to exchange their Common Stock for securities or other
property deliverable upon such reorganization, reclassification,
consolidation, merger, sale, dissolution, liquidation or winding up, as the
case may be.
12. Rights of Co-Sale.
-----------------
(a) Co-Sale Right. Neither W. Allan Jones, Jr. nor Janie P. Jones
-------------
(collectively, "Selling Shareholder") shall enter into any transaction that
would result in the sale by him or her of any Common Stock now or hereafter
owned by him or her other than transfers to family members, transfers to
trusts for the benefit of family members which agree to be bound by the
terms of this paragraph 12, or transfers to affiliates of a Selling
Shareholder, which agree to be bound by the terms of this paragraph 12,
unless prior to such sale the Selling Shareholder shall give notice to
Holder of his or her intention to effect such sale in order that Holder may
exercise its rights under this Section 12 as hereinafter described. Such
notice shall set forth (i) the number of shares to be sold by the Selling
Shareholder, (ii) the principal terms of the sale, including the price at
which the shares are intended to be sold, and (iii) an offer by the Selling
Shareholder to use his or her best efforts to cause to be included with the
shares to be sold by him or her in the sale, on a pro rata basis and on the
same terms and conditions, the Shares issuable or issued to Holder pursuant
this Warrant.
(b) Rejection of Co-Sale Offer. If Holder has not accepted such
--------------------------
offer in writing within a period of ten (10) days from the date of receipt
of the notice, then the Selling Shareholder shall thereafter be free for a
period of ninety (90) days to sell the number of shares specified in such
notice, at a price no greater than the price set forth in such notice and
on otherwise no more favorable terms to the Selling Shareholder than as set
forth in such notice, without any further obligation to Holder in
connection with such sale. In the event that the Selling Shareholder fails
to consummate such sale within such ninety-day period, the shares specified
in such notice shall continue to be subject to this Section.
12
(c) Acceptance of Co-Sale Offer. If Holder accepts such offer in
---------------------------
writing within such ten (10) day period, such acceptance shall be
irrevocable unless the Selling Shareholder shall be unable to cause to be
included in his sale the number of Shares of stock held by Holder and set
forth in the written acceptance. In that event, the Selling Shareholder and
Holder shall participate in the sale pro rata based on their respective
ownership interests in the Company.
13. Stock Option Plan. Notwithstanding anything contained herein to the
-----------------
contrary, the Company may establish an employee stock incentive plan pursuant to
which stock grants or options to purchase a number of shares of the Company's
common stock not to exceed 15% of the shares outstanding may be granted to the
Company's employees; provided, however, that the exercise price per share of
capital stock under each option granted under the option plan shall in no event
be less than 100% of the fair market value of the capital stock on the date such
option is granted.
14. Equity Participation. This Warrant is issued in connection with the
--------------------
Loan Agreement. It is intended that this Warrant constitute an equity
participation under and pursuant to T.C.A. (S)47-24-101, et seq. and that such
------
equity participation be permitted under said statutes and not constitute
interest on the Note. If under any circumstances whatsoever, fulfillment of any
obligation of this Warrant, the Loan Agreement, or any other agreement or
document executed in connection with the Loan Agreement, shall violate the
lawful limit of any applicable usury statute or any other applicable law with
regard to obligations of like character and amount, then the obligation to be
fulfilled shall be reduced to such lawful limit, such that in no event shall
there occur, under this Warrant, the Loan Agreement, or any other document or
instrument executed in connection with the Loan Agreement, any violation of such
lawful limit, but such obligation shall be fulfilled to the lawful limit. If any
sum is collected in excess of the lawful limit, such excess shall be applied to
reduce the principal amount of the Note.
15. Governing Law. This warrant shall be governed by the laws of the State
-------------
of Tennessee applicable to agreements made entirely within the State.
[Space Intentionally Left Blank]
13
IN WITNESS WHEREOF, the parties hereto have set their hands as of the date
first above written.
CHECK INTO CASH, INC., a Delaware
corporation
By: /s/ Fred Krosner
-------------------------------
Title: V.P.
----------------------------
SIRROM CAPITAL CORPORATION, a
Tennessee corporation
By: /s/ John C. Harrison
-------------------------------
Title: V.P.
----------------------------
The undersigned shareholders join in the execution of this Warrant for the
purposes of acknowledging and agreeing to be bound by Section 12 hereof.
/s/ W. Allan Jones, Jr.
----------------------------------
W. Allan Jones, Jr.
/s/ Janie P. Jones
----------------------------------
Janie P. Jones
14
SCHEDULE I
-----------
Illustration of Anti-Dilution Provision
---------------------------------------
Assumptions:
Outstanding Common Stock: 100,000 Shares
(fully diluted)
Fair Market Value per share: $10
New Issuance: 20,000 Shares
New Issue Price (all in) $8
Debt Warrant: 10,000 Shares
FMV of Warrant Shares: $100,000 ($10 x 10,000 shares)
Formula:
10,000 x (120,000 x $10)
-------------------------------
(100,000 x $10) + (20,000 x $8)
10,000 x 1,200,000
---------
1,160,000
10,000 x 1.0345
Adjusted No. of Warrant Shares: 10,344.83
Percentage of Outstanding: 10,344.83 = 0.0862
---------
120,000
FMV of Adj. Warrant Shares: .0862 x 1,160,000 = $100,000
15
EX-10.4.2
6
STOCK PURCHASE WARRANT, DATED JUNE 26, 1998
EXHIBIT 10.4.2
THE SHARES OF COMMON STOCK REPRESENTED BY THIS WARRANT HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR ANY APPLICABLE
STATE SECURITIES LAW AND MAY NOT BE TRANSFERRED UNTIL (I) A REGISTRATION
STATEMENT UNDER THE ACT OR SUCH APPLICABLE STATE SECURITIES LAWS SHALL HAVE
BECOME EFFECTIVE WITH REGARD THERETO, OR (II) IN THE OPINION OF COUNSEL
ACCEPTABLE TO THE COMPANY, REGISTRATION UNDER SUCH SECURITIES ACTS OR SUCH
APPLICABLE STATE SECURITIES LAWS IS NOT REQUIRED IN CONNECTION WITH SUCH
PROPOSED TRANSFER.
STOCK PURCHASE WARRANT
----------------------
This Stock Purchase Warrant (the "Warrant") is issued this 26th day of
June, 1998, by CHECK INTO CASH, INC., a Delaware corporation (the
"Company"), to SIRROM CAPITAL CORPORATION, a Tennessee corporation (SIRROM
CAPITAL CORPORATION and any subsequent assignee or transferee hereof are
hereinafter referred to collectively as "Holder" or "Holders").
AGREEMENT:
1. Issuance of Warrant; Term.
--------------------------
(a) For and in consideration of SIRROM CAPITAL CORPORATION making
a loan to the Company in an amount of up to Three Million Five Hundred
Thousand and no/100ths Dollars ($3,500,000.00) (the "Loan") pursuant to
a secured promissory note of even date herewith (the "Note") and a
related Amended and Restated Loan Agreement dated February 28, 1997 (as
previously or hereafter amended and as amended on the date hereof, the
"Loan Agreement"), and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Company
hereby grants to Holder the right to purchase 723 shares (the "Base
Amount") of the Company's common stock (the "Common Stock"), which the
Company represents to equal three-fourteenths (3/l4ths) of 0.25% of the
capital stock of the Company on the date hereof, calculated on a fully
diluted basis after exercise.
(b) The Base Amount as set forth in Section 1(a) above is based on
the Company borrowing an initial amount of $750,000 under the Note (the
"Initial Draw"). If the Company borrows more than the Initial Draw
under the Note, the Base Amount will increase automatically at the time
of each advance on the following basis: With respect to each additional
$250,000 that is borrowed by the Company under the Note in excess of
the Initial Draw (regardless of whether Borrower has prepaid any of the
principal amount of the Note), the Company hereby grants to the Holder
the right to purchase an additional 241 shares of the Common Stock
which the Company represents to equal one-fourteenth (1/14th) of 0.25%
of the capital stock of the Company on the date hereof, calculated on a
fully diluted basis after exercise. Such adjustments shall occur
automatically
without further action by the parties and the Base Amount shall
increase in accordance with such adjustments. By way of illustration,
if the Company borrows an additional $2,000,000 under the Note, the
Holder shall have the right to purchase 1933 shares which represents
four-sevenths (4/7ths) of 0.25% of the capital stock of the Company on
the date hereof calculated on a fully diluted basis after exercise.
(c) The Holder shall not have the right to exercise this Warrant
prior to October 15, 1998. If the Loan is paid in full prior to October
15, 1998, the Holder shall have no right to purchase any shares of the
Common Stock hereunder.
(d) Notwithstanding the foregoing, regardless of the amount of the
indebtedness evidenced by the Note which is outstanding on January 21,
1999 and regardless of the aggregate amount of the Loan which has
previously been advanced to the Company, in the event that any portion
of the indebtedness evidenced by the Note is outstanding on January 21,
1999, the Base Amount shall be 3,383 shares which the Company
represents to equal 0.25% of the capital stock of the Company on the
date hereof, calculated on a fully diluted basis after exercise.
(e) Notwithstanding the foregoing, in the event any portion of the
indebtedness evidenced by the Note is outstanding on June 26, 1999, the
Base Amount shall increase automatically, without further action by the
parties, to 20,553 shares of the Common Stock which the Company
represents to equal 1.5% of the capital stock of the Company on the
date hereof, calculated on a fully diluted basis after exercise. In
such event, the Company hereby grants to the Holder the right to
purchase such increased Base Amount.
(f) Notwithstanding the foregoing, in the event any portion of the
indebtedness evidenced by the Note is outstanding on June 26, 2001, the
Base Amount shall increase automatically, without further action by the
parties, to 24,039 shares of the Common Stock which the Company
represents to equal 1.75% the capital stock of the Company on the date
hereof, calculated on a fully diluted basis after exercise. In such
event, the Company hereby grants to the Holder the right to purchase
such increased Base Amount.
(g) The shares of Common Stock issuable upon exercise of this
Warrant are hereinafter referred to as the "Shares." This Warrant shall
be exercisable at any time and from time to time from the date hereof
until January 31, 2001. For purposes of this Warrant the term "fully
diluted basis" shall be determined in accordance with generally
accepted accounting principles as of the date hereof.
2
2. Exercise Price. The exercise price (the "Exercise Price") per share
--------------
for which all or any of the Shares may be purchased pursuant to the terms of
this Warrant shall be One Cent ($.01).
3. Exercise. This Warrant may be exercised by the Holder hereof (but
--------
only on the conditions hereinafter set forth) in whole or in part, upon delivery
of written notice of intent to exercise to the Company in the manner and at the
address set forth in Section 14 hereof, together with this Warrant and payment
to the Company of the aggregate Exercise Price of the Shares so purchased. The
Exercise Price shall be payable, at the option of the Holder, (i) by certified
or bank check, (ii) by the surrender of the Note or portion thereof having an
outstanding principal balance equal to the aggregate Exercise Price or (iii) by
the surrender of a portion of this Warrant where the Shares subject to the
portion of this Warrant that is surrendered have a fair market value equal to
the aggregate Exercise Price. In the absence of an established public market for
the Common Stock, fair market value shall be established by the Company's board
of directors in a commercially reasonable manner. Upon exercise of this Warrant
as aforesaid, the Company shall as promptly as practicable, and in any event
within fifteen (15) days thereafter, execute and deliver to the Holder of this
Warrant a certificate or certificates for the total number of whole Shares for
which this Warrant is being exercised in such names and denominations as are
requested by such Holder. If this Warrant shall be exercised with respect to
less than all of the Shares, the Holder shall be entitled to receive a new
Warrant covering the number of Shares in respect of which this Warrant shall not
have been exercised, which new Warrant shall in all other respects be identical
to this Warrant. The Company covenants and agrees that it will pay when due any
and all state and federal issue taxes which may be payable in respect of the
issuance of this Warrant or the issuance of any Shares upon exercise of this
Warrant.
4. Covenants and Conditions. The above provisions are subject to the
------------------------
following:
(a) Neither this Warrant nor the Shares have been registered under
the Securities Act of 1933, as amended ("Securities Act") or any state
securities laws ("Blue Sky Laws"). This Warrant has been acquired for
investment purposes and not with a view to distribution or resale and
may not be sold or otherwise transferred without (i) an effective
registration statement for such Warrant under the Securities Act and
such applicable Blue Sky Laws, or (ii) an opinion of counsel, which
opinion and counsel shall be reasonably satisfactory to the Company and
its counsel, that registration is not required under the Securities Act
or under any applicable Blue Sky Laws (the Company hereby acknowledges
that Chambliss, Bahner & Stophel, P.C. is acceptable counsel).
Transfer of the Shares shall be
3
restricted in the same manner and to the same extent as the Warrant and
the certificates representing such Shares shall bear substantially the
following legend:
THE SHARES OF COMMON STOCK REPRESENTED BY THIS CERTIFICATE
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE "ACT"), OR ANY APPLICABLE STATE SECURITIES
LAW AND MAY NOT BE TRANSFERRED UNTIL (I) A REGISTRATION
STATEMENT UNDER THE ACT AND SUCH APPLICABLE STATE SECURITIES
LAWS SHALL HAVE BECOME EFFECTIVE WITH REGARD THERETO, OR
(II) IN THE OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY,
REGISTRATION UNDER SUCH SECURITIES ACTS AND SUCH APPLICABLE
STATE SECURITIES LAWS IS NOT REQUIRED IN CONNECTION WITH
SUCH PROPOSED TRANSFER.
The Holder hereof and the Company agree to execute such other documents
and instruments as counsel for the Company reasonably deems necessary
to effect the compliance of the issuance of this Warrant and any shares
of Common Stock issued upon exercise hereof with applicable federal and
state securities laws.
(b) The Company covenants and agrees that all Shares which may be
issued upon exercise of this Warrant will, upon issuance and payment
therefor, be legally and validly issued and outstanding, fully paid
and nonassessable, free from all taxes, liens, charges and preemptive
rights, if any, with respect thereto or to the issuance thereof. The
Company shall at all times reserve and keep available for issuance upon
the exercise of this Warrant such number of authorized but unissued
shares of Common Stock as will be sufficient to permit the exercise in
full of this Warrant.
(c) In the event that the Company sells shares of the Company's
capital stock at a price below the fair market value of such shares,
the number of shares of Common Stock issuable upon exercise of this
Warrant shall be equal to the product obtained by multiplying the
number of shares then issuable pursuant to this Warrant prior to such
sale by a fraction, the numerator of which shall be the product of (x)
the total number of shares of Common Stock outstanding on a fully
diluted basis immediately after such issuance or sale, multiplied by
(y) the fair market value of a share of Common Stock immediately prior
to such issuance or sale and the denominator of which shall be the sum
of (i) the number of shares of Common Stock outstanding on a fully
diluted basis immediately prior to such issuance or sale multiplied by
the fair market value of a share of Common Stock immediately prior to
such issuance or sale, plus (ii) the aggregate amount of the
consideration received by the Company upon such issuance or sale (as
illustrated on Schedule I hereto).
4
5. Transfer of Warrant. Subject to the provisions of Section 4 hereof,
-------------------
this Warrant may be transferred, in whole or in part, to any person or business
entity, by presentation of the Warrant to the Company with written instructions
for such transfer. Upon such presentation for transfer, the Company shall
promptly execute and deliver a new Warrant or Warrants in the form hereof in the
name of the assignee or assignees and in the denominations specified in such
instructions. The Company shall pay all expenses incurred by it in connection
with the preparation, issuance and delivery of Warrants under this Section.
6. Warrant Holder Not Shareholder; Rights Offering; Preemptive Rights;
-------------------------------------------------------------------
Preference Rights. Except as otherwise provided herein, this Warrant does not
- -----------------
confer upon the Holder, as such, any right whatsoever as a shareholder of the
Company. Notwithstanding the foregoing, if the Company should offer to all of
the Company's shareholders the right to purchase any securities of the Company,
then all shares of Common Stock that are subject to this Warrant shall be deemed
to be outstanding and owned by the Holder and the Holder shall be entitled to
participate in such rights offering. The Company shall not grant any preemptive
rights with respect to any of its capital stock without the prior written
consent of the Holder. The Company shall not issue any securities which entitle
the holder thereof to obtain any preference over holders of Common Stock upon
the dissolution, liquidation, winding-up, sale, merger, or reorganization of the
Company without the prior written consent of the Holder.
7. Observation Rights. The Holder of this Warrant shall (a) receive
------------------
notice of and be entitled to attend or may send a representative to attend all
meetings of the Company's Board of Directors in a non-voting observation
capacity, (b) receive copies of all notices, packages and documents provided to
members of the Company's Board of Directors for each board of directors meeting,
and (c) receive copies of all actions taken by written consent by the Company's
Board of Directors, from the date hereof until such time as the indebtedness
evidenced by the Note has been paid in full. Holder agrees to hold as
confidential information received pursuant to this Section 7, to the same extent
as if Holder were a director of the Company.
8. Adjustments Upon Changes in Stock.
---------------------------------
(a) If all or any portion of this Warrant shall be exercised
subsequent to any stock split, stock dividend, recapitalization,
combination of shares of the Company, or other similar event, occurring
after the date hereof, then the Holder exercising this Warrant shall
receive, for the aggregate price paid upon such exercise, the aggregate
number and class of shares which such Holder would have received if
this Warrant had been exercised immediately prior to such stock split,
stock dividend, recapitalization,
5
combination of shares, or other similar event. If any adjustment under
this Section 8(a) would create a fractional share of Common Stock or a
right to acquire a fractional share of Common Stock, such fractional
share shall be disregarded and the number of shares subject to this
Warrant shall be the next higher number of shares, rounding all
fractions upward. Whenever there shall be an adjustment pursuant to
this Section 8(a), the Company shall forthwith notify the Holder or
Holders of this Warrant of such adjustment, setting forth in reasonable
detail the event requiring the adjustment and the method by which such
adjustment was calculated.
(b) If all or any portion of this Warrant shall be exercised
subsequent to any merger, consolidation, exchange of shares,
separation, reorganization or liquidation of the Company, or other
similar event, occurring after the date hereof, as a result of which
shares of Common Stock shall be changed into the same or a different
number of shares of the same or another class or classes of securities
of the Company or another entity, or the holders of Common Stock are
entitled to receive cash or other property, then the Holder exercising
this Warrant shall receive, for the aggregate price paid upon such
exercise, the aggregate number and class of shares, cash or other
property which such Holder would have received if this Warrant had been
exercised immediately prior to such merger, consolidation, exchange of
shares, separation, reorganization or liquidation, or other similar
event. If any adjustment under this Section 8(b) would create a
fractional share of Common Stock or any other security or a right to
acquire a fractional share of Common Stock or any other security, such
fractional share shall be disregarded and the number of shares subject
to this Warrant shall be the next higher number of shares, rounding all
fractions upward. Whenever there shall be an adjustment pursuant to
this Section 8(b), the Company shall forthwith notify the Holder or
Holders of this Warrant of such adjustment, setting forth in reasonable
detail the event requiring the adjustment and the method by which such
adjustment was calculated. The provisions of this paragraph shall
similarly apply to successive mergers, consolidations, exchanges of
shares, separations, reorganizations or liquidations, or other similar
events. Upon any merger, consolidation, exchange of shares, separation,
reorganization, liquidation or other similar event hereinabove referred
to, this Warrant shall continue in full force and effect and the terms
hereof shall be applicable to the shares of stock and other securities,
property, assets and cash receivable upon the exercise of this Warrant
after the consummation of such merger, consolidation, exchange of
shares, separation, reorganization, liquidation or other similar event,
as the case may be.
6
9. Put Agreement.
-------------
(a) The Company hereby irrevocably grants and issues to Holder the
right and option to sell to the Company (the "Put") this Warrant for a
period of 60 days immediately prior to the expiration thereof, at a
purchase price (the "Purchase Price") equal to the excess of the Fair
Market Value (as hereinafter defined) of the shares of Common Stock
then issuable to Holder upon exercise of this Warrant over the
aggregate exercise price payable upon exercise of this Warrant.
(b) The Holder may exercise the Put by giving written notice to
the Company of such exercise in the manner and at the address of the
Company set forth in Section 14 hereof. The Company shall pay to the
Holder, in cash or certified or cashier's check, the Purchase Price in
exchange for the delivery to the Company of this Warrant within thirty
(30) days of the receipt of written notice, addressed as set forth in
Section 3 hereto, from the Holder of its intention to exercise the Put.
(c) For purposes of this Section 9, the Fair Market Value of the
shares of Common Stock of the Company issuable pursuant to this Warrant
shall be the average trading price of shares of Common Stock during the
week preceding the date of purchase or if the Common Stock is not
publicly traded at such time shall be determined as follows:
(i) The Company and the Holder shall each appoint an
independent, experienced appraiser who is a member of a recognized
professional association of business appraisers or of an investment
banking firm. The two appraisers shall determine the value of the
shares of Common Stock which would be issued upon the exercise of
the Warrant, taking into consideration that such shares would
constitute a minority interest, and would lack liquidity, and
further assuming that the sale would be between a willing buyer and
a willing seller, both of whom have full knowledge of the financial
and other affairs of the Company, and neither of whom is under any
compulsion to sell or to buy.
(ii) If the higher of the two appraisals is not greater than
10% more than the lower of the appraisals, the Fair Market Value
shall be the average of the two appraisals. If the higher of the
two appraisals is 10% or more higher than the lowest of the two
appraisals, then a third appraiser shall be appointed by the two
appraisers, and if they cannot agree on a third appraiser, the
American Arbitration Association shall appoint the third appraiser.
The third appraiser, regardless of who appoints him or her, shall
have the same qualifications as the first two appraisers.
7
(iii) The Fair Market Value after the appointment of the third
appraiser shall be the arithmetic mean of the three appraisals.
(iv) The fees and expenses of the appraisers shall be paid
one-half by the Company and one-half by the Holder.
(v) The Put shall terminate upon the Company's successful
completion of a bona fide underwritten public offering of its
capital stock with net proceeds to the Company of at least
$10,000,000 ("IPO"), or upon the conversion of this Warrant into
the right to receive a publicly traded security of an entity having
an aggregate market value of at least $30,000,000.
10. Registration.
------------
(a) The Company and the Holders of this Warrant and the Shares
agree that if at any time after the date hereof the Company shall
propose to file a registration statement with respect to any of its
Common Stock on a form suitable for a secondary offering, it will give
notice in writing to such effect to the Holder(s) at least thirty (30)
days prior to such filing, and, at the written request of any such
registered holder, made within ten (10) days after the receipt of such
notice, will include therein at the Company's cost and expense
(including the fees and expenses of counsel to such Holder(s), but
excluding underwriting discounts, commissions and filing fees
attributable to the Shares included therein) such of the Shares as such
Holder(s) shall request; provided, however, that if the offering being
registered by the Company is underwritten, the Shares included in such
registration shall be included in such underwriting, and if the
representative of the underwriters certifies in writing that the
inclusion therein of the Shares would materially and adversely affect
the sale of the securities to be sold by the Company thereunder, then
the Company shall be required to include in the offering and such
underwriting only that number of securities, including the Shares,
which the underwriters determine in their sole discretion will not
jeopardize the success of the offering (the securities so included to
be apportioned pro rata among all selling shareholders according to the
total amount of securities entitled to be included therein owned by
each selling shareholder, but in no event shall the total number of
Shares included in the offering be less than the number of securities
included in the offering by any other single selling shareholder) and
any Shares not so included shall not be registered in such registration
statement.
8
(b) Whenever the Company undertakes to effect the registration of
any of the Shares, the Company shall, as expeditiously as reasonably
possible:
(i) Prepare and file with the Securities and Exchange
Commission (the "Commission") a registration statement covering
such Shares and use its best efforts to cause such registration
statement to be declared effective by the Commission as
expeditiously as possible and to keep such registration effective
until the earlier of (A) the date when all Shares covered by the
registration statement have been sold or (B) one hundred eighty
(180) days from the effective date of the registration statement;
provided, that before filing a registration statement or prospectus
or any amendment or supplements thereto, the Company will furnish
to each Holder of Shares covered by such registration statement and
the underwriters, if any, copies of all such documents proposed to
be filed (excluding exhibits, unless any such person shall
specifically request exhibits), which documents will be subject to
the review of such Holders and underwriters, and the Company will
not file such registration statement or any amendment thereto or
any prospectus or any supplement thereto (including any documents
incorporated by reference therein) with the Commission if (A) the
underwriters, if any, shall reasonably object to such filing or (B)
if information in such registration statement or prospectus
concerning a particular selling Holder has changed and such Holder
or the underwriters, if any, shall reasonably object.
(ii) Prepare and file with the Commission such amendments and
post-effective amendments to such registration statement as may be
necessary to keep such registration statement effective during the
period referred to in Section 10(b) (i) and to comply with the
provisions of the Securities Act with respect to the disposition of
all securities covered by such registration statement, and cause
the prospectus to be supplemented by any required prospectus
supplement, and as so supplemented to be filed with the Commission
pursuant to Rule 424 under the Securities Act.
(iii) Furnish to the selling Holder(s) such numbers of copies
of such registration statement, each amendment thereto, the
prospectus included in such registration statement (including each
preliminary prospectus), each supplement thereto and such other
documents as they may reasonably request in order to facilitate the
disposition of the Shares owned by them.
9
(iv) Use its best efforts to register and qualify under such
other securities laws of such jurisdictions as shall be reasonably
requested by any selling Holder and do any and all other acts and
things which may be reasonably necessary or advisable to enable
such selling Holder to consummate the disposition of the Shares
owned by such Holder, in such jurisdictions; provided, however,
that the Company shall not be required in connection therewith or
as a condition thereto to qualify to transact business or to file a
general consent to service of process in any such states or
jurisdictions.
(v) Promptly notify each selling Holder of the happening of
any event as a result of which the prospectus included in such
registration statement contains an untrue statement of a material
fact or omits any fact necessary to make the statements therein not
misleading and, at the request of any such Holder, the Company will
prepare a supplement or amendment to such prospectus so that, as
thereafter delivered to the purchasers of such Shares, such
prospectus will not contain an untrue statement of a material fact
or omit to state any fact necessary to make the statements therein
not misleading.
(vi) Provide a transfer agent and registrar for all such
Shares not later than the effective date of such registration
statement.
(vii) Enter into such customary agreements (including
underwriting agreements in customary form for a primary offering)
and take all such other actions as the underwriters, if any,
reasonably request in order to expedite or facilitate the
disposition of such Shares (including, without limitation,
effecting a stock split or a combination of shares).
(viii) Make available for inspection by any selling Holder or
any underwriter participating in any disposition pursuant to such
registration statement and any attorney, accountant or other agent
retained by any such selling Holder or underwriter, all financial
and other records, pertinent corporate documents and properties of
the Company, and cause the officers, directors, employees and
independent accountants of the Company to supply all information
reasonably requested by any such seller, underwriter, attorney,
accountant or agent in connection with such registration statement.
(ix) Promptly notify the selling Holder(s) and the
underwriters, if any, of the following events and (if requested by
any such person) confirm such notification
10
in writing: (A) the filing of the prospectus or any prospectus
supplement and the registration statement and any amendment or post-
effective amendment thereto and, with respect to the registration
statement or any post-effective amendment thereto, the declaration of
the effectiveness of such documents, (B) any requests by the
Commission for amendments or supplements to the registration statement
or the prospectus or for additional information, (C) the issuance or
threat of issuance by the Commission of any stop order suspending the
effectiveness of the registration statement or the initiation of any
proceedings for that purpose, and (D) the receipt by the Company of
any notification with respect to the suspension of the qualification
of the Shares for sale in any jurisdiction or the initiation or threat
of initiation of any proceeding for such purposes.
(x) Make every reasonable effort to prevent the entry of any
order suspending the effectiveness of the registration statement and
to obtain at the earliest possible moment the withdrawal of any such
order, if entered.
(xi) Cooperate with the selling Holder(s) and the
underwriters, if any, to facilitate the timely preparation and
delivery of certificates representing the Shares to be sold and not
bearing any restrictive legends, and enable such Shares to be in such
lots and registered in such names as the underwriters may request at
least two (2) business days prior to any delivery of the Shares to the
underwriters.
(xii) Provide a CUSIP number for all the Shares not later than
the effective date of the registration statement.
(xiii) Prior to the effectiveness of the registration statement
and any post-effective amendment thereto and at each closing of an
underwritten offering, (A) make such representations and warranties to
the selling Holder(s) and the underwriters, if any, with respect to
the Shares and the registration statement as are customarily made by
issuers in primary underwritten offerings; (B) use its best efforts to
obtain "cold comfort" letters and updates thereof from the Company's
independent certified public accountants addressed to the selling
Holders and the underwriters, if any, such letters to be in customary
form and covering matters of the type customarily covered in "cold
comfort" letters by underwriters in connection with primary
underwritten offerings; (C) deliver such documents and certificates as
may be reasonably requested (1) by the holders of a majority of the
11
Shares being sold, and (2) by the underwriters, if any, to evidence
compliance with clause (A) above and with any customary conditions
contained in the underwriting agreement or other agreement entered
into by the Company; and (D) obtain opinions of counsel to the Company
and updates thereof (which counsel and which opinions shall be
reasonably satisfactory to the underwriters, if any), covering the
matters customarily covered in opinions requested in underwritten
offerings and such other matters as may be reasonably requested by the
selling Holders and underwriters or their counsel. Such counsel shall
also state that no facts have come to the attention of such counsel
which cause them to believe that such registration statement, the
prospectus contained therein, or any amendment or supplement thereto,
as of their respective effective or issue dates, contains any untrue
statement of any material fact or omits to state any material fact
necessary to make the statements therein not misleading (except that
no statement need be made with respect to any financial statements,
notes thereto or other financial data or other expertized material
contained therein). If for any reason the Company's counsel is unable
to give such opinion, the Company shall so notify the Holders of the
Shares and shall use its best efforts to remove expeditiously all
impediments to the rendering of such opinion.
(xiv) Otherwise use its best efforts to comply with all
applicable rules and regulations of the Commission, and make generally
available to its security holders earnings statements satisfying the
provisions of Section 11(a) of the Securities Act, no later than
forty-five (45) days after the end of any twelve-month period (or
ninety (90) days, if such period is a fiscal year) (A) commencing at
the end of any fiscal quarter in which the Shares are sold to
underwriters in a firm or best efforts underwritten offering, or (B)
if not sold to underwriters in such an offering, beginning with the
first month of the first fiscal quarter of the Company commencing
after the effective date of the registration statement, which
statements shall cover such twelve-month periods.
(c) After the date hereof, the Company shall not grant to any holder
of securities of the Company any registration rights which have a priority
greater than or equal to those granted to Holders pursuant to this Warrant
without the prior written consent of the Holder(s).
(d) The Company's obligations under Section 10(a) above with respect
to each Holder are expressly conditioned upon such Holder's furnishing to
the Company in writing such information concerning such holder and the
terms of such
12
Holder's proposed offering as the Company shall reasonably request for
inclusion in the registration statement and in the event that the offering
is underwritten, upon such Holder executing an underwriting agreement in
customary form. If any registration statement including any of the Shares
is filed, then the Company shall indemnify each holder thereof (and each
underwriter for such Holder and each person, if any, who controls such
underwriter within the meaning of the Securities Act) from any loss, claim,
damage or liability arising out of, based upon or in any way relating to
any untrue statement of a material fact contained in such registration
statement or any omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading,
except for any such statement or omission based on information furnished in
writing by such Holder expressly for use in connection with such
registration statement; and such holder shall indemnify the Company (and
each of its officers and directors who has signed such registration
statement, each director, each person, if any, who controls the Company
within the meaning of the Securities Act, each underwriter for the Company
and each person, if any, who controls such underwriter within the meaning
of the Securities Act) and each other such Holder against any loss, claim,
damage or liability arising from any such statement or omission which was
made in reliance upon information furnished in writing to the Company by
such holder of the Shares expressly for use in connection with such
registration statement.
(e) For purposes of this Section 10, all of the Shares shall be
deemed to be issued and outstanding.
11. Certain Notices. In case at any time the Company shall propose to:
---------------
(a) declare any cash dividend upon its Common Stock;
(b) declare any dividend upon its Common Stock payable in stock or
make any special dividend or other distribution to the holders of its
Common Stock;
(c) offer for subscription to the holders of any of its Common Stock
any additional shares of stock in any class or other rights;
(d) reorganize, or reclassify the capital stock of the Company, or
consolidate, merge or otherwise combine with, or sell all or substantially
all of its assets to, another corporation;
(e) voluntarily or involuntarily dissolve, liquidate or wind up of
the affairs of the Company; or
13
(f) redeem or purchase any shares of its capital stock or securities
convertible into its capital stock;
then, in any one or more of said cases, the Company shall give to the Holder of
the Warrant, by certified or registered mail, (i) at least thirty (30) days'
prior written notice of the date on which the books of the Company shall close
or a record shall be taken for such dividend, distribution or subscription
rights or for determining rights to vote in respect of any such reorganization,
reclassification, consolidation, merger, sale, dissolution, liquidation or
winding up, and (ii) in the case of such reorganization, reclassification,
consolidation, merger, sale, dissolution, liquidation or winding up, at least
twenty (20) days' prior written notice of the date when the same shall take
place. Any notice required by clause (i) shall also specify, in the case of any
such dividend, distribution or subscription rights, the date on which the
holders of Common Stock shall be entitled thereto, and any notice required by
clause (ii) shall specify the date on which the holders of Common Stock shall be
entitled to exchange their Common Stock for securities or other property
deliverable upon such reorganization, reclassification, consolidation, merger,
sale, dissolution, liquidation or winding up, as the case may be.
12. Rights of Co-Sale.
-----------------
(a) Co-Sale Right. Neither W. Allan Jones, Jr. nor Janie P. Jones
-------------
(collectively, "Selling Shareholder") shall enter into any transaction that
would result in the sale by him or her of any Common Stock now or hereafter
owned by him or her other than transfers to family members, transfers to trusts
for the benefit of family members which agree to be bound by the terms of this
paragraph 12, or transfer's to affiliates of a Selling Shareholder, which agree
to be bound by the terms of this paragraph 12, unless prior to such sale the
Selling Shareholder shall give notice to Holder of his or her intention to
effect such sale in order that Holder may exercise its rights under this Section
12 as hereinafter described. such notice shall set forth (i) the number of
shares to be sold by the Selling Shareholder, (ii) the principal terms of the
sale, including the price at which the shares are intended to be sold, and (iii)
an offer by the Selling Shareholder to use his or her best efforts to cause to
be included with the shares to be sold by him or her in the sale, on a pro rata
basis and on the same terms and conditions, the Shares issuable or issued to
Holder pursuant this Warrant.
(b) Rejection of Co-Sale Offer. If Holder has not accepted such offer in
--------------------------
writing within a period of ten (10) days from the date of receipt of the
notice, then the
14
Selling Shareholder shall thereafter be free for a period of ninety (90)
days to sell the number of shares specified in such notice, at a price no
greater than the price set forth in such notice and on otherwise no more
favorable terms to the Selling Shareholder than as set forth in such
notice, without any further obligation to Holder in connection with such
sale. In the event that the Selling Shareholder fails to consummate such
sale within such ninety-day period, the shares specified in such notice
shall continue to be subject to this Section.
(c) Acceptance of Co-Sale Offer. If Holder accepts such offer in
---------------------------
writing within such ten (10) day period, such acceptance shall be
irrevocable unless the Selling Shareholder shall be unable to cause to be
included in his sale the number of Shares of stock held by Holder and set
forth in the written acceptance. In that event, the Selling Shareholder and
Holder shall participate in the sale pro rata based on their respective
ownership interests in the Company.
13. Stock Option Plan. Notwithstanding anything contained herein to the
-----------------
contrary, the Company may establish an employee stock incentive plan pursuant to
which stock grants or options to purchase a number of shares of the Company's
common stock not to exceed 15% of the shares outstanding may be granted to the
Company's employees; provided, however, that the exercise price per share of
capital stock under each option granted under the option plan shall in no event
be less than l00% of the fair market value of the capital stock on the date such
option is granted.
14. Notice. Any and all notices, elections or demands permitted or
------
required to be made under this Warrant shall be in writing, signed by the party
giving such notice, election or demand and shall be delivered personally,
telescoped, or sent by certified mail or overnight via nationally recognized
courier service (such as Federal Express), to the other party at the address set
forth below, or at such other address as may be supplied in writing and of which
receipt has been acknowledged in writing. The date of personal delivery or
telecopy or two (2) business days after the date of mailing (or the next
business day after delivery to such courier service), as the case may be, shall
be the date of such notice, election or demand. For the purposes of this
Warrant:
The Address of Holder is: Sirrom Capital Corporation
Suite 200
500 Church Street
Nashville, TN 37219
Attention: John C. Harrison
Telecopy No. 615/726-1208
15
with a copy to: Chambliss, Bahner & Stophel, P.C.
1000 Tallan Building
Two Union Square
Chattanooga, TN 37402
Attention: J. Patrick Murphy, Esq.
Telecopy No. 423/265-9574
The Address of Company is: Check into Cash, Inc.
205 Second Street, N.W.
Jones Building
Cleveland, TN 37364-1015
Attention: W. Allan Jones, Jr.
Telecopy No. 423/476-9200
with a copy to: Alston & Bird, LLP
One Atlantic Center
1201 Peachtree Street
Atlanta, GA 30309-3424
Attn.: David E. Brown, Jr.
Telecopy No. 404/881-7777
15. Equity Participation. This Warrant is issued in connection with the
--------------------
Loan Agreement. It is intended that this Warrant constitute an equity
participation under and pursuant to T.C.A. (S)47-24-101, et seq. and that such
-------
equity participation be permitted under said statutes and not constitute
interest on the Note. If under any circumstances whatsoever, fulfillment of any
obligation of this Warrant, the Loan Agreement, or any other agreement or
document executed in connection with the Loan Agreement, shall violate the
lawful limit of any applicable usury statute or any other applicable law with
regard to obligations of like character and amount, then the obligation to be
fulfilled shall be reduced to such lawful limit, such that in no event shall
there occur, under this Warrant, the Loan Agreement, or any other document or
instrument executed in connection with the Loan Agreement, any violation of such
lawful limit, but such obligation shall be fulfilled to the lawful limit. If any
sum is collected in excess of the lawful limit, such excess shall be applied to
reduce the principal amount of the Note.
16. Severability. If any provisions(s) of this Warrant or the application
------------
thereof to any person or circumstances shall be invalid or unenforceable to any
extent, the remainder of this Warrant and the application of such provisions to
other persons or circumstances shall not be affected thereby and shall be
enforced to the greatest extent permitted by law.
17. Entire Agreement. This Warrant between the Company and Holder
----------------
represents the entire agreement between the parties concerning the subject
matter hereof, and all oral discussions and prior agreement are merged herein.
16
18. Governing Law. This warrant shall be governed by the laws of the
-------------
State of Tennessee applicable to agreements made entirely within the State.
19. Counterparts. This Warrant may be executed in any number of
------------
counterparts and be different parties to this Warrant in separate counterparts,
each of which when so executed shall be deemed to be an original and all of
which taken together shall constitute one and the same Warrant.
20. Consent to Jurisdiction; Exclusive Venue. The Company hereby
----------------------------------------
irrevocably consents to the jurisdiction of the United States District Court for
the Middle District of Tennessee and of all Tennessee state courts sitting in
Davidson County, Tennessee, for the purpose of any litigation to which Holder
may be a party and which concerns this Warrant. It is further agreed that venue
for any such action shall lie exclusively with courts sitting in Davidson
County, Tennessee, unless Holder agrees to the contrary in writing.
21. Waiver of Trial by Jury. HOLDER AND THE COMPANY HEREBY KNOWINGLY AND
-----------------------
VOLUNTARILY WITH THE BENEFIT OF COUNSEL WAIVE TRIAL BY JURY IN ANY ACTIONS,
PROCEEDINGS, CLAIMS OR COUNTER-CLAIMS, WHETHER IN CONTRACT OR TORT OR OTHERWISE,
AT LAW OR IN EQUITY, ARISING OUT OF OR IN ANY WAY RELATING TO THIS WARRANT.
[Space Intentionally Left Blank]
17
IN WITNESS WHEREOF, the parties hereto have set their hands as of the
date first above written.
CHECK INTO CASH, INC., a Delaware
corporation
By: /s/ Fred Krosner
-------------------------------------
Title: V.P.
----------------------------------
SIRROM CAPITAL CORPORATION, a
Tennessee corporation
By: /s/ Kim Stringfield
-------------------------------------
Title: Treasurer
----------------------------------
The undersigned shareholders join in the execution of this Warrant for the
purposes of acknowledging and agreeing to be bound by Section 12 hereof.
/s/ W. Allan Jones, Jr.
-----------------------------------------
W. Allan Jones, Jr.
/s/ Janie P. Jones
-----------------------------------------
Janie P. Jones
IN WITNESS WHEREOF, the parties hereto have set their hands as of the date
first above written.
CHECK INTO CASH, INC., a Delaware
corporation
By: /s/ Fred Krosner
-------------------------------------
Title: VP
----------------------------------
SIRROM CAPITAL CORPORATION, &
Tennessee corporation
By: [Signature Appears Here]
-------------------------------------
Title:
----------------------------------
The undersigned shareholders join in the execution of this Warrant for the
purposes of acknowledging and agreeing to be bound by Section 12 hereof.
/s/ W. Allan Jones, Jr.
----------------------------------------
W. Allan Jones, Jr.
/s/ Jamie P. Jones
----------------------------------------
Jamie P. Jones
19
SCHEDULE I
----------
Illustration of Anti-Dilution Provision
---------------------------------------
Assumptions:
Outstanding Common Stock: 100,000 Shares
(fully diluted)
Fair Market Value per share: $10
New Issuance: 20,000 Shares
New Issue Price (all in) $8
Debt Warrant: 10,000 Shares
FMV of Warrant Shares: $100,000 ($10 x 10,000 shares)
Formula:
10,000 x (120,000 x $10)
------------------------------------
(100,000 x $10) + (20,000 x $8)
10,000 x 1,200,000
---------
1,160,000
10,000 x 1.0345
Adjusted No. of Warrant Shares: 10,344.83
Percentage of Outstanding: 10,344.83 = 0.0862
---------
120,000
FMV of Adj. Warrant Shares: .0862 x 1,160,000 = $100,000
20
EX-10.5
7
AIRCRAFT LEASE
EXHIBIT 10.5
AIRCRAFT LEASE
THIS AIRCRAFT LEASE is made and entered into effective as of November
14, 1997 by and between JONES AIRWAYS, LLC, ("Lessor") a Delaware limited
liability company, and CHECK INTO CASH, INC. ("Lessee") a Delaware corporation.
WITNESSETH:
WHEREAS, Lessor is the registered owner of an aircraft described in
Exhibit A, attached hereto and incorporated by reference herein, and hereinafter
- ---------
referred to as the "Aircraft", which aircraft is available for lease to a
qualified Lessee; and
WHEREAS, Lessee desires to lease the Aircraft under such terms and
conditions as are mutually set forth herein.
NOW, THEREFORE, the parties agree as follows:
SECTION I
LEASE OF AIRCRAFT
In consideration of the rent to be charged as set forth below, Lessor
hereby leases the Aircraft to Lessee or its affiliated companies on a
non-exclusive basis. It is acknowledged by Lessee that the Lessor also
contemplates leasing the Aircraft to other parties, on a non-exclusive basis,
and that any conflicts in usage of the Aircraft by such lessees will be
determined by the Lessor and shall consider which Lessee first reserved usage of
the Aircraft with the Lessor. Any such conflicts as to time of usage will be
finally resolved by Lessor. Lessor however commits to having the Aircraft
available to Lessee or any of its affiliates for a minimum of thirty (30) hours
per month. During any time that the Aircraft is leased to Lessee, the Lessee
shall have the complete possession, command and control of the Aircraft, and
shall be responsible for pilots for the aircraft and for maintenance of the
aircraft, as herein provided.
SECTION II
TERM
This lease shall commence on the date of this lease, and unless
terminated sooner as provided herein, the lease shall be for a term of five (5)
years. Notwithstanding any provisions in this lease to the contrary, either
party may terminate this lease upon ten (10) days notice to the other party
hereunder.
SECTION III
RENT
The rent payable by Lessee to Lessor shall be calculated at the rate
of Thirty Thousand Dollars ($30,000.00) per month plus Seven Hundred Fifty
Dollars ($750.00) per flight hour in excess of thirty (30) hours per month.
Flight hours shall be measured from the time of takeoff to the time of touchdown
and shall be verified by the use of the Aircraft's flight hour meter (Hobbs).
The rent shall be due and payable no later than fifteen (15) days after the
close of each month.
SECTION IV
OPERATING COSTS
Lessee shall be responsible for the cost of fuel, flight crew, flight
crew expenses and all trip related expenses, including but not limited to,
landing fees, parking and catering fees as the same may apply from time to time.
SECTION V
RISK OF LOSS
Lessor shall, at Lessor's own expense, keep the Aircraft, together
with all its equipment and accessories, insured against loss or damage from
crash, fire, windstorm, collision, or other casualty. To the extent not covered
by insurance, Lessee shall be liable for any loss or damage to the Aircraft
which occurs in any manner from any cause while the Aircraft is under the
possession and control of the Lessee during the term of this Lease.
SECTION VI
RESTRICTIONS ON USE
Lessee and/or its affiliated companies may operate the Aircraft only
for the purposes, and within the geographical limits, set forth in the insurance
policy or policies covering the Aircraft and obtained by Lessor. Furthermore,
Lessee and/or its affiliates shall not use Aircraft in violation of any foreign,
federal, state, territorial, or municipal law or regulation and shall be solely
responsible for any fines, penalties, or forfeiture occasioned by any violation.
If such fines or penalties are imposed on Lessor and paid by Lessor, Lessee
shall reimburse Lessor for the amount thereof within ten (10) days of receipt by
Lessee of written demand from Lessor. Lessee will not base Aircraft, or permit
it to be based, outside the limits of the United States of America, without the
prior written consent of Lessor. The Aircraft shall be flown only by licensed
and qualified pilots. In the event the insurance on the Aircraft is invalidated
because Lessee is unable to obtain licensed and qualified pilots, Lessee shall
not operate the Aircraft until such time as licensed and qualified pilots are
obtained and insurance on the Aircraft is made valid.
SECTION VII
INSPECTION BY LESSOR
Lessee agrees to permit Lessor or an authorized agent to inspect the
Aircraft at any reasonable time and to furnish any information in respect to the
Aircraft and its use that Lessor may reasonably request.
SECTION VIII
ALTERATIONS
Lessee shall not have the right to alter, modify, or make additions or
improvements to the Aircraft without written permission from Lessor. In the
event written permission is given, all such alterations, modifications,
additions, and improvements as are so made shall become the property of Lessor
and shall be subject to all of the terms of this agreement.
SECTION IX
MAINTENANCE AND REPAIR
Lessee, at it's own expense, shall repair and maintain the Aircraft so
as to keep it in good and safe operating condition, subject only to normal wear
and tear accepted in the aircraft industry consistent with maintaining a safe
aircraft. Lessee shall pay all costs and expenses of new parts and accessories
for replacement, including the transportation charges thereon. All inspection,
repairs, modifications, maintenance, and overhaul work to be accomplished shall
be performed by personnel licensed to perform such work and shall be performed
in accordance with the standards set by the Federal Aviation Administration
regulations and requirements. Lessee shall maintain all log books and records
pertaining to the Aircraft during the term of this agreement in accordance with
the rules and regulations of the Federal Aviation Administration. Such records
shall be made available for examination by Lessor, and Lessee, at the end of the
term of this agreement, shall deliver such records to Lessor.
SECTION X
TITLE
The registration of, and title to, the Aircraft shall be in the name
of Lessor, and the Aircraft, at all times during the term of this agreement, or
any extension, shall bear United States registration markings. All
responsibility and obligations in regard to the operation of the Aircraft, while
in the possession and control of Lessee, shall be borne by Lessee, and the
inability, if any, of Lessee to operate the Aircraft because of ownership,
registration, and markings, or for any other cause, shall not affect the
provisions of this agreement.
SECTION XI
PAYMENT OF TAXES
Lessor shall pay or cause to be paid all taxes incurred by reason of
ownership of the Aircraft during the term of this agreement, including personal
property taxes, but Lessee shall pay all operating taxes, fees, and charges,
including sales taxes on rents payable hereunder, any excise taxes, gasoline
sales taxes, and any tax or fee assessed or charged for the use of any airport
or facilities or for the use of premises occupied in landing incurred while the
Aircraft is in the possession of the Lessee.
SECTION XII
ASSIGNMENT
Lessee shall not assign this lease or any interest in the Aircraft, or
sublet the Aircraft, without prior written consent of Lessor. Subject to the
foregoing, this lease insures to the benefit of, and is binding on, the heirs,
legal representatives, successors, and assigns of the parties.
SECTION XIII
ACCIDENT AND CLAIM
Lessee shall immediately notify Lessor of each accident involving the
Aircraft, which notification shall specify the time, place, and nature of the
accident or damage, the names and addressees of parties involved, persons
injured, witnesses, and owners of properties damaged, and such other information
as may be known. Lessee shall advise Lessor of all correspondence, papers,
notices, and documents whatsoever received by Lessee in connection with any
claim or demand involving or relating to Aircraft or its operation, and shall
aid in any investigation instituted by Lessor and in the recovery of damages
from third persons liable therefor.
SECTION XIV
INDEMNIFICATION
Each party agrees to indemnify and hold harmless the other for any
damages, fines, penalties and any other costs of any description, including
reasonable attorney's fees, arising out of or relating to any breach of this
agreement by such party.
SECTION XV
RETURN OF AIRCRAFT TO OWNER
On the termination of this Lease by expiration or otherwise, Lessee
shall return the Aircraft to Lessor in as good operating condition and
appearance as when received, ordinary wear, tear, and deterioration expected,
and shall indemnify Lessor against any claim for loss or damage occurring prior
to the actual physical delivery of the Aircraft to Lessor.
SECTION XVI
DEFAULT
If Lessee fails to make any payment of rent or other charges within
fifteen (15) days after such amounts are due and payable, or if Lessee fails to
comply with any provision of this agreement, Lessor shall have the right to take
possession of the Aircraft wherever it may be located, without demand or notice
and without any court order or other process of law and to located, without
demand or notice and without any court order or other process of law and to
pursue any other remedy available to Lessor at law or in equity. In the event of
such default by Lessee, Lessor, at Lessor's option, may terminate this
agreement. Notwithstanding any repossession or other action that Lessor may
take, Lessee shall be and remain liable for the full performance of all
obligations on the part of Lessee to be performed under this lease. Lessor's
waiver of any default on the part of Lessee shall not constitute a waiver of
subsequent defaults.
SECTION XVII
GOVERNING LAW
This agreement is entered into under, and is to be construed in
accordance with, the laws of the State of Tennessee, without regard to the rules
of conflicts of law thereof.
SECTION XVIII
MODIFICATION AGREEMENT
This agreement constitutes the entire understanding between the
parties, and any change or modification must be in writing and signed by both
parties.
IN WITNESS WHEREOF, the parties have executed this lease agreement of
the day and year first above written.
JONES AIRWAYS, LLC
By: /s/ W. Allan Jones
---------------------------------
(W. Allan Jones) Chief Manager
Title: Member
LESSOR
CHECK INTO CASH, INC.
By: /s/ Steve Scoggins
---------------------------------
(Steve Scoggins)
Title: President
LESSEE
EXHIBIT A
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DESCRIPTION OF AIRCRAFT
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1979 CESSNA CITATION II
Serial Number 550-0044
ENGINES:
Pratt & Whitney JT15D Engines
Serial Numbers: PCE70210
PCE70467
AVIONICS:
Dual Sperry SPZ-500 5" & 4" Flight Director Bendix RDR - 1150 Color Radar
Dual Sperry SPX-500 IFCS Sperry AA-125 radar Altimeter
Dual Collins VHF-20 A Comms Wulfsberg Flitephone III
Dual Collins VIR-30A Navs J.E.T. Standby Gyro
Dual Collins DME-40 DME's Teledyne Angle of Attack
Dual Collins ADF-60 ADF's
Dual Collins TDR-90 Transponders
OTHER EQUIPMENT:
Rohr Thrust Reversers Freon Air Conditioning
Anti-Skid Brakes Engine Fan/Turbine Synch
64 Cubic Foot Oxygen System
INTERIOR:
Nine passenger double club configuration appointed in Bone Leather with Taupe
Carpet and matching side panels.
EXTERIOR:
White with Gold and Teal Accents.
EX-10.6.1
8
EMPLOYMENT AGREEMENT
EXHIBIT 10.6.1
EXHIBIT 1
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EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (this "Agreement") is made and entered into this
31st day of July, 1997 by and between Check into Cash, Inc., a Delaware
corporation (hereinafter, the "Company"), and Steve Scoggins (hereinafter,
"Executive").
BACKGROUND
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The Company desires to engage Executive in Executive capacities set forth
herein, in accordance with the terms and conditions of this Agreement.
Executive is willing to serve as such in accordance with the terms and
conditions of this Agreement.
NOW THEREFORE, in consideration of the foregoing and of the mutual covenants
and agreements set forth herein, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. Effective Date. This Agreement is effective as of July 1, 1997 (the
--------------
"Effective Date").
2. Employment. Executive is hereby employed on the Effective Date as the
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President of the Company. Executive's responsibilities under this Agreement
shall be in accordance with the policies and objectives established by the Chief
Executive Officer and the Board of Directors of the Company and shall be
consistent with the responsibilities of similarly situated executives of
comparable companies in similar lines of business. In his capacity as President
of the Company, Executive will report directly to the Chief Executive Officer of
the Company.
3. Employment Period. Unless earlier terminated herein in accordance with
-----------------
Section 7 hereof, Executive's employment shall be for a three-year term (the
"Employment Period"), beginning on the Effective Date. The Employment Period
shall, without further action by Executive or the Company, be extended for an
additional one-year period on each anniversary of the Effective Date; provided,
however, that either party may, by notice to the other given at any time prior
to such next anniversary of the Effective Date, cause the Employment Period to
cease to extend automatically. Upon such notice, the Employment Period shall
terminate upon the expiration of the then-current term, including any prior
extensions.
4. Extent of Service. During the Employment Period, and excluding any
-----------------
periods of vacation and sick leave to which Executive is entitled, Executive
agrees to devote his business time, attention, skill and efforts exclusively to
the faithful performance of his duties hereunder; provided, however, that it
shall not be a violation of
this Agreement for Executive to (i) devote reasonable periods of time to
charitable and community activities, and/or (ii) manage personal business
interests and investments, so long as such activities do not interfere with the
performance of Executive's responsibilities under this Agreement.
5. Compensation and Benefits.
-------------------------
(a) Base Salary. During the Employment Period, the Company will pay to
-----------
Executive a base salary in the amount of $100,000 for the remainder of 1997,
rising to $150,000 per year on January 1, 1998 ("Base Salary"), less normal
withholdings, payable in equal monthly or more frequent installments as are
customary under the Company's payroll practices from time to time. The Board of
Directors of the Company shall review Executive's Base Salary annually and in
its sole discretion, subject to approval of the Board of Directors of the
Company, may increase Executive's Base Salary from year to year. The annual
review of Executive's salary by the Board will consider, among other things,
Executive's own performance and the Company's performance.
(b) Bonus. On or before December 20, 1997, the Company will pay to
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Executive a cash bonus in the amount of $50,000. Future bonuses will be made on
a discretionary basis in accordance with the Company's incentive plans referred
to in subsection (c) below.
(c) Incentive, Savings and Retirement Plans. During the Employment
---------------------------------------
Period, Executive shall be entitled to participate in all incentive, savings and
retirement plans, practices, policies and programs applicable generally to
similarly situated officers of the Company and its affiliated companies, and on
the same relative basis as such other similarly situated officers.
(d) Welfare Benefit Plans. During the Employment Period, Executive and
---------------------
Executive's family shall be eligible for participation in and shall receive all
benefits under welfare benefit plans, practices, policies and programs provided
by the Company and its affiliated companies (including, without limitation,
medical, prescription, dental, disability, employee life, group life, accidental
death and travel accident insurance plans and programs) to the extent applicable
generally to similarly situated officers of the Company and its affiliated
companies.
(e) Expenses. During the Employment Period, Executive shall be
--------
entitled to receive prompt reimbursement for all reasonable expenses incurred by
Executive in accordance with the policies, practices and procedures of the
Company and its affiliated companies to the extent applicable generally to other
similarly situated officers of the Company and its affiliated companies.
(f) Fringe Benefits. During the Employment Period, Executive shall be
---------------
entitled to fringe benefits in accordance with the plans, practices, programs
and
2
policies of the Company and its affiliated companies in effect for similarly
situated officers of the Company and its affiliated companies.
(g) Automobile. Without limiting the foregoing, during the Employment
----------
Period, the Company shall pay Executive an automobile allowance of not less than
$475 per month.
(h) Club Dues. Without limiting the foregoing, during the Employment
---------
Period, the Company shall pay Executive's membership dues at the Cleveland Golf
and Country Club.
(i) Boat. On or about the Effective Date, the Company shall confer to
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Executive title to a Yamaha Exciter 220 HP personal ski boat.
6. Stock Awards.
------------
(a) Lapse of Restrictions on Existing Restricted Stock Award.
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Effective as of the Effective Date, all restrictions applicable to the grant to
Executive of 12,000 shares of the $0.01 par value common stock of the Company
("Common Stock") pursuant to that certain Restricted Stock Agreement, dated as
of January 10, 1997, by and between Executive and the Company, shall lapse and
be of no further force or effect.
(b) Grant of Unrestricted Shares. The Company hereby grants to
----------------------------
Executive, as of the Effective Date and pursuant to the Company's 1997 Long-Term
Incentive Plan, 24,000 additional shares of Common Stock, which shares are not
subject to any restrictions on vesting.
(c) Loan to Pay Taxes. The Company shall lend to Executive, interest
-----------------
free, an amount in cash sufficient to pay all federal and state and local income
and other taxes incurred by Executive in connection with the lapse of vesting
restrictions and grant of additional shares of Common Stock pursuant to this
Section 6. Such loan shall be evidenced by a loan agreement and promissory note
to be mutually agreed by Executive and the Company and shall be repayable in
full on the earlier to occur of (i) the fifth anniversary of the Effective Date,
(ii) the date of Executive's termination of employment if such termination is by
the Company for Cause or by Executive without Good Reason (as such capitalized
terms are defined in Sections 7(b) and 7(c) hereof), or (iii) 240 days after the
Common Stock first becomes listed for trading on a national securities exchange,
the Nasdaq National Market or in the over-the-counter market.
7. Termination of Employment.
-------------------------
(a) Death, Retirement or Disability. Executive's employment shall
-------------------------------
terminate automatically upon Executive's death or Retirement during the
Employment Period. If the Company determines in good faith that the Disability
of Executive has
3
occurred during the Employment Period (pursuant to the definition of Disability
set forth below), it may give to Executive written notice in accordance with
Section 14(f) of this Agreement of its intention to terminate Executive's
employment. In such event, Executive's employment with the Company shall
terminate effective on the 30th day after receipt of such written notice by
Executive (the "Disability Effective Date"), provided that, within the 30 days
after such receipt, Executive shall not have returned to full-time performance
of Executive's duties. For purposes of this Agreement, "Disability" shall mean a
mental or physical disability as determined by the Board of Directors of the
Company in accordance with standards and procedures similar to those under the
Company's employee long-term disability plan, if any. At any time that the
Company does not maintain such a long-term disability plan, Disability shall
mean the inability of Executive, as determined by the Board, to substantially
perform the essential functions of his regular duties and responsibilities due
to a medically determinable physical or mental illness which has lasted (or can
reasonably be expected to last) for a period of six consecutive months. For
purposes of this Agreement, "Retirement" shall mean voluntary termination of
employment after age 65.
(b) Termination for Cause. The Company may terminate Executive's
---------------------
employment during the Employment Period for Cause. For purposes of this
Agreement, "Cause" shall mean:
(i) the willful and continued failure of Executive to perform
substantially Executive's duties with the Company (other than any such failure
resulting from incapacity due to physical or mental illness), after a written
demand for substantial performance is delivered to Executive by the Board of
Directors of the Company which specifically identifies the manner in which such
Board believes that Executive has not substantially performed Executive's
duties, or
(ii) the willful engaging by Executive in illegal conduct or gross
misconduct the consequence of which is materially and demonstrably injurious to
the Company.
For purposes of this provision, no act or failure to act, on the part of
Executive, shall be considered "willful" unless it is done, or omitted to be
done, by Executive in bad faith or without reasonable belief that Executive's
action or omission was in the best interests of the Company. Any act, or
failure to act, based upon authority given pursuant to a resolution duly adopted
by the Board or based upon the advice of counsel for the Company shall be
conclusively presumed to be done, or omitted to be done, by Executive in good
faith and in the best interests of the Company. The cessation of employment of
Executive shall not be deemed to be for Cause unless and until there shall have
been delivered to Executive a copy of a resolution duly adopted by the
affirmative vote of not less than three-quarters of the entire membership of the
Board of Directors of the Company (excluding Executive, if then a director) at a
meeting of such Board called and held for such purpose (after reasonable notice
is provided to Executive and
4
Executive is given an opportunity, together with counsel, to be heard before
such Board), finding that, in the good faith opinion of such Board, Executive is
guilty of the conduct described in subparagraph (i) or (ii) above, and
specifying the particulars thereof in detail.
(c) Good Reason. Executive's employment may be terminated by Executive
-----------
for Good Reason. For purposes of this Agreement, "Good Reason" shall mean:
(i) without the written consent of Executive, the assignment to
Executive of any duties materially inconsistent with Executive's position
(including status, offices, titles and reporting requirements), authority,
duties or responsibilities as contemplated by Section 2 of this Agreement, or
any other action by the Company which results in a material diminution in such
position, authority, duties or responsibilities, excluding for this purpose an
isolated, insubstantial and inadvertent action not taken in bad faith and which
is remedied by the Company promptly after receipt of notice thereof given by
Executive;
(ii) a reduction by the Company in Executive's Base Salary and
benefits as in effect on the Effective Date or as the came may be increased from
time to time, unless a similar reduction is made in salary and benefits of
similarly-situated officers of the Company, or the failure by the Company to
increase Executive's Base Salary each year during the Employment Period by an
amount which at least equals, on a percentage basis, the mean average percentage
increase in base salary for all officers of the Company, unless such failure to
increase is based on non-arbitrary criteria applied to Executive and other
similarly-situated employees;
(iii) any purported termination by the Company of Executive's
employment otherwise than for Cause, death, Disability or Retirement; or
(iv) any failure by the Company to comply with and satisfy
Section 13(b) of this Agreement.
(d) Notice of Termination. Any termination by the Company for Cause,
---------------------
or by Executive for Good Reason, shall be communicated by Notice of Termination
to the other party hereto given in accordance with Section 14(f) of this
Agreement. For purposes of this Agreement, a "Notice of Termination" means a
written notice which (i) indicates the specific termination provision in this
Agreement relied upon, (ii) to the extent applicable, sets forth in reasonable
detail the facts and circumstances claimed to provide a basis for termination of
Executive's employment under the provision so indicated, and (iii) if the Date
of Termination (as defined below) is other than the date of receipt of such
notice, specifies the termination date (which date shall be not less than 30
days after the giving of such notice). The failure by Executive or the Company
to set forth in the Notice of Termination any fact or circumstance which
5
contributes to a showing of Good Reason or Cause shall not waive any right of
Executive or the Company, respectively, hereunder or preclude Executive or the
Company, respectively, from asserting such fact or circumstance in enforcing
Executive's or the Company's rights hereunder.
(e) Date of Termination. "Date of Termination" means (i) if
-------------------
Executive's employment is terminated by the Company for Cause, or by Executive
for Good Reason, the date of receipt of the Notice of Termination or any later
date specified therein, as the case may be, (ii) if Executive's employment is
terminated by the Company other than for Cause or Disability, the Date of
Termination shall be the date on which the Company notifies Executive of such
termination, (iii) if Executive's employment is terminated by reason of death,
Disability or Retirement, the Date of Termination shall be the date of death or
Retirement of Executive or the Disability Effective Date, as the case may be,
and (iv) if Executive's employment is terminated by Executive other than for
Good Reason, death, Disability or Retirement, the Date of Termination shall be
the date of specified in the notice of termination, which shall be not less than
30 days after the giving of such notice.
8. Obligations of the Company upon Termination.
-------------------------------------------
(a) Termination by Executive for Good Reason; Termination by the
------------------------------------------------------------
Company Other Than for Cause, Death, Disability or Retirement. If, during the
- -------------------------------------------------------------
Employment Period, the Company shall terminate Executive's employment other than
for Cause, death, Disability or Retirement, or Executive shall terminate
employment for Good Reason, then in consideration of Executive's services
rendered prior to such termination and as reasonable compensation for his
compliance with the Restrictive Covenants in Section 12 hereof:
(i) the Company shall pay to Executive in a lump sum in cash within 30
days after the Date of Termination the aggregate of the following amounts:
A. the sum of (1) Executive's Base Salary through the Date of
Termination to the extent not theretofore paid, and (2) any
compensation previously deferred by Executive (together with any
accrued interest or earnings thereon) and any accrued vacation pay, in
each case to the extent not theretofore paid (the sum of the amounts
described in clauses (1) and (2) shall be hereinafter referred to as
the "Accrued Obligations"); and
B. the amount equal to Executive's Base Salary in effect as of
the Date of Termination, annualized for one full year (the "Severance
Payment"); and
6
(ii) for one year after Executive's Date of Termination, or such
longer period as may be provided by the terms of the appropriate plan,
program, practice or policy, the Company shall continue benefits to
Executive and/or Executive's family at least equal to those which would
have been provided to them in accordance with the welfare plans, programs,
practices and policies described in Section 5(d) of this Agreement if
Executive's employment had not been terminated or, if more favorable to
Executive, as in effect generally at any time thereafter with respect to
other peer executives of the Company and its affiliated companies and their
families, provided, however, that if Executive becomes re-employed with
another employer and is eligible to receive medical or other welfare
benefits under another employer provided plan, the medical and other
welfare benefits described herein shall be secondary to those provided
under such other plan during such applicable period of eligibility
("Welfare Benefits"); and
(iii) to the extent not theretofore paid or provided, the Company
shall timely pay or provide to Executive any other amounts or benefits
required to be paid or provided or which Executive is eligible to receive
under any plan, program, policy or practice or contract or agreement of the
Company and its affiliated companies (such other amounts and benefits shall
be hereinafter referred to as the "Other Benefits").
(b) Death. If Executive's employment is terminated by reason of Executive's
-----
death during the Employment Period, this Agreement shall terminate without
further obligations to Executive's legal representatives under this Agreement,
other than for payment of Accrued Obligations, the timely payment or provision
of Other Benefits, and the repurchase of Common Stock as described in the
following sentence. If the Common Stock is not freely tradable by Executive on
the date of his death, by reason of securities restrictions or otherwise, the
Company shall, at the request of Executive's surviving spouse or executor or
administrator, repurchase all of such shares of Common Stock then held by
Executive (or his estate) at the then-current Fair Market Value of such Common
Stock (as defined in the Company's 1997 Long-Term Incentive Plan, except that if
the Common Stock is not publicly traded, the Fair Market Value shall be
determined by appraisal conducted by a recognized firm of independent
appraisers). Accrued Obligations shall be paid to Executive's estate or
beneficiary, as applicable, in a lump sum in cash within 30 days of the Date of
Termination. With respect to the provision of Other Benefits, the term Other
Benefits as utilized in this Section 8(b) shall include, without limitation, and
Executive's estate and/or beneficiaries shall be entitled to receive, benefits
under such plans, programs, practices and policies relating to death benefits,
if any, as applicable generally to similarly situated officers of the Company
and its affiliated companies and their beneficiaries, and on the same basis as
such similarly situated officers and their beneficiaries.
7
(c) Disability or Retirement. If Executive's employment is terminated by
------------------------
reason of Executive's Disability or Retirement during the Employment Period,
this Agreement shall terminate without further obligations to Executive, other
than for payment of Accrued Obligations and the timely payment or provision of
Other Benefits. Accrued Obligations shall be paid to Executive in a lump sum in
cash within 30 days of the Date of Termination. With respect to the provision of
Other Benefits, the term Other Benefits as utilized in this Section 8(c) shall
include, without limitation, and Executive shall be entitled after the Date of
Termination to receive, disability or retirement and other benefits under such
plans, programs, practices and policies relating to disability or retirement, if
any, as applicable generally to similarly situated officers of the Company and
its affiliated companies and their families, and on the same basis as such
similarly situated officers and their families.
(d) Cause or Voluntary Termination without Good Reason. If Executive's
--------------------------------------------------
employment shall be terminated for Cause during the Employment Period, or if
Executive voluntarily terminates employment during the Employment Period without
Good Reason, this Agreement shall terminate without further obligations to
Executive, other than for payment of Accrued Obligations and the timely payment
or provision of Other Benefits.
9. Non-exclusivity of Rights. Nothing in this Agreement shall prevent or
-------------------------
limit Executive's continuing or future participation in any plan, program,
policy or practice provided by the Company or any of its affiliated companies
and for which Executive may qualify, nor, subject to Section 14(d), shall
anything herein limit or otherwise affect such rights as Executive may have
under any contract or agreement with the Company or any of its affiliated
companies. Amounts which are vested benefits or which Executive is otherwise
entitled to receive under any plan, policy, practice or program of or any
contract or agreement with the Company or any of its affiliated companies at or
subsequent to the Date of Termination shall be payable in accordance with such
plan, policy, practice or program or contract or agreement except as explicitly
modified by this Agreement.
10. Full Settlement; Release; Cost of Enforcement. The Company's obligation
---------------------------------------------
to make the payments provided for in this Agreement and otherwise to perform its
obligations hereunder shall not be affected by any set-off, counterclaim,
recoupment, defense or other claim, right or action which the Company may have
against Executive or others; provided, however, that the Company's obligation to
pay the Severance Payment in accordance with Section 8(a)(i)(B) hereof shall be
conditioned upon Executive's execution of a Release in favor of the Company in
substantially the form of Exhibit A attached hereto. The Company agrees to pay
as incurred, to the full extent permitted by law, all legal fees and expenses
which Executive may reasonably incur as a result of any contest (to the extent
that Executive is successful, in whole or in part, in such contest) by the
Company, Executive or others of the validity or enforceability of, or liability
under, any provision of this Agreement or any guarantee of
8
performance thereof (including as a result of any contest by Executive about the
amount of any payment pursuant to this Agreement), plus in each case interest on
any delayed payment at the applicable federal rate provided for in Section
7872(f)(2)(A) of the Internal Revenue Code of 1986, as amended (the "Code").
11. Representations and Warranties. Executive hereby represents and
------------------------------
warrants to the Company that Executive is not a party to, or otherwise subject
to, any covenant not to compete with any person or entity, and Executive's
execution of this Agreement and performance of his obligations hereunder will
not violate the terms or conditions of any contract or obligation, written or
oral, between Executive and any other person or entity.
12. Restrictions on Conduct of Executive.
------------------------------------
(a) General. Executive and the Company understand and agree that the
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purpose of the provisions of this Section 12 is to protect legitimate business
interests of the Company, as more fully described below, and is not intended to
eliminate Executive's post-employment competition with the Company per se, nor
is it intended to impair or infringe upon Executive's right to work, earn a
living, or acquire and possess property from the fruits of his labor. Executive
hereby acknowledges that the post-employment restrictions set forth in this
Section 12 are reasonable and that they do not, and will not, unduly impair his
ability to earn a living after the termination of this Agreement. Therefore,
subject to the limitations of reasonableness imposed by law upon the
restrictions set forth herein, Executive shall be subject to the restrictions
set forth in this Section 12.
(b) Definitions. The following capitalized terms used in this Section
-----------
12 shall have the meanings assigned to them below, which definitions shall apply
to both the singular and the plural forms of such terms:
"Competitive Services" means any services provided by Company at the
Determination Date, including, but not limited to, the business of cashing
checks, deferring deposit of checks for specified periods of time, and extending
short-term, unsecured credit.
"Confidential Information" means any confidential or proprietary
information possessed by the Company or its affiliated entities or relating to
its or their business, including without limitation, any confidential "know-
how", customer lists, details of client or consultant contracts, current and
anticipated customer requirements, pricing policies price lists, market studies,
business plans, operational methods, marketing plans or strategies, product
development techniques or plans, computer software programs (including object
code and source code), data and documentation, data base technologies, systems,
structures and architectures, inventions and ideas, past, current and planned
research and development, compilations, devices, methods,
9
techniques, processes, financial information and data, business acquisition
plans, new personnel acquisition plans and any other information that would
constitute a Trade Secret (as defined herein).
"Determination Date" means the date of termination of Executive's
employment with the Company for any reason whatsoever or any earlier date
(during the Employment Period) of an alleged breach of the Restrictive Covenants
by Executive.
"Person" means any individual or any corporation, partnership, joint
venture, association or other entity or enterprise.
"Principal or Representative" means a principal, owner, partner,
shareholder, joint venturer, investor, member, trustee, director, officer,
manager, employee, agent, representative or consultant.
"Protected Employees" means employees of the Company who were employed
by the Company at any time within six (6) months prior to the Determination
Date.
"Restricted Period" means the Employment Period and a period extending
two (2) years from the later of (i) the Date of Termination or (ii) the last
date on which the Company makes a payment to Executive pursuant to Section 8 of
this Agreement; provided, however that such period shall be extended by any
length of time during which Executive is in breach of the Restricted Covenants.
"Restrictive Covenants" means the restrictive covenants contained
in Section 12(c) hereof.
"Trade Secret" means any item of Confidential Information that
constitutes a "trade secret(s)" under the common law or statutory law of the
State of Tennessee.
(c) Restrictive Covenants.
---------------------
(i) Restriction on Disclosure and Use of Confidential Information.
-------------------------------------------------------------
Executive understands and agrees that the Confidential Information
constitutes a valuable asset of the Company and its affiliated entities,
and may not be converted to Executive's own use. Accordingly, Executive
hereby agrees that Executive shall not, directly or indirectly, at any time
during the Restricted Period reveal, divulge, or disclose to any Person not
expressly authorized by the Company any Confidential Information, and
Executive shall not, directly or indirectly, at any time during the
Restricted Period use or make use of any Confidential Information in
connection with any business activity other than that
10
of the Company; provided, however, in the event the Confidential
Information constitutes a Trade Secret, the Restricted Period referred to
above shall be five (5) years.
(ii) Nonsolicitation of Protected Employees. Executive understands
--------------------------------------
and agrees that the relationship between the Company and each of its
Protected Employees constitutes a valuable asset of the Company and may not
be converted to Executive's own use. Accordingly, Executive hereby agrees
that during the Restricted Period Executive shall not directly or
indirectly on Executive's own behalf or as a Principal or Representative of
any Person or otherwise solicit or induce any Protected Employee to
terminate his or her employment relationship with the Company or to enter
into any relationship of employment, agency or independent contractorship
with any other Person.
(iii) Noncompetition with the Company. During the Restricted
-------------------------------
Period, Executive, unless acting in accordance with the Company's prior
written consent, will not directly provide any Competitive Services to, and
will not, directly or indirectly, (i) own, manage, operate, join, control,
finance or participate in the ownership, management, operation, control or
financing of, or (ii) be connected as a Principal or Representative or
otherwise with, or (iii) permit Executive's name to be used by or in
connection with, any Person engaged in providing Competitive Services to
any Person conducting business activities within a ten (10) mile radius of
any store location from which the Company is or was engaged in the
provision of the Competitive Services on the Determination Date, including
any store location for which a lease had been entered into by the Company
on or before the Determination Date but was not then operational; provided,
however, that the provisions of this Agreement shall not be deemed to
prohibit the ownership by Executive of any securities of the Company or its
affiliated entities or not more than five percent (5%) of any class of
securities of any corporation having a class of securities registered
pursuant to the Securities Exchange Act of 1934, as amended.
(d) Exceptions from Disclosure Restrictions. Anything herein to the
---------------------------------------
contrary notwithstanding, Executive shall not be restricted from disclosing or
using Confidential Information that: (a) is or becomes generally available to
the public other than as a result of an unauthorized disclosure by Executive or
his agent; (b) becomes available to Executive in a manner that is not in
contravention of applicable law from a source (other than the Company or its
affiliated entities or one of its or their officers, employees, agents or
representatives) that is not bound by a confidential relationship with the
Company or its affiliated entities or by a confidentiality or other similar
agreement; (c) was known to Executive on a non-confidential basis and not in
contravention of applicable law or a confidentiality or other similar agreement
before its disclosure to Executive by the Company or its affiliated entities or
one of its or their officers, employees, agents or representatives; or (d) is
required to be disclosed by law,
11
court order or other legal process; provided, however, that in the event
disclosure is required by law, Executive shall provide the Company with prompt
notice of such requirement so that the Company may seek an appropriate
protective order prior to any such required disclosure by Executive.
(e) Enforcement of Restrictive Covenants.
------------------------------------
(i) Rights and Remedies Upon Breach. In the event Executive
-------------------------------
breaches, or threatens to commit a breach of, any of the provisions of the
Restrictive Covenants, the Company shall have the following rights and
remedies, which shall be independent of any others and severally
enforceable, and shall be in addition to, and not in lieu of, any other
rights and remedies available to the Company at law or in equity:
A. the right and remedy to enjoin, preliminarily and
permanently, Executive from violating or threatening to violate the
Restrictive Covenants and to have the Restrictive Covenants specifically
enforced by any court of competent jurisdiction, it being agreed that any
breach or threatened breach of the Restrictive Covenants would cause
irreparable injury to the Company and that money damages would not provide
an adequate remedy to the Company; and
B. the right and remedy to require Executive to account for and
pay over to the Company all compensation, profits, monies, accruals,
increments or other benefits derived or received by Executive as the result
of any transactions constituting a breach of the Restrictive Covenants.
(ii) Severability of Covenants. Executive acknowledges and agrees
-------------------------
that the Restrictive Covenants are reasonable and valid in time and scope
and in all other respects. If any court determines that any of the
Restrictive Covenants, or any part thereof, are invalid or unenforceable,
the remainder of the Restrictive Covenants shall not thereby be affected
and shall be given full effect, without regard to the invalid portions.
(iii) Attorneys' Fees. In any action relating to the enforcement of
---------------
the Restrictive Covenants, the prevailing party in such action shall be
entitled to be paid any and all costs and expenses incurred by him or it in
enforcing or establishing his or its rights thereunder, including, without
limitation, reasonable attorneys' fees, whether suit be brought or not, and
whether or not incurred in trial, bankruptcy or appellate proceedings.
12
13. Assignment and Successors.
-------------------------
(a) Executive. This Agreement is personal to Executive and without
---------
the prior written consent of the Company shall not be assignable by Executive
otherwise than by will or the laws of descent and distribution. This Agreement
shall inure to the benefit of and be enforceable by Executive's legal
representatives.
(b) The Company. This Agreement shall inure to the benefit of and be
-----------
binding upon the Company and its successors and assigns. The Company will
require any successor to all or substantially all of the business and/or assets
of the Company (whether direct or indirect, by purchase, merger, consolidation
or otherwise) to assume expressly and agree to perform this Agreement in the
same manner and to the same extent that the Company would be required to perform
it if no such succession had taken place. As used in this Agreement, "the
Company" shall mean the Company as hereinbefore defined and any successor to its
business and/or assets as aforesaid which assumes and agrees to perform this
Agreement by operation of law or otherwise.
14. Miscellaneous.
-------------
(a) Waiver. Failure of either party to insist, in one or more
------
instances, on performance by the other in strict accordance with the terms and
conditions of this Agreement shall not be deemed a waiver or relinquishment of
any right granted in this Agreement or of the future performance of any such
term or condition or of any other term or condition of this Agreement, unless
such waiver is contained in a writing signed by the party making the waiver.
(b) Severability. If any provision or covenant, or any part thereof,
------------
of this Agreement should be held by any court to be invalid, illegal or
unenforceable, either in whole or in part, such invalidity, illegality or
unenforceability shall not affect the validity, legality or enforceability of
the remaining provisions or covenants, or any part thereof, of this Agreement,
all of which shall remain in full force and effect.
(c) Other Agents. Nothing in this Agreement is to be interpreted as
------------
limiting the Company from employing other personnel on such terms and conditions
as may be satisfactory to it.
(d) Entire Agreement. Except as provided herein, this Agreement
----------------
contains the entire agreement between the Company and Executive with respect to
the subject matter hereof, and it supersedes and invalidates any previous
agreements or contracts between them which relate to the subject matter hereof.
No representations, inducements, promises or agreements, oral or otherwise,
which are not embodied herein shall be of any force or effect.
(e) Governing Law. Except to the extent preempted by federal law, and
-------------
without regard to conflict of laws principles, the laws of the State of
Tennessee shall
13
govern this Agreement in all respects, whether as to its validity, construction,
capacity, performance or otherwise.
(f) Notices. All notices, requests, demands and other communications
-------
required or permitted hereunder shall be in writing and shall be deemed to have
been duly given if delivered or three days after mailing if mailed, first class,
certified mail, postage prepaid:
To Company: Check into Cash, Inc.
Post Office Box 1015
Cleveland, Tennessee 37364-1015
Facsimile No. (423) 476-9200
Attention: W. Allan Jones, Jr.,
Chairman and Chief Executive Officer
To Executive: Steve Scoggins
_____________________
_____________________
Any party may change the address to which notices, requests, demands and other
communications shall be delivered or mailed by giving notice thereof to the
other party in the same manner provided herein.
(g) Amendments and Modifications. This Agreement may be amended or
----------------------------
modified only by a writing signed by both parties hereto, which makes specific
reference to this Agreement.
(signatures on following page)
14
IN WITNESS WHEREOF, the parties hereto have duly executed and delivered
this Employment Agreement as of the date first above written.
CHECK INTO CASH, INC.
By: /s/ W. Allan Jones, Jr.
----------------------------
W. Allan Jones, Jr.
Chairman of the Board
and Chief Executive Officer
EXECUTIVE:
/s/ Steve Scoggins
---------------------------------
Steve Scoggins
15
EX-10.6.2
9
EMPLOYMENT AGREEMENT
EXHIBIT 10.6.2
EMPLOYMENT, CONFIDENTIALITY
AND NON-COMPETITION AGREEMENT
-----------------------------
THIS EMPLOYMENT, CONFIDENTIALITY AND NON-COMPETITION AGREEMENT
("Agreement") is made and entered into as of the 1st day of August, 1997 by and
between Check into Cash, Inc., a Delaware corporation (hereinafter, the
"Company"), and Ed Ryan (hereinafter, "Employee").
BACKGROUND
----------
The Company desires to engage Employee in the capacities set forth herein,
in accordance with the terms and conditions of this Agreement. Employee is
willing to serve as such in accordance with the terms and conditions of this
Agreement.
NOW THEREFORE, in consideration of the foregoing and of the mutual
covenants and agreements set forth herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
1. Effective Date. This Agreement is effective as of August 1, 1997 (the
--------------
"Effective Date").
2. Employment. Employee is hereby employed on the Effective Date as Vice
----------
President for Business Development of the Company. Employee's responsibilities
under this Agreement shall be in accordance with the policies and objectives
established by the Chief Executive Officer and the Board of Directors of the
Company and shall be consistent with the responsibilities of similarly situated
employees of comparable companies in similar lines of business.
3. Term. Employment under this Agreement shall be at will. Either of
----
Employee or the Company may terminate this Agreement at any time for any reason.
4. Extent of Service. During the employment period, and excluding any
-----------------
periods of vacation and sick leave to which Employee is entitled, Employee
agrees to devote his business time, attention, skill and efforts exclusively to
the faithful performance of his duties hereunder; provided, however, that it
shall not be a violation of this Agreement for Employee to (i) devote reasonable
periods of time to charitable and community activities, and/or (ii) manage
personal business interests and investments, so long as such activities do not
interfere with the performance of Employee's responsibilities under this
Agreement.
5. Compensation and Benefits.
-------------------------
(a) Base Salary. During the employment period, the Company will pay to
-----------
Employee a base salary in the amount of $60,000 per year ("Base Salary"), less
normal withholdings, payable in equal monthly or more frequent installments as
are customary under the Company's payroll practices from time to time. The
Board of Directors of the Company shall review Employee's Base Salary annually
and in its sole discretion, subject to approval of the Board of Directors of the
Company, may increase or decrease Employee's Base Salary from year to year. The
annual review of Employee's salary by the Board will consider, among other
things, Employee's own performance and the Company's performance.
(b) Bonuses. The Board of Directors in its sole discretion may, from time
-------
to time, declare and pay to Employee bonuses, whether in cash or otherwise.
(c) Incentive, Savings and Retirement Plans. During the employment period,
---------------------------------------
Employee shall be entitled to participate in all incentive, savings and
retirement plans, practices, policies and programs applicable generally to
similarly situated employees of the Company and its affiliated companies, and on
the same relative basis as such other similarly situated employees.
(d) Welfare Benefit Plans. During the employment period, Employee and
---------------------
Employee's family shall be eligible for participation in and shall receive all
benefits under welfare benefit plans, practices, policies and programs provided
by the Company and its affiliated companies (including, without limitation,
medical, prescription, dental, disability, employee life, group life, accidental
death and travel accident insurance plans and programs) to the extent applicable
generally to similarly situated employees of the Company and its affiliated
companies.
(e) Expenses. During the employment period, Employee shall be entitled to
--------
receive prompt reimbursement for all reasonable expenses incurred by Employee in
accordance with the policies, practices and procedures of the Company and its
affiliated companies to the extent applicable generally to other similarly
situated employees of the Company and its affiliated companies.
(f) Fringe Benefits. During the employment period, Employee shall be
---------------
entitled to fringe benefits in accordance with the plans, practices, programs
and policies of the Company and its affiliated companies in effect for similarly
situated employees of the Company and its affiliated companies.
(g) Severance. If the Company elects for any reason at any time to
---------
terminate Employee's employment under this Agreement, the Company shall pay to
Employee all amounts due as salaries and bonuses up to the effective date of the
termination, plus an amount equal to the greater of $30,000 or six months' Base
Salary as severance pay.
6. Stock Option Grants. As additional consideration to enter into this
-------------------
Agreement, the Company has granted Employee options to purchase 7,391 shares of
the common stock of the Company, pursuant to an Option Agreement by and between
Employee and Company, dated as of the date of this Agreement.
7. Representations and Warranties. Employee hereby represents and warrants
------------------------------
to the Company that Employee is not a party to, or otherwise subject to, any
covenant not to compete with any person or entity, and Employee's execution of
this Agreement and performance of his obligations hereunder will not violate the
terms or conditions of any contract or obligation, written or oral, between
Employee and any other person or entity.
8. Restrictions on Conduct of Employee.
-----------------------------------
(a) General. Employee and the Company understand and agree that the
-------
purpose of the provisions of this Section 8 is to protect legitimate business
interests of the Company, as more fully described below, and is not intended to
eliminate Employee's post-employment competition with the Company per se, nor is
it intended to impair or infringe upon Employee's right to work, earn a living,
or acquire and possess property from the fruits of his labor. Employee hereby
acknowledges that the post-employment restrictions set forth in this Section 8
are reasonable and that they do not, and will not, unduly impair his ability to
earn a living after the termination of this Agreement. Therefore, subject to
-2-
the limitations of reasonableness imposed by law upon the restrictions set forth
herein, Employee shall be subject to the restrictions set forth in this Section
8.
(b) Definitions. The following capitalized terms used in this Section 8
-----------
shall have the meanings assigned to them below, which definitions shall apply to
both the singular and the plural forms of such terms:
"Affiliates" shall mean Check into Cash Holdings, Inc., Check into
Cash of California, Inc., Check into Cash of Illinois, LLC, Check into Cash of
Indiana, LLC, Check into Cash of Iowa, Inc., Check into Cash of Kentucky, LLC,
Check into Cash of Missouri, Inc., Check into Cash of Nebraska, Inc., Check into
Cash of North Carolina, Inc., Check into Cash of Ohio, LLC, Check into Cash of
Wisconsin, LLC, Creditcorp of Tennessee, Inc., Creditors Adjustment Bureau,
Inc., Jones Management Services, Inc., Jones Properties, LLC, Preferred One,
LLC, and any other entities that may be formed in the future under the control
of the Company, any Affiliate or W. Allan Jones, Jr.;
"Competitive Services" means any services provided by Company and the
Affiliates at the Determination Date, including, without limitation, the
business of cashing checks, deferring deposit of checks for specified periods of
time, and extending short-term, unsecured credit.
"Confidential Information" means any confidential or proprietary
information possessed by the Company or the Affiliates or relating to its or
their business, including, without limitation, any confidential "know-how,"
customer lists, details of client or consultant contracts, current and
anticipated customer requirements, pricing policies, price lists, market
studies, business plans, operational methods, marketing plans or strategies,
product development techniques or plans, computer software programs (including
object code and source code), data and documentation, data base technologies,
systems, structures and architectures, inventions and ideas, past, current and
planned research and development, compilations, devices, methods, techniques,
processes, financial information and data, business acquisition plans, new
personnel acquisition plans and any other information that would constitute a
Trade Secret (as defined herein).
"Determination Date" means the date of termination of Employee's
employment with the Company for any reason whatsoever or any earlier date
(during the employment period) of an alleged breach of the Restrictive Covenants
by Employee.
"Person" means any individual or any corporation, partnership, joint
venture, association or other entity or enterprise.
"Principal or Representative" means a principal, owner, partner,
shareholder, joint venturer, investor, member, trustee, director, officer,
manager, employee, agent, representative or consultant.
"Protected Employees" means persons who were employed by the Company
or the Affiliates at any time within six (6) months prior to the Determination
Date.
"Restricted Period" means the employment period and a period extending
two (2) years from the date of termination of Employee's employment under this
Agreement; provided, however, in the event the Confidential Information
constitutes a Trade Secret, the Restricted Period shall be five (5) years.
-3-
"Restrictive Covenants" means the restrictive covenants contained in
Section 8(c) hereof.
"Trade Secret" means any item of Confidential Information that
constitutes a "trade secret" under the common law or statutory law of the State
of Tennessee.
(c) Restrictive Covenants.
---------------------
(i) Restriction on Disclosure and Use of Confidential Information.
-------------------------------------------------------------
Employee understands and agrees that the Confidential Information constitutes a
valuable asset of the Company and its Affiliates, and may not be converted to
Employee's own use. Accordingly, Employee hereby agrees that Employee shall
not, directly or indirectly, at any time during the Restricted Period reveal,
divulge, or disclose to any Person not expressly authorized by the Company any
Confidential Information, and Employee shall not, directly or indirectly, at any
time during the Restricted Period use or make use of any Confidential
Information in connection with any business activity other than that of the
Company.
(ii) Nonsolicitation of Protected Employees. Employee understands and
--------------------------------------
agrees that the relationship between the Company and its Affiliates and each of
its Protected Employees constitutes a valuable asset of the Company and its
Affiliates and may not be converted to Employee's own use. Accordingly,
Employee hereby agrees that during the Restricted Period Employee shall not
directly or indirectly on Employee's own behalf or as a Principal or
Representative of any Person or otherwise solicit or induce any Protected
Employee to terminate his or her employment relationship with the Company.
(iii) Noncompetition with the Company. During the Restricted Period,
-------------------------------
Employee, unless acting in accordance with the Company's prior written consent,
will not directly provide any Competitive Services to, and will not, directly or
indirectly, (i) own, manage, operate, join, control, finance or participate in
the ownership, management, operation, control or financing of, or (ii) be
connected as a Principal or Representative or otherwise with, or (iii) permit
Employee's name to be used by or in connection with, any Person engaged in
providing Competitive Services to any Person conducting business activities
within a ten (10) mile radius of any store location from which the Company or
any Affiliate is or was engaged in the provision of the Competitive Services on
the Determination Date, including any store location for which a lease had been
entered into by the Company or any Affiliate on or before the Determination Date
but was not then operational; provided, however, that the provisions of this
Agreement shall not be deemed to prohibit the ownership by Employee of any
securities of the Company or its affiliated entities or not more than five
percent (5%) of any class of securities of any corporation having a class of
securities registered pursuant to the Securities Exchange Act of 1934, as
amended. The provisions of this Section 8(c)(iii) shall not apply in the event
that the employee is terminated by the Company.
(d) Exceptions from Disclosure Restrictions. Anything herein to the
---------------------------------------
contrary notwithstanding, Employee shall not be restricted from disclosing or
using Confidential Information that: (a) is or becomes generally available to
the public other than as a result of an unauthorized disclosure by Employee or
his agent; (b) becomes available to Employee in a manner that is not in
contravention of applicable law from a source (other than the Company or its
Affiliates or one of its or their officers, employees, agents or
representatives) that is not bound by a confidential relationship with the
Company or its Affiliates or by a confidentiality or other similar agreement;
(c) was known to Employee on a non-confidential basis and not in contravention
of applicable law or a confidentiality or other similar agreement before its
disclosure to Employee by the Company or its Affiliates or one of its
-4-
or their officers, employees, agents or representatives; or (d) is required to
be disclosed by law, court order or other legal process; provided, however, that
in the event disclosure is required by law, court order or other legal process,
Employee shall provide the Company with prompt notice of such requirement so
that the Company may seek an appropriate protective order prior to any such
required disclosure by Employee.
(e) Enforcement of Restrictive Covenants.
------------------------------------
(i) Rights and Remedies Upon Breach. In the event Employee breaches,
-------------------------------
or threatens to commit a breach of, any of the provisions of the Restrictive
Covenants, the Company shall have the following rights and remedies, which shall
be independent of any others and severally enforceable, and shall be in addition
to, and not in lieu of, any other rights and remedies available to the Company
at law or in equity:
A. the right and remedy to enjoin, preliminarily and
permanently, Employee from violating or threatening to violate the Restrictive
Covenants and to have the Restrictive Covenants specifically enforced by any
court of competent jurisdiction, it being agreed that any breach or threatened
breach of the Restrictive Covenants would cause irreparable injury to the
Company or an Affiliate and that money damages would not provide an adequate
remedy to the Company or the Affiliate; and
B. the right and remedy to require Employee to account for
and pay over to the Company all compensation, profits, monies, accruals,
increments or other benefits derived or received by Employee as the result of
any transactions constituting a breach of the Restrictive Covenants.
(ii) Severability of Covenants. Employee acknowledges and agrees that
-------------------------
the Restrictive Covenants are reasonable and valid in time and scope and in all
other respects. If any court determines that any of the Restrictive Covenants,
or any part thereof, are invalid or unenforceable, the remainder of the
Restrictive Covenants shall not thereby be affected and shall be given full
effect, without regard to the invalid portions.
(iii) Attorneys' Fees. In any action relating to the enforcement of
---------------
the Restrictive Covenants, the prevailing party in such action shall be entitled
to be paid any and all costs and expenses incurred by him or it in enforcing or
establishing his or its rights thereunder, including, without limitation,
reasonable attorneys' fees, whether suit be brought or not, and whether or not
incurred in trial, bankruptcy or appellate proceedings.
9. Assignment and Successors.
-------------------------
(a) Employee. This Agreement is personal to Employee and without the
--------
prior otherwise than by will or the laws of descent and distribution. This
Agreement shall inure to the benefit of and be enforceable by Employee's legal
representatives.
(b) The Company. This Agreement shall inure to the benefit of and be
-----------
binding upon the Company and its successors and assigns. The Company will
require any successor to all or substantially all of the business and/or assets
of the Company (whether direct or indirect, by purchase, merger, consolidation
or otherwise) to assume expressly and agree to perform this Agreement in the
same manner and to the same extent that the Company would be required to perform
it if no such
-5-
succession had taken place. As used in this Agreement, "the Company" shall mean
the Company as hereinbefore defined and any successor to its business and/or
assets as aforesaid which assumes and agrees to perform this Agreement by
operation of law or otherwise.
10. Miscellaneous.
-------------
(a) Waiver. Failure of either party to insist, in one or more instances,
------
on performance by the other in strict accordance with the terms and conditions
of this Agreement shall not be deemed a waiver or relinquishment of any right
granted in this Agreement or of the future performance of any such term or
condition or of any other term or condition of this Agreement, unless such
waiver is contained in a writing signed by the party making the waiver.
(b) Severability. If any provision or covenant, or any part thereof, of
------------
this Agreement should be held by any court to be invalid, illegal or
unenforceable, either in whole or in part, such invalidity, illegality or
unenforceability shall not affect the validity, legality or enforceability of
the remaining provisions or covenants, or any part thereof, of this Agreement,
all of which shall remain in full force and effect.
(c) Other Agents. Nothing in this Agreement is to be interpreted as
------------
limiting the Company from employing other personnel on such terms and conditions
as may be satisfactory to it.
(d) Entire Agreement. Except as provided herein, this Agreement contains
----------------
the entire agreement between the Company and Employee with respect to the
subject matter hereof, and it supersedes and invalidates any previous agreements
or contracts between them which relate to the subject matter hereof, including,
but not limited to that certain Employment, Confidentiality and Non-Competition
Agreement that was previously executed by and between Employee and the Company.
No representations, inducements, promises or agreements, oral or otherwise,
which are not embodied herein shall be of any force or effect.
(e) Governing Law. Except to the extent preempted by federal law, the
-------------
laws of the State of Tennessee and, without regard to Tennessee's conflict of
laws principles, shall govern this Agreement in all respects, whether as to its
validity, construction, capacity, performance or otherwise.
(f) Notices. All notices, requests, demands and other communications
-------
required or permitted hereunder shall be in writing and shall be deemed to have
been duly given if delivered or three days after mailing if mailed, first class,
certified mail, postage prepaid:
To Company: Check into Cash, Inc.
Post Office Box 1015
Cleveland, Tennessee 37364-1015
Facsimile No. (423) 476-9200
Attention: W. Allan Jones, Jr.,
Chairman and Chief Executive Officer
To Employee: Ed Ryan
Cleveland, Tennessee
Any party may change the address to which notices, requests, demands and other
communications shall be delivered or mailed by giving notice thereof to the
other party in the same manner provided herein.
-6-
(g) Amendments and Modifications. This Agreement may be amended or
----------------------------
modified only by a writing signed by both parties hereto, which makes specific
reference to this Agreement.
IN WITNESS WHEREOF, the parties hereto have duly executed and delivered this
Employment, Confidentiality and Non-Competition Agreement as of the date first
above written.
CHECK INTO CASH, INC.
By: /s/ W. Allan Jones, Jr.
------------------------------
W. Allan Jones, Jr.
Chairman of the Board
and Chief Executive Officer
EMPLOYEE:
/s/ Ed Ryan
-----------------------------------
Ed Ryan
-7-
EX-10.6.3
10
EMPLOYMENT AGREEMENT
EXHIBIT 10.6.3
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is made and entered into this
28th day of April, 1998 by and among Check into Cash, Inc., a Delaware
corporation (hereinafter, the "Company"), W. Allan Jones, Jr. (hereinafter
"Jones"), and J. Samuel Choate, Jr. (hereinafter, "Executive").
BACKGROUND
----------
The Company desires to engage Executive in Executive capacities set forth
herein, in accordance with the terms and conditions of this Agreement.
Executive is willing to serve as such in accordance with the terms and
conditions of this Agreement.
NOW THEREFORE, in consideration of the foregoing and of the mutual
covenants and agreements set forth herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
1. Effective Date. This Agreement is effective as of May 1, 1998 (the
--------------
"Effective Date").
2. Employment. Executive is hereby employed on the Effective Date as the
----------
Executive Vice President and General Counsel of the Company. Executive's
responsibilities under this Agreement shall be in accordance with the policies
and objectives established by the Chief Executive Officer and the Board of
Directors of the Company and shall be consistent with the responsibilities of
similarly situated executives of comparable companies in similar lines of
business. In his capacity as Executive Vice President and General Counsel of
the Company, Executive will report directly to the Chief Executive Officer of
the Company.
3. Employment Period. Unless earlier terminated herein in accordance with
-----------------
Section 7 hereof, Executive's employment shall be for a three-year term (the
"Employment Period"), beginning on the Effective Date. The Employment Period
shall, without further action by Executive or the Company, be extended for an
additional one-year period on each anniversary of the Effective Date; provided,
however, that either party may, by notice to the other given at any time prior
to such next anniversary of the Effective Date, cause the Employment Period to
cease to extend automatically. Upon such notice, the Employment Period shall
terminate upon the expiration of the then-current term, including any prior
extensions.
4. Extent of Service. During the Employment Period, and excluding any
-----------------
periods of vacation and sick leave to which Executive is entitled, Executive
agrees to devote his business time, attention, skill and efforts exclusively to
the faithful performance of his duties hereunder; provided, however, that it
shall not be a violation of this Agreement for Executive to (i) devote
reasonable periods of time to charitable and community activities, and/or (ii)
manage personal business interests and investments (including winding up of the
affairs of Choate & Associates, P.C.), so long as such activities do not
interfere with the performance of Executive's responsibilities under this
Agreement. Executive shall re-establish his principal residence in the
Chattanooga/Cleveland, Tennessee area as soon as practicable and shall commence
service at the Company's headquarters on or before July 6, 1998 (the date on
which such service actually commences, the "Relocation Date").
5. Compensation and Benefits.
-------------------------
(a) Base Salary. During the Employment Period, the Company will pay to
-----------
Executive a base salary in the amount of $325,000 ("Base Salary"), less normal
withholdings, payable in equal monthly or more frequent installments as are
customary under the Company's payroll practices from time to time. The Board of
Directors of the Company shall review Executive's Base Salary annually and in
its sole discretion may increase Executive's Base Salary from year to year. The
annual review of Executive's salary by the Board will consider, among other
things, Executive's own performance and the Company's performance.
(b) Bonus. Bonuses will be made on a discretionary basis in accordance
-----
with the Company's incentive plans referred to in subsection (c) below.
(c) Incentive, Savings and Retirement Plans. During the Employment
_______________________________________
Period, Executive shall be entitled to participate in all incentive (including
cash bonus and stock-based), savings and retirement plans, practices, policies
and programs applicable generally to similarly situated officers of the Company
and its affiliated companies, and on the same relative basis as such other
similarly situated officers.
(d) Welfare Benefit Plans. During the Employment Period, Executive and
---------------------
Executive's family shall be eligible for participation in and shall receive all
benefits under welfare benefit plans, practices, policies and programs provided
by the Company and its affiliated companies (including, without limitation,
medical, prescription, dental, disability, employee life, group life, accidental
death and travel accident insurance plans and programs) to the extent applicable
generally to similarly situated officers of the Company and its affiliated
companies.
(e) Expenses. During the Employment Period, Executive shall be entitled
________
to receive prompt reimbursement for all reasonable expenses incurred by
Executive in accordance with the policies, practices and procedures of the
Company and its affiliated companies to the extent applicable generally to other
similarly situated officers of the Company and its affiliated companies.
(f) Fringe Benefits. During the Employment Period, Executive shall be
---------------
entitled to fringe benefits in accordance with the plans, practices, programs
and policies of the Company and its affiliated companies in effect for similarly
situated officers of the Company and its affiliated companies.
(g) Automobile. Without limiting the foregoing, during the Employment
----------
Period, commencing on the Relocation Date, the Company shall provide to
Executive a 1996 or later Mercedes model 400 or equivalent automobile. If such
automobile is leased by the
-2-
Company, Executive shall have the option to purchase such automobile upon
expiration of the lease term.
(h) Club Dues. Without limiting the foregoing, during the Employment
---------
Period, the Company shall pay Executive's initiation and monthly membership dues
at the Chattanooga Golf and Country Club or the Cleveland Golf and Country Club.
(i) Insurance Premiums. Without limiting the foregoing, during the
------------------
Employment Term, the Company shall pay on Executive's behalf premiums of
$4,042.50 per quarter on Executive's Manulife Financial Variable Universal Life
Insurance policy.
(j) Bar Expenses. Without limiting the foregoing, during the Employment
------------
Term, the Company shall pay all costs associated with maintaining Executive's
state Bar association memberships, including required continuing legal education
requirements.
(k) Moving Expenses. Without limiting the foregoing, the Company shall
---------------
reimburse Executive for all reasonable expenses incurred in packing and moving
Executive's personal and professional property from Alexandria, Virginia to the
Chattanooga/Cleveland, Tennessee area.
(l) Other Expenses. The Company shall pay directly to Choate &
--------------
Associates, P.C. for all reasonable expenses incurred in connection with the
winding up of the affairs of Choate & Associates, P.C. between May 1, 1998 and
June 30, 1998, including salaries of associates (other than ________________)
and secretary, rent and other expenses normally expended during the preceding
months of operation of Choate & Associates, P.C., in consideration of services
to be rendered to the Company by Choate & Associates, P.C. during that period.
6. Stock Option Award.
------------------
(a) As soon as practicable after the date hereof the Company shall grant
to Executive under the Company's 1997 Long Term Incentive Plan (the "Plan"), or
any successor plan, an option (the "Option") to purchase shares (the "Option
Shares") of the $0.01 par value common stock of the Company ("Common Stock").
The number of Option Shares subject to the Option and the exercise price per
Option Share shall be determined in accordance with the parties' mutual
understanding as reflected in correspondence contemporaneous with the execution
of this Agreement. The Option shall be exercisable as to one-fourth of the
Option Shares beginning on the Relocation Date and as to one-third of the
remaining Option Shares beginning on each of the first three anniversaries of
the date of grant; provided, that the Option shall become fully exercisable as
to all remaining Option Shares upon death or Disability (as defined below) of
Executive or upon a Change of Control (as such term is defined in the Plan) to
the extent provided in the Plan.
(b) Notwithstanding the foregoing, in the event that, prior to
consummation of an initial public offering of the Company's Common Stock, all or
substantially all of the equity
-3-
interest in the Company shall be acquired by any person (whether by merger,
share exchange or otherwise), Executive shall be entitled to receive, upon
consummation of such acquisition, consideration having an aggregate value equal
to the sum of (i) 3% of the aggregate consideration paid in such acquisition
(including such consideration as may be paid to Executive pursuant to this
paragraph (b)), minus (ii) the fair market value of any consideration received
by Executive in consideration of surrender of the Option or received in respect
of Option Shares. The consideration to be paid to Executive pursuant to this
paragraph (b) shall be in the same form as that received by all other
shareholders of the Company (provided that if shareholders receive a mix of
forms of consideration, Executive shall be entitled to receive the same mix of
forms of consideration and if shareholders are entitled to elect which form of
or mix of forms of consideration to receive, Executive shall be entitled to make
the same election). Payment of the consideration to which Executive is entitled
pursuant to this paragraph (b) shall be paid in the same manner and at
substantially the same time as the consideration paid to shareholders of the
Company.
7. Termination of Employment.
-------------------------
(a) Death, Retirement or Disability. Executive's employment shall
-------------------------------
terminate automatically upon Executive's death or Retirement during the
Employment Period. If the Company determines in good faith that the Disability
of Executive has occurred during the Employment Period (pursuant to the
definition of Disability set forth below), it may give to Executive written
notice in accordance with Section 14(f) of this Agreement of its intention to
terminate Executive's employment. In such event, Executive's employment with
the Company shall terminate effective on the 30th day after receipt of such
written notice by Executive (the "Disability Effective Date"), provided that,
within the 30 days after such receipt, Executive shall not have returned to
full-time performance of Executive's duties. For purposes of this Agreement,
"Disability" shall mean a mental or physical disability as determined by the
Board of Directors of the Company in accordance with standards and procedures
similar to those under the Company's employee long-term disability plan, if any.
At any time that the Company does not maintain such a long-term disability plan,
Disability shall mean the inability of Executive, as determined by the Board, to
substantially perform the essential functions of his regular duties and
responsibilities due to a medically determinable physical or mental illness
which has lasted (or can reasonably be expected to last) for a period of six
consecutive months. For purposes of this Agreement, "Retirement" shall mean
voluntary termination of employment after age 65.
(b) Termination for Cause. The Company may terminate Executive's
---------------------
employment during the Employment Period for Cause. For purposes of this
Agreement, "Cause" shall mean:
(i) the willful and continued failure of Executive to perform
substantially Executive's duties with the Company (other than any such failure
resulting from incapacity due to physical or mental illness), after a written
demand for substantial performance is delivered to Executive by the Board of
Directors of the Company which specifically identifies the manner in which such
Board believes that Executive has not substantially performed Executive's
duties, or
-4-
(ii) the willful engaging by Executive in illegal conduct or gross
misconduct the consequence of which is materially and demonstrably injurious to
the Company.
For purposes of this provision, no act or failure to act, on the part of
Executive, shall be considered "willful" unless it is done, or omitted to be
done, by Executive in bad faith or without reasonable belief that Executive's
action or omission was in the best interests of the Company. Any act, or
failure to act, based upon authority given pursuant to a resolution duly adopted
by the Board or based upon the advice of counsel for the Company shall be
conclusively presumed to be done, or omitted to be done, by Executive in good
faith and in the best interests of the Company. The cessation of employment of
Executive shall not be deemed to be for Cause unless and until there shall have
been delivered to Executive a copy of a resolution duly adopted by the
affirmative vote of not less than three-quarters of the entire membership of the
Board of Directors of the Company (excluding Executive, if then a director) at a
meeting of such Board called and held for such purpose (after reasonable notice
is provided to Executive and Executive is given an opportunity, together with
counsel, to be heard before such Board), finding that, in the good faith opinion
of such Board, Executive is guilty of the conduct described in subparagraph (i)
or (ii) above, and specifying the particulars thereof in detail.
(c) Good Reason. Executive's employment may be terminated by Executive
-----------
for Good Reason. For purposes of this Agreement, "Good Reason" shall mean:
(i) without the written consent of Executive, the assignment to
Executive of any duties materially inconsistent with Executive's position
(including status, offices, titles and reporting requirements), authority,
duties or responsibilities as contemplated by Section 2 of this Agreement, or
any other action by the Company which results in a material diminution in such
position, authority, duties or responsibilities, excluding for this purpose an
isolated, insubstantial and inadvertent action not taken in bad faith and which
is remedied by the Company promptly after receipt of notice thereof given by
Executive;
(ii) a reduction by the Company in Executive's Base Salary and
benefits as in effect on the Effective Date or as increased from time to time,
or the failure by the Company to increase Executive's Base Salary each year
during the Employment Period by an amount which at least equals, on a percentage
basis, the mean average percentage increase in base salary for all officers of
the Company, unless such failure to increase is based on nonarbitrary criteria
applied to Executive and other similarly-situated employees;
(iii) any purported termination by the Company of Executive's
employment otherwise than for Cause, death, Disability or Retirement;
(iv) any failure by the Company to comply with and satisfy Section
13(b) of this Agreement; or
(v) a termination by Executive for any reason during the 30-day
period immediately following the first anniversary of a Change in Control (as
defined in the Plan, or any successor plan).
-5-
(d) Notice of Termination. Any termination by the Company for Cause, or
---------------------
by Executive for Good Reason, shall be communicated by Notice of Termination to
the other party hereto given in accordance with Section 14(f) of this Agreement.
For purposes of this Agreement, a "Notice of Termination" means a written notice
which (i) indicates the specific termination provision in this Agreement relied
upon, (ii) to the extent applicable, sets forth in reasonable detail the facts
and circumstances claimed to provide a basis for termination of Executive's
employment under the provision so indicated, and (iii) if the Date of
Termination (as defined below) is other than the date of receipt of such notice,
specifies the termination date (which date shall be not less than 30 days after
the giving of such notice). The failure by Executive or the Company to set
forth in the Notice of Termination any fact or circumstance which contributes to
a showing of Good Reason or Cause shall not waive any right of Executive or the
Company, respectively, hereunder or preclude Executive or the Company,
respectively, from asserting such fact or circumstance in enforcing Executive's
or the Company's rights hereunder.
(e) Date of Termination. "Date of Termination" means (i) if Executive's
-------------------
employment is terminated by the Company for Cause, or by Executive for Good
Reason, the date of receipt of the Notice of Termination or any later date
specified therein, as the case may be, (ii) if Executive's employment is
terminated by the Company other than for Cause or Disability, the Date of
Termination shall be the date on which the Company notifies Executive of such
termination, (iii) if Executive's employment is terminated by reason of death,
Disability or Retirement, the Date of Termination shall be the date of death or
Retirement of Executive or the Disability Effective Date, as the case may be,
and (iv) if Executive's employment is terminated by Executive other than for
Good Reason, death, Disability or Retirement, the Date of Termination shall be
the date of specified in the notice of termination, which shall be not less than
30 days after the giving of such notice.
8. Obligations of the Company upon Termination.
-------------------------------------------
(a) Termination by Executive for Good Reason; Termination by the Company
--------------------------------------------------------------------
Other Than for Cause, Death, Disability or Retirement. If, during the
- -----------------------------------------------------
Employment Period, the Company shall terminate Executive's employment other than
for Cause, death, Disability or Retirement, or Executive shall terminate
employment for Good Reason, then in consideration of Executive's services
rendered prior to such termination and as reasonable compensation for his
compliance with the Restrictive Covenants in Section 12 hereof:
(i) the Company shall pay to Executive in a lump sum in cash within
30 days after the Date of Termination the aggregate of the following amounts:
A. the sum of (1) Executive's Base Salary through the Date of
Termination to the extent not theretofore paid, and (2) any
compensation previously deferred by Executive (together with any
accrued interest or earnings thereon) and any accrued vacation pay, in
each case to the extent not theretofore
-6-
paid (the sum of the amounts described in clauses (1) and (2) shall be
hereinafter referred to as the "Accrued Obligations"); and
B. the amount equal to two times the Executive's Base Salary in
effect as of the Date of Termination (provided, if Executive
terminates employment pursuant to Section 7(c)(v), the amount shall
equal the greater of (i) Executive's Base Salary in effect as of the
Date of Termination or (ii) the Base Salary to which Executive would
have been entitled during the then-remaining term of this Agreement
had such employment not been terminated, provided that in no event
shall the amount paid under this provision exceed two times
Executive's Base Salary in effect as of the Date of Termination) (the
"Severance Payment"); and
(ii) for one year after Executive's Date of Termination, or such
longer period as may be provided by the terms of the appropriate plan,
program, practice or policy, the Company shall continue benefits to
Executive and/or Executive's family at least equal to those which would
have been provided to them in accordance with the welfare plans, programs,
practices and policies described in Section 5(d) of this Agreement if
Executive's employment had not been terminated or, if more favorable to
Executive, as in effect generally at any time thereafter with respect to
other peer executives of the Company and its affiliated companies and their
families, provided, however, that if Executive becomes re-employed with
another employer and is eligible to receive medical or other welfare
benefits under another employer provided plan, the medical and other
welfare benefits described herein shall be secondary to those provided
under such other plan during such applicable period of eligibility
("Welfare Benefits"); and
(iii) to the extent not theretofore paid or provided, the Company
shall timely pay or provide to Executive any other amounts or benefits
required to be paid or provided or which Executive is eligible to receive
under any plan, program, policy or practice or contract or agreement of the
Company and its affiliated companies (such other amounts and benefits shall
be hereinafter referred to as the "Other Benefits"); and
(iv) the entire unvested portion of the Option shall immediately
vest.
(b) Death. If Executive's employment is terminated by reason of
-----
Executive's death during the Employment Period, this Agreement shall terminate
without further obligations to Executive's legal representatives under this
Agreement, other than for payment of Accrued Obligations, the timely payment or
provision of Other Benefits, the immediate vesting of the entire unvested
portion of the Option, and the repurchase of Option Shares as described in the
following sentence. If the Common Stock is not freely tradable by Executive on
the date of his death, by reason of securities restrictions or otherwise, the
Company shall, at the request of Executive's surviving spouse or executor or
administrator, repurchase some or all of such Option Shares then held by
Executive (or his estate) or acquired by Executive's estate upon exercise of the
Option at the then-current Fair Market Value of such Common Stock (as defined in
the Plan, except that if the Common Stock is not publicly traded, the Fair
Market Value shall be determined by appraisal
-7-
conducted by a recognized firm of independent appraisers), provided further,
that the Executive's surviving spouse or administrator shall not have the right
to require the Company to purchase any shares under this Section 8(b) if such
purchase would cause the Company to be in violation of any covenant in any loan
agreement to which the Company is a party that is in effect at the time of the
required purchase, unless the Company has failed to make reasonable efforts to
secure waiver of such covenants from the relevant lenders. Accrued Obligations
shall be paid to Executive's estate or beneficiary, as applicable, in a lump sum
in cash within 30 days of the Date of Termination. With respect to the provision
of Other Benefits, the term Other Benefits as utilized in this Section 8(b)
shall include, without limitation, and Executive's estate and/or beneficiaries
shall be entitled to receive, benefits under such plans, programs, practices and
policies relating to death benefits, if any, as applicable generally to
similarly situated officers of the Company and its affiliated companies and
their beneficiaries, and on the same basis as such similarly situated officers
and their beneficiaries.
(c) Disability or Retirement. If Executive's employment is terminated by
------------------------
reason of Executive's Disability or Retirement during the Employment Period,
this Agreement shall terminate without further obligations to Executive, other
than for payment of Accrued Obligations and the timely payment or provision of
Other Benefits, the immediate vesting of the entire unvested portion of the
Option, and the repurchase of Option Shares as described in the following
sentence. If the Common Stock is not freely tradable by Executive on the date
of his Disability or Retirement, by reason of securities restrictions or
otherwise, the Company shall, at the request of Executive or his legal
representative, repurchase some or all of such Option Shares then held by
Executive (or his legal representative) or acquired by Executive (or his legal
representative) upon exercise of the Option at the then-current Fair Market
Value of such Common Stock (as defined in the Plan, except that if the Common
Stock is not publicly traded, the Fair Market Value shall be determined by
appraisal conducted by a recognized firm of independent appraisers), provided
further, that the Executive or his legal representative shall not have the right
to require the Company to purchase any shares under this Section 8(c) if such
purchase would cause the Company to be in violation of any covenant in any loan
agreement to which the Company is a party that is in effect at the time of the
required purchase, unless the Company has failed to make reasonable efforts to
secure waiver of such covenants from the relevant lenders. Accrued Obligations
shall be paid to Executive in a lump sum in cash within 30 days of the Date of
Termination. With respect to the provision of Other Benefits, the term Other
Benefits as utilized in this Section 8(c) shall include, without limitation, and
Executive shall be entitled after the Date of Termination to receive, disability
or retirement and other benefits under such plans, programs, practices and
policies relating to disability or retirement, if any, as applicable generally
to similarly situated officers of the Company and its affiliated companies and
their families, and on the same basis as such similarly situated officers and
their families.
(d) Cause or Voluntary Termination without Good Reason. If Executive's
--------------------------------------------------
employment shall be terminated for Cause during the Employment Period, or if
Executive voluntarily terminates employment during the Employment Period without
Good Reason, this Agreement shall terminate without further obligations to
Executive, other than for payment of Accrued Obligations and the timely payment
or provision of Other Benefits.
-8-
9. Non-exclusivity of Rights. Nothing in this Agreement shall prevent or
-------------------------
limit Executive's continuing or future participation in any plan, program,
policy or practice provided by the Company or any of its affiliated companies
and for which Executive may qualify, nor, subject to Section 14(d), shall
anything herein limit or otherwise affect such rights as Executive may have
under any contract or agreement with the Company or any of its affiliated
companies. Amounts which are vested benefits or which Executive is otherwise
entitled to receive under any plan, policy, practice or program of or any
contract or agreement with the Company or any of its affiliated companies at or
subsequent to the Date of Termination shall be payable in accordance with such
plan, policy, practice or program or contract or agreement except as explicitly
modified by this Agreement.
10. Full Settlement; Release; Cost of Enforcement. The Company's obligation
---------------------------------------------
to make the payments provided for in this Agreement and otherwise to perform its
obligations hereunder shall not be affected by any set-off, counterclaim,
recoupment, defense or other claim, right or action which the Company may have
against Executive or others; provided, however, that the Company's obligation to
pay the Severance Payment in accordance with Section 8(a)(i)(B) hereof shall be
conditioned upon Executive's execution of a Release in favor of the Company in
substantially the form of Exhibit A attached hereto at the time such Severance
Payment becomes due and payable. The Company agrees to pay as incurred, to the
full extent permitted by law, all legal fees and expenses which Executive may
reasonably incur as a result of any contest (to the extent that Executive is
successful, in whole or in part, in such contest) by the Company, Executive or
others of the validity or enforceability of, or liability under, any provision
of this Agreement or any guarantee of performance thereof (including as a result
of any contest by Executive about the amount of any payment pursuant to this
Agreement), plus in each case interest on any delayed payment at the applicable
federal rate provided for in Section 7872(f)(2)(A) of the Internal Revenue Code
of 1986, as amended (the "Code").
11. Representations and Warranties. Executive hereby represents and warrants
------------------------------
to the Company that Executive is not a party to, or otherwise subject to, any
covenant not to compete with any person or entity, and Executive's execution of
this Agreement and performance of his obligations hereunder will not violate the
terms or conditions of any contract or obligation, written or oral, between
Executive and any other person or entity.
12. Restrictions on Conduct of Executive.
------------------------------------
(a) General. Executive and the Company understand and agree that the
-------
purpose of the provisions of this Section 12 is to protect legitimate business
interests of the Company, as more fully described below, and is not intended to
eliminate Executive's post-employment competition with the Company per se, nor
is it intended to impair or infringe upon Executive's right to work, earn a
living, or acquire and possess property from the fruits of his labor. Executive
hereby acknowledges that the post-employment restrictions set forth in this
Section 12 are reasonable and that they do not, and will not, unduly impair his
ability to earn a living after the termination of this Agreement. Therefore,
subject to the limitations of reasonableness imposed by law upon the
restrictions set forth herein, Executive shall be subject to the restrictions
set forth in this Section 12.
-9-
(b) Definitions. The following capitalized terms used in this Section 12
-----------
shall have the meanings assigned to them below, which definitions shall apply to
both the singular and the plural forms of such terms:
"Competitive Services" means any services provided by Company at the
Determination Date, including, but not limited to, the business of cashing
checks, deferring deposit of checks for specified periods of time, and extending
short-term, unsecured credit, but shall not include the practice of law or the
provision of legal services. It is particularly understood and agreed between
the Company and Executive that no post-employment restriction shall affect
Executive's ability to represent any person or company even, and especially, if
such person or company is engaged in a "Competitive Service" if Executive is
exclusively engaged in the private practice of law.
"Confidential Information" means any confidential or proprietary
information possessed by the Company or its affiliated entities or relating to
its or their business, including without limitation, any confidential "know-
how", customer lists, details of client or consultant contracts, current and
anticipated customer requirements, pricing policies price lists, market studies,
business plans, operational methods, marketing plans or strategies, product
development techniques or plans, computer software programs (including object
code and source code), data and documentation, data base technologies, systems,
structures and architectures, inventions and ideas, past, current and planned
research and development, compilations, devices, methods, techniques, processes,
financial information and data, business acquisition plans, new personnel
acquisition plans and any other information that would constitute a Trade Secret
(as defined herein).
"Determination Date" means the date of termination of Executive's
employment with the Company for any reason whatsoever or any earlier date
(during the Employment Period) of an alleged breach of the Restrictive Covenants
by Executive.
"Person" means any individual or any corporation, partnership, joint
venture, association or other entity or enterprise.
"Principal or Representative" means a principal, owner, partner,
shareholder, joint venturer, investor, member, trustee, director, officer,
manager, employee, agent, representative or consultant (but shall not include
service as non-employee legal counsel).
"Protected Employees" means employees of the Company who were employed
by the Company at any time within six (6) months prior to the Determination
Date.
"Restricted Period" means the Employment Period and a period extending
two (2) years from the later of (i) the Date of Termination or (ii) the last
date on which the Company makes a payment to Executive pursuant to Section 8 of
this Agreement; provided, however that such period shall be extended by any
length of time during which Executive is in breach of the Restricted Covenants.
-10-
"Restrictive Covenants" means the restrictive covenants contained in
Section 12(c) hereof.
"Trade Secret" means any item of Confidential Information that
constitutes a "trade secret(s)" under the common law or statutory law of the
State of Tennessee.
(c) Restrictive Covenants.
---------------------
(i) Restriction on Disclosure and Use of Confidential Information.
_____________________________________________________________
Executive understands and agrees that the Confidential Information
constitutes a valuable asset of the Company and its affiliated entities,
and may not be converted to Executive's own use. Accordingly, Executive
hereby agrees that Executive shall not, directly or indirectly, at any time
during the Restricted Period reveal, divulge, or disclose to any Person not
expressly authorized by the Company any Confidential Information, and
Executive shall not, directly or indirectly, at any time during the
Restricted Period use or make use of any Confidential Information in
connection with any business activity other than that of the Company;
provided, however, in the event the Confidential Information constitutes a
Trade Secret, the Restricted Period referred to above shall be five (5)
years.
(ii) Nonsolicitation of Protected Employees. Executive understands
______________________________________
and agrees that the relationship between the Company and each of its
Protected Employees constitutes a valuable asset of the Company and may not
be converted to Executive's own use. Accordingly, Executive hereby agrees
that during the Restricted Period Executive shall not directly or
indirectly on Executive's own behalf or as a Principal or Representative of
any Person or otherwise solicit or induce any Protected Employee to
terminate his or her employment relationship with the Company or to enter
into any relationship of employment, agency or independent contractorship
with any other Person.
(iii) Noncompetition with the Company. During the Restricted Period,
_______________________________
Executive, unless acting in accordance with the Company's prior written
consent, will not directly provide any Competitive Services to, and will
not, directly or indirectly, (i) own, manage, operate, join, control,
finance or participate in the ownership, management, operation, control or
financing of, or (ii) be connected as a Principal or Representative with,
or (iii) permit Executive's name to be used by or in connection with, any
Person engaged in providing Competitive Services to any Person conducting
business activities within a ten (10) mile radius of any store location
from which the Company is or was engaged in the provision of the
Competitive Services on the Determination Date, including any store
location for which a lease had been entered into by the Company on or
before the Determination Date but was not then operational; provided,
however, that the provisions of this Agreement shall not be deemed to
prohibit the ownership by Executive of any securities of the Company or its
affiliated entities or not more than five percent (5%) of any class of
securities of any corporation having a class of securities registered
pursuant to the Securities Exchange Act of 1934, as amended.
-11-
(d) Exceptions from Disclosure Restrictions. Anything herein to the
---------------------------------------
contrary notwithstanding, Executive shall not be restricted from disclosing or
using Confidential Information that: (a) is or becomes generally available to
the public other than as a result of an unauthorized disclosure by Executive or
his agent; (b) becomes available to Executive in a manner that is not in
contravention of applicable law from a source (other than the Company or its
affiliated entities or one of its or their officers, employees, agents or
representatives) that is not bound by a confidential relationship with the
Company or its affiliated entities or by a confidentiality or other similar
agreement; (c) was known to Executive on a non-confidential basis and not in
contravention of applicable law or a confidentiality or other similar agreement
before its disclosure to Executive by the Company or its affiliated entities or
one of its or their officers, employees, agents or representatives; or (d) is
required to be disclosed by law, court order or other legal process; provided,
however, that in the event disclosure is required by law, Executive shall
provide the Company with prompt notice of such requirement so that the Company
may seek an appropriate protective order prior to any such required disclosure
by Executive.
(e) Enforcement of Restrictive Covenants.
------------------------------------
(i) Rights and Remedies Upon Breach. In the event Executive breaches,
_______________________________
or threatens to commit a breach of, any of the provisions of the
Restrictive Covenants, the Company shall have the following rights and
remedies, which shall be independent of any others and severally
enforceable, and shall be in addition to, and not in lieu of, any other
rights and remedies available to the Company at law or in equity:
A. the right and remedy to enjoin, preliminarily and
permanently, Executive from violating or threatening to violate the
Restrictive Covenants and to have the Restrictive Covenants specifically
enforced by any court of competent jurisdiction, it being agreed that any
breach or threatened breach of the Restrictive Covenants would cause
irreparable injury to the Company and that money damages would not provide
an adequate remedy to the Company; and
B. the right and remedy to require Executive to account for and
pay over to the Company all compensation, profits, monies, accruals,
increments or other benefits derived or received by Executive as the result
of any transactions constituting a breach of the Restrictive Covenants.
(ii) Severability of Covenants. Executive acknowledges and agrees
_________________________
that the Restrictive Covenants are reasonable and valid in time and scope
and in all other respects. If any court determines that any of the
Restrictive Covenants, or any part thereof, are invalid or unenforceable,
the remainder of the Restrictive Covenants shall not thereby be affected
and shall be given full effect, without regard to the invalid portions.
(iii) Attorneys' Fees. In any action relating to the enforcement of
_______________
the Restrictive Covenants, the prevailing party in such action shall be
entitled to be paid any and all costs and expenses incurred by him or it in
enforcing or establishing his or its rights
-12-
thereunder, including, without limitation, reasonable attorneys' fees,
whether suit be brought or not, and whether or not incurred in trial,
bankruptcy or appellate proceedings.
13. Assignment and Successors.
-------------------------
(a) Executive. This Agreement is personal to Executive and without the
_________
prior written consent of the Company shall not be assignable by Executive
otherwise than by will or the laws of descent and distribution. This Agreement
shall inure to the benefit of and be enforceable by Executive's legal
representatives.
(b) The Company. This Agreement shall inure to the benefit of and be
___________
binding upon the Company and its successors and assigns. The Company will
require any successor to all or substantially all of the business and/or assets
of the Company (whether direct or indirect, by purchase, merger, consolidation
or otherwise) to assume expressly and agree to perform this Agreement in the
same manner and to the same extent that the Company would be required to perform
it if no such succession had taken place. As used in this Agreement, "the
Company" shall mean the Company as hereinbefore defined and any successor to its
business and/or assets as aforesaid which assumes and agrees to perform this
Agreement by operation of law or otherwise.
(c) Jones. This Agreement is personal to Jones and without the prior
_____
written consent of Executive shall not be assignable by Jones otherwise than by
will or the laws of descent and distribution.
14. Personal Guaranty. Jones is entering into this Agreement for the sole
-----------------
purpose of guaranteeing the obligations of the Company hereunder. Jones hereby
irrevocably and unconditionally guarantees (the "Guaranty") the due and punctual
payment and performance when due of the Company's obligations under this
Agreement (the "Guaranteed Obligations"). This Guaranty is a guaranty of
payment, and not of collection, and an obligation of Jones for his own account.
Accordingly, Executive shall not be obligated or required before enforcing this
Guaranty against Jones: (a) to pursue any right or remedy Executive may have
against the Company or commence any suit or other proceeding against the Company
in any court or other tribunal; (b) to make any claim in a liquidation or
bankruptcy of the Company; or (c) to make demand of the Company. Jones
guarantees that the Guaranteed Obligations will be paid strictly in accordance
with the terms of this Agreement, regardless of any law, regulation or order now
or hereafter in effect in any jurisdiction affecting any of such terms or the
rights of Executive with respect thereto. The liability of Jones under this
Guaranty shall be absolute and unconditional in accordance with its terms and
shall remain in full force and effect without regard to, and shall not be
released, suspended, discharged, terminated or otherwise affected by, any
circumstance or occurrence whatsoever, provided that this Guaranty shall expire
and shall be of no further force or effect from and after consummation of an
initial public offering of the Company's Common Stock. Jones, to the fullest
extent permitted by law, hereby waives notice of acceptance hereof or any
presentment, demand, protest or notice of any kind, and any other act or thing,
or omission or delay to do any other act or thing, which in any manner or to any
extent might vary the risk of Jones or which otherwise might operate to
discharge Jones from its obligations hereunder. Jones
-13-
shall be subrogated to the rights of Executive hereunder in the event and to the
extent that Jones makes any payment to Executive pursuant to this Guaranty.
15. Miscellaneous.
-------------
(a) Waiver. Failure of either party to insist, in one or more instances,
------
on performance by the other in strict accordance with the terms and conditions
of this Agreement shall not be deemed a waiver or relinquishment of any right
granted in this Agreement or of the future performance of any such term or
condition or of any other term or condition of this Agreement, unless such
waiver is contained in a writing signed by the party making the waiver.
(b) Severability. If any provision or covenant, or any part thereof, of
------------
this Agreement should be held by any court to be invalid, illegal or
unenforceable, either in whole or in part, such invalidity, illegality or
unenforceability shall not affect the validity, legality or enforceability of
the remaining provisions or covenants, or any part thereof, of this Agreement,
all of which shall remain in full force and effect.
(c) Other Agents. Nothing in this Agreement is to be interpreted as
------------
limiting the Company from employing other personnel on such terms and conditions
as may be satisfactory to it.
(d) Entire Agreement. Except as provided herein, this Agreement contains
----------------
the entire agreement between the Company and Executive with respect to the
subject matter hereof, and it supersedes and invalidates any previous agreements
or contracts between them which relate to the subject matter hereof. No
representations, inducements, promises or agreements, oral or otherwise, which
are not embodied herein shall be of any force or effect.
(e) Governing Law. Except to the extent preempted by federal law, and
-------------
without regard to conflict of laws principles, the laws of the State of
Tennessee shall govern this Agreement in all respects, whether as to its
validity, construction, capacity, performance or otherwise.
(f) Notices. All notices, requests, demands and other communications
-------
required or permitted hereunder shall be in writing and shall be deemed to have
been duly given if delivered or three days after mailing if mailed, first class,
certified mail, postage prepaid:
To Company Check into Cash, Inc.
and Jones: Post Office Box 1015
Cleveland, Tennessee 37364-1015
Facsimile No. (423) 476-9200
Attention: W. Allan Jones, Jr.,
Chairman and Chief Executive Officer
-14-
To Executive: J. Samuel Choate, Jr.
921 King Street
Alexandria, VA 22314
Any party may change the address to which notices, requests, demands and other
communications shall be delivered or mailed by giving notice thereof to the
other party in the same manner provided herein.
(g) Amendments and Modifications. This Agreement may be amended or
----------------------------
modified only by a writing signed by both parties hereto, which makes specific
reference to this Agreement.
(signatures on following page)
-15-
IN WITNESS WHEREOF, the parties hereto have duly executed and delivered
this Employment Agreement as of the date first above written.
CHECK INTO CASH, INC.
By: /s/ W. Allan Jones, Jr.
-----------------------------
W. Allan Jones, Jr.
Chairman of the Board
and Chief Executive Officer
JONES:
/s/ W. Allan Jones, Jr.
-----------------------------------
W. Allan Jones, Jr.
EXECUTIVE:
/s/ J. Samuel Choate, Jr.
-----------------------------------
J. Samuel Choate, Jr.
-16-
NON-QUALIFIED STOCK OPTION AGREEMENT
under the
CHECK INTO CASH, INC.
1997 LONG-TERM INCENTIVE PLAN
Optionee: J. Samuel Choate, Jr.
Number Shares Subject to Option: 33,600
Exercise Price per Share: $59.00
Date of Grant: May 1, 1998
1. Grant of Option. Check into Cash, Inc. (the "Corporation") hereby
---------------
grants to the Optionee named above (the "Optionee"), under the Check into Cash,
Inc. 1997 Long-Term Incentive Plan (the "Plan"), a Non-Qualified Stock Option to
purchase, on the terms and conditions set forth in this agreement (this "Option
Agreement"), the number of shares indicated above of the Corporation's common
stock (the "Stock"), at the exercise price per share set forth above (the
"Option"). Capitalized terms used herein and not otherwise defined shall have
the meanings assigned such terms in the Plan, or, to the extent not defined
therein, in the Employment Agreement, dated as of April 28, 1998, between the
Corporation and Grantee (the "Employment Agreement").
2. Vesting of Option. Unless the exercisability of the Option is
-----------------
accelerated in accordance with Article 13 of the Plan or the terms of any
Employment Agreement between Optionee and the Corporation (the "Employment
Agreement"), the Option shall vest (become exercisable) in accordance with the
following schedule.
Date Percent of Option Shares Vested
---- -------------------------------
Relocation Date (as defined 25%
in the Employment Agreement)
May 1, 1999 50%
May 1, 2000 75%
May 1, 2001 100%
3. Period of Option and Limitations on Right to Exercise. The Option
-----------------------------------------------------
will, to the extent not previously exercised, lapse under the earliest of the
following circumstances, provided, however, that the Committee may, prior to the
lapse of the Option under the circumstances described in paragraphs (b), (c) and
(d) below, provide in writing that the Option will extend until a later date:
(a) The Option shall lapse as of 5:00 p.m., Eastern Time, on the
day immediately prior to the tenth anniversary of the date of the grant
(the "expiration Date").
(b) The Option shall lapse three months after the Optionee's
termination of employment for any reason other than the Optionee's death
or Disability; provided, however, that if the Optionee's employment is
terminated by the Corporation for Cause or by the Optionee (other than
for Good Reason) without the consent of the Corporation, the Option
shall lapse immediately.
(c) If the Optionee's employment terminates by reason of
Disability, the Option shall lapse one year after the date of the
Optionee's termination of employment.
(d) If the Optionee dies while employed, or during the three-
month period described in subsection (b) above during the one-year
period described in subsection (c) above and before the Option otherwise
lapses, the Option shall lapse one year after the date of the Optionee's
death. Upon the Optionee's death, the Option may be exercised by the
Optionee's beneficiary.
If the Optionee or his beneficiary exercises an Option after termination
of employment, the Option may be exercised only with respect to the shares that
were otherwise vested on the Optionee's termination of employment (including
vesting by acceleration in accordance with Article 13 of the Plan or the
Employment Agreement).
4. Exercise of Option. The Option shall be exercised by written
------------------
notice directed to the Secretary of the Corporation at the principal executive
offices of the Corporation in substantially the form attached hereto as Exhibit
A, or such other form as the Committee may approve. Such written notice shall
be accompanied by full payment in cash, shares of Stock previously acquired by
the Optionee, or any combination thereof, for the number of shares specified in
such written notice; provided, however, that if shares of Stock are used to pay
the exercise price, such shares must have been held by the Optionee for at least
six months. The Fair Market Value of the surrendered Stock as of the date of the
exercise shall be determined in valuing Stock used in payment of the exercise
price. To the extent permitted under Regulation T of the Federal Reserve Board,
and subject to applicable securities laws, the Option may be exercised through a
broker in a so-called "cashless exercise" whereby the broker sells the Option
shares and delivers cash sales proceeds to the Corporation in payment of the
exercise price and all withholding tax obligations, if any (whether federal,
state or local), imposed on the Corporation by reason of the exercise of the
Option (the "Withholding Tax Obligations"). The Committee may, in the exercise
of its discretion, but need not, allow the Optionee to pay the exercise price by
directing the Corporation to withhold from the shares of Stock that would
otherwise be issued upon exercise of the Option that number of shares having a
Fair Market on the exercise dated equal to the exercise price and the
Withholding Obligations, all as determined pursuant to rules and procedures
established by the Committee.
Subject to the terms of this Option Agreement, the Option may be
exercised at any time and without regard to any other option held by the
Optionee to purchase stock of the Corporation.
5. Participation in Shareholder Agreement Execution of this Option
--------------------------------------
Agreement shall constitute a writing, pursuant to Section 7.2 of the Check into
Cash, Inc. Shareholder Agreement (the "Shareholder Agreement"), evidencing the
Optionee's agreement to become a "Shareholder" under the Shareholder Agreement.
Execution of the Option Agreement by the Optionee shall have the same effect as
execution of a counterpart to the Shareholder Agreement.
6. Limitations of Rights The Option does not confer to the Optionee or
---------------------
Optionee's personal representative any rights of a shareholder of the
Corporation unless and until shares of Stock are in fact issued to such a person
in connection with the exercise of the Option, except for those rights and
obligations specifically provided to the Optionee pursuant to the Shareholder
Agreement. Nothing in this Option Agreement shall interfere with or limit in any
way the right of the Corporation or any Subsidiary to terminate the Optionee's
employment at any time, nor confer upon the Optionee any right to continue in
the employ of the Corporation or any Subsidiary.
7. Stock Reserve The Corporation shall at all times during the term of
-------------
this Option Agreement reserve and keep available such number of shares of Stock
as will be sufficient to satisfy the requirements of this Option Agreement.
8. Optionee's Covenant The Optionee hereby agrees to use his best
-------------------
efforts to provide services to the Corporation in a workmanlike manner and to
promote the Corporation's interests.
9. Restrictions on Transfer and Pledge The Option may not be pledged,
-----------------------------------
encumbered, or hypothecated to or in favor of any party other than the
Corporation or a Parent or Subsidiary, or be subject to any lien, obligation, or
liability of the Optionee to any other party other than the Corporation or a
Parent or Subsidiary. The Option is not assignable or transferable by the
Optionee other than by will or the laws of descent and distribution; provided,
however, that the Committee may (but need not) permit other transfers where the
Committee concludes that such transferability (i) does not result in a
accelerated taxation and (ii) is otherwise appropriate and desirable, taking
into account any state or federal tax or securities laws applicable to
transferable options. The Option may be exercised during the lifetime of the
Optionee only by the Optionee or by the Optionee's legal representative.
10. Restrictions on Issuance of Shares If at any time the Board shall
----------------------------------
determine in its discretion, that listing, registration or qualification of the
shares of Stock covered by the Option or the Optionee's legal representative
upon any securities exchange or under any state or federal law, or the consent
or approval of any governmental regulatory body, is necessary or desirable as a
condition to the exercise of the Option, the Option may not be exercised in
whole or in part unless and until such listing, registration, qualification,
consent or approval shall have been effected or obtained free of any conditions
not acceptable to the Board.
11. Plan Controls The terms contained in the Plan are incorporated into
-------------
and made a part of this Option Agreement and this Option Agreement shall be
governed by and construed in accordance with the Plan. In the event of any
actual or alleged conflict between the provisions of the Plan and the provisions
of this Option Agreement, the provisions of the Plan shall be controlling and
determinative.
-3-
12. Successors. This Option Agreement shall be binding upon any
----------
successor of the Corporation, in accordance with the terms of this Option
Agreement and the Plan.
13. Severability. If any one or more of the provisions contained in
------------
this Option Agreement are invalid, illegal or unenforceable, the other
provisions of this Option Agreement will be construed and enforced as if the
invalid, illegal or unenforceable provision had never been included.
14. Notice. Notices and communications under this Option Agreement
------
must be in writing and either personally delivered or sent by registered or
certified United States mail, return receipt requested, postage prepaid. Notices
to the Corporation must be addressed to:
Check into Cash, Inc.
205 Second Street, N.W.
The Jones Building
Cleveland, Tennessee 37311
Attn: W. Allan Jones, Jr.
or any other address designated by the Corporation in a written notice to the
Optionee. Notices to the Optionee will be directed to the address of the
Optionee then currently on file with Corporation, or at any other address given
by the Optionee in a written notice to the Corporation.
IN WITNESS WHEREOF, Check into Cash, Inc., acting by and through its
duly authorized officers, has caused this Option Agreement to be executed, and
the Optionee has executed this Option Agreement, all as of the day and year
first above written.
CHECK INTO CASH, INC.
By: /s/ W. Allan Jones, Jr.
---------------------------------
Name: W. Allan Jones, Jr.
Title: Chairman & CEO
OPTIONEE: /s/ J. Samuel Choate, Jr.
------------------------------------
J. SAMUEL CHOATE, JR.
-4-
EX-10.6.4
11
EMPLOYMENT AGREEMENT
EXHIBIT 10.6.4
EMPLOYMENT, CONFIDENTIALITY
AND NON-COMPETITION AGREEMENT
-----------------------------
THIS EMPLOYMENT, CONFIDENTIALITY AND NON-COMPETITION AGREEMENT ("Agreement")
is made and entered into as of the 1st day of May, 1998 by and between Check
into Cash, Inc., a Delaware corporation (hereinafter, the "Company"), and
Frederick Krosner (hereinafter, "Employee").
BACKGROUND
----------
The Company desires to engage Employee in the capacities set forth herein, in
accordance with the terms and conditions of this Agreement. Employee is willing
to serve as such in accordance with the terms and conditions of this Agreement.
NOW THEREFORE, in consideration of the foregoing and of the mutual covenants
and agreements set forth herein, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. Effective Date. This Agreement is effective as of May 1, 1998 (the
--------------
"Effective Date").
2. Employment. Employee is hereby employed on the Effective Date as Vice
----------
President, Treasurer and Controller of the Company. Employee's responsibilities
under this Agreement shall be in accordance with the policies and objectives
established by the Chief Executive Officer and the Board of Directors of the
Company and shall be consistent with the responsibilities of similarly situated
employees of comparable companies in similar lines of business.
3. Term. Employment under this Agreement shall be at will. Either of
----
Employee or the Company may terminate this Agreement at any time for any reason.
4. Extent of Service. During the employment period, and excluding any
-----------------
periods of vacation and sick leave to which Employee is entitled, Employee
agrees to devote his business time, attention, skill and efforts exclusively to
the faithful performance of his duties hereunder; provided, however, that it
shall not be a violation of this Agreement for Employee to (i) devote reasonable
periods of time to charitable and community activities, and/or (ii) manage
personal business interests and investments, so long as such activities do not
interfere with the performance of Employee's responsibilities under this
Agreement.
5. Compensation and Benefits.
-------------------------
(a) Base Salary. During the employment period, the Company will pay to
-----------
Employee a base salary in the amount of $170,000 per year ("Base Salary"), less
normal withholdings, payable in equal monthly or more frequent installments as
are customary under the Company's payroll practices from time to time. The
Board of Directors of the Company shall review Employee's Base Salary annually
and in its sole discretion, subject to approval of the Board of Directors of the
Company, may increase Employee's Base Salary from year to year. The annual
review of Employee's salary by the Board will consider, among other things,
Employee's own performance and the Company's performance.
(b) Bonuses. The Board of Directors in its sole discretion may, from time
-------
to time, declare and pay to Employee bonuses, whether in cash or otherwise.
(c) Incentive, Savings and Retirement Plans. During the employment
---------------------------------------
period, Employee shall be entitled to participate in all incentive, savings and
retirement plans, practices, policies and programs applicable generally to
similarly situated employees of the Company and its affiliated companies, and on
the same relative basis as such other similarly situated employees.
(d) Welfare Benefit Plans. During the employment period, Employee and
---------------------
Employee's family shall be eligible for participation in and shall receive all
benefits under welfare benefit plans, practices, policies and programs provided
by the Company and its affiliated companies (including, without limitation,
medical, prescription, dental, disability, employee life, group life, accidental
death and travel accident insurance plans and programs) to the extent applicable
generally to similarly situated employees of the Company and its affiliated
companies.
(e) Expenses. During the employment period, Employee shall be entitled to
--------
receive prompt reimbursement for all reasonable expenses incurred by Employee in
accordance with the policies, practices and procedures of the Company and its
affiliated companies to the extent applicable generally to other similarly
situated employees of the Company and its affiliated companies.
(f) Fringe Benefits. During the employment period, Employee shall be
---------------
entitled to fringe benefits in accordance with the plans, practices, programs
and policies of the Company and its affiliated companies in effect for similarly
situated employees of the Company and its affiliated companies.
(g) Severance. If the Company elects for any reason at any time to
---------
terminate Employee's employment under this Agreement, the Company shall pay to
Employee all amounts due as salaries and bonuses up to the effective date of the
termination, plus an amount equal to one year's Base Salary as severance pay.
6. Stock Option Grants. As additional consideration to enter into this
-------------------
Agreement, the Company has granted Employee options to purchase 7,650 shares of
the common stock of the Company, pursuant to an Option Agreement by and between
Employee and Company, dated as of the date of this Agreement.
7. Representations and Warranties. Employee hereby represents and warrants
------------------------------
to the Company that Employee is not a party to, or otherwise subject to, any
covenant not to compete with any person or entity, other than Credit Bureau
Services, Inc., and Employee's execution of this Agreement and performance of
his obligations hereunder will not violate the terms or conditions of any
contract or obligation, written or oral, between Employee and any other person
or entity.
8. Restrictions on Conduct of Employee.
-----------------------------------
(a) General. Employee and the Company understand and agree that the
-------
purpose of the provisions of this Section 8 is to protect legitimate business
interests of the Company, as more fully described below, and is not intended to
eliminate Employee's post-employment competition with the Company per se, nor is
it intended to impair or infringe upon Employee's right to work, earn a living,
or acquire and possess property from the fruits of his labor. Employee hereby
acknowledges that the post-employment restrictions set forth in this Section 8
are reasonable and that they do not, and will not, unduly impair his ability to
earn a living after the termination of this Agreement. Therefore, subject to
the limitations of reasonableness imposed by law upon the restrictions set forth
herein, Employee shall be subject to the restrictions set forth in this Section
8.
-2-
(b) Definitions. The following capitalized terms used in this Section 8
-----------
shall have the meanings assigned to them below, which definitions shall apply to
both the singular and the plural forms of such terms:
"Affiliates" shall mean Check into Cash Holdings, Inc., Check into
Cash of California, Inc., Check into Cash of Illinois, LLC, Check into Cash of
Indiana, LLC, Check into Cash of Iowa, Inc., Check into Cash of Kentucky, LLC,
Check into Cash of Missouri, Inc., Check into Cash of Nebraska, Inc., Check into
Cash of North Carolina, Inc., Check into Cash of Ohio, LLC, Check into Cash of
Wisconsin, LLC, Credit Bureau Services, Inc., Creditcorp of Tennessee, Inc.,
Creditors Adjustment Bureau, Inc., Jones Management Services, Inc., Jones
Properties, LLC, Preferred One, LLC, and any other entities that may be formed
in the future under the control of the Company, any Affiliate or W. Allan Jones,
Jr.;
"Competitive Services" means any services provided by Company and the
Affiliates at the Determination Date, including, without limitation, the
business of cashing checks, deferring deposit of checks for specified periods of
time, and extending short-term, unsecured credit.
"Confidential Information" means any confidential or proprietary
information possessed by the Company or the Affiliates or relating to its or
their business, including, without limitation, any confidential "know-how,"
customer lists, details of client or consultant contracts, current and
anticipated customer requirements, pricing policies, price lists, market
studies, business plans, operational methods, marketing plans or strategies,
product development techniques or plans, computer software programs (including
object code and source code), data and documentation, data base technologies,
systems, structures and architectures, inventions and ideas, past, current and
planned research and development, compilations, devices, methods, techniques,
processes, financial information and data, business acquisition plans, new
personnel acquisition plans and any other information that would constitute a
Trade Secret (as defined herein).
"Determination Date" means the date of termination of Employee's
employment with the Company for any reason whatsoever or any earlier date
(during the employment period) of an alleged breach of the Restrictive Covenants
by Employee.
"Person" means any individual or any corporation, partnership, joint
venture, association or other entity or enterprise.
"Principal or Representative" means a principal, owner, partner,
shareholder, joint venturer, investor, member, trustee, director, officer,
manager, employee, agent, representative or consultant.
"Protected Employees" means persons who were employed by the Company
or the Affiliates at any time within six (6) months prior to the Determination
Date.
"Restricted Period" means the employment period and a period extending
two (2) years from the date of termination of Employee's employment under this
Agreement; provided, however, in the event the Confidential Information
constitutes a Trade Secret, the Restricted Period shall be five (5) years.
"Restrictive Covenants" means the restrictive covenants contained in
Section 8(c) hereof.
-3-
"Trade Secret" means any item of Confidential Information that
constitutes a "trade secret" under the common law or statutory law of the State
of Tennessee.
(c) Restrictive Covenants.
---------------------
(i) Restriction on Disclosure and Use of Confidential Information.
-------------------------------------------------------------
Employee understands and agrees that the Confidential Information constitutes a
valuable asset of the Company and its Affiliates, and may not be converted to
Employee's own use. Accordingly, Employee hereby agrees that Employee shall
not, directly or indirectly, at any time during the Restricted Period reveal,
divulge, or disclose to any Person not expressly authorized by the Company any
Confidential Information, and Employee shall not, directly or indirectly, at any
time during the Restricted Period use or make use of any Confidential
Information in connection with any business activity other than that of the
Company.
(ii) Nonsolicitation of Protected Employees. Employee understands and
--------------------------------------
agrees that the relationship between the Company and its Affiliates and each of
its Protected Employees constitutes a valuable asset of the Company and its
Affiliates and may not be converted to Employee's own use. Accordingly,
Employee hereby agrees that during the Restricted Period Employee shall not
directly or indirectly on Employee's own behalf or as a Principal or
Representative of any Person or otherwise solicit or induce any Protected
Employee to terminate his or her employment relationship with the Company.
(iii) Noncompetition with the Company. During the Restricted Period,
-------------------------------
Employee, unless acting in accordance with the Company's prior written consent,
will not directly provide any Competitive Services to, and will not, directly or
indirectly, (i) own, manage, operate, join, control, finance or participate in
the ownership, management, operation, control or financing of, or (ii) be
connected as a Principal or Representative or otherwise with, or (iii) permit
Employee's name to be used by or in connection with, any Person engaged in
providing Competitive Services to any Person conducting business activities
within a ten (10) mile radius of any store location from which the Company or
any Affiliate is or was engaged in the provision of the Competitive Services on
the Determination Date, including any store location for which a lease had been
entered into by the Company or any Affiliate on or before the Determination Date
but was not then operational; provided, however, that the provisions of this
Agreement shall not be deemed to prohibit the ownership by Employee of any
securities of the Company or its affiliated entities or not more than five
percent (5%) of any class of securities of any corporation having a class of
securities registered pursuant to the Securities Exchange Act of 1934, as
amended. The provisions of this Section 8(c)(iii) shall not apply in the event
that the employee is terminated by the Company.
(d) Exceptions from Disclosure Restrictions. Anything herein to the
---------------------------------------
contrary notwithstanding, Employee shall not be restricted from disclosing or
using Confidential Information that: (a) is or becomes generally available to
the public other than as a result of an unauthorized disclosure by Employee or
his agent; (b) becomes available to Employee in a manner that is not in
contravention of applicable law from a source (other than the Company or its
Affiliates or one of its or their officers, employees, agents or
representatives) that is not bound by a confidential relationship with the
Company or its Affiliates or by a confidentiality or other similar agreement;
(c) was known to Employee on a non-confidential basis and not in contravention
of applicable law or a confidentiality or other similar agreement before its
disclosure to Employee by the Company or its Affiliates or one of its or their
officers, employees, agents or representatives; or (d) is required to be
disclosed by law, court order or other legal process; provided, however, that in
the event disclosure is required by law, court order or other legal process,
Employee shall provide the Company with prompt notice of such
-4-
requirement so that the Company may seek an appropriate protective order prior
to any such required disclosure by Employee.
(e) Enforcement of Restrictive Covenants.
------------------------------------
(i) Rights and Remedies Upon Breach. In the event Employee breaches,
-------------------------------
or threatens to commit a breach of, any of the provisions of the Restrictive
Covenants, the Company shall have the following rights and remedies, which shall
be independent of any others and severally enforceable, and shall be in addition
to, and not in lieu of, any other rights and remedies available to the Company
at law or in equity:
A. the right and remedy to enjoin, preliminarily and
permanently, Employee from violating or threatening to violate the Restrictive
Covenants and to have the Restrictive Covenants specifically enforced by any
court of competent jurisdiction, it being agreed that any breach or threatened
breach of the Restrictive Covenants would cause irreparable injury to the
Company or an Affiliate and that money damages would not provide an adequate
remedy to the Company or the Affiliate; and
B. the right and remedy to require Employee to account for
and pay over to the Company all compensation, profits, monies, accruals,
increments or other benefits derived or received by Employee as the result of
any transactions constituting a breach of the Restrictive Covenants.
(ii) Severability of Covenants. Employee acknowledges and agrees that
-------------------------
the Restrictive Covenants are reasonable and valid in time and scope and in all
other respects. If any court determines that any of the Restrictive Covenants,
or any part thereof, are invalid or unenforceable, the remainder of the
Restrictive Covenants shall not thereby be affected and shall be given full
effect, without regard to the invalid portions.
(iii) Attorneys' Fees. In any action relating to the enforcement of
---------------
the Restrictive Covenants, the prevailing party in such action shall be entitled
to be paid any and all costs and expenses incurred by him or it in enforcing or
establishing his or its rights thereunder, including, without limitation,
reasonable attorneys' fees, whether suit be brought or not, and whether or not
incurred in trial, bankruptcy or appellate proceedings.
9. Assignment and Successors.
-------------------------
(a) Employee. This Agreement is personal to Employee and without the
--------
prior written consent of the Company shall not be assignable by Employee
otherwise than by will or the laws of descent and distribution. This
Agreement shall inure to the benefit of and be enforceable by Employee's
legal representatives.
(b) The Company. This Agreement shall inure to the benefit of and be
-----------
binding upon the Company and its successors and assigns. The Company will
require any successor to all or substantially all of the business and/or
assets of the Company (whether direct or indirect, by purchase, merger,
consolidation or otherwise) to assume expressly and agree to perform this
Agreement in the same manner and to the same extent that the Company would
be required to perform it if no such succession had taken place. As used in
this Agreement, "the Company" shall mean the Company as hereinbefore
defined and any successor to its business and/or assets as aforesaid which
assumes and agrees to perform this Agreement by operation of law or
otherwise.
-5-
10. Miscellaneous.
-------------
(a) Waiver. Failure of either party to insist, in one or more instances,
------
on performance by the other in strict accordance with the terms and conditions
of this Agreement shall not be deemed a waiver or relinquishment of any right
granted in this Agreement or of the future performance of any such term or
condition or of any other term or condition of this Agreement, unless such
waiver is contained in a writing signed by the party making the waiver.
(b) Severability. If any provision or covenant, or any part thereof, of
------------
this Agreement should be held by any court to be invalid, illegal or
unenforceable, either in whole or in part, such invalidity, illegality or
unenforceability shall not affect the validity, legality or enforceability of
the remaining provisions or covenants, or any part thereof, of this Agreement,
all of which shall remain in full force and effect.
(c) Other Agents. Nothing in this Agreement is to be interpreted as
------------
limiting the Company from employing other personnel on such terms and conditions
as may be satisfactory to it.
(d) Entire Agreement. Except as provided herein, this Agreement contains
----------------
the entire agreement between the Company and Employee with respect to the
subject matter hereof, and it supersedes and invalidates any previous agreements
or contracts between them which relate to the subject matter hereof, including,
but not limited to that certain Employment, Confidentiality and Non-Competition
Agreement that was previously executed by and between Employee and the Company.
No representations, inducements, promises or agreements, oral or otherwise,
which are not embodied herein shall be of any force or effect.
(e) Governing Law. Except to the extent preempted by federal law, the
-------------
laws of the State of Tennessee and, without regard to Tennessee's conflict of
laws principles, shall govern this Agreement in all respects, whether as to its
validity, construction, capacity, performance or otherwise.
(f) Notices. All notices, requests, demands and other communications
-------
required or permitted hereunder shall be in writing and shall be deemed to have
been duly given if delivered or three days after mailing if mailed, first class,
certified mail, postage prepaid:
To Company: Check into Cash, Inc.
Post Office Box 1015
Cleveland, Tennessee 37364-1015
Facsimile No. (423) 476-9200
Attention: W. Allan Jones, Jr.,
Chairman and Chief Executive Officer
To Employee: Frederick Krosner
6211 Flag Point Drive
Ooltewah, Tennessee 37363
Any party may change the address to which notices, requests, demands and other
communications shall be delivered or mailed by giving notice thereof to the
other party in the same manner provided herein.
(g) Amendments and Modifications. This Agreement may be amended or
----------------------------
modified only by a writing signed by both parties hereto, which makes specific
reference to this Agreement.
-6-
IN WITNESS WHEREOF, the parties hereto have duly executed and delivered this
Employment, Confidentiality and Non-Competition Agreement as of the date first
above written.
CHECK INTO CASH, INC.
By: /s/ W. Allan Jones, Jr.
----------------------------
W. Allan Jones, Jr.
Chairman of the Board
and Chief Executive Officer
EMPLOYEE:
/s/ Frederick Krosner
------------------------------
Frederick Krosner
-7-
EX-21
12
EXHIBIT 21
EXHIBIT 21
The Registrant has 12 direct subsidiaries:
Check Into Cash of California, Inc., a California corporation
Check Into Cash of Iowa, Inc., an Iowa corporation
Check Into Cash of Mississippi, Inc., a Mississippi corporation
Check Into Cash of Missouri, Inc., a Missouri corporation
Check Into Cash of Nebraska, Inc., a Nebraska corporation
Check Into Cash of North Carolina, Inc., a North Carolina corporation
Check Into Cash of Oregon, Inc., an Oregon corporation
Check Into Cash of Pennsylvania, Inc., a Pennsylvania corporation
Check Into Cash of South Carolina, Inc., a South Carolina corporation
Creditcorp of Tennessee, Inc., a Tennessee corporation
Check Into Cash of Washington, Inc., a Washington corporation
Check Into Cash Holdings, Inc., a Delaware corporation
In addition, Check Into Cash Holdings, Inc. has six indirect subsidiaries:
Check Into Cash of Illinois, LLC, an Illinois limited liability company
Check Into Cash of Indiana, LLC, an Indiana limited liability company
Check Into Cash of Kentucky, LLC, a Kentucky limited liability company
Check Into Cash of Ohio, LLC, an Ohio limited liability company
Check Into Cash of Wisconsin, LLC, a Wisconsin limited liability company
Jones Management Services, LLC, a Tennessee limited liability company
EX-23.2
13
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
EXHIBIT 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the use of our
reports (and to all references to our Firm) included in or made a part of this
registration statement.
ARTHUR ANDERSEN LLP
July 28, 1998
Chattanooga, Tennessee
EX-27
14
FINANCIAL DATA SCHEDULE
5
YEAR 6-MOS
DEC-31-1997 DEC-31-1998
JAN-01-1997 JAN-01-1998
DEC-31-1997 JUN-30-1998
1,149,925 2,282,009
81,164 87,854
10,102,430 15,384,598
255,000 265,000
0 0
13,097,977 19,469,596
3,182,257 4,700,098
997,730 1,667,875
15,925,011 23,169,506
3,973,640 4,635,355
0 0
0 0
0 0
12,360 12,360
2,420,761 3,881,100
15,925,011 23,169,506
21,050,501 21,088,692
21,446,588 21,241,222
13,097,803 12,225,809
21,696,887 17,417,134
0 0
0 0
621,452 620,443
871,751 3,203,645
594,236 1,082,515
277,515 2,121,130
0 0
0 0
0 0
277,515 2,121,130
.23 1.72
.23 1.62
-----END PRIVACY-ENHANCED MESSAGE-----
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