As filed with the Securities and Exchange Commission on August 2, 1996
REGISTRATION NO. 33-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------------------------
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
FIRSTCITY FINANCIAL CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 76-0243729
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
6400 IMPERIAL DRIVE
WACO, TEXAS 76712
(Address, including zip code, of Registrant's principal executive offices)
FIRSTCITY FINANCIAL CORPORATION 1995 STOCK OPTION AND AWARD PLAN
FIRSTCITY FINANCIAL CORPORATION 1996 STOCK OPTION AND AWARD PLAN
(Full title of the plans)
----------------------------------
Copy to:
JAMES R. HAWKINS, STEVEN D. RUBIN, ESQ.
CHAIRMAN OF THE BOARD AND CHIEF EXECUTIVE OFFICER WEIL, GOTSHAL & MANGES LLP
FIRSTCITY FINANCIAL CORPORATION 700 LOUISIANA, SUITE 1600
6400 IMPERIAL DRIVE HOUSTON, TEXAS 77002
WACO, TEXAS 76712 (713) 546-5000
(817) 751-1750
(Name, address and telephone number, including
area code, of agent for service)
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
====================================================================================================================================
Proposed maximum Proposed maximum
Amount to be offering price per aggregate offering Amount of registration
Title of securities to be registered registered (1) share (5) price (5) fee
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par value $.01 per share 187,100 shares (2) $20.00 $ 3,742,000 $1,291
------------------------------------------------------------------------------------------
22,500 shares (2) $22.00 $ 495,000 $ 171
------------------------------------------------------------------------------------------
20,400 shares (3) $25.78 $ 525,912 $ 182
- ------------------------------------------------------------------------------------------------------------------------------------
Common Stock, par value $.01 per share 500,000 shares (4) $25.78 $12,890,000 $4,445
====================================================================================================================================
Total registration fee: $6,089
<FN>
(1) Pursuant to Rule 416 under the Securities Act of 1933, as amended, there
are also being registered such additional shares of the Registrant's
Common Stock as may become issuable pursuant to the antidilution
provisions of the FirstCity Financial Corporation 1995 Stock Option and
Award Plan and the FirstCity Financial Corporation 1996 Stock Option and
Award Plan.
(2) Such shares are issuable upon the exercise of outstanding options granted
under the FirstCity Financial Corporation 1995 Stock Option and Award
Plan.
(3) Such shares are issuable upon the exercise of options available for
future grants under the FirstCity Financial Corporation 1995 Stock Option
and Award Plan.
(4) Such shares are issuable upon the exercise of options available for
future grants under the FirstCity Financial Corporation 1996 Stock Option
and Award Plan.
(5) Estimated solely for the purposes of calculating the registration fee in
accordance with Rule 457(h) under the Securities Act of 1933, as amended,
and representing (1) with respect to the 187,100 and 22,500 shares
issuable upon the exercise of outstanding options granted under the
FirstCity Financial Corporation 1995 Stock Option and Award Plan, the
number of such shares multiplied by their respective option exercise
prices, and (2) with respect to the 20,400 shares issuable upon the
exercise of options available for future grants under the FirstCity
Financial Corporation 1995 Stock Option and Award Plan, and the 500,000
shares issuable upon the exercise of options available for future grants
under the FirstCity Financial Corporation 1996 Stock Option and Award
Plan, the number of such shares multiplied by the average of the high and
low prices of the Registrant's Common Stock on July 31, 1996 as reported
on the Nasdaq National Market.
</FN>
</TABLE>
================================================================================
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
ITEM 1. PLAN INFORMATION.
-----------------
Not required to be filed with this Registration Statement.*
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
------------------------------------------------------------
Not required to be filed with this Registration Statement.*
- --------------------------------
* Information required by Part I to be contained in the Section 10(a)
prospectus is omitted from this Registration Statement in accordance with
Rule 428 under the Securities Act of 1933, as amended, and the Note to Part
I of Form S-8.
2
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
----------------------------------------
The following documents are incorporated by reference in this
Registration Statement:
a. The Registrant's Annual Report on Form 10-K for the
fiscal year ended December 31, 1995 (the "1995 Form 10-K") filed with
the Securities and Exchange Commission (the "Commission") under the
Securities Exchange Act of 1934, as amended (the "Exchange Act");
b. All reports filed by the Registrant pursuant to Sections
13(a) or 15(d) of the Exchange Act since the end of the fiscal year
covered by the 1995 Form 10-K; and
c. The description of the Registrant's Common Stock
contained in the Registrant's Form 8-A Registration Statement filed
with the Commission under the Exchange Act on July 25, 1995 (File No.
0-26500), as amended by the Registrant's Form 8-A/A filed with the
Commission under the Exchange Act on August 25, 1995 and the
Registrant's Form 8-A/A No. 2 filed with the Commission under the
Exchange Act on September 6, 1995, including any amendment or report
filed for the purpose of updating such description.
All documents subsequently filed by the Registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of
a post-effective amendment to this Registration Statement which indicates that
all of the shares of the Registrant's Common Stock offered hereby have been sold
or which deregisters all of such shares then remaining unsold, shall be deemed
to be incorporated by reference in this Registration Statement and to be a part
hereof from the date of filing of such documents.
Any statement or information contained herein or in any document all
or part of which is incorporated or deemed to be incorporated by reference in
this Registration Statement shall be deemed to be modified or superseded for
purposes of this Registration Statement to the extent that a statement or
information contained herein or in any other subsequently filed document which
also is or is deemed to be incorporated by reference in this Registration
Statement modifies or supersedes such statement or information. Any such
statement or information so modified or superseded shall not be deemed, except
as so modified or superseded, to constitute a part of this Registration
Statement.
3
<PAGE>
ITEM 4. DESCRIPTION OF SECURITIES.
--------------------------
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
---------------------------------------
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
------------------------------------------
The Registrant's Amended and Restated Certificate of Incorporation
(the "Certificate of Incorporation") provides that each person who was or is
made a party to, or testifies in, any threatened, pending or completed action,
suit or proceeding by reason of the fact that he or she is or was a director,
officer, employee or agent of the Registrant (or was serving at the request of
the Registrant as a director, officer, employee or agent for another entity)
will be indemnified by the Registrant, to the full extent permitted by the
Delaware General Corporation Law (the "DGCL").
Under Section 145 of the DGCL, a corporation may indemnify a
director, officer, employee or agent of the corporation against expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by him or her 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 reasonable cause to believe his or her conduct was unlawful.
In the case of an action brought by or in the right of a corporation, a
corporation may indemnify a director, officer, employee or agent of the
corporation against expenses (including attorneys' fees) actually and reasonably
incurred by him or her 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, except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to be
liable to the corporation unless a court finds that, in view of all the
circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses as the court shall deem proper.
The Certificate of Incorporation provides that a director of the
Registrant shall not be liable to the Registrant or its stockholders for
monetary damages for breach of fiduciary duty as a director, except (i) for
breaches of the director's duty of loyalty to the corporation or its
stockholders, (ii) for acts or omissions not in good faith or involving
intentional misconduct or known violations of law, (iii) for the payment of
unlawful dividends or unlawful stock purchases or redemptions, or (iv) for
transactions in which the director received an improper personal benefit. The
Certificate of Incorporation further provides that neither amendment nor repeal
of such provision nor the adoption of any term of the Certificate of
Incorporation inconsistent with such provision shall eliminate or reduce the
effect of such provision in respect of any matter occurring, or any cause of
action, suit or claim that, but for such
4
<PAGE>
provision, would accrue or arise, prior to such amendment, repeal or adoption of
such inconsistent provision.
The foregoing summaries are necessarily subject to the complete text
of the statutes and the Certificate of Incorporation referred to above and are
qualified in their entirety by reference thereto.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
------------------------------------
Not applicable.
ITEM 8. EXHIBITS.
---------
The Exhibits to this Registration Statement are listed in the Index
to Exhibits on page 9 of this Registration Statement, which Index is
incorporated herein by reference.
ITEM 9. UNDERTAKINGS.
-------------
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or
sales are being made, a post-effective amendment to this
Registration Statement:
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act of 1933, as
amended;
(ii) To reflect in the prospectus any facts or
events arising after the effective date of the
Registration Statement (or the most recent post-effective
amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the
information set forth in the Registration Statement; and
(iii) To include any material information with
respect to the plan of distribution not previously
disclosed in the Registration Statement or any material
change to such information in the Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii)
do not apply if the information required to be included in
a post-effective amendment by those paragraphs is contained
in periodic reports filed with or furnished to the
Securities and Exchange Commission by the Registrant
pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934, as amended, that are incorporated by
reference in the Registration Statement.
5
<PAGE>
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, as amended, each such
post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being registered
which remain unsold at the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act of 1933, as amended, each
filing of the Registrant's annual report pursuant to Section 13(a) or Section
15(d) of the Securities Exchange Act of 1934, as amended (and, where applicable,
each filing of an employee benefit plan's annual report pursuant to Section
15(d) of the Securities Exchange Act of 1934, as amended), that is incorporated
by reference in the Registration Statement shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933, as amended, may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the provisions described in
Item 6 above 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 Securities Act of 1933, as amended, and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the Registrant of expenses incurred
or paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act of 1933, as amended, and will be
governed by the final adjudication of such issue.
6
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, the Registrant certifies that it has reasonable grounds to believe that
it meets all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Waco, State of Texas, on August 1, 1996.
FIRSTCITY FINANCIAL CORPORATION
By: /s/ James R. Hawkins
------------------------------------------
James R. Hawkins, Chairman of the Board
and Chief Executive Officer
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and
appoints James R. Hawkins and James T. Sartain, and each of them, his true and
lawful attorneys-in-fact and agents with full power of substitution and
resubstitution, for him and in his name, place and stead, and in any and all
capacities, to sign any and all amendments (including post-effective amendments)
to this Registration Statement, and to file the same, with all exhibits thereto,
and other documents in connection therewith, with the Securities and Exchange
Commission, and hereby grants to such attorneys-in-fact and agents, and each of
them, full power and authority to do and perform each and every act and thing
requisite and necessary to be done, as fully to all intents and purposes as he
might or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents or any of them or his or their substitute or
substitutes may lawfully do or cause to be done by virtue hereof.
7
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, as
amended, this Registration Statement has been signed by the following persons in
the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ James R. Hawkins Chairman of the Board, Chief August 1, 1996
- -------------------------------- Executive Officer and Director
James R. Hawkins (Principal executive officer)
/s/ Matt A. Landry, Jr. Executive Vice President, Chief August 1, 1996
- -------------------------------- Financial Officer and Director
Matt A. Landry, Jr. (Principal financial officer and
principal accounting officer)
/s/ James T. Sartain Director August 1, 1996
- --------------------------------
James T. Sartain
/s/ Rick R. Hagelstein Director August 1, 1996
- --------------------------------
Rick R. Hagelstein
/s/ Richard E. Bean Director August 1, 1996
- --------------------------------
Richard E. Bean
/s/ Bart A. Brown Director August 1, 1996
- --------------------------------
Bart A. Brown
/s/ Donald J. Douglass Director August 1, 1996
- --------------------------------
Donald J. Douglass
/s/ David W. MacLennan Director August 1, 1996
- --------------------------------
David W. MacLennan
/s/ David Palmer Director August 1, 1996
- --------------------------------
David Palmer
/s/ C. Ivan Wilson Director August 1, 1996
- --------------------------------
C. Ivan Wilson
</TABLE>
8
<PAGE>
INDEX TO EXHIBITS
Exhibit
Number Exhibit
------ -------
4.1 Amended and Restated Certificate of Incorporation of the
Registrant (incorporated herein by reference to Exhibit
3.1 of the Registrant's Form 8-K dated July 3, 1995 filed
with the Commission on July 18, 1995).
4.2 Bylaws of the Registrant (incorporated herein by reference
to Exhibit 3.2 of the Registrant's Form 8-K dated July 3,
1995 filed with the Commission on July 18, 1995).
4.3 FirstCity Financial Corporation 1995 Stock Option and
Award Plan (incorporated herein by reference to Exhibit A
of the Registrant's Proxy Statement for the Registrant's
1996 Annual Meeting of Stockholders).
4.4* Form of Award Agreement under FirstCity Financial
Corporation 1995 Stock Option and Award Plan.
4.5 FirstCity Financial Corporation 1996 Stock Option and
Award Plan (incorporated herein by reference to Exhibit C
of the Registrant's Proxy Statement for the Registrant's
1996 Annual Meeting of Stockholders).
4.6* Form of Award Agreement under FirstCity Financial
Corporation 1996 Stock Option and Award Agreement.
5.1* Opinion of Weil, Gotshal & Manges LLP.
23.1 Consent of Weil, Gotshal & Manges LLP (contained in
Exhibit 5.1).
23.2* Consent of KPMG Peat Marwick LLP.
24.1 Power of Attorney (set forth on the signature page to the
Registration Statement).
- ---------------------------------
* Filed herewith.
9
HOFS02...:\92\54892\0004\2236\SEC5036T.26B
EXHIBIT 4.4
-----------
FIRSTCITY FINANCIAL CORPORATION
1995 STOCK OPTION AND AWARD PLAN
FORM OF AWARD AGREEMENT
-----------------------
[Date]
[Name]
[Title]
FirstCity Financial Corporation
6400 Imperial Drive
Waco, Texas 76712
Re: Grant of Stock Option
---------------------
Dear ________:
The Board of Directors of FirstCity Financial Corporation, a Delaware
corporation (the "Company"), has adopted, and the Company's stockholders have
approved, the Company's 1995 Stock Option and Award Plan (the "Plan") for
certain individuals, directors and key employees of the Company and its
Subsidiaries. A copy of the Plan is being furnished to you concurrently with the
execution of this Award Agreement and shall be deemed a part of this Award
Agreement as if fully set forth herein. Unless the context otherwise requires,
all terms defined in the Plan shall have the same meaning when used herein.
1. Grant.
------
Subject to the conditions set forth below, the Company hereby grants
to you, effective as of _______, ____ (the "Grant Date") (subject to Section
2(e) of this Award Agreement), as a matter of separate inducement and not in
lieu of any salary or other compensation for your services, the right and option
to purchase (the "Option"), in accordance with the terms and conditions set
forth herein and in the Plan, an aggregate of _________ Shares (the "Option
Shares"), at a price equal to $____ per Share, subject to the adjustments and
limitations set forth herein and in the Plan (the "Option Price"). The Option
granted hereunder is intended to constitute an Incentive Stock Option within the
meaning of the Plan; however, you should consult with your tax advisor
concerning the proper reporting of any federal or state tax liability that may
arise as a result of the grant or exercise of the Option.
<PAGE>
2. Exercise.
---------
(a) For purposes of this Award Agreement, the Option Shares shall be
deemed "Nonvested Shares" unless and until they have become "Vested Shares." The
Option Shares shall become "Vested Shares" in _________ equal, consecutive
annual installments, commencing on the first anniversary of _________, ____,
provided that vesting shall cease upon your ceasing to be an employee of the
Company or a Subsidiary as and to the extent provided in Section 3 hereof.
(b) Subject to the relevant provisions and limitations contained
herein and in the Plan, you may exercise the Option to purchase all or any
portion of the Vested Shares at any time prior to the termination of the Option
pursuant to this Award Agreement. In no event shall you be entitled to exercise
the Option for any Nonvested Shares or for a fraction of any Vested Share.
(c) The unexercised portion of the Option, if any, will
automatically, and without notice, terminate and become null and void upon the
expiration of ____ years from the Grant Date.
(d) Any exercise by you of the Option shall be in writing addressed
to the Secretary of the Company at its principal place of business (a copy of
the form of exercise notice to be used will be available upon written request to
the Secretary), and shall be accompanied by a certified or bank check payable to
the order of the Company in the full amount of the Option Price of the shares so
purchased, or in such other manner as described in the Plan and approved by the
Committee.
(e) Notwithstanding the foregoing provisions of Section 2 of this
Award Agreement, and the provisions of the Plan, the Option shall not be
exercisable until such time as the stockholders of the Company have approved the
Plan pursuant to Rule 16b-3(b) promulgated under the Securities Exchange Act of
1934, as amended (the "Exchange Act"). For purposes of determining the holding
period under Rule 16b-3(c) under the Exchange Act, the Option shall be deemed to
have been acquired as of the date of such approval.
3. Termination of Employment. Upon the termination of your employment
--------------------------
with the Company and any Subsidiary, the Option shall terminate and/or be
exercisable pursuant to Section 6.7 of the Plan.
4. Transferability. The Option and any rights or interests therein
----------------
are not assignable or transferable by you except by will or the laws of descent
and distribution, and during your lifetime, the Option shall be exercisable only
by you or, in the event that a legal representative has been appointed in
connection with your Disability, such legal representative.
2
<PAGE>
5. Registration. The Company shall not in any event be obligated to
-------------
file any registration statement under the Securities Act of 1933, as amended
(the "Securities Act"), or any applicable state securities laws to permit
exercise of the Option or to issue any Shares in violation of the Securities Act
or any applicable state securities laws. You (or in the event of your death or,
in the event a legal representative has been appointed in connection with your
Disability, the Person exercising the Option) shall, as a condition to your
right to exercise the Option, deliver to the Company an agreement or certificate
containing such representations, warranties and covenants as the Company may
deem necessary or appropriate to ensure that the issuance of the Option Shares
pursuant to such exercise is not required to be registered under the Securities
Act or any applicable state securities laws. Certificates for Option Shares,
when issued, shall have substantially the following legend, or statements of
other applicable restrictions, endorsed thereon, and may not be immediately
transferable:
THE SHARES OF STOCK REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE
SECURITIES LAWS. THE SHARES MAY NOT BE OFFERED FOR SALE, SOLD,
PLEDGED, TRANSFERRED OR OTHERWISE DISPOSED OF UNTIL THE HOLDER HEREOF
PROVIDES EVIDENCE SATISFACTORY TO THE ISSUER (WHICH, IN THE
DISCRETION OF THE ISSUER, MAY INCLUDE AN OPINION OF COUNSEL
SATISFACTORY TO THE ISSUER) THAT SUCH OFFER, SALE, PLEDGE, TRANSFER
OR OTHER DISPOSITION WILL NOT VIOLATE APPLICABLE FEDERAL OR STATE
LAWS.
The foregoing legend may not be required for Option Shares issued
pursuant to an effective registration statement under the Securities Act and in
accordance with applicable state securities laws.
6. Withholding Taxes. By acceptance hereof, you hereby (1) agree to
reimburse the Company or any Subsidiary by which you are employed for any
federal, state or local taxes required by any government to be withheld or
otherwise deducted by such entity in respect of your exercise of all or a
portion of the Option; (2) authorize the Company or any Subsidiary by which you
are employed to withhold from any cash compensation paid to you or on your
behalf, an amount sufficient to discharge any federal, state and local taxes
imposed on the Company, or the Subsidiary by which you are employed, and which
otherwise has not been reimbursed by you, in respect of your exercise of all or
a portion of the Option; and (3) agree that the Company may, in its discretion,
hold the stock certificate to which you are entitled upon exercise of the Option
as security for the payment of the aforementioned withholding tax liability,
until cash sufficient to pay that liability has been accumulated, and may, in
its discretion, effect such withholding by retaining shares issuable upon the
exercise of the Option having a Fair Market Value on the date of exercise which
is equal to the amount to be withheld.
3
<PAGE>
7. Miscellaneous.
--------------
(a) This Award Agreement is subject to all the terms, conditions,
limitations and restrictions contained in the Plan. In the event of any conflict
or inconsistency between the terms hereof and the terms of the Plan, the terms
of the Plan shall be controlling.
(b) This Award Agreement is not a contract of employment and the
terms of your employment shall not be affected by, or construed to be affected
by, this Award Agreement, except to the extent specifically provided herein.
Nothing herein shall impose, or be construed as imposing, any obligation (1) on
the part of the Company or any Subsidiary to continue your employment, or (2) on
your part to remain in the employ of the Company or any Subsidiary.
Please indicate your acceptance of all the terms and conditions of
the Option and the Plan by signing and returning a copy of this Award Agreement.
Very truly yours,
FIRSTCITY FINANCIAL CORPORATION
By:_________________________________
Its:________________________________
ACCEPTED:
_____________________________
Signature of Optionee
_____________________________
Name of Optionee
Date:________________________
4
EXHIBIT 4.6
-----------
FIRSTCITY FINANCIAL CORPORATION
1996 STOCK OPTION AND AWARD PLAN
FORM OF AWARD AGREEMENT
-----------------------
[Date]
[Name]
[Title]
FirstCity Financial Corporation
6400 Imperial Drive
Waco, Texas 76712
Re: Grant of Stock Option
---------------------
Dear _______:
The Board of Directors of FirstCity Financial Corporation, a Delaware
corporation (the "Company"), has adopted, and the Company's stockholders have
approved, the Company's 1996 Stock Option and Award Plan (the "Plan") for
certain individuals, directors and key employees of the Company and its
Subsidiaries. A copy of the Plan is being furnished to you concurrently with the
execution of this Award Agreement and shall be deemed a part of this Award
Agreement as if fully set forth herein. Unless the context otherwise requires,
all terms defined in the Plan shall have the same meaning when used herein.
1. Grant.
------
Subject to the conditions set forth below, the Company hereby grants
to you, effective as of ________, ___ (the "Grant Date"), as a matter of
separate inducement and not in lieu of any salary or other compensation for your
services, the right and option to purchase (the "Option"), in accordance with
the terms and conditions set forth herein and in the Plan, an aggregate of
________ Shares (the "Option Shares"), at a price equal to $______ per Share,
subject to the adjustments and limitations set forth herein and in the Plan (the
"Option Price"). The Option granted hereunder is intended to constitute an
Incentive Stock Option within the meaning of the Plan; however, you should
consult with your tax advisor concerning the proper reporting of any federal or
state tax liability that may arise as a result of the grant or exercise of the
Option.
<PAGE>
2. Exercise.
---------
(a) For purposes of this Award Agreement, the Option Shares shall be
deemed "Nonvested Shares" unless and until they have become "Vested Shares." The
Option Shares shall become "Vested Shares" in ________ equal, consecutive annual
installments, commencing on the first anniversary of ________, ___, provided
that vesting shall cease upon your ceasing to be an employee of the Company or a
Subsidiary as and to the extent provided in Section 3 hereof.
(b) Subject to the relevant provisions and limitations contained
herein and in the Plan, you may exercise the Option to purchase all or any
portion of the Vested Shares at any time prior to the termination of the Option
pursuant to this Award Agreement. In no event shall you be entitled to exercise
the Option for any Nonvested Shares or for a fraction of any Vested Share.
(c) The unexercised portion of the Option, if any, will
automatically, and without notice, terminate and become null and void upon the
expiration of ____ years from the Grant Date.
(d) Any exercise by you of the Option shall be in writing addressed
to the Secretary of the Company at its principal place of business (a copy of
the form of exercise notice to be used will be available upon written request to
the Secretary), and shall be accompanied by a certified or bank check payable to
the order of the Company in the full amount of the Option Price of the shares so
purchased, or in such other manner as described in the Plan and approved by the
Committee.
3. Termination of Employment. Upon the termination of your employment
--------------------------
with the Company and any Subsidiary, the Option shall terminate and/or be
exercisable pursuant to Section 6.7 of the Plan.
4. Transferability. The Option and any rights or interests therein
----------------
are not assignable or transferable by you except by will or the laws of descent
and distribution, and during your lifetime, the Option shall be exercisable only
by you or, in the event that a legal representative has been appointed in
connection with your Disability, such legal representative.
5. Registration. The Company shall not in any event be obligated to
-------------
file any registration statement under the Securities Act of 1933, as amended
(the "Securities Act"), or any applicable state securities laws to permit
exercise of the Option or to issue any Shares in violation of the Securities Act
or any applicable state securities laws. You (or in the event of your death or,
in the event a legal representative has been appointed in connection with your
Disability, the Person exercising the Option) shall, as a condition to your
right to exercise the Option, deliver to the Company an agreement or certificate
containing such representations, warranties and covenants as the Company may
deem necessary or appropriate to ensure that
2
<PAGE>
the issuance of the Option Shares pursuant to such exercise is not required to
be registered under the Securities Act or any applicable state securities laws.
Certificates for Option Shares, when issued, shall have substantially the
following legend, or statements of other applicable restrictions, endorsed
thereon, and may not be immediately transferable:
THE SHARES OF STOCK REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE
SECURITIES LAWS. THE SHARES MAY NOT BE OFFERED FOR SALE, SOLD,
PLEDGED, TRANSFERRED OR OTHERWISE DISPOSED OF UNTIL THE HOLDER HEREOF
PROVIDES EVIDENCE SATISFACTORY TO THE ISSUER (WHICH, IN THE
DISCRETION OF THE ISSUER, MAY INCLUDE AN OPINION OF COUNSEL
SATISFACTORY TO THE ISSUER) THAT SUCH OFFER, SALE, PLEDGE, TRANSFER
OR OTHER DISPOSITION WILL NOT VIOLATE APPLICABLE FEDERAL OR STATE
LAWS.
The foregoing legend may not be required for Option Shares issued
pursuant to an effective registration statement under the Securities Act and in
accordance with applicable state securities laws.
6. Withholding Taxes. By acceptance hereof, you hereby (1) agree to
------------------
reimburse the Company or any Subsidiary by which you are employed for any
federal, state or local taxes required by any government to be withheld or
otherwise deducted by such entity in respect of your exercise of all or a
portion of the Option; (2) authorize the Company or any Subsidiary by which you
are employed to withhold from any cash compensation paid to you or on your
behalf, an amount sufficient to discharge any federal, state and local taxes
imposed on the Company, or the Subsidiary by which you are employed, and which
otherwise has not been reimbursed by you, in respect of your exercise of all or
a portion of the Option; and (3) agree that the Company may, in its discretion,
hold the stock certificate to which you are entitled upon exercise of the Option
as security for the payment of the aforementioned withholding tax liability,
until cash sufficient to pay that liability has been accumulated, and may, in
its discretion, effect such withholding by retaining shares issuable upon the
exercise of the Option having a Fair Market Value on the date of exercise which
is equal to the amount to be withheld.
7. Miscellaneous.
--------------
(a) This Award Agreement is subject to all the terms, conditions,
limitations and restrictions contained in the Plan. In the event of any conflict
or inconsistency between the terms hereof and the terms of the Plan, the terms
of the Plan shall be controlling.
(b) This Award Agreement is not a contract of employment and the
terms of your employment shall not be affected by, or construed to be affected
by, this Award
3
<PAGE>
Agreement, except to the extent specifically provided herein. Nothing herein
shall impose, or be construed as imposing, any obligation (1) on the part of the
Company or any Subsidiary to continue your employment, or (2) on your part to
remain in the employ of the Company or any Subsidiary.
Please indicate your acceptance of all the terms and conditions of
the Option and the Plan by signing and returning a copy of this Award Agreement.
Very truly yours,
FIRSTCITY FINANCIAL CORPORATION
By:________________________________
Its:_______________________________
ACCEPTED:
_______________________________
Signature of Optionee
_______________________________
Name of Optionee
Date:__________________________
4
EXHIBIT 5.1
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WEIL, GOTSHAL & MANGES LLP
700 Louisiana
Suite 1600
Houston, Texas 77002
August 2, 1996
FirstCity Financial Corporation
6400 Imperial Drive
Waco, Texas 76712
Ladies and Gentlemen:
We have acted as counsel to FirstCity Financial Corporation, a
Delaware corporation (the "Company"), in connection with the preparation and
filing by the Company of a Registration Statement on Form S-8 (the "Registration
Statement") under the Securities Act of 1933, as amended, pertaining to (1) the
issuance of up to 230,000 shares of the Company's Common Stock, par value $.01
per share (the "Common Stock"), under the FirstCity Financial Corporation 1995
Stock Option and Award Plan (the "1995 Plan") and (2) the issuance of up to
500,000 shares of the Company's Common Stock under the FirstCity Financial
Corporation 1996 Stock Option and Award Plan (the "1996 Plan"). Such 230,000
shares of the Company's Common Stock issuable under the 1995 Plan and such
500,000 shares of the Company's Common Stock issuable under the 1996 Plan are
herein collectively referred to as the "Shares."
In so acting, we have examined originals or copies, certified or
otherwise identified to our satisfaction, of the Company's Amended and Restated
Certificate of Incorporation, the resolutions adopted by the Board of Directors
of the Company authorizing the issuance of the Shares pursuant to the 1995 Plan
and the 1996 Plan and such other corporate records, agreements, documents and
other instruments, and such certificates or comparable documents of public
officials and of officers and representatives of the Company, and have made such
inquiries of such officers and representatives, as we have deemed relevant and
necessary as a basis for the opinions hereinafter set forth.
<PAGE>
In such examination, we have assumed the genuineness of all
signatures, the legal capacity of natural persons, the authenticity of all
documents submitted to us as originals, the conformity to original documents of
all documents submitted to us as certified or photostatic copies and the
authenticity of the originals of such latter documents. As to all questions of
fact material to this opinion that have not been independently established, we
have relied upon certificates or comparable documents of officers and
representatives of the Company.
Based on the foregoing, and subject to the qualifications stated
herein, we are of the opinion that the Shares to be issued by the Company under
the 1995 Plan and the 1996 Plan have been duly authorized and, when issued,
delivered and paid for pursuant to and in accordance with the terms of the 1995
Plan and the 1996 Plan, as the case may be, will be validly issued, fully paid
and non-assessable.
The opinions expressed herein are limited to the corporate laws of
the State of Delaware, and we express no opinion as to the effect on the matters
covered by this letter of the laws of any other jurisdiction.
The opinions expressed herein are rendered solely for your benefit in
connection with the transactions described herein. Such opinions may not be used
or relied upon by any other person, nor may this letter or any copies thereof be
furnished to a third party, filed with a governmental agency, quoted, cited or
otherwise referred to without our prior written consent, except that we hereby
consent to the filing of this opinion as an exhibit to the Registration
Statement.
Very truly yours,
/s/ WEIL, GOTSHAL & MANGES LLP
2
EXHIBIT 23.2
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CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
The Board of Directors
FirstCity Financial Corporation:
We consent to incorporation by reference in the registration statement
on Form S-8 of FirstCity Financial Corporation of our report dated February 13,
1996, relating to the consolidated balance sheet of FirstCity Financial
Corporation and subsidiaries as of December 31, 1995, and the related
consolidated statements of income, shareholders' equity and cash flows for the
year then ended, our report dated February 2, 1996, relating to the combined
balance sheets of WAMCO Partnerships as of December 31, 1995 and 1994, and the
related combined statements of operations, changes in partners' capital and cash
flows for each of the years in the three-year period ended December 31, 1995,
and our report dated February 13, 1996, relating to the consolidated statement
of net assets of FirstCity Liquidating Trust and subsidiaries as of December 31,
1995, and the related consolidated statements of income and changes in net asset
value, and cash flows for the period from July 3, 1995 (effective date of
inception) through December 31, 1995, which reports appear in the December 31,
1995 annual report on Form 10-K of FirstCity Financial Corporation.
KPMG Peat Marwick LLP
/s/ KPMG Peat Marwick LLP
Fort Worth, Texas
August 2, 1996
