<PAGE> 1
As filed with the Securities and Exchange Commission on February 1, 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
(State or other jurisdiction of incorporation or organization)
76-0243729
(I.R.S. Employer Identification No.)
6400 IMPERIAL DRIVE
WACO, TEXAS 76712
(Address, including zip code of Registrant's principal executive offices)
FIRSTCITY FINANCIAL CORPORATION 1995 EMPLOYEE STOCK PURCHASE PLAN
(Full title of plan)
--------------------
<TABLE>
<S> <C>
JAMES R. HAWKINS COPIES TO:
CHAIRMAN AND CHIEF EXECUTIVE OFFICER LAWRENCE D. GINSBURG
6400 IMPERIAL DRIVE LIDDELL, SAPP, ZIVLEY, HILL & LABOON, L.L.P.
WACO, TEXAS 76712 2200 ROSS AVENUE, SUITE 900
(817) 751-1750 DALLAS, TEXAS 75201
(Name, address, and telephone number, (214) 220-4800
including area code, of agent for service)
</TABLE>
--------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
================================================================================================================
Title of each Class Amount Proposed Maximum Proposed Maximum Amount of
of Securities to be Offering Price Aggregate Registration
to be Registered Registered (1) Per Share Offering Price Fee
- ----------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $0.01 par value 100,000 $22.63 (2) $2,262,500 (2) $781
================================================================================================================
</TABLE>
(1) Pursuant to Rule 416 under the Securities Act of 1933, as amended (the
"Securities Act"), there are also being registered such additional shares
of Common Stock as may become issuable pursuant to the antidilution
provisions of the FirstCity Financial Corporation 1995 Employee Stock
Purchase Plan (the "Plan").
(2) Estimated solely for the purpose of calculating the registration fee for
100,000 shares of Common Stock under the Plan on the basis of the average
of the high and low prices on January 29, 1996, for a share of Common Stock
in FirstCity Financial Corporation, as reported on the Nasdaq National
Market, all in accordance with Rule 457(h) promulgated under the
Securities Act.
================================================================================
<PAGE> 2
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 the Registration Statement in accordance
with Rule 428 under the Securities Act of 1933, as amended (the
"Securities Act"), and Note to Part I of Form S-8.
2
<PAGE> 3
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.
The following documents are incorporated by reference in this
Registration Statement, except to the extent that any statement or information
herein is modified, superseded or replaced by a statement or information
contained in any other subsequently-filed document incorporated herein by
reference. Any statement or information so modified will not be deemed a part
of this Registration Statement, except as so modified, and any statement or
information so superseded will not be deemed a part of this Registration
Statement.
(a) The Current Report on Form 8-K dated July 3, 1995, as
amended by the Form 8-K/A executed on August 23, 1995, and the Form
8-K/A No. 2 executed on September 5, 1995 (collectively, the "Form
8-K"), of the Registrant, as filed with the Securities and Exchange
Commission (the "Commission") under the Securities Exchange Act of
1934 (the "Exchange Act"), which contains audited financial
statements of the Registrant for the fiscal year ended December 31,
1994.
(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 audited financial statements contained in
the Form 8-K.
(c) A description of the Registrant's common stock
contained in the Registrant's Form 8-A Registration Statement, filed
with the Commission on July 25, 1995, File No. 0-26500, and
including any amendment or reports 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 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.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
II-1
<PAGE> 4
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 and held harmless 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, the
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 of 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 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 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.
II-2
<PAGE> 5
ITEM 8. EXHIBITS.
The Exhibits to this Registration Statement are listed in the Index
to Exhibits on page II-7 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;
(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
by the Registrant pursuant to Section 13 or Section 15(d) of the
Exchange Act that are incorporated by reference in the Registration
Statement.
(2) That, for the purpose of determining any liability
under the Securities Act, 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, each filing of
the Registrant's annual report pursuant to Section 13(a) or 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the Registration Statement shall be deemed to be a
new registration statement
II-3
<PAGE> 6
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 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
Commission such indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act, 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 January 25, 1996.
FIRSTCITY FINANCIAL CORPORATION
By: /s/ James R. Hawkins
--------------------------------------
James R. Hawkins, Chairman 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
II-4
<PAGE> 7
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.
Pursuant to the requirements of the Securities Act, this registration
statement or amendment thereto 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, Chief Executive January 25, 1996
-------------------------------------------- Officer and Director
James R. Hawkins
/s/ Matt A. Landry, Jr. Chief Financial Officer January 25, 1996
-------------------------------------------- and Director
Matt A. Landry, Jr.
/s/ Gary H. Miller Chief Accounting January 25, 1996
-------------------------------------------- Officer
Gary H. Miller
/s/ Richard E. Bean Director January 25, 1996
--------------------------------------------
Richard E. Bean
Director January ___, 1996
--------------------------------------------
Bart A. Brown, Jr.
Director January ___, 1996
--------------------------------------------
Donald J. Douglass
</TABLE>
II-5
<PAGE> 8
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Rick R. Hagelstein Director January 25, 1996
--------------------------------------------
Rick R. Hagelstein
/s/ David W. MacLennan Director January 25, 1996
--------------------------------------------
David W. MacLennan
/s/ David Palmer Director January 25, 1996
--------------------------------------------
David Palmer
/s/ James T. Sartain Director January 25, 1996
--------------------------------------------
James T. Sartain
/s/ C. Ivan Wilson Director January 25, 1996
--------------------------------------------
C. Ivan Wilson
</TABLE>
II-6
<PAGE> 9
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit Sequentially
Number Exhibit Numbered Page
------ --------------------------------------------------------------------- -------------
<S> <C> <C>
4.1 Amended and Restated Certificate of Incorporation of the Registrant --
filed as Exhibit 3.1 to the Current Report on Form 8-K of the
Registrant dated July 3, 1995 (File No. 1-7614), and incorporated
herein by reference.
4.2 By-Laws of the Registrant, filed as Exhibit 3.2 to the Current --
Report on Form 8-K of the Registrant dated July 3, 1995 (File No. 1-
7614), and incorporated herein by reference.
4.3* FirstCity Financial Corporation 1995 Employee Stock Purchase Plan.
5.1* Opinion of Liddell, Sapp, Zivley, Hill & LaBoon, L.L.P.
24.1 Consent of Liddell, Sapp, Zivley, Hill & LaBoon, L.L.P. (contained --
in Exhibit 5.1).
24.2* Consent of KPMG Peat Marwick LLP.
24.3* Consent of Jaynes, Reitmeier, Boyd & Therrell P.C.
24.4* Consent of Hooks & Gerik
25.1 Power of Attorney (set forth on the signature page). --
</TABLE>
____________________
* Filed herewith.
II-7
<PAGE> 1
EXHIBIT 4.3
<PAGE> 2
FIRST CITY FINANCIAL CORPORATION
1995 EMPLOYEE STOCK PURCHASE PLAN
1. ESTABLISHMENT AND DURATION OF PLAN
FIRSTCITY FINANCIAL CORPORATION ("FIRSTCITY") hereby establishes the
1995 Employee Stock Purchase Plan (the "Plan"), under which employees of
FIRSTCITY and its subsidiaries shall have the right pursuant to Options (as
hereinafter defined) granted under the Plan to purchase shares of common stock,
par value $.01 per share, of FIRSTCITY (the "Common Stock") through payroll
deductions as provided herein. It is intended that the Plan shall qualify
under the provisions of Section 423 of the Internal Revenue Code of 1986, as
amended (the "Code"), and shall be construed accordingly. The Plan shall be
effective as of the date it is originally approved by the Board of Directors
(the "Board") of FIRSTCITY (the "Effective Date"), subject to any registration
requirements under the Securities Act of 1933, as amended (the "Act"), and the
approval of stockholders of FIRSTCITY under Section 423 of the Code, and shall
continue until terminated in accordance with Section 10. Rights to purchase
shares offered pursuant to the Plan are a matter of separate inducement and not
in lieu of any salary or other compensation for the services of any employee.
2. ADMINISTRATION
The Board shall appoint a committee (the "Committee") comprised of not
less than three persons (at least two of whom shall be members of the Board)
who shall not be eligible, and shall not have been eligible at any time within
one year prior thereto, for selection as a person to whom Options may be
granted pursuant to the Plan. The Committee shall designate an administrator
(the "Administrator") of the Plan, who may be, but shall not be required to be,
a member of the Committee. The Committee and the Administrator shall
administer the Plan, all as provided herein. The members of the Committee
shall serve at the pleasure of the Board, and the Administrator shall serve at
the pleasure of the Committee. The Committee shall hold meetings at such times
and places as it may determine and may take action by unanimous written consent
or by means of a meeting held by conference telephone call or similar
communications equipment pursuant to which all persons participating in the
meeting can hear each other. The Committee may request advice or assistance or
employ such other persons as it deems necessary for proper administration of
the Plan. Subject to the express provisions of the Plan and the requirements
of applicable law, the Committee shall have authority, in its discretion, to
determine: (i) when each offering hereunder of Options (hereinafter, an
"Offering") shall be made; (ii) the duration of each Offering; (iii) the dates
on which the purchase period for each Offering shall begin and end; and (iv)
the total number of shares subject to each Offering. Subject to the express
provisions of the Plan, the Committee shall have the discretionary authority:
(a) to construe and interpret Offerings, Options, the Plan and the respective
rights to purchase shares; (b) to prescribe, amend and rescind rules and
regulations relating to the Plan; (c) to supply omissions, reconcile
inconsistencies, and correct defects in the Plan and correct errors made in
- 1 -
<PAGE> 3
the administration of the Plan; and (d) to make all other determinations
necessary or advisable for administering the Plan. Except as to matters which
are herein expressly reserved for determination by the Board, the decisions and
determinations of the Committee with respect to matters referred to in this
Section 3 as within its province shall be final, conclusive and binding upon
all persons, including, but not limited to, FIRSTCITY and its subsidiaries,
their stockholders and directors and any person having any interests in any
Options which are granted hereunder, except that, to the extent required by law
or by the Certificate of Incorporation or Bylaws of FIRSTCITY, the terms of any
Offering shall be subject to ratification by the Board of Directors prior to
the effective date of such Offering.
3. PARTICIPATION
(a) Grant of Options. Except as otherwise provided herein, each
employee of FIRSTCITY or of any corporation, partnership or other legal entity
at least 50% of the combined voting power of which is owned directly or
indirectly by FIRSTCITY (a "Subsidiary"), including, but not limited to, any
corporation which becomes a Subsidiary of FIRSTCITY on or after the adoption
hereof, as are designated by the Committee), shall automatically, on the first
day of an Offering, be granted an option ("Option") hereunder to purchase
shares of Common Stock (employees to whom Options are granted are hereinafter
sometimes referred to as "Participants"), which Option shall continue through
the term of such Offering period. Each such Offering period is referred to
herein as an "Offering Period".
(b) Excluded Employees. Notwithstanding the foregoing, Options
cannot be granted to the following employees: (i) employees whose customary
employment is 20 hours or less per week or not more than five months in any
calendar year; and (ii) employees who have been employed less than ninety (90)
days as of the effective date of an Offering hereunder (notwithstanding the
foregoing, with respect to the first Offering under the Plan, persons who are
employees of FIRSTCITY on the effective date of this Plan shall be deemed to
have satisfied the requirements of this clause (ii)).
(c) 5% Shareholders. Notwithstanding the foregoing, an employee
cannot be granted an Option if such employee, immediately after the Option is
granted, would own stock possessing 5% or more of the total combined voting
power or value of all class of stock of the employee's employer or of any
subsidiary or parent corporation of the employee's employer (in determining
stock ownership of an individual, the rules of Section 424(d) of the Code shall
be applied; in addition, an employee is considered for this purpose as also
owning stock which he or she may purchase under any outstanding stock options
(including an Option)). No Option shall be exercisable for shares of Common
Stock except to the extent of that number of shares which would not cause the
Participant to whom such Option is granted to be a 5% or more shareholder as
described above.
(d) Conditions of an Offering. The terms and conditions of each
Offering shall: (i) state its effective date; (ii) define the duration of such
Offering and the purchase period
- 2 -
<PAGE> 4
thereunder; (iii) specify the maximum number of shares of Common Stock that may
be purchased thereunder.
(e) Rights and Privileges. All employees of FIRSTCITY or any of
its Subsidiaries shall have the same rights and privileges hereunder, except
that the amount of Common Stock which may be purchased by any employee under an
Option shall bear a uniform relationship to the total compensation of employees
in accordance with the maximum authorized payroll deduction or other
limitations as set forth in Section 4(b).
4. TERMS AND CONDITIONS OF OPTIONS
Each Option shall be evidenced by such written document as may be
prescribed by the Administrator or its designee. Options and their exercise
shall be subject to the following requirements:
(a) Option Price. The price to be paid for Common Stock upon
exercise of an Option shall not be less than 85% of the Fair Market Value of
the Common Stock on the last trading day of each Offering Period. "Fair Market
Value" shall be determined as follows:
(i) If, on the relevant date, the Common Stock is traded
on a national or regional securities exchange or on the Nasdaq Stock
Market ("Nasdaq") and closing sale prices for the Common Stock are
customarily quoted, on the basis of the closing sale price on the
principal such securities exchange on which the Common Stock may then
be traded or, if there is no such sale on the relevant date, then on
the immediately preceding day on which a sale was reported;
(ii) If, on the relevant date, the Common Stock is not
listed on any securities exchange or traded on Nasdaq, but
nevertheless is publicly traded and reported without closing sale
prices for the Common Stock being customarily quoted, on the basis of
the mean between the closing bid and asked quotations in such other
over-the-counter market as reported by The National Quotation Bureau
Incorporated on that date, or if such prices shall not have been
reported on such date, then the mean between the closing bid and asked
quotations in the over-the-counter market as reported on the
immediately preceding the day on which such bid and asked prices were
quoted; and
(iii) If, on the relevant date, the Common Stock is not
publicly traded as described in (i) or (ii), on the basis of the good
faith determination of the Committee.
(b) Manner of Exercise and Payment.
(i) FIRSTCITY shall maintain a payroll deduction account
for each Participant. In order to exercise an Option, a Participant
must, on the effective date of an Offering, or thereafter during the
Offering, authorize payroll deductions in advance for future pay
- 3 -
<PAGE> 5
periods, which do not necessarily have to be taken for each
consecutive pay period. Such payroll deductions may not exceed, in
the aggregate for any purchase period, 10% of the total salary, wages
and bonuses paid such Participant during the purchase period specified
in the Offering (or for such portion thereof as the employee is
eligible to participate), subject to appropriate adjustments that
would exclude items such as reimbursement of moving, travel, trade or
business expenses. The Administrator may, in its sole discretion,
establish a minimum amount of any such payroll deduction, and/or may
require that any payroll deduction must be made in whole percentages
(i.e., 1%, 2%, 3%, etc.) and not in any fraction of a percentage.
Such payroll deduction authorizations shall be made by filing with the
Administrator or its designee a completed form prescribed or approved
by the Administrator or its designee. The form will authorize a
regular payroll deduction from the employee's compensation and must
specify the date on which such deduction is to commence, which may not
be retroactive.
(ii) A Participant may at any time and for any reason
withdraw the entire cash balance then accumulated in his or her
payroll deduction account and thereby withdraw from participation in
an Offering. Upon withdrawal of the cash balance in his or her
payroll deduction account, an employee shall cease to be eligible to
participate in the Offering pursuant to which the withdrawn funds were
withheld. Partial withdrawals shall not be permitted. Any cash
balance withdrawn in accordance with this Section 4(b)(ii) may not be
transferred to any payroll deduction account maintained for the
employee pursuant to another offering, whether under the Plan or under
another such plan. No interest shall be paid on cash balances in an
employee's payroll deduction account.
(iii) Subject to Section 4(f), an Option shall be deemed to
be exercised automatically on the last day of each Offering Period
during which a payroll deduction is taken. Such Option shall be
exercised each such time to the extent of the number of full shares of
Common Stock which may be purchased with the funds in the respective
Participant's payroll deduction account. Any amount remaining because
such remaining amount was not sufficient to purchase a full share may
be retained by FIRSTCITY for the Participant's account and applied to
the purchase price of shares of Common Stock pursuant to subsequent
Offerings undertaken by FIRSTCITY, or may be withdrawn therefrom by a
Participant pursuant to Section 4(b)(ii) hereof.
(iv) A Participant may prospectively increase the amount
authorized as payroll deductions or temporarily discontinue payroll
deductions, effective as of the time specified, by filing a notice to
such effect with the Administrator or its designee on a form
prescribed by the Administrator or its designee; provided, however,
that no such change or temporary discontinuance shall be effective
earlier than the next payroll period after receipt of such form; and,
further provided, that any Participant who temporarily discontinues
may not resume payroll deductions until the expiration of ninety (90)
days from the date of discontinuance. Such decrease or discontinuance
shall be effective thereafter until another election authorizing a
payroll deduction is filed with the
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<PAGE> 6
Administrator or its designee in the manner described above. Options
may only be exercised by paying the Option price through a payroll
deduction as provided above. Notwithstanding the foregoing, no
Participant shall be entitled to decrease his or her payroll deduction
more than twice during any Offering Period.
(c) Term of Option. No Option may be exercised after the
expiration of five (5) years from and after the date such Option is initially
granted, and thus each Option shall, unless earlier exercised, expire five (5)
years after the date of its initial grant. Notwithstanding the foregoing, all
Options will expire at such time as the maximum aggregate number of shares of
Common Stock available hereunder, as set forth in Section 5(a), has been issued
pursuant to the exercise of Options, and an Option will expire upon the
effective date of termination of the employment of the Participant to whom such
Option has been granted or on the date of his or her death.
(d) Options Non-Assignable. Except as provided in Section 5(g)
regarding exercise by a beneficiary (or executor or person performing similar
duties), an Option shall be exercisable only by the Participant to whom such
Option has been granted during his or her lifetime, and no Option shall be
assignable by any Participant.
(e) Voting and Other rights as a Stockholder. Each Participant
shall have full stockholder rights with respect to all shares of Common Stock
purchased upon exercise of an Option, including, but not limited to, voting,
dividend and liquidation rights. A Participant shall have no rights as
stockholder with respect to shares subject to an option for which such Option
has not then been exercised. No adjustment shall be made for dividends
(ordinary or extraordinary, whether in cash or in other property) or
distributions or other rights for which the record date is prior to the date on
which a stock certificate is issued, except as provided in Section 5(a).
(f) Annual $25,000 Limit. No employee at any time may be granted
an Option which permits his or her rights to purchase Common Stock hereunder,
and under any other plans qualifying under Section 423 of the Code, of
FIRSTCITY and its subsidiaries, taken in the aggregate, to accrue at a rate
which exceeds $25,000 of fair market value of such stock determined at the time
the Option is granted for each calendar year in which such Option is
outstanding. For purposes hereof, (i) the right to purchase Common Stock under
an Option accrues when the Option (or any portion thereof) first becomes
exercisable during the calendar year; (ii) the right to purchase Common Stock
under an Option accrues at the rate provided in the Option, but in no case may
such rate exceed $25,000 of fair market value of Common Stock (determined at
the time such Option is granted) for any one calendar year; and (iii) a right
to purchase Common Stock which has accrued under one Option may not be carried
over to any other Option. Subject to the other limitations herein, if a
Participant does not purchase the maximum amount of Common Stock in a given
calendar year, the excess of $25,000 over the amount of Common Stock purchased
may be carried over to a subsequent year for a later purchase. Thus, a
Participant may purchase $25,000 of Common Stock for the year of purchase and,
in addition, that amount for each of the preceding years during which the
Option was
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<PAGE> 7
outstanding to the extent that the $25,000 ceiling was not purchased in the
preceding year. However, a Participant may not purchase Common Stock in
anticipation that the limit will not be used n future years.
(g) Retirement, Termination and Death. In the event of a
Participant's retirement or termination of employment, the amount in such
Participant's payroll deduction account shall be refunded to the Participant
and any shares of Common Stock purchased by the Participant that have not been
issued shall be issued and delivered to the Participant. In the event of a
Participant's death, the amount in the deceased Participant's payroll deduction
account may, at the option of the beneficiaries designated by such Participant
pursuant to Section 5(h) (or such Participant's executor or a person performing
similar duties), be utilized to purchase Common Stock at the end of the
Offering Period during which the deceased Participant dies, whereupon all
shares so purchased shall be delivered to such beneficiary (or executor or
person performing similar duties).
(h) Designation of Beneficiary. A Participant may file a written
designation of a beneficiary who is to receive any shares of Common Stock
and/or cash. Such designation of beneficiary may be changed by the Participant
at any time by written notice to the Committee. Upon the death of a
Participant and upon receipt by the Committee of proof of identity and
existence at the Participant's death of a beneficiary validly designated by him
or her under the Plan, FIRSTCITY shall deliver such shares and/or cash to such
beneficiary. In the event of the death of a Participant and in the absence of
a beneficiary validly designated under the Plan who is living at the time of
such Participant's death, FIRSTCITY shall deliver such shares and/or cash to
the executor or administrator of the estate of the Participant, or if no such
executor of administrator has been appointed (to the knowledge of the
Committee), the Committee, in its discretion, may cause the delivery of such
shares and/or cash to the spouse or to any one or more dependents of the
Participant as the Committee may designate. No beneficiary shall, prior to the
death of the Participant by whom he or she has been designated, acquire any
interest in the shares or cash credited to the Participant under the Plan.
5. SHARES SUBJECT TO OPTION
(a) Limitation. No more than an aggregate of one hundred thousand
(100,000) shares of Common Stock may be purchased or issued pursuant to the
exercise of Options; provided, however, the number of shares subject to the
Plan or subject to any Offering or Option under the Plan shall automatically be
adjusted from and after the Effective Date to reflect appropriately any of the
following events: (i) any stock split in the form of a stock dividend payable
in shares of Common Stock; (ii) any recapitalization, reclassification,
split-up, consolidation of, or other change in, the Common Stock; or (iii) any
exchange of the then outstanding shares of Common Stock in connection with a
merger, consolidation, share exchange or other reorganization of FIRSTCITY;
provided, however, that any such adjustment shall comply with the rules of
Section 424(a) of the Code if the transaction is one described in said Section
424(a); provided further that in no event shall any adjustment be made that
would render any Offering other than an offering
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<PAGE> 8
pursuant to an employee stock purchase plan within the meaning of Section 423
of the Code. If an Option under the Plan expires or is terminated unexercised
for any reason, the shares as to which such right so expired or terminated
again may be made subject to Options under the Plan.
(b) Source of Shares. FIRSTCITY will, in accordance with and to
the extent of the exercise of each Option, apply all payroll deductions to the
purchase of full shares of Common Stock for the account of the respective
Participant. Such shares may be available from either authorized but
theretofore unissued shares of Common Stock, Common Stock held in treasury or
shares of Common Stock reacquired by FIRSTCITY or which may be purchased from
Participants who are receiving Common Stock pursuant to the exercise of Options
or from persons who are entitled to receive or who have received Common Stock
from any benefit program maintained by FIRSTCITY upon retirement, other
termination of employment or any other event. Such purchase may be subject to
such terms with respect to price, delivery and other terms and conditions as to
which FIRSTCITY may agree. FIRSTCITY may appoint an independent agent to
purchase the Common Stock, with the independent agent determining the amount of
such purchases, the price to be paid and the broker or dealer, if any, through
or from whom the purchases are to be made. For the purposes of making
purchases, FIRSTCITY may commingle each Participant's funds with those of all
other Participants. The manner and timing of the issuance or purchases of
Common Stock hereunder shall be in accordance with applicable federal
securities laws.
6. ISSUANCE OF STOCK CERTIFICATES
Certificates representing shares of Common Stock purchased under the
Plan may be issued in the name of the employee or, if he or she so indicates on
an appropriate form (i) in his or her name, jointly with a member of his or her
family, with right of survivorship, (ii) in the name of a fiduciary for the
employee (in the event the employee is under a legal disability to have
certificates issued in his or her name) or (iii) in a manner giving effect to
the status of such shares as community property in jurisdictions where
applicable. Upon termination of employment, certificates representing Common
Stock purchased under the Plan will be issued in the name of the employee and
forwarded to his or her account address on file with the Plan's transfer agent
of record. FIRSTCITY shall pay all issue or initial transfer taxes with
respect to the issuance or initial transfer of shares, as well as all fees and
expenses necessarily incurred by FIRSTCITY in connection with such issuance or
initial transfer.
7. SECURITIES REGULATION
FIRSTCITY shall not be required to issue any certificate or
certificates for shares of Common Stock hereunder prior to (i) obtaining any
approval from any governmental agency which FIRSTCITY shall, in its discretion,
determine to be necessary or advisable, (ii) the admission of such shares to
listing on any national securities exchange or Nasdaq on which the shares of
Common Stock may be listed and (iii) the completion of any registration or
other qualification of such shares under any state or federal law or ruling or
regulations of any
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<PAGE> 9
governmental body which FIRSTCITY shall, in its sole discretion, determine to
be necessary or advisable.
8. AMENDMENT
The Plan may, from time to time, be amended or modified by the Board
in such respects as it shall deem advisable, including, without limitation,
amendments to ensure that Options qualify under Section 423 of the Code, or
amendments thereto, to conform to any change in any law or regulation governing
same; provided, however, that no such amendment or modification shall (i)
disqualify the Plan under Section 423 of the Code, (ii) increase the aggregate
number of shares of Common Stock which may be purchased or issued pursuant to
the exercise of Options (other than an increase merely reflecting a change in
capitalization such as a stock dividend or stock split-up), (iii) change the
designation of corporations whose employees may be offered Options, (iv) modify
the requirements as to eligibility for participation in the Plan, or (v)
increase the benefits to officers and directors of FIRSTCITY. Any amendment
which would have the effect of (ii), (iii), (iv) or (v) above must be approved
by FIRSTCITY's stockholders in accordance with Section 423 of the Code and any
securities law requirements.
9. TERMINATION OF PLAN
The Plan shall continue until the first to occur of (i) the maximum
aggregate number of shares of Common Stock available hereunder, as set forth in
Section 5(a) hereof, being acquired pursuant to the exercise of Options, or
(ii) the termination of the Plan by the Board. In the event that the Plan
terminates under the circumstances described in clause (i) above, shares of
Common Stock remaining available for purchase pursuant to Options under the
Plan as of the termination date shall be issued, upon exercise of such Options,
to participating employees on a pro rata basis (in proportion to their payroll
deduction accounts); provided, however, that notwithstanding the foregoing, the
Board may, at any time in its absolute discretion, terminate the Plan and,
unless disallowed by applicable law, terminate any then outstanding Options so
that such terminated Options may not be exercised after the effective date of
such termination. Any cash balances remaining in Participant's payroll
deduction accounts upon termination of the Plan shall be refunded as soon
thereafter as practicable. The powers of the Committee provided by Section 2
hereof to construe and administer the Plan shall nevertheless continue after
such termination.
10. THIRD PARTY BENEFICIARIES
None of the provisions of the Plan shall be for the benefit of or
enforceable by any creditor of a Participant or any other third party (except
for a beneficiary designated by a Participant pursuant to Section 5(h) (or such
Participant's executor or person performing similar duties)). A Participant
may not create a lien, encumbrance or assignment on any portion of the cash
balance accumulated in his or her payroll deduction account or on any shares
covered by an Option before a stock certificate for such shares is issued for
his or her benefit.
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<PAGE> 10
11. GENERAL PROVISIONS
The Plan shall neither impose any obligation on FIRSTCITY or on any
parent or subsidiary corporation to continue the employment of any Participant,
nor impose any obligation on any Participant to remain in the employ of
FIRSTCITY or of any parent or subsidiary corporation. For purposes of the
Plan, an employment relationship shall be deemed to exist between an individual
and a corporation if, at the time of the determination, the individual is an
"employee" of such corporation within the meaning of Section 423(a)(2) of the
Code and the regulations and rulings interpreting such section. For purposes
of the Plan, the transfer of an employee from employment with FIRSTCITY to
employment with a parent or subsidiary of FIRSTCITY, or vice versa, shall not
be deemed a termination of employment of the employee. Subject to the specific
terms of the Plan, all employees granted rights to purchase shares hereunder
shall have the same rights and privileges.
12. GOVERNING LAW
The Plan and rights to purchase shares that may be granted hereunder
shall be governed by and construed and enforced in accordance with the laws of
the State of Delaware without regard to principles of conflicts of laws.
13. EFFECTIVE DATE
The Plan shall be deemed effective upon its approval by the Board of
Directors; provided, however, that no shares of Common Stock shall be purchased
through the operation of Section 4(b) hereof until such time as this Plan has
been approved by the stockholders of FIRSTCITY; and provided further that no
purchase period under the Plan may begin until a registration statement under
the Securities Act of 1933, as amended, covering the shares to be issued under
the Plan has become effective.
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<PAGE> 1
EXHIBIT 5.1
<PAGE> 2
January 29, 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 registration under
the Securities Act of 1933, as amended (the "Act"), of the offer and sale by
the Company of up to 100,000 shares (the "Shares") of common stock in the
Company, par value $0.01 per share, pursuant to a Registration Statement on
Form S-8 (the "Registration Statement") to be filed with the Securities and
Exchange Commission (the "Commission").
In connection with this opinion, we have examined such documents and
records of the Company and such statutes, regulations and other instruments and
certificates as we have deemed necessary or advisable for the purposes of this
opinion. We have assumed that all signatures on all documents presented to us
are genuine, that all documents submitted to us as originals are accurate and
complete, and that all documents submitted to us as copies are true and correct
copies of the originals thereof. We have also relied upon such certificates of
public officials, corporate agents and officers of the Company and such other
certifications with respect to the accuracy of material factual matters
contained therein which were not independently established.
Based on the foregoing, of we are of the opinion that the Shares being
sold by the Company, when issued and paid for pursuant to the FirstCity
Financial Corporation 1995 Employee Stock Purchase Plan, will be validly
issued, fully paid and nonassessable.
This opinion may be filed as an exhibit to the Registration Statement.
Very truly yours,
LIDDELL, SAPP, ZIVLEY, HILL &
LaBOON, L.L.P.
<PAGE> 1
EXHIBIT 24.2
<PAGE> 2
CONSENT OF KPMG PEAT MARWICK LLP
The Board of Directors
FirstCity Financial Corporation
We consent to the incorporation by reference in the registration statement on
Form S-8 of FirstCity Financial Corporation of our report dated February 3,
1995, except for note 1 which is as of February 15 1995 and note 6 which is as
of July 3, 1995, with respect to the combined balance sheets of WAMCO
Partnerships as of December 31, 1994 and 1993 and the related combined
statements of operations, partners' capital and cash flows for each of the
years in the three-year period ended December 31, 1994, which report appears
in the Form 8-K, as amended, of FirstCity Financial Corporation dated July 3,
1995.
Our report referred to above contains an explanatory paragraph that states
various Partnership Agreements were amended during 1994 to create Class A and
Class B Equity partners and merge previously separate partnerships with other
partnerships. The combined financial statements reflect the amendments.
KPMG Peat Marwick LLP
Little Rock, Arkansas
January 25, 1996
<PAGE> 1
EXHIBIT 24.3
<PAGE> 2
CONSENT OF JAYNES, REITMEIER, BOYD & THERRELL, P.C.
The Board of Directors
FirstCity Financial Corporation
We hereby consent to the use in the Form S-8 Registration Statement to be filed
on or about January 25, 1996 of our report dated February 8, 1995 relating to
the financial statements of J-Hawk Corporation and Subsidiaries for the years
ended December 31, 1994 and 1993, which is incorporated by reference.
Jaynes, Reitmeier, Boyd & Therrell, P.C.
January 25, 1996
<PAGE> 1
EXHIBIT 24.4
<PAGE> 2
CONSENT OF HOOKS & GERIK
The Board of Directors
FirstCity Financial Corporation
We hereby consent to the use in the Form S-8 Registration Statement to be filed
on or about January 25, 1996 of our report dated May 14, 1993 relating to the
financial statements of J-Hawk Corporation and Subsidiaries for the years ended
December 31, 1992, which is incorporated by reference.
HOOKS & GERIK
January 25, 1996
