As filed with the Securities and Exchange Commission on June 8, 1998
Commission File No. 333-______
==============================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-----------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-----------------------------
KBK CAPITAL CORPORATION
(Exact name of Registrant as specified in its charter)
Delaware 75-2416103
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
301 Commerce Street
2200 City Center II
Fort Worth, Texas 76102-4122
(817) 258-6000
(Address, including zip code, and telephone number, including area code, of
Registrant's principal executive offices)
1998 EMPLOYEE STOCK PURCHASE PLAN OF KBK CAPITAL CORPORATION
(Full title of the plan)
Jeffrey P. Kassing
301 Commerce Street
2200 City Center II
Fort Worth, Texas 76102-4122
(817) 258-6000
(Name, address and telephone number including area code, of agent for service)
COPIES OF COMMUNICATIONS TO:
Jonathan A. Koff
Chapman and Cutler
111 West Monroe Street
Chicago, Illinois 60603
(312) 845-3000
-------------------------
CALCULATION OF REGISTRATION FEE
- --------------------------------------------------------------------------------
Proposed Proposed
maximum maximum
Amount offering aggregate Amount of
Title of securities to be price per offering registration
to be registered registered share price(1) fee
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Common Shares, 150,000
no par value Shares $12.00 $1,800,000 $531.00
- --------------------------------------------------------------------------------
(1) Estimated pursuant to Rule 457 of the General Rules and Regulations under
the Securities Act of 1933 solely for the purpose of computing the
registration fee.
<PAGE>
PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The documents listed below which have been filed with the Securities and
Exchange Commission (the "COMMISSION") by KBK Capital Corporation (the "COMPANY"
or the "REGISTRANT") pursuant to the Securities Exchange Act of 1934, as amended
(the "EXCHANGE ACT") are incorporated herein by reference to the extent not
modified or superseded by documents subsequently filed or furnished:
(a) Description of the Common Stock of the Company contained in the
Registrant's Registration Statement on Form SB-2, Registration No.
33-77378-D filed with the Commission on April 6, 1994.
(b) Registrant's Annual Report on Form 10-KSB (File No. O-24220) filed
with the Commission on March 27, 1998.
(c) Registrant's Quarterly Report on Form 10-QSB (File No. O-24220)
filed with the Commission on May 14, 1998.
All documents subsequently filed by the Registrant pursuant to Sections
13(a) and (c), 14 and 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment which indicates that all securities offered hereby have
been sold or which deregisters all such securities then remaining unsold, shall
be deemed to be incorporated by reference into this Registration Statement and
to be a part hereof from the date of filing such documents.
The Company undertakes to provide without charge to each person to whom a
copy of the Prospectus relating to this Registration Statement has been
delivered, upon the written or oral request of such person, a copy of any or all
of the documents referred to above which have been or may be incorporated in
such Prospectus by reference, other than exhibits to such documents. Requests
for such copies should be directed to KBK Capital Corporation, 301 Commerce
Street, 2200 City Center II, Fort Worth, Texas 76102, Attention: Legal
Department (telephone: (817) 258-6000).
ITEM 4. NOT APPLICABLE
ITEM 5. NOT APPLICABLE
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the Delaware General Corporation Law ("DGCL") gives
Delaware corporations the power to indemnify present and former officers and
directors under certain circumstances. The Company's Certificate of
Incorporation provides for indemnification by the Company of certain persons
(including officers and directors) in connection with any action, suit or
proceeding brought or threatened against such person by reason of his position
with the Company or service at the request of the Company. The Certificate of
Incorporation further provides that indemnification shall not be exclusive of
any rights to which those indemnified may be entitled under any bylaw,
agreement, vote of stockholders or disinterested directors or otherwise.
In addition, the Company maintains insurance on behalf of any director,
officer, employee or agent of the Company against any liability asserted against
or incurred by them in such capacity or arising out of their status as such
whether or not the Company would have the power to indemnify such director,
officer, employee or agent against such liability under the applicable
provisions of the DGCL or the Company's bylaws. The Company currently maintains
a directors and officers liability policy in the amount of $2,000,000.00.
ITEM 7. NOT APPLICABLE
II-1
<PAGE>
ITEM 8. EXHIBITS
See List of Exhibits on page II-5 hereof.
ITEM 9. UNDERTAKINGS
(a) The 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 (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;
(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 Registrant hereby undertakes that, for the purpose of
determining any liability under the Securities Act, each filing of
the Registrant's annual report pursuant to Section 13(a) or Section
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 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 foregoing
provisions, 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.
II-2
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Fort Worth, State of Texas, on June 8, 1998.
KBK CAPITAL CORPORATION
By: /s/ ROBERT J. MCGEE
Robert J. McGee,
Chairman of the Board,
Chief Executive Officer and Director
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and appoints
Robert J. McGee and Jeffrey P. Kassing and each of them, his true and lawful
attorneys-in-fact and agents, with full power and substitution and
resubstitution for him or her in his or her name, place and stead, in any and
all capacities to sign any and all pre-effective and/or 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 under the Securities Act of 1933.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities indicated on June 8, 1998.
SIGNATURE TITLE
/s/ ROBERT J. MCGEE Chairman of the Board,
Robert J. McGee Chief Executive Officer
and Director
(Principal executive officer)
/s/ JAY K. TURNER Executive Vice President
Jay K. Turner and Chief Financial Officer
(Principal financial officer)
/s/ DEBORAH B. WILKINSON Vice President, Controller and
Deborah B. Wilkinson Assistant Secretary
(Principal accounting officer)
/s/ HARRIS A. KAFFIE Director
Harris A. Kaffie
/s/ THOMAS M. SIMMONS Director
Thomas M. Simmons
/s/ KENNETH H. JONES, JR. Director
Kenneth H. Jones, Jr.
/s/ R. EARL COX, III Director
R. Earl Cox, III
/s/ MARTHA V. LEONARD Director
Martha V. Leonard
II-3
<PAGE>
/s/ DANIEL R. FEEHAN Director
Daniel R. Feehan
/s/ THOMAS L. HEALEY Director
Thomas L. Healey
II-4
<PAGE>
SEQUENTIALLY
EXHIBIT NUMBERED
NUMBER DESCRIPTION PAGE
4.1 1998 Employee Stock Purchase Plan of KBK Capital Corporation.
4.2 Specimen Certificate (incorporated by reference to Exhibit
4.1 to the Registrant's Registration Statement on Form SB-2,
Registration No. 33-77378-D filed with the Commission on
April 6, 1994)
5.1 Opinion of counsel for the Registrant, regarding the legality
of the securities registered hereunder
23.1 Consent of counsel for the Registrant (included in Exhibit
5.1 hereto)
23.2 Consent of KPMG Peat Marwick LLP
24.1 Power of Attorney (included on Page II-3 of this Registration
Statement)
II-5
EXHIBIT 4.1
1998 EMPLOYEE STOCK PURCHASE PLAN OF
KBK CAPITAL CORPORATION
SECTION 1. PURPOSE. The purpose of the Plan is to provide employees of the
Company and its Designated Subsidiaries with an opportunity to purchase Common
Stock of the Company. It is the intention of the Company to have the Plan
qualify as an "Employee Stock Purchase Plan" under Section 423 of the Code. The
provisions of the Plan shall, accordingly, be construed so as to extend and
limit participation in a manner consistent with the requirements of that section
of the Code.
SECTION 2. DEFINITIONS.
(a) "BOARD" shall mean the Board of Directors of the Company.
(b) "CODE" shall mean the Internal Revenue Code of 1986, as amended.
(c) "COMMON STOCK" shall mean the Common Stock, $.01 par value, of the
Company.
(d) "COMPANY" shall mean KBK Capital Corporation, a Delaware corporation.
(e) "COMPENSATION" shall mean regular straight-time earnings excluding
payments for overtime, bonuses and other special payments, commissions and other
incentive payments.
(f) "CONTINUOUS STATUS AS AN EMPLOYEE" shall mean the absence of any
interruption or termination of service as an Employee. Continuous Status as an
Employee shall not be considered interrupted in the case of a leave of absence
agreed to in writing by the Company, PROVIDED that such leave is for a period of
not more than ninety (90) days or reemployment upon the expiration of such leave
is guaranteed by contract or statute.
(g) "DESIGNATED SUBSIDIARIES" shall mean KBK Financial, Inc., a Delaware
corporation, and any other Subsidiaries which have been designated by the Board
from time to time in its sole discretion as eligible to participate in the Plan.
(h) "EMPLOYEE" shall mean any person, including an officer, who is
customarily employed for at least twenty (20) hours per week and more than five
(5) months in a calendar year by the Company or one of its Designated
Subsidiaries.
(i) "EXERCISE DATE" shall mean the last day of each offering period of the
Plan.
(j) "OFFERING DATE" shall mean the first day of each offering period of
the Plan.
(k) "PLAN" shall mean this 1998 Employee Stock Purchase Plan of KBK
Capital Corporation.
<PAGE>
(1) "SUBSIDIARY" shall mean a corporation, domestic or foreign, of which
not less than fifty percent (50%) of the voting shares are held by the Company
or a Subsidiary, whether or not such corporation now exists or is hereafter
organized or acquired by the Company or a Subsidiary.
SECTION 3. ELIGIBILITY. (a) Any person who is an Employee as of the
Offering Date of the first offering period shall be eligible to participate in
such offering period under the Plan; thereafter, any person who is an Employee
fifteen (15) days prior to the Offering Date of a given offering period shall be
eligible to participate in such offering period under the Plan. The eligibility
criteria set forth in this paragraph 3(a) is subject to the requirements of the
paragraph 5 and the limitations imposed by Section 423(b) of the Code.
(b) Any provisions of the Plan to the contrary notwithstanding, no
Employee shall be granted an option under the Plan (i) if, immediately after the
grant, such Employee (or any other person whose stock would be attributed to
such Employee pursuant to Section 424(d) of the Code) would own stock and/or
hold outstanding options to purchase stock possessing five percent (5%) or more
of the total combined voting power or value of all classes of stock of the
Company or of any subsidiary of the Company, or (ii) which permits his rights to
purchase stock under all employee stock purchase plans (described in Section 423
of the Code) of the Company and its subsidiaries to accrue at a rate which
exceeds Twenty Five Thousand Dollars ($25,000) of fair market value of such
stock (determined at the time such option is granted) for each calendar year in
which such option is outstanding at any time.
SECTION 4. OFFERING PERIODS. The Plan shall be implemented by one offering
during each three month period (a calendar quarter) of the Plan. The first
offering period shall commence on July 1, 1998 and shall terminate on September
30, 1998. Subsequent offering periods shall continue until the Plan is
terminated in accordance with paragraph 19 hereof. The Board of Directors of the
Company shall have the power to change the duration of offering periods with
respect to future offerings without shareholder approval if such change is
announced at least fifteen (15) days prior to the scheduled beginning of the
first offering period to be affected.
SECTION 5. PARTICIPATION. An eligible Employee may become a participant in
the Plan by completing a subscription agreement on the form provided by the
Company and filing it with the Company fifteen (15) days prior to the applicable
Offering Date, unless a later time for filing the subscription agreement is set
by the Board for all eligible Employees with respect to a given offering.
SECTION 6 . GRANT OF OPTION. (a) On the Offering Date of each offering
period, each eligible Employee participating in the Plan shall be granted an
option to purchase (at the per share option price) up to a number of whole
shares of the Company's Common Stock determined by dividing the subscription
amount designated on the Employee's subscription agreement (not to exceed an
amount equal to fifteen percent (15%) of his Compensation as of the date of the
commencement of the applicable offering period or another percentage as
determined from time to time by the Board; provided however, such percentage
shall not in
<PAGE>
any event exceed fifteen percent (15%) of a participant's compensation) by
ninety percent (90%) of the fair market value of a share of the Company's Common
Stock on the Offering Date or another percentage as determined from time to time
by the Board; provided however, such percentage shall not in any event be less
than eighty-five percent (85%) (the "Applicable Percentage"), subject to the
limitations set forth in Section 3(b) and 10 hereof. Fair market value of a
share of the Company's Common Stock shall be determined as provided in Section
6(b) herein.
(b) The option price per share of the shares offered in a given offering
period shall be the lower of: (i) the Applicable Percentage multiplied by the
fair market value of a share of the Common Stock of the Company on the Offering
Date; or (ii) the Applicable Percentage multiplied by the fair market value of a
share of the Common Stock of the Company on the Exercise Date. The fair market
value of the Company's Common Stock on a given date shall be determined by the
Board in its discretion; PROVIDED, HOWEVER, that where there is a public market
for the Common Stock, the fair market value per Share shall be the mean of the
bid and asked prices of the Common Stock for such date, as reported in the WALL
STREET JOURNAL or, in the event the Common Stock is listed on a stock exchange,
the fair market value per Share shall be the closing price on such exchange on
such date, as reported in the WALL STREET JOURNAL.
SECTION 7. EXERCISE OF OPTION. (a) Unless a participant withdraws from the
Plan as provided in paragraph 9, his option for the purchase of shares will be
exercised automatically on the Exercise Date of the offering period, and the
maximum number of full shares subject to the option will be purchased for him at
the applicable option price. The shares purchased upon exercise of an option
hereunder shall be deemed to be transferred to the participant on the Exercise
Date. During his lifetime, a participant's option to purchase shares hereunder
is exercisable only by him.
(b) Fractional shares will not be issued under the Plan and any
accumulated payroll deductions which would have been used to purchase fractional
shares will be returned to the Employee promptly following the end of the
offering period, without interest.
SECTION 8. DELIVERY. Within 30 days after the Exercise Date of each
offering period, the Company shall arrange the delivery to each participant, as
appropriate, of a certificate representing the shares purchased upon exercise of
his option in exchange for payment in full by the Employee, on or before such
date as shall be determined by the Board or its committee, of the option price
for all shares so purchased .
SECTION 9. WITHDRAWAL; TERMINATION OF EMPLOYMENT. (a) A participant may
withdraw from participation in the Plan by giving written notice to the Company
within fifteen (15) days prior to the Exercise Date, whereupon his option for
the current period will be automatically terminated.
(b) Upon termination of the participant's Continuous Status as an Employee
prior to the Exercise Date of the offering period for any reason, including
retirement or death, his
<PAGE>
option will be automatically terminated.
(c) In the event an Employee fails to remain in Continuous Status as an
Employee of the Company for at least twenty (20) hours per week during the
offering period in which the employee is a participant, he will be deemed to
have elected to withdraw from the Plan and his option terminated.
(d) A participant's withdrawal from an offering will not have any effect
upon his eligibility to participate in a succeeding offering or in any similar
plan which may hereafter be adopted by the Company.
(e) If a participant withdraws from the Plan under this Section 9, his
payroll deductions will be paid to him promptly after he withdraws, and no
further payroll deductions will be made from his pay during such offering
period.
SECTION 10. STOCK. (a) The maximum number of shares of the Company's
Common Stock which shall be made available for sale under the Plan shall be
150,000 shares, subject to adjustment upon changes in capitalization of the
Company as provided in paragraph 14. If the total number of shares which would
otherwise be subject to options granted pursuant to Section 6 hereof on the
Offering Date of an offering period exceeds the number of shares then available
under the Plan (after deduction of all shares for which options have been
exercised or are then outstanding), the Company shall make a pro rata allocation
of the shares remaining available for option grant in as uniform a manner as
shall be practicable and as it shall determine to be equitable. In such event,
the Company shall give written notice of such reduction of the number of shares
subject to the option to each Employee affected thereby.
(b) The participant will have no interest, voting right or dividend right
or any other right in shares covered by his option until such option has been
exercised.
(c) Shares to be delivered to a participant under the Plan will be
registered in the name of the participant or in the name of the participant and
his spouse.
SECTION 11. ADMINISTRATION. The Plan shall be administered by the Board of
the Company or a committee of members of the Board appointed by the Board. The
administration, interpretation or application of the Plan by the Board or its
committee shall be final, conclusive and binding upon all participants. Members
of the Board who are eligible Employees are permitted to participate in the
Plan, PROVIDED that:
(a) Members of the Board who are eligible to participate in the Plan
may not vote on any matter affecting the administration of the Plan or the
grant of any option pursuant to the Plan.
(b) If a Committee is established to administer the Plan, no member
of the Board who is eligible to participate in the Plan may be a member of
the Committee.
<PAGE>
SECTION 12. TRANSFERABILITY. No rights with regard to the exercise of an
option or to receive shares under the Plan may be assigned, transferred, pledged
or otherwise disposed of in any way (other than by will or the laws of descent
and distribution) by the participant. Any such attempt at assignment, transfer,
pledge or other disposition shall be without effect, except that the Company may
treat such act as an election to withdraw from the Plan in accordance with
paragraph 9.
SECTION 13. REPORTS. Individual accounts will be maintained for each
participant in the Plan. Statements of account will be given to participating
Employees promptly following the Exercise Date, which statements will set forth
the per share purchase price, the number of shares purchased, the amount paid to
the Company in payment of the option shares pursuant to paragraph 8 and the
amount returned to the employee, if any, pursuant to Section 7(b).
SECTION 14. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION. Subject to any
required action by the shareholders of the Company, the number of shares of
Common Stock covered by each option under the Plan which has not yet been
exercised and the number of shares of Common Stock which have been authorized
for issuance under the Plan but have not yet been placed under option
(collectively, the "RESERVES"), as well as the price per share of Common Stock
covered by each option under the Plan which has not yet been exercised, shall be
proportionately adjusted for any increase or decrease in the number of issued
shares of Common Stock resulting from a stock split, reverse stock split, stock
dividend, combination or reclassification of the Common Stock, or any other
increase or decrease in the number of shares of Common Stock effected without
receipt of consideration by the Company; PROVIDED, HOWEVER, that conversion of
any convertible securities of the Company shall not be deemed to have been
"effected without receipt of consideration." Such adjustment shall be made by
the Board, whose determination in that respect shall be final, binding and
conclusive. Except as expressly provided herein, no issue by the Company of
shares of stock of any class, or securities convertible into shares of stock of
any class, shall affect, and no adjustment by reason thereof shall be made with
respect to, the number or price of shares of Common Stock subject to an option.
In the event of the proposed dissolution or liquidation of the Company,
the offering period will terminate immediately prior to the consummation of such
proposed action, unless otherwise provided by the Board. In the event of a
proposed sale of all or substantially all of the assets of the Company, or the
merger of the Company with or into another corporation, each option under the
Plan shall be assumed or an equivalent option shall be substituted by such
successor corporation or a parent or subsidiary of such successor corporation,
unless the Board determines, in the exercise of its sole discretion and in lieu
of such assumption or substitution, that the participant shall have the right to
exercise the option as to all of the optioned stock, including shares as to
which the option would not otherwise be exercisable. If the Board makes an
option fully exercisable in lieu of assumption or substitution in the event of a
merger or sale of assets, the Board shall notify the participant that the option
shall be fully exercisable for a period of fifteen (15) days from the date of
such notice, and the option will terminate upon the expiration of such period.
<PAGE>
The Board may, if it so determines in the exercise of its sole discretion,
also make provision for adjusting the Reserves, as well as the price per share
of Common Stock covered by each outstanding option, in the event that the
Company effects one or more reorganizations, recapitalizations, rights offerings
or other increases or reductions of shares of its outstanding Common Stock, and
in the event of the Company being consolidated with or merged into any other
corporation.
SECTION 15. AMENDMENT OR TERMINATION. The Board of Directors of the
Company may at any time terminate or amend the Plan. Except as provided in
paragraph 14, no such termination can affect options previously granted, nor may
an amendment make any change in any option theretofore granted which adversely
affects the rights of any participant, nor may an amendment be made without
prior approval of the shareholders of the Company (obtained in the manner
described in paragraph 17) if such amendment would increase the number of shares
that may be issued under the Plan.
SECTION 16. NOTICES. All notices or other communications by a participant
to the Company under or in connection with the Plan shall be deemed to have been
duly given when received in the form specified by the Company at the location,
or by the person, designated by the Company for the receipt thereof.
SECTION 17. SHAREHOLDER APPROVAL. (a) Any required approval of the
shareholders of the Company shall be solicited substantially in accordance
with Section 14(a) of the Exchange Act and the rules and regulations
promulgated thereunder.
(b) If any required approval by the shareholders of the Plan itself or of
any amendment to increase the number of shares reserved for issuance under the
Plan is solicited at any time other than in the manner described in paragraph
17(a) hereof, then the Company shall, at or prior to the first annual meeting of
shareholders held subsequent to the granting of an option hereunder to an
officer or director do the following:
(i) furnish in writing to the holders entitled to vote for the Plan
substantially the same information which would be required (if proxies to
be voted with respect to approval or disapproval of the Plan or amendment
were then being solicited) by the rules and regulations in effect under
Section 14(a) of the Exchange Act at the time such information is
furnished; and
(ii) file with, or mail for filing to, the Securities and Exchange
Commission four copies of the written information referred to in
subsection (ii) hereof not later than the date on which such information
is first sent or given to shareholders.
SECTION 18. CONDITIONS UPON ISSUANCE OF SHARES. Shares shall not be issued
with respect to an option unless the exercise of such option and the issuance
and delivery of such shares pursuant thereto shall comply with all applicable
provisions of law, domestic or foreign, including without limitation, the
Securities Act of 1933, as amended, the Securities Exchange Act of 1934, as
amended, the rules and regulations promulgated thereunder, and the
<PAGE>
requirements of any stock exchange upon which the shares may then be listed, and
shall be further subject to the approval of counsel for the Company with respect
to such compliance.
As a condition to the exercise of an option, the Company may require the
person exercising such option to represent and warrant at the time of any such
exercise that the shares are being purchased only for investment and without any
present intention to sell or distribute such shares if, in the opinion of
counsel for the Company, such a representation is required by any of the
aforementioned applicable provisions of law.
SECTION 19. TERM OF PLAN. The Plan shall become effective upon its
adoption by the Board of Directors and approval by the shareholders of the
Company. It shall continue in effect for a term of twenty (20) years unless
sooner terminated under paragraph 15.
EXHIBIT 5.1
June 8, 1998
KBK Capital Corporation
301 Commerce Street
2200 City Center II
Fort Worth, Texas 76102
Re: KBK Capital Corporation
FORM S-8 REGISTRATION STATEMENT
Gentlemen:
We have acted as counsel for KBK Capital Corporation (the "COMPANY") in
connection with the registration statement on Form S-8 (the "REGISTRATION
STATEMENT") of the Company which is being filed with the Securities and Exchange
Commission on June 8, 1998 covering up to 150,000 shares of the Company's Common
Stock, $0.01 par value (the "SHARES"), issuable to eligible employees of the
Company who are participants in the 1998 Employee Stock Purchase Plan of KBK
Capital Corporation (the "PLAN").
As such counsel, we have examined such corporate records and other
documents and matters of law as we have deemed necessary in order to enable us
to express the opinion hereinafter set forth.
Based upon the foregoing, we are of the opinion that the Shares, when
issued and sold pursuant to, and for the consideration expressed in the Plan,
will constitute legally issued, fully paid and nonassessable shares of Common
Stock, $0.01 par value, of the Company.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
CHAPMAN AND CUTLER
EXHIBIT 23.2
CONSENT OF KPMG PEAT MARWICK LLP
The Board of Directors
KBK Capital Corporation
We consent to the incorporation by reference in this Registration Statement on
Form S-8 pertaining to the 1998 Employee Stock Purchase Plan of KBK Capital
Corporation of our report dated January 23, 1998, with respect to the
consolidated balance sheets of KBK Capital Corporation and subsidiaries, and the
related consolidated statements of income, changes in stockholders' equity, and
cash flows included in its Annual Report (Form 10-K) for the year ended December
31, 1997, filed with the Securities and Exchange Commission.
KPMG PEAT MARWICK LLP
Houston, Texas
June 8, 1998
