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EXHIBIT 4.4
STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement (this "Agreement") is entered into
effective as of March 24, 1998 by and between FirstCity Financial Corporation,
a Delaware corporation (the "Company"), and Texas Commerce Shareholders
Company, a Texas corporation ("Purchaser").
SECTION 1
SALE OF STOCK; CLOSING; DELIVERY
1.1 Sale of Stock. Subject to the terms and conditions hereof,
the Company agrees to issue and sell to Purchaser, and Purchaser agrees to buy
from the Company 41,000 shares (the "Shares") of the Company's authorized but
unissued common stock, par value $.01 per share (the "Common Stock"), in
exchange for 17,917 shares (the "Harbor Shares") of the common stock, par value
$.01 per share, of Harbor Financial Mortgage Corporation ("Harbor").
1.2 Closing. The closing of the purchase and sale of the Shares
hereunder (the "Closing") will take place at 10:00 a.m., local time, on a date
specified by the parties no later than March 30, 1998 (the "Closing Date"), at
the offices of Weil, Gotshal & Manges LLP, 700 Louisiana, Suite 1600, Houston,
Texas, or at such other time and place upon which the Company and Purchaser may
mutually agree.
1.3 Payment and Delivery. At the Closing, the Company will
deliver to Purchaser a certificate evidencing the Shares and the Purchaser
shall deliver to the Company a certificate evidencing the Harbor Shares, which
shall be duly endorsed in blank or accompanied by a stock power duly endorsed
in blank.
SECTION 2
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to the Purchaser as of the date
hereof and as of the Closing as follows:
2.1 Organization and Standing; Certificate of Incorporation and
Bylaws. The Company is a corporation duly organized, validly existing and in
good standing under the laws of the state of Delaware. The Company has all
requisite corporate power and authority to own and operate its properties and
assets, and to carry on its business as presently conducted. The Company is
currently qualified to do business as a foreign corporation in each
jurisdiction where the failure to be so qualified would have a material adverse
effect on the properties or business as now conducted or financial condition of
the Company and its subsidiaries, taken as a whole.
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2.2 Corporate Power. The Company has and will have on the Closing
Date all requisite corporate power and authority to execute and deliver this
Agreement, to sell and issue the Shares hereunder and to carry out and perform
its obligations under the terms of this Agreement.
2.3 Authorization. All corporate action on the part of the
Company, its shareholders and its board of directors necessary for the
authorization, execution, delivery and performance of this Agreement by the
Company, the authorization, sale, issuance and delivery of the Shares and the
performance of all of the Company's obligations hereunder has been taken or
will be taken prior to the Closing. This Agreement constitutes a valid and
binding obligation of the Company, enforceable in accordance with its terms,
except as such enforcement is subject to the effect of (i) any applicable
bankruptcy, insolvency, reorganization or other laws relating to or affecting
creditors' rights generally and (ii) general principles of equity (regardless
of whether such enforceability is considered in a proceeding in equity or at
law). The Shares, when issued in compliance with the provisions of this
Agreement, will be validly issued, fully paid and nonassessable; and the Shares
will be free of any pledges, liens, encumbrances or preemptive rights, other
than any liens or encumbrances created by or imposed upon the Purchaser and
restrictions on transfer under federal and state securities laws as set forth
herein.
2.4 SEC Documents. The Company has furnished to Purchaser a copy
of its Annual Report on Form 10-K for the fiscal year ended December 31, 1997,
(the "1997 10-K"). The financial statements of the Company contained in the
1997 10-K fairly present the financial condition and results of operations of
the Company as of the respective dates thereof and for the periods therein
referred to, all in accordance with generally accepted accounting principles
applied on a consistent basis throughout the periods indicated. There has been
no material adverse change in the properties or business of the Company since
the date of the 1997 10-K.
2.5 Compliance with Other Instruments. The execution, delivery
and performance of and compliance with this Agreement, and the issuance of the
Shares, have not resulted and will not result in any violation of, or conflict
with, or constitute a default under, the Company's certificate of incorporation
or bylaws nor result in the creation of any mortgage, pledge, lien, encumbrance
or charge upon any of the properties or assets of the Company.
2.6 Compliance with Laws. In reliance on Purchaser's investment
representations contained in Section 3, the offer, issuance, sale and delivery
of the Shares, as provided in this Agreement, are exempt from the registration
requirements of the Securities Act and all applicable state securities laws,
and will not result in any violation by the Company of any law, rule or
regulation.
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SECTION 3
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
Purchaser hereby represents and warrants to the Company with respect
to the purchase of the Shares as of the date hereof and as of the Closing as
follows:
3.1 Experience. It has substantial experience in evaluating and
investing in private placement transactions of securities in companies similar
to the Company so that it is capable of evaluating the merits and risks of its
investment in the Company and has the capacity to protect its own interests.
3.2 Accredited Investor. It is an "accredited investor" as such
term is defined in Rule 501(a) of the Securities Act of 1933, as amended (the
"Securities Act").
3.3 Private Placement. It understands that the Shares to be
purchased have not been, and will not be, registered under the Securities Act
by reason of a specific exemption from the registration provisions of the
Securities Act.
3.4 Rule 144. It acknowledges that the Shares and the underlying
Common Stock must be held indefinitely unless subsequently registered under the
Securities Act or unless an exemption from such registration is available. It
is aware of the provisions of Rule 144 promulgated under the Securities Act
which permit limited resale of shares purchased in a private placement subject
to the satisfaction of certain conditions, including, among other things, the
existence of a public market for the shares, the availability of certain
current public information about the Company, the resale occurring not less
than one year after a party has purchased and paid for the security to be sold,
the sale being effected through a "broker's transaction" or in transactions
directly with a "market maker" and the number of shares being sold during any
three month period not exceeding specified limitations.
3.5 No Federal or State Approval. It understands that no federal
or state agency has passed upon the Shares or made any finding or determination
as to the fairness of the investment or any recommendation or endorsement of
the Shares.
3.6 Authorization. This Agreement constitutes a valid and legally
binding obligation of Purchaser, enforceable in accordance with its terms,
except as such enforcement is subject to the effect of (i) any applicable
bankruptcy, insolvency, reorganization or other laws relating to or affecting
creditors' rights generally and (ii) general principles of equity (regardless
of whether such enforceability is considered in a proceeding in equity or at
law).
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3.7 Corporate Power. Purchaser has and will have on the Closing Date
all requisite power and authority to execute and deliver this Agreement, to
purchase the Shares, to sell and transfer the Harbor Shares and to carry out
and perform its obligations under the terms of this Agreement. Purchaser is
the record owner of the Harbor Shares, free and clear of any and all liens,
pledges, encumbrances, charges, agreements or claims of any kind whatsoever.
Delivery by Purchaser of the Harbor Shares will convey to the Company good and
marketable title to the Harbor Shares, free and clear of any and all liens,
pledges, encumbrances, charges, agreements or claims of any kind whatsoever.
3.8 Brokers or Finders. The Company has not, and will not, incur,
directly or indirectly, as a result of any action taken by Purchaser, any
liability for brokerage or finders' fees or agents' commissions or any similar
charges in connection with this Agreement.
3.9 Compliance with Other Instruments. The execution, delivery
and performance of and compliance with this Agreement and the purchase of the
Shares, have not resulted and will not result in any violation of, or conflict
with, or constitute a default under, the Purchaser's organizational documents
nor result in the creation of, any mortgage, pledge, lien, encumbrance or
charge upon any of the properties or assets of the Purchaser.
SECTION 4
CONDITIONS TO CLOSING OF PURCHASER
Purchaser's obligations to purchase the Shares at the Closing are, at
the option of the Purchaser, subject to the fulfillment of the following
condition:
The representations and warranties made by the Company in Section 2
hereof shall be true and correct in all material respects as of the Closing
Date with the same force and effect as though the same had been made on and as
of the Closing Date.
SECTION 5
CONDITIONS TO CLOSING OF COMPANY
The Company's obligation to sell and issue the Shares at the Closing
Date is, at the option of the Company, subject to the fulfillment as of the
Closing Date of the following condition:
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The representations and warranties made by the Purchaser in Section 3
hereof shall be true and correct in all material respects as of the Closing
Date with the same force and effect as though the same had been made on and as
of the Closing Date.
SECTION 6
RESTRICTIONS ON TRANSFERABILITY OF SECURITIES;
COMPLIANCE WITH SECURITIES ACT
6.1 Restrictions on Transferability. The Shares to be issued
hereunder are "Restricted Securities" and shall not be sold, assigned,
transferred or pledged except upon the conditions specified in this Section 6,
which conditions are intended to ensure compliance with the provisions of the
Securities Act. To the extent required by law, Purchaser will cause any
proposed purchaser, assignee, transferee, or pledgee of the Shares held by
Purchaser to agree to take and hold such securities subject to the provisions
and upon the conditions specified in this Section 6.
6.2 Restrictive Legend. Each certificate representing (i) the
Shares and (ii) any other securities issued in respect of the Shares upon any
stock split stock dividend, recapitalization, merger, consolidation or similar
event shall (unless otherwise permitted by the provisions of Section 6.3 below)
be stamped or otherwise imprinted with a legend in the following form (in
addition to any legend required under applicable state securities laws):
The shares represented by this certificate have not been
registered under the Securities Act of 1933. The shares may
not be sold, transferred or assigned in the absence of an
effective registration statement for these shares under the
Securities Act of 1933 or an opinion of the Company's counsel
that registration is not require under said Act.
Purchaser consents to the Company making a notation on its records and
giving instructions to any transfer agent of the Shares in order to implement
the restrictions on transfer established in this Section 6.
6.3 Notice of Proposed Transfers. The holder of each certificate
representing Restricted Securities by acceptance thereof agrees to comply in
all respects with the provisions of this Section 6.3. Prior to any proposed
sale, assignment, transfer or pledge of any Restricted Securities (other than a
transfer not involving a change in beneficial ownership), unless there is in
effect a registration statement under the Securities Act covering the proposed
transfer, the holder thereof shall give written notice to the Company of such
holder's intention to effect such
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transfer, sale, assignment or pledge. Each such notice shall describe the
manner and circumstances of the proposed transfer, sale, assignment or pledge
in sufficient detail, and shall, be accompanied, at such holder's expense, by
either (i) a written opinion of legal counsel, who shall be and whose legal
opinion shall be reasonably satisfactory to the Company, addressed to the
Company, to the effect that the proposed transfer of the Restricted Securities
may be effected without registration under the Securities Act or (ii) a "no
action" letter from the staff of the Securities and Exchange Commission (the
"Commission") to the effect that the transfer of such securities without
registration will not result in a recommendation by the staff of the Commission
that action be taken with respect thereto, whereupon the holder of such
Restricted Securities shall be entitled to transfer such Restricted Securities
in accordance with the terms of the notice delivered by the holder to the
Company. Each certificate evidencing the Restricted Securities transferred as
above provided shall bear, except if such transfer is made pursuant to Rule 144
or a registration statement under the Securities Act, the appropriate
restrictive legend set forth in Section 6.2 above, except that such certificate
shall not bear such restrictive legend if in the opinion of counsel for such
holder and the Company such legend is not required in order to establish
compliance with any provision of the Securities Act.
SECTION 7
REGISTRATION OF THE SHARES
7.1 Current Registration. The parties acknowledge that the
Company expects to register 1,542,150 shares of its Common Stock under the
Securities Act in connection with a proposed public offering (the "Offering")
of such shares to be underwritten by Piper Jeffray, Inc., The Robinson-Humphrey
Company, LLC and Sandler O'Neill & Partners, L.P. The Company and the
Purchaser have agreed that the Shares shall be registered and offered for sale
in connection with such Offering, on the same terms and conditions as the other
selling shareholders are offering their shares of Common Stock for sale in the
Offering (including, without limitation, entering into a purchase agreement
with the aforesaid underwriters).
7.2 Registration Rights. The parties have entered into a
Registration Rights Agreement of even date herewith.
7.3 Indemnification; Contribution. (a) Indemnification by the
Company. The Company agrees to indemnify and hold harmless the Purchaser, each
Person, if any, who controls the Purchaser within the meaning of Section 15 of
the Securities Act or Section 20 of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), and the officers, directors, agents, general and
limited partners, and employees of the Purchaser and each such controlling
person from and against any and all losses, claims, damages, liabilities, and
reasonable expenses (including reasonable attorneys' fees and costs of
investigation) directly or
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indirectly arising out of or based upon any untrue statement or alleged untrue
statement of a material fact contained in the registration statement relating
to the Offering (the "Registration Statement") or prospectus relating to the
Offering or in any amendment or supplement thereto or in any preliminary
prospectus, or arising out of or based upon any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, except insofar as such losses,
claims, damages, liabilities or reasonable expenses arise out of, or are based
upon, any such untrue statement or omission or allegation thereof based upon
information furnished in writing to the Company by the Purchaser or on the
Purchaser's behalf expressly for use therein; and the Company will reimburse
such Indemnified Party (as hereinafter defined) as incurred for any legal or
other expenses reasonably incurred by them in connection with enforcing its
rights hereunder or to which it is entitled to indemnity hereunder, provided,
however, that with respect to any untrue statement or omission or alleged
untrue statement or omission made in any preliminary prospectus, the indemnity
agreement contained in this paragraph shall not apply to the extent that any
such loss, claim, damage, liability or expense results from the fact that a
current copy of the prospectus was not sent or given to the persons asserting
any such loss, claim, damage, liability or expense at or prior to the written
confirmation of the sale of the Shares concerned to such person if it is
determined that (A) it was the responsibility of the Purchaser to provide such
person with a current copy of the prospectus, (B) the Purchaser was provided
with a current copy of the prospectus prior to the written confirmation of sale
and (C) such current copy of the prospectus would have cured the defect giving
rise to such loss, claim, damage, liability or expense.
(b) Indemnification by the Purchaser. The Purchaser agrees
to indemnify and hold harmless the Company, and each Person, if any, who
controls the Company within the meaning of either Section 15 of the Securities
Act or Section 20 of the Exchange Act and the officers, directors, agents and
employees of the Company and each such controlling Person to the same extent as
the foregoing indemnity from the Company to the Purchaser, but only with
respect to written information furnished by the Purchaser or on the Purchaser's
behalf expressly for use in the Registration Statement or prospectus relating
to the Offering. The liability of the Purchaser under this Section 7.3(b)
shall be limited to the net amount of proceeds received by the Purchaser
pursuant to the sale of the Shares covered by the Registration Statement or
prospectus.
(c) Conduct of Indemnification Proceedings. If any action or
proceeding (including any governmental investigation) shall be brought or
asserted against any Person entitled to indemnification under Section 7.3(a) or
7.3(b) above (an "Indemnified Party") in respect of which indemnity may be
sought from any party who has agreed to provide such indemnification under
Section 7.3(a) or 7.3(b) above (an "Indemnifying Party"), the Indemnified Party
shall give prompt notice to the Indemnifying Party, provided that the failure
of any Indemnified Party to give notice as provided herein shall not relieve
the Indemnifying Party of
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its obligations under this Section 7.3, except to the extent that such
Indemnifying Party is materially prejudiced by such failure to give notice.
The Indemnifying Party shall assume the defense thereof, including the
employment of counsel reasonably satisfactory to such Indemnified Party, and
shall assume the payment of all reasonable expenses of such defense. Such
Indemnified Party shall have the right to employ separate counsel in any such
action or proceeding and to participate in the defense thereof, but the fees
and expenses of such counsel shall be at the expense of such Indemnified Party
unless (i) the Indemnifying Party has agreed to pay such fees and expenses or
(ii) the Indemnifying Party fails promptly to assume the defense of such action
or proceeding or fails to employ counsel reasonably satisfactory to such
Indemnified Party or (iii) the named parties to any such action or proceeding
(including any impleaded parties) include both such Indemnified Party and
Indemnifying Party (or an Affiliate of the Indemnifying Party), and such
Indemnified Party shall have been advised by counsel that there is a conflict
of interest, or a conflict of interest may reasonably be anticipated to arise,
on the part of counsel employed by the Indemnifying Party to represent such
Indemnified Party (in which case, if such Indemnified Party notifies the
Indemnifying Party in writing that it elects to employ separate counsel at the
expense of the Indemnifying Party, the Indemnifying Party shall not have the
right to assume the defense of such action or proceeding on behalf of such
Indemnified Party). Notwithstanding the foregoing, the Indemnifying Party
shall not, in connection with any one such action or proceeding or separate but
substantially similar related actions or proceedings in the same jurisdiction
arising out of the same general allegations or circumstances, be liable at any
time for the fees and expenses of more than one separate firm of attorneys
(together in each case with appropriate local counsel). The Indemnifying Party
shall not be liable for any settlement of any such action or proceeding
effected without its written consent (which consent will not be unreasonably
withheld), but if settled with its written consent, or if there be a final
judgment for the plaintiff in any such action or proceeding, the Indemnifying
Party shall indemnify and hold harmless such Indemnified Party from and against
any loss or liability (to the extent stated above) by reason of such settlement
or judgment. The Indemnifying Party shall not consent to entry of any judgment
or enter into any settlement that does not include as an unconditional term
thereof the giving by the claimant or plaintiff to such Indemnified Party of a
release, in form and substance satisfactory to the Indemnified Party, from all
liability in respect of such action or proceeding for which such Indemnified
Party would be entitled to indemnification hereunder.
(d) Contribution. If the indemnification provided for in
this Section 7.3 is unavailable to the Indemnified Parties in respect of any
losses, claims, damages, liabilities, expenses or judgments referred to herein,
then each such Indemnifying Party, in lieu of indemnifying such Indemnified
Party, shall contribute to the amount paid or payable by such Indemnified Party
as a result of such losses, claims, damages, liabilities, expenses and
judgments as between the Company on the one hand and the Purchaser on the
other, in such proportion as is appropriate to reflect the relative fault of
the Company and of the Purchaser in connection with
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the statements or omissions which resulted in such losses, claims, damages,
liabilities or judgments, as well as any other relevant equitable
considerations. The relative fault of the Company on the one hand and of the
Purchaser on the other shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by such party, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and the Purchaser agree that it would not be just
and equitable if contribution pursuant to this Section 7.3(d) were determined
by pro rata allocation or by any other method of allocation which does not take
account of the equitable considerations referred to in the immediately
preceding paragraph. The amount paid or payable by an Indemnified Party as a
result of the losses, claims, damages, liabilities or judgments referred to in
the immediately preceding paragraph shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably incurred by
such Indemnified Party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 7.3(d), the
Purchaser shall not be required to contribute any amount in excess of the
amount by which the net amount of proceeds received by the Purchaser pursuant
to the sale of Shares in the Offering exceeds the amount of any damages which
the Purchaser has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No Person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any Person who was not
guilty of such fraudulent misrepresentation.
(e) Survival. This Section 7.3 shall survive the
consummation of the Offering.
SECTION 8
MISCELLANEOUS
8.1 Governing Law. This Agreement shall be governed and construed
in all respects in accordance with the laws of the State of Texas as applied to
agreements made and performed in Texas by residents of the State of Texas.
8.2 Successors and Assigns. Except as otherwise provided herein,
the provisions hereof shall inure to the benefit of and be binding upon, the
successors, assigns, heirs, executors and administrators of the parties hereto.
8.3 Entire Agreement; Amendment. This Agreement and the other
documents delivered pursuant hereto at the Closing constitute the full and
entire understanding and
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agreement between the parties with regard to the subjects hereof and thereof,
and no party shall be liable or bound to any other party in any manner by any
warranties, representations or covenants except as specifically set forth
herein or therein. Except as expressly provided herein, neither this Agreement
nor any term hereof may be amended, waived, discharged or terminated other than
by a written instrument signed by the party against whom enforcement of any
such amendment, waiver, discharge or termination is sought.
8.4 Confidentiality. Purchaser acknowledges and agrees that any
information or data it has acquired from the Company, not otherwise properly in
the public domain, was received in confidence. Purchaser agrees not to
divulge, communicate or disclose, except as may be required by law or for the
performance of this Agreement, or use to the detriment of the Company or for
the benefit of any other person or persons, or misuse in any way, any
confidential information of the Company.
8.5 Notices, etc. Unless otherwise provided, any notice, request,
demand or other communication required or permitted under this Agreement shall
be given in writing and shall be deemed effectively given upon personal
delivery to the party to be notified, or when sent by telex or telecopier (with
receipt confirmed), or one business day after deposit with overnight courier or
three business days after deposit with the United States Post Office, by
registered or certified mail, postage prepaid and addressed as follows (or at
such other address as a party may designate by notice to the other):
If to the Company:
FirstCity Financial Corporation
P.O. Box 8216
Waco, Texas 76714-8216
Attention: Matt A. Landry, Jr.
Telephone: (254) 751-1750
Facsimile: (254) 751-7648
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with a copy to:
Weil, Gotshal & Manges LLP
700 Louisiana, Suite 1600
Houston, TX 77002
Attention: Steven D. Rubin
Telephone: (713) 546-5030
Facsimile: (713) 224-9511
If to the Purchaser:
Texas Commerce Shareholders Company
717 Travis, 6th Floor
Houston, TX 77002
Attention: Bob Salcetti
Telephone: (713) 216-5367
Facsimile: (713) 216-2082
with a copy to:
Liddell Sapp Zivley Hill & LaBoon LLP
3500 Chase Tower
Houston, TX 77002
Attention: Marcus A. Watts
Telephone: (713) 226-1408
Facsimile: (713) 223-3717
8.6 Severability. In the event that any provision of this
Agreement becomes or is declared by a court of competent jurisdiction to be
illegal, invalid, unenforceable or void, this Agreement shall continue in full
force and effect without said provision. In such event, the parties shall
negotiate, in good faith, a legal, valid and enforceable substitute provision
which most nearly effects the intent of the parties in entering into this
Agreement.
8.7 Titles and Subtitles. The titles and subtitles used in this
Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
8.8 Facsimile Signatures. Any signature page delivered by a fax
machine or telecopy machine shall be binding to the same extent as an original
signature page, with regard to any
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agreement subject to the terms hereof or any amendment thereto. Any party who
delivers such a signature page agrees to later deliver an original counterpart
to any party which requests it.
8.9 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be enforceable against the parties actually
executing such counterparts, and all of which together shall constitute one
instrument.
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The foregoing agreement is hereby executed as of the date first above
written.
FIRSTCITY FINANCIAL CORPORATION
By: /s/ MATT LANDRY, JR.
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Name: Matt Landry, Jr.
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Title: Executive Vice President
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TEXAS COMMERCE SHAREHOLDERS COMPANY
By: /s/ KENNETH TILTON
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Name: Kenneth Tilton
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Title:
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