Attached files

file filename
EX-31.2 - EX-31.2 - FIRSTCITY FINANCIAL CORPa2198344zex-31_2.htm
EX-31.1 - EX-31.1 - FIRSTCITY FINANCIAL CORPa2198344zex-31_1.htm

Use these links to rapidly review the document
TABLE OF CONTENTS

Table of Contents

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549

Form 10-K/A
(Amendment No. 1)

(Mark One)    

ý

 

ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

For the fiscal year ended December 31, 2009

or

o

 

TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

For the transition period from            to          

Commission File No. 033-19694



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 Number)

6400 Imperial Drive, Waco, TX
(Address of Principal Executive Offices)

 

76712
(Zip Code)

(254) 761-2800
(Registrant's telephone number, including area code)

         Securities registered pursuant to Section 12(b) of the Act:

Title of Each Class   Name of Each Exchange on Which Registered
Common Stock, par value $.01   The NASDAQ Global Select Market

         Securities registered pursuant to Section 12(g) of the Act: None

         Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act. Yes o    No ý

         Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or Section 15(d) of the Act. Yes o    No ý

         Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes ý    No o

         Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files). Yes o    No o

         Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K is not contained herein, and will not be contained, to the best of registrant's knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10-K or any amendment to this Form 10-K. ý

         Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of "large accelerated filer," "accelerated filer" and "smaller reporting company" in Rule 12b-2 of the Exchange Act.

Large accelerated filer o   Accelerated filer o   Non-accelerated filer o
(Do not check if a
smaller reporting company)
  Smaller reporting company ý

         Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act). Yes o    No ý

         The aggregate market value of the common equity held by non-affiliates of the registrant as of June 30, 2009 was $37,450,977 based on the closing price of the common stock of $4.41 per share on such date as reported on the NASDAQ Global Select Market.

         The number of shares of the registrant's common stock outstanding at April 15, 2010 was 10,008,824.


Table of Contents


FIRSTCITY FINANCIAL CORPORATION

TABLE OF CONTENTS

2


Table of Contents


EXPLANATORY NOTE

        FirstCity Financial Corporation (the "Company," "FirstCity," "we" or "us") is filing this Amendment No. 1 on Form 10-K/A ("Amended Report") to its Annual Report on Form 10-K for the period ended December 31, 2009, which was filed with the Securities and Exchange Commission ("SEC") on March 31, 2010 ("Original Report"), for the sole purpose of including disclosures under Part III, Items 10 through 14, of Form 10-K, which were not included in the Original Report. Our definitive proxy statement for our 2010 Annual Meeting of Stockholders will not be filed with the SEC within 120 days after the end of our fiscal year ended December 31, 2009; therefore, we are filing this Amended Report to provide the incorporated information within the required time period.

        Except as described above, the Company has not modified or updated disclosures presented in the Original Report in this Amended Report. Accordingly, this Amended Report does not reflect events occurring after the filing of our Original Report or modify or update those disclosures, including the exhibits to the Original Report, affected by subsequent events. As such, our Original Report continues to speak as of March 31, 2010 (the date it was filed with the SEC). Accordingly, this Amended Report should be read in conjunction with the Original Report and our other reports filed with the SEC subsequent to the filing of our Original Report, including any amendments to those filings.

        In addition, as required by Rule 12b-15 under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), new certifications by our principal executive officer and principal financial officer are filed as exhibits to this Amendment under Item 15 of Part IV hereof.

3


Table of Contents


PART III

        

Item 10.    Directors, Executive Officers and Corporate Governance.

Board of Directors

        Information concerning each member of the FirstCity's Board of Directors (the "Board") is set forth below:

Name
  Age   Position

Richard E. Bean

    66   Chairman of the Board

C. Ivan Wilson

    82   Vice Chairman of the Board

James T. Sartain

    61   President, Chief Executive Officer and Director

Dane Fulmer

    59   Director

Robert E. Garrison, II

    68   Director

D. Michael Hunter

    67   Director

F. Clayton Miller

    46   Director

        Richard E. Bean has served as a Director of FirstCity since its acquisition by merger (the "Merger") of First City Bancorporation of Texas, Inc. ("FCBOT") in July 1995 and Chairman of the Board since 2005. Since 1976, Mr. Bean has served as the Executive Vice President and a Director of Pearce Industries, Inc., a privately-held company that markets a variety of oilfield equipment and construction machinery. Mr. Bean served as Chief Financial Officer of Pearce Industries from 1976 to 2004. Mr. Bean served as a member of the Portfolio Committee of the FirstCity Liquidating Trust from the Merger through the termination of the Trust in January 2004. Prior to the Merger, Mr. Bean was Chairman of the Official Committee of Equity Security Holders of FCBOT. Mr. Bean is currently a Director, Chairman of the Audit Committee, and a member of the Compensation Committee of WCA Waste Corporation, a publicly-owned solid waste collection and disposal company, and a Director and the Chairman of the Audit Committee of Sanders Morris Harris Group Inc., a publicly-owned financial services firm. Mr. Bean is also a stockholder and director of several private closely-held corporations. Mr. Bean received a M.B.A. in Accounting and a Bachelor of Business Administration in Finance from the University of Texas at Austin and has been a Certified Public Accountant since 1968. Mr. Bean was selected to serve as a Director of FirstCity due to his wide-ranging experience, his depth of knowledge of FirstCity and his extensive financial experience. Mr. Bean qualifies as an "audit committee financial expert" under the SEC's guidelines.

        C. Ivan Wilson has served as Vice Chairman of the Board of FirstCity since the Merger. From February 1998 to June 1998, Mr. Wilson was Chairman, President and Chief Executive Officer of Mercantile Bank, N.A., Corpus Christi, Texas, a national banking organization. Mr. Wilson was Chairman of the Board and Chief Executive Officer of FCBOT from 1991 to the Merger. Prior to 1991, Mr. Wilson was the Chief Executive Officer of FirstCity, Texas—Corpus Christi, one of FCBOT's banking subsidiaries. Mr. Wilson was selected to serve as a Director of FirstCity because of his significant understanding of the Company's operations and his extensive experience in the financial services industry.

        James T. Sartain has served as a Director and President of FirstCity since the Merger and Chief Executive Officer since January 2001. Prior to January 2001, Mr. Sartain was President and Chief Operating Officer of FirstCity. From 1988 to the Merger, Mr. Sartain was President and Chief Operating Officer of J-Hawk Corporation. Mr. Sartain was selected to serve as a Director of the FirstCity because of his understanding and deep institutional knowledge of the Company's operations, his extensive employment experience with FirstCity and his significant industry and management expertise.

4


Table of Contents

        Dane Fulmer has served as a Director of FirstCity since May 1999. Mr. Fulmer is an independent consultant and provides risk management services. From August 1995 until January 2004, Mr. Fulmer served as Executive Vice President and Director of Risk Management for John Taylor Financial Group, a broker/dealer and investment advisory firm that Mr. Fulmer co-founded in 1995. From July 1991 until August 1996, Mr. Fulmer served as Executive Vice President of Merchants Investment Center, a broker/dealer and investment advisory firm, and as portfolio manager for Merchants National, the parent company. Mr. Fulmer's experience includes management of investment securities for commercial banks and corporations, and he has over 38 years experience in managing financial assets. Mr. Fulmer's investment management expertise and extensive experience identifying and evaluating risks in corporate operations provides FirstCity with a skilled investment advisor and invaluable resource for assessing and managing risks and planning for corporate strategy.

        Robert E. Garrison, II has served as a Director of FirstCity since May 1999. Mr. Garrison currently serves as Chairman of the Audit Committee and Director of Crown Castle International (a publicly-owned company that is an independent owner and operator of shared wireless infrastructures), and as Director of Prosperity Bank (a bank subsidiary of Prosperity Bancshares, Inc., a publicly-owned financial holding company). In addition, Mr. Garrison is the Chairman of the Executive Committee of Sanders Morris Harris Group ("SMHG"), a publicly-owned financial services company. From January 1999 until February 2009, Mr. Garrison served as President of SMHG. Mr. Garrison previously served as Executive Vice President and Director of Harris Webb & Garrison, and also served as Chairman, Chief Executive Officer, and Director of Pinnacle Management & Trust Co. (Mr. Garrison co-founded both of these investment companies in 1994). Mr. Garrison is also a stockholder and director of several private closely-held corporations. Mr. Garrison has over 40 years experience in the securities industry and is a Chartered Financial Analyst. As the Chairman of the Audit Committee of a public company and former principal executive officer of another public company, Mr. Garrison provides invaluable insight and guidance on the issues of corporate strategy and risk management.

        D. Michael Hunter has served as a Director of FirstCity since August 2005. From March 2005 until April 2008, Mr. Hunter served as the Vice Chairman of the Board of Directors of Prosperity Bancshares, Inc. (a publicly-owned financial holding company) and served as a Director of Prosperity Bank. Mr. Hunter previously served as Chairman, President and Chief Executive Officer and a Director of First Capital Bankers, Inc. from 1995 until its merger with and into Prosperity Bancshares, Inc. on March 1, 2005. Mr. Hunter also served as Chairman and Chief Executive Officer of First Capital Bank from 1995 until March 2005. Prior to 1995, Mr. Hunter served as President and Chief Operating Officer of Victoria Bancshares, Inc. and Victoria Bank & Trust Company from 1988 to June 1994. Prior to 1988, Mr. Hunter served 24 years with FCBOT. Mr. Hunter is an experienced leader of major banking organizations and brings to the Board of Directors of FirstCity strong executive management skills and experience serving on the boards of other public companies.

        F. Clayton Miller has served as a Director of FirstCity since February 2006. Mr. Miller is a founding partner at Stone Arch Capital, a private equity fund based in Minneapolis, Minnesota. From 1998 to 2004, Mr. Miller was the Managing Partner of Churchill Equity Partners, the private equity arm of Churchill Capital, Inc. Mr. Miller is a graduate of the University of Michigan (B.A.) and Northwestern University School of Law (J.D., cum laude), and received a degree from the Harvard Business School (M.B.A., with honors). Mr. Miller has over 15 years of private equity investing and legal experience. Mr. Miller brings to the Board of Directors keen business and financial judgment and an extensive understanding of the Company's industry, as well as significant leadership experience.

Corporate Governance

        The Board has reviewed the provisions of the Sarbanes-Oxley Act of 2002, the rules of the SEC and the NASDAQ Stock Market governance listing standards and determined that the Company is in compliance with such standards. The Board has determined that Messrs. Bean, Fulmer, Garrison,

5


Table of Contents


Hunter, Miller and Wilson are independent Directors under the NASDAQ Stock Market Rules. Mr. Sartain, the Company's President and Chief Executive Officer, was deemed not to be an independent director by virtue of his employment with the Company. Mr. Richard E. Bean, an independent Director, serves as Chairman and presides over executive sessions of the non-management Directors.

        Board Meetings.    During 2009, the Board held four meetings. Each of the directors attended at least 75% of the total number of meetings of the Board and at least 75% of the meetings of the Board committees of which he was a member in 2009. All of the directors attended the Company's 2009 Annual Meeting of Stockholders. The Company has encouraged the attendance of all Directors at the annual meetings of stockholders and has scheduled its stockholders' meetings to achieve that goal. The Company has not adopted a formal policy related to the attendance of Directors at annual meetings of stockholders.

        Committees.    The Company's Board has the following standing committees: Executive Committee; Audit Committee; Compensation Committee; and Nominating and Corporate Governance Committee. Members of these committees generally are elected annually at the regular meeting of the Board immediately following the annual meeting of stockholders. Further information concerning the Board's standing committees appears below.

        Executive Committee.    The Executive Committee consisted of Messrs. Sartain (Chairman) and Bean during 2009. Subject to certain limitations specified by the Company's Bylaws and the Delaware General Corporation Law, the Executive Committee is authorized to exercise the powers of the Board when the Board is not in session. During 2009, the Executive Committee held no meetings, but did take action on one occasion by unanimous consent.

        Audit Committee.    The Audit Committee consisted of Messrs. Bean (Chairman), Garrison and Wilson during 2009. The Audit Committee is a standing committee of the Board. The Board has determined that all members of the Audit Committee are independent directors under the rules of the NASDAQ Stock Market and the rules and regulations of the SEC. The Board has determined that Mr. Bean qualifies as an "audit committee financial expert" under applicable SEC and NASDAQ regulations. The Audit Committee has a charter adopted by the Board that sets forth its membership requirements, authority and responsibilities. A copy of the Audit Committee Charter is available on our website at www.fcfc.com under the "Investors" section. During 2009, the Audit Committee held six meetings.

        The Audit Committee meets with management to consider the adequacy of the internal controls of the Company and the objectivity of financial reporting. Its primary function is to assist the Board in fulfilling its oversight responsibilities by reviewing

    the financial information to be provided to the stockholders, potential stockholders, the investment community and others;

    the systems of internal controls established by the management and the Board; and

    the audit process.

        The Audit Committee also meets with the independent auditors and with appropriate Company financial personnel about these matters. The functions of the Audit Committee also include recommending to the Board which firm of independent public accountants should be engaged by the Company to perform the annual audit, reviewing annually the Company's Audit Committee Charter, approving certain other types of professional services rendered to the Company by the independent public accountants and considering the possible effects of such services on the independence of such public accountants. The independent auditors periodically meet alone with the Audit Committee and have unrestricted access to the Audit Committee.

6


Table of Contents

        Compensation Committee.    The Compensation Committee consisted of Messrs. Wilson (Chairman), Garrison, Hunter and Miller during 2009. The Compensation Committee is a standing committee of the Board. The Board has determined that all members of the Compensation Committee are (i) "independent directors" under the listing standards of the NASDAQ Stock Market, (ii) "non-employee directors" within the meaning of Rule 16b-3 under the Exchange Act, and (iii) "outside directors" within the meaning of Section 162(m) of the Internal Revenue Code of 1986, as amended. The Compensation Committee has a charter that has been adopted by the Board that sets forth its membership requirements, authority and responsibilities. A copy of the Compensation Committee Charter is available on our website at www.fcfc.com under the "Investors" section. During 2009, the Compensation Committee held three meetings .

        The Compensation Committee is responsible for evaluating and developing the compensation policies applicable to the executive officers of the Company and its subsidiaries. The Compensation Committee's charter sets forth the following responsibilities, among others, for the committee:

    Review the compensation philosophy and strategy in regard to achieving the Company's objectives and performance goals and the long-term interests of the Company's stockholders;

    Administer the Company's incentive compensation and stock option and other equity based plans; and

    Review annually and make recommendations to the Board with respect to the base salary, incentive compensation, deferred compensation, stock options, performance units and other equity-based awards for the President and Chief Executive Officer and all other executive officers.

        In essence, the Compensation Committee's fundamental responsibility is to administer the Company's compensation program for its executive officers, which generally include those employees whose job responsibilities and policy-making authority are the broadest and most significant. The Compensation Committee is responsible for ensuring that the Company's compensation policies and practices support the successful recruitment, development, and retention of the executive talent required by the Company to achieve its business objectives.

        Recommendations regarding compensation of the Company's executive officers (other than the compensation of the President and Chief Executive Officer), including base salary adjustment, performance-based bonuses, additional bonuses and equity awards, are submitted by the Company's President and Chief Executive Officer to the Compensation Committee. The Compensation Committee reviews the recommendations of the President and Chief Executive Officer and makes all final decisions regarding the compensation of the President and Chief Executive Officer and the other executive officers. The compensation of the President and Chief Executive Officer and the other executive officers is subject to the review, modification and approval of the Board, except that (1) the President and Chief Executive Officer does not participate in the review, modification or approval of the recommendations of the Compensation Committee, with respect to his compensation and (2) all reviews, modifications and approvals with respect to awards under the Company's stock option and award plans are made solely by the Compensation Committee.

        Nominating and Corporate Governance Committee.    The Nominating and Corporate Governance Committee consisted of Messrs. Fulmer (Chairman), Garrison, Hunter and Miller during 2009. The Nominating and Corporate Governance Committee is a standing committee of the Board. The Board has determined that each of the members of the Nominating and Corporate Governance Committee qualified as an independent Director under the rules of the NASDAQ Stock Market and rules and regulations of the SEC. The Nominating and Corporate Governance Committee has a charter that has been adopted by the Board that sets forth its membership requirements, authority and responsibilities. The full text of the Charter of the Nominating and Corporate Governance Committee is available on

7


Table of Contents


our website at www.fcfc.com under the "Investors" section. The Nominating and Corporate Governance Committee recommends the number of Board positions to be filled in accordance with the Bylaws of the Company and the persons to be nominated to serve in those positions. In this regard, the Nominating and Corporate Governance Committee considers the performance of incumbent directors in determining whether such directors should be nominated to stand for reelection. The Nominating and Corporate Governance Committee also reviews the recommendations of the Chief Executive Officer related to the appointment of executive officers and proposed personnel changes related to such officers and is responsible for conducting an annual review of the Company's Code of Business Conduct and Ethics. During 2009, the Nominating and Corporate Governance Committee held no meetings, but did take action on one occasion by unanimous consent.

Executive Officers

        Information concerning the executive officers of FirstCity, who do not serve on the Board, is set forth below:

Name
  Age   Position
James T. Sartain     61   President and Chief Executive Officer
Jim W. Moore     59   Executive Vice President, Chief Operating Officer, Treasurer, and Director of Servicing
J. Bryan Baker     49   Senior Vice President and Chief Financial Officer
Terry R. DeWitt     52   Senior Vice President, Director of Acquisitions
Joe S. Greak     61   Senior Vice President, Director of Tax
James C. Holmes     53   Senior Vice President, Director of Finance
Mark B. Horrell     47   Vice President

        Jim W. Moore serves as Executive Vice President and Chief Operating Officer, and is the Managing Director of Servicing. Mr. Moore rejoined FirstCity in February 2008 after spending the previous seven years with Santander Consumer USA Inc., formerly known as Drive Financial Services LP ("Drive"), a national subprime auto indirect lender with a managed portfolio exceeding $5 billion. Mr. Moore served in various capacities at Drive including Director of Securitizations, Chief Financial Officer, and Treasurer. Mr. Moore had a long-term association with FirstCity as a senior-level officer prior to the formation of Drive, which resulted as part of a sale to Bank of Scotland and reorganizations of FirstCity which occurred in 2000 and 2004. Mr. Moore's past experiences also include serving as the President of three different Texas commercial banks. Mr. Moore has more than 35 years of financial services and banking experience.

        J. Bryan Baker has served as Senior Vice President and Chief Financial Officer of FirstCity since June 2000. Mr. Baker's previous positions with FirstCity included Vice President and Treasurer from August 1999 to June 2000, Vice President and Controller from November 1996 to August 1999, and Vice President and Assistant Controller from 1995 to November 1996. From 1990 to 1995, Mr. Baker was with Jaynes, Reitmeier, Boyd & Therrell, P.C., an independent public accounting firm, involved in both auditing and consulting. From 1988 to 1990, Mr. Baker served as the Controller of a Texas commercial bank holding company. Mr. Baker is a Certified Public Accountant.

        Terry R. DeWitt has served as Senior Vice President responsible for Due Diligence and Investment Evaluation of FirstCity since the Merger, and he currently serves as the Managing Director of Acquisitions. Mr. DeWitt served as Senior Vice President responsible for Due Diligence and Investment Evaluation of J-Hawk Corporation from 1992 to the Merger. Prior to 1992, Mr. DeWitt served in executive management roles, including President, with three different Texas commercial banks. Mr. DeWitt has more than 25 years of financial services and banking experience.

8


Table of Contents

        Joe S. Greak has served as Senior Vice President and Director of Tax of FirstCity since the Merger. Mr. Greak was the Tax Manager of FCBOT from1993 through the date of the Merger. From 1992 to 1993, Mr. Greak was the Tax Manager of New First City—Houston, N.A. Prior to 1992, he was Senior Vice President and Tax Director of First City, Texas—Houston, N.A. Mr. Greak is a Certified Public Accountant.

        James C. Holmes has served as Senior Vice President of FirstCity since the Merger, and has served as the Director of Finance and Treasurer of the Company since June 2008. He also served as Treasurer of the Company from the Merger to August 1999 and from June 2000 to February 2008. Prior to the Merger, he served as Senior Vice President and Treasurer of J-Hawk Corporation. From 1988 to 1991, Mr. Holmes served as Vice President in commercial lending for a Texas commercial bank. Mr. Holmes has more than 25 years of experience in the financial services and banking sector.

        Mark B. Horrell joined FirstCity in 2008 and currently serves as Vice President and co-head of the U.S. acquisition platform. Previous to his employment at FirstCity, Mr. Horrell spent 10 years as an organizing partner, principal and portfolio manager in various private investment fund vehicles focused on the purchase and management of a wide array of securities including fixed income and equity investment instruments. Prior to his fund creation and management tenure, Mr. Horrell served for 15 years as a commercial banker in various capacities at an Oklahoma commercial bank, including Investment Portfolio Manager and Loan Review Manager. Mr. Horrell received a BBA and MBA from the University of Oklahoma, and is a Certified Public Accountant and Registered Investment Advisor.

Section 16(a) Beneficial Ownership Reporting Compliance

        Section 16(a) of the Exchange Act requires the Company's directors and executive officers, and persons who own more than 10% of the Company's common stock, to file reports of their ownership, and any changes in that ownership, with the SEC. Such persons are required by applicable regulations to furnish us with copies of all reports filed pursuant to Section 16(a). Based solely on our review of such reports and written representations from certain reporting persons that no other reports were required, we believe that for the fiscal year ended December 31, 2009, our executive officers, directors and 10% beneficial owners complied with all Section 16(a) filing requirements.

Code of Business Conduct and Ethics

        The Company has adopted a Code of Business Conduct and Ethics which is applicable to the directors, executive officers and all employees of the Company, including the principal executive officer, principal financial officer and principal accounting officer. The Code of Business Conduct and Ethics is available on our website at www.fcfc.com under the "Investors" section.

9


Table of Contents


Item 11.    Executive Compensation.

Summary Compensation Table

        The following table sets forth certain information concerning compensation for fiscal years 2009 and 2008 to (1) the Company's Chief Executive Officer and the Company's other two most-highly compensated executive officers (collectively, the "Named Executive Officers").

Name and Principal Position
  Year   Salary
($)
  Bonus
($)
  Option
Awards(1)
($)
  All Other
Compensation(2)
($)
  Total
Compensation
($)
 

James T. Sartain,

    2009     500,000     370,000     296,850     16,876     1,183,726  
 

President and Chief Executive Officer

    2008     500,000             16,876     516,876  

Jim W. Moore

   
2009
   
300,000
   
275,000
   
207,795
   
6,048
   
788,843
 
 

Executive Vice President and Chief

    2008     275,000             5,532     280,532  
 

Operating Officer

                                     

Terry R. DeWitt,

   
2009
   
300,000
   
325,000
   
207,795
   
5,328
   
838,123
 
 

Senior Vice President

    2008     300,000             5,328     305,328  

(1)
These amounts represent the aggregate grant-date fair value of stock option awards, calculated in accordance with the FASB's accounting guidance on share-based payments. Refer to Note 12 to the consolidated financial statements in the Original Report for a discussion of the relevant assumptions used in calculating these amounts.

(2)
The total amounts included under "All Other Compensation" for 2009 consist of (a) amounts contributed to match a portion of such employee's contributions under a 401(k) plan ("401(k) Match"), (b) excess premiums paid on supplemental life insurance policies ("Supplemental Life"), and (c) personal use of a business vehicle ("Auto"). The following table details the amounts paid during 2009 for each of the categories:

Executive
  401(k)
Match($)
  Supplement
Life($)
  Auto($)   Total($)  

James T. Sartain

  $ 4,500   $ 2,376   $ 10,000   $ 16,876  

Jim W. Moore

    4,500     1,548         6,048  

Terry R. DeWitt

    4,500     828         5,328  

10


Table of Contents

Outstanding Equity Awards at Fiscal Year-End

        The following table provides information on the holdings of stock options by the Named Executive Officers as of December 31, 2009. This table includes unexercised and unvested stock option awards. Each equity grant is shown separately for each Named Executive Officer. The vesting schedule for each grant is shown following this table, based on the option award grant date.

 
   
  Number of Shares Underlying
Unexercised Options (#)
   
   
 
  Option
Grant Date
  Option
Exercise
Price ($)
  Option
Expiration
Date
Name
  Exercisable(1)   Unexercisable

James T. Sartain

  12/1/2000     50,000       $ 2.00   12/1/2010

  5/13/2004     37,500       $ 7.25   5/13/2014

  10/12/2005     11,000       $ 11.33   10/12/2015

  8/13/2009         50,000   $ 6.93   8/13/2019

Jim W. Moore

 

8/13/2009

   
   
35,000
 
$

6.93
 

8/13/2019

Terry R. DeWitt

 

5/13/2004

   
15,000
   
 
$

7.25
 

5/13/2014

  10/25/2005     8,000       $ 11.77   10/25/2015

  10/11/2007     4,000     4,000   $ 9.85   10/11/2017

  8/13/2009         35,000   $ 6.93   8/13/2019

(1)
Options become exercisable in four equal annual installments beginning on the first anniversary of the date of grant.

Potential Payments Upon Termination or Change-In-Control

        The Named Executive Officers have received stock options under the Company's stock option and award plans. In the event of a Change in Control (as defined below) under the stock option and award plans:

            (1)   all stock options outstanding thereunder will become fully vested and immediately exercisable;

            (2)   the target payout attainable under all performance shares outstanding thereunder will be deemed to have been fully earned for the entire performance period and, within thirty days of such Change in Control, such performance shares will be paid out in accordance with the terms thereof (provided that, there will not be an accelerated payout with respect to performance shares granted within less than six months prior to the effective date of such Change in Control);

            (3)   all restrictions on restricted stock outstanding thereunder will lapse and such restricted stock will be delivered to the participant in accordance with the terms thereof (provided that, there will not be an accelerated delivery with respect to restricted stock granted less than six months prior to the effective date of such Change in Control); and

            (4)   the Compensation Committee may, in its discretion, make any other modifications to any awards thereunder as determined by the Compensation Committee to be deemed appropriate before the effective date of such Change in Control.

        A "Change in Control" is defined as follows:

    (1)
    an acquisition by any person of beneficial ownership (within the meaning of Rule 13d-3 under the Exchange Act) of common stock or voting securities of FirstCity entitled to vote generally in the election of directors; provided that, such acquisition would result in such person beneficially owning 25% or more of common stock or 25% or more of the combined voting power of the Company's voting securities; and provided further that, immediately prior to such

11


Table of Contents

      acquisition such person was not a direct or indirect beneficial owner of 25% or more of common stock or 25% or more of the combined voting power of FirstCity's voting securities, as the case may be; or

    (2)
    The approval of FirstCity's stockholders of a reorganization, merger, consolidation, complete liquidation or dissolution of the Company, the sale or disposition of all or substantially all of the assets of the Company or similar corporate transaction or, if consummation of such corporate transaction is subject, at the time of such approval by stockholders, to the consent of any government or governmental agency, the obtaining of such consent (either explicitly or implicitly); or

    (3)
    A change in the composition of the Company's Board such that the individuals who, constitute the Board cease for any reason to constitute at least a majority of the Board; provided that, any individual who becomes a member of the Board whose election, or nomination for election by the Company's stockholders, was approved by at least a majority of those individuals who are members of the Board and who were also members of such incumbent Board (or deemed to be such pursuant to this proviso) shall be considered as though such individual were a member of such incumbent Board; and provided further that, any such individual whose initial assumption of office occurs as a result of either an actual or threatened election contest (within the meaning of Rule 14a-11 of Regulation 14A under the Exchange Act) or other actual or threatened solicitation of proxies or consents by or on behalf of a person other than the Board shall not be so considered as a member of such incumbent Board.

        The following table summarizes the potential change in control benefits under the Company's stock option and award plans the Named Executive Officers would have been eligible to receive if such officer was terminated without cause or resigned for good reason in connection with a Change in Control that occurred on December 31, 2009.

Name
   
  Change
in Control
 

James T. Sartain

  Stock option acceleration(1)   $ 244,942  

Jim W. Moore

 

Stock option acceleration(1)

 
$

178,197
 

Terry R. DeWitt

 

Stock option acceleration(1)

 
$

193,602
 

(1)
We valued the stock option vesting acceleration modifications in accordance with FASB's accounting guidance on share-based payments.

12


Table of Contents

Director Compensation Table

        The following table sets forth information regarding the compensation of FirstCity's directors for the fiscal year ended December 31, 2009.

Name(1)
  Fees Earned
or Paid in
Cash(2)
($)
  Option
Awards(3)
($)
  Total
($)
 

Richard E. Bean

    37,000     30,194     67,194  

C. Ivan Wilson

    27,000     30,194     57,194  

Robert E. Garrison, II

    32,000     30,194     62,194  

D. Michael Hunter

    21,000     30,194     51,194  

F. Clayton Miller

    21,000     30,194     51,194  

Dane Fulmer

    18,000     30,194     48,194  

(1)
James T. Sartain is not included in this table as he is an employee of FirstCity and, accordingly, received no compensation for his services as a director. Mr. Sartain's compensation, as an employee of FirstCity, is shown in the Summary Compensation Table above.

(2)
During 2009, FirstCity's non-employee directors received an annual retainer of $14,000 (paid in quarterly installments) plus an attendance fee of $1,000 for each meeting of the Board of Directors attended. Non-employee directors who served on a standing committee of the Board received $1,000 for each committee meeting attended. The Chairman of the Audit Committee received an additional annual retainer of $5,000 (paid in quarterly installments) plus an additional $1,000 for each committee meeting attended.

(3)
FirstCity's non-employee directors were each granted options to purchase 5,000 shares of FirstCity common stock for their service as a director during 2009 under the FirstCity Financial Corporation 2006 Stock Option and Award Plan. These amounts are computed in accordance with the FASB's accounting guidance on share-based payments (refer to Note 12 to the consolidated financial statements in the Original Report for a discussion of the relevant assumptions used in calculating these amounts). The aggregate number of stock option awards outstanding to non-employee directors at December 31, 2009 are as follows: Richard E. Bean—30,000; C. Ivan Wilson—35,000; Dane Fulmer—23,750; Robert E. Garrison, II—25,000; D. Michael Hunter—25,000; F. Clayton Miller—20,000.

Item 12.    Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters.

        The following table sets forth certain information regarding the common stock owned on April 15, 2010 (the "Measurement Date") by (1) each person who is known by the Company to be the beneficial owner of more than 5% of our common stock outstanding as of such date, (2) each of the Company's directors, (3) each of the Named Executive Officers, and (4) all of the Company's directors and

13


Table of Contents


executive officers as a group. Except as otherwise indicated, all shares of the common stock shown in the table are held with sole voting and investment power.

Title of Class
  Name and Address of Beneficial Owner   Amount and
Nature of
Beneficial
Ownership(2)
  Percent
of Class
 
      Directors and Executive Officers(1):              
  Common Stock   James T. Sartain     651,003     6.44 %
  Common Stock   Richard E. Bean     330,333     3.29 %
  Common Stock   Robert E. Garrison, II     134,150     1.34 %
  Common Stock   Dane Fulmer     105,750     1.05 %
  Common Stock   D. Michael Hunter     60,000     *  
  Common Stock   F. Clayton Miller     20,000     *  
  Common Stock   C. Ivan Wilson     70,520     *  
  Common Stock   Terry R. DeWitt     196,810     1.96 %
  Common Stock   Jim W. Moore     32,000     *  
  Common Stock   All directors and executive officers as a group (13 persons)     1,847,159     17.71 %

 

 

 

Certain Other Beneficial Owners:

 

 

 

 

 

 

 
  Common Stock   Heartland Advisors, Inc. and William Nasgovitz     1,448,700 (3)   14.47 %
      789 N. Water St. Suite 500              
      Milwaukee, WI 53202              
  Common Stock   First Manhattan Co.      957,104 (3)   9.56 %
      437 Madison Avenue              
      New York, NY 10022              
  Common Stock   Dimensional Fund Advisors LP     681,926 (3)   6.81 %
      1299 Ocean Avenue              
      Santa Monica, CA 90401              

*
Less than 1%

(1)
The business mailing address of each such person is P. O. Box 8216, Waco, Texas 76714.

(2)
Includes shares that may be acquired within 60 days of the Measurement Date upon the exercise of options granted under the Company's stock option and award plans as follows: James T. Sartain—98,500; Richard E. Bean—30,000; Robert E. Garrison, II—25,000; Dane Fulmer—23,750; D. Michael Hunter—25,000; F. Clayton Miller—20,000; C. Ivan Wilson—35,000; Terry R. DeWitt—27,000; and all directors and executive officers as a group (13 persons)—420,250.

(3)
Based on information contained in statements filed with the SEC by the respective reporting persons. The amounts as to which the beneficial owner has sole voting power, shared voting power, sole investment power, or shared investment power are as follows:

 
   
   
  Voting   Investment  
Name
  Schedule   Date   Sole   Shared   Sole   Shared  

Heartland Advisors, Inc. and William Nasgovitz

    13G/A     12/31/2009         1,232,200         1,448,700  

First Manhattan Co. 

    13G/A     12/31/2009     34,400     846,529     34,400     922,704  

Dimensional Fund Advisors LP

    13G/A     12/31/2009     677,352         681,926      

14


Table of Contents

Equity Compensation Plan Information

        The following table provides information as of December 31, 2009 with respect to the shares of our common stock that may be issued under the Company's equity compensation plans:

Plan Category
  Number of Shares
to Be Issued
Upon Exercise of
Outstanding Options
  Weighted Average
Exercise Price of
Outstanding Options
  Number of Shares
Remaining Available
for Future Issuance
 

Equity compensation plans approved by stockholders

    921,400   $ 7.10     103,500 (1)

Equity compensation plans not approved by stockholders

             
               

Total

    921,400   $ 7.10     103,500  
               

(1)
Issuable shares of our common stock available under the Company's 2006 Stock Option and Award Plan.

        At the 2009 annual meeting of FirstCity stockholders held on November 13, 2009, the stockholders approved the 2010 Stock Option and Award Plan. This plan will enable the Company to make stock awards up to a total of 300,000 common shares (net of shares cancelled and forfeited) in various forms and combinations including stock options, performance shares and restricted stock. The 2010 Stock Option and Award Plan will become effective on April 1, 2010 (i.e. the shares were not available for issuance at December 31, 2009).

Item 13.    Certain Relationships and Related Transactions, and Director Independence.

Director Independence

        As required under the NASDAQ Stock Market listing standards, a majority of the members of a listed company's board of directors must qualify as "independent," as affirmatively determined by the board of directors. The Board has determined that Messrs. Bean, Fulmer, Garrison, Hunter, Miller and Wilson are independent directors under the NASDAQ Stock Market Rules. Mr. Sartain, the Company's President and Chief Executive Officer, is not an independent director by virtue of his employment with the Company.

Transactions and Relationships Involving Our Directors and Executive Officers

        The Company owns equity interests in various asset portfolios through limited partnerships and limited liability companies ("Acquisition Partnerships") in which a corporate affiliate of the Company is the sole general partner or managing member, and the Company and other non-affiliated investors are limited partners or members. Certain directors and executive officers of the Company may also serve as directors and/or executive officers of the general partner or managing member, but receive no additional compensation from or on behalf of such general partner or managing member for serving in such capacity. The Company provides asset servicing services to certain of the Acquisition Partnerships pursuant to servicing agreements between the Company and the Acquisition Partnerships. Service fees derived from such affiliates totaled $8.2 million for 2009.

15


Table of Contents


Item 14.    Principal Accounting Fees and Services.

Audit Fees

        The aggregate fees billed for professional services by KPMG LLP ("KPMG") in 2009 and 2008 for these various services were:

 
  2009   2008  

Audit fees

  $ 1,120,535   $ 1,237,332  

Audit-related fees

    7,500      

Tax fees

         

All other fees

         
           

Total

  $ 1,128,035   $ 1,237,332  
           

        Audit Fees.    Audit fees include fees and related expenses ($128,000 and $121,332 for 2009 and 2008, respectively) for professional services rendered by our independent registered public accounting firm for the annual audit of our consolidated financial statements (and the financial statements of certain subsidiaries) and of our internal control over financial reporting, the quarterly review of our financial statements, and services that are normally provided in connection with statutory and regulatory filings.

        Audit-Related Fees.    Audit-related fees in 2009 consist of professional services rendered by KPMG related to the performance of other attestation services that are not otherwise reported under Audit Fees.

        Tax Fees.    We did not engage KPMG for tax services for fiscal years 2009 and 2008.

        All Other Fees.    We did not engage KPMG for other professional services for fiscal years 2009 and 2008.

Audit Committee Pre-Approval Policies and Procedures

        The Audit Committee has adopted policies and procedures for pre-approving all audit and non-audit services performed by the Company's independent auditor. Except as noted below, no audit services or non-audit services shall be provided to the Company by the independent auditor unless first pre-approved by the Audit Committee and unless permitted by applicable securities laws and the rules and regulations of the SEC. If the Audit Committee approves an audit service within the scope of the engagement of the independent auditor, such audit service shall be deemed to have been pre-approved.

        Pre-approval shall not be required for non-audit services provided by the independent auditor, if (i) the aggregate amount of all such non-audit services provided to the Company constitutes not more than the five percent (5%) of the total amount of revenues paid by the Company to the independent auditor during the fiscal year in which such non-audit services are provided, (ii) such non-audit services were not recognized by the Company at the time of the independent auditor's engagement to be non-audit services, and (iii) such non-audit services are promptly brought to the attention of the Audit Committee and approved by the Audit Committee prior to the completion of the audit for the year in which the non-audit services were commenced.

        The Audit Committee may delegate to one or more members of the Audit Committee the authority to grant pre-approval of certain non-audit services. The decision of any member to whom such authority is delegated to pre-approve non-audit services shall be presented to the full Audit Committee for its approval at its next scheduled meeting.

16


Table of Contents


PART IV

Item 15.    Exhibits and Financial Statement Schedules.

        1.     Financial Statements

        The information required in this item was included in FirstCity's Annual Report on Form 10-K for the year ended December 31, 2009, filed with the SEC on March 31, 2010.

        2.     Financial Statement Schedules

        The information required in this item was included in FirstCity's Annual Report on Form 10-K for the year ended December 31, 2009, filed with the SEC on March 31, 2010.

        3.     Exhibits

Exhibit
Number
   
  Description of Exhibit
  2.1     Joint Plan of Reorganization by First City Bancorporation of Texas, Inc., Official Committee of Equity Security Holders and J-Hawk Corporation, with the Participation of Cargill Financial Services Corporation, Under Chapter 11 of the United States Bankruptcy Code, Case No. 392-39474-HCA-11 (incorporated herein by reference to Exhibit 2.1 of the Company's Current Report on Form 8-K dated July 3, 1995 filed with the SEC on July 18, 1995)

 

2.2

 


 

Agreement and Plan of Merger, dated as of July 3, 1995, by and between First City Bancorporation of Texas, Inc. and J-Hawk Corporation (incorporated herein by reference to Exhibit 2.2 of the Company's Current Report on Form 8-K dated July 3, 1995 filed with the SEC on July 18, 1995)

 

3.1

 


 

Amended and Restated Certificate of Incorporation of the Company (incorporated herein by reference to Exhibit 3.1 of the Company's Current Report on Form 8-K dated July 3, 1995 filed with the SEC on July 18, 1995)

 

3.2

 


 

Amended and Restated Bylaws of the Company (incorporated herein by reference to Exhibit 3.1 of the Company's Current Report on Form 8-K dated December 30, 2005 filed with the SEC on December 30, 2005)

 

10.4

 


 

Securities Purchase Agreement dated as of September 21, 2004 by and among FirstCity Financial Corporation and certain affiliates of FirstCity and IFA Drive GP Holdings LLC, IFA Drive LP Holdings LLC, Drive Management LP and certain affiliates of those persons. (incorporated herein by reference to Exhibit 10.1 of the Company's Form 8-K dated September 27, 2004)

 

10.5

 


 

Revolving Credit Agreement, dated November 12, 2004, among FirstCity Financial Corporation as Borrower and the Lenders named therein, as Lenders, and Bank of Scotland, as Agent (incorporated herein by reference to Exhibit 10.12 of the Company's Form 10-Q dated November 15, 2004)

 

10.6

 


 

1995 Stock Option and Award Plan (incorporated herein by reference to Exhibit A of the Company's Schedule 14A, Definitive Proxy Statement, dated March 27, 1996)

 

10.7

 


 

1996 Stock Option and Award Plan (incorporated herein by reference to Exhibit C of the Company's Schedule 14A, Definitive Proxy Statement, dated March 27, 1996)

 

10.8

 


 

2004 Stock Option and Award Plan (incorporated herein by reference to Appendix A of the Company's Schedule 14A, Definitive Proxy Statement, dated October 21, 2003)

17


Table of Contents

Exhibit
Number
   
  Description of Exhibit
  10.9     Revolving Credit Agreement, dated August 26, 2005, among FH Partners, L.P., as Borrower, and the Lenders named therein, as Lenders, and Bank of Scotland, as Agent (incorporated herein by reference to Exhibit 10.1 of the Company's Form 8-K dated September 1, 2005)

 

10.10

 


 

Guaranty Agreement, dated August 26, 2005, executed by FirstCity Financial Corporation, FirstCity Commercial Corporation, FirstCity Europe Corporation, FirstCity Holdings Corporation, FirstCity International Corporation, FirstCity Mexico, Inc., and FirstCity Servicing Corporation for the benefit of Bank of Scotland, as agent, and lenders (incorporated herein by reference to Exhibit 10.2 of the Company's Form 8-K dated September 1, 2005)

 

10.12

 


 

Asset Purchase Agreement, dated June 30, 2006, by and among FirstCity Financial Corporation and its subsidiaries, FirstCity Business Lending Corporation and American Business Lending, Inc.; and AMRESCO SBA Holdings, Inc. and NCS I, LLC (incorporated herein by reference to Exhibit 10.1 of the Company's Form 8-K dated July 7, 2006)

 

10.13

 


 

2006 Stock Option and Award Plan (incorporated herein by reference to Appendix A of the Company's Schedule 14A, Definitive Proxy Statement, dated June 26, 2006)

 

10.14

 


 

Interest Purchase and Sale Agreement, dated August 8, 2006, by and among Bidmex Holding, LLC, and Strategic Mexican Investment Partners, L.P. and Cargill Financial Services International, Inc. and certain other parties (incorporated herein by reference to Exhibit 10.14 of the Company's Form 10-Q dated November 9, 2006)

 

10.15

 


 

Put Option Agreement dated August 8, 2006, by and among Bidmex Holding, LLC, Recuperacion de Carteras Mexicanas, S. de R.L. de C.V., Bidmex 6, LLC, Strategic Mexican Investment Partners 2, L.P. and Cargill Financial Services International, Inc. (incorporated herein by reference to Exhibit 10.15 of the Company's Form 10-Q dated November 9, 2006)

 

10.16

 


 

Guarantee dated August 8, 2006, executed by FirstCity Financial Corporation for the benefit of Bidmex Holding, LLC, Residencial Oeste 2 S. de R.L. de C.V., National Union Fire Insurance Company of Pittsburg, P.A., American General Life Insurance Company, and American General Life and Accident Insurance Company (incorporated herein by reference to Exhibit 10.15 of the Company's Form 10-Q dated November 9, 2006)

 

10.17

 


 

Amendment No. 4 to Revolving Credit Agreement, dated as of October 31, 2006, among FirstCity Financial Corporation as Borrower and the Lenders named therein, as Lenders, and Bank of Scotland, as Agent (incorporated herein by reference to Exhibit 10.1 of the Company's Form 8-K dated November 7, 2006)

 

10.18

 


 

Management Employment Contract dated November 30, 2006, between FirstCity Business Lending Corporation, American Business Lending, Inc., and Charles P. Bell, Jr. (incorporated herein by reference to Exhibit 10.2 of the Company's Form 8-K dated December 7, 2006)

 

10.20

 


 

Amendment No. 5 to Revolving Credit Agreement, dated as of December 14, 2006, among FirstCity Financial Corporation as Borrower and the Lenders named therein, as Lenders, and Bank of Scotland, as Agent (incorporated herein by reference to Exhibit 10.1 of the Company's Form 8-K dated December 20, 2006)

18


Table of Contents

Exhibit
Number
   
  Description of Exhibit
  10.21     Loan Agreement, dated as of December 15, 2006 by and between American Business Lending, Inc., as Borrower, and Wells Fargo Foothill, LLC, as lender (incorporated herein by reference to Exhibit 10.1 of the Company's Form 8-K dated December 28, 2006)

 

10.22

 


 

Amendment No. 1 to Loan Agreement, dated as of February 27, 2007, by and between American Business Lending, Inc., as Borrower, and Wells Fargo Foothill, LLC, as lender (incorporated herein by reference to Exhibit 10.22 of the Company's Form 10-K dated July 24, 2007)

 

10.23

 


 

Amendment No. 9 to Revolving Credit Agreement, dated as of June 29, 2007, among FirstCity Financial Corporation as Borrower and the Lenders named therein, as Lenders, and Bank of Scotland, as Agent (incorporated herein by reference to Exhibit 10.23 of the Company's Form 10-Q dated August 10, 2007)

 

10.24

 


 

Amendment No. 1 to Revolving Credit Agreement, dated June 29, 2007, among FH Partners, L.P., as Borrower, and the Lenders named therein, as Lenders, and Bank of Scotland, as Agent (incorporated herein by reference to Exhibit 10.24 of the Company's Form 10-Q dated August 10, 2007)

 

10.25

 


 

Amendment No. 2 to Loan Agreement, dated as of July 30, 2007, by and between American Business Lending, Inc., as Borrower, and Wells Fargo Foothill, LLC, as lender (incorporated herein by reference to Exhibit 10.1 of the Company's Form 8-K dated August 3, 2007)

 

10.26

 


 

Amendment No. 10 to Revolving Credit Agreement, dated as of August 22, 2007, among FirstCity Financial Corporation as Borrower and the Lenders named therein, as Lenders, and Bank of Scotland, as Agent (incorporated herein by reference to Exhibit 10.1 of the Company's Form 8-K dated August 28, 2007)

 

10.27

 


 

Amendment No. 3 and Consent to Revolving Credit Agreement, dated August 22, 2007, among FH Partners, L.L.C., as Borrower, and the Lenders named therein, as Lenders, and Bank of Scotland, as Agent (incorporated herein by reference to Exhibit 10.2 of the Company's Form 8-K dated August 28, 2007)

 

10.28

 


 

Subordinated Delayed Draw Credit Agreement, dated as of September 5, 2007, among FirstCity Financial Corporation, as Borrower, and the Lenders named therein, as Lenders, and BoS(USA), Inc., as agent (incorporated herein by reference to Exhibit 10.1 of the Company's Form 8-K dated September 10, 2007)

 

10.34

 


 

Amendment and Consent No. 25 to Revolving Credit Agreement, dated as of July 14, 2008, among FirstCity Financial Corporation as Borrower and the Lenders named therein, as Lenders, and Bank of Scotland, as Agent (incorporated herein by reference to Exhibit 10.1 of the Company's Form 8-K dated July 18, 2008)

 

10.35

 


 

Amendment and Consent No. 12 to Subordinated Delayed Draw Credit Agreement, dated as of July 14, 2008, among FirstCity Financial Corporation as Borrower and the Lenders named therein, as Lenders, and BoS(USA), Inc., as Agent (incorporated herein by reference to Exhibit 10.2 of the Company's Form 8-K dated July 18, 2008)

 

10.36

 


 

Amendment and Consent No. 6 to Revolving Credit Agreement, dated as of July 14, 2008, among FH Partners, LLC, as Borrower, and the Lenders named therein, as Lenders, and Bank of Scotland, as Agent (incorporated herein by reference to Exhibit 10.3 of the Company's Form 8-K dated July 18, 2008)

19


Table of Contents

Exhibit
Number
   
  Description of Exhibit
  10.37     Conditional Waiver Agreement Regarding Event of Default dated effective September 30, 2008, between American Business Lending, Inc., an affiliate of FirstCity, as borrower, and Wells Fargo Foothill, LLC, as lender (incorporated herein by reference to Exhibit 10.40 of the Company's Form 10-Q dated November 10, 2008)

 

10.38

 


 

Conditional Waiver Under Loan Agreement dated November 10, 2008, between American Business Lending, Inc., an affiliate of FirstCity, as borrower, and Wells Fargo Foothill, LLC, as lender (incorporated herein by reference to Exhibit 10.41 of the Company's Form 10-Q dated November 10, 2008)

 

10.39

 


 

Amendment and Consent No. 27 to Revolving Credit Agreement, dated as of December 12, 2008, among FirstCity Financial Corporation as Borrower and the Lenders named therein, as Lenders, and Bank of Scotland, as Agent (incorporated herein by reference to Exhibit 10.1 of the Company's Form 8-K dated December 15, 2008)

 

10.40

 


 

Amendment and Consent No. 14 to Subordinated Delayed Draw Credit Agreement, dated as of December 12, 2008, among FirstCity Financial Corporation as Borrower and the Lenders named therein, as Lenders, and BoS(USA), Inc., as Agent (incorporated herein by reference to Exhibit 10.2 of the Company's Form 8-K dated December 15, 2008)

 

10.41

 


 

Amendment and Consent No. 7 to Revolving Credit Agreement, dated as of December 12, 2008, among FH Partners, LLC, as Borrower, and the Lenders named therein, as Lenders, and Bank of Scotland, as Agent (incorporated herein by reference to Exhibit 10.3 of the Company's Form 8-K dated December 15, 2008)

 

10.42

 


 

Mediator's Proposal, dated November 20, 2008, among Michael S. Wilk, as mediator appointed by the Court of Appeals for the First District for the State of Texas, and agreed to by the FCLT Loans Asset Corporation, FirstCity Financial Corporation, Timothy J. Blair, Class Representative of former employees of FirstCity Bancorporation of Texas, Inc., and JP Morgan Chase Bank, N.A., successor trustee (incorporated herein by reference to Exhibit 10.4 of the Company's Form 8-K dated December 15, 2008)

 

10.43

 


 

Conditional Waiver Agreement Regarding Event of Default, dated and effective as of December 31, 2008, between American Business Lending, Inc., an affiliate of FirstCity, as borrower, and Wells Fargo Foothill,  Inc., as lender (incorporated herein by reference to Exhibit 10.1 of the Company's Form 8-K dated February 4, 2009)

 

10.44

 


 

Amendment No. 3 to Loan Agreement, dated February 18, 2009, by and between American Business Lending, Inc., as Borrower, and Wells Fargo Foothill, LLC, as Lender (incorporated herein by reference to Exhibit 10.44 of the Company's Form 10-Q dated May 12, 2009)

 

10.45

 


 

Amended and Restated General Continuing Limited Guaranty, dated February 18, 2009, by FirstCity Financial Corporation, as Guarantor, and Wells Fargo Foothill, LLC, as Lender (incorporated herein by reference to Exhibit 10.45 of the Company's Form 10-Q dated May 12, 2009)

 

10.46

 


 

Separation Agreement, Release and Amendment to Award Agreements dated June 4, 2009, by and between Richard J. Vander Woude, FirstCity Servicing Corporation and FirstCity Financial Corporation (incorporated herein by reference to Exhibit 10.1 of the Company's Form 8-K dated June 5, 2009)

 

10.47

 


 

Retainer Agreement, dated June 4, 2009, by and between Richard J. Vander Woude, FirstCity Servicing Corporation and FirstCity Financial Corporation (incorporated herein by reference to Exhibit 10.2 of the Company's Form 8-K dated June 5, 2009)

20


Table of Contents

Exhibit
Number
   
  Description of Exhibit
  10.48     Recommendation of Compensation Committee for a 2009 bonus plan for certain executive officers and two other employees (incorporated herein by reference to the Company's Form 8-K dated August 19, 2009)

 

10.49

 


 

Agreement and Stipulation of Settlement, dated September 25, 2009, between FCLT Loans Asset Corporation, FirstCity Financial Corporation, and Timothy J. Blair, Class Representative of former employee beneficiaries (incorporated herein by reference to Exhibit 99.1 of the Company's Form 8-K dated September 30, 2009)

 

10.50

 


 

2010 Stock Option and Award Plan (incorporated herein by reference to Appendix A of the Company's Schedule 14A, Definitive Proxy Statement, dated October 1, 2009, as amended by supplemental Schedule 14A, Definitive Additional Materials, dated November 5, 2009)

 

10.51

 


 

Amendment No. 4 to Loan Agreement, dated November 2, 2009, by and between American Business Lending, Inc., as Borrower, and Wells Fargo Foothill, LLC, as Lender (incorporated herein by reference to Exhibit 10.1 of the Company's Form 8-K dated November 10, 2009)

 

10.52

 


 

Press release dated December 22, 2009, pursuant to Item 7.01, announcing the Company's receipt of final settlement proceeds pursuant to the Agreement and Stipulation of Settlement described in its release dated September 30, 2009 and in Form 8-K filed on September 30, 2009 (incorporated herein by reference to Exhibit 99.1 of the Company's Form 8-K dated December 22, 2009)

 

10.53

 


 

Approval by the Company's Board of Directors of the Compensation Committee's recommendation for a 2010 bonus plan for certain executive officers of the Company (incorporated herein by reference to the Company's Form 8-K dated February 16, 2010)

 

10.54

 


 

Amendment and Consent No. 33 to Revolving Credit Agreement, dated as of March 26, 2010, among FirstCity Financial Corporation as Borrower and the Lenders named therein, as Lenders, and Bank of Scotland plc, as Agent (incorporated herein by reference to the Company's Form 8-K dated March 29, 2010)

 

10.55

 


 

Amendment and Consent No. 20 to Subordinated Delayed Draw Credit Agreement, dated as of March 26, 2010, among FirstCity Financial Corporation as Borrower and the Lenders named therein, as Lenders, and BoS(USA), Inc., as Agent (incorporated herein by reference to the Company's Form 8-K dated March 29, 2010)

 

10.56

 


 

Amendment and Consent No. 9 to Revolving Credit Agreement, dated as of March 26, 2010, among FH Partners LLC, as Borrower, and the Lenders named therein, as Lenders, and Bank of Scotland plc, as Agent (incorporated herein by reference to the Company's Form 8-K dated March 29, 2010)

 

21.1

*


 

Subsidiaries of the Registrant

 

23.1

*


 

Consent of KPMG LLP

 

31.1

**


 

Certification of the Chief Executive Officer pursuant to Section 302 of the Sarbanes-Oxley Act of 2002

 

31.2

**


 

Certification of the Chief Financial Officer pursuant to Section 302 of the Sarbanes-Oxley Act of 2002

*
Previously included in FirstCity's Annual Report on Form 10-K for the year ended December 31, 2009, as filed March 31, 2010.

**
Filed herewith.

21


Table of Contents


SIGNATURES

        Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.

    FIRSTCITY FINANCIAL CORPORATION

April 30, 2010

 

By:

 

/s/ JAMES T. SARTAIN

James T. Sartain
President and Chief Executive Officer

        Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed below by the following persons on behalf of the registrant and in the capacities and on the dates indicated.

Signature
 
Title
 
Date

 

 

 

 

 
/s/ RICHARD E. BEAN

Richard E. Bean
  Chairman of the Board and Director   April 30, 2010

/s/ JAMES T. SARTAIN

James T. Sartain

 

President, Chief Executive Officer and Director (Principal Executive Officer)

 

April 30, 2010

/s/ J. BRYAN BAKER

J. Bryan Baker

 

Senior Vice President and Chief Financial Officer (Principal Financial Officer)

 

April 30, 2010

/s/ C. IVAN WILSON

C. Ivan Wilson

 

Vice Chairman of the Board and Director

 

April 30, 2010

/s/ DANE FULMER

Dane Fulmer

 

Director

 

April 30, 2010

/s/ ROBERT E. GARRISON, II

Robert E. Garrison, II

 

Director

 

April 30, 2010

/s/ D. MICHAEL HUNTER

D. Michael Hunter

 

Director

 

April 30, 2010

/s/ F. CLAY MILLER

F. Clay Miller

 

Director

 

April 30, 2010

22