As filed with the Securities and Exchange Commission on December 26, 2002
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Form S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
LIBERTÉ INVESTORS INC.
DELAWARE
(State or other jurisdiction of
incorporation or organization)
75-1328153
(I.R.S. Employer Identification No.)
200 Crescent Court
Suite 1365
Dallas, Texas
(Address of Principal Executive Offices)
75201
(Zip Code)
LIBERTÉ INVESTORS INC. 2002 LONG TERM INCENTIVE PLAN
OPTION GRANTED TO DONALD J. EDWARDS PURSUANT TO HIS EMPLOYMENT AGREEMENT
(Full title of the plans)
ELLEN V. BILLINGS
200 Crescent Court
Suite 1365
Dallas, Texas 75201
(Name and address of agent for service)
Tel: (214) 871-5935
Fax: (214) 871-5199
(Telephone number, including area code, of agent for service)
With a copy to:
TAYLOR H. WILSON
CALCULATION OF REGISTRATION FEE
Haynes and Boone, LLP
901 Main Street
Suite 3100
Dallas, Texas 75202-3789
Tel: (214) 651-5000
Fax: (214) 651-5940
Amount
Proposed Maximum
Proposed Maximum
Amount of
Title of Securities to be Registered
to be Registered
Offering Price Per Share(4)
Aggregate Offering Price(4)
Registration Fee
6,000,000
(1)(2)(3)
$
3.62
$
21,722,650
$
1,999
333,333
(2)(3)
$
3.00
$
999,999
$
92
6,333,333
—
$
22,722,649
$
2,091
(4)
(1)
The 6,000,000 shares (the “Plan Shares”) of Liberté Investors Inc. (the “Company” or “Liberté”) that may be delivered pursuant to awards under
the Liberté Investors Inc. 2002 Long Term Incentive Plan (the “Plan”) and registered hereby represent shares of common stock reserved for issuance
under the Plan pursuant to stockholder approval on November 8, 2002 of the Plan. Included in the Plan Shares are 2,573,678 shares of common stock
that may be issued pursuant to an option granted to Donald J. Edwards pursuant to his Non-Qualified Stock Option Agreement with the Company (the
“Edwards Option”) that are also being registered for resale under this registration statement pursuant to Mr. Edwards’ Employment Agreement with
the Company dated July 1, 2002 and Registration Rights Agreement with the Company with the Company dated July 1, 2002.
(2)
The Company is registering for
resale (a) 166,667 shares of common stock previously issued to Donald J. Edwards pursuant to the option granted to Mr.
Edwards pursuant to his Employment Agreement, dated as of
July 1, 2002, and which had an exercise price of $3.00 per share (the “Edwards Grant”),
(b) 166,666 additional shares of common stock that may be issued
to Donald J. Edwards pursuant to the Edwards Grant and (c) 2,573,678 shares of common stock that
may be issued to Donald J. Edwards pursuant to the Edwards Option.
(3)
Pursuant to Rule 416 promulgated under the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement also shall
cover such indeterminable number of additional shares of common stock as may become issuable pursuant to terms of the Plan, designed to prevent
dilution resulting from stock splits, stock dividends, mergers or combinations or similar events.
(4)
The offering price per share for the Plan Shares has been calculated in accordance with paragraphs (c) and (h)(1) of Rule 457 promulgated
under the Securities Act based on the average of the high and low sale prices for the common stock reported on the New York Stock Exchange
(“NYSE”) on December 20, 2002 (which is within five business days prior to the date of filing this Registration Statement), which was $4.13 per
share. The aggregate offering price and the amount of the registration fee have been calculated in accordance with paragraphs (c) and (h)(1) of
Rule 457 and include 2,823,678 shares of common stock issuable upon exercise of options granted under the Plan at an average exercise price of
$3.00. The offering price per share, the aggregate offering price and the registration fee with respect to the shares of common stock issuable
under the Edwards Grant have been calculated in accordance with paragraph (h) (1) of Rule 457 promulgated under the Securities Act, based on an
exercise price of $3.00 per share for the 333,333 shares being registered for issuance pursuant to the Edwards Grant. In accordance with
paragraph (h)(3) of Rule 457 no additional filing fee shall be paid with respect to the resale of 2,907,011 shares issuable to Donald J. Edwards
and registered for resale herein.
Explanatory Note
This registration statement includes two parts.
The documents constituting the
prospectus under Part I of this registration statement for the Liberte
Investors Inc. 2002 Long Term Incentive Plan (the “Plan Prospectus”) will be
sent or given to participants in the Long Term Incentive Plan as specified by
Rule 428(b) under the Securities Act. The Plan Prospectus has been omitted
from this registration statement as permitted by Part I of Form S-8. The
registration statement also includes a second prospectus (the “Reoffer
Prospectus”) to be used in connection with reoffers and resales of Liberte’s
common stock issued or issuable to Donald J. Edwards as compensation for his
services. The Reoffer Prospectus is filed as part of this registration
statement as required by Form S-8.
PART I — INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
Item 1 — Plan Information
The document(s) containing the information specified in Part I of Form S-8 will
be sent or given to participants in the Liberté Investors Inc. 2002 Long Term
Incentive Plan as specified by Rule 428(b)(1) of the Securities Act. These
documents and the documents incorporated herein by reference pursuant to Item 3
of Part II of this registration statement, taken together, constitute the Plan
Prospectus, meeting the requirements of Section 10(a) of the Securities Act.
The Reoffer Prospectus to be used in connection with sales of common stock
issued or issuable to Donald J. Edwards as compensation for his services will
be used to meet the requirements of Section 10(a) of the Securities Act with
respect to those securities.
Item 2 — Registrant Information and Employee Plan Annual Information
Upon written or oral request by a participant in the Plan listed in Item 1,
Liberté will provide any of the documents incorporated by reference in Part II,
Item 3 of this registration statement (which documents are incorporated by
reference into the Plan Prospectus), any documents required to be delivered to
participants pursuant to Rule 428(b) and other additional information about the
Plan. All of such documents and information will be available without charge.
Any and all requests for such documents should be directed to Liberté’s
Secretary at 200 Crescent Court, Suite 1365, Dallas, Texas 75201 or by
telephone at (214) 871-5935.
PROSPECTUS
Liberté Investors Inc.
2,907,011 Shares of Common Stock
We use the terms “we,” “us,” “our” and “Liberté” to refer to Liberté
Investors Inc., a Delaware corporation, and its subsidiary unless the context
indicates otherwise.
This prospectus relates to 2,907,011 shares of common stock of Liberté
Investors Inc. to be offered and sold from time to time by Donald J. Edwards,
the President, Chief Executive Officer and a director of Liberté who we will
refer to in the prospectus as the selling stockholder.
We will not receive any proceeds from sales of the shares of common stock
by the selling stockholder. Except for underwriting discounts and selling
commissions that may be paid by the selling stockholder, we have agreed to pay
all expenses incurred in connection with the registration of the shares of
common stock covered by this prospectus.
The selling stockholder has advised us that he may sell the shares of
common stock from time to time at market prices prevailing at the time of sale,
prices related to prevailing market prices or privately negotiated prices.
Additional information relating to the distribution of the shares of common
stock by the selling stockholder can be found in this prospectus under the
heading “Plan of Distribution.”
Our common stock is traded on the New York Stock Exchange (also sometimes
referred to as NYSE) under the symbol “LBI.” On
December 24, 2002, the last
reported sale price of the common stock on the NYSE was $4.16 per share. The
address for our principal executive offices is 200 Crescent Court, Suite 1365,
Dallas, Texas 75201 and the telephone number of our principal executive offices
is (214) 871-5935.
You should review carefully the “Risk Factors” beginning on page 3 for
information that should be considered by all prospective investors.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or passed upon the
accuracy or adequacy of this prospectus. Any representation to the contrary is
a criminal offense.
The date of this prospectus is
December 26, 2002.
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No person has been authorized to give any information or to make any
representation in connection with the distribution of common stock to which
this prospectus relates other than those contained herein; and if given or
made, such information or representation must not be relied upon as having been
authorized by Liberté. This prospectus does not constitute an offer or
solicitation by anyone in any state in which such offer or solicitation is not
authorized or in which the person making such offer or solicitation is not
qualified to do so or to anyone to whom it is unlawful to make such offer or
solicitation.
TABLE OF CONTENTS
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Table of Contents
(par value $0.01 per share)
Table of Contents
Page
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Table of Contents
Special Note Regarding Forward-Looking Statements
Certain information contained, referred to or incorporated by reference in
this prospectus is forward-looking in nature. All statements included, referred
to or incorporated by reference in this prospectus, other than statements of
historical fact, are forward-looking statements. Examples of forward-looking
statements include statements regarding our future financial results, operating
results, business strategies, projected costs, products, competitive positions
and plans and objectives of management for future operations. In some cases,
forward-looking statements can be identified by terminology such as “may,”
“will,” “should,” “would,” “expects,” “plans,” “anticipates,” “believes,”
“estimates,” “predicts,” “potential,” “continue,” or the negative of these
terms or other comparable terminology. Any expectations based on these
forward-looking statements are subject to risks and uncertainties and other
important factors, including without limitation those under “Risk Factors” in
this prospectus. These and many other factors could affect our future financial
and operating results and could cause actual results to differ materially from
current expectations.
Although we believe that the expectations reflected in the forward-looking
statements are reasonable, we cannot guarantee future results, levels of
activity, performance or achievements. Moreover, neither we nor the selling
stockholder assumes responsibility for the accuracy and completeness of these
statements. We are under no duty to update any of the forward-looking
statements after the date of this prospectus to conform these statements to
actual results.
Part I
RISK FACTORS
Before you invest in our common stock, you should be aware that there are various risks associated with your investment in our shares of common stock. We urge you to consider carefully the following factors in evaluating an investment before you purchase shares of our common stock. You should consider carefully the following risk factors relating to our business and our common stock, together with the other information and financial data included or incorporated in this prospectus.
Our Business Risks
We have no recent operating history.
Since August of 1996 after our formation to effect the reorganization of our predecessor company, Liberté Investors, a Massachusetts business trust, we have been actively pursuing opportunities to acquire one or more operating companies. Because we have not yet acquired an operating company, we have no recent operating history nor any recent earnings from operations. We will, in all likelihood, sustain operating expenses without corresponding revenues until we acquire an operating company. This may result in a net operating loss that will increase continuously until we acquire a profitable operating company. We cannot assure you that we can identify a suitable business opportunity and consummate a business combination.
The nature of our operations is highly speculative.
The success of our plan of operation will depend largely on the operations, financial condition and management of any identified business opportunity that we locate through our pursuit as discussed in the preceding paragraph. While management intends to seek business combinations with entities having established operating histories, we cannot assure you that we will be successful in locating candidates meeting that criteria. In the event that we complete a business combination, the success of our operations may be dependent upon management of the successor firm and numerous factors beyond our control.
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Our stockholders will not have an opportunity to evaluate the specific merits or risks of any acquisition we make.
Our business purpose is sufficiently broad to authorize us to undertake any lawful business. Accordingly, we may expand our business through one or more acquisitions of companies or interests in companies without seeking stockholder approval. You will not have the ability to evaluate the specific merits or risks of any acquisitions we make. We cannot assure you that our management’s determinations with respect to acquisitions will permit us to achieve our business objectives. We cannot assure you that we will be able to make a future acquisition or that any future acquisition will be successful.
We lack experience in all businesses except making and purchasing real estate mortgage loans, which could limit our pool of potential acquisition candidates.
We have the authority to engage in any lawful business; however, we have no experience in the operation of any business other than financial services that primarily involve making and purchasing real estate mortgage loans.
In pursuing potential acquisitions we expect to encounter intense competition from other companies.
We expect to encounter intense competition as we pursue potential acquisition targets. Many of our competitors possess greater financial, technical, human and other resources than we possess. We may not be able to compete with many of these competitors which may lead us to select less attractive business prospects.
We do not have an existing agreement for an acquisition or other transaction.
We have no current arrangement, agreement or understanding with respect to engaging in an acquisition of a private or public company, assets from a company or interest in a company. We cannot assure you that we will be able to negotiate an acquisition on favorable terms in the future.
Provisions in our certificate of incorporation may prevent a takeover that you may deem favorable.
Our certificate of incorporation and bylaws contain the following provisions that could prevent or inhibit a third party from acquiring us:
| • | the transfer restrictions on the shares of our common stock to preserve federal income tax net operating loss carryforwards and other tax attributes; | ||
| • | the requirement that only stockholders owning at least one-third of the outstanding shares of our common stock may call a special stockholders’ meeting; and | ||
| • | the requirement that stockholders owning at least two-thirds of the outstanding shares of our common stock must approve any amendment to our certificate of incorporation provisions concerning the transfer restrictions and the special stockholders’ meetings. In addition, under our certificate of incorporation, we may issue shares of preferred stock on terms that are unfavorable to the holders of our common stock. Any outstanding shares of preferred stock |
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| also could prevent or inhibit a third party from acquiring us. The existence of these provisions could depress the price of our common stock or could delay or prevent a takeover attempt. |
Our principal stockholder and Chairman of the Board, Gerald J. Ford, may exercise control in a way that is unfavorable to our other stockholders.
As of December 20, 2002, Gerald J. Ford beneficially owned 45.47% of the outstanding shares of our common stock. Mr. Ford also is one of our seven directors and is our Chairman. As only a plurality of the votes cast at an annual stockholders’ meeting will be required to elect our directors, Mr. Ford’s significant ownership of the outstanding shares of our common stock also could enable him to elect all of the directors in the future. In addition, as the stockholders may remove directors without cause and stockholders owning at least one-third of the shares of our common stock may call a special stockholders’ meeting, Mr. Ford could also call such a meeting for the purpose of removing directors. These factors could enable Mr. Ford to influence us in ways favorable to Mr. Ford, but detrimental to the other stockholders. Mr. Ford’s beneficial ownership of approximately 45.47% of the outstanding shares of our common stock also will permit Mr. Ford to block any proposed amendments to our certificate of incorporation concerning the transfer restrictions on the shares of our common stock and the special stockholders’ meetings because such changes will require the affirmative vote of stockholders owning at least two-thirds of the outstanding shares. Finally, as Mr. Ford has restrictive contractual relationships with certain entities, we do not intend to pursue acquisitions in certain retail banks or thrifts that have a retail banking presence in the State of Nevada or the State of California, or certain other businesses that the entities with which he has such relationships may engage in the future. We could, however, pursue an acquisition of an operating company in which Mr. Ford has an interest. We will not make such an acquisition without the approval of a majority of our disinterested directors.
We cannot assure you that we will be successful in managing our growth.
In the future, large acquisitions and our growth could strain our financial, technical, operational and administrative resources. Our failure to manage our growth successfully could adversely affect our operations and net revenues through increased operating costs and revenues that do not meet our expectations.
The success of our future growth will depend on a number of factors, including:
| • | our ability to acquire, explore, develop and exploit acquired properties in a timely manner; | ||
| • | our ability to continue to attract and retain skilled personnel; and | ||
| • | our ability to continue to expand our technical, operational and administrative resources. |
The success of our business strategy depends on the skills of our CEO.
We are substantially dependent upon the skills of Donald J. Edwards, our President and CEO. Mr. Edwards has experience in private equity acquisitions. The loss of the services of Mr. Edwards could hinder our ability to implement our business strategy. We have no key man insurance on Mr. Edwards to compensate for the loss of his services.
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Risk Factors Relating to Our Common Stock
Our stock price may be volatile due to small public float.
Because the number of shares of our common stock held by the public is
relatively small, the sale of a substantial number of shares of our common
stock, or conversion of another security into a substantial number of shares of
our common stock, may adversely affect the market price of our common stock.
Directors and officers beneficially held approximately 52.93% of our
outstanding common stock at December 20, 2002.
Sales, or the availability for sale, of substantial amounts of our common
stock could adversely affect the value of our common stock
.
Sales of substantial amounts of our common stock in the public market, and
the availability of shares for future sale, including shares of our common
stock issuable upon exercise of outstanding options and warrants or other
rights to acquire shares of our common stock, could adversely affect the
prevailing market price of our common stock. This in turn would adversely
affect the value of the common stock and could impair our future ability to
raise capital through an offering of our equity securities.
Our common stock price is volatile, and consequently an investor may not
be able to resell his or her common stock at or above his or her purchase
price.
The price at which our common stock trades is likely to be volatile and
may fluctuate due to factors such as:
In particular, the stock market has from time to time experienced
significant price and volume fluctuations affecting the stock of financial
companies. Fluctuations may be unrelated to or disproportionate to company
performance. These fluctuations may result in a material decline in the
trading price of our common stock.
•
our historical and anticipated quarterly and annual operating
results;
•
variations between our actual results and analyst and investor
expectations or changes in financial estimates and recommendations by
securities analysts;
•
announcements by us or others and developments affecting our business;
•
investor perceptions of our company and comparable public companies; and
•
conditions and trends in general market conditions.
WHERE YOU CAN FIND MORE INFORMATION
We have filed with the Securities and Exchange Commission a registration statement on Form S-8 under the Securities Act that includes the resale by the selling stockholder of the securities offered by this prospectus. This prospectus constitutes a part of that registration statement and does not contain all of the information in the registration statement. For further information with respect to us and our common stock, please refer to the registration statement. Statements in this prospectus regarding exhibits may not be complete and we refer you to the copy of the full exhibit filed with the registration statement. Copies of the registration statement, including the exhibits, as well as the periodic reports, proxy statements and other information we file with the Securities and Exchange Commission,
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may be examined without charge and copies of the materials may be obtained at prescribed rates from the public reference facilities maintained by the Securities and Exchange Commission at its principal offices located at Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549. You can get information about the operation of the public reference facilities by calling the Securities and Exchange Commission at 1-800-SEC-0330. In addition, the Securities and Exchange maintains a website that contains reports, proxy and information statements and other information regarding issuers that file electronically with the Securities and Exchange Commission at the address http://www.sec.gov.
The Securities and Exchange Commission allows us to “incorporate” into this prospectus information that we file with the Securities and Exchange Commission in other documents. This means that we can disclose important information to you by referring to other documents that contain that information. The information incorporated by reference is considered to be part of this prospectus. We incorporate by reference the documents listed below and any future filings made with the Securities and Exchange Commission under Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended, until all of the securities covered by this prospectus are sold:
| (a) | Our Quarterly Report on Form 10-Q for the quarterly period ended September 30, 2002, as filed with the Commission on November 14, 2002; | ||
| (b) | Our Annual Report on Form 10-K for the fiscal year ended June 30, 2002, as filed with the Commission on September 27, 2002; | ||
| (c) | The description of our Common Stock included in our Registration Statement on Form S-4 as filed with the Commission on July 2, 1996; | ||
| (d) | All documents subsequently filed by us pursuant to Sections 13(a), 13(c), 14, and 15(d) of the Securities Exchange Act of 1934, as amended, prior to the filing of a post-effective amendment that indicates that all securities offered under this prospectus have been sold or that deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference into this prospectus and to be a part of this prospectus from the date such documents are filed. |
Any statement contained in a document incorporated or deemed to be incorporated by reference into this prospectus shall be deemed to be modified or superseded for purposes of this prospectus to the extent that a statement contained herein or in any other subsequently filed document which also is or is deemed to be incorporated by reference in this prospectus modifies or supersedes such statement.
USE OF PROCEEDS
Liberté will not receive any proceeds from any sale of shares of common stock by the selling stockholder. The selling stockholder will receive all of the net proceeds from the sale of shares of common stock offered. We will receive the exercise price of the options at the time of their exercise. Such proceeds will be contributed to working capital and will be used for general corporate purposes.
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SELLING STOCKHOLDER
General. Donald J. Edwards, our President and CEO, is the selling stockholder and is an “affiliate” of Liberté under Rule 405 promulgated under the Securities Act. The selling stockholder has acquired 166,667 and may acquire 166,666 additional shares of our common stock upon the exercise of the option granted to him under his Employment Agreement dated July 1, 2002, with Liberté. The selling stockholder also may in the future acquire 2,573,678 shares of common stock upon exercise of his options granted under the Non-Qualified Stock Option Agreement dated as of July 9, 2002 pursuant to the Plan and approved by the stockholders on November 8, 2002. The agreements referred to above in this paragraph will sometimes be referred to in this prospectus as the “Employment Agreement” and the “Option Agreement.”
This prospectus covers offers and sales from time to time of our common stock by the selling stockholder issued or issuable pursuant to the Edwards Grant and the Option Agreement under the Plan. Under Rule 416 of the Securities Act, the selling stockholder also may offer and sell shares of common stock issued to the selling stockholder as a result of, among other events, stock splits, stock dividends and similar events that effect the number of shares of common stock currently held by the selling stockholder.
Selling Stockholder Table. The following table sets forth information for the selling stockholder as of December 20, 2002. The table lists the selling stockholder’s name, the number of shares of common stock beneficially owned by the selling stockholder before this offering, the number of shares of common stock acquired by the selling stockholder upon the exercise of the Edwards Grant and the Option Agreement that may then be offered by the selling stockholder under this prospectus, and the number of shares of common stock to be owned by the selling stockholder upon completion of the offering if all shares registered for resale by this registration statement are sold and assuming the exercise of all of the options held by the selling stockholder. Beneficial ownership is determined in accordance with the rules of the Commission and includes voting or investment power with respect to the securities. Subject to applicable community property laws, the selling stockholder possesses sole voting and investment power with respect to all shares of common stock shown to be beneficially owned by him. The number of shares of common stock outstanding used in calculating the percentage of the class for the selling stockholder includes shares of common stock underlying options held by him that are exercisable within 60 calendar days of December 20, 2002, but excludes shares of common stock underlying options held by any other person.
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Shares of Common Stock
Shares of Common Stock
Beneficially Owned
Beneficially Owned Before the Offering
After the Offering
Number
Number of
Number of
of Shares
Shares
Shares
Name of Selling
Beneficially
Percent
Being
Beneficially
Percent of
Stockholder
Owned (1)
of Class
Offered(2)
Owned (3)
Class (3)
President, Chief
Executive Officer
and Director
633,595
3.01
%
2,907,011
—
—
| (1) | Includes 166,667 shares that have been acquired by the partial exercise of the Edwards Grant and includes that portion of the Edwards Grant and the Option Grant that are exercisable within 60 calendar days of December 20, 2002. | |
| (2) | Represents the shares of common stock that the selling stockholder may acquire by full exercise of the Edwards Grant and Option Grant. Registration of the shares of common stock for resale does not mean that all or any portion of these shares will be offered or sold by the selling stockholder pursuant to this prospectus. | |
| (3) | Assumes that the selling stockholder sells all of his shares of common stock covered by this prospectus. |
PLAN OF DISTRIBUTION
The selling stockholder may, from time to time, sell all or a portion of the shares of common stock being registered hereunder in privately negotiated transactions or otherwise, at fixed prices that may be changed, at market prices prevailing at the time of sale, at prices related to such market prices or at negotiated prices. The selling stockholder may sell his shares of common stock by one or more of the following methods, without limitation:
| • | transactions on the New York Stock Exchange, on any other national securities exchange or quotation system or in the over-the-counter market on which shares of our common stock may be listed or quoted at the time of any sale; | ||
| • | block trades in which a broker or dealer will attempt to sell the shares of common stock as agent for the selling stockholder, but may take a position and resell a portion of the block as principal to facilitate the transaction; | ||
| • | ordinary brokerage transactions and transactions in which a broker or dealer solicits purchasers; | ||
| • | privately negotiated transactions with purchasers, underwriters, brokers or dealers; | ||
| • | transactions in connection with short sales of the shares of common stock; | ||
| • | transactions involving the writing of options on the shares of common stock which may be listed on an options exchange or otherwise; | ||
| • | transactions involving the pledge of the shares of common stock to secure debt or other obligations; | ||
| • | hedging transactions; |
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| • | to the extent required to be registered, transactions involving the distribution of the shares of common stock by any selling stockholder to its partners, members or securityholders; or | ||
| • | any combination of the transactions identified above. |
From time to time the selling stockholder may engage in short sales, short sales against the box, puts and calls and other transactions in our securities or derivatives thereof and may sell and deliver the shares of common stock in connection therewith or in settlement of securities loans. From time to time the selling stockholder may pledge his shares of common stock pursuant to the margin provisions of his customer agreements with his brokers, if any. Upon a default by the selling stockholder, the selling stockholder’s brokers may offer and sell the pledged shares of common stock from time to time.
In effecting sales, brokers and dealers engaged by the selling stockholder may arrange for other brokers or dealers to participate in such sales. Brokers or dealers may receive commissions or discounts from the selling stockholder (or, if any such broker-dealer acts as agent for the purchaser of such shares, from such purchaser) in amounts to be negotiated which are not expected to exceed those customary in the types of transactions involved. Broker-dealers may agree with the selling stockholder to sell a specified number of such shares of common stock at a stipulated price per share, and, to the extent such broker-dealer is unable to do so acting as agent for the selling stockholder, to purchase as principal any unsold shares of common stock at the price required to fulfill the broker-dealer commitment to the selling stockholder. Broker-dealers who acquire shares of common stock as principal may thereafter resell such shares of common stock from time to time in transactions (which may involve block transactions and sales to and through other broker-dealers, including transactions of the nature described above) in the over-the-counter market or otherwise at prices and on terms then prevailing at the time of sale, at prices then related to the then-current market price or in negotiated transactions and, in connection with such resales, may pay to or receive from the purchasers of such shares commissions as described above. The selling stockholder may also sell the shares of common stock in accordance with Rule 144 under the Securities Act, rather than pursuant to this prospectus.
The selling stockholder and any broker-dealers or agents that participate with the selling stockholder in sales of the shares of common stock may be deemed to be “underwriters” within the meaning of the Securities Act in connection with such sales. In such event, any commissions received by such broker-dealers or agents and any profit on the resale of the shares of common stock purchased by them may be deemed to be underwriting commissions or discounts under the Securities Act.
To comply with certain states’ securities laws, if applicable, the shares of common stock will be sold in such jurisdictions only through registered or licensed brokers or dealers. In addition, in certain states, the common stock may not be sold unless the common stock has been registered or qualified for sale in such state or an exemption from registration or qualification is available and is satisfied.
If a material change occurs in the plan of distribution disclosed in this prospectus, the selling stockholder will not be able to effect transactions in the shares of common stock covered by the prospectus until such time as a post-effective amendment to the registration statement registering the shares covered by this prospectus is filed with the Securities and Exchange Commission.
The plan of distribution disclosed in this prospectus is subject to any restrictions in our certificate of incorporation.
Any securities covered by this prospectus that qualify for sale pursuant to Rule 144 of the Securities Act may be sold under that Rule rather than pursuant to this prospectus. We cannot assure that the selling stockholder will sell any or all of the shares offered hereunder.
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LEGAL MATTERS
The validity of the shares of common stock offered by this prospectus will be passed upon by Haynes and Boone, LLP, Dallas, Texas.
EXPERTS
The consolidated financial statements of Liberté and subsidiary as of June 30, 2002 and 2001, and for each of the years in the three-year period ended June 30, 2002, have been incorporated by reference herein in reliance on the report of KPMG LLP, independent accountants, incorporated by reference herein, and upon the authority of said firm as experts in accounting and auditing.
We will provide without charge to each person, including any beneficial owner, to whom this prospectus is delivered, upon the written or oral request of each person, a copy of any and all of the documents incorporated by reference (other than exhibits to the documents unless exhibits are specifically incorporated by reference in the documents). Any request should be directed to the attention of Liberté’s Investor Relations Department, 200 Crescent Court, Suite 1365, Dallas, Texas 75201, telephone (214) 871-5935.
INDEMNIFICATION ARRANGEMENTS
Section 145(a) of the Delaware General Corporation Law provides that a corporation may indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, which are collectively referred to herein as a proceeding (other than an action by or in the right of the corporation), by reason of the fact that he or she is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or enterprise, against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him or her in connection with such action, suit or proceeding, if such person acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful.
Section 145(b) of the Delaware General Corporation Law provides that a corporation may indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the corporation to procure a judgment in its favor by reason of the fact that such person acted in any of the capacities set forth above, against such expenses actually and reasonably incurred by him or her in connection with the defense or settlement of such action or suit if he or she acted under similar standards, except that no indemnification may be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the corporation unless and only to the extent that the Court of Chancery or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnification for such expenses which the court shall deem proper.
Further, Section 145(c) of the Delaware General Corporation Law provides that, to the extent a director or officer of a corporation has been successful on the merits or otherwise in the defense of any action, suit or proceeding referred to above or in the defense of any claim, issue or matter therein, he or she shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by him or her in connection therewith.
11
Section 145(f) of the Delaware General Corporation Law provides that the statutory provisions on indemnification are not exclusive of indemnification provided pursuant to, among other things, the bylaws or indemnification agreements. Liberté has entered into indemnification agreements with each of its directors and its executive officers pursuant to which we have agreed to indemnify the director or executive officer to the fullest extent permitted by law, and to advance expenses, if the director or executive officer becomes a party to, or witness or other participant in, any threatened, pending or completed action, suit or proceeding by reason of any occurrence related to the fact that such person is or was a director, officer, agent or fiduciary of Liberté or a subsidiary of Liberté, or another entity at Liberté’s request, unless a reviewing party (either outside counsel or a committee of the Board of Directors) determines that the person would not be entitled to indemnification under applicable law.
Section 102(b)(7) of the Delaware General Corporation Law permits a corporation to provide in its certificate of incorporation that a director of the corporation shall not be personally liable to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, but excludes specifically liability for any (i) breach of the director’s duty of loyalty to the corporation or its stockholders, (ii) acts or omissions not in good faith or involving intentional misconduct or a knowing violation of law, (iii) payments of unlawful dividends or unlawful stock repurchases or redemptions, or (iv) transactions from which the director derived an improper personal benefit. The provision does not limit equitable remedies, such as an injunction or rescission for breach of a director’s fiduciary duty of care.
Article IX of our Certificate of Incorporation provides generally for indemnification of all such directors, officers and agents. In addition, Article IX of our Certificate of Incorporation of Liberté provides that, to the fullest extent permitted by the Delaware General Corporation Law, as the same exists or may hereafter be amended, a director of Liberté shall not be personally liable to Liberté or its stockholders for monetary damages for breach of fiduciary duty as a director.
Liberté has entered into an Indemnification Agreement with Donald J. Edwards, an officer and director of Liberté, which provides that Mr. Edwards will be indemnified by Liberté to the fullest extent permitted by law.
Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers or persons controlling the registrant pursuant to the foregoing provisions, the registrant has been informed that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is therefore unenforceable.
12
PART II - INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The Securities and Exchange Commission allows us to “incorporate” into
this prospectus information that we file with the Securities and Exchange
Commission in other documents. This means that we can disclose important
information to you by referring to other documents that contain that
information. The information incorporated by reference is considered to be
part of this prospectus. We incorporate by reference the documents listed
below and any future filings made with the Securities and Exchange Commission
under Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of
1934, as amended, until all of the securities covered by this prospectus are
sold:
Any statement contained in a document incorporated or deemed to be
incorporated by reference into this prospectus shall be deemed to be modified
or superseded for purposes of this prospectus to the extent that a statement
contained herein or in any other subsequently filed document which also is or
is deemed to be incorporated by reference in this prospectus modifies or
supersedes such statement.
(a)
Our Quarterly Report on Form 10-Q for the
quarterly period ended September 30, 2002, as filed with the
Commission on November 14, 2002;
(b)
Our Annual Report on Form 10-K for the fiscal
year ended June 30, 2002, as filed with the Commission on
September 27, 2002;
(c)
The description of our Common Stock included in
our Registration Statement on Form S-4 as filed with the
Commission on July 2, 1996;
(d)
All documents subsequently filed by us pursuant
to Sections 13(a), 13(c), 14, and 15(d) of the Securities
Exchange Act of 1934, as amended, prior to the filing of a
post-effective amendment that indicates that all securities
offered under this prospectus have been sold or that
deregisters all securities then remaining unsold, shall be
deemed to be incorporated by reference into this prospectus
and to be a part of this prospectus from the date such
documents are filed.
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel
Not applicable.
Item 6. Indemnification of Directors and Officers
(a) Section 145(a) of the Delaware General Corporation Law provides that a
corporation may indemnify any person who was or is a party or is threatened to
be made a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative, which are
collectively referred to herein as a proceeding (other than an action by or in
the right of the corporation), by reason of the fact that he or she is or was a
director, officer, employee or agent of the corporation, or is or was serving
at the request of the corporation as a director, officer, employee or agent of
another corporation or enterprise, against expenses (including attorneys’
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him or her in connection with such action, suit or proceeding, if
such person acted in good faith and in a manner he or she reasonably believed
to be in or not opposed to the best interests of the corporation, and, with respect to
any criminal action or proceeding, had no reasonable cause to believe his or
her conduct was unlawful.
13
Section 145(b) of the Delaware General Corporation Law provides that a
corporation may indemnify any person who was or is a party or is threatened to
be made a party to any threatened, pending or completed action or suit by or in
the right of the corporation to procure a judgment in its favor by reason of
the fact that such person acted in any of the capacities set forth above,
against such expenses actually and reasonably incurred by him or her in
connection with the defense or settlement of such action or suit if he or she
acted under similar standards, except that no indemnification may be made in
respect of any claim, issue or matter as to which such person shall have been
adjudged to be liable to the corporation unless and only to the extent that the
Court of Chancery or the court in which such action or suit was brought shall
determine upon application that, despite the adjudication of liability but in
view of all the circumstances of the case, such person is fairly and reasonably
entitled to indemnification for such expenses which the court shall deem
proper.
Further, Section 145(c) of the Delaware General Corporation Law provides
that, to the extent a director or officer of a corporation has been successful
on the merits or otherwise in the defense of any action, suit or proceeding
referred to above or in the defense of any claim, issue or matter therein, he
or she shall be indemnified against expenses (including attorneys’ fees)
actually and reasonably incurred by him or her in connection therewith.
Section 145(f) of the Delaware General Corporation Law provides that the
statutory provisions on indemnification are not exclusive of indemnification
provided pursuant to, among other things, the bylaws or indemnification
agreements. Liberté has entered into indemnification agreements with each of
its directors and its executive officers pursuant to which we have agreed to
indemnify the director or executive officer to the fullest extent permitted by
law, and to advance expenses, if the director or executive officer becomes a
party to, or witness or other participant in, any threatened, pending or
completed action, suit or proceeding by reason of any occurrence related to the
fact that such person is or was a director, officer, agent or fiduciary of
Liberté or a subsidiary of Liberté, or another entity at Liberté’s request,
unless a reviewing party (either outside counsel or a committee of the Board of
Directors) determines that the person would not be entitled to indemnification
under applicable law.
Section 102(b)(7) of the Delaware General Corporation Law permits a
corporation to provide in its certificate of incorporation that a director of
the corporation shall not be personally liable to the corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director,
but excludes specifically liability for any (i) breach of the director’s duty
of loyalty to the corporation or its stockholders, (ii) acts or omissions not
in good faith or involving intentional misconduct or a knowing violation of
law, (iii) payments of unlawful dividends or unlawful stock repurchases or
redemptions, or (iv) transactions from which the director derived an improper
personal benefit. The provision does not limit equitable remedies, such as an
injunction or rescission for breach of a director’s fiduciary duty of care.
Article IX of our Certificate of Incorporation provides generally for
indemnification of all such directors, officers and agents. In addition,
Article IX of our Certificate of Incorporation of Liberté provides that, to the
fullest extent permitted by the Delaware General Corporation Law, as the same
exists or may hereafter be amended, a director of Liberté shall not be
personally liable to Liberté or its stockholders for monetary damages for
breach of fiduciary duty as a director.
14
(b) Liberté has entered into an Indemnification Agreement with Donald J.
Edwards, an officer and director of Liberté, which provides that Mr. Edwards
will be indemnified by Liberté to the fullest extent permitted by law.
Item 7. Exemption from Registration Claimed
The 333,333 shares of Liberté’s common stock under the Edwards Grant that
have been or may be issued to the selling stockholder pursuant to his
employment agreement with Liberté and subsequently included in this
registration statement for reoffer and resale pursuant to the reoffer
prospectus, include 166,667 shares that originally were issued by Liberté in
reliance on an exemption from registration contained in Section 4(2) of the
Securities Act. These shares were issued in transactions that Liberté believes
did not involve a public offering based on the number and nature of the persons
involved and the private character of such transactions. The 2,573,678 shares
underlying the Edwards Option that have not been issued by Liberté to the
selling stockholder pursuant to his Non-Qualified Stock Option Agreement with
Liberté and subsequently included in this registration statement for reoffer
and resale pursuant to the reoffer prospectus are also being registered for
issuance by the Company to Mr. Edwards in this registration statement.
Item 8. Exhibits
15
Table of Contents
Table of Contents
Exhibit No.
Description of Exhibits
3.1
Restated Certificate of Incorporation of Liberté filed as an Exhibit to Liberté’s
Form S-4 filed July 2, 1996 and incorporated by reference herein.
3.2
Bylaws of Liberté, as amended filed as an Exhibit to Liberté’s Form
S-4 filed July 2, 1996 and incorporated by reference herein.
4.1
Specimen Common Stock certificate of Liberté Investors Inc. (1)
4.2
Registration Rights Agreement dated as of July 1, 2002, by and
between Liberté Investors, Inc. and Donald J. Edwards filed as an
Exhibit to Liberté’s Form 8-K filed on July 11, 2002 and incorporated
herein by reference.
5.1
Opinion of Haynes and Boone, LLP, with respect to the validity of the
issuance of the securities registered hereunder. (1)
10.1
Liberté Investors Inc. 2002 Long Term Incentive Plan filed as an
Exhibit to Liberté’s Form 8-K filed on July 11, 2002 and incorporated
herein by reference.
10.2
Employment Agreement dated as of July 1, 2002, by and between Liberté
Investors Inc. and Donald J. Edwards filed as an Exhibit to Liberté’s
Form 8-K filed on July 11, 2002 and incorporated by reference herein.
10.3
Stock Purchase Agreement dated July 9, 2002, by and between Liberté
Investors Inc. and Donald J. Edwards. (1)
10.4
Nonqualified Stock Option Agreement dated as of July 9, 2002, by and
between Liberté Investors Inc. and Donald J. Edwards filed as an Exhibit
to Liberté’s Form 8-K filed on July 11, 2002 and incorporated by reference
herein.
10.5
Indemnification Agreement dated as of July 1, 2002, by and between
Liberté Investors Inc. and Donald J. Edwards filed as an Exhibit to
Liberté’s Form 8-K filed on July 11, 2002 and incorporated by reference
herein.
23.1
Consent of Haynes and Boone, LLP (included in its opinion filed as
Exhibit 5.1 to this Registration Statement). (1)
23.2
Consent of KPMG LLP. (1)
24.1
Power of attorney of the directors and certain officers of the
Company (included on the signature page of this Registration
Statement.) (1)
(1)
Filed herewith.
Table of Contents
Item 9. Undertakings
a. The undersigned Registrant hereby undertakes:
b. The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan’s
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in this Registration Statement shall be deemed to be
a new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
c. Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Commission such indemnification is
against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the registrant of expenses incurred or
paid by a director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
16
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this Registration Statement:
(i)
to include any prospectus required
by Section 10(a)(3) of the Securities Act of
1933, as amended (the “Securities Act”);
(ii)
to reflect in the prospectus any
facts or events arising after the effective date
of the Registration Statement (or the most
recent post-effective amendment thereof) which,
individually or in the aggregate, represent a
fundamental change in the information set forth
in this Registration Statement; and
(iii)
to include any material information with
respect to the plan of distribution not previously
disclosed in this Registration Statement or any
material change to such information in this
Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) will not
apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed by
the registrant pursuant to Section 13 or Section 15(d) of the Exchange
Act that are incorporated by reference in this Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof; and
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
Table of Contents
SIGNATURES AND POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act, the Company certifies
that it has reasonable grounds to believe that it meets all of the requirements
for filing on Form S-8 and has duly caused this Registration Statement to be
signed on its behalf by the undersigned, thereunto duly authorized, in the City
of Dallas, State of Texas, on the 20th day of December, 2002.
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each individual whose signature appears
below hereby constitutes and appoints Donald J. Edwards and Ellen V. Billings,
and each of them, each with full power to act without the other, his true and
lawful attorneys-in-fact and agents, each with full power of substitution and
resubstitution for him and in his name, place and stead, in any and all
capacities, to sign any or all amendments to this Registration Statement, and
to file the same with all exhibits thereto and other documents in connection
therewith, with the Commission, granting unto each of said attorneys-in-fact
and agents full power and authority to do and perform each and every act and
thing requisite and necessary to be done in connection therewith, as fully to
all intents and purposes as he might or could do in person hereby ratifying and
confirming that each of said attorneys-in-fact and agents or his substitutes
may lawfully do or cause to be done by virtue hereto.
Pursuant to the requirements of the Securities Act, this Registration Statement
has been signed by the following persons in the capacities and on the dates
included:
17
18
LIBERTÉ INVESTORS INC.
By:
/s/ Ellen V. Billings
Ellen V. Billings
Vice President, Secretary and Treasurer
Signature
Date
/s/ DONALD J. EDWARDS
Donald J. Edwards
Chief Executive Officer
(Principal Executive Officer)
December 20, 2002
/s/ ELLEN V. BILLINGS
Ellen V. Billings
Vice President & Controller
(Principal Financial Officer and
Principal Accounting Officer)
December 20, 2002
Table of Contents
/s/ GERALD J. FORD
Gerald J. Ford
Chairman of the Board
December 20, 2002
/s/ GENE H. BISHOP
Gene H. Bishop
Director
December 20, 2002
/s/ HARVEY B. CASH
Harvey B. Cash
Director
December 20, 2002
/s/ JEREMY B. FORD
Jeremy B. Ford
Director
December 20, 2002
/s/ EDWARD W. ROSE, III
Edward W. Rose, III
Director
December 20, 2002
/s/ GARY SHULTZ
Gary Shultz
Director
December 20, 2002
Table of Contents
EXHIBIT INDEX
Exhibit No.
Description of Exhibits
3.1
Restated Certificate of Incorporation of Liberté filed as an Exhibit to Liberté’s
Form S-4 filed July 2, 1996 and incorporated by reference herein.
3.2
Bylaws of Liberté, as amended filed as an Exhibit to Liberté’s Form
S-4 filed July 2, 1996 and incorporated by reference herein.
4.1
Specimen Common Stock certificate of Liberté Investors Inc. (1)
4.2
Registration Rights Agreement dated as of July 1, 2002, by and
between Liberté Investors, Inc. and Donald J. Edwards filed as an
Exhibit to Liberté’s Form 8-K filed on July 11, 2002 and incorporated
herein by reference.
5.1
Opinion of Haynes and Boone, LLP, with respect to the validity of the
issuance of the securities registered hereunder. (1)
10.1
Liberté Investors Inc. 2002 Long Term Incentive Plan filed as an
Exhibit to Liberté’s Form 8-K filed on July 11, 2002 and incorporated
herein by reference.
10.2
Employment Agreement dated as of July 1, 2002, by and between Liberté
Investors Inc. and Donald J. Edwards filed as an Exhibit to Liberté’s
Form 8-K filed on July 11, 2002 and incorporated by reference herein.
10.3
Stock Purchase Agreement dated July 9, 2002, by and between Liberté
Investors Inc. and Donald J. Edwards. (1)
10.4
Nonqualified Stock Option Agreement dated as of July 9, 2002, by and
between Liberté Investors Inc. and Donald J. Edwards filed as an Exhibit
to Liberté’s Form 8-K filed on July 11, 2002 and incorporated by reference
herein.
10.5
Indemnification Agreement dated as of July 1, 2002, by and between
Liberté Investors Inc. and Donald J. Edwards filed as an Exhibit to
Liberté’s Form 8-K filed on July 11, 2002 and incorporated by reference
herein.
23.1
Consent of Haynes and Boone, LLP (included in its opinion filed as
Exhibit 5.1 to this Registration Statement). (1)
23.2
Consent of KPMG LLP. (1)
24.1
Power of attorney of the directors and certain officers of the
Company (included on the signature page of this Registration
Statement.) (1)
(1)
Filed herewith.
EXHIBIT 4.1
COMMON COMMON
PAR VALUE $0.01 PER SHARE FORMED UNDER THE LAWS OF
THIS CERTIFICATE AND THE SHARES THE STATE OF DELAWARE
REPRESENTED HEREBY ARE SUBJECT TO
THE RESTRICTIONS ON THE TRANSFER OF SHARES
SHARES, WHICH ARE CONTAINED IN THE
CERTIFICATE OF INCORPORATION.
[LIBERTE LOGO]
THIS CERTIFICATE IS TRANSFERABLE CUSIP 530154
IN NEW YORK, NEW YORK SEE REVERSE SIDE FOR CERTAIN DEFINITIONS
LIBERTE INVESTORS INC.
A DELAWARE CORPORATION
THIS CERTIFIES THAT
IS THE REGISTERED HOLDER OF
FULLY PAID AND NON-ASSESSABLE SHARES OF COMMON STOCK OF
LIBERTE INVESTORS INC. TRANSFERABLE ONLY ON THE BOOKS OF THE CORPORATION BY THE
HOLDER HEREOF IN PERSON OR BY DULY AUTHORIZED ATTORNEY UPON SURRENDER OF THIS
CERTIFICATE PROPERLY ENDORSED. THIS CERTIFICATE IS NOT VALID UNTIL COUNTERSIGNED
BY THE TRANSFER AGENT AND REGISTERED BY THE REGISTRAR.
IN WITNESS WHEREOF, THE SAID CORPORATION HAS CAUSED THIS CERTIFICATE TO
BE SIGNED BY ITS DULY AUTHORIZED OFFICERS AND TO BE SEALED WITH THE SEAL OF THE
CORPORATION.
DATED
SECRETARY [LIBERTE CORPORATE SEAL] COUNTERSIGNED AND REGISTERED:
THE BANK OF NEW YORK,
TRANSFER AGENT
AND REGISTRAR
CHAIRMAN OF THE BOARD AUTHORIZED SIGNATURE
|
LIBERTE INVESTORS INC.
THE COMPANY'S CERTIFICATE OF INCORPORATION RESTRICTS THE TRANSFER OF THE COMPANY'S EQUITY SECURITIES, AND IN SOME CIRCUMSTANCES REQUIRES THE TRANSFER OF SUCH SECURITIES, INCLUDING THESE SHARES, IN CONNECTION WITH THE PRESERVATION OF CERTAIN TAX ATTRIBUTES OF THE COMPANY. THE CERTIFICATE OF INCORPORATION ALSO IN CERTAIN CIRCUMSTANCES: (1) LIMITS THE CONVERSION OR EXCHANGE OF CERTAIN SECURITIES, (2) PROHIBITS THE EXERCISE OF OPTIONS, AND (3) RESTRICTS THE FORECLOSURE OF CERTAIN PLEDGES OF SECURITIES. A COPY OF THE COMPANY'S CERTIFICATE OF INCORPORATION IS ON FILE AT THE COMPANY'S PRINCIPAL OFFICE.
IN ACCORDANCE WITH THE PROVISIONS OF SECTION 151(f) OF THE DELAWARE GENERAL CORPORATION LAW, THE COMPANY WILL FURNISH WITHOUT CHARGE TO EACH STOCKHOLDER WHO SO REQUEST THE POWERS, DESIGNATIONS, PREFERENCES AND RELATIVE, PARTICIPATING, OPTIONAL, OR OTHER SPECIAL RIGHTS OF EACH CLASS OF STOCK OR SERIES THEREOF OF THE COMPANY AND THE QUALIFICATIONS, LIMITATIONS, OR RESTRICTIONS OF SUCH PREFERENCES AND/OR RIGHTS.
The following abbreviations, when used in the inscription on the face of this Certificate, shall be construed as though they were written out in full according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - Custodian
----------- ----------
(Cust) (Minor)
TEN ENT - as tenants by the entireties under Uniform Gifts to Minors
JT TEN - as joint tenants with right of Act
survivorship and not as tenants -----------------------------
in common (State)
Additional abbreviations may also be used though not in the above list.
For value received, hereby sell, assign and transfer unto
----------------------
|
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF NEW OWNER
____________________________ Shares of Common Stock represented by the within Certificate, and do hereby irrevocably constitute and appoint ________________
____________________________ Attorney to transfer the said shares on the books of the within-named Trust with full power of substitution in the premises.
Dated
------------------------------
NOTICE: THE SIGNATURE(S) TO THIS
ASSIGNMENT MUST CORRESPOND WITH ---------------------------------
THE NAME(S) AS WRITTEN UPON THE
FACE OF THE CERTIFICATE IN EVERY
PARTICULAR, WITHOUT ALTERATION OR ---------------------------------
ENLARGEMENT OF ANY CHANGES WHATEVER.
THE SIGNATURE(S) SHOULD BE
GUARANTEED BY AN "ELIGIBLE
GUARANTOR INSTITUTION" AS DEFINED
IN RULE 17Ad-15 UNDER THE
SECURITIES EXCHANGE ACT OF 1934,
AS AMENDED.
|
SIGNATURE(S) GUARANTEED BY:
EXHIBIT 5.1
December 26, 2002
Liberte Investors Inc.
200 Crescent Court, Suite 1365
Dallas, Texas 75201
Re: Registration Statement on Form S-8 of an aggregate of 6,333,333 shares of Common Stock, par value $0.01 per share, of Liberte Investors Inc.
Ladies and Gentlemen:
We have acted as counsel to Liberte Investors Inc., a Delaware corporation (the "COMPANY"), in connection with the preparation of the Registration Statement on Form S-8 (the "REGISTRATION STATEMENT"), filed with the Securities and Exchange Commission under the Securities Act of 1933, as amended, relating to the registration of an aggregate of 6,333,333 shares of common stock, par value $0.01 per share (the "COMMON STOCK"), of the Company that may be issued by the Company pursuant to, and in accordance with, (i) the Liberte Investors Inc. 2002 Long Term Incentive Plan (the "PLAN") and (ii) the Employment Agreement between the Company and Donald J. Edwards ("EDWARDS"), dated as of July 1, 2002 (the "EDWARDS AGREEMENT"), and the registration for resale of an aggregate of 2,907,011 shares of Common Stock of the Company on behalf of Edwards (the "EDWARDS RESALE SHARES") including (i) 2,573,678 shares that may be issued to Edwards pursuant to his Non-Qualified Stock Option Agreement (the "OPTION AGREEMENT") with the Company, dated as of July 9, 2002, (ii) 166,666 shares that may be issued to Edwards pursuant to the Edwards Agreement and (iii) 166,667 shares that previously have been issued to Edwards pursuant to the Edwards Agreement.
In connection therewith, we have examined the Registration Statement and
originals or copies, certified or otherwise identified to our satisfaction, of
(i) the Company's Certificate of Incorporation, as amended (the "CERTIFICATE OF
INCORPORATION"), and the Bylaws of the Company, as amended (the "BYLAWS"), (ii)
minutes, records and resolutions of the corporate proceedings of the Company
with respect to the adoption and amendment of the Plan and the granting of
awards thereunder, with respect to the adoption of the Edwards Agreement and
with respect to the granting of the shares under the Option Agreement, and (iii)
such other documents as we have deemed necessary for the expression of the
opinions contained herein.
In making the foregoing examination, we have assumed the genuineness of all signatures and the authenticity and completeness of all documents submitted to us as originals or duplicate originals. In all such examinations, we have assumed the authenticity and completeness of all documents submitted as originals or duplicate originals, the conformity of original documents of all document copies, the authenticity of the respective originals of such latter documents and the correctness
Liberte Investors Inc.
December 26, 2002
and completeness of such certificates, and the conformity to original documents of all documents submitted to us as certified or photostatic copies. As to questions of fact material to this opinion, where such facts have not been independently established, and as to the content and form of the Certificate of Incorporation, Bylaws, minutes, records, resolutions and other documents or writings of the Company, we have relied, to the extent we deem reasonably appropriate, upon representations or certificates of officers or directors of the Company and upon documents, records and instruments furnished to us by the Company, without independent check or verification of their accuracy.
Based upon the foregoing, and having due regard for such legal considerations as we deem relevant, we are of the opinion that the 6,000,000 shares of Common Stock covered by the Registration Statement, which may be issued from time to time in accordance with the terms of the Plan, have been duly authorized for issuance by the Company, and, when issued in accordance with the terms and conditions of the Plan and any related stock option agreement or other applicable agreements, will be validly issued, fully paid and nonassessable. Further, we are of the opinion that the 333,333 shares of Common Stock covered by the Registration Statement, which have been or may be issued from time to time in accordance with the terms of the Edwards Agreement, have been duly authorized for issuance by the Company, and, when issued in accordance with the terms and conditions of the Edwards Agreement, will be legally and validly issued, fully paid and nonassessable.
In addition, it is our opinion that the 2,907,011 Edwards Resale Shares, (A) if
(i) sold by the Company to Edwards in accordance with the terms and conditions
of the Plan and any related stock option agreement or other applicable
agreements or (ii) sold by the Company to Edwards in accordance with the terms
and conditions of the Edwards Agreement and (B) if subsequently resold by
Edwards in the manner set forth in the prospectus contained in the Registration
Statement, will be legally and validly issued, fully paid and non-assessable.
The opinions expressed herein are limited to the federal laws of the United States of America, and, to the extent relevant to the opinions expressed herein, the General Corporation Law of the State of Delaware (the "DGCL") and applicable provisions of the Delaware Constitution, in each case as currently in effect, and judicial decisions reported as of the date hereof and interpreting the DGCL and such provisions of the Delaware Constitution.
Liberte Investors Inc.
December 26, 2002
We hereby consent to the filing of this opinion with the Securities and Exchange Commission as an exhibit to the Registration Statement and to the reference to our firm under the caption "Legal Matters" in the Prospectus, which is filed with the Registration Statement.
Very truly yours,
/s/ HAYNES AND BOONE, LLP Haynes and Boone, LLP |
EXHIBIT 10.3
STOCK PURCHASE AGREEMENT
This STOCK PURCHASE AGREEMENT ("AGREEMENT") is dated July 9, 2002, and is entered into by and between LIBERTE INVESTORS INC., a Delaware corporation (the "COMPANY"), and DONALD J. EDWARDS, a resident of the State of Illinois ("EDWARDS").
WHEREAS, in accordance with the terms and conditions of Section 4(h) of that certain Employment Agreement dated as of July 1, 2002, by and between Edwards and the Company (the "EMPLOYMENT AGREEMENT"), the Company has agreed to sell to Edwards up to 333,333 shares of its common stock, par value $0.01 per share (the "PURCHASED SHARES"), at a purchase price of $3.00 per share; and
WHEREAS, Edwards now desires to purchase and the Company has agreed to sell 166,667 shares (the "SHARES") of the Purchased Shares at a purchase price of $3.00 per Share.
NOW, THEREFORE, in consideration of the mutual covenants contained herein and in the Employment Agreement and other good and valuable consideration, the sufficiency of which are hereby acknowledged, the parties to this Agreement agree as follows:
1. SALE OF STOCK
1.1 Sale of Stock. Subject to the terms and conditions stated in this Agreement, the Company shall sell, assign, transfer and deliver the Shares to Edwards, and Edwards shall purchase the Shares from the Company upon execution of this Agreement (the "CLOSING").
1.2. Purchase Price. The purchase price to be paid by Edwards to the Company for the Shares is $3.00 per share (the "PURCHASE PRICE"), which amount shall be paid in cash at Closing by wire transfer or by delivery by Edwards to the Company of a cashier's or bank check by overnight delivery on the business day immediately following the Closing.
1.3. Representation by Edwards. Edwards hereby represents and warrants to the Company that he is acquiring the Shares for his own account and for investment purposes and not with a view to their distribution within the meaning of Section 2(11) of the Securities Act of 1933, as amended.
1.4. Acknowledgement. The parties agree and acknowledge that following the Closing, Edwards shall continue to be permitted to purchase up to 166,666 shares of the Company's common stock, constituting the remainder of the Purchased Shares, in accordance with Section 4(h) of the Employment Agreement.
2. CLOSING OF PURCHASE
2.1. Closing. The purchase and sale transaction referred to in Section 1.1 shall take place on the date hereof at the offices of the Company in Dallas, Texas, or at such other time and place as the parties to this Agreement shall mutually agree upon.
2.2. Closing Deliveries. At or promptly following the Closing, (i)
Edwards shall deliver to the Company the Purchase Price, as provided above, and
(ii) the Company shall deliver to Edwards a certificate representing the Shares
being sold on such date.
STOCK PURCHASE AGREEMENT PAGE 1
EXHIBIT 10.3
3. MISCELLANEOUS
3.1. Captions. The captions used in this Agreement are for reference purposes only, and shall not in any way affect the meaning or interpretation of this Agreement.
3.2. Parties in Interest. This Agreement shall be binding upon and shall inure to the benefit of the parties to this Agreement and their respective heirs, executors, administrators, successors and assigns.
3.3. Counterparts. This Agreement may be executed in two or more counterparts, all of which taken together shall constitute one instrument.
3.4. Entire Agreement. This Agreement and the Employment Agreement contain the entire understanding of the parties to this Agreement with respect to the subject matter contained in this Agreement. This Agreement and the Employment Agreement supersede all prior agreements and understandings between the parties with respect to such subject matter.
3.5. Survival of Representations and Covenants. All representations, warranties, covenants, and agreements made by the respective parties to this Agreement hereto shall survive the consummation of the transactions contemplated by this Agreement.
3.6. Further Assurances. Each of the parties to this Agreement agrees that it will perform all such further acts and execute and deliver all such further documents as may be reasonably required in connection with the consummation of the transactions contemplated hereby in accordance with the terms of this Agreement.
3.7. Governing Law. THIS AGREEMENT IS MADE PURSUANT TO, WILL BE CONSTRUED UNDER, AND WILL BE CONCLUSIVELY DEEMED FOR ALL PURPOSES TO HAVE BEEN EXECUTED AND DELIVERED UNDER, THE SUBSTANTIVE LAWS OF THE STATE OF DELAWARE, WITHOUT REGARD TO ITS PRINCIPLES OF CONFLICT OF LAWS.
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STOCK PURCHASE AGREEMENT PAGE 2
IN WITNESS WHEREOF, the parties to this Agreement have executed this Agreement as of the date first written above.
THE COMPANY: LIBERTE INVESTORS INC.
By: /s/ GERALD J. FORD
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Name: Gerald J. Ford
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Title: Chairman of the Board
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EDWARDS: /s/ DONALD J. EDWARDS
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Donald J. Edwards
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STOCK PURCHASE AGREEMENT PAGE 3
EXHIBIT 23.2
INDEPENDENT AUDITORS' CONSENT
The Board of Directors
Liberte Investors Inc.:
We consent to the incorporation by reference in the registration statement on Form S-8 of Liberte Investors Inc. of our report dated August 14, 2002, with respect to the consolidated statements of financial condition of Liberte Investors Inc. as of June 30, 2002 and 2001, and the related consolidated statements of operations, stockholders' equity, and cash flows for each of the years in the three-year period ended June 30, 2002, which report appears in the June 30, 2002, annual report on Form 10-K of Liberte Investors Inc. and to the reference to our firm under the heading "Experts" in the registration statement/prospectus.
/s/ KPMG LLP
Dallas, Texas
December 23, 2002
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