**Exhibit 10.61**

 

**RESTRICTEDSTOCK AWARD AGREEMENT**

 

**FIRSTCITYFINANCIAL CORPORATION**

**2010 STOCKOPTION AND AWARD PLAN**

 

1.             Grantof Award.  Pursuant to the FirstCityFinancial Corporation 2010 Stock Option and Award Plan (the “***Plan***”) of FirstCity Financial Corporation,a Delaware corporation (“***FIRSTCITY”***),FIRSTCITY grants to

 

 

(the “***Participant”***),

 

effectiveas of                              ,2010 (the “***Date of Grant***”),  an award of                                          (        ) shares of Restricted Stock(the “***Awarded Shares***”), subject to the terms and conditions of thisAgreement.

 

2.             Subject to Plan. This Agreement is subject to the terms and conditions of the Plan, andthe terms of the Plan shall control to the extent not otherwise inconsistentwith the provisions of this Agreement. To the extent the terms of the Plan are inconsistent with the provisionsof this Agreement, the Plan shall control. The capitalized terms used herein that are defined in the Plan shallhave the meanings assigned to them in the Plan. This Agreement is subject to any rules promulgated pursuant to thePlan by the Board or the Committee and communicated to the Participant inwriting.

 

3.             Vesting.  Except as specifically provided in thisAgreement, including, without limitation, the limitations set forth in Section 2,the Awarded Shares shall vest as follows:                                                                                                                                                                            ,provided the Participant is employed by (or, if the Participant is a Director,is providing services to) FIRSTCITY or a Subsidiary on that date.  Notwithstanding the foregoing, the Awarded Sharesshall immediately become one hundred percent (100%) vested on the first tooccur of (i) the Participant’s termination of service due to his or herdeath or Disability or (ii) a Change in Control.

 

4.             Forfeitureand Disgorgement.  The Awarded Sharesthat are not vested in accordance with Section 3 shall be forfeitedupon the Participant’s termination of service for any reason other than due tohis death or Disability.  Uponforfeiture, all of the Participant’s rights with respect to the forfeitedAwarded Shares shall cease and terminate without any further obligations on thepart of FIRSTCITY. Upon forfeiture of the Awarded Shares, the forfeited AwardedShares shall be transferred to FIRSTCITY without further action  by the Participant.

 

5.             Restrictionson Awarded Shares.  Subject to theprovisions of the Plan and the terms of this Agreement, from the Date of Grantuntil the date the Awarded Shares are vested in accordance with Section 3and are no longer subject to forfeiture in accordance with Section 4(the “***Restriction Period***”), theParticipant shall not be permitted to sell, transfer, pledge, assign orotherwise encumber or dispose of any of the Awarded Shares.  Except for these limitations, the Committeemay in its sole discretion, remove any or all of the restrictions on suchAwarded Shares whenever it may determine that, by reason of changes inapplicable laws or changes in circumstances after the date of this Agreement,such action is appropriate.

 

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6.             Legend.  The following legend shall be placed on allcertificates representing Awarded Shares:

 

On the face of the certificate:

 

“Transfer of this stock is restricted in accordance withconditions printed on the reverse of this certificate.”

 

On the reverse:

 

“The shares of stock evidenced by this certificate aresubject to and transferable only in accordance with the terms and conditions ofthat certain FirstCity Financial Corporation 2010 Stock Option and Award Plan,a copy of which is on file at the principal office of FIRSTCITY in Waco, Texasand that certain Restricted Stock Award Agreement dated as of                           ,2010, by and between FIRSTCITY and                                  .  No transfer or pledge of the shares evidencedhereby may be made except in accordance with and subject to the provisions ofsaid Plan and Award Agreement.  Byacceptance of this certificate, any holder, transferee or pledgee hereof agreesto be bound by all of the provisions of said Plan and Award Agreement.”

 

The following legend shall be inserted on a certificateevidencing Shares issued under the Plan if the shares were not issued in atransaction registered under the applicable federal and state securities laws:

 

“Shares of stock represented by this certificate havebeen acquired by the holder for investment and not for resale, transfer ordistribution, have been issued pursuant to exemptions from the registrationrequirements of applicable state and federal securities laws, and may not beoffered for sale, sold or transferred other than pursuant to effectiveregistration under such laws, or in transactions otherwise in compliance withsuch laws, and upon evidence satisfactory to FIRSTCITY of compliance with suchlaws, as to which FIRSTCITY may rely upon an opinion of counsel satisfactory toFIRSTCITY.”

 

All Awarded Shares owned by the Participant shall be subjectto the terms of this Agreement and shall be represented by a certificate orcertificates bearing the foregoing legend.

 

7.             Deliveryof Certificates.  Upon a grant ofRestricted Stock, a stock certificate (or certificates) representing the numberof Shares of Restricted Stock granted to the Participant shall be registered inthe Participant’s account or retained in the physical possession of FIRSTCITYuntil such Awarded Shares are free of restriction under this Agreement.  Certificates for Awarded Shares shall bedelivered to the Participant promptly after, and only after, the RestrictionPeriod has expired without forfeiture pursuant to Section 4.   In connection with the issuance of acertificate for Restricted Stock, the Participant shall endorse suchcertificate in blank or execute a stock power in a form satisfactory toFIRSTCITY in blank and deliver such certificate and executed stock power toFIRSTCITY.

 

8.             Voting.  Subject to Section 4 and Section 5above, the Participant, as record holder of the Awarded Shares, has all of therights of a stockholder of FIRSTCITY, including the right to vote the shares, 

 

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and the right to receive any dividends thereon; provided,however, that this Section 8 shall not create any votingright where the holders of such Awarded Shares otherwise have no such right.

 

9.             Adjustmentof Number of Awarded Shares and Related Matters.  The number of Awarded Shares shall be subjectto adjustment in accordance with Sections 4.3, 12.1-12.4 and Section 13 ofthe Plan.

 

10.          Participant’sRepresentations.  Notwithstanding anyof the provisions hereof, the Participant hereby agrees that he will notacquire any Awarded Shares, and that FIRSTCITY will not be obligated to issueany Awarded Shares to the Participant hereunder, if the issuance of such sharesshall constitute a violation by the Participant or FIRSTCITY of any provisionof any law or regulation of any governmental authority.  Any determination in this connection byFIRSTCITY shall be final, binding, and conclusive.  The obligations of FIRSTCITY and the rightsof the Participant are subject to all applicable laws, rules, and regulations.

 

11.          TheParticipant’s Acknowledgments.  TheParticipant  acknowledges receipt of acopy of the Plan which is annexed hereto, and represents that he is familiarwith the terms and provisions thereof, and hereby accepts these Awarded Sharessubject to all of the terms and provisions thereof.  The Participant hereby agrees to accept asbinding, conclusive, and final all decisions or interpretations of theCommittee or the Board, as appropriate, upon any questions arising under thisAgreement.

 

12.          SpecificPerformance. The parties acknowledge that remedies at law will beinadequate remedies for breach of this Agreement and consequently agree thatthis Agreement shall be enforceable by specific performance.  The remedy of specific performance shall becumulative of all of the rights and remedies at law or in equity of the partiesunder this Agreement.

 

13.          LawGoverning.  This Agreement shall begoverned by, construed, and enforced in accordance with the laws of the Stateof Delaware (excluding any conflict of laws rule or principle of Delawarelaw that might refer the governance, construction, or interpretation of thisAgreement to the laws of another state).

 

14.          NoRight to Continue Service or Employment. Nothing herein shall be construed to confer upon the Participant theright to continue in the employ or to provide services to FIRSTCITY or anySubsidiary, whether as an Employee or as an Director, or interfere with orrestrict in any way the right of FIRSTCITY or any Subsidiary to discharge theParticipant as an Employee or Director at any time.

 

15.          LegalConstruction.  In the event that any oneor more of the terms, provisions, or agreements that are contained in thisAgreement shall be held by a court of competent jurisdiction to be invalid,illegal, or unenforceable in any respect for any reason, the invalid, illegal,or unenforceable term, provision, or agreement shall not affect any other term,provision, or agreement that is contained in this Agreement and this Agreementshall be construed in all respects as if the invalid, illegal, or unenforceableterm, provision, or agreement had never been contained herein.

 

16.          Covenantsand Agreements as Independent Agreements. Each of the covenants and agreements that are set forth in thisAgreement shall be construed as a covenant and agreement independent of anyother provision of this Agreement.  Theexistence of any claim or cause of action of the Participant against FIRSTCITY,whether predicated on this Agreement or otherwise, shall not constitute adefense to the enforcement by FIRSTCITY of the covenants and agreements thatare set forth in this Agreement.

 

17.          EntireAgreement.  This Agreement supersedesany and all other prior understandings and agreements, either oral or inwriting, between the parties with respect to the subject matter hereof andconstitutes the sole and only agreements between the parties with respect tothe said subject matter.  All priornegotiations and agreements between the parties with respect to the subjectmatter hereof are merged into this 

 

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Agreement.  Eachparty to this Agreement acknowledges that no representations, inducements,promises, or agreements, orally or otherwise, have been made by any party or byanyone acting on behalf of any party, which are not embodied in this Agreementor the Plan and that any agreement, statement or promise that is not containedin this Agreement or the Plan shall not be valid or binding or of any force oreffect.

 

18.          Counterparts.  This Agreement may be executed in separatecounterparts, each of which shall be deemed to be an original and all of whichtaken together shall constitute one and the same agreement.

 

19.          PartiesBound.  The terms, provisions, andagreements that are contained in this Agreement shall apply to, be bindingupon, and inure to the benefit of the parties and their respective heirs,executors, administrators, legal representatives, and permitted successors andassigns, subject to the limitation on assignment expressly set forthherein.  No person or entity shall bepermitted to acquire any Awarded Shares without first executing and deliveringan agreement in the form satisfactory to FIRSTCITY making such person or entitysubject to the restrictions on transfer contained herein.

 

20.          Waiver.   Neither the failure nor any delay on thepart of any party to exercise any right, remedy, power or privilege under thisAgreement shall operate as a waiver thereof, nor shall any single or partialexercise of any right, remedy, power or privilege preclude any other or furtherexercise of the same or of any right, remedy, power or privilege, nor shall anywaiver of any right, remedy, power, or privilege with respect to any occurrencebe construed as a waiver of such right, remedy, power or privilege with respectto any other occurrence.

 

21.          Modification.  No change or modification of this Agreementshall be valid or binding upon the parties unless the change or modification isin writing and signed by the parties. Notwithstanding the preceding sentence, FIRSTCITY may amend the Plan to theextent permitted by the Plan.

 

22.          Headings.  The headings that are used in this Agreementare used for reference and convenience purposes only and do not constitutesubstantive matters to be considered in construing the terms and provisions ofthis Agreement.

 

23.          Genderand Number.  Words of any gender usedin this Agreement shall be held and construed to include any other gender, andwords in the singular number shall be held to include the plural, and viceversa, unless the context requires otherwise.

 

24.          Notice.  Any notice required or permitted to bedelivered hereunder shall be deemed to be delivered only when actually receivedby FIRSTCITY or by the Participant, as the case may be, at the addresses setforth below, or at such other addresses as they have theretofore specified bywritten notice delivered in accordance herewith:

 

a.             Noticeto FIRSTCITY shall be addressed and delivered as follows:

 

FirstCity Financial Corporation

 

 

Attn:

Facsimile:

 

b.             Noticeto the Participant shall be addressed and delivered as set forth on thesignature page.

 

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25.          TaxRequirements.  **TheParticipant is hereby advised to consult immediately with his own tax advisorregarding the tax consequences of this Agreement, the method and timing forfiling an election to include this Agreement in income under Section 83(b) ofthe Code, and the tax consequences of such election.  By execution of this Agreement, theParticipant agrees that if the Participant makes such an election, theParticipant shall provide FIRSTCITY with written notice of such election inaccordance with the regulations promulgated under Section 83(b) ofthe Code**.

 

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IN WITNESS WHEREOF, FIRSTCITY has caused this Agreementto be executed by its duly authorized officer, and the Participant, to evidencehis consent and approval of all the terms hereof, has duly executed thisAgreement, as of the date specified in Section 1 hereof.

 

 
|   | **COMPANY**                     |
|--------|---------------------------------|
|   |                            |
|   | FIRSTCITY FINANCIAL CORPORATION |
|   |                            |
|   |                            |
|   | By:                             |   |
|   | Name:                           |   |
|   | Title:                          |   |
|   |                            |
|   |                            |
|   | **PARTICIPANT:**                |
|   |                            |
|   |                            |
|   | Signature                       |
|   |                            |
|   | Name:                           |   |
|   |                            |   |
|   | Address:                        |   |
|   |                            |   |
|   |                            |   |

 

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