<PAGE>
As filed with the Securities and Exchange Commission on July 11, 1996.
Registration No. 333-
------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
EMERGENT GROUP, INC.
(Exact name of registrant as specified in its charter)
<TABLE>
<CAPTION>
South Carolina 6162 57-0513287
- ---------------------------- ----------------------- ----------
<S> <C> <C>
(State or other jurisdiction Primary Standard Industrial (I.R.S. Employer
of incorporation or organization ) Classification Code Number Identification No.)
</TABLE>
15 SOUTH MAIN STREET, SUITE 750
GREENVILLE, SOUTH CAROLINA 29601
(864) 235-8056
(Address, including zip code, and telephone number, including area code,
of registrant's principal executive offices)
EMERGENT GROUP, INC. 1995 EMPLOYEE
AND OFFICER STOCK OPTION PLAN
(Full Title of the plan)
JOHN M. STERLING, JR., CHIEF EXECUTIVE OFFICER
EMERGENT GROUP, INC.
15 SOUTH MAIN STREET, SUITE 750
GREENVILLE, SOUTH CAROLINA 29601
(864) 235-8056
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copies to:
JO WATSON HACKL, ESQ.
LEE ANN ANDERSON MCCALL, ESQ.
WYCHE, BURGESS, FREEMAN & PARHAM, P.A.
GREENVILLE, SOUTH CAROLINA 29602-0728
(864) 242-8200 (TELEPHONE)
(864) 235-8900 (FACSIMILE)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed Maximum Proposed Maximum Amount
Title of Each Class Amount to Offering Price Aggregate of Registration
of Securities to be Registered be Registered Per Unit (1) Offering Price (1) Fee (1)
<S> <C> <C> <C> <C>
Common Stock........... 566,664 $11.25 $6,374,970 $2,198.27
</TABLE>
(1) Pursuant to Rule 457(h), the average of the high and low sales prices on
July 8, 1996, as reported on the National Daily Quotation Service, is used
for purposes of calculating the registration fee.
<PAGE>
PART I: INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
Item 1. Plan Information.
Not included in this Registration Statement but provided or to be
provided to Plan participants pursuant to Rule 428(b)(1).
Item 2. Registrant Information and Employee Plan Annual Information.
Not included in this Registration Statement but provided or to be
provided to Plan participants pursuant to Rule 428(b)(1).
2
<PAGE>
PART II: INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents or portions thereof are hereby incorporated by
reference:
Emergent Group, Inc.'s Annual Report on Form 10-K for the fiscal year
ended December 31, 1995.
All other reports filed by Emergent Group, Inc. pursuant to Section
13(a) or 15(d) of the Securities Exchange Act of 1934, as amended,
since the end of Emergent Group, Inc.'s 1995 fiscal year.
The description of Emergent Group, Inc.'s common stock contained in the
registration statement on Form S-1 filed with the Securities and
Exchange Commission on April 9, 1996, Commission File No. 333-01393.
All documents subsequently filed by Emergent Group, Inc. 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 which indicates that all
securities offered have been sold or which deregisters all securities then
remaining unsold, shall be deemed to be incorporated by reference in this
registration statement and to be part thereof from the date of filing of such
documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
The law firm of Wyche, Burgess, Freeman & Parham, P.A., located in
Greenville, South Carolina, is counsel to the registrant in connection with this
Registration Statement and has passed on certain aspects of the legality of the
common stock covered hereby. As of July 5, 1996, attorneys of Wyche, Burgess,
Freeman & Parham, P.A., beneficially owned in the aggregate approximately
754,140 of the outstanding shares of common stock of the registrant.
Item 6. Indemnification of Directors and Officers.
Reference is made to other sections in Chapter 8, Article 5 of Title 33
of the 1976 Code of Laws of South Carolina, as amended (the "South Carolina
Code"), which provides as follows:
SECTION 33-8-510. AUTHORITY TO INDEMNIFY.
(a) Except as provided in subsection (d), a corporation
may indemnify an individual made a party to a proceeding because
he is or was a director against liability incurred in the
proceeding if: (1) he conducted himself in good faith; and (2)
he reasonably believed: (i) in the case of conduct in his
official capacity with the corporation, that his conduct was in
its best interest; and (ii) in all
3
<PAGE>
other cases, that his conduct was at least not opposed to its
best interest; and (3) in the case of any criminal proceeding,
he had no reasonable cause to believe his conduct was unlawful.
(b) A director's conduct with respect to an employee
benefit plan for a purpose he reasonably believed to be in the
interests of the participants in and beneficiaries of the plan
is conduct that satisfies the requirement of subsection
(a)(2)(ii).
(c) The termination of a proceeding by judgment, order,
settlement, conviction, or upon a plea of nolo contendere or its
equivalent is not, of itself, determinative that the director
did not meet the standard of conduct described in this section.
(d) A corporation may not indemnify a director under
this section: (1) in connection with a proceeding by or in the
right of the corporation in which the director was adjudged
liable to the corporation; or (2) in connection with any other
proceeding charging improper personal benefit to him, whether or
not involving action in his official capacity, in which he was
adjudged liable on the basis that personal benefit was
improperly received by him.
(e) Indemnification permitted under this section in
connection with a proceeding by or in the right of the
corporation is limited to reasonable expenses incurred in
connection with the proceeding.
SECTION 33-8-520. MANDATORY INDEMNIFICATION. Unless
limited by its articles of incorporation, a corporation shall
indemnify a director who was wholly successful, on the merits or
otherwise, in the defense of any proceeding to which he was a
party because he is or was a director of the corporation against
reasonable expenses incurred by him in connection with the
proceeding.
SECTION 33-8-530. ADVANCE FOR EXPENSES. (a) A
corporation may pay for or reimburse the reasonable expenses
incurred by a director who is a party to a proceeding in advance
of final disposition of the proceeding if: (1) the director
furnishes the corporation a written affirmation of his good
faith belief that he has met the standard of conduct described
in Section 33-8-510; (2) the director furnishes the corporation
a written undertaking, executed personally or on his behalf, to
repay the advance if it is ultimately determined that he did not
meet the standard of conduct; and (3) a determination is made
that the facts then known to those making the determination
would not preclude indemnification under this subchapter.
(b) The undertaking required by subsection (a)(2) must
be an unlimited general obligation of the director but need not
be secured and may be accepted without reference to financial
ability to make repayment.
(c) Determinations and authorizations of payments under
this section must be made in the manner specified in Section
33-8-550.
SECTION 33-8-540. COURT-ORDERED INDEMNIFICATION. Unless
a corporation's articles of incorporation provide otherwise, a
director of the corporation who is a party to a proceeding may
apply for indemnification to the court conducting the proceeding
or to another court of competent jurisdiction. On receipt of an
application, the court after giving any notice the court
considers necessary may order indemnification if it determines:
(1) the director is entitled to mandatory indemnification under
Section 33-8-520, in which case the court also shall order the
corporation to pay the director's reasonable expenses incurred
to obtain court-ordered indemnification; or (2) the director is
fairly and reasonably entitled to indemnification in view of all
the relevant circumstances, whether or not he met the standard
of conduct set forth in Section 33-8-510 or was adjudged liable
as described in Section 33-8-510 (d), but if he was adjudged so
liable his indemnification is limited to reasonable expenses
incurred.
SECTION 33-8-550. DETERMINATION AND AUTHORIZATION OF
INDEMNIFICATION. (a) A corporation may not indemnify a director
under Section 33-8-510 unless authorized in the
4
<PAGE>
specific case after a determination has been made that
indemnification of the director is permissible in the
circumstances because he has met the standard of conduct set
forth in Section 33-8-510.
(b) The determination must be made: (1) by the board of
directors by majority vote of a quorum consisting of directors
not at the time parties to the proceeding; (2) if a quorum
cannot be obtained under subdivision (1), by majority vote of a
committee duly designated by the board of directors (in which
designation directors who are parties may participate),
consisting solely of two or more directors not at the time
parties to the proceeding; (3) by special legal counsel: (i)
selected by the board of directors or its committee in the
manner prescribed in item (1) or (2); or (ii) if a quorum of the
board of directors cannot be obtained under subdivision (1) and
a committee cannot be designated under subdivision (2), selected
by majority vote of the full board of directors (in which
selection directors who are parties may participate); or (4) by
the shareholders, but shares owned by or voted under the control
of directors who are at the time parties to the proceeding may
not be voted on the determination.
(c) Authorization of indemnification and evaluation as
to reasonableness of expenses must be made in the same manner as
the determination that indemnification is permissible, except
that, if the determination is made by special legal counsel,
authorization of indemnification and evaluation as to the
reasonableness of expenses must be made by those entitled under
subsection (b)(3) to select counsel.
SECTION 33-8-560. INDEMNIFICATION OF OFFICERS,
EMPLOYEES, AND AGENTS. Unless a corporation's articles of
incorporation provide otherwise: (1) an officer of the
corporation who is not a director is entitled to mandatory
indemnification under Section 33-8-520, and is entitled to apply
for court-ordered indemnification under Section 33-8-540, in
each case to the same extent as a director; (2) the corporation
may indemnify and advance expenses under this subchapter to an
officer, employee, or agent of the corporation who is not a
director to the same extent as to a director; and (3) a
corporation also may indemnify and advance expenses to an
officer, employee, or agent who is not a director to the extent,
consistent with public policy that may be provided by its
articles of incorporation, bylaws, general or specific action of
its board of directors, or contract.
SECTION 33-8-570. INSURANCE. A corporation may purchase
and maintain insurance on behalf of an individual who is or was
a director, officer, employee, or agent of the corporation, or
who while a director, officer, employee, or agent of the
corporation, is or was serving at the request of the corporation
as a director, officer, partner, trustee, employee, or agent of
another foreign or domestic corporation, partnership, joint
venture, trust, employee benefit plan, or other enterprise,
trust, employee benefit plan, or other enterprise, against
liability asserted against or incurred by him in that capacity
or arising from his status as a director, officer, employee, or
agent, whether or not the corporation would have power to
indemnify him against the same liability under Section 33-8-510
or 33-8-520.
Chapter 8, Article 5 of the South Carolina Code also permits a
corporation to purchase and maintain insurance on behalf of a person who is or
was an officer or director. The Company maintains directors' and officers'
liability insurance.
The Company's Bylaws provide that the Company shall, to the
fullest extent permitted by Section 33-13-180 of the South Carolina Code from
time to time, indemnify all persons whom it may indemnify pursuant thereto. The
Company's Bylaws further provide that the Company may purchase insurance to
effect such indemnification.
5
<PAGE>
Reference is made to Chapter 2 of Title 33 of the 1976 Code of
Laws of South Carolina, as amended, respecting the limitation in a corporation's
articles of incorporation of the personal liability of a director for breach of
the director's fiduciary duty. Reference is made to the Company's Articles of
Amendment filed with the South Carolina Secretary of State on May 26, 1989 which
state:
A director of the corporation shall not be personally liable to
the corporation or any of its shareholders for monetary damages
for breach of fiduciary duty as a director, provided that this
provision shall not be deemed to eliminate or limit the
liability of a director (i) for any breach of the director's
duty of loyalty to the corporation or its stockholders, (ii) for
acts or omissions not in good faith or which involved gross
negligence, intentional misconduct, or a knowing violation of
law, (iii) imposed under Section 33-8-330 of the South Carolina
Business Corporation Act of 1988 (improper distribution to
shareholder), or (iv) for any transaction from which the
director derived an improper personal benefit.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
<TABLE>
<CAPTION>
Exhibit
<S> <C>
4.1 Amended and Restated Articles of Incorporation dated September 20, 1978: Incorporated
by reference to Exhibit 3.1 of the Company's Registration Statement on Form S-1,
Commission File No. 2-62723 (the "1978 Registration Statement").
4.2 Articles of Amendment as filed with the Secretary of State of South Carolina on June 5,
1984: Incorporated by reference to Item 6(a) of the Company's Quarterly Report on Form
10-Q for the quarter ended June 30, 1984, Commission File No. 0-8909.
4.3 Articles of Amendment as filed with the Secretary of State of South Carolina on December
27, 1985: Incorporated by reference to Current Report on Form 8-K dated January 2,
1986, Commission File No. 0-8909.
4.4 Articles of Amendment as filed with the Secretary of State of South Carolina on August
23, 1991: Incorporated herein by reference to Quarterly Report on Form 10-Q for the
quarter ended September 30, 1991, Commission File No. 0-8909.
4.5 Restated By-Laws: Incorporated by reference to Exhibit 3.2 of the 1978 Registration
Statement.
4.6 Amendment to Bylaws: Incorporated by reference to Quarterly Report on Form 10-Q for
the quarter ended September 30, 1991, Commission File No. 0-8909).
4.7 Form of Warrant: Incorporated herein by reference to the Company's Report on Form
10-K for the year ended December 31, 1985, File No. 0-8909.
6
<PAGE>
4.8 Articles of Amendment as filed with the Secretary of State of South Carolina on May 26,
1989.
4.9 Articles of Amendment as filed with the Secretary of State of South Carolina on June 14,
1995.
5.1 Opinion of Wyche, Burgess, Freeman & Parham, P.A. regarding legality of shares of the
Company.
24.1 Consent of Wyche, Burgess, Freeman & Parham, P.A.: contained in Exhibit 5.1
24.2 Consent of Elliot, Davis & Company, L.L.P.
25.1 Power of Attorney: contained on signature page.
99.1 1995 Officer and Employee Stock Option Plan: Incorporated by reference to an exhibit
filed with the Company's 1995 Notice of Annual Meeting and Proxy Statement,
Commission File No. 0-8909.
</TABLE>
ITEM 9: UNDERTAKINGS
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales
are being made, a post-effective amendment to this
registration statement:
(i) To include any prospectus required by
section 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or
events arising after the effective date of the
registration statement (or the most recent
post-effective amendment thereof) which,
individually or in the aggregate, represent a
fundamental change in the information set forth
in the registration statement;
(iii) To include any material information with
respect to the plan of distribution not
previously disclosed in the registration
statement or any material change to such
information in the registration statement;
Provided, however, that paragraphs (a)(1)(i) and
(a)(1)(ii) do not apply if the information required to be
included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or
furnished to the Commission by the registrant pursuant to
section 13 or section 15(d) of the Securities Exchange
Act of 1934 that are incorporated by reference in the
registration statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such
post-effective amendment shall be deemed to be a new
registration
7
<PAGE>
statement relating to the securities offered therein, and
the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being
registered which remain unsold at the termination of the
offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities Act
of 1933 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 Securities and Exchange Commission
such indemnification is against public policy as expressed in the Securities Act
of 1933 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 of 1933 and will be governed by the final adjudication of such issue.
8
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Greenville, State of South Carolina, as of July 8,
1996.
EMERGENT GROUP, INC.
By: /s/ John M. Sterling, Jr.
John M. Sterling, Jr.
Chief Executive Officer
<PAGE>
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints John M. Sterling, Jr., Keith B. Giddens,
and Robert S. Davis, and each of them, as true and lawful attorneys-in-fact and
agents, with full power of substitution and resubstitution, for him or her and
in his or her name, place and stead, in any and all capacities, to sign any and
all amendments (including pre-effective and post-effective amendments) to this
registration statement, and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission and the National Association of Securities Dealers, granting unto
said attorneys-in-fact and agents, and each of them, full power and authority to
do and perform each and every act and thing requisite and necessary to be done
in and about the premises, as fully to all intents and purposes as he or she
might or could do in person, hereby ratifying and confirming all which said
attorneys-in-fact and agents or any of them, or their or his or her substitute
or substitutes, may lawfully do, or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and as of the dates indicated:
<TABLE>
<CAPTION>
Signature Title Date
<S> <C> <C>
/s/ John M. Sterling, Jr. Chairman of the Board of Directors; CEO July 8, 1996
- ---------------------------
John M. Sterling, Jr. (principal executive officer)
/s/ Keith B. Giddens Director; Executive Vice President; Chief July 8, 1996
- ---------------------------
Keith B. Giddens Operating Officer
/s/ Robert S. Davis Director; Chief Financial Officer July 8, 1996
- ----------------------------
Robert S. Davis (principal financial and accounting officer)
/s/ Clarence B. Bauknight Director July 8, 1996
- --------------------------
Clarence B. Bauknight
Director July _, 1996
- ---------------------------
Jacob H. Martin
/s/ Porter B. Rose Director July 8, 1996
- ---------------------------
Porter B. Rose
/s/ Buck Mickel Director July 8, 1996
- ---------------------------
Buck Mickel
/s/ Tecumseh Hooper, Jr. Director July 8, 1996
- ------------------------
Tecumseh Hooper, Jr.
</TABLE>
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit Description
<S> <C>
4.1 Amended and Restated Articles of Incorporation dated September 20, 1978: Incorporated by
reference to Exhibit 3.1 of the Company's Registration Statement on Form S-1, Commission File
No. 2-62723 (the "1978 Registration Statement").
4.2 Articles of Amendment as filed with the Secretary of State of South
Carolina on June 5, 1984: Incorporated by reference to Item 6(a) of
the Company's Quarterly Report on Form 10-Q for the quarter ended June
30, 1984, Commission File No. 0-8909.
4.3 Articles of Amendment as filed with the Secretary of State of South Carolina on December 27,
1985: Incorporated by reference to Current Report on Form 8-K dated January 2, 1986, Commission
File No. 0-8909.
4.4 Articles of Amendment as filed with the Secretary of State of South
Carolina on August 23, 1991: Incorporated herein by reference to
Quarterly Report on Form 10-Q for the quarter ended September 30,
1991, Commission File No. 0-8909.
4.5 Restated By-Laws: Incorporated by reference to Exhibit 3.2 of the 1978 Registration Statement.
4.6 Amendment to Bylaws: Incorporated by reference to Quarterly Report on Form 10-Q for the quarter
ended September 30, 1991, Commission File No. 0-8909).
4.7 Form of Warrant: Incorporated herein by reference to the Company's Report on Form 10-K for the
year ended December 31, 1985, File No. 0-8909.
4.8 Articles of Amendment as filed with the Secretary of State of South Carolina on May 26,
1989.
4.9 Articles of Amendment as filed with the Secretary of State of South Carolina on June 14,
1995.
5.1 Opinion of Wyche, Burgess, Freeman & Parham, P.A. regarding legality of shares of the
Company.
24.1 Consent of Wyche, Burgess, Freeman & Parham, P.A.: contained in Exhibit 5.1
24.2 Consent of Elliot, Davis & Company, L.L.P.
25.1 Power of Attorney: contained on signature page.
99.1 1995 Officer and Employee Stock Option Plan: Incorporated by reference to an exhibit
filed with the Company's 1995 Notice of Annual Meeting and Proxy Statement, Commission File
No. 0-8909.
</TABLE>
<PAGE>
EXHIBIT 4.8
STATE OF SOUTH CAROLINA
SECRETARY OF STATE
ARTICLES OF AMENDMENT
Pursuant to Section 33-10-106 of the 1976 South Carolina Code, as
amended, the undersigned corporation adopts the following Articles of Amendment
to its Articles of Incorporation:
1. The name of the corporation is NRUC CORPORATION.
2. On May 23, 1989, the corporation adopted the following Amendment(s) of
its Articles of Incorporation:
RESOLVED, that the Articles of Incorporation be amended by adding a new
paragraph which would provide as follows:
"A director of the corporation shall not be personally liable
to the corporation or any of its shareholders for monetary
damages for breach of fiduciary duty as a director, provided
that this provision shall not be deemed to eliminate or limit
the liability of a director (i) for any breach of the
director's duty of loyalty to the corporation or its
shareholders; (ii) for acts or omissions not in good faith or
which involve gross negligence, intentional misconduct, or a
knowing violation of law; (iii) imposed under Section 33-8-330
of the Act (improper distribution to shareholder); or (iv) for
any transaction from which the director derived an improper
personal benefit".
3. The manner, if not set forth in the amendment, in which any exchange,
reclassification, or cancellation of issued share provided for in the
Amendment shall be effected, is as follows: (if not applicable, insert
"not applicable" or "NA").
Not applicable
4. Complete either a or b, whichever is applicable.
a. [x] Amendment(s) adopted by shareholder action.
At the date of adoption of the amendment, the number of
outstanding shares of each voting group entitled to vote
separately on the Amendment, and the vote of such shares was:
<TABLE>
<CAPTION>
Voting Group Number of Number of Number of Votes Number of Undisputed*
Outstanding Votes Entitled Represented at Shares Voted
Shares to be Cast the Meeting For Against
<S> <C> <C> <C> <C> <C>
COMMON
STOCK 8,360,757 8,360,757 6,595,538 6,311,185 286,353
</TABLE>
<PAGE>
*NOTE: Pursuant to Section 33-10-106(6)(i), the corporation can
alternatively state the total number of undisputed shares cast
for the amendment by each voting group together with a
statement that the number of votes cast for the amendment by
each voting group was sufficient for approval by that voting
group.
b. [ ] The Amendment(s) was duly adopted by the incorporators or
board of directors without shareholder approval pursuant to
ss.33-6-102(d), 33-10-102 and 33-10-105 of the 1976 South
Carolina Code as amended, and shareholder action was not
required.
5. The effective date of these Articles of Amendment shall be the date of
acceptance for filing by the Secretary of State.
Date: May 23, 1989
NRUC CORPORATION
By: /s/ John A. Mariscotti
President
/s/ John M. Sterling, Jr.
Secretary
FILING INSTRUCTIONS
1. Two copies of this form, the original and either a duplicate original
or a conformed copy, must be filed.
2. If the space in this form is insufficient, please attach additional
sheets containing a reference to the appropriate paragraph in this
form.
3. Filing fees and taxes payable to the Secretary of State at the time of
filing application.
Filing Fee $ 10.00
Filing Tax $100.00
Total $110.00
2
<PAGE>
EXHIBIT 4.9
STATE OF SOUTH CAROLINA
SECRETARY OF STATE
ARTICLES OF AMENDMENT
Pursuant to Section 33-10-106 of the 1976 South Carolina Code, as
amended, the undersigned corporation adopts the following Articles of Amendment
to its Articles of Incorporation:
1. The name of the corporation is Emergent Group, Inc.
2. On June 9, 1995 , the corporation adopted the following Amendment(s) of
its Articles of Incorporation:
1. RESOLVED, that Article 6 of the Amended and Restated Articles of
Incorporation of the Corporation, as amended to date, is hereby amended as
set forth in Attachment A to effect a one-for-three reverse split of the
Company's Common and Class A Common Stock as follows:
Each share of Class A Common stock and Common stock outstanding at
the time of adoption of this amendment will be void. Each
shareholder of Class A Common stock and Common stock at that time
will be entitled to receive a certificate representing the whole
number of shares of Class A Common stock and Common stock
representing one-third of the number of shares of Class A Common
stock and Common stock held by such shareholder at the time of the
adoption of this Amendment. The Company will not issue fractional
shares. Cash will be paid in lieu of any fractional shares at a
price per share equal to the closing bid price of the shares as
quoted on the National Daily Quotation System on the first day
after the adoption of this amendment.
2. RESOLVED, that immediately following consummation of the one-for-three
reverse split described above, the authorized number of shares of Common
Stock of the corporation be increased to 4,000,000 shares. (See Attachment
A.)
3. The manner, if not set forth in the amendment, in which any exchange,
reclassification, or cancellation of issued shares provided for in the
Amendment shall be effected, is as follows: (if not applicable, insert
"not applicable" or "NA").
(See Attachment A for explanation)
4. Complete either a or b, whichever is applicable.
a. [X] Amendment(s) adopted by shareholder action.
At the date of adoption of the amendment, the number of
outstanding shares of each voting group entitled to vote
separately on the Amendment, and the vote of such shares
was:
<PAGE>
<TABLE>
<CAPTION>
Number of Number of Number of Votes Number of Undisputed*
Voting Outstanding Votes Entitled Represented at Shares Voted
Group Shares to be Cast the Meeting For Against
<S> <C> <C> <C> <C> <C>
As to 9,803,438.44 9,803,438.44 7,394,979 7,292,795 97,827
Item 1 (Class A Common) (Class A Common) (Class A Common) (Class A Common) (Class A Common)
200,574.56 200,574.56 142,363 141,224 1,047
(Common) (Common) (Common) (Common) (Common)
As to 9,803,438.44 9,803,438.44 7,394,978 7,265,823 99,714
Item 2 (Class A Common) (Class A Common) (Class A Common) (Class A Common) (Class A Common)
200,574.56 200,574.56 142,364 140,828 931
(Common) (Common) (Common) (Common) (Common)
</TABLE>
*NOTE: Pursuant to Section 33-10-106(6)(i), the corporation can
alternatively state the total number of undisputed shares cast for
the amendment by each voting group together with a statement that
the number of votes cast for the amendment by each voting group
was sufficient for approval by that voting group.
b. [ ] The Amendment(s) was duly adopted by the incorporators
or board of directors without shareholder approval pursuant
to ss.33-6-102(d), 33-10-102 and 33-10-105 of the 1976
South Carolina Code as amended, and shareholder action was
not required.
5. Unless a delayed date is specified, the effective date of these Articles
of Amendment shall be the date of acceptance for filing by the Secretary
of State.
Date: June 13, 1995 Emergent Group, Inc.
(Name of Corporation)
By: /s/ Robert S. Davis
Robert S. Davis
Vice President, Treasurer and
Chief Financial Officer of the Company
2
<PAGE>
FILING INSTRUCTIONS
1. Two copies of this form, the original and either a duplicate original or a
conformed copy, must be filed.
2. If the space in this form is insufficient, please attach additional sheets
containing a reference to the appropriate paragraph in this form.
3. Filing fees and taxes payable to the Secretary of State at the time of
filing application.
Filing Fee $ 10.00
Filing tax 100.00
Total $110.00
Form Approved by South Carolina
Secretary of State 1/89
3
<PAGE>
ATTACHMENT A
6. The Corporation is authorized to issue shares of stock as
follows:
AUTHORIZED
CLASS OF NUMBER OF
SHARES EACH CLASS PAR VALUE
Common 4,000,000 $.05
Class A Common 6,666,667 $.05
A. Each share of Common Stock and Class A Common Stock shall be
entitled to one vote per share on all matters to be submitted
to shareholders of the Corporation. Shares of Common Stock and
Class A Common Stock shall vote together as a single class.
B. Shares of Common Stock and Class A Common Stock shall be
identical in all respects and shall share equally on a per
share basis in any dividends declared and paid by the
Corporation, or in the proceeds of any liquidation,
dissolution or winding up of the Corporation, except that no
share of Class A Common Stock shall be transferable or
assignable in any respect, either of record or beneficially,
unless such transfer or assignment is permitted under the
following provisions:
1. Until such date as the Corporation shall no longer
have any unutilized federal income tax net operating loss or
investment tax credit carryforwards (the "Carryforwards") or
such date after which Section 382 of the Internal Revenue Code
of 1986, as amended (the "Code"), is repealed or so
substantially modified that in the opinion of counsel to the
Corporation the restrictions on transfer described herein are
no longer necessary to accomplish their intended purpose: (a)
any attempted sale, transfer, assignment or other disposition
(including the granting of any option or entering into any
agreement for the sale, transfer or other disposition),
whether voluntary or involuntary, whether of record or
beneficially and whether by operation of law or otherwise (a
"Transfer"), of any share or shares of the Class A Common
Stock of the Corporation or of any option to purchase such
stock, to any person or entity or group of persons or entities
acting in concert (a "Transferee") who or which, directly,
indirectly or by application of the constructive ownership
rules set forth in Section 382(1)(3) of the Code and the
Income Tax Regulations as now in effect or hereafter
promulgated pursuant thereto (the "Regulations"), owns, prior
to the transfer an aggregate number of shares of the
Corporation's outstanding Common Stock and Class A Common
Stock having a fair market value equal to or greater than 4.5
percent of the total number of shares of the Corporation's
outstanding Common Stock and Class A Common Stock shall be
void ab initio insofar as it purports to transfer ownership to
such Transferee and (b) any
4
<PAGE>
attempted Transfer of any share or shares of the Class A
Common Stock of the Corporation or of any option to purchase
such stock, to any Transferee not described in clause (a)
hereof who or which, directly, indirectly or by application of
the constructive ownership rules in Section 382(1)(3) of the
Code and Regulations, would own as a result of the transfer,
or as a result of a subsequent transfer of any share or shares
of the Common Stock, an aggregate number of shares of the
Corporation's outstanding Common Stock and Class A Common
Stock equal to or greater than 4.5 percent of the total number
of shares of the Corporation's outstanding Common Stock and
Class A Common Stock, shall, as to the number of shares
representing such excess over 4.5 percent, be void ab initio
insofar as it purports to transfer ownership to such
Transferee of any shares of Class A Common Stock.
2. The restrictions contained in paragraph 1 of this
Section B of this Article 6 have been included herein for the
purpose of reducing the risk of occurrence of an "ownership
change" within the meaning of Section 382(g) of the Code and
the Regulations that would result in the disallowance or
limitation of the Corporation's utilization of the
Carryforwards.
3. Neither clause (a) nor clause (b) of paragraph 1
of this Section B of this Article 6 shall restrict any
Transfer of Class A Common Stock of the Corporation if (a) the
prior written approval of the Board of Directors of the
Corporation shall have been obtained with respect to such
Transfer and (b) if so requested by the Board of Directors,
counsel to the Corporation shall have delivered its opinion
that such Transfer would not cause an "ownership change"
within the meaning of Section 382(g) of the Code and the
Regulations that would result in the elimination or limitation
of the Corporation's utilization of the Carryforwards. The
Board of Directors shall have the authority, in its sole
discretion, to adopt procedures for the orderly and effective
administration and implementation of this Section B, and, in
deciding whether to approve any proposed Transfer of Class A
Common Stock of the Corporation, the Corporation acting
through any officer may request all relevant information, as
well as an opinion of counsel, in form and substance
reasonably satisfactory to the Board of Directors. No employee
or agent of the Corporation shall be permitted to record any
attempted or purported Transfer of Class A Common Stock of the
Corporation made in violation of this Article 6 and no
Transferee of Class A Common Stock of the Corporation effected
in violation of this Article 6 shall be deemed to have
acquired ownership of Class A Common Stock for any purpose.
Such intended Transferee shall not be entitled to any rights
as a shareholder of the Corporation with respect to such Class
A Common Stock, including, but not limited to, the right to
vote such Class A Common Stock or to receive any distributions
in respect thereof, whether as dividends or in liquidation.
5
<PAGE>
4. If the procedures adopted by the Board of
Directors so require, the Corporation's transfer agent shall
not issue any certificates transferring, assigning or
disposing of or purporting to transfer, assign or otherwise
dispose of legal ownership of any shares of Class A Common
Stock unless the transfer agent receives from the proposed
Transferee, in addition to any other information requested by
it, a certificate signed under penalty of perjury attesting to
the fact that the Transferee is not, and will not become as a
result of the proposed transfer, assignment or other
disposition, an owner of an aggregate number of shares of the
Corporation's outstanding Common Stock and Class A Common
Stock equal to or greater than 4.5 percent of the total number
of shares of the Corporation's outstanding Common Stock and
Class A Common Stock. If at any time the Corporation's
transfer agent receives a request to make a change in record
ownership of shares of Class A Common Stock of the Corporation
which, if effected, would appear to the transfer agent on the
basis of information in its possession to constitute a
violation of this Article 6, then, prior to registering such
change in ownership on the books of the Corporation, the
transfer agent shall notify the Corporation. If the Board of
Directors or an officer of the Corporation designated by the
Board of Directors determines that the proposed change in
ownership would violate this Article 6, then the Corporation
shall so advise the transfer agent and the transfer agent
shall not make such change in ownership on the books of the
Corporation and shall return the stock certificates
representing such shares to the holder of record thereof.
5. All certificates representing shares of Class A
Common Stock shall conspicuously bear the following legend:
The shares represented by this certificate are subject to
certain restrictions on transfers set forth in Article 6 of
the Corporation's Articles of Incorporation, the full text of
which is printed on the reverse side of this certificate. ANY
ATTEMPT TO ACQUIRE CLASS A COMMON STOCK OF THE CORPORATION IN
VIOLATION OF SUCH RESTRICTIONS SHALL BE NULL AND VOID AND MAY
RESULT IN FINANCIAL LOSS TO THE PERSON OR ENTITY ATTEMPTING
SUCH ACQUISITION.
C. Each share of Class A Common stock and Common stock
outstanding at the time of adoption of this amendment will be
void. Each shareholder of Class A Common stock and Common
stock at that time will be entitled to receive a certificate
representing the whole number of shares of Class A Common
stock and Common stock representing one-third of the number of
shares of Class A Common stock and Common stock held by such
shareholder at the time of the adoption of this Amendment. The
Company will not issue fractional shares. Cash will be paid in
lieu of any fractional shares at a price per share equal to
the closing bid price of the
6
<PAGE>
shares as quoted on the National Daily Quotation System on the
first day after the adoption of this amendment.
7
<PAGE>
EXHIBIT 5.1
(864) 242-8290
July 9, 1996
Emergent Group, Inc.
15 South Main Street, Suite 750
Greenville, South Carolina 29601
Re: Registration Statement on Form S-8
1995 Employee and Officer Stock Option Plan
566,664 Shares of Common Stock
Ladies and Gentlemen:
The opinion set forth below is rendered with respect to the 566,664
shares of common stock, par value $.05 per share, of Emergent Group, Inc., a
South Carolina corporation (the "Company"), that will be registered with the
Securities and Exchange Commission by the above-referenced Registration
Statement on Form S-8 pursuant to the Securities Act of 1933, as amended, in
connection with the Company's 1995 Employee and Officer Stock Option Plan (the
"Plan"). We have examined the Company's Articles of Incorporation, and all
amendments thereto, the Company's By-Laws, as amended, and reviewed the records
of the Company's corporate proceedings. We have made such investigation of law
as we have deemed necessary in order to enable us to render this opinion. With
respect to matters of fact, we have relied upon information provided to us by
the Company and no further investigation. With respect to all examined
documents, we have assumed the genuineness of all signatures, the authenticity
of all documents submitted to us as originals, the conformity to authentic
originals of all documents submitted to us as certified, conformed or
photostatic copies and the accuracy and completeness of the information
contained therein.
Based on and subject to the foregoing and subject to the comments,
limitations and qualifications set forth below, we are of the opinion that:
1. The Company is currently existing as a corporation
under the laws of the State of South Carolina.
<PAGE>
Emergent Group, Inc.
July 9, 1996
Page 2
2. Upon satisfaction of the conditions set forth in the Plan,
shares of the Company's common stock covered by the
above-referenced Registration Statement that are issued after
the date hereof under and in compliance with the terms of the
Plan will be legally issued, fully paid to the Company and
non-assessable.
The foregoing opinion is limited to matters governed by the laws of the
State of South Carolina in force on the date of this letter. We express no
opinion with regard to any matter that may be (or that purports to be) governed
by the laws of any other state or jurisdiction. In addition, we express no
opinion with respect to any matter arising under or governed by the South
Carolina Uniform Securities Act, as amended, any law respecting disclosure or
any law respecting any environmental matter.
This opinion is rendered as the date of this letter and applies only to
the matters specifically covered by this opinion, and we disclaim any continuing
responsibility for matters occurring after the date of this letter.
Except as noted below, this opinion is rendered solely for your benefit
in connection with the above-referenced Registration Statement on Form S-8
respecting shares of the Company's common stock to be issued under the Plan and
may not be relied upon, quoted or used by any other person or entity or for any
other purpose without our prior written consent.
We consent to the use of this opinion as an exhibit to the
above-referenced Registration Statement on Form S-8 respecting shares of the
Company's common stock to be issued under the Plan.
WYCHE, BURGESS, FREEMAN & PARHAM, P.A.
By: /s/ Lee Ann Anderson McCall
Lee Ann Anderson McCall
<PAGE>
EXHIBIT 24.2
ELLIOTT, DAVIS & COMPANY, L.L.P.
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
The Board of Directors
Emergent Group, Inc.
Greenville, South Carolina
We hereby consent to the incorporation by reference in the Registration
Statement on Form S-8 of our report dated January 31, 1996, with respect to the
consolidated financial statements of Emergent Group, Inc. included in the Annual
Report (Form 10-K) for the year ended December 31, 1995.
ELLIOTT, DAVIS & COMPANY, L.L. P.
Greenville, South Carolina
July 9, 1996
