-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, QlPrwJPU2n/s8aUgayrS26+omUF6PUPrqQNeww4sIcOLszHYpErHWeguGKMq710k NhO5m6sHu6LUNDMJLLYWUA== 0000950144-97-000537.txt : 19970123 0000950144-97-000537.hdr.sgml : 19970123 ACCESSION NUMBER: 0000950144-97-000537 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 19970122 EFFECTIVENESS DATE: 19970122 SROS: NASD FILER: COMPANY DATA: COMPANY CONFORMED NAME: EMERGENT GROUP INC CENTRAL INDEX KEY: 0000277028 STANDARD INDUSTRIAL CLASSIFICATION: PERSONAL CREDIT INSTITUTIONS [6141] IRS NUMBER: 570513287 STATE OF INCORPORATION: SC FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-20179 FILM NUMBER: 97509054 BUSINESS ADDRESS: STREET 1: 15 SOUTH MAIN ST STE 750 CITY: GREENVILLE STATE: SC ZIP: 29601 BUSINESS PHONE: 8642358056 MAIL ADDRESS: STREET 1: 15 SOUTH MAIN ST STE 750 CITY: GREENVILLE STATE: SC ZIP: 29601 FORMER COMPANY: FORMER CONFORMED NAME: NRUC CORP DATE OF NAME CHANGE: 19911002 FORMER COMPANY: FORMER CONFORMED NAME: NATIONAL RAILWAY UTILIZATION CORP DATE OF NAME CHANGE: 19840813 S-8 1 EMERGENT GROUP, INC. 1 As filed with the Securities and Exchange Commission on January 22, 1997. 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) South Carolina 57-0513287 (State or other jurisdiction (I.R.S. Employer of incorporation or organization) Identification No.) 15 SOUTH MAIN STREET, SUITE 750 GREENVILLE, SOUTH CAROLINA 29601 ----------------------------------------------------- (Address of principal executive offices -- Zip Code) EMERGENT GROUP, INC. EMPLOYEE STOCK PURCHASE 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 --------------------------------------- (Name and address of agent for service) (864) 235-8056 ------------------------------------------------------------- (Telephone Number, including area code, of agent for service) Copies to: WILLIAM P. CRAWFORD, JR., ESQ. WYCHE, BURGESS, FREEMAN & PARHAM, P.A. GREENVILLE, SOUTH CAROLINA 29602-0728 (864) 242-8200 (TELEPHONE) (864) 235-8900 (FACSIMILE) CALCULATION OF REGISTRATION FEE
========================================================================================================================= 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) - ------------------------------------------------------------------------------------------------------------------------ Common Stock........... 200,000 $ 13.50 $2,700,000 $818.18 ========================================================================================================================
(1) Pursuant to Rule 457(h), the average of the high and low sales prices on January 17, 1997, on the Nasdaq National Market System, as reported in the Wall Street Journal, is used for purposes of calculating the registration fee. The Exhibit Index Appears on Page 11 hereof 2 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 3 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 October 31, 1996, Commission File No. 333-12371. 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 January 14, 1997, attorneys of Wyche, Burgess, Freeman & Parham, P.A., may be deemed to beneficially own in the aggregate approximately 596,351 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 4 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 5 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 6 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.
Exhibit - ------- 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 Articles of Amendment as filed with the Secretary of State of South Carolina on May 26, 1989: Incorporated by reference to Exhibit 4.8 of the Company's registration statement on Form S-8, Commission File No. 333-07923.
6 7 4.8 Articles of Amendment as filed with the Secretary of State of South Carolina on June 14, 1995: Incorporated by reference to Exhibit 4.9 of the Company's registration statement on Form S-8, Commission File No. 333-07923. 4.9 Articles of Amendment as filed with the Secretary of State of South Carolina on April 19, 1996: Incorporated by reference to Exhibit 3.1 in the Quarterly Report on Form 10-Q for the quarter ended March 31, 1996, Commission File No. 0-8909. 4.10 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. 5.1 Opinion of Wyche, Burgess, Freeman & Parham, P.A. regarding legality of shares of the Company. 23.1 Consent of Elliot, Davis & Company, L.L.P. 23.2 Consent of Wyche, Burgess, Freeman & Parham, P.A.: contained in Exhibit 5.1 24.1 Power of Attorney: contained on signature page. 99.1 Employee Stock Purchase Plan
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. 7 8 (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 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 9 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 January 21, 1997. EMERGENT GROUP, INC. By: /s/ John M. Sterling, Jr. ------------------------- John M. Sterling, Jr. Chief Executive Officer By: /s/ Kevin J. Mast ------------------------ Kevin J. Mast Chief Financial Officer (principal financial and accounting officer) 10 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, Kevin J. Mast 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:
Signature Title Date --------- ----- ---- /s/John M. Sterling, Jr. Chairman of the Board of Directors; CEO January 21, 1997 ------------------------------- (principal executive officer) John M. Sterling, Jr. /s/Keith B. Giddens Director; President; Chief Operating Officer January 21, 1997 ------------------------------- Keith B. Giddens /s/Robert S. Davis Director; Vice President - Administration January 21, 1997 ------------------------------- Robert S. Davis /s/Clarence B. Bauknight Director January 21, 1997 ------------------------------- Clarence B. Bauknight /s/Jacob H. Martin Director January 21, 1997 ------------------------------- Jacob H. Martin /s/Porter B. Rose Director January 21, 1997 ------------------------------- Porter B. Rose /s/Buck Mickel Director January 21, 1997 ------------------------------- Buck Mickel /s/Tecumseh Hooper. Jr. Director January 21, 1997 ------------------------------- Tecumseh Hooper, Jr.
11 EXHIBIT INDEX
Exhibit Description - ------- ----------- 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 Articles of Amendment as filed with the Secretary of State of South Carolina on May 26, 1989: Incorporated by reference to Exhibit 4.8 of the Company's registration statement on Form S-8, Commission File No. 333-07923. 4.8 Articles of Amendment as filed with the Secretary of State of South Carolina on June 14, 1995: Incorporated by reference to Exhibit 4.9 of the Company's registration statement on Form S-8, Commission File No. 333-07923. 4.9 Articles of Amendment as filed with the Secretary of State of South Carolina on April 19, 1996: Incorporated by reference to Exhibit 3.1 in the Quarterly Report on Form 10-Q for the quarter ended March 31, 1996, Commission File No. 0-8909. 4.10 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. 5.1* Opinion of Wyche, Burgess, Freeman & Parham, P.A. regarding legality of shares of the Company. 23.1* Consent of Elliot, Davis & Company, L.L.P. 23.2 Consent of Wyche, Burgess, Freeman & Parham, P.A.: contained in Exhibit 5.1 24.1 Power of Attorney: contained on signature page. 99.1* Employee Stock Purchase Plan
*Filed herewith. EX-5.1 2 OPINION OF WYCHE, BURGESS, FREEMAN AND PARHAM 1 EXHIBIT 5.1 [WYCHE, BURGESS, FREEMAN & PARHAM, P.A. LETTERHEAD] January 21, 1997 Emergent Group, Inc. 15 South Main Street Greenville, South Carolina 29601 RE: Issuance of Common Stock in connection with the Emergent Group, Inc. Employee Stock Purchase Plan Ladies and Gentlemen: You have asked us to render certain opinions with respect to the 200,000 shares of common stock, par value $0.05 per share, (the "Stock") of Emergent Group, Inc. (the "Company") to be issued in connection with the Company's Employee Stock Purchase Plan (the "Plan"), which issuance is being registered with the Securities and Exchange Commission under a Registration Statement on Form S-8 filed pursuant to the Securities Act of 1933, as amended (the "Registration Statement"). We have examined the Company's Articles of Incorporation, as amended, and the Company's Bylaws, 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 have made 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 the shares of Common Stock to be sold as contemplated in the Registration Statement will, when sold pursuant to the terms of the Plan, be legally and validly issued and fully paid and non-assessable. The foregoing opinion is limited to matters governed by the laws of the United States and the State of South Carolina in force on the date of this letter. We express no opinion with regard to any matter which may be (or purports to be) governed by the laws of any other state 2 Emergent Group, Inc. January 21, 1997 Page 2 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, or any law respecting disclosure. This opinion is rendered as of 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. We consent to the use of this opinion as an exhibit to the Registration Statement. Yours truly, WYCHE, BURGESS, FREEMAN & PARHAM, P.A. By: /s/ William P. Crawford, Jr. --------------------------------------- William P. Crawford, Jr. EX-23.1 3 CONSENT OF ELLIOTT DAVIS AND COMPANY, LLP 1 EXHIBIT 23.1 ELLIOTT, DAVIS & COMPANY, L.L.P. CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS We consent to the incorporation by reference in the registration statement on Form S-8 pertaining to the Emergent Group, Inc. Employee Stock Purchase Plan of our report dated January 31, 1996, with respect to the consolidated financial statements of Emergent Group, Inc. and subsidiaries included in the Annual Report on Form 10-K for the year ended December 31, 1995. ELLIOTT, DAVIS & COMPANY, L.L.P. January 21, 1997 Greenville, South Carolina EX-99.1 4 EMPLOYEE STOCK PURCHASE PLAN 1 EXHIBIT 99.1 EMERGENT GROUP, INC. EMPLOYEE STOCK PURCHASE PLAN 1. PURPOSE. The purpose of the Emergent Group, Inc. Employee Stock Purchase Plan is to provide employees of Emergent Group, Inc. and selected subsidiary corporations within the meaning of Code Section 24(f) with an opportunity to become owners of the Company through the purchase of shares of Common Stock of the Company. The Company intends this Plan to qualify as an employee stock purchase plan under Code Section 423. Accordingly, the provisions of the Plan shall be construed in a manner consistent with the requirements of Code Section 423. 2. DEFINITIONS. (a) "Code" means the Internal Revenue Code of 1986, as amended. (b) "Company" means Emergent Group, Inc. (c) "Common Stock" means the $.05 par value common stock of the Company. (d) "Compensation" means the regular compensation, including overtime, bonuses and commissions that the Company or a Company Subsidiary pays to an Employee during an Offering Period. (e) "Committee" means the committee described in Paragraph 13. (f) "Company Subsidiary" means each of the Company's Subsidiaries. (g) "Employee" means any person who customarily works as a common law employee for the Company or a Company Subsidiary for more than 20 hours per week. (h) "Offering Periods" means each successive six month period beginning on January 1 and July 1, except that the first such period shall be a five month period from February 1, 1997 through June 30, 1997. (i) "Participant" means an Employee who has completed an authorization form under Paragraph 5 and elected to contribute to the Plan through payroll deductions. (j) "Plan" means the Emergent Group, Inc. Employee Stock Purchase Plan. (k) "Subsidiary" means any corporation (other than the Company) in an unbroken chain of corporations beginning with the Company if, at the time an option is granted to a Participant under the Plan, each of the corporations (other than the last corporation in the unbroken chain) owns stock possessing 50% or more of the total combined voting power of all classes of stock in one of the other corporations in such chain. 2 3. ELIGIBILITY. An Employee whom the Company or a Company Subsidiary has employed continuously for one year as of the first day of an Offering Period shall be eligible to participate in the Plan for that Offering Period; provided, however, that no purchases may be made under the Plan if such purchase would result in the Employee's owning Common Stock possessing 5 percent or more of the total combined voting powerr or value of the Company's outstanding stock. For purposes of determining an individual's amount of stock ownership, any options to acquire shares of Company Common Stock will be counted as shares of stock, and the attribution rules of Section 424(d) of the Code shall apply. 4. OFFERING PERIOD. The Committee will send to each new Employee upon fulfilling the eligibility requirements of Paragraph 3 a notice advising the Employee of his or her right to participate in the Plan for the ensuing Offering Period. 5. PARTICIPATION. An Employee who meets the eligibility requirements of Paragraph 3 may become a Participant for an Offering Period by completing an authorization notice and delivering it to the Committee within a reasonable period of time prior to the first day of such Offering Period. All Participants receiving options under the Plan shall have the same rights and privileges. 6. METHOD OF PAYMENT. A Participant may contribute to the Plan through payroll deductions, as follows: (a) The Participant shall elect on an authorization notice to have deductions made from his or her Compensation for each payroll period during the Offering Period at a rate which shall be at least 1% but not in excess of 15% of his or her Compensation. (b) All payroll deductions shall be credited to the Participant's account under the Plan. No interest or earnings shall accrue on any payroll deductions credited to such accounts. (c) Payroll deductions shall commence on the first payday coinciding with or following the first day of each Offering Period and shall end with the last payday preceding or coinciding with the end of that Offering Period, unless the Participant sooner withdraws as authorized under Paragraph 10 below. (d) A Participant may not alter the rate of payroll deductions during the Offering Period. 2 3 7. GRANTING OF OPTION. (a) On the first day of each Offering Period, a Participant shall receive options to purchase a number of shares of Common Stock with funds withheld from his or her Compensation. Such number of shares shall be determined at the end of the Offering Period according to the following procedure: Step 1 -- Determine the amount the Company withheld from Compensation since the beginning of the Offering Period; Step 2 -- Determine the amount which represents 85% of the lower of fair market value of a share of Common Stock on the (I) first day of the Offering Period, or (II) the last day of the Offering Period; and Step 3 -- Divide the amount determined in Step 1 by the amount determined in Step 2 and round down the quotient to the nearest whole number.
(b) For purposes of the immediately preceding Subparagraph (a), the fair market value of a share of Common Stock as of each date described in Step 2 shall be determined as follows: (i) if the Common Stock is traded on a national securities exchange, the closing sale price on that date; (ii) if the Common Stock is not traded on any such exchange, the closing sale price as reported by the National Association of Securities Dealers, Inc. Automated Quotation System ("Nasdaq") for such date; (iii) if no such closing sale price information is available, the average of the closing bid and asked prices as reported by Nasdaq for such date; or (iv) if there are no such closing bid and asked prices, the average of the closing bid and asked prices as reported by any other commercial service for such date. If any date described in Step 2 is not a trading day, the fair market value of a share of Common Stock for such date shall be determined by using the closing sale price or the average of the closing bid and asked prices, as appropriate, for the immediately preceding trading day. (c) No Participant shall receive options: (i) if, immediately after the grant, that Participant would own shares, or old outstanding options to purchase shares, or both, possessing 5% or more of the total combined voting power or value of all classes of shares of the Company or any Subsidiaries; or (ii) which permits the Participant to purchase shares under all employee stock purchase plans of the Company and any Subsidiary with a fair market value (determined at the time the options are granted) that exceeds $25,000 in any calendar year. 8. EXERCISE OF OPTION. (a) Unless a Participant effects a timely withdrawal pursuant to Paragraph 10 below, 3 4 his or her option for the purchase of shares of Common Stock during an Offering Period will be automatically exercised on the day following the last day of that Offering Period for the purchase of the maximum number of full shares which the sum of the payroll deductions credited to the Participant's account during such Offering Period can purchase pursuant to the formula specified in Paragraph 7(a) hereof. (b) The disposition of any payroll deductions credited to a Participant's account during the Offering Period which are not used for the purchase of shares shall be as follows: (i) If the Participant has elected to withdraw from the Plan as of the end of the Offering Period, the Company shall deliver the amount of the payroll deductions to the Participant. (ii) The amount of any excess payroll deductions shall be applied to the purchase of shares in the immediately succeeding Offering Period. 9. DELIVERY OF COMMON STOCK. As soon as administratively feasible after the end of each Offering Period, the Company shall deliver to each Participant or, in the alternative, to a custodian that the Committee designates, the shares of Common Stock the Participant purchased upon the exercise of the option. In the event of the delivery of the shares to a custodian, the Participant may elect at any time thereafter to take possession of the shares or to have the Committee deliver the shares to any brokerage firm. 10. WITHDRAWAL FROM THE PLAN. (a) A Participant will be deemed to have elected to participate in each subsequent Offering Period following his or her initial election to participate in the Plan, unless the Participant files a written withdrawal notice with the Committee at least ten days prior to the beginning of the Offering Period as of which the Participant desires to withdraw from the Plan. (b) A Participant may withdraw all, but not less than all, payroll deductions credited to his account for an Offering Period at any time during such Offering Period by delivering a written notice to the Committee at least ten days prior to the end of such Offering Period. A Participant who for any reason, including retirement, termination of employment or death, ceases to be an Employee prior to the last day of any Offering Period will be deemed to have withdrawn from the Plan as of the date of such cessation. (c) Upon the withdrawal of a Participant from the Plan under the terms of Subparagraph (b) above, his or her outstanding options under this Plan shall immediately terminate. (d) In the event a Participant withdraws from the Plan for any reason, the Company 4 5 will pay to the Participant all payroll deductions credited to his or her account or, in the event of death, to the persons entitled thereto under the terms of Paragraph 14, as soon as administratively feasible after the date of such withdrawal and no further deductions will be made from the Participant's Compensation. (e) A Participant who has elected to withdraw from the Plan may resume participation in the same manner and pursuant to the same rules as any Employee making an initial election to participate in the Plan; provided, however, that any Participant who is an officer or director of the Company or any Subsidiary and who withdraws from the Plan for any reason shall not be permitted to resume participation any earlier than the first day of an Offering Period which is more than six months after the effective date of the withdrawal or any earlier date that will permit transactions under the Plan to continue to be exempt within the meaning of Rule 16b-3, as promulgated under the Securities Exchange Act of 1934, as amended. 11. STOCK. (a) The shares of Common Stock that the Company shall sell to Participants under the Plan shall be shares of authorized but unissued Common Stock. The maximum number of shares made available for sale under the Plan shall be 200,000 (subject to adjustment upon changes in capitalization of the Company as provided in Paragraph 16 below). If the total number of shares for which options are to be exercised in accordance with Paragraph 8 exceeds the number of shares then available under the Plan, the Company shall make a pro rata allocation of the shares available in as nearly a uniform manner as shall be practicable and as it shall determine to be equitable. (b) A Participant will have no interest in shares covered by his or her option until the Participant exercises the option. (c) Shares that a Participant purchases under the Plan will be registered in the name of the Participant, or if the Participant so directs by written notice to the Committee prior to the last day of the Offering Period, in the names of the Participant and one other person the Participant designates, as joint tenants with rights of survivorship. 12. PARTICIPATION IN PLAN BY EMPLOYEES OF SUBSIDIARIES. Employees of Company Subsidiaries shall be entitled to participate in the Plan. 13. ADMINISTRATION. The compensation committee of the Board of Directors of the Company, as such shall be constituted from time to time (the "Committee") shall administer the Plan. The Committee shall be vested with full authority to make, administer and interpret such rules and regulations as it deems necessary to administer the Plan (including rules and regulations deemed necessary in order to comply with the requirements of Section 423 of the Code). Any determination or 5 6 action of the Committee in connection with the administration or interpretation of the Plan shall be final and binding upon each Employee, Participant and all persons claiming under or through any Employee or Participant. 14. DESIGNATION OF BENEFICIARY. (a) A Participant may file with the Committee a written designation of a beneficiary who is to receive any payroll deductions credited to the Participant's account under the Plan or any shares of Common Stock owed to the Participant under the Plan in the event of the Participant's death. A Participant may change a beneficiary at any time by filing a notice in writing with the Committee. (b) Upon the death of a Participant and upon receipt by the Committee of proof of the identity and existence of the Participant's designated beneficiary, the Committee shall deliver such cash or shares, or both, to the beneficiary. In the event a Participant dies and is not survived by a beneficiary that the Participant designated in accordance with the immediate preceding subparagraph (a), the Committee shall deliver such cash or shares, or both, to the personal representative of the estate of the deceased Participant. If, to the knowledge of the Committee, no personal representative has been appointed within 90 days following the date of the Participant's death, the Committee, in its discretion, may deliver such cash or shares, or both, to the surviving spouse of the deceased Participant, or to any one or more dependents or relatives of the deceased Participant, or if no spouse, dependent or relative is known to the Committee, then to such other person as the Committee may designate. (c) No designated beneficiary shall acquire any interest in such cash or shares prior to the death of the Participant. 15. TRANSFERABILITY. A Participant may not assign, pledge or otherwise dispose of payroll deductions credited to the Participant's account or any rights to exercise an option or to receive shares of Common Stock under the Plan other than by will or the laws of descent and distribution or pursuant to a qualified domestic relations order, as defined in the Employee Retirement Income Security Act. Any other attempted assignment, pledge or other disposition shall be without effect, except that the Company may treat such act as an election to withdraw in accordance with Paragraph 10 above. 16. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION. In the event that the outstanding shares of Common Stock of the Company are hereafter increased or decreased or changed into or exchanged for a different number or kind of securities of the Company by reason of a recapitalization, reclassification, stock split, combination of shares or dividend payable in shares of Common Stock, the Committee shall make an appropriate adjustment to the number and kind of shares available for the granting of options, 6 7 and as to which outstanding options shall be exercisable, and to the option price, all in such a manner so as to preserve, but not increase or decrease, the benefits to the Participant. No fractional shares or options to purchase fractional shares shall be issued in making any such adjustments. All adjustments the Committee makes shall be conclusive. Subject to any required action by the shareholders, if the Company shall be a party to any reorganization involving a merger, consolidation or acquisition of the stock or the assets of the Company, the Committee in its discretion (a) may declare the Plan's termination in the same manner as if the Board of Directors had terminated the Plan pursuant to Paragraph 17 below, or (b) may declare that any option shall apply to the securities of the resulting corporation and each option to purchase one share of the Common Stock shall entitle the Participant to purchase the same number of securities of the resulting corporation as a holder of a share of Common Stock would be entitled to receive for such share. Any issue by the Company of any class of preferred stock, or securities convertible into shares of common or preferred stock of any class, shall not affect, and no adjustment by reason thereof shall be made with respect to, the number of shares of Common Stock subject to any option or the option price except as this Paragraph 16 specifically provides. The grant of an option pursuant to the Plan shall not affect in any way the right or power of the Company to make adjustments, reclassifications, reorganizations or changes of its capital or business structure, or to merge or to consolidate, or to dissolve, liquidate, sell or transfer all or any part of its business or assets. 17. AMENDMENT OR TERMINATION. The Board of Directors of the Company may at any time terminate or amend the Plan. Any amendment of the Plan that (i) materially increases the benefits to Participants, (ii) materially increases the number of securities that may be issued under the Plan, or (iii) materially modifies the eligibility requirements for participation in the Plan shall be subject to approval of the shareholders of the Company. The Company shall refund to each Participant the amount of payroll deductions credited to his or her account as of the date of termination as soon as administratively feasible following the effective date of the termination. 18. NOTICES. All notices or other communications by a Participant to the Committee or the Company shall be deemed to have been duly given when the Secretary of the Company receives them or when any other person the Company designates receives the notice or other communication in the form the Company specifies. 19. NO CONTRACT. This Plan shall not be deemed to constitute a contract between the Company or any Subsidiary and any Employee or to be a consideration or an inducement for the employment of 7 8 any Employee. Nothing contained in this Plan shall be deemed to give any Employee the right to be retained in the service of the Company or any Subsidiary or to interfere with the right of the Company or any Subsidiary to discharge any Employee at any time regardless of the effect which such discharge shall have upon him or her or any options granted hereunder. 20. APPROVAL OF SHAREHOLDERS. The Plan shall be submitted to the shareholders of the Company for their approval within 12 months after the Board of Directors of the Company adopts the Plan. The adoption of the Plan is conditioned upon the approval of the shareholders of the Company, and failure to receive their approval shall render the Plan and all outstanding options thereunder void and of no effect. IN WITNESS WHEREOF, the Company has caused this Plan to be executed as of this 21st day of January, 1997. Emergent Group, Inc. By: /s/ John M. Sterling, Jr. Title: Chief Executive Officer [CORPORATE SEAL] Attest: /s/ Robert S. Davis Title: Vice President - Administration 8 -----END PRIVACY-ENHANCED MESSAGE-----