-----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, MzNRT4ppb5IhI9BnIt1S4IDcRUIXH88W9fHZeKIJWoNltc2l2LpU2v3QRVD595Eb gB5an1ttGD8ibtqGCrRUUg== 0000950168-96-001240.txt : 19960712 0000950168-96-001240.hdr.sgml : 19960712 ACCESSION NUMBER: 0000950168-96-001240 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 5 FILED AS OF DATE: 19960711 EFFECTIVENESS DATE: 19960730 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: 333-07923 FILM NUMBER: 96593255 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 EMPLOYEE & OFFICER PLAN S-8 #44314.1 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)
South Carolina 6162 57-0513287 - ---------------------------- ----------------------- ---------- (State or other jurisdiction Primary Standard Industrial (I.R.S. Employer of incorporation or organization ) Classification Code Number Identification No.)
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
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........... 566,664 $11.25 $6,374,970 $2,198.27
(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. 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 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 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 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 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 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 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.
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 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 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 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:
Signature Title Date /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.
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 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.
EX-4 2 EXHIBIT 4.8 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:
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 COMMON STOCK 8,360,757 8,360,757 6,595,538 6,311,185 286,353
*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 EX-4 3 EXHIBIT 4.9 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:
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 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)
*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 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 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 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 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 shares as quoted on the National Daily Quotation System on the first day after the adoption of this amendment. 7 EX-5 4 EXHIBIT 5.1 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. 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 EX-24 5 EXHIBIT 24.2 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 -----END PRIVACY-ENHANCED MESSAGE-----