EXHIBIT 10.2
STOCK ISSUANCE AGREEMENT
This Agreement (THE "Stock Issuance Agreement") is made and
entered into as of December 30, 2002 between EMERGENT GROUP INC., a Nevada
corporation (the "Company"), and BJH MANAGEMENT, LLC ("BJH").
WHEREAS, the Company and BJH Management, LLC ("BJH") have entered into
that certain consulting agreement effective as of October 15, 2001 that provides
for, among other things, the consulting services (the "Consulting Agreement") of
Xxxxx X. Xxxxx ("Xxxxx") and Xxxxx Xxxxxx ("Buther"); and
WHEREAS, the Consulting Agreement is being terminated and Xxxxx and
Buther are entering into Employment Agreements ("Employment Agreements") with
the Company as of the date of this Agreement; and
WHEREAS, as further consideration under the Consulting Agreement, and
in connection with the entering into of Employment Agreements by and between the
Company, Xxxxx and Buther dated as of December 30, 2002 which shall provide for
the services of Xxxxx as the Chief Executive Officer of the Company and Buther
as the President of the Company, the Company hereby agrees to provide for the
issuance of shares of common stock of the Company, $.001 par value per share
("Shares" or "Common Stock"), subject to the terms and conditions of this
Agreement to be entered into by the parties, in order to provide an opportunity
to BJH, Xxxxx and Buther to acquire an equity ownership position in the Company,
as an incentive to contribute to the success of the Company; and
WHEREAS, according to the Company's records the last reported price of
the Company's Common Stock was $0.005 per share before it was delisted on the
OTC Bulletin Board.
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants and terms hereafter set forth, it is agreed as follows:
1. Issuance of Stock. The Company hereby issues to BJH, 11,502,970
Shares (the "Initial Shares"), which, upon issuance, shall represent 17 1/2 % of
the Company's issued and outstanding shares of Common Stock on a fully diluted
basis as of the date hereof. For the purposes of this Agreement, it is
understood Fully Diluted Shares is calculated as the Company's actual number of
Common Stock outstanding plus Shares that would be outstanding should all
options and warrants with strike prices of $0.25 or less be exercised for Common
Stock as of the date of this Agreement.
2. Purchase of Shares. At any time or from time to time on or before
January 31, 2004, provided that (i) the Employment Agreements are then still in
full force and effect, and (ii) during the period commencing on January 1, 2003
and ending on December 31, 2003 (the "Anniversary Date") (the "One-Year
Period"), the Company has sold additional shares of Common Stock or Common Stock
equivalents (exclusive of any shares of Common Stock issued pursuant to the
exercise or conversion, as the case may be, of options, warrants, convertible
debt or other derivative securities outstanding on the date hereof), BJH shall
have the right (the "Anti-Dilution Right") to purchase from the Company, at a
purchase price of $.005 per share, additional shares of Common Stock (the
"Additional Shares"), such that, upon the purchase of such Additional Shares,
BJH's ownership interest in the Company, on a fully diluted basis, after the
purchase of any such Additional Shares, when aggregated with the Initial Shares,
equals 17 1/2 % of the Company on a fully diluted basis as of the Anniversary
Date, provided, however, that such Anti-Dilution Right shall only apply to up to
$2,000,000 of actual Equity Issuances (meaning stock or common stock equivalents
sold for cash consideration in a private placement or public offering) closed by
the Company during the One Year Period. For the avoidance of doubt, it is
expressly understood and agreed by the parties that the foregoing Anti-Dilution
Right only applies to the first $2,000,000 (or such lesser amount) of Equity
Issuances actually closed by the Company during the One Year Period.
Consequently, in the event and to the extent that the Company effects Equity
Issuances during the One Year Period in excess of $2,000,000, BJH's ownership
interest in the Company will be diluted accordingly. Should the Employment
Agreements be terminated prior to the Anniversary Date, any Additional Shares
simultaneously with the termination of such Employment Agreements, shall be
required to sell such Additional Shares back to the Company at the same price
paid for the Additional Shares by BJH.
paid for the Additional Shares by BJH.
3. Conditions to Issuance of Shares. The following conditions apply as
a prerequisite to the Company's obligation to issue any Shares or deliver any
certificate for Shares or other evidence of ownership of Shares issued to BJH
hereunder:
(a) BJH represents that it has had full access to information about the
Company to the extent necessary for, and has made, an informed investment
decision. BJH warrants and represents that it has not relied on any
representations of the Company or its management regarding the purchase of
Shares hereunder except as expressly stated herein.
(b) Satisfactory arrangements will be made for the payment by BJH of
any federal, state and local taxes required to be paid on account of issuance of
the Shares.
(c) BJH understands that there is not in effect a registration
statement registering the Shares under the Securities Act of 1933, as amended
("1933 Act"), BJH acknowledges and agrees it is accepting the Shares only for
investment and without any present intention to sell or distribute such Shares,
and otherwise in full compliance with the terms and conditions of the 1933 Act,
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and all
other applicable federal and state securities laws, including regulations
thereunder (the "Securities Laws"). BJH further understands that the Securities
Laws, and/or the Company's compliance requirements thereunder, may impose
restrictions on transfer of the Shares acquired hereunder.
(d) The Company may, in its absolute discretion, also take whatever
additional actions it deems appropriate to effect compliance with the Securities
Laws, including, but not limited to, placing legends on shares certificates and
issuing stop-transfer orders to transfer agents and registrars.
(e) Any registration or other qualification of the Shares under any
state or federal law or under the rulings or regulations of the Securities and
Exchange Commission or any other governmental regulatory body, which the Company
shall, in its absolute discretion, deem necessary or advisable, shall be
completed and the Company shall use its best efforts to obtain such registration
or approval.
(f) Any approval or other clearance from any state or federal
governmental agency which the Company shall, in its absolute discretion,
determine to be necessary or advisable shall be obtained and the Company shall
use its best efforts to obtain such approval or clearance.
4. Issuance of the Shares. The Shares issuable and deliverable
hereunder may be either previously authorized but unissued shares or issued
shares which have then been reacquired by the Company. Upon signing of this
Stock Issuance Agreement, the Company's Stock Administrator shall promptly
arrange for issuance and delivery to BJH of certificates representing the
Shares. BJH understands and agrees that the Shares shall be registered in its
name and in certificated form.
5. Legends on Share Certificates. BJH understands and agrees that the
Company shall cause legends in substantially the form set forth below to be
placed on the Share certificates evidencing ownership of the Shares, together
with any other legends that may be required by applicable state or federal
securities laws:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT") AND MAY NOT BE OFFERED,
ASSIGNED, SOLD, PLEDGED OR HYPOTHECATED, OR OTHERWISE TRANSFERRED, UNLESS AND
UNTIL REGISTERED UNDER THE ACT OR, IN THE OPINION OF COUNSEL SATISFACTORY TO THE
ISSUER OF THESE SECURITIES, SUCH TRANSACTION IS IN COMPLIANCE WITH THE ACT. THE
SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN RESTRICTIONS ON
TRANSFER AS SET FORTH IN THE STOCK ISSUANCE AGREEMENT DATED December 30, 2002
BETWEEN THE ISSUER AND THE ORIGINAL HOLDER OF THESE SHARES, A COPY OF WHICH MAY
BE OBTAINED AT THE PRINCIPAL OFFICE OF THE ISSUER. SUCH TRANSFER RESTRICTIONS
AND REPURCHASE RIGHTS ARE BINDING ON THE ORIGINAL HOLDER AND TRANSFEREES OF
THESE SHARES.
6. Stop-Transfer Notices. BJH understands and agrees that the Company
may issue appropriate "stop transfer" instructions to its transfer agent in
order to ensure compliance with the restrictions referred to in this Stock
Issuance Agreement with respect to the Shares.
7. (a) Restrictions on Transfer of the Shares. For a period of twelve
months from the date of this signed Agreement, none of the Shares nor any
beneficial interest therein shall be sold, transferred, assigned, pledged,
encumbered or otherwise disposed of in any way other than in accordance with the
provisions of this Stock Issuance Agreement. Notwithstanding the foregoing, BJH
may transfer these Shares to Xxxxx and/or Buther and Xxxxx and/or Buther may
transfer the Shares during Xxxxx'x and/or Buther's lifetime, or on Xxxxx'x
and/or Buther's death by will or intestacy, to a member or members of Xxxxx'x or
Buther's Immediate Family and such a transfer shall be exempt from the
provisions of this Section, provided that Xxxxx or Buther notifies the Company
in writing within thirty (30) days after such transfer. An "Immediate Family"
member shall mean a parent, sibling, spouse or issue, spouses of such issue and
any trust for the benefit of, or the legal representative of, any of the
preceding persons and/or Xxxxx or Buther, or any partnership substantially all
of the partners of which are one or more of such persons or Xxxxx or Buther or
any limited liability company substantially all of the members of which are one
or more of such persons or Xxxxx or Buther. The terms of this Stock Issuance
Agreement shall be binding on and shall inure to the benefit of, any valid
transferee under these provisions. The Company shall not be required to (a)
transfer on its books any Shares that have been transferred or pledged in
violation of any of the provisions of this Stock Issuance Agreement or (b) to
treat as owner of such Shares or to accord the rights of a stockholder to any
transferee or pledgee to whom such shares shall have been so transferred or
pledged. Any such attempted transfer or pledge shall be void. Transfers
permitted under this paragraph shall be deemed to be made to "Permitted
Transferees".
(b) Restrictions on Sale of the Shares.BJH will be restricted from
selling any stock for a period of 12 months from the date of this signed
Agreement other than transfers to related parties as permitted under the
Company's Stock Option Plan or as permitted in 7a) above or in the event of a
sale or change of control of the Company.
(c) Incidental Registration. If the Company at any time proposes to
file on its behalf and/or on behalf of any of its security holders a
registration statement under the Securities Act on any form (other than a
registration statement on Form S-4 or S-8 or any successor form for securities
to be offered in a transaction of the type referred to in Rule 145 under the
Securities Act or to the Company's employees pursuant to any employee benefit
plan, respectively) for the general registration of securities to be sold for
cash with respect to the Company's Common Stock, it will give written notice to
BJH at least 30 days before the initial filing with the Commission of the
registration statement, which notice shall set forth the intended method of
disposition of the securities that the Company proposes to register. The notice
shall offer to include in such filing the aggregate number of shares of Common
Stock issued to BJH under this Agreement as BJH, or Permitted Transferees may
request. BJH or Permitted Transferees shall advise the Company in writing within
20 days after the date of receipt of such offer from the Company, setting forth
the amount of Stock for which registration is asked. The Company shall thereupon
include in such filing the number of shares of Stock for which registration is
so asked.
8. Taxes.
(a) Tax Consequences. BJH represents that it has reviewed with its
own tax advisor the federal, state, local and foreign tax consequences, if any,
of this issuance and the transactions contemplated by this Stock Issuance
Agreement. BJH further represents that it has relied solely on such advisor and
not on any statements or representations of the Company or any of its agents
with respect to tax matters in connection with this Agreement. BJH understands
that BJH (and not the Company) shall be responsible for any tax liability that
BJH may incur as a result of this investment or the transactions contemplated by
this Stock Issuance Agreement.
9. Rights of Engagement. BJH acknowledges and understands that the
benefits conferred upon BJH hereunder do not constitute an express or implied
promise of engagement by the Company, and that this Stock Issuance Agreement
shall not be construed as obligating the Company to engage BJH for any specific
period of time. Nothing in this Agreement however shall affect the rights of
Xxxxx or Buther under Employment Agreements by and between the Company and Xxxxx
and Buther executed simultaneously herewith.
10. Governing Law. This Agreement shall be governed by, construed and
enforced in accordance with the internal laws of the State of New York, without
giving reference to principles of conflict of laws. Each of the parties hereto
irrevocably consents to the venue and exclusive jurisdiction of the federal and
state courts located in the State of New York, County of New York. The parties
hereby knowingly, irrevocably, voluntarily and intentionally waive any right
they may have to a trial by jury in respect of any action, proceeding or
counterclaim based on this Stock Issuance Agreement or the transactions
contemplated in it, or any course of conduct, course of dealing, statements
(whether verbal or written) or actions of any party to it.
11. No Waiver; Severability. Either party's failure to enforce any
provision hereunder shall not in any way be construed as a waiver of any such
provision, nor prevent that party from thereafter enforcing such provision
and/or any other provision of this agreement. The invalidity of any provision of
this Stock Issuance Agreement shall not in any manner affect the validity or
enforceability of any other provisions hereof.
12. Consents and Approvals: No Violations.
(a) Neither the execution, delivery and performance of this Agreement
by the Company, nor the consummation by the Company of the transactions
contemplated by this Agreement will (i) conflict with or result in any breach of
any provisions of the Certificate of Incorporation or By-Laws of the Company,
(ii) require a filing with, or a permit, authorization, consent or approval of,
any Governmental Entity except in connection with or in order to comply with the
applicable provisions of the Securities Act, the Securities Exchange Act of
1934, as amended, state securities or "blue sky" laws and the By-Laws of the
National Association of Securities Dealers, or (iii) violate any law, order,
writ, injunction, decree, statute, rule or regulation of any Governmental Entity
applicable to the Company or any of its properties or assets.
(b) Authority Relative to this Agreement. The Company has the
requisite corporate power and authority to execute and deliver this Agreement
and to consummate the transactions contemplated by this Agreement. The Board of
Directors of the Company has duly authorized the execution and delivery of this
Agreement by the Company and the consummation by the Company of the transactions
contemplated on its part by this Agreement, and no other corporate proceedings
on the part of the Company are necessary to authorize this Agreement or for the
Company to consummate the transactions contemplated by it. The Company has duly
validly executed and delivered this Agreement and it is a valid and binding
Agreement of the Company, enforceable against the Company in accordance with its
terms, subject to bankruptcy or insolvency laws affecting creditors' rights
generally and to general principles of equity.
13. Capitalization. The Company's authorized capital stock consists of 100
million shares of the Company's Common Stock. As of December 30, 2002, (i)
approximately 53,414,833 shares of the Company's Common Stock were issued and
outstanding and (ii) options to acquire approximately 15,188,000 shares of the
Company's Common Stock (the "Stock Options") are outstanding. The BJH
Management, LLC Shares will be, when issued in accordance with this Agreement,
duly authorized, validly issued, fully paid and non-assessable and free of
pre-emptive rights.
14. Notice. Any notice to be given under the terms of this Stock Issuance
Agreement to the Company shall be addressed to the Company in care of its Stock
Administrator, Xxxx XxXxx, CFO, Emergent Group, Inc., 000 Xxxxx Xxxxxxx Xxxxxx,
Xxxxxxxx, Xxxxxxxxxx 00000 with a copy to Xxxxxx Xxxxx P.C., 000 Xxxxx Xxxx
Xxxx, Xxxxx 00, Xxxxx Xxxx, Xxx Xxxx 00000, Attn: Xxxxx Xxxxx, Esq. and any
notice to be given to BJH shall be addressed to it at 000 Xxxxxxxx Xxxxxx, Xxxxx
000, Xxx Xxxxxxxx, XX 00000, Attn: Xxxxx X. Xxxxx with a copy to Xxxxx at 00 Xxx
Xxxx, Xxxxxx, Xxx Xxxx 00000 and Buther at 000 Xxxxxxxxxx Xxxxxx, Xxxxx Xxxxx,
Xxx Xxxx 00000. By a notice given pursuant to this Section, either party may
hereafter designate a different address for notices to be given to it. Any
notice to any party will be effective upon receipt (or refusal of receipt), and
shall be in writing and delivered personally or sent by telecopy or certified or
registered mail, postage prepaid.
15. Compliance with Laws. The Stock Issuance Agreement and the offer,
sale, issuance and delivery of Shares and the payment of the purchase price
thereunder are subject to compliance with all applicable federal and state laws,
rules and regulations (including but not limited to Securities Laws and federal
margin requirements) and to such approvals by any listing, regulatory or
governmental authority as may, in the opinion of counsel for the Company, be
necessary or advisable in connection therewith. Any securities delivered
pursuant to the Stock Issuance Agreement shall be subject to such restrictions,
and the person acquiring such securities shall, if requested by the Company,
provide such assurances and representations to the Company as the Company may
deem necessary or desirable to assure compliance with all applicable legal
requirements. To the extent permitted by applicable law, the Stock Issuance
Agreement and the Shares offered and sold hereunder shall be deemed amended to
the extent necessary to conform to such laws, rules and regulations
16. Titles. Titles are provided herein for convenience only and are not
to serve as a basis for interpretation or construction of this Agreement.
17. Entire Agreement; Amendments. This Stock Issuance Agreement
represents the entire agreement between the parties with respect to the issuance
of Common Stock by the Company, and supersedes all prior understandings of the
parties with regard thereto. In the event of a conflict between the provisions
of the Employment Agreements with the Company and this Stock Issuance Agreement,
the terms of the Stock Issuance Agreement shall prevail. This Stock Issuance
Agreement may not be modified except in a writing signed by both parties.
IN WITNESS WHEREOF, this Stock Issuance Agreement has been executed by
the parties as indicated below.
BJH MANAGEMENT, LLC EMERGENT GROUP INC.
By: /s/ Xxxxx X. Xxxxx By:/s/ Xxxx X. Xxxxxxx
Xxxxx X. Xxxxx, Managing Member Name: Xxxx X. Xxxxxxx
Title: CEO
Date: December 30, 2002 Date: December 30, 2002
ATTEST:
Address:
000 Xxxxxxxx Xxxxxx, Xxxxx 000 /s/ Xxxxxxx X. XxXxx
New Rochelle, New York 10801 Name: Xxxxxxx X. XxXxx
Title: Chief Financial Officer
