As filed with the Securities Exchange Commission on July 30, 2021
Registration No. 333-_________________
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
AMERGENT HOSPITALITY GROUP INC.
(Exact name of registrant as specified in its charter)
| Delaware | 84-4842958 | |
|
(State or other jurisdiction of incorporation or organization) |
(I.R.S. Employer Identification No.) |
| 7529 Red Oak Lane, Norwalk, Charlotte, NC | 28226 | |
| (Address of Principal Executive Offices) | (Zip Code) |
2021 Amergent Hospitality Group Inc. Inducement Plan
(Full title of the plan)
Michael D. Pruitt
Chief Executive Officer
7529 Red Oak Lane
Charlotte, NC 28226
(Name and address of agent for service)
(704) 366-5122
(Telephone number, including area code, of agent for service)
with copies to:
Ruba Qashu
Libertas Law Group, Inc.
225 Santa Monica Blvd., 5th Floor
Santa Monica, CA 90061
(949) 355-5405
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company.
| Large accelerated filer | [ ] | Accelerated filer [ ] |
| Non-accelerated filer | [ ] | Smaller reporting company [X] |
| Emerging growth company [ ] |
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. [ ]
Calculation of Registration Fee
| Title of securities to be registered | Amount to be registered(1) | Proposed maximum offering price per share(2) | Proposed maximum aggregate offering price | Amount of registration fee | ||||||||||||
| Common Stock, $0.0001 par value | 500,000 | $ | 0.549 | $ | 274,500 | $ | 29.95 | |||||||||
| (1) | Pursuant to Rule 416(a) under the Securities Act of 1933, as amended, (the “Securities Act”) this registration statement shall also cover such indeterminate number of additional shares of the Registrant’s common stock that become issuable by reason of any stock dividend, stock split, recapitalization or other similar transaction that increases the number of the Registrant’s outstanding shares to be offered pursuant to the applicable plan described herein. | |
| (2) | Estimated solely for purposes of calculating the registration fee in accordance with Rule 457(c) and Rule 457(h)(1) of the Securities Act based on the average of the high and low prices of the Registrant’s common stock on the OTCQB on January 26, 2021. |
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Information required by Part I to be contained in the Section 10(a) prospectus is omitted from this registration statement in accordance with Rule 428 under the Securities Act of 1933, as amended (the “Securities Act”), and the Note to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents, which have been filed with the SEC by Amergent Hospitality Group Inc., a Delaware corporation (the “Registrant”), are incorporated herein by reference as of their respective dates:
| (a) | the Registrant’s Annual Report on Form 10-K for the year ended December 31, 2020 as filed with the SEC on April 15, 2021; | |
| (b) | The Registrant’s Quarterly Report on Form 10-Q for the quarterly period ended March 31, 2021 as filed with the SEC on May 24, 2021; | |
| (c) | The Registrant’s Current Reports on Form 8-K as filed with the SEC on July 15, 2021, April 1, 2021, February 22, 2021 and January 19, 2021; and | |
| (d) | the description of the Registrant’s common stock set forth in Item 11 of Registrant’s Form 10 under the heading “Description of Registrant’s Securities to be Registered” filed April 9, 2020 and amended June 3, 2020, June 23, 2020 and July 2, 2020, including any amendment or report filed for the purpose of updating such description. |
All documents subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the filing of a post-effective amendment to this Registration Statement which indicates that all securities offered hereby have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference into this Registration Statement and to be part hereof from the respective filing dates of such documents.
Any statement contained herein or in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein or in any other subsequently filed document which also is or is deemed to be incorporated by reference herein modifies or supersedes such earlier statement. Any statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement.
Under no circumstances will any information furnished under current Items 2.02 or 7.01 of Form 8-K be deemed incorporated herein by reference unless such Form 8-K expressly provides to the contrary.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
None.
Item 6. Indemnification of Directors and Officers.
We are subject to the laws of Delaware on corporate matters, including their indemnification provisions. Section 102 of the General Corporation Law of Delaware (the “DGCL”) permits a corporation to eliminate the personal liability of directors of a corporation to the corporation or its stockholders for monetary damages for a breach of fiduciary duty as a director, except where the director breached his duty of loyalty, failed to act in good faith, engaged in intentional misconduct or knowingly violated a law, authorized the payment of a dividend or approved a stock repurchase in violation of Delaware corporate law or obtained an improper personal benefit.
Section 145 of the DGCL provides that a corporation has the power to indemnify a director, officer, employee, or agent of the corporation, or a person serving at the request of the corporation for another corporation, partnership, joint venture, trust or other enterprise in related capacities against expenses, including attorneys’ fees, judgments, fines and amounts paid in settlement actually and reasonably incurred by the person in connection with an action, suit or proceeding to which he was or is a party or is threatened to be made a party to any threatened, ending or completed action, suit or proceeding by reason of such position, if such person acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation, and, in any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful, except that, in the case of actions brought by or in the right of the corporation, no indemnification shall be made with respect to any claim, issue or matter as to which such person shall have been adjudged to be liable to the corporation unless and only to the extent that the Court of Chancery or other adjudicating court determines that, despite the adjudication of liability but in view of all of the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery or such other court shall deem proper. The statute provides that indemnification pursuant to these provisions is not exclusive of other rights of indemnification to which a person may be entitled under any bylaw, agreement, vote of stockholders or disinterested directors or otherwise.
Our certificate of incorporation provides that the liability of directors for monetary damages shall be eliminated to the fullest extent permissible under Delaware law and the corporation is authorized to indemnify its agents to the fullest extent permissible under Delaware law.
Under our bylaws, any person who was or is made a party or is threatened to be made a party to or is in any way involved in any threatened, pending or completed action suit or proceeding, whether civil, criminal, administrative or investigative, including any appeal therefrom, by reason of the fact that he is or was a director or officer of ours or was serving at our request as a director or officer of another entity or enterprise (including any subsidiary), may be indemnified and held harmless by us, and we may advance all expenses incurred by such person in defense of any such proceeding prior to its final determination, if this person acted in good faith and in a manner reasonably believed to be in and not opposed to our best interest, and, with respect to any criminal action or proceeding, the indemnified party had no reason to believe his or her conduct was unlawful. The indemnification provided in our bylaws is not exclusive of any other rights to which those seeking indemnification may otherwise be entitled.
We have obtained a general liability insurance policy that covers certain liabilities of directors and officers of our corporation arising out of claims based on acts or omissions in their capacities as directors or officers and enter into indemnification agreements with our directors and officers.
We have entered into indemnification agreements with each of our directors and our executive officers. These agreements provide that we will indemnify each of our directors and executive officers to the fullest extent permitted by Delaware law. We will advance expenses, including attorneys’ fees, judgments, fines and settlement amounts, to each indemnified director and executive officer in connection with any proceeding in which indemnification is available, and we will indemnify our directors and officers for any action or proceeding arising out of that person’s services as an officer or director brought on behalf of the Company or in furtherance of our rights.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
See Exhibit Index immediately following the signature page.
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;
(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. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective 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) of this section do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act (15 U.S.C. 78m or 78o(d)) that are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the Securities Act, 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, each filing of the Registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) 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 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 Commission such indemnification is against public policy as expressed in the Securities Act 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 and will be governed by the final adjudication of such issue.
SIGNATURES
In accordance with 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 of filing this Registration Statement on Form S-8 and authorized this Registration Statement to be signed on its behalf by the undersigned, in Charlotte, North Carolina on July 30, 2021.
| AMERGENT HOSPITALITY GROUP INC. | |
| /s/ Michael D. Pruitt | |
| Michael D. Pruitt | |
| Chief Executive Officer |
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned officers and directors of Amergent Hospitality Group Inc. hereby constitutes and appoints Michael D. Pruitt, his attorney-in-fact and agent, with full power of substitution and resubstitution for him in any and all capacities, to sign any or all amendments or post-effective amendments to this Registration Statement, and to file the same, with exhibits thereto and other documents in connection therewith or in connection with the registration of the shares of common stock under the Securities Act of 1933, as amended, with the Securities and Exchange Commission, granting unto such attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and necessary in connection with such matters as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that such attorney-in-fact and agent or her substitute may 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 on the date indicated.
| Signature | Title | Date | ||
| /s/ Michael D. Pruitt | Chief Executive Officer | July 30, 2021 | ||
| Michael D. Pruitt |
(Principal Executive Officer), Chairman |
|||
| /s/ Steven J. Hoelscher | Chief Financial Officer | July 30, 2021 | ||
| Steven J. Hoelscher | (Principal Financial Officer) | |||
| /s/ Frederick L. Glick | Director | July 30, 2021 | ||
| Frederick L. Glick | ||||
| /s/ Neil G. Kiefer | Director | July 30, 2021 | ||
| Neil G. Kiefer | ||||
| /s/ J. Eric Wagoner | Director | July 30, 2021 | ||
| J. Eric Wagoner | ||||
|
/s/ Keith J. Johnson |
Director |
July 30, 2021 | ||
|
Keith J. Johnson
|
EXHIBIT INDEX
Exhibit 4.4
AMERGENT HOSPITALITY GROUP INC.
2021 INDUCEMENT PLAN
(as adopted by the Board of Directors on July 8, 2021 and amended on July 27, 2021)
SECTION 1. INTRODUCTION
1.1 Establishment. The purpose of this Amergent Hospitality Group Inc. 2021 Inducement Plan (the “Plan”) is to advance the interests of Amergent Hospitality Group Inc., a Delaware corporation, and its Subsidiaries (hereinafter collectively “Amergent” or the “Company”), by allowing the Company to secure and retain the services of Participant(s).
1.2 Purpose. The purpose of this Plan is to promote the best interest of the Company, and its stockholders by providing a means of non-cash remuneration to induce Participants who contribute most to the operating progress and earning power of the Company to continue in their positions with the Company.
SECTION 2. DEFINITIONS
The following definitions shall be applicable to the terms used in this Plan:
2.1 “Affiliated Corporation” means any corporation that is now or shall be during the term of this Plan either a parent corporation with respect to the Company or a subsidiary corporation with respect to the Company (within the meaning of Sections 424(e) and (f), respectively, of the Internal Revenue Code;
2.2 “Code” means the Internal Revenue Code of 1986, as it may be amended from time to time.
2.3 “Committee” means the compensation committee of the board of directors.
2.4 “Common Stock” means the Company’s common stock with par value $.0001.
2.5 “Company” means Amergent Hospitality Group Inc., a Delaware corporation, and any subsidiary or Affiliated Corporation.
2.6 “Effective Date” means the effective date of this Plan, as set forth in Section 17 hereof.
2.7 “Participant” means any employee, director, officer, consultant, or advisor of the Company who is determined (in accordance with the provisions of Section 4 hereof) to be eligible to receive an Option or Stock Award hereunder; provided however Frederick L. Glick is the only participant in this Plan.
2.8 “Option” means the grant to a Participant of a right to acquire shares of Common Stock.
2.9 “Plan” means this Stock Plan, dated July 8, 2021.
2.10 “Stock Award” means the grant to a Participant of shares of Common Stock issuable directly under this Plan rather than upon exercise of an Option.
Wherever appropriate, words used in this Plan in the singular may mean the plural, the plural may mean the singular, and the masculine may mean the feminine.
SECTION 3. ADOPTION AND ADMINISTRATION OF THIS PLAN.
Upon adoption by the Company’s board of directors, this Plan became effective as of April 26, 2019. In the absence of contrary action by the board of directors, and except for action taken by the Committee pursuant to Section 4 in connection with the determination of Participants, any action taken by the Committee or by the board of directors with respect to the implementation, interpretation or administration of this Plan shall be final, conclusive and binding.
SECTION 4. ELIGIBILITY AND AWARDS
The Committee shall determine at any time and from time to time after the effective date of this Plan: (i) the Participants; (ii) the number of shares of Common Stock issuable directly or to be granted pursuant to an Option; (iii) the price per share at which each Option may be exercised, in cash or cancellation of fees for services for which the Company is liable, if applicable, or the value per share if a direct issue of stock pursuant to a Stock Award; and (iv) the terms on which each Option may be granted. Such determination may from time to time be amended or altered at the sole discretion of the Committee. Notwithstanding the provisions of Section 3 hereof, no such determination by the Committee shall be final, conclusive and binding upon the Company unless and until the board of directors has approved the same; provided, however, that if the Committee is composed of a majority of the persons then comprising the board of directors of the Company, such approval by the board of directors shall not be necessary.
SECTION 5. GRANT OF OPTION OR STOCK AWARD
Subject to the terms and provisions of this Plan, the terms and conditions under which an Option or Stock Award may be granted to a Participant shall be set forth in a written agreement (i.e., a Consulting Agreement, Services Agreement, Fee Agreement, or Employment Agreement) and, if an Option, a written Grant of Option in the form attached hereto as Exhibit A (which may contain such modifications thereto and such other provisions as the Committee, in its sole discretion, may determine).
The Committee may grant an unrestricted Stock Award under the Plan. An unrestricted Stock Award is an Award pursuant to which the grantee may receive shares of Stock free of any restrictions under the Plan. Unrestricted Stock Awards may be granted in respect of past services or other valid consideration, or in lieu of cash compensation due to such grantee.
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SECTION 6. TOTAL NUMBER OF SHARES OF COMMON STOCK
The total number of shares of Common Stock reserved for issuance by the Company either directly Stock Awards or underlying Options granted under this Plan shall not be more than Five Hundred Thousand (500,000). Such Common Stock may be authorized and unissued or reacquired Common Stock of the Company.
SECTION 7. COST BASIS AND PURCHASE PRICE OF SHARES OF COMMON STOCK
The negotiated cost basis of stock issued directly as a Stock Award or the exercise price for each Option to purchase shares of Common Stock shall be as determined by the Committee, it being understood that the price so determined by the Committee may vary from one Participant to another. In computing the negotiated direct issue price as a Stock Award or the Option exercise price per share of Common Stock, the Committee shall take into consideration, among other factors, the restrictions set forth in Section 11 hereof.
SECTION 8. TERMS AND CONDITIONS OF OPTIONS
The Committee shall determine the terms and conditions of each Option granted to Participants, which terms shall be set forth in writing. The terms and conditions so set by the Committee may vary from one Participant to another. In the event that all the Committee approves an Option permitting deferred payments, the Participant’s obligation to pay for such Common Stock may be evidenced by a promissory note executed by such Participant and containing such modifications thereto and such other provisions as the Committee, in its sole discretion, may determine.
SECTION 9. DELIVERY OF SHARES OF COMMON STOCK
The Company shall deliver to each Participant such number of shares of Common Stock as such Participant is entitled to receive pursuant to a Stock Award or elects to purchase upon exercise of the Option. Such shares, which shall be fully paid and nonassessable upon the issuance thereof (unless a portion or all of the purchase price shall be paid on a deferred basis) shall be represented by a certificate or certificates registered in the name of the Participant and stamped with an appropriate legend referring to the restrictions thereon, if any. Subject to the terms and provisions of the Delaware General Corporation Law and the written agreement to which he is a party, an Participant shall have all the rights of a stockholder with respect to such shares, including the right to vote the shares and to receive all dividends or other distributions paid or made with respect thereto (except to the extent such Participant defaults under a promissory note, if any, evidencing the deferred purchase price for such shares), provided that such shares shall be subject to the restrictions hereinafter set forth.
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SECTION 10. RIGHTS OF EMPLOYEES; PARTICIPANTS
10.1 Employment. Nothing contained in this Plan or in any Option or Stock Award granted under this Plan shall confer upon any Participant any right with respect to the continuation of his or her employment by the Company or any Affiliated Corporation, or interfere in any way with the right of the Company or any Affiliated Corporation, subject to the terms of any separate employment agreement to the contrary, at any time to terminate such employment or to increase or decrease the compensation of the Participant from the rate in existence at the time of the grant of an Option or Stock Award. Whether an authorized leave of absence, or absence in military or government service, shall constitute termination of employment shall be determined by the Committee at the time.
10.2 Non-transferability. No right or interest of any Participant an Option or Stock Award shall be assignable or transferable during the lifetime of the Participant, either voluntarily or involuntarily, or subjected to any lien, directly or indirectly, by operation of law, or otherwise, including execution, levy, garnishment, attachment, pledge or bankruptcy. However, the board of directors may, in its sole discretion, permit transfers to family members if and to the extent such transfers are permissible under applicable securities laws. In the event of a Participant’s death, a Participant’s rights and interest in an Option or Stock Award shall be transferable by testamentary will or the laws of descent and distribution, and delivery of any shares of Common Stock due under this Plan shall be made to, and exercise of any Options may be made by, the Participant’s legal representatives, heirs or legatees. If in the opinion of the Committee a person entitled to payments or to exercise rights with respect to this Plan is unable to care for his or her affairs because of mental condition, physical condition, or age, payment due such person may be made to, and such rights shall be exercised by, such person’s guardian, conservator or other legal personal representative upon furnishing the Committee with evidence satisfactory to the Committee of such status.
SECTION 11. GENERAL RESTRICTIONS
11.1 Investment Representations. The Company may require any person to whom an Option or Stock Award is granted, as a condition of exercising such Option, or receiving such Stock Award, to give written assurances in substance and form satisfactory to the Company and its counsel to the effect that such person is acquiring the Common Stock subject to the Option or Stock Award for his or her own account for investment and not with any present intention of selling or otherwise distributing the same, and to such other effects as the Company deems necessary or appropriate in order to comply with federal and applicable state securities laws.
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11.2 Restrictions on Transfer of Common Stock. The shares of Common Stock issuable directly as a Stock Award or upon exercise of an Option may not be offered for sale, sold or otherwise transferred except pursuant to an effective registration statement or pursuant to an exemption from registration, the availability of which is to be established to the satisfaction of the Company, and any certificates representing shares of Common Stock will bear a legend to that effect. However, the Company may, in the sole discretion of the board of directors, register with the Securities and Exchange Commission some or all of the shares of Common Stock reserved for issuance under this Plan. Special resale restrictions may, however, continue to apply to officers, directors, control shareholders and affiliates of the Company and such persons will be required to obtain an opinion of counsel as regards their ability to resell shares received pursuant to this Plan.
11.3 Compliance with Securities Laws. Each Option or Stock Award shall be subject to the requirement that if at any time counsel to the Company shall determine that the listing, registration or qualification of the shares of Common Stock subject to such Option or Stock Award upon any securities exchange or under any state or federal law, or the consent or approval of any governmental or regulatory body, is necessary as a condition of, or in connection with, the issuance or purchase of shares thereunder, such Option or Stock Award may not be accepted or exercised in whole or in part unless such listing, registration, qualification, consent or approval shall have been effected or obtained on conditions acceptable to the Committee. Nothing herein shall be deemed to require the Company to apply for or to obtain such listing, registration or qualification.
SECTION 12. COMPLIANCE WITH TAX REQUIREMENTS
Each Participant shall be liable for payment of all applicable federal, state and local income taxes incurred as a result of the receipt of a Stock Award or an Option, the exercise of an Option, and the sale of any shares of Common Stock received pursuant to a Stock Award or upon exercise of an Option. The Company may be required, pursuant to applicable tax regulations, to withhold taxes for a Participant, in which case the Company’s obligations to deliver shares of Common Stock upon the exercise of any Option granted under this Plan or pursuant to any Stock Award, shall be subject to the Participant’s satisfaction of all applicable federal, state and local income and other income tax withholding requirements.
SECTION 13. PLAN BINDING UPON ASSIGNS OR TRANSFEREES
In the event that, at any time or from time to time, any Option or Stock Award is assigned or transferred to any party (other than the Company) pursuant to the provisions of Section 10.2 hereof, such party shall take such Option or Stock Award pursuant to all provisions and conditions of this Plan, and, as a condition precedent to the transfer of such interest, such party shall agree (for and on behalf of himself or itself, his or its legal representatives and his or its transferees and assigns) in writing to be bound by all provisions of this Plan.
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SECTION 14. COSTS AND EXPENSES
All costs and expenses with respect to the adoption, implementation, interpretation and administration of this Plan shall be borne by the Company.
SECTION 15. CHANGES IN CAPITALIZATION AND CERTAIN OTHER EVENTS
| (a) | Changes in Capitalization. In the event of any stock split, reverse stock split, stock dividend, recapitalization, combination of shares, reclassification of shares, spin-off or other similar change in capitalization or event, or any dividend or distribution to holders of Common Stock other than an ordinary cash dividend, the number and class of securities and exercise price per share of this option shall be equitably adjusted by the Company (or substitute options may be granted, if applicable) in the manner determined by the Committee. Without limiting the generality of the foregoing, in the event the Company effects a split of the Common Stock by means of a stock dividend and the exercise price of and the number of shares subject to this option are adjusted as of the date of the distribution of the dividend (rather than as of the record date for such dividend), then the Participant, if he exercises this option between the record date and the distribution date for such stock dividend, shall be entitled to receive, on the distribution date, the stock dividend with respect to the shares of Common Stock acquired upon such option exercise, notwithstanding the fact that such shares were not outstanding as of the close of business on the record date for such stock dividend. |
| (b) | Reorganization Events. A “Reorganization Event” shall mean: (a) any merger or consolidation of the Company with or into another entity as a result of which all of the Common Stock of the Company is converted into or exchanged for the right to receive cash, securities or other property or is cancelled, (b) any transfer or disposition of all of the Common Stock of the Company for cash, securities or other property pursuant to a share exchange or other transaction or (c) any liquidation or dissolution of the Company. |
| (c) | Consequences of a Reorganization Event. |
(1) In connection with a Reorganization Event, the board of directors may take any one or more of the following actions with respect to this option (or any portion thereof) on such terms as the board of directors determines (except to the extent specifically provided otherwise in another agreement between the Company and the Participant): (i) provide that this option shall be assumed, or a substantially equivalent option shall be substituted, by the acquiring or succeeding corporation (or an affiliate thereof), (iv) in the event of a Reorganization Event under the terms of which holders of Common Stock will receive upon consummation thereof a cash payment for each share surrendered in the Reorganization Event (the “Acquisition Price”), make or provide for a cash payment to the Participant with respect to this option equal to (A) the number of shares of Common Stock subject to the vested portion of this option (after giving effect to any acceleration of vesting that occurs upon or immediately prior to such Reorganization Event) multiplied by (B) the excess, if any, of (I) the Acquisition Price over (II) the exercise price of this option and any applicable tax withholdings, in exchange for the termination of this option, (v) provide that, in connection with a liquidation or dissolution of the Company, this option shall convert into the right to receive liquidation proceeds (if applicable, net of the exercise price hereof and any applicable tax withholdings) and (vi) any combination of the foregoing.
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(2) For purposes of Section 6(c)(1)(i), this option shall be considered assumed if, following consummation of the Reorganization Event, this option confers the right to purchase, for each share of Common Stock subject to this option immediately prior to the consummation of the Reorganization Event, the consideration (whether cash, securities or other property) received as a result of the Reorganization Event by holders of Common Stock for each share of Common Stock held immediately prior to the consummation of the Reorganization Event (and if holders were offered a choice of consideration, the type of consideration chosen by the holders of a majority of the outstanding shares of Common Stock); provided, however, that if the consideration received as a result of the Reorganization Event is not solely common stock of the acquiring or succeeding corporation (or an affiliate thereof), the Company may, with the consent of the acquiring or succeeding corporation, provide for the consideration to be received upon the exercise of this option to consist solely of such number of shares of common stock of the acquiring or succeeding corporation (or an affiliate thereof) that the board of directors determined to be equivalent in value (as of the date of such determination or another date specified by the board of directors) to the per share consideration received by holders of outstanding shares of Common Stock as a result of the Reorganization Event.
SECTION 16. PLAN AMENDMENT, MODIFICATION AND TERMINATION
The board of directors, upon recommendation of the Committee or at its own initiative, at any time may terminate and at any time and from time to time and in any respect, may amend or modify this Plan, including:
| (a) | Increase the total amount of Common Stock that may be awarded under this Plan, except as provided in Section 15 of this Plan; |
| (b) | Change the classes of persons from which Participants may be selected or materially modify the requirements as to eligibility for participation in this Plan; |
| (c) | Increase the benefits accruing to Participants; or |
| (d) | Extend the duration of this Plan. |
Any Option or other Stock Award granted to a Participant prior to the date this Plan is amended, modified or terminated will remain in effect according to its terms unless otherwise agreed upon by the Participant; provided, however, that this sentence shall not impair the right of the Committee to take whatever action it deems appropriate under Section 11 or Section 15. The termination or any modification or amendment of this Plan shall not, without the consent of a Participant, affect his rights under Option or other Stock Award previously granted to him.
SECTION 17. EFFECTIVE DATE OF THIS PLAN
17.1 Effective Date. This Plan is effective as of July 8, 2021, the date it was adopted by the board of directors of the Company.
17.2 Duration of this Plan. This Plan shall terminate at midnight on July 8, 2026, and may be extended thereafter or terminated prior thereto by action of the board of directors; and no Option or Stock Award shall be granted after such termination. Options and Stock Awards outstanding at the time of this Plan’s termination may continue to be exercised, or become free of restrictions, in accordance with their terms.
[continued on following page]
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SECTION 18. BURDEN AND BENEFIT
The terms and provisions of this Plan shall be binding upon, and shall inure to the benefit of, each Participant, his executives or administrators, heirs, and personal and legal representatives.
Dated as of the 8th day of July, 2021.
| AMERGENT HOSPIT ALITY GROUP, INC. | By: | |
| Michael D. Pruitt, CEO |
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EXHIBIT A
FORM OF
GRANT OF OPTION PURSUANT TO THE AMERGENT HOSPITALITY GROUP INC.
2021 INDUCEMENT PLAN
Amergent Hospitality Group Inc., a Delaware corporation (the “Company”), hereby grants to _________________________ (“Optionee”) an Option to purchase ___________ shares of common stock, no par value (the “Shares”) of the Company at the purchase price of $______ per share (the “Purchase Price”), in accordance with and subject to the terms and conditions of the 2021 Inducement Plan (the “Plan”).
The Grant of Option evidenced by this agreement is material to the Participant’s continued employment with the Company. This Grant of Option is further subject to the terms and conditions of that certain Employment Agreement by and between the Optionee and the Company (“Employment Agreement”).
This option is exercisable in whole or in part, and upon payment in cash or cancellation of fees, or other form of payment acceptable to the Company, to the principal place of business of the Company in Charlotte North Carolina. This Grant of Option supersedes and replaces any prior notice of option grant, description of vesting terms or similar documents previously delivered to Optionee for options granted on the date stated below.
This Grant of Option may terminate with respect to any portion of this Grant of Option that has not vested pursuant to the terms and conditions of the Employment Agreement. Subject to the foregoing, vested options must be exercised no later than the Expiration Date, set forth below.
Subject to the preceding paragraph, this Grant of Option, or any portion hereof, may be exercised only to the extent vested per the attached schedule, and must be exercised by Optionee no later than ____________________________ (the “Expiration Date”) by (i) notice in writing, signed by Optionee; and (ii) payment of the Purchase Price pursuant to the terms of this Grant of Option and the Plan. Any portion of this Grant of Option that is not exercised on or before the Expiration Date shall lapse. The notice must refer to this Grant of Option, and it must specify the number of shares being purchased, and recite the consideration being paid therefor. Notice shall be deemed given on the date on which the notice is received by the Company.
This Option shall be considered validly exercised once payment therefor has cleared the banking system or the Company has issued a credit memo for services in the appropriate amount, or receives a duly executed acceptable promissory note, if the Option is granted with deferred payment, and the Company has received written notice of such exercise. If payment is not received within two business days after the date the notice is received, the Company may deem the notice to be invalid.
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If Optionee fails to exercise this Option in accordance with this Grant of Option, then this Grant of Option shall terminate and have no force and effect, in which event the Company and Optionee shall have no liability to each other with respect to this Grant of Option.
This Option may be executed simultaneously in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
The validity, construction and enforceability of this Grant of Option shall be construed under and governed by the laws of the State of Delaware, without regard to its rules concerning conflicts of laws, and any action brought to enforce this Grant of Option or resolve any controversy, breach or disagreement relative hereto shall be brought only in a court of competent jurisdiction within the Mecklenburg County, State of North Carolina.
The shares of common stock issuable upon exercise of the Option (the “Underlying Shares”) may not be sold, exchanged, assigned, transferred or permitted to be transferred, whether voluntarily, involuntarily or by operation of law, delivered, encumbered, discounted, pledged, hypothecated or otherwise disposed of until (i) the Underlying Shares have been registered with the Securities and Exchange Commission pursuant to an effective registration statement on Form S-8, or such other form as may be appropriate, in the discretion of the Company; or (ii) an Opinion of Counsel, satisfactory to the Company, has been received, which opinion sets forth the basis and availability of any exemption for resale or transfer from federal or state securities registration requirements.
This Grant of Option relates to options granted on ____________________, 2021.
| AMERGENT HOSPITALIT Y GROUP INC. | ||
| NOT FOR EXECUTION | ||
| By: | ||
| OPTIONEE: | |
| NOT FOR EXECUTION | |
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GRANT OF OPTION PURSUANT TO THE AMERGENT
HOSPITALITY GROUP INC.
STOCK PLAN
OPTIONEE:
OPTIONS GRANTED:
PURCHASE PRICE: $______ per Share DATE OF GRANT:
EXERCISE PERIOD: __________________ to __________________
VESTING SCHEDULE:
| OPTION ON | DATE | ||
| #SHARES | VESTED | (ASSUMING CONTINUED EMPLOYMENT, ETC.) | |
EXERCISED TO DATE: ________________, INCLUDING THIS EXERCISE
BALANCE TO BE EXERCISED: _______________
NOTICE OF EXERCISE
(TO BE SIGNED ONLY UPON EXERCISE OF THE OPTION)
TO: Amergent Hospitality Group Inc. (“Optionor”)
The undersigned, the holder of the Option described above, hereby irrevocably elects to exercise the purchase rights represented by such Option for, and to purchase thereunder, _____________ shares of the Common Stock of Amergent Hospitality Group Inc., and herewith makes payment of _________________ therefor. Optionee requests that the certificates for such shares be issued in the name of Optionee and be delivered to Optionee at the address of _______________________, and if such shares shall not be all of the shares purchasable hereunder, represents that a new Notice of Exercise of like tenor for the appropriate balance of the shares, or a portion thereof, purchasable under the Grant of Option pursuant to the Stock Plan, be delivered to Optionor when and as appropriate.
| OPTIONEE: | ||||
| NOT FOR EXECUTION | ||||
| Dated: | ||||
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EXHIBIT 5.1
July 30, 2021
Amergent Hospitality Group Inc.
Re: Registration Statement on Form S-8 filed July 27, 2021
Ladies and Gentlemen:
We have examined the Registration Statement on Form S-8 (the “Registration Statement”) to be filed by Amergent Hospitality Group Inc., a Delaware corporation (“Amergent”), with the Securities and Exchange Commission on or about the date hereof, in connection with the registration under the Securities Act of 1933, as amended, of 500,000 shares of common stock reserved for issuance pursuant to the 2021 Amergent Hospitality Group Inc. Inducement Plan (which plan is referred to herein as the “Plan” and which shares of common stock are referred to herein as the “Shares”).
We have examined the originals, or photostatic or certified copies, of such records of Amergent and certificates of officers of Amergent and of public officials and such other documents as we have deemed relevant and necessary as the basis for the opinions set forth below. In our examination, we have assumed the genuineness of all signatures, the legal capacity and competency of all natural persons, the authenticity of all documents submitted to us as originals and the conformity to original documents of all documents submitted to us as copies. We have also assumed that there are no agreements or understandings between or among Amergent and any participants in the Plan that would expand, modify or otherwise affect the terms of the Plan or the respective rights or obligations of the participants thereunder. Finally, we have assumed the accuracy of all other information provided to us by Amergent during the course of our investigations, on which we have relied in issuing the opinion expressed below.
On the basis of the foregoing, and in reliance thereon, we are of the opinion that, when issued and sold in compliance with the prospectus delivery requirements and in the manner referred to in the Plan and pursuant to the agreements that accompany each grant or award under the Plan, the Shares will be legally and validly issued, fully paid and nonassessable.
We render no opinion herein as to matters involving the laws of any jurisdiction other than the Delaware General Corporation Law (the “DGCL”). We are not admitted to practice in the State of Delaware; however, we are generally familiar with the DGCL as currently in effect and have made such inquiries as we consider necessary to render the opinions above. This opinion is limited to the effect of the current state of the DGCL and the facts as they currently exist. We assume no obligation to revise or supplement this opinion in the event of future changes in such law or the interpretations thereof or such facts.
We consent to the filing of this opinion as an exhibit to the Registration Statement. In giving these consents, we do not thereby admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act or the Rules and Regulations of the Commission.
Sincerely,
| /s/ Libertas Law Group, Inc. | |
| LIBERTAS LAW GROUP, INC. |
TEL (310) 889-0699 | Fax (310) 889-0699 | LibertasLaw.com | 225 Santa monica blvd., 5th floor, santa monica, Ca 90401
EXHIBIT 23.1
Consent of Independent Registered Public Accounting Firm
To the Board of Directors
Amergent Hospitality Group, Inc.
We consent to the incorporation by reference in the foregoing Registration Statement on Form S-8 pertaining to the 2021 Amergent Hospitality Group, Inc. Inducement Plan of our report dated April 15, 2021, relating to the financial statements of Amergent Hospitality Group, Inc. as of and for the years ended December 31, 2020 and 2019 which appear in Amergent Hospitality Group Inc.’s Annual Report on Form 10-K for the year ended December 31, 2020 filed with the Securities and Exchange Commission on April 15, 2021.
| /s/ Cherry Bekaert LLP | |
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Charlotte, North Carolina |
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| July 30, 2021 |