As
filed
with the U.S. Securities and Exchange Commission on May 31, 2006
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
DC 20549
FORM
S-8
Registration
Statement
Under
the
Securities Act of 1933
EMERGE
CAPITAL CORP.
(Exact
Name of Registrant as Specified in its Charter)
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DELAWARE
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22-3387630
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(State
or jurisdiction of
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(I.R.S.
Employer
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incorporation
or organization)
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Identification
No.)
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109
North Post Oak Lane
Suite
422
Houston,
Texas 77024
(713)
621-2737
(Address,
including zip code, and telephone number,
including
area code, of Registrant’s principal executive offices)
EMERGE
CAPITAL CORP. 2005 STOCK INCENTIVE PLAN
(Full
Title of the Plan)
Timothy
J. Connolly, Chief Executive Officer
109
North Post Oak Lane
Suite
422
Houston,
Texas 77024
(713)
621-2737
(Name,
address, including zip code, and telephone number,
including
area code, of agent for service)
With
copies to:
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Clayton
E. Parker, Esq.
Matthew
L. Ogurick, Esq.
Kirkpatrick
& Lockhart Nicholson Graham LLP
201
South Biscayne Boulevard, Suite 2000
Miami,
Florida 33131
Telephone:
(305) 539-3300
Telecopier:
(305) 358-7095
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CALCULATION
OF REGISTRATION FEE
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Proposed
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Proposed
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Maximum
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Maximum
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Amount
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Offering
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Aggregate
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Amount
of
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Title
of Securities
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To
be
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Price
per
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Offering
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Registration
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to
be Registered
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Registered
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Share (1)
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Price(1)
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Fee(1)
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Common
Stock, $0.001
par value
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10,000,000
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$0.08
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$800,000
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$85.60
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Total
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10,000,000
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$0.08
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$800,000
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$85.60
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(1)
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Pursuant
to Rule 457(h)(1) of the Securities Exchange Act of 1934, as amended,
the
proposed maximum offering price per share, proposed maximum aggregate
offering price and amount of registration fee were computed based
upon the
average of the high and low prices of the shares of Emerge Capital
Corp.’s
common stock on May 19, 2006.
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PART
I
The
documents containing the information specified in Part I of Form S-8 (Plan
Information (Item 1) and Registrant Information and Employee Plan Annual
Termination (Item 2)) will be sent or given to employees as specified by
Rule 428(b)(1) of the Securities Act of 1933, as amended (the “Securities
Act”). Such documents need not be filed with the U.S. Securities and
Exchange Commission (the “SEC”) either as part of this registration
statement (this “Registration Statement”) or as prospectuses or prospectus
supplements pursuant to Rule 424. These documents, which include the statement
of availability required by Item 2 of Form S-8, and the documents incorporated
by reference in this Registration Statement pursuant to Item 3 of
Form S-8 (Part II hereof), taken together, constitute a prospectus
that meets the requirements of Section 10(a) of the Securities Act.
PART
II
Item
3. Incorporation
Of Documents By Reference
The
following documents have been previously filed by Emerge Capital Corp. (the
“Company”) with the SEC and are hereby incorporated by reference into this
Registration Statement as of their respective dates:
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(a)
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The
Annual Report of the Company on Form 10-KSB for the year ended December
31, 2005, as filed with SEC on April 17,
2006.
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(b)
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The
Quarterly Report of the Company on Form 10-QSB for the three (3)
month
period ending March 31, 2006, as filed with the SEC on May 22,
2006.
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(c)
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All
other reports filed pursuant to Section 13(a) or 15(d) of the Exchange
Act
of 1934, as amended (the “Exchange Act”), since the end of the fiscal
year covered by the document referred to in (a)
above.
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Any
statement contained 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 subsequently filed document which also is or is deemed to be incorporated
by reference herein modifies or supersedes such statement. Any such statement
so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this Registration Statement.
All
documents subsequently filed by the Company with the SEC pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act after the date of this
Registration Statement, but prior to the filing of a post-effective amendment
to
this Registration Statement that indicates that all securities offered by this
Registration Statement have been sold or which deregisters all such securities
then remaining unsold, shall be deemed to be incorporated by reference into
this
Registration Statement from the date of the filing of such document with the
SEC
until the information contained therein is superseded or updated by any
subsequently filed document that is incorporated by reference into this
Registration Statement or by any document that constitutes part of the
prospectus relating to the consulting agreements that meets the requirements
of
Section 10(a) of the Securities Act.
Item
4. Description
Of Securities
The
current authorized capital stock of our Company consists of Nine Hundred
Million (900,000,000) shares of common stock, par value $0.001 per share,
and Two Million (2,000,000) shares of preferred stock, par value $0.01 per
share. As of May 19, 2006, 23,835,816 shares of common stock, zero (0)
shares of Series A preferred stock, One Hundred Thousand (100,000) shares
of Series B preferred stock and Two Hundred Fifty-Four (254) shares of
Series C preferred stock were issued and outstanding. The following
description is a summary of the capital stock of our Company and contains the
material terms of our voting capital stock. Additional information can be found
in our Certificate of Incorporation (as amended) and our
Bylaws.
Common
Stock
On
May 19, 2006, there were 23,835,816 shares of common stock issued and
outstanding. Each share of common stock entitles the holder to one (1) vote
on each matter submitted to a vote of our shareholders, including the election
of directors. There is no cumulative voting. Subject to preferences that may
be
applicable to any outstanding preferred stock, our shareholders are entitled
to
receive ratably such dividends, if any, as may be declared from time to time
by
the Board of Directors. Shareholders have no preemptive, conversion or other
subscription rights. There are no redemption or sinking fund provisions related
to the common stock. In the event of liquidation, dissolution or winding up
of
the Company, our shareholders are entitled to share ratably in all assets
remaining after payment of liabilities, subject to prior distribution rights
of
preferred stock, if any, then outstanding.
Preferred
Stock
The
Company is authorized to issue Two Million (2,000,000) shares of preferred
stock, of which One Hundred Thousand (100,000) shares of Series B preferred
stock and Two Hundred Fifty-Four (254) shares of Series C preferred stock
were issued and outstanding as of May 19, 2006. There were zero (0) shares
of Series A preferred stock outstanding as of May 19, 2006. As a class, the
holders of the Company’s Series B preferred shall, collectively, be
entitled to cast a number of votes equal ninety-five percent (95%) of the
total issued and outstanding voting stock of the Company on all matters
submitted to the shareholders for approval, which votes shall be distributed
among the holders of Series B preferred on a pro rata basis based upon the
number of shares of Series B preferred held by such respective holders. The
holders of shares of the Series B preferred shall be entitled to vote on
all matters on which the common stock shall be entitled to vote. Holders of
Series B preferred shall be entitled to notice of any shareholders meeting
in accordance with the Bylaws of the Company. With respect to the payment of
dividends and other distributions on the capital stock of the Company, including
the distribution of the assets of the Company upon liquidation, the Series
B
preferred stock shall rank pari passu with the common stock of the Company
on an
as converted basis, and junior to all other series of preferred stock.
Fractional votes shall not, however, be permitted and any fractional voting
rights resulting from the above formula (after aggregating all shares into
which shares of Series B preferred held by each holder could be converted),
shall be disregarded.
The
Series C preferred shares have no voting rights.
Options
No
options remain outstanding as of May 19, 2006.
Warrants
At
May
19, 2006, warrants were outstanding to purchase 200,000 shares of the Company's
common stock for $1.00 per share. The warrants were issued to two (2) former
officers of the Company for prior services rendered to the Company and are
exercisable over a five (5) year period which expires in September
2008.
Dividends
The
Company has not declared or paid cash dividends on its common stock since its
inception and does not anticipate paying such dividends in the foreseeable
future. The payment of dividends may be made at the discretion of the Board
of
Directors at that time and will depend upon, among other factors, on the
Company’s operations.
Convertible
Debentures
Cornell
Capital May 6,
2004 Convertible Debenture
On
May 6,
2004, Corporate Strategies, Inc., the wholly-owned and chief operating
subsidiary of the Company (“CSI”), entered into a Secured Debenture Agreement
with Cornell Capital Partners, LP (“Cornell Capital”), pursuant to which CSI
sold $400,000 of convertible notes due May 5, 2007 (the “May Notes”). The May
Notes bear interest at five percent (5%), which is accrued until maturity
on May
6, 2007. The May Notes are convertible, at the option of the holder, into
common
stock of CSI at a price of $0.18 per share, subject to an ownership limitation
of 4.99% of the outstanding stock of CSI, standard anti-dilution provisions
relating to splits, reverse splits and other transactions plus a reset provision
whereby the conversion price may be adjusted downward to a lower price per
share
based on eighty percent (80%) of the lowest closing bid price for the five
(5)
trading days prior to conversion. CSI has the right to repurchase the May
Notes
at one hundred twenty percent (120%) of the face amount.
Cornell
Capital June 24, 2004 Convertible Debenture
On
June
24, 2004, CSI entered into a Secured Debenture Agreement with iVoice, Inc.
(“iVoice”) pursuant to which CSI sold $500,000 of convertible notes due June 24,
2007 (the “May II Notes”). The May II Notes were subsequently assigned to
Cornell Capital. The May II Notes bear interest at five percent (5%), which
is
accrued until maturity on June 24, 2007. The May II Notes are convertible,
at
the option of the holder, into common stock of CSI at a price of $0.114 per
share, subject to an ownership limitation of 4.99% of the outstanding stock
of
CSI, standard anti-dilution provisions relating to splits, reverse splits
and
other transactions plus a reset provision whereby the conversion price may
be
adjusted downward to a lower price per share based on eighty percent (80%)
of
the lowest closing bid price for the five (5) trading days prior to conversion.
CSI has the right to repurchase the May II Notes at one hundred twenty percent
(120%) of the face amount.
Cornell
Capital September 28, 2004 Convertible Debenture
On
September 28, 2004, CSI entered into a Secured Debenture Agreement with Cornell
Capital pursuant to which CSI sold $400,000 of convertible notes due September
28, 2007 (the “September Notes”). The September Notes bear interest at five
percent (5%), which is accrued until maturity on September 28, 2007. The
September Notes are convertible, at the option of the holder, into common
stock
of CSI at a price of $0.084 per share, subject to an ownership limitation
of
4.99% of the outstanding stock of CSI, standard anti-dilution provisions
relating to splits, reverse splits and other transactions plus a reset provision
whereby the conversion price may be adjusted downward to a lower price per
share
based on eighty percent (80%) of the lowest closing bid price for the five
(5)
trading days prior to conversion. CSI has the right to repurchase the September
Notes at one hundred twenty percent (120%) of the face amount.
Cornell
Capital April 6, 2005 Convertible Debenture
On
April
6, 2005, CSI entered into a Secured Debenture Agreement with Cornell Capital
pursuant to which the Company sold $400,000 of convertible notes due April
6,
2008 (the “April Notes”). The April Notes bear interest at five percent (5%),
which is accrued until maturity on April 6, 2008. The April Notes are
convertible, at the option of the holder, into common stock of CSI at a price
of
$0.108 per share, subject to an ownership limitation of 4.99% of the outstanding
stock of CSI, standard anti-dilution provisions relating to splits, reverse
splits and other transactions plus a reset provision whereby the conversion
price may be adjusted downward to a lower price per share based on eighty
percent (80%) of the lowest closing bid price for the five (5) trading days
prior to conversion. CSI has the right to repurchase the April Notes at one
hundred twenty percent (120%) of the face amount.
Holland
December 8,
2003 Secured Convertible Debentures
On
December 8, 2003, the Company entered into a Secured Debenture Agreement
with
five investors (Holland et.
al)
pursuant to which the Company sold $135,000 of five percent (5%) convertible
notes due December 8, 2005 (the “December Notes”). The December Notes bear
interest at five percent (5%), which is accrued until maturity on December
8,
2005. The December Notes are convertible, at the option of the holder, into
common stock of the Company at a price of $0.216 per share, subject to standard
anti-dilution provisions relating to splits, reverse splits and other
transactions plus a reset provision whereby the conversion price may be adjusted
downward to a lower price per share based on eighty percent (80%) of the
lowest
daily volume weighted average price (“VWAP”) for the five (5) trading days prior
to conversion. The holder has the right to cause the December Notes to be
converted into common stock of the Company. The Company has the right to
repurchase the December Notes at one hundred ten percent (110%) of the face
amount. The December Notes are unsecured general obligations of the Company
and
are subordinated to all other indebtedness of the Company unless other
indebtedness is expressly made subordinate to the December Notes. The December
Notes were amended on November 30, 2005 to defer the maturity date to
January 31, 2007.
Holland
December 22, 2003 Secured Convertible Debentures
On
December 22, 2003, the Company entered into a Secured Debenture Agreement
with
two (2) investors (Holland et.
al)
pursuant to which the Company sold $250,000 of convertible notes due December
22, 2005 (the “December II Notes”). The December II Notes bear interest at five
percent (5%), which is accrued until maturity on December 22, 2005. The December
II Notes are convertible, at the option of the holders, into common stock
of the
Company at a price of $0.168 per share, subject to standard anti-dilution
provisions relating to splits, reverse splits and other transactions plus
a
reset provision whereby the conversion price may be adjusted downward to
a lower
price per share based on eighty percent (80%) of the VWAP for the five (5)
trading days prior to conversion. The holder has the right to cause the December
II Notes to be converted into common stock. The Company has the right to
repurchase the December II Notes at one hundred ten percent (110%) of the
face
amount. The December II Notes are unsecured general obligations of the Company
and are subordinated to all other indebtedness of the Company unless other
indebtedness is expressly made subordinate to the December II Notes The December
II Notes were amended on November 30, 2005 to defer the maturity date to
January
31, 2007. As of the date of the Registration Statement, one (1) holder has
converted $54,000 of the principal amount of these December II Notes into
shares
of the Company’s common
stock.
Saporito
Convertible Debenture
On
January 29, 2004, the Company entered into a Secured Debenture Agreement
with
Joanna Saporito pursuant to which the Company sold $100,000 of convertible
notes
due January 29, 2006 (the “January Notes”). The January Notes bear interest at
five percent (5%) which is accrued until maturity on January 29, 2006. The
January Notes are convertible, at the option of the holder, into common stock
of
the Company at a price of $0.156 per share, subject to standard anti-dilution
provisions relating to splits, reverse splits and other transactions plus
a
reset provision whereby the conversion price may be adjusted downward to
a lower
price per share based on eighty percent (80%) of the VWAP for the five (5)
trading days prior to conversion. The holder has the right to cause the January
Notes to be converted into common stock of the Company. The Company has the
right to repurchase the January Notes at one hundred ten percent (110%) of
the
face amount. The January Notes are unsecured general obligations of the Company
and are subordinated to all other indebtedness of the Company unless other
indebtedness is expressly made subordinate to the January Notes. The January
Notes were amended on November 30, 2005 to defer the maturity date to January
31, 2007.
Viola
Convertible Debenture
On
October 12, 2004, the Company entered into a Secured Debenture Agreement
with
Mary-Ellen Viola pursuant to which the Company sold $100,000 of convertible
notes due October 12, 2006 (the “October Notes”). The October Notes bear
interest at five percent (5%), which is accrued until maturity on October
12,
2006. The October Notes are convertible, at the option of the holder, into
common stock of the Company at a price of $0.078 per share, subject to an
ownership limitation of 9.99% of the outstanding stock of the Company, standard
anti-dilution provisions relating to splits, reverse splits and other
transactions plus a reset provision whereby the conversion price may be adjusted
downward to a lower price per share based on eighty percent (80%) of the
VWAP
for the five (5) trading days prior to conversion. The Company has the right
to
repurchase the October Notes at one hundred ten percent (110%) of the face
amount.
Anti-Takeover
Effects of Provisions of the Certificate of Incorporation (As Amended),
Bylaws and Delaware Law
Authorized
and Unissued Stock
The
authorized but unissued shares of our common stock and preferred stock are
available for future issuance without the approval of the shareholders. These
additional shares may be utilized for a variety of corporate purposes including
but not limited to future public or direct offerings to raise additional
capital, corporate acquisitions and employee incentive plans. The issuance
of
such shares may also be used to deter a potential takeover of the Company that
may otherwise be beneficial to our shareholders by diluting the shares held
by a
potential suitor or issuing shares to a shareholder that will vote in accordance
with the desires of the Board of Directors. A takeover may be beneficial to
shareholders because, among other reasons, a potential suitor may offer
shareholders a premium for their shares of stock compared to the then-existing
market price.
Transfer
Agent and
Registrar
American
Stock Transfer & Trust Co. is the transfer agent and registrar of our common
stock. Their address is 59 Maiden Lane, Plaza Level, New York, New York 10038,
and their telephone number is (718) 921-8293.
Item
5. Interests
Of Named Experts And Counsel
Not
applicable.
Item
6. Indemnification
Of Directors And Officers
Section
SEVENTH of the Company’s Certificate of Incorporation states that the Company
shall, to the fullest extent permitted by the provisions of Section 145 of
the
Delaware General Corporation Law, as the same may be amended and supplemented,
indemnify any and all persons whom it shall have power to indemnify under said
section from and against any and all of the expenses, liabilities, or other
matters referred to in or covered by said section, and the indemnification
provided for in the Certificate of Incorporation shall not be deemed exclusive
of any other rights to which those indemnified may be entitled under any bylaw,
agreement, vote of stockholders or disinterested directors or otherwise, both
as
to action in his official capacity and as to action in another capacity while
holding such office, and shall continue as to a person who has ceased to be
a
director, officer, employee or agent and shall inure to the benefit of the
heirs
executors and administrators of such a person.
The
Company’s Bylaws are silent with respect to the indemnification of directors and
officers.
Item
7. Exemption From Registration Claimed
Not
Applicable.
Item
8. Exhibits
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Exhibit
No.
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Description
of Exhibit
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Location
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4.1
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Emerge
Capital Corp. 2005 Stock Incentive Plan
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Provided
herewith
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5.1
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Opinion
re: Legality of Kirkpatrick & Lockhart Nicholson Graham LLP
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Provided
herewith
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23.1
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Consent
of Thomas Leger & Co., L.L.P.
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Provided
herewith
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23.2
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Consent
of Kirkpatrick & Lockhart Nicholson Graham LLP
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Incorporated
by reference to Exhibit 5.1 herein
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Item
9. Undertakings
(a) We
hereby
undertake:
(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 this Registration Statement (or the most recent post-effective amendment
hereof) which, individually or in the aggregate, represent a fundamental change
in the information set forth in this 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 and high end of the estimated maximum
offering range may be reflected in the form of prospectus filed with the SEC
pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price
represent no more than a twenty percent (20%) change in the maximum
aggregate offering price set forth in the “Calculation of Registration Fee”
table in the effective Registration Statement; and
(iii) To
include any material information with respect to the plan of distribution not
previously disclosed in this Registration Statement or any material change
to
such information in this 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 by our Company pursuant to
Section 13 or 15(d) of the Securities Act that are incorporated by reference
in
this 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 the 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) We
hereby
undertake that, for purposes of determining any liability under the Securities
Act, each filing of our Annual Report pursuant to Section 13(a) or 15(d) of
the
Securities Act that is incorporated by reference in this Registration Statement
shall be deemed to be a new registration statement relating to the securities
offered herein, 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 persons controlling our company pursuant
to
the foregoing provisions, or otherwise, we have been advised that in the opinion
of the SEC 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 our company
of expenses incurred or paid by a director, officer or controlling person of
our
company 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, our Company will, unless in the opinion of our
counsel the matter has been settled by controlling precedent, submit to a court
of appropriate jurisdiction the question whether such indemnification by us
is
against public policy as expressed in the Securities Act and will be governed
by
the final adjudication of such issue.
SIGNATURES
Pursuant
to the requirements of the Securities Act, the Company 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 State of Texas,
on
May 31, 2006.
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Emerge
Capital Corp. |
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Date:
May
31, 2006
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By: |
/s/
Timothy J. Connolly
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Timothy
J. Connolly
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Chief
Executive Officer
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Date: May
31, 2006
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By:
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/s/
A. P. Shukis
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A.
P. Shukis
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Principal
Financial Officer
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Pursuant
to the requirements of the Securities Act, this Registration Statement on Form
S-8 has been signed by the following persons in the capacities and on the dates
indicated below:
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Signatures
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Title
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Date
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/s/
Fred Zeidman
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Chairman
of the Board
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May
31, 2006
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Fred
Zeidman
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/s/
Timothy J. Connolly
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Vice
Chairman of the Board
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May
31, 2006
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Timothy
J. Connolly
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