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EXHIBIT 4.5
WARRANT AGREEMENT
AGREEMENT, made as of the 29th day of October, 1997 between
HELM CAPITAL GROUP, INC. a Delaware corporation ("Company"), and _____________
("Grantee").
WHEREAS, the Board of Directors of the Company (the "Company")
authorized the grant to the Grantee of a warrant to purchase an aggregate
of__,000 authorized but unissued shares of Common Stock of the Company, $.01 par
value (the "Common Stock"), on the terms and conditions set forth in this
Agreement as set forth below; and
WHEREAS, the Grantee desires to acquire said warrant on the terms and
conditions set forth in this Agreement;
IT IS AGREED:
1. The Company hereby grants to the Grantee the right to
purchase all or any part of an aggregate of __,000 shares of Common Stock on the
terms and conditions set forth herein (the "Warrant"). Said Warrant is not
intended to qualify under any section of the Internal Revenue Code of 1986, as
amended.
2. The purchase price of each share of Common Stock subject to
the Warrant ("Warrant Shares") shall be $1.125 per share.
3. (a) No Warrant shall be exercisable after five years from
the date of grant. The Warrant shall be one-third immediately exercisable, with
the second 1/3 exercisable after the first anniversary of the date issued and
the final 1/3 exercisable on the second anniversary of the date issued.
(b) The death or disability of the Grantee shall not affect
the Grantee's rights under this Agreement.
(c) The Warrant shall not be assignable or transferable except
in the event of the death of the Grantee, by will or by the laws of descent and
distribution. No transfer of the Warrant by the Grantee by will or by the laws
of descent and distribution shall be effective to bind the Company unless the
Company shall have been furnished with written notice thereof and a copy of the
will and such other evidence as the Company may deem necessary to establish the
validity of the transfer and the acceptance by the transferee or transferees of
the terms and conditions of the Warrant. Nothwithstanding the foregoing, the
Grantee may transfer this Warrant to a joint tenancy of which Grantee is a joint
tenant together with Grantee's spouse, children, grandchildren, or great
grandchildren.
4. The Grantee shall not have any of the rights of a
stockholder with respect to the Warrant Shares until such shares have been
issued after the due exercise of the Warrant.
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5. In the event of a reorganization, recapitalization,
reclassification, stock split or exchange, stock dividend, combination of
shares, or any other similar change in Common Stock of the Company, the Board of
Directors of the Company may, in its sole discretion, make such equitable,
proportionate adjustment, if any, as it deems appropriate in the number and kind
of shares covered by this Warrant and in the warrant price hereunder, in order
to preserve the Grantee's proportionate interest in the Company and to maintain
the aggregate warrant price; provided, however, that upon the dissolution or
liquidation of the Company, or upon any merger, consolidation or other form of
reorganization in which the Company is not the surviving entity, or upon the
sale of all or substantially all of the Company's assets, the Warrant may be
terminated by the Company or its successor or be of no further effect provided
that (a) the Company shall have given notice of such intended termination to the
Grantee at least thirty (30) days prior to the date fixed as a record date for
the determination of the stockholders of the Company entitled to participate in
the dividends or other distributions with respect to the Common Stock, or the
exchange or conversion of shares of Common Stock, as the case may be, associated
with any such dissolution, liquidation, merger, consolidation, reorganization or
sale of all or substantially all of the Company's assets, and (b) the date
selected by the Company as the termination date shall not be prior to such
record date.
6. The Company hereby represents and warrants to the Grantee that the
Warrant Shares, when issued and delivered by the Company to the Grantee in
accordance with the terms and conditions hereof, will be duly and validly issued
and fully paid and nonassessable.
7. The Grantee hereby represents and warrants to the Company that he is
acquiring the Warrant and shall acquire the Warrant Shares for his own account
and not with a view to the distribution thereof.
8. Anything in this Agreement to the contrary notwithstanding, the
Grantee hereby agrees that he shall not sell, transfer by any means or otherwise
dispose of the Warrant Shares acquired by him without registration under the
Act, or in the event that they are not so registered, unless (a) an exemption
from the Securities Act of 1933, as amended, (the "Act"), is available
thereunder, and (b) the Grantee has furnished the Company with notice of such
proposed transfer and the Company's legal counsel, in its reasonable opinion,
shall deem such proposed transfer to be so exempt.
9. The Grantee hereby acknowledges that: (a) If he exercised the
Warrant, he must bear the economic risk of the investment in the Warrant Shares
for an indefinite period of time because the Warrant Shares will not have been
registered under the Act and cannot be sold by him unless they are registered
under the Act or an exemption therefrom is available thereunder.
(b) In his position as a director of the Company, he has had
both the opportunity to ask questions of and receive answers from the officers
and directors of the Company and all persons acting on its behalf concerning the
terms and conditions of the offer made hereunder and to
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obtain any additional information to the extent the Company possesses or may
possess such information or can acquire it without unreasonable effort or
expense necessary to verify the accuracy of the information.
(c) The Company shall place stop transfer orders with its
transfer agent against the transfer of the Warrant Shares in the absence of
registration under the Act or an exemption therefrom, and the certificate
evidencing the Warrant Shares shall be
legended appropriately.
10. Subject to the terms and conditions of the Agreement, the Warrant
may be exercised by written notice to the Company at its principal place of
business. Such notice shall state the election to exercise the Warrant and the
number of Warrant Shares in respect to which it is being exercised, shall
contain a representation and agreement by the person or persons so exercising
the Warrant that the Warrant Shares are being purchased for investment and not
with view to the distribution or resale thereof, and shall be signed by the
person or persons so exercising the warrant. Such notice shall be accompanied by
payment of the full purchase price of the Warrant Shares. Payment of the
purchase price shall be made in cash or by check, bank draft or money order
payable to the order of the Company. The Company shall issued a certificate or
certificates evidencing the Warrant Shares as soon as practicable after the
notice and payment is received. The certificate or certificates evidencing the
Warrant Shares shall be registered in the name of the person or persons so
exercising the Warrant.
11. All notices, requests, deliveries, payments, demands and other
communications which are required or permitted to be given under this Agreement
shall be in writing and shall either be delivered personally or sent by
certified mail, return receipt requested, postage prepaid, to the parties at
their respective addresses set forth below, or to such other address as either
shall have specified by notice in the writing to the other, and shall be deemed
duly given hereunder when so delivered or mailed, as the case may be.
12. The waiver by any party hereto of a breach of any provision of this
Agreement shall not operate or be construed as a waiver of any other or
subsequent breach.
13. This Agreement constitutes the entire agreement between the parties
with respect to the subject matter thereof.
14. This Agreement shall inure to the benefit of and be binding upon
the parties hereto and to the extent not prohibited herein, their respective
heirs, successors, assigns and representatives. Nothing in this Agreement,
expressed or implied, is intended to confer on any person other than the parties
hereto and as provided above, their respective heirs, successors, assigns and
representatives, any rights, remedies, obligations or liabilities.
15. This Agreement shall be governed by and construed in accordance
with the laws of the State of Connecticut.
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IN WITNESS WHEREOF, parties hereto have signed this Agreement as
of the 29th day of October, 1997.
HELM CAPITAL GROUP, INC. GRANTEE
By:____________________
Xxxxxxx X. Xxxxxxxx
President
