AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 15, 1999
REGISTRATION NO. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
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HELMSTAR GROUP, INC.
(Exact Name of Registrant as Specified in Its Charter)
Delaware 13-2689850
(State or Other Jurisdiction (I.R.S. Employer
of Incorporation or Identification
Organization) Number)
2 World Trade Center, Suite 2112
New York, New York 10048
(212) 775-0400
(Address, Including Zip Code, and Telephone Number,
Including Area Code, of Registrant's Executive Offices)
-----------------------------
Helmstar Group, Inc. 1990 Incentive Compensation Plan
Helmstar Group, Inc. 1999 Stock Option Plan
George W. Benoit
Helmstar Group, Inc.
2 World Trade Center, Suite 2112
New York, New York 10048
(212) 775-0400
(Name, Address, Including Zip Code, and Telephone Number,
Including Area Code, of Agent for Service)
Please send copies of all correspondence to:
George Lander, Esq.
Morse, Zelnick, Rose & Lander, LLP
450 Park Avenue
New York, New York 10022-2605
Telephone No. (212) 838-4175
Fax No. (212) 838-9190
--------------------
<PAGE>
<TABLE>
<CAPTION>
=================================================================================================================
Proposed Proposed
Maximum Maximum Amount of
Title of Securities Amount to be Offering Price Aggregate Registration
to be Registered Registered (1) per Share Offering Price Fee
- -----------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock (par
value $.10 per
share) issued
pursuant to exercise
of options granted
under the 1990
Incentive
Compensation Plan,
as amended (the
"1990 Plan") 560,000 $2.02 (2) $1,131,200 (2) $314.47
- -----------------------------------------------------------------------------------------------------------------
Common Stock (par
value $.10 per
share) issuable
pursuant to options
that may be granted
under the 1999 Stock
Option Plan (the
"1999 Plan") (3) \ 350,000 $6.00 $2,100,000 $583.80
- -----------------------------------------------------------------------------------------------------------------
Total 910,000 $3,231,200 $898.27
=================================================================================================================
</TABLE>
(1) Pursuant to Rule 416 under the Securities Act of 1933, as amended,
this Registration Statement also covers an indeterminate number of additional
shares or rights which by reason of certain events specified in the 1990
Incentive Compensation Plan, as amended, and the 1999 Stock Option Plan
(collectively, the "Plans") become subject to the Plans.
(2) Estimated in accordance with Rule 457(h) solely for the purpose of
calculating the registration fee on the basis of the weighted average exercise
price of $2.02 per share for outstanding options to purchase a total of 560,000
shares of Common Stock.
(3) Calculated in accordance with Rule 457(c) and Rule 457(h), the
proposed maximum offering price per share, proposed maximum aggregate offering
price and the amount of the registration fee are based upon the average of the
high and low sales prices reported on the American Stock Exchange on October 11,
1999, with respect to shares available for grant under the 1999 Plan.
<PAGE>
HELMSTAR GROUP, INC.
REGISTRATION STATEMENT ON FORM S-8
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information specified in this Part I (plan
information and registrant information) 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 Securities and
Exchange Commission either as part of this registration statement or as
prospectuses or prospectus supplements pursuant to Rule 424 of the Securities
Act. These documents and the documents incorporated by reference in this
registration statement pursuant to Item 3 of Part II of this form, taken
together, constitute a prospectus that meets the requirements of Section 10(a)
of the Securities Act.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents filed by the Company with the Commission pursuant to the
Securities Exchange Act of 1934 (the "Exchange Act") are incorporated in this
Prospectus by reference:
(1) Annual Report on Form 10-KSB for the fiscal year ended December 31,
1998;
(2) Quarterly Report on Form 10-QSB for the quarter ended March 31, 1999;
(3) Quarterly Report on Form 10-QSB for the quarter ended June 30, 1999;
and
(4) The description of the Company's Common Stock, contained in the
Company's Registration Statement on Form 8-A registering such shares
pursuant to Section 12 of the Exchange Act, including any amendment or
report updating such information.
Each document filed subsequent to the date of this registration statement
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the
filing of a post-effective amendment which indicates that all securities offered
have been sold or which deregisters all securities then remaining unsold shall
be deemed to be incorporated by reference in this registration statement and to
be a part hereof from the date of the filing of such documents. Any statement
contained in a document incorporated or deemed to be incorporated herein by
reference 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 statement.
The Company will provide without charge to each person, including any
beneficial owner, to whom a copy of this registration statement is delivered,
upon the written or oral request of any such person, a copy of any document
incorporated by reference in this registration statement (other than exhibits
unless such exhibits are specifically incorporated by reference in such
documents). Requests should be directed to Helmstar Group, Inc., 2 World Trade
Center, Suite 2112, New York, New York 10048, (212) 775-0400, Attention: George
W. Benoit, President.
Item 4. Description of Securities
Not applicable.
<PAGE>
Item 5. Interests of Named Experts and Counsel
Not applicable.
Item 6. Indemnification of Directors and Officers
Sections 145 of the Delaware General Corporation Law grants to the
Company the power to indemnify the officers and directors of the Company, under
certain circumstances and subject to certain conditions and limitations as
stated therein, against all expenses and liabilities incurred by or imposed upon
them as a result of suits brought against them as such officers and directors if
they act in good faith and in a manner they reasonably believe to be in or not
opposed to the best interests of the Company and, with respect to any criminal
action or proceeding, have no reasonable cause to believe their conduct was
unlawful.
The Company's certificate of incorporation provides as follows:
"TENTH: A director of the Corporation shall not be personally liable to
the Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, except for liability (i) for any breach of the director's
duty of loyalty to the Corporation or its stockholders, (ii) for acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law, (iii) under Section 174 of the Delaware General Corporation
Law, or (iv) for any transaction from which the director derived an improper
personal benefit."
Item 7. Exemption From Registration Claimed
Not Applicable
<PAGE>
Item 8. Index to Exhibits
Certain of the following exhibits, as indicated parenthetically, were previously
filed as exhibits to other reports or registration statements filed by the
Registrant under the Securities Act or under the Exchange Act and are hereby
incorporated by reference.
<TABLE>
<CAPTION>
Exhibit No. Description
<S> <C>
4.1 Restated Certificate of Incorporation of the Registrant filed on July 31, 1987
and amendments thereto filed on June 8, 1989, September 14, 1990 and December
2, 1991. Certificate of change of location of registered office and of
registered agent filed on May 7, 1992. (Incorporated by reference to the
Registrant's Annual Report on Form 10-KSB for the year ended December 31,
1997.)
4.2 Amended and Restated By-Laws of the Registrant. (Incorporated by reference to
the Registrant's Annual Report on Form 10-KSB for the year ended December 31,
1995.)
4.3 1990 Incentive Compensation Plan (Incorporated by reference to the Registrant's
Annual Report on Form 10-KSB for the year ended December 31, 1995)
4.4 Amendment to the 1990 Incentive Compensation Plan (Incorporated by reference
to the Registrant's Annual Report on Form 10-KSB for the year ended December
31, 1996)
4.5 1999 Stock Option Plan
4.6 Form of Stock Option Agreement
5.1 Opinion of Morse, Zelnick, Rose & Lander, LLP as to legality of the securities
being registered
23.1 Consent of Richard A. Eisner & Company, LLP (independent public accountants)
23.2 Consent of Morse, Zelnick, Rose & Lander, LLP (included in Exhibit 5.1)
24 Power of Attorney (included in signature page)
</TABLE>
<PAGE>
Item 9. Undertakings
The undersigned hereby undertakes:
(a) To file, during any period in which it offers or sales are
being made, a post-effective amendment to this Registration
Statement:
(i) To include any prospectus required by Section10(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 thereof) which, individually or in the
aggregate, represent a fundamental change in the
information set forth in this Registration Statement;
(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 paragraph (i) and (ii) do not apply if the
information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed with or
furnished to the Commission by the Company pursuant to Section 13 or
Section 15(d) of the Exchange Act that are incorporated by reference in
this Registration Statement.
(b) 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.
(c) 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.
(d) That, for the purpose of determining any liability under the
Securities Act, each filing of the Company's annual report
pursuant to Section 13(a) or Section 15(d) of the Exchange Act
that is incorporated by reference in this 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.
Insofar as indemnification for liabilities arising under the Securities Act may
be permitted to directors, officers and controlling persons of the Company
pursuant to the provisions described in Item 6 of this Registration Statement,
or otherwise, the Company 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 Company of expenses
incurred or paid by a director, officer or controlling person of the 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, the Company 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.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant certifies that it has reasonable grounds to believe that it meets all
the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized in the City of New York, State of New York on this 14th day of
October, 1999.
HELMSTAR GROUP, INC.
By: /s/ George W. Benoit
---------------------
George W. Benoit,
President and Chief Executive Officer
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below
constitutes and appoints George W. Benoit, Kevin J. Benoit, or either one of
them, his true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign any and all pre-or post-effective amendments to
this Registration Statement, and to file the same with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys in-fact and agents, and each of them,
full power and authority to do and perform each and every act and thing
requisite or necessary to be done in and about the premises, as fully to all
intents and purposes as he might not could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or either of them, or
their or his substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this registration statement has been signed below by the following persons in
the capacities indicated on October 14, 1999.
Signatures Title
- ---------- -----
/s/ George W. Benoit President, Chief Executive
- ---------------------------- Officer and Director
George W. Benoit
/s/ Anthony S. Conigliaro Chief Financial Officer
- ----------------------------
Anthony s. Conigliaro
/s/ Charles W. Currie Director
- ----------------------------
Charles W. Currie
/s/ David W. Dube Director
- ----------------------------
David W. Dube
/s/ Kevin J. Benoit Director
- ----------------------------
Kevin J. Benoit
/s/ Joseph G. Anastasi Director
- ----------------------------
Joseph G. Anastasi
/s/ James J. Murtha Director
- ----------------------------
James J. Murtha
EXHIBIT 4.5
HELMSTAR GROUP, INC.
1999 STOCK OPTION PLAN
1. PURPOSES. The purposes of the 1999 Stock Option Plan (the "Plan") are to
attract and retain qualified personnel for positions of substantial
responsibility, to provide additional incentive to the Employees of the Company
or its Subsidiaries (as defined below), as well as other individuals who perform
services for the Company or its Subsidiaries, and to promote the success of the
Company's business. The provisions of the Plan are intended to satisfy the
requirements of Section 16(b) of the Exchange Act (as defined below) and Section
162(m) of the Code (as defined below).
Options granted hereunder may be either "incentive stock options", as
defined in Section 422 of the Code, or "non-qualified stock options", at the
discretion of the Board and as reflected in the terms of the written instrument
evidencing an Option.
2. DEFINITIONS. As used herein, the following definitions shall apply:
(a) "Board" shall mean the Board of Directors of the Company.
(b) "Code" shall mean the Internal Revenue Code of 1986, as amended.
(c) "Common Stock" shall mean the Common Stock of the Company (par
value $.10 per share.)
(d) "Company" shall mean Helmstar Group, Inc., a Delaware corporation.
(e) "Committee" shall mean the Committee appointed by the Board of
Directors in accordance with paragraph (a) of Section 4 of the Plan, if one is
appointed.
(f) "Continuous Status as an Employee" shall mean the absence of any
interruption or termination of service as an Employee. Continuous Status as an
Employee shall not be considered interrupted in the case of sick leave, military
leave, or any other leave of absence approved by the Board.
(g) "Employee" shall mean any person, including officers and directors,
employed by the Company or any Parent or Subsidiary of the Company. The payment
of a director's fee by the Company shall not be sufficient to constitute
"employment" by the Company.
(h) "Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
(i) "Incentive Stock Option" shall mean a stock option intended to
qualify as an incentive stock option within the meaning of Section 422 of the
Internal Revenue Code of 1986, as amended.
(j) "Non-qualified Stock Option" shall mean a stock option not intended
to qualify as an Incentive Stock Option.
(k) "Option" shall mean a stock option granted pursuant to the Plan.
(l) "Optioned Stock" shall mean the Common Stock subject to an Option.
<PAGE>
(m) "Optionee" shall mean an Employee or other person who receives an
Option.
(n) "Parent" shall mean a "parent corporation", whether now or
hereafter existing, as defined in Section 425(e) of the Internal Revenue Code of
1986, as amended.
(o) "Securities Act" shall mean the Securities Act of 1933, as amended.
(p) "SEC" shall mean the Securities and Exchange Commission.
(q) "Share" shall mean a share of the Common Stock, as adjusted
in accordance with Section 11 of the Plan.
(r) "Subsidiary" shall mean a "subsidiary corporation", whether now or
hereafter existing, as defined in Section 425(f) of the Internal Revenue Code of
1986, as amended.
3. STOCK.
Subject to the provisions of Section 11 of the Plan, the maximum
aggregate number of shares which may be optioned and sold under the Plan is
350,000 shares of Common Stock. If an Option should expire or become
unexercisable for any reason without having been exercised in full, the
unpurchased Shares which were subject thereto shall, unless the Plan shall have
been terminated, become available for further grant under the Plan.
4. ADMINISTRATION.
(a) Procedure. The Company's Board of Directors may appoint a Committee
to administer the Plan. The Committee shall consist of not less than three
members of the Board of Directors who shall administer the Plan on behalf of the
Board of Directors, subject to such terms and conditions as the Board of
Directors may prescribe. Once appointed, the Committee shall continue to serve
until otherwise directed by the Board of Directors. From time to time the Board
of Directors may increase the size of the Committee and appoint additional
members thereof, remove members (with or without cause), and appoint new members
in substitution therefor, fill vacancies however caused, or remove all members
of the Committee and thereafter directly administer the Plan.
If a majority of the Board of Directors is eligible to be granted
Options or has been eligible at any time within the preceding year, a Committee
must be appointed to administer the Plan. The Committee must consist of not less
than three members of the Board of Directors, all of whom are "non-employee
directors" as defined in Rule 16b-3 of the General Rules and Regulations
promulgated under the Exchange Act and "outside directors" under Section 162(m)
of the Code.
(b) Powers of the Board. Subject to the provisions of the Plan, the
Board, or the Committee shall have the authority, in its discretion: (i) to
grant Incentive Stock Options, in accordance with Section 422A of the Internal
Revenue Code of 1986, as amended, or to grant Non-qualified Stock Options; (ii)
to determine, upon review of relevant information and in accordance with Section
8(b) of the Plan, the fair market value of the Common Stock; (iii) to determine
the exercise price per share of Options to be granted which exercise price shall
be determined in accordance with Section 8(a) of the Plan; (iv) to determine the
persons to whom, and the time or times at which, Options shall be granted and
the number of shares to be represented by each Option; (v) to interpret the
Plan; (vi) to prescribe, amend and rescind rules and regulations relating to the
Plan; (vii) to determine the terms and provisions of each Option granted (which
need not be identical) and, with the consent of the holder thereof, modify or
amend each Option; (viii) to accelerate or defer (with the consent of the
Optionee) the exercise date of any Option; (ix) to authorize any person to
execute on behalf of the Company any instrument required to effectuate the grant
of an Option previously granted by the Board; and (x) to make all other
determinations deemed necessary or advisable for the administration of the Plan.
<PAGE>
(c) Effect of the Board's Decision. All decisions, determinations and
interpretations of the Board shall be final and binding on all Optionees and any
other holders of any Options granted under the Plan.
5. ELIGIBILITY
(a) General. Incentive Stock Options may be granted only to Employees.
Non-qualified Stock Options may be granted to employees as well as directors
(subject to the limitations set forth in Section 4), independent contractors and
agents, as determined by the Board. Any person who has been granted an Option
may, if he is otherwise eligible, be granted an additional Option or Options.
The Plan shall not confer upon any Optionee any right with respect to
continuation of employment by the Company, nor shall it interfere in any way
with his right or the Company's right to terminate his employment at any time.
(b) Limitation on Incentive Stock Options. No Incentive Stock Option
may be granted to an Employee if, as the result of such grant, the aggregate
fair market value (determined at the time each option was granted) of the Shares
with respect to which such Incentive Stock Options are exercisable for the first
time by such Employee during any calendar year (under all such plans of the
Company and any Parent and Subsidiary) shall exceed One Hundred Thousand Dollars
($100,000).
6. TERM OF THE PLAN. The Plan shall become effective upon the earlier to occur
of (i) its adoption by the Board of Directors, or (ii) its approval by vote of
the holders of a majority of the outstanding shares of the Company entitled to
vote on the adoption of the Plan. The Plan shall continue in effect until March
31, 2009 unless sooner terminated under Section 13 of the Plan.
7. TERM OF OPTION. The term of each Option shall be ten (10) years from the date
of grant hereof or such shorter term as may be provided in the instrument
evidencing the Option. However, in the case of an Incentive Stock Option granted
to an Employee who, immediately before the Incentive Stock Option is granted,
owns stock representing more than ten percent (10%) of the voting power of all
classes of stock of the Company or any Parent or Subsidiary, the term of the
Incentive Stock Option shall be five (5) years from the day of grant thereof or
such shorter time as may be provided in the instrument evidencing the Option.
8. EXERCISE PRICE AND CONSIDERATION.
(a) The per Share exercise price for the Shares to be issued pursuant
to the exercise of an Option shall be such price as is determined by the Board,
but shall be subject to the following:
(i) In the case of an Incentive Stock Option:
(A) granted to an Employee who, immediately before
the grant of such Incentive Stock Option, owns stock
representing more than ten percent (10%) of the
voting power of all classes of stock of the Company
or any Parent or Subsidiary, the per Share exercise
price shall be no less than 110% of the fair market
value per Share on the date of grant, as the case may
be;
(B) granted to an Employee not subject to the
provisions of Section 8(a)(i)(A), the per Share
exercise price shall be no less than one hundred
percent (100%) of the fair market value per Share on
the date of grant.
<PAGE>
(ii) In the case of a Non-qualified Stock Option, the per
Share exercise price shall be no less than one hundred percent
(100%) of the fair market value per Share on the date of
grant.
(b) The fair market value shall be determined by the Board in its
discretion; provided, however, that where there is a public market for the
Common Stock, the fair market value per Share shall be the mean of the bid and
asked prices or, if applicable, the closing price of the Common Stock on the
date of grant, as reported by the National Association of Securities Dealers
Automated Quotation (NASDAQ) System or, in the event the Common Stock is listed
on a stock exchange, the fair market value per Share shall be the closing price
on such exchange on the date of grant of the Option, as reported in the Wall
Street Journal.
(c) The consideration to be paid for the Shares to be issued upon
exercise of an Option or in payment of any withholding taxes thereon, including
the method of payment, shall be determined by the Board and may consist entirely
of (i) cash, check or promissory note; (ii) other Shares of Common Stock owned
by the Employee having a fair market value on the date of surrender equal to the
aggregate exercise price of the Shares as to which said Option shall be
exercised; (iii) other Options owned by the Employee having an aggregate
in-the-money value equal to the aggregate exercise price of the Options being
exercised (Options are in-the-money if the fair market value of the underlying
Shares exceeds the exercise price of the Options),(iv) an assignment by the
Employee of the net proceeds to be received from a registered broker upon the
sale of the Shares or the proceeds of a loan from such broker in such amount; or
(v) any combination of such methods of payment, or such other consideration and
method of payment for the issuance of Shares to the extent permitted under
Delaware Law and meeting rules and regulations of the SEC to plans meeting the
requirements of Section 16(b)(3) of the Exchange Act.
9. PROCEDURES AND LIMITATIONS ON EXERCISE OF OPTIONS.
(a) Procedure for Exercise; Rights as a Stockholder. Any Option granted
hereunder shall be exercisable at such times and subject to such conditions as
may be determined by the Board, including performance criteria with respect to
the Company and/or the Optionee, and as shall be permissable under the terms of
the Plan.
An Option may not be exercised for a fraction of a Share.
An Option shall be deemed to be exercised when written notice
of such exercise has been given to the Company in accordance with the
terms of the instrument evidencing the Option by the person entitled to
exercise the Option and full payment for the Shares with respect to
which the Option is exercised has been received by the Company. Full
payment may, as authorized by the Board, consist of any consideration
and method of payment allowable under Section 8(c) of the Plan; it
being understood that the Company shall take such action as may be
reasonably required to permit use of an approved payment method. Until
the issuance, which in no event will be delayed more than thirty (30)
days from the date of the exercise of the Option, (as evidenced by the
appropriate entry on the books of the Company or of a duly authorized
transfer agent of the Company) of the stock certificate evidencing such
Shares, no right to vote or receive dividends or any other rights as a
stockholder shall exist with respect to the Optioned Stock,
notwithstanding the exercise of the Option. No adjustment will be made
for a dividend or other right for which the record date is prior to the
date the stock certificate is issued, except as provided in the Plan.
Exercise of an Option in any manner shall result in a decrease
in the number of Shares which thereafter may be available, both for
purposes of the Plan and for sale under the Option, by the number of
Shares as to which the Option is exercised.
<PAGE>
(b) Termination of Status as an Employee. If any Employee ceases to
serve as an Employee, he may, but only within thirty (30) days (or such other
period of time not exceeding ninety (90) days as is determined by the Board)
after the date he ceases to be an Employee of the Company, exercise his Option
to the extent that he was entitled to exercise it as of the date of such
termination. To the extent that he was not entitled to exercise the Option at
the date of such termination, or if he does not exercise such Option (which he
was entitled to exercise) within the time specified herein, the Option shall
terminate.
(c) Disability of an Employee. Notwithstanding the provisions of
Section 9(b) above, in the event an Employee is unable to continue his
employment with the Company as a result of his total and permanent disability
(as defined in Section 105(d)(4) of the Internal Revenue Code of 1986, as
amended), he may, but only within three (3) months (or such other period of time
not exceeding twelve (12) months as is determined by the Board) from the date of
disability, exercise his Option to the extent he was entitled to exercise it at
the date of such disability. To the extent that he was not entitled to exercise
the Option at the date of disability, or if he does not exercise such Option
(which he was entitled to exercise) within the time specified herein, the Option
shall terminate.
(d) Death of Optionee. In the event of the death of an Optionee:
(i) during the term of the Option who is at the time of his death
an Employee of the Company and who shall have been in
Continuous Status as an Employee since the date of grant of
the Option, the Option may be exercised, at any time within
twelve (12) months following the date of death, by the
Optionee's estate or by a person who acquired the right to
exercise the Option by bequest or inheritance, but only to the
extent of the right to exercise that would have accrued had
the Optionee continued living one (1) month after the date of
death; or
(ii) within thirty (30) days (or such other period of time not
exceeding three (3) months as is determined by the Board)
after the termination of Continuous Status as an Employee, the
Option may be exercised, at any time within three (3) months
following the date of death, by the Optionee's estate or by a
person who acquired the right to exercise the Option by
bequest or inheritance, but only to the extent of the right to
exercise that had accrued at the date of termination.
10. NON-TRANSFERABILITY OF OPTIONS. An Option may not be sold, pledged,
assigned, hypothecated, transferred, or disposed of in any manner other than by
will or by the laws of descent or distribution and may be exercised, during the
lifetime of the Optionee, only by the Optionee.
11. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION OR MERGER. Subject to any
required action by the stockholders of the Company, the number of shares of
Common Stock covered by each outstanding Option, and the number of shares of
Common Stock which have been authorized for issuance under the Plan but as to
which no Options have yet been granted or which have been returned to the Plan
upon cancellation or expiration of an Option, as well as the price per share of
Common Stock covered by each such outstanding Option, shall be proportionately
adjusted for any increase or decrease in the number of issued shares of Common
Stock resulting from a stock split or the payment of a stock dividend with
respect to the Common Stock or any other increase or decrease in the number of
issued shares of Common Stock effected without receipt of consideration by the
Company; provided, however, that conversion of any convertible securities of the
Company shall not be deemed to have been "effected without receipt of
consideration". Such adjustment shall be made by the Board, whose determination
in that respect shall be final, binding and conclusive. Except as expressly
provided herein, no issuance by the Company of shares of stock of any class, or
securities convertible into shares of stock of any class, shall affect, and no
adjustment by reason thereof shall be made with respect to, the number or price
of shares of Common Stock subject to an Option.
<PAGE>
In the event of the proposed dissolution or liquidation of the Company,
or in the event of a proposed sale of all or substantially all of the assets of
the Company, or the merger of the Company with or into another corporation, the
Board of Directors of the Company shall, as to outstanding Options, either (i)
make appropriate provision for the protection of any such outstanding Options by
the substitution on an equitable basis of appropriate stock of the Company or of
the merged, consolidated or otherwise reorganized corporation which will be
issuable in respect to one share of Common Stock of the Company; provided, only
that the excess of the aggregate fair market value of the shares subject to the
Options immediately after such substitution over the purchase price thereof is
not more than the excess of the aggregate fair market value of the shares
subject to such Options immediately before such substitution over the purchase
price thereof, or (ii) upon written notice to an Optionee, provide that all
unexercised Options must be exercised within a specified number of days of the
date of such notice or they will be terminated. In any such case, the Board of
Directors may, in its discretion, advance the lapse of any waiting or
installment periods and exercise dates.
12. TIME FOR GRANTING OPTIONS. The date of grant of an Option shall, for all
purposes, be the date on which the Board makes the determination granting such
Option. Notice of the determination shall be given to each person to whom an
Option is so granted within a reasonable time after the date of such grant.
13. AMENDMENT AND TERMINATION OF THE PLAN.
(a) General. The Board may amend or terminate the Plan from time to
time in such respects as the Board may deem advisable; provided, however, that
the following revisions or amendments shall require approval of the holders of a
majority of the outstanding shares of the Company entitled to vote:
(i) any increase in the number of Shares subject to the Plan,
other than in connection with an adjustment under Section 11
of the Plan;
(ii) any change in the designation of the class of persons eligible
to be granted options; or
(iii) any material increase in the benefits accruing to participants
under the Plan.
(b) Stockholder Approval. If any amendment requiring stockholder
approval under Section 13(a) of the Plan is made, such stockholder approval
shall be solicited as described in Section 17(a) of the Plan.
(c) Effect of Amendment or Termination. Any such amendment or
termination of the Plan shall not affect Options already granted and such
Options shall remain in full force and effect as if this Plan had not been
amended or terminated, unless mutually agreed otherwise between the Optionee and
the Board, which agreement must be in writing and signed by the Optionee and the
Company.
14. CONDITIONS UPON ISSUANCE OF SHARES. Shares shall not be issued pursuant to
the exercise of an Option unless the exercise of such Option and the issuance
and delivery of such Shares pursuant thereto shall comply with all relevant
provisions of law, including, without limitation, the Securities Act of 1933, as
amended, the Exchange Act, the rules and regulations promulgated thereunder, and
the requirements of any stock exchange upon which the Shares may then be listed,
and shall be further subject to the approval of counsel for the Company with
respect to such compliance.
As a condition to the exercise of an Option, the Company may require
the person exercising such Option to represent and warrant at the time of any
such exercise that the Shares are being purchased only for investment and
without any present intention to sell or distribute such Shares if, in the
opinion of counsel for the Company, such a representation is required by, or
appropriate under, any of the aforementioned relevant provisions of law.
<PAGE>
15. RESERVATION OF SHARES. The Company, during the term of this Plan, will at
all times reserve and keep available such number of Shares as shall be
sufficient to satisfy the requirements of the Plan.
Inability of the Company to obtain authority from any regulatory body
having jurisdiction, which authority is deemed by the Company's counsel to be
necessary to the lawful issuance and sale of any Shares hereunder, shall relieve
the Company of any liability in respect of the failure to issue or sell such
Shares as to which such requisite authority shall not have been obtained.
16. OPTION AGREEMENT. Options shall be evidenced by written option agreements in
such form as the Board shall approve.
17. STOCKHOLDER APPROVAL. Continuation of the Plan shall be subject to approval
by the stockholders of the Company within twelve (12) months after the date the
Plan is adopted by the Board. If such stockholder approval is obtained at a duly
held stockholders' meeting, it may be obtained by the affirmative vote of the
holders of a majority of the outstanding shares of the Company present or
represented and entitled to vote thereon. The approval of such stockholders of
the Company shall be (1) solicited substantially in accordance with Section
14(a) of the Exchange Act and the rules and regulations promulgated thereunder,
or (2) solicited after the Company has furnished in writing to the holders
entitled to vote substantially the same information concerning the Plan as that
which would be required by the rules and regulations in effect under Section
14(a) of the Exchange Act at the time such information is furnished.
If such stockholder approval is obtained by written consent in the
absence of a Stockholders' Meeting, it must be obtained by the written consent
of stockholders of the Company who would have been entitled to cast the minimum
number of votes which would be necessary to authorize such action at a meeting
at which all stockholders entitled to vote thereon were present and voting.
18. OTHER PROVISIONS. The Stock Option Agreement authorized under the Plan shall
contain such other provisions, including, without limitation, restrictions upon
the exercise of the Option, as the Board of Directors of the Company's shall
deem advisable. Any Incentive Stock Option Agreement shall contain such
limitations and restrictions upon the exercise of the Incentive Stock Option as
shall be necessary in order that such option will be an Incentive Stock Option
as defined in Section 422 of the Internal Revenue Code of 1986, as amended.
19. INDEMNIFICATION OF BOARD. In addition to such other rights of
indemnification as they may have as directors or as members of the Board, the
members of the Board shall be indemnified by the Company against the reasonable
expenses, including attorneys' fees actually and necessarily incurred in
connection with the defense of any action suit or proceeding, or in connection
with any appeal therein, to which they or any of them may be a party by reason
of any action taken or failure to act under or in connection with the Plan or
any Option granted thereunder, and against all amounts paid by them in
settlement thereof (provided such settlement is approved by independent legal
counsel selected by the Company) or paid by them in satisfaction of a judgment
in any such action, suit or proceeding, except in relation to matters as to
which it shall be adjudged in such action, suit or proceeding that such Board
member is liable for negligence or misconduct in the performance of his duties,
provided that within sixty (60) days after institution of any such action, suit
or proceeding a Board member shall, in writing, offer the Company the
opportunity, as its own expense, to handle and defend the same.
<PAGE>
20. OTHER COMPENSATION PLANS. The adoption of the Plan shall not affect any
other stock option or incentive or other compensation plans in effect for the
Company or any Subsidiary, nor shall the Plan preclude the Company from
establishing any other forms of incentive or other compensation for employees
and directors of the Company or any Subsidiary.
21. COMPLIANCE WITH EXCHANGE ACT RULE 16b-3 AND SECTION 162(m) OF THE CODE.
Transactions under the Plan are intended to comply with all applicable
conditions of Rule 16b-3 under the Exchange Act and Section 162(m) under the
Code. To the extent any provision of the Plan or action by the Board fails to so
comply, it shall be deemed null and void, to the extent permitted by law and
deemed advisable by the Board.
22. SINGULAR, PLURAL; GENDER. Whenever used herein, nouns in the singular shall
include the plural, and the masculine pronoun shall include the feminine gender.
23. HEADINGS, ETC., NO PART OF PLAN. Headings of Articles and Sections hereof
are inserted for convenience and reference; they constitute no part of the Plan.
EXHIBIT 4.6
HELMSTAR GROUP, INC.
Incentive Stock Option Agreement
[Date]
Helmstar Group, Inc., a Delaware corporation (the "Company"), pursuant
to its _______ Incentive Compensation Plan (the "Plan"), grants to _________
(the "Optionee") a stock option to purchase a total of ______ shares of the
Company's Common Stock, par value ten cents ($.10) per share, at the price of
$_____ per share on the terms and conditions set forth herein and in the Plan.
This option is intended to be an incentive stock option as defined in section
422A of the Internal Revenue Code of 1986.
1. Duration.
(a) This option was granted on the date first above written.
(b) This option shall expire at the close of business on
November 30, 2002 (the "TerminationDate").
2. Written Notice of Exercise.
This option may be exercised only by delivering to the
Secretary of the Company at its principal office within the time specified in
paragraph 1, a written notice of exercise substantially in the form described in
paragraph 8.
3. Anti-Dilution Provisions.
(a) If there is any stock dividend, stock split, or combination of
shares of Common Stock of the Company, the number and amount of shares then
subject to this option shall be proportionately and appropriately adjusted; no
change shall be made in the aggregate purchase price to be paid for all shares
subject to this option, but the aggregate purchase price shall be allocated
among all shares subject to this option after giving effect to the adjustment.
<PAGE>
(b) If there is any other change in the Common Stock of the Company,
including recapitalization, reorganization, sale or exchange of assets, exchange
of shares, offering of subscription rights, or a merger or consolidation in
which the Company is the surviving corporation, an adjustment, if any, shall be
made in the shares then subject to this option as the B0oard of Directors may
deem equitable. Failure of the Board of Directors to provide for an adjustment
pursuant to this subparagraph prior to the effective date of any Company action
referred to herein shall be conclusive evidence that no adjustment is required
in consequence of such action.
(c) If the Company is merged into or consolidated with any other
corporation, or if it sells all or substantially all of its assets to any other
corporation, then either (i) the Company shall cause provisions to be made for
the continuance of this option after such event, or for the substitution for
this option of an option covering the number and class of securities which the
Optionee would have been entitled to receive in such merger or consolidation by
virtue of such sale if the Optionee had been the holder of record of a number of
shares of Common Stock of the Company equal to the number of shares covered by
the unexercised portion of this option, or (ii) the Company shall give to the
Optionee written notice of its election not to cause such provision to be made
and this option shall become exercisable in full (or, at the election of the
Optionee, in part) at any time during a period of 20 days, to be designated by
the Company, ending not more than 10 days prior to the effective date of the
merger, consolidation or sale, in which case this option shall not be
exercisable to any extent after the expiration of such 20-day period. In no
event, however, shall this option be exercisable after the Termination Date.
<PAGE>
4. Investment Representation and Legend of Certificates.
The Optionee agrees that until such time as a registration
statement under the Securities Act of 1933 becomes effective with respect to the
option and/or the stock, the Optionee is taking this option and will take the
stock underlying this option, for investment and not for resale or distribution.
The Company shall have the right to place upon the face of any stock certificate
or certificates evidencing shares issuable upon the exercise of this option such
legend as the Board of Directors may prescribe for the purpose of preventing
disposition of such shares in violation of the Securities Act of 1933, as
amended.
5. Non-Transferability.
This option shall not be transferable by the Optionee other than by will or by
the laws of descent or distribution, and is exercisable during the lifetime of
the Optionee only by the Optionee.
6. Certain Rights Not Conferred by Option.
The Optionee shall not, by virtue of holding this option, be entitled to any
rights of a stockholder in the Company.
7. Expenses.
The Company shall pay all original issue and transfer taxes
with respect to the issuance and transfer of shares of Common Stock of the
Company pursuant hereto and all other fees and expenses necessarily incurred by
the Company in connection therewith.
8. Exercise of Options.
(a) This option shall become exercisable, in accordance
with its terms, as follows:
50% commencing three years after the date of grant
75% commencing four years after the date of grant
100% commencing five years after the date of grant
provided however that the number of shares for which
this Incentive Stock Option first becomes exercisable
in any calendar year, if any, shall be reduced so
that the aggregate fair market value (determined at
the time each option was granted) of such shares
together with all other shares of Common Stock first
exercisable in that calendar year under all other
Incentive Stock Options of the Company held by the
Optionee shall not exceed $100,000.
(b) An option shall be exercisable by written notice of
such exercise, in the form prescribed by the Board of
Directors (the "Board") or the Committee
administering the Plan (the "Committee"), to the
Secretary of the Company, at its principal office.
The notice shall specify the number of shares for
which the option is being exercised (which number, if
less than all of the shares then subject to exercise,
shall be 50 or a multiple thereof) and shall either
be accompanied by payment of consideration (in the
form specified below) in the amount of the full of
the purchase price of such shares.
(c) The form of consideration to be paid for the shares
to be issued upon exercise of an Option shall be cash
or cheek; or in the discretion of the Board or the
Committee: (i) a promissory note; (ii) other shares
of Common Stock owned by the Optionee which are then
publicly saleable under Rule 144 or other applicable
exemption under the Securities Act and have a fair
market value on the date of surrender equal to the
aggregate exercise price of the shares as to which
this Option shall be exercised; (iii) an assignment
by the Optionee of the net proceeds to be received
from a registered broker upon the sale of the shares
or the proceeds of a loan from such broker in such
amount; or (iv) any combination of such methods of
payment, or such other consideration and method of
payment for the issuance of shares which complies
with the rules and regulations promulgated by the SEC
with respect to plans meeting the requirements of
Section 16(b)(3) of the Exchange Act, to the extent
permitted under Delaware Law.
(d) Any promissory note (the "Note") shall be in the form
prescribed by the Board or the Committee, in the
principal sum of the purchase price and duly executed
by the Optionee and shall bear interest at the
Applicable Federal Rate (as such term is defined in
the Internal Revenue Code of 1986) in effect on the
date of the Note.
(e) No shares shah be delivered upon exercise of any
option until all laws, rules and regulations which
the Board or the Committee may deem applicable have
been complied with. If a registration statement under
the Securities Act of 1933, as amended is not then in
effect with respect to the shares issuable upon such
exercise, the Company may require as a condition
precedent that the person exercising the option give
to the Company a written representation and
undertaking, satisfactory in form and substance to
the Board or the Committee, that he is acquiring the
shares for his own account for investment and not
with a view to the distribution thereof.
<PAGE>
(f) The person exercising an option shall not be
considered a record holder of the stock so purchased
for any purpose until the date on which he is
actually recorded as the holder of such stock in the
records of the Company.
(g) This option shall be exercisable only so long as the
Optionee shall continue to be an employee of the
Company and within the thirty (30) day period after
the date of termination of his employment or any
earlier date on which the option expires in
accordance with its terms, except that if Optionee is
an employee of the Company at the time of his death
then this option shall be exercisable by his personal
representative within the twelve-month period next
succeeding the death of the optionee or any earlier
date on which the option expires in accordance with
its terms.
9. Continued Employment.
Nothing herein shall be deemed to create any employment
agreement or guaranty of continued employment or limit in any way the Company's
right to terminate Optionee's employment at any time.
HELMSTAR GROUP, INC.
By: _________________________________
George Benoit
Chairman of the Board and President
Accepted as of the date
first set forth above.
- ---------------------------
EXHIBIT 5.1
MORSE, ZELNICK, ROSE & LANDER
A LIMITED LIABILITY PARTNERSHIP
450 PARK AVENUE
NEW YORK, NEW YORK 10022-2605
212 838 1177
FAX 212 838 9190
October 14, 1999
Helmstar Group, Inc.
2 World Trade Center, Suite 2112
New York, New York 10048
Re: Registration Statement on Form S-8
--------------------------------------
Dear Sirs:
We have acted as counsel to Helmstar Group, Inc., a Delaware
corporation (the "Company"), in connection with the preparation of a
registration statement on Form S-8 (the "Registration Statement") to be filed
with the Securities and Exchange Commission (the "SEC") under the Securities Act
of 1933, as amended (the "Act"), to register the offering by the Company of
shares of Common Stock, par value $.10 per share (the "Shares"), issuable upon
exercise of options granted under the Company's 1990 Incentive Compensation Plan
and to be granted under the Company's 1999 Stock Option Plan (collectively, the
"Plans").
In this regard, we have reviewed the Restated Certificate of
Incorporation of the Company, as amended, resolutions adopted by the Company's
Board of Directors, the Plans, the form of Option Agreements granted thereunder
(the "Option Agreements"), and such other records, documents, statutes and
decisions as we have deemed relevant in rendering this opinion.
Based upon the foregoing, we are of the opinion that the Shares
issuable upon exercise of the options granted and to be granted under the Plans
have been duly and validly authorized for issuance and when issued and delivered
as contemplated by such Plans and the Option Agreements will be legally issued,
fully paid and non-assessable.
We hereby consent to the use of this opinion as Exhibit 5.1 to the
Registration Statement. In giving this opinion, we do not hereby admit that we
are acting within the category of persons whose consent is required under
Section 7 of the Act or the rules and regulations of the SEC thereunder.
Very truly yours,
/s/ Morse, Zelnick, Rose & Lander, LLP
--------------------------------------
Morse, Zelnick, Rose & Lander, LLP
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in the Registration Statement (Form
S-8) pertaining to the 1990 Incentive Compensation Plan and the 1999 Stock
Option Plan of Helmstar Group, Inc. of our report, dated February 23, 1999, with
respect to the consolidated financial statements of Helmstar Group, Inc.
included in its Annual Report on Form 10-KSB for the year ended December 31,
1998, filed with the Securities and Exchange Commission.
/s/ Richard A. Eisner & Company, LLP
- -------------------------------------
Richard A. Eisner & Company, LLP
New York, New York
October 14, 1999
